Uppala Bixam @ Bixmaiah vs The State Of Andhra Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s). 1548 OF 2010

UPPALA BIXAM @ BIXMAIAH Appellant(s)

VERSUS

THE STATE OF ANDHRA PRADESH Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) This appeal arises out of judgment and order dated 3rd

July, 2015 passed by the High Court of Punjab and Haryana at

Chandigarh in Andhra Pradesh at Hyderabad in Criminal Appeal

NO.479 of 2004 in and by which the High Court has affirmed the

conviction of the appellant under Section 302 I.P.C. and also

Section 201 I.P.C. and sentence of life imprisonment imposed

upon him.

(2) As per prosecution case, on 27.01.2000, deceased-Ramesh, a

shepherd, took his 19 sheep for grazing in the outskirts of

Beebigudem village; but did not return home. On 28.01.2000,

while PW-1 and his family members were searching for the

deceased, they found three sheep in possession of Shaik Naseem Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2018.10.26

(PW–9) who informed them that Lingaiah (PW-5) had sold him 15:15:46 IST Reason:

those sheep. When they made enquiries from Lingaiah (PW-5),

whereupon he informed them that the appellant-Uppala Bixam had 2

sold those sheep by receiving an advance of Rs. 100/- from him.

On 29.01.2000, appellant-accused was arrested and a case

registered against him under Section 379 of the Indian Penal

Code. In course of investigation the appellant allegedly

confessed to the crime of murdering the deceased, after which a

Case was registered against the accused under Sections 302/201

I.P.C. as well. It is the case of the prosecution, based on

the confessional statement made by the appellant-accused, that

the dead body of the deceased was recovered from under a

culvert.

(3) Upon consideration of the evidence, in particular, the

evidence of recovery of the sheep and that recovery of the dead

body of the deceased-Ramesh on the basis of the alleged

confessional statement of the appellant (which had been denied

by the appellant under Section 313 of the Criminal Procedure

Code), the Trial Court convicted the appellant under Section

302 I.P.C. and sentenced him to undergo life imprisonment. For

the conviction under Section 201 I.P.C. the appellant was

sentenced to undergo imprisonment for a period of six months.

The conviction and sentence of imprisonment of the appellant

was affirmed by the High Court.

(4) We have heard learned counsel for the parties and also

perused the impugned judgment and the evidence and the

materials on record.

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(5) The conviction of the appellant-accused was mainly based

upon the circumstances: (i) The body of the deceased-Ramesh

was recovered at the instance of the appellant-accused; (ii)

The appellant-accused was said to have sold three sheep to

Lingaiah (PW-5) who in turn had sold to Shaik Naseem (PW-9).

On being enquired, Shaik Naseem (PW-9) told that he purchased

the sheep from Lingaiah (PW-5) who in turn purchased the same

from the appellant and the rest of the sheep were kept in the

house of PW-8, sister of the appellant-accused.

(6) It is well settled that when a case rests on

circumstantial evidence, such evidence must satisfy three

tests: (i) the circumstances from which an inference of guilt

is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused; (iii) the

circumstances, 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. [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

circumstantial evidence, the case of the prosecution needs to

be examined whether the circumstances are established and that

they form a complete chain in establishing the guilt of the

accused.

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(8) Admittedly, the death of Ramesh was homicidal. The

prosecution mainly relies upon the circumstances that the

appellant-accused sold three sheep to Lingaiah (PW-5) and his

evidence that he purchased the sheep from the appellant-

accused. As per the prosecution case, three sheep were

actually found in the Shandy of Nemmikal and they were in the

possession of PW-9. On being asked, PW-9 told that he

purchased the sheep from Shaik Naseem (PW-5); who in turn told

that he purchased the said three sheep from the appellant-

accused. PW-10 and other witnesses who have been examined by

the prosecution for recovery of the sheep have stated that

there was no specific identification mark on the sheep for

identifying those sheep which were recovered. Nothing is

brought on record to show that the sheep which were recovered

from Lingaiah (PW-5) carried any distinct identification mark

so as to identify those sheep as the same ones as those of the

deceased-Ramesh. The prosecution has also relied upon the

recovery of the sheep from the house of the sister of the

appellant-accused. Here again, nothing is brought in evidence

to show that the sheep recovered from PW-8 carried any distinct

mark so as to identify the same as those which belonged to the

deceased-Ramesh. The Trial Court acquitted the appellant of

the charge under Section 382 of the I.P.C.

(9) The only other circumstance relied upon by the prosecution

is the recovery of the dead body of the deceased-Ramesh on the

basis of the confession of the appellant accused. In our 5

considered view this only circumstance by itself may not be

sufficient to establish the guilt of the accused. It was also

submitted on behalf of the appellant-accused that in his

questioning under Section 313 Cr.P.C. the appellant-accused has

denied making of any confessional statement and recovery of

dead body of the deceased-Ramesh at his behest. It was further

argued that recovery of the dead body of the deceased-Ramesh

after two days of the occurrence also raises doubt about the

prosecution’ case.

(10) The circumstance of recovery of the dead body on the

basis of confession may indicate that the accused might have

been involved in the incident. However, as held in Raj Kumar

Singh alias Raju Alias Batya v. State of Rajasthan, (2013) 5

SCC 722 that suspicion however grave but cannot take the place

of the proof. There is a wide gap between “may be” and “must

be”. In the present case, the circumstance of recovery of the

dead body allegedly based on the alleged confessional statement

may raise a suspicion against the appellant-accused that he

might be involved in the incident but mere suspicion itself

cannot take itself the evidence of proof. In our view

conviction under Section 302/201 I.P.C. cannot be sustained,

more so, when the motive attributed for the murder has been

theft of the sheep, and the accused-appellant has been

acquitted of the charge of theft.

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(11) In the result, the impugned order is set aside and the

appeal is allowed. The appellant is acquitted of all the

charges and is ordered to be released forthwith unless his

presence is required in any other case.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, OCTOBER 11, 2018.