HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1694 OF 2007 Dated:27-07-2011 BETWEEN: Goolla Thirupathaiah …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1694 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) Sole appellant was put on trial for the offence punishable under Sections 302 I.P.C. in S.C. No.477 of 2006 on the file of Sessions Judge, Mahabubnagar. By judgment dated 5.12.2007 he was convicted for the said offence and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for six months. 2. The gravamen of the charge against the appellant-accused is that on 17.05.2006 at 11.00 hours at the well called ‘Jammikuna Bhavi’, at Salkalapoor Village did commit murder by intentionally causing the death of Devamma (hereinafter called as ‘deceased’) by pushing her into the well from the back side. 3. The story of the prosecution as narrated during the course of trial is as under: P.W.1 is the brother and P.W.3 is the husband of the deceased. The deceased was blessed with two children. On 17.5.2006 at about 11.00 hours the deceased along with G.Laxmamma-P.W.2 left her house in order to wash clothes at the agricultural well called as “Jammikunta Bavi”. At the well some other villagers and the accused were present. While the deceased and others were washing their clothes, accused and others were swimming in the well. After completion of washing the clothes, the deceased stood on the edge of the well and watching the persons who were swimming in the well. All of a sudden the accused went to the deceased and intentionally pushed her into the well from the backside knowing that she does not know swimming. Even after pushing her into the well the accused neither tried to fish out her from the well nor tried to survive her life. Immediately, P.W.2 rushed to the house of the deceased and informed the said incident to P.W.3, the husband of the deceased. Later one Gaddameedi Bheemaiah and Wadde Swamy lifted the dead body of the deceased from the well. On 18.5.2006 at 9.30 hours P.W.1 gave a report under Ex.P.1 to the police, on which basis, P.W.10-Sub-Inspector of Police registered a case in Crime NO.24 of 2006 and issued Ex.P.7-F.I.R. Then he recorded the statement of P.W.1 in the police Station. He rushed to the scene of offence, conducted scene of offence panchanama in the presence of P.W.8 and others, conducted inquest over the dead body of the deceased and sent the dead body to Government Hospital, Wanaparthy for post-mortem examination. He recorded the statements of P.Ws.1 to 4 and others. P.W.11-Inspector of Police took up further investigation. He visited the scene of offence, examined P.Ws.5 to 7 and recorded their statements. On 21.5.2006 he apprehended the accused. Dr.Srinivasulu conducted autopsy over the dead body of the deceased and issued Ex.P.6-post-mortem report. He opined that the deceased died due to Asphyxia due to drowning. After completion of investigation, P.W.11 laid the charge sheet against the accused. On committal, learned Sessions Judge framed the charge against the accused, read over the same and explained him in Telugu. The accused denied the charge and claimed to be tried. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 11 and marked Exs.P.1 to P.8. On behalf of defence, no oral or documentary evidence was adduced. 5. P.W.1 is the resident of the same village and brother of the deceased, who is not an eyewitness to the occurrence. He deposed that he was informed over telephone that the accused pushed the deceased into the well. Immediately he rushed to the spot and lodged the complaint-Ex.P.1 basing on the said information. P.W.2, who is projected as an eyewitness to the occurrence stated in her chief-examination that while she was swimming in the well, the deceased was in the well and the water is at the knee level. The deceased was standing at the steps in the well. Suddenly, the accused pushed the deceased into the well and the deceased did not come back. Immediately, she informed the said incident to the husband of the deceased-P.W.3 and her family members. P.W.3 is not an eyewitness to the occurrence. He came to know about the occurrence by 3.00 p.m. on the said date. P.W.4 is also not an eyewitness to the occurrence and he was informed about the said occurrence by the villagers. He rushed to the well, searched for the deceased and lifted the body of the deceased from the well. P.Ws.5 to 7 have not supported the case of the prosecution and were declared hostile. P.W.8, who is a resident of the same village, is the attestor to the inquest panchanama-Ex.P.5 prepared by the investigating officer. P.W.9 is the doctor, who was examined on behalf of the doctor who conducted inquest over the dead body of the deceased. The following injuries were found on the body of the deceased: “1. Both right and left lungs are voluminous and bubbles are coming out. 2. Heart contains 20 Ml of blood on cross-section. 3. Liver congested bluish in colur. 4. Spleen congested. 5. Both kidneys right and left on cross section congested. ” The said doctor issued Ex.P.6-post-mortem certificate opining that the death of the deceased was due to Asphyxia due to drowning. 6. P.W.10 is the Sub-Inspector of Police who on receipt of complaint-Ex.P.1 from P.W.1 on 18.5.2006 at 9.30 a.m. registered the case for the offence under Section 302 I.P.C. He immediately rushed to the house of the deceased, examined the witnesses, conducted inquest over the dead body of the deceased in the presence of witnesses and sent the dead body to the Government Hospital for post-mortem examination. P.W.11 is the Inspector of Police who took up further investigation on the basis of F.I.R. registered by P.W.10 and laid the charge sheet. 7. The learned Sessions Judge after appreciation of oral and documentary evidence brought on record particularly the evidence of P.W.2, who is projected as eyewitness to the occurrence, convicted and sentenced the appellant-accused as aforementioned. 8. Heard the learned counsel for the appellant and also the learned Public Prosecutor who have taken us through the entire evidence and the findings recorded by the learned Sessions Judge. 9. While convicting the accused-appellant, the learned Sessions Judge mainly relied on the evidence of P.W.2. Therefore, we are of the view that the evidence of P.W.2 is to be analyzed and scrutinized with more care and caution. According to her, the occurrence was happened at 12.00 Noon on 17.5.2006, but she was examined by the police on the next day at 9.30 a.m. If the contention of P.W.2 is admitted that she informed the villagers and other persons in the village on the same day about the occurrence, no explanation is forthcoming by the prosecution why the first information report was registered by P.W.10 on the next day at 9.30 a.m. i.e. nearly 24 hours after the occurrence. In her chief-examination, P.W.2 deposed as under: “…………….I was swimming in the well. The deceased was also in the well, and the water is at the knee level. The deceased was standing at the steps in the well. The accused pushed the deceased into the well and the deceased did not come back.” In the said evidence, she has not stated who is the accused, in what way she knows the accused, what is the name of the accused and where he resides. Without informing any such information, simply she stated that she knows the accused. It is the duty of the prosecution to establish through admissible evidence or by elaborating the ground on which she knows the accused who involved in the crime. In the present case, totally the same is missing and further in the cross-examination she informed that she left the place only at 3.00 p.m. even though the occurrence was happened at 12.00 Noon and she was also not aware the cause for the crime and she has not stated any motive for the accused to commit the crime. Further she has stated that she informed the said incident to the husband of the deceased, but the husband of the deceased has not lodged the complaint. She has not stated the reason for the same. Further P.W.10 who is the first investigating officer admits in the cross-examination that there are no steps in the well. But whereas, as already observed, P.W.2 stated that while the deceased was standing at the steps of the well, accused pushed her into the well. The said discrepancy is not explained by the prosecution. The delay in lodging the complaint is also not explained by the prosecution. It appears, in order to fix the appellant as an accused, the investigation agency introduced P.W.2 as an eyewitness to the occurrence. Further though one more person by name Venkatamma is also stated to be an eyewitness to the occurrence, she was not examined by the prosecution. In view of the above, the evidence of P.W.2 is not trustworthy and the said evidence is also not inspiring the confidence of this Court. Therefore, it is highly unsafe to maintain the conviction against the accused for the offence under Section 302 I.P.C. basing on the evidence of P.W.2. Hence, we are inclined to interfere with the judgment and order of the trial Court. 10. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant-sole accused for the offence under Section 302 I.P.C. by Sessions Jude, Mahabubnagar in S.C.No.477 of 2006 are hereby set aside. The appellant is found not guilty of the said charge and he is acquitted of the same. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant shall be refunded. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 27, 2011 Tsr.