HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 487 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The sole accused in S.C.No.146 of 2006 on the file of the IV Addl. Metropolitan Sessions Judge, Hyderabad, is the appellant. He was accused of committing the murder of R. Murugesh by stabbing him with a knife. The trial Court having found the appellant guilty of the offence punishable under Section 302 IPC, convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.1,000/- and in default of payment of the fine amount, to undergo simple imprisonment for a period of two months, by judgment dated 17.08.2006. 2. The prosecution alleged as follows: i) On 30.08.2005 at about 7.30 p.m. P.W.1 and his father namely R. Murugesh (hereinafter called as ‘the deceased’) went to Mangalhat on a cycle for seeing Ganesh Idols and on returning home at about 9.00 p.m. when they reached Kamatipura, one person by name Suresh attacked the deceased from back side and stabbed him with a knife on his stomach and all over his body saying that ‘Mere Ko Pahechana Re”. As a result of which, the deceased sustained multiple injuries and died on the spot. ii) P.W.1 submitted a complaint marked as Ex.P.1 before the Mangalhat Police Station and the same was registered as Crime No.176 of 2005 under Section 302 IPC. In the complaint, P.W.1 also stated that earlier he had seen the said Suresh-accused near his house and about two weeks back, the accused attacked his father at Begum Bazar. Thereafter, P.W.8, the Inspector of Police, Mangalhat P.S. took up investigation. During the course of investigation, he conducted scene of offence panchanama (Ex.P.3), drafted rough sketch of the scene (Ex.P.4), held inquest over the dead body of the deceased, and sent the dead body of the deceased for post-mortem examination. P.W.6, Dr. G. Damodar, Assistant Forensic Medicine, O.M.C., Hyderabad, conducted autopsy over the dead body of the deceased and issued Ex.P.11 post-mortem report opining that the death of the deceased was due to multiple stab injuries. iii) On 21.08.2005, P.W.8 apprehended the accused and on interrogation he confessed to have committed the offence and accordingly recorded the confessional statement of the deceased and also seized his blue colour jeans pant with blood stains under the cover of panchnama and after completing investigation and receiving necessary reports, he laid charge sheet against the accused for the offence punishable under Section 302 IPC before the I Addl. Chief Metropolitan Magistrate, Hyderabad, who numbered the same as P.R.C.No.2 of 2006 and committed the case to the Court of Sessions as it is exclusively triable by the Court of Sessions. Having received the case, the Sessions Judge numbered it as S.C.No.146 of 2006 and made over to the IV Addl. Metropolitan Sessions Judge, Hyderabad, for disposal, in accordance with law. iv) Upon appearance of the accused and upon hearing both sides, the learned Sessions Judge examined the accused under Section 228 Cr.P.C. and framed a charge under Section 302 IPC, read over and explained the same to the accused in Telugu, for which he pleaded not guilty and claimed to be tried. 3. In order to prove the guilt of the accused, the prosecution examined PWs 1 to 8 and got marked Exs.P.1 to P.15 apart from M.Os 1 to 9. On behalf of the defence, no oral or documentary evidence was adduced. 4. After hearing the arguments on both sides and after evaluating both oral and documentary evidence, the learned Session Judge convicted and sentenced the accused as stated supra. 5. Heard Sri D. Raghava Reddy, learned counsel, for the appellant and the learned Public Prosecutor for the State. 6. Now the point for consideration is: “Whether the Prosecution is successful in bringing home the guilt of the accused beyond all reasonable doubts?’ POINT: 7. This Court perused the entire material on record and also the impugned judgment. The learned Sessions Judge mainly relied on the evidence of P.Ws.1 and 2. P.W.1 is the son of the deceased and a child witness aged about 13 years and P.W.2 is the person who saw P.W.1 weeping and sitting in front of the deceased. 8. The learned counsel for the appellant submitted that prior to examination of the child witness, the Sessions Judge ought to have taken necessary steps to ascertain as to whether the witness aged about 13 years is capable of deposing in the Court and whether he can inform the Court the truth. 9. On perusal of the record, it is seen that the Sessions Judge has not even put to the said witness any question to ascertain as to whether he is capable of giving evidence. The perusal of the evidence of P.W.1 reveals that while himself and his deceased father were returning home on a cycle and when they reached Kamatipura, the accused attacked his deceased father from behind and stabbed on his stomach with a knife and pointing the knife to the neck of his father, the accused asked his father “have you recognized me”. The said evidence when compared with the evidence of the doctor P.W.6, who conducted post mortem examination over the dead body of the deceased, is totally in contradiction. Ex.P.11 post mortem report issued by P.W.6 runs as follows: 1) A horizontally placed linear abrasion 11 x 5 cm extending from the midline 2 cm below the chin running laterally to the left angle of mandible, red in colour. 2) A horizontally placed cut injury of 4 x 1 x 1 ½ cm on the upper part left side of neck 1 cm away from the midline 1 to 2 cm below the left ramus of mandible margin clean cut angle acute. 3) A horizontally placed cut injury of 3 ½ x ½ cm x skin deep on the middle of the front of neck, 7 cm below the chin, margins clean cut, angle acute. 4) A horizontally placed cut injury of 3 x ½ cm x skin deep on the right side of neck 3 ½ cm below the injury No.3 margins clean cut angle acute inner tend just crossing the midline. 5) A horizontally placed stab wound 2 ½ cm x ½ cm x cavity deep on the front of left lower chest, 5 cm away from the midline and 11 cm below the left nipple, margins clean cut, angles acute with underlying cutting of the 9th rib costal cartilage with a 2 cm cut in the pericardium cut in the lower part of heart of 2 x ½ x ½ cm associated with haemopericardium and bilateral haemothorax. 6) An oblique placed stab injury of 2 x ½ cm x cavity deep on the left side of back of trunk, 1 cm. away from midline and 33 cm below the root of neck, margins clean cut, angles acute with upper end way and lower and towards midline, the injury is continued the erector spine muscle at L1 Vertebra corresponding cuts in the superior mesentry and omentum, associated haemopentonium. 7) A vertically placed stab injury 2 ½ x 1 cm x cavity deep on left back of trunk 10 cm away from the midline and 5 cm below the injury No.6 margins clean cut angles acute, outer part is beveled, extending into left Psoas muscle with associated retroperitoneal haemorrhage. 8) A vertically oblique stab injury of 2 x ½ cm x cavity deep on the right side back of trunk, 7 cm away from the midline and 5 cm below the injury No.6 margins clean cut, angles acute upper and away and lower end towards the midline, entered the origins of the right psoas muscle with associated retroperitoneal haemorhage. 10. After witnessing the attack, the natural conduct of P.W.1 being a child witness aged about 13 years would be to inform either to the inmates of the house or to his relatives. Whereas, in the present case, P.W.1 immediately after seeing the attack, rushed to the police station and lodged Ex.P.1 complaint. 11. Further, the learned counsel for the appellant raised the question of identification of the accused. This Court perused Ex.P.1 complaint lodged by P.W.1 in which he has narrated the incident and, in the last portion, it is stated that he saw the accused-Suresh near his house two weeks before the incident. But, there is no evidence to show that the accused is known to P.W.1 and there is no description in Ex.P.1 complaint regarding the features of the accused, his father’s name or his occupation or where he resides. But, in order to substantiate that the accused is a known person to P.W.1, the prosecution has taken efforts by adducing evidence that two weeks prior to the incident, a quarrel took place between the deceased and the accused. But there is no complaint in connection with the said quarrel. Except mentioning the name of the accused in Ex.P.1 complaint, nothing is stated about the accused therein. The Investigating Agency also failed to inform this Court how the said Suresh is arrayed as an accused in this Case. More over, the accused was identified for the first time in the Court by P.W.1. In these circumstances, P.W.1 cannot be termed as an eye witness to the incident and his evidence is not inspiring confidence of the Court. 12. P.W.2 deposed that he saw P.W.1 sitting in front of the deceased and crying in the midst of the public. But her statement is unnatural and she has not even questioned P.W.1 as to why he is crying and she has not even enquired him what actually happened in the place of occurrence. 13. Apart from P.Ws. 1 and 2, one more witness said to be an eye witness to the incident is examined as P.W.7, but he has turned hostile and nothing could be elicited from his cross-examination by the prosecution in support of its case. 14. The motive attributed for the said occurrence is that the deceased had illicit intimacy with the mother of the accused and the deceased is responsible for the death of mother of the accused who died of burns eight years prior to the occurrence. The said motive is also not properly proved by the prosecution by adducing any evidence. Hence, the prosecution miserably failed to prove the motive and also the manner in which the appellant-accused killed the deceased. 15. For the foregoing reasons, we are of the opinion that the conviction and sentence ordered against the accused is liable to be set aside. 16. In the result, the criminal appeal is allowed and conviction and sentence recorded against the appellant-accused by the learned IV Addl. Metropolitan Sessions Judge, Hyderabad, in S.C.No.146 of 2006, by judgment dated 17.08.2006, is hereby set aside. The appellant-accused shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid shall be refunded. ____________________ A. GOPAL REDDY. J __________________ RAJA ELANGO, J 29th September, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 487 of 2007 29th September, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 487 of 2007 Dated:29-09-2010 BETWEEN: Suresh Singh @ Suresh …Appellant AND State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: