THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO Crl.A.Nos.193, 1431 of 2008 and 176 of 2009 Date of Judgment: 23-11-2011 CT in Crl.A.No.193 of 2008 Between: Shaik Saida Khasim (A3) ..Appellant and State of A.P. rep. by PP, High Court of A.P., Hyderabad ..Respondent The Court made the following Common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO Crl.A.Nos.193, 1431 of 2008 and 176 of 2009 Common Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. Crl.A.No.193 of 2008 by A3 and Crl.A.No.176 of 2009 by the State against the conviction and acquittal of A1, A2, and A4 in S.C.No.581 of 2005 respectively; whereas Crl.A.No.1431 of 2008 by A5, as the case against him was split up and tried in S.C.No.185 of 2007, against his conviction are heard together and disposed of by this common judgment. 2. The case of the prosecution unfolded during the course of trial may, briefly, be stated as under: 3. The deceased and A1 are brothers. P.W.2 is their mother and P.W.3 is their brother. P.W.1 is the wife of the deceased—Bharatha Ravi. In the year 1992, there was partition of joint family properties between the deceased and his brothers. In the year 1996, A1 started cloth business in Suryapet and subsequently he became insolvent and left the place. In the year 1999, the deceased started the cloth shop in the same premises. A1 picked up quarrel with the deceased for running the cloth shop. The village elders settled the dispute by instructing the deceased to pay a sum of Rs.7,00,000/- to A1. Accordingly, the deceased paid an amount of Rs.5,00,000/- and promised to pay the balance amount of Rs.2,00,000/- at the time of marriage of A1’s daughter. Later, about two months prior to the incident the deceased paid the balance amount of Rs.2,00,000/- to A1. Two days prior to the incident, A1 asked the deceased Rs.20,000/-, but the deceased refused to give. For which A1 grew wild and threatened the deceased with dire consequences. On the date of incident i.e. on 31-05-2004 after dropping P.W.1 at the house when the deceased reached near Ram Mandiram, three unknown persons got down from an auto and attacked the deceased with knives. Thereafter, the deceased was shifted to Government Area Hospital, Suryapet. P.W.1 lodged a report—Ex.P1 against A1. 4. On receipt of Ex.P1—report, P.W.16—Sub Inspector of Police, Suryapet on 31-05-2005 registered a case in Cr.No.136 of 2004 and issued FIR—Ex.P11. Further investigation was taken up by P.W.17— Circle Inspector of Police, who visited the scene of offence; prepared observation report and rough sketch—Exs.P12 and 13 respectively and during the course of investigation he seized two knives from the scene and held inquest over the dead body of the deceased marked as Ex.P14. On 01-06-2004, on receipt of a requisition from police, the Civil Assistant Surgeon, Area Hospital, Suryapeta—P.W14 held autopsy over the dead body of the deceased and opined that cause of death was cardio respiratory failure due to multiple cut injuries. Ex.P9 is the post mortem report. P.W.17 arrested A1, A3 and A4 on 01-07- 2004 and at the instance of A1 cell phone—M.O.3; at the instance of A3 and A4 two knives—M.Os.4 and 5 were recovered covered under Ex.P15 to P17. A4 was referred to hospital for his injuries. Ex.P19 is the wound certificate. 5. On a requisition, P.W.15—Junior Civil Judge, Nakkrekal held test identification parade on 17-07-2004, wherein P.Ws.1 and 8 identified A3. Ex.P10 is the test identification proceedings. On receipt of all the relevant documents and on completion of investigation the successor of P.W.17—Uttam Kumar filed the charge sheet. 6. The learned Magistrate took the charge sheet on file as P.R.C.No.83/2005 and after following the procedure under law committed the case to Court of Sessions. The Principal District and Sessions Judge, Nalgonda has taken the charge sheet on file as S.C.No.581/2005 and made over the same to II Additional Sessions Judge, Nalgonda at Suryapet for disposal in accordance with law. The case against A5 was split up and numbered as S.C.No.185 of 2007. On appearance of the accused, the learned Sessions Judge on due consideration of material on record and after hearing the learned Additional Public Prosecutor and also the learned counsel for the accused framed one charge under Section 302 r/w 34 IPC against A1 to A5, to which they pleaded not guilty and claimed to be tried. 7. Bharatha Soujanya and Bharatha Kousalya were examined as P.Ws.1 and 2 in both the cases, whereas Vempati Suresh—P.W.10, Anthati Ramulu—P.W.11; E.Srinivas Reddy—P.W.16; Dr.J.Madhavi— P.W.14; D.Ravindra Sharma—P.W.15 and M.Yadaiah—P.W.7 in S.C.No.581 of 2005 were examined as P.W.4, P.W.5, P.W.8, P.W.9, P.W.10 and P.W.11 respectively in S.C.No.185 of 2007. P.Ws.3, 4, 5, 6, 7 in S.C.No.185 of 2007 were declared hostile. Similarly, P.Ws.2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 in S.C.No.581 of 2005 were declared hostile, as they have supported the case of the prosecution. 8. Sri T.Bali Reddy, learned senor counsel appearing for the appellant—A5 in Crl.A.No.1431 of 2008 contends that conviction based on solitary witness—P.W.1 without any corroboration cannot be sustainable. The test identification parade held by the Magistrate is purely manipulated and arranged by the police. The alleged seizure of knife—M.O.1 from the possession of the appellant—A5 could not incriminate him in any manner. 9. Sri C.Praveen Kumar, learned counsel appearing for the appellant—A3 in Crl.A.No.193 of 2008 contends that conviction cannot be based on sole testimony without any corroboration. P.W.1 is not an eyewitness to the incident. In the report—Ex.P1, P.W.1 has mentioned only names of four persons, but the prosecution filed the charge sheet against five persons. Except the evidence of P.W.1, there is no other evidence to convict the accused—A3. 10. Per contra, learned Public Prosecutor sustained the conviction and contends that ingredients to constitute the offence punishable under Section 302 r/w 34 IPC are made out to convict the accused—A3 and A5. 11. In the light of the above submissions, the only point that arises for consideration in these appeals is: “Whether the conviction and sentence recorded by the learned Sessions Judge is liable to be interfered or modified?” 12. P.W.1 stated that she deposed in S.C.No.581 of 2005 that she can identify one person out of three persons and she identified A3 only. Whereas when she examined in S.C.No.185 of 2007 she stated that out of three persons A5 is one of them and armed with a sword. She agreed that she has no acquaintance with A5 prior to the incident and after the incident she saw him in the court hall. Whereas in Ex.P1 —report she has stated four unknown miscreants came in an auto one of them was driving the auto and other three with large swords attacked her deceased husband, stabbed him and fled away from the lane behind her house. She learnt that the miscreants who killed the deceased thrown the swords in the lane behind her house at some distance, probably her husband’s elder brother—Bharatha Venkateswarlu (A1) made to kill her husband by engaging professional killers. She improved her version in the Court that she identified A3 in S.C.No.581 of 2005. When she examined as P.W.1 in S.C.No.185 of 2007, she stated that out of three persons, A5 one among them. P.W.17 apprehended A1, A3 and A4 and in pursuance of confessional statement of A1, he sized cell phone—M.O.3 from A1. In pursuance of confessional statement of A3, he seized M.O.4—knife from his possession. As per the confessional statement of A4, M.O.5—big knife was recovered which is marked as Ex.P17, which is contrary to the report—Ex.P1 wherein P.W.1 stated that swords were thrown in the lane behind her house. No doubt, the evidence in one Sessions Case cannot be relied in another Sessions Case either for conviction or for acquittal. The fact remains that evidence of P.W.1 is not in corroboration with any other evidence. She goes on improving her version and absolutely there is no legal evidence to convict the accused—A3 and A5 for the offence they stood charged. Therefore, it is unsafe to convict the accused—A3 and A5 with the scanty evidence and they are entitled for acquittal. In view of the same, the conviction and sentence recorded against A3 for the offence punishable under Section 302 r/w 34 IPC in S.C.No.581 of 2005, dated 29-01-2008 by the II Additional Sessions Judge, Nalgonda at Suryapet; and the conviction and sentence recorded against A5 for the offence punishable under Section 302 r/w 34 IPC in S.C.No.185 of 2007, dated 29-08-2008 passed by the II Additional Sessions Judge, Nalgonda at Suryapet are set-aside and they are acquitted of the said charges. The appellant/A-3 in Crl.A.No.193 of 2008 and the appellant/A5 in Crl.A.No.1431 of 2008 shall be set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellant/A3 shall be refunded to him. In the result, Crl.A.No.193 of 2008 filed by A3 and Crl.A.No.1431 of 2008 filed by A5 are allowed and consequently Crl.A.No.176 of 2009 preferred by the State is dismissed. _________________ A.GOPAL REDDY, J. _______________ R.KANTHA RAO,J. 23-11-2011 Murthy