Kotte Raghu vs The State Of A.P.
2022 Latest Caselaw 3924 Tel

      HIGH COURT FOR THE STATE OF TELANGANA
                       AT HYDERABAD
                             *****

              Criminal Appeal No.444 OF 2009

Between:


Kotte Raghu                                ... Appellant

                           And
The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad.                                 ... Respondent


DATE OF JUDGMENT PRONOUNCED: 28.07.2022

Submitted for approval.

THE HON'BLE SRI JUSTICE K.SURENDER


 1    Whether Reporters of Local
      newspapers may be allowed to       Yes/No
      see the Judgments?

 2    Whether the copies of judgment
      may be marked to Law               Yes/No
      Reporters/Journals

 3    Whether Their
      Ladyship/Lordship wish to see      Yes/No
      the fair copy of the Judgment?
                                         2




               * THE HON'BLE SRI JUSTICE K.SURENDER


                             + CRL.A. No. 444 of 2009



% Dated 28.07.2022


# Kotte Raghu                                           ... Appellant

                                      And

$ The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad                                                ..Respondent.




! Counsel for the Appellant: C. Mohan Prakash


^ Counsel for the Respondent: Public Prosecutor



>HEAD NOTE:

? Cases referred
1
    2018 (1) ALD (Crl.) 74
2
    1984 AIR 1622
                                  3


            HON'BLE SRI JUSTICE K.SURENDER

            CRIMINAL APPEAL No.444 OF 2009
JUDGMENT:

1. The appellant is convicted for the offence under Section

304 Part-II of IPC and sentenced to undergo rigorous

imprisonment for a period of four years vide judgment in

S.C.No.591 of 2008 dated 17.03.2008 passed by the I

Additional Sessions Judge, Karimnagar. Aggrieved by the

same, present appeal is filed.

2. The case of the prosecution is that the deceased is the

son of P.W.1. The deceased and the appellant went to Punjab

for doing labour work and they came back. There were

disputes between the appellant and the deceased at Punjab

regarding lifting of cotton bags. The son of P.Ws.1 and 2 was

found dead on 15.02.2008 at a club and the Manakundur,

Karimnagar District registered a case under Section 302 of IPC

suspecting that it was the appellant who had killed the

deceased by beating him on his head with stone keeping

previous enmity in mind. The police having concluded

investigation filed charge sheet for the offence under Section

302 of IPC against the appellant.

3. The learned Sessions Judge examined P.Ws.1 to 17 on

behalf of the prosecution and marked Exs.P1 to P14 and also

M.Os.1 to 9 during the course of trial.

4. The learned Sessions Judge found that the appellant is

liable to be convicted under Section 304-II IPC on the basis of

the circumstantial evidence.

5. The learned counsel for the appellant submits that this is

a case of circumstantial evidence and the prosecution failed to

prove that any kind of disputes that were in between the

appellant and the deceased. He submits that the prosecution

witnesses never saw the deceased and the appellant together

prior to his death. There are no eye witnesses to the incident

and only on the basis of the alleged recovery of stone and

clothing, the learned Sessions Judge came to a conclusion

that the appellant was guilty for the offence under Section 304

Part-II IPC.

6. Learned counsel for the appellant relied upon the

judgment of the Division Bench of this Court in the case of

State v. Junugari Devender1, wherein it is held as follows:

"51. On the aforestated facts, the case of the prosecution, resting solely on circumstantial evidence, cannot be accepted. The prosecution failed to establish an unbroken chain of events unerringly pointing to the guilt of A1 and A2 obviating any scope for inferring their innocence On the other hand, the investigation seems to have been engineered and manipulated from the start as is evident from the delay in registration of the FIR and the ambiguity as to when A1 and A2 were apprehended.

52. Further, this is not a case attracting the 'last seen' theory as the evidence of PW2, which purports to bring in the said theory, cannot be treated as creditworthy. As pointed out by the Supreme Court in Nizam v. State of Rajasthan, 2015 (2) ALD (Crl.) 898 (SC)= (2016 ) 1 SCC 550, the 'last seen' theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being last seen. In the present case, the evidence of PW.2 fails to inspire confidence and the circumstances in which he claims to have been at the scene of the offence are not believable. The question of applying the 'last seen' theory to the present case therefore does not arise."

7. The present case is of one of circumstantial evidence. In

the case of circumstantial evidence, the circumstances have to

be proved beyond reasonable doubt to infer the guilt of

2018 (1) ALD (Crl.)74

accused. The Hon'ble Supreme Court in the case of Sharad

Birdhi Chand Sarda vs State Of Maharashtra2 held as follows:

"The following conditions must be fulfilled before a case against an accused can be said to be fully established by circumstantial evidence:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(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.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

8. In the instant case, P.Ws.1 and 2 who are parents state

that they suspect the appellant for committing murder of their

son, there is no evidence to show that the appellant and the

deceased being seen together prior to the death of the

deceased. The only evidence is that of hostile witness P.W.3,

who stated that around 4.00 p.m, the accused purchased

toddy and went away and declined even to acknowledge that

he knew the deceased.

1984 AIR 1622, 1985 SCR (1) 88

9. The only evidence on the basis of which the court

convicted the appellant regarding the complicity of the

appellant on the basis of the evidence of P.W.11 who is the

panch witness to the seizure of material objects, i.e., M.O.1 is

the blood stained shirt, M.O.2 is the pant (blood stained),

M.O.3 is the cut drawer, M.O.4 is the round stone and blood

stained earth and controlled earth, M.O.5 is the filter, M.O.6 is

the blood stained earth, M.O.7 is the controller earth and

seized them. P.W.12 is the panch for seizure of pant and shirt

of the accused allegedly worn at the time of incident. Both the

clothes of the deceased and the appellant were sent for FSL

examination vide Ex.P14. In the FSL report, it was mentioned

that both the clothes of the appellant and the deceased

contained blood stains of blood group 'O'.

10. The dead body was already found and the wearing

apparel of the dead body was seized. It is not the case of the

prosecution that the appellant had pointed out the scene of

offence pursuant to confession. The only circumstance which

the prosecution is relying upon the blood that was found on

the wearing apparel of the deceased and the accused and the

blood being group 'O'. Apart from the said circumstances,

there are no other incriminating circumstances to say that the

appellant had committed murder of the deceased. Since there

are no witnesses who have seen the deceased and appellant

prior together prior to his death, it cannot be inferred that the

appellant in any manner is responsible for the death of the

deceased only on the basis of blood stains being found on the

wearing apparel of accused. The police has not sent the

sample blood of accused for any blood test nor any DNA

testing was done to prove that the blood found on the clothes

of accused was that of accused.

11. The motive which gives prominence in the case of

circumstantial evidence, is not proved by the prosecution.

Except P.Ws.1 and 2 saying that the deceased informed that

there were differences while the deceased and the appellant

worked at Punjab, there is no other evidence or incident which

had taken place after the appellant and the deceased returned

from Punjab. It is not clear from the case of the prosecution as

to the exact time and details of the accused and deceased

working in Punjab together. Further, there is also no evidence

as to how many days prior to the said incident, the appellant

and the deceased worked together. According to P.W.1, during

chief examination, he stated that ten years back his son along

with the accused and three others went to Punjab to eke out

their livelihood and they stayed for three months and returned

and on return, it was informed that a quarrel took place

between him and the accused in Punjab. The motive as

suggested is too far fetched, as the alleged quarrel in between

the appellant and the deceased was approximately eight years

prior to his death. As stated by P.W.1, the appellant and the

deceased stayed in Punjab ten years previously for three

months and came back and the death was 1 ½ years prior to

his statement in the Court.

12. In the said circumstances, the prosecution has failed to

prove beyond reasonable doubt that this appellant was

responsible for causing death of the deceased.

13. In the result, the conviction imposed by impugned

judgment in S.C.No.591 of 2008, dated 17.03.2009 is set

aside. Since the accused is on bail, his bail bonds stand

cancelled.

14. Accordingly, the Criminal Appeal is allowed.

__________________ K.SURENDER, J Date: 28.07.2022 Note: LR copy to be marked B/o.kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.444 OF 2009

Date:28.07.2022.

kvs