HON'BLE DR. JUSTICE G. RADHA RANI
AND
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.40 of 2014
JUDGMENT:(Per GAC, J)
This appeal is arising out of the judgment dated 07.08.2013
in S.C.No.765 of 2012 on the file of the Additional Metropolitan
Sessions Judge, Cyberabad.
2. The appellant is the sole accused. A charge sheet was filed
against the accused for the offence punishable under Section 302 of
IPC. The trial Court, after considering the evidence on record,
convicted the appellant under Section 235(2) of Cr.P.C. for the
offence punishable under Section 302 of IPC and sentenced him to
undergo imprisonment for life and to pay a fine of Rs.1000/-, and
in default of payment of fine, to undergo simple imprisonment for
a period of one month.
3. The brief case of the prosecution is that 15 days prior to the
incident, the deceased and accused went to the dairy/poultry farm
of PW-1 to work as labourers and lived in the tin shed of the
2
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
dairy/poultry farm. On the date of incident i.e. 04.04.2012, at 7.30
p.m., the accused and the deceased, in drunken state, were
quarrelling with each other, for which, PW-1 admonished them and
went to his house. On the next day, at about 04.30 a.m., PW-3,
who is the father of PW-1, visited the dairy/poultry farm, found the
accused not available in the shed but found the dead body of the
deceased in sleeping position and on that he made a call to PW-1,
about the incident. On that, PW-1 rushed to the dairy/poultry farm,
noticed the dead body and preferred report/Ex.P-1 to the Station
House Officer, Maheshwaram Police Station, for which, PW-12
registered a case in Crime No.77 of 2005, for the offence
punishable under Section 302 of IPC and issued FIRs to all the
concerned. The original copy of the FIR received by the Court is
Ex.P-16. Further, PW-11/ Circle Inspector of Police conducted
investigation in this case.
4. During the course of investigation, PW-11/investigating
officer conducted inquest panchanama over the dead body of
deceased in the presence of panchayatdars prepared the crime
detail form and later forwarded the dead body of the deceased for
3
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
postmortem examination. Further, he recorded the statements of
the prosecution witnesses and collected M.Os.1 to 3 from the scene
of offence.
5. It is pertinent to mention that PW-8/Tahsildar recorded the
extra-judicial confession statement of the accused, wherein, the
accused was said to be produced before her by PW-11. Later, the
accused was produced along with the extra-judicial confession
statement before the PW-11/investigating officer, who in turn,
effected arrest of the accused and later produced the accused before
the Court for judicial remand.
6. The Doctor/PW-9 who conducted postmortem examination
over the dead body of the deceased, found 12 external injuries on
the dead body of the deceased and issued portmortem examination
report/Ex.P-12. Further, basing on the FSL report i.e. Ex.P-13, he
also gave final opinion under Ex.P-14 in which he opined that the
cause of the death of the deceased was due to head injury,
associated with other injuries and no poisonous substance was
found in the viscera. After receiving the postmortem report of the
4
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
deceased and on completion of the investigation, the investigating
officer filed a charge sheet against the accused for the offence
punishable under Section 302 of IPC.
7. During the course of trial, a charge was framed against the
accused for the offence punishable under Section 302 of IPC, read
over and explained to him, for which, he pleaded not guilty and
claimed to be tried.
8. On behalf of the prosecution, PWs.1 to 13 were examined
and Exs.P-1 to P-16 and M.Os.1 to 6 are marked. The accused was
examined under Section 313 Cr.P.C. and he denied the
incriminating evidence of the prosecution and pleaded not guilty
for the offence charged.
9. It is relevant to mention the relationships between the
witnesses for better appreciation of the facts. The deceased is
alleged to be the 2nd wife of the accused. PW-1 is the owner of the
dairy/poultry farm in which, the deceased and accused were
working and residing together, since 15 days prior to the offence.
PW-2 is the daughter of the deceased, who was born through her
5
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
first husband. PW-3 is the father of PW-1. PW-4 is the
Photographer, who took the photographs of the deceased, near the
scene of offence, at the instance of PW-11/investigating officer,
which are marked as Exs.P-2 to P-4. PW-5 is the niece of the
accused, who turned hostile and Ex.P-5 is her statement recorded
by the Police under Section 161 Cr.P.C. PW-6 is the panchayatdar
for scene of offence, rough sketch and inquest panchanama of the
deceased, which are EXs.P-6 to P-8 respectively. It is relevant to
mention that PW-6 is the mother and wife of PWs.1 and 3
respectively. M.Os.1 to 3 are alleged to have been seized from the
scene of offence i.e. bed sheet, wooden stick and the sickle, which
are alleged to contain the blood stains of the deceased. PW-7 is the
panchayatdar to the confession of the accused, to the Police, in the
Police Station and the confession statement is marked as Ex.P-9. It
is relevant to mention that M.Os.4 to 6/the cloths of the accused
and a stick were shown as recoveries pursuant to the confession of
the accused.
10. It is important to note that confession to the Police is hit by
Section 25 of Indian Evidence Act. The evidence of PW-7 clearly
6
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
disclose that on 09.04.2012 at 2.00 p.m., he along with one
A.Subhash were called to Police Station and at that time, the
accused was in the custody of the Police and on interrogation, the
accused admitted his guilt about commission of the offence by
using a sickle and stick and pursuant to the confession, the material
objects were seized by the Police under Ex.P-10. In the cross-
examination, PW-7 specifically stated that he cannot identify the
material objects, due to lapse of time.
11. PW-8 is the Tahsildar and her evidence disclose that on
09.04.2012 at about 11.00 a.m., PW-10 produced the accused
before her and the accused confessed his guilt of committing the
murder of the deceased which was recorded by VRO/Papaiah i.e.,
Ex.P-11. Later, the accused was handed over to the Police. In the
cross-examination, PW-8 testified that the Police came to her
office, after the arrival of the accused and later the accused was
handed over to the Police.
12. As already stated supra, PW-9 is the Doctor who conducted
autopsy over the dead body of deceased, forwarded the viscera to
7
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
RFSL and after receiving the FSL report i.e. Ex.P-13, issued final
opinion as to the cause of the death of the deceased.
13. PW-10 is the person who is said to have produced the
accused before PW-8 and on that, PW-8 recorded the extra-judicial
confession statement of the accused. PW-10 turned hostile and the
161 Cr.P.C. statement of PW-10 is marked as Ex.P-15.
14. PWs.11 to 13 are the Police officials in this case. PW-12 is
the SI who registered the case, PW-11 is the investigating officer
who conducted the entire investigation and PW-13 is another
Inspector of Police who received FSL report and Post Mortem
Examination report from the Doctor, verified the investigation and
laid charge sheet against the accused.
15. Heard the legal aid counsel Sri Mettu Goverdhan Reddy for
the appellant and the learned Additional Public Prosecutor.
Perused the record.
16. It is urged by the learned counsel for the appellant that there
is no direct eye witness to the incident and the trial Court convicted
8
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
the appellant basing on the testimonies of PWs.1 to 3 and solely on
the extra-judicial confession statement of the accused, recorded by
PW-8. It is further contended by the counsel that the trial Court
ought to have acquitted the accused, as the chain of events did not
form a circle and there are missing links in the chain of events,
which is the most important ingredient in a case of circumstantial
evidence, and therefore, prayed to set aside the conviction passed
by the Court below.
17. In order to support his contentions, the learned Counsel for
the appellant (Legal Aid Counsel Mr.M.Goverdhan Reddy) relied
on the judgment of Hon'ble Supreme Court in Boya Akuthota
Nagaraju Vs. State rep. by Public Prosecutor, High Court of
A.P.1, wherein, their Lordships have held as under:
"Extra-judicial confessions, if inspires confidence of
Court and true version of the accused is mentioned on
extra-judicial confession, conviction can be recorded
if corroborated by other circumstances. But, extra-
judicial confession itself alone cannot form the basis
for conviction and such conviction is illegal. Before
touching the evidentiary value of the extra-judicial
confession, the Court must look into various
circumstances like prior acquaintance with the
1
(2018) 2 ALT (Cri.) 290 (DB)
9
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
persons with whom the accused allegedly gave
statement and whether it is voluntary in nature."
18. On the other hand, the learned Public Prosecutor contended
that the prosecution has proved the guilt of the appellant beyond
reasonable doubt and prayed to confirm the judgment of the trial
Court.
19. Now, the point for determination is;
Whether the trial Court is correct in convicting the
accused/appellant for the offence punishable under
Section 302 of IPC and whether the prosecution has
proved the guilt of the appellant beyond reasonable
doubt for the said offence?
20. The criminal law was set into motion basing on the
information given by PW-1, who is the owner of the dairy/poultry
farm. The report given by him is Ex.P-1. It is important to
mention that the entire case of prosecution rests on circumstantial
evidence as none of the witnesses witnessed the alleged murder
that is said to have been committed by the appellant.
21. In order to prove an offence punishable under Section 302 of
IPC, it is for the prosecution to prove that the death of the deceased
is caused by the accused maliciously, with a specific motive, the
10
Dr.GRR, J & GAC, J
Crl.A.No.40 of 2014
bodily injury caused by the offender is within the knowledge that
such an injury might cause the death of the deceased and further,
the injury inflicted is sufficient to cause the death of the deceased.
22. The evidence of PW-9/Doctor is crucial to prove whether the
death of the deceased is homicidal or natural. His evidence
discloses that on 05.04.2012 at about 3.30 p.m., he received
requisition from Maheshwaram Police Station, to conduct
postmortem examination on the dead body of the deceased, named
Bhagyamma. Accordingly, she conducted autopsy over the dead
body of the deceased and found the following external injuries:
1.
Abrasion 3 X 2 cm on midline of forehead.
2. Abrasion 3 X 2 cm on the lower part of left cheek near mandibular area.
3. Lacerated wound 3 X 1 cm into scalp deep on the left occipital area of the head.
4. Abrasion 2 X 2 cm on the left side back of the neck.
5. Abrasion 5 X 2 cm on the back side of left upper chest.
6. Contusion 22 X 20 cm on the back side of the chest.
7. Contusion 22 X 20 cm on the left buttock.
8. Contusion 30 X 10 cm on back side of left arm and fore arm.
9. Abrasion 3 X 2 cm on the back side of middle 3rd of left fore arm (all the above injuries are red and fresh) 11 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014
10. Scalp contusion 6 X 6 cm on the left perital area, contusions 8 X 6 cm on the left occipital area and another contusion 4 X 3 cm on the left temporal area with temporalis. Muscle contused reddish blue in colour.
11. Subdural hemohrages over brain.
12. 1st to 7th ribs fractures at mid axillary line on the right side of the chest. 4th to 12th ribs fractures at the posterior axillary line on the left side of the chest with surrounding inter-coaster muscle lines contused.
All the injuries are ante-mortem in nature.
23. The postmortem report of the deceased is Ex.P-12. Her evidence further disclose that she preserved the viscera of the deceased and handed over the same to the Police in order to forward the same to Regional Forensic Science Laboratory (RFSL) for chemical analysis. Ex.P-13 is the RFSL report which disclose that there is no poisonous substance found in the viscera of the deceased. Ex.P-15 is the final opinion given by her, it is opined that the cause of the death of the deceased is due to head injury associated with other injuries.
24. On perusal of Exs.P-12 to P-14, it can be construed that the death of the deceased is a homicide and it is not a natural one. The cardinal principles of the criminal justice system are that: 12
Dr.GRR, J & GAC, J Crl.A.No.40 of 2014
1. The burden is always on the prosecution to prove the guilt of the accused.
2. Accused shall be presumed to be innocent till the guilt is proved.
25. Basing on the said cardinal principles, it is for the prosecution to prove that the appellant has committed the murder of the deceased. The evidence of PWs.1 to 3 only disclose that the deceased and the accused are living together as husband and wife and they came to the dairy/poultry farm of PW-1 prior to 15 days of the incident and were staying in the tin shed. Further, the evidence of PW-1 disclose that accused and deceased were in drunken state on 04.04.2012 and were quarrelling with each other. Except that, there is no other evidence on record to prove that the appellant has committed the murder of the deceased. There is no direct witness in this case and the entire case rests upon circumstantial evidence. The trial Court entirely relied on the documentary evidence i.e. Ex.P-11/the alleged extra-judicial confession statement of the accused recorded by PW-8. The evidence of PW-8 disclose that PW-10 produced the accused 13 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014 before her and at his instance, the VRO/Papaiah recorded the extra- judicial confession statement and she handed over the accused and the statement/Ex.P-11 to the Police. But, PW-11 turned hostile and did not support the case of the prosecution and denied the fact that he produced the accused before PW-8. For the reasons best known to the prosecution, the person who recorded the extra-judicial confessions statement of the accused was not examined before the Court i.e. the VRO/Papaiah to corroborate the evidence of PW-8. Therefore, the finding of the trial Court that the extra-judicial confession if true and voluntary, can be relied upon by the Court to convict the accused for commission of offence, is not at all tenable. Further, the extra-judicial confession statement is a weak piece of evidence.
26. It is for the prosecution to prove that the crime objects are connected with that of the accused and pursuant to the confession, the crime objects were recovered. The evidence of PW-11/ investigating officer disclose that the material objects seized were sent to Forensic Science Laboratory for examination but for the reasons best known to the prosecution, the said Forensic Science 14 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014 Laboratory report was not marked before the Court, to prove that the material objects contain the blood stains of the deceased which are also found on the clothes of the accused in order to connect the crime with that of the accused. M.Os.2 and 3 are the stick and sickle seized from the scene of offence. M.O.6 is the stick seized pursuant to the confession of the accused. As per the evidence of the Doctor, all the external injuries found on the dead body of the deceased can be caused by M.Os.2, 3 and 6. Further Ex.P-11/the extra-judicial confession statement of the accused disclose only of using two types of weapons on the deceased by the accused. The prosecution failed to prove that three types of weapons are used by the sole accused in order to cause the death of the deceased.
27. In the judgment of Hon'ble Supreme Court in the case of Sudhakar @ Sudershan Vs. State rep. by Inspector of Police, Srirangam Police Station, Tiruchi2, it was held in para 17 as under:
"Then, next comes to the question what is the difference between a related witness and an interested witness ? The plea of "interested witness", "related witness" has been sufficiently explained by this Court 2 (2018) 5 SCC 435 15 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014 that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand, PWs.1 and 5 were not only "related witnesses" but also "interested witnesses" as they had pecuniary interest in getting the accused punished. (refer State of U.P. vs. Kishan Pal3). As the prosecution has relied upon the evidence of "interested witnesses", it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."
28. Admittedly, PW-2 is the daughter of the deceased, who was born to the deceased through her first husband. It is testified by PW-2 that her father died, prior to the death of her mother and she does not know whether the accused married her mother or not? but they were living under the same roof as wife and husband. Therefore, PW-2 can be treated as interested witness though there is not much incriminating evidence, against the accused. The aforesaid judgment of the Apex Court is squarely applicable to the facts of the present case.
3 (2008) 16 SCC 73 = (2010) 4 SCC (Cri) 182 16 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014
29. As per the evidence of PW-7, the accused has confessed before the Police, in the Police Station and the confession statement is Ex.P-9, which is hit by Section 25 of the Indian Evidence Act. The said Section envisages that no confession made to a Police officer shall be proved against the person accused of any offence.
30. Further, as per Section 27 of the Indian Evidence Act, when any fact is deposed to as discovered in consequence of information received from the person accused of any offence, in the custody of the Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus, as per the said provision, it is only the information which has to be taken into consideration as to the discovery of the fact. In the present case, it is the case of the Prosecution to prove that pursuant to the confession of accused, M.Os.4 to 6 were discovered. Admittedly, the said material objects were marked through PW-7, who testified that he does not remember the description of the material objects. 17
Dr.GRR, J & GAC, J Crl.A.No.40 of 2014 Further, PW-10 turned hostile and therefore, not much weightage can be given to the evidence of PW-8.
31. In State of U.P. Vs. Dr.Ravindra Prakash Mittal4, the Apex Court held as under :
"The essential ingredients to prove guilt of an accused person by circumstantial evidence are: (1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature; (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.
.....As pointed out supra, there is no direct evidence to connect the respondent with this offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:
(1) The circumstances from which the conclusion is drawn should be fully proved; (2) the circumstances should be conclusive in nature;
(3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence;
(4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."4
(1992) 3 SCC 300 18 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014
32. As already discussed supra, there is no direct evidence on record and entire case is based on circumstantial evidence. Further, the conviction of the trial Court is based on the extra- judicial confession statement which does not have any corroboration as PW-10 has turned hostile, and the chain of events are not connected with each other.
33. The other witnesses in this case are the Photographer, panchayatdars for scene of offence and inquest i.e. PWs.4 and 6 respectively and their evidence is no way helpful to the prosecution to prove the guilt of the accused in any manner. The present case is based only on the circumstantial evidence and the prosecution has failed to prove the complete chain of circumstances, connecting the events so as to convict the appellant, therefore, the conviction is bad in the eye of law. In a case of homicide, it is for the prosecution to prove that the accused has inflicted injuries on the deceased with M.Os.2, 3 and 6 i.e. stick, sickle and stick, which ultimately resulted in the death of the deceased, but the prosecution failed to explain as to how three weapons are implicated in the 19 Dr.GRR, J & GAC, J Crl.A.No.40 of 2014 case, to connect the weapons with that of the crime, by the other accused.
34. It is relevant to mention that the accused has specifically stated in his examination under Section 313 Cr.P.C. that on the date of offence/incident he went to Shamshabad for collecting amount and returned on the next day and was not aware as to who has committed the murder of the deceased and that PW-1 has not paid three months salary to him.
35. The conviction of the trial Court is entirely based on the extra-judicial confession. In view of the above discussion, it can be safely concluded that the extra-judicial confession statement of the accused is not true and voluntary, and therefore, it can be termed as 'tainted evidence'. Furthermore, there is no corroborating evidence to the said extra-judicial confession statement and therefore, it can be held that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Hence, the appellant is entitled for benefit of doubt and the judgment of the trial court deserves to be set aside. 20
Dr.GRR, J & GAC, J Crl.A.No.40 of 2014
36. In the result, the Criminal Appeal is allowed. The appellant is found not guilty for the offence punishable under Section 302 of IPC, and accordingly, the conviction and sentence imposed on the appellant vide Judgment dated 07.08.2013 in S.C.No.765 of 2012 on the file of Additional Metropolitan Sessions Judge, Cyberabad, is hereby set aside and the appellant is acquitted for the charged offence. Consequently, the Superintendent, Central Prison, Cherlapally, is directed to release the appellant forthwith, if he is not required in any other case. M.Os.1 to 6 shall be destroyed after the expiry of the appeal time.
Pending miscellaneous applications, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J ________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 20.01.2023 N.B:
Judgment be forthwith communicated to the jail authorities concerned.
(b/o) ajr