THE HON’BLE SRI JUSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL No. 776 of 2007 JUDGMENT: (per Hon’ble Sri Justice N.R.L. Nageswara Rao) The Accused in S.C. No. 325 of 2006 on the file of the III Additional Sessions Judge, Fast Track Court at Kadapa, who was convicted for the offences under Sections 302 and 380 of I.P.C. is the appellant herein. According to the case of the prosecution, the deceased Yanadaiah was resident of Upparapalli and was working as a Watchman to the cool drink shop of P.W.2 and also the shop of P.W.7, who is the owner of a wine shop. The accused is a rowdy element and addicted to bad vices and in order to rob the properties on 28.12.2005 and 29.12.2005, watched the movements of the deceased. On 30.12.2005, when the deceased was sleeping in front of the shop of P.W.2, the accused went there, attacked him and killed him and thereafter, committed theft of cash of Rs.460/- and also some brandy bottles from the shop of P.W.7. In the early hours of 31.12.2005, P.W.5, newspaper boy came to the shop of P.W.2 and found the deceased dead. He in turn informed the son of the deceased, P.W.1. Thereafter, P.W.1, noticing the death of his father, lodged the complaint, which was registered as case in Crime No. 110 of 2005 under Sections 302, 457,380 I.P.C. and investigated into the same. During the course of investigation, the statements of the witnesses were recorded, panchanama of the scene was conducted and inquest was held over the dead body of the deceased. Thereafter, the accused is said to have gone to P.W.9 and gave a voluntary confessional statement, which was recorded by P.W.9, and thereafter, he was produced before the police. The accused gave voluntary confessional statement on 25.6.2006 and in pursuance of the confessional statement, the police have seized iron rod and screw driver, which are said to have been used in the commission of offence. The investigation disclosed that the accused has committed the offences under Sections 302, 397,393, 457, 379 and 380 of I.P.C. and accordingly on completion of the investigation, the police have filed charge sheet for the offences under the above Sections. The case was taken on file as P.R.C. No. 15 of 2006 by the Judicial First Class Magistrate, Koduru, who committed the same to the Court of Sessions, which was made over to the Court of the III Additional Sessions Judge, Fast Track Court at Kadapa. After appearance of the accused, the charges under Sections 457,302,380 of I.P.C. were framed, read over and explained to him. On behalf of the prosecution, P.Ws. 1 to 15 were examined and Exs. P1 to P13 and M.Os. 1 to 11 were marked. After the evidence of the prosecution is over, the accused was examined under Section 313 of Cr.P.C. and no defence evidence is adduced. After considering the evidence on record, the learned Sessions Judge found the accused guilty of offences under Sections 302 and 380 I.P.C. and found him not guilty of the offence under Section 457 I.P.C., and accordingly convicted and sentenced him. Aggrieved by the said judgment, the present appeal is filed. Since the accused has no means to defend himself, Smt.S.Hemalatha was appointed as a legal aid counsel. Heard the learned counsel for the appellant and the learned Public Prosecutor. The points that arise for consideration are : 1) Whether the prosecution has proved that the accused has committed the murder of the deceased and committed theft of cash and other articles from the shops of P.W.2 and P.W.7 ? 2) Whether the extra judicial confession said to have been given by the accused to P.W.9 is reliable and true ? 3) Whether the conviction and sentence recorded by the learned Session Judge is legal and sustainable ? POINTS: In support of the case of the prosecution, P.W.1, who is the son of the deceased stated about the deceased being employed as a watchman on the shops of P.Ws.2 and 7 and about the information received by him on 31.12.2005 from one Tirupalu about the death of his father and going to the scene and thereafter giving the complaint, Ex.P1 to the police. He is not an eye witness to the incident. P.Ws. 2 and 7 are said to be the owners of the shops, who have employed the deceased as Watchman and they spoke about the death of the deceased when he was doing night duty in front of their shops and consequential loss of cash and brandy bottles from their shops. P.W.3 is employed by P.W.7 as a Cashier and he claims o have got information from P.W.5, paper boy of Eenadu. He spoke about going to the scene and noticing the dead body of the deceased. P.W.4 also is a neighbour of the shops of P.ws. 2 and 7. He spoke about the death of the deceased. P.W.5 is the paper boy, who is said to have seen the dead body of the deceased and who informed P.W.1 and others. PW.6 did not support the prosecution case and was declared as hostile. He was examined to prove that he has seen the accused prior to the incident near the scene. P.W.8 did not also support the prosecution case about the circumstances against the accused and was declared as hostile. P.W.9 is said to be the Panchayat Secretary of S.Upparapalli Village and according to him, on 25.6.2006, at about 2.30 p.m.,the accused came to him and informed him that he has committed an offence. But, the particulars of the offence were not disclosed by him and he reduced the confessional statement of the accused on a white paper and identified it as Ex.P4. Thereafter, he claims to have taken the accused to the police station. In his cross- examination, he has stated that he has seen the accused only on the date of Ex.P4 and he has no prior acquaintance with the accused. When he was specifically questioned about the fact that Ex.P4 was drafted at the dictation of the police, he admitted. In re-examination by the Public Prosecutor, he sought permission to further question and the Court has refused the permission on the ground that the points to be raised by the Public Prosecutor can be considered in the arguments on merits. P.W.10 spoke about his presence at the time when the accused gave voluntary confessional statement and in pursuance of the confession, seizing of M.Os.5 and 6. P.W.11 is the person, in whose presence inquest was held over the dead body of the deceased. There was no seizure of the properties at that time. P.W.12 spoke about conducting Postmortem examination over the dead body of the deceased and noticing the injuries in Ex.P8,postmortem Certificate. He opined that the deceased died due to head injury. The evidence of P.Ws.13,14 and 15 is about the investigation done by them in the case. The learned Sessions Judge having convicted the accused for offences under Sections 302 an 380 of I.P.C., found the accused not guilty of the offence under Section 457 of I.P.C. holding that there is benefit of doubt. The case of the prosecution is that after killing of the deceased, the accused entered into the shops of P.Ws. 2 and 7 and committed theft of cash and liquor bottles. If the factum of the accused entering into the shops is not believed by the Court, then the possibility of committing the theft inside the premises is also doubtful. Apart from it, there is no direct evidence about the commission of offence by the accused. The evidence on record establishes only the fact that the deceased was employed by P.Ws. 2 and 7 as a Watchman of their shops and on 30.12.2005 when he was doing his duties, he was found dead. Therefore the factum of death is not disputable. But, however, the question is as to whether the accused has committed the crime. Evidently, there is absolutely no evidence on record to show that in or about the time when the offence is said to have committed, the accused was seen near the scene of offence or moving around the scene. Further more, with regard to the suspected conduct of the accused about his intention to commit the crime by planning earlier also, there is no other evidence. The learned Sessions Judge has relied upon the extra judicial confession, Ex.P4 given by the accused to P.W.9. Evidently, an extra judicial confession without supporting corroborative circumstances is a very weak piece of evidence unless it is more trustworthy and reliable. In fact, the extra judicial confession if given to a person should mention as to what is the confidence the accused is reposing in such person and seeking his protection or any other advice for the offence committed by him. There is no material to show that the accused has got prior acquaintance with P.W.9. If such is the case, it is difficult to believe that the accused has given confession to a stranger, disclosed the offence and sought his protection or intervention. Even otherwise, the evidence of P.W.9 is so vague to the effect that the accused has not even disclosed the nature of the crime, which he is said to have committed. But, a reading of Ex.P4 discloses several facts incriminating the accused himself. Therefore, the probability of the accused giving voluntary confessional statement to be recorded by P.W.9 when he approached him is highly doubtful. The admission of P.W.9 that Ex.P4 was drafted at the dictation of the police gains importance and there is any amount of doubt about the genuineness of Ex.P4 and it can only be taken as a statement, which could have been drafted by the police when the accused was brought to the police station. Therefore, from the entire evidence of P.W.9 and also the manner in which Ex.P4 is said to have been given, we have no doubt in coming to the conclusion that it is not a reliable piece of evidence and on such statement, no conviction can be based. Further more, the alleged confession is said to be nearly six months after the commission of the offence and there is nothing to show as to what the police have done to trace the real culprits. Therefore, for all the above reasons, we are of the opinion that the conviction and sentence recorded by the learned Sessions Judge is not legal and sustainable and the accused is entitled for an acquittal. Accordingly the points are answered. In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded by the III Additional Sessions Judge, Fast Track Court, Kadapa at Rajampet vide judgment dated 10.4.2007 in Sessions Case No. 325 of 2006, against the appellant/Accused for the offences under Sections 302 and 380 of I.P.C. The appellant-accused is found not guilty and he is acquitted of the charges. He shall be released forthwith if he is not required in any other case. The fine amount, if any, paid by the appellant/Accused shall be refunded to him. ______________ K.C. BHANU,J Date: 22nd December, 2010 __________________________ N.R.L. NAGESWARA RAO,J pnb