Telangana High Court
The State Of Telangana Rep By Pp., vs Potham Jagannadham Naidu ,Jagan, ... on 11 February, 2025
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
CRIMINAL APPEAL Nos.405 OF 2016 AND 1262 OF 2017
Crl.A.No.405 of 2016:
Between:
Mr.Potham Jagannadham Naidu @ Jagan ... Appellant/A1
And
The State of Telangana,
... Respondent/complainant
Crl.A.No.1262 of 2017:
Between:
The State of Telangana ... Appellant/complainant
And
1. Potham Jagannadham Naidu @ Jagan
2. Kallu Vijaya @ Vijaya Reddy
... Respondents/Accused.
DATE OF JUDGMENT PRONOUNCED: 11.02.2025
Submitted for approval.
2
HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
1 Whether Reporters of Local
newspapers may be allowed to see the Yes/No
Judgments?
2 Whether the copies of judgment may
be marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
___________________________
ANIL KUMAR JUKANTI, J
3
* HON'BLE SRI JUSTICE K.SURENDER
AND
* HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
+ CRIMINAL APPEAL Nos.405 OF 2016 AND 1262 OF 2017
% Dated 11.02.2025
Crl.A.No.405 of 2016
# Mr.Potham Jagannadham Naidu @ Jagan ... Appellant/A1
And
$ The State of Telangana,
... Respondent/complainant
Crl.A.No.1262 of 2017:
# The State of Telangana ... Appellant/complainant
And
$ 1. Potham Jagannadham Naidu @ Jagan
$ 2. Kallu Vijaya @ Vijaya Reddy
... Respondents/Accused.
! Counsel for the Appellant in Crl.A.No.405/2016: Smt.Indira
^ Counsel for the Respondent : Sri D.Arun Kumar,
Learned Addl. Public Prosecutor
! Counsel for the Appellant in
Crl.A.No.1262/2017 : Sri D.Arun Kumar,
Learned Addl. Public Prosecutor
^ Counsel for the Respondent : Sri Thomas Lloyd.
>HEAD NOTE:
? Cases referred
1
2023 SCC OnLine SC 268
4
HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.405 OF 2016 AND 1262 OF 2017
COMMON JUDGMENT:
1. Accused Nos.1 and 2 were tried for the offence of murder by
the Metropolitan Sessions Judge, Hyderabad, in SC.No.374/2015,
wherein, A1 was convicted and A2 was acquitted.
2. Criminal Appeal No.405 of 2016 is filed by Accused No.1
questioning his conviction recorded by the Metropolitan Sessions
Judge, Hyderabad, in SC.No.374/2015 for the offences under
Sections 302, 379 and 201 of the Indian Penal Code and
sentencing him to undergo Imprisonment for life and to pay a fine
of Rs.10,000/- for the offence under Section 302 of IPC; to undergo
rigorous imprisonment for a period of two years and to pay a fine of
Rs.2,000/- for the offence under Section 379 of IPC; to undergo
rigorous imprisonment for a period of seven years and to pay a fine
of Rs.10,000/- for the offence under Section 201 of IPC.
3. Criminal Appeal No.1262 of 2017 is filed by the State
questioning the acquittal recorded against Accused No.2 by the
Metropolitan Sessions Judge, Hyderabad, in SC.No.374/2015 for
the offences under Sections 120-B, 364 read with 109, 302 read
with 109, 380 read with 109 and 201 of the Indian Penal Code.
4. Since both the appeals are questioning the very same
Judgment of the Sessions Court, both the appeals are disposed off
by way of this common Judgment.
5. PW.1-defacto complainant, is the husband of deceased-
K.Sunitha. PW.1 went to the Police Station on 18.06.2014 and
lodged a complaint before the Police which is Ex.P1. In the
complaint, PW.1 stated that the deceased, his son-PW.2 and his
daughter-PW.3 were residing in Bapunagar, Ambepet, Hyderabad.
PW.1 was working in Bihar and he used to visit the house once in
every two months. PW1 also stated that, two months earlier, the
deceased received an obscene message on her mobile phone
No.8978099333 from another phone No.9010927814. After
receiving the obscene message, PW.2-son of the deceased called the
said number and reprimanded him. PW.1 visited Hyderabad in
April, 2014 and returned to Bihar on 14.05.2014. In the evening of
16.06.2014, PW.1 received a message from his wife's (deceased)
phone number stating that she was eloping with someone and
asked PW.1 to take care of PWs.2 and 3 (children of deceased). A
message was also received by PW.2 (son) to his phone number
saying that the deceased was leaving the house and asked PW.2 to
take care of PW.3. Attempts were made by PWs.1 and 2 to contact
the deceased's phone, however, it could not be reached. PW.1
called up PW.2 and PW.2 informed PW.1 that the deceased
informed PW.2 that she was going to see a doctor at Mehdipatnam
on Monday i.e., on 15.06.2014. PW.1 then came to Hyderabad on
18.06.2014 and directly went to Amberpet Police Station and
lodged a written complaint. He expressed in the complaint that he
suspects the person who sent the obscene message, two months
earlier, as the person responsible for deceased's missing.
6. PW.25-Investigating Officer registered the case as 'woman
missing' and the investigation was taken up by PW.26-Inspector.
PW.26 recorded the statements of PWs.1 to 3 and also informed the
other police stations. The call details of both cell phone numbers of
the deceased and suspect were called for and analysed. The cell
phone of the deceased was found to be used by PW.4 on the basis
of the IMEI Number of deceased's mobile. PW.4 was then
questioned by PW.26, and PW.4 stated that he found the cell phone
with the deceased's SIM number, however, he threw the deceased's
SIM away and inserted his own SIM vide No.9640217862, in
deceased's mobile. PW.26 further found that the number belonging
to suspect belonged to T.Kumara Swamy-PW.5. Upon investigation,
it was revealed that PW.5 was an accused and Crime No.133/2014
under Sections 3, 4 and 5 of PITA Act, was registered against him
in Sanathnagar Police Station. PW.5's cell phone with SIM
No.9010927814, was seized by the Sanathnagar Police.
7. Based on PW.5's statement, PW.26 questioned PW.8 who was
working as an Inspector in Sanathnagar Police Station. PW.8
identified Accused No.1 as the person who was an Advocate and
working as a private typist in the Sanathnagar Police Station.
According to PW.8, he called PW.5 and another to the Sanathnagar
Police Station, in relation to the crime registered against them, and
PW8 stated that he seized PW5's mobile with SIM No.9010927814
in relation to the case. While PW.8 was pre-occupied with the
investigation, A1 took the SIM from PW.5's phone without
knowledge of PW.8. PW.8 later found that the SIM card was
missing and asked A1, who promised to return it, however, PW.8
could not recover the SIM card from A1. PW.8 further informed
PW.26 that A1 wanted to sell gold ornaments. On 23.06.2014,
PW.8 went along with A1 to Vijay Kumar Shankarlal Jewellers,
Basheerbagh, and with the assurance of PW.8, the shop owner
purchased Jewellery from A1 for Rs.3,85,000/-. From the said
amount, A1 paid Rs.1,35,000/- to PW.8 to settle a previous hand
loan and kept the remaining cash with him.
8. On 09.07.2014, A1 was apprehended by PW.26 on the basis
of PW.8's statement that the SIM number 9010927814, which
allegedly belonged to the suspect, was with A1. PW.27-Inspector
interrogated Accused No.1, and Accused No.1 allegedly confessed
that he committed the murder of the deceased at the instance of
A2. A2 and PW.1-husband of the deceased, were previously
business partners and they had differences in between them.
9. On the basis of A1's confession, PW.27 and other Police
Personnel searched the flat of A1, which is a pent house situated at
third floor, Hyderguda, Shivanagar Colony, R.R.District. PW.27
found blood stains and spatters in the bath room. The scene was
preserved. A1 then took PW.27 to Attapur area and recovered three
mutilated parts of the dead body of the deceased from the Moosi
river. The remaining parts of the body could not be located. On the
basis of the recovered body parts, A1's confession and observation
of scene, the complaint which was registered as 'woman missing'
was altered to Sections 120 (B), 364, 302, 380, 201 of IPC. A2 was
also arrested on 10.07.2014 and she also confessed to abetting the
crime.
10. After the arrest of A2, PW.27 accompanied by police
personnel and PW.13, proceeded to collect evidence from the flat of
A1. There, M.O.7-hand bag of the deceased was found in which
MOs.11 & 12-nail polish, M.O.13-bangles, M.O.14-EPIC card of the
deceased were found. Scene of offence panchanama was
conducted, thereafter, PW.27, along with mediators, went to the
Mortuary and conducted inquest panchanama. Thereafter, the
body was sent for postmortem examination, and during autopsy,
PW24 preserved the femur bone and sternum bone of the deceased
for DNA test.
11. Police custody of A1 and A2 was ordered by the Court from
16.07.2014 to 19.07.2014. Pursuant to the confession, PW.27 went
to gold shop of PW.19 and recovered the MOs.1 to 6, jewellery of
the deceased, which was sold by A1 in presence of PW.8.
12. PW.22-Branch Manager, ICICI bank provided the bank
transaction details by providing the account statements of A1 and
A2 to PW.27. PW.23-tax consultant was also examined who
explained regarding the disputes in between PW.1 and A2.
13. The material objects which were collected at the scene were
sent to FSL. On 21.07.2014, PW.27 collected the blood samples of
PW.3-daughter of the deceased and Rajesh (brother of the
deceased). The samples were sent for DNA test. The FSL report
proved that the mutilated body parts, recovered from the Moosi
river, are that of deceased.
14. The case as projected by the prosecution is that A1 was
working as a private typist in various police stations in Hyderabad
and Cyberabad. PW.1 and A2 were business partners in a
pharmacy company and they together took a bank loan of Rs.2
crores. Disputes arose between PW.1 and A2 in their business
dealings. A2 suspected that PW.1 misappropriated the loan
amount instead of developing the company. In November, 2011, A2
lodged a complaint against PW.1 accusing PW.1 of committing theft
of plant and machinery from their company. The complaint was
registered by Kukatpally Police, but later closed for 'lack of
evidence'.
15. When A2 visited Kukatpally police, during the ongoing
investigation in her complaint, she met A1, who was working as a
typist in the Police Station at that time. A2 informed A1 about the
disputes and also sought help of A1 to force PW1 to agree to a
compromise and recover amount from PW.1. A2 promised a share
in the amount recovered by A1.
16. A1 also worked in Sanathnagar Police Station typing case
files for PW.8. In the first week of April, 2014, A1 visited the scene
of a murder being investigated by Sanathnagar Police Station.
There, A1 left a slip that 'Kolthur Krishna warned me' with the
intention of implicating PW.1 in the murder. In April, 2014, A1
went to the police station and PW.8 informed A1 that he would
bring PW.1. PW.1 denied involvement in the murder case, and he
was later let off. PW.1's family members then questioned A2 about
the harassment and involvement of PW.1 in a false case. Further,
according to the prosecution case A2 instigated A1 to trap the wife
of PW.1 i.e., the deceased. Accordingly, A1 trapped the deceased,
thereafter A1 took the deceased to his flat, killed her and cut her
body into parts and threw them in Moosi river at Attapur.
17. On examination of the bank account of A2, a deposit of
Rs.2,50,000/- was made into A2's account. The prosecution
intended to rely on the said ground of credit made to her account,
to establish that this money was received from PW.19, who
purchased the Jewellery from A1.
18. The chain of events relied on by the prosecution are:
i) On 16.06.2014, A1 took the deceased from her house which was
witnessed by PW.3-daughter of the deceased.
ii) On 16.06.2014, PWs.1, 2 and 6 received messages on their
phones from the phone number of the deceased.
iii) The cell phone details of the two numbers i.e., 8978099333
(deceased's phone number), 9010927814 (phone number used by
A1) were collected and on the said basis, PW.4 was identified as the
person who was using the cell phone of the deceased having SIM
i.e., 8978099333. Cell phone number 9010927814, was found to
be in the name of PW.5. PW.5 stated that while he was in the police
station, his cell phone was seized by PW8 in relation to the case
registered against him.
iv) A2 became friendly with A1 when she visited Kukatpally Police
to lodge complaint against PW.1.
v) Cell phone Number 9010927814 was then used by A1, who
seized the same from PW.8's table, to contact the deceased.
vi) PW.8 informed that A1 had sold certain jewellery and the said
jewellery was recovered from the shop of PW.19.
vii) A1 was arrested and at his instance, body parts were recovered
from the Moosi river and he was then taken to his pent house,
where incriminating material i.e., blood spatter, hand bag of the
deceased, etc., were found.
viii) The DNA test confirmed that the mutilated body parts belong
to the deceased.
ix) After the Jewellery was sold by A1, Rs.2,50,000/- was deposited
into the account of A2.
19. According to the evidence of PWs.1, 2 and 6 they received
message from the deceased on 16.06.2014 after which the cell
phone of deceased was switched off. PW.2 stated that on
15.06.2014, the deceased told him that she was going to see a
doctor at Mehdipatnam. Though PW.2 stated that he left for college
on 15.06.2014, the same was a Sunday, and he stated that he
received a message from the deceased asking PW.2 to take care of
PW.3. PW.2 also stated that on 15.06.2014, the deceased went
missing. The testimony of PWs.1, 2 and 3 when considered, it
creates doubt whether the deceased went missing on 15.06.2014 or
16.06.2014. Further, the messages that were allegedly sent from
the deceased's phone number to PWs.1, 2 and 6 were not retrieved
from their cell phones. Even the copy of the text messages from
deceased was not filed. It is the oral testimony of these witnesses
that they received messages, however, no evidence was collected by
the prosecution to substantiate that messages were sent to PWs.1,
2 and 6 from the cell phone of the deceased.
20. The complaint was filed by PW.1 on 18.06.2014, however, it
reached the Court on 20.06.2014, though, it is admitted that the
Court was only 2 k.ms. away from the police station. It is also
doubtful as to why none of the family members of the deceased i.e.,
her brother, mother, admittedly staying in Hyderabad, did not
choose to lodge complaint with the Police regarding the deceased
missing from her house.
21. The phone number 9010927814 was the number from which
phone calls were made to the phone number of the deceased. From
the said phone number i.e. 9010927814, two months prior, an
obscene message was received to the phone number of the
deceased, however, the said details of the message were also not
collected during investigation. PW.5 was identified as the owner of
the said SIM 9010927814. However, PW.5 stated that his cell
phone was seized when he went to the Sanathnagar Police Station.
The cell phone of the deceased was found with PW.4. The
prosecution did not provide any proof that the cell phone number
9010927814 was used by the Accused No.1/appellant, by filing the
relevant cell phone records showing the location associated with
A1. To further worsen the situation, the prosecution did not file
any documents to show that PW.5 had obtained SIM bearing
No.9010927814 by collecting the application form given to the
service provider while tracking the SIM card with cell phone
No.9010927814. Once no proof is placed on record to substantiate
that PW.5 had taken the SIM 9010927814, the version of the
prosecution that A1 stole the SIM from the cell phone of PW.5,
when the same was seized by PW.8, also becomes doubtful.
22. The prosecution has placed heavy reliance on the evidence of
PW.8 to connect the dots. According to PW.8, he stated that he
knew A1 and A1 approached him to sell the gold jewellery
belonging to his relatives. PW.8 took A1 to PW.19 shop where A1
sold the gold for Rs.3,85,000/- and handed over Rs.1,35,000/- to
PW.8. PW.8 further stated that he came to know that A1 was
involved in the murder of the deceased and the gold sold by A1
belonged to the deceased. However, PW.19 did not issue any
receipts for the sale of Jewellery i.e., MOs.1 to 6. PW.19 in his
cross-examination admitted that he issues receipts for every
transaction, however, there were no receipts filed for the gold
allegedly sold by A1 through PW.8. Neither the documents were
produced, nor the CCTV footage from the shop of PW.19 was filed.
PW.19 further claimed that all the transactions are mentioned in
the registers, however, neither the registers, nor the copies of the
register for the relevant transaction were seized by the police. In
the background of the admissions by PW.19, there arises any
amount of doubt regarding the correctness of PW.19's version that
A1 sold the gold when brought by PW.8. PW.8 is also a police
officer. It appears that PW.8 had influenced PW.19 to state against
A1 that PW.19 had purchased gold from A1.
23. PW.1 stated that he identified MOs.1 to 6, gold ornaments.
However, PW.1 did not provide any proof to show that MOs.1 to 6
belong to the deceased. No purchase records were filed, nor any of
the earlier photographs were filed to show that the deceased was
wearing any of the jewellery. MOs.1 to 6 were also not identified in
accordance with the procedure laid down under Rule.34 of the
Criminal Rules of Practice.
24. There is a deposit of Rs.2,50,000/- in the account of A2 on
24.06.2014. It is intended by the prosecution to be a connecting
link between the sale of Jewellery of the deceased and the money
being deposited into A2's account. As already discussed, the
prosecution failed to prove that MOs.1 to 6 belong to the deceased
and that it was sold by A1 to PW.19 who handed over cash.
Further, out of cash received from PW.19, according to PW.8, A1
paid an amount of Rs.1,35,000/-. The alleged details of PW.8
giving loan of Rs.1,35,000/- to A1 were not stated, nor any
documents were filed to substantiate the same.
25. PW.11's services were taken by the Investigating Officer to
recover the body parts from Moosi river. After the body parts were
recovered, the body was shifted in the vehicle of PW.10. PW.20 was
examined who runs a kitchenware shop in Erragadda, Hyderabad.
However, he turned hostile to the prosecution case. The
prosecution relied on his evidence to show that the Butcher knife,
which was allegedly used by A1 to dismember deceased's body, was
purchased from his shop. Since PW.20 turned hostile, the said
circumstance of buying the butcher knife by A1 cannot be
considered. According to PW.27, a red colour Maruthi car was
seized on the basis of A1's confession. From there they went to A1's
apartment and the scene was preserved. The case of the
prosecution is that A1 used his car to transport the body parts of
the deceased after he severed the body. However, A1's car was not
sent to FSL for the purpose of examination.
26. The knife-M.O.10 which was the alleged weapon used in
mutilating the body of the deceased was also not sent to FSL.
27. On 09.07.2014, body parts were recovered from the Moosi
river pursuant to the confession made by A1. The Police also went
to the scene of offence on 09.07.2014. The handbag M.O.7, in
which MOs.11 to 14 were found was identified as the bag of the
deceased and it was recovered from the house of the appellant-A1
on 10.07.2014. It is suspicious as to why PW.27 did not find
M.O.7, bag of the deceased in the flat of the appellant on
09.07.2014 and found the same on 10.07.2014. If at all A1 had
taken precaution to wipe off evidence in his house after mutilating
the body, the presence of bag of the deceased becomes doubtful, as
why would A1 keep the bag in the house for a period of nearly 15
days. More so, in the background of the Police not finding the bag
on 09.07.2014 when they initially visited the flat of A1, and
recovering the same on 10.07.2014 with the EPIC card of the
deceased.
28. The evidence of last seen is also doubtful. As already
discussed, PW.2-son of the deceased stated that the deceased
informed him that she was going to hospital on 15.06.2014, after
which she was missing, however, PW.1 stated that deceased sent a
message on 16.06.2014. PW.3 is the daughter of the deceased, who
stated that she saw the deceased leaving with A1. Admittedly A1
was a stranger and PW.3 admitted that her school starts around
8:00 or 8:30 A.M. However, A1 picked up the deceased around 9.30
A.M. So, PW3's presence at the house during 9:30am is doubtful.
None of the neighbours of the deceased were examined. Further
none of the neighbours of the deceased or anyone had seen the
deceased with the appellant/A1 at any point of time. There is
absolutely no evidence which is produced by the prosecution to
show that the deceased and the appellant met in the flat of the
appellant or at any other place. It was not clarified that at any
point of time both the numbers of the deceased and the appellant
were found under one tower location. The entire version of the
prosecution rests on the call records to establish relation in
between A1 and the deceased. No single witness had seen them
together. The claim that number 9010927814 was allegedly used
by the accused was not proved. It was also not proved that PW5
was the owner of the SIM card No.9010927814. No assumption can
be made that PW.5's cell phone with SIM was seized at the Police
Station, and the SIM from the phone was then picked up by A1 and
A1 started using the SIM card of PW.5 to communicate with the
deceased.
29. Ex.P24 is the FSL report dated 26.11.2014. The said report
does not mention that the hair which was recovered from the house
of the appellant were of human origin. Further, no DNA test was
conducted to connect the seized hair or the blood stains seized to
be that of the deceased. The DNA report, was marked through
PW.27, which is Ex.P25. According to the DNA report, the report
was prepared on 25.02.2015 and dispatched on 13.03.2015.
However, in the first enclosure of the DNA report, at the bottom of
the print of the report, the date mentioned is Friday, June 07,
2013, 03.34 p.m. The Assistant Director, B.Phani Bhushan was
called to the Court to clarify the discrepancy regarding the date.
The said B.Phani Bhushan appeared before the Court on
20.01.2025 and stated that there was a printing error in the
Electropherogram and the date was wrongly reflected in the report.
A letter was also produced by B.Phani Bhushan, Assistant Director
who signed on Ex.P25-FSL report. The said letter was addressed to
the Public Prosecutor by Dr.G.Pandu who is the Assistant Director,
DNA section, TG FSL. In the said letter addressed by G.Pandu, it is
mentioned that the DNA report was prepared on 25.02.2015 and
dispatched on 13.03.2015, however, there is an error that occurred
in the date, and that 'Fri, June 07, 2013' was wrongly printed. In
the letter, Dr.G.Pandu is apologetic for the error.
30. The letter dt.20.01.2025 addressed by Dr.G.Pandu reads as
follows:
"To, 20.01.2025
The State Public Prosecutor,
High Court of Telangana, Hyderabad.
Respected Sir,
Sub: Date error in electropherogram of FSL vide
file No.DNA/327/2014, Req.Reg.
Ref: Lr.Crl.a.No.405/2016, Dt.07.01.2025.
As the subject cited above, the FSL vide file
No.:DNA/327/2014 has a printing error in the electropherogram.
The date printed was "Fri, Jun 07, 2013, 3:34 PM" which is
wrongly printed as there was an issue with the settings of the
printer due to which this error was occurred.
According to the FSL File, the DNA report was prepared on
the date "25.02.2015" and was dispatched on date "13.03.2015". I
kindly request you to read the date "Fri, Jun 07, 2013 03:34 PM"
as "25.02.2015". the concerned Assistant Director was transferred
to Andhra Pradesh FSL at Mangalagiri during the bifurcation.
I kindly apologize for the error occurred and request you to
accept my apology.
Thanking you.
Yours Sincerely,
Dr.G.Pandu, Assistant Director,
DNA Section, TGFSL."
31. Apology by the expert cannot form basis to accept the FSL
report. It is not satisfactorily explained by either the Assistant
Director B.Phani Bhushan Rao who appeared in Court or
Dr.G.Pandu in the letter as to the reason for the error by providing
necessary details and/or documents. An apology, in no way can be
considered by the Court to condone the mistake, and to read the
FSL report in favour of the prosecution.
32. The prosecution did not examine either Dr.G.Pandu or
B.Phani Bhushan, Assistant Director of the AP FSL in the Court
during trial. No reasons are given as to why they were not
examined when there is a discrepancy of the date being found on
the DNA report, falsifying the version of the prosecution in its
entirety. The incident happened in the year 2014 and the report
underneath shows the date as Friday, June 07, 2013. The
Investigating officer ought to have sought clarification from the FSL
at the earliest point of time. After the Assistant Director was
summoned to the Court, the only statement he made before us is
that there was some error for a period of 3 to 4 months at the
relevant time in the office computers, for which reason, the date
was wrongly printed. No record was produced to show that there
was any kind of error during the relevant time. As already
discussed, a casual statement that discrepancy was due to an error
cannot be accepted.
33. The basis to connect that the body parts which were found in
the Moosi river belong to the deceased, is the DNA report. The said
finding in Ex.P25 which was marked through the Investigating
Officer cannot be accepted in the present facts of the case when
there is a glaring discrepancy in the date.
34. Section 293 of Cr.P.C reads as follows:
"293. Reports of certain Government scientific experts.--(1) Any
document purporting to be a report under the hand of a
Government scientific expert to whom this section applies, upon
any matter or thing duly submitted to him for examination or
analysis and report in the course of any proceeding under this
Code, may be used as evidence in any inquiry, trial or other
proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such
expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a Court, and he is
unable to attend personally, he may, unless the Court has
expressly directed him to appear personally, depute any
responsible officer working with him to attend the Court, if such
officer is conversant with the facts of the case and can satisfactorily
depose in Court on his behalf.
(4) This section applies to the following Government scientific
experts, namely:-- (a) any Chemical Examiner or Assistant
Chemical Examiner to Government; 1
(b) the Chief Controller of Explosives;]
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director [, Deputy Director or Assistant Director] of a
Central Forensic Science Laboratory or a State Forensic Science
Laboratory;
(f) the Serologist to the Government;
(g) any other Government scientific expert specified, by notification,
by the Central Government for this purpose."
35. As seen from the provision, a report sent by Assistant
Director of State FSL may be used as evidence during trial. In view
of the discrepancy, the trial Court ought to have summoned the
concerned Expert to depose and clarify regarding the discrepancy
in the report. Without the same, the FSL reports Exs.P24 and P25
were marked by the investigating officer-PW.27.
36. The entire case as discussed above is on the basis of
circumstantial evidence.
37. The Honourable Supreme Court in Shankar v. State of
Maharashtra 1 held as follows;
"In the decision of Prakash v. State of Rajasthan (2013) 4
SCC 668, this Court took note of the following principles
2023 SCC OnLine SC 268
laid down regarding the law relating circumstantial
evidence in Sharad Birdhichand Sarda v. State of
Maharashtra (1984) 4 SCC 116:-
"153. A close analysis of this decision would show
that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:
(1) The circumstances from which the conclusion of
guilt is to be drawn should be fully established. It
may be noted here that this Court indicated that
the circumstances concerned 'must or should' and
not 'may be' established. There is not only a
grammatical but a legal distinction between 'may
be proved' and 'must be or should be proved' as
was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC
793] where the following observations were
made:
19. ......"certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between 'may be' and 'must be' is long and
divides vague conjectures from sure conclusions"
(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 so complete as
not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence."
38. As observed by the Honourable Supreme Court, every
circumstance has to be proved by the prosecution beyond
reasonable doubt. The following circumstances were considered to
establish the prosecution's failure in proving the case beyond the
reasonable doubt:
i) It is not established whether the deceased went missing on 15th
or 16th of June, 2014.
ii) No evidence was placed to show that at any point of time, A1 and
PW.1 met.
iii) No evidence was placed to show that phone No.9010927814 was
used by the appellant and there is only an assumption that the
SIM from the cell phone of PW.5 was taken away by the appellant
and used.
iv) PW.5 though examined, could not prove that he has taken the
SIM card and no application for obtaining SIM by PW.5 was
collected during the course of investigation.
v) PW.8 stated that the appellant sold the gold with his help. The
said gold was sold to PW.19. However, though PW.19 states that
every transaction is recorded, the transaction pertaining to the sale
of the alleged gold by the appellant was not placed before the
Court.
vi) M.Os.1 to 6 which are the Jewellery of the deceased was not
proved to be that of the deceased. No Test Identification Parade was
conducted in accordance with Rule 34 of the Criminal Rules of
Practice.
vii) The hair and blood collected in the flat of the appellant were not
proved to be that of the deceased.
viii) The car in which the body was allegedly transported and the
M.O.10-knife, allegedly used to mutilate the dead body, were not
sent to the FSL.
ix) the FSL report, Ex.P25, which shows the result of the DNA
analysis, cannot be accepted.
39. In view of the said infirmities in the case of the prosecution,
the circumstances relied on by the prosecution are doubtful and is
bound with unexplained inconsistencies. Considering the
inconsistencies in the case of prosecution, and the circumstances
not being proved by the prosecution beyond reasonable doubt, it is
established that there is absolutely no connecting link which forms
a complete chain to unerringly point towards guilt of the appellant.
40. Accordingly, Crl.A.405 of 2016, filed by Accused No.1 is
allowed and Appellant-A1 is acquitted. The conviction and sentence
recorded by the Metropolitan Sessions Judge, Hyderabad, in
SC.No.374/2015 for the offences under Sections 302, 379 and 201
of the Indian Penal Code, is set aside. Since the appellant-A1 is in
jail, he shall be released, forthwith, if not required in any other
case.
41. Crl.A.No.1262 of 2017 filed by the State questioning the
acquittal recorded against Accused No.2, is dismissed in view of the
acquittal of A1.
__________________
K.SURENDER, J
___________________________
ANIL KUMAR JUKANTI, J
Date: 11.02.2025
Note: CC today.
tk
HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.405 OF 2016 AND 1262 OF 2017
Date: 11 .02.2025
tk
