HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO Crl.A. No.255 of 2008 Dated: 13-12-2011 Between: Methukumilli Srinivasa Rao @ Srinu …Appellant AND State represented by Inspector of Police, Hanuman Junction, Krishna District. Respondent. This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R.KANTHA RAO Crl.A. No.255 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This appeal is preferred by the sole accused against the convictions and sentences imposed by Sessions Judge, Krishna Division, Machilipatnam in S.C.No.209 of 2006 dated 6.2.2008. He was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for three months. He was also convicted for the offence under Section 201 IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for three months. Both the sentences were ordered to run concurrently. The accusation made against the appellant-accused is that on 13.7.2004 at 6.30 p.m. he tied a stone to the waist of one Konatham Kotaiah (hereinafter referred to as ‘deceased’) and threw him into the well situated in the mango garden of Jalipathi Venkatarama Rao in Vadlamanu village of Agiripalli Mandal with the aid of a nylon thread and thereby committed the offences under Sections 302 and 201 IPC. The story of the prosecution as narrated during the course of trial is as under: On 17.7.2004 at 3.00 p.m. P.Ws.2 and 3 went to village Secretary- P.W.1 and informed him that a dead body was floating in the ground well situated in the mango garden of P.W.3. Then all the three went to Agiripalli Police Station and P.W.1 gave a report under Ex.P.1 to Head Constable. Thereupon all of them went to the mango garden but as it became dark, they again visited the well on the next day i.e. on 18.7.2004 accompanied by Sarpanch of the village. The dead body of the deceased was fished out from the well with the help of P.W.4 and another. A report under Ex.P.2 was prepared which was signed by P.W.1 and the Sarpanch. P.Ws.3 and 2 and blood relations of the deceased were examined. Inquest was held by the Head Constable between 3 and 4.30 p.m. and the inquest report scribed by P.W.1 is Ex.P.3. The dead body was in unidentifiable position as the body was fully decomposed. The dead body was sent for post-mortem examination. On the basis of Ex.P.4, A.S.I.-P.W.14 registered a case in Crime NO.47 of 2004 and issued altered F.I.R.-Ex.P.19 on 23.7.2004. Civil Assistant Surgeon, Area Hospital, Nuzvid conducted autopsy over the dead body on 19.7.2004 at 11.00 a.m. and she found putrefactive changes and she noticed external injuries. She opined that the death was due to asphyxia and the death must have been occurred 4 to 5 days prior to post-mortem examination. P.W.5-wife of the deceased went to hospital and identified the dead body. While so, on 23.7.2004 the accused approached Panchayat Secretary of Putrela (P.W.6), who was a stranger to him and while he was in the office, the accused fell on his feet and requested to arrange compromise with the wife of the deceased. He confessed to have killed the deceased. Then P.W.6 took the accused to Police Station and handed over to police with a report under Ex.P.4. Inspector of Police-P.W.15 took up further investigation, examined P.W.6 and others, recorded the confessional statement of the accused in the presence of mediators and he proceeded to the scene of offence along with the accused and mediators. At the scene of offence, the accused brought out a stone from the well with the help of P.W.4 and another which was seized under a cover of panchanama. A gunny bag lying at a distance of 10 feet from the well was also seized. Later a scooter, which was used by the accused was also seized from the house of the accused. After completion of investigation, P.W.15 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed charges against the accused, read over to him in Telugu and the accused denied the charges and claimed to be tried. In support of its case, prosecution examined P.Ws.1 to 15 and marked Exs.P.1 to P.23 and exhibited M.Os.1 to 7. On behalf of accused, no oral or documentary evidence was adduced. Learned Sessions Judge, on appreciation of oral and documentary evidence, particularly accepting the evidence of P.W.6, before whom, extra-judicial confession is said to have been made by the accused and basing on recoveries of M.Os.4 to 7 in pursuance of confessional statement made by the accused, came to the conclusion that the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt and accordingly convicted and sentenced the accused as aforementioned. Sri T. Bal Reddy, learned senior counsel appearing for the appellant-accused contends that the prosecution miserably failed to connect the accused with the commission of offence, that the prosecution failed to establish each circumstance on the touch-stone of the principles laid down by the Apex Court. According to P.W.6, the accused, who is a stranger, came to him and narrated the incident, but the prosecution failed to establish as to how the accused reposed confidence upon P.W.6 to make such a confession. Further according to confession of accused and as per the evidence of P.W.6, the deceased borrowed a sum of Rs.1,30,000/- from accused, but the promissory note under Ex.P.7 said to have been executed by the deceased in favour of accused is only for Rs.31,000/- in May, 2004 and that the said promissory note was also not obtained immediately prior to the commission of offence and therefore, there is no necessity for the accused to kill the deceased. Further P.Ws.7 and 8 have not supported the case of the prosecution about their last seeing the deceased in the company of accused on 13.7.2004 or on 11.7.2004 as projected by the prosecution. The evidence of P.W.5-wife of the deceased is also no useful to the prosecution since she deposed that her husband left the house wearing white shirt, chucks lungi and green towel, but whereas, the deceased was found wearing green colour shirt, snuff colour lungi and according to her one Ramadevi told her that the deceased left his clothes at her house and took the clothes of accused. But the prosecution neither seized the clothes of the deceased from the house of said Ramadevi nor examined her. In view of the mitigating circumstances, the learned counsel sought to acquit the accused by extending benefit of doubt. On the other hand, learned Public Prosecutor sought to sustain the convictions and sentences imposed on the accused contending that since P.W.6 was Panchayat Secretary, the accused might have reposed confidence on him because of his holding the office to come to his rescue and therefore, he might have confessed before him about the commission of offence. That apart, basing on the confessional statement made by the accused, a boulder was fished out from the well that was tied to the dead body of the deceased and a gunny bag was also seized from the scene of offence. A scooter owned by P.W.13 was also seized from the house of accused. Admittedly, there are no eyewitnesses to the occurrence. The entire case rests upon the circumstantial evidence. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the law laid down by the Apex Court in a decision reported in Padala veera Reddy v. State of A.P. (AIR 1990 SC 79): “(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.” Bearing the above principles in mind, it is to be seen whether the appellant is the assailant of the deceased or not. P.W.1 is Panchayat Secretary for the village of Putrela. On coming to know of lying of dead body of the deceased in the well of P.W.3, he sent a report under Ex.P.1 to the police, on which basis a case was registered and investigation was taken up. He is also a panchayatdar to the inquest report-Ex.P.3 and in his presence, M.Os.2 to 4 were seized under Ex.P.2. P.W.2 is the person, who noticed the dead body of the deceased in the well of P.W.3. He deposed that he went to cooli work to the mango garden of P.W.3 for cutting mango trees and while he was cutting mango trees, he got some foul smell from the well. Immediately, he went to Ravicherla village and called P.W.3, brought him to the garden and both of them went near the well and noticed the dead body of the deceased in the well. They went to P.W.1 and informed about the dead body. Thus the evidence of P.Ws.1 to 3 is to the effect that they noticed the dead body of the deceased in the well of P.W.3. P.W.4 is the person who fished out the dead body of the deceased from the well on being called by the police. P.W.5 is the wife of the deceased. She deposed that on 11.7.2004 the deceased went to Ravicherla to the house of accused for money. When he left the house, he was wearing white shirt, chucks lungi and green towel. As the deceased did not return, she telephoned to the accused to enquiry about the deceased and the accused informed her that the deceased left for Kalaturu. On Saturday, the accused came to her house and informed her that he gave money to the deceased and sent him and enquiry about the deceased. She informed him that the deceased did not come back. On Sunday, her sister-in-law, Raghavamma and her daughter-Ramadevi came to her and asked her to come to Government Hospital, Nuzvid to see a dead body and she went there and identified the dead body as that of her husband. On the dead body, she noticed green colour shirt and snuff colour lungi. Ramadevi told her that the deceased left his clothes at their house and took the clothes of accused. Here it is to be noticed that the clothes of the deceased were not recovered from the house of Ramadevi. P.W.6-Panchayat Secretary is the important witness, who is stated to have recorded the extra judicial confession of the accused under Ex.P.4. He deposed that while he was attending to his work on 23.7.2004, an unidentified person (accused) came to him, enquired about him and when he was about to touch his feet, he enquired as to why he was doing so. On that, he replied that he committed a small mistake and stated that he is resident of Patha Ravicherla village, that his relative-deceased borrowed Rs.40,000/- on first occasion under a pronote and Rs.20,000/- towards she-buffaloes, another sum of Rs.70,000/- at the time of his daughter’s marriage and that the deceased again came to him on 11.7.2004 and requested for some more money. On that he retained the deceased with him till 13.7.2004 and on that day, after making him to consume liquor, he took the deceased on his scooter to a well near Soodigattu and there he killed him, tied a stone to the dead body and threw it into a well. On hearing the entire version of accused, himself and village servant took the accused along with them to Agiripalli Police Station and handed over him to the police with a report-Ex.P.4, which was signed by himself, his village servant and one Krishnarao. He admitted that the distance between his village and Vadlamanu village is about 40 to 50 K.Ms. They reached Agiripalli Police Station between 2 and 3 p.m. Ex.P.4 was prepared between 2.30 and 3.30 p.m. All the three signed on Ex.P.4 at one time and he did not question the accused anything in the police station. P.W.7 is the person who last seen the deceased in the company of the accused at his tea stall on 13.7.2004 and he gave Rs.100/- to the deceased and then both of them went away on a scooter. But as P.W.7 has not supported the case of the prosecution, he was declared hostile. P.W.8 was also declared hostile. P.W.9 is scribe to the promissory note-Ex.P.7, whereunder the deceased allegedly borrowed a sum of Rs.31,000/- from the accused. P.W.11 is the doctor, who conducted post-mortem examination over the dead body of the deceased on 19.7.2004 and issued Ex.P.14-post-mortem report and final report opinion under Ex.P.17 on the basis of RFSL report under Ex.P.15 and expert opinion under Ex.P.16. According to her, the cause of death was due to asphyxia due to drowning. P.W.12 was also declared hostile. P.W.13 was examined by the prosecution to show that the accused and deceased approached him, requested him for borrowing money and when he stated that he had no money, they went away and when he enquired about his scooter-M.O.7, which was taken by the accused, he replied that he would send it after 5 or 6 days. He admitted in the cross-examination that the scooter is not registered in his name and it is standing in the name of his father and that the police called him 20 days after taking away his scooter by them and the police did not show the scooter to him till his deposition. He did not inform to the police that the scooter is in the name of his father. P.W.14 is Assistant Sub-Inspector of Police admitted that he has not recorded the statements of the three persons who came to the police station with Ex.P.4-confession of the accused recorded by P.W.6 and that the signature of the accused is not there on Ex.P.4. Basing on Ex.P.4, he altered section of law from 174 Cr.P.C. to 302 and 202 IPC and issued altered FIR-Ex.P.19. He admitted that he has not questioned the accused after receiving Ex.P.4 and he has also not enquired with the accused as to the correctness of contents of Ex.P.4. P.W.15 is the investigating officer. He deposed that after alteration of section of law, he took up investigation on 23.7.2004, visited the police station, received a copy of altered FIR, he examined the witnesses including P.W.6 and recorded their statements. He recorded the confessional statement of the accused and in pursuance of said confessional statement, he proceeded along with team and accused to the scene of offence on the same day and P.W.4 and others fished out one stone from the well where the dead body was found and the same was seized under a cover of mediators’ report. A gunny bag was also seized at a distance of 10 feet from the said well and they were identified by the accused. From there he proceeded to Ravicherla and seized the scooter-M.O.7 which was used by the accused in the commission of offence. In the cross-examination, he deposed that the head constable informed him that after making enquiry with some persons, he registered the FIR on 18.7.2004 but he does not know whom he enquired and whom he examined. On 18.7.2004 at 10.00 a.m. no stone was recovered by P.W.4 and another. From the above evidence, the prosecution, by examining the doctor-P.W.11, who conducted post-mortem examination and issued Ex.P.14 could only establish that the deceased died of asphyxia. Further the evidence of P.W.13 does not establish that the accused and deceased were last seen together on 13.7.2004, but he only stated that he lent his scooter to the accused prior to the said date and on the same scooter the accused and deceased came to him on one day in July, 2004. The fact remains that he has not demanded for return of the scooter from the accused nor claimed the scooter by moving the Magistrate for release of the vehicle in his favour. Till he was examined in the Court on 15.10.2007, he has not made any effort to get back his scooter. Therefore, the evidence of P.W.13 is of no use. P.W.7, who was sought to be examined to prove that the accused and deceased together visited his tea stall on 13.7.2004 and he gave Rs.100/- to the accused and deceased, has not supported the case of the prosecution and was declared hostile. Thus the main circumstance relied on by the prosecution to prove that the deceased was last seen in the company of the accused has also not been established. Then the only evidence available is P.W.6, before whom the accused is said to have made confession. Law is well settled that when the confession is made before a stranger, whom the accused does not know earlier, the same requires some corroboration (see Koki Prabhakara Reddy and others v. State of Andhra Pradesh 2007 Crl.Law Journal 263). According to P.W.6, the statement of accused is recorded under Ex.P.4, but his signature has not been obtained on it but only P.W.6 and two more persons signed on it. According to P.W.6, they reached Agiripalli Police Station between 2.00 and 3.00 p.m. and Ex.P.4-statement of accused was prepared between 2.30 p.m. and 3.30 p.m., which obviously means that it was prepared in the police station. According to P.W.14, at 2.30 p.m. while he was in police station, P.W.6 and two others came to the station along with accused and presented the report basing on which, he altered section of law. But he has not recorded the statement of those three persons, who visited the police station nor he questioned the accused about Ex.P.4-statement and that all the three persons remained in the police station till the arrival of P.W.15. P.W.15 stated that he visited the police station at 2.30 p.m. on 23.7.2004, received the altered copy of FIR and he examined P.W.6 and others and recorded their statements. Therefore, P.W.6 recording the statement of accused earlier to his coming to the police station does not arise. The alleged confessional statement of accused might have been prepared in the police station as spoken to by P.W.6. Therefore, the alleged extra judicial confessional statement of the accused recorded in the police station cannot be relied upon. Further according to prosecution, a stone was tied to the dead body of the deceased and threw it into the well on 13.7.2004 and the dead body was seen floating on 17.7.2004. As per the evidence brought on record, P.W.4 tied a rope to a cot on all four sides and fished out the dead body from the well. But he has not stated about finding out a nylon rope tied to the dead body of the deceased. The evidence of P.W.5 also does not lend corroboration with regard to the clothes wore by the deceased at the time of his leaving the house and on the other hand, he was seen in different clothes when his dead body was found in the well. In this regard, the prosecution miserably failed to produce any evidence about changing of the dress by the deceased at the house of the accused nor it recovered the clothes of deceased from the house of the accused to connect him with the commission of offence. Under these circumstances, it is highly unsafe to accept the evidence of prosecution for convicting the accused solely basing on so-called extra judicial confession. In view of the mitigating circumstances, the accused is entitled for acquittal by extending benefit of doubt. In the result, the Criminal Appeal is allowed and the convictions and sentences imposed on the appellant-accused by Sessions Judge, Krishna Division, Machilipatnam in S.C.No.209 of 2006, dated 6.2.2008 are hereby set aside. The appellant is found not guilty of the charges with which he stood charged 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.) _______________ (R.KANTHA RAO, J.) 13th DECEMBER, 2011 TSR