IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD WEDNESDAY, THE SIXTEENTH DAY OF SEPTEMBER, TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1756 OF 2001 BETWEEN: Laggoni Gopal S/o. Late Sathaiah …. Appellant/Accused NO.1 AND State of Andhra Pradesh, Rep. by Public Prosecutor …. Respondent/Complainant THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.1756 OF 2001 JUDGMENT: This Criminal Appeal is filed by the appellant / accused No.1 Laggoni Gopal, under Section 374 (2) of the Criminal Procedure Code (for short ‘Cr.P.C.) against the judgment dated 16-11-2001 in Sessions Case No.563 of 1999 passed by the learned II Additional District & Sessions Judge, Nalgonda, whereunder and whereby the appellant was found guilty of the offence punishable under Section 304 Part – II of the Indian Penal Code (for short ‘IPC’) and accordingly convicted and sentenced to suffer rigorous imprisonment for a period of five (5) years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for six (6) months. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: L. Bashaiah (hereinafter referred to as ‘deceased’) was a resident of Lingarajupally. The accused No.1 is none other than the younger brother of the deceased. PWs.1 to 3 are the sons and PW.16 is the wife of the deceased. Accused Nos.2 and 3 are the son and wife of Accused No.1 respectively. The deceased and A-1 were having an extent of Acs.3.00 of land. There was a common well to which an electric motor was fitted for the irrigation of the lands of both the deceased and A-1. Prior to the incident, A-1 and the deceased reside in one house but in separate portions. On 26-08-1998, at about 4-00 AM, A-1 woke up the deceased and both went to the agricultural field to start the electric pump set. At about 7-00 AM, on the same day, A-1 returned to the house and informed the family members that the deceased died due to electrocution. The family members of the deceased and others rushed to the agricultural fields and saw the dead body, which was at a distance of 4 yards from the borewell. They noticed bleeding injuries on the head of the deceased. The clothes of the deceased were also blood stained. Thereafter, the dead body was shifted to the house. A-1 removed the blood stained soil and threw it into the river by saying that if the dogs lipped the human blood, they will get the rabies. A-1 took away the blood stained clothes and burnt them, insisted the family members to cremate the body, though it was not their family custom and also stopped the family members of the deceased from giving police complaint. But, PW-1 along with the village elders went to the Police Station and lodged a complaint orally. PW.14, Sub Inspector of Police, Haliya, who worked as Sub Inspector of Police, Veligonda P.S. during 29-12-1996 to 21-09-1998 received the compliant Ex.P-1 at about 2-00 PM on 26-08-1998, registered a case in Crime No.41 of 1998, recorded the statement of PW.1 and thereafter, he went to the house of the deceased and conducted inquest over the dead body of the deceased in the presence of PW.12 Budige Mysaiah and others. He examined the witnesses and sent the dead body for post mortem examination. As there was no incriminating material at the scene of occurrence, the observation of the scene of occurrence was not recorded. PW.15 is the doctor, who conducted autopsy on the dead body of the deceased, opined that the deceased died due to head injury. PW.18, Circle Inspector of Police, took up further investigation and re-examined the witnesses. After the incident, accused Nos. 1, 2 and 3 were absconding from the village. On 17-09-1998, Police Constable apprehended the accused and produced them before PW.18. In pursuance to the confession statement given by the accused, the stick and iron-patty used in the commission of offence were seized. After completion of the investigation, the successor of PW.18 i.e. PW-17 filed the charge sheet against the accused. 3. The following charges were framed against the accused: “Firstly: That you A-1 to A-3 on 26-08-1998 at 7-00 hours at Lingarajupally village did commit murder by intentionally causing the death of Laggani Bashaiah by beating him with lathi and iron patty due to grudges about sharing the ancestral lands and water and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. Secondly: That you A-1 to A-3 on 26-08-1994 at 7-00 hours at Lingarajupally village knowing that the murder of the deceased Laggani Bashaiah has been committed by you, and you A-1 poured kerosene oil on the blood stained clothes of the deceased Lagani Bashaiah and set fire with an intention to disappear the evidence, with the intention of screening the said offenders from legal punishment and thereby committed an offence punishable under Section 201 of the Indian Penal Code and within my cognizance.” 4. When the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined PWs.1 to 18 and got marked Exs.P-1 to P-15, besides case properties MOs.1 and 2. On behalf of the accused, no oral evidence was adduced, but Exs.D-1 to D-4 were marked. 6. The trial Court after considering the evidence of the prosecution witnesses, found A-1 alone guilty of the offence punishable under Section 304 Part-II IPC and accordingly convicted and sentenced him as stated supra. However, A-2 and A-3 were found not guilty of the charges and acquitted them. Challenging his conviction, A-1 filed the present appeal. 7. The learned counsel appearing for the appellant – accused No.1 contended that there is absolutely no evidence to show that the appellant caused the head injury to the deceased, that there was absolutely no motive for the appellant to commit the murder of his own brother; that, some unknown assailant might have committed the murder in the wee hours of the day; that, as an electric wire was found touching the body of the deceased, the appellant thought that the deceased was died due to electrocution; and the said fact was informed to the relatives; that, the iron patty, allegedly seized at the instance of the appellant, does not contain any blood stains; that, it was not sent to Forensic Science Laboratory; that, the mere absconding of the appellant from the village is not a ground to infer that he participated in the commission of the offence; that, there was absolutely no evidence to show that the appellant committed an offence of culpable homicide, not amounting to murder and hence he prays to set aside the conviction and sentence recorded against the appellant. 8. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of PWs.1 to 3 and 16 would go to show that it is the appellant who took the deceased from the house to the fields at about 4-00 AM; that, the appellant is the person who returned to the house at 7-00 AM and informed about the death of the deceased; that, the death of the deceased was due to the head injury; that, in pursuance of the confessional statement of the appellant, iron patty MO1, used in the commission of the offence, was seized; that, the doctor also opined that the said weapon would cause the injuries found on the body of the deceased; that, after the incident, A-1 to A-3 were absconding from the village and therefore, all the circumstances would clearly go to show that the offence was committed by the appellant and none else, that the trial Court after elaborate consideration of evidence on record, rightly found him guilty and hence there are no grounds to interfere with the same. 9. Now the point for determination is whether the prosecution proved its case against the appellant beyond all reasonable doubt of the offences with which he was convicted ? 10. There is no direct evidence to show that the appellant was the assailant of the deceased. The entire case rests upon the circumstantial evidence. When a case rests solely on circumstantial evidence, such evidence has to satisfy the following tests as laid down by the Apex Court in a decision reported in PADALA VEERA REDDY V. STATE OF ANDHRA PRADESH & OTHERS [1], wherein it was held that: “ 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogent and firmly established. 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 11. Bearing the above principles in mind, it has to be seen whether the appellant is the assailant of the deceased and whether he committed an offence punishable under Section 304 Part - II IPC. 12. PW.12 is one of the mediators when PW.14 conducted inquest on the dead body of the deceased. The inquest mediators opined that the cause of the death was due to injuries on the head. 13. PW.15 is the doctor, who conducted autopsy over the dead body of the deceased on 27-08-1998, and found the following antimortem external injuries: 1. Lacerated wound 4 ½ x1/x ½ cms. fronto Perietal region (L) side. 2. Lacerated wound 3 ½ x ½ x ½ cms. Fronto perietal region (R) side. 3. Lacerated would 4x1x ½ cms. Occipital region. 4. Lacerated wound 4x ½ x1 cm. (L) Perietal region. 5. Abrasion 1x ½” (L) leg. He also found the following Internal injuries: 1. Haemotoma (R) Temporal region 3x2 cms. 2. Sub-Dural Haemotoma (R) perietal region 4x1x2 cm. 3. Fracture fronto perietal bone (R) Side. 4. Fracture (R) Temporal bone. 14. He opined that these injuries might have been caused with blunt weapons like MOs.1 and 2. According to PW.15, the deceased died due to head injury. Ex.P-14 is the postmortem certificate. Ex.P- 15 is the opinion of the doctor. Therefore, from the evidence of PW.15 and the recitals in Ex.P-14, it is established beyond all reasonable doubt, that the death of the deceased is homicidal in nature. 15. PWs.1 to 3 are the sons and PW.16 is the wife of the deceased respectively. The appellant and the deceased are the brothers, who were having an extent of Ac.3.00 of land. They were doing cultivation separately prior to the incident. To irrigate the fields, there is one common bore well fitted with electric motor and both the appellant and the deceased went to the agricultural field on 26-08- 1998 at about 4-00 AM to water the fields. When PWs.1 to 3, 16 and others went to the scene of occurrence, they found the dead body of the deceased with bleeding injuries and blood was oozing out from the back of the head of the deceased, causing blood stains over the sandy earth. The field of the appellant and the deceased is located at a distance of 1 KM from their house. It is on record that at about 7-00 AM, it is the appellant who rushed to the house and informed about the death of the deceased to PWs.1 to 3 and other family members. 16. There is absolutely no evidence to show that the deceased was in the company of the appellant just prior to the incident or immediately after the incident near the motor pump. PWs.1 to 3 and 16 did not speak about any motive for the appellant to commit the murder of his own brother. No doubt, motive is not an integral part of the crime. But, when a case rests upon the circumstantial evidence, motive has to be looked into. The absence of motive or non-proof of motive by itself is not a ground to disbelieve the evidence. If the other circumstances clinchingly prove the case beyond all reasonable doubt to show that the appellant was the assailant of the deceased, then motive loses its significance. According to the prosecution, the accused gave false information stating that the deceased died due to electrocution. Because an electric wire was found touching the body of the deceased, the appellant might be under an impression that the deceased died due to electrocution. There is evidence on record, which would go to show that the blood stained clothes of the deceased were burnt by litting fire by the appellant. Similarly, the appellant removed the blood stained sand earth and merged the same in the stream. It is also in the evidence that the appellant advised PWs.1 to 3 and 16 not to give any complaint to police and also insisted them to cremate the dead body, though it was not the family custom. The family custom is to burry the body. It is also in the evidence that A-1 to A-3 absconded from the village after the incident. 17. From these circumstances, can it be said that the appellant was the assailant of the deceased? There is absolutely no evidence to show whether the appellant committed the murder without pre- meditation, in a sudden fight in a heat of passion, upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner and there is also no evidence to show that there was a fight between the appellant and the deceased and in that sudden fight, the accused took out the iron patty and caused injuries on the head, in the heat of passion. 18. The trial Court has not placed any reliance on the evidence of PW.4, who is the owner of the adjacent lands of the deceased and the appellant. According to him, A-1 came to him and informed that his brother died. His evidence does not incriminate anything against the accused. The trial court only relied on the evidence of PW-5, who is also the owner of the adjacent lands of the deceased and appellant. His evidence would go to show that at about 5-00 AM, while he was watching the water to the paddy field, he heard the words of the deceased as “chastira Gopal” at a distance of 20 to 25 yards. At that time, there was dusk and the field of the appellant and the deceased was not visible. About one hour thereafter, A-1 came and enquired him about his brother. Within five minutes thereafter, A-1 raised his voice stating that his brother died. Even the evidence of PW.5 does not incriminate anything against the accused. If, really the appellant was the assailant of the deceased, the deceased would have stated, by raising his voice, that the appellant beat him. The words “Chatira Gopal” also gave an impression that giving information to his brother after receipt of injuries. If the evidence of PW.5 is to be accepted as true and correct, it does not lead to an irresistible conclusion that the appellant was the assailant of the deceased. 19. PW-6, who is the son-in-law of the deceased, stated that there were disputes and differences between the deceased and the appellant with regard to sharing of water from joint electric pump set. But that was not the case of PWs.1 to 3 and 16. If there were any differences between the appellant and the deceased, the appellant would not have gone to the house of the deceased and took him to the well. But, the conduct of the appellant in causing disappearance of blood stained sand and merging the same in the stream, burning the blood stained clothes of the deceased and giving false information that the deceased died due to electrocution and absconding from the village after the incident, give rise to a suspicion that the crime might have been committed by the appellant. But, suspicion however strong, cannot take the place of legal proof. Therefore, there is suspicion against the appellant that he might have caused the injuries. But, that suspicion is not sufficient to convict the appellant, especially when there is no evidence at all to show that in a sudden fight upon a sudden quarrel, the appellant caused injuries without taking any undue advantage. Therefore, the prosecution failed to establish the guilt of the appellant beyond all reasonable doubt. 20. The trial Court found the appellant guilty basing on surmises and conjectures. Surmises and conjectures have no role to play in criminal trial. Having found the appellants 2 and 3 not guilty of the charge levelled against them, that benefit should have been extended to the appellant also. In any view of the matter, the circumstantial evidence adduced by the prosecution is not sufficient to base the conviction against the appellant. Hence, the conviction and sentence recorded against the appellant are liable to be set aside. 21. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the II Additional District & Sessions Judge, Nalgonda against the appellant – A-1 of the offence punishable under Section 304 Part-II IPC in Sessions Case No.563 of 1999, dated 16-11-2001. The appellant – A-1 is found not guilty of the offence punishable under Section 304 Part – II IPC and accordingly he is acquitted. Bail bonds of the appellant – A-1 shall stand cancelled. Fine amount, if any, paid by the appellant – A-1 shall be returned to him. _____________ K.C. BHANU, J SEPTEMBER 16, 2009. KTL [1] AIR 1990 Supreme Court 79