IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SEVENTH DAY OF JULY, TWO THOUSAND AND ELEVEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1749 OF 2007 Between: Thammisetti Nookaratnam … Appellant And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad and others … Respondent This court made the following: - HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1749 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Redddy) The appellant/sole accused, who was put on trial for the offence punishable under Section 302 IPC in Sessions Case No.4 of 2007 on the file of Metropolitan Sessions Judge-cum- I Additional District & Sessions Judge, Visakhapatnam was found guilty and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for six months, by judgment, dated 28.11.2007, preferred this appeal challenging the conviction and sentence recorded against him. 2. The case of the prosecution in brief is stated as follows: - The marriage between one Thammisetti Srinu @ Srinivas (hereinafter referred to as, “the deceased”) and the accused was performed about 12 years ago. They were blessed with a son. Ever since their marriage, the deceased did not lead conjugal life with his wife continuously. The deceased used to abandon his wife now and then and again join her, after a period of time. The accused used to stay in her parents house and eaking her livelihood by doing works at the shops. Finally they took portion of the house of P.W.2 and used to reside as tenants. Still the deceased used to harass the accused to bring more money towards dowry from her parents. On the intervening night of 12/13.06.2006 deceased returned to his house in an intoxicating state of mind and harassed the accused demanding her to bring dowry amount from her parents and threatened her with point of knife. Thereafter, the deceased slept on the cot after keeping the knife underneath the pillow. During the same night accused with an intention to cause the death of the deceased cut the throat of the deceased who was slept with a knife. Thereafter the accused through away the blood stained knife underneath the steps i.e., under the stair case in front of the house and went to the house of P.W.1 and informed him about the incident. The deceased, who was in the last breath, woke up with the bleeding injury on the neck and came out from the room, reached the owner of the house inside the compound and died there. On hearing the cries, P.W.2 rushed to the spot and noticed the accused escaping from the house and the deceased dead. On 13.06.2006 P.W.1 handed over the accused to the police by presenting a report for taking necessary action. On the report of P.W.1, P.W.10 registered a case in Crime No.295 of 2006 under Section 302 IPC of Kancharapalem police Station and took up investigation. During the course of investigation, P.W.10 arrested the accused and on her confession recovered the material objects; inspected the scene of offence; prepared observation report; held inquest over the dead body of the deceased; sent the material objects for chemical analysis. P.W.15, the Doctor, conducted post mortem on the dead body of the deceased issued Ex.P9 post mortem certificate opining that the deceased died due to shock and haemorrhage and due to left to right cut throat wound of neck. After completion of investigation, L.W.18 filed charge sheet. 3. On committal, the learned Sessions Judge, framed charge under Section 302 IPC and when the same was read over to the accused in Telugu, she denied the same and claimed to be tried. 4. In support of its case, the prosecution got examined P.Ws.1 to 10 and got marked Ex.P1 to P14 and M.Os.1 and 2. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against her. No oral or documentary evidence has been adduced on behalf of the accused. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charge framed against her and sentenced her to imprisonment as aforementioned. 6. Heard both sides and perused the entire records. 7. The point that arises for consideration is: - “Whether the prosecution proved the guilt of the accused for the offence under Section 302 IPC beyond reasonable doubt?” P O I N T : - 8. P.Ws.1 and 2, who are the material witnesses to the case of the prosecution, did not support the prosecution case and turned hostile. P.Ws.3, 5 and 6, who are the mediators to speak about the arrest of the accused; recording of her confessional statement; drafting of scene of observation report and seizure of material objects, also did not support the case of the prosecution and they were turned hostile. 9. The only evidence on which the lower court convicted the accused is the extra judicial confession made by the accused to P.W.1. But P.W.1 has not supported the case of the prosecution and stated in his chief- examination that the accused never approached him and confessed about the guilt of the accused and sought for his help; that he never gave report to the police with regard to the death of the accused. When he was cross-examined by the Public Prosecutor, he stated that he himself drafted the complaint Ex.P2 and affixed his signature; that the handwriting in the said complaint is his handwriting; and that the contents of the said complaint in which his signature is appearing are correct. It is true that the accused approached him on 13.06.2006 and that his producing her before the police is correct. He further stated that on that day at the instance of police he went to police station. While he was sitting in the chamber of C.I. of police, he sent for the accused, then the accused came before him; he questioned about the death of her husband; at that time accused stated that she herself killed her husband, then he requested the police to help the accused. Ex.P2 is the report given by him to the police. In the cross- examination by the defence, P.W.1 stated that he drafted Ex.P2 complaint while accused was narrating the incident to him. The evidence of P.W.1 clearly discloses that the accused was in custody and it has not lead to any seizure of the weapon and the same is hit by Section 27 of the Indian Evidence Act, 1872. Therefore, the said confession cannot be taken into consideration to convict the accused. 10. In view of the above discussion, the lower court has committed an error in convicting the accused merely basing on the confessional statement made by the accused before P.W.1 and the evidence of P.W.1. Therefore, the conviction and sentence recorded by the lower court against the accused is hereby set aside and the accused is entitled for acquittal. 11. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the Metropolitan Sessions Judge-cum-I Additional District & Sessions Judge, Visakhapatnam, in Sessions Case No.4 of 2007 on 28.11.2007 for the offence punishable under Section 302 of the Indian Penal Code is hereby set aside and the appellant is acquitted for the said offence. Appellant be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ______________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J 27-07-2011 Lmv HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1749 OF 2007 27-07-2011 lmv HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1269 OF 2007 & CRIMINAL REVISION CASE No.1367 of 2009 ADVANCE ORDER: - (Per AGR, J.) The conviction of A12 and A14 for the offence punishable under Section 302 IPC and sentence of imprisonment for life and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for a period of six months, recorded in Sessions Case No.136 of 2002, dated 12.09.2007, by VI Additional District & Sessions Judge, (Fast Track Court), Markapur is confirmed. The conviction of A2 and A6 for the offence under Section 304 Part I IPC and the sentence of imprisonment for a period of ten years is modified. Instead they are sentenced to undergo Rigorous Imprisonment for a period of seven years. The conviction of A1, A7, A9, A10, A11, A13 & A15 for the offence under Section 326 IPC; A1, A7, A9, A2, A10, A11, A13, A15, A6, A12 and A14 for the offence under Section 324 IPC; and A1, A2, A6, A7, A9, A10, A11, A12, A13, A14 and A15 for the offence under Section 148 IPC is modified to the period already undergone. The remand period during the investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. The Criminal Appeal is partly allowed to the extent indicated above and the Criminal Revision Case is dismissed. (Judgment follows) _____________________ A.GOPAL REDDY, J. __________________ RAJA ELANGO, J Note: After dispatching the Advance Order, please immediately send the entire case bundle to the Court Masters' Section for transcribing full text of the judgment. B/o. Lmv