HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.78 OF 2008 AND CRL.R.C.NO.1904 OF 2006 Dt.21.12.2010 CRL.A.NO.78 OF 2008 Between: State of A.P., rep. by the Public Prosecutor High Court of A.P., Hyderabad ..Appellant And Kavala Vedanayakam @ Nayak and others ..Respondents CRL.R.C.NO.1904 OF 2006 Between: Syed Hussain ..Petitioner And Kavala Vedanayakam @ Nayak and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.78 OF 2008 AND CRL.R.C.NO.1904 OF 2006 JUDGMENT: (Per Sri Justice P.Swaroop Reddy) The criminal appeal is filed by the State against the judgment in S.C.No.42 of 2003 on the file of the I Additional Sessions Judge, Ongole, dated 31.1.2006 and the criminal revision case is filed by P.W.2, the father of the deceased. The charge framed against the accused is under Section 302 IPC. The relevant facts, in brief, are as follows: The deceased Allabaksh was working as a private Teacher in Inkollu village. He has allegedly developed illegal intimacy with the daughter of A-2 and A-2 wanted to eliminate him. For that purpose, he has taken the help of the other accused i.e., A-1, A-3 to A-5. On the fateful day i.e., on 25.5.2001, A-2 secured the presence of the deceased through P.W.18 (A-1, who turned as approver) and A-2 to A- 5 killed him by fisting and kicking at the testicles. The dead body was found by the villager on the next morning. The incident had taken place at I.T.I College premises where the dead body was found. There was some confusion as to whether the dead body was found on the terrace or on the ground of the school. According to the prosecution case, the deceased developed illegal intimacy with the daughter of A-2. A-2 to A-5 conspired to kill him and got him to the compound of I.T.I College and killed him. The dead body of Allabaksh was buried as per Muslim customs by his family members thinking that it is a case of natural death. P.W.12 the priest who gave funeral bath to the deceased observed burn injuries on the body of the deceased including swelling of testicles. Later, on 29.5.2001 on the basis of the complaint, the body was got exhumated and post mortem was conducted and it was held to be a case of homicidal death. Investigation was taken up during the course of which, the police suspected the involvement of A-1 who escaped from the village and was ultimately arrested by the police on 16.1.2002 and certain recoveries were made at his instance and on the basis of his confession, he was accepted as approver and examined as P.W.18. After filing the charge sheet, charge under Section 302 IPC alone was framed against the accused and they pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 22 were examined and got marked Exs.P-1 to P-21 and M.Os.1 and 2 were marked. On behalf of the defence, no witnesses were examined and Ex.D-1 was marked. P.W.1 is the Panchayat Secretary who gave complaint to the police on 27.5.2001. According to him, he heard from villagers about the dead body, which was already cremated, and it was not a natural death as testicles were found swollen. He forwarded the report to the S.H.O., Inkollu and the body was exhumated on 29.5.2001. Ex.P-1 is the complaint given by P.W.1 which goes to show that on 26.5.2001 morning a person was lying on the terrace of Zilla Parishad High School and he was identified was Allabaksh, as there was no visible injuries on the body of the deceased and the relatives thought it to be a case of natural death and buried the body, that it came to his knowledge that the deceased died on the night of 25.5.2001 and later rumours spread in the village that it is a case of suspicious death on which he requested to enquire about the cause of death of the deceased. Thus, it is a suo motu report. There was no complaint from any one much less from the kith and kin of the deceased. The complaint was based on some rumours in the village. P.W.2 is the father of the deceased. He spoke about the deceased developing intimacy with a Kamma girl in the village, that A-2 and A-3 told him that his son would not be spared if the deceased continues his relationship with their caste girl and about P.W.18 taking away the deceased at 5.30 p.m., or 6.00 p.m., on 25.5.2001. However, he did not clearly speak about the person that took away the deceased. He stated that Nayak had taken away his son. May be he referred to Vedanayakam (P.W.18) as Nayak. He further stated that on the next morning at about 9.00 a.m., he came to know from the villagers that a dead body was lying at High School and he went there with the villagers and found that the dead body was that of his son. He also found beer bottle and ground nuts near the body. He thought that his son has committed suicide because of strained terms between him and his son on account of failure of marriage. He further stated that he brought the dead body to graveyard and buried the same as per religions customs. P.W.12 who gave bath to the dead body told him that he found burn injuries on the legs and swelling of testicles and that the death was not normal. All the villagers were expressing various doubts about the death of the deceased and on 27.5.2001 he met P.W.1 and informed him about the suspicious death of his son and the body was exhumated. Significantly P.W.1 did not speak about P.W.2 informing about the suspicious death of the deceased. P.W.3 is the brother of the deceased. He spoke about P.W.18 taking away the deceased and on the next day his dead body being found at Z.P. High School. P.W.4 was supposed to speak about the deceased and P.W.18 coming together taking liquor. He turned hostile. P.W.5 spoke that at about 10.00 or 11.00 p.m., he saw P.W.18 and the deceased going towards Gollapalem, near R.T.C. Bus stand and that the deceased was holding a bottle in his hand. P.W.6 was supposed to speak about the deceased and P.W.18 purchasing some eatables on that day. He also turned hostile. P.W.7 stated that on 25.2.2001 at about 10.00 p.m., he went for easing grounds at the outskirts of Gollapalem road and he saw A-2 to A-4 going towards I.T.I. college. He did not speak about finding the deceased or P.W.18 at that time. P.W.8 was supposed to speak about certain circumstances of the case. He also turned hostile. P.W.9 was supposed to speak about the accused and the deceased being found together on the fateful day. He turned hostile. P.W.10 is the Mason who stated about his finding of body of the deceased on the ground of Z.P. High School and he also found some eatables and a bottle. He did not find any injuries on the body of the deceased. P.W.11 was supposed to speak about the deceased and the daughter of A-2 having illegal intimacy. He turned hostile. P.W.12, who gave funeral bath to the dead body of the deceased, stated that he had observed burn injuries on the knees and swelling of testicles. The evidence of P.W.13 owner of the private residential school where the deceased was working is not at all relevant. P.W.14 is the panch witness for the inquest report, who turned hostile. P.W.15 is the Medical Officer who conducted autopsy on the body of the deceased. He found ten simple injuries on the body of the deceased. He says that the deceased died due to shock as a result of multiple simple injuries. P.W.16 is the Mandal Revenue Officer that got the body exhumated. P.W.17 is the panch witness for the scene of offence at the Muslim graveyard. P.W.18 is A-1 being approver, spoke about the offence saying that A-5 asked him to get the deceased and he took the deceased to I.T.I College. There the deceased consumed beer in the verandah. A-5 asked P.W.18 to go away. He refused to go away. A-2 to A-4 came there along with A-5 and assaulted the deceased saying that he is having an affair with the girl of their caste and began to beat the deceased. The deceased fell down and the accused forcibly gave him a watch and chain of the deceased. P.W.19 is the investigating officer. P.W.20 is another investigating officer. P.W.21 is the person from whom the gold chain was allegedly recovered. P.W.22 is also another investigating officer. The evidence of the prosecution was denied by the accused under Section 313 Cr.P.C. On the basis of the material on record, the learned I Additional Sessions Judge, Ongole found no consistency in the prosecution case and acquitted the accused. Aggrieved by the same, the present criminal appeal is filed by the State and the father of the deceased filed the criminal revision case. Now the point for consideration is whether the prosecution has proved its case beyond all reasonable doubt. First of all, there is no authentic evidence to show that it was case of homicidal death. Initially no injuries were found on the body of the deceased and it was buried. P.W.12 who gave funeral bath to the body of the deceased claims to have observed burn injuries on the knees and swelling of testicles and informed the same to P.W.1 and others, but nothing was done and the body was buried. In case there were any serious injuries on the body of the deceased, obviously early steps would have been taken by the kith and kin of the deceased before burying the body. The evidence of P.W.12 is that he found burn injuries below the knees and swelling of testicles. For this, there is no medical evidence. P.W.15 who conducted post mortem on the body of the deceased specifically stated that there were no burn injuries below the knees. He did not specify as to which injury caused the death of the deceased. Perhaps injury on scrotum could have caused the death of the deceased, as all other injuries are simple in nature. P.W.12 have cautioned P.W.2 about scrotum of the deceased being swollen. But no immediate steps were taken. The motive for the offence is said to be that of the deceased developing illegal intimacy with the daughter of A- 2. There is no positive evidence for the same since P.W.2, the father of the deceased, was reluctant to state about the same. Thus, there is no evidence at all for the motive part of the prosecution case. With regard to the place of incident, according to P.W.18 the deceased was taken to I.T.I. compound and there the deceased consumed liquor in his company and there itself he was killed. But, P.W.10 found the body the deceased on the ground of Z.P. High School. According to prosecution case, the dead body was on the terrace of the school and eatables were said to have found by the side of the body. Thus, there is no consistency with regard to the place of offence or the place where exactly the body of the deceased was found. Now remains the evidence of P.W.18, which alone is available for prosecution to prove the guilt of the accused. This witness does not initially speak about the incident. He gave evidence with regard to the acts of the accused that took place at I.T.I. compound where they consumed liquor. But the body of the deceased was found at Z.P. High School and there is no consistency with regard to the place of the dead body found. Thus, the evidence of P.W.18 from the inception is incorrect with regard to the place of incident and he is an approver and his evidence has to be considered cautiously as has been held by the Apex Court in Shankar @ Gauri Shankar v. State of Tamil Nadu[1]. In the present case, there is no corroboration for the evidence of approver with regard to the actual incident. There is inconsistency with regard to the place of incident on the basis of finding of the body of the deceased. According to P.W.18 the deceased was killed at I.T.I. compound, whereas the body of the deceased was found at Z.P. High School. In view of the aforesaid discussion, the findings of the trial Judge in acquitting the accused cannot be said to be erroneous. There are absolutely no grounds to interfere with the judgment of the court below. In the result, the criminal appeal as well as the criminal revision case is dismissed. _________________ V.ESWARAIAH, J. _____________________ P.SWAROOP REDDY, J. 21.12.2010 kpr [1] 1994 (4) SCC 478 = 1994 (2) Crimes 1