UPPALA BIXAM @ BIXMAIAHversusTHE STATE OF ANDHRA PRADESH

600                      [2018]REPORTS
               SUPREME COURT   12 S.C.R. 600              [2018] 12 S.C.R.


A                      UPPALA BIXAM @ BIXMAIAH
                                        v.
                    THE STATE OF ANDHRA PRADESH
                     (Criminal Appeal No (s). 1548 of 2010)
B                             OCTOBER 11, 2018
            [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
             Penal Code, 1860: ss. 302 and 201 – Murder – Prosecution
      case that a shepherd took his sheeps for grazing and did not return
      home – On basis of confessional statement of appellant, recovery
C
      of the dead body of the shepherd and sheeps – Conviction of
      appellant u/ss. 302/201 and imposition of life imprisonment by the
      courts below – Sustainability of – Held: Prosecution case needs to
      be examined whether the circumstances are established and that
      they form a complete chain in establishing the guilt of the accused
D     – On facts, death of the shepherd was homicidal – No evidence to
      show that the sheep recovered from the witness carried any distinct
      mark so as to identify the same as which belonged to the deceased
      –Circumstance of recovery of the dead body allegedly based on the
      alleged confessional statement may raise a suspicion against the
      appellant that he might be involved in the incident but mere suspicion
E
      itself cannot take itself the place of proof – There is a wide gap
      between ‘may be’ and ‘must be’ – Thus, the conviction u/s.302/201
      not sustainable more so, when the motive attributed for the murder
      has been theft of the sheep, and appellant has been acquitted of
      the same – Thus, the order passed by the High Court set aside.
F            S.D. Soni v. State of Gujarat (1992) Supp 1 SCC 567;
             Venkatesan v. State of Tamil Nadu (2008) 8 SCC 456;
             Raj Kumar Singh alias Raju Alias Batya v. State of
             Rajasthan (2013) 5 SCC 722 – referred to.
                              Case Law Reference
G     (1992) Supp. 1 SCC 567            referred to           Para 6
      (2008) 8 SCC 456                  referred to           Para 6
      (2013) 5 SCC 722                  referred to           Para 10


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                                       600
UPPALA BIXAM @ BIXMAIAH v. STATE OF ANDHRA PRADESH 601


      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                     A
No. 1548 of 2010.
      From the Judgment and Order dated 27.02.2006 of the High Court
of Judicature, Andhra Pradesh at Hyderabad in Crl. Appeal No. 479 of
2004.
      Annam D. N. Rao, A. Venkatesh, Rahul Mishra, Advs. for the            B
Appellant.
       S. Udaya Kumar Sagar, Mrityunjai Singh, Mrs. D. Bharathi Reddy,
Advs. for the Respondent.
       The Judgment of the Court was delivered by
       BANUMATHI, J.: 1. This appeal arises out of judgment and             C
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.
                                                                            D
       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 (PW–9) who informed them that Lingaiah
(PW-5) had sold him those sheep. When they made enquiries from              E
Lingaiah (PW-5), whereupon he informed them that the appellant-Uppala
Bixam had 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   F
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.
                                                                            G
       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.    H
602            SUPREME COURT REPORTS                        [2018] 12 S.C.R.


A     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
B     the impugned judgment and the evidence and the materials on record.
              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
C     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
D     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
E     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
F     circumstances are established and that they form a complete chain in
      establishing the guilt of the accused.
             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
G     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
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UPPALA BIXAM @ BIXMAIAH v. STATE OF ANDHRA PRADESH 603


the sheep have stated that there was no specific identification mark on         A
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
                                                                                B
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         C
the recovery of the dead body of the deceased-Ramesh on the basis of
the confession of the appellant accused. In our 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         D
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          E
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           F
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           G
been acquitted of the charge of theft.
       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.
Nidhi Jain                                                    Appeal allowed.   H