JUDGMENT : C. Praveen Kumar, J. Heard Sri P. Badrinath, learned counsel for the appellant/accused and Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the Respondent/State. 2. The present appeal came to be filed challenging the conviction and sentence dated 26.11.2015 in Sessions Case No.19 of 2013 on the file of learned I Additional Sessions Judge, Nellore. 3. Originally, A.1 to A.5 were tried for the offences punishable under Section 498-A r/w. Section 34 of Indian Penal Code, 1860 [for short, “I.P.C.”] while A.1 alone was tried for the offence punishable under Sections 302, 201 I.P.C. 4. By its judgment, dated 26.11.2015, the learned Sessions Judge acquitted A.2 to A.5 for the offence punishable under Section 498-A r/w. Section 34 I.P.C. But, however, convicted A.1 for the offences punishable under Section 302 and sentenced him to suffer Life Imprisonment and to pay fine of Rs.2000/- in default to suffer Simple Imprisonment for three months. He was further convicted and sentenced to undergo Rigorous Imprisonment for two years and to pay fine of Rs.500/- in default to suffer Simple Imprisonment for one month for the offence punishable under Section 498-A I.P.C. The substantive sentences were directed to run concurrently. 5. The gravamen of the charge against the accused is that on 26.04.2012 at Nandigunta Village of Vinjamur Mandal, A.1 to A.5 subjected the deceased to harassment and thereafter on that day at 6.30 p.m. the accused beat the deceased on forehead and middle portion of the head, causing severe bleeding injuries and thereafter poured pesticide poison into her mouth to show it to be a case of suicide. 6. The facts, as culled out, from the evidence of prosecution witnesses, are as under:- (a) P.Ws.1 and 2 are the brothers of the deceased. A.1 is the husband of the deceased while A.2 and A.3 are the parents of A.1. A.4 is the brother of A.1 while A.5 is the wife of A.4. The marriage between the deceased and A.1 took place eighteen years prior to the incident. At the time of marriage, cash of Rs.50,000/- and Gold was given. Thereafter, the deceased started residing at Nandigunta Village along with A.1 to A.5. It is said that both of them lived happily for six or seven years and thereafter disputes arose between them. The marriage between the deceased and A.1 took place eighteen years prior to the incident. At the time of marriage, cash of Rs.50,000/- and Gold was given. Thereafter, the deceased started residing at Nandigunta Village along with A.1 to A.5. It is said that both of them lived happily for six or seven years and thereafter disputes arose between them. It is said that the deceased was being harassed physically and mentally on the pretext that there are no issues to them. The accused also used to threaten the deceased stating that they would perform second marriage to A.1. Whenever the deceased was informing P.W.1 about the same, he used to advise her to adjust herself. (b) On 24.04.2012, there was some function relating to inauguration of idol of God. P.W.1 invited the accused and deceased for the said function. The deceased stayed in the house of P.W.1 on 26.04.2012. It is said that on 26.04.2012, the deceased and P.W.3 went to their village, while P.W.1 stayed in Vinjamuru Village. At about 6.30 p.m., P.W.3 telephoned to P.W.1 stating that the deceased consumed poison. Immediately P.W.1 went to Seshagiri Hospital, Vinjamuru where he was informed by the doctor that the deceased died. It was informed by A.1 that the deceased died due to consumption of poison and A.3 was present beside her. They also noticed a bleeding injury above the forehead of the deceased and blood was oozing. P.W.1 proceeded to the Police Station at about 9.00 p.m. lodged a report with P.W.13-Sub Inspector of Police. Ex.P1 is the report. Basing on the said report, a case in Crime No.32 2012 came to be registered under Sections 302, 201 I.P.C. Ex.P14 is the First Information Report [F.I.R.]. (c) On the next day i.e. on 27.04.2012, P.W.13 visited the scene of offence; prepared an observation report and also a rough sketch which are marked as Ex.P15 and Ex.P16 respectively. He also got photographed the scene of offence with the help of Photographer. He then, proceeded to Praja Vaidyashala, Vinjamuru and conducted inquest over the dead body of the deceased on 27.04.2012 in the presence of mediators. Ex.P17 is the inquest report. He examined P.Ws.1, 2 and others and recorded their statements. Thereafter, he sent the body for Post Mortem examination to Government Hospital, Udayagiri. He then, proceeded to Praja Vaidyashala, Vinjamuru and conducted inquest over the dead body of the deceased on 27.04.2012 in the presence of mediators. Ex.P17 is the inquest report. He examined P.Ws.1, 2 and others and recorded their statements. Thereafter, he sent the body for Post Mortem examination to Government Hospital, Udayagiri. (d) P.W.12 who is working as Civil Assistant Surgeon in Community Health Centre, Udayagiri conducted autopsy over the dead body of the deceased on 27.04.2012 at 11.45 a.m. and noticed external injuries on the body. According to him, the cause of death was due to Organo Chloride an insecticidal poison, Hemorrhage shock due to head injuries coupled with Cardio-respiratory failure. According to him, injuries 1 and 2 are sufficient to cause death of the deceased. Ex.P12 is the Post Mortem report. (e) On 28.05.2012, P.W.13-Inspector of Police arrested A.1 at Nandigunta Bus Stand Centre and recorded the confessional statement of A.1 in the presence of P.Ws.7 and 8. Basing on the confession, A.1 lead the Police party to his house and showed the knife used in the commission of offence, which was hidden underneath the tree in a bush besides his house. On 28.05.2012 the Investigating Officer/P.W.13 added Section 498-A r/w.Section 34 I.P.C. against A.2 to A.5 and arrested them on 02.07.2012. He forwarded the Material Objects to RFSL Guntur. 7. After collecting all the necessary documents, PW.13 filed a charge sheet, which was taken on file as P.R.C.No.11 of 2012 on the file of the learned Judicial Magistrate of First Class, Udayagiri for the offences punishable under Sections 498-A, 302 and Section 201 r/w.34 I.P.C. 8. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C. were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of the Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned I Additional District and Sessions Judge, Nellore for trial and disposal in accordance with law. 9. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 10. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P1 to P21 and M.O.1 to M.O.6. 11. 9. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 10. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P1 to P21 and M.O.1 to M.O.6. 11. After the closure of Prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which, they denied. However, they did not adduce any evidence except Ex.D1-Portion of Section 161 Cr.P.C. statement of P.W.2 in support of their plea. In support of his case, the prosecution examined fourteen witnesses, out of them P.Ws.3 to 5, 7, 8, 9 and 11 did not support the prosecution case and were treated hostile witnesses by the prosecution. Relying upon the evidence of P.W.1 to P.W.3, the learned Sessions Judge convicted the A.1. Challenging the same, the present appeal came to be filed by the Appellant/A.1. 12. Sri P. Badrinath, learned counsel for the appellant mainly submits that there is absolutely no legal evidence on record to convict the accused. According to him, even as per the evidence of P.Ws.1 and 2 the death was due to consumption of poison by the deceased and as such it cannot be said that the accused has committed the offence under Section 302 I.P.C. Apart from that, learned counsel for the appellant would contend that though the deceased died in the house of A.1, there is no material to show that A.1 was present in the house at that time. Hence, presumption under Section 106 of Indian Evidence Act, 1872 also cannot be invoked. Learned counsel for the appellant would contend that the conduct of the accused assume significance for the reason he admitted the injured in the hospital by the people and A.3 was present by the side of the dead body of the deceased. Having regard to the above circumstances he pleads the conviction and sentence imposed by trial Court is doubtful. 13. Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the Respondent/State opposed the same contending that the burden is on the accused to explain as to how the deceased died, more so, when the body of the deceased was found in his house. 13. Sri S. Dushyanth Reddy, learned Additional Public Prosecutor, for the Respondent/State opposed the same contending that the burden is on the accused to explain as to how the deceased died, more so, when the body of the deceased was found in his house. In the absence of any explanation being given by A.1 in his Section 313 Cr.P.C. examination, except denial of the offence, submits that the accused has failed to discharge his burden in proving innocence. In view of the above circumstances, learned Additional Public Prosecutor would contend that it is a fit case where conviction and sentence imposed by trial Court requires no interference. 14. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 15. It is to be noted here that there are no direct eye witnesses to the incident and the case rests on circumstantial evidence. The only circumstance on which the prosecution relies upon is the injuries on the body of the deceased and the body being found in the house of the accused. In order to appreciate the same, it would be necessary for us to refer the evidence of P.W.1 and the evidence of the doctor. 16. P.W.1 in his evidence in chief deposes that the marriage between the accused and the deceased took place about eighteen years back and both of them lived happily for nearly six to seven years after their marriage and thereafter the accused started harassment both physically and mentally on the pretext that there were no issues to her. It is further stated that A.2 to A.5 used to threaten the deceased that they would perform second marriage to A.1. When the same was informed by the deceased to P.W.1 and others, they used to console her and advise her to adjust. While so, on 24.04.2012, the deceased came to the house of P.W.1 for a function and informed that the accused was harassing and beating her. The deceased stayed in their house till 26.04.2012 and thereafter along with P.W.3 went to the Nandigunta Village. At about 6.30 p.m. P.W.1 received a telephone call from P.W.3 stating that the deceased consumed poison and that she was admitted in the hospital. Immediately, P.W.1 and others went to the hospital at Vinjamur wherein they were informed by A.1 about deceased consuming poison. At about 6.30 p.m. P.W.1 received a telephone call from P.W.3 stating that the deceased consumed poison and that she was admitted in the hospital. Immediately, P.W.1 and others went to the hospital at Vinjamur wherein they were informed by A.1 about deceased consuming poison. A.3 was also by the side of the deceased. P.W.1 noticed an injury on the head and blood was oozing. 17. From the above, it is very much clear that the deceased consumed poison and that there were two injuries on the body of the deceased. In the cross-examination of P.W.1 it was elicited that A.1 has purchased site in the name of the deceased at Vinjamuru and that A.1 got treated the deceased at Aravind Kidney Centre, Nellore for kidney problem. The evidence on record, more particularly that of Investigating Officer would show that P.W.1 admits that in his earlier statements stated about the accused and deceased living happily for six to seven years. To a suggestion that the deceased committed suicide by consuming pesticide due to insult by A.1 was denied by him. It was further suggested to P.W.1 that he is due a sum of Rs.1.50 lakhs to A.1 which he borrowed on 25.02.2011 under a pronote. To a suggestion that there are disputes between himself and the accused with regard to the said transaction was denied by him. Therefore, what falls from the above is that the deceased consumed poison on the fateful day and that there were two injuries on the head of the deceased. 18. The question now is, whether the deceased committed suicide because of harassment made by the accused for demand of additional dowry or whether poison was forcibly administered? 19. It is to be noted here that the question of demanding additional dowry may not arise for the reason that A.1 purchased a site in the name of the deceased at Vinjamuru and that A.1 who spent money for treatment of the deceased for her kidney problem. If really, A.1 was demanding money he would not have purchased the site in the name of his wife and would not have spent money for her treatment at Aravind Kidney Centre, Nellore, but instead he would have asked P.Ws.1 and 2 to give money for expenditure. 20. If really, A.1 was demanding money he would not have purchased the site in the name of his wife and would not have spent money for her treatment at Aravind Kidney Centre, Nellore, but instead he would have asked P.Ws.1 and 2 to give money for expenditure. 20. Before dealing with the evidence of P.W.1, it would be appropriate to extract the evidence of P.W.2, who is another brother of the deceased. He, in his evidence states that on the fateful day at about 4.00 p.m. the deceased and P.W.3 proceeded to Nandigunta Village, while himself and P.W.1 stayed back at Vinjamuru. At about 6.00 p.m. P.W.2 received a phone call that the deceased consumed pesticide. He noticed injuries on the right side and back side of the head of the deceased. In the cross-examination, P.W.2 admits that he did not state before the Police when examined that he questioned the deceased, as to why A.1 did not come and the deceased informed that A.1 asked her to stay in their house and not to return to the marital home, as she has no issues. He further admits that he did not state before Police about P.W.3 going to the village on 23.04.2012. This evidence of P.W.2 is on the basis of information furnished by P.W.3 with regard to the cause of death. 21. P.W.2 in his chief-examination never deposed about any harassment for money or property by A.1. On the other hand, he states that A.1 looked after the deceased with love and affection for a period of ten years after their marriage. Later, disputes arose between them, as they had no issues. Therefore, the evidence of P.W.2 does not corroborate the evidence of P.W.1 with regard to the acts of harassment, if any, or for demand of property. In fact, his evidence is also silent with regard to the deceased informing them about the alleged acts of harassment by A.1. 22. P.W.3 is a crucial witness. He speaks about the deceased accompanying her on 26.04.2012 and also the information furnished by her about the cause of death. In her evidence in chief states that on the fateful day, herself and the deceased proceeded to Nandigunta Village, where she got down at her house while the deceased went to her house. Immediately thereafter, she received information about the deceased consuming pesticide. In her evidence in chief states that on the fateful day, herself and the deceased proceeded to Nandigunta Village, where she got down at her house while the deceased went to her house. Immediately thereafter, she received information about the deceased consuming pesticide. Immediately, she went to her house and by the time she went there, she was being taken in an Auto to hospital. This witness was treated hostile by the prosecution as she did not support the earlier statement. Though, P.W.3 was cross-examined, no suggestion was given to her about the presence of A.1 in the house at the time of incident. But, on the other hand, it was suggested that the deceased was taken to hospital. The suggestions given with regard to the manner, in which the incident took place, was denied by her. This evidence in our view does not help the prosecution case in any manner though she is a crucial witness examined to speak about the incident in question and the information furnished. But, however, she admits that on coming to know about the manner in which the deceased died, she informed the same about the condition of the deceased. 23. The only other evidence available on record to connect the accused with the crime is the evidence of Post Mortem doctor. P.W.12 is the doctor, who conducted Post Mortem examination on the body of the deceased. He noticed two injuries on the deceased body, which are as under:- (1) Incised lacerated injury on right frontal area of the head measuring about 2 x 2 x 1 cm. The edges of the injury is well defined sharp injury, aged about 14 to 16 hours, weapon is iron sharp edged. (2) Incised injury on parietal area of the head, measuring about 2 x 2 x 1 cm, edges well defined, sharp, aged about 14 to 16 hours, weapon with a sharp edged iron. After receipt of RFSL report, he opined that the death was due to (1) Organo Chloride an insecticidal poison; (2) Hemorrhage shock due to head injuries; and (3) Cardiorespiratory failure. P.W.12 in his chief-examination categorically states that the injuries 1 and 2 are sufficient to cause the death of the deceased. But, the question now is who caused those injuries? 24. P.W.12 in his chief-examination categorically states that the injuries 1 and 2 are sufficient to cause the death of the deceased. But, the question now is who caused those injuries? 24. As seen from the evidence available on record, though the deceased died within an hour after reaching the house of the accused, there is evidence as to who were present at that time, whether all the five accused were present or A.1 alone was present. In the absence of any evidence as to the persons who were present in the house at the time of the incident, presumption under Section 106 of Indian Evidence Act, 1872 cannot be invoked. 25. Be that as it may, the evidence on record nowhere establishes that she was assaulted and beaten, which lead to death of the deceased. The evidence of P.Ws.1, 2 and P.W.12 only establishes that the deceased died due to poison. It is nobody’s case that poison was forcibly administered to the deceased. At this stage, learned Additional Public Prosecutor would contend since there are two injuries on the head and those two injuries are responsible for the death, it has to be presumed that A.1 caused the injuries to the deceased, more so when those injuries are not self-inflicted injuries. It is true that these two injuries cannot be self-inflicted injuries, but at the same time it cannot also be said that it was A.1 who caused two injuries, more so, when other accused are living along with A.1 prior to the incident. 26. Further, P.W.12-Doctor, in his cross-examination admits that the injuries 1 and 2 namely two incised injuries on the head could be possible if the body comes into contact with a sharp edged point like stone, table edge and sun mica edged cot. That being so, the argument of the learned counsel for the appellant that the deceased could have sustained those injuries while falling down after consumption of poison cannot be ruled out. Hence, the argument of learned Additional Public Prosecutor that these two injuries are caused by A.1 and these two injuries are responsible for the death of the deceased cannot be accepted, in the absence of evidence to that effect, more so in the cross-examination of P.W.12 doctor states that the external injuries on the body of the deceased are not the only reason for the death to be caused. It would be appropriate to extract the same, which is, as under:- “The external injuries on the body of the deceased are not the only reason for death to be caused”. 27. At this stage, learned Additional Public Prosecutor would contend that since the deceased committed suicide because of harassment, conviction under Section 302 I.P.C. may be altered to Section 306 I.P.C. We are not in agreement with the same for the reason that there was no charge for an offence punishable under Section 306 I.P.C. Apart from that, as held by us earlier the evidence of P.W.1 does not get any corroboration from P.W.2 with regard to harassment either for property or money. Hence, the argument of Additional Public Prosecutor to alter the conviction from Section 302 I.P.C. to Section 306 I.P.C. also cannot be accepted, more so, when the death took place beyond seven years of marriage and no presumption under Section 113-A of Indian Evidence Act, 1872 can be invoked. Thus, in the given set of circumstances, we feel that it is a fit case where benefit of doubt can be given to the accused. 28. Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused in the Judgment dated 26.11.2015 in Sessions Case No.19 of 2013 on the file I Additional Sessions Judge, Nellore for the offences punishable under Sections 302 and 498-A of IPC, are set aside and the accused is acquitted for the said offences. Consequently, the appellant/accused shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellant/accused shall be refunded to him. Consequently, miscellaneous petitions, if any, pending shall stand closed.