KARANAM BALARAMAKRISHNA MURTHY Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) THE appellants in Criminal Appeal Nos. 258 and 259 and the respondent in State Appeal No. 379 of 1994 were jointly tried for various offences including those under Section 302 and 201 I. P. C. and under Section 3 of the E. S. Act in S. C. No. 78 of 1990 by the Sessions Court, Prakasam Division, Ongole. The appellants in the first two appeals were found guilty under Section 302, read with Section 34, and 201 I. P. C. and also under Section 3 of the E. S. Act and accordingly convicted and sentenced to life imprisonment for the first offence, further sentenced to 3 years R. I. for the second offence under Section 201 I. P. C. and to 5 years R. I. for the last offence under Section 3 of the E. S. Act. The respondent in the State Appeal was acquitted of all the charges against him. Being aggrieved, the convicted persons have filed the first two appeals, whereas the State has filed the third appeal against the order of acquittal in favour of the respondent in that appeal.

(2.) IT was alleged that on 30-6-1987 at about 8-30 p. m. at Jampanivari Cheruvu, all the five accused persons had formed an unlawful assembly and in furtherance of the common object of that assembly, 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 denied their guilt, but 4 out of 5 were found guilty and convicted and sentenced as aforesaid. The remaining one was acquitted. Being aggrieved, the convicted persons have filed the first two appeals, whereas the State has filed the third appeal against the order of acquittal recorded in favour of one of the accused persons.

(3.) WITHOUT going into any further details, we may notice certain peculiar features of the case. It was the specific case of the prosecution that Venkata Subbaiah was murdered on 30-6-1987atabout8-30p. m. , but there was no direct evidence to prove that he died on 30-6-1987, muchless a homicidal death, the dead body was not recovered. The F. I. R. (Ex. P. 1) lodged on the next day at about 8-15 a. m. by one Bollenpalli Nagendram (P. W. 1) in a nearby Police Station without any reasonable explanation for the delay also did not give any indication about the death or nature of death of Venkata Subbaiah on the said date, time or place of occurrence, though he claimed himself to be an eye-witness. The attempt that was made by the prosecution was to show that Venkata Subbaiah was forcibly taken away in a jeep and, thereafter, murdered by the accused persons. In order to prove that Venkata Subbaiah was no longer alive, a further attempt was made to connect the bones and skull of a burnt dead body that were discovered on 20-7-1987 with those of Venkata Subbaiah. As would appear from paragraph or clause V of Inquest Report (Ex. P-23), only bones and skull were discovered by the police on 20-7-1987without any marks for identification. Even the learned Sessions Judge recorded a finding in paragraph (XIV) of his judgment that, "it is-crystal clear, as discussed above, that the body of Venkata Subbaiah, whether he was unconscious or dead was lifted to the jeep of the accused and was taken away on 30-6-1987 night at about 8-30 p. m. from the scene of offence at Jamapanavari Cheruvu. Till now the whereabouts of the said Venkata Subbaiah are not known. " We fail to understand, how after recording such a finding, the learned Sessions Judge could have come to a conclusion that the appellants in the first two appeals were guilty of committing murder of Venkata Subbaiah: It does not appear necessary to remind that no offence under Section 302 I. P. C. can be made out without proving that the victim under consideration Was dead and that the death was homicidal in nature. In the present case, the prosecution has utterly failed to prove either of them and, therefore, all the appellants in the first two appeals are entitled to acquittal of the charge under Section 302 I. P. C. For similar reasons, their conviction under Section 201 I. P. C. also deserves to be set aside. The argument that the accused persons and the alleged victim were last seen together and, therefore, in the absence of reasonable explanation about the whereabouts of the victim from the accused, they are liable for the said offence, deserves to be rejected. Doubts, howsoever strong, cannot take the place of legal proof in a criminal trial and on that basis or on the basis of surmises, no person, facing a charge of murder can be convicted. Accordingly we have no manner of doubt that in the present case, all the appellants in the first two appeals re entitled to benefit of doubt and consequent acquittal, as the prosecution has failed to prove that Venkata Subbaiah is dead, muchless the nature of death, natural or homicidal.