THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE K. SARATH CRIMINAL APPEAL No.862 OF 2017 JUDGMENT: (per Hon’ble Sri Justice K.Surender)

State is aggrieved by the order of acquittal of the respondent/accused Nos.1 to 3 for the offence under Section 302 of IPC.

2. Heard Mr. Vivekananda Reddy, learned Assistant Public Prosecutor for appellant/complainant/State and Mr. Vishwanad, learned counsel appearing on behalf of respondent/accused Nos.1 to 3.

3. Briefly, the case of the prosecution is that on 07.03.2014, PW1 lodged a complaint stating that on 04.03.2014, PW3 informed PW1 that his son (deceased) was taken on a motorbike by the respondents/accused for consuming toddy from a gathering at school for ‘Beerappa Kathi’ programme, however, he did not return home. They made efforts to trace him out, but his cell phone was switched off. PW1 further stated that he had suspicion on respondents/accused that they might have injured the deceased. Three days after deceased was missing, Ex.P1/Complaint was filed on 07.03.2014 by PW1 and the Police registered the case as ‘man missing’. Thereafter, on 09.03.2014, a burnt dead body was found in a putrified state. PW1 and others went and identified the body as that of the deceased. The Section of law was altered to 302 of IPC.

4. The Police conducted scene of offence panchanama at the place where body was found and inquest proceedings were also concluded. Thereafter, the body was sent to post mortem examination. Five days thereafter i.e., 14.03.2014, the accused Nos.1 to 3 were arrested by the Police and produced before Investigating Officer. Confessional statements were recorded in the presence of PW6 and pursuant to the confession, one mobile phone, lungi pieces, motorbike and liquor whisky bottles were recovered at the instance of accused Nos.1 to 3. On the basis of recoveries made, and other evidence during the course of investigation, charge sheet was filed against accused Nos.1 to 3 for the offence under Sections 302, 201 read with 34 of IPC.

5. Learned Sessions Judge having examined the witnesses PWs.1 to 9 and marking Exs.P1 to P13 apart from MOs.1 to 5, found that no case was made out against respondents/accused Nos.1 to 3 for the following reasons:-

i. The seizure of incriminating material could not be proved beyond reasonable doubt since PW6, who is an important independent witness turned hostile to the prosecution case.

ii. Nothing was recovered at the instance of accused No.2, as such his confession under Ex.P5 is inadmissible.

iii. The only evidence apart from PW6 is the evidence of Investigating Officer, who collected whisky bottles and also effected recoveries of other articles. The same cannot be made basis to find the accused guilty.

6. Learned Public Prosecutor would submit that though PW6 turned hostile to the prosecution case, the recovery aspect coupled with the last seen evidence of PW4 can be made basis to convict the accused. However, learned Sessions Judge has not relied on both the circumstances.

7. In cases of acquittal, Appellate Court has to be cautious and cannot interfere with the orders of acquittal, unless and until the findings of the learned trial Judge are not based on record or illegal.

8. The Hon’ble Supreme Court in Pulicherla Nagaraju Alias Nagaraja Reddy v. State of Andhra Pradesh, [(2006) 11 SCC 444] held as follows:

“15. It is now well settled that the power of the High Court in an appeal from acquittal is no different from its power in an appeal from conviction. It can review and consider the entire evidence and come to its own conclusions by either accepting the evidence rejected by the trial court or rejecting the evidence accepted by the trial court. However, if the High Court decided to depart from the conclusions reached by the trial court, it should pay due attention to the grounds on which acquittal was based and state the reasons as to why it finds the conclusions leading to the acquittal, unacceptable. It should also bear in mind th