HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1197 of 2010 JUDGMENT: (Per Hon’ble Sri Justice A. Gopal Reddy) The State filed this appeal aggrieved by the judgment, dated 23.03.2005, passed by the learned III Addl. Sessions Judge (Fast Track Court), Nalgonda, in S.C.No.141 of 2004, acquitting the respondent-accused for the offence punishable under Section 302 IPC. Briefly stated, the case presented by the prosecution before the trial Court, is as under: P.W.1 lodged Ex.P.1-complaint with the Station House Officer, Nakrekal Police Station, on 01.09.2003, stating that on 31.08.2003 at about 10.00 p.m. when his father by name Mada Narsaiah (hereinafter referred to as “the deceased”) was returning home, after attending Pooja at Vinayaka Idle at Nadigudem Village, on the way the respondent-accused took him to his house for having meals and, all of a sudden, the accused lifted the deceased and hit him to a wall and also inflicted bleeding injuries on the left side of his head, back of the head and other parts of the body. Meanwhile, P.Ws. 3 to 5, who were passing through the said house, found the same, went inside the house of the accused, rescued the deceased from further beating and thereafter shifted him to the hospital of Dr. Mohan Reddy on the same day where he was declared ‘dead’. Basing on the complaint of P.W.1, the Sub Inspector of Police, Nakrekal Police Station, registered a case in Crime No.116 of 2003 under Section 302 IPC against the accused. Thereafter, P.W.14 took up investigation, visited the scene of offence, held inquest over the dead body of the deceased, drawn Ex.P.6-sketch of scene of offence, conducted scene of offence panchanama, and sent the dead body of the deceased to the Government hospital for post- mortem examination where the doctors opined that the deceased died, due to injuries to vital organs. On 04.09.2003, P.W.14 arrested the accused and on interrogation, the accused confessed to have committed the offence and, accordingly, his confessional statement was recorded and, at his instance, a toddy tapping sharp edged weapon (M.O.4) used in the commission of the offence was recovered from his house under the cover of Ex.P.8-seizure panchanama. Thus, the investigation discloses that the accused, suspecting the deceased practising sorcery on him and his wife, attacked the deceased with M.O.4-knife and caused injuries to him which resulted in his death. Therefore, the accused is liable for punishment under Section 302 IPC. A charge under Section 302 IPC was framed, read over and explained to the accused in Telugu, for which he pleaded not guilty and claimed to be tried. In order to substantiate its case, the prosecution conducted trial by examining as many as 14 witnesses and marking Exs.P.1 to P.11 apart from M.Os. 1 to 4. On behalf of the defence, no oral or documentary evidence was adduced. The learned Sessions Judge, on appreciation of oral and documentary evidence, was of the view that the prosecution failed to bring home the guilt of the accused for the offence punishable under Section 302 IPC and, accordingly, acquitted him of the offence, through judgment, dated 23.03.2005. Being aggrieved by the same, the State filed this appeal. Learned Additional Public Prosecutor contended that the trial Court has not given any valid and convincing reasons in rejecting the evidence of P.Ws. 3 to 5 who are direct witnesses to the incident and also the evidence of P.W.6 who is a circumstantial witness. Their evidence leads to only one conclusion and inference that it is the respondent-accused who committed the murder of the deceased. Though some of the witnesses examined by the prosecution have turned hostile, the evidence of P.Ws. 3 to 6 is cogent and consistent. We have gone through the evidence on record. Out of the 14 witnesses examined by the prosecution, P.Ws. 3 to 5 are said to be eye witnesses. Out of them, P.Ws. 4 and 5 have turned hostile. P.W.1 is the complainant and son of the deceased, while P.W.2 is wife of the deceased and said to be a circumstantial witness. P.W.4 in his evidence stated that when he came near the house of the deceased for taking a stool, he saw P.Ws.3 and 5 going into the house of the accused. Then he also accompanied them and found the deceased with an injury on his left temporal region. Later, they brought the injured out of the house and took him to Mada Nursing Home at Nakrekal in an auto belonging to P.W.7. P.W.5 deposed that while he was going to his house, he heard some galata in the house of the accused. Then, he and P.W.4 went there and found the deceased fell on the ground in the house of the accused, but he did not observe whether the deceased received injuries. He did not state with regard to the accused attacking the deceased and causing injuries to him and the same was witnessed by P.Ws.3 and 4. In the light of the contradictory evidence of P.Ws. 4 and 5, the prosecution declared them as hostile. Though P.Ws.4 and 5 were declared hostile, the Addl. Public Prosecutor could not elicit anything from them in support of the prosecution case. According to the prosecution, now the only evidence available is the evidence of P.W.3. She is no other than sister-in-law of the deceased. According to her, on the day of festival of Vinayaka Chavithi at about 10.00 a.m., the accused took the deceased to his house for dinner and after having meals, he picked up a quarrel with the deceased and hit his head to a wall and thereafter beat him with M.O.4-knife on his temporal region and on his chest. Later, she informed the incident to P.W.1. Whereas in cross-examination, she sated that she did not state to police as in her statement before them that the accused beat the deceased with M.O.4-knife on his left temporal region. The evidence of P.W.3 clearly shows that she is not an eye witness and she is an interested witness. Hence, her evidence cannot be believed. In the light of the above, the entire case of the prosecution is based upon the so-called confessional statement made by the accused that he suspected the deceased practicing sorcery on his wife and other family members and bore grudge against him and thereby caused injures to the deceased which resulted in the death of the deceased. In an appeal against an order of acquittal, the prosecution has to establish that there are compelling and substantial circumstances to interfere with the acquittal order passed by the trial Court. P.W.1 is none other than the son of the deceased who deposed that the accused took his father to his house for dinner and thereafter he picked up a quarrel with his father on the ground that he is playing sorcery on his wife and beat him with a toddy tapper’s knife on his left temporal region and on his chest. He has not stated that on hearing the cries of his father, he went to the rescue of his father and witnessed the incident. Therefore, he is not an eye witness to the incident and the lower Court rightly found that he is a hear-say witness to the incident. If really he witnessed the incident, he would have mentioned the same in Ex.P.1 complaint and in the statement recorded by the police. In fact, neither he has mentioned the said fact in Ex.P.1- complaint nor stated before the police while his statement was being recorded by them. P.W.2 is the wife of the deceased. She also stated that when she was at Nalgonda, she was informed over phone about the murder of the deceased-husband. Therefore, she is also a hearsay witness. While P.W.10, the panch witness of scene of offence, deposed that M.O.4-knife was seized from the accused on 01.09.2003, P.W.11 the panch witness for confession statement of the accused, deposed that it was seized on 04.09.2003. Thus, the evidence of P.Ws.10 and 11 is contradicting with each other. Further, the prosecution failed to examine L.W.13, the other panch witness for confession statement of the accused and seizure of M.O.4-knife. Hence, the seizure of M.O.4-knife is doubtful. In view the foregoing discussion, we are of the view that the prosecution utterly failed to prove the guilt of the accused for the offence punishable under Section 302 IPC beyond all reasonable doubt and the conclusion arrived at by the trial Court for holding that the respondent- accused is not guilty of the said offence does not warrant interference. The Criminal Appeal is accordingly dismissed. ____________________ A. GOPAL REDDY. J __________________ RAJA ELANGO, J 21st September, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1197 of 2010 (Dismissed) 21st day of September, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1197 of 2010 Dated:21-09-2010 BETWEEN: The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Petitioner AND Mada Saidulu …Respondent THIS COURT MADE THE FOLLOWING: