THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1442 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment, dated 27.09.2007, passed by the X Additional District and Sessions Judge (FTC), Guntur at Narasaraopet, in S.C.No.616 of 2004, whereunder and whereby the appellant/accused was found guilty of the offence under Section 302 I.P.C., and was convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for the disposal of this case are as follows: About four years prior to the occurrence, there was a quarrel between the accused and Shaik Saidabi (hereinafter referred to as ‘the deceased’) regarding their children. But the elders intervened and pacified the issue. Subsequently, about 10 months prior to the occurrence, while the son of the accused and the son of the deceased were playing at a ground level well, which belongs to the Sarpanch of the Village, the son of the accused aged 6 years died due to accidental fall in the well. But the accused suspected that the deceased was responsible for the death of his son. Keeping it in mind, the accused was waiting for an opportunity to wreak vengeance against the deceased. While so, on 12.05.2004, at about 8 a.m., while P.W.3 and the deceased were grazing the goats at Narasimha Katta, after eating bread, as per the instruction of the deceased, P.W.3 went for drinking water. At the same time, the accused who was hiding there, rushed towards the deceased, axed her on the left side of fore head, left cheek, left side of the head, back side of the head, on the head, left shoulder and left hand and made cut injuries and also caused abrasions on the left knee and thigh and killed her. P.W.3 on hearing the cries of the victim rushed to the spot, saw the occurrence, being afraid ran to the village and informed the same to the villagers. P.Ws.4 and 5, who were also grazing goats, on hearing the cries of the victim, rushed to the spot and saw the accused running away armed with an axe and also saw the body of the deceased lying with several axe injuries all over her body. On information, P.Ws.1 and 2 rushed to the scene and saw the dead body lying with several axe injuries in a pool of blood. On the same day i.e., on 12.05.2004 at 1.30 p.m., P.W.1 went to the Police Station and presented a report under Ex.P.1 before P.W.9-Head Constable. Based on the said report, P.W.9 registered a case in Crime No.56 of 2004 under Section 302 I.P.C and issued express F.I.R. P.W.11, the C.I of Police, who took up investigation, visited the scene of offence in the presence of mediators i.e., P.W.8 and Shaik China Mabu, got drafted observation report, seized a blood stained stick, which is to a length of 5 feet, blood stained tiffin box, pair of rubber foot wear and also seized blood stained earth, controlled earth, held inquest over the dead body and obtained photographs of the deceased through P.W.7. Thereafter, he examined the witnesses and sent the dead body to Government Hospital, Gurazala for autopsy. P.W.10-the doctor conducted autopsy over the dead body of the deceased on 13.05.2004 and issued postmortem certificate opining that the deceased died due to multiple injuries. The accused surrendered before the Court on 18.05.2004. P.W.9 took the accused for police custody on 27.05.2004, recorded his confession and seized the blood stained axe used by the accused in killing the deceased, in the presence of P.W.8 and Shaik China Mabu on 28.05.2004 and sent the accused for judicial custody. The material objects were sent to the Assistant Director, Regional Forensic Science Laborary, Guntur. After completion of investigation and receipt of relevant reports, the police laid charge sheet. 3. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.17, besides case properties M.Os.1 to 10. 4. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 5 . On the basis of the evidence adduced by the prosecution witnesses, more particularly the evidence of P.Ws.3, 4 and 5, the learned Sessions Judge found the accused guilty of the offence under Section 302 I.P.C and accordingly convicted and sentenced him as stated supra. 6. Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor. 7. In the present case, this Court is of the view that there is no necessity to discuss the evidence adduced by all the witnesses since the entire case rests upon the evidence of P.Ws.3, 4 and 5. If the evidence of P.Ws.3, 4 and 5 is cogent in nature, convincing and inspires the confidence of the Court, then the other evidence adduced by the prosecution needs to be scrutinised. 8. Admittedly, P.W.3 is an eyewitness as projected by the prosecution, but the said witness turned hostile and not supported the case of the prosecution. He deposed before the Court that when the deceased asked him to fetch water, he went inside the ground level well and by the time he came out of the well, the deceased was lying on the ground in a pool of blood with bleeding injuries. Then he rushed to Jinkalapalem and informed about the same to the villagers. But unfortunately, this witness has not stated about the presence of P.Ws.4 and 5 at the place of occurrence. 9. P.W.4, who is a resident of Jinkalapalem, deposed before the Court that on hearing the cries of the deceased, himself and P.W.5 rushed to the place of occurrence and saw the deceased in a pool of blood and that the accused was running away from the scene of offence with an axe in his hand. He further deposed that at that time P.W.3 came to that place from the well, which clearly establish that even though P.W.3 was cited as an eyewitness, P.W.4 has not supported the case of the prosecution to that extent. 10. P.W.5, who is also eyewitness, deposed that on hearing the cries of the deceased, himself and P.W.4 rushed towards Mondikatta and saw the accused running away from the scene of occurrence with a blood stained axe in his hand and that the deceased was lying in a pool of blood. This witness also stated that when they reached the place of occurrence, P.W.3 came there from the well. 11. So by evaluating the evidence of P.Ws.3, 4 and 5, this Court is of the view that it is highly unsafe to rely on their evidence to convict the accused. Even assuming for a moment that the accused ran away from the scene of occurrence with an axe, it is the duty of the prosecution to establish that at the time of occurrence except the accused no other person was present at the place of occurrence. Further, it is contended by the learned Public Prosecutor that not only the evidence of P.Ws.4 and 5 that they witnessed the dead body of the deceased and the accused running away from the place of occurrence with axe, but Ex.P.17 the Forensic Science Laboratory Report relied upon by the prosecution would also establish the fact that the blood group on M.O.5 (saree of the deceased) and M.O.9 (axe) is one and the same. But, unfortunately P.W.8, who was examined by the prosecution to prove the recovery of the axe used in the commission of the offence, turned hostile and has not supported the case of the prosecution. It is the specific case of the said witness that he was not present at the time of arrest of the accused or recovery of the said weapon. In the absence of any clinching evidence for the recovery of the said axe, this Court is of the view that it is highly unsafe to convict the accused, based on the evidence of P.Ws.3, 4 and 5. Further, in order to convict an accused for the offence under Section 302 I.P.C, which is punishable with death or imprisonment for life, the prosecution must establish its case beyond all reasonable doubts. In the present case, the prosecution miserably failed to establish its case beyond all reasonable doubts. Hence, the conviction and sentence recorded against the appellant is liable to be set aside. 12. Accordingly, the conviction and sentence recorded by the X Additional District and Sessions Judge (FTC), Guntur at Narasaraopet, in S.C.No.616 of 2004 against the appellant/accused for the offence punishable under Section 302 I.P.C., are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant, shall be refunded. 13. In the result, the Criminal Appeal is allowed. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Dated 28.06.2011 va