IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE 2nd DAY OF JULY, TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.281 of 2007 Between: Mohammed Shakeer (A2) … Appellant/accused No.2 And State of A.P., Represented by Public Prosecutor. … Respondent This Court made the following: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.281 of 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973, (for short, "Cr.P.C.") is filed by appellant/accused No.2 against the Judgment, dated 01.03.2007, in Sessions Case No.95 of 2004 on the file of I Additional Sessions Judge, Mahabubnagar, whereunder and whereby, the appellant/accused No.2 was convicted and sentenced to undergo imprisonment for life and also to pay fine of Rs.10,000/-, in default, to undergo Rigorous Imprisonment for a period of three years for the offence punishable under Section 302 r/w 34 of the Indian Penal Code, 1860 (for short, "IPC"); to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for one year for the offence punishable under Section 363 IPC. 2. The brief facts that are necessary for disposal of the prosecution case may be stated as follows: P.W.1 is the mother, P.W.2 is the maternal grand mother, P.W.3 is the friend and P.W.5 is the classmate, of one Imran Ali {hereinafter referred to as “deceased”}. Father of the deceased was working as sales man in Soudi Arabia. The deceased was staying with his mother at Mahabubnagar and was studying IX Class in Bodini School. On 11.07.2003 at about 12 noon A1 met P.W.10, who is the friend of A1 and requested him to give his motor cycle bearing No.AP 22/E 7879 saying that he had to go to a nearby place for getting money, and on that P.W.10 gave the motor bike to A1. On the date of incident i.e., on 11.07.2003 at about 1 p.m., the deceased with his friend P.W.3 went to the mosque for prayer. After prayer both of them left the mosque by 2 p.m. P.Ws.7 and 15 are the students staying in a rented room leased out by P.W.14 at Dilsukhnagar, Hyderabad. On 11.07.2003 at 7 p.m., A1, A2 along with a boy of 12 years old went to the room of P.W.7 and informed him that they were coming from a function and have a sleep in his room, as there was no sufficient accommodation at the function hall to sleep. They further informed that the boy was the son of A2’s uncle. At about 7.30 p.m., P.W.15 also reached the room and he was introduced to the accused. Then at the request of A1 to hand over the motor bike to P.W.10 at Mahabubnagar, P.W.7 agreed to the same, and at about 8 p.m., he left the room. P.W.15 and the accused stayed back in the room. Then P.W.7 accompanied by P.W.16 went to Mahabubnagar and handed over the bike to P.W.10 by 11 p.m. Then, on the next day, P.Ws.11, 15 and 16 all went to the room of P.W.7 and they together chatted with the accused and the boy for sometime. At about 4 p.m., P.Ws.11, 15 and 16 left the room for the purpose of purchasing books. At about 6.30 p.m., A1 and A2 went to the room of P.W.16 and asked him whether he had a cycle. As he did not have it, they left the place. Then at about 7.30 p.m., P.W.15 returned back to the room and found his room locked. On the way, he saw the accused on the road and on his enquiry he was informed that they went upto the main road. On enquiry made by P.Ws.15 and 16 they were informed by the accused that the boy was dropped at the house of their relatives. In the meanwhile, as the deceased did not return home, P.W.1 made searches. At about 9 p.m., she received a phone call (4055126153) from an unknown person informing that the deceased was in his custody and demanded to pay Rs.2.00 lakhs for his release initially he asked her to come to Enugonda for payment and informed her to come to the Bakery situated near S.V.S.Hospital. He threatened her to kill the boy if she informed to police. Then in order to put the caller in fear P.W.1 told him that she identified who it was and asked him to reveal his name. On that the caller put off the phone stating that he would call again. Thereafter on 12.07.2003 at about 10.45 a.m., P.W.1 lodged a report under Ex.P1. On 12.07.2003 at about 10.45 a.m., on receiving Ex.P1 report from P.W.1, P.W.17 the ASI of Police, I Town Police Station, registered the same as a case in crime No.55 of 2003 for the offence under Section 363 IPC and issued FIR under Ex.P16. He then conducted enquiry in the locality and then recorded the statements of P.Ws.2 and 3. He further gave instructions to crime party to collect necessary proof and to verify the source of the telephone call made to P.W.1. Further investigation was taken over by P.W.13 the Sub-Inspector of Police. He issued look out notices to all the bordering police stations of Mahabubnagar District. He then visited the house of P.W.1 and examined P.Ws.4 to 6. On 22.07.2003 at about 5 P.M. at Global Hospital, P.W.7 saw A1 and his sister discussing and from that he understood that it was with regard to kidnap of a boy. On 22.08.2003 on receiving credible information about the culprits, P.W.13 along with his team proceeded to T.D.gutta railway station and apprehended A1 and A2. During the course of their interrogation in the presence of P.W.8, they led the police to the room of P.W.7 at Dilsukhnagar and from there an iron box with electric wire (M.O.2) was seized under Ex.P9 Panchanama. From there he led them all to nala (drainage canal) in Hanumanagar of Dilsukhnagar area, where the dead body was thrown. Then police searched for the dead body in the flowing nala in humayun nagar of Dilsukhnagar, but could not trace it. From the side of said nala (drainage canal) a black chappal (M.O.1) belonging to the deceased was seized under Ex.P10 panchanama. During the course of investigation, P.W.13 examined and recorded the statements of P.Ws.7, 15, 16 and L.W.12-P.Raju, who gave the cycle for transporting the dead body. After completion of investigation at Hyderabad, P.W.13 returned to Mahabubnagar and on the basis of investigation he added other sections of law viz., Sections 302, 201 r/w 109, 34 and 120-B IPC under Ex.P14 alteration memo and issued altered F.I.R. Further investigation was taken over by P.W.18 the then Circle Inspector of Police, Mahabubnagar. During the course of investigation, on 24.08.2003 he recorded the statements of P.Ws.9 to 11 and 14; got the statements of P.Ws.6,9,10,11, 15, 16 recorded under Section 164 Cr.P.C; seized the Hero Honda Motor cycle from P.W.10 on 25.08.2003; and arrested A3 on 22.10.2003. After receiving the relevant documents and on completion of investigation, P.W.18 filed the charge sheet. 3. The charges levelled against the accused are as under: Firstly: - That on or about 11.07.2003, A1 to A3 of you have conspired to kidnap Imran Ali S/o.Anwar Ali 14 years, to extract money for his parents and as such, you have committed the offence under Section 120-B of Indian Penal Code and within my cognizance. Secondly: - That in the same course of transaction on 11.07.2003, A1 and A2 of you, according to your plan, kidnapped the boy Imran Ali from Madina Masjid, Mahabubnagar on a Hero Honda Motor cycle No.AP 22-E/7879 and took him to Hyderabad for the purpose of illegal gain and that you thereby committed offence punishable under Section 363 of Indian Penal Code and within my cognizance. Thirdly: - That in the same course of transaction 12.07.2003 at Vikasnagar, Dilsukhnagar, Hyderabad, A1 and A2 of you did commit murder of the deceased boy Imran Ali with an iron box wire by putting around his neck and that you thereby committed the offence punishable under Section 302 r/w 34 IPC and within my cognizance. Fourthly: - That in the same course of transaction, on or about 12.07.2003 you abetted A1 and A2 in the commission of offence of murder of the deceased and in consequences of your (A3) abetment, A1 and A2 killed the deceased and that you thereby committed the offence punishable under Section 302 r/w 109 IPC and within my cognizance. 4. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. Case against A1 was split up as he was absconding, and the present case was proceeded against A2 and A3. 6. To substantiate the charges against A2 & A3, the prosecution examined P.Ws.1 to 18 and got marked Exs.P1 to P16, besides marking the case properties M.Os.1 and 2. 7. After the prosecution evidence is closed, A2 & A3 were examined under Section 313 Cr.P.C., with reference to the incriminating evidence appearing again them in the evidence of prosecution witnesses. They denied the same. No evidence, either oral or documentary, was adduced on behalf of A2 & A3. 8. The trial court accepting the evidence of P.Ws.7, 11, 15 and 16 and also recovery of M.Os.1 and 2, found A2 guilty and accordingly convicted and sentenced him as stated above, while acquitting A3 of the charges levelled against him. Challenging the same, the present appeal is filed by A2. 10. Now the point for determination is: - Whether the prosecution proved its case beyond all reasonable doubt for the offence under Section 302 r/w 34 and Section 363 IPC against A2? P O I N T : - 11. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellant/accused No.2 contended that there is absolutely no evidence to show that the deceased was done to death by the accused; that the prosecution is relying upon the evidence of P.Ws.7, 11, 15 and 16 who stated only about the presence of a boy with A2 and Haneef on the date of the incident and immediately after the incident and that they did not state that deceased boy in the company of A2 and Haneef; that there is absolutely no evidence to show that the boy, who was in the company of these witnesses, is no other than the son of P.W.1, who was found missing; that there is no evidence to show that the boy was taken on a motor cycle from Mahabubnagar to Hyderabad to the room of P.W.7; that except the recovery of M.Os.1 and 2 at the instance of the accused, there is absolutely no other evidence to show that the appellant along with some others, is the assailant of the deceased; that the witnesses P.Ws.7, 11, 15 and 16 stated that on seeing the photograph shown by the police officer, they identified the boy, who was in the company of A2 and Haneef, but that photograph was not marked, and that the police officials did not state that they had shown the photograph of the deceased to these witnesses or that they brought the photograph from P.W.1, the mother of the deceased, so as to show the photograph of the deceased to the witnesses; that if all the circumstances relied upon by the prosecution are taken as true and correct, they would not lead to an irresistible conclusion that the crime was committed by the appellant alone and none else and, therefore, he prays to set aside the convictions and sentences recorded against the appellant/A2. 12. On the other hand, the learned Public Prosecutor contended that the boy was found missing from Mahabubnagar on 11.07.2003 and the same boy was found in the company of the appellant and Haneef on the next day in the room of P.W.7 and the boy was identified by P.Ws.7, 11, 15 and 16; that when the investigating officer had shown the photograph of the deceased to witnesses, they identified the boy who was in the company of appellant, M.O.1 chappal and M.O.2 electrical wire were seized, which were used in the commission of the offence, by the police; that the motor cycle owner has categorically stated that he had given the motor cycle to A2 and that on the same night, it was handed over to him by one of the prosecution witnesses; and that all these circumstances would go to show that the offence must have been committed by the accused and none else, and the trial Court after elaborate consideration of evidence on record rightly found the appellant guilty for the offences with which he was charged and there are no grounds to interfere with the same. 13. The entire case rests upon circumstantial evidence. When a case rests upon 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.” Bearing the above principles in mind, it has to be seen whether the appellant/accused is the assailant of the deceased. 14. Imran Ali, aged about 14 years, is none other than the son of P.W.1. He was studying 9th class, English Medium in Bodhan school, Mahabubnagar. He used to leave the house at 9 a.m. and return from the school at 4 p.m. On 11.07.2003, which was Friday, the deceased took bath in the house at about 1 p.m. and went to the mosque for prayer. Thereafter, he did not return. P.W.1 searched for the boy, but invain. At about 9 p.m. on the same day, she received a telephone call from the telephone No.4055126153. The caller demanded P.W.1 to give Rs.2,00,000/- for release of the boy, failing which they would kill the boy. Then on the next day she lodged Ex.P1 complaint and later she came to know that her son was killed by the kidnappers and the dead body was thrown into a drainage at Dilshukhnagar, Hyderabad. 15. P.W.2 is the mother of P.W.1. She speaks on the same lines as stated by P.W.1. P.Ws.3, 4, 5, 6, 9 and 14 did not support the case of the prosecution. They were examined to speak about certain incriminating circumstances against the accused. They have given a complete go by to their earlier version. Therefore, the prosecution sought permission from the Court to cross-examine them. Even after cross-examination, nothing has been elicited in their evidence to connect the accused with the crime. 16. There is no direct evidence to show that the deceased was done to death. The dead body of the deceased was not traced. In view of the fact that the corpus delicti is not traced, it is not known whether it is a case of homicidal death or not. It is not known whether the boy is alive or not. The law is well settled that even in the absence of a corpus delicti, when there is an acceptable direct evidence to show about the homicidal nature of death of the deceased, then it can be acted upon so as to base a conviction. Similarly, there were no circumstances to indicate that the deceased was killed by the kidnappers. 17. The entire case rests upon the evidence of P.Ws.7, 11, 15 and 16. They spoke about the presence of a boy in the company of A2 and one Haneef on 12.07.2003. Even these witnesses also did not say that the deceased was no other than the boy who was in the company of A2 and the friend of P.W.7, Haneef (A1) and A2 came to the room of P.W.7. The evidence of P.W.10 would go to show that he gave his motor cycle bearing No. AP 12E 7879 to Haneef on 11.07.2003 at 12 noon. On the same day at about 11.30 p.m. P.W.7 came to his house and handed over the motor cycle. So from the evidence of P.W.10 it is clear that Haneef took the motor cycle from P.W.10 and on the same day P.W.7 handed over the motor cycle at Mahabubnagar to him. But their evidence does not indicate that in the same motor cycle the deceased boy was taken from Mahabubnagar to Hyderabad. P.Ws.7 and 11 are the students who are staying in a room on rent at Dilshuknagar, Hyderabad. When P.W.7 returned to the room at about 5 or 6 p.m. in the evening on 12.07.2003, he found A2 and the boy aged about 12 years. Similarly, he left the room at 8 p.m. On the same day he along with P.W.16 left Hyderabad to Mahabubnagar, and by the time they left the room, A2, boy and Haneef were present. Similarly, the evidence of P.W.11 would go to show that when he went to the room of P.W.7 at about 2.30 p.m. on 12.07.2003, he found Haneef (A1), Shakeer (A2) and small boy aged about 14 years in the room and he spent about 15 to 20 minutes and the boy played games by talking the cell phone of Vamsikrishna and that at about 3 p.m., he came out of the room of P.W.7. 18. Similarly P.W.15 stated that when he returned to his room at about 7.30 p.m. on 11.07.2003 from Nagarjuna Sagar, he found A2, a boy aged about 11 or 12 years and Haneef (A1) in the room and that on the next day at about 1 p.m., he left the room and returned the room at 7.30 p.m., then he found the room was locked; that while he was proceeding to the room of Vamsikrishna, on the way Haneef and A2 came in his opposite direction on a cycle and when he enquired with them about their presence on the road and also the whereabouts of the boy, they both informed that they left the boy in the house of his relations at Chaderghat and both A2 and Haneef left the room at about 8 p.m. Similarly, the evidence of P.W.16 would go to show that when he proceeded to the room, he found a boy aged 12 years in the company of the deceased. These witnesses stated that the photograph of the boy was shown to them by the investigating officer, one month after the said incident. By seeing the photograph of deceased boy they recognized the boy as that of the deceased. 19. P.W.13 is the investigating officer who examined P.Ws.7, 15 and 16. P.W.18-C.I. of Police who examined the witnesses did not state that he obtained the photograph of the deceased boy from P.W.1 and that a photograph was shown to these witnesses and those witnesses identified the boy as the person who was in the company of A2 and the deceased on 11.07.2003 in the room of P.W.7 at Dilshukhnagar. Similarly the photograph allegedly shown by the Investigating Officers was not brought on record as a material object. In the witness box they did not identify the photograph of the deceased boy as the person whom they saw on 11.07.2003. Therefore, there is absolutely no evidence on that aspect and there is no proof with regard to the identity of the deceased person who was allegedly in the company of A2 and Haneef (A1). Even if the evidence of P.Ws.7, 11, 15 and 16 is to be accepted as true and correct, it would not clinchingly show that the son of P.W.1 was in the company of A2 and Haneef (A1) in the room of P.W.7 on 11.07.2003. These witnesses simply stated that the police officer showed some photograph of the boy and they identified the boy as the person who was in the company of A2 and Haneef. 20. The other circumstance is arrest of A1 and A2 and in pursuance of their confessional statements Exs.P7 and P8, the recovery of M.O.1-one of the chappals of the deceased and M.O.2- electrical wire. These two objects are freely available in the open market as seen from the evidence and they were not concealed by the appellant, so as to infer that the concealment was exclusively within the knowledge of the appellant. 21. Nodoubt P.W.1 identified M.O.1 as one of the chappals of the person, but, at the same time, the chappal like M.O.1 would be available in the open market. Even assuming that as pointed out by the appellant, M.O.1 chappal was seized at the instance of A1 and A2, that by itself is not a circumstance to infer that the crime was committed by the appellant. At best it gives raise to suspicion that this crime might have been committed by the appellant. But, suspicion, however strong may be, cannot take the place of legal proof. The other witnesses are only formal in nature. In view of the fact that P.W.10 is the owner of the motor cycle whose evidence does not indicate that his motor cycle was used for taking the deceased boy from Mahabubnagar to Hyderabad and the evidence of P.W.12 who is the mediator for seizure of motor cycle, is not of much relevant and important. Therefore, even if the prosecution case is to be accepted as a whole, all the links of chain in the circumstantial evidence are not pointing guilt towards the accused. 22. The main missing link with regard to the identity of the deceased was not established. Therefore, the circumstances relied upon by the prosecution do not establish the guilt of the appellant beyond all reasonable doubt. Therefore, the appellant/accused No.2 is entitled for the benefit of doubt, as the prosecution failed to prove the guilt of the appellant/accused No.2 beyond all reasonable doubt for the offences punishable under Section 302 r/w 34 and 363 IPC. 23. In the result, the Criminal Appeal is allowed. The convictions and sentences recorded by I Additional Sessions Judge, Mahabubnagar in Sessions case No.95 of 2004, dated 01.03.2007 against the appellant/accused No.2 for the offences punishable under Sections 302 r/w 34 and 363 IPC are set aside. The appellant/A2 is acquitted of the said charges. The appellant/A2 shall be released forthwith, if he is not required in any other case. The fine amount, if any, paid by the appellant shall be returned to him. _________________ A. GOPAL REDDY. J ____________ K.C.BHANU.J 22nd June 2010 lmv [1] AIR 1990 SUPREME COURT 79