THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE K.C.BHANU Crl.A.No.251 of 2007 Date of Judgment: 30-06-2010 Between: Gadela Chandrayya ..Appellant And The State of A.P. rep. by its Public Prosecutor, High Court of A.P. Hyderabad ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE K.C.BHANU Crl.A.No.251 of 2007 Oral Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The appellant/sole accused, who was tried for the charge under Section 302 IPC by the II Additional Sessions Judge, Parvathipuram in S.C.No.144 of 2006 was found guilty, convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months. Questioning the conviction and sentence recorded against him the present appeal is filed. 2. The gravaman of the charge against the accused is that on 18-06-2002 in between Vempatapuram and Chintalakoridi villages at about 11 A.M., he committed the murder of one Voolaka Dhulikeswara Rao (hereinafter referred to as “the deceased”), Sarpanch of Pedagottili village by strangulation with towel. 3. The prosecution story in brief, which led to conviction of the accused, is as follows: The accused is the resident of Kolisa village and the deceased was the resident of Pedagottili village. P.W.2 is the wife and P.W.3 is the co-brother of the deceased. The deceased was the Sarpanch of the village. On the date of incident i.e. 18-06-2002 at 10 A.M., the deceased left the house to go to Podisa village to attend a marriage function. Some time later P.W.2 came to know that some body killed the deceased and the dead body was lying in the forest of Venkatapuram. Immediately P.W.2 went to the scene of offence, which is a road in between Venkatapuram and Chintalapudi. On enquiry, P.W.2 came to know that the deceased was killed by the accused by putting a towel round the neck of the deceased by throttling, as the deceased did not agree to issue a certificate to the accused to get his timber released from the forest people. On 18-06-2002, P.W.1 at about 3 P.M. went to the Mondekhallu Police Station and gave Ex.P1—report to P.W.10—Sub-Inspector of Police, who registered the case in Cr.No.27/2002 under Section 174 Cr.P.C. on the basis of Ex.P1 report and issued Ex.P6—FIR. He visited the scene of offence along with mediators examined and prepared an observation report covered under Ex.P4; seized M.O.1— 50 rupee note, M.Os.2 to 6 belongings of the deceased; held inquest over the dead body of the deceased in the presence of Panchayatdars and Ex.P3 is the inquest report. He recorded the statements of P.Ws.1 to 3 and others. After the inquest the dead body was sent to postmortem examination. The Civil Assistant Surgeon, Area Hospital, Parvathipuram—P.W.9 who conducted autopsy over the dead body of the deceased opined that the cause of death was due to asphyxia and due to pressure over the left side of the vessels due to ante mortem pressure over the neck and issued Ex.P5 Postmortem Certificate. P.W.11—Circle Inspector of Police, S.Kota took up further investigation and after receipt of postmortem certificate altered the section of law from Section 174 Cr.P.C. to Section 302 IPC and issued altered FIR—Ex.P8; visited the scene of offence and recorded the statements of P.Ws.1 to 7. On 08-09-2002 at about 2 P.M., P.W.1 and others came to P.W.11 along with the accused and presented the report stating that the accused confessed to them and admitted his guilty. Ex.P9 is the mediator’s report. When P.W.1 produced the accused, P.W.11 interrogated the accused and arrested him. After completion of investigation and on receipt of relevant reports he filed the charge sheet against the accused for the offence under Section 302 IPC. 4. On committal, the learned Sessions Judge framed one charge for the offence under Section 302 IPC and the accused denied the same. 5. In support of its case, the prosecution has examined P.Ws.1 to 11 and got marked Exs.P1 to P9 besides case properties—M.Os.1 to 6. No oral or documentary evidence has been adduced on behalf of the defence. 6. The learned Sessions Judge by placing reliance upon the evidence of P.Ws.4 and 6, who are introduced three months after the occurrence as eye witnesses, convicted and sentenced the accused as afore mentioned. Challenging the same the accused preferred the present appeal. 7. Smt. A.Gayathri Reddy, learned counsel for the appellant argued that P.W.1 before whom the accused made extra-judicial confession three months after the occurrence turned hostile. Therefore, no credence can be given to his evidence. P.W.4 deposed that on enquiry he came to know that the accused killed the deceased, but he has not stated the said fact to the police till he was examined. P.W.6 said to have witnessed when the deceased was throttled by the accused not informed to anybody in the village till three months until the accused was produced before P.W.11. They are planted witnesses at the instance of the prosecution. Hence, no credence can be given to their evidence. If the said evidence is excluded, there is no other evidence to connect the accused with the commission of offence. Therefore, he is entitled for clean acquittal. 8. On the other hand, the learned Additional Public Prosecutor contends that there is no enmity between P.W.6 and the accused to implicate the accused in the commission of the offence. P.Ws.4 and 5 saw when the accused and the deceased were going on the bicycle so, it is for the accused to explain how the deceased met with homicidal death. Therefore, non-explanation of the accused is an additional like to chain of circumstances. 9. It is fairly well settled when the prosecution case rests upon circumstantial evidence, such evidence must satisfy the following four tests: "(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently 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 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." Further, where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See SHIVU v. R. G. HIGH COURT OF KARNATAKA (2007) 4 SCC 713). Each circumstance has to be established by clinching evidence and not by mere surmises. (See RAMESH KUMAR v. STATE OF PUNJAB AIR 1994 SC 945). 10. Keeping in view the above legal principles in mind, we have to see whether the chain of circumstances as established by the prosecution is complete to convict the accused. 11. P.W.1, who is not an eyewitness, declared hostile by the prosecution. He deposed that he came to know that the body of the deceased was lying by the side of canal in between Chintalapudi and Venkatapuram villages and he along with some others went to the place where the dead body of the deceased was lying; on the same day he lodged a compliant—Ex.P1 with Mondekhallu Police; there was a rumor in the village that the accused killed the deceased when he along with some others held Panchayat at Ratchabanda; P.W.6 and his wife came there and told that they saw when the accused killing the deceased by putting a towel around the neck of the deceased; by that time accused was in the police station. At that stage he declared hostile by the prosecution. In the cross-examination he stated that on 18-06-2002 the deceased was found at Chapaguthilli bus stand; on enquiry the deceased told that he was going to Podisa village on a cycle to attend a marriage function and he was alone at that time. 12. P.W.2, who is the wife of the deceased, deposed that at 10.00 A.M. the deceased left the house to go over to Kolisa village to attend a marriage function; some time later she came to know that her husband was killed by somebody and the body was lying in the forest of Venkatapuram; on that she went to the scene of offence, which is the road in between Venkatapuram and Chintalapudi; on further enquiry she came to know that the accused killed the deceased by putting a towel round the neck of the deceased and by throttling; there was dispute between the accused and the deceased with regard to issuance of certificate for release of timber from the forest people. 13. P.W.3 also stated that 10 days after the incident he came to know that some persons of Venkatapuram saw the accused and deceased altercating and the accused killing the deceased at the scene. 14. P.W.4 deposed that at about 10 A.M. he saw the accused and deceased going on a bi-cycle; the deceased was peddling the cycle and the accused was sitting as pillion rider; he found P.W.2, wife of the deceased, coming by weeping, but he did not tell the same to the police. 15. P.W.6, who is the alleged eyewitness and on the said evidence the accused was convicted, stated that one day he along with his wife went to their lands; on the way the deceased and the accused were found and the accused put a towel round the neck of the deceased and throttled him; the accused having killed the deceased by throttling thrown the dead body into the canal; thereafter, he and his wife came to their house and the accused also came to his house and asked for water, they gave water he drank the same and left the place; he told the said incident to P.W.7. The forest people seized the timber belonging to the accused on which the accused asked the deceased to issue a certificate that the said timber was gathered from his lands, as the deceased did not oblige, the accused killed him; he witnessed the incident at a distance of 200 yards. 16. P.W.7 deposed that P.W.6 told him that the accused put a towel round the neck of the deceased and throttled him. He informed to Sriramulu—L.W.14 about lying of dead body in the canal. He also stated that at about 11 A.M. he saw the dead body of the deceased lying in the canal. He did not tell the reason as to why P.W.6 disclose the said fact to him. 17. P.W.8 stated that on 18-06-2002 P.W.11 called him to the camp office of Mondekhal and one Jayakumar—L.W.18 also came there and in their presence the accused confessed that he committed the offence. 18. P.W.11, who is the Investigating Officer, stated that he took up investigation in the case; on 04-09-2002 he obtained postmortem certificate of the deceased and altered the section of law from Section 174 Cr.P.C. to Section 302 IPC and submitted the altered FIR—Ex.P8; visited the scene of offence; secured the presence of P.Ws.1 to 7 and Mohan Rao, Rama Rao, Srinivasa Rao—L.Ws.4 to 6 and A.V.Kumar —L.W.8 and B.Nandum—L.W.9 examined them and recorded their statements under Section 161 Cr.P.C.; while he was in Mondekhal AOP, P.W.1, Nimmala AmBoji (L.W.16) and Biddika Rama Rao (L.W.17) along with the accused came and presented a report stating that the accused volunteered to them and admitted his guilt. Ex.P9 is the report given by them; he recorded the statement of L.W.16—Amboji and L.W.17—B.Ramarao; secured the presence of Gudarai Jayakumar (L.W.17) & P.W.8 and in their presence he interrogated the accused. 19. The evidence of P.W.11 is contradictory to the evidence of P.W.8. According to P.W.8, on 18-06-2002 he and Jayakumar (L.W.18) were called to the police station and in their presence the accused confessed that he committed the offence. Whereas according to P.W.11, P.W.1 and others produced the accused before him on 08- 09-2002 i.e. two and half months after the incident. P.W.6, who is projected as eye witness and informed about the incident to P.W.7, has not disclosed the said incident to anybody in the village until the postmortem report is received and section of law was altered from Section 174 Cr.P.C. to Section 302 IPC, which clearly indicates that P.W.6, who is not an eye witness, is planted by the prosecution. Further, the last seen theory propounded through P.W.4 also cannot be accepted. For the reason, he admitted that he found P.W.2, wife of the deceased, coming by weeping, but he did not disclosed the same either to the villagers or to the police. The so-called extra judicial confession made to P.W.1 on production before P.W.11 on 08-09-2002 also cannot be believed, as the accused was in the police custody since from 18-06-2002 as spoken by P.W.8. If that be the case, no credence can be given to the confessional statement made by the accused on 08-09-2002. If the evidence of P.Ws.4 and 6 is excluded, there is no other evidence to connect the accused with the commission of offence. 20. If we test the prosecution evidence on the touchstone of law relating to circumstantial evidence laid down by the Supreme Court, we are of the view that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. The learned Sessions Judge fell in error basing the conviction wholly on the unreliable and uncorroborated evidence of PWs.4, 6 and 7. 21. For the above conclusions reached by us, once the chain of circumstances are not complete and there is missing link to connect the accused with the commission of offence, the accused is entitled for acquittal. 22. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/sole accused for the offence punishable under Section 302 IPC in S.C.No.144 of 2006 dated 02-02-2007 by the II Additional Sessions Judge, Parvathipuram are set aside and he is set at liberty forthwith, if he is not required in any other case. _________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 30-06-2010 Murthy