Telangana High Court

Sakali Hanmanth, Nagarkurnool ... vs State Of Telangana, Rep Pp., on 4 January, 2022

Bench: A.Rajasheker Reddy, Chillakur Sumalatha

        HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY
                           AND
       HONOURABLE Dr. JUSTICE CHILLAKUR SUMALATHA

                CRIMINAL APPEAL No.384 of 2017

JUDGMENT: (per Hon'ble Dr. Justice Chillakur Sumalatha)

      Questioning the validity and the legality of the judgment that is

rendered by the Court of IV Additional District and Sessions Judge

(Fast Track Court), Nagarkunrool, dated 16.12.2016 in Sessions Case

No.611 of 2013 which stood pending on the file of the said Court, the

appellant, who is the accused in the said Sessions Case, approached

this Court by way of appeal.

2.    Basing on the charge that the appellant (hereinafter be referred

as "the accused" for convenience) committed the offence punishable

under Section 302 I.P.C., the trial Court convicted and sentenced him

to undergo imprisonment for life and also to pay a fine of Rs.1,000/-,

in default of payment of fine, to undergo simple imprisonment for a

period of three months. Aggrieved by the said verdict, the accused

approached this Court questioning its validity and legality.

3.    The grievance of the accused is that the trial Court totally

ignored the fact that there were no eye-witnesses to the alleged

incident and the trial Court wrongly based its judgment on

circumstantial and hearsay evidence. He further pointed out that the

trial Court relied upon the fact that the deceased was last seen in his

company, but it failed to observe that there was no evidence that

himself and the deceased left the arrack shop together after consuming

liquor. The accused further pointed out that the trial Court got
                                                                    ARR, J & Dr.CSL, J
                                       2                          Crl.A.No.384 of 2017




confused and wrongly expected him to disprove the contents of

Ex.P-9-F.I.R. and further, it erred in believing the evidence of P.W-9,

Ex.P-3-the alleged confessional statement and the recovery of M.O-1

and thus, the judgment of the trial Court is unsustainable.

4.      Heard the submission of the learned counsel appearing for the

appellant/accused as well as the learned Additional Public Prosecutor

appearing for the respondent-State.

5. Having regard to the pleas taken and the grounds projected, as

narrated above, the points that fall for consideration are:

(1) Whether the prosecution emerged successful in establishing beyond all reasonable doubt that the accused has committed the offence of culpable homicide amounting to murder which is punishable under Section 302 I.P.C. (2) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the appellant/accused, which in turn requires the interference of this Court exercising the appellate jurisdiction.

6.Point Nos.1 & 2:-

The version of the prosecution, as could be culled out from the

charge sheet, is that one G.Venkataiah (hereinafter be referred as "the

deceased" for brevity) is the brother of the de facto complainant by

name G.Balaswamy and their sister is Niranjanamma. She was given

in marriage to the accused. Thus, the accused is the brother-in-law of

the de facto complainant and the deceased. On the invitation of the

de facto complainant, his sister Niranjanamma and her husband, who ARR, J & Dr.CSL, J

is the accused, went to the house of the de facto complainant on

31.12.2010 to attend the cradle ceremony of the grandson of the

de facto complainant. On the next day, i.e., on 01.01.2011 at about

7 am., the accused and the brother of the de facto complainant, who is

the deceased, went to Malkapur Village for consuming arrack. At

about 2 pm., P.W-3 made a phone call to the de facto complainant and

informed him that the deceased was found dead in the agricultural

fields of one Bainu Manyam. On that, the de facto complainant and

others went to the spot and found the dead body of the deceased. The

accused who accompanied the deceased was not found and therefore,

they suspected that the accused might have killed the deceased

keeping previous grudges in mind. Basing on the complaint given, a

case was registered and investigated into. Inquest was held and the

dead body was subjected to post-mortem examination. On 03.01.2011,

the accused was apprehended at Kranthi Hotel, Telkapally and he was

interrogated in the presence of P.W-6 and L.W-10-Narsimha and the

accused confessed the commission of the offence before them and

revealed that the stick with which he hit the deceased was thrown into

bushes and basing on his confessional statement, the said stick was

recovered and thereafter, the accused was arrested and sent for

remand.

7. Basing on the facts thus projected by the prosecution, the trial

Court framed a charge against the accused for the offence punishable

under Section 302 I.P.C., proceeded with the trial and during the

course of trial, recorded the evidence of the witnesses, subjected the ARR, J & Dr.CSL, J

accused to 313 Cr.P.C. examination and thereafter, basing on the

evidence produced, convicted the accused for the offence punishable

under Section 302 I.P.C. The judgment of conviction is assailed by the

accused.

8. Learned counsel appearing for the appellant/accused submitted

that there is no iota of truth in the version of the prosecution and

basing on false presumptions and surmises, the trial Court convicted

the accused throwing into water the settled principles of Criminal

jurisprudence and indeed, the prosecution utterly failed in establishing

the guilt of the accused beyond all reasonable doubt. The learned

counsel further submitted that none of the prosecution witnesses spoke

that it is the accused who killed the deceased and even the motive is

not established, but without considering all these aspects, the trial

Court convicted the accused which is unjustifiable.

9. The learned Additional Public Prosecutor while concurring with

the submission of the learned counsel for the appellant/accused that

there is no direct evidence, stated that the conviction is based on the

circumstantial evidence and law permits to do so.

10. Thus, in the light of the above submission, it has to be seen

whether the prosecution has produced reliable and convincing

evidence so as to base conviction.

11. Admittedly, as rightly projected by the learned counsel for the

appellant/accused, the case is entirely based on circumstantial

evidence and there is no direct evidence. The judgment of the trial

Court is based on the evidence of P.Ws.1 to 9, Exs.P-1 to P-9 and ARR, J & Dr.CSL, J

M.O.1. The evidence of the de facto complainant could not be brought

on record in the light of his death. The mother and brother of the

de facto complainant were examined as P.Ws.1 and 2 respectively.

The person who passed on the information to the de facto complainant

about the death of the deceased was examined as P.W-3. The person

who passed on the information to P.W-3 about the death of the

deceased was examined as P.W-4. The person in whose presence the

scene of offence was observed by Police was examined as P.W-5.

12. As per the version of the prosecution, the accused confessed the

commission of the offence before the mediators and his confessional

statement led to the recovery of M.O-1-stick which was used for the

commission of the offence. One of the alleged mediators was

examined as P.W-6. P.W-7 is the photographer, P.W-8 is the doctor

who conducted the post-mortem examination and P.W-9 is the

Investigating Officer.

13. Coming to the documentary evidence produced, Ex.P-1 is the

Crime details form, Ex.P-2 is the inquest report, Ex.P-3 is the

confessional statement of the accused, Ex.P-4 is the recovery

panchanama, Exs.P-5 to P-7 are the photographs, Ex.P-8 is the post-

mortem report and Ex.P-9 is the F.I.R. The object alleged to have been

used for the commission of the offence was marked as M.O-1.

14. Basing on the above evidence, both oral and documentary, the

learned judge of the trial Court came to a conclusion that the

prosecution has established its case beyond all reasonable doubt.

ARR, J & Dr.CSL, J

15. Admittedly, there is no direct evidence. P.W-1, who is the

mother of the deceased and the mother-in-law of the accused, and

P.W-2, who is the brother of the deceased and the brother-in-law of

the accused, gave evidence only to the effect that the accused and his

wife came to the house of de facto complainant to attend the cradle

ceremony and on the date of incident, at about 7 am., the accused and

the deceased left the house together for consuming liquor at Malkapur

and during afternoon, they came to know that the dead body of the

deceased was found in the fields of one Bainu Manyam. P.W-1 during

the course of cross-examination stated that she has not seen the

accused killing the deceased. The evidence of P.W-2 is that they

suspected that the accused is responsible for the death of the deceased.

16. As per the version of the prosecution, basing on the incident that

occurred prior to the death of the deceased, in which there was a

quarrel between the accused and the deceased, the accused bore

grudge and on the date of incident, he took the deceased out of the

house on the pretext of consuming liquor and killed the deceased.

Neither P.W-1 nor P.W-2 spoke in clear terms about the occurrence of

the said incident which resulted in the accused killing the deceased.

Also, as per the evidence of P.W-1, the said incident occurred two

months prior to the date of death of her son.

17. P.W-2 during the course of chief-examination itself stated that

one day prior to the incident, they all had good dinner in the night and

also consumed liquor in happy mood. As per the version of the

prosecution, the accused took the deceased from the house on the ARR, J & Dr.CSL, J

pretext of consuming liquor and they both consumed liquor and

thereafter, while they were passing through the fields of Bainu

Manyam, the accused attacked the deceased and killed him. Such

being the case, as rightly projected by the learned counsel for the

appellant/accused, to connect the chain of circumstances, the

Investigating Officer should have at least examined either the owner

or the shopkeeper of the arrack shop where the accused and the

deceased have consumed liquor on the date of incident. Absolutely,

there is no material on record to show that they both proceeded to

Malkapur and consumed liquor there, as projected by the prosecution.

18. The evidence of P.W-3 is that he was informed by P.W-4 about

the presence of a male dead body. The evidence of P.W-4 is that about

five years back, during afternoon, while he was returning with sheep,

he noticed a male dead body with injuries near the lands of one Bainu

Manyam and unable to identify the dead body, he informed the same

to the villagers and on that, P.W-3 and others rushed there and

identified the dead body. There is no evidence on record to show that

the accused was found in the company of the deceased in the vicinity

of agricultural fields of Bainu Manyam soon before the incident.

19. A perusal of the judgment of the trial Court reveals that it based

the conviction of the accused only upon the testimony of P.Ws-6 and

9. The evidence of P.W-6 is that in the year 2011, on one day at about

8 am., himself and L.W-10-Narsimha were summoned by the

Inspector of Police, Nagarkurnool, to Kranthi Hotel of their Village

and by the time they reached there, the accused was in the custody of ARR, J & Dr.CSL, J

Police and on their arrival, they were instructed by the Inspector of

Police to enquire the accused as to reason of his police custody and

during enquiry, the accused confessed that he beat the deceased with a

stick and caused his death and the accused also led them to the

outskirts of Jamisthapur Village and at his instance, M.O-1-stick was

recovered, and the confessional statement of the accused is Ex.P-3 and

the recovery panchanama is Ex.P-4. Such being his evidence during

the course of chief-examination, P.W-6 during the course of cross-

examination admitted that Police had shown M.O-1 to him on that day

and that the accused was in the custody of Police as on the date of his

confession. Basing on those statements, the Additional Public

Prosecutor sought the trial Court to permit him to cross-examine the

witness by declaring him as hostile and permission was accorded.

20. During the course of cross-examination by the Additional

Public Prosecutor, P.W-6 denied the suggestion that he deposed

falsehood during the course of cross-examination and his evidence

during the course of cross-examination is contrary to the evidence

given in chief-examination.

21. P.W-9 gave evidence with regard to the registration of case, the

investigation that went on including the arrest of the accused, the

confessional statement of the accused before the mediators and the

recovery of weapon. The evidence thus brought on record formed

basis for conviction of the accused. It is not the statement of P.W-6

that the accused was found by Police at Kranthi Hotel. P.W-6 during ARR, J & Dr.CSL, J

the course of cross-examination admitted that the accused was in the

custody of the Police as on the date of his confession.

22. If, as projected by the prosecution, M.O-1-stick was recovered

basing on the confessional statement of the accused, there is no reason

as to why P.W-6 states and admits that Police has shown M.O-1 to

him on that day. P.W-6 should have deposed that the said object was

shown to him and others by the accused. These facts were not at all

perceived and observed by the trial Court. Also, neither the evidence

of P.W-6 nor the evidence of P.W-9 was put to strict scrutiny by the

learned judge of the trial Court.

23. It is the case of none that the death of the deceased was a

suicide. However, the learned judge of the trial Court took up a point

for consideration as to whether the death of the deceased is homicide

or suicide and gave the finding as follows:-

"The above circumstances the evidence clinchingly proved that the deceased was died on 01.11.2011 and his body was found with injuries at scene of offence and therefore the death of the deceased was homicide, but not suicide."

24. In a case based on circumstantial evidence, the established

principle of law is that the chain of circumstances should be so linked

that they bind the accused totally and pull him towards the resultant

conclusion of establishment of guilt and not otherwise. When a case is

based on circumstantial evidence, the burden rests upon the

Investigation Officer to collect all the clinching material which would

help in linking the chains so strongly that the prosecution, based on

such evidence, would be able to establish the guilt of the accused ARR, J & Dr.CSL, J

beyond all reasonable doubt. But, in the case on hand, such clinching

and convincing evidence is not found. The learned judge of the trial

Court has given much weight to the evidence of the Investigating

Officer and with an observation that the evidence of the Investigating

Officer is corroborated to some extent with the evidence of the

mediator convicted the accused. However, it has to be seen how far

the evidence of P.W-6 can be relied upon who has changed his

statements from chief-examination to cross-examination. Also, when

P.W-6 has resiled from his earlier statement and permission was

sought to cross-examine him by declaring him as hostile and he was

subjected to cross-examination, the prosecution ought to have

examined the other mediator to establish its case in clear terms. But,

for the reasons best known, the prosecution failed to examine the other

mediator, who is figured as L.W-10 in the charge sheet, as a witness

and his evidence was given up by the learned Additional Public

Prosecutor. P.W-6 even during the course of chief-examination did not

narrate in clear terms the happenings that went on. Also, his evidence

goes to show that the accused was produced before them from the

custody of Police and the accused was present in the custody of Police

while recording the alleged confessional statement also. Therefore,

this Court is not inclined to concur with the following observation of

the trial Court:-

"The evidence of P.W-9 is corroborated by the chief- examination evidence of P.W-6 fully and to some extent after he changed his version in the cross-examination. Therefore the circumstances are believable leading to the ARR, J & Dr.CSL, J

recovery of M.O-1 at the instance of accused as in Ex.P-4. Therefore the recovery of M.O-1 is proved beyond doubt."

25. Discussing about the factors which have to be borne in mind

while relying upon the circumstantial evidence and when a conviction

is sought to be based on such evidence, the Hon'ble Supreme Court

while deciding the case between Krishna and State represented by

Inspector of Police in Appeal (Crl).No.841 of 2008, at para 13

observed as follows:-

"13.Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."

26. Thus, it is clear that when a case rests on circumstantial

evidence, such evidence must be cogent and it should unerringly point

towards the guilt of the accused. It is for the prosecution, in such ARR, J & Dr.CSL, J

cases, to establish that in all human probability, the offence charged

must have been committed by the accused alone and by none others.

27. In the case on hand, in the light of the lacunae pointed out, this

Court is in full disagreement with the observation of the trial Court

that the prosecution established its case beyond all reasonable doubt.

28. In the light of the dictum of law as enunciated above, we are of

the view that the trial Court erred in the manner of appreciating the

facts of the case and in applying the principles that ought to have been

applied regarding the reliability of circumstantial evidence to base