IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.282 OF 2007 Mandati Krishnaiah @ Kistaiah …Appellant A n d State of Andhra Pradesh, Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.282 of 2007 ORAL JUDGMENT: (per the HON’BLE SRI.JUSTICE D.S.R.VARMA) Heard the learned counsel appearing for the appellant-sole accused, appointed by the A.P. High Court Legal Services Committee, and the learned Additional Public Prosecutor, appearing for the respondent-State. 2. This Criminal Appeal is directed against the judgment, dated 24.01.2007, passed by the IV Additional Sessions Judge, Nellore, in S.C.No.84 of 2005, convicting the accused for the offence punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and sentencing him to suffer imprisonment for life and to pay a fine of Rs100/-, in default to suffer simple imprisonment for six months. 3. The case of the prosecution, in brief, is that the accused is the husband of one Mandati Vijayamma (hereinafter referred to as ‘the deceased’); that they lived happily for some time and due to some family feuds, they started living separately; that, later, they married others and again got separated; that again they joined each other and started living together; that, thereafter, there were no disputes whatsoever between the accused and the deceased; that, on the date of incident i.e., 05.10.2004, the accused went to forest first in the morning and upon being called by him, the deceased went to the forest and joined the accused to help him in cutting the firewood; that P.W.6, who went to the mango garden, while coming back through the forest, witnessed the accused and the deceased cutting the firewood at 3.00 pm; that, at the same time i.e., 3.00 pm., P.W.7 heard the cries of the deceased, rushed to that place and found the deceased lying in a pool of blood with injuries all over the head and, at that point of time, he also saw the accused walking away at a distance of one kilometer with blunt knife (‘Moddu Kathi’) in his hands and then he returned back to the village; that, subsequently, P.W.1, the brother of the deceased, having realized that the accused and the deceased did not turn back even in the night, they went in search of the spouses along with P.Ws.2, 3, 6 and others and eventually found the deceased dead; that, this fact of noticing the deceased lying dead was at 12.00 midnight; that all of them came back to the village, which is situate just away from the forest, but did not inform anyone on that night; that, on the next day morning, they went to P.W.9, the Panchayat Secretary, and informed him; that, later, P.W.1 along with P.W.9 went to the police station and gave a report-Ex.P-1 and that after completion of all the formalities, police laid the charge sheet. 4. In order to substantiate its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to 9, besides M.Os.1 to 13. On behalf of defence, D.Ws.1 and 2 were examined and Exs.D-1, D-2 and Ex.X-1 were marked. 5. P.W.1, who gave the report, under Ex.P-1, to the police, is the brother, P.W.2 is the mother, P.W.3 is the relative of the deceased and also a circumstantial witness, P.Ws.4 to 6 are the circumstantial witnesses, P.W.7 is the alleged eyewitness to the occurrence, P.W.8 is the Doctor, who conducted autopsy over the dead body of the deceased, P.W.9 is the mediator for the scene of offence and inquest, P.W.10 is the mediator for arrest of the accused, P.W.11 is the police constable who had taken the dead body of the deceased to the Government Hospital for postmortem examination, P.W.12 is the Sub-Inspector who registered the F.I.R, under Ex.P-7, and P.W.13 is the investigating officer. 6. The trial Court, having considered the entire material, including evidence, both oral and documentary, available on record, found the accused guilty of the offence punishable under Section 302 IPC and convicted and sentenced him, as stated supra. Aggrieved by the same, the accused preferred the present Criminal Appeal. 7. The learned counsel appearing for the accused contends that the trial court relied upon the evidence of P.Ws.1 to 6 and 9, which is not useful for the prosecution to establish the guilt of the accused. 8. On the other hand, the learned Public Prosecutor supported the judgment of the trial Court, in all fours. 9. In this background, the only question that arises for consideration is whether the trial court was right in appreciating the evidence, available on record, while recording the conviction and sentence against the accused for the offence under Section 302 IPC. 10. The evidence of relevant witnesses P.Ws.1, 2, 6, 7 and 12 and the relevant documents i.e., the complaint, under Ex.P-1, the F.I.R, under Ex.P-7 and the postmortem report, under Ex.P-2, requires to be looked into and the other documents on record are not helpful to the case of the prosecution. Similarly, the evidence of other witnesses need not be considered for the purpose of deciding the present case. 11. P.W.1, the brother of the deceased, deposed about the past relationship of the deceased with the accused and the deceased going to the forest at noon. Except this, there is nothing significant that could be seen from the testimony of P.W.1. However, it is important to notice that he deposed to the effect that when the deceased and the accused did not turn back, they along with other witnesses went to the forest and found the deceased lying dead with injuries at midnight and returned back. 12. The evidence of P.W.2, the mother of P.W.1, is also on the similar lines of P.W.1. Of course, there are slight variations in the evidence of P.W.2, on all material aspects. There is nothing important that could be noticed in her evidence to arrive at any conclusion. 13. P.W.3, the cousin brother of P.W.2, deposed to the effect that having found the accused and the deceased not returning till 7.00 pm., on that night, he along with his cousin, P.W.1, and another went to the forest and at about 12’0 clock in the night, they found the dead body of the deceased in the eucalyptus garden. Subsequently, they came back without informing anyone, including the police. 14. The evidence of P.W.4, who is distantly related to P.Ws.1 and 2, does not throw any light on the case of the prosecution. 15. P.W.5 is the person who came to know about the death of the deceased on the next day at about 8.00 am. He is only a hearsay witness. Therefore, his evidence is not of much relevance and does not help the case of the prosecution. 16. P.W.6, the then Sarpanch of Thellapadu village, deposed that he saw the accused and the deceased cutting the firewood at 3.00 pm., while he was coming from his mango garden through the forest. 17. But, in the cross-examination, he stated that he has no mango garden of his own and there is no plausible explanation coming forth from him as to why he went to the mango garden and was passing through the forest. It is also not clear as to whether it was necessary for him to go to mango garden via forest or not. 18. It is the further evidence of P.W.6 that he did not state before police that he was returning from the mango garden via forest. Therefore, having noticed this conflicting version, in his deposition, the trial Court, in fact, discarded the evidentiary value of P.W.6. 19. It is to be further noticed that P.W.6 was a party to the inquest, which was conducted by the police, on the next day, but, the alleged incident had taken place at 1.00 pm., on the previous day. When he was a party to the inquest, as an ordinary prudent person, he is expected to inform the police about what he had found on the previous day, but that did not happen. 20. The main purpose of the prosecution in introducing P.W.6 appears to be that only to support the theory that the deceased was found in the company of the accused last. But, there is evidence of this witness to the said effect. The theory of last seen also gets diluted with his conduct during the course of inquest and the discrepant versions in his own evidence. 21. Having regard to the facts and circumstances of the case, we are view that the trial Court had rightly held that the evidence of P.W.6 is not trustworthy for his deliberate attempt to make embellishments in his deposition. 22. Coming to the evidence of P.W.7, the version of this witness is to the effect that he heard the cries of the deceased and rushed to the scene of offence and found the deceased lying in a pool of blood with injuries all over the head and also saw the accused at a distance of one kilometer with ‘Moddu Kathi’ in his hand. This version is totally unbelievable and highly improbable. 23. In other words, it is not possible at all for anybody to trace or identify a person at a distance of one kilometer, that too, in a forest. Further, identifying ‘Moddu Kathi’ in the hands of a person, who was at a distance of one kilometer, is also absolutely unbelievable. 24. It is the specific case of the prosecution that the weapon used to kill the deceased i.e., ‘Moddu Kathi’ was found at the scene of offence itself. Therefore, this contradiction, which is very vital, is fatal to the case of the prosecution. 25. Further, it was rightly noticed by the trial court that P.W.7 did not state about his hearing the cries of the deceased, rushing to the spot and finding the deceased dead. Having regard to various discrepancies and improbable versions, the trial Court had rightly discarded the evidence of P.W.7 from consideration. 26. Now, what remains is the evidence of P.W.9. The role of P.W.9, in fact, is only to the limited extent of he being informed by P.W.1 about the death of the deceased and accompanying P.W.1. Therefore, the evidentiary value of P.W.9 is of no consequence. 27. The Doctor, P.W.8, who conducted autopsy over the dead body of the deceased and issued postmortem certificate, under Ex.P-3, noticed the following injuries: i) Dark red incised wound 2”X1cm bone deep present over right side of the head 1 inch below the right ear on desection dark red blood clots present in the muscle. Antimortem in nature. ii) Incised wound over the right ear 5cm x 2cm x 3cm congestion present under the tissue. iii) An incised wound present on back of the head 2” x 1 cm bone deep. On desection fracture of occipital bone present, blood clots present. iv) An incised wound frontal region of head 6cm x 2 cm skin deep. v) 2 cm linear abrasion present right side of nose. 28. P.W.8 opined that the cause of death is shock and haemorrhage due to head injuries. 29. From the above, it is proved that the death of the deceased was homicidal. 30. The next question, in the light of the above evidence on record, is -- is it possible for this Court to arrive at a conclusion that the accused alone was responsible for the death of the deceased? 31. As already noticed, there are no direct witnesses to show that the accused was the assailant. The entire case rests upon the circumstantial evidence. When a case rests solely on circumstantial evidence, such evidence has to satisfy the following tests as laid down by the apex Court in PADALA VEERA REDDY V. STATE OF ANDHRA PRADESH & OTHERS[1], wherein it was held thus: 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogent and firmly established. 2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 32. Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt? 33. Another aspect to be noticed is -- the conduct of the witnesses in this regard. 34. It is to be seen that all the witnesses stated that they went in search of the accused and the deceased after 7.00 pm., and eventually found the deceased dead at 12.00 midnight, but, they came to their respective houses, without making any effort to bring back the dead body of the deceased. 35. It is also on record that the police station is two and half ½ kilometers away from the place where the witnesses are living. It is not difficult under such circumstances to go to the police station and give a report. 36. It is surprising to note that all the witnesses who spotted the deceased at 12.00 midnight came back coolly to their houses, without even informing any responsible officer of the village. This appears to be somewhat surprising and contrary to the natural course of human conduct. 37. From the above facts and circumstances of the case, we are convinced that the prosecution had failed in connecting the accused with the offence with which he was charged. 38. The only two circumstances, relied upon by the prosecution, to connect the accused with the murder of the deceased viz., P.W.6 seeing the accused and the deceased together before occurrence and P.W.7 seeing the accused going away from the scene with the weapon ‘Moddu Kathi’, were not established nor the evidence in that regard was believed by the trial Court 39. Under these circumstances, we are of the opinion that the trial Court misinterpreted the evidence on record and erroneously recorded a finding of conviction and sentence against the accused. 40. For the foregoing, the impugned judgment, passed by the trial Court, is not sustainable and the same is liable to be set aside and consequently the conviction and sentence of the accused are liable to be set aside. 41. In the result, the criminal appeal is allowed, setting aside the conviction and sentence passed by the learned IV Additional Sessions Judge, Nellore, in S.C.No.84 of 2005, dated 24.01.2007, against the appellant-sole accused and the appellant/accused is accordingly acquitted. The appellant, who is now undergoing jail sentence in the present case, shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. _________________________ JUSTICE D.S.R.VARMA ______________________________ JUSTICE G.V.SEETHAPATHY 05TH NOVEMBER 2009 Bss/Lrkm THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.282 of 2007 (Judgment of the Division Bench delivered by the HON’BLE SRI JUSTICE D.S.R.VARMA) 05TH NOVEMBER 2009 [1] AIR 1990 Supreme Court 79