The High Court · 2025

Counsel for the Appellant: Sri P. Prabhakar Reddy Counsel for the Respondent: Sri Arun Kumar Dodla, Additional Public Prosecutor Sri M. Vivekananda Reddy, Assistant Public Prosecutor The Court delivered the following: JUDGMENT THE HONOURABLE SRI JI'STICE K.SURENDER AND THE HONOURABLE SRI JTISTICE E'V'VENUGOPAL CRIMINAL APPEAL No.2699 of2OLB JUDGMENT: (per The Hon'ble Sn Justice K SURENDER) This aPPeal is hled bY the appellant/Al, aggri':ved bY the Metropolitan Sessions Judge' conviction recorded bY the Hyderabad, in S.C.No'04 of 2018 dated 11'09'2018' convicting the appellant under Section 302 read with Section 34 of IPC' and sentencing him to undergo life imprisonment and to llay a fine of Rs.5OO/- for the offence under Section 302 of IPC' 2 Heard learned counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor' Sri M'Vivekananda Public Prosecutor appearing for the Reddy, learned Assistant respondent-State.

3. PW.l lodged an English typed complaint with the Police on 17.04.2017 at 10.00 A'M' In the complaint' he narrated that his brother Syed Omed Ali (deceased)' was a rickshaw puller and on 16.04.2017 at 16.O0 hours, he saw his brother in zm auto going with the appellalt and two others' When PW' 1 q''restioned the deceased as to where they were all going' the decezrsed informed him that they were going to+tra Toddy Compound at. Saroornagar' 2 The next day morning at 9.OO A.M., PW.1 received a phone call from I Madannapet Police saying that the deceased was found near a graveyard, Madannapet. PW. 1 went there, identified the dead body, and lodged complaint-Ex.P1.

4. PW.2 is the person who went along with the appellant, A2, and the deceased to consume Toddy at Saroornagar. All of them consumed Toddy in the compound. PW.2 returned to his house at

8.00 p.m. from the Toddy shop, On the next day, he was informed around 3.O0 P.M. about the death of the deceased

5. PW.3 is the Pan shop owner, who states that on 16.04.2017, he saw the deceased along with appellant and A2 at 10.30 - 10.45 p.m. Al1 of them went to his pan shop, purchased two pans, and went away. The appellant was drirring the auto. On 18.04.2O18, Saidabad Police took the appellant and A2 and went to his shop, PW.3 identified them as the persons who had come on 16.04.2018 to purchase Pans. Police also showed the photograph of the deceased, and PW.3 identihed the deceased and informed the Police that he saw the deceased along with A1 and A2 on 16.04.2018

6. PW.4 is the Toddy shop cashier, who states that around 9.30 P.M. the appellalt purchased four toddy packets and paid Rs.lOO/-. '----------------E --=--&e 3 I I They consumed toddy and left' However , PW.4 did n()t identifY the deceased as the person who came to the Toddy shop 7. PW-5 is the person who is running a {ish s;hop at Shiva Shakthi Bar, Shankeshwar Bazar' Saroornagar' According to him' on 16.04.2017, around l130 P'M'' four persons went to the Bar' and while two persons sat at a table' t\Po persons came to the counter and purchased two pieces of fried' frsh' T\ro rlays thereafter' the Police enquired with PW'5 about the appellant and another purchasing fish' However , the Police did not show the photograph of the deceased to confirm whether the deceased a,:companied the appellant and A2 at 11'30 P'M' at the Bar' 8. PW.6 is the scene of offence panch' According to him' MOs'1 to 7 were seized during the scene of offence proceedings' g. PW.7 is the witness to the inquest proceedings' 10. PW-8 is the panch for the confession of A1' Pursuant to the confession of A1, MOs'10 and 11' which are the pant and shirt of A1, were seized' MOs' 13 and 14 are the jeans shirt and pant of A2' 11. PW-9 is the Postmortem doctor who found 17 injuries on the body of the deceased' According to PW'9' the czruse of death was due to throttling associated with multiple injuries. pw.9 a_lso states '\ -*1 that there was evidence suggestive of violation of the anal orihce. -

12. The case of the prosecution is totally based on circumstantial evidence. According to the prosecution, pW. t had seen the appellant, A2, and the deceased in an Auto at 9.OO p.M, pW.2 had seen them at 8.00 P.M. PW.3 had seen them at 10.30-10.45 p.M., and PW.4 had seen them at 9.30 P.M. The last person who saw the appellant was PW.S. PW.5 had seen the appellant at 11.30 p.M. on

16.04.2017. PW.5 states that 4 persons c€une to the bar, while two persons sat at a table, and the appellant and A2 went to his counter ald purchased fish. Though Saidabad police had taken the appellant and A2 and enquired about the purchase of fish, however, the Police did not show the photograph of the deceased to pW.5, who is the last person who saw the deceased on 1,6.04.2017.

13. There were witnesses who had seen the appellant, A2, and the deceased till 11.30 P.M. PW.3 is the person who had seen them around 10.45 P.M., and thereafter they were seen by PW.5 at ll.3O P.M. However, PW.5 had only identihed the appellant and another as the persons who had come to the bar. In the absence of pW.S stating that the deceased was also present in the bar, the logical conclusion would be that only the appellant and A2 were seen 5 together by PW.S. The said evidence of PW'5 creates doubt version of the appellarLt being seen regarding the Prosecution's along with the deceased'

14. The deceased was found dead the next day motning' and the approximate time of death was 24 to 36 hours prior to autopsy' according to PW.9-postmortem doctor' The post-mortem was conducted on 18.04'2017 in between 1'30 to 3'30 P'M' If the approximate time of death, and the timing of post-mortem are looked into, the death must have occurred aroun<l 12'00 noon' SincethebodywasfoundatT.3OA.M.,according;toPW.1,the death must have occurred between 2'OO A'M' to 7'30 A'M'

15. The Honourable Supreme Court' in Digdrnber Vaishno:a and ornother a. Storte of ChhattisgaTftr, freld that:

74. One of the fund-onental principles of ciminal itrispntdence is undeniablg that the burden of proof sqtarelg '"ests on the proseantion cind that the general burden neuer shifls' There can benoconuictiononthebasisofsurmisesandc<lnjecfiresor suspicion hotttsoeuer graue it mag be' Strong susq'icion' strong coincidencesandgrauedoubtcannottaketheplflceoflegal proof. The onus of tle proseantion cannot be discharged bg referring to uery strong suspicion ond' eisten<>e of highly suspicious factors to inanlpate the acansed nor falsitg of defence could take the place of proof rahich tle prosecution has to establish in order to succeed, though a false plea by the defence t (2019) 4 Supreme Court Cases 522 a; 6 at best, be cottsidered as an additional circumstance, if other circumstances unfailingly point to the guilt. 15. This Court in Jaharlal Das u. State of Oissa [Jaharlal Das u. State of Orissa, (1991) 3 SCC 27 : 1991 SCC (Cri) 5271 , has held that euen if the offence is a shocking one, the grauity of offence cannot bA itself ouertaeigh as -far as legal proof i.s ancerned. In co.ses depending highlg upon the circumstantial euidence, there is alutays a danger that tlte conjecture or suspicion moA take the place of legal proof. TLrc court has to be uatchful and ensure that the conjechtre and suspicion do not take the place of legal proof. The court must satisfg itself that uaious circumstonces in the chain of euidence slnuld be estoblished clearlg and that the completed chain must be such as to tule out o reasonable likeliLtood of the innocence of tLrc accused. 76. In order to sustain the conuiction on tle basi.s of circumstantial euidence, th.e follouing three conditions must be sotisfred: (i) tlrc circumstances from uhich an inference of guilt is sought to be dra u.tn, must be cogentlg and finnlg established; (ii) those ciranmstances should be of a definite tendencg unerringly pointing touards the guilt of the accused; and (iii) the ciratmstances, taken atmulatiuelA, should form a chain so complete that there is no escape from the conclusion tlutt ttithin all lutman probability th.e cime uas committed bg the accused and none else, and it sLtould also be incapable of explanation on anA other hypothesis than that of tle guilt of tLre accused.

77. In Varkey Joseph u. State of Kerala [Varkeg Joseph u. Stote of Keralo, 1993 Supp (3) SCC 745: 1993 SCC (Cri) 11171 , thi.s Court has held that suspicion is not the substitute for proof. There is o long distance betueen "mag be true" and "must be \ IJI 7 tn-te" and tle proseantion has to trauel all ttrc uay to proue its case begond reasonable doubt. 78. In Sujit Bistoas u. State of Assam [Sujit Bisuta:; u' State of Assam, (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 6771 ' this Court' uhile examining the distinction betuteen "proof begond reasonable doubt" and " suspicion" hois held a-s unrTer: (SCC p' 412, para 13) "13. Suspicion, Lrouteuer graue it mag be, can'not take the place of proof, and. there is a large difference betueen something that "mag be" proued-, and something that "rttill be trtroued" In o criminal tial, suspicion no matter lwto strong, cannot and must not be permitted to take place of proof' Tltis is for the reoson that the mental distonce betuteen "may be" and "must be' is quite large, and diuides uague conjectures from sure conclusions' In a ciminal co,se, tle court has a dutg to ensure that mere conjectures or suspicion d-o not take the place of legal proof' The large distance bettoeen "may be" true and "must be" ttue' must be couered bg rttag of clear, cogent and unimpeachc''ble euidence produced by tLe prosecution, before an accused is cttndemned as a conuict, and the basic and golden rule must be opplied' In such cases, while keeping in mind tLrc distance betuteen "mag be" true and ".must be' ttue' the court must maintoin tle uital distance betueen mere conjectures and sure conctlusions to be arriued at, on tte touclLstone of dispassionate judicial scrutiny ' based upon o complete and comprehensiue appreciation of oll features of the case, os well os tle qr-Lalitg and creCibility of tle euidence brought on record. The court must ensure, miscarriage of justice is auoided, ond if the facts circumstances of a case so demand, then the bertefit of doubt must be giuen to the accused, keeping in mind that a reasonable doubt is not an imaginary, tiuial or a merelg probable doubt, but a fair doubt that is baseihtpn reason and common sense'" I i,:J ---'1 \ t -

79. It is also u-tell-settled pinciple that in criminol coses' if two uieu.ts are possible on euidence adduced in the case' one binding to the guilt of the acansed and the otler is to his innocence' ttrc uieut which is fauourable to the acatsed' should be adopted' This pincipte has a special releuance in cases uherein the guilt of tfLe acansedissoughttobeestablistedbgcirglmstantialeuidence [see Kali Ram u- State of H P [Koli Ram u' State of H'P'' (1973) 2 SCC 808 : 1973 SCC Pfl 10481 l' 20. Bearing these principles in mind' ue shall nottt con'sider tLe contentions of the leorned counsel for the parties' In order to establish that tle acci-tsed haue committed the offence' tle prosea)tion hos relied on (i) testimony of child" toitness Kumari Chandni (PW 8); (ii) tle recoueies mod'e under Section 27 of ttrc Euidence Act; (iii) the fingerpint report; (iu) FSL report; (u) motiue of committing robbery; and' (ui) euidence of last seen togetler'

16. In Krrnhaigo Lal rt' State of Raiasthanz' the Honourable Supreme Court has reiterated that the last seen together' theory does not by itself lead to the inference that it was the accused who committed the crime' It was held that: o 12. The eiranmstance of last seen together does not bg itself ond neessailg lead to the inference *at it u,as the accused uho committed the crime' Th'ere must be something more estoblishing bettaeen the accused and the cime' Mere non' connectiuitg on tle part of the appellant' in our con'sidered itself cannot lead to proof of guilt agairtst the explanation opinion, bg appellant." (2014) 4 scc ? l5 '? ! - *' "*t'u* JI -'- I L7. As rightly argu ed by the learned counsel, only the last seen theory cannot form the basis to convict the appellant when there is no other corroborating evidence. Though the wearin5l apparel of the appellant and A2 was seized, however, the blood stains found on the wearing apparel could not be established as that of tlre deceased.

18. The Honourable Supreme Court, in Sho;nkor v. State oJ Maharashtras, held as follows: 'In the decision of Prokash u. State of Rojasthan (20j3) 4 SCC 668, this Court took note of the following principler; laid down regarding the law relating circumstantial evidence rn Shaiad. Birdhichand Sarda u. State of Maharashtra (i984) 4 SCC 116: "153. A close analysis of thi.s decision utould shotu that the follouLing conditions must be fulfiIled before a case against an acansed can be said to be fully estabhshed: (1) The circumstances from u-thich tlte conclusion cf guilt is to be dranun should be fullg established. It mag be noted here that this Court indicated that the circumstances concented 'must or should' and not 'mag be' establisled. T?ere is not onlA a grommatical but a legal distinction betu.teen 'may be proued' and 'must be or should be proued' e.s tDo.s hela!. bg this Court in Shiuaji Sahobrao Bobade u. ,State of Maharashtra [(1973) 2 SCC 793] uhere tlLe "tollotoing o b s e ru ations u.te re made : 19. ......'certatnlg, it i.s a pimary pincipte that the accused must be ond not merely mag be guiltg before a r 202i scc online sc 268 1U court can conuict and the mental distance betlDeen 'mr11 be' arud 'must be' is long and" diuides uague ni" ctu' e t 7' om sur e coruclu sio ns" \l -a "o P ) rhe f acts *' o oolYo n:T:i :;-S::: ::::": the hgPotlesis of the sag, theg stwutd not bs e:'xplainabte on afta otler 'rOO**"* except that the acatsed " should be of a conclusiue nature nu"tl''^'"' p) Th.e arcumstances exctude euery possible hgpothesis except ttle one b be Proued' ,-,"#::::: g)rheremustbe"' jj;::-":::X';,*,::'::-:'::: r +u^ ar-ntS€d and must to leaue arrll reasutL@"'" J consistent lDith the innocence of the acarcr slaw that i' rrtt W*n probabltitg tle cict must taue been done bg tle accused' constitt'Lte the euidence'" AssanLa held as follows:

154. Ttese ftue golden pan"ipt"r, if ue may ":, _:'' pcrLclsleel of tt'e proof'"":;;'tt"" bosed on ciranmstantial 19. The Honourable Supreme Court' in Sujit Bisu)ds a' State ol '13. Suspiaon' hotDeuer graue it mag be' *"":::;ff':::-il i;,::::;"."::::1"'{:::'7':i;;;::::::: stspiaon flo mdtter hou) strong' cannot ond mu n*on ''*'' take place o7 p'oo7''-tiiJ"it" i' 'nt it q'i'7 "l'" '" ?'n"' ""o betueen '*^o ot' "^l lft o ciminat coniecfitres from *7"**nJ'o"o."s' dutg to ensure tllat flLere anjecfites or sus;'"';-g ptace of tegal proof' The large distance betlD( tle nentol distance diuides uagte j;::,::: '::::t:'":::; be" tnte and 4 (20t3) 12 scc 406 L t- ! I I 11 .to the dccused' *must be, tnte, must be couered' bg uaA of cleor' ccqent and unimpeachable euid'ence produced- bg the prosecution' before an accused is condemned- os a conuict' and the basic ond qolden tule must be apptied' In such cases' uhile keeping in mind tle distance between "mag be' true and 'must be' true' the court must mointain the uitot distonce betu)een mere conjecfi-tres and surl conclusions to be ariued at, on the toucltstone of dispo'ssionate judiciol scntting' bosed upon a complete and comprehensiue apprecirttton of oll features of the case' os uell os tle qtalitg and credibititg of the euid'ence brought on record' Tle court flutst en'sure' thnt miscarriage oJ justice i's auoided'' and if the facts and circumstanc'es of a case so demand, then the a"nttri of doubt must be Euen keeping in mind thot a rea-sonable doubt is not on imacrinary ' tnuial or a merely probable doubt' but a fair doubt that is based upon reoson and comtlu)n serlse (Vide Hanumant Gouind Nargundkor u' State of M'P' ft1g52) 2 SCC 71 ' AIR 1t)52 SC 343 : 1953 Ci Ll 12gl ' State u"Mohender Singh Dahtgo 1P011) 3 SCC 109 : (2011) 1 SCC Pn) 821 : AIR 2O11 SC 10171 and Ramesh Honjan u. state of u'P' 11iotz1 s scc 777 : (2012) 2 scc Pd 9o5l )" 20. As already discussed' PW'S had last seen the appellant' However, PW'S does not state that the deceased accompanied the In such circumstances' and also in the background of the doctor-PW.9 stating that no alcohol was found in the stomach of the deceased, the entire version ol: the Prosecutlon becomes doubtful 2l . AccordinglY , the Criminal Appeal is allowed' setting aside the recorded by the Metropolitan Sessions Judge' post-mortem apPellant conviction i l -,.-rtl 12 Hyderabad, in S.C.No.O4 of 20 18 dated 11.09.2018. Since the appellant/A1 is on bail, his bail bonds shall stald discharged //TRUE COPY// SD/- K- SRINIVASA RAO iotNr ReetsrRaR SECTION OFFICER records' if any) 'o'',. ,n" Metropolitan Sessions Judge' Hyderapa-d .(with

2. The Vt I Add itionat cni"i rr/llir"p"ritanlvlagistrate, Hyderabad' 3. fh" Srp"tintendent central Prison' Chertapatty- 4. The Station Ho'se oriilti'taidabad Police Station' Hvderabad' 5 rwo ccs to the pr;i;;;;;;;6r, High court for the state of relansana 6 6rre'd';tiig. e'Jur''rar Reddv' Advocate [oPUC] 7. Two CD CoPies ('$- at Hvderabad. [OUT] Kam/gh r. HIGH COURT DATED:2510412025 JUDGMENT L.) 1 0 JUN zlE 16 o i4 'a' o€sna TCr 'r'- :-;;;:/ CRLA.No.2699 of 2018 t ALLOWING THE CRIMINAL APPEAL q# l/./ 5 D-) d r z c. l.'{