THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1410 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment, dated 27.06.2007, passed by the Principal Sessions Judge, West Godavari, Eluru in S.C.No.132 of 2007, whereunder and whereby the appellant/accused was found guilty of the offence under Section 302 I.P.C., and was convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for disposal of this case are as follows: Pasalapudi Nagabhushanam (hereinafter referred to as ‘the accused’) was working as a quarry worker and Kakarla Ramadasu (hereinafter referred to as ‘the deceased’) was working as a driver on quarry lorries and they became friends. Subsequently, the accused started running a petty Coffee Hotel-cum-Pawn Shop at Gajjaram Village and thereby living along with his family. Due to the friendship, the deceased used to stop at the hotel of the accused during transit by lorry and developed illicit intimacy with the wife of the accused viz., Pasalapudi Swarnalatha during the temporary absence of the accused, since four years prior to the date of offence by deliberately speaking with the said Swarnalatha in the presence of the accused itself. On coming to know about the same, the accused admonished his wife, but no use. As the matter was proclaimed in the Village, the accused put the matter before the elders and asked them to admonish the deceased, or else, the deceased would have to face dire consequences. But, the deceased did not choose to mend his ways and continued the illicit intimacy with the wife of the accused by threatening her both mentally and physically and projected their affairs in the eye of the public treating the accused as useless fellow. Thereupon, the accused again placed the matter before the elders as well as the Lorry Workers Union at Kovvur on 16.08.2005. On that the deceased promised to abandon his illicit intimacy with the wife of the accused. But the deceased failed to keep up his promise and took the wife of the accused to the side of River of Godavari bund and abused her besides manhandling. Due to the said incidents, the accused developed grudge against the deceased, and was openly saying that he would get rid of him and waiting for an opportunity. While so, on 22.08.2005, the accused rendered treatment to his wife at Rajahmundry, returned to the home around 8.00 p.m., and went to bed by securing a knife “Marukathi”, which was about 13½” sharp blade and concealed the same at his bed. On the same day, at about 11.30 p.m., the deceased arrived by a tanker lorry bearing Registration No.AIT 26 along with the lorry cleaner and parked the lorry in front of the hotel cum house of the accused to meet the wife of the accused. The accused, who was armed with a knife, woke up and pounced upon the deceased with a clear intention to do away with the life of the deceased by stabbing. On observing the same, the deceased rushed back and boarded his lorry and while driving the lorry towards Gajjaram Village side slowly, the accused rushed behind, boarded into the lorry and tried to attack the deceased with the knife by standing on the back of driver’s seat. In that struggle, the deceased pressed down the neck of the accused and at that juncture, the accused hacked the deceased with the knife and caused an incised wound on the upper part of the posterior aspect and left fore-arm. In order to rescue himself the deceased jumped from the lorry from the right side and the lorry cleaner also alighted from the lorry from left side. Then the accused also jumped from the lorry and hacked the deceased thrice with the same knife from his behind and caused incised wounds on the right and left occipital regions of the scalp and left side of neck below the cheek, due to which the deceased collapsed on the Panchayat dried drain situated on the northern side of Tallapudi-Gopavaram R & B Road near Manikanta Saw Mill and died instantaneously. After confirming the death of the deceased, the accused himself voluntarily came to Tallapudi Police Station with the blood stained crime weapon at about 3.00 a.m., on 23.08.2005, and surrendered before Head Constable 907, who in turn secured the presence of mediators, recorded the confession statement of the accused under the cover of mediators report and registered a case in Crime No.52 of 2005, and later, the Police Officials concluded further investigation in this case and finally laid charge sheet against the accused. 3. To substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.32, besides case properties M.Os.1 to 11. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 4. P.W.1, who is the mother of the deceased deposed that the deceased was working as lorry driver in Suggonda Factory and that on 23.08.2005 on coming to know about the incident, herself, her husband, daughter and relatives proceeded to the scene of offence and saw the dead body of the deceased lying in the bode. She observed stab injuries on skull, near neck, left hand and stomach on the body of the deceased. She further deposed that the deceased was having illicit intimacy with the wife of the accused, and therefore, the accused bore grudge against the deceased and thereby murdered him. 5. P.W.2, who worked as the Surpanch of Pochavaram Village at the relevant time, deposed that on 15.08.2005 the accused came to his house in the morning time and informed that the deceased was having illicit intimacy with his wife and asked him to take action and if no action is taken, he will do away the life of the deceased; that he advised the deceased not to have any connection with the wife of the accused; that he also called for the parents of the deceased and warned them to see that the deceased shall not continue the activities with the wife of the accused and that on 23.08.2005 at morning hours he learnt that the deceased was murdered and thereby he went to the scene of offence and saw the dead body of the deceased lying in the bode with cut injuries on his neck, chest, left hand, stomach etc. 6. P.W.3, who is a resident of Pochavaram Village, deposed on the same lines to that of P.W.2, since he also accompanied P.W.2 when the accused complained about the illicit intimacy between his wife and the deceased. 7. P.W.4, who is a resident of Gajjaram deposed about the illicit intimacy between the deceased and the wife of the accused. He further deposed that on 23.08.2005 morning he saw the dead body of the deceased lying in the bode with cut injuries and that by the side of the said bode, a lorry was stationed. 8. P.W.5, who is the photographer, deposed that he took photographs of the dead body of the deceased near the scene offence under Exs.P.1 to P.10. 9. P.W.6, who is working as cleaner of the lorry and who claims to be the eyewitness, deposed that on 22.08.2005 he visited Suggonda Factory and the deceased, who was the driver of the said lorry, asked him to accompany him as a cleaner; that the lorry was loaded with caustic soda and proceeded to Gajjaram Village; that before proceeding, they kept the lorry in a Petrol Bunk and went to their respective houses in order to take meals; that at about 10.30 p.m., they returned to the petrol bunk and proceeded to Vijayawada; that on the way, the deceased stopped the lorry near a hotel at Gajjaram Village; that in front of the said hotel, the wife of the accused was standing and the deceased abused her, for which, she also abused him; that at that time the accused armed with a knife, came in front of the house and on observing the same, the deceased started the lorry and proceeded; that the accused came behind the lorry by running and entered into the cabin from the driver’s side, caught hold of the deceased and hacked him with the knife on his left hand and that due to fear he (P.W.6) jumped from the cabin and went away, due to which, he sustained injury to his head. He also deposed that the accused caught hold of him and raised knife stating that he would kill him and abused him. Then he requested the accused not to do any harm to him by falling on his feet, but, the wife of the accused instructed the accused not to spare him and kill him. He further deposed that the accused caught hold of the collar of his shirt and dragged him to some distance and thereafter, the accused left him and went away and that he was at the field throughout night due to fear and on the next day morning he went to his house. At this stage, though he was declared hostile, in the cross examination, he denied that he did not state before the police as stated in Ex.P.21. 10. P.W.7 is the Panchayat Secretary of Tallapudi Village. He recorded Ex.P.22 statement of the accused with regard to recovery of M.O.1-blood stained knife from the accused. He got drafted the scene of observation report under Ex.P.25 and inquest report under Ex.P.27. 11. P.W.8, who is also a resident of Gajjaram Village, deposed that he was present when inquest was held over the dead body of the deceased and that all the Panchayatdars opined that the deceased died due to the injuries sustained by him and the death was homicidal in nature. 12. P.W.9, who is also a resident of Gajjaram Village, turned hostile. 13. P.W.10- the doctor, who conducted autopsy over the dead body of the deceased, found the following injuries: 1. There is a incised wound over the occipital region on right side horizontal in line, size of 4” x ½” size underlying bone is visible and in tact. Red in colour. 2. There is a incised wound on the left side of the occipital region on scalp 3” x 1” red, underlying bone is visible and broken. Horizontal underline red in colour. 3. There is a incised wound on the left side neck below the right cheek 2” in size and 1 ½” x 1” depth, red in colour, underlying muscles are visible. 4. There is a incised wound on the upper part of posterior aspect of left fore arm, size of 2” x ½” red in colour, underlying are visible and intact. He issued Ex.P.29 - post mortem certificate opining that the cause of death was cardio respiratory failure due to shock, internal and external injuries and injury to neck vessels caused by a sharp edged weapon like M.O.1. 14. P.W.11, who is working as Police Constable at Tallapudi Police Station deposed that on 23.08.2005, as per the instructions of the Station House Officer, he took the dead body of the deceased to Government Hospital, Kovvur, for conducting postmortem examination and that after completion of postmortem examination, he handed over the dead body of the deceased to his relatives. 15. P.W.12, who is the then Sub Inspector of Police, Kovvuru Town Police Station, deposed that on 23.08.2005, on receiving a phone call from H.C.907 of Tallapudi Police Station, he visited Tallapudi Police Station along with mediators, examined the accused, seized the blood stained banion of the accused and knife - M.O.1 under Ex.P.24. He further deposed that on the same day he visited the scene of offence along with mediators, got drafted observation report under Ex.P.25, seized M.Os.3 to 11 under the cover of mediators report, conducted inquest over the dead body of the deceased as per Ex.P.27, examined the witnesses, recorded their statements and thereafter sent the dead body for postmortem examination. 16. P.W.13, who is the Circle Inspector of Police, deposed that he took up the investigation done by P.W.12, verified the same, examined the witnesses and forwarded the material objects, which were seized by P.W.12 to R.F.S.L., Vijayawada. After completion of investigation and receipt of relevant reports, he laid charge sheet against the accused. 17. From the above said evidence adduced by the witnesses, it is evident that the deceased and the accused had previous enmity in connection with the illicit intimacy of the deceased with the wife of the accused. The same was illustrated by the mediators, who effected mediation between the accused and the deceased. Even though the prosecution proved the motive by way of adducing the evidence, the entire case of the prosecution is based on the confession given by the accused on the date of occurrence at 5.00 a.m., before the mediators. 18. Admittedly, the occurrence took place on 22.08.2005 at about 11.00 p.m. As per the evidence of P.W.12, the accused went to the police station and informed H.C.907 regarding the offence committed by him and that the said Head Constable informed him regarding registration of First Information Report on the basis of confession made by the accused. But, a perusal of the record clearly discloses that before the mediators the accused confessed regarding the crime and the same was recorded by P.W.12 and that he recovered M.O.1 knife from the accused. It is unfortunate to note that there is failure on the part of the Head Constable to record the confession given by the accused and to register the same as First Information Report. The said Head Constable was not examined before the Court. When the accused was in the custody of the police, the subsequent statement, if any recorded, which amounts to confession, is not admissible in law. Further, recovery of M.O.1 is not discovery of fact as per the provisions of the Indian Evidence Act, 1872. It is the case of the prosecution that the accused himself produced the knife before the concerned police officer. Hence, it is clear that the first information given by the accused regarding the commission of occurrence is suppressed by the Investigating Officer. After lapse of some time i.e., on arrival of mediators and P.W.12, confession statement was recorded and the knife was also recovered. Further, the said extra judicial confession made before the Head Constable 907 was not recorded. Hence, initiation of the investigation by the Investigating Officer is on whose report is still in question. If the investigation was started on the basis of the mediators’ report, in view of the evidence adduced by P.W.12, the said mediators’ report is hit by Section 162 Cr.P.C., since the said statement recorded in the presence of mediators is not admissible in law. Further, the said statement is also not marked. There is no explanation by the prosecution that how the investigation proceeded, in the absence of any complaint. 19. Learned Public Prosecutor submitted that the evidence of P.W.6, who is an injured present at the scene of occurrence, can be relied upon and conviction can be sustained. 20. A perusal of the evidence adduced by P.W.6 who claims to be the cleaner and accompanied the deceased on the fateful day, would disclose that his name was also recorded in the mediators report when the accused confessed regarding the crime. The case of P.W.6 is that he also sustained injury and to substantiate the same no documents were produced by the prosecution to show that he received injuries. Further, the date of occurrence is 22.08.2005 and P.W.6 was examined by the Police on 25.08.2005 i.e., after three days of the incident. The evidence of P.W.6 does not inspire confidence of this Court in view of the fact that the manner in which the injuries were sustained by the deceased are totally contrary to his evidence. Further, the said witness was also treated as hostile, since he has not stated the specific overt acts. Hence, in the absence of any material to substantiate under which the investigation was started, the subsequent statements recorded and the Material Objects collected by the Investigating Officer would fail. The prosecution failed to substantiate its case and the only eyewitness P.W.6 also not inspired the confidence of this Court. Hence, this Court is of the view that it is highly unsafe to convict the accused for an offence under Section 302 I.P.C, which is punishable with death or imprisonment for life, by placing reliance on the evidence of P.W.6. Hence, the impugned judgment is liable to be set aside. 21. Accordingly, the conviction and sentence recorded by the Principal Sessions Judge, West Godavari, Eluru, in S.C.No.132 of 2007 against the appellant/accused for the offence punishable under Section 302 I.P.C., are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant, shall be refunded. 22. In the result, the Criminal Appeal is allowed. _________________ A.GOPAL REDDY, J Dt.27.06.2011 _________________ RAJA ELANGO, J va