THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 473 OF 2007 DATED: 24-08-2010 Between: 1.Korsa Seetharamulu and another …Appellants-A1 and A2 And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 473 OF 2007 JUDGMENT: (per THE HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal under Section 374 (2) Cr.P.C. is directed by the appellants-A1 and A2 against the judgment, dated 27-02-2007 in Sessions Case No.319 of 2006, on the file of the II Additional Sessions Judge, (Fast Track Court-I), Khammam, whereunder and whereby the 1st appellant-A1 was convicted of the charge under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo Imprisonment for life and also to pay a fine of Rs.200/-, in default to undergo Simple Imprisonment for one month, further 2nd appellant-A2 was convicted of the charge under Section 302 r/w 34 IPC and sentenced to undergo Imprisonment for life and also to pay a fine of Rs.200/-, in default to undergo Simple Imprisonment for one month and further both the appellants-A1 and A2 were convicted of the charge under Section 201 IPC and sentenced to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs.200/- in default to undergo Simple Imprisonment for one month and both the sentences were directed to run concurrently. 2. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows: A1 to A5 and all the prosecution witnesses are residents of Marappagudem. P.Ws. 1 and 3 are the sisters and P.W.2 is the wife of Modiyam Venkateswara Rao (hereinafter referred to as ‘the deceased’). The deceased and all his family members used to live together in the same house at Marappagudem. On the date of incident at about 7.00 P.M., when the deceased was about to take his meals, A2 came to the house of the deceased and took away him. One hour thereafter, P.W.1 came to road and found P.W.5 on the road near the house of A2 and asked P.W.5 about her deceased brother. P.W.5 informed P.W.1 that the deceased was at the house of A5. P.W.1 found A1 to A5 at the house of A5. When P.W.1 questioned about her deceased brother, A2 informed that the deceased already left that place. Then P.W.1 returned home and enquired P.W.2 about the deceased. The family members informed that the deceased did not return home. Again P.W.1 went to the house of A5 and found A1 to A5 eating mutton while consuming liquor in the third room of the house. P.W.1 enquired A1 to A5 about the deceased. A2 replied that the deceased was not there. Then P.W.1 tried to return back and found the deceased lying on the ground in the middle room oozing bleeding from mouth and nose. Then P.W.1 returned home and brought P.Ws.2, 3 and other family members to the house of A5. P.W.1 along with family members brought the dead body of the deceased to their house. P.W.1 suspected that the accused are responsible for the death of her brother in view of the quarrel between deceased and A1 at the cock fighting place, presented Ex.P1 report to police, basing on which, P.W.9 registered a case. P.W.10 took up investigation, visited the scene of offence and prepared rough sketch. P.W.10 secured the presence of P.Ws. 1 to 4 and recorded their statements. He conducted inquest over the dead body of the deceased and subjected the dead body to post-mortem examination. P.W.8 who conducted autopsy over the dead body of the deceased opined that the cause of the death was due to severe haemorrhage of brain due to head injury and he issued Ex.P9-postmortem report. On 14-02-2005, P.W.10 arrested A1 to A5 and interrogated them in the presence of mediators. A5 gave a confession stating that a stone was used in the common of offence and produced the same from his house. P.W.11-Inspector of Police took up further investigation and sent requisition to Judicial Magistrate of I Class, Madhira to record Section 164 Cr.P.C. statements of P.Ws. 1,5 and 7. Accordingly, Exs.P11 to P13 statements were recorded by the Magistrate. After completion of investigation, P.W.11 filed charge sheet. 3. The learned Sessions Judge, framed the following charges against the accused: Firstly: That you A1 on 10-02-2005 at about 7 P.M. at the house of A5 of you at Marappagudem committed murder intentionally causing the death of the deceased, Modiyam Venkateswara Rao in further of common intention of you and A2 and thereby committed an offence punishable under Section 302 IPC. Secondly: That you A2 in the same transaction, at the same time and place as mentioned in charge no.1 along with A1 committed criminal act, brought the deceased Modiyam Venkateswara Rao from his house to the house of A5 in furtherance of common intention of you and A1 to do away his life and thereby committed an offence punishable under Section 302 r/w 34 IPC. Thirdly: That you A1 to A5 in the same transaction, at the same time and place as mentioned in charge no.1 knowing that the offence namely murder punishable with death or imprisonment for life occurred, caused certain evidence connected with the said offence namely kept the corpse of the deceased in the middle room of the house of A5 of you to disappear the evidence with an intention to screen the offenders from legal punishment and thereby committed an offence punishable under Section 201 IPC. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 11 and got marked Exs.P1 to 13 besides case properties, M.Os. 1 to 4. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The trial Court after considering the oral and documentary evidence available on record, convicted and sentenced the appellants as above. Challenging the same, the appellants preferred this appeal. 7. Now the point that arises for consideration in this appeal is whether the prosecution has proved its case against the appellants of the offences with which they were charged beyond all reasonable doubt? 8. Learned counsel appearing for the appellants-A1 and A2 contended that the origin and genesis of the occurrence has been suppressed by the prosecution, that the police have not conducted investigation properly so as to fix the actual scene of occurrence, that the blood stained earth and control earth at the place of occurrence has not been seized by the police, that it is the case of the prosecution that the blood was oozing from the mouth and nose of the deceased and the blanket which was covered on the body of the deceased came into contact with the blood stains, but the same was not seized by the police and no explanation was forthcoming as to why the police did not seize the blood stained earth, that it is not the case of Investigating Agency that no blood stains were found at the scene of occurrence, that the deceased going to the house of A5 cannot be said to be an incriminating circumstance because A5 was doing arrack business, that if really the dead body of the deceased was found in the third room of A5, there is no reason for the prosecution witnesses i.e., P.Ws. 1 to 3 along with their relatives to shift the dead body to the house of the deceased, that the possibility of the deceased falling on the sharp edged stone having a cone after consuming liquor cannot be ruled out, that when two views are reasonably possible on the evidence adduced by the prosecution, the view which is favourable to the accused has to be adopted, that P.W.2 who is no other than the wife of the deceased is the best person to speak about which of the accused took the deceased to the house of A5, that going to the house of A5 along with other accused cannot be said to be an incriminating circumstance, that the prosecution witnesses have suppressed the place of occurrence and therefore, she prays to set aside the convictions and sentences recorded against the appellants. 9. On the other hand, learned Additional Public Prosecutor contended that the evidence of P.Ws. 1 to 3 is very clear that the deceased was taken to the house of A5 by A2 and the same was seen by P.W.5, that the deceased was last seen alive in the company of A1 and A2, that similarly after the death of the deceased when P.W.1 went to the house of A5, she found the dead body of the deceased covering with a blanket in the third room of the house of A5, that therefore these circumstances would indicate that one of the accused must have caused injury on the head of the deceased, which resulted in his death, that the trial Court after elaborate consideration of evidence on record rightly found the appellants guilty and absolutely, there are no grounds to interfere with the same. 10. P.W.6 is one of the inquest mediators who was present when P.W.10 held inquest over the dead body of the deceased at the house of the deceased under Ex.P4. The inquest mediators opined that the deceased died as a result of head injury. 11. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased found a contusion on left temporal region 16 x 2 cms and on internal examination, he found severe cerebral haemorrhage of brain on left temporal area. He opined that the deceased died as a result of head injury and issued Ex.P9-postmortem report. He also opined that the injuries in Ex.P9 are possible by hitting with M.O.1. He admitted in his cross- examination that the injuries in Ex.P9 are possible if a person falls on a stone, having a cone, may be a sharp edged projection of a stone. Therefore, from the evidence of P.Ws. 6 and 8 and recitals in Exs.P4 and P9, it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. 12. Now it has to be seen whether the accused are the assailants of the deceased or not? 13. There are no direct witnesses to show that the accused are the assailants of the deceased. The entire case rests upon the circumstantial evidence. When a case rests solely on circumstantial evidence, such evidence has to satisfy the following tests as laid down by the Apex Court in a decision reported in PADALA VEERA REDDY V. STATE OF ANDHRA PRADESH & OTHERS [1], wherein it was held that: “ 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogent 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.” Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. 14. P.Ws. 1 and 3 are the sisters and P.W.2 is the wife of the deceased. According to P.Ws. 1 and 3 a quarrel ensued between the deceased and A1 at the time of betting of cock fighting. P.Ws. 1 and 3 are not the eyewitnesses to the incident and they came to know about the same later. Therefore, their evidence is in the nature of hearsay and inadmissible under law. The deceased was having a cashew nut garden. On the date of incident during day time, the deceased and his family members performed Pooja in the garden. After returning from the thope, the deceased left the house to consume liquor. In the chief- examination, P.W.2 stated that A2 came to the house at about 7.00 P.M. and took her husband, but in the cross-examination, she stated that her husband left the house after returning home to consume liquor. Such is the case, A2 coming to the house of P.W.2 as testified in her chief-examination cannot be accepted. She also admitted that they went to the house of A5 on receiving information that her husband fell down. Then they brought the dead body of the deceased to the house immediately from the house of A5. According to P.W.1, she enquired P.W.5 about his brother who informed her that her brother has gone to the house of A5. Then she went to the house of A5 and enquired about his brother, A2 informed her that her brother already left the house. Then she returned to the house and enquired her sister-in-law about his brother, who in turn informed her that the deceased did not come. Again she went to the house of A5 and found a person lying on the ground in the middle room covered with a blanket. When she pulled the blanket, she found her brother under the blanket with bleeding through nose and mouth. Then she informed to her mother and other relatives and they brought the dead body to the house of the deceased. 15. Even if the evidence of P.Ws. 1 to 3 is to be accepted as true and correct, there was a quarrel between A1 and the deceased. From the evidence of P.Ws. 1 to 3, it is clear that the scene of occurrence is the house of A5. For the reasons best known to them, they brought the dead body to the house of the deceased. On the next day at about 9.00 A.M., P.W.1 lodged Ex.P1-complaint with P.W.9, who registered a case. The investigating officer prepared the crime detail form, which does not disclose whether the scene of occurrence lies. He also prepared Ex.P6-rough sketch, which shows that the scene of occurrence is near to the water tub, which is almost in the middle of the houses of the deceased and A5. No scene of occurrence report was scribed whether any blood stains were found at the scene of occurrence. No explanation is given by P.W.10 as to why he did not seize the blood stained earth and control earth in the house of A5. He also has not given any explanation for non seizure of blood stained blanket, which according to P.W.1 was covered on the dead body of the deceased. So in all probability the blood of the deceased came into contact with the blanket. This incriminating material has not been seized nor sent to the expert for opinion with regard to the finding that the human blood found on the blanket is the same group of blood of the deceased. As rightly contended by the learned counsel for the appellants, the origin and genesis of the occurrence has been suppressed by the prosecution. According to mediator, who was present at the time of observing scene of occurrence, the scene of occurrence is in the house of the deceased, whereas according to P.W.10- investigating officer, the scene of occurrence is in the house of A5 and whereas Ex.P6-rough sketch shows that the scene of occurrence is near the water tub, which is located in the middle of the houses of the deceased and A5. 16. The evidence of P.W.1 who set the criminal law into motion by lodging Ex.P1-report may not be accepted because according to her, her brother used to consume toddy prior to his marriage and after marriage, the deceased gave up his habit of consuming alcohol. According to P.W.2 (wife of the deceased), the deceased left the house after returning from garden to consume liquor. The evidence on record would go to show that A5 and his wife used to sell I.D. liquor to the customers. Therefore, for the purpose of consuming liquor, there is nothing unusual for the deceased to go to the house of A5. P.W.5 saw A1, A2 and the deceased at about 7.00 P.M. on the road and when he questioned them, they stated that they were going to the house of P.W.5. Within half an hour thereafter, P.W.1 came to him and enquired with regard to whereabouts of her brother. He informed her that the deceased was in the company of A1 and A2, who were proceeding to the house of A5. Even assuming for a moment that the evidence of P.Ws. 1 and 5 is to be accepted as true and correct that the deceased was last seen alive in the company of A1 and A2, that cannot be said to be an incriminating circumstance in view of the fact that the scene of occurrence is situated between the houses of A5 and the deceased. Therefore, the possibility of deceased falling on the sharp edged stone near the water tub and sustaining injury on the head, cannot be ruled out. That is the reason why P.W.2 admitted that they all went to the house of A5 on coming to know that her husband fell down. Therefore, when two views are reasonably possible on the evidence adduced by the prosecution, one in favour of the accused and the other in favour of the prosecution, the view, which is favourable to the accused has to be adopted. If the evidence of prosecution witnesses is to be accepted coupled with medical evidence, it suggests that one of the accused might have caused injury on the head of the deceased with a stone or a blunt object. Similarly, there is a possibility of deceased falling down on a sharp edged weapon because of the opinion expressed by the Doctor that the injury on the head of the deceased would be possible by falling on the projected sharp stone. Therefore, in the absence of any evidence to show that which of the accused caused injury on the head of the deceased, it is not safe to convict A1 of the charge under Section 302 IPC and A2 of the charge under Section 302 r/w 34 IPC in view of the fact that absolutely there is no evidence that A1 caused injury or that A2 shared common intention with A1 so as to eliminate the deceased. Similarly, there is no screening of evidence with a view to escape from the legal punishment by A1 and A2. These aspects have been completely overlooked by the trial Court. Therefore, we have no hesitation to hold that the appellants are entitled for acquittal. 17. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against A1 of the charge under Section 302 IPC, A2 of the charge under Section 302 r/w 34 IPC and A1 and A2 of the charge under Section 201 IPC, by the II Additional Sessions Judge, (Fast Track Court-I), Khammam, vide judgment, dated 27-02-2007 in Sessions Case No.319 of 2006. The appellants-A1 and A2 are found not guilty of the offences with which they were charged and accordingly, they are acquitted of the same. The appellants-A1 and A2 shall be released forthwith, if they are not required to be detained in any other case. Fine amount, if any, paid by the appellants-A1 and A2 shall be returned to them. ____________________ A.GOPAL REDDY, J _______________ K.C.BHANU, J DATED: 24-08-2010 Hsd [1] AIR 1990 Supreme Court 79