The State of Telangana Rep by Pp., Vs Potham Jagannadham Naidu ,Jagan, Nalgonda and Anr.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE ELEVENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

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CRI MINAL APPEAL NOS: 405 OF 2016 AND 1262OF 20'17

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CRIMINAL APPEAL NO: 405 OF 2016

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Appeal under Section 374 (2) ot Cr.P.C. against the Judgment daled 22-03' 2016 made in S.C.No.374 of 2015 on the file of the Court of the Metropolitan Sessions Judge, Hyderabad.

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Between:

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Mr Potham Jagannadham Naidu @ Jagan, S/o. P. Chinna Babu, Age 37^yrs, Occ. Advocate, Presently lodged at Cherlapally Jail

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...Appellant / Accused No 1 AND

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The State of Telangana, Rep. by Public Prosecutor, High Court of Judicature at Hyderabad

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...Respondent / Complainant

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lA NO: 1 OF 2024

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Petition under Section 3Bg⁽¹⁾ of Cr.P.C.^praying thatⁱⁿ the^{circumstances} stated in the affidavit filed in support of the^petition, the^{High Court maybe} pleased to suspend the sentence and enlarge the petitioner/accused No.1 on bail by suspending the sentence imposed in S.C.No.374 of^{2O15 by the Hon'ble} Metropolitan Sessions Judge, City Criminal Court. Hyderabad' dated^2210312016 until the disposal of the above appeal.

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Counsel for the Appellant Sri lndira

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Counsel for the Respondent

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Sri D Arun Kumar Additional Public Prosecutor

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CRIMINAL APPEAL NO: 1262 OF 2017

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{

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Appeal under Section 378 (3) & (1) of Cr.P.C. against the Judgment dated 22_ 03-2016 made in s.c.No.374 of 2015 on the file of the court of the tvletropolitan Sessions Judge, Hyderabad.

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Between:

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The State of Telanoana. Rep. by the public prosecutor, High Court at Hyderabad

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...Appeltant / Complainant

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AND

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1 Potham Jagannadham Naidu @ Jagan, S/o. p. Chinna Babu, Aqed 36 vears. Oc_c.4dvocate/Typist, Rl/o. Ftai-No.403: ruanoavan-m Apirtri"iti, nttri,"ri,^"' R.R.District, N/o.^pvron Viilage. peddavoora lr/andii, NaigonJ, iliiiriit^--"

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2 KalluVijaya @ lijaya Reddy, Wo. Eduta Sudhakar Reddy, Aged 45 years, Occ. Business, Rt/o. H.No 502. Saraswathi Block, Opp T/Stu"Oio,^- '--^-' Ramanthapur. Ganeshnagar. Hyderabad

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...Respondents / Accused

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Counsel for the Appellant : Sri D Arun Kumar Additional Public^prosecutor

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Counsel forthe Respondents : Sri Thomas Lloyd

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The Court delivered the following Common Judgment :

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HON'BLE SRI JUSTICE K.SUR"ENDER

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AND

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HON'BLE SRI JUSTICE ANIL KI'MAR JUI{ANTI

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CRIMINAL APPEAL Nos.4O5 OF 2016 AND 1 262 0F 2017 COMMON JUDGMENT:

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1 . Accused Nos. I and 2 were tried for the offence of murder by the Metropolitan Sessions Judge, Hyderabad, in SC.No.374 /2015, wherein, A1 was convicted and ,,A'2 was acquitted.

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Criminal Appeal No.405 of 2Ot6 is llled by Accused No.1 questioning his conviction recorded by the Metropolitan Sessions Judge, Hyderabad, in SC.No.37 4 /2015 for the offences under Sections 3O2, 379 and 201 of the Indian Penal Code and sentencing him to undergo Imprisonment for life and to pay a fine of Rs. 10,000/- for the offence under Section 302 of IPC; to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,0O0/- for the offence under Section 379 of IPC; to undergo rigorous imprisonment for a period of seven years and to pay a hne of Rs.l0,0OO/- for the offence under Section 201 of IPC.

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Criminal Appeal No.1262 of 2Ol7 is liled by the State questioning the acquittal recorded against Accused No.2 by the

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Metropolitan Sessions Judge,^{Hyderabad,in SC.No.374} /2OL5^for the offences under Sections^{120-8, 364 read with 109, 3O2 read} \r\rith 109, 380 read with^{109 and 2O1 of the Indian Penal Code'}

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Since both the appeals^{are questioning the verysame} Judgment of the Sessions^{Court, both the appealsare disposedoff} by way of this common^Judgment.

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PW. l-defacto complainant, is^{the husband ofdeceased-} K.Sunitha. PW. 1 went to the^{PoliceStation on 18-O6.2014and} lodged a complaint before^{the Police which isEx.P1. Inthe} complaint, PW.1 stated that^{the deceased,his son-PW.2 and his} daughter-PW.3 were^{residing in Bapunagar, Ambepet,Hyderabad.} PW. 1 was working in Bihar^{and he used to visit the house once in} every two months. PWI also^{stated that, two months earlier,the} deceased received an^{obscene message on her mobile phone} No.8978099333 from another^{phoneNo.9O10927814. After} receiving the obscene message,^{PW.2-son of the deceasedcalledthe} said number and reprimanded^{him. PW. Ivisited Hyderabad in} April, 2014 and returned to^{Bihar on 14.O5.2014'In the eveningof} 16.06.2014, PW. I received a^{messagefrom his wife's (deceased)}

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phone number stating that she was eloping with someone and asked PW. 1 to take care of PWs.2 and 3 (children of deceased). A message was also received by PW.2 (son) to his phone number saying that the deceased was leaving the house and asked PW.2 to take.care of PW.3. Attempts were made by PWs.1 ar,d 2 to contact the deceased's phone, however, it could not be reached. PW. 1 called up PW.2 and PW.2 informed PW. 1 that the deceased informed PW.2 that she was going to see a doctor at Mehdipatnam on Monday i.e., on 15.06.2014. PW. 1 then came to Hyderabad on 18.06.2014 and directly went to Amberpet Police Station and lodged a written complaint. He expressed in the complaint that he suspects the person who sent the obscene message, two months earlier, as the person responsible for deceased's missing.

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PW.25-Investigating Officer registered the case as homan missing' and the investigation was taken up by PW.26-Inspector. PW.26 recorded the statements of PWs.1 to 3 and a,lso informed the other police stations. The call details of both cell phone numbers of the deceased and suspect were called for and alalysed. The ce11 phone of the deceased was found to be used by PW.4 on the basis of the IMEI Number of deceased's mobile. PW.4 was then

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questioned by PW.26, and PW.4 stated that he found the cell^phone with the deceased's SIM number, however, he threw the^deceased's SIM away and inserted his own SIM vide^{No.964O217862, in} deceased's mobile. PW.26 further found that^{the number belonging} to suspect belonged to T.Kumara Swamy-PW.S.^{Upon investigation,} it was revealed that PW.5 was an accused and Crime^{No. 133/2014} under Sections 3, 4 and 5 of PITA Act,^{was registered againsthim} in Sanathnagar Police Station. PW.5's cell^phone with^SIM No.90iO927814, was seized by the Sanathnagar^Police.

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Based on PW.S's statement, PW.26^questioned PW.B^{who was} working as an Inspector in Sanathnagar Police Station.^PW.S identified Accused No.1 as the^person who^was an^{Advocate and} working as a private typist in the Sanathnagar Police Station. According to PW.S, he ca-lled PW.S ald another to the Sanathnagar Police Station, in relation to the crime registered against them, and PW8 stated that he seized PW5's mobile with SIM No.9010927814 in relation to the case. While PW.B was^pre-occupied with the investigation, A 1 took the SIM from PW.5's^phone without knowledge of PW.8. PW.8 later found that the SIM card^was missing and asked A1, who promised to return it, however, PW.8

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couid not recover the SIM card from A1. PW.B further informed PW.26 that A1 wanted to sell gold ornaments. On 23.06.2014, PW.S went along with A1 to Vijay Kumar Shankarlal Jewellers, Basheerbagh, and with the assurance of PW.B, the shop owner purchased Jewellery from A1 for Rs.3,85,000/-. From the said amount, A1 paid Rs.1,35,000/- to PW.S to settle a previous hand ioan and kept the remaining cash with him.

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B. On O9.O7.2014, A1 was apprehended by PW.26 on the basis of PW.S's statement that the SIM number 9010927814, which allegedly belonged to the suspect, was with A 1 . PW.27-lnspector interrogated Accused No.1, and Accused No.1 allegedly confessed that he committed the murder of the deceased at the instance of A2. A2 and PW. l-husband of the deceased, were previously business partners and they had differences in between them.

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On the basis of Al's confession, PW.27 and other Police Personnel searched the flat of A1, which is a pent house situated at third floor, Hyderguda, Shivanagar Colony, R.R.District. PW.27 found blood stains and spatters in the bath room. The scene was preserved. A1 then took PW.27 to Attapur area and recovered three

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mutilated parts of the dead body of the deceased from the Moosi river. The remaining parts of the body could not be iocated. On the basis of the recovered body parts, A1's confession and observation of scene, the complaint which was registered as ,rzoman missing' was altered to Sections 120 (B), 364, 3O2,380, 2O1 of IPC. A2 was a,lso arrested on lO.O7.2O14 and she also confessed to abetting the crlme

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After the arrest of A2 PW.27 accompanied by police personnel and PW. 13, proceeded to collect evidence from the flat of A1. There, M.O.7-hand bag of the deceased was found in which MOs.i1 & 12-nail polish, M.O. l3-bangles, M.O.14-EPIC card of the deceased were found. Scene of offence panchanama was conducted, thereafter, PW.27, along with mediators, went to the Mortuary ald concluctcd inquest panchanama. Thereafter, the body was sent for postmortem examination, and during autopsy, PW24 preserved the femur bone and sternum bone of the deceased for DNA test.

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1 1. Police custody of A1 and A'2 was ordered by the Court from 16.07.2014 to 79.O7.2014. Pursuant to the confession, PW.27 went

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to gold shop of PW. 19 and recovered the MOs.l to 6, jewellery of the deceased, which was sold by Al in presence of pW.g.

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PW.22-Branch Manager, ICICI bank provided the bank transaction details by providing the account statements of Al and A2 to PW.27. PW.23-tax consultant was also examined who explained regarding the disputes in between pW. 1 and A2.

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The material objects which were collected at the scene were sent to FSL. On 21.07.2014, pW.2Z collected the blood samples of PW.3-daughter of the deceased and Rajesh (brother of the deceased). The samples were sent for DNA test. The FSL report proved that the mutilated body parts, recovered from the Moosi river, are that of deceased.

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The case as projected by the prosecution is that Al was working as a private typist in various police stations in Hyderabad and Cyberabad. PW. I and, A2 were business partners in a pharmacy company and they together took a bank loan of Rs.2 crores. Disputes arose between PW. 1 and A2 in their business dealings. A,2 suspected that PW. I misappropriated the loan amount instead of developing the company. In Novembe r, 2OIl , A2

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lodged a complaint against PW.1 accusing PW. I of committing theft of plant and machinery from their company. The complaint was registered by Kukatpally Police, but later closed for 'lack of evidence'

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When A2 visited Kukatpally police, during the ongoing investigation in her complaint, she met A1, who was working as a typist in the Police Station at that time. A2 informed A,1 about the disputes and also sought help of Al to force PWl to agree to a compromise and recover amount from PW. 1. A2 promised a share in the amount recovered by Al

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A 1 also worked in Sanathnagar Police Station typing case files for PW.B. In the first week of April, 2O14, Al visited the scene of a murder being investigated by Sanathnagar Police Station There, A 1 left a slip that 'Kolthur Krishna warned me' with the intention of implicating PW. 1 in the murder. In April, 2014, A7 went to the police station and PW.8 informed Al that he would bring PW. 1. PW.1 denied involvement in the murder case, and he was later let off. PW. 1's famiiy members then questioned A,2 about the harassment and involvement of PW. I in a false case. Further,

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according to the prosecution case A2 instigated A1 to trap the wife of PW. 1 i.e., the deceased. Accordingly, A1 trapped the deceased, thereafter A1 took the deceased to his flat, killed her and cut her body into parts and threw them in Moosi river at Attapur

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17 . On examination of the bank account of A2, a deposit of Rs.2,50,000/- was made into .A2's account. The prosecution intended to rely on the said ground of credit made to her account, to establish that this money was received from PW. 19, who purchased the Jewellery from A1

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The chain of events relied on by the prosecution are:

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i) On 16.06.2014, A1 took the deceased from her house which was witnessed by PW.3-daughter of the deceased.

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ii) On 16.O6.2014, PWs. i , 2 and 6 received messages on their phones from the phone number ofthe deceased.

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iii) The cell phone details of the two numbers i.e., 8978099333 {deceased's^{phone number),9OlO927 814 (phone number used by} ,A.1) were collected and on the said basis, PW.4 was identified as the person who was using the cell phone of the deceased having SIM

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i.e., 8978099333. Cell phone number 9010927814, was found^to be in the name of PW.5. PW.5 stated^{that whiie he was in the police} station, his cell^phone was seized by^PW8 in relation to the^case registered against him

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iv) A2 became friendly with A1^when she^visited Kukatpaliy^Police to lodge complaint against PW.^1.

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v) Celi phone Number 9010927814 was then used by ,{1,^who seized the same from PW.B's table, to contact the^deceased.

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vi) PW.B informed that A1 had sold certain^jewellery and the said jewellery was recovered from the shop of PW. 19.

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vii) A1 was arrested and at his instance, body^parts were recovered from the Moosi river and he was then taken to his pent house, where incriminating material i.e., blood spatter, hand bag of the deceased, etc., were found.

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viii) The DNA test confirmed that the mutilated body parts belong to the deceased

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ix) After the Jeweilery was sold by A1, Rs.2,50,000/- was deposited into the account of A2.

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'J.4

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According to the evidence of PWs. l, 2 and 6 they received message from the deceased on 16.06.2014 after which the cell phone of deceased was switched off. PW.2 stated that on 15.06.2014, the deceased told him that she was going to see a doctor at Mehdipatnam. Though PW.2 stated that he left for college on 15.06.2014, the same was a Sunday, and he stated that he received a message from the deceased asking PW.2 to take care of PW.3. PW.2 also stated that on 15.06.2014, the deceased went missing. The testimony of PWs.l, 2 and 3 when considered, it creates doubt whether the deceased went missing on 15.06.2O14 or 16.06.2014. Further, the messages that were allegedly sent from the deceased's phone number to PWs.l, 2 and 6 were not retrieved from their cell phones. Even the copy of the text messages from deceased was not Illed. It is the oral testimony of these witnesses that they received messages, however, no evidence was collected by the prosecution to substantiate that messages were sent to pWs. l, 2 and 6 from the cell phone of the deceased.

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The complaint was filed by PW. I on 18.06.2014, however, it reached the Court on 20.06.2014, though, it is admitted that the Court was only 2 k.ms. away from the police station. It is also

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doubtful as to why none of the family members of the deceased i.e., her brother, mother, admittedly staying in Hyderabad, did not choose to lodge complaint with the Police regarding the deceased missing from her house.

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The phone number^g}log27al4 was the number from which phone calls were made to the phone number of the deceased. From the said phone number i.e. 9010927814, two months prior, an obscene message was received to the phone number of the deceased, however, the said details of the message were also not collected during investigation. PW.5 was identified as the owner of the said SIM 9010927814. However, PW.5 stated that his cell phone was seized when he went to the Sanathnagar Police Station. The cell phone of the deceased was found with PW.4. The prosecution did not provide any proof that the cell phone number 9010927814 was used by the Accused No. 1/appellant, by f,rling the relevant cell phone records showing the location associated with Al. To further worsen the situation, the prosecution did not file any documents to show that PW.5 had obtained SIM bearing No.90 109278 14 by collecting the application form given to the service provider while tracking the SIM card with cell phone

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No.9O1O927814. Once no proof is piaced on record to substantiate that PW.5 had taken the SIM 9OlO927Bl4, the version of the prosecution that A1 stole the SIM from the cell phone of PW.5, when the same was seized by PW.B, also becomes doubtful.

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The prosecution has placed heavy reliance on the evidence of PW.B to connect the dots. According to PW.8, he stated that he knew .A1 and A1 approached him to sell the gold jewellery belonging to his relatives. PW.8 took Al to PW. 19 shop where A1 sold the gold for Rs.3,85,000/- and handed over Rs,1,35,0O0/- to PW.B. PW.8 further stated that he came to know that A1 was involved in the murder of the deceased and the gold sold by A1 belonged to the deceased. However, PW. 19 did not issue any receipts for the sale ol Jewellery i.e., MOs. 1 to 6. PW. 19 in his cross-examination admitted that he issues receipts for every transaction, however, there were no receipts hled for the gold allegedly sold by Al through PW.B. Neither the documents were produced, nor the CCTV footage from the shop of PW. 19 was filed. PW. 19 further claimed that all the transactions are mentioned in the registers, however, neither the registers, nor the copies of the register for the relevant transaction were seized by the police. In

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the background of the admissions by pW. 19, there arises any amount of doubt regarding the correctness of pW. 19,s version that A1 sold the gold when brought by pW.g. pW.g is also a police officer. It appears that pW.B had influenced pW.19 to state against A1 that PW. 19 had purchased gold from A1.

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PW. 1 stated that he identified MOs.l to 6, gold ornaments. However, PW. 1 did not provide any proof to show that MOs.1 to 6 belong to the deceased. No purchase records were filed, nor any of the earlier photographs were filed to show that the deceased was wearing any of the jewellery. MOs.1 to 6 were also not identilied in accordance with the procedure laid down under Rule.34 of the Criminal Rules of practice.

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There is a deposit of Rs.2,5o,000/_ in the account of A2 on 24.06.2014. It is intended by the prosecution to be a connecting link between the sale of Jewellery of the . deceased and the money being deposited into A2,s account. As already discussed, the prosecution failed to prove that MOs.l to 6 belong to the deceased and that it was sold by A1 to pW. 19 who handed over cash. Further, out of cash received from pW. 19, according to pW.B, A1

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paid an amount of Rs. 1,35,O00/-. The alleged details of pW.B giving loan of Rs.1,35,0OO/- to A1 were not stated, nor any documents were filed to substantiate the same.

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PW. I 1 's services were taken by the Investigating Officer to recover the body parts from Moosi river. After the body parts were recovered, the body was shifted in the vehicle of pW. 10. pW.20 was examined who runs a kitchenware shop in Erragadda, Hyderabad. However, he turned hostile to the prosecution case. The prosecution relied on his evidence to show that the Butcher knife, which was allegediy used by .,A.1 to dismember deceased,s body, was purchased from his shop. Since pW.2O turned hostile, the said circumstance of buying the butcher knife by A 1 cannot be considered. According to pW.27, a red colour Maruthi car was seized on the basis of A1's confession. From there they went to A1,s apartment and the scene was preserved. The case of the prosecution is that Al used his car to transport the body parts of the deceased after he severed the body. However, Al,s car was not sent to FSL for the purpose of examination.

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The knife-M.O. 10 which was the alleged weapon used in mutilating the body of the deceased was also not sent to FSL.

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27 . On O9.O7 .2O 14, body parts were recovered from the Moosi river pursuant to the confession made by 41. The Police also went 1n to the scene of offence on O9.O7.2O 14. The handbag M.O.7, which MOs.11 to 14 were found was identified as the bag of the deceased and it was recovered from the house of the appellant-Al on 10.07.2014. It is suspicious as to why PW.27 did not find M.O.7, bag of the deceased in the flat of the appellant on O9.O7.2014 and found the same on 10.07.2O14. If at all A1 had taken precaution to wipe off evidence in his house after mutilating the body, the presence of bag of the deceased becomes doubtful, as why would A1 keep the bag in the house for a period of nearly 15 days. More so, in the background of the Police not finding the bag on 09 .O7 .2O 14 when they initially visited the flat of A I , and recovering the same on 7O.O7.2O 14 with the EPIC card of the deceased

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The evidence of last seen is also doubtful. As already discussed, PW.2-son of the deceased stated that the deceased

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informed him that she was going to hospital on 15.06.2014, after which she was missing, however, PW. 1 stated that deceased sent a message on 16.06.2014. PW.3 is the daughter of the deceased, who stated that she saw the deceased leaving with A1. Admittediy A1 was a stranger and PW.3 admitted that her school starts around 8:00 or 8:30 A.M. However, A1 picked up the deceased around 9.30 A.M. So, PW3's presence at the house during 9:30am is doubtful. None of the neighbours of the deceased were examined. Further none of the neighbours of the deceased or anyone had seen the deceased with the appellant/A 1 at any point of time. There is absolutely no evidence which is produced by the prosecution to show that the deceased and the appellant met in the flat of the appellalt or at any other place. It was not ciarified that at any point of time both the numbers of the deceased and the appellant were found under one tower location. The entire version of the prosecution rests on the call records to establish relation in between ,,A.1 and the deceased. No single witness had seen them together. The claim that number 9010927814 was allegedly used by the accused was not proved. It was also not proved that PWS was the owner of the SIM card No.9010927814. No assumption carr

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be made that PW.S's cell^phone with SIM^{was seized} at the^Police Station, and the SIM from the^{phone was} then^picked up^{by A1 and} A1 started using the SIM card of PW.5 to communicate with^the deceased.

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Ex.P24 is the FSL report dated 26.11.2014. The said report does not mention that the hair which was recovered from the house of the appellant were of human origin. Further, no DNA test was conducted to connect the seized hair or the blood stains seized to be that of the deceased. The DNA report, was marked through PW.27 , which is Ex.P25. According to the DNA report, the report was prepared on 25.O2.2015 and dispatched on 13.03.2015. However, in the first enclosure of the DNA report, at the bottom of the print of the report, the date mentioned is Friday, June 07, 2013, 03.34 p.m. The Assistant Director, B.Phani Bhushan was called to the Court to clarify the discrepancy regarding the date. The said B.Phani Bhushan appeared before the Court on 2O.O1.2O25 and stated that there was a printing error in the Electropherogram and the date was wrongly reflected in the report. A letter was also produced by B.Phani Bhushan, Assistant Director who signed on Ex.P2S-FSL report. The said letter was addressed to

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the Public Prosecutor by Dr.G.Pandu who is the Assistant Director, DNA section, TG FSL. In the said letter addressed by G.Pandu, it is mentioned that the DNA report was prepared on 25.02.2015 and dispatched on 13.03.2015, however, there is an error that occurred in the date, and that 'Fri, June 07, 2Ol3' was wrongly printed. In the letter, Dr.G.Pandu is apologetic for the error

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The letter dt.2o.Ol.2025 addressed by Dr.G.Pandu reads as follows:

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"To , The State Public Prosecutor, High Court of Telangana, Hyderabad. Respected Sir,

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20 .O t .2025

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Sub: Date error in electropherogram of FSL vide

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ille No.DNA/327 /2014, Req.Reg.

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Rei Lr.Crl.a.No .4O5 /2016, Dt.O7 .O1.2025.

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As the subject cited above, the FSL vide fi1e No-:DNA/327 /2014 has a printing error in the electropherogram. The date printed was "Fri, Jun 07, 2013, 3:34 PM" which is wrongly printed as there was an issue with the settings of the printer due to which this error was occurred.

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According to the FSL Fi1e, the DNA report was prepared on the date "25.02.2015" and was dispatched on date "13.03.2015". I kindly request you to read the date "Fri, Jun 07, 2Ol3 03:34 PM" as "25.O2-2O15". the concerned Assistant Director was transferred to Andhra Pradesh FSL at Mangalagiri during the bifurcation.

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I kindly apologize for the error occurred arrd request you to accept my apolory.

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Thanking you

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Yours Sincerely,

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Dr.G.Pandu, Assistant Dlrector,

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DNA Section, TGFSL." 31. Apologr by the expert cannot form basis to accept the FSL report. It is not satisfactorily explained by either the Assistant Director B.Phani Bhushan Rao who appeared in Court or Dr.G.Pandu in the letter as to the reason for the error by providing necessary details ar:d/or documents. An apologz, in no way can be considered by the Court to condone the mistake, and to read the FSL report in favour of the prosecution.

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The prosecution did not examine either Dr.G.Pandu or B.Phani Bhushan, Assistant Director of the AP FSL in the Court during trial. No reasons are given as to why they were not examined when there is a discrepancy of the date being found on the DNA report, falsifying the version of the prosecution in its entirety. The incident happened in the year 2Ol4 and the report underneath shows the date as Friday, June O7, 2013. The Investigating officer ought to have sought clarification from the FSL at the eariiest point of time. After the Assistant Director was summoned to the Court, the only statement he made before us is that there was some error for a period of 3 to 4 months at the relevant time in the office computers, for which reason, the date

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was wrongly printed. No record was produced to show that there was any kind of error during the relevant time. As already discussed, a casual statement that discrepancy was due to ari error carnot be accepted.

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The basis to connect that the body parts which were found in the Moosi river belong to the deceased, is the DNA report. The said Iinding in Ex.P25 which was marked through the Investigating Officer cannot be accepted in the present facts of the case when there is a glaring discrepancy in the date.

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34 . Section 293 of Cr.p.C reads as follows:

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"293. Reports of certain Government scientific experts.-(1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, tial or other proceeding under this Code.

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(2) The Court may, if it thinl<s frt, summon and examine any such expert as to the subject-matter of his report:

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(3) Where a:ny sqch expert is summoned by a Court, and he is unable to attend persona.Iy, he m.y, ur]l"ss the Court has expressly directed him to appear personally, depute any re-sponsible officer working with him to attend thi Court, if such oificer is conversant with the facts ofthe case arrd cal satisfactorily depose in Court on his behali

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(4) This section appiies to the following Government scientilic experts, namely:- (a) any Chemical Examiner or Assistant Chemical Examiner to Government; 1

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(b) the Chief Controller of Explosives;]

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(c) the Director ofthe Finger Print Bureau;

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(d) the Director, Haffkeine Institute, Bombay;

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(e) the Director [, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

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(f) the Serologist to the Government;

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(g) any other Govemment scientific expert specified, by notihcation, by the Central Government for this purpose."

¶137

As seen from the provision, a report sent by Assistant Director of State FSL may be used as evidence during trial. In view of the discrepancy, the trial Court ought to have summoned the concerned Expert to depose and clarit/ regarding the discrepancy in the report. Without the same, the FSL reports Exs.P24 and P25 were marked by the investigating officer-PW.27.

¶138

The entire case as discussed above is on the basis of circumstantial evidence.

¶139

The Honourable Supreme Court in Sha.nkar a. Stote of Maharashtrar held as follows;

¶140

"ln the decision of Prakash u. State of Rajasthan (2013) 4 SCC 668, this Court took note of the following principles

¶141

12023 SCC OnLine SC 258

¶142

26

¶143

laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda u. State of Maharashtra (1984) 4 SCC 116:,

¶144

'153. A close analgsis of this decision utould_ show that the follouing conditions must be ful,fttted. before a case against an accused can be said to be fultg established.:

¶145

(l)The circumstances from uhich the conclusion of guilt is to be drautn should be fullg established. It mag be noted here that this Court indicated. that the circamstances concerrled 'must or shnuld., and. not 'mog be' established. There is not only a grammatical but a legal distinction between^,may be proued' and 'must be or should. be proued., as was held bg this Court in Shiuaji Sahabrao Bobade u. State of Mahorashtra [(1973) 2 SCC 7931 where the follotaing obseruations were made:

¶146

......"certainlg, it is a pimarA principle that the accused- must be and. not merelg may be guiltg before a court can conuict and the mental distance between 'mag be' and 'must be' is long and_ diuides uague conjectures from sure conclusions',

¶147

(2)The facts so established should be consistent onlg wtth the hypothesis of the guilt of the accused,

¶148

21

¶149

that is^{to saA,tLLeg shoutdnot be explainableon} any other^{hgpothesisexcept that the accused is} guiltY,

¶150

(3) The^{circumstances should be of aconchtsiue} nature and^tendencg '

¶151

ft)Theg^{should exclude euery possible hgpothesis} excePt^{the one to be Proued'and}

¶152

(5) There^{must be a chain of euidenceso complete as} not to^{leaue ang reasonableground forthe} conclusion^{consistentl1)ith tlle itracence of the} accused^{and rrutst show that in allluman}

¶153

probabititg^{the act must haue been done bg the} accused'

¶154

These fiue^{goldenpinciples,ifute mag sag so'} constitute^{the panchsheelof the ploof of a case based on} ar cumst^{antiale uidence'"}

¶155

As^{observed by the HonourableSupreme Court'every} circumstance^{has to be provedby theprosecution beyond} reasonable^{doubt The following circumstances were considered to} estabrish^{the prosecution,sfailure in proving the case beyondthe} reasonable^doubt:

¶156

i) It is^{not establishedwhether the deceasedwent missing on 15th} or 16th^ofJune,2014'

¶157

28

¶158

ii) No evidence was placed to show that at any point of time, A1 and PW. 1 met.

¶159

iii) No evidence was placed to show that phone No.9010927g14 was used by the appellant and there is only an assumption that the SIM from the cell phone of PW.S was taken away by the appeliant and used.

¶160

iv) PW.5 though examined, could not prove that he has taken the SIM card and no application for obtaining SIM by pW.S was collected during the course of investigation.

¶161

v) PW.8 stated that the appellant sold the gold with his help. The said gold was sold to PW. 19. However, though pW. 19 states that every transaction is recorded, the transaction pertaining to the sale of the alleged gold by the appellant was not placed before the Court.

¶162

vi) M.Os. 1 to 6 which are the Jewellery of the deceased was not proved to be that ofthe deceased. No Test Identification parade was conducted in accordance with Rule 34 of the Criminal Rules of Practice.

¶163

29

¶164

vii) The hair and blood collected in the flat of the appellant were not proved to be that of the deceased.

¶165

viii) The car in which the body was allegedly transported and the M.O.10-knife, allegedly used to mutilate the dead body, were not sent to the FSL.

¶166

ix) the FSL report, trx.P25, which shows the result of the DNA analysis, cannot be accepted.

¶167

In view of the said infirmities in the case of the prosecution, the circumstances relied on by the prosecution are doubtful and is bound with unexplained inconsistencies. Considering the inconsistencies in the case of prosecution, and the circumstances not being proved by the prosecution beyond reasonable doubt, it is established that there is absolutely no connecting link which forms a complete chain to unerringly point towards guilt of the appellant. 40. Accordingly, Crl.A.405 of 2016, filed by Accused No. 1 is allowed and Appellant-A I is acquitted. The conviction and sentence recorded by the Metropolitan Sessions Judge, Hyderabad, in SC.No.374l20l5 for the offences under Sections 302, 379 and2Ol of the Indian Penal Code, is set aside. Since the appellant-A I is in

¶168

30

¶169

jail, he shall be reieased, forthwith, if not required in any other C SC.

¶170

Cr1.A.No.1262 of 2OI7 filed by the State questioning the acquittal recorded against Accused No.2, is dismissed in view of the acquittal of A1.

¶171

SD/- K SRINIVASA RAO, JOINT REGISTRAR:

//TRUE COPY//

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SECTION OFFICER

One Fair C.gpY_!g the Hon,ble Sri Justice K. Surender (For His Lordship,s Kiil p;;;ii

¶177

One Fair Copy_to the Hon,ble.Sri Jgstice Anil Kumar Jukanti (For His Lordship,s Ki;J p;;;;ii.

¶178

To,

¶179

1. The Metropolitan Sessions Judge, Hyderabad (with records, if any) The Station House officer, nmolrpei rslirl.jrcoro'i,ori" a). The Superintendent, District .Jail, Khamma# 4 rhe s u peri nte ndent, centra I J a i t, ch eda Ja?tvy^tffi?l Hff ff H,il", tr 1'1 LR Copies ( By Special Messenger )

¶180

I[: X:fl,"J_t3:letary, Union of rndia Ministry of Law, Justice and company

¶181

The Secretary, Advocates Association Library, High Court for the State of o Telangana, High Court Buildings at HyOeranaj " Two CCs to the public prosecutor, High Court for the State of Telangana, Hyderabad [OUT]

¶182

o

¶183

10.o One Pru 99 CC to^{to Sri} Sri Thomas^{tndira,Advocate} Lloyd, Advocat" tOpUCl 1OeUC1 11. Two CD Copies

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HIGH COURT

DATED:1110212025