IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE 7th 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.298 of 2007 Between: Jagati Shankar … 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.298 of 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) Appellant/sole accused in Sessions Case No.49 of 2006 on the file of the Sessions Judge at Karimnagar, who was tried for an offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, “the Act”) was found guilty and was sentenced to suffer imprisonment for life and also to pay fine of Rs.100/-, in default to undergo simple imprisonment for 15 days, filed this appeal challenging the conviction and sentence recorded against him. 2. The substance of the charge framed against the accused is that on 29.03.2005 at about 4.00 P.M. at the outskirts of Janagam village, he caused the death of Bandala Mallamma (hereinafter referred to as “deceased”). 3. The prosecution case as narrated during the course of trial is briefly stated as under: - The deceased was a native of Janagam village. She had three sons and one daughter and her husband, who was working in Singareni Collieries, died about 13 years ago while he was in service and in his place, the deceased was given a job in Singareni Collieries as a General Mazdoor in 9 Incline, GDK, whereas the accused is also from Janagam village and also working in OCP-3. Both the accused and the deceased had developed illegal contacts between them about 10 years ago and they were continuing the same. After the employment, the deceased took four L.I.C. policies in her name. About 20 days prior to the date of the incident, the accused and the deceased visited P.W.3 and the deceased told about her sufferings with the accused and expressed her wish to go to her children. Once in two or three months, the deceased used to visit her children, but the accused was threatening her. About a month prior to the incident, she started living with P.W.1 for about 25 days and informed them that the deceased was beaten and harassed by the accused on the pretext that she was responsible for the death of his son, who died about five months prior to her death. About two days prior to her death, the deceased visited P.W.2- L.I.C agent and asked him to arrange for loan. On 29.03.2005, at about 11.00 or 11.30 A.M., she went to the L.I.C. Office, where P.W.2 took her signatures on the papers and from there she left the office. P.W.2 also noticed the accused accompanying with the deceased. At about 7.30 or 8.00 P.M. on the same day, P.W.1 went to P.W.2 and enquired about his mother stating that she has not returned and he explained that the deceased left in the morning. At the same time, P.W.1 also informed P.W.4 that while he was standing near the sand shaft at old magazine, he saw the accused and the deceased going inside the old magazine and even after an hour they did not return, as such he entertained suspicion and later he saw the accused alone coming out and leaving the place. As the deceased did not return home, P.W.1 made enquiry and came to know through P.W.4 at about 10.00 P.M. that he saw the accused and the deceased at old magazine. But on the next day morning i.e., on 31.03.2005 at about 6.00 A.M., P.W.1, his brothers, sister and neighbours also went to the Old Magazine and found the deceased lying dead with bleeding injuries. Then P.W.1 lodged a report at Godavarikhani, II Town Police Station. On the basis of the report lodged by P.W.1, the then Inspector of Police registered the same as case in crime No.36 of 2005 and issued F.I.R. under Ex.P11. During the course of investigation, he examined P.W.1; visited the scene of offence; prepared scene of observation report; got the scene of offence photographed through P.W.7 under Exs.P2 to P4; held inquest over the dead body in the presence of P.W.8 under Ex.P5-inquest report; prepared Ex.P6 scene of offence panchanama and Ex.P7 rough sketch. P.W.10, the Civil Assistant Surgeon, Government Area Hospital, Godavarikhani, on the requisition given by P.W.11, held autopsy over the dead body of the deceased and opined that the cause of death was due to shock and haemorrhage due to head injury and issued Ex.P10-postmortem report. On 06.04.2005 P.W.11 arrested the accused and in pursuance of his statement, blood stained clothes of the accused and the identity card of the deceased were recovered in the presence of P.W.9. He then sent all the material objects to R.F.S.L. and after receiving all the documents and on completion of the investigation, filed the charge sheet. 4. On committal, the learned Sessions Judge, framed charge under Section 302 IPC and when the same was read over to him in telugu, he denied the said charge and claimed to be tried. 5. In order to substantiate its case, the prosecution examined P.Ws.1 to 11 and marked Exs.P1 to P14 and Exs.X1 to X3, besides the case properties M.Os.1 to 11. 6. After the prosecution evidence is closed, accused was examined under Section 313 Cr.P.C., for which he denied the incriminating evidence put to him. On behalf of the accused, Exs.D1 to D3 were marked. 7. The learned Sessions Judge after critically analyzing the oral and documentary evidence found the accused guilty for the charge and sentenced him to imprisonment as aforementioned. 8. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant/accused submits that the entire case rests upon the circumstantial evidence. The deceased was last seen in the company of the accused at about 11.00 or 11.30 P.M., as per P.W.2; according to P.W.4, he saw the accused and the deceased going inside the old magazine at 3.00 or 3.30 P.M.; and whereas P.W.5 saw the accused and the deceased going on a motor cycle, they stopped the motor cycle purchased bananas and left towards Jangam at 3.00 or 3.30 P.M., which clearly goes to show that their evidence is inconsistent with each other. P.W.1 deposed that he was informed by P.W.4 at 9.00 or 9.30 P.M. on the next day about what he saw on the previous day. Whereas in his report under Ex.P1, P.W.1 stated that on the previous day night at 10.00 P.M., P.W.4 informed him that on 29.03.2005 the accused took the deceased on a Honda Motor cycle into the old magazine and after one hour he alone left that place and as it was night he could not report the incident. Therefore, his evidence is inconsistent with his own report under Ex.P1. When the deceased and the accused were last seen together on 29.03.2005 and the dead body was found on 31.03.2005 as per Ex.P1 report, which is not proximate to the last seen theory, it is unsafe to convict the accused solely basing upon the last seen theory. It is further contended that P.W.4 is a planted witness, as he stated that while he was near sand shaft at old magazine, he saw the accused and the deceased going inside the old magazine and he was present there talking with some persons for one hour and after one hour only the accused returned alone from the old magazine, but he does not know the names of the persons with whom he was talking. Therefore, the accused is entitled for acquittal. 9. Per contra, the learned Additional Public Prosecutor, representing the Public Prosecutor contends that P.Ws.4 and 5 have last seen the deceased in the company of the accused on 29.03.2005 and the identity card of the deceased was recovered from the possession of the accused. Therefore, it is for the appellant/accused to explain as to how he came into possession of the same. Therefore, the trial Court rightly convicted him for the said offence. 10. In the light of the above submissions, the point that arises for consideration is Whether the prosecution is able to prove the guilt of the appellant/accused beyond all reasonable doubt? P O I N T: - 11. The entire case rests upon the circumstantial evidence. It is now fairly well settled that when a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.[1], wherein at para 10 it was held as follows:- “(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 the 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.” 12. P.W.1, who set the criminal law into motion by filing Ex.P1 report, stated that after the death of his father, the deceased developed illicit intimacy with the accused and by leaving them, she is residing with the accused at his house. Then the villagers P.Ws.6 and others summoned their mother, and the accused and advised the deceased to live with their children, but she did not care their advise and left with the accused and at times the deceased used to come and see them and was going back. About a month back their mother came to their house and is residing with them. On enquiry she revealed that son of the accused died about five months back and the accused started abusing and beating her, holding her responsible for the death of his son and as she could not bear his ill treatment she came to them. About four days prior to the incident their mother informed that the accused approached her and asked her to come to him and live with him leaving her children and she has to give her salary to him only otherwise she would be killed. While so, on 29.03.2005 their mother left the house saying that she is going to her mine work and she would also go to L.I.C. Office and come back, but she did not return home till evening. On that he went to Godavarikhani, L.I.C. Office and enquired with the L.I.C. Agent Chakrapani-P.W.2 about his mother. P.W.2 informed him that his mother was taken by the accused. On that he came back home but found his mother did not come home. He then went to the accused and asked him about his mother on which he replied that his mother left for his house only. As such he was moving for his mother. While he was searching for her mother on 30.03.2005 at 10.00 P.M., P.W.4 informed him that on 29.03.2005 at 4 P.M., the accused took the deceased on Hero Honda Motor cycle into the old magazine and after one hour he alone left from that place. On that P.W.1 grew suspicion and thereby he went to the old magazine along with his relatives and found her mother lying dead. As it was late night, he could not report the incident. Whereas, when he was examined in the court as P.W.1, he stated that when he went to meet the L.I.C. Agent, Chakrapani-P.W.2, to L.I.C. office, he was not present there and did not find him and then he went to the house of P.W.2 and enquired for his mother, then P.W.2 told him that at about 3.00 or 3.30 P.M. he saw the accused and his mother going together on a two wheeler. While he was searching for his mother on 30.03.2005 evening, his friend, P.W.4 informed him that on the previous evening at about 10.00 P.M. he saw the accused taking his mother on a two wheeler to the place called as old magazine. On the next day morning at 6.00 A.M. himself, his brothers and sister and neighbours went to Old Magazine and found the dead body of his mother. As it was night on 30.03.2005, he did not go towards Old Magazine. He further deposed that he observed bleeding injuries and found that the deceased was beaten with boulders and killed her. Then he went to Godavarikhani II Town police station and gave report to the police. In the cross-examination he stated that he suspected that the accused killed the deceased. On 29.03.2005 his mother told him that after completion of her duty, she will go to L.I.C. Office and on 30th night itself they searched the old magazine and found the dead body. There are no lights at the place of abandoned magazine and there are full of trees and they searched with the help of mobile lights. Because it was night on 30th when they found the dead body, he did not give any report to the police immediately on that night. 13. P.W.2, who is an L.I.C. Agent, testified that the deceased took three L.I.C.Policies in her name and two days prior to her death, she asked for L.I.C.Loan and at about 11.00 or 11.30 A.M. the deceased came to him and he also observed the accused. After he took deceased signatures on papers, she left the L.I.C.Office. On the same day evening at about 7.30 or 8.00 P.M., P.W.1 went to him and enquired about his mother. He explained him that the deceased came to the L.I.C. office in the morning at 11.00 or 11.30 A.M. and after completion of her work, she left the L.I.C.Office. On the next day morning, he came to know that the deceased was killed. 14. P.W.4, who is a crucial witness on whose evidence the accused was convicted, deposed that on 29.03.2005 at about 3.00 or 3.30 P.M., while he was near sand shaft at old Magazine, he saw the accused and the deceased going inside the Old Magazine by parking accused’s two wheeler on the road. He was there for about one hour and entertained some suspicion. One hour later the accused alone came out and left the place. He felt some tension and he did not disclose the same to any one. On the next day evening at 9.00 or 9.30 P.M. when P.W.1 was enquiring about his mother, he told him what he saw on the previous day. In the cross-examination he stated that he do not know the names of the persons with whom he was conversating at that time. 15. P.W.5, who is a resident of Janagam village and who is a supplier in Hi-Tech Bar, deposed at about 3.00 or 3.30 P.M. while he came out to take tea, he saw the accused and the deceased on the motor cycle of the accused stopped there and purchased Bananas and left towards Janagam village. After the death of deceased’s husband, the deceased was living with the accused, as his concubine. P.W.6 deposed that one year after the death of the deceased they found the accused in the house of the deceased, for which they held panchayat in which the deceased expressed her wish to live with the accused. Therefore, they allowed her to live with the accused. In his absence the deceased told her problems to P.Ws.2 and 3 who brought the deceased to her children and thereafter the deceased was living with her children. In the cross-examination he admitted that the duty hours of the deceased was for eight hours from 7.00 A.M. to 3.00 P.M. He denied the suggestions that their caste elders and themselves and children of the deceased were angry towards the accused and the deceased and they themselves killed the deceased and foisted a false case against the accused by showing all their caste persons as witnesses. 16. P.W.8, is an inquest panchayatdar. He is also eyewitness to the seizure of M.Os.1 to 7 from the scene of offence and signed the crime details form Ex.P6 and Ex.P7 rough sketch for the scene of offence. P.W.9 stated that on 06.04.2005 at about 11.00 or 11.30 A.M. the police came to the house of the accused. At the instance of the police, they took the accused aside and questioned him. He stated that he would produce his clothes and identity card of the deceased and his motor cycle. Accordingly he went inside the house and brought the said items-M.Os. 8 to 10. 17. P.W.10 the Doctor who conducted autopsy on the dead body found the following external injuries: 1. Crush wound over the left frontal region above the left eye brow. 2. A crushed wound voer the temporal region above the riht ear. 3. Abrasion of 3 X 3 “ over right upper part of the thigh. He issued Ex.P10 post mortem report opining that the cause of death is due to shock and haemorrhage due to head injury. 18. P.W.11, the inspector of police who investigated into the crime and registered the crime, deposed in the cross-examination that he did not enquire P.W.2 about the policy particulars of the deceased and according to his investigation P.W.1 found the dead body of the deceased after 10.00 P.M. on 30.03.2005. At that time along with P.W.1, his brothers and sister were also there. There are thickly grown CV Caliptos trees at the scene of offence and there was no electric supply to the Old Magazine. The deceased was in the morning shift from 7.00 A.M. to 3.00 P.M. on the date of the offence. He did not obtain any letter from the employer of the deceased, that she left the working place earlier after obtaining permission. 19. From the evidence, as referred to above, P.W.2 stated that at 11.00 or 11.30 A.M. the deceased went to the L.I.C.office and after signing the papers she left the office. On the next day morning he came to know that the deceased was killed on 30.03.2005. Whereas P.W.4 stated that at 3.00 or 3.30 P.M. he saw the accused and the deceased going inside the old Magazine by parking the accused’s vehicle and on the next day, evening at 9.00 or 9.30 P.M. i.e., on 30.03.2005 when P.W.1 was enquiring about his mother, he told him what he saw on the previous day. Whereas according to P.W.1, P.W.4 told him that at about 10 P.M. on the previous day evening, he saw the accused taking his mother on a two wheeler to the place of Old Magazine, which is an abundant place. The time when P.W.4 last saw the accused and deceased going together is not consistent and it is at variance as per the evidence of P.Ws.1 and 4. The evidence of P.W.4 that he was conversating with some persons for more than one hour at the sand shaft near Old Magazine, but he does not know the names of the persons with whom he was conversating, clearly goes to show that he was a planted witness to show that he has last seen the accused and the deceased going together in the evening. 20. When the prosecution case rests upon the circumstantial evidence, all the links in the chain of circumstances should be established beyond all reasonable doubt. But in the case on hand, all the incriminating circumstances are found to be uncomparable with the guilt of the accused. Each of such circumstances should be proved by adducing evidence and not by surmises. Small suspicion cannot substitute a legal proof. The chain of circumstances have not been completed and there is a missing link to connect the accused with the commission of the offence. P.W.4 ‘s evidence is unreliable, for the reason that he disclosed to P.W.1 that he saw the accused and the deceased together at 10.00 P.M., whereas in the evidence he stated that at 3.00 or 3.30 P.M. If his evidence is eschewed from consideration, there is no other evidence to connect the accused with the commission of the offence. In view of the same, as the chain of circumstances starting from the morning on 29.03.2005 when the deceased left the house till the dead body was found, are not complete, it is unsafe to convict the appellant/accused on the above evidence adduced by the prosecution. The appellant/accused is entitled for acquittal. 21. 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 by the Sessions Judge, Karimnagar, in Sessions Case No.49 of 2006, dated 21.02.2007, is set aside and he shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him forthwith. _________________ A.GOPAL REDDY. J ____________ K.C.BHANU.J 7th July 2010 lmv. [1] AIR 1990 SUPREME COURT 79