Thangirala Kalyani vs The State

N.Y. Hanumanthapa, J.—These appeals are preferred by the accused (A. 1) in S.C. No. 82/94 on the file of the Sessions Judge. Nellore assailing the conviction and sentence inflicted upon her to undergo imprisonment for life for the offence punishable u/s 302, IPC., for causing the death of her husband Thangirala Hanuma Prasad (hereinafter referred to as the deceased). However A. 2 was found not guilty and accordingly acquitted.

The case of the prosecution is that about 2 and half months prior to 30-7-1993 appellant''s marriage was performed with the deceased and prior to marriage appellant was residing with her sister Ramadevi in the house of her maternal aunt Veluri Lalithamma of Janathapet. During her stay there, she developed illicit intimacy with A. 2. Her maternal aunt advised her to severe her connection with A. 2 but the appellant did not heed her advice. Then she sent appellant to Ammavaripalem to her parents house. Subsequently the marriage of the appellant with the deceased was performed against her wishes. The deceased P.W. 1 and their family members have no prior knowledge about this fact and aspiartions of the appellant. Thereafter the appellant went to her in-laws house and did not maintain cordial relations with the deceased and with the in-laws. P.W. 1 had a fond hope that the appellant would change her attitude by severing her connection with A. 2. However she planned to elope with A. 2 and was waiting for an opportunity. As the passion towards A. 2 was developing very strong, she started ill-will towards her husband. She felt that the deceased was an obstacle in her love affair. The appellant and A. 2 met at railway station on 30-7-1993 in the presonce of P.W. 6 Shaik Rafi, Tailor, where the appellant and A. 2 conspired to commit murder of the deceased and later to elope. P.W. 6 over-heard this. After returning from railway station on the same day 8.30 p.m. the appellant mixed poison used for killing rats in the food and served the poisonous food to the deceased. The remaining unused portion of poison powder was concealed in her purse and kept the same in her trunk box. The appellant and the deceased went to the upstairs of the house of P.W. 1 to sleep, whereas P.W. 1 and his sons P.Ws. 2 and 3 were sleeping in the ground floor. In pursuance of the plan, A. 2 went to the house of P.W. 1, armed with knife and by the time he reached upstairs, he found the deceased fell asleep and appellant was waiting for his arrival. It was 11 p.m. by the time A. 2 reached the place and in pursuance of their common intention to commit murder of the deceased, the appellant beat the deceased with pestle over his head, A. 2 stabbed the deceased over his face and caused multiple injuries. The deceased who was in deep sleep went to the state of unconsciousness. A2 escaped from the scene of occurrence under the impression that the deceased succumbed to the injuries on the spot. The appellant was also under the impression that the deceased died on the spot. The appellant in order to create an impression in the minds of her in-laws and whomsoever that may come to the scene of offence that some thieves committed the murder of the deceased, removed one pair of gold bangles, one pair of silver leg chains, one gold chain with pearls and one yellow thread with two gold thali bottulu, black beeds and two small keys which were on her person at the time of committing the above offence and threw them away outside of the house of P.W. 1 near to the scene of offence and rushed down the upstairs shouting ''thieves'', ''thieves''. After hearing this, P.Ws 1 to 3 woke up and on enquiry came to know from the appellant that thieves snatched away the gold ornaments from her. As the deceased did not accompany the appellant. P.W. 1 went to the upstairs and found the deceased in a pool of blood in an unconscious state. Then P.W. 3 Tangirala Sree Rammurthy took the deceased to the hospital and the deceased succumbed to the injuries on the way to the hospital. Meanwhile A. 1 went out of the house and proceeded towards southern side. P.W. 4 Keena Venkata Subba Rao woke up on hearing the galata at the house of P.W. 1 came out and found the appellant going alone. When he asked the appellant about her movement, she confessed to him that she committed murder of her husband by causing head injury to him with a pestle and so saying the appellant managed to escape. Then P.W. 5 Rasaputra Bhagath Singh also went to the house of P.W. 1 after learning about the death of the deceased and while searching for clues of the offenders, they found gold jewellery worn by the appellant in the premises of P.W. 1. Later P.W. 1 found the appellant absconding and suspected that the appellant committed the murder of his son and gave a report to Kavali Town Police Station at about 2 a.m. on 31-7-1993 and his report was registered as a case in Crime No. 114/93 u/s 302, I.P.C., by S.I. of Police. The S.I. of Police P.W. 16 took up the investigation, inspected the scene of offence at 7 a.m. on 31-7-1993 in the presence of mediators and seized the blood stained earth, blood stained bed sheets and one pestle at the scene of offence. He also seized the gold ornaments which were thrown by the appellant after commission of the offence under a mazahar. Inquest was held over the dead body of the deceased in Government Hospital at 9 a.m. on 31-7-1993. During the course of investigation, on 3-8-1993 at about 5 a.m. the Inspector of Police, Kavali P.W. 17 and his staff, in the presence of mediators, arrested the appellant in Bitragunta Railway Station and seized blood stained langa from her person and recorded the confessional statement under cover of mahazar attested by mediators. A. 1 led them along with mediators to the house of P.W. 1, opened the trunk box and poison box. P.W. 17 seized the purse and the poison packet in the presence of mediators under a mahazar. The Inspector of Police and staff went to the house of A. 2 and pointed out to him as to who participated in the offence. As he was trying to escape, he was detained by the police and after arrest, the Inspector of Police seized one knife produced by A. 2 from his house which was used in the commission of offence. The Medical Officer who conducted autopsy over the dead body of the deceased, opined that the cause of death was due to shock and haemorrhage due to head injury, fracture of both parietal and frontal bones. On 8-3-1993 at about 10 a.m. P.W. 1 identified one pair of gold bangles, recovered by police during the course of investigation as belonging to the deceased''s wife and other ornaments belonging to the appellant, all worn by her just prior to the commissions of offence. After completion of investigation, a charge-sheet was filed before the Additional Judicial First Class Magistrate, Kavali which was registered as P.R.C. No. 42/93. As the offence alleged is one exclusively to be tried by the Sessions Court, the learned Magistrate committed the case to the Sessions Court, Nellore. The learned Sessions Judge after verifying the records, took cognizance of the offence punishable u/s 302. IPC., against the appellant and A. 2-Raghu and registered the case in S.C. 82/94 and the following charge was framed :

"That you on or about the 30th day of July, 1993 at about 11.30 p.m. at Induruvaristreet, Kavali at the house of Tangiralla Seetharama Sastry, did commit murder, in furtherance of your common intention, causing the death of Tangiralla Hanuma Prasad (husband of A. 1 of you (sic) by beating with pestle by A. 1 and stabbing with knife by A. 2 and thereby committed an offence punishable u/s 302 of Indian Penal Code read with Section 34 of Indian Penal Code and within my cognizance".

In order to prove its case the prosecution has examined as many as 17 witnesses and marked 19 documents. On defence side, one J. Rama Rao, the then correspondent of Eenadu was examined as D.W. 1, 161 statement of P.Ws 3 and 7 were marked as Exs.D. 1 and D. 2. So also the relevant portions at page Nos. 1 and 3 published in Eenadu newspaper dated 1-8-1993 were marked as Exs.D. 3 and D. 4. The prosecution also made use of M.Os. 1 to 14.

P.W. 1 is the father and P.Ws. 2 and 3 are the brothers of the deceased. P.W. 4 is a neighbour. P.W. 5 is the retired constable before whom the extra judicial confession was made by the accused. P.W. 6 is the tailor who overheard the conspiracy between the appellant and A. 2 about committing the murder of the deceased and the elope (who later turned hostile). Another important witness is P.W. 11, the maternal aunt of the appellant in whose house the appellant and her sister had stayed for some time. P.W. 12 is the doctor who conducted post-mortem examination over the dead body of the deceased. P.Ws. 15, 16 and 17 are the police officers of Kavali Police Station. Ex.P. 1 is the report of P.W. 1 given to Kavali I Town Police Station; Ex.P. 3 is the inquest report in Crime No. 114/93 of Kavali I Town Police Station; Exs.P. 4 and P. 5 are the portions of 161 statements of P.Ws. 10 and 11; Ex.P. 6 is the postmortem certificate issued by P.W. 12 as to the cause of death of the deceased; Ex.P. 7 is the Chemical Examiner''s Report; Exs.P. 8 to P. 10 are the seized, mahazars; Ex.P. 11 is the identification mahazar relating to M.Os. 2 to 5; Ex.P. 12 is the F.I.R. in Crime No. 114/93; Ex.P. 17 is the Chemical Examiner''s report. The trial Court after considering the entire evidence, satisfying that the theory of the prosecution is entirely based on circumstantial evidence and that there are no direct eye witnesses to the incident alleged to have been caused, believing the statements of P.Ws 1 to 4 and contents of Ex.P. 1 coupled with the theory of recovery of certain blood stained clothes, found that A. 1 alone was responsible for causing death of the deceased and convicted her for an offence punishable u/s 302, I.P.C. and sentenced her to undergo imprisonment for life. However, with regard to A. 2 the Court below found that the offence alleged was not free from any doubt. Thus holding acquitted A. 2 by giving him benefit of doubt. The Court also observed that with regard to A. 1 the prosecution placed reliable, convincing, consistent and corroborating and strong evidence which proves beyond doubt that she participated in the crime and she committed the murder of her husband and that the injuries that were found at the time of post-mortem examination corresponding to the injuries that were seen while holding inquest are sufficient to cause death of the deceased. It also observed that there are no other circumstances explained to disbelieve the theory of prosecution as to the involvement of A. 1 in causing the death of the deceased. Thus observing convicted and sentenced A. 1 as stated above. Aggrieved by the same, these appeals are preferred by the accused, one from the jail and another through Advocate.

Sri Muni Reddy, learned counsel for the appellant, urged that the conviction and sentence ordered by the Court below are quite arbitrary and contrary to the evidence adduced; that the trial Court committed a mistake in placing reliance on the statements of interested persons, namely, the father and the brothers of the deceased even though there are no eye witnesses to the occurrence; that when the case is based on circumstantial evidence, the trial Court should have noticed whether there is any suspicion as to the correctness or otherwise of the theory narrated by the prosecution; that when the prosecution did not speak a different story about the participation of both the accused, the trial Court should have applied some yardstick in case of both the accused instead of raising different yardsticks to reach the conclusion that appellant alone was responsible for causing the death of the deceased; that the trial Court should not have placed reliance on the extra-judicial confession since the law is quite clear that there cannot be any conviction on the basis of extra-judicial confession; that the theory of recovery of blood stained clothes were by the deceased should not have been believed as a circumstances to connect the accused to the offence alleged unless it is corroborated by the evidence and that the presence of pestle, if viewed from the evidence, is only invented one; that if the intention of the appellant was to elope with A. 2. she would not have left some gold bangles and other ornaments near the scene of offence and on the other hand she would have eloped with A. 2 along with those ornaments; that there is no explanation why the statement of the accused was not recorded for a period of more than four days from the date of offence; that the theory of prosecution that after committing the murder of her husband, she cried saying ''thieves'' ''thieves'' and thereafter informed the neighbours of her act is an artificial one, that too when she is physically disabled i.e., polio affected; that the statements of P.Ws 1 to 3 is a parrot like and if they suspected that the appellant was responsible for causing death of the deceased, they would not have allowed her to go from the house; that there is no explanation as to why the family members of the deceased kept silent for considerable time in not lodging a complaint and that the theory of prosecution is full of concoction, resulting in involvement of an innocent lady for an offence punishable u/s 302, I.P.C. Thus contending sought that the appeals be allowed and the conviction and sentence recorded by the learned Sessions Judge be set aside.

Smt. Susheela Devi, learned Public Prosecutor, contended with all seriousness and sincerely tried her best to convince as to the genuineness of the theory of prosecution. She further stated that though the prosecution story is based on circumstantial evidence and if all the circumstances are read together, the Court has to reach irresistable conclusion that the appellant was not innocent; that according to her the acquittal of A. 2 does not destroy the case of the prosecution since the evidence led created doubt regarding the involvement of A. 2 in the commission of offence; that each and every circumstance is corroborated and consistent to arrive at the conclusion and that even if the theory of food poisoning is ignored, the presence of gold ornaments, pestle itself is sufficient to come to a conclusion that appellant alone was responsible for causing death of the deceased. Thus contending she sought that the appeals be dismissed.

To know how far the Court below was right in reaching the conclusion and who are nearer to the truth, we not only went through the judgment of the Court below but also scanned the entire evidence. It has come in Ex.P. 1 about causing death of deceased, but it is not stated how it happened, except suspecting the appellant in the commission of offence. Therefore it is relevant to extract Ex.P. which reads :

"I performed the marriage of my seond son Hanuma Prasad with Kalyani, the niece of Kishore, daughter of one Durbhakula, Branch Post Master of Ammavaripalem. They were not having the relationship of wife and husband. She came to our house on conjugal dues without leading marital life. She is not heeding our wife words. Wife and husband were sleeping in the house usually, but today on the evening of 30-7-1993 at about 9 O''clock after taking meals, Kalyani alone slept on the upstairs. Even though I advised her to sleep in the house silently as they are usually sleeping in the house. But she did not heed. I asked Prasad the husband to go and sleep in the upstairs saying that it will be set right after some time. He too slept in the upstairs. I slept in the down stairs. At about 11 p.m. she came down raising cries thieves and said that thieves took away by force her pearls, neck-lace, two gold bangles. I called all and went to upstairs thinking as to why Prasad is not come as he is in the upstairs. I saw Prasad was in a pool of blood. My heart was filled with tears of ocean. She told to me only that thieves took away chain and bangles. She did not tell that my son Prasad received injuries. I myself went and saw as Prasad did not come. Why so, he is in pool of blood and groaning. Then I sent him with my son for the treatment to the Hospital. I learnt through my son that he died after some time when he took to the hospital. Myself, my son and Councillor Narayana searched and found in the compound all the articles that were lost. The reason for the murder is due to the grudges between my son, Prasad and daughter-in-law Kalyani, my daughter-in-law Kalyani killed my son Hanuma Prasad. This is my strong suspicion. As my health is not good, I came to the Police Station late and submitting for suitable action."

The evidence of P.Ws. 1 to 3, who are the father and brothers of the deceased, run on the same lines that they went upstairs after hearing cries of the appellant and found the deceased in pool of blood. None of them have stated that they saw the appellant causing death of the deceased, whereas the other witnesses spoke about the recovery of certain M.Os. both on the body of the appellant and A. 2, including pestle and knife. Regarding motive part though alleged not proved particularly when P.W. 6 overheard about the conspiracy between the appellant and A. 2 in murdering the deceased and eloping, the same is frustrated in view of he being turned hostile. Regarding the theory of poisoning the food and keeping the balance poison in trunk box, it is clear from the Chemical report Ex.P. 17 that the food does not contain demonstration of any poison in the viscera. Hence this allegation falls to ground. Coming to the permissibility of attaching importance to confessional statement and theory of recovery of M.Os. it is needless to say time and again the Supreme Court and this Court have pointed out that extra-judicial confession cannot be a basis for conviction and recovery of M.Os also cannot be a basis for conviction unless the same are corroborated by evidence. If inquest report Ex.P. 3 particularly para 15 is read properly, it speaks about a different story. Therefore, it is proper to extract, which is in telugu, here-under :

As far as post-mortem certificate is concerned, there is no dispute as it revealed the injuries found on the body of the deceased and the cause of death of the deceased as spoken to by the doctor P.W. 12. Though the investigating agency took a considerable time in investigating, but failed to collect that information which was quite necessary to disclose the truth. On the other hand it felt satisfied that the circumstances explained by the agency are sufficient to connect the accused to the offence alleged. Further the circumstances explained by the prosecution are not continuous in nature. Neither they are corroborating nor corresponding with each other. Each link is differed from the other and the story is full of improbabilities and discrepancies. However the trial Court based its conviction on the surmises and conjectures without taking into consideration as to when a conviction can be based particularly when the case solely rests on circumstantial evidence, that too on the basis of extra-judicial confession. Why the extra-judicial confession shall not be a basis for conviction, the Supreme Court in the case of Lakhanpal Vs. State of Madhya Pradesh, held as follows :

"Where in prosecution for offence of murder, prosecution witness deposed that he made the disclosure about the extra-judicial confession of the accused (regarding the mistake committed by him in killing his brother) for the first time in the police station and that he (stranger to the accused) never told about this to any one else though he met number of persons on the date of occurrence, under the circumstances it was unsafe to rely on the evidence of extra-judicial confession more so when no motive was either alleged or proved against the accused in killing his real brother."

Likewise in the case of The State of Punjab Vs. Bhajan Singh and Others, the Supreme Court said that the evidence of extra-judicial confession in the very nature of things is a weak piece of evidence. In the same decision the Supreme Court has pointed out that how the appreciation of evidence shall be in a case of murder based on circumstantial evidence in the absence of eye witnesses and that when circumstantial evidence suffers from number of infirmities, the conviction is not safe. This position has been further clarified by the Supreme Court in the case of Pohalya Motya Valvi Vs. State of Maharashtra, as : (Para 5)

"It is common ground that there is no direct evidence implicating the appellant. Prosecution case rests on circumstantial evidence. As the case depends on circumstantial evidence, at the outset the well-established principles governing the appreciation of evidence in a case dependent upon circumstantial evidence may be borne in mind. Briefly, the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence".

It is further held :

"The appreciation governing the appreciation of evidence in a case dependent upon circumstantial evidence are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstance must be of incriminating character. All the proved circumstances must provide a complete chain, no link of which must be missing and they must un-equivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence".

and also held that :

"Where two persons are charged of murder and the information given by one of the accused leading to the discovery of the murder weapon is capable of two interpretations i.e., (1) he was the person who concealed the weapon, or (2) that he had the knowledge of the place where it was hidden, the accused could not be convicted for murder on the basis of such information. The recovery of murder weapon becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gives information leading to its discovery was the person who concealed it. But where two accused are charged for murder and the information given by one leading to the discovery of murder weapon is capable of two constructions the one beneficial to the accused will have to adopted".

This position has been further explained by the Supreme Court in Kishore Chand Vs. State of Himachal Pradesh, wherein it was observed : (Para 4, 5, 6)

"In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to be accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities.

In other words when there is no direct witness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of doubt. In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The Court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accussed and it must be such as to show that within all probability the act must have been done by the accused and the accused alone".

In the case of Sarbir Singh Vs. State of Punjab, the above position has been further reiterated by the Supreme Court in the following terms : (Para 6 of Cri LJ.

"It is said that men lie but circumstances do not. Under the circumstances prevailing in the society today, it is not true in many cases. Sometimes the circumstances which are sought to be proved against the accused for the purpose of establishing the charge are planted by the elements hostile to the accused who find out witnesses to fill up the gaps in the chain of circumstances. In countries having sophisticated modes of investigation, every trace left behind by the culprit can be followed and pursued immediately. Unfortunately it is not available in many parts of this country. That is why Courts have insisted (i) the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established; (ii) all the facts so established should be consistent only with the hypothesis of the guilt of the accused and should be such as to exclude every hypothesis but the one sought to be proved; (iii) the circumstances should be of a conclusive nature; and (iv) the chain of evidence should not have any reasonable ground for a conclusion consistent with the innocence of the accused".

If the evidence adduced is compared to the principles laid down by the Supreme Court in a case of murder based on circumstantial evidence, we do not hesitate to hold that reasoning adopted by the trial Court in convicting the appellant for offence punishable u/s 302, I.P.C. is quite arbitrary and mis-appreciation of evidence. Further a scrutiny of the injuries found at the time of inquest and revealed in post-mortem examination and if the same are compared with the statement of the doctor, we hold that they were not consistent with each other. Thus, the entire story of the prosecution is full of suspicion and doubt. As such the conviction and sentence recorded by the learned Sessions Judge deserve to be set aside.

In the result, the appeals are allowed. The conviction and sentence inflicted upon the accused to undergo imprisonment for life for the offence punishable u/s 302, I.P.C., are set aside. The appellant shall be set at liberty forth with, if not required in any other case.

Appeal allowed.