Telangana High Court
Mohammed Khaja , Karate Khaja vs The State Of A.P., on 11 January, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL No.224 OF 2014
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Mr. S.M. Rafee, learned counsel for the appellant and Mr. Muthyala Muralidhar, learned Additional Public Prosecutor appearing on behalf of the respondent.
2. This appeal is filed challenging the judgment dated 12th and 18th November, 2013 in S.C. No.336 of 2012 passed by learned III Additional District and Sessions Judge at Gadwal.
3. The appellant herein is the sole accused in the aforesaid S.C. No.336 of 2012. For the sake of convenience, the parties are hereinafter referred to as they were arraigned in S.C. No.336 of 2012.
4. Vide the aforesaid judgment, learned Sessions Judge convicted the appellant - accused for the offences under Sections - 364A, 302, 379 and 201 of IPC and imposed life imprisonment and other imprisonments for the said offences.
5. The case of the prosecution is as follows:
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i) The accused, native of Gadwal town, is a tailor by profession. PW.1 and LW.2 are the parents of the deceased - Ityala Bhadrinath, while PW.2 is his elder brother. PW.1, a businessman is also native of Gadwal Town.
ii) The accused joined in the tailor shop of one Mr. Nasir situated in front of the cloth merchant of PW.3, paternal uncle of the deceased, and worked there for about 4-5 years. While working in the said tailor shop, the accused used to visit the house of PW.3 and PW.1 and developed intimacy with their family members by visiting their house to give vegetables.
iii) The accused married Smt. Nasima Begum and blessed with two (02) daughters and one (01) son. He opened a separate tailor shop, but was unable to bear the family expenses with the earnings on the said tailoring work. Therefore, he decided to earn money easily, and illegally and accordingly hatched a plan to kidnap and earn money.
iv) On 27.02.2012 at 1400 hours PW.1, father of the deceased, lodged a complaint with Gadwal Town Police Station stating that his son (deceased), aged 19 years, studying B.Tech., Course at Kottam Tulasi Reddy College, left the house on 26.02.2012 at about 1730 3 KL,J & PSS,J Crl.A. No.224 of 2014 hours informing him that he is going to watch Cinema and did not return home in the night. He searched for son in the night as well as 27.02.2012 morning at his college and with his friends. But, he could not trace his son.
v) On receipt of the said complaint, the police registered a case in Crime No.26 of 2012 under 'man missing' and took up investigation.
vi) During investigation, on 01.03.2012, PW.1 reported the police that on 27.02.2012 and 28.02.2012 he made phone call to his son's mobile, an unknown person spoke and informed him that he had kidnapped his son and demanded Rs.25.00 lakhs and also informed that the pant of his son was thrown in the premises of his house.
vii) During investigation, it is revealed that pursuant to the said plan, the accused decided to kidnap the deceased since he was physically weak and PW.1 is financially well and accordingly on 26.02.2012 at about 2000 hours, the accused found the deceased alone proceeding towards his house, convinced him to accompany the accused on his motorcycle to get onions from Kothapally Village. The accused took the deceased on his motorcycle and went to Kothapally Lift Irrigation Pump House. PW.5 and LW.7 found the 4 KL,J & PSS,J Crl.A. No.224 of 2014 deceased in the company of the accused as pillion rider of the motorcycle.
viii) The accused snatched the cell phone of the deceased and told that he kidnapped him. When the accused tried to keep the deceased in pump house through the window of pump house, the deceased did not co-operate and tried to escape. Then the accused caught hold and strangulated him to death with rope. After committing murder, the accused shifted the dead body on his motorcycle to grave yard in the limits of Nadi Agraharam village, laid on cremation structure of Brahmin Community, snatched away gold chain with gold locket. The accused removed the pant of the deceased, poured petrol from his motorcycle tank and burnt the body. Later, the accused threw the pant of the deceased at the house of PW.1 and informed him that he kidnapped the deceased and demanded ransom of Rs.25.00 lakhs.
ix) During investigation, the police examined the witnesses and recorded the statements of witnesses and also conducted autopsy over the dead body of the deceased and altered the section of law from man missing to 302, 201, 364A and 379 of IPC on 01.03.2012. After completion of investigation, the police filed charge sheet and the same 5 KL,J & PSS,J Crl.A. No.224 of 2014 was committed to the Sessions Judge which was numbered as Sessions Case No.336 of 2012.
6. The learned Sessions Judge after framing the charges for the aforesaid offences proceeding with trial. During trial, PWs.1 to 13 were examined and Exs.P1 to P14 were marked and so also MOs.1 to
7. The accused neither examined any witness nor marked any document on his behalf.
7. After hearing both sides and perusing the entire evidence, both an oral and documentary, the learned Sessions Judge recorded conviction against the appellant herein and accordingly imposed life imprisonment and other imprisonment on him for the aforesaid offences.
8. Challenging the said conviction and sentences of life and other imprisonment, the accused preferred the present appeal.
9. Learned counsel for the appellant - accused would contend that the evidence of prosecution witnesses is not consistent and cogent inspiring confidence to record conviction. The prosecution planted material witnesses and falsely implicated the accused. The prosecution failed to establish the identity of dead body as that of the 6 KL,J & PSS,J Crl.A. No.224 of 2014 deceased. Failure to collect and send samples to DNA and FSL for analysis to prove that the dead body is that of the deceased is fatal to the prosecution case. There was delay in lodging the complaint with police and issuance of FIR. The last seen theory said to have spoken by PW.5 is not convincing and he is a planted witness. Prosecution utterly failed to prove motive and ingredients of Section - 364A of IPC. Without considering all the said aspects, the trial Court recorded conviction and imposed imprisonment for life which is illegal and, therefore, the same is liable to be set aside.
10. On the other hand, learned Additional Public Prosecutor would submit that the trial Court considering the depositions of prosecution witnesses and also medical evidence convicted the appellant. There is no error in it.
11. In view of the above rival submissions, the only issue that falls for consideration by this Court is:
Whether the conviction recorded by the trial Court for the offences under Sections - 364A, 302, 379 and 201 of IPC against the appellant - accused is sustainable, both on facts and in law?7
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12. PW.1, father of the deceased, deposed about receipt of call on 27.02.2012 night to his mobile number No.9441166942 informing that his son was kidnapped and demanded Rs.25.00 lakhs for release of his son. The voice of the said person is very familiar voice to him.
13. PW.2, elder brother of the deceased, deposed with regard to the receipt of call by his father, informing that the said person kidnapped his brother, demanded an amount of Rs.25.00lakhs, placed the pant of the deceased in the compound of his house. MO.1 is the pant of the deceased which was found in the compound of their house.
14. PW.3, junior paternal uncle of the deceased also deposed on the same lines as deposed by PW.2.
15. PW.4 is the photographer, who took the photographs of half burnt dead body of the deceased found in burial ground.
16. PW.5, an eye-witness, deposed that about 10 months ago at about 8.00 P.M. while he and LW.7 were near Andhra Bank ATM situate near Municipal Office, Gadwal, they noticed that the deceased was in the company of the accused and they were proceeding in a motorcycle towards cinema talkies road.
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17. PW.6, tailor deposed that he and LW.9 took training in tailoring from the shop of the accused.
18. PW.7, neighbor of the accused, deposed that about 10 months ago, the accused locked his house and did not come.
19. PW.8, mediator for scene of offence and inquest, deposed that the police seized jean pant (MO.1) from the house of PW.1 under the cover of Ex.P4 - panchanama in his and LW.13 presence. The police also got conducted inquest over the dead body of the deceased in their presence under Ex.P5.
20. PW.9, mediator for confession and recovery of material objects, deposed that in the presence of himself and LW.14, the accused confessed that he killed the deceased by strangulation and burnt the dead body of the deceased with petrol at the burial ground. The police recovered two cell phones, gold chain and motorcycle from the accused in their presence which are MOs.3 to 6 and drawn confessional and recovery panchanama, which is Ex.P7.
21. PW.10, the doctor, deposed that he conducted post-mortem examination over the dead body of the deceased under Ex.P11. According to him, the cause of death was possibility of strangulation. 9
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22. PW.11 is the Sub-Inspector of Police and he deposed about receipt of Ex.P1 from PW.1 and registration of crime and issuance of FIR etc.
23. PW.12 is the Inspector of Police and he deposed about his examination of PW.1 and recording of his statement under Section - 161 of Cr.P.C. and also seizure of MO.1 pant from the compound of house of PW.1 and taking steps for conducting post-mortem over the dead body of the deceased.
24. PW.13 is another Inspector of Police deposed about conducting investigation, examination of witnesses and recording their statements. He also deposed about arrest of the accused and recovery of MOs.3 to 6 and preparation of panchanama and rough sketch and after completion of investigation filing the charge sheet.
25. Attacking the impugned judgment, Mr. S.M. Rafee, learned counsel for the appellant - accused, made the following submissions:
i) There is no direct evidence;
ii) Entire case rests on circumstantial evidence;
iii) Prosecution failed to prove motive;
iv) The Investigating Officer did not collect call data to prove that PW.1, father of the deceased, received call from the accused and 10 KL,J & PSS,J Crl.A. No.224 of 2014 demanded ransom. Certificate issued under Section - 65B of the Indian Evidence Act, 1872 was not filed in support of Ex.P14;
v) The dead body was not recovered and only part of the body was recovered;
vi) DNA test was not conducted;
vii) Prosecution utterly failed to prove the ingredients of Section - 364A of IPC;
viii) The version of prosecution that accused brought the dead body 10 kilometers in gunny bag is not proved and the same is improbable;
ix) There are serious contradictions in the depositions of prosecution witnesses. PW.5 is a planted witness. The deceased is an Engineering Student and, therefore, there is no question of deceased accompanying the accused to the alleged scene of offence.
x) Even with regard to the recovery, there are serious contradictions. FSL report was not obtained. Ex.P11 is not complete post-mortem examination report and the same was not marked.
xi) Prosecution failed to prove that the accused either carried petrol to burn the body of the deceased or that he took the petrol from 11 KL,J & PSS,J Crl.A. No.224 of 2014 his bike. The details and photograph of the deceased was not enclosed along with Ex.P1 complaint.
xii) Identification of the accused is not proved. Prosecution utterly failed to prove that the accused disappeared after the incident.
The Investigating Officer failed to conduct any investigation to prove the ownership of MO.6, motorbike.
xiii) There is delay in sending the FIR to the Court. Chance prints were not obtained. The prosecution has to prove the guilt of the accused beyond reasonable doubt. In the present case, the prosecution failed to prove the same. The chain is missing in the circumstances relied on by the prosecution. Therefore, the trial Court cannot convict the accused relying on the circumstantial evidence where important chain is missing. Thus, the accused is entitled for acquittal.
26. On the other hand, learned Additional Public Prosecutor would contend as follows:
i) Prosecution proved the guilt of the accused beyond reasonable doubt.
ii) Conviction was recorded against the accused basing on the following important aspects/circumstances: 12
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a) Close acquaintance of the accused with the deceased;
b) Last seen theory;
c) Accused disappeared immediately after the incident;
d) Recovery of MOs.1 to 7.
iii) The Investigating Officer has obtained Ex.P14-call data and filed it. Thus, the trial Court on consideration of entire evidence recorded conviction against the accused. Since there is close acquaintance of the deceased with the accused, there is no need of conducting test identification parade. It is a murder for ransom. The offence committed by the accused is a grave and serious in nature.
27. PW.1, father of the deceased, lodged Ex.P1 - complaint on 27.02.2012 at 2.00 P.M. with police Gadwal Town stating that his son left the house on 26.02.2012 at about 5.30 P.M. informing that he is going to movie. He did not return. They have made enquiries with his son's friends, college etc. Basing on the said complaint, the police have registered a case in Crime No.26 of 2012 under the head 'man missing'.
i) The Investigating Officer in the said crime had filed Ex.P13 alteration memo dated 01.03.2012 stating that on 01.03.2012 PW.1 13 KL,J & PSS,J Crl.A. No.224 of 2014 came to the Police Station and stated that on 27.02.2012 and 28.02.2012 when he (PW.1) made phone calls to his son's cell phone, an unknown person attended the said call, informed PW.1 that he kidnapped his son, demanded cash of Rs.25.00 lakhs and warned that he would kill his son if he reports to police or any others. The unknown person further informed PW.1 that he has thrown the pant (MO.1) of his son in the compound of his house. He noticed the said pant of his son in the compound of his house. He observed the conversation voice of the said person that he is well known earlier. He further stated that PW.1 came to know that an unknown person was burnt in grave yard in the outskirts of Nadi Agraharam Village. He along with his elder son (PW.2) went to the place, observed the half burnt dead body, identified the long nails of right leg, right feet as that of his missing son and there was no apparel below waist and there was citizen wrist watch at left hand with burnt watch belt and half burnt red colour waist thread. He further stated that the said unknown person kidnapped his son, snatched away gold chain with locket having I.B. letters weighing half tula, killed his son and burnt with petrol. Basing on the said statement, the Investigating Officer altered 14 KL,J & PSS,J Crl.A. No.224 of 2014 the section of law to 302, 201, 364A and 379 IPC from 'man missing' and filed alteration memo Ex.P13 dated 01.03.2012.
ii) PW.1 did not enclose photograph of his son along with Ex.P1 complaint. In Ex.P1, PW.1 except stating that his son is 5'.5", white complexion and lean and that he wore blue Pant and black T- shirt, did not enclose photograph of his son. He has not mentioned the mobile number of his son. However, the Investigating Officer failed to contact the deceased, the son of PW.1 through mobile phone. The Investigating Officer was silent on the said aspect.
iii) However, according to PW.1, on the night of 27.02.2012 he received a telephone call to his cell phone i.e., 9441166942 from unknown person who informed him that he kidnapped the son of PW.1, demanded an amount of Rs.25.00 lakhs for release of his son.
28. PW.2, elder son of PW.1, deposed that on 27.02.2012 night his father received a telephone call, the person, who telephoned his father, informed that he kidnapped the deceased, demanded an amount of Rs.25.00 lakhs for release of the deceased. His father switched on speaker of cell phone and he heard the voice of the person who telephoned to his father. The said voice of the person is familiar to them.
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29. PW.3, brother of PW.1 also deposed on the same lines. But, PW.1 did not depose that he has switched on the speaker of the said cell phone so that PWs.2 and 3 also heard the voice of the unknown person.
Thus, there is serious contradiction with regard to the said aspect in the depositions of PWs.1, 2 and 3.
30. PW.1 deposed that his mobile number is 9441166942. He received a call to the said cell phone on 27.02.2012, but the Investigating Officer failed to collect call data of PW.1 in respect of the said cell phone No.9441166942. Ex.P14 is the call details list of mobile Nos.8500495932 and 7382148613 belonging to the deceased and PW.1 used by the deceased. The said fact was also admitted by PW.13 - Investigating Officer. In fact, there is no mention about Ex.P14 in the charge sheet. It is also relevant to note that the Investigating Officer failed to file a certificate under Section - 65B of the Indian Evidence Act, 1872, along with Ex.P14 details of call-data. Ex.P14 - call data was marked during further chief-examination of PW.13. The said call data belongs to the cell phone No.8500495932 belonging to the deceased.
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i) However, during cross-examination, PW.13 categorically admitted that he did not collect the address particulars of the persons from whom the deceased received SMSs through the said phone numbers. SIM No.9059789087 seized from the accused is not in his name, it was stolen SIM and he was operating the same through his phone. He did not examine Mahabub as he disowned his ownership over the said number. He did not record the statement of Moosa whose phone was allegedly stolen, but he was examined by the Sub- Inspector of Police.
ii) PW.13 further admitted that he took up investigation only on 05.03.2012. During investigation, on the basis of cell phone calls, they located the movements of the kidnapper. The accused used the SIM Card No.9059789087 belongs to other and the accused used the said SIM during the course of crime. The accused used the cell phone of the deceased and demanded amount from PW.1. He has not filed call data into the Court. Cell phone number of PW.1 is not mentioned in the charge sheet. Thus, the prosecution utterly failed to prove the call made by the accused to PW.1 and demand of ransom of Rs.25.00 lakhs. Therefore, the prosecution failed to prove motive. 17
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31. As discussed above, there is no direct evidence in the present case. The entire case rests on circumstantial evidence. Therefore, motive plays a crucial role. The prosecution has to prove the motive beyond reasonable doubt. In the present case, the prosecution utterly failed to prove the motive.
32. Section - 364A of IPC deals with kidnapping for ransom, and the same is extracted as under:
"364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
a) To prove the said offence, prosecution has to prove the following three (03) ingredients:
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(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction;
(ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;
(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom.
b) The Hon'ble Supreme Court in Shaik Ahmed v. State of Telangana1 held that the aforesaid ingredients are essential to prove the offence under Section - 364A of IPC. The Apex Court further held that after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section - 364A of IPC cannot be sustained.
c) In Rajesh v. The State of Madhya Pradesh 2, a three-judge Bench of the Apex Court examining the facts of the case therein, 1 . 2021 SCC OnLine SC 436 2 . AIR 2023 SC 4759 19 KL,J & PSS,J Crl.A. No.224 of 2014 where conviction was recorded by the trial Court confirmed by the High Court for the offence punishable under Section - 364A of IPC, held that in a case resting on circumstantial evidence, the prosecution must establish a chain of unbroken events. The higher principle of 'proof beyond reasonable doubt' and more so, in a case built on circumstantial evidence, would have to prevail and be given priority.
It was further held that there were cavernous gaps in the evidence that the prosecution would offer as unbroken chain unerringly pointing out to the appellants' guilt. Discrepancies galore in the prosecution's case tear as under the fabric of its purported version as to how events unfolded.
d) As discussed above, in the present case, the prosecution utterly failed to prove the aforesaid three (03) ingredients.
e) According to the prosecution, there was close acquaintance of the accused with the deceased family. Therefore, there is no need of conducting test identification parade, but whereas, the prosecution failed to prove the said aspect by producing cogent evidence. PWs.2 and 3 except stating voice of the person from whom they received a 20 KL,J & PSS,J Crl.A. No.224 of 2014 call is a familiar voice did not depose that they have close acquaintance with the accused.
33. PW.5 deposed that PW.1, father of the deceased, is having cloth shop. In that connection, he knows PW.1, the deceased and the accused. However, during cross-examination, he categorically admitted that the accused is not a prominent person in Gadwal. The accused never stitched his clothes. He is only a normal tailor. He does not know the house of PW.1 and the name of his villager who was working in the cloth shop of PW.1. He had not visited the cloth shop of PW.1. He has no close acquaintance with the deceased. On that day, he has not spoken to the deceased and accused.
i) Thus, the prosecution failed to prove that the accused is having close acquaintance with the deceased family by producing cogent evidence. Therefore, the contention of the prosecution that due to close acquaintance of the deceased with the accused, there is no need of conducting test identification parade cannot be accepted.
34. With regard to other contention of the prosecution that the accused disappeared immediately after the incident, prosecution has examined PW.6. PW.6 deposed that he and LW.9 were trained in 21 KL,J & PSS,J Crl.A. No.224 of 2014 tailoring work in the shop of the accused at Gadwal. On 27.02.2012 onwards, the accused closed his shop and was not coming to his tailoring shop. However, during cross-examination, he has admitted that from the past six months i.e., from February, 2012 onwards, he was taking training in tailoring work in the tailoring shop of the accused. Two persons were working in the tailoring shop of the accused. The accused is a good tailor. The accused used to work from morning to evening in his tailoring shop. The accused used to give Rs.10/- per day to him. He does not know the rent for the tailoring shop of the accused. He does not know at what time the shop was closed, but he used to leave the shop by 6.00 P.M. He does not know the total days for February, 2012. He does not know whether the police apprehended the accused on 01.03.2012.
35. According to the prosecution, PW.7 is the neighbour of the accused. He deposed that the house of the accused situated by the side of his house. The accused is a tailor. About 10 months ago, the accused locked his house and he did not come to the house.
i) However, during cross-examination, he has admitted that grandmother of the accused used to reside by the side of the house of 22 KL,J & PSS,J Crl.A. No.224 of 2014 the accused. The Investigating Officer did not record the statement of the grandmother of the accused. He has further admitted that the accused is having wife and three children and he used to go to hotel in the morning and used to come to the house in the evening. The accused used to go to his tailoring shop in the morning and used to come to his house in the evening. He has not filed any document to show that the accused is his neighbour. He has not seen the accused on 01.03.2012. He does not know whether the police apprehended the accused on 01.03.2012.
ii) Thus, the prosecution failed to prove that the accused disappeared immediately after the incident by producing cogent evidence.
36. According to PWs.1 and 2, on 27.02.2012 night, PW.1 received a telephone call from unknown person, who informed him that the pant of the deceased (MO.1) was placed in the compound of the house of PW.1. PW.1 did not state as to on which date and at what time he has found MO.1 - pant in the compound of the house. However, in Ex.P13 - alteration memo, dated 01.03.2012, it is mentioned that PW.1 received phone call on 27.02.2012 and 28.02.2012 and informed PW.1 that MO.1 pant was thrown in the 23 KL,J & PSS,J Crl.A. No.224 of 2014 compound of his house. He noticed the pant of his son in the compound of his house. Even in Ex.P13 also, there is no mention as to on what date and at what time, PW.1 found MO.1 pant.
i) In Ex.P13 - alteration memo, there is mention about PW.1 receiving phone on 27.02.2012 and 28.02.2012, whereas, PWs.1, 2 and 3 deposed that PW.1 has received phone call in the night of 27.02.2012. However, PW.1 deposed that he did not inform about receipt of telephone call immediately to the police due to fear. Therefore, there are serious contradictions with regard to the receipt of phone call by PW.1 on 27.02.2012 and 28.02.2012. As stated above, the Investigating Officer failed to collect call data with regard to the mobile number of PW.1 i.e., 9441166942. The said aspects were admitted by PW.13 - Investigating Officer during cross-examination. Therefore, recovery of MO.1 is also doubtful.
37. As discussed above, prosecution utterly failed to prove the demand of ransom and the aforesaid three (03) ingredients to prove the offence punishable under Section - 364A of IPC beyond reasonable doubt by adducing evidence.
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38. The deceased was an Engineering Student. According to PW.1, he left the house on 26.02.2012 at 5.30 P.M. to watch a movie. In Ex.P7 - confession statement, it is mentioned that on 26.02.2012 at about 8.00 P.M. at Andhra Bank ATM Centre, Gadwal, the accused found that the deceased alone was proceeding through Rajiv Marg on walk towards his house. Having found the deceased alone, the accused requested him to accompany him to Kothapally village to bring onions and accordingly picked him up on his motorcycle and proceeded through Rajiv Marg, Court, Ambedkar Statute, Housing Board Colony and reached Nadi Agraharam road and thereafter reached the road abutting PJP Canal and finally reached Kothapally Lift Irrigation Pump House (hereinafter referred to as main scene of offence). Then the accused took the cell phone of the deceased, switched it off. He informed the deceased that he has kidnapped him and he wants Rs.1.00 lakh.
39. However, there is no evidence as to whether PWs.1, 2 and 3 and the Investigating Officer tried to call the deceased with his mobile phone. According to PW.1, the father of the deceased, his son was possessing double SIM cell phone. Even then, no effort was made by PWs.1 to 3 and the Investigating Officer to call the deceased 25 KL,J & PSS,J Crl.A. No.224 of 2014 over his mobile phone. When the mobile phone of the deceased was switched of as per Ex.P7 - confession statement, there is no evidence as to when and what time the said mobile phone of the deceased was switched on. Thus, the prosecution failed to prove the demand of ransom.
i) As per Ex.P7- confession statement, the accused stated that he informed the deceased that he has kidnapped him and he needs an amount of Rs.1.00 lakh. Whereas, PWs.1 to 3 and the Investigating Officer deposed that the accused demanded an amount of Rs.25.00 lakhs. Thus, the prosecution failed to prove the said demand of ransom of Rs.25.00 lakhs.
40. With regard to the last seen theory, the prosecution has examined PW.5, who deposed that about ten (10) months ago at about 8.00 P.M., he and LW.7 were near Andhra Bank ATM situated near Municipal Office, Gadwal. They have noticed the deceased in the company of the accused and both were proceeding on motorcycle towards Cinema Talkies Road. The accused was driving the motorcycle while the deceased was sitting on the motorcycle. However, during cross-examination, he has admitted that on that day, they were at Andhra Bank ATM from 7.30 P.M. to 8.30 P.M. In 26 KL,J & PSS,J Crl.A. No.224 of 2014 general, first show cinema will be completed by 9.00 P.M. He is not having any ATM Card. He does not remember the colour of clothes of the deceased and the accused on that day. He cannot say the company of the motorcycle (MO.6) of the accused on which they went together on that day.
i) The statement of PW.5 was recorded after eight (08) days of the incident. However, prosecution failed to examine LW.7 - Urukundu. The police also failed to record the statement of the Security Guard at ATM Centre. The said fact was also admitted by PW.13 during cross-examination. Therefore, the prosecution failed to prove the last seen theory by adducing cogent evidence. The evidence of PW.5 is improbable and it is not inspiring confidence to connect the accused with the crime.
ii) PW.12 also categorically admitted that he has not examined the neighbours of the accused. He has also not examined the staff of Engineering College and the students of Engineering College in which the deceased was studying. According to him, the dead body was burnt with petrol. Approximately, about 2 to 4 liters of petrol is sufficient to burn the dead body. DNA test was not conducted. He has not sent the bones of the deceased to FSL.
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iii) It is settled law that in criminal jurisprudence, prosecution has to prove the guilt of the accused beyond reasonable doubt by adducing cogent evidence. However, grave the offence may be, accused cannot be convicted on suspicion. In the present case, to prove the last seen theory, prosecution utterly failed to prove the same by adducing cogent evidence.
iv) It is relevant to note that the last seen theory is a weak piece of evidence. Therefore, the prosecution has to prove the same beyond reasonable doubt and we have to consider all the circumstances and evidence. In the present case, prosecution failed to prove the last seen theory which is a weak piece of evidence.
41. With regard to recovery, PW.8 - panch witness for scene of offence, inquest and recovery of MO.1 pant. According to him, on 01.03.2012, he and LW.13 went to the house of PW.1 and in their presence, PW.1 informed that the kidnapper placed the pant of the deceased in the compound of the house of PW.1 to believe them that the kidnapper kidnapped the deceased. PW.1 shown the pant of the deceased placed in the compound of his house and the police seized the jean pant in their presence under cover of seizure panchanama. 28
KL,J & PSS,J Crl.A. No.224 of 2014 MO.1 is pant, MO.2 is burnt wrist watch and Ex.P4 - panchanama. However, police have not examined LW.13.
i) During cross-examination, PW.8 admitted that he went to the house of PW.1 at about 1.30 P.M. The police has seized MO.1 pant in their presence. At about 2.00 P.M., police conducted inquest over the dead body of the deceased. The shirt of the deceased was completely burnt. They have noticed burnt wrist watch by the side of right hand of the dead body. They noticed MO.1 pant in the compound wall of the house of PW.1.
ii) As discussed above, PW.1 in his deposition categorically stated that he received phone call from unknown person on 27.02.2012 night. According to him, unknown person informed him about placing the pant of the deceased (MO.1) in the compound of his house. He has not informed the said fact to the police immediately though he has lodged the complaint - Ex.P1 on 27.02.2012 at 2.00 P.M. He has not stated about date and time on which he found MO.1. But, according to PW.8, MO.8 - pant was seized on 01.03.2012 at 1.30 P.M. 29 KL,J & PSS,J Crl.A. No.224 of 2014
iii) PW.9 is the witness for confession, recovery and scene of offence. According to him, the police have recovered two (02) cell phones, gold chain and motorcycle from the accused in their presence. MO.3 is the gold chain with locket, MO.4 is the LAVA cell phone and MO.5 is the Vodafone Company cell phone and MO.6 is the motorcycle. At the instance of the accused, the Inspector of Police recovered MO.7 - rope under cover of panchanama (Ex.P10) in their presence.
iv) During cross-examination, he has admitted that the police constables and Inspector were present at the office of Inspector, Gadwal. At about 8.00 A.M., he and LW.14 went to the office of the Inspector on that day. The accused informed them that he killed the deceased on the same day of kidnap of the deceased. The accused further informed them that phone call came to the phone of the deceased on that day night at about 1.30 A.M. and the accused informed that he kidnapped the deceased. The accused further informed that on 27.02.2012 a phone call came to the cell phone of the deceased. The accused informed them that on 27.02.2012 at about 3.00 P.M., he telephoned to the cell phone number found on the board of the shop of the deceased and informed that he kidnapped the 30 KL,J & PSS,J Crl.A. No.224 of 2014 deceased. On 29.02.2012 afternoon, the elder brother of the deceased (PW.2) telephoned and said that he wants to talk with the deceased and PW.2 also informed that they would give money. The accused received the said telephone call while the accused was at Ieeja. He further admitted that he cannot say how many times the accused received phone calls during that period. He cannot say how many times the accused telephoned to PW.1. He and LW.14 have not enquired the accused from which phone number the accused received telephone calls. He is not the scribe of Ex.P7 - panchanama. He does not know the name of the person who drafted Ex.P7. He and LW.14 know prior to Ex.P7 that the dead body of the deceased was found burnt at burial ground.
v) Thus, there are serious discrepancies with regard to the receipt of phone call by PW.1 and accused making phone call to PW.1. There are also serious discrepancies with regard to PW.2, elder brother of the deceased, calling to the deceased mobile number on 27.02.2012. Pw.2 never deposed that he made a call to the mobile phone of the deceased. Thus, the prosecution failed to prove the demand of ransom and also failed to produce cogent evidence to connect the accused to the present crime.
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vi) As discussed above, the Investigating Officer (PW.13) failed to conduct investigation with regard to the ownership particulars of MO.6 - motorcycle. The said fact was also admitted by him during cross-examination. It is the case of prosecution that they have recovered MO.3 - gold chain with locket from the possession of the accused, that too after thirteen (13) days from the date of incident. The accused was arrested on 14.03.2012. During cross-examination, PW.13 - Investigating Officer has admitted that he has not enquired as to on whose name registration certificate of motorcycle stands. Thus, the version of prosecution is highly doubtful.
42. With regard to the dead body, according to PW.1, he was informed that one burnt dead body was found at burial ground situated at the outskirts of Nadi Agraharam Village. Then they went there and found half-burnt dead body of his son by identifying hands, legs and nails to the fingers of the dead body. They identified that the dead body belongs to his son. They noticed red waist thread piece and burnt watch. The strap of the watch was burnt. He identified that the watch belongs to his son. MO.2 is the burnt wrist watch (strap of the wrist watch burnt). MO.3 is the gold chain and the same belongs to his son. PWs.2 and 3 also spoken on the same lines. 32
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i) As discussed above, according to PW.13 - Investigating Officer, he has apprehended the accused on 14.03.2012 and recovery of MO.3 - gold chain with locket was only on 14.03.2012, but he has not informed the source of the said information. There is no mention about the details of the person, who informed PWs.1 to 3 about the burnt dead body which was found at burial ground situated at outskirts of Nadi Agraharam. No investigation was done on the said aspect. PW.13 admitted the said fact during cross-examination.
ii) PW.13 also admitted that he took up investigation only on 05.03.2012. Identification in respect of MO.3 was not conducted. Ex.P7 - confession statement was not recorded when the accused was in the custody. There was no custodial interrogation. Therefore, prosecution failed to prove the confession followed by recovery.
iii) The scene of offence is 10 kilometers away from the Brahmin Community burial ground. Perusal of the scene of offence would reveal that Vysya Community burial ground is also abutting to the burial ground of Brahmin Community. According to the prosecution, the accused killed the deceased on the night of the alleged kidnap i.e., 26.02.2012 by way of strangulation with MO.7 - 33
KL,J & PSS,J Crl.A. No.224 of 2014 rope at the main scene of offence. There is no dispute that main scene of offence is 10 kilometers away from the Brahmin Community burial ground. There is Krishna River bank abutting to the main scene of offence. There is no explanation from the prosecution as to why the accused brought the dead body of the deceased in gunny bag all the way from main scene of offence to the Brahmin Community burial ground which is 10 kilometers away, instead of throwing the dead body in the said Krishna River or cremating the body there itself. There is no explanation from the prosecution as to why MO.7 - rope was found at Brahmin Community burial ground when the accused committed murder of the deceased on 26.02.2012 itself by strangulating him with MO.7 - rope. There is no investigation on the said aspects.
iv) It is also relevant to note that the deceased is an Engineering Student. The version of the prosecution that the accused picked up the deceased at Andhra Bank ATM Centre when he was proceeding to his house alone, informed him that they will go to Kothapally to bring onions. The time was 8.00 P.M. Even according to the prosecution, the accused took the deceased to the main scene of offence from Rajiv Marg, Court, Ambedkar Statue, Housing Board 34 KL,J & PSS,J Crl.A. No.224 of 2014 Colony and reached Nadi Agraharam road and thereafter reached the road abutting PJP Canal and finally reached the main scene of offence. The height of the deceased is 5'.5". There was no resistance from the deceased. Therefore, the version of the prosecution is improbable.
v) As discussed above, during cross-examination, PW.13 - Investigating Officer categorically admitted that PW.1, father of the deceased, identified the dead body of the deceased by identify the nails, watch found by the side of the dead body. The bones of the deceased were not seized. As stated above, PW.12 categorically admitted that DNA test was not conducted and he has not sent the bones of the deceased to FSL. Even according to PWs.1 to 3, they have identified the dead body by identifying the hands, legs and nails to the fingers of the dead body. Even then, DNA test was not conducted. Prosecution has to prove guilt of the accused and connect the accused to the crime beyond reasonable doubt by producing proper evidence. In the present case, prosecution utterly failed to prove the same. Therefore, the version of prosecution is highly improbable. The deposition of PW.5 to the extent of last seen theory is not inspiring confidence. His statement was recorded after eight (08) days of the incident as admitted by PW.13 - Investigating Officer. Though 35 KL,J & PSS,J Crl.A. No.224 of 2014 in Ex.P7 - confession statement, it is stated by the accused that PW.1 has to bring the amount near Pillalamarri, Mahabubnagar. There is no investigation on the said aspect.
vi) In Ex.P7 - confession statement, the accused stated that he has collected the phone number of PW.1 from the name board of PW.1's cloth shop. Even then, there is no investigation on the said aspect. Even in Ex.P7, there is mention about committing theft of cell phone of one Samoosa Iqbal i.e., 9059789087. He has changed SIM Card. There is no investigation on the said aspect. In Ex.P7 - confession statement, it is mentioned that on 26/27.02.2012 at about 1.30 AM, a phone call was received to the phone of the deceased. Then he has informed that he has kidnapped the deceased. Even on the next day also, a call was received to the phone of the deceased and accused informed about kidnapping the deceased and demanded an amount of Rs.25.00 lakhs. On 27.02.2012 at about 11.30 P.M. a phone call was received to the mobile phone of the deceased from PW.2 and the accused informed about the kidnap of the deceased and demanded Rs.25.00 lakhs to release the deceased and the said amount has to be handed over at Pillalamarri, Mahabubnagar. On 27.02.2012 at 3.30 P.M., he went to Rajiv Marg Road, collected the phone 36 KL,J & PSS,J Crl.A. No.224 of 2014 number from the name board of the shop of PW.1 and made a call with the cell phone (committed theft) and informed about the kidnapping of the deceased. On 28.02.2012, he observed about the police conducting house to house check and, therefore, he left Gadwal. On 29.02.2012, PW.2, elder brother of the deceased, made a call to the deceased mobile and requested to talk to the deceased and informed the accused that he would pay the amount demanded by him. The depositions of PWs.1 to 3 are contradictory to the said statement made by the accused in Ex.P7 - confession statement.
vii) It is relevant to note that in Ex.P7 - confession statement, the accused stated that he went to his younger sister Mrs. Parveen's house situated at Thatikunta village of Maldakal Mandal and stayed there. On 14.03.2012, Gadwal Police apprehended him. Even then, they have not recorded the statement of his younger sister, not examined her during trial and no investigation was conducted on the said aspects. Thus, the prosecution failed to connect the accused with the subject crime.
43. Prosecution also failed to prove as to whether the accused burnt the body of the deceased by carrying petrol on his motorcycle or removing the petrol from his motorcycle. PW.11 on receipt of 37 KL,J & PSS,J Crl.A. No.224 of 2014 complaint from PW.1 failed to make any call to the mobile phone of the deceased.
i) It is relevant to note that according to PW.13, PW.11 apprehended the accused and produced before him on 14.03.2012. But, PW.11 in his evidence did not state the said fact. PW.13 during cross-examination categorically admitted that he has not mentioned cell phone number of PW.1 in the charge sheet. They have not obtained chance prints. In Ex.P1, there is no mention about the deceased wearing black jeans. In Ex.P7 - confession statement, the accused stated that he has collected MO.3 gold chain with locket after committing murder of the deceased, and if the body is at the main scene of offence, the fishermen may identify them and police may come along with sniffer dog. Therefore, his acquaintance with the family of the deceased, he took the body of the deceased to the burial ground of Vyshya Community near Agraharam village. There is no investigation on the said aspect.
ii) Though in Ex.P7, there is mention about committing of theft of cell phone of Samosa Iqbal, there was no investigation and prosecution failed to produce any evidence on the said aspect. In 38 KL,J & PSS,J Crl.A. No.224 of 2014 Ex.P7, it is mentioned that the accused is having good relation and acquaintance with the deceased family and the deceased, no investigation was conducted on the said aspect.
iii) As discussed above, the Investigating Officer failed to conduct any investigation with regard to the date and time on which the mobile of the deceased was switched on as it was switched off as per Ex.P7 - confession statement. But, according to Ex.P7, the depositions of PW.1 to 3, phone calls were received to the mobile of the deceased on 26/27.02.2012, 27.02.2012, 28.02.2012 and 29.02.2012. There was no investigation on the said aspects. Thus, there are serious contradictions in the depositions of prosecution witnesses. Apprehension of the accused was also not proved.
44. As discussed above, there is no direct evidence in the present case. The entire case rests on the circumstantial evidence. Prosecution has to prove guilt of the accused beyond reasonable doubt and the circumstances relied upon by the prosecution has to form a complete chain.
45. The prosecution has to prove the following five (05) ingredients to prove an offence under Section - 364A of IPC: 39
KL,J & PSS,J Crl.A. No.224 of 2014 i. that the accused kidnapped or abducted any person; ii. he kept a person in detention after such kidnapping or abduction;
iii. that the accused threatened to cause death or hurt to such person;
iv. threatened to cause hurt or death to such person in order to compel the Government or any foreign State or international Inter-Governmental Organizations or any other person to do or abstained from doing any act; and v. such kidnapping or abduction was for ransom. According to the prosecution, the accused killed the deceased on the date of kidnap i.e., 26.02.2012. Thus, the prosecution utterly failed to prove the aforesaid ingredients.
46. Section - 201 of IPC deals with causing disappearance of evidence, or giving false information to screen offender. The prosecution has to prove the following ingredients:
i. That an offence has been committed;
ii. that the accused knew, or had reason to believe that such offence had been committed;40
KL,J & PSS,J Crl.A. No.224 of 2014 iii. that the accused caused evidence thereon to disappear or gave false information respecting such offences, knowing or having reason to believe the same to be false;
iv. that the accused did so with intent to screen the offender from legal punishment and the following must be proved as an aggravating circumstance;
v. that the offence in question was punishable with death or imprisonment for life or with imprisonment exceeding 10 years. As discussed above, the prosecution failed to prove the aforesaid ingredients beyond reasonable doubt by adducing cogent evidence.
47. Even to prove Section - 379 IPC, the prosecution has to prove the following ingredients:
i. that the property in question is movable property; ii. that such property was in the possession of a person; iii. that the accused moved such property whilst in the possession of that person;
iv. that he did so without the consent of that person; v. that he did so in order to take the same out of the possession of that person;41
KL,J & PSS,J Crl.A. No.224 of 2014 vi. that he did so with intent to cause wrongful loss to that person or wrongful gain to himself.
As discussed above, the prosecution failed to prove the aforesaid ingredients to attract the offence punishable under Section - 379 IPC by adducing cogent evidence beyond reasonable doubt.
48. The trial Court framed the following three (03) points for consideration:
i. Whether death of deceased is homicidal? ii. Whether deceased was kidnapped for ransom and killed by accused committing theft of valuables from deceased and set fire to dead body to destroy evidence?
iii. Whether prosecution has made out the cases against accused for the offences under sections 364-A, 302, 201 and 379 IPC beyond reasonable doubt?
49. The trial Court referred the following circumstances relied upon by the prosecution:
i. close acquaintance of accused with the family of the deceased; ii. last seen alive theory;42
KL,J & PSS,J Crl.A. No.224 of 2014 iii. disappearance of accused from his ordinary place of residence;
and iv. recoveries made on apprehension of accused from his possession and at his instance in pursuance of the confessions made admitting his guilt.
50. As discussed above, the prosecution utterly failed to prove the aforesaid four (04) circumstances beyond reasonable doubt by adducing cogent evidence.
51. It is settled law that however grave the offence may be, on suspicion accused cannot be convicted.
52. In paragraph No.43 of the impugned judgment, the trial Court gave a finding that the prosecution proved the offence committed by the accused beyond reasonable doubt. The trial Court observed that it is settled principle that human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail and 'men may lie but circumstances do not'. The trial Court despite observing that certain circumstances could not be proved by the prosecution, there is some scope to believe that the prosecution was not to the expectations, recorded conviction against 43 KL,J & PSS,J Crl.A. No.224 of 2014 the appellant. The finding of the trial Court that there are no material missing links in the prosecution case is contrary to the record and evidence. Further observation of the trial Court that it is well settled that it is not essential that each of the links must appear on the surface of the evidence adduced and some of the links may have to be inferred from the proved facts is also contrary to the evidence. The trial Court despite observing that in drawing these inferences, the Court must have regard to the common course of natural events and to human conduct and their relation to the facts of the particular case, recorded conviction against the accused. Therefore, the finding of the trial Court in the impugned judgment is contrary to the evidence available on record.
53. It is settled law that even basing on the circumstantial evidence, the accused can be convicted as held by the Apex Court in Sharad Birdichand Sarda v. State of Maharashtra 3, the following are the cardinal principles regarding appreciation of circumstantial evidence which are postulated:
i. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
3 . (1984) 4 SCC 116 44 KL,J & PSS,J Crl.A. No.224 of 2014 ii. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
iii. The circumstances should be of a conclusive nature and tendency;
iv. They should exclude every possible hypothesis except the one to be proved; and v. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
54. As discussed above, in the present case, the prosecution utterly failed to prove the aforesaid circumstances and the chain is missed. When the chain is missing and the circumstances are not forming complete chain, the trial Court cannot convict the accused. Benefit of doubt shall always be given to the accused. If two views are possible, the view which is beneficial to the accused shall be given.
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55. It is also relevant to note that in Ex.P7 - confession statement, there is reference with regard to registration of crime in Crime No.110 of 2010 by Manopad Police Station for the offences punishable under Sections - 302 and 201 of IPC on the allegation of kidnapping one Manohar Shetty by the accused for ransom. The Investigating Officer on completion of investigation laid the charge sheet against the appellant herein. The same was taken on file vide S.C. No.208 of 2013. No investigation was conducted on the said aspects. However, after full-fledged trial, learned III Additional District and Sessions Judge acquitted the accused - appellant herein. Therefore, the same has no relevancy in deciding the present appeal.
56. Thus, viewed from any angle, the impugned judgment is not based on facts and law and it is liable to be set aside.
57. The present Criminal Appeal is accordingly allowed and the conviction and sentence of imprisonment imposed vide impugned judgment dated 12th and 18th November, 2013 in S.C. No.336 of 2012 passed by learned III Additional District and Sessions Judge at Gadwal are set aside. Since the appellant herein - accused is on bail, 46 KL,J & PSS,J Crl.A. No.224 of 2014 the bail bonds stands cancelled. The fine amount, if any, paid is ordered to be returned to the appellant - accused.
As a sequel, miscellaneous applications, if any, pending in the appeal shall stand closed.
__________________ K. LAKSHMAN, J __________________ P. SREE SUDHA, J 11th January, 2024 Mgr