Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1295 OF 2019

Dakkata Balaram Reddy & Anr. ...Appellant(s)

Versus

State of Andhra Pradesh & Anr. ...Respondent(s)

J U D G M E N T

Sanjay Kumar, J

1. By judgment dated 30.08.2016 passed in Sessions Case No.

81 of 2012, the learned VI Additional District and Sessions Judge,

Sompeta, held the accused therein, viz., Dakkata Balaram Reddy (A1)

and Chinapana Gopi (A2), guilty of offences punishable under Sections

302, 397 and 450 IPC and sentenced them accordingly. Their conviction

and sentence stood confirmed when the High Court for the State of

Telangana and the State of Andhra Pradesh dismissed Criminal Appeal

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No. 915 of 2016 filed by the two accused, vide judgment dated

03.10.2018. Aggrieved thereby, both the accused are before this Court.

2. Heard Shri R. Basant, learned senior counsel, appearing for

the appellants/accused; Shri Mahfooz Ahsan Nazki, learned counsel,

appearing for the State of Andhra Pradesh; and Shri Y. Raja Gopala Rao,

learned counsel for the second respondent, viz., the complainant.

3. The case of the prosecution: The complainant, Vetcha Kesava

Rao (PW-1), is a resident of Ichapuram and his house is situated on

Chinnamedaraveedhi, wherein he also did his gold and silver business.

A1 is a civil contractor while A2, his brother-in-law, is an ex-serviceman.

On 21.08.2008 at about 9.00 pm, in PW-1’s absence, A1 and A2

trespassed into his house concealing iron rods under their shirts and

brutally killed his son, Vetcha Kiran Kumar (deceased No.1), and his wife,

Vetcha Venkatagopala Lakshmi (deceased No.2); robbed gold ornaments,

weighing about 3.543 Kgs., and cash of 18,340/-. At about 11.00 pm on

₹

the same night, PW-1 lodged a written report against them at Ichapuram

Town Police Station. Thereupon, Crime No. 61 of 2008 was registered by

the Sub-Inspector of Police, Ichapuram Rural P.S. (PW-23), and he

informed the Inspector of Police who was holding additional charge of

Ichapuram Circle (PW-26). PW-26 immediately took up investigation. He

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visited the scene of offence and held an inquest over the dead bodies in

the presence of mediators. Upon receiving information, he arrested A2 at

01.15 am on 22.08.2008 at Radhamveedhi, Jagannadhaswamy Temple,

Ichapuram, in the presence of mediators and recovered from his

possession part of the stolen property, i.e., gold ornaments weighing 1748

grams 750 milligrams and cash of 18,340/-. He then arrested A1 at

₹

04.00 am on 22.08.2008 from Gollaveedhi, Ichapuram, and recovered

gold ornaments weighing 1794 grams 370 milligrams from his possession

in the presence of mediators. Thus, PW-26 recovered the gold ornaments

weighing 3.543 Kgs. from the accused along with the cash. He also

examined several witnesses. He went to the scene of the offence and

prepared a Rough Sketch. At his request, the Inspector of Police, FPB

Unit, Srikakulam (PW-24), went to the scene of the offence along with the

Clues Team and developed four chance fingerprints. Thereafter, the

Inspector of Police, Ichapuram Circle (PW-27), took up further

investigation. He visited the scene of offence, examined witnesses and

recorded their statements. After completion of the investigation, he filed a

charge sheet against the accused. Charges were framed against them

under Sections 302, 379, 394 r/w 397, 411 and 450 IPC. They pleaded not

guilty and claimed to be tried.

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4. During the trial, the prosecution examined 27 witnesses and

marked Exs.P-1 to P-21 in evidence, apart from producing Material

Objects (MOs) 1 to 99. The accused did not adduce evidence but were

examined under Section 313 Cr.P.C. Upon considering the evidence and

the MOs, the learned VI Additional District and Sessions Judge, Sompeta,

held the accused guilty of the offences punishable under Sections 302,

397 and 450 IPC. They were sentenced to undergo imprisonment for life

under Section 302 IPC and to pay fine of 2,000/- each; imprisonment for

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a period of 10 years under Section 450 IPC and to pay a fine of 2,000/-

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each; and imprisonment for 7 years under Section 397 IPC. Further

imprisonment was directed for default in payment of fines.

5. Aggrieved thereby, the accused filed Criminal Appeal No. 915

of 2016 before the High Court. By judgment dated 03.10.2018, a Division

Bench of the High Court opined that the circumstantial evidence, in

corroboration with the medical evidence, the weapons used and the

manner in which the attack was made, established that the accused

intended to cause the death of the inmates of the house of PW-1, fulfilling

the essential ingredients of the offence under Section 300 IPC, punishable

under Section 302 IPC. The High Court, therefore, concluded that there

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was no merit in the case and dismissed the same. Hence, this appeal by

special leave under Article 136 of the Constitution.

6. At the outset, it would be apposite to note the scope of

jurisdiction under Article 136 of the Constitution in a case of this nature,

where the Trial Court and the High Court have concurrently returned

findings of guilt against the accused. In Pappu Vs. The State of Uttar

Pradesh [(2022) 10 SCC 321], this Court pointed out that, in an appeal by

special leave under Article 136 of the Constitution against concurrent

findings of fact by the Trial Court and the High Court after appreciation of

evidence, each and every finding of fact cannot be contested and such an

appeal cannot be dealt with as if this Court is another forum for

reappreciation of evidence. It was observed that it is only if the

assessment by the Trial Court and the High Court can be said to be

vitiated by any error of law or procedure or misreading of evidence or in

disregard to the norms of judicial process, leading to serious prejudice or

injustice, that this Court may, and in appropriate cases would, interfere in

order to prevent grave or serious miscarriage of justice, but such a course

is to be adopted only in rare and exceptional cases of manifest illegality. It

was further observed that such an appeal is not a regular appeal and this

Court would not interfere with concurrent findings of fact based on pure

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appreciation of evidence and it is not the scope of such appeal that this

Court would enter into reappreciation of evidence so as to take a view

different from that taken by the Trial Court and approved by the High

Court.

7. Earlier, in Sambhu Das alias Bijoy Das and another Vs.

State of Assam [(2010) 10 SCC 374], this Court affirmed that Article 136

of the Constitution does not confer a right of appeal on a party and only

confers discretionary power on this Court to be exercised sparingly to

interfere in suitable cases where grave miscarriage of justice has resulted

from illegality or misapprehension or mistake in reading evidence or from

ignoring, excluding or illegally admitting material evidence.

8. This being the settled legal position, the case on hand may

now be examined. There are no eye-witnesses to the actual commission

of the offence and the case is built on circumstantial evidence. Trite to

state, in such a situation, the chain of evidence must be so complete as to

not leave any reasonable grounds for a conclusion consistent with the

innocence of the accused; the accused ‘must be’ and not merely ‘may be’

guilty, before the Court can convict, and the facts established should be

consistent only with the hypothesis of the guilt of the accused [See

Hanumant Govind Nargundkar Vs. State of M.P. (AIR 1952 SC 343)].

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9. In this context, the following facts may be noted: Vetcha

Kesava Rao (PW-1) stated that, on 21.08.2008 at about 05.00 pm, he

went to Sompeta for business purposes and received a call from

PW-7/LW-8 at about 09.30 pm that the accused went to his house at about

09.00 pm and that they heard loud cries and shouts coming from the

house. PW-7 then told him that after some time A1 ran away with small

bundles of gold while he and LWs 6 & 7 (PW-4 and PW-6) were watching

and A2 fled from upstairs towards the backside portion. PW-1 stated that

he returned from Sompeta and reached his house at about 10.00 or 10.30

pm and by that time, people had gathered outside his house and all the

doors of his house were open. His son was lying in a pool of blood near

the sofa in the shop room and there was an iron rod on the floor, and in

the southern side room, his wife was lying in a pool of blood and he found

another iron rod near her. All the gold ornaments were missing from the

shop almirah and the show case. He then went to the police station and

lodged a report (Ex.P-1). PW-1 stated that he told the police that his wife

and son were killed by the accused. He also informed the police that he

had lost gold ornaments and cash of 18,340/-. In his cross-examination,

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he stated that the accused were his customers and used to purchase gold

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or take money from him. He denied knowledge of A1 being a contractor

and his financial position.

10. The Civil Assistant Surgeon, Community Health Centre,

Ichapuram (PW-19), conducted the post-mortem examination of the body

of deceased No. 1. He issued a post-mortem certificate (Ex.P-14) stating

that the cause of his death was shock due to brain injury and hemorrhage

following a head injury. Another Civil Assistant Surgeon at the Community

Health Centre, Ichapuram (PW-20), conducted the autopsy over the body

of deceased No. 2 and issued a post-mortem certificate (Ex.P-15) stating

to the same effect as to the cause of her death. Both PW-19 and PW-20

denied the suggestion that the injuries on the bodies of the deceased

could have been caused by falling from the first floor. In effect, it can

safely be said that their deaths were homicidal in nature. More so, as

blood-stained iron rods (MOs1 and 2) were found near the bodies.

11. Though there were no eye-witnesses to the actual killings,

there were three separate witnesses who spoke of seeing one or both of

the accused ‘running away’ from the house of PW-1 at that late hour on

the fateful night. PWs 4, 6, and 10 are those witnesses. PW-4 stated that

he was also doing gold and silver business and knew PW-1 as well as the

accused. He stated that, on 21.08.2008 at about 09.00 pm, he and PW-6

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were going to his sister’s house at Dabburi Street via Medaraveedhi and

at that time, they heard loud voices coming from PW-1’s house. They

shouted as to what was happening inside the house. A number of people

gathered at the house. Then, A1 came out from the house of PW-1 and

ran away. After that, the police came to the house of PW-1. Along with

them, they all went inside the house of PW-1 and found that the wife and

son of PW-1 were lying dead. PW-1’s son was lying in the shop room and

the body of PW-1’s wife was at the bath room which was after the shop

room. PW-1 then returned from camp. During the investigation, on

11.12.2008, his statement was recorded under Section 164 Cr.P.C. by the

Judicial First Class Magistrate, Sompeta (Ex.P2). At this stage, PW-4 was

declared hostile and was cross-examined by the prosecution. He denied

having stated before the police that the accused had entered the house of

PW-1 and had stolen gold ornaments and cash. In his cross-examination

by the defence, PW-4 stated that PW-1’s house was in the centre of

Chinnamedaraveedhi and on both sides, houses were situated. He stated

that he did not know whether PW-1 used to advance loans on pledging of

gold ornaments.

12. PW-6 stated that, on 21.08.2008 at about 09.00 pm, he and

PW-4 were going towards his house and PW-4 was then going to his

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sister’s house via Chinnamedaraveedhi. By the time they reached PW-1’s

house, they heard cries and shouted as to what happened. In the

meanwhile, 10 to 15 people gathered there. Then, A1 came outside from

PW-1’s house and ran away on a bike with a bag on his shoulder. After 5

or 10 minutes, A2 jumped from the upstairs of PW-1’s house to the

neighbouring house and from there, he jumped down. At that time, A2 was

also holding a bag. After one hour, PW-1 returned to his house and the

police also came there. In the first room, i.e., the gold shop, PW-1’s son

was found in a pool of blood and his wife’s body was found near the

bathroom towards the backside of the shop. Iron rods were found near the

bodies. In his cross-examination, PW-6 stated that about 3 or 4 people

were present at PW-1’s house by the time they were passing there. He

further stated that A1 was a contractor and possessed 8 lorries. He

however disclaimed knowledge of A1 doing gold business or having

constructed a temple. He could not say the colour of the wearing apparel

and the colour of the bags carried by the accused.

13. PW-7 stated that, on 21.08.2008 at about 09.00 pm, he closed

his kirana shop and was returning home and by the time he reached

PW-1’s house, he heard loud sounds coming from PW-1’s house and

some people had gathered there. He stated that he called PW-1 and

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informed him that loud sounds were coming from his house and PW-1

said that he would return home. At about 10.30 pm, PW-1 returned to the

house and a police report was given. After the police came, they went

inside the house and on the left side near the sofa in the shop room,

PW-1’s son was lying in a pool of blood. His wife was lying in a pool of

blood by the bathroom and iron rods were present near the bodies. He

further stated that all the things were shattered in the house of PW-1 and

around 4 Kgs. of gold and cash was stolen/lost. In his cross-examination,

he stated that, by the time the police came there, he was present outside

PW-1’s house. Significantly, PW-7 did not say anything about the

presence of the accused or about informing PW-1 of their entering and

leaving his house.

14. PW-10 resided in the 2

nd

house opposite the house of PW-1.

He stated that, on 21.08.2008 at about 09.30 pm, while he was taking

dinner, he heard sounds from outside. When he came out, he saw around

10 people gathered in the street. Meanwhile, A1 ran away from PW-1’s

house and then A2 ran away from PW-1’s house. Both of them were

holding bags. Later, he came to know that the accused had murdered

PW-1’s wife and son and ran away with gold. He stated that PW-1 came

to the house within half an hour or one hour. Police also came to the

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house. He went to the house and saw the bodies of deceased. In his

cross-examination, he admitted that he did not state before the police that

A1 and A 2 were holding bags and left PW-1’s house in a hurry.

15. Now, coming to the apprehension and arrest of the accused.

PW-17 stated that he was the Village Revenue Officer of Koligam Village

and on 22.08.2008, at around 01.00 am, he was called to Ichapuram Town

Police Station by the Inspector of Police. LW-27 was already there by

then. He stated that both of them and the police went to Radham Street

near Jagannadhaswamy Temple. At that time, one person was seen

running away from that place and the police chased and caught hold of

him. He was holding a bag in his hand. He stated that his name was

Chinapana Gopi (A2) and he allegedly confessed to commission of the

crime. The bag was seized and opened in their presence. They found gold

ornaments and cash of 18,340/- inside. At about 04.00 or 04.30 am on

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the same day, he went to Ichapuram Town Police Station and both the

accused were present there. The police then seized the blood-stained

clothes of both the accused in his presence. In his cross-examination, he

stated that he did not remember the colour of the bag seized from A2 or

the number of ornaments seized.

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16. PW-16, the Village Revenue Officer, Purushottapuram,

Ichapuram Mandal, stated that, on 22.08.2008 at about 02.30 am, the

Inspector of Police, Ichapuram, called him and LW-25 and both of them,

along with the Inspector of Police and other police staff, went to

Gollaveedhi in a police jeep. On seeing the police jeep, one person started

running but the police chased and caught hold of him. He was brought

before the Inspector of Police and on questioning as to why he was

running, he identified himself as Dakkata Balaram Reddy (A1). He

allegedly confessed to having killed PW-1’s wife and son and taking gold

ornaments. Upon being questioned about the ornaments, he brought the

ornaments in a bag from his room, i.e., about 30 items. PW-16 further

stated that, at about 04.40 am on the same day, the Inspector of Police

called him to the Police Station and he along with LW-26 went there. The

police seized the yellow T-shirt (MO 97) and light cement-coloured jeans

pant (MO 98) of A1 along with the blood-stained jeans of cement color

(MO 99) of A2.

17. PW-26 worked as the Inspector of Police at Sompeta from

13.10.2006 to 19.09.2008. He stated that, on 21.08.2008, while he was

holding additional charge of Ichapuram Circle, he received information

from the Sub-Inspector of Police, Ichapuram Rural Police Station (PW-23)

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about the subject crime. He immediately rushed there and also flashed

radio messages for conducting vehicle checking to apprehend the

accused. He visited the scene of offence at 11.45 pm and noted the dead

bodies. In the meanwhile, he received information about the movement of

the culprits and left the scene of the offence. He secured two mediators

and along with his staff, he went to Radhamveedhi, Jagannadhaswamy

Temple, at about 01.15 am and noticed one person, carrying a hand bag,

trying to escape upon seeing the police. He apprehended the person (A2)

and questioned him about the contents of the bag. He interrogated him

and he confessed to the commission of the offence. The bag carried by

him was verified and gold ornaments along with cash of 18,340/- were

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found therein. Then, PW-26, along with the accused, his staff and

mediators, rushed to the house of the other accused, Dakkata Balaram

Reddy, situated on Gollaveedhi of Ichapuram Municipality, and upon

seeing the police, one person (A1) tried to escape. He was apprehended

and interrogated in the presence of mediators. He also confessed to

commission of the offence and corroborated the version given by the other

accused. PW-26 stated that he then questioned him about the stolen

property and he fetched a bag from the side room of the house along with

blood-stained clothes and handed over the same to him. The bag

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contained gold ornaments. PW-26 then arrested A1 at about 04.00 am

and brought both the accused to the police station along with the seized

property. Upon further questioning as to their clothes at the time of the

offence, they disclosed that they were wearing the same clothes at the

time of offence. He then secured some other clothes and seized their

blood-stained clothes.

18. PW-27 stated that he worked as the Inspector of Police,

Ichapuram, from 09.02.2008 to 09.05.2010. He stated that he took up

further investigation in the case on hand on 31.08.2008 and that PW-26

had conducted investigation till then. He spoke of the Test Identification

Parade of the seized gold ornaments conducted in the presence of

mediators.

19. The Inspector of Police, FPB Unit, Srikakulam, was examined

as PW-24. He stated that, on receipt of a telephone message from the

Police Station, Ichapuram, he visited the scene of offence along with a

Clues Team on 22.08.2008 at about 06.00 am and developed four chance

fingerprints on a glass show case and one chance fingerprint on a

cream-coloured plastic box. He stated that he found photocopies of two of

the chance prints unfit for comparison but the chance prints marked as A,

D and E were fit for comparison. The fingerprints marked as A and E

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tallied with the fingerprints of the two accused. In his cross-examination,

he stated that he did not receive the specimen fingerprints of the accused

through the Court but from the Investigating Officer.

Insofar as this fingerprint evidence is concerned, we find that the

same was liable to be eschewed from consideration as the accused were

already in custody by the time the so-called chance fingerprints were lifted

from the scene of the offence. More importantly, the prescribed procedure

was not followed in gathering this so-called evidence. No report was

drawn up at the time of lifting of these chance prints in the presence of

credible witnesses. Similarly, no report was prepared even at the time the

specimen fingerprints of the accused were taken. Therefore, PW-24’s

evidence that two of the chance prints tallied with the fingerprints of the

accused cannot be given any weightage. Failure in following the due

procedure rendered the findings of PW-24 wholly unreliable.

20. Shri R. Basant, learned senior counsel, would contend that

there is no evidence of any light being available outside the house of

PW-1, whereby the witnesses could have seen the accused running away

with bags. We are of the opinion that it would not be open to the accused

to raise this factual aspect at this late stage. It was never put in issue that

the area in question did not have adequate street lights, whereby the

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evidentiary value of the statements of witnesses as to what they had seen

could be attacked. More so, as it has come on record that apart from the

jewellery shop of PW-1, there were other jewellery shops in the vicinity

and the police station itself was just half a kilometer away. If that was so,

it is difficult to believe that there would be no street lighting in such an

area. In any event, this Court does not propose to initiate an inquiry into

this factual aspect, which was not raised either before the Trial Court or

before the High Court.

21. Undeniably, there are some discrepancies and contradictions

in the prosecution’s case. There is no clarity as to the sequence of events

at the scene of offence on the fateful night. Witnesses gave differing

versions of the time of the arrival of the police and as to what they saw

and said. There is no corroboration of PW-1’s statement that it was PW-7

who informed him of the accused entering and exiting his house, as PW-7

said nothing to that effect. Further, recovery of the clothes worn by the

accused at that time is also shrouded in doubt. One version is that they

were still wearing them at the police station and they were seized there by

the police, after providing them other clothes, while the other is that A1

handed over blood-stained clothes to PW-26 along with the bag of

ornaments at his house. However, some differences in the testimonies of

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witnesses as to what they saw and said are to expected given the

passage of time. Be it noted that the subject incident occurred on the night

of 21.08.2008 and the depositions of the witnesses were recorded by the

Trial Court in the later part of 2015. In any event, as already noted

hereinbefore, this Court would not undertake a roving inquiry on factual

issues or reappreciate the evidence, unless it is brought out that there is

some perversity in appreciation of evidence by the Trial Court or the High

Court, leading to manifest miscarriage of justice. Trivial defects in

investigation or process are not enough, in themselves, to disbelieve the

prosecution’s case. To acquit solely on the ground of defective

investigation would be adding insult to injury [See Karnel Singh Vs. State

of M.P. {(1995) 5 SCC 518}]

22. Similarly, identification of the gold ornaments by PW-1 during

the TIP does not raise any red flags. Order 474 of the Andhra Pradesh

Police Investigation Manual, Part I, Vol. IIA, provides that identification of

properties has to be done in the Court premises, under the order of the

Magistrate, either by the Magistrate or through independent witnesses, if

the properties are already sent to Court, and in other cases, independent

witnesses should conduct the process of identification of the property in

the absence of the police, under a Panchnama. The properties to be

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identified should be mixed with similar articles and the witnesses should

be asked to identify them. This being the procedure that was followed in

the case on hand, there is no reason to doubt PW-1’s identification of the

seized gold ornaments as those taken from his shop.

23. In this regard, it may also be noted that A2 was found in

possession of a bag carrying some of the stolen ornaments and, therefore,

such possession itself speaks against him, in terms of Section 114 (a) of

the Indian Evidence Act, 1872. Being a fact especially within his

knowledge, it was for A2 to explain as to how he came to be in possession

of those stolen ornaments, under Section 106 of the Indian Evidence Act,

1872. However, no explanation was offered by him. As regards A1, it is the

prosecution’s case that he confessed to commission of the crime and

upon being questioned as to the stolen gold ornaments, he himself went

into the other room in his house and brought out a bag containing the gold

ornaments. This part of his confession would, therefore, be admissible

under Section 27 of the Indian Evidence Act, 1872, as it led to the

recovery of the stolen gold ornaments.

24. No doubt, recovery of this stolen property from the accused

would not be sufficient in itself to convict them for murder. However, the

weight of the evidence on record, taken cumulatively, unerringly points to

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the guilt of the accused, leaving no room for second thoughts. The

inescapable fact remains that PWs 4, 6, and 10, who were witnesses

independent of each other and who had no animosity or enmity with the

accused, spoke in unison about seeing them running away from the house

of PW-1 of the fateful night with bags in their possession. No explanation

is forthcoming as to why three separate witnesses would choose to

implicate the accused falsely.

25. Given the totality of the case, which demonstrates that the

sequence of events unfolded in quick succession during the intervening

night of 21.08.2008 and 22.08.2008, leading to not only identification of

the accused by the witnesses present but also their apprehension and

arrest, apart from seizure of the stolen gold ornaments and cash from their

possession, it is amply clear that there was no time or possibility for the

police to hoist a false case upon them. Minor discrepancies and

shortcomings in the statements made by witnesses after passage of a few

years would necessarily have to be discounted in such a scenario.

27. Viewed thus, we find no patent illegality or manifest injustice

having been committed by the Trial Court and the High Court, warranting

exercise of discretionary jurisdiction under Article 136 of the Constitution.

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The Criminal Appeal is, therefore, found to be bereft of merit and it is

dismissed accordingly.

…………………………………….,J

(Dinesh Maheshwari)

.……………………………………,J

(Sanjay Kumar)

April 21, 2023

New Delhi.

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