IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.840 OF 2004 Between: Nukala Kumar @ Golla Kumar & another ..... Petitioners AND The Sate of Andhra Pradesh, Through SHO, I Town, PS, Karimnagar, Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent The Court made the following: JUDGMENT: The Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 05.03.2004, in Sessions Case No.852 of 2002, on the file of the learned IV Additional District and Sessions Judge (Fast Track Court), Karimnagar, whereunder and whereby Accused Nos.1 and 2 were found guilty of the offence punishable under Section 304 Part-II of the Indian Penal Code, 1860 (for short, “I.P.C.”), and accordingly convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years each and to pay a fine of Rs.500/- each, in default to suffer Simple Imprisonment for a period of three months each. 2. The brief facts, that are necessary for the disposal of the present Criminal Appeal, may be stated as follows: Velishetti Ramesh (hereinafter referred to as “deceased”) is a resident of Kapuwada, Karimnagar. P.W.1-Velishetti Swarupa is the sister and P.W.2-Velishetti Ramchandram is the brother of the deceased. On 25.06.2001 at about 9.30 p.m., all the three accused came to the house of P.W.1 and took away the deceased forcibly in an auto which was witnessed by P.Ws.1 and 2. Thereafter, the deceased did not return. The dead body of the deceased was found near the Rythu Bazar at Karimnagar, which was noticed by P.W.3-Subedari Sammaiah. On coming to know about the same, P.W.1 went to Rythu Bazar and saw the dead body of the deceased. Then P.W.1 went to the Police Station and narrated the incident. P.W.10-Assistant Sub-Inspector of Police reduced the statement of P.W.1 into writing, which is marked as Ex.P1 and registered a case. P.W.11-Circle Inspector of Police took up the investigation and visited the scene of occurrence and prepared a Panchanama with regard to the scene of occurrence and seized the incriminating material objects. P.W.11 held inquest on the dead body of the deceased. After inquest, the dead body was subjected to Post-Mortem examination. On 29.06.2001 at abot 5.00 p.m., P.W.11 apprehended Accused Nos.1 and 2 near N.T.R. Statute, Hyderabad, and in pursuance of their confessional statements, certain incriminating material objects have been seized. Those objects have been sent to the Forensic Science Laboratory. After receipt of the report from the Forensic Science Laboratory and Post-Mortem report, the police filed the charge sheet. 3. The learned II Additional Sessions Judge, Karimnagar, framed the following charges against the accused: “Firstly: That you A.1 to A.3, on 25-6-2001 at 9.30 p.m. in Karimnagar town, kidnapped Velishetti Ramesh, with intent to cause him to be secretly and wrongfully confined him, and thereby committed an offence punishable under sec.365 of the Indian Penal Code and within my cognizance. Secondly: That you on or about the same day during the course of the same transaction as mentioned in charge No.1 at Rythu Bazar toddy shop, Karimnagar, with common intention to kill Velishetti Ramesh, did commit murder intentionally (knowingly) caused his death by A.1 stabbed him with a knife, you A.2 caught hold of him and you A.3 assisted them, to wit. As A.1 to A.3 of you not followed the instructions of deceased in committing pick-pocketing offences, due to that deceased threatened and warned you A.1 to A.3, and that you A.1 to A.3 hatched a plan to do away with the life of the deceased, and thereby you committed an offence punishable under sec.302 read with sec.34 of the Indian Penal Code and within my cognizance.” When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P38 besides the case property M.Os.1 to 14. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Ex.D1. 6. The trial Court, upon considering the evidence on record, found Accused Nos.1 and 2 guilty of the offence punishable under Section 304 Part-II I.P.C. and accordingly they were convicted and sentenced as stated above. However, Accused No.3 was found not guilty of the offence punishable under Sections 365 and 302 read with 34 I.P.C. and accordingly he was acquitted. Challenging the same, the present Criminal Appeal is filed by Accused Nos.1 and 2. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the offence punishable under Section 304 Part-II I.P.C. against the appellants herein and whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel appearing for the appellants contended that except one circumstance which would reveal that the deceased was in the company of Accused Nos.1 and 2 at about 9.30 p.m. on 25.06.2001, there is absolutely no evidence to show that the appellants involved in the commission of offence; that the recovery of M.O.1-knife is not shown to be used in stabbing the deceased and blood stained clothes of Accused No.1 cannot lead to an irresistible conclusion that those blood stains were that of the deceased; that the time gap between the last seen circumstance and the time of actual death cannot be said to be close proximate to infer that the accused are the perpetrators of the crime, and therefore, she prays to set aside the conviction and sentence recorded against Accused Nos.1 and 2. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.1 and 2 is very clear that the deceased was taken away by Accused Nos.1 and 2 in an auto forcibly; that the dead body of the deceased was found lying near the Rythu Bazar at Karimnagar; that immediately after the arrest of the accused and in pursuance of their confessional statements, certain incriminating material objects have been seized and these circumstances would go to show about the participation of both the accused in the commission of offence and therefore, the trial Court, after an elaborate consideration of evidence on record, rightly found the accused guilty and there are no grounds to interfere with the conviction and sentence recorded by the trial Court, and hence, she prays to dismiss the Criminal Appeal. 10. There is no direct evidence on record to show that the appellants herein are the persons who committed the murder of the deceased. The entire case rests upon the circumstantial evidence. When a case rests upon the circumstantial evidence, all the chains in the circumstances must be so complete not to escape from the conclusion that within all human probability, the crime was committed by the accused and none else. 11. The law is well settled that the when a case rests upon circumstantial evidence, such evidence pass certain tests as stated in the decision reported in Padala Veerareddy v. State of Andhra Pradesh & others, wherein it is held thus: “1) the circumstances form which an inference of guilt is sought to be drawn, must be cogent 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.” Bearing the above principles in mind, it has to be seen whether the prosecution is able to establish the guilt of the accused beyond all reasonable doubt. 12. The prosecution relied upon the following circumstances: (1) The homicidal nature of the death of the deceased; (2) Motive for the incident; (3) Prior to the death, the deceased was in the company of the accused; and (4) The arrest of Accused No.1 and recovery of blood stained knife and blood stained bunion. 13. P.W.11 conducted inquest on the dead body of the deceased under Ex.P3-Inquest report in which the Inquest Mediators opined that the deceased died as a result of the injuries sustained by him. 14. P.W.8 is the doctor who conducted Post-Mortem Examination on the dead body of the deceased found the following injuries: 1. Stab injury 1 ½ x ¼ cms. transversely above the left sterno clavical joint edges sharp – 5 cms. deep backwards and down; 2. Total cut of left external jegularvein; 3. Laceration of the apex of the left lung 2 x ½ x ½ cms. with left Hemothorax; 4. Stab injury 1 ½ x ¼ / 1 cms – right buttock; 5. Laceration right grim 2 x ¼ x ¼ cms. All the injuries are ante-mortem in nature and could have been caused by stabbing with a knife like M.O.1. He gave opinion that the deceased died due to shock and hemorrhage, due to multiple stab injuries. Practically, the evidence of P.W.8 and the recitals in Ex.P29-Post-Mortem Report remained unchallenged. Therefore, the homicidal nature of the death of the deceased is established beyond all reasonable doubt. 15. The scene of occurrence is not in dispute. P.W.11 got photographed the scene of occurrence through P.W.6. P.W.6 had taken Exs.P4 to P27 positive and negative photographs of the dead body of the deceased as well as the scene of occurrence. The details of the observation with regard to the scene of occurrence has been made in Ex.P33-Crime Details Form. 16. Coming to the motive aspect, the motive plays an important role in a case which rests upon the circumstantial evidence. Motive is not an integral part of the crime. It is only an aid and assessment of criminality. Absence of motive or non- proof of motive may not be a ground to reject the prosecution case if otherwise established. 17. P.W.2 speaks that his brother was killed on account of enmity for the reason that the accused are pick pocketers and that his mother asked the deceased not to move with the accused, but that cannot be the motive for the incident. 18. It is not the case of P.Ws.1 and 2 that they have chastised the accused for coming to their house and taking the deceased or for any other reason, the accused entertained a grouse or enmity against the deceased. There is absolutely no motive for the accused to commit the murder of the deceased. On 25.06.2001 at about 9.30 p.m., the accused took away the deceased forcibly in an auto. Thereafter, the deceased did not return. 19. On the other hand, the dead body of the deceased was found near Rythu Bazar in Karimnagar, which is at a distance of 500 yards from the toddy compound of P.W.4. Though it is the case of the prosecution that the deceased was taken to the toddy compound, but there is absolutely no evidence to show that the deceased was in the company of the accused consuming toddy. 20. The owner of the toddy compound is examined as P.W.4. He did not support the case of the prosecution. Therefore, he was declared hostile. 21. There cannot be any dispute that simply because the witness turned hostile, that does not mean his evidence would be erased from the record. Such part of his testimony which inspires confidence can be used to corroborate the other evidence, if any, available on record. Though P.W.4 stated that the Accused No.1 was present in the toddy compound, he did not state the presence of the deceased in the company of the accused. Therefore, the evidence of P.W.4 does not incriminate anything against the accused. The time of the death assumes very importance. According to P.W.8, the death could have taken place about 12 to 24 hours prior to his Post-Mortem examination. He conduced the Post-Mortem examination on 26.06.2001 between 4.00 p.m. to 5.00 p.m. That means, the death of the deceased might have taken place between 4.00 p.m. on 25.06.2001 and 4.00 a.m. on 26.06.2001. Except the circumstance that the accused took the deceased from the house on 25.06.2001 at about 9.30 p.m., thereafter there is no evidence. If the last scene theory is so proximate to the time of the death, then it can be inferred that the accused are the perpetrators of the crime. In this case, the time of the death with reference to last theory is not so proximate. According to the medical evidence, the death might have taken place even prior to the accused taking away the deceased. 22. The other evidence is that the arrest of Accused No.1 and recovery of blood stained bunion from his body. No doubt, the blood stained knife recovered in pursuance of a disclosure statement made by Accused No.1 contained human blood. But it is not shown that the blood found on M.O.1-knife was that of the deceased. If the same blood group of the deceased was found on the blade of M.O.1-knife, then it can be said that M.O.1 was the weapon of offence used in the commission of the crime. The Forensic Science Laboratory report does not reveal about the grouping of the blood because the blood stains are disintegrated and the group of blood could not be determined. Similarly, the blood stain found on the bunion of Accused No.1 was not shown to be that of the same blood of the deceased. Therefore, the arrest of Accused No.1 and recovery of M.O.1 and the bunion cannot be said to be an incriminating circumstance against the accused so as to link the said circumstance in the chain of circumstances. 23. Even if the entire case of the prosecution is to be accepted as true and correct, the only incriminating circumstance against the accused is that they took the deceased from the house on 25.06.2001 at about 9.30 p.m. and thereafter, the deceased did not return. The dead body was noticed first by P.W.3 at about 6.00 a.m. The possibility of committing the murder by some other persons in between 9.30 p.m. on 25.06.2001 and before 6.00 a.m. on 26.06.2001 cannot be ruled out. There is absolutely no evidence to show that just before the murder or immediately after the murder, the deceased was in the company of the accused and that they consumed the toddy in the toddy compound of P.W.4. 24. The trial Court having given a benefit of doubt to Accused No.3 should have extended the same benefit of doubt to Accused Nos.1 and 2 also because the specific case of the prosecution is that Accused Nos.1 and 2 along with Accused No.3 came to the house of P.Ws.1 and 3 and took the deceased with them. Similarly, there is no evidence to show that the death has taken place in a sudden quarrel upon a sudden fight whereunder accused has taken any undue advantage of the situation. There are absolutely no evidence to arrive at a conclusion that the accused committed a culpable homicide not amounting to murder so as to punish them under Section 304 Part-II I.P.C. Similarly, there is absolutely no evidence to show that the accused committed the murder with such intention or knowledge that the death of the deceased is likely to take place. Except one circumstance, the prosecution has not proved or established in the chain of circumstances to infer that the crime was committed by the accused and none else. Therefore, the accused are entitled to benefit of doubt. 25. For the reasons stated herein above, the conviction and sentence passed by the learned IV Additional District and Sessions Judge (Fast Track Court), Karimnagar, in the judgment, dated 05.03.2002, in Sessions Case No.852 of 2002, against Accused Nos.1 and 2 for the offence punishable under Section 304 Part-II O.P.C. are set aside. The Accused Nos.1 and 2 are found not guilty of the offence punishable under Section 304 Part II I.P.C. and accordingly they are acquitted. The bail bonds of Accused Nos.1 and 2 shall stand cancelled. The fine amount, if any, paid by Accused Nos.1 and 2 shall be refunded to them. 26. The Criminal Appeal is, accordingly, allowed. ______________ (K.C.BHANU, J) Date: 16th November, 2009. KL