motive is a relevant fact U/s 8 of Evidence Act in criminal cases particularly cases based on circumstantial evidence. In the presence of evidence of direct eye witnesses, motive takes back seat and also pales into insignificance. Even in cases based on circumstantial evidence, failure of prosecution to prove motive will not destroy its case though it may be debilitated. If the other strong circumstances are established to bring home the guilt of accused, failure to prove motive will have no adverse impact in cases based on circumstantial evidence. = , on a conspectus of facts, evidence and law, though there is suspicion against accused, however the evidence placed before the Court does not withstand the legal scrutiny to unerringly point out the guilt of the accused beyond reasonable doubt. Therefore, in our considered view, the accused Appellant/A1, A3 to A5 and A7 and A8 deserve benefit of doubt. Hence the judgment of the trial is liable to be set aside.

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE TWENTY FOURTH DAY OF JANUARY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO

THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

CRIMINAL APPEAL NO: 100 OF 2013

Between:

1. Derangula Srinivasu @ Srinivas S/o.Adenna (A1)

R/o.Nallaguttapalle Village,

Ramapuram Mandal, Kadapa Dist.,

now Residing at K.R.V.towers,

Near Rajahmundry Railway Station,

Dowleswaram Road, Rajahmundry.

2. Derangula Sankar (A3) S/o.Adenna

R/o.Nallaguttapalle Village,

Ramapuram Mandal, Kadapa Dist.,

now Residing at K.R.V.towers,

Near Rajahmundry Railway Station,

Dowleswaram Road, Rajahmundry.

3. Shaik Arsad Ali (A4) S/o.Sardar Ali

R/o.Mahaboob Basha Street,

Rayachoti, Kadapa Dist.

4. Pindiprolu prasanna Lakshmi (A5) W/o.Nagu Turpu

R/o.2nd Line, Burma Colony,

Lalacheruvu, Rajahmundry, E.G.Dist.

...PETITIONER(S)

AND:

1. The State of A.P., rep. by its P.P., High Court of A.P., Hyderabad.

...RESPONDENTS

Counsel for the Petitioner(s): D KODANDARAMI REDDY

Counsel for the Respondents: PUBLIC PROSECUTOR

The Court made the following: ORDER

2023:APHC:1444

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

Criminal Appeal Nos.100 and 188 of 2013

Between:

Derangula Srinivasu @ Srinivas, S/o Adenna,

Age about 25 years and others

 .. Appellants

And

State of Andhra Pradesh, Rep. by its

Public Prosecutor,

High Court of Andhra Pradesh.

.. Respondent

DATE OF COMMON JUDGMENT PRONOUNCED: 24.01.2023

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO

THE HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

1. Whether Reporters of Local newspapers Yes/No

 may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No

 marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No

 see the fair copy of the Judgment?

__________________________

U. DURGA PRASAD RAO, J

_____________________________

G. RAMAKRISHNA PRASAD, J

2023:APHC:1444

::2::

*HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

AND

HON'BLE SRI JUSTICE G. RAMAKRISHNA PRASAD

+ Criminal Appeal Nos.100 and 188 of 2013

% 24.01.2023

Derangula Srinivasu @ Srinivas, S/o Adenna,

Age about 25 years and others

 .. Appellants

And

State of Andhra Pradesh, Rep. by its

Public Prosecutor,

High Court of Andhra Pradesh. .. Respondent

<GIST:

>HEAD NOTE:

! Counsel for appellants: Sri Kodandarami Reddy for A1, A3, A4 and A5 in

Crl.A.No.100/2013 and Smt. Vasundhara Reddy for A7

and A8 in Crl.A.No.188 of 2013

^ Counsel for respondent: Learned Public Prosecutor

? CASES REFERRED:

1. AIR 2001 SC 175

2. MANU/SC/1053/2014

3. 2011 (4) SCC 143

4. AIR 2022 SC 5273 = MANU/SC/1324/2022

5. AIR 1992 SC 1175

6. (2003) 12 SCC 792

7. (2003) 1 SCC 425

8. (2007) 13 SCC 457

9. (2003) 12 SCC 616

10. (2014) 12 SCC 439 = MANU/SC/0164/2013

11. MANU/SC/0169/1977 = 1978 Cri LJ 189

12. MANU/SC/0241/1979 = 1980 Cri LJ 388

13. MANU/SC/0945/1999 = 1999 Cr LJ 3124

14. AIR 2002 SC 3272 = MANU/SC/0800/2002

15. 1946 SCC OnLine PC 47 = (1946-47) 74 IA 65

16. (2004) 10 SCC 657 = MANU/SC/0096/2004

17. AIR 2011 SC 2769 = MANU/SC/0795/2011

2023:APHC:1444

::3::

HON’BLE SRI JUSTICE U. DURGA PRASAD RAO

AND

HON’BLE SRI JUSTICE G.RAMAKRISHNA PRASAD

Criminal Appeal Nos.100 and 188 of 2013

COMMON JUDGMENT: (Per Hon’ble Sri Justice U. Durga Prasad Rao)

 Crl.A.No.100/2013 is filed by A1, A3, A4, A5, whereas

Crl.A.No.188/2013 is filed by A7 & A8 aggrieved by the judgment dated

17.01.2013 in S.C.No.90/2012 passed by the learned V Additional District

& Sessions Judge (Fast Track Court), West Godavari at Eluru convicting A1

for the offences punishable under Section 120B, 302, 379 IPC; A3 u/s 120B

& 302 IPC; A4, A5 & A8 u/s 120B, 302 r/w 34 IPC; A7 u/s 120B IPC and

sentencing A1, A3, A4, A5, A7 & A8 to undergo life imprisonment and pay

a fine of Rs.10,000/- each and in default to suffer S.I. for six months.

Additionally A1 is sentenced to undergo R.I. for two years and pay fine of

Rs.1,000/- for the offence punishable u/s 379 IPC and in default to suffer S.I.

for three months.

 Case against A2 was abated as he died pending trial and case against

A6 was split up and separated.

2023:APHC:1444

::4::

2. The matrix of the prosecution case which ultimately led to the

conviction of accused can be stated thus:

 (a) A1 & A3 are own brothers, and A2 & A4 are their close

associates. A4 is the driver of TATA Sumo van bearing No.AP 26U 4185,

which A1 hired for committing the offence. A5 is the lady engaged by A1

to seduce the deceased with her love potion and watch his movements and

inform to him. Similarly, A8 was employed by the principal accused A6 –

Pothamesetti Srihari Reddy to shadow and haunt the movements of the

deceased viz., Karri Mohana Sai Reddy and pass on to A6. A7 is the

brother-in-law of A8 and he was also employed by A6 to elicit the

information relating to the movements of the deceased and convey to A6.

 (b) A6 has been staying in Dubai on account of some employment and

he has been carrying on immoral trafficking in women. The deceased also

stayed in Dubai for some time and returned to India few months before the

incident. He was also engaged in immoral trafficking of women for

prostitution in Dubai. There were some trade rivalries between A6 and the

deceased. In that context, A6 and A7 joined hands and caused some damage

2023:APHC:1444

::5::

to the trade carried out by the deceased and in retaliation the deceased also

caused some damage to A6 and A7. Further, the deceased while working in

Dubai earned amounts and stored with A6 and A7 who promised to return

the money while he returned to India but they did not return the amount and

in that context also there was some rivalry between them. Ultimately, A6

and A7 determined to kill the deceased. A6, for this purpose, engaged A1 to

kill the deceased, whereas A7 employed A8 to observe the movements of the

deceased and inform him from time-to-time, so that the deceased could be

successfully eliminated.

(c) The deceased returned from Dubai to his native place

Velagalavaripalem in Penumantra Mandal in November 2005. While so, on

09.12.2005, A6 visited Velagalavaripalem and Rajahmundry and held a

meeting with A1 and his associates in Room No.319 at New Mounika Lodge

behind Kotipalli Bus Stand, Rajahmundry and deliberated the method and

manner in which the deceased could be killed. Thus, A6 entered into a

criminal conspiracy with A1 to A4. A6 expressed strong wish that the

deceased must be killed and he would fund the amount.

2023:APHC:1444

::6::

(d) A1 having come to know that the deceased previously indulged in

the trafficking of women in Dubai and habituated to the flesh trade,

employed A5 as a tool to entice and trap the deceased and inform his

movements to him. A1 had already had illicit intimacy with A5 and so A5

expressed her consent to play the role of a vamp in the plot. As per plan, A5

developed illicit intimacy with the deceased and she used to inform the

activities of deceased from time to time to A1.

(e) While so, PW6 used to do prostitution business in Dubai and there

she was caught by police and later returned to India and started residing in

Velpuru near Tanuku. She has the intimacy with A7 and also the deceased.

The deceased used to express his view before her that he was intending to

send girls to Dubai to do prostitution business and asked her to arrange the

women for this purpose. She introduced PW7 and PW8 the two unfortunate

ladies who on account of their poor economic plight expressed their

willingness to PW6 to do prostitution business at Hyderabad or Dubai.

Thus, the deceased proposed to take the three women i.e., A5, PW7 & PW8,

to Hyderabad on 20.01.2006 and from there to Dubai for prostitution after

negotiating with PW5 who is engaged in illegal trafficking of women. A5

2023:APHC:1444

::7::

passed on the said information to A1 by phone. On the previous day, the

deceased kept A5 at Velagalavaripalem in the house of the grandmother of

PW4 who earlier worked under deceased as a cleaner of his tractor. On that

night, A5 stayed in his grandmother’s house and on 20.01.2006, the

deceased went and took her away. Later, on that night, the deceased, A5,

PW7 & PW8 went in a bus to Hyderabad. There the deceased met PW5 but

the negotiations failed and hence, all of them started returning to

Tadepalligudem in Godavari express on the evening of 21.01.2006. A5 used

to frequently communicate their movements to A1. Knowing the said

information A1 to A4 planned to kill the deceased on the night of

21/22.01.2006 after they returned to Tadepalligudem. Accordingly, A1 to

A4 took vantage position near the railway station in their Tata Sumo bearing

No.AP 26U 4185. The deceased and the three women got down the train at

Tadepalligudem in the midnight. However, due to the presence of large

number of passengers in the railway station, A1 to A4 could not execute

their plan. The deceased along with the three women went to the APSRTC

Bus Stand in an Auto to go to their respective places by bus. A1 to A4

clandestinely followed them in their TATA sumo and stopped at the out gate

2023:APHC:1444

::8::

of the bus stand. In the meanwhile, the deceased and three women went

inside the bus stop and sat on the benches in the platform waiting for the

bus. The deceased slept on one bench. A1 and A2 went to the platform with

knives covering their faces with clothes, while A3 stood with a weapon near

the van at the out gate and A4 was in the driver’s seat. On receiving signal

from A5, A1 and A2 rushed to the deceased and removed the kerchief which

the deceased was draping on his face and identified him. The deceased

shockingly woke up and turned back and in the meanwhile, A1 and A2

stabbed over his back with the knives. The deceased threw away his

luggage bag on A1 and A2 and sprinted towards the out gate of the bus stand

and A1 and A2 chased him. In that process, the NOKIA cell phone

No.9866441641 of the deceased fell down and A1 took away the said cell

phone. On seeing the deceased sprinting towards the out gate, A3 who was

waiting there went across the deceased and stabbed him with a knife

indiscriminately. The deceased lost his balance and rammed on the fencing

and fell in the sewage drainage. A1 and A2 rushed there and stabbed the

deceased indiscriminately causing his instantaneous death. Having

2023:APHC:1444

::9::

confirmed that the deceased died, A1 to A4 skulked away in the TATA

Sumo.

(f) On the next day, early in the morning, PW1-the RTC Depot

Manager, Tadepalligudem came to the depot and on being informed by the

staff about the deceased felling in the drainage, gave Ex.P1 report to the

police of Tadepalligudem Town Police Station, basing on which Ex.P18/FIR

in Cr.No.20/2006 was registered by PW16-S.I. of Police, Tadepalligudem

Town PS. Later, PW18-the Inspector of Police, Tadepalligudem Town

Circle took up the investigation and conducted the Inquest over the dead

body in the presence of the relations of the deceased and other mediators and

prepared Ex.P15-Inquest Report. During the course of investigation, on

information, he arrested A5 and on her information, arrested A1 to A4 and

seized the material objects. After receiving the Postmortem report and on

completion of investigation filed the charge sheet against the accused. A6

was in abscondance at Dubai. On appearance of the accused, the trial Court

framed charges under Sections 120B, 148 & 302 IPC against the accused.

Additionally, charge under Section 379 IPC was framed against A1.

Accused denied the charges and claimed to be tried.

2023:APHC:1444

::10::

(g) The trial Court after considering the evidence on record and after

hearing the arguments of both parties came to the conclusion that the

accused are guilty of the charges leveled against them and accordingly,

convicted and sentenced them as stated supra.

Hence, the two Criminal Appeals..

3. Heard arguments of Sri Kodandarami Reddy, learned counsel for

appellants / A1, A3, A4 & A5 in Crl.A.No.100/2013 and Smt. Vasundhara

Reddy, learned counsel for appellants / A7 & A8 in Crl.A.No.188/2013.

4. Their arguments are more or less identical. Both the learned counsel

argued that the case is based on circumstantial evidence and in spite of

State’s failing to prove all the suspicious circumstances to form into a chain

and showing the guilt of the accused, the trial Court without proper

appreciation of facts and evidence recorded conviction against the accused

on some conjunctures. In expatiation, they argued that the prosecution failed

to prove the motive for accused to kill the deceased. While it is the case of

prosecution that there was some rivalry between the deceased on one hand

and A6 and A7 on the other in the prostitution business in Dubai which led

2023:APHC:1444

::11::

A6 and A7, particularly A6 to strongly resolve to kill the deceased, in the

evidence such a motive could not be established. On the other hand, PW2

and PW3, the mother and sister of the deceased presented altogether a

different picture. They deposed as if the deceased kept his earnings running

into some lakhs with A6 & A7 on their promise to return those amounts

while the deceased return to India, but they failed to return his money and in

that context some disputes arose between them. Both the learned counsel

vehemently argued that the said fact was not the motive as per charge sheet.

Hence, the prosecution failed to prove the motive aspect.

 (a) Nextly, they argued that according to the prosecution, A6 came to

India from Dubai and had a criminal conspiracy with A1 and his associates

i.e., A2 to A4 on 09.12.2005 in Room No.319 of New Mounica Lodge,

Rajahmundry to deliberate upon the method and manner in which the

deceased should be liquidated. Thereafter, as per prosecution case, A1

employed A5 to seduce the deceased and pass on the information relating to

his movements to A1 so as to design a plan to kill the deceased. Learned

counsel have vehemently argued that except filing Ex.P30- New Mounica

Lodge Register which allegedly contains the signatures of A1 & A2, the

2023:APHC:1444

::12::

prosecution has not taken any steps to correlate those signatures with that of

A1 and A2. Though they obtained the signatures of A1 and A2, they have

not secured the report from Handwriting Expert of the FSL. Therefore, there

is no reliable evidence to claim at the threshold that A1 and A2 occupied

Room No.319 on 09.12.2005 in New Mounica Lodge, Rajahmundry for

alleged conspiracy. They further argued that even assuming that A1 and A2

stayed in the said lodge on the given date, that by itself no inference of

criminal conspiracy can be drawn to the effect that themselves and A6 had

deliberated upon the methods to kill the deceased. No other instance of

conspiracy has been established by the prosecution. In the absence of prima

facie material showing the conspiracy among the accused, the sporadic

incidents like A5 travelling along with the deceased to Hyderabad and

returning to Tadepalligudem and witnessing his murder and her doubtful

conduct at that juncture and so also A1 and A8 visiting the house of the

deceased and securing his phone number from PW2 and PW3 and further,

A8 showing the deceased to A1 while the deceased was passing on a Tractor

etc. facts though admitted for argument sake to be true, cannot be accepted

as the acts in furtherance of their conspiracy, inasmuch as, the prosecution,

2023:APHC:1444

::13::

at the threshold failed to prove that indeed, there was a criminal conspiracy

among the accused. They placed reliance on (i) Saju v. State of Kerala1

 (ii)

Parveen @ Sonu v. The State of Haryana [Criminal Appeal No.1571/2021

(arising out of SLP (Crl.) No.5438 of 2020)], (iii) Balkar Singh v. State of

Haryana2

to contend that without proving the criminal conspiracy through

cogent evidence, the individual acts of the accused cannot be treated as part

of the conspiracy. It is further argued that the alleged phone conversation

between A1 and A6 produced by the prosecution under Ex.P20 is of no use

because the prosecution has not established that the international call made

by the A1 actually relates to the phone number of A6.

 (b) Added to above, Sri Kodandarami Reddy, learned counsel for

appellants / A1, A3 to A5 argued that the evidence of PW7 and PW8 – eye

witnesses confer no advantage on the prosecution for, the two assailants who

stabbed the deceased covered their faces with clothes and therefore, PW7

and PW8 had no occasion to identify them because the culprits were not

only the strangers but also masked their faces. Therefore, the PWs 7 and 8’s

identifying A1 and A2 is highly doubtful and unbelievable. So far as A3 and

1

 AIR 2001 SC 175

2

 MANU/SC/1053/2014

2023:APHC:1444

::14::

A4 are concerned, none has seen them participating in the murder of the

deceased. Except the alleged confessional statement, there is no other

independent and reliable evidence to connect the A3 and A4 to the offence.

The prosecution has not examined the owner of the TATA Sumo vehicle to

establish that he hired the vehicle along with the driver i.e., A4 to A1 and

A2. Learned counsel thus argued that the evidence on record woefully fell

short of establishing guilt of A1 to A4. So far as A5 is concerned, except

establishing that she was with the deceased since few days prior to the

incident and also at the time of his murder, nothing tangible was produced to

establish that she was one of the conspirators and facilitated the commission

of act of murder. Learned counsel further argued that the alleged

conversation between A1 and A6 under Ex.P19 and P20 is not admissible in

evidence since the voice of the person at the other end was not established as

that of the A6. He placed reliance on Nilesh Dinkar Paradkar v. State of

Maharashtra3

. Further, A6 is not facing trial in the instant case. Both the

learned counsel while submitting that the trial Court without considering the

3

 2011 (4) SCC 143

2023:APHC:1444

::15::

facts and evidence in right perspective convicted the accused, thus prayed to

allow the appeals.

5. Per contra learned Public Prosecutor while supporting the impugned

judgment would argue that the prosecution could establish all the suspicious

circumstances by cogent evidence and they formed into a complete chain to

manifest the guilt of all the accused. He expounded that the motive aspect

has been spoken by A2 and 3 stating that A6 and A7 have not only betrayed

the deceased by not refunding his amounts which he saved with them, but

also, foisted false case and sent him to jail. Further, in the matter of

conducting prostitution business in Dubai, there were trade rivalries

between, them hence A6 and A7 had strong motive to grind an axe against

the deceased. Then the conspiracy is concerned, learned Public Prosecutor

would argue that it is difficult to produce any direct evidence to establish

conspiracy since it will be hatched in secrecy. Hence in this case the

criminal conspiracy among the accused was established through

circumstantial evidence such as, Ex.P30- New Mounica Lodge Register

showing that the accused have gathered there and conspired to kill the

deceased; A5 acting as a vamp to seduce the deceased and purvey his

2023:APHC:1444

::16::

information to A1 to sketch the murder of deceased and her suspicious

conduct during the relevant period as deposed by PW7 and 8 and further, her

intimation to the police about the hide out of A1 to A4; A7 giving warning

to PW6 not to allow the deceased to enter her house and proclaiming that he

would die soon; A8 and A1 approaching the house of deceased and securing

his cell phone number through his mother and sister i.e., PW2 and 3, and

once A8 showing the deceased to A1 while he was going on a tractor for

easy identification; A6 sending amounts to A1 and A4 from Dubai with a

pseudonym and the phone conversation between A1 and A6 etc facts.

Learned Public Prosecutor would argue, above all, PWs7 and 8 have

deposed about the presence and participation of A1 and A2 in the crime and

thus prosecution has established the guilt of all the accused beyond

reasonable doubt and the trial Court has rightly considered the facts and

evidence and convicted the accused. He thus prayed to dismiss the appeals.

2023:APHC:1444

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6. The point for consideration is:-

Whether the prosecution in this case has established all the suspicious

circumstances by cogent evidence and such circumstances formed into a

complete change to prove the guilt of accused beyond reasonable doubt?

7. POINT: Precisely the prosecution case is that some disputes

occurred in Dubai between A6 and A7 on one hand and the deceased on the

other in conducting prostitution business. It is alleged, A6 nurtured grudge

and decided to eliminate the deceased and in that context he came to India in

December, 2005 and had a criminal conspiracy with A1 to A4 and A7 & A8

in New Mounica Lodge, Rajahmundry to find out the ways to kill the

deceased in India, as the deceased had already returned to India in

November, 2005. A1 agreed to kill the deceased with the help of A2 to A4.

By then he was having illicit intimacy with A5 who was in prostitution

profession. A1 thus employed A5 to seduce the deceased and to pass on the

information relating to his movements to plan his death. Similarly, A7 also

employed A8 who is his relation to pass on the information relating to

deceased as A7 was residing in Dubai by then. Ultimately, on the

2023:APHC:1444

::18::

information given by A5 that the deceased along with her and PWs 7 and 8

was returning from Secunderabad to Tadepalligudem on the night of

21/22.01.2006 in Godavari Express, A1 to A4 way laid at Tadepalligudem

Railway Station in a TATA Sumo vehicle but they could not execute their

wicked plan at the Railway Station due to the presence of large number of

passengers. So they followed the deceased and his associate women to

APSRTC Bus Stand of Tadepalligudem and when the deceased and three

women were waiting on the platform for a bus to go to their respective

places, A1 and A2 covering their faces with clothes, went there and on the

eye signals of A5 they identified the deceased who laid on one bench and

sleeping by covering his face with a kerchief. It is the further case of the

prosecution that A1 and A2 removed the kerchief from the face of the

deceased and woke him up and on seeing them he startled and in the

meanwhile they stabbed him with knives and he threw his bag on them and

ran towards outer gate where A3, who was waiting near the TATA Sumo

Van, intercepted him and stabbed him indiscriminately. The deceased

rammed on the fencing and fell in a sewage canal and in the meanwhile A1

2023:APHC:1444

::19::

and A2 also rushed there and stabbed him to death and then A1 to A4

retreated in the TATA SUMO vehicle.

8. So far as the above incident is concerned, according to prosecution,

A5, PWs 7 & 8 have witnessed A1 and A2 making initial attack on the

deceased though they did not witness A3 and A4 waiting at the out gate and

participating in the offence. Of course, after investigation, A5 was arrayed

as accused and the remaining two witnesses were examined during trial.

These two witnesses i.e., PWs 7 and 8 no doubt spoke about the incident in

tune with the prosecution case. However, since admittedly the two assailants

were strangers and covered their faces with clothes, how far the testimony of

Pws-7 and 8 is useful to the prosecution is a debatable issue which will be

discussed presently. Be that as it may, the role of other accused and the

conspiracy of all accused and their motive to kill the deceased etc.

circumstances were all sought to be established by the prosecution through

circumstantial evidence only. Therefore, it is apposite to treat the present

case as the one pivoting on circumstantial evidence.

2023:APHC:1444

::20::

9. Law is no more res integra as to how a criminal case hinging on

circumstantial evidence should be established. In a recent decision reported

in Ramanand v. State of U.P4 Hon’ble Apex Court dealt with the principles

of law relating to appreciation of circumstantial evidence. The Apex Court

referred to “A Treatise On Judicial Evidence” of Jeremy Bentham wherein

the author included a whole chapter upon what lies next when the direct

evidence does not lead to any special inference. He said it is called

circumstantial evidence. According to the author, in every case of

circumstantial evidence there are always at least two facts to be considered.

(a) The Factum probandum, or say, the principal fact (the fact the existence

of which is supposed or proposed to be proved; &

(b) The Factum probans or the evidentiary fact (the fact from the existence

of which that of the factum probandum is inferred).

 Thus from the above observation it is clear that factum probandum is

the principal fact sought to be proved by the prosecution meaning thereby

the ultimate guilt of the accused in a criminal case. However, if there is no

direct evidence in that case, the prosecution would seek to prove the

existence of certain incriminating circumstances which are called factum

4

 AIR 2022 SC 5273 = MANU/SC/1324/2022

2023:APHC:1444

::21::

probans or the evidentiary facts from which the existence of factum

probandum can be inferred. What are the suspicious circumstances, which,

if established, the inference of guilt of the accused can be drawn, depend

upon facts of each case.

10. On appreciation of circumstantial evidence, the Apex Court in the

above judgment has observed thus:

“46. Although there can be no straight jacket formula for appreciation of

circumstantial evidence, yet to convict an Accused on the basis of

circumstantial evidence, the Court must follow certain tests which are

broadly as follows:

1. Circumstances from which an inference of guilt is sought

to be drawn must be cogently and firmly established;

2. Those circumstances must be of a definite tendency

unerringly pointing towards guilt of the Accused and

must be conclusive in nature;

3. The circumstances, if taken cumulatively, should form a

chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the Accused and none else; and

4. The circumstantial evidence in order to sustain conviction

must be complete and incapable of explanation of any

other hypothesis than that of the guilt of the Accused but

should be inconsistent with his innocence. In other

2023:APHC:1444

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words, the circumstances should exclude every possible

hypothesis except the one to be proved.”

11. In the light of above jurisprudence on circumstantial evidence it has

now to be seen what are the incriminating or suspicious circumstances

projected by the prosecution in this case and whether they were established

to the satisfaction of this Court to draw the inference of guilt of all the

accused.

12. The prime circumstances in this case are:

 (i) Motive for the accused to kill deceased

 (ii) Criminal conspiracy hatched by the accused

(iii) Acts of accused pursuant to criminal conspiracy.

 (iv) PWs 7 and 8 witnessing the attack made by A1 and A2 on the

deceased

13. Motive: Motive is an emotion which compels a person to do a

particular act. U/s 8 of the Indian Evidence Act, motive, preparation and

previous or subsequent conduct of an accused are relevant facts. In criminal

cases motive plays a key role in establishing the guilt of the accused. On the

aspect, whether prosecution must invariably establish the motive of the

2023:APHC:1444

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accused to commit offence in a given case, law is no more res integra, rather

well delineated.

 (a) In the following cases the Apex Court has observed thus:

(i) In Mulakh Raj v. Satish Kumar5

 the Apex Court has observed

as follows:

“17.xxx. Undoubtedly in cases of circumstantial evidences

motive bears important significance. Motive always locks

up in the mind of the accused and some time it is difficult

to unlock. People do not act wholly without motive. The

failure to discover the motive of an offence does not signify

its non existence. The failure to prove motive is not fatal as

a matter of law. Proof of motive is never an indispensable

for conviction. When facts are clear it is immaterial that no

motive has been proved. Therefore, absence of proof of

motive does not break the link in the chain of

circumstances connecting the accused with the crime, nor

militates against the prosecution case.”

(ii) In Badam Singh v. State of M.P6

the Apex Court has observed

as follows:

“20. We also find that there was no motive for the appellant

to kill the deceased. Even though the existence of motive

5

 AIR 1992 SC 1175

6

 (2003) 12 SCC 792

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loses significance when there is reliable ocular testimony,

in a case where the ocular testimony appears to be suspect

the existence or absence of motive acquires some

significance regarding the probability of the prosecution

case.”

(iii) In Yunis Alias Kariya v. State of M.P.7

 the Apex Court has

observed as follows:

“7.The prosecution in the present case has failed to prove

the motive. Failure to prove motive for crime in our view

is of no consequence. The role of the accused persons in

the crime stands clearly established. The ocular evidence is

very clear and convincing in this case. The illegal acts of

the accused persons have resulted in the death of a young

boy of 18 years. It is settled law that establishment of

motive is not a sine qua non for proving the prosecution

case. For all these reasons, we find no merits in these

appeals.”

(iv) In Santosh Alias Santukrao v. State of Maharashtra8

 the

Apex Court has observed as follows:

“10. xxxx. So far as non-establishment of the

motive on the part of the accused is concerned,

suffice it to say that when the prosecution case is

7

 (2003) 1 SCC 425

8

 (2007) 13 SCC 457

2023:APHC:1444

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proved by direct evidence, motive takes a back

seat.”

(v) In Bikau Pandey v. State of Bihar9

 the Apex Court has

observed as follows:

“13. Therefore, Section 149 has been rightly applied when

the factual position as highlighted by the eyewitnesses is

considered. Even if the absence of motive as alleged is

accepted that is of no consequence and pales into

insignificance when direct evidence establishes the crime”

(vi) In Vivek Kalra v. State of Rajasthan10 the Apex Court has

observed as follows:

“6. xxxx. We are, however, of the opinion that where

prosecution relies on circumstantial evidence only, motive

is a relevant fact and can be taken into consideration under

Section 8 of the Indian Evidence Act, 1872 but where the

chain of other circumstances establish beyond reasonable

doubt that it is the accused and accused alone who has

committed the offence and this is one such case the Court

cannot hold that in the absence of motive of the accused

being established by the prosecution, the accused cannot be

held guilty of the offence. In Ujjagar Singh v. State of

Punjab MANU/SC/8232/2007 : (2007) 13 SCC 90, this

Court observed:

9

 (2003) 12 SCC 616

10 (2014) 12 SCC 439 = MANU/SC/0164/2013

2023:APHC:1444

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“It is true that in a case relating to

circumstantial evidence motive does assume

great importance but to say that the absence

of motive would dislodge the entire

prosecution story is perhaps giving this one

factor an importance which is not due and

(to use the clichés) the motive is in the mind

of the accused and can seldom be fathomed

with any degree of accuracy.””

 (b) The above jurisprudence pellucidly tells us that motive is a relevant

fact U/s 8 of Evidence Act in criminal cases particularly cases based on

circumstantial evidence. In the presence of evidence of direct eye witnesses,

motive takes back seat and also pales into insignificance. Even in cases

based on circumstantial evidence, failure of prosecution to prove motive will

not destroy its case though it may be debilitated. If the other strong

circumstances are established to bring home the guilt of accused, failure to

prove motive will have no adverse impact in cases based on circumstantial

evidence.

14. In the above context when prosecution case is scrutinized, the motive

for A6 and A7 to kill deceased as per charge sheet is that A6 and A7 while

staying in Dubai carried out immoral trafficking of women and the deceased

also engaged in flesh trade and in that connection some disputes arose

2023:APHC:1444

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between them. A6 and A7 joined hands and caused serious damage to the

trade of the deceased and he too retaliated in the same coin and therefore, it

is alleged, A6 and A7 determine to kill the deceased by hook or crook. This

is precisely the motive as narrated in the charge sheet. Be that as it may,

PWs 2 and 3 the mother and sister of deceased deposed about the motive

fact, of course in a different context.

(a) PW-2 – mother of deceased deposed that while working in Dubai,

her son gave his earnings to A6 on his convincing the deceased that if he

sends the amount to India, his family members may misuse the same and if

he saves that amount with him, he would hand over the entire amount when

the deceased leaves for India. PW-2 deposed that her son informed this fact

to her. It should be noted that in the cross-examination this part of her

evidence has not been specifically traversed.

(b) While so, PW-3 – the sister of deceased deposed that her brother

informed her by phone that his friend Srihari Reddy i.e., A6 took about

Rs.15 lakhs from him for the purpose of business with a promise to return

when her brother leaves for India but did not return. Her brother was

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angered and bet A6. On that A6 foisted a criminal case against her brother

and got seized his passport and thereby her brother lost his employment.

She further deposed that her brother gave Rs.18 to 20 lakhs to Srinivasa

Reddy i.e., A7 in Dubai for doing some business, in spite of her advice not

to part with his earnings as he already had a bitter experience with A6. She

further stated that after returning to India, the deceased informed her that A7

trapped him in a criminal case. She thus stated that A6 and A7 bore grudge

against her brother. She stated that her brother returned to India on

10.11.2005 without taking back money from A7. She denied the suggestion

that her brother never lent amounts to A7 as he has no capacity. She denied

the further suggestion that herself and her brother borrowed Rs.10 lakhs

from A7 and A8 and in order to avoid payment, they foisted false case

against them.

15. Motive is concerned, prosecution has not adduced evidence regarding

the disputes said to have occurred in Dubai between the deceased and A6

and A7 in connection with illegal trafficking of women. So far as the

lending of amounts by deceased to A6 and A7 is concerned, except oral

testimony of PWs 2 and 3 there is no other cogent evidence forthcoming.

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Even the version of PWs 2 and 3 in this regard is only a hearsay evidence.

No supporting documentary evidence is produced in this regard. Therefore,

in our view, the prosecution failed to establish the motive on either reason.

Of course, on that ground alone its case cannot be discarded in the light of

legal principles enunciated supra.

16. Criminal Conspiracy and acts pursuant thereof: In the realm of

criminal conspiracy, the following circumstances projected by prosecution

come up for consideration:

i. A6 and A1 to A4 held meeting in Room No.319 of New

Mounica Lodge in Rajahmundry on 09.12.2005 and conspired

to kill the deceased.

ii. Pursuant to the criminal conspiracy, A8 took A1 to the house of

deceased and secured his cell phone number from PWs-2 and 3

and once A8 had shown to A1 the deceased while he was

passing on a tractor for identification of deceased by A1.

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iii. In furtherance of above conspiracy, A1 who had illicit intimacy

with A5, engaged her to seduce the deceased and inform about

his movements to A1 to plan his murder.

iv. Accordingly, A5 developed illegal intimacy with the deceased

and sought his help to go to Dubai and do prostitution. She

visited Hyderabad along with deceased to meet PW-5 and she

stayed on the previous night in the house of grand-mother of

PW-4 – who was the cleaner of deceased’s tractor and she

conveyed the information about the deceased to A1 from time

to time and also informed A1 the news of deceased’s returning

from Hyderabad along with her and PWs-7 and 8 so as to

facilitate A1 to A4 to kill the deceased as a part of criminal

conspiracy. A5 used to hurriedly talk with someone through the

cell phone of the deceased during their journey as noticed by

PWs 7 and 8.

v. The police arrested A1 to A4 on the information provided by

A5.

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vi. The seizure of the cell phone number SIM No.9866441641 of

deceased from A5 which was given by A1 to her.

vii. The A6 used to send amounts to A1 and A4 from Dubai from

time to time through Western Union Money Transfer agency

with a different name.

viii. A7 exhorted PW-6 from Dubai not to allow the deceased into

her house and further stated that he would die soon. Added to it

after the death of deceased, A7 made a call from Dubai and

informed her that Mohan Sai Reddy was murdered by

somebody and asked her to switch off her cell phone and not to

receive any call.

ix. The phone conversation between A1 and A6 after killing of

deceased.

17. In this case, the trial Court framed a charge U/s 120-B IPC against A1

to A8 for the offence of criminal conspiracy to the effect on 09.12.2005 the

accused gathered in Room No.319 of New Mounica Lodge, Rajahmundry

and conspired to kill deceased and pursuant thereof, they did some acts

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individually and collectively in furtherance of such criminal conspiracy.

The pertinent question is whether conspiracy is established.

18. Section 120-A of IPC was introduced in Chapter-V-A through

Criminal Law (Amendment) Act, 1913. This section lays down that when

two or more persons agree to do or cause to be done-(i) an illegal act, or (2)

an act which is not an illegal by illegal means, such an agreement is

designated as criminal conspiracy. Thus the act of conspiracy itself is

punishable as an offence independent of its fruition. An important facet of

law of conspiracy is that apart from it being a distinct offence, all

conspirators are liable for the acts of each other of the crime which has been

committed as a result of the conspiracy.

(i) In Yash Pal Mittal v. State of Punjab 11 Supreme Court observed:

“9. xxx. The very agreement, concert or league is the ingredient of the

offence. It is not necessary that all the conspirators must know each and

every detail of the conspiracy as long as they are co-participators in the

main object of the conspiracy. There may be so many devices and

techniques adopted to achieve the common goal of the conspiracy and

there may be division of performances in the chain of actions with one

11 MANU/SC/0169/1977 = 1978 Cri LJ 189

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object to achieve the real end of which every collaborator must be aware

and in which each one of them must be interested.”

(ii) Regarding the proof of criminal conspiracy, in Shivnarayan

Laxminarayan Joshi and Ors. v. State of Maharashtra 12 the Supreme

Court observed as follows:

“14. xxxx. It is manifest that a conspiracy is always hatched in secrecy

and it is impossible to adduce direct evidence of the same. The offence

can be only proved largely from the inference drawn from acts or illegal

omission committed by the conspirators in pursuance of a common

design which has been amply proved by the prosecution as found as a

fact by the High Court."

 (iii) In State through S.P. CBI/SIT v. Nalini 13 the Apex Court

expounded certain broad principles governing criminal conspiracy.

(a) Offence of criminal conspiracy is an exception to the general law

principle that intent alone does not constitute crime. Criminal

conspiracy consists of not only the intention but also there has to be

an agreement to carry out the object of intention, which is an offence.

(b) Unlawful agreement and not its accomplishment which is the gist of

the crime of conspiracy. The offence of criminal conspiracy is

complete even though there is no agreement as to the means by which

12 MANU/SC/0241/1979 = 1980 Cri LJ 388

13 MANU/SC/0945/1999 = 1999 Cr LJ 3124

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the purpose is to be accomplished. It is the unlawful agreement

which is the gravamen of the crime of conspiracy. The unlawful

agreement which amounts to a conspiracy need not be formal or

express but it may be inherent in and inferred from the circumstances,

especially declarations, acts and conduct of the conspirators.

(c) Criminal conspiracy is a partnership in a crime and there is a mutual

agency for the execution of the common plan. Thereby, anything

said, written, or any act done, by any one of them pursuant to the

agreement is, in law, the act of each of them U/s 10 of Indian

Evidence Act.

(d) Conspiracy is hatched in privacy or in secrecy which is impossible to

establish by direct evidence. Usually, both the existence of

conspiracy and its objects have to be inferred from the circumstances

and the conduct of the accused.

19. On the anvil of above principles, the instances of criminal conspiracy

and subsequent acts of accused as projected by prosecution have to be tested.

The first instance is said to be the meeting of the accused in Room No.319

of New Mounica Lodge in Rajahmundry on 09.12.2005 to hatch a plan to

kill the deceased. When evidence in this regard is perused, the prosecution

produced Ex.P30 – New Mounica Lodge Register. At Serial No.16 of Page

No.62 of the said register, it was written as D. Srinivasulu, S/o Adanna dated

09.12.2005. Two signatures in the names of D. Srinivasulu and M.L.

2023:APHC:1444

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Chakradhar are mentioned. The prosecution case is that A1 and A2

occupied Room No.319 on 09.12.2005 and A6 and other accused also

assembled there and had criminal conspiracy. It appears the trial Court has

readily accepted Ex.P30 register and made wild guess and presumed the

conspiracy. In para-41 of its judgment learned judge mentioned thus:

“41. xxxx. The accused conspired and hatched a plan in New Mounica

Lodge at Rajahmundry. The prosecuting agency seized lodge registerEx.P30 wherein the names of the accused A1 and A2 are clearly noted as

such it can be presumed that many a times the accused met in hotel to

conspire about elimination of the deceased along with A6 when the

principal accused was not in India.”

It should be noted that except the said register no other connecting

evidence is produced to infer the conspiracy. In this regard, Ex.P24 –

Correspondence with the A.P. Forensic Science Laboratory shows that after

arrest of A1 and A2, their signatures were forwarded through JFCM,

Tadepalligudem for comparison with the signatures appearing in Ex.P30.

The correspondence shows that on 14.11.2006 the FSL sought for extensive

admitted English signatures of A1 and A2 written in normal course such as

cheques, letters etc. Then the JFCM, Tadepalligudem vide official

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memorandum dated 06.01.2007 informed SHO, Tadepalligudem town PS to

take steps to send the signatures as sought for by FSL as the SHO has not

taken such steps so far. The inspector of Police, Tadepalligudem vide his

letter dated 05.02.2007 informed to the JFCM, Tadepalligudem that

extensive efforts were made to trace out the signatures of the two accused by

contacting the banks and post offices but the signatures were not available.

He thus requested the Court to send the written letter of advice to FSL for

conducting the comparison test with the available documents. The JFCM,

Tadepalligudem vide his letter dated 08.02.2007 directed the SHO to depute

one constable for resending the available documents. There is no further

information as to whether the FSL conducted the examination and issued

any report. As such, except Ex.P24 and P30, there is no other material

available on record. Since the aforesaid material is incomplete, it is difficult

to affirm that A1 and A2 indeed occupied Room No.319 in the New

Mounica Lodge. Even assuming that they occupied the room, by such count

it cannot be further inferred that all other accused also gathered there and

formed into a criminal conspiracy to kill the deceased. Such a wild

presumption without any plausible evidence cannot be made. It should be

2023:APHC:1444

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noted that in the appendix of evidence attached to charge sheet, the

prosecution cited LW 14 – Sunkara Ananda Rao lessee-cum-manager of

New Mounica Lodge, Rajahmundry as a witness to depose, perhaps about

the factum of all the accused gathering in the lodge to hatch criminal

conspiracy. However, the prosecution did not examine him during trial.

Thus there is no cogent evidence to hold that the accused had criminal

conspiracy in the lodge as alleged by prosecution. Therefore, it has now to

be seen, whether from the other suspicious circumstances projected by the

prosecution, it is possible to infer the criminal conspiracy.

20. Then, the next incident, pursuant to criminal conspiracy as projected

by the prosecution is, once A8 took A1 to the house of the deceased and

sought for the photograph of deceased from PWs 2 and 3 and when photo

was not available they gave the phone number of the deceased. On another

occasion when PW 3 was washing clothes at the canal of their village, she

noticed A8 showed her brother to another person while her brother was

going on a tractor in that way. According to prosecution, on both the

aforesaid occasions, A8 took A1 along with him to show the deceased for

identification since A1 is a stranger to the deceased.

2023:APHC:1444

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(a) Prosecution examined PWs 2 and 3 to establish the above facts.

PW-2 – the mother of the deceased did not state anything about the above

said facts in her evidence. However, PW3 in her chief examination affirmed

the above facts. She of course denied the defence suggestion that A8 never

brought A1 to their village as stated by her. The trial Court placed implicit

reliance on the evidence of PW3 without making any objective analysis. In

para-46 of the judgment, learned judge in one sentence concluded that the

testimony of PWs-2 and 4 shows, A1 visited their house along with A8 as a

part of their conspiracy. We are constrained to observe, it is a casual

adoption rather than a critical evaluation of an important fact deposed by the

witness before accepting its veracity. From the evidence of PWs-2 and 3 it

is clear that the deceased and his family members know A7 and A8 and even

A6 also. Ergo, there is nothing strange if A-8 alone visits the house of the

deceased for securing his photograph showing some pretext. However, it is

most unlikely that he would take along with him A1, who was employed to

kill deceased. If the deceased were at house and enquired about the need for

photograph and particulars of A1 and entertained any doubt about the

conduct of A8 and A1, their plan would be sabotaged. Even in the absence

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of deceased also, the PWs-2 and 3 would certainly ask A8 about the need for

the photograph of the deceased and they may also enquire about A1. So in

the normal course, it is highly unlikely that A8 would go to the house of the

deceased that too along with A1 and try to secure his photograph. Strangely,

PW2 has not deposed about A8’s visit along with A1 to her house but only

PW3 stated this fact. Even PW3 did not further state whether they enquired

A8 the need for photograph of the deceased. Her evidence regarding the visit

of A1 and A8 to their house and also A8 showing her brother to A1 on

another occasion is highly doubtful and appears to have concocted to

substantiate the conspiracy of A1 and A8. The identification of A1 by PWs

2 and 3 is also highly doubtful. PW-2 in her evidence deposed that the

police arranged a press meet and produced the accused and shown to them

during the press meet. So the T.I period under Ex.P14 and witnesses

identifying accused lost the significance.

21. The next circumstance is about A1’s having illicit intimacy with A5

and his engaging her to seduce the deceased to inform about his movements

to A1 to plan his murder and accordingly A5 developing illicit intimacy with

2023:APHC:1444

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the deceased and passing on his information to A1 basing on which A1 to

A4 committing murder of deceased at the bus stand of Tadepalligudem.

In order to establish the above facts the prosecution mainly relied

upon Ex.P5 – confession-cum-mediators’ report which contains the

confession of offence by A5 and seizure of cell phone of the deceased from

her in the presence of the mediators and the evidence of the two mediators

i.e., PWs-13 & 15 and of course, the evidence of PW-18 – the IO.

22. We have carefully scrutinized Ex.P5 – report. It is a composite report

which contains the statement of A5 making a vivid narration of her

developing illegal intimacy with A1 and the planning of A1 to A4 at the

behest of A6 to kill the deceased and his employing her to seduce the

deceased to get his information and her obliging his instructions and also her

proceeding to Hyderabad along with deceased and PWs-7 and 8 and

returning therefrom and her passing on information to A3 through the cell

phone of deceased and the incident that occurred at the bus stand of

Tadepalligudem etc., facts. Her statement also contains the facts of A1

handing over the cell phone of deceased to her which he captured at the time

2023:APHC:1444

::41::

of incident. Her statement also contains the fact that she knows the

apartment where A1 to A4 are living for rent and her readiness to show the

same to police. Now the crucial question is whether the contents in Ex.P5 -

statement are admissible in evidence and if so to what extent.

23. Inadmissibility of confessional statement made to a police officer and

the extent of exception are no more res integra. Section-25 of the Indian

Evidence Act lays down that no confession made to a police officer shall be

proved as against a person accused of any offence. However, section 27

provides an exception to this general rule. It lays down that such of the

information, received from an accused while in the custody of the police

officer, whether it amounts to confession or not, as relates distinctly to the

fact which is discovered as a consequence of the information received from

the accused, may be proved.

 (a) The basic idea embedded in Section 27 is the doctrine of

confirmation by subsequent events. This doctrine is founded on the

principle that if any fact is discovered as on the strength of any information

obtained from an accused in custody of police, such a discovery is a

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guarantee that the information furnished by him is true. The information

might be confessional or non-confessional but if it results in discovery of a

fact it becomes reliable information (State of Karnataka v. David

Razario14).

 (b) In its classic exposition in Pulukuri Kotayya v. King Emperor15

the Privy Council dealt with the aspect to what extent a fact discovered is

applicable. It was held that it is fallacious to treat the ‘fact discovered’ in

Section 27 as equivalent to the object produced; the fact discovered

embraces the place from which the object is produced and the knowledge of

the accused as to the said place and the information given must relate

distinctly to the said fact. The information as to past user, or the past history

of the object produced is not related to its discovery.

 (c) In Anter Singh v. State of Rajasthan16 the Apex Court summed

up the requirements of Section 27 as follows:

14 AIR 2002 SC 3272 = MANU/SC/0800/2002

15 1946 SCC OnLine PC 47 = (1946-47) 74 IA 65

16 (2004) 10 SCC 657 = MANU/SC/0096/2004

2023:APHC:1444

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(i) The fact of which evidence is sought to be given must be

discovered and relevant to the issue and connecting to the

crime.

(ii) The discovery must have been in consequence of some

information received from the accused and not by accused’s

own act.

(iii) The person giving the information must be accused of any

offence.

(iv) He must be in the custody of a police officer.

(v) The discovery of a fact in consequence of information received

from an accused in custody must be deposed to.

(vi) Thereupon, only that portion of the information which relates

distinctly or strictly to the fact discovered can be proved. The

rest is inadmissible.

(d) In Mustkeem v. State of Rajasthan17 the Apex court observed

thus:

“27. With regard to Section 27 of the Act, what is important is

discovery of the material object at the disclosure of the accused but

such disclosure alone would not automatically lead to the

conclusion that the offence was also committed by the accused. In

fact, thereafter, burden lies on the prosecution to establish a close

17 AIR 2011 SC 2769 = MANU/SC/0795/2011

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link between discovery of the material objects and its use in the

commission of the offence. What is admissible under Section 27

of the Act is the information leading to discovery and not any

opinion formed on it by the prosecution.”

24. In the light of the above law on the subject, when Ex.P5 and the

related oral evidence are perused, it would appear, except the discovery of

cell phone and also the discovery of the hide out of A1 to A4 made as per

the information of A5, the rest of her statement is inadmissible as being

confessional and does not lead to any discovery and hit by Section 25 and 27

of the Evidence Act. Hence it has now to be seen whether the discovery of

the cell phone and the hiding place of A1 to A4 have relevancy with the

main offence in this case and whether they expose the criminal conspiracy

among the accused.

25. The cell phone is concerned, in Ex.P15 - Inquest Report it is

mentioned that PW-2, the mother of deceased made a phone call to the

deceased to his cell no 9866441641. During the visit to Hyderabad, A3 used

to make calls to A5 to the said cell phone number to know the movements of

deceased and herself. While so, as per Ex.P5, during the incident A1

captured the said cell phone of deceased when it fell down and later gave it

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::45::

to A5. That is how A5 got the possession of the deceased’s cell phone.

Under Ex.P5, the IO claimed to have seized the said cell phone from A5. In

that view, the IO should have taken steps to confirm from the concerned

service provider that the phone seized from A5 bears No.9866441641 and it

belongs to the deceased. He should have also obtained the information

relating to the incoming and outgoing calls, particularly that of A3 during

the relevant period. This information would have confirmed the conspiracy

and complicity of the accused in the offence. However, the IO (PW-18) in

his evidence clearly admitted that he has not taken any such steps to connect

the cell phone number 9866441641 to the offence. Without that

connectivity, mere discovery of cell phone will not lead to an irresistible

conclusion about the criminal conspiracy of accused and complicity of A3

and A5 in the offence. So also, mere information of A5 as to the rental

location of A1 to A4 will not lead to any automatic conclusion that A5 is a

hand in glove with them. In Ex.P5 we will find that during the course of

prostitution business, she came across A1 to A4 and in that way she know

about them. Therefore, her knowledge about A1 to A4 may not necessarily

out of criminal conspiracy. Even the evidence of PWs-7 and 8 would only

2023:APHC:1444

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disclose that like them, A5 also followed deceased to Hyderabad for her

business purpose. So the episode of A5, in our view will not clinch the

criminal conspiracy among the accused.

26. The next circumstance relating to criminal conspiracy as projected by

the prosecution is that the A6 used to send amounts to A1 and A4 from

Dubai from time to time through Western Union Money Transfer agency

with a different name. In this regard, prosecution filed MO-7 – receipts

issued by Western Union Money Transfer agency. We perused the MO-7

which contains ten receipts. Out of them, in three receipts sender’s name is

mentioned as Hari Reddy, Dubai whereas the recipient’s name is mentioned

as Tamanampudi Venkata Reddy. The prosecution has not filed any

material to establish that the sender Hari Reddy is A6 in this case. So also

no material is produced to show how Tamanampudi Venkata Reddy is

connected to A1 to A5 & A7 to A8. Then one receipt each stands in the

names of A1 and A4 respectively. However, sender’s name is mentioned as

Thota Narasimha Murthi, Dubai. In this context also the sender’s details are

not secured and produced before the Court. At best the two receipts would

show strong suspicion as to why A1 and A4 received amounts from a person

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from Dubai. They owe an answer to this question. However, the doubt as to

whether the sender in any one of those receipts is A6 or not still subsists.

27. The next angle projected in the prism of criminal conspiracy is that

once A7 exhorted PW-6 from Dubai not to allow the deceased into her house

and further stated that he would die soon. Added to it, after the death of

deceased, A7 made a call from Dubai and informed her that Mohan Sai

Reddy was murdered by somebody and asked her to switch off her cell

phone and not to receive any call. The aforesaid facts, if true would

certainly create doubt about the conduct of A7. Since the facts deposed by

PW-6 are grave in nature and denied by A7 with a suggestion that she owed

Rs.5 lakhs to him and in order to avoid payment of the said amount she

deposed falsehood, the duty is cast on the IO to secure corroboration to the

facts spoken by her. Having regard to the grave nature of her evidence

casting suspicion on A7, in normal course, the IO ought to have secured her

cell phone and obtained call data particulars from the service provider to

know whether indeed, any international calls were received from Dubai,

particularly from A7 during the relevant period. Unfortunately, the IO has

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not taken such steps. Therefore, it is not safe to place implicit reliance on

the evidence of PW-6 without proper corroboration.

28 Phone Conversation between A1 and A6: The next circumstance

projected by prosecution is about the phone conversation between A1 and

A6. PW-18 – IO in his evidence deposed that during the arrest of A1 to A4

on 25.02.2006, apart from other things, he seized Sony Ericsson Mobile

98492-86301 of A1. According to prosecution, A1 sometimes made

international calls to A6 at Dubai through the said phone and he allegedly

recorded some conversations with A6 through the voice recorder of his cell

phone. PW-18 deposed that after arrest he brought A1 to the police station

and allowed A1 to speak to A6 through his cell phone and said conversation

was also recorded and sent along with cell phone (IME No.35425900-

454939-4-80) SIM No.98492-86301 for analysis of voice conversation. In

the cross-examination he answered that he has not made any enquiry with

regard to the cell phone number No. 98492-86301 said to have been used by

A1. However, he affirmed that through the said phone, he permitted the A1

to talk to A6 after his apprehension and sent the cell phone and the voice

recorded, to the FSL through the Court.

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 (a) While so, PW-17 – the Assistant Director of APSFL, Hyderabad in

his evidence deposed that on 18.04.2006 he received sealed cover for

examination of calls recorded in a cell phone. However, since the specimen

voice of suspected person was not provided, he could not examine the voice.

He further deposed that on 30.08.2012 the FSL received Sony Ericsson Cell

phone model No.K500i and he copied seven phone call conversations from

the said phone into a compact disc under Ex.P20 and submitted to the Court.

He also submitted a data relating to incoming, outgoing and missed calls

located in the said cell phone and submitted a report under Ex.P19.

(b) Now, the prosecution, basing on the conversation contained in

Ex.P20, seeks to argue that the said conversation was held between A1 and

A6 subsequent to the murder of deceased, and the conversation would

disclose the criminal conspiracy between A1 and A6, inasmuch as, the inter

se dialogue contains the facts such as, A6 sent amount from Dubai to A1 and

he advised A1 to change his cell phone number and guard the lady (probably

Prasanna Lakshmi-A5) carefully and leave Rajahmundry and that police

were asking him to come to India but he would not etc. The defence

contends that the phone conversation was fabricated by the police.

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29. We find substantial force in the argument of defence. The fallacy of

prosecution case is that first of all, the prosecution has not established that

the Sony Ericson Phone which was allegedly seized from A1 bears the IME

No.35425900-454939-4-80 with SIM No.98492-86301 and its owner is A1,

by obtaining certificate from concerned service provider. Secondly, the

prosecution did not send the specimen voice of A1 through Court to FSL to

confirm that the voice of one of the persons participated in the dialogue was

that of A1. Nextly, the prosecution has not obtained any certificate from the

service provider at Dubai to show that the calls made to Dubai relate to the

phone number of A6.

 We heard the phone conversation recorded in Ex.P20 and we do admit

that the said conversation between two persons raises some suspicion. The

caller from India, on one occasion, named himself as ‘Derangula Srinivasu’

(probably A1). The person at the other end probably appears to be Thota

Narasimha Murthi. These facts, however suspicious they may be, cannot

supplant the proof which is expected from prosecution in the manner, as

stated supra. The trial Court readily accepted the truth of Ex.P19 and 20 on

the premise that since the calls were international calls, the police cannot

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fabricate. Further, the receiver of the calls, if not having any criminal nexus

with the caller, would not have talked in a suspicious manner as recorded in

Ex.P20. We are afraid this approach is not correct. In Dinkar Paradkar’s

case (supra 3), PW-17 – the Police Officer intercepted the phone calls and

recorded the incriminating conversation between absconded accused on one

hand and accused 1, 2 and 5 on the other and prepared a cassette and

submitted to his Senior Officer, PW-42. The Apex Court allowed the appeal

of Accused No.5 on the ground that there was no proper identification of the

voice as envisaged under law. Therefore, in the instant case also we cannot

give much weight to the Ex.P19 and 20. Further, A6 has not faced the trial

and at this juncture we cannot confirm or disaffirm the voice in the

conversation as that of A6.

30. Thus on a threadbare analysis of facts, evidence and law, we are

constrained to hold the prosecution failed to establish either by direct or

through the circumstantial evidence the aspect of criminal conspiracy among

the accused. Then what remains for consideration is whether the

prosecution could establish the guilt of the accused individually either.

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31. In the above context, we have scrutinized the facts and evidence

relating to main incident wherein A1 to A4 have allegedly participated. As

per prosecution A1 and A2 went to the platform of APSRTC bus stand,

Tadepalligudem in search of deceased and made a first attack on deceased

while he laid down on a bench. On receiving stab injuries, when the

deceased ran towards out gate, it is alleged A3 who was waiting at the

TATA Sumo Van ran across the deceased and stabbed him indiscriminately

and the deceased rammed into a fencing and fell in the sewage canal and

then A1 and A2 rushed there and they also stabbed him to death and then A1

to A3 fled away in the TATA Sumo Van driven by A4. As per prosecution

A5, PWs-7 & 8 were the eye witnesses to the extent of A1 and A2 making

initial attack on the deceased. A5 was subsequently arrayed as an accused

and PWs-7 and 8 were examined.

(a) PW-7 though deposed about her witnessing the incident, she only

stated that two persons - one is short and another is of some height covering

their faces with clothes came and woke up the deceased and on seeing them

when deceased took to his heels, they chased him and one person stabbed

the deceased. In her evidence, she did not specifically state that A1 and A2

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were the two assailants. The public prosecutor also did not elicit this fact

from her.

(b) So far as PW-8 is concerned, she too stated that two persons who

covered their faces with clothes came and stabbed the deceased while he was

lying on the bench. She further stated that she cannot recognize those two

persons now as their faces were covered with clothes. Thus at the outset, the

two eye-witnesses could not identify the assailants. A3 and A4 are

concerned, none of the eye-witnesses have seen them participating in crime.

Further, the prosecution has not taken steps to examine the owner of TATA

Sumo bearing No. AP 26U 4185 to depose that he hired his vehicle to A1 to

A3 along with his driver i.e., A4. A5 is concerned, admittedly she went to

Hyderabad along with the deceased and PWs-7 and 8 and she was present at

the time of incident. The only evidence against her is that during their visit

to Hyderabad, PWs-7 & 8 noticed that she was hurriedly and suspiciously

talking with someone in the cell phone and immediately after the incident

when PWs-7 and 8 expressed their view to inform to police, A5 discouraged

them and advised not to do so as they (deceased and assailants) were doing

some illegal business. It should be noted that we have already held that

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prosecution failed to prove that A5 was part of criminal conspiracy.

Therefore, individual acts like her following the deceased to Hyderabad and

her resisting the PWs-7 and 8 from giving complaint to police, though cast

some suspicion on her, but will not clinchingly establish her complicity in

the offence. So is the case with A7 and A8. When criminal conspiracy is

excluded, their individual acts will not establish the complicity in the crime.

In Saju’s case (supra 1) the Apex Court observed that without prima facie

evidence that a person was a party to conspiracy, his acts cannot be

attributed against the other accused.

32. Thus, on a conspectus of facts, evidence and law, though there is

suspicion against accused, however the evidence placed before the Court

does not withstand the legal scrutiny to unerringly point out the guilt of the

accused beyond reasonable doubt. Therefore, in our considered view, the

accused Appellant/A1, A3 to A5 and A7 and A8 deserve benefit of doubt.

Hence the judgment of the trial is liable to be set aside.

33. Accordingly, Criminal Appeal Nos.100 and 188 of 2013 are allowed

and conviction and sentence passed against all the accused by the trial Court

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in SC No.90 of 2012 are hereby set aside and if the accused are serving

imprisonment, they shall be set at liberty forthwith. Their bail bonds shall

be cancelled and fine amount if deposited shall be refunded.

 As a sequel, interlocutory applications pending, if any, shall stand

closed.

_________________________

U.DURGA PRASAD RAO, J

___________________________

G.RAMAKRISHNA PRASAD, J

Date:24.01.2023

MVA / KRK

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HON’BLE SRI JUSTICE U.DURGA PRASAD RAO

AND

HON’BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

Criminal Appeal Nos.100 and 188 of 2013

24th January, 2023

mva/krk

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