HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.465 OF 2007 Dated:24-08-2010 BETWEEN: State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Kesanapalli Venkata Naidu & others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.465 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) State preferred this appeal challenging the acquittal of the accused 1 to 5 of the charges under Sections 147, 148, 302 r/w 149 and 201 I.P.C. recorded in the judgment, dated 17.3.2005 in S.C.No.771 of 2003 on the file of IV Additional Sessions Judge (Fast Track Court), Anantapur. 2. The brief facts that are necessary for disposal of the appeal may be stated as follows: A.1 to A.4 and one Murali Mohan Naidu (hereinafter referred to ‘deceased’) are the residents of Nadimpalli Village of Narpala Mandal and that A.5 is a washer man to both the families of the accused and the deceased and is a resident of Gugudu Village of Narpala Mandal. A.1 to A.3 are brothers, A.4 is the cousin of A.1 and A.5 is the follower of A.1 to A.4. P.W.1 is the father and P.W.2 is the wife of the deceased. Prior to the date of report under Ex.P.1, P.W.1 came to know from P.W.2 that the deceased was missing from 15.8.2001 and he learnt that the deceased was taken to dinner on that night with the accused and deceased was last seen in the company of the accused. On 17.9.2001 at about 2.00 p.m., P.W.3 noticed the skeleton remains of the dead body in the midst of hillock rocks and informed the same to P.W.1 and others. Later they went to hillock and observed the skeleton and a shirt over the skeleton and confirmed the shirt as that of the deceased. As the deceased gave loans to accused, P.W.1 suspected that the accused might have murdered the deceased. On 17.9.2001 P.W.1 lodged a report before the Sub-Inspector of Police, Narpala and the same was registered as Cr.No.80 of 2001 and is marked as Ex.P.1. The investigation revealed that the deceased sold away land and gave loans to A.3 and others and that the deceased developed illegal contact with the wife of A.3, who is the younger sister of P.W.2, which was noticed by A.3 and warned the deceased, but he did not stop the intimacy, that the accused planned to do away with the life of the deceased. That on 15.8.2001, in furtherance of their plan, all the accused invited the deceased to their house for dinner and one Narayanappa noticed the same, and that at about 11.00 p.m., P.W.3 noticed the deceased going along with the accused to the fields of A.1 to repair motor, that subsequently, one unknown person claiming as Bhasker telephoned to P.W.2 stating that the deceased went to Coimbattore and some days later informed that the deceased was seen at Chilakaluripet. As deceased was not to be seen, P.W.1 lodged Ex.P.1 report. The deceased was identified basing on his shirt and P.W.4, the tailor also identified the shirt and confirmed as that of the deceased. Thus, A.1 to A.5 committed the murder of the deceased and concealed the dead body with a view to screen the offence. P.W.8-Circle Inspector of Police along with P.Ws.1,2,6 and others went to the hillock and noticed the remains of skeleton besides skull and bones and also a shirt and seized the same marked as M.Os.1 to 3 under the cover of Ex.P.8. On 7.10.2001 at 1.00 p.m., P.W.8 arrested A.1 to A.4 and also seized M.O.2 an axe from the garden of A.1 under the cover of Ex.P.6 and later all the incriminating materials were sent to RFSL and the bones were also sent to CDFD, Hyderabad for DNA Test. Exs.P.9 and P.10 are the reports. After completion of investigation, P.W.8 laid the charge sheet. 3. The charges levelled against the accused are as under: “Firstly: You A.1 to A.5 conspired and hatched to murder the deceased Murali Mohan Naidu and in furtherance of your common intention, you A.1 to A.5 served arrack to deceased on 15.8.2001 and when he became intoxicated, you A.1 to A.5 took the deceased to “Petu” hillock at 11.00 p.m. and there you A.3 hacked the deceased with an axe, with an intention to murder him and on account of the act of you A.3 hacking the deceased on his head, the deceased died. Therefore, you A.3 have committed an offence U/s.302 I.P.C. and within my cognizance. Secondly: On the same day, at the same time and at the same place, you A.1, A.2, A.4 and A.5 along with A.3 being co-conspirators are also liable for punishment for the offence of murder and you A.1, A.2, A.4 and A.5 have committed an offence punishable u/s.302 r/w 34 IPC and within my cognizance. Lastly: After murdering the deceased Murali Mohan Naidu, you A.1 to A.5 on 15.8.2001 were on the “petu” hillock, you A.3 telephoned to the house of deceased from the STD booth of one Arava Manjunath (LW.9) and falsely informed the family members of the deceased that the deceased went to Coimbattore and you again telephoned to them that the deceased was seen at Chilakaluripet. Thereby you A.1 to A.5 have tried to destroy the evidence in respect of the murder of the deceased. Therefore, you A.1 to A.5 are liable for punishment for the offence committed u/s.201 I.P.C. and within my cognizance.” 4. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 8 and got marked Exs.P.1 to P.10 besides case properties M.Os.1 to 3. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence, but got marked Exs.D.1 to D.6 on their behalf. 7. The Trial Court upon consideration of evidence on record, came to the conclusion that the circumstantial evidence adduced by the prosecution if taken as true and correct would not lead to an irresistible conclusion that it is the accused who alone committed the offence and accordingly acquitted them. Challenging the same, State preferred this appeal. 8. The point that arises for determination is whether the prosecution proved its case beyond all reasonable doubt for the offences with which the accused were charged? 9. The learned Public Prosecutor contended that the evidence of P.Ws.1 to 3 is very clear that the deceased was last seen alive in the company of the accused, that skeleton remains of the dead body of human being was noticed by P.W.3 at the hillock nearby the village, that the shirt found on the skeleton remains was identified by P.W.1 as that of the deceased and therefore, he prays to set aside the order of acquittal. 10. However, the learned counsel appearing for the respondents contended that there is absolutely no evidence to show that the accused are the assailants of the deceased and the homicidal nature of the death of the deceased is not established as the skeleton remains are not shown to be as that of the deceased and therefore, the trial Court after considering the evidence on record rightly acquitted the accused, and that there are no grounds to interfere with the same. 11. In dealing with the appeal against the order of acquittal, it must be shown by the prosecution that there are compelling or substantial reasons to interfere with the same. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. When the findings are not based upon any evidence or inadmissible evidence has been taken into consideration or perverse finding is given by the trial Court, then this Court can interfere with the same. A finding can be said to be perverse if it is not based upon proper appreciation of evidence on record. The dead body of the deceased has not been traced though it is the evidence of P.Ws.1 to 3 that the deceased left the house on 15.8.2001 at about 8.00 p.m. A.1 to A.5 came to the house of P.Ws.1 and 2 and took the deceased stating that they have arranged a dinner at the house of A.2. It is not in dispute that A.1 to A.3 are brothers, A.4 is the cousin of A.1 to A3 and P.W.2 and the wife of A.3 are own sisters. The deceased is the son of P.W.1 and husband of P.W.2. Though the deceased allegedly found missing from 15.8.2001 onwards, either P.W.1 or P.W.2 did not lodge any report till 17.9.2001. They kept quiet for more than one month. Though P.Ws.1 and 2 searched for the deceased in the village and enquired with the neighbouring houses of their relatives, but in vain. On 17.9.2001 at about 2.00 p.m. when P.W.3 went to the hillock in Petukonda for the purpose of collecting some type of wood named Billukatta, he noticed some foul smell emanating at that place. When he went near the place, he found a skull, a shirt and highly decomposed dead body. He went to the village and informed the same to P.Ws. 1 and 2. Then all of them went there and after identifying the shirt on the skeleton remains, they identified the skeleton remains as that of the deceased. Then P.W.1 lodged a report with the police. The police registered a case and observed the scene of occurrence as in Ex.P.4. The shirt, drawer and banian were seized. The shirt and the skeleton remains of the bones have been sent to F.S.L. and the Centre for DNA Fingerprinting and Diagnostics. The blood sample of P.W.1 and his wife were taken and the long bone which was seized at the hillock by the Inspector was compared with the blood samples. The long bone which was sent by the police was impure and not amenable for analysis. Several methods were used by the expert to purify the D.N.A. but were not successful. Since the D.N.A. from the source of the long bone is essential, the Centre for DNA Fingerprinting and Diagnostics expert did not furnish any opinion. Therefore, the identity of that skeleton remains with that of the deceased is not established. 12. The only evidence available on record is the identity of shirt by P.W.1. Admittedly, P.W.1 was not residing in the house of the deceased. P.W.2 is the wife of the deceased and she is the best person to speak about the shirt wore by the deceased at the time when he left along with the accused. She did not identify the M.O.1 as belonging to the deceased. As seen from the prosecution, the evidence of P.Ws.1 and 2 alone is relevant to speak about the accused taking the deceased during night time for taking dinner at the house of A.2. Thereafter, the deceased was found missing. On two or three occasions P.W.2 received a phone call purportedly from one Bhasker informing P.W.2 that the deceased went to Coimbattore for the purpose of purchasing pump sets. Similarly, on one occasion P.W.2 received another call from Bhasker about his seeing the deceased at Chilukaluripeta. Therefore, from the evidence, it is not clear whether the husband of P.W.2 really died or not. The homicidal nature of death of the deceased is not established though P.W.8 stated that he found a depression on the left side of the skull and that there was heavy crack on the skull in the middle. But those bones have not been sent to the expert to show whether any force was used or that they could be possible by beating with a hard object. Since the investigating officer is not an expert to speak about the depression or about fracture of the skull, we are unable to place any reliance on his evidence. No-doubt, in the absence of corpus delecti, if the evidence of eyewitnesses or when the case is rests upon the circumstantial evidence and if the evidence is found to be true and trustworthy and unimpeachable, a conviction can be maintained. But at the same time, the evidence of such witnesses must be clear and cogent. There is no direct evidence to show that the accused are the assailants of the deceased. The only evidence remains on record is the evidence of P.Ws.1 and 2. They simply stated that all the accused took the deceased to their house. There is nothing unusual for the accused to take the deceased to their house for dinner in view of the fact that the wife of the deceased is no other than the sister of A.3. Therefore, if the evidence of P.Ws.1 and 2 is to be accepted as true and correct, it would be a neutral circumstance and cannot be shown to be an incriminating circumstance against the accused. 13. The other evidence remains on record is the evidence of P.W.3 who is the cousin brother of the deceased. His evidence is that he went to the fields to guard the crop from wild boars. At about 11.00 p.m., he saw the deceased in the company of A.1 to A.5 and they were proceeding towards the fields of A.1. When he enquired, the deceased told him that there was a trouble in the starter of motor in the bore-well of A.1 and the water was not coming from the pipeline and therefore, A.1 and A.2 were taking him to attend to the repair work of starter. It is not in dispute that A.1 was having 13 acres of land and there is a well and a motor is attached to it. On the next day morning, he informed the same to P.Ws.1 and 2. Even assuming for a movement that the evidence of P.W.3 is true and acceptable, that evidence also cannot be an incriminating circumstance because there is nothing unusual for A.1 to A.5 to take the deceased to their bore-well for the purpose of repairing the starter of the motor in view of the fact that the deceased was a mechanic in repairing the motors. Therefore, even from this circumstance alone, it cannot be concluded that it is the accused, who committed the murder of the deceased. It is not in evidence that the last seen theory was so proximate to the time of death so as to infer that the crime must have been committed by the accused. Though the body of a person highly decomposed was noticed by P.W.3, there is no evidence to show that the skeleton remains of the body is none other than the skeleton of the deceased. The prosecution failed to establish the proximate time of death of the deceased. Therefore, the trial Court upon consideration of the evidence on record rightly found that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt. P.W.4 was examined to speak about stitching of M.O.1-shirt, but he did not support the case of the prosecution. Similarly, P.W.5 was examined to speak about A.3 making a telephonic call to P.W.2. He also did not support the case of the prosecution. Even after declaring them hostile, the prosecution did not elicit any other evidence, which will incriminate against the accused. P.W.6 is one of the mediator for observing the scene of occurrence and arrest of the accused. His evidence is only formal in nature, which does not incriminate anything against the accused. In the absence of any substantial or compelling reasons pointed out by the learned Public Prosecutor, we cannot take a different view than the one taken by the Court below. 14. In the result, the appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J AUGUST 24, 2010 Tsr.