THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.538 of 2007 and 1171 of 2009 Dated : 08.10.2010 Between : G.Chinna @ Chinni & another …. Appellants-Accused a n d The State of A.P. … Respondent THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL Nos.538 of 2007 and 1171 of 2009 COMMON JUDGMENT: (per The Hon’ble Sri Justice Raja Elango) Since both the Criminal Appeals arise out of same judgment, they are being disposed of by this common judgment. 2) In both the appeals, the appellants-accused question the conviction and judgment dated 20.12.007 passed in Sessions Case No.203 of 2006 by the XI Additional District & Sessions Judge (Fast Track Court), Guntur at Tenali, wherein the learned Sessions Judge convicted the appellants under Section 235 (2) of the Code of Criminal Procedure and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.500/- each, in default, to suffer simple imprisonment for six months each for the offence punishable under Section 302 IPC. Accused were also found guilty of the offence punishable under sections 379 and 201 IPC and were sentenced to suffer rigorous imprisonment for a period of three years each and also to pay a fine of Rs.200/- each, in default to suffer simple imprisonment for a period of three years each under each count. 3) The case of the Prosecution, in brief, is that the deceased Dasari Samba Siva Rao, resident of Hyderabad, went to Tenali on the night of 16.11.2005 in order to attend the marriage of his friend’s son scheduled on 17.11.2005. On 17.11.2005 at about 5.45 a.m. the deceased got down from the bus at Tenali, went to Samrat Lodge situated near the bus stand, took a room. Further, at about 5.00 p.m. deceased went to RPM Club, Chenchupet, to attend the marriage where he met his friend Simhadri Prasad, P.W.12. After attending the marriage, the deceased and P.W.12 came out of the marriage venue and found missing of chappal of the deceased. On that, the deceased informed P.W.12 that he will purchase chappals and go to lodge and from there to bus stand, Tenali, to proceed to Hyderabad. When the deceased and P.W.12 stood on the road, the crime auto driven by A.2 came to them along with A.1 and two other passengers in the auto. Deceased boarded the auto instructing A.2 to go to bus stand. On the way two passengers traveling in the auto got down from the auto and the deceased only was left over. Deceased requested A.2 to stop the auto near a chappal shop, for which A.2 agreed. Having observed from the cell phone calls attended by the deceased that the deceased is a non-resident of Tenali and also having kept an eye over the gold ornaments of the deceased, A.1 and A.2 decided to commit theft of the valuables from the deceased. In pursuance of the same, A.1 requested A.2 to drop him in Burripalem road before taking the deceased to Chappal shop. At the request of A.1, the deceased also accepted for the same. On that, A.2 took the auto to the outskirts of Tenali town, Burripalem road, where there were no street lights and demanded the deceased to give the gold ornaments threatening him at the point of knife. When the deceased opposed the accused, A.2 caught hold the hands of the deceased while A.1 cut his throat with stickers cutting knife and caused his death. Thereafter, accused thrown the dead body of the deceased in the nearby bushes and fled away with gold ornaments, cell phone and cash of Rs.750/-. After coming to know about the non-return of the deceased to Hyderabad through the wife of the deceased, P.W.1 made enquires at Tenali and on information of lying of some unknown dead body, went to the spot and found the dead body of the deceased. As such, he lodged the complaint. 4) Basing on the above said complaint, P.W.24 Head Constable registered a case in Crime No.181 of 2005 for the offence punishable under Sections 302, 379 and 201 of Indian Penal Code, issued Express F.I.Rs. to all the concerned. The Circle-Inspector of Police took up further investigation, visited scene of offence, examined scene of offence, drawn rough sketch, got photographed the scene of offence and also the dead body of the deceased. Further, the Circle-Inspector also held inquest over the dead body of the deceased before the mediators. During the course of investigation, on 05.12.2005 accused were apprehended, who voluntarily confessed to have committed the offence. Further, after completion of investigation and collecting all the necessary reports, Police filed charge sheet against the accused, which was numbered as P.R.C. No.11 of 2006 by the II Additional Judicial First Class Magistrate,Tenali. 5) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 307, 379 and 201 read with 34 of Indian Penal Code, in which, the accused denied the charges and claimed for trial. 6) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 28 and marked Exs.P.1 to P.37 apart from marking MOs 1 to 29. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. Though the accused did not choose to adduce any evidence on their behalf, marked Exs.D.1 to D.3 in their defence. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge rendered the impugned judgment. 7) Heard the learned counsel for the appellants and the learned Public Prosecutor for the State. 8) Learned counsel for the petitioners submitted that P.W.12 examined by the Prosecution to establish ‘last seen theory’, the deceased and accused, is totally unnatural and unbelievable and his evidence is not inspiring the evidence of the Court. He further submitted that mere recovery of material objects owned by the deceased is not a ground to convict the petitioners for the offence punishable under Section 302 IPC. In support of his contentions, he relied on Musheer Khan @ Badshah Khan v State of Madhya Pradesh[1] and Manealli Anjaneyulu v. State of A.P.[2] and seeks to acquit the accused from the charges leveled against them. 9) Now the point for consideration is ‘whether the Prosecution is successful in bringing home the guilt of the appellants beyond all reasonable doubts?’ 10) This Court perused the entire material on record. While connecting accused with the present crime, the learned Sessions placed reliance on the evidence of P.W.12, recovery of MOs 1 to 5 from the accused and also the confession of the accused and, thus, convicted the accused as stated above. 11) The entire prosecution case is based on the circumstantial evidence. One of the circumstances relied on by the Prosecution and appreciated by the learned Sessions Judge is of the evidence adduced by P.W.12, who deposed that while himself and the deceased were returning from the marriage venue, the deceased informed him that he lost his chappal in the marriage hall and the deceased stated to him that he intends to purchase chappal and after purchasing the same, he will return to Hyderabad. The said witness accompanied the deceased to the road where the deceased boarded in an auto. Further, P.W.12 stated that while the deceased was boarding into the auto, he saw the accused persons in the driver seat and two more persons were sitting in the rear seat. He further stated that he also witnessed a sticker affixed on the auto, by which, he can identify the auto rickshaw in which the deceased traveled. Hence, from a reading of the evidence of P.W.12, it is clear that he has seen the accused and two more persons in the auto boarded by the deceased. 12) Further, P.W.12 deposed in the Court that he identified the accused persons in the Test Identification parade. During the cross examination, P.W.12 admitted that he has not informed the investigating officer regarding the physical features of the accused persons concerned and also it is not the case of the prosecution that the said witness knows the accused persons earlier. In the absence of informing the physical features of the accused concerned to the investigating officer, the identification of the accused by P.W.12 in the Test Identification Parade is of no use to the prosecution case. 13) Further, it is also not clear as to when the physical features or the description of the accused like name and other particulars are not revealed by P.W.12, how the investigating officer secured the presence of accused persons and proceeded to arrange for an Identification Parade. It is well settled proposition of law that Test Identification Parade conducted by the investigating officer is only for the purpose of satisfying himself that he is proceeding in the right path as per the evidence collected or on the basis of information given by the witnesses. In the absence of any information regarding the particulars of the accused given by P.W.12, as admitted by him in his cross examination, the Identification Parade will be of no use to the Prosecution case. The evidence of P.W.26-investigating officer reveals that the photographs of the accused persons were published in the newspaper. That being the case, identification of the accused before the Court is of no evidentiary value. The evidence of P.W.12 also goes to show that he was present at the time of inquest, but he was not named as a witness in the inquest and the reasons for the same are not explained by the investigating officer. 14) As per the Prosecution case, P.W.5 is the person who saw the accused alive prior to commission of offence. If the evidence of P.W.5 to be believed, the case of the prosecution that P.W.12 saw the deceased along with the accused prior to the commission of the crime cannot be appreciated, more particularly when P.W.12 was also present at the time of inquest. After eschewing the evidence of P.W.12, the only evidence available on record to connect the accused with the crime is recovery of material objects. To connect the accused with the present crime, five material objects were relied on by the Prosecution, out of which, two were recovered from the accused and other material objects were recovered pursuance to the confession of accused. The said recovery of the object and identification of the same by P.W.1, wife of the deceased, itself cannot be a ground to convict a person for an offence punishable under Section 302 IPC. 15) Another circumstance relied on by the learned Judge is that the investigation agency examined the owner of the auto as P.W.16 to establish that the crime auto was handled by the accused persons on the date of occurrence. P.W.16 deposed that he used to give his auto to one Elamanda on lease. He also informed that he came to know that said Elamanda used to sub-lease the auto to the accused persons. But, said Elamanda was not examined by the prosecution to establish that the crime auto was in possession of the accused on the date of occurrence and the reasons for such non-examination are not explained by the Prosecution. 16) Further, it is the case of the Prosecution that after committing the offence, the cell phone owned by the deceased was given to another person and the same was in usage. But, there is no explanation as to why the investigating agency immediately not investigated into the same from that point of view and tried to secure the accused immediately and it is only after a lapse of 18 days the investigating agency could able to arrest the accused. 17) In view of the foregoing reasons, this Court is of the view that basing on the available evidence, it is unsafe to convict a person for an offence punishable under Section 302 of the Indian Penal Code. In view of the same, benefit of doubt can be given to the appellants. 18) In the result, both the Criminal Appeals are allowed. The conviction and sentence passed by the learned XI Additional District & Sessions Judge (Fast Track Court) Guntur at Tenali in Sessions Case No.203 of 2006 on 20.12.2006 for the offence punishable under Sections 302, 201 and 379 of Indian Penal Code is hereby set aside and they are acquitted for the said offence. Consequently, the appellants are set at liberty forthwith, if they are not required in any other case. The fine amount paid by the appellants, if any, shall be returned to them. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 8th October, 2010. sur [1] 2010 (2) ALT (Crl.) 1 (SC) [2] 1999 (1) ALD (Crl.) 806 (AP)