Andhra Pradesh High Court - Amravati

D.Jagadish Jagga, Chittoor Dt., vs The State Of Ap., Rep Pp., on 15 December, 2022

                                  1



     THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                AND
     HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI

                Criminal Appeal No. 29 of 2016

JUDGMENT: (Per Hon'ble Sri Justice C.Praveen Kumar)

1)    Heard    Sri.   Raja    Reddy    Koneti,    learned   Counsel

appearing for the Appellant/Accused No. 1 and learned

Additional Public Prosecutor, appearing for the State.


2)    Accused No. 1 is the Appellant herein. Originally,

Accused Nos.1 and 2 were tried for the charges punishable

under Sections 376, 302 and 201 of Indian Penal Code

['I.P.C.']. By its Judgment, dated 08.12.2015, the learned

Sessions Judge, acquitted Accused No. 2 of all the charges

and also Accused No.1 for the offence punishable under

Section 376 I.P.C., but, however, convicted him for the

offences punishable under Sections 302 and 201 I.P.C. and

sentenced him to suffer imprisonment for life and to pay fine

of Rs.200/- in default to undergo simple imprisonment for

one month. Accused No.1 was also sentenced to undergo

rigorous imprisonment for seven years and to pay fine of

Rs.200/- in default to undergo simple imprisonment for one
                                  2



month for the offence punishable under Section 201 I.P.C.

The substantive sentences were directed to run concurrently.


3)      The facts, in issue, are as under:


 i)     PW5 is the mother, while PW6 is the Sister of one

        Gayathri ['deceased']. It is said that, the deceased was

        aged about 14 years as on the date of incident.


 ii)    PW6, who is the elder sister of the deceased, fell in love

        with one Ashok, milk van driver, and married him much

        against the wish of her mother [PW5]. She started living

        separately in Chittoor. Neighbours informed PW5 that

        the deceased may also marry someone without her

        consent and requested PW5 to keep a watch on her. On

        one occasion, the deceased was having a conversation

        with a stranger through cell phone. PW5 took the cell

        phone and heard a male voice talking with her daughter

        [deceased]. PW5 informed the same to her husband,

        who beat the deceased and broke the cell phone.


 iii)   On the next day afternoon, the deceased informing her

        parents that she wants to go for nature's call, went out

        of the house, but did not return home. PW5 and her
                                3



      husband searched in the surrounding areas, but in

      vain. Thereafter, PW6 was enquired who informed that

      the deceased did not come to her house. About seven

      [07] days later, PW6 informed PW5 that the deceased is

      with one Jagadeesh and they are living happily. As both

      her daughters left with boys of their choice and without

      their consent, PW5 got vexed with them and left to her

      mother's house in Karnataka State along with her

      husband.


iv)   About fifteen [15] days later, PW5 enquired PW6, who

      informed that the deceased was living happily and that

      there is no need to pursue further. Two [02] months

      thereafter, PW5 called PW6, who told her that there was

      no communication from the deceased since last fifteen

      [15] days.


v)    While so, on 13.07.2011 at about 9.00 A.M., PW2, who

      is a resident of Kattamanchi, Chittoor, and was working

      as Spare Parts In-charge in JCB Gold Fields Stores,

      Chittoor, went to barren fields of PW1 for natures call.

      There was a dilapidated well in the said fields. He heard
                                4



      noise of birds near the well and out of curiosity; went

      there and saw legs of human body in the well. He made

      a call to PW1, who is running a Dental Clinic at Police

      Complex, Chittoor. On receiving the said phone call,

      PW1 came near to the well, saw the body and

      immediately went to the Police Station while requesting

      PW2 to be at the scene. Basing on the report given by

      PW1, a case in Crime No. 88 of 2011 came to be

      registered for the offences punishable under Sections

      302 and 201 I.P.C. Ex.P19 is the F.I.R.


vi)   At about 12.00 Noon, PW1 came to the spot along with

      the police. They noticed the body as that of a female tied

      with nylon rope and mouth was closed with chunni.

      Ex.P2 is the photographs taken at the scene. Thereafter,

      dog squad was pressed into service, which proceeded

      upto Chengalarayamitta and stopped near the shop of

      PW4.


vii) PW20 - the Inspector of Police, who registered the crime,

      conducted inquest over the dead body between 1.30 to

      4.30 P.M. and recorded the statements of PW1, PW2
                                   5



      and others. Ex.P5 is the inquest report. He also

      prepared a rough sketch of the scene, which is marked

      as Ex.P20. He also got prepared an observation report of

      the scene of offence in the presence of mediators, which

      is   marked    as    Ex.P6.      After   conducting    inquest

      proceedings,   the   body       was   sent   for   post-mortem

      examination.


viii) PW17, who was working as Civil Assistant Surgeon,

      Government Headquarters Hospital, Chittoor, conducted

      autopsy over the dead body and issued Ex.P14 - post-

      mortem certificate and Ex.P15 is the final opinion given.

      After conducting post-mortem examination, PC-4038

      handed over the clothes of the deceased to PW20, which

      was seized under Ex.P21.


ix)   On 22.10.2011, PW2, PW4 and PW5 along with her

      husband went to One Town Police Station, Chittoor,

      where they identified the photo as that of the deceased.

      Ex.P2 is the photographs, which were identified as that

      of the deceased.
                               6



x)   At this stage, it is also to be noted that, on 30.10.2011

     i.e., 3 ½ months after the deceased left the house,

     Accused No.1 and 2 are alleged to have gone to PW9,

     who was working as V.R.O. Kattamanchi, and made a

     confession about the commission of the offence. Ex.P7 is

     the statement/confession of Accused No. 1 and 2.

     Thereafter, he took Accused No. 1 and 2 to the Police

     Station and handed over them to the Police. After

     affecting their arrest, he recorded the confessional

     statements,   which   lead   to   seizure   of   cell   phone

     belonging to Accused No. 1 and 2 along with SIM cards.

     Accused No.1 lead them to the house of one Balaji

     [PW11] to whom he sold the cell phone of the deceased

     and also the house of PW10, to whom he sold the

     motorcycle used in the commission of offence. Accused

     No. 1 also confessed the place of purchase of rope and,

     accordingly, he took them to the shop of PW12 situated

     at Seshapeeran Street, Chittoor. After examining all the

     witnesses and collecting all the necessary documents,

     PW20 filed a charge-sheet, which was taken on file as
                                  7



     P.R.C. No. 05 of 2012 on the file of IV Additional

     Judicial Magistrate of First Class, Chittoor.


4)   On appearance of the accused, copies of documents as

required under Section 207 Cr.P.C., came to be furnished.

Since the case is triable by Court of Sessions, the same was

committed to Court of Sessions under Section 209 Cr.P.C.

Basing on the material available on record, charges as

referred to above came to be framed, read over and explained

to the Accused, to which, the Accused pleaded not guilty and

claimed to be tried.


5)   In support of its case, the prosecution examined PW1 to

PW20 and got marked Ex.P1 to Ex.P21, beside marking M.O.1

to M.O.19. After completion of prosecution evidence, the

Accused were examined under Section 313 Cr.P.C. with

reference   to   the   incriminating   circumstances   appearing

against them in the evidence of prosecution witnesses, to

which they denied, however, no evidence was adduced in

support of their plea.
                               8



6)   Relying upon the circumstances of (i) Accused being

'last seen' in the company of the deceased; (ii) the extra-

judicial confession made before PW9; (iii) recoveries made and

(iv) the motive; the learned Sessions Judge convicted Accused

No.1 alone. Against this conviction and sentence, the present

Appeal came to be filed by Accused No.1.


7)   (i) Sri. Raja Reddy Koneti, learned Counsel appearing for

the Appellant/Accused No.1, mainly submits that, there are

no eye witnesses to the incident and the case rests on

circumstantial evidence. According to him, in a case arising

out of circumstantial evidence, the prosecution has to prove

each of the circumstance relied upon by it and the

circumstances so proved should form a chain of events

connecting the accused with the crime. According to him, the

circumstances relied upon by the prosecution are not proved

and even if some of them are proved, they do not form a chain

of events connecting the accused with the crime.


8)   On the other hand, Sri. S. Dushyanth Reddy, learned

Additional Public Prosecutor appearing for the State, opposed

the same contending that, though there are no eye witnesses
                                9



to the incident, but 'motive' and 'extra-judicial confession'

which are proved beyond reasonable doubt, are sufficient to

base a conviction.


9)    The point that arises for consideration is, whether the

prosecution was able to prove the guilt of the Accused beyond

reasonable doubt?


10)   As seen from the record, the prosecution mainly relied

upon the evidence of PW5 and PW6, to speak about the last

seen theory; Accused No. 1 and deceased staying for

sometime in the house of PW3 and LW14; the extra-judicial

confession made by the Accused before PW9; the evidence of

PW12 to show that nylon rope was purchased by the Accused

No. 1 from the shop of PW12; sale of motorcycle by Accused

No.1 to PW10 and recovery of cell phone belonging to the

deceased from PW11.


11)   The fact that, there are no eye witnesses to the incident

is not in dispute. It is a case arising out of circumstantial

evidence. The five golden principles as laid down by Apex
                                                10



Court in the case of Sharad Birdhichand Sarda V. State of

Maharashtra1 are as follows:


               "A close analysis of this decision would show that
               the following conditions must be fulfilled before a
               case against an accused can be said to be fully
               established:

                       (1)   the    circumstances     from    which
                       the conclusion of guilt is to be drawn should
                       be fully established.

                       It may be noted here that this Court indicated
                       that the circumstances concerned 'must or
                       should' and not 'may be' established. There
                       is not only a grammatical but a legal
                       distinction between 'may be proved' and
                       'must be or should be proved' as was held by
                       this Court in Shivaji Sahabrao Bobade &
                       Anr. v. State of Maharashtra, (1973) 2
                       SCC 793, where the following observations
                       were made:

                       "Certainly, it is a primary principle that the
                       accused must be and not merely may be
                       guilty before a court can convict and the
                       mental distance between 'may be' and 'must
                       be' is long and divides vague conjectures
                       from sure conclusions."

                       (2) The facts so established should be
                       consistent only with the hypothesis of the

1
    (1984) 4 SCC 116
                                    11



      guilt of the accused, that is to say, they
      should not be explainable on any other
      hypothesis except that the accused 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 so
      complete 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."

36.     Before       laying   down       the     five   aforesaid
principles, Justice Fazal Ali speaking for the Court in
paragraph 152 extracted a paragraph from the case
of Hanumant vs. State of Madhya Pradesh as
stated by Mahajan, J. Paragraph 152 is reproduced
hereunder:

"Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the
nature, character and essential proof required in a
criminal case which rests on circumstantial evidence
alone. The most fundamental and basic decision of
this Court is Hanumant v. The State of Madhya
Pradesh, AIR 1952 SC 343,. This case has been
uniformly followed and applied by this Court in a
large       number    of   later    decisions     uptodate,      for
instance, the cases of Tufail (Alias) Simmi v. State
of Uttar Pradesh,(1969) 3 SCC 198 and Ramgopal
                                   12



         v. State of Maharashtra, (1972) 4 SCC 625. It may
         be useful to extract what Mahajan, J. has laid down
         in Hanumant's case (supra):

            "It is well to remember that in cases where
            the evidence is of a circumstantial nature, the
            circumstances from which the conclusion of
            guilt is to be drawn should in the first
            instance be fully established and all the facts
            so established should be consistent only with
            the hypothesis of the guilt of the accused.
            Again, the circumstances should be of a
            conclusive nature and tendency and they
            should   be   such   as    to   exclude   every
            hypothesis but the one proposed to be
            proved. In other words, there must be a
            chain of evidence so far complete as not
            to leave any reasonable ground for a
            conclusion consistent with the innocence
            of the accused and it must be such as to
            show that within all human probability
            the act must have been done by the
            accused."


12)   Keeping in view the guidelines laid down by the Hon'ble

Supreme Court, in the judgment, referred to above, we shall

now proceed to deal with the case on hand.


   I. "Last Seen Theory"


13)   Coming to the evidence of PW5 and PW6, they are none

other than the mother and sister of the deceased. Though,
                               13



their evidence reveals about a quarrel that occurred at home

and the deceased leaving the house without their knowledge.

About seven days after the deceased leaving the house, PW6

[sister] made a call to PW5 [mother] and informed that

Accused No. 1 and deceased are living happily. Fifteen days

thereafter, PW5 again enquired with PW6, who informed that

the deceased and Accused No. 1 are living happily.


14)   At this juncture, it would be appropriate to refer to the

evidence of PW6, who in her evidence deposed that, the

deceased informed her that she will stay in the hostel in-stead

of coming to her house at Bangalore, as Accused No.1

[Jagadeesh] promised to keep her in hostel and provide good

education. She [deceased] also informed PW6 that she had

sexual intercourse with him and she will not leave him. The

deceased used to talk to her now-and-then over a period of

time. As PW6 lost her cell phone, she changed her SIM card.

Ten [10] days prior to Vinayaka Chavathi, PW6 made a phone

call to a number from which she used to receive calls from the

deceased. Accused No.1 answered the call stating that, the

deceased is staying in hostel; boys are not allowed in the

hostel and also informed that the deceased will come home to
                                 14



Vinayaka Chavathi day and that he will see that the deceased

speaks to PW6 on the day. For about 10 days, there was no

communication from the deceased. Hence, PW6 made a phone

call to the number from which the deceased used to make

calls. Accused No.1 lifted the phone call and when enquired,

seems to have given evasive answers about the deceased and,

thereafter, switched off the cell phone. Long thereafter i.e.,

22.10.2011

they received a phone call from One Town Police

Station for identification of a photo.

15) From the evidence of PW5 and PW6, it appears that in

the month of July 2011, the deceased left the house and was

in touch with PW6 for couple of months and later on there

was no response. Only in the month of October 2011, they

received a phone call from the Police Station asking them to

come to the Police Station for identifying the photograph,

which was identified to be as that of the deceased. Basing on

nose pin and ring. So, the above evidence makes it clear that

from July to October, the deceased was living separately and

neither PW5 nor PW6 saw the deceased. But, one fact, which

requires to be noted, is that, on 13.07.2011 itself the body

was traced in the well of PW1. But, basing on Ex.P2

photograph only, it was identified as that of the deceased in

the month of October i.e., nearly four months later.

16) At this stage, it would be appropriate to refer to the

evidence of PW13, PW14, PW15 and PW19.

17) PW13, in his evidence deposed that, Accused No.1 is a

friend of his son, who runs CD shop at Kattamanchi. He also

states that, he knows Accused No.1 as he used to visit his

son's shop. According to him, sometime in the year 2011

Accused No. 1 came with a girl and informed that the girl is a

lover of his friend and requested PW13 to keep the said girl in

the house for one day. Accused No.1 came with the said girl

at 5.00 P.M., took supper along with the girl in his house and

stayed for that night. On the next day at 8.00 A.M. he left

with the girl. According to PW13, the name of the girl is

Gayathri, resident of B.C. Colony, Aragonda. On 06.11.2011

PW13 identified the photo as that of the girl, who came to his

house basing on the photograph. This evidence of PW13 is of

no help to the prosecution, for the reason, that PW13 does

not mention the month in which Accused No.1 and the

deceased came to his house and stayed there for a night. His

evidence only refers to the year in which Accused No.1 and

the deceased came to his house. If at-least month in which

they came to his house was mentioned, an inference could

have been drawn for or against the prosecution. Since, only

the year is mentioned, it could also be prior to the deceased

leaving the house of her parents as well.

18) PW14 was working as pump boy at Kattamanchi.

Accused Nos. 1 and 2 were known to him. On one day,

Accused No. 1 made a phone call stating that he will bring

one girl, who is a lover of his friend and requested PW14 to

keep her for two days in his friend's house. PW14 made a call

to PW15 [M. Sivakrishna] and requested him to provide

shelter to a girl, in the house of his brother-in-law. As the

proposal was accepted, PW14 made a phone call to Accused

No. 1 to come to Doddipalle, Chittoor. PW14 went to

Doddipalle along with PW15, where Accused No. 1 came there

with a girl in the month of July, 2011 and again says July,

2011. Accused No. 1 claims to have informed the name of the

girl as 'Gayathri'. PW14 and PW15 took Accused No. 1 and

the deceased to the house of PW19 and left Accused No. 1 and

the deceased in the house of PW19 and returned to their

house. However, in the month of November, 2011, the Circle

Inspector of Police is said to have enquired, when he helped

Accused No. 1 to stay with the deceased in his friend's

brother-in-law's house. At that point of time, the witness was

declared as hostile.

19) In the cross-examination by Public Prosecutor, a

suggestion was put to PW14 by showing the photograph, as to

whether it was the same girl who came along with Accused

No.1. He denied the suggestion stating that he is unable to

say whether the girl in Ex.P2 as the girl, who came along with

Accused No. 1 on that day and stayed in the house of PW19.

In the cross-examination done by the Counsel for the

Accused, it is stated that the Circle Inspector did not show

Ex.P2 to him when they enquired. He further submits that the

girl was aged about 25 years.

20) Insofar as this witness is concerned, his evidence is not

sure as to whether it was in the month of June or July, 2011,

when Accused No. 1 and the deceased requested him to

provide shelter in the house of his friend. This evidence of

PW14 is required to be tested with the evidence of PW15, who

blatantly stated that he is not in a position to identify the boy

and the girl, as it happened four years ago and, as such, he

was declared hostile. He was cross-examined, but nothing

useful came to be elicited in favour of the prosecution.

21) PW16 who is the brother of Accused No. 1 also did not

support the prosecution case.

22) Coming to the evidence of PW19, who was examined to

speak about Accused No. 1 and the deceased living in his

house for two days at the instance of PW15. According to him,

the deceased alone stayed in the house for a period of one

week. When she was leaving in the morning and returning

back in the night, his wife telephoned to PW15 and informed

the same, who then informed Accused No. 1, pursuant to

which Accused No.1 came and took her in an auto. According

to him, there was no complaint from the girl at any point of

time. In the cross-examination, he admits that, he does not

know the name of the girl and has not talked with her. He

also states that, the girl was aged about 30 years. It was

further elicited in the cross-examination that he does not

know the name of Accused No. 1, who is a friend of his

brother-in-law. He further admits that, he has seen Accused

No. 1 in the Court on two occasions and previously he has not

seen him anywhere and also stated that the girl was not

married.

23) From the answers elicited in the cross-examination of

PW19, who was examined to speak about Accused No.1 being

'last seen' in the company of the deceased, admits that he has

seen Accused No. 1 only on two occasions in the Court and he

has not seen him at any time and anywhere. It would be

appropriate to extract the same, which is as under:

"I did not state to the police the name of the girl as I did not know her name. I do not know the name of A.1, but he is friend of my brother in law Siva Krishna. I did not know the occupation and residential address of A.1. I saw A.1 in the court on two occasions. Previously I did not see him anywhere. It is not true to say that I do not know anything about the facts of this case I am giving false evidence as per the instructions of Police."

24) That being so and having regard to the fact that, PW15

did not support the prosecution case and PW14 was also

declared hostile at a particular stage, coupled with the

answers elicited in the evidence of PW13 and PW14, it can be

said that prosecution has failed to prove beyond reasonable

doubt the first circumstance of 'accused being last seen in the

company of the deceased'.

II. "Extra-Judicial Confession made by the Accused before PW9 [V.R.O]"

25) PW9, who was working as V.R.O. Kattamanchi, also

acted as panch witness for all the proceedings including

holding of inquest, scene of offence panchanama and rough

sketch of the scene. According to him, on 30.10.2011 at about

9.00 A.M., while he was in his house, Accused Nos. 1 and 2

came to his house and informed that One Town Police are

searching for them and they are afraid of Police and asked

him to help them. They are alleged to have disclosed the

commission of offence, which was reduced into writing. But,

in the cross-examination, he admits that, he has not recorded

the confessional statement of Accused Nos. 1 and 2 separately

and he also says that he has not recorded the statement of

accused in verbatim. He also admits that, he knows Accused

Nos. 1 and 2 as both of them are residents at Anjaneya

Swamy Temple Street. To a suggestion that Accused No. 1 did

not appear before him and made a confession was denied by

him. However, the investigating officer [PW20] in his cross-

examination admits that, no witness has stated before him

about participation of Accused No. 2 in the commission of

offence. PW20 also admits that, in the extra-judicial

confession of Accused Nos. 1 and 2, it was not mentioned that

they have given the alleged statement without any influence

by any person.

26) Question now is, whether this "extra-judicial confession"

can be believed?

27) In the case of Sansar Chand vs. State of Rajasthan2,

Hon'ble Apex Court in paragraph 29 observed as under:-

"29. There is no absolute rule that an extra judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307.

2010 (10) SCC 604

30. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed as under:-

"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.

28) In the case of Aloke Nath Dutta v. State of W.B.3, the

Hon'ble Apex Court, while holding that conviction based on

extra-judicial confession in absence of other corroborating

material, as unjustified, observed:

"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that

(2007) 12 SCC 230]

for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.

89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."

29) As is held by the Hon'ble Apex Court, extra-judicial

confession is a weak piece of evidence and it requires

corroboration in all material aspects. But, if the same inspires

confidence, it can be believed to connect the accused with

crime. But, here is a case where four months after the

incident, the accused is alleged to have made a confession

before the V.R.O. It may be true that the V.R.O. was known to

Accused Nos. 1 and 2, but, definitely, these accused could not

have gone and made a statement before the V.R.O. four

months after the incident, more so, when he acted as a panch

to all the proceedings in this case. Moreover, when none of

the witnesses examined during investigation refer to

participation of Accused No. 2 in their statement, it is difficult

to believe that Accused No. 2 would have confessed,

inculcating her in the crime. Therefore, it is very difficult to

believe the said circumstance and even if it is to be believed,

we feel that the same by itself cannot be a ground to connect

the accused with the crime.

III. "Purchase of Nylon Rope [M.O.1] from the shop of PW12"

30) PW12, who runs the hardware shop deposed that, about

four years ago at about 11.00 A.M., two boys purchased

plastic rope from him. Witness identifies the person who is

wearing yellow shirt as the person who purchased

nylon/plastic rope and brought by police to his shop on that

day. It was Accused No. 1. He further states that, he will sell

wire similar to the nylon wire marked as M.O.1. It would be

appropriate to extract the same, as under:

"We will sell the wire similar to the nylon wire marked as M.O.1".

31) From the evidence-in-chief of PW12, it is clear that, his

evidence is silent as to purchase of nylon rope by Accused

No.2. Apart from that, his evidence-in-chief also does not

show that M.O.1 [wire] was the wire, which was sold by him,

but states that, the wire similar to M.O.1 will be sold by him.

Therefore, this circumstance, in our view, will not establish

that the wire [M.O.1] used for tying the body was the wire

which was purchased from the shop of PW12. Apart from

that, in the cross-examination, he admits that, the wire

similar to M.O.1 will be sold in the open market and are

available freely. He further admits that, it is not possible for

him to identify all the purchasers who come to his shop.

According to him, Accused No. 1 purchased the plastic wire at

about 8.00 to 8.15 P.M. and sold it at Rs.4/- per meter. But,

there is no documentary evidence to that affect also. But, one

fact, which throws some doubt, as stated earlier is, he sold

wire similar to M.O.1 and no date or month is given as to the

sale of the said nylon rope. Therefore, this circumstance, in

our view, does not establish the involvement of the accused,

more particularly, usage of the nylon wire purchased from the

shop of PW12.

IV. "Sale of Cell Phone [M.O.12] of the deceased"

32) PW11 was examined to speak about same. His

evidence-in-chief is as under:

"On 30.10.2011 at about 2.30 P.M. Circle Inspector of Police, Chittoor, along with his staff mediators, A1 and

another person came to my house. A1 had shown to me and informed to the police that he handed over cell phone to me. I admitted that I received cell phone from A1. The cell phone handed over by A1 to me is GFIVE. MO.12 is the cell phone which was handed over by A1 to me. A1 handed over the phone 15 days prior to the date of police came to my house. I requested A1 to give cell phone as my cell phone was not working hence, A1 handed over MO12 to me. Police seized MO.12 from me under cover of panchanama and obtained my signature. The seizure panchanama prepared for seizure of MO.12 dated 30.10.2011 at my house is Ex.P9."

33) But, one fact, which is required to be noted is that the

cell phone, which was received from PW11 as belonging to the

deceased, was not put for identification to any of the

witnesses including the mother [PW5] and sister [PW6] of the

deceased. Further, PW11 in his cross-examination admits

that, he is not aware about the phone number of M.O.12 cell

phone nor he furnished the same to the police.

V. "Sale of Motorcycle [M.O.11] to PW10"

34) PW10 was examined to speak about purchase of M.O.11

from Accused No.1. He in his evidence deposed as under:

"I came to know that Jagadeesh is going to sell a motorcycle so, I approached him. I purchased Yamaha

RX 100 motorcycle from Jagadeesh (A1) about 4 years back for Rs.13,000/-. The motorcycle bearing No. AP.03.G.2887 was purchased by me from A1. On 30.10.2011 at about 1 P.M., A1 and A2 accompanied by police came to my house. Police enquired me whether I purchased motorcycle from A1 and I admitted that I purchased the motorcycle. I did not obtain transfer of motorcycle in my name. Police seized motorcycle from my house stating that the motorcycle was used in commission of offence. Police examined me. A mahazar was prepared for seizure of motorcycle I signed in it. The seizure mahazar prepared as Ex.P8. MO.11 is the motorcycle bearing no. AP.03.G.2887."

35) In the cross-examination, he admits as under:

"I have no friendship with A1. I did not state to the police that A1 is my friend. I did not know the door number and residential address of A1. I do not know the father's name of A1.

It is true one will purchase motorcycle only after verifying the documents. I purchased the motorcycle from A1 as he promised that he will get the vehicle registered in my name. The shop of A1 is adjacent to the auto showroom at Kattamanchi. I did not insist A1 to issue receipt for receiving Rs.13,000/-."

36) This evidence of PW10, in our view, is of no help to the

prosecution, as it is not the case of the prosecution that the

vehicle sold to PW10 is that of the deceased or the family

members of the deceased. Accused No. 1 is said to be the

owner of the vehicle and he said to have sold the vehicle to

PW10.

37) Coming to the evidence of the Investigating Officer

[PW20], he in his evidence speaks that, after Accused No.1

and 2 confessing about killing the deceased, he searched

them and found in possession of "Forme Cell Phone", three

SIM cards and one memory card etc. The three SIM cards are

marked as M.O.15 to M.O.18 respectively. Similarly, "Nokia

Cell Phone" of Accused No. 2 and one SIM card was seized.

M.O.19 is the SIM card. But, the cell phones seized from

Accused Nos. 1 and 2 were already marked as M.O.13 and

M.O.14 through other witnesses. But, no evidence has been

adduced by the prosecution to show the effect of those

seizures. It is not the case of the prosecution, at any point of

time that these cell phones belong to the deceased or other

family members. Mere seizure of cell phones, unless establish

the incriminating nature, does not, in our view, help the

prosecution in proving their case.

VI. "Identification of the dead body as that of the deceased"

38) Coming to the identification of the body as that of the

deceased, the evidence of Investigating Officer [PW20] show

that, Murgaiah, PW5 [Sankaramma] and PW6 [Yamuna]

stated before him that on seeing the "Mukku ringu", they

identified the same as that of the deceased. But, strangely,

the properties, which are produced before the court, do not

include the ring. PW20 further admits that, as per inquest

report, F.I.R, the statement of PW1 and doctor certificate, the

age of the deceased is between 20 to 25 years. He further

admits that, PW5 and PW6 on seeing the ornaments, clothes

and photographs, informed that they belong to the deceased.

But, it is to be noted here that, PW5 and PW6 in their

evidence speak about identifying the deceased basing on

clothes, nose pin and ring. But, the ring, as stated earlier,

was not produced before the court.

39) Coming to the clothes worn by the deceased as per

Ex.P2, it is to be noted here that in the cross-examination

PW20 admits PW5 [Sankaramma] informing them that, before

the deceased left the house, she was wearing brown colour

chuddidar, red colour pant, light green colour chunni.

Further, in one part of the inquest report, it was mentioned

that the deceased was wearing red colour chudiddar, pachi

colour flower design top, pachi colour chunni. Further, the

witness states that the deceased was killed three months after

she left the house. The dress worn by the deceased, at the

time of leaving the house is different from the dress seized in

this case. [dress shown in the photograph Ex.P2]. Therefore,

the evidence of PW5 and PW6 that they have indentified the

deceased basing on the dress, cannot be believed, more so,

when the nose ring, which was there on the body was not

produced before the Court.

40) In Kailash Gour and others vs. State of Assam4 the

Apex Court held as under:

"It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused `may have committed the offence' and `must have committed the offence' which must be traversed by the prosecution by adducing reliable and

AIR 2012 SC 786

cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away."

41) Having regard to above, we feel that the circumstances

relied upon by the prosecution are not proved beyond doubt and

the said circumstances do not form a complete chain,

connecting the accused with the crime. Considering the

judgments referred to above and in the absence of any cogent

and convincing evidence, we feel that, it is not safe to convict the

Appellant/Accused No. 1 for the charge of murder. Accordingly,

we are inclined to acquit the Appellant/Accused No. 1 by

extending benefit of doubt.

42) In the result, the Criminal Appeal is allowed. The

conviction and sentence recorded against the

Appellant/Accused No. 1 in the Judgment, dated 08.12.2015,