THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL No.469 OF 2013
JUDGMENT: (per Hon'ble Smt. Justice Juvvadi Sridevi)
This Criminal Appeal, under Section 374(2) of the Code of
Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the
appellants/A1 & A2, aggrieved by the judgment, dated
18.03.2013, passed in S.C.No.582 of 2010 by the learned III
Additional Sessions Judge (FTC), Ranga Reddy District, whereby,
the Court below convicted the appellants/A1 & A2 for the offence
under Section 302, 201, 379 r/w 34 of IPC and sentenced them to
undergo rigorous imprisonment for life and to pay a fine of
Rs.500/- each, in default, to undergo simple imprisonment for
three months for the offence under Section 302 of IPC; to undergo
rigorous imprisonment for one year and to pay fine of Rs.1,000/-
each, in default, to undergo simple imprisonment for three months
for the offence under Section 379 of IPC; and to undergo rigorous
imprisonment for three years and to pay fine of Rs.500/- each, in
default, to undergo simple imprisonment for three months for the
offence under Section 201 of IPC. All the sentences were directed
to run concurrently.
2 AAR & JS, JJ
Crl.A.No.469/2013
2. We have heard the submissions of Sri P.Prabhakar Reddy,
learned counsel for the appellants/A1 & A2, Sri C.Pratap Reddy,
learned Public Prosecutor appearing for the respondent-State and
perused the record.
3. The case of the prosecution, in brief, is as follows:
On 09.07.2010 at 11.30 hours, PW.1-N.Lavanya lodged a report with Madhapur Police Station stating that on 08.07.2010 at 08:00 PM, her husband-N.Lingam (the deceased) informed that a person telephoned him that he will give money which he owe to him and as such, he was going to Hafeezpet. Again at 11:00 PMon the same day, her husband called her stating that he would come within one hour, but he did not return. She is suspecting that the person of Hafeezpet might have done something to her husband and moreover, the phone of the deceased was also switched off and requested to handover her husband to her.
4. Basing on the report lodged by PW.1, PW.9-SI of Police, Madhapur, registered a 'man missing' case in Crime No.440 of 2010 and issued Ex.P10-FIR and entrusted the investigation to PW.8-SI of Police, Madhapur, who recorded the statement of PW.1 and handed over the CD file to PW.13-Inspector of police for further investigation. PW.13 took up investigation from PW.8 on 3 AAR & JS, JJ Crl.A.No.469/2013 10.07.2010; obtained the detailed report of the cell of the man missing from the service provider through SOD; recorded the statement of LW.9-Zahid Ali Mohammed, basing upon which, came to know that the SIM which was in the name of said Zahid Ali Mohammed, was being used by appellant/A1; traced appellant/A1 at his house on the same day at 02:00 PM, recorded his confessional statement in the presence of mediators; seized MO.6- bike, recovered cash and cell phone pursuant to his confession; went to the scene of offence along with panch witnesses, recovered the dead body of the deceased from a septic tank; drafted panchanama for scene of offence and rough sketch, got the dead body photographed and sent the dead body to Gandhi Hospital mortuary; issued Section Alteration Memo under Ex.P15, apprehended appellant/A2 at his house; recorded his confession and recovered two gold rings and net cash of Rs.8,000/- and seized the cell phone of the deceased from the house of LW11- Shaik Abeed, which was given by appellant/A2 for usage; proceeded to the shop of PW.6 and recorded his statement and seized MO.1-gold chain under a cover of panchanama; held inquest over the dead body of the deceased under Ex.P8 in the presence of panch witnesses and remanded the appellants/A1 & A2 to judicial custody and on completion of investigation and 4 AAR & JS, JJ Crl.A.No.469/2013 collection of documents, laid charge-sheet before the learned IX Metropolitan Magistrate, Kukatpally at Miyapur, Cyberabad, for the offences under Sections 302, 201, 379 r/w 34 of IPC.
5. Learned Magistrate had taken cognizance against the appellants/A1 & A2 for the offences under Sections 302, 201, 379 r/w 34 of IPC, registered the same as P.R.C.No.106 of 2010 and committed the same to the Sessions Division under Section 209 of Cr.P.C., since the offence under Section 302 of IPC is exclusively triable by the Court of Session. On committal, the Court of Session numbered the case as S.C.No.582 of 2010 and made over to the Court below for disposal, in accordance with law.
6. On appearance of the appellants/A1 & A2, the Court below framed charges against them for the offences under Sections 302, 201, 379 r/w 34 of IPC, read over and explained to them, for which, the appellants/A1 & A2 pleaded not guilty and claimed to be tried.
7. To prove the guilt of the appellant/A1 & A2, the prosecution examined PWs.1 to 13 and got marked Exs.P1 to P18, besides case properties, MOs.1 to 9.
5 AAR & JS, JJ
Crl.A.No.469/2013
8. PW.1-N.Lavanya is the de-facto complainant. PW.2-
R.Dashratha Chary is the friend of the deceased. PW.3-Md.Chiraz was the person who lifted the dead body from the septic tank. PW.4-I.Gajapathi Rao is a panch witness for confession panchanama, Seizure Report and recovery of some material objects. PW.5-S.Dashrath Reddy is a panch witness for inquest panchanama. PW.6-K.Anil Jain is the owner of a gold shop and pledgor of MO.1-gold chain. PW.7-Dr.G.Deva Raju is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P9-PME Report. PW.8-M.Ramachander and PW.9- Lakshmikanth Reddy are the investigating officers. PW.10- Md.Khajuddin and PW.11-Md.Jafer are circumstantial witnesses, who were declared hostile. PW.12-E.Shiva Kumar is SI of Police, who accompanied PW.13-CI of Police for recovery of dead body of the deceased. PW.13-K.Srikanth Reddy is the investigating officer who completed investigation and laid charge-sheet before the Court concerned. Ex.P1 is the complaint. Ex.P2 is admissible portion of confession of appellant/A1. Ex.P3 is Seizure Report of appellant/A1. Ex.P4 is admissible portion of confession of appellant/A2. Ex.P5 is Seizure Report of appellant/A2. Ex.P6 is Scene of offence panchanama. Ex.P7 is Rough sketch. Ex.P8 is the Inquest Report. Ex.P9 is PME Report. Ex.P10 is FIR. Ex.P11 6 AAR & JS, JJ Crl.A.No.469/2013 is statement of PW.10 recorded under Section 161 of Cr.P.C. Ex.P12 is statement of PW.11 recorded under Section 161 of Cr.P.C. Ex.P13 is photographs. Ex.P14 is Seizure Report of appellant/A2. Ex.P15 is Section Alteration Memo. Ex.P16 is Cell phone details. Ex.P17 is Injury Certificate of appellant/A1. Ex.18 is Injury Certificate of appellant/A2. MO.1 is a gold chain. MOs.2 and 3 are gold rings. MO.4 is LG Phone. MO.5 is cash. MO.6 is a bike. MO.7 is a wire. MO.8 is a Reliance Phone and MO.9 is cash.
9. When the appellants/A1 & A2 was confronted with the incriminating material appearing against them and examined under Section 313 of Cr.P.C., they denied the same and claimed to be tried. No evidence, either oral or documentary, was adduced on behalf of the appellants/A1 & A2.
10. The trial Court, having considered the submissions made and the evidence available on record, vide the impugned judgment, dated 18.03.2013, convicted the appellants/A1 & A2 of the offences under Sections 302, 201, 379 r/w 34 of IPC and sentenced them as stated supra. Aggrieved by the same, the appellants/A1 & A2 preferred this appeal.
11. Learned counsel for the appellants/A1 & A2 would submit that the whole prosecution case is based on circumstantial 7 AAR & JS, JJ Crl.A.No.469/2013 evidence. There are no direct witnesses to connect the appellants/A1 & A2 with the subject death of the deceased. The Court below erroneously convicted the appellants/A1 & A2 for the offences under Sections 302, 201 and 379 r/w 34 of IPC, without there being any substantial evidence on record to prove their guilt beyond all reasonable doubt. PW.4 is planted as panch witness for the arrest of the appellants/A1 & A2, recovery of dead body of the deceased and certain material objects. In his cross-examination, PW.4 stated that the police interrogated the appellants/A1 & A2 in the presence of himself and other panch witness and they did not enquire the appellants/A1 & A2 directly, which renders the alleged confession of the appellants/A1 & A2 inadmissible in evidence. Further, no identification parade was conducted in relation to the recovered articles, which is against Rule 35 of the Criminal Rules of Practice and which renders the identification of MO.1-gold chain from the pledgor (PW.6) unbelievable and his evidence in that regard, doubtful. Further, PW.1 did not depose in her evidence with regard to missing of ornaments from the dead body of the deceased. Non-examination of LW9-Zahid Ali Mohammed, who stated that he has taken the SIM in his name but the same was being used by the appellant/A1, is fatal to the case of prosecution. PWs.10 and 11, though declared hostile, categorically stated in 8 AAR & JS, JJ Crl.A.No.469/2013 their evidence that they did not actually see the police getting the dead body lifted from the septic tank and that they did not see the appellants/A1 & A2 along with the police. Further, the 'last seen theory', which is an important link in a case based on circumstantial evidence, is totally absent in this case. The motive on the part of the appellants/A1 & A2 for the commission of the subject offence could not be proved by the prosecution. The evidence of the prosecution witnesses is not reliable and trustworthy and do not inspire confidence to act upon. The circumstances from which an inference of guilt is sought to be drawn against the appellants/A1 & A2 are not cogently and firmly established by the prosecution. The chain of events is not so complete to rule out the reasonable likelihood of innocence of the appellants/A1 & A2 and ultimately, prayed to allow the appeal by setting aside the conviction and sentence recorded against the appellants/A1 & A2 by the trial Court.
12. Per contra, the learned Public Prosecutor would submit that since the deceased refused to lend money to the appellants/A1 & A2, both of them decided to eliminate the deceased and in furtherance of their plan, on 08.07.2010, both the appellants/A1 & A2 called the deceased to their place, insisted him to lend money and on his refusal, both of them brutally murdered the deceased 9 AAR & JS, JJ Crl.A.No.469/2013 by pressing his neck and testicles and committed theft of the gold ornaments from the person of the deceased. In order to cause disappearance of evidence, both the appellants/A1 & A2 dumped the dead body of the deceased in the septic tank in the house of appellant/A2, after tying the hands. The evidence let in by the prosecution amply proves the guilt of the appellants/A1 & A2 of the offences under Sections 302, 201 and 379 r/w 34 of IPC. PW.7-doctor opined that the death of the deceased was due to homicidal strangulation. The confession made by the appellant/A1 & A2 and recovery of material objects pursuant to their confession clinchingly proves the guilt of the appellants/A1 & A2 beyond all reasonable doubt. There are no inconsistencies and contradictions in the evidence of prosecution witnesses. All the circumstances brought out against the appellant/A1 & A2 are of conclusive nature and definite tendency and they exclude every possible hypothesis of innocence of the appellants/A1 & A2. The chain of evidence led by the prosecution is complete and do not leave any reasonable ground for the conclusion inconsistent with the guilt of the appellants/A1 & A2. The Court below is justified in convicting and sentencing the appellants/A1 & A2 of the offences under Sections 302, 201, 379 r/w 34 of IPC and ultimately prayed to dismiss the 10 AAR & JS, JJ Crl.A.No.469/2013 appeal, by confirming the conviction and sentence recorded against the appellants/A1 & A2 vide the impugned judgment.
13. In view of the above submissions made by both sides, the points that arise for determination in this appeal are as follows:
1) Whether the death of the deceased-N.Lingam is homicidal?
2) Whether the appellants/A1 & A2 had caused the subject death of the deceased 08.07.2010 at the house of appellant/A2 situated at Hafeezpet, Hyderabad?
3) Whether the prosecution is able to prove the guilt of the appellants/A1 & A2 of the offences under Sections 302, 201, 379 r/w 34 of IPC, beyond all reasonable doubt?
4) Whether the conviction and sentence recorded against the appellant/A1 & A2 of the offences punishable under Sections 302, 201, 379 r/w 34 of IPC is liable to be set aside?"
5) To what result? POINTS:-
14. The deceased was the husband of PW.1 and friend of PW.2. It is the case of prosecution that the deceased was doing finance business and appellant/A1 is known to him previously. The deceased financed various persons at the instance of appellant/A1. The appellant/A1 was also insisting the deceased to give finance to him for which, the deceased was avoiding, as the appellant/A1 has got no means for repayment. Further, the appellant/A2 was also 11 AAR & JS, JJ Crl.A.No.469/2013 in need of finance for which, the deceased refused. When the mother of the appellant/A1 was suffering from ill-health, the appellant/A1 requested the deceased to lend money for which, the deceased refused and as such, the appellant/A1 decided to eliminate the deceased and take away whatever is available with him and discussed the same with the appellant/A2, who readily agreed. On 08.07.2010, at about 08:00 PM, the appellant/A1 called the deceased to come to Kothaguda and took him to the house of the appellant/A2, where, the appellant/A1 once again insisted the deceased to lend him Rs.30,000/-. When the deceased refused, an altercation took place and in the said process, the appellant/A2 pounced on the deceased and pressed his neck, while the appellant/A1 held the legs of the deceased and pressed his testicles and killed him. After confirming the death, both the appellants/A1 & A2 relieved the gold chain, two gold rings, cell phone and net cash and sold the chain for Rs.22,000/- and shared the amount equally and the appellant/A2 took two gold rings and cell phone and thereafter, they dumped the body in septic tank in the house of the appellant/A2 by tying his hands. Thus, the appellants/A1 & A2 are guilty of the offences under Sections 302, 201, 379 r/w 34 of IPC.
12 AAR & JS, JJ
Crl.A.No.469/2013
15. PW.7 is the doctor who conducted autopsy over the dead body of the deceased. He deposed that on 10.07.2010, on receipt of requisition from SHO, Madhapur, he conducted autopsy on the same day between 02:30 and 03:30 PM and found the following ante-mortem injuries on the dead body of the deceased.
1. Contusion 9 x 3 cms on left side of neck below left ear and left radius of mandible.
2. Contusion 1 x 1 cms on the middle part of mucosal surface of lower lip.
3. Contusions of neck muscles under the skin, on the front of the neck over the thyroid cartilage and belles of both sturnomustroid muscles in their middle part. Diffused hemorrhage contusion of the retropharyngeal fascia underneath thyroid cartilage.
4. Grazed abrasion 28 x 24 cms on front of chest and upper abdomen.
5. Contusion of 3 x 2 cms at the lower pole of left testicle. PW.7 further deposed that the approximate time of death is 36 to 48 hours prior to the post mortem examination. He opined that "the circumstantial evidences, the manner of disposal of dead body and the post mortem findings are consistent with death due to homicidal strangulation". Ex.P9 is the PME Report issued by PW.7. In Ex.P8-Inquest Panchanama, there is a mention that the testicles of the deceased were swollen. There is corroboration and consistency in the evidence of PW.7-doctor and Ex.P9-PME Report. Looking at the injuries found on the dead body of the deceased, the said injuries are possible when the neck of the deceased is throttled and testicles are pressed. The evidence of PW.7-doctor coupled with Ex.P8 and Ex.P9 proves that the death of the 13 AAR & JS, JJ Crl.A.No.469/2013 deceased-N.Lingam is homicidal. Further, there is no much dispute that the subject death is homicidal.
16. Now the question that requires answer is as to who caused the subject death of the deceased. Undisputedly, the whole prosecution case is based on circumstantial evidence. 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. The question whether chain of circumstances unerringly established the guilt of the accused needs careful consideration. The proof of a case based on circumstantial evidence, which is usually called 'five golden principles', have been stated by the Apex Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra1, which reads as follows:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the A1 & A2, that is to say, 1 AIR 1984 Supreme Court 1622 14 AAR & JS, JJ Crl.A.No.469/2013 they should not be explainable on any other hypothesis except that the A1 & A2 is guilty.
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the A1 & A2 and must show that in all human probability the act must have been done by the A1 & A2.
17. Keeping the above principles in mind, we would now venture to analyze the evidence on record.
18. PW1 is the wife of the deceased. She deposed that her husband worked as welder and they got one son and one daughter. Her husband died about 1½ years back. She further deposed that on 08.07.2010 at about 8.00 PM, the deceased left the house to collect the amount due to him from a person of Hafizpet. He did not return. At about 11.00 PM, her husband made a telephone call that he was Hafizpet and would return in one hour. After one hour, when she made a call to her husband, the phone was switched off. Cell phone number of her husband is 9393382419. On 09.07.2010, she lodged Ex.P1 report with police. In the evening hours of 09.07.2010, they got information that her husband was killed and the dead body was shown in the septic 15 AAR & JS, JJ Crl.A.No.469/2013 tank of Hussain Akram's house in Hafizpet. She suspected the person from Hafizpet behind the incident.
19. PW.2 is a friend of the deceased. He deposed that on 08.07.2010, PW.1 informed him that her husband did not return home. They made phone call and the phone of the deceased remained switch off. He advised PW.1 to give police report. Accordingly, PW.1 lodged report with Madhapur police. He came to know that Md.Hussain and another killed the deceased and thrown the dead body in a septic tank. Police traced the dead body and brought to OGH. He saw the dead body at OGH.
20. PW.3 deposed that on 10.07.2010, at the instance of Madhapur Police, he brought a dead body out of a septic tank and after cleaning the dead body and completion of panchanama, the body was shifted to Osmania General Hospital.
21. The evidence of PW.4 is crucial. He is a panch witness for confession of the appellant/A1 and Ex.P6-scene of offence panchanama and Ex.P7-rough sketch. He deposed that on 08.07.2010, police called him and another person by name Ravi to Madhapur police station. On interrogation by the police, the appellants/A1 and A2 confessed that they killed the deceased, as he demanded money. When the police questioned about the place 16 AAR & JS, JJ Crl.A.No.469/2013 of death of the deceased, the appellants/A1 & A2 have shown a septic tank at Hafizpet. Police removed the dead body from the septic tank, prepared panchanama and recorded the confession in the police station. He further deposed that in pursuance of the confession of the appellant/A1, police also recovered a MO.6-bike and MO.1-gold chain from a Marwadi shop at Erragadda. During cross-examination, PW.4 stated as follows:-
"By the time I reached the police station, the other mediator Ravi was already there. There are no other mediators in the police station. CI informed me that the A1 & A2 confessed the crime and the A1 & A2 would show the body and they have to go recover the body. Only police interrogated the A1 & A2 in our presence. We did not enquire the A1 & A2 directly."
22. Here, it is apt to state that Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. The object behind declaring the confession made by an accused to a police officer as inadmissible is to avoid the possible danger of admitting false confessional statements obtained by coercion, torture or ill- treatment. The enactment of such a provision is to stop the malpractices of the police officers to extort confessions and avoid the peril of false confessions being admitted. Section 25 of Evidence Act is based upon grounds of public policy to protect the accused against the might of State and counterbalance the power 17 AAR & JS, JJ Crl.A.No.469/2013 imbalances against the accused and thus serve as a limitation to the power of the State, which is subject to misuse. Thus Section 25 of Evidence Act acts as an incentive for the police to conduct proper investigation into the matter. In the instant case, it is elicited from PW.4 in his cross-examination that by the time he reached the police station, the CI informed him that the appellants/A1 & A2 have already confessed about the crime before him and they have to go to recover the dead body and that PW.4 did not enquire the appellants/A1 & A2. Thus, the confession made by the appellants/A1 & A2 to the CI of police is hit by Section 25 of Evidence act and renders it inadmissible and cannot be proved against them. However, Section 27 of the Evidence Act postulates that a confessional statement made before a police officer or while an accused is in police custody, can be proved against him, if the same leads to discovery of an unknown fact or a new fact. In order to apply the exception postulated in Section 27 of the Evidence Act to the facts of the present case, it has to be seen, whether the confessional statement made by the appellants/A1 & A2 can be said to have led to the discovery of an unknown fact. A perusal of the evidence of PW.4 reveals that the factual position with regard to the recovery of the dead body and ornaments of the deceased from a Marwadi shop, which were 18 AAR & JS, JJ Crl.A.No.469/2013 shown to have been recovered, was already known to the police, much prior to such recovery. In this backdrop, the factual position that recovery of dead body and ornaments of the deceased from a Marwadi shop would be made by the police was a matter of common knowledge well before the confessional statement was made. In such circumstances, it cannot be said that confession of the appellants/A1 & A2 has resulted in the discovery of any new fact. On account of the fact that the confessional statement of the appellants/A1 & A2 leading to recovery of dead body and material objects, which is the main linking factor in the circumstantial evidence of prosecution version, being inadmissible in evidence, cannot be proved against the appellants/A1 & A2, we are of the considered view that the case of prosecution, as regards the alleged confession of the appellants/A1 & A2 leading to recovery, stands fully demolished.
23. PW.6 is the owner of the gold shop with whom the accused have allegedly pledged MO.1-gold chain. He deposed that when Police, Madhapur, came along with two persons complaining that the gold chain was committed theft, he gave back the gold chain. He further deposed that the appellant/A1 is the person that sold the gold chain and he gave Rs.22,000/- and that MO.1 is the gold chain. During cross-examination, he stated that sale of MO.1 took 19 AAR & JS, JJ Crl.A.No.469/2013 place about 18 to 20 months back. Here, it is apt to state that Rule 35 of the Criminal Rules of Practice prescribes a procedure as to how test identification parade of the property has to be conducted. Time and again, it has been held by various Hon'ble High Courts and the Hon'ble Apex Court that when the property is lodged before the Court, identification of the same should be done in the Court after calling for special identification marks of the property. When once the Test Identification Parade of property was not conducted in accordance with the procedure prescribed under Rule 35 of Criminal Rules of Practice, much credence cannot be given to the alleged identification of the said property by the witnesses. As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate, where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving, shall not be allowed to communicate with the witnesses not yet called in. In the instant case, no test identification parade was conducted to identify MO.1- gold chain and hence, alleged recovery of MO.1 from PW.6 does 20 AAR & JS, JJ Crl.A.No.469/2013 not establish that MO.1 belongs to the deceased. Therefore, this circumstance, in the chain of events projected by the prosecution, cannot be said to be proved. Even the presumption under Section 114 of Evidence Act cannot be invoked, when the very identification parade itself was not conducted, in accordance with Rule 35 of the Criminal Rules of Practice.
24. Further, in evaluating the circumstantial evidence available on record on different aspects of the case, we shall examine whether the appellants/A1 & A2 have developed bad-blood against the deceased to the extent of silencing him forever, that too, in a very horrendous manner. As per the case of prosecution, the motive for causing death of the deceased is that the deceased refused to lend money/provide finance to the appellants/A1 & A2. Mere refusal to lend money/provide finance to the appellants/A1 & A2, in our considered view, would not make them to take an extreme step of snatching away the life of the deceased. Normally, if a person approaches a financer for money and if the financer refuses to lend money, he would go to other financers or would search for other sources for getting money, but in any event, would not dare to kill a person and commit theft of ornaments from the dead body and get money by pledging them. Thus the motive on the part of the appellants/A1 & A2 for allegedly 21 AAR & JS, JJ Crl.A.No.469/2013 causing death of the deceased, as projected by the prosecution, is not appealing to our mind. Further, there is no evidence on record to establish that the appellants/A1 & A2 had animosity or grudge against the deceased or that the deceased ill-treated them at any point of time. On the other hand, there is a specific mention in the charge-sheet that when the deceased refused to lend money to the appellants/A1 & A2, an altercation took place and in that process, the appellant/A2 pounced on the deceased and pressed his neck, while the appellant/A1 held the legs of deceased and pressed his testicles. In an altercation, the possibility of provocation by either side cannot be completely ruled out. There is no evidence as to what actually transpired between the appellants/A1 & A2 and deceased on that fateful night. Under these circumstances, we hold that there was no sufficient material to conclude that the appellants/A1 & A2 had any motive to cause the subject death of the deceased.
25. Further, 'last seen theory' is important link in the chain of circumstances that would point towards the guilt of appellants/A1 & A2 with some certainty. Such theory permits the Court to shift the burden of proof to the appellants/A1 & A2 and they must offer reasonable explanation as to the cause of death of the deceased. In the instant case, the prosecution miserably failed to establish its 22 AAR & JS, JJ Crl.A.No.469/2013 case on the basis of last seen theory, as the chain of events that would require to be established is totally absent.
26. Further, it is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. In the instant case, PWs.10 and 11, who were declared hostile, deposed that two years back on the day of jagne- ki-raat, at about 12:30 mid night, while they along with their friends were having tea in their locality; they observed a police van coming and stopping near a septic tank; they did not actually see the police getting the dead body lifted the septic tank; and they did not see the appellants/A1 & A2 along with the police. The presence of PWs.10 and 11 at the place is probable. This piece of evidence of PWs.10 and 11 casts a doubt on the story of prosecution with regard to recovery of dead body from the septic tank in the presence of the appellants/A1 & A2, on their showing. Further, the other circumstances projected by the prosecution viz., PW.1 not deposing in her evidence with regard to missing of ornaments from the dead body of the deceased and non-
23 AAR & JS, JJ
Crl.A.No.469/2013
examination of LW9-Zahid Ali Mohammed, who stated that he has taken the SIM in his name but the same was being used by the appellant/A1, also affects the veracity of the prosecution case.
27. There are yet other circumstances which makes the prosecution case doubtful. The owner of the house from where the dead body of the deceased was recovered (Hussain Akram) was not examined before the Court. Obviously, he is the best person to certify the recovery of the dead body of the deceased from the septic tank of his house. Had he been examined before the Court, the prosecution could have derived some strength from his testimony with regard to recovery of the dead body of the deceased. Further, as per the evidence of PW.1, they got information that her husband was killed and dead body was recovered from the septic tank of Hussain Akram's house on 09.07.2010, whereas, as per the evidence of PW.13-investigating officer, the appellants/A1 and A2 were arrested on 10.07.2010 and at their instance, the dead body of the deceased was recovered. Thus, it is clear that the appellants/A1 and A2 were arrested much prior to recovery of dead body of the deceased and a false arrest and recovery were shown on 10.07.2010. All the above lacunas create a dent in the prosecution story.
24 AAR & JS, JJ
Crl.A.No.469/2013
28. The circumstances projected by the prosecution do not form a chain so complete to establish that in all human probability the subject death was caused by the appellants/A1 & A2 and none else. There is no evidence, much less cogent and convincing evidence, to arrive at a conclusion, which is consistent with the guilt of the appellants/A1 & A2. In view of the evidence placed on record, we are of the considered opinion the prosecution failed to prove the guilt of the appellants/A1 & A2 of the offences under Sections 302, 201, 379 r/w 34 of IPC, beyond all reasonable doubt. The Court below had not analyzed the evidence on record in correct perspective. The conclusions reached by the Court below in finding the appellants/A1 & A2 guilty of the offences punishable under Section 302, 201, 379 r/w 34 of IPC are not in tune with the evidence on record. The submissions advanced on behalf of the appellants/A1 & A2 merit consideration and the appeal deserves to be allowed.
29. In the result, the conviction and sentence recorded against the appellants/A1 & A2 of the offences under Sections 302, 201, 379 r/w 34 of IPC, vide judgment, dated 18.03.2013, passed in S.C.No.582 of 2010 by the learned III Additional Sessions Judge (FTC), Ranga Reddy District, is set aside. Consequently, the appellants/A1 & A2 are acquitted of the offences under Sections 25 AAR & JS, JJ Crl.A.No.469/2013 302, 201, 379 r/w 34 of IPC. The appellants/A1 & A2 shall be released forthwith, if they are not required in any other case. Fine amount, if any, paid by them shall be refunded to them.
30. The Criminal Appeal is, accordingly, allowed.
Miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed.
____________________ A.ABHISHEK REDDY, J ___________________ JUVVADI SRIDEVI, J 29th November, 2022 KSK