THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.203 of 2007 ORAL JUDGMENT: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard learned counsel appearing for the appellant as well as learned Public Prosecutor, appearing for the respondent-State. 2. Appellant is sole accused in Sessions Case No.27/S/2004. 3. This Criminal Appeal is directed against the judgment, dated 30.11.2006, passed by the Special Sessions Judge-cum-IV Additional District and Sessions Judge, Guntur, in S.C.No.27/S/2004, convicting the accused of the offence punishable under Section 302 of the Indian Penal Code (for brevity “I.P.C.,”), and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/, in default to suffer simple imprisonment for three months; under Section 379 I.P.C., and sentencing to suffer rigorous imprisonment for one year and under Section 201 I.P.C., and also sentencing to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for three months and directed that all the sentences shall run concurrently. 4. The case of the prosecution, in brief, is that the accused and the deceased are residents of same village by name Inumella of Ipur Mandal; that the deceased was a shepherd working for one Bathula Pullaiah-L.W-2, who died after filing of the charge sheet and before commencement of the trial; that the deceased was engaged by Bathula Pullaiah-L.W-2 to drive the goats to the bushes, attached to the village, for grazing purpose; that the accused, who was also a shepherd and was addicted to bad vices, acquainted intimacy with the deceased with a view to commit theft of the goats from his custody; that when the deceased along with the goats went to the bushes, the accused followed him and at that point of time, the deceased was asked by P.W-9 to drive the goats to some other place as it would damage his mirchi garden; that the accused taking advantage of the situation, put the deceased in some conversation and simply followed him into the midst of the forest and thereupon, the accused suddenly fell on the deceased with some blunt object and brutally murdered him and concealed the dead body of the deceased in the midst of brier bushes and committed theft of 32 goats in order to dispose them in Vinukonda shandy; that P.W-2 found the accused along with the goats and suspected that the goats might have been committed theft by him; that P.W-3 bargained a goat for Rs.750/- and then the accused drove the remaining thirty goats in a lorry to the shandy at Vinukonda; that the accused informed P.W-4 that he is prepared to sell the said goats for his personal expenses; that P.W-4 contacted a party belonging to Madras and sold away the thirty goats for a sum of Rs.17,350/-; that later, the accused proceeded to Vinukonda along with the sale proceeds; that on the night of the same day i.e., on 26.04.1999, the accused went to the house of P.W-10 and requested to effect compromise with his wife and stated that he brought money by selling his land at his native; that later, on the same day, as the deceased did not return to the house of Bathula Pullaiah (L.W-2), he began searching for the deceased; that in that process, he was informed by P.W-9 about the deceased driving the goats towards the western side of his land; that P.W-7 informed that he saw the accused proceeding towards the place where the deceased was grazing the goats; that during their enquiry, P.Ws.6 and 7 contacted P.W-5 and learnt about the arrival of the accused to the shandy along with 30 goats and selling them to Madras party; that P.W-4 confirmed about the selling of thirty goats; that thereupon, on 29.04.1999, P.W-1 went to Ipur Police Station and presented a report to P.W-17-Sub-Inspector of Police, who registered the same as a case in Crime No.25 of 1999 for the offences punishable under Sections 302, 379 and 201 I.P.C. along with Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and hat after completion of all the formalities, the charge sheet was filed. 5. When the charges framed against the accused for the offences under Sections 302, 379 and 201 I.P.C., and under Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, were read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined P.Ws.1 to 19 and got marked Exs.P-1 to P-25, besides M.Os.1 to 12, on its behalf. On behalf of defence, no oral or documentary evidence was adduced. 7. The Court below, having appreciated the entire evidence, both oral and documentary, available on record, found the accused guilty of the offences punishable under Sections 302, 379 and 201 I.P.C., and accordingly, convicted and sentenced him, as stated supra. Aggrieved by the same, the accused has preferred the present Criminal Appeal. 8. It is the contention of the learned counsel appearing for the accused that there is no evidence as regards the death of the deceased. 9. In other words, it is the contention of the learned counsel appearing for the accused that unless and until the death of the deceased is established, merely because there are other circumstances, which were allegedly committed by the accused, it cannot be presumed that the deceased died. It is her further contention that P.W-1, who is no other than the father of the deceased, was a blind person and it is the case of the prosecution that he identified the belongings like shirt, towel, etc., which were on the body of the deceased, at the time of his death, as that of the deceased. Therefore, such identification, by a person like P.W-1, who is blind, cannot be relied on in order to arrive at a conclusion that they were the belongings of the deceased and consequently, it cannot be further presumed that the deceased died. 10. On the other hand, the learned Public Prosecutor appearing for the respondent-State contends that there are other circumstances, which can be relied on for the purpose of drawing an inference that the accused was solely responsible for the death of the deceased, particularly in the light of the evidence on record in relation to selling away of the goats at Vinukonda shandy and the recovery of the sale proceeds from him. 11. In the light of the respective contentions, the points that fall for determination, in this Criminal Appeal, are as follows: 1. Whether the trial Court was right in arriving at a conclusion that the deceased died? 2. Whether the death of the deceased was established? 3. Whether the trial Court was right in its approach in appreciating the evidence on record, while recording the order of conviction of the accused for the offences under Sections 302, 379 and 201 I.P.C.? 12. In this regard, first of all, it is to be seen that it is not in dispute that the dead body of the deceased was not found in any shape. It was only the femur bone, skull and mandible that were found from the bushes. In the F.S.L. reports, marked as Exs.P-21, 23 and 24, it was analyzed that the blood found on M.Os.1 to 3 is of human origin. The letter of advice expressing the opinion is marked as Ex.P-25. Further, P.W-16-expert issued Ex.P-18 opining that the bones sent to him were of human origin. 13. But, from the above two circumstances i.e., recovery of the bones from the nearby bushes where M.Os.1 to 3 were found and the opinion of the expert, under Ex.P-18, it cannot be conclusively said that it was the deceased who died. 14. In other words, it cannot be said that those bones belong to the deceased only. When there are advanced scientific methods like D.N.A. test, which are more conclusive, the same were not resorted to during the course of investigation into the case. 15. In our view, in a situation like this, the investigating agency ought to have subjected those bones to D.N.A. test to determine as to whether those bones actually belong to the deceased in order to arrive at a conclusion that the deceased is, indeed, dead. 16. Therefore, in the absence of any such recognized or established scientific proof, we cannot jump at a conclusion that those bones were that of the deceased and the deceased alone died. 17. In this connection, it is the submission of the learned Public Prosecutor that as per the medical evidence, injuries were also found on the skull. 18. Even this factor also cannot be a conclusive one, inasmuch as, the said injuries could not be identified as to whether they are ante- mortem or postmortem in nature for the reason that such bones were recovered after about two months from the date of offence i.e., precisely on 05.06.1999. Therefore, in such circumstances, it is hard to arrive at a conclusion that the deceased died. 19. Further, as contended by the learned counsel appearing for the accused, the belongings of the deceased like shirt, towel, etc., which were recovered from a nearby place, where the bones were recovered, were allegedly identified by P.W-1. It is not in dispute that P.W-1 is a blind person. In such a case, it is incomprehensible as to how a blind person can identify the articles that were recovered as belonging to that of the deceased. We can understand if those articles were identified by any other proximate or intimate person to the deceased like his mother, brother or sister with identification particulars, but nothing of that sort appears to have taken place in the instant case. 20. Therefore, exclusively basing on the evidence of P.W-1, who identified the belongings like the shirt, towel, etc., that were recovered from the alleged scene of offence, as that of the deceased, and in the absence of any positive or conclusive evidence regarding the death of the deceased, we cannot proceed with the case on the footing that the deceased died and the said death was at the hands of the accused. Therefore, it is hard for us to proceed on the assumption that the deceased was killed, in order to convict the accused for the offence punishable under Section 302 I.P.C. 21. The next aspect that has to be referred to is regarding the offence alleged to have been committed by the accused under Section 379 I.P.C. 22. In this regard, it is to be seen that the goats actually belong to one Bathula Pullaiah-L.W-2, who died subsequent to the filing of the charge sheet. No complaint whatsoever was made by him. In the absence of any such complaint, the question of anybody committing theft of the goats belonging to Bathula Pullaiah-L.W-2, particularly by the accused, cannot be accepted and there is no plausible explanation from any of the witnesses as to whom the goats were sold. 23. P.W-4, who is the mediator/broker at Vinukonda shandy, also was not precisely able to say whether it is Madras party or Bihar party who purchased the goats from the accused. No descriptive particulars of such party were furnished either by P.W-4 or by any other witness. In such an event, we cannot just jump at a conclusion that the goats were sold away by the accused to Madras party through P.W-4. It is to be further seen that, in this connection, P.W-4 deposed in the court after a long gap of about 7 or 8 years after the incident. 24. Therefore, the charge framed against the accused under Section 379 I.P.C., and the conviction recorded thereon also cannot be sustained. 25. Coming to the conviction recorded against the accused under Section 201 I.P.C., it is again to be seen that we have already recorded our reasons to disbelieve the evidence on record, while recoding our view that the death of the deceased was not at all proved by the prosecution either by direct or circumstantial evidence or by any established or recognized scientific methods. Therefore, the question of conviction of the accused under Section 201 I.P.C., also does not arise. 26. For the aforementioned reasons, we are of the view that appreciation of the evidence on record by the trial Court cannot be accepted and the impugned judgment is liable to be set aside and is, accordingly, set aside. 27. In the result, the Criminal Appeal is allowed, setting aside the judgment, dated 30.11.2006, passed by the Special Sessions Judge-cum-IV Additional District and Sessions Judge, Guntur, in Sessions Case No.27/S/2004, convicting and sentencing the appellant-accused-Bathula Anjaiah, Son of Bikshalu, for the offences under Sections 302, 379 and 201 I.P.C. The appellant-accused shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any, paid shall be refunded to the appellant-accused. ___________________ JUSTICE D.S.R.VARMA _____________________ JUSTICE R.KANTHA RAO Dated:13.10.2009 dr