HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO.84 OF 2008 Dated:14-11-2011 BETWEEN: Shaik Miya @ Kolemiya and another …Appellants AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO.84 OF 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellants herein are A.1 and A.2. A.1 was put on trial for the offence under Section 302 IPC and A.2 was put on trial for the offence under Section 302 read with 34 IPC in S.C.No.8 of 2007 on the file of V Additional District and Sessions Judge (III Fast Track Court) Nalgonda at Miryalguda for causing death of Shaik Sukemiya (hereinafter called as ‘deceased’) by hacking with an axe at his house situated at Kupaspally village. Learned Sessions Judge found both the accused guilty for the offences with which they stood charged, convicted them for the said offences and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2,000/- each, in default, to undergo rigorous imprisonment for one year. 2. The story of the prosecution as narrated during the course of trial is as under: Deceased is resident of Kupaspally Village and A.2 is his wife. A.1 is the step brother of A.2 and he is also resident of the same village. P.W.1-Panchayat Secretary of Srinathapuram set the criminal law into motion by lodging Ex.P.1 report stating that on 4.5.2006 at 7.00 a.m., on receipt of information about the death of the deceased, he rushed to the Village and saw the dead body of the deceased in front of his house. On enquiry, he came to know A.1 and A.2 caused the death of the deceased by beating with an axe at 10.00 p.m. on the previous night on the upper throat, chest and rear side of the right ear. His enquiry also revealed that A.2 has illegal intimacy with A.1 and that on the early hours at 5.00 a.m., both the accused went to the house of P.W.2 and confessed to have committed the offence. Basing on the said report, a crime was registered for the offence under Sections 302 read with 34 IPC under Ex.P.10-FIR by L.W.12 (not examined). P.W.8- Circle Inspector of Police took up investigation, recorded the statement of P.W.1 at the police station, visited the scene of offence, recorded the statements of P.Ws.2 and 3, conducted the scene of offence panchanama in the presence of P.W.6 and others, held inquest over the dead body of the deceased in the presence of P.W.6 and others, seized the bloodstained material objects 1 to 3 from the scene of offence, prepared scene of offence panchanama under Ex.P.6, rough sketch under Ex.P.7 and inquest report under Ex.P.8 and sent the dead body for post-mortem examination. P.W.7-Civil Assistant Surgeon conducted autopsy over the dead body of the deceased on 4.5.2006 at 4.15 p.m. and issued Ex.P.9 post-mortem certificate opining that the cause of death of the deceased was due to heamorrhage and shock due to multiple injuries. P.W.8 arrested the accused on 6.5.2006, recorded their confessional statements in the presence of P.W.6 and after completion of investigation and laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charges, read over and explained to the accused and the accused denied the charges and claimed to be tried. 3. To substantiate the case of the prosecution, P.Ws.1 to 8 were examined and Exs.P.1 to P.11 were marked besides material objects 1 to 3. On behalf of defence, no oral or documentary evidence was accused. 4. The learned Sessions Judge after evaluating the oral and documentary evidence held that unexplained reasons for the availability of the dead body of the deceased as well as MO-1- bloodstained axe in the house of the deceased in the night at 10.00 p.m., that too the presence of A.1 and A.2 at the crucial time are the strong circumstances to believe the version of the prosecution that nobody else have interested to kill the deceased other than the accused. If really A.1 and A.2 are not involved in the murder of the deceased, they ought to have lodged the complaint to the police for the death of the deceased and their conduct in not lodging the complaint would support the version of the prosecution that due to their illicit contacts, A.1 and A.2 might have eliminated the deceased and accordingly, found both the accused guilty for the offences and convicted and sentenced them as aforementioned. 5. Smt.Gayatri Reddy, learned counsel appearing for the appellants-accused, who has taken us through the entire evidence, strenuously contends that when the accused were taken into custody by the police on the date of the occurrence itself, showing their arrest on 6.5.2006 as spoken to by P.W.8 is not correct. None of the witnesses spoke about the alleged illicit intimacy between A.1 and A.2 and there was no evidence as to whether any panchayat was held in that regard previously or had the deceased admonished them prior to the incident to prove the motive on the part of the accused to eliminate the deceased. P.Ws.2,3 and 5 have not supported the case of the prosecution and what they have stated is that they have overheard the conversation among the villagers gathered at the scene of offence and therefore, the said hearsay evidence cannot be a substantive proof to convict the accused. In view of the same, the accused are entitled to acquittal by extending benefit of doubt. 6. On the other hand, learned Additional Public Prosecutor sought to sustain the conviction and sentence contending that when admittedly, the accused were present at the scene of offence, they ought to have lodged the complaint with the police and therefore, this conduct of the accused itself shows that it is none other than the accused who caused the death of the deceased and it is for the accused to explain the cause of death of the deceased. 7. Admittedly, there are no eyewitnesses to the occurrence. The entire case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the law laid down by the Apex Court in a decision reported in Padala veera Reddy v. State of A.P. (AIR 1990 SC 79): “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” Bearing the above principles in mind, it is to be seen whether the appellant is the assailant of the deceased or not. 8. To prove the guilt of the accused, prosecution examined as many as 8 witnesses and out of them, P.Ws.2,3, and 5 have not supported the case of the prosecution and they were declared hostile by the prosecution. There remains the evidence of P.Ws.1- complainant, P.W.6 to P.W.8. P.W.4 is the photographer who took the photographs of the scene of offence. P.W.7 is the doctor, who conducted post-mortem examination over the dead body of the deceased and P.W.8 is the investigating officer. P.W.1 deposed that while he was at Sreenadhapuram village on 4.5.2006, he received telephonic message from Circle Inspector of Police, Halia about the murder of the deceased in Kupashpally village. Immediately, he rushed to the said village and found the dead body of the deceased in front of the main entrance door of the deceased. On his enquiry, P.W.2, who gathered there informed that the deceased was killed by accused. Immediately, he lodged Ex.P.1 report with the police. He overheard the conversation of the public gathered at the house of the deceased that the cause of the murder of the deceased was due to illicit contact between A.1 and A.2. In the cross-examination, he deposed that he lodged Ex.P.1-report in the police station at about 9.00 a.m. and that he reached Kupashpally village at about 7.10 a.m. on receipt of telephonic message from the Circle Inspector. But he admitted that when he reached the scene of offence, the Circle Inspector and Sub-Inspector were very much present at the scene of offence. Both the accused were also present at the scene of offence when he reached there. The Circle Inspector and Sub-Inspector have taken both the accused in their jeep to Halia. 9. P.W.2 deposed that at 6.30 a.m. while he was at his home, he overheard through the public conversation about the death of the deceased, then immediately he went to the house of the deceased and saw his dead body in front of his house. P.W.1 also came there. He overheard the conversation among the villagers who gathered there that A.1 and A.2 used to maintain illicit contacts and in that connection only the deceased was murdered. Both the accused were present at the house of the deceased when he went there. He was declared hostile at that stage. He denied the suggestion made by Public Prosecutor that when the police examined him, he stated to them that both the accused have knocked his door in the morning at about 5.00 a.m. on 4.5.2006 and when he got up, A.2 reported to him that when her husband was sleeping on the verandah of their house in the night at about 10.00 p.m., she caught hold of the deceased and A.1 axed the deceased and killed him and out of the scare they approached him. P.W.3 was also declared hostile. He denied the suggestion made by Public Prosecutor that A.2 went to his house in the morning at about 5.30 a.m., knocked his door and reported to him that they killed the deceased. P.W.5 is another witness who was also declared hostile. In the cross-examination by Public Prosecutor, he denied the suggestion that his enquiries with the public revealed that both the accused led illicit contacts for the past one year prior to the death of deceased in spite of warning from the deceased and that in order to continue the illicit contacts peacefully, they eliminated the deceased as in Ex.P.5. P.W.6 is the panch witness to the scene of offence panchanama, inquest report etc. The doctor-P.W.7 who conducted the post-mortem examination over the dead body of the deceased found7 incised wounds on the dead body of the deceased as mentioned in Ex.P.9-post-mortem certificate and opined that the cause of death of the deceased was due to heamorrhage and shock due to multiple injuries. P.W.8-the investigating officer stated that L.W.12 issued the F.I.R., P.W.8 recorded the statement of P.W.1 in the police station, visited the scene of offence, examined and recorded the statements of P.Ws.2 and 3 at the scene of offence, secured the presence of P.W.6 and others and in their presence, he conducted the panchanama of scene of offence, inquest and got the dead body of the deceased photographed, seized the material objects, prepared the rough sketch and sent the dead body for post-mortem examination. He apprehended the accused on 6.5.2006, recorded their confessional statements in the presence of P.W.6 and others. 10. From the evidence as extracted above, the prosecution could only establish that the deceased met with homicidal death. But it failed to establish that it is none other than the accused, who caused the death of the deceased. It is well settled that however strong suspicion it may be, the same cannot substitute the legal proof. The evidence should be cogent and convincing to prove the guilt of the accused by the prosecution. The illicit intimacy, being the motive for the accused to kill the deceased as attributed by the prosecution, has not been established by any of the witnesses. The prosecution miserably failed to establish that A.1 was present on the previous night in the house of the deceased. Further the offence as alleged by the prosecution, took place at 10.00 p.m. on the previous night, but the dead body of the deceased was found on the next day morning infront of the house of the deceased. In the absence of any cogent and convincing evidence adduced by the prosecution, it is unsafe to convict the accused on the above scanty evidence that too for the capital punishment under Section 302 IPC. It is well settled that the accused cannot be convicted by drawing inferences without there being any legal proof. The learned Sessions Judge fell in error in convicting the accused by drawing inferences, as stated above. Hence this Court is of the view that the prosecution miserably failed in its attempt to connect the accused with the commission of the offence. The accused are entitled for acquittal by extending benefit of doubt. 11. In the result, the Criminal Appeal is allowed and the convictions and sentences imposed on the appellants by V Additional District & Sessions Judge, (III Fast Track Court), Nalgonda at Miryalguda in S.C.No.8 of 2007, dated 10.5.2007 are hereby set aside. The appellants are found not guilty of the charges with which they stood charged and they are acquitted of the same. They shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellants, shall be refunded. _______________ A. GOPAL REDDY. J _________________ R.KANTHA RAO, J NOVEMBER 14, 2011 Tsr.