HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL APPEAL No.59 of 2008 Between: Boya Machanuru Sommanna and two others …. Appellants and State of Andhra Pradesh, rep. By Public Prosecutor. …. Respondent This court made the following: HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE P. SWAROOP REDDY CRIMINAL APPEAL No.59 of 2008 JUDGMENT: (per the Hon’ble Sri Justice P.Swaroop Reddy) Appellants/Accused Nos.1 to 3 filed this criminal appeal questioning the conviction and sentence recorded against them by II Additional Sessions Judge, Kurnool at Adoni vide judgment, dated 18.12.2007, whereby A1 was convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for brief, “IPC”); also to undergo imprisonment for a period of ten years and also to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one year for the offence punishable under Section 376 IPC; A2 was convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one year for the offence punishable under Section 376 r/w 511 IPC; and A3 was convicted and sentenced to undergo imprisonment for a period of three years and also to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for one year for the offence punishable under Section 201 IPC. 2. The case of the prosecution is briefly stated as follows:- Accused Nos.1 to 3 are the residents of Ramadurgam village of Chippagiri Mandal of Kurnool District. On 28.12.2006 at about 08.30 AM near Madagadda one Mangali Sailaja (hereinafter referred to as “the deceased”) and her sister Rukmini-P.W.1 went to their fields in the morning to draw water to the standing crop. At about 10:00 AM the deceased asked P.W.1 to continue the drawing of water, and she would go to Uppu Vanka to collect firewood and come. Till 01:00 PM when her sister did not return, P.W.1 went to the said Vanka and searched for her, but in vain. She enquired P.W.6, A.1 and other persons present there about her sister. Then P.W.6 stated that she saw her sister with a towel on her going towards Madagadda to their own lands. P.W.1 then thought that her sister might have gone home without intimating her. P.W.1 went home and enquired her mother about the deceased. There also she did not found her sister and her mother said that the deceased has not returned home. Then P.W.1 along with her parents, senior paternal uncle and paternal aunt and some others came to the fields at about 04:00 PM and searched for the victim in the surrounding places, but the deceased was not found. Next morning at about 06:00 AM they all came to the fields and continued the search and during the said search, P.W.4 found the deceased lying dead in the land of P.W.5. Thereby on 29.12.2006 at 11:00 AM P.W.1 and P.W.10, Sarpanch of the village went Chippagiri Police Station and gave a report to P.W.14, who registered the same as F.I.R. in crime No.44 of 2006 for the offence punishable under Sections 376, 302 and 201 IPC and informed the same to the Inspector of Police-P.W.18, who took up investigation. During the course of investigation, P.W.18 visited the scene of offence, noticed the dead body of the deceased half naked apparently raped and killed; conducted inquest in the presence of panchayat secretary and other mediators; seized material objects; sent the dead body for postmortem examination; sent the seized clothes of the deceased to Regional Forensic Science Laboratory. While the investigation was going on, on 16.10.2007 at 10:00 AM, A1 and A2 went to the Village Secretary-P.W.12 and confessed about the commission of offence by them. They stated that while the deceased was collecting firewood in the fields, A1 and A2 have dragged her to a nearby field by closing her mouth with a towel and A1 raped her and A2 attempted to rape her. In the meanwhile, the towel with which the mouth of the deceased was closed loosened and she started shouting and threatened them that she would inform the matter to the villagers. On that the accused got frightened and threw a stone on her head and on her cheek and strangled her with the towel, resulting in the death of the deceased instantaneously. After the death of the deceased, A1 and A2 left the dead body in the fields and returned. A3 enquired A1 about the crime and learnt about the same. Thereafter A1 to A3 went to the fields during midnight and shifted the dead body from their fields to the field of the uncle of the deceased in order to conceal the offence. P.W.12 recorded the confessional statement of A1 and A2 under Ex.P37 and sent the same to the Sub- inspector of Police. Immediately, P.Ws.14 and 18 visited the office of P.W.12 and found A1 and A2 there and arrested them. On the basis of confession of the accused, P.W.18 seized the material objects in the presence of mediators. After receiving all the relevant documents and after completion of investigation, P.W.18 filed charge sheet before the Judicial Magistrate of First Class, Alur. After complying with the provisions of Sections 207 and 209 Cr.P.C., the case was committed to the court of Sessions for trial. 3. Charges under Sections 376, 302 and 201 IPC against A1; under Sections 376 r/w 511, 302 and 201 IPC against A2; and under Sections 379 and 201 IPC against A3 were framed. The accused pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused the prosecution got examined P.Ws.1 to 18 and marked Exs.P1 to P45, besides marking M.Os.1 to 9. After the evidence of the prosecution witnesses was closed, the incriminating substance in the evidence of all the witnesses was put to the accused when they were examined under Section 313 Cr.P.C. On behalf of the accused no oral or documentary evidence was adduced. 5. P.W.1 is the younger sister of the victim who was allegedly present near the fields along with the deceased. She deposed that her sister has gone for collecting firewood and thereafter she did not return. She started searching for her sister and later she gave a complaint to the Sub-inspector of Police. P.W.2 is the father of the deceased and P.W.3 is the mother of the deceased. P.W.4 is a person who allegedly searched for the deceased as she did not go home and he was said to be the person who found the dead body in the fields with bruises to her left cheek etc. According to him, it appeared on seeing the dead body that somebody has raped the deceased and killed her. P.W.5 is the cousin of P.W.2, who was one among the persons that has searched for the deceased and found the dead body. He prepared the complaint on the narration of P.W.1. He was present when Ex.P1 was presented to the police. P.W.6 who was supposed to speak about the circumstances of the deceased being found in the company of the accused immediately before the incident, turned hostile. P.W.7 is the person who found the deceased being taken away by accused Nos.1 and 2 forcibly. P.W.8, who is supposed to speak about the circumstantial evidence of A1 and A2 taking the deceased to their field, turned hostile. P.W.9 was to speak similar to P.W.8 that is A1 and A2 forcibly taking the deceased turned hostile. P.W.10 the Sarpanch of the village who attested Ex.P1 complaint. He is a panchayatdar to the inquest and seizure of certain material objects. P.W.11, who is the senior paternal uncle of the deceased, is a panch witness for the seizure of petty coat of the deceased under Ex.P7 panchanama. P.W.12 is the panchayat secretary, who was present at the time of inquest and before whom the accused have allegedly made an extra judicial confession-Ex.P37, also turned hostile. P.W.13 the panchayat secretary of Chippagiri Mandal turned hostile. He was supposed to speak about the arrest and certain recoveries etc., at the instance of A1 and A2 and jewellery at the instance of A3 under Exs.P20, P21 and P23 respectively. P.W.14 is the Sub-Inspector of Police who registered the statement of P.W.1 as F.I.R. and he took up investigation. P.W.15 the attestor of panchanama also turned hostile. P.W.16 is the medical officer who conducted potency test on A1. P.W.17 is the Civil Assistant Surgeon who conducted autopsy on the body of the deceased and who issued Ex.P27 post mortem certificate. As per his evidence, the deceased had an inside lacerated wound over center of scalp at the size of 5 X 2 C.M. The blunt injury on the left side of Maxilla and Jaw bruish present at the left cheek. The bruish from left side of cheek and around the neck. He also found fractue to the left Jaw and hoid bone. He opined that the death of the deceased was homicidal. P.W.18 the Circle Inspector of Police conducted further investigation and laid the charge sheet. 6. The trial court after considering the evidence of aforesaid witnesses, found the accused guilty and accordingly convicted and sentenced him, as stated supra. Challenging the same, this appeal is filed 7. Now the point for consideration is: “Whether the prosecution proved its case beyond all reasonable doubt?” 8. Out of all the witnesses referred to above, the evidence of P.Ws.1 to 5 is not that relevant. The other witnesses P.Ws.6, 8, 9, 12, 13 and 15 turned hostile. Then remains the evidence of P.W.7. Thus the prosecution evidence rests to a great extent on the evidence of P.W.7 and the alleged extra judicial confession Ex.P37 made before P.W.12 and other circumstantial evidence. As the evidence of P.Ws.1 to 6 is not that relevant for proving the offence that may not be given detailed reference. 9. The contention of the learned counsel for the appellants is that there is no acceptable evidence to prove the guilt of the accused beyond reasonable doubt and that the learned trial Judge has erroneously convicted the appellant and they are entitled for an acquittal. 10. As already referred, the evidence of P.W.s.1 to 6 is not of any great use. The evidence of P.W.7, who is the most relevant witness examined on behalf of the prosecution, is that on the date of the incident by 09:00 AM she started to the fields to collect firewood. She reached the fields at 10:00 AM. There she found the deceased also collecting firewood. She was collecting firewood at one side at those fields and the deceased on the other side. There she saw A1 and A2 with their cattle. She also saw A1 and A2 taking away the deceased by force towards their fields. She stated that she got frightened on seeing that incident and could do nothing and came home. On the next morning she learnt that the deceased was found killed after raping and she has seen the dead body at her house. 11. The contention of the learned counsel for the appellant is that the evidence of P.W.7 cannot be believed at all. In case she had really seen the incident, her natural conduct would have been to report about the same immediately or within a day or two. Her statement was recorded only after three days and the investigating officer also did not give any explanation as to how he came to know that this witness was present at the time of alleged incident. 12. P.W.7 is a 35 years old lady. She is not a child or very young lady. A1 and A2 are in their teens. There was nothing for her to be frightened, in case she has really seen A1 and A2 forcibly taking the deceased. According to the case of the prosecution, there were some other persons around the scene of offence within audible distance. In case something really was seen by P.W.7 i.e., A1 and A2 taking the deceased forcibly, her natural conduct would have been to raise hue and cry or go to the rescue of the deceased. Her statement that she got frightened shows that she was expecting some danger to the deceased, in such an event as already observed her conduct would have to be to go to the help or atleast to make a hue and cry. Even assuming that for some reason she did not do any such things, atleast immediately after going to the village, she would have informed the kith and kin of the deceased about what she has seen. According to the prosecution case, when the deceased did not return home, her parents and her relatives were searching for her. P.W.7 would naturally inform the parents of the deceased even at the time when a search was launched by the parents for locating the deceased. 13. Added to that, the statement of P.W.7 was recorded after three days of the incident mysteriously. As already referred, the investigating officer P.W.18 failed to explain as to how he came to know that P.W.7 was present at the time of incident. Thus no credence can be given to the evidence of P.W.7. If the evidence of P.W.7 is ruled out from consideration, very little remains in favour of the prosecution case. There is no dispute about the death of the deceased being homicidle, though there is some doubt about the theory of rape and for the offence of attempted rape by A2. 14. Coming to the extra judicial confession Ex.P37 made by the accused before P.W.12, it looks very unnatural and lengthy running into pages. It is very difficult to believe that the accused that have allegedly committed such serious offence would without any reason make voluntarily confession to P.W.12. However, P.W.12 turned hostile, there is no possibility of giving any weight to the extra judicial confession made by the accused under Ex.P37. 15. Next comes the recovery of the material objects. The recovery of the stone is of no consequence. The ornaments recovered from A3 or at the instance of A3 is some what relevant, but P.W.1’s evidence is that the ornaments were on the body of the deceased. But P.W.14 Sub-inspector of police says that the ornaments were not recovered from the body of the deceased. If that be the case, the prosecution case that the ornaments were taken away by the accused and one of them is recovered at the instance of A3 and that would connect A3 to the offence, has no legs to stand. 16. Thus this is a case where mostly the case depends on circumstantial evidence, which is in-conclusive. The evidence of P.Ws.1 to 5, who are circumstantial witnesses to connect the accused with the commission of the offence, is not corroborative and cannot be relied upon. The other witnesses P.Ws.6, 8, 9, 12, 13 and 15 turned hostile. Then remains the most crucial witness examined on behalf of the prosecution P.W.7. As already discussed above, the evidence of P.W.7 cannot be relied upon. It is also made clear that the evidence of this witness was also not for the offence of rape committed by the accused but about the accused taking away the deceased. However, in case the same was proved, the prosecution case could have been proved to a great extent against the accused. The story of extra judicial confession made before P.W.12 and the recovery of material objects at the instance of the accused also cannot be believed for the reasons recorded above. 17. The scientific evidence sought to be adduced through the comparison of blood samples also could not help the prosecution, as the Forensic Science Laboratory reported that there was insufficient material for comparison. In the circumstances, it cannot be held that the prosecution case against the accused is proved beyond reasonable doubt and hence, the appellants/accused are entitled for acquittal. 18. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by II Additional Session Judge in Sessions Case No.357 of 2007, dated 18.12.2007, against the appellants-accused Nos.1 to 3 for the offences punishable under Section 302 and 376 IPC against A1, under Section 376 r/w 511 IPC against A2 and under Section 201 IPC against A3, are hereby set side. A1 shall be released forthwith, if he is not required in any other case. The bail bonds of A2 and A3 shall stand cancelled. The fine amount, if any, paid by the appellants shall be returned to them forthwith. ___________________ V. ESWARAIAH, J _________________________ P. SWAROOP REDDY, J December 20, 2010 LMV