Criminal Appeal No. 411 of 2019 · The High Court · 2025

Counsel for the Respondent No.2: SRI M. VIVEKANANDA REDDY' ASSISTANT PUBLIC PROSECUTOR The Court made the following: ORDER THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.411 of 2Ol9 JUDGMENT: (Per Hon'ble Sri Justice K.Surender) This Criminal Appeal is filed by the appellant/accused, aggrieved by the judgment and sentence dated O7.O6.2079 in S.C.No.6 of 2017, on the lile of the I Additional Sessions Judge, Warangal, whereby the appellant was convicted for the offences punishable under Sections 302 and 201 of IPC.

2. Heard Smt. C.Vasundara, learned counsel for the appellant/accused, Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent No.1 - State and Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor for respondent No.2.

3. The case of the prosecution is that Chandupafla Padma (hereinafter referred to as 'the deceased) is the senior paternal aunt of the appeilant. The appellant used .to suspect that the deceased was practicing sorcery/witchcra-ft, for which reason he and his family members developed grudge against the deceased. Few months prior to the incident, the cotton crop of 2 the deceased was damaged. It is alleged that thr: appellant was responsible firr the damage of the said crop anC the deceased and PW. 1 complained to the elders in that regrlrd. PW.3 then called the apoellant and admonished him. The :rppellant again questioned the deceased about practicing sorcr:ry. Because of the suspicion of the appellant that the deceased rvas practicing sorce ry, rvhich resulted in the il1 health of their family members, th<: appeilant wanted to kill her. On 2t5i.12.2075, the deceased wer.t to her helds but did not return. Afl.er a thorough search, PW.2/son of the deceased lodged a comp,laint with the police stating that the deceased was miss ing. The said complaint was hled on 27.12.2075

4. PWs.7 rnd B are the elders in the village, PW.7 stated that on 01.01.2016, he identified MOs.1 and 12. which are a pant and a shirt belonging to the appellant. P!V.B stated that there were d:sputes between the deceased and the appellant, and he also stated that the cotton crop of the deceased was spoiled by witd pigs. However, the complaint wzrs; fi1ed against the appellant. 15 to 20 days after the incident, the deceased was not found in the vil1age. The police, while enquiring into the matter, found the clothes, which are MOs.1 zurd 2, near the 3 well belonging to one Narayana Reddy. The police brought the said clothes to the village, and PW.8 identified the clothes as those of the appellant. The appellant was caught by the Bhupalpalli Police, who took him to the Tank at Nandigama. According to the case of the prosecution, the appellant confessed that he had killed the deceased in the fields of the deceased, and her body was taken in a gunny bag to the nearby tank, which is at a distance of 1 % kilometers. He threw the dead body into the tank by t5ring a boulder along with the dead body, keeping it in the gunny bag.

5. On the basis of the dead body being found and identified as that of the deceased, the police conducted further investigation and filed a charge sheet against the appellant for committing the murder of the deceased.

6. The learned Sessions Judge found favor with the circumstantial evidence produced by the prosecution, and accordingly convicted the appellant.

7. The learned counsel appearing on behalf of the appellant would submit that none of the circumstances relied upon by the prosecution were proved beyond reasonable doubt. Further, 4 the main cor tention of the prosecution, that the dead body of the deceased was found at the instance of the appellant, is not estabiished L1r the evidence of their own witnes;s;es. Therefore, the prosecut on has failed to prove how the <1ead body was carried from ,he fields of the deceased to the tar:l,:, which is 1% kjlometers a way- The circumstances relied upon by the prosecution Co not form a complete chain, and there are missing links that remain unexplainecl

8. The lea rned counsel for the appellant r,:lied upon the judgments of the Hon'ble Supreme Court in the case of Raja Nagkar a. State oJ Chhattisgdrht, Vijend.er a. State of Delh|2 and Karakkattu Muhammed Basheer u. State of Keralas

9. The Hor'ble Supreme Court, while dealingl with the case laws referred to above, where the prosecution had failed to prove that alryone had seen the body being shifted from the place where the deceased was attacked to the place where the dead body was found, found that the case of the prosecution was not credi cle. ' lzoz+) I scc +s t 'z 1usu y o scc tzr I 2024 Lawsuit (SC) 979 5

10. The learned Additional hrbiic Prosecutor would submit that the clothes, i.e., MOs.1 and 2, belong to the appellant, ald the same were sent for FSL examination, where it was proven that they had blood stains. In fact, the dead body of the deceased was taken out from the tank at the instance of the appellant. Once the dead body was traced at the instance of the appellant, it establishes that the appellalt had exclusive knowledge of where the dead body of the deceased was located Thus, the prosecution has proven all the circumstances against the appellant.

11. The Hon'ble Supreme Court, in Sharad Bird.hichand. Sarda u. Sta'te of MaharaslrSTa+, laid down the principles regarding the acceptance of circumstantial evidence and the basis for recording conviction in cases involving circumstantial evidence, which read as under:- " l. The circumstalces 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 explained on arry other '1ua+;+scctto 6 h'rpothesis except grrilty; that the accu.sed is 3 The circumstances should be of a conclusive nature and tendency; 4 h'ipothesis except the one to be proved; and They should exclude every prossible 5 There must be a chain of evicte:nce so complete as not to leave any rea:;onable gr ound for the conclusion consistent q'ith the ir nocence of the accused and must show that ir all human probability, the act must have br:en done by the accused."

12. The clcthes of the appellant, i.e., MOs. t and 2, were found by the police while searching for the der:eased on the basis of the complaint filed by the son of the deceased on

27.12.2015. l)W.7 states that he identifred the clothes as those of the appelllnt on 0f .01.20i6. PW.8 is anoth()r witness who speaks abou , the police hnding the clothes ol' the appellant near the well belonging to one Narayana Reddy. .{dmittedly, the clothes were .-iot found at the instance of the appellant. Though it is the case of the prosecution that the aLppellant was absconding, irorvever, it is for the prosecution to prove that the clothes belor.g to the appellant. The basis o e which PW.7 identified thr: clothes as those of the appellant was not explained. In the cross-examination of PW.7 , he' admitted that MOs.1 and 2 were branded clothes and that srimilar clothes, 7 like MOs.l and 2 would be avaiiable in the market everywhere. It is admitted that same clothes would be avaiiabie in the open market. The prosecution ought to have established that the clothes, MOs.l and 2, were belonged to the appellant by adducing scientihc evidence.

13. MOs.1 and 2 were not subjected to any DNA examination to conclude that the clothes belong to the appellalt. It is al open recovery and the case of the prosecution cannot be believed unless it is established that the clothes belong to the appellant.

14. The main circumstance that the prosecution relied upon is the recovery of the dead body of the deceased at the instance of the appellant. The prosecution claims that the appellant took the police to the tank where the dead body was fished out. i5. The evidence of PWs.2, 3, 8, and 14 would be relevant. PW.2 stated tinat "it i-s true that ttte police came to Nandigama Village on 3O. 12.2015 also. It is true the police took the appellant to the police station on 31.12.2O15". 8

16. PW.3 stated that "the accused also came' along u,tith us while seorching the dead body of the decease'7. The accused also came along tuith us and police on 31.12.20-'11 for searchtng the dead bodq of the deceased. The poltce brought the accused to Chuttukunta tank on 01.01.2O16 after half an hour after mgself reaching ther:"

17. PW.B s ated that " the police brought the alc.,oellant around 1O.30 or 1 1.00 A.M. on that day. It i.s true PWs.l ,znd 2 reached the said tank around 9.O0 A.M. on that daAi'. PW. 14 stated tltat "uLe straight aLUaA ptoceeded to the kunta (tank). Bg the time theg reoched there, the uillagers gathered. Tfut jeeps of SubJnspector of Police and Inspector of PoLice startea at once and reached the said kunta (tonk) at the same time. 1-|rc appeLLant uas brought bg the ,oolice in their uehicle to kunta (tank)"

18. As seer from the evidence of the witnesse:s , it is evident that by the time the police reached the scene c,f the offence, where the derrd body of the deceased was found, villagers were already present. Therefore, it cannot be said that r:he dead body of the deceast:d was discovered at the instance oi the appellant. 9 In fact, Ex. D I was also marked in the cross-examination of PW.8. In Ex.Dl, PW.8 stated that the dead body of the deceased was floating in the water body (kunta). t9 The Hon'ble Supreme Court, in the case of Raia Nagkar (cited supra), held as follows: " 1 4. tJndisputedlg, the deod bodg uas found much prbr to the recording of the Memorandum of the appeLlant under Section 27 of the Euidence Act. Therefore, onlg thot part of the stotement which leads to recouery of the dagger and the ickshaw uLould be releuant.

15. The Propertg Seiz'ure Memo uould show that the dagger uas seized from a place occessible to one and all. According to the prosecution, the incident took place on 21st October, 2OO9 and the recouery utas made on 25th October, 2OO9.

16. As Per the FSL rePort, the blood stains found on the dagger uere of human bLood' Hotueuer, the FSL report does not shotD that the blood found on the dagger was of the blood group of the deceo-sed. Aport from that, euen the serological report is not auailable.

17. Insofor os the recouery of ickshaut is concemed., it b again from an open place accessible to one ottd oil. It is diffrcult to belieue that the ousner of the icksho,u-t would remain silent IO wht rt hi-s rickshanu LDas missing for 3-4 aags. As suclr. the said recouery uould a,lso not be n:lzuant.

18. Another circumstance relied on bg the Tio' Judge Ls tuith regard to recouery o.f blood- stal)re.1 clothes on a Memorandum of the appsllan1. Thc .said clothes were recouered from the lrcuse of the rqpellant s sister-in-latu. The alleged brcident is qt 2 l st October 2OO9, whereas the recou,:t! uas mee o on 2 Sth October, 2OO9. It is difiicult to belicue that a person committing the cim,z would kee:1t tlre cLothes in the house of his sis ter-in -iau_t for four tla.gs. "

20. Learne<l counsel for the appellant reli,rd upon the judgment of the Hon'ble Supreme Court in the case of Vijend.et (cited supra). rvherein it was held as follows: "l7. Another elementary statutor! breoch uthi<'h u,te notice in record-ing the euidenc,z of the abolc Ltitnesses i^s thot of Section 27 cf the Euicla nce AcL. Euidence was led through the aboue thre,' police a/ifnesses tltat in consequence of infot rrttttion receiued from the three appelltnts on Junc 30, 1992 theg discouered the pLace wju:re the dectrl bodg of Khurshid was throu.)n. As alread_g notic t'd, the dead bodg of Khurshid was recouered ort ..\tn.e 27, 1992 and therefore the question of discottery of the place u.there it uas thrown thertafter could not orbe. [Jnder Section 2/ of the Euidtnce Act if an information giuen by the accusecl lecLds to the dbcouery of a fact utttich is 11 the direct outcome of suclt infortnation then onLy it utould be euidence but uLhen the fact has alreadg been discouered as in the instant case the euidence could not be led in respect thereof." 2l . The exception to the inadmissibility of the confession made by an accused while in police custody is the discovery of the fact at the instance of the accused, which is admissible under Section 27 of the Indial Evidence Act. Once any fact was already discovered or known to another person or the police even before the accused had informed, such knowledge of a fact would not faIl within the 'discovery of a fact' under Section 27 of the Indian Evidence Act, as observed by the Hon'ble Supreme Court in the above decisions.

22. Admittedly, the blood stains were found in the fields of the deceased, and a panchanama was conducted in the fields of the deceased. It is an admitted fact that the body was found in the water tank (kunta), which was roughly 1% kilometers away from the field of the deceased. The prosecution has not explained as to how the body was carried to the tank, which is at a distance of 1% kilometers. 12

23. The Hc,n'ble Supreme Court, in the case of Karakkattu Muhammed Basheer (cited supra), held as follo',vs: "27. As per the case of prosecution, the time of death of the deceased Gouri has g'ot to be afte. 1 1:3O PM, as it hos been l'teld bg the courts Lhat it is the Appetlant alone u.tho had conLmilted, her murd"er. Tlrc bodg obuiouslg wouLd houe been disposed of pior to 5 AM on 17.O8.1989. It ho.s come on record that the distonce betu.teen the hou:e of Accused No. 2 and the paddg ftelT where the bodg tuos found is about 1 KM; in oetween there is a sawmill which runs 24 hours. If lLt.e case of tne prosecution i.s to be occepted, accortTing to whi:h the AppellcLnt had carried the dead L,odA of the l-eceased Gouri on his shoulder from the house of I ccused No. O2 to the paddg ftelds, :;omeone tuoulcl hcLue most likelg seen him on tlte' wag, especiallg u-then there lras a ntnning mill in betl,.)een from uhere the Appellont is said t,c haue cros.sed. Thi:; further raises a doubt u-.tith rp-qard to the :.redibility of the case as has been proj<tt:ted bg the prosecution."

24. As rightly argued by the learned cou,nsel for the appellant, th: prosecution ought to have proved the manner in which the bc,dy was shifted from the place wh€rre the incident took place to the place where the dead body was found. In the absence of any explalation or evidence from the prosecution as 13 to how the body was shifted, it creates any amount of doubt regarding the version of the prosecution. Merely because blood stains were found at the scene and the alleged clothes belonging to the appellant were found does not provide basis to conclude that the blood on the clothes MOs.1 and 2 was that of the deceased. Admittedty, there was no DNA examination conducted to identify that the dead body was that of the deceased, nor was any DNA test conducted on the wearing apparel of the appellant. PW. 1 1, in his cross-examination, \ stated that the dead body was in a decomposed state and beyond recognition.

25. As rightly contended by the learned counsel for the appellant, when the dead body was already found, the exception under Section 27 of the Indial Evidence Act will not work in favour of the prosecution. In view of the above discussion, since the prosecution failed to prove that the dead body of the deceased was discovered at the instance of the appellant or that the clothes MOs.l artd 2 belong to the appellant, the major links in the case of the prosecution are missing. For the said reasons, the benefit of doubt is extended to the appellant. t4

26. Accordingly, this appeal is allowed by sr:tting aside the judgment dated 07.06.2O19 in S.C.No.6 of 2017, on the file of I A(lditional Sessions Judge, 't\ a,rangal. The appeilant/ac:used is acquitted for the said.. olft:nces, and he shal1 be set rt liberty if he is not required in any other cases. The fine amount paid, if any, sha1l be returned. Miscell eneous Petitions, pencling if an.y. sha1l stand closed. //TRUE COPY' SD/- K. SRINIVASA RAO JOINT REGISTRAR ..5 To, 0 1. The I Addition;al Sessions Judge, Warangal (with recorcs) 2. The Additronal Judicial Magistrate of First Class, parkal,r/y'arangal District. 3. The Superinteldent, Central Prison, Cherlapally Jail, tMr:dchal Malkajgiri ECTION OFFICER District (By Speed Post)

4. The lnspector of Police, Bhupalapally police Station, Bhupalapally Mandal. 5. Two CCs to th: Additional Public Prosecutor, State of Telangana, High Court Buildings at Hvderabad[OUT] Buildings at Hvderabad[OUT]

6. Two CCs to th,: Assistant Public Prosecutor, State of Terlangana, High Court 7. One CC to Smt. C. Vasundhara, Advocate tOpUCl B. Two CD Copies Plp/gh HIGH COURT DATED:2410412025 JUDGMENT CRLA.No.41'l of 2019 ISIk\1 rA 'o k -T t'. I2 I0 A 2m5 (.--' ,nl q P -2--- .t J t_) I I \ ALLOWING THE CRIMINAL APPEAL 1s 1A €