HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.466 OF 2007 Dated:24-08-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Bobbili Somulu & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.466 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State preferred this appeal aggrieved by the acquittal order passed against accused 1 to 4 in S.C.No.123 of 2001 on the file of II Additional Sessions Judge (Fast Track Court) at Parvatipuram, dated 5.2.2005. 2. The prosecution story as unfolded during the course of trial, in brief, is that Raghumandala Hemavathi (hereinafter referred to as ‘the deceased’) and the accused are the residents of Makkuva Village. A.1 to A.4 are close associates and A.2 is a jeep driver under A.3. A.3 is having a bangle shop at Bus Stand Junction, Makkuva. The deceased is the daughter of P.W.1 and was studying X Class at Z.P.High School, Makkuva. A.2 used to follow the deceased while she was going and returning from the school. While so, on 29.11.1999, at about 9.00 a.m., while the deceased was at her fields, A.2 went near her and while they were coming to the road, A.1,A.3 and A.4 followed them towards Vadisela Metta. A.2 and A.3 gagged the mouth of the deceased, A.2 cut the petty coat and while A.1 and A.3 caught hold of her hands, A.2 committed rape on her. While A.2 tied both her hands, A.3 raped her and subsequently, A.1 and finally, A.4 committed rape on her one by one. A.1 to A.4 in order to screen the offence of rape with a common intention to murder the deceased, A.4 throttled her to death. Subsequently, A.1 severed the neck of the deceased with a sickle when A.2 caught hold of the hands and A.3 and A.4 caught hold of legs. The bloodstained head was thrown into the bushes by A.4, A.1 threw the sickle one side and the basket carried by the deceased on another side. As the deceased was not found since the morning of 29.11.1999, P.W.1 gave a report to L.W.36 P.Ramesh Babu, Sub-Inspector of Police, Makkuva about the missing of the deceased on 30.11.1999 on the basis of which, a case in Crime No.46 of 1999 was registered. Ex.P.1 is the report. While so, on 16.12.1999, the dead body (skull and torse) of the deceased was found near Vadisela Metta. P.W.1 identified the dead body of the deceased as that of his daughter on the basis of black colour jacket and on the information furnished, the investigating officer altered the F.I.R. into 174 Cr.P.C. on 16.12.1999. L.W.36, the Sub-Inspector of Police, Makkuva examined the witnesses-P.Ws.1 to 3 and recorded their statements, got photographed the scene of offence through P.W.9, observed the scene of offence in the presence of P.W.10, seized the bloodstained clothes, controlled and bloodstained earth, conducted the inquest over the skull and torse at 2.00 p.m. and also at 4.00 p.m. on 16.12.1999 in the presence of inquest panchayatdars. Ex.P.16 is the inquest report. After conducting the inquest, he sent a requisition to the Medical Officer, Community Health Centre, Salur for conducting post- mortem over the dead body of the deceased i.e. skull and torse at the scene of offence as the body was highly decomposed and could not be carried to the Hospital. P.W.11 conducted the post-mortem examination over the skull and torse separately on 16.12.1999 from 4.15 to 5.15 p.m. at the scene of offence and he preserved the viscera contents for FSL examination and advised to send the skull for superimposition as it has no fractures. Exs.P.20 and P.21 are the post-mortem certificates issued by P.W.11. The investigating officer seized M.Os.1 and 2 from the bushes under Ex.P.15-seizure report. The investigating officer arrested A.1 on 24.12.1999 at 6.00 A.M. and A.2 to A.4 on 25.12.1999 at 9.00 a.m. and seized M.Os.4 to 9. P.W.16, Professor, Head of Department of Medical Forensic Science issued Ex.P.29 and opined that the body is identified as sex of female aged about 16 years and no exact opinion regarding time of death was given since the body was highly decomposed. After completion of investigation and on receipt of relevant reports, the investigating officer laid the charge sheet against the accused. 3. The charges framed against the accused are as under: “Firstly: That A.1 to A.4 of you on or about the 29th day of November, 1999, at about 9.00 a.m., while Raghumandala Hemavathi, D/o. Apparao of Makkuva, while she was at her fields situated in Makkuva, kidnapped her with intent to cause her to be secretly and wrongfully confined, and that you thereby committed an offence punishable under Section 365 I.P.C. and within my cognizance. Secondly: That A.1 to A.4 of you on or about the same day and at the same time and near Vadisela Metta, committed gang rape on the said Raghumandala Hemavathi, D/o.Apparao, and that you thereby committed an offence punishable u/s.376 (g) I.P.C. and within my cognizance. Thirdly: That A.1 to A.4 of you on or about the same day and at the same time and place mentioned above, did commit murder by intentionally causing the death of the said Raghumandala Hemavathi, D/o.Apparao, and that you thereby committed an offence punishable u/sec.302 I.P.C. and within my cognizance. Fourthly: That A.1 to A.4 of you on or about the same day and at the same time and place mentioned above, knowing that certain offence punishable with death or imprisonment for live has been committed by all of you by murdering Raghumandala Hemavathi, did cause certain evidence of the said offence to disappear with the intention of screening yourselves from legal punishment by throwing dead body near the Vadiselametta after separating the head from the body of the deceased near Vadiselametta and thereby committed an offence punishable u/sec.201 I.P.C. and within my cognizance.” 4. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 16 and proved 29 documents under Exs.P.1 to P.29 and exhibited the case properties-M.Os.1 to 9. The accused were examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. They denied the same, but however, did not let in any evidence. 5. The Trial Court upon consideration of evidence on record, came to the conclusion that the circumstantial evidence adduced by the prosecution if taken as true and correct it would not lead to an irresistible conclusion that it is accused and they alone committed the offence and accordingly acquitted them. Hence, the present appeal by the State. 6. The point that arises for determination is whether the prosecution proved its case beyond all reasonable doubt for the offences with which the accused were charged? 7. We have heard the learned Public Prosecutor for State and also Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondents. 8. In dealing with the appeal against the order of acquittal, it must be shown by the prosecution that there are compelling and substantial reasons to interfere with the same. When the findings are not based upon any evidence or inadmissible evidence has been taken into consideration or perverse finding is given by the trial Court, then this Court can interfere with the same. A finding can be said to be perverse if it is not based upon proper appreciation of evidence on record. The Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 9. The entire case of the prosecution rests upon the circumstantial evidence. There is no evidence adduced by the prosecution to show that the accused and deceased went together on the date of incident i.e. on 29.11.1999. Even according to P.Ws.1 to 3, the deceased left the house in the morning on 29.11.1999 and that the dead body of the deceased was found 18 days thereafter i.e. on 16.12.1999. P.W.5, who stated before the police that he had seen the deceased talking with A.1 on 29.11.1999; P.W.6, who stated with the police in his statement that A.2, A.3 and A.4 committed the offence at Vadiselametta; and P.W.8 who stated with the police in his statement that A.2 used to follow the deceased while she was going to the school, turned hostile and did not support the case of the prosecution. Since the entire case of the prosecution rests upon the circumstantial evidence, the prosecution has to prove all the incriminating facts, evidence forming to be incompatible to the innocence of the accused. The circumstantial evidence must be complete and incompatible of explanation on any other hypothesis except that of the guilt of the accused and such evidence should not only to be consistent with the guilt of the accused but should be inconsistent with his innocence. P.W.2 deposed that herself, Manga, Vijaya and Parvathamma went to forest to collect firewood and they found the dead body of the deceased. But, in the cross-examination she deposed that she did not state before the police that the dead body belongs to deceased-Hemavathi. The prosecution has not established that the accused and deceased were last seen together and the identification of the dead body was so proximate to the theory of last seen together. M.O.2-sickle and M.O.3-bamboo basket were recovered from the fields but not from the possession of the accused. There is no evidence that the deceased was subjected to rape. Further the prosecution failed to establish the motive for causing the murder of the deceased by the accused nor any bitter relationship has been established between the accused and the deceased to connect the accused with the commission of offence. The prosecution built up the entire case on the so-called confession made by the accused. The material objects i.e. M.Os.4 and 5, pant and shirt seized from the possession of A.2; M.Os.6 and 7 pant and shirt seized from the possession of A.3; M.Os.8 and 9 seized from the possession of A.4 were not sent for F.S.L. for the purpose of establishing human blood with that of the deceased to connect the accused with the commission of offence. Further, the certificate-Ex.P.29 issued by the Professor, Head of the Department of Forensic Medicine which is an expert opinion with regard to skull bone shows that there are no anti-mortem bony injuries or fractures on items 1 and 2 i.e. skull, lower jaw; bone marros, from femur and stermum. Thus, in the absence of any link to complete the chain of circumstances to connect the accused with the commission of offence, the learned Sessions Judge rightly found that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and accordingly acquitted the accused. After going through the entire evidence adduced by the prosecution, we are not able to find any substantial or compelling reasons to interfere with the acquittal of the accused by reversing the acquittal order. We see no merit in the appeal. 10. In the result, the appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J AUGUST 24, 2010 Tsr.