HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.590 OF 2007 Dated:20-10-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Pillala Mahalaxmi @ Malatchi …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.590 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State, represented by Public Prosecutor, preferred this appeal questioning the acquittal order, dated 26.07.2005 passed in S.C.No.95 of 2002 on the file of II Additional District & Sessions Judge (Fast Track Court), Srikakulam acquitting the respondent-sole accused of the charge punishable under Section 302 I.P.C. 2. The story of the prosecution as narrated during the course of trial is as under: P.Ws.1 to 4 and Pillala Appanna (hereinafter referred to as ‘deceased’) belong to Telugu Desam Party and the accused belongs to Congress Party and there is rivalry between the two groups. About four years prior to the date of incident, the accused is said to have purchased the lands of people of Gangannodarapalem and about one month prior to the incident, the accused closed the way by putting fencing and the same was disputed and the matter was placed before the elders-P.W.8 and others, but the accused did not hear the words of the elders and since then, the accused bore grudge against the deceased. The deceased used to go to the tank near ‘Neelagiri tope’, owned by the accused for attending the calls of nature. On 23.10.2001 at about 10.00 a.m., the deceased went to attend the calls of nature and the accused was present in his lands called as ‘Neelagiri tope’ and on seeing the deceased, the accused called him and the deceased went to him. Then the accused picked an aluminum bottle from his waist and asked the deceased to consume the poison for which the deceased refused to. Then the accused with an intention to kill the deceased, caught hold of the deceased by his shoulder placed his legs between the legs of the deceased and forcibly administered Monochrotophos which is an insecticide poison and went away. On account of drinking the pesticide, the deceased started vomiting which was witnessed by P.W.4, who took the deceased to his house. On being questioned by the parents and L.W.3, the deceased stated that the accused administered poison. Then they took the deceased to the Government Hospital, Rajam for treatment. On receipt of hospital intimation, the Sub-Inspector of Police, G.Sigadam Police Station, rushed to the hospital and recorded the statement of the deceased and basing on the said statement, he registered a case in Crime No.58 of 2001 for the offence under Section 307 IPC. Then on receipt of intimation from the doctor, the Magistrate of Rajam rushed to the hospital and recorded the dying declaration of the deceased. On the same day, at about 7.45 p.m., the deceased died in the hospital. On receipt of death intimation, section of law was altered to Section 302 IPC. P.W.16-Inspector of Police took up investigation, rushed to the hospital, conducted inquest over the dead body of the deceased and recorded the statements of witnesses. At 12.15 p.m., he reached Penasam village, visited the scene of offence, prepared observation report-Ex.P.5 and rough sketch-Ex.P.25. Then he inspected the house of the deceased, seized the vomited material as well as control earth in the presence of mediators under Ex.P.7 and examined and recorded the statements of P.Ws.5,6,8 and 10. P.W.13 is the doctor who conducted post-mortem examination over the dead body of the deceased on 24.10.2001 and he opined that the cause of death is monocrotophos which is a poisonous substance. Ex.P.17 is the post- mortem report. P.W.16 arrested the accused on 29.10.2001 at Nadivivalasa Bus stand. After completion of investigation, he laid the charge sheet against the accused. 3. To substantiate the case of the prosecution, P.Ws.1 to 16 were examined and Exs.P.1 to P.25 were marked besides material objects 1 to 5. On behalf of defence, no evidence was adduced. 4. The learned Sessions Judge after appreciation of oral and documentary evidence was of the opinion that the prosecution miserably failed to prove the guilt of the accused for the offence under Section 302 IPC beyond all reasonable doubt, and accordingly, acquitted him of the charge. 5. We have heard the learned Public Prosecutor who has taken us through the entire evidence on record and also the findings recorded by the lower Court. 6. The Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further in dealing with the appeal against the order of acquittal, it must be shown by the prosecution that there are compelling and substantial reasons to interfere with the same. Therefore, now it is to be seen whether there are any compelling and substantial reasons to interfere with the acquittal order passed by the lower Court. 7. P.Ws.1 and 2 are father and mother of the deceased; P.W.3 is the brother of P.W.4; and P.Ws.5 and 6 are the villagers, before whom the deceased made a declaration that the accused poured poison into his mouth. According to P.W.4, while he was proceeding towards the school, P.W.6 came and informed him that the deceased was vomiting and asked to look into the matter. Then he heard the cries of the deceased for help. When he went and asked the deceased, he requested to carry him to his house. Accordingly, he carried the deceased to his house and there, when P.Ws.1 and 2 questioned, the deceased stated that the accused administered pesticide to him near Neelagiri Thota. On admission of the deceased into the hospital, P.W.12-Judicial First Class Magistrate, Rajam recorded the dying declaration of the deceased under Ex.P.16. In the said statement, the deceased stated that at about 9.00 a.m. he went into the tope of accused for attending the calls of nature. There, the accused gave one bottle with poison (medicine) for his drink. He drank that poison and that he does not know the reason for offering the said poison. The evidence of P.W.12 also shows that when he questioned the deceased, he stated that there are no disputes between himself and the accused. According to P.W.1, the accused was taken into custody by the police on the same night i.e. on 23.10.2001, but the evidence of the investigating officer-P.W.16 shows that the accused was not available in the village and that he was arrested only on 29.10.2001. Therefore, the recovery of M.O.5-pesticide bottle at the instance of the accused is doubtful. Further it is seen that the deceased is the resident of Pensam village within the jurisdiction of G.Sigadam Police Station limits. Therefore, immediately the deceased should have been taken to the hospital at G.Sigadam, instead he was taken to G.Sigadam Police Station and during the time gap, the deceased might have been tutored by P.Ws.1,2 and 9, who are the supporters of Telugu Desam Party, and whereas, the accused belongs to Congress Party. P.W.9 also admitted the said fact. Further no motive has been established by the prosecution for the accused to kill the deceased. In the cross-examination, P.W.1 admitted that they fixed an alliance to the deceased with the daughter of one Ippili Boosayya of Chettupodilam village and that the girl was having disfigure to the face on account of lips being cut and she has defect in speech as well as not worldly- wise. Therefore, the deceased might have consumed the poison with a view to commit suicide and taking advantage of the same, P.Ws.1,2 and 9 being the supports of Telugu Desam Party might have tutored the deceased to give evidence against the accused which is also evident from the evidence of P.W.12-Magistrate, who stated that when he visited the hospital, P.Ws.1,2, 9 and others were present by the side of the deceased and were conversing with him. It is now fairly well settled that on the evidence adduced by the prosecution, if two views are possible, the view which benefits the accused should be preferred to the rest. Considering all the above circumstances and on appreciation of the oral and documentary evidence, the learned Sessions Judge rightly acquitted the accused of the charge. We do not see any compelling and substantial reasons to interfere with the acquittal order passed by the learned Sessions Judge. 9. In the result, the appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 06, 2010 Tsr.