Koonedala Balaji Balaiah vs State Of Ap.,
2022 Latest Caselaw 6511 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
                       AND
             THE HON'BLE DR. JUSTICE D. NAGARJUN

                 Criminal Appeal No.135 of 2014

JUDGMENT (per Hon'ble Sri Justice A. Venkateshwara Reddy):

This Criminal Appeal is directed against the judgment

dated 17.01.2014 in Sessions Case (SC) No.280 of 2010 on

the file of the learned IX Additional District and Sessions

Judge (Fast Track Court), Ranga Reddy District at L.B.

Nagar, wherein the accused No.1 was found guilty of the

offence punishable under Section 302 of the Indian Penal

Code, 1860 (for short 'IPC') and he was convicted for the

said offence under Section 235 (2) of the Criminal

Procedure Code, 1973 (for short 'Cr.P.C.') and sentenced to

undergo rigorous imprisonment for life and to pay a fine of

Rs.1,000/-, in default to suffer simple imprisonment for

three months. Whereas, the accused No.2 was found not

guilty of the offences punishable under Sections 302 and

109 of IPC and she was acquitted under Section 235 (1) of

Cr.P.C. for both the offences.

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2. The prosecution case in brief is that the de facto

complainant-PW.1 is native of Sajjapuram Village, Tanuku

Mandal, West Godavari District. She is the mother of

accused No.2-Bhagya Lakshmi. The marriage of accused

No.2 was performed with one Bhaskar Rao of

Machilipatnam about 10 years prior to this incident and

due to differences between the wife and husband, she left

his company, however, by that time she was conceived and

carrying pregnancy. As such, she started living with her

mother-PW.1 and gave birth to a male child on 12.07.2000.

He is named as Naga Siva Kumar, the deceased. The

accused No.2 along with her mother-PW.1 came to

Hyderabad in search of their livelihood and started living at

Subhasnagar. In the course of time, the accused No.1, who

is their neighbour has developed close relationship with

accused No.2, but the deceased boy who is aged about 10

years was objecting for accused No.2 going to the house of

accused No.1. While so, on 27.11.2010 when the deceased

boy-Naga Siva Kumar and his friend-Venkata Ramana-

PW.4 were on the way to watch a movie at Shapurnagar,

the accused No.1 took the deceased boy with him, went to

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watch the movie, returned back to home by 02:00 p.m.

PW.2, who is the sister of accused No.1, has served food to

them. Thereafter at about 03:30 p.m. PW.2 went to her

place of work to return the company uniform, the accused

No.1 has grabbed the opportunity, closed the doors,

hanged the deceased boy and smothered him to death with

a pillow. When PW.2 returned home, the accused A.1

informed that the deceased boy was not responding, then

PW.2 sprinkled water on his face since there was no

response, PW.2 rushed to the work place of accused No.2

and informed about the incident. Immediately, the

accused No.2 rushed to the house of accused No.1 and

found the dead body of the deceased, in the meanwhile,

PW.1 with the help of PW.3, who is her younger-son-in-law,

took the deceased boy to the hospital of Dr. Laxman, who

declared him dead. Accordingly, PW.1 gave a report to the

police suspecting the accused No.1 and a case in Crime

No.825 of 2010 for the offence punishable under Section

302 of IPC was registered.

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3. In the course of investigation, the accused No.1 was

arrested and pursuant to his confession the police have

also suspected the accused No.2, mother of the deceased,

as he was objecting for illicit intimacy of the accused No.2

with accused No.1. Accordingly, the investigation discloses

that the accused No.1 has committed the offence

punishable under Section 302 of IPC, whereas the accused

No.2 has committed the offence punishable under Section

302 read with Section 109 of IPC.

4. From the material available on record, it appears that

after giving necessary copies as required under Section 207

of Cr.P.C., the case was committed by the learned

Magistrate to the Court of Sessions. The learned

Metropolitan Sessions Judge at Ranga Reddy District

having registered this case, made over the same to the

learned IX Additional District and Sessions Judge, Ranga

Reddy District at L.B. Nagar, who framed the charges

against the accused 1 and 2 for the offences punishable

under Sections 302 and 109 of IPC, to which they pleaded

not guilty and claims to be tried.

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5. During trial on behalf of the prosecution, in all PWs.1

to 12 are examined and Exs.P.1 to P.7 are marked. After

closure of the prosecution evidence, both the accused were

examined under Section 313 of Cr.P.C. with reference to

incriminating material found against them, they denied the

said offences in toto and reported no defence evidence.

6. The trial Court upon considering the entire evidence

an on hearing both sides, found the accused No.2 not

guilty for the offences punishable under Section 302 read

with Section 109 of IPC and she was acquitted for the same

under Section 235 (1) of Cr.P.C. Whereas, the accused

No.1 was found guilty of the offence punishable under

Section 302 of IPC and he was sentenced to undergo

rigorous imprisonment for life and also to pay a fine of

Rs.1,000/-, in default of payment of fine amount, to suffer

simple imprisonment for a period of three months. Feeling

aggrieved by the judgment and conviction recorded against

him, the appellant/accused No.1 filed this appeal.

7. Heard the learned counsel for the appellant/accused

No.1 and the learned Public Prosecutor. The detailed

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submissions made on either side have received due

consideration of this Court.

8. It may be stated that the prosecution has in all

examined 12 witnesses in support of their case. Among

them, PW.1 is the de facto complainant, she is the

grandmother of the deceased and mother of the accused

No.2, she gave a report as in Ex.P.1 suspecting the accused

No.1. PW.2 is the younger sister of accused No.1, she is

the circumstantial witness. PW.3-Babji is the younger son-

in-law of PW.1, he also suspected accused No.1. PW.4 is a

friend of the deceased-Naga Siva Kumar. PW.5 is a panch

witness for inquest panchnama as in Ex.P.3. PW.6 is a

Registered Medical Practitioner, when the accused No.1

and PW.2 have taken the deceased boy to the hospital, he

declared the deceased as died. PW.7 is the owner of the

house where the accused No.1 was a tenant. PW.8 is the

Doctor, who conducted autopsy over the dead body of the

deceased and certified the cause of death. PW.9 is the

panch witness for the scene of offence panchnama as in

Ex.P.5. PWs.10 to 12 are the Investigating Officers.

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9. PW.1 is not an eye witness to the incident. This

witness testified that on that day when PW.4 and the

deceased were planning to watch a movie, on the way the

accused No.1 intercepted and took way the deceased with

him, they watched 'Orange' movie, returned back to home,

had lunch at the house of accused No.1. She does not

know what happened at the house of accused No.1. But at

about 04:45 p.m. PW.2 informed that the deceased boy was

not feeling well and he was not moving. Accordingly, they

have shifted that boy to the hospital of PW.6 where he was

declared dead. As such, she suspected the accused No.1

and gave a report to the police. In the cross-examination,

she has stated that she has no personal knowledge about

the incident that took place in her absence and she does

not know what was recorded by the police in her

statement.

10. PW.2 is the younger sister of accused No.1. This

witness turned hostile and did not support the case of the

prosecution. PW.3 is the younger son-in-law of PW.1 and

supported the evidence of PW.1 stating that they rushed to

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the house of accused No.1 and found the deceased boy in

unconscious state, he was taken to the hospital of PW.6

where the Doctor declared as dead. The witness further

stated that the accused No.1 also accompanied him to the

hospital. On enquiry, accused No.1 told him that he along

with the deceased went to the movie and returned to home

and on the way the deceased fell down from his cycle, but

he did not believe the version of accused No.1 and

suspected that the accused No.1 might have killed the

deceased boy. In the cross-examination, this witness

stated that the injuries that were found on the dead body

of the deceased were not looking like injuries caused by a

fall from a cycle.

11. PW.4 is a friend of the deceased boy. This witness

stated that on 27.11.2021 he along with the deceased were

planning to watch a movie, but on the way the accused

No.1 has picked up the deceased and they left to 'Orange'

movie. He saw the accused No.1 and the deceased even in

the afternoon. Later, he heard that the deceased received

injuries by falling from cycle. When he went to the house

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of accused No.1, he was told that the deceased was shifted

to hospital. Further stated that he heard from some of the

neighbours that the accused No.1 killed the deceased and

found blood on the cheeks of the deceased.

12. PW.5 is a panch for inquest as in Ex.P.3 and stated

that there were scratches and contusions on the dead body

of the deceased. PW.6 is the Doctor, who declared the

deceased boy as dead in the private hospital. PW.7 is the

owner of the house and stated that the accused No.1, his

parents and younger sister were tenants in his house and

that he came to know about the death of deceased boy.

The evidence of PWs.5 to 7 is not seriously disputed by the

accused and these witnesses were not even cross-

examined. Thus, the cause of death and the death of

deceased boy and that the accused No.1 along with his

family members living as tenants in the house of PW.7

remained unchallenged.

13. PW.9 is a panch witness for the scene of offence

conducted on the house of accused No.1. This witness

stated that Ex.P.5 is the scene of offence panchnama,

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police have seized one pillow and that he has no prior

acquaintance with the accused No.1. He has attested on

Ex.P.5.

14. PW.8 is the Doctor, who conducted autopsy over the

dead body of the deceased as in Ex.P.4 and testified that

the cause of death is asphyxia smothering and Ex.P.4 is

the post-mortem examination report. Though he was cross-

examined on behalf of the accused No.1, his oral evidence

and the contents of Ex.P.4 remained consistent throughout

the cross-examination. Accordingly, the death of deceased

and the cause of death of deceased is established with the

oral evidence of PW.8 and the contents of Ex.P.4 and also

the panch witness for inquest and the contents as in

Ex.P.3.

15. PWs.10 to 12 are the Investigating Officers. PW.10

has received Ex.P.1 from PW.1 and issued First

Information Report as in Ex.P.6, handed over the

investigation to PW.11, who verified the investigation,

visited the scene of offence, examined the witnesses,

effected arrest of accused No.1, recorded his confession in

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the presence of panch witnesses LW.13-Y. Malla Reddy and

LW.14-M. Lingam as in Ex.P.7, but no incriminating

material was seized under Ex.P.7. He also arrested the

accused No.2, collected material objects, sent them for

chemical examination and handed over the C.D. file to

PW.12, who verified the investigation and filed the charge

sheet.

16. Thus, out of 12 witnesses examined by the

prosecution, PW.2 is the only circumstantial witness, who

is the younger sister of the accused No.1, she saw the

deceased for the first time in unconscious state, as

informed to her by accused No.1 and immediately rushed

to the work place of accused No.2 and PW.1 and informed

them. Thereafter, the deceased boy was taken to the

hospital to PW.6, where he was declared as dead.

17. Be it stated that there is no eye witness to the

incident and the prosecution is totally relying on

circumstantial evidence. PWs.1 & 3 have only suspected

accused No.1, since the deceased boy was asking PW.1 &

A.2 not to go to the house of accused No.1. Though it is

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alleged by the prosecution that accused No.1 has developed

illicit intimacy with accused No.2 and promised to marry

her subject to the condition that she should not have

children as such, the accused No.2 abetted the accused

No.1 to kill the deceased boy, none of the witnesses have

spoken through about the alleged illicit intimacy between

the accused No.1 and accused No.2 or the proposal of

accused No.1 to marry the accused No.2. That apart, the

accused No.2 was found not guilty by the trial Court for

abetment to cause death of the deceased and she was

acquitted for the offences punishable under Section 302

read with Section 109 of IPC. Though PWs.1 and 3 have

raised suspicion against the accused No.1, they did not

mention in the entire evidence as to why they started

suspecting the accused No.1, except PW.1 mentioning in

her evidence that since the deceased boy prior to his death

asked herself and accused No.2 not to visit the house of

the accused No.1, they suspected the involvement of

accused No.1 in the death of deceased boy.

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18. The law is well settled that suspicion, however, strong

may be, it cannot take place of the proof and the accused

cannot be convicted on mere suspicion, no matter how

strong it may be. Similarly, where the circumstances are

susceptible of two equally possible inferences, the Court

should accept the inference, which favours the accused

rather than an inference which goes in favour of the

prosecution. Where the prosecution case squarely rests on

circumstantial evidence, the inference of guilt can be

justified only when all the incriminating facts and

circumstances are found to be incompatible with the

innocence of the accused or guilt of any other person.

Further, such circumstances from which an inference of

the guilt of the accused is drawn have to be proved beyond

any reasonable doubt and have to be shown to be closely

connected with the principal fact sought to be inferred from

those circumstances. Equally, the principle of "last seen

alive" applies only when the time gap is so small, that the

possibility of any other person being the author of the

crime becomes impossible.

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19. In the present case, PWs.1 & 3 have only suspected

the accused No.1 since he was objecting PW.1 and A.2

from going to his house, but there is no basis for it. PW.4-

friend of the deceased boy has stated that on that day

when he along with the deceased were going to watch

movie, the accused No.1 took the deceased with him and

both of them went to 'Orange' movie, thereafter also he saw

the deceased with the accused No.1. It is the evidence of

PW.2 that she served food to accused No.1 and the

deceased boy. Thereafter, they took rest and only at about

03:30 p.m. she went to her work place, by the time she

returned back, it was informed to her that the deceased

was not responding. Thus, the accused No.1 and the

deceased alone were there in the house. Later, PW.3,

accused No.2 along with accused No.1 have taken the

deceased boy to the hospital of PW.6 where he was

declared as dead.

20. Therefore, on overall consideration of the entire

evidence, coupled with the fact that the accused No.2 is

found not guilty for abetment to cause the death of

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deceased boy and there is no evidence of the accused No.1

having illicit intimacy with the accused No.2, the mere fact

that PWs.1 & 3 have suspected the involvement of accused

No.1 itself or the deceased was found last seen alive with

the accused No.1, is not sufficient to establish his guilt for

the offence punishable under Section 302 of IPC. It is

pertinent to note that as per the evidence of PW.11 though

pillow was seized under the cover of panchnama-Ex.P.5, it

also not exhibited and the Forensic Science Laboratory

report is not filed to establish the blood marks/stains, if

any, on the said pillow. Thus, there is no evidence to show

that the accused No.1 used the said pillow for smothering

the deceased or that he strangulated the deceased boy and

made him to die due to asphyxia or due to smothering. In

such circumstances, it is not safe to solely rely upon the

evidence of PW.8 and contents of Ex.P.4 for recording the

guilt of the accused No.1 for the offence punishable under

Section 302 IPC. In that view of the matter, in our

considered opinion the trial Court has committed error in

finding the accused No.1 guilty of the offence punishable

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under Section 302 of IPC and the appeal deserves to be

allowed.

21. In the result, the Criminal Appeal is allowed setting

aside the judgment and conviction dated 17.01.2014 in SC

No.280 of 2010 on the file of the learned IX Additional

District and Sessions Judge (Fast Track Court), Ranga

Reddy District at L.B. Nagar recorded against the appellant

/accused No.1. Consequently, the appellant/ accused No.1

is acquitted under Section 235(1) of Cr.P.C. for the offence

punishable under Section 302 of IPC. He shall be set at

liberty forthwith if not required in any other case. He is

entitled for the refund of fine amount, if any paid by him.

__________________________________ A. VENKATESHWARA REDDY, J.

_______________________ Dr. D. NAGARJUN, J.

Date: 06.12.2022 Isn