Telangana High Court
Nunavath Mansingh, R.R. Dt. vs State Of Telangana, Rep. By P.P., Hyd on 2 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL No.126 OF 2015
JUDGMENT:
(Per the Hon'ble Sri Justice Sambasivarao Naidu) The sole accused in S.C.No.528 of 2012 on the file of III Additional District and Sessions Judge, Medak is the appellant in the present Criminal Appeal which was filed under Section 374 (2) Cr.P.C. The appellant seeks to assail the Judgment, dated 27.11.2014 in the above referred sessions case whereunder, the trial Court found him guilty for the offences under Section 302 and 379 Indian Penal Code (for short 'IPC') and convicted him under Section 235 (2) Cr.P.C., by sentencing him to undergo imprisonment for life along with fine of Rs.5,000/- for the offence under Section 302 and also to suffer simple imprisonment for two (2) years for the offence under Section 379 IPC.
2. As could be seen from the allegations made in the charge sheet, the accused has been prosecuted by the police Kulcharam with an allegation that the appellant was an auto driver by profession and one Lambada Jamuna 2 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 (hereinafter be referred as deceased) was the wife of PW1 who was doing vegetable business and all these persons belongs to Chinna Ghanpur Thanda. The appellant said to have developed illicit intimacy with the deceased and continued the same for two years prior to the date of offence. He happen to borrow an amount of Rs.20,000/- from one Gugloth Mali, about one year prior to the date of offence and as he was unable to repay the loan amount, and there was pressure from the said Mali for repayment of the amount. It is also alleged by the prosecution that the appellant developed some ill health and when contacted, the appellant was told by the Medical Officer that he received venereal decease (STD) and was advised not to participate intercourse with the deceased. Though the appellant stopped meeting the deceased, she used to pressurize him. As such, the appellant wanted to get rid of her, hatched a plan to commit theft of gold and silver ornaments which she used to wear always.
3. The prosecution has further alleged that on 22.04.2012 in the afternoon the deceased left the house by informing her husband that she was proceeding to Medak to collect the overdue amount from one Gungu Laxmaiah 3 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 and at about 12:20 in the noon she made a call to the appellant herein to his mobile bearing No.9603067606 from her mobile bearing No.9640818847 and asked him to come to cross roads at Pothamsetpally, where she will be waiting for him. The appellant having received the said call, decided to kill her so that he can permanently get rid of her pressure and he can commit theft of gold and silver ornaments.
4. It was also alleged in the charge sheet that in pursuance of his plan, the appellant reached Pothamsetpally in his auto and after the deceased boarded his auto, he has allowed some more passengers to sit in his auto and proceeded towards Narsapur and after the other passengers got down the auto, appellant and deceased proceeded towards the forest at the outskirts of Nathnaipally and reached the place known as Nallagutta where they used to participate in sexual intercourse frequently. The appellant killed the deceased by using a plastic rope by way of strangulating her and on confirmation of death, removed her gold and silver ornaments and escaped from the scene of offence. 4
PSK,J & SSRN, J Crl.A.No. 126 OF 2015
5. PW1 visited the police station and lodged a complaint about the missing of his wife. After registering the same as a case in crime No.25 of 2011 as woman missing case, police, Kulcharam took up the investigation and they have examined the material witnesses including the brother of PW1 who is examined as PW2 before the trial Court.
6. As could be seen from the further allegations in the charge sheet, the prosecution has claimed that based on the statements said to have made by PW2 and LW3- Chadiram-younger brother of the deceased who have informed the police that appellant was maintaining illicit relation with the deceased. PW11 who took up the investigation from PW7 pressed the services of ID Party to obtain any clues about the missing lady. It is alleged that the appellant herein was apprehended by the ID party personnel on 13.05.2012 and they produced the appellant before PW11 and on interrogation, the appellant said to have made the confession before PWs 9 and 10 and said to have produced the stolen property removed from the deceased before the Investigating Officer. The appellant said to have lead the police to the place where he said to 5 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 have killed the deceased and showed the dead body. Therefore, the Investigating Officer filed a requisition before the concerned officials, could complete inquest as well as post mortem examination at the spot and after completing the investigation he has laid charge sheet against the appellant.
7. The record further reveals that soon after receiving the case records from the District Court, the learned trial Judge examined the appellant herein and framed charges under Section 302 and 379 IPC and as the appellant denied the accusation, the matter was posted for trial, during which the prosecution has examined PWs 1 to 11, marked Exs.P1 to P9 and MOs 1 to 6. After the conclusion of trial, the entire incriminating material evidence has been put to the appellant, he denied the same. No witness was examined on his behalf.
8. The trial Court having appreciated the oral evidence and other material documents came to the conclusion that the prosecution was able to prove the guilt of the appellant for the offences under Section 302 and 379 IPC and accordingly, convicted him under Section 235 (2) Cr.P.C.
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9. Learned counsel for the appellant vehemently argued that though the prosecution wanted to prove the guilt of the appellant for the alleged offence on the basis of circumstantial evidence, there is no link between the evidence of material witnesses. The prosecution was not able to explain as to why the important evidence i.e., call data records is not placed before the Court. The independent mediators PWs 9 and 10 before whom the appellant said to have made confession did not support the prosecution. There was no identification parade conducted for the identification of the alleged stolen property by PW1. Except the evidence of PW11-Investigating Officer, there is no other incriminating evidence. Thereby, the trial Court came to an incorrect conclusion and convicted the appellant for the offences under Section 302 and 379 IPC, sentencing him to undergo imprisonment for life. Thereby, sought for setting aside the impugned judgment and prayed for acquittal of the appellant.
10. On the other hand, the learned Assistant Public Prosecutor has submitted that the dead body of the deceased was recovered from a big forest at the instance of the appellant herein. The report presented by PW1 itself 7 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 contains the details of property which was on the body of the deceased when she left the house and the same property was recovered from the appellant herein. Even though the mediators before whom appellant made confession, did not support the prosecution. In the light of evidence of PW11 coupled with the recovery of the stolen property and the other evidence produced before the Court proved the guilt of appellant for the offences under Section 302 and 379 IPC beyond all reasonable doubt. Thereby, prayed for dismissal of the appeal.
11. The appellant herein was found guilty for the offences under Section 302 and 379 IPC by the trial Court. The basis for such conviction is the alleged recovery of stolen property and recovery of the dead body at the instance of the appellant herein. It is true since the entire case is resting on the circumstantial evidence, it is for the prosecution to prove that the appellant herein took the deceased from a particular place to the forest where the dead body was recovered and said to have killed her for gain and that the property that was on her person was recovered from the appellant herein. There was no independent witness examined by the prosecution to say 8 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 that the deceased was last seen with the appellant herein. Even though the Investigating Officer who filed charge sheet specifically mentioned the two mobile numbers with an allegation that before she met the appellant herein the deceased made a call, inviting him to a particular place and informed him that she will be waiting for his arrival and inspite of clear information that the deceased have used a particular SIM and she made a call to a particular mobile number, the Investigating Officer did not produce the call data records, thereby it shall be presumed that the said call data record if produced, it will be against the case of prosecution. It is true the report presented by PW1 contains details of gold and silver ornaments said to have been on the person of the deceased when she left the house.
12. PW1 is a vegetable vendor and he lodged a report with the police on 24.04.2012 with a specific allegation that his wife-deceased herein left the house on 22.04.2012 and when he made a call to the mobile number of the deceased, he found the phone in switched off mode. Therefore, he made calls to his relatives and enquired about his wife. But, he did not choose to present any report 9 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 for more than 48 hours. But, strangely he has mentioned the details of gold and silver ornaments including the weights of the respective ornaments. It is true the Investigating Officer has claimed that those gold and silver ornaments were recovered from the possession of the appellant herein, but admittedly no test identification parade for the identification of these items by PW1 was conducted. The two independent mediators before whom appellant said to have made a confession and produced the ornaments, did not support the prosecution.
13. In view of these circumstances, it may not be difficult for the Investigating Officer to secure the ornaments from PW1 to connect the accused by simply preparing a panchanama as if there was a confession by the appellant. If really, the deceased made a call to the appellant and asked him to meet her at a particular place, it could not have been a difficult task for the Investigating Officer to collect those details including the tower location which can easily connect the appellant to the case. Therefore, suppression of such material evidence, leads to a presumption that if such call data records are produced, it will disprove the case of prosecution. Even though the 10 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 Medical Officer who conducted post mortem at the place where the dead body was recovered, categorically mentioned that the dead body was petrified, still claimed that he noticed fracture of hyoid bone, which appears to a difficult when a dead body which was subjected to heat and rain in a deep forest for more than two weeks, still shows fracture of a bone by use of a plastic rope etc. It seems the post mortem report vide Ex.P6 has been prepared to suit the case of prosecution, otherwise, it would be very difficult for the Medical Officer to find all these features on the dead body of the deceased which was lying in the deep forest right from 22.4.2012 to 13.05.2012.
14. Therefore, all these circumstances creates any amount of doubt whether really the appellant was apprehended as deposed by PW11 and whether he really lead the police to the place where a dead body was recovered.
15. In addition to this the Investigating Officer did not try to establish the identity of the dead body in spite of the fact that the same was supposed to have been recovered more than three weeks after the missing of a lady. Neither any test for DNA was conducted, nor there 11 PSK,J & SSRN, J Crl.A.No. 126 OF 2015 does any identification mark on the dead body. PW1, who happened to be husband of the deceased, has stated before the Court that he could recognize the dead body with the help of clothes and chappals. PW2 who is the brother-in- law of the deceased also stated before the Court that he has identified the dead body with the help of petty coat on the person of the dead body. Therefore, the main intergradient to prove the murder of the deceased i.e., identity of the deceased is missing in this case. The alleged recovery of gold and silver ornaments is highly suspicious. The important evidence viz., call data record is suppressed by the prosecution. Therefore, the appellant is entitled to benefit of doubt. But, the trial Court simply by believing the evidence of PW12, recorded conviction against the appellant under Section 302 and 379 IPC by sentencing him to suffer life imprisonment and imprisonment for two years. Therefore, the sentence is liable to be set aside.
16. In the result, the appeal is allowed. The conviction and sentence ordered by the trial Court is set aside. The appellant shall be set at liberty if, he is not required in any other cases. The fine amount if, any, paid shall be returned to the appellant after appeal time is over. 12
PSK,J & SSRN, J Crl.A.No. 126 OF 2015 As could be seen from the record, the ornaments marked as MOs 1 to 4 were already returned to PW1, that order holds good.
Pending miscellaneous applications, if any, shall stand closed.
_________________________ JUSTICE P.SAM KOSHY ___________________________________ JUSTICE SAMBASIVARAO NAIDU Date: 02.07.2024 PSSK