HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.200 OF 2007 Dated:29-06-2010 BETWEEN: Nesam Sreenu …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.200 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) This is an appeal by the sole accused challenging the judgment of I Additional Sessions Judge, Rajahmundry, dated 18.1.2006, whereby he was convicted for the offences under Sections 302 and 404 I.P.C. and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for a period of one year for the offence under Section 302 I.P.C. and was also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default, to suffer simple imprisonment for six months. 2. The gravamen of the charge against the accused-appellant is that on 6.2.2005 at 3.30 p.m., he caused the death of Balam Vijaya Deepika (hereinafter called as ‘deceased’) aged about 4 years, daughter of Balam Tatayyalu and Balam Venkata Lakshmi (P.Ws.2 and 3) and committed the theft of her two gold ear-rings at the outskirts of Uppalapadu Village and thereby committed the offences under Sections 302 and 379 I.P.C. 3. The case of the prosecution as narrated during the course of trial, in brief, is as under: P.Ws.2 and 3 are the parents of the deceased and are residents of Uppalapadu Village, Addathigala Mandal. Accused is the native of Velamakota Village, Rampachodavaram Mandal. On Sunday i.e. on 6.2.2005 P.W.2 left the house to tap toddy at about 12.00 Noon and P.W.3 and the deceased were at home. When he returned home in the evening at about 4.00 or 4.30 p.m., P.W.3 informed about the missing of deceased. He went in search of the deceased, but in vain. Then P.Ws.4 and 5 informed that they saw the accused carrying the deceased on his shoulders towards the canal. The accused came to the house of P.W.2 and when questioned, he initially denied and subsequently confessed in the presence of P.Ws.2 to 4, 6 and 7 that he killed the deceased. On such confession, the accused was tied to a pole near Ramalayam and thereafter, all of them went in search of the deceased leaving the accused there itself, but could not trace the dead body of the deceased. On Monday i.e. on 7.2.2005 P.W.7 and one Malleswara Rao traced the dead body of the deceased near Kondakaluva Vagu and brought the dead body to the house of P.W.2. One Kakada Appa Rao, village servant came to P.W.1-Panchayat Secretary and informed that the accused took away the deceased, committed murder and stolen the gold ear-rings. On that, P.W.1 and the village servant went into the village and found the dead body in front of the house of P.W.2. He prepared a report under Ex.P.1 and presented it police of Addathigala. P.W.10-Sub Inspector of Police, Addathigala, on receipt of report, registered a case in Crime No.6 of 2005 for the offences punishable under Sections 302 and 379 I.P.C. and submitted the F.I.R.-Ex.P.9 to all concerned. P.W.11-the Circle Inspector of Police on receipt of express F.I.R., took over the investigation, proceeded to the scene of offence, prepared observation report under Ex.P.2, got photographed the scene of offence through P.W.9, and prepared the rough sketch under Ex.P.10. He recovered M.Os.1 and 2 from the scene of offence. Later, P.W.11 held inquest over the dead body of the deceased in the presence of P.W.1, L.W.10 and L.W.11 and prepared inquest report under Ex.P.3. The inquest mediators opined that the deceased died due to smothering. After conducting inquest, P.W.11 sent the dead body for post-mortem examination. P.W.8-the doctor conducted the post-mortem examination on the dead body of the deceased and issued Ex.P.5 post-mortem certificate opining that the cause of death of the deceased was due to asphyxia due to smothering, and that the time of death was 2 to 3 days prior to the post-mortem examination. P.W.12-Inspector of Police took over further investigation, arrested the accused on 9.2.2005 in the presence of P.W.1 and L.W.10, that on the basis of confessional statement made by the accused, he seized M.O.3-pair of golden ear-rings and also M.O.4-cigaratte packet. After completion of investigation, he laid the charge sheet. 4. When the accused was examined under Section 313 of Cr.P.C. on the incriminating material elicited from the prosecution witnesses, he pleaded not guilty and stated that he is a resident of Velamakota, visited P.W.6 during festival, that he used to visit the house of the parents of the deceased to consume toddy, that on the date of occurrence, he went to their house to consume toddy as usual, but they said that the girl was missing, so he too joined them in search of her, but since he alone was new to that village, he was made to consume liquor, tied to a pole at Ramalayam and was forced to confess the offence. He has not led any evidence except marking Ex.D.1, portion of Section 161 Cr.P.C. statement of P.W.6. 5. The Trial Court upon consideration of evidence on record and mainly relying upon the evidence of P.Ws.4 and 5, who are the child witnesses who last seen the deceased being taken by the accused on his shoulders and basing on the so- called extra judicial confession made by the accused about his committing the offence, held that the accused is guilty of the offences punishable under Sections 302 and 404 I.P.C. and accordingly convicted and sentenced him as aforementioned. 6. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor. 7. Learned counsel for the appellant contends that the accused was forced to confess that he committed the offence, that the recovery of M.O.3 i.e. pair of golden ear-rings has to be disbelieved. The evidence of P.Ws.4 and 5, who are child witnesses, is not consistent with regard to their seeing the accused carrying the deceased and that the evidence of P.W.6 discloses that the accused along with P.W.2 searched for the deceased but they could not trace out the deceased but the dead body of the deceased was found on the next day at about 10.00 a.m. The evidence of P.W.6 is also to the effect that the accused was present till the police arrived on 7.2.2005 and therefore, his arrest on 9.2.2005 and the so-called recoveries pursuant to the confession cannot be believed. It is contended that the accused is innocent and was implicated falsely in the commission of offence and therefore, he is entitled for acquittal. 8. Per contra, learned Public Prosecutor while sustaining the conviction and sentence would contend that the evidence of P.Ws.4 and 5, who are child witnesses, clearly discloses that while they were returning to the village they saw the accused carrying the deceased on his shoulders towards Konda Kaluva, and therefore, it is for the accused to explain the cause for the death of the deceased. P.W. 7 also supported the said evidence, who traced out the dead body of the deceased on the next day morning. The medical evidence of P.W.8 and the post- mortem certificate-Ex.P.5 clearly discloses that the deceased died due to asphyxia due to smothering. Therefore, he contends that the conviction and sentence recorded by the trial Court needs no interference. 9. The evidence of P.W.2, the father of the deceased is that on 6.2.2005 he left the house at 12.00 Noon for tapping toddy. When he returned home in the evening, P.W.3 told him that the deceased was missing. While P.W.2 was searching for the deceased, P.Ws.4 and 5 informed him that they saw the accused carrying the deceased on his shoulders towards the canal. When he questioned the accused, he denied the same but subsequently confessed that he killed the deceased. So, they tied the accused to a pole near Ramalayam, but in the night, he managed to escape. On the next day morning, Yetla Malleswara Rao-L.W.10 and another brought the dead body of the deceased to their house. Then they found the ear-rings of the deceased were missing and there were reddish marks on her neck, ears, stomach etc. After two days, police brought the accused to Ramalayam, asked P.W.2 to identify the ear-rings-M.O.3, and that he identified them as the ear-rings worn by the deceased. P.W.3, the wife of P.W.2 also supported the version of P.W.2 about the three boys namely P.Ws.4 and 5 and another informing them that they saw the accused carrying the deceased on his shoulders towards check dam, and about the confession made by the accused. P.Ws.4 and 5 are child witnesses. P.W.4 deposed that himself, P.W.5 and one Y.Satyanarayana Reddy had bath in the canal at about 3.30 p.m. and while returning to the village, he saw the accused carrying the deceased on his shoulder towards Kondakaluv. Later, he found P.Ws.2 and 3 searching for the deceased. Then he told to P.W.3 about their seeing the accused carrying away the deceased on his shoulders towards Kondakaluva. Villagers caught hold of the accused and on enquiry, the accused confessed that he killed the deceased for golden ear- rings, and therefore, he was tied to a pole near Ramalayam. In the cross- examination also he stated that he saw the accused taking away the deceased at 4.00 p.m. P.W.5 deposed that while they were returning to the village after having bath in Kondakaluva and when they reached near cashew garden, he saw the accused proceeding towards Kondakaluva carrying the deceased on his shoulders. With regard to the time, he stated that it was becoming slightly dark. When he found P.W.3 crying that her daughter was missing, he told her that he saw the accused carrying away the deceased towards Kondakaluva. According to P.W.6, accused is his nephew by courtesy. He searched for the deceased, and that the accused also joined him in the search party with a torchlight. On coming to know through P.Ws.4 and 5 that the accused carried away the deceased, the accused was tied to a pole near Ramalayam and on enquiry by the village elders, he confessed that he killed the deceased for taking away her gold ear-rings. In the cross-examination he stated that the accused used to go for cooli work along with him and that he was not paying him (P.W.6) cooli amount in spite of his demand as he was staying with him. On the date of incident, he returned home in the evening at 6.00 p.m., by which time, the accused was tied up to a pole near Ramalayam. The accused used to consume toddy in the house of P.Ws.2 and 3. On the following morning at about 10.00 a.m., the accused was present when the police arrived in the village and that he was handed over to police as he confessed to have killed the deceased. P.W.7 deposed that the accused was tied to a pole in the village on the disclosure by P.Ws.4 and 5 that they saw him taking away the deceased. On Monday morning, himself and Malleswar Rao-L.W.10 traced out the dead body of the deceased near Kondakaluva vagu and they brought the dead body to the house of P.W.2. P.W.8 is the doctor who conducted post-mortem examination on the dead body of the deceased on 8.2.2005 at about 11.30 a.m. and issued Ex.P.5 post-mortem certificate. He opined that the cause of death of the deceased was due to asphyxia due to smothering. According to him, the time of death of the deceased was 2 to 3 days prior to the post-mortem examination. He also deposed that upon the requisition from police on 9.2.2005, he examined the accused and found external injuries, which are simple in nature and aged 12 to 24 hours prior to the examination. He also issued Ex.P.6 wound certificate. P.W.11 is the Circle Inspector of Police who conducted initial investigation, conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination. In the cross-examination he denied the suggestion that the accused was present in the village and took him into custody on 7.2.2005 itself. P.W.12 is the subsequent investigating officer who arrested the accused on 9.2.2005 and sent him for medical examination to Government hospital. He recovered M.Os.3 and 4 on the confessional statement made by the accused. 10. As per the evidence of P.W.6, while he was searching for the deceased, accused also joined him in the search party with torchlight on 6.2.2005. At about 6.00 p.m., on the disclosure made by P.Ws.4 and 5, the accused was tied up to a pole near Ramalayam and on the following morning, at about 10.00 a.m., he was handed over to police as he confessed to have killed the deceased. But, P.W.11 in the cross-examination denied the suggestion of handing over of the accused on 7.2.2005, and on the other hand, he speaks about apprehending the accused on 9.2.2005. The evidence of P.W.6 who searched for the deceased also establishes that the accused was tied up to a pole and was beaten up and handed over to the police on the next day morning. The injuries received by the accused also probablises that he was under the illegal confinement from 7.2.2005 onwards. Therefore, the so-called confession made by the accused at whose instance, the pair of golden ear-rings were recovered which were identified to be that of the deceased by P.W.2 cannot be believed because such golden articles are commonly available in the rural families. As already adverted, P.W.4 stated that while they were returning to village after taking bath in the canal at about 3.30 p.m., he saw the accused carrying the deceased on his shoulders. Whereas, P.W.5 stated that they saw the accused carrying the deceased on his shoulders and at that time, it was slightly dark. From the said evidence, the time when the accused was carrying the deceased is also not specific. According to the evidence of prosecution witnesses, by 6.00 p.m. on 6.2.2005 the accused was tied to a pole as he confessed to have killed the deceased. Then as to why P.Ws.2, 3 and 6 were searching for the deceased in the night with torchlight leaving the accused there at Ramalayam is not known. As to why they did not take the accused to the place where he alleged to have killed the deceased and why they did not trace out the dead body until it was brought by P.W.7 on the next day morning at about 10.00 a.m. is also not known. As per the evidence of P.W.2, one Yetla Malleswara Rao- L.W.10 and another brought the dead body of the deceased to their house. The evidence of P.W.8, doctor who issued the post-mortem certificate also shows that the time of death was 2 to 3 days prior to his conducting post-mortem examination, which was conducted on 8.2.2005 at about 11.30 a.m. As per the evidence of P.W.4, the deceased was seen alive at about 4.00 p.m. on 6.2.2005 and whereas, as per the evidence of P.W.5, she was seen alive between 5.00 to 6.00 p.m. It is only 36 hours to 40 hours by the time the post-mortem examination was conducted but not 2 to 3 days prior to the post-mortem examination. In view of the missing link in the chain of circumstances to connect the accused with the commission of offence, it is not safe to convict the appellant-accused only on the basis of evidence of P.Ws.4 and 5, who have allegedly seen the accused carrying the deceased on 6.2.2005. Therefore, the appellant-accused is entitled to benefit of doubt. 11. In the result, the appeal is allowed. The convictions and sentences recorded against the appellant-accused of the offences under Sections 302 and 404 I.P.C., by I Additional Sessions Judge, Rajahmundry, vide judgment, dated 18.01.2006, in Sessions Case No.157 of 2005, are set aside and he is acquitted of the said charges. He shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellant-accused shall be refunded to him. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J JUNE 29, 2010 Tsr.