HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE V.SURI APPA RAO CRIMINAL APPEAL No.1112 OF 2007 ORDER:(per Hon’ble Sri Justice V.Eswaraiah) The accused is the appellant. He was found guilty by the III Additional Sessions Judge (Fast Track Court-II), Khammam, by judgment dated 30.04.2007 in Sessions Case No.11 of 2006, of offence punishable under Section 302 IPC and was sentenced to undergo life imprisonment and pay a fine of Rs.200/-, in default to undergo simple imprisonment for two months. It is the case of the prosecution that PW.1, Sd. Ahamathulla, lodged a complaint on 08.06.2005 at about 6.00 A.M. alleging that on 07.06.2005 at about 10.30 P.M., the accused-Varala Ramu came to his house, took his brother Syed Rahmatulla (the deceased) and returned alone at about 12.30 mid-night to their house, that he asked PW.2, the wife of the deceased, to provide food, that after having food, when PW.2 asked the whereabouts of the deceased, the accused informed that he would return, that when PW.1 and his family members asked the whereabouts of the deceased again, the accused took his cousins viz., Varala Venu and Varala Krishna, PWs.4 and 5 to the gas godown, showed the dead body of the deceased and that he on being informed by the cousins of the accused, PWs.1 to 3 went to the gas godown and found the dead body of the deceased with an axe injury on his neck. PW.1 came to know through the cousins of the accused that the accused bore grudge on the deceased as he knew the thefts committed by the accused. Based on the complaint presented by PW.1, a case in Crime No.108 of 2005, for an offence punishable under Section 302 IPC, was registered and Ex.P.12, FIR, was issued. The prosecution examined PWs.1 to 13 and got marked Exs.P.1 to P.14 and M.Os.1 to 7. While none were examined, Ex.D.1 was marked on behalf of defence. The prosecution contended that, on the intervening night of 07/08.06.2005, the accused committed murder intentionally causing the death of the deceased. The prosecution did not cite anybody as direct witness. The entire case depends on the circumstantial evidence only. PW.1, the brother of the deceased, deposed that on the date of incident, while he was returning home after attending duty at B.P.L., the deceased came in the opposite direction, took his cycle, that the accused accompanied him, that while the deceased proceeded on the cycle, the accused sat on the carriage of the cycle, that the accused returned to their house at 12.30 mid-night and requested PW.2 to serve food and that while having food when PW.2 asked the whereabouts of the deceased, he gave evasive reply. He further deposed that as the accused was in intoxicated condition, he poured water on the face of the accused and, in the meanwhile, the cousin brothers of the accused also came there and poured water on the accused and, thereafter, the accused took them to the compound wall of the gas godown where the deceased was found in a pool of blood with injuries on his left chest and left cheek. He deposed that the accused used to attend masonry work and that he was addicted to liquor, other vices and used to commit petty thefts. He deposed that, on the deceased informing the cousin brothers of the accused of the petty thefts committed by the accused, they beat him and admonished him and, therefore, he bore grudge against the deceased. He deposed that the accused had also informed him and others about the illicit intimacy of the deceased with his mother. He deposed that he presented Ex.P.1, complaint, and handed over the axe found near the dead body of the deceased marked as M.O.1. In the cross-examination of PW.1, he stated that he along with others confined the accused in a room of the Masjid Complex from 12.30 A.M. to 4.30 A.M., and handed over him to the police, who took him into their custody at about 11.00 A.M. However, he did not mention the same in Ex.P.1. He further admitted, in his cross-examination, that he had handed over M.O.1, axe, on 08.06.2005 at the police station before presenting Ex.P.1 complaint to police. PW.2, the wife of the deceased, stated that the accused was the friend of her husband, that the accused and deceased were in her house till 10.00 P.M. consuming alcohol, that both the accused and deceased left the house together, that at about 11.00 P.M. the accused came to their house and returned the cycle, that when she enquired about the deceased, he stated that he would return, that at about 12.15 mid-night, the accused came to the house of his senior paternal uncle, situated beside her house and was talking with LW.6, that when she went there and asked about the deceased, he replied that he would return, that the accused later came to their house, requested to serve food and, after taking food, the accused left the house stating that he would bring the deceased, that on suspicion, she followed the accused along with her mother-in-law, PW.6, that as the accused was in a drunken state, he led to different places, that the cousins of the accused took him to the boring pump and poured water, that on coming to senses, he showed the dead body and stated that he killed the deceased because he informed his cousins about the petty thefts committed on account of which they admonished him and beat him and that he also suspected of the deceased having illicit intimacy with his mother. In her cross-examination, the suggestion that a false case was foisted as the accused was not vacating the room in the Masjid complex was denied. She stated that both the deceased and accused were friends. PW.3, the father of the deceased, while corroborating the evidence of PW.1 stated that they found axe near the dead body of the deceased. In his cross-examination, he stated that both the deceased and accused got the habit of drinking gudumba since 6 or 7 years prior to his death. PW.4, a resident of Sarapka Village, stated that as the deceased did not return home, PWs.1 to 3 and some others were searching till mid-night, that on hearing the cries of PWs.1 to 3 and others, he woke up and that as the accused was in a drunken condition, they took him to the boring pump, poured water and, later, he took them to the gas godown where the deceased could be traced with the help of a torch-light in a pool of blood. He stated that he did not know the cause for the incident. In his cross-examination, he admitted that the police came to the scene of offence at about 3.30 or 4.00 A.M. on 08.06.2005 and they took the accused into custody. PW.5, an independent witness, stated that he accompanied PWs.1 to 3 and others along with the accused to the gas godown where the deceased was found dead in a pool of blood with axe injuries on his right cheek and throat. He stated that the cousins of the accused had informed the police of the incident and that the police came to the scene of offence where the accused is stated to have killed the deceased on suspicion that he got illicit intimacy with his mother. In his cross-examination, he stated that he did not know as to what had happened at the gas godown but when he went to the gas godown along with others, the accused was also present. He stated that except seeing the dead body of the deceased at the gas godown building, he did not know anything. PW.6, the mother of the deceased, corroborated the evidence of PWs.1 and 2. PW.7 is the scribe of Ex.P.1-complaint. PW.8 is the photographer of the dead body of the deceased. PW.9 is the panch witness for seizure of M.O.1, the axe, M.Os.2 and 3, the clothes of the deceased, M.O.4, blood stained earth and M.O.5, the controlled earth. Ex.P.9 is the inquest report and Ex.P.10 is the rough sketch of the dead body of the deceased. However, Ex.P.9, inquest report, does not contain his signature. PW.10 is the mediator for seizure of M.Os.6 and 7, the blood stained clothes under Ex.P.11, disclosure-cum-seizure report. PW.11 is the Assistant Sub-Inspector of Police, who received Ex.P.1-complaint and registered a case in Crime No.108 of 2005 for the offence punishable under Section 302 IPC and issued Ex.P.12, FIR. PW.12 is the Civil Assistant Surgeon, who conducted autopsy over the dead body of the deceased and found the following external injuries: 1. Incised wound measuring about 3” X 1” bone deep (Upper and lower jaw) oblique situated on left side of face i.e, left malar prominence and left cheek of the face upper cut margin of incised wound bruised fracture of left half of mandible at angle of mandible second premolar (premolar) 6th first molar teeth of upper jaw on left half partially broken. Molar teeth in lower jaw on left half broken partially. Weapon sharp edged weapon. Ante mortem injury. 2. Incised wound about 9” x 2” cervical vertebra deep horizontal situated on neck anterially between chin (lower border of lower jaw, mandible) of hyoid bone. Upper margin of incised wound bruised injury extended from the skin to servical vertibra cutting structure in between them i.e., supra hyoid muscle sternomastoid muscle, internal jugular and vein and carotid artery on both sides. Posterior one third of tongue. Junction of pharynx with esophagus with broken survical vertibra. Sharp edged weapon. Ante mortem injuries. 3. Incised wound 2” x 1” x 1” situated on neck anteriorily on left side 2” below injury 2 and 2” behind middle of neck. Sternomastiod muscle on the left side cut partially. Sharp edged weapon. Ante mortem injury. 4. Bruise 2 in number about 3½ X ½ slightly raised reddish nearly horizontal situated on the chest anterially on the left side between left collar bone and nipple. Ante mortem injury, blunt weapon. Ex.P.13 is the Post-Mortem report issued by PW.12. In his report, PW.12 opined that the death of the deceased was due to hemorrhage and shock for the injuries on the vital structures of neck. He opined that he found 100 ml fluid and no alcoholic substance in the stomach of the deceased. PW.13 is the Inspector of Police, Paloncha, who visited the scene of offence, got the scene of offence photographed by PW.8, prepared rough sketch and held inquest over the dead body of the deceased. He also stated that, during the course of inquest, he seized M.Os.1 to 5 from the scene of offence and sent the dead body to the Government Hospital, Burugumpad for post-mortem examination. He stated that he arrested the accused on 10.06.2005 at his house. He also stated that he received information about the incident at about 6.00 A.M. on 08.06.2005 by phone from PW.11, the Assistant Sub-Inspector of Police, who registered the crime, and he did not enquire from the said PS at what time the information about the incident was received in the police station. The entire prosecution case depends upon the trustworthy and reliability of the circumstantial evidence only as there is no direct evidence. In the instant case, it is the consistent stand of the prosecution witnesses that both the accused and deceased consumed alcohol on the date of incident and left the house at 10.30 P.M. as specifically stated by PW.2, the wife of the deceased. Similar facts were stated by PWs.1, 3 and 6. PWs.1 , 2, 3 and 6 consistently stated that the axe was found by the side of the dead body and the said axe was handed over by PW.1 at the time of lodging the complaint. But, according to the police, the axe was recovered from the scene of offence in the presence of PW.9. Therefore, the seizure of weapon, by means of which the death was caused, itself is doubtful. While PWs.1 to 6 consistently stated that the accused was confined in a room and was handed over to the police in the early hours of 08.06.2005 at about 3.30 or 4.00 A.M., the police arrested the accused two days thereafter i.e. on 10.06.2005. It is evident from the evidence of PW.2 that both the accused and deceased consumed liquor but as per the post-mortem report, the liquid contained in the stomach of the deceased did not contain alcohol. Therefore, it cannot be said that the deceased consumed liquor. Even, the accused was not subjected to any alcoholic test. Therefore, we are of the opinion that the circumstantial evidence is not established to connect the accused with the death of the deceased. Even PW.1 did not state anything about illicit contact of the deceased with the mother of the accused. However, in order to prove the so called admonition by the cousin brothers of the accused, none of his cousin brothers were examined. Thus, the motive, as tried to put forth by the prosecution, is also doubtful for causing the murder of the deceased by the accused. Therefore, the learned Judge erroneously relied on the theory of last seen. Even it is not the case of the prosecution that both the accused and deceased were in the company through out the night. Thus, the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Therefore, we are unable to sustain the impugned judgment. In the result, the conviction and sentence recorded by the III Additional Sessions Judge, (Fast Track Court-II), Khammam, vide judgment dated 30.04.2007 in Sessions Case No.11 of 2006, against the appellant-accused of the offence punishable under Section 302 of I.P.C. are set aside. The appellant-accused shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid shall be refunded to him. Accordingly, the appeal is allowed. V.ESWARAIAH,J, V.SURI APPA RAO,J Date:22.03.2011 Usd