HON'BLE DR. JUSTICE G. RADHARANI
AND
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.94 of 2014
JUDGMENT:(Per GAC, J)
This appeal is arising out of the judgment dated 21.01.2014
in S.C.No.712 of 2011 on the file of the IX Additional District and
Sessions Judge, Wanaparthy.
2. The appellant is the accused No.1. A charge sheet is filed
against accused Nos.1 to 3 for the offences punishable under
Sections 302 and 302 r/w.34 of IPC. The trial Court, after
considering the evidence on record, convicted the appellant under
Section 235(2) of Cr.P.C. for the offence punishable under Section
302 of IPC and sentenced him to undergo rigorous imprisonment
for life and to pay a fine of Rs.5,000/- for the offence punishable
under Section 302 of IPC and in default of payment of fine, to
suffer simple imprisonment for a period of six months. The trial
Court acquitted accused Nos.2 and 3 for the offence punishable
under Section 302 r/w. 34 of IPC.
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3. The brief case of the prosecution is that on 25.08.2010 at
7.15 p.m., while PW-1 was at home, accused Nos.1 to 3 and 5
others came to her and enquired about her husband/Chekkala
Chinna Nagaiah (hereinafter called as 'the deceased'), on that, she
informed that he was not available. Accused No.2 alone remained
in the house and the rest of them left her house in order to search
the deceased. Later, they found the deceased coming towards his
house and then, accused Nos.1 to 3 and others assaulted the
deceased with sticks on his head and neck and as a result, the
deceased fell down and the incident was witnessed by PWs.2 and
4. It is the further case of the prosecution that soon after the
assault, accused Nos.1 to 3 and others fled away and the
injured/deceased was shifted to District Headquarters hospital,
Mahabubnagar in an Auto of PW-6, but the Doctors declared the
deceased as brought dead. On the next day morning, PW-1 got
drafted Ex.P-1/report through PW-7 and preferred the same to
SHO, Thammajipet police station at about 10.00 a.m., for which,
the S.I. of Police, Thammajipet/PW-13 registered a case against
Nine (9) accused including the appellant, vide Crime No.66 of
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2010 for the offences punishable under Sections 302 r/w.34 and
109 of IPC and issued express FIRs to all the concerned.
4. During the course of investigation, PW-14/investigating
officer conducted inquest panchnama over the dead body of
deceased in the presence of panchayatdars, also prepared the crime
detail form and later forwarded the dead body of the deceased for
postmortem examination. Further, he recorded the statements of
the prosecution witnesses, collected material objects/M.Os.1 to 7
from the scene of offence. During the course of investigation,
PW-14 apprehended the accused and on interrogation, the accused
confessed in the Police Station, in the presence of PWs.10 and 11
and pursuant to the confession, he recovered M.O.8 and later
produced the accused before the Court, for judicial remand.
5. The Doctor/PW-12, who conducted postmortem examination
on the dead body of the deceased, found 3 external injuries over the
dead body of the deceased and issued postmortem examination
report/Ex.P-12. PW-12 opined that the cause of the death of the
deceased is due to acute hemorrhage and shock due to rupture of
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common carotid artery (common vessels of the neck). After
receiving the postmortem report of the deceased and on completion
of the investigation, the investigating officer filed the charge sheet
against accused Nos.1 to 3 only for the offence punishable under
Section 302 r/w.34 of IPC and deleted the names of the other
accused, who are mentioned in the FIR, as their involvement was
not established.
6. During the course of trial, charges were framed against
accused No.1 for the offence punishable under Section 302 of IPC
and under Section 302 r/w.34 of IPC against accused Nos.2 and 3,
read over and explained to them, for which, they pleaded not guilty
and claimed to be tried.
7. On behalf of the prosecution, PWs.1 to 14 were examined
and Exs.P-1 to P-16 and M.Os.1 to 8 were marked. All the accused
were examined under Section 313 Cr.P.C. and they all denied the
incriminating evidence of the prosecution and pleaded not guilty
for the offences charged. As stated supra, accused Nos.2 and 3
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were acquitted by the trial Court and accused No.1 alone was
convicted for the same set of facts and evidence on record.
8. It is relevant to mention the relationships between the
witnesses for better appreciation of the facts. PWs.1 and 3 are the
wife and son of the deceased respectively. But their evidence is
hearsay. PWs.2 and 4 are said to be the eye witnesses to the
incident. PW-5 is the owner of the hotel and his evidence only
disclose that prior to the incident, there was exchange of words
between the deceased and accused No.2 in his presence. PW-6 is
an Auto driver who shifted the injured/deceased to Government
hospital immediately after the incident. PW-7 is the scribe of
Ex.P-1, who drafted it, at the instance of PW-1. PWs.8 and 9 are
mediators to inquest and scene observation panchanamas, but they
turned hostile. PWs.10 and 11 are mediators for the confession of
accused No.1 and recovery of M.O.8/stick, but they too turned
hostile. Exs.P-2 to P-11 are the signatures of PWs.8 to 11
respectively. PW-12 is the Doctor who conducted autopsy over the
dead body of deceased and issued postmortem report/Ex.P-12.
PWs.13 and 14 are the Police officials who registered the crime
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against 9 accused, conducted investigation and filed charge sheet
against 3 of the accused (accused Nos.1 to 3).
9. Heard the learned counsel for the appellant Sri P.Prabhakar
Reddy and the learned Additional Public Prosecutor. Perused the
record.
10. It is urged by the learned counsel for the appellant that there
was delay in giving report to the Police and that the names of the
accused are mentioned in the FIR after due deliberations. It is
further contended that there are many discrepancies in the evidence
of the prosecution and that the prosecution failed to prove the guilt
of the appellant beyond reasonable doubt, hence, appellant is
entitled for benefit of doubt. It is further contended by the learned
counsel for the appellant that initially, the case was registered
against 9 accused, but the investigating officer has filed charge
sheet only against 3 of the accused and the trial Court has acquitted
accused Nos.2 and 3 for the same set of facts and therefore, the
appellant has to be acquitted, in view of the evidence of the
witnesses as not trustworthy and the presence of eye witnesses at
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the scene of offence is very much doubtful. It is further contended
that there are civil disputes between the accused and the deceased
and the appellant is falsely implicated in this case. Therefore,
prayed to set aside the judgment of the trial Court and acquit the
appellant.
11. On the other hand, the learned Additional Public Prosecutor
contended that the prosecution has proved the guilt of accused
beyond reasonable doubt for the charged offence and therefore,
prayed to confirm the judgment of the trial Court.
12. Now, the point for determination is;
Whether the trial Court is correct in convicting the
accused/appellant for the offence punishable under
Section 302 of IPC and whether the prosecution has
proved the guilt of the appellant beyond reasonable
doubt for the said offence?
13. The criminal law was set into motion basing on the
information given by PW-1, who is the wife of the deceased. The
report given by her is Ex.P-1, which is drafted by PW-7. It is
important to mention that the entire case of prosecution rests on the
evidence of direct eye witnesses i.e. PWs.2 and 4.
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14. In order to prove an offence punishable under Section 302 of
IPC, it is for the prosecution to prove that the death of the deceased
was caused by the appellant maliciously, with a specific motive,
the bodily injury caused by the offender is within the knowledge
that such an injury might cause the death of the deceased and
further, the injury inflicted is sufficient to cause the death of the
deceased.
15. The evidence of PW-12/Doctor is crucial to prove whether
the death of the deceased is homicidal or natural. His evidence
discloses that basing on the requisition of the SHO, Thammajipet
P.S., dated 26.08.2010, he conducted postmortem examination on
the dead body of the deceased, named Cheekala Chinna Nagaiah
and found the following external injuries:
1. Lacerated injury over left parietal region 4 inch x 1
inch x ½ inch.
2. Lacerated injury over right frontal parietal region.
3. A stab injury over the lower part of the neck.
16. All the above injuries are ante-mortem in nature. It is opined
by PW-12 that the cause of the death of the deceased is due to
acute hemorrhage and shock due to rupture of common caroted
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artery (great vessels of the neck). The postmortem certificate of
the deceased issued by PW-12 is Ex.P-12.
17. In the cross-examination, it is specifically deposed by PW-
12 that injuries 1 and 2 are lacerated injuries on the bony part of
the body and injury No.3 is a stab injury which is spindle shaped
stab injury, possible with a sharp-edged weapon.
18. On perusal of the oral evidence of PW-12 and the
documentary evidence i.e. Ex.P-12, it can be construed that the
death of the deceased is a homicide and not a natural one.
19. The cardinal principles of the criminal justice system are
that:
1. The burden is always on the prosecution to
prove the guilt of the accused.
2. Accused shall be presumed to be innocent till
the guilt is proved.
20. Basing on the said cardinal principles, it is for the
prosecution to prove that the appellant has committed the murder
of the deceased. As stated supra, the evidence of PWs.1 and 3 can
be treated as hearsay evidence as they did not witness the incident.
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The evidence of PW-1 clearly disclose that accused Nos.1 to 3
enquired her, about the deceased and accused No.2 caught hold of
her in the house and in the meantime, she heard the cries from
outside and noticed the deceased with injuries and also noticed
accused Nos.1 to 3 running far away from the scene of offence.
Further, she testified that there are land disputes between them and
the accused and she preferred Ex.P-1/report. The evidence of
PW-3, who is the son of the deceased, disclose that his brother
informed him on phone that accused No.1 beat his father with a
stick which resulted in the death of the deceased and that there are
civil disputes between the accused and their family.
21. Therefore, it can be construed from the evidence of PWs.1
and 3 that there is enmity between the families of accused and the
deceased in view of civil disputes and that they have not witnessed
the appellant assaulting the deceased with the stick i.e. M.O.8.
22. PWs.2 and 4, are the neighbours of the deceased. The
evidence of PW-2 disclose that on the date of incident at about 7.00
p.m., the accused beat the deceased with a stick on his head, due to
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which, the deceased fell down and the other accused gave two or
three blows with stick. The evidence of PW-4 disclose that
accused No.1 beat the deceased with stick on his head twice. In the
cross-examination, both the witnesses admitted about the civil
disputes between the families of the accused and the deceased.
23. The evidence of PW-5 can be ignored as he specifically
stated about the exchange of words between accused No.2 and the
deceased. As accused No.2 was acquitted by the trial Court, not
much weightage can be given.
24. Further, there is no necessity to discuss the evidence of
PWs.6 and 7 as their evidence only disclose about shifting of
deceased from the scene of offence to the hospital and also about
the drafting of Ex.P-1, at the instance of PW-1.
25. Likewise, the evidence of PWs.8 and 9, who are the panch
witnesses for the inquest and scene of offence panchanamas and
the evidence of PWs.10 and 11 panch witnesses for the confession
and recovery panchanamas can also be ignored as all of them
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turned hostile, though their signatures are marked as Exs.P-2 to
P-11 on the said panchanamas.
26. Admittedly, PWs.13 and 14 are the Police officials. The
evidence of PW-13 is only with respect to receiving the report from
PW-1 and registering the case against Nine (9) accused and
handing over the case file to PW-14.
27. As per the evidence of PW-13 and Ex.P-1, it is evident that
the incident took place at about 7.00 p.m., on 25.08.2010, but he
received Ex.P-1 report at 10.00 a.m. on 26.08.2010, and therefore,
there is a delay of 15 hours. But, on perusal of Ex.P-13/FIR,
Column No.8, it is evident that PW-13 has stated that there is no
delay in filing the FIR, which is fatal to the case of the prosecution.
28. The learned counsel for the appellant has relied on the
judgments of the Hon'ble Apex Court as to the delay in giving the
report, in Konna Ramakrishna Reddy & others Vs. State of
A.P.1, wherein, their Lordships have held that time of three hours
between the occurrence and recording of the statement in a given
1
2008 CRLJ 2918 (AP)
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case, is sufficient for deliberations and discussions, particularly
when the occurrence has traces of faction/rivalry.
29. The learned counsel has also relied on Thulia Kali Vs. State
of Tamil Nadu2, wherein, their Lordships have held that the delay
in lodging the report, according to the prosecution, was due to the
fact that Muthuswamy/PW was away to another village in
connection with some collection work and had returned to his
house at 10.30 p.m. Muthuswamy told Valanjiaraju when he met
him at the night that he would record the statement only after
having a look at the dead body on the following morning. Police
Station Velavanti is also at a distance of three furlongs from the
house of Munuswamy. Assuming that Munuswamy (PW) was not
found at his house till 10.30 p.m. on March 12th, 1970 by
Valanjiaraju, it is, not clear as to why no report was lodged by
Valanjiaraju at the Police Station. It is, in our opinion, most
difficult to believe that even though the accused had been seen at
2.00 p.m., committing the murder of Madhandi (deceased) and a
large number of villagers had been told about it soon thereafter, no
2
AIR 1973 SC 501
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report about the occurrence could be lodged till the following day.
The Police Station was less than two miles from the village of
Valanjiaraju and Kopia and their failure to make a report to the
Police till the following day would lend to show that none of them
had witnessed the occurrence.
30. Their Lordships have also held that the object of insisting
upon prompt lodging of the report to the Police Station in respect
of commission of an offence is to obtain early information
regarding the circumstances in which the crime was committed, the
names of the actual culprits and the part played by them as well as
the names of eye witnesses present at the scene of occurrence.
Delay in lodging the first information report quite often results in
embellishment which is a creature of afterthought. On account of
delay, the report not only gets bereft of the advantage of
spontainity, danger creeps in the introduction of coloured version,
exaggerated account or concocted story as a result of deliberation
and consultation. It is therefore, essential that the delay in lodging
the first information report should be satisfactorily explained.
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31. The above said propositions of the Hon'ble Apex Court are
squarely applicable to the facts and circumstances of the present
case. As per the evidence of PW-1 and Ex.P-1, the offence took
place at about 07.00 p.m. on 25.08.2010 and as per the evidence of
PW-13, the complaint was received at the Police Station at about
10.00 a.m. on 26.08.2010 and there is a delay of 15 hours, and the
reasons for delay in filing report are not explained in Ex.P-13/FIR.
It is important to note that PW-7 is the scribe of Ex.P-1/report.
Further more, Ex.P-1 does not disclose as to why the delay
occurred in preferring the report to the Police. Though the names
of 9 accused were mentioned in the FIR and the Ex.P-1/report, the
investigating officer has dropped the names of 6 of the accused
stating that there is no material against the said accused as to their
involvement in the crime and the trial Court has acquitted two of
the accused (accused Nos.2 and 3). Therefore, it can be construed
that Ex.P-1/report was given after due deliberations and
consultations and as an afterthought, in view of the civil disputes
between the families of the deceased and the accused.
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32. The entire case of the prosecution rests on the evidence of
PWs.2 and 4, but Ex.P-1 is also silent as to the presence of the
witnesses i.e. PWs.2 and 4 witnessing the offence (murder of the
deceased). It is the specific contention of the learned counsel for
the appellant that the presence of PWs.2 and 4 at the scene of
offence is doubtful and they are planted witnesses. The learned
counsel has relied on the judgment of the Hon'ble Apex Court in
State of Orissa Vs. Brahmananda Nanda3, wherein, their
Lordships have held that it is indeed difficult to believe this witness
should not have disclosed the name of the respondent to the Police
or even to ASI/Madan Das and should have waited till the rooming of 15th June, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the witness.
33. Further, the learned counsel also relied on the judgment in Sonia Bahera Vs. State of Orissa4, wherein, their Lordships have held that the evidence of the so-called eye witnesses PWs.1 and 2 is discrepant as pointed out by the Sessions Judge. Their conduct 3 AIR 1976 SC 2488 4 AIR 1983 SC 491 17 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 in not telling anybody about the incident on the date of incident also makes their evidence not worthy of acceptance. The other material before this Court is not sufficient to hold the appellant guilty. This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of the offence was possible.
34. The learned counsel for appellant has also relied on two other judgments in Jagdip Singh & another Vs. State of Haryana5 and Ram Kumar Pande Vs. State of Madhya Pradesh6, wherein, their Lordships have held that if the presence of the eye witnesses are not referred in the FIR, obviously there are embellishments and omission of such important facts affects the probabilities of the case and it is unsafe to rely on the evidence of the maker of the FIR.
35. The above judgments are also squarely applicable to the facts of the present case, wherein, PW-1 did not disclose the 5 AIR 1974 SC 1978 6 AIR 1975 SC 1026 18 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 presence of the eye witnesses i.e. PWs.2 and 4, in Ex.P-1. Moreover, PW-1 is not the witness to the incident and she came to know about the incident through PWs.2 and 4.
36. At this juncture, it is pertinent to mention the proposition of the Hon'ble Apex Court in the judgment in Mahender Singh & others Vs. State of M.P.7, wherein, their Lordships have relied on the judgment reported in VadiveluThevar Vs. The State of Madras8 and held as under :
"Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely, (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category cases that the Court has to be 7 2022 LiveLaw (SC) 543 8 1957 SCR 981 19 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
As per the above ratio, the witnesses are of three types, (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable.
37. In the present case, the evidence of PWs.1 and 3 can be treated as hearsay evidence and the evidence of PWs.2 and 4 comes under the third category i.e. 'neither wholly reliable nor wholly unreliable' and the trial Court ought to have looked for corroboration in material particulars either direct or circumstantial. There is no corroboration as to the material particulars for the evidence of PW-1. Hence, it can be construed that the evidence of PWs.1 and 3 also would fall in the category of 'neither wholly reliable nor wholly unreliable'.
38. In the judgment of Hon'ble Supreme Court in the case of Sudhakar @ Sudershan Vs. State rep. by Inspector of Police, Srirangam Police Station, Tiruchi9, it is held in para 17 as under: 9
(2018) 5 SCC 435 20 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 "Then, next comes to the question what is the difference between a related witness and an interested witness ? The plea of "interested witness", "related witness" has been sufficiently explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand, PWs.1 and 5 were not only "related witnesses" but also "interested witnesses" as they had pecuniary interest in getting the accused punished. (refer State of U.P. v. Kishan Pal10). As the prosecution has relied upon the evidence of "interested witnesses", it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
PWs.1 and 3 do come under the category of "interested witnesses" as their intention is to see that the accused is punished.
39. The major discrepancy in this case is that of the material object/M.O.8. As per the evidence of PWs.2 and 4, accused No.1 has beat on the head of the deceased twice with a stick i.e. M.O.8. But, as per the evidence of PW-12/Doctor, the cause of the death of the deceased is due to acute hemorrhage and shock due to rupture to common carotid artery (great vessels of the neck) (injury No.3), which is a stab injury caused with a sharp-edged weapon and the injury is of spindle-shaped. Injury Nos.1 and 2 found on the dead body of the deceased are lacerated injuries. It is for the prosecution 10 (2008) 16 SCC 73 = (2010) 4 SCC (Cri) 182 21 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 to prove that the death of the deceased resulted due to the stab injury which was inflicted by the appellant with a sharp-edged weapon on the deceased. Contra to the evidence on record, it is the case of the prosecution that the death of the deceased resulted as the appellant beat the deceased with a stick. There is no evidence on record to prove that injury No.3 was caused due to M.O.8 weapon i.e. the stick. Therefore, it can be construed that the prosecution has miserably failed to prove that the appellant has inflicted stab injury on the neck of the deceased with a sharp-edged weapon. Therefore, the oral evidence of PWs.2 and 4 cannot be believed in view of the medical evidence which is on record.
40. It is for the prosecution to prove that the crime objects are connected with the accused and pursuant to the confession of the accused, the crime objects were recovered. PWs.10 and 11 turned hostile and there is no evidence on record, as far as the recovery of material object M.O.8. Therefore, the prosecution has miserably failed to prove that recovery of material objects was being made under Section 27 of Indian Evidence Act and the confession of the accused to Police is hit by Section 25 of the Indian Evidence Act. 22
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41. As already discussed supra, the entire case of the prosecution is based on the evidence of direct eye witnesses i.e. PWs.2 and 4, which are contradicting the evidence of PW-12 and Ex.P-12. In a case of homicide, it is for the prosecution to prove that the accused has inflicted injuries on the deceased with M.O.8/stick, which ultimately resulted in the death of the deceased, but the evidence of PWs.12 and Ex.P-12 reveal that the death of the deceased was caused due to sharp-edged weapon.
42. In Anant Mishra Vs. State of U.P. & others11, their Lordships have held that if two persons are prosecuted, though separately, under the same charge for the offence having been committed in the same transaction and on the basis of the same evidence, and if one of them is acquitted for whatever may be the reason and the other is convicted, then it will create an anomalous position in law and is likely to shake the confidence of the people in the administration of justice. Justice is not only to be done but also seem to be done. Therefore, I am clearly of the opinion that as has been held in the case of Preetham Singh v. State of Punjab 11 2022 LiveLaw (All) 148 23 Dr.GRR, J & GAC, J Crl.A.No.94 of 2014 AIR 1956 SC 415, the principle of 'stare decisis' will apply in the present case and the applicant's conviction cannot be sustained.
43. The above proposition squarely applies to the present case on hand, as accused Nos.2 and 3 are acquitted for the same set of facts and the appellant alone cannot be convicted. In view of the above proposition, the appellant has to be acquitted, extending benefit of doubt.
44. Considering the oral and documentary evidence on record, the propositions of the Hon'ble Apex Court and in view of the above discussion, we are of the opinion that there is a considerable doubt regarding the veracity of evidence of those two witnesses i.e. PWs.2 and 4 on which, the prosecution has relied, to convict the appellant and on the point of an infirmity in that evidence, it would be unsafe to convict the accused/appellant. Further, this Court is of the considered view that the prosecution has miserably failed to bring home the guilt of the appellant beyond reasonable doubt for the offence punishable under Section 302 of IPC, and therefore, the judgment of the trial Court is liable to be set aside. 24
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45. In the result, the Criminal Appeal is allowed. The appellant is found not guilty of the offence punishable under Section 302 of IPC, and accordingly, the conviction and sentence imposed on the appellant vide Judgment dated 21.01.2014 in S.C.No.712 of 2011 on the file of IX Additional District and Sessions Judge, Wanaparthy, is hereby set aside and the appellant is acquitted of the charged offence. Consequently, the Superintendent, Central Prison, Cherlapally, is directed to release the appellant forthwith, if he is not required in any other case. M.Os.1 to 8 shall be destroyed after the appeal time is over.
Pending miscellaneous applications, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J ________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 20.01.2023 N.B:
Judgment be forthwith communicated to the jail authorities concerned.
(b/o) ajr