THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.837 OF 2007 JUDGMENT: (per N.R.L.NAGESWARA RAO,J) The accused in Sessions Case No.41 of 2006 on the file of the Principal Sessions Judge, Kadapa who was convicted for the offences punishable under Sections 302, 328 and 384 I.P.C. and sentenced to undergo Imprisonment for Life by judgment dated 11.06.2007 is the appellant herein. The case of the prosecution is that the deceased J. Pedda Yanadaiah was the father-in-law of PW1 and about two months prior to the date of incident i.e., 17.07.2005, he performed the marriage of his son and fell in debts. The accused and the deceased are neighbours and close friends. Due to acquaintance, the accused was visiting the house of the deceased frequently and the deceased came to know that one can become rich by exchanging the original currency for fake currency and he discussed the same with the accused who was also in financial crisis. The accused was in contact with the deceased and they were having secret talks. The accused pressurised the deceased to secure money for such exchange to be arranged at 1:3 ratio. About twenty days prior to the occurrence, the deceased collected gold loan of Rs.32,500/- from Rayalaseema Grameena Bank and also obtained hand loan from Z.P. Pullaiah, J. Ramana, Lakshmi Narayana and M.Subbarayudu. On 16.07.2005, after collecting the amount, the deceased requested the accused to make arrangements for the exchange. Accordingly, they have planned to get the exchange of the currency on 17.07.2005 at about 8.00 P.M. and on the advice of the accused, the deceased followed to rail road and thereafter the deceased was found dead. On the next day, in the early morning, the dead body was noticed, information was given to the wife of the deceased and she lodged a complaint. Thereafter, the police have taken up the investigation and during the course of investigation, the statements of the witnesses were recorded, panchanama of the scene was conducted and the dead body was sent for post mortem examination. The police have arrested the accused on 21.07.2005 at 6.30 P.M., his confessional statement was recorded and in pursuance of his confession, cash of Rs.70,000/-(MO7) was seized. The accused also brought out MO6 plastic tin containing nitrate poison which was also seized by the police. Thereafter, the material objects were sent for analysis and after completion of the investigation, the accused was charged for the offences under Sections 364, 328, 302, 382 and 201 I.P.C. The case was taken on file as P.R.C.No.13 of 2005 by Judicial Magistrate of First Class, Badvel and committed the same to the Court of Sessions and the learned Sessions Judge after appearance of the accused framed the following charges: 1) “That you on 17.07.2005 around 8-00 P.M., after the railway track near Kotha Madhavaram village, you intentionally and knowingly caused the death of the deceased J. Pedda Yanadaiah by administering nitrate poison mixed with liquor and water to him and thereby you committed the offence of murder punishable under section 302 I.P.C. and within my cognizance. 2) That you on the day and time, place mentioned in charge No.1 above you administered nitrate poison mixed with liquor and water to the deceased J. Pedda Yanadaiah with an intention to cause his death and to commit theft of money from him and thereby you committed the offence punishable under Section 328 I.P.C. and within my cognizance. 3) That you on the day and time, place mentioned in charge No.1 above and committed the offence mentioned in charge No.1 and committed theft of Rs.70,000/- and the same was retained by you and thereby you have committed the offence punishable under section 384 I.P.C. and within my cognizance. 4) That on the day and time, place mentioned in charge No.1 above and after committing the offences mentioned in the charge No.1 above that you have committed the offence of murder punishable with imprisonment for life or capital punishment, to screen the said offence and to create the impression that the deceased J. Pedda Yanadaiah was not murdered you planted certain evidence that namely placing M.C. Brandy empty quarter liquor bottle and half cut lime pieces besides the deceased person with an intention to screen yourselves who are the offender from legal punishment and thereby committed the offence punishable under Section 201 I.P.C.” for which the accused pleaded not guilty. On behalf of the prosecution PWs 1 to 12 were examined and Exs P1 to P18 and MOs 1 to 12 were marked. After the evidence of the prosecution is over, the accused has been subjected to examination under Section 313 Cr.P.C. No defence evidence is adduced. After considering the evidence on record and basing on the circumstantial evidence learned Sessions Judge found the accused guilty of the offences and accordingly convicted him. Aggrieved by the said judgment, the present appeal is filed. Heard the learned counsel Sri D. Kodandarami Reddy for the appellant and also learned Public Prosecutor. The points that arise for consideration are: 1) Whether the accused has induced the deceased to get money for exchange of original currency for fake currency to enrich himself. 2) Whether the prosecution has proved that the accused has committed murder of the deceased and also committed theft of the cash collected by the deceased. 3) Whether the circumstances relied on by the learned Sessions Judge are conclusive to hold that the accused committed the offence. 4) Whether the conviction and sentence imposed by the learned Sessions Judge is legal and sustainable. POINTS: In support of the case of the prosecution, PW1 the daughter- in-law of the deceased deposed that on 16.07.2005 at about 7.45 P.M., the accused made enquiries about the deceased and he waited till the deceased returned from the temple and he sat on the pial along with the deceased and there was secret conversation between both of them and on the next day, on 17.07.2005, the accused came to the house again and there was conversation between them. While leaving the house, the accused stated to the deceased to come near the rail road at 8.00 P.M., so that the work could be completed. Accordingly, the deceased has taken a sum of Rs.70,000/- available in his house in a jalli (MO1) after performing puja to the God and in spite of questioning by his wife as to where he was going he did not respond and on the other hand, chastised her. On the next day morning, they came to know about the death of the deceased. In the cross examination, she stated that on the next day of the incident MO1 was given to the police and she also admitted that the deceased was not addicted to drinking. According to her Ex.P1 was given by the wife of the deceased, who is no more. She stated that her husband is a deaf man. PW2 is said to be a Head Master in Upper Primary School at Chinna Kothapalli. He deposed that on 18.07.2005, when he went near the scene, he found the dead body of the deceased and he went and informed the same to the son of the deceased. Then all of them came to the scene. He did not support the prosecution version as mentioned in Ex.P2. The evidence of PW3 who is elder brother of the deceased is that on 17.07.2005 at 5.00 P.M. he observed the accused conversing with the deceased and he heard accused stating to the deceased to come to the rail road at about 8.00 P.M. and accordingly, he saw the deceased proceeding at about 8.00 P.M. On the next day, he came to know about the death of the deceased. He further deposed that the wife of the deceased informed him that the deceased took a sum of Rs.70,000/- after performing pooja and the said amount was pooled by the deceased by borrowing from others. It was further stated by him that the deceased performed the marriage of his son without taking any dowry and he felt that he was borrowing the money for that reason only and that he is suspecting the accused for the offence. PW4 is said to be waiting at the bus stop on 17.07.2005 at about 8.15 P.M. and he saw the deceased coming there. Deceased moved there for about 15 minutes. Thereafter, the accused came there by an auto and got down and on seeing the accused the deceased proceeded towards railway track and some time later the accused also followed. On 18.07.2005 at 8.00 A.M. he came to know about the death of the deceased. The evidence of PW5 is that on 17.07.2005, the deceased died and on the road he saw the accused coming with a bag in his hand and accused stated that he came there in a lorry and was going to his house. He did not elaborate anything about the incident. The evidence of PW6 is that on the date of incident at about 9.00 or 9.30 P.M. the accused came to his wine shop, purchased liquor and went away. The evidence of PW7 is that on 17.07.2005 when he got down at Madhavaram bus stop at about 8.45. P.M. the accused called him and both of them went into the village and thereafter he went to his house. The evidence of PW8 is about his presence at the time of inquest over the dead body of the deceased and at the time of seizing the material objects. He also deposed about the arrest of the accused on 21.07.2005, giving voluntary confessional statement by the accused and producing cash of Rs.70,000/-. The evidence of PW9 who is a Civil Assistant Surgeon is about conducting of post mortem examination over the dead body of the deceased and reserving opinion pending analysis and on the basis of the F.S.L. report, he opined that the death was due to nitrate chemical poisoning. The evidence of PW10 is that he was a cashier in wine shop at Mahavaram and on 17.07.2005 at 7.30 P.M., the accused came and purchased liquor and went away. The evidence of PWs 11 and 12 is about the investigation done by them in this case. Learned counsel for the appellant contends that there is no direct evidence to prove the guilt of the accused and the circumstances pleaded by the prosecution and accepted by the lower court are not conclusive. The motive pleaded by the prosecution is not established and further more there is absolutely no evidence of the accused and the deceased going together prior to the incident and on the other hand, there is controversy in the evidence of PW4 and PW6 and that the seizure of the properties is also doubtful. MO6 which is said to be a tin containing poison is also not sent for F.S.L. examination and therefore, he prayed for acquittal of the accused. The learned Public Prosecutor contends that from the evidence of PWs1 and 3 it is quite clear that the deceased and the accused have got meeting on 17.07.2005 and a day earlier and there is also positive evidence of the accused requesting the deceased to come to a particular place at about 8.00 P.M. and accordingly, the deceased went to that particular place at about 8.00 P.M. with cash and therefore, the irresistible conclusion is that the accused has directed the deceased and has taken him to the scene of offence and committed the murder. The essence of the prosecution case is that the deceased is said to be in debts and therefore, to get over the financial liabilities, he wanted to exchange the real currency for fake currency. When such is the basis of the motive, the prosecution should have examined the witnesses to whom the deceased was indebted. Further more, the deceased said to have pooled the money by borrowing from several persons and none of the persons who have given such huge amount to the deceased were examined by the prosecution. Even otherwise, the evidence of PW1 who is the daughter-in-law of the deceased and the evidence of PW3 who is the brother of the deceased does not show of any financial crises of the deceased. Therefore, the finding of the learned Sessions Judge that the deceased was in financial crises and was indebted to others after performing the marriage of his son is not supported by any acceptable evidence and it is nothing but a surmise based on the allegations made in the complaint and the charge sheet. The evidence of PW3 about borrowing the amount from others is quite different and it is not for the purpose of the marriage of the son of the deceased. In fact all these borrowings are said to be prior to the plan of exchange of the fake currency and not prior to the marriage of the son which is said to be the reason inducing the deceased to have an understanding with the accused for exchange. Therefore, the first circumstance relied on by the learned Sessions Judge which is the basis for the agreement is not established. It is true that as found by the learned Sessions Judge the deceased and the accused have got meetings in the evening of 17.07.2005 and also a day earlier but none of the witnesses could say as to what is the nature of conversation they had. From the version of PW1, the accused and the deceased are neighbours and close friends and as such no inference can be drawn that the accused and the deceased had a talk about the plan of exchanging real currency for fake currency. If this circumstance is also excluded from consideration for want of evidence about the particulars of the discussions, the finding of the learned Sessions Judge on this aspect also cannot be accepted. The only question that falls for consideration is whether the deceased and the accused have gone together to the scene of offence prior to the commission of the offence. Touching this aspect, we have got the evidence of PWs 4 and 6. The evidence of PWs 4 and 6 does not stand to scrutiny as reliable. According to the evidence of PW4 at about 8.15 P.M., the deceased came to the bus stand and moved there for some time and it is not his evidence that he has got any discussion with the accused and that he made enquiries as to the purpose of coming to that bus stand and thereafter, the accused is said to have come there and waited for some time and the deceased went towards the railway track. It does not show that the accused and the deceased have gone together and his evidence shows that the accused went separately. Therefore, it cannot be taken as a case of the accused and the deceased seen together to place reliance on the evidence of PW4. So far as the evidence of PW5 is concerned according to him he found the accused coming from the side of the bridge and he does not speak as to the finding of the deceased near the scene. So far as the evidence of PW6 is concerned on the date of incident at about 9.00 or 9.30 P.M., the accused came to the shop, purchased liquor and went away. Therefore, the above evidence clearly goes to show that the accused and the deceased were not seen together even at 9.00 or 9.30 P.M. There is absolutely no evidence on record to accept that the murder of the deceased has been committed between 8.00 P.M. and 9.00 P.M. and in such circumstances, the evidence of these witnesses will not in any way help the prosecution case. On the other hand, the evidence of PW7 shows that at about 8.45 P.M. he got down at the Madhavaram bus stand and followed the accused into the village and therefore, the possibility of the accused going to the railway track and committing any offence is also doubtful. Therefore, the circumstances, to conclude that the accused has taken the deceased to the railway track and committed the murder is highly improbable. The only fact that remains to be considered is whether the seizure of Rs.70,000/- at the instance of the accused in pursuance of the confession can be taken into consideration. There cannot be any identity of the cash to be established by positive evidence of PWs 1 and 2 and according to the learned counsel for the appellant, the appellant is not claiming that money and it can be a case of planting for any reason to implicate the accused. The prosecution also could not prove, the cash recovered was in fact the cash borrowed from others and kept in the house of the deceased and was taken along with the deceased before his death. MO1 which is said to have been seized later is not proved to be correct. Therefore, for all the above circumstances, we find that the accused is entitled for a reasonable benefit of doubt and the chain of the circumstances pointing the guilt of the accused is very very weak and do not form a complete chain to establish his guilt. The manner of commission of the murder is also not proved. There is also no proof that the accused has administered nitrate poison and caused the death of the deceased. The fact that the plastic bottle which contained nitrate poison said to have been seized from the possession of the accused was not sent to F.S.L. for the reasons best known to the prosecution and the evidence of Investigating Officer is also not clear as to the reason why he has not sent the bottle to the F.S.L. examination. Therefore, the manner in which the accused said to have committed the murder is also in cloud. In the result, the Criminal Appeal is allowed by setting aside the conviction and sentence recorded by the Principal Sessions Judge, Kadapa vide judgment dated 11.06.2007 in Sessions Case No.41 of 2006 against the appellant-accused for the offences under Sections 302, 328 and 384 I.P.C. The appellant-accused is found not guilty and he is acquitted of the charges. The fine amount, if any, paid by the appellant-accused shall be refunded to him and the accused shall be released forthwith, if he is not required in any other case. K.C.BHANU,J N.R.L.NAGESWARA RAO,J Dt. 22.12.2010 lvl THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.No.837 OF 2007 (Judgment delivered by NRLN,J) Dt. 22.12.2010