THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.229 of 2007 Dated : 18.07.2011 Between : G.Gopal …. Appellant-accused No.1 a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.229 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant- accused No.1 questioning the judgment of conviction passed in Sessions Case No.171 of 2005 rendered by the III Additional Sessions Judge (I Fast Track Court), Nalgonda, on 06.12.2005 wherein A.1 and A.2 were convicted under Section 235 (2) Cr.P.C. for the offence punishable under Sections 302 and 379 of Indian Penal Code (for short ‘IPC’) against A.1 and Sections 379 and 201 IPC against A.2 sentencing A.1 to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for two months, for the offence punishable under Section 302 IPC and also to suffer rigorous imprisonment for two years for the offence punishable under Section 379 IPC. 2) The case of the Prosecution, in brief, is that the deceased Kowsalya being deserted by her husband was staying alone in a rented house at Rajapet eking livelihood by doing coolie work. Earlier, she used to attend labour work under A.1, who is a mason, and subsequently A.1 developed illegal intimacy with the deceased. Later, deceased purchased a house at Narsapur and started residing there and now and then she used to attend coolie work at Rajapet. A.1 also shifted his residence to Hyderabad and he also used to visit Rajapet frequently for collecting rents, etc. While so, on 07.12.2004 at 10.00 a.m. deceased came to Rajapet to attend some work and on the same day in the afternoon A.1 also came to Rajapet on some other work. In the evening hours, A.1 met the deceased in the village centre and the deceased asked A.1 to provide toddy and both went to the toddy shop of one Shankaraiah where both consumed toddy. At that time, A.1 having observed some gold and silver ornaments on the person of the deceased, hatched a plan to kill the deceased in order to commit theft of ornaments. In pursuance of the same, he invited the deceased to his house for dinner and accordingly A.1 and the deceased went to the house of A.1 where the deceased laid down on a cot due to intoxication and at about 2030 hours while the deceased was in sleep, deceased throttled her and committed theft of gold ear studs, gold ear sticks. Subsequently, he closed the doors of his house, went to bazaar and called A.2 for help with a promise to give share in the stolen property. A.1 and A.2 went back to the house of A.1, committed theft of two gold pusthelu, two silver anklets, silver mettelu from the person of the deceased, kept them in the house of A.1, tied the hands and legs of the deceased with a chunni, hanged the dead body to a big stick and shifted to the un-cultivated lands of one B.Narsimha Rao and left the dead body there in order to cause disappearance of evidence of the offence committed by them and untied the chunni and took the same along with stick to the house of A.1. On 08.12.2004 A.1 and A.2 sold out two gold pusthelu, silver anklets for Rs.1,640/- and shared the amount. Basing on the complaint of the brother-in-law of the deceased, Police registered a case in Crime No.58 of 2004 for the offence punishable under Sections 302, 379 and 201 of Indian Penal Code. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against A.1 and A.2 for the offence punishable under Sections 302, 379 and 201 IPC against A.1 and Sections 379 and 201 IPC against A.2 and the said charge sheet was numbered as P.R.C. No.14 of 2005 by the Additional Judicial Magistrate of First Class, Bhongir. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.171 of 2005. The learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 379 IPC against A.1 and Sections 379 and 201 IPC against A.2, in which, they denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 15 and marked Exs.P.1 to P.11 apart from marking MOs 1 to 9. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. Accused did not choose to adduce any oral and documentary evidence on their behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions Judge rendered the impugned judgment as stated above and the same is challenged before this Court by A.1 by way of filing the present appeal. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) PWs 1 to 3 are the relatives of the deceased, P.Ws 4 to 7 are the circumstantial witnesses, P.W.8 is the photographer, P.W.9 is also the circumstantial witness, PWs 10 and 11 are the panch witnesses for scene of offence and inquest panchanama and PW.12 is the panch witness for confession and recovery. P.W.13 is the doctor, who conducted autopsy over the dead body of the deceased, PWs 14 and 15 are the investigation officers. 8) The entire case of the Prosecution rests upon the circumstantial evidence of PWs 4, 5, 9 and 10. Admittedly, there are no eyewitnesses to the occurrence. It is not in dispute that the appellant and the deceased are known to each other. The deceased is already a married lady and deserted her husband. She knew the appellant prior to the occurrence since she worked under him earlier. Since both of them are known to each other, on the fateful day the deceased accompanied the appellant to the toddy shop of Shankaraiah and consumed toddy. Further on observing the jewels on the person of the deceased, A.1 decided to kill her to grab the said jewels since he is in need of money. 9) PW.4 deposed before the Court that he saw the appellant and the deceased at 5.00 p.m. on the previous day of occurrence and he informed the same to P.W.1 when he saw the dead body. P.W.5 also stated that he saw the appellant and the deceased when they came to his shop and asked for ‘Nalla’ for which he answered that the same is not available. According to the prosecution, these two witnesses are the persons those who last seen the deceased and the appellant together. But, on perusal of the evidence and other material, P.W.4 was examined by the Police on the next day at 4 O’ clock i.e. prior to registration of F.I.R. Further, these two witnesses have not stated how they know the appellant and the deceased prior to the incident. 10) P.W.9, who is a gold smith by profession, deposed before the Court that the appellant and another person pledged two gold pusthelu and two silver anklets with him and received Rs.1,640/- and he also stated that the investigation officer seized the said articles from his possession. The said articles were not identified by any of the prosecution witnesses, more particularly, PWs 1 to 3, who are the relatives of the deceased. Further, PWs 4 and 5, who alleged to have seen the deceased and appellant together lastly, also not identified the said jewels. Apart from that, P.W.9 has not stated as to how he know the accused, who belong to a different village, and what necessitated him to give such money on accused pledging the jewels. Further, P.W.9 has also admitted in cross- examination that he is not a pawn broker and he is not having any weighing machine to weigh the gold jewels. Only believing the words of the appellant and another person even without weighing the jewels and also without issuing any receipt for such jewels, he parted a sum of Rs.1,640/- to them, which is highly improbable and unbelievable. 11) P.W.12, who is a resident of Narsapur village, is a witness to the confession of the appellant, recovery of jewels from P.W.9 and also recovery of other stolen articles from the house of A.1. On the basis of the said confession, the investigation officer arrested the accused and filed charge sheet. 12) The doctor’s evidence is totally against the prosecution case. According to the prosecution, appellant and deceased went to a toddy shop in order to have toddy and also it is the case of the prosecution that after consuming toddy they went to the house of A.1, but the doctor P.W.13 in her evidence has categorically stated that the stomach of the deceased was found empty. The theory of the prosecution that the appellant and the deceased went to the toddy shop on the date of incident and PWs 4 and 5 witnessing the appellant and deceased is totally contrary to the said evidence adduced by the doctor. In a case solely based on the circumstantial evidence, it is the duty of the prosecution to prove its case beyond reasonable doubt. 13) Further, in this type of cases, the Supreme Court held that when a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.,[1] wherein at para 10 it was held as follows:- “(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.” 14) In the absence of any clinching evidence pointing towards the guilt of the appellant, this Court is of the view that it is highly unsafe to convict the appellant that too for an offence under Section 302 IPC, which is punishable with a minimum sentence of life imprisonment. The prosecution failed to establish the guilt of the appellant-accused for the offence punishable under Sections 302 and 379 IPC by adducing any corroborative evidence connecting him with the crime beyond all reasonable doubt. Hence, the impugned judgment needs to be interfered with. 15) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant-accused No.1 by the learned III Additional Sessions Judge (I Fast Track Court) at Nalgonda in Sessions Case No.171 of 2005 on 06.12.2005 for the offence punishable under Sections 302 and 379 of Indian Penal Code are hereby set aside and he is acquitted for the said charges. Appellant- A.1 be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 18th July, 2011 sur [1] AIR 1990 Supreme Court 79