THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.1000 OF 2007 DATED: 19-01-2011 Between: Pathireddy Prabhakar Reddy …Appellant-accused And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.1000 OF 2007 JUDGMENT: (per THE HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal under Section 374 (2) of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is directed by the appellant-sole accused against the judgment, dated 03-08-2007 in Sessions Case No.249 of 2006, on the file of the Sessions Judge, Adilabad, whereunder and whereby the appellant-accused was convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo imprisonment for life and also to pay a fine of Rs.100/-, in default to undergo rigorous imprisonment for one month 2. Brief facts, that are necessary for disposal of the present appeal, may be depicted as follows: P.W.1 is the brother-in-law, P.W.3 is the brother and P.W.8 is the wife of Ennapareddy Mallaiah (hereinafter referred to as ‘the deceased’). On 03-07-2005 the deceased went to the house of P.W.1 for a sleep over as a formality as his mother died and on the next day, he left the house of P.W.1. At about 8.00 A.M., P.W.4 went to the house of one Chukkaiah, which is situated adjacent to the house of the accused. While he was leaving, the accused called him to his house, where he noticed the accused and the deceased consuming liquor. Accused also offered him a peg of liquor. P.W.4 consumed the same and left that place. While going, he saw P.W.5 going to the house of the accused, who went there to take some tablets and saw the accused and deceased together. At about 5.00 P.M., P.W.1 made a telephone call to the family members of the deceased and came to know that the deceased did not reach home. Then he went to the house of the accused and found the deceased in a pool of blood. Thereafter, he lodged Ex.P1 report to the police, basing on which, P.W.13-Sub Inspector of Police, Jaipur, registered a case in Cr.No.82 of 2005 and issued Ex.P11 F.I.R. Further investigation was taken over by P.W.14-Inspector of Police. He visited the scene of offence and prepared an observation report in the presence of P.Ws. 9 and 11 and held inquest over the dead body of the deceased in the presence of P.W.6 and subjected the dead body to post-mortem examination. P.W.7-Civil Assistant Surgeon, Government Hospital, Mancherial, held autopsy over the dead body of the deceased and opined that the cause of the death was due to shock and haemorrhage and he issued Ex.P5-post-mortem report. On 05-07-2005, P.W.14 arrested the accused and in pursuance of his statement, M.O.8-iron rod was recovered in the presence of P.Ws. 10 and 12 under Ex.P14 panchanama. He then forwarded all the material objects to RFSL and received Ex.P15- FSL report. After receipt of all the documents and completion of investigation, P.W.14 filed the charge sheet. 3. The learned Sessions Judge, framed the following charge against the accused: “That you on the 4th day of July, 2005 at about 10.00 A.M., in your house at Elkeswaram village of Jaipur mandal, after consuming ‘Gudumba’, in that intoxication, intentionally committed murder of the deceased viz., Ennapareddy Mallaiah s/o Banaiah, 52 years, R/o Nakkalapalli village of Kotapalli Mandal, by beating him with iron rod indiscriminately as he quarrelled with you that you were harassing your wife, and the deceased succumbed to the said injuries of beatings and 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. To bring home the guilt of the accused, the prosecution examined P.Ws. 1 to 14 and got marked Exs.P1 to 15 besides case properties, M.Os. 1 to 8. 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 oral evidence was adduced on behalf of the accused except marking Exs.D1 and D2, which are the portions in 161 Cr.P.C. statement of P.W.5. 6. The trial Court after considering the oral and documentary evidence available on record, convicted and sentenced the accused as indicated above. Challenging the same, the appellant-accused preferred this appeal. 7. Now the point that arises for consideration in this appeal is whether the prosecution has proved its case against the appellant-accused of the offence punishable under Section 302 IPC beyond all reasonable doubt? 8. Mr.C.Padmanabha Reddy, learned senior counsel appearing for the appellant-accused vehemently contended that the presence of P.Ws. 4 and 5 on the date of incident at about 8.00 A.M. is doubtful, that if the evidence of P.Ws. 4 and 5 is to be accepted, it only suggests that the deceased was last seen alive in the company of the accused, that it is not shown that the appellant is residing in that house where the dead body was found, that the prosecution has not come forward with true version of the incident, that the case of the prosecution is that the accused and the deceased were consuming alcohol in the morning time and if that is the case, some traces of alcohol or smell of alcohol would have noticed by the doctor who conducted post-mortem examination over the dead body of the deceased, that P.W.7 did not find any alcohol smell, that the contents of stomach were observed and sent to the Forensic Science Laboratory, but the report has not been brought on record, that even assuming for a moment that the evidence of P.Ws. 4 and 5 is to be accepted that the deceased was last seen alive in the company of the accused, that circumstance alone cannot be a ground to infer that the crime was committed by the accused and none else and therefore, he prays to set aside the conviction and sentence recorded against the appellant. 9. On the other hand, counsel representing the learned Public Prosecutor contended that the evidence of P.Ws. 4 and 5 is very clear that the deceased was last seen alive in the company of the accused, that their presence at the time of incident is quite probable and convincing, that recovery of M.O.8-iron rod is yet another circumstance to show that the accused is the assailant of the deceased, that the trial Court after an elaborate consideration of evidence on record rightly convicted and sentenced the accused and absolutely there are no grounds to interfere with the same. 10. P.W.6 is one of the inquest mediators who was present when police held inquest over the dead body of the deceased. The inquest mediators opined that the deceased died as a result of injuries sustained by him. 11. P.W.7 is the doctor who conducted autopsy over the dead body of the deceased, found the following injuries: 1. Incised wound 2/2 x ¼” on left blow the mandible. 2. Bruises 3 x 2” on let side of chest 3. Bruise on below the 2nd wound 4. Bruise on middle of left collar bone 5. Bruise on left shoulder 6. Abrasion 3 x 4” on left forearm 7. Swelling on upper lip and right nostril. Internal Injury: Fracture of ribs 2 to 7 in more than on site. Sternam broken 2” below the xiphi sternum. Blood clots below the skin on left chest wall. Blood found n the left plural cavity about ½ litre. Lungs collapsed. He opined that the death of the deceased was due to shock and haemorrhage from the wounds on the neck and chest probably with blunt object and he issued Ex.P5 post-mortem certificate. He specifically stated that he did not notice any alcohol contents in the stomach of the deceased though the stomach contents were preserved. He had no knowledge about the receipt of report from the F.S.L. Therefore, from the evidence of P.W.7 and the recitals in Ex.P5, it leaves no room to doubt that the death of the deceased is homicidal in nature. 12. Now it has to be seen whether the accused is the assailant of the deceased or not? 13. There are no direct witnesses to the incident. The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the decision reported in SHARAD BIRIDHICHAND SARDA V STATE OF MAHARASHTRA [1]. (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. 14. P.W.1 is the brother-in-law of the deceased. He is a resident of Elkeswaram village. The family members of the deceased informed him about the death of the deceased. Then he went to the house of the accused and saw the deceased in a pool of blood. Then he lodged Ex.P1 report with the police. According to him, the accused is having old house at the corner of the village and near by that old house, he was also constructing new house. Admittedly, the scene of occurrence is the house of the accused. The roof of the house was made of tins and no doors were fixed to the house. Therefore, his evidence is not much relevant for the purpose of deciding the presence of the accused in the company of the deceased. 15. P.W.2 is a resident of Elkeswaram village. He speaks that he went to the house of the accused and saw the dead body. Though he was declared hostile by the prosecution, still his evidence is very clear that the dead body of the deceased was found in the house of the accused. 16. P.W.3 deposed that he went to the house of the accused and saw the dead body of deceased. 17. Therefore, from the evidence of these witnesses, it is clear that the dead body of the deceased was found in the house of the accused. 18. The evidence of P.W.8, who is no other than the wife of the deceased is to the effect that on coming to know about the murder of the deceased, she rushed to the house of the accused and found her husband in a pool of blood. So, from the evidence of this witness, the dead body was found on the varandah (pial) of the house of the accused, which is under construction. The doors have not been fixed to the house. 19. P.Ws. 9 to 12 who speak about their presence at the time of inquest, scene of occurrence observation report, arrest of the accused and seizure of weapon used in the commission of offence, did not support the case of the prosecution. Therefore, their evidence is not much relevant for the purpose of showing that the accused is the assailant of the deceased. 20. The only circumstance relied upon by the prosecution is that the deceased was last seen alive in the company of the accused by consuming alcohol in the morning at about 8.00 A.M. on the date of incident. On this aspect, the learned senior counsel appearing for the appellant relied on a decision reported in DASARI SIVA PRASAD REDDY V PUBLIC PROSECUTOR, HIGH COURT OF A.P. [2], wherein it was held thus: “HOWEVER, there is one circumstance which is suggestive of the strong possibility of the presence of the accused at his house. As per PW3's evidence which was believed by the trial court, the appellant contacted him in the morning at 6 a. m. and brought PW3 to his house giving a hint that something untoward happened to his sister (i. e. the deceased ). Added to this, the accused, in the normal course, is expected to be at his house in the night. However, these factors need not give rise to an irresistible inference that the accused remained in the house in the previous night and the accused alone must have been responsible for the murder. At best, it can be said that the view taken by the trial court is not the only possible view. But, that is not enough to reverse the acquittal. A strong suspicion, no doubt, exists against the appellant but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case. The distance between 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. If, coupled with the circumstance unfolded by the evidence of PW3, the evidence of PW4 had been believed, it would have gone a long way in substantiating the prosecution case. But, in the instant case, apart from the fact that the appellant was at his house on the morning of 20th April, 1996, there is no other circumstance whatsoever which connects the accused to the crime, though serious suspicion looms large about his involvement. The view taken by the trial court that the prosecution could not establish the complete chain of circumstances incriminating the accused is a reasonably possible view and the High Court should not have disturbed the same. Having regard to the state of available evidence, the benefit of doubt given to the accused by the trial court warranted no interference by the High Court.” 21. According to the learned senior counsel appearing for the appellant, the presence of P.Ws. 4 and 5 at the house of the accused on the date of incident is doubtful because P.W.4 did not go to the house of the accused to consume alcohol at any point of time. According to P.W.4, he went to the house of Chukkaiah (L.W.7) to bring the plough. The house of Chukkaiah is quite opposite to the house of the accused. After taking plough from the house of Chukkaiah and while leaving the house, the accused called him. At that time, the accused and the deceased were consuming liquor sitting together. The accused offered him a peg of liquor. He consumed the same and returned back to his house. Chukkaiah was not examined to show that he provided plough to P.W.4. Further though the statement of P.W.4 under Section 164 Cr.P.C. was recorded by the Judicial Magistrate of I Class, Mancherial, the same has not been brought on record. 22. The evidence of P.W.5 would go to show that he went to the house of the accused for the purpose of getting tablets. Admittedly, the accused is neither a doctor nor running a clinic. Prior to the incident, he never went to the house of the accused so as to bring tablets or medicines. Therefore, the purpose of visit of P.W.5 to the house of the accused is not established. Even assuming for a moment that P.Ws. 4 and 5 went to the house of the accused and saw the deceased alive in the company of the accused at about 8.00 A.M., it does not lead to draw an irresistible conclusion that within all human probability the crime was committed by the accused and none else. At best, the presence of the accused in the company of the deceased give rise to a suspicion that the crime must have been committed by the accused. But, suspicion, however strong, cannot take the place of legal proof. So even if the evidence of P.Ws. 4 and 5 is to be accepted, the only circumstance is that the deceased was last seen alive in the company of the accused. That circumstance in our considered opinion is not sufficient to draw an inference that the accused is the assailant of the deceased. Admittedly, the dead body of the deceased was noticed in the evening time at about 5.00 P.M. Therefore, there was a time gap of seven hours from the deceased last seen alive in the company of the accused till the finding of dead body. So in between these seven hours, the possibility of committing murder of the deceased by outsiders cannot be ruled out in view of the fact that the house of the accused in which the dead body of the deceased was found, was having no doors. Therefore, anybody can enter into the house of the accused and cause the death of the deceased. The neighbours of the scene of occurrence have not been examined to show that soon after the death of the deceased or at the time of the crime or immediately after the crime, the accused was in the company of the deceased in the house of the accused. Therefore, in the absence of any other circumstances to show about the presence of the accused at the time of incident, convicting him by the trial Court on mere conjectures and suspicion is not sustainable. Though suspicion has no role to play in the offence of murder, at the same time, the entire case of prosecution is not based upon circumstantial evidence of trustworthy nature. Therefore, we have no hesitation to hold that the prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt and the judgment of the trial Court is liable to be set aside. 23. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the Sessions Judge, Adilabad, vide judgment, dated 03.08.2007 in Sessions Case No.249 of 2006, against the appellant/accused of the offence punishable under Section 302 I.P.C. The appellant/accused is found not guilty of the offence punishable under Section 302 IPC and accordingly, he is acquitted of the same. 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. _______________ K.C.BHANU, J ____________________________ N.R.L.NAGESWARA RAO, J DATED: 19-01-2011 Hsd [1] AIR 1984 SC 1622 [2] (2004) 11 SCC 282