HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1168 OF 2007 Dated:19-04-2011 BETWEEN: Arka Rama Rao @ Ramu and another …Appellants AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1168 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellants-A.1 and A.2 were put on trial for the offences under Sections 302 and 201 I.P.C. read with 34 I.P.C. in S.C.No.131 of 2007 n the file of II Additional Sessions Judge (Fast Track Court) at Adilabad. By judgment, dated 27.7.2007 they were convicted for the said offences and were sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default to undergo simple imprisonment for two months for the offence under Section 302 I.P.C. and they were also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- each, in default to undergo simple imprisonment for one month for the offence under Section 201 r/ 34 I.P.C. 2. The story of the prosecution as narrated during the course of trial is as under: One Garku Sayanna-P.W.1, Ex-Sarpanch of Chincholi (B) Village, on the information received from Gangaram-P.W.3 about his finding an unknown dead body in the fields of Narayana Swamy, set the criminal law into motion by lodging Ex.P.1 report with the police. On receipt of Ex.P.1 on 13.11.2005, P.W.8-Sub-Inspector of Police registered a case in Crime No.91 of 2005 under Section 174 Cr.P.C. and after recording the statement of P.W.1, he visited the scene of offence and conducted panchanama at the scene of offence in the presence of P.W.15 and got the scene of offence photographed through P.W.16. He seized M.Os. 1 to 8 at the scene of offence and sent requisition to the doctor for conducting post-mortem examination. P.W.20-doctor conducted post-mortem examination on the dead body of the deceased. As the dead body was not identified, P.W.18-Sub- Inspector of Police got published the photograph of deceased in the newspaper and on the same day, he examined P.Ws.2,3 and others and recorded their statements. On 14.11.2005, P.W.4-the wife of deceased went to Sarangapur police station along with P.Ws.5 and 6 and identified the clothes of the deceased and their statements were recorded by the police. After receiving the post-mortem examination report-Ex.P.25, police altered the section of law into Sections 302 and 201 read with 34 I.P.C. P.W.19-Circle Inspector took up investigation on 18.11.2005 and examined P.Ws.4, 8 to 14 and others. He arrested the accused on 2.11.2005 and recorded their confessional statements under Exs.P.16 and 17 in the presence of P.W.17 and another. After receiving the relevant documents and after completion of investigation, he laid the charge sheet against the accused stating that the deceased-Hanmanthu, husband of P.W.4 is the resident of Chincholi village. Accused 1 and 2 are cousin brothers of P.W.4 and they are residents of Mediguda village. The deceased and accused were having grudges over each other in regard to the land disputes. Since six months, the deceased and his wife and A.1 were residing in Nirmal by attending to hamali work and A.2 was residing in Perkit village which is 35 k.m. away from Nirmal. On 30.10.2005 P.W.12 approached A.1 and asked him to shift his pan thela from old bus stand to Kabuthar Kaman and fixed the hire amount as Rs.500/- and A.1 took an amount of Rs.50/- from P.W.12 as advance. In the meanwhile, on 31.10.2005 the deceased along with P.W.13 had shifted the said pan thela of P.W.12 to the old bus stand and took Rs.450/- from him. On coming to know about the same, A.1 picked up quarrel with the deceased in which, the deceased warned A.1. For that A.1 bore grudge against the deceased and he went to Perkit and met A.2 and requested him to assist him in killing the deceased. Both the accused came to Nirmal and sent their wives and the wife of the deceased along with the children to their native village for Deepavali festival by informing them that they would come to the festival later. On 1.11.2005 at about 8.00 p.m. the accused took the deceased to the toddy shop at Nirmal and consumed toddy and thereafter went to Dhaba situated at Chincholi (B) X road and further consumed liquor and had meals supplied by P.W.14. Subsequently, the accused took the deceased to the nearby bushes and beat him with hands and boulder on chest and head resulting the death of the deceased. Thereafter the accused left the dead body nearby bushes near to the fields of P.W.7. When the charges were read over and explained in Telugu to the accused, they denied the same and claimed to be tried. 3. To substantiate the case of the prosecution, P.Ws.1 to 20 were examined and Exs.P.1 to P.26 were marked besides material objects 1 to 14. On behalf of defence, no oral evidence was adduced but the portion of 161 Cr.P.C. statement of P.W.4 was marked as Ex.D.1. 4. The learned Sessions Judge after appreciation of oral and documentary evidence adduced, came to the conclusion that the prosecution proved the guilt of the accused beyond all reasonable doubt and convicted and sentenced them as aforementioned. 5. We have heard the learned counsel appearing for the appellants and learned Public Prosecutor, who have taken us through the entire evidence on record and also the findings recorded by the lower Court. 6. In the case on hand, there is no direct eyewitnesses to the incident and the entire case rests upon the circumstantial evidence. It is now fairly well settled that when the case rests upon the circumstantial evidence, the following conditions must be fulfilled as held by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622): (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. While laying down the above conditions, the Supreme Court further held that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 7. Keeping the above principles in mind, we shall now examine the evidence adduced by the prosecution. P.W.1 is not an eyewitness to the incident. He set the criminal law into motion by lodging Ex.P.1 with the police on receipt of information from P.W.3 about his noticing an unknown dead body lying in the fields of P.W.7 in a decomposed state. P.W.2 is a witness who also came to know that the dead body was lying in the fields of P.W.7. He along with L.Ws.2,4 and 5 went to the place and saw the dead body and in the meanwhile P.W.1 came to the spot along with Sub-Inspector of Police, but the dead body could not be identified. P.W.3 speaks about his noticing unknown dead body when he had taken his goats to the fields of P.W.7. He intimated the same to P.W.1. P.W.4 is an important witness. She deposed that both the accused are sons of her junior paternal uncle. The deceased was her husband. Her father had got two brothers and that her father and his brothers owned about 15 acres of land, which was not divided by them. On the death of her father, her paternal uncles had not given any land to her and therefore, her husband demanded her paternal uncles to give some piece of land to him for cultivation but they refused to do so. Herself and her deceased-husband used to live by doing coolie work. A.1 used to reside in Nirmal and A.2 used to reside in a different village. About more than one year ago, her husband sent her and the accused sent their wives to their native village for Deepawali festival with a promise to join them later. Herself and the wives of both the accused went to Mediguda Village. In the evening time both the accused attended to their village but her husband did not come there. When she asked both the accused as to what had happened to her husband, they informed her that her husband did not return home as he went to Malkapuram or Chincholi village. Thereafter she searched for her husband, but she could not trace him. About 10 or 15 days thereafter, when she approached Sarangapur police station, the police shown some clothes and on seeing those clothes, she identified them as that of her husband. Then police informed her that one dead body was found near one Dhaba hotel at Chincholi village. She deposed that the accused might have killed her husband as he was demanding them for a share in the land. She admitted that she deposed before the police that her brother gave one acre of land to her and added that the deceased demanded for equal share. P.W.8 stated that one day after Deepavali festival-2005, P.W.4 came to him and informed that her husband had not come home and he was missing. Two days thereafter, police gave a paper publication saying that one unknown dead body was found in the fields of Chincholi village. Later P.W.4 went to the police station and identified the clothes as belonged to her husband and she suspected that the accused might have killed her husband. P.W.9 is the witness in whose presence both the accused said to have confessed as to why and how they had killed the deceased. P.W.14, a worker in the dhaba hotel in Chincholi (B) village stated that on Deepavali festival day at about 8 or 8.15 p.m. three persons came to their hotel and identified both the accused in the court. He deposed that the accused and other person had brought cheep liquor packets along with them, they ordered for chicken, that the third person had consumed liquor fully and he fell down there. The accused had also consumed liquor but they were under control. At 9.30 p.m. the hotel was closed and both the accused had taken the third person who fell down there, along with them by putting his hands on their shoulders by lifting him. It is curious to note that no photograph of the deceased was shown to P.W.14 to identify that the third person who accompanied the accused was that of the deceased. P.W.17 is the person in whose presence both the accused confessed about their killing the deceased. He deposed that in pursuance of their confessional statement, both the accused had taken them along with the police party to the place where they killed the deceased and shown the boulder with which they killed the deceased. They also stated about their keeping the bloodstained clothes in a well situated nearby the market office. They have tied a rope to A.1 and asked him to get into the well and he went inside the well and brought the bloodstained clothes of both the accused. P.W.18 is the Sub- Inspector of Police who registered the crime on 13.11.2005. He stated that he conducted the panchanama at the scene of offence in the presence of P.W.15 and L.W.26. He found the bloodstained big boulder and he conducted the inquest over the dead body of the deceased and prepared the rough sketch under Ex.P.21. He altered the section of law from 174 Cr.P.C. to Sections 302 and 201 I.P.C. He admitted that P.W.4 stated before him that both the accused and her husband sent their wives on the previous evening and both the accused came to their village on the next day morning i.e. on 1.11.2005. P.W.19 took up the investigation, arrested both the accused on 22.11.2005 and on the confession made by them, he recovered M.Os.11 to 14 under Ex.P.26- confession statement. He admitted that P.W.4 stated that on the next day morning of Deepavali both the accused returned to their village, but P.W.5 stated in his statement before P.W.18 that both the accused came to their village on Deepavali day but the deceased did not come. P.W.20 is the doctor who conducted post-mortem examination over the dead body of the deceased and issued Ex.P.26 final opinion. He opined that the death of the deceased must have occurred between 3rd to 9th November, 2005 but the exact date could not be given. 8. From the evidence as extracted above, except the evidence of P.W.4, who stated that the accused and deceased asked their wives to go to their native village informing that they would join later, and the evidence of P.W.14 who saw the accused consuming liquor with a third person in the Dhaba on the Deepavali festival day, there is no other evidence to show that the accused were last seen in the company of the deceased. The chain of evidence is not complete to connect the accused with the commission of the offence. P.W.8 deposed that one day after Deepavali festival, P.W.4 came and informed that her husband had not come to home and was missing. Two days thereafter, police gave a paper publication that an unknown dead body was found i.e. on the third or fourth day of the incident. But according to P.W.1, the dead body was found at Chincholi village on 13.11.2005 i.e. nearly after 14 days after the incident according to P.W.4. It is well settled that the motive by itself is not sufficient to prove the guilt of the accused. Mere proving that A.1 and A.2 had motive to kill the deceased as the deceased was demanding them a share in the landed property that itself is not sufficient to hold them that they have committed the offence. In the absence of any other evidence to connect the accused with the commission of offence, they cannot be held liable on mere recovery of bloodstained clothes of accused at their instance and on the confessional statements. Further the F.S.L. report under Ex.P.16 also indicate that the blood group of bloodstains on item Nos.1,6,8,9,12 and 13 could not be determined. Therefore, it is unsafe to convict the accused on the scanty evidence adduced by the prosecution. 9. In the result, the Criminal Appeal is allowed and the convictions and sentences imposed by II Additional Sessions Judge (Fast Track Court), Adilabad in S.C.No.131 of 2007, dated 27.7.2007 are hereby set aside. The appellants-A.1 and A.2 are found not guilty of the charges with which they stood charged and they are acquitted of the same. They shall be set at liberty forthwith, if they are not required in any other crime. The fine amount, if any, paid by the appellants- accused shall be refunded. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J APRIL 19, 2011 Tsr.