Telangana High Court
Marri Sudhakar Reddy And 3 Others vs The State Of Telangana on 5 November, 2024
1
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 874 OF 2015
Between:
Marri Sudhakar Reddy and others ... Appellants
And
The State of Telangana ... Respondent
DATE OF JUDGMENT PRONOUNCED: 05.11.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
And
THE HON'LE SRI JUSTICE ANIL KUMAR JUKANTI
1 Whether Reporters of Local newspapers
may be allowed to see the Judgments? Yes/No
2 Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? Yes/No
__________________
K.SURENDER, J
_________________________
ANIL KUMAR JUKANTI, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
And
THE HON'LE SRI JUSTICE ANIL KUMAR JUKANTI
+ CRL.A. No. 874 OF 2015
% Dated 05.11.2024
# Marri Sudhakar Reddy and others ... Appellants
And
$ The State of Telangana ... Respondent
! Counsel for the Appellants: Sri P.Prabhakar Reddy for A1
Sri H.Sudhakar Rao for A3
Sri O.Kailashnath Reddy for A4
^ Counsel for the Respondents: Sri Arun Kumar Dodla,
Additional Public Prosecutor
>HEAD NOTE:
1
(2021) 20 Supreme Court Cases 38
2
(2017) 14 Supreme Court cases 359
3
(2002) 7 Supreme Court Cases 295
4
(1984) 4 SCC 116
3
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.874 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The present appeal is filed by appellants/A1 to A4 questioning their conviction under Sections 302, 379, 201 r/w 34 of IPC vide judgment in S.C.No.126 of 2010 dated 20.08.2015 passed by the XIII Additional District and Sessions Judge, Ranga Reddy District at L.B.Nagar.
2. The case of the prosecution is that on 25.08.2007 around 1.00 p.m, A1 went near the house of the deceased and took both the deceased Susheela Devi (D1) and Manju Rani (D2) in a Tata Sumo vehicle. On the said date, P.W.9 was present when D1 and D2 were waiting for a person. The Tata sumo vehicle came there in which A1 was sitting in the vehicle on the left side. However, he could not identify the driver. Both the deceased sat in the vehicle and they left. Two days thereafter, P.W.9 came to know that both the deceased were killed. P.W.8 is the son of D1 and brother of D2. According to him, on 25.08.2007, he called his mother, who 4 informed that she along with Manju Rani were going to Kandukur in a Tata Sumo and one Sudhakar was also present along with them. Thereafter, when he tried to make contact with them, there was no response. Accordingly, P.W.8 went to the police station and lodged complaint Ex.P6 at 11.00 a.m. The said complaint Ex.P6 was registered as 'two women missing' and investigation was taken up by Saroornagar police.
3. Meanwhile, P.W.3, who is the Sarpanch of Narallapally Village, Chitapally Mandal, lodged complaint on 26.08.2007 stating that two dead bodies were found in the outskirts of the village. Accordingly, P.W.3 lodged Ex.P1 report with the police. P.W.18, Circle Inspector of Chinthapally Police Station registered the case in Crime No.120 of 2007 under Section 302 IPC. He went to the village and recorded the statements of P.Ws.3 to 5 and 7. Scene of offence panchanama was conducted. There, he found electric conduction wire of five meters length which was seized in the presence of mediators. Inquest proceedings were also concluded and dead bodies were sent for postmortem examination. On the basis of information, Saroornagar police found that dead bodies were that of 5 mother and sister of P.W.8. P.W.8 then went to the hospital and identified the dead bodies on 27.08.2007. The said case registered by the Chinthapally Police was transferred to Saroornagar Police Station. P.Ws.19 to 21 are Investigating Officers of Saroornagar Police Station. According to P.W.19, while investigation was in progress on 06.09.2007, P.Ws.16 and 17, who are the constables of Saroornagar Police Station apprehended the appellants/A1 to A4 while they were going in Tata Sumo on 06.09.2007 at 2.30 a.m. They were arrested and brought to the police station. On interrogation by P.W.9/Sub-Inspector, A1 allegedly confessed that on account of land disputes, since his father sold one acre of land to both the deceased at a lower price and since there was hike in land prices, A1 with the help of A2 to A4, murdered the deceased. Pursuant to the confession, gold ornaments of both the deceased which were marked as MOs.1 to 10 were seized from A1 to A4. Further, according to P.W.19, there was a written agreement on a bond paper which was purchased by A2 wherein A1 promised to give Rs.2.00 lakhs to A3 and A4 and A2 would stand as a mediator to the said agreement. On the basis of confession and recoveries made, Section of law of 'women missing' registered by Saroornagar 6 Police was altered to Sections 302, 379, 201 r/w 34 IPC. The prosecution also examined P.W.15, who stated that on 26.08.2007, in the evening, A2 brought gold chain and took Rs.4,900/-. The said transaction was recorded in the daily account book and the relevant entry was marked as Exs.P21and the receipt Ex.P22 was produced by P.W.15 on the date of his examination in the Court on 10.09.2013.
4. The police, having seized the Tata sumo vehicle/MO13 along with ornaments at the instance of the appellants and also other evidence collected, charge sheet was filed.
5. The case is one of circumstantial evidence. Learned Sessions Judge, on the basis of the arrest, seizures and mainly basing on the evidence of P.W.9, who found A1 taking both the deceased in a Tata Sumo, recorded conviction.
6. Learned counsel appearing on behalf of the appellants would submit that the case is one of circumstantial evidence. Even according to the admission of P.W.19, there was no progress of investigation from 29.8.2007 to 06.09.2007. There is no basis for arresting the appellants. The only evidence that was relied on by the 7 learned Sessions Judge are the recoveries that were effected at the instance of the appellants. Further, P.W.9 identified A1 for the first time in the Court and there was no Test Identification Parade that was held during investigation. When P.W.9 and A1 are strangers, it is highly improbable that P.W.9 would identify A1 as the person who had taken the deceased in the Tata Sumo for the first time in Court.
7. Learned counsel further argued that identification of the property was not done in accordance with Rule 35 of the Criminal Rules of Practice. In fact, the seized property should have been taken to the Magistrate, mixed with other properties/jewellery and then the witness had to identify the said property. Learned counsel relied on the judgment in the case of Jayan v. State of Kerala 1. In the said judgment, the Hon'ble Supreme Court held that though test identification parade is a weak piece of evidence, however, it can be treated as corroborating evidence. The Hon'ble Supreme Court further found that the evidence of identification cannot be believed if there is large time gap from the date of incident and the date of recording the evidence. Learned counsel also relied on the 1 (2021) 20 Supreme Court Cases 38 8 judgment in the case of Anjan Kumar Sarma and others v. State of Assam 2 , wherein the Hon'ble Supreme Court held that only circumstance of last seen together in the absence of any other satisfactory explanation and circumstantial evidence, conviction cannot be sustained.
8. In Dana Yadav alias Dahu and others v. State of Bihar 3, the Hon'ble Supreme Court while dealing with the facts of case therein held that though there was no test identification parade, since the name of the accused was mentioned in the FIR, not holding test identification parade is of no consequence. However, if a witness identifies the accused for the first time in the Court, the probative value of such uncorroborated evidence becomes unreliable and unsafe to rely on.
9. Learned counsel also relied on the three Judge Bench of Hon'ble Supreme Court wherein the Court found that if the procedure prescribed was not followed in identifying the ornaments, the said identification becomes doubtful.
2 (2017) 14 Supreme Court cases 359 3 (2002) 7 Supreme Court Cases 295 9
10. On the other hand, learned Additional Public Prosecutor would submit that P.W.8 is the son of D1 and brother of D2. Identification of the jewellery of his mother and sister cannot be disbelieved only on the ground that Rule 35 of Criminal Rules of Practice was not followed. P.W.9 is an independent witness, who has seen the D1 and D2 going along with A1 in the car. A1 to A4 were arrested while going in the Tata Sumo in which D1 and D2 were taken earlier and thereafter, they were found dead. The evidence of last seeing the deceased with A1 is spoken to by P.W.9 and immediately on the next day, they were found dead. In the said circumstances, the finding of the learned Sessions Judge regarding involvement of the appellants cannot be disbelieved.
11. Firstly, dealing with the evidence of last seen, P.W.9 stated that on 25.08.2007 around 1.00 p.m, he saw both the deceased waiting for a vehicle. In the meantime, A1, who was in the Tata sumo vehicle/MO13 had arrived and both D1 and D2 left in the said vehicle.
12. The name of P.W.9 was not mentioned in the FIR. Though, he claims to be acquaintance of both the deceased, he never informed 10 P.W.8, who is the son of D1 that he has seen D1 and D2 going in a Tata sumo vehicle. P.W.8 son of D1 lodged complaint on 26.08.2007 after nearly 22 hours of the alleged witnessing by P.W.9. Further, according to P.W.9, he stated in his cross- examination that two days after coming to know of the death of the deceased, he found A1 in the police station and he identified A1 as the person who accompanied the deceased. Admittedly, according to P.W.19, there was no progress in investigation till the arrest of accused on 06.09.2007. P.W.9 stated that two days after he saw the deceased going in the Tata Sumo, he came to know about their death. Two days after coming to know about the deaths, he found A1 in the police station which would be on 29th or 30th of August, 2007.
13. As already stated P.W.9 had specifically stated in his cross- examination that he had identified A1 in the police station on 29/30-08-2007. However, A1 to A4 were arrested on 06.09.2007 at 2.30 a.m according to the arresting constables P.Ws.16 & 17. Nowhere in the evidence of Investigating officers/P.Ws.19, 20 or 21 it is mentioned as to how the accused were identified and details of 11 MO13/Tata Sumo were known to them. When P.W.19 stated that there was no progress in investigation from 29.08.2007 to 06.09.2007, it remains a mystery as to how the details of MO13 were known.
14. Admittedly, no test identification parade was conducted for P.W.9 to identify A1. Admittedly, A1 and P.W.9 are strangers. As already discussed, P.W.9 stated that A1 was found in the police station four days after the incident on 29.08.2007. In the facts of the present case, it appears that P.W.9 was planted as a witness subsequently to come up with the evidence of 'last seen' and that it would be a reliable circumstance in the prosecution case.
15. The police have not collected the details of the phone numbers of the appellants and also that of the deceased to ascertain their location to know whether the deceased and the appellants have travelled till the village in Medak District where the dead bodies were found. No reason is given as to why the location details of the appellants were not taken. The investigating officers ought to have collected details of the phone numbers and their location during the time from 1.00 p.m on 25.08.2007 till their bodies were found on 12 the next day around 6.00 p.m on 26.08.2007. The said details would have lent credibility to the prosecution version.
16. The other circumstances relied on apart from the last seen theory are the recoveries that were made from the appellants. P.W.19/Investigating Officer took A2 to A4 along with mediators to Nedunuru village of Kandukur Mandal to a tamarind tree where the appellants have shown the gold ornaments hidden and they were recovered from the hallow part of the tree. All the said gold ornaments were seized which are four golden bangles, four gold finger rings, one gold chain with Balaji locket. Thereafter, A2 to A4 have taken the police to Mahadev Jewellers, Kandukur village, wherein one gold chain was sold to P.W.15. Ex.P22 is the receipt which was produced by P.W.15 on the date of his examination. On the letter head, it is written as follows:
"Om Prakash S/o.L.R.Chowdhary, age 23 years, Occ: Mahadev Jewellers, R/o.H.No.5-106, Kandukur-99488 29606. On 26/8/07 (Sunday) Rs.4900/-
Page 297, weight gr.7.84 by Kamal Reddy."
17. No evidentiary value can be attributed to Ex.P22. Paying an amount of Rs.4,900/- for a gold chain which weights around 7.4 13 grams appears to be highly improbable. Page number 297 is mentioned in the receipt but it is not convincing. The help of P.W.15 was subsequently taken by the police to give evidence against A2.
18. The recovery of the gold ornaments from hallow of tamarind tree also is doubtful. There is no reason why all the appellants have taken the ornaments and kept the ornaments in the hallow of a tree except for a gold chain, which was taken to P.W.15. As rightly pointed out by the learned counsel for the appellants, the seized ornaments ought to have been produced before the Magistrate for the purpose of identification in accordance with Rule 35 of Criminal Rules of Practice. The said seizure of ornaments from the hallow of tamarind tree is doubtful when the said tree is in the open accessible to everyone and at a considerable distance of 100 kms from Hyderabad. A1 and A2 are residents of Kothagudem and A3 and A4 are residents of Hyderabad.
19. The motive as projected by the prosecution case was narrated by P.W.19. According to him, the father of A1 sold one acre of land to the deceased at a lower price and since there was hike in land prices A1 took the assistance of A2 to A4 and murdered both the 14 deceased. Firstly, the Investigating Officer has not collected any sale deed or any kind of sale transaction in between the father of A1 and both the deceased. The details of the land are not given and it is not stated as to how the death of the deceased would in any manner help A1 in getting back the property which was sold by his father to the deceased.
20. In view of the foregoing discussion, the prosecution has failed to prove any of the circumstances beyond reasonable doubt.
21. The five golden principles constituting panchsheel to prove a case based on circumstantial evidence were summed up in Sharad Birdhichand Sarda v. State of Maharashtra 4 , which reads as follows:
"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] 4 (1984) 4 SCC 116 15 "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 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."
22. Every circumstance of (i) last seen theory; (ii) Arrest; (iii) recovery; (iv) motive are all suspicious and doubtful as discussed in the preceding paras. The prosecution failed to prove beyond reasonable doubt. For the said reason, the conviction of the appellants is set aside.
23. Accordingly, Criminal Appeal is allowed. Since the appellants are on bail, their bail bonds shall stand discharged.
_________________ K.SURENDER, J ____________________________________ ANIL KUMAR JUKANTI, J Date : 05.11.2024 kvs