THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.343 OF 2007 DATED: 13-07-2010 Between Sathupati Nageswar Rao @ Nagulu …Appellant-accused And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.343 2007 JUDGMENT: (per the HON’BLE SRI JUSTICE K.C.BHANU) This Criminal Appeal by the appellant-sole accused under Section 374 (2) of the Criminal Procedure Code, 1973 (for short ‘Cr.P.C.’) is directed against the judgment, dated 31-01-2007, in Sessions Case No.264 of 2006, on the file of the Principal Sessions Judge, Khammam, whereunder and whereby the appellant was convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.200/-, in default to undergo simple imprisonment for a period of one month of the charge under Section 302 of the Indian Penal Code, 1860 (for brevity ‘IPC’) and further convicted and sentenced to undergo R.I. for two years of the charge under Section 379 IPC and both the sentences were directed to run concurrently. 2. Brief facts, that are necessary for disposal of the present appeal, may be stated as follows: The de facto complainant (P.W.1) lodged a complaint before the Station House Officer, Madhira on 03-01-2006 stating that his younger sister Sangu Savitri (hereinafter referred to as ‘the deceased’) left the house on 03-01-2006 at about 10.30 hours with a sickle to fetch green grass and while she was passing through the red gram field of one Maineni Satyanarayana situated at the outskirts of Madhira Town, some unknown offender way laid and beat her with a pestle over her head, as a result, she died on the spot. The unknown offender committed theft of gold nanuthadu from the neck of the deceased and fled away. Basing on the said report, S.I. of police, Madhira Town registered a case, examined him and recorded his statement. He visited the scene of offence and posted a guard to preserve the scene. Thereafter, Inspector of Police took up investigation, visited the scene of offence, secured the presence of P.Ws. 2 and 3 and another and recorded their statements. He held inquest over the dead body of the deceased and subjected the dead body of the deceased for post- mortem examination. The medical officer who conducted autopsy over the dead body of the deceased opined that the cause of the death of the deceased was due to Cardio respiratory failure due to head injury and issued Ex.P6-postmortem certificate. The accused was apprehended while he was moving under suspicious circumstances. The accused confessed that he murdered the deceased and committed theft of Gold Nanuthadu from her neck and disposed of the same to one Gandhi of Chirala for Rs.2,000/-. In pursuance of his confessional statement, the accused lead the police to the hut of P.W.7, where the gold chain was seized. After completion of investigation, police filed charge sheet. 3. The learned Sessions Judge, framed the following charges against the accused: Firstly: That you on or about the 3rd day of January, 2006 in between 10.30 hours to 12.30 hours at the outskirts of Madhira village, committed murder intentionally or knowingly causing the death of Sangu Savithri by beating her with a pestle on head and thereby committed an offence punishable under Section 302 IPC. Secondly: That you on or about the same day, time and place as specified in charge No.1 supra, intending to take it dishonestly committed the theft of Gold Nanuthadu by taking out of the possession of the deceased Sangu Savithri and thereby committed an offence punishable under Section 379 IPC. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P-8 besides case property, M.Os.1 to 6. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same. No oral evidence was adduced on behalf of the accused except marking Exs.D1 to D4. 6. The trial Court after analyzing the oral and documentary evidence on record, found the accused guilty and accordingly convicted and sentenced him as above. Challenging the said convictions and sentences, the present appeal has been preferred by the accused. 7. Learned counsel appearing for the appellant-accused contended that there are no circumstances to indicate that murder was committed by the accused and none else, that the extra judicial confession said to have been made to P.W.6 cannot be believable in view of the fact that identity particulars of the person who was allegedly killed by the accused has not been spoken to by the witness, that mere recovery of M.O.2 cannot lead to an irresistible conclusion that the crime was committed by the accused and none else and therefore, she prays to set aside the convictions and sentences recorded against the accused. 8. On the other hand, counsel representing the learned Public Prosecutor contended that the evidence of P.W.5 would go to show that the accused has taken pestle from his house and with that pestle, he caused injuries to the deceased and committed theft of M.O.2, that the evidence of P.W.6 would go to show that the accused gave extra judicial confession stating that he killed one lady with a pestle, that there was no scope or possibility for any other person to commit the murder of the deceased, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced the accused and hence, absolutely there are no grounds to interfere with the said convictions and sentences. 9. Now, the point that arises for consideration, in this Criminal Appeal, is whether the prosecution has proved its case, against the accused of the charges under Sections 302 and 379 IPC, beyond all reasonable doubt? 10. P.W.13 conducted inquest over the dead body of the deceased in the presence of P.W.8 and others. The inquest mediators opined that the deceased died as a result of head injury. 11. P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased, found the following injuries: 1. Lacerated wound on right side of the back of the skull measuring 4” x 1 ½ “ x 1”. 2.Lacerated wound on left side of the back of the skull measuring 4” x 2” x 1”. 3.A lacerated wound on the left side of the frontal area just above the left eye measuring 3” x 1” x 1”. 4. Lacerated wound on the left frontal temporal area measuring 1 ½” x 1” x 1”. 5. Lacerated wound frontal area of skull measuring 4” x 1 ½” x 1”. 6.Five abrasions on the back of the palm and wrist of both the hands. 7.Five scratch marks on the right lower chest measuring 5” long. 8.Five thorn prints on the back of the chest and abdomen. He opined that the cause of the death of the deceased was due to cardio respiratory failure due to head injury and he issued Ex.P6- postmortem certificate. From the evidence of P.W.10 and the recitals in Ex.P6, it is established beyond reasonable doubt that the death of the deceased is homicidal in nature. 12. Now, it has to be seen whether the accused is the assailant of the deceased or not? 13. The entire case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the following circumstances have to be proved by the prosecution in view of the decision reported in SHARAD BIRIDHICHAND SARDA V STATE OF MAHARASHTRA [1]. (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 explainable 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. 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. 14. P.W.1 who is no other than the brother of the deceased did not speak anything against the accused. He stated that his sister died in the hands of unidentified persons and her dead body was found in the red gram crop of Maineni Satyanarayana. Therefore, he lodged Ex.P1 complaint with the police. He did not identify M.O.2 as belonging to his sister. 15. P.W.2 is the husband of the deceased. According to him, his wife went to the field of Maineni Satyanarayana and some unknown offender came and beat the deceased and took away her gold. He also did not identify M.O.2 as belonging to his wife. 16. P.W.3 did not state anything against the accused except stating that he found the dead body of the deceased lying in the field of Satyanarayana. 17. P.W.4 stated that the accused approached them while they were playing cricket and took the bat and exhibited how to hit the ball. According to him, the accused came at 10 A.M. He did not give the date, month and year on which, the accused exhibited how to hit the ball. 18. P.W.5 stated that at about 10.30 A.M., the accused came to his canteen and took away the pestle after taking food from the canteen. He also did not state the date, month and year on which, the accused came to the canteen at Madhira and had taken food in the canteen. 19. The evidence of P.W.6 is in the nature of extra judicial confession. His evidence would go to show that the accused informed him that he killed one lady with the help of a pestle and showed M.O.2 chain to him. In the cross-examination, in the first instance, he stated that except accused stating that he committed theft of M.O.2, nothing has been informed to him. Again he says that the accused also informed him that he killed one lady and committed theft of M.O.2. He is a mechanic working in the shed. It is not his case that the accused came and gave extra judicial confession with an impression that he would provide all his influence to get rid of the case. Even without asking anything by P.W.6, the accused informed him that he killed one lady with the help of pestle and picked up gold chain from her neck. There were blood stains on the clothes of the accused at that time. It is improbable to believe that the accused was moving in the village with blood stained clothes. It is not the case of P.W.6 that he went to the field of Satyanarayana and saw the dead body of the lady on the same day. Therefore, the extra judicial confession said to have been made to P.W.6 is very vague and cannot be believable for the reason that without asking anything, the accused voluntarily gave the statement that he committed murder of one lady and thereafter, committed theft of her gold chain. If really on 03-01-2006 at 1.00 P.M., the accused came to his shed and gave extra judicial confession, nothing prevented him to go to the Police Station to lodge a complaint. He was not examined on the same day of the incident or after the incident. Two days after the incident, his statement was recorded by the police. Therefore, the evidence of P.W.6 appears to be doubtful and cannot be acted upon. 20. There is no other evidence to show that the accused was in the company of the deceased at the time of occurrence or before the occurrence or after the occurrence near the field of Satyanarayana in the outskirts of Madhira village. Similarly, even if the evidence of P.W.5 is to be accepted that the accused took a pestle from the canteen, there is no evidence to show that the pestle was the weapon of offence used in the crime because pestle was not produced before the Court nor shown to the doctor who conducted postmortem examination over the dead body of the deceased to know whether injuries on the deceased would have been possible by beating with a weapon like pestle. 21. The only other circumstance is recovery of M.O.2 at the instance of the accused from P.W.7. According to P.W.7, the accused asked him to sell M.O.2 or mortgage M.O.2. But P.W.7 pledged the same with his neighbour and borrowed Rs.2,000/-. Some days thereafter, when police came and enquired him, he handed over M.O.2 to the police. Police seized the same at the instance of the accused. Even assuming for a moment that M.O.2 was recovered at the instance of accused from P.W.7, still it cannot be said that it is a theft property because M.O.2 was not identified by any of the relatives of the deceased as belonging to the deceased. P.W.1, who is no other than the brother and P.W.2 who is no other than the husband of the deceased did not say that M.O.2 belongs to the deceased. Therefore, arrest of the accused and recovery of M.O.2 at the instance of accused from P.W.7, cannot be said to be an incriminating circumstance against the accused. Absolutely, there is no legal evidence to show that the accused committed murder of the deceased or circumstances to indicate that he was the perpetrator of the crime. Though recovery of M.O.2 was established, it was not shown to be theft property. Therefore, the accused is entitled for acquittal. 22. Since the prosecution has not established that M.O2-Gold chain (Nanuthadu) belongs to the deceased and the accused also has not claimed the said property, there is no option for this Court except to confiscate M.O.2 to the State. 23. Accordingly, the Criminal Appeal is allowed setting aside the convictions and sentences recorded against the appellant/accused of the charges under Sections 302 and 379 IPC, by the Principal Sessions Judge, Khammam, vide judgment, dated 31-01-2007, in Sessions Case No. 264 of 2006. The appellant/accused is found not guilty of the charges under Sections 302 and 379 IPC and accordingly, he is acquitted of the same. The appellant/accused shall be released forthwith, if he is not required to be detained in any other case. Fine amount, if any, paid by the appellant/accused shall be returned to him. M.O.2 shall be confiscated to the State. ------------------------------------- JUSTICE A.GOPAL REDDY ------------------------------- JUSTICE K.C.BHANU DATED:13-07-2010 Hsd [1] AIR 1984 SC 1622