THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 54 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) 1. This Criminal Appeal is directed against the judgment dated 22.12.2006 in Sessions Case No.175 of 2006 on the file of the V Additional Sessions Judge, Tirupati, whereunder and whereby the appellant/sole accused was found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1908 (for short, ‘I.P.C.’), accordingly convicted and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- in default to suffer rigorous imprisonment for a period of two years. 2. The case of prosecution, in brief, may be stated as follows: The accused married one Swapna, who is eldest daughter of P.W.4 and Ramachandraiah. At the time of marriage, they promised the accused to give vacant land at their house in Tirupati. Sunil Kumar (hereinafter referred to as ‘the deceased’) is their son. He was working as goldsmith in Kadapa. In February, 2005, they went to Kadapa where their son was residing. Thereafter, the accused and his wife started residing in their house on a monthly rent of Rs.400/-. The house and vacant site is situated in 15 Ankanams area and the same is worth Rs.2,00,000/-. On 01.02.2006, the deceased went to Tirupati for Darshan of Lord Venkateswara in Tirumala, and met the accused, who is his brother-in-law. The accused took the deceased to Chittoor on the pretext of going to Mulbagal to see his parents, with an intention to murder him in some place. Then, he convinced the deceased to go back to Tirupati and both left Chittoor in a bus to Tirupati. They left Chittoor at about 4.30 AM on 02.02.2006 and reached Kasipentla village at 5.30 AM. The accused stopped the bus at Kasipentla and got down from the bus along with the deceased on the pretext of answering calls of nature and took the deceased to Mabbunarvagunta Reserve Forest by the side of railway track near Kasipentla village. There, the accused took the opportunity, pounced upon the deceased and pressed his neck. As the accused is an able bodied person, the deceased, being young boy and weak, could not resist the accused, and became unconscious and was struggling for life. The accused threw him in a pit which was dug for vanka and gave a blow on his head with a big stone, as a result of which, the deceased died on the spot. Then, the accused went away to Tirupati. On a complaint given by P.W.1 about noticing of dead body, police registered the case, conducted inquest over the dead body in the presence of mediators and sent the dead body for postmortem examination. Police recorded statements of witnesses, drafted rough sketch of scene of offence, got photographed the dead body, seized blood stained clothes, blood stained earth and control earth, one big stone with blood stains at the scene of offence. On 10.02.2006 at 7.00 AM in Kasipenta, the accused appeared before P.W.1 and admitted commission of the offence. P.W.1 drafted the confessional statement in the presence of P.W.12, and produced the accused along with the statement before Chandragiri police, who arrested him. In pursuance of the confessional statement of the accused, he led police and panchayatdars to his house where they seized blood stained pant and shirt used by the accused while committing the offence, under cover of panchanama. After completion of investigation, police laid the charge sheet. 3. The trial Court framed the following charge against the accused. “That you the accused on 02.02.2006 at about 4.30 a.m. or 5.30 a.m. did commit murder by intentionally causing the death of Suneel Kumar, s/o. Ramachandraiah by pressing his neck and beating him with stone and that you the accused thereby committed an offence punishable under sec.302 of Indian Penal Code and within the cognizance of Court of Sessions.” When the charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined P.Ws. 1 to 14 and got marked Exs.P1 to P18, besides case properties M.Os. 1 to 15. 5. After closure of prosecution side evidence, the accused was examined under Section 313 Cr.P.C. to explain the incriminating circumstances found against him in the evidence of prosecution witnesses. The accused denied the same and stated that he had no defence evidence. 6. The trial Court, upon appreciation of the evidence on record, found the appellant/accused guilty of the charge levelled against him, and accordingly convicted and sentenced him as above. Aggrieved thereby, the present Criminal Appeal is preferred. 7. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellant/accused beyond all reasonable doubt and whether the conviction and sentence recorded by the learned Sessions Judge are liable to be set aside or modified ? 8. The learned counsel appearing for the appellant contended that, Ex.P2-extra judicial confession alleged to have been made by the accused before P.W.1 was rightly disbelieved by the trial Court; that, except the interested testimony of P.Ws. 4 to 7, there is no other evidence; that, they did not speak about the presence of the accused in the company of the deceased either prior to the offence or after the offence; that the confession said to have been made by the accused to them cannot be said to be made voluntarily, because, on their own showing, it is clear that they threatened the accused to lodge a complaint to police against him; that, the circumstances relied upon by the prosecution cannot be so complete to form a chain to infer that it is the accused alone and none else, who is the assailant of the deceased. Hence, he prayed to set aside the conviction and sentence imposed on the appellant/accused. 9. On the other hand, the learned Public Prosecutor contended that, though P.Ws. 4 to 7 are closely related to the deceased, mere close relationship does not mean that their evidence has to be disbelieved on that ground; that, their evidence would clearly go to show that the accused gave a statement confessing about commission of the offence; that, there is no other reason for them to implicate the accused falsely in a case of this nature, unless the accused gave the extra judicial confession; that, from the circumstances established by the prosecution, the only inference that can be drawn is that the accused alone is the assailant of the deceased and none else; that, the trial Court, upon considering the evidence on record, rightly convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prayed to dismiss the Criminal Appeal. 10. There is no direct evidence to substantiate the case of prosecution. The case rests upon circumstantial evidence. When a case rests upon circumstantial evidence, the law is well settled that the following tests have to be satisfied by the prosecution as laid down by the Apex Court in a decision in Padala Veera Reddy v. State of Andhra Pradesh & others[1]: 1)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; 2)those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 3)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 4)the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Bearing the above principles in mind, it has to be seen that whether the circumstances adduced by the prosecution are sufficient to infer that the accused alone was responsible for causing the death of the deceased. 11. P.Ws. 10 and 12 are the inquest mediators when P.W.13 conducted inquest on the dead body of the deceased. Ex.P8 is the inquest report. The inquest mediators opined that the deceased died as a result of injuries. 12. P.W.11 is the Doctor, who conducted postmortem on the dead body of the deceased and found the following ante-mortem injuries. External: 1) Laceration of 2 x 1 cm, scalp deep, over right parietal eminence; 2) Abraded contusion of 10 x 6 cm over left part of forehead, temple and upper cheek; 3) Abraded contusion of 5 x 2 cm of helix of left ear pinna; 4) Contusion of 1 x 1 cm below wound no.6; 5) Contusion of 2 x 2 cm of left part of chin; 6) V shaped abrasion of 1.5 x 0.2 cm each limb, over front of neck, over lower part of thyroid cartilage; 7) Abrasion of 1 x 1 cm, 1 cm below wound no.6; 8) Abrasion of 2 x 1 cm, placed horizontally, over left side of neck, over left part of thyroid cartilage; 9) Abraded contusion of 2 x 1 cm, over back of right hand, 2 cm below the base of middle finger; 10) Abraded contusion of 5 x 1 cm, over front of left middle leg; 11) Abraded contusion of 7 x 4 cm, over back of left elbow; 12) Abraded contusions, 2 Nos. 6 x 1 cm each, 1 cm apart and parallel, placed obliquely, over outer aspect of left upper arm, with forward and downwardly placed front ends; 13) Abraded contusion of 3 x 2 cm, over top of left shoulder; 14) Abraded contusion of 3 x 3 cm over back of right lower chest, 7 cm from midline. Internal: 15) Contusion of 5 x 5 cm over right parietal area of scalp and right temporalis muscle; 16) Contusion of 4 x 4 cm over right occipital area of scalp; 17) Contusion of left frontal and temporal areas of scalp and left temporalls muscle; 18) Depressed comminuted fracture of 6 x 5 cm, 2 cm depth of left temporal bone and adjoining parietal bone. There is another depressed comminuted fracture of 2 x 2 cm, 1 cm depth in left part of frontal bone, 2 cm above and front (10” clock position) to the previous depressed fracture. There is a fracture 8 cm running horizontally in between 2 depressed fractures, involving frontal and parietal bones. There is another fracture of 22 cms running parallel and 3 cm above the fracture, involving left part of frontal and occipital bone and left parietal bone, in a curved manner. One more fracture of 18 cm extending between left mastoid process to right parietal eminence. 19) Fissured fracture of 8 cm involving right temporal and parietal bones above the ear with 2 cm fissured fracture going back in the middle; 20) Multiple fractures of base of skull involving middle cranial fossae and pituitary fossa; 21) Brain-1100 gms. Laceration of 10 cm of duramater corresponding the fracture over left frontal lobe. Subarachnoid haemorrhage more over inner aspect of left frontal and parietal lobes and cerebellum.” Ex.P9 is the postmortem certificate and Ex.P10 is the final report. The cause of death was due to head injury. From the above evidence, homicidal nature of death of the deceased is established. As a matter of fact, homicidal death of the deceased is not disputed even by the accused. 13. There is no dispute about the scene of occurrence, which is Heritage Dairy factory, on the way from Chennai to Chittoor. It is not in dispute that the deceased was working as an employee under a Goldsmith in Kadapa and he came to Tirupathi at the relevant point of time of the incident. It is the case of prosecution that the deceased came to Tirupati to have darshan of Lord Venkateswara and stayed in the house of the accused and P.W.7, who is his sister, and P.W.7 was not present at the time when the deceased came to the house of the accused. Dead body of the deceased was noticed by P.W.2-village servant. He promptly informed about the same to P.W.1, who was the then Village Secretary. Thereupon, P.W.1 lodged Ex.P1-report to police, who registered the case basing on the same. 14. Though the prosecution is also relying upon the evidence of P.W.9, who saw the accused and the deceased while getting down from bus near the place of occurrence in the early hours on the fateful day, his evidence has been disbelieved by the trial Court on the ground that P.W.9 was a chance witness. As seen from the evidence of P.W.9, it does not inspire confidence because he is not a witness of truth. In the first instance, he stated that he went to coolie work and in the afternoon he returned for taking lunch and then came to know about the incident, and that, after coming to know about the incident, he went to scene of occurrence and saw the dead body. In cross-examination, he admitted that he left to coolie work and returned to home at 6.00 PM, and he had not returned from coolie work between 6.00 AM and 6.00 PM. So, such is the case, there is no question of hearing about the finding about the dead body in the forest or about his going to the scene of occurrence or seeing them. 15. Further, P.W.9 had no acquaintance with the accused and the deceased prior to the incident. He had not seen them prior to the date of incident. Therefore, in such a situation, it is the duty of the investigating officer to conduct a test identification parade to test memory of P.W.9. He had a chance of seeing both the accused and the deceased during dawn time. P.W.9 could not say as to how he was in a position to identify both the accused and the deceased after lapse of a long time. It is not his case that there are some striking physical features of both of them imprinted in his mind so that he could recollect the same and identify them at a later point of time. Therefore, the trial Court has not rightly placed any reliance on the evidence of P.W.9. 16. Similarly, the trial Court has also not placed reliance on the evidence of P.W.1, for the reason that there is discrepancy with regard to giving of the report. According to P.W.1, he gave report to police at 10.00 AM. Similarly, P.W.12-the other person who signed in Ex.P2, which is said to be extra judicial confession, also stated that he along with P.W.1 handed over the accused and Ex.P2 to police at 10.00 AM. But, whereas, P.W.14, police officer, categorically stated that he received Ex.P2 at 9.00 AM. If that is so, Ex.P2 was brought into existence during the course of investigation. Statement made by an accused while in the custody of police, is inadmissible under law. Further more, it is highly improbable to believe that the accused, who is a stranger to P.W.1, went to the village of P.W.1, and gave Ex.P2-confessional statement. When the accused did not know P.W.1, the question of going to his house, may not arise and is highly improbable. For these reasons, the trial Court did not rightly place any reliance on the evidence of these two witnesses P.Ws. 1 and 9. 17. Now, the only evidence remains on record is the evidence of P.Ws. 4 to 7. They are closely related to the deceased. Mere relationship by itself is not a ground to discredit the testimony of prosecution witnesses, if their evidence is otherwise reliable, consistent and acceptable. Their evidence would go to show that, when they enquired the accused about the deceased, in the first instance, the accused informed them that the deceased came to the house at about 6.30 PM on 1.2.2006 and left the house saying that he had some work at Municipal Office. When the deceased was not to be seen, four days later i.e. on 6.2.2006, all these witnesses went to the house of the accused and questioned him. Similarly, a statement was made by the accused stating that the deceased had come to his house and left to municipal office. All these witnesses persistently asked the accused about the whereabouts of the deceased and they also threatened the accused that they would lodge a complaint to police. Thereafter, it is the case of prosecution that the accused gave the extra judicial confession stating that he took the deceased to forest and throttled his neck and beat him with big stone on his head. 18. The trial Court placed reliance on the evidence of these witnesses and found the accused guilty. The trial Court placed strong reliance on the evidence of P.W.7, who is none other than wife of the accused. Admittedly, she was not present when the deceased came to the house of the accused. She had not seen when the accused and the deceased were going together in the early hours of the day or during night time. Similarly, the other witnesses also did not speak about the presence of the accused in the company of the deceased. Therefore, the extra judicial confession that was given by the accused on threat, is the basis for conviction by the trial Court. It is well settled that, extra judicial confession, if it is found to be voluntarily made, true and trustworthy, there is no legal bar to base a conviction thereon. But, on the own saying of P.Ws. 4 to 7, all the witnesses gave a threat to the accused stating that they would give complaint to police. In such circumstances, under fear of threat, the accused might have confessed something, and the same cannot be said to be voluntarily given. Further, if the accused voluntarily gave the confessional statement, then nothing prevented them to lodge a complaint to police or bring it to the notice of the police. They did not lodge any complaint to police about the confession made by the accused to them till they were examined. It is stated that they went to police station at Tirupati, but the police refused to take complaint on the point of jurisdiction, and on the next day morning, they went to Chandragiri police station and gave the report. But, the investigating officer did not state that these witnesses lodged a complaint stating that the accused gave extra judicial confession before them. Therefore the alleged extra judicial confession made by the accused to these witnesses, cannot be accepted. Even if it has to be accepted, it cannot be said to be true and voluntary one. Even accepting the evidence of these witnesses of the prosecution, the alleged extra judicial confession was given by the accused under threat under fear of giving report against him to police. Except the uncorroborated evidence of extra judicial confession, there is no other evidence to connect the accused with the charge levelled against him. 19. Even if the evidence of P.Ws.4 to 7 is to be accepted as true, at best, it gives rise to a suspicion that the accused might have killed the deceased. But, suspicion, however strong, cannot take the place of legal proof. Therefore, the trial Court has not considered these aspects and simply placed reliance on the evidence of P.Ws. 4 to 7. Even that evidence is to be taken into consideration, it is not sufficient to base conviction. Therefore, in the absence of any legal evidence, it is not safe to convict the accused. The chain in the circumstances proved by the prosecution is not so complete so as to arrive at the conclusion that this crime was committed by the accused and none else. In view of the foregoing discussion, the prosecution failed to establish the guilt of the accused beyond reasonable doubt and so, he is entitled for benefit of doubt. 20. The Criminal Appeal is, accordingly, allowed setting aside the conviction and sentence recorded against the appellant/accused in the judgment dated 22.12.2006 in Sessions Case No.175 of 2006 on the file of the V Additional Sessions Judge, Tirupati. The appellant/accused is found not guilty of the offence leveled against him and is, accordingly, acquitted. The fine amount, if any, paid by him shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other case. -------------------------------- (A.GOPAL REDDY, J.) ----------------------- 15.06.2010 (K.C.BHANU, J.) DRK THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 54 OF 2007 (per the Hon’ble Sri Justice K.C.Bhanu) 15.06.2010 THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 54 OF 2007 Date: 15.06.2010 Between: N.Lakshmi Narayana …Appellant And The State of A.P. rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent [1] AIR 1990 Supreme Court 79