THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.301 of 2007 Date of Judgment: 07-07-2010 Between Tadisetty Yohan ..Appellant and The State of A.P. rep. Public Prosecutor. .Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.301 of 2007 Oral Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The appellant (A1) along with A2 was put on trial for the offence punishable under Section 302 r/w 34 IPC in S.C.No.401 of 2005 by the IX Additional Sessions Judge, Guntur for allegedly committing the murder of Tadisetty Sambaiah, father of A1 by throttling. After trial, A2 was acquitted and the appellant—A1 was convicted for the offence punishable under Section 302 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/-, in default to suffer simple imprisonment for seven days. 2. The case of the prosecution in brief is as follows: Tadisetty Sambaiah (hereinafter referred to as “the deceased:”) was the resident of Konda Venkatappaiah Colony in Guntur. He was living along with his family members in a rented house. He was addicted to drinking and used to sleep in Mirchi yard. There was land dispute between the deceased and P.W.1 & A1. On 27-04-2005, there was ladies function in the house of the deceased. After the function, the deceased slept on a cot in front of the house; while his wife, son (A1) and his wife and children were slept in side the house. While so, in the midnight, the deceased raised cries and the neighbours rushed to the house and found A1 sitting on the chest and throttling the deceased while A2 was holding his hands. P.Ws.1 and 2 also came out of the house and found the accused running away. Immediately, P.W.1 took the deceased to the Government Hospital, Guntur where the casualty Medical Officer declared him as dead, due to cardio respiratory arrest. Subsequently, P.W.1 went to the police station and gave a report—Ex.P1 to the Sub-Inspector of Police— P.W.11, who in turn registered a case in Cr.No.78 of 2005 under Section 174 Cr.P.C. and issued FIR—Ex.P11; after receiving the post mortem certificate, he altered the section of law from Section 174 Cr.P.C. to Section 302 r/w 34 IPC and issued altered FIR—Ex.P12. The Inspector of Police—P.W.13 took up further investigation in the matter. He visited the scene of offence, observed the scene in the presence of P.Ws.5 to 8; prepared a observation report—Ex.P5; he also prepared a rough sketch—Ex.P14; thereafter, he went to the Hospital; held inquest over the dead body of the deceased covered by Ex.P6; examined P.Ws.1 to 3; sent the dead body of the deceased for post-mortem examination. P.W.6—Professor in Forensic Medicine conducted autopsy over the dead body of the deceased and noticed multiple small abrasions on the right and left sides of the neck and opined that the deceased was dead due to asphyxia as a result of strangulation. P.W.13 arrested the accused on 02-05-2005 in the presence of P.W.4 and another and after completion of investigation and after receipt of necessary reports he laid the charge sheet. 3. In support of its case, the prosecution has examined P.Ws.1 to 3 and marked Ex.P1 to P16. On behalf of defense, portion of 161 Cr.P.C. statement of P.W.3 was marked, but no oral evidence was adduced. 4. The learned Sessions Judge solely relying upon the testimony of P.W.3 convicted the appellant—A1 as aforesaid while acquitting A2. 5. Sri T.Bali Reddy, learned senior counsel appearing for the appellant—A1 contends that convicting A1 on the solitary evidence of P.W.3 in the absence of any corroborative evidence is improper. P.W.3 in the cross-examination resiled from his version in the chief examination with regard to his witnessing the incident of throttling the deceased by A1. Therefore, it is unsafe to base the conviction solely basing upon his evidence. 6. On the other hand, learned counsel representing the Public Prosecutor contends that P.W.3 was examined on 18-04-2006 and cross-examined on 05-09-2006. Therefore, there is every possibility of won over hence, variation in his evidence. His testimony to the extent found reliable can be acted upon, as the medical evidence supports his evidence. Therefore, conviction and sentence recorded against the appellant—A1 needs no interference. 7. P.Ws.1 and 2 wife and daughter of the deceased and mother and sister of the accused not supported the case of the prosecution and turned hostile. 8. P.W.1, who lodged the report—Ex.P1, stated that the deceased used to quarrel with her with regard to her son–Yohan (A1) and daughter—P.W.2, and abusing her in filthy language. On 27-04- 2005, the deceased came to the house in connection with function of her grand daughter and soon after he came to the house he quarreled with A1, and they pacified their son. After supper, the deceased slept on a cot in front of the house; A1 and his friend—Sreenu (A2) stand outside. She along with her daughter—P.W.2 slept inside the house. In the mid night on hearing cries, herself and P.W.2 came out and found the deceased in painful noise, and A1 and A2 are not found. On her cries neighbours came there; she found injuries on the neck of the deceased. Immediately they shifted the deceased to the Government Hospital, Guntur where the doctors declared him as dead. She suspects that A1 and A2 are responsible for the death of the deceased. 9. P.W.3, who is the solitary eyewitnesses to the incident and who is working as process server in the District Court, Guntur and whose house is adjacent to the house of the deceased, stated that there were disputes between the deceased and A1, P.Ws.1 and 2 with regard to their properties and in that connection they used to quarrel with each other. On the date of incident, A1, P.Ws1 and 2 quarrelled with the deceased who was regular habituent of intoxication. On the date of incident, himself and his wife—Mota Ramana (L.W.3) (not examined) slept in the house. On hearing the cries, immediately himself and his wife went to the house of the deceased, who was on the cot in front of the house and found A1 sat on the chest of the deceased and throttling the throat and A2 caught hold the hands of the deceased. After seeing them, A1 and A2 ran way from the scene of offence. In the cross-examination he stated that the police examined him on the road situated in front of his house and he came to know about the death of the deceased through police. On the next day morning early hours he came to know the incident while P.W.2 informing the same to the persons who gathered there. He did not know where the family members of A1 were slept by the time of occurrence. He does not know by what time the police came to the scene of offence after occurrence. He also stated that P.W.12 is their tenant; himself, his wife, and P.W.12 by raising cries came to the road; on hearing the cries neighbours also came there. He does not remember in what matter they raised cries. He did not state to the police as stated in 161 Cr.P.C. statement. 10. P.W.12 also declared hostile. He stated that he do not know what happened to the deceased and anything about the case. 11. P.W.6, who conducted postmortem examination and issued postmortem certificate—Ex.P7, opined that the deceased died 6 to 12 hours prior to postmortem examination. The cause of death is due to asphyxia as a result of strangulation. He has not find any food or liquor in the abdomen part and nail injuries over the body of the deceased. 12. The learned Sessions Judge by relying upon the judgment of the Supreme Court in KHUJJI v. STATE OF M.P.[1] came to the conclusion that testimony of P.W.3 to the extent found reliable can be acted upon, as his evidence is corroborated with the medical evidence —PW.6, and Ex.P7—post mortem report shows that the deceased died due to asphyxia as a result of strangulation. Therefore, the prosecution is able to bring home the guilt of the accused beyond reasonable doubt. 13. It is fairly well settled that conviction can be based on testimony of solitary eyewitness, if his evidence found to be reliable and trustworthy and when his evidence is not shaken. 14. The Supreme Court in BHAJAN SINGH v. STATE Of PUNJAB[2] held if the evidence is disbelieved with regard to participation of some of the accused, conviction of other accused solely on the said evidence, which does not inspire confidence, cannot be sustained and accordingly set aside the conviction. 15. In the case on hand, the learned Sessions Judge disbelieved the evidence of P.W.3 with regard to participation of A2 in the commission of offence and acquitted him of the charge. P.W.3 has stated that A1 sat on the chest of the deceased and throttled the throat and A2 caught hold the hands of the deceased. But in the cross- examination, P.W.3 has stated a different version that he did not state before the police as in Ex.D1; he did not remember at what time he heard the cries of the deceased; he did not remember to which side A1 and A2 ran away from the scene of offence; he do not remember in what matter he raised cries; he cannot say whether the deceased slept on the cot by the time of occurrence; he came to know the death of the deceased through his wife and police on the next day morning which clearly goes to show that he is not a reliable witness, his evidence is full of contradictions and he is not strict to the earlier statement made in the chief examination and resile from the earlier statement and gave different version. If his evidence is eschewed, there is no other evidence to connect the accused with the commission of offence. Further, when the learned Sessions Judge has disbelieved the evidence of P.W.3, as it is not corroborated with the medical evidence in respect of specific overt act of A2 on the deceased, the same benefit should also be extended to A1 also. 16. In view of the same, the conviction of the appellant/A1 for the offence under Section 302 IPC and sentence of imprisonment for life and to pay a fine of Rs.100/- made in S.C.No.401 of 2005 by the IX Additional Sessions Judge, Guntur are set aside and he shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. 17. The Criminal Appeal is accordingly allowed. _________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. 07-07-2010 Murthy [1] (1991) 3 SCC 627 [2] AIR 1977 SC 674