IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD Monday, The 19th Day Of July, Two Thousand And Ten PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.341 of 2007 Between: A.Srinivas … Appellant/accused And State of A.P., Represented by Public Prosecutor. … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.341 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by the appellant/sole accused against the Judgment, dated 15.11.2006, in Sessions Case No.130 of 2006 on the file of the IV Additional District & Sessions Judge, (Fast Track Court), Siddipet, whereunder and whereby, the appellant was convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and also to pay fine of Rs.500/-, in default, to undergo simple imprisonment for a period of one month. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: The accused is the son of Durgavva (hereinafter referred to as “the deceased”). Since the deceased developed illicit intimacy with one Mallesham, the accused warned her to discontinue the same, but she did not agree. So the accused has decided to kill the deceased. On 12.09.2004 at 9.00 A.M., the accused went to his mother’s house at Mirdoddi village. The accused brought three toddy bottles. Since the deceased did not agree to discontinue her illicit intimacy, the accused pushed the deceased, as a result she fell down on the ground. The accused picked up an axe lying there and axed on her neck three times and the deceased died on the spot at 1.00 P.M. On 12.09.2009 at about 1.30 P.M., P.W.1 Mallesham went to the police Station, Mirdoddi and lodged Ex.P13 report. P.W.10 the Sub-Inspector of Police registered a case in crime No.53 of 2004 under Section 302 IPC and issued Ex.P13 F.I.R. P.Ws.2 and 3 have seen the accused soon after the incident coming out of the house of the deceased. The police went to the scene of offence and conducted Ex.P8 scene of offence panchanama and Ex.P9 inquest panchanama in the presence of panch witnesses P.Ws.4 and 6. The police got photographed the dead body and features at the scene through P.W.11-Photographer. The Circle Inspector of Police-P.W.12 seized M.O.1 axe at the scene in the presence of panch witnesses. The dead body of the deceased was sent to Area Hospital, Siddipet. P.W.8 conducted post mortem examination over the dead body of the deceased on 13.09.2004 from 10.00 to 11.00 A.M. and issued Ex.P11 post mortem report opining that the cause of death of the deceased is due to sharp injury on the neck. On 12.09.2004 the accused went to the house of P.W.9, resident of Lingamapally village and made extra judicial confession before him stating that he killed his mother. P.W.9 took the accused to P.W.12 and handed over the accused. P.W.12 secured the presence of P.W.5. K.Guruvareddy and P.W.7 and interrogated the accused. During the course of interrogation, the accused confessed that he killed his mother. P.W.12 seized M.Os.2 and 3 blood stained clothes of the deceased under Ex.P17. After completion of investigation, he filed the charge sheet. 3 . The charge levelled against the accused is that on 12.09.2004 at about 1.00 P.M. at Mirdoddi village and Mandal the accused committed murder of his mother namely Durgavva with an axe by consuming toddy due to the disputes between himself and his mother and thereby committed an offence punishable under Section 302 IPC and within my cognizance. When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.17, besides marking the case properties-M.Os.1 to 3. 5. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. No evidence, either oral or documentary, has been adduced, on behalf of the accused. 6. The Trial Court accepting the evidence of P.W.9, to whom the accused said to have given the extra judicial confession, found that the prosecution could establish the guilt of the appellant/accused beyond all reasonable doubt, and accordingly, convicted and sentenced him as above. Challenging the same, the present appeal is filed by the accused. 7. Now, the point for determination is:- “Whether the prosecution proved its case for the offence charged against the appellant/accused, beyond all reasonable doubt?” 8. Learned counsel for the appellant contended that all the eyewitnesses did not support the case of the prosecution, that the entire case rests upon the solitary testimony of P.W.9, who is totally a stranger to the accused and there is no occasion for the accused to go and seek his advise or that the accused went and gave extra judicial confession before P.W.9 with a view to help him and, therefore, it is not safe to place an implicit reliance on the extra judicial confession and hence he prays to set aside the conviction and sentence recorded against the accused. 9. Learned Additional Public Prosecutor contended that though P.W.9 is a stranger, there is no motive or ill intention for him, so as to implicate the accused in a case of this nature, that his evidence is clear that the accused came to him and told that he killed his mother and immediately he was produced before the concerned police, that there is no other reason to disbelieve the evidence of P.W.9 and that is the reason why the trial court relied upon the evidence of P.W.9 and hence, there are no grounds to interfere with the same. 10. The accused is no other than the son of the deceased, and they are the residents of Mirdoddi village. The accused used to live by coolie work. It is the case of the prosecution that on 12.09.2004 at about 1.00 P.M. at Mirdoddi, the accused after consuming toddy hacked his mother due to some disputes. P.Ws.1 to 5, who are the witnesses present to speak about the incident, did not support the case of the prosecution and they have given a complete go by to their earlier version made to the police during the course of their examination under Section 161(3) Cr.P.C. Therefore, the Public Prosecutor in the trial Court sought permission to declare them as hostile. Even after cross-examination also, nothing has been elicited by prosecution to connect the accused with the crime. 11. P.W.6, who is one of the mediators present at the time when the police conducted inquest on the dead body of the deceased under Ex.P9 inquest report, opined that the deceased died as a result of injury on the neck. The evidence of P.W.6 and the recitals in Ex.P9 remained unchallenged. 12. P.W.8, the Doctor who conducted autopsy on the dead body of the deceased, found deep chop wound over the posterial part of the neck and almost cutting the neck in the middle, it was just hanging forward with the food and wind pipe in time with the anterior neck skin. He opined that the deceased died as a result of sharp injury in the neck leading to shock and heamorrhage and issued Ex.P11 post mortem certificate. The evidence of P.W.8 and the recitals in Ex.P11 remained unchallenged. Therefore, the prosecution is able to establish that the death of the deceased is homicidal in nature. 13. Now it has to be seen whether the appellant/accused is the assailant of the deceased or not. 14. As already stated, the entire case rests upon the evidence of P.W.9, who was doing civil contracts work and the accused used to attend to the civil contracts work of P.W.9. The incident is alleged to have taken place on 12.09.2004, whereas the accused was known to P.W.9 just seven months prior to the said incident. The distance between the village of P.W.9 and Mordiddi, which is the residence of the accused, is about 5 k.ms. 15. There cannot be any dispute that if extra judicial confession can be found to be a true, trustworthy and reliable one and it is made to a person who had no grouse or enemity against the accused, it can be acted upon and conviction can be maintained. The value to be attached to an extra-judicial confession would depend upon the reliability of the person to whom it is made, the interval between the occurrence and the confession, the reproduction of exact words of the accused confessing to the crime, which the person to whom the confession made and follow up action. 16. P.W.9 deposed that the accused used to attend in the civil contracts work, but he has not stated that the accused used to attend to his labour work in the contracts that were being done by P.W.9. For the first time, he stated that the accused was doing civil contracts work and, therefore, he knows him. The evidence of P.W.9 to the effect that the accused was doing labour work in his contracts cannot be accepted because the same was not stated by him when he was examined by the police under Section 161(3) Cr.P.C. or before the Magistrate under Section 164 Cr.P.C. Therefore, that improvement cannot be accepted. If such is the case, there is no reason for the accused to do the labour work far away from the place of his village. The distance between the village of the accused and P.W.9 is about 5 k.ms. and on the earlier occasions also he never came to his house and he does not know the family affairs or the disputes of the accused. Therefore, from the evidence of P.W.9, it is clear that he was totally a stranger to the accused and he was simply doing some civil contracts work. When P.W.9 was totally a stranger to the accused, it may not be possible for the accused to give extra judicial confession stating that he committed the murder of the deceased by covering a distance of 5 K.Ms. If the accused got confidence on P.W.9 that he would help him with regard to the case, then there was some meaning for the accused to give extra judicial confession before him. It is not the case of P.W.9 that the accused came to him seeking his help to get rid of the case. Therefore, it is quite improbable to believe the evidence of P.W.9 who is a stranger to the accused to give such a extra judicial confession. Except the extra judicial confession, there is no other evidence to show that the accused is the assailant of the deceased. Therefore, it is not safe to place an implicit reliance on the evidence of P.W.9 alone to base a conviction. 16. The other circumstance is that M.Os.2 and 3- blood stained clothes of the accused were seized under Ex.P17 and they were sent to the Forensic Science Laboratory. The clothes of the accused were stained with human blood, but the blood group of those stains was not determined by the Forensic Science Laboratory. Therefore, the bloodstains contained on M.Os.2 and 3 which were worn by the accused were not shown to be the same group of blood of the deceased. Similarly, the axe-M.O.1, which was seized at the instance of the accused also does not contain the same group of blood of the deceased. Therefore, this circumstance cannot be taken to arrive at a conclusion or to draw an inference that the accused is the assailant of the deceased or that M.O.1 was used in the commission of the offence. 17. Therefore, in the absence of any other evidence, recording the conviction basing upon the solitary testimony of P.W.9 is unsustainable, because the evidence of P.W.9 is not shown to be unimaginable on his own saying that the accused is a stranger to him. Therefore, it is highly improbable to believe that the accused gave extra judicial confession to P.W.9. Hence the conviction and sentence recorded against the appellant/accused are to be set aside. 22. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 IPC in Sessions Case No.130 of 2006, dated 15.11.2006, by IV Additional District & Sessions Judge, (Fast Track Court), Siddipet are set aside and he is set at liberty, forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant/accused shall be returned to him. _________________ A. GOPAL REDDY. J ____________ K.C.BHANU.J 19th July 2010 lmv.