THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.616 of 2007 Dated : 25.10.2010 Between : The State of A.P. …. Appellant-Prosecution a n d R.Krishna Rao & another … Respondents-Accused THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.616 of 2007 JUDGMENT: (per The Hon’ble Sri Justice A.Gopal Reddy) State preferred the present Criminal Appeal under Section 378 (3) & (1) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) against acquittal of the respondents-accused in Sessions Case No.119 of 2003 by the IV Additional District & Sessions Judge, Visakhapatnam, for the offence punishable under Section 302 read with 34 of Indian Penal Code (for short ‘IPC’) by judgment dated 12.08.2005. 2) The case of the Prosecution, in brief, is as follows: The land of the deceased Rajana Krishna and accused are situated side by side. On 26.04.2003, both the accused cut the palmyra fruits from the tree situated in the land of the deceased. In that regard an altercation took place between the deceased and accused. On that, the deceased reported the matter to P.W.1, the Sarpanch of the village, who informed the deceased that he would send for the accused on the next day morning. The deceased after having his dinner went to the field and slept. At about 1 O’ clock in the mid night, PW.2, the adjacent landholder of the deceased, woke up to answer calls of nature and saw A.1 and A.2 carrying the dead body of the deceased and hanging the same to the branch of mango tree in the field of the deceased. But due to fear he did not inform the incident to anyone. On the next day morning, PW.3, who went near the scene of offence for collecting milk, saw the dead body of the deceased, went to the village and informed the incident to P.W.1, PW.4-son of the deceased, and other villagers. 3) On 27.04.2003 P.W.1 lodged a report before Police alleging that the deceased committed suicide by hanging, basing on which, the Sub-Inspector of Police registered a case in crime No.39/2003 under Section 174 Cr.P.C., visited scene of offence, observed scene, prepared the scene of offence panchanama, prepared rough sketch, seized MO.1-thati thadapa, got photographed the scene, held inquest over the dead body, sent the dead body for post-mortem examination. After receiving post mortem report, the section of law was altered to Section 302 IPC. Subsequently, the Inspector of Police took up further examination, examined and recorded the statements of witnesses, found A.1 and A.2 absconding from village. On 03.05.2003 A.1 and A.2 were brought to Police Station by PWs 7 and 8 stating that A.1 and A.2 confessed before them to have committed the offence and handed over A.1 and A.2 to Police. A.1 and A.2 also led the Police and PWs 7 and 8 to their house where MO.2 was seized. Thereafter, A.1 and A.2 were remanded to judicial custody. After completion of investigation, Police filed charge sheet against the accused, which was numbered as P.R.C. No.18 of 2003 by the Additional Judicial Magistrate of First Class, Yellamanchili. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Section 302 read with 34 IPC, in which, the accused denied the charge and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 12 and marked Exs.P.1 to P.25 apart from marking MOs 1 and 2. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. The accused did not choose to adduce any evidence on their behalf. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge rendered the impugned judgment as stated above. 6) Heard the learned Public Prosecutor for the State and the learned counsel for the respondents. 7) The entire prosecution case rests upon the evidence of P.W.2, who stated that on the date of incident at about 10 O’ clock they went to fields to sleep. Further in the night at 1 O’ clock when he woke up to answer calls of nature, he saw two persons carrying the dead body of deceased and out of fear he did not go near to them and said two persons hanged the deceased to a branch of mango tree. A.1 and A.2 are the said persons who carried the deceased and hanged him to branch of mango tree. Out of fear, he slept in the night. On the next day morning villagers gathered at the mango tree and he was examined by the Police. PW.2 revealed the incident only when Police examined him. Even on the next day morning when villagers gathered near the mango tree also P.W.2 did not inform the incident to any person, which is against normal human conduct. Therefore, his witnessing the accused carrying the dead body of the deceased is doubtful. 8) PW.1, who lodged the report, stated that A.1 and A.2 also attended the inquest held over the dead body of the deceased and on the next day of his lodging complaint, police took away A.1 and A.2 from the village at about 3 p.m. But, according to the prosecution case, P.Ws 7 and 8 went to Police Station on 03.05.2003 along with A.1 and A.2 and presented a report to P.W.12 informing the confession made by A.1 and A.2. Ex.P.24 and P.25 are the confessional statements of A.1 and A.2. The evidence of PW.1 that the accused were arrested on the very next day of his lodging Ex.P.1 complaint is contradicting with the evidence of P.Ws.7 and 8, who claims to have handed over the accused to Police on 03.05.2003. 9) P.W.3 deposed that in the morning hours when he was going to collect milk, he saw the dead body of the deceased hanging to a branch of mango tree belonging to the deceased and then he went to the village and informed the same to the family members of the deceased, P.W.1 and other villagers. 10) The entire prosecution case rests upon the other circumstantial evidence, which cannot be taken into consideration to connect the accused with the commission of offence. When the Prosecution failed to connect the accused with the commission of offence, it is unsafe to convict the accused basing on the evidence adduced by the Prosecution. Hence, the learned Judge has rightly acquitted the accused and the impugned judgment does not call for any interference of this Court. 11) Therefore, the Criminal Appeal is dismissed. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J Dated : 25.10.2010. sur