The prosecution must prove the death of the victim and the homicidal nature of the death to establish an offence under Section 302 of the Indian Penal Code.

ORDER :

Leave granted

Upon however such a grant of leave in regard to special leave petition (criminal) Nos. 3578-3580 of 1994, and since criminal appeal Nos. 802-804 of 1994 arise out of a common occurrence are being dealt with by one common judgment.

2. In criminal appeal Nos. 802-804 of 1994, the state is in appeal against the judgment of the High Court directing an order of acquittal. The respondents herein being accused Nos. 1, 2, 4 and 5, along with accused No. 3, who happened to have been acquitted by the learned sessions judge himself, moved the High Court in appeal against the judgment of the learned sessions judge being tried under Sections 302 and 201 of the Indian Penal Code and under Section 3 of. The Explosive Substances Act.

3. The learned Sessions judge, as noticed above, found the above noted persons guilty of offences under Sections 302 and 201 of the Indian Penal Code as also under Section 3 of The Explosive Substances Act and sentenced them to undergo life imprisonment for the first offence and further orders of imprisonment for various periods though the sentences were directed to run concurrently.

4. Being aggrieved, the above noted accused persons preferred the appeal before the High Court.

5. Before proceeding further in the matter, a brief factual aspect as found in the prosecution case may be adverted to at this juncture. On 30.6.1987 at about 8.30 p.m. at Jampanivari Cheruvu all the five accused persons had formed an unlawful assembly in furtherance of the common object, they had murdered one Nallapaneni Venkata Subbaiah by exploding country made bombs. The dead body was said to have been taken away and thrown somewhere by them. All the five accused persons had denied their guilt, but four out of five were found guilty and convicted and sentenced as aforesaid. The remaining one was acquitted.

6. Peculiarity is the hallmark in the matter under consideration as regards the prosecution case, since beyond a certain prosecution case, since beyond a certain point there is no evidence available on record excepting the opinion evidence of a medical practitioner. Significantly, the body of Nallapaneni Venkata Subbaiah was not recovered but what was recovered were certain bones together with the remanent of a skull. The prosecution case obviously hinges strictly on the opinion evidence of one Dr. K. Krishna Reddy (PW20) wherein it has been stated as below :

"My opinion regarding this case is (1) The bones belonging to human being. (2) From the evidences present on the skull and mandible and 1st convical vertebrae it can be said that the bones belong to a male individual. (3) The evidences present on the spinal column, skull and mandible it is possible to say that the age of the individual would be about 40-45 years, but the fact cannot be confinmed authentically. (4) The stature of the individual cannot be given. (5) Since there is no duplication of bones, it cannot be disagreed that they belong to single individual, but the same fact cannot be confirmed as there were no particular surfaces to the bones. (6) There were no signs of ante-mortem injuries or haemorrhage. (7) There were no signs of ante-mortem or post-mortem burns. (8) The identity of the individual can be established from the absence of right 1st molar teeth in the lower jaw as it had fallen off years back and its cavity was filled by calcification completely. The left three molars of the lower jaw might have fallen off long back at least a minimum of 2 to 3 years. (9) Time since death is about 2 to 3 months. (10) The cause of death cannot be given as there were no positive evidence.

Exhibit P. 15 is the certificate given by me. The contents mentioned in the report exhibit P. 45 are correct. After reading the report, I can identify the skeletal remains which 1 examine, if they are shown to me. M.Os. 1, 2, 8 and 10 are the skeletal remains that were sent to me for post mortem examination. (Exhibit P. 45 marked because the accused has no objection in marking