THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO Crl.A.No.534 of 2007 Date of Order: 05-10-2010 Between: Durgam Gangaiah @ Keellolla Gangaiah ..Appellant And The State of A.P. rep. By its Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLESRI JUSTICE RAJA ELANGO CRL.A.No.534 of 2007 Oral Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/sole accused, who was tried for the offence under Section 302 IPC in S.C.No.231 of 2005 by the VI Additional District and Sessions Judge (Fast Track Court), Tirupathi, convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for two months, by judgment dated 09-04-2007, filed this appeal. 2. The graveman of the charge against the accused is that on 18-01-2005 he caused the death of Mekala Venkatarami Reddy (hereinafter called the ‘deceased’) at Erreddy Vanka dry channel near Mekalavaripalle village, Rompicherla Mandal, Chittoor District. 3. The prosecution story as unfolded during the course of trial may, briefly, be stated as follows: The deceased is a resident of Mekalavaripalle village and living by doing cultivation and running fair price shop in the village. The accused is a resident of Rompicherla Cross, Bommaiah Gari Palli village. The accused lent a sum of Rs.10,000/- as hand loan to the deceased for running fair price shop. In that connection, the deceased used to visit the house of the accused frequently; so the accused got suspicion that the deceased developed illegal intimacy with his wife. The deceased had taken 1½ acres of land on lease from one Mr. K.Venkata Ramana Reddy of Gadicheruvu palli and raised Tomato garden. On 18-01-2005 the accused came to the house of the deceased and demanded for payment of interest. In that connection, a quarrel took place between the accused and the deceased. Then, the wife of the deceased–P.W1 and Mekala Rani—L.W.2 intervened and pacified the matter. Thereafter, both the accused and deceased went to Tomato garden, but the deceased did not turn up to the house on the night. Therefore, P.W.1 searched for the deceased whole night, but did not find. On the next day morning i.e. on 19-01-2005, P.W.1 went to the house of P.W.2 to know the whereabouts of her husband. Then, P.W.2 informed her that on the previous night when he went to Gadi Cheruvupalli village for securing labour, on the way he noticed the accused and the deceased quarreling with each other at Erreddy Vanka with regard to money transaction and also illegal intimacy of the deceased with the accused. Later, the accused picked up a stone,, which is available near the scene, and killed the deceased on the spot. The said incident was witnessed by P.W.6, who was cutting broomsticks. In the meantime, P.W.3 came there and informed P.W.1 that her husband was murdered by somebody. Thereafter, P.Ws.1 to 3 and some other villagers rushed to the spot and noticed the dead body of the deceased lying in a pool of blood. Immediately P.W.1 went to Rompicherla police station and lodged a compliant—Ex.P1. Basing on the said complaint, L.Rama Chandra—Sub-Inspector of Police (L.W.22) registered a case in Cr.No.5 of 2005 under Section 302 IPC. P.W.15—Inspector of Police, Piler (Investigating Officer) visited the scene of offence on 19-01-2005; examined P.Ws.1 to 3, M.Rani— L.W.2 & P.Mahesh Kumar Reddy—L.W.5) and recorded their statements; conducted inquest over the dead body of the deceased in the presence of P.W.8 and another covered by Ex.P2— inquest report; seized M.Os.1 & 2—blood stained stones, M.O.3—pair of leather chappals, M.O.4—spects, M.O.5—blood stained shirt and M.O.—6— blood stained lungi of the deceased; got the scene of offence phographed through P.W.12; prepared rough sketch of the scene of offence covered under Ex.P9; secured the presence of P.Ws.4 to 7, examined them and recorded their statements and sent the dead body of the deceased for postmortem examination. P.W.14—Deputy Civil Surgeon, Community Health Centre, Piler, who conducted autopsy over the dead body of the deceased, found the following injuries: External Injuries: 1. Laceration over the back of right ear 5 x 6 cm. 2. Abrasion over left fore head 5 x 6 cm. 3. The laceration over back of left ear 3 x 5 cm. 4. Laceration on left ear lobe. 5. Abrasion over left face (cheek) 5 x 6 cm. 6. Multiple (5-6) abrasions over left wrist and forearm each 2 x 3 cm. 7. Abrasion over left and right knee each 5 x 4 cm. 8. Abrasion over the left upper chest 5 x 6 cm. 9. Bleeding through left and right ears. Internal Injuries: On dissection: Head and neck 1. contusion over the right temporal region of the scalp 3 x 5 cm. 2. Depressed fracture of the right temporal bone of the skull. 3. Contusion of the right temporal lobe of the brain 3 x 4 cm. neck muscles normal; hyoid bone intact. Chest: Ribs normal on right side 4. Fracture of the 2, 3, 4th ribs on left side in the anterior side. 5. Hemorrhage fluid about 500 – 700 ml. in the let thoracic cavity. 6. Complete destruction of the left lung tissue and pieces of lung tissue is floating in the hemorrhagic fluid. Heart was normal. Right lung normal. Abdomen: Stomach empty, liver, spleen, both kidneys normal. Bladder empty. Testicles and serotem normal. The doctor issued Ex.P7—postmortem certificate opining that the deceased would appear to have died due to shock and hemorrhage due to multiple injuries and mainly due to chest injuries cased due to blunt object. After completion of investigation and after receipt of relevant reports P.W.15 laid the charge sheet. 4. On committal, the learned Sessions Judge framed a charge for the offence punishable under Section 302 IPC and the said charge was read over and explained to him in Telugu, who pleaded not guilty and claimed to be tried. 5. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P10 besides case properties—M.Os.1 to 6. When the accused was examined under Section 313 Cr.P.C. about the incriminating evidence made against him, he reported no defence evidence on his side, but Exs.D1 and D2—portion of complaint given by P.W.1 are marked. 6. The learned Sessions Judge relied upon the evidence of P.Ws.4, 6 and 7; particularly, P.W.6, who claimed to be eyewitness, convicted the accused as aforementioned. Questioning the same the appellant/accused filed the present appeal. 7. The entire case of the prosecution rests upon the eyewitness —P.W.6 and the so-called extra judicial confession made by the accused to P.W.10—Panchayat Secretary, Bandakindapalle village. 8. We have heard Sri Kodandarami Reddy, learned counsel appearing for the appellant and also learned Additional Public Prosecutor for the State, who has taken us to the entire evidence on record and also judgment under appeal. 9. The learned counsel for the appellant contends that P.Ws.6 is a chance witness and projected as eyewitness and the same has not been corroborated with the medical evidence. If the said evidence is eschewed, there is no other evidence to connect the accused with commission of the offence. The so-called extra judicial confession said to have been made by the accused to P.W.10 is not in the language spoken by the accused and it is only in the form of report made by P.W.10 to the Investigating Officer —P.W.15 under Ex.P4. The evidence adduced by the prosecution also shows that P.W.10 has not stated about the so-called confession made by the accused. Therefore, it is unsafe to convict the accused basing on the said confession. 10. Per contra, the learned Additional Public Prosecutor while sustaining the judgment under appeal contended that the learned Sessions Judge on appreciation of evidence rightly convicted the accused for the offence for which he was convicted and it needs no interference. 11. In view of the above submissions, the only point that arises for consideration in this appeal is: “Whether the prosecution is able to bring home the guilty of the accused beyond reasonable doubt and whether the judgment of the trial court is liable to be set aside or modified” 12. P.W.1 is the wife of the deceased. Her evidence goes to show that her deceased husband is running fair price shop and in that connection he borrowed hand loan of Rs.10,000/- from the accused. On the fateful day the accused came to the house of the deceased and demanded for payment of interest; the deceased informed that he will pay same within 10 days, but the accused insisted for payment interest then and there. In that regard, quarrel took place between the accused and the deceased; then she intervened, pacified the matter and offered tea to both of them and they kept quiet for some time. She also deposed that the deceased took the land on lease from P.W.4 and raised Tomato crop. The accused asked the deceased to go over to Tomato garden; accordingly the deceased left the house but did not turn up whole night. On the next day morning i.e. on 19-01- 2005 at about 6.30 A.M., she went to the house of P.W.2 to know the whereabouts of her husband, who informed her on the previous day when he went to Gadicherruvupalle village for securing labour, he noticed the accused and the deceased quarreling with each other at Erreddy Vanka near the lands of K.Venkata Ramana Reddy (L.W.6); in the meantime, K.Ramanaiah, Ex-Sarpanch of the village came and informed that somebody murdered her husband. Then, herself, P.W.2 and some others rushed to the spot and noticed the dead body was lying in a pool of blood. Thereafter, she lodged a complaint—Ex.P1 with the police. She stated in the cross-examination that she mentioned in Ex.P1 on the night of 18-01-2005 she went to the house of P.W.2, who in turn informed that he noticed the accused and the deceased quarreling with each other at Erreddy Vanka, and her husband did not return. She also mentioned in Ex.P1 on the next day the Ex-Sarpanch of their village came to her house and informed that he noticed the dead body of the deceased near Erreddy Vanka. The scene of offence is about three kilometers from Rompicherla P.S. She is not an eye-witness to the incident. 13. P.W.2 stated about his noticing the accused and deceased quarreling at Erreddy Vanka on 18-01-2005 at 4 P.M.; on his enquiry, they told that there was nothing special; thereupon he went away. On the next day morning, P.W.1 came to his house and informed that the deceased and the accused left the house during the evening hours of the previous day and the deceased did not turn up on the previous night. 14. P.W.3, who is also the resident of Peddagottigallu village, stated that on 19-01-2005 at 7 A.M. he noticed the dead body of the deceased in a pool of blood; immediately he went to the house of P.W.1; as she was not available in the house, he went to the house of P.W.2 and informed about the incident to them. 15. P.W.4 deposed that on the date of incident i.e. 18-01-2005 both the accused and the deceased came to his coconut garden and purchased four coconuts and went towards Erreddy Vanka. On the next day i.e. 19-01-22005, on coming to know about the murder of the deceased, he went to the spot and noticed the dead body of the deceased lying in a pool of blood. 16. P.W.5 stated that the deceased is his uncle. On 18-01-2005 when the accused and the deceased were quarreling with each other, his aunt—P.W.1 pacified the matter; on 19-01-2005, he came to know about the murder of his uncle and the body was lying at Erreddy Vanka; then he immediately rushed to the spot and noticed the dead body of his deceased uncle. 17. P.W.6, who is said to an be eye-witness to the incident, deposed that on 18-01-2005, she left the house in the morning hours and went to the agricultural lands of P.W.4 for collecting broomsticks and she was there upto 5 P.M.; at that time she noticed the accused and the deceased sitting together by the side of Vanka and drinking coconut water; she noticed the accused lifted a stone and beat the deceased with the said stone over his head; then the deceased raised hue and cry, she tried to go near to them, but the accused threatened her with dire consequences by showing the stone; so she ran away from the scene of offence out of fear and did not inform the incident to anybody. On the next day morning, on coming to know about the death of the deceased, she accompanied along with other villagers to the spot; even then also she did not disclose the incident to anybody; only when the police came to the spot and examined her she admitted that she did not inform about the incident to anybody till she was examined by the police. 18. P.W.10, who is Panchayat Secretary at the relevant of time, deposed that on 04-02-2005 when he was in office, at 11 A.M. the accused came and informed that he murdered the deceased on 18-01-2005 near Erreddy Vanka and also about his lending money on interest to the deceased, who is running fair price shop; in that connection, the deceased used to visit his house and in the process, the deceased developed illegal intimacy with his wife; in spite of his warning the deceased continued the same; when the deceased was reluctant and adamant, he picked up a stone and beat the deceased on his head. Accordingly, he drafted the report—Ex.P4, went to Inspector of Police, Piler and presented the same to him and at that he was examined by the police. 19. P.W.14 the doctor who conducted postmortem examination over the dead body of the deceased found as many as 9 external injuries and issued Ex.P7—post mortem certificate stating that the deceased did due to shock and hemorrhage due to multiple injuries and mainly due to chest injuries caused due to blunt object. 20. P.W.15, Investigating Officer, deposed in the cross- examination that he do not remember the name of the person who revealed the names of P.Ws.4 to 7 and others who are having knowledge about the incident. P.W.1 did not specifically state to him that galata (quarrel) took place between her deceased husband and the accused in connection with payment of interest nor state about the demand made by the accused and the reply given by her husband about payment of the amount after 10 days. P.W.1 did not state before him that P.W.2 informed while he was going to Gadicherruvupalle for securing labour he noticed the accused and the deceased were quarreling with each other. P.W.10, who recorded the confession of the accused, did not state that before him that he brought the accused and handed over to him and also that the accused informed him that he beat the deceased with a stone over his head. P.W.10 did not state before him that the accused approached him (P.W.10) on the ground of acquaintance with the police. 21. The above evidence clearly shows that extra judicial confession said to have been made by the accused has not been recorded by P.W.10 nor obtained his signature. Ex.P4 is only in the form of report submitted by P.W.10, which cannot be called as confession made by the accused to base conviction. 22. P.W.6, who is the eyewitness, has stated that accused lift the stone and beat the deceased over his head; the deceased raised cries; when she tried to rescue, the accused threatened her with dire consequences then she fled away from the spot. Her keeping silence and not informing either to P.W.1 (wife of the deceased) or to anybody in the village till the next day morning when police examined her do not inspire confidence that she has witnessed the incident, as projected by the prosecution and she is planted witness. If her evidence is excluded, there is no other evidence to connect the accused with commission of the offence. The entire verdict of the prosecution case since from morning there was quarrel between the accused and the deceased; as spoken by P.W.1 is omitted to state by P.W.10; therefore, the theory of quarrel, which the motive to kill the deceased, has not been established by the prosecution. 23. In view of the same, trial court fell in error in accepting the case of the prosecution particularly, the evidence of P.W.6, who is projected as eye witness, and the so-called extra judicial confession to base the conviction. 24. For the conclusions reached by us, it is unsafe to convict the accused on the uncorroborated evidence adduced by the prosecution and he is entitled to benefit of doubt. 25. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/sole accused for the offence under Section 302 IPC in S.C.No.231 of 2005 dated 04-04- 2007 by the VI Additional District and Sessions Judge (FTC), Tirupathi are set aside. Consequently he shall be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any paid by the appellant/sole accused shall be refunded to him. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 05-10-2010 Murthy