THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.25 of 2010 Date: 31.03.2010 Between : Mohammad Roshan and another. … Appellants And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.25 of 2010 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri T. Bali Reddy, learned Senior Counsel, representing Sri K. Suresh Reddy, learned counsel appearing for the appellants-Accused Nos.1 and 2 as well as the learned Public Prosecutor appearing for the respondent-State. 2. Appellants are Accused Nos.1 and 2 in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 04.01.2010, in Sessions Case No.153 of 2009, passed by the XI Additional District and Sessions Judge (Fast Track Court), Tenali, Guntur District, convicting Accused Nos.1 and 2 for the offence punishable under Section 302 of Indian Penal Code (for brevity “IPC”) and sentencing them to undergo Life Imprisonment and also to pay a fine of Rs.500/- each, in default to suffer simpler imprisonment for three months. 4. The case of the prosecution, in brief, is that the deceased-Gangula Seshaiah was a resident of Nizampatnam. He was working as a lorry driver. Accused No.3 is his wife. They lived as tenants in the house of Accused No.1, who was working as Junior Assistant in a school. He developed illicit intimacy with Accused No.3. Even after the deceased vacated the house, their intimacy continued. Accused No.1 created a suspicion in the mind of Accused No.3 that her husband was suffering from AIDS. When Accused No.3 refused to cohabit with the deceased, disputes arose between them. When Accused No.3 expressed her grievance to Accused No.1, he decided to do away with the deceased. He sought the help of Accused No.4, who is a registered medical practitioner. Though Accused No.4 promised to give slow poison, it did not work. However, he introduced Accused No.2 to Accused No.1. While so, on 24.9.2008, P.W.1, brother of the deceased had an altercation with one Masthan Vali at the Bus Stand Centre, Nizampatnam. Masthan Vali was also working as a driver under common lorry owner, Vijaya Raju Varma. Masthan Vali threatened P.W.1 that he would see that the deceased would pay the amount of Rs.5,000/- to the owner. After hearing this conversation, Accused No.1 chalked out a plan with Accused Nos.2 to 4. In furtherance of their intention, Accused No.2 took the deceased to a brandy shop and thereafter brought him to the house of P.W.8, where Accused Nos.1 and 2 killed the deceased. 5. On the next day morning, P.W.1 received a telephone call about the death of his brother on Chinamatlapudi road. After seeing the dead body of the deceased, he went to Nagaram Police Station and gave Ex.P-1 report to P.W.12 S.I. of Police, who registered a case in Crime No.60 of 2008. After observing the scene of occurrence, he prepared observation report Ex.P-12 in the presence of P.W.11 and another. He also held inquest and prepared a report Ex.P-3. Later he sent the dead body for postmortem examination. Autopsy was conducted by one Dr. K.Narasimha Murthy and issued Postmortem Report under Ex.P- 22, which was proved by another doctor, P.W.14, who could identify the handwriting of Dr. K.Narasimha Murthy, since died on 26.9.2009. As per Ex.P-22, the death of the deceased was due to cervical spinal card rupture and laceration and haemorrhage. At the time of inquest, Shaik Mastan Vali was suspected to be the culprit. 6. While so, on 15.10.2008, Accused Nos.1 and 2 approached P.W.11, who was said to be incharge Village Revenue Officer of Chinamatlapudi village and who figured as mediator for Exs.P-12 and P-13, observation report and inquest report, respectively, and further who had no acquaintance nor seen Accused Nos.1 and 2 earlier, and told that they were involved in the murder of the deceased. Joint statement made by Accused Nos.1 and 2 was recorded by P.W.11 under Ex.P-14 and then he took them to Police Station and surrendered them to P.W.12 S.I. of Police. P.W.13 C.I. of Police having come to know about the same, went to the Police Station and questioned Accused Nos.1 and 2 and at the instance of Accused No.1 a wooden plank, which is said to have been used for killing the deceased, was recovered under Ex.P-17. At the instance of Accused No.2, the rikshaw, which was used for carrying the dead body, was recovered under Ex.P-16. Later he went to Nizampatnam and arrested Accused No.3. After completion of investigation he filed charge sheet against Accused Nos.1 to 4 for the offence under Section 120-B IPC and against Accused Nos.1 and 2 for the offences under Section 302 read with 34 IPC and under Section 201 IPC. 7. When the charges were read over and explained to the accused, they pleaded not guilty and claim to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P- 22, besides marking MOs.1 to 3 material objects. On behalf of the accused, none were examined and no documents were marked. 9. The trial Court, having considered the entire material including the evidence, both oral and documentary, available on record, acquitted Accused Nos.1 to 4 for the offence under Section 120-B IPC and acquitted Accused Nos.1 and 2 for the offence under Section 201 IPC, however convicted and sentenced Accused Nos.1 and 2 for the offence under Section 302 IPC, as stated above. Aggrieved by the same, the appellants-Accused Nos.1 and 2 have preferred the present criminal appeal. 10. Therefore, the only question that falls for consideration before this Court is as to whether the trial Court was justified in recording a finding that the Accused Nos.1 and 2 alone are responsible for the death of the deceased? 11. Admittedly, there are no eye witnesses to the occurrence and the entire case rests upon partially circumstantial evidence and to a major extent on the extra-judicial confession jointly made by Accused Nos.1 and 2 before P.W.11, incharge Village Revenue Officer. The evidence of the other witnesses is purely hearsay and nothing could be elicited from their evidence. Therefore, we do not find it necessary to refer to the evidence of the other witnesses. 12. The one and the only ground that has been shown by the trial Court in order to record the order of conviction and sentence for the offence under Section 302 IPC against Accused Nos.1 and 2 was that Accused Nos.1 and 2 have made a joint extra-judicial confession before P.W.11, who is incharge Village Revenue Officer and a stranger to the accused. It is also an undisputed fact that both Accused Nos.1 and 2 allegedly made a joint statement before P.W.11 and the same has been recorded, that too after a long lapse of 21 days. What is surprising to note is that the trial Court placed reliance on this particular piece of evidence of extra- judicial confession in order to convict Accused Nos.1 and 2 for the offence under Section 302 IPC. 13. At the outset, it is to be noticed that the extra-judicial confession as such is a weak piece of evidence. Unless the same is corroborated by other circumstances, it cannot gain any strength or would become significant. That apart, the apex Court time and again had expressed the view that a joint statement made by the accused confessing the commission of offence cannot be accepted. 14. In this regard, the learned Senior Counsel placed reliance on the judgments of the apex Court in HERAMBA BRAHMA v. STATE OF ASSAM[1] and SURINDER KUMAR v. STATE OF PUNJAB[2]. 15. In view of the proposition laid down by the apex Court in the decisions referred to supra, we are of the view that the joint statement allegedly made by Accused Nos.1 and 2 before P.W.11 cannot be accepted as a strong and sufficient circumstance in order to convict them for the offence under Section 302 IPC. 16. The other aspect to be noticed is that the statement was made before P.W.11, who is an incharge Village Revenue Officer and a stranger to Accused Nos.1 and 2. No prudent person or persons, in normal course, would approach the Village Revenue Officer, who is totally a stranger, in order to make confession regarding the commission of offence. 17. However, regardless of this fact, keeping in view the proposition laid down by the apex Court time and again that the joint statement made by the accused confessing the commission of offence cannot be accepted and inasmuch as there is no other piece of evidence available on record against the accused, we are of the view that the trial Court had committed a serious error in appreciating the evidence on record. In other words, the appreciation of evidence by the trial Court is not in conformity with the proposition laid down by the apex Court. 18. In view of the above said lapse on the part of the prosecution, we are of the view that the prosecution has failed to establish the guilt of the Accused Nos.1 and 2 beyond all reasonable doubt by placing proper evidence before the trial Court connecting them with the commission of offence. Therefore, Accused Nos.1 and 2 are entitled for the benefit of doubt. 19. In the result, the criminal appeal is allowed setting aside the impugned judgment, dated 04.01.2010, in Sessions Case No.153 of 2009, passed by the XI Additional District and Sessions Judge (Fast Track Court), Tenali, Guntur District, and the appellants-Accused Nos.1 and 2 are acquitted of the offence with which they were charged and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE RAJA ELANGO 31.03.2010. Msr THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.25 of 2010 31.03.2010 (Msr) [1] AIR 1982 SC 1595 [2] 1999 CRI.L.J. 267 (SC)