HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1680 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) This Criminal Appeal is directed against the conviction and sentence recorded in S.C.No.59 of 2006 by the I Addl. Sessions Judge, Nalgonda, vide judgment dated 05.04.2007, whereby and whereunder the learned Sessions Judge convicted the appellant- accused herein under Section 235(2) Cr.P.C. for the offences punishable under Sections 302 and 379 IPC and, accordingly, sentenced him to suffer imprisonment for life and also to pay a fine of Rs.1,000/- for the offence under Section 302 IPC and further sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs.200/- for the offence under Section 379 IPC, while acquitting him of the offences punishable under Sections 3(1)(xii) and 3(2)(v) of the SCs & STs (POA) Act, 1989. 2. Briefly, the case of the prosecution is as under: i) On 18.01.2003 Ramavath Vali (D.1) and Ramavath Kalamma (D.2) went to the outskirts of Thanedaripally to get Dusseri theegalu (plant wire) for manufacturing of baskets. While they were attending their work, the accused saw them and went to D.2 and tried for sexual assault, when she resisted him, the accused beat with a stone and caused severe head injury to D.2. In the meanwhile, D.1 came to the scene and raised hue and cries. Due to which, the accused also beat D.1 with stones and caused severe injuries. D.1 and D.2 fell down on the ground and became unconscious. Again, the accused thrown boulders on the face and head of D.1 and D.2 till their death and brutally murdered them on 18.01.2003. ii) On 19.01.2003 P.W.1 gave Ex.P.1 complaint to Gurrampodu P.S., on which, Crime No.5 of 2003 for the offences under Sections 302, 376 and 379 IPC was registered by P.W.15 the S.I. of Police. Then, P.W.16 the C.I. of Police, Nampally Circle, took up investigation, examined P.Ws.1 to 4 and others and recorded their statements, visited the scene of offence in the presence of mediators i.e., P.W.5 and Ramavatha Kotya Naik, conducted scene of offence panchanama, drawn rough sketch map of the scene, obtained photographs of the scene, held inquest over the dead bodies of D.1 and D.2 in the presence of P.W.6 and other panch witnesses, collected broken bangles, stones and blood stained chappals, and sent the dead bodies to the Government Community Hospital, Devarakonda for post mortem examination, preserved the viscera and sent it to the Director, FSL, Hyderabad, for analysis and report. The doctors, who conducted autopsy over the dead bodies, opined that the cause of death of the deceased as multiple head injury. iii) Subsequently, as per the direction of the Superintendent of Police, Nalgonda, P.W.19, S.D.P.O., Devarakonda, took up further investigation on 20.02.2003 and re-examined the witnesses. In the meanwhile, the police received credible information that the person responsible for the commission of this crime is resident of Kacharam Village and the property has been disposed of by him in Miryalaguda area. During the course of investigation, on 11.03.2003, P.W.19 and the police party had apprehended the accused and, on interrogation, the accused confessed his guilt about the commission of the offence before mediators i.e., P.Ws.8 and 9. After completion of investigation and on receipt of necessary reports from the authorities concerned, he filed charge sheet under Sections 302, 379 of IPC and Sections 3(1) (xii) and 3(2)(v) of the SCs & STs (POA) Act, 1989. The plea of the accused was of total denial. 3. In order to prove the guilt of the accused, the prosecution examined PWs.1 to 21 and got marked Exs.P.1 to P.28 apart from the case property M.Os.1 to 10. On behalf of the defence, D.W.1 was examined and Exs.D.1 to D.4 were marked. 4. P.W.1, son of D.1, stated that he gave a report to the police, after witnessing both the dead bodies with bleeding injuries on their heads, on the next day morning of the incident. According to him, about three years back, his mother Vali (D.1) and his sister-in-law Kalamma (D.2) together went to Thanedaripally shivar to bring dusseri theegalu at about 11.00 a.m. and did not return to their house. Then, they searched for them on that day and could not traced. On the next day morning at 7.00 a.m., he saw their dead bodies at Thanedaripally shivar near a tank. P.W.2, husband of D.1, and P.W.3, brother of P.W.1, corroborated the evidence of P.W.1. P.W.3 also deposed that he found missing of gold ear studs, gold black bead stones and silver anklets on the dead body of D.2 as she wore the same when she went to collect dusseri theegalu and he also identified M.O.1 stones. 5. P.W.4, husband of D.2, stated in his evidence that about three years back, on one day at 10.00 a.m. his wife and junior paternal aunt D.1 went to the outskirts of Thanedaripally for collection of dusseri theegalu and did not return back to their home till the evening. Then, they searched for them but in vain. On the next day morning, they found their dead bodies near Jangareddy kunta in an unidentified position with bleeding injuries on their faces and the dead body of his wife appears to have been beaten on her head and vagina. According to him, his wife was having gold ear studs, black beads gold pusthelu and silver anklets at the time she left their house. H also stated that M.O.2 is the ear studs, M.O.3 is one black beads gold pusthelu with locket, M.O.4 is two silver anklets and M.O.5 is the clothes and they belongs to his wife. M.O.6 is the clothes of D.1 and M.O.1 are the stones witnessed by him at the scene of offence with the dead bodies of both the deceased. 6. P.W.5 is the panch witness for the scene of offence panchanama. He stated that the dead bodies of D.1 and D.2 appear to be beaten with stones on their heads and he observed blood stained stones, blood stained earth, controlled earth near the dead bodies and the police sized them along with the clothes of D.1 and D.2 in their presence from the scene of offence and they also observed two hairs stick to the hands of dead body of D.2 and some hairs near her dead body and they were seized from the scene by the police, under cover of Ex.P.2 panchanama. 7. P.W.6 stated in his evidence that he is the panch witness for the inquest conducted on the dead body of D.1 under Ex.P.3 panchanama and he observed that D.1 appears to have been murdered by beating with stones on her head. He further stated that he is also the panch witness for the inquest conducted on the dead body of D.2 under Ex.P.4 panchanama and he observed that she was beaten with stones on her head and found one gold ear stud with the dead body and another gold ear stud, black bead stone and silver anklets missing from the dead body. The panchas opined that D.2 was raped and murdered by beating with stones and that her gold ornaments were taken away. 8. P.W.7 Goldsmith deposed that in the month of January 2003, P.W.13 brought some gold and silver anklets and wanted him to sell the same as they were brought by the brother-in-law of G.Venkanna P.W.12. Then, he took the ornaments and paid a sum of Rs.3,900/- to P.W.13 on 19.1.2003 towards sale consideration. He further deposed that 10 days thereafter, the police took P.Ws.12 and 13 to his shop at Nidamanoor and enquired him with regard to the purchase of the said ornaments and he informed about the purchase of the ornaments from P.Ws.12 and 13 and then the police seized the gold ornaments under cover of panahanama. He further deposed that M.O.3 is the black beads gold pusthelu and M.O.4 is the silver anklets purchased by him and seized by the police from him. 9. P.W.13 stated that P.W.7 is Junior to him in the High School at Nidamanoor and that he knows P.W.12 who is a mason. P.W.12 introduced the accused to him about four years back stating that the accused is his brother-in-law and requested him to sell the gold and silver ornaments of the accused as the accused is celebrating his son’s 21st day function and wanted some money and gave the black beads chain, gold chain and a pair of silver anklets. Then, he went to P.W.7 along with the ornaments and informed the same to him, for which, P.W.7 agreed to take the gold ornaments and on the next day gave Rs.3,900/- towards sale consideration. He took the said amount and gave it to the accused where the accused and P.W.12 are talking near to the house of P.W.12. After 2 ½ months, the police, accused, P.W.12 and panchas came to him and all of them proceeded to the house of P.W.7 and on enquiry, P.W.7 showed the gold and silver ornaments to them and the police seized the ornaments at the instance of the accused. P.W.12 corroborated the evidence of P.W.13. 10. P.W.8, the panch witness for the confession of the accused and recovery of stolen ornaments, stated in his evidence that the accused informed him that about 50 days back, he committed the murder of D.1 and D.2 at Thanedaripally shivar by beating with stones and that he snatched gold pusthelu thadu, one ear stud, silver anklets from the dead body of D.2 and sold away the same to P.W.7 with the help of P.Ws.12 and 13. P.W.9, another panch witness for the confession of the accused and snatching of gold ornaments from the dead body of D.2, corroborated the evidence of P.W.8. 11. P.W.10, M.R.O., Gurrampodu, issued Ex.P.7 caste certificate to the accused stating that the accused belongs to Buntu Caste (B.C.). P.W.11, M.R.O., P.A.Pally, issued Ex.P.8 caste certificate to D.1 and D.2 stating that they belong to Lambada Caste. 12. P.W.14, Civil Assistant Surgeon at Deverakonda, stated that she collected hair samples 12 in number from the accused with root in a polythene bag and sent the same under Ex.P.9 report to the Court for sending the same to FSL. As per Ex.P.10 original FSL report, the hair of the accused in item No.1 is examined and Morphological characteristics of hair in item No.1 in file No.SER/82/03(A) and the hair in item No.8 of file No.SER/82/2003 are similar. 13. P.Ws.15, 16, 19, 20, and 21 are the Investigating Officers. P.W.18 is the photographer. 14. P.W.17, the doctor, who conducted autopsy over the dead bodies of D.1 and D.2, on examination of the dead body of D.1, found the external injuries viz., irregular crushed injury over the left maxillary area size 7” x 4” x 4” multiple fracture of maxillary and mandible bones on left side, irregular crushed injury of left temporal bone size 4” x 2” x 2 “, both lungs ruptured, left lobe of liver ruptured, multiple injury over skull, right cerebral hemisphere injured. He also found the external injuries over the dead body of D.2 i.e., irregular crushed injury over right temporal area 7”x4”x4”, nasal septum crushed, lacerated wound just over the right eye brow size 4”x3”x1/2”, lacerated wound just above the left eye brow size 2”x2”x1”, both sides of mandible fractured, upper row of teeth lost, multiple injuries of skull, stab injury over the left inguinal region 1”x1”x3”, vertical tear of complete perennial body between vagina and anal canal, large intestine protruded through the tear. He opined that the cause of death of the deceased is “multiple head injury”. He issued Exs.P.22 and P.23 post mortem examination reports of D.1 and D.2 respectively. 15. After evaluating both oral and documentary evidence available on record, the learned Sessions Judge convicted and sentenced the accused as stated supra. Being aggrieved by the same, the accused preferred this criminal appeal. 16. We have heard both sides and perused the entire record. 17. Admittedly, there is no eye-witness to the occurrence. Hence, the entire case rests on the circumstantial evidence. The prosecution tried to establish the chain of circumstances which pointing towards the guilt of the accused. In the said venture, the prosecution mainly relied on the evidence of P.Ws.7, 8 and 9. The prosecution recovered the stolen articles from P.W.7 in the presence of P.Ws.8 and 9. Further, the hair recovered from the hands of the dead body of D.2 during the course of conducting the scene of offence is tallied with the hair of the accused. Except the evidence of these witnesses, there is no other witness to connect the accused with the crime. 18. As far as recovery of the stolen articles is concerned, it is highly unbelievable for the following reasons: 1) More valuable properties than that of the seized properties are available on the dead body of the deceased apart from a cash of Rs.900/- with the deceased. 2) P.Ws.8 and 9 are the interested witnesses to the case of the prosecution and they are relatives to the deceased. 3) After seizure of the stolen articles, none of the witnesses identified that the deceased owned the said articles. 19. The evidence of P.Ws.8 and 9 is totally contradicting with each other with regard to recovery of stolen articles from P.W.7, since as per the evidence of P.W.8, after the alleged confession of the accused with regard to the offence, he went to Nalgonda in that night and, on the next day morning he went to Devarakonda, from there, they went to Nidamanoor for recovery of the stolen articles from P.W.7, but as per the evidence of P.W.9, on the same day they proceeded to Nidamanoor and recovered the stolen articles from P.W.7. 20. On the basis of the said unbelievable circumstances relating to recovery of the stolen articles, it is highly unsafe to convict the accused. 21. The second circumstance relied on by the prosecution is that the hair found in the hands of the dead body of D.2 is tallied with the hair collected from the accused person. It is unfortunate to note that the Investigating Officer, who claims that he collected hair from the hands of the deceased as well as from the accused, failed to subject the same for D.N.A. test. If D.N.A. test is conducted, it would be more appropriate and authentic, since the results based on D.N.A. test would be 99.99%. But, similarity of the hair is highly possible in one among four persons. As rightly pointed out by the learned counsel for the accused, the same was not mentioned in the inquest panchnama. 22. It is well settled proposition of law 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.” 23. Applying the above said principles to the case on hand, we are of the view that the prosecution has miserably failed to connect the accused with the crime and the present evidence adduced by the prosecution is not clinchingly pointing towards the guilt of the accused and the conviction and sentence based on surmises and suspicion will not stand. Hence, the conviction and sentence recorded by the trial Court are liable to be set aside. 24. In the result, the Criminal Appeal is allowed and the conviction and sentence recorded against the appellant-accused by the learned I Addl. Sessions Judge at Nalgonda, for the offences under Sections 302 and 379 of IPC, in Sessions Case No.59 of 2006, by judgment dated 05.04.2007, are hereby set aside and, consequently, the appellant-accused is acquitted of the said offences. The appellant- accused shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid shall be returned to him. ____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J 30th August, 2011 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1680 of 2007 (Judgment delivered by Hon’ble Sri Justice Raja Elango) (Allowed) 30th August, 2011 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1680 of 2007 Dated:30.08.2011 BETWEEN: Cheguri Satyanarayana @ Satyanari … Appellant/ Accused AND The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: [1] AIR 1990 SUPREME COURT 79