HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.225 OF 2007 Dated:26-07-2011 BETWEEN: Cheunnupati Surendra Chowdary @ Surendra Babu …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.225 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant-sole accused was put on trial for the offence under Section 302 I.P.C. in S.C.No.644 of 2005 on the file of II Additional Sessions Judge, Guntur. By judgment dated 06.11.2006 the appellant was convicted for the offence under Section 302 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default to suffer rigorous imprisonment for one week. Hence the present appeal by the appellant-accused. 2. The gravamen of the charge against the accused is that on 9/10.4.2005 at about night time by the side of N.H.-5 by-pass road near to the Happy resorts to a place of thorny bushes in Atmakuru village limits, did commit murder by intentionally causing the death of Taripe Nagamani (hereinafter called as ‘deceased’) by squeezing her neck with the help of his belt after sexually enjoying her for three times. 3. The story of the prosecution as narrated during the course of trial is as under: The accused is the R.M.P. Doctor. The deceased is the resident of Vijayawada and daughter of P.Ws.4 and 5 and sister of P.W.6. Her husband died and she along with her children was residing with P.Ws.4 to 6 at Vijayawada. As she has no livelihood, she approached P.W.8 who is maintaining some girls for the purpose of prostitution and joined in the house of P.W.8 for the said purpose. The accused was running his clinic in the premises of P.W.13 for rent. He took the motorcycle of P.W.12 for use. He was in the habit of enjoying with call girls at various places including the girls in the house of P.W.8, where P.Ws.9 to 11 were residing. On 9/10.4.2005 the accused went to the house of P.W.8 at Mangalagiri on the motorcycle bearing No.AP 27J 1121 and wanted a girl to be taken with him for the night. P.W.8 sent the deceased with the accused after collecting Rs.600/- from him. Accused moved with the deceased at some places and finally took her to the side of N.H.5 by-pass road near to the Happy resorts to a place of thorny bushes situated in Atmakuru village limits and sexually enjoyed with the deceased for three times by using “Nirodhs” at that place in the night. Accused wanted to enjoy with the deceased for the 4th time for which the deceased objected and demanded for payment of Rs.400/- more from the accused. Hence the accused grew wild against the accused and they had a wordy quarrel in that regard. The accused having developed grouse against the deceased squeezed her neck with the help of his belt and killed her on the spot and escaped from the place. On 10.4.2005 P.W.1-Panchayat Secretary of Atmakur, P.W.2-village servant, P.W.3 and some other villagers found the dead body of the deceased at the place of occurrence and P.W.1 sent Ex.P.1 report to the Mangalagiri Rural Police Station. The Sub-Inspector of Police-P.W.19 registered a case in Crime No.58 of 2005 under Section 174 Cr.P.C. and took up investigation. He inspected the scene of offence in the presence of P.W.15 and others under the cover of mahazar, seized 3 used Nirodhs, pair of Hawai chappals, one litre kinley empty water bottle, Hayward’s fine Whisky 180 ML empty bottle with its lid, one empty water pouch etc. He prepared rough sketch of scene of offence besides observation report. P.W.19-Inspector of Police held inquest over the dead body of the deceased on 11.4.2005 and sent the dead body for post-mortem examination. P.W.17-Medical Officer, Government Hospital, Mangalagiri conducted autopsy over the dead body of the deceased and issued Ex.P.6-post-mortem report. She opined that the cause of death of the deceased was due to asphyxia due to smothering. Basing on the final report of the said doctor, P.W.19 altered the section of law to 302 I.P.C. on 27.7.2005 and L.W.22- Inspector of Police continued the further investigation. He arrested the accused on 8.8.2005 at 9.00 a.m. when he was found with motorcycle AP 27J 1121 and seized the motorcycle. In pursuance of the confession of the accused in the presence of P.W.16 and another, the accused took L.W.22 and others to a place, which is 120’ away from the scene of offence and picked up a belt used by him for killing the deceased. On 27.8.2005 the Special Judicial First Class Magistrate for Prohibition and Excise, Guntur-P.W.18 conducted test identification of accused by P.Ws.8 to 11 in which P.Ws.8 to 11 correctly identified the accused to be the person who had taken the deceased on the night of 9.4.2005 on the motorcycle. After receipt of relevant reports and after completion of investigation, L.W.22 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charge against the accused, read over the same and explained it to the accused in Telugu. The accused denied the charge and claimed to be tried. 4. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 20 and marked Exs.P.1 to P.12. On behalf of defence, no oral or documentary evidence was adduced. 5. The learned Sessions Judge having closely appreciated the material evidence on record including the relevant documents and materials exhibited before him as well as upon hearing the learned counsel for the parties, came to the conclusion that the prosecution proved its case against the appellant as regards the killing of the deceased beyond reasonable doubt and accordingly, the accused-appellant was convicted and sentenced as indicated above. 6. We have heard the learned counsel appearing for the appellant and also learned Public Prosecutor who have taken us through the entire evidence and the findings of the learned Sessions Judge. 7. Admittedly, there is no direct evidence. The entire case rests on the circumstantial evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case, P.W.8 and her daughter-P.Ws.9 and P.W.10, mother of P.W.8 all speak about the accused taking the deceased with him on 9.4.2005 on his motorcycle bearing No.AP 27J 1121-M.O.1. P.W.8, who is running the brothel house at Mangalagiri was paid Rs.600/- by the accused for taking the deceased with him. On the next day at 10.00 a.m. the dead body of the deceased was found at the scene of offence. On receipt of information, P.Ws.1,2 and others went to the scene of offence. Then P.W.1 went to the police station and presented Ex.P.1 report. Thus, the prosecution mainly relied on last seen theory. 8. In order to prove the case of the prosecution, P.W.8 was examined. In her deposition, she stated before the Court that the deceased joined in her brothel house one year back for the purpose of prostitution. One day prior to taking the deceased from her house, accused came to her house and saw the deceased in her house and had intercourse with the deceased on that day and he left her house in the evening. Again the accused came to her house in the evening on the next day and told her that he was having a room near Vijayawada bridge and he wanted to take the deceased to his room. He paid Rs.600 to her and took the deceased on his motorcycle. On the next day, police asked her to identify the dead body and she followed the police to the scene of offence and identified the dead body of the deceased. In the cross-examination, she admitted that she verifies the identity of the person who comes to her house and then only she entrusts the call girl to the customers. She did not ascertain the father’s name of the accused. Whereas P.W.9, daughter of P.W.8 deposed that the accused came to their house one day prior to 9.4.2005 and had a talk with P.W.8 and went away. On 9.4.2005 again the accused came to heir house and when P.W.8 showed the deceased, he paid Rs.600/- to P.W.8 and took the deceased with him on motorcycle TVS Victor bearing No.AP 27J 1121. She noted the vehicle number on a notebook maintained by her. She also noted the name of the accused as RMP doctor in the notebook. The deceased did not return to the house on the next day morning. Police asked them to identify the dead body at the scene of offence near Happy resorts on the by-pass road. P.W.8 identified the dead body of the deceased and she also identified the dead body of the deceased at Government Hospital, Mangalagiri. In the cross-examination, she admitted that the accused came twice to their house i.e. on the day on which he had taken the deceased at one time and one day earlier to that. Whereas, P.W.10, mother of P.W.8 also stated that one year back from the date of her deposition, accused took the deceased with him from the house of P.W.8 on a motorcycle. P.W.11, who is running the brothel house adjacent to the house of P.Ws.8 and 9, stated that she had seen the accused while taking the deceased on his motorcycle and she came to know the death of the deceased through P.Ws.8 and 9. 9. P.W.12, owner of the motorcycle-M.O.1 deposed that the accused asked him to give his TVS Victor bearing No.AP 27J 1121 as it is required by Dr.Vijayasaradhi. On that he had handed over the vehicle to the accused. Later he came to know that the accused mortgaged the vehicle with one Ankammarao, Advocate, Guntur. P.W.13 deposed that he secured the house of one Nagamma for rent to the accused for doing medical practice. One Peeru Saheb used to go to the accused for treatment and that the accused took two gold rings from the said person on the pretext that he is going for marriage alliance. P.W.14 speaks about his giving two gold rings to the accused. P.W.15 is the panch witness to the seizure of material objects-M.Os.2 to 11 and he signed on Ex.P.2-mediatornama. The doctor who conducted autopsy over the dead body of the deceased was examined as P.W.17 and she gave Ex.P.6-post-mortem certificate stating that the cause of death of the deceased was due to asphyxia due to smothering. P.W.16 is a panch witness to the mediators’ report for seizure of M.O.1- motorcycle, seizure of belt-M.O.2 and arrest of the accused. The Magistrate who conducted the test identification parade was examined as P.W.18 and according to his evidence, P.Ws.8 to 10 identified the accused and he deposed about the procedure of identification parade recorded under Ex.P.7. P.W.19 is the investigating officer, who initially registered the crime and investigated into the same. In the cross-examination, he admitted that he has not sent Nirodhs seized at the scene of offence to F.S.L. nor collected the pubic heir of the deceased for forwarding the same to F.S.L. He admitted that P.W.8 did not state about the vehicle number, but she stated that her daughter (P.W.9) witnessed the accused taking the deceased on motorcycle. P.W.20 is another investigating officer, who took up further investigation from P.W.19. He stated that the accused led the team to the place of recovery which is situated opposite to Happy Resorts on the other side of the road and led the team to the thorny bushes and picked up a leather belt-M.O.2, which is in black colour and having letters CK on the buckle. Whereas P.W.15 stated that M.O.2 is the black colour rubber belt having CALVIN KLEIN letters. P.W.20 further stated in the cross-examination that he did not collect pubic hair from the deceased for sending the same to RFSL and that he did not collect the sperm from the accused. P.W.8 did not state before him about the vehicle number and the name of the accused, but stated as the boy with TVS Victor. 10. From the above evidence, it is clear that P.W.8, who is the prime witness in her earliest version before the police stated that a boy with TVS Victor took the deceased. Whereas in her evidence before the Court she improved her version stating that the accused came to her house on the previous date and had intercourse with the deceased and on the next day he again visited her house and took the deceased on his motorcycle by paying Rs.600/- to her. She knew the name of the accused, but she has not ascertained his father’s name and that the accused is an R.M.P. doctor having a room near the bridge. Whereas P.W.9 did not state before the police that one day prior to 9.4.2005 the accused came to her house and had a talk with her mother-P.W.8 and went away and again on 9.4.2005 accused came to her house and on P.W.8 showing the deceased, he paid Rs.600/- to P.W.8 and took the deceased with him on his motorcycle. She also admitted that the accused came twice to her house i.e. on the day on which he had taken the deceased at one time and one day earlier to that. Further as per the evidence of P.W.8 the deceased was taken by the accused on the evening of 9.4.2005, but the dead body of the deceased was found on the next day at 10.00 or 10.30 a.m. i.e. there is a time gap of 15 hours. It is well settled that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible, which is a link to connect the accused with the commission of the offence provided the prosecution establishes the other links in connecting the accused with the commission of offence. To connect the accused with the commission of offence, the prosecution ought to have sent the Nirodhs found at the place of occurrence for RFSL report. Further it is on record that the swabs taken from the vagina of the deceased were sent for semen analysis to RFSL, but the prosecution has not taken any steps to file the report in that regard. Whereas P.W.19 has stated that he has not sent the Nirodhs to FSL. No report as such is filed to establish that the accused had intercourse with the deceased just before the commission of offence. In view of the mitigating circumstances, it is not safe to convict the accused basing on the inconsistent evidence of P.Ws.8 and 9 with regard to accompanying the deceased with the accused. Therefore, the accused is entitled for acquittal. 11. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant-sole accused for the offence under Section 302 I.P.C. by II Additional Sessions Judge, Guntur in S.C.No.644 of 2005 are hereby set aside. The appellant is found not guilty of the said charge and he is acquitted of the same. 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. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 26, 2011 Tsr.