Criminal Appeal No. 121 of 2018 · The High Court · 2025

The State of Telangana, through Public Prosecutor, High Court of Judicature at Hyderabad. ...RESPON DENT/COMPLAI NANT IA NO: 1 OF 2024 Petition under Section 430 (1) of BNSS R/w Section 528 of BNSS praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the sentence imposed in judgment dated 1111212017 in SC.No. 136 of 2014 on the file of the Learned Vl Additional District and Sessions Judge at Godavarikhani, by enlarging the petitioner/A2 on bail. Counsel forthe Appellant in CRLA No. 17't5 ol 2017: Sri S. M. Rafee Counsel forthe Appellant in CRLA No. 121 of2018: Sri T. Niranjan Reddy Counsel for the Appellant in CRLA No. 732 of 2018: Sri S. Ram Reddy Counsel for the Respondent in CRLA's: Sri Dodla Arun Kumar, Additional Public Prosecutor The Court delivered the following COMMON JUDGMENT: THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR CRIMINAI APPEAL Nos.1715 OF 2017 & 121 and 732 of 2Ola COMMON JUDGMENT: (per llon'ble Sri Justice K.Surender) These appeals are filed by appellants/accused Nos. 1, 2, and 3, aggrieved by the judgment, dated ll.l2.2O14 in S.C.No.136 of 2O14, passed by the VI Additional District and Sessions Judge, Godavarikhani, questioning their conviction and sentence under Sections 120-8, 302, and 3BO of IpC.

2. Heard Mr. T.Niranjan Reddy, learned Senior Counsel for accused No. 1, Mr. S.Ram Reddy, learned counsel for accused No.2 and S M Rafeo, learned counsel for accusecl No.3 and Mr. Dodla Arun Kumar. learned Additional public prosecutor, appearing on behalf of respondent-State.

3. The brief facts of prosecution case are that, on Oa.O7.2OL2, at about 0O.05 hours, pWl, who is husband of Mrs. Jyothikala (hereinafter referred to as the deceased), iodged a complaint in N'I'PC Police Station stating that, on 07.O7.2012, at about 01:,15 pm, he left for his second shift of official duty in NTPC and the deceased was alone in the house at that time. While he was on duty, he made a phone call to deceased at I 2 ) about 7:3O P.M., but there was no response from the deceased to his call. Again, he made another call to the landline phone, but there was no response from deceased to his second call. He returned home at about 8:OO P.M, and found the deceased lying dead on cot, in the bedroom. He also observed that a kerchief was gagged into her mouth, and that her hands were tied with an electric wire, and also found that gold pusthelatadu and two gold rings were missing. PW 1 suspected that some unknown persons committed theft and kiiled his wife. He gave a report (Ex. P-1) to the S.l. of Police, NTPC, PW-15, who registered a case in Crime No. l}l 12012 for the offences under Sections l2O-8, 3O2, and 38O of IPC, and issued express FIR/Ex.P- 16.

4. Basing on the report of PW-1, PW-16, Inspector of Police, took up the investigation from PW- 15 and recorded the statement of PW-1, and rushed to the scene of offence, and also called for dog squad from Karimnagar. He had collected blood stains on the floor and on door curtain of the bed room, with cotton swabs from the scene, with the help of clues team. PW- 16 also seized the plastic electric wire (MO.19), saree (MO.17), kerchief (MO.18), broken bangle pieces (MO.16), and one tester (MO.2O) from the scene of offence, and conducted scene of offence Panchanama in the presence of PW-1O & LW-2O. PW-16 also examined PWs.3, 4, &' 6 and recorded their statements. / J PW 16 also recorded the statement of PW-2 ancl LW-9, rvho are respectively, the daughter and son-in-law of PW- 1 and the deceased. Thereafter, he completed inquest on the dead body of deceased and sent the body for post mortem examination to Government Area Hospital, Godhavarikhani.

5. PW-14 and Dr. Surya Rao (LW.27) conducted post mortem on the dead bocly of the deceased, ald preserved intestine, liver, etc., for chemical analysis. Ex. P-14 is the post mortem report and Ex. P-15 is the final report, and the cause of death as per Doctor's report, is due to asphyxia and shock, and it nas opined that the deceased died due to smothering and throttling.

6. It is further case of the prosecution that pW- 16 has procured call details of all network companies and verihed the call details r,r'ith the help of tower IDs and calls made at pTS NTPC on O7-O7-2O12, and observed that there were frequent calls from mobile number 9000280882 to mobile numbers 85O1930240 and 9951 103666.

7. The further case of the prosecution is that, on 25.O8.2O12, at about 7:00 am, pW-16 apprehended A1 & A2 at Goutham Nagar, NTPC, and interrogated them and recorded their confession statement(s) in presence of pW_ 12 and LW_22. ,| I 4

8. It is alleged that at the instance of appellant, the Police seized M.O.1 to MO.15, M.O.i9, M.O.27, and M.O.28, at Goutham Nagar and from appellant's house at Ranapur.

9. PW- 16 also collected the call data records among the appellant and accused Nos.2 and 3. The prosecution agency also collected CCTV footage ard Compact Disc/Exs.P7 & PB through PW-11 from NTPC.

10. Learned Sessions Judge relied on the following circumstances, as projected by the prosecution to convict the appellants:

1. The deceased was found dead on O7.O7.2012, and death was homicidal. Her jewellery was missing.

2. CCTV Footage, which was recovered and marked as Exs.P7 and P8, shows the presence of accused No.1 near the scene.

3. When DNA tests were conducted on the swabs collected from the scene, it tallied with the DNA of accused No.2.

4. The accused were absconding. After the arrest, confessions were recorded, pursuant to which, seizures were effected, including jewellery of the deceased, from accused Nos. I to 3. ,_- ) 1 1. The mair-r thrust of the argument of learned counsel for appellants is that, insofar as accused No.l is concerned, the main connecting link is CCTV footage. However, no 65(8) certificate u,as filed along with the footage, as such, the said CCTV lootage cannot be looked into to infer that accused No. 1 was found at the scene at the reievant time.

12. The second contention is that the DNA, which was allegedly found at the scene, cannot be looked into, since there is a delay of nearly one year before the tests u,ere done. The guidelines for collection and storage require that rhe samples be sent immediately after the collection, and that the collection should also be done with utmost care. However, though samples r.r.erc collected on 08.07.2012, they were produced belbre the Magistrate on 28.OT.2O12, and sent to FSL on 29.11.2012, rvhich was after collection of the blood samples of accused No.2 . The possibility of tampering with samples to impiicate the accused cannot be ruled out.

13. Learneri Senior Counsel further argr-red that the recovery of the jeu.ellery cannot form the sole basis for conviction. 6 Learned Senior Counsel relied on the judgment of Hon'ble Supreme Court in Subramanga a. State of Karnatakat.

14. Learned Senior Counsel also relied on the judgment of Hon"ble Supreme Court in Nishad u. State oJ Maharashtraz, in support of his arguments that there cannot be a delay in sending the samples for DNA testing, and when there is an unexplained delay, the said test cannot be looked into. The learned Senior Counsel also relied on the judgment of Hon'ble Supreme Court in Mustkeem u, State oJ Rajasthans, dealing with circumstantial evidence, wherein, Hontrle Supreme Court, while dealing with the recovery and admissibility of confession under Section 27 of Indian Evidence Act, held that a statement which leads to discovery of fact would be admissible. However, in the present case, it was argued that the portion that was marked in the confession does not fall within the admissibility, as required under Section 27 of t):,e Indian Evidence Act.

15. On the other hand, learned Additional Putrlic Prosecutor would submit that the case is of circumstantial evidence, and all the circumstances relied on by the prosecution would I (2023) 11 scc 255 , AIR 2023 sc 2938 3 AIR 2011 sc 2769 7 coilectively indicate that appellants are the person s who had perpetratcd the crime.

1. CCTV Footage: Exs.P7 and P8 are the compact disks which are fi1ed by the prosecution showing presence of accused No.l near the scene of offence. The said CCTV Footage was transferred on to the compact disk and filed before the Court. The main source of storage is the hard disk, which stores the recording of cameras. However, the hard disk was not frled. Once the contents of recording from the hard disk are transferred on to a compact disk, it is incumbent on the person, who has provided the disks, to give a certificate as required under Section 65(8)(a) of the Indian Evidence Act, so that, the requirements as contemplatecl under Section 65(8)(4) are met. In the absence of such certification, tht: Court cannot look into the said CCTV footage evidence.

16. The Hon'ble Three Judge Bench of the Supreme Court, in the latest judgment of Arjun Panditrao Khotkar u. Kqildsh Kushanrao Gorantgal and. otherd, held that, when the primary evidence is not produced, producing of certificate under Section 65(8)(4) of Indian Evidence Act, is mandatory to o 1zozo1 z scc i 8 consider secondary evidence. The prosecution relied heavily on the CCTV footage to implicate accused No. 1, apart from the seizure that was effected at his instance. Insofar as CCTV footage is concerned, the same cannot be relied upon.

17. The recovery aspects will be discussed in the later paragraphs.

2. Collection of samDles from the scene: The case of the prosecution is that the blood stain samples were collected by the Investigating Offrcer from the scene of offence on O8.07.2012. The samples were cotton swabs, which are six in number, and were secured separately in six covers. The said samples were produced before the concerned Court on 2a.O7.2012. Meanwhile, during the course of their investigation, the Investigating Officer apprehended accused Nos.1 to 3 on 25.08 .2072. After recording their confessions and seizure statements, the blood sample of accused No.2 was collected on 29.11.2012, and the sarne was sent to FSL for DNA testing on 29.11.2012. The FSL report/ Ex.P38 was issued on 23.11.2013. It is not out of place to mention that the FSL expert, who conducted testing, was not examined by the prosecution before the trial Court. 9

18. There are guidelines in place for Investigating Officers, which are to be followed during the course of collection and preservation of samples at the scene of offence. 19 . The relevalt guideline for Investigating Ofhcers of the CFSL, issued by the Directorate of Forensic Sciences Services, Ministrv of Home Affairs, Government of lndia, reads as under: " Procedure for collection and preseruation of bioto qical eld9!:ee bU Inuestiqatin q Officer: I'he died blood stains tuhich are found at the scene in the fornt of spotters or stains haue to be collected by rnoistening the dry blood stains for 5-10 minutes tuitlt distilled water. The stains haue to be collected utitlt focrm tipped suab or gauze p[ece and air dry the sttctb. This pock has to be placed on proper enuelop. The sarnples rnust immediately transported to concerned Loboratorg and tt should not be ang delay. Further, precautions are also to be taken so as ':tot to corttctnt irtate the s arnp le s. "

20. The officer collecting the samples was not examined. Investigating Officer speaks about collection of samples. However, the samples that were collected on 0g.07.2012, were produced belbre the concerned Magistrate on 28.OZ .2012. l0 Further, the Investigating Officer has not stated the condition under which the samples were stored or in whose custody the samples were for a period of 2O days. Again, there is no proper explanation regarding custody of the samples from 2a.OZ.2Ol2 tlll 29.11.2012. The Investigating Officer failed to explain as to why the samples were not immediately sent to the FSL, in accordance with the rules. There arises any amount of suspicion regarding samples being sent by the Investigating Officer only after the blood samples of accused No.2 were collected on 29.11.2012. Furthermore, the test report is dated

23.11.2013, which is nearly one year after samples were sent.

21. The Hon'ble Supreme Court in Nishad o. State of Maharashtra (2 supra), found that the unexplained delay in sending the samples is fatal to the prosccution case. The relevant paragraphs are as follows: "61. In the present case, the delay in sending tlle samples is unexplained and therefore, the possibility of contamination and the concomitalt prospect of diminishment in va.lue cannot be reasonably tuled out. On the need for expedition in ensuring that samples when collected are sent to the concerned laboratory as soon as possible, we may refer to "Guideiines for collection, storage and transportation of Crime Scene DNA samples For Investigating Officers- Central Forensic Science Laboratory Directorate Of Forensic Sciences Services Ministry Of Home Affairs, Govt. of India" which in particular reference to blood and semen, irrespective of its form, i.e, iiquid or dry (crust/stain or spatter) records the sample so taken "Must be submitted in the laboratory without any delay." I / II

62. Thc document also lays emphasis on the 'chain of custoci-v' bcing maintained, Chain of custody implies that nght I'rom the time of taking of the sample, to the time its ro.lc in the investigation and processes subsequent, is complcte, each person handling said piece of evidence must duly be acknowledged in the documentation, so as to ensure that the integrity is uncompromiscd. It is recommended that a document be duly maintarned cataloguing the custody. A charn of custody document in othcr urords is a document, "which should include name or initials of the individual collecting the evidence, each person or entity subsequently having custody of it, dated the items u.ere collccted or transferred, agency and case numbcr, vlctim s or suspect's naJnc and the brief description of the item."

22. In a serious case of murder, the handling of samples, their custoclt', and the samples being sent to the concerned laboratory u,ithout delay, has to be clearly reflected in the prosecution case. In the absence of any explanation regarding the dela1, and the custod), of the samples in proper form, there arises any amount of doubt regarding correctness of the prosecution version and also the report. The expert was not examined. The expert rvould be the proper person to speak about whethcr the samples, which were sent to the FSL flearly 2 months after collection, would be ht for conducting tests. No reason is given as to why the expert was not examined. Though under Sectiort 294 of Cr.P.C., the FSL report given by the Assistant Director can be looked into, however, the provision also gives po\\rers to the Court to call for the expert to clear any doubts. As already discussed, the reason for delay in sending the samples and the manner in which the samples were t2 collected ought to have been explained by the prosecution by examining the experts.

23. In view of the reasons discussed above, the DNA report/Ex.P35 cannot be looked into to connect the accused No.2 with the scene of offence.

3. Recoveries:

24. The other major circumstance relied on by the prosecution are the recoveries that were effected at the instance of accused Nos.1 to 3. The following articles were seized from A1: i. Gold pusthella thadu weighing 24 gram s (PW-6 got it weighed by PW-7); and ii. Samsung cell phone with SIM card number 8501930240; The following articles were seized from A2: i. Nalla pusala golusu weighing 24 grarrrs; ii. One gold ring with white stones weighing 3.6 grams; iii. One gold ring with red stones weighing 2.4 grams; iv. Gold locket weighing 5.9 grams; and v. Samsung ce1l phone with SIM card number 9502148188; vi. One Baj aj CT-IOO motor cycle bearing no. AP-28-BD- 5065 (Items 1-4 were weighed by PW-7) The following articles were seized from A3: i l3 i. One gold plain ring weighing 1.3 grams; and ii. Bajaj motorcycle.

25. The confession of an accused is hit by Section 25 of Indian Evidence Act. However, exceptions are made under Section 27 of Indian Evidence Act regarding the admissibility of confession. The admissibility is to the extent of a discovery of nerv fact that comes to the knowledge of the Investigating Officer during the investigation. F or an admissible portion of an1, confesslon to fal1 within Section 2T of Indian trvidence Act, it must be directly connected to the knowledge of accused of a fact, that was not previously known to the lnvestigating Ofhcer and must have been discovered at the instance of accused pursuant to such confession. The Hon,ble Supreme Court, in Mustkeem u. Stqte of Rajasthan (3 supra), held as follows: "25. With regarcl to Section 27 of the Act, what is importalt is discovcry of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence rvas also committed by the accused. In fact, therea-fter, burden lies on the prosecution to establish a close link betu.een discovery of the material objects and its use in the commission of the offence. What rs admissible under Scction 27 of L]ne Act is the information leading to discovery emd not any opinion formed on it by the prosecution. " 26. If the recovery memos were prepared at the police statron itself then the same would lose their sanctity as held by' this Court rn Var-un Chaudhary V. Statl of Rajastharr2. t4

27. T}:.e scope and ambit of Section 27 were also illurninatingly stated in Pulukuri Kotayya v. King Emperor reproduced hereinbelow: "... it is fallacious to treat the'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, arld the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that'l will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concea,led in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevart. But if to the statement the words bc added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informalt." The samc observations were thereafter restated in another judgment of this Court in Anter Singh v. State of Raj asthan.

26. The entire case rests on the circumstantial evidence. ln cases of circumstantial evidence, the Honble Supreme Court in Sharad Bird.hichand Sard.a u. Strrte of Md.hrr.rrrshtros, held as follows: "The following conditions must be fulhlled before a case against an accused cal be said to be fully established on circumstantiai evidence: (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established shoulcL 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 t}le accused is guiltY, (3) the circumstances should be of a conclusive nature arrd tendency, s lrsa+1 e scc rro --'------( l5 (4) thc1, should exclude cvery possible hypothesis except the one to be proved, and (5) there must be a cha.in of evidence so complete as not to leave anv reasonable ground for the conclusion consistent with the innocence of the accused and must shou, that in all human probability the act must have becn done b1. the accused." The doctrine o[ circumstaltial evidence was once again discussed zurd summarised in Scttattya a. State of Maharashtrc6, in the followrng terms: "10. It is settled law that an offence can be proved not onl]' by direct evidence but also by circumstantial cvidence where there is no direct evidence. The court car drarv ar-r inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstarces from which al inference as to the guilt is drau,n have to be proved beyond reasonable doubt and have to be shorvn to be closely connected u.rth the principal fact sought to be inferred from those circumstances."

27. In the confession of accused No.1, Ex.PlO was marked as the admissible portion of accused No.1. The confession led to the recover-v of gold jervellery from accused No.1. Ex.P10 reads, "the soid gold pustela thadu tuas weighed and both of them are 24 grams, sealed in plastic couer and the panchos haue signed and pastecl slips" (translated bg me).

28. The said portion, which was marked as Ex.P10 during the course of trial, cannot be said to be admissible under Section 27 of Indian Evidence Act. Ex.P10 narrates regarding weight of the jewellery and also the manner in which they were sealed. u lzooe; : scc zro 16 However, the basic requirement of discovery at the instance of the accused is not reflected in Ex.P10. In the absence of Ex.P10 not falling within the requirement of Section 27 of Evidence Act, the same cannot be looked into, and the seizures that were allegedly effected at the instance of accused No. I , cannot be considered by the Court as an exception to be considered under Section 27 of t!l,.e Indian Evidence Act.

29. Similarly, Ex.P 1 1 is the admissible portion that was marked insofar as accused No.2 is concerned. Ex.Pl 1 reads, '1. Nallapusalu Golusu (black beads) ueighing 24 grams, 2. White stone shtdded ing u-teighing 3.6 grams, 3. Red stone ing weighing 2.4 grams, 4. Gold locket uteighing 5.9 grams and all the jeuellerg utas placed in plastic couer" (translated bA me). As discussed above, Ex.P11 does not reflect that there was any discovery of new fact during investigation. Ex.Pl I cannot form basis to infer that seizures were affected at the instance of accused No.2.

30. Ex.P13 is the admissible portion that was marked, insofar as accused No.3 is concerned. Ex.P13 reads, "we the panchas haue examined that the ring which is ordinary ring and it utas token to Clnndrashekar u.tho is gold smith utho examined it and uteighed uhich is 1.300 gms., ualued at Rs.3,)OO/-. CBZ motor 17 o I I cAcle was also exanited and it is Hero Honda Compang bearing No.AP29-L-5962 in yellotu color, tuith chassis No.05H46C00491" (trttnslated bg me). The said portion is inadmissible and does not satisfl' the rerluirement under Section 27 of the Indian Evidence Act, to read the said statement against the appellant, and for the Court to infer that a new fact u,as discovered or the said ornaments u'erL- seized at the instance of accused No.3.

31. When the CC'I'V footage, DNA test, and the recoveries, for the reasor-rs cliscussed above, are eschewed from consideration, lhere is absolr-rtelv no orher evidence to lir-rk any of the appellants to the crime.

32. In vieri' ol the above, the prosecution has failed to establish anv cir<,-lrmstances by provrng t hem beyond reasonable doubl so as to form a complete chain pointing tou.ards the guilt of the accused. Hence, benefit of doubt is extended to the appellants.

33. Accordingll', these Criminal Appeals are allowed, the sentence and conviction imposed against the appellants/accused in rhe judgment dated i 1.12.2017, in S.C.No.136 of 2014, passed by the VI Additional District and Session Judge, Godavarikhani, is hereby set aside. Since the l8 appellants/accused are ln jail, they shall be released forthwith, if they are not required in any other case. t ::'. //TRUE COPY// Sd/. K. SRINIVASARAO JOINT REGI SECTIO FFICER One Fair Copy to the Hon'ble Sri Justice K.SURENDER (For His Lordship's kind Perusal) AND One Fair Copy to the Hon'ble Sri Justice ANIL KUMAR JUKANTT (For His Lordship's kind Perusal) 'l . The Vl Additional District and Sessions Judge at Godavarikhani. 2. The Judicial Magistrate of First Class Magistrate, Godavarikhani, Karimnagar \ To, District

3. The Judicial Magistrate of First Class, Manthani 4. 11 LR Copies 5. The Under Secretary, Union of lndia, Ministry of Law, Justice and Company Affairs, New Delhi

6. The Secretary, Telangana High Court Advocate's Association Library, High Court for the State of Telangana, High Court Buildings at Hyderabad. 7. The Superintendent, Central Prison, Cherlapally, Rangareddy District 8. The Superintendent, Central Prison, Warangal, Warangal District 9. The Station House Officer, NTPC Police Station, Ramagundam 10.Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderbad.[OUTI

11.One CC to Sri S. M. Rafee, Advocate [OPUC] 12.One CC to Sri T. Niranjan Reddy, Advocate IOPUC] 13.One CC to Sri S. Ram Reddy, Advocate [OPUC] 14.Two CD Cop'res VH % I HIGH COURT DATED: 2710212025 I, -t e 1 HE STATG o o-) c o 13 ilAn zffi ($r z () .t o6gpr: r.'t COMMON JUDGMENT CRLA.No.1715 of 2017, CRLA.No.121 of 2018, AND CRLA.No.732 ot 2018 ALLOWING THE APPEALS bD