THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELGANGO Crl.A.No. 1608/2007 Dt.12-7-2011 1. Mabbu Narasimhulu and another ..Appellants/A1 and A-2 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No. 1608/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) Accused Nos.1 and 2 in SC No.304/2006 on the file of II Additional District and Sessions Judge, Chittoor at Madanapalle, were tried for the alleged commission of offence punishable under Section 302 IPC for causing the death of Anjappa (hereinafter referred to as “the deceased”) by throttling with a rope and by twisting the testicles by A-2 and were convicted and sentenced to imprisonment for life and to pay a fine of Rs.100/- in default to suffer rigorous imprisonment for a period of one months each month, by judgment of that court dt. 3-8-2007. They filed this criminal appeal challenging the correctness of the conviction and sentence recorded against them. The prosecution story, as unfolded during the trial, which led to the conviction of the appellants/A-1 and A-2, is as follows: The accused, deceased and all the material prosecution witnesses are the residents of Pulikally village. P.W.1 is the wife and P.W.4 is the father-in-law of the deceased. On the fateful day, at about 8 PM, P.Ws.1,4 and the deceased were in the house. At that time, A-1 came to the house of the deceased and took the deceased outside. The deceased did not return to the house on that night. On the next day morning at about 6 AM, P.W.1 heard the cries of P.Ws.2 from the house of one Vemanna, saying that the dead body of the deceased was found lying there. Then, P.W.1 rushed to the scene of offence and observed the dead body of the deceased. She found that the deceased throat and testicles were squeezed. The deceased testicles were found cut. At about 1 PM, on the same day, P.W.1 went to the police station and gave a report. P.W.20-S.I.of Police, Peddatippasamudram Police Station received Ex.P-1 from P.W.1 on 21-6-2006 at about 5-30 PM and registered it as a case in Cr.No.31/2006 for the offence under Secs. 302 and 201 IPC and issued First Information Report covered under Ex.P-32. P.W.19- Circle Inspector of Police, Mulakalacheruvu, received a copy of Ex.P- 32 on 21-6-2006 at about 9-20 PM and reached the scene of offence on 22-6-2006 at 8-30 AM. He conducted inquest over the dead body of the deceased in the presence of P.Ws.1 to 6, 9 and others and recorded their statements. Ex.P-7 is the inquest report. He prepared scene of offence panchanama. He seized material objections under a cover of mahazar panchanama-ExP-8. After conduct of inquest, P.W.19 sent the dead body for postmortem examination. P.W.18 is the Doctor who conducted autopsy over the dead body of the deceased and issued postmortem report covered under Ex.P-24 opining that the deceased would appear to have died of asphyxia due to strangulation. P.W.19 arrested A-1 on 24-6-2006 at 10 AM in the presence of P.Ws.14 and 15 at Nayanicheruvu bus stop and recorded the confessional statement of A-1. On 27-6-2006 at 11-30 AM, P.W.19 arrested A-2 in the presence of P.Ws.16 and 17 at Zinkalamitta on Kandukru road and recorded the confessional statement of A-2. After completion of investigation and on receiving relevant reports, P.W.19 filed the charge sheet before the Judicial Magistrate of I Class, Thamballapalle. Learned Magistrate took the charge-sheet on file as PRC No.19/2006 and committed the case to the Sessions Division of Chittoor District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.304/2006 and made over to the II Additional District and Sessions Judge, Chittoor at Madanapalle. The learned Sessions Judge on hearing the prosecution and the accused, framed a single charge for the offence punishable under Section 302 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offence for which they stood charged, the prosecution examined 20 witnesses and proved 32 documents and exhibited 14 material objects. After closure of the prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no oral evidence was adduced, but Exs.D-1 to D-3 were marked. The trial court accepting the evidence of prosecution witnesses found the accused guilty of the offence punishable under Section 302 IPC and accordingly convicted and sentenced them as aforementioned. Challenging the conviction and sentence recorded against the accused, they preferred the present appeal. Smt. A. Gayathri Reddy, learned counsel for the appellants/A-1 and A-2 contended that entire case rests upon the circumstantial evidence as there are no eye-witnesses to the occurrence. According to P.W.1, who lodged report covered under Ex.P-1, P.W.2 informed her about the dead body of her husband in the morning at about 6 AM but the complaint was lodged at 5-30 PM, and therefore, the prosecution failed to explain the delay in lodging Ex.P-1. She further contended that P.W.1 stated that at about 3 PM police personnel inspected the scene of offence and she was examined by the police even prior to registration of crime. P.W.1 also stated that police personnel have taken A-1 with them on the same day when they came to the scene of offence, which itself shows that the case has been foisted against the accused 1 and 2 suggesting that the deceased developed illicit intimacy with Ramalakshmamma, wife of A- 2, and therefore the accused cannot be convicted on mere suspicion that A-2 bore grudge against the deceased due to illicit intimacy with his wife. Though the incident had happened, according to the prosecution, on 20-6-2006 at 8 PM , the P.W.18-Doctor conducted postmortem examination on 23-6-2006 and there is inordinate delay in sending the dead body for postmortem and therefore, the same is fatal to the prosecution case. She further contended that the evidence of the investigating officers would itself disclose that they are not sure that the accused themselves committed the murder of the deceased and on mere suspicion, they implicated the accused in a false case. She further contended that the since the entire case rests upon the circumstantial evidence and several links are missing in the chain of events, it is not safe to convict the appellants. She therefore prayed to set-aside the conviction and sentence imposed against the appellants by the trial court. On the other hand, the learned Public Prosecutor while sustaining the impugned judgment under appeal contended that A-1 took the deceased from the house of P.W.1 at 8 PM and on the next day morning dead body of the deceased was found lying near the house of Vemanna, it is for him to explain the cause of the death of the deceased. He further contended that the evidence of P.W.5, who sold whisky bottles to the accused, is corroborated with the evidence of P.W.13, who opined that the chance prints of each accused are found over each whisky bottles of M.O.7, which were also recovered in pursuance of the confessional statement made by the accused, and there is no reason to discredit their testimony. He further stated that the trial court, upon proper appreciation of the evidence on record, rightly convicted and sentenced the appellant and there are no grounds to set-aside the conviction and sentence recorded by the trial court. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the conviction and sentence imposed on the appellants for the offence punishable under Sec. 302 IPC are liable to be set-aside or modified? P.Ws.1 and 4 who are the wife and father-in-law of the deceased are not the eye witnesses to the occurrence. According to their evidence, while P.W.1 was in her father’s house ie., P.W.4 at Kammalapalle, the deceased telephoned to P.W.4 to bring P.W.1 to Pulikallu village. Thereafter, P.W.1 and P.W.4 came to Pulikallu on 20- 6-2006. They further stated that on that night when they were in house at Pulikallu at about 7-30 AM, A-1 came to the house of P.W.1 and took the deceased outside and on the next day morning, P.W.2 informed them that the dead body of the deceased was found lying. Then P.Ws.1 and 2 rushed to the dead body and observed the same and found that his throat and testicles were squeezed and his testicles were found cut. According to P.W.1, she lodged a report covered under Ex.P-1 at 5-30 PM on 21-6-2006, on which basis a crime has been registered by P.W.20 P.W.1 in her evidence further stated that police personnel inspected the scene of offence at about 3 PM and she was examined by the police personnel. She further stated that inquest was held over the dead body on the next day. She further admitted that she stated in Ex.P-1 that she lost consciousness due to the incident and regained the consciousness at 1 PM. After regaining consciousness, P.W.1 lodged Ex.P-1 with P.W.20. P.W.1 also admitted that the police personnel have taken away A-1 with them when they came to the scene of offence. P.W.2 stated about her seeing the dead body and raising cries loudly, due to which, P.W.1, P.W.6, Venkatamma-L.W.5, and others came to the dead body. P.W.3 did not support the prosecution case and was declared hostile. P.W.4 who is the father-in-law of the deceased stated about P.W.2 informing P.W.1 that the dead body of the deceased was found lying at the house of M. Vemanna. P.W.5, who has last seen the deceased in the company of the accused on the date of the incident, deposed that on the night of the incident, the accused and the deceased came to his shop and A-1 came to him and purchased three quarter bottles of alcohol, whereas A-2 and the deceased stood outside of the shop. He does not remember the brand of liquor purchased by A-1. M.O.7 and M.O.8 are the two empty bottles and one broken bottle respectively. In addition to the alcohol bottles, A-1 purchased one pocket of karam batani. In the cross-examination, P.W.5 admitted that on the next day of taking bottles by A-1, the police personnel examined him. He further stated that he is running a sundry shop since 4 or 5 years and there are no sundry shops in his village. He does not remember the details of other customers that came to his shop and also the bottles of the brands of liquor sold by him. He cannot identify all the persons who come to his shop for liquor. P.W.6 who is working as Village Servant at Pulikallu village stated that on 20-6-2006 at about 7 AM, he has seen the dead body of the deceased and on the previous day of the incident, he was in the tea shop of Lakshminarayana at about 8 PM. He does not remember whether any other person came to the said tea shop at that time but accused were there in the tea shop of Lakshminarayana at that time. Police personnel examined him at about 9-45 AM or 10 AM. and they have written the matter there and examined the persons. P.Ws.7 and 8 did not support the prosecution case and were declared hostile. P.W.9, who is running a tea stall by the side of tea stall belonging to his brother, deposed that prior to the date of the death of the deceased, the accused came to his tea stall at about 8-15 AM and had tea and A-2 paid the amount. On the next day morning, he came to know about the death of the deceased at about 7 AM and he was examined by the police personnel. P.W.10 stated that while himself, P.W.8, Reddappa, Anand and others were chit chatting, they observed that the accused and the deceased were going towards the shed of Lakshmi Reddy. On the same day night, while going towards the village, he observed the going of accused from the shed of Lakshmi Reddy towards village. He also stated in his cross-examination that when he returned to the village at about 4 PM police personnel were found writing the matter and at that time he was examined by the police. P.W.11 deposed that the deceased had illicit intimacy with the wife of A-2- Ramalakshmamma and about one year back, the deceased was killed. P.W.12 is the then Panchayat Secretary of Maddaiahgaripalli stated that on 21-6-2006, Inspector of Police, Mulakalacheruvu called him to Pulikallu Harijanawada and in his presence police inspected the scene of offence. He is also a witness to the inquest conducted by the police. When he stated that police personnel have not seized any articles at the shed of Lakshmi Reddy except blood stains, he was declared hostile. In the cross-examination by A-1, P.W.12 stated that he came to know about the death of the deceased through police personnel on phone on 21-6-2006 at 10 AM. P.W.13 is the Finger Print Expert who developed once chance print on the Delight Fine Whisky 180 ML bottle-1 “A” and another chance print on another Delight Fine Whisky 180 ml Bottle-II marked as “B” found that the photography chance print marked as “A” is identical with that of A-1 and the chance print marked as “B” is identical with that of A-2 and prepared a report and sent the same to the Investigating Officer on 7-7-2006 along with photocopies. P.W.14 to P.W.17 did not support the prosecution case and were declared hostile. P.W.18 is the Doctor who conducted autopsy over the dead body of the deceased on 23-6-2006. She found the following external injuries: A ligature mark seen encircling the neck starting from centre of neck over thyroid cartilage 23 cm length x 1/4th inch breadth. Lacerated injury of size 5 cms x 2 cms seen over the bottom of scrotum. She issued postmortem certificate covered under Ex.P-24 opining that the deceased would appear to have died of asphyxia as a result of strangulation. She further opined that the ligature mark referred to in Ex.P-24 can be caused by an object like M.O.9. P.W.19 is the investigating officer. He stated that on 21-6- 2006 at 9-20 PM he received a copy of express FIR covered under Ex.P-32. On receiving Ex.P-32, P.W.19 informed P.W.13 for inspecting the scene of offence along with his team and dog squad. On 22-6- 2006 at 11 AM, he conducted inquest over the dead body in the presence of panchayatdars. He arrested A-1 on 24-6-2006 and A-2 on 27-6-2006. From the evidence, as referred to above, it is clear that the prosecution miserably failed to establish the delay caused in registering the crime and the same has not been properly explained by the prosecution. Admittedly, on 21-6-2006 at about 6 AM, on hearing the cries of P.W.2, P.W.1 rushed to the scene of offence and observed the dead body of the deceased. But she lodged a complaint with P.W.20 at 5-30 PM on 21-6-2006. The prosecution has not explained the reasons as to why P.W.1 has not lodged the complaint immediately on seeing the dead body. Further, according to the prosecution witnesses, the police personnel visited the scene of offence much prior to the registration of crime and took A-1 with them who was present at the village on that day when he visited the scene of offence. According to the evidence of P.Ws.1 and 2, the dead body of the deceased was found seen at 6 AM on 21-6-2006. According to P.Ws.1 and 4, A-1 called the deceased and took him along with him. On that night, the deceased did not return to the house. Even after coming to know the deceased did not come to the house on the night, they have not lodged any report promptly with the police until police started investigation and took A-1 to the police station along with them. According to some of the witnesses, the police personnel visited the scene of offence at 11 AM in the morning. The evidence of P.W.5 is highly suspicious in nature because he has not owned any brandy shop. According to P.W.5, he is running a belt shop. He stated that he cannot remember the details of customers except remembering about A-1 purchasing three brandy bottles while A-2 was outside the shop. He also admitted that he cannot identify all the persons coming to his shop for liquor. No test identification is conducted to identify A-2 whether he is the person present outside the brandy shop. The prosecution also failed to establish the illicit intimacy between the deceased and Ramalakshmamma, the wife ofA-2. Except P.W.11 who stated that the wife of A-2 had illicit intimacy with the deceased, there is no other witness to speak about the illicit intimacy between the deceased and the wife of A-2. No articles were seized as per the evidence of P.W.12, who was declared hostile. Admittedly, as stated supra, the prosecution has relied upon the circumstantial evidence. The exact cause of the death of the deceased is not known. Merely because P.W.1 deposed that A-1 came to her house at about 8 PM and took the deceased with him and on the next day morning at about 6 AM she found the dead body of the deceased lying near the house of M. Vemanna, it cannot be presumed that the accused must have committed death of the deceased unless all the links in the chain should ably be established by the prosecution. In addition to the evidence of P.W.1, the prosecution has relied on the evidence of P.W.5, who deposed that on the night of the incident, the accused and deceased came to his shop and when A-2 and the deceased stood outside of the shop A-1 came to him and purchased three quarter bottles of alcohol. In the cross-examination, he categorically admitted that he does not remember the details of other customers that came to his shop on that day and also the details of the brands of liquor sold by him. He further admitted that he cannot identify all the persons who come to his shop for liquor. On careful scrutiny of the evidence of P.W.5, we are of the opinion that this witness is a planted witness to corroborate the evidence of P.W.1 about A-1 taking the deceased from her house. Further, the prosecution has not adduced any evidence as to the relationship between the accused persons themselves, as well relationship between the accused persons and the deceased except adducing evidence that the deceased had illicit intimacy with the wife of A-2 and for that reason he had a grudge against the deceased. We do not find any substantive evidence to connect the accused with the commission of crime. Further, we are of the opinion that the prosecution has failed to prove, beyond reasonable doubt, that the appellant had committed the offence of murder, and it is a fit case where the appellants/A-1 and A-2 are entitled to be given the benefit of doubt. Accordingly, this appeal is allowed setting aside the conviction and sentence recorded by II Additional District and Sessions Judge, Chittoor at Madanapalli in SC No.304/2006 against the appellants/A-1 and A-2 for the offence under Section 302 IPC and they are acquitted of the same. The fine amount paid by them, if any, is directed to be refunded. They shall be set at liberty forthwith, if they are not required in any other case. --------------------- A.GOPAL REDDY,J ----------------- RAJA ELANGO,J DT.12-7-2011 Kmr