THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.257 of 2008 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal has been preferred by the appellant/A.2 against the judgment dated 07.02.2008, passed in S.C.No.540 of 2006, on the file of the Metropolitan Sessions Judge, Hyderabad, whereunder and whereby the appellant/A.2 was found guilty of the offences under Sections 457, 302 and 392 I.P.C., and was convicted therefor and sentenced to undergo imprisonment for six months for the offence under Section 457 I.P.C; imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for two months for the offence under Section 302 I.P.C; and to suffer rigorous imprisonment for two years for the offence under Section 392 I.P.C. All the sentences were directed to run concurrently. The case of the prosecution, in brief, is as follows: Yerpula Maisamma (hereinafter referred to as ‘the deceased’), aged 70 years was a widow without children and was living lonely in one of the portions of her own house at Konda Reddy Guda, Kishanbagh, Hyderabad; that A.1, who is a close relative of the deceased, was not doing any work and was habituated to luxuries and vises; that A.1 intended to commit murder of the deceased and theft her jewellery in order to meet the expenses for luxuries and vises and took the help of A.2, who is his close friend; that on 03.01.2006 between 19.00 and 20.00 hours, P.W.4 observed the presence of A.1 near Lalitha Hotel in the vicinity of house of the deceased; that A.1 and A.2 in pursuance of their plan and common intention were keeping watch on the house of the deceased; that between 21.00 and 22.00 hours, when there was no movement of the public in the surroundings, A.1 and A.2 climbed on the house of the deceased on the back side and got into front courtyard; that when A.1 tapped door of inner room, wherein the deceased was sleeping by closing doors from inside, the deceased after ascertaining the identity of A.1, opened the door and enabled A.1 and A.2 into that room; that while sitting on cot of the deceased, A.1 made attempt to snatch away cotton pouch containing cash from the deceased; that when the deceased resisted, the accused laid her on cot, A.1 mounted on her chest and abdomen violently throwing his weight and A.2 caught hold of her both legs tightly preventing her movements; that due to the weight of A.1, there was fracture of right and left ribs of the deceased leading to Traumatic Asphyxia and death; that without realizing the death of the deceased, A.1 and A.2 attempted to strangulate her with a towel; that A.1 further pressed pillow against her face and then A.1 and A.2 committed theft of cash and ornaments from the person of the deceased and that in their hurry, they omitted to commit theft of other ornaments from the deceased which remain on her body. On 04.01.2006 at about 10.00 a.m, one Jangaiah (not examined), who is the tenant of the deceased, informed P.W.2, who is the nephew of the deceased that the deceased was not responding for the call. Then P.W.2 informed the same to P.W.1, who is the brother of the deceased. They rushed to the scene of offence and found the deceased with bleeding injuries to both the ear lobes and further found missing of her jewellery. Thereafter, P.W.1 lodged a report under Ex.P.1. On receiving Ex.P.1-report from P.W.1, P.W.11-the then Sub Inspector of Police registered the same as a case in Crime No.2 of 2006 for the offence under Section 174 Cr.P.C and issued F.I.R- Ex.P.18. Thereafter, he took up investigation, visited the scene of offence, prepared an observation report and held inquest over the dead body of the deceased in the presence of P.Ws.6 and 8 under Exs.P.12 and 14 respectively. On 04.01.2006, on requisition, P.W.7-Associate Professor in the Department of Forensic Medicine, Osmania Medical College, Hyderabad, held inquest over the dead body of the deceased and issued Ex.P.13-post mortem report opining that the deceased died due to traumatic asphyxia. P.W.12-Inspector of Police, who took over further investigation, examined P.Ws.1,3 and 4 and recorded their statements. On the basis of investigation done, he altered the section of law from Section 174 Cr.P.C to Sections 448, 302 and 380 I.P.C and issued altered F.I.R- Ex.P.19. On 09.01.2006, A.1 and A.2 were produced by a Team of Police Officers before P.W.12. During the course of investigation, at the instance of A.1 and A.2, M.Os.8 and 9 were recovered in the presence of P.W.10 and thereafter, M.Os.2 to 7 were recovered under Ex.P.17 panchanama. Later, the accused were sent to remand. After completion of investigation and receipt of relevant documents, he filed charge sheet. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.19, besides case properties M.Os.1 to 9. On behalf of the accused, D.W.1 was examined and Exs.D.1 and D.2 were marked. After the closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C so as to enable them to explain the incriminating circumstances appearing against them. The accused denied the allegations and pleaded not guilty. After hearing the arguments, the case was posted for judgment. At that time, it was reported before the learned Sessions Judge that A.1 was murdered by A.2. Hence, the case stood abated against A.1. Insofar as A.2 is concerned, the learned Sessions Judge, on considering the entire material available on record, found the accused guilty of the offences under Sections 457, 302 and 392 I.P.C. and accordingly convicted and sentenced him as stated supra. P.W.1, who is the younger brother of the deceased, deposed that the husband of the deceased died and she was getting pension; that the deceased owns four rooms and a hall, out of which, she used to live in the hall and let out the other rooms; that on 04.01.2006 at 9.00 a.m, P.W.2 came and informed him that the deceased was not getting up from the bed; that he went to the house of the deceased, found bleeding injuries to the ear lobes of the deceased and missing of her two ear studs, and also jewellery, which she used to wear in her neck regularly; that he went and informed his another sister about the same and that thereafter, went to Bahadurpura Police Station and gave Ex.P.1 report to the police. P.W.2, who is the son of younger brother of the deceased, deposed that A.1 is the son of his elder brother; that on 04.01.2006 at about 10.00 a.m, one Jangaiah came to him and informed that the deceased was not responding for the call; that he informed the same to his father, uncle (P.W.1) and others and that he did not find ear ornaments of the deceased and he saw bleedings injuries to both the ear lobs of the deceased. P.W.3, who is the brother of A.1, did not support the case of the prosecution and was declared hostile P.W.4, who is the wife of P.W.3, also did not support the case of the prosecution and was declared hostile. P.W.5 is the photographer, who took photographs of the deceased under Exs.P.4 to P.7. P.W.5 is the panch witness to the scene of offence observation panchanama and he signed Ex.P.12-observation panchanama. P.W.7 is the doctor, who conducted autopsy over the dead body of the deceased. He issued Ex.P.13-post mortem certificate opining that the cause of death was due to traumatic asphyxia. P.W.8 is the panch witness to the inquest and he signed Ex.P.14-inqest report. P.W.9 is the Sub Inspector of Police, Bahadurpura Police Station, who arrested the accused. P.W.10 is also a panch witness. He deposed that the statements of A.1 and A.2 were recorded and M.O.8-towel and M.O.9- pillow were recovered at the instance of A.1 and A.2. He also deposed that A.1 took them to his house and took out M.O.1-pair of gold ear studs and that A.2 took them to his house and took out M.Os.2 to 7 and handed over the same to the Inspector of Police. P.W.11 is the Inspector of Police, who registered the crime based on the report given by P.W.1. He visited the scene of offence, examined P.W.1 and recorded his statement. He got the scene of offence photographed, conducted inquest over the dead body of the deceased and thereafter sent the dead body for post mortem examination. P.W.12 is the Inspector of Police, who took up further investigation. He altered the section of law, recorded the statements of P.Ws.1, 3 and 4, recovered M.Os.8, 9 and 2 to 7 at the instance of A.1 and A.2, arrested the accused prior to their giving statements and filed charge sheet after completion of investigation. D.W.1, who is the sister of A.1, was examined on behalf of the accused. She deposed that on 04.01.2006 after the death of the deceased, the police took A.1, A.2, P.W.2 and some others to police station at about 12.00 noon; that on the night when she went to the police station, the police informed her that they would sent them in the next morning; that on 05.01.2006, the police left others except A.1 and A.2 and that they waited for two days and on the advise of some unknown gentlemen, she got a letter written to this Court. Ex.D.2 is the copy of the telegram sent by her to this Court. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. The present case is totally based on circumstantial evidence. There is no eyewitness to the occurrence to connect the accused with the crime. With regard to recovery of some gold ornaments from the possession of the appellant/A.2, P.W.10 was examined by the prosecution. As per the evidence of P.W.10, A.2 took out M.Os.2 to 7, alleged to have been stolen from the deceased, from his house, and handed over the same to the Inspector of Police. The Investigation Agency has not explained as to why the confessional statement of the accused were not recorded by them and the present recovery also not come under the purview of Section 27 of the Indian Evidence Act, 1872. Further, it is also alleged by the prosecution that the said articles were produced by A.2. When the articles were produced by A.2, the same cannot be considered as recovery from his possession. Further, it is the case of the prosecution that prior to the occurrence, P.Ws.1 to 4 visited the house of the deceased and subsequently left the house. But not even a single witness was examined to substantiate the visiting of the house of the deceased by A.2. Even with regard to recovery of ear rings from A.2, it is not the case of the prosecution that the same were blood stained. In the absence of any evidence to connect A.2 with the commission of murder, the recovery cannot be a ground to convict the accused for an offence under Section 302 I.P.C, since it is settled law that mere recovery cannot be a ground to convict a person for an offence under Section 302 I.P.C. Further, the said recovery of M.Os.2 to 7 was also not established in the manner it has to be established before the Court. But taking into consideration the fact that the jewelleries, which were recovered from the house of A.2, were identified by the relatives of the deceased, A.2 can be convicted for the offence under Section 392 I.P.C., but not for the offence under Section 302 I.P.C. Accordingly, A.2 is convicted for the offence under Section 392 I.P.C. Insofar as the sentence is concerned, the Court below has already sentenced him to undergo rigorous imprisonment for two years. Since A.2 was taken into custody and sent to jail pursuant to the impugned judgment, we are of the view that the sentence can be restricted to the period already undergone by him. Accordingly, the conviction and sentence recorded by the Metropolitan Sessions Judge, Hyderabad, in S.C.No.540 of 2006 against the appellant/A.2 for the offences punishable under Sections 302 and 457 I.P.C., are set aside, confirming the conviction for the offence under Section 392 I.P.C, but the sentence is confined to the period already undergone by the appellant/A.2. He shall be set at liberty forthwith, if not required in any other crime. In the result, the Criminal Appeal is disposed of. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Dt.19.12.2011 va