Andhra Pradesh High Court - Amravati
Patan Rowf Khan vs The State Of A.P., Rep. By The P.P., H.C., ... on 18 May, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy, B Krishna Mohan
1
MSM,J & BKM,J
Crl.A.No.1059
of 2014
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
AND
HON'BLE SRI JUSTICE B.KRISHNA MOHAN
CRIMINAL APPEAL No.1059 of 2014
ORDER:(Per Hon'ble Sri Justice M.Satyanarayana Murthy) One Patan Rowf Khan, father of the deceased preferred this appeal under Section 372 of the Criminal Procedure Code, 1973, (for short "Cr.P.C) claiming to be victim being the father of deceased Patan Nazeer Khan.
2. The accused/respondents 2 to 4 herein allegedly committed murder of the son of appellant while he was in a drunken state, they were tried by the Court, found not guilty, accordingly acquitted under Section 235(1) of Cr.P.C for various charges.
3. The prosecution case in nutshell is that on 07.04.2010, Patan Nazeer Khan, son of the appellant informed his maistry (L.W.2) Katragadda Srinivasa Rao (not examined) that he will not attend duty on that day as his friend P.W.4 (Konda Durga Rao @ Durga) and A-2, who is brother of A-1 were arriving at Addanki from their native place. On that day P.W.4 Konda Durga Rao @ Durga and A-2 came to Addanki from Guntur and joined with Patan Nazeer Khan, A1 and A-3. L.W.2 Katragadda Srinivasa Rao paid an amount of Rs.1,000/- to A-1. Out of it, Patan Nazeer Khan had given Rs.500/- to A-2. Patan Nazeer Khan, A-1 to A-3 and L.W.6 2 MSM,J & BKM,J Crl.A.No.1059 of 2014 Katragadda Srikanth, son of L.W.2 Katragadda Srinivsa Rao, had liquor and quarreled with each other. L.W.2 Katragadda Srinivasa Rao, on coming to know about the altercation, through his son L.W.6 Katragadda Srikanth, went there, chastised them and sent away his son to his house P.W.4 Konda Durga Rao @ Durga and others also chastised Patan Nazeer Khan for his behavior. Then, he quarreled with his neighbor P.W.11 Thanam Ashok Kumar @ Ashok. While the altercation was going on, Patan Nazeer Khan abused A-2, his mother and sister in drunken state. As a result, A-2 grew wild and bet Patan Nazeer Khan with the assistance of A-1 and A-3 with brick pieces (M.O.1 and M.O.2) on his head and also tied a belt (M.O.3) around the neck of Patan Nazeer Khan, pulled it tightly, which resulted in death of Patan Nazeer Khan, will herein after be referred as 'deceased'.
4. During the night P.W.3 Pullugu Subba Rao and P.W.11 Thanam Ashok Kumar @ Ashok, who are neighours of the accused, heard noise from inside the room of the deceased, A-1 and A-3. On 08.04.2010 at about 7.00 a.m, A-2 approached P.W.5 Putchakayala Nageswara Rao, who is a resident of Guntur, confessed about the commission of offence, requested him to find out the condition of the deceased by contacting L.W.2 Katragadda Srinivasa Rao, over phone. Accordingly, P.W.5 Putchakayala Nageswara Rao contacted L.W.2 Katragadda Srinivasa Rao, who in turn went 3 MSM,J & BKM,J Crl.A.No.1059 of 2014 to the scene of offence by then P.W.2 Shaik Abul Salam was also present there. Both of them went inside the house by opening the door, noticed the dead body of the deceased in a pool of blood. L.W.2 Katragadda Srinivasa Rao informed the same to P.W.5 Putchakayala Nageswara Rao. On 08.04.2010 at about 7.30 A.M, P.W.2 Shaik Abdul Salam informed the same to P.W.1 Patan Masthan Khan over phone. Immediately he rushed to the scene of offence along with his relatives found the body of the deceased in pool of blood, went to the police station, lodged a report, marked as Ex.P.1 and the same was registered as a case in Crime No.49 of 2010 for the offence punishable under Section 302 r/w 34 I.P.C. and issued F.I.R marked as Ex.P2 and copies sent to the higher officers. P.W.9 Md.Moin took up investigation and during investigation, he observed the scene of offence in the presence of L.W.13 Gorrepati Venkata Siva Ramarao, V.R.O, Addanki-2 (not examined) and P.W.7 Darisi Maruthi Subrahmanyam, V.R.O, Addanki-3, prepared Ex.P21 observation report of scene of offence, seized M.O.6 blood stained cement flooring piece, M.O.7 controlled Cement flooring piece, M.Os.1 and 2 Brick Pieces, M.O.3 Belt and M.O.8 Belt buckle. He also prepared rough sketch of the scene of offence, marked as Ex.P.28 and got positive and negative photographs, which are marked as Ex.P.3 to Ex.P.20 through P.W.6 Gali Venkata Rama Krishna, a private photographer. P.W.9 Md.Moin, Sub Inspector of Police held inquest on the dead body of the 4 MSM,J & BKM,J Crl.A.No.1059 of 2014 deceased in the presence of mediators L.W.13 Gorrepati Venkata Ramarao (not examined) and P.W.7 Darisi Maruthi Subrahmanyam. Ex.P22 is the inquest panchanama. P.W.9 seized M.O.4 blood stained shirt, M.O.5- blood stained pant of the deceased and M.O.9 Anklet tied with black rope. Thereafter, P.W.9 forwarded the dead body for post mortem examination through L.W.16 Shaik Chand Basha, P.C.397 of Addanki Police Station. P.W.8 Dr.B.Vijaya Bhaskar, Civil Assistant Surgeon, Community Health Centre, Adddanki, held autopsy over the dead body of Pathan Nazeer Khan and issued preliminary post mortem certificate marked as Ex.P.24, while reserving his opinion pending report of hyoid bone of deceased and sent the same to the Department of Forensic Medicines and Toxicology, Guntur Medical College, where Dr.C.G.V.Daniel, Assistant Professor of Department of Forensic medicines and Toxicology, Guntur Medical College, examined and gave his opinion, marked as Ex.P.25, opining that there is no anti-mortem or post mortem fracture of examined Hyoid bone and it is intact. Basing on Ex.P.25, P.W.8 issued final report marked as Ex.P26 opining that the deceased appeared to have died of shock and Asphyxia due to strangulation and the time of death was 10 to 12 prior to postmortem examination.
5. On 12.04.2010 K.Ramesh Babu, the then Inspector of Police returned from medical leave, took up investigation, 5 MSM,J & BKM,J Crl.A.No.1059 of 2014 verified investigation done by P.W.9 S.I of Police and found that it was in proper lines.
6. On 13.04.2010 on information, P.W.10 went to Salivahana Satram, Addanki at 5.00 P.M along with mediators L.W.15 Marella Venkata Sriramulu and P.W.7, arrested A-1 to A-3 and on interrogation, A-2 confessed that he committed the offence with the assistance of A-1 and A-3 whereas A-1 and A-3 also confessed about the commission of offence and the same is incorporated in Ex.P.23 Panchanama. M.Os.1 to 9 were sent to RFSL, Guntur, who in turn examined M.Os.1, 3 to 6, 8 & 9 and issued Ex.P29 RFSL report.
7. After completion of investigation, prima facie concluded that the evidence collected during investigation is suffice that the accused committed an offence punishable under Section 302 I.P.C, filed a charge sheet before the Additional Judicial Magistrate of First Class, Addanki, which is registered as P.R.C.No.20 of 2010 before the Judicial Magistrate. As the offence punishable under Section 302 I.P.C. is exclusively triable by the Court of Sessions and after following necessary procedure prescribed under Section 207 Cr.P.C, committed the case to the Sessions division of Prakasam District at Ongole exercising power under Section 209 Cr.P.C. On receipt of record on committal, learned Principal District and Sessions Judge registered the same as sessions case and 6 MSM,J & BKM,J Crl.A.No.1059 of 2014 made over to the Court of learned I Additional District and Sessions Judge, Prakasam District, Ongole to try and dispose of the same in accordance with law.
8. Learned I Additional District and Sessions Judge, after securing the accused and upon hearing Public Prosecutor and counsel for accused, framed charges for the offence punishable under Section 302 I.P.C against A-2 and a charge under Section 302 r/w 34 against A-1 and A-3, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.
9. During trial on behalf of prosecution, P.W.1 to P.W.11 were examined, marked Ex.P1 to P.30 and M.O.s.1 to 9. After closure of the prosecution evidence, accused were examined under Section 313 Cr.P.C explaining the incriminating material that appeared against them in the evidence of prosecution witnesses. They denied the same and reported no evidence.
10. Upon hearing the arguments of both the counsel, learned Sessions Judge found that the accused are not guilty for the offence with which they are changed since the prosecution miserably failed to establish the guilt of the accused either by direct or circumstantial evidence and accordingly acquitted all the accused. 7
MSM,J & BKM,J Crl.A.No.1059 of 2014
11. The appellant being the father of the deceased who is a victim, filed this appeal raising several contentions. The main ground urged by the appellant is that the evidence of P.W.8 Doctor is sufficient to conclude that the death of his son is homicide but it was not considered in proper perspective. It is also contended that the prosecution did not examine material witnesses viz., L.W.2 Katragadda Srinivasa Rao and L.W.6 Katragadda Srikanth, who are competent to speak about the involvement of the accused in grave crime of murder, therefore, non- examination of L.W.2 and 6 is a lapse committed by the prosecution before the trial Court and thereby committed a grave error. It is further contended that since the prosecuting officer has not conducted trial properly, the Court at best may order for retrial to examine the material witnesses L.W.2 and L.W.6 to decide the complicity of the accused for the grave charge under Section 302 I.P.C and requested to set aside the calendar and Judgment and order of acquittal while ordering retrial.
12. During hearing, Smt.S.Siva Kumari, legal Aid Counsel contended that the reason for acquittal is non examination of L.W.2 Katragadda Srinivasa Rao and L.W.6 Katragadda Srikanth and if the prosecution examined those two witnesses on its behalf their evidence is sufficient to connect the accused with the offence punishable under Section 302 I.P.C for causing death of Patan Nazeer Khan. 8
MSM,J & BKM,J Crl.A.No.1059 of 2014 She strenuously contended that illegality committed by the prosecuting officer before the trial Court is prejudicial to the interest of the victim and that the Prosecuting Officer did not conduct the case properly thereby led to acquittal of the accused and requested to remand the matter to the Sessions Court or order for retrial, if remand is not permissible.
13. Public Prosecutor for the State also disputed about the acquittal of accused under the impugned calendar and judgment of the trial Court in the same lines of the learned Legal Aid Counsel.
14. Considering their contentions and perusing material available on record, the point that arise for consideration is--
"Whether the evidence of P.Ws.1 to 4 directly point out the complicity of the accused/respondents 2 to 4 herein for the offence punishable under Section 302 and 302 r/w 34 I.P.C even in the absence of examination of L.W.2 Katragadda Srinivasa Rao and L.W.6 Katragadda Srikanth. If so, whether acquittal of accused for the offence punishable under Section 302 and 302 r/w 34 I.P.C is liable to be set aside or in the alternative whether this court can order for retrial at this stage?
POINT:
15. The prosecution case is totally based on circumstantial evidence and no direct witness was examined by the investigating agency during investigation.
16. When the case is based on circumstantial evidence, burden of proof is always on the prosecution to prove all the circumstances from which conclusion of guilt is to be drawn 9 MSM,J & BKM,J Crl.A.No.1059 of 2014 must be fully established and the facts so established must be consistent with hypothesis of guilt of accused and any circumstance consistent with innocence of accused, he is entitled to benefit of doubt. (vide Kishore Chand v. State of Himachal Pradesh1)
17. The Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, circumstantial evidence held that, in a case of murder when the prosecution relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence laid down by Supreme Court (vide Syed Hakkim & another v. State2) Similarly, in G.Parshwanath v. State of Karnataka3, the Supreme Court is of the view, when the case of the prosecution is based on proof of circumstantial evidence on the basis of which conclusion of guilt is drawn must be fully established fully, individual chain of circumstances must be complete pointing out the guilt of accused, all proved facts must lead to inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances and regard must be 1 AIR 1990 S.C. page 2140 2 2009 Cr.L.J. page 1891 3 AIR 2010 S.C. page 2914 10 MSM,J & BKM,J Crl.A.No.1059 of 2014 had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused and it does not mean that each and every hypothesis suggested by the accused must be excluded by proved facts. In Rukia Begum Vs. State of Karnata with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka4; Jagroop Singh Vs. State of Punjab, Inspector of Police, Tamil Nadu Vs. Balaprasanna5 Shaik Khadar Basha v. State of Andhra Pradesh6, the same principle was reiterated.
The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra7, wherein the Supreme Court held as follows:
"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.
In view of the settled principle of law, the prosecution made a sincere attempt to prove each and every circumstance, pointing out the guilt of the accused that the offence punishable under Section 302 and 302 r/w 34 I.P.C by drawing inference from the proved facts and 4 AIR 2011 SC page 1585 5 2009(1) ALD (Crl.) page 113 6 2009(1) ALD (Crl.) page 859 (AP) 7 (2006) 10 SCC 681 11 MSM,J & BKM,J Crl.A.No.1059 of 2014 circumstances which are consistent only with hypothesis of guilt of accused before the Trial Court and inconsistent with innocence.
18. Keeping in mind, the law laid down by the Apex Court in perspective pronouncements, we would like to decide the complicity of the accused. The scope of inference of the appellate Court in an appeal against the acquittal is not limited. This Court convert the acquittal into conviction, on re-appreciation of entire evidence and if the Court found that the evidence on record is sufficient to record the conviction of the accused for the grave offence punishable under Section 302 and 302 r/w 34 I.P.C, the Court may sentence the accused finding them guilty for any offence.
19. Before deciding the points framed by this Court for determination, it is apposite to advert to the law laid down by the Apex Court as to the scope of jurisdiction of the appellate court in an appeal against acquittal recorded by the Sessions Court. In Chandrappa v. State of Karnataka8 the Apex Court laid down five guidelines for deciding an appeal against acquittal. They are as follows:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an 8 (2007) 4 SCC 415 12 MSM,J & BKM,J Crl.A.No.1059 of 2014 appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
20. In Dwaraka Dass & Ors v. State of Haryana9 the Apex Court in Para No.2 held as follows:
While there cannot be any denial of the factum that the power and authority to appraise the evidence in an appeal, either against acquittal or conviction stands out to be very comprehensive and wide, but if two views are reasonably possible, on the state of evidence: one supporting the acquittal and the other indicating conviction, then and in that event, the High 9 (2003) 1 SCC 204 13 MSM,J & BKM,J Crl.A.No.1059 of 2014 Court would not be justified in interfering with an order of acquittal, merely because it feels that it, sitting as a trial court, would have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice."
21. In Bihari Nath Goswami v. Shiv Kumar Singh & Ors10, the Apex Court in para No.8 held that:
There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent.
Those principles were reiterated in the later judgment of Apex Court in Nallabothu Ramu alias Seetharamaiah and 10 (2004) 9 SCC 186 14 MSM,J & BKM,J Crl.A.No.1059 of 2014 others v. State of Andhra Pradesh11. Keeping the above principles in mind, we wish to approach the present case and decide the points framed for determination as mentioned above.
22. The prosecution case is based on the evidence of P.Ws.1 to 4, mainly, all the four witnesses are circumstantial witnesses. P.W.1 is resident of Kobalpet 5th lane, Guntur, he is a motor cycle mechanic, who is brother of deceased, whereas the incident took place at Addanki, which is far of place to the place where P.W.1 is residing. He testified about the connection between the witnesses, accused and deceased. According to his testimony, his brother was residing in a room in Ramnagar, Addanki along with A-1 to A-3 who are the common tenants in one room. On 08.04.2010 or 09.04.2010 at about 7.30 A.M P.W.2 Shaik Abdul Salam called him over cell phone informed that Pathan Nazeer Khan died and his body was in pool of blood, While informing that he was killed by A-1 to A-3 in drunken state, he also spoke about his visit to the scene of offence finding various items M.Os.1 to 5 and lodging a report with the police at about 9.30 A.M or 10.00 A.M on the same day vide Ex.P1. In the cross examination P.W.1 admitted that his son came to his house on 07.04.2010 and picked up a quarrel with him. A suggestion was put to P.W.1 that Ex.P1 was prepared at the dictation of police but the suggestion was denied. As such, testimony of P.W.1 is useful to prove the death of his brother, 11 (2014) 12 SCC 261 15 MSM,J & BKM,J Crl.A.No.1059 of 2014 receipt of phone call from P.W.2 Shaik Abdul Salam. Homicidal death of the son of appellant is not in dispute and the same is substantiated by the medical evidence of P.W.8 Dr.B.Vijaya Bhaskar and Ex.P3 to P.20, P.22, P.24 and P.25. Hence, the death of the son of the appellant is homicidal.
23. When the Court accepted the death of Pathan Nazeer Khan who is son of appellant is homicide, the next question that arose for consideration is as to who caused the death of Patan Nazeer Khan, son of the appellant herein. At best, the evidence of P.W.1 is sufficient to prove the homicidal death. However, his testimony with regard to the information he received from P.W.2 that A.1 to A.3 killed his son is only hearsay evidence. P.W.2Shaik Abdul Salam, who allegedly received information about the death of son of the appellant, if true to establish the same. L.W.2 Katragadda Srinivasa rao, was not examined as witness is an important witness. His testimony regarding the incident that took place one day prior to the death is not much relevant to decide the complicity of the accused/respondents herein. According to him, on the date of death of the son of appellant at 11.30 a.m P.W.4 Pullugu Subbarao went to the room of the deceased to attend the work on the same day about 8.45 P.M. When P.W.2 was going to cinema, A.1 to A.3 and deceased L.W.6 Katragadda Srikanth and P.W.4 Konda Durga Rao @ Durga came in opposite direction to him i.e., cinema hall, in which 16 MSM,J & BKM,J Crl.A.No.1059 of 2014 "Varudu" movie was being exhibited. All of them were in drunken state. Without disturbing them, he went to cinema hall and they went to their room, they were having food packets. One hour thereafter, wife of P.W.4 telephoned to him stating that without giving money, he went to Addanki. On the next day morning, he went to the room at about 7.30 A.M expecting that Durga will be there. He found the room was bolted outside and one pair chappals were found outside. Then he thought that he might have gone outside. He came to the road, L.W.2 Katragadda Srinivasa Rao came in opposite direction, then P.W.2 enquired about the accused and immediately he told that during night, there was a quarrel and Pathan Nazeer Khan sustained injuries and the accused bolted the room from outside and went away. Immediately he took L.W.2 to the room. L.W.2 opened the doors and they found the deceased is lying the pool of blood. Therefore, the evidence of P.W.2 is based on information received by him from L.W.2-Katragadda Srinivasa Rao. At best the evidence of P.W.2 is only hear say evidence. L.W.2 Katragadda Srinivasarao if examined supporting the evidence of P.W.2, the case of the prosecution can be believed as to who perpetrated murder of son of the appellant. The evidence of P.W.2 is not sufficient to record conviction of the accused for the offence punishable under Section 302 I.P.C in the absence of evidence of L.W.2 Katragadda Srinivasa Rao through him P.W.2 received information. At best L.W.2- 17 MSM,J & BKM,J Crl.A.No.1059 of 2014 Katragadda Srinivasa Rao and his son L.W.6-Katragadda Srikanth are the competent witnesses to speak about the cause and how the death was caused and the person who caused death. None of them were examined as witnesses before the trial Court.
24. The evidence of other witnesses P.W.3 Pullugu Subbarao and P.W.4Konda Durga Rao @ Durga is of no avail to record conviction of the accused for the offence punishable under Section 302 I.P.C. Mere so in examination-in-chief, he (P.W.3) specifically stated that A.1 to A.3 and deceased and L.W.6 son of L.W.2 were present there, by the time he went to the room, they were found in drunken state. So, the theory of last seen together alive is invented by the prosecution to connect the accused with the offence. The offence allegedly took place during night and as per the medical evidence of P.W.8, the time of death was 10 to 12 hours prior to post mortem examination. Post mortem examination was conducted on 08.04.2010 between 3.00 P.M to 4.30 P.M. But the accused 1 to 3 and deceased were found in the room in a drunken state, when P.W.4 went to the room of the accused and deceased. According to the evidence of P.W.2, P.W.4 Konda Durga rao @ Durga came to the room at 11.30 A.M i.e., on 07.04.2010. Even the testimony of P.W.4 also discloses that he returned to Addanki on 07.04.2010 in the afternoon. The accused and the deceased were found in the 18 MSM,J & BKM,J Crl.A.No.1059 of 2014 room in a drunken state when P.W.4 visited the room and death allegedly took place at about 3.00 A.M or 4.30 A.M on the next day i.e., on 08.04.2010.
25. The theory of deceased last seen together alive with the company of the accused cannot be accepted since, the deceased was not seen lastly alive soon before the death of deceased Patan Nazeer Khan. The proximity of time is an important factor to accept such theory. Even assuming for a moment that the evidence of P.Ws.2 and 4 is true, P.W.4 went to the room at about 11.30 a.m on 07.04.2010 or atleast in the afternoon and there is a long gap, approximately 12 hours between the approximate time of death and the deceased was in the company of the accused alive, i.e., last seen together alive. In view of the long gap, the theory of last seen together cannot be accepted unless the prosecution was able to establish that there was no possibility to third person to enter into room within the gap of approximately 12 hours. In the absence of any material, the Court cannot rule out the possibility of any person entering into the room. Therefore, theory of deceased last seen in the company of the accused would not form the basis for recording conviction of the accused.
26. The testimony of other witnesses examined and the medical evidence is not much relevant since the main witnesses L.W.2 Katragadda Srinivasa Rao and L.W.6 19 MSM,J & BKM,J Crl.A.No.1059 of 2014 Katragadda Srikanth, were not examined though the case of prosecution is based on circumstantial evidence, on account of non examination of the above two persons disconnected the links in the chain of circumstances, consequently the prosecution failed to complete the chain of circumstances, to draw all inference that the accused is the person who was found in the company of the deceased alive lastly and such disconnection of links in the chain demolished the case of prosecution in total, thereby the trial Court rightly disbelieved the case of the prosecution, as the prosecution miserably failed to prove the circumstances linking one another, so as to complete the chain of circumstances, to draw an inference that from the proved circumstances that the accused perpetrated the murder of deceased Patan Nazeer Khan. Therefore, we find no error warranting interference of this Court in calendar and judgment of the trial Court in S.C.No.131 of 2011, dated 21.08.2011.
27. The main contention of learned counsel for the appellant is that when the prosecution was not conducted fairly, the Court may exercise power to order retrial. No doubt such power can be exercised by this Court only in exceptional circumstances, where there is a grave irregularity in conducting trial. But here the witnesses L.W.2 Katragadda Srinivasa Rao and L.W.6 Katragadda Srikanth were not examined and their evidence is necessary to connect the links 20 MSM,J & BKM,J Crl.A.No.1059 of 2014 in the chain of circumstances to draw such inference as to the complicity of the accused. But the case of prosecution was not that those persons directly witnessed the incident of murder of Patan Nazeer Khan, by A1 to A3. However, the case of prosecution is that there was an alteration between A1 to A3, L.W.6 Katragadda Srikanth son of L.W.2 Katragadda Srinivasa Rao and the deceased. Therefore, examination of L.W.2-K.Srikanth, L.W.6-K.Srinivasa Rao at best may helpful to prove the altercation that took place in the room of deceased during day time when P.W.4 visited the room of the accused and deceased. Similarly, the testimony of L.W.2 K.Srinivasa Rao also threw light on altercation that took place among them. Either L.W.2 Katragadda Srinivasa Rao or L.W.6 Katragadda Srikanth are the direct witnesses to the incident or at least circumstantial witnesses to complete the links in the chain of circumstances. Therefore, even if they are examined as witnesses before the Court, it is not sufficient to draw an inference from the proved circumstances that the accused alone are the persons who perpetrated the murder of the Patan Nazeer Khan. Hence, it is difficult to exercise the power to order retrial in the present set of circumstances. Consequently, we are unable to accede to the request of learned Legal Aid Counsel for the appellant to order retrial, in view of the scope in the appeal challenging the acquittal under Section 372 Cr.P.C.
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28. In view of the foregoing discussion, we find no ground to set aside the calendar and judgment of trial Court acquitting the accused for the offence punishable under Section 302 and 302 r/w 34 I.P.C finding them not guilty for the offence punishable under Section 302 and 302 r/w 34 I.P.C. to order retrial and consequently the appeal is liable to be dismissed.
29. In the result, appeal is dismissed, confirming the acquittal of the accused under the impugned calendar and judgment in S.C.NO.131 of 2011, dated 21.08.2011 passed by the I Additional District and Sessions Judge, Prakasam District at Ongole.
Consequently, miscellaneous applications pending if any, shall stand closed.
__________________________________________ JUSTICE M.SATYANARAYANA MURTHY ________________________________ JUSTICE B.KRISHNA MOHAN Date: 18.05.2020 RJS.
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MSM,J & BKM,J Crl.A.No.1059 of 2014 HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY AND HON'BLE SRI JUSTICE B.KRISHNA MOHAN CRIMINAL APPEAL No.1059 of 2014 18th day of MAY, 2020 RJS 23 MSM,J & BKM,J Crl.A.No.1059 of 2014