Telangana High Court
Shaik Moin, Nizamabad Dist. vs Sho, Bichkunda P.S., Nizamabad Dist. on 5 November, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.32 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed by the appellant, questioning the conviction for the offence under Section 302 of IPC and sentencing him to undergo life imprisonment.
2. Heard learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent- State and perused the record.
3. Briefly, case of the prosecution is that on 26.02.2013, at around 09:30 P.M., the deceased, appellant and some of the witnesses PWs.7, 8, 9 and 10 played cards. On the next day, at around 04:00 P.M., the deceased was found dead near Pulkal Village Tank.
4. PW1, who is the father of the deceased, stated that on the information given by others, he found his son dead, he went to scene of offence and found injuries on the face of deceased. Ex.P1/Complaint was lodged. PW2 who is the brother of deceased stated that he accompanied his father PW1. PW3 who is the friend of deceased stated that he saw 2 the dead body of deceased and it appeared that the deceased was beaten with a stone. PW4 who is the relative of deceased stated that deceased went out and did not return and later they found his dead body. PW5 who is a witness stated that he went to attend the marriage and the deceased had also attended the marriage. However, he did not return after attending marriage. PW6 who is another relative also stated about the deceased attending marriage.
5. The crucial witnesses relied upon by the prosecution are PWs.7 to 10. PW7 is the brother-in-law of deceased. He stated that they played cards in their village. He lost around Rs.2,000/-. The said cards were played along with the appellant and also deceased. After playing cards, they went to their respective houses and on the next day, he came to know that the deceased was dead. When the villagers gathered near dead body, the appellant was present, however, he did not attend funeral of the deceased on the next day. He suspected that it was the appellant who killed the deceased. PW8 had also stated that several persons including PW7, deceased and appellant played cards. Thereafter deceased and appellant were seen going together at around 01:30 A.M. On the next day, he found the deceased dead and also injuries were found 3 on his face. PWs.9 and 10 also stated that all of them played cards and the deceased won the game. Thereafter, on the next day, he was found dead.
6. On the basis of circumstantial evidence, the Police found that it was the appellant who had committed murder of deceased and the appellant was arrested on 13.03.2013 i.e., 14 days after the date of incident. Pursuant to his arrest by PW16, in the presence of PW14 and another independent witness, confession of appellant was recorded. At his instance, Rs.13,000/- (MO4) and one cell phone (MO5) were also recovered. On the basis of said recoveries and also last seen theory, charge sheet was filed against the appellant for the offences under Sections 302 and 379 of IPC.
7. The learned Magistrate committed the case to the Sessions Judge. During the course of trial, on behalf of the prosecution, PWs.1 to 16, Exs.P1 to P7 and Material Objects i.e., MOs.1 to 5 were marked.
8. The Learned Sessions Judge relied on the following circumstances to infer and come to the conclusion that accused has committed the murder of deceased:
"20. The important circumstances that weigh in favour of the prosecution are as follows:4
1. First - According to the investigation though all the persons who played cards with the accused, the accused did not attend that funeral of deceased and his absence was conspicuous;
2. Secondly - PW8 who played the cards along with the accused and also deceased deposed that after playing the cards he went to the house and he went to the tank for attending nature call and he saw deceased and accused going together and it was about 01.30 am and on the next day he came to know that the deceased died of the injuries;
3. Thirdly - With respect of the seizure of MO4 cash of Rs.13,000/-, MO5 cell phone, according to the Additional Public Prosecutor, the police cannot offer to plant an amount of Rs.13,000/- for the sake of proving the guilt of the accused; similarly he argued that the cell phone of the accused was found in possession of the accused at whose instance it was seized."
9. Learned counsel appearing on behalf of appellant would submit that only the evidence of last seen together is a weak piece of evidence to place reliance for convicting appellant. Apart from the last seen theory, there are no other corroborating circumstances which the Court can draw the inference that it was the appellant alone, who had committed the murder. He relied on the judgment of Hon'ble Supreme Court in Raja Naykar v. State of Chhattisgarh 1, wherein, it is held as follows:
"7. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to 1 Crl.A.No.902 of 2023 5 conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra 2, wherein this Court held thus:
"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 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) and Ramgopal v. State 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."
153. A close analysis of this decision would show that the following conditions must be fulfilled before 2 (1984) 4 SCC 116 = 1984 INSC 121 6 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 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.
8. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which 7 the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused 'must be' and not merely 'may be' proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved'. It has been held that the facts so established should be consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the accused."
10. Learned counsel also relied on the judgment of Hon'ble Supreme Court in Kanhaiya Lal v. State of Rajasthan 3 and the relevant paragraph is extracted hereunder:
"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
Learned counsel also relied on the judgment of R.Sreenivasa v. State of Karnataka 4, in which, the Hon'ble 3 (2014) 4 SCC 715 8 Supreme Court referred to the case of Kanhaiya Lal (2 supra), while acquitting the accused on the basis of circumstance of last seen together.
11. On the other hand, learned Public Prosecutor would submit that the evidence of PW7, who has last seen the deceased and appellant at 01:30 A.M., would suffice to infer that it was appellant who had killed the deceased. According to the prosecution case, the deceased won money in the cards. Rs.13,000/- was seized at the instance of appellant and also cell phone of the deceased/ MO5. There is no reason as to why the cell phone of the deceased would be with the appellant, unless it was the appellant, who had committed the murder of the deceased.
12. The crucial evidence relied on by the prosecution are the statements of PWs.7 to 10. PW7 stated that he found the appellant at the scene of offence when the villagers gathered, however, he had not attended the funeral, which is suspicious. PW8 who is the crucial witness had stated that he saw the deceased and appellant going together at around 01:30 A.M. However, in the cross examination, he narrated that after one week from the date of incident, the Police 4 2023 LawSuit(SC) 891 9 examined him. Similar is the evidence of PWs.9 and 10, who spoke about the deceased and appellant playing cards and deceased winning amount.
13. The recovery of amount of Rs.13,000/- cannot in any manner be a incriminating circumstance against the appellant. None of the witnesses stated that they have lost the amount of Rs.13,000/-. The witnesses i.e., PWs.8, 9 and 10 stated they lost Rs.2,000/- each. The prosecution has not come up with any evidence to show that the amount found with the appellant in his house does not belong to him and it belongs to deceased and none of the witnesses say that deceased has won an amount Rs.15,000/-, as projected by the prosecution, on the date of playing cards i.e., on 27.02.2013.
14. The other circumstance is recovery of cell phone/MO5 of the deceased, at the instance of the appellant. MO.5 was seized in the presence of PW.14, who is the witness to the alleged seizure. The prosecution has not shown the cell phone to the father (PW1), brother (PW2) or any of other witnesses to state that the deceased was using the said cell phone. The cell phone number of the deceased was not stated and there is no evidence to show that the deceased had purchased the 10 cell phone or from whom he had taken the cell phone for using it.
15. PWs.7 to 10, were not even examined, during the course of inquest proceedings. Their version that they played cards and deceased had won money was made, nearly after one week of the death of the deceased. Apparently, the witnesses suspected the appellant and on the basis of said suspicion, a false case was made up against the appellant. If at all there is any amount of truth, PWs.7 to 11 would have come out with the said version, on the day when they saw the dead body i.e., on 28.02.2013 itself. When the dead body was discovered, according to PW7, appellant was also present but nothing was stated by PWs.7 to 10 either to the father or brother or any of the relatives of deceased regarding playing cards and the deceased winning money in the session of playing cards. Even in the complaint/Ex.P1, there is no whisper about the deceased playing cards and winning amount or about the witnesses i.e., PWs.7 to 10.
16. The evidence of last seen is a weak piece of evidence, unless corroborated by other evidence which the Court can place reliance on to come to a conclusion that the appellant has caused injury and committed murder. As observed by the 11 Hon'ble Supreme Court, the prosecution must prove the case beyond reasonable doubt and the principle case projected by the prosecution "must be proved" and not merely "may be proved". Any amount of suspicion cannot take place of legal proof. The circumstance relied on by the prosecution, though raises suspicion, suspicion is not enough to draw inference to find appellant guilty. For the above discussed reasons, the appellant succeeds and his conviction is liable to be set aside.
17. Accordingly, this Criminal Appeal is allowed and the conviction and sentence of imprisonment imposed against the appellant in S.C.No.210 of 2013 passed by the learned I Additional Sessions Judge, Nizamabad, is hereby set aside. Bail bonds shall stand cancelled.
_________________ K.SURENDER, J ___________________ J. ANIL KUMAR, J Date: 05.11.2024 mnv/plp