Telangana High Court
Kerkatta Pradeep Kumar A2 Hyd., vs State Of T.S., Rep. Pp. Hyd., on 18 December, 2023
Bench: K.Lakshman, P.Sree Sudha
HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
HONOURABLE SMT JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.461 of 2014
AND
CRIMINAL APPEAL No.318 of 2015
COMMON JUDGMENT:
(Per. Hon'ble Smt Justice P.Sree Sudha) These two criminal appeals are being disposed of by this common judgment since Crl.A.No.318 of 2015 filed by A-1 and Crl.A.No.461 of 2014 filed by A-2 are directed against the very same judgment of the learned III-Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.602 of 2010, dated 25.03.2014, whereby A-1 was convicted for the offence punishable under Section 302 read with Section 34 of I.P.C. and A-2 was convicted for the offence punishable under Section 302 of I.P.C. and they were sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/- each, in default, to suffer simple imprisonment for a period of three months each for the said offences. A-1 and A-2 further convicted and sentenced to undergo rigorous 2 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 imprisonment for a period of three years each and also to pay a fine of Rs.1,000/- each, in default, to suffer simple imprisonment for a period of two months each, for the offence punishable under Section 392 read with Section 34 of I.P.C. It is directed that the sentences imposed against them shall run concurrently.
2. The case of the prosecution, in brief, is that on 27.06.2009 at 9.00 P.M, one Dharani Ashok Kumar (P.W.1) lodged a written complaint (Ex.P1) before the Sub Inspector of Police, Chilkalaguda Police Station (P.W.9), stating that the marriage of his elder sister by name K.Saraswathi (hereinafter referred to as the deceased) was solemnized with one Mrutyunja Rao (P.W.2) about 25 years back and they were blessed with two children. On 27.06.2009 at about 6.00 P.M. when he was in the shop, he received a telephonic message stating that somebody killed his sister in her house and then he rushed to her house at Padmaraonagar and found his sister murdered by some unknown persons on the 3 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 1st floor of the house by causing severe stab injury. Basing on the said complaint, P.W.9 registered a case in Crime No. 408 of 2009 for the offences under Sections 302 and 392 read with Section 34 of I.P.C. Subsequently P.W.10-Inspector of Police, Chilkalaguda Police Station took up investigation. During the course of investigation, he examined P.W.1 and recorded his statement, visited the scene of offence and conducted scene of offence observation-cum-seizure panchanama in the presence of mediators P.W.6 and L.W.8, drafted rough sketch and got photographed the scene of offence and seized one pair of footwear and spectacles from the scene of offence and thereafter held inquest over the dead body of the deceased in the presence of P.W.8 and L.W.10. Subsequently, P.W.4-Doctor, who conducted autopsy over the dead body of the deceased, opined that the death was due to stab injury on chest. Thereafter, P.W.10 arrested A-1 and A-2 on 14.10.2009 at 11.15 P.M. during vehicle checking near Chilkalaguda cross roads, and on 4 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 interrogation the accused voluntarily confessed the commission of offence and their confessional statements were recorded in the presence of P.W.7 and L.W.12 and recovered gold bangles - 4 in number, gold ear-tops - 2 pairs and gold chain - 2 in number from the possession of A-1 and seized Hero Honda Glamour motorcycle from the possession of A-2 under cover of seizure panchanama and also recovered knife, hand glouses and empty jewellery boxes, which were used in the commission of offence under a cover of seizure panchanama before the mediators. Thereafter, P.W.10 seized one Sansui colour TV, VCD player, Music system and one Bajaj Chetak from the house of A-1 under a cover of seizure report in the presence of same mediators. On requisition of P.W.10, P.W.3-Magistrate conducted Test Identification Parade on 07.11.2009 at Central Prison, Chanchalguda, Hyderabad, wherein P.W.2 identified both the accused, while L.W.6 identified A-1 only. Thereafter, P.W.10, after completion of investigation, filed charge sheet 5 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 against the accused for the offences punishable under Sections 302 and 392 read with Section 34 of I.P.C.
3. The learned III-Additional Metropolitan Sessions Judge, Hyderabad, has framed the charges under Sections 302 of I.P.C. against A-2 and 302 read with Section 34 of I.P.C. against A-1 and also 392 read with Section 34 of I.P.C. against both the accused and that the accused pleaded not guilty and claimed to be tried.
4. The prosecution, in order to establish the said charges against the accused, examined P.Ws.1 to 10, got marked Exs.P1 to P13 and M.Os.1 to 16. On behalf of the accused, no witness was examined, but Ex.D1 was marked.
5. The learned III-Additional Metropolitan Sessions Judge, taking into consideration the oral and documentary evidence, found A-2 guilty of the offence punishable under Section 302 of I.P.C. and A-1 under Section 302 read with Section 34 of I.P.C. and also found A-1 and A-2 guilty of the offence punishable under Section 392 read with Section 34 of 6 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 I.P.C. and accordingly convicted and sentenced them as stated supra.
6. Aggrieved by the said conviction and sentence, the present appeals have been filed by A-1 and A-2.
7. Learned Counsel appearing on behalf of the appellant- A-1 submitted that that there is absolutely no eyewitness to the incident and the circumstantial evidence relied upon by the prosecution do not form a chain of events to connect the accused with the commission of crime. It is further submitted that the learned Judge erred in relying upon the alleged evidence of P.W.2, who had identified the accused in the Test Identification Parade, which was held five months after the incident. It is further submitted that the learned Judge failed to see that admittedly at the time of incident, P.W.2 was at his Kirana shop and as such there is no possibility for P.W.2 to see the accused and identified him in Test Identification Parade. P.W.2 further admitted that photos of accused were published in the newspaper and 7 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 Media and on 16.10.2009 the accused were shown to him and subsequently on 07.11.2009 he identified the accused and as such his identification has no evidentiary value. It is further submitted that learned Judge failed to see that in Ex.P1, there is no mention about the missing of jewels or its description and no identification parade was held with regard to the articles which is mandatory as per Rule 35 of Criminal Rules of Practice. It is further submitted that mere recovery of jewels at the instance of A-1 cannot connect him with the commission of offence of murder and that the incident took place on 27.06.2009 and recovery of jewels was on 14.10.2009 and thus the said recovery after four months of the incident does not connect A-1 with the commission of offence of murder. Therefore, it is prayed that the appellant/A-2 is liable to be acquitted for the offence with which he was charged.
8. Learned Counsel for the appellant/A2 submitted that the alleged confessional statements made by the accused 8 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 before police is not admissible in evidence and as such, conviction of the accused based on such confession is bad. It is further submitted that the learned Judge erred in placing reliance on the highly discrepant testimony of P.Ws.1 to 3. The learned Judge also erred in relying on the proceedings of the Test Identification Parade in identifying the accused, which is stage-managed. It is further submitted that since there is lack of linking evidence and since the entire case was based on the circumstantial evidence and confessional statements made by the accused, the prosecution has miserably failed to establish the guilt of the accused and therefore, the appellant/A-2 deserves to be acquitted by this Court.
9. Learned Assistant Public Prosecutor, on the other hand, contended that there is sufficient material to show that the appellants/A1 and A2 were responsible for the commission of offence and, therefore, the conviction and 9 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 sentence passed by the trial Court is justified and it does not warrant any interference by this Court.
10. Now the point that arises for consideration is - whether the prosecution could establish the charges framed against the appellants-A1 and A2 beyond all reasonable doubt?
11. P.W.1 is the brother of the deceased, who said to have lodged Ex.P1-report before police. P.W.2 is the husband of the deceased. P.W.3 is the learned Magistrate, who conducted Test Identification Parade. P.W.4 is the Doctor, who conducted post mortem examination over the dead body of the deceased and issued Ex.P4-P.M.E. report. P.W.5 is the son of P.W.2 and deceased. P.W.6 is a panch witness for Ex.P5-Scene of observation-cum-sizure Panchanama and recovery of M.Os.4 and 5. P.W.7 is the panch witness for Ex.P7-Confession-cum-seizure panchanama of A-1. P.W.8 is the panch witness for Inquest panchanama. P.W.9 is the Sub Inspector of Police, Chilkalguda Police Station, who registered Ex.P1-complaint given by P.W.1. P.W.10 is the 10 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 Inspector of police, Chilkalguda Police Station, who conducted investigation and filed charge sheet against the accused.
12. There is no direct evidence to substantiate the case of prosecution. However, the entire case solely rests upon circumstantial evidence. In a case of this nature, the chain of circumstances has to be examined so as to connect the accused with the commission of offence beyond all reasonable doubt.
13. P.W.1, the brother of the deceased, stated in his cross- examination that he went to the house of P.W.2 within one hour after receiving phone call and by the time he reached there, police present at the spot and the police enquired him. He does not remember whether police enquired P.W.2 in his presence. He along with his relatives went to the police station and presented Ex.P1-complaint and the police did not ask him with regard to the contents of Ex.P1. He further stated that he has not noticed P.W.2 before going to police 11 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 station or even before giving complaint to the police, he did not ask P.W.2 whether he has given any complaint to police. He further stated that he did not enquire anyone with regard to missing of valuables before lodging complaint. He further stated that he has not mentioned in Ex.P1 with regard to missing of valuables.
14. P.W.2, the husband of the deceased, stated in his evidence that he was running a kirana shop and daily his deceased wife comes to the shop at about 3.00 P.M. and then he goes to his house for having lunch and after taking rest for some time he will come back to the shop at about 5.00 P.M. He further stated that on 27.06.2009 he opened his kirana shop at about 9.00 A.M., and when his wife did not come to the shop to relieve him by 3.00 P.M., he telephoned to his residence, but there was no response and then he sent his worker Lakshman (L.W.5) to his house asking him to make a call through his wife and even after half-an-hour he has not received any telephonic call from his house. He 12 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 further stated that while he was proceeding to his house, on the way his worker met him and told that one woman was lying in the verandah of his house and a wooden plank was found on her body and then they went to his house on his scooter and found his wife lying on supine position and a wooden plank on her body and that he removed the wooden plank and found his wife dead. He further stated that the clothes in the almirah were thrown on the ground and the bedroom of his son (P.W.5) was opened and that he noticed missing of cash Rs.1,75,000/-, gold bangles-4 in number, two gold chains and two pairs of gold ear-rings from the house. He further stated that about five or six days prior to the incident, when he and his wife were in the house in the afternoon, he saw a person in the verandah near grill of his house and when they asked the said person, he replied that he came to the house to enquire whether any shop shutter is vacant for rent and that when his wife warned him, he got down and went away. Later, he also saw another person 13 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 who went along with the said person who came to the 1st floor of the house. The person who came to the 1st floor of the house stood at the grill was wearing glasses and another person who stood in front of the house was tall and that he can identify the said two persons. In the cross-examination, P.W.2 stated that he went to the police station at about 9.00 P.M. on that day and by the time he went to the police station, P.W.1 was already there. He lodged a written report before police and he does not remember as to whether he has informed P.W.1 with regard to missing of valuables from his house. He further stated that he has not informed to police about the descriptive particulars and weight of gold ornaments and police never called him to identify the gold ornaments and that no special identifying marks were present on M.Os.1 to 3 to show that it belonged to them. He does not remember whether the accused were shown by the police in Print media as well as in Television immediately after their arrest. He admitted that Saakshi Telugu daily 14 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 newspaper dated 16.10.2009 contain photographs of his deceased wife and A-1 and A-2. He stated that on 07.11.2009 he has identified A-1 and A-2 in the Test Identification Parade held by Magistrate at Chanchalguda Jail, Hyderabad. He further stated that his wife used to wear Mangalasuthram as well as gold bangles and finger ring, but he has not observed the same on the dead body of his wife. He further stated that he was present at the time of conducting inquest over the dead body of his deceased wife and when he asked the police about Mangalasuthram of his wife, police gave the same to him.
15. P.W.3 is the Magistrate who conducted Test Identification Parade of the accused on 07.11.2009 at about 3.30 P.M. at Central Prison, Chanchalguda, Hyderabad. He stated that P.W.2, husband of the deceased, identified A-1 and A-2 and L.W.6 Abdul Yousuf identified A-1 only. L.W.4 Satishkumar, who is the brother-in-law of the deceased, was absent for Test Identification Parade. Ex.P3 is the Test 15 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 Identification Parade proceedings. In the cross-examination, P.W.3 stated that exact place of conducting the Test Identification Parade was not mentioned in Ex.P3. He admitted that in Ex.P3-T.I. Parade proceedings, it was not mentioned that the witnesses were kept aside from the suspected persons till they were asked to come to the place of T.I Parade. He also admitted that in Ex.P3, it was not mentioned that he has taken the signatures of the suspects and non-suspects. He denied the suggestion that he has not conducted the T.I Parade proceedings as per rules.
16. P.W.4-Doctor, who conducted autopsy over the dead body of the deceased on 28.06.2009, stated that the cause of death of the deceased was due to stab injury on chest and that he issued Ex.P4--P.M.E. report.
17. P.W.5, who is the son of P.W.2 and deceased, stated in his evidence that on 27.06.2009 while he was in his office, he received a phone call at about 6.00 P.M. from one of his relatives informing him that his mother is not well and that 16 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 he went to his house at about 7.00 P.M. and found his mother died. He further stated that P.W.2 told him that somebody took away cash of Rs.1,75,000/- and gold ornaments weighing about 9 tolas and killed his mother.
18. P.W.6 is a panch witness for Ex.P5-Scene of observation-cum-seizure Panchanama and recovery of M.Os.4 and 5 and he stated that he signed on the said panchanama. He further stated that articles like M.Os.4 and 5 are available in the market and police did not prepare Ex.P6-rough sketch in his presence.
19. P.W.7 is a panch witness for Ex.P7-Confession-cum- seizure panchanama of A-1 and he stated that A-1 and A-2 confessed that they killed a lady at Chilkalaguda in her house and took away gold ornaments. He further stated that police seized four gold bangles, two gold chains and two pairs of ear-rings from the possession of A-1 and also seized one knife, one empty jewellery box and hand gloves at the instance of the accused at Narapally and thereafter at the 17 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 house of A-1 at Warasiguda, police seized one Television, one VCD player along with Music system, one Bajaj Chetak Scooter. In his cross-examination, he stated that police did not weigh the gold ornaments in his presence. He further stated that M.Os.7 to 10 were kept in a plastic cover by the police and it was not sealed and no chit was pasted to that plastic cover.
20. P.W.8 is a panch for Ex.P9-Inquest panchanama and he stated in his evidence that he acted as one of the panch witnesses for the inquest held over the dead body of the deceased and they opined that the deceased died due to injuries.
21. P.W.9 is the then Sub Inspector of Police, Chilkalguda Police Station, who registered Ex.P1-complaint given by P.W.1. In the cross-examination, he admitted that G.D. entry is kept blank in column No.3 © in Ex.P12-FIR. He stated that after going through the contents of Ex.P1, he felt that there was delay in lodging complaint, but he did not ask P.W.1 18 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 with regard to the delay. He admitted that in Column No.8 of Ex.P12, it was mentioned as 'No delay'. He further admitted that the FIR has reached the Court on 28.06.2009 at 3.30 A.M.
22. P.W.10 is the Inspector of police, Chilkalguda Police Station, who conducted investigation and filed charge sheet against the accused. He stated that while he along with his staff performing vehicle checking near Chilakalaguda cross roads, he apprehended A-1 and A-2 on 14.10.2009 at 11.15 A.M when they were travelling on Hero Honda Glamour motor bike along with stolen gold ornaments. In the cross- examination, he stated that he couldn't say under what provision of law, he was checking the vehicles on 14.10.2009. Ex.P1 does not reflect about the theft of cash or gold ornaments. He further stated that he does not know whether the incident was telecasted on 27.06.2009 at 6.00 P.M. in all the news channels in Hyderabad. He further stated that he did not mention about the presence of any gold ornaments 19 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 on the dead body of the deceased including Mangala Suthram. He admitted that P.Ws.2 and 5 were examined by him at their house. He further admitted that in the confessional statements of A-1 and A-2, the signatures of mediators were found at two places in the last page and he did not weigh the gold ornaments at the time of drafting confession. He stated that he did not mention the descriptive particulars of gold ornaments in the confessional statement of A-1 under Ex.A8.
23. The main contention of the learned Counsel for the appellants/accused is that Test Identification Parade was not conducted by P.W.3-Magistrate according to Criminal Rules of Practice. In fact, as per the case of prosecution, after receiving the complaint from P.W.1, no investigation was done by the investigating authorities till they found A-1 and A-2 during vehicle check on 14.10.2009. Learned Counsel further contented that as per Ex.P1, the deceased was killed 20 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 on 27.06.2009 and A-1 and A-2 were found with jewellery on 14.10.2009 i.e., nearly after four months.
24. P.W.2, husband of the deceased, stated in his evidence that he used to open his kirana shop at about 9.00 A.M and his deceased wife will come to the shop at 3.00 P.M. and then he will go to his house for having lunch and will return to the shop at about 5.00 P.M. This clearly shows that P.W.2 will sit in the shop from 9.00 A.M. to 3.00 P.M. and his deceased wife will sit in the shop from 3.00 P.M. to 5.00 P.M. He further stated that prior to the incident, when he along with his deceased wife was in the house in the afternoon hours, they saw one person in the verandah near grill at the first floor of his house and on enquiry he replied that he came to enquire whether any shop is vacant for rent, which is contrary to his earlier version. He also stated that he also saw another person who went along with the first person and that the first person was wearing glasses and the second person was tall. Except the said details, he has not given any 21 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 other descriptive particulars of the accused. When P.W.3- Magistrate recorded the statement of P.W.2, he improved his version and stated that the first person was aged about 55 years and another was aged about 26 years. He further stated that one person was black in colour and another person was of fair complexion. Thus, it is clear that there is clear variance in the descriptive particulars given by P.W.2 in his chief-examination and also in the statement before P.W.3-Magistrate, who conducted Test Identification Parade. Test Identification Parade was conducted on 07.11.2009 at about 3.30 P.M. nearly 4 ½ months after the date of offence. Moreover, P.W.2 clearly admitted that he has seen the news item under Ex.D1 in which photographs of his deceased wife, A-1 and A-2 were published.
25. Learned Counsel for the appellants relied upon a decision of the Supreme Court in Ravi @ Ravichandran vs. State represented by Inspector of Police 1, wherein it was 1 2008 (1) ALT (Crl.) 108 (SC) 22 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 held that Test Identification Parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographs published in the newspaper.
26. Admittedly, in this case, there is a delay in conducting Test Identification Parade. There is lot of variance in the descriptive particulars of the accused given by P.W.2. It is clear from the cross-examination of P.W.3-Magistrate that he has not taken all the precautions as per the provisions of Criminal Rules of Practice while conducting Test Identification Parade. A complete procedure needs to be followed for holding a Test Identification Parade. Therefore, the crucial evidence of the prosecution i.e., Test Identification Parade conducted by P.W.3 cannot be relied upon for basing conviction against the accused.
27. In the charge sheet, P.W.10-Inspector of Police stated that when the accused entered into the house of the 23 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 deceased, the brother-in-law of the deceased (L.W.4) met the accused and enquired about their visiting the house and that the accused informed him that they came to the house in connection with business purpose and on hearing their voice, deceased came out of the house and then A-2 thrown her on the floor and A-1 placed his hands over her mouth and that A-2 took knife from A-1 and stabbed over left side of stomach of the deceased, as a result of which the deceased died on the spot. However, L.W.4, one of the crucial witness in this case, was not examined by the prosecution for the reasons best known to them. Further, L.W.4 has not appeared before P.W.3-Magistrate for identification of the accused in the Test Identification Parade.
28. Admittedly, P.W.2 is the husband of the deceased. But Ex.P1-complaint was given by P.W.1, who is the brother of the deceased, when he came to know about the incident through phone. But, there was no communication between P.W.1 and P.W.2 either in the house or in the Police Station 24 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 before giving complaint to the police and as such missing of valuables and cash was not mentioned in Ex.P1-complaint at the earliest point of time. Though P.W.2 stated that he gave written report to the police, it was not on record. P.W.7- panch for confession-cum-seizure panchanama of A-1 in his cross-examination stated that police did not weigh the gold ornaments in his presence. P.W.10 also in his cross- examination stated that he did not weigh the gold ornaments at the time of drafting confession. Even P.W.2, husband of the deceased, has not stated in his evidence regarding the weight of gold ornaments lost by him. P.W.5, son of the deceased, in his evidence stated that P.W.2 told him that somebody took away cash of Rs.1,75,000/- along with gold ornaments from their house. But, under Ex.P7 and Ex.P7 (a)- Confession and seizure panchanama of A-1, the weight of gold ornaments was mentioned as 87 grams viz., gold bangles - 4 about 36 grams, gold chains - 2 about 42 grams and gold ear rings - 2 pairs about 9 grams. In the said 25 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 panchanama, the weight of gold ornaments was mentioned exactly in grams by P.W.10-Inspector of Police. It is not known as to how they came to know about the exact weight of gold ornaments without the assistance of appraiser. P.W.2 has not furnished any details regarding purchase of gold ornaments and he has not given any identification marks regarding M.Os.1 to 3. He simply stated in his evidence that gold bangles four in number, gold chains two in number and two pairs of gold ear tops were found missing in the almirah of his house. P.W.2 has not produced any bills regarding purchase of said gold ornaments.
29. Recovery of weapon used in the commission of offence basing on the confession of A-1 is concerned, P.W.10- Inspector of Police stated that he recovered M.O.7-Knife at the instance of A-1 at Jodumetla village near Narapally, which is at a distant place, and it is an open place accessible to the public. He admitted in his cross-examination that M.O.7 is available in the open market. As per the evidence 26 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 of P.W.4-Doctor, the deceased died due to stab injury on chest. But, M.O.7 was not sent to F.S.L. to know whether the injury caused to the deceased was with the same knife or not. P.W.10 stated that in Ex.P7, A-1 also confessed that with the stolen amount, he purchased M.Os.11 to M.O.13 i.e., one Sansui colour Television, One VCD player along with music system and one Bajaj Chetak scooter. However, P.W.10 stated in his cross-examination that he did not investigate into the ownership particulars of M.O.13 and also as to where M.Os.11 and 12 were purchased. He further stated that he did not mention the size of knife in Ex.P10.
30. Learned Counsel for the appellants relied upon a decision in Bheru Singh v. State of Rajasthan 2, wherein the Hon'ble Supreme Court opined as under:
"Section 25 of the Evidence Act not only bars proof of admission of an offence, but also of other incriminating facts relating to the offence. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against the accused.2
(1994) 2 SCC 467 27 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 According to the Apex Court, Section 25 of the Evidence Act is based on the ground of public policy. However, the only part of the confession statement that can be read against the accused is the one permissible under Section 27 of the Evidence Act. The 'fact discovered' as envisaged under Section 27 embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
31. In view of the reasons aforementioned, we are of the opinion that there are several lacunae in the investigation conducted by P.W.10 and even in the Test Identification Parade, P.W.3 has not followed the procedure properly. Further, there is variance in the descriptive particulars of the accused given by P.W.2. In fact, four months after the incident, the accused were arrested during the vehicle check by P.W.10 and that it is unbelievable to infer that still the accused were keeping the gold ornaments with them as alleged by the prosecution. So also, P.W.10 did not weigh the gold ornaments seized from the possession of the 28 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 accused at any point of time. Further, in Ex.P1-complaint, P.W.1, brother of the deceased, did not mention with regard to missing of gold ornaments in the house of the deceased. Though P.W.2, husband of the deceased, noticed about the loss of gold ornaments, he has not given any complaint to the police. It is evident from the evidence of P.W.10 that M.O.7-Knife recovered at the instance of A-1 was not sent to the Forensic Science Laboratory for expert opinion. The trial Court has failed to appreciate the evidence on record in right perspective and erred in convicting the appellants/A-1 and A-2. Therefore, we have no hesitation to hold that the prosecution has miserably failed to establish the guilt of appellants/A1 and A-2 for the offences with which they were charged beyond all reasonable doubt and as such they are entitled for acquittal.
32. In the result, both the Criminal Appeals are allowed. The conviction and sentence recorded against the appellants/A-1 and A-2 in the impugned judgment, dated 29 KL, J & PSS, J Crl.A.Nos.461 of 2014&318 of 2015 25.03.2014 passed in S.C.No.602 of 2010 on the file of the III- Additional Metropolitan Sessions Judge, Hyderabad, for the offences punishable under Sections 302 of I.P.C against A-2, 302 read with Section 34 of I.P.C. against A-1 and 392 read with Section 34 of I.P.C against A-1 and A-2 are hereby set aside and they are acquitted of the said offences. The bail bonds of appellants/A-1 and A-2 are hereby cancelled and their sureties are discharged and they shall be set at liberty forthwith, if they are not otherwise required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. M.O.1 to M.O.3-Gold ornaments shall be confiscated to the Government as unclaimed property.
Pending miscellaneous petitions, if any, shall stand closed.
_______________________ JUSTICE K.LAKSHMAN ________________________ JUSTICE P.SREE SUDHA 18.12.2023 Gsn