THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1587 of 2007 Dated : 11.07.2011 Between : The State of A.P. …. Appellant-State a n d V.Anil Kumar & others … Accused THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1587 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) State preferred the present Criminal Appeal under Section 378 (3) & (1) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) challenging the judgment dated 16.01.2005 rendered in Sessions Case No.621 of 2004 by the XI Additional District & Sessions Judge (F.T.C.) Guntur at Tenali whereby and whereunder the learned trial Judge acquitted the accused under Section 235 (1) Cr.P.C. for the offence punishable under Sections 365, 342, 302, 201 and 435 of Indian Penal Code (for short ‘IPC’) against A.1 and A.2 and under Section 302 IPC against A.3. 2) The case of the Prosecution, in brief, is that the deceased borrowed Rs.7,000/- from A.1 on 18.11.2003 and executed a promissory note for Rs.10,000/- agreeing to repay the same @ Rs.2,000/- per month. But, the deceased failed to pay the amount to A.1. Deceased used to eke out his livelihood by giving performance of Burrakatha in villages. After the death of his 1st wife, the deceased married P.W.13 and started living elsewhere. A.1 searched for the deceased to collect the due amount. While so, on 05.04.2001 the deceased and his troop performed Burrakatha programme in Minevaripalem. A.1 having noticed the deceased caught him at Repalle on 06.04.2004 and took him to his house in an auto and at about 7.30 A.1 and A.2 with a view to pressurize the deceased for repayment of loan chastised the deceased and dealt with blows on his vital parts as a result of which the deceased collapsed suddenly. Due to unexpected situation, A.1 to A.3 hatched a plan to cause disappearance of the dead body of the deceased and thereby to cover up the murder. On the abatement of A.3, A.1 and A.2 took the dead body of the deceased on a motor cycle to the outskirts of Thurumella village where they kept the deceased body in a hayrick and set fire to it, due to which the dead body of the deceased burnt to ashes along with hayrick. 3) On 16.04.2004 the wife of the deceased lodged a report before Police, basing on which, Police registered a case in crime No.41/2004 for the offence punishable under Section 365 IPC, issued FIR. After completion of entire investigation, Police filed charge sheet against A.1 to A.3 for the offence punishable under Sections 364, 365, 302, 201, 435 read with 34 IPC against A.1 and A.2 and sections 365 and 201 and 109 IPC against A.3, which was numbered as P.R.C. No.32 of 2004 by the II Additional Munsif Magistrate, Repalle. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charges under Sections 365, 342, 302, 201 and 435 of IPC against A.1 and A.2 and under Section 302 IPC against A.3, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 15 and marked Exs.P.1 to P.21 apart from marking MO.1. 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 oral evidence on their behalf, but marked Ex.D.1 in their defence. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Sessions 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) PWs 1 to 3 are the troop members of the deceased, who used to give Burrakatha performances along with the deceased. PWs 4 and 5 are the daughters of the deceased. P.W.6 is the cousin of the deceased. P.W.7 is the landowner wherein the hayrick was burnt along with the dead body of the deceased. PWs 8 and 9 are the relatives of the deceased. P.W.10 is the owner of the auto and P.W.11 is the driver of the auto in which the deceased was taken by A.1 to his house. P.W.12 is the witness for confession of A.1 and A.2. P.W.13 is the wife of the deceased. PWs 14 and 15 are the investigation officers. 8) In the instant case, except PWs 4 to 6, none others supported the case of the Prosecution. Prosecution cited two persons as witnesses to the doctrine of ‘last seen theory’. The said two witnesses also turned hostile and not supported the version of the Prosecution. Further, the investigation agency collected some pieces of bones to prove that the dead body of the deceased was burnt in hayrick. But, the FSL report under Ex.P.21 reveals that on examination of M.O.1- burnt bones, human origin could not be determined. Further, the entire case is based on mere suspicion since because there is motive between the deceased and A.1. 9) The said motive is also based on the ground that the deceased borrowed a sum of Rs.7,000/- from A.1 and as the deceased failed to repay the same, A.1 was in search of the deceased and on the fateful day the deceased was taken by A.1 to his house and subsequently he was assaulted and beat by the accused resulting into his death. Thereafter, in order to screen the offence, accused burnt the dead body in a hayrick. But either to prove the occurrence or the said motive no witnesses were examined by the Prosecution and witnesses those who were examined also not supported the said version and motive of the prosecution. In the absence of any admissible legal evidence, merely basing on suspicion a conviction cannot be imposed on any person. Hence, this Court is of the view that the learned trial Judge has rightly acquitted the accused and there is no need to interfere with the present judgment of acquittal passed by the learned Sessions Judge. Therefore, the present appeal has to fail. 10) Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 16.01.2005 passed in Sessions Case No.621 of 2004 by the XI Additional District & Sessions Judge (F.T.C.) Guntur at Tenali. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 11th July, 2011 sur