Munigala Ramesh Babu, Hyd Anr vs State Of Telangana, Rep. By P.P., ...
2023 Latest Caselaw 260 Tel

       THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
                          AND
       THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

              CRIMINAL APPEAL No.1206 of 2014


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

appellants/A1    and   A2,   aggrieved    by   the     judgment,   dated

09.10.2014, passed in S.C.No.139 of 2014 by the Metropolitan

Sessions Judge, Hyderabad, whereby, the Court below convicted

the appellants/A1 and A2 of the offence under Section 302 read

with 34 of IPC and sentenced them to undergo imprisonment for

life and to pay a fine of Rs.10,000/- each, in default, to undergo

simple imprisonment for four months each.


2.    We have heard the submissions of the learned counsel for

the appellants/A1 and A2, the learned Public Prosecutor appearing

for the respondent/State and perused the record.

3. The case of the prosecution, in brief, is as follows:

On 09.03.2013, while PW.1 and other police personnel were

on patrolling duty in the area of Chikkadpally Police Station, at

about 21:10 hours, they received a message on VHF about a

quarrel that took place at Nagamaiahkunta locality. They

AAR & JS, JJ Crl.A.No.1206 of 2014

proceeded to that place and found a male person aged 45 years

lying in unconscious state, with bleeding injuries on his head. On

enquiry, they came to know that some unknown person was

beaten up by one Ramesh Babu and two others of

Nagamaiahkunta. They shifted the injured person to Gandhi

Hospital, Secunderabad, and got him admitted there for treatment.

Later, PW.1 submitted a report to the Station House Officer,

Chikkadpally Police Station, basing on which, LW.15-Vemula

Kishore, SI of Police, Chikkadpally Police Station, registered a case

in Crime No.87 of 2013 against A1 and others for the offence

under Section 324 read with 34 of IPC, issued FIR and handed

over further investigation to PW.9-SI of Police, Chikkadpally Police

Station. PW.9 took up the investigation, proceeded to Gandhi

Hospital and found the injured in unconscious state, proceeded to

the scene of offence on the next day, conducted Scene of Offence

panchanama under Ex.P7 in the presence of PW.6 and LW.8-

Narsing, altered the section of law to Section 307 read with 34 of

IPC under Ex.P8-Alteration Memo, apprehended A1 and A2,

recorded the confessional statement of A1 in the presence of

PWs.7 and 8, recovered a dog chain, produced A1 and A2 before

the Court for judicial remand and handed over the CD file to PW.10

for further investigation. PW.10 took up further investigation and

AAR & JS, JJ Crl.A.No.1206 of 2014

on receipt of information regarding the death of the deceased on

15.03.2013 at about 12:25 hours, he altered section of law to

Section 302 read with 34 of IPC, proceeded to Gandhi Hospital and

conducted inquest over the dead body of the deceased under

Ex.P11 in the presence of LW.12-Rambabu and LW.13-Sukhadev

Jadav, sent the corpse for Post-Mortem Examination, arrested A3

on 19.03.2013 and sent him to Court for judicial remand and after

receipt of PME Report under Ex.P13 and after completion of

investigation, laid charge sheet before the learned IX Additional

Chief Metropolitan Magistrate, Hyderabad, against A1 to A3 for the

offence under Section 302 read with 34 of IPC.

4. The learned Magistrate had taken cognizance against A1 to

A3 for the offence under Section 302 read with 34 of IPC,

registered the same as P.R.C.No.11 of 2013 and committed the

same to the Metropolitan Sessions Division, Hyderabad, under

Section 209 of Cr.P.C., since the offence under Section 302 of IPC

is exclusively triable by the Court of Session. On committal, the

Court below numbered the case as S.C.No.139 of 2014 and

proceeded with the trial of the Case.

5. On appearance of A1 to A3, the Court below framed the

charge against them for the offence under Section 302 read with

AAR & JS, JJ Crl.A.No.1206 of 2014

34 of IPC, read over and explained to them, for which, they

pleaded not guilty.

6. To prove the guilt of A1 to A3, the prosecution examined

PWs.1 to 10 and got marked Exs.P1 to P13, besides MO.1.

7. PW.1-B.Navin Kumar, a police constable, is the complainant.

PW.2-P.Suverchala, another complainant, is stated to be an eye-

witness to the occurrence of the subject incident. PW.3-D.Vijaya

Lakshmi, PW.4-M.Jaya Lakshmi and PW.5-Naveen are stated to be

other eye-witnesses, who were declared hostile. PW.6-Md.Ghouse

is a panch witness for Ex.P6-Scene of Offence panchanama, who

was declared hostile. PW.7-P.Iswar and PW.8-P.Sai Kumar are

panch witnesses for confession of accused and Ex.P10-Seizure

Report, who were declared hostile. PW.9-P.Jeevaratnam is the SI

of police who conducted investigation of the case in part and

PW.10-P.Sreedhar is Inspector of Police, who completed

investigation and laid charge-sheet before the Court concerned.

Ex.P1 is the complaint lodged by PW.1. Ex.P2 is another complaint

lodged by PW.2. Ex.P3 is statement of PW.3 recorded under

Section 161 of Cr.P.C. Ex.P4 is statement of PW.4 recorded under

Section 161 of Cr.P.C. Ex.P5 is statement of PW.5 recorded under

Section 161 of Cr.P.C. Ex.P6 is the signature of PW.6 on the

AAR & JS, JJ Crl.A.No.1206 of 2014

Scene of Offence Panchanama. Ex.P7 is the Scene of Offence

Panchanama. Ex.P8 is the Section Alteration Memo. Ex.P9 is the

admissible portion of confessional statement of A1. Ex.P10 is the

Seizure Report in respect of MO.1. Ex.P11 is the Inquest Report.

Ex.P12 is the FIR. Ex.P13 is the Postmortem Examination report.

MO.1 is the iron dog chain.

8. When A1 to A3 were confronted with the incriminating

material appearing against them and were examined under Section

313 of Cr.P.C., they denied the same and claimed to be tried. On

behalf of A1 to A3, no evidence, either oral or documentary, has

been adduced.

9. The Court below, having considered the submissions made

and the evidence available on record, vide the impugned

judgment, dated 09.10.2014, while acquitting A3, convicted A1

and A2 of the offence punishable under Section 302 read with 34

of IPC. Aggrieved by the same, A1 and A2 preferred this appeal.

10. Learned counsel for the appellants/A1 and A2 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,

AAR & JS, JJ Crl.A.No.1206 of 2014

which resulted in miscarriage of justice. There are material

contradictions in the evidence of PW.2 and her evidence is

inconsistent and untrustworthy. The essential ingredients of

Section 302 read with 34 of IPC are not made out against the

appellants/A1 and A2. Further, PWs.3 to 8 did not support the

case of prosecution and were declared hostile. The appellants/A1

and A2 are innocent persons and they were falsely implicated in

the subject case. The appellants/A1 and A2 and the deceased are

strangers to each other and there were no previous disputes

between them. Hence, no motive can be attributed to the

appellants/A1 and A2 to do away with the life of the deceased.

There are laches on the part of investigating officer in conducting

investigation of the case. Further, the alleged confession of the

appellants/A1 and A2 and alleged recovery of MO.1 pursuant to

the confession is inadmissible in law, inasmuch as the alleged

confession was made in the presence of the investigating officer

and the panch witnesses to the alleged recovery of MO.1 did not

support the same. The appellants/A1 and A2 did not cause the

subject death of the deceased, but the deceased died due to fall on

a stone in a galata. The prosecution failed to examine the doctor

who conducted autopsy on the dead body of the deceased and as

such, in the absence of legally proved medical evidence, no finding

AAR & JS, JJ Crl.A.No.1206 of 2014

can be recorded that the deceased died due to alleged beatings of

the appellants/A1 and A2. Without there being any cogent and

convincing evidence on record, the Court below recorded

conviction against the appellants/A1 and A2 for the offence under

Section 302 read with 34 of IPC, which is erroneous. The findings

of the Court below are based on assumptions and presumptions.

The prosecution miserably failed to prove the guilt of the

appellants/A1 and A2 beyond all reasonable doubt. It is a fit case

to set aside the conviction recorded against the appellants/A1 and

A2 and acquit them of the offence charged against them and

ultimately prayed to allow the appeal by setting aside the

conviction and sentence recorded against the appellants/A1 and

A2.

11. Per contra, learned Public Prosecutor would submit that the

evidence placed on record clinchingly prove that the deceased was

beaten to death by the appellants/A1 and A2. There is direct

evidence of PW.2 to that effect. The evidence of PW.2 finds

support and corroboration from the evidence of PW.1. Though the

evidence of PW.1 may amount to hearsay evidence, but it is

admissible for certain purposes, inasmuch as it is trite in law that

the evidence of a statement made to a witness by a person who is

not himself called as a witness is not a hearsay evidence and is

AAR & JS, JJ Crl.A.No.1206 of 2014

admissible when it is proposed to establish by evidence, not the

truth of the statement, but the fact that it had been made.

Further, the contradictions in the evidence of PW.2 emphasized by

the learned counsel for appellants/A1 and A2 are only peripheral in

nature and do not go to the root of the case. Minor contradictions

are bound to occur in the evidence of a witness due to passage of

time and those minor contradictions cannot be given any undue

weightage and in any event, those minor contradictions do not

render the whole deposition untrustworthy. The evidence of PW.2

is cogent, consistent and unerringly points towards the guilt of the

appellants/A1 and A2. The oral and documentary evidence placed

on record clinchingly proves that the deceased was beaten to

death by the appellants/A1 and A2. Though the doctor who issued

Ex.P13-PME Report was not examined, its genuineness cannot be

doubted since it was sought from Government Hospital. All the

necessary ingredients of the offence under Section 302 of IPC are

made out against the appellants/A1 and A2. The Court below

appreciated the evidence on record in correct perspective and

rightly convicted and sentenced the appellants/A1 and A2 of the

offence under Section 302 of IPC. The prosecution proved the

guilt of the appellant/accused beyond all reasonable doubt. The

AAR & JS, JJ Crl.A.No.1206 of 2014

judgment under challenge does not warrant interference by this

Court and ultimately prayed to dismiss the Criminal Appeal.

12. 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 appellants/A1 and A2 had caused the subject death of the deceased on 09.03.2013 at Nagamaiahkunta, Hyderabad?

2) Whether the prosecution proved the guilt of the appellants/A1 and A2 for the offence under Section 302 read with 34 of IPC beyond all reasonable doubt?

3) Whether the conviction and sentence recorded against the appellants/A1 and A2 for the offence punishable under Section 302 read with 34 of IPC is liable to be set aside?

4) To what result?

POINTS:-

13. As per the case of prosecution, on 09.03.2013, while PW.1

and others were on patrolling duty, they received a message about

a quarrel that occurred at Nagamaiahkunta. They proceeded to

that place and found the deceased in unconscious state. On

enquiry, they came to know that the deceased was beaten by the

appellant/A1 and two others and they shifted the deceased to

Gandhi Hospital. It is apt to mention here there are two reports

lodged in this case, one by PW.1 and the other by PW.2. Initially,

the case was registered for the offence under Section 324 r/w 34

AAR & JS, JJ Crl.A.No.1206 of 2014

of IPC, later it was altered to Section 307 read with 34 of IPC and

thereafter, it was altered to Section 302 read with 34 of IPC.

14. PW.2 is the star witness in this case. She is stated to be an

eye witness to the alleged beatings of the appellants/A1 and A2. A

meticulous reading of the evidence of PW.2 makes it clear that

there are several contradictions in her evidence which goes to the

root of the matter and renders her evidence unreliable. In her

examination-in-chief, she stated that she saw the appellants/A1

and A2 beating the deceased in a drunken condition upon which,

the deceased became unconscious and that LW.4-Aruna and PW.4

were also present at the time of incident. However, in her cross-

examination, it was elicited that she came out on hearing sound of

some galata and that about 50 persons gathered at the time of

galata and in the said galata, the deceased fell on a stone. She

further stated in her cross-examination that the deceased was

already lying on the ground by the time she came out. It was also

elicited that she commands respect in the locality and that the

appellants/A1 and A2 do not give respect to her and that earlier,

she gave a report against the appellants/A1 and A2. Further,

apart from PW.2, PW.1 also supported the case of prosecution.

However, the evidence of PW.2 does not find corroboration with

the evidence of PW.1 on material aspects. While PW.1, who is a

AAR & JS, JJ Crl.A.No.1206 of 2014

police constable, stated in his evidence that himself and others

called 108 ambulance and shifted the deceased to Gandhi Hospital,

the evidence of PW.2 is that police came there after the deceased

was shifted to the hospital. As it appears, the evidence of PW.2

implicating the appellants/A1 and A2 is full of inconsistencies and

does not inspire confidence to act upon. There is another facet of

this case, which remains totally unexplained by the prosecution.

Ex.P.13 is the PME report of the deceased, wherein, the cause of

death was recorded as "due to head injury". The doctor, who

according to the prosecution conducted autopsy over the dead

body of the deceased and issued Ex.P13-PME Report, was not

examined and no explanation was offered by the prosecution as to

why he/she was not examined. It is no doubt true that PW.10-

investigating officer has spoken in his evidence about Ex.P13-PME

Report. However, this Court cannot presume the cause of death,

as it cannot rely upon Ex.P13, as the said document was not

proved in terms of the provisions of the Evidence Act. Though the

learned Public Prosecutor has contended that Ex.P13 was sought

from the Government hospital and therefore, its genuineness

cannot be disputed, we are not inclined to concur with the said

contention. Merely because a document is obtained from the

custody of the Government Hospital, its genuineness would not

AAR & JS, JJ Crl.A.No.1206 of 2014

stand automatically proved. The person who has authored the said

document or who has issued such document must enter into the

witness box and depose before the Court with regard to its

contents. Unless such document is proved in accordance with law,

it cannot enure to the benefit of the party on whose behalf it is

marked. In the instant case, in the absence of legally proved

medical evidence, this Court cannot presume the nature of injuries

and the implication of those injuries on the deceased.

15. Another aspect is that the witnesses who were stated to be

eye-witnesses, i.e., PW.3, PW.4 PW.5, the witness for scene of

offence panchanama, i.e., PW.6 and witnesses for alleged seizure

of MO.1, i.e., PWs.7 and 8 turned hostile and did not support the

case of the prosecution. It is a settled canon of appreciation of

evidence that a presumption cannot be raised against the accused,

either of fact or in evidence. Equally true is the rule that evidence

must be read as it is available on record. The case would have

been totally different, if PWs.3 to 8 had supported the case of the

prosecution. True it is, it is not always necessary that wherever

the witness turn hostile, the prosecution case must fail; firstly the

part of the statement of such hostile witnesses that supports the

case of the prosecution can always be taken into consideration;

and secondly, where the sole witness is an eye-witness who can

AAR & JS, JJ Crl.A.No.1206 of 2014

give a graphic account of the events which he/she had witnessed,

with some precision, cogently, and if such a statement is

corroborated by other evidence, documentary or otherwise, then

such statement, in the face of the hostile witness, can still be a

ground for holding the accused guilty of the crime that was

committed. The Court has to act with greater caution and accept

such evidence with greater degree of care, in order to ensure that

justice is done. The evidence so considered should unequivocally

point towards the guilt of the accused.

16. The law regarding hostile witnesses is no more res integra.

It is settled legal proposition that the evidence of a prosecution

witness cannot be rejected in toto, merely because the prosecution

chose to treat him as hostile and cross-examine him. The evidence

of such witnesses cannot be treated as effaced or washed off the

record altogether, but the same can be accepted to the extent that

their version is found to be dependable on a careful scrutiny

thereof. (See Bhagwan Singh Vs. The State of

Haryana1; Rabindra Kumar Dey Vs. State of Orissa2; Syed

AIR 1976 SC 202

AIR 1977 SC 170

AAR & JS, JJ Crl.A.No.1206 of 2014

Akbar Vs. State of Karnataka3; and Khujji @ Surendra Tiwari

Vs. State of Madhya Pradesh4).

17. In State of U.P. Vs. Ramesh Prasad Misra and Another5,

the Hon'ble Apex Court held that evidence of a hostile witness

would not be totally rejected if spoken in favour of the prosecution

or the accused, but requires to be subjected to close scrutiny and

that portion of the evidence, which is consistent with the case of

the prosecution or defence, can be relied upon. A similar view has

been reiterated by the Hon'ble Apex Court in Balu Sonba Shinde

Vs. State of Maharashtra6; Gagan Kanojia and another Vs.

State of Punjab7; Radha Mohan Singh @ Lal Saheb and

others Vs. State of U.P.8; Sarvesh Naraian Shukla Vs.

Daroga Singh and others9 and Subbu Singh Vs. State10.

18. In C.Muniappann and others Vs. State of Tamil Nadu11,

the Hon'ble Apex Court, after considering all the earlier decisions

on this point, summarized the law applicable to the case of hostile

witnesses as under:

AIR 1979 SC 1848

AIR 1991 SC 1853

AIR 1966 SC 2766

(2002) 7 SCC 543

(2006) 13 SCC 516

AIR 2006 SC 951

AIR 2008 SC 320

(2009) 6 SCC 462

JT 2010 (9) SC 95

AAR & JS, JJ Crl.A.No.1206 of 2014

"70.1 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

70.2 In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.

70.3 Some omissions, improvements in the evidence of the PWs have been pointed out by the learned Counsel for the appellants, but we find them to be very trivial in nature.

71. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (vide Sohrab and Anr. v. The State of M.P., AIR 1972 SC 2020; State of U.P. v. M.K. Anthony, AIR 1985 SC 48; Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat, AIR 1983 SC 753; State of Rajasthan v. Om Prakash, AIR 2007 SC 2257; Prithu @ Prithi Chand and Anr. v. State of Himachal Pradesh, (2009) 11 SCC 588; State of U.P. v. Santosh Kumar and Ors., (2009) 9 SCC 626 and State v. Saravanan and Anr, AIR 2009 SC 151)"

19. In the light of the above settled legal preposition of law, let

us closely scrutinize the evidence of hostile witnesses. Before

declaring PW.3 hostile, she stated in her evidence that on hearing

sound of ambulance, she came out and saw the deceased lying on

ground and that the police did not record her statement. PW.4

was also declared hostile, as she resiled from her previous version.

She also stated that she heard the sound of ambulance and came

out and that she saw a person lying on the ground and she saw the

AAR & JS, JJ Crl.A.No.1206 of 2014

appellant/A1 standing there and the police were also present by

then. PW.3 and PW.4 did not state in their evidence that they saw

the appellants/A1 and A2 beating the deceased with MO.1-iron dog

chain. The evidence of PW.5 assumes importance. After declaring

him hostile, he was cross examined by the defence counsel,

wherein, he stated as follows:

"By the time I went out PWs.2 to 4 were already present. The witness again says:- that all of them went to the spot at the same time. It is true that the accused filed case against PW.2 under SC/ST Act. Witness adds:- the same was compromised. It is true that the compromise was affected by the elders of the locality. It is true that PW.2 raises quarrels with A1 and A2 and she also filed a case against accused in order to send them to jail. She is the leader of the locality and she made out statements recorded by the police as she wanted. We refused to state to the police as stated by her, but she expressed that she would look after everything."

20. When the aforementioned statements of PWs.2 to 5 is

viewed in juxtaposition with the afore-stated settled legal position

with regard to the evidentiary value of hostile witness, the

possibility of PW.2 falsely implicating the appellants/A1 and A2 in

the subject case cannot be ruled out. Further, PW.6, who was also

declared hostile, denied the suggestion put by the public

prosecutor after declaring him hostile that he acted as a witness

for scene of offence panchanama. PWs.7 and 8, who are stated to

be witnesses for confession of the accused and seizure of MO.1, did

not support the case of prosecution. Before declaring them hostile,

they stated that the police obtained their signatures on

AAR & JS, JJ Crl.A.No.1206 of 2014

panchanamas stating that they have recovered a dog chain from

the house of the appellant/A1. They also denied the suggestion

put to them in the cross-examination by the public prosecutor that

the appellant/A1 confessed his guilt in their presence and based on

the said confession, they went to the house of the appellant/A1

and at his instance, a dog chain was recovered. As regards the

recovery of MO.1 alleged to have been made in the present case,

firstly, the said recovery is not in conformity with the provisions

of Section 27 of the Indian Evidence Act, 1872, and secondly, the

witnesses for recovery have turned hostile, thus creating a serious

doubt with regard to the said recovery.

21. There remains the evidence of the investigating officers, i.e.,

PWs.9 and 10. We are certainly not indicating that despite all the

above, the statement of the Police Officer(s) with regard to

recovery and other matters should be altogether disbelieved.

However, where the statement of such witness is not reliable and

does not inspire confidence, then the accused would be entitled to

the benefit of doubt, in accordance with law. True it is, the official

acts of the police should be presumed to be regularly performed

and that there is no occasion for the Courts to begin with initial

distrust to discard such evidence and that mere absence of

independent witnesses, when the investigating officer recorded the

AAR & JS, JJ Crl.A.No.1206 of 2014

statement of the accused and the article was recovered pursuant

thereto, is not a sufficient ground to discard the evidence of the

Police Officer relating to recovery at the instance of the accused.

However, it is also equally true where the statement of the Police

Officer itself is unreliable and the recovery of material objects is

not in accordance with the provisions of Evidence Act, then it may

be difficult for the Court to accept the recovery as lawful and

legally admissible. In the instant case, in view of the unreliable

and improbable evidence of PW.2 coupled with the hostility of

PWs.3 to 8, conviction cannot be based on the uncorroborated

evidence of the investigating officers, i.e., PWs.9 and 10. Further,

both the investigating officers have categorically stated in their

cross-examination that the deceased is a stranger to the

appellants/A1 and A2 and that there were no previous disputes

between them. Thus, a favourable presumption can be raised in

favour of the appellants/A1 and A2 that they have no grudge or

animosity against the deceased, which made them to resort to the

extreme step of taking away his life. Thus, it can be safely

concluded that the prosecution failed to prove the motive on the

part of the appellants/A1 and A2, which is of prime importance in a

case falling under Section 302 of IPC.

AAR & JS, JJ Crl.A.No.1206 of 2014

22. The Court below, relying on the decision of the Hon'ble High

Court of Calcutta in Pratap Kumar Ganguly Vs. Anindita

Ganguly12, held that though the evidence of PW.1 with regard to

the complicity of the accused amounts to hearsay evidence, it is

admissible when it is proposed to establish by the evidence, not

the truth of the statement, but the fact that it had been made.

The said decision was based on the decision of Privy Council in

Subramanian Vs. Public Prosecutor {(1956) 1 WLR 965 at

page 970 (P.C.)}. The law propounded therein is that in deciding

whether evidence is admissible of what someone, other than the

testifying witness, said or wrote, the test is the purpose for which

the evidence is tendered. So, if both the making of a statement by

a person and the truth of its contents are the facts in issue, the

evidence of what that person said, may be tendered in proof of the

former fact, but the truth of the contents will still have to be

proved by other evidence. In the instant case, even if the

statement of PW.1 that he came to know from the locality people

that the appellant/A1 and others attacked the injured is taken into

consideration, the same cannot form sole basis for recording

conviction against the accused, in the absence of any corroboration

to the same. It is settled law that each case has to be decided on

its own merit. As stated above, in view of the improbable and

1997 CWN 53 = I (1994) DMC 633

AAR & JS, JJ Crl.A.No.1206 of 2014

contradictory evidence of PW.2 coupled with the hostility of other

material prosecution witnesses, we find it difficult to hold that the

prosecution proved the guilt of the appellants/A1 and A2 beyond

all reasonable doubt.

23. On a cumulative reading and appreciation of the entire

evidence on record, we are of the considered view that the Court

below had fallen in error in appreciating the evidence on record, in

accordance with law. The prosecution must prove its case beyond

any reasonable doubt. Such is not the burden on the accused. The

Court below had acted on certain legal and factual presumptions,

which cannot be sustained on the basis of the evidence before us

and the afore-noticed principles of law. The case of the

prosecution, thus, suffers from proven improbabilities, infirmities,

contradictions and the statement of PW.2, an eye-witness who fully

supported the case of prosecution, is not reliable and worthy of

credence. The prosecution miserably failed to prove the guilt of

the appellants/A1 and A2 for the offence under Section 302 read

with 34 of IPC beyond all reasonable doubt. The findings recorded

and the conclusions reached by the Court below in finding the

appellants/A1 and A2 guilty of the offence punishable under

Section 302 read with 34 of IPC are not in tune with the evidence

on record. The submissions advanced on behalf of the

AAR & JS, JJ Crl.A.No.1206 of 2014

appellants/A1 and A2 merit consideration and the appeal deserves

to be allowed.

24. In the result, the conviction and sentence recorded against

the appellants/A1 and A2 of the offence under Section 302 read

with 34 of IPC, vide judgment, dated 09.10.2014, passed in

S.C.No.139 of 2014 by the learned Metropolitan Sessions Judge,

Hyderabad, is set aside. The appellants/A1 and A2 are acquitted

of the offence under Section 302 read with 34 of IPC.

Consequently, the appellants/A1 and A2 shall be set at liberty

forthwith, if they are not required in any other case or crime. Fine

amount, if any, paid by them, shall be refunded to them.

25. The Criminal Appeal is, accordingly, allowed.

Miscellaneous petitions, if any, pending in this appeal, shall

stand closed.

_____________________ A. ABHISHEK REDDY, J

___________________ JUVVADI SRIDEVI, J

20th January, 2023 Bvv