THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal Nos.385 and 497 of 2007 Date: 16-11-2009 Criminal Appeal No.385 of 2007: Between Ugumudi Ravindra … Appellant/Accused and State of A.P., Rep. by P.P., High Court, Hyderabad … Respondent Criminal Appeal No.497 of 2007: Between Ugumudi Ravindra … Appellant/Accused and The State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal Nos.385 and 497 of 2007 Oral Common Judgment: (per D.S.R.Varma, J.) Heard Sri C.Praveen Kumar, learned Counsel appearing for the appellant-sole accused and the learned Public Prosecutor appearing for the respondent-State. 2. This appeal is directed against the judgment dated 29-12- 2006 in Sessions Case No.121 of 2006 passed by the VI Additional Sessions Judge (Fast Track Court), Tirupati, Chittoor district in convicting the accused for the offence under Section 302 of IPC and sentencing him to imprisonment for life and also to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for one month. 3. The case of prosecution, in brief, is that P.W.2 and the accused are the wife and the husband. The accused doubted the fidelity of P.W.2. On the fateful day i.e., on 31-12-2005 P.W.2 left for coolie work in the morning and the accused was at home along with their son, by name Yugandhar, aged about two years (hereinafter referred to as ‘the deceased’). When she returned home at 12 noon, she found the child dead and his neck was found to have been throttled. Then P.W.2 reported the same to P.W.1, Village Talari, who gave Ex.P-1 report and investigation was pressed into service and after completion of all the formalities, a charge-sheet was filed against the accused. 4. The trial Court framed a charge under Section 302 of IPC against the accused, to which he denied the same and claimed to be tried. 5. In order to substantiate its case, the prosecution has examined P.Ws.1 to 10 and marked Exs.P-1 to P-7 and also M.Os.1 and 2. 6. The trial Court, having gone into the evidence on record passed the impugned judgment. 7. Challenging the said judgment of conviction and sentence, the present appeal has been preferred by the accused. 8. Now, the point that arises for consideration in this appeal is - - whether the trial Court had considered the facts and circumstances of the case appropriately while convicting the accused ? 9. Point:- There are no eyewitnesses to the incident and the entire case of prosecution rests on the circumstantial evidence. The crucial evidence is that of P.W.2, the mother of the deceased child. She deposed that on the date of incident she left for coolie work leaving her child and husband at home. The husband also goes for coolie work but that day he did not go. By the time she returned home at 12 noon, she found the child dead. 10. The important aspect to be noticed is that P.W.2 did not state that at that time i.e., at 12 noon when she returned home the accused also was found in the hut. Therefore, the presence of accused was not there at the time when the child was found dead. The exact time of death of the deceased is not clear. Of course, even if we go through medical evidence, precisely the time of death of child cannot be fixed because of the time gap between P.W.2 left the home for coolie work and coming back home at 12 noon. After all, the place in which the accused, his wife P.W.2 and their deceased child were living is only a hut. Therefore, basing only on the evidence of P.W.2, it is difficult to point out the accused as responsible for the death of deceased. In other words, the evidence of P.W.2 is very vague and not capable of driving the Court at any firm conclusion nor capable of arousing any confidence in the mind of the Court. 11. Other interesting aspect that is on record is that initially P.W.2 was examined and was also cross-examined, again she was recalled at the instance of the accused for further cross-examination. When she deposed for the second time after such recalling, she took almost a ‘U’ turn and stated that she did not leave the child at her home and on the contrary, she stated that she left the child at the house of her mother staying at different place. As a result, she was totally ruling out the possibility of involvement of the accused in the offence. 12. In this regard, we are of the view that it is incomprehensible as to how the trial Court could recall P.W.2 for further cross-examination and what were the reasons put forth before the trial Court by the defence to recall P.W.2. In this context, it is to be further noticed that the said recalling petition was filed after four months of the examination of P.W.2, that too after the examination of the accused under Section 313 of Cr.P.C. 13. In our considered view, the course of action adopted by the trial Court in permitting P.W.2 into the witness-box for the second time at the instance of the accused is totally unsatisfactory. No absolute or clear reasons were put forth by the defence before the trial Court. We may also go to the extent of saying that mere asking for recalling of a witness for further cross-examination, in such cases, can be resorted to. Once a witness deposed to certain extent, the stand taken by the said witness shall be allowed to remain on record. If the present course of action is permitted to be taken, there is every possibility that witnesses may change their version or turn hostile. In a way, the witnesses are very likely to get influenced for various reasons including coercion, force etc. 14. Therefore, virtually P.W.2 was not protected and on the other hand, she was thrown for further cross-examination after a long gap of time i.e., four months, that too after the examination of the accused under Section 313 Cr.P.C. The Courts ought not have permitted such course of action to be adopted by the defence. If that is to happen, we are of the strong view that the case of prosecution would get frustrated in all probability. At least, there is every likelihood to so happen. Therefore, we are not prepared to take into account the further cross-examination of P.W.2 though she was declared hostile for any purpose. 15. However, having regard to the facts and circumstances, particularly in view of our earlier observations that the evidence of P.W.2 made at the earliest point of time before the trial Court was insufficient and weak piece of evidence, the only circumstance that the accused was present when P.W.2 left the home, is not sufficient and a strong circumstance in order to connect the accused with the offence. 16. The further important aspect, as already noticed, was that when P.W.2 returned home at 12 noon, she did not find the accused there. These two circumstances are not compatible with each other. Even though the accusation is true, the evidence on record is not at all either sufficient or touching the conscious of the Court before arriving at the conclusion that the accused is responsible for the death of deceased. 17. No doubt, the only other relevant evidence is that of the doctor examined as P.W.8, who opined that the death of the child was due to throttling and burn injuries. The kind of burn injuries and the source of causing the burn injuries are also not clear from the evidence of the prosecution. So, the circumstances if viewed in its entirety, the cumulative effect would only be that the accused could not be held to be the sole responsible person for the offence. 18. It is settled law that the circumstantial evidence should be strong enough to connect the accused with the offence. There shall not be any losing or missing link in the chain of the circumstances. 19. As already noticed, couple of circumstances that are on record are very weak circumstances, at least it is not the case of prosecution that the accused was the person, who was seen last in the association of the child. Of course, the evidence of P.W.2 was to the effect that when she left for coolie work in the morning, the accused was in the house along with the child. That does not mean that at the actual time of death of deceased, the accused was present in the house. As already pointed out, it is a small hut and in those circumstances, the accused also cannot be expected to remain in the hut all through from morning till the time of the death of deceased. 20. In view of the above doubtful circumstances, it cannot be held that the circumstances on record are capable of point out the accusing finger at the accused only. 21. For the foregoing, we cannot agree with the reasoning assigned by the trial court while convicting and sentencing the accused. 22. In the result, Criminal Appeal No.385 of 2007 is allowed and the impugned judgment of conviction and sentence, dated 29-12- 2006, in Sessions Case No.121 of 2006, passed by the VI Additional Sessions Judge (Fast Track Court), Tirupathi, Chittoor district is set aside and consequently, the appellant-sole accused is acquitted and he shall be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. 23. Criminal Appeal No.497 of 2007, which was filed at a latter point of time by the same accused through the A.P. High Court Legal Services Committee, Hyderabad, is liable to be dismissed as non est and accordingly the same is dismissed as non est in view of the disposal of the earlier appeal Criminal Appeal No.385 of 2007, which was filed through a learned Counsel. ___________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 16th November, 2009. Ak