THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1357 of 2004 and CRIMINAL REVISION CASE NO.635 OF 2005 ORDER: The Criminal Appeal No.1357 of 2004 is filed by the accused, who are convicted for the offence under Section 404 IPC in S.C.No.209 of 2003 by the District and Sessions Judge, Anantapur on 07.07.2004. The Criminal Revision Case No.635 of 2005 is also filed against the same judgment by the Son-in-law of 1st deceased and husband of 2nd deceased questioning the acquittal of the accused for the offence under Sections 302 and 201 IPC. According to the prosecution, the deceased Sundaramma and her daughter Renuka Devi were residing in the house bearing No.6-2-959, Ram Nagar, Anantapur. M.Sreenivasa Charyulu was the husband of 1st deceased and he married her after the death of his 1st wife. P.W.16 M.S.Ramanujam is the son of Sreenivasa Charyulu through his 1st wife and he had two sisters, both of them were married even during the life time of their father and he is living at Delhi. 2nd deceased was affected with polio in her childhood and was physically handicapped. Her father got her married to P.W.15 and he is living with 2nd deceased as illotam son-in-law. During the lifetime of 1st deceased’s husband, P.W.15 used to help him in looking after the lands he owned at different places and most of the properties were sold and converted into cash and invested in Bank deposits etc., The husband of the 1st deceased gave the house 6-2-959 to 1st deceased and 2nd deceased, in equal shares without giving any share to P.W.16 or his sisters as they never aspired for it. After the death of her husband, the 1st deceased took over the management of the household without trusting P.W.15 even though he was living along with them. Accused Nos.2 and 3 are the sons of 1st deceased’s brother, who lived in Old Town, Anantapur. Accused No.2 was looking for employment and accused No.3 was studying Degree. 1st deceased had good affection towards her brother and his family. Accused Nos.2 and 3 used to visit deceased Nos.1 and 2 often and making enquires about their welfare and helping them to get things from the market, taking them to hospital, bank etc. Accused No.2 gained the confidence of 1st deceased. As a result of which, 1st deceased bequeathed her portion of the house in favour of accused No.2 by a registered Will dated 10.05.1996 attested by a close friend of accused No.2 and 2nd deceased also attested it. 1st deceased has also deposited Rs.25,000/- in fixed deposit in the name of accused No.2 on 20.04.1998 for a period of 39 months and retained the registered Will and F.D. receipt issued by the Andhra Bank, with her. Accused No.2 got employed as Diesel Assistant in S.C.Railway. He initially worked at Raichur and very soon got transferred to Guntakal. Even after joining employment accused No.2 frequently visiting deceased Nos.1 and 2 whenever he got an opportunity and helped them as usual and continued in the good looks of 1st deceased. Accused No.2 with his meager income felt it more and more difficult to meet the financial requirements of maintaining his family at Guntakal and support his parents and accused No.3 at Anantapur. His efforts to get substantial ready help from 1st deceased did not succeed, and accused No.2 tried to secure the F.D. receipt in his name from 1st deceased to raise a loan on it, but 1st deceased did not give the receipt on one pretext or other. Accused No.2 proposed to mortgage or sell half of the house bearing No.6-2-959, which 1st deceased had bequeathed in his favour by a registered Will, but he could not succeed in his attempt. The conduct of 1st deceased made accused No.2 to feel that she might even change the Will under which she had given him the house at the instance of 2nd deceased or other relatives and felt that he should act before 1st deceased changes the Will and discussed with his brother, accused No.3 and induced him to believe that if 1st deceased were to be killed they would gain a lot financially and they could both live comfortably. Accused Nos.2 and 3 decided to do away with 1st deceased, so that the Will in favour of accused No.2 could be pressed into service to gain financially. They also felt that with the conduct of 2nd deceased’s husband P.W.15, it would be easy for them to commit the offence and throw the entire blame on P.W.15 whom every body would suspect. Having decided, accused Nos.2 and 3 sought the help of accused No.1, who is working as maid servant in the house of 1st deceased. Accused Nos.2 and 3 contacted accused No.1 during early May, 2001 and lured her to fall in with their plan tempting her with substantial monetary benefit and also warned her with death to herself and her daughter if she fails to fall in line with them or spoke to any one about it. During 2nd half of May, 2001, accused No.2 learnt that P.Ws.9 and 10 got married their daughter to son of Rama Bai at Delhi and taking their girl to live with her husband at Delhi and P.W.15 also accompanying them as a close family friend. Accused No.2 fixed up with accused No.3 to carry out their plan while P.W.15 away from deceased Nos.1 and 2. Accused No.2 came to Anantapur by traveling in passenger train by 9.00 P.M. on 29.05.2001 and accused No.3 met him at the Railway Station as instructed earlier. From there accused Nos.2 and 3 proceeded to the house of deceased Nos.1 and 2 and had a causal talk them and covertly alerted accused No.1 about their plan on that night. While leaving the house accused Nos.2 and 3 informed accused No.1 that they are coming back the same night at a late hour and asked her to leave the Western door unbolted from inside and to leave the gate unlocked, so that they could easily enter into the house. Thereafter, accused No.1 remained in the house of deceased Nos.1 and 2 viewing T.V. till 10.00 P.M. and leaving to her shed through the Eastern door which was bolted and locked from inside by 1st deceased. Thereafter, accused Nos.2 and 3 entered the house through Western side leaving the accused No.1 to watch outside. The 1st deceased had got up as accused Nos.2 and 3 went near and while talking casually with her about her carelessness in not bolting the door properly, accused No.2 pushed her on the bed and throttled her with his hand. When she tried to scream, a piece of cloth was stuffed into her mouth. In the mean time, 2nd deceased had woke up and tried to go near the cot of 1st deceased, but she was pushed by accused No.3 making her fall on the floor near the cot. When 2nd deceased tried to scream, the accused No.3 covered her mouth and nose pulling down the towel on her head and smothered her to death. After removing the jewels i.e. one gold long chain and a pair of gold bangles from 2nd deceased and a pair of ear studs and gold chain with pearls from 1st deceased, they called accused No.1 and took a can of kerosene from her and accused No.3 set fire to the clothes of deceased Nos.1 and 2 after wetting them with kerosene. Thereafter, accused Nos.1 to 3 walked out of the door and while going away, they warned accused No.1 to keep silent over the incident and accused No.2 gave her a pair of ear studs promising to pay Rs.20,000/- soon. They instructed accused No.1 to inform the fire services through some neighbour and gave a vague complaint to the police. On the way accused No.2 gave a long gold chain to accused No.3 by keeping the rest of jewels with him. Accused No.2 went back to Guntakal by Hampi Express instructing accused No.3 to phone him at 7.30 A.M the next day morning about the incident just to create an alibi. At about 6.00 A.M. on 30.05.2001, accused No.1 acting casually went and informed neighbour that she saw flames in the house of deceased Nos.1 and 2 through the partly opened Western door and requested to call fire services. Thereupon, P.W.1 sent P.W.2 to give information at Fire Service Station. On receipt of information, P.W.3 and his staff rushed to the scene and put off the fire spraying water. In the meanwhile, P.W.20 Inspector of Police, on hearing a vague rumor about something serious having occurred in Ram Nagar, rushed to the scene and enquired accused No.1, who was present there, but she gave a report concealing the facts to keep the police on the wrong track. Thereafter, P.W.20 recorded her statement and sent the same to P.W.19 for registering the case and after registering the case in Crime No.74 of 2001, he took up investigation and conducted inquest over the dead body of the deceased and recorded the statements of witnesses and enquired about P.W.15 who was away at Delhi. On 07.07.2001 they traced out accused No.1 in Kurgunta village at her sister’s house and on interrogation in the presence of P.Ws.14 and 17, she revealed about her participation in the offence at the instance of accused Nos.2 and 3 and produced a pair of gold ear studs, which were given by accused No.2 and the same were seized under the cover of mahazar in the presence of above mediators. On the same day, acting on the information, P.W.20 and his staff proceeded to G.Peddanna’s Cool Drink Shop situated near I road, Sivalayam and arrested accused Nos.2 and 3 there at 3.30 P.M. They were interrogated separately and on recording the confessional statements, accused No.2 produced a pair of Golden Bangles and one Gold chain with pearls and accused No.3 produced a long chain of two strands and they were seized in the presence of mediators and accused Nos.2 and 3 were arrested. After completion of the investigation, police filed charge sheet against the accused under Sections 302, 201 read with 302, 449 and 109 read with 34 IPC. The learned Sessions Judge has framed the charges Under Section 449 IPC against accused Nos.1 to 3, Section 302 IPC against accused Nos.2 and 3, Section 302 read with 109 IPC against accused No.1, Section 201 IPC against accused Nos. 1 to 3 and Section 404 IPC against accused Nos.1 to 3. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 20 and got marked Exs.P.1 to P.23 and M.Os.1 to 8. No oral evidence was adduced on behalf of the accused, but Exs.D.1 and D.2 were marked. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused Nos.1 to 3 not guilty for the offences under Sections 449 IPC, 302 IPC, 302 read with 109 IPC and 201 IPC, and acquitted them for the said offences, but found them guilty for the offence under Section 404 IPC and convicted and sentenced them to suffer rigorous imprisonment for a period of 3 years each and also to pay a fine of Rs.1,000/- each in default of payment of fine, they shall suffer simple imprisonment for Two months each. Aggrieved by the said conviction and sentence, the accused have filed the present appeal No.1357 of 2004. Aggrieved by the acquittal of the accused for the offences under Sections 449 IPC, 302 IPC, 302 read with 109 IPC and 201 IPC, P.W.15, who is the son-in-law of 1st deceased and husband of 2nd deceased has filed the Criminal Revision Case No.635 of 2005. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 302, 201 and 404 IPC against the accused beyond reasonable doubt? P O I N T: According to the prosecution, accused Nos.2 and 3, who are the brother’s sons of 1st deceased, have hatched a plan to kill the 1st deceased, so that accused No.2 can get the Will deed executed in his favour and benefit financially and took the assistance of accused Nos.3 and 1 and planned to commit murder of deceased Nos.1 and 2. Accordingly on 29/30.05.2001 with the assistance of accused Nos.1 to 3 entered into the house of deceased Nos.1 and 2 and killed them by smothering and throttling and thereafter set fire to the dead bodies. The learned Sessions Judge has found that the prosecution has failed to establish the offence under Sections 449 IPC, 302 IPC, 302 read with 109 IPC and 201 IPC against the accused as all the witnesses turned hostile to the prosecution. The Revision petitioner’s counsel has pleaded that motive for the commission of offence by accused Nos.2 and 3 in causing the death of the deceased was established by the prosecution and there are no other persons interested in causing the death of deceased Nos.1 and 2 and from examining the circumstantial witnesses, the prosecution could able to establish the offence under Sections 302 and 201 IPC against the accused. Even though the prosecution has examined P.Ws.1 to 20, the relevant witnesses to establish the offence are P.Ws.1 to 13 and P.Ws.19 and 20. P.Ws.1 and 2 are the neighbours, who came to the house of deceased Nos.1 and 2 on the information given by accused No.1, and informed to the fire services about the fire in the house of deceased Nos.1 and 2, but they turned hostile to the prosecution and stated that they did not see the dead bodies in the house of deceased. P.W.4 is leading fireman, who has stated about the extinguishing of fire in the house of deceased Nos.1 and 2. P.Ws.5 and 6 are the circumstantial witnesses have turned hostile to the prosecution. P.W.7, who is landlord of accused No.2 at Guntakal, has stated that on the date of incident, in the morning at 6.30 A.M., he went to duty and returned at 11.00 A.M, and his wife informed that accused No.2 and his wife received a phone call about the death of their relative. P.W.8 close friend of accused No.2 and P.W.9 is the wife of P.W.8, have turned hostile. The circumstantial witness P.W.10 also turned hostile. P.W.11, who is the son of accused No.1, also turned hostile. P.W.12, auto driver, who took accused Nos.2 and 3 to the house of deceased also turned hostile. P.W.13 mediator to the inquest conducted on the dead body of the deceased also turned hostile. The only evidence available on record to establish the death of the deceased is Doctor, who conducted autopsy over the dead bodies. He examined as P.W.3. According to him that the cause of death of both the deceased is due to shock and burns. Therefore, the prosecution could able to establish that both the deceased died due to burn injuries. Even though, the prosecution has examined P.Ws.14 and 17, who are the mediators for the arrest of accused Nos.1 to 3 and recovery of gold ornaments at their instance, their confessional statements given to the police, cannot be relied upon. Thus, there is no evidence on record to connect the accused with the death of the deceased. Thus, the learned Sessions Judge has rightly come to the conclusion that the prosecution has failed to establish the charges under Sections 302 and 201 IPC against the accused. With regard to the conviction of the accused for the offence under Section 404 IPC, the appellants’ counsel has pleaded that P.Ws.14 and 17, who are the mediators for the seizure of gold ornaments at the instance of accused Nos.1 to 3 have not identified the accused and their evidences cannot be relied upon and the evidence of P.W.18, who conducted the test identification of the gold ornaments, identified by P.W.5 cannot be believed as he has sent his assistant to get similar gold ornaments from another gold shop, which is worth more than Rs.1,00,000/- without any written requisition and also pleaded that the mediators report was written by police constable. Therefore, the prosecution could not able to establish the recovery of the property from the possession of the accused and identifying the same as belongs to the deceased. P.W.14, who is the mediator has stated in his chief- examination that on 07.07.2001 himself, the Inspectors of Police, I and II Town and Sub-Inspectors of Police, I and II Town and staff went to the house of Mangali Narayanamma and found accused No.1 sitting in front of the house of Narayanamma and she attempted to run away on seeing them and they apprehended her and recorded her statement regarding the death of Sundaramma and Renuka Devi. She produced one pair of gold ear studs and the same was seized under Ex.P.18. Then they all including accused No.1 came to 1st road in Anantapur Town near Sivalayam by 3.00 or 3.30 P.M. and found accused Nos.2 and 3 present and they apprehend them and recorded their statements under Ex.P.19 and accused No.2 produced one pearl chain, which is marked as M.O.2, and two gold bangles, which marked as M.O.3. Accused No.3 produced a gold chain, which is marked as M.O.4. They arrest both the accused. In the cross-examination, he has stated that by the time they have gone to the house of Narayanamma, there were about 10 to 15 police personnel surrounding the house of Narayanamma, keeping accused No.1 in front of the house. He also further stated that accused Nos.2 and 3 were apprehended by the police while they were running on the road near Raghavendra Swamy Temple, 1st Road. He also further stated that himself and the VAO of Kurugunta are very close friends. The Victor, Inspector of II Town P.S., was taking the assistance of himself and VAO Prasad to act as mediators and to accompany him to the place. Himself and Prasad were regularly assisting the Victor. He admitted that in Ex.P.19 it was mentioned that the proceedings were held at 3.30 P.M on 07.06.2001 in the 1st road, Anantapur. Under the signature in Ex.P.19, the date was put as 07.07.2001. He has also admitted that when M.O.1 was seized from the possession of accused No.1, they were intact with screws and one of the ear studs was having smoke as though it was burnt before it was taken possession and another one is not having screws. M.O.3 bangles are new one and M.O.4 chain is used one and he admitted that he cannot identify the accused Nos.1 to 3 due to lapse of time. At that stage, he was declared as hostile. In the cross-examination, he has stated that the pair of ear studs, which were shown to him then are the same which were seized from accused No.1, but not the ear studs already marked as M.O.1, and accused Nos.2 and 3 were arrested near Sivalayam and proceedings under Ex.P.19 were held at Sivalayam but not at Raghavendra Swamy Temple. Therefore, P.W.14 has admitted about the presence of police at the house of Narayanamma, where accused No.1 was present before they going to the said house and he has also not identified accused Nos.2 and 3. He stated in his cross-examination that he cannot identify accused Nos.1 to 3 due to lapse of time. Moreover, himself and VAO regularly assisting the Victor, who is the investigating officer in this case. Even though, he has identified M.O.1, which was seized from the possession of accused, but in the cross-examination by Public Prosecutor, he has stated that the pair of ear studs which shown to him are the same which were seized from accused No.1, but not the ear studs already marked as M.O.1. Therefore, P.W.14 is only speaking about the identification of the property, shown by Public Prosecutor. With regard to arrest of accused Nos.2 and 3, even though P.W.14 stated that accused Nos.2 and 3 were apprehended by the police near Raghavendra Swamy Temple, but in the cross- examination, he stated that accused Nos.2 and 3 were apprehended by the police at Sivalayam, but not at Raghavendra Swamy Temple. P.W.17, who is another mediator, in the chief-examination itself he stated that he cannot identify Mangali Alivelamma, who was present near the house of Mangali Narayana and he cannot say whether the ear studs shown to him are the same that were produced by Alivelamma. According to him, on 3.30 P.M. on telephone message from the police, he went to 1st road to the place nearby Sivalayam and by the time he went there, he found police along with two persons and P.W.14 was also present there. He cannot identify whether those two persons are present in the Court or not. But he has disclosed their names as Ramakanth and Ramakrishna. Police seized gold chain of two rows from accused No.3 and he cannot identify the chain shown to him as that of the chain seized from accused No.3. One pearled chain and one pair or gold bangles were seized from Ramakanth by the police and he cannot identify the items which are shown to him. Therefore, P.W.17, who was present along with P.W.14 at the time of seizure of M.Os.2 to 5 at the instance of accused Nos.1 to 3, has not supported the P.W.14 and not identified the accused nor the property. P.W.17 further stated in the cross-examination that Ex.P.19 was drafted on 7th June 2001 at 3.30 P.M. and by the time he reached that place, the police and another mediator P.W.14 interrogating the accused and the gold ornaments were already in the hands of police. Therefore, P.W.17 has completely turned hostile to the prosecution and not supported the story of the prosecution. Even P.W.14, as already discussed above, has also not identified the accused but only identified the property, which were shown to him by the public prosecutor. According to P.W.14 and P.W.17, Ex.P.19, which was the mahazar recorded at the time of seizure of gold ornaments at the instance of accused Nos.2 and 3 is dated 07.06.2001, but the date put under the signatures is 07.07.2001. Therefore, it is doubtful whether the seizure was made on 07.06.2001 or 07.07.2001. With regard to identifying the said property M.O.Nos.2 to 5 as belongs to the deceased, the prosecution has examined P.W.15, who is the son-in-law of 1st deceased and husband of 2nd deceased. Admittedly, he was not present at the time of incident. According to him, he has identified the property in the identification proceedings, M.O.2 pearl chain and M.O.5 one pair of gold ear studs belonging to his mother-in-law and M.O.Nos.3 and 4 gold bangles and gold chain belonging to his wife. P.W.18 is the Panchayat Secretary of Rachepalli, who has conducted the test identification parade of the said gold articles, in whose presence P.W.15 has identified the same. According to him on 09.06.2001, while he was present in Krishnakala Mandir, police came and asked him to conduct the identification proceedings of gold ornaments and handed over 4 articles. He asked his assistant to collect similar types of gold ornaments from bazaar and accordingly, he brought 4 articles of each item and he mixed them and asked P.W.15 to identify the same. P.W.15 has identified M.Os.2 to 5. In the cross-examination he has stated that the value of the 4 items brought by his assistant is more than Rs.1,00,000/-. He has not sent any written letter for handing over the said articles to his assistant and the said articles were brought from Gondi Pandurangaiah Jewellery shop , old town, Anantapur. He also admitted that one Police Constable drafted Ex.P.20 test identification proceedings, but he has explained that as his handwriting is not good, he got drafted the same by the police constable. He has stated that he can identify only M.O.4 because it was having spectrum type plate. He was declared hostile. In the cross-examination,