Telangana High Court
Mohd. Muzammil Ahmed , Chowdary, ... vs Spl. P.P., Hyd on 5 June, 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 NOS.843 AND 1155 OF 2014
COMMON JUDGMENT:
(per Hon'ble Sri Justice SAMBASIVARAO NAIDU) The two separate criminal appeals have been filed by the accused in S.C.No.300 of 2009 on the file of the X Additional District Judge, Rangareddy District at L.B.Nagar, challenging the sentence of conviction ordered by the trial Court vide Judgment dated 16.07.2014 by which the trial Court found accused No.2 guilty for the offence under Section 302 of the Indian Penal Code, 1860 (for short, 'IPC') and accused No.2 was sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, he shall suffer simple imprisonment for one month. Further, the trial Court found accused Nos.1 to 4 guilty for the offence under Section 404 of IPC and they were sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.5,000/- each, in default of payment of fine, they shall suffer simple imprisonment for one month each.
2. Accused Nos.1, 3 and 4 have filed Criminal Appeal No.843 of 2014 under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.') whereas accused No.2 filed separate appeal vide 2 Criminal Appeal No.1155 of 2014 under the same provision. Even though two separate appeals have been filed the contentions raised by the accused are almost one and the same and the appeals arise out of the same Judgment, therefore, a common judgment is suffice to dispose of the appeals.
3. Before adverting to the grounds raised by the appellants vide their appeal grounds, it is just and necessary to refer the averments made against the appellants herein in the above referred sessions case and as to how the trial Court dealt with the case and as to how the case ended in conviction.
4. The appellants herein were charge sheeted by PW.9-Inspector of Police, Rajendranagar Police Station, with the allegations that they have committed offences under Sections 302 and 379 of IPC. According to the brief case of the prosecution as per the charge sheet, it is alleged that one Galappa (hereinafter referred to as 'the deceased') and accused No.2 were working as driver and cleaner of tempo bearing No.KA-32- 4082 which belongs to one Md.Farooq Ahmed, who was examined as PW.4 before the trial Court. The prosecution has alleged that accused No.1 also worked as driver in the same tempo for some time till 3 September, 2008 and subsequently, he quit the job. Accused No.1 has got knowledge about PW.4 was giving huge money to the driver of the tempo whenever the vehicle was taken to Hyderabad for the purchase of confectioneries. It is also alleged in the charge sheet that since PW.4 refused to provide job to accused No.1, he developed grudge against PW.4. Accused Nos.1 to 4 are said to be close friends and in view of their knowledge that PW.4 used to get confectioneries from Hyderabad by giving huge money to driver, they hatched a plan to commit theft of money.
5. The prosecution has alleged that on 25.11.2008 accused No.2 herein informed accused No.1 that they were proceeding to Hyderabad on the above referred tempo and PW.4 handed over huge amount to the deceased-driver, therefore, the accused hatched a plan to commit theft of the said amount and in pursuance of their plan, accused Nos.3 and 4 boarded the tempo at the petrol bunk at Gulbarga and accused No.1 boarded the same tempo near a hotel at Hyderabad as passenger proceeding towards Hyderabad and on the way, when the vehicle reached Are Maisamma Temple at Bandlaguda at about 08.00 P.M. accused Nos.1 and 3 requested the deceased, who was driving the vehicle, to stop the same on the ground of answering calls of nature. 4 When the deceased stopped the vehicle by the side of the road near Are Maisamma Temple, accused Nos.1 to 3 have alighted from the vehicle and when the deceased was checking the tyres of the vehicle, they have attacked the deceased.
6. Accused No.2 beat the deceased with a spanner and when the deceased fell down, accused Nos.1 and 3 attacked him with iron rods and accused No.4 attacked him with iron pipe. Due to the said injuries, the deceased died instantaneously. The accused by leaving the dead body of the deceased at the place of offence, moved the vehicle towards Moinabad and stopped the same at an isolated place and have committed theft of Rs.1,10,000/- from the bag which was in the possession of the deceased and shared the amount among them.
7. According to further allegations in the charge sheet the prosecution has claimed that on 26.11.2008, PW.1, who is the resident of Bandlaguda, Rajendranagar, Hyderabad, presented a report to police stating that on the same date, at about 07.00 A.M. when he was proceeding from his house to Himayathnagar, found the dead body of the unknown male person lying under the banyan tree, and he lodged a report before police and requested to take appropriate action. Basing on 5 the said report, PW.9-the then Inspector of Police, registered a case in Crime No.1351 of 2008 under Section 302 of IPC and took up the investigation.
8. The prosecution further alleged that the investigating officer has completed the formalities like preparation of scene of offence panchanama, holding inquest over the dead body of the deceased and referring the dead body of the deceased to postmortem examination. Police tried to trace the identity of the deceased and with the help of tailor's label on the shirt of the deceased, they proceeded to Gulbarga and could identify the wife and other family members of the deceased and also they realized that the deceased was engaged on a tempo by PW.4. The investigating officer had recorded the statements of all the material witnesses. It is also alleged in the charge sheet that during the course of investigation on 08.12.2008 when PW.9 conducted vehicles checking at Are Maisamma Temple, they found tempo bearing No.KA- 32-4082 coming from Moinabad proceeding towards Hyderabad and they noticed all the accused in the said vehicle, thereafter, they were brought to the police station and he said to have interrogated them before two independent mediators, who were examined as PWs.5 and 6 before the trial Court and the accused said to have confessed the 6 commission of offence and in pursuance of their confession, the investigating officer said to have seized different sums of amount from the possession of the accused and therefore, they were produced before the concerned criminal Court for judicial custody and PW.9 having completed investigation, filed charge sheet against the accused.
9. The trial Court after furnishing copies of the charge sheet, examined the accused and framed charges under Sections 302 and 379 of IPC for which the accused having denied the charges and claimed to be tried. During the course of trial, learned trial Court found that basing on the allegations leveled against the accused in the charge sheet, a charge under Section 379 of IPC could not have been framed, a charge under Section 404 of IPC is an appropriate charge, thereby, added the charge under Section 404 of IPC. To prove the allegations, the prosecution had examined PWs.1 to 9 and marked Exs.P.1 to P.19 and M.Os.1 to 9 are marked. Even though the learned Additional Public Prosecutor has submitted that the investigating officer referred the material objects seized from the scene of offence and from the accused to Forensic Science Laboratory, no such material is available before the trial Court and no record has been marked during the trial. The cash 7 said to have been recovered from the accused has been returned to PW.4 for interim custody.
10. Learned trial Court having appreciated the evidence accepted the case of the prosecution to some extent, held that the prosecution was not able to prove the guilt of accused Nos.1, 3 and 4 for the offence under Section 302 of IPC but found accused No.2 guilty for the said charge. Accordingly, convicted accused No.2 for the said charge for life imprisonment. The trial Court having accepted the case of the prosecution, the stolen property from the dead body of the deceased was recovered from all the accused, convicted them under Section 404 of IPC and sentenced them to undergo imprisonment as indicated above.
11. Heard learned counsel for the accused as well as learned Additional Public Prosecutor and perused the record.
12. Learned counsel representing the accused have submitted that there is no eye witness to the alleged offences and the entire case is based on the circumstantial evidence. The trial Court on the premise that accused No.2 was on duty in the above referred tempo at the time of offence as per the evidence of the wife of the deceased, wrongly held accused No.2 is liable for the offence under Section 302 of IPC. The trial 8 Court in spite of the fact that two independent mediators before whom PW.9 supposed to have seized the stolen money turned hostile and did not support the case of the prosecution and in spite of the fact that though the evidence of PW.9 that he was not one among the checking squad who said to have caught hold of the vehicle at Are Maisamma Temple wrongly recorded the conviction under Section 404 of IPC. Thereby, sought for setting aside the impugned Judgment and prayed for acquittal of the accused.
13. The learned Additional Public Prosecutor has argued that the employment of accused No.2 as cleaner on the above vehicle has been proved and as rightly observed by the trial Court accused No.2 could not explain as to what happened on that particular day and the evidence of PW.9 coupled with recovery of the entire stolen amount proved the involvement of all the appellants in the said offence, therefore, sought for dismissal of the appeals.
14. As could be seen from the entire allegations in the charge sheet and evidence of the material witnesses, it is the specific case of the prosecution that PW.4 is the owner of the tempo and he is the resident of Gulbarga, Karnataka. The prosecution has claimed that whenever he 9 sent the driver of the tempo to Hyderabad, he was in the habit of handing over the huge amount to the driver for purchase of confectioneries at Hyderabad. It is also contended that much prior to the alleged offence, accused No.1 worked as driver on the tempo of PW.4. According to further allegations in the charge sheet as well as in the evidence of PWs.2 to 4, the deceased was engaged as driver of the said tempo and on the date of the offence, the deceased was sent to Hyderabad and PW.4 said to have handed over an amount of Rs.1,10,000/- with a direction to the deceased to purchase the confectionaries and accused No.2, was supposed to be cleaner on the tempo. In order to prove all these allegations, the prosecution is relying on the evidence of PWs.1 to 12.
15. Among these witnesses, PW.1, who is the resident of Bandlaguda and who had seen the dead body of the deceased initially near Are Maisamma Temple, and lodged a complaint before the police, therefore, he has no knowledge as to how the offence was committed and the evidence of PW.1 may not helpful to the case of the prosecution to fix the offence against the accused.
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16. PWs.2 and 3 are the wife and son of the deceased. According to their evidence before the trial Court, the deceased was earlier worked in KSRTC and he was removed from service, then, he was working with PW.4. PW.2 categorically deposed before the trial Court that on 25.11.2008 her husband was on duty on the said tempo and he proceeded to Hyderabad for bringing biscuit load and on the 3rd day, police, Rajendranagar Police Station, visited her house and by producing the shirt of her husband asked her to identify the dead body of her husband by producing photograph and she along with her son and her brother have identified the photograph of the deceased and they came to Hyderabad and identified the dead body of the deceased at Mortuary, Osmania Hospital, Hyderabad. They found injuries on the head, stomach and legs of the deceased.
17. It is also the evidence of PW.2 that she had acquaintance with all the accused as they belong to Gulbarga. Accused No.2 was working as cleaner on the tempo being driven by her husband. PW.4 also stated the same version. However, nowhere in their deposition, these two witnesses have stated that they have got knowledge that accused No.2 was also on duty along with the deceased on the above 11 referred date when the deceased proceeding from Gulbarga to Hyderabad for bringing Biscuit load.
18. PW.4, who is the owner of the tempo, deposed before the trial Court that he has engaged the deceased on his vehicle during 2008 and he gave Rs.1,10,000/- to the deceased for biscuit load from Hyderabad and two days thereafter police from Hyderabad visited Gulbarga for getting identification of the deceased. PW.4 also stated before the trial Court that the amount which he has handed over to the deceased was not found in the vehicle. Nowhere in his evidence, it is elicited from PW.4 that accused No.2 was on duty on the said tempo when the deceased was sent to Hyderabad for bringing biscuit load. However, the trial Court while appreciating the evidence of these three witnesses wrongly held as if it was established from the evidence of PWs.2 to 4 that the deceased came to Hyderabad as driver on the above referred tempo and accused No.2 was on duty as a cleaner of the vehicle. Even though PWs.2 and 3 deposed before the trial Court that accused No.2 was working as cleaner it was not elicited from these three material witnesses that accused No.2 was on duty on that particular day. 12
19. The prosecution sought to rely on the alleged confession and recovery to connect the accused with the above referred offence. According to the evidence of PW.9 after registering the case basing on the complaint lodged by PW.1 and after completion of other formalities, they proceeded to Gulbarga and they could get the information about the identity of the deceased from PWs.2, 3 and 4 and they have completed the other formalities.
20. According to the evidence of PW.9 on 08.12.2008 again the accused travelled in the same route along with the stolen cash and also with the iron rods which they said to have used in the commission of offence and said to have been arrested by the vehicle checking squad. PW.9 has claimed that he brought the accused to the police station and said to have interrogated them in the presence of PWs.5 and 6. Even though PW.9 claims that the accused confessed the commission of offence i.e., killing the deceased by using iron rods, spanner and iron pipes etc. and committed theft of cash from the dead body of the deceased, the two independent mediators did not support the case of the prosecution as such they were declared as hostile and were cross- examined by the Additional Public Prosecutor. Therefore, there remains 13 the only uncorroborated evidence of PW.9 to connect the appellants with the case.
21. It is elicited from the evidence of PW.9 that on 08.12.2008 while vehicle checking was conducted by the special squad, they said to have found the accused while they were travelling in the same vehicle which they committed theft along with cash and other material objects. It was elicited from PW.9 that he was not present in the said squad but he found the accused while they were travelling in the same route. The prosecution did not examine any officer from the said squad as witness before the trial Court. Even if the evidence of PW.9 is taken into consideration it is not corroborated with any evidence. The contentions raised by PW.9 that the accused who said to have killed the deceased near Are Maisamma Temple and committed theft of Rs.1,10,000/- and also having removed the vehicle from the place again said to have travelled in the same route along with the stolen property as well as the material objects used in the commission of offence is highly improbable and not acceptable.
22. If the accused really killed the deceased and committed theft of vehicle as well as cash, there was no necessity for them to travel in 14 the same route that too along with the iron rods etc by carrying the cash. Even if this particular evidence of PW.9 is taken into consideration the two independent witnesses did not support the case of the prosecution. Therefore, except the evidence of PW.9, who was not present at the time of alleged vehicle checking, there is no other evidence before the Court to connect the appellants with this case. But the trial Court on the presumption that PWs.2 and 3 have stated about the employment of accused No.2 as cleaner of the vehicle has believed the entire story prepared by PW.9 in the panchanama and accepted the case of the prosecution to some extent by holding accused No.2 alone is guilty for the offence under Section 302 of IPC and also held that the prosecution is able to prove the recovery through PW.9 and found the accused guilty for the offence under Section 404 of IPC.
23. Being investigating officer of the case, it is very convenient to PW.9 to depose before the trial Court as if he arrested the accused and seized the cash. It may be true but for the sake of prosecution to connect the appellants to the crime, he cannot produce such a huge amount. But on the record it shows that the amount returned to PW.4 as there was no other claim by the appellants. The other possibility of involvement of the accused on the ground that they were found with 15 cash though they were not really arrested on that particular day cannot be ruled out.
24. Here is a case where the prosecution sought to rely on the evidence of PW.9 to prove the charges under Sections 302 and 404 of IPC except the evidence of the investigating officer there is no other evidence to believe the said allegations. Therefore, the appellants are definitely entitled to the benefit of doubt and the finding of the trial Court that the employment of accused No.2 on the vehicle on that particular day has been proved by the evidence of PWs.2 and 3 is nothing but wrong. Therefore, the appellants are entitled for acquittal.
25. In view of the findings recorded hereinbefore, both the appeals filed by accused Nos.1 to 4 deserve to be allowed and accordingly, allowed. The sentence of conviction imposed against accused Nos.1 to 4 vide Judgment dated 16.07.2014 passed in S.C.No.300 of 2009 by the trial Court is hereby set aside. As a consequence thereof, accused Nos.1, 3 and 4 are acquitted for the offence under Section 404 of IPC while accused No.2 is acquitted for the offences under Sections 302 and 404 of IPC. The fine amount paid by the accused, if any, shall be refunded to them after expiry of appeal 16 time. The amount said to have been seized from the appellants was already returned to PW.4. Though the alleged recovery is not proved beyond all reasonable doubt, there is no other claim on the said amount, as such the bond executed by PW.4 while receiving the amount shall stands cancelled.
Miscellaneous applications pending in these appeals, if any, shall stand closed.
_________________________ JUSTICE P.SAM KOSHY __________________________________ JUSTICE SAMBASIVARAO NAIDU Dated 04.06.2024 ynk