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2019 DIGILAW 1 (AP)

Gandham Setty Prasad v. State of A. P.

2019-01-03

C.PRAVEEN KUMAR, M.SATYANARAYANA MURTHY

body2019
JUDGMENT : C. PRAVEEN KUMAR, J. 1. Challenging the order of acquittal passed in S.C. No. 122 of 2011 on the file of the II Additional Sessions Judge, Kadapa at Proddatur, the present appeal came to be filed by one Gandhamsetty Prasad, who was examined as P.W. 1, under Section 372 Cr.P.C. 2. Originally the respondents herein, who are accused 1 to 4 in S.C. No. 122 of 2011, were tried for the offences punishable under Sections 302, 120-B and 380 or 412 IPC. The substance of the charge against them was that on 01.09.2010 at about 11.00 a.m., the accused are said to have caused the death of one Vaddi Subba Laxmumma (hereinafter referred to as "deceased") by strangulating her with a Navvaru (plastic rope) and binding wire thereby causing instantaneous death. Thereafter the accused are said to have committed theft of the gold ornaments of the deceased. 3. The facts, as culled out from the evidence of the prosecution witnesses, are as under:- On the date of incident i.e., on 01.09.2010 at about 8.00 a.m., A-1 who was working as a maid servant in the house of the deceased, came to the house of the deceased, sprinkled water, laid "Muggu" in front of the house of the deceased and then went away. Again at about 10.00 a.m., A-1 along with three other male persons came to the house of the deceased. Out of them, A-1 along with one male person entered the house of the deceased, while two other male persons stood outside the house. On the next day, the neighbours and relatives came to know about the death of the deceased. The deceased is the senior maternal aunt of P.W. 1, while P.W. 2 is the husband of the deceased. P.W. 5 is a relative of the deceased. The other material witnesses are neighbours of the deceased. At the time of the incident, P.W. 2 who is the husband of the deceased was in Central Prison, Kadapa undergoing imprisonment in a criminal case. On coming to know that some strangers have caused the death of the deceased, P.W. 1 proceeded to the house of the deceased and noticed the dead body lying in the kitchen. He also noticed a ligature mark on the neck of the deceased. The almirahs were opened and the ornaments from the said almirahs were found missing. On coming to know that some strangers have caused the death of the deceased, P.W. 1 proceeded to the house of the deceased and noticed the dead body lying in the kitchen. He also noticed a ligature mark on the neck of the deceased. The almirahs were opened and the ornaments from the said almirahs were found missing. The information about the incident was also sent to P.W. 2, who was permitted to see the deceased with escort. 4. On 02.09.2010, P.W. 1 proceeded to the police station and lodged a report with the Inspector of Police, Proddatur 1 Town Police. On 03.09.2010 the predecessor of P.W. 10 continued with the investigation in this case by holding an inquest over the dead body in the presence of panchayatdars. Ex. P-2 is the inquest report. During inquest, he seized the wearing apparel of the deceased, which are placed on record as M.Os. 7 to 9. He also seized blood stained stone and controlled stone, which are marked as M.Os. 10 and 11. At that time, he also prepared a rough sketch of the scene of offence, which is marked as Ex. P-10. After completion of inquest, the dead body of the deceased was sent to Government hospital, Proddatur for autopsy. P.W. 8-the Assistant Surgeon at government Hospital, Proddatur, who conducted post mortem examination, found external and internal injuries over the dead body and reserved his final opinion pending APFSL report. He preserved the viscera and the hyoid bone of the deceased for expert opinion. On receipt of the expert opinion (Ex. P-5) from the RIMS Hospital, Kadapa and the report from the APFSL(Ex. P-6), he opined that the deceased would have died due to "asphyxia, due to respiratory failure due to pressure on the front side of the neck due to consumption of any chemical poison." The time of death was said to be about 48 to 52 hours prior to the post mortem examination. The initial opinion of the death was marked as Ex. P-7, while the final opinion which was given after receipt of Exs. P-5 and P-6 was marked as Ex. P-8. On 08.09.2010, on receipt of credible information, the predecessor of P.W. 10 left the police station at 9.30 a.m., along with panchayatdars and proceeded to the gold shop of P.W. 9, where he noticed four persons trying to sell gold ornaments of the deceased. P-5 and P-6 was marked as Ex. P-8. On 08.09.2010, on receipt of credible information, the predecessor of P.W. 10 left the police station at 9.30 a.m., along with panchayatdars and proceeded to the gold shop of P.W. 9, where he noticed four persons trying to sell gold ornaments of the deceased. On seeing the police, all the four persons tried to skulk away, but on suspicion they were apprehended. On interrogation, all of them confessed about the commission of the offence. A-1 is said to have produced two sada gold bangles and a pair of ear studs, A-2 is said to have produced one gold talibottu sarudu and one Motorola cell phone, A-3 produced two gold bangles and A-4 produced three gold rings and two pairs of silver anklets. All the four accused were arrested and property i.e., M.Os. 1 to 6 were seized under the cover of panchanama. Pursuant to the confession, all the accused lead the predecessor of P.W. 10, staff and panchayatdars to Rameswaram-RTPP cross road, byepass road and produced one Navvaru rope and one winding wire used in the commission of the offence. The same were marked as M.Os. 12 and 13. After collecting all the necessary reports and examining all the witnesses, P.W. 10 filed the charge-sheet, which was taken on file as P.R.C. No. 4 of 2011 on the file of the I Additional Judicial Magistrate of First Class, Proddatur. On appearance copies of the documents as required under Section 207 Cr.P.C., came to be furnished. As the offences alleged are triable by the court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. wherein it came to be numbered as S.C. No. 122 of 2011 on the file of II Additional Sessions Judge, Kadapa at Proddatur. 5. Basing on the material available on record, charges under Sections 302, 120-B, 380 and 412 IPC were framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 6. In support of its case, the prosecution examined PWs. 1 to 10 and got marked Exs. P-1 to P-12 and M.Os. 1 to 13. After the closure of evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which they denied. 6. In support of its case, the prosecution examined PWs. 1 to 10 and got marked Exs. P-1 to P-12 and M.Os. 1 to 13. After the closure of evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which they denied. No oral or documentary evidence was adduced, on behalf of the accused. 7. After hearing the arguments of the learned Public Prosecutor and the defence counsel, the Court below found that there was no material to connect the accused with the crime and accordingly acquitted all the accused. 8. Aggrieved by the same, P.W. 1 preferred the present appeal. 9. The main ground urged by Smt. P. Rajani Reddy, learned counsel appearing for the appellant that inspite of their being sufficient evidence against the accused, connecting them with the offence, the trial court erred in acquitting the accused without appreciating the material on record. According to her, the evidence of P.Ws. 1, 4, 5 and 9 amply establish the chain of events relied upon by the prosecution connecting the accused with the crime. It is pleaded that the evidence of P.Ws. 4 and 5 would establish the presence of the accused in the house. This circumstance, coupled with the recovery of gold, would lead to no other inference except the guilt of the accused. She further submits that the evidence of P.Ws. 4 to 6 and 9 would suffice to come to a definite conclusion that the respondents herein have committed the heinous crime. The learned public Prosecutor supported the case of the prosecution in all respects and sailed with the appellant herein. 10. On the other hand, Sri Nagaraju Nagooru, learned counsel appearing for the respondents/accused while supporting the finding arrived at by the trial court on the charges framed, would contend that there is no legal evidence to connect the accused with the crime. He pleads that recovery of alleged gold ornaments is not sufficient to connect the accused with the crime, since there is no material on record to show that these ornaments belong to the deceased. Insofar as the evidence of P.Ws. He pleads that recovery of alleged gold ornaments is not sufficient to connect the accused with the crime, since there is no material on record to show that these ornaments belong to the deceased. Insofar as the evidence of P.Ws. 4 and 5 is concerned, the counsel would contend that even if their evidence is accepted to the effect that they have seen the accused person outside the house of the deceased on the previous day morning, there is no evidence show as to that what happened thereafter, moreso, when the time given in the post mortem report does not fit their presence at the scene. Considering the power of the court to interfere in an appeal against acquittal, he would contend that the finding given by the trial court are not perverse, warranting interference. 11. The point that arises for consideration is; "Whether the respondents perpetrated the murder of Subbalakshumma-the senior paternal aunt of the appellant for gain, if so, whether the acquittal of the respondents is illegal and liable to be set aside?" 12. As stated earlier, there are no eyewitnesses to the incident and the entire case rests on the circumstantial evidence. The unnatural death of Subbalakshumma is an undisputed fact since the evidence of P.Ws. 1 to 3 coupled with the opinion of P.W. 8 and Exs. P-5 to P-8 establish that the deceased was killed. 13. Adverting to the point formulated above, we would like to discuss the power of this court to interfere with the acquittal recorded by the Trial court in the appeal. 14. Code of Criminal Procedure makes no distinction between an appeal against the acquittal and an appeal against the conviction, but the High Court in appeal against acquittal would be justified in re-appreciating the evidence in order to determine whether the charge against the accused was established by adducing satisfactory evidence. However, where no two views are reasonably possible in the matter, and view taken by the trial Judge was perverse and unsustainable, the High Court would be well within the limits of its power and would not transgress the self imposed limitations of the powers of the High Court in interfering with an order of acquittal. 15. However, where no two views are reasonably possible in the matter, and view taken by the trial Judge was perverse and unsustainable, the High Court would be well within the limits of its power and would not transgress the self imposed limitations of the powers of the High Court in interfering with an order of acquittal. 15. The Apex Court in S. Madhavan Nair v. State of Kerala AIR 1974 SC 1857 laid down certain guidelines which are as follows: "The High Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt; and (4) the slowness of an appellate court disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses; (5) the High Court should also take into account the reasons given by the court below in support of its order of acquittal and must express its reasons in the judgment which lead it to hold that the acquittal is not justified; (6) further, if two conclusions can be based upon the evidence on record, the High Court should not disturb the finding of acquittal recorded by the Trial Court. It would follow as a corollary from that that if the view taken by the Trial Court in acquitting the accused is not unreasonable, the occasion for the reversal of that view would not arise." 16. Keeping in mind the law laid down by the Apex Court, we would like to advert to the scope of the exercise to be undertaken by the Court in an appeal. Keeping in mind the law laid down by the Apex Court, we would like to advert to the scope of the exercise to be undertaken by the Court in an appeal. Though this Court granted leave to the informant/appellant to file an appeal still it is obligatory on the part of this Court to reappraise the entire evidence to come to an independent conclusion uninfluenced by the findings recorded by the Trial Court. Thus, it is the duty of this Court to re-appraise entire evidence recorded by the Court below after giving an opportunity to both the parties, i.e. appellant and the respondents/accused. Unless the Court finds manifest perversity in the judgment or where findings came to be recorded without evidence, normally, this Court would not interfere with such fact findings in appeal, while exercising jurisdiction under Section 372 Cr.P.C. It is the sacrosanct duty of the appellate court, while sitting in appeal against the judgment of the trial Judge, to be satisfied that the guilt of the accused has been established beyond all reasonable doubt after proper reassessment, re-appreciation and re-scrutiny of the material on record. Appreciation of evidence and proper re-assessment to arrive at the conclusion is imperative in a criminal appeal. That is the quality of exercise which is expected of the appellate court to be undertaken and when that is not done, the cause of justice is not sub-served, for neither an innocent person should be sent to prison without his fault nor a guilty person should be let off despite evidence on record to assure his guilt (vide Kamlesh Prabhudas Tanna and another v. State of Gujarat (2013) 15 SCC 263 ). Though the above judgment relates to conviction, still the duty of the Court in an appeal against acquittal is the same, subject to the limitations prescribed in the judgments referred to above. 17. The case on hand is totally based on circumstantial evidence, since the incident is alleged to have taken place in the house of the deceased. Therefore, it is the obligation of prosecution to establish each and every circumstance relied upon by them to complete the chain of circumstances, pointing out the guilt of the accused/respondent and inconsistent with the innocence. 18. Therefore, it is the obligation of prosecution to establish each and every circumstance relied upon by them to complete the chain of circumstances, pointing out the guilt of the accused/respondent and inconsistent with the innocence. 18. When the case is based on circumstantial evidence, the burden of proof is always on the prosecution to prove all the circumstances from which the conclusion of guilt is to be drawn. The facts so established must be consistent with hypothesis of guilt of accused and if the circumstances are consistent with innocence of accused, he is entitled to the benefit of doubt, (vide Kishore Chand v. State of Himachal Pradesh AIR 1990 SC 2140 ). 19. In Syed Hakkim and another v. State 2009 Cri.L.J. 1891 the Apex Court while discussing the scope of Section 3 of the Evidence Act, more particularly, in cases of circumstantial evidence held that, in a case of murder when the prosecution is relying on circumstantial evidence, it is for the prosecution to prove all the incriminating facts and circumstances and the circumstances which are incompatible with innocence of the accused to draw an inference of guilt and such evidence should be tested by touch-stone of law relating to circumstantial evidence. 20. Similarly, in G. Parshwanath v. State of Karnataka 2012 (2) ALT (Crl.) 347 (SC) : AIR 2010 SC 2914 , the Supreme Court was of the view that when the case of the prosecution is based on circumstantial evidence, the basis of which conclusion of guilt is drawn must be established fully; individual chain of circumstances must be complete pointing out to the guilt of accused; all proved facts must lead to an inference of guilt of the accused alone and court has to draw distinction between primary and basic facts while appreciating the circumstances; regard must be had to common course of natural events and human conduct and finally the facts established should be consistent only with hypothesis of guilt of accused. In Rukia Begum v. State of Karnataka with Issaq Sait and another v. State of Karnataka with Nasreen v. State of Karnataka AIR 2011 SC 1585 ; Jagroop Singh v. State of Punjab, Inspector of Police, Tamil Nadu v. Balaprasanna 2009 (1) ALD (Crl.) 113 (SC), Shaik Khadar Basha v. State of Andhra Pradesh 2009 (2) ALT (Crl.) 155 (D.B.) (A.P.) : 2009 (1) ALD (Crl.) 859 (AP), the same principle came to be reiterated. 21. The Supreme Court in Trimukh Maloti Kikran v. State of Maharashtra (2006) 10 SCC 681 , held as follows: "In the case on hand there are no eyewitness to the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence 22. In view of the settled principle of law, the prosecution made a vain attempt to prove each and every circumstance, pointing out the guilt of the accused for the offence punishable under Sections 302, 120-B, 380 or 412 of I.P.C. by drawing inference from the facts and circumstances, which according to prosecution are consistent with the hypothesis of guilt of accused and inconsistent with innocence. 23. Coming to the facts of the present case, the circumstances relied on by the appellant are as follows: 1. Finding the servant maid/accused No. 1 and his relatives at the scene of offence just before P.W. 4 left the house of the deceased Subbalakshumma. 2. Recovery of Material Objects based on the confession made by the accused. 3. Finding dead body of deceased-Subbalakshumma hanging in the kitchen. 24. The first and foremost circumstance relied on by the prosecution is the finding of the servant maid/accused No. 1 and her relatives at the scene of offence just before P.W. 4 left the house of the deceased. P.Ws. 3. Finding dead body of deceased-Subbalakshumma hanging in the kitchen. 24. The first and foremost circumstance relied on by the prosecution is the finding of the servant maid/accused No. 1 and her relatives at the scene of offence just before P.W. 4 left the house of the deceased. P.Ws. 4 to 6 were examined to establish the same. P.W. 4 is a resident of Eswara Reddy Nagar and neighbour of the deceased. According to his testimony, Accused No. 1 was a servant maid in the house of the deceased. On the date of incident at 08.00 a.m., accused No. 1 came to the house of the deceased, sprinkled water and drawn kolams in the front yard. Again at 10.00 a.m. accused No. 1 along with three other male persons came to the house of the deceased, and then accused No. 1 and one male person went into the house of the deceased while two other male persons stood outside the house of the deceased. Later, he came to know that the deceased was murdered and he can identify the three male persons. 25. But in the second sentence of his cross-examination, he admitted that he has not seen the person named Lakshmi at any point of time and that he has not stated to the police during investigation that he saw accused No. I and three male persons, before the house of the deceased. Therefore, the testimony of P.W. 4 is not worthy of credence to connect the accused with the offence. 26. Similarly, P.W. 5, who is distant relative of the deceased also deposed about accused No. 1 working as servant-maid in the house of the deceased. But her evidence is specific that on 01.09.2010 he went to the house of the deceased between 10.00 a.m. and 10.30 a.m. in order to supply groceries to the deceased, if necessary. In the meanwhile, accused No. 1 along with one male person entered into the house of the deceased. When the deceased questioned accused No. 1 about the details of the male person, who accompanied her, accused No. 1 replied that he was her brother. On the same day, he came to know about the death of deceased Subbalakshumma. In the cross-examination, nothing came to be elicited to disprove the presence of accused No. 1 and another male person. But P.W. 5 was not eyewitness to the incident. On the same day, he came to know about the death of deceased Subbalakshumma. In the cross-examination, nothing came to be elicited to disprove the presence of accused No. 1 and another male person. But P.W. 5 was not eyewitness to the incident. Except finding presence of accused No. 1 and another male person, nothing was stated by P.W. 5 to connect the respondents with the incident. 27. P.W. 6 in his evidence deposed that he saw four persons running away from the house of the deceased. But, he further stated that he cannot identify the accused as the persons who ran away from the house of the deceased. Therefore, this piece of evidence is of no use to connect the respondents with the offences punishable under Sections 302, 120-B and 380 or 412 of I.P.C. 28. Though, P.W. 5 spoke about the presence of accused No. 1 and another male person, but he did not speak about the presence of the other two persons, whereas P.Ws. 4 & 6 did not state anything pointing out the complicity of the respondents for such grave offences. Apart from that, there is any amount of inconsistency in the evidence of P.W. 4 and P.W. 5 with regard to the number of persons present at the house of deceased. Hence, we find it is difficult to accept the uncorroborated testimony of P.W. 5, who can be categorized as neither wholly reliable nor wholly unreliable witness. 29. Coming to the medical evidence, Ex. P-5 which was issued by P.W. 8-Dr. A. Eswara Reddy indicates that, the cause of death was due to strangulation and the time of death was approximately 48 to 52 hours prior to post-mortem examination, which commenced at 3:20 p.m on 03.09.2010. In view of un-controverted testimony of P.W. 8, coupled with Exs. 29. Coming to the medical evidence, Ex. P-5 which was issued by P.W. 8-Dr. A. Eswara Reddy indicates that, the cause of death was due to strangulation and the time of death was approximately 48 to 52 hours prior to post-mortem examination, which commenced at 3:20 p.m on 03.09.2010. In view of un-controverted testimony of P.W. 8, coupled with Exs. P.5 and P.7, it is clear that the death might have taken place between 48 to 52 hours prior to 3:20 p.m on 03.09.2010, meaning thereby that the death of Subbalakshumma must have approximately taken place at 3:20 p.m on 01.09.2010, whereas, the evidence of P.W. 5 is consistent that accused No. 1 and another male person were found at the house of the deceased on 01.09.2010 between 10:00 a.m to 10:30 a.m. Therefore, the time gap between the time of death and finding of the accused at the scene bring too remote, the same creates any amount of doubt as to the presence of accused No. 1 and other male person, whose names were not disclosed at the house of the deceased. Further, failure to conduct Test Identification Parade of male persons, who were unknown to P.IW. 5 is fatal to the case of the prosecution. This would have been a crucial link to connect the accused with the offence. In the absence of any test identification parade, identification of the accused in the Court for the first time when they have no prior acquaintance with such person, inspires no confidence and the same cannot form the basis to connect the accused with the crime. 30. Therefore, in view of the law declared by the Apex Court in the judgments referred supra, when the prosecution failed to establish that the deceased Subbalakshumma was found in the company of Accused No. 1 and in the company of other accused, alive, soon before her death, it is difficult to conclude that the respondents are the persons who caused the death of deceased Subbalakshumma. Hence, the Trial Court rightly recorded a finding that the prosecution failed to establish the said circumstance, thereby, the same cannot be disturbed, as we find no cogent or satisfactory evidence even after reappraisal of entire evidence to connect the accused with the offences punishable under Sections 302, 120-B and 380 or 412 of I.P.C. 31. Hence, the Trial Court rightly recorded a finding that the prosecution failed to establish the said circumstance, thereby, the same cannot be disturbed, as we find no cogent or satisfactory evidence even after reappraisal of entire evidence to connect the accused with the offences punishable under Sections 302, 120-B and 380 or 412 of I.P.C. 31. The other circumstance relied upon by the learned counsel for the appellant and the prosecution is the recovery of Material Objects based on the confession made by the accused while they were in the custody of police. 32. To establish the same, the prosecution examined P.Ws. 7, 9 and 10. P.W. 7 is the Village Revenue Officer of Proddatur Municipality and he was present along with the police when the inquest was held on the dead body of the deceased on 03.09.2010, but the inquest report is useful to decide the proximate cause of death of deceased, but not for any other purpose. Moreover, at the same time, P.W. 7 spoke about the confessional statement of accused leading to discovery while they were in custody of police on 08.09.2010 at 10:00 a.m and seizure of M.O Nos. 1 to 6 in their presence. Ex. P.3 is Seizure Panchanama. He further stated that, the accused lead him (P.W. 7) and others to Jammalamadugu By-pass Road, Rameswaram at about 1:30 p.m and produced one Nylon thread and binding wire which were seized under the cover of Ex. P.4. But P.W. 7 in the cross-examination admits that he is a stock witness to the police and he accompanied them as panchayatdar in number of cases. Further, no identification of the properties came to be conducted. Insofar as seizure of M.O. Nos. 12 and 13 are concerned, the same was from an open place, accessible to all. Hence, we find it difficult to accept the said seizures. 33. P.W. 9 is a Goldsmith and working as a worker in a gold shop at Proddatur Town, who in his evidence deposed that, while he was in the shop, three male persons along with female came to their shop and offered to sell gold ornaments. In the meantime, police came, caught hold of them, seized the gold rings, Talibottu Sarudu, bangles and other ornaments in his presence, under the cover of Ex. P.3 panchanama dated 08.09.2010. In the meantime, police came, caught hold of them, seized the gold rings, Talibottu Sarudu, bangles and other ornaments in his presence, under the cover of Ex. P.3 panchanama dated 08.09.2010. P.W. 9 further deposed that he could identify the persons, who came to the shop. In the cross-examination, he admitted that, he signed on Ex. P.3 panchanama, but at the same time, he admits that, he is not carrying on gold business, but he is only a worker in the gold shop. The suggestion put to him that no gold ornaments were seized in his presence was denied by him. M.O Nos. 1 to 5 are the gold and silver ornaments alleged to have been seized. But the Test Identification Parade of property, in accordance with the procedure prescribed under Rule 35 of A.P. Criminal Rules of Practice, was not conducted during investigation and they were not identified by any of the relatives of the deceased during the trial. Even assuming for a moment, the evidence of P. W. 9-Gold Smith and P. W. 10-Investigating Officer is worthy of credence, it is not sufficient to conclude that the respondents/accused committed such grave offences, more so when the properties were not shown to P.W. 9, while he was in the witness box. 34. Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26. The conditions necessary for invoking the aid of the Section are as follows: (a) there must be a discovery of a fact albeit relevant fact in pursuance of and information received from a person in police custody; (b) the discovery of such fact must be deposed to; (c) at the time of giving information the accused must be in police custody; Then the effect is that so much of the information as relates distinctly to the fact thereby discovered is admissible. What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered. Discovery of evidence is not a substantive evidence (vide Dinakar v. State AIR 1970 Bombay 438). What is allowed to be proved is the information or such part thereof as related distinctly to the fact thereby discovered. Discovery of evidence is not a substantive evidence (vide Dinakar v. State AIR 1970 Bombay 438). Similarly, in Inspector of Police, Tamil Nadu v. Balaprasanna (supra), the Apex Court held as follows: "Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of the Supreme Court. However, in almost all such decisions reference is made to the observations of the Privy Council in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67 . At one time it was held that the expression 'fact discovered' in the second is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kotayya's case. The various requirements of the section can be summed up as follows:- (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 35. In view of the principle laid down in the above decision, when a fact is discovered in pursuance of confession, discovery is only relevant piece of evidence, but it is not a substantive piece of evidence. 36. Even otherwise, in Abduwahab Abdulmajid Baloch v. State of Gujarat (2009) 11 SCC 625 the Apex Court, held as under:- "Be that as it may, we feel that only because the recovery of a weapon was made and the expert opined that the bullet found in the body of the deceased was fired from one of the weapons seized, by itself cannot be the sole premise on which a judgment of conviction under Section 302 could be recorded. Further, the recovery having been made after nine months, the weapon might have changed in many hands. In absence of any other evidence, connecting the accused with commission of crime of murder of the deceased, in our opinion, it is not possible to hold that the appellant on the basis of such slander evidence could have been found guilty for commission of offence punishable under Section 302 of the Penal Code." 37. Having regard to the judgments referred to above, the confession leading to discovery marked as Ex. P-3 and seizure of M.Os. 1 & 2 is though a strong link in the chain of circumstances, the same cannot form basis for conviction, as other links were not established by legal evidence. Therefore, the Court below rightly appreciated the evidence of P.W. 12 & 8 with regard to proof of Ex. P-3 and seizure of M.Os. 1 & 2 and arrived at a right conclusion which warrants no interference from this Court, while exercising power under Section 372 Cr.P.C. 38. Therefore, the Court below rightly appreciated the evidence of P.W. 12 & 8 with regard to proof of Ex. P-3 and seizure of M.Os. 1 & 2 and arrived at a right conclusion which warrants no interference from this Court, while exercising power under Section 372 Cr.P.C. 38. As discussed above, when the case of the prosecution totally rests on circumstantial evidence, the normal principle is that, in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. 39. But, in the present case, the prosecution miserably failed to establish identity of the person of the accused and property, but only established the unnatural death of the deceased, which by itself is not sufficient to interfere with the judgment supported by astounding reasons. Therefore, we find no error in the calendar and judgment, warranting interference of this Court. Consequently, appeal deserves to be dismissed, as it is devoid of merits. 40. In the result, the criminal appeal is dismissed, confirming the order of acquittal in S.C. No. 122 of 2011 passed by the II Additional Sessions Judge, Kadapa at Proddatur, finding the accused not guilty for the offence punishable under Sections 302, 120-B and 380 or 412 of Indian Penal Code. Consequently, miscellaneous applications pending if any, shall stand closed.