THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1786 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice A. Gopal Reddy) The present appeal is preferred against the judgment dated 07.08.2007 passed by the IV Additional Metropolitan Sessions Judge, Hyderabad in S.C.No.121 of 2007, whereby the appellant/sole accused was found guilty of the offence under Section 302 I.P.C., convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for three months. 2. The brief facts that are necessary for disposal of this case are as follows: P.W.1 is the wife of Syed Irfan (hereinafter referred to as ‘the deceased’). They were residing on the pavement at Tourist Hotel, Kachiguda. The deceased was eking out his livelihood by doing coolie work, whereas P.W.1 is a beggar and she also used to go for picking up waste papers. On the intervening night of 18.10.2006 at about 1 O’clock, while the deceased and the accused were sleeping, one person came there, woke up the deceased and asked him for a glass of water. Then the deceased grew wild and asked him to go away. On that the accused challenged that he will see their end and left the place. Again 45 minutes thereafter, the accused came there with a stone and threw it on the head of the deceased and ran away. P.W.1 went to Kachiguda Police Station and lodged a report- Ex.P.1. On the basis of Ex.P.1, P.W.4 the Assistant Sub Inspector of Police, registered a case in Crime No.269 of 2006 for the offence under Section 307 I.P.C and issued F.I.R-Ex.P.6. P.W.5-the Inspector of Police took over further investigation, visited the scene of offence and prepared an observation panchanama-Ex.P.7. Ex.P.6-A is the rough sketch of the scene of scene of offence. On receiving the death intimation, he altered the Section of Law from Section 307 I.P.C to Section 302 I.P.C and issued altered F.I.R-Ex.P.8. On 19.10.2006, P.W.6-Inspector of Police took over investigation, held inquest over the dead body of the deceased under Ex.P.9 and thereafter forwarded the dead body for post mortem examination. On 19.10.2006, P.W.3, the Civil Assistant Surgeon, Forensic Department, Osmania Medical College, Hyderabad held autopsy over the dead body of the deceased and issued Ex.P.5-post mortem certificate opining that the cause of death was due to head injury. On 19.10.2006 the accused was arrested and in pursuance of his statement M.O.1 was seized under Ex.P.4-panchanama. After receiving relevant documents and on completion of investigation, charge sheet was filed. 3. On committal, the Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the said charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.9, besides case properties M.Os.1 to 4. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. 5. Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor and perused the record. 6. The entire case of the prosecution rests upon the evidence of P.W.1-wife of the deceased, P.W.3-the doctor, who conducted post mortem examination over the dead body of the deceased, P.W.4, who registered the crime, recorded the statements, altered Section of Law and issued altered F.I.R-Ex.P.8, and P.W.5 and 6, who investigated into the crime. 7. P.W.1 deposed that herself and the deceased were residing on the pavement near Tourist Hotel, Kachiguda; that the deceased used to go for coolie work and she used to go for picking up waste papers and some times used to beg; that on 18.10.2006 in the late night i.e., at 1 O’clock some unknown person came to them while they were sleeping, woke up the deceased and asked him to provide water; that the deceased grew wild and asked him to go away and went to sleep and then the said person left the place saying that he will see the end of the deceased; that 40 minutes thereafter, the said person again came with a granite stone and threw it on the head of the deceased; that she caught hold of the said person, but he pushed her aside and ran away and that thereafter she went to Kachiguda Police Station and gave Ex.P.1-complaint. She further deposed that she can identify the person, who had thrown the granite stone on the head of the deceased, and accordingly, she identified the accused. In the cross- examination, she stated that she did not state before the police that she caught hold of the accused and he pushed her aside and went away; that prior to the incident, she never saw the accused and that she saw him for the first time in the dock. 8. P.W.4-the Assistant Sub Inspector of Police, Kachiguda Police Station deposed that on the date of occurrence, P.W.1 came to the Police Station and stated that some unknown person threw a stone on her husband and caused head injury; that thereafter himself and P.W.1 went to the scene of occurrence and shifted the injured (deceased) to Osmania General Hospital, where he recorded the statement of P.W.1 under Ex.P.1; that thereafter he returned to the Police Station along with P.W.1 and based on Ex.P.1, registered a case in Crime No.269 of 2006 and issued F.I.R-Ex.P.6 and that he informed about the incident to the Sub Inspector of Police. In the cross-examination, he deposed that on the date of occurrence he was on night duty; that after completing the patrolling duty, when he entered into the Police Station, P.W.1 came to the Police Station by weeping and informed about the incident, and then he immediately rushed to the scene of offence along with P.W.1 and that he recorded the statement of P.W.1 around 3.30 a.m in the Hospital. He also deposed that P.W.1 did not state the descriptive particulars of the accused in the statement recorded under Section 161 Cr.P.C. He admitted that P.W.1 did not state in Ex.P.1 statement that she caught hold of the accused, but he pushed aside her and went away. 9. P.W.5, who took up investigation, recorded the statement of P.W.1, visited the scene of offence along with two mediators, prepared rough sketch of scene of offence under Ex.P.6-A, prepared scene of observation panchanama in the presence of panchas, seized one pair of ladies chappal, one pair of male chappal, one blood stained bed sheet, one granite stone measuring about 10”x10”x5” and got photographed the scene of offence under Ex.P.2. In the cross- examination, he deposed that P.W.1 did not state that she caught hold of the accused and the accused pushed her aside, but she stated that she tried to catch the accused, but he went away. 10. P.W.6, who took up further investigation from P.W.5, deposed that he secured two panchas and in their presence he conducted inquest over the dead body of the deceased at Osmania General Hospital Mortuary and thereafter sent the dead body for post mortem examination. He further deposed that on producing the accused before him by his staff on 19.10.2006 at 20.30 hours, he affected arrest on the confession made by the accused under Ex.P.4 and seized M.O.1. 11. Dr.A.Yadagiri-P.W.3, who conducted post mortem examination over the dead body of the deceased deposed that he found five ante-mortem injuries on the body of the deceased and that the approximate time of death of the deceased was about 3.50 a.m. on 19.10.2006. He issued Ex.P.5-post mortem examination report opining that the cause of death to the best of his knowledge was due to head injury. 12. The evidence of P.W.1 does not disclose that it is the accused, who came to the deceased and P.W.1 in the mid night on the date of occurrence, when they were sleeping and woke up the deceased for providing water. In her evidence, P.W.1 stated that she caught hold of the accused, but he pushed her aside and ran away, whereas in Ex.P.1-statement she stated that she tried to catch the said person, but he ran away. The evidence of P.W.4 discloses that P.W.1 came to the police station and stated that some unknown person threw a stone on her husband, due to which he sustained injury. Further, for the first time P.W.1 stated before P.W.4 that some unknown person inflicted injury on the head of the deceased, but she has not stated with regard to the accused challenging the deceased that he will see his end. 13. From the above, it is clear that the prosecution could not be able to bring home the guilt of the accused beyond all reasonable doubts. 14. In the circumstances, it is highly unsafe to convict the accused relying upon Ex.P.1-statement, which is the basis for registration of the crime. Therefore, the conviction and sentence recorded against the accused are liable to be set aside. 15. Accordingly, the conviction and sentence recorded by the IV Additional Metropolitan Session Judge, Hyderabad in S.C.No.121 of 2007 against the appellant/accused for the offence punishable under Section 302 I.P.C., are set aside and he is acquitted of the said charge. He shall be set at liberty forthwith, if he is not required in any other crime. The fine amount, if any, paid by the appellant, shall be refunded. 16. In the result, the Criminal Appeal is allowed. __________________ A.GOPAL REDDY, J Date 28.07.2011 __________________ RAJA ELANGO, J va