Bail Slip: The Petitioner/Accused was directed to be released on bail by the Order of the High Court dated 29-04-2009 in Crl.tttl.P No. 1027 0l 2009 in Crl.A.No. 444 of 2009 IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THURSDAY,THE TWENTY EIGHTH DAY OF JULY TWO THOUSAND AND TWENTY TWO PRESENT THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL NO: 444 OF 2009 Appeal under Section 374 dated.17.03.2009 passed in S.C.No Sessions J udge at Karimnagar. (2) Cr.P.C aggrieved by the Judgment 591 of 2008 on the file of the I Additional ...APELLANT/ACCUSED ...RESPODENT Between: Counsel for the Appellant :SRl. C MOHAN PRAKASH Counsel forthe Respondent: PUBLIC PROSECUTOR (TG) The Court made the following: ORDER Kotte Raghu, S/o. Rajesghwar Rao, aged 26 years, R/o. Manakondur Karimnagar District. AND The State Of A.P., Rep. by Public Prosecutor (TG) . High Court of A.P. Hyderabad. HO'$'BLE SRI JUSTICE K.SUREND'}R Ct IMINAL APPEAL No.444 OF 2Cr(19 JUDGMENT: 1. The appe lalt is convicted for the offen<:t' '-rnd,:r Section 304 Part-ll c. IPC and sentenced to uno,:rgo rigorous imprisonment lor a period of four years vick: juctgment in S.C.No.59 1 ol 2008 dated 17.03.2008 pilr;ried by the I Additional Ses sions Judge, Karimnagar. h5glrieved by the sarne, present rppeal is filed. 2. The case of the prosecution is that the d,:r:eased is the son of P.W. 1. ''lee deceased and the appellant ,r,ent to Punjab for doing lab, ur work and they came ba,:l< There were disputes betw:en the appellant and the der:e r,sed at Punjab regarding liftir g of cotton bags. The son of I,.Vis.l and 2 was found dead or 15.02.2008 at a club and rlLr: Manakundur, Karimnagar D strict registereci a. case under Se c.,ion 302 of IpC suspecting th rt it was the appellant who :rad killed the deceased by reating him on his head wi1_t stone keeping previous enn ity in mind. The police having concluded I 2 investigation f,rled charge sheet for the offence under Section 3O2 of IPC against the appellant. 3. The learned Sessions Judge examined P.Ws.l to 17 on behalf of the prosecution and marked trxs.P1 to P14 and a-lso M.Os.1 to 9 during the course of trial. 4. The learned Sessions Judge found that the appellant is liable to be convicted under Section 304-ll IPC on the basis of the circumstantial evidence. 5. The learned counsel for the appellant submits that this is a case of circumstantial evidence and the prosecution failed to prove that any kind of disputes that were in between the appellant and the deceased. He submits that the prosecution witnesses never saw the deceased and the appellant together prior to his death. There are no eye witnesses to the incident and only on the basis of the alleged recovery of stone and clothing, the learned Sessions Judge came to a conclusion that the appellant was guilty for the offenc-e under Section 304 Part-II IPC. 3 6. Learned ;ounsel for the appeliant re-i: d rrpon the judgment of tt e Division Bench of this Cout't irL tt.e case of State v. Junug, .ri Devenderl, wherein it is helct al; follows: "51 . on th resting solei, The prosecr events unerl any scope fo investigatior-' from the st, the FIR an apprehender aforestated facts, the case of the r:csec'rtion, on circumstantial evidence, cannol. r: ;rccr:pted. -ion failed to establish an unbrok,x) chz-in of ngly pointing to the guilt of A1 anc \. cbviating inferring their innocence On the othe: hanl, the seems to have been engineered anci 'rL rnipulated :t as is evident from the delay in :tgistration of - the ambiguity as to when A I a r: A2 were 52. Further. this is not a case attracting the 'las;t ri:<:n' ,heory as the evid( rce of PW2, which purports to brirl{i jn th: said theory, canl ot be treated as cre ditworthy. As p< i - l,:d ,>ut by the Suprem : Court in Nizam u. State of Ra.iastl c t, 2()15 (2) ALD (Crl.) 8 )8 (SC/= (2016 ) 1 SCC 55O, the 'lar;t ri:r:n'theory shouid be r pplied taking into consideration the r ase of the prosecution in its entirety and keeping ir rnin I the circumstanr ss that precede and follow the poir t (,.' being last seen. [n th, present case, the evidence of PW.2 frLjls to 'nspire confidence nd the circumstances in which he cla inrs t r have been at th: scene of the offence are not t,eti:r,ab1,:. The question of lpplying the'last seen'theory to the l)rcsent case therefore dt :s not arise." 7. The pres 3nt case is of one of circumstant,a.l evidence. In the case of cir cumstantial evicjence, the circurr ll,ances have to be proved b :yond reasonable doubt to inf:r the guilt of ' zor.s (r) aro (ca.)zq 4 accused. The Hon'ble Supreme Court in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra2 held as follows: "The following conditions must be fulfilled before a case against an accused can bc said to be ful1y cstablished bv 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 hJpothesis of the guilt of the accused, that is to say. they should not be explainable on any other hj@othesis 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. Thesc flve golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.' 8. In the instant case, P.Ws.1 and 2 who are parents state that they suspect the appellant for committing murder of their son, there is no evidence to show that the appellant and the deceased being seen together prior to the death of the deceased. The only evidence is that of hostile witness P.W.3, who stated that around 4.OO p.m, the accused purchased toddy and went away and deciined even to acknowledge that he knew lhe deceased. ' r98+ ArR 1622, tgas scR (1) 88 { 5 9. The only evidence on the basis ol rv-rich ,he court convicted the appellant regarding the conrrrlcity of the appellant on t Le basis of the evidence of P.',.\,. i .. v'ho is the panch r.l,itness to the seizure of material objerl s. i.e., M.O. 1 is the blood staj red shirt, M.O.2 is the pant lrlood stained), M.O.3 is the c rt drawer, M.O.4 is the round lrlone and blood stained earth r nd controiled earth, M.O.5 i:s th: :.ilte;', M.0.6 is the blood sta eed earth, M.O.7 is the cont.rcll(:r earth and seized them. F W. 12 is the panch for seizure of oan'. and shirt of the accusec allegedly worn at the time c,f ia:i,lenr.. Both the clothes of the deceased and the appellant vrr'rr: sent for FSL examination v de Ex.P14. In the FSL report, it t'as mentioned that both th clothes of th(t appeilant anl the deceased contained blor d stains of blood group 'O'. 10. The dea i body was already found and tlLe wearing apparel of thr dead body was seized. It is nor rhe :ase of the prosecution t rat the appellant had pointed ort ttLe scene of offence pursu mt to confession. The only cir.cu.rrrstirnce which the prosecuti n is relying upon the bloocl ttert was found on I 6 the wearing apparel of the deceased and the accused and the blood being group 'O'. Apart from the said circumstances, there are no other incriminating circumstances to say that the appellant had committed murder of the deceased. Since there a-re no witnesses who have seen the deceased and appellant prior together prior to his death, it cannot be infemed that the appellant in any manner is responsible for the death of the deceased only on the basis of blood stains being found on the wearing apparel of accused. The police has not sent the sample blood of accused for any blood test nor any DNA testing was done to prove that the blood found on the ciothes of accused was that of accused. circumstantial evidence, 1S not proved by the prosecution. Except P.Ws.l and 2 saying that the deceased informed that there were differences while the deceased and the appellant worked at Punjab, there is no other evidence or incident which had taken place after the appellant and the deceased returned from Punjab. It is not clear from the case of the prosecution as 1 1. The motive which gives prominence in the case of 1 to the exact t me and details of the accust:<l and deceased working in Pur jab together. Further, there is iL so nl evidence as to how ma: y days prior to the said incidi'r,l . the appellant and the decea ,ed worked together. According rr I).S'.1, during chief examina ion, he stated that ten years ba: r his son along with the accu;ed and three others went to l\L.rjab lo eke out their livelihoor and they stayed for three morrlL.rs and returned and on retur r, it was informed that a qu,r:r,:l took place betu,een him and the accused in Puniab. llhe motive as suggested is 1 ro far fetched, as the aileged cL €Lrrel in between the appellant and the deceased was approxirrLtciy eight years prior to his c:ath. As stated Lry P.W.1, the ap1t,:llent and the deceased sta /ed in Punjab ten years prt:r i:,r,tsi' for three months and ame back and the death was 1 :! years prior to his statemen. in the Court. 12. in the s rid circumstances, the prosecuc:on has faiied to prove beyon i reasonable doubt that th.i; apl)ellant was responsible f ,r causing death of the deceased. 8 13. In the resuit, the conviction imposed by impugned judgment in S.C.No.591 of 2008, dated I7.O3.2OO} is set aside. Since the accused is on bail, his bail bonds stand cancelled. 14. Accordingly, the Criminal Appeal is ailowed. SD/-K.SRINIVASA RAO //TRUE COPY// JOINT REGISTRAR SECTION OFFICER One Fair Copy to the Hon,ble Sri Justice K.Surender (For His Lordships Kind perusal) To, 1. The lAdditional Sessions Judge at Karimnagar. 2. Two CCs to Public Prosecutor, High Court for the State of Telangana, at Hyderabad. 3. One CC to SRl. C MOHAN PRAKASH Advocate [OPUC] 4. '1 1 LR Copies 5. The Under Secretary, Union of India Ministry of Law, Justice and Company Affairs, New Delhi. 6. The Secratey, Telangana Advocate Association, Library, High Court Buildings, HYderabad. 7. Two CD CoPies 8. One SPare CoPY CDL /l ,Al-- x HIGH COURT DATED:28107li 022 ORDER CRLA.No.444 of 2009 ALLOWING 'I HE CRIMINAL APPEAL. I /,' i,':. .., , ..: (.r 'l !' ?in 4a 3t