THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1714 of 2005 & Crl.A.No.610 of 2007 COMMON JUDGMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1. This appeal is directed against the judgment delivered in Sessions Case No.317 of 2002 dated 21.10.2005 on the file of the V Additional Sessions Judge, West Godavari, Eluru convicting and sentencing the appellant/accused (for short ‘the accused’) to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment of the fine amount, to suffer simple imprisonment for a period of two months for offence punishable under Section 411 IPC. 2. The accused was charged with offence punishable under Section 302 read with Section 379 IPC and Section 411 IPC. Before going into the merits of the case, it is necessary to note briefly the prosecution case. 3. The accused is the resident of Seethappagudem of Koyalagudem mandal, West Godavari district. He was a regular visitor of Manthripragada Bhujangarao Social Club (for short ‘the club’) at Jangareddygudem and there he used to play cards The accused was addicted to vices like drinking alcohol, playing cards etc. He used to assist late Kambala Subba Rao (for short ‘the deceased’) who was the clerk of the said Club. The accused also used to borrow amounts from him to meet his vices. On 27.11.2000 the accused had taken away Luna Moped belonging to his father and pledged it with P.W.4 for Rs.1200/- and spent the said amount for his vices. On 1.12.2000 the accused came to know that his father returned home and thereby the accused apprehended that his father would admonish him on the ground that he had taken away and pledged the Luna with P.W.4. Therefore he went to the Club and requested the deceased to give an amount of Rs.1200/- to clear the loan and bring back the Luna, but the deceased refused to do so. Thereafter, again on 2.12.2000 at about 9 a.m. the accused again requested the deceased to give the said amount, but the deceased again refused to do so. Further, on the same day at about 11.00 a.m., the wife of the accused went to the Club and requested the accused to come back home, following which the deceased and members of the Club chastised the accused for making his wife to visit the Club, following which an altercation took place between the accused and the deceased and the accused got hurt. Further at about 5.00 p.m. on the same day the accused once again requested the deceased to give the amount, but there was no response from the deceased. Further, on that day, the accused sat in the club upto 10.30 p.m. at which time the Club was closed. Then the deceased sent the Watchman of the Club to bring some alcohol for him, and taking advantage of the lonely presence of the deceased, the accused attacked the deceased with knife and stabbed indiscriminately all over the body of the deceased and also caused injury by stone on the head of the deceased and caused instantaneous death of the deceased. Further the accused robbed an amount of Rs.7,900/- from the pocket of the deceased and threw the knife into the vacant site there and left the premises. Further, thereafter the accused visited the house of P.W.4 and requested him to return his Luna Moped offering to pay Rs.1200/-, for which amount the Luna was pledged earlier, but P.W.4 asked him to come on the next day morning, but the accused did not get back. Further, the watchman of the club after returning from alcohol shop, noticed that the deceased was not seen and then he went to the house of the deceased and called his son P.W.1 to the club and later both of them noticed the dead body of the deceased in a pool of blood in the club premises. Consequently, P.W1 went to the Police Station at Jangareddygudem and gave report on the basis of which, the case was registered in Cr.No.145 of 2000 under Section 302 IPC of Jangareddigudem P.S. Further, the police took up and conducted the investigation of the case and ultimately filed charge sheet. 4. After observing necessary formalities, to establish the prosecution case, P.Ws.1 to 10 were examined and Exs.P1 to P21 and M.Os.1 to 14 were marked. The claim of the accused is of total denial of the charges levelled against him and also incriminating material adduced against him. 5. It is the claim of the prosecution that even though there is sufficient evidence to establish the charge under Section 320 IPC, the trial Court failed to consider the evidence properly and hence the acquittal recorded against the accused for that charge is to be set aside and accordingly he is to be convicted and sentenced. On the other hand, it is the claim of the defence that there is no acceptable evidence about the charge under Section 411 IPC and the conviction and sentence imposed thereunder are not tenable. 6. Both the appeals can be disposed of because, they have been arisen from the judgment rendered in the Sessions Case. 7. In order to dispose of the appeals, the following points are to be considered and examined. 1. Whether the prosecution placed good evidence in order to establish the charges under Section 302 and 411 IPC. 2. Whether motive to kill the deceased on the part of the accused is established. 3. Whether the conviction for the offence punishable under Section 411 IPC and acquittal recorded under Section 302 IPC are sustainable or not. POINT Nos.1 to 3 – All these points can be decided together. 8. In this case, there is no direct witness to speak about the incident of murder and stealing the amount of Rs.7,900/- from the deceased. Therefore, only basing on circumstantial evidence, it has to be decided as to whether there is sufficient material to bring home the guilt to the accused in respect of both the offences in question. 9. It is the evidence of P.W.1 the son of the deceased is that on the relevant date, the watchman of the club met him and informed him that his father was not seen and therefore he went to the club along with the watchman and there found the dead body of the deceased. Further, he identified the battery light and chappals of the deceased marked as M.Os.1 and 2. 10. P.W.2 who was working as boy in the club deposed that himself another boy Valli, watchman of the club Gangaraju and the deceased were at the club till 10.30 p.m. and on closing the club they went to the front side of it to lock it and in the T.V. room of the club the accused was witnessing a T.V. programme and then the deceased Subba Rao asked the accused to leave the room as it was to be locked, on which the accused went away and then himself and Valli locked the rooms and handed over the keys of the club to the deceased Subba Rao and then they went away to their house. He also deposed that the accused used to borrow amounts from the deceased and repay the amounts and the accused also used to request the deceased to lend amount for releasing his moped, for which the deceased used to reply that he was not having any amount to do so. He also deposed that he noticed the accused at the club on the morning of 2nd December when he went to the club and at about 10.30 a.m. on that day, the wife of the accused came to the club and after talking to his wife, the accused sent her away following which, the deceased and others chastised the accused for making his wife to attend the club, following which there was a quarrel between the accused and the deceased. He also deposed that around 9.30 or 10.00 p.m. on that day also the accused asked the deceased to give amount. 11. It is the evidence of P.W.3 a member of the club that on the relevant date at about 9 p.m., he gave Rs.9,000/- to the deceased and apart from that the deceased was in the possession of Rs.3,000/- and on the next day at about 5 a.m. the watchman of the club informed him about the murder of the deceased. 12. P.W.4 deposed to the effect that about one week prior to the incident in question, one Gedela Raju who happened to be his friend, introduced the accused stating that the accused was having landed property and the accused met him at Jangareddygudem and stating that he wanted some amount urgently requested to lend a sum of Rs.1200/- and accordingly he gave Rs.1200/- to the accused keeping his (the accused) Luna Moped as security. P.W.7 corroborated the evidence of P.W.4. It is further the evidence of P.W.4 that on 2.12.2000 at about 11.30 p.m. the accused came to his house and agreed to pay the amount of Rs.1200/- for the return of the Luna and on that he asked the accused to come on the next day morning, which the accused agreed, but in fact later the accused did not get back. It is also his evidence that he handed over the Luna Moped to the police subsequently. 13. P.W.5 Medical Officer deposed about conducting post-mortem examination over the dead body. 14. P.W.8 deposed about inquest over the dead body, scene of offence observation panchanama and P.Ws.9 and 10 deposed about the investigation of the case. 15. About establishing the charge under Section 302 IPC, the evidence of P.W.2 is to be mainly considered. Really his evidence speaks about the presence of the accused at the club till 10.30 p.m. on the relevant date and it also speaks about the prior relationship between the accused and the deceased and the accused asking the deceased to pay amount for the release of the Luna and further about the quarrel between the accused and the deceased on the ground that the deceased chastised the accused on the ground of making the wife of the accused to attend the club on that day. However, it is important that P.W.2 deposed that the accused left the club at about 10.30 p.m. during the relevant night. There is absolutely no basis to conclude that the accused returned to the club and he was present at the club when the deceased was done to death keeping apart the fact that there is no direct evidence about the murder of the deceased. 16. The evidence of P.W.4 about the pledge and taking the loan of Rs.1200/- from him by the accused and approaching him by the accused later is quite acceptable being trustworthy. 17. Further, quite surprisingly even though it is according to P.W.4 that he returned back the Luna which was pledged with him by the accused no evidence was let in by the investigating agency as to what happened to the Luna. The seizure and production of Luna may be important in view of the fact that the accused is said to have pledged the Luna with P.W.4 and wanted to get back the Luna on the ground that his father might admonish him for doing so and asked the deceased to pay necessary amount which the deceased is said to have refused, whereas in any way, I do not find any reason to disbelieve the evidence of P.W.4 about the pledging of the Luna and taking loan from him by the accused. However, unless other connecting links are there, it is not sufficient to establish the charge under Section 302 IPC. 18. When there is no basis to say that the accused was at the club when the deceased was done to death and there is also no other incriminating material against the accused, it cannot be said that all the chain of circumstances which are sufficient to convict the accused for the charge are established. 19. When it appears that the police failed to produce the Luna though it is a very material object, it clearly infers that the investigation of the case was very badly done. 20. With regards to the question of establishing the charge under Section 411 IPC, it is to be ascertained that the deceased lost his money and the accused came into possession of the amount and further the accused was in the possession of the amount having knowledge that it was a stolen property. When there is no direct evidence, the question of establishing the charge under Section 379 IPC does not arise at all. Significantly according to the investigating officer, he seized the money stained with blood from the possession of the accused at the time of arrest on 4.12.2000 near Indira Gandhi Statute, Koyyalagudem Centre in the presence of mediators including P.W.8. P.W.8 also deposed accordingly. 21. According to the defence, when the so called stolen property happened to be only money, which is circulated throughout the country widely, it cannot be said that it was belonging to the deceased person. 22. In fact, the currency is widely circulated throughout the country and unless there is evidence of noting the corresponding numbers or there is other evidence which is sufficient to establish that the deceased was the owner of the stolen property, it is difficult to link the accused with the charge punishable under Section 411 IPC. Further, when it is the prosecution version that the money was stained with blood, the police should have taken necessary steps for the scientific examination of the blood stained on the currency and ascertain whether the same blood belonged to the deceased or not, but for the reasons best known to the police, such steps were not taken. Therefore ultimately it is to be held that the charge under Section 411 IPC is also not established. POINT No.4 23. The trial Court, by and large, considered the evidence adduced properly insofar as the charge under Section 302 IPC is concerned, but failed to appreciate the evidence adduced with reference to the charge under Section 411 IPC properly. 24. For the foregoing reasons and in the facts and circumstances of the case, Crl.A.No.1714 of 2005 filed by Appellant-Accused is allowed setting aside the conviction and sentence imposed in the Sessions Case No.317 of 2002 dated 21.10.2005 on the file of the V Additional Sessions Judge, West Godavari for the offence punishable under Section 411 IPC and accordingly Crl.A.No.610 of 2007 filed by the State is dismissed and consequently, the appellant- Accused Valluri Rama Krishna shall be set at liberty forthwith unless he is required in any other case. ______________ V.ESWARAIAH, J ________________________ G.KRISHNA MOHAN REDDY, J Date: 4.8.2011 DA THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.A.No.1714 of 2005 & Crl.A.No.610 of 2007 4.8.2011