THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.244 of 2007 Date: 21.04.2010 Between : Kethavath Sreenu … Appellant And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.244 of 2007 ORAL JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) Heard Ms. Naseeb Afshan, learned counsel appearing for the appellant-accused as well as the learned Public Prosecutor appearing for the respondent-State. 2. Appellant is the sole accused in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 10.11.2005, in Sessions Case No.289 of 2004, passed by the III Additional District and Sessions Judge (Fast Track Court), Medak, convicting the appellant-accused for the offence under Section 302 of Indian Penal Code (for brevity “IPC”) and sentencing him to undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to suffer Simple Imprisonment for one year; further convicting the accused for the offence under Section 376 IPC and sentencing him to undergo imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to suffer Simple Imprisonment for three months; and further convicting the accused for the offence under Section 379 IPC and sentencing him to undergo imprisonment for three years and to pay a fine of Rs.1,500/-, in default to suffer Simple Imprisonment for five months. 4. The case of the prosecution, in brief, is that the Circle Inspector of Police, Medak Circle, has filed the charge sheet against the accused alleging that on or prior to 30.6.2003 at Beedi Workers Colony situated at the outskirts of Medak town, the accused took the deceased-Mallamma to a house under construction on a plea to provide her coolie work and after taking her there, forcibly committed rape on her by putting her in fear of dire consequences and murdered her by strangulating her with her saree and stolen away her gold kammalu and silver leg chains and thereby committed the offence punishable under Sections 376, 379 and 302 IPC. The charge sheet was filed after entire investigation and basing on the complaint lodged by defacto complainant. 5. When the charges were read over and explained to the accused, he pleaded not guilty and claim to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P-1 to P-10, besides marking MOs.1 to 9 material objects. On behalf of the accused, none were examined and no documents were marked. 7. The learned Sessions Judge, after evaluating the evidence adduced by the prosecution, placing reliance on the evidence of P.W.4 goldsmith, who deposed that he knew that the accused is the person who handed over the silver anklet on 1.7.2003 and further deposed that the accused is in the habit of selling ornaments, like MOs.1 and 2, convicted and sentenced the accused for the offences under Sections 302, 376 and 379 IPC, as stated above. Aggrieved by the same, the appellant-accused has preferred the present criminal appeal. 8. Learned counsel appearing for the appellant-accused assails the judgment of the trial Court on the following grounds: (a) there is no direct evidence available on record; (b) the only circumstance relied on by the learned Sessions Judge in convicting the accused is the evidence of P.W.4 goldsmith, which will not inspire any confidence; (c) there is no identification of the silver anklet and there is no explanation as regards the identification of the said silver anklet by P.W.1, husband of the deceased. Therefore, the learned counsel for the appellant-accused seeks to set aside the judgment of the learned Sessions Judge. 9. On the other hand, the learned Public Prosecutor sought to sustain the judgment of the learned Sessions Judge. 10. We have perused the entire record and the evidence adduced by the prosecution. 11. The only question that falls for consideration in this appeal is whether the trial Court was justified in convicting and sentencing the accused for the offence under Sections 302, 376 and 379 IPC? 12. The only piece of evidence available to connect the accused with the crime is the evidence of P.W.4 and the recovery of MOs.1 and 2. 13. It is seen from the record that the accused tried to sell another property on 1.5.2004. On credible information, P.W.11 investigating officer, reached the shop of P.W.4 with his staff where he recovered the property on the basis of the confession given by the accused. Further, it is the evidence of P.W.11 that the accused confessed his involvement not only in this case, but also in some other cases also. In view of the evidence given by P.W.11, the recovery of MOs.1 and 2 cannot be construed as a recovery under Section 27 of the Indian Evidence Act, since the evidence of P.W.4 is that he handed over MOs.1 and 2 to P.W.11 investigating officer. The said recovery is also after one year from the date of occurrence. 14. In view of the above, this Court is of the view that only relying on the evidence of P.W.4 and also placing reliance on the recovery of the property, which was also not properly proved by the witnesses in the Court, it is unsafe to convict a person for the offence under Sections 302, 376 and 379 IPC, which are grave in nature. 15. Therefore, the reasoning assigned by the learned Sessions Judge in convicting and sentencing the accused for the above offences is not merit acceptance and the prosecution has not proved its case beyond all reasonable doubt. Hence the conviction and sentence imposed by the learned Sessions Judge is liable to be set aside and the appellant-accused is entitled for the benefit of doubt. 16. In the result, the criminal appeal is allowed setting aside the impugned judgment, dated 10.11.2005, in Sessions Case No.289 of 2004, passed by the III Additional District and Sessions Judge (Fast Track Court), Medak, and the appellant-accused is acquitted of the offences with which he was charged and he shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellant-accused shall be refunded to him. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE RAJA ELANGO 21.04.2010. Msr THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.244 of 2007 21.04.2010 (Msr)