THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1445 of 2007 Dated : 28.06.2011 Between : Sakapuram Bakkaiah @ Mallesham …. Appellant-accused 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.1445 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- accused questioning the judgment of conviction passed in Sessions Case No.1012 of 2006 by the III Additional Sessions Judge, Karimnagar, on 31.08.2007 wherein the appellant was convicted under Section 235 (2) Cr.P.C. and sentenced to suffer imprisonment for life and also to pay fine of Rs.1,000/-, in default to suffer simple imprisonment for three months, for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’) and was further sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 506 IPC. 2) The case of the Prosecution, in brief, is that the deceased Devaraneni Satyanarayana Rao is the tenant in the house of the sister-in-law of the accused. About five years prior to the incident in the present case, deceased purchased two guntas of house site from the sister-in-law of the accused, who adopted the son of the accused since she has no issues, due to which, accused felt that the deceased would slowly buy the rest of the property of his sister-in-law and his son may not get any property. Under such impression, accused threatened the deceased to vacate the house of his sister-in-law or else would kill him. In spite of the same, deceased did not vacate the house and was trying to build a house in the site purchased by him from the sister-in-law of the accused. On coming to know the same, accused grew wild against the deceased and decided to do away his life. While so, the deceased decided to place ‘muggu’ to start construction by calling a ‘Pandit’ on 09.03.2006. On the same day, at about 10.00 a.m., the accused took the deceased to 8th Incline Colony in the auto of one Rajesham on the pretext of getting a ‘Pandit’, but he took the deceased to a mutton shop at 8th Incline Colony luring the deceased to have a liquor party and he purchased two kgs of mutton and got the same packed in two packets and made the deceased to believe that the he was really arranging a party. From there, the accused took the deceased to Brandy shop at Mangalapalli (V) in the same auto where the accused took whisky and both they consumed the whisky. From there, accused took the deceased to Peddampet bus stage at around 1200 hours where the accused asked the auto driver to wait for ½ an hour saying that they would get some iron scrap from the nearby Eucalyptus trees and then the accused took the deceased to the back side of the said trees where both they again consumed whisky. As the deceased was in fully drunken condition, accused made him to lay on the ground, picked up a big stone and thrown on the head of the accused and killed him on the spot. Later, the accused alone came back to the auto, upon which, the auto driver questioned the accused about the deceased, for which, the accused told him that he committed murder of the deceased since he had disputes with the deceased and the accused also threatened the auto driver at the point of knife not to disclose the same to anybody. Thereafter, the auto driver along with his friend went to the husband of Sarpanch of Sripuram at Dubbapalli and informed about the offence committed by the accused. On the advise of the husband of the Sarpanch, the auto driver informed the incident to the son of the deceased, who in turn lodged a complaint before the Police. Basing on the above said complaint, Police registered a case in Crime No.32 of 2006 for the offence punishable under Sections 302 and 506 of Indian Penal Code. 3) The investigation agency after completion of entire investigation and receiving necessary certificates filed charge sheet against the accused for the offence punishable under Sections 302 and 506 IPC and the said charge sheet was numbered as P.R.C. No.29 of 2006 by the Judicial Magistrate of First Class, Manthani. 4) On committal of said P.R.C., the Court of Sessions registered the same as S.C.No.1012 of 2006. The learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 506 IPC, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 6 and marked Exs.P.1 to P.13 apart from marking MOs 1 to 6. After closure of Prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied the incriminating evidence put to him available in the evidence of Prosecution witnesses. Accused did not choose to adduce any oral and documentary evidence on his behalf. After hearing the arguments on both sides and on appreciation of entire evidence, the learned Sessions 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) The entire prosecution mainly rests upon the evidence of PWs 2, 3, 7 and 8. Hence, it would be suffice to scrutinize the evidence adduced by those witnesses only. 8) P.W.2 is the wife of the deceased, who deposed that on the fateful day accused came to their house and the deceased accompanied the accused at the request of the accused for contacting a Pandit to conduct Bhoomi Pooja. The said evidence was introduced by the prosecution to establish the fact that the deceased accompanied the accused prior to the commission of crime. 9) P.W.3, who is an auto driver, saw the deceased and accused together on 09.03.2006, and according to him they boarded his auto and he was asked to take them to 8th Incline Colony. He also deposed that he was asked to stop the auto near a mutton shop where the accused and deceased purchased each 1 kg mutton and then again boarded the auto. From there, they proceeded to a brandy shop where they purchased whisky and consumed it nearby the shop. The witness also stated that as per the directions of the accused, they proceeded to the place where the occurrence took place and further informed that he was asked by the accused to wait in that place. Then the accused and the deceased proceeded to the nearby trees. After ½ an hour, accused returned alone and when the witness asked him about the deceased, accused informed him that he killed him and also threatened the witness not to inform the incident to any others and if it is informed he will also kill him. The witness further stated that he informed the incident to the husband of the Sarpanch and also the family members of the deceased and later he went to the Police Station and informed the same. The said witness was relied by the Prosecution to establish the fact of witnessing the deceased and accused together prior to the occurrence. 10) P.W.7 is the mutton shop owner deposed that accused and the deceased along with P.W.3 visited the shop between 11.30 a.m. and 12.00 noon, purchased mutton and the accused undertook to pay the amount later. In the same lines, P.W.8, who is the person working in the Brandy shop, deposed about the visit of the deceased and accused on the date of incident, purchasing a bottle of whisky and consuming the same nearby the shop. Prosecution relied on the evidence of these two witnesses i.e. PWs 7 and 8 to establish its case that both the deceased and accused visited certain places prior to the occurrence. The above said evidence adduced by the prosecution was believed by the trial Court and accused was convicted as stated above. 11) The learned counsel for the appellant-accused submitted the following points for consideration of this Court: a) Ex.P.1 complaint lodged by P.W.1, who is the son of the deceased, runs into pages, which contain each an every part of the incident from morning to the occurrence. The said complaint cannot be treated as complaint since it is hit by Section 162 Cr.P.C. and also it is in the nature of hearsay evidence. b) P.W.2 cross-examination was not considered by the trial Court and in the said cross-examination P.W.2 has stated regarding the quarrel between the deceased and the accused on the said date. When such an occurrence took place, the deceased accompanying the accused is doubtful. c) Introduction of P.W.3 is most unnatural as he being the driver of a share auto traveled along with these two persons for a long time to the places wherever they wanted to go. Further, his conduct on receipt of information from the accused is also highly doubtful. d) PWs 1, 2 and other witnesses stated that the accused was arrested on the date of occurrence itself whereas the charge sheet reveals that the accused was arrested on 14.03.2006 i.e. five days after the occurrence. 12) Per contra, the learned Public Prosecutor submitted that the evidence of P.Ws 2, 3, 7 and 8 clinchingly establish the presence of the accused with the deceased and P.W.3 accompanied the deceased and the accused on the date of occurrence that too just prior to the occurrence and the Prosecution established its case beyond reasonable doubt without any break in the chain of incident. 13) We perused the entire material on record and also heard both sides. 14) Admittedly, Ex.P.1 complaint was lodged by P.W.1 on the basis of the information given by P.W.3, which contains the entire particulars informed by P.W.3. Admittedly, P.W.1 is not an eyewitness to the occurrence. Further, P.W.1 visited the place of occurrence, identified the dead body and incorporated the information given by P.W.3 in Ex.P.1, which is in the nature of hearsay evidence. As said Ex.P.1 came into existence after investigation started by the Police, it is hit by Section 162 Cr.P.C. 15) Even though P.W.2 stated in her chief examination that the deceased and the accused accompanied on the date of incident for securing a Purohit, in cross examination she has admitted that they engaged a Pandit even prior to the date on which the accused visited the house of the deceased and also on the same date a quarrel took place between the accused and the deceased by 10.00 a.m. If such a quarrel took place between the deceased and the accused in the morning session of the date of incident, it is highly improbable and unbelievable that the deceased accompanied the accused to the places wherever he asked to come. Further, P.W.2 stated that on receipt of information from P.W.3 they visited the scene of offence and took the dead body to the Police Station. The evidence adduced by the said witness does not inspire the confidence of this Court. 16) The conduct of P.W.3 is also highly doubtful. According to him, when he questioned the accused regarding the deceased, the accused informed that he killed the deceased and also he was threatened by the accused. But, the said witness instead of informing the incident to Police, called for the help of his co-auto driver, visited the house of the deceased and informed the same to his family members. Subsequently, he went to Police and informed the incident. Even as per the version of P.W.3, there was no quarrel or any dispute between the deceased and accused while they traveled in his auto. 17) Further, interestingly, P.W.3 is not aware of the fact whether the deceased was actually killed by the accused or not and merely basing on the information given by the accused himself, even without verifying the same, P.W.3 informed the same to the family members of the deceased, to the husband of the Sarpanch and also to the Investigation Officer. 18) Though P.W.7 deposed before the Court that on the date of incident accused and deceased came to his shop in the auto of P.W.3, there is no evidence on record to show that P.W.7 is known to P.W.3 also. 19) From the entire evidence adduced by the prosecution, it is evident that the accused was very much present at the time of arrival of the investigation officer to the place of occurrence and he was under the custody of Police. The F.I.R. was also recorded after visiting the place of occurrence and after identifying the dead body, but whereas it is the case of the Prosecution, as per charge sheet, that the accused was arrested only five days after the occurrence. In these circumstances, the Prosecution has not established its case beyond reasonable doubts and also it has not came with true version. The failure on the part of the investigation officer, who recorded the compliant on the basis of the information given by P.W.3, creates so much of doubt about the genesis of the entire occurrence as projected by the prosecution. 20) Further, in this type of cases, the Supreme Court held that when a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.,[1] wherein at para 10 it was held as follows:- “(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently 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.” 21) In the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that it is highly unsafe to convict the accused that too for an offence under Section 302 IPC, which is punishable with a minimum sentence of life imprisonment. The prosecution failed to establish the guilt of the appellant-accused by adducing any clinching evidence connecting him with the crime beyond all reasonable doubt. 22) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant-accused by the learned III Additional Sessions Judge, Karimnagar, in Sessions Case No.1012 of 2006 on 31.08.2007 for the offence punishable under Sections 302 and 506 of Indian Penal Code are hereby set aside and he is acquitted for the said offences. Appellant-accused 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 28th June, 2011 sur [1] AIR 1990 Supreme Court 79