THE HON'BLE SRI JUSTICE M.LAXMAN
AND
THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL Nos.1088 OF 2013 and 894 of 2014
COMMON JUDGMENT: (per Hon'ble Sri Justice M.Laxman)
1.
These Criminal Appeals are directed against judgment of conviction dated 18.11.2013 in Sessions Case No.21 of 2013 on the file of the Sessions Judge, Nizamabad District (hereinafter referred to as 'trial Court'), whereunder the appellants in both the appeals, who are accused Nos.1 and 2 were convicted for the offence under Section 302 of IPC and Section 302 read with Section 109 of IPC respectively and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each; in default, to undergo simple imprisonment for one month each. Criminal Appeal No.1088 of 2013 is filed by accused No.1 and Criminal Appeal No.894 of 2014 is filed by accused No.2. Both the appeals are arising out of same sessions case as such they are disposed of commonly.
2. The case of the prosecution, in brief, is that accused No.1 and deceased are close friends. Accused No.2 is wife of deceased. Accused Nos.1 and 2 have developed extra marital relationship with each other and the said relationship came to the knowledge of the deceased. After which, there were frequent quarrels among the deceased and both the accused. On 2 account of quarrels, the brother-in-law of the accused No.1 shifted the family of accused No.1 to Medipally Village, Ghatkesar Mandal, Rangareddy District. Originally, the deceased and both the accused were belonging to MSC Farm, Jamlam Village, Yedpally Mandal. The extra marital relationship of both accused developed four years prior to the incident. On 12.01.2012, accused No.1 came to MSC Farm to offer prayer at Habeeb Sab Darga. During such a visit, accused No.2 met him and instigated accused No.1 to do away the life of deceased. Accused No.1 made 23 calls on 19.01.2012 and 4 calls on 20.01.2012 to accused No.2. Similarly, he also made 5 calls on 19.01.2012 and 9 calls on 20.01.2012 to the deceased.
3. According to the prosecution, on 20.01.2012 as per pre- plan accused No.1 purchased two bottles of acid in Hyderabad and started from Hyderabad. He got down at Bodhan Bus Stand, Nizamabad, and purchased one Black piper whiskey half bottle. At about 07.00 PM reached Yedpally by bus. The phone number of accused No.1 was 8096708049 and the phone number of deceased was 9010548374. At about 07.00 PM, accused No.1 made a phone call to deceased and requested him to come to Railway Gate, MSC Farm stating that he was brining liquor to celebrate. Accused No.1 reached Railway Gate at MSC Farm and mixed acid with liquor and made a phone call to the 3 deceased informing his arrival. When, the deceased reached the place, accused No.1 offered him liquor mixed with acid. The deceased consumed the same and became unconscious. Thereafter, accused No.1 strangulated him with towel and took the cell phone of deceased and went away. Subsequently, after 10 days of the incident accused No.1 allegedly went to P.W.6 and confessed about commission of offence. Accused No.2 was taken into custody on the date of offence.
4. The trial Court framed charges under Section 302 of IPC against accused No.1 and charges under Section 302 of IPC r/w Section 109 of IPC against accused No.2. The accused denied the charge and claimed to be tried.
5. The prosecution, to support its case, examined P.Ws.1 to 14 and got marked Exs.P-1 to P-15 and M.Os.1 to 6. The accused has not produced any evidence and denied the incriminating material on record.
6. The trial Court on appreciation of evidence on record found that charges were made out against both the accused and accordingly, they were convicted and sentenced to the terms indicated hereinbefore. Hence, the present appeals.
7. Heard both sides.
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8. Learned counsel for the appellants has contended that the trial Court has not properly appreciated the evidence on record. The prosecution tried to establish its case based on the circumstantial evidence. The circumstances relied upon by the prosecution were not properly established beyond reasonable doubt and the trial Court relied upon such circumstances while convicting the accused. It is also their contention that the motive for the offence is extra marital relationship between accused Nos.1 and 2 and such relationship was not spoken by P.W.1, whereas, P.W.5, who is mother of deceased claims that there was such extra marital relationship. Hence, in the light of inconsistent stands by the witnesses, the trial Court should not have accepted the statements made by the prosecution witnesses with regard to motive of the offence. Further, the recording of conversation and video clippings in the cell phone of accused No.1 were considered as evidence to show that there is relationship between both the accused which were not properly proved. The conversation and voice in it were not established with the help of any scientific evidence. Hence, such evidence ought not to have been relied upon by the trial Court while convicting the accused.
9. Learned counsel for both the accused also contended that extra judicial confession allegedly made by accused No.1 to 5 P.W.6 was not properly appreciated, as no reasons were given by P.W.6 that why accused No.1 came to him and made a confession. Further, the words spoken by the accused were not exactly reflected. P.W.6 claimed that after 10 to 15 days of incident, accused No.1 came to him and confessed. Whereas, the evidence of P.W.5 shows that accused Nos.1 and 2 were taken into custody on the date of incident only. The evidence of P.W.1 shows that accused No.2 was taken into custody on the 2nd day of incident and accused No.1 was taken into custody on the 10th day ceremony of his son i.e., the deceased. This inconsistency shows that accused No.1 was in custody prior to the alleged confession. This evidence goes to show that the claim of extra judicial confession was cooked story. There was no reason for the accused No.1 to go to P.W.6 for making confession and such alleged confession is shrugged with suspicious circumstances and the same should not have been relied upon by the trial Court.
10. It is further contended by the learned counsel for the accused that the other circumstance relied upon by the prosecution is recovery of cell phone of deceased from the possession of accused No.1. In the present case, two cell phones were seized from accused No.1, which are M.Os.4 and 5 and they are standing in the name of the deceased. The cell 6 phone of accused No.2 was also seized i.e., M.O.6 and the same also stands in the name of the deceased. No one identified the cell phone of the deceased. No witness has given the cell phone number of the deceased. When all the cell phones are in the name of deceased, the prosecution has to prove that which cell phone was used by the deceased and which one was given to accused No.1. When such a proof is not there, based on the call data it cannot be inferred that accused No.1 made calls to deceased. It can be reverse also. This is not properly considered by the trial Court.
11. It is also contended that the trial Court has wrongly relied upon the evidence of P.W.2 to connect the last seen together theory and there is no evidence that deceased and accused No.1 were last seen together. P.W.2 claims that he has seen the deceased at Railway Gate, but he did not see accused No.1. However, this link was tried to be connected basing on the statement made by the P.W.2 that when he spoke to deceased at Railway Gate, he told that he was waiting for one Mohd Khan. The statement of deceased that he was waiting for Mohd Khan cannot be admitted in evidence as it is hearsay evidence and this evidence was taken to connect the last seen theory circumstance which is wrongly done by the trial Court. 7 Therefore, the conviction is unsustainable and the appeal is liable to be allowed.
12. Learned Public Prosecutor contended that the circumstances relied upon by the prosecution were fully proved. The circumstances like motive, extra judicial confession, statement of deceased before P.W.2, recovery of cell phone of deceased from the possession of accused No.1 and conversation in between both the accused, wherein accused No.2 instigated accused No.1 to do away the life of deceased, are clearly established by the prosecution. It is further contended that the extra judicial confession made by P.W.6 is voluntary and the same is supported by corroboration. Hence, such confession was rightly relied upon by the trial Court. It is also contended that the cell phone which stands in the name of deceased is M.O.5. M.O.4 belongs to accused No.1, which he used to make calls to the deceased on the date of the incident. Similarly, the said cell phone was used by accused No.1 to call accused No.2, as is made out from the call data under Exs.P-13 to P-15. Hence, the conviction requires no interference.
13. A close scrutiny of evidence on record, the prosecution to establish the charges against both the accused placed reliance on circumstantial evidence apart from the extra judicial confession. The circumstances relied upon by the prosecution 8 are motive for the offence, statement of the deceased to P.W.2, while he was standing at Railway Gate, recovery of cell phone of the deceased, frequent calls in between the deceased, accused Nos.1 and 2 and video clippings and conversation in between accused Nos.1 and 2, which show that accused No.2 have been instigating accused No.1 to do away the life of deceased.
14. The Apex Court had occasions in several judgments to deal with proof of circumstantial evidence. The Apex Court in a recent judgment in the case of Ramanand @ Nandlal Bhari Vs. State of Uttar Pradesh1 extracted the observation of Mark Twain, the great American writer and philosopher dealing with circumstantial evidence, which reads as under:
"It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case."
15. The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions cannot take place on 1 2022 SCC Online SC 1396 9 legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. The conclusion of guilt should be drawn, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. In applying the principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered.
16. In the present case, for establishing the motive the prosecution relies upon the evidence of P.W.1 and 5 and video clippings conversation in the cell phone of the deceased. Undisputedly, the voices in the clippings and conversation have not been established. The evidence is also lacking with regard to ownership of cell phone in which the clippings and conversation were found. No doubt in the conversation female was asking to do away with the life of deceased. Unless, the phone in which the video clippings and conversation were recorded is 10 established that it belongs to accused No.1, such conversation is of not much help.
17. The evidence of P.W.1, who is the father of deceased, does not reveal anything with regard to extra marital relationship between accused No.1 and 2, whereas, P.W.5, the mother of the deceased, speaks about such relationship. There is evidence of photographs in memory of M.O.4 i.e., cell phone, to show that accused Nos.1 and 2 were closely moving. This piece of evidence do not establish the ownership of cell phone as that of accused No.1, but photographs establish the close movement of accused Nos.1 and 2. This corroborates the substantive piece of evidence of P.W.5, the mother of the deceased. We fully agree with the trial Court with regard to proof of motive.
18. The evidence of P.W.2 shows that at about 04.00 to 04.30 PM, he found deceased was at the Railway Gate, MSC Farm and on enquiry he told that he was waiting for Mohd Khan. It is not known whether Mohd Khan means accused No.1 only and P.W.2 knows Mohd Khan previously as accused No.1. The evidence is silent with regard to prior acquaintance of P.W.2 with Mohd Khan. The case of the prosecution is that accused No.1 made a call to the deceased from bus stand at Yedpally at 07.00 PM. When such is the case, the evidence of P.W.2 to the effect that he had found the deceased at Railway Gate waiting for Mohd 11 Khan appears to be false. Further, in cross-examination he admitted that initially suspicion was raised on him for death of the deceased. The statement of deceased to the P.W.2 is inadmissible as it is hearsay evidence. Therefore, this evidence does not help to prove the circumstances of last seen. This circumstance has no relevance and in fact is not proved.
19. The other circumstance is recovery of M.O.5 i.e., the cell phone of the deceased from the possession of accused No.1. P.W.8 and 9 were witness for seizure and they supported recovery of M.O.4 and 5. According to the prosecution, M.O.4 cell phone belongs to accused No.1 and M.O.5 cell phone belongs to deceased. The evidence of P.W.14 and Exs.P-13 and P-14 show that cell phone under M.O.4 to 6 are standing in the name of deceased. If such is the evidence, the prosecution out of two seized cell phones seized from accused No.1 shall establish that M.O.5 belongs to deceased. Absolutely, no such evidence is found. M.O.5 is not confronted to the parents of the deceased to prove that cell phone under M.O.5 was used by deceased. When M.O.5 is not proved to that of deceased, it cannot be said that deceased was using M.O.5 and accused No.1 was using M.O.4. The prosecution also failed to establish that why M.O.4, which is standing in the name of deceased was in the hands of accused No.1. Unless, M.O.5 is identified to be 12 that of deceased, on account of all the cell phones being in the name of the deceased, it cannot be said that M.O.5 is cell phone of the deceased. This evidence was not properly appreciated by the trial Court.
20. Exs.P-13 to P-15 are call details. No doubt the call data supports the frequent calls among three cell phones. It is not known whether the deceased was calling or accused No.1 was calling. This ambiguity is not cleared by the prosecution. Therefore, call data which is collected is not of much use. This circumstance is also not established beyond reasonable doubt.
21. The last piece of evidence relied upon by the prosecution is the evidence of P.W.6, who is the witness for extra judicial confession. According to P.W.6, who is elder of MSC Farm, after 10 to 15 days of the incident accused No.1 came to him at about 8.00 to 8.30 AM and met him and confessed that he murdered deceased by administering acid and liquor, after that he throttled the neck of the deceased with towel. He also confessed that accused No.2 abetted him to murder the deceased and 15 days prior to that both the accused met at Habeeb Sab Darga.
22. A close scrutiny of P.W.6 evidence shows that he is labour by profession and he also claims that he conducted panchayat with regard to extra marital relationship between both the 13 accused and he advised accused No.1 to live with his family and accused No.2 with her family. On that advice, accused No.1 left to Hyderabad. There is no investigation in this regard and investigation is silent about the holding of such panchayat. In fact, it is the case of prosecution that brother-in-law of accused No.1 intervened in dispute with regard to quarrel between the deceased and the accused on account of alleged extra marital relationship and he shifted the family of accused No.1 to Medipally Village, Ghatkesar Mandal. In the entire evidence of P.W.6, it is not known why accused No.1 chose him to make confession. According to P.W.6, accused No.1 came to him in the morning time at Satapur village gate. The investigation is silent with regard to place and time of such confession to P.W.6.
23. The principles governing the evidentiary value and admissibility of extra judicial confession is that such a confession should be voluntary, true and made in fit state of mind, only then such confession can be relied upon as any other fact. It depends on the veracity of the witness to whom it is made. The person, to whom such a confessions are made must be unbiased and even remotely inimical to the accused and nothing is brought against such witness which may tend to indicate that no motive of attributing untruthful statement to 14 the accused. Such statement must be clear from ambiguity and true words of such confession must be given.
24. A close scrutiny of evidence of P.W.6 shows that no valid reason is found that why accused No.1 chose P.W.6 to make such a confession. He claims to be elder of the village and conducted panchayat, but no witness spoke about such panchayat, more particularly, the parents of the deceased. In fact, it is the case of the prosecution that the dispute was resolved by the brother-in-law of accused No.1 and not P.W.6. Further, P.W.6 is not friend of accused No.1, but he is friend of brother of accused No.1. If the relationship of P.W.6 and accused No.1 is very close so as to make confession, before accused No.1 approached P.W.6, he would have made a call about his visit. The cross-examination of P.W.6 shows that no call was made by accused No.1 and it was accidental meet at Satapur Village Gate. P.W.6 did not explain why he was waiting at Satapur Village Gate and how accused No.1 knows about the presence of P.W.6 at Satapur Village Gate. According to prosecution, the alleged confession was made on 06.02.2012, but the evidence of P.W.5 shows that the police took both the accused into custody on the immediate day after the incident. Whereas, the evidence of P.W.1 shows that accused No.2 was taken into custody on the immediate date of incident and 15 accused No.1 was taken into custody on the 10th day ceremony of the deceased. According to prosecution, accused Nos.1 and 2 were arrested on the same day. If this is true, version of P.W.5 must be believed. This also creates doubt on the alleged extra judicial confession of accused No.1. This evidence is also not inspiring truthfulness of such confession. Further, the entire words spoken by accused No.1 are not reflected by P.W.6. In the background of such evidence, this Court feels that the evidence of P.W.6 is not free from doubt and not inspiring the confidence of this Court.
25. In view of the above, the prosecution failed to prove that all the circumstances relied upon by them excluding the innocence of the accused and point out involvement of the accused in the alleged offence. It is unsafe to rely upon the evidence and the benefit of doubt must go to the accused. Hence, both the accused are entitled for acquittal.
26. In the result, both the Criminal Appeals are allowed. The judgment and sentence of conviction dated 18.11.2013 in Sessions Case No.21 of 2013 on the file of the Sessions Judge, Nizamabad District, is set aside. The fine amount, if any paid shall be refunded and both the accused shall be forthwith released from the prison, if they are still in the custody and if 16 their detention is not required in connection with any other case.
_______________ M.LAXMAN, J ___________________________ SMT. JUVVADI SRIDEVI, J Date: 18.04.2023 GVR