JUDGMENT K. Jayachandra Reddy, J.
1. The three appellant herein (original accused Nos. 1 to 3) have been convicted by the trial Court under Sections 302/34, 379/34 and 201 I.P.C. and sentenced to life imprisonment, two years and five years R.I. respectively. The appeal preferred by them has been dismissed by the High Court. Hence the present appeal. The prosecution case is as follows:
2. The deceased Mylapalli Venkataramana was working as a taxi driver of the Car AAV 6885 belonging to P.W.6. The deceased had a valid driving licence, M.O. 13. A-1, a resident of Ankapalli, was in occupation of Room No. 11 in Seaking lodge in Visakhapatnam. A-2, whose mother was living with her second husband at Allahabad and having incurred the displeasure of her maternal grand-father, (P.W.19) came and occupied Room No. 17 in the same Lodge. A-3 was an associate of A-2. All the three accused become close associates. On 27.12.78, P.W.13, the driver of another taxi, received a phone call from the Manager of the Lodge at 2.30 P.M. informing him that the persons occupying Room No. 11 required a taxi. P.W. 13 accordingly went to the Lodge and gave a lift to A-1 to A-3 alongwith a girl to Alankar Theatre. After disembarking at the Theatre, the accused gave a chit to P.W.13 to collect the fare from the Manager of the Lodge. Accordingly P.W.13 collected Rs. 10/- from the Manager. On the same day at about 7 P.M., P.W.4, another taxi driver saw the deceased coming in his taxi towards Jagadamba Junction. A-2 and A-3 stopped the taxi of the deceased and enquired as to what would be the to and from fare to Yellamanchili. The deceased told that it would be Rs. 100/ -. A-2 and A-3 got into the taxi of the deceased and went away. This conversation between the deceased and A-2 and A-3 was heard by P.Ws. 3,4 and 7. On the same day namely 27.12.1978, P.W.8 saw the deceased and his taxi at Jagadama Junction at about 11.30 P.M. On enquiry the deceased told him that he had gone upto Adanampudi, as A-2 and A-3 had forgotten a file and therefore they have returned and that the deceased would have to take the same part on the next day to Yellamanchili. On 28.12.1978 P.W.7 came to Jagdamba Junction with his taxi and saw the deceased and his taxi at the Junction and asked about his having gone to Yellamanchili and the deceased narrated the same which he told to P.W.8. The deceased went to the house of the taxi owner, P.W.6 on 28.12.1978 and gave him the taxi fare of Rs. 50/-. At about 7.30 P.M. on the same day A-3 came there and engaged his taxi and A-2 also came and got into it and thereafter the taxi moved away towards Saraswati Junction. This was observed by P.W.5, another taxi driver. On the same day at about 9 P.M. A-3 went to a wine shop at Ankapalli and purchased half bottle of whisky from P.W.9 and thereafter they went to the hotel run by P.W.10 at Kasimkota by the side of Nookalamma Temple on the G.N.T. Road. The deceased was also known to P.W.10. A-1 to A-3 went to the hotel at about 9.30 P.M. alongwith the deceased. They consumed the liquor and ate chapattis and chicken curry supplied by P.W.10. The deceased also ate chapattis and vegetable curry. A-1 to A-3 remained in the hotel for about 30 minutes. Thereafter A-1 to A-3 and the deceased went towards Yellamanchili side but returned within 15 minutes to the hotel and after pouring water in the radiator they again went away. On the intervening night of 28/29-12-1978 at about 1.30 A.M. A-1 to A-3 took the taxi AAV 6885 to the Petrol Bunk and purchased 20 litres petrol and A-3 paid Rs. 71/- under Ex. P-7 to P.W. 11, a salesman who also observed the movements of A-1 to A-3. After taking petrol A- to A-3 went to Durga Lodge at about 2 A.M. belonging to P.W. 12 and they occupied Room No. 106. The accused asked P.W.I 2, the owner of the Lodge for the assistance of the ward boy forgetting brandy bottle but they were told that the ward boy was sleeping. On that A-1 went to the place where the ward boy was sleeping. On that A01 went to the place where the ward boy was sleeping and woke him up and the ward boy told him that it was 2 A.M. and it was not possible to get brandy. The accused, however insisted and P.W. 14, the ward boy took Rs. 40/- given by A-3 and went to the brandy shop and purchased a bottle. P.W.12 supplied omlettes at the request of A-1 to A-3. At that time, P.W.15, a girl was occupying Room No. 104. The accused asked P.W.12 to supply the girl. P.W. 12 woke up P.W.15 and another girl Annapurna and sent them to Room No. 106 and they spent some time in their room with the accused. At about 4 A.M., A-1 to A-3 left the Lodge with the car. P.W.16 saw the car near his land in the morning of 29.12.1978. Ten minutes later he again saw the car moving and circling and stopping. P.W. 17, a cattle tethered went to that car and came back and told P. W.16 that the inmates were getting down from the car and attempting to go away. P.W.16 went near the car and saw two boys standing at the rear side of the car and one boy getting down from the car from the steering side. They told P.W.16 that they wanted to bring a mechanic. P.W. 16 also saw one portion of a gun covered by a lungi cloth and two bags and one oil tin with the accused. The accused proceeded towards G.N.T.. Road and they stopped a bus at about 7.45 A.M. and boarded the same. After purchasing the tickets from P.W.18, the bus-conductor they got down at Visakhapatnam. On the night of 29.12.1978, Sub Inspector of Police, P.W.26 came to know that one Ambassador Car bearing No. AAV 6885 was abandoned in a field at Sanivada near Agnampudi bushes. Many taxi drivers and cleaners also came to know that the taxi car driven by the deceased was abandoned at the said bushes, P.W.26 kept guard over the vehicle on the night of 29.12.1978 and seized the same next day morning. P.W.I, who owned agricultural land at Ankapalli, saw the dead body of the deceased floating in the nearby well. He got a report Ex. P-1 prepared and gave it to the Village Munsif who in turn in sent the same to Ankapalli Police Station. P.W.27, the Sub Inspector of Police, Ankapalli received the report and registered the crime and proceeded to the well and got the dead body removed from the well and held the inquest. P.W.2, a relation of the deceased, identified the dead body. After inquest, P.W.22, Doctor, conducted the post-mortem on the dead body of the deceased and opined that the deceased died due to asphyxia as a result of drowning. Not being satisfied with this opinion the investigating officer referred the matter to P.W.23, the Professor of Forensic Medicines, who opined that the deceased died due to shock and haemorrhage as a result of injuries to the ribs or after receipt of the injuries he might be lingering with life and death and might have been thrown into a well. An altered F.I.R. was issued. P.W.28, the Circle Inspector, took up the investigation, went to the Lodge and found A-1 to A-3 playing cards and arrested them. On search he found a D.B.B.L. gun, M.O.I, 15 live cartridges, M.O.2, air pistol, air-rifle, two car number plates and other articles. The Circle Inspector also seized the driving licence of the deceased, M.O. 13 from the room. An identification parade was held on 23.1.1979 and P.Ws.3,7,10 and 12 to 18 identified A-2 and A-3. P.Ws. 4 and 8 identified A-2 and A-3 and P.Ws. 9 and 11 identified A-3 only. These witnesses spoke about the various movements. After completion of the investigation, the charge-sheet was laid.
3. When examined under Sectoin 313 Cr. P.C. the accused denied the incriminating circumstances. A-1 stated that Kasimkota Sub Inspector came to his house, arrested him on 2.1.1979 and took him to Ankapalli Pol ice Station where he was detained and was produced before the Magistrate and at the time of the arrest, he was having Rs. 3200/- which were taken away by the S.I. and that he has been falsely implicated. He denied all other incriminating circumstances. He also stated that he was shown to the witnesses before he was identified. A-2 stated that he was innocent and that he was arrested on 2.1.1979 while he was going to his house after closing his shop and that he had no acquaintance either with A-1 or A-3. He also stated that he was shown to the witnesses before identification. A-3 stated that there Sub-Inspectors came in mufti to Sri Rama Andhra Yuvajana Samajam, Bangarumetta and arrested him on 2.1.1979 and took him to II Town Police Station and was kept in lock up and that he saw A-1 and A-2 for the first time on 5.1.1979. He also stated that he was shown to the witnesses before identification.
4. The case rests on circumstantial evidence and the circumstances relied upon by both the courts below are as follows:
1. On 27.12.1978 A-1 to A-3 moved together and A-2 and A-3 hired the car of the deceased on the same evening and also on the following evening. (2) A-3 purchased whisky bottle from P.W.9 at Raja Wines, Ankapalle at 9 P.M. on 23.12.1978. (3) P.W. 10 the hotel owner at Kasimkota observed the presence of A-1 to A-3 and the deceased at about 9.30 or 10 P.M. in his hotel on 28.12.1978. (4) A-1 to A-3 and the taxi AAV 6885 were seen by P.W. 11 at petrol bunk at Yellamanchili at 1.30 P.M. on the intervening night of 28-29-12-1978 (5) A-1 to A-3 remained in Durga Lodge, Yellamanchili on the intervening night of 28-29-12-1978 between 2 and 4 A.M. (6) in the early morning of 29.12.1978 P.Ws. 16 and 17 saw A-1 to A-3 abandoning the taxi AAV 6885 in the fields of P.W.16 at a Sanivada village. (7) A-1 to A-3 boarded the bus APV 7477 at 7.45 A.M. on 29.12.1980 at Aganampudi and got down at Visakhapatnam. (8) the seizure of AAV 6885 and also the removal of the dead body of the deceased on 30.12.1978.
The other items of evidence relied upon are i) the medical evidence of P.Ws. 22 and 23, ii) recovery of M.Os. 1 to 16 from the room of A-1 in Seaking Lodge and iii) identification proceedings.
5. The first circumstance even if accepted would only show that A-2 and A-3 hired the taxi. The second circumstance would indicate that A-3 was seen by P.W.9 at about 9 P.M. on 28.12.1978 at Ankapalli and that A-3 purchased from him a whisky bottle. The High Court has held that the evidence of P.W.9 that he remembered A-3 and identified him, cannot be accepted. The third circumstance, according to the High Court, is very crucial namely that A-1 to A-3 and the deceased were seen in a car at Kasimkota by P.W.10 and that P.W.10's evidence can be accepted without any corroboration. This circumstance would at the most show that A-1 to A-3 were seen travelling in the taxi of the deceased. The fourth circumstance is also to the same effect namely that the taxi went to the petrol pump and purchased petrol. The next circumstance which is in proximity to the above is the visit by A-1 to A-3 to Durga Lodge. The evidence of P.Ws. 12, 14 and 15 would at the most show that A-1 and A-3 stayed in the Lodge. The next circumstance is to the effect that P.Ws. 15 and 17 saw the accused near the car. The seventh circumstance is that P.W.16, the bus-conductor, saw A-1 to A-3 getting into the bus and disembarking at Visakhapatnam. The eighth circumstance is that the car was seen abandoned near the bushes.
6. Taking all the circumstances into consideration together, it would show that the accused were seen moving about in the taxi. Even, according to the prosecution, this is not a case of murder for gain. Though, according to the prosecution, the accused were also in possession of fire-arms but they were not used. There is absolutely no motive to commit the murder of the deceased. It is also not the case of the prosecution that the accused tried to take away the taxi. It is in this context, the cause of death becomes very much relevant. P.W.22, the Doctor, who conducted the autopsy found one abrasion near the left eye, another abrasion on the knee joint and another linear abrasion near the ankle joint. The Doctor opined that the abrasions could have been caused in the process of dragging. He categorically gave an opinion that the deceased died due to asphyxia as a result of drowning. The viscera was sent for chemical analysis and no poison was found. However, P.W. 23, the Professor in Forensic Medicines gave an opinion that the deceased might have died due to shock and haemorrhage. He gave this opinion only on the basis of the data contained in the post-mortem certificate and other documents. P. W.23 deposed during the trial that he received a questionnaire from Sub-Inspector of Police, Ankapalli and that after perusal of the documents namely the post-mortem certificate, the inquest report and the questionnaire he gave the opinion that the deceased appeared to have died due to shock and haemorrhage as a result of the injuries on the ribs and chest or after the receipt of the injuries, he might be lingering with life and death and might have been thrown into a well. He, however, gave the opinion that external injuries Nos. 1 to 3 would not have caused the death. In the cross-examination he admitted that the presence of the blood in abdomen and fracture of ribs 1 to 3 might have caused the death. In Ex. P. 16, the post-mortem certificate, P.W.22 the Doctor noted the internal injuries and they are; fractures of 1st, 2nd and 3rd ribs and the presence of dark colour blood in the abdominal cavity. He also mentioned that hyoid bone was not fractured. In his deposition in the Court he admitted that there was a likelihood of the deceased being beaten by somebody and thrown into the well and he added that he was giving this opinion based on the fracture of the three ribs. In the cross-examination he admitted that he can not say about the nature of injuries that could have been caused by a person who fell in a well in a flat position and that he could not also say that if a person falls flat in the water and the rib cage on the left side comes into contact with the water, he would receive injury or not. He also admitted that the blunt force was necessary to cause the fracture of the ribs. He admitted that he did not find any external injury corresponding to the fracture of the ribs. It can thus be seen that the medical evidence is not conclusive as to the cause of death. P.W. 23 gave his opinion only on the basis of the particulars in the postmortem certificate, the inquest report and the questionnaire whereas the evidence of P.W.22 who actually conducted the post-mortem, which is important, is not very conclusive. In the post-mortem certificate Ex. P. 16 a clear finding is recorded namely that the deceased would have died due to asphyxia as a result of drowning. Therefore the medical evidence by itself does not in any manner advance the prosecution case in fixing the cause of death namely whether it was homicidal. Now coming to the recoveries, even if they are believed, the only incriminating recovery is M.O.13, the driving licence of the deceased. This, even if considered alongwith other circumstances, in our view, is not enough to connect the accused with the crime. In a case of circumstantial evidence aspect of motive assumes considerable importance. As stated above, there is nothing on record to show as to why the accused should resort to commit this crime. Further when the medical evidence is inconclusive we think it will be highly unsafe to sustain the convictions on the basis of circumstantial evidence of this nature.
7. In the result, the convictions and sentences awarded against the appellants are set aside and the appeal is allowed accordingly.