The case is of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtral, the Honble Supreme Court held as follows

The State of Telangana, Rep. by the Public Prosecutor. High Court at Hyderabad. ...RESPODENTS Counsel for the Appellant No.1&2 : Y.V.S.S. Siva Sarma Counsel for the Respondent: Public Prosecutor The Court delivered the following JUDGMENT: HON'BLE SRI WSTICE K.SUREIIDER HON'BLE SRI JUSTICE ANIL KT'MAR JUKANTI CRIMINAL APPEAL No.251 of 2Ol7 JUDGMEIIT:, Qter Hon'ble Si Jusltce K.Surender) 1. The appellants, who are arrayed as A1 and A2, were convicted for the murder of 8 year old boy and sentenced to undergo life imprisonment for the offence under Section 3O2 r/w 34 of IPC and they were also convicted for the offence under Section 3(2)(v) of SCs/STs (POA) Act, 1989 vide judgment in Spl. S.C.No.S3 of 2013 dated 23.01.2017 and 25.01.2017 passed by the Special Judge- cum- VII Additional District and Sessions Judge at Mahabubnagar. Aggrieved by the sarne, present appeal is filed.

2. According to the prosecution case, on 26.1O.2OL1, the mother of the victim boy P.W.l lodged complaint Ex.Pl. In the said complaint on which P.W. 1 put her right hand ttrumb impression, it is stated that her son who was aged 8 years was earlier joined in Bharat Sai (Deaf and Dumb) residential school located at Telangana Chowrastha, Mahabubnagar. On 26.10.2O11 at 8.3O a.m, she received phone call from A1 that some unknown persons cut the throat of her son resulting in his death. P.W. 1 and others went to ? the hostel and found the deceased in a pool of blood. In the said complaint, PW1 expressed suspicion that A'1 and A2 were \ responsible for the death of the victim boy. Complaint was received by P.W. 10, who registered the crime. P.W. 10, then went to the scene of offence and examined the scene. In the presence of P.W.6 and another, panchanama was conducted. The statements of P.W 1 mother, PW2 relative of PW1 and PW6 also a relative of PWl, were recorded. After concluding inquest proceedings, the dead body was sent for postmortem examination. P.W.8 Doctor, conducted postmortem examination and found that there was incision over neck which was 5 inches in length. P.W.8 opined that both injuries could be caused by sharp edged instrument. P.W.8, however stated that he cannot say the exact weapon used in causing injuries.

3. P.W. 12, according to the prosecution, is the resident of Koilkonda Village. According to the prosecution, 42 confessed before P.W.l2 that both A1 and A2 murdered the deceased boy.

4. P.W. 13 took up investigation from P.W. 11. On O4.ll.2OLl, A2 was apprehended. Her statement was recorded. Pursuant to her confession, her blood stained saree (MO 1) was recovered. / 3 Thereafter, P.W. 13 went to the house of A1 and arrested him' Pursuant to his confession, blood stained shirt was seizrd. The wearing apparel that were seized from Al and A2 were sent for FSL analysis. Under Ex.P|9/FSL report, it was opined that human blood was found with blood grouP A.

5. The Investigating Oflicer further collected caste certificate of the deceased boy and thereafter filed charge sheet.

6. Learned Sessions Judge examined P.Ws.l to 3 and marked Exs.Pl to P2O. MOl is the blood stained saree of A2, MO2 is the blood stained shirt of A1, MO3 is the blade which was allegedly used in slitting throat of the boy. Learned Sessions Judge convicted the appellants on the basis of circumstantial evidence.

7. P.W.1 who is the mother of the victim boy lodged complaint Ex.Pl stating that her deceased son of eight year-s was found in the hostel in a pool of blood with cut injuries to his throat. On

26.10.20L1, she filed complaint expressing suspicion that A'1 and A2 were responsible for the death. The witness was declared hostile after P.W. 1 was cross-examined by the counsel on record. During the course of cross-examination, P.W. 1 stated that she does not 4 have acquaintance with A1 and A2 and she did not see them and she did not go to school for admitting her son. P.W. 1 also denied having knowledge whether A1 and A2 were the perpetrators and running the school. Iearned Public Prosecutor cross-examined P.W. 1 and suggested that on account of the compromise, she stated false, which suggestion was denied. 8: P.W.2 is the paternal uncle of the deceased, who turned hostile to the prosecution case. P.w.3 stated that Bharat sai (Deaf and Dumb) school was in the residential area and, A2 was working in the school as attender. On one day, around 5.30 a.m, she went to the shop of P.W.3 and informed that a boy fell in the hostel and sustained injuries and she had to intimate to the school management. P.W.3, then gave his mobile phone and asked her to contact her sir. However, she could not talk to him. Thereafter, she went away. During the cross-examination, p.W.3 admitted that he does not know about the school management of Bharat Sai School. P.W.4, who is a neighbor of the school, was declared hostile to the prosecution case. 5

9. P.W.5 is the VRO of Yedira village, who acted as confession panch. According to him, Al and A2 confessed to committing the offence and in their presence, saree was seized from ,A'2 and shirt from A1. P.W.6 is the paternal uncle of the deceased boy, who acted as a witness to the scene of offence panchanama and inquest proceedings. P.W.7 is the MRO who gave caste certilicate that the deceased boy belongs to Lambada community which is Ex.P7.

10. P.W.8 was examined to prove postmortem examination report given by Dr.Madhavi, who conducted postmortem of the body of the deceased boy. P.W.8 deposed basing on the contents of ExP8 PME report. During cross-examination, PW8 stated that he cannot say the exact weapon used 1n causing fatal injury as mentioned in Ex.P8.

11. P.W.9 was working AS Special Deputy Collector, who gave caste certi{icate of A2 that she belongs to BC category. P.W. lo/Inspector o[ Police registered FIR and examined witnesses P.Ws.l, 2 and others. The investigation was then handed over by P.W. 10 to P.W. I 1. P.W. I I handed over investigation to P.W. 13, who concluded investigation and liled charge sheet. 6

12. The defence of the appellants is that they have nothing to do with the premises where the incident has taken place. The police had not effected any seizures, particularly MOs 1 and 2 and they were falsely implicated.

13. The case is of circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtral, the Honble Supreme Court held as follows: "153. A close analysis of this decision utoul.d. shou that ttrc follouing conditions must be fulflled before a case against an amtsed. can be said to be fullg established: (1) the circumstances from tahich tle conciasbn of gailt b to be drautn should be fully established. It may be noted lere tlat this Court indicated tLat the circllntstances concem.ed "must or sl:.rlul.d" and rwt "mog be" established. TLere is not onlg a grammatical but a legal distinction befiieen "mag be proued" and 'must be or stvtuld be proued" as utos leld bg tljs C.ourt in Shiuaji Sahabrao Bobade u. State of Maharashtra ft1973) 2 SCC 793 : 1973 SCC pfl1033 : 1973 Crl IJ 17831 where the obseruations uere made: [SCC para 19, p. 8O7: scc Qd p. loal "C..ertainly, it is a pimary princtple that the a.eused. must be and not merely may be gtilty before a court @n onvict and the menlal dktance between 'mag be' and 'must be' is long and diuides uague anjectures from sure conclusions. " (2) the facts so established should be cr.r;sistenl onlg uith th.e hApothesis of the guilt of the acansed, tlwt is to sag, tleg should not be explainable on any other hypothesis except tlnt tle acatsed is SuiltC, (3) tle circumstances shoul.d be of a ancfusiue twdtre and tendencg, (4) theg should exclude euery possible hgpothesis ex@pt tlle one to be proued, '(1984) 4 scc 116 7 (5) tlere must be a chain of euidence so conq)Iete os twt to leaue ang reasonable ground for th.e conclusion consistenf urith the innocerrce of tle accu,sed and must shou-t thtt in all human probabilitg the act nust lnue been done bg tle acansed."

14. The circumstances relied on by the prosecution are: i) complaint filed by P.W.1 stating that the dead body was found with the boy's throat slit. ii) The dead body was found in the hostel premises of Bharat Sai (Deaf and Dumb) School. iii) Appellalts were arrested and at their instance, blood stained saree and shirt were recovered. The said saree and shirt when sent for FSL examination revealed that the stains on the wearing apparel was human blood with blood group A. iv) MO3, which is the blade allegedly used was also recovered at the instance of the appellants and FSL report showed that MO3 had human blood with group A. v) Since the dead body was found in the premises of the hostel, it is for A1 to state the circumstances under which the death occurred, and he failed to do so. 8

15. Firstly, none of the Investigating Ofhcers have spoken about co11ectingdocumentspertainingtoBharatSai(DeafandDumb) School and that it was being run by A,1. P.W. 1, the mother of the deceased boy in her cross-examination admitted that she had never seen the appellants in the school where the boy died. In fact, she also stated that she did not go to the school to admit her son. There are no other witnesses who were examined to state that the hostel was being run by Al and ,A,2 was working in the said hostel. Though PW3 stated in chief examination that A,2 was working as an attender in the school, however during cross examination, pW3 admitted that he had no knowledge about ,4,2 prior to the incident.

16. The Investigating Officers/P.Ws.10, 11 and 13 did not collect any evidence to show that A1 was running the hostel. L7. The other evidence relied on by the prosecution is the extrajudicial confession made to P.W. 12. However, P.W. 12 completely turned hostile to the prosecution case arid denied having worked in the hostel at any point of time or A,2 approaching him.

18. The prosecution relied on the seizure of MO3 as the instrument used to slit throat of the deceased boy. The postmortem Doctor, who conducted postmortem examination was not examined before the court. P.w.8 was examined to mark the postmortem report given by Dr.Madhavi, who conducted postmortem examination. However, pwg stated that he did not have knowledge about the instrument that was used to cause injury on the deceased boy.

19. The blood stained shirt of the A1 and blood stained saree of 42 were seized. However, no one was examined from the FSL. Ex.p19, r. which is the FSL report was marked by the Investigating Officer/P.W. 13 during trial. Though, blood group A was found on rf the wearing apparel ofthe deceased and also wearing apparel seized from the appellants, the said finding cannot form basis to find the appellants as the persons who had committed murder of ttre deceased boy. No DNA testing was done to show that the blood found on the wearing apparel of Mol and Mo2 beronged to trre, deceased boy. As already discussed, there is no proof that appellants were running schoor and they were present on the day or on the previous day of the incident. suspicion, however strong, cannot form basis to convict an accused. The only ci.rcumstance of 10 blood being found on the wearing apparel, cannot be made basis to sustain conviction.

20. In the result, the judgment of trial Court in Spl.S.c.No.53 of 2013 dated 23.01.2017 and 25.O1.2017 passed by the trial Court is set aside and the appellants are acquitted. Both the appellants are on bail. Their baii bonds shalt stand discharged.

21. Criminal Appeal is allowed. \ To, Sd/- C.V. MALLIKARJUNA VARMA JOINT GIST //TRUE COPY// SE OFFICER

1. The Special Sessions Judge-cum-Vll Additional District and Sessions Judge at Mahabubnagar. (with records, if any)

2. The Judicial Magistrate of First Class, Mahabubnagar 3. The Superintendent, Central Prison, Cherlapalli 4. The Superintendent, Special Prison for Women, Chenchalguda, Hyderabad 5. The Station House Officer, ll-Town Police Station, Mahabubnagar 6. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad. [OUT]

7. One CC to Sri Y.V.S.S. Siva Sarma, Advocate [OPUC] 8. Two CD Copies VIVgh @k / HIGH GOURT DATED: 2810112025 S TA rC 1 I FEB u075 ). ,} .> s PATc I f c $,, JUDGMENT GRLA.No.251 of 2017 ALLOWING THE APPEAL