Telangana High Court
Chandamalla Raju, Khammam Dt., vs State Of Ap., Rep. Pp., Hyd., on 14 July, 2022
Author: Shameem Akther
Bench: Shameem Akther, N.Tukaramji
THE HON'BLE Dr. JUSTICE SHAMEEM AKTHER
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
CRIMINAL APPEAL No.429 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 appellant/accused, aggrieved by the judgment, dated 13.09.2012, passed in S.C.No.136 of 2011 by the II Additional Sessions Judge (FTC), Khammam, whereby, the Court below convicted the appellant/accused of the offences punishable under Sections 302, 201 and 404 of IPC and sentenced him to undergo rigorous imprisonment for life and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for three months for the offence under Section 302 of IPC; to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for three months for the offence under Section 201 of IPC; and to undergo rigorous imprisonment for two years and to pay fine of Rs.200/-, in default, to undergo simple imprisonment for two month for the offence under Section 404 of IPC. All the sentences were directed to be run concurrently.
2. We have heard the submissions of Sri A.Prabhakar Rao, learned counsel for the appellant/accused, Sri C.Pratap Reddy, 2 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 learned Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is as follows:
On 02.05.2010, PW.1-Thippireddy Rama Krishna Reddy, went to Khammam Rural Police Station and lodged Ex.P1 complaint stating that on that day at about 06:00 AM, one Siddineni Kotaaiah (PW.2) of Teldarpalli Village telephoned him and stated that he went to his mango garden in Sy.No.360, which is by the side of NSP canal, and when he reached the mango garden gate, he found half burnt body of a woman near the gate, in the land of Sagar canal. Then PW.1 reached there and found that the deceased woman was aged about 35 years to 40 years. He found injuries on her forehead and left side. He found beer bottles, condoms, tablets and blood near the dead body and the dead body was half burnt. The deceased women was wearing yellow colour blouse and applied mehendi to her head.
Some unknown persons brought an unknown woman for prostitution, quarreled with her, murdered her and burnt the dead body for causing disappearance of the evidence. The incident might have taken place last midnight and requested to take necessary action against the offenders.
3 Dr.SA,J & NTR,J Crl.A.No.429 of 2013
4. Basing on the report lodged by PW.1, PW.20-SI of Police Khammam Rural Police Station, registered a case in Crime No.111 of 2010 for the offences under Sections 302 & 201 of IPC and issued Ex.P24-FIR, informed about registration of Ex.P24-FIR to PW.18-CI of Police and also to PW.16-Finger Print Expert/Inspector, Khammam, sent a requisition to PW.16 to visit the scene of offence and handed over the CD file to PW.18-CI of Police, Kusumanchi, for investigation. PW.18 took up investigation, visited the scene of offence along with PW.20, observed the scene of offence and prepared Ex.P5-Crime Details Form in the presence of PW.12 and LW.14-Gunti Venkanna, recorded the statements of PWs.1 to 3 and got the scene of offence photographed and videographed by PW.4. On requisition, PW.16-Finger Print Expert, along with his team, reached the scene of offence and lifted chance prints from the available articles at the scene of offence. PW.18-CI of Police seized two used condoms, MO.9-unused condom, MO.8-Two Zeebee tablets, MO.11-one empty beer bottle, MO.12-beer bottle pieces, MO.10- Cigartte pieces, MO.13-broken bangle pieces, MO.7-one gold ring, MO.17-plastic disposable glasses, MO.16-cotton rope, MO.15-control earth and MO.14-blood stained earth from the scene of offence, conducted inquest over the dead body of the deceased under Ex.P4 in the presence of PW.11 and LW.14-Gunti Venkanna and sent the 4 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 dead body to the Government Hospital, Khammam, for Post-mortem examination. PW.17-Dr.K.Prasanna Jyothi and LW.18-Dr.Zia Khan conducted autopsy over the dead body of the deceased and issued Post-Mortem Examination Report under Ex.P19. Subsequently, PW.19-CI of Police, Khammam Rural Police Station, took up further investigation. On 03.05.2010, on seeing the newspaper about the death of unknown female person, PW.5, along with LW.6-Shaik Yakub Ali, came to PW.19 and expressed a doubt that the said unknown female dead body might be of his wife. Immediately, PW.19 sent PW.5 to Government Hospital, Khammam, where, PW.5 identified the deceased as his wife. Immediately, PW.19 reached the Government Hospital, Khammam, examined PW.5, PW.6, LW6-Shaik Yakub Ali, LW.8-Shaik Abdul and recorded their statements, handed over the dead body of the deceased to PW.5, secured the cell number of the deceased and sent a requisition to the Superintendent of Police to obtain call details of cell phone of the deceased, arrested the appellant/accused on 09.05.2010, interrogated him in the presence of PW.13 and LW.17-Koppula Janakiramulu during which, the appellant/accused confessed the commission of offence, recorded his confessional statement under Ex.P6, recovered MO.1-one gold bead chain with rold gold locket, MO.2-one pair of ear studs, MO.4- one pair of silver anklets, MO.5-one ladies wrist watch, MO.6-one 5 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 black colour Nokia cell phone, took the finger prints of the appellant/accused on Finger Print slips in the presence of PW.13 and LW.17 and on completion of investigation, laid charge-sheet before learned II Additional Judicial Magistrate of First Class at Khammam against the appellant/accused of the offences punishable under Sections 302, 201 and 404 of IPC.
5. The learned Magistrate had taken cognizance against the appellant/accused of the offences under Sections 302, 201 and 404 of IPC, registered the same as P.R.C.No.4 of 2011 and committed the same to the Court of Session, Khammam, since the offence under Section 302 of IPC is exclusively triable by the Court of Session. On committal, the Court of Session numbered the case as S.C.No.136 of 2011 and made over to the Court below for trial and disposal, in accordance with law.
6. On appearance of the appellant/accused, the Court below framed charges against him of the offences under Sections 302, 201 and 404 of IPC, read over and explained to him, for which, the appellant/accused pleaded not guilty and claimed to be tried.
7. To prove the guilt of the appellant/accused, the prosecution examined PWs.1 to 20 and got marked Exs.P1 to P24, besides case properties, MOs.1 to 17.
6 Dr.SA,J & NTR,J Crl.A.No.429 of 2013
8. PW.1-Thippireddy Rama Krishna Reddy is the complainant. PW.2-Siddeneni Kotaiah is the owner of Mango garden. PW.3- Janimiya is the watchman of the mango garden belonging to PW.2. PW.4-Kondaparthi Raghuram is the photographer. PW.5- Sk.Sattarmiya is the husband of the deceased. PW.6-Sk.Kareem is the relative of PW.5, who had last seen the deceased. PW.7-Jalla Rama Rao is the owner of Dhaba Hotel. PW.8-Parupalli Kalyan Sahu is the owner of Medical Hall. PW.9-N.V.Ramananujam, Traffic S.I., is a circumstantial witness. PW.10-Sk.Mumtaz Begum is the daughter of the deceased. PW.11-Gajji Bharathamma is a panch witness for inquest. PW.12-Samineni Venkaiah is a panch witness for Crime Details Form. PW.13-Kolipaka Prasad Rao is a panch witness for Confession and Seizure Panchanama. PW.14-Dr.M.Narayana is the doctor who conducted potency test to the appellant/accused. PW.15- P.Purushotam is Assistant Manager (Legal) of Idea Cellular Limited. PW.16-K.S.Venugopal is the Finger Print Expert in the office of the District Finger Print Unit. PW.17-Dr.K.Prasanna Jyothi is the doctor who conducted autopsy over the dead body of the deceased. PW.18- R.Saibaba is the Circle Inspector of Police and the first investigating officer. PW.19-P.Naresh Reddy is the Circle Inspector of Police who arrested the appellant/accused and laid charge-sheet. PW.20- V.Ravinder Reddy is the SI of police who issued FIR. Ex.P1 is the 7 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 complaint. Ex.P2 is photographs (10) along with CD. Ex.P3 is Vide CD. Ex.P4 is Inquest Report. Ex.P5 is Crime Details Form. Ex.P6 is relevant portion in Confession-cum-Seizure Panchanama. Ex.P7 is Panchanama, dated 09.05.2010. Ex.P8 is Potency Certificate of the appellant/accused. Ex.P9 is Letter addressed by PW.15. Ex.P10 is Photostat copy of call details pertaining to mobile No.9912326914. Ex.P11 is Photostat copy of call details pertaining to mobile No.9948111568. Ex.P12 is Photostat copy of customer's application form. Ex.P13 is Photostat copy of identity card of the appellant/accused. Ex.P14 is Report, dated 03.05.2010. Ex.P15 is Report, dated 13.05.2010. Ex.P16 is Final Report, dated 14.05.2010. Ex.P17 is Finger Print slip. Ex.P18 is Identical photo comparison chart. Ex.P19 is PME Report. Ex.P20 is FSL Report, dated 14.07.2008. Ex.P21 is Newspaper cutting. Ex.P22 is Report of the FSL, dated 23.09.2011. Ex.P23 is FSL Report, dated 28.06.2010. Ex.P24 is FIR. MO.1 is one gold bead chain with rold gold locket. MO.2 is one pair of ear studs. MO.3 is one pair of rold gold bangles. MO.4 is one pair of silver anklets. MO.5 is one ladies wrist watch. MO.6 is one black colour Nokia cell phone. MO.7 is one gold ring. MO.8 is two Zeebee tablets. MO.9 is unused condom. MO.10 is Cigarette pieces. MO.11 is one empty beer bottle. MO.12 is beer bottle pieces. MO.13 is broken bangle pieces. MO.14 is blood 8 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 stained earth. MO.15 is controlled earth. MO.16 is cotton rope. MO.17 is plastic disposable glasses. MO.18 is shirt. MO.19 is pant. MO.20 is blue colour Nokia cell phone. MO.21 is motorcycle bearing No.AP-28-AP-1398.
9. When the appellant/accused was confronted with the incriminating material appearing against him and was examined under Section 313 of Cr.P.C., he 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 13.09.2012, convicted the appellant/accused of the offences punishable under Sections 302, 201 and 404 of IPC and sentenced him as stated supra. Aggrieved by the same, the appellant/accused 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 appellant/accused beyond all reasonable doubt for the offences under Sections 302, 201 and 404 of IPC. There are material 9 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 omissions in the evidence of PW.6, who deposed that the appellant/ accused and the deceased were last seen together on 01.05.2010 around 08:00 PM. Further, the specimen fingerprints of the appellant/accused were not taken the presence of a Magistrate in accordance with Section 5 of Identification of Prisoners Act, which is fatal to the case of prosecution. Hence, no reliance can be placed on the evidence of PW.16-Finger Print Expert. Further, PW.19- investigating officer stated in his evidence that he recovered MO.2- one pair of ear studs and MO.4-one pair of silver anklets from the possession of the appellant/accused pursuant to the confession made by him. But as per column VII of Ex.P4-Inquest Report, MO.2 and MO.4 were found on the dead body of the deceased. Therefore, Ex.P6-confession and seizure panchanama appears to be fabricated and brought into existence for the purpose of this case and no reliance can be placed on the same. Further, none of the prosecution witnesses had deposed that the appellant/accused committed theft of MOs.1 to 6 after commission of the subject murder. It is not a case of murder for gain. There is no cogent and convincing evidence to convict the appellant/accused of the offences under Sections 302, 201 and 404 of IPC. The prosecution failed to prove the guilt of the appellant/accused beyond all reasonable doubt of the said offences and ultimately prayed to allow the appeal by setting aside the 10 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 conviction and sentence recorded against the appellant/accused and acquit him of the said offences. In support of his contentions, the learned counsel had relied on Manepalli Anjaneyulu Vs. State of A.P.1, Ashish Jain Vs. Makrand Singh and others2, Prakash Vs. State of Karnataka3, and Mohd.Aman and another Vs. State of Rajasthan4
12. Per contra, the learned Public Prosecutor would submit that PW.6 has prior acquaintance with the appellant/accused and the deceased. He deposed in his evidence that on 01.05.2010 at about 08:00 PM, he saw the appellant/accused and the deceased proceeding on a motorbike towards Peddathanda. The subject death was caused on the intervening night of 01/02.05.2010. There is medical evidence and other oral and documentary evidence to substantiate the subject death. The appellant/accused was arrested on 09.05.2010 and he confessed the commission of the subject offence. Pursuant to the confession of the appellant/accused, MOs.1 to 6 and 18 to 21 were seized from his possession, in the presence of PW.13 and another panch witness. The investigating officer, during the course of investigation, collected MO.12-beer bottle pieces found at the crime scene and sent the same to the PW.16-finger print expert for analyzing the finger prints on the beer bottle pieces along 1 1999 CRI.L.J. 4375 2 AIR 2019 Supreme Court 546 3 2014 (2) ALT (Crl.) 425 (SC) 11 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 with the specimen finger prints of the appellant/accused. As per Ex.P18-identical photo comparison chart issued by PW.16, the finger prints on the broken beer bottle pieces and the specimen finger prints of the appellant/accused are identical with each other and they are made by the same finger of the same person. The confession made by the appellant/accused and recovery of material objects pursuant to his confession clinchingly prove the guilt of the appellant/accused beyond all reasonable doubt of the offences under Sections 302, 201 and 404 of IPC. The Court below is justified in convicting and sentencing the appellant/accused of the said offences and ultimately prayed to dismiss the appeal by confirming the conviction and sentence recorded against the appellant/accused vide the impugned judgment. In support of his contentions, the learned Public Prosecutor had relied on a decision of the Hon'ble Apex Court in Gorusu Nagaraju Vs. State of Andhra Pradesh5.
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-Shaik Sakina Bee is homicidal?
2) Whether the appellant/accused had caused the subject death of the deceased?4
(1997) 10 Supreme Court Cases 44 5 AIR 2018 SC 1897 12 Dr.SA,J & NTR,J Crl.A.No.429 of 2013
3) Whether the prosecution is able to prove the guilt of the appellant/accused beyond all reasonable doubt?
4) Whether the conviction and sentence recorded against the appellant/accused of the offences punishable under Sections 302, 201 and 404 of IPC is liable to be set aside?"
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 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 Maharashtra6, 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 6 AIR 1984 Supreme Court 1622 13 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 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.
15. Keeping the above principles in mind, we would now venture to analyze the evidence on record. There is evidence of PW.17-doctor coupled with Ex.P19-PME Report to prove that the subject of the deceased was homicidal and was caused on the intervening night of 01/02.05.2010. PW.17-doctor deposed in her evidence that the cause of the death of the deceased is due to 'shock due to cranial cerebral injury'. The same is mentioned in Ex.P19-PME Report also. As per Ex.P4-Inquest Report, the deceased was found with (1) an injury 1½ inches length and 1 inch deep on her fore head, (2) an injury one inch length and one inch deep on her left eye, (3) there is another wound on right side of head. There is also evidence to substantiate that after causing the subject death of the deceased, the dead body was partially burnt. There is corroboration and consistency in the evidence of PW.17-doctor and Ex.P19-PME Report. The evidence of PWs.1 to 4, 11, 17 coupled with Ex.P19 clinchingly 14 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 prove that the death of the deceased-Shaik Sakina Bee is homicidal. Further, there is no dispute that the subject death is homicidal.
16. Now the point that requires answer is as to whether the appellant/accused caused the subject death of the deceased and robbed MO.1-one gold bead chain with rold gold locket, MO.2-one pair of ear studs, MO.3-one pair of rold gold bangles, MO.4-one pair of silver anklets, MO.5-one ladies wrist watch and MO.6-one black colour Nokia cell phone from the deceased. PWs.1 to 3 are circumstantial witnesses. They did not say anything incriminating against the appellant/accused.
17. PW.5-Sk.Sattarmiya is the husband of the deceased. He deposed that the deceased left the house on 01.05.2010 at about 06:00 PM stating that she received a phone call from her Head Master and she is going to Head Master's house; the deceased did not return to the house; on 03.05.12010, he saw a news item with regard to unidentified dead body lying in the mortuary room; and he went to the mortuary room along with the police and identified the dead body as his wife. He also identified MOs.1 to 7.
18. PW.6-Sk.Kareem is a crucial witness in this case. He deposed that the deceased is the wife of his maternal uncle and he knows her. He also knows the accused as he saw him two times in the house of 15 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 the deceased. On 01.05.2010, when he was at Kalvavoddu, Khammam Town, at about 08:00 PM, the deceased and the appellant/accused were proceeding on motor bike towards Peddathanda. At that time, the appellant/accused was riding the motorbike. On seeing him, the deceased stopped the vehicle and asked him as to why he was there. On 03.05.2010 at 08:00 AM, his brother told him through phone that the deceased was killed by somebody and the body was lying in the Mortuary room. The specific evidence of PW.6 is that he knows the appellant/accused as he saw him two times in the house of the deceased. When this statement was confronted with PW.19-investigating Officer, it was elicited from PW.19 that PW.6 did not state before him in his earlier statement under Section 161 of Cr.P.C. that he saw the appellant/accused earlier on two occasions at the house of the deceased. There is no other evidence on record that there was prior acquaintance between PW.6 and the appellant/accused. Hence, the uncorroborated statement of PW.6 that he knows the accused as he saw him two times in the house of the deceased loses credibility. It is a material omission. Further, as per the evidence of PW.19-investigating officer, MOs.1 to 6 were recovered pursuant to the confession made by the appellant/accused under a cover of panchanama. MO.2 is one pair ear studs and MO.4 is one pair of silver anklets. These two 16 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 material objects are finding place in Column VII of Ex.P4-Inquest Report. Hence, finding place of MOs.2 and 4 in Ex.P4-Inquest Report falsifies the version of PW.19-investigating officer that those two material objects were seized from the possession of the appellant/accused, pursuant to the confession made by him, in the presence of panch witnesses.
19. Learned counsel for the appellant/accused contended that the specimen fingerprints of the appellant/accused were not taken the presence of a Magistrate in accordance with Section 5 of Identification of Prisoners Act and the same is fatal to the case of prosecution. There is merit in the said submission. Here, it is apt to extract Section 5 of Identification of Prisoners Act, 1920, which reads as follows:
5. Power of Magistrate to order a person to be measured or photographed.--If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)† it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class.
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.
17 Dr.SA,J & NTR,J Crl.A.No.429 of 2013
20. While Section 4 of The Identification of Prisoners Act, 1920, mandates that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner, Section 5 of the said Act empowers the Magistrate to direct a person to give measurements, upon being satisfied that the same is necessary for the purpose of investigation. It is needless to state that measurements would include finger print impressions also. There is a catena of judgments of the Hon'ble Apex Court as well as various Hon'ble High Courts, wherein, it was held that where the provisions of Section 5 of The Identification of Prisoners Act, 1920 are violated, specimen samples pertaining to the fingerprints, handwriting etc., of an accused and the incriminating evidence stipulated in the reports relatable thereto would be inadmissible in evidence and hence has to be excluded while considering the circumstantial evidence against the accused.
21. In Prakash's case (3 supra), the Hon'ble Apex Court observed as follows:
"Further, in cases of circumstantial evidence, there should be some degree of trustworthiness and certainly about existence of circumstance, mere probabilities certainly not enough; High Court proceeded merely on the basis of probabilities; Last seen theory accordingly has no applicability; no evidence on record t show how Ex.P-20, which is said to be admitted fingerprint of accused, came into existence to involve accused in present offence; I.O. ought to 18 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 have approached Magistrate for necessary orders as per Section 5 of Identification of Prisoners Act, 1920, to have his admitted fingerprint for comparison; herein, no credence can be given to fingerprint identification; no identification of ornaments of deceased that were recovered from the accused."
22. In Mohd.Aman's case (4 supra), the Hon'ble Apex Court held as follows:
"Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also cast a serious mistrust as to genuineness of the evidence. Even though the specimen finger prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.
In the instant case, the prosecution placed heavy reliance over the evidence of PW.6 to establish the 'last seen theory'. There is material omission in the evidence of PW.6, i.e., he saw the appellant/accused earlier on two occasions at the house of the deceased. He is not a trustworthy witness. Therefore, the chance finger prints lifted from the scene of offence ought to have been compared with the sample finger prints of the prisoner, only after obtaining permission from the Magistrate and after the proper identification of the prisoner, as envisaged in Section 5 of The Identification of Prisoners Act, 1920. In the instant case, since the finger prints of the appellant/accused were not taken before or under 19 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 the order of the Magistrate, it was unsafe to accept the evidence led in this regard. In any case, this Court is of the opinion that that Section 4 and Section 5 of The Identification of Prisoners Act, 1920, are independent of each other. Even otherwise, though it is shown that that the finger prints of an accused were obtained in the presence of a Magistrate as per the procedure laid down in Section 5 of The Identification of Prisoners Act, 1920, even then it is not safe to base conviction merely on the basis of expert's opinion.
23. Further, as seen from the entire investigation conducted in this case and the evidence on record, it cannot be safely concluded that PW.6 has got prior acquaintance with the appellant/accused. Moreover, he is said to have been seen the appellant/accused and the deceased together on 01.05.2010 at 08:00 PM. To test the veracity of the evidence of PW.6, Test Identification Parade ought to have been conducted, which is not available on record. There is no corroboration in relation to proper identification of the appellant/accused by PW.6 in this case. Here, it is apt to state that undoubtedly, 'last seen theory' is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The 'last seen theory' holds the Courts to shift the onus of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well 20 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 settled law that it is not prudent to base the conviction solely on 'last seen theory'. 'Last seen theory' should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. In the instant case, except the doubtful testimony of PW.6 that the appellant/accused and deceased were last seen together, there is no corroborative evidence with regard to the same. Further, Exs.P10 and P11 are the Photostat copies of call details pertaining to the mobile phones said to have been belonging to the appellant/accused and the deceased and PW.15-Assistant Manager (Legal) and Alternate Nodal Officer, Idea Cellular Limited, was examined in this regard. Copies of the call data are placed before this Court to establish that there was communication in between the two disputed cell phones said to be belonging to the appellant/accused and the deceased. The call data was collected in relation to the two cell phones in question from the data base available with the office of PW.15. However, certificate under Section 65B(4) of Evidence Act is not obtained and filed before the Court, which is a condition precedent to the admissibility of electronic record in evidence. Therefore, no legal sanctity can be given to Exs.P10 and P11-call details. Further, as per the evidence of PW.7, the appellant/accused came to his Dhaba hotel and purchased two 21 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 beer bottles. However, when the deceased was subjected to Post- mortem Examination, no alcohol was found in her body. Further, blood sample was collected from the appellant/accused, vaginal swab and vaginal slide were collected from the deceased and three condoms were recovered from the scene of offence and were sent to Forensic Science Laboratory for examination and report. Ex.P22 is the FSL report, dated 23.09.2011 pertaining to the same, wherein, it is stated that "DNA is extracted from item no.1 (blood of the appellant/accused). There is no DNA yield from Item Nos.2, 3 and 4 (vaginal swab, vaginal slide and three condoms). The DNA profiles of Item Nos.2, 3 and 4 are necessary to compare with the DNA profile of Item No.1. Hence, no report can be given". This is another circumstance in favour of the appellant/accused. The circumstances narrated by the prosecution, at the most, leads to a suspicion that the appellant/accused might have caused the death of the deceased. In cases depending largely on circumstantial evidence, there is always a danger that the conjecture or suspicion may take place the legal proof and such suspicion, however strong it may be, cannot be allowed to take place of legal proof. The Court has to be watchful to ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the 22 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In the instant case, the prosecution was only able to establish that the subject death of the deceased was homicidal, but could not establish by leading cogent and convincing evidence that it is the appellant/accused, who caused the subject death of the deceased. Merely because the appellant/accused had not explained the circumstances appearing against him in his examination under Section 313 of Cr.P.C., the same would not make him guilty of the subject murder of the deceased.
24. I have gone through the decision relied by the learned Public Prosecutor in Gorusu Nagaraju's case (5) supra. In the said decision, the Hon'ble Apex Court, while dismissing the appeal preferred by the appellant therein who was convicted by the trial Court of the offences under Sections 302 and 201 of IPC and confirmed by the Hon'ble High Court, held that the chain of events which led to death of the deceased therein was established without any break implicating the appellant therein with the chain of events and that some minor contradictions or inconsistencies in the evidence cannot affect the material evidence and such contradiction or inconsistency cannot be made basis to discard the whole evidence as unreliable. There cannot be any dispute with regard to the said legal preposition. However, it is also equally true that an appeal under 23 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 Section 374(2) of Cr.P.C. is a substantive appeal and the High Court, in exercise of its appellate jurisdiction, is duty bound to consider the entirety of the evidence and is required to evaluate the evidence on record independently and arrive at its own findings as regards the culpability or otherwise of the accused on the basis of evidentiary material. In the instant case, the circumstances sought to be pointed out by the prosecution against the appellant/accused are not conclusive in nature and are inconsistent with the hypothesis of the guilt of the appellant/accused. The chain of evidence against the appellant/accused is not complete to arrive at a conclusion that in all human probability, it is the appellant/accused, who had caused the subject death of the deceased. The Court below had not analyzed the evidence on record in correct perspective. The conclusions reached by the Court below in finding the appellant/accused guilty of the offences punishable under Section 302, 201 and 404 of IPC are not in tune with the evidence on record. The submissions advanced on behalf of the appellant/accused merit consideration and the appeal deserves to be allowed.
25. In the result, the conviction and sentence recorded against the appellant/accused of the offences under Sections 302, 201 and 404 of IPC vide judgment, dated 13.09.2012, passed in S.C.No.136 of 2011 by the learned II Additional Sessions Judge (FTC), Khammam, 24 Dr.SA,J & NTR,J Crl.A.No.429 of 2013 is set aside. Consequently, the appellant/accused is acquitted of the charges/offences under Sections 302, 201 and 404 of IPC. The fine amount, if any, paid by the appellant/accused shall be refunded to him. The appellant/accused shall be released forthwith, if he is not required in any other case.
26. The appeal is allowed, accordingly.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
______________________ Dr. SHAMEEM AKTHER, J _______________ N. TUKARAMJI, J 14th July, 2022 Bvv