THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.128 OF 2007 Between Rasamalla Sammaiah …Appellant-accused And State of A.P. through Circle Inspector Mandamarri, Adilabad District, 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.128 OF 2007 JUDGMENT: (per the HON’BLE SRI JUSTICE A.GOPAL REDDY) This Criminal Appeal by the appellant-sole accused under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against the judgment, dated 12-01-2007, in Sessions Case No.422 of 2005, on the file of the Sessions Judge, Adilabad, whereunder and whereby the appellant-accused was convicted of the charge under Section 302 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and sentenced to undergo Imprisonment for Life and also to pay a fine of Rs.100/-, in default to undergo Simple Imprisonment for a period of one month. 2. The case of the prosecution, in brief is as follows: On 14-08-2004 at 13.30 hours on telephonic information that one person was killed at Sripathinagar of Mandamarri, P.W.13 rushed to the spot, saw the dead body of Rasamalla Ramesh (hereinafter referred to as ‘the deceased’) with injuries on the face, head and chest. Subsequently, P.W.1 lodged the complaint to police on 14-08-2004 at 14.00 hours stating that at about 12.00 noon, he came to know that some unknown persons committed murder of the deceased and were trying to dispose of the dead body. Immediately he rushed there and on enquiry with the father of the deceased, he revealed that due to epilepsy (fits), his son fell on the ground, received injuries on vital organs and died. The neighbours stated that during last night at about 1.00 hour, the accused came to their houses and informed them that his son was suffering from fits and immediately they went to the spot and found that the premises at the spot were cleaned and so they expressed doubt about the death of the deceased that it may be a murder. The report was sent to the police station by P.W.13 through PC 2314. After receipt of Ex.P1-report, P.W.12 registered a case under Section 302 IPC and issued Ex.P13-FIR. In the mean time, P.W.14 rushed to the spot and took up investigation, examined the witnesses and recorded their statements and after securing the presence of P.Ws. 8 and 9, conducted inquest over the dead body of the deceased. After taking photographs through P.W.7, P.W.14 shifted the dead body of the deceased to the hospital for postmortem examination. P.W.11 after conducting autopsy over the dead body of the deceased issued Ex.P11 –opinion and preserved viscera for chemical analysis and report. During the course of further investigation, at about 10.00 hours, P.W.2 produced the accused before P.W.14 and stated that the accused confessed before him that due to harassment of his son, he suffered a lot and killed his son. Thereupon, P.W.14 secured the presence of P.Ws.13 and 15 and recorded the extra judicial confession of the accused. P.W.14 seized M.Os.1 and 2 in their presence and arrested the accused. Thereafter, P.W.14 sent the viscera of the deceased to RFSL for examination. The RFSL after examination, opined that no poisonous substances is found. Basing on the FSL report, P.W.14 collected final opinion from P.W.11, who opined that the cause of the death of the deceased was due to neurogenic shock due to multiple injuries. After completion of investigation, P.W.14 filed charge sheet. 3. The learned Sessions Judge, framed the following charge against the accused: “ That you on 13/14th day of August, 2004 at about 00.30 hours at Sreepathinagar, Mandamarri, intentionally committed murder of you son viz.,Rasamalla Ramesh, s/o Sammaiah, 28 years, Mala, Jeep driver, R/o H.No.50-195,Sreepathinagar,Mandamarri, by beating him with pestle on his face, head and chest, on the ground that he was harassing you both mentally and physically demanding huge amounts for his bad habits and that you thereby committed an offence punishable under Section 302 IPC.” When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P- 18 besides case property, M.Os.1 and 2. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court after analyzing the oral and documentary evidence on record, found the accused guilty and accordingly convicted and sentenced him as above. Challenging the said conviction and sentence, the present appeal has been preferred by the accused. 7. Learned counsel appearing for the appellant-accused contended that except the evidence of P.W.2, before whom the accused made extra judicial confession, there is no other evidence against the accused, that extra judicial confession made by the accused cannot be a sole basis for convicting him, that P.Ws. 3 to 6 and 8 to 10 were declared hostile by the prosecution, that therefore, it is not safe to base a conviction solely on the testimony of P.W.2 and hence, he prays to set aside the conviction and sentence recorded against the accused. 8. On the other hand, counsel representing the learned Public Prosecutor sustained conviction stating that P.W.2 is the Priest of the church, that in the absence of any enmity between P.W.2 and the accused, the evidence of P.W.2 cannot be disbelieved, that the other evidence also supports the extra judicial confession made by the accused before P.W.2, that the trial Court after elaborate consideration of evidence on record, rightly convicted and sentenced the accused and hence, absolutely there are no grounds to interfere with the said conviction and sentence. 9. Now, the point that arises for consideration, in this Criminal Appeal, is whether the prosecution has proved its case, against the accused of the charge under Section 302 IPC, beyond all reasonable doubt? 10. P.W.1 who set the criminal law into motion by lodging Ex.P1 report to police, stated that on the date of incident, at about 12 noon, he came to know that some unknown persons killed somebody and they are trying to burry the dead body to screen the evidence. He rushed to the scene of offence and found the deceased dead and on examination of the dead body, he found injuries on the dead body, which reveal that somebody killed the deceased. When he enquired the father of the deceased and other inhabitants of the locality, the accused told him that his son was having epilepsy and due to disease, he fell down on the ground and sustained injuries on vital organs and died. Later when the inhabitants of the locality questioned the accused, he reiterated the same version. In the night, the accused washed away the blood oozed on the ground, for which, they entertained a doubt that the accused might have killed the deceased or some other. He gave a report to the police suspecting that the father of the deceased killed the deceased. Accused was not found in the house at that time. He drafted Ex.P1 report to the dictation of police. He does not know personally anything about the death of the deceased. 11. P.W.2 who worked as a Priest of CSI Church, Mandamarri, deposed that he visited the house of the accused to perform the last rites of the deceased along with church elders to look into necessary arrangements. After going there, he saw the dead body of the deceased. When he asked the accused to take out the cloth, which was covered on the dead body and when the accused lifted the cloth, he found bleedings injuries on the neck and face. He suspected about the death of the deceased and tried to know the cause of the death. The accused stated to him that his son was suffering from fits and fell down in the bathroom. He was reluctant to conduct last rites of the deceased and asked the accused to inform to police. At about 10.00 or 11.00 AM, the accused went to church and after great counselling, he could be able to confess about the death of the deceased stating that he has been tortured by his son very regularly and there was a threat to his life by the deceased and to escape from the deceased, he took one stick and very brutally beat the deceased, as a result, the deceased died. In the cross-examination, he stated that the accused and the deceased are members of his church and they are not Christians. 12. P.W. 3 to 6 and 8 to 10 did not support the case of the prosecution and they were declared hostile by the prosecution. 13. P.W.7 is the photographer who took photographs of the dead body of the deceased at the scene of offence under Ex.P6. 14. P.W.11 is the doctor who conducted autopsy over the dead body of the deceased deposed that he found three external injuries on the dead body of the deceased, which might have been caused by a blunt weapon and the cause of the death of the deceased was due to neurogenic shock due to multiple injuries. He issued Ex.P10-postmortem report and on the basis of Ex.P11-FSL report, he issued final report under Ex.P12. 15. P.W.12 deposed that while he was in police station, he received a petition, which was sent by SI of police. Then he registered a case and sent the F.I.Rs to all concerned. Thereafter, he sent the CD file to the SI of police. 16. P.W.13 deposed that on 14-08-2004 at 13.30 hours he received a telephonic message stating that one person was killed. Then he immediately went there and found the dead body of the deceased. After receiving Ex.P1 complaint from P.W.1, he made an endorsement to the in charge of Mandamarri police station to register a case. Meanwhile Inspector of Police came to the scene of offence and he handed over the CD file to him for further investigation. 17. P.W.14-Inspector of police who conducted investigation deposed that on 23-08-2004, P.W.2 brought the accused at 10.00 hours and stated that the accused confessed before him that the accused killed his son. He examined and recorded the statement of P.W.2. He secured the presence of P.W.10 and one K.Babu and in their presence, he recorded the confessional statement of the accused. After recording the confessional statement in the police station, the accused took the panchayatdars to his house and produced weapon of offence i.e., M.O.2 and the same was seized under Ex.P15 panchanama. 18. P.W.15 who is the witness for recovery of M.O.2 did not support the case of the prosecution and he was declared hostile by the prosecution. 19. The learned Sessions Judge, who convicted the accused solely on the basis of extra judicial confession, held that simply because there is no other evidence except the extra judicial confession, it cannot be said that the prosecution failed to establish the guilt of the accused, but, considering the evidence of P.W.2, who went to the house of the accused and noticed the body of the deceased with injuries on his neck and face and as the accused confessed before him that he killed the deceased, conviction was recorded against the accused. 20. As noted above, the prosecution relies upon the evidence of P.W.2 before whom, the accused made extra judicial confession stating that he killed the deceased. Therefore, his evidence has to be scrutinized carefully. 21. According to P.W.1, he lodged a report, basing on which, crime was registered at 14.00 hours and he visited the scene of offence. Whereas the evidence of P.W.2 shows that when he was asked to perform the last rites of the deceased, he rushed to the house of the deceased along with some other church elders and returned to church at 11 A.M. Then the accused went to the church and able to confess about the death of the deceased. When he is a Priest of the church and responsible person, it is for him to report the matter to the police when the accused confessed before him. Further when the police visited the scene of offence, he has not stated to them about the confession made by the accused before him on the same day. But as per the evidence of P.W.14, it is clear that P.W.2 took the accused on 23-08-2004 at 10.00 hours to his office at Mandamarri and stated that the accused confessed before him that the accused killed his son. We find some artificiality in the evidence of this witness for the reason that the accused does not have any special reason to make a confession to this witness going to the church at 10.00 or 11.00 AM. His evidence is doubtful for the reason that he has not informed to police about the confession made by the accused when the police visited the scene of offence. If his evidence is excluded from the record, there is no other evidence adduced by the prosecution to connect the accused with the crime. Therefore, it is not safe to base a conviction solely relying upon the uncorroborated evidence of P.W.2. Hence, the conviction and sentence recorded against the accused are liable to be set aside. 22. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against the appellant- accused of the charge under Section 302 IPC, by the Sessions Judge, Adilabad, vide judgment, dated 12-01-2007, in Sessions Case No.422 of 2005. The appellant- accused is found not guilty of the charge under Section 302 IPC and accordingly, he is acquitted of the said charge. The appellant- accused shall be released forthwith, if he is not required to be detained in any other case. Fine amount, if any, paid by the appellant-accused shall be returned to him. -------------------------------------- JUSTICE A.GOPAL REDDY ------------------------------- JUSTICE K.C.BHANU DATED: 21-06-2010 Hsd