Telangana High Court
Shaik Subhani, Khammam Dt 2 Othrs., vs State Of A.P., Rep Pp., on 21 September, 2022
Author: Shameem Akther
Bench: Shameem Akther
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.620 of 2013
JUDGMENT:(Per Hon'ble Dr. Justice Shameem Akther) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C'), is filed by the appellants/A1 to A3, aggrieved by the judgment, dated 31.05.2013, passed in S.C.No.548 of 2012 by the III Additional Sessions Judge (FTC), Khammam, whereby, the Court below convicted the appellants/A1 to A3 of the offences punishable under Sections 302, 201 r/w 34 of IPC and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of one year.
2. We have heard the submissions of the learned counsel for the appellants/A1 to A3, learned Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
On 12.11.2011, PW.1-K.Gopi Krishna, went to Wyra Police Station and lodged Ex.P1-complaint stating that about five or six years back, his brother Korukonda Poorna Krishna Prasad (the 2 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 deceased) developed acquaintance with one Muslim lady by name Saida Bee, who left her husband and residing in their house as tenant along with her two children. About three years back, on the occasion of 'Venkateswara Swamy Kalyanamasthu Programme', the deceased and Saida Bee got married. Thereafter, they went to Rebbaram Village and doing business. About two months back, the deceased met with a motor accident and admitted in hospital. When PW.1 went to see the deceased at the hospital, the deceased told him that Saida Bee was moving closely with one Subhani and as such, he scolded both of them and therefore, Saida Bee did not come to hospital till his discharge.
After discharge, the deceased went to Rebbaram village and informed PW.1 through phone that Saida Bee has been deceiving him and suspected that they may kill him. On 12.11.2011, PW.1 received a phone call from his sister that someone killed the deceased, tied his dead body in a bag and thrown in Right Canal of Wyra Reservoir. PW.1 went to the Right Canal of Wyra Reservoir, saw the dead body of the deceased and observed that there were grievous injuries on the face caused with a hard weapon. He is having suspicion over Saida Bee and Subhani for the death of the deceased and prayed to take action against the culprits.
3 Dr.SA,J & EVV,J Crl.A.No.620 of 2013
4. Basing on the report lodged by PW.1, PW.10-CI of Police, Wyra Police Station, registered a case in Crime No.155 of 2011 for the offence under Section 302 of IPC, examined PW.1 and recorded his statement, visited the scene of offence, i.e., the place where the dead body was floating in the water, brought the dead body out of the water with the help of LW.5-Sk.Hussain and PW.4, secured the presence of panch witnesses, i.e., PW.7 and LW.9- S.Nagur, prepared Crime Details Form under Ex.P7 and seized MOs.3, 4, Ex.P2-identity card in their presence, conducted inquest panchanama under Ex.P8, examined PWs.1 to 5 and LW.5-Shaik Hussen, got photographed the dead body of the deceased and the scene of offence, sent the dead body for Post Mortem Examination, apprehended the appellants/A1 to A3, seized MO.6 pursuant to their confession, again visited the scene of offence and seized MO.7 under Ex.P11, conducted another Crime Details form under Ex.P12, proceeded to the outskirts of Thallada Village where the accused burnt the blood stained bed sheets and pillows and seized MOs.8 and 9 under a cover of panchanama, sent the seized material to Forensic Science Laboratory for report, after receipt of PME Report and after completion of investigation, laid charge- sheet before the learned Judicial Magistrate of First Class, Madhira, 4 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 against the appellants/A1 to A3 for the offences under Sections 302, 201 r/w 34 of IPC.
5. Learned Magistrate had taken cognizance against the appellants/A1 to A3 of the offences under Sections 302, 201 r/w 34 IPC, registered the same as P.R.C.No.7 of 2012 and committed the case to the Principal Sessions Court, Khammam, under Section 209 of Cr.P.C., as the case is exclusively triable by the Court of Session. On committal, the Principal Sessions Court, Khammam, numbered the case as S.C.No.548 of 2012 and made over to the Court below for disposal, in accordance with law.
6. On appearance of the appellants/A1 to A3, the Court below framed charge against them of the offences under Sections 302, 201 r/w 34 IPC, read over and explained to them for which, the appellants/A1 to A3 pleaded not guilty and claimed to be tried.
7. To prove the guilt of the appellants/A1 to A3, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P16, besides case properties, MOs.1 to 9.
8. PW.1-K.V.Gopi Krishna is the complainant. PW.2- V.Dhanalakshmi is the sister of the deceased. PW.3-T.Venkanna is a circumstantial witness. PW.4-SK.Meera is another circumstantial 5 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 witness. PW.5-M.Jaya Rao is the person who firstly seen the dead body of the deceased floating in water. PW.6-R.Premkumar is the photographer, who took photographs of the dead body of the deceased and scene of offence. PW.7-D.Venkateswar Rao is a panch witness for Ex.P7-Crime Details Form. PW.8-Sk.Saidulu is a panch witness for confession of the accused and seizure panchanama. PW.9-Dr.E.Ravi Kishore is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P15- PME Report and Final Opinion. PW.10-Md.Ashfaq is the investigating officer. Ex.P1 is the complaint. Ex.P2 is Identity Card of the deceased. Ex.P3 is statement of PW.3 recorded under Section 161 Cr.P.C. Ex.P4 to P6 are photographs. Ex.P7 is Crime Details Form. Ex.P8 is Inquest Panchanama. Ex.P9 is Confession and Seizure Panchanama. Ex.P10 is relevant portion of Confession and Seizure Panchanama. Ex.P11 is the Scene of offence panchanama. Ex.P12 is another Crime Details Form. Ex.P13 is Seizure Panchanama. Ex.P14 is FSL report, dated 05.01.2012. Ex.P15 is PME report, dated 12.11.2011. Ex.P16 is FIR. MO.1 is the T-shirt of the deceased. MO.2 is the cotton nicker of the deceased. MO.3 is a plastic bag. MO.4 is a turkey towel. MO.5 is a CD. MO.6 is motor cycle. MO.7 is iron telephone angular. MO.8 is Ash. MO.9 is quarter bottle empty.
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9. When the appellants/A1 to A3 were confronted with the incriminating material appearing against them and were examined under Section 313 of Cr.P.C., they denied the allegations and claimed to be tried.
10. The trial Court, having considered the submissions made and the evidence available on record, vide the impugned judgment, dated 31.05.2013, convicted the appellants/A1 to A3 of the offences under Sections 302, 201 r/w 34 IPC and sentenced them as stated supra. Aggrieved by the same, the appellants/A1 to A3 preferred this appeal.
11. Learned counsel for the appellant/accused would submit that the whole prosecution case is based on circumstantial evidence. There are no direct witnesses to connect the appellant/accused with the death of the deceased. The Court below erroneously arrived at a conclusion without there being substantial evidence to prove the guilt of the appellants/A1 to A3 beyond all reasonable doubt for the offences under Sections 302, 201 r/w 34 IPC. PWs.7 and 8 are village revenue officers. They were pressed into service to speak about false recovery of MOs.3, 4, 8, 9 and Ex.P2. The motive for commission of offence was not proved by the prosecution beyond all reasonable doubt. There is delay in lodging 7 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 FIR with the police. Without there being any substantial evidence, the appellants/A1 to A3 were convicted and sentenced by the Court below as indicated above. Furthermore, no bloodstains were found on MO.7-Iron Telephone Angular. There is no cogent and convincing evidence to prove the guilt of the appellants/A1 to A3 beyond all reasonable doubt. The circumstances of the case do not clinchingly establish that it is the appellants/A1 to A3 who have committed the murder of the deceased and thrown the dead body in the Right canal of Wyra Reservior. The circumstances from which an inference of guilt is sought to be drawn against the appellants/A1 to A3 are not cogently and firmly established by the prosecution. The chain of events is not so complete to rule out the reasonable likelihood of innocence of the appellants/A1 to A3. Without there being any cogent and convincing evidence, the Court below erroneously convicted and sentenced the appellants/A1 to A3 of the offence under Sections 302, 201 r/w 34 of IPC and ultimately prayed to allow the appeal by setting aside the conviction and sentence imposed against the appellants/A1 to A3 by the trial Court.
12. On the other hand, the learned Public Prosecutor would submit that the appellant/A1 had illegal intimacy with the appellant/A2, who is the wife of the deceased. All the accused 8 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 hatched plan to do away with the life of the deceased and in pursuance of the same, the deceased was killed on the intervening night of 10/11.11.2011 at Rebbavaram Village of Wyra Mandal. Thereafter, the dead body of the deceased was taken on a motorcycle (MO.6) and was thrown in the Right Canal of Wyra Reservior. There is evidence of PW.9-doctor who conducted autopsy over the dead body of the deceased to the effect that the cause of the death of the deceased is due to multiple fractures and injuries leading to cardio respiratory failure and death and that the injuries on the dead body of the deceased can be caused with a blunt object like MO.7-iron telephone angular. The confession made by the appellant/A1 and recovery of material objects pursuant to his confession, clinchingly prove the guilt of the appellants/A1 to A3 beyond all reasonable doubt of the offences under Sections 302, 201 r/w 34 of IPC. The prosecution proved the guilt of the appellants/A1 to A3 of the offences under Sections 302, 201 r/w 34 of IPC beyond all reasonable doubt. All the circumstances brought out against the appellants/A1 to A3 are of conclusive nature and definite tendency and they exclude every possible hypothesis of innocence of the appellants/A1 to A3. The chain of evidence led by the prosecution is complete and do not leave any reasonable ground for the conclusion consistent with the 9 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 innocence of the appellants/A1 to A3. The Court below is justified in convicting and sentencing the appellants/A1 to A3 of the offences under Sections 302, 201 r/w 34 of IPC and ultimately prayed to dismiss the appeal by confirming the conviction and sentence recorded against the appellants/A1 to A3 vide the impugned judgment.
13. In view of the above submissions made by both sides, the points that arise for determination in this appeal are as follows:
1) Whether the death of the deceased-K.Purna Krishna Prasad is homicidal?
2) Whether the appellants/A1 to A3 have caused the subject death of the deceased?
3) Whether the prosecution is able to prove the guilt of the appellants/A1 to A3 of the offences under Sections 302, 201 r/w 34 of IPC beyond all reasonable doubt?
4) Whether the conviction and sentence recorded against the appellant/accused of the offences punishable under Sections 302, 201 r/w 34 of IPC is liable to be set aside?"
5) To what result? POINT:-
14. There is no dispute that the whole prosecution case is based on circumstantial evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the 10 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 conclusion of guilt is drawn should be fully proved, and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The question whether chain of circumstances unerringly established the guilt of the accused needs careful consideration. The proof of a case based on circumstantial evidence, which is usually called 'five golden principles', have been stated by the Apex Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra1, which reads as follows:-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.1
AIR 1984 Supreme Court 1622 11 Dr.SA,J & EVV,J Crl.A.No.620 of 2013
15. Keeping the above principles in mind, we would now venture to analyze the evidence on record. There is evidence of PW.9- doctor coupled with Ex.P15-PME Report to prove that the subject of the deceased was homicidal and was caused on the intervening night of 10/11.11.2011. As per Ex.P15-PME Report, the following injuries were found on the dead body of the deceased.
1. Crushed fractures middle and both sides of mandible
2. Upper and lower incisors and canines hanging and fractured.
3. Healed injury (sutures removed) right knee
4. Abrasions - two in number front of left leg above ankle. PW.9-doctor deposed in his evidence that the cause of the death is due to multiple fractures and injuries leading to cardio respiratory failure and death. The same is mentioned in Ex.P15-PME Report also. There is also evidence to substantiate that after causing the subject death of the deceased, the dead body was thrown in the Right canal of Wyra Reservior. There is corroboration and consistency in the evidence of PW.9-doctor and Ex.P15-PME Report. Ex.P14 is the FSL report in which it was mentioned that no poisonous substance was found in the stomach, intestine, liver and kidney of the deceased. The evidence of PW.9-doctor coupled with Ex.P14-FSL Report and Ex.P15-PME Report prove that the death of the deceased-K.Purna Krishna Prasad is homicidal. Further, there is no dispute that the subject death is homicidal.
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16. Now the point that requires answer is as to whether the appellants/A1 to A3 have caused the subject death of the deceased.
17. PW.1 is the brother of the deceased. He is not a direct witness to the subject offence. He deposed that the deceased was his elder brother. A1 is the friend of the deceased and A3 is the friend of A1. Prior to marriage of the deceased with A2, the deceased developed illegal intimacy with her. Thereafter, A2 came to their house as a tenant and the deceased continued illegal intimacy with A2. The deceased and A2 got married against the wishes of elders. After marriage, the deceased left along with A2 to Rebbavaram village and doing business there. During that time, the deceased met with an accident and got admitted in Government Hospital, Khammam. Knowing the same, PW.1 and his parents went to hospital to see him. At that time, they all noticed that A2 was moving closely with A1. On that, the deceased shouted at A2. After that incident, A2 left the deceased and went along with A1 and did not turn up to hospital. After discharge from hospital, the deceased went to his house at Rebbavaram. Three days prior to his death, the deceased called PW.1 and informed that there was a danger to his life at the instance of A1 and A2. Four days thereafter, PW.1 received 13 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 information from LW2-Dhanalaxmi that the dead body of the deceased was found at Wyra Reservior and that he was murdered by someone. Then, PW.1 rushed to the spot and noticed bleeding injuries on the face and the body was packed in a plastic bag. The bandages for his right leg and right hand were also not removed. Suspecting that A1 and A2 had murdered the deceased, PW.1 lodged a report with the police. Though PW.1 was cross-examined at length, noting contra was elicited to disprove his testimony in examination-in-chief.
18. PW.2 is the sister of the deceased. She is also not a direct witness to the subject offence. She also deposed on the same lines as deposed by PW.1. She further deposed that herself and PW.1 saw the dead body of the deceased in a plastic bag and his bandages also found to his hand and leg and his face was with multiple injuries and it was swollen. She identified MO.1-Tshirt, MO.2-cotton nicker and MO.3-plastic bag. Though PW.2 was cross-examined at length, nothing contra was elicited to disprove his testimony in examination-in-chief.
19. PW.3 is a resident of Rebbavaram village. He turned hostile and did not support the case of prosecution.
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20. PW.4 deposed that in the year 2011, in the month of November, he along with their villagers went to Wyra Reservior Right Canal on the information that one male dead body was floating in the water. They noticed a dead body in the reservoir. He and Sk.Hussain lifted the dead body from the water and placed on the ground at the instance of police. The dead body was tied in a plastic bag. They removed the plastic bag and noticed the dead body of a male person. With the help of identity card, they came to know that the name of the deceased as Poorna Krishna Prasad. They also noticed bandages on the leg and hand of the dead body and injuries on the face of the deceased.
21. PW.5 deposed in his evidence that on 12.11.2011, while he was going along with his children to drop them at school, on the way, at about 08:00 AM, at 7th Canal of Wyra Reservoir, one farmer stopped his motorcycle and told that something in a plastic bag was floating in the water and requested him to find out the same. On that, he stopped the vehicle, went and saw one dead body in plastic bag floating in water. Then, he intimated the same to the Wyra Police. In his cross-examination, PW.5 stated that he could not identify the dead body and he does not know about his particulars.
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22. PW.6 is the photographer who spoke about taking photographs of the dead body of the deceased.
23. PW.7 deposed in his evidence that on 12.11.2011, the MRO instructed him and LW9-Sk.Nagur to go to Wyra Reservoir right canal 7th sluice (Thoomu) since there was male dead body traced out by the police. Accordingly, both of them went there. The police conducted scene of panchanama and drafted rough sketch in their presence. The police seized MO.3-plastic bag, MO.4-parrot green turkey towel Ex.P2-identity card in their presence. Both of them attested Ex.P7-Crime Details Form. Then, police conducted inquest over the dead body of the deceased and both of them attested the same.
24. PW.8 deposed that he was working as VRO at Chirumarri. He deposed that he saw A1 to A3 on the date of their confession, at the bus stand. The police, Wyra, called him and co-panch witness to the Bus stand on 15.11.2011 and both of them went there. A1 to A3 confessed before them that they committed the subject offence. The police seized MO.7-iron telephone angular at the instance of the accused. He and co-panch witness attested Ex.P11-Seizure panchanama and Ex.P12-Crime Details form. He 16 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 and his co-panch witness also attested Ex.P13-Seizure Panchanama of MO.8 and MO.6.
25. PW.9 deposed in his evidence that on 12.11.2011, on the request of Police, Wyra, he conducted Post-mortem examination on the dead body of the deceased and found the following injuries on the dead body of the deceased (1) Crushed fractures middle and both sides of mandible; (2) Upper and lower incisors and canines hanging and fractured; (3) Healed injury (sutures removed) right knee; and (4) Abrasions - two in number front of left leg above ankle. The FSL Report under Ex.P14 contains that no poisonous substance is found. Basing on Ex.P14 and the injuries, he issued Ex.P15-PME Report. He further deposed that the injuries on the dead body of the deceased can be caused due to the weapon like blunt object like MO.7, i.e., Iron Telephone Angular. PW.9-doctor deposed in his evidence that the cause of the death is due to multiple fractures and injuries leading to cardio respiratory failure and death.
26. PW.10 is the investigating officer. He deposed that basing on Ex.P1 report, he registered a case in Crime No.155 of 2011 for the offence under Section 302 of IPC, examined PW.1 and recorded his statement, visited the scene of offence, i.e., the place 17 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 where the dead body was floating in the water, brought the dead body out of the water with the help of LW.5-Sk.Hussain and PW.4, secured the presence of panch witnesses, i.e., PW.7 and LW.9- S.Nagur, prepared Crime Details Form under Ex.P7 and seized MOs.3, 4, Ex.P2-identity card in their presence, conducted inquest panchanama under Ex.P8, examined PWs.1 to 5 and LW.5, got photographed the dead body of the deceased and the scene of offence, sent the dead body for Post-Mortem Examination, apprehended the appellants/A1 to A3, seized MO.6 pursuant to their confession, again visited the scene of offence and seized MO.7 under Ex.P11, conducted another Crime Details form under Ex.P12, proceeded to the outskirts of Thallada Village where the accused burnt the blood stained bed sheets and pillows and seized MOs.8 and 9 under a cover of panchanama, sent the seized material to Forensic Science Laboratory for report, after receipt of PME Report and after completion of investigation, laid charge- sheet before the learned Judicial Magistrate of First Class, Madhira, against the appellants/A1 to A3 for the offences under Sections 302, 201 r/w 34 of IPC.
27. Admittedly, there are no direct witnesses to the subject incident and the entire prosecution case is based on circumstantial evidence. The evidence of PW.8 is to the effect that as per the 18 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 request of police, he along with other panch witness asked the appellants/A1 to A3 one after the other as to what for they were present at the bus stand and then, the appellants/A1 to A3 confessed before them with regard to commission of subject offence. Here, it is apt to state that every confession is an admission, but every admission is not a confession. In other words, admission is a genus and confession is a species. It is settled law that a confessional statement, if not made by accused under inducement, threat or promise, is admissible in evidence. Under the Indian Evidence Act, 1872 (for short, 'the Act'), to guard against coerced or coaxed confessional statement, in addition to the safeguards provided in Section 24 of the Act, any confession made to a police officer under any circumstances is also considered inadmissible in evidence, as per Section 25 of the Act. Section 26 of the Act goes a step further and provides that no confession made by any person whilst in custody of a police officer, unless such confession is made in the immediate presence of a Magistrate, can be proved against such person. Thus, Sections 24 to 26 of the Act forms a trio containing safeguards against an accused person, being coerced or induced to confess guilt. One important question, in regard to which the Court has to be satisfied with, is whether, when the accused made the 19 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 confession, he was a free man or his movements were controlled by the police, either by themselves or through some other agency employed by them, for the purpose of securing such a confession. Police custody, in real perspective, commences from the time when the movements of the accused are restricted or controlled and he is kept in direct or indirect police surveillance. It is not necessary that there should have been a formal arrest. It is not the presence of one particular person or officer or of any one of these circumstances that would by itself decide the question as to whether the accused was in police custody; it is, on the other hand, the concomitance of the various facts and circumstances, which are relevant and material, immediately preceding the making of the statement by the accused that has to be taken into account in making a proper assessment as to whether the statement alleged to have been made by the accused is not hit by Section 26 of the Act. The paramount consideration of the Court should be to see that the statement is not hit by any of the provisions contained in Sections 24 to 26 of the Act and it was made voluntarily and was a true statement, which could be acted upon, even when found admissible in evidence. Tested in the light of the above broad principles, in the instant case, we find it difficult to hold that the statements that was made by the 20 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 appellants/A1 to A3 to PW.8 is voluntarily, as a free agent and that it is not hit by the provisions of Section 26 of Evidence Act, for the application of which, it makes little difference, whether the statements was made directly to the police officer or to any agency employed by the police for securing the confession. Further, the statements allegedly made by the appellants/A1 to A3 are full of facts and gives a graphic description of their acts on the day of occurrence. Thus, the alleged confession made by the appellants/A1 to A3 could hardly be the natural conduct of an accused, if he/she is voluntarily making such a confession and thereby, makes the confession unbelievable. In view of these discrepancies, we are of the view that it is not safe to act upon the alleged confession made by the appellants/A1 to A3 to PW.8. When the alleged confession made by the appellants/A1 to A3 is itself doubtful, the consequential recovery of material objects pursuant to their alleged confession, i.e., MO.6-motor cycle, MO.7- Iron Telephone Angular, MO.8-ash and MO.9-Quarter empty bottle would not have any bearing over the case.
28. There are yet other circumstances which renders the prosecution case doubtful. As per the case of prosecution, the motive on the part of the appellants/A1 to A3 for their alleged commission of the subject death is that he was causing 21 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 interference with the illegal intimacy between the appellants/A1 and A2. As rightly contended by the learned counsel for the appellants/A1 to A3, the alleged illegal intimacy itself between the appellants/A1 and A2 could not be made out by the prosecution and hence, no motive can be attributed to the appellants/A1 to A3 for their alleged commission of subject death. Further, as per Ex.P14-FSL Report with regard to chemical analysis of viscera belonging to the deceased, no poisonous substance was found in the stomach, intestines, liver and kidneys of the deceased. Further, as per the evidence of PW.8, the police seized MO.8-ash at 14th KM stone of R&B BT Road from Thallada to Kalluru, at the instance of the appellants/A1 to A3. MO.8-ash need not necessarily pertain to the burning of the bloodstained bed sheets and pillows and this would not connect the appellants/A1 to A3 with the subject accusation made against them. The evidence led by the prosecution, at the most, leads to a suspicion that the appellants/A1 to A3 might have committed the subject offence. It is settled law that suspicion, however strong it may be, cannot take place of legal proof and a conviction should not and cannot be based upon suspicion.
29. The circumstances taken cumulatively do not form a chain so complete to establish that in all human probability the subject 22 Dr.SA,J & EVV,J Crl.A.No.620 of 2013 death was caused by the appellants/A1 to A3 and none else. There is no evidence, much less cogent and convincing evidence, to arrive at a conclusion, which is consistent with the guilt of the appellants/A1 to A3. In view of the above findings and the discussion, we are of the considered opinion the prosecution failed to prove the guilt of the appellants/A1 to A3 by leading cogent and convincing evidence. The Court below ought not have found the appellants/A1 to A3 guilty of the offences under Sections 302, 201 r/w 34 of IPC. In our view, it is a fit case to extend benefit of doubt in favour of the appellants/A1 to A3 and acquit them of the offences charged against them.
30. In the result, the conviction and sentence recorded against the appellants/A1 to A3 of the offences under Sections 302, 201 read with 34 of IPC vide judgment, dated 31.05.2013, passed in S.C.No.548 of 2012 by the learned III Additional Sessions Judge (FTC), Khammam, is set aside. Consequently, the appellants/A1 to A3 are acquitted of the offences under Sections 302, 201 read with 34 of IPC. The fine amount, if any, paid by the appellants/A1 to A3 shall be refunded to them. The appellants/A1 and A3 were remanded to judicial custody pursuant to the order, dated 20.09.2022, passed by this Court. They shall be released forthwith, if they are not required in any other case.
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31. The Criminal Appeal is, accordingly, allowed.
Miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J _________________ E.V.VENUGOPAL, J 21st September, 2022 BVV