V.K. Bramhanandam Achary and Another vs State of A.P.

N.Y. Hanumanthappa, J.—This Criminal Appeal is filed by Al and A2 in Sessions Case No.331 of 1994 on the file of the III Additional Sessions Judge, Tirupati, aggrieved by the order of conviction and sentence passed against them on 21-7-1997, which reads as follows:

(i) A1 was convicted for the offence punishable u/s 302, IPC, and sentenced to suffer imprisonment for life; and

(ii) A2 was convicted for the offence punishable u/s 302 read with 114, IPC, and sentenced to suffer imprisonment for life.

In the said Sessions Case, altogether 3 accused were tried for different offences, but the learned Sessions Judge found only A1 and A2 guilty and accordingly convicted and sentenced them as set forth supra and acquitted A3 of the charges framed against him.

The case of the prosecution is that A3 is the son of A2, through her 1st husband-T. Srinivasulu, and husband of Jyothamma, hereinafter referred to as ''the deceased''; that A1 is the paramour of A2; that A1 and A2 were living together as man and wife along with A3 and the deceased in the same house in Puttur town; that the marriage of A3 with the deceased was performed in the year 1990 and at the time of marriage the father of the deceased (PW1) presented A3 a gold ring of 1/2 sovereign besides clothes worth about Rs. 1,000/- and utensils worth about Rs.2000/-and also gold car ornaments and nose screw to the deceased; that A1 to A3 started harassing the deceased for her failure to bring more dowry; and that they have not allowed the deceased to go to her parents'' house. It is further alleged by the prosecution that Al, who seems to be a sexually sadist in nature. started harassing the deceased to satisfy his sexual lust; but the deceased used to refuse the same on one pretext or other. A3 was practically a puppet in the hands of A1. While so, on 16-2-1994 when A3 was sleeping in the varandah of their house during night time, Al tried to molest her and when the deceased resisted, Al throttled and killed the deceased with the help of A2 and to cover up the same, they reported to the neighbours that as the deceased was suffering with chest pain, they removed the buttons of her blouse and applied Amrutanjan to her chest. However, A3 did not inform anybody about it. All A1 to A3 ran away from the house leaving the body of the deceased in the said house. Munuswamy Achari (PW1), who is the father of the deceased, on coming to know about the death of his daughter came to the house of the accused and found the dead body of his daughter only in the house and, at that time, none of the accused were present, in the house. Therefore, on 16-2-1994 at 7 P.M., PW1 gave Ex.P1 report to PW11, Assistant Sub-Inspector of Police, Puttur Police Station, and the same was registered as a case in Crime No. 13 of 1994 of the said Police Station u/s 304-B IPC and issued Ex.P3 FIR. PWs.13 and 14 are the Investigating Officers in this case and PW13 after completion of investigation filed charge-sheet in the Court of the Additional Judicial I Class Magistrate, Puttur, who has taken cognizance of the case and numbered it as PRC No.10 of 1994. As the offences alleged against the accused arc exclusively triable by a Court of Session, the learned Magistrate committed the case to the Court of Session at Chittoor and the learned Sessions Judge, Chittoor, after registering the same as SC No.331 of 1991 made over the same to the HI Additional Sessions Judge, Timpati, for trial and disposal.

The learned III Additional Sessions Judge, Tirupati, after consideration of the entire material on record, framed the following charges against Al to A3;

(1) 304-B, IPC ..... against A1 to A3;

(2) 302, IPC ..... against A1;

(3) 302 read with 114, IPC .... against A2; and

(4) 302 read with 34, IPC ..... against A2.

The above said charges were read over and explained to the accused, but they pleaded not guilty and claimed to be tried.

The prosecution, in order to bring home the guilt of the accused, examined PWsl to 14 and got marked Exs.Pl to P14. On behalf of the accused none were examined, but they have got marked Exs.Dl to D3. Exs.Dl and D2 are certain portions in the 161(3) Cr.PC statement of PW1 and Ex.D3 is a portion from the 161(3) Cr.PC statement of PW7.

After completion of the prosecution evidence, the accused were examined u/s 313, Cr.PC, in respect of the incriminating material and circumstances available in the evidence of the prosecution witnesses, but they denied the same.

The learned Sessions Judge, after considering the entire material on record convicted and sentenced A1 and A2 as set forth in para 1 of this judgment and acquitted A3 of the charge framed against him u/s 304-B, IPC. Aggrieved by die order of conviction and sentence imposed against them, Al and A2 filed the present appeal.

Mr. Rajendra Bussa, learned Counsel appearing for the appellants attacked the Judgment of the trial Court on various grounds. He contended that there is no direct evidence to the incident in question, that the case entirely rests on the circumstantial evidence, that the circumstances relied upon by the prosecution are not proved beyond all reasonable doubt, that there is no motive established by the prosecution against A1 and A2; that the evidence of PW1 is highly-discrepant in material particulars, that the learned Sessions Judge based his conviction only on presumptions, assumptions, surmises and conjectures and that, therefore, the appellants are entitled for clean acquittal. On the other hand, Mr. Rasheed Ahmed, learned Additional Public Prosecutor, supported the Judgment of the learned Sessions Judge and contended that though the case is based on circumstantial evidence, the circumstances suggest the involvement of A1 and A2 in the incident in question, and that, therefore, the learned Sessions Judge is right in convicting and sentencing Al and A2 as set forth supra.

After hearing the learned Counsel for the parties, we have gone through the Judgment of the learned Sessions Judge and also the other material available on record.

PW1 - Pallipatti Munaswamy Achary - is the father of the deceased. He spoke about the performance of marriage of the deceased with A3 and the presentations given to A1 and his daughter at the time of marriage. He deposed that six months after the marriage, his daughter (deceased) complained to him that Al used to ask her to rub his back with soap at the time of taking bath and that he was misbehaving by catching hold of her hand. Then he advised the deceased to have patience and bring it to the notice of A3. Accordingly, the deceased brought the same to the notice of A3, but he disbelieved her version and abused the deceased that she is trying to divide the family. He further deposed dial the deceased also informed him that Al had been threatening to kill her in case she reveals the illtreatment and harassment. He further deposed that A2 also used to beat the deceased on her hands and fingers with the cooking instruments and that they never allowed the deceased to come to their house even for festivals or at the time of pregnancy. He also deposed that after giving birth to a son the deceased sent a word to him to take her back to his house as she was unable to bear the harassment of Al and A2 as she did not surrender to the sexual desire of A1. When he went to the house of the accused, they permitted him to take the deceased only to his house but not her children. As he was not interested to separate the mother and children, he declined to take the deceased to his house. Subsequently, three or five months prior to the incident, on a message from the deceased, he went to the house of the accused and found the deceased weeping in the kitchen. On his enquiry she told him that she had been unable to bear the illtreatment of the accused and she was ready to leave the children with the accused and come to his house. Accordingly, he took her to his house. He further deposed that two days later Al come to his house along with an advocate and questioned as if she had been brought without informing him and that he had warned them that there would be divorce if the deceased was not sent back. Thereupon, the deceased went to the house of the accused. He further deposed that on the date of the offence he received intimation that the deceased died; thereupon, he rushed to the house of the accused at 9.30 a m. and found injuries on the breast, neck and other parts of the body of die deceased and that the accused were not present in the house. Subsequently, he went to the Police Station and gave Ex.Pl report.

PWs.2, 3, 4, 5 and 6 arc the neighbours of the accused. They turned hostile to the prosecution. PW7, Pallipattu Nagaraja Achary, deposed in his evidence that PW1 is his cousin i.e., the son of his senior paternal uncle. He deposed about the performance of marriage between A3 and the deceased. He deposed that four days prior to her death he visited the house of the accused for inviting them to the ''kesakhandana and kamabbushana'' functions of his children and handed over the invitation to the deceased personally and also invited A2 and at that time A1 was not present in the house. He deposed that at that time the deceased was in a sorrowful mood. On his enquiry she told him that Al was beating her. He further deposed that on coming to know about the death of the deceased, he went to the house of the accused alongwith PW1 and other villagers and found the dead body of the deceased in the hall of the house of the accused. He found punching wounds on the shoulders and on the neck. He further deposed that none of the accused were present in the house at the time when they went there.

PW8, Reddyvari Govinda Reddy, was the ex-village Munsif He deposed that in the month of October, 1993 he was present when A1 came to the house of PW1 alongwith an Advocate and that Al threatened PW1 by saying that in case the deceased was not sent back, divorce would be given. Then the deceased stated that she need no mediation, that she would go back to the house of the accused and that her future would be decided as per her fate. He further deposed that the deceased told him that she would be beaten by Al and A3 if there was mediation.

PW9 is Dr. A.K. Vijayalakshmi, who along with Dr. Velayudha Reddy conducted autopsy over the dead body of the deceased and found the following external injuries:

(1) An abrasion on the right check measuring about 1" x 1/4".

(2) A transverse abrasion on the centre of middle of front of the neck about 2"x1/2" surrounded by contusion of 2-1/2"x1".

(3) A transverse abrasion on the left side of the neck measuring about 3"x1".

(4) Four crusentic abrasions on the right side of the neck measuring about 1/4"x1/8"size.

(5) An abrasion on the pinna of the right ear measuring about 1/2"x1/4".

(6) Multiple abrasions on the right fore arm measuring about 1/4"x1/4".

(7) Multiple abrasions on the front of left forearm each measuring about 1/4"x1/4".

(8) Multiple abrasions on the front of the chest upper part of the abdomen each measuring about 1/4"x1/4".

(9) Multiple abrasions on the front of right thigh each measuring about 1/2"x1/2".

(10) Multiple abrasions on the left leg each measuring about 1/2"x1/2".

Ex.P2 is the post-mortem certificate issued by her. She opined that the deceased would appear to have died due to asphyxia due to throttling by strangulation.

PW10 is K. Venugopal, Advocate. He deposed in his evidence that in October, 1993 he went to the house of PW1 along with A1 as A1 represented him that the deceased was taken away by PW1 without informing him. He deposed that both the parties have a talk with regard to their family affairs, but he did not hear them and that on that night itself the deceased was sent back along with A1.

Sri C. Munaswamy - PW11 is the then Assistant Sub-Inspector of Police of Puttur Police Station. He deposed about his receiving Ex.Pl report from PW1 and registering the same as Crime No.12 of 1994 and issuing Ex.P3 FIR and sending a requisition to the Mandal Revenue Officer of Puttur (PW12) for conducting inquest over the dead body of the deceased.

Sri A. Subba Rao - PW12 is then Mandal Revenue Officer of Puttur. He deposed about his recording Exs.P4 to P7 statements from the witnesses and conducting inquest over the dead body of the deceased. Ex.P8 is the inquest report.

PW13 is the then Inspector of Police, Puttur and PW14 is the then Sub-Divisional Police Officer of Chittoor, who deposed about the investigation made in this case and about the filing of the charge-sheet in this case.

As far as the death of the deceased is concerned, it is not a suicidal death, but it is a clear case of homicidal death. In order to prove that A1 to A3 were responsible for causing the said death, the prosecution examined PWs1 to 14 and got marked Exs.Pl to P14 as mentioned supra and the learned Sessions Judge considered the said evidence on record. Taking into consideration the two circumstances viz., the accused and the deceased were last seen together, and the dead body of the deceased lying inside the house of the accused, the trial Court presumed that Al and A2 must have committed the murder of the deceased, while acquitting A3. If a case is based on circumstantial evidence, what shall be the standard of evidence and its appreciation and what are the conditions to be fulfilled have been clearly laid down by the Supreme Court in number of decisions and the following are the few:

State (Delhi Administration) Vs. Shri Gulzari Lal Tandon, ;

Lakhanpal v. State of M.P., AIR 1979 SC 1620; and

Sarbir Singh v. State of Punjab, 1993 (Vol.I) Crimes (SC) 616.

In Anant Bhujangrao Kulkarni Vs. State of Maharashtra, , the Supreme Court while considering that the deceased was last seen alive in the company of the accused and finding the dead body of the deceased in a portion of a building belonging to the accused are sufficient to connect the accused with the offence, held as follows:

"The only circumstances that have been found established are that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 7 p.m., and that the dead body of the deceased was found in the Ladni near the residential portion of the appellant in Pargaonkar''s wada. The said two circumstances, in our opinion, cannot be said to be inconsistent with the innocence of the appellant and on the basis of these two circumstances alone, it cannot be held that the appellant was a party to the murder of the deceased. The conviction of the appellant for the offence u/s 302 read with Section 34 IPC cannot, therefore, be upheld".

The nature of the evidence available in the case was tested in the light of the principles laid down by the Supreme Court in Anant Bhujangrao Kulkarni''s case (supra) and we are of the view that the necessary circumstances which were required to exist or existence of links to form a complete chain of events are not found in this case. It is also not shown how A2 had any grouse against the deceased if Al was demanding the deceased to fulfil his sexual desire. It is also difficult to believe that A3, who is the son of A2 bom through one T. Srinivasulu would liave kept quiet if A1 was harassing his own wife for sexual lust. Impartial scanning of the evidence gives raise to doubt as to the involvement of Al and A2 also like A3, who was rightly acquitted by the trial Court. The role played by each of Al and A2 was not properly explained. Though A1 to A3 were charged and all of them were placed under similar circumstances, A3 was only acquitted; but no special reasons were given for convicting Al and A2. Therefore, giving benefit of doubt, Al and A2 also should have been acquitted. Hence, we are of the view that the learned Sessions Judge is not right in convicting A1 and A2 for the offences punishable under Sections 302 and 302 read with 114, IPC, respectively.

In the result, the Criminal appeal is allowed. The order of conviction imposed against Al and A2 (appellants herein) for the offence punishable under Sections 302 and 302 read with 114, IPC, respectively, and the sentence of imprisonment for life imposed on each of them are set aside and it is hereby directed that they be set at liberty forthwith if they are not required in any other case.