THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1201 of 2007 Dated : 20.04.2011 Between : Dasari Venkata Swamy …. Appellants-A.2 a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1201 of 2007 JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellant-A.2 questioning the judgment of conviction passed in Sessions Case No.168 of 2006 by the I Additional Sessions Judge at Mahabubnagar on 04.04.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to undergo imprisonment for Life and also to pay fine of Rs.500/- in default to suffer simple imprisonment for three months for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’) while A.1 was acquitted for the offence under Section 302 read with 109 IPC. 2) The case of the Prosecution, in brief, is that the deceased Mandla Krishnaiah was married and blessed with a son and daughter and used to eke out his livelihood by doing Hamali work. While so, the wife of the deceased by name Nagamani (A.1) developed illegal intimacy with one Dasari Venkata Swamy (A.2). While so, on 04.08.2005 at 11.00 p.m. P.Ws 3 and 5, the neighbours of the deceased, heard the hue and cry from the house of the deceased, upon which, they rushed to the house of the deceased and found A.1 weeping. While proceeding to the house of the deceased they saw A.2 fleeing from the scene of offence. They suspected foul play, rushed to the scene and found the deceased lying in a pool of blood with cut on his throat and neck with sharp edged weapon. On the next day morning P.W.1, the brother of the deceased, gave a report to the Police, basing on which Police registered a case in Crime No.75 of 2005. 3) The investigation agency after completion of entire investigation filed charge against A.1 and A.2, which was numbered as P.R.C. No.5 of 2006 by the Judicial First Class Magistrate, Kollapur. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Section 302 IPC against A.2 and under Section 302 read with 109 IPC against A.1, in which, the accused denied the respective charge and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 10 and marked Exs.P.1 to P.13 apart from marking MOs 1 to 9. Ex.D.1 was marked by the defence during the examination of P.W.6. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. Accused did not choose to adduce any oral evidence on their behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Session Judge rendered the impugned judgment as stated above. 6) Heard the learned counsel for the appellant and the learned Public Prosecutor for the State. 7) P.W.1, who is the brother of the deceased, is not an eyewitness to the occurrence. On the basis of the information given by P.W.3, he lodged Ex.P.1 complaint. P.W.2 is also not an eyewitness to the occurrence. P.W.3, who claims to be an eye witness to the occurrence, deposed before the Court that on the fateful day at 11.00 p.m. while he was returning after attending the funeral of his relative, he saw A.2-appellant herein leaving the house of the A.1 and deceased and then he went into the house and saw the deceased lying dead and A.1 was found weeping. 8) P.W.4 is the doctor, who conducted post-mortem examination over the dead body of the deceased. P.Ws 5 and 6 are the circumstantial witnesses. P.W.7 is the panch witness to the inquest panchanama. P.Ws 8 and 9 are the panch witnesses to the confession and recovery panchanama. P.W.10 is the investigation officer. 9) The entire case of the prosecution is based on the evidence of P.W.3, who claims to be an eyewitness to the occurrence. It is the evidence of P.W.3 that while he was returning from the funeral of his relative, he went to the house of A.1 on seeing A.2 leaving the house of deceased in a disturbed mood, but it is the evidence of P.W.4 that P.W.3 went to the place of occurrence on hearing the sounds of the deceased. In Ex.P.1 complaint lodged by P.W.1 it is clearly stated that P.W.3 went into the house of the deceased only after hearing the cries of the deceased. Further, the complaint was also not lodged on the same day of occurrence. The occurrence was known to P.W.3 as well as P.W.1 by 11.00 p.m. on 04.08.2005 whereas the complaint Ex.P.1 was lodged on 05.08.2005 at 9.00 a.m. 10) Further, P.W.6 in his evidence denied to have stated before the investigation officer that one day after the incident the brother of the deceased came to his shop and informed his relatives over telephone as if that somebody murdered his brother. The relevant portion of the 161 Cr.P.C. statement of P.W.6 is marked as Ex.D.1 by the defence. In these circumstances, the evidence adduced by P.W.3, who claims to be the eyewitness to the occurrence, does not inspire the confidence of this Court. 11) Further, a reading of Ex.P.1 complaint clearly reveals that the present appellant (A.1) and A.2 are responsible for the said murder. But, no explanation was given by the investigation officer as to why A.1 was not arrested on the same day. 12) As far as recovery of material objects is concerned, it is the case of the prosecution that while committing murder of the deceased, the clothes of A.1 were stained with blood, whereas clothes of A.2 were not stained with blood and this version of the prosecution is also unbelievable in nature. Further, in this case, to connect the accused with the crime, there is no other evidence on record except the evidence of P.W.3. In the absence of any cogent evidence adduced by the prosecution to connect the accused with the crime, convicting the appellant merely relying on the evidence of P.W.3 is highly unsafe that too for an offence under Section 302 IPC, which is punishable with a minimum sentence of life imprisonment. 13) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant-A.2 by the learned I Additional Sessions Judge at Mahabubnagar in Sessions Case No.168 of 2006 on 04.04.2007 for the offence punishable under Section 302 of Indian Penal Code are hereby set aside and he is acquitted for the said offence. Appellant-A.2 be set at liberty forthwith, if he is not required in any other case. The fine amount paid by the appellant, if any, shall be returned to him. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 20th April, 2011 sur