THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal M.P.No.2243 of 2009 and Criminal Appeal No.1840 of 2009 Date: 16-12-2009 Criminal Appeal M.P.No.2243 of 2009: Between The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad … Petitioner/Appellant and Ayyapu Ramakrishna Reddy and another … Respondents/Accused Criminal Appeal No.1840 of 2009: Between The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad … Appellant and Ayyapu Ramakrishna Reddy and another … Respondents/Accused THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal M.P.No.2243 of 2009 and Criminal Appeal No.1840 of 2009 Oral Judgment: (per D.S.R.Varma, J.) Heard the learned Public Prosecutor appearing for the appellant-State and Sri M.Ramachandra Reddy, learned Counsel appearing for the respondents-accused. 2. Criminal Appeal M.P.No.2243 of 2009:- Having regard to the facts and circumstances stated in the affidavit filed in support of this petition, the delay of 522 days in presenting the appeal is condoned. 3. This appeal is preferred by the State against the judgment of acquittal, dated 27-12-2007, in Sessions Case No.114 of 2007, passed by the VII Additional Sessions Judge, Madanapalle, Chittoor district. 4. The case of prosecution, in brief, is that P.W.1 is the brother, P.W.2 is the wife and P.W.3 is the son of one Kummara Munirathnam (hereinafter referred to as ‘the deceased’); that accused No.1 used to work under the deceased in winding works since several years an he also used to have food in the house of deceased; that now and then accused No.1 and the deceased used to take liquor; that accused No.1 gave some amount to the deceased as a hand-loan, but he was not insisting for the repayment because of his illegal contacts with P.W.2; that having come to know about the illegal contacts, the deceased warned accused No.1 and asked him not to stay in his house, despite which accused No.1 continued his illicit intimacy and he decided to kill the deceased by giving sleeping pills in liquor; that on 26-02- 2006 at about 8 p.m., accused No.1 along with accused No.2 came to the house of deceased and asked him to come along with them to Mogili temple for darshan of Lord Siva; that the deceased accompanied accused 1 and 2; that they consumed beer near the poultry farm in the outskirts of Muthukur village; that since the deceased wanted to have some more liquor, they went to Karasanipalli village; that when the deceased stayed at the Panchayat office, accused 1 and 2 went to the belt shop of P.W.10, purchased 3 Knock-out beer bottles and all of them consumed beer behind the Panchayat office and threw the empty bottles there itself; that then accused No.1 brought tea for the deceased, mixed with sleeping pills powder and some portion of the tea was consumed by the deceased; that later both the accused brought the deceased near a well, killed him by keeping a stick on his throat and by pressing the same from both sides; that then accused No.1 throttled him to death; that later they shifted the body of deceased to the metal road connecting Muthukur and Karasanapalli villages and absconded; that on 27-02-2006 on the complaint of P.W.1, P.W.15 registered a case in Crime No.8 of 2006 for an offence under Section 174 of Cr.P.C., and took-up investigation; that subsequently on 22-3-2006 P.W.15, who is the Investigating Officer, altered the Section of law into Section 302 of IPC basing on the opinion of P.W.16, autopsy surgeon and that after completing all the formalities, a charge-sheet was filed. 5. The accused pleaded not guilty to the charge framed under Section 302 of IPC and claimed to be tried. 6. In order to establish its case, the prosecution has examined P.Ws.1 to 17 and marked Exs.P-1 to P-16 and also M.Os.1 to 7. No oral or documentary evidence was adduced on behalf of the accused. 7. The trial Court after gone into the evidence on record recorded the finding that the accused cannot be held to be responsible for the death of deceased and accordingly acquitted them. 8. Aggrieved by the said judgment of acquittal, the State has filed the present appeal. 9. Now, the point that arises for consideration in this appeal is as to whether the trial Court was right in recording the finding of acquittal against the accused ? 10. Point:- The entire case of prosecution revolves around the circumstantial evidence of the crucial witnesses, who are P.Ws.1 to 3 and 9. 11. As per the evidence of P.Ws.1 to 3, accused 1 and 2 came to the house of deceased at Muthukur village at about 8 p.m., on 26-02-2006, called the deceased to follow them to Mogili temple and accordingly he followed them. The evidence of P.W.9 shows that on Shivarathri Festival day of the year 2006 i.e., on the date of incident both the accused came to her at about 8 p.m., and purchased 3 beer bottles from her. 12. In view of the above evidence of P.Ws.1 to 3 on one hand and that of P.W.9 on the other, the prosecution has to explain as to how accused 1 and 2 came to the house of deceased at Muthukur village at about 8 p.m., on 26-02-2006 when both the accused were present before P.W.9 at about 8 p.m., on the same day, that too without the company of the deceased. 13. Another witness P.W.10 did not support of the case of prosecution. It is the case of prosecution that on 26-02-2006 at about 9.30 p.m., accused 1 and 2 went to the kirana shop belonging to P.W.10 at Karsanapalli village and purchased 3 Knock-out beer bottles. During cross-examination, it was put to P.W.10 that some time thereafter, accused 1 and 2 came to her, had tea from her shop and taken another tea for somebody. But, there was no proper explanation as to what had happened to another 3 beer bottles. 14. Further, it was pointed out by the trial Court in the impugned judgment that as per the evidence of P.W.9, both the accused purchased 3 beer bottles from the shop of P.W.9 at about 8 p.m., on 26-02-2006 and both the accused purchased 3 more beer bottles from the shop of P.W.10 at about 9.30 p.m., on the same day, but the prosecution seized M.Os.5 to 7 beer bottles, which are three in number, only. It was further noticed that even according to the prosecution version, both the accused only went to the shop of P.W.10 at about 9.30 p.m., and even at that time, the deceased was not seen by her along with them. 15. Further, both the accused were seen by P.W.10 at about 8 p.m., on the date of occurrence without the company of deceased. Similarly, at the same time and on the same day both the accused were seen by P.Ws.1 to 3 at the house of deceased with the company of deceased. 16. Therefore, in view of the above discrepant versions of P.Ws.1 to 3 on one hand and P.W.9 on the other as regards the company of deceased with the accused is doubtful and the last seen theory propounded by the prosecution had got shattered. This is the only strong circumstance in the entire case of prosecution. 17. Settled law is that in cases of circumstantial evidence, the sole incident is not sufficient but the same must be corroborated by other incriminating material and the entire material on record shall be capable of forming into a chain and in turn, capable of shackling the accused for the offence he is charged with. 18. In the case on hand, there are no other circumstances except the last seen theory. Even that theory is not proved at all, because of the variant versions of P.Ws.1 to 3, and 9 and 10 in their evidence. Most importantly, the deceased was not seen by any of these witnesses in the company of accused, except saying that the accused picked up the deceased at 8 p.m., on the date of occurrence along with them. Even that was falsified by the evidence of P.W.9. In such doubtful circumstances, the evidence on record, particularly with that of the aid of last seen theory, it is hard to point the accused with the guilt which they are charged with. 19. We have read the judgment of the trial Court and we do not find any misappreciation of evidence on record by the trial Court in the impugned judgment. 20. For the foregoing, we see no merit in the appeal. 21. In the result, the criminal appeal is dismissed, confirming the judgment under appeal. ___________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 16th December, 2009. Ak THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal M.P.No.2243 of 2009 and Criminal Appeal No.1840 of 2009 (Judgment of the Division Bench delivered by DSRV, J.) 16th December, 2009.