Nadikuda Kistaiah, R.R.Dt., vs State, Rep. Pp And Anr.,
2023 Latest Caselaw 271 Tel

           HON'BLE DR. JUSTICE G. RADHA RANI
                           AND
     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

                CRIMINAL APPEAL No.40 of 2014

JUDGMENT:(Per GAC, J)

        This appeal is arising out of the judgment dated 07.08.2013

in S.C.No.765 of 2012 on the file of the Additional Metropolitan

Sessions Judge, Cyberabad.


2.      The appellant is the sole accused. A charge sheet was filed

against the accused for the offence punishable under Section 302 of

IPC. The trial Court, after considering the evidence on record,

convicted the appellant under Section 235(2) of Cr.P.C. for the

offence punishable under Section 302 of IPC and sentenced him to

undergo imprisonment for life and to pay a fine of Rs.1000/-, and

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

a period of one month.


3.      The brief case of the prosecution is that 15 days prior to the

incident, the deceased and accused went to the dairy/poultry farm

of PW-1 to work as labourers and lived in the tin shed of the
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dairy/poultry farm. On the date of incident i.e. 04.04.2012, at 7.30

p.m., the accused and the deceased, in drunken state, were

quarrelling with each other, for which, PW-1 admonished them and

went to his house. On the next day, at about 04.30 a.m., PW-3,

who is the father of PW-1, visited the dairy/poultry farm, found the

accused not available in the shed but found the dead body of the

deceased in sleeping position and on that he made a call to PW-1,

about the incident. On that, PW-1 rushed to the dairy/poultry farm,

noticed the dead body and preferred report/Ex.P-1 to the Station

House Officer, Maheshwaram Police Station, for which, PW-12

registered a case in Crime No.77 of 2005, for the offence

punishable under Section 302 of IPC and issued FIRs to all the

concerned. The original copy of the FIR received by the Court is

Ex.P-16. Further, PW-11/ Circle Inspector of Police conducted

investigation in this case.


4.    During the course of investigation, PW-11/investigating

officer conducted inquest panchanama over the dead body of

deceased in the presence of panchayatdars prepared the crime

detail form and later forwarded the dead body of the deceased for
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postmortem examination. Further, he recorded the statements of

the prosecution witnesses and collected M.Os.1 to 3 from the scene

of offence.


5.    It is pertinent to mention that PW-8/Tahsildar recorded the

extra-judicial confession statement of the accused, wherein, the

accused was said to be produced before her by PW-11. Later, the

accused was produced along with the extra-judicial confession

statement before the PW-11/investigating officer, who in turn,

effected arrest of the accused and later produced the accused before

the Court for judicial remand.


6.    The Doctor/PW-9 who conducted postmortem examination

over the dead body of the deceased, found 12 external injuries on

the dead body of the deceased and issued portmortem examination

report/Ex.P-12. Further, basing on the FSL report i.e. Ex.P-13, he

also gave final opinion under Ex.P-14 in which he opined that the

cause of the death of the deceased was due to head injury,

associated with other injuries and no poisonous substance was

found in the viscera. After receiving the postmortem report of the
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deceased and on completion of the investigation, the investigating

officer filed a charge sheet against the accused for the offence

punishable under Section 302 of IPC.


7.    During the course of trial, a charge was framed against the

accused for the offence punishable under Section 302 of IPC, read

over and explained to him, for which, he pleaded not guilty and

claimed to be tried.


8.    On behalf of the prosecution, PWs.1 to 13 were examined

and Exs.P-1 to P-16 and M.Os.1 to 6 are marked. The accused was

examined under Section 313 Cr.P.C. and he denied the

incriminating evidence of the prosecution and pleaded not guilty

for the offence charged.


9.    It is relevant to mention the relationships between the

witnesses for better appreciation of the facts. The deceased is

alleged to be the 2nd wife of the accused. PW-1 is the owner of the

dairy/poultry farm in which, the deceased and accused were

working and residing together, since 15 days prior to the offence.

PW-2 is the daughter of the deceased, who was born through her
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first husband.   PW-3 is the father of PW-1.          PW-4 is the

Photographer, who took the photographs of the deceased, near the

scene of offence, at the instance of PW-11/investigating officer,

which are marked as Exs.P-2 to P-4. PW-5 is the niece of the

accused, who turned hostile and Ex.P-5 is her statement recorded

by the Police under Section 161 Cr.P.C. PW-6 is the panchayatdar

for scene of offence, rough sketch and inquest panchanama of the

deceased, which are EXs.P-6 to P-8 respectively. It is relevant to

mention that PW-6 is the mother and wife of PWs.1 and 3

respectively. M.Os.1 to 3 are alleged to have been seized from the

scene of offence i.e. bed sheet, wooden stick and the sickle, which

are alleged to contain the blood stains of the deceased. PW-7 is the

panchayatdar to the confession of the accused, to the Police, in the

Police Station and the confession statement is marked as Ex.P-9. It

is relevant to mention that M.Os.4 to 6/the cloths of the accused

and a stick were shown as recoveries pursuant to the confession of

the accused.


10.   It is important to note that confession to the Police is hit by

Section 25 of Indian Evidence Act. The evidence of PW-7 clearly
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disclose that on 09.04.2012 at 2.00 p.m., he along with one

A.Subhash were called to Police Station and at that time, the

accused was in the custody of the Police and on interrogation, the

accused admitted his guilt about commission of the offence by

using a sickle and stick and pursuant to the confession, the material

objects were seized by the Police under Ex.P-10. In the cross-

examination, PW-7 specifically stated that he cannot identify the

material objects, due to lapse of time.


11.   PW-8 is the Tahsildar and her evidence disclose that on

09.04.2012 at about 11.00 a.m., PW-10 produced the accused

before her and the accused confessed his guilt of committing the

murder of the deceased which was recorded by VRO/Papaiah i.e.,

Ex.P-11. Later, the accused was handed over to the Police. In the

cross-examination, PW-8 testified that the Police came to her

office, after the arrival of the accused and later the accused was

handed over to the Police.


12.   As already stated supra, PW-9 is the Doctor who conducted

autopsy over the dead body of deceased, forwarded the viscera to
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RFSL and after receiving the FSL report i.e. Ex.P-13, issued final

opinion as to the cause of the death of the deceased.


13.   PW-10 is the person who is said to have produced the

accused before PW-8 and on that, PW-8 recorded the extra-judicial

confession statement of the accused. PW-10 turned hostile and the

161 Cr.P.C. statement of PW-10 is marked as Ex.P-15.


14.   PWs.11 to 13 are the Police officials in this case. PW-12 is

the SI who registered the case, PW-11 is the investigating officer

who conducted the entire investigation and PW-13 is another

Inspector of Police who received FSL report and Post Mortem

Examination report from the Doctor, verified the investigation and

laid charge sheet against the accused.


15.   Heard the legal aid counsel Sri Mettu Goverdhan Reddy for

the appellant and the learned Additional Public Prosecutor.

Perused the record.


16.   It is urged by the learned counsel for the appellant that there

is no direct eye witness to the incident and the trial Court convicted
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the appellant basing on the testimonies of PWs.1 to 3 and solely on

the extra-judicial confession statement of the accused, recorded by

PW-8. It is further contended by the counsel that the trial Court

ought to have acquitted the accused, as the chain of events did not

form a circle and there are missing links in the chain of events,

which is the most important ingredient in a case of circumstantial

evidence, and therefore, prayed to set aside the conviction passed

by the Court below.


17.       In order to support his contentions, the learned Counsel for

the appellant (Legal Aid Counsel Mr.M.Goverdhan Reddy) relied

on the judgment of Hon'ble Supreme Court in Boya Akuthota

Nagaraju Vs. State rep. by Public Prosecutor, High Court of

A.P.1, wherein, their Lordships have held as under:

          "Extra-judicial confessions, if inspires confidence of
          Court and true version of the accused is mentioned on
          extra-judicial confession, conviction can be recorded
          if corroborated by other circumstances. But, extra-
          judicial confession itself alone cannot form the basis
          for conviction and such conviction is illegal. Before
          touching the evidentiary value of the extra-judicial
          confession, the Court must look into various
          circumstances like prior acquaintance with the


1
    (2018) 2 ALT (Cri.) 290 (DB)
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         persons with whom the accused allegedly gave
         statement and whether it is voluntary in nature."

18.      On the other hand, the learned Public Prosecutor contended

that the prosecution has proved the guilt of the appellant beyond

reasonable doubt and prayed to confirm the judgment of the trial

Court.

19.      Now, the point for determination is;

         Whether the trial Court is correct in convicting the
         accused/appellant for the offence punishable under
         Section 302 of IPC and whether the prosecution has
         proved the guilt of the appellant beyond reasonable
         doubt for the said offence?

20.      The criminal law was set into motion basing on the

information given by PW-1, who is the owner of the dairy/poultry

farm.     The report given by him is Ex.P-1.      It is important to

mention that the entire case of prosecution rests on circumstantial

evidence as none of the witnesses witnessed the alleged murder

that is said to have been committed by the appellant.


21.      In order to prove an offence punishable under Section 302 of

IPC, it is for the prosecution to prove that the death of the deceased

is caused by the accused maliciously, with a specific motive, the
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bodily injury caused by the offender is within the knowledge that

such an injury might cause the death of the deceased and further,

the injury inflicted is sufficient to cause the death of the deceased.


22.   The evidence of PW-9/Doctor is crucial to prove whether the

death of the deceased is homicidal or natural.           His evidence

discloses that on 05.04.2012 at about 3.30 p.m., he received

requisition from Maheshwaram Police Station, to conduct

postmortem examination on the dead body of the deceased, named

Bhagyamma. Accordingly, she conducted autopsy over the dead

body of the deceased and found the following external injuries:

      1.

Abrasion 3 X 2 cm on midline of forehead.

2. Abrasion 3 X 2 cm on the lower part of left cheek near mandibular area.

3. Lacerated wound 3 X 1 cm into scalp deep on the left occipital area of the head.

4. Abrasion 2 X 2 cm on the left side back of the neck.

5. Abrasion 5 X 2 cm on the back side of left upper chest.

6. Contusion 22 X 20 cm on the back side of the chest.

7. Contusion 22 X 20 cm on the left buttock.

8. Contusion 30 X 10 cm on back side of left arm and fore arm.

9. Abrasion 3 X 2 cm on the back side of middle 3rd of left fore arm (all the above injuries are red and fresh)

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

10. Scalp contusion 6 X 6 cm on the left perital area, contusions 8 X 6 cm on the left occipital area and another contusion 4 X 3 cm on the left temporal area with temporalis. Muscle contused reddish blue in colour.

11. Subdural hemohrages over brain.

12. 1st to 7th ribs fractures at mid axillary line on the right side of the chest. 4th to 12th ribs fractures at the posterior axillary line on the left side of the chest with surrounding inter-coaster muscle lines contused.

All the injuries are ante-mortem in nature.

23. The postmortem report of the deceased is Ex.P-12. Her

evidence further disclose that she preserved the viscera of the

deceased and handed over the same to the Police in order to

forward the same to Regional Forensic Science Laboratory (RFSL)

for chemical analysis. Ex.P-13 is the RFSL report which disclose

that there is no poisonous substance found in the viscera of the

deceased. Ex.P-15 is the final opinion given by her, it is opined

that the cause of the death of the deceased is due to head injury

associated with other injuries.

24. On perusal of Exs.P-12 to P-14, it can be construed that the

death of the deceased is a homicide and it is not a natural one. The

cardinal principles of the criminal justice system are that:

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

1. The burden is always on the prosecution to prove the guilt

of the accused.

2. Accused shall be presumed to be innocent till the guilt

is proved.

25. Basing on the said cardinal principles, it is for the

prosecution to prove that the appellant has committed the murder

of the deceased. The evidence of PWs.1 to 3 only disclose that the

deceased and the accused are living together as husband and wife

and they came to the dairy/poultry farm of PW-1 prior to 15 days

of the incident and were staying in the tin shed. Further, the

evidence of PW-1 disclose that accused and deceased were in

drunken state on 04.04.2012 and were quarrelling with each other.

Except that, there is no other evidence on record to prove that the

appellant has committed the murder of the deceased. There is no

direct witness in this case and the entire case rests upon

circumstantial evidence. The trial Court entirely relied on the

documentary evidence i.e. Ex.P-11/the alleged extra-judicial

confession statement of the accused recorded by PW-8. The

evidence of PW-8 disclose that PW-10 produced the accused

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

before her and at his instance, the VRO/Papaiah recorded the extra-

judicial confession statement and she handed over the accused and

the statement/Ex.P-11 to the Police. But, PW-11 turned hostile and

did not support the case of the prosecution and denied the fact that

he produced the accused before PW-8. For the reasons best known

to the prosecution, the person who recorded the extra-judicial

confessions statement of the accused was not examined before the

Court i.e. the VRO/Papaiah to corroborate the evidence of PW-8.

Therefore, the finding of the trial Court that the extra-judicial

confession if true and voluntary, can be relied upon by the Court to

convict the accused for commission of offence, is not at all tenable.

Further, the extra-judicial confession statement is a weak piece of

evidence.

26. It is for the prosecution to prove that the crime objects are

connected with that of the accused and pursuant to the confession,

the crime objects were recovered. The evidence of PW-11/

investigating officer disclose that the material objects seized were

sent to Forensic Science Laboratory for examination but for the

reasons best known to the prosecution, the said Forensic Science

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

Laboratory report was not marked before the Court, to prove that

the material objects contain the blood stains of the deceased which

are also found on the clothes of the accused in order to connect the

crime with that of the accused. M.Os.2 and 3 are the stick and

sickle seized from the scene of offence. M.O.6 is the stick seized

pursuant to the confession of the accused. As per the evidence of

the Doctor, all the external injuries found on the dead body of the

deceased can be caused by M.Os.2, 3 and 6. Further Ex.P-11/the

extra-judicial confession statement of the accused disclose only of

using two types of weapons on the deceased by the accused. The

prosecution failed to prove that three types of weapons are used by

the sole accused in order to cause the death of the deceased.

27. In the judgment of Hon'ble Supreme Court in the case of

Sudhakar @ Sudershan Vs. State rep. by Inspector of Police,

Srirangam Police Station, Tiruchi2, it was held in para 17 as

under:

"Then, next comes to the question what is the difference between a related witness and an interested witness ? The plea of "interested witness", "related witness" has been sufficiently explained by this Court

(2018) 5 SCC 435

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand, PWs.1 and 5 were not only "related witnesses" but also "interested witnesses" as they had pecuniary interest in getting the accused punished. (refer State of U.P. vs. Kishan Pal3). As the prosecution has relied upon the evidence of "interested witnesses", it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution."

28. Admittedly, PW-2 is the daughter of the deceased, who was

born to the deceased through her first husband. It is testified by

PW-2 that her father died, prior to the death of her mother and she

does not know whether the accused married her mother or not? but

they were living under the same roof as wife and husband.

Therefore, PW-2 can be treated as interested witness though there

is not much incriminating evidence, against the accused.

The aforesaid judgment of the Apex Court is squarely applicable to

the facts of the present case.

(2008) 16 SCC 73 = (2010) 4 SCC (Cri) 182

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

29. As per the evidence of PW-7, the accused has confessed

before the Police, in the Police Station and the confession

statement is Ex.P-9, which is hit by Section 25 of the Indian

Evidence Act. The said Section envisages that no confession made

to a Police officer shall be proved against the person accused of

any offence.

30. Further, as per Section 27 of the Indian Evidence Act, when

any fact is deposed to as discovered in consequence of information

received from the person accused of any offence, in the custody of

the Police Officer, so much of such information, whether it

amounts to a confession or not, as relates distinctly to the fact

thereby discovered, may be proved. Thus, as per the said

provision, it is only the information which has to be taken into

consideration as to the discovery of the fact. In the present case, it

is the case of the Prosecution to prove that pursuant to the

confession of accused, M.Os.4 to 6 were discovered. Admittedly,

the said material objects were marked through PW-7, who testified

that he does not remember the description of the material objects.

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

Further, PW-10 turned hostile and therefore, not much weightage

can be given to the evidence of PW-8.

31. In State of U.P. Vs. Dr.Ravindra Prakash Mittal4, 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 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."

(1992) 3 SCC 300

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

32. As already discussed supra, there is no direct evidence on

record and entire case is based on circumstantial evidence.

Further, the conviction of the trial Court is based on the extra-

judicial confession statement which does not have any

corroboration as PW-10 has turned hostile, and the chain of events

are not connected with each other.

33. The other witnesses in this case are the Photographer,

panchayatdars for scene of offence and inquest i.e. PWs.4 and 6

respectively and their evidence is no way helpful to the prosecution

to prove the guilt of the accused in any manner. The present 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 appellant, therefore, the

conviction is bad in the eye of law. In a case of homicide, it is for

the prosecution to prove that the accused has inflicted injuries on

the deceased with M.Os.2, 3 and 6 i.e. stick, sickle and stick, which

ultimately resulted in the death of the deceased, but the prosecution

failed to explain as to how three weapons are implicated in the

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

case, to connect the weapons with that of the crime, by the other

accused.

34. It is relevant to mention that the accused has specifically

stated in his examination under Section 313 Cr.P.C. that on the

date of offence/incident he went to Shamshabad for collecting

amount and returned on the next day and was not aware as to who

has committed the murder of the deceased and that PW-1 has not

paid three months salary to him.

35. The conviction of the trial Court is entirely based on the

extra-judicial confession. In view of the above discussion, it can

be safely concluded that the extra-judicial confession statement of

the accused is not true and voluntary, and therefore, it can be

termed as 'tainted evidence'. Furthermore, there is no

corroborating evidence to the said extra-judicial confession

statement and therefore, it can be held that the prosecution has

miserably failed to prove the guilt of the accused beyond

reasonable doubt. Hence, the appellant is entitled for benefit of

doubt and the judgment of the trial court deserves to be set aside.

Dr.GRR, J & GAC, J Crl.A.No.40 of 2014

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

is found not guilty for the offence punishable under Section 302 of

IPC, and accordingly, the conviction and sentence imposed on the

appellant vide Judgment dated 07.08.2013 in S.C.No.765 of 2012

on the file of Additional Metropolitan Sessions Judge, Cyberabad,

is hereby set aside and the appellant is acquitted for the charged

offence. Consequently, the Superintendent, Central Prison,

Cherlapally, is directed to release the appellant forthwith, if he is

not required in any other case. M.Os.1 to 6 shall be destroyed after

the expiry of the appeal time.

Pending miscellaneous applications, if any, shall stand

closed.

_____________________ Dr. G. RADHA RANI, J

________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 20.01.2023

N.B:

Judgment be forthwith communicated to the jail authorities concerned.

(b/o) ajr