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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

(PW–9) who informed them that Lingaiah (PW-5) had sold him

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

whereupon he informed them that the appellant-Uppala Bixam had

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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

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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.