THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELGANGO Crl.A.No.1626/2007 Dt.14-7-2011 . The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Appellant/complainant V. Muppidi Suribabu ..Respondent/accused The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 1626/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) State of Andhra Pradesh represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad filed this appeal under Sec. 378(3) & (1) of the Code of Criminal Procedure against the order of acquittal recorded by the III Additional District & Sessions Judge, Kakinada dt. 14-2-2006 in SC No.316/2004. The respondent herein who is sole accused in the above sessions case, will hereinafter referred as “the accused”. The accused was tried for the alleged commission of offences punishable under Section 302, 404 or alternative 411 IPC. The prosecution story, as unfolded during the trial, which led to the acquittal of the accused, is as follows: The accused and Mortha Satyavathi (hereinafter referred to as “the deceased”) are the residents of Jagannadhapuram village. Three years prior to the date of the incident, the husband of the deceased deserted her. The accused developed illicit intimacy with the deceased and living as husband and wife. As the deceased was affected with TB, she stopped illicit intimacy with the accused. The accused suspected that the deceased might have developed intimacy with some other. Due to suspicion, he bore grudge against her and decided to do away the life of the deceased. On 28-4-2004 in the morning the deceased went to Mallu Bhupalapatnam to attend the death ceremony of her maternal uncle. The accused dropped the deceased on his cycle at Kotanandur center. P.W.2 met the deceased there. Both the deceased and P.W.2 went to ceremony and returned to Kotananduru center by 4 PM. The accused who made up his mind to implement his plan, met the deceased at the center and asked P.W.2 to leave the deceased with him saying that he would drop her at her house. On that, P.W.2 left the deceased with the accused at the center and went to her house. Later the accused took the deceased towards Jammi bushes, Brahmana Cheruvu and intentionally picked up a quarrel with the deceased and put the towel around her neck and dragged into the thick bushes. When the deceased raised cries the accused picked up a curved knife and cut her throat on the right side and murdered her and committed theft of her silver stripes. While taking out the same, the screw of one strips fell at the scene and threw the knife there. Later the accused went to the house of the deceased alone. P.W.2 questioned the accused about the deceased. The accused told P.W.2 that the deceased went to her relatives’ house at Chotagopalam village and will return the next day. On 30-4-2004 at 6 AM Gorla Chinababulu while searching his she-buffalo found the dead body of the deceased in the bushes of Brahmana Cheruvu and found the injuries on the body of the deceased. Knife, steel can and a pair of chappals were found near the dead body of the deceased. Chinababulu informed the same to P.W.3. P.W.3 in turn informed the same to P.W.1-Village Servant. P.W.1 rushed to the scene along with P.W.5. P.W.1 lodged a complaint covered under Ex.P-1 with Sub-Inspector of Police, Kotanandur Police Station, (P.W.13) who registered the same as a case in Cr.No. 18/2004 under Sec. 302 IPC and issued First Information Report covered under Ex.P-13 to all concerned. P.W.14, the Circle Inspector of Police, after receiving Ex.P-13 rushed to the spot, conducted scene of observation, seized the material objects, held inquest over the dead body of the deceased and sent an information to the superior officer to send the dog squad to the place of occurrence. After conduct of inquest, P.W.14 sent the dead body for postmortem examination. PW.12-Doctor conducted autopsy over the dead body of the deceased and issued postmortem certificate covered under Ex.P-11 opining that the cause of death was due to shock and hemorrhage as a result of injury to the blood vessels. The accused was arrested on 3-5-2004. After completion of investigation and after receiving relevant documents, P.W.15 filed the charge sheet before the Judicial First Class Magistrate, Tuni. Learned Magistrate took the charge-sheet on file as PRC No.12/2004 and committed the case to the Sessions Division of East Godavari District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.316/2004 and made over to the III Additional District & Sessions Judge, Kakinada for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused, framed charges for the offence punishable under Section 302 and 404 or alternatively Sec. 411 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offence for which he stood charged, the prosecution examined 15 witnesses and proved 15 documents and exhibited 19 material objects. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and he denied the incriminating material appearing against him in the evidence of prosecution witnesses. On behalf of the defence, no evidence, either oral or documentary, was adduced. The trial court accepting the evidence adduced by the prosecution found the accused not guilty of the offences, with which he stood charged and accordingly acquitted him. Challenging the order of acquittal recorded against the accused, the State preferred the present appeal. Learned Public Prosecutor appearing for the appellant/State contends that the evidence of P.Ws.2,5 and 8 who last seen the deceased in the company of the accused categorically stated that the accused had illicit intimacy with the deceased and since the accused suspected that the deceased developed illicit intimacy with others, he bore grudge against the deceased and killed him. He further contends that the blood group of blood on the towel-M.O.11 which was recovered, pursuant to the confession made by the accused, and blood group of the blood on the knife which was recorded at the scene of offence is one and the same group ie., AB group as per the Serologist’s report-Ex.P-10, which shows the complicity of the accused in the commission of the offence. He further contends that since the death of the deceased is homicidal and the accused took the deceased to Jagannadhapuram as stated by P.W.2, it is for the accused to explain the cause of death of the deceased and the said fact has not been taken into consideration by the trial court. He further contends that the prosecution is able to establish complete chain of circumstances leading to definite conclusion pointing towards the guilt of the accused and therefore the accused is liable to be convicted for the offence punishable under Sec. 302 IPC. Sri B. Bhaskara Rao, learned counsel for the respondent/accused while supporting the judgment under appeal contended that there are no compelling circumstances to take a different view than the one taken by the trial court, basing on the evidence available on record, and there were no grounds to interfere with the judgment under appeal. In view of the above rival submissions, the point that arises for consideration is “Whether the order of acquittal passed against the respondent/accused is sustainable or not? It is not in dispute, the entire case of the prosecutions rests upon the circumstantial evidence, as there are no direct eye witnesses to the occurrence. Therefore, it is incumbent upon the court to scrutinize the evidence keeping in view the four tests laid down by the Supreme Court in Padala Veera Reddy v. State of A.P[1], wherein it was observed that when a case rests on circumstantial evidence, the following tests must be satisfied: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In C. Chenga Reddy v. State of A.P[2] the Supreme Court has held that: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.” If the case is based on circumstantial evidence, the motive plays a vital role and the prosecution under obligation to establish the motive for the offence alleged. P.W.1-Pilla Naga Satyanarayana is not an eye witness to the occurence. He is working as Village Servant of Jagannadhapuram. He lodged Ex.P-1 with the police, wherein he stated that on the information received from Vasireddy Rambabu-P.W.3 at about 10 0’ clock that an unknown woman dead body was found in the bushes of Jammuigaddi (bushes of grass) near Jagannadhapuram Brahmana Cheruvu (tank). Immediately, himself and P.W.5 went to the scene of offence and found that a female body is lying there, and found injury on the neck. They also found a knife without handle by the side of the dead body and nearby the dead body they also found a steel can and a pair of chappals. P.W.1 while reiterating the contents made in Ex.P- 1 before the court stated that he acted as panch witness to the observation of scene of offence and also to the seizure of M.Os.1 to 3. P.W.2-Chevati Booshanam, who is the sister of the deceased, deposed that herself and the deceased reside in the same house. The husband of the deceased deserted the deceased after she gave birth to a female child. The accused developed illicit intimacy with the deceased. The family members of the accused insisted him not to visit the house of the deceased. The deceased also directed the accused not to visit her house. One and half years prior to the incident, herself and the deceased went to Mallu Bhoopalapatnam to visit the house of their relatives on the eve of the death of one Tataji. On the same day at about 5 PM herself and the deceased came to Kotananduru by bus. The accused requested the deceased to come along with him to Jagannadhapuram. At the request of the accused, the deceased accompanied him to Jagannadhapuram, and she (P.W.2) alone went to Jagannadhapuram. On the same day at about 8 PM the accused alone came to her house and searched the clothes of the deceased. When she asked the accused about the deceased, he told her that she went to Chatagopalam village. On Friday, at about 12 noon she came to know that one female dead body was lying in Brahmana Cheruvu. Then herself, her father and her relatives went to Brahmana Cheruvu and found the dead body of the deceased. She found cut injury on the right neck of the deceased. In the cross- examination, P.W.2 stated that by the time they reached Brahmin Cheruvu, police and other villagers were there. She further stated that on Wednesday she informed to her father that the accused joined with the deceased at Kotananduru. P.W.5-Thelagala Veeranna deposed that the deceased had developed illicit intimacy with the accused and they lived together for sometime. The family members of the accused picked up a quarrel with the deceased. Thereafter, the deceased directed the accused not to visit her house. He further deposed that one and half years back at about 5-30 PM he has seen the accused and the deceased at Brahmin Cheruvu while proceeding to his house and he came to know through P.W.1 on Friday at about 9 AM that one female dead body was lying in Brahmin Cheruvu, and he alone went to Brahmin Cheruvu and directed P.W.1 to report the mater to the police. In the cross- examination, P.W.5 categorically stated that he did not admonish the deceased for having illicit intimacy with the accused, and he volunteered that it is the duty of the parents of the deceased to control her. P.W.8 who is a resident of Jagannadhapuram deposed that the husband of the deceased deserted her five years back and the deceased was the kept mistress of the accused. The family members of the deceased picked up a quarrel with the deceased and after quarrel the deceased did not allow the accused to visit her house. In spite of protest made by the deceased, the accused used to visit the house of the deceased. The evidence of P.W.1 and P.W.5 is contradictory with each other. P.W.1 in his statement deposed that himself and P.W.5 went to Brahmin Cheruvu bushes and found a female dead body. Whereas P.W.5 stated that on coming to know through P.W.1 that one female dead body was lying in Brahmin Cheruvu, he alone went there and directed P.W.1 to report the matter to the police. Further, the evidence of P.Ws.2, 5 and 8 discloses that the deceased did not allow the accused to visit her house. P.W.2 and 5 denied the suggestion that the deceased developed illicit intimacy with one Pyla Chinababu. A careful scrutiny of P.Ws.2, 5, 8 and 14 reveals that there were no disputes between the deceased and the accused. In the cross- examination, P.W.8 stated that he does not know whether the deceased had illicit intimacy with the Pyla Chinababu. P.W.12-Doctor in his evidence stated that at the time of postmortem lungs of the deceased were in normal condition. He further stated that there is no evidence of sexual intercourse. Whereas the version of the prosecution witnesses and the family members of the deceased is that the family members of accused picked up a quarrel with the deceased not to continue the illicit intimacy with the accused as she was suffering with TB. Thus, the evidence of P.W.12 negatives the version of the prosecution that the deceased was suffering from TB. The prosecution miserably failed to prove the motive for causing the death of the deceased nor any sexual intercourse prior to committing the crime. As per the testimony of P.W.2, one and half years back, on Wednesday, herself and the deceased went to Mallubhoopalapatnam in connection with the final obsequies of one Tataji and the evidence of P.W.4 reveals that the deceased and P.W.2 came to his house in connection with the last rites of his son and he distributed steel tumblers in memory of his late son and M.O.5 is the steel tumbler. On the same day, P.W.2 and the deceased came to Kotananduru at about 5 PM and the accused requested the deceased to come along with him to Jagannadhapuram from Kotananduru. Then she alone went to Jagannadhapuram by walk. Whereas P.W.5 stated that at about 5-30 PM he saw the accused and the deceased at the Brahmana Cheruvu while proceedings towards his house. P.W.7 in his evidence stated that while he was taking toddy from the tree near Pantulugari Cheruvu, he heard the cries of a lady uttering “Mamayya Champaku”, but due to darkness he could not identify the said persons. These are the witnesses who had last seen the deceased in the company of the accused. But P.W.2 came to know about the dead body of the deceased on Friday at about 12 noon. The time gap between the last seen and the dead body found is nearly more than 36 hours. P.W.5 in his cross- examination stated that on the date of the incident, he has seen the accused and the deceased through bushes from a distance of 100 meters and he could not identify the dress wore by them. There is no whisper in the testimony of P.W.7 that he has seen the dead body of female either on 29th or 30th April, 2004 while taking toddy from the tree. P.W.2 first time in his cross- examination stated that the accused informed to Gorinta Chellayyamma that the deceased went to Chatagopalam village, but she was not examined in the court. T.K.Ramachandra Rao, Dog Handler (P.W.10) was examined to establish that his services were pressed into service in the murder of the deceased. It is the evidence of P.W.10 that he along with Rambo dog came to the scene of offence at about 3 PM from Visakhapatnam on 30-4-2004 on a phone call received from the Kotananduru Police Station. As per the evidence of P.Ws.6 and 14 the scene of offence was observed on 30-4-2004 at about 1 PM and M.O.1-knife laws seized at the time of observation of the scene of offence. Before arrival of Rambo, the knife was being touched by the mediators as well as the investigating officer. P.W.5 has seen the dead body at about 10 AM on 30-4- 2004. In his evidence, P.W.5 stated that at the request of the police, he shifted the dead body from dorsum position to supine position. From the above evidence, it is clear that before arrival of Rambo dog, the dead body was touched by P.W.5. As per the testimony of P.W.6, he visited the scene of offence at about 1 PM and by the time he reached the scene of offence police and villagers were there. In view of the levidence of P.W.5 and 6, the possibility of smelling the scene of offence and M.O.1-knife by the Rambo dog is improbable and the evidence of P.W.10 is no way helpful to the prosecution case. M.O.10- Safari shirt of the accused, M.O.11-cotton towel of the accused and M.O.12 is the lungi of the accused. They were sent to the RFSL for examination. The Serologist opined that the blood group of the blood on the towel and the blood group of the blood on curved knife-M.O.1 is one and the same and is “AB” group. If the accused wore M.Os.10 to 12, there is every possibility for blood stains on these three items. Though the Serologist opined that the blood group of the blood on towel and knife is one the same, the same alone is not sufficient to connect the accused with the commission of offence. But the possibility of detecting blood on towel. Therefore, we are of the view that the prosecution has not established complete chain of events and circumstances leading to the commission of the crime and involvement of the appellant. It well settled principle that while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate court should not interfere with the finding of acquittal recorded by the court below. In view of the same, we find no compelling reasons and ground to take a different view that what is taken by the trial court. The Criminal Appeal fails and is accordingly dismissed. --------------------- A.GOPAL REDDY,J ----------------- RAJA ELANGO,J DT. 14-7-2011 Kmr [1] 1989 Supp.(2) SCC 706= AIR 1990 SC 79 [2] (1996) 10 SCC 193