Telangana High Court
Byagari Praveen A1 R.R.Dt 2 Otrs., vs State, Rep. Pp. High Court., on 29 October, 2022
Bench: A.Venkateshwara Reddy, G.Anupama Chakravarthy
HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
AND
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CRIMINAL APPEAL No.608 of 2014
JUDGMENT : (Per G.Anupama Chakravarthy, J)
This appeal is arising out of the judgment dated 06.06.2014 in
S.C.No.577 of 2012 on the file of III Additional District and Sessions
Judge, Ranga Reddy.
2. The appellants are accused Nos.1 to 3. A charge sheet is filed
against A-1 to A-3 for the offences punishable under Sections 302,
379, 376 and 201 r/w Sec.34 of IPC. The trial Court, after
considering the evidence on record, acquitted A-1 to A-3 for the
offence punishable under Section 376 of IPC but however, convicted
them for the offences punishable under Sections 379, 302 and 201
r/w. Section 34 of IPC and sentenced A-1 to undergo imprisonment
for life and to pay a fine of Rs.1,000/-, for the offence punishable
under Section 302 of IPC and in default of payment of fine to suffer
simple imprisonment for three months and further sentenced A-2 and
A-3 to undergo life imprisonment for the offence punishable under
Section 302 r/w. 34 of IPC and also sentenced to pay a fine of
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Rs.1,000/- and in default of payment of fine to suffer simple
imprisonment for three months. Further, A-1 to A-3 are sentenced to
undergo simple imprisonment for three years and also to pay a fine of
Rs.500/- for the offence punishable under Section 379 of IPC and in
default of payment of fine, to suffer simple imprisonment for one
month. Further, A-1 to A-3 are sentenced to undergo simple
imprisonment for one year for the offence punishable under Section
201 of IPC.
3. It is pertinent to mention that it is a triple murder case.
Further, all the deceased are family members. Deceased No.1 is
Geeta and deceased No.2/Chandu are the wife and son of deceased
No.3/Yadaiah. (hereinafter the deceased Nos.1 to 3 will be referred
as 'D-1, D-2 and D-3 respectively').
4. The case of the prosecution in brief is that on 10.01.2011 at
3:00 p.m. the Police of Rajendranagar, received information from the
local people that foul smell was emitting out of the house of D-3. On
that, the Inspector of Police, Rajendranagar along with his men went
to the house of D-3 and with the help of the local people broke open
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the door locks and found the dead bodies of D-1 and D-2. At about 4
p.m. PW-1 preferred report to the Police which is Ex.P-1.
5. The brief contents of Ex.P-1 are that D-1 to D-3 are residing in
the said house and D-1 and D-3 were working as mason and labour
respectively. Further, D-1 and D-3 used to quarrel with each other
now and then and D-3 used to beat D-1 after consuming alcohol. The
colony people used to intervene, in order to dissolve/settle the
quarrels between D-1 and D-3. On the eve of 'Pethara Amavasya' on
27.09.2011, the younger brother of D-1 came to her house and took
her two daughters along with him. On the same day, D-3 quarreled
with his wife/D-1. On the next day morning, i.e., 28.09.2011, they
found the house of D-3 locked and windows closed. On 01.10.2011
at around 10 a.m., they found foul smell emitting out and flies flying
around the house of D-3, for which the local people of the village
informed to the Police. The Police came, broke open the door locks
of the house and found the dead bodies of D-1 and D-2 with cut
injuries on their throat and also noticed that D-3 was absconding and
on that they have suspected that D-3 might have committed the
murders of D-1 and D-2.
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6. Basing on the report/Ex.P-1 of PW-1/Padma, a case was
registered against D-3/Yadaiah vide Crime No.860 of 2011 under
Section 302 of IPC on the file of Rajendranagar Police Station and
the Inspector of Police issued express FIRs to all the concerned. The
original FIR is Ex.P-23. On perusal of Ex.P-23, it is evident that
crime was registered against D-3, who is the husband and father of
D-1 and D-2 respectively.
7. Pursuant to the FIR, the Police prepared the scene observation
panchnama, drawn rough sketch of the scene of offence, examined
the witnesses, called dog squad to trace out the clues, shifted the dead
bodies of D-1 and D-2 to Osmania Government Hospital and further
conducted inquest over the dead bodies of D-1 and D-2 in the
presence of panchayatdars, as well as the blood relatives of the
deceased persons. Later, the dead bodies of D-1 and D-2 were
forwarded for postmortem examination to Osmania Government
hospital, Hyderabad.
8. PW-10/Dr.Parvathi conducted autopsy over the dead bodies of
D-1 and D-2 and issued postmortem reports/Exs.P-9 and P-10
respectively, opining that the cause of death of D-1 is due to head
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injury associated with other injuries and cause of death of D-2 is
caused due to cut throat injury associated with head injury.
9. The Police while making efforts to trace out the suspect/D-3
apprehended A-1 on 03.10.2011, while trying to sell one gold pustelu
and on interrogation, A-1 confessed that he along with his friends
A-2 and A-3 killed D-1 to D-3 with knives and an axe. Further, A-1
also confessed that they have committed rape on D-1 prior to her
death and stole the ornaments of D-1, locked the house and further
thrown the crime weapons into the bushes and concealed the dead
body of D-3 in the drain pond situated behind the MRO office.
Further, the confession of A-1 was that, he kept stolen gold pustelu
with him and gave one pair of ear studs to A-2 and one pair of silver
mettalu to A-3 as their share and mortgaged one pair of silver
kadilayalu, at a shop in Shamshabad. A-1 also confessed that he
along with A-3 killed a male person with a boulder in the last week
of June, 2011 beneath P.V.Narasimha Rao Express Highway and also
killed one male person named Pulagala Prakash with a boulder in the
month of August, 2011 near SBH, ATM and stolen net cash of
Rs.3,500/- which are subject matters of other crimes.
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10. Pursuant to the confession, A-1 has led the Police to the drain
pond and Police have recovered the dead body of D-3 and also
recovered the crime weapons in the presence of panchayatdars under
the cover of seizure panchnamas and forwarded the dead body of D-
3 for post mortem examination and later produced A-1 before the
Court for judicial remand. During the course of investigation, the
other accused were also arrested and their confession panchnamas
were recorded. After completion of the investigation, the Inspector
of Police, Rajendranagar Police Station, filed charge sheet against A-
1 to A-3 for the offences punishable under Sections 302, 376, 379,
201 r/w.Sec.34 of IPC.
11. During the course of the trial, charges are framed against A-1
to A-3 for the offences under Sections 302, 379, 376 and 201 r/w 34
of IPC and the same were denied by all the accused and they claimed
to be tried.
12. On behalf of the prosecution, PWs.1 to 19 were examined and
Exs.P-1 to P-27 were got marked. All the accused were examined
under Section 313 Cr.P.C. and they all denied the incriminating
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evidence of the prosecution and pleaded not guilty of the offences
charged against them.
13. The trial Court acquitted A-1 to A-3 for the offence punishable
under Section 376 of IPC alone but convicted them for the rest of the
offences charged.
14. It is contended by the learned counsel for the appellants 1 to 3
that the case is based only on the circumstantial evidence and the
prosecution has failed to prove the complete chain of circumstances
connecting the events so as to convict the appellants, therefore, the
conviction is bad in the eye of law and accordingly prayed to set
aside the judgment of the trial Court, as the prosecution has
miserably failed to prove the guilt of the appellants beyond
reasonable doubt.
15. On the other hand, the learned Public Prosecutor contended
that pursuant to the confession of the appellants recovery of crime
weapons used by the appellants and also the ornaments of D-1 were
recovered and therefore, the trial Court has rightly convicted the
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appellants and therefore prayed to dismiss the appeal as devoid of
merits.
16. Perused the record.
17. The point for determination in this case is;
"Whether the trial Court is proper in convicting A-1 to
A-3 for the offences punishable under Sections 302, 379
and 201 r/w. 34 of IPC and whether the prosecution is
able to prove the guilt of the appellants beyond
reasonable doubt for the aforesaid offences?"
18. It is important to note that without there being any report or
case being registered, the Police have come to the scene of offence
and later got the report from PW-1. The record does not reveal from
whom the Police have received information, as to the foul smell
being emitted out of the house of deceased. Admittedly, the Police
have gone to the scene of offence, broke open the door locks of the
house of the deceased and found the dead bodies of D-1 and D-2 in
the house and later received report from PW-1, basing on which a
case was registered against the husband of D-1 i.e., Yadaiah/D-3.
Initially, Ex.P-1 report as well as the 161 statements of the villagers
and the statements of the blood relatives of the deceased reveal
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suspicion that Yadaiah/D-3 might have committed the murders of D-
1 and D-2 and the motive for the offence is shown as the quarrels
between D-1 and D-3 (wife and husband).
19. The entire case of the prosecution has changed, basing on the
confession statement of A-1 initially and later on the confessions of
other accused. It is pertinent to mention that as per the confession
statements of A-1 to A-3, they have committed rape against D-1 prior
to committing murder of D-1 and D-2. Except the confession of the
appellants, there is no material on record to prove the said offence
and the trial Court has rightly acquitted the appellants for of the
offence punishable under Section 376 of IPC.
20. It is also relevant to mention that the motive for the offence as
per the case of the prosecution is that there were disputes between A-
1 and the deceased family members for which, A-1 conspired with A-
2 and A-3 to do away the lives of the deceased. But, 161 statements
of the witnesses which were recorded by the Police during the course
of investigation do not reveal these facts and all the statements
disclose that they had suspicion over D-3, who might have
committed murders of D-1 and D-2.
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21. On perusal of the record, it is evident that there are no eye
witnesses to the incident and entire case rests on the circumstantial
evidence. Further, it can be construed that the entire case is based on
the confession statements of A-1 and later based on the confessions
of A-2 and A3. The record also reveals that the "last seen theory" is
missing in this case. None of the witnesses deposed before the Court
about the motive for the offence or that the accused and the deceased
were last seen together prior to the murders of D-1 to D-3 or the
accused were found nearby the house of the deceased, prior to the
offence.
22. It is necessary to scrutinize the oral and documentary evidence
on record except the confession statements of the accused, to know
whether there is any incriminating evidence on record to prove the
guilt of the appellants beyond reasonable doubt.
23. The criminal law was set into motion basing on the
information given by PW-1/G.Padma, who was residing opposite to
the house of the deceased. Her evidence disclose that she found the
foul smell emitting out of the house of deceased and informed the
local people, who in turn informed the Police, who came to the scene
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of offence and broke open the door locks of the house of the
deceased and found the dead bodies of D-1 and D-2. As already
stated supra Ex.P-1 is the report of PW-1. The photographs of the
dead bodies of D-1 and D-2 and the scene of offence are Ex.P-2. She
further testified that she came to know about the death of D-3
subsequently and opined that the persons who killed D-1 and D-2
might have killed Yadaiah/D-3. PW-1 stated that they found dead
body of Yadiah in a pit behind MRO office in highly decomposed
state and a stone was tied with a rope to the waist of D-3. Ex.P-3 are
the photographs of D-3. MO-1 is the granite stone which was found
tied to the waist of D-3. In the cross examination, PW-1 specifically
deposed that Yadaiah used to consume alcohol and quarrel with his
wife and in that connection, a panchayat was also held and that she
saw Yadaiah/D-3 and Geeta/D-1 two days prior to Ex.P-1 report.
24. PW-2 is the mother of D-1. It is specifically testified by PW-2
that she came to know that the culprits committed theft of 40 tulas of
silver leg kadas and one tula of gold from the dead body of D-1.
MOs-2 to 5 were marked through her which are alleged to be the
ornaments of D-1. In the cross examination, it is testified by PW-2
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that Yadaiah was addicted to alcohol and used to harass her daughter
and in that connection a panchayat was held.
25. The evidence of PW-3 who is the sister of D-1 is also in the
same manner as that of PW-2.
26. The evidence of PW-4 who is the Pastor of the Church disclose
that he went to the scene of offence after coming to know about the
murders of D-1 and D2 but by that time the dead bodies of D-1 and
D-2 were shifted in an Auto and also came to know that the husband
of D-1 was not in the house since three days.
27. The evidence of PW-5 who is the cousin of D-3 discloses that
he went to the scene of offence after knowing about the murders of
D-1 and D2 and found the dead bodies of D-1 and D-2 with injuries.
He also stated that the bodies were shifted to Government Hospital
for post mortem examination. It is specifically testified by PW-5 that
he received a phone call from the Inspector of Police, who gave him
information about the dead body of D-3 in a pit behind MRO Office,
Rajendranagar and on that he went to the MRO Office and found A-1
along with the Police and also came to know that there was a dispute
between A-1 and D-3 with respect to the wall which is between the
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house of A-1 and Yadaiah/D-3 and on that A-1 along with two others
killed D-3. Further, his evidence disclose that A-1 and two others
committed rape on D-1, killed her, stolen away her gold ear tops and
gold pustelu and after committing the offence, they locked the doors
from outside and absconded and also came to know that A-1 was
apprehended by the Police and A-1 confessed his guilt of committing
the offence.
28. PW-6 is one of the colony members. Her evidence disclose
that she knew A-1 and A-2 and also the deceased persons. For the
first time PW-6 deposed that there was quarrel between D-1 and
sister of A-1 with respect to a wall and came to know about the
murders of D-1 and D-2 and that D-3/Yadaiah killed them.
29. As PW-6 turned hostile, she was cross-examined by the
learned Public Prosecutor. During the cross-examination, PW-6 did
not state about the foul smell coming out of the house of Yadaiah to
the Police and the said portion of the 161 statement of PW-6, is
marked as EX.P-2.
30. PW-7 is also the resident of the locality. His evidence
discloses that A-1 used to consume liquor and quarrel with
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Yadaiah/D-3. After coming to know about the dead bodies of D-1
and D-2, he went to the scene of offence and found the dead body of
D-1 in porn/nude state and Police covered her body with a saree and
they all thought that Yadaiah might have murdered D-1 and D-2.
Three days later, he came to know about the dead body of
Yadaiah/D-3 being found in the pit behind MRO office and later
came to know that A-1 and two others killed Yadaiah, committed
rape on D-1 and took away her gold ornaments. In the cross-
examination, it is specifically deposed by PW-7 that he saw D-1 two
days prior to the incident and was under the impression that she left
to her parent's house. Further, his evidence also disclose that the hut
of A-1 was burnt in a fire accident and as such, the Government has
reconstructed the house of A-1.
31. It is important to note that the evidence of PWs-2 to 7 is a
hearsay evidence and it is no way helpful for the prosecution to prove
the guilt against the appellants.
32. The evidence of PW-8 who is one of the ward member of the
locality disclose that she went to the scene of offence and found the
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dead bodies of the deceased and she signed on the scene observation
panchnama and rough sketch which are Exs.P-5 and P-6 respectively.
33. The evidence of PW-9 disclose that he acted as panch witness
for the inquest panchnamas of the dead bodies of D-1 and D-2
which are Exs.P-7 and P-8 respectively. It is opined by the inquest
panchayatdars that D-1 and D-2 were murdered.
34. On perusal of inquest reports i,e.,Exs.P-7 and P-8, it is evident
that column No.15 of inquest panchnama disclose that Yadaiah, the
husband of D-1 used to quarrel with D-1 often and on 28.09.2011,
there was a quarrel between D-1 and D-3 and later found the house of
the deceased locked and further on 01.10.2011 at 10 a.m., PW-1
found foul smell emitting out of the house and also saw house flies
swarming in front of the house, which was reported to the Police and
when the locks of the doors were broke open, they found the dead
bodies of the D-1 and D-2 with injuries and as there was no trace of
D-3 till 01.10.2011 and as such they suspected that D-3 intentionally
murdered D-1 and D-2 and absconded.
35. Admittedly, the death of the deceased 1 and 2 is not a natural
death. The evidence of the Doctor i.e. PW-10 clearly disclose that
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she conducted autopsy over the dead bodies of D-1 and D-2 on
02.10.2011 after receiving the requisition from the Station House
Officer, Rajendranagar. She found the following injuries over the
dead body of deceased Geeta/D-1:-
"External injuries:
1.
Cut injury 5 x 2 cms x muscle deep on the midline of
forehead.
2. Cut injury 3 x 0.5 cms x muscle deep 1 cm outer to the
injury No.1 on right side of forehead and eyebrow and
right eye contused.
3. Cut injury 3 x 0.5 cms x eye lid deep on the left in
surrounding contusion 6 x 4 cms.
4. Laserated wound 3x 1 cm x upper lip deep on midline of
upper lip with upper incesor or teeth loss.
5. Cut injury 10 x 3 cms x sub cuteneous tissue deep on the
front of the neck, transversely placed, which extending
from 3 cms below right angle of mandible 5 cms, below
chin and upto 3 cms, below the mid mandibler point of
the left side of the neck, margins clean cut. All the above
injuries are dark red and fresh, other superficiary injuries
are could not be made out due to decomposition changes
of the body.
6. Scalp contusion 10x 4 cms, on fronto parital area of
reddish in colour on right temporalis musche contused.
7. Commuted fractures of frontal bone, fracture line
extending into right anterior cranial fosa to the left
middle cranial fosa, over a total length of 7 cms.
8. Brain liquidified and reddish pink in colour.
PW-10 testified that all the internal organs are softened, neck
structures are softened, thyroid and cartilage are intact. Uterus
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normal size and on cut section nothing is found. On cut section of
stomach, empty no specific smell of mucosa softened.
36. Further, she found the following injuries on the dead body of
the deceased No.2/Chandu:-
1. Contused abrasions 6x 4 cms, on frontal area of head,
dark red and fresh.
2. Cut throat wound meshed in 12x 5 cms, on front of neck
which extending from 2 cms below the right angle of
mandible, 5 cms below chin, 2 cms below left angle
mandible, transversely placed, underneath the cut injury,
neck structures-skin, subcutaneous tissues, trachea,
osephageus, thyroid and hyoid cartilages, blood vessels
and muscles are cut off, margins are clinkered and angles
are acute, dark reddish in colour.
3. Scalp contusions, 10 x 6 cms, on frontal and left
temporal area of head, dark reddish in colour.
4. Both the middle cranial fossa and left cranial fossa of the
base of the skull bones are fractured.
5. Brain liquidified and reddish pink in colour.
37. It is opined by PW-10 that the cause of the death of D-1 is due
to head injury associated with head injuries and the cause of the death
of D-2 is due to cut throat injury associated with head injury and
Exs.P-9 and P-10 are post mortem reports of D-1 and D-2
respectively.
38. It is specifically deposed by PW-10 that all the injuries found
over the dead bodies of the deceased persons are ante-mortem in
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nature and the approximate time of death of the deceased persons
would be 3 - 5 days prior to her conducting of postmortem
examination i.e. on 02.10.2011 by 11:15 a.m.
39. Hence, it can be construed that the death of the deceased
persons 1 and 2 is a homicide. As stated supra, there is no direct
evidence against the appellants except the confession statement of A-
1. The prosecution has entirely relied on the recovery made by the
Police pursuant to the confession of A-1.
40. PW-11 is the panch witness to the confession of A-1, for the
inquest of D-3/Yadaiah, for the scene of offence of D-3 dead body,
for recovery panchnama and for seizure report. His evidence
disclosed that on 03.10.2011 he was called by the Police and when he
reached the Police Station, he found A-1 along with the Police and
that A-1 confessed his guilt to the Police.
41. Admittedly, the confession of the accused to the Police is hit
by Section 25 of the Indian Evidence Act 1872 (for short 'the Act').
It is further testified by PW-11, that pursuant to the confession, A-1
had led them to the MRO office, produced the knife hidden under a
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big stone which was seized by the Police i.e MO-6. The towel and
shirt of A-1 are MO-7 and MO-8. Ex.P-11 is the admissible portion
of confession panchnama of A-1. Ex.P-12 is the scene identification
panchnama. Ex.P-13 is the rough sketch of the scene of offence from
where the dead body of D-3 was recovered. Ex.P-14 is the seizure of
articles from A-1. Ex.P-15 is inquest report of D-3.
42. PWs-12 and 14 are the panch witnesses to the confession of A-
2 and A-3 and for the seizure reports. The evidence of PW-12
disclosed that on 30.11.2011, he was called by the Police and when
he reached the Police Station, he found A-2 and A-3 along with the
Police and they confessed their guilt of committing the offence to the
Police. Further, the Police have seized silver leg toe rings from A-2
and gold ear tops from A-3. MO-9 is the knife, MO-10 is the shirt
which was seized under the seizure report Ex.P-17. Ex.P-16 is the
admissible portion of confession panchnama of A-2. Ex.P-18 is the
admissible portion of confession panchnama of A-3.
43. PW-14 also deposed as of PW-12. His evidence further
disclose that Police seized MO-5 from A-2 and MO-4 from A-3 and
MO-11 is an Axe and MO-12 is blood stain shirt of A-2.
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44. PW-13 is the Doctor who conducted postmortem examination
of the deceased K.Yadaiah/D-3. His evidence disclose that on
03.10.2011 at about 2:45 p.m. he conducted autopsy over the dead
body of D-3 and found the following anti-mortem injuries:-
1. Laceration of 9 x 4 cms bone deep transverse present
3 cms above the right eyebrow on right frontal regions.
2. Contusion of 12 x 7 cms, present over the left parital
region.
3. Multiple rib fractures present over the left side of the
chest.
His evidence further disclosed that he preserved viscera of D-3 and
sent the same for chemical analysis to the Forensic Laboratory and
the cause of death of D-3 was due to head injury. Ex.P-20 is the
postmortem report of D-3.
45. It is important to note that as per the confession of A-1 to A-
3, the testicles and penis of D-3 were cut with a knife. On perusal of
Ex.P-15, the inquest report, it is evident that the body has no penis or
testicles. Surprisingly, Ex.P-20, postmortem report does not disclose
the said aspect of non-presence of testicles and penis over the dead
body of D-3.
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46. PW-15 is the Sub-Inspector of Police who received the phone
call from an unknown person on 01.10.2011 at 2 p.m. and rushed to
the spot along with the staff, broke open the door lock of the house of
deceased and found the dead bodies of D-1 and D-2 and further
received complaint from PW-1 and registered the case in Crime
No.860 of 2011 under Section 302 of IPC and issued FIRs to all and
the original FIR is Ex.P-23.
47. PW-16 is the Doctor who gave opinion to the Inspector of
Police as to the possibility of sexual violation against D-1 which is
Ex.P-24. Ex.P-24 reveals that the dead body of D-1 was recovered in
a highly decomposed state and it is also opined by PW-16 that the
possibility of sexual violation cannot be ruled out unless and
otherwise proved contrary. It is relevant to mention that PW-11 gave
opinion basing on the PM report as well as inquest report of the
deceased No.1, but he has not physically seen the dead body of D-1.
It is important to note that the Police have sought the opinion of PW-
16 basing on the alleged confession of A-1.
48. PW-17 is the head constable-CID of dog squad. His evidence
disclose that he proceeded to the scene of offence (house of the
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deceased) with a dog and found two dead bodies. The dog smelled
the dead bodies and the surroundings and proceeded to the bathroom
behind the house and from there, they went to MRO office and came
back to the house of the deceased and stood in front of the house of
the deceased. Further, PW-17 added that if culprits left the place on
any vehicle, the trackered dog cannot trace out.
49. The evidence of PW-16 and PW-17 are in no way helpful for
the prosecution to prove the guilt of the accused.
50. PW-18 is the Inspector of Police, Rajendranagar. His evidence
disclose that he received information from PW-15 about the dead
bodies of D-1 and D-2 and also with regard to receiving of complaint
report from PW-1. He testified that he proceeded to the scene of
offence and contacted CID for dog squad, recorded the statements of
the witnesses, prepared rough sketch of scene of offence, forwarded
the dead bodies of D-1 and D-2 to the Government Hospital,
conducted inquest over the dead body of the deceased and later,
forwarded them for postmortem examination. MOs-15 to 19 are the
clothes belonging to D-1 and D-2 respectively.
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51. It is specifically deposed by PW-18 that on 03.10.2011, he
apprehended A-1 who was trying to sell the stolen property and on
interrogation, A-1 confessed his guilt of committing murders of D-1
to D-3 along with A-2 and A-3 and pursuant to the confession, he
recovered the dead body of D-3 from the pit behind the MRO office
and also recovered the crime weapons including material objects and
further also apprehended A-2 and A-3 and also recorded their
confession statement. His evidence further disclose that he produced
the accused before the Court for judicial remand, got the opinion
from PW-16 as to the sexual assault against D-1 and after receiving
the medical reports and FSL reports, he laid charge sheet against all
the accused for the aforesaid charges.
52. PW-19 is the Sub-Inspector of Police who have apprehended
A-1 on 03.10.2011 and brought him to the Police Station, who was
further interrogated by PW-18.
53. On perusal of the entire evidence on record, there is no iota of
evidence on record to prove that the appellants have shifted the dead
body of D-3 from the house of the deceased to the drain pit which is
behind the MRO office in order to screened away the evidence and
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therefore, it can be construed that the trial Court has erred in
convicting the appellants for the offence punishable under Section
201 of IPC, which is liable to be set aside.
54. Further, there is no direct eye witness in this case and the case
of the prosecution is based on the circumstantial evidence.
Admittedly, the evidence of PWs.2 to 7 is a hearsay evidence. PWs-
8 and 9 are panch witnesses to the scene of offence and inquest of
D-1 and D-2. The evidence of PWs-2 to 9 clearly disclose that they
all suspected that D-3 might have committed the murders of D-1 and
D-2. Moreover, the Police have registered a case against
D-3/Yadaiah basing on the report of PW-1.
55. As already stated supra, except the confession statements of
the appellants there is no other material on record to prove that A-1
to A-3 have committed the murders of D-1 to D-3. The prosecution
has relied on the recoveries alleged to have been made from A-1 to
A-3 i.e., the crime weapons including the ornaments of D-1 pursuant
to the confession of A-1.
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56. Surprisingly, the Police have not conducted test identification
parade of the property in order to connect the crime with that of the
accused. It is the case of the prosecution that the gold ornaments of
the deceased are recovered from A-1 to A-3 basing on their
confessions. The 161 statements of blood relatives of the deceased
such as mother, sister (PWs-2 and 3) do not disclose that ornaments
of the deceased were lost and murders were committed for gain of
property.
57. Further more, Rule 35 of Criminal Rules of Practice envisages
as under:-
"1. Identification parades of properties shall be held in
the court, the Magistrate where the properties are
lodges,
2. Each item of the property shall be put up separately
for the parade. It shall be mixed up with four or
similar objects.
3. Before calling upon the witnesses to identify the
property, he shall be asked to state identification
marks of his property. Witnesses shall be called in
one after the other and on leaving shall not be
allowed to communicate, with the witnesses not yet
called."
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Crl.A.No.608 of 2014
58. But the said Rule was not followed in the present case as to the
identification of the properties of the deceased No.1 which are
alleged to be recovered from A-1 to A-3. Hence, it can be construed
that the prosecution has miserably failed to connect the material
objects which are alleged to be seized from the appellants with that of
the deceased ornaments covered under MOs.2 to 5.
59. It is also relevant to mention at this juncture, that LW-13,
S.Ashok Kumar, who is the owner of the jewelry shop of Sri Krishna
Money Lender and Pawn Broker is cited as witness in the
chargesheet who alleged to have received MO-2, silver leg kadas on
mortgage from the appellants but he was not examined before the
Court for the best reasons known to the prosecution. In a case of
circumstantial evidence, all the events are to be linked so as to form a
chain of complete ring. The non-examination of LW-13, S.Ashok
Kumar is a fatal to the case of the prosecution as it the most
important evidence to connect the accused with that of the crime.
60. The Police have not filed any charge sheet against the accused
for the offence punishable under Section 404 of IPC. Admittedly, it
is the case of the prosecution that after committing rape on D-1, the
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accused have murdered D-1 and committed theft of the property from
the dead body of D-1.
61. Section 404 of the Indian Penal Code reads as under:-
"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. Illustration Z dies in possession
of furniture and money. His servant A, before the money
comes into the possession of any person entitled to such
possession, dishonestly misappropriates it. A has commit-
ted the offence defined in this section".
62. It is also relevant to mention that a charge is framed under
Section 379 of IPC against A-1 to A-3 for the punishment specified
under Section 378 of IPC. Section 378 of IPC reads as follows:-
"Theft.--Whoever, intending to take dishonestly any
moveable property out of the possession of any person
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without that person's consent, moves that property in order to
such taking, is said to commit theft".
63. As already stated supra, the charge under Section 379 of IPC
can only be applicable if any movable property was taken from the
possession of the person without his/her consent. But it is the case of
the prosecution that A-1 to A-3 have misappropriated the gold
ornaments from D-1, after her death. Therefore, there cannot be any
charge against A-1 to A-3 for the offence punishable under Section
379 of IPC. The trial Court ought to have framed a charge against A-
1 to A-3 for the offence punishable under Section 404 of IPC instead
of Section 379 of IPC. Therefore, the conviction and sentence
imposed against appellants under Section 379 of IPC is liable to be
set aside.
64. Initially, the case was registered against D-3. It is the case of
the prosecution that A-1 confessed about committing the murders of
D-1 to D-3. Neither the charge sheet nor the evidence of PW-18
disclose about altered FIR of Alteration Memo filed against A-1 to
A-3.
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Crl.A.No.608 of 2014
65. In State of U.P. v. Dr.Ravindra Prakash Mittal1, the Apex
Court held as under :
"The essential ingredients to prove guilt of an accused
person by circumstantial evidence are: (1) The
circumstances from which the conclusion is drawn
should be fully proved; (2) the circumstances should be
conclusive in nature; (3) all the facts so established
should be consistent only with the hypothesis of guilt
and inconsistent with innocence; (4) the circumstances
should, to a moral certainty, exclude the possibility of
guilt of any person other than the accused.
.....As pointed out supra, there is no direct evidence to
connect the respondent with this offence of murder and
the prosecution entirely rests its case only on
circumstantial evidence. There is a series of decisions
of this Court so eloquently and ardently propounding
the cardinal principle to be followed in cases in which
the evidence is purely of circumstantial nature. We
think, it is not necessary to recapitulate all those
decisions except stating that the essential ingredients to
prove guilt of an accused person by circumstantial
evidence are:
(1) The circumstances from which the
conclusion is drawn should be fully proved;
(2) the circumstances should be conclusive in
nature;
(3) all the facts so established should be
consistent only with the huypothesis of
guilt and inconsistent with innocence;
(4) the circumstances should, to a moral
certainty, exclude the possibility of guilt of
any person other than the accused.
(1992) 3 SCC 300
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66. The above proposition squarely apply to the present facts and
circumstances of the case. The circumstantial evidence must always
be direct, i.e., the facts from which the existence of fact in issue is to
be inferred must be proved by direct evidence.
67. Further, in the present case, except the confession statements
of A-1 to A-3, there is no other evidence on record and the
prosecution has miserably failed to connect the crime with that of the
accused basing on the recoveries made by them under Section 27 of
the Indian Evidence Act.
68. Basing on the evidence on record, it can be construed that the
prosecution has miserably failed to prove that the appellants have
committed the murders of D-1 to D-3 for the offence punishable
under Sections 302 of IPC or of Section 379 and 201 of IPC as
discussed supra. The cardinal principles of criminal law is that
"1. The prosecution has to prove the guilt of the
accused beyond reasonable doubt.
2. The accused shall be deemed as innocent till the
guilt is proved."
69. In the absence of proper oral and documentary evidence, the
accused cannot be held guilty for the offences basing on the surmises
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and premises. On perusal of the judgment of the trial Court, it is
evident that burden was shifted on the accused and the finding of the
trial Court is that the accused have failed to explain their innocence
when they are examined under Section 313 of Cr.P.C. In a criminal
case, the burden is always on the prosecution to prove the guilt of the
accused, except for the offences which are taken under Chapter IV
General Exceptions under Sections 76 to 106 of IPC.
70. In the present case, the appellants have not taken any plea
under Sections 76 to 106 of IPC and therefore, the trial Court erred in
giving a finding that the accused failed to prove their innocence.
Further, the chain of events is not connected and there are missing
links. Hence, the conviction of the trial Court is not sustainable.
71. Accordingly, the appeal is allowed setting aside the judgment
of the trial Court in S.C.No.577 of 2012 dated 06.06.2014 on the file
of III Additional District and Sessions Judge, Ranga Reddy. The
appellants are acquitted of the offences punishable under Sections
302, 379 and 201 r/w Section 34 of IPC. They shall be released
forthwith, if not required in any other crime. The bail bonds of
appellants shall stand cancelled.
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Crl.A.No.608 of 2014
Pending miscellaneous applications, if any, shall stand closed.
_______________________________
A. VENKATESHWARA REDDY, J
________________________________
G.ANUPAMA CHAKRAVARTHY, J
Date: 29.10.2022
Note:
Judgment be forthwith
communicated to the Superintendent,
of Jail concerned.
(B/o) dv
Issue CC today.
