THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.214 of 2010 Date: 03.02.2010 Between : The State of A.P., rep.by the Public Prosecutor, High Court of A.P., Hyderabad. … Appellant. And Kyatham Ashok and another. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.214 of 2010 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor appearing for the appellant- State. 2. Appellant is the State and respondents are accused in the Sessions Case. 3. This Criminal Appeal, by the State, under Section 378 (3) and (1) of Cr.P.C., is directed against the judgment, dated 06.03.2006, in Sessions Case No.597 of 2004, passed by the IV Additional District and Sessions Judge (Fast Track Court), Karimnagar acquitting Accused Nos.1 and 2 for the offences punishable under Sections 302 and 201 read with Section 34 of Indian Penal Code (for brevity “IPC”). 4. The case of the prosecution, in brief, is that on 18.1.2002 at about 18-00 hours, P.W.1, who is the wife of the deceased-Akula Veera Swamy, lodged a complaint in Jammikunta Police Station stating that her husband was involved in financial dealings with Accused No.1, that on 13.1.2001, A.1 had borrowed Rs.1,00,000- from the deceased, but he could not repay the same, that on 6.1.2001, A.1 took her husband on his scooter to bye goats for the purpose of his niece’s marriage and since then her husband did not return home, that when she asked about her husband, A.1 did not give any information about her husband. She further complained that A.1 came to the house and enquired for her husband and told her that he paid back Rs.1,00,000/- to her husband and also it appears that the complaint was to the effect that certain transactions made subsequently and on that they are suspecting some foul play by the accused. Basing on the said complaint P.W.14 registered a case in Crime No.3 of 2002 as ‘Man Missing’ and apprehended A.1 and A.2 on 19.1.2002 and on interrogation, the accused admitted the commission of offence. After recovery of dead body of the deceased, P.W.16 altered the section of law from ‘Man Missing’ to Sections 302 and 201 IPC. After completion of investigation and necessary formalities, P.W.17 C.I. of Police laid the charge sheet for the offence under Sections 302 and 201 read with Section 34 IPC against A.1, and Section 302 read with Section 34 and Section 201 read with Section 34 IPC against A.2. 5. When the charges were read over and explained to the accused, they pleaded not guilty and claim to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P-41, besides marking MOs.1 to 10 material objects. On behalf of the accused, D.W.1 was examined and Ex.D.1 News item published on 19.1.2002 in Eenadu District Edition was marked. 7. The trial Court, having considered the entire material including the evidence, both oral and documentary, available on record, found both the accused not guilty of the offences with which they were charged and accordingly acquitted them of the said charges. Aggrieved by the same, the State has preferred the present criminal appeal. 8. The learned Public Prosecutor contended that the though P.Ws.1 to 4 categorically deposed that A.1 took the deceased along with him to purchase goats for the purpose of his niece’s marriage and since then he did not return back, the trial Court disbelieved their evidence. He also contended that though the prosecution proved the motive on the part of the accused for killing the deceased, the trial Court did not consider the same and passed the order of acquittal of the accused. Therefore, he sought to set aside the impugned judgment of the trial Court. 9. Now, the point that arises for consideration in this criminal appeal is whether the Court below was right in appreciating the evidence on record before arriving at a conclusion that the accused are not guilty of the offences with which they were charged? 10. It is to be seen that P.W.1, wife of the deceased, is the prime witness and the entire case of the prosecution rests upon the circumstantial evidence. 11. As could be seen from the impugned judgment of the trial Court P.Ws.1 to 4, who spoke about the money transaction between the deceased and A.1, raised only suspicion of some foul play by the accused and on that they filed the complaint. But the trail Court pointed out that there is no consistency in the evidence of these witnesses as regards filing of the complaint before the police. 12. During the course of evidence, certain facts were revealed by the witnesses, particularly that of P.Ws.11 and 12, who are mediators for recording the confession of the accused. Both these witnesses i.e., P.Ws.11 and 12 deposed that by the time they went to the Police Station upon being summoned by the police, both the accused were already present there and confessed about the commission of offence and at the instance of the accused, the dead body was recovered. 13. It is an undisputed fact that the dead body was found by the side of main road, which is at a distance of 100 meters away from the main road, and as per the evidence of P.W.16, who held inquest over the dead body of the deceased, there is a small path way by the side of the dead body. Therefore, the trial Court pointed out that it cannot be presumed that the place of dead body is in the exclusive knowledge of the accused and on the contrary the dead body was accessible to the common public and, therefore, it cannot be presumed that the dead body was discovered at the instance of the accused. 14. Further, as per the medical evidence of P.W.15 doctor, who held autopsy over the dead body of the deceased, what could be retrieved was only few bones, like skull, mandible, femur, humurus, ribs and one piece of thigh muscles of the deceased. The most intriguing aspect in this case is that notwithstanding the retrieval of the bone, allegedly belonging to the deceased, no identification was admitted to have been made in order to show that those bones actually belongs to the deceased. In order to identify that the said bones belongs to the deceased, no scientific method, at least, was resorted to. In the absence of such an attempt being made, it is difficult for the Court to believe that the retrieved bones, allegedly belonging to the deceased, do actually belongs to the deceased. In other words, when there was no categorical identification of the dead body of the deceased by the retrieval of some bones, of course at the instance of the accused, it is difficult for the Court to arrive at a definite conclusion that the accused alone are responsible for the death of the deceased. 15. Further more, in the instant case, the alleged confession statements, to the extent it is permissible under law, in normal course, cannot be totally relied on as a substantive piece of evidence in order to connect the accused with the offences with which they were charged. Hence, the trial Court has rightly given the benefit of doubt to the accused. 16. Therefore, the reasons assigned by the trial Court, while arriving at the conclusion that the prosecution failed to prove the guilt of the accused for the offences with which they were charged, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. We do not find any irrationality or misappreciation of evidence in the judgment rendered by the trial Court. 17. For the foregoing, we see no merits in the criminal appeal and the same is liable to be dismissed. 18. In the result, the criminal appeal is dismissed, at the stage of admission, confirming the judgment, dated 06.03.2006, in Sessions Case No.597 of 2004, passed by the trial Court. _________________________ JUSTICE D.S.R.VARMA ______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 03.02.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.214 of 2010 03.02.2010 (Msr)