THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1376 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment, dated 26.04.2007, passed by the Special Judge for SC & ST (Prevention of Atrocities) Act, Kurnool in S.C.No.347 of 2006, whereunder and whereby the appellant/A.1 was found guilty of the offence under Section 302 I.P.C., and was convicted therefor and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default, to suffer simple imprisonment for two months. 2. The brief facts that are necessary for the disposal of this case are as follows: One Chenchu Uttaluri Guravaiah (hereinafter referred to as ‘the deceased’) was a resident of Chenchu Colony of Velgode Village. About two years prior to his death, the deceased married A.2, who is the sister of Chenchu Chigulla Golusugadu-P.W.1. One year thereafter, the deceased went to Gajulapalli Village for eking out his livelihood. During the absence of the deceased in the village, A.2 developed illicit intimacy with A.1 and they lived together for about seven months. About 10 days prior to the death of the deceased, the deceased returned to Chehchu Colony and on his arrival A.2 left A.1 and came back to live with the deceased. While so, on 12.10.2005, P.W.1, P.W.2, who is the wife of P.W.1, the deceased and A.2 went to forest for collecting bamboo sticks. After collecting the bamboo sticks, they tied them into bundles and sat under a tree for taking rest. At about 5.00 p.m., A.1 came there and shot an arrow at the deceased and the said arrow pierced into the chest of the deceased causing bleeding injury, due to which, the deceased fell down and died on the spot. Then the accused shot arrows at P.Ws.1 and 2 also. But they escaped and ran into forest. The accused threatened them that he would kill them if they inform the incident to anybody. Then, the accused pulled back the arrow from the body of the deceased and escaped from the scene of offence along with A.2. Due to fear, P.Ws.1 and 2 hide themselves in the forest for about four days and on 18.10.2005 they came back to the village and informed the incident to P.W.3, who is the mother of the deceased. On that P.W.3 took P.Ws.1 and 2 to the police station. On the same day at 7.30 a.m., based on the statement given by P.W.1, the police registered a case in Crime No.88 of 2005 under Section 302 I.P.C., and thereafter, the Inspector of Police took up investigation. On 18.10.2005, on the instructions of the police, the relations of the deceased went in a tractor to the place of incident, which is situated in interior forest and brought the dead body of the deceased to Gattu Thanda, where inquest was held. P.W.8-the doctor, who conducted post mortem examination over the dead body of the deceased, opined that the deceased died due to shock and hemorrhage at about 5 to 6 days prior to the post mortem examination. On 11.11.2005 at 10.30 a.m., near Gattu Thanda, the Inspector of Police arrested A.1 and seized the crime weapon (the arrow and bow) under the cover of panchanama. A.2 was arrested on 16.11.2005 at 11.00 a.m., near Elementary School in Chenchu Colony. During the course of investigation, it came to light that A.1 killed the deceased on the instructions of A.2 by using arrow and bow and therefore, charge sheet was filed against them under Section 302 r/w 34 I.P.C. 3. To substantiate its case, the prosecution examined Chenchu Chigulla Golusugadu, who is an eyewitness to the occurrence and the author of the FIR, as P.W.1; Smt. Chenchu Chigulla Golusamma, who is the wife of P.W.1, and who also witnessed the incident, as P.W.2; Smt.Bayamma, who is the mother of the deceased, as P.W.3; Chencu Uttaluri Guruvadu, who is the brother-in-law of the deceased, as P.W.4; Bekkam Chalapathi Reddy, who is the Panchyat Secretary of Velgode and who acted as panch witness for the inquest and seizure panchanama, as P.W.5; Wdharu Vijaya Mohan Reddy, the Assistant Panchayat Secretary of Velgode, who acted as panch witness for inquest and seizure panchanama, as P.W.6; Atchita Anjaneyulu, who is the panch witness for the arrest of the accused, as P.W.7; Dr.Smt.Lakshmikantham, who conducted autopsy over the dead body of the deceased, as P.W.8 and P.Arohana Rao, the Sub Inspector of Police, who recorded the statement of P.W.1, registered the case and held inquest over the dead body of the deceased, as P.W.9. The prosecution got marked Exs.P.1 to P.5, apart from M.Os.1 and 2. After the closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C so as to enable them to explain the incriminating circumstances appearing against them. The accused denied the allegations and pleaded not guilty. However, no oral or documentary evidence was adduced on behalf of the accused. On the basis of the evidence adduced by the prosecution witnesses, more particularly the evidence of P.Ws.1 and 2, who claim to be the eyewitnesses to the occurrence, and also relying on the evidence of the doctor-P.W.8, who conducted postmortem examination over the dead body of the deceased, the learned Sessions Judge decided the issue that the death of the deceased was homicidal in nature and accordingly, convicted and sentenced the appellant-A.1 as stated supra, while acquitting A.2. Heard the learned counsel for the appellant as well as the learned Additional Public Prosecutor. P.W.1, who is the brother of A.2, deposed before the Court that on the date of offence, while himself, his wife, A.2 and the deceased were in forest, A.1 came there and shot an arrow at the deceased, which hit on the left side of the chest of the deceased. Then, A.1 shot arrow at him (P.W.1) and P.W.2 and therefore, they ran away. Then, A.1 took away A.2 along with him. After the accused left the scene of offence, they came back and saw the deceased died. He further deposed that while leaving the place of occurrence, A.1 pulled the arrow from the body of the deceased and took it along with him and he threatened them that if they disclose the incident to any one, he would kill them. Even though the said evidence was supported by P.W.2, who is the wife of P.W.1, in the cross examination when the Court asked her as to what was the time then, P.W.2 stated that it was 10.00 a.m though it was 1.00 p.m, which clearly indicates that she was not even in a position to inform the Court the correct time of occurrence. However, the learned Sessions Judge relied upon the evidence of P.Ws.1 and 2, and failed to appreciate the submissions of the appellant. P.W.8-doctor, who conducted autopsy over the dead body of the deceased, found the following external injuries: 1. A punctured wound of 1½ x ½” deep to the left chamber of the heart present, over the left side of chest i.e., left 4th inter costal space, the point meeting at the anterior axallary line on left side. On dissection, she found muscles were congested underlying the lung and heart was punctured. 2. A punctured wound of size 1 ½ x ½” deep to the later side left chamber of the heart. On dissection, she found intercostals muscles were punctured. No fracture of the intercostals ribs on the left side noticed. Lung parenchyma and left side of the heart were injured. She issued Ex.P.4-Post Mortem Certificate opining that the deceased died due to shock and hemorrhage at about 5 to 6 days prior to post mortem examination. The natural conduct of the persons may vary from one person to another, but at the same time, the act of the witnesses should be appreciateable in the prudent manner. In the present case, P.Ws.1 and 2 categorically stated that A.1 is the person who shot the arrow towards the deceased; that they left the place afraid of the accused and that the accused also ran away from the place of occurrence. But the said witness failed to explain before the Court below as to what prevented them from informing the same immediately to the elders of the village or to the Investigating Agency. Further, it is the evidence of P.Ws.1 and 2 that on the next day of the incident also they visited the place of occurrence and saw the dead body of the deceased and that they stayed in the forest for four days. But, P.W.1 lodged the complaint after a lapse of six days, and there is no explanation for such inordinate delay. The delay itself is not fatal to case of the prosecution, but at the same time unexplained delay is fatal to the case of the prosecution, since it causes prejudice to the accused person. Further, even though P.Ws.1 and 2 deposed before the Court that the accused is the person who shot arrow on the deceased, they were not in a position to identify the dead body of the deceased after recovery of the same from the forest. Further, it is unfortunate that even after receipt of the complaint, the Investigating Officer failed to visit the place of occurrence, for which P.W.9-the S.I of Police gave an explanation stating that since the place of occurrence is a deep forest, on the instructions of his superior officers, he sent the witnesses and mediators to the place of occurrence, which in our view, is unknown to law. The procedure to be followed by the Investigating Officer is that on receipt of information, it is the prime duty of the Investigating Officer to visit the place of occurrence to ascertain the nature of offence committed and also to collect the evidence, if any, available at the place of occurrence. Further, none of the prosecution witnesses identified the dead body as that of the deceased. Even though the prosecution proved that the death was homicidal in nature, it is the duty of the prosecution to connect the accused with the said crime. In the present case such a link is totally missing. Further, the prosecution has also miserably failed to establish the guilt of the appellant. Even though it was stated that the Investigating Officer arrested the accused and recovered the arrow from the possession of the accused, but the said Investigation Officer was not examined, for which no explanation is given by the prosecution. In the absence of any admissible evidence adduced by the prosecution, merely relying on the evidence of P.Ws.1 and 2 and P.W.8, and mere establishing the fact that a person was shot to death and the death is homicidal is nature, which itself is not warranting a conviction against the person, this Court is of the view that the prosecution miserably failed to connect the appellant with the crime. Hence, the conviction and sentence imposed against the appellant/A.1 is liable to be set aside and the appellant is entitled to acquittal. Accordingly, the conviction and sentence recorded by the Special Judge for SC & ST (Prevention of Atrocities) Act, Kurnool in S.C.No.347 of 2006 against the appellant/A.1 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. In the result, the Criminal Appeal is allowed. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Date 21.06.2011 va