RAMESH MADHAV BAPAT, J. ( 1 ) THE sole accused in Sessions Case No. 293/99 on the file of the Additional Sessions Judge, Mahabubnagar is the appellant herein. The accused/appellant was tried for an offence punishable under Sections 302, 201 and 404, I. P. C. The learned judge on evidence found that the accused/appellant is guilty of an offence punishable under Section 302, I. P. C. and therefore the accused was convicted and sentenced to be hanged by neck till death. The accused/appellant was further convicted of an offence punishable under Section 201 of the Code and was sentenced to undergo Rigorous Imprisonment for three years. He was also convicted for an offence punishable under Section 404, I. P. C. and was sentenced to suffer rigorous imprisonment for one year. Aggrieved by the aforesaid order of conviction and sentence dt. 9-12-1999 the accused has preferred Criminal Appeal No. 18/2000. The learned Judge has sent the record for confirmation of death sentence under Section 366, Cr. P. C. The confirmation proceedings is registered as R. T. No. 1 of 1999. Since both the matters arise out of S. C. No. 293 of 99, they are disposed of by a common order. ( 2 ) THE substance of the charge against the accused was that on 14-1-1999 in the night in Kuntarangaswamy Temple the accused caused the death of one Nambi Venkatesh by cutting his throat and throwing his dead body in a pond. ( 3 ) THE prosecution case can be briefly narrated as follows : ( 4 ) THE prosecution witnesses are residents of Karne Village. The deceased was a resident of Makthal Village. The deceased was Pujari in Kuntaragaswamy Temple which is at a distance of 1 kilometre from the village. PW2 is the father of the deceased. On 14-01-1999 which was Sankranthi day, the deceased went to the temple and slept in that temple. On the next day morning PW3 and one Dattu Ram went to the temple for darshan of the God but they found bloodstained marks in the temple. They also saw the dead body of the deceased in a pond which was behind the temple. PW3 went and informed PW1 the Village Administrative Officer regarding the finding of the dead body. He also informed PW2, the father of the deceased. They also saw the dead body of the deceased in a pond which was behind the temple. PW3 went and informed PW1 the Village Administrative Officer regarding the finding of the dead body. He also informed PW2, the father of the deceased. Then PW1 went to the temple and found bloodstained marks from the temple to the pond. He also found cut injuries on the neck, eyes and stomach. People gathered there and informed PWs 1 and 2 that the accused was there in the temple and he is responsible for committing the murder of the deceased. The accused had also committed seven murders earlier. ( 5 ) AFTER seeing the dead body PW1 lodged a report with PW13, the Superintendent of Police who registered the case in Crime No. 3 of 99 under Sections 302 and 201, I. P. C. Thereafter he despatched Ex. P22, F. I. R. to the concerned officials. ( 6 ) PW14 the Circle Inspector of Police took up further investigation. He visited the scene of offence. Ex. P2 is the Panchanama of the scene of offence which was conducted in the presence of PW8. Ex. P. 23 is the rough sketch of the scene of offence. Thereafter PW14 conducted inquest over the dead body of the deceased in the presence of PW9. Ex. P3 is the inquest report. Then PW14 sent the dead body for post-mortem examination. PW12, Civil Assistant Surgeon, Government Civil Hospital, Makthal conducted autopsy over the dead body of the deceased and issued Ex. P21, Postmortem Certificate in which it was stated that the cause of death was due to multiple injuries. ( 7 ) IT is further stated by the prosecution that the accused was arrested on 21-1-1999 by PW14 at Makthal Village in the presence of PW1. When the accused was in the police custody he alleged to have expressed hi willingness to discover MO-1 pant, MO-2 shirt, and MO-3 wrist watch. Accordingly they were discovered by him. PW2 is alleged to have identified MOs 1 to 3 and PW7 identified MO-3 watch. Thus on completion of investigation, PW14 filed charge sheet. ( 8 ) THE defence of the accused is of total denial. It is also suggested by the accused that he has been falsely implicated in this case. ( 9 ) TO bring home the guilt of the accused the prosecution let in the evidence of PWs. Thus on completion of investigation, PW14 filed charge sheet. ( 8 ) THE defence of the accused is of total denial. It is also suggested by the accused that he has been falsely implicated in this case. ( 9 ) TO bring home the guilt of the accused the prosecution let in the evidence of PWs. 1 to 14. They also produced certain documents which were marked as Exs. P1 to P24. ( 10 ) IN order to establish the fact that the deceased died homicidal death, the prosecution let in the evidence of PW14 and PW9. PW14 is the Circle Inspector who has conducted inquest over the dead body of the deceased in the presence of PW9. Ex. P3 is the inquest report. Thereafter at the request of PW14, PW12, Civil Assistant Surgeon, Government General Hospital conducted autopsy over the dead body of the deceased and noticed the following external injuries : (1) Incised would 7 x 5 x 3 cms. right angle of mouth sharp weapon post mortem no blood clots. (2) Incised would 5 x 3 cms. cut injury of the nose, sharp weapon (3) Multiple sharp injuries seen over both cheeks caused by sharp weapon. (4) Multiple sharp injury seen over the anterior abdomen walls caused by sharp weapon. (5) Contusion 10 x 3 cms. on left parietal region caused by blunt weapon. Antimortem injury. (6) Cut throat injury seen on the anterior aspect of the neck extending 15 cms. horizontally 20 cms. vertically and 10 cms. in depth. The structures involved in the injury include both caroteid arteries both jugular veins, Hyoid bones, Trachea, Oesophagus neck muscles. ( 11 ) DOCTOR opined that injury Nos. 1 to 4 are postmortem injuries. The cause of death was due to shock and haemorrhage due to multiple injuries. According to his opinion the deceased might have died 12 to 24 hours prior to postmortem examination. Injury Nos. 1 to 4 and 6 as opined by the Doctor could be possible by an instrument like knife. Injury No. 5 can be caused by a blunt weapon like knife. As per his observation he issued postmortem certificate Ex. P. 21. ( 12 ) CONSIDERING the evidence let in by the prosecution to establish the homicidal death, we would hold that the prosecution did prove that the deceased died homicidal death. Injury No. 5 can be caused by a blunt weapon like knife. As per his observation he issued postmortem certificate Ex. P. 21. ( 12 ) CONSIDERING the evidence let in by the prosecution to establish the homicidal death, we would hold that the prosecution did prove that the deceased died homicidal death. ( 13 ) IN order to connect the accused with the crime as stated earlier, the prosecution let in the evidence of PWs 1 to 14. PW1 happens to be the Village Administrative Officer. He was told by PW3 and one Datturam that they had seen the dead body lying in a pond behind the temple. On getting the information PW1 went to the scene of offence and saw the dead body lying in a pond with multiple injuries and therefore he prepared a report Ex. P1 and it was handed over to the police. PW13 registered a case against the accused in Crime No. 3 of 99. Thus on the strength of the report given by PW1, the police machinery was set in motion. Further investigation was conducted by the Circle Inspector PW-14. ( 14 ) PW2 is the father of the deceased. Admittedly he was not an eye-witness to the incident. He was also informed regarding the death of his son by Rajareddi-PW3 and on getting the information he went to the scene of offence and he had noticed that the deceased son had multiple injuries. He was able to identify MO-1 pant, MO-2 shirt, MO-3 wrist watch as that of his son and thus PW2 has no knowledge regarding the offence in question. ( 15 ) PW3 is Rajareddi who had visited the temple of Kuntarangaswamy in the morning of 15-1-1999 for Darshan along with his friend. He noticed a dead body lying in the pond and thereafter he informed PW1 as well as PW2 regarding the death of the deceased. ( 16 ) PW4 is a material witness who had seen the accused dragging the dead body from the temple to the pond. PW4 was driving the tractor at about 7. 30 p. m. on 14-1-1999. He had done the first trip of loading and un-loading the materials at about 10. 30 p. m. According to the version of PW4 it is evident that he had seen the accused dragging the dead body of the deceased towards the pond. PW4 was driving the tractor at about 7. 30 p. m. on 14-1-1999. He had done the first trip of loading and un-loading the materials at about 10. 30 p. m. According to the version of PW4 it is evident that he had seen the accused dragging the dead body of the deceased towards the pond. ( 17 ) THE learned counsel Sri Padmanabha Reddy submitted at the bar that the evidence of PW4 is totally artificial. This evidence was brought up by the prosecution so as to connect the accused with the crime. Our attention was invited by the learned counsel to the cross-examination of PW4 in which he has asserted that he is deposing for the first time in the Court and that he had seen the accused dragging the deceased towards the pond on the night of 14-1-1999. It was also brought to the notice by the learned counsel that the statement of PW4 under Section 161, Cr. P. C. was recorded by the police on 15-1-1999 at the time of inquest. He did not state before the police that he had seen the accused dragging the dead body of the deceased and before his statement was recorded, he has not disclosed the above fact to any one. ( 18 ) CONSIDERING the unnatural conduct of PW4 in not disclosing the above fact, we hold that the evidence of PW4 is not at all worthy of any credence. Hence we are inclined to reject the evidence of PW4 in toto. ( 19 ) THE evidence of PW5 and PW6 was let in by the prosecution only to establish the fact that the accused was present in the village on the 11th day. Even if the evidence of PWs. 5 and 6 is accepted, it leads the prosecution nowhere. ( 20 ) PW7 has identified MO-3 watch as belonging to the deceased as he is a related person. But in the cross-examination he admitted that he cannot give the make of MO-3 writ watch. Therefore the identification of PW7 cannot be believed. ( 21 ) PW8 is a person who had attested the panchanama of the scene of offence from where the incriminating articles like MO-4 plastic bags, MO-5 pancha, MO-6 pant, etc. , were discovered from the scene of offence. PW9 had attested the inquest report. Therefore the identification of PW7 cannot be believed. ( 21 ) PW8 is a person who had attested the panchanama of the scene of offence from where the incriminating articles like MO-4 plastic bags, MO-5 pancha, MO-6 pant, etc. , were discovered from the scene of offence. PW9 had attested the inquest report. We have already discussed the evidence of PW9 in the earlier paragraphs of the judgment. ( 22 ) ACCORDING to the prosecution after the arrest of the accused, the accused is alleged to have expressed his willingness to discover the incriminating articles. The statement of the accused was recorded by police in the presence of PW10 and in his statement the accused is alleged to have discovered MOs 1 to 3. ( 23 ) WE would like to put certain things on record. The evidence of PW10 was recorded by the learned Judge. The entire evidence which was recorded by the learned Judge is in-admissible under Section 25 of the Evidence Act. The learned Judge ought not to have recorded such statement. As per the evidence of PW10 the confessional statement was made by the accused in the presence of police. Therefore the evidence of PW10 has to be rejected in toto. ( 24 ) PW11 is the Proprietor of Royal Photo Studio, Makthal and PW12 is a Doctor whose evidence has been already discussed. PW13 is a Police Officer who had recorded the FIR and PW14 is the Investigating Officer who had investigated the case. ( 25 ) AS stated earlier the prosecution mainly relied upon the evidence of PW4 so as to connect the accused with the crime. It also appears from the judgment of the trial Court that much stress was given by the learned Judge on the evidence of PW4 so as to hold that the accused is responsible for causing the death of the deceased. We have rejected the evidence of PW4 for the reasons which we have assigned in the earlier paragraph of our judgment. If the evidence of PW4 is excluded from the evidence, nothing remains in this case and it can be stated that the accused discovered certain articles especially MOs 1 and 2 which happened to be the pant and shirt of the deceased. If the evidence of PW4 is excluded from the evidence, nothing remains in this case and it can be stated that the accused discovered certain articles especially MOs 1 and 2 which happened to be the pant and shirt of the deceased. The said discovery is not believed by us for the reason that if at all the accused wanted to kill the deceased for the purpose of game, he would not have carried away the trouser and shirt of the deceased. Therefore the evidence in the form of discovery by the accused is totally rejected. ( 26 ) THIS being the position, we are surprised to note how the learned Judge was pleased to impose death sentence on the accused/appellant. ( 27 ) IN a latest case reported in Ramji Rai v. State of Bihar, 1999 (8) SCC 389 : 2000 Cri LJ 19. Their Lordships of the Supreme Court have given the guidelines under which the death sentence has to be ordered. Their Lordships held that in order to award death sentence the Court should ask itself and answer the following questions : (1) Was there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (2) Were the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? ( 28 ) IF the above rules are applied, we hold that in the present case there is nothing uncommon. Moreover it is a case of no evidence and therefore we set aside the order of conviction and sentence of hanging imposed upon the accused/appellant. ( 29 ) THUS the criminal appeal No. 18/2000 stands allowed by setting aside the order of conviction and sentence imposed on the accused/appellant. We further direct that the accused/appellant be set at liberty forthwith if he is not required in any other case. R. T. No. 1/99 is rejected. Order accordingly.