HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.591 OF 2007 Dated:20-10-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Jayanthi Balaram & Another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.591 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) State, represented by Public Prosecutor, preferred this appeal questioning the acquittal order, dated 13.04.2006 passed in S.C.No.641 of 2004 on the file of VII Additional Sessions Judge (Fast Track Court), Guntur acquitting the respondents- accused 1 and 2 of the charges punishable under Sections 302 r/w 34 and 380 r/w 34 I.P.C. 2. The story of the prosecution as narrated during the course of trial is as under: A.2 is close friend of A.1. P.W.2 is the father and L.W.3 is the mother of Ravi Datta (hereinafter referred to as ‘deceased’) and L.W.1 is the paternal grandmother of the deceased and they are all residents of Brodipet, Guntur. P.W.2 along with his wife and the deceased son was residing in the ground floor portion, whereas P.W.1 was residing in the upper portion of the residential house called as “Datta Nilayam”, situated at Brodipet, Guntur. A.1 is the nephew of P.W.1. P.W.2 is working as driver in ‘Women and Child Welfare Department, Guntur, whereas his wife L.W.3 is working as clerk in Jana Chaitanya Housing Corporation Limited. P.W.3 is the brother of P.W.2 and he is the devotee of Sri Ganapathi Satchidananda Swamy and he has been staying at Swamyji’s Ashram in Mysore. Gita Bhargavi, the sister of A.1 was admitted in a college at Bangalore by paying donation of Rs.1,50,000/- and later she left the said institution and joined at Hyderabad. The parents of A.1 requested P.W.3 to get that donation amount returned as he was staying in Mysore in the Ashram of Sri Ganapati Satchidananda Swamiji. But he did not show any interest to get that donation amount to the parents of A.1. While so, P.Ws.1,2,4 an L.W.3 started constructing their own building by investing huge amounts at Guntur and the family members of A.1 thought that P.W.3 had taken back the donation amount of Rs.1,50,000/- from the Bangalore college and invested the said amount in constructing their building at Guntur without giving that amount to the parents of A.1. Hence, A.1 with the assistance of A.2 decided to do away with the life of P.W.1. While so, on 6.5.2004 both the accused came to the house of P.W.1 at about 11.00 a.m. and at that time, P.W.7, servant of P.W.1 was washing clothes in the ground floor portion and that both the accused had gone to the upper portion, which was noticed by P.W.6, a neighbour. The deceased was inside the upper portion of P.W.1 alone and his parents and P.W.1 were not in their house and the grill doors of upper portion of P.W.1 were locked inside and on the request of A.1, the deceased opened the grill gates and both the accused entered inside the upper portion of the scene of offence and that A.1 was searching the almirahs in the bed room of that house and that the deceased warned A.1 that he would report the matter to P.W.1. Then both the accused though that the deceased would be eyewitness to the incident if they commit the murder of P.W.1, and hence both of them decided to put an end to the life of the deceased and then A.1 laid the deceased on divan and placed a pillow on his face and pressed the same till the deceased lost his conscious and then A.2 took the deceased to the bath room, cut his throat with knife, thrown away the body of the deceased there itself and washed the bloodstains on the knife with a telephone laced cover and threw away that telephone lace cover there only and then A.1 had taken away Rs.600/- from a steel box kept in the bed room of that house and then both of them went away. Sometime thereafter, P.W.1 returned to the house and found the steel box opened. On hearing the cries of P.W.1, P.Ws.5,6 and others gathered there and on noticing the bloodstains, they opened the bath room and found the dead body of the deceased. Later, P.W.1 gave a written report to L.W.17-Assistant Sub Inspector of Police at Nagarampalem Police Station, who registered the same as a case in Crime No.116 of 2004 under Section 302 IPC and issued FIR. P.W.15 –Inspector of Police took up investigation, rushed to the scene of offence, observed the scene of offence in the presence of mediators-L.Ws.13 and 14, seized the bloodstained swabs and controlled swabs and the finger prints on the steel glass and the steel box. He seized the said articles under the cover of panchanama and drafted the scene of offence observation report. P.W.15 held the inquest over the dead body of the deceased in the presence of inquest panchayatdars-P.W.11 and others and prepared the inquest report and sent the dead body for post-mortem examination. P.W.13-Dr.Lakshmana Rao conducted post-mortem over the dead body of the deceased and issued Ex.P.13-post-mortem report opining that the cause of death of the deceased was due to hammaeragic shock, as a result of throat cut injury. During the course of investigation, P.W.15 arrested both the accused on 8.5.2004 and they confessed to have committed the murder of the deceased and that they lead the police party to Navabharat Colony and A.2 picked up a knife from the thorny bushes and produced the same before P.W.15, who seized the same in the presence of the mediators. After completion of investigation, P.W.15 laid the charge sheet against the accused. 3. To substantiate the case of the prosecution, P.Ws.1 to 15 were examined and Exs.P.1 to P.26 were marked besides material objects 1 to 11. On behalf of defence, no evidence was adduced. 4. We have heard the learned Public Prosecutor and Sri C.Padmanabha Reddy, learned senior counsel for the respondents, who have taken us through the entire evidence on record and also the findings recorded by the lower Court. 5. The prosecution, in support of its case, relied on the following circumstances: (1) Just prior to the occurrence, P.Ws.6 and 7 saw the respondents- accused entering into the premises of the deceased; (2) The recovery of knife used for the commission of offence; and (3) The availability of fingerprints on the knife which were tallied with the fingerprints of the accused. 6. The learned Sessions Judge after perusal of the entire evidence adduced, disbelieved the case of the prosecution on the ground that though the P.Ws.6 and 7 are supposed to be the eyewitnesses to the effect that the respondents-accused entered into the premises of the deceased at the time of occurrence, P.W.6 deposed before the Court that he has not stated before the police that he can identify the accused persons and he further stated that he is identifying the accused for the first time in the Court. It is well settled that even an unknown person can be identified by a witness in the Court. There should be an identification parade to identify the accused persons. Mere identifying the persons in the Court for the first time more particularly when they are unknown to the witness, the evidence cannot be considered to be useful to the case of the prosecution. P.W.7 also turned hostile. Hence, the learned Sessions Judge rightly rejected the evidence of P.W.6. 7. As far as the availability of the fingerprints on the knife which tallied with the fingerprints of the accused is concerned, as rightly pointed out by the learned senior counsel appearing for the respondents-accused, it is well settled law that the fingerprints should be taken in accordance with the provisions of the Identification of Prisoners Act and it should be taken in the presence of the Magistrate. Mere availability of fingerprints on the knife which tallied with the fingerprints of the accused cannot be a ground to convict the accused. The learned Sessions Judge has taken into consideration of the same and decided the issue in favour of the accused. With regard to the recovery of the knife, it is seen that even after recovery, the knife was not sent to the Forensic Science Laboratory to establish whether it contains the blood of human origin and the same is of the group of the deceased. In the absence of the same, mere recovery of knife, which is available all over in the market, cannot be ground to convict the accused. So the learned Sessions Judge rightly rejected the said evidence. It is fairly well settled that on the evidence adduced by the prosecution, if two views are possible, the view which benefits the accused should be preferred to the rest. It is also well settled proposition of law that in a case of appeal against acquittal, there is no necessity to interfere with the order of acquittal until and unless it suffers with infirmity and perversity. Under the circumstances referred to above, the order of acquittal passed by the learned Sessions Judge cannot be interfered with. 8. The appeal fails and the same is accordingly dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 20, 2010 Tsr.