HONOURABLE SRI JUSTICE D.S.R.VARMA AND HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL (SR) No.25199 of 2009 ORAL JUDGMENT: (Per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor appearing for the appellant-State. 2. Appellant herein is the State and the respondent is the sole accused in Sessions Case No.347 2007. 3. Aggrieved by the judgment, dated 09.01.2009, passed by the VI Additional District and Sessions Judge, (Fast Track Court), Krishna at Machilipatnam, in Sessions Case No.347 of 2007, acquitting the respondent-accused of the offence punishable under Section 302 of the Indian Penal Code (for brevity “IPC”), the State has preferred this Criminal Appeal. 4. The case of the prosecution, in brief, appears to be that there were some disputes between deceased No.1 and the accused; that in the year 2002, both were involved in criminal cases filed by them against each other; that there were also some other disputes regarding the illicit arrack and in that connection, the accused had some grouse against the deceased No.1 and preserved some illicit arrack in plastic bottle, mixed it with cyanide poison and preserved it in his house with an intention to kill deceased No.1 by giving it to him; that on 18.11.2005, at about 7 pm., when both the deceased along with one China Venkateswarlu went to the house of the deceased and demanded arrack, the accused refused to give arrack to P.W-3, but served poisonous arrack to both the deceased, who consumed the same, and fell down immediately in front of the house of the accused; that on information, the wife and son of deceased No.1 rushed to the spot and shifted both the deceased to the hospital, where they were declared dead; that five other persons who also consumed arrack along with the deceased went to the hospital and got themselves admitted due to fear; that the Police on receiving the information over phone, set the criminal law into motion and proceeded with the investigation; and that after completion of the necessary formalities, filed the charge sheet. 5. When the charge under Section 302 IPC was framed against the accused, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 6. In order to substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-16, besides M.Os.1 to 5, on its behalf. On behalf of defence, none was examined and Exs.D-1 and D-2 were marked. 7. The trial Court, having appreciated the entire evidence, both oral and documentary, available on record, acquitted the accused of the offence with he was charged. Aggrieved by the order of acquittal recorded by the trial Court, the State has preferred the present Criminal Appeal. 8. The only question that arises for consideration, in this appeal, is as to whether the trial Court appreciated the evidence on record properly for the purpose of recording the order of acquittal against the accused? 9. In this connection, it is to be seen that the entire case of the prosecution is based on the circumstantial evidence. It was pointed out by the trial Court that P.Ws.1 and 2, who are the wife and son of the deceased No.1, respectively, did not mention the names of the accused in their complaint-Ex.P-1, which is the earliest statement. In fact, it was specifically mentioned in Ex.P-1 that deceased Nos.1 and 2, the accused, P.W.3 and some others have consumed arrack, at the house of the accused, which was brought by the accused from the house of one Mariyamma and Nayeem, who were residents of a different village. It was also noticed by the trial Court that Mariyamma and Nayeem were also figured as suspects in the First Information Report, but, surprisingly, the names of those persons were extricated from the charge sheet and the investigating officer did not mention any reason whatsoever for the same. 10. The entire case of the prosecution appears to have been based on the extra-judicial confession of the accused and the recovery of the material objects, under Section 27 of the Indian Evidence Act, basing on the extra-judicial confession made by the accused. 11. So far as the extra-judicial confession of the accused made before P.W-11 is concerned, P.W-11 in his evidence deposed that on 20.11.2005, the accused came to him and confessed that he mixed cyanide in the arrack and gave it to both the deceased. But, in the cross-examination, he admits that he had no acquaintance or friendship with the accused prior to the so-called extra-judicial confession made by the accused before him. He further admits that it is mentioned in the extra-judicial confession-Ex.P-7 that the same was prepared after he reached Chilakalapudi Police Station along with the accused. 12. In this regard, it was noticed by the trial Court that P.W-11 would have got prepared a draft confession and thereafter, the actual confession-Ex.P-7 was prepared in the Police Station. It was further pointed out by the trial Court that there was no necessity for the accused to go to a stranger like P.W-11 and that there is absolutely no proximity or affinity, whatsoever, between P.W-11 and the accused. In such a case, it is rather unbelievable that the accused confessed before P.W-11, and, as already pointed out, even about the preparation of Ex.P-7, there is any amount of doubt in the circumstances narrated by P.W-11. Thus, the trial Court had pointed out all the infirmities in the evidence of P.W-11 insofar as the extra-judicial confession of the accused and rightly discarded the same. 13. Further, in Ex.P-1, which was lodged by P.W-1, it is stated that both the deceased, the accused and others have consumed the arrack together and precisely the reason as to why the name of the accused was alone found in the First Information Report-Ex.P-12 and the names of one Mariyamma and Nayeem were eliminated is not known. When the same arrack, which was said to be poisoned, was consumed by the accused and others along with the deceased, it is unbelievable, again, as to why only the deceased died, but not others, who consumed it. 14. Coming to the aspect of recovery of the zandu balm bottle, which originally contained the poison, it is to be seen that, no doubt, the evidence of P.W-12 is to the effect that on 20.11.2005, at the instance of the accused, he along with the Police went to the house of the accused, where the accused himself fetched the zandu balm bottle and handed over it to the Police. But, as to from which place in the house the said bottle was fetched by the accused was not spoken to by him. 15. It was specifically pointed out by the trial Court that on 19.11.2005, at about 9 am., at the scene of offence, an empty plastic bottle containing arrack, steel vessels, glasses and plastic bottle containing arrack have been seized under the panchnama-Ex.P-8 and further, that the zandu balm bottle containing cyanide was recovered in pursuance of the confession said to have been made by the accused. It was further pointed out by the trial Court that one day prior to the extra-judicial confession made by the accused, which led to the recovery of M.Os.1 to 4, the Police and the panchas searched the house of the accused and seized M.Os.1 to 4, but no plausible reason was given either by the witness or the police as to the non-recovery of M.O-5 on 19.11.2005, basing on the confession of the accused. Therefore, this is a strong and doubtful circumstance for this Court to entertain a doubt as to whether M.O-5-zandu balm bottle containing cyanide was really recovered at the instance of the accused and as contemplated under Section 27 of the Indian Evidence Act. 16. We have carefully perused the impugned judgment rendered by the trial Court. We see no reason to interfere with the well-reasoned judgment rendered by the trial Court and accordingly, the Criminal Appeal is liable to be dismissed. 17. In the result, the Criminal Appeal is dismissed, at the stage of admission. ________________________ JUSTICE D.S.R.VARMA _____________________________________________ JUSTICE SAMUDRALA GOVINDARAJULU 10th March 2010 dr