RAMESH MADHAV BAPAT, J. ( 1 ) THE sole accused in Sessions Case No. 180 of 2000 was tried by the learned Sessions judge, Srikakulam for offences punishable under Sections 302 and 201 of the Indian penal Code. On evidence, the learned Judge found the accused-appellant guilty of the offence punishable under Section 201 of the indian Penal Code and convicted and sentenced him to suffer rigorous imprisonment for three years. The learned judge further found the accused-appellant guilty of the offence punishable under section 302 of the Indian Penal Code and convicted and sentenced him to death. After passing the death sentence, the learned judge referred the case to this Court for confirmation of the death sentence and, therefore, it was registered as RT No. 2 of 2001 whereas the accused, aggrieved by the aforesaid order of conviction and sentence, filed Criminal Appeal No. 586 of 2001. Since both matters arise out of the same sessions case, we dispose of them by this common judgment. ( 2 ) THE substance of the charge against the accused was that on 23-7-2000 at vaddiputhiga village, he caused the death of one Ravi Bisai, aged about five years, by strangulating him with a "lungi" and thereafter caused the disappearance of evidence by throwing the dead body in ganugu Gunta Tank. ( 3 ) THE prosecution story can be briefly narrated as follows. PW1 is the brother of the accused. PW3 is the mother of the deceased. Hari Krishna Bisai is the father of the deceased and junior paternal uncle of PW1 and the accused. PW4 is the father-in-law of PW3. PW6 is the brother of pw4. Thus, the accused was closely related to the deceased. ( 4 ) IT is the further case of the prosecution that the house of the accused is situated opposite to the house of PW3. The accused was married about two years before the incident and from three months prior to the incident, she was at her parents house. For about a year prior to the incident, the accused had been asking PW3 to have sex with him and he would come to her house in the absence of her husband. The accused used to present himself in naked position in his house, which was visible from the verandah of PW3, on seeing her. PW3 did not agree to the demand made by the accused. The accused used to present himself in naked position in his house, which was visible from the verandah of PW3, on seeing her. PW3 did not agree to the demand made by the accused. Therefore, he used to threaten her. PW3 alleged to have complained to PW4 her father-in-law, and also to the parents of the accused. PW4 in turn informed the father of the accused about such misbehaviour. When the father of the accused questioned the accused, he was beaten up by the accused. This incident happened about four months prior to the incident in question. ( 5 ) ON 23-7-2000 at about 5. 30 p. m. , PW3 gave food to the deceased. Thereafter the deceased was playing in front of his house. PW4 who is the grandfather of the deceased was sitting in the verandah at that time. According to him, the accused called the deceased from his house by showing a packet of mixture. The deceased went to the accused but thereafter did not return. On that day, the father of the deceased was not in the house. Thereafter, pws. 3, 4 and others started searching for the deceased, as he did not return home. ( 6 ) ACCORDING to PW5, at about 6. 30 p. m. , on the date of incident, he saw the accused going towards Ganugu Gunta tank and also found him carrying some weight on his left shoulder covered with a cloth. According to PWs. 3 and 6 at about ( 7 ) 00 p. m. , while they were searching for the deceased, they found the accused coming from the side of Ganugu Gunta Tank. They noticed that both of his legs and his ankles were with mud and his "lungi" was also wet. He was taking bath near a water tap. According to PW6 he enquired the accused as to wherefrom he was coming, but the accused did not reply. 7. It is further stated by the prosecution that PW4 went to the house of pw1 at 7. 30 p. m. , and informed him about the missing of the deceased. PW1 prepared a report, which is Ex. Pl. On the strength of the report, PW9, the Sub-Inspector of Police registered the case in Crime No. 38 of 2000 under the caption "boy missing". He issued copies of the FIR, to all concerned. ( 8 ) AT about 11. PW1 prepared a report, which is Ex. Pl. On the strength of the report, PW9, the Sub-Inspector of Police registered the case in Crime No. 38 of 2000 under the caption "boy missing". He issued copies of the FIR, to all concerned. ( 8 ) AT about 11. 00 p. m. , PW7 found the dead body of the deceased in Ganugu gunta Tank. It was brought out and placed in the garden of one Tulasayya Reddy. PW7 informed the same tc PWs. 1, 3 and 4. PW3 and others went there and found the dead body of the deceased. They noticed a ligature mark on the neck of the deceased. ( 9 ) ON 24-7-2000 at about 6. 00 a. m. , PW1 informed PW2 the Village administrative Officer, about the incident. On the basis of the statement of PW2, he prepared a report Ex. P2 and sent the same to PW9. On the basis of Ex. P2, PW. 9 altered the sections of law to 302 and 201 of the Indian Penal Code and issued copies of the altered FIR, to all concerned. He proceeded to the scene of offence and got it photographed. Exs. P12 and P13 are the photographs. PW10 took up investigation. He proceeded to the scene of offence and conducted inquest over the dead body of the deceased in the presence of PW2. Ex. P4 is the inquest report. He also recorded the statements of various witnesses. He got the scene of offence sketched. It is ex. P19. Thereafter the dead body of the deceased was sent to PW8, the Civil assistant Surgeon, Community Hospital, ichhapuram, who conducted autopsy over the dead body of the deceased and issued ex. P8 the post-mortem report. The accused was arrested and it is stated that when the accused was in police custody, he discovered MOs. 1 and 2, which were attached under Panchanama. ( 10 ) IN order to connect the accused with the crime, the prosecution examined pws. l to 10. The documents produced by it were marked as MOs. 1 to 20. The defence of the accused is of total denial. ( 11 ) LOOKING to the prosecution case, admittedly, there are no direct witnesses. There are some circumstances, which were relied upon by the learned Judge in convicting the accused. l to 10. The documents produced by it were marked as MOs. 1 to 20. The defence of the accused is of total denial. ( 11 ) LOOKING to the prosecution case, admittedly, there are no direct witnesses. There are some circumstances, which were relied upon by the learned Judge in convicting the accused. ( 12 ) WE proceed to scrutinise the evidence led by the prosecution so as to ascertain whether the circumstances, which were proved by the prosecution, could warrant death sentence against the accused. ( 13 ) THE prosecution wants to reply upon the evidence of PWs. 3 and 4. These witnesses were examined to show motive. It has been the specific case of the prosecution through the mouth of PW3 that the accused used to demand her to have sexual intercourse with him, but she used to refuse and, therefore, the accused used to threaten her. She further stated in her evidence that she had complained to pw4 who happened to be her father-in- law and thereafter PW4 complained the same to the father of the accused. When the father of the accused questioned the accused, he was beaten by the accused. We hold that the evidence of PWs. 3 and 4 is proved. ( 14 ) IN order to establish the fact that the deceased died a homicidal death, the prosecution wants to rely upon the evidence of PW10 who conducted inquest over the dead body of the deceased in the presence of PW2 who acted as the mediator. Ex. P4 is the inquest report. After the inquest was over, the dead body was sent to PW8 for conducting post-mortem examination. PW8 was working as the Deputy Civil assistant Surgeon, Community Health center, Ichhapuram. On receipt of the requisition, he conducted autopsy over the dead body of the deceased and noticed the following external injuries :"the entire body was swollen including genitalia. Flies present over the body. All the superficial layers on the body. Skin was peeled out from deep layers. Face is swollen and congested. Eyeballs were open and protruded. Lips were swollen and tongue protruded. Reddish froth was coming out from the nostrils and mouth. Bluish colouration of right iliac fosse and upper thigh. Front of the neck and right shoulder was congested". On internal examination, the Doctor found the following internal injuries. "the brain and maninges congested. Mouth and pharynx congested. Eyeballs were open and protruded. Lips were swollen and tongue protruded. Reddish froth was coming out from the nostrils and mouth. Bluish colouration of right iliac fosse and upper thigh. Front of the neck and right shoulder was congested". On internal examination, the Doctor found the following internal injuries. "the brain and maninges congested. Mouth and pharynx congested. On dissection all the anterior layers in front of the neck were found congested. Hyoid bone and thyroid cartilage are in tact. On opening the chest, oessophages found congested, tracia and broncite congested. Reddish froth present. In plural cavity about 10 mis. of blood present in the right side, and 20 ml. , in the left side. Both right and left lungs found congested. Petechial haemorrhages present. Heart was empty and congested. Abdomen, stomach is congested. 2 Oz of undigested rice particles were present. Intestines were congested. Liver congested. Spleen was congested. Kidneys both right and left were congested". ( 15 ) AS per his observation, he issued the post-mortem certificate, which is produced on record as Ex. P8. According to him, the deceased died due to asphyxia due to pressure on the neck. He further opined that the death must have occurred 24 to 48 hours prior to the post-mortem examination. ( 16 ) LOOKING to the evidence led by the prosecution on the point of homicidal death, we hold that the deceased did die a homicidal death. ( 17 ) THOUGH we have come to the conclusion, that the deceased died of homicidal death, it can be seen from the evidence of PW10 as well as PW2, who acted as panch witnesses, that it has been their specific case that when the inquest was conducted, they noticed a ligature mark around the neck of the deceased, whereas PW8, the Doctor, specifically stated that he did not find any ante-mortem external injuries. This is a little discrepancy as far as the evidence of those witnesses is concerned. ( 18 ) THE prosecution further wants to rely upon the circumstance that the deceased is last seen in the company of the accused. On this point, the evidence of PW4 was led. According to PW4, in the evening of the date of incident at about 6. 00 p. m. , his grandson i. e. , the deceased was playing in front of their house in the vacant site. On this point, the evidence of PW4 was led. According to PW4, in the evening of the date of incident at about 6. 00 p. m. , his grandson i. e. , the deceased was playing in front of their house in the vacant site. He was sitting in the verandah. He further deposed that the accused called the deceased by showing a mixture packet. The deceased went to the accused. Thereafter, the deceased did not return. ( 19 ) WE are not ready to believe the evidence of PW4 on this point. When the deceased did not return to the house, every body went in search of him. When PW4 was aware of the fact that the deceased went to the accused it was his first duty to go to the house of the accused and enquire about the whereabouts of the deceased, but pw4 did not do so and, therefore, his evidence to the effect that he had seen the deceased going to the accused cannot be accepted so easily. ( 20 ) IT has been the specific case of PW4 that the accused had shown a packet of mixture to the deceased and took the deceased along with him. The panchanama definitely goes to show that MO. 2 is not the same mixture packet, which was attached by police under panchanama. It appears that MO2 has been planted subsequently so as to make it convenient for the prosecution to support its theory. Therefore, we are not inclined to believe the evidence of PW4 on this aspect. ( 21 ) THE evidence of PW5 shows that he had seen the accused carrying some weight on his left shoulder covered by a cloth. PW5 happened to be the watchman in the garden of Tulasayya Reddy. But he did not enquire from the accused. Ex. P4- inquest report shows that the deceased was about 4 ft. in height and if PW5 found the accused carrying some weight which is 4ft. in length he would have definitely asked him as to what he was carrying on his shoulder roped in a cloth. But such was not the conduct on the part of PW5. Ex. P4- inquest report shows that the deceased was about 4 ft. in height and if PW5 found the accused carrying some weight which is 4ft. in length he would have definitely asked him as to what he was carrying on his shoulder roped in a cloth. But such was not the conduct on the part of PW5. He did not disclose the matter to anyone and it is for the first time on the following day when the dead body of the deceased was found, he gave the statement to the effect that he had seen the accused carrying something which was roped in a cloth. There is one more discrepancy in the evidence of PW5. In the statement before the police he stated that the accused was carrying something under his left- hand armpit. It is not so easy to carry a boy of 4 ft. in length in armpit. Therefore, the evidence of PW5 has to be rejected in toto. ( 22 ) PW6 is the younger brother of pw4. As per the prosecution story he had seen the accused hurriedly proceeding towards his house. He found the "lungi" of the accused wet and his legs smeared with mud. PW6 further stated that the accused had bath near a water tap. After all, the accused was a villager. If his "lungi" is wet and hands and legs were smeared with mud, it is not a circumstance that can be doubted. All the villagers work in the field and if mud sticks to their hands and legs. It cannot be called a circumstance to connect the accused with the crime. ( 23 ) IT appears from the judgment of the trial Court that on arrest the accused made a confession before the Police Officer. The learned Judge recorded the confessional statement, which was deposed to by the Investigating Officer, which reads as under:"he stated to me among other things that his wife had left for her parents place one year prior thereto. The learned Judge recorded the confessional statement, which was deposed to by the Investigating Officer, which reads as under:"he stated to me among other things that his wife had left for her parents place one year prior thereto. He also stated to me that Hemalatha @ Padma the wife of his cousin Harikrishna Bisai was good looking lady and their house was opposite to and nearer to his house and that he wanted to sexually enjoy her by one or other method and that eight months prior thereto in the absence of harikrishna in the village he had expressed his desire to Hemalatha and that she had abused him and had complained to her mother-in-law and to his mother and others and that all had abused him and that his desire had become strong and that he had been exhibiting himself nakedly in the absence of others to her and that she had been withdrawing into her house after abusing him and that he had been threatening her that he would enjoy her sexually and otherwise he would kill her or her children and that she did not surrender and that his desire took a strong shape. He also stated to me that on 23-7-2000 on a Sunday between 5. 30 p. m. , and 6. 00 p. m. , Hemalatha had served food to her son Ravi and had gone inside her house and that he had shown mixture packet and other eatables packet to Ravi bisai and had called him and he had come to his house. He also stated to me that the rope prepared with lungi cloth which was tied to the neck of Ravi Bisai and tightened and the mixture packet had been hidden by him in his house and that he would handover the same if he was followed. "this probably might have weighed in the mind of the learned Judge to convict the accused-appellant. Otherwise there is nothing on record to establish the fact that the accused was responsible for causing the death of the deceased. Under these circumstances, we hold that the order of conviction and sentence recorded against the accused-appellant cannot be sustained. ( 24 ) IN the result, Referred Trial No. 2 of 2001 is rejected. Criminal Appeal No. 586 of 2001 is allowed setting aside the order of conviction and sentence recorded against the accused-appellant. Under these circumstances, we hold that the order of conviction and sentence recorded against the accused-appellant cannot be sustained. ( 24 ) IN the result, Referred Trial No. 2 of 2001 is rejected. Criminal Appeal No. 586 of 2001 is allowed setting aside the order of conviction and sentence recorded against the accused-appellant. He be set at liberty forthwith, if not required in any other case.