THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1377 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellant/accused, who was tried for the offence under Sections 302 I.P.C in S.C.No.199 of 2006 by the XI Additional District & Sessions Judge (Fast Track Court), Guntur at Tenali, was found guilty of the said offence, convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months, by judgment dated 10.07.2007. Challenging the said conviction and sentence recorded against him, the appellant filed this appeal. 2. The case of the prosecution, in nutshell, is as under: The deceased and the accused are the residents of Kaithepalli Village. All the material prosecution witnesses are also residents of the same village. The deceased was having three daughters. P.W.1 is the mother, P.W.2 is the wife and P.W.4 is the eldest daughter of the deceased. P.W.3 is the relative of the deceased. Two years prior to the incident, during summer vacations, P.W.4, who was studying Intermediate I year, came to Kaithepalli Village to spend for few days with her parents. While so, on 09.06.2004, the accused kidnapped P.W.4. In that connection a case in Crime No.20 of 2004 was registered against the accused for the offence under Section 366(A) I.P.C by the Tsodayapalem Police Station. The accused was arrested on 05.08.2004 and charge sheet was filed on 22.09.2004. Finally, the said case was ended in acquittal, by the Additional Sessions Judge, Tenali in S.C.No.625 of 2004. During the trial of the said case, the accused tried to compromise with the deceased, but the deceased did not accept. Since then, the accused developed grudge against the deceased and several times he expressed his intention in public that he would do away the life of the deceased. Due to the fear of the accused, the deceased kept his younger daughter with P.W.1 and sent P.W.4 and another daughter to their relative’s house at Hyderabad to do works. The deceased along with his wife-P.W.2 migrated to Chintalapudi Village of Ponnur Mandal eking out his livelihood by doing coolie works. Now and then the deceased used to visit Kaithepalli to see his daughter and mother-P.W.1 and similarly to Hyderabad to see his two other daughters. While so, in the early morning of 27.11.2005, the deceased made a phone call to P.W.1 and informed that he is coming to Kaithepalli from Hyderabad to see the family members. The deceased did not turn up on 27.11.2005 and also on 28.11.2005 morning. On 28.11.2005, the villagers informed P.W.1 that the deceased was lying in the fish tank of the village. Then P.W.1 and the younger daughter of the deceased rushed to the spot and found the dead body of the deceased. P.W.1 noticed injuries on the back of the head of the deceased and she passed on a message to the wife of the deceased and their relatives. Thereafter, at about 12.00 Noon, P.W.12-Sub Inspector of Police of Tsodayapalem Police Station received a report under Ex.P.1 from P.W.1. Based on the said report, P.W.12 registered a case in Crime No.22 of 2005 for the offence under Section 302 I.P.C. On the same day at 12.45 p.m., P.W.13, C.I of Police, who took up investigation, visited the scene of offence, prepared scene observation report-Ex.P.6, prepared rough sketch of scene of offence-Ex.P.21, conducted inquest over the dead body of the deceased in the presence of P.W.10 and another, and thereafter sent the dead body for post-mortem examination. He seized M.Os.6 to 11 at the scene of offence. P.W.11-the Civil Assistant Surgeon of Government Hospital, Repalle conducted autopsy over the dead body of the deceased and issued Ex.P.9-post mortem certificate opining that the cause of death of the deceased was Neurogenic Shock due to brain and skull damage and rupture of spinal card. On 07.12.2005, the accused surrendered before P.W.10-Panchayat Secretary of Nallurupalem Grampanchayat of Repalle Mandal and confessed about his guilt. P.W.10 recorded the confessional statement of the accused under Ex.P.7 and handed over the accused along with Ex.P.7 to P.W.13. On the same day at about 2.15 p.m., P.W.13 interrogated the accused and recorded his confessional statement under Ex.P.8 and then arrested the accused and sent him for remand. After completion of investigation, he filed charge sheet. 3 . On committal, the learned District & Sessions Judge, Guntur numbered the case as S.C.No.199 of 2006 and made over the same to III Additional Sessions Judge, Guntur for disposal. The III Additional Sessions Judge, Gutur transferred the same to XI Additional District & Sessions Judge, F.T.C., Guntur at Tenali. On such transfer, the learned Sessions Judge framed 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 the accusation made against the accused, the prosecution examined as many as 13 witnesses and got marked 22 documents, besides material objects 1 to 11. 5. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to incriminating material made against him by the prosecution, which he denied. Though none were examined on behalf of the accused, Exs.D.1 to D.8-contradictory statements of P.Ws.1, 2, 3 and 6 were marked. 6. The learned Sessions Judge, after appreciation of the oral and documentary evidence, particularly the evidence of P.Ws.3 and 6 found the accused guilty of the offence under Section 302 I.P.C, and accordingly, convicted and sentenced him as aforementioned. 7. Smt.A.Gayathri Reddy, learned counsel appearing on behalf of the appellant/accused strenuously contended that the entire case of the prosecution case rests upon the circumstantial evidence and therefore the chain of events have to be established to prove the guilt of the accused. She also contended that P.W.6, who has last seen the accused and the deceased in the same bus, deposed that both the accused and the deceased got down the bus at Kaithepalli at 11.00 p.m., on 27.11.2005 and thereafter he came to know that the deceased was murdered. She further contended that even though P.W.10, who has recorded the extra judicial confession made by the accused under Ex.P.7, actively participated in the investigation and acted as mediator from the beginning of the investigation, the confession statement recorded by him under Ex.P.7 is unbelievable since the same was made by the accused when P.W.10 was at the Office of Mandal Revenue Officer, Repalle. If Ex.P.7 is excluded, there is no other evidence to connect the accused with the commission of the offence. Therefore, the appellant is entitled to acquittal. 8. On the other hand, the learned counsel representing the learned Public Prosecutor sought to sustain the judgment under appeal and contended that the evidence of P.W.3 shows that the accused was seen at Repalle in the evening time and the same was supported by the evidence of P.W.6. He further contended that since P.W.10 was In- charge Secretary of Kaithepalli, it is possible that the accused confessed before him under Ex.P.7, and therefore, the conviction and sentence recorded against the accused do not call for any interference. 9. P.W.1, who is the mother of the deceased deposed that two years prior to the incident P.W.4, the eldest daughter of the deceased was kidnapped by the accused and in that connection a crime was registered against him; that the said crime was ended in acquittal; that during the trial of the said case, the accused proposed to compromise with the deceased but the same was not accepted by the deceased, and therefore, the accused developed grudge against the accused and several times he expressed his intention in public that he would do away the life of the deceased; that due to fear of the accused, the deceased kept his younger daughter-Laxmi with her and sent P.W.4 and another daughter to their relatives house at Hyderabad; that the deceased also migrated along with his wife to Chintalapudi Village of Ponnur Mandal; that the deceased used to visit their village to see her as well as his daughter Lakshmi; that the deceased also used to visit Hyderabad to see his two other daughters; that in the early morning of 27.11.2005 the deceased made a phone call to her and informed that he is coming to Kaithepalli from Hyderabad to see them; that the deceased did not turn up on 27.11.2005 and also on 28.11.2005 morning; that on receiving information from the villagers that the dead body of the deceased was lying in the fish tank of their village, herself and Lakshmi rushed to the spot and saw the dead body of the deceased and that she passed on message to the wife and remaining children of the deceased and also their relatives. Thereafter, she lodged Ex.P.1-report. 10. P.W.3, who is an Ex-Serviceman and who is a resident of Kaithepalli Village deposed that on 27.11.2005 he has seen the accused at Repalle in the evening time when he went there on personal work and that by the date of death, the deceased was residing at Chinthalapudi eking out his livelihood by doing coolie work. He further deposed that he has also attested on the inquest report-Ex.P.2. In the cross-examination he admitted that he did not state before the police as in Ex.D.5 to the effect that he had a talk with the accused and the accused observed him. 11. P.W.4, who is the elder daughter of the deceased, and who is said to have been kidnapped by the accused in the year 2004, deposed that on 25.11.2005 the deceased came to Hyderabad to see them; that on 27.11.2005 the deceased started in a train to go to Kaithepalli Village to see her sister and P.W.1; that on 28.11.2005 they received a phone call that his father was murdered at Kaithepalli. 12. P.W.6, who is a resident of Kaithepalli Village deposed that he boarded R.T.C Bus at Repalle to go to Bondalagaruvu Village, which is situated after crossing Kaithepalli; that he also noticed that the deceased and the accused boarded in the same bus; that there was a quarrel between the accused and the deceased and the accused threatened the deceased that he will kill him; that both the accused and the deceased got down from the bus at Kaithepalli Village at 11.00 p.m and that on the next day he was informed that the accused murdered the deceased. During the course of cross-examination, he admitted that he did not state before the police as in Ex.D.6 to the effect that he advised both the deceased and the accused not to quarrel each other as the cases between them were disposed of and that he also admitted that he did not state before the police as in Ex.D.7 to the effect that three persons including the deceased and the accused got down the bus at cross road. 13. P.W.10, who was the In-charge Secretary of Kaithepalli Village at the time of occurrence, and before whom the accused made confession, deposed that he acted as one of the mediators along with the Village Sarpanch when the police inspected the scene of offence; that he attested Ex.P.2-inquest report and Ex.P.6-scene of offence observation report; that on 07.12.2005 the accused surrendered before him while he was present at the Office of Repalle Mandal Revenue Officer and confessed that he murdered the deceased; that he recorded the confession statement under Ex.P.7 and handed over the said confession statement along with the accused to the C.I of Police. 14. P.W.13, who is the Inspector of Police, Repalle and who took up investigation deposed that on receipt of copy of F.I.R, he visited the scene of offence in the presence of mediators and that on 07.12.2005 at 2.15 p.m., P.W.10 produced the accused before him along with Ex.P.7-confessional statement in the presence of mediator. In the cross-examination he admitted that there are three or four houses situated by the side of the road in front of bus stop and the scene of offence; that he did not examine the owners of those houses; that as per Ex.D.7, three persons including the accused and the deceased got down from the bus and that M.O.6 is the pieces of stick, who were seized from the scene of offence. 15. P.W.11 is the Civil Assistant Surgeon, Government Hospital, Repalle, who conducted post mortem examination over the dead body of the deceased. He deposed that he found two lacerated injuries and one abrasion over the dead body of the deceased. He issued Ex.P.9- post mortem certificate opining that the death was about 36 hours prior to his examination and the cause of death. 16. Admittedly, the incident took place in the night time on 27.11.2005 and the dead body of the deceased was found on the next day i.e., 28.11.2005. There is no direct evidence to substantiate the case of prosecution and the entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others[1]: “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.” 17. Further, motive by itself is not sufficient to prove the guilt of the accused. 18. Keeping in view the above judgment, the extra judicial confession made by the accused before P.W.10 under Ex.P.7 cannot be believed since the same has not been recorded in the verbatim language as stated by the accused. The extra judicial confession do not inspire confidence as the statements made by the witnesses to the inquest report, to which P.W.10 is a party have been reproduced to major extent. In view of the same, the extra judicial confession is disbelieved. Then there remains only the evidence of P.W.6. 19. According to P.W.6 the accused and the deceased travelled in the same bus and got down at Kaithepalli Village. But, mere travelling the accused and the deceased in the same bus would not show that the accused murdered the deceased. The prosecution failed to prove as to how the accused was having knowledge about the deceased starting from Hyderabad to Kaithepalli. Further, it is not the case of the prosecution that the accused was waiting for an opportunity and closely watching the movements of the deceased. In view of the same, and since the link is missing to connect the accused with the commission of the offence, we are of the view that it is unsafe to convict the accused based on the evidence of P.W.6. 20. Accordingly, the conviction and sentence recorded by the XI Additional District & Sessions Judge (Fast Track Court), Guntur at Tenali in S.C.No.199 of 2006 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. 21. In the result, the Criminal Appeal is allowed. __________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J Date 20.07.2011 va [1] AIR 1990 Supreme Court 79