Allowed

Chembeti Srihari, Guntur Dt., v. State of Ap., Rep Pp.

Andhra Pradesh HC3 Aug 2021CRLA/753/2014

Case brief

AI extract

What is this about?

Circumstantial evidence appeal against conviction for murder and robbery. The court held that the circumstances relied on — last seen, extra judicial confession, call data and identification of the deceased's ornaments — were not proved beyond reasonable doubt and did not form a complete chain. The test identification of property was conducted contrary to Rule 35 of the Criminal Rules of Practice.

What did the court decide?

Conviction and sentence under Sections 302, 201 and 392 IPC set aside; appellant acquitted and set at liberty forthwith; fine amount, if paid, to be refunded.

Chembeti Srihari, Guntur Dt., Vs State… — Murder and Culpable Homicide | Andhra Pradesh HC (2021)

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HONOURABLE SRI JUSTICE C. PRAVEEN KUMAR

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And

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HONOURABLE SRI JUSTICE B. KRISHNA MOHAN

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Criminal Appeal No.753 of 2014

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JUDGMENT : (Per Hon’ble Sri Justice C. Praveen Kumar)

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Heard Sri Raja Reddy Koneti, learned Counsel appearing for the Appellant and Sri. K. Srinivasa Reddy, learned Public Prosecutor, through Blue Jeans video conferencing and with their consent, the present Criminal Appeal is disposed of.

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The sole accused in S.C.No.8 of 2013 on the file of Sessions Judge, Guntur, is the appellant herein. He was tried for the offences punishable under Sections 302, 201 and 392 of the Indian Penal Code, 1860. By its judgment, dated 14.05.2014, the learned Sessions Judge, Guntur, convicted the accused for the offence punishable under Section 302 IPC and sentenced him to suffer imprisonment for life and to pay fine of Rs.5,000/-, in default to undergo rigorous imprisonment for one year. He was also convicted for the offence punishable under Section 201 IPC and 392 IPC and sentenced to suffer rigorous imprisonment for seven years and also to pay a fine of Rs.3,000/- in default, to suffer rigorous imprisonment for six months under each count. The substantive sentences were directed to run concurrently.

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The substance of the charge against the accused is that on 19.01.2012, the accused is said to have killed one Nandiraju Srilaxmi, who is sister of PW.1 and wife of PW.2 and thereafter robbed gold ornaments and money.

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1. The facts in issue are as under:

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i) The deceased Nandiraju Srilaxmi is a resident of old Guntur, while the accused is a resident of Vaddera, 1^st lane, Ramireddy Nagar, opposite to Jute Mill Workers Colony, Nallapaudu road, Guntur. The accused was eking out his livelihood by maintaining one lorry. On 19.01.2012 that the mother of PW.1, who was admitted in Amar Orthopaedic Hospital, Guntur, underwent operation. At about 2.00P.M., deceased Srilaxmi along with PW.2 went to the hospital to pay hospital charges. She is said to have stayed in the hospital till 9.30 P.M. to 10.00P.M. At about 9.30 P.M., PW.1 reached the hospital after closing the canteen in Liberty theatre. He noticed the deceased Srilaxmi coming down from the stairs of the hospital. PW.1 noticed his sister talking to a young boy, who was sitting on motor bike. After talking for sometime, the said person left the place. On enquiry, Srilaxmi/the deceased informed PW.1 that the said person came there to pay costs of the sarees, as she is doing saree business. PW.1 is said to have scolded the deceased as to why that person came during night time

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to pay the amount. So saying he is said to have sent her home.

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ii) PW.2 is the husband of the deceased Srilaxmi. At about 11.30P.M. PW.2 telephoned to PW.1 enquiring about his wife Srilaxmi as she did not reach home till then. He was informed by PW.1 that he sent his wife from the hospital at 10.30P.M. itself and that he was not aware as to what had happened thereafter. Both of them tried mobile number of Srilaxmi bearing No.9885030078, but it was switched off. On the next day morning, he telephoned to PW.4, who informed him that she spoke to Srilaxmi at about 10.50P.M. on the previous night and she informed her that she was in the company of a customer and will call her on the next day morning. PW.2 along with PW.1 searched for two days, but could not trace her. Later, on 21.01.2012 PW.2, PW.1 and his father-in-law went to the police station and lodged Ex.P.1 report with PW.23, the Sub-Inspector of Police, Kothapeta Police Station.

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iii) Basing on the said report, PW.23 registered a case in Crime No.21 of 2012 as woman missing. Ex.P.20 is the FIR. According to him, he examined PWs.1 and 2 and recorded their statements. He also prepared a rough sketch of the scene of offence, which is marked Ex.P.21. After recording the statement of PW.3, he visited the house of Srilaxmi, examined one Ramya and recorded

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her statement. Pursuant to the statement of PW.2, he examined PW.4 and recorded her statement. He also addressed a letter to the Superintendent of Police on 21.01.2012 to furnish call data particulars of the deceased Srilaxmi and he received the same on 23.01.2012. Ex.P.22 is the call data details. He continued with the investigation basing on the call data particulars.

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iv) PW.14 is the V.R.O. of cluster villages. According to him, on 23.01.2012 at about 7.00 A.M., on receipt of information over phone from PW.13 about a dead boy covered in a plastic and bed sheet, lying at a distance of 70 meters to Bhagavanvaripalem, visited the place and found it in a plastic cover by the side of NH-5. On his directions, PW.13 opened the packet and found it to be the dead body of the deceased. He informed the same to Ponguluru police station vide Ex.P.4 report, basing on which PW.25, the Sub-Inspector of Police, J. Panguluru police station, registered a case in Crime No.5 of 2012 under Sections 302 and 201 IPC and issued Ex.P.30 the original FIR. He informed about the incident to the Inspector of Police and later visited the police station and collected a copy of FIR. PW.26, the Inspector of Police, on receipt of FIR in Crime No.5 of 2012 of J. Panguluru police station, proceeded to the police station and

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recorded the statement of PW.14. Later, he visited to the scene of offence and found the dead body of a female person with cut injuries. He noticed an injury on the right side of throat. He observed the scene of offence in the presence of PW.14 and another and seized M.Os.12 to 17 blood stained bed sheets, polyethene sleep well bed cover under the cover of Ex.P.6 Mediatornama. He then prepared Ex.P.31 a rough sketch of scene and also got photographed the dead body. On the same day, i.e. on 23.01.2012, he conducted inquest over the dead body in the presence of PW.1 and others. Ex.P.7 is the inquest report. During inquest, he examined PW.13 and recorded his statement. Thereafter, he forwarded the dead body for post mortem examination. It is to be noted here that at the time of inquest, he received information about the registration of Crime No.29 of 2012 of Kothapeta police station.

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v) PW.20 is the Medical Officer, Community Health Centre, Addanki. On receipt of requisition from the Inspector of Police, J. Panuguluru police station, conducted autopsy over the dead body of the deceased and issued Ex.P.12 the Post Mortem examination. After receipt of Ex.P.13Expert Opinion and Ex.P.14-FSL report, he opined that the deceased appeared to have died due to haemorrhage and cardio genic shock followed by cut injury to greater

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vessels i.e. both carotid arteries and jugular venis and neck muscles on right side of the deceased. Ex.P.15 is the final opinion.

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vi) On 13.02.2012 at about 9.45P.M., PW.23-the investigating officer produced PW.8 before PW.24-the Inspector of Police, Kothapet along with written report Ex.P.2, basing on which he altered the FIR from woman missing to one under Section 302, 379 and 201 IPC. PW.8 lead them to the house of the accused, which was found locked. There, he examined PWs.8 to 10 and recorded their statements. Basing on the said statements, he added Section 363 IPC. On 14.02.2012, he visited Amar Orthopaedic Hospital and examined PW.3. On 16.02.2012, he received information about the accused coming to his house. Immediately, the police party proceeded to the house of accused and on seeing them, the accused tried to escape, but he was apprehended. On interrogation, the accused confessed about the commission of offence, which lead to seizure of cash of Rs.90,000/- and M.Os.1 to 4 gold ornaments from the possession of the accused under the cover of Panchanama. Pursuant to the confession, PW.24 seized cell phones of the deceased and also the blood stained clothes M.O.9 and 10. Rough sketch of the scene came to be prepared, which is Ex.P.25. The money purse of the

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deceased was also seized, which is placed on record as M.O.8.

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vii) According to PW.24, the accused took them to the place where he threw the dead body of the deceased Srilaxmi. Thereafter, they contacted the Sub-Inspector of Police, J. Panguluru, who is said to have informed them about the dead body of female in a packed cover and bed sheet and the registration of the case in Crime No.5 of 2012 for the offence under Section 302 and 201 IPC. The accused was arrested on 16.02.2012 at Ramireddy Nagar and was sent to Government General Hospital, for the treatment of his injury. PW.22, the Casualty Officer, Government General Hospital, Guntur, examined the accused on 16.02.2012 and issued Ex.P.19 wound certificate. On 17.02.2012 the accused was produced before the Magistrate for judicial remand. Test Identification Parade of the property was held in Fancy Kalyanamandapam, near Gunta ground in the presence of PW.19. Ex.P.11 is the Test Identification parade of the property. After collecting all the necessary documents including F.S.L. report and the report of superimposition, PW.24 filed a charge sheet before the Court of IV Additional Judicial Magistrate of First Class, Guntur, which was taken on file as P.R.C.No.20 of 2012.

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viii) On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Session, the same was committed to the Court of Session under Section 209 Cr.P.C. On committal, charges under Sections 302, 201 and 392 IPC came to be framed, read over and explained to the accused, to which, he pleaded not guilty and claimed to be tried.

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ix) In support of its case, the prosecution examined PW1 to PW.26 and got marked Ex.P.1 to Ex.P.31, apart from marking M.Os.1 to 30. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which he denied, but, reported no defence evidence. After considering the evidence available on record, the learned Sessions Judge found the accused guilt for the charges referred to above. Assailing the conviction and sentence, the present criminal appeal came to be filed.

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Sri Raja Reddy Koneti, learned counsel appearing for the appellant mainly submits that there are no eye-witnesses to the incident and the entire case rests on the circumstantial evidence. He submits that the circumstances relied upon by the prosecution are not proved and even if proved, do not form

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a chain of events to connect the accused with the crime. He submits that the prosecution failed to prove that the dead body found on 23.01.2012 is that of the deceased Srilaxmi. According to him, though PW.26 was aware about registration of Crime No.29 of 2012 of Kothapeta police station at the time of inquest, he failed to inform Kothapet police station about tracing the dead body and only on 13.02.2012 when the accused was arrested and in pursuance of his confession, the accused showed the place where he thrown the dead body, he informed about the tracing of the dead body. He further submits that the alleged extra judicial confession made before PW.8 cannot be believed. In fact, there is no necessity for the accused to disclose about the commission of offence before PW.8, who was only a worker. Insofar as the identification of the articles of the deceased is concerned, he would submit that the same is in violation of Rule 35 of the Criminal Rules of Practice. According to him, the D.N.A. profiling goes against the case of the prosecution. Even in respect of call data particulars secured by PW.23, the same does not conclusively establish that it was the accused alone who was responsible for the death of the deceased.

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On the other hand, Sri K. Srinivasa Reddy, learned Public Prosecutor opposed the same, contending that lapses on the part of the investigation in not intimating about the tracing the dead body would not give any benefit to the

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accused, more so, when the other circumstances are proved beyond reasonable doubt. He submits that the dead body of the deceased was identified by PWs.1 and 2 when the photos were shown to them and the articles of the deceased were recovered from the possession of the accused, for which no explanation is forthcoming from him. He further submits that Rule 35 of the Criminal Rules of Practice is not a mandatory provision and identification of properties by PW.1 in the presence of mediators does not in any way prejudice the accused. He also took us through the evidence of Post Mortem doctor and the report of the R.F.S.L. to show that the dead body recovered is that of the deceased.

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In order to appreciate the rival arguments advanced, it would be appropriate to refer to the evidence available on record. PW.1 is the brother of the deceased. In his evidence, he deposed about his mother getting admitted in the hospital and the deceased visited the hospital at 2.00P.M. on 19.01.2012 and staying there till 9.30P.M. on that day. He also deposed about the deceased talking to a person outside the hospital and when he questioned, she is said to have stated that the said person came for paying money for the sarees. His evidence also disclose that since the deceased did not return home he lodged report on 21.01.2012 before Kothapet police station. His evidence also show that on 14.02.2012 he received information from the Sub-Inspector of

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Police, Kothapet about the death of Srilaxmi. When he visited the police station, the Inspector of Police showed the photographs of the dead body of the deceased, which he identified as that of her sister Srilaxmi. According to him, his sister wore gold thread and black beeds chain in her neck, but he did not particularly verify the gold ornaments worn by the deceased. In the cross-examination, he admitted that he did not disclose wearing of gold thread and black beeds chains at the time she left the hospital, in the First Information Report. 7) PW.2 is the husband of the deceased. According to him, on 19.01.2012 he dropped his wife at the hospital and thereafter, he went to attend his work. He deposed about informing PW.1 at 11.30 P.M. not returning his wife to home by then. He also deposed about calling PW.4 on 21.01.2012 and enquiring about his wife. PW.4 is said to have informed him that when she called, the deceased informed her that she was busy with a customer. He also speaks about receiving telephone call from the Sub-Inspector of Police, Kothapet on 14.02.2012 and identifying the body in the photographs shown to him. According to him, on 16.02.2012, when an inquest report was shown to him in the police station, he questioned about gold ornaments worn by his wife. Thereafter, on 17.02.2012, a Test Identification Parade of gold ornaments was held in Fancy Kalyana Mandapam wherein he identified the gold ornaments of his wife, namely two rows gold thread

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with pustelu, black beeds chain with locket, ear studs, two gold bangles and silver toe rings. His evidence also disclose that the deceased was in possession of cash of Rs.1,00,000/in her black purse, which was brought for payment of medical bill of her mother. He identified M.Os.1 to 9 as the articles of the deceased. M.O.6 is the cash of Rs.90,000/-; M.O.7 is the wrist watch; M.O.8 is the black colour purse; M.O.9 is the saree; M.O.10 is the blouse; and M.O.11 is two cell phones of the deceased. He was cross-examined by the defence counsel wherein he admitted that he was examined by the police on 21.01.2012. However, all the other suggestions given with regard to the identification of M.O.s were denied by him.

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PW.3 is a ward body at Amar Orthopaedic Hospital, Guntur. But, nothing turns on his evidence except that on 19.01.2012 between 9.00P.M. and 10.00P.M. the deceased came down from the hospital and requested him to keep the scooty bike in the cellar and gave the keys to be handed over to her father.

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PW.4 is the friend of the deceased, who is said to be a prostitute by profession. She also deposed that the deceased was a prostitute by profession. According to her, except prostitution, the deceased was not doing any business. On 19.01.2012 at about 10.50 P.M. when she called the deceased, she stated that she was outside with a company of customer in the prostitute business and will call her on the next day

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morning. She further deposed that she telephoned the deceased only to enquire about the health condition of her mother. She also deposed that Srilaxmi told her that she was in need of money and went out. One circumstance, which requires to be noted, is that PW.4, in her examination in chief, deposed that she came to know about the death of Srilaxmi on 22.01.2012 from the Sub-Inspector of Police, Kothapet.

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PW.5, who was running a juice shop in 4^th lane, Brodipet, Guntur, deposed that he knows the deceased Srilaxmi as she used to visit his shop. With that acquaintance, he requested the deceased to spend with him one night for with he has to pay Rs.2,000/- per night. He claimed to have telephoned to the deceased on 19.01.2012 at about 7.00P.M. to book her for that night, but she informed him that she was engaged by some other person during that night and promised to spend night on the next day. The suggestion that he did not telephone to the deceased on 19.01.2012 was denied by him.

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PW.6 is a resident of Tenali and was working as as Attender in the office of Assistant B.C. Welfare Officer, Tenali. According to him, he was the Vodafone customer having SIM Card No.7799108023. He claimed to have given it to his niece PW.7, who lost the said mobile phone about one and half year ago. Though it was informed to him, but he did not take steps to cancel the SIM card due to his busy engagement in office.

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PW.7 is the niece of PW.6, who deposed about losing the cell phone with SIM card, but did not give any report to the police about the loss of cell phone.

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PW.8 a crucial witness for the prosecution, was examined to show that on 08.01.2012 the accused requested him to bring two packets of fried rice from K & M Hotel and accordingly, he purchased two packets of fried rice and went to the address given by the accused. When he entered the house, he found a lady sitting inside and the accused introduced her as Srilaxmi. After handing over the fried rice packets, he returned to his residence. On 19.01.2012 at about 10.00P.M., he received a phone call from the accused asking him to bring tiffin, as Srilaxmi came to his house. Accordingly, PW.8 went to the house of the accused with two tiffin packets and handed over the same to the accused. The accused asked him to sit for few minutes, but he returned back to his house as his father may scold him if he is late. According to him, on 21.01.2012 at about 5.30 or 6.00A.M. received a phone call from the accused, who informed him that he was at Ravindrababu hospital, Nagarampalem as he received injury to his hand. On enquiry as to how he sustained injury, the accused is said to have informed that he murdered Srilaxmi and while stealing cash and gold ornaments from Srilaxmi, he received an injury to his left hand. Then, PW.8 disconnected the phone with a request not

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to tell all these things. According to him, on 20.01.2012, during evening hours, the accused came to his office and stated that he kept the dead body of Srilaxmi in his house and requested to help him in disposing of the dead body at a distant place to which he refused. The accused left the place, but, however, threatened him stating that if PW.8 discloses to anybody, he will face consequences like Srilaxmi. On 22.01.2012 PW.8 noticed a news item published about missing of Srilaxmi and also registration of crime in Kothapet police station. Due to fear he was in a depressed condition since then. When his father (PW.9) questioned about his condition, he informed to his father about the incident, and later his father took him to PW.10, who after hearing PWs.8 and 9, took them to the police station on 13.02.2012, where he explained the entire incident and thereafter, Ex.P.2 is said to have been lodged. The 164 Cr.P.C. statement PW.8 was recorded on 07.03.2012.

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In the cross-examination, he admits that for the first time on 13.02.2012, he disclosed about the incident to his father. According to him, he disclosed the incident on 13.02.2012 and on the same day, he approached the police station. All other suggestions disputing the supplying of tiffin packets, seeing the deceased in the house of the accused on 19.01.2012 were denied. A suggestion that ExP.2 came to be prepared at the instance of police station was also denied.

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PW.9, the father of PW.8, deposed about his son PW.8 running a Cargo Transport Agency at Koneru road, R. Agraharam. According to him, as his son was in depressed condition, he insisted him to disclose the reason for his depression and accordingly, on 13.02.2012 his son disclosed the entire incident.

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PW.10 is the person to whom PW.8 and PW.9 informed about PW.8 seeing the deceased in the house of accused on 19.01.2012 and also on earlier occasion. His evidence is to the effect that on 13.02.2012 PW.8 and PW.9 came to his house at about 7.00 P.M. and PW.8 informed him that accused, who is his friend, committed murder of woman and requested him to assist. He advised PW.8 and PW.9 to give a report to the police and a report was drafted by PW.8 at the residence of PW.10 and thereafter, all three went to the police station and submitted Ex.P.2 report.

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PW.11 is a Manager under commission agent at Mirchi Yard, Guntur. According to him, the accused is his neighbour since three months. The accused requested him to provide a loan of Rs.3.00 lakhs to discharge the finance amount taken by him for purchase of lorry in finance, but he did not do so. On 16.02.2012, the Inspector of Police along with others came to his house and informed that the accused killed a woman, threw the dead body by the side of Ongole Highway.

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PW.12 is a Goldsmith by profession and he knows the accused as he let-out his house to the accused. On 19.02.2012 PW.11 informed him over phone about the incident of murder.

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It is to be noted here that pursuant to a report lodged, PWs.23 and 24 conducted investigation in Crime No.29 of 2012 of Kothapet police station and collected call data vide Ex.P.22 and after completion of investigation, filed the charge sheet.

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The second set of witnesses are PWs.14, 15, 16, 21, 25 and 26. PW.14 the V.R.O. of cluster villages consisting of Kondamanjuluru, Bhagavanrajuvaripalem and Kallamvaripalem. According to him, on 23.01.2012 at about 7.00A.M. he received a telephone call from PW.13, a village servant of Kondamanjuluru about noticing a dead body packed in a plastic cover and bed sheet at a distance of 70 meters to Bhagavanvaripalem. He visited the place and found the dead body of a woman. He informed the same to Ponguluru police station vide Ex.P.4 report. Thereafter, PW.14 acted as a mediator for the observation of the scene and got the dead body photographed. M.Os.12 to 17 are the articles seized at the place and Ex.P.15 are the positive photographs. Ex.P.6 is the observation report. As stated earlier, PW.25, the Sub-Inspector of Police, on the strength of Ex.P.4 report, registered a case in Crime No.5 of 2012 vide Ex.P.30 FIR,

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while the subsequent investigation till it was handed over to Kothapet police station was done by PW.26, the Inspector of Police.

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As stated earlier, the prosecution is mainly relying upon the extra judicial confession made to PW.8, which led to lodging of another report vide Ex.P.2. Thereafter, recovery of some gold ornaments belonging to the deceased from the possession of the accused came to be made, which were said to have been identified by PW.2.

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Before dealing with these aspects, it would be appropriate to refer to the evidence of Post Mortem doctor, who was examined as PW.20. He is said to have conducted Post Mortem examination on the dead body of the deceased on 23.01.2012 at 3.30P.M. at Addanki. He noticed the following injuries:

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“A female body moderately built lying on its back. Total body highly decomposed and swollen. Plastic ropes are tied to the upper and lower limbs Tongue protruded. Both eye balls protruded. No cloths covered the body.

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External findings:

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i) Total body highly decomposed and swollen;

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ii) Blisters formation the body here and there;

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iii) Peeling of the skin noted;

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iv) Both eye balls protruded

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v) Tongue protruded

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vi) Laceration noted between right eye and ear measuring about 2” X 1” X ½” skin deep;

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vii) Laceration on right side of the chin measuring about 2” X ½” X ¼” skin deep;

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viii) Deep laceration on right side of the neck. Extending from tip of the hyoid bone to back of the neck, all muscles are cut, measuring about 8” X 2” X1/2”.

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ix) Sharp cut injury at angle of the right mandible measuring about 3” X 1 ½” X 1” bone deep. Fracture of right mandible noted;

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x) Laceration noted on throat about 4” X 2” X 1” skin deep

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xi) Multiple lacerations noted on left foot and right foot measuring about 2” X 1” X ½” each skin deep.

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Internal findings: Head and neck: Right mandible fracture noted. Brain Liquification noted. Neck muscles and vessels are cut. Hyoid bone preserved for expert opinion.

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Throax: No bone injury in the thoracic cage and spinal cord. Pericardium: Normal. Heart: congested cut section congested. Heart chambers filled with blood clots. Both lungs congested cut section congested. Diaphragm: Pushed up. Abdomen Stomach distended with gas and partially undigested food. Small intestine distended with gas. Large intestine: distended with gas and fecal matter. Liver congested cut section congested. Spleen Normal. Both kidneys congested cut section congested. Hysterectomy done, urinary bladder normal and empty external gential normal.

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A: Hyoid bone preserved for expert opinion;

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B: Skull preserved for super imposition.

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Opinion as to cause of death:

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a) Reserved pending report of A and B.

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b) The age of death is more than 48 hours prior to my post mortem examination.

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Ex.P.12 is the Post Mortem certificate dated 28.01.2012. I preserved hyoid bone and skull and sent hyoid bone for expert opinion. I received expert opinion from Dr. V. Krishna Murthy, Assistant Professor, Department of Forensic Medicine, Guntur, Medical College, Guntur and the opinion as follows:

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There is no antemortem or postmortem fracture of hyoid bone except post mortem loosening of both greater horns with the body of the Hyoid bone present.

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I also sent preserved skull for superimposition to the Asst. Director, APFSL, Hyderabad, and opined as follows:

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In view of the following reasons I am of the opinion that “the skull would have belonged to the person in the photograph as Item No.2B”

¶130

According to him, the death must have taken place more than 48 hours prior to his post mortem examination. After receiving RFSL report, he opined that the deceased appeared to have died of haemorrhage and cardio genic shock followed by cut injury. His evidence also disclose that there is no antemortem or post-mortem fracture of hyoid bone except post mortem loosening of both greater horns with the body of the hyoid bone present. He sent the preserved skull for superimposition to the Assistant Director, APFSL, Hyderabad, who opined that the skull in Item-1 could have belonged to the person in the photograph marked as item No.2b. At this stage, it will be just and proper to refer to the report of the Assistant Director, APFSL, which is Ex.P.14. A perusal of the said report would show that two items were sent to him, one is skull with mandible marked as Item-1 and another one colour passport size and one colour postcard size photographs of same female person marked as Items 2a and 2b respectively. Item No.1 was subjected to DNA profiling examination but there was no proper amplification of DNA

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from Item No.1 and no DNA report could be given. He took the natural size photograph of the skull marked as Item No.1, enlarged the same to its natural size and superimposed it on the face of Item No.2b. The outlines on face in item 2b and skull in item No.1 were found to be in good agreement. Hence, opined that item No.1 belonged to the person in the photograph marked as item 2b. It is no doubt true that the Assistant Director, FSL, was not examined. But, since it is an opinion given by the expert with regard to the superimposition of the body of Srilaxmi, we feel that nonexamination of expert is not fatal to the prosecution case. Having regard to the two reports and the evidence on record, it can safely be concluded that the dead body is that of Srilaxmi and the death was a homicidal one, which gets corroboration from the inquest report as well.

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Coming to the circumstances relied upon by the prosecution, as seen from the evidence available on record, PW.14 was informed about the dead body lying in the outskirts of Bhavanivaripalem by PW.13 on 23.01.2012 at about 7.00A.M., which is within a period of four days from the date of missing of a woman and within two days after the report was lodged at Kothapet Police Station. PW.14, the V.R.O. lodged Ex.P.4 report before PW.25, who, after registration of the case, handed over the same to PW.24. It may not be necessary to refer to the evidence of PW.26, who

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took over investigation after PW.25 registered the case in Crime No.5 of 2012 of Kothapet police station, but suffice to say that PW.26 took over the investigation on 23.01.2012, proceeded to the scene and conducted inquest on the very same day, sent the dead body for post mortem examination on the very same day. In his evidence, he categorically admitted that he received information about the registration of case in Crime No.29 of 2012 of Kothapet police station. Immediately, he submitted proposals to Superintendent of Police of Prakasam District to Kothapet Police Station, Guntur District. His proposal was accepted and Case Diary was transferred to the Kothapet police station.

¶140

His evidence shows that immediately after coming to know about the registration of a case in Crime No.29 of 2012 of Kothapet police station, the entire case was transferred to Kothapeta police station. This fact gets further corroboration from the evidence of PW.4, who categorically admitted in the cross-examination that she came to know about the death of Srilaxmi on 22.01.2012 from the Sub-Inspector of Police, Kothapet. It would be appropriate to extract the admission of PW.4, which is as under:

¶141

“Srilaxmi informed me that she was in need of money and went outside. I came to know about death of Srilaxmi on 22.01.2012 from Sub-Inspector of Police, Kothapet.”

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Therefore, from the evidence of PW.26 and the evidence of PW.4, two things have to be noted; firstly, that the SubInspector of police, J. Panguluru police station or the police of Kothapet police were aware about the death of Srilaxmi on 22.01.2012; and secondly, PW.26 transferred the entire Case Diary to Kothapet police station through Superintendent of Police, Prakasam District. But, it is strange to note that the evidence of Investigating Officers at Kothapet police station is silent on these issues. The Sub-Inspector of Police, Kothapet police station, in his evidence, deposed about the investigation conducted till 23.01.2012; the collection of call data on 23.01.2012 and the collection of cell phones etc. Thereafter, his evidence is silent with regard to the information received from J. Panguluru police station. PW.24, who investigated the case and filed the charge sheet, deposed as to what was done from 13.01.2012 only. It is not as if that the crime was pending with J. Panguluru Police Station till a report was given by PW.8 on 13.02.2012 disclosing the involvement of the accused in the crime, but the same was transferred long prior. Strangely, there is no material on record to show as to what happened after the case was transferred from J. Panguluru police station to Kothapet Police Station.

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At this stage, it will be useful to deal with the evidence of PW.8 with regard to the two circumstances, namely, “Last Seen” and the “Extra Judicial Confession”.

¶150

His evidence, as stated by us earlier, surfaced long after the incident. Though his evidence discloses lodging a report, registration of a crime as “woman missing” by 22.01.2012 itself, but he did not disclose to anyone as to what he has seen on 19.01.2012. The prosecution wants to prove the theory of last seen through the evidence of PW.8. According to him, on 08.01.2012 the accused requested him to bring two packets of fried rice to his house, pursuant to which he took two packets of fried rice to the house of the accused and at that time he noticed the deceased in the said house. This was on 08.01.2012. Ten days thereafter, again i.e. on 19.01.2012 at about 10.00 P.M. he received a phone call from the accused asking him to bring tiffin, as Srilaxmi is at his house. As directed, he went to the house with two tiffin packets and handed over the same to the accused. Though the accused asked him to sit for few minutes, he returned back. On 21.01.2012, he received a phone call from the accused informing him that he is in hospital as he sustained an injury to his hand. When enquired, the accused is said to have stated that he killed Srilaxmi and while stealing the gold ornaments from her, received an injury on his left hand. PW.8 disconnected the phone call asking him not to tell all these

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things. According to him, on 20.01.2012 during evening hours, the accused came to his office and informed him that he kept the dead body of Srilaxmi in his house and requested him to help in disposing of the dead body at distant place, for which PW.8 refused and asked the accused to leave the office. While leaving the office, the accused is said to have threatened him with dire consequences if he disclosed about the same to others.

¶155

It is to be noted here that the prosecution is relying upon this witnesses to prove the two things, one is last seen and the other is extra judicial confession said to have been made by the accused before PW.8 disclosing the commission of offence. It is no doubt true that the extra judicial confession, if made to a reliable person, can be made the basis to convict the accused. In the instant case, as seen from the evidence stated above, the accused is said to have disclosed to PW.8 about the commission of offence, namely keeping the dead body of the deceased in his house on 20.01.2012 and he sustaining injury to his left hand, while stealing the gold ornaments from the deceased Srilaxmi. But PW.8 kept quiet without informing the same to anyone though he admitted that he has been attending to his cargo business; that several persons used to come and sit in his office and have friends including childhood friends. The reason given by him for disclosing the incident on 13.02.2012

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i.e. nearly 20 days after the incident, is on an enquiry by his father as to why he is in depressed condition, which led to lodging of Ex.P.2 report, cannot be accepted. The reason given namely that he was in depression since then, appears to be unacceptable, more so, when the evidence shows that he has been doing his business regularly. There is no justification for him to keep quiet for 20 days without disclosing to any one the alleged confession made before him.

¶160

One other circumstances, which requires to be noted here is that on 20.01.2012 in the evening hours the accused came to his house and sought his help for disposal of the dead body, which was kept in his house, to which he refused and asked him to go away. At that point of time, the accused is said to have threatened him with dire consequences. It would be useful to extract the same in the words spoken to by PW.8 himself which is as under:

¶161

“On 20.01.2012 during evening hours, the accused came to my office and informed that he kept the dead body of Srilaxmi in his house and requested me to extend my help to throw the dead body at a distant place. Then I refused and asked him to go away. Immediately the accused left my office while threatening if I disclose the same to anybody I will face the consequences like Srilaxmi and left the office.”

¶162

Though the accused left the office of PW.8 by threatening him, it is strange to believe that the accused would have telephoned to him again on the next day morning

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at about 5:30 or 6:00 A.M. informing him about he sustaining injury while committing murder of Srilaxmi and stealing cash and gold. Even assuming it to be so, if really the accused sustained an injury at the time offence, PW.8 could have noticed the same when the accused came to his office on 2001-2012. His evidence is silent on this aspect. Therefore, the circumstance relied upon by the prosecution namely that the accused made an extra judicial confession before PW.8 and the accused was last seen in the company of PW.8 are not proved beyond reasonable doubt. It may be true that he lodged a report with the police on 13-02-2012, but in the absence of any reasonable explanation for the delay, the contents of Ex.P2 has to be viewed with suspicion and the possibility of it being brought into existence, as urged by the learned counsel for the appellant, cannot be ruled out. 32) The next circumstance relied upon by the prosecution is the call data. PW.23 is the investigating officer who initially collected the call data of the deceased. The phone number of the deceased as disclosed by PW.1 is 9885030078, while the phone number of PW.6 which he gave it to PW.7 is 7799108023. There is no evidence on record to show that this number 7799108023 is being used either by the accused or by the deceased. The telephone number of PW.4 as per the investigating officer is 9032045679. The call data of the deceased under Ex.P22 show that there were number of

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incoming calls from these two numbers. In fact, there appears to be another number of the deceased i.e. 9573495880. The evidence of investigating officer further shows that he addressed a letter to the Superintendent of Police Urban requesting him to furnish information about the use of SIM card bearing IMEI No.357916045432470. As per the information furnished by the Superintendent of Police (Urban), the last call recorded from SIM card number 7799108023 was at 9:13 P.M. on 19.01.2012. Basing on the above data furnished and the evidence of investigating officer, the prosecution wants to bring home the guilt of the accused by showing that there was constant communication between the accused and the deceased or that the calls went out from the phone number of the accused after the incident. 33) But strangely, none of the witnesses deposed about the outgoing calls from the cell phone of the accused. Further, as seen from the above evidence, the cell phone number of the accused is 9959679479, but, there is no evidence on record to show the number of calls, if any, between the accused and the deceased or from the accused and PW.8. The evidence, in our view, is as vague as anything. Further, the service provider was not examined to prove the report. For the aforesaid reasons, the call data particulars which are placed on record as Ex.P.2, in our view, may not be of any help to the prosecution. In fact, the Investigating Officer should have

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made a better effort in collecting the necessary particulars, more particularly, the call data of the accused also and then tried to prove the communications between the accused and the deceased or between the accused and PW.8.

¶175

The last circumstance relied upon by the prosecution is the identification of articles belonging to the deceased. It is to be noted here that PWs.1 and 2, who saw the deceased on 19.01.2012 at 9.30P.M. or 10.00P.M., did not speak about the gold ornaments worn by the deceased and also the cash if any which she was carrying. In fact, PW.1 in his crossexamination admits that he did not disclose about wearing of gold thread and black beeds chain by the deceased at the time she leaving the hospital. Similarly, the evidence of PW.2 also is silent with regard to the ornaments worn by the deceased at the time when he dropped the deceased at the hospital, which was in the afternoon. However, he claimed to have identified the gold ornaments in the test identification parade held in Fancy Kalyanamandapam near Gunta road. The evidence of PW.24, the investigating officer, show two things. Firstly, the observation of the court that the witness is not giving consistent answers even in the examination-inchief and he referring to Case Diary from page to page and answering questions after sufficient time and secondly, the manner in which the test identification parade was

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conducted. Insofar as the manner in which PW.24 gave evidence, the same is as under:

¶180

“the witness not giving consistent answers even in examination in-chief, referring CD from page to page and answering question after sufficient time….."

¶181

Secondly, his evidence shows that on 16.02.2012 i.e. nearly 28 days after the incident, the accused was arrested and pursuant to the interrogation, cash of Rs.90,000/- along with M.O.5 was recovered from the possession of the accused. While giving evidence about the seizure of M.Os.1 to 5, on the intervention of Public Prosecutor, PW.24 stated that the accused also produced black colour purse containing gold ornaments. Again the witness speaks of seizure of two gold bangles, two rows of gold thread, black beed chain, gold ear studs, silver toe rings, gold colour ladies wrist watch with black dial, and two cell phones of Nokia company. It would be useful to extract the relevant portion in the evidence of PW.24, the investigating officer, which is as under:

¶182

“After identifying the person as accused involved in this crime, I interrogated further and during interrogation he made a confession. I seized an amount of Rs.90,000/- (Rs.500/- notes denomination) from possession of accused and I also seized M.Os.1 to 5. On intervention of Public Prosecutor the witness stated that the accused produced black colour purse containing gold ornaments. Again the witness says two gold bangles, two rows of gold thread, black bead chain, gold ear studs, silver toe rings, gold colour ladies wrist watch with black dial, and two cell phones of Nokia company, I seized all the items in the presence of mediators.”

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The properties, which are put to identification, are (1) two gold bangles of about 20 grams; (2) two rowed gold Nanuthadu with sutrams of about 30 grams; (3) Gold black beed chain with stones locket of about 38 grams; (4) Ear hangings (jukalu/chunkalu) of about 4 grams and similar four articles. But, PW.2, the husband of the deceased, identified only gold and silver ornaments, M.Os.1 to 4 as belonging to the deceased. Further, the evidence of investigating officer shows that the accused produced black colour purse containing gold ornaments belonging to the deceased but the same was not subjected to identification. So, a doubt arises as to whether the gold ornaments which were recovered from the purse of the deceased are the articles that were subjected to test identification parade or the articles that were seized from the accused. It appears that the articles said to have been seized from the possession of the accused were not subjected to the test identification parade. There is no concrete evidence to that effect. 37) It is also to be noted here that the said test identification parade was conducted in the presence of PW.19, who in his evidence admitted that PW.2 identified the gold and silver ornaments i.e. M.Os.1 to 4 as belonging to the deceased. But, it appears that PW.19 acted as a panchayatdar to the police in another case as well and the other person, who acted as panch witness namely M.S.

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Murthy, was not examined. Be that as it may, these articles were alleged to have been seized from the possession of the accused on 16.02.2012 and there is no evidence on record to indicate that the seized articles were produced before the court. Without doing so, on the very next day, the test identification parade came to be conducted. At this stage, it would be just and proper to refer the evidence of PW.2 also, who in the chief examination itself, deposed that on 16.02.2012 he was shown the inquest report in the police station and at the same time, he questioned about gold ornaments worn by his wife. The record shows that the accused was also arrested on the very same day and only after PW.2 questioning the police about the gold ornaments worn by his wife, a test identification parade was held on next day i.e. on 17.02.2012. At this stage, the learned counsel for the appellant mainly submits that Rule 35 of the Criminal Rules of Practice has not been complied with.

¶191

Rule 35 of the Criminal Rules of Practice prescribe a procedure as to how test identification parade of the property has to be conducted. Time and again, it has been held by this Court as well as by the Apex Court that when the property is lodged before the court, identification of the same should be done in the court after calling for special identification marks of the property. The issue is no more res integra in view of the judgment of a Division Bench of the High Court of Judicature

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for the State of Telangana and for the state of Andhra Pradesh reported in Middela Parvaiah v. State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad¹ , wherein it is held that when once the Test Identification Parade of property was not conducted in accordance with the procedure prescribed under Criminal Rules of Practice, much credence cannot be given to the alleged identification of the said property by the witnesses.

¶196

In Jarapala Deepala @ Babu Rao and others v. State of A.P .² while dealing with the issue as to whether the test identification parade of the property was in accordance with the procedure, held as under:

¶197

“As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witnesses not yet called in. The said procedure of conducting identification parade in respect of the property has not been followed in this case, as admittedly the identification parade was not conducted in the Court of the Magistrate. Thus, it is clear that the test identification in respect of the properties are not conducted in accordance with the procedure prescribed in Criminal Rules of Practice. Therefore, much credence cannot be given to the alleged test identification of the properties.”

¶198

A reading of the above two judgments and Rule 35 of Criminal Rules of Practice, it is evident that if test identification of properties is not conducted before the Court

¶199

1 2016 (3) ALT (Crl.) 373 (DB) (AP)

¶200

2 2005 (2) ALD (Crl.) 818 (AP)

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and if the properties mixed are not identical to the properties seized, the same does not attain any importance. Therefore, in the absence of any descriptive particulars given by P.W.2 except stating that his wife wore gold ornaments and as identification of properties came to be conducted contrary to Criminal Rules of Practice, which were held to be mandatory by the Apex Court, much credence need not be given to the identification of the properties by family members. Hence, this circumstance in the chain of events, cannot be said to be proved beyond doubt. Even the presumption under Section 114 of the Indian Evidence Act cannot be invoked when once the identification is to be rejected.

¶205

For the reasons referred to above, we hold that circumstances relied upon by the prosecution are not proved beyond doubt, and they do not form a chain of events connecting the accused with the crime. Hence, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.

¶206

In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the accused in the judgment dated 14.05.2014 in S.C.No.8 of 2013 on the file the Sessions Judge, Guntur, for the offences punishable under Sections 302, 201 and 392 IPC is set aside and he is acquitted for the said offences. Consequently, the Appellant shall be set at liberty forthwith, if he is not required in any

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other case or crime. Fine amount, if any, paid by the Appellant/accused shall be refunded to him.

¶211