THE HON'BLE SRI JUSTICE A. GOPAL REDDY & THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEALS No.654 of 2007 & 251 OF 2008 COMMON JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) Criminal Appeal No.654 of 2007 is filed by accused Nos.1 and 2 in Sessions Case No.69 of 2006 and Criminal Appeal No.251 of 2008 is filed by accused NO.3 in the above Sessions Case aggrieved by the conviction and sentence imposed by the learned III Additional Sessions Judge, Karimnagar, vide judgment dated 18.4.2007. Since both the appeals arise from out of one and the same judgment passed by the learned III Additional Sessions Judge, Karimnagar, in S.C.No.69 of 2006, they are being disposed of by this common judgment. The case of the prosecution reads as follows: On 7.1.2005, accused Nos.1 to 3 in furtherance of their common intention committed abduction of Koyyada Kanakalaxmi and committed Gang Rape on her one after another and thereafter killed her and committed theft of gold pusthela thradu and also screened the offence of murder. P.W.1-Village Secretary of Madaram and Chamanpalli villages lodged a complaint on 8.1.2005 contending that he found an unknown female dead body with injuries. Basing on the said complaint, P.W.20-N. Venkataswamy, S.I. of Police registered a case in Cr.No.5 of 2005 for the offence under Section 302 IPC and rushed to the place of offence situated in the land of Devikistaiah of Dharmaram located in Sy.No.179 at the outskirts of Chamanapalli village and noticed a female dead body aged about 30 to 35 years lying at a distance of 30 yards from BT road running in between Madaram and Chamanpalli village and also noticed traces of dragging from the culvert and also found some articles scattered hither and there. P.W.20 informed the Inspector of Police P.W.22-M. Mahesh, who took up investigation, rushed to the place of offence, conducted crime detail in the presence of panchas Rasoori Kishan P.W.12 and Palamakula Madhava Reddy and prepared a sketch of scene of offence and seized the material objects Nos.5, 9 to 17 under Ex.P3 and because of night, the dead body was brought to the Government Hospital, Karimnagar and then, he gave a publication in the news papers and circulated in T.V. for identifying the dead body and on the next day i.e. on 9.1.2005 he secured the presence of same panchas and conducted inquest over the dead body and seized the wearing apparels M.Os.1 o 4 and M.O.8 from the dead body and gave requisition for conducting autopsy over the dead body. On that, a team of Doctors P.Ws.17 and 19 conducted autopsy over the dead body and they observed vaginal swab, smear and even hyoid bone, and forwarded them to RFSL and upon that, the experts gave opinion. While so, on 10.1.2005 P.W.2-husband of the deceased after observing the photo of dead body in a newspaper and TV came to the Government Hospital, Karimnagar and identified the deceased as that of his wife and he disclosed that on 7.1.2005 his wife went to Illanthakunta Sriram Temple for attending a marriage of their relative in the morning hours and as she did not return he enquired with other persons, who attended the marriage and through them, he came to know that they got boarded the deceased in an auto on 7.1.2005 at about 8.30 or 9.00 pm., at Peddapally bus stop for going to Godavarikhani. P.W.2 further stated that the gold Pushelatradu was missing from the person of the deceased. Basing on the statement of the husband of the deceased, Sections 363 and 379 were added. P.W.22 examined and recorded the statements of witnesses and P.Ws.5 to 8, who are said to have last seen the deceased in the company of the accused and who stated that there is a caption on the back of auto as Choodalanivundi. Basing on that, he arrested accused 1 and 2 on 8.5.2005 at the bus station, Godavarikhani and found the auto with a caption of Choodalanivundi. But, it was found rubbed and then, he secured the presence of two mediators P.Ws.13 and 14 and in their presence he interrogated the accused and in pursuance of their confession Ex.s.P6 and P-7 dated 8.5.2005 he seized the auto bearing No.AP-15-V-8105 and also a Khakhi shirt and an iron rod at the instance of accused No.2. A1 stated that he pledged the gold ornaments collected from the dead body, with P.W.11 Vangalaplu Ramu and the accused led the panchas and police officials to the house of P.W.11, where P.W.22 seized, M.O.6 gold pusthelathradu from P.W.11 under a cover of panchanama Ex.P8 dated 8.5.2005 at the instance of accused No.1 and thereafter accused 1 and 2 led them to the house of accused No.3 and P.W.22 arrested accused No.3 and then forwarded accused Nos.1 to 3 for potency test and P.W.16, Dr. K. Pramod Kumar conducted potency test on accused 1 to 3 and found they are capable to do sexual act and thereafter, the accused were produced before the Court for judicial remand and P.W.22 gave a requisition Ex.P16 on 9.6.2005 to the Judicial Magistrate of First Class, Sulthanabad for holding Test Identification Parade on the ground that P.Ws.5 to 8 stated that they can identify the assailants. On that P.W.18- Judicial Magisttrate of First Class, Sulthanabad conducted identification parade , wherein P.Ws.5 to 8 identified the accused. After receipt of FSL report, P.W.22 laid charge sheet against the accused for the offences under Sections 363, 376, 302, 379 and 201 r/w 34 IPC. The learned III Additional Sessions Judge, Karimnagar, framed charges under Sections 364 r/w 34, 376 (2)(g) IPC, 302 r/w 34 IPC, 379 r/w 34 IPC and Section 201 r/w 34 IPC against the accused, read over and explained to them, for which they pleaded not guilty and claimed to be tried. In order to substantiate its case, the prosecution in all examined P.Ws 1 to 23 and got marked Exs.P-1 to P-29 besides M.Os.1 to 19. On behalf of the accused, no oral or documentary evidence was adduced. On appreciation of oral and documentary evidence, the learned Sessions Judge found all the accused not guilty for the charges under Section 376(2)(g) of IPC and Section 201 r/w 34 IPC and acquitted them for the said offence. But the learned Judge found all the accused guilty for the charge under Section 364 r/w 34 IPC and 302 r/w 34 IPC; and accused No.1 for the charge under Section 379 IPC and A2 and A3 for the charge under Section 379 r/w 34 IPC and accordingly, convicted and sentenced them as follows: A1 to A3 are each sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-each in default to suffer S.I., for three months for the offence under Section 302 r/w 34 IPC; A1 to A3 are each sentenced to undergo Rigorous Imprisonment for a period of Five years and to pay a fine of Rs.500/- each in default to suffer S.I. for two months for the charge under Section 364 r/w 34 IPC; A1 is sentenced to undergo R.I. for a period of one year for the charge under Section 379 IPC; A2 and A3 are each sentenced to undergo R.I. for a period of one year for the charge under section 379 r/w 34 IPC. Aggrieved by the said conviction and sentence, A1 to A3 preferred the present appeals. Heard the learned Counsel and perused the material available on record. It is the case of the prosecution that the accused in furtherance of their common intention abducted the deceased and committed Gang rape and killed her and committed theft of gold pusthela tradu and also screened the offence of murder. Before going to deal with the present appeals, it is to be noted that all the accused are acquitted for the charges under Sections 376(2)(g) IPC and 201 r/w 34 IPC. The only point that arises for consideration in these appeals is as to whether the prosecution has proved the guilt of all the accused for which they are convicted and sentenced by the Court below as stated supra, beyond all reasonable doubt. The learned Counsel for the appellants-accused contended that the accused were arrested on 8.5.2005 and the test identification parade was conducted on 18.6.2005 for identification of the accused by P.Ws.5 to 8, who are said to have last seen the accused in the company of the deceased and photos of accused were taken prior to the identification and that there is ample evidence to show that the accused were shown to the witnesses prior to the conducting of the test identification parade. It is also contended that the seizure of M.Os.6, 7 and 8 is suspicious and the same is based on inadmissible evidence and therefore, the conviction and the sentence imposed by the Court below are liable to be set aside. Admittedly, there is no direct evidence in the present case. The entire case rests upon the circumstantial evidence. In such a situation, the case of the prosecution has to be subjected to the tests as laid down in Padala Veera Reddy Vs. State of A.P. & Others[1] wherein the Apex Court held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (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. Now, let us examine the circumstances appearing in this case. The learned Counsel for the petitioners-appellants controverts the last seen theory, test identification parade and recovery of M.Os.6,7 and 8. He further submitted that except the above said circumstances, there is no other circumstance to connect the accused and the evidence adduced by the prosecution is very feeble in nature and further, the witnesses who identified the accused persons in the test identification parade categorically deposed in their cross-examination that they have not stated the physical features of the persons (passengers) who travelled with the deceased in the auto and that there is ample evidence to show that the photographs of the accused were published in the news paper and P.W.2 husband of the deceased categorically stated that himself, his children and P.W.8 went to the police and witnessed the accused in the police station. In view of the fact that the entire case rests upon the circumstantial evidence, we have to evaluate the evidence of the witnesses. P.W.1-Village Secretary of Grampanchayath, Medaram, deposed that on 8.1.2005 at about 3.30 p.m., village servant by name Kandi Narayana informed on telephone that he observed a dead body of a female at the outskirts of Chamanapalli village and then, he rushed to the place of incident and observed a dead body of female and found yellow colour saree, red colour blouse and sweater and he also noticed tongue of the deceased protruded out from mouth and also noticed some marks on the neck and the saree of the deceased was upto knee level. Then, he went to P.S. Dharmaram and presented a written complaint Ex.P-1. P.W.2 who is the husband of the deceased, deposed that on 7.1.2005 his wife left his house for attending a marriage of his relative at Srirama Temple at Illanthakunta and she did not return to house by evening and he enquired the sister of the deceased (P.W.8) through telephone and she informed that she accompanied upto Pedapalli with the deceased and thereafter, she started in an auto to the village and on the next day also, he enquired the sister of the deceased, but she disclosed that the deceased might have stayed at Ayyappa temple at Peddapalli for performing pooja. P.W.2 further deposed that P.W.8 informed that the deceased alone started to Godavarikhani in an auto and then he enquired his relatives and he came to Karimnagar, where his son is studying and his son informed him that the deceased has not reached Karimnagar and then, he went to attend to his duty. While so, on 10.1.2005 at about 9 a.m., a person of Rangapur informed him that a photo of a female dead body was published in a news paper and asked him to verify and then, he saw and found that the same is as that of his wife and then, he telephoned to P.S. Dharmaram and then police informed him that the dead body of the deceased was in mortuary of the Government Hospital, Karimnagar. On the same day, P.W.2 came to Karimnagar along with his children and found the dead body of his wife in the mortuary and he noticed injury on the neck and chest and on eyes. He deposed that he does not have any acquaintance with the accused. He further deposed that there are no enemies either from him and from his relatives and the deceased had worn a Pushthela Thadu when she left from the house. In his cross-examination, P.W.2 deposed that two or three months after observing the dead body of his wife, he came to know that some assailants were caught hold and then, himself, his children and P.W.8 went to P.S. Dharmaram and the police had shown those assailants. He further deposed that the police also called P.Ws.5 to 7 to the police station and they identified those assailants in the police station. He also deposed that the photographs of the accused were published in newspaper in coal city area of Godavarikhani. P.W.3, who is the son of the deceased deposed that he and his sister were at Godavarikhani along with his parents and his another brother was joined at Alphorse College and he was studying 8th class at that time. He deposed that on 7.1.2005 his mother left their house at about 7.00 am., for attending a marriage at Sreerama temple at Illanthakunta and she did not return to house up to evening and then, his father P.W.1 telephoned to P.W.8 and she told him that the deceased left from Rangapur to Godavarikhani in an auto. On the next day, his father went in search of the deceased and he returned, as she was not found. On 10.1.2005, the relatives telephoned and informed that a photo is published in a newspaper and asked them to verify and on that they observed and identified the deceased. Then, they telephoned to P.S. Dharmaram and then they went to mortuary of Govt. Hospital, Karimnagar and observed the dead body of the deceased. He deposed that he noticed an injury below the left eye, nail mark on neck and on chest and no ornaments were found on the dead body. In his cross-examination, he deposed that himself, his father, P.Ws.5 to 8 went to police Station, Dharmaram when the assailants were caught hold by the police and that the photos of the accused were published in a newspaper. P.W.4, who is also the son of the deceased deposed that about a year back, on one day, his father came to his hostel and enquired about arrival of his mother and he disclosed that his mother had not come there. He further deposed that his father telephoned him and informed that they observed dead body of his mother in a news paper and asked him to observe the news paper and his father asked him to come to Godavarikhani, and then, he accompanied his father and other relatives to Godavarikhani and observed the dead body of his mother and he noticed scratch injury on her face and he did not find any gold ornaments on her body. He deposed that he does not know the accused. P.W.5, who is said to have last seen the deceased in the company of the accused, deposed that he met the deceased in the marriage and after attending the marriage, he returned on a motor cycle along with one Marka Swamy, and that Tharamani, Rajesham, Kanaka Laxmi and some others, who attended the marriage returned to Peddapalli in two autos and they all reached Peddapalli at 8.30 or 9.00 p.m., and they all together had tea at the hotel of Peddapalli and after taking tea, the deceased wanted to go to Godavarikhani and they advised her to go in a bus and in the meantime, an auto came calling for the passengers for Godavarikhani and then, himself, Rajesham, Tharamani, Swamy gave send off to deceased when she boarded the auto. He deposed that he does not know the number of the auto, but there are words “Choodalani Undi” and in the same auto, along with driver, two more passengers were present. He deposed that he does not have any acquaintance with the driver and passengers. But, he can identify them. He deposed that police examined him and recorded his statement on 12.1.2005 and 2 or 3 months thereafter, he identified A1 to A3 in the test identification parade conducted by Judicial Officer in District Jail, Karimnagar. In the cross-examination, he deposed that he did not state any specific identity particulars of the accused to the police. He further deposed that the police informed him and also o P.Ws.7 and 8 about tracing of the accused and that P.Ws.2 and 3 and family members of P.W.2 were not present when the police called them. P.W.6 deposed in the same breathe as that of P.W.5. He further deposed that he observed the accused six months after the death of the deceased in District Jail, Karimnagar when identification parade was conducted. In the cross-examination, he deposed that he identified the accused, 20 or 25 days after he came to know about the arrest of the accused, through P.W.2. He further deposed that he did not go to the police station after arrest of the accused as he was in Mala. P.W.7 deposed in the same manner as that of P.Ws.5 and 6. Further, he deposed that he observed the accused in District Jail, Karimnagar in the presence of Judicial Officer, about 15 or 20 days after the funeral ceremony of the deceased. He deposed in his cross- examination that he did not disclose the specific identification marks of the accused to the police or to the judicial officer. He admitted that he did not identify accused No.2 in the identification parade. P.w.8, who is the sister of the deceased, also deposed in the same manner as that of P.Ws.5 to 7. Further she deposed that she observed the accused 20 days or one month after the death of the deceased in District Jail, Karimnagar. P.W.9 deposed that he is an agriculturist and about one and half year back, he went for collecting Voili Poruka to the place of incident, where he found a female dead body and he also noticed protruding of tongue from the mouth of the deceased and he informed about the presence of the dead body, to Kandi Narayana, village servant of Medaram. P.W.10, who is a village servant deposed that on information given by P.W.9, he went to the place of incident and found a female dead body lying near the fields of Devi Kishtaiah of Chamanapalli outskirts of Ippakunta area. He noticed scar on the neck of the deceased and also found the tongue of deceased protruded and then, he informed to the village Secretary by telephone. P.W.11, a Gold smith, deposed that on 9.1.2005 A1 came to him and requested for providing Rs.5000/- for his auto repair by pledging a gold pustela thadu contending that it belongs to his mother and one week thereafter, A1 again came and requested him for providing Rs.3,000/- as the amount took by him is not sufficient and then he gave Rs.3,000/- to A1 and A1 stated that he will discharge the loan within one month. But, he did not turn up. He deposed that the police seized the gold pusthela tradu. P.W.12, who is a mediator to inquest panchanama deposed that the police held inquest over the dead body of a female in his presence and he noticed scar mark on the neck of the deceased and that the police prepared a rough sketch of scene of offence and Ex.P-3 is crime details form prepared by the police and Ex.P-4 is the sketch map of scene of offence and in his presence, the police seized glass pieces, spectacles and one pinnies cap of beer bottle and one screw of ear stud and one button of sweater. P.W.13, who is a witness to the seizure of gold ornament, deposed that when he was proceeding to Metpally, C.I. of police called him and at that time, A1 and A2 were present in the custody of the police and a panchanama was scribed and the Peddapalli C.I. collected gold from the house of Ramulu. He voluntarily deposed that the gold is weighing 25 grams. P.W.14 deposed that when he went to the Bus stand of Godavarikhani to go to his village, police called him to auto stand near the bus stand and there, he found A1 and A2 in the custody of police. He further deposed that the police seized the shirt, rod and auto shown by A2 in his presence under the cover of panchanama. He further deposed that deceased is the elder sister of his wife and his wife also gave evidence. In this cross-examination, he deposed that accused Nos.1 to 3 are shown in T.V. and published in the newspaper and that P.Ws. 5 to 7 also observed A1 to A3 in the newspaper and also in TV. P.W.15 one of the panch witnesses to the inquest panchanama, deposed that he observed the dead body of a female and noticed the saree and petty coat up to the knee level and also noticed a black mark on the neck of the deceased. He further deposed that he noticed scratch injuries on the left toes and broken yellow colour bangle pieces and screw of year stud and spectacles and a nut. P.W.16 is the doctor, who examined A1 to A3 and certified that they are potent. P.W.17 is the doctor, who conducted autopsy over the dead body of the deceased along with P.W.19. He opined that the deceased died due to asphyxia and strangulation. P.W.18 is the Magistrate, who conducted test identification parade. He deposed that on 18.6.2005 he went to the District Jail, Karimnagar and recorded the statements of P.Ws.5, 6, 7, 8 and they stated that they can identify the accused and all of them identified A1 to A3. He further deposed that he enquired with A1 to A3 and they stated that their photographs were taken and they have shown to the witnesses prior to Test Identification Parade. P.W.19, who conducted autopsy over the dead body of the deceased along with P.W.17, opined that the death is due to asphyxia with strangulation. P.W.20, is the S.I. of police who received the complaint and registered a case. P.W.21 is a photographer who took photographs. P.W.22 is the Inspector of Police, P.S., Jagtial who conducted investigation. P.W.23 is the Inspector of Police, who took up investigation from P.W.22 and filed charge sheet. To substantiate the last seen theory, the prosecution relied on the evidence of P.Ws.5 to 8, who are said to have last seen the deceased. P.Ws. 5 to 8 deposed that they witnessed the accused when the deceased boarded the auto and they identified the accused in the test identification parade. Insofar as last seen theory is concerned, P.W.14, who is none other than the husband of P.W.8, in his