UPPALA BIXAM @ BIXMAIAH versus THE STATE OF ANDHRA PRADESH

[2018] 12 S.C.R.

UPPALA BIXAM @ BIXMAIAH

THE STATE OF ANDHRA PRADESH

(Criminal Appeal No (s). 1548 of 2010)

BOCTOBER 11, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860:ss. 302 and 201 – Murder – Prosecutioncase that shepherd took his sheeps for grazing and did not returnhome – On basis of confessional statement of appellant, recoveryCof the dead body of the shepherd and sheeps – Conviction ofappellant u/ss. 302/201 and imposition of life imprisonment by thecourts below – Sustainability of – Held: Prosecution case needs tobe examined whether the circumstances are established and thatthey form complete chain in establishing the guilt of the accusedD– On facts, death of the shepherd was homicidal – No evidence toshow that the sheep recovered from the witness carried any distinctmark so as to identify the same as which belonged to the deceased–Circumstance of recovery of the dead body allegedly based on thealleged confessional statement may raise suspicion against theappellant that he might be involved in the incident but mere suspicionEitself cannot take itself the place of proof – There is wide gapbetween ‘may be’ and ‘must be’ – Thus, the conviction u/s.302/201not sustainable more so, when the motive attributed for the murderhas been theft of the sheep, and appellant has been acquitted ofthe same – Thus, the order passed by the High Court set aside.FS.D. Soni v. State of Gujarat (1992) Supp 1 SCC 567;Venkatesan v. State of Tamil Nadu(2008) 8 SCC 456;Raj Kumar Singh alias Raju Alias Batya v. State ofRajasthan(2013) 5 SCC 722 – referred to.

Case Law Reference

(1992) Supp. 1 SCC 567referred toPara 6(2008) 8 SCC 456referred toPara 6(2013) 5 SCC 722referred toPara 10

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1548 of 2010.

From the Judgment and Order dated 27.02.2006 of the High Courtof Judicature, Andhra Pradesh at Hyderabad in Crl. Appeal No. 479 of2004.

Annam D. N. Rao, A. Venkatesh, Rahul Mishra, Advs. for theAppellant.

S. Udaya Kumar Sagar, Mrityunjai Singh, Mrs. D. Bharathi Reddy,Advs. for the Respondent.

The Judgment of the Court was delivered by

BANUMATHI, J.: 1. This appeal arises out of judgment andorder dated 3[rd] July, 2015 passed by the High Court of Punjab and Haryanaat Chandigarh in Andhra Pradesh at Hyderabad in Criminal AppealNO.479 of 2004 in and by which the High Court has affirmed theconviction of the appellant under Section 302 I.P.C. and also Section201 I.P.C. and sentence of life imprisonment imposed upon him.

2. As per prosecution case, on 27.01.2000, deceased-Ramesh, ashepherd, took his 19 sheep for grazing in the outskirts of Beebigudemvillage; but did not return home. On 28.01.2000, while PW-1 and hisfamily members were searching for the deceased, they found three sheepin possession of Shaik Naseem (PW–9) who informed them that Lingaiah(PW-5) had sold him those sheep. When they made enquiries fromLingaiah (PW-5), whereupon he informed them that the appellant-UppalaBixam had sold those sheep by receiving an advance of Rs. 100/- fromhim. On 29.01.2000, appellant-accused was arrested and caseregistered against him under Section 379 of the Indian Penal Code. Incourse of investigation the appellant allegedly confessed to the crime ofmurdering the deceased, after which Case was registered against theaccused under Sections 302/201 I.P.C. as well. It is the case of theprosecution, based on the confessional statement made by the appellant-accused, that the dead body of the deceased was recovered from undera culvert.

3. Upon consideration of the evidence, in particular, the evidenceof recovery of the sheep and that recovery of the dead body of thedeceased-Ramesh on the basis of the alleged confessional statement ofthe appellant (which had been denied by the appellant under Section 313of the Criminal Procedure Code), the Trial Court convicted the appellantunder Section 302 I.P.C. and sentenced him to undergo life imprisonment.

AFor the conviction under Section 201 I.P.C. the appellant was sentencedto undergo imprisonment for period of six months. The conviction andsentence of imprisonment of the appellant was affirmed by the HighCourt.

4. We have heard learned counsel for the parties and also perusedBthe impugned judgment and the evidence and the materials on record.

5. The conviction of the appellant-accused was mainly based uponthe circumstances: (i) The body of the deceased-Ramesh was recoveredat the instance of the appellant-accused; (ii) The appellant-accused wassaid to have sold three sheep to Lingaiah (PW-5) who in turn had sold toCShaik Naseem (PW-9). On being enquired, Shaik Naseem (PW-9) toldthat he purchased the sheep from Lingaiah (PW-5) who in turn purchasedthe same from the appellant and the rest of the sheep were kept in thehouse of PW-8, sister of the appellant-accused.

6. It is well settled that when case rests on circumstantialDevidence, such evidence must satisfy three tests: (i) the circumstancesfrom which an inference of guilt is sought to be drawn, must be cogentlyand firmly established; (ii) those circumstances should be of definitetendency unerringly pointing towards the guilt of the accused; (iii) thecircumstances, taken cumulatively, should form chain so complete thatthere is no escape from the conclusion that within all human probabilityEthe crime was committed by the accused and none else. [Vide: S.D.Soni v. State of Gujarat, (1992) Supp 1 SCC 567 and Venkatesan v.State of Tamil Nadu (2008) 8 SCC 456]

7. In the light of the well-settled principles of circumstantialevidence, the case of the prosecution needs to be examined whether theFcircumstances are established and that they form complete chain inestablishing the guilt of the accused.

8. Admittedly, the death of Ramesh was homicidal. The prosecutionmainly relies upon the circumstances that the appellant-accused soldthree sheep to Lingaiah (PW-5) and his evidence that he purchased theGsheep from the appellant-accused. As per the prosecution case, threesheep were actually found in the Shandy of Nemmikal and they were inthe possession of PW-9. On being asked, PW-9 told that he purchasedthe sheep from Shaik Naseem (PW-5); who in turn told that he purchasedthe said three sheep from the appellant-accused. PW-10 and otherwitnesses who have been examined by the prosecution for recovery ofH

the sheep have stated that there was no specific identification mark onthe sheep for identifying those sheep which were recovered. Nothing isbrought on record to show that the sheep which were recovered fromLingaiah (PW-5) carried any distinct identification mark so as to identifythose sheep as the same ones as those of the deceased-Ramesh. Theprosecution has also relied upon the recovery of the sheep from thehouse of the sister of the appellant-accused. Here again, nothing is broughtin evidence to show that the sheep recovered from PW-8 carried anydistinct mark so as to identify the same as those which belonged to thedeceased-Ramesh. The Trial Court acquitted the appellant of the chargeunder Section 382 of the I.P.C.9. The only other circumstance relied upon by the prosecution isthe recovery of the dead body of the deceased-Ramesh on the basis ofthe confession of the appellant accused. In our considered view thisonly circumstance by itself may not be sufficient to establish the guilt ofthe accused. It was also submitted on behalf of the appellant-accusedthat in his questioning under Section 313 Cr.P.C. the appellant-accusedhas denied making of any confessional statement and recovery of deadbody of the deceased-Ramesh at his behest. It was further argued thatrecovery of the dead body of the deceased-Ramesh after two days ofthe occurrence also raises doubt about the prosecution’ case.

10. The circumstance of recovery of the dead body on the basisof confession may indicate that the accused might have been involved inthe incident. However, as held in Raj Kumar Singh alias Raju AliasBatya v. State of Rajasthan, (2013) 5 SCC 722 that suspicion howevergrave but cannot take the place of the proof. There is wide gap between“may be” and “must be”. In the present case, the circumstance ofrecovery of the dead body allegedly based on the alleged confessionalstatement may raise suspicion against the appellant-accused that hemight be involved in the incident but mere suspicion itself cannot takeitself the evidence of proof. In our view conviction under Section 302/201 I.P.C. cannot be sustained, more so, when the motive attributed forthe murder has been theft of the sheep, and the accused-appellant hasbeen acquitted of the charge of theft.

11. In the result, the impugned order is set aside and the appeal isallowed. The appellant is acquitted of all the charges and is ordered tobe released forthwith unless his presence is required in any other case.

Nidhi Jain Appeal allowed.