HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.619 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) The State filed this appeal aggrieved by the judgment, dated 30.11.2004, passed by the learned II Addl. Sessions Judge (Fast Track Court), Adilabad, in S.C.No.395 of 2003, acquitting the respondents-accused for the offences punishable under Sections 302 r/w 34 and 201 IPC. 2. The case of the prosecution, in brief, is as follows: i) Accused No.1 was in love with the deceased namely Athram Rambai for the past two years and used to have intercourse with her, due to which the deceased became pregnant. Promising to marry the deceased, A.1 got her pregnancy removed by using pills. Ten days thereafter, the deceased suffered severe stomach pain and had got profuse bleeding. On 11.06.2001 the deceased intimated A.1 about her pain. On that, he took her with the help of A.2 in his own car bearing No.AP1-2181 to a Nursing Home at Madharipet where P.W.13, Dr. P. Praveena Reddy, treated the deceased and advised them to take her to Padmaja Hospital at Mancherial. Accordingly, the deceased was taken to the said hospital where P.W.12, Dr. Kondapalli Padma, after examining her, referred her to the Government Hospital, Mancherial, as her health condition was worse. P.W.14, Dr. M. Vasantha, treated the deceased and as the condition of the deceased could not be controlled, she referred her to the Government Hospital, Karimnagar, for better treatment. Since A.1 and A.2 did not have sufficient money, they came back to Utnoor and on 13.06.2001 when they reached Kothaguda Check Post at abut 12.00 noon, A.1 stopped his car and suddenly gagged the mouth and nose of the deceased and throttled her neck, while A.2 caught hold of her legs. The deceased resisted for some time and later died. Thereafter, both the accused took her dead body to the outskirts of Thadihatnoor and thrown it into a well to screen the evidence. ii) Basing on Ex.P.1 report of P.W.1, father of the deceased, dated 16.06.2001, P.W.16, the S.I. of Police, Narnoor P.S., registered Crime No.23 of 2001 under Section 174 Cr.P.C. and completed his part of investigation by recording the statement of P.W.1, examining the witnesses, conducting inquest and post-mortem examination on the dead body of the deceased, and arresting A.2 and basing on the evidence, he altered the section of law to 302 r/w 34 and 201 IPC. Later, P.W.17, the C.I. of Police, Utnoor, took up further investigation and during the course of investigation, he arrested A.1 and recorded his confession statement and after completion of investigation and receiving of necessary reports, laid charge sheet against the accused before the competent criminal Court for the offences punishable under Sections 302 r/w 34 and 201 IPC. The plea of the accused was of total denial. 3. In order to substantiate its case, the prosecution conducted trial by examining as many as 17 witnesses and marking Exs.P.1 to P.13 apart from M.Os. 1 to 4. On behalf of the defence, no oral evidence was adduced, but Ex.D.1, a portion of 161 Cr.P.C. statement of P.W.12, was marked. 4. After evaluating the evidence adduced by the prosecution, the learned Sessions Judge disbelieved the case of the prosecution and acquitted the accused of the charges leveled against them, by judgment dated 30.11.2004. Being aggrieved by the same, the State filed this appeal. 5. Learned Public Prosecutor has contended that the trial Court has discarded the evidence of P.W.6 before whom A.2 made extra judicial confession. He further contended that trial Court did not take into consideration the evidence of P.W.12, doctor, who treated the deceased, though her evidence that A.1 had accompanied the deceased along with another person, is sufficient to bring home the guilt of the accused. Therefore, he prays to set aside the judgment of the trial Court and convict the accused. 6. Per contra, learned counsel appearing for the respondents- accused contended that the trial Court is right in acquitting the accused and there are no grounds to interfere with the order of acquittal of the accused. 7. Even though number of witnesses were examined, the prosecution mainly relied on the evidence of P.W.6, Village Patel of Balanpur, who is the person before whom A.2 confessed that he along with A.1 committed the murder of the deceased. To appreciate the said extra judicial confession by A.2, the relevant dates are more important. According to the case of the prosecution, the deceased left the house on 10.06.2001 and the dead body of the deceased was found on 16.06.2001. The extra judicial confession was given by A.2 on 24.06.2001. There is no explanation more particularly by P.W.1, father of the deceased, on behalf of the prosecution, as to who accompanied her daughter while she was going to hospital at Utnoor on 10.06.2001 and as to why he has not lodged complaint till 16.06.2001 to the fact that his daughter was missing. Further, only when the dead body of the deceased was found on 16.06.2001, Crime No.23 of 2001 was registered on the basis of the complaint given by P.W.1 under the provisions of Section 174 Cr.P.C. 8. P.W.6 claims that A.2 confessed before him that he and A.1 committed murder of the deceased when they were returning in a car and while he caught hold of the legs of the deceased, A.1 throttled the neck of the deceased and they both thrown the dead body of the deceased into a well. Whereas on tracing out the dead body of the deceased on 16.06.2001, P.W.15, doctor, conducted post-mortem examination and issued Ex.P.7 post-mortem report and later issued Ex.P.9 final opinion that the patient appears to have died of inhalation of fluids as a result of drowning. But, it is very clear from the above that the Investigating Agency was not with any clue as to whether it is a case of suicide or murder and there is inconsistency with regard to the nature of offence between the evidence of P.W.6 and Ex.P.9 final opinion issued by P.W.15 doctor. 9. The further case of the prosecution is that P.W.6 deposed that only after A.2 confessed before him about the commission of the offence, himself and A.2 went to the Police Station and informed the same to the police and then the police had taken A.2 into custody, but in cross examination, P.W.6 stated that A.2 had confessed about the incident while he was in Utnoor by the side of the Police Station at about 12.00 noon and even before he was called to the Utnoor Police Station, A.2 was in the said Police Station. Therefore, after commencement of investigation, any confession recorded by a person cannot be of any evidentiary value and giving of extra judicial confession by A.2 about the incident before P.W.6 is not at all believable. 10. It is also not the case of the prosecution that P.W.6 has recorded the statement of A.2. Even if it is not possible for him to record the ‘verbatim statement’ of A.2, he should have recorded the same as nearly as possible at the words of A.2. Except the present evidence adduced by the prosecution, there is nothing to suggest or to connect the accused with the crime. Moreover, the evidence adduced by the prosecution does not directly disclose that the death is due to homicidal violence. As per opinion of the doctor P.W.15, the death is due to suicide and though the other doctors, who treated the deceased on the advice of A.1, were examined after lapse of five months to prove the fact that A.1 was having connection with the deceased, it is not a disputed fact by the accused also that A.1 and the deceased were in love and they wanted to marry. In the suspicious circumstances, tracing out of the dead body of the deceased in a well cannot be a ground to convict the accused. 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.” In the present case, the prosecution miserably failed to connect the accused with the crime and the prosecution miserably failed, even to make out the case against the accused. 12. It is also well settled position of law that when two views are possible on the basis of evidence adduced by the prosecution, one, which is in favour of the accused or more probable, can be taken into consideration and if the same is appreciated and the accused is acquitted of the offence, there is no need to interfere with the judgment of the trial Court. 13. In view the foregoing discussion, we are of the opinion that there is no need to interfere with the judgment of the trial Court and the said judgment does not suffer with any infirmity or perversity and there is no apparent error on the face of the record also. 14. Hence, the Criminal Appeal fails and is accordingly dismissed. ____________________ A. GOPAL REDDY. J __________________ RAJA ELANGO, J 25th October, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.619 of 2007 (Dismissed) 25th October, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.619 of 2007 Dated:25-10-2010 BETWEEN: The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Mesram Tirupathi and another …Respondents/ Accused THIS COURT MADE THE FOLLOWING: [1] AIR 1990 SUPREME COURT 79