THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.1215 of 2006 Date: 12-10-2009 Between Kanapaka Krishna … Appellant/Sole Accused and State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of Andhra Pradesh … Respondent/Complainant THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.1215 of 2006 Judgment: (per R.Kantha Rao, J.) This appeal is directed against the judgment dated 17-5-2006 passed by the III Additional Sessions Judge (Fast Track Court), Bhimavaram, West Godavari district in Sessions Case No.193 of 2004, whereby and whereunder the appellant (sole accused) was convicted for the offences punishable under Sections 302 and 201 of IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.100/-, in default to undergo simple imprisonment for a period of one month for the offence under Section 302 of IPC; and further sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.100/-, in default to undergo simple imprisonment for a period of one month for the offence under Section 201 IPC. Challenging the said order of conviction and sentences, the accused preferred the present appeal. 2. The brief facts that are necessary for considering the appeal, according to the prosecution, may be stated as follows: (a) The accused is a native of Lumburu village in Palakonda Mandal of Srikakulam district and one Suryanarayana (hereinafter referred to as ‘the deceased’) is a native of a village in Gudivada Taluq of Krishna district, both are coolies and they came to Kolamuru village in West Godavari district in search of cooli work and joined as coolies under P.W.5-Kunaparaju Krishnam Raju, who provided them shelter in the thatched cattle- shed of P.W.6-Pericherla Padmanabha Raju, which is situate by the side of Bhimavaram and Ganapavaram B.T. Road in Kolamuru village. Both the appellant and the deceased were staying there and were attending to cooli work. On 05-6-2003 at about 11.30 p.m., an altercation ensued between them during the course of which, the appellant grew wild against the deceased and quarrelled with him. The said incident was witnessed by P.W.2- Namburi Sai Ramakrishnam Raju and he pacified the matter. However, the appellant bore grudge against the deceased and determined to kill him. Thereafter, he procured a stout-stick known as ‘Vasikarra’ beat the deceased indiscriminately on the head with the said implement caused multiple fractures on the head due to which, the deceased fell down unconscious. The appellant left the place of occurrence and subsequently, on 06-6-2003 at about 6 a.m., the appellant having returned to the place of occurrence found the deceased dead, carried the dead body to the Hindu burial ground situate by the side of the R & B road, buried the same in a pit and covered it with earth partially. P.Ws.2 and 3 witnessed the appellant burying the dead body in the burial ground and on seeing them, the appellant absconded from the village of Kolamuru. (b) Upon receiving information about the burial of dead body of an unknown person, P.W.1 the Panchayat Secretary, Kolamuru village lodged a report Ex.P-25 with P.W.14-Assistant Sub Inspector of Police, Undi Police Station, who registered the same as a case in Crime No.81 of 2003 for an offence punishable under Section 174 of Cr.P.C. Subsequently, the Police arrived at the scene of offence, caused the dead body of deceased exhumed, got conducted inquest over the dead body of deceased through P.W.15-Mandal Revenue Officer and Mandal Executive Magistrate, Undi as well as post-mortem examination through the doctors P.W.12- Dr. T.Chandra Rao and L.W.16-Dr. P.V. Swarajya Lakshmi. P.W.12, the Inspector of Police, Bhimavaram Rural conducted investigation and after completing the investigation, he filed charge-sheet against the accused. (c) The prosecution, in order to establish the guilt of the accused before the learned trial Court, examined P.Ws.1 to 17, marked Exs.P-1 to P-36 and M.Os.1 to 10. On behalf of defence, none was examined but Ex.D-1 was marked. (d) The learned trial Court, on a consideration of the entire evidence available on record, convicted the appellant for the offences under Sections 302 and 201 of IPC and sentenced him to punishment, as mentioned above. 3. We have heard Ms. Naseeb Afshan, learned Counsel for the appellant-accused and the learned Public Prosecutor for the respondent-State. 4. The learned Counsel for the appellant would submit that the evidence on record does not indicate commission of an offence punishable under Section 302 of IPC against the accused and also that the material on record does not warrant any conviction against the accused for the offence under Section 201 of IPC and she seeks to set aside the conviction and sentences passed against the appellant. 5. On the other hand, the learned Public Prosecutor would submit that in this case, the prosecution has proved its case by establishing the circumstances relied upon by it, the death of the deceased was homicidal and all the circumstances clearly indicate that the accused committed the murder of deceased and that the learned trial Court is justified in convicting the accused for the said offences. 6. Now, the point for determination in this appeal is -- whether the order of conviction and sentences passed by the learned trial Court against the appellant can be sustained ? 7. Point :- The learned trial Court mainly rested the conviction on the alleged extra judicial confession supposed to have been made by the appellant to P.W.1, the Panchayat Secretary, Kolamuru village; the evidence of P.Ws.2 and 3, who claimed to have seen the appellant at the burial ground and also the recovery of M.Os.4 to 7 in pursuance of the alleged disclosure statement made by the appellant to the Investigating Officer P.W.17 in the presence of P.W.1 and others. 8. There being no eyewitnesses to the occurrence, the prosecution based its case on the circumstantial evidence. Undoubtedly, as per the evidence of P.W.12 the autopsy surgeon, who noticed multiple fractures on the head of the deceased on conducting post-mortem examination, there is no dispute about the fact that the death of the deceased was homicidal. P.Ws.2 and 3 stated in their depositions before the learned trial Court that they saw the accused carrying the dead body on his shoulder to the burial ground as well as covering the dead body with earth after placing it in a pit. But, if we examine the evidence of these two witnesses as well as P.Ws.4 to 6, no credence can be given to the evidence of P.Ws.2 and 3. P.W.8 had categorically deposed that if one stands on the R & B road, which is adjacent to the burial ground, the happenings in the burial ground could not be seen since the entire burial ground is covered with bushes. If that is so, it is most unlikely that P.Ws.2 and 3 found the appellant covering the dead body with earth on the burial ground. 9. Further, the evidence of the witnesses is also at variance on the aspect as to how actually P.W.1 received information about the existence of the dead body in the burial ground. The version of P.Ws.2, 3 and 5 is that P.Ws.2 and 3 informed about the existence of the dead body in the burial ground to P.W.5, who, in turn informed the same to P.W.4 and ultimately, P.W.4 informed P.W.1 about the same. However, the evidence of P.W.7 demolishes the entire version of all these witnesses. He stated in the chief-examination itself that he, P.Ws.1 and 4 and L.W.10 M.Mutyalu were present at the Panchayat office at about 10.30 or 11 a.m., on 06-6-2003 and one person came to the Panchayat office and informed P.W.1 that a person died in the cattle-shed and he was buried in the burial ground and thereafter, they went to the burial ground and on the directions of P.W.1, P.W.7 removed the earth and P.W.1 posted P.W.7 as a guard to the dead body along with L.W.10. Thus, the version of P.W.7 falsifies not only the evidence of P.Ws.2 to 5 but also P.W.1 on the aspect as to how actually P.W.1 received information about the existence of the dead body in the burial ground. The situation ultimately leads to the conclusion that it is quite unsafe to rely on the testimony of P.Ws.2 and 3, who stated that they saw the appellant carrying the dead body as well as covering the same with earth at the burial ground. The reason being, had the said fact been true, P.W.1 would have certainly mentioned it in the report Ex.P-25 lodged by him with the Police. But, he did not mention the same in the said report. 10. The theory that the appellant and the deceased consumed brandy in the cattle-shed of P.W.6 during the course of which, an altercation took place and in the said altercation, the appellant beat the deceased with a stout- stick on the head, entirely based on the alleged extra judicial confession said to have been made by the appellant to P.W.1. However, as rightly pointed out by the learned Counsel for the appellant, the said confession was made after the appellant was arrested by the Police and while he was in the custody of the Police and therefore, it is not admissible in evidence against the appellant. 11. Another significant point to be noticed is that according to P.W.5, he took the cattle-shed of P.W.6 on lease and gave it to the appellant and the deceased as residence, but P.W.6 specifically deposed before the learned trial Court that he did not lease out his cattle-shed to P.W.5 or to anyone and no one was living in the cattle-shed at the relevant point of time. Therefore, the happening of the incident at the cattle-shed of P.W.6 is also very much in doubt and not satisfactorily proved by the prosecution by convincing evidence. In the examination under Section 313 of Cr.P.C., the appellant had specifically stated before the learned trial Court in detail that after he was arrested by the Police, he was brought to the Panchayat office and pressurized by the elders of the village, some of whom are the witnesses in the present case, to confess the guilt, but he did not agree. In the light of what was stated by the appellant in the examination under Section 313 of Cr.P.C., if the credibility of the abovementioned investigation by the Police is examined, the recovery of M.Os.4 to 7, basing on the disclosure statement made by the appellant also becomes undependable since from the time of the alleged arrest of the appellant, he was with the Police and the same witnesses i.e., P.W.1, L.W.10 and others, and the said recovery though had been spoken to by P.W.1 and P.W.17 the Investigating Officer, it does not inspire our confidence. 12. Thus, ultimately the entire evidence of the prosecution witnesses appears to us to be artificial and unbelievable. It is quite unsafe to rest conviction basing on such evidence and the learned trial Court had fallen into an error in convicting the appellant basing on such evidence. The said conviction and sentences passed by the learned trial Court are, in our view, liable to be set aside in this appeal. 1 3 . In the result, the order of conviction and sentence passed by the learned III Additional Sessions Judge (Fast Track Court), Bhimavaram, West Godavari district, dated 17-5-2006, against the appellant-sole accused is set aside and he is acquitted. The appellant, who is now undergoing jail sentence in the present case, shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. The appeal is allowed. _________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 12th October, 2009. Ak