THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.260 of 2008 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal has been preferred by the appellant/sole accused against the judgment dated 24.01.2008, passed in S.C.No.442 of 2007, on the file of III Additional Sessions Judge, (FTC), Adilabad, whereunder and whereby the appellant/sole accused was found guilty of the offence under Section 302 I.P.C., and was convicted therefor and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/-, in default, to suffer simple imprisonment for three months. The case of the prosecution, in brief, is as follows: The accused is the son of Manik Rao (hereinafter referred to as ‘the deceased’). He used to move as vagabond without doing any work. The deceased did not like his attitude, and therefore, beat him on one or two occasions instructing him to attend to agricultural work, but he paid deaf ear and developed grudge against the deceased and was waiting for an opportunity. On 10.06.2007 in the morning time, while the deceased was attending to agricultural work had admonished the accsued for not coming to the fields. At about 11.00 a.m, the deceased along with his son had meals and slept at his house. By finding this opportunity, the accused took an axe available in the house and axed his father to death by hacking him on his neck. P.W.2 had witnessed this incident and raised cries, thereby, the neighbours came there. P.W.1, who is the brother of the deceased, also came there and found the deceased lying dead on the floor. Thereafter, he gave Ex.P.1-report to the police. Based on the said report, P.W.8-Sub Inspector of Police registered a case in Crime No.52 of 2007 for the offence under Section 302 I.P.C and issued F.I.R. Ex.P.21 is the original F.I.R. P.W.9 is the Investigating Officer. He examined the witnesses and recorded their statements. Thereafter, he conducted inquest over the dead body of the deceased in the presence of mediators, seized the material objects, prepared the rough sketch of the scene of offence, got photographed the scene of offence as well as the deceased, apprehended the accused and produced him before the learned Judicial Magistrate of First Class, Asifabad, for judicial remand. After completion of investigation and receipt of necessary reports, charge sheet was filed. On committal, the learned Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the same was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. Since the accused expressed that he has no means to engage an advocate, he was provided with legal aid To substantiate its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P.1 to P.24, besides the case properties M.Os.1 to 4. After the closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C so as to enable him to explain the incriminating circumstances appearing against him. He denied the allegations and pleaded not guilty. However, he has not chosen to adduce any oral or documentary evidence on his behalf. The learned Sessions Judge, on considering the entire material available on record, found the accused guilty of the offence under Section 302 I.P.C., and accordingly convicted and sentenced him as stated supra. P.W.1, who is the brother of the deceased, and who set the criminal law into motion, deposed that on the date of occurrence, he returned to the home at 12.00 noon; that his house is situated nearby the house of the deceased intervened by another house; that at that time, he found P.W.2,who is the younger son of the deceased, coming out from his house raising cries; that he went inside the house and found the deceased lying dead on the floor with bleeding injury on his throat; that P.W.2 told him that the accused killed the deceased with an axe; that the accused never used to go to any work and he used to beat the deceased on the previous occasions also; that only the accused was there in the house; that the villagers caught hold of the accused and tied him to a pole at the house and that later the accused untied the rope and ran away from the spot. P.W.2, who is the another son of the deceased and brother of the accused, deposed that on the date of occurrence he slept in the house as he was suffering with fever and at that time, his father also slept in the house; that at about 10.00 a.m, the accused came there with an axe and hacked his father on his throat twice or thrice; that when he got up and went near him, the accused threw the axe on the floor; that he ran out of the house by raising cries and on hearing the same, many people gathered there, caught hold of the accused and tied him to a pole and that thereafter, the accused escaped from the spot. P.Ws.3 and 4, who are neighbours of the deceased, deposed that they heard the cries of P.W.2; that when they came to the house of the deceased, they found the deceased lying dead with bleeding injury on his throat; that they found the accused at the house and that P.W.2 told them that the accused killed the deceased. However, P.W.4 in his cross-examination stated that the accused was staying outside the house when the police visited the house and that the police had taken away the accused along with them. P.W.5 is the photographer, who took the photographs of the dead body of the deceased. Exs.P.2 to P.9 are the photos and Exs.P.10 to P.17 are the corresponding negatives. P.W.6 is the doctor, who conducted autopsy over the dead body of the deceased. He issued Ex.P.18 opining that the deceased died due to chopped wound on the neck and that the injury can be caused with a deadly weapon like axe. P.W.7 is the inquestdar. He deposed that himself and L.W.8- Madavi Jangu were present when the police conducted inquest over the dead body of the deceased; that he signed on Ex.P.19-inquest panchanama; that M.O.1-banian of the deceased was seized during the inquest; that M.O.2-axe, M.O.3-blood stained earth and M.O.4- controlled earth were seized from the scene of offence and that he also signed on Ex.P.20-crime detail form. P.W.8 is the Sub Inspector of Police, who registered the crime based on Ex.P.1-report, whereas P.W.9 is the Investigating Officer, who investigated into the crime. The main points urged by the learned counsel for the appellant are as follows: (i) Sole eyewitness to the occurrence; (ii) The rest of the evidence is unbelievable ; and (iii) There is no connecting evidence to establish that the accused committed the crime. We have heard the arguments on either side and perused the record. As per the case of the prosecution, the accused after commission of the crime was caught hold by the neighbours and tied to a pole. The other version of the prosecution is that the accused was present when the police officer visited the scene of offence and that the accused was arrested at the scene of offence after 8 hours. According to P.W.9-the Investigating Officer, he arrested the accused on the next day i.e., on 11.06.2007 near a vagu, which is away from the place of occurrence. The said evidence adduced by the prosecution is not only contrary, but contradicted with each other. Further, the main evidence on which the prosecution relies is P.W.2. It is the case of P.W.2 that he saw the accused hacking his father with axe and causing injuries. The same was deposed before the Court in the chief examination. But during the cross examination, he has specifically stated that the accused came and slept by his side and thereby he got up and saw his father lying dead; that the accused only told him that he killed his father; that by the time the police came to their village, the accused was also there in the house and that the police had taken his brother into custody. Further, there is no recovery from the accused and the Investigating Officer also stated that he has not recorded any confessional statement of the accused. It is unfortunate to note that the Investigating Officer has understood law in an erroneous manner. It is the bounden duty of the Investigating Officer that whenever a case is registered it is not only the duty to examine the witnesses but also the persons in whose presence the accused confessed. The Investigating Officer should have taken steps atleast to confirm the allegations made by the witnesses and the complainant. He should have given an opportunity to the accused concern to explain his case. In the present case, it is evident that the Investigating Officer has not taken any steps to gather any information with regard to the complicity of the accused in the commission of the offence. In the absence of any evidence to connect the accused with the crime, mere presence of the accused in the scene of occurrence, which is also in dispute, is not a ground to convict him. That too, for a grave offence under Section 302 I.P.C. Hence, the conviction and sentence recorded against the accused is liable to be set aside. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by the II Additional Sessions Judge, (FTC), Adilabad, in S.C.No.442 of 2007 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 not required in any other crime. The fine amount, if any, paid by the appellant, shall be refunded. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Dt.19.12.2011 va