JUDGMENT
R.M. Bapat, J.
1. The appellant-sole accused was tried by the learned Sessions Judge in S.C. No.292 of 1999 for an offence punishable under Section 302 of the Indian Penal Code. On evidence, the learned Sessions Judge found him guilty and, therefore, proceeded to convict him and sentenced him to suffer imprisonment for life and also to pay a fine of Rs.1,500/- in default to suffer Rigorous Imprisonment for one month and 15 days.
2. The substance of the charge against the accused was that on the intervening night of 6th/7th June 1997 between 1 A.M. and 3 A.M., at Rellivalasa village, the accused alleged to have caused the death of one Pinninti Appalanaidu, aged about 30 years, by stabbing him with a knife.
3. The prosecution story can be briefly narrated as follows:- P.W.1 happened to be the mother and P.W.3 happened to be the brother of the deceased. The deceased and the accused were friendly and they were residing in Rellivalasa village. The deceased used to eke out his livelihood by doing poultry business and chit fund business and he was also running a tailoring shop. The deceased used to run his poultry business in the land which was taken on lease from one Moida Narasimhulu, who is examined as P.W.2, for a period of three years on a rent of Rs.1,500/-. He used to sleep in his poultry farm during nighttime, which is situated at a distance of one kilometer from the village. Along with the deceased, P.Ws.1 and 3 were also looking after the farm business. There was no electric supply to the farm of the deceased and that he was running it only with kerosene lamps.
4. It is further stated by the prosecution that the accused was also having a poultry farm which was situated at a distance of 5 to 6 plots away from that of the deceased, wherein he used to reside along with his family. He was having electric supply to his poultry farm. One day, the supply of electricity was cut off by the Electricity Board demanding him to pay a sum of Rs.25,000/-. Further, it is alleged that the accused borrowed Rs.50,000/- from the deceased. The accused sold his farm to one S. Suryanarayana, who was examined as P.W.5. Three days prior to the date of incident, there was a quarrel between the accused and the deceased regarding repayment of the money. On the date of incident, the deceased took his meals, went to his farm to sleep. Thereafter, on the next day, P.W.1 informed the police about the death of the deceased.
5. It is further stated by the prosecution through the mouth of P.W.3, who happened to be the brother of the deceased, that the accused borrowed a sum of Rs.25,000/- from the deceased for paying penalty imposed by the A.P. State Electricity Board for pilferage of electricity by the accused to his poultry farm. Further, the accused also owed a sum of Rs.20,000/- to the deceased towards chit amount. Therefore, one week prior to the incident, there was a quarrel between the accused and the deceased regarding repayment of the said amount.
6. As per the version of P.W.8, the Head Constable, on 7-6-1997 at about 4 A.M., the accused came to the Police Station and confessed to have caused the death of the deceased by stabbing him with a knife in thatched shed. P.W.8 recorded the statement of the accused and obtained his signature. On the strength of the information given by the accused himself, P.W.8 registered the case in Crime No.51/1997 against the accused for an offence punishable under Section 302 of the Indian Penal Code, issued copies of F.I.R. to all concerned. Thereafter, he informed the incident to the Inspector of Police, who was examined as P.W.9, and handed over the custody of the accused to the Sentry at the Police Station.
7. P.W.9, on receiving the information from P.W.8, proceeded to the Police Station and thereafter to the scene of offence on 7-6-1997 and around 7.30 A.M., he reached the scene of offence, observed the same and by taking the help of P.W.6, he got the scene of offence photographed. The photographs are produced on record as Exs.P-7 to P-11. He prepared the rough sketch of scene of offence which is produced on record as Ex.P-15. Then he conducted inquest in the presence of P.W.4 and another. Ex.P-1 is the inquest report. During inquest, he recorded the statement of P.Ws.1, 2 and 3.
8. On 7-6-1997, P.W.7, the Civil Assistant Surgeon, Government Hospital, Vizianagaram, conducted autopsy over the dead body of the deceased and issued Ex.P-12-post mortem certificate. On 7-6-1997, P.W.9 arrested the accused and brought him to Poosapatirega Police Station, interrogated him and seized the bloodstained clothes, i.e., ‘lungi’ (M.O.5) and shirt (M.O.7) from the accused in the presence of the P.W.4. Ex.P-5 is the panchanama for the attachment of clothes. It is stated by the prosecution that when the accused was in the police custody, he expressed his willingness to discover the knife (M.O.6). His statement was recorded and the admissible portion of the said statement is marked as Ex.P-13. Then, the accused led the police and the panch witness to his house where the M.O.6-knife was recovered.
9. P.W.10, the C.I. of Police, took further investigation from P.W.9. On 18-6-1997, he forwarded the material objects to the Regional Forensic Science Laboratory, Visakhapatnam. Ex.P-16 is the report of the Forensic Science Laboratory. On 21-6-1997, he examined P.W.5 and recorded his statement. On completion of investigation, P.W.10 filed charge sheet.
10. In order to bring the guilt to the home of the accused, the prosecution led the evidence of P.Ws.1 to 10. Documents produced and proved by them were marked as Exs.P-1 to P-16. The defence produced the document which is marked as Ex.D-1. Out of the witnesses examined, P.W.5 did not support the prosecution. He was declared hostile. The plea of the accused is of total denial.
11. In order to prove the fact that the deceased died homicidal death, the prosecution wants to rely upon the evidence of P.W.9, who is the Inspector of Police. On visiting the scene of offence, he conducted inquest over the dead body of the deceased. P.W.4 acted as inquest panchayatdar. Ex.P-1 is the inquest report.
12. After inquest was over, the dead body was sent to P.W.7, who happened to be working as Civil Assistant Surgeon, Government Head Quarters Hospital, Vizianagaram. On receipt of requisition, he conducted the autopsy over the dead body of the deceased and noticed the following external injuries:-
Lacerated injury of 8″ x 3″ x 2 to 3″, from the occipital triangle, on the left side of the neck, extending obliquely downwards and forward, to the medial end of the right clavicle. Depth of the injury in front of the neck is 3″ and at the occipital triangle on the left side is 2″.
13. A lacerated injury of 3″ x 1″ x 1″ extending from a point 1″ medial to the auxiliary fold upto the sternal joint, half inch below the cavity over the right side of the chest.
An abrasion 2″ x 1″ below the chin.
14. On internal examination, he noticed the following injuries:-
Corresponding to external injury No.1. Underlying muscles found cut irregularly. There is fracture of medial end of the right clavicle. There is dislocation of the right sterno clavicular joint. Right innominate left common carotid and left sub clavian arteries are completely severed (cut) 1/2″ away from the clavicle. Trachea and the underlying oesophagus found severed (cut) completely 1/2″ distal cuts ends of the above said arteries. Inter-vertibral disc between the second and third thoracic vertibra fractured and the second thoracic vertibra found dislocated posteriorly.
15. Corresponding to external injury No.2, pleural cavity found open.
16. The medial end of the first rib on the right side was found fractured. There was injury to the pleural cavity on the right side over the upper anterior aspect. Correspondingly, there is lacerated injury of 1 1/2″ x 1/4″ x 1/2″ over the anterior aspect of the upper lobe of the right lung.
17. He issued the post-mortem certificate, which is produced on record as Ex.P-12. According to the opinion of the Doctor, the deceased died because of haemorrhage and shock due to ante mortem injuries to the great vessels between 12 to 18 hours prior to the autopsy.
18. Considering the evidence led by the prosecution on the point of homicidal death, we do hold that the prosecution could prove that the deceased died homicidal death. As stated earlier, the prosecution led the evidence of P.Ws.1 to 10. Out of these witnesses, no one is a direct witness on the point. The case rests upon circumstantial evidence. The prosecution relied upon the following circumstances:- The first circumstance is that the deceased died homicidal death. We have also held that the prosecution could prove that the deceased died homicidal death. The second circumstance is that the accused and the deceased had a quarrel three days prior to the date of the incident. The accused refused to pay the amount borrowed from the deceased. The third circumstance is the information given by the accused, the admissible portion of which is marked by the learned Sessions Judge as Ex.P-13. The last circumstance on which the prosecution relied upon is the discovery and seizure of the knife and clothes of the accused.
19. We proceed to scrutinize the evidence adduced by the prosecution so as to ascertain whether the prosecution could connect the accused with the crime and whether the prosecution could complete the chain of circumstances so as to hold the accused guilty. As stated earlier, we have given the finding that the deceased died homicidal death. As far as the quarrel between the accused and the deceased are concerned, P.Ws.1 and 3, who happen to be the mother and brother of the deceased, have spoken in the Court that there was a dispute between the accused and the deceased regarding borrowing of the amount by the accused from the deceased. Though they have stated in the Court regarding the quarrel three days prior to the incident between the accused and the deceased, but while giving the statement under Section 161 Cr.P.C., they did not speak about the aforesaid incident. It is for the first time in the Court they have stated that there was a dispute between the accused and deceased on the point of repayment of money. Even if this circumstance is accepted that there was a quarrel between the accused and the deceased, it cannot lead to an inference that the accused might have committed the murder of the deceased, with the background that the accused and deceased were friends earlier. The other circumstance which the prosecution wants to rely upon is the confession made by the accused himself by going to the police station and giving report to P.W.8, the Head Constable. The learned Sessions Judge appears to have marked the admissible portion as Ex.P-13. The learned Sessions Judge relied on the following portion:
” I immediately went to house, brought knife, came back, gave two cuts with the said knife on the neck of Appalanaidu, who was sleeping, and killed him. I washed the knife and kept in my house. ”
20. But in our considered view, the said portion marked by the learned Sessions Judge itself is totally inadmissible. At the most it can be said that the portion that ‘the accused kept the knife in the house’ could have been admissible if the police officer would have gone to the house of the accused immediately after getting information and if the accused would have discovered that knife. But, such a step was not taken by the police officer. Therefore, in our opinion, whatever portion which was held to be admissible by the learned Judge is totally inadmissible and is hit by Section 25 of the Indian Evidence Act. Therefore, we hold that the circumstance which the learned Sessions Judge relied upon is inadmissible in evidence and thus is not proved. The last set of circumstance that when the accused was in police custody, he alleged to have expressed his willingness before P.W.9 to show the knife which was hidden by him in his house. That portion of the evidence of P.W.9 is also inadmissible because of the fact that P.W.9 in his evidence has stated that before going to Police Station, he learnt about the knife which was kept by the accused in his house. Inspite of this position, the Inspector of Police (P.W.9) did not go to the house of the accused and did not seize the knife. He was waiting for the accused once again to make a statement and discover the knife. Therefore, the story put forward by the prosecution on the discovery of knife is held to be totally concocted.
21. It appears from the record that on the arrest of the accused, the blood stained clothes were seized on the person of the deceased but the blood group of those blood stains could not be detected, as per the report of the Forensic Science Laboratory. This is the only evidence which the prosecution could bring on record. We are of the considered view that the learned Sessions Judge was totally wrong in his approach in convicting the accused-appellant.
22. Therefore, we allow the criminal appeal and set aside the order of conviction and sentence recorded against the appellant-accused. We further direct that the accused-appellant be set at liberty forthwith if not required in any other case.
