K. Suresh Reddy, J.

1. Sole accused in Sessions Case No.76 of 2016 on the file of the Court of XII Additional District & Sessions Judge-cum-VI Additional Metropolitan Sessions Judge, Vijayawada is the appellant. The Appellant was tried and convicted by the learned Additional Sessions Judge under Section 302 IPC and sentenced to suffer rigorous imprisonment for “Life” and also to pay a fine of Rs.2,500/- (Rupees two thousand and five hundred only), in default, to suffer simple imprisonment for two (02) months.

2. Substance of the charge is that at about 04.00 AM on 20.10.2015, the accused attacked one Shaik Chan Basha (hereinafter referred to as “deceased”) with a soda bottle and beat him on head and face indiscriminately, causing his death, thereby committed an offence under Section 302 IPC.

3. Case of the prosecution, as emanated from the evidence of prosecution witnesses, briefly, is as follows:

                  i) The accused and the material prosecution witnesses are residents of Vijayawada. PW.1 is father, PW.2 is wife and PW.4 is friend of the deceased respectively. Deceased was working in cable TV as Manager. Earlier, the deceased was involved in a number of criminal cases and a rowdy sheet was opened against him at I Town Police Station, Vijayawada. While so, on 19.10.2015 at about 08.00 PM, the deceased went out and did not return home on that night. On the next day, i.e., on 20.10.2015, at about 04.00 AM, a boy by name Sunkara Srikanth (LW.7) went to the house of PW.1 and informed him that the accused beat the deceased with a soda bottle on his head, while he was going on a motorcycle in Sivalayam Street, Radham Centre, I Town, Vijayawada.

                  ii) Immediately, PW.1 along with PW.4 went to Sivalayam Road and came to know that the deceased was shifted to the Government General Hospital, Vijayawada in 108-Ambulance and then, they went to the Government Hospital and found the dead body of the deceased. Thereafter, PW.1 went to the Police Station and gave a report. PW.10-the then Sub Inspector of Police, I Town Police Station received Ex.P1-report from PW.1 at about 08.00 AM on 20.10.2015 and registered a case in Crime No.256 of 2015 under Section 302 IPC. He issued copies of FIR to all the concerned. FIR is marked as Ex.P7. On the same day, at about 09.00 AM, PW.13-the then Inspector of Police, Bhavanipuram Police Station took up investigation. He secured the presence of PW.8, PW.10 and staff and examined the scene of offence located at Radham Centre, situated infront of Corner Pan Shop. He seized blood strained clothes-MO.4 and blood stained control earth- MO.5, broken glass piece of soda bottle-MO.1. He also got the scene of offence photographed through PW.11. Photographs were marked as Exs.P8 and P9. He prepared an observation report Ex.P5 in the presence of PW.8. He also prepared Ex.P14-rough sketch at the scene of offence. From there, PW.13 visited the Government General Hospital, Vijayawada and held inquest over the dead body in the presence of PW.9 and others. He seized the clothes Mos.6 and 7 belonging to the deceased. Inquest report was marked as Ex.P6. He recorded statements of PW.1 to PW.4 and others. He sent the dead body for postmortem examination.

                  iii) PW.7-the then Assistant Professor, Government General Hospital, Vijayawada conducted autopsy over the dead body and opined the cause of death was due to head injury. He issued postmortem certificate Ex.P4.

                  iv) On 23.10.2015, PW.14-Inspector of Police, I Town Police Station took up further investigation and on 03.11.2015, on credible information, PW.14 went to the house of accused and arrested him in the presence of PW.6 and another. The accused said to have confessed about commission of offence. On the confession made by the accused, PW.14 seized the neck portion of soda bottle from his house in the presence of PW.6 and another under a panchanama Ex.P2. PW.13 found the accused wearing blood stained shirt and pant. He seized said MO.3-clothes of the accused. He arrested the accused and remanded to judicial custody. Mos.1 to 7 were sent to RFSL for Chemical analysis under Ex.P15-letter of advice and Ex.P16-covering letter. RFSL report was marked as Ex.P17. PW.13 got statements of PW.3 and PW.4 recorded by the learned Magistrate under Section 164 Cr.P.C. On 21.11.2025, the Test Identification Parade was conducted by PW.12-the learned I Additional Chief Metropolitan Magistrate, Vijayawada. In the said Test Identification Parade, PW.3 said to have identified the accused. Test identification parade was marked as Ex.P12. After receiving all the documents and after completion of investigation, PW.14 laid charge sheet.

4. In support of its case, the prosecution examined PW.1 to PW.14, marked Exs.P1 to P17 and exhibited MOs.1 to 7.

5. On behalf of the defence, Exs.D1 and D2 portions of Section 161 Cr.P.C., statements of PW.5 were marked.

6. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating evidence appearing against him.

7. Accepting the evidence of solitary testimony of PW.3, learned Additional Sessions Judge convicted the appellant as aforesaid.

8. Heard Sri D.Kodanda Rami Reddy, learned counsel for the appellant and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the State.

9. We have carefully perused and analyzed the entire evidence on record.

10. The prosecution rests its case on the solitary testimony of PW.3. For better appreciation, the Examination-in-Chief of PW.3 is extracted hereunder:

                  “At the time of incident, I was studying M.B.A at Guntur. During Dasarah holidays I came to Vijayawada to assist my brother who is having a Pan Shop under name and style Corner Pan Shop. He also sells cool drinks and Cigarettes. My brother asked me to come to his shop at about 03.00 AM on 20.10.2015 to assist him. Then I opened the shop at 03.00 AM. I was adjusting the articles in the shop. At that time a person was coming on a motor cycle from Vinayaka Swamy Temple side. The said person is aged about 37 years. When he had taken turn near Pan Shop a person aged about 35 years who was standing at the turning taking a soda bottle from the nearby shop of our shop and beat him with it on the head of the deceased. The said person beat the deceased on the head near temporal region. Then the said person coming on motor cycle fell down. The said person took out the same soda bottle and poked on the face of the deceased 4 or 5 times. Then I raised voice with fear. Then I went near a Traffic Constable and gave complaint to him. Then people around 15 gathered at that place. Later, the deceased was shifted in Ambulance to Government General Hospital for treatment. The Police examined me on the morning. Later I came to know that the assailant is Ramarao and the deceased is Chand Basha. I can identify the accused. The witness has shown the accused who is sitting in the Court. The Police after reducing my statement read over and explained the contents to me. I admitted the same as true and correct.

                  On 21.11.2015 at about 03.00 PM, I went to District Jail on summons received from Court. I identified the accused in Identification Parade held in District Jail, Vijayawada. The Magistrate had taken my signature on the identification proceedings. Police took me to the Government General Hospital. The Police have taken my signatures on some papers.”

11. According to PW.3, he was studying MBA at Guntur and during Dussehra holidays, he came down to Vijayawada and assisted his brother who was running a Pan Shop in the name and style of Corner Pan Shop at Radham Center, Vijayawada. PW.3 states that at about 03.00 AM on 20.10.2015, he opened the shop and was adjusting articles in the shop. He states that at that time, a person came on a motorcycle from Vinayaka Swamy Temple side and when he was taking turn near his pan shop, the accused standing at the turning, took a soda bottle from the nearby soda shop and beat him with it on the head. Then the person on motorcycle fell down and the accused took up the same soda bottle and pocked on the face of the deceased 4 or 5 times. He further states that he raised voice with fear and went near a traffic constable and complained to him about the offence. He also stated that around 15 persons gathered at that place. Later, the injured was shifted in 108-Ambulance to the Government General Hospital, Vijayawada. Though, PW.3 complained to the traffic constable, the prosecution did not examine the said traffic constable, for the reasons best known to them. Though 15 persons gathered at the scene of offence, no one was examined by the prosecution. As such, except the solitary testimony of PW.3, there is no other evidence available on record. Further, PW.3 did not give descriptive particulars of the person who attacked the deceased. PW.3 in his earliest version has stated that the deceased was going on motorcycle and the accused was standing at the corner of the shop. In the cross- examination PW.3, the defence elicited as follows:

                  “It is true that I have spoken two versions before Police and the Magistrate when my statement was recorded. The witness adds that it was due to confusion”.

12. As such, PW.3 has given two (02) divergent versions, at the time of investigation and at the time of recording evidence. In his cross examination, PW.3 has also admitted that he never opened the shop at about 03.30 AM before the date of incident and after the date of incident. He opened the shop at about 03.30 AM on that particular date alone. At one stage, PW.3 has stated that the accused came on a motorcycle and beat the deceased with soda bottle who was standing at the corner. At another stage, he stated that while the deceased was going on motorcycle, the accused who was standing at the corner beat him with soda bottle. PW.3 has given two (02) divergent versions. Further, the prosecution has not recovered the said motorcycle.

13. Having analyzed the evidence of PW.3, we have no hesitation to come to a conclusion that he is not a wholly reliable witness in the circumstances of the case.

14. Learned counsel for the appellant relied on the judgment of the Hon’ble Supreme Court in Bhimapa Chandappa Hosamani and Others Vs. State of Karnataka reported in (2006) 11 SCC 323 wherein the Hon’ble Supreme Court held as follows:

                  “24. We have undertaken a very close and critical scrutiny of the evidence of PW1 and the other evidence on record only with a view to assess whether the evidence of PW1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eyewitness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.

                  25. So tested, we do not find the evidence of PW1 to be of that quality. In the first instance, she began with inventing a false story about existence of a motive. The narration of events as they took place before the actual murder of her son are also shown to be untrue. There is considerable doubt as to whether the first information was recorded on her saying at about 8.00 or 8.30 in the morning. Her evidence also leaves a lurking suspicion about her being an eye witness. Having discarded the evidence of PW2, and the other two alleged eyewitnesses having turned hostile, we find no reliable corroboration of her testimony. We do not find this case to be one in which the judgment of acquittal deserved to be set aside.

15. The same view was expressed by the Hon’ble Supreme Court in the Judgment reported in (2023) 1 SCC 180 and also in 2021 (1) ALD (Crl.) 213 (SC).

16. In the case on hand, there is no corroboration to the solitary testimony of PW.3. As already pointed out, PW.3 in his cross-examination specifically admitted that he has given two (02) versions before the Police and the learned Magistrate.

17. So far as PW.1 and PW.2 are concerned, they are none other than father and wife of the deceased respectively. PW.1 in his evidence specifically stated that at about 04.00 AM of 20.10.2015, a boy by name Srikanth came to his house and informed him that the accused beat the deceased with soda bottle on his head. But curiously, the prosecution did not examine the said Srikanth who gave information to PW.1 though cited as LW.7. Except the said fact, the evidence of PW.1 and PW.2 is not at all helpful to the prosecution.

18. So far as PW.4 and PW.5 are concerned, they have stated that there was an altercation between them and the accused at about 11.00 PM on 19.10.2015. As such, evidence of PW.4 and PW.5 is also not at all helpful to the prosecution.

19. Next evidence available on record is the evidence of investigating officer-PW.14 coupled with the evidence of PW.6-mediator. According to PW.6 and PW.14, they arrested the accused on 03.11.2015 at about 07.30 AM at his house. According to the evidence of both these witnesses, the accused was wearing blood stained clothes at the time of arrest, though the incident took place on 20.10.2015. It is highly improbable that the accused was wearing the very same blood stained clothes MOs.1 and 2, even after two (02) weeks, from the date of incident. According to the evidence of PW.6 and PW.14, the accused said to have produced the neck portion of soda bottle which was marked as MO.2. The said fact is also highly improbable to accept as to why the accused carried the neck portion of soda bottle to his house and kept it with him. As such, no reliance can be placed on the so called recovery of Mos.1 to 3.

20. Coming to the next evidence available on record is the Test Identification Parade conducted by PW.12-the judicial officer. PW.12 in his evidence stated that he conducted test identification parade on 21.11.2015.

21. PW.3 in his cross-examination stated as follows:

                  “In the identification parade the persons standing by the side of the accused are not of the same age and similarities of the person.”

                  Further PW.3 did not furnish the descriptive particulars of the accused, either before the investigating officer or before the Court. As already pointed out, PW.3 in his cross-examination has stated that in a Test Identification Parade, the other persons were not of the same age and similarities of the accused. As such, no reliance can be placed on the so called delayed test identification parade. As already pointed out, PW.3 is not a wholly reliable witness and no corroboration was placed to the evidence of PW.3.

22. In view of the above facts and circumstances, the conviction and sentence recorded by the learned Additional Sessions Judge is not sustainable.

23. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by the learned XII Additional District & Sessions Judge- cum-VI Additional Metropolitan Sessions Judge, Vijayawada, in Sessions Case No.76 of 2016 dated 10.05.2018, under Section 302 IPC, is hereby set aside. Accordingly, the Appellant is acquitted under Section 302 IPC. As the appellant was granted bail by this Court vide I.A.No.01 of 2023 on 18.04.2024 in terms of Batchu Rangarao & Others v. State of A.P1, he is directed to surrender before the concerned and complete the formalities. No order as to costs.

                  Consequently, interlocutory applications, if any, pending shall stand closed.