Telangana High Court
Patharla Ramu And Another vs The State Of Ts., Rep. By P.P. on 21 November, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL Nos.1317 of 2016 and 1116 OF 2017
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. These appeals are filed aggrieved by the judgment dated 30.11.2016 in S.C.No.67 of 2015, passed by the IV Additional District and Sessions Judge-cum-Judge, Family Court at Adilabad, convicting the appellants/accused Nos.1 to 3 for the offence under Section 302 of IPC and sentenced to undergo imprisonment for life. Further, they were convicted for the offence under Section 384 of IPC and sentenced to undergo rigorous imprisonment for three years.
2. Heard learned counsel appearing on behalf of the appellants and learned Additional Public Prosecutor appearing on behalf of respondent-State.
3. PW1 lodged a written complaint on 30.08.2014, at 09.00 hours stating that he is a native of Gajulapet, Nirmal and he along with his younger brother Mekala Mahesh are residing at Pakpatla village, by attending agricultural labour work. Their parents are staying at Gajulapet, Nirmal. His father namely Mekala Narsimulu had been working as a 2 worker in toddy shop No.5 on a job of collection of toddy bottles for the past four years. On 30.08.2014, at about 08.00 hours, his relative namely Parsa Bhumanna informed him on phone that his father (deceased No.1) was killed by some unknown persons and the dead body was found lying on the platform of the shop in front of toddy shop No.5 and stated that there is another dead body who was also murdered on the other side platform of another shop.
4. Basing on the said complaint, the Police registered a case and went to the scene of offence and conducted scene of offence panchanama and inquest was also conducted on the same date. The dead bodies were sent for Post Mortem Examination (PME). Autopsy was conducted in the Government Hospital by PWs.11 and 12. PW11 conducted autopsy of deceased No.2 and PW12 conducted autopsy of deceased No.1.
5. According to the Investigating Officer, on receiving information on 01.09.2014 regarding accused No.2, he arrested him. On the basis of accused No.2's confession that he had committed the offence with the aid of accused Nos.1 and 3, accused Nos.1 and 3 were also arrested. Pursuant to accused No.2's confession, accused No.2 handed over two 3 photographs of deceased No.2 and Rs.300/- brought from his house. From there, they went to toddy shop, where the stick allegedly used to hit the deceased was seized. Panchanama was prepared for both the seizure of photographs and Rs.300/-, which were produced by accused No.2 from his house and also seizure of the stick. The confession of accused No.1 was recorded and thereafter he produced blood stained clothes from his house and handed over to the Police. Again both of them were taken to the scene where another stick was recovered near the scene.
6. Having concluded investigation, Police filed charge sheet against the accused Nos.1 to 3 for offence under Section 302, 382 r/w 34 of IPC. According to Police, all accused Nos.1 to 3 were having criminal antecedents.
7. Learned Sessions Judge framed charges against accused Nos.1 to 3. During the course of trial, witnesses Pws.1 to 14 were examined and also Exs.P1 to P30 were marked. MOs.1 to 18 which are wearing apparel, sticks, etc., which were seized from scene of offence and also at the instance of accused Nos.1 to 3, were placed on record. 4
8. The case is one of circumstantial evidence. The only witness who speaks about last seeing the three accused near the shop is PW4. PW4 stated that deceased Nos.1 and 2 were working in his shop as managers. On 29.08.2014 at 10.30 P.M., all three accused came to his shop purchased toddy and they were consuming toddy sitting outside Aloochips which was opposite to their toddy shop. On the next day, when he went to the shop at 07.30 A.M., he saw the dead body lying on the platform of shop nearby his toddy shop.
9. Except PW4, none of the witnesses have seen the appellants near the scene of offence. According to the learned Sessions Judge, the evidence of PW4 is of no use and considering the testimonies of PWs.1 to 4, nothing came to light, regarding the manner, in which both the deceased were killed. However, on the basis of recoveries that were effected, pursuant to the arrest of accused Nos.1 to 3, the learned Sessions Judge found favour with the prosecution version that the appellants who were having criminal antecedents were the persons who had committed murder of deceased Nos.1 and 2.
10. The main thrust of the arguments of both the counsel for appellants is that the recoveries cannot be believed and 5 they were planted. Even assuming that such recoveries were effected, they do not, in any manner, come to the aid of prosecution, to infer that it was the appellants alone who had committed the murder.
11. MO15 is cash and passport size photographs seized from accused No.3, MO16 is white pant from accused No.2, MO17 and MO18 were pants and shirt from accused No.1. Two passport size photos of deceased No.2 were seized at the instance of accused No.3 and marked as Ex.P11.
12. Learned counsel relied on the judgment of Hon'ble Supreme Court in Pancho v. State of Haryana 1, wherein, while dealing with the case of extra judicial confession and circumstantial evidence, the Hon'ble Supreme Court held that Court cannot look into confession of co-accused and give its opinion. In fact, the prosecution has to prove its case beyond reasonable doubt and factum of the confession and the consequent recoveries only cannot be made basis to convict the accused.
13. In Haricharan Kurmi v. State of Bihar 2, the Hon'ble Constitutional Bench of Supreme Court held that a case 1 AIR 2012 SC 523 2 AIR 1964 SC 1184 6 cannot start with the confession of a co-accused person. Once the Court is inclined to accept the confession of co-accused, Court should seek corroboration and assurance from the other evidence placed by prosecution apart from the confession. The presumption of innocence is basis of criminal jurisprudence. The burden is always on the prosecution to prove its case against an accused.
14. In Basudev Soren v. State of Odisha 3, the Hon'ble Division Bench of Odisha High Court, while dealing with case of circumstantial evidence found that mere fact that accused were last seen with the deceased cannot conclusively prove them guilty.
15. In cases of circumstantial witnesses, the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra 4 held as follows:
"The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to 3 2022 CRI.L.J. 2133 4 (1984) 4 SCC 116 7 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."
16. In Jafarudheen and others v. State of Kerala 5, the Hon'ble Supreme Court, while dealing with the case of recovery at the instance of accused found that when the recovery evidence was concocted by the prosecution, it is not reliable and such evidence has to be discarded.
17. The Hon'ble Supreme Court while discussing the admissibility and relevance of Section 27 Evidence Act, discussed various judgments which are relevant:
"II. It could thus be seen that this Court in Jeet Singh case has held that what is relevant is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If the place at which the article hidden is such where only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others.
Insofar as the reliance placed by the appellant on the judgment of this Court in Krishan Mohar Singh Dugal v.5
(2022) 8 SCC 440 8 State of Goa is concerned, in the said case, the accused was convicted for the offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, solely on the basis of recovery at the instance of the accused on the basis of memorandum statement under Section 27 of the Evidence Act. In the said case, the recovery was from a place under the coconut tree, which was accessible to one and all. It was not a case of concealment in a place, which was only within the knowledge of the person concealing it. In any event, in the said case, the conviction was solely on the basis of the said recovery and as such, was found to be untenable.
IV. The position of law in relation to Section 27 of the Act was elaborately made clear by Sir John Beaumont in Pulukuri Kottaya and others v. Emperor [AIR 1947 PC 67] wherein it was held: "Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. In Earabhadrappa alias Krishnappa v. State of Karnataka [1983(2) SCR 552] it was held that for the applicability of Section 27 of the Evidence Act two conditions are pre- requisite, viz., (i) information must be such as has caused discovery of the fact, and (ii) the information must 'relate distinctly' to the fact discovered. Under Section 27 only so much of the information as distinctly relates to the fact really thereby discovered, is admissible. While deciding the applicability of Section 27 of the Evidence Act, the Court has also to keep in mind the nature of presumption under Illustration (a) to (s) of Section 114 of the Evidence Act. The Court can, 9 therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case."
18. PW13 investigating officer stated as follows:
"On 01.09.2014 at 07:00 AM I apprehended accused No.2/Bojja Ramesh and issued notice U/Sec. 41(A)(1) Cr.P.C when he was in mood to confessed, I secured presence two panchas ie., PW8 and PW10 and in their presence I interrogated the accused No.2 who confessed to have committed the murder of deceased No.1 and 2 along with accused No.1 and 3. During the confession of accused No.2, on his confession I seized a blood stained trousers of him from his possession at his instance from his house under cover of confession and recovery panchanama. Ex.P6 is the confession cum-seizure panchanama of accused No.2. In pursuance of it I seized the pant of accused No.2 from his instance, MO.No.16, Pants of Accused No.2. In pursuance of his confession accused No.2 lead me and my party and panchas to the Eastern side lane of No.5 Toddy shop at Old bus stand Nirmal where I seized crime weapon/stick said to have been used by accused No.2 for killing the deceased and also a bed sheet of deceased No.2 under seizure panchanama, Ex.P7. MO.No.12 is the stick, MO.No.13 is the bedsheet of deceased No.2. Then accused No.2 lead us and panchas to another area, Koli Banda, Nirmal where I apprehended accused No.1/Patharla Ramu at the house of his sister at 9.00 AM on the same day. In the presence of same panchas on interrogation accused No.1 voluntarily confessed to have committed the above murder of deceased No.1 and 2 along with accused No.2 and 3. During the confession I seized blood stained shirt and trousers of accused No.1 from his possession at his instance from the house of his sister under cover of confession cum seizure panchanama, Ex.P8. In pursuance of it MO.No.17/Pants of accused No.1 and MO.No.18/Shirt of accused No.1 were seized. Subsequently accused No.1 who was in our custody lead 10 us and the same panchas to the Chowrasta at the corner of the same No.5 Toddy shop near Old bus stand, Nirmal. Where at his instance I seized another crime stick undercover of a separate seizure panchanama which was said to have been used by him for killing the deceased No.1 and 2. MO.No.14 is the stick seized at the instance of accused No.1. Later both the accused No.1 and 2 lead the police as well as the panchas to Pangally, Nirmal where I apprehended accused No.3/Mirza Zakki Baig at his house on the same day at 11.00 AM. During confession of accused No.3 in the presence of same panchas he admitted to have committed the offence of murder of deceased No.1 and 2 along with accused No.1 and 2. I recorded his confessional statement and seized the stolen net cash of Rs.300/- and two passport size photographs of deceased No.2 from his possession under cover of panchanama. Ex.P10 is confession cum seizure panchanama of accused No.3. MO.No.15 is cash of Rs.300/-, Ex.P11 is two passport size photos of deceased No.2."
19. All the recoveries were effected in the presence of PW8 and PW10 independent mediators and PW13 investigating officer. PW8 was declared hostile to the prosecution case. The Investigating Officer arrested accused No.2 on 01.09.2014 and on the basis of accused No.2's confession, the involvement of accused Nos.1 and 3 was established according to the investigating officer and both accused Nos.1 and 3 were arrested. At the instance of accused Nos.1 to 3, their apparel was seized. From accused No.3, two passport size pass photos of deceased No.2 and Rs.300/- was seized. It was observed by the trial Court that accused Nos.1 to 3 having inflicted injuries on the deceased, accused No.3 would 11 have taken passport photos of deceased No.2 and kept in his house.
20. The evidence is apparently fabricated by the prosecution to involve the appellants. It is highly improbable that the accused collected two passport size photos of deceased No.2, having committed his murder, from deceased No.2's pocket. The other recovery aspect is that of the sticks/lathis that were found at the instance of accused Nos.1 and 2. Three days after the incident, the alleged seizure of sticks is shown. The seizure is from an open place near the old bus stand. Such open recovery cannot be believed, since both the places are accessible to people and several people visit bus stand everyday.
21. Apart from the alleged seizures as discussed above, there is no other evidence.
22. However, learned Public Prosecutor stated that clothes were blood stained. Admittedly, FSL has found that clothes were blood stained. However, blood group of the blood on the clothes was not determined to connect the blood to both the deceased. When there is no other evidence, apart from the alleged seizure of blood, sticks which were not sent to FSL, 12 stained clothes which seizures were disputed by the appellants and according to them, they were planted, the seizures from the accused, cannot form basis to convict the appellants.
23. For the aforesaid reasons, these Criminal Appeals are allowed and the judgment dated 30.11.2016 in S.C.No.67 of 2015, passed by the IV Additional District and Sessions Judge-cum-Judge, Family Court at Adilabad, is hereby set aside. Since the appellants/accused Nos.1 and 2 are in jail, they shall be released forthwith, if they are not required in any other case. The bail bonds of appellant/accused No.3 shall stand cancelled.
_________________ K.SURENDER, J ___________________ J. ANIL KUMAR, J Date: 21.11.2024 mnv/plp Note: Registry is directed to dispatch the order forthwith.