THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.3106 OF 2018 JUDGMENT: (per Hon’ble Sri Justice K.Surender)

1. The Appeal is filed by the appellant/accused, aggrieved by the judgment dated 26.10.2018 in S.C.No.76 of 2016, on the file of the Principal Sessions Judge at Adilabad. The appellant was convicted for the offence punishable under Section 302 of IPC and sentenced to undergo life imprisonment for murdering his wife, Rathod Shoba Bai.

2. Heard learned counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent-State.

3. On 04.06.2015, around 3:30 p.m., P.W.1, who is the son of the deceased’s sister, went to the Police Station and lodged a complaint alleging that he came to know that the appellant quarreled with the deceased, suspecting her fidelity and hit her on the head with an axe. He immediately rushed to the deceased’s house and found her in an unconscious state in a pool of blood. She was immediately shifted to the hospital. At the time of shifting the deceased to the hospital, his mother/P.W.5, cousin brother/P.W.2, and P.W.6 were present.

4. On the basis of information given by P.W.1, the crime was registered by P.W.17 and the FIR was dispatched to the concerned Magistrate. Thereafter, he went to the scene of offence. There, he found a pool of blood, a blood stained shirt, and a towel. The scene of the offence is the house of the deceased. The incriminating materials were seized from the scene. The deceased died while undergoing treatment on the next day. The investigation was then handed over to P.W.20. P.W.20 went to the hospital and conducted the inquest of the dead body, and the dead body was then sent for postmortem examination.

5. Postmortem examination was conducted by P.W.19, who found the following injuries:

1. Three laceration measuring 6 x 0.5cm x cavity deep, 4 x 0.5 cm x cavity deep, 2 x0.5 cm x cavity deep present over mid parietal region. Fracture of skull over mid parietal region along line of the injuries above mentioned. Brain tissue is protruded one. Diffuse sub dural and sub arachnoid haemorrhage present all over the brain. About 500 gms of blood marks present at the base of the brain.

2. Fracture of radius and ulna present.

3. Right eye is blackened.

4. Left eye is blackened.

6. According to P.W.19, the death was due to a head injury, which would have been caused by axe/M.O.5.

7. The appellant was apprehended on the same day, i.e., 04.06.2015. The appellant was interrogated, and pursuant to his confession, M.O.5 was seized. The seizure was made from the bushes beside the Government college, which is located at a distance from the residence.

8. On the basis of the confession and seizure affected at the instance of the appellant, including blood stained wearing apparel of the deceased, the charge sheet was laid.

9. Learned Sessions Judge, on the basis of circumstantial evidence, found the appellant guilty.

10. Learned Legal Aid counsel appearing for the appellant would submit that there is no direct evidence, and the circumstances relied upon by the prosecution to make out a case against the appellant are doubtful. Apart from the alleged suspicion entertained by the witnesses, there is no other evidence to connect the appellant with the death of the deceased. No one has seen the appellant near the house when the incident took place. Even according to the prosecution witnesses, the appellant and the deceased quarreled long ago and were living separately. Though P.W.2 stated that the appellant stayed with the deceased, however, in the absence of any witnesses who can confirm the appellant’s presence in the house on the date of the incident, the conviction is improper.

11. Learned counsel relied on the judgment of the Hon’ble Supreme Court in Gargi v. State of Haryana, 2019 9 SCC 738, wherein the Court discussed circumstantial evidence, the ‘last seen’ theory, and the absence of direct evidence to establish motive.