APHC010512262018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3578] WEDNESDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN CRIMINAL APPEAL NO: 1991/2018 Between: 1. NALLAGOTLA SAMSON, R/O GARGEYAPURAM VILLAGE, KURNOOL MANDAL AND DISTRICT. ...APPELLANT AND 1. THE STATE OF ANDHRA PRADESH, Rep. by its Public Prosecutor, through Kurnool Taluk (Urban) Police Station. High Court at Hyderabad. ...RESPONDENT Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to allow the appeal by setting aside the conviction and sentence dated 16-05-2018, passed in Sessions Case No.416 of 2016, by the Principal Sessions Judge, Kurnool and consequently acquit the appellant herein and to pass. IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail by suspending the conviction, and sentence dated 16-05-2018 passed in Sessions Case No.416 of 2016, on the file of Principal Sessions, Judge, Kurnool, pending disposal Appeal and to pass. IA NO: 1 OF 2019 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the petitioner on bail for a period of 50 days pending disposal of the Crl.A. No. 1991 of 2018 and pass Counsel for the Appellant: 1. U RAMANJANEYULU Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) 2 The Court made the following JUDGMENT: (Per Hon’ble Sri Justice K.Suresh Reddy) Sole accused in Sessions Case No.416 of 2016 on the file of the Court of the learned Principal Sessions Judge, Kurnool (for short, ‘the learned Sessions Judge’), is the appellant herein. He was tried by the learned Sessions Judge under the following charges: (i) 1st charge was under Section 302 IPC; and (ii) 2nd charge was under Section 201 IPC 2. Substance of the charge is that, on 06.02.2013 at about 05.30 P.M., the accused caused the death of one Chittamma @ Yelleswari (hereinafter referred to as ‘the deceased’) by beating her with a stone, fisting her on right temple region, and also by pressing her throat and in the same process, he buried the dead body near H.N.S.S. Canal by digging a pit with the help of M.O.15–Crowbar, to screen the evidence, thereby committed offences punishable under Sections 302 and 201 IPC. 3. After completion of trial, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to undergo imprisonment for ‘LIFE’ and also to pay a fine of Rs.25,000/-, in default to suffer Simple Imprisonment for a period of three months. Learned Sessions Judge further convicted the appellant under Section 201 IPC and sentenced him to undergo Simple Imprisonment for a period of seven years and also to pay a fine of Rs.10,000/-, in default to suffer Simple 3 Imprisonment for a period of two months. Both the substantive sentences were directed to run concurrently. 4. Case of the prosecution, briefly, is as follows: Accused is resident of Gargeyapuram Village, Kurnool Mandal and District. The deceased was resident of Nandikotkur. PW.2 is the sister, PW.3 is the son and PW.4 is the husband of the deceased respectively. The deceased along with PWs.3 and 4, was residing at Nandikotkur. (ii) On 20.02.2013 at about 12.00 noon, while PW.1, the V.R.O. of Gargeyapuram Village, was attending to his duties in his office, a shepherd boy approached him and informed him about an unknown female dead body lying near the H.N.S.S. Canal. Immediately, PW.1, along with the village staff, proceeded to the canal and found the head of a dead body, while the remaining portion of the body was found buried near the canal. As the identity of the deceased could not be ascertained, PW.1 deputed the talaries to guard the dead body and thereafter proceeded to the Police Station, where he furnished the information regarding the incident. (iii) At about 4.00 p.m. on the same day, PW.15, the Inspector of Police, Kurnool Taluk Police Station, received Ex.P1 report from PW.1 and registered a case in Crime No.47 of 2013 under Section 174 Cr.P.C. and issued copies of F.I.R. to all the concerned. FIR is marked as Ex.P18. Immediately PW.15 visited the scene of offence and posted a guard there. He also submitted a requisition to PW.11, the Mandal Executive Officer/Tahsildar, for exhumation of the dead body and conduct of inquest proceedings. 4 (iv) Pursuant to the requisition, PW.11 visited the scene of offence on 21.02.2013 and got the dead body exhumed at about 11.00 a.m. under a cover of Panchanama, Ex.P2. On the same day, he conducted inquest over the dead body in the presence of PW.1 and another. Inquest report is marked as Ex.P3. In the said report, the mediators opined that the dead body had been buried about twenty days prior to its exhumation. (v) PW.15 received Ex.P2 from PW.11. Thereafter, PW.11 sent a requisition to Forensic Professor to conduct spot Autopsy over the dead body. PW.15 visited the scene of offence and prepared a Rough Sketch Ex.P19. He also recorded statement of PW.1 at the time of inquest. PW.11 seized M.Os.5 & 15 during the course of exhumation. (vi) After seizure of the material objects, PW.15 addressed a letter to the Additional Superintendent of Police, Kurnool, requesting him to obtain the call data pertaining to Mobile No.8499952201, as the said number was found in the Zip Purse marked as M.O.5. On 22.02.2013, PW.15 secured the call data and contacted the said number. The call was received by PW.2, who informed him that she was at Kurnool. (vii) On the request made by PW.15, PW.2 went to the Police Station and identified the material objects of the deceased and also identified the tattoo mark on the deceased and she identified the dead body as that of her sister Chittemma @ Yalleswari. PW.15 recorded statement of PW.2. Thereafter, P.W.15 secured the presence of PWs.3 and 4, the son and husband of the deceased respectively, and recorded their statements. 5 (viii) On 21.02.2013, PW.14, Professor, Head of the Department of Forensic Medicine, Kurnool Medical College, visited the scene of offence at the time of exhumation of the dead body. He conducted autopsy over the dead body and opined the cause of death was intracranial hemorrhage resulting from a head injury. He sent the stomach, intestine, liver and kidney of the deceased to the Regional Forensic Science Laboratory (R.F.S.L.) for chemical examination. Preliminary post-mortem certificate issued by PW.14 was marked as Ex.P15. R.F.S.L. report was marked as Ex.P16 and the final opinion furnished by PW.14 was marked as Ex.P17. (ix) On receipt of post-mortem report, PW.15 altered the section of law from Section 174 Cr.P.C. to Sections 302 and 201 IPC and forwarded the altered F.I.R., marked as Ex.P20, to the concerned authorities. Thereafter, PW.15 visited the house of the accused, but found him absconding. He recorded statements of PWs.5 to 7 and others. (x) While the matter stood thus, on 26.02.2013 at about 2.00 p.m., PW.9, resident of Gargeyapuram, approached PW.1 in his office and stated that the accused had confessed before him regarding the commission of the offence. Statement of PW.9 was reduced into writing and marked as Ex.P21. PW.15 also recorded statement of PW.9. Thereafter, PW.15 secured the presence of PWs.12 and 13 and arrested the accused in their presence. He recorded confession statement of the accused in the presence of the said mediators. During the course of the confession, the accused disclosed the 6 place where he had buried the dead body. The admissible portion of the said confession statement was marked as Ex.P22. (xi) Pursuant to the confession of the accused, PW.15 recovered M.Os.12 to 14 under a cover of Panchanama, marked as Ex.P23, in the presence of PWs.12 and 13 and the photographs along with CD were marked as Ex.P24. PW.15 thereafter forwarded the material objects to the R.F.S.L., Kurnool, under a Letter of Advice, marked as Ex.P25. Subsequently, the accused was remanded to judicial custody. (xii) On 27.02.2013, PW.15 recorded statement of PW.10. He also received the call data records pertaining to mobile phone number of the deceased. After receiving all the relevant documents and after completion of the investigation, PW.15 filed charge sheet. 5. In support of its case, the prosecution examined PWs 1 to 15, marked Exs.P1 to P25 and exhibited MOs.1 to 15. 6. When the accused was examined under Section 313 Cr.P.C., he denied the incriminating material appearing against him. 7. Accepting the evidence of prosecution witnesses, the learned Sessions Judge convicted the appellant as aforesaid. 8. Heard Sri M.B.Thimma Reddy, learned counsel appearing on behalf of Sri U.Ramanjaneyulu, learned counsel for the appellant; and Sri Marri Venkata Ramana, learned Additional Public Prosecutor representing the Respondent / State. 7 9. Learned counsel for the appellant strenuously contends that there are no eyewitnesses to the alleged incident and that the entire case of the prosecution rests solely on circumstantial evidence. He further contends that absolutely there is no legal evidence connecting the appellant with the commission of the alleged offence. According to him, the prosecution has failed to establish even a single incriminating circumstance pointing towards the guilt of the accused. As such, he states that the conviction and sentence recorded by the learned Sessions Judge are not sustainable under law and requests this Court to allow the appeal by setting aside the conviction and sentence. 10. Learned Additional Public Prosecutor opposed the appeal, contending, inter alia, that the evidence of PWs.3 and 4 clearly establishes the 'last seen' circumstance and the recovery of MOs.12 & 13 at the instance of the accused. As such, he requested this Court to dismiss the appeal by confirming the conviction and sentence recorded by the learned Sessions Judge. 11. We have carefully scrutinized the entire evidence on record. 12. Admittedly, there are no eye witnesses in the present case. The prosecution relied on the basis of circumstantial evidence to prove the guilt of the accused. The first circumstance relied on by the prosecution is the ‘last seen theory’. The second circumstance relied on by the prosecution is the so-called ‘extra-judicial confession’ said to have been made by the accused before PW.9. The third circumstance is ‘the recovery of M.Os.12 and 13’ 8 pursuant to the disclosure statement of the accused under Section 27 of the Indian Evidence Act. 13. Insofar as the first circumstance is concerned, namely, the 'last seen' theory, the prosecution relies on the evidence of PWs.3 and 4. PW.3 is the son of the deceased and PW.4 is her husband. PW.3, in his evidence, stated that on 05.02.2013, while the deceased was at home, the accused signaled her from the hotel of PW.5 and on that she went along with him and did not return. PW.3 further stated that when he contacted the deceased on the next day, she informed him over phone that she was at Kurnool and would return home shortly. However, she did not return and, thereafter, her mobile phone was found switched off. PW.4, husband of the deceased, stated in his evidence that he came to know that the deceased went along with the accused at about 5.00 p.m. on 05.02.2013 and that he learnt this fact through PW.5. He further stated that the deceased did not return home thereafter. 14. A careful scrutiny of the evidence of PWs.3 and 4 reveals that, despite not knowing the whereabouts of the deceased, neither of them approached the police or lodged any missing report. They remained silent till 22.02.2013, when they were summoned by the Investigating Officer (PW.15). It was only then they disclosed that the deceased went along with the accused on 05.02.2013 at about 5.00 p.m. Thus, from 05.02.2013 till 22.02.2013, both these witnesses maintained complete silence regarding this crucial circumstance. Further, the dead body was recovered on 20.02.2013, nearly two weeks after the deceased was allegedly last seen in the company of the 9 accused. The considerable time gap between the alleged last seen circumstance and the recovery of the dead body significantly weakens the probative value of the evidence. In the absence of any other corroborative material, it would be unsafe to place reliance upon the so-called last seen theory. Accordingly, we are of the considered view that the prosecution has failed to establish the first circumstance relied on by it. 15. Coming to the second circumstance, namely, the alleged extra-judicial confession said to have been made by the accused before PW.9, the prosecution relies on the evidence of the Investigating Officer-PW.15. According to PW.15, on 26.02.2013 at about 2.00 p.m., PW.9 approached him and submitted Ex.P21 report stating that the accused had confessed before him at about 11.00 a.m. regarding the commission of the offence. However, PW.9 did not support the case of the prosecution and was declared hostile. In the absence of any substantive evidence from PW.9 regarding the alleged confession, the prosecution cannot derive any benefit from the so-called extra-judicial confession. Consequently, the second circumstance relied upon by the prosecution also remains unproved. 16. Coming to the last circumstance, i.e., recovery of M.Os.12 and 13, PW.15, the Investigating Officer, in his evidence stated that pursuant to the confession made by the accused, M.Os.12 and 13 were recovered in the presence of mediators, PWs.12 and 13. But, curiously, both the mediators did not support the prosecution case and were declared hostile. In the absence of corroborative evidence from the mediators regarding the alleged recovery, the 10 prosecution has failed to satisfactorily establish the recovery under Section 27 of the Indian Evidence Act. As such, the prosecution could not able to prove the last circumstance also. 17. Having analyzed the entire evidence on record, we are of the considered opinion that the prosecution has miserably failed to establish any circumstance or produce any legal evidence connecting the appellant with the commission of the alleged offence. 18. In this connection, it is trite that the Hon’ble Apex Court in a catena of judgments including the decision in Sharad Birdhichand Sarda v. State of Maharashtra1, has laid down five (5) golden principles, which govern a case based only on circumstantial evidence. 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The facts so established should be consistent 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 followed; 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. 1 (1981) 4 SCC 116 11 19. All the above facts and circumstances indicate that the prosecution failed in proving the guilt of the appellant/accused herein beyond reasonable doubt, as such he is entitled to be acquitted and the conviction and sentence recorded by the learned Additional Sessions Judge against the appellant/accused is not sustainable and the same is liable to be interfered with. 20. In the result, this Criminal Appeal is allowed and the conviction and sentence recorded against the Appellant / Accused by the learned Principal Sessions Judge, Kurnool in Sessions Case No.416 of 2016, for the offences punishable under Sections 302 & 201 IPC, vide judgment dated 16.05.2018, are hereby set aside and the Appellant / Accused is acquitted for the said charges. Fine amount, if any, paid by the Appellant / Accused for the offences under Sections 302 & 201 IPC shall be refunded to the Appellant / Accused. The Accused / Appellant is directed to set at liberty forthwith, if he is not required in any other crime or cases. As a sequel, interlocutory applications pending, if any, shall also stand closed. __________________ K.SURESH REDDY, J _______________________ CHALLA GUNARANJAN, J 17.06.2026 MVA 12