THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1015 OF 2004 DATED 6th DECEMBER, 2010. BETWEEN : S.Sive Prasad & another .. Appellants-accused and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1015 OF 2004 JUDGMENT: This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellants- Accused challenging the judgment, dated 19.04.2004, rendered in Sessions Case No.106 of 2000 on the file of the Court of Sessions, Prakasam Division, Ongole, wherein the learned trial Judge convicted the accused under Section 235 (2) Cr.P.C. and sentenced them to undergo rigorous imprisonment for one year and also to pay a fine of Rs.1,000/-, in default to suffer sentence for three months, for the offence punishable under Section 304 Part-II of Indian Penal Code (for short ‘IPC’). Prosecution case, in a nutshell, is that the accused and the deceased Hima Bindu, an unmarried girl of 22 years, were living in a small house at Srinivasa Nagar, Chirala. On the intervening night of 04/05.10.1999 deceased was found dead by the accused and on the 05.10.1999 morning the dead body was laid in the varanda of their house. On information by P.W.1-the Village Administrative Officer through Ex.P.1, Police registered a case. Police proceeded with investigation and found that the accused were suspecting the fidelity of their daughter and on the intervening night they killed the deceased. Hence, police filed charge sheet against A.1 and A.2. Cognizance of the case was taken by the learned Additional Munsiff Magistrate, Chirala, in P.R.C.No.66 of 1999. On committal, the learned Sessions Judge framed a charge under Section 302 IPC, for which, the accused denied the offence, pleaded not guilty and claimed for trial. In order to prove its case, Prosecution got examined PWs 1 to 8 and got marked Exs.P.1 to P.12. When examined under Section 313 Cr.P.C., accused denied the incriminating circumstances read over to them, which is available in the evidence of prosecution witnesses. But, they did not choose to adduce any oral or documentary evidence on their behalf. After evaluating the entire evidence, the learned Sessions Judge convicted the accused as stated above. Heard. The entire case of the Prosecution rests upon the circumstantial evidence, more particularly, the deceased who is the daughter of the appellants herein lived under the same roof along with the appellants, whereas the appellants are not in a position to inform the Court as to how the deceased died. Further, in the present case, the investigation agency miserably failed to file the charge sheet against the accused for the offence under Section 302 read with 34 IPC. When two persons are involved in a crime that too in a case of murder either it should be one under Section 34 IPC or if the accused are more than five persons, the prosecution should invoke the provision of section 149 IPC. In the present case, admittedly, charge sheet is filed only for the offence under Section 302 IPC. The learned Sessions Judge wrongly quoted the decision reported in Barendra Kumar Gosh v. King Emperor[1], which deals with section 34 IPC. Here, the Prosecution failed to file charge sheet under Section 34 IPC and also the learned Sessions Judge failed to frame charge under Section 34 IPC. In the absence of section 34 IPC, when two persons tried for an offence under section 302 IPC, the conviction under section 302 simplicitor will be bad in law. Further, in the present case, the appellants-accused when examined under Section 313 Cr.P.C. stated before the Court that they used to live under one roof, whereas the appellants used to sleep in a different room and the deceased used to sleep in another room and also they have stated that in the morning they have seen the dead body of the deceased and immediately informed the same to the police officials concern. In the absence of the prosecution establishing the fact that except the petitioners herein nobody can enter into the house of the deceased, it is highly unsafe to convict the accused for an offence under Section 302 IPC. Prosecution has also failed to establish the fact that there is no possibility of any person entering into the house in the night time. In a case of circumstantial evidence, when there is no specific evidence, attributing specific overt acts, alteration of offence to one under Section 304 Part II IPC is erroneous. The learned Sessions Judge has also not stated any reason for the same. The prosecution miserably failed to prove the case against the accused. As such, the conviction and sentence imposed on the appellants is liable to be set aside. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants in Sessions Case No.106 of 2000 by the trial Judge is hereby set aside. Appellants are acquitted of the charge levelled against them. ________________________ JUSTICE RAJA ELANGO Dated : 06.12.2010 sur [1] AIR 1925 PC page 1