HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.112 OF 2008 28.12.2010 Between: State of A.P., rep. by the Public Prosecutor. ..Appellant And Mohd. Sadullah ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.112 OF 2008 JUDGMENT: (Per Sri Justice P.Swaroop Reddy) This appeal is filed by the State against the judgment of the learned I Additional Metropolitan Sessions Judge, Hyderabad in S.C.No.521 of 2004, dated 14.2.2006. The case of the prosecution is that the accused Mohd. Sadullah had a grudge against P.W.1, the father of the deceased boy aged about 6 years, in view of the fact that on an earlier occasion P.W.1 and the brother of the accused went to attend a marriage party at Siddipet where the brother of the accused consumed toddy and developed restlessness and died and therefore, the accused was under the impression that P.W.1 was responsible for the death of his brother and he started threatening P.W.1 saying that he would take revenge. The further case of the prosecution is that in pursuance of his intention of taking revenge against P.W.1, on the intervening of 12/13.5.2004 the accused lifted the deceased boy of six years age from the house of P.W.1 and took him away to Hussainsagar bund through the stairs of Katta Maisamma temple and killed the boy by strangulation and throw him in the waters. Two persons, namely, Narasimha and Khasimbee have allegedly seen the accused taking away the boy with him. Later, a complaint was given to the police and the accused was arrested. At the instance of the accused, the dead body of the deceased was allegedly recovered from the place where he has allegedly thrown the dead body while it was floating in the waters at 3.00 p.m., on the same day itself. Thus, there is a case where the offence has taken place at 2.00 a.m., and major part of the investigation was completed by 3.00 p.m., within 12 hours. Charge sheet was filed under Section 363 and 302 IPC. The accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 8 were examined and Exs.P-1 to P-12 were marked apart from M.O.1. Considering the oral and documentary evidence, the learned Additional Metropolitan Sessions Judge acquitted the accused by judgment dated 14.2.2006 in S.C.No.521 of 2004. The point for consideration is whether there is any ground to interfere with the finding recorded by the learned Sessions Judge. P.W.1 is the father of the deceased boy who spoke about the motive for the accused i.e., the suspicious death of his brother and the accused developing hostile attitude towards P.W.1. It is further stated that on 12.5.2004 after having dinner, he slept in the house and during midnight the accused came to his house and took a beedi from him and left the place. At about 3.00 a.m., he woke up for attending calls of nature and after returning noticed that his son was missing. The other family members woke up and searched for his son and the locality people also gathered there. After some time, one Narasimha who was residing in the locality came to him and informed that the accused took one boy who was weeping and on enquiry the accused informed that the boy was the son of his brother. After that, one Khasimbee came to the house of P.W.1 and informed that she also saw the accused taking away the boy along with him and the boy was weeping. They searched for the accused and could not locate him. At about 11.00 a.m., he went to Musheerabad Police Station where he gave Ex.P-1 complaint. He was asked to wait out side. At 1.00 p.m., the accused was brought to the police station and the police enquired him, who confessed that he killed the boy and thrown him in Tank bund water near Katta Maisamma temple. He along with police and others proceeded to Katta Maisamma temple where the accused has shown the staircase of Katta Maisamma temple and informed that he has strangulated and hit the head of the boy to the staircase and shown the place where he has thrown the body of his son. Police searched for dead body with the help of two persons and within five minutes they could trace the body. Thus, according to P.W.1, he gave complaint at 11.00 a.m., and by 1.00 p.m., i.e., within two hours, the accused was arrested and made confession and he was taken to the Tank bund where the body was thrown. In the cross- examination, he stated that they generally bolt the house door from inside. P.W.2 is a person residing in the locality of P.W.1. On learning about the incident near Hussain Sagar, he helped in fishing out the body. According to him, he lifted the body from the water. Thus, there is nothing in the evidence against the accused. P.W.3 is a panch witness. According to him, the accused was in the custody of the police at 1.00 p.m., on 13.5.2004 and in their presence the police interrogated the accused, who confessed about the commission of offence and the police took the accused and the mediators to the place where the accused has thrown the dead body of the boy near Katta Maisamma temple and the body was recovered from the water. This witness was declared as hostile by the prosecution. P.W.4 is a Professor of Forensic Medicine, who conducted autopsy over the dead body of the deceased, who spoke about homicidal death of the deceased. P.W.5 stated that he is resident of Gandhinagar and on 13.5.2004 at 1.00 p.m., he and P.W.3 were going in front of Musheerabad Police Station and the Police Constable requested them to act as mediators and that the accused made confession about killing and throwing the body of the deceased in Hussain Sagar and he has shown the place where the body was recovered. P.W.6 is the photographer who photographed the body of the deceased. P.W.7 is the Sub Inspector of Police, Musheerabad Police Station at the time of the incident. According to her, on 13.5.2004 at 11.00 a.m., P.W.1 came and reported the matter and the same was reduced into writing and took signature and registered a case in Cr.No.179 of 2004 under Section 365 IPC and issued F.I.R. After making enquiry from the locality people, she deputed a Constable to apprehend the accused and the deputed Constable apprehended the accused in Indira Park at about 12.00 noon and produced before her at 12.30 p.m. P.W.8 is the Inspector of Police who completed the investigation. Thus, it is a case of circumstantial evidence. Narasimha and Khasimbee, who allegedly seen the deceased in the company of the accused were not examined to say that it was the accused that has taken away the deceased. As per Ex.P-1, P.W.1 stated that he was sleeping in the house and at 12 O’ clock in the midnight the neighbours created nuisance, he woke up and again slept. Again at 3 O’clock he got up for urination and found his son missing. At that time one Narasimha resident of the same locality and one Khasimbee informed that at about 2.00 a.m., the accused was taking a boy who was weeping. P.W.1 did not say anything about the accused coming at midnight and asking for beedi. It is introduced in P.W.1’s evidence that the accused came to him and asked for beedi. In case such a thing is really happened, the same would have been certainly mentioned in Ex.P-1. P.W.1 used to close the door from inside, as such there was no possibility for the accused to take away the boy. According to P.W.7, Sub Inspector of Police at about 11.00 a.m., the complaint was given by P.W.1 and she deputed a Police Constable to apprehend the accused and even by 12.00 noon the accused was apprehended and at 12.30 p.m., he was produced before her, which looks quite unbelievable. It is not as if the accused was arrested from the place of his business or house and he was allegedly found at Indira Park. It is difficult to believe that after killing the boy the accused was waiting near the scene of offence for being arrested by the police. The evidence of P.W.8, C.I. of Police is that in pursuance of the confession of the accused he led the police and mediators to Katta Maisamma temple situated at Lower Tank bund and the accused shown the place where he has thrown the dead body of the deceased boy into water, which was situated opposite to Kandukuri Veeresalingam statute and the body was taken from the water. None of these witnesses (P.Ws.7 and 8) spoke about the body being found floating on the water. They only spoke about tracing of the body at the instance of the accused. According to the evidence of P.W.5 the body was found floating on the water exactly opposite to Kandukuri Veeresalingam statute. In case the body was floating on the water, there is nothing like searching and locating. Anybody could have seen without the accused showing the same. Narasimha and Khasimbee who have allegedly seen the accused taking the boy were not examined. The only evidence that could have linked the accused to the offence is the recovery of the dead body at his instance, which cannot be believed as the body was floating on water at a public place like Tank Bund. As already referred to above, the circumstance of complaint being made at 11.00 a.m., and by 12.00 noon the accused being apprehended would show that the prosecution case is probably not true. There is no serious motive for the accused to kill the deceased. As per the prosecution case, the accused was suspecting that P.W.1 has mixed some thing in toddy and after consuming it, the brother of the accused died. There is no material on record to P.W.1 had any motive to kill the brother of the accused. Thus, it is a case of circumstantial evidence where there is no motive at all and the chain of circumstance is not complete to prove that the accused alone caused the death of the deceased. In the circumstances, we do not see any ground to interfere with the judgment under appeal. The criminal appeal is accordingly dismissed. ________________ V.ESWARAIAH, J. _____________________ P.SWAROOP REDDY, J. 28.12.2010 kpr