Bollapally Srinivas Ravi Kumar, vs The State Of Ap Rep. By Its Pp Hyd.,
2022 Latest Caselaw 4316 Tel

     HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                        AND
        HON'BLE JUSTICE A.SANTHOSH REDDY

               CRIMINAL APPEAL No.769 of 2013

JUDGMENT:       (per Dr. Justice Chillakur Sumalatha)


       Questioning the validity and the legality of the

judgment that is rendered by the Court of V Additional

District and Sessions Judge (Fast Track Court), Ranga

Reddy District in Sessions Case No.387 of 2011, dated

06.9.2013, wherein and whereby appellant Nos.1 and 2

were    convicted     for    the       offences      punishable    under

Sections 302, 404 and 201 IPC, the present Criminal

Appeal is filed.


2.     Having found appellant Nos.1 and 2 guilty of the

offences charged, for the offence punishable under

Section 302 IPC, they were sentenced to undergo

imprisonment for life and to pay fine of Rs.500/- in

default   of     payment          of    fine,   to    undergo     simple

imprisonment        for     one        month.     They   were     further

sentenced to undergo rigorous imprisonment for a period

of six months and to pay fine of Rs.500/- in default of

payment of fine, to undergo simple imprisonment for one
                               2
                                                 Dr.CSL, J & ASR, J
                                                CrlANo.769 of 2013



month the offence punishable under Section 404 IPC.

Likewise, they were sentenced to undergo rigorous

imprisonment for a period of six months and to pay fine

of Rs.500/- in default of payment of fine, to undergo

simple   imprisonment   for       one   month    the     offence

punishable under Section 201 IPC.


3.   Heard Sri P.Prabhakar Reddy, learned counsel for

appellant No.1, Sri K.Venkat Rao, learned counsel for

appellant No.2 and also the learned Assistant Public

Prosecutor representing the respondent-State. Also, gone

through the contents of the written submissions made by

learned counsel for appellant No.2 and further, perused

the contents of the decisions relied upon by the learned

counsels.

4. The matrix of the prosecution case, as could be

perceived through the contents of the charge sheet, is

that appellant No.1 (hereinafter be referred to as

"accused No.1" for the sake of convenience of discussion)

worked as Production Manager in Ushakiran Movies,

Chennai. While he was attending a serial by name Alu

Dr.CSL, J & ASR, J CrlANo.769 of 2013

Balu, he got acquaintance with Smt Vellanki Anantha

Laxmi (hereinafter be referred to as "the deceased" for the

sake of convenience of discussion). Accused No.1 gave a

chance to the daughter of the deceased as a child artist.

Later, accused No.1 resigned from his job and joined

Gemini channel. While, accused No.1 was attending the

serial by name Missamma, he got acquaintance with

appellant No.2 (hereinafter be referred to as "accused

No.2" for the sake of convenience of discussion). Accused

No.1 gave a chance to the son of accused No.2 as a child

artist. During that period, accused No.1 developed illegal

intimacy with accused No.2. Both of them started living

together.

5. On 25.02.2009, accused No.1 went to the house of

a junior artist by name Mallika to seek money. There, he

met the deceased and informed the deceased about his

financial crises. He sought the help of the deceased. The

deceased informed accused No.1 that if he gives a chance

to her to act in serials, then she would give him money.

Both of them exchanged their contact numbers. At that

time, accused No.1 observed the gold ornaments worn by

Dr.CSL, J & ASR, J CrlANo.769 of 2013

the deceased. He hatched a plan to commit theft of the

gold ornaments and kill the deceased. He informed the

plan to accused No.2. As per their plan, accused No.1

contacted the deceased on 28.02.2009 over phone. The

deceased met accused No.1 at Borabonda. Accused No.1

took the deceased to the house where he is living with

accused No.2. Accused No.1 got one beer to the deceased

and one whisky to him. After consuming the liquor, both

the accused pounced upon the deceased and

strangulated her with a chunny. After confirming her

death, accused No.1 took the gold ornaments from the

body of the deceased, and also cash of Rs.700/- and cell

phone from her handbag. Both the accused stuffed the

dead body of the deceased into a gunny bag and stitched

it. They shifted the dead body of the deceased to

Habeebnagar drainage nala and threw the same into the

nala. Later, they took petrol, poured on the dead body of

the deceased and set it ablaze. But, the dead body was

not burnt due to the presence of water. Subsequently,

both the accused went to Nellore and sold the gold

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ornaments for Rs.27,000/- and spent the same for their

necessities.

6. On the complaint given by P.W-2, a case was

registered and was investigated into. On reliable

information, on 29.3.2009 accused No.1 was

apprehended and interrogated. Accused No.1 confessed

the commission of offence in the presence of

panchayatdars. Basing on the confessional statement of

accused No.1, Police went to the nala where the dead

body of the deceased was thrown, traced the dead body,

conducted the scene of offence panchanama and drew

rough sketch. Inquest was held over the dead body of the

deceased in the presence of the panchayatdars.

Photographs of the dead body of the deceased were also

taken. Subsequently, the dead body was shifted to

Gandhi Hospital, Hyderabad for post-mortem

examination. Accused No.1 led Police and the

panchayatdars to a rented house. Accused No.2 was

present in the said house. Accused No.2 was taken into

custody and interrogated. Her statement was recorded.

The gilt ornaments and the cell phone of the deceased

Dr.CSL, J & ASR, J CrlANo.769 of 2013

were recovered. The Hero Honda motor cycle over which

dead body of the deceased was carried to nala was also

seized. Panchanama was conducted and the rough

sketch of the scene of offence was also drawn. Both the

accused were arrested and remanded to judicial custody.

Subsequently, accused No.1 was taken to Police custody

and the gold ornaments were recovered from the shop at

which both the accused sold them. The femur bone

pertaining to the deceased was sent to Forensic Science

Laboratory, Hyderabad for examination. The doctor who

conducted autopsy over the dead body of the deceased

opined that the deceased died due to strangulation.

7. On committal of the case, the Court of V

Additional District and Sessions Judge (Fast Track

Court), Ranga Reddy District at L.B.Nagar framed

charges against both the accused for offences punishable

under Sections 302, 379 and 201 read with Section 34

IPC and conducted trial.

8. Having subjected the evidence of P.Ws-1 to 13,

Exs.P-1 to P-16 and MOs.1 to 8 to scrutiny, the learned

Dr.CSL, J & ASR, J CrlANo.769 of 2013

judge of the trial Court came to a conclusion that the

prosecution has established the guilt of both the accused

beyond all reasonable doubt for the offences punishable

under Sections 302, 404 and 201 IPC and accordingly,

convicted and sentenced them. The judgment thus

rendered is under challenge.

9. In the light of the afore-mentioned factual scenario,

the points that emerges for consideration are:

(1) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 committed the offence of culpable homicide amounting to murder punishable under Section 302 IPC.

(2) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 dishonestly misappropriated the property which was in possession of the deceased at the time of her death and thereby, committed offence punishable under Section 404 IPC.

(3) Whether the prosecution established beyond all reasonable doubt that accused Nos.1 and 2 caused disappearance of evidence with an intention to screen themselves from legal punishment and thereby, committed offence punishable under Section 201 IPC.

(4) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the

Dr.CSL, J & ASR, J CrlANo.769 of 2013

appellants/accused, which in turn requires the interference of this Court exercising appellate jurisdiction

10.Point Nos.1, 2 & 3:-

As rightly projected by learned counsels appearing

for accused Nos.1 and 2, which is not opposed or

disapproved by the learned Assistant Public Prosecutor,

the case purely rests on circumstantial evidence.

11. Bringing to the notice of this Court the relevant

points to be considered for convicting the accused in a

case which purely rests on circumstantial evidence, the

learned counsel for accused No.1 relied upon two

important rulings of the Hon'ble Apex Court. The first

decision is the one in the case between Padala Veera

Reddy Vs. State of AP1, wherein the Court at para 10 of

the judgment held as follows:-

"Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently

1 AIR 1990 SC 79

Dr.CSL, J & ASR, J CrlANo.769 of 2013

held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

12. The second decision is the one in the case between

Prakash Vs. State of Karnataka2, wherein the Court at

para 72 of the judgment held as follows:-

"It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact.

2 (2014) 12 SCC 133

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In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused."

13. Thus, basing on the afore-mentioned principles of

law enunciated, we have to scrutinize the evidence

scrupulously and examine carefully the circumstances

appearing in this case so as to come to a conclusion with

regard to proof of guilt of the accused beyond all

reasonable doubt.

14. Learned counsels appearing for accused Nos.1 and

2 stressed extensively and projected their arguments

mainly on two grounds, i.e.,

(1) reliability of testimony of the prime witnesses as well as the crucial documents; and (2) identification of the dead body and connecting the accused with the crime.

15. Ex.P-1-complaint has set the criminal law into

motion. Ex.P-1-complaint was given by P.W-2. The

evidence of P.W-2 is that the deceased is his wife and she

was working as junior artist in the movies. As on the date

of the incident, he was at Vijayawada. P.W-1 telephoned

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to him and informed him that his wife is missing.

Immediately, he rushed to Hyderabad and searched for

her, but could not find her. On 07.3.2009, himself and

P.W-1 went to Ramachandrapuram Police Station and

lodged a complaint (Ex.P-1). On 29.3.2009, Police

informed them that they got information about a dead

body and requested them to come and identify the dead

body. They were taken to a nala at Moosapet where a

gunny bag containing some material was opened in their

presence. They found dead body of his wife in it. On the

basis of the saree on her person, they identified the dead

body.

16. Thus, by the evidence of P.W-2, it is clear that

P.W-2 was not present at the house on the date on which

the deceased left the house and did not return thereafter.

His evidence is also that he was informed by P.W-1 over

phone regarding missing of his wife. P.W-2 in Ex.P-1-

complaint did not narrate that he was not present at the

house on the date of the incident and that, he was at

Vijayawada on the said day. In Ex.P-1-complaint, P.W-2

narrated that at the time the deceased left the house, she

Dr.CSL, J & ASR, J CrlANo.769 of 2013

was wearing blue colour work saree, blue colour blouse,

one black beads gold chain, locket, one gold

mangalasuthra, ear bands (matilu), two rings and wrist

watch. Thus, P.W-2 narrated as if he himself witnessed

what the deceased was wearing when she left the house.

The evidence of P.W-2 is that basing on the saree which

she was wearing when she left the house, the dead body

was identified. However, the mother of the deceased i.e.,

P.W-1 stated that she identified the deceased on seeing

the dead body because she is her mother.

17. The evidence of P.W-1 is that the deceased is her

daughter and four years back, on one day, her daughter

received phone call and while she was going out, she

enquired the deceased where she is going. The deceased

informed her that she received a phone call from one Ravi

Prasad and she wants to introduce her son in T.V. serials

and by stating so, she went outside. On the same day,

she telephoned to the deceased, but could not contact

her as her cell phone was switched off. She informed the

matter to her relatives and then, she made a phone call

to P.W-2 and informed him. They searched for four days

Dr.CSL, J & ASR, J CrlANo.769 of 2013

and later gave a complaint to Police. She further deposed

that Police informed them that they traced a dead body

and that, they took two persons into their custody and

those persons stated that they kept the dead body in a

gunny bag and threw it in a nala at Moosapet. On that,

herself and some of her relatives went to Police Station,

where Police informed them that the accused demanded

Rs.5,000/- from the deceased and as the deceased did

not pay the said amount, they gave some cool drink to

her in which some substance was mixed and made her

drink the same and after the deceased became

unconscious, they killed her by strangulation. They kept

the dead body in their office and later, took the gold

ornaments, kept the dead body in a gunny bag and threw

the same into a nala. She further deposed that Police

tried to trace out the gunny bag, but it could not be

traced. The two accused were brought to that place and

they revealed the location and then the dead body was

traced.

18. As earlier pointed out, identification of dead body

was a crucial factor for the prosecution for establishing

Dr.CSL, J & ASR, J CrlANo.769 of 2013

the guilt of the accused. P.W-1 stated that the deceased

being her daughter, she identified the dead body. P.W-2

gave evidence to the effect that on the basis of the saree

on the person, they identified the dead body. Therefore, it

has to be seen whether the dead body was in a position

to be identified as so and so person. P.W-3-the son-in-law

of the deceased though stated that he identified the dead

body, he did not reveal the grounds basing on which he

could identify the same. One of the panch witnesses i.e.,

P.W-5 gave evidence to the effect that the dead body was

found in water. The evidence of another panch witness

i.e., P.W-6 is that when Police took out the dead body,

they saw the same in a totally decomposed condition.

19. The evidence of P.W-10 who conducted autopsy

over the dead body of the deceased requires thorough

examination. The evidence of P.W-10 is that he received

requisition from the Station House Officer,

Ramachandrapuram Police Station to conduct post-

mortem examination and accordingly, he conducted post-

mortem examination on 29.3.2009. His evidence is that

he found anti-mortem ligature mark of size 28 x 4 cms

Dr.CSL, J & ASR, J CrlANo.769 of 2013

around the neck. He also stated that knot was on the left

side of the neck. He further deposed that the approximate

time of death is one month prior to the date of post-

mortem examination. During the course of cross-

examination, P.W-10 admitted that since the body was in

a decomposed condition, he could not find identification

marks on the body. When he could not find the

identification marks and when his evidence is that all

organs are softened, brain liquified, how he could find

ligature mark around the neck is not known.

Surprisingly, he has even given the size of the ligature

mark. He deposed in his chief-examination that the

approximate time of death is one month prior to the date

of post-mortem examination and the body was in a

decomposed condition.

20. The aforesaid facts, more particularly that the

death occurred one month prior to the date of post-

mortem examination, the body, as stated by the

witnesses including the doctor who conducted post-

mortem examination, was in a decomposed condition and

further, the evidence of P.W-10 that he could not find the

Dr.CSL, J & ASR, J CrlANo.769 of 2013

identification marks as the body was in a decomposed

condition, casts any amount of suspicion about the

genuineness in the observation made by P.W-10 and the

evidence given to the effect that he found anti-mortem

ligature mark of size 28 x 4 cms around the neck of the

deceased. Some how this fact was lost sight by the trial

Court. Though the Police collected the femur bone and

sent the same to the Forensic Science Laboratory for

forensic examination, it did not yield any result. The

contents of Ex.P-16- Forensic Science Laboratory report

reveals that blood sample was collected from P.W-1 who

is the mother of the deceased and the said blood sample

and the femur bone collected from the dead body of the

deceased were subjected to forensic examination.

However, the result of the examination and the report of

the Scientific Officer is as under:-

"DNA is extracted from item No.1. There is no DNA yield from item No.2. The DNA profile of item No.2 is necessary to compare with the DNA profile of item No.1. Hence, no report can be given."

Dr.CSL, J & ASR, J CrlANo.769 of 2013

21. Thus, on what basis the dead body that was found

was opined to be that of the deceased-Anantha Laxmi is

not known. As per the evidence of prosecution witnesses,

the dead body when it was traced, was in a totally

decomposed condition. The genuineness of Ex.P-1-

complaint about the wearing apparel of the deceased

becomes doubtful as it is not P.W-2 who had witnessed

the said facts. Though P.W-1 stated that she could

identify the dead body as the same pertains to her

daughter, in the light of the evidence of other witnesses,

the genuineness in the said evidence becomes doubtful.

22. At this juncture, it is relevant to make a mention

about the chemical changes that would occur when the

dead body of a human being is exposed to different

environmental situations.

23. We first discuss about signs of death and changes

following death-

Forensic traphonomy is the study and interpretation of

postmortem processes of human remains, i.e. the history

of a body following death. A knowledge of the signs of

Dr.CSL, J & ASR, J CrlANo.769 of 2013

death help differentiate death from suspended animation.

The changes which take place after death are helpful in

estimation of the approximate time of death. The signs of

death appear in the following order.

Immediate (somatic death): (1) Insensibility and loss of voluntary power. (2) Cessation of respiration. (3) Cessation of circulation.

Early (cellular death): (4) Pallor and loss of elasticity of skin. (5) Changes in the eye. (6) Primary flaccidity of muscles. (7) Cooling of the body. (8) Postmortem lividity. (9) Rigor mortis.

Late (decomposition and decay): (10) Putrefaction. (11)

Adipocere. (12) Mummification."

24. The method of decomposition involves two main

processes:

(1) Autolysis,

(2) Putrefaction.

Autolysis: Autolysis is self-digestion of tissues. Soon after

death, cell membranes become permeable and

breakdown, with release of cytoplasm containing

enzymes. Lysosomes and their digestive enzymes (mainly

hydrolases) are released from the cells. The proteolytic,

Dr.CSL, J & ASR, J CrlANo.769 of 2013

glycolytic and lipolytic action of ferments causes

autodigestion and disintegration of organs without

bacterial influence. This chemical process is increased by

heat and is stopped by freezing or inactivation of enzymes

by the heat. The earliest autolytic changes occur

parenchymatous and glandular tissues and in the brain.

The lining of intestines, adrenal medulla and pancreas

autolyse within hours of death. Autolytic fermentation

results in maceration of the dead foetus in utero, early

softening and liquefaction of the brain of the newborn

and infants, and softening of the internal organs. The

earliest external sign is a whitish, cloudy appearance in

the cornea.

Putrefaction: The terms decomposition and putrefaction

are used as synonyms. It is the final stage following

death, in which destruction of the soft tissues of the body

is caused, produced mainly by the action of bacterial

enzymes, mostly anaerobic organisms derived from the

intestines. Other enzymes are derived from fungi, such as

Penicillium and Aspergillus, and sometimes from insects.

The chief destructive bacterial agent is Cl. welchii, which

Dr.CSL, J & ASR, J CrlANo.769 of 2013

causes marked haemolysis, liquefaction of postmortem

clots and of fresh thrombi and emboli, disintegration of

tissues and gas formation in blood vessels and tissue

spaces. Lecithinase produced by Cl. welchii is most

important. This hydrolyses the lecithin which is present

in all cell membranes including blood cells, and is

responsible for the postmortem haemolysis of blood. The

other organisms include Streptococci, Staphylococci, B.

proteus, B. coli, B. aerogenes capsulatus, bacteroids,

anaerobic lactobacilli, diphtheroids, etc. Bacteria produce

a large variety of enzymes and these breakdown the

various tissues of the body. It begins immediately after

death at the cellular level. There is progressive

breakdown of soft tissues and the alteration of their

proteins, carbohydrates and fats. Organisms enter the

tissues shortly after death mainly from the intestines,

and less often through the respiratory tract, or through

external skin wounds. The fall in the oxygen

concentration in the tissues and rise in hydrogen ion

concentration after death, favour bacterial growth and

spread throughout the body. Because the protective

Dr.CSL, J & ASR, J CrlANo.769 of 2013

agencies of the body are absent, the bacteria spread

through the blood vessels, using the proteins and

carbohydrates of the blood as culture media. The

characteristic features of putrefaction are: (1) changes in

the colour of the tissues, (2) collection of gases in the

tissues, and (3) liquefaction of tissues. (Referred for profit

from the Book "The Synopsis of Forensic Medicine and

Toxicology" by Dr. K.S.Narayan Reddy).

25. Admittedly, as earlier discussed, the case totally

rests on circumstantial evidence. Therefore, it is

incumbent on part of the prosecution to establish and

connect each link of the chain so as to leave no room for

the Court to doubt the genuineness in the evidence

produced. However, in the case on hand, the identity of

the dead body itself is doubtful.

26. In the light of the discussion that went on supra,

we, unhesitatingly hold that there is no possibility

at least to the remotest, to identify the dead body basing

on physical features and to authenticate the cause of

death.

Dr.CSL, J & ASR, J CrlANo.769 of 2013

27. Moving to the next aspect i.e., regarding the

manner in which both the accused were arrested and the

alleged confessional statements of the accused, the

genuineness in the version of the prosecution as

projected before the Court is highly doubtful. As per the

version of the prosecution, the series of events are as

under:-

(1) On reliable information, accused No.1 was taken

into custody and on interrogation, he confessed

the commission of offence along with accused

No.2.

(2) On recording the confessional statement of

accused No.1 in the presence of panch

witnesses, all moved to a nala where the dead

body was thrown and thereafter, the dead body

was recovered.

(3) Accused No.1 thereafter led Police party and the

panch witnesses to the house where himself and

accused No.2 are residing and at the said house,

accused No.2 was apprehended.

Dr.CSL, J & ASR, J CrlANo.769 of 2013

(4) Later, both accused Nos.1 and 2 were brought to

Police Station and were remanded to judicial

custody.

28. Thus, it is clear that by the time P.Ws.1 to 3 and

others reached Police Station on the instructions of

Police, only accused No.1 was present at the Police

Station. Likewise, at the time of tracing out and recovery

of dead body, only accused No.1 was present and he has

shown the dead body. But, P.W-1 gave evidence to the

effect that on one day, Police called them and informed

that they have traced a dead body and that, they took two

persons into custody and those two persons stated that

they kept the dead body in a gunny bag and threw it into

a nala. She further deposed that both the accused

revealed the location of the gunny bag and basing on

their confessional statement, the gunny bag was traced.

Thus, by the evidence of P.W-1, it is clear that even

accused No.2 was present along with accused No.1 at the

Police Station and also at the place where the dead body

was recovered. However, the version of the prosecution is

that accused No.2 was taken into custody after the dead

Dr.CSL, J & ASR, J CrlANo.769 of 2013

body was recovered and that too, basing on the

confessional statement of accused No.1. Even the panch

witness i.e., P.W-5 used plurality and stated that about

two years back, Ramachandrapuram Police called him

and P.W-6 to Police Station and the accused were present

in the Police Station. Use of the word "were" denotes that

more than one accused were present at Police Station by

the time they reached Police Station. This corroborates

the testimony of P.W-1 and establishes that accused No.2

was also present along with accused No.1 at that time.

Though P.W-6 stated that after recovery of the dead body,

accused No.1 led them to the house of accused No.2 and

there, they apprehended accused No.2, P.W-5 who was

one of the panch witnesses did not state so. Even to

consider the evidence of P.W-6 to be genuine, P.W-6

himself has deviated from what he has deposed in his

chief-examination. P.W-6, who deposed in the chief-

examination that accused No.1 led them to the house of

accused No.2 and at that house, they found accused

No.2, in the course of his cross-examination clearly

stated that both the accused were present at Police

Dr.CSL, J & ASR, J CrlANo.769 of 2013

Station when he went there. Thus, the genuineness in

the version put forth by the prosecuting agency regarding

the manner of arrest of accused Nos.1 and 2 become

highly doubtful.

29. Moving forward, the prosecuting agency tried to

connect the accused with the death of the deceased

through recovery of her belongings i.e., M.Os.1 to 7.

However, admittedly, and as rightly projected by the

learned counsels appearing for the accused, no test

identification parade was conducted for identification of

the said Material Objects by the family members of the

deceased. Why such an identification parade was not

conducted is not revealed anywhere. The submission

before the Court that those Material Objects belongs to

the deceased cannot be given credence, that too, in a

case like this, which purely rests on circumstantial

evidence. Further, it is not the version of P.W-2, as earlier

discussed, that he witnessed the deceased leaving the

house with MOs.2 to 7 on her body and MO-1-cell phone

in her possession. Therefore, this Court is unable to

agree with the findings given by the learned judge of the

Dr.CSL, J & ASR, J CrlANo.769 of 2013

trial Court that recovery of those Material Objects

connects the accused with the crime.

30. Further more, as earlier discussed, the manner in

which the accused were arrested has become highly

doubtful. The prosecution has totally failed to establish

that MOs.1 to 7 belongs to the deceased and that they

were recovered from the possession of the accused.

31. When the Material Objects could not be connected

with the crime and the accused, and where the dead body

traced out cannot be conclusively held that it is the dead

body of the deceased-Anantha Laxmi, it cannot be held

that the accused have caused disappearance of evidence

with an intention to screen themselves from the legal

punishment.

32. The prosecuting agency has not even taken steps

to present the call data regarding the mobile numbers of

the deceased and accused No.1 so as to establish that

they were in contact with each other. Though the

Investigating Officer i.e., P.W-12 during the course of his

cross-examination admitted that there are three cell

Dr.CSL, J & ASR, J CrlANo.769 of 2013

numbers mentioned in Ex.P-1-complaint, one belonging

to the deceased and the other two belonging to P.W-2 and

that, he sent a requisition to the service provider of those

three cell phones to furnish the call data and that, he

received reply from the service provider, but for the

reasons best known, the said material has not seen light

of the day. What prevented the Investigating Officer from

disclosing those particulars is not known.

33. Further more, as per the version of the

prosecution, the deceased and accused No.1 met at the

house of one Mallika and there, they exchanged their

contact phone numbers and soon thereafter, the incident

occurred. Therefore, it is incumbent on part of the

prosecuting agency to record the statement of the said

Mallika. Though P.W-12 stated that as per his

investigation, the deceased was introduced to accused

No.1 though Mallika, he deposed that he has not

examined the said Mallika. The reasons are not stated

anywhere.

34. All the above circumstances casts a cloud of

suspicion on the entire veracity of the prosecution. That

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apart, a meticulous perusal of Ex.P-1-complaint goes to

show that the said complaint to some extent has got a

broad spacing between the lines and thereafter, the said

space was cut short. It appears as if the identity

particulars were written in detail without gap

subsequently. Though there is no substantive proof to

that effect and no such contention was raised by the

accused, yet as the same is observed by this Court, a

mention is made in that regard. Keeping that fact aside,

there are so many lacunae in the case of the prosecution

and also, there are number of aspects which remains

unanswered. Some genuine and worth investigating

aspects also remains unattended. When a case rests on

circumstantial evidence, the prosecuting agency should

take every care to collect such cogent and convincing

material so as to place the same before the Court of law

for connecting the accused with the crime and thereby, to

get the culprits convicted.

35. However, in the case on hand, the investigating

agency has not taken care to investigate the case on

proper lines and collect sufficient material. When such

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convincing evidence could not be produced by the

prosecution, the ultimate conclusion that can be drawn

is to extend the benefit of doubt in favour of the accused

and thereby, to acquit them.

36. Thus, having regard to the aforesaid discussion,

this Court holds that the prosecution failed to establish

the guilt of the accused beyond all reasonable doubt for

the offences punishable under Sections 302, 404 and 201

IPC.

37.Point No.4:-

A perusal of the judgment of the trial Court reveals

a clear mention and observation by the learned judge

that the entire case rests upon circumstantial evidence

and in such a case, all the circumstances have

reasonably to be proved as per the decisions of the

Hon'ble Supreme Court rendered in the case between

Sharad Biridhichand Sarda Vs. State of

Maharashtra3 and in the case between Bodh Raj Vs.

State of Jammu & Kashmir4.

3 AIR 1984 SC 1622 4 (2002) 8 SCC 45

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38. The Hon'ble Apex Court in Sharad Biridhichand's

case (supra), observed as follows:

"The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established."

39. Likewise, discussing the same aspect, in Bodh Raj's

case (supra), the Hon'ble Apex Court at paras 9 to 12` of

the judgment held as under:-

"9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the

Dr.CSL, J & ASR, J CrlANo.769 of 2013

principal fact can be legally inferred or presumed.

10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan {AIR 1977 SC 1063], Eradu v. State of Hyderabad {AIR 1956 SC 316}, Earabhadrappa v. State of Karnataka {AIR 1983 SC 446}, State of U.P. v. Sukhbasi {AIR 1985 SC 1224}, Balwinder Singh v. State of Punjab {AIR 1987 SC 350} and Ashok Kumar Chatterjee v. State of M.P. {AIR 1989 SC 1890} The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab {AIR 1954 SC 621} it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of

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A.P. {(1996) 10 SCC 193}, wherein it has been observed thus:

"21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

12. In Padala Veera Reddy v. State of A.P. {AIR 1990 SC 79} it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

Dr.CSL, J & ASR, J CrlANo.769 of 2013

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

40. Having held that bearing the above principles in

mind, it has to be seen whether the prosecution

established the guilt of the accused beyond all reasonable

doubt, the learned judge of the trial Court thereafter lost

sight of the fact that even the identity of the dead body

could not be established by the prosecution beyond all

reasonable doubt. When such an initial and crucial fact

could not be established, any amount of evidence

regarding other factors cannot be considered to hold that

the accused are guilty of the offences charged.

41. The prosecution failed to establish in clear terms

the manner in which the accused were apprehended. As

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discussed in the preceding points, whether accused

Nos.1 and 2 were arrested at once or whether basing on

the confessional statement of accused No.1, accused No.2

was arrested is also not stated with clarity.

42. Undoubtedly, the last seen theory cannot be

applied as there is no evidence on record to show that the

deceased accompanied accused No.1 and they both went

to the house where accused Nos.1 and 2 resided together.

Recovery of the Material Objects in the manner as

projected by the prosecuting agency is also not

established. Therefore, we are unable to agree with the

findings of the trial Court that the accused are found

guilty of the offences charged.

43. The established principle of law is that in a

criminal case where there is a conflict between

presumption of innocence and contra, the former must

prevail. The case on hand, which entirely rests on

circumstantial evidence, should bear such evidence

which is consistent only with the hypothesis of the guilt

of the accused. The circumstances should be of

conclusive nature and they should exclude every other

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hypothesis, except the guilt of the accused. But, the

chain of evidence produced by the prosecution is not

complete to draw a conclusion that the accused have

committed the offences charged. Therefore, this Court is

of the view that the prosecution failed to establish that in

all human probability, offences have been committed by

the accused and the accused alone.

44. Without observing the lacunae in the case of the

prosecution, which are glaring on the face of record, the

learned judge of the trial Court came to a conclusion that

the prosecution has established the guilt of the accused

beyond all reasonable doubt. Therefore, we hold that the

judgment of the trial Court is unsustainable in the eye of

law.

45. Resultantly, the Criminal Appeal is allowed. The

appellants/Accused Nos.1 and 2 are found not guilty of

the offences charged. The appellants/Accused Nos.1 and

2, therefore, are acquitted of the said charges under

Section 235(1) Cr.P.C. Consequently, they shall be set at

liberty forthwith if their presence is not required in any

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other cases. The fine amount, if any, paid shall be

refunded to them.

46. As a sequel, pending miscellaneous applications, if

any, shall stand closed.

__________________________________ Dr.CHILLAKUR SUMALATHA, J

_________________________ A.SANTHOSH REDDY, J 26.8.2022 dr