Telangana High Court
Doolla Mallesh , Kurva Mallesh, ... vs The State Of Telangana, Rep Pp., on 7 June, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.80 OF 2016
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman) Heard Ms. Thanusri, learned counsel representing Mr. T. Pradyumna Kumar Reddy, learned senior counsel appearing for appellant - Accused and learned Additional Public Prosecutor appearing on behalf of the respondent.
2. This appeal is filed challenging the judgment dated 18th & 20th January, 2016 in S.C. No.31 of 2014 passed by learned Special Sessions Judge - cum - VII Additional District and Sessions Judge, Mahabubnagar.
3. Vide the aforesaid judgment, the trial Court convicted the appellant - accused for the offences under Sections - 302 and 201 of IPC and Section - 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') and accordingly sentenced him to undergo life imprisonment and to pay fine of Rs.10,000 (Rupees Ten Thousand Only) for the offence under Section - 302 of IPC. He was further sentenced to undergo five (05) 2 KL,J & SKS,J Crl.A. No.80 of 2016 years rigorous imprisonment and to pay fine of Rs.5,000/- (Rupees Five Thousand Only) for the offence under Section - 201 of IPC. He was also sentenced to undergo life imprisonment and to pay fine of Rs.10,000 (Rupees Ten Thousand Only) for the offence under Section
- 3 (2) (v) of the Act, 1989. In default to pay fine amounts, he shall suffer simple imprisonment of six (06) month, three (03) months and six (06) months for the charges under Sections - 302 and 201 of IPC and Section - 3 (2) (v) of the Act, 1989, respectively. However, the appellant was not found guilty of the offences under Sections - 493 and 420 of IPC.
4. The case of the prosecution is as follows:
i) Deceased - Kethavath Nanku @ Anitha is the younger daughter of PW.2. They are residents of Vooranchu Thanda H/o Shapur Village and Khilla Ghanpur Mandal, the then Mahabubnagar District and belong to ST -
Lambada Caste. The marriage of the deceased was solemnized with the resident of Lattupally Thanda. After six months of the marriage, the deceased took divorce from her husband and staying with her mother.
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ii) Accused is resident of Shapur village and he belongs to BC 'B' - Kurva Caste. He was recruited as Civil Police Constable during the year 2011. After training, he was posted to Makthal Police Station and attached to Special Party, Mahabubnagar;
iii) The lands of the deceased and the accused are adjacent to one and another. Therefore, while working in their fields, they got acquaintance with each other. The accused exploited the innocence of the deceased and developed illegal contact with her for the last 4½ years from the date of incident. Having developed illegal contact with the deceased, she left her parents house and shifted her residence to various places and stayed with the accused. They lived together like wife and husband. Out of their illegal relation, the deceased conceived;
iv) After getting conceived, the deceased pressurized the accused to marry her, but he had alliance in his cast with another woman and neglected the deceased. In that connection, at the instance of the deceased, a panchayat was held at Padmashali Function Hall, Khilla Ghanpur on 4 KL,J & SKS,J Crl.A. No.80 of 2016 09.04.2013, where the elders (PWs.14 and 8 to 10) decided to pay Rs.3.50 lakhs to the deceased for which she did not agree and pressurized the accused to marry her;
v) On 12.05.2013, the deceased also threatened the accused to approach the Higher Officials of the accused and inform the same, and so also on 13.05.2013;
vi) With preplan, the accused took the deceased on 13.05.2013 on Motorcycle (Splendor Plus) bearing No.AP 22M 7498 on the pretext that he would marry her at Srisailam. When they reached near 30 KMS. Stone, the accused took the bike to the side of culvert, beat her, murdered her by throttling, carried her body about 1 KM. deep into the forest, hid the body under a big boulder in the valley; and
vii) Again, on 18.05.2013, the accused visited the crime scene, poured petrol on the dead body and burnt the body to screen the evidence.
5. On receipt of complaint lodged by PW.2, mother of the deceased on 03.06.2013, PW.20 - Sub Inspector of Police, Khilla Ghanpur Police Station, registered a case in Crime No.48 of 2013 under Sections - 420 & 498 of IPC, Woman Missing and Section - 3 5 KL,J & SKS,J Crl.A. No.80 of 2016 (2) (v) of the Act, 1989. Since one of the offences is under the provisions of the Act, 1989, PW.18 - Sub-Divisional Police Officer, Wanaparthy, was appointed as Investigating Officer and took up the investigation. While so, on 06.06.2013 at 10.00 AM, PW.14 came along with accused and gave a representation to PW.18 stating that while he was in his house, the accused came to him and confessed to have murdered the deceased at Srisailam Reserve Forest as she was harassing him to marry her. On receipt of the said representation, PW.18 altered the section of law by adding Sections - 302 and 201 of IPC by deleting the head 'woman missing' and sent express adding memo to the concerned court and officers.
6. During investigation, PW.18 examined the witnesses, recorded their statements, also collected caste certificates of the accused as well as the deceased and sent the burnt remnants to the FSL. After completion of investigation including receipt of the FSL report and call data information, PW.18 laid charge sheet against the accused and the same was committed to the Sessions Judge which was numbered as Sessions Case No.31 of 2014.
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7. The trial Court after framing charges for the offences under Sections - 493, 420, 302 and 201 of IPC and Section - 3 (2) (v) of the Act, 1989 against the accused, proceeded with trial.
8. During trial, PWs.1 to 20 were examined, Exs.P1 to P41 were marked and MOs.1 to 4 were exhibited. No evidence either oral or documentary was let in on behalf of the accused.
i) To prove the guilt of the accused, prosecution has examined PW.1, owner of the house where the deceased and accused resided; PW.2, mother of the deceased, PW.3, sister-in-law of PW.2, PW.4, owner of cloth shop where the deceased worked, PWs.5, 6 and 7, elder and younger brothers and elder sister of the deceased, PWs.8 to 10, elders of panchayat, PW.11, circumstantial witness to prove last seen theory that he saw the deceased at Bijinepally on 13.05.2013 at about 12.00 noon going on a motorcycle along with accused towards Nagarkurnool; PW.12, owner of crime vehicle i.e., Motorcycle (Splendor Plus) bearing No.AP 22M 7498; PW.13, who offered her daughter in marriage to the accused, PW.14 before whom the accused made extra-judicial confession; PWs.15 and 16, panch witnesses for confession and recovery of mortal remains of deceased, cell phone, motorcycle and photographs; PW.18, the Investigating Officer; 7
KL,J & SKS,J Crl.A. No.80 of 2016 PW.19, the doctor, who gave DNA report and PW.20, the Sub- Inspector of Police, who received Ex.P40 - complaint from PW.2 and issued Ex.P24 - FIR.
9. Ms. Thanusri, learned counsel representing Mr. T. Pradyumna Kumar Reddy, learned counsel for appellant - Accused would contend as under:
i. There is no direct evidence or eye witness to prove the guilt of the accused;
ii. The entire case rests on circumstantial evidence; iii. Almost all the witnesses i.e., PWs.1 to 17 turned hostile and, therefore, the prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt;
iv. Even the circumstances relied on by the prosecution did not form complete chain;
v. Extra-judicial confession statement is a weak piece of evidence and the same cannot be used for recording conviction; vi. The family members of the deceased also did not support the case of prosecution. This itself shows that the accused was implicated falsely;
vii. There is delay in lodging complaint by PW.2; 8
KL,J & SKS,J Crl.A. No.80 of 2016 viii. As per the evidence of PW.19, he received the skeletal parts in an unsealed condition and, therefore, there is a possibility of tampering the same;
ix. Last seen theory was not proved in this case even as per the evidence of PW.11;
x. Though the Investigating Officer collected the call details list, prosecution did not examine any of the service providers; xi. Without considering all the aforesaid aspects, the trial Court recorded conviction against the appellant herein which is not based on sound reasoning; and xii. With the aforesaid submissions, she sought to allow the appeal by setting aside the conviction and sentence of imprisonment imposed on the accused.
10. On the other hand, learned Additional Public Prosecutor would submit as under:
i. Though there is no direct evidence and eye-witness to the occurrence, there is circumstantial evidence which proves the guilt of the accused;
ii. All the circumstances form a complete chain to connect the accused in commission of offence;9
KL,J & SKS,J Crl.A. No.80 of 2016 iii. The confession made by the accused led to recovery of mortal remains of the deceased and, therefore, an irresistible inference can be drawn that the accused committed the aforesaid offences;
iv. DNA of PW.2 matches with the extracts of burnt remnants and, therefore, basing on the report given by PW.19, the trial Court gave a finding that the burnt remnants pertains to the deceased; v. The accused himself made extra judicial confession vide Ex.P25, dated 06.06.2013 before PW.14 admitting his guilt. Though PW.14 turned hostile, during cross-examination he admitted the signature on Ex.25 as Ex.P15; vi. The trial Court relying on the evidence, both oral and documentary, more particularly, PWs.18 to 20 and Exs.P25, P27, P36 and MOs.1 to 4, recorded conviction against the appellant herein. There is no error in it warranting interference by this Court; and vii. With the aforesaid submissions, he sought to dismiss the present appeal.
11. In view above, the point that falls for consideration by this Court is:
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KL,J & SKS,J Crl.A. No.80 of 2016 Whether the conviction and sentence of imprisonment recorded by the trial Court for the offences under Sections - 302 and 201 of IPC and Section - 3 (2) (v) of the Act, 1989 against the appellant herein - accused are sustainable, both on facts and in law?
12. It is relevant to note that PWs.1 to 17 turned hostile. PW.18 is the Investigating Officer. He deposed that earlier he worked as S.D.P.O., Wanaparthy from 08.06.2011 to 28.11.2013. He was appointed as Special Investigation Officer in this case by then Superintendent of Police, Mahabubnagar, vide Ex.P23 - proceedings No.100/C3/10-APT/DCRB/2013, dated 03.06.2013. On the next day, on receipt of express F.I.R. along with C.D. file from PW.20, the Station House Officer, Khilla Ghanpur, he took up investigation of this case.
i) He further deposed that on 04.06.2013 he visited Khilla Ghanpur village and secured PW2 produced by PW.20, examined and recorded her statement. Then, he also secured PW.1, PW3 and PW4 and recorded their statements in Part-II C.D. On 06.06.2013, he received information from PW.20 about extra-judicial confession before PW.14. On his instructions, PW.20 produced before him at Khilla Ghanpur, where he received Ex.P25- representation from 11 KL,J & SKS,J Crl.A. No.80 of 2016 PW.14 containing the extra-judicial confession. Then he recorded the statement of PW.14 and then securing the presence of PWs.15 and 16, he recorded the confession of the accused produced by PW.14 and then submitted Ex.P26, altered memo of FIR to the concerned Magistrate altering Sections - 302, and 201 of IPC and Ex.P27 is the relevant portion of disclosure statement in the confession of accused recorded by him.
ii) PW.18 further deposed that in pursuance of the said confession, the accused led them to the place where he killed the victim, hid the corpse and burnt. Ex. P28 is the seizure mahazar prepared on seizure of mortal remains of the deceased. He also prepared Ex.P29, crime details form incorporating sketch. He also got photographed and videographed the place of seizure and the mortal remains of the deceased seized with LW.16 - photographer and PW.17
- videographer accompanied them to the place of seizure. From there they were led to the house of the accused where they seized MO.1 - motorcycle belonging to the friend of the accused used in commission of the aforesaid offences, Cell Phone (MO.2) of the accused and MO.4
- bunch of photographs of the deceased and the accused at the instance 12 KL,J & SKS,J Crl.A. No.80 of 2016 of the accused under Ex.P30 - panchanama. On the same day, he affected the arrest of the accused after completion of all formalities.
iii) He further deposed that on the same day he recorded the statements of PWs.5 to 7 in Part-II CD. On 07.06.2013, he recorded the statements of PWs 8 to 13, 17 and L.W.16 (Anil Kumar). Then he addressed a letter to the Tahsildar, Khilla Ghanpur to furnish the Caste Certificates of the deceased as well as the accused and the same were received. As per Ex.P31 - Caste Certificates of the deceased and the accused, the deceased belonged to Lambada Community, which is classified as Scheduled Tribe, while the accused belongs to Kurva Community, which comes under Backward Class Community. He also collected Ex.P32 - Scanning Report of the deceased with regard to conformation of her pregnancy from LW.13. On 10.6.2013, under letter of advice, he forwarded all the material objects to FSL, Hyderabad, and also PW2, mother of the deceased, for collection of DNA samples enabling them to compare her DNA with the DNA of mortal remains of the dead body seized at the instance of accused. He also collected call details list of MO2. Cell Phone SIM No.9885542260 stands in the name of Mr. K. Anjaneyulu and another 13 KL,J & SKS,J Crl.A. No.80 of 2016 SIM No.9989303654 stands in the name of Mr. D. Mallesh, the accused herein seized at the instance of the accused from the Service Provider for the relevant period. Exs.P33 and 34 are Call details list. In the call details list, SIM No.9966213886 belonged to the deceased as per the confession of the accused is duly figured. Ex. P35 is call details list of the deceased bearing Cell No.9966213886. CDFD Authorities, on analyzing DNA samples of the mortal remains of the dead body and PW.2, mother of the deceased, gave Ex.P36 - report opining that the mortal remains of the dead body belonged to biological daughter of PW.2.
13. PW.19 - Technical Examiner, CDFD, Hyderabad, deposed that he performed DNA Finger Printing Examination in this case received by Dr. Devender Kumar, Technical Officer, CDFD from SDPO, Wanaparthy on 11.06.2013. He also deposed that the samples are skull, partially burnt hair tuft, soil from crime scene, control earth and partly burnt hip region along with both the legs along with one blood sample of PW.2. On the analysis of the samples sent to him, he gave report opining that the DNA collected from the blood sample sent for analysis duly matched the DNA profile taken out from the partially burnt hip region along with two legs and accordingly he 14 KL,J & SKS,J Crl.A. No.80 of 2016 concluded in his report that DNA test performed on exhibits provided is sufficient to conclude that the source of 'B' (hip region) is from the biological daughter of the source of 'F' (PW.2). Ex.P36 is the opinion given by him.
i) During cross-examination, he admitted that material objects are sent to CDFD in an unsealed carton box. In Ex.P36, it is mentioned that partially burnt hip region without referring to the legs. Hip region consists of several bones including the 'femur'. All are detached by the time he received for analysis. The bone shown to him said to have been taken by him for analysis is known as femur. It is also known as thigh bone. The said bone would be below the hip region in human anatomy. No chits were affixed to the bones sent to him for analysis, more particularly, taken out by him for analysis.
14. PW.20 is the then Sub-Inspector of Police, Khilla Ghanpur Police Station. According to him, he received Ex.P40 - complaint from PW.2 on 03.06.2013 at 17:00 hours stating that her daughter is missing for the last 25 days, she suspected the appellant herein in missing of her daughter. On receipt of the said complaint, he has registered a case in Crime No.48 of 2013 and issued Ex.P24 - FIR. 15
KL,J & SKS,J Crl.A. No.80 of 2016 The same was sent to Magistrate concerned. Investigation was taken by PW.18 as per the orders of the Superintendent of Police. He further deposed that PW.14 came to the police station along with accused and submitted a report stating that the accused made extra- judicial confession before him admitting his guilt. Ex.P25 is the said report of PW.14 with his signature (Ex.P15). He duly endorsed Ex.P25 and made G.D. entry and informed the same to PW.18. Ex.P45 is his endorsement on Ex.P25 report with his signature. Nothing was elicited from him during cross-examination.
15. As discussed above, PWs.1 to 17 turned hostile. The trial Court recorded conviction against the appellant herein relying on the depositions of PWs.18 to 20 and also Ex.P25 - extra judicial confession statement of the accused dated 06.06.2013, Ex.P27 - relevant portion of disclosure statement in the confession of the accused, Ex.P36 - DNA report of CDFD, dated 19.09.2013, Ex.P35 - call details list of the deceased mobile number, Ex.P37 - customer application form of the deceased in respect of her mobile number; Exs.P38 and 39 - customer application forms in the names of the accused and Mr. Kurva Anjaneyulu in respect of the two mobiles and 16 KL,J & SKS,J Crl.A. No.80 of 2016 also relying on MO.2 - dual SIM cell phone, MO.3 - DVD and MO.4 - bunch of photographs.
16. As discussed supra, the deceased belonged to the scheduled tribe i.e., Lambada Community. She was resident of Vooranchu Thanda H/o Shapur village. The deceased was a divorcee. She used to stay with her mother (PW.2). The accused is the resident of Shapur Village and he belongs to BC 'B' (Kurva Caste). The lands of the deceased and the accused are adjacent to each other. While working in their fields, the accused got acquaintance with the deceased. He has exploited her innocence, developed illegal contact with her for the last 4½ years. She went along with accused leaving her parents' house. They stayed together as husband and wife. She conceived due to her illegal relation with the accused. At the time of offence, she was carrying 5½ months pregnancy. The accused was recruited as Civil Police Constable during the year 2011. After training, he was posted to Makthal Police Station and attached to Special Party, Mahabubnagar. Thereafter also, he has continued his illegal relation with the deceased and stayed with her. They stayed in a rented house at Khilla Ghanpur. After she became pregnant, she pressurized the accused to marry her, but he refused. He got alliance with other girl 17 KL,J & SKS,J Crl.A. No.80 of 2016 of his caste and neglected the deceased. A panchayat was held on 09.04.2013 at the instance of the deceased, and PWs.5 and 6, her elder and younger brothers were also present in the said panchayat. PWs.8 to 10 are elders, who participated in the said panchayat at Padmashali Function Hall, Khilla Ghanpur and decided to pay 3½ lakhs to the deceased with a condition that she should allow the accused to have marriage within his caste. The elders also took an amount of Rs.50,000/-. But, the deceased refused the said offer and pressed for marriage. The deceased offered to pay an amount of Rs.5.00 lakhs more than the dowry proposed by his caste people. Thus, she pressed the accused to marry her. Therefore, the accused bore grudge against her and eliminated her as she is coming in his way in marrying a girl of his community and leading normal life. As discussed above, the accused won over seventeen (17) witnesses including the mother, brothers, sister and sister-in-law of the deceased, panch witnesses, owner of the house etc.
17. As deposed by PW.18, the Investigating Officer, he has collected call data i.e., Exs.P33 and P34. He has also mentioned SIM numbers of the accused i.e., 9885542260 and 9989308654. He has also collected Ex.P35 - call details of the deceased and her mobile 18 KL,J & SKS,J Crl.A. No.80 of 2016 SIM No.9966213886. MO.2 is the mobile of the accused which is having dual SIM. MO.3 is the DVD and MO.4 is the bunch of photographs showing the scene of crime 28 in number. He has also collected Ex.P31 - Caste particulars of the deceased and the accused. As per Ex.P31, the deceased belonged to Lambada Caste, which is classified as 'ST', and the accused belongs to Kurva Caste (BC 'B'). He has also collected scanning report of the deceased with regard to pregnancy confirmation of the deceased from LW.13, circumstantial witness, who referred the deceased to Amrutha Clinic, Mahabubnagar for further examination and treatment. Ex.P32 is the said report.
i) PW.18 further deposed that on 10.6.2013 under a letter of advice, he forwarded all the material objects to FSL, Hyderabad and also PW2, mother of the deceased, for collection of DNA samples enabling them to compare her DNA with the DNA of mortal remains of the dead body seized at the instance of accused. He has also collected call details list of MO2 with Cell Phone No.9885542260 stands in the name of Mr. K. Anjaneyulu and another Cell Phone No.9989303654 stands in the name of the accused. The same were seized at the instance of the accused from the Service Provider for the relevant period. Exs.P33 and 34 are call details belongs to the 19 KL,J & SKS,J Crl.A. No.80 of 2016 deceased Mobile No.9966213886. Ex.P35 call-details list of the deceased were sent to the CDFD Authorities for analyzing DNA sources of mortal remains of the dead body and PW.2, mother of the deceased. CDFD Authorities gave report opining that the mortal remains of the dead body belonged to biological daughter of PW.2. PW.36 is the said report dated 19.09.2013.
ii) Initially, the crime was registered for the offences under Sections - 420 and 493 of IPC, Woman Missing and also Section - 3 (2) (v) of the Act, 1989. Thereafter, an alteration memo, dated 06.06.2013, vide Ex.P26 was filed adding Sections - 302 and 201 of IPC to the existing Sections - 420 and 493 of IPC and Section - 3 (2)
(v) of the Act, 1989, however, deleted the head under 'woman missing'.
iii) During cross-examination, he has admitted that he has collected Exs.P37 to P39 two (02) days after recording his chief- examination on 18.02.2015. Exs.P37 to P9 do not contain any endorsement to show that they supplied by the Network Authorities. None of the witnesses examined by him stated that the deceased was using the SIM No.9966213886. Exs.P33 to 35 do not contain the names of subscribers of SIM Numbers. He has not examined Mr. 20 KL,J & SKS,J Crl.A. No.80 of 2016 Kurva Anjaneyulu, whose SIM number was used by the accused in MO.2 mobile with dual SIM. He has further admitted that the distance in between the first and second scene of offence is about 600 to 700 meters to his memory. Both Exs.P28 and P29 were prepared at the second scene of offence. First scene of offence is visible to the second scene of offence to anybody. Both the scene of offences are open places with accessibility to one and all. Photographs were taken with digital Camera. Separate CD for photos is not filed. PW.17 prepared MO.3 - DVD. PW.17 in his statement did not specifically state about preparation of MO.3 by him. He did not collect any certificate from Pw.17 certifying its sanctity as required under Section
- 65B of the Indian Evidence Act. PW.17 had not handed over MO.3 to him in any sealed cover. It was deposited into the Court on 03.10.2013, and till its deposit, the same was in his custody.
iv) He further admitted that Ex.P28 does not disclose seizure of partially burnt hip region bones specifically, and all the skeleton remains are seized and packed in a box and affixed slips with the signatures of panchas. The box was opened and packed each of skeleton remains separately with a cloth repacked and sent to FSL. 21
KL,J & SKS,J Crl.A. No.80 of 2016 FSL report on superimposition of skull is not filed in this case and they did not receive skull superimposition.
18. On consideration of the aforesaid evidence, vide impugned judgment, the trial Court recorded conviction against the accused herein. It is the specific contention of learned counsel for the appellant that MO.3 - DVD is not genuine and it is created for the purpose of this case. But, as deposed by PW.18 - Investigating Officer that confession of the accused led to recovery of the mortal remains of the deceased at the behest of the accused. Therefore, the said recovery part is admissible under Section - 27 of the Indian Evidence Act, 1872. With the said findings, the trial Court disbelieved the version of the accused with regard to MO.3 - DVD.
19. It is relevant to note that Section - 27 of the Evidence Act deals with information received from accused may be proved, and it says provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus, the 22 KL,J & SKS,J Crl.A. No.80 of 2016 essential ingredients are; i) a fact should have been discovered in consequence of information received from accused; ii) he should have been accused of an offence; iii) he should have been in custody of a police officer when he supplied information; iv) the fact so discovered should have been deposed by the witness. The said principle was laid down by the Hon'ble Supreme Court in State of Rajasthan v. Bhup Ram 1.
20. In the present case, the accused made extra-judicial confession before PW.14. However, PW.14 turned hostile and he did not support the case of prosecution. Ex.P25 is the extra-judicial confession dated 06.06.2013. However, during cross-examination, he has admitted that he can identify his signature. He identified signature of witness (Ex.P15) on Ex.P25 - extra-judicial confession statement. He is not the scribe of the said statement dated 06.06.2013. He further admitted that he being an elderly man of their community used to visit Khilla Ghanpur Police Station frequently for settlement of disputes. On one occasion, the police obtained his signatures on a written paper. Out of belief, he simply signed. In Ex.P25, PW.14 admitted his signature which is Ex.P15 and stated that the accused came to his 1 . (1997) 10 SCC 675 23 KL,J & SKS,J Crl.A. No.80 of 2016 house and confessed about the offence committed by him. The accused informed him that since the deceased pressuring him to marry her, he decided to eliminate her and accordingly on 13.05.2013 he called the deceased to Jadcherla informing her that he would marry her at Srisailam Temple and took her on MO.1 - Motorcycle belonging to PW.12. He took her to Srisailam Forest. He slapped her and picked up a quarrel with her. She became unconsciousness and he killed her by throttling. He carried the corpse a kilometer inside deep forest and threw the dead body in a hollow place. Five (05) days thereafter, he brought some petrol, poured over the dead body and set ablaze. As he was apprehending the torture by the police, he requested PW.14 to see that the police will not torture him.
21. As stated above, though PW.14 did not support the case of prosecution, he has admitted his signature on Ex.P25 - extra-judicial confession. It is not in dispute that the accused maintained illicit relation with the deceased, exploited her sexually and made her pregnant. When the deceased insisted him to marry her, he refused. He has hatched a plan to eliminate her as she was coming in his way in marrying a girl of his caste and to lead marital life. As on the date of the incident, the deceased was 5½ months pregnant. Thus, both the 24 KL,J & SKS,J Crl.A. No.80 of 2016 accused and the deceased were in live-in relation for about 4½ years. The accused also knew the caste of the deceased. Thus, he had exploited her sexually, committed murder and screened the evidence. On consideration of the said evidence, more particularly, deposition of PWs.14 and 18 to 20 supported by medical evidence i.e., Ex.P36 - DNA report of CDFD and Exs.P33 to 35 - call data details lists, the trial Court recorded conviction against the appellant herein.
22. As discussed above, in the present case, there is no direct evidence or eye-witness, and the entire case rests on circumstantial evidence. There is no dispute with regard to legal position that relying on circumstantial evidence, conviction can be recorded provided circumstances relied upon by the prosecution should form a concrete unbreakable complete chain of events. The said principle was also held by the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra 2, wherein it was held:
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is 2 . (1984) 4 SCC 116 25 KL,J & SKS,J Crl.A. No.80 of 2016 Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71:AIR 1952 SC 343:1952 SCR 1091: 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198:1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71:AIR 1952 SC 343:1952 SCR 1091 : 1953 Cri LJ 129]:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."26
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153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra [(1973) 2 SCC 793:1973 SCC (Cri) 1033:1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they 27 KL,J & SKS,J Crl.A. No.80 of 2016 should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
23. In the present case, the prosecution relied on the following circumstances:
i. Deceased is a divorcee and staying with her mother; ii. The land of the accused and the deceased are adjacent and while working in the fields, they got acquainted with each other; iii. They were in a live-in-relation since 4½ years and stayed in the house of PW.1 as wife and husband;
iv. She became pregnant and at the time of incident and was five (05) months pregnancy;28
KL,J & SKS,J Crl.A. No.80 of 2016 v. Panchayat was held, elders decided that the accused shall pay Rs.3.00 lakhs to the deceased on the condition that the deceased shall not interfere with marital life of the accused for which the deceased refused and she offered Rs.5.00 lakhs to the accused and insisted him to marry her for which the accused bore grudge and decided to do away her life;
vi. Accused called the deceased on the pretext of marriage, took her on a motorcycle belonging to PW.12;
vii. Last seen theory (PW.11);
viii. Ex.P25 - extra judicial confession made by the accused before PW.14;
ix. Recovery of material objects followed by confession;
x. Ex.P36 - DNA report; and xi. Call data.
The prosecution proved the said circumstances by producing legally acceptable evidence. On the other hand, the accused failed to disprove the same. In a case like this, minor omissions and contradictions can be ignored. Most of the witnesses i.e., PWs.1 to 17 are illiterates and they belong to scheduled tribes. 29
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24. As discussed above, in the present case, seventeen (17) witnesses i.e., PWs.1 to 17 turned hostile. Though they made statements under Section - 161 of Cr.P.C., they turned hostile during trial. The accused being police constable won over all the witnesses including family members of the deceased.
25. It is also relevant to note that PW.2, mother of the deceased, performed the marriage of the deceased, but the deceased took divorce from her husband. Therefore, PW.2 and her sons and other daughter are not happy with the deceased. There were strained relations between them. Though the deceased started living with the accused for 4½ years, they did not object the same. Though the deceased was missing for about 25 days, PW.2 lodged Ex.P40 - complaint only on 03.06.2013. Thereafter, she did not support the prosecution case.
26. The trial Court relied on the confession leading to recovery. It also gave specific findings in paragraph Nos.39 to 44 of the impugned judgment. In paragraph No.45 of the impugned judgment, the trial Court also gave a specific finding with regard to Section 65B (4) of the Evidence Act. In paragraph No.48 of the impugned 30 KL,J & SKS,J Crl.A. No.80 of 2016 judgment, the trial Court also considered the evidentiary value of circumstances relied upon by the prosecution. In paragraph No.49 of the impugned judgment, the trial Court considering depositions of PW.14 and PWs.18 to 20, gave a specific finding that the accused committed the offences. The trial Court also relied upon the report dated 13.05.2013 of the accused and gave a specific finding in paragraph No.54 of the impugned judgment that the accused after combing operation along with other officials he reported on 24.05.2013 at 9.45 hours and then went on rest for two days on 24.05.2013 and 25.05.2013 and reported the headquarters on 26.05.2013 at 10.00 hours. He again applied for leave and went on CL on 01.06.2013 and 02.06.2013, 04.06.2013 and 05.06.2013. On 06.06.2013, he was due to report but he could not report to duty as he was taken into custody by police in the present case. The trial Court also considered the deposition of PW.18 - Investigating Officer on the said aspects.
i) The trial Court also considered all the aspects including MO.3 - DVD and Exs.P27 to 30 and depositions of PWs.18 and 19, in paragraph No.55 of the impugned judgment held that the evidence of PW.18 and veracity of confession made by the accused leading to 31 KL,J & SKS,J Crl.A. No.80 of 2016 recovery of mortal remains of the dead body proves to be that of deceased under Ex.P36 given by PW.19.
ii) In paragraph No.56 of the impugned judgment, the trial Court considered the incriminating circumstances against the accused i.e., recovery of mortal remains of the deceased at the instance of the accused. He led the police to the scene of offence and collected mortal remains of the deceased and the same are proved to be that of the deceased as per Ex.P36 - DNA report of CDFD, dated 19.09.2013 and the evidence of PW.19.
iii) The trial Court also considered three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating it was concealed by himself viz., i) the accused himself would have concealed; ii) he would have seen somebody-else concealing it; and iii) he would have been told by another person that it was concealed there. But, in the present case, the accused did not reveal the Court about his knowledge and also concealment. Therefore, the trial Court relying on Section - 27 of the Evidence Act, gave a finding that the accused concealed the scene of offence.
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iv) It is also relevant to note that the accused confessed before PW.14 which is evident from Ex.P25 - extra judicial confession dated 06.06.2013 and PWs.15 and 16 - panch witnesses. PW.18 deposition is also relevant on the said aspect. PW.18 collected mortal remains of the deceased from Reserve Forest, Srisailam. Ex.P28 is the panchanama supported by MO.3 - DVD and MO.4 - bunch of photographs. Relying on the said depositions, the trial Court gave a specific finding that the accused intentionally concealed the scene of offence and the commission of offences. Thus, he screened the evidence.
v) PW.14 is the community elder of the deceased and he used to go to the police station frequently to settle disputes. He has admitted his signature on Ex.P25 i.e., Ex.P15. The said signature is in English. Thereafter, he was won over by the accused and turned hostile. Thus, his statement that the police obtained his signature on a blank paper cannot be believed. PW.18 specifically stated about Ex.P25 - extra judicial confession made by the accused before PW.14. No doubt that extra-judicial confession is a weak piece of evidence and relying solely on the same, conviction cannot be recorded. But, in the present case, it is supported by other evidence including scientific 33 KL,J & SKS,J Crl.A. No.80 of 2016 and medical evidence. Thus, on consideration of entire evidence, the trial Court gave specific findings in paragraph Nos.57 to 59 of the impugned judgment.
vi) The trial Court also gave a specific finding with regard to trustworthy and reliability of deposition of PW.18 - Investigating Officer in paragraph Nos.62 to 64 of the impugned judgment. As rightly held by the trial Court, the appellant herein - accused failed to establish that he was implicated falsely in the present case by PW.18 due to animosity or otherwise. The accused tried to demolish the call data obtained by PW.18 - Investigating Officer. The Investigating Officer has collected the call data particulars of mobiles of both the accused and the deceased who were in live-in relation for 4½ years. Their lands are adjacent to each other. They are from neighbouring villagers. Therefore, the accused knows the community of the deceased. On consideration of the said aspects, the trial Court gave a finding that the appellant - accused is also guilty of the offence under Section - 3 (2) (v) of the Act, 1989.
27. As discussed supra, the impugned judgment is based on the evidence, both oral and documentary. It is a reasoned judgment and well-founded. The appellant - accused failed to make out any case to 34 KL,J & SKS,J Crl.A. No.80 of 2016 interfere with the said judgment. Thus, the present appeal fails and the same is liable to be dismissed.
28. The present Criminal Appeal is accordingly dismissed confirming the judgment dated 18th & 20th January, 2016 passed by learned Special Sessions Judge - cum - VII Additional District and Sessions Judge, Mahabubnagar in S.C. No.31 of 2014.
As a sequel thereto, miscellaneous applications, if any, pending in this appeal shall stand closed.
__________________ K. LAKSHMAN, J __________________ K. SUJANA, J 7th June 2024 Mgr