THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 08-06-2011 CRIMINAL APPEAL No. 1226 OF 2007 Between: Iragaraju Bujjaiah ..... APPELLANT AND The State of Andhra Pradesh, rep., by Station House Officer, T.P Gudur Police Station, through Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1226 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) The appellant – accused who was tried for the offence punishable under Section 302 IPC in S.C No. 243 of 2003 and convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 200/-, in default to suffer rigorous imprisonment for a period of two months by the learned I Additional Sessions Judge, Nellore vide judgment dated 19-01-2006 preferred this appeal challenging the conviction and sentence recorded against him. The substance of the charge against the accused is that on 25- 09-2002 at about 10.00 PM near Vinayaka Temple of Mungaladoruvu Village he committed the murder by intentionally causing the death of Mogiligunta Kameswaraiah @ Eswaraiah (hereinafter referred to as ‘the deceased’) by stabbing him with a knife on his back and thereby he committed the offence punishable under Section 302 IPC. The prosecution story as narrated during the course of trial, briefly stated, is as under: The wife of the accused discarded him as he suspected her character about seven years back and since then he is living alone. On learning that the deceased had developed illegal intimacy with his brother’s wife Venkamma since three years, the accused threatened the deceased to stop the illegal intimacy with his brother’s wife. The deceased paid deaf ear to the warning of the accused and continued the illegal intimacy. On 25-09-2002 night which happens to be the 16th day function of Vinayaka festival, a Telugu cinema ‘Narasimha Naidu’ was to be screened near Vinayaka temple of Mungaladoruvu Village. At about 10.00 PM, when the deceased and PWs 1 and 2 were talking together near the temple pial, the accused came suddenly and stabbed the deceased with a knife on his back. Due to the said stab, the knife penetrated into the body of the deceased deeply. PWs 1 and 2 witnessed the occurrence and caught hold of the deceased on the hands and chased the accused. When they tried to chase the accused, the accused tried to remove the knife from the body of the deceased, but in vain. The wooden handle of the knife came to the hands of the accused and then he ran away. PWs 1 to 3 took the deceased to the Government Hospital, Nellore. PW 19 examined the deceased and declared him to be dead. On receipt of the death intimation of the deceased, PW 20 the Sub Inspector of Police, T.P Gudur recorded the statement of PW 1 under Ex.P-1 and registered the same as Crime No.117 of 2002 for the offence under Section 302 IPC on 26-09-2002 at 3.00 AM and forwarded a copy of the F.I.R to the IV Additional Judicial Magistrate of First Class, Nellore. PW 21, the Inspector of Police, T.P Gudur Police Station took up investigation, visited the scene of offence, drafted the observation report in the presence of PW 10 and another and prepared the rough sketch of the scene of offence, conducted inquest over the dead body in the presence of PWs 1 to 4, 6, 7, 18 and 19 to 21 and sent the dead body for postmortem examination. PW 12, the doctor conducted postmortem examination and issued Ex.P-7 postmortem report opining that the cause of the death is due to shock and hemorrhage due to injury to vital organs. The doctor removed the knife and handed over the same to constable (LW 27). PW 21 during the course of investigation in the presence of PWs 18 and 17 arrested the accused on 04-10-2002 and on the confession made by him, wooden handle of the weapon of offence was recovered from the house of the accused in a cover of panchanama in their presence and on completion of investigation, he laid the charge sheet against the appellant - accused before the IV Additional Judicial First Class Magistrate, Nellore who registered it as PRC No. 24 of 2003 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Nellore registered the same as S.C No. 243 of 2003 and made over to the learned I Additional Sessions Judge, Nellore who framed the charge against the accused for the offence under Section 302 IPC as aforementioned and explained the same to him in Telugu. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 21 and marked Exs.P-1 to P-21 and produced MOs 1 to 4. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C on the incriminating evidence. He denied the incriminating evidence and no defence witnesses were examined on his side. The learned Sessions Judge after analysing the oral and documentary evidence convicted the accused and sentenced him to imprisonment as aforementioned. Questioning the same, the present appeal is filed by the appellant - accused. As none appeared on 07-04-2011, the matter was adjourned to be listed under the caption ‘for dismissal’ and thereafter also, it underwent two adjournments. Even though the matter is listed under the caption ‘for dismissal’, today also neither the learned counsel for the appellant is present nor there is any representation on his behalf. We have heard the learned Public Prosecutor and have also gone through the entire evidence. The point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt and the conviction and sentence recorded against the appellant – accused are liable to be set aside or modified? PW 1 is the younger brother of the deceased who set the criminal law into motion. At the earlier point of time, he stated before the police under Ex.P-1 that on the date of incident, himself and the deceased went to see the picture Narasimha Naidu by the side of Vinayaka temple and the cinema is yet to commence. PW 2 came there and when all the three were talking, the accused came there and stabbed the deceased with a knife and left and the deceased cried loudly. He caught the deceased while felling down and placed on the ground. When himself and PW 2 followed to catch the accused he escaped. Whereas, PW 1 deposed before the Court that the deceased having received injury on his back dropped down. When himself and PW 2 tried to catch hold of the accused, the accused tried to withdraw the knife, but he failed in his attempt and the handle of the knife was withdrawn and with that handle, the accused ran away from that place. When asked by them, the deceased told that the accused has grouse against him on the ground that his brother’s wife was living in adultery with him and on that, he stabbed him from his behind. Meanwhile, PW 3 also arrived and himself, PWs 2 and 3 shifted the deceased to DSR Government Headquarters Hospital, Nellore for treatment. He admitted in the cross examination that about 100 persons gathered near the temple to watch the cinema that was being arranged in connection with the festival. He denied the suggestion that he has not stated in Ex.P-1 that after giving stab injury to the deceased on his back, the accused tried to withdraw the entire knife and he could withdraw handle alone and went away with that handle. He also stated that the police examined him first at Government Headquarters Hospital, Nellore and later at his house on the next day in the evening. When he was trying to shift the deceased to the hospital at Nellore in an auto rickshaw, PW 3 came there. At the place of incident, two or three drops of blood also fell on the ground from the injury. PW 2 was declared hostile as he has not supported the case of the prosecution. PW 3 deposed that on hearing the cries that the deceased was stabbed, he rushed to the place of offence from his house and when questioned by him, the deceased told that the accused stabbed him and managed to escape from that place. He stated that himself, PWs 1 and 2 shifted the deceased to Government Hospital, Nellore in an auto rickshaw. PWs 4 and 5 are not the eye witnesses to the incident but visited the place of offence after the incident on PW 2 informing that the accused gave a blow to the deceased. PW 12 is the doctor who conducted postmortem examination of the deceased and issued Ex.P-7 postmortem examination certificate. In the cross examination, she stated that she has mentioned in the report that there is a knife (churu kathi), but there is a difference between knife and churu kathi. It is mentioned in Ex.P-7 under the external injuries that there is a knife (churu kathi) on the middle of the back of chest 8” below the back of neck from hairline between the two scapula 2 cms towards left to the midline placed vertically with its sharp edge facing downwards and that the knife has been removed with force. The Investigating Officer who is examined as PW 21 deposed that he held inquest over the dead body of the deceased, examined PWs 1, 2, 3, 4, 5, 7 and 14 and recorded their statements and prepared inquest report Ex.P-10. In the cross examination he stated that PW 2 stated to him as in Ex.P-2. He admitted that PW 1 has not stated to him that pidi (wooden handle) of the knife was separated from the knife. PW 1 has not stated to him that the incident took place at 10.00 PM and the accused stabbed the deceased by knife on the center of his back. PW 1 has not stated to him that the accused employed chura knife in order to stab the deceased either in the first information report or in the statement recorded by him under Section 161 Cr.P.C. In Ex.P-2 statement, PW 2 stated that when they tried to catch the accused, he escaped with the knife towards southern side. In the inquest report under Ex.P-10 in column No. VII, it is stated thus: “………on the middle of the back knife inserted, to and some portion of the knife is visible to some extent. The knife is bending condition to some extent. The knife is one side sharp, the knife is visible on the back of dead body 3.2 inches. The knife is fixed in the frame is about 2 ½ inches iron handle without wooden handle. The width of the knife is 1.3 inches.” According to PW 21, the Investigating Officer, MO 1 is a wooden handle of knife and the doctor handed over the chura knife without the wooden handle and the said wooden handle of the knife was seized at the instance of the accused as per his confession which was produced in the presence of PW 17 who is declared hostile as he has not supported the case of the prosecution. Curiously, under Ex.P-21, FSL report, it was mentioned at serial No.3 that one knife with wooden handle with dark brown stains was forwarded for examination. The learned Sessions Judge in para 27 of the judgment observed that the evidence of PW 21 would show the arrest of the accused at Kotha Kaluva Center as per Ex.P-19 and in pursuance of the disclosure made by the accused, he seized the wooden handle of knife MO 1 from the house of the accused. No doubt, PW 17 was treated as hostile but there appears to be no ill will or grouse to PW 21 to grind the axe against the accused and accordingly convicted the accused. Admittedly, PW 1 in the initial statement under Ex.P-1 has not stated that the accused tried to withdraw the knife but he failed in his attempt in withdrawing the knife and withdrew the handle of the knife alone and went away with that handle. PW 21, the Investigating Officer admitted that PW 1 has not stated to him that the wooden handle of the knife was separated and that the incident has taken place at 10.00 PM, which clearly goes to show that PW 1 was not present at the time of incident but might have reached the scene of offence subsequently. Therefore, he is not an eye witness to the incident. Further more, PW 2 in his initial statement under Ex.P-2 stated that when they tried to catch the accused, he escaped with knife towards southern side. In the postmortem examination, PW 12 found that the stabbed knife was removed by force from the dead body by herself without wooden handle. Therefore, it is clear that PWs 1 and 2 are not the eye witnesses to the incident as projected by the prosecution but they might have reached the scene of offence subsequently. If the said evidence is excluded there is no other evidence to prove the guilt of the accused. The prosecution miserably failed to establish the guilt of the accused. Further, there is a suspicion with regard to recovery of the wooden handle from the possession of the accused. In view of the same, the accused is entitled to benefit of doubt. In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellant – accused in S.C No. 243 of 2003 by the learned I Additional Sessions Judge, Nellore are set aside and he is set at liberty forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. A. GOPAL REDDY, J RAJA ELANGO, J 08-06-2011 ks