HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.586 OF 2007 Between: Marikanti Sri Ramulu and others …. Appellants and State of Andhra Pradesh, rep. By Public Prosecutor …. Respondent This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.586 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) The appellant/sole accused filed this criminal appeal questioning the conviction and sentence recorded against him by the Principal Sessions Judge, Kurnool vide judgment, dated 15.09.2005, whereby the accused was convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for brief, “IPC”) and also to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for six months. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- The accused is the son-in-law of one Seelappa (hereinafter referred to as ‘the deceased’) and is a resident of Vidyanagar, Secunderabad. The de facto complainant viz., Nese Saye Rajendra, who is the son of the deceased, is a resident of Kondapeta, Kodumuru Town. The accused married P.W.2, the daughter of the deceased, and lived happily for a period of four years at Adoni and out of their marital life they begot one son by name Nese Kake Ravi Kumar and one daughter. Later the accused addicted to bad habits, left his house and went to Hyderabad. He developed illegal intimacy with a woman at Hyderabad and as that woman eloped with another person, he started visiting the house of the deceased frequently and asking his wife Rajeswari to come over to Hyderabad and stay with him. On her own accord and also at the instance of her father, she refused to follow the accused and to live with him at Hyderabad. In that context, the accused quarreled with the deceased and his wife number of times. On 27.06.2004 at about 08.30 P.M., the accused called the deceased for consuming toddy and accordingly the deceased followed him to one toddy shop belonging to Seelam Ediga Vijayakumar in Kodumur Town. Accused consumed one bottle of toddy and the deceased consumed two bottles of toddy in the shop. Having planned to kill the deceased, the accused asked him to come to one Dhaba situated near a petrol bunk in the outskirts of Kodumur. Both of them reached Dhaba at 09:30 P.M. and had food. Later the accused told the deceased that he is going to attend the calls of nature and the deceased followed the accused. While the deceased was attending calls of nature, the accused picked up a big stone and beat on the back side of the head of the deceased, as a result of which, the deceased fell down and again the accused hurled two big stones on the face of the deceased and consequently the deceased died on the spot. Then the accused escaped from the place of incident. Because the deceased did not return, the de facto complainant searched for the deceased and later found his dead body at the said place. The de facto complainant gave a report in the police station at Kodumur about the said circumstances and on that basis the Sub Inspector of Police registered a case in Crime No.61 of 2004 under Section 302 IPC on his file and investigated into. During the course of investigation, the Sub-Inspector of Police conducted inquest over the dead body of the deceased in the presence of mediators and the mediators opined that the deceased died having received serious injuries on his face. Later the accused approached one C.B.Satyanarayana, Ex-vice president of Kodumur, and gave extra judicial confession about the incident. On the advice of C.B.Satyanarayana, the accused met Shaik Abdul Shukur and before him also he gave extra judicial confession that he killed his father-in- law. The said Shaik Abdul Shukur produced the accused before the Inspector of Police, Kodumur. The Inspector of Police interrogated the accused, seized the bloodstained clothes of the accused and arrested the accused. The Sub-Inspector of Police sent the dead body for post mortem examination. After completion of investigation and after receiving all relevant reports, the Inspector of Police filed charge sheet. 3. The Magistrate committed the case to the Court of Sessions, Kurnool, and the case is made over to the Court of the Principal District and Sessions Judge, Kurnool. After appearance of the accused charge under Section 302 IPC has been framed, read over and explained to him and he pleaded not guilty. 4 . In order to prove the case of the prosecution, prosecution examined 11 witnesses as P.Ws.1 to 11 and got marked Exs.P1 to P9 documents, besides marking M.Os.1 to 11. After closer of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. 5. Heard Miss.Vasantha Lakshmi Bavaraju, Amicus curiae appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 6. Now the point for consideration is: “Whether the conviction and sentence recorded by the trial Court against the appellant is sustainable or not?” P O I N T : 7. P.Ws.1 to 3 were examined by the prosecution to substantiate the fact that on the date of incident deceased went along with the accused from the house of P.W.1. It is the evidence of PWs 1 to 3 that the accused used to come to the house of the deceased and request the deceased to send P.W.2, wife of the accused, along with him but the deceased refused to send her because of the conduct of the accused. It is also evident from the evidence of PWs.1 to 3 that on the date of incident, accused took the deceased for consuming toddy, but they refused to send the deceased and asked the accused to go away. Then what made the deceased to follow the accused for consuming toddy is not explained by the Prosecution witnesses. Further the motive attributed by PWs.1 to 3 for commission of offence is the misunderstanding between the accused and his wife since 20 years due to the illicit intimacy of the accused with another lady. But there is no evidence on record to show that there is an immediate motive for the accused to commit the crime after the deceased left the place along with the accused. P.W.4 is another witnesses examined by the prosecution to substantiate the fact that the accused and the deceased joined together and wandered in and around the places. He is the person who was in a Dhaba where the accused and the deceased had their food after consuming toddy. But the evidence of said witness was disbelieved by the trial Court. One of the other circumstances to substantiate that the deceased and the accused were together is the evidence of P.W.8, who is the person working in the toddy shop. The evidence of P.W.8 is that the deceased and the accused visited the shop and had toddy in the shop. But it is not the evidence of P.W.8 that there was any quarrel or misunderstanding between the deceased and the accused. The trial Court convicted the accused on the basis of the evidence of P.Ws.1 to 3 and 8. 8. Amicus Curiae appearing for the appellant submitted that the evidence adduced by the prosecution to substantiate the theory of ‘last seen’ is very feeble and the same cannot be believed. 9. It is true that the deceased left the house along with the accused. The same was witnessed and spoken by P.Ws.1 and 3. But nowhere the said witnesses deposed that there was any quarrel or that the deceased was taken by the accused in a suspicious circumstance. P.W.1 has not lodged any complaint even though the deceased has not returned to the house till next day morning by 11:00 A.M. The complainant was informed by some of the villagers that the dead body of the deceased was found near the bush. On the basis of that information, present complaint was lodged by P.W.1, which clearly shows that the said witnesses are not having any idea that the accused is having any motive to commit the crime. The learned Sessions Judge rightly disbelieved the evidence of P.W.4 because it suffered with infirmities and also lot of discrepancies. P.W.8 evidence is also to the effect that he saw the deceased and the accused in the toddy shop. They consumed toddy in the shop, but as rightly pointed out that there is no evidence to show that there was any dispute, quarrel or misunderstanding visibly noted by the said witness. In a circumstantial case, of course, the theory of ‘last seen’ can be one of the circumstances to convict the accused. But certainly the said theory of ‘last seen’ cannot be the only ground to convict the accused. The learned counsel for the appellant relied on the decisions of the Apex Court, which give guidelines as what are all the points to be taken into consideration and how the case to be proved by the prosecution in a case of circumstantial evidence. 11. It is now fairly well settled 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.” 10. Hence, in the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that it is unsafe to convict the accused that too for an offence under Section 302 IPC, which is punishable with a minimum sentence of life imprisonment. In view of the above discussion, we are of the view that the prosecution failed to establish the guilt of the accused by adducing any clinching evidence. Hence, the appellant/accused is entitled for the benefit of doubt. The fee of Amicus curiae appearing for the appellant is fixed at Rs.2,000/- (Rupees Two thousand only). 11. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused for the offence punishable under Section 302 IPC by the Principal Sessions Judge, Kurnool, in Sessions Case No.402 of 2004, dated 15.09.2005, is set aside and he shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him forthwith. __________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J October 29, 2010 LMV [1] AIR 1990 Supreme Court 79