Telangana High Court
Sabavath Tirupataiah vs The State Of Telangana on 5 November, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.237 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant/accused was convicted for the offence under Section 302 of IPC and sentenced to life imprisonment. Questioning the said conviction, the present appeal is preferred.
2. Briefly, the case of the prosecution is that the deceased namely Anke Jayamma, who is the mother of PW1, was a daily wage labourer. According to PW1, on 15.02.2013, deceased left from the house to pay house tax at Housing Office, Wanaparthy and did not return and they searched in surrounding places and went to the Police Station and gave complaint on 18.02.2013. Thereafter, on 23.02.2013, in the evening at around 05:00 PM, the Police called PW1, since they discovered dead body of a lady. PW1 and others went to the dead body and identified the decomposed body of deceased. It appeared that she was strangulated with a towel. Her ornaments were missing. She also had cell phone number. On the basis of said complaint filed, during the course of investigation, the Police arrested the accused on 23.05.2013. 2 The accused was identified on the basis of evidence of PWs.4 and 5, who were examined on 25.02.2013.
3. After the arrest of accused, he was interrogated and during the course of interrogation, he admitted the guilt of committing murder of deceased and also confessed that he had stolen gold and silver ornaments. At the instance of accused, seizure panchanama was drafted, which is marked as Ex.P12 and MOs.1 to 5, which are gold and silver ornaments, were seized. After completion of investigation, charge sheet was filed against the accused for the offences under Sections 302 and 379 of IPC. Since the offence is exclusively triable by the Court of Sessions, the learned Magistrate has committed the same to the Sessions Court and numbered as S.C.No.630 of 2013.
4. Charges were framed against the accused for the offences under Sections 302 and 379 of IPC.
5. During the course of trial, the learned Sessions Judge examined PWs.1 to 11, marked Exs.P1 to 13 and MOs.1 to 6 were also brought on record.
6. The evidence of PWs.4 and 5 is crucial. According to PW4, she stated that two years prior to her deposition in the 3 Court, when they were searching for coolie work, accused went there on motor bike and took away the deceased with him stating that she was in need of a worker. On the same day, as PW4 could not get any work, she returned home. PW4 informed the same to the son of deceased, son-in-law and daughter, regarding the deceased being taken away by the accused for coolie work. Thereafter, PW4 came to know about the dead body being found. However, in chief examination itself, PW4 stated that she did not have prior acquaintance with the accused and for the first time, she had seen the accused when he has taken away the deceased with him.
7. PW5 also stated that he used to see the deceased at Junior College Centre, during her visit, for doing coolie work. He saw the accused taking away the deceased on his scooter and 3 to 4 days thereafter, he came to know that deceased died and her body was found on the Hillock situated at Jagathpally Village.
8. Learned Sessions Judge mainly placed reliance on the evidence of PWs.4 and 5, who have last seen the deceased with the accused and also the recovery of gold and silver ornaments i.e., MOs.1 to 5. According to prosecution, the said ornaments were identified by PW1 in Test Identification of Property 4 Proceedings conducted by PW9, who was Tahsildar. Tahsildar issued Ex.P9 certificate, certifying that PW1 has identified MOs.1 to 4, which were the ornaments of his mother, in the said proceedings conducted.
9. Learned counsel appearing on behalf of the accused would submit that firstly, the names of PWs.4 and 5 were not mentioned in the complaint/Ex.P1. If at all, PW4 had informed PW1 and others about her seeing accused taking the deceased on the scooter, her name would have been mentioned in the complaint. The deceased was found missing from 15.02.2013. However, complaint was filed on 23.02.2013. Even the name of PW5 is also not mentioned in the complaint. In the said circumstances, the last seen evidence of PWs.4 and 5, without there being any corroborating evidence casts any amount of doubt regarding the prosecution version being correct.
10. Learned counsel relied on the judgment of Hon'ble Supreme Court in Shankar v. State of Maharashtra 1, wherein, the Hon'ble Supreme Court, while dealing with the evidence of last seen version of witnesses found on the facts of the case, such evidence could not be relied upon and accordingly, extended benefit of doubt in favour of accused. 1 2023 LawSuit(SC) 236 5
11. Similarly, in the case of R. Sreenivasa v. State of Karnataka 2, the Hon'ble Supreme Court, while dealing with a case where the trial Court had acquitted the accused, however, the High Court reversed the judgment of acquittal and convicted the accused mainly on the last seen theory. The Hon'ble Supreme Court found that the trial Court was correct, since evidence of last seen could not be believed as there was no corroboration and the evidence of last seen was not probable.
12. Learned counsel further relied on Jabir and others v. State of Uttarakhand 3, wherein, the Hon'ble Supreme Court, under similar circumstances, while dealing with the testimony of last seen witnesses, found that such evidence cannot solely be based on, to convict the accused.
13. Learned Public Prosecutor would submit that once PWs.4 and 5 have stated that they have seen the accused taking away the deceased on his scooter and thereafter, the deceased was found missing, the only conclusion that could be drawn was that the accused had committed murder of deceased for gold and silver ornaments, which were seized at the instance of accused and they were found to be that of 2 2023 LawSuit(SC) 891 3 2023 SCC OnLine SC 32 6 deceased. The identification parade of ornaments was done in the presence of Tahsildar and the same cannot be disputed.
14. PW4 was examined in the Court on 18.12.2015. Her evidence is that she had seen the accused taking the deceased on 15.02.2013. She stated in her chief examination that she does not have prior acquaintance with the accused and for the first time, she had seen him, on the day, when the accused has taken away the deceased with him. Thereafter, PW4 identified the witnesses in the Court, after a gap of nearly two years and ten months. If at all, accused was stranger, it is highly improbable that PW4 would have identified the accused as the person who has taken the deceased, on the said day. Admittedly, the name of PW4 was not mentioned in Ex.P1/Complaint, though PW4 stated that she informed PW1 regarding the accused taking away the deceased on 15.02.2013. PW4 was planted in the present case only to speak against the accused. Her testimony regarding seeing the accused taking the deceased on his scooter, cannot be believed.
15. PW5 is another witness who had stated that he has seen the accused taking away the deceased on the scooter. However, he did not speak about the date, on which he had 7 seen. According to him, 3 or 4 days after she went with the accused, he learnt about death of the deceased. The case of the prosecution is that she was missing on 15.02.2013 and found on 23.02.2013 i.e., after 8 days of her missing. The evidence of PW5 is that he learnt about the death of the deceased 3 or 4 days, after she went with the accused. Such evidence cannot be believed and apparently, PW5 is also a witness planted by the prosecution.
16. The other circumstance, trial Court relied on is the recovery of MOs.1 to 4. No reason is given as to why the Test Identification of the ornaments was not conducted before the Jurisdictional Magistrate and services of the Tahsildar/PW9 were taken to identify the gold and silver ornaments. Firstly, only witnesses who saw the deceased being taken away by accused are PWs.4 and 5. Their names are not mentioned in the complaint nor any descriptive particulars of accused or the scooter on which she was taken away are given. If at all, they are daily wage labourers, they would be taken everyday by person whoever needs their service. In fact, in the complaint, son of the deceased stated that at around 09:00 A.M., the deceased went from house for paying Housing Tax at Tax Office, Wanaparthy. Further, PWs.4 and 5 spoke about the 8 deceased waiting in search of coolie work at Wanaparthy Centre.
17. The description of the gold and silver ornaments were not given by PW1. However, even accepting gold and silver articles were recovered at the instance of the accused, the offence is one under Section 411 of IPC.
18. Absolutely, there is no evidence to remotely suggest that it was the accused who had committed the murder of the deceased and accordingly, conviction under Section 302 of IPC is hereby set aside. However, the accused is convicted under Section 411 of IPC and sentenced to undergo two years imprisonment. Since the accused had already served out two years of sentence, no further orders are required to be passed. The appellant was enlarged on bail on 21.09.2021.
19. Criminal Appeal is partly allowed. Bail bonds shall stand discharged.
_________________ K.SURENDER, J ___________________ J. ANIL KUMAR, J Date: 05.11.2024 mnv/plp