(Prayer: Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to to present this criminal appeal as aggrieved by the judgment dated 17-05-2018 made in SC.No. 396 of 2014 on the file of the court of the X Additional District and Sessions Judge at Gurazala by convicting the appellant u/s. 302 IPC r/w. 34 of IPC and sec. 379 r/w 34 IPC and sentenced to undergo life imprisonment and also shall pay a fine of Rs.10,000/- and also further sentenced to him 3 years simple imprisonment and also to pay a fine of Rs.10,000/- in default of payment of fine to undergo simple imprisonment for 3 months for the following among other grounds that may be urged at the time of hearing for the following and among the other.

IA NO: 1 OF 2019

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to expedite and hearing the appeal by fixing an early date of the above appeal and to pass

IA NO: 1 OF 2025

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on Bail by suspending the execution of the sentence of imprisonment imposed against the petitioner in Judgment dated 17-05-2018 made in S.C.No 396 of 2014 on the file of Court of the X Additional District and Sessions Judge at Gurazala, Guntur District, pending disposal of the CrlA.No. 1807 of 2018 in this Hon‟ble Court and pass

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to allow this Criminal Appeal by setting aside the judgement of conviction and sentence dt 17-05- 2018 as against the appellant or A1 in SC.No. 396 of 2014 on the file of the X Addl. Dist and Sessions Judge, Gurajala and acquit the appellant herein of the offences and pass

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence passed by the Hon'ble X Additional District & Sessions Judge, Gurajala, Guntur District in SC.No.396/2014 dt.17-05-2018 and release the petitioner/Al on bail on any conditions pending disposal of the appeal and pass

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to set aside the Judgment and Sentence Dt. 17.05.2018 passed in Sessions Case No. 396 of 2014 by the X Additional District and Sessions judge at Gurazala and further be pleased

IA NO: 1 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 16 days in re-presentation of the above appeal and further

IA NO: 2 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 51 days in preferring the present appeal and further be please

IA NO: 3 OF 2018

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner and accused No.3 on bail who was sentenced to suffer life imprisonment by Judgment and Sentence Dt. 17.05.2018 passed in Sessions Case No. 396 of 2014 by the X Additional District and Sessions judge at Gurazala and further be pleased

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the petitioner on bail during the pendency of Crl.A No. 268 of 2018 by suspending the sentence of imprisonment imposed in SC No. 396/2014 on the file of X Additional District and Sessions Judge, Gurazala, Guntur District and pass

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to allow this Criminal Appeal by setting aside the Calendar and Judgment Dt. 17.05.2018 passed in S.C No. 396 of 2014 on the file of the court of Learned X Additional District and Sessions Judge, Gurazala and pass

IA NO: 1 OF 2021

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 608 days in filing the present Criminal Appeal as against Calendar and Judgment Dt. 17.05.2018 passed in S.0 No. 396 of 2014 on the file of the court of Learned X Additional District and Sessions Judge, Gurazala and to receive the Criminal appeal on file in the interest of justice and to pass

IA NO: 2 OF 2021

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to dispense with the filing of certified copy of Calendar and Judgment Dt. 17.05.2018 passed in S.0 No. 396 of 2014 on the file of the court of Learned X Additional District and Sessions Judge, Gurazala and receive the main Criminal Appeal on file in the interests of justice and to pass

IA NO: 3 OF 2021

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the appellant on bail, by suspending the conviction and sentence imposed in Calendar and Judgment Dt. 17.05.2018 passed in S.0 No. 396 of 2014 on the file of the court of Learned X Additional District and Sessions Judge, Gurazala, pending disposal of the main Criminal Appeal and pass

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the Petitioner on bail by suspending the operation of conviction and sentence imposed by calendar and Judgment dated 17/05/2018 passed in SC No. 396 of 2014 on the file of the X AddI District and Sessions Judge, Gurazala pending appeal and pass)

Common Judgment:

K. Suresh Reddy, J.

1. Since all the four (4) Criminal Appeals arise out of the same Sessions Case, i.e., S.C. No.396 of 2014 on the file of the learned X Additional District and Sessions Judge, Gurazala, they were heard together and are being disposed of by this common judgment.

2. Accused No.1 is the appellant in Criminal Appeal No.1953 of 2018, Accused No.2 is the appellant in Criminal Appeal No.266 of 2021, Accused No.3 is the appellant in Criminal Appeal No.2683 of 2018, whereas, Accused No.4 is the appellant in Criminal Appeal No.1807 of 2018, all arising out of the above Sessions Case.

                  Accused Nos.1 to 4/appellants along with Accused No.5, were tried by the learned Additional Sessions Judge under the following charges.

                  i) First charge was under Section 302 r/w 34 IPC against A1 to A5

                  ii) Second charge was under Section 379 r/w 34 IPC against A1 to A5.

                  iii) Third charge was under Section 411 IPC against A2

3. Substance of the charge is that on 20.5.2013 at about 11.30 a.m. all the five accused, in furtherance of their common intention, caused the death of one Billa Mowlali (hereinafter referred to as „the deceased‟) by hacking him with MO4-Axe and by strangulating him with MO.2-Towel and committed theft of twenty (20) goats, thereby committed offences punishable under Sections 302 r/w 34 IPC, 379 r/w 34 IPC and 411 IPC.

4. After completion of trial, the learned Additional Sessions Judge convicted A1 to A4 under Section 302 r/w 34 IPC and sentenced each of them to undergo imprisonment for Life and also to pay a fine of Rs. 10,000/- each. The learned Sessions Judge, further convicted A1 to A4 under Section 379 r/w 34 IPC and sentenced each of them to undergo Simple Imprisonment for three (3) years and also to pay a fine of Rs.10,000/- each, in default, to undergo simple imprisonment for a period of three (3) months. The learned Sessions Judge, also convicted A2 under Section 411 IPC and sentenced him to undergo Simple Imprisonment for three (3) years and also to pay a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for three (3) months All the substantive sentences were directed to run concurrently. The learned Additional Sessions Judge acquitted A5 of both the charges.

5. Case of the prosecution, as emanated from the evidence of prosecution witnesses, is as follows:

                  P.W.1 is father of the deceased, and P.W.2 is son-in-law of P.W.1. Both of them are residents of Janapadu Village, Piduguralla Mandal, Guntur District. P.W.1 was eking out his livelihood by grazing goats and was maintaining a flock of about 80 goats. P.W.1 and the deceased used to go to the forest area for grazing the goats. As usual, on 13.07.2011, P.W.1 along with the deceased went to Madigolla Gutta in Kunta Beedu forest area, situated on the eastern side of Janapadu Village. After spending some time there, P.W.1 returned to the village, leaving the deceased in the forest along with the goats. However, the deceased did not return home till 5.00 p.m. Thereafter, P.W.1 went back to the forest area and found a part of the goat flock, but the deceased was missing. P.W.1 then drove the goats to his house and informed his relatives about the missing of the deceased. Thereafter, P.Ws.1 to 3 made a search for the deceased. P.W.1 also noticed that twenty (20) goats were missing.

                  (ii) While so, on 15.07.2013 at about 11.00 a.m., P.W.4 found the dead body of the deceased at Madigolla Gutta in Kunta Beedu forest area, situated on the eastern side of Janapadu Village. On receipt of the said information through P.W.4, P.W.1, along with his relatives, rushed to the scene of offence and found the dead body of the deceased. Thereafter, at about 12.10 p.m. on 15.07.2013, P.W.1 went to the police station and lodged a report, marked as Ex.P1.

                  (iii) P.W.22-the then Sub-Inspector of Police, Piduguralla Police Station, received Ex.P1 report and registered a case in Crime No.157 of 2013 under Sections 302 and 379 IPC. He issued copies of FIR to all the concerned. FIR is marked as Ex.P19.

                  (iv) P.W.23-the then Inspector of Police, Piduguralla Circle, having received information from P.W.22 took up investigation. He secured the presence of P.W.18 and another and went to the scene of offence. He prepared an observation report-Ex.P14 at the scene of offence. He also prepared a rough sketch-Ex.P22 at the scene of offence. He also seized blood stained towel-MO.2, broken sim card pieces-MO.3 at the scene of offence. He held inquest over the dead body in the presence of P.W.17 and another. Inquest report is marked as Ex.P13. He recorded statements of P.Ws.1 to 4 at the inquest. He sent the dead body to Government Hospital, Gurujala for conducting post-mortem examination.

                  (v) P.W.21-the then Medical Officer, Community Health Centre, Gurazala conducted autopsy over the dead body. He opined the cause of death was due to asphyxia as a result of ligature strangulation and head injury. He issued post-mortem certificate-Ex.P18.

                  (vi) Further investigation was taken over by P.W.24-the then Inspector of Police, Piduguralla Urban. On 17.07.2013 and 18.07.2013, P.W.24 visited Janapadu Village, examined the witnesses and recorded their statements. On 19.08.2013, on receipt of credible information, P.W.24 proceeded to Tummalacheruvu Chettu and found a Tata Ace Magic Auto bearing registration No. AP 16 QT T/R 9914 parked at the centre. On noticing the police, the accused tried to escape; however, P.W.24, with the assistance of his staff, apprehended them. All the five (5) accused confessed about the commission of the offence. P.W.24 seized the said vehicle in the presence of P.W.19 and another under the cover of a panchanama, marked as Ex.P16. Pursuant to the confessional statements of the accused, P.W.24 proceeded to the house of A.2 and seized twenty (20) goats, axe (M.O.4), and mobile phone (M.O.1) under the cover of a panchanama- Ex.P15. Thereafter, all the accused were remanded to judicial custody.

                  (vii) On 20.08.2013, P.W.24 conducted a Test Identification Parade of the goats. P.W.1 identified his goats in the Test Identification Parade conducted by P.W.20. Thereafter, P.W.24 handed over the goats to P.W.1 under a receipt-Ex.P23. On the same day, P.W.24 recorded statements of P.Ws.15 and 16.

                  (viii) After receiving all the documents and after completion of investigation, P.W.24 filed charge sheet.

6. In support of its case, the prosecution examined P.Ws.1 to 24 and marked Exs.P1 to P23 and exhibited M.O.s1 to 4.

7. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material found against them in the evidence of the prosecution witnesses.

8. Accepting the evidence of prosecution witnesses, the learned Sessions Judge convicted accused Nos.1 to 4/ appellants as aforesaid.

9. Heard Sri Surepalli Madhava Rao, learned counsel for appellant/A1 in Crl.A.No.1953 of 2018, Sri P.S.P. Suresh Kumar, learned counsel for appellant/A2 in Crl.A.No.266 of 2021, Sri D. Kodanda Ramireddy, learned counsel for A3/appellant in Crl.A.No.2683 of 2018, Smt. Ammaji Nettem, learned counsel for A4/appellant in Crl.A.No.1807 of 2018 and Sri Marri Venkata Ramana, learned Additional Public Prosecutor, appearing for the respondent/State.

10. Learned counsel for the appellants strenuously contended that there is absolutely no legal evidence connecting the appellants with the offences punishable under Sections 302 and 379 r/w 34 IPC. It is further contended that the prosecution has failed to produce any evidence to establish that the appellants were last seen in the company of the deceased on the relevant date. According to the learned counsel, there is no evidence whatsoever on record to connect the appellants with the commission of the murder of the deceased. It is also contended that the sole circumstance relied upon by the prosecution is the alleged recovery of twenty (20) goats from the house of A.2 on 19.08.2013, i.e., nearly three months after the date of the alleged incident.

11. Learned counsel for the appellants further contended that the material prosecution witnesses, i.e. P.Ws.6 to 16, who were examined to establish the chain of circumstantial evidence, did not support the prosecution case and were declared hostile. It is further contended that the evidence of P.Ws.1 to 3 is not all helpful to the prosecution, except to the fact that the deceased was missing from 13.07.2013. So far as the evidence of P.W.4 is concerned, it is contended that he merely found the dead body of the deceased on 15.07.2013 at Madigolla Gutta in Kunta Beedu forest area situated towards the eastern side of Janapadu village. It is further contended that, except the evidence of P.Ws.1 to 4, there is no other evidence connecting the appellants with the offences under Sections 302 and 379 IPC. It is further contended that the alleged recovery of twenty 20) goats from the house of A.2 was nearly after three months, does not inspire confidence and no credence can be placed on the same. According to the learned counsel, it is highly improbable that A2 would have retained the goats in his house for a period of three months without selling them.

12. Learned counsel for the appellants also contended that the alleged motive attributed to the appellants was to commit theft of goats and sell them in the market. In such circumstances, it cannot, by any stretch of imagination, be accepted that A2 would have kept the goats in his house for a period of three (03) months without disposing them.

13. In support of their contentions, learned counsel for the appellants placed reliance on the judgments of the Hon‟ble Apex Court reported in Sonu Alias Sunil Vs. State of Madhya Pradesh((2022) 13 Supreme Court Cases 705), Tulesh Kumar Sahu Vs. State of Chattisgarh (2022 Live Law (SC) 228) and also State of Rajasthan Vs. Talevar and Another (2011 (11) Supreme Court Cases 666) and requested this Court to allow the appeals by setting aside the convictions and sentences recorded by the learned Additional Sessions Judge.

14. On the other hand, learned Additional Public Prosecutor opposed the appeals contending that in view of recovery of goats from the house of A2, presumption can be drawn against the appellants that it was they who caused the death of the deceased and committed theft of goats. In support of his contention, he placed reliance on the judgment of the Hon‟ble Supreme Court reported in Gulab Chand Vs. State of Madhya Pradesh ((1995) 3 Supreme Court Cases 574) and requested this Court to dismiss all the appeals by confirming the convictions and sentences recorded by the learned Additional Sessions Judge.

15. We have carefully scrutinized the entire evidence on record.

16. Admittedly, there are no eyewitnesses in the present case, and the prosecution rests its case entirely on circumstantial evidence. Though the prosecution tried to establish the “last seen” theory, P.Ws.6 to 16 did not support the prosecution case and were declared hostile. The only circumstance available on record is the alleged recovery of twenty (20) goats from the house of A.2. To establish the said recovery, the prosecution relied on the evidence of P.W.20, who conducted Test Identification Parade of the goats.

17. P.W.20, in his evidence, categorically stated that he conducted Identification Parade on 20.10.2023, in which P.W.1 identified his goats. P.W.24-the Investigating Officer has also stated that after identification, he handed over twenty (20) goats to P.W.1 under a receipt Ex.P23, dated 20.10.2023. Obviously, the defence could not cross-examine P.W.20. They reported cross-examination as „Nil‟. Hence, the prosecution could able to prove the recovery of twenty (20) goats from the house of A.2. Except the said circumstance, there is no other material on record connecting the appellants with the offences under Sections 302 and 379 read with Section 34 IPC.

18. The Hon‟ble Supreme Court, in the judgments referred to supra, has categorically held that conviction under Sections 302 and 379 IPC cannot be sustained merely on the basis of recovery of stolen property. The Apex Court has further held that it would be unsafe to uphold a conviction solely on the basis of recovery, particularly when such recovery is effected after a considerable lapse of time from the date of the offence.

19. The motive suggested by the prosecution was that the accused committed the murder of the deceased in order to commit theft of the goats and sell them in the market. However, according to the prosecution case itself, A2 said to have kept the goats in his house for a period of three months. Nevertheless, as the defence did not cross-examine P.W.20, who conducted the Test Identification Parade, the recovery of the goats can be accepted, and the prosecution could able to establish the said recovery at the instance of A.2.

20. As regards the judgment relied upon by the learned Additional Public Prosecutor in Gulab Chand v. State of M.P., referred to supra, the facts of the said case are entirely distinguishable from the facts of the present case. In the case of Gulab Chand, the recovery pertained to jewellery, which could reasonably be retained by the accused without immediate disposal. In the case on hand, the appellants said to have committed theft of goats and they kept the same for a period of three (3) months without selling. Therefore, the judgment relied upon by the learned Additional Public Prosecutor does not advance the case of the prosecution. The prosecution has failed to place even an iota of material to connect the appellants with the offences punishable under Sections 302 and 379 read with Section 34 IPC.

                  Consequently, the convictions and sentences imposed upon the appellants are unsustainable.

21. So far as the conviction of A.2, the appellant in Criminal Appeal No.266 of 2021, under Section 411 IPC is concerned, the same stands established by the prosecution through the cogent evidence of P.Ws.20 and 24. As such, the conviction and sentence recorded by the learned Additional Sessions Judge against A.2 for the offence punishable under Section 411 IPC do not warrant any interference.

22. In the result, Criminal Appeal Nos.1807, 1953 and 2683 of 2018 are allowed and the convictions and sentences recorded against the appellants/Accused No.1, 3 and 4 in the judgment, dated 17.5.2018 in Sessions Case No.396 of 2014 by the learned X Additional District and Sessions Judge, Gurazala, in Sessions Case No.396 of 2014, for the offences under Sections under Sections 302 and 379 r/w 34 IPC are hereby set aside. Accordingly, the appellants/Accused No.1, 3 and 4 are acquitted of both the charges. Fine amount, if any, paid shall be refunded to them. Consequently, the appellants/accused shall be set at liberty forthwith, if they are not required in any other cases or crimes.

23. So far as Criminal Appeal No.266 of 2021 is concerned, the same is hereby allowed in part and the conviction and sentence recorded against the appellant/A2 by the learned by the learned X Additional District and Sessions Judge, Gurazala, in Sessions Case No.396 of 2014, dated 17.5.2018, for the offences under Sections under Sections 302 and 379 r/w 34 IPC are hereby set aside and the appellant/accused No.2 is acquitted of both the charges. However, the conviction and sentence recorded under Section 411 IPC is hereby confirmed.

24. As the appellant/accused No.2 in Criminal Appeal No.266 of 2021 has already been served out three years of imprisonment and also default sentence, he is directed to be set at liberty forthwith if he is not required in connection with any other case or crime.

                  Consequently, miscellaneous petitions, if any, pending shall stand closed.