THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJ CRIMINAL APPEAL No.2021 of 2004 BETWEEEN: Bandari Kistaiah … Appellant AND State of Andhra Pradesh though the Circle Inspector of Police … Respondent THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2021 of 2004 JUDGMENT: The Appellant/A1 was convicted by the lower Court under Section 364 I.P.C. and was sentenced to rigorous imprisonment of three years and ﬁne of Rs.2,000/-. Questioning the same, A1 filed this appeal. 2. This is a case of abducting the deceased Bhukya Chandar by four persons and subsequently killing the said abducted person. The case was ﬁled originally against A1 to A6. In the lower Court, A1 alone faced trial and received the Judgment under appeal. It is stated that pervious trial against A2 to A5 ended in their favour acquitting them. Though A1 was charged by the lower Court for oﬀences under Sections 364, 148, 302/149 and 201 I.P.C., the lower Court found A1 not guilty under Sections 148, 302/149 and 201 I.P.C. and found guilty under Section 364 I.P.C. only, after trial. 3. Though there is evidence of PWs 1 to 3 with regard to abduction of the deceased Bhukya Chandar from his house, it is only PW1 who spoke to the alleged participation of A1 in this case. PW1 is no other than wife of the deceased, Bhukya Chandar. It is the prosecution case that A1 bore grudge against the deceased in connection with a dispute regarding hand loan of Rs.10,000/- and that therefore, A1 contacted his friend A2 and engaged A3 to A5 for killing the deceased and that A1 secured car from PW10 which car was being driven by PW11 and that A3 to A5 went to house of the deceased on 30.04.1995 at about 8:30 P.M. when A2 showed house of the deceased to A3 to A5 and that on threats, they got the deceased Bhukya Chandar boarded into the car and was taken away from his house. After few days, his dead body which was partly burnt, was found in the outskirts of Nallagonda Village of Kodimiyal Mandal. 4. Insofar as this appeal relating to the oﬀence under Section 364 I.P.C. is concerned, PWs 1 to 3 and 11 are the relevant witnesses. PW11 turned hostile to the prosecution totally. Though PWs 2 and 3 spoke about abduction of the deceased Bhukya Chandar from his house on the night by three persons while another person sitting in the car, they did not identify any of those four persons who took away the deceased from his house. PWs 2 and 3 did not know A1 at all. PW2 deposed that A1 was not there among those four persons. PW3 says that he does not know whether A1 was present in the persons who got down from the car. 5. It is evidence of PW1 that four persons came in a car to their house at about 9:00 P.M. and got down. According to PW1, they were covering their faces with masks. She says that she can identify those four persons who came in the said car and that A1 was present among those four persons. When those four persons were covering their faces with masks, it is not known how PW1 could identify A1 as one of the said persons. She admits that she did not mention in Ex.P1 report that A1 came in the same white car. It is PW1 who gave Ex.P1 to the Police on the same night. A1 is a known person to PW1. In Ex.P1, PW1 narrated about previous quarrel which took place between the deceased and A1 regarding money. But, PW1 did not state in Ex.P1 about A1 being one of the persons who abducted her husband from his house. This is a basic inﬁrmity in Ex.P1. If really A1 was also one of the persons who abducted the deceased from his house, PW1 would not have failed to mention his name in Ex.P1 as the person among those four persons who got down from the car. As pointed out earlier, it is not prosecution case at all that A1 was also present among the persons who abducted the deceased from his house in the car. According to the prosecution, at the instance of A1, A2 to A5 abducted the deceased from his house. Therefore, PW1’s evidence during trial that A1 was also one of the persons who took the deceased in the car, cannot be believed as it is a subsequent development. In cross-examination, PW1 deposed that she does not remember whether she stated to the Police in the statement recorded under Section 161(3) Cr.P.C. about A1 being present in the car on that day. In these circumstances, the lower Court erred in ﬁnding A1 guilty under Section 364 I.P.C., as there is no acceptable evidence on that aspect. 6. In the result, the Criminal Appeal is allowed setting aside the conviction and the sentence passed by the lower Court against the appellant/A1 and acquitting him. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:07.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2021 of 2004 Dt:07.12.2011 ysk