THE HON'BLE SRI A.ABHISHEK REDDY
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL No.857 of 2013
JUDGMENT: (Per Hon'ble Smt. Justice Juvvadi Sridevi)
This Criminal Appeal, under Section 374(2) of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the
appellant/accused, aggrieved by the judgment, dated 16.03.2012,
passed in S.C.No.568 of 2010 by the Principal Sessions Judge at
Khammam, whereby, the Court below convicted the
appellant/accused of the offence under Section 302 of IPC and
sentenced him to undergo imprisonment for life and to pay a fine
of Rs.500/-, in default, to undergo rigorous imprisonment for two
months.
2. We have heard the submissions of Smt. C.Vasundhara
Reddy, learned counsel for the appellant/accused, Sri C.Pratap
Reddy, learned Public Prosecutor appearing for the
respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
Chintamalla Sydulu (the deceased) was working as an unloading coolie at Chilli Market, Khammam. The deceased, Shaik Pasha (PW5) and the appellant/accused were close friends. The 2 AAR, J & JS, J Crl.A.No.857 of 2013 deceased fell in love with one Swathi (PW3) since one year prior the date of the subject incident and used to meet her at Grain Market at night hours daily, whenever he used to attend coolie work and also used to move closely with her. The appellant/accused used to consume toddy in the shop of PW.7 most often. While so, the deceased broke down his friendship with the appellant/accused over a petty reason. On 26.03.2010, at about 08.00 PM, the deceased went to the Grain Market area to meet PW.3, went to the toddy shop with his known friend, later came out and again visited the toddy shop at about 09.00 PM along with PW.5. At that time, the appellant/accused was consuming toddy with his friend with foodstuff i.e., two fried fish pieces. PW.5, who was in good terms with the appellant/accused, offered a piece of fried fish, but the appellant/accused refused, as he visited toddy shop with the deceased, who was not in good terms with him. However, PW.5 took a small bit from the food stuff and the appellant/accused abused the deceased by murmuring due to which, the deceased got wild and threw a toddy glass bottle over the appellant/accused, which was broken into pieces. Thereafter the appellant/accused and the deceased tried to fight against each other. The owner of the toddy shop, PW.5 and other customers witnessed the incident and pacified them. 3
AAR, J & JS, J Crl.A.No.857 of 2013 The appellant/accused got annoyed for the act done by the deceased at the toddy shop and decided to eliminate him and went away to the Grain Market area and was waiting for the arrival of the deceased, anticipating that the deceased would visit the place to see his lover i.e., PW3. After spending some time at the toddy shop with PW.5, at about 01.00 hours, the deceased was dropped at the scene of offence on the bicycle of PW.5, in order to meet PW.3. The appellant/accused, who was waiting for the deceased to take revenge, came to the deceased, found him in intoxicated condition, picked up a quarrel for his misbehavior at the toddy shop, pounced upon him, caught hold of his throat by pressing left hand, punched with right hand, hit him against a pan shop and kicked him with knee pad on his chest, stomach, testicle, etc. Since the deceased was in intoxicated condition, he could not resist the beatings of the appellant/accused and died on the spot. PW3 witnessed the incident and with the help of one B.Srinu (PW.8), passed on the message to 108 ambulance. The 108 ambulance staff reached the scene of offence and declared that the deceased died.
4. On receipt of the report lodged by PW.1/father of the deceased, PW.12-SI of Police, Bhadrachalam Town Police Station, registered a case in Crime No.64 of 2010 for the offence under 4 AAR, J & JS, J Crl.A.No.857 of 2013 Section 302 of IPC and issued Ex.P8-FIR and handedover the CD file to PW.13-CI of Police. PW.13 took up the investigation, rushed to the scene of offence, examined PW.1 and recorded his statement, examined PWs.2 to 7 and others, secured the presence of mediators i.e., PW.10 and LW.16-K.Ramu and prepared Ex.P3- Crime Details Form and drafted rough sketch, got photographed the scene of offence and the dead body of the deceased by PW.9- Photographer in the presence of the same mediators, conducted Inquest over the dead body of the deceased under Ex.P4, sent the corpse of the deceased for Post Mortem Examination, arrested the appellant/accused on 28.03.2010 and produced him before the Court for judicial remand. On his transfer, he handed over the CD file to LW.21-Ch.Venkateshwra Rao, Inspector of Police, Khmamam III Town Police Station. LW.21, after collecting necessary reports and after completion of investigation, laid charge sheet before the learned III Additional Judicial Magistrate of First Class at Khammam.
5. The learned Magistrate had taken cognizance against the appellant/accused for the offence under Section 302 of IPC, registered the same as P.R.C.No.14 of 2010 and committed the same to the Sessions Division, Khammam, under Section 209 of Cr.P.C., since the offence under Section 302 of IPC is exclusively 5 AAR, J & JS, J Crl.A.No.857 of 2013 triable by the Court of Session. On committal, the Court of Session numbered the case as S.C.No.568 of 2010 and made over the same to the Court below for disposal, in accordance with the law.
6. On the appearance of the appellant/accused, the Court below framed the charge against him for the offence under Section 302 of IPC, read over and explained to him, for which, the appellant/accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the appellant/accused, the prosecution examined PWs.1 to 13 and got marked Exs.P1 to P8.
8. PW.1-Ch.Venkateshwarlu is the de facto complainant. PW.2- Ch.Padma is the mother of the deceased. PW.3-B.Swathi is the lover of the deceased, who is stated to be an eye-witness to the subject incident. PW.4-B.Rajeswari and PW.5-Shaik Pasha are circumstantial witnesses. PW.6-Yerra Naga Prasada Reddy is the scribe of the Ex.P1-complaint. PW.7-Akula Vijaya is the owner of a toddy shop. PW.8-Bhukya Sreenu is the person who informed 108 Ambulance Services for shifting the deceased to the hospital. PW.9-P.Arun Kumar is a photographer, who photographed the dead body of the deceased. PW.10-G.Murali is a witness for Inquest Panchanama and Crime Details Form. PW.11-Dr.S.Papa 6 AAR, J & JS, J Crl.A.No.857 of 2013 Rao is the doctor who conducted autopsy over the dead body of the deceased and issued Post-Mortem Examination and Fianl Opinion. PW.12-M.A.Shukur is SI of Police who registered the subject Crime basing on Ex.P1 complaint and issued Ex.P8-FIR. PW.13-R.Veereswara Rao is the investigating officer. Ex.P1 is the complaint. Ex.P2 is the photographs. Ex.P3 is the Crime Details Form. Ex.P4 is Inquest Panchanama. Ex.P5 is the Post Mortem Examination Report. Ex.P6 is the Final Opinion. Ex.P7 is the RFSL Report. Ex.P8 is the First Information Report.
9. When the appellant/accused was confronted with the incriminating material appearing against him and was examined under Section 313 of Cr.P.C., he denied the same and claimed to be tried. On behalf of the appellant/accused no witnesses were examined and Ex.D1-Portion of statement of PW.3 recorded under Section 161 of Cr.P.C. was marked.
10. The Court below, having considered the submissions made and the evidence available on record, vide the impugned judgment, dated 16.03.2012, convicted the appellant/accused of the offence under Section 302 of IPC and sentenced him as stated supra. Aggrieved by the same, the appellant/accused preferred this appeal.
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11. Learned counsel for the appellant/accused would submit that the impugned judgment passed by the Court below is contrary to law, material on record and the probabilities of the case. The findings recorded and the conclusions reached by the Court below are based on unjustified assumptions and unwarranted inferences, which resulted in miscarriage of justice. There are serious material omissions and contradictions in the evidence of PW.3, which goes to the root of the matter and hence, it is unsafe to act upon her testimony. Further, there are material discrepancies in the evidene of prosecution witnesses. The appellant/accused is an innocent person and he was falsely implicated in the subject case. Though the subject incident took place at a public place, i.e. Grain Market and though there is evidence of PWs.3 and 13 to the effect that the loading and unloading work in the grain market area would take place at night time also and that there were some loading/unloading coolies at the time of subject incident, the prosecution, for the reasons best known to it, did not examine any other person except PW.3, who is the lover of the deceased. Further, the evidence of PW.3 and PW.5 do not corroborate with each other. There are laches on the part of investigating officer in the investigation of the case. The deceased did not die due to throttling, but died due to excessive consumption of alcohol. 8
AAR, J & JS, J Crl.A.No.857 of 2013 Further there are no eye-witnesses to the alleged throttling. The appellant/accused never made any assault on the deceased. There are no injuries on the body of the deceased, except nail marks on the neck. Without there being any evidence on record, the Court below erred in recording conviction against the appellant/accused for the offence under Section 302 of IPC. The findings of the Court below are based on assumptions and presumptions. There is no cogent and convincing evidence on record to convict the appellant/accused of the offence under Section 302 of IPC. The prosecution miserably failed to prove the guilt of the appellant/accused beyond all reasonable doubt. It is a fit case to set aside the conviction recorded against the appellant/accused and acquit him of the offence charged against him and ultimately prayed to allow the appeal by setting aside the conviction and sentence recorded against the appellant/accused.
12. Per contra, learned Public Prosecutor would submit that the evidence placed on record clinchlingly prove that the deceased was beaten to death by the appellant/accused. The deceased and appellant/accused are friends and used to consume toddy. On 26.03.2010 a quarrel took place between them. There were no cordial relations between them from two to three days prior to the date of occurrence of the subject incident. A galata took place 9 AAR, J & JS, J Crl.A.No.857 of 2013 between them with regard to the offering of food stuff while consuming toddy, whereupon, the appellant/accused abused the deceased and the deceased threw a glass bottle at the appellant/accused and tried to fight. Annoyed at the act of the deceased, the appellant/accused decided to eliminate him and with a pre-meditated mind, beaten the deceased to death. The deceased did not die due to asphyxia, as alleged. There are no material omissions and contradictions in the evidence of the prosecution witnesses. The evidence adduced by the prosecution clearly goes to show that it is the appellant/accused who caused the subject death of the deceased. The evidence of PW.3 is cogent, consistent and can be acted upon. The oral and documentary evidence placed on record clinchlingly proves that the deceased was throttled to death by the appellant/accused. All the necessary ingredients of the offence under Section 302 of IPC are made out against the appellant/accused. The Court below had appreciated the evidence on record in correct perspective and rightly convicted and sentenced the appellant/accused of the offence under Section 302 of IPC. The prosecution proved the guilt of the appellant/accused beyond all reasonable doubt. The judgment under challenge needs no interference by this Court and ultimately prayed to dismiss the Criminal Appeal.
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13. In view of the above submissions made by both sides, the points that arise for determination in this appeal are as follows:
1) Whether the death of the deceased-Chintamalla Sydulu is homicidal?
2) Whether the appellant/accused had caused the subject death of the deceased?
3) Whether the prosecution proved the guilt of the appellant/accused for the offence under Section 302 of IPC beyond all reasonable doubt?
4) Whether the conviction and sentence recorded against the appellant/accused of the offence punishable under Section 302 of IPC is liable to be set aside?
5) To what result?
POINTS:-
14. There is evidence of PW.11-Doctor coupled with Ex.P5-PME report and Ex.P6-Final Opinion to prove that the subject death of the deceased was homicidal and was caused on the intervening night of 26/27.03.2010. PW.11-Doctor deposed in his evidence that as per the final report, the cause of the death is due to throttling and the same is mentioned in Ex.P6-Final Opinion also. There is consistency and corroboration in the evidence of PW.11- Doctor and Ex.P6-Final Report. In the cross-examination, PW.11- Doctor denied a suggestion that the deceased died due intoxication and asphyxia and not due to throttling. PW.11 also stated in his cross-examination that specimens were submitted to the Forensic 11 AAR, J & JS, J Crl.A.No.857 of 2013 Science Laboratory for analysis. PW.11 is a truthful witness and his testimony cannot be doubted. In view of the same, it can be safely concluded that the death of the deceased is homicidal. Further, there is no much dispute that the death of the deceased is homicidal.
15. Now the question that needs answer is as to whether the appellant/accused caused the subject death of the deceased. To answer this question, it is necessary to analyze the evidence on record.
16. PW.1 is the complainant and the father of the deceased. He deposed in his evidence that the deceased went to hamali work in the morning and did not return back. At about 01.00 hours in the mid night, one Swathi, girl came to him and informed him that a galata took place between the deceased and the appellant/accused. On that galata, the deceased was beaten and his condition is serious. Himself and his sister-in-law rushed to the place and found the deceased dead. He lodged Ex.P1-complaint with the police.
17. PW.2 is the wife of PW.1 and mother of the deceased. She also deposed in the same lines as that of PW.1. 12
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18. PW.3 is the crucial witness in this case. She is said to be an eye-witness to the occurrence of the subject incident. She deposed that she was working in Grain Market, Khammam. She know both the deceased who is her lover and also the appellant/accused. The deceased, appellant/accused and PW.5 are friends from their childhood. The deceased died about 20 months back. On the date of the subject incident, she went to Grain Market and came to know that the deceased, appellant/accused and PW.5 were consuming toddy and she came back to her house around night 12.00 hours the deceased came on cycle of PW.5 and when the deceased was coming to meet her, the appellant/accused stopped him and forcibly kicked his head to the pan shop door. When she intervened to separate them, the appellant/accused pushed her away and the deceased fell down due to the beatings of the appellant/accused and the appellant/accused escaped from the spot. She further deposed that on her cries, PW.8 came there and telephoned to 108 ambulance and 108 ambulance came there. On examination, they said that the deceased died. Then she went to the house of PW.1 and informed the incident. They also came to the spot and saw the dead body. Next day morning, the father of the deceased submitted a written report (Ex.P1). The deceased died only due to the beatings of the appellant/accused. 13
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19. PW.3 was cross-examined at length, wherein she stated that there were coolies working in the grain market for loading and unloading and that some coolies are there on the date of incident. She categorically stated in her cross-examination that the deceased did not consume toddy on the date of subject incident. She also stated that she stated to the police the deceased consumed toddy at that time. It was also elicited in her cross- examination that the deceased was alive when the appellant/accused left the scene.
20. PW.4 was running a kirana shop in the Market Area, Khammam. She deposed that she knows the deceased. At about 12:00 or 12:30 mid night on the date of the subject incident, she woke up for taking medicines and found that there was a galata between the deceased and the appellant/accused and she admonished them to go to their house. Next day morning, she came to know that the deceased died due to the beatings. PW.4 was cross-examined, wherein she stated that the market was a busy locality and there was loading and unloading work during the night time also.
21. PW.5 is the friend of the appellant/accused and the deceased. He deposed that on the date of the subject incident, at 14 AAR, J & JS, J Crl.A.No.857 of 2013 about 08.00 PM, himself, deceased and the appellant/accused went to a toddy shop. Himself and the deceased sat on one side and the appellant/accused and another person sat on the other side. At that time, he asked the appellant/accused for snack item but the appellant/accused refused to give the same. At that time, the appellant/accused abused the deceased, the deceased thrown a bottle on the appellant/accused, an altercation took place between the deceased and the appellant/accused and himself and other people separated them. Immediately the appellant/accused left the shop and went away. Himself and the deceased sat together till 12:00 mid night. Around 12.00 mid night, he dropped the deceased on his bycycle in the market area and went to his house. He saw the appellant/accused there and left the place. At early morning, he came to know that the deceased died due to the beatings of the appellant/accused. Immediatley, he rushed to the spot and saw the dead body of the deceased. PW.5 was cross- examined, wherein, he categorically stated that PW.3 was not there at that time when he dropped the deceased at Grain Market Area.
22. PW.6 is the scribe of Ex.P1 complaint. He deposed that on the instructions of PW.1, he drafted the complaint and gave it to the police.
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23. PW.7 was working as a sales woman in the toddy shop. She deposed that she know the deceased, the appellant/accused and PW.5 and LW.14-Aman. About one year eight months back, the deceased and the appellant/accused came to her shop for consuming toddy and altercated with each other. Herself and the others intervened, admonished them and sent them away. Next day morning, she came to know that the deceased died due to the beatings of the appellant/accused.
24. PW.8 deposed that he was working as a hamali in the grain market. He knows the deceased and also the appellant/accused. On the date of the subject incident, at about mid night after completion of his work, he returned to his house and when he reached near the centre, he found PW.3 weeping beside the dead body of the deceased. He went there and on enquiry, PW.3 revealed that the appellant/accused beat the deceased and due to the said beatings, he fell down and sustained injuries. Immeidatley, he telephoned to 108 and the ambulance came there and examined the deceased and declared that he died. He advised PW.3 to inform the same to the family members of the deceased. After the family members of the deceased reached there, he left from the scene. PW.8, in his cross-examination, categorically 16 AAR, J & JS, J Crl.A.No.857 of 2013 stated that he did not eye-witness the quarrel or altercation between the deceased and the appellant/ accused.
25. PW.9 is the photographer who took the photographs of the deceased and handed over the digital photographs to the police.
26. PW.10 is a panch witness for Scene of observation and Ex.P4-Inquest Panchanama. He deposed that he along with another person attested Scene of Observation Panchanama and Ex.P4-Inquest Panchanama.
27. PW.11 is the doctor who conducted autopsy over the dead body of the deceased. He deposed in his evidence that on 27.03.2010, on the requisition of police, he conducted autopsy over the dead body of the deceased and found the following injuries:
1. Two abrasions 1 x 1 cm. in size at anterior surface of upper part of right side of neck.
2. Abrasion 3 x 1 in size anterior surface of uppor part of left side of the neck.
3. There are nail marks on the neck of the deceased.
He further deposed that as per the Final Report, the cause of death is due to throttling. PW.11 was cross-examined at length, wherein, he catetorically stated that there is no incriminating material in the hands of the deceased and that there is every possibility of fracture of Hyoid Bone in 50% cases of throttling. 17
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28. PW.12 is the SI of police. He deposed that on 27.03.2010 at about 06:30 AM, PW.1 lodged a written report under Ex.P1 basing upon which, he registered a case in Crime No.64 of 2010 for the offence under Section 302 of IPC and sent the original FIR to all the concerned and handed over the CD file to CI of police.
29. PW.13 was the Investigating Officer. He deposed that on 27.03.2010, on receipt of the information from PW.12 that there is an express FIR, he took up investigation, rushed to the scene of offence, examined PW.1 and recorded his statement, examined PWs.2 to 7 and others, secured the presence of mediators i.e. PW.10 and LW.16-K.Ramu and prepared Ex.P3 Crime Details Form and drafted rough sketch, got photographed the scene of offence and the dead body of the deceased by PW.9-Photographer in the presence of the same mediators, conducted inquest over the dead body of the deceased under Ex.P4 and sent the corpse for post mortem examination, arrested the appellant/accused on 28.03.2010 and produced him before the Court for judicial remand. On his transfer, he handed over the CD File to LW-21- Ch.Venkateshwra Rao, Inspector of Police, Khmamam III Town Police Station. PW.13 was cross-examined at length, wherein, he stated that there was loading and unloading work in the Grain 18 AAR, J & JS, J Crl.A.No.857 of 2013 Market area in the night time also and that he did not send the appellant/accused for examination of his nails.
30. It is evident from the material placed on record that there are material omissions and contradictions in the evidence of PW.3. While she stated in her cross-exammination that the deceased did not consume toddy on the date of incident, she admitted that she stated to the police that deceased consumed toddy at that time. Further, there are serious material discrepancies in the evidence of prosecution witnesses. While PW.3 stated in her evidence that around night 12:00 hours, when the deceased came on motor cycle of PW.5 to meet her, the appellant/accused stopped him and assaulted him, PW.5 stated in his cross-examination that when he dropped the deceased at grain market area at 12:00 mid night, PW.3 was not there at that time. Further, except PW.3, there are no other eye-witnesses to the alleged quarrel or altercation between the appellant/accused and the deceased. It is culled out from the evidence of PWs.3, 4 and 13 that the market area is a busy locality and there would be loading and unloading work in the night time also. PW.3 also categorically stated in her evidence that some coolies were there on the date of incident. She also stated in her cross-examination that there was scuffling beween the appellant/accused and the deceased for about 15 minutes and 19 AAR, J & JS, J Crl.A.No.857 of 2013 they cried loudly and both strangulated each other. Normally, when a galata takes place in a public place like grain market and when two persons cries loudly while strangulating each other, it will certainly grab the attention of the people nearby and they would certainly gather at the scene. In the instant case, if the evidence of PW.3 that there was scuffling between the appellant/accused and the deceased for about 15 minutes and they cried loudly and both strangulated each other is taken as true, the coolies/loading and unloading workers working nearby would have reached the spot and would have separated them. But, except the evidence of PW.3 which is filled with material discrepancies, the prosecution, for the reasons best known to it, did not adduce reliable evidence of independent witness for the incident which took place in a public place with coolies/loading and unloading workers working nearby. Generally in criminal cases, discrepancies in evidence of witness are bound to happen because there would be considerable gap between date of incident and time of deposing before the Court, but, if those contradictions create serious doubt in the mind of Court about trustworthiness or credibility of the witnesses, it is not safe to rely on such evidence. In the instant case, the evidence of PW.3 is only consistent on the aspect of scuffle between the appellant/accused and the deceased, 20 AAR, J & JS, J Crl.A.No.857 of 2013 but on all other aspects, there are lot of contradictions, which go to the root of matter. It is trite law that while normal discrepancies do not corrode the credibility of a witness, material discrepancies do so. Further, PWs.1 and 2 are parents and PW.3 is the lover of the deceased and as such, they are related to the deceased. Although, there is no absolute rule that the evidence of related witnesses has to be corroborated by evidence of independent witnesses, it would be trite in law to have independent witnesses, when evidence of related eye-witness(es) is found to be not credible and untrustworthy. In the instant case, the prosecution, except examining PW.3 whose testimony is untrustworthy, did not examine any independent witness to prove the case of the prosecution beyond all reasonable doubt,. True it is, minor variations and contradictions in evidence of eyewitness(es) will not tilt the benefit of doubt in favour of accused, but, when contradictions in evidence of prosecution witnesses proves to be fatal to prosecution case, then those contradictions go to the root of matter and in such cases, the accused gets the benefit of doubt. It is duty of Court to consider trustworthiness of evidence on record. As said by Benthem, "witnesses are eyes and ears of justice". In the instant case, the evidence of witnesses is filled with discrepancies and contradictions 21 AAR, J & JS, J Crl.A.No.857 of 2013 which go to the root of the matter and which leads to the irresistible conclusion that the same cannot form basis for convicting the appellant/accused.
31. Further, there are laches on the part of investigating officer in conducting investigation in this case. PW.11-doctor categorically deposed in his evidence that there were nail marks on the neck of the deceased. In such a case, the investigating officer ought to have sent the appellant/accused for examination of his nails in order to establish that it is the appellant/accused who throttled the deceased to death and the same would have clinched the issue. But the investigating officer, who was examined as PW.13, stated in his cross-examination that he did not send the appellant/accused for examination of his nails. Though mere laches on part of investigating officer itself cannot be a ground for acquitting an accused and if the same forms basis then every criminal case will depend upon the will and design of investigating Officer, however, it is also equally true that the Courts have to independently deal with the case and should arrive at a just conclusion basing on the evidence on record. If there are clear contradictions in oral evidence and clear laches in investigation, then benefit of doubt has to go to the accused. 22
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32. There are yet other circumstances which makes the prosecution case doubtful. Admittedly, the incident occurred at about 12:00 or 12:30 on the intervening night of 26/27.03.2010. PW.12-SI of police deposed in his evidence that the PW.1 came to the police station and lodged the subject report on 27.03.2010 at 06:30 AM. Thus, there was a delay of about six hours in lodging the report. PW.12 stated in his cross-examination that the distance between the scene of offence and the police station is about one and half kilometer and that night duty persons were available at the police station to attend urgent cases and that it takes about 15 to 20 minutes to reach the police station from the scene of offence. Under these circumstances, nothing prevented PW.3 or PW.1 to lodge the subject report, immediately after the subject incident. No plausible explanation is forthcoming from the side of prosecution with regard to the delay of six hours in lodging the subject report. Further, the contention of the learned Public Prosecutor that the appellant/ accused, with a pre-medidated mind to eliminate the deceased, beaten him to death, is not appealing to our mind. It has come up in the evidence of PW.3 that there was a scuffle between the appellant/accused and the deceased for about 15 minutes. In a scuffle, the possibility of provocation by either side cannot be completely ruled out. No evidence was 23 AAR, J & JS, J Crl.A.No.857 of 2013 forthcoming from the side of prosecution as to what actually transpired between the appellant/accused and the deceased at that particular point of time. Further, PW.3 caetgorically stated that the decesased was alive when the appellant/accused left the scene. Even otherwise, as per the evidence on record, the appellant/accused and the deceased were friends. Except a galata that took place between the appellant/accused and the deceased, there is no evidence on record to the effect that there was such a rivalry between the appellant/accused and the deceased which made the appellant/accused to go to the extent of doing away with the life of the deceased. Under these circumstances, we hold that there is no sufficient material to conclude that the appellant/accused had pre-medidated mind to cause the subject death of the deceased.
33. A strong suspicion may exist against the appellant/accused, but such suspicion cannot form the basis for convicting the appellant/accused, going by the standard of proof required in a criminal case and the distance between the terms 'may be true' and 'must be true' shall be fully covered by reliable evidence adduced by the prosecution.
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34. For the foregoing discussion, we are of the view that the Court below brushed aside the aforementioned vital defects in the prosecution case and in a very unconventional way, convicted the appellant/accused, which, in our firm opinion, resulted in miscarriage of justice. In view of the evidence placed on record, it cannot be held that it is the appellant/accused who throttled the deceased to death. It is the duty of the Court to make an endeavor to find out the truth. Courts should be able to perceive both sides, i.e., prosecution as well as defence. In the instant case, the prosecution miserably failed to prove the guilt of the appellant/accused for the offence under Section 302 of IPC beyond all reasonable doubt. The Court below had not analyzed the evidence on record in correct perspective. The conclusions reached by the Court below in finding the appellant/accused guilty of the offence punishable under Section 302 of IPC are not in tune with the evidence on record. The submissions advanced on behalf of the appellant/accused merit consideration and the appeal deserves to be allowed.
35. In the result, the appeal is allowed and the conviction and sentence recorded against the appellant/accused of the offence under Section 302 of IPC, vide judgment, dated 16.03.2012, passed in S.C.No.568 of 2010 by the learned Principal Sessions 25 AAR, J & JS, J Crl.A.No.857 of 2013 Judge, Khammam, is set aside. Consequently, the appellant/accused is acquitted of the offence under Section 302 of IPC. It is evident from the material placed on record that the appellant/accused was enlarged on bail by this Court on 05.06.2017. His bail bonds stands cancelled.
36. The Criminal Appeal is, accordingly, allowed.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
_____________________ A. ABHISHEK REDDY, J ___________________ JUVVADI SRIDEVI, J 11th January, 2023 Bvv