Telangana High Court
Kothuri Nadipi Pedda Rajam vs The State Of Telangana on 29 April, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE JUSTICE SAMBASIVARAO NAIDU
I.A.No.1 of 2023
IN/AND
CRIMINAL APPEAL No.2643 OF 2018
JUDGMENT:
(per the Hon'ble Sri Justice P.SAM KOSHY) Heard Mr.S.Nagender, learned counsel for the appellants/accused Nos.1 & 2 and Ms.Shalini Saxena, learned Assistant Public Prosecutor. Perused the material available on record.
2. The instant is a bail application filed under Section 374 (2) of Criminal Procedure Code, assailing the judgment of conviction in S.C.No.342 of 2013, passed by the Principal Sessions Judge, Adilabad.
3. Vide the said impugned judgment, the Court below has found the two appellants herein guilty of having committed the offence under Section 302 and 201 read with Section 34 of Indian Penal Code, 1860 (for short, the 'IPC'). The two appellants, were sentenced to Rigorous Imprisonment for life with fine of Rs.5,000/- and with default stipulation for the offence under Section 302 and further sentenced to Rigorous Imprisonment for Page 2 of 19 five years with fine of Rs.2,000/- with default stipulation for the offence under Section 201 read with Section 34 of IPC.
4. The appeal is of the year 2018.
5. The bail petition earlier was rejected by this Bench when the appeal was admitted after hearing on 01.10.2018.
6. Today, the matter was taken up for consideration on I.A.No.1 of 2023, which is an application for suspension of sentence moved on behalf of the appellant/accused No.1.
7. The primary ground on the basis of which the suspension was sought was the period of custody undergone by the appellants herein being more than five years, in the light of the decision of the Division Bench of this Court in Crl.A.M.P.No.1687 in Crl.A.No.607 of 2011 decided on 19.12.2016.
8. Upon appreciation of the evidence which have come on record, we found it more appropriate to decide the appeal itself on merits rather than deciding the I.A.No.1 of 2023 which is for suspension of sentence.
9. Accordingly, with the consent of the learned counsel for the appellant and also learned Assistant Public Prosecutor, we proceeded to decide the appeal itself on merits. Page 3 of 19
10. The case of the prosecution in brief is that the appellant/accused Nos.1 and 2 along with two other accused had conspired and later killed the deceased by throttling to death and thereafter drowned the dead body in the well which situates in the field of PW-1. On the recovery of the dead body and later the complaint lodged by PW-2, the father of the deceased had suspected the involvement of appellant/accused Nos.1 and 2 in so far as causing the death of the deceased. They were taken into custody and at the behest of the Police Authorities of Police Station Khanapur, there was a confession made by the appellant Nos.1 and 2 in the presence of PW-10. That on the basis of the said judgment, the Charge Sheet was filed and the matter was put for trial before the Principal Sessions Judge, Adilabad, where the case was registered as S.C.No.342 of 2013. The crime that was registered was Crime No.5 of 2013 in Khanapur Police Station.
11. The prosecution in all examined thirteen (13) witnesses i.e., PW-1 to PW-13. There was no witness on behalf of the defence. Subsequently, after recording the statements under Section 312 of the appellants, the impugned judgment of conviction has been passed.
12. Initially, the Charge Sheet was filed against four accused persons. Since accused No.3 Bhole Bhumesh, S/o.Duganna, was Page 4 of 19 absconding all along, his trial was separated and other three accused were put to trial.
13. Vide the impugned order, the Court below found that the prosecution has failed to lead sufficient evidence so far as the involvement of the accused No.4, Kothari, S/o.Vedula, for the offence under Section 302 and 201 read with Section 34 of IPC and accordingly, the accused No.4 was acquitted.
14. However, the learned Sessions Judge found the appellant/accused Nos.1 and 2 to be guilty of the offence under Section 302 and 201 of IPC and for which after conviction they have been sentenced for the period which is already stipulated in the preceding paragraph.
15. Learned counsel for the appellants contended that the entire case is based on circumstantial evidence and that there is no proof whatsoever cogent enough on the part of the prosecution to establish and conclude that the offence could have been committed only by the appellants herein and not by any other person. It was also the contention of the learned counsel for the appellants that even if the entire version of the prosecution is accepted as it is, there is no way of links made out so as to reach Page 5 of 19 to the only conclusion of the offence to have been committed by the appellants alone.
16. According to the learned counsel for the appellants the very basic materials required for establishing of an offence which is to be proved on the basis of circumstantial evidence is not available. Neither is there strong motive involved, nor is there the evidence on last seen theory. The so-called confession made before the PW-10 also has no admissibility value, as admittedly the so-called confession made by the appellant Nos.1 and 2 was in the presence of the Police Authorities themselves. Moreover, the categorical stand of PW-10 was that when the confession was made before him he was already with Police authorities who had called him to be a punch witness for the confession statement.
17. It was also the contention of the learned counsel for the appellant that the judgment of conviction further also is not sustainable for the reason that the cause of death also cannot be admissible also to be that by throttling as would be evident from the postmortem report itself. In the postmortem report it is revealed that there was water found in the lungs of the deceased. The fact that the postmortem report shows water in the lungs give rise to a doubt of the deceased being alive at the time when he had fallen or thrown by the accused persons. That in the absence of Page 6 of 19 cogent and concrete evidence of the death having arisen due to throttling, the case of the prosecution gets weakened. The entire case of the prosecution therefore gets collapsed. The fact that the death of the deceased to be by way of drowning cannot be ruled out, in the factual backdrop available on record, particularly, the postmortem report Ex-P-18.
18. Per contra, the learned Assistant Public Prosecutor opposing the appeal submits that the prosecution has proved its case beyond reasonable doubts as would be evident from the evidence which has been led before the trial Court. Therefore, the judgment of conviction does not require any interference.
19. According to the learned Assistant Public Prosecutor, it is a case where the PWs-2 and 3, the parents of the deceased have categorically stated that their son have gone missing from the time the deceased left the house in company of the appellant No.2 on the garb of watching a movie in one of the theaters in village khanpur.
20. The learned Assistant Public Prosecutor further contended that so far as motive is concerned, there was a motive for the appellant to have committed the offence for the reasons that he found the deceased to be maintaining illicit relationship with the Page 7 of 19 wife of the appellant No.1. The appellant No.1 had personally found the two persons together and had warned both the deceased as also his wife. This fact also stands proved from the statement of PWs-2 and 3. Further, the learned Assistant Public Prosecutor contended that the police in the course of investigation have also recovered a belt and Bajaj Chetak Scooter belonging to the deceased at the instance of the appellant Nos.2 and 2 and also from the house of the appellant. Which again thereby becomes incriminating material on the part of the prosecution in proving its case. Lastly, it was contended that the statement of PW-10 before whom the accused Nos.1 and 2 made a confession which completes the chain of links so far as the circumstantial evidence is concerned and therefore, the appeal deserves to be rejected.
21. Having heard the learned counsel on either side, some of the admitted factual matrix is revealed from the material papers available on record, the deceased herein was a young boy, aged around 21-22 years. He was living in the neighborhood of the appellant No.1. The appellant/accused No.2 is said to be the friend of the deceased. The deceased went missing from 06.01.2013, when he left his house to watch a movie at Khanapur. The deceased has gone to watch movie along with appellant No.2 at around 11 A.M. on 06.01.2013. PW-2, the father of the Page 8 of 19 deceased went to lodge a report at Khanapur Police Station only after three to four days. That when PW-2 had reached the Police Station, he was informed by the Police Authorities about the dead body being found at the well in the fields of PW-1. The body by then had already started decomposing and was putrefied state and the tender parts of the body were in a putrefied state and the tender parts of the body was eaten by the fish and other living creatures in the well. The postmortem was conducted on 10.01.2013 at around 11:30 A.M. The postmortem was conducted by PW-11, viz., Dr.Venugopalakrishna, Civil Assistant Surgeon at Government Hospital at Khanapur at the relevant point of time.
22. The Doctor conducting the postmortem has opined the cause of death to be "the cause of death to the best of my knowledge and belief is due to shock due to asphyxia due to THROTTLING".
23. Before we proceed further, it would be relevant to take note of the factual details found in the course of the postmortem. The material portion of the postmortem is being reproduced herein under:
"Unable to identify as the dead body is putrified and in the process of decomposition.
A male body lying flat with the eyes opened. Mouth opened. Tongue swollen and visible out and distended. Foul smelling. The greenish black in appearance. Skin peeled off in various areas. Neck Page 9 of 19 swollen and dark colored. Palms and soles wrinkled and pale.
Entire body is in the process of decomposition. INJURIES:-
Laceration of about 4x22 cms oval in shape on the neck region below chick, is seen.
Left ear and parts of soft tissues of different areas are eaten away by water animals.
Skull and brain- tissues are in the procees of putrefication.
Neck is thickened, swollen and darkened in both sides. Mouth is opened. Lips swollen. Tongue is swollen and seen outside.
Blood stained watery fluid present. Water present in the lungs.
Hyoid bone is intact with the thickened tissues."
24. Coming to the circumstantial evidence as has been contended by the learned Assistant Public Prosecutor, the first contention is that of the last seen theory. According to the prosecution, the deceased was last seen together with the appellant No.2. It is said that on 06.01.2013, accused No.2 went to the house of deceased and took him to watch a movie at village Khanapur. Thereafter, the deceased is said to be missing. However, there is no cogent evidence led on the part of the prosecution to show that after 06.01.2013 or on 06.01.2013 itself, the deceased was murdered from the statement of PW-2. The father of the deceased on the very next day i.e., on 07.01.2013 at around 4 A.M. in the morning itself had gone to the house of the accused No.2 inquiring about his missing son from their residence to the house of the appellant No.1 and if the statement Page 10 of 19 of PW-2 is to be believed at 4 A.M. in the morning itself both these persons were found at their respective houses. Which itself shows that things were too natural at their end and that it would not have been a natural reaction if they would had committed the murder and immediately come back to their respective residence peacefully.
25. However, what is also reflected is that the father also did not lodge a missing complaint even then that both the accused had expressed their ignorance of the whereabouts of the deceased. According to the PW-4, he went to the Police Station after three or four days and when he had reached to the police station, the police had informed him about the dead body found. The police took PW-1 to the well where the body was found and he identified it to be of his son. This again seems to be un-natural conduct on the part of the father whose only son was missing from 06.01.2013 and he does not go to the police station even for lodging a missing report.
26. Thus, the last seen theory propounded by the prosecution in the given factual backdrop does not seem to be convincing that of the deceased to be found in the company of the accused No.2 when they had gone to the cinema and even after the cinema. Page 11 of 19
27. The prosecution has not conducted any investigation so as to even verify the fact whether the deceased and the appellant No.2 had gone to any of the theaters in village Khanpur to watch a cinema. It further weakens the case of the prosecution.
28. As regards the second stance, what action is reflected from the postmortem report is that of water being found in the lungs of the deceased. It is a known fact that if it would have been a case of throttling and the deceased having died before being thrown into the well there was hardly any scope for water to enter the lungs of a dead body. The fact that in the course of conducting the Post-Mortem the Doctor found water gives rise to a serious doubt as to whether the deceased fell into the well or was thrown in the well alive or dead. The finding of water in the lungs of the deceased indicates that the deceased was alive when he fell into the well or when he was thrown in the well: either of the possibilities cannot be proved. If that is the situation, the entire case of the prosecution itself would get collapsed for the reason that the prosecution has been sticking on one particular stand that the appellants had throttled the deceased to death and thereafter he was thrown into the well. The medical evidence does not support this theory propounded by the prosecution. This finding in the Post-Mortem also breaks the chain of links required Page 12 of 19 in a case of circumstantial evidence. Another fact which needs to be appreciated is that the father of the deceased (PW-1) in his cross-examination in chief has made a categorical disclosure that he had gone to the house of the accused Nos.1 and 2 inquiring about the whereabouts of his missing son and both of them did not give a satisfactory reply. The said deposition of PW-1 established the fact that both the appellants were available at their respective residences on the day when the deceased had gone missing. Another fact which is something unnatural is that though the PW-1 (father of the deceased) has stated to have gone to the house of both the appellants on the very same night but could not get a favourable response or information, yet as per the deposition of PW-1 itself, he went to the Police Station after three or four days which does not appear to be a natural reaction of a father whose only son has gone missing and it is in this context that this Court presumes that perhaps the statement given by PW-1 may be on account of instructions provided by the Prosecution so as to make out that the case of the appellant is stronger.
29. Another aspect which is difficult to accept from the prosecution side is that the accused No.2, who was in fact the friend of the deceased, might have helped the accused No.1. Page 13 of 19 Whereas the accused No.2 and accused No.1 have not stated or claimed to be good friends. Apart from the aforesaid circumstances which have been discussed in the preceding paragraphs, there does not seem to be any further strong materials available or brought by the prosecution to establish the offence. PW-8, who was one of the persons who had first seen the dead body floating in the well, has stated that one cycle tube was tied around the waist of the dead body. There is no further averment whether there was a big stone tied to the tube so that the dead body does not float and would be drowned because of the weight of the stone, nor is there any indication by the prosecution to show that the other end of the tube also had a knot which must have been tied to a stone. The case of the prosecution here also is not very convincing. The possibility of the deceased who did not knew swimming having entered the well with a tube around his waist and if the air in the tube got released, the deceased would not have got drowned, cannot be ruled out. It is nobody's case that the deceased knew swimming.
30. Another aspect which does not have a convincing explanation on the part of the prosecution is the retaining of one leather belt and the Bajaj Chetak Scooter with its R.C. book at the instance of accused No.1. The leather belt and the Bajaj Chetak Page 14 of 19 Scooter are things which are quite familiar to the family members and the neighbours, and they could have been easily identified by the neighbouring people as belonging to the deceased. In the said circumstances, it is difficult to accept that after appellants would kill the deceased, they would retain the leather belt and the Bajaj Chetak Scooter with the appellant No.1. The prosecution only says of having recovered the aforesaid two items, viz., leather belt and Bajaj Chetak Scooter at the instance of Appellant No.1, but it does not disclose as to the place from which it was seized.
31. Now we go to the legal position as to whether in the aforesaid chain of events and the links attached are sufficient to meet the requirements in a case of circumstantial evidence to hold a person/persons guilty of having been committed the offence of murder.
32. The High Court of Kerala in the case of Raman vs. State of Kerala 1 in paragraph Nos.12 to 17 has held as under:
"12. The learned counsel for the appellant submitted that the evidence of PWs. 1 to 3 cannot be believed. She submitted that the behaviour of PW 1 is suspicious since he did not go to the house of the accused on the information given by the accused that the deceased did not take water and the accused had beaten her. The learned counsel also submitted that the recovery of material objects is doubtful and many blood stained articles alleged to have been seized by the police were not 1 2015 SCC OnLine Ker39691 Page 15 of 19 sent for Chemical Analysis. The learned counsel also submitted that even assuming that the accused has committed any offence, it would not attract Section 302 of the IPC and at best, the offence would be one under the second part of S. 304, IPC.
13. She also relied on the decision of the Supreme Court in Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839).
14. As stated earlier, there is nothing to disbelieve the evidence of PWs. 1 to 3. We do not also think that the conduct and behaviour of PW 1 was suspicious in the facts and circumstances. MOs. 1 to 3 were seized as per Ext. P4 Scene Mahazar. As rightly held by the court below, we do not think that MOs. 1 and 3 were recovered as per Ext. P3 Mahazar. The prosecution case to that extent is not believable.
15. In Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839), the Supreme Court held thus:--
"After giving our anxious consideration in the matter and after analysing the entire evidence, we are of the view that it is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304, Part-II, IPC will be just and proper."
16. In Anil v. State of Kerala (2014 (4) KLT 489), a Division Bench of this Court held thus:
"But, the nature of the transaction and all attendant circumstances would clearly show that the alleged acts, though could have been done with the knowledge that they are likely to cause death, were evidently done without any intention to cause death or to cause such bodily injury as is likely to cause death. Under such circumstances, we are of the view that the legal evidence on record proves, only that the accused had committed the offence punishable under Part-II of S. 304, IPC. The conviction and Page 16 of 19 sentence are, therefore, to be altered accordingly."
17. Ext. P4 Scene Mahazar shows that one crow bar and a hammer were found in the house of the accused. There is no case that the crow bar or hammer were used by the accused to beat his wife. On the other hand, the specific case of the prosecution is that the accused inflicted injuries on the deceased with M.O. 1 and M.O. 2. When PW 9 was examined, he was asked whether the injuries could be caused with M.O. 1 stick. It is also alleged that M.O. 3 stem of a coconut leaf was also used for inflicting the injuries. From the facts and circumstances, it is not discernible that the injuries were inflicted with an intention to cause the death of the victim or to cause such bodily injury as is likely to cause death. However, it is clear that the acts were done by the accused with the knowledge that it is likely to cause death of the victim. We are of the view that the offence under Section 302, IPC is not attracted in the case and only an offence under Section 304 Part-II, IPC is made out."
33. Further, the Hon'ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava vs. State of Gujarat 2 laying down the basic parameters to consider while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC in paragraph Nos.6 to 8 as held as under:
"6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3- 2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the 2 (2018) 4 SCC 329 Page 17 of 19 deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.
7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.
8. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting the blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part II IPC and not Section 302 IPC."
Page 18 of 19
34. In the light of the aforesaid judicial pronouncements and the principle laid down therein when we look into the facts of the present case, the discrepancies, doubts and the suspicion referred to firstly being as to whether the death of the ceased was in fact due to drowning or throttling ? secondly, whether the theories of last scene are leading to any conclusive proof of the availability of the appellants anywhere near? and thirdly, whether the so-called circumstantial evidence collected in the course of the investigation, can it be conclusively held that the offence to have been committed only by the appellants alone and not by anybody else if at all if it is a case of murder? The other general circumstance also referred to and relied on by the Trial Court also does not seem to be convincing and strong enough to find the appellants themselves having the motive of committing the offence of murder. Therefore, the appellant Nos.1 and 2 are therefore entitled for the benefit of doubt which is relevant to the facts discussed in the preceding paragraphs. Hence, granting the benefit of doubt in favour of the appellants, we hold that the prosecution has not been able to prove its case beyond all reasonable doubt. As a consequence, the appeal deserves to be allowed, and the appellants stand acquitted of the charges levelled Page 19 of 19 against them. The appellant Nos.1 and 2 shall be released from jail forthwith, if they are not wanted in any other criminal case.
35. Accordingly, the Appeal stands allowed. No costs.
36. As a sequel, miscellaneous applications pending if any, shall stand closed.
____________________ P.SAM KOSHY, J ______________________________ SAMBASIVARAO NAIDU, J Date: 29.04.2024 AQS/Ndr