Kona Vbalamallaiah, ... vs P.P., Hyd
2022 Latest Caselaw 6215 Tel

          THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
                              AND
           THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                  CRIMINAL APPEAL No.267 of 2015

JUDGMENT: (Per Hon'ble Smt. Justice Juvvadi Sridevi)


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

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

appellant/sole     accused,      aggrieved   by    the   judgment,     dated

02.01.2015, passed in S.C.No.415 of 2013 by the learned IX

Additional Sessions Judge, Wanaprthy, whereby, the Court below

convicted the appellant/accused for the offence under Sections 302

and   379    of   IPC    and    sentenced    him   to    undergo     rigorous

imprisonment for life and pay fine of Rs.2000/-, in default, to

undergo simple imprisonment for six months for the offence under

Section 302 of IPC; and to undergo rigorous imprisonment for five

years and to pay fine of Rs.1,000/-, in default, to suffer simple

imprisonment for three months for the offence under Section 379

IPC. Both the sentences were directed to run concurrently.


2.    We have heard the submissions of Sri Srinivas Kapatia,

learned     counsel     for    the   appellant/accused,    learned     Public

Prosecutor appearing for the respondent-State and perused the

record.

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

On 12.11.2012 at about 10:00 AM, PW.1-Pokala Rama

Krishna went to Siddpaur Police Station and lodged Ex.P1-report

stating that he was residing at Hyderabad and her mother

(deceased-Pokala Sakkubai) was residing at Siddapur village

alone. In the night hours of 11.11.2012, some unknown offenders

beat her mother to death and committed theft of gold ornaments,

i.e., one gold pusthela tadu and four gold bangles, from the person

of her mother. The value of the gold ornaments was

approximately Rs.2,50,000/- and requested to take legal action

against the culprits.

4. Basing on Ex.P1-report, PW.8-Head Constable of Siddapur

Police Station registered a case in Crime No.27 of 2012 for the

offences under Sections 302 and 379 of IPC and issued Ex.P5-

Express FIR and sent to Committal Court, recorded the statement

of PW.1 and handed over the CD file to PW.10-Inspector of Police

for further investigation. PW.10 rushed to the scene offence,

secured presence of PWs.2 to 4 and examined them, prepared

Ex.P2-Crime Details Form in the presence of PW.6 and another,

collected blood stains from the scene of offence with the help of

MO.5-cotton in the presence of same panch witnesses, prepared a

rough sketch of scene of offence, got photographed the scene of 3 AAR,J & JS,J Crl.A.No.267/2015

offence, conducted inquest over the dead body of the deceased

under Ex.P3 in the presence of PW.6 and another, collected MOs.6

to 9 from the dead body of the deceased, sent the dead body for

Post-mortem examination. On 13.11.2012, he secured the

presence of PW.5 and four others and examined them. On

27.11.2012, he handed over the CD file to PW.11-Inspector of

Police, who returned from leave. PW.11 took up further

investigation, apprehended the accused on 28.11.2012, recorded

the confession of the accused under Ex.P4 in the presence of PW.7

and another, recovered MOs.1 to 4, 10 and 11, affected the arrest

of the accused and sent him to Court along with Remand Report,

sent the Material Objects except MOs.1 to 4 to Forensic Science

Laboratory for examination and report, handed over the CD file to

his successor in office, who after receiving the FSL report under

Ex.P8 and PME Report under Ex.P6, laid charge-sheet before the

committal Court, i.e., Judicial Magistrate of First Class, Achampet,

for the offences under Sections 302 and 379 of IPC.

5. The Learned Magistrate had taken cognizance against the

appellant/accused for the offences under Sections 302 and 404 of

IPC, registered the same as PRC No.13 of 2013 and committed the

same to the Sessions Division under Section 209 of Cr.P.C., since

the offence under Section 302 of IPC is exclusively triable by the 4 AAR,J & JS,J Crl.A.No.267/2015

Court of Session. On committal, the Court of Session numbered

the case as S.C.No.415 of 2013 and made over to the Court below

for disposal, in accordance with law.

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

framed charges 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 11 and got marked Exs.P1 to P8, besides case

properties, MOs.1 to 11.

8. PW.1-P.Ramakrishna is the complainant. PW.2-L.Jagapathi,

PW.3-K.Chinna Naraiah, PW.4-Ashok Goud and PW.5-P.Anjaneyulu

are circumstantial witnesses. PW.6-Boppi Ashok is a panch

witness for Inquest and Scene of Offence panchanama. PW.7-

P.Swamidas is a panch witness for Confession and Recovery

Panchanama of the accused. PW.8-A.Hussain is a Head Constable,

who issued Ex.P5-Express FIR. PW.9-Abdullah is the doctor who

conducted autopsy over the dead body of the deceased and issued

PME Report under Ex.P6. PWs.10 and 11 are the investigating

officers. Ex.P1 is the report. Ex.P2 is Crime Details Form. Ex.P3

is Inquest Panchanama. Ex.P4 is Confession-cum-Seizure 5 AAR,J & JS,J Crl.A.No.267/2015

Panchanama. Ex.P5 is FIR. Ex.P6 is PME Report. Ex.P7 is (six)

photographs. Ex.P8 is FSL Report. MOs 1 to 3 are gold bangles.

MO.4 is a gold chain. MO.5 is blood cotton. MO.6 is jacket. MO.7

is petticoat. MO.8 is Kerchief. MO.9 is sari. MO.10 is towel and

MO.11 is iron rod.

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 same and claimed to

be tried. No evidence, either oral or documentary, was adduced

on behalf of the appellant/accused.

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

the evidence available on record, vide the impugned judgment,

dated 02.01.2015, convicted the appellant/accused of the offences

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 subject death of the deceased. The

Court below erroneously convicted the appellant/accused for the 6 AAR,J & JS,J Crl.A.No.267/2015

offences under Sections 302 and 379 of IPC, without there being

any substantial evidence on record to prove his guilt for the said

offences beyond all reasonable doubt. PW.7, the person before

whom the appellant/accused alleged to have made extra judicial

confession, was pressed into service to speak about false recovery

of MOs.1 to 4, 10 and 11. Moreover, PW.7 is an interested

witness. The motive on the part of the appellant/accused for the

commission of the subject offence could not be proved by the

prosecution. The Court below relied on the evidence of PWs.2 and

3 who stated that the appellant/sole accused used to visit the

house of the deceased, but failed to appreciate the fact that the

very same witnesses also deposed that some other villagers also

used to visit the house of the deceased. The evidence of PW.9-

doctor could not lend support to the case of prosecution, inasmuch

as he stated in his cross-examination that the subject death of the

deceased could also be due to fall from considerable height.

Further, on MO.11-iron rod, which is allegedly used for commission

of the subject offence, neither there were finger prints of the

appellant/accused nor human blood was found on the same. The

evidence of the prosecution witnesses is not reliable and

trustworthy and do not inspire confidence to act upon. The Court

below was swayed away with the non-corroborative evidence of 7 AAR,J & JS,J Crl.A.No.267/2015

prosecution witnesses and erroneously convicted and sentenced

the appellant/accused basing on their testimony. The

circumstances from which an inference of guilt is sought to be

drawn against the appellant/accused are not cogently and firmly

established by the prosecution. The chain of events is not so

complete to rule out the reasonable likelihood of innocence of the

appellant/accused and ultimately, prayed to allow the appeal by

setting aside the conviction and sentence recorded against the

appellant/accused by the trial Court.

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

an innocent, helpless, age old woman was mercilessly beaten to

death by the appellant/accused. The evidence let in by the

prosecution amply proves the guilt of the appellant/accused of the

offences under Sections 302 and 379 of IPC. PW.9-doctor opined

that the death of the deceased was due to 'cardio respiratory

arrest due to chromatic subarachnoid Hemorrhage'. The

appellant/accused had free access to the house of the deceased.

Since the appellant/accused incurred lot of debts and as there was

pressure from the creditors to clear off the debts, the

appellant/accused was waiting for an opportunity to eliminate the

deceased and commit theft of the gold ornaments of the deceased

and clear off his debts by selling the gold ornaments. In 8 AAR,J & JS,J Crl.A.No.267/2015

furtherance of his plan, on 11.11.2012 at about 08:00 PM, he had

hit the deceased on her head with MO.11-iron rod while she was

having her supper, due to which, the deceased succumbed to the

injuries on the spot. The confession made by the

appellant/accused and recovery of material objects pursuant to his

confession clinchingly proves the guilt of the appellant/accused

beyond all reasonable doubt. There are no inconsistencies and

contradictions in the evidence of prosecution witnesses. All the

circumstances brought out against the appellant/accused are of

conclusive nature and definite tendency and they exclude every

possible hypothesis of innocence of the appellant/accused. The

chain of evidence led by the prosecution is complete and do not

leave any reasonable ground for the conclusion inconsistent with

the guilt of the appellant/accused. The Court below is justified in

convicting and sentencing the appellant/accused of the offences

under Sections 302 and 379 of IPC 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:

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                                                          Crl.A.No.267/2015




  1)    Whether the appellant/accused had caused the

subject death of the decease-Pokala Sakkubai on 11.11.2012 at her house situated at Siddapur Village of Achampet Mandal?

2) Whether the prosecution is able to prove the guilt of the appellant/accused of the offences under Sections 302 and 379 of IPC beyond all reasonable doubt?

3) 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?"

  4)    To what result?


POINTS:-

14. Undisputedly, 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 10 AAR,J & JS,J Crl.A.No.267/2015

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

(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.

16. PW.1 is the son of the deceased. He deposed that his

mother and she died on 11.11.2012. His mother Sakku Bai

(deceased) was alone residing at Siddapur village. On 12.11.2012

at about 07.30 AM, he received a phone call from LW.6-Ashok

Goud informing that his mother was beaten to death in the night

hours and her gold ornaments were committed theft. His mother

was wearing gold pusthela thadu and bangles. Soon after receipt

of the said information, himself, his sister (LW.2-Bharathi) and

AIR 1984 Supreme Court 1622 11 AAR,J & JS,J Crl.A.No.267/2015

other relatives went to Siddapur Village. He saw the injuries on

the dead body of his mother on the back of the neck and that her

gold ornaments were missing. Then he went to the police station

and lodged Ex.P1-complaint. He identified MOs.1 to 3 as 3 gold

bangles and MO.4 as the gold chain belonging to his mother. He

further deposed that he do not know the appellant/accused.

17. PW.2 is a circumstantial witness. He deposed that he knows

the deceased and she died on 11.11.2012. He knows the accused,

as he belongs to their village. Accused is an auto driver. The

deceased normally used to be found in front of her house in the

morning hours regularly. On 12.11.2012, she was not found in

front of her house. Thereupon, himself and LW4-Brahmaiah went

to her house and found the door on the western side closed. Then

they went to eastern side door. In the mean while LW.5-Chinna

Naraiah also came. The door on the eastern side of the house was

partially found opened. Then all the three of them entered into

the house and there was a grill before entering inside the house.

From the grills, they found the dead body of the deceased on the

floor with blood on the floor. Then they came out of the house.

Thereafter police arrived in the village. When the villagers

gathered, accused also came to that place and after arrival of the

police, he fled away. Accused used to visit the house of the 12 AAR,J & JS,J Crl.A.No.267/2015

deceased regularly and attend her works. He has seen the

accused at the house of the deceased on the previous night at

7.30 PM. Their house is adjacent to the house of the deceased.

PW.2 was cross examined at length, wherein he stated that like

the accused, other villagers also used to visit the house of the

deceased.

18. PW.3 is another circumstantial witness. He deposed that

deposed that he know PWs.1, 2 and the deceased. On the next

day of death of the deceased, in the morning hours, he went

towards the bus stand in the village. At that time, he noticed

PW.2 and LW.4-Brahmaiah peeping into the house of the

deceased. As they could not see anything, they called him and all

three went towards the eastern door of house of deceased Sakku

Bai. The front room of the eastern side was found opened and on

entering into it, they saw the deceased lying on floor and blood on

the floor. They went and informed the same to LW.6-Ashok. The

accused is an auto driver. He used to bring the kirana saman to

the house of the deceased and attend her works. On the previous

evening at about 7.30 p.m., he has seen the auto of the accused

parked by the side of the house of the deceased. Accused was

there in the village and saw the dead body of the deceased along

with others and on hearing about the arrival of police, he went 13 AAR,J & JS,J Crl.A.No.267/2015

away from the village. Though PW.3 was cross examined at

length, nothing was elicited to disprove his testimony in his

examination-in-chief.

19. PW.4 is another circumstantial witness. He deposed that he

know PWs.1 to 3, the deceased and the accused, as all of them

belong to same village. About two years back, on one day, at

about 07:00 AM in the morning, PW.3 came and informed him that

he, PW.2 and another person, found the deceased dead in her

house. Then, he went to the house of the deceased saw her dead

body and informed to PW.1 over phone.

20. PW.5 is another circumstantial witness. He deposed that he

knows PWs.1 to 4, the deceased and the accused, as they are all

belong to same village. On 11.11.2012, at about 5.00 PM, while

he was at the bus stand of Siddapur village, LW.9-Venkatesh came

and met him at the bus stand. While they were talking to each

other, accused came with his auto and asked him to bring the

coolies from Padmaram Thanda in his auto and handed over the

auto to him. Accordingly, he went to Padmaram Thanda with the

auto of the accused, brought the labour and dropped them at

Siddapur. After dropping the labour, accused met him at

Peerlabavi agricultural well and he handed over the auto to him.

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Thereafter, accused went with his auto to his house, whereas

himself and LW.9-Venkatesh went to the house of Narsimha, the

maternal uncle of Venkatesh. After that, himself and LW.9 sat at

the shop of Sala Mallaiah and watched a movie in the TV at his

shop. Thereafter at about 09.00 PM, himself and LW.9 went to

the house of his paternal grandmother and as she was not found

at her house, both of them went to the house of the accused and

found his house locked and auto was parked in front of the house.

Then, both of them sat in the auto of the accused. Ten minutes

thereafter, accused arrived at his house and gave him Rs.200/-

asking him to bring two beer bottles. At that time accused was

found in tension mood. Himself and LW.9 went in the auto of the

accused to a kirana shop where beer bottles were also being sold

and bought two bottles of beer and went to the house of the

accused. As LW.9 said that he cannot drink one complete beer

bottle, he telephoned to LW.8-Kiran for taking beer. Thereafter,

LW.8 came and they four sat together. After completing the drink,

LW.8 went away. Thereafter, himself and LW.9 went to sleep in

the house of the accused on the floor and the accused went to his

bed to sleep. On the next day morning at about 7'o clock, he

woke up and by that time accused also woke up. One Padmamma

informed that the deceased was found dead in her house. Then 15 AAR,J & JS,J Crl.A.No.267/2015

himself, LW.9 and accused went to the house of the deceased and

saw her dead body. After that, the accused asked him to bring his

auto, which was at his house. Then he has brought the auto and

the three of them, Gopal and Suresh, went in the auto to

Mysamma Canal. There, they attended nature calls and washed

face. Gopal and Suresh got down the auto at Rachabanda in

return and he got down at the house of Basheer, whereas

Venkatesh and accused together went in the auto. The villagers

were saying that since accused was bringing provisions,

vegetables etc., to the deceased, he might have killed her. The

accused, having heard that the sniffer dogs will be brought to the

village, fled away with his auto from the village. PW.5 was cross

examined at length, wherein nothing was elicited to discard his

testimony in his examination-in-chief.

21. PW.6 is a panch witness for Inquest and Scene of offence

panchanama. He deposed about the police conducting Ex.P2-

Crime Details Form and Ex.P3-Inquest Panchamama in his

presence and collection of MO.5-cotton, MO.6-Jacket and MO.7-

Petty Coat, MO.8-Hand Kerchief and MO.9-Sari by the police in his

presence.

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22.   The evidence of PW.7 is crucial.     He is the person before

whom,   the    accused   alleged   to   have   confessed   about    the

commission of subject offence.      He deposed that he knows the

accused, as he belongs to their village. Fifteen days of the death

of the deceased, himself and LW.15-Niranjan were called by the

police near the house of the accused in the evening hours at about

04.00 PM. Accused was present at his house and police asked

them to enquire the accused. Accordingly, when they enquired

the accused by taking away from the police, he told them that he

incurred debts to a tune of Rs.3 lakhs; since he was working with

the deceased by attending her works, he intended to commit her

murder to take away her ornaments and accordingly he committed

her murder in her house by beating her with an iron rod in the

night hours and took away gold chain and three bangles; By the

time he reached his house, two persons were found in his auto

and hence, he tied the gold ornaments of the deceased and in a

towel and threw it and iron rod on the roof of his old house and

thereafter he gave Rs.200/- to two persons who were present in

his auto asking them to bring two beer bottles; after bringing the

beer bottles, they consumed it and he slept in his house and on

the next day morning he went to the house of deceased with the

said persons saw the dead body of the deceased, later went to 17 AAR,J & JS,J Crl.A.No.267/2015

canal, washed the face and later himself and one Venkatesh went

to Devarakonda in the auto and from there, Venkatesh went to

Nalgonda; he received a phone call from his brother-in-law

informing that sniffer dogs were brought to the village and it went

to his house and the villagers were saying that he committed the

murder of the deceased; On hearing the said information from his

brother-in-law, he went to Hyderabad in a bus and kept his auto in

the shed at Devarakonda; after the money with him was

exhausted, he returned to the village and went to his house to

take the gold articles of the deceased from the top of the roof

police caught him there. PW.7 further deposed that the accused

took them to the old house, went on to its roof with the help of

ladder, and brought the gold articles and the iron rod with the

towel and same were collected by police. MO.10 is the towel,

MO.11 is the iron and produced by the accused along with gold

articles under MOs.1 to 4 and seized by the police. Ex.P4 is the

confessional and recovery panchanama prepared by the police and

obtained their signatures.

23. PW.8 was working as Head Constable at Police Station,

Siddapur, at the relevant point of time. He deposed that on

12.11.2012 at about 10:00 AM, PW.1 lodged Ex.P1-report, which

was registered as Crime No.27 of 2012 for the offences under 18 AAR,J & JS,J Crl.A.No.267/2015

Section 302 and 379 of IPC. Ex.P5 is the original FIR which was

sent to committal Court. Thereafter, he recorded the statement of

PW.1. Thereafter, while he was proceeding to village Siddapur,

the Inspector of Police met him and took up CD file.

24. PW.9 is the doctor who conducted autopsy over the dead

body of the deceased. He deposed that he found the following

external injuries on the dead body of the deceased:

1. A split laceration 8x2 cms, with relatively sharp margin on the scalp behind the right ear.

2. Laceration 7x2 cms. On the occiput.

3. Laceration 3x1 cms above the right eyebrow

4. Fracture of the occipital bone.

On opening the body, he found the following internal injuries.

1. A contusion and hemorrhage in the occipital lobe of the brain and splashes of sub arachnold hemorrhage over the area of contusion and also over the greater part of both cerebral hemisphere.

He further deposed that the death of the deceased was due to

'cardio respiratory arrest due to chromatic subarachnoid

hemorrhage' within 12 to 24 hours prior to PME. Ex.P6 is the PME

report issued by him with final opinion as to the cause of death of

deceased. He further deposed that the injuries noted by him are

possible by means of MO.11-iron rod. PW.9 was cross

examined, wherein he categorically stated that the injuries found

on the deceased are possible by a fall from a considerable height.

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                                                           Crl.A.No.267/2015




25.   PW.10 is the investigating officer.    He deposed that on

12.11.2012 he received information about the subject crime from

PW.8 on phone and rushed to the place of offence at Siddapur. He

spoke about examination of PWs.2 to 4, preparation of detailed

panchanama of scene of offence, collection of blood strains from

the scene with the help of cotton, preparation of rough sketch to

scene in the panchanama, taking photographs of the dead body of

the deceased, conduct of inquest on the dead body of deceased,

collection of MOs.6 to 9 from the dead body of the deceased,

sending the dead body of the deceased for PME Examination, and

then handing over the CD file to PW.11.

26. PW.11 is another investigating officer, who laid charge-sheet

before the committal Court. He deposed that he took up the

investigation of this crime from PW.10 on 27.11.2012. On

28.11.2012 he apprehended the accused at his residence in the

village Siddapur at 02.30 PM, and on interrogation he confessed

the offence in the presence of PW.7 and another and recorded his

confession in their presence under Ex.P4 and in pursuance of

confession and at his instance, recovered MOs.1 to 4 ornaments

and MO.10-blood stained towel and MO.11-blood strained iron rod,

which were brought by him from the roof of his dilapidated house

and same were seized. On the same day, he secured the 20 AAR,J & JS,J Crl.A.No.267/2015

presence of LW.10-Padma and LW.11-Balachandri. Thereafter,

the accused was brought to the police station and his arrest was

effected. All the material objects, except MOs.1 to 4, collected

during the course of investigation were sent to the FSL with a

letter of advice of examination and report. Thereafter on his

transfer he handed over the CD file to his successor-in-office, who

after receiving the FSL report under Ex.P8 and PME report under

Ex.P6, laid charge-sheet before the committal Court.

27. Admittedly, there are no direct witnesses to the subject

incident and the entire prosecution case is based on circumstantial

evidence, mainly on the extra judicial confession made by the

accused to PW.7 and recovery of MOs1 to 4, 10 and 11, pursuant

to his confession. The evidence of PW.7 is to the effect that he

and LW.15-Niranjan were called by the police and the accused was

present at his house and the police asked them to enquire the

accused and accordingly, they enquired the accused by taking him

20 to 25 feet away from police.

28. Here, it is apt to state that admissions made by a person or

his representative in interest, though in the ordinary sense of the

term in the nature of hearsay evidence, would be admissible

admission to the extent provided in Section 21 of the Indian

Evidence Act, 1872 (for short, 'the Act'). Every confession is an 21 AAR,J & JS,J Crl.A.No.267/2015

admission, but every admission is not a confession. In other

words, admission is a genus and confession is a species. It is

settled law that a confessional statement, if not made by accused

under inducement, threat or promise, is admissible in evidence.

However, an extra judicial confession, though admissible, is

considered a weak piece of evidence and ordinarily, the Courts

would look for corroboration to such evidence, for recording

conviction on the strength of such extra judicial confession. Under

the Act, to guard against coerced or coaxed confessional

statement, in addition to the safeguards provided in Section 24 of

the Act, any confession made to a police officer under any

circumstances is also considered inadmissible in evidence, as per

Section 25 of the Act. Section 26 of the Act goes a step further

and provides that no confession made by any person whilst in

custody of a police officer, unless such confession is made in the

immediate presence of a Magistrate, can be proved against such

person. Thus, Sections 24 to 26 of the Act forms a trio containing

safeguards against an accused person, being coerced or induced to

confess guilt. One important question, in regard to which the

Court has to be satisfied with, is whether, when the accused made

the confession, he was a free man or his movements were

controlled by the police, either by themselves or through some 22 AAR,J & JS,J Crl.A.No.267/2015

other agency employed by them, for the purpose of securing such

a confession. Police custody, in real perspective, commences from

the time when the movements of the accused are restricted or

controlled and he is kept in direct or indirect police surveillance. It

is not necessary that there should have been a formal arrest. It is

not the presence of one particular person or officer or of any one

of these circumstances that would by itself decide the question as

to whether the accused was in police custody; it is, on the other

hand, the concomitance of the various facts and circumstances,

which are relevant and material, immediately preceding the

making of the statement by the accused that has to be taken into

account in making a proper assessment as to whether the

statement alleged to have been made by the accused is not hit by

Section 26 of the Act. The paramount consideration of the Court

should be to see that the statement is not hit by any of the

provisions contained in Sections 24 to 26 of the Act and it was

made voluntarily and was a true statement, which could be acted

upon, even when found admissible in evidence.

29. Tested in the light of the above broad principles, though in

the instant case the accused is stated to have been apprehended

at 02:30 PM on 28.11.2012, we find it difficult to hold that the

statement was made by the accused to PW.7 voluntarily, as a free 23 AAR,J & JS,J Crl.A.No.267/2015

agent and that it is not hit by the provisions of Section 26 of

Evidence Act, for the application of which, it makes little

difference, whether the statement was made directly to the police

officer or to any agency employed by the police for securing the

confession. PW.7 categorically deposed that police asked him and

another panch witness to enquire the accused, whereupon, they

took the accused 20 to 25 feet away from police and enquired. In

the facts and circumstances of the case, we are of the view that it

was at the instance of PW.11-investigating officer that the

questioning of the accused was made by PW.7 and that it would

tantamount to a statement made by the accused whilst in custody

of the police. Further, a perusal of Ex.P4-confession panchanama

gives an indication of the attempt of the prosecution to build a

case against accused. The extra judicial confession allegedly made

by the accused is full of facts and gives a graphic description of

what happened in his life all the years and to the nature of his act

on the day of occurrence and also mentioned about names of

persons in his Village. Thus, the extra judicial confession allegedly

made by the accused could hardly be the natural conduct of an

accused, if he is voluntarily making such a confession and thereby,

makes the extra judicial confession unbelievable. In view of these 24 AAR,J & JS,J Crl.A.No.267/2015

discrepancies, we are of the view that it is not safe to act upon the

extra judicial confession made by the accused to PW.7.

30. Yet there are other circumstances which render the

prosecution case doubtful. PW.2, in is examination-in-chief stated

that the accused used to visit the house of the deceased regularly

and attend her works. But in his cross-examination, he

categorically stated that like the accused, other villagers also used

to visit the deceased at her house. In view of the same, the

accused need not necessarily be the person to assault the

deceased, inasmuch as according to PW.2, other villagers also

used to visit the deceased at her house. Further, it is the case of

prosecution that pursuant to the alleged confession of the accused,

MOs.1 to 4, 10 and 11 were recovered. MO.11 is the iron rod

which is allegedly used in commission of offence. As rightly

pointed out by the learned counsel for the appellant/accused,

there are no fingerprints of the accused on MO.11-iron rod. In

fact, the prosecution did not even bother to obtain the fingerprints

of the accused in this case. Further, PW.11-investigting officer

deposed in his evidence that "MOs.1 to 4 ornaments and MO.10-

blood stained towel and MO.11-blood stained iron rod which were

brought by him from the roof of his dilapidated house and same

were seized." However, as per the FSL Report under Ex.P.8, there 25 AAR,J & JS,J Crl.A.No.267/2015

is a categorical finding that blood was not detected on MO.10-

towel and MO.11-iron rod. These circumstances render the usage

of MO.11-iron rod by the accused in the alleged incident doubtful

and lead to an inference with regard to false implication of the

accused in the subject crime. Further, PW.9-doctor stated in his

cross-examination that the injuries found on the dead body of the

deceased are possible by a fall from a considerable height. In the

absence of any cogent and convincing evidence that the accused

beat the deceased to death using MO.11-iron rod, the possibility of

the death of deceased by falling from a considerable height, which

is possible according to PW.9-doctor, cannot be completely ruled

out. Further, merely because the accused was moving closely with

the deceased and rendering domestic help to her; merely because

the accused was seen at the house of the deceased on the

previous night as deposed by PW.2; and merely because the

accused was seen in tension mood as deposed by PW.5, it is not

appropriate to arrive at a conclusion and hold that the accused

caused the subject death of the deceased. True it is, evidence as

to motive would, no doubt, go a long way in cases wholly

dependent on circumstantial evidence and such evidence would

form one of the links in the chain of circumstantial evidence in

such a case. However, in the instant case, a critical and analytical 26 AAR,J & JS,J Crl.A.No.267/2015

reading of the evidence led by the prosecution reflects that the

prosecution could not prove motive of the accused with certainty in

committing the alleged offence. The evidence led by the

prosecution, at the most, leads to a suspicion that the accused

might have committed the subject offence. It is settled law that

suspicion, however strong it may be, cannot take place of legal

proof and a conviction should not and cannot be based upon

suspicion.

31. The circumstances taken cumulatively do not form a chain so

complete to establish that in all human probability the subject

death was caused by the accused and none else. There is no

evidence, much less cogent and convincing evidence, to arrive at a

conclusion, which is consistent with the guilt of the accused. In

view of the above findings and the discussion, we are of the

considered opinion the prosecution failed to prove the guilt of the

accused by leading cogent and convincing evidence. In our view,

it is a fit case to extend benefit of doubt in favour of the accused

and acquit him of the offences charged against him.

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

the appellant/accused of the offences under Sections 302 and 397

of IPC vide judgment, dated 02.01.2015, passed in S.C.No.415 of

2013 by the learned IX Additional Sessions Judge, Wanaprthy, is 27 AAR,J & JS,J Crl.A.No.267/2015

set aside. Consequently, the appellant/accused is acquitted of the

offences under Sections 302 and 379 of IPC. The

appellant/accused shall be released forthwith, if he is not required

in any other case. Fine amount, if any, paid by the

appellant/accused, shall be refunded to him.

33. The Criminal Appeal is, accordingly, allowed.

Miscellaneous petitions, if any, pending in this Criminal

Appeal, shall stand closed.

____________________ A.ABHISHEK REDDY, J

___________________ JUVVADI SRIDEVI, J

29th November, 2022

KSK