IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE 16th DAY OF AUGUST, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.455 of 2007 Between: Oleti Venkata Naga Satya Surya Gurunatha Guptha … Appellant/accused And The State of Andhra Pradesh … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.455 of 2007 ORDER: - (Per Hon’ble Sri Justice A.GOPAL REDDY) The appellant/sole accused, who faced the trial for the offences punishable under Sections 302, 380 ad 411 IPC was found guilty and was sentenced to suffer rigorous imprisonment for three years each respectively, by judgment, dated 26.03.2007, in Sessions Case No.14-A of 2007 on the file of VIII Additional Sessions Judge, (Fast Track Court), Vijayawada, filed this criminal appeal challenging the conviction and sentence recorded against him. 2. The substance of the charge against the accused is that on 27.07.2006 between 12.30 and 18.00 hours in Tammina Krishna Rao Street, Rajiv Nagar, Vijayawada, he caused the death of one Akula Parvathi Devi and committed theft of gold ornaments; thus dishonestly retained stolen property; pledged the same and obtained cash of Rs.45,220/-. 3. The case of the prosecution in nutshell is that P.W.1 is the grand daughter, P.Ws.2 and 4 are the sons, P.W.3 is the daughter-in- law, P.W.5 is the husband and accused is the nephew of the deceased. P.Ws.1, 3, 4, 5 and the deceased were all living together and P.W.4 is working with P.W.2 in his paint shop. On 27.07.2006, at 06.00 A.M. P.W.1 left to the college, P.Ws.4 and 5 left to their work place by 08.30 A.M. and P.W.3 also went to the temple at 10.30 A.M. and the deceased was alone at home. At about 11.00 A.M., P.W.4 returned back home as he has to go to Khammam and at that time he saw the deceased and the accused talking and thereafter he left the house informing the deceased that he was going to Khammam. Subsequently at about 06.00 P.M. P.W.1 returned from the college and found the house locked. On that she waited for half an hour and later went to backyard of house and peeped into the house through the window and noticed that the deceased was found lying on the bed and her mouth was covered with plaster. Then she called her and tried to open the rear door and it was not opened. Out of fear she immediately went to P.W.2 and informed him the same, then they both tried to break open the lock but could not succeed. Thereafter, they went back side and pushed the door forcibly and opened the door and found the deceased lying dead with bleeding injuries on the neck left side and on the hands and further noticed her jewellery on the person were missing. Thereafter P.Ws.1 and 2 went to the police station and lodged a report under Ex.P.1. On 27.07.2006 at 22:00 hours basing on Ex.P1 report. P.W.15 the Sub-Inspector of police registered the same as case in crime No.50 of 2006 and issued F.I.R. under Ex.P17. P.W.16 the Inspector of police took up further investigation, rushed to the scene of offence, prepared observation report and rough sketch of the scene under Exs.P7 and P8 respectively. He further held inquest over the dead body in the presence of P.W.9, which is marked as Ex.P6. Thereafter he forwarded the dead body for postmortem examination. On requisition P.W.12 the Assistant Professor in Department of forensic medicine held autopsy over the dead body of the deceased and opined that the cause of death was due to cut injury on throat and issued Ex.P14 postmortem report. On 29.07.2006 P.W.16 examined and recorded the statement of P.W.4. P.W.4 expressed his suspicion on accused. Then P.W.16 sent a special party to trace out the accused. Then on information he immediately rushed to the room of the accused, there he was informed by P.W.6, owner of the room, that the accused was ready to go. He then entered the room of the accused, searched his bag and found M.O.6 blood stained pant and shirt of accused, a sum of Rs.45,220/- in the bag. He further seized Exs.P2, P9, P10 and P19 from the bag. In pursuance of the statement made by the accused, at his instance M.Os.1 to 3 were recovered from P.W.8, which were sold to him by the accused in the presence of P.W.10 under Ex.P12 panchanama. He then led them to the shop of P.W.7, where he pledged a gold bangle. The said bangle is seized under Ex.P4 and P5 panchanama. Thereafter P.W.16 summoned P.W.1 to identify the jewels. Accordingly P.W.1 identified her jewels in the presence of P.Ws.9 and 11 under Ex.P8 panchanama. Thereafter the accused was sent to remand. All the material objects were forwarded to Regional Forensic Science Laboratory. After receiving relevant documents and on completion of investigation, charge sheet was filed. 4. On committal, the learned Sessions Judge, framed charge under Section 302 IPC and when the same was read over to the accused in telugu, he denied the same and claimed to be tried. 5. In order to substantiate its case, the prosecution examined P.Ws.1 to 16 and marked Exs.P1 to P25, besides the case properties M.Os.1 to 12. 6. After the prosecution evidence is closed, the accused was examined under Section 313 Cr.P.C., for which he denied the incriminating evidence put to him. 7. The learned Sessions Judge found that P.W.3, being the sister of the accused will not foist a false case against the accused; that the evidence of P.Ws.7 and 8, who received the gold bangles from the accused, clearly proves that the accused pledged some articles and sold some gold bangles to them; that the evidence of P.W.14-Scientific Officer, A.P.F.S.L., Hyerabad shows that the piece of hand glove examined by him, part of MO.4, which was recovered from the accused was used in the crime; and that P.W.11 investigating officer’s evidence shows that he obtained the signatures of the accused as N.Ramesh on three papers to which steps were taken as to whether the accused pledged the bangle stating his name as N.Ramesh and found that the prosecution bring home the guilt of the accused beyond reasonable doubt and accordingly convicted and sentenced him to conviction as aforementioned. 8. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant contended that P.W.4 evidence only shows that he has last seen the deceased talking with the accused at 11.00 A.M. The police failed to establish the seizure of the gold bangles from P.W.7. The evidence of P.W.7 is contrary to the evidence of investigating officer and P.W.10 the Mandal Revenue Officer. According to P.W.10 the arrest of the accused and his confession is at 4.15 P.M., whereas as per the evidence of P.W.7, the gold bangle said to have been seized under Ex.P3 is at 10.00 A.M. in the morning. Similarly, M.Os.2 and 3, which were sold to P.W.3 is in the afternoon. Therefore, once the prosecution failed to establish the connecting link of the stolen property with the accused and his pledging and selling the same, the accused cannot be convicted on the basis of piece of hand glove, which is said to be part of M.O.4 and which is not a crime weapon. Further, there is no evidence to show that M.O.10-Pant and M.O.11-shirt, which were recovered belongs to the accused to connect him with the commission of the offence. Therefore, the accused is entitled for acquittal. 9. Per contra, the learned Additional Public Prosecutor, contends that as per the scene of observation report under Ex.P7 by the side of the dead body on the cot the hand glove of a finger was recovered, which contains blood stains and Ex.P16 F.S.L.Report issued by P.W.14, who is a scientific officer of A.P.F.S.L., shows that the texture of the little finger portion of item No.16-M.O.4 tallies with item No.15- M.O.6 in the same texture and thickness which contains the stains of human blood. The accused has not explained as to how he got Rs.45,220/- in his possession, which clearly establishes that he pledged the golden bangles and also sold the golden articles after commission of the theft from the deceased. P.W.4, son of the deceased, saw the accused discussing with the deceased at 11.00 A.M. at the house and by 06.00 P.M. P.W.1 saw the deceased lying on the bed, which clearly establishes that it is only the accused and none else committed the offence. No suggestion was made to P.W.11 about his obtaining the signatures of the accused and the signature on Ex.P3 is not that of the accused. It is the accused and none else committed the offence. The conviction and sentence recorded by the trial court do not call for any interference. 10. Now, the point for determination is:- “Whether the prosecution proved its case for the offences punishable under Sections 302, 380 and 411 IPC against the appellant/accused, beyond all reasonable doubt?” P O I N T :- 11. The entire case rests upon the circumstantial evidence. It is now fairly well settled that when a case rests upon the circumstantial evidence, the prosecution must establish all the links in the chain of circumstances, so that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. On this aspect, it is pertinent to refer to a decision reported in Padala Veera Reddy v. State of A.P.[1], wherein at para 10 it was held as follows:- “(1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 11. P.W.1, who is not an eye witness to the incident, set the criminal law into motion by presenting Ex.P1 report deposed that on 27.07.2006 she went to the college as usual and returned at 06.00 P.M. and by that time she found the house was under lock and her mother informed him in the morning itself that she wants to go to temple. She waited for half an hour and later went to the backyard of their house and found the window of the bedroom kept opened. She peeped into the house and found her paternal grand mother lying on the bed and her mouth was covered with plaster. Then she called his grand mother, but she did not reply. She tried to open the rear door and it wasn’t opened. Out of fear she went to the shop of P.W.2, her senior paternal uncle and explained him the situation and they both came back to the house and tried to break open the lock, but in vain. By using force, they pushed the door and opened the door and saw the deceased died with bleeding injuries and lying in the pool of blood and she found missing of nanuthradu in her neck and four gold bangles and also the chain of black beads from her grand mother. Then herself and P.W.2 went to II Town police station and she presented a report under Ex.P1. On 29.07.2006 at about 08.00 P.M. police summoned her to the police station and asked to identify the ornaments-M.Os.1 to 4, which they recovered and which belonged to her grandmother and she identified the same belongs to her grandmother. In the cross-examination she stated that P.W.4 is her father and karta of the family. At about 09.30 P.M., P.W.2 break open the lock of front door and she has shown the police the back door through which they entered into the house as well as the lock which was broken by P.W.2. The accused is son of the elder sister of her mother. The dog squad also visited the scene of offence on the same night. The accused used to visit their house frequently being his relative. Out of four similar items of each ornaments, she identified M.Os.1 to 3. 12. P.W.2 also corroborated the evidence of P.W.1 stating that P.W.1 came to his shop and informed that her house was kept under lock and key and she found through the window that her mother was lying on the bed and mouth was covered with plaster and did not reply. Then himself and P.W.1 went to their house and they tried to break open the lock, but in vain. Then they went to back side and pushed the door forcibly and opened the door and found the deceased with bleeding injuries on the neck left side and on the hands. The deceased was wearing four gold bangles, one gold nanutadu and one black beads chain. Himself and P.W.1 went to police station and presented Ex.P1 report. In the cross-examination he stated that he does not know who break opened the lock of the front door. P.W.3-mother of P.W.1, stated that at about 10.30 A.M. she went to temple and returned to the house at 08.00 P.M. and stayed in the temple up to evening as the temple was closed at 12.00 noon. The deceased alone was present in the house. By the time she returned the house, her two daughters and his father-in- law and P.W.2 were present and she found her mother-in-law on the bed with injuries on her neck and also on her hands. In the cross- examination she stated that P.W.2 break opened the lock. P.W.4, the younger son of the deceased, stated that himself, P.Ws.1, 3, the deceased and his father-P.W.5 are residing in the same house. On 27.07.2006 at about 11.00 A.M. he came back to his house as there was a programme to go to Khammam. He received a phone call from P.W.2 about the death of his mother and asked him to come urgently. At about 10.00 P.M. he reached the house and found gathering at his house and saw his mother with injuries. He also found the gold bangles, gold nanutadu and black beads chain of his mother were missing. He admitted in the cross-examination that the ornaments of the mother of the accused worth about 1 lakh were given to his wife and as the same were lost, he paid the amount. But again he added that he made new ornaments in view of loss of the ornaments and handed over to the mother. Police came to the scene of offence half an hour after he reached the house. He denied the suggestion that the police interrogated him and he colluded with Vali and might have killed his mother for gold ornaments. P.W.5, the husband of the deceased stated that as usual he went to the shop at 08.30 A.M. and returned back at about 08.00 P.M. He found gathering at the house and the deceased was lying on the bed and the gold ornaments were missing on her and after two days from the incident, police examined him. In the cross- examination he admitted that the police have not seized any articles from his house. The deceased is having ear studs and nose studs. P.W.4 is not indebted to anyone. P.W.4 settled the matter with the mother of the accused for losing the gold ornaments by the wife of P.W.4. 13. P.W.6 to whom the accused was a tenant deposed that the accused used to leave the room at 08.00 A.M. and return back at 10.00 P.M. and that the accused used to inform him that he is in financial crisis. On the date of the incident at about 08.00 A.M. the accused left the room and returned to the room at 03.00 or 03.30 P.M. and went away after one hour. P.W.7 is a pan broker with whom one gold bangle is said to have been pledged by the accused deposed that on 27.07.2006 at about 07.30 P.M. one N.Ramesh Kumar came to him and pledged one gold bangle and borrowed Rs.4,200/-. He know the accused as he was working as an employee in courier service and used to deliver the letters. Ex.P2 is the original receipt on which the accused pledged the bangle and bears the signature of the accused as N.Ramesh. On 29.07.2006 in the morning police came to his shop at about 10.00 A.M. and shown Ex.P3 to him and enquired. He has given the gold bangle to the police which were pledged under Ex.P3. Police seized the ledger and gold bangles and original receipt Ex.P2. Ex.P4 is the ledger of the year 2006. In the cross-examination he stated that the police have not given any receipt after seizing Ex.P5 and P6 and the gold bangles. About 2 or 3 times the accused brought courier to his shop but he cannot give details of delivery of letters. P.W.8 is a bullion merchant deposed that on 29.07.2006 in between 11 and 12 noon one Janardhan who is his customer came along with the accused and the accused sold one Mangalasuthram chain in two pieces i.e., M.O.1, three pieces of black beads along with locket i.e., M.O.2 and three gold bangles and demanded Rs.50,000/-. But he purchased for Rs.45,220/- as per their value. After one hour accused and police came to his shop and enquired him about the selling of articles by accused. P.W.9, who conducted the identification of the property of the deceased, deposed that at 09.30 P.M. on 27.07.2006 he came to know about the death of the deceased. After 15 minutes he reached the house of the deceased, police came there and dog squad also came there. Police have taken photos at the scene of offence and conducted inquest. He drafted Ex.P6. Police seized one bottle with the name of cloroform and glove piece of one figure under Ex.P7 observation report-cum-seizure report. On 29.07.2006 the Inspector of Police called him to II Town police station and he conducted identification of property along with P.W.11 in the Mandapam of Anjaneya Swamy temple. P.W.1 identified the property. In the cross-examination he stated that as per the dictation of the Inspector of Police he drafted all the mediators reports. M.O.1 is the single item. The black beads chain does not bear the beads at the time of identification. 14. P.W.10, the Mandal Revenue Officer stated that on 29.07.2006 at about 4.15 P.M. when he was in his office P.W.16, the Inspector of Police and the Sub-Inspector of police along with some constables came to their office and C.I. requested him to act as a mediator and to spare services of one R.I. He gave his consent. Himself, the police and the R.I. went to the residential house of Bilisetty Subbarao P.W.6 and they found one person and on seeing them, he tried to escape from that place. P.W.16 caught hold of him and interrogated. Accused confessed before him that he committed the offence and the accused shown pair of gloves and the left hand little finger of glove is cut off. Police also seized one adhesive type of tape, his pant (Zeens black colour) which is stained with blood, cement colour shirt with full hands and the accused also produced Rs.45,200/- and he has shown broker receipts for pledging articles under Exs.P9 and P10. The seizure report is drafted in between 7.00 and 7.30 P.M. In the cross-examination he admitted that the accused is residing in the third floor in one room. M.O.1 is in one place at the time of seizure, but M.O.2 is in four pieces and black beads were removed from the chain. P.W.11, who is a mediator for seizure of one piece of finger of the glove from the scene of offence on 27.07.2006 stated that on 29.07.2006 police called him and he went to the police station and conducted property identification through P.W.1 and drafted the property identification parade under Ex.P8 and in his presence, police obtained the signature of accused. 15. P.W.12, the Doctor who conducted the post mortem examination on the deceased found the following external injuries 1. One cut injury 3 X 0.5 cm X tender deep on right fore arm 4 cm above wrist. 2. Cut injury 3 cm X 2 cm tendon deep on left forearm 5 cm above wrist. 3. Cut throat injury 13 cm x 4 cm x trachea deep present on the upper part of front of neck. The cause of death was due to cut throat injury and issued Ex.P14 postmortem report. 16. P.W.15, the Sub Inspector of police deposed that on 27.07.2006 at 22.00 hours P.W.1 came to the police station and presented Ex.P1 report and on which basis he registered a case and issued Ex.P17 F.I.R. P.W.16, the Inspector of police, who investigated into the crime deposed that he reached the scene of offence and by the time he reached there P.W.15 also present. He prepared the observation report and also rough sketch in the presence of mediators. He examined P.W.4, but has not recorded his statement, as it was late. He seized M.Os.6 to 9 from the scene of offence. He examined P.W.4 on 29.07.2006, who expressed suspicion about the accused in commission of crime and at 4.30 P.M. he received information from the special party that the accused went to his room with one packet. He went to the room of the accused, secured the presence of P.W.10 and L.W.13 to act as mediators and enquired with P.W.6 about the accused and he entered into the room of the accused, searched his pocket and found M.O.6 and also blood stained pant-M.O.10 and shirt-M.O.11 of the accused and found Rs.45,220/- in the bag. M.O.12 is the amount seized under Ex.P19 from the bag of the accused. He seized M.Os.1 to 8 from P.W.8 and went to the shop of P.W.7 and he summoned P.W.1 and asked her to identify the property in the presence of P.Ws.9 and 11 under Ex.P8 proceedings. 17. From the above evidence, it is clear that except P.W.4 no one stated that the accused was seen talking with the deceased at 11.00 A.M. Whereas P.W.3 stated that at 10.30 A.M. she went to the temple and returned at 08.00 P.M. and according to her, P.W.2 break opened the lock. But P.W.2 admitted in the cross-examination that he do not know who broke opened the lock of the front door. P.W.2, who is no other than the elder son of the deceased, went along with P.W.1 to the police station. P.W.5, who is the husband of the deceased, was examined only two days after the incident. P.W.7, with whom one gold bangle said to have been pledged by the accused, deposed that at 10.00 A.M. police visited his shop and he gave the gold bangle to the police, which was pledged by the accused under Exs.P2 and P3. P.W.8, who is the bullion merchant, also deposed that at 11.00 A.M. and 12.00 noon, one Janardhan, who is a customer, came along with the accused and sold M.O.1 in two pieces; three pieces of black beads along with the locket and three gold bangles. Whereas as per the evidence of P.W.9 and P.W.16, M.O.1 was only one piece. 18. P.W.4, who was cited as witness at the time of inquest, stated that when he came back to the house at 11.00 A.M., he saw the accused was discussing with his mother. But, in the inquest report he stated that some unknown thieves entered into the house portion of the