THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
AND
THE HON'BLE DR. JUSTICE D. NAGARJUN
Criminal Appeal No.135 of 2014
JUDGMENT (per Hon'ble Sri Justice A. Venkateshwara Reddy):
This Criminal Appeal is directed against the judgment dated 17.01.2014 in Sessions Case (SC) No.280 of 2010 on the file of the learned IX Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at L.B. Nagar, wherein the accused No.1 was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and he was convicted for the said offence under Section 235 (2) of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.') and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for three months. Whereas, the accused No.2 was found not guilty of the offences punishable under Sections 302 and 109 of IPC and she was acquitted under Section 235 (1) of Cr.P.C. for both the offences.
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2. The prosecution case in brief is that the de facto complainant-PW.1 is native of Sajjapuram Village, Tanuku Mandal, West Godavari District. She is the mother of accused No.2-Bhagya Lakshmi. The marriage of accused No.2 was performed with one Bhaskar Rao of Machilipatnam about 10 years prior to this incident and due to differences between the wife and husband, she left his company, however, by that time she was conceived and carrying pregnancy. As such, she started living with her mother-PW.1 and gave birth to a male child on 12.07.2000. He is named as Naga Siva Kumar, the deceased. The accused No.2 along with her mother-PW.1 came to Hyderabad in search of their livelihood and started living at Subhasnagar. In the course of time, the accused No.1, who is their neighbour has developed close relationship with accused No.2, but the deceased boy who is aged about 10 years was objecting for accused No.2 going to the house of accused No.1. While so, on 27.11.2010 when the deceased boy-Naga Siva Kumar and his friend-Venkata Ramana- PW.4 were on the way to watch a movie at Shapurnagar, the accused No.1 took the deceased boy with him, went to Page 3 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 watch the movie, returned back to home by 02:00 p.m. PW.2, who is the sister of accused No.1, has served food to them. Thereafter at about 03:30 p.m. PW.2 went to her place of work to return the company uniform, the accused No.1 has grabbed the opportunity, closed the doors, hanged the deceased boy and smothered him to death with a pillow. When PW.2 returned home, the accused A.1 informed that the deceased boy was not responding, then PW.2 sprinkled water on his face since there was no response, PW.2 rushed to the work place of accused No.2 and informed about the incident. Immediately, the accused No.2 rushed to the house of accused No.1 and found the dead body of the deceased, in the meanwhile, PW.1 with the help of PW.3, who is her younger-son-in-law, took the deceased boy to the hospital of Dr. Laxman, who declared him dead. Accordingly, PW.1 gave a report to the police suspecting the accused No.1 and a case in Crime No.825 of 2010 for the offence punishable under Section 302 of IPC was registered.
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3. In the course of investigation, the accused No.1 was arrested and pursuant to his confession the police have also suspected the accused No.2, mother of the deceased, as he was objecting for illicit intimacy of the accused No.2 with accused No.1. Accordingly, the investigation discloses that the accused No.1 has committed the offence punishable under Section 302 of IPC, whereas the accused No.2 has committed the offence punishable under Section 302 read with Section 109 of IPC.
4. From the material available on record, it appears that after giving necessary copies as required under Section 207 of Cr.P.C., the case was committed by the learned Magistrate to the Court of Sessions. The learned Metropolitan Sessions Judge at Ranga Reddy District having registered this case, made over the same to the learned IX Additional District and Sessions Judge, Ranga Reddy District at L.B. Nagar, who framed the charges against the accused 1 and 2 for the offences punishable under Sections 302 and 109 of IPC, to which they pleaded not guilty and claims to be tried.
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5. During trial on behalf of the prosecution, in all PWs.1 to 12 are examined and Exs.P.1 to P.7 are marked. After closure of the prosecution evidence, both the accused were examined under Section 313 of Cr.P.C. with reference to incriminating material found against them, they denied the said offences in toto and reported no defence evidence.
6. The trial Court upon considering the entire evidence an on hearing both sides, found the accused No.2 not guilty for the offences punishable under Section 302 read with Section 109 of IPC and she was acquitted for the same under Section 235 (1) of Cr.P.C. Whereas, the accused No.1 was found guilty of the offence punishable under Section 302 of IPC and he was sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.1,000/-, in default of payment of fine amount, to suffer simple imprisonment for a period of three months. Feeling aggrieved by the judgment and conviction recorded against him, the appellant/accused No.1 filed this appeal.
7. Heard the learned counsel for the appellant/accused No.1 and the learned Public Prosecutor. The detailed Page 6 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 submissions made on either side have received due consideration of this Court.
8. It may be stated that the prosecution has in all examined 12 witnesses in support of their case. Among them, PW.1 is the de facto complainant, she is the grandmother of the deceased and mother of the accused No.2, she gave a report as in Ex.P.1 suspecting the accused No.1. PW.2 is the younger sister of accused No.1, she is the circumstantial witness. PW.3-Babji is the younger son- in-law of PW.1, he also suspected accused No.1. PW.4 is a friend of the deceased-Naga Siva Kumar. PW.5 is a panch witness for inquest panchnama as in Ex.P.3. PW.6 is a Registered Medical Practitioner, when the accused No.1 and PW.2 have taken the deceased boy to the hospital, he declared the deceased as died. PW.7 is the owner of the house where the accused No.1 was a tenant. PW.8 is the Doctor, who conducted autopsy over the dead body of the deceased and certified the cause of death. PW.9 is the panch witness for the scene of offence panchnama as in Ex.P.5. PWs.10 to 12 are the Investigating Officers. Page 7 of 16
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9. PW.1 is not an eye witness to the incident. This witness testified that on that day when PW.4 and the deceased were planning to watch a movie, on the way the accused No.1 intercepted and took way the deceased with him, they watched 'Orange' movie, returned back to home, had lunch at the house of accused No.1. She does not know what happened at the house of accused No.1. But at about 04:45 p.m. PW.2 informed that the deceased boy was not feeling well and he was not moving. Accordingly, they have shifted that boy to the hospital of PW.6 where he was declared dead. As such, she suspected the accused No.1 and gave a report to the police. In the cross-examination, she has stated that she has no personal knowledge about the incident that took place in her absence and she does not know what was recorded by the police in her statement.
10. PW.2 is the younger sister of accused No.1. This witness turned hostile and did not support the case of the prosecution. PW.3 is the younger son-in-law of PW.1 and supported the evidence of PW.1 stating that they rushed to Page 8 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 the house of accused No.1 and found the deceased boy in unconscious state, he was taken to the hospital of PW.6 where the Doctor declared as dead. The witness further stated that the accused No.1 also accompanied him to the hospital. On enquiry, accused No.1 told him that he along with the deceased went to the movie and returned to home and on the way the deceased fell down from his cycle, but he did not believe the version of accused No.1 and suspected that the accused No.1 might have killed the deceased boy. In the cross-examination, this witness stated that the injuries that were found on the dead body of the deceased were not looking like injuries caused by a fall from a cycle.
11. PW.4 is a friend of the deceased boy. This witness stated that on 27.11.2021 he along with the deceased were planning to watch a movie, but on the way the accused No.1 has picked up the deceased and they left to 'Orange' movie. He saw the accused No.1 and the deceased even in the afternoon. Later, he heard that the deceased received injuries by falling from cycle. When he went to the house Page 9 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 of accused No.1, he was told that the deceased was shifted to hospital. Further stated that he heard from some of the neighbours that the accused No.1 killed the deceased and found blood on the cheeks of the deceased.
12. PW.5 is a panch for inquest as in Ex.P.3 and stated that there were scratches and contusions on the dead body of the deceased. PW.6 is the Doctor, who declared the deceased boy as dead in the private hospital. PW.7 is the owner of the house and stated that the accused No.1, his parents and younger sister were tenants in his house and that he came to know about the death of deceased boy. The evidence of PWs.5 to 7 is not seriously disputed by the accused and these witnesses were not even cross- examined. Thus, the cause of death and the death of deceased boy and that the accused No.1 along with his family members living as tenants in the house of PW.7 remained unchallenged.
13. PW.9 is a panch witness for the scene of offence conducted on the house of accused No.1. This witness stated that Ex.P.5 is the scene of offence panchnama, Page 10 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 police have seized one pillow and that he has no prior acquaintance with the accused No.1. He has attested on Ex.P.5.
14. PW.8 is the Doctor, who conducted autopsy over the dead body of the deceased as in Ex.P.4 and testified that the cause of death is asphyxia smothering and Ex.P.4 is the post-mortem examination report. Though he was cross- examined on behalf of the accused No.1, his oral evidence and the contents of Ex.P.4 remained consistent throughout the cross-examination. Accordingly, the death of deceased and the cause of death of deceased is established with the oral evidence of PW.8 and the contents of Ex.P.4 and also the panch witness for inquest and the contents as in Ex.P.3.
15. PWs.10 to 12 are the Investigating Officers. PW.10 has received Ex.P.1 from PW.1 and issued First Information Report as in Ex.P.6, handed over the investigation to PW.11, who verified the investigation, visited the scene of offence, examined the witnesses, effected arrest of accused No.1, recorded his confession in Page 11 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 the presence of panch witnesses LW.13-Y. Malla Reddy and LW.14-M. Lingam as in Ex.P.7, but no incriminating material was seized under Ex.P.7. He also arrested the accused No.2, collected material objects, sent them for chemical examination and handed over the C.D. file to PW.12, who verified the investigation and filed the charge sheet.
16. Thus, out of 12 witnesses examined by the prosecution, PW.2 is the only circumstantial witness, who is the younger sister of the accused No.1, she saw the deceased for the first time in unconscious state, as informed to her by accused No.1 and immediately rushed to the work place of accused No.2 and PW.1 and informed them. Thereafter, the deceased boy was taken to the hospital to PW.6, where he was declared as dead.
17. Be it stated that there is no eye witness to the incident and the prosecution is totally relying on circumstantial evidence. PWs.1 & 3 have only suspected accused No.1, since the deceased boy was asking PW.1 & A.2 not to go to the house of accused No.1. Though it is Page 12 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 alleged by the prosecution that accused No.1 has developed illicit intimacy with accused No.2 and promised to marry her subject to the condition that she should not have children as such, the accused No.2 abetted the accused No.1 to kill the deceased boy, none of the witnesses have spoken through about the alleged illicit intimacy between the accused No.1 and accused No.2 or the proposal of accused No.1 to marry the accused No.2. That apart, the accused No.2 was found not guilty by the trial Court for abetment to cause death of the deceased and she was acquitted for the offences punishable under Section 302 read with Section 109 of IPC. Though PWs.1 and 3 have raised suspicion against the accused No.1, they did not mention in the entire evidence as to why they started suspecting the accused No.1, except PW.1 mentioning in her evidence that since the deceased boy prior to his death asked herself and accused No.2 not to visit the house of the accused No.1, they suspected the involvement of accused No.1 in the death of deceased boy. Page 13 of 16
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18. The law is well settled that suspicion, however, strong may be, it cannot take place of the proof and the accused cannot be convicted on mere suspicion, no matter how strong it may be. Similarly, where the circumstances are susceptible of two equally possible inferences, the Court should accept the inference, which favours the accused rather than an inference which goes in favour of the prosecution. Where the prosecution case squarely rests on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. Further, such circumstances from which an inference of the guilt of the accused is drawn have to be proved beyond any reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Equally, the principle of "last seen alive" applies only when the time gap is so small, that the possibility of any other person being the author of the crime becomes impossible.
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19. In the present case, PWs.1 & 3 have only suspected the accused No.1 since he was objecting PW.1 and A.2 from going to his house, but there is no basis for it. PW.4- friend of the deceased boy has stated that on that day when he along with the deceased were going to watch movie, the accused No.1 took the deceased with him and both of them went to 'Orange' movie, thereafter also he saw the deceased with the accused No.1. It is the evidence of PW.2 that she served food to accused No.1 and the deceased boy. Thereafter, they took rest and only at about 03:30 p.m. she went to her work place, by the time she returned back, it was informed to her that the deceased was not responding. Thus, the accused No.1 and the deceased alone were there in the house. Later, PW.3, accused No.2 along with accused No.1 have taken the deceased boy to the hospital of PW.6 where he was declared as dead.
20. Therefore, on overall consideration of the entire evidence, coupled with the fact that the accused No.2 is found not guilty for abetment to cause the death of Page 15 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 deceased boy and there is no evidence of the accused No.1 having illicit intimacy with the accused No.2, the mere fact that PWs.1 & 3 have suspected the involvement of accused No.1 itself or the deceased was found last seen alive with the accused No.1, is not sufficient to establish his guilt for the offence punishable under Section 302 of IPC. It is pertinent to note that as per the evidence of PW.11 though pillow was seized under the cover of panchnama-Ex.P.5, it also not exhibited and the Forensic Science Laboratory report is not filed to establish the blood marks/stains, if any, on the said pillow. Thus, there is no evidence to show that the accused No.1 used the said pillow for smothering the deceased or that he strangulated the deceased boy and made him to die due to asphyxia or due to smothering. In such circumstances, it is not safe to solely rely upon the evidence of PW.8 and contents of Ex.P.4 for recording the guilt of the accused No.1 for the offence punishable under Section 302 IPC. In that view of the matter, in our considered opinion the trial Court has committed error in finding the accused No.1 guilty of the offence punishable Page 16 of 16 AVR,J & Dr.DNR,J Crl.A.No.135 of 2014 under Section 302 of IPC and the appeal deserves to be allowed.
21. In the result, the Criminal Appeal is allowed setting aside the judgment and conviction dated 17.01.2014 in SC No.280 of 2010 on the file of the learned IX Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at L.B. Nagar recorded against the appellant /accused No.1. Consequently, the appellant/ accused No.1 is acquitted under Section 235(1) of Cr.P.C. for the offence punishable under Section 302 of IPC. He shall be set at liberty forthwith if not required in any other case. He is entitled for the refund of fine amount, if any paid by him.
__________________________________ A. VENKATESHWARA REDDY, J.
_______________________ Dr. D. NAGARJUN, J.
Date: 06.12.2022 Isn