HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.No. 582 of 2007 Date: 20-10-2010 Between Sheri Papi Reddy ……….. Appellant and State of A.P. …….. Respondent HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO Crl.A.No. 582 of 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) This Appeal is directed against the judgment, dated 07-03-2007 passed in S.C.No.273 of 2003 on the file of the Principal Sessions Judge, Medak at Sangareddy (hereinafter referred to as ‘learned Sessions Judge), whereby and whereunder the appellant- accused was convicted for the offences under Sections 302 and 201 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default to suffer simple imprisonment for six months for the offence under Section 302 of IPC, and to undergo rigorous imprisonment for one year and to pay fine of Rs.100/-, in default to suffer simple imprisonment for one month for the offence under Section 201 of IPC. Both the sentences were directed to run concurrently. 2. The brief facts of the case are as follows: As per the allegations of the charge sheet, on 10-12-2002 at 12-00 hours, one Mohd. Ayub Khan lodged a complaint in the Police Station at Banjara Hills, Hyderabad stating that his brother-in-law, Mohd. Ghouse Khan (deceased) was working as a Driver on his lorry bearing No.AP-12/T-8803 for the last one year and transporting goods in the States of Andhra Pradesh and Karnataka through M/s. Saibaba Transport, Langer House, Ring Road, Hyderabad; that on 21-10-2002, the deceased along with the accused (another driver of the same lorry) went to Bhagalkot in the said lorry with sand load and in return journey, they got the load of granite stone from M/s. Pavan Granite Industries, Ilkal, for delivery at M/s. Archana Marbles and Sumitra Granites, Kamalapuri Colony, Hyderabad; that on 26-10-2002 at 5-00 AM, the accused and deceased were found with the said lorry with granite load at Chevella when they stopped the lorry, as there was ‘no entry’ into the city limits of Hyderabad and that on 26-10-2002 in the morning hours, they unloaded the said granite stone load at Kamalapuri Colony, Hyderabad, and since then the deceased and the said lorry have been found missing and therefore, the accused was suspected. 3. Basing on the complaint, the Police, Banjara Hills Police Station, registered a ‘man missing’ case in Crime No.804/2002 for investigation. The Sub-Inspector of Police, Banjara Hills Police Station, recorded the statements of the witnesses and, in view of the suspicion reposed on the accused, they apprehended the accused on 13-12-2002 and after altering the Section of law to the offences under Sections 302, 379 and 201 of IPC, handed over the investigation to the Inspector of Police, who arrested the accused and recorded his confessional statement in the presence of two mediators. In his confession before the Inspector of Police, the accused stated that impersonating himself as Ghouse Khan (deceased), he took the lorry to Visakhapatnam, brought the load of iron coils to Hyderabad, though the same was to be unloaded in Mumbai, and on 13-11-2002 himself and Ghouse Khan (deceased) came to Patancheru, sold away the said iron coils to one Muneer at Patancheru and Ghouse Khan (deceased) took away his share of Rs.40,000/- and when the accused demanded for his share of Rs.20,000/-, a dispute arose between the accused and deceased. He further confessed that in view of the dispute that ensued between them during the intervening night of 13/14-11-2002, the accused got annoyed on the deceased and, after going into the cabin of the lorry, when it was stopped in front of Rim Zim Dhabha Hotel, which is by the side of National Highway No.9 in the limits of village Rudraram, the accused hit on the head of the deceased with iron jakie rod and thereby caused his murder. The accused further stated in his confession statement that he thrown the dead body of the deceased into an oil refinery tank. 4. At the instance of the accused, the police recovered the dead body of the deceased under the cover of panchanama in the presence of mediators and the autopsy revealed that the death of the deceased was due to shock and injury on the head. Police seized the said lorry at the instance of the accused and also seized a scooter bearing No.AP-23/B-6918, which was purchased by the accused with the stolen money, and also seized net cash of Rs.400/- from him. On the point of jurisdiction, the C.D. file in Crime No.804 of 2002 of Banjara Hills Police Station was sent to Patancheru Police Station and basing on the same, the Sub-Inspector of Police, Patancheru Police Station, registered a case in Crime No.13 of 2003 and, after conducting the investigation, the Inspector of Police, Patancheru Police Station, filed the charge sheet against the accused for the offences punishable under Sections 302, 379 and 201 of IPC. The accused denied the charges levelled against him and claimed to be tried. 5. The prosecution, in order to prove the guilt of the accused, examined PWs.1 to 11 and got marked Exs.P-1 to P-24. On defense side, no oral or documentary evidence was adduced. 6. The learned Sessions Judge, after considering the oral and documentary evidence, found the accused guilty of the offences under Sections 302 and 201 of IPC and accordingly, convicted and sentenced him as stated above. 7. The entire case of the prosecution laid on circumstantial evidence. In a case of circumstantial evidence, the Court should scrutinize the evidence on the following principles: 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may’ be established; 2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground from the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the Accused. 8. The learned Sessions Judge relied on the following circumstances: (i) The deceased was last seen along with the accused on 25-10-2002; (ii) On the basis of the confession of the accused, the Investigating Officer recovered the dead body of the deceased, the lorry and also material objects like knife and clothes worn by the deceased; and (iii) The entire confession of the accused. 9. This Court perused the entire judgment and the evidence adduced by the prosecution. The evidence adduced in connection with “last seen theory” is that PW-1 saw the deceased in the company of the accused on 25-10-2002, whereas the complaint was lodged by PW-1 on 10-12-2002. There is no explanation by the prosecution for such an inordinate delay in lodging the complaint when a person was found missing approximately for a period of two months. The Investigating Officer, on the basis of suspicion, arrested the accused and recorded his confession statement and basing on the same, recovered the dead body of the deceased, which was concealed in a tanker. The learned Sessions Judge relied on that piece of evidence. There is no dispute that under Section 27 of the Indian Evidence Act, if a recovery, which is well within the knowledge of the accused, is made, that can be relied upon if it is corroborated by the other circumstances. But, in the present case, as rightly pointed out by the learned senior counsel, even though the dead body was recovered, there is no evidence to show that the dead body recovered is that of the person found missing in Ex.P-1, complaint, from 25-10-2002. Either the relatives or the friends of the deceased had not identified the dead body. There is no explanation by the prosecution as to why they have not examined any witness to prove the fact that the deceased is the same person mentioned in Ex.P-1, complaint, for which a case was registered in the caption of ‘man missing’. When there is no connecting material adduced by the prosecution to establish the fact that the dead body recovered and the person found missing is one and the same, it is highly unsafe to conclude that the dead body recovered, on the basis of the confession, is that of the person found missing in Ex.P-1, complaint, and further the learned Sessions Judge relied on the confession of the accused even taking into consideration the portions, which are in favour of the accused. 10. The date of occurrence is on 13/14-11-2002. If the prosecution wants this Court to rely upon the evidence of PW-1 and the confession of the accused, according to PW-1, the accused and deceased were last seen together on 25-10-2002 and as per the confession of the accused, the occurrence was on 13/14-11-2002. It is the duty of the prosecution to explain the whereabouts of the deceased and accused in between 25-10-2002 and 13/14-11-2002, but failed to do so, and further there is no connecting material to establish that the accused is the person who committed the crime. More interestingly, as per the evidence adduced by the prosecution, the lorry was also found missing from 25-10-2002, which was given on lease base to Saibaba Travels, but there is no complaint to the effect that the said lorry was found missing. In the absence of any such complaint, it cannot be construed that the said lorry was taken by the accused. Further, on perusal of the records, it reveals that a different story has been given by the accused in the confession. It is most unfortunate to note that the learned Sessions Judge has marked the entire confession of the accused as exhibit and relied on the same. It is well settled proposition of law that in a confession statement, the portion, which leads to recovery and which is admissible under Section 27 of the Evidence Act, alone can be marked. Whereas the learned Sessions Judge marked the entire confession statement of the accused and further relied on the same to convict him. We are of the view that a conviction cannot be based on mere confession, which is a piece of evidence but inadmissible in a Court of law, when the same is not corroborated by the other circumstances. 11. In view of the above circumstances, the prosecution miserably failed to prove the connection of the accused with the crime. The learned Sessions Judge passed the judgment on mere surmises and conjectures that the accused is the person who committed the crime. Therefore, the judgment passed by the learned Sessions Judge cannot sustain and the same is liable to be set aside. 12. In the result, the Criminal Appeal is allowed. The convictions and sentences recorded against the appellant- accused for the offences punishable under Sections 302 and 201 of IPC by the Principal Sessions Judge, Medak at Sangareddy, vide judgment, dated 07-03-2007 in S.C.No.273 of 2003, are hereby set aside and he is acquitted of the said charges. He shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellant-accused shall be refunded to him. ________________ A. GOPAL REDDY, J ______________ RAJA ELANGO, J Date: 20-10-2010 YCR