HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
AND
HON'BLE JUSTICE A.SANTHOSH REDDY
CRIMINAL APPEAL No.769 of 2013
JUDGMENT: (per Dr. Justice Chillakur Sumalatha)
Questioning the validity and the legality of the
judgment that is rendered by the Court of V Additional
District and Sessions Judge (Fast Track Court), Ranga
Reddy District in Sessions Case No.387 of 2011, dated
06.9.2013, wherein and whereby appellant Nos.1 and 2
were convicted for the offences punishable under
Sections 302, 404 and 201 IPC, the present Criminal
Appeal is filed.
2. Having found appellant Nos.1 and 2 guilty of the
offences charged, for the offence punishable under
Section 302 IPC, they were sentenced to undergo
imprisonment for life and to pay fine of Rs.500/- in
default of payment of fine, to undergo simple
imprisonment for one month. They were further
sentenced to undergo rigorous imprisonment for a period
of six months and to pay fine of Rs.500/- in default of
payment of fine, to undergo simple imprisonment for one
2
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CrlANo.769 of 2013
month the offence punishable under Section 404 IPC.
Likewise, they were sentenced to undergo rigorous
imprisonment for a period of six months and to pay fine
of Rs.500/- in default of payment of fine, to undergo
simple imprisonment for one month the offence
punishable under Section 201 IPC.
3. Heard Sri P.Prabhakar Reddy, learned counsel for
appellant No.1, Sri K.Venkat Rao, learned counsel for
appellant No.2 and also the learned Assistant Public
Prosecutor representing the respondent-State. Also, gone
through the contents of the written submissions made by learned counsel for appellant No.2 and further, perused the contents of the decisions relied upon by the learned counsels.
4. The matrix of the prosecution case, as could be perceived through the contents of the charge sheet, is that appellant No.1 (hereinafter be referred to as "accused No.1" for the sake of convenience of discussion) worked as Production Manager in Ushakiran Movies, Chennai. While he was attending a serial by name Alu 3 Dr.CSL, J & ASR, J CrlANo.769 of 2013 Balu, he got acquaintance with Smt Vellanki Anantha Laxmi (hereinafter be referred to as "the deceased" for the sake of convenience of discussion). Accused No.1 gave a chance to the daughter of the deceased as a child artist. Later, accused No.1 resigned from his job and joined Gemini channel. While, accused No.1 was attending the serial by name Missamma, he got acquaintance with appellant No.2 (hereinafter be referred to as "accused No.2" for the sake of convenience of discussion). Accused No.1 gave a chance to the son of accused No.2 as a child artist. During that period, accused No.1 developed illegal intimacy with accused No.2. Both of them started living together.
5. On 25.02.2009, accused No.1 went to the house of a junior artist by name Mallika to seek money. There, he met the deceased and informed the deceased about his financial crises. He sought the help of the deceased. The deceased informed accused No.1 that if he gives a chance to her to act in serials, then she would give him money. Both of them exchanged their contact numbers. At that time, accused No.1 observed the gold ornaments worn by 4 Dr.CSL, J & ASR, J CrlANo.769 of 2013 the deceased. He hatched a plan to commit theft of the gold ornaments and kill the deceased. He informed the plan to accused No.2. As per their plan, accused No.1 contacted the deceased on 28.02.2009 over phone. The deceased met accused No.1 at Borabonda. Accused No.1 took the deceased to the house where he is living with accused No.2. Accused No.1 got one beer to the deceased and one whisky to him. After consuming the liquor, both the accused pounced upon the deceased and strangulated her with a chunny. After confirming her death, accused No.1 took the gold ornaments from the body of the deceased, and also cash of Rs.700/- and cell phone from her handbag. Both the accused stuffed the dead body of the deceased into a gunny bag and stitched it. They shifted the dead body of the deceased to Habeebnagar drainage nala and threw the same into the nala. Later, they took petrol, poured on the dead body of the deceased and set it ablaze. But, the dead body was not burnt due to the presence of water. Subsequently, both the accused went to Nellore and sold the gold 5 Dr.CSL, J & ASR, J CrlANo.769 of 2013 ornaments for Rs.27,000/- and spent the same for their necessities.
6. On the complaint given by P.W-2, a case was registered and was investigated into. On reliable information, on 29.3.2009 accused No.1 was apprehended and interrogated. Accused No.1 confessed the commission of offence in the presence of panchayatdars. Basing on the confessional statement of accused No.1, Police went to the nala where the dead body of the deceased was thrown, traced the dead body, conducted the scene of offence panchanama and drew rough sketch. Inquest was held over the dead body of the deceased in the presence of the panchayatdars. Photographs of the dead body of the deceased were also taken. Subsequently, the dead body was shifted to Gandhi Hospital, Hyderabad for post-mortem examination. Accused No.1 led Police and the panchayatdars to a rented house. Accused No.2 was present in the said house. Accused No.2 was taken into custody and interrogated. Her statement was recorded. The gilt ornaments and the cell phone of the deceased 6 Dr.CSL, J & ASR, J CrlANo.769 of 2013 were recovered. The Hero Honda motor cycle over which dead body of the deceased was carried to nala was also seized. Panchanama was conducted and the rough sketch of the scene of offence was also drawn. Both the accused were arrested and remanded to judicial custody. Subsequently, accused No.1 was taken to Police custody and the gold ornaments were recovered from the shop at which both the accused sold them. The femur bone pertaining to the deceased was sent to Forensic Science Laboratory, Hyderabad for examination. The doctor who conducted autopsy over the dead body of the deceased opined that the deceased died due to strangulation.
7. On committal of the case, the Court of V Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar framed charges against both the accused for offences punishable under Sections 302, 379 and 201 read with Section 34 IPC and conducted trial.
8. Having subjected the evidence of P.Ws-1 to 13, Exs.P-1 to P-16 and MOs.1 to 8 to scrutiny, the learned 7 Dr.CSL, J & ASR, J CrlANo.769 of 2013 judge of the trial Court came to a conclusion that the prosecution has established the guilt of both the accused beyond all reasonable doubt for the offences punishable under Sections 302, 404 and 201 IPC and accordingly, convicted and sentenced them. The judgment thus rendered is under challenge.
9. In the light of the afore-mentioned factual scenario, the points that emerges for consideration are:
(1) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 committed the offence of culpable homicide amounting to murder punishable under Section 302 IPC.
(2) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 dishonestly misappropriated the property which was in possession of the deceased at the time of her death and thereby, committed offence punishable under Section 404 IPC.
(3) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 caused disappearance of evidence with an intention to screen themselves from legal punishment and thereby, committed offence punishable under Section 201 IPC.
(4) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the 8 Dr.CSL, J & ASR, J CrlANo.769 of 2013 appellants/accused, which in turn requires the interference of this Court exercising appellate jurisdiction
10.Point Nos.1, 2 & 3:-
As rightly projected by learned counsels appearing for accused Nos.1 and 2, which is not opposed or disapproved by the learned Assistant Public Prosecutor, the case purely rests on circumstantial evidence.
11. Bringing to the notice of this Court the relevant points to be considered for convicting the accused in a case which purely rests on circumstantial evidence, the learned counsel for accused No.1 relied upon two important rulings of the Hon'ble Apex Court. The first decision is the one in the case between Padala Veera Reddy Vs. State of AP1, wherein the Court at para 10 of the judgment held as follows:-
"Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently 1 AIR 1990 SC 79 9 Dr.CSL, J & ASR, J CrlANo.769 of 2013 held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
12. The second decision is the one in the case between Prakash Vs. State of Karnataka2, wherein the Court at para 72 of the judgment held as follows:-
"It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact.
2 (2014) 12 SCC 133 10 Dr.CSL, J & ASR, J CrlANo.769 of 2013 In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused."
13. Thus, basing on the afore-mentioned principles of law enunciated, we have to scrutinize the evidence scrupulously and examine carefully the circumstances appearing in this case so as to come to a conclusion with regard to proof of guilt of the accused beyond all reasonable doubt.
14. Learned counsels appearing for accused Nos.1 and 2 stressed extensively and projected their arguments mainly on two grounds, i.e., (1) reliability of testimony of the prime witnesses as well as the crucial documents; and (2) identification of the dead body and connecting the accused with the crime.
15. Ex.P-1-complaint has set the criminal law into motion. Ex.P-1-complaint was given by P.W-2. The evidence of P.W-2 is that the deceased is his wife and she was working as junior artist in the movies. As on the date of the incident, he was at Vijayawada. P.W-1 telephoned 11 Dr.CSL, J & ASR, J CrlANo.769 of 2013 to him and informed him that his wife is missing. Immediately, he rushed to Hyderabad and searched for her, but could not find her. On 07.3.2009, himself and P.W-1 went to Ramachandrapuram Police Station and lodged a complaint (Ex.P-1). On 29.3.2009, Police informed them that they got information about a dead body and requested them to come and identify the dead body. They were taken to a nala at Moosapet where a gunny bag containing some material was opened in their presence. They found dead body of his wife in it. On the basis of the saree on her person, they identified the dead body.
16. Thus, by the evidence of P.W-2, it is clear that P.W-2 was not present at the house on the date on which the deceased left the house and did not return thereafter. His evidence is also that he was informed by P.W-1 over phone regarding missing of his wife. P.W-2 in Ex.P-1- complaint did not narrate that he was not present at the house on the date of the incident and that, he was at Vijayawada on the said day. In Ex.P-1-complaint, P.W-2 narrated that at the time the deceased left the house, she 12 Dr.CSL, J & ASR, J CrlANo.769 of 2013 was wearing blue colour work saree, blue colour blouse, one black beads gold chain, locket, one gold mangalasuthra, ear bands (matilu), two rings and wrist watch. Thus, P.W-2 narrated as if he himself witnessed what the deceased was wearing when she left the house. The evidence of P.W-2 is that basing on the saree which she was wearing when she left the house, the dead body was identified. However, the mother of the deceased i.e., P.W-1 stated that she identified the deceased on seeing the dead body because she is her mother.
17. The evidence of P.W-1 is that the deceased is her daughter and four years back, on one day, her daughter received phone call and while she was going out, she enquired the deceased where she is going. The deceased informed her that she received a phone call from one Ravi Prasad and she wants to introduce her son in T.V. serials and by stating so, she went outside. On the same day, she telephoned to the deceased, but could not contact her as her cell phone was switched off. She informed the matter to her relatives and then, she made a phone call to P.W-2 and informed him. They searched for four days 13 Dr.CSL, J & ASR, J CrlANo.769 of 2013 and later gave a complaint to Police. She further deposed that Police informed them that they traced a dead body and that, they took two persons into their custody and those persons stated that they kept the dead body in a gunny bag and threw it in a nala at Moosapet. On that, herself and some of her relatives went to Police Station, where Police informed them that the accused demanded Rs.5,000/- from the deceased and as the deceased did not pay the said amount, they gave some cool drink to her in which some substance was mixed and made her drink the same and after the deceased became unconscious, they killed her by strangulation. They kept the dead body in their office and later, took the gold ornaments, kept the dead body in a gunny bag and threw the same into a nala. She further deposed that Police tried to trace out the gunny bag, but it could not be traced. The two accused were brought to that place and they revealed the location and then the dead body was traced.
18. As earlier pointed out, identification of dead body was a crucial factor for the prosecution for establishing 14 Dr.CSL, J & ASR, J CrlANo.769 of 2013 the guilt of the accused. P.W-1 stated that the deceased being her daughter, she identified the dead body. P.W-2 gave evidence to the effect that on the basis of the saree on the person, they identified the dead body. Therefore, it has to be seen whether the dead body was in a position to be identified as so and so person. P.W-3-the son-in-law of the deceased though stated that he identified the dead body, he did not reveal the grounds basing on which he could identify the same. One of the panch witnesses i.e., P.W-5 gave evidence to the effect that the dead body was found in water. The evidence of another panch witness i.e., P.W-6 is that when Police took out the dead body, they saw the same in a totally decomposed condition.
19. The evidence of P.W-10 who conducted autopsy over the dead body of the deceased requires thorough examination. The evidence of P.W-10 is that he received requisition from the Station House Officer, Ramachandrapuram Police Station to conduct post- mortem examination and accordingly, he conducted post- mortem examination on 29.3.2009. His evidence is that he found anti-mortem ligature mark of size 28 x 4 cms 15 Dr.CSL, J & ASR, J CrlANo.769 of 2013 around the neck. He also stated that knot was on the left side of the neck. He further deposed that the approximate time of death is one month prior to the date of post- mortem examination. During the course of cross- examination, P.W-10 admitted that since the body was in a decomposed condition, he could not find identification marks on the body. When he could not find the identification marks and when his evidence is that all organs are softened, brain liquified, how he could find ligature mark around the neck is not known. Surprisingly, he has even given the size of the ligature mark. He deposed in his chief-examination that the approximate time of death is one month prior to the date of post-mortem examination and the body was in a decomposed condition.
20. The aforesaid facts, more particularly that the death occurred one month prior to the date of post- mortem examination, the body, as stated by the witnesses including the doctor who conducted post- mortem examination, was in a decomposed condition and further, the evidence of P.W-10 that he could not find the 16 Dr.CSL, J & ASR, J CrlANo.769 of 2013 identification marks as the body was in a decomposed condition, casts any amount of suspicion about the genuineness in the observation made by P.W-10 and the evidence given to the effect that he found anti-mortem ligature mark of size 28 x 4 cms around the neck of the deceased. Some how this fact was lost sight by the trial Court. Though the Police collected the femur bone and sent the same to the Forensic Science Laboratory for forensic examination, it did not yield any result. The contents of Ex.P-16- Forensic Science Laboratory report reveals that blood sample was collected from P.W-1 who is the mother of the deceased and the said blood sample and the femur bone collected from the dead body of the deceased were subjected to forensic examination. However, the result of the examination and the report of the Scientific Officer is as under:-
"DNA is extracted from item No.1. There is no DNA yield from item No.2. The DNA profile of item No.2 is necessary to compare with the DNA profile of item No.1. Hence, no report can be given."17
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21. Thus, on what basis the dead body that was found was opined to be that of the deceased-Anantha Laxmi is not known. As per the evidence of prosecution witnesses, the dead body when it was traced, was in a totally decomposed condition. The genuineness of Ex.P-1-
complaint about the wearing apparel of the deceased becomes doubtful as it is not P.W-2 who had witnessed the said facts. Though P.W-1 stated that she could identify the dead body as the same pertains to her daughter, in the light of the evidence of other witnesses, the genuineness in the said evidence becomes doubtful.
22. At this juncture, it is relevant to make a mention about the chemical changes that would occur when the dead body of a human being is exposed to different environmental situations.
23. We first discuss about signs of death and changes following death-
Forensic traphonomy is the study and interpretation of postmortem processes of human remains, i.e. the history of a body following death. A knowledge of the signs of 18 Dr.CSL, J & ASR, J CrlANo.769 of 2013 death help differentiate death from suspended animation. The changes which take place after death are helpful in estimation of the approximate time of death. The signs of death appear in the following order.
Immediate (somatic death): (1) Insensibility and loss of voluntary power. (2) Cessation of respiration. (3) Cessation of circulation.
Early (cellular death): (4) Pallor and loss of elasticity of skin. (5) Changes in the eye. (6) Primary flaccidity of muscles. (7) Cooling of the body. (8) Postmortem lividity. (9) Rigor mortis.
Late (decomposition and decay): (10) Putrefaction. (11) Adipocere. (12) Mummification."
24. The method of decomposition involves two main processes:
(1) Autolysis, (2) Putrefaction.
Autolysis: Autolysis is self-digestion of tissues. Soon after death, cell membranes become permeable and breakdown, with release of cytoplasm containing enzymes. Lysosomes and their digestive enzymes (mainly hydrolases) are released from the cells. The proteolytic, 19 Dr.CSL, J & ASR, J CrlANo.769 of 2013 glycolytic and lipolytic action of ferments causes autodigestion and disintegration of organs without bacterial influence. This chemical process is increased by heat and is stopped by freezing or inactivation of enzymes by the heat. The earliest autolytic changes occur parenchymatous and glandular tissues and in the brain. The lining of intestines, adrenal medulla and pancreas autolyse within hours of death. Autolytic fermentation results in maceration of the dead foetus in utero, early softening and liquefaction of the brain of the newborn and infants, and softening of the internal organs. The earliest external sign is a whitish, cloudy appearance in the cornea.
Putrefaction: The terms decomposition and putrefaction are used as synonyms. It is the final stage following death, in which destruction of the soft tissues of the body is caused, produced mainly by the action of bacterial enzymes, mostly anaerobic organisms derived from the intestines. Other enzymes are derived from fungi, such as Penicillium and Aspergillus, and sometimes from insects. The chief destructive bacterial agent is Cl. welchii, which 20 Dr.CSL, J & ASR, J CrlANo.769 of 2013 causes marked haemolysis, liquefaction of postmortem clots and of fresh thrombi and emboli, disintegration of tissues and gas formation in blood vessels and tissue spaces. Lecithinase produced by Cl. welchii is most important. This hydrolyses the lecithin which is present in all cell membranes including blood cells, and is responsible for the postmortem haemolysis of blood. The other organisms include Streptococci, Staphylococci, B. proteus, B. coli, B. aerogenes capsulatus, bacteroids, anaerobic lactobacilli, diphtheroids, etc. Bacteria produce a large variety of enzymes and these breakdown the various tissues of the body. It begins immediately after death at the cellular level. There is progressive breakdown of soft tissues and the alteration of their proteins, carbohydrates and fats. Organisms enter the tissues shortly after death mainly from the intestines, and less often through the respiratory tract, or through external skin wounds. The fall in the oxygen concentration in the tissues and rise in hydrogen ion concentration after death, favour bacterial growth and spread throughout the body. Because the protective 21 Dr.CSL, J & ASR, J CrlANo.769 of 2013 agencies of the body are absent, the bacteria spread through the blood vessels, using the proteins and carbohydrates of the blood as culture media. The characteristic features of putrefaction are: (1) changes in the colour of the tissues, (2) collection of gases in the tissues, and (3) liquefaction of tissues. (Referred for profit from the Book "The Synopsis of Forensic Medicine and Toxicology" by Dr. K.S.Narayan Reddy).
25. Admittedly, as earlier discussed, the case totally rests on circumstantial evidence. Therefore, it is incumbent on part of the prosecution to establish and connect each link of the chain so as to leave no room for the Court to doubt the genuineness in the evidence produced. However, in the case on hand, the identity of the dead body itself is doubtful.
26. In the light of the discussion that went on supra, we, unhesitatingly hold that there is no possibility at least to the remotest, to identify the dead body basing on physical features and to authenticate the cause of death.
22
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27. Moving to the next aspect i.e., regarding the manner in which both the accused were arrested and the alleged confessional statements of the accused, the genuineness in the version of the prosecution as projected before the Court is highly doubtful. As per the version of the prosecution, the series of events are as under:-
(1) On reliable information, accused No.1 was taken into custody and on interrogation, he confessed the commission of offence along with accused No.2.
(2) On recording the confessional statement of accused No.1 in the presence of panch witnesses, all moved to a nala where the dead body was thrown and thereafter, the dead body was recovered.
(3) Accused No.1 thereafter led Police party and the panch witnesses to the house where himself and accused No.2 are residing and at the said house, accused No.2 was apprehended.23
Dr.CSL, J & ASR, J CrlANo.769 of 2013 (4) Later, both accused Nos.1 and 2 were brought to Police Station and were remanded to judicial custody.
28. Thus, it is clear that by the time P.Ws.1 to 3 and others reached Police Station on the instructions of Police, only accused No.1 was present at the Police Station. Likewise, at the time of tracing out and recovery of dead body, only accused No.1 was present and he has shown the dead body. But, P.W-1 gave evidence to the effect that on one day, Police called them and informed that they have traced a dead body and that, they took two persons into custody and those two persons stated that they kept the dead body in a gunny bag and threw it into a nala. She further deposed that both the accused revealed the location of the gunny bag and basing on their confessional statement, the gunny bag was traced. Thus, by the evidence of P.W-1, it is clear that even accused No.2 was present along with accused No.1 at the Police Station and also at the place where the dead body was recovered. However, the version of the prosecution is that accused No.2 was taken into custody after the dead 24 Dr.CSL, J & ASR, J CrlANo.769 of 2013 body was recovered and that too, basing on the confessional statement of accused No.1. Even the panch witness i.e., P.W-5 used plurality and stated that about two years back, Ramachandrapuram Police called him and P.W-6 to Police Station and the accused were present in the Police Station. Use of the word "were" denotes that more than one accused were present at Police Station by the time they reached Police Station. This corroborates the testimony of P.W-1 and establishes that accused No.2 was also present along with accused No.1 at that time. Though P.W-6 stated that after recovery of the dead body, accused No.1 led them to the house of accused No.2 and there, they apprehended accused No.2, P.W-5 who was one of the panch witnesses did not state so. Even to consider the evidence of P.W-6 to be genuine, P.W-6 himself has deviated from what he has deposed in his chief-examination. P.W-6, who deposed in the chief- examination that accused No.1 led them to the house of accused No.2 and at that house, they found accused No.2, in the course of his cross-examination clearly stated that both the accused were present at Police 25 Dr.CSL, J & ASR, J CrlANo.769 of 2013 Station when he went there. Thus, the genuineness in the version put forth by the prosecuting agency regarding the manner of arrest of accused Nos.1 and 2 become highly doubtful.
29. Moving forward, the prosecuting agency tried to connect the accused with the death of the deceased through recovery of her belongings i.e., M.Os.1 to 7. However, admittedly, and as rightly projected by the learned counsels appearing for the accused, no test identification parade was conducted for identification of the said Material Objects by the family members of the deceased. Why such an identification parade was not conducted is not revealed anywhere. The submission before the Court that those Material Objects belongs to the deceased cannot be given credence, that too, in a case like this, which purely rests on circumstantial evidence. Further, it is not the version of P.W-2, as earlier discussed, that he witnessed the deceased leaving the house with MOs.2 to 7 on her body and MO-1-cell phone in her possession. Therefore, this Court is unable to agree with the findings given by the learned judge of the 26 Dr.CSL, J & ASR, J CrlANo.769 of 2013 trial Court that recovery of those Material Objects connects the accused with the crime.
30. Further more, as earlier discussed, the manner in which the accused were arrested has become highly doubtful. The prosecution has totally failed to establish that MOs.1 to 7 belongs to the deceased and that they were recovered from the possession of the accused.
31. When the Material Objects could not be connected with the crime and the accused, and where the dead body traced out cannot be conclusively held that it is the dead body of the deceased-Anantha Laxmi, it cannot be held that the accused have caused disappearance of evidence with an intention to screen themselves from the legal punishment.
32. The prosecuting agency has not even taken steps to present the call data regarding the mobile numbers of the deceased and accused No.1 so as to establish that they were in contact with each other. Though the Investigating Officer i.e., P.W-12 during the course of his cross-examination admitted that there are three cell 27 Dr.CSL, J & ASR, J CrlANo.769 of 2013 numbers mentioned in Ex.P-1-complaint, one belonging to the deceased and the other two belonging to P.W-2 and that, he sent a requisition to the service provider of those three cell phones to furnish the call data and that, he received reply from the service provider, but for the reasons best known, the said material has not seen light of the day. What prevented the Investigating Officer from disclosing those particulars is not known.
33. Further more, as per the version of the prosecution, the deceased and accused No.1 met at the house of one Mallika and there, they exchanged their contact phone numbers and soon thereafter, the incident occurred. Therefore, it is incumbent on part of the prosecuting agency to record the statement of the said Mallika. Though P.W-12 stated that as per his investigation, the deceased was introduced to accused No.1 though Mallika, he deposed that he has not examined the said Mallika. The reasons are not stated anywhere.
34. All the above circumstances casts a cloud of suspicion on the entire veracity of the prosecution. That 28 Dr.CSL, J & ASR, J CrlANo.769 of 2013 apart, a meticulous perusal of Ex.P-1-complaint goes to show that the said complaint to some extent has got a broad spacing between the lines and thereafter, the said space was cut short. It appears as if the identity particulars were written in detail without gap subsequently. Though there is no substantive proof to that effect and no such contention was raised by the accused, yet as the same is observed by this Court, a mention is made in that regard. Keeping that fact aside, there are so many lacunae in the case of the prosecution and also, there are number of aspects which remains unanswered. Some genuine and worth investigating aspects also remains unattended. When a case rests on circumstantial evidence, the prosecuting agency should take every care to collect such cogent and convincing material so as to place the same before the Court of law for connecting the accused with the crime and thereby, to get the culprits convicted.
35. However, in the case on hand, the investigating agency has not taken care to investigate the case on proper lines and collect sufficient material. When such 29 Dr.CSL, J & ASR, J CrlANo.769 of 2013 convincing evidence could not be produced by the prosecution, the ultimate conclusion that can be drawn is to extend the benefit of doubt in favour of the accused and thereby, to acquit them.
36. Thus, having regard to the aforesaid discussion, this Court holds that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt for the offences punishable under Sections 302, 404 and 201 IPC.
37.Point No.4:-
A perusal of the judgment of the trial Court reveals a clear mention and observation by the learned judge that the entire case rests upon circumstantial evidence and in such a case, all the circumstances have reasonably to be proved as per the decisions of the Hon'ble Supreme Court rendered in the case between Sharad Biridhichand Sarda Vs. State of Maharashtra3 and in the case between Bodh Raj Vs. State of Jammu & Kashmir4.
3 AIR 1984 SC 1622 4 (2002) 8 SCC 45 30 Dr.CSL, J & ASR, J CrlANo.769 of 2013
38. The Hon'ble Apex Court in Sharad Biridhichand's case (supra), observed as follows:
"The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established."
39. Likewise, discussing the same aspect, in Bodh Raj's case (supra), the Hon'ble Apex Court at paras 9 to 12` of the judgment held as under:-
"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the 31 Dr.CSL, J & ASR, J CrlANo.769 of 2013 principal fact can be legally inferred or presumed.
10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan {AIR 1977 SC 1063], Eradu v. State of Hyderabad {AIR 1956 SC 316}, Earabhadrappa v. State of Karnataka {AIR 1983 SC 446}, State of U.P. v. Sukhbasi {AIR 1985 SC 1224}, Balwinder Singh v. State of Punjab {AIR 1987 SC 350} and Ashok Kumar Chatterjee v. State of M.P. {AIR 1989 SC 1890} The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab {AIR 1954 SC 621} it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of 32 Dr.CSL, J & ASR, J CrlANo.769 of 2013 A.P. {(1996) 10 SCC 193}, wherein it has been observed thus:
"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
12. In Padala Veera Reddy v. State of A.P. {AIR 1990 SC 79} it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and 33 Dr.CSL, J & ASR, J CrlANo.769 of 2013 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
40. Having held that bearing the above principles in mind, it has to be seen whether the prosecution established the guilt of the accused beyond all reasonable doubt, the learned judge of the trial Court thereafter lost sight of the fact that even the identity of the dead body could not be established by the prosecution beyond all reasonable doubt. When such an initial and crucial fact could not be established, any amount of evidence regarding other factors cannot be considered to hold that the accused are guilty of the offences charged.
41. The prosecution failed to establish in clear terms the manner in which the accused were apprehended. As 34 Dr.CSL, J & ASR, J CrlANo.769 of 2013 discussed in the preceding points, whether accused Nos.1 and 2 were arrested at once or whether basing on the confessional statement of accused No.1, accused No.2 was arrested is also not stated with clarity.
42. Undoubtedly, the last seen theory cannot be applied as there is no evidence on record to show that the deceased accompanied accused No.1 and they both went to the house where accused Nos.1 and 2 resided together. Recovery of the Material Objects in the manner as projected by the prosecuting agency is also not established. Therefore, we are unable to agree with the findings of the trial Court that the accused are found guilty of the offences charged.
43. The established principle of law is that in a criminal case where there is a conflict between presumption of innocence and contra, the former must prevail. The case on hand, which entirely rests on circumstantial evidence, should bear such evidence which is consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and they should exclude every other 35 Dr.CSL, J & ASR, J CrlANo.769 of 2013 hypothesis, except the guilt of the accused. But, the chain of evidence produced by the prosecution is not complete to draw a conclusion that the accused have committed the offences charged. Therefore, this Court is of the view that the prosecution failed to establish that in all human probability, offences have been committed by the accused and the accused alone.
44. Without observing the lacunae in the case of the prosecution, which are glaring on the face of record, the learned judge of the trial Court came to a conclusion that the prosecution has established the guilt of the accused beyond all reasonable doubt. Therefore, we hold that the judgment of the trial Court is unsustainable in the eye of law.
45. Resultantly, the Criminal Appeal is allowed. The appellants/Accused Nos.1 and 2 are found not guilty of the offences charged. The appellants/Accused Nos.1 and 2, therefore, are acquitted of the said charges under Section 235(1) Cr.P.C. Consequently, they shall be set at liberty forthwith if their presence is not required in any 36 Dr.CSL, J & ASR, J CrlANo.769 of 2013 other cases. The fine amount, if any, paid shall be refunded to them.
46. As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________________________ Dr.CHILLAKUR SUMALATHA, J _________________________ A.SANTHOSH REDDY, J 26.8.2022 dr