IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1729 OF 2006 DATE:24.02.2010 Between: Neelagiri Venkata Rao …… Appellant/Accused No.2 And: State of A.P., rep. by Public Prosecutor, High Court of AP …..Respondent. HON’BLE SRI JUSTICE V.V.S. RAO AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1729 OF 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S. Rao) One Moothi Laxmaiah and the appellant who is A-2 were tried by the court of III Additional Sessions Judge (Fast Track Court), Khammam in S.C.No.190 of 2006 for the charges punishable under Sections 302 and 201 IPC. Moothi Laxmaiah (A-1) died and the case abetted against him. The trial was conducted against the appellant and the impugned Judgment dated 26.09.2006 was passed by the III Additional Sessions Judge (FTC), Khammam convicting and sentencing him to undergo life imprisonment and to pay a fine of Rs.500/- in default to undergo simple imprisonment for two months for the charge under Section 302 IPC and further sentencing to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.200/- for the offence punishable under Section 201 IPC. Aggrieved by the conviction and sentence, A-2 filed the present appeal. The case of the prosecution in nutshell is as follows:- The deceased Made Swamy arranged 50 kgs., of rice for the use of accused No.1 from the shop of P.W.4. When the amount was not paid by the accused No.1, there was a quarrel between them. On 22.04.2005, the elder brother of Made Swamy (P.W.1) gave Ex.P-1 report to Yellandu police stating that on 20.04.2005 at about 9.00 a.m, A-1 and A-2 along with Made Swamy went to Dharmapuram village to consume toddy, that A-1 and A-2 only returned home in the evening, that when he enquired them about his brother Swamy, they have stated that they do not know about him, that they came to know about the presence of the dead body of his brother in a stream between Dharmapuram and Puballi villages. It is alleged in the complaint that after consuming toddy, A-1 and A-2 beat his brother Swamy and as a result he died. Basing on the complaint, a case in Crime No.57 of 2005 under Sections 302, 201 read with Section 34 IPC was registered and P.W-14 took up the investigation of the case. During the course of investigation, he (P.W-14) conducted inquest and prepared inquest panchanama (Ex.P-5). The dead body was sent to P.W.12 the Civil Assistant Surgeon, Government Hospital, Yellandu for post-mortem. After conducting autopsy, Ex.P-16 post-mortem report was furnished opining that the death of the deceased was due to head injury on the left side frontal area. After completing investigation, P.W-14 filed charge sheet before the Judicial Magistrate of the First Class, Yellandu. The learned Magistrate conducted enquiry in P.R.C.No.1 of 2006 and took cognizance of the offences and committed the same to the Court of Sessions, Khammam for trial. In support of its case, the prosecution examined P.Ws.1 to P.W.14 and got marked Exs.P-1 to P-20 & M.O.1, the stick which was found by the side of the dead body. After appreciating the evidence brought on record, the learned Sessions Judge held that the prosecution could be able to establish the guilt of the accused No.2 for the charges framed against him, by circumstantial evidence, and accordingly sentenced and convicted him as stated above. The learned counsel for the appellant submits that the prosecution failed to establish the motive and that the circumstantial evidence let in by the prosecution is weak to prove the guilt of the appellant. On the other hand, the learned Public Prosecutor submitted that the learned Sessions Judge properly appreciated the evidence on record and properly convicted and sentenced the appellant and the judgment under appeal may not be interfered with. Heard both sides. The point that arises for consideration is whether the impugned judgment can be sustained. The alleged purchase of rice by the deceased Meda Swamy for the use of A-1 and non payment of the money by latter, which lead to causing the death of the deceased is offered as motive for the crime. The purchase of rice was sought to be proved by the evidence of P.W.4 Kirana shop owner. Though he turned hostile, in his chief examination, he deposed that it is Swamy who purchased 50 kgs of rice and at the time of purchase of rice, A-1 was also present. The evidence of P.W.4 does not even properly suggest that Swamy arranged rice for A-1. Except the evidence of P.W.4 who turned hostile, there is no evidence on record to support the cause of dispute being the purchase of rice by Swamy for the use of A-1. Even otherwise, when Swamy purchased rice for A-1 which was the reason for the disputes between A-1 and Swamy, there was role played by A-2 and it is not the case of the prosecution that the relationship between A-2 and Swamy were also strained. Admittedly, A-1 is none other than the maternal uncle of the deceased Swamy and there is nothing abnormal or peculiar for the deceased to purchase rice for his maternal uncle. Therefore, we are not persuaded to believe that there was a motive for the crime. The other circumstantial evidence is that A-1 and A-2 took the deceased Swamy on 20.4.2005 and that they were last seen together. P.W.1 is the elder brother of deceased and P.W.2 is the mother of the deceased and they are not only interested witnesses but whatever they spoke is hearsay. The prosecution also examined P.W.5 who is said to be the friend of the accused Nos.1, 2 and Swamy. He deposed that one and half year ago, A-1 and A-2 and the deceased came to his house and consumed toddy. It is nobody’s case that A-1 and A-2 took Swamy to P.W.5. Therefore, the evidence adduced by the prosecution on the aspect that the deceased and accused were seen together on 20.04.2005 is so weak and that it cannot lead to the conclusion as suggested by the prosecution. Even otherwise, it is well settled that the last seen theory is only based for conviction, if the possibility of the deceased moving differently with others is totally ruled out. In this case, the medical evidence shows that approximate time of the death of the deceased is 42 to 48 hours prior to autopsy. Since the dead body of the deceased was found after long time and since the approximate time gap is considerably longer the possibility of the deceased being not in the company of the accused cannot be ruled out. Therefore, we are of the opinion that the judgment in the appeal cannot be sustained and the same is liable to be set aside. In the result, the appeal is allowed. The conviction and sentence in S.C.No.190 of 2006 dated 26.09.2006 imposed by III Additional Sessions Judge (F.T.C-II), Khammam, is set aside and the appellant/accused No.2 is acquitted of the charge with which he is charged. We direct the release of the appellant/accused No.2 forthwith. _______________ V.V.S.RAO, J. ____________________________________ SAMUDRALA GOVINDARAJULU, J. 24.02.2010 Gk. HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1729 OF 2006 DATE:22.02.2010 Gk