THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 124/2007 Dt.16-6-2010 Komarasetti Gurunadh S/o Chinna Appa Rao ..Appellant/accused V. The State of Andhra Pradesh, represented by its Public Prosecutor,High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 124/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The sole accused in SC No.15/2006 on the file of Metropolitan Sessions Judge, Vijayawda was tried for the alleged commission of offence punishable under Section 302 IPC and was convicted and sentenced to imprisonment for life and to pay a fine of Rs.1000/- in default to suffer SI for one month, by judgment of that court dt. 18-9-2006. He filed this criminal appeal challenging the correctness of the conviction and sentence recorded against him. The substance of the charge framed against the appellant/accused is that on 1-12-2004 at about 9-15 PM on Bandar Road, opposite to Durga Mahal, in front of TDP party office shopping complex, Patamata, Vijayawada, the appellant/accused caused the death of Komarrasetti Pedda Appa Rao (hereinafter referred to as “the deceased”) by stabbing him with knife and thereby committed an offence punishable under Sec. 302 IPC. The prosecution story as unfolded during the trial, that led to the conviction of the appellant/accused is, as follows: The deceased, P.W.1 and the father of the accused are brothers. P.W.2 is the daughter of the deceased. The accused married the daughter of P.W.2. The deceased is living with the complainant- P.W.1 and they are doing plastic articles business on mobile push- cart. The accused is also doing the same business. The deceased was instrumental in marriage between the accused and the daughter of P.W.2. The marriage was performed about seven years prior to the date of incident. After marriage, the accused and his wife lived happily for about two years and thereafter the accused started demanding more money. While so, on 29-11-2004, the deceased, P.W.2 and others went to the house of the accused and admonished him. There arose some disputes between the accused and the deceased. The accused demanded for the sale of ½ acre of land belonging to the deceased, so that he can improve his business. While so, on 1-12- 2004 at about 9-15 PM after finishing their business, the deceased and P.W.1 were proceeding to their house. While so, P.W.1 was going ahead. P.W.5 went on a motor cycle to P.W.1 and informed him that the deceased was attacked and sustained bleeding injuries. On information so received, P.W.1 went running towards the place where the deceased was attacked. When he was running towards the place of occurrence, he saw the accused running in opposite direction and boarding the bus. P.W.1 rushed to the scene of offence and found the deceased in a pool of blood. P.Ws.1 and 4 took the injured to a nearby hospital, where he was declared dead. P.W.14-Assistant Sub- Inspector of Police, on receiving death intimation covered under Ex.P- 16 from the Government Hospital, Vijayawada, immediately went to the Hospital and recorded the statement covered under Ex.P-1 from P.W.1. On the basis of Ex.P-1, he registered a case in Cr.No.528/2004 and issued FIRs to all the concerned. Ex.P-15 is the First Information Report. P.W.15-Inspector of Police on receiving information from P.W.14 proceeded to the scene of offence; got the scene photographed through P.W.10; prepared an observation report covered under Ex.P-12 in the presence of P.W.12 and another; seized M.O.1 to 7 at the scene of offence; and prepared rough sketch covered under Ex.P-7. On 2-12-2004 he held inquest over the dead body of the deceased in the presence of P.W.11 and another. Ex.P-11 is the inquest report. After conducting inquest, P.W.15 sent the dead body for postmortem examination. P.W.13-Professor in Forensic Medicine, Siddhartha Medical College, Vijayawada conducted autopsy over the dead body of the deceased and found six injuries on the person of the deceased and issued postmortem certificate covered under Ex.P-14 opining that the cause of death was due to multiple injuries. On 2-12- 2004 P.W.9 produced the accused before P.W.15, who effected arrest of the accused in the presence of P.W.12 and another. He seized blood stained pant (M.O.8) and shirt (MO.9) from the accused under a cover of pnchanama-Ex.P-13. He sent the accused to the Government Hospital as he was having some injuries. The wound certificate issued by the Medical Officer is marked as Ex.P-18. He sent all the material objects to the Forensic Science Laboratory for analysis. After completion of investigation and on receiving relevant reports, the successor of P.W.15 filed the charge sheet before the III Metropolitan Magistrate, Vijayawada. Learned Magistrate took the charge-sheet on file as PRC No.5/2005 and committed the case to the Metropolitan Sessions Division as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.75/2006. The learned Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 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 20 documents and exhibited 13 material objects. The learned Sessions Judge after relying upon the evidence of P.W.4, who is said to be an eye witness found the accused guilty for the offence punishable under Section under Sec. 302 IPC and convicted him accordingly and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.1000/- in default to suffer simple imprisonment for a period of one months, by judgment dt. 18-9-2006. Hence, this criminal appeal by the sole accused. Sri K.Suresh Reddy, learned Counsel appearing for the appellant-accused contended that except the evidence of P.W.4, there is no other evidence to connect the accused with the offence of murder. He further contended that it is highly difficult for P.W.4 to remember the facial impression of the accused as in her evidence she deposed that she saw the accused at the time of incident and also in the court after 21 months. Further P.W.4 deposed that she has not seen the accused stabbing the deceased. Therefore, it is unsafe to convict the accused basing upon the solitary testimony of P.W.4 and on suspicion and insufficient evidence. He further contended that the seizure of M.Os.8 and 9 have not been proved as the mediators to the seizure turned hostile to the case of the prosecution. Therefore, conviction and sentence recorded against the accused is liable to be set-aside. . Learned Public Prosecutor while sustaining the judgment of conviction and sentence under appeal contended that the accused developed enmity with the deceased when the deceased, P.W.2 and others admonishing him on the previous occasion and P.W.1 also saw the accused coming in opposite direction by running and boarding the bus. Therefore, he prays to dismiss the appeal. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed on the appellant for the offence punishable under Sec. 302 IPC are liable to be set-aside or modified? P.W.1 is not an eye-witness to the incident. P.W.1 in his evidence deposed that on information given by P.W.5 that the deceased was attacked and sustained bleeding injuries, he rushed to the scene of offence and while running towards the scene of offence, he saw the accused who is the son of his younger brother Chinna Appa Rao coming in his opposite direction and boarded the bus and went away. He went to the scene of offence and found the deceased lying in a pool of blood. The deceased was shifted to Government Hospital, where the Doctor pronounced that deceased was dead. He gave a report covered under Ex.P-1 to the police station. The accused married the grand daughter of the deceased. The accused used to treat his wife nicely for two years and thereafter started demanding more money. On that ground, the mother of the wife of the accused and her relatives including the deceased went to the house of the accused on 29-11-2004 and admonished the accused. He has seen the accused boarding running bus when he was going to the place of occurrence. P.W.2 is the daughter of the deceased. She deposed that on information, she went and saw the dead body in the Government Hospital, where she came to know that her father was killed by the accused. She further deposed that on 23-11-2004, the accused sent her wife to her house for the purpose of brining money. The accused looked after her daughter nicely for about one year and thereafter started demanding money. On 29-11-2004, herself and her father and others went to the house of the accused, where the accused demanded to give land, for which, her father refused. On refusal, there occurred an altercation. In the cross-examination, she admitted that she did not lodge any police complaint for the harassment caused by the accused. P.W.3 who owns a medical shop in Vijayawada deposed that in front of their shop after the divider, two persons were pushing each others on 1-12-2004 at about 8-30 PM. He has seen the blood on the back side of the aged person and rushed to the place, where the deceased fell on his back on road margin. He cannot identify the accused as it happened long back. Himself and others informed to the people that the person stabbed was running away from the scene of offence. He heard the cries taking the name of “Gurunadham”. He admitted that he did not see the face of the offender. P.W.4, who is an independent witness and on whose evidence the accused was convicted, deposed that she used to sell maize corn in the market. About one and a half years back, at about 9- 30 PM in Patamata area by the side of a brandy shop, one old person and one young person were quarrelling with each other. The old man was pushed backwards and he fell down. He sustained bleeding injuries. On seeing the old man falling down, she rushed to the place and found the person who stabbed the old man was running away from the place of occurrence. She has seen the person who stabbed the old man and identified the person standing in the court is the same person who stabbed the aged person. On the date of incident, the accused was not having beared, now the accused is having beared and standing in the court. In the cross-examination, P.W.4 admitted that she has seen the accused for the first time on the date of incident and thereafter she has seen the accused in the court. She admitted that she has not seen the accused stabbing the deceased. P.W.5 deposed that he has not seen the person who pushed the injured and caused injuries and he cannot identify the person who caused injuries to the deceased even if shown to him. P.W.7, 8 and 9 were declared hostile. According to the prosecution, P.W.9 is the person who produced the accused before P.W.15. But he did not support the prosecution case. P.W.9 deposed that the accused is related to him and he never met him. P.W.13 is the Doctor who conducted postmortem examination over the dead body of the deceased and issued postmortem certificate covered under Ex.P-14 opining that the cause of death of the deceased was due to multiple injuries. P.W.15 is the Inspector of Police. He deposed that on receiving intimation from P.W.14 he took up investigation and seized M.Os.1 to 7 under a cover of mediatorsrnama-Ex.P-12. He further deposed that while observing the scene of offence, he found two knives and one towel. P.W.9 brought the accused to the police station and produced before him and stated as in Ex.P-4. He effected arrest of the accused and seized one blue jeans pant covered under M.O.8 and white shirt covered under M.O.9 from the accused. Since P.W.9 declared hostile and did not support the case of the prosecution, the prosecution failed to establish the seizure of M.Os.8 and 9 from the possession of the accused. Except the evidence of P.W.4, there is no other evidence to connect the accused with the offence of murder. P.W.4 in her cross- examination categorically admitted that she has not seen the accused stabbing the deceased; she has seen the accused for the first time on the date of incident and thereafter she has seen the accused in the court. Therefore, it is highly doubtful that she remembers the face of the accused. In the absence of any cogent and convincing corroborative evidence that the accused stabbed the deceased, it is highly unsafe to convict the accused solely upon the scanty evidence of P.W.4. Therefore, the accused cannot be convicted for the offence punishable under Sec. 302 IPC. The Criminal appeal is, accordingly, allowed, setting aside the conviction and sentence recorded against the appellant/accused for the offence under Section 302 IPC by judgment dt.18-9-2006 in Sessions Case No.75/2006 on the file of Metropolitan Session Judge, Vijayawada. The appellant/accused is found not guilty of the charge levelled against him and is, accordingly, acquitted. The fine amount, if any, paid by him shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other case. --------------------- A.GOPAL REDDY,J --------------- K.C.BHANU,J DT. 16-6-2010 Kmr