HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.657 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is arising out of the conviction and sentence imposed by the learned Additional Metropolitan Sessions Judge for the trial of Communal Offence Cases – cum – VII Additional Metropolitan Sessions Judge, Hyderabad, through his judgment dated 07-05-2007 in Sessions Case No.51 of 2007, convicting the appellant – accused for an offence punishable under Section 302 IPC. 2. The facts, in brief, are as follows: On the intervening night of 19/20-05-2006 at about 1-00 or 1-30 AM, on the footpath in front of Bhoteshwar Jewellery Shop, Subash Road, Secunderabad, there was a quarrel between the deceased and the accused and in the said quarrel, the accused beat on the head of the deceased with a stick MO.1. On noticing that, PW-1 Police Constable, who was on sentry duty went there and on seeing him, accused ran away with the stick from there. Thereafter, PW-1 shifted the deceased to the Gandhi hospital for treatment. On 20-05-2006 one P.Ramulu lodged a complaint with the Mahankali Police and the police registered a case in Crime No.130 of 2006 against the accused for the offence punishable under Section 324 IPC. Later, on receiving the intimation about the death of the deceased from the Gandhi Hospital, the Investigating altered the Section of law to 302 IPC from 324 IPC. Thereafter, the police held inquest over the dead body and seized MOs.4 and 5. PW-6 Dr. Vikramaditya conducted post mortem over the dead body of the deceased and noticed as many as nine injuries and issued post mortem certificate opining cause of death was due to head injury. On 21-05-2006 at 4-30 PM, the Inspector of Police arrested the accused and seized MO.1 and MO.3 and sent the MOs to Forensic Science Laboratory during the course of investigation. After receipt of report from the Forensic Science Laboratory, the Investigating Officer laid charge sheet against the accused for the offence punishable under Section 302 IPC. 3. To substantiate the case of the prosecution, total 8 witnesses were examined and 9 exhibits were marked and MOs.1 to 5 were also marked by the prosecution. 4. PW-1 Police Constable deposed before the Court below that he was informed by the complainant, who was not examined by the prosecution, that there was a galata wherein, the appellant – accused caused injury to the deceased. PW-2 sister of the deceased, who is not an eye witness to the incident, stated that she enquired about the incident and witnessed the deceased in the hospital. PW-3 mediator for the inquest, gave opinion that the deceased died on account of head injury. The other witnesses are official witnesses and mediators. The doctor, who conducted post mortem on the dead body of the deceased, was examined on behalf of the prosecution and he informed the Court the following injuries: 1. Sutured wound in the occipital parietal scalp 3 x 1 cm. 2. Sutured wound above the left eye brow 5 x 1 cm. 3. Sutured wound behind the left ear lobe 3 x 1 cm. 4. Contused abrasion left temp. parietal scalp 24 x 20 cm. 5. Fracture of the temporal and parietal bones of the scalp; 6. Extra dural haemotoma 6 x 4 left frontal temporal area of brain; 7. Base of the skull temporo-parietal fracture; 8. Left index finger laceration 1 x 1 cm. 9. Back of the abdomen, abrasion 2 x 1 cm. 5. The learned Sessions Judge, after considering the entire evidence adduced by the prosecution, convicted the accused for the offence punishable under Section 302 IPC. 6. Learned counsel for the appellant submits that the complainant, who gave the complaint, was not examined by the prosecution, and there is no explanation for non examination of the said witness, who is present and can identify the accused, who involved in the crime. As far as the evidence of PW-1 is concerned, he categorically admits in the cross-examination that he has not informed the Investigating Officer that he can identify the accused and also has not informed that he knew the accused even prior to the occurrence and further submitted that an unknown person was identified by the witness for the first time in the Court, which cannot be taken into account to confirm the conviction and sentence for the offence under Section 302 IPC against the accused. Apart from that, the same was supported by the evidence of the Investigation Officer who was categorically admitted the fact that PW-1 has not stated before him at the time of examination that he could identify the accused who involved in the crime. 7. Therefore, in the absence of any other eyewitness to the occurrence, this Court is of the view that it is not safe to convict the accused for the offence under Section 302 IPC, which is punishable with minimum sentence of life imprisonment. Inspite of the above, there is no correct link between the crime and the person who committed the same. Hence, the judgment impugned is liable to be interfered with and accordingly, the conviction and sentence imposed by the Court below is hereby set aside. 8. Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded by the Additional Metropolitan Sessions Judge for the trial of Communal Offence Cases - cum – VII Additional Metropolitan Sessions Judge, Hyderabad in Sessions Case No.51 of 2007, dated 07-05-2007 against the appellant - accused for the offence punishable under Section 302 IPC is set aside. The accused shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him. _______________ A.GOPAL REDDY,J October 26, 2010. ______________ RAJA ELANGO, J KTL