IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH AND THE HON'BLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL APPEAL No. 92 OF 2008 Between: State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant AND Kinthala Kesava Rao .....Respondent The Court made the following : JUDGMENT: (per THE HON’BLE SRI JUSTICE P.SWAROOP REDDY) This appeal is filed by the State against the judgment dated 4.10.2005 in Sessions Case No. 133 of 2001 on the file of the II Addl. District & Sessions judge (Fast Track Court), Srikakulam. The sole accused, a boy, was charge sheeted for the offences under Secs.302 and 201 IPC. The prosecution case is that the deceased and the accused were residents of Tiddimi village, Pathapatnam Mandal, Srikakulam District. The accused developed intimacy with PW-9 and sometime prior to the date of incident i.e. on 18.6.2001, the deceased saw PW-9 and accused together near the stream. The accused apprehended that the deceased may reveal the information to the villagers and wanted to eliminate him. On the date of incident, it is alleged that the accused took the deceased to the outskirts of the village, killed him and threw him in a well by tying a boulder to his body so that it may not float on the water. As the deceased did not return home, parents and the villagers searched for him and his body was located. Thus, the accused has allegedly killed the deceased and in order to conceal the offence, threw the dead body in the well by tying a boulder. Thus committed the offence under Sec.302 as well as Sec. 201 IPC. Charges were framed for the offences under Sec. 302 and 201 IPC. The accused pleaded not guilty. On behalf of prosecution, PWs. 1 to 17 were examined and Exs.P-1 to P-8 were marked. No oral evidence was let in on behalf of the accused but Ex.D-1, a portion of 161 Cr. P.C. statement of PW-6 was marked. On the basis of the above material, the trial court found that the prosecution has not proved guilt of the accused beyond reasonable doubt and acquitted the accused. Aggrieved by the same, the State filed the present criminal appeal, as already referred. It is contended by the learned Public Prosecutor that though it is a case of circumstantial evidence, there is material in the shape of evidence of PW-7 about the motive for the accused to kill the deceased as PW-7 stated that himself and the deceased have seen the accused in the company of PW-9 and in fact the accused called him also to second show movie, etc. The evidence of PW-7 appears to be that the intention of the accused was to eliminate him too. Learned Public Prosecutor also contends that PWs. 7, 10 and 11 have seen the accused and the deceased going towards the outskirts of the village on the evening of 18.6.2001 and thereafter the deceased was found dead on the next morning. Thus there is material to show that it was the accused and accused alone who had taken the deceased to an isolated place and killed him. The evidence of PW-16, Medical Officer, reveals that post mortem was conducted by one Dr. Durga Nageswara Prasad, whose whereabouts are not known, that they worked together for some time at Pathapatnam at Community Health Centre, that he is not sure whether he would be able to identify the handwriting and signature of the said doctor, Dr. Durga Nageswara Prasad. It is recorded in the deposition that after seeing Ex.P-7, Post Mortem Certificate, the witness was unable to confirm whether the document is in the handwriting of the said doctor and the signature is that of the said doctor i.e. Dr. Durga Nageswara Prasad. This witness, PW-16, has further stated that as could be seen from the document – Ex.P-7, shown to him, it discloses that Dr. Durga Nageswara Prasad conducted post mortem over the body of the deceased Dola Sreenu and as per Ex.P-7 there were transversely placed ligature marks around hyoid cartilage and there were some other injuries and the death was due to asphyxia due to strangulation. As per the prosecution case, the body of the deceased was found in a well tied to a boulder and there is no serious dispute about homicidal death of the deceased. Though post mortem doctor is not examined and though PW-16 could not identify the signature of post mortem doctor, PW-15, Pharmacist, has identified the signature of the post mortem doctor. However, it is not very significant as to whether the post mortem was conducted by doctor Durga Nageswara Prasad, as there is no doubt about the homicidal death of the deceased on account of asphyxia, even as per inquest report Ex.P-2. The question is whether it was the accused that has caused death of the deceased? As already stated, it is a case of circumstantial evidence. None has seen the accused killing the deceased. Coming to motive part, the evidence of PW-7 is that he knows the deceased. By the date of death of the deceased he was grazing cattle. Ten days prior to the date of death of the deceased, himself (PW-7) and the deceased saw the accused and PW-9 near a stream at about 4.00 p.m. and thereafter the accused invited him to come to second show movie but as he asked him to come alone to witness the second show, he did not go due to fear. Thereafter, he became sick for five days. He stated that the accused feared that they might disclose the intimacy to one an all. Other than this, there is nothing on record to show that there was any illegal intimacy between the accused and PW-9. PW-9 has turned hostile and PW- 7 did not say anything specific as to whether there was illegal intimacy between PW-9 and the accused. The words used by him are “…About ten days prior to the death of the deceased, myself and the deceased saw the accused and Ramanamma (LW-12) near a stream at about 4.00 p.m…” He did not speak of anything about other acts of intimacy. Mere presence of a girl and a boy near a stream would not irresistibly lead to the conclusion that there was definitely intimacy between them. In villages people are commonly found in fields under trees, near streams, etc. Men and women, boys and girls work together in fields too. Thus finding a man and woman together may not automatically lead to the conclusion that there was illicit intimacy between them unless some specific acts of intimacy are spoken about, atleast things like they being found in a room in suspicious circumstances. It is not known as to what is the perception of intimacy in the eyes of PW-7. Thus there is no acceptable evidence to say that there was any objectionable intimacy between PW-9 and the accused. As such, it cannot be said that there was a definite motive for the accused to kill the deceased. In a case based on circumstantial evidence, motive plays an important role which is lacking in this case. Coming to the circumstantial evidence of PWs. 3, 10 and 11, who claim to have seen the accused and the deceased going towards outskirts of the village on 18.6.2001 and on the next day, the deceased was found dead, by itself, in the absence of any evidence for motive, may not be sufficient to hold the accused guilty. Further more, the accused is a boy of 18 years and so was the deceased. It is difficult to believe that the accused planned and executed murder of the deceased, who was of the same age. At 18, people normally cannot be expected to be such crooks to commit murder over such small things. The post mortem reveals that the deceased had injuries, thereby showing that the deceased was overpowered and killed. It is not known as to whether it was possible for the accused who was of the same age as that of the deceased, to commit such an act. There is no evidence on record with regard to physical built up of accused and the deceased to say that the accused was in a position to overpower the deceased and kill the deceased by strangulation. It is not as if while the deceased was sleeping, the accused strangulated him with the help of a rope or any thing like that. Considering all the circumstances, where there is no conclusive evidence with regard to the motive and where the circumstantial evidence with regard to other aspects is insufficient, it is difficult to accept the prosecution case that it was the accused and accused alone that killed the deceased. That being so, we do not find any ground to interfere with the finding recorded by the trial court, acquitting the accused. The Criminal Appeal is accordingly dismissed. ________________ Justice V.Eswaraiah _____________________ Justice P.Swaroop Reddy December 22, 2010 MAS