K. Lakshman, J.

1. Heard Sri K.Vasanth Rao, learned counsel for the appellant and Sri Syed Yasar Mamoon, learned Additional Public Prosecutor.

2. Appellant is the sole accused in S.C.No.149 of 2017. Vide impugned judgment, dated 19.07.2018, learned VIII Additional District and Sessions Judge at Medak, convicted him for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment.

3. According to the prosecution, the appellant is the younger son of the deceased. The appellant addicted to alcohol, used to commit thefts and to meet his vices, the appellant demanded money from the deceased, for which, the deceased refused. Therefore, there was scuffle between him and the deceased. The appellant beat the deceased indiscriminately with two bamboo sticks and fire wood stick, due to which, the deceased died on the spot. When LWs.1 to 5 tried to intervene, the appellant threatened them, upon which, they fled away. Thus, the appellant dragged the dead body of the deceased to the house and on noticing the same, the villagers also fled away.

4. To prove the guilt of the appellant, the prosecution examined the mother of the appellant and wife of the deceased as P.W.1, P.W.2, P.W.3 and PW.6 - eye witnesses, P.W.4 - panch witness for scene of offence, seizure and inquest, P.W.5 and P.W.7 - panch witnesses for confession and recovery vide Exs.P6 and P7, P.W.8 -Doctor, who conducted autopsy over the dead body of the deceased, P.W.9 - Sub-Inspector of Police, who issued Ex.P13 FIR and P.W.10 - Investigating Officer, who examined the witnesses and recorded their statements and filing of charge sheet on completion of investigation.

5. It is apt to note that L.W.1, elder brother of the appellant and elder son of the deceased died during the pendency of the trial. Therefore, he was not examined. P.Ws.1, 3, 5, 6 and 7 turned hostile to the prosecution case. P.W.2 is the neighbor of the appellant. He deposed that about three months ago at 11.00 p.m, there was an altercation between the deceased and the appellant. They were beating each other. He went there. Appellant beat his father with stick. PWs.3 and 6 also came there and they also witnessed the incident. They tried to separate the appellant and the deceased. The appellant tried to beat them and therefore they left the place. Later, they came to know that the deceased died. M.Os.1 and 2/sticks were marked through him. Appellant was beating his father demanding money.

6. However, during cross-examination, he has admitted that his house is located three houses away from the house of the deceased. He rushed to the house of the deceased within two or three minutes of hearing the altercation.

7. P.W.1, mother of the appellant and wife of the deceased, did not support the prosecution.

8. P.W.3 deposed that he heard a quarrel at the house of the deceased at 10.00 P.M., he rushed to the house of the deceased. The quarrel was between the deceased and the appellant. He did not observe any injuries on the deceased. Next day morning, he heard that the deceased died. He does not know the reason for the death of the deceased. Thus, he did not support the prosecution case and, therefore, he was declared hostile by learned Additional Public Prosecutor. Nothing useful was elicited from him during cross-examination.

9. P.W.4 is the panch witness for scene of offence, seizure and inquest. He deposed with regard to conducting of inquest panchanama vide Ex.P3 and seizure of MOs.3 to 6, vide Ex.P5 - panchanama.

10. P.W.5 and PW.7 are the panch witnesses for confession and recovery. They did not support the prosecution and, therefore, they were declared hostile by learned Additional Public Prosecutor.

11. P.W.6 is alleged eye witness and he did not support the prosecution. He was also declared hostile. Even then, nothing was elicited during cross-examination by learned Additional Public Prosecutor.

12. P.W.8 is the Doctor, who conducted autopsy over the dead body of the deceased. According to him, he found the following ante mortem external and internal injuries. External Injuries:

               1. Abrasion over left Jaw measuring 5 x 3 cm

               2. Abrasion over right and left hand measuring 6 x 3 cms and 5 x 4 cms

               3. Abrasion over right forearm measuring 8 x 3 cms

               4. Abrasion over left forearm measuring 6 x 2 cms

               5. Burns over back side with peeling of skin of 16 x 8 cms

               6. Burns over buttocks 6 x 4 cms and 8 x 3 cms with peeling of skin.

               7. Abrasion over left knee joint measuring 3 x 1 cms.

               8. Abrasion below left knee joint measuring 4 x 3 cms

               9. Abrasion over right knee joint measuring 6 x 2 cms

               Internal injuries:

               1. Fracture of 2nd, 3rd, 4th and 6th right ribs.

               2. Rupture of right lung.

               3. Rupture of liver.

               According to him, the cause of death was due to “Cardio Respiratory arrest due to shock from the injuries to internal organs.” Ex.P11 is the postmortem examination report. He further deposed that the injuries noted by him are possible if a person is hit by weapon, like MO1 and 2 shown to him.

13. P.W.9 is the Sub-Inspector of Police, who registered Ex.P13 FIR on receipt of Ex.P12 - complaint from L.W.1. P.W.10 is the Investigating Officer, who laid charge sheet on completion of investigation.

14. As discussed supra, P.Ws.1, 3, 5, 6 and 7 turned hostile. They did not support the prosecution. L.W.1 - elder brother of the appellant died after lodging Ex.P12 complaint during pendency of trial.

15. Perusal of record would reveal that there are no eye witnesses to the incident. Though PW.2 is said to be an eye-witness, his evidence is not trustworthy. When the evidence of PW.2 is excluded, the entire case rests on circumstantial evidence.

16. It is settled principle of law that trial Court can record conviction against the accused basing on circumstantial evidence provided all the circumstances relied upon by the prosecution form complete chain and the prosecution has to prove the said circumstances are determinative by providing cogent evidence.

17. In the present case, P.Ws.2 and 3 except deposing that there is a scuffle between the appellant and the deceased, they did not depose that they had witnessed the appellant beating the deceased and due to the same, the deceased received injuries and died on the spot.

18. As per the evidence of P.W.8 - the Doctor, who conducted autopsy over the dead body of the deceased, it is evident that the cause of death was due to “Cardio Respiratory arrest due to shock from the injuries to internal organs.” According to him, the injuries noted by him are possible if a person is hit by a weapon, like MO1 and 2.

19. As discussed supra, though, according to the prosecution, the appellant beat the deceased with MO1 and MO2 - sticks, they were recovered from the scene of offence and not recovered from the appellant. They were marked through P.W.2 and not through P.W.4, panch witness for recovery.

20. Perusal of record would also reveal that Ex.P3/scene of offence panchanama along with rough sketch, Ex.P5/seizure panchanama of clothes, Ex.P15/FSL report, there is discrepancy with regard to colour and nature of clothes of the deceased. In Ex.P3, scene of offence, there is discrepancy with regard to the clothes worn by the deceased. It is mentioned that the deceased wore white banian, red colour knicker and white colour lungi. In Ex.P5 - seizure panchanama, it is mentioned that the deceased wore grey colour shirt and white colour lungi. In Ex.P15, FSL report, it is mentioned that a white colour cotton lungi with red and green colour border with dark brown stains. Thus, there is a discrepancy with regard to nature and colour of the clothes of the deceased.

21. Learned trial Court convicted the appellant holding that though P.Ws.1, 3 and 6 did not state the cause of death of the deceased, the evidence of P.W.2 beyond all reasonable doubt established that in that altercation, appellant beat his father with MO1 and MO2 sticks and when P.W.1, P.W.2 and P.W.3 tried to intervene, appellant threatened them and tried to beat them, due to which, they went away and the appellant continued his barbaric act of beating his deceased father indiscriminately and the deceased, who was an old man, aged 65 years, could not sustain the attack and died on the spot.

22. Learned trial Court further held that though prosecution examined P.Ws.5 and 7 said to be panch witnesses, in whose presence, the appellant was said to have confessed his guilt leading to seizure of his blood stained shirt from his possession, both of them turned hostile and did not support the prosecution. But, they deposed that the police obtained their signatures on white papers and they did not know what was written on them and no one confessed in their presence and nothing was seized in their presence.

23. Learned trial Court further held that hostile testimony of P.Ws.5 and 7 does not in any way weaken the case of the prosecution nor it lessen the evidentiary value of their evidence that has already come on record. Even the hostile witnesses P.Ws.1 and 3 admitted that the appellant was present at the time of quarrel and the quarrel was between the appellant and deceased. Thus, the presence of the appellant at the time of the incident and occurring of quarrel between the father and son is a fact.

24. In fact, the said findings of the trial Court are contrary to the evidence, more particularly, the depositions of prosecution witnesses i.e., P.Ws.1, 2, 3, 5, 6 and 7.

25. None of the witnesses deposed that the appellant beat the deceased and attacked upon him. None of the aforesaid witnesses deposed that the appellant beat his deceased father indiscriminately. Therefore, the said finding of the learned trial Court that the appellant continued his barbaric act and beat is deceased father indiscriminately is contrary to the evidence on record.

26. It is settled principle of law that however grave the offence may be, prosecution has to prove the same beyond reasonable doubt by producing reliable and cogent evidence. Basing on the surmises, conjunctures and presumptions, learned trial Court cannot record conviction against the appellant. It is also settled principle of law that if two views are possible on the basis of evidence on record and one favourable to the accused should be considered.

27. As discussed supra, P.Ws.2, 3 and 5 deposed with regard to altercation between the appellant and the deceased and that both of them quarreled with each other. None of them deposed that the appellant attacked upon the deceased and beat him indiscriminately as held by the learned trial Court. Without considering the said aspects, learned trial Court erred in arriving at the conclusion that the appellant - accused committed the aforesaid offence and thereby recorded conviction and imposed life sentence thereof. Thus, the said conviction and the sentence of life imprisonment are liable to be set aside. The appellant is in Central Prison, Cherlapally, Medchal - Malkajgiri District from 21.03.2017 onwards.

28. In the light of the aforesaid discussion, the conviction and sentence of life imprisonment imposed by learned VIII Additional District and Sessions Judge, Medak for the charge under Section 302 of IPC against the appellant - accused vide impugned judgment dated 19.07.2018 in S.C.No.149 of 2017 are set aside. The appellant - accused is acquitted for the aforesaid charge under Section 235(1) of Cr.P.C. Bail bonds furnished by the appellant shall stand cancelled. The fine amount, if any, paid by the appellant, is ordered to be returned to the appellant - accused after expiry of appeal time. Since the appellant - accused is in jail, the Superintendent, Central Prison, Cherlapally, Medchal - Malkajgiri District, is directed to release him, if he is not required in any other case.

29. The present Criminal Appeal is accordingly allowed.

As a sequel, miscellaneous applications, if any pending in the Criminal Appeal, shall stand closed.