THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.472 of 2009 Date: 21-12-2009 Between Koram Lingaiah … Appellant/Accused and State of Andhra Pradesh, Rep. by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.472 of 2007 Oral Judgment: (per D.S.R.Varma, J.) Heard Ms Naseeb Afshan (Legal Aid), learned Counsel appearing for the appellant-accused and the learned Public Prosecutor appearing for the respondent-State. 2. This appeal is directed against the judgment of conviction and sentences, dated 01-3-2007, in Sessions Case No.754 of 2006, passed by the Sessions Judge, Karimnagar. 3. The case of prosecution, in brief, appears to be that the accused is the younger brother of one Koram Papaiah @ Papa Rao (hereinafter referred to as ‘the deceased’). The grievance of the accused appears to be that ignoring him, his younger brother, by name Beesu, was married to the daughter of P.W.6. This alliance was fixed by his deceased brother and their mother P.W.2. On 11-7-2005 at about 9 p.m., the accused came to the house of deceased armed with an axe and picked up a quarrel with him. The same was witnessed by P.W.1, wife of the deceased, and P.W.2. P.W.2 asked the accused not to quarrel and she would settle the issue on the next day. Then the accused threatened them and out of fear, they rushed into the village and in the meanwhile, the accused axed the deceased on his backside of the head, right side of stomach and on the back, due to which he died on the spot. One Vasam Laxmaiah (L.W.4) witnessed and intervened, who was also pushed aside and thereafter, the accused left with the axe. After some time P.Ws.1 and 2 returned home and found the body of deceased. Due to heavy rains the body was kept in the house and on the following day they informed the Sarpanch of the village and caste people and the dead body was taken in the bullock cart of P.W.4 and when they reached Pankena vagu, it was in spate and they were unable to proceed further. They waited there for some time as floods did not recede. Therefore, instead of venturing to cross the said vagu, the body of deceased was buried in Nandulaboru outskirts of the village. On 15-7-2005 P.W.1 lodged a report (Ex.P-1) with P.W.11 who registered the same as a case in Crime No.73 of 2005 for the offence under Section 302 of IPC and other formalities have been pressed into service. After more than 5 months upon a requisition made by P.W.11, the M.R.O., P.W.10, exhumed the body of deceased and was sent for post-mortem examination. The doctor, P.W.8, opined that the head injury was the cause of death of deceased and that after completing all the formalities, a charge- sheet was filed. 4. The accused pleaded not guilty to the charge framed under Section 302 of IPC and claimed to be tried. 5. In order to establish its case, the prosecution has examined P.Ws.1 to 13 and marked Exs.P-1 to P-9 and also M.O.1. No oral or documentary evidence was adduced on behalf of the accused. 6. The trial Court after gone through the evidence on record found the accused guilty, convicted and sentenced him to undergo life imprisonment and also to pay a fine of Rs.100/- and in default, to undergo simple imprisonment for 15 days for the said offence. 7. Aggrieved by the said judgment of conviction and sentences, the accused has preferred the present appeal. 8. The contention of learned Counsel for the appellant- accused is that there was inordinate delay of 4 days in lodging the report Ex.P-1 with the Police by P.W.1 and that there was no plausible explanation for such delayed report in such a vital case. The only explanation was that the vagu was in spate. It is further contended that there was also no reason for the body of the deceased to be exhumed after more than 5½ months precisely i.e., on 25-12-2005 in order to send the same to conduct post- mortem examination. 9. Even for this inordinate delay, there is no explanation coming forth either from the Investigating Officer P.W.11 or P.W.1. 10. Therefore, from the above events, what is obvious is that the accused was not sole responsible person for the death of deceased. 11. On the other hand, the learned Public Prosecutor contended that the judgment of the trial Court is right in all fours and accordingly to maintain the same. 12. Now, the point that arises for consideration in this appeal is as to whether the trial Court was right in finding the accused guilty of the offence with which he was charged ? 13. Point:- In this connection, it is to be seen that the date of occurrence is on 11-7-2005 and the complaint was given on 15-7-2005. 14. The only eyewitness in this case was one Vasam Laxmaiah (L.W.4), brother-in-law of deceased, who died by the time of commencement of trial and therefore, he could not be examined and as a result, there is no eyewitness at all and only basing on the circumstances available on record, the case has to be decided. 15. The first intriguing circumstance is that as to why the report Ex.P-1 was lodged with the Police after a delay of 4 days, more particularly when P.W.1, wife of the deceased, informed all the close relatives and also the Sarpanch of the village about the alleged attack by the accused against the deceased. She was not an eyewitness to the incident. Even according to her, after being threatened by the accused she went into the village to inform others and by the time she came back with others, she found that her husband was killed. 16. It is further more interesting to note that in her examination-in-chief, P.W.1 stated that since it was raining the body was shifted inside the house and was placed on a cot and the deceased was alive till the next day morning. In other words, the death had not taken place instantaneously. But the same was not mentioned in the report Ex.P-1 made to the Police. 17. Nextly, there is no reason for her to abstain from making a complaint immediately. There is no proper explanation coming forth. In fact, there is no explanation at all except saying that the river was in floods. How long the river was in floods was also not stated anywhere by any witness. If the flood recedes immediately a report ought to have been given to the Police. Therefore, the omission regarding when actually the flood was receded is a vital aspect to be noticed and raises any amount of doubt in the mind of the Court. 18. It is to be further sent that because of the floods, the body of deceased was buried at the bank of the river itself and they came back, what had happened subsequently – no body is aware of. Furthermore intriguing factor is that the body was exhumed at the instance/requisition of P.W.11 by P.W.10. Now on this situation also, there is nothing on record as to what was the reason for P.W.11 to order for exhumation of the dead body after more than 5½ months and on the spot, the post-mortem was conducted and it was noticed by the doctor that there was an injury at the occipital region on the head. 19. It is to be further noticed that there was no identification of the dead body at all conducted either by the Investigating Agency or by the other relatives or by P.W.1. Merely because there was a head injury on the skeletal remains of the deceased, it cannot be inferred automatically that the said body belongs to the deceased in the present case. 20. Therefore, in the circumstances, particularly the inordinate and unexplained delay in lodging the report Ex.P-1 and furthermore inordinate delay, which also remains to be unexplained in exhumation of the allegedly body of the deceased is another aspect, which makes the case of prosecution bottomless. The other witnesses are only supporting witnesses and their evidence does not throw much light on the case or capable of altering the decision of this Court. Their evidence is only hear- say. 21. Having regard to the facts and circumstances, we are of the view that the chain of circumstances are too weak to connect the accused with the offence with which he was charged and absolutely unsafe to convict him for the offence under Section 302 of IPC. Accordingly, we set aside the judgment of the trial Court and the consequent conviction and sentences imposed by it. 22. In the result, the appeal is allowed and the impugned judgment of conviction and sentence, dated 01-3-2007, in Sessions Case No.754 of 2006, passed by the Sessions Judge, Karimnagar, is set aside and consequently, the appellant-sole accused is acquitted and he shall be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. ___________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 21st December, 2009. Ak