K. Suresh Reddy, J.

1. Both the accused in Sessions Case No.393 of 2009 on the file of the Court of IX Additional District and Sessions Judge, Chittoor, are the appellants. They were tried by the learned Additional Sessions Judge, Chittoor under the following charges.

                  (i)  First charge was under Section 457 IPC against both the accused.

                  (ii)  Second charge was under Section 380 IPC against both the accused

                  (iii)  Third charge was under Section 302 IPC against both the accused and

                  (iv)  Last charge was under Section 411 IPC against both the accused.

2. Substance of the charge is that on the night of 11.04.2009, both the accused, trespassed into the house of R. Kanthamma (hereinafter referred to as ‘the deceased’) situated at Municipal Colony, Chittoor, and committed theft of M.Os.1 to 4 and caused her death, thereby committed offences punishable under Sections 457, 380, 302 and 411 IPC.

3. After completion of trial, the learned Additional Sessions Judge convicted both the accused under Section 302 IPC and sentenced each of them to undergo Rigorous Imprisonment for ‘‘LIFE’ and also to pay a fine of Rs.500/- each, in default to undergo Simple Imprisonment for a period of three (3) months each. The learned Additional Sessions Judge further convicted both the accused under Section 457 IPC and sentenced each of them to undergo Rigorous Imprisonment for three (3) years and also to pay a fine of Rs.100/- each, in default to undergo Simple Imprisonment for a period of one month each. The learned Additional Sessions Judge further convicted both the accused under Section 380 IPC and sentenced each of them to undergo Rigorous Imprisonment for three (3) years and also to pay a fine of Rs.100/- each, in default to undergo Simple Imprisonment for a period of one month each. All the substantive sentences were directed to run concurrently.

4. Case of the prosecution, briefly, is as follows:

                  Both the accused as well as the material prosecution witnesses are residents of Chittoor. The deceased was also resident of Chittoor. Accused No.2 is the second wife of Accused No.1. P.Ws.1 and 5 are sons and P.W.6 is daughter of the deceased respectively. The deceased was residing alone in her house. P.W.5 was living at Bangalore, whereas P.W.1 was staying at his in-laws’ house at Vellore. P.W.1 was practising as an RMP Doctor at Chittoor and was running a clinic near Renuka Kalyana Mandapam.

                  (ii) On 12.04.2009, P.W.1 attended his clinic in the morning and thereafter proceeded to the house of the deceased at about 3.15 p.m. He found the door of the house locked from inside and opened the same with the key available with him. Upon entering the bedroom and calling his mother, there was no response. He then noticed that the deceased was lying dead and that blood was oozing from her mouth. He further observed that the gold chain and ear studs worn by the deceased were missing. At about 4.20 p.m. on the same day, P.W.1 approached the Police Station and lodged a report.

                  (iii) P .W.23- the then Inspector of Police, C.C.S. Chitoor, received Ex.P1-report from P.W.1 and registered a case in Crime No.70 of 2009 under Sections 302 and 379 IPC. He issued copies of FIR to all the concerned. Ex.P27 is the FIR. Immediately he summoned Clues Team and Dog Squad to the scene of offence. At about 5.15 p.m., P.W.23, along with his staff, visited the scene of offence, secured the presence of P.W.1 and recorded his statement. By then, the Clues Team had reached the scene of offence.

                  (iv) P .W.22, the then Inspector of Police and In-charge of the Finger Print Unit of the Clues Team, Chittoor, collected chance fingerprints from the side door of the kitchen. The chance prints were marked as Ex.P22 and the chance report as Ex.P21. He also obtained the fingerprints of A1 and A2, which were marked as Exs.P23 and P24 respectively. Finger Print Report was marked as Ex.P25 and Ex.P26 is the Comparison Chart. The chance prints obtained from the scene of offence were tallied with the admitted fingerprints of A1.

                  (v) At the same time, P.W.3-Head Constable attached to the Dog Squad and handler of the dog, visited the scene of offence. According to P.W.3, the dog tracked from the scene of offence to the thatched hut of A1 and A2. Dog Squad Mahazar was marked as Ex.P2.

                  (vi) P .W.23 made enquiries with the owner of the brick kiln, who stated that both the accused were residing in the said thatched hut. He prepared a rough sketch-Ex.P29 at brick kiln premises. He recorded statements of witnesses present there. Thereafter, he returned to the scene of offence and recorded statements of P.Ws.4 and 19. On the following day, he again visited the scene of offence and recorded statements of P.Ws.5 and 6. He held inquest over the dead body in the presence of her blood relatives and mediators-P.W.14 and another. Inquest Report was marked as Ex.P10. After conducting inquest, he seized the clothes worn by the deceased and thereafter sent the dead body for postmortem examination.

                  (vii) P .W.11, the then Civil Assistant Surgeon, Government Hospital, Chittoor, conducted autopsy over the dead body of the deceased. He opined the cause of death was due to asphyxia caused by throttling or strangulation. He issued Preliminary Postmortem Certificate-Ex.P7. After receiving RFSL Report -Ex.P8, he gave his final opinion under Ex.P9.

                  (viii) On 29.04.2009, P.W.23 apprehended both the accused near Mangalam area at Tirupati in the presence of mediators-P.W.17 and another. Both the accused said to have confessed about the commission of offence. Pursuant thereto, P.W.23 seized an amount of Rs.9,300/- and two receipts marked as Exs.P4 and P13 from A1 under a seizure mahazar marked as Ex.P14. He also seized a mobile phone-MO.3, from A2. In consequence of the said confession, MO.1 gold chain belonging to the deceased was recovered from the shop of the pawn broker-P.W.9, under a cover of panchanama- Ex.P5, in the presence of P.W.8 and another. P.W.23 also recorded statements of P.Ws.9 and 10. Thereafter, pursuant to the confession, MO.2 ear studs were recovered from Raghavendra Jewellers, Bazar Street, Chittoor, under a cover of panchanama Ex.P15, in the presence of mediators.

                  (ix) On 30.04.2009, P.W.15 conducted a Property Test Identification Parade, in which P.W.1 identified MOs.1 and 2. Identification proceedings were marked as Ex.P11. On 03.05.2009, P.W.23 sent the blood-stained clothes to FSL, Hyderabad, and the FSL Report was marked as Ex.P33. On 08.05.2009, P.W.21, the then Special Judicial Magistrate of First Class for Excise, Chittoor, conducted a Test Identification Parade of the accused, in which P.W.9 identified both the accused. The proceedings thereof were marked as Ex.P19.

                  (x) P.W.23 also forwarded the thyroid cartilage and hyoid bone for expert opinion to the Forensic Professor, S.V. Medical College, Tirupati. RFSL Report was marked as Ex.P33. After collecting all the documents and after completition of investigation, P.W.23 laid the charge sheet.

5. In support of its case, the prosecution examined PWs.1 to 23, got marked Exs.P.1 to P.33, apart from exhibiting MOs.1 to 5.

6. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating evidence found against them from the prosecution witnesses.

7. Accepting the evidence of prosecution witnesses, the learned Additional Sessions Judge, convicted and sentenced accused Nos.1 and 2 as aforesaid.

8. Heard Smt. A.Gayatri Reddy, learned counsel for the appellants- accused Nos. 1 and 2 as well as Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State. We have carefully analyzed the entire evidence on record.

9. Admittedly, the prosecution case rests entirely on circumstantial evidence, as there are no eye witnesses to the occurrence.

10. The first circumstance relied upon by the prosecution is the “last seen theory.” In order to establish the said circumstance, the prosecution examined P.W.4. In his evidence, P.W.4 stated that he was acquainted with both the appellants/accused and that, on the fateful day at about 8.30 p.m., after supplying milk to the residents and while returning to his house situated near the house of the deceased, he noticed both the appellants/accused present near the house of the deceased, chitchatting with each other. Though P.W.4 was cross-examined by the defence, nothing adverse has been elicited to discredit his evidence. Therefore, the prosecution has been able to establish that both the appellants/accused were seen near the house of the deceased at the relevant point of time.

11. The second circumstance relied upon by the prosecution pertains to the fingerprints found at the house of the deceased. In order to establish this circumstance, the prosecution examined P.W.22- the then Inspector of Police and In-charge of the Finger Print Unit of the Clues Team, Chittoor.

12. P.W.22, in his evidence, categorically stated that he collected chance prints from the side door of the kitchen of the house of the deceased. He further stated that he obtained the admitted finger prints of the appellants/accused from the jail authorities and submitted his report under Ex.P25. According to him, the chance prints obtained from the side door of the kitchen of the house of the deceased were tallied with the admitted finger prints of appellant No.1/Accused No.1. Though P.W.22 was subjected to cross-examination, nothing material or adverse could be elicited to discredit his testimony. Hence, the prosecution has been able to satisfactorily establish the second circumstance.

13. So far as the third circumstance, i.e. the tracking by the Dog Squad, is concerned, the prosecution examined P.W.3. P.W.3, in his testimony, categorically stated that the sniffer dog tracked from the scene of offence to the thatched hut of the appellants/accused. The Dog Squad Mahazar was marked as Ex.P2. Though the Dog Squad report was brought on record, the learned trial Judge has held that the said circumstance cannot be made the sole basis for conviction, in view of the law laid down by the Hon’ble Supreme Court in Surinder Pal Jain v. Delhi Administration (1) AIR 1993 SC 1723.

14. The next circumstance relied upon by the prosecution pertains to the arrest of the appellants/accused. In this regard, the prosecution examined P.W.17. P.W.17, in his testimony, categorically stated that both the appellants/accused were apprehended by P.W.23 in his presence on 29.04.2009 near Mangalam area, Tirupati. He further stated that P.W.23 seized an amount of Rs.9,300/- along with receipts marked as Exs.P4 and P13 from the possession of appellant/accused No.1. He also stated that both the appellants/accused made confessional statements with regard to the commission of the offence. Thus, the prosecution has been able to establish the arrest of both the appellants/ accused on 29.04.2009.

15. The last circumstance relied upon by the prosecution relates to the recovery of MOs.1 and 2, namely, the gold chain and gold ear studs belonging to the deceased, at the instance of the appellants/accused. To establish this circumstance, the prosecution relied upon the evidence of P.Ws.8 to 10 and 17, coupled with the evidence of P.W.23.

16. P.W.8, in his evidence, categorically stated that on 12.04.2009, the appellants/A1 and A2 approached him stating that they intended to sell a gold chain belonging to appellant No.2/A2 and deposit the sale proceeds in the names of their children. He further stated that on 13.04.2009, he, along with the appellants/A1 and A2, went to the shop of P.W.9, where the gold chain was pledged, pursuant to which an amount of Rs.20,000/- was received on the same day and a further sum of Rs.9,350/- was received on the following day.

17. P.W.9, the owner of the jewellery shop, corroborated the testimony of P.W.8 and stated that the appellants/A1 and A2 pledged the gold chain with him and received cash of Rs.29,350/-. He further stated that he issued a receipt for the said transaction, which was marked as Ex.P4. Pursuant thereto, P.W.23 seized MO.1 in the presence of mediators-P.W.17 and another. P.W.10 also deposed that MOs.1 and 2 were recovered at the instance of the appellants/accused. Though P.Ws.8 to 10 and 17 were subjected to lengthy cross-examination, nothing adverse has been elicited from their evidence. Further, MOs.1 and 2 were identified by P.W.1 during the Property Test Identification Parade conducted by P.W.15. Therefore, the prosecution could able to prove the recovery of MOs.1 and 2 at the instance of the appellants/accused.

18. In this connection, it is trite that the Hon’ble Apex Court in a catena of judgments including the decision in Sharad Birdhichand Sarda v. State of Maharashtra (2) (1981) 4 SCC 116, has laid down five (5) golden principles, which govern a case based only on circumstantial evidence:

                  “(1)  The circumstances from which the conclusion of guilt is to be drawn should be fully established.

                  (2)  The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

                  (3)  The circumstances should be of a conclusive nature and tendency.

                  (4)  They should exclude every possible hypothesis except the one to be followed, AND

                  (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

19. In view of the facts and circumstances, the prosecution has proved the guilt of the appellants/accused Nos.1 and 2 beyond reasonable doubt. The circumstances relied upon by the prosecution form a complete and consistent chain which unerringly point towards the guilt of the appellants alone, but not to others. Having analysed the evidence carefully, we have no hesitation to come to the conclusion that there are no grounds to interfere with the conviction and sentence recorded by the learned Additional Sessions Judge.

20. In the result, the present Criminal Appeal is dismissed confirming the conviction and sentence passed by the learned IX Additional District and Sessions Judge, Chittoor, in Sessions Case No.393 of 2009, dated 30.01.2018. Needless to state that the period already undergone by the appellants/Accused Nos.1 and 2 shall be given set off under Section 428 Cr.P.C.

Miscellaneous petitions, if any, pending in the Criminal Appeal, shall stand closed.