Velmula Shivaramulu, Medak Dt., vs State Of Telangana, Rep Pp.,
2022 Latest Caselaw 3509 Tel

          THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
                                  AND
              THE HON'BLE SRI JUSTICE N. TUKARAMJI
                CRIMINAL APPEAL No.500 OF 2015

JUDGMENT: (Per Hon'ble Dr. Justice Shameem Akther)


      This Criminal Appeal, under Section 374(2) of the Code of

Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the

appellant/accused, aggrieved by the judgment, dated 27.03.2015,

passed in S.C.No.161 of 2013 by the VIII Additional Sessions Judge

at Medak, whereby, the Court below convicted the appellant/accused

of the offences punishable under Sections 302 and 379 of IPC and

sentenced him to undergo imprisonment for life and to pay fine of

Rs.5,000/- for the offence under Section 302 of IPC; and to undergo

simple imprisonment for three years for the offence under Section

379 of IPC.


2.    We have heard the submissions of Mrs. G.Jaya Reddy, learned

legal aid counsel for the appellant/accused, Sri C.Pratap Reddy,

learned Public Prosecutor appearing for the respondent/State and

perused the record.

3. The case of the prosecution, in brief, is as follows:

On 03.11.2012, PW.1-M.Satyalaxmi went to Ramayampet

Police Station and lodged Ex.P1 complaint stating she has two sisters

and two brothers. Her father died five years ago and her mother 2 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

(deceased-Poshavva) used to live in Ramayampet village alone in the

house got constructed by them for her to live in. Last week, on

account of Dussera festival, all the family members went to her

mother's residence at Ramayampet village and scrutinized the

accounts pertaining to construction of house to the deceased. Five

months back, they sold the land standing in the name of the

deceased for which, they received Rs.20 Lakhs. From the said

amount of Rs.20 Lakhs, they spent some amount for construction of

house to the deceased and from the remaining amount, they

purchased gold and made it into ornaments. On 03.11.2012, at

about 1800 hours, her husband made a phone call to the deceased.

There was no response. Hence, her husband called PW.2-Kalavathi,

who was living in front of the house of the deceased. When Kalavathi

went to the house of the deceased, there was no light in the house of

the deceased. Kalavathi informed the same to one Gopi, her

neighbor, and both of them went to the house of the deceased and

found the house latched from outside. On doubt, they entered into

the house and found the deceased dead. Immediately they informed

the same to PW.1. Immediately, the husband of PW.1 rushed to the

house of the deceased and saw the deceased dead, in prone position,

in the bedroom. A saree was tied around her neck, which was in

turn tied to a fan. The beads on the neck of the deceased was

broken and scattered all around. The silver bangles and the cell 3 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

phone of the deceased were missing. There are blood stains on the

cot. Some unknown culprits gained entrance into the house of the

deceased, killed the deceased and hanged her to the fan and

requested to take necessary action against the appellant/accused.

4. Basing on the report lodged by PW.1, LW.21-SI of Police,

Ramayampet Police Station, registered a case in Crime No.171 of

2012 for the offence under Section 302 of IPC and issued Ex.P16-

FIR. He recorded the statement of the PW.1/complainant and

handed over the investigation to PW.12-CI of Police. PW.12 visited

the scene of offence, conducted scene of offence panchanama and

drawn rough sketch under Ex.P5 in the presence of PW.6 and

another, seized MOs.5 to 8, examined PWs.2, 3, 7 and LWs.2 and 3,

held inquest over the dead body of the deceased under Ex.P6, sent

the corpse to the deceased for Post-mortem examination, examined

PWs.4, 5, 11 and LWs.7, 9, 10 and 12 and recorded their statements

after inquest, collected call data from the service provider with

reference to IMEI number of cell phone and SIM card of the deceased

under Ex.P17, arrested the appellant/accused on 15.11.2012,

interrogated him in the presence of PW.9 and LW.18 during which,

the appellant/accused confessed the commission of offence, recorded

his confessional statements under Ex.P9 and on completion of

investigation, laid charge-sheet before learned Judicial Magistrate of 4 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

First Class, Medak, against the appellant/accused of the offences

punishable under Sections 302 and 379 of IPC.

5. The learned Magistrate had taken cognizance against the

appellant/accused of the offences under Sections 302 and 379 of

IPC, registered the same as P.R.C.No.4 of 2013 and committed the

same to the Court of Session, since the offence under Section 302 of

IPC is exclusively triable by the Court of Session. On committal, the

Court of Session numbered the case as S.C.No.161 of 2013 and

made over to III Additional Sessions Judge (FTC) Medak, and from

there, the case was transferred to the Court below for trial and

disposal, in accordance with law.

6. On appearance of the appellant/accused, the Court below

framed charge against him of the offences under Sections 302 and

379 of IPC, read over and explained to him, for which, the

appellant/accused pleaded not guilty and claimed to be tried.

7. To prove the guilt of the appellant/accused, the prosecution

examined PWs.1 to 12 and got marked Exs.P1 to P19, besides case

properties, MOs.1 to 9.

8. PW.1-M.Sathya Laxmi is the complainant and the daughter of

the deceased. PW.2-T.Kalavathi and PW.3-V.Shantha are

circumstantial witnesses. PW.4-M.Bheemesh is also a circumstantial 5 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

witness and second son-in-law of the deceased. PW.5-B.Venu Prasad

is another circumstantial witness. PW.6-Alladi Narayana is a witness

for Ex.P5-Scene of offence panchanama and Ex.P6-Inquest report.

PW.7-R.Hari Prasad the photographer who took Ex.P2-photographs of

the corpse of the deceased. PW.8-Dr.Balram is the doctor who

conducted autopsy over the dead body of the deceased and issued

Ex.P8-PME Report. PW.9-D.Sanjeevulu is witness for Ex.P9-

confession and seizure panchanama. PW.10-P.Pradeep Naik is the

Magistrate, who conducted Test Identification Parade. PW.11-

K.Venkatachary is a gold smith and a circumstantial witness. PW.12-

A.Gangadhar is the investigating officer who arrested the

appellant/accused and laid charge-sheet before the Court. Ex.P1 is

the complaint. Ex.P2 is bunch of photographs of the corpse of the

deceased. Ex.P3 is relevant portion of 161 Cr.P.C. statement of

PW.3. Ex.P4 is photograph of MO.1-(9) gold beads. Ex.P5 is the

scene of offence panchanama and rough sketch. Ex.P6 is the

Inquest Report. Ex.P7 is the photographs CD. Ex.P8 is PME Report.

Ex.P9 is confession and seizure panchanama. Exs.P10 and P11 are

photographs of Pustela tadu and ear studs. Ex.P12 is proceedings of

Property Identification Parade conducted by PW.10. Ex.P13 is the

petition filed by PW.12-Investigating Officer before PW.10-Magistrate

for conducting Test Identification Parade of property. Ex.P14 is the

proceedings, dated 20.12.2012, of PW.10-Magistrate. Ex.P15 is 6 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

photograph of (3) properties. Ex.P16 is FIR. Ex.P17 is call details.

Exs.P18 and P19 are download printouts. MO.1 is (9) gold beads.

MO.2 is pair of gold ear studs. MO.3 is gold pustela tadu. MO.4 is

cell phone. MO.5 is pestle. MO.6 is two sarees. MO.7 is pillow

cover. MO.8 is bed sheet and MO.9 is gold chain.

9. When the appellant/accused was confronted with the

incriminating material appearing against him and was examined

under Section 313 of Cr.P.C., he denied the allegations and claimed

to be tried.

10. The trial Court, having considered the submissions made and

the evidence available on record, vide the impugned judgment, dated

27.03.2015, convicted the appellant/accused of the offences

punishable under Sections 302 and 379 of IPC and sentenced him as

stated supra. Aggrieved by the same, the appellant/accused

preferred this appeal.

11. Learned counsel for the appellant/accused would submit that

the whole prosecution case is based on circumstantial evidence.

There are no direct witnesses to connect the appellant/accused with

the death of the deceased and commission of theft of MO.3-gold

pustela tadu and MO.4-cell phone. Further, there is no mention

about commission of theft of MOs.3 and 4 in Ex.P1-complaint lodged 7 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

by PW.1. None of the prosecution witnesses deposed about

commission of theft of MOs.3 and 4 by the appellant/accused.

Further, PW.1 categorically stated in her cross-examination that

MO.4-cell phone does not belong to her mother (deceased). Though

Ex.P17-call details and Exs.P18 and P19-download printouts are

produced before the Court, there is no evidence to substantiate that

MO.3 and MO.4 belongs to the deceased. There is no ownership

details MO.4-cell phone. Moreover, certificate under Section 65B(4)

of Evidence Act is not obtained and filed before the Court, which is a

condition precedent to the admissibility of electronic record in

evidence. There is no cogent and convincing evidence to convict the

appellant/accused of the offences under Sections 302 and 379 of

IPC. The prosecution failed to prove the guilt of the appellant/

accused beyond all reasonable doubt of the offences under Sections

302 and 379 of IPC and ultimately prayed to allow the appeal by

setting aside the conviction and sentence recorded against the

appellant/accused and acquit him of the said offences.

12. Per contra, the learned Public Prosecutor would submit that

there is evidence of PW.1 and other witnesses to connect the

appellant/accused with the death of the deceased and commission of

theft of MO.3-gold pustela tadu and MO.4-cell phone. MO.2-pair or

gold studs, MO.3-gold pustela tadu and MO.4-cell phone were 8 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

recovered pursuant to the confession made by the

appellant/accused. The panch witnesses also supported the case of

prosecution. There is call details under Ex.P17 and download print

outs under Exs.P18 and P19, which demonstrate that MO.4-cell

phone was used by the appellant/accused, subsequent to the death

of the deceased, which clinchingly establishes that the

appellant/accused subjected the deceased to death and committed

theft of MO.4-cell phone and other gold and silver ornaments. The

evidence placed on record proves the guilt of the appellant/accused

beyond all reasonable doubt of the offences under Sections 302 and

379 of IPC. The Court below is justified in convicting and sentencing

the appellant/accused of the said offences and ultimately prayed to

dismiss the appeal by confirming the conviction and sentence

recorded against the appellant/accused vide the impugned judgment.

13. In view of the above submissions made by both sides, the

points that arise for determination in this appeal are as follows:

1) Whether the death of the deceased-Pochavva is homicidal?

2) Whether the appellant/accused had caused the subject death of the deceased?

3) Whether the prosecution is able to prove the guilt of the appellant/accused beyond all reasonable doubt?

4) Whether the conviction and sentence recorded against the appellant/accused of the offences punishable under Sections 302 and 379 of IPC is liable to be set aside?"

                                                9                           Dr.SA, J & NTR,J
                                                                         Crl.A.No.500 of 2015




POINT:-

14. There is no dispute that the whole prosecution case is based

on circumstantial evidence. In a case based on circumstantial

evidence, the settled law is that the circumstances from which the

conclusion of guilt is drawn should be fully proved, and such

circumstances must be conclusive in nature. Moreover, all the

circumstances should be complete and there should be no gap left in

the chain of evidence. Further, the proved circumstances must be

consistent only with the hypothesis of the guilt of the accused and

totally inconsistent with his innocence. The question whether chain

of circumstances unerringly established the guilt of the accused

needs careful consideration. The proof of a case based on

circumstantial evidence, which is usually called 'five golden

principles', have been stated by the Apex Court in Sharad Birdhi

Chand Sarda Vs. State of Maharashtra1, which reads as follows:-

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established.

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

AIR 1984 Supreme Court 1622 10 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

(5) There must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

15. Keeping the above principles in mind, we would now venture to

analyze the evidence on record. There is no dispute that the subject

death is homicidal. There is ample evidence on record, particularly

the evidence of PW.8 doctor coupled with Ex.P8-PME report to prove

that the subject of the deceased was homicidal and was caused

during the afternoon hours on 03.11.2012. As per Ex.P1 report

lodged with police by PW.1, there is specific mention of missing of

cell phone and silver bangles belonging to the deceased. Ex.P2-

photographs and Ex.P5-scene of offence panchanama and rough

sketch reveals that gold beads (9 in number) were found in the

scattered position on the ground at the crime scene. The Court

below, while dealing with the subject matter of the appeal, held that

the appellant/accused is guilty of the subject offence on the following

circumstances viz., (i) death of the deceased is a homicide; (ii) Gold

and silver articles and cell phone of the deceased were found

missing; (iii) Cell phone of the deceased was used by the

appellant/accused with his mobile phone SIM; (iv) Recovery of MO.1-

(9) gold beads from the scene of offence along with MO.5-pestle,

MO.6-two sarees, MO.7-Pillow cover and MO.8-Bed sheet; (v)

Recovery of MO.2-pair of gold ear studs, MO.3-gold pustela tadu and 11 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

MO.4-cell phone of the deceased were seized from the accused; (vi)

The evidence of PW.11 (gold smith) and fact that the accused have

gold beads similar to that of MO.1 and asked him to prepare the gold

chain and accordingly he prepared MO.9-gold chain and given to the

accused; (vii) PW.1 and her sisters identified MOs.1 to 4 and MO.9

articles as that of the deceased; and (viii) accused was seen at the

house of deceased by PW.4 and PW.5 one day before the death of

the deceased. The Court below further recorded a finding that the

appellant/accused, with an intention to kill the deceased, killed her

and stolen MO.2-pair of gold ear studs, MO.3-gold pustela tadu and

MO.4-cell phone and gold beads chain of the deceased and hence,

the charges levelled against the appellant/accused for the offences

punishable under Sections 302 and 379 of IPC stands proved.

16. The material placed on record reveals that PW.1 did not speak

about commission of theft of MO.2-pair of gold ear studs, MO.3-gold

pustela tadu and MO.4-cell phone by the appellant/accused. No

other prosecution witnesses have spoken that there was theft of gold

ornaments belonging to the deceased by the offender. So,

commission of theft of the gold ornaments (MOs.2 and 3) by the

appellant/accused was not proved beyond all reasonable doubt.

Recovery of MOs.2 and 3 will not have any bearing over the

determination of this appeal. Furthermore, it was mentioned in 12 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

Ex.P5-scene of offence panchanama and rough sketch that 9 gold

beads were found on the floor of the house. But there is no specific

evidence as to how many gold beads were there with the deceased at

the relevant point of time. During the cross-examination of PW.1,

she categorically stated that MO.4-cell phone does not belong to her

mother (deceased). To this statement, the Court below gave

reasoning that due to change of appearance and due to dust etc.,

PW.1 might have stated so. It has to be seen that none of the

prosecution witnesses identified MO.4-cell phone as that of the

deceased. Placing reliance on Ex.P17-call details and Exs.P18 and

P19-download print outs, the prosecution contended that MO.4-cell

phone belonged to the deceased. Firstly, no certificate under Section

65B(4) of Evidence Act was obtained and filed before the Court,

which is a condition precedent to the admissibility of electronic record

in evidence. Further, Exs.P17 to P19 does not contain ownership

details of MO.4-cell phone to substantiate that the deceased was

owning the same. Further, no document is produced to show that

MO.4-cell phone was being used with SIM No.9704441627. The case

of the prosecution is that the appellant/accused removed the SIM

No.9704441627 from MO.4-cell phone and used the same by

inserting his SIM card. But there is no evidence on record to show

that MO.4-cell phone, which was being used by the

appellant/accused, belonged to the deceased and that it was used by 13 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

the deceased at any point of time. There is no document to show

that the deceased had purchased the cell phone with IMEI

No.354562052719607. So, there is no legally acceptable evidence to

substantiate that the cell phone recovered from the

appellant/accused originally belonged to the deceased. Therefore,

the recovery of MO.4-cell phone pursuant to the confession made by

the appellant/accused is also not proved beyond all reasonable

doubt. As regards the silver bangles said to have been stolen in the

subject crime, there is no recovery of silver bangles at the instance

of the appellant/accused. Though the police have shown that MO.2-

pair of gold ear studs and MO.3-gold pustela tadu were recovered

pursuant to the confession made by the appellant/accused, there is

no legally acceptable evidence of commission of theft of those

ornaments by the appellant/accused. Therefore, identification of

MO.2 and MO.3 by PW.1 during the course of property identification

parade conducted by PW.10, loses its significance, as she did not

depose that MO.2 and MO.3 were stolen after commission of subject

murder of the deceased. Merely because the appellant/accused was

seen at the house of deceased by PW.4 and PW.5 one day before the

death of the deceased, the same would not make him guilty of the

subject murder of the deceased. The essential requirements to

prove the motive on the part of appellant/accused for commission of

subject murder of the deceased and that the appellant/accused had 14 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

committed murder for gain is not proved by the prosecution beyond

all reasonable doubt. The circumstances sought to be pointed out by

the prosecution against the appellant/accused are not conclusive in

nature and are inconsistent with the hypothesis of the guilt of the

appellant/accused. The chain of evidence against the appellant/

accused is not complete to arrive at a conclusion that in all human

probability, the appellant/accused has caused the subject death and

committed theft of MOs.2 to 4. The Court below had not analyzed

the evidence on record in correct perspective. The conclusions

reached by the Court below in finding the appellant/accused guilty of

the offences punishable under Section 302 and 379 of IPC are not in

tune with the evidence on record. The submissions advanced on

behalf of the appellant/accused merit consideration and the appeal

deserves to be allowed.

17. In the result, the conviction and sentence recorded against the

appellant/accused of the offences under Sections 302 & 379 of IPC

vide judgment, dated 27.03.2015, passed in S.C.No.161 of 2013 by

the learned VIII Additional Sessions Judge at Medak, is set aside.

Consequently, the appellant/accused is acquitted of the offences

under Sections 302 & 379 of IPC. The fine amount, if any, paid by

the appellant/accused shall be refunded to him. The appellant/ 15 Dr.SA, J & NTR,J Crl.A.No.500 of 2015

accused shall be released forthwith, if he is not required in any other

case.

18. The appeal is allowed, accordingly.

Miscellaneous petitions, if any, pending in this appeal, shall

stand closed.

______________________ Dr. SHAMEEM AKTHER, J

________________ N. TUKARAMJI, J

07th July, 2022 BVV