Katravath Shiva Shivakasi ... vs The State Of Telangana
2022 Latest Caselaw 5998 Tel

 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
                       AND
 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                     Crl.A.No.787 of 2014

                       DATE: 19.11.2022
Between :

Katravath Shiva @ Shivakasi Patnayak.
                                   ...Appellant
      And

The State of A.P., rep. by its Public Prosecutor.
                                        ...Respondent

For Appellant : Mr.Y.Chandrasekhara Reddy, Advocate.

For respondent          : Public Prosecutor.


< Gist:

< Head Note:

? CITATIONS :

1. AIR 1984 SC 1622
2. (2014) 12 SCC 133
3. 1952 SCR 1091 = AIR 1952 SC 343



C/15

                                                       GAC, J & RRN, J
                                                    Crl.A.No.787 of 2014

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

CRIMINAL APPEAL No.787 of 2014

JUDGMENT : (Per G.Anupama Chakravarthy, J)

This appeal is arising out of the judgment in S.C.No.412 of

2012, dated 02.05.2014 on the file of the IX Additional District and

Sessions Judge, Wanaparthy, whereby, the appellant was convicted

under Section 235(2) Cr.P.C. for the offences punishable under

Sections 302 and 380 of IPC and was sentenced to undergo

rigorous imprisonment for life and to pay a fine of Rs.5,000/-, and

in default of payment of fine, to undergo simple imprisonment for

six months for the offence punishable under Section 302 of IPC

and to suffer rigorous imprisonment for two years and to pay a fine

of Rs.1,000/-and in default of payment of fine, to undergo simple

imprisonment for one month for the offence punishable under

Section 380 of IPC.

2. The brief case of the prosecution is that PW-1 and one

Venkateshwar Rao are the sons of the deceased/Sathyavathi. The

deceased was living alone in Achampet town and her sons are also

GAC, J & RRN, J Crl.A.No.787 of 2014

residing in the same town independently. On 12.04.2011, while

PW-1 was playing shuttle at about 6 a.m., he received a phone call

from an unknown person informing him about the death of his

mother. On that, PW-1 rushed to the house, scaled over the

compound wall, noticed the main door locked from inside, went to

the back side, found the rear door opened and also found the dead

body of the deceased lying at the entrance of the lavatory/toilet

with injuries on the head and forehead. He also noticed missing of

gold ornaments of the deceased. Ex.P-1 is the complaint preferred

by PW-1 against unknown persons and basing on Ex.P-1, PW-

13/ASI, Achampet Police Station registered the case against

unknown offenders for the offences punishable under Sections 302

and 380 of IPC, vide Ex.P-2/FIR, PW-11/Inspector of Police,

Achampet took up investigation. During the course of

investigation, he visited the scene of offence, prepared the rough

sketch of it in the presence of mediators, collected the blood-

stained clothes of the deceased, held inquest over the dead body of

the deceased in the presence of panchayatdars, and later, forwarded

the dead body of the deceased to Government hospital, Achampet

GAC, J & RRN, J Crl.A.No.787 of 2014

for postmortem examination. He further recorded the statements of

blood-relatives of the deceased and other witnesses and later

handed over the dead body to the relatives of the deceased and also

recovered the mobile phone of the deceased from the possession of

one Balu, who is the brother-in-law of the accused under the cover

of panchanama/Ex.P-7. PW-10 also conducted investigation in this

case and he sent requisition to SDPO, Nagarkurnool for furnishing

the call details of the mobile bearing No.99127774146 belonging

to the deceased. Further, he made enquiries, came to know that the

handset was in possession of the brother-in-law of the accused and

on the basis of their information, apprehended the accused on

07.05.2011 and recorded his confession. Pursuant to the

confession of the accused, PW-10 recovered one pair of ear studs,

one pair of ear mateelu and a receipt pertaining to Manappuram

General Finance and Leasing Company from the accused and also

recovered three bangle pieces at the house of the accused. PW-11

also made requisition to the Judicial First Class Magistrate,

Achampet for Police custody of the accused and on further

interrogation, the accused, in the presence of mediators, led the

GAC, J & RRN, J Crl.A.No.787 of 2014

Police party to a shop at Santhoshnagar, Hyderabad, from where,

M.O.1/Nanu was recovered. The Doctor, who conducted the

postmortem examination over the dead body of the deceased,

opined that the death of the deceased was due to cardio-respiratory

arrest, as a result of head injury and damage to the brain. On

completion of investigation, the investigating officer filed charge

sheet against the accused for the offences punishable under

Sections 302 and 380 of IPC.

3. The Court of Session framed charges against the

accused/appellant for the offences punihshable under Sections 302

and 380 of IPC, for which, the accused pleaded not guilty and

claimed to be tried.

4. During the course of trial, prosecution has examined PWs.1

to 13 and Exs.P-1 to P-12 and M.Os.1 to 8 were marked. The

appellant was examined under Section 313 Cr.P.C. for the

incriminating evidence of the prosecution against him and the

accused denied the evidence and reported no defence evidence.

GAC, J & RRN, J Crl.A.No.787 of 2014

Considering the oral and documentary evidence on record, the trial

Court convicted the appellant as aforesaid offences.

5. Heard learned counsel for the appellant and the learned

Public Prosecutor appearing for the State.

6. The point for consideration in this appeal is;

"Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and whether there is any irregularity or error in the judgment of the trial Court, requiring interference ?"

7. It is the contention of the learned counsel for the appellant

that the charges framed against the accused are defective,

misleading, which resulted in failure of justice and the facts do not

make out a case under Section 302 of IPC. It is also contended by

the learned counsel for the appellant that the entire case of the

prosecution is based on the circumstantial evidence and the

panchsheel principles required to prove the circumstantial evidence

are not proved by the prosecution. It is further contended that the

trial Court cannot presume that the accused committed murder of

the deceased and presumption cannot be drawn under Section

114-A of the Indian Evidence Act as the alleged recoveries of

GAC, J & RRN, J Crl.A.No.787 of 2014

M.Os.2 to 4 were after the lapse of 25 days from the date of

incident, M.O.5 after lapse of 27 days and M.O.1 after the lapse of

36 days. Further, the prosecution has failed to conduct test

identification parade of articles and further there is discrepancy in

the weight of the ornaments for which no proper explanation was

putforth by the prosecution.

8. The learned counsel for the appellant has relied on the

judgments of Hon'ble Supreme Court in Sharad Birdhi Chand

Sarda v. State of Maharashtra1 and in Prakash v. State of

Karnataka2. Accordingly, prayed to set aside the judgment of the

Sessions Court and to acquit the accused/appellant.

9. On the other hand, the learned Public Prosecutor has

contended that there are no errors or irregularities in the order

passed by the Sessions Judge and the trial Court has rightly

convicted the accused as the prosecution was able to prove the guilt

of the accused for the offences charged.

AIR 1984 SC 1622

(2014) 12 SCC 133

GAC, J & RRN, J Crl.A.No.787 of 2014

10. It is necessary to appreciate the oral and documentary

evidence in order to come to the conclusion whether the

prosecution is able to prove the guilt of the accused. Admittedly,

the entire case rests on the circumstantial evidence as there are no

direct eyewitnesses to the incident, and in a case of circumstantial

evidence, it is for the prosecution to prove the chain of events

which forms as a complete ring and that there is no missing of link

for convicting the accused for the offences alleged.

11. PW-1 is the son of the deceased. His evidence discloses that

he received a call from an unknown person informing about the

death of his mother. The evidence of PW-1 clearly reveals that

after receiving the information, he went to the house of the

deceased, jumped over the compound wall for entering into the

house, pushed the main door, but it was not opened and on that, he

entered into the house from the rear door/back door, which was

found opened and the dead body of the deceased was found lying

on the ground facing towards the sky at the entrance of the lavatory

and also noticed injuries on the head and forehead and blood

oozing from the injuries. His evidence further discloses that his

GAC, J & RRN, J Crl.A.No.787 of 2014

mother/deceased used to wear golden nanu around her neck

weighing about three tulas, a rold gold chain of two pairs, a pair of

golden ear studs with matees, two gold bangles and a silver ring

and that she was also having a cell phone. M.Os.1 to 4 are the gold

nanu, pair of ear studs, pair of gold mateelu and three pieces of

gold bangles, which were marked through PW-1.

In the cross-examination, it is specifically deposed by PW-1

that he did not remember the telephone number from which he

received the call informing the death of his mother. He did not

observe whether the accused came to see the dead body along with

the neighbours. Further, it is admitted by PW-1 that they do not

have any receipts for purchasing M.Os.1 to 4.

12. It is important to note that the prosecution was not able to

prove as to who was that unknown person that made telephone call

to PW-1. The record reveals that the prosecution has made efforts

to call for the call data of the mobile number of the deceased.

Inspite of having the mobile number displayed in the mobile of

PW-1, no efforts are being made by the investigating officer to

ascertain as to who was the first person who saw the dead body of

GAC, J & RRN, J Crl.A.No.787 of 2014

the deceased at the scene of offence. It is relevant to mention that

the dead body was found in the house of the deceased and the front

door of the house was locked.

13. The evidence of PW-2, who is the neighbour of the

deceased, discloses that on 12.04.2011 at about 6.30 a.m., after

hearing the cries of PW-1, he came to the scene of offence and

noticed the dead body of the deceased with injuries. His evidence

further discloses that on previous night, he saw the deceased in her

compound and she used to wear gold ornaments and the said

ornaments were found missing on the dead body of the deceased.

14. Admittedly, the evidence of PWs.1 and 2 is in no way

helpful for the prosecution to connect the accused with that of the

crime. The evidence of PW-1 only establishes lodging of

complaint against some unknown person basing on which, a case

was registered and criminal law was set into motion. The evidence

of PW-2 establishes that the deceased used to wear ornaments and

the dead body was found without ornaments.

GAC, J & RRN, J Crl.A.No.787 of 2014

15. PW-3 is the Photographer, who took the photographs of the

deceased, at the instance of the Inspector of Police, Achampet.

Exs.P-2 and P-3 are the photographs. His evidence further

discloses that one day prior to the death of the deceased, he went to

her house to take her pictures, while doing pooja. In the

cross-examination, PW-3 specifically deposed that the deceased

was alone in the house at the time of his taking photographs and he

cannot say whether the chain worn by the deceased was gold or

rold gold. Prosecution has relied on the evidence of PW-3 to prove

that the deceased was wearing big and small gold studs at the time

of performing pooja.

16. The evidence of PW-4, who is the VRO, discloses that he

acted as a panch witness for the scene of offence, for the inquest

over the dead body of the deceased and also acted as a panch

witness for the confession and recovery of material objects

pursuant to the confession of the accused and was signatory to

Exs.P-4 to P-7, which are the crime detail form, inquest

panchanama and recovery panchanamas.

GAC, J & RRN, J Crl.A.No.787 of 2014

17. Admittedly, PW-4's evidence discloses that the accused had

confessed his guilt to the Police in his presence and pursuant to the

said confession, Police have recovered the ornaments i.e. M.Os.2

to 4.

18. PW-5 is the Goldsmith. His evidence discloses that the

Police have called him to the house of the accused and asked him

to weigh two gold bangle pieces, one pair of ear studs and mateelu,

and accordingly, he weighed the same and issued receipt to the

Police. In the cross-examination, he deposed that he had no

acquaintance with the accused and he went to the house of the

accused along with two or three Constables and also carried the

weighing machine. The ear studs with stones weighed about three

grams and three milligrams (3.03 mg.) and gold bangle pieces

weighed about 11.9 grams and mateelu weighed about 2.9 grams

and he has written the measurements on a white paper.

19. The evidence of PW-6, who is a Tailor by occupation,

discloses that about two years back, while he was at his house at

about 6 a.m., he learnt through villagers that the deceased

GAC, J & RRN, J Crl.A.No.787 of 2014

Sathyavathi was murdered by someone. On that, he went and saw

the dead body of the deceased and noticed the dead body with head

injury and ornaments on the dead body were missing. The

evidence of PWs.1 to 3, 5 and 6 is in no way helpful to the case of

the prosecution.

20. PW-7 is another panch witness. His evidence discloses that

he accompanied the Police on 18.05.2011 at the instance of the

MRO, Achampet and on that, the Police took him to

Mahabubnagar jail, in a Police jeep and the accused also

accompanied them in the Jeep and they all went to Santhosh Nagar

at Hyderabad and the accused showed them Manappuram Gold

Loan office and then, the accused informed them that he deposited

the gold ornaments in the same shop. On production of slips, the

Manager handedover gold nanu with pathakam to the Police, which

was recovered under a panchanama/Ex.P-8. M.O.1 is the gold

nanu, which was recovered from the Manappuram gold office. It is

specifically deposed by PW-7 that he has no idea about the

weighments/measurements of the gold articles and also had no

acquaintance with the accused.

GAC, J & RRN, J Crl.A.No.787 of 2014

21. PW-8 is the Manager of Manappuram gold loan office. His

evidence discloses that on 25.05.2011, the accused, Police and

other persons came to their office and on inquiry, basing on the

name of the accused, he traced out the pawn ticket which contains

the photo of the accused, name, address, phone number etc. and on

that, he produced the gold chain, which was seized by the Police.

In the cross-examination, it is deposed by PW-8 that he did not file

any identity card to prove that he is the Manager of Manappuram

gold Finance Company and the Police also have not shown any

identity proof while he was in the office on 25.05.2011. It is also

testified by PW-8 that their office is situated in a busy area and on

average, 5 to 6 persons will come to their office everyday to avail

loan on deposit of gold ornaments. He further testified that he did

not ask the accused whether the gold brought by him was

purchased and whether he got the receipt for purchase of the same.

The evidence of PW-8 further discloses that there is no procedure

in their Company to insist for the receipts and bills for purchase of

the gold ornaments which were offered to deposit for availing

loans.

GAC, J & RRN, J Crl.A.No.787 of 2014

22. It is relevant to note that the gold loan application/pawn

ticket was not produced/marked as an Exhibit to connect the

accused with the crime, for the reasons best known to the

prosecution. At the same time, there is no proof before the Court

to believe the evidence of PW-8, to prove that he is the employee

of Manappuram Gold Finance Company.

23. The evidence of PW-9 i.e. the Doctor discloses that on

12.04.2011, he conducted postmortem examination over the dead

body of the deceased from 4.15 to 5.30 p.m. and Ex.P-9 is the

postmortem report of the deceased. It is further testified by PW-9

that he found one deep lacerated wound over the head and on

opening of the head, he found damage to brain, fracture of frontal

bone and opined that the death of the deceased was due to

cardiac-respiratory arrest as a result of intra cranial hemorrhage.

In the cross-examination, PW-9 deposed that the injury

found on the dead body of the deceased may be possible by a fall

on a hard object and also admitted that he has not specifically

stated the mode of injury that caused cardiac respiratory arrest, that

too, was due to damage of brain.

GAC, J & RRN, J Crl.A.No.787 of 2014

24. The rest of the evidence in this case is that of the Police

officials. PW-13 is the Sub-Inspector of Police, who registered the

case in Crime No.37 of 2011 and issued Ex.P-12/FIR. Later,

investigation was conducted by PW-10. During the course of

investigation, he conducted inquest panchanama over the dead

body of the deceased and prepared the inquest report and also the

crime detail form at the scene of offence and made recoveries of

the material objects during the course of recording confession of

the accused. Further, PW-11 also conducted detailed investigation

and recovered M.O.5/mobile phone under the recovery

panchanama/Ex.P-7 and also forwarded the material objects

M.Os.6 to 8 which are the wearing apparel of the deceased to FSL

for chemical analysis and prepared the sketch of scene of offence

and scene observation report, is Ex.P-4. PW-12 is the Inspector of

Police, who also partly investigated the case, received the FSL

report/Ex.P-11 and filed the charge sheet.

25. Their evidence only discloses about the investigation done

by them and also reveal that the entire case was made out basing on

GAC, J & RRN, J Crl.A.No.787 of 2014

the confession of the accused, as there is no direct eye witness in

this case.

26. It is important to note that the confession given by the

accused to the Police is hit by Section 25 of the Indian Evidence

Act. Pursuant to the confession, the information discovering the

recovery of material objects connecting to the crime is only

admissible under Section 27 of the Indian Evidence Act. The

prosecution has completely relied on the material objects which

were recovered at the instance of the accused i.e. M.Os.1 to 5, but

failed to connect the material objects with that of the crime, as

none of the witnesses have identified the ornaments, as that of the

ornaments of the deceased, including PW-1, who is the son of the

deceased. Moreover, it is mandatory to conduct test identification

parade, as per Rule 35 of the Criminal Rules of Practice. A special

procedure is laid under Rule 35 to mix each ornament with that of

the similar ornaments and it has to be identified by the concerned

persons/parties, but the same is lacking in this case. Moreover,

M.O.5, which is alleged to be the mobile phone of the deceased,

was not identified by any one and even the call data report was also

GAC, J & RRN, J Crl.A.No.787 of 2014

not filed before the Court to prove that the accused had stolen the

property.

27. Section 380 of IPC envisages that whoever commits theft in

any building, tent or vessel, which building, tent or vessel is used

as a human dwelling, or used for the custody of property, shall be

punished with imprisonment of either description for a term which

may extend to seven years, and shall also be liable to fine.

28. The confession of the accused, though not admissible,

discloses that the accused went behind the deceased, shut her

mouth and when she bit the middle finger of his right hand and

pushed him back with one hand, but the accused got up and hit her

with force on her forehead with the available broken piece of brick,

due to which, she fell down on the shabad stones in supine position

and died. Thereafter, he snatched her bangles, ear studs and

mateelu, one gold nanu with gold locket with stones and came out

of the house through back door, took away her cell phone, took the

broken brick used as crime weapon in the murder and threw the

brick by the side of the drainage and left the place. As per the said

GAC, J & RRN, J Crl.A.No.787 of 2014

confession, it is evident that the accused alleged to have committed

theft from the dead body of the deceased, therefore, Section 404

alone attracts, but not Section 380 of IPC.

29. Admittedly, the Police have not filed any charge sheet

against the accused for the offence under Section 404 of IPC.

Section 404 of IPC reads as under:

"404. Dishonest misappropriation of property possessed by deceased person at the time of his death :--Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years."

30. As already stated supra, charge under Section 380 of IPC is

applicable only when the theft is committed in a dwelling house

from the person who is alive. But, it is the case of the prosecution

that the accused has snatched the gold ornaments from the dead

body of the deceased after her death. Therefore, there cannot be

any charge against the appellant for the offence punishable under

Section 380 of IPC. Therefore, the trial Court ought to have

GAC, J & RRN, J Crl.A.No.787 of 2014

framed a charge against the appellant for the offence under Section

404 of IPC instead of Section 380 of IPC. Therefore, the

conviction and sentence imposed against the accused for the

offence under Section 380 of IPC is liable to be set aside.

31. It is pertinent to mention that there is no evidence before the

trial Court as to who saw the dead body of the deceased first and as

to how PW-1 came to know about the death of the deceased

through unknown person. It is the case of the prosecution that

PW-1 received a phone call from an unknown person but what

made the investigating officer not to collect the call data of PW-1

to prove that PW-1, being the son of the deceased, received the

information on cell phone and basing on the complaint/Ex.P-1, the

criminal law was set into motion. Furthermore, as already stated

supra, the investigating officer has failed to establish that the

material objects alleged to have been seized at the instance of

accused pursuant to his confession, belong to the deceased, as no

test identification parade was conducted for identification of gold

ornaments.

GAC, J & RRN, J Crl.A.No.787 of 2014

32. The evidence of Police officials does not disclose as to why

they got suspicion on the accused and as to how they apprehended

the accused in this case. Admittedly, the accused did not come

before the Police to confess his crime. In a case of circumstantial

evidence, it is for the prosecution to prove that all the events have

formed a chain, forming a complete ring. The last seen theory is

also missing in this case to prove that the accused being the Tailor,

used to stitch the garments of the deceased and both were last seen

together prior to the incident. None of the witnesses have deposed

before the Court that the accused and deceased were seen together

prior to the incident. The entire case rests on the confession of the

accused. Even as per the said confession, the accused has gone to

the house of the deceased, one day prior to her death and at that

time, the Photographer was taking the photographs of the deceased

and that he had an evil eye to commit theft of the gold ornaments

of the deceased. But, PW-3/photographer has not testified the

presence of accused, at the house of deceased one day prior to her

death. Absolutely there is no iota of evidence on record that the

appellant was moving suspiciously near the house of the deceased

GAC, J & RRN, J Crl.A.No.787 of 2014

or had lurked into the house of the deceased to commit

robbery/dacoity or extortion. In the absence of proper evidence,

presumption cannot be drawn that the accused has committed

murder of the deceased. The cardinal principles of criminal law

are to be adhered to i.e. the accused shall be presumed to be

innocent till the guilt is proved and that the burden is on the

prosecution to prove such guilt of the accused beyond reasonable

doubt.

33. In the judgment of Hon'ble Supreme Court relied on by the

learned counsel for appellant in Sharad Birdhi Chand Sarda's

case (1 supra), while referring to the judgment in Hanumant v.

State of Madhya Pradesh3, it is held as under:

"Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat v. State of M.P. [1953] SCR 1091.

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

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

1952 SCR 1091 = AIR 1952 SC 343

GAC, J & RRN, J Crl.A.No.787 of 2014

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.

These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence and in the absence of a corpus delicti."

34. The above judgment squarely applies to the facts and

circumstances of the present case and there is no iota of evidence

to connect M.Os.1 to 5 with that of the accused. The crime

weapon alleged to have been used by the accused is a broken brick,

but the prosecution has failed to produce the same. Therefore, this

Court is of the considered view that the prosecution has miserably

failed to prove the guilt of accused beyond reasonable doubt, and

therefore, the judgment of the Sessions Court is liable to be set

aside. The trial Court also erred in convicting the appellant and

appellant is entitled for benefit of doubt.

GAC, J & RRN, J Crl.A.No.787 of 2014

35. In the result, the Criminal Appeal is allowed. The appellant

is found not guilty of the offences punishable under Sections 302

and 380 of IPC, and accordingly, the conviction and sentence

imposed on the appellant vide Judgment dated 02.05.2014 in

S.C.No.412 of 2012 on the file of IX Additional District and

Sessions Judge, Wanaparthy, is hereby set aside and the appellant

is acquitted of the charged offences. The appellant shall be

released forthwith, if not required in any other case. The fine

amount paid, if any, shall be refunded to the appellant.

36. Though the trial Court has ordered for return of M.Os.1 to 5

valuables to PW-1, but, in the absence of proper evidence showing

that those articles belong to the deceased, it is not proper to

handover those items to PW-1. Therefore, M.Os.1 to 4 i.e. Gold

nanu, pair of ear studs, pair of gold mateelu and three pieces of

gold bangles shall be confiscated to the State and M.Os.5 to 8 i.e.

Mobile phone, blood-stained saree, blouse of deceased and blood

sample packet shall be destroyed after appeal time is over.

GAC, J & RRN, J Crl.A.No.787 of 2014

Pending miscellaneous applications, if any, shall stand

closed.

_________________________________ G.ANUPAMA CHAKRAVARTHY, J

_________________________________ NAMAVARAPU RAJESHWAR RAO, J

Date: 19.11.2022

N.B:

(1) Judgment be forthwith communicated to the jail authorities concerned.

(2)    L.R. copy be marked.
                (b/o)
                 ajr