IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.1038 OF 2007 Date:20-01-2011 Between:- Koyyada Ramulu .. Appellant/Accused And The State of A.P., Rep.by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. .. Respondent JUDGMENT:- (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The accused in Sessions Case No.441 of 2006 on the file of the I Additional Sessions Judge, Karimnagar, who was tried for offences under Sections 376, 302, 379 and 411 I.P.C. and convicted for the offences under Sections 376, 302 and 411 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- and in default, to suffer simple imprisonment for one month for the offence under Section 302 I.P.C., to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- and in default, to suffer simple imprisonment for one month for the offence under Section 376 I.P.C.; and to undergo rigorous imprisonment for six months for the offence under Section 411 I.P.C., is the appellant herein. 2. The case of the prosecution is that the deceased Nalla Bhagyamma is the daughter of P.W.1. The deceased and one Musipatla Narayana Reddy are having adjacent lands in the outskirts of Deshaipalli and the accused is the farm servant of Musipatla Narayana Reddy. The accused developed lust over the deceased and was waiting for the loneliness of the deceased and on 18-03-2005, at about 12.30 noon, when the deceased went to her maize field to irrigate water and to bring the grass, the accused went to toddy troves and consumed toddy at the shop of P.W.6 along with P.Ws.6 to 8 and during conversation, he said to have not claimed to leave any lady, whom he wishes to have and thereafter, all of them disbursed. At about 14.15 hours, the accused saw the deceased while she was washing her hands near the fields and taking her loneliness as an advantage, committed rape on her and subsequently, committed murder on her. The accused also snatched away the gold ornaments of the deceased. The deceased did not reach the house and later, P.Ws.2, 3 and 5 found the dead body at the field and P.W.1 lodged a complaint to the police, Veenavanka and it was registered as a case in Crime No.35 of 2005 under Sections 376 and 302 I.P.C. and investigated into. During the course of investigation, the statements of the witnesses were recorded. Panchanama of the scene was conducted, inquest was held over the dead body of the deceased and it was sent for post mortem examination. The swab of vaginal collection was preserved and after receipt of the report from the Forensic Science Laboratory examination, the doctor opined that the death was homicidal and there was evidence of rape. During the course of investigation, on 30-03-2005, the accused was apprehended at his house and he gave a confession about the commission of the offence and in pursuance of it, his clothes were seized. The accused was sent for remand. After completion of the investigation, the charge sheet is filed under Sections 376, 302 and 379 I.P.C. 3. The case was taken on file as P.R.C.No.32 of 2005 by the Judicial Magistrate of First Class, Huzurabad and committed the case to the Court of Sessions and made over to the Court of I Additional Sessions Judge, Karimnagar. 4. After appearance of the accused, the following charges are framed. When the said charges were read over and explained to him, he pleaded not guilty: “Firstly:- That you on the 18th day of March, 2005 at about 1415 hours in the maize field of Mushipatla Narayana Reddy situated at Deshaipalli (v) committed rape on Nalla Bagyamma, W/o.Jalpathi Reddy, aged 30 years, R/o.Deshaipalli village and thereby committed an offence punishable u/s.376 of the Indian Penal Code and within my cognizance. Secondly:- That you on the 18th day of November, 2004 at Mallial village, did commit murder of Nalla Bhagyamma, w/o.Jalpathi Reddy by intentionally causing her death by throttling and inflicting injury on her head with a stone and thereby committed an offence punishable u/s.302 of the Indian Penal Code and within my cognizance. Thirdly:- That you on the same day, time and place as mentioned in charge No.1 and during the course of same transaction committed theft of Gold Gopithadu intending to take dishonestly, out of the possession of the said Nalla Bhagyamma after killing her and that you thereby committed an offence punishable u/s.379 of the Indian Penal Code and within my cognizance”. 5. On behalf of the prosecution, P.Ws.1 to 14 were examined and marked Exs.P-1 to P-16 and M.Os.1 to14. 6. After the evidence of the prosecution is over, the accused was examined under Section 313 Cr.P.C. and no defence evidence is adduced. 7. After the arguments were heard, the case was reopened and a charge under Section 411 I.P.C. was framed and read over to the accused for which he pleaded not guilty. 8. After considering the evidence on record, the learned Sessions Judge found the accused guilty of the offence charged and accordingly convicted and sentenced him. Aggrieved by the said judgment, the present appeal is filed. 9. Heard Sri Ch.Dhanamjaya, learned counsel for the appellant and also the learned Public Prosecutor. 10. The points that arise for consideration are: “1) Whether the prosecution has proved that the accused committed rape and murder on the deceased? and 2) Whether the prosecution has established beyond all reasonable doubt the guilt of the accused for the said offences? and 3) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable?” 11. POINTS 1 to 3:- In support of the prosecution case, P.W.1, who is the mother of the deceased, spoke about the marriage of the deceased and the failure of the same and the deceased living with her. On the date of incident, the deceased is said to have gone to the fields but she did not return. Thereafter, they went to the fields and noticed the dead body of the deceased. She claims to have given the complaint-Ex.P-1 to the police and identified M.Os.1 to 3 as clothes of the deceased. The evidence of P.W.2, who is the sister of the deceased, is also in support of the facts spoken by P.W.1 and both the witnesses were cross examined by the learned counsel for the appellant. P.W.3 spoke about the reaching at the scene on hearing the cries of P.W.2 and noticing of the dead body of the deceased. The evidence of P.W.4 is about the taking of photos at the scene of offence. The evidence of P.W.5 is also about going to the scene after hearing the cries of P.W.2 and others and informing P.W.1. The evidence of P.Ws.6, 7 and 8 goes to show that on the date of incident, the accused, P.Ws.7 and 8 came to the shop of P.W.6 and they have purchased toddy and all of them have consumed the toddy and during conversation, the accused is said to have stated “Naa kantapaddadhanini vidichipetta, ivvala edho vokati chestha”. Thereafter, all the three persons are said to have disbursed and accused is said to have gone towards the village. P.W.6 also is said to have left his house and all the three of them came to know about the death of the deceased and finding of the dead body. These witnesses also goes to show that at the time of taking toddy, they have gone to well and noticed a snake and it was also taken out from the well and was killed by the accused. The evidence of P.W.8 further goes to show that a week after the incident, at about 7 a.m., the accused came and gave a voluntary confessional statement about the commission of the rape and murder of the deceased and theft of the gold ornaments of the deceased and sought for help. Subsequently, on the next day, he went to the Inspector of Police and informed the above facts. The evidence of P.W.9 is about his presence at the time of inquest over the dead body of the deceased. The evidence of P.W.10 is about arrest of the accused and the accused giving a confessional statement and seizure of the property in pursuance of his confession. The evidence of P.W.11 is about conducting of post mortem examination on the dead body of the deceased and finding the following injuries and basing on the FSL report, opined that the death of the deceased was due to head injury: “1. Fracture of head extended from frontal region to occipital region, antemortem. 2. Fracture and separation of occipital bone and brain matter visible, antemortem in nature. 3. Contusion over neck, nails scrapings on both sides of neck, antemortem in nature. 4. Tooth bites on lower lips, antemortem. 5. Nail scrapings over both the brest, antemortem in nature.” The evidence of P.Ws.12 and 13 is about the investigation done by them in this case. 12. The learned counsel for the appellant strongly contend that there is no direct evidence to show that the accused has committed the murder of the deceased and the circumstantial evidence, which was relied on by the learned Sessions Judge, is not conclusive and no guilt can be attributed to the accused. The seizure of the properties is also not believable and in fact, the reasons given by the learned Sessions Judge to draw an inference of guilt on circumstantial evidence are not pointing to the guilt of the accused and extra judicial confession has no value. 13. On the other hand, the learned Public Prosecutor contends that from the circumstantial evidence, it has been rightly accepted by the learned Sessions Judge that the accused alone is guilty of the offence. 14. In case which rests on circumstantial evidence, the law is well settled that the circumstances should unerringly and clinchingly point to the guilt of the accused and there shall be no hypothesis rather than the guilt of the accused and the accused alone is the person who has committed the offence. The chain of circumstances should be continuous and conclusive. Mere one or two circumstances will not complete the chain and therefore, the Court has to assess the evidence with caution before conviction can be passed on circumstantial evidence. We make it clear in this case that there is absolutely no motive for the accused to commit the murder except his claim of lust against the deceased and his proclamation that he will not leave any lady. Though the prosecution has stated that at times, the deceased was working in field, the accused has an eye over her, there is no evidence on record to show that at any point of time, the accused and the deceased worked together at the same place. Furthermore, the evidence on record only, if believed, establishes to the extent that P.Ws.6 to 8 and the accused have consumed toddy at about 12.00 noon and at that time, all the four of them have disbursed. The evidence of P.Ws.6 to 8 does not show that in or about the time when they have taken the toddy, they have seen the deceased near the scene of offence or that they have seen the accused going towards the fields. Since the evidence clearly goes to show that the accused went towards the village and not towards the fields where the incident is said to have taken place, there is absolutely no evidence to show that in or about the time the offence is said to have committed, the accused has gone to the scene of offence or was seen in the company of the deceased. If such evidence is lacking, the mere circumstances that a few hours earlier to the incident, P.Ws.6 to 8 and the accused had toddy together is not a leading circumstance to conclusively establish that the accused has committed rape and murder of the deceased and also committed the theft of the ornaments. The learned Sessions Judge has come to a conclusion only on this basis and not from any other evidence. The cause of circumstance is inconclusive since the circumstance, which has to be proved by the prosecution, is that in or about the time when the deceased is said to have been murdered, rape is said to have been committed, the accused is found near the scene of offence. On this aspect, there is absolutely, no evidence. The extra judicial confession said to have been given by P.W.8 also suffers from infirmity. Since immediately after the accused has given the statement, he has not taken the accused to the police station and he did not himself go to the police and inform the same about the confession given by the accused. According to the evidence of P.W.8, there are rumors in the village afloating that the deceased has been murdered. Therefore, the conduct of P.W.8 in reacting to the confession said to have been given by the accused appears to be very unnatural and more so, when the accused is said to have reposed confidence in him and also had toddy with him on the date of incident. Barring this evidence, there is no evidence to come to a conclusion that the accused is the person who committed the offence and therefore, the accused is entitled for a reasonable benefit of doubt and the circumstances will entitle him so. Accordingly, the conviction and sentence recorded against the accused are set aside. 15. In the result, the conviction and sentence recorded against the appellant/accused in the judgment dated 22-11-2006 in Sessions Case No.441 of 2006 on the file of I Additional Sessions Judge, Karimnagar for the offences under Sections 376, 302 and 411 I.P.C. are set aside. The appellant/accused is found not guilty of the said charges and accordingly, he is acquitted. Therefore, he shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by him shall be refunded to him. 16. So far as the theft of the property is concerned, in fact, none of the witnesses, who are the relatives of the deceased, have identified that the recovered property belongs to the deceased. In the absence of such evidence, it cannot be concluded that the properties seized from the possession of the accused are the properties belonging to the deceased. 17. Accordingly, the Criminal Appeal is allowed. _______________ K.C.BHANU, J ____​________________________ N.R.L.NAGESWARA RAO, J 20th January, 2011 AMD