THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Crl.A.No.39 of 2008 Date of Judgment: 28-11-2011 Between: ..Appellant and 1. State of A.P. rep. by its P.P. High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Crl.A.No.39 of 2008 Oral Judgment:(Per Hon’ble Sri Justice R.Kantha Rao) 1. Heard Sri C.Padmanabha Reddy, learned senior Counsel appearing for the appellant/A1 and Sri P.Nageswara Rao, learned Additional Public Prosecutor appearing for the State. The case of the prosecution is as follows: 2. P.Ws.1 and 2 are the sons of the deceased. The accused and the deceased are agriculturists and their lands are adjacent to each other and some times there were quarrels relating to the land and cultivation. The deceased as an elder to S.C. Colony used to settle the disputes by holding caste Panchayats. On the date of the incident at about 7.30 P.M., the deceased went to the village. At about 10 or 11 P.M., P.Ws.3 and 4 saw the deceased sitting along with A1 to A3 near the campfire in front of P.Ws.3’s house. As the deceased did not return back home even by 1.30 A.M., P.Ws.1 and 2 went in search of him. When they reached near the house of one Begari Pedda Balaiah (not examined) they found some persons moving bending themselves. When P.Ws.1 and 2 questioned them as to what they were doing and who are they, on seeing them the said persons fled away. P.W.1 identified them as A1 to A3 and A4 and followed them. Then they found the deceased lying upside down on the ground with an axe injury on the right side of the neck. Thereafter, P.W.1 lodged a report which is marked as Ex.P1. 3. On 17-11-2005 about 8 A.M., on receiving Ex.P1—report from P.W.1, P.W.9 the then Sub-Inspector of Police, Munipally registered a case in Cr.No.70 of 2005 and issued FIR which is marked as Ex.P9. P.W.10, the Inspector of Police took up further investigation; visited the scene of offence, prepared observation report and further held inquest over the dead body of the deceased in the presence of P.W.6 which are marked as Exs.P5 and 4 respectively. Thereafter, the dead body was referred to hospital for postmortem examination. 4. On 17-11-2005 on requisition, P.W.8 the Civil Assistant Surgeon, Government Hospital, Sadasivapet held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and hemorrhage. Ex.P8 is the postmortem report. 5. On 22-11-2005 ID party constable apprehended A1, A2 and A4 and produced them before P.W.10. During the course of interrogation at the instance of A1, M.O.2—Yerukal kathi, M.O.3—shirt were recovered in the presence of P.W.7 under Ex.P7—seizure Panchanama. P.W.10 sent the accused for judicial remand and then forwarded material objections to RFSL. Ex.P12 is the FSL report. After receiving all the relevant documents and after completing the investigation the successor of P.W.10 filed the charge sheet. 6. In support of its case the prosecution examined as many as ten witnesses and got marked 13 exhibits. The plea of the accused is one of denial. 7. The prosecution sought to prove the guilt against the appellant/A1 as well as A2 to A4 by one and the same evidence. According to the prosecution, P.Ws.1 and 2 saw some people near the house of Begari Pedda Balaiah passing through by bending in order to avoid their visibility. Both the witnesses identified those persons as A1 to A3 followed by A4. These witnesses went near to the spot and found the body of the deceased lying dead upside down and having axe injuries on the right side of the neck. But the evidence on this aspect was not believed by the learned Sessions Judge for the reason that P.Ws.1 and 2 are no other than sons of the deceased, their witnessing the appellants in the manner in which they had spoken to was improbable. Having regard to the fact the manner in which P.Ws.1 and 2 gave evidence and in view of circumstances under which the incident said to have taken place, the learned Sessions Judge rightly disbelieved the evidence of P.Ws.1 and 2. 8. P.W.8 is the autopsy surgeon. According to his evidence, he conducted postmortem examination over the dead body of the deceased between 3.00 P.M. and 5.30 P.M. and found the following ante mortem injuries: 1. An incised injury from the angle of the mouth 15 x 2 ½ x 2 ½ inches occipital bone. 2. An incised injury on the chin to the back of the neck about 10 x 2 inches x ½ inch with cutting of trachea esophagus and neck beggels. 3. An incised injury on the occipital region about 4 ½ x 1 x 2 ½ inches with the fracture of occipital bone and separation of neck partially. 9. In the opinion of P.W.8, injuries mentioned in column Nos.9 to 11 of the report are possible with the weapon like M.O.2; the cause of death is due to shock and hemorrhage rupture of vital organs like vessels in the neck and multiple injuries over the neck. However, in the cross-examination, P.W.8 admitted when a heavy weapon like M.O.2 is used, the edges of the injury will have contusions, which were not present on the body of the deceased. He also admitted if a weapon like axe is used, it will cause chop injury. The learned Sessions Judge mainly relied upon the evidence of P.W.3 and 4 who have stated in their depositions that they found deceased, A1 to A3 sitting near campfire and after seeing them P.Ws.3 and 4 went to their respective houses, on the next day morning they came to know that the deceased died. Even if their evidence is considered to be true, it cannot be presumed that death of the deceased occurred in close proximity when the deceased was seen in the company of A1 to A3 near the campfire. Another piece of evidence basing on which learned Sessions Judge placed reliance is one relating to recovery of M.O.1— one pair of chappal of the appellant/A1 and M.O.2—Yerukal kathi in pursuance of the confession made by the appellant/A1 to P.W.10— Investigating Officer. P.W.7 stated in his deposition that on 22-11- 2005 he was called by the police by which time the other mediator— Krishna Rao was also present. The police interrogated the appellant— A1 in their presence. Thereafter, in pursuance of confessional statement the appellant/accused lead them to a place called Mangali Sangaiah fields, which is by the side of canal. He further deposed that appellant went to the bushes and brought blood stained knife and also picked blood stained shirt and handed over them to the Investigating Officer in his presence and that of another mediator. 10. The Investigating Officer—P.W.10, however, deposed about the factum of recovery of M.O.2 –knife and M.O.3—shirt in pursuance of confessional statement. Even if the evidence of P.W.7—mediator and P.W.10—Investigating Officer is considered as true at best it shows the knowledge of appellant about the existence of knife and shirt, except the said fact nothing can be said to be proved in pursuance of disclosure statement made by the appellant. Here is the case where charge has been framed against A1 to A4 to the effect that with a common intention they killed the deceased. No specific overtacts have been mentioned in the charge against any of the accused. In such an event if the entire evidence relating to recovery by the mediator and Investigating Officer is believed, no presumption can be drawn that A1 caused injuries to the deceased with M.O.2—knife. In Ex.P12—FSL report it was stated human blood was found on M.O.2 —knife and nothing else. 11. From this it is highly difficult to connect A1 with the commission of offence. Most important aspect in this case is that the learned trial court disbelieved the evidence of P.W.1 and 2 against A2 to A4 but believed the very same evidence against the appellant/A1. He did not assign any reason as to how he recorded conviction against A1 and acquitted A2 to A4 on the same evidence. Merely because recovery of M.O.2—knife and M.O.3—shirt were made in pursuance of disclosure statement made by A1, convicting A1 with the aid of charge under Section 302 r/w 34 IPC is totally erroneous and unsustainable in law. In fact, there is no evidence showing involvement of A1 and learned trial Judge recorded conviction based on surmises and conjectures. 12. For the reasons stated hereinabove, we are of the considered view that there is no legal evidence to prove the charge against A1 either under Section 302 IPC simplicitor or under Section 302 r/w 34 IPC. The conviction and sentence recoded by the learned Sessions Judge, Medak at Sangareddy in S.C.No.393 of 2006 against the appellant for the offence punishable under Section 302 IPC are aside. The appellant/A1 is acquitted of the said offence. The appellat/A-1 shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant/A1 shall be refunded to him. 13. The Criminal Appeal is accordingly allowed. __________________ A. GOPAL REDDY, J _______________ R.KANTHA RAO, J 28-11-2011 Murthy