THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1167 of 2007 Dated : 18.04.2011 Between : V.Thirupathi & another …. Appellants-A.1 & 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.1167 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 appellants-A.1 and A.2 questioning the judgment of conviction passed in Sessions Case No.160 of 2007 by the II Additional Sessions Judge (FTC) at Adilabad on 16.07.2007 wherein the appellants were sentenced to undergo rigorous imprisonment for Life and also to pay fine of Rs.5000/- each in default to undergo simple imprisonment for five months for the offence punishable under Section 302 of Indian Penal Code (for short ‘IPC’) and further sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- each in default to suffer simple imprisonment for one month for the offence punishable under Section 201 read with 34 IPC. 2) The case of the Prosecution, in brief, is that the deceased Bapurao is the husband of A.2. A.1 is having illicit contacts with A.2 since five years prior to the occurrence. On coming to know the same, deceased warned them and he also started harassing A.2 physically and mentally and he did not give any scope for A.1 and A.2 to meet again. On 1.5.2005 A.2 went to Utnoor on the plea of Sandy day and there A.1 and A.2 met near Ishwaraiah’s clinic in Utnoor and both of them hatched a plan to commit the murder of the deceased Bapurao. Accordingly on 1.5.2005 night A.2 provided ID liquor to Bapurao and succeeded in making Bapurao to consume liquor in huge quantity. Bapurao had gone to deep sleep. A-2 kept the TV at high volume and started running it. At about 11 p.m. on the same night A.1 came to the house of A.2 at Kothaguda check post and they have pressed the neck of Bapurao and killed him. They took the dead body of Bapurao by packing it in a gunny bag and it was carried by A.1 on his shoulders to Narsimulu hillock. A.2 also had followed A.1 with a kerosene tin. The dead body was kept in bushes and it was set on fire. A.1 throw away the kerosene tin in the nearby bushes and A.2 also went to her house. On 4.5.2005 the dead body was traced out on Narsimulu hillock by PW.6 and it was informed to the villagers. Later PW1 went there and identified the dead body as that of Bapurao. Thereafter they gave a report to the Police. On 13.5.2005 both the accused were apprehended and on interrogation they confessed to have killed Bapurao. Later the accused were sent for judicial remand. 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.12 of 2005 by the Judicial First Class Magistrate, Utnoor. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 302 and 201 read with 34 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 11 and marked Exs.P.1 to P.16 apart from marking MOs 1 to 3. 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 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. 6) Heard the learned counsel for the appellants and the learned Public Prosecutor for the State. 7) P.W.1, who is the brother of the deceased, deposed before the Court regarding identifying the dead body of the deceased and regarding the quarrels of the deceased and the accused concerned. P.W.2, who is also related to the deceased, speaks about the fact of identifying the dead body. P.W.3 is the neighbour of the deceased and the prosecution mainly relied on his evidence and he deposed before the Court that 2 years back on one night he witnessed A.1 and A.2, the appellants herein, carrying one gunny bag on their shoulder. P.W.4 is not an eyewitness to the occurrence. P.W.5, who is the son of the deceased and A.2, speaks about the fact as to what was happened on the date of occurrence. He informed the Court that on the date of incident A.2 provided lot of liquor to his father i.e. deceased and after having the dinner P.W.5 along with his brother and sister went to sleep on the back side of the house and subsequently he heard the high volume of TV. It is his further evidence that during that night, A.1 came to their house and he hidden in an old house situated opposite to their house. 8) P.W.6 is another witness who also deposed regarding witnessing the dead body of the deceased. P.W.7 is the witness to the scene of offence and P.W.8 is the witness to the confession and recovery panchanama. P.W.9 is the doctor who conducted post mortem examination over the dead body of the deceased. P.W.10 is the photographer who deposed regarding the photographs taken by him and P.W.11 is the investigation officer. 9) The entire case of the prosecution is mainly based on circumstantial evidence. The prosecution mainly relied on the evidence of PWs 3 and 5. P.W.3 informed the Court that he witnessed A.1 and A.2 carrying gunny bag on the date of occurrence, but he did not depose anything about the contents of the gunny bag. 10) Learned counsel for the appellants submits that P.W.3 deposed about the appellants carrying gunny bag whereas it is evident from the evidence adduced by the other witnesses and also from the case of the prosecution that the dead body was covered in a blanket and the same was thrown in the place where the dead body was found. Hence, the evidence of P.W.3 is highly improbable and unacceptable. 11) As far as the evidence of P.W.5 is concerned, he is the son of A.2 and the deceased, and he improved his evidence in the Court from the statement recorded by the investigating officer. Even according to P.W.5 he has not witnessed the deceased and the accused together on the date of incident. The said evidence of PWs 3 and 5 is not clinchingly pointing towards the commission of crime by the accused concerned. 12) It is now well settled 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.” 13) In the absence of any other corroborative evidence adduced by the prosecution, this Court is of the view that it is 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 appellants-accused by adducing any clinching evidence connecting them with the crime. 14) In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellants by the learned II Additional Sessions Judge (FTC) at Adilabad in Sessions Case No.160 of 2007 on 16.07.2007 for the offence punishable under Sections 302 and 201 read with 34 of Indian Penal Code are hereby set aside and they are acquitted for the said offences. Consequently, the appellants are set at liberty forthwith, if they are not required in any other case. The fine amount paid by the appellants, if any, shall be returned to them. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 18th April, 2011 sur [1] AIR 1990 Supreme Court 79