Telangana High Court
Manupati Sunkaiah , Sunkulu, ... vs S.H.O., Ramagundam P.S., Karimnagar ... on 12 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 NO.8 of 2015
JUDGMENT:
(Per the Hon'ble Sri Justice SambasivaRao Naidu) This Criminal Appeal has been filed by the appellant under Section 374(2) of Cr.P.C., assailing the judgment of the VI Additional District and Sessions Judge, Godavarikhani dated 18-11-2014 in a Sessions Case vide SC.No.372 of 2013, where under, the trial Court found the appellant herein guilty for the offence under Section 302 of Indian Penal Code (for short 'IPC'), convicted him under Section 235(2) of Criminal Procedure Code (for short 'Cr.P.C.') and sentenced him to suffer Imprisonment for Life and also to pay a fine of Rs.500/- with default sentence.
2. As per the material allegations made in the charge sheet, the appellant herein and two more persons were prosecuted for the offence punishable under Section 302 r/w 34 of IPC. According to the case of prosecution, one Dunnapothula Sridhar (hereinafter will be referred as 'deceased') was the son of PWs.1 and 2 and was residing at 2 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 Kakathiyanagar (NTPC). This offence took place during the year 2012. By that time, the deceased was married and he was having a seven (7) months baby. The deceased was addicted to bad habits since 2005 and involved in property offences along with some more associates. He was arrested in the said criminal cases and was sent to judicial custody.
3. The appellant herein was doing scrap business at Autonagar, NTPC. The deceased used to sell the iron scrap and other material to appellant (A1) and in view of the said transactions, he was moving very close with A1. The prosecution has alleged that the deceased and one K.Vinod @ Pandu, who was examined as PW.4 before the trial Court committed property offences and on 30-07-2012, both of them were arrested by police, Ramagundam in Crime No.36 of 2012. During the course of investigation/interrogation, they made confession about their involvement in other cases, subsequently, they were sent to judicial custody. The appellant herein, who was dealing with iron scrap business was caught by S & PC personnel on the allegation that he was dealing with stolen property, thereby, A1 suspected that the deceased must have passed all the information about his 3 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 involvement and developed grudge against the deceased. It is also alleged in the charge sheet that the deceased made a publicity in the village that A1 was dealing with the stolen property, therefore, he wanted to eliminate the deceased and for that purpose, he sought the help of A2 and A3, who are no other than his brothers-in-law. All the accused hatched a plan to kill the deceased, and were waiting for an opportunity to take revenge against the deceased.
4. The prosecution has alleged that on 24-12-2012, the deceased went to NTPC to his parent's house and having come to know about this fact, the appellant herein called PW.4, who was working under him and close associate of the deceased, asked him to bring the deceased to his house on the guise of celebrating a party and given some money to PW.4 asking him to bring alcohol and chicken. Therefore, PW.4 met the deceased and informed that he was instructed by the appellant herein to bring him to his house to participate in a party. Therefore, PW.4 and deceased went to the house of A1. All of them consumed liquor and during the course of time, A1 came out, contacted A2 over phone and informed the presence of the deceased at his house and also 4 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 informed that he will bring the deceased to IOC, Kundanpalli and asked him to wait at IOC, so that they can kill the deceased. In view of the said directions, A2 and A3 proceeded to IOC on a motor-cycle and were waiting for A1 to come. Thereafter, A1 informed the deceased that some copper wire was available at IOC, Kundanpalli area and asked him to come along with him. The deceased obliged his instructions and after consuming alcohol, PW.4 slept at the house of A1, whereas, A1 took the deceased with him and they proceeded to the Hotel of PW.7, where they consumed beer and A2, A3 joined them, all of them went to the bushes near railway track at the out-skirts of Kundanpalli.
5. The prosecution further alleged that all these people got down from their respective motor-cycles and switched-off their mobile phones. A1 having obtained mobile phone of deceased, handed over the same to A2 and while questioning the deceased as to why he was blaming them as if, they are thieves, attacked him and gave one Hacksaw blade to A3 with instructions to cut the throat of the deceased. Then A3 tried to cut the throat, he could not succeed. Therefore, A3 brought a stone and pelted the same 5 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 over the head of the deceased, thereby, the deceased died at the spot. After confirmation of the death, all the accused left the place and thrown the mobile phone of the deceased in a big culvert and they proceeded to their respective houses.
6. On 26-12-2012, PW.1 visited police station, Ramagundem and presented a written complaint informing the police about the missing of his son and about the visit of PW.4 to his house and also informed the police that when they searched in the nearby locality, they found the dead body of his son nearby the railway track and sought the intervention of the police. On the basis of the said complaint, PW.11 registered a case under Section 302 of IPC and submitted Express FIR to all concerned. On receipt of the copy of said complaint, PW.12, the then Sub-Inspector of Police, Ramagundem took up the investigation and examined all the material witnesses and after completing the other formalities, having affected the arrest of the accused and after completing investigation, laid charge sheet against A1 to A3.
7. The said charge sheet was registered as PRC.No.8 of 2013. After the completion of committal proceedings by the Committal Court, the case was made over to VI Additional 6 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 Sessions Judge at Godavarikhani. The learned trial Judge having examined the accused i.e., A1 to A3 framed a charge under Section 302 r/w 34 of IPC and as the appellant and the other accused denied the allegations proceeded with the trial. During the trial, the prosecution has examined PWs.1 to 12 and marked Exs.P1 to P27. Mos.1 to 11 were also marked on behalf of the prosecution. The contradiction portion in the statement of PW.7 recorded under Section 161 Cr.P.C. has been marked as Exs.D1 and D2.
8. After completion of the trial, the accused were examined under Section 313 Cr.P.C. and the entire incriminating evidence spoken to by the above said prosecution witnesses was informed to the accused. Once again, they denied the said evidence.
9. The trial Judge after hearing both parties, came to the conclusion that the prosecution was not able to prove the guilt of A2 and A3 for the offence under Section 302 r/w 34 of IPC and accordingly, acquitted them under Section 235(1) of Cr.P.C., but found A1 the appellant herein guilty for the offence under Section 302 of IPC and sentenced him to suffer Life Imprisonment along with fine of Rs.500/-.
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10. The learned defense counsel has submitted that there is no eye-witness to the alleged offence. The prosecution was not able to produce any incriminating evidence against the appellant herein. Even as per the allegations in Ex.P1 complaint, the deceased left the house along with PW.4 but without any proper evidence, the trial Court convicted the appellant herein for a grave offence like 302 of IPC and sentenced him with Life Imprisonment, therefore, sought for setting aside the impugned judgment.
11. On the other hand, the learned Assistant Public Prosecutor has argued that the evidence of all the prosecution witnesses proved the involvement of the appellant herein in the murder of deceased. Therefore, the trial Court rightly recorded a finding against the appellant, as such, sought for dismissal of the appeal.
12. It is the case of prosecution that the appellant herein developed grudge against the deceased on the ground that he was unnecessarily defamed in the town at the instance of the deceased. According to the prosecution, A1 who was caught by some security personnel of NTPC was under the impression that it was because of the information 8 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 that might have been passed on by the deceased herein, the security people of NTPC suspected him, thereby, he want to eliminate the deceased. It is also the specific case of the prosecution that for the purpose of eliminating the deceased, he sought the help of A2, A3 and deputed PW.4, who was a close associate of deceased, to bring him to a particular place on the guise of a party and said to have attacked the deceased.
13. Therefore, absolutely there is no eye-witness to the alleged offence, and the prosecution tried to establish the guilt of accused on the basis of circumstantial evidence. The prosecution sought to rely on the evidence of PWs.1 to 12. PWs.1 and 2, the parents of the deceased at best can depose that their son was called by PW.4 and they have no knowledge about the subsequent events. According to the evidence of PW.1, the deceased left the house along with PW.4 but did not return home in the night. Therefore, he started search for his son and in the evening, he came to know that a dead body was lying near the railway track. Therefore, he rushed there and found the dead body of his son. He has raised suspicion against A1 as A1 said to have 9 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 challenged that he would kill his son. It is not the case of PW.1 that he has personally witnessed the offence.
14. Similarly, PW.2, who is no other than the mother of the deceased could not have any information about the offence proper. PW.3 is a photographer with whose help, the Investigating Officer obtained the photographs of the scene of offence. PW.4 has been examined to prove that at the instance of A1 he went to the house of PW.1 and took the deceased with him, but he did not support the case of the prosecution. Whereas, according to his evidence before the trial Court, he has got acquaintance with the deceased and he came to know about the deceased died due to injuries and it is his further evidence that he did not meet the deceased prior to his death and he has no knowledge as to how the deceased died.
15. The learned Public Prosecutor having declared him as hostile tried to elicit by way of cross-examination that at the instance of the appellant herein, he went to the house of PW.1 and got the deceased but he has denied the suggestions. PW.5 is the wife of the deceased, who has no knowledge about the actual offence. PW.6 is a witness to the 10 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 inquest that was conducted on the dead body of the deceased. According to his evidence, they found a boulder which was used for killing the deceased and inquest report is marked as Ex.B15. PW.7 is supposed to be a witness, who could saw the accused with the company of deceased. According to his evidence before the Court, A1, the deceased and another person visited his Hotel on 24-12-2012. They purchased liquor, consumed the same by sitting in the Hotel and subsequently, he saw the photo of the deceased in a News Paper. As per the cross-examination of this witness, customers were not allowed to sit in his Hotel for consumption of alcohol likewise, the appellant herein and deceased did not sit in the Hotel. He did not state before the police, as if, the accused and deceased Sridhar consumed liquor in his shop. In view of this particular portion of his evidence, his statement under Section 161 Cr.P.C., has been marked as Ex.D1. Even if it is believed that PW.7 was running a Hotel, it is highly impossible for him to identify each and every person, who has visited his Hotel and purchased some liquor or snacks. Even otherwise, he is not an eyewitness to the alleged murder nor his evidence can be treated as last scene theory.
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16. PW.8 was examined to prove the alleged confession of A.1. According to the evidence of PW8, on 29-12-2012, at the instance of Inspector of Police, NTPC, he went to police station where he found A1 to A3, on being questioned by the Inspector of Police, the appellant herein took him (PW.8) and one Ramulu to his house and produced an Hacksaw blade from his auto. According to the evidence of PW.8, the police said to have seized the motor-cycle of A3, auto trolley and Hacksaw blade from A1 and prepared Panchanama. As per the evidence of PW.9, who conducted post-mortem on the dead body of the deceased, death of the deceased was due to hemorrhagic shock due to crush injury to head. Therefore, even if a Hacksaw blade is seized from the possession of A1, it cannot connect the appellant herein to the alleged murder of the deceased.
17. PW.10 is supposed to be a witness before whom the appellant herein made a confession, but he was declared as hostile, as he did not support the case of prosecution. PWs.11 and 12 are the Investigating Officers. Therefore, out of these 12 witnesses, none of them were able to say that they saw the appellant herein committed the offence nor it is 12 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 their evidence that the appellant was present when somebody threw a big boulder on the deceased. The Investigating Officer conveniently did not collect any call data record from the mobile phones of the appellant or deceased and no finger prints were obtained from the scene of offence. But the prosecution sought to rely on the evidence of PW.7 to connect the appellant with the death of deceased by simply claiming that the deceased was last seen in the company of A1. Even as per the allegations made in the charge sheet, it is quite clear that there was prior acquaintance between the appellant and deceased as the deceased used to sell stolen scrap to the appellant herein. Therefore, simply because the evidence of PW.7 shows that the deceased was seen in the company of A1, it cannot be a conclusive proof that A1 himself killed the deceased.
18. The most important witness i.e., PW.4 whom the appellant herein instructed to get the presence of deceased did not support the case of prosecution. Therefore, the important link to connect the appellant herein with the death of the deceased has been missing. Simply because one auto trolley and Hacksaw blade was produced by the appellant 13 PSK,J & SSRN, J CRIMINAL APPEAL No.08 of 2015 herein, it cannot be a conclusive proof that the appellant herein killed the deceased. But the trial Court simply by relying on the evidence of PW.7, though the recovery of MO.10 is no way connected with the offence, found the appellant herein guilty for the offence under Section 302 of IPC. Therefore, such sentence cannot sustain, consequently, liable to be set aside.
19. In the result, the appeal is allowed. The sentence imposed by the trial Court is set aside. The appellant i.e., A1 shall be released, if, his presence is not required in any other case. The fine amount, if paid, shall be returned to him after appeal time is over.
Consequently, Miscellaneous petitions if any, are closed. No costs.
__________________ JUSTICE P.SAM KOSHY __________________________ JUSTICE SAMBASIVARAO NAIDU Date: 12.06.2024 PLV