Boyakori Dastagiri, vs The State Of Ap Rep By Its Pp Hyd., ...
2023 Latest Caselaw 1705 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

              CRIMINAL APPEAL No.184 of 2009

JUDGMENT:

This Criminal Appeal is filed under Section 374(2) Cr.P.C.

by a convict. By a judgment dated 02.02.2009 in Sessions Case

No.247 of 2008 learned Principal Assistant Sessions Judge,

Kurnool found this appellant guilty for the offences under

Sections 304 and 307 I.P.C. He was accordingly convicted. For

the charge under Section 304 I.P.C., he was sentenced to

undergo rigorous imprisonment for 10 years and pay a fine of

Rs.500/- with a default sentence of simple imprisonment for six

months. For the charge under Section 307 I.P.C., he was

sentenced to undergo rigorous imprisonment for 5 years and

pay a fine of Rs.500/- with a default sentence of simple

imprisonment for six months. The substantive sentences were

directed to run concurrently. He was found in custody between

11.03.2007 and 24.04.2007 and the said period was given set

off in terms of Section 428 Cr.P.c.

2. In this appeal the said judgment is challenged.

3. Facts leading to the present appeal are:

Dr. VRKS, J Crl.A.No.184 of 2009

Crime No.27 of 2007 of Kodumur Police Station was

investigated into and a charge sheet was laid before learned

Judicial Magistrate of First Class, Kurnool where it was

registered as P.R.C.No.55 of 2007. After securing the presence

of the accused and furnishing him with copies of documents

and after hearing both sides, the learned Magistrate acting in

terms of Section 209 Cr.P.C. committed the case to the Sessions

Division. Case was assigned to the Principal Assistant Sessions

Judge, Kurnool for trial of S.C.No.247 of 2008 and on securing

the presence of the accused and after hearing both sides, a

charge under Section 304 I.P.C. and another charge under

Section 307 I.P.C. were framed, read over and explained to him

in Telugu. He denied the allegations and pleaded not guilty.

Prosecution examined PWs.1 to 12 and got marked Exs.P.1 to

P.15 and exhibited MO.1 which is Bag Piper Whisky quarter

bottle with 30 ML. Incriminating material available on record

was offered to the accused in terms of Section 313 Cr.P.C. His

response was a condemnation of the truthfulness of the

evidence. Defence did not adduce any oral or documentary or

material evidence before the learned trial Court. After hearing

arguments and after considering the material on record, the

Dr. VRKS, J Crl.A.No.184 of 2009

learned trial judge found the sole accused/sole appellant herein

guilty and convicted him as indicated earlier.

4. The substance of the case is that the accused has a sister

by name Dasthagiramma and she was given in marriage to

Sri B.Devalam Venkateswarlu/PW.3. Subsequently the said

Dasthagiramma committed suicide and died. With reference to

that, her parents and her brother/accused complained to police

and the husband of the deceased Sri B.Devalam

Venkateswarlu/PW.3 were tried and were finally acquitted.

That acquittal created dissatisfaction in the mind of the accused

and therefore, he was waiting for an opportunity to take

revenge. It is in the backdrop of these facts with the above

stated motive he was seeking an opportunity to kill his brother-

in-law/Sri B.Devalam Venkateswarlu/PW.3.

5. It is stated that accused procured MO.1-liquor bottle and

mixed organophosphate, an insecticide poison into it and his

intention is to see that his brother-in-law consumes it and dies.

The accused handed over this MO.1 bottle to PW.1 with a

specific request to him to hand it over to PW.3 and to none else.

It was alleged that PW.1 accordingly handed over this bottle to

Dr. VRKS, J Crl.A.No.184 of 2009

PW.3 on 02.03.2007. PW.3 is a drunkard but he did not

consume it on that day. He took it to home and on the next

day/03.03.2007 at about 8:30 A.M. he called PW.2 and they

together went to a hotel run by PW.4 and there sitting in the

hotel they wanted to consume the liquor. It is stated that from

MO.1-bottle PW.3 poured the liquor into a glass and offered it to

PW.2, who consumed a little quantity of it and expressed that it

was too bitter and he could not consume it and left it there. It

was at that time one Mr. B.Srinivasulu happened to come there

and he made a request to PW.3 to give him liquor and

accordingly the glass containing liquor that was left out by PW.2

was offered to this Mr. B.Srinivasulu and he consumed it. All

this occurred in the hotel of PW.4. Soon after consumption of

this liquor both PW.2 as well as Mr. B.Srinivasulu suffered

giddiness and vomited and fell down. They were shifted to their

houses and thereafter Mr. B.Srinivasulu was taken to hospital

and it was found that he was brought dead. On obtaining

treatment PW.2 survived.

6. On 04.03.2007 on a written information lodged by PW.1

crime was registered and Ex.P.11-F.I.R. was issued. During the

course of investigation, an inquest over the dead body was held

Dr. VRKS, J Crl.A.No.184 of 2009

and the dead body of Mr. Srinivasulu was subjected to post-

mortem examination and viscera was collected. On 10.03.2007

accused was arrested and MO.1-liquor bottle was seized and

with a letter of advice through Court viscera was forwarded to

A.P. Forensic Science Laboratory along with MO.1. The

scientific expert gave report and thereafter the autopsy doctor

rendered his final opinion stating that death of Mr.

B.Srinivasulu was because of consumption of Organophosphate

which is an insecticide poison associated with Ethyl alcohol

intoxication. Investigating agency examined witnesses and

recorded their statements. During the course of investigation,

Section 164 Cr.P.C. statement of PW.1 was also recorded by a

learned Magistrate.

7. When it comes to substantive evidence produced before

the trial Court the 1st witness who is PW.1 denied giving Ex.P.1-

written information, denied knowledge of all facts. Prosecution

chose to examine him in cross and his former statement

recorded by police under Section 161 Cr.P.C. was marked as

Ex.P.2. He was asked whether his statement was recorded by

learned Magistrate under Section 164 Cr.P.C. He admitted to

have given a statement before the learned Magistrate but stated

Dr. VRKS, J Crl.A.No.184 of 2009

that it was at the instructions of police he made such statement

and disowned the contents of it. What was recorded under

Section 164 Cr.P.C. was not shown to him when this witness

was in the box. PW.2 stated that at the hotel of PW.4 he found

a glass of alcohol and he consumed it and fell unconscious. He

said that he does not know who else consumed liquor along

with him. He did not say whether he alone went to the hotel of

PW.4 or he went along with PW.3 or others. He did not say

about the source of alcohol as to who gave it to him. He did not

say whether he purchased alcohol or he brought alcohol for

consumption. As he also did not support the case of

prosecution, State questioned him in cross and his statement

under Section 161 Cr.P.C. was marked as Ex.P.3.

Sri B.Devalam Venkateswarlu for whose death the accused was

allegedly awaiting testified as PW.3. In his evidence he stated

that PW.1 gave him MO.1 whisky bottle and on the next day he

went to the hotel of PW.4 and while he was there, PW.2 came

and expressed his desire to consume alcohol and then PW.3

offered him the liquor from MO.1 and PW.2 consumed a little of

it and stated to him that it was not good. PW.3 also stated that

it was at that time Mr. B.Srinivasulu came and asked for liquor

Dr. VRKS, J Crl.A.No.184 of 2009

and he was served with the liquor from MO.1 and he consumed.

Thereafter, the said B.Srinivasulu and PW.2 fell down and they

struggled for their lives and in the meantime their relations

came and took them away. In his evidence he also said that

subsequent to this incident he went to PW.1 and questioned

him and had come to know that MO.1 was given by accused to

PW.1 with a specific instruciton to hand it over to him/PW.3

and that PW.1 told that accused promised to pay money also.

PW.3 said that from those facts he entertained the belief that

the accused intended to kill him and therefore did all this.

8. PW.4 is the one who runs the hotel and he said that to his

hotel on that day in the morning at 8:30 A.M. PWs.2 and 3

came together and they ordered for break past and to fetch it he

went inside and in the meantime Mr. B.Srinivasulu/deceased

also came there and PW.2 and Mr. B.Srinivasulu consumed the

liquor from the Bagpiper quarter bottle and they fell down. He

further said that subsequently he came to know that because

poison was mixed in that liquor all that happened. He said that

he is not aware as to who is responsible for mixing poison in

that liquor bottle. According to prosecution on many relevant

Dr. VRKS, J Crl.A.No.184 of 2009

facts he did not support the prosecution version and therefore

he was questioned in cross-examination.

9. PW.5 is a daily wage labourer and he said that he knew

deceased B.Srinivasulu and he attended inquest over the dead

body and he signed Ex.P.4-inquest report.

10. PW.6 is wife of deceased B.Srinivasulu. While she was at

Markapur, she got the information about trouble for her

husband on consumption of liquor and therefore she and others

reached the hotel and found her husband lying on the floor and

also found PW.2 lying on the ground and they were unconscious

and they shifted them to hospital. She said that her husband

died and she also said that she subsequently came to learn that

because of poison being mixed in the liquor this incident

occurred.

11. PW.7 is brother of PW.6. According to him, while he was

at his home in Kodumur he got the information about the death

of his brother-in-law and then he went to hotel and along with

PW.6 and others they shifted him to hospital etc., facts.

Dr. VRKS, J Crl.A.No.184 of 2009

12. PW.8 is Village Revenue Officer of Kodumur and he stated

that on 10.03.2007 being called by police he went with them to

the house of accused and they found the accused there and

they arrested the accused and from his house police seized

MO.1-liquor bottle. In evidence of all this Ex.P.5-Panchanama

was made.

13. PW.9 is the Assistant Professor in Forensic Science

Department in Kurnool Medical College, Kurnool. On

05.03.2007 between 9:00 A.M. and 10:00 A.M. he conducted

post-mortem examination over the dead body of

Mr. B.Srinivasulu and preserved the viscera. Thereafter that

was forwarded to Forensic Science Laboratory. Ex.P.7 is post-

mortem examination report. Ex.P.6 is report from Forensic

Science Laboratory. After receipt of Ex.P.6, PW.9 issued Ex.P.8-

final opinion expressing the cause of death.

14. PW.10 is Director of Viswa Bharathi Hospital, Kurnool

where PW.2 was examined. Ex.P.9 is the medical certificate

issued with reference to that. These aspects were spoken to by

PW.10. According to this witness, PW.2 was actually treated by

Dr. VRKS, J Crl.A.No.184 of 2009

Dr. Thimmaiah. The said doctor Thimmaiah though still

working in the hospital, prosecution did not examine him.

15. PW.11 was the then Sub-Inspector of Police, Kodumur

Police Station. He said that PWs.1 and 2 and others came to

the police station at 1:00 P.M. on 04.03.2007 and PW.1 lodged

Ex.P.10-written information and he issued Ex.P.11-F.I.R. He

then stated about some of the witnesses and thereafter handing

over the investigation to his Inspector.

16. The Inspector of Police of Kodumur testified as PW.12 and

he spoke about examining some of the witnesses and arrest of

the accused and recovery of MO.1 and about rest of the

investigative formalities. He made letter of advice as per

Ex.P.14. In his reexamination he stated that statement of PW.1

was recorded by a learned Judicial Magistrate of First Class,

Kurnool and the said statement is Ex.P.15.

17. The above evidence was available before the learned trial

Court. It was on that evidence it found the accused guilty.

18. In this appeal it is urged that crucial witnesses are PWs.1,

2 and 4 and they all turned hostile and did not support the

Dr. VRKS, J Crl.A.No.184 of 2009

prosecution version. PW.3 was developing grouse against

accused because it was at the behest of the accused he was

prosecuted for the death of sister of accused and he was waiting

for an opportunity and he created the false story and got filed

this false case. As per the evidence of PW.3 himself he was the

one who carried the liquor bottle and he offered the liquor to

PW.2 and the deceased and he was left out and innocent

accused was prosecuted. The evidence with reference to MO.1

is fallacious. If poison was mixed with it, there should be some

evidence as to whether MO.1-liquor bottle was found sealed or

not when it was received by PW.3. No evidence was given on

that behalf either by PW.3 or anybody else. The alleged seizure

of MO.1 is not proved by competent witnesses. Though PW.1

turned hostile, learned trial Court considered Ex.P.15/Section

164 Cr.P.C. statement elaborately which is against law. It is on

all these points, learned counsel for appellant argued that the

judgment of the trial Court is totally incorrect and the evidence

on record was misread and misinterpreted leading to reaching

wrong conclusions.

19. Learned Special Assistant Public Prosecutor appearing for

the State argued that enough and appropriate evidence was led

Dr. VRKS, J Crl.A.No.184 of 2009

by the prosecution before the trial Court and that was

accurately appraised by the trial Court and there are no merits

in this appeal and requests for dismissal of the appeal.

20. On considering the arguments on both sides and on

considering the material on record, the following points fall for

consideration:

1. Whether the learned trial Court incorrectly

appreciated the evidence and violated the

principles of law?

2. Was there evidence proving the charges under

Sections 304 and 307 I.P.C. beyond reasonable

doubt?

21. Points:

According to prosecution, this appellant/accused had

planned to kill PW.3. Even according to prosecution, the

appellant had no grouse against PW.2. It is never the

prosecution case that this accused had got any acquaintance

with deceased B.Srinivasulu and had any intention to kill him.

The man accused wanted to kill is the man who never

Dr. VRKS, J Crl.A.No.184 of 2009

consumed the alcohol allegedly supplied by accused. PW.3 did

not consume alcohol, did not suffer any hurt and did not make

any attempt to drink alcohol even according to the evidence of

PW.3. However, the alleged alcohol allegedly supplied by

accused killed Mr. B.Srinivasulu and caused trouble to PW.2.

For killing Mr. B.Srinivasulu accused was charged for the

offence under Section 304 I.P.C. For attempting to kill PW.2

accused was charged for the offence under Section 307 I.P.C.

Thus, in a way it is a case of "Transferred Malice". Learned trial

Court has not considered any fact or law with reference to this

doctrine of "Transferred Malice".

22. MO.1 is the liquor bottle. It is described as whisky and

its brand name is Bagpiper and its size is quarter bottle. Under

Ex.P.14-letter of advice, according to PW.12, this bottle along

with viscera of dead person was forwarded to Forensic Science

Laboratory and the said laboratory examined it and sent Ex.P.6

report. A perusal of Ex.P.6 shows that the liquor bottle/item

No.3 mentioned in its report was examined and it was found

that it contains Organophosphate which is an insecticide poison

and it is there along with Ethyl alcohol. By the same report, the

laboratory examined the viscera which also found containing

Dr. VRKS, J Crl.A.No.184 of 2009

the above substance. Based on this, Ex.P.8-final opinion was

rendered by PW.9-post-mortem doctor stating that it was

because of such substance death occurred to

Mr. B.SRinivasulu. Learned trial Court accepted this evidence

and concluded that accused is the culprit. The way this aspect

was dealt with indicates superficial examination of available

evidence and lack of aptitude in scrutinizing the evidence.

Ex.P.6 forensic science laboratory report in item No.3 mentioned

that it is reddish turbid liquid in a bottle labelled as 'Bagpiper

Whisky' marked as item No.4. Item No.4 is brown coloured

liquid. Thus, what was examined by APFSL was 'Whisky'.

Learned trial Court referred to and relied on Ex.P.15 which was

statement of PW.1 recorded by learned Magistrate under Section

164 Cr.P.C. A perusal of Ex.P.15 shows that this witness stated

before the learned Magistrate as extracted here from his very

statement:

"On 2nd day of March, Kari Dasthagiri (accused) gave me quarter bottle of Brandi and told me to give the same to his brother-in-law".

23. It is based on this learned trial Court concluded that

MO.1-liquor bottle was given by accused to PW.1 and thereafter

Dr. VRKS, J Crl.A.No.184 of 2009

PW.1 gave it to PW.3. Thus, what this witness by Ex.P.15 was

telling was "Brandi" and not whisky. What was examined by

APFSL was "Whisky" and not Brandi. Be it noted, all witnesses

deposed before the trial Court did not say whether it was whisky

or brandi. They only referred it as liquor or medicine. If what

was given to PW.1 was brandi then that brandi was the one that

was handed over by PW.1 to PW.3 and it was that brandi that

must have contained the poison. That aspect of the matter was

never proved before the trial Court. When whisky was not

handed over to PW.1 by the accused and when whisky was not

handed over by PW.1 to PW.3, but when that whisky found to

have killed Mr. B.Srinivasulu and caused trouble to PW.2 then

accused could not have been convicted for what he did not

supply. This is one aspect of the matter available from the

evidence.

24. PW.4 is the man who runs the hotel where the whole

incident occurred. In his evidence PW.4 stated that he observed

PWs.2 and 3 coming to the hotel. He observed

Mr. B.Srinivasulu coming thereafter. He stated that PW.2 and

deceased consumed liquor and suffered. What he stated in his

cross-examination is a matter of great relevance. He

Dr. VRKS, J Crl.A.No.184 of 2009

categorically stated that the said liquor quarter bottle became

empty and that empty bottle was carried away by PW.2. Thus,

the offending liquor bottle became empty according to PW.2. No

other witnesses spoke that the said bottle still had in it some

portion of the liquor. If that be the case, MO.1 bottle that was

said to have been recovered from accused still contained 30 ML

liquor. These two facts contradict each other, cannot coexist.

The evidence of PW.4 is that the offending liquor bottle was

carried away by PW.2. It is never the evidence of PW.2 that

from him accused took back that bottle. There is no other

evidence indicating that from PW.2 the offending liquor bottle

was once again taken back by the accused. It is not the

evidence of PW.4 or other witnesses that the offending liquor

bottle remained at the hotel of PW.4 and that this accused came

there and took away the bottle. All these facts and

circumstances are very conspicuously appearing in the record

but were never considered by the trial Court. Prosecution

utterly failed in explaining this part of the evidence of PW.4.

Thus, finding MO.1-liquor bottle with accused is completely

suspicious in the given facts and circumstances. According to

prosecution, accused mixed the poisonous substance into the

Dr. VRKS, J Crl.A.No.184 of 2009

liquor and gave that liquor bottle to PW.1 requesting him to

hand it over to PW.3. Therefore, PW.1 is the crucial witness to

prove these facts. In his evidence in chief he never whispered

about accused giving him MO.1 or any other liquor bottle. He

also did not say that he having received such liquor bottle gave

it to PW.3. Prosecution theory was suggested to him and he

denied it as false. Thus, witness tendered by the prosecution

was sought to be impeached on his credibility by the

prosecution itself. Thus, the evidence of PW.1 given on oath

does not help prosecution in establishing the crucial fact of

accused handing over liquor bottle to PW.1. However, learned

trial Court considered his evidence and considered Ex.P.15/his

Section 164 Cr.P.C. statement. It is that aspect of the matter

that is challenged in this appeal and learned counsel for

appellant submits that such approach of the learned trial Court

is against law and cited Sivakumar v. State by The Inspector

of Police1. No contrary ruling is cited before this Court by the

learned Special Assistant Public Prosecutor. Facts available

from substantive evidence alone deserve consideration for

2015 SCC Online Mad 6608

Dr. VRKS, J Crl.A.No.184 of 2009

arriving at any conclusion. Evidence of a witness given in a

Court of law on oath in the presence of accused recorded in

terms of Section 273 Cr.P.C. is what is called substantive

evidence. What PW.1 deposed before learned trial Court is

substantive evidence. What PW.1 stated before police and

recorded by police under Section 161 Cr.P.C. statement

contained in Ex.P.2 is only a former statement of the witness

and that is not substantive piece of evidence and that cannot be

used to prove a fact. Former statement recorded by police is

helpful to contradict the witness and not for corroborating the

witness by virtue of embargo contained in Section 162 Cr.P.C.

Former statement of a witness recorded under Section 164

Cr.P.C. by a learned Magistrate is also not a substantive piece of

evidence since that was recorded in the absence of accused.

Such statement recorded under Section 164 Cr.P.C. could be

used either for contradicting witness or for corroborating the

witness as is provided in Sections 145 and 157 of the Indian

Evidence Act, 1872. When a witness supported the case of

prosecution in his statement recorded under Section 164

Cr.P.C. and if at the trial he resiles from it and deposed contrary

to what was there in his former statement under Section 164

Dr. VRKS, J Crl.A.No.184 of 2009

Cr.P.C. then the former statement could be used to contradict

him. Ignoring what he deposed one cannot use Section 164

Cr.P.C. statement. This is the purport of the above stated

ruling. The above ruling further shows that the formerly

recorded Section 164 Cr.P.C. statement must be confronted to

the witness when he is on oath. I have gone through the

evidence on record and the prosecution did not confront Ex.P.15

to PW.1. It did not bring his attention to any of the contents of

Ex.P.15. The approach of the learned trial Court in utilizing

Ex.P.15 as substantive evidence even when PW.1 denied the

truth of its contents is certainly against law and cannot be

supported.

25. Where from accused procured Organophosphate

insecticide poison and when did he procure it is not proved by

any evidence. If he had mixed that poison into the liquor, the

seal of the bottle should be opened. There is no evidence from

PW.1 or other witnesses whether the bottle that was allegedly

handed over by accused to PW.1 was found sealed or opened.

PW.3 is the one who said that he got the liquor bottle from

PW.1. Even he did not depose whether it was found sealed or

opened. From his own evidence it emerged that he has been in

Dr. VRKS, J Crl.A.No.184 of 2009

the habit of consuming lot of liquor. If that be the case, in a

case of this nature whether the bottle was found sealed or

opened is of material importance. Prosecution by its slackness

did not choose to have that material aspect deposed by this

crucial witness. This is another vital lapse in the evidence of

prosecution, which the trial Court completely lost sight of.

26. According to PW.3, accused holding grudge because his

sister committed suicide and died and PW.3 is responsible for

her death. This aspect of the matter convinced the learned trial

Court to conclude that prosecution proved motive for accused to

kill PW.3. For two reasons this conclusion can be stated to be

incorrect. While cross-examining PW.3, defence elicited that

PW.3 was acquitted since there was a compromise. Thus long

prior to the present case incident the accused and PW.3 settled

their disputes and as a result of it only PW.3 was acquitted. It

is never the case of prosecution and never the evidence of PW.3

that even after that acquittal which took place about 1½ years

earlier to the present case, the accused and PW.3 had any other

discussion or any other dispute giving rise to a vengeful motive

for accused against PW.3. While cross-examining PW.3, it was

elicited that between PW.3 and accused there have been no

Dr. VRKS, J Crl.A.No.184 of 2009

talking terms. This is another crucial aspect in this case.

When there are no talking terms between them, how is that

PW.3 without murmer received the bottle from PW.1 which was

allegedly given by accused to PW.1. This fact and this

circumstance, though vital, was never considered by the trial

Court.

27. PW.2 is victim and accused is charged for the offence

under Section 307 I.P.C. This PW.2 in his evidence did not say

anything about MO.1 and he was not confronted with MO.1 and

he did not say who else was there with him when he consumed

liquor in the hotel. He did not support prosecution version.

When he suffered so much by consuming the liquor there was

no occasion for him to leave the culprit. If really the incident

took place in the manner alleged by the prosecution, this

witness would have certainly supported the case of prosecution.

Even according to prosecution, PW.1 is friend of PW.3 and PW.2

is not a friend of accused. Learned trial Court did not put its

regard to any of these aspects of the matter. PWs.6 and 7 are

not witnesses to any facts and they are witnesses to the aspect

of reaching to hotel and carrying away the deceased

B.Srinivasulu. PW.5 is inquest panchayatdar. Ex.P.4 is inquest

Dr. VRKS, J Crl.A.No.184 of 2009

report and he is not a witness to any facts alleged in either of

the charges. PW.8/Village Revenue Officer merely assisted

PW.12, the investigating inspector, for arrest and seizure of

MO.1. They are not witnesses to material facts. Their evidence

about seizure of MO.1 does not inspire any confidence in the

context of the fact analysis that was already rendered in the

earlier parts of this judgment. The evidence of PW.3 concerning

motive for the accused has no substance in view of the fact

admitted by PW.3 that there was a compromise between him

and the accused and as a result of that only he was acquitted in

the earlier criminal case and the fact that there have been no

talking terms between them thereby he improbabilised the

version of the prosecution about accused passing on the liquor

bottle. PW.1 is the very brother-in-law of PW.2. It is

undisputed that PW.2 consumed liquor and suffered. If that be

the case, there was no occasion for PW.1 not to speak to the

version of prosecution. However, he did not support the

prosecution version. PW.3 is not a witness for procurement of

poison, procurement of liquor bottle by the accused and

accused passing on the liquor bottle to PW.1. Thus, a liquor

bottle in the hands of PW.3 found no connection with accused.

Dr. VRKS, J Crl.A.No.184 of 2009

Rest of the evidence of PW.3 is only about consumption of this

liquor by others and the consequences suffered by them

because of that consumption. Therefore, charge mentioned

allegations against accused that he with intention or knowledge

of killing B.Srinivasulu and his failure to kill PW.2 failed on all

material aspects. The way the evidence was dealt with by the

learned trial Court is wanting in many aspects and many

respects. That the guilt is to be proved beyond reasonable

doubt and the law is that when the facts brought on record give

rise to any doubt, the benefit of that doubt should go to

accused. Learned trial Court except narrating the principles,

failed to apply the law to the facts available before it. The

approach of the trial Court makes it clear that it believed what

was there in Ex.P.15/Section 164 Cr.P.C. statement of PW.1

and therefore, on that anvil it read other evidence and

concluded that case was proved. Since it is found under law

that Ex.P.15 cannot be used as PW.1 did not support that

version, the whole logic of trial Court in reaching to its

conclusions falls apart. All the grounds urged in this appeal

have merit and all the submissions that were made before the

trial Court were never considered in their proper perspective.

Dr. VRKS, J Crl.A.No.184 of 2009

Having considered the entire evidence on record, this Court

finds that on all the crucial facts, there is absolutely no

evidence on record to find the guilt of this accused for death of

one and hurt to the other. Both charges shall fail. Both points

are answered in favour of the appellant.

28. In the result, this Criminal Appeal is allowed. The

conviction and sentence recorded against the appellant/accused

in the judgment dated 02.02.2009 of the learned

Principal Assistant Sessions Judge, Kurnool in Sessions Case

No.247 of 2008 for the offences punishable under Sections 304

and 307 I.P.C. is set aside and he is acquitted for the said

offences. Fine amount, if any, paid by the appellant/accused

shall be refunded to him.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 28.03.2023 Ivd

Dr. VRKS, J Crl.A.No.184 of 2009

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL APPEAL No.184 of 2009

Date: 28.03.2023

Ivd