Ramannarender Ramoru Narender vs The State Of Ap., Rep By Its P.P
2023 Latest Caselaw 193 Tel

              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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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

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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

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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.

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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

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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

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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,

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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

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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.

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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

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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.

AAR, J & JS, J Crl.A.No.857 of 2013

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

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