HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1230 OF 2007 Dated:14-06-2011 BETWEEN: Shaik Nagul Basha @ Srinu …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1230 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Sole accused-appellant was put on trial for the offence punishable under Section 302 I.P.C. in S.C.No.102 of 2007 on the file of III Additional District and Sessions Judge (Fast Track Court) at Medak. By judgment dated 03.8.2007 he was convicted for the said offence and was sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default to suffer simple imprisonment for six months. 2. The story of the prosecution as narrated during the course of trial is as under: One Yadamma (hereinafter referred to as ‘deceased’) was married to one Byathaiah of Parvatla Village. Out of their wedlock, she begot a son-P.W.5 and after three years of the marriage, she was divorced. P.W.4 is the father of deceased; P.W.2 is the aunt and P.Ws.3 and 7 are the uncles of the deceased; P.W.8 is the relative; and P.W.6 (minor) and 9 are the cousins of deceased. After divorce, the deceased had some illicit affairs with one Venkatesam and a constable. There were disputes regarding the same. Thereafter, the deceased was living with the accused. 25 days prior to the incident, the deceased and accused along with P.W.5 went to the house of P.W.2. P.W.2 and her husband-P.W.3 used to go for coolie work and the deceased and accused used to be at home. They used to quarrel with each other. P.W.3 asked the elders, P.W.8 and another to counsel them. After counseling, they asked the accused to take the deceased with him to Hyderabad after Dasara Festival. On the next day morning i.e. on 29.9.2006, the deceased along with P.W.6, her minor cousin went to attend calls of nature and there they met the accused. All of them proceeded to Tekmal and thereafter P.W.6 alone returned home and informed P.W.2 that the deceased and the accused were quarreling with each other. Then P.W.2 went to Tekmal and did not find them. In the evening P.W.9 informed her that they proceeded towards Korampally. P.W.2 waited for them till night and returned home. On 29.9.2006 at about 5.00 p.m. P.W.1 was informed by one of his village servants that a dead body was found near the sugar cane fields of one Easwaraiah on the pathway leading to Korampally near gundla vagu. Immediately, P.W.1 rushed to the spot and lodged a written report with Tekmal police station. P.W.13-Sub-Inspector of Police registered a case in Crime No.44 of 2006 under Section 302 IPC and issued express FIR to all concerned. Ex.P.6 is the FIR issued by him. On the next day i.e. on 30.9.2006 P.W.2, her family and her relatives went to Gundla vagu and identified the dead body as that of the deceased. P.W.14-Inspector of Police examined P.Ws.2 to 7 and 9. He secured the presence of witnesses and conducted scene of offence panchanama and also inquest panchanama. P.W.10 and another acted as Panchas. Ex.P.2 is the scene of offence panchanama and Ex.P.3 is the inquest report. Thereafter the dead body was sent for autopsy. P.W.12-doctor conducted autopsy and issued Ex.P.5-post mortem report. On 9.10.2006, P.W.14 arrested the accused in the presence of mediators, P.W.11 and another. He recorded the confession of the accused in the police station. At the instance of the accused, he seized M.O.1 from a hut near the scene of offence. After completion of the investigation P.W.14 laid the charge sheet. On committal, a charge for the offence under Section 302 IPC has been framed against the accused and the same was explained and read over to the accused in Telugu. The accused pleaded not guilty and claimed to be tried. 3. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 14 and marked Exs.P.1 to P.6 besides M.Os.1 to 4. On behalf of defence, no oral or documentary evidence was adduced. 4. The learned Sessions Judge after appreciation of oral and documentary evidence adduced and particularly the evidence of P.Ws.6 and 9, who stated that they had last seen the deceased in the company of the accused, came to the conclusion that the prosecution proved the guilt of the accused beyond all reasonable doubt and convicted and sentenced him as aforementioned. 5. Ms. Naseeb Afshan, learned counsel appearing on behalf of the accused- appellant has taken us through the entire evidence and contended that after arrest of the accused on 9.10.2006, the evidence of witnesses was recorded with ante-date, that the evidence of P.Ws.6 and 9, on whose evidence, the Court below mainly relied on is highly unbelievable and in view of the omissions as admitted by the investigating officer-P.W.14 their evidence cannot be relied upon to convict the accused particularly, in this case, which is based upon circumstantial evidence. It is nobody’s case that the accused was carrying axe while he was proceeding with the deceased. It is highly unbelievable that immediately after attending calls of nature in the morning, the accused, deceased and P.W.6 would go to angadi bazaar of Tekmal for purchasing cloths. Therefore, the prosecution miserably failed to bring home the guilt of the accused beyond all reasonable doubt and in view of the mitigating circumstances, the accused is entitled for acquittal. 6. On the other hand, learned Public Prosecutor sought to sustain the conviction and sentence of the accused contending that when P.Ws.6 and 9 categorically deposed that they had last seen the deceased in the company of the accused, it is for the accused to explain how the deceased met with homicidal death. As per the evidence of P.W.8 there used to be frequent quarrels between the accused and the deceased and last such quarrel took place on the previous day and that itself is the motive for the accused to kill the deceased. 6. In the case on hand, there is no direct eyewitnesses to the incident and the entire case rests upon the circumstantial evidence. It is now fairly well settled that when the case rests upon the circumstantial evidence, the following conditions must be fulfilled as held by the Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622): (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must or should’ and not ‘may be’ established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty. (3) The circumstances should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. While laying down the above conditions, the Supreme Court further held that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 7. Keeping the above principles in mind, we shall now examine the evidence adduced by the prosecution. P.W.1, Executive Officer of Tekmal Gram Panchayat, is not an eyewitness to the incident. He set the criminal law into motion by lodging Ex.P.1 with the police on receipt of information from the village servant about his noticing an unknown dead body lying in the fields of one Eswaraiah. P.W.2, maternal aunt of the deceased deposed that the deceased used to stay with the accused. 25 days prior to the death of deceased, she came to her house along with her son-P.W.5 and stayed in her house. During the said period, accused visited Hyderabad and took her son to provide employment. The accused and her son returned to her house after three days. During their stay at her house, the accused and deceased used to quarrel with each other. P.Ws.8 and 9 convened a meeting and advised the accused to take the deceased to Hyderabad after Dasara festival. Accused accepted the same and threatened the deceased that he would kill her if she would not follow him to Hyderabad. On the next day, deceased and P.W.6 proceeded to attend calls of nature. Later P.W.6 alone returned and informed her that the accused kicked the deceased with his legs near Hanuman temple and from there, the accused and deceased proceeded to Angadibazar and accused requested P.W.6 to call P.W.2 and her husband. On that, she (P.W.2) proceeded to Tekmal and searched for the accused and deceased, but she could not find them. In the evening, P.W.9 informed her that the accused and deceased were proceeding towards Korampally. On the same night, she came to know about the death of the deceased. On the next day morning, herself and her husband proceeded to Gunduvagu and found the dead body of the deceased. P.W.6 is the child witness, who is aged about 7 years as on the date of examination. She deposed that she accompanied the deceased to tank-bund for attending calls of nature. At that time accused also attended to calls of nature. They washed their faces in the water tank and the accused took them to Tekmal and when they reached Tekmal village at Kindi Hanuman temple, the accused kicked the deceased with his leg. From there, they went to Anadi bazaar, where the deceased sat and started crying. On that, she (P.W.6) came to her house and informed to her mother about the incident. She admitted that prior to the visit of the accused to her house, she never saw the accused and that she informed the incident to her mother at 10.00 a.m. Then the other crucial witness is P.W.9, who has last seen the deceased in the company of the accused. He deposed that two days prior to Dasara festival, he witnessed the accused and deceased while proceeding to Korampally. On the same day evening, P.W.2 enquired him about the accused and deceased and that he informed her about his witnessing the accused and deceased in the morning. On the next day morning he came to know about the death of the deceased. Here, it is important to consider the evidence of investigating officer. The investigating Officer- P.W.14 was cross-examined by the defence. He admitted that P.W.9 has not stated before him that P.W.2 enquired him about the deceased and on that he informed P.W.2 that he witnessed the accused and deceased in the morning. P.W.14 further admitted that in the 161 Cr.P.C. statement, P.W.2 did not state before him that the accused came to her house 20 days prior to the death of the deceased and she did not state before him that the accused kicked the deceased with his leg. She did not state before him that P.W.6 informed her that accused requested P.W.6 to inform the dispute between the accused and deceased to P.W.2. P.W.3 has not stated before him that P.W.6 informed him about the incident when he returned from work. As per his investigation, P.W.5 is aged about 9 years on the date of examination. P.W.6 has not stated before him that accused kicked the deceased with his leg. P.W.14 stated that he cannot say upon whose information he incorporated in the inquest report that accused, deceased and P.W.6 proceeded to Tekmal village for collecting cloths. 8. From the evidence as extracted above, the prosecution miserably failed to establish that the accused and deceased were last seen together in the morning, since neither P.W.6 nor P.W.9, who were examined by the prosecution to establish that the accused and deceased were last seen together, has stated at the earliest point of time about their witnessing the deceased in the company of the accused in the morning. Therefore, it is unsafe to rely on the evidence of P.Ws.6 and 9. If their evidence is eschewed from consideration, there is no other evidence to connect the accused with the commission of offence. The prosecution also miserably failed to establish the motive of the accused to commit the heinous crime. P.W.8, who was examined to prove the motive, has stated that himself and P.W.9 proceeded to the house of P.W.2 and witnessed the accused and deceased disputing with each other and that he admonished the accused not to raise disputes and advised him to take the deceased after Dasara festival. Whereas P.W.9 has not stated about his accompanying P.W.8 and their admonishing the accused and advising him to take away the deceased after Dasara festival. It is not in dispute that the accused was arrested on 9.10.2006 and P.W.9 was summoned to the police station and in his presence, accused made a confessional statement about his concealing the axe in the hut near the scene of offence. Though P.W.14 corroborated and stated that he sent M.O.1 to F.S.L. Hyderabad, the report of F.S.L. was not marked as an exhibit. Further even if we accept the evidence of P.Ws.6 and 9 that the deceased was seen in the company of the accused in the morning i.e. in the early hours on 29.9.2006, the dead body of the deceased was found in the evening at 5.00 p.m. by P.W.1. There is no evidence to show that the accused accompanied the deceased to the place of occurrence to connect the accused with the commission of offence. Therefore, in view of the mitigating circumstances, it is unsafe to convict the accused on the scanty evidence adduced by the prosecution. 9. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed by III Additional District & Sessions Judge (Fast track Court) at Medak in S.C.No.102 of 2007, dated 03.08.2007 are hereby set aside. The appellant-sole accused is found not guilty of the charge with which he stood charged and he is acquitted of the same. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by the appellant-accused, shall be refunded. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JUNE 14, 2011 Tsr.