Majumdar Azith Baji, vs The State Of Telangana, Rep By Its ...
2022 Latest Caselaw 6003 Tel

 HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
                       AND
 HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                       Crl.A.No.589 of 2014

                        DATE: 19.11.2022
Between :

Majumdar Azith @ Baji.
                                       ...Appellant
       And

The State of A.P., rep. by its Public Prosecutor.

                                       ...Respondent

For Appellant : Ms.Ande Vishala, Legal Aid Counsel

For respondent : Public Prosecutor.

< Gist:

< Head Note:

? CITATIONS :

1. 2022 LiveLaw (SC) 543

2. 1957 SCR 981

C/15

GAC, J & RRN, J Crl.A.No.589 of 2014

HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

CRIMINAL APPEAL No.589 of 2014

JUDGMENT : (Per G.Anupama Chakravarthy, J)

This appeal is arising out of the judgment dated 20.06.2013

in S.C.No.372 of 2011 on the file of the VII Additional District and

Sessions Judge (FTC), Nizamabad at Bodhan.

2. The appellant is the sole accused who was tried before the

Sessions Judge for the charges under Sections 302 and 201 of IPC.

The Sessions Court convicted the accused under Section 235(2)

Cr.P.C. for the said charges and sentenced him to undergo

imprisonment for life.

3. The brief case of the prosecution is that the accused was

working under one Someshwar Rao (hereinafter referred to as "the

deceased") for drilling the hand pump borewells and had been

demanding the deceased to increase his wages, for which, the

deceased did not respond. Keeping it in mind, the accused attacked

the deceased in a fit of rage with brickbats and murdered him

between 7.30 and 8.00 p.m. on 05.02.2011.

GAC, J & RRN, J Crl.A.No.589 of 2014

4. Basing on the report given by PW-1, who is the son of the

deceased, the Circle Inspector of Police, Bichkunda Police Station

took up investigation, examined the witnesses under Section 161

Cr.P.C., visited the scene of offence, prepared the rough sketch of

the scene of offence including the crime detailed report, conducted

inquest over the dead body of the deceased, forwarded the dead

body to Government hospital, Bichkunda for postmortem

examination, collected the material objects from the scene of

offence and later apprehended the accused on 07.02.2011, recorded

his confession statement in the presence of panchayatdars.

Pursuant to the confession of the accused, recovered the brick bats

(M.O.9) and later remanded the accused to judicial custody. After

receiving the medical reports and on completion of investigation,

laid charge sheet against the accused for the offences punishable

under Sections 302 and 201 of IPC.

5. The trial Court framed charges against the accused for the

above said offences, read over and explained the same to him and

the accused denied the charges, pleaded not guilty and claimed

to be tried. During the course of trial, the prosecution has

GAC, J & RRN, J Crl.A.No.589 of 2014

examined PWs.1 to 15, Exs.P-1 to P-8 and M.Os.1 to 9 were

marked. The accused was examined under Section 313 Cr.P.C. for

the incriminating evidence found against him but the accused

denied the evidence of prosecution and reported no defence

evidence. After considering the entire evidence on record, the trial

Court found that the prosecution was able to prove the guilt of the

accused for the offences punishable under Sections 302 and 201 of

IPC beyond reasonable doubt and therefore, the accused was

convicted and sentenced as stated supra.

6. It is pertinent to note that the appellant was in jail since

20.06.2013 and Legal Aid was granted to him to defend his case

before this Court.

7. Heard learned Legal Aid counsel Smt.Ande Vishala,

appearing for the appellant and the learned Public Prosecutor for

the respondent-State.

8. It is urged by the learned counsel for the appellant that there

were no eyewitnesses to the incident and the entire case is based on

GAC, J & RRN, J Crl.A.No.589 of 2014

the circumstantial evidence and there are many missing links and

therefore, the appellant is entitled for benefit of doubt.

9. On the other hand, the learned Public Prosecutor contended

that the prosecution was able to prove the guilt of the accused

beyond reasonable doubt, and therefore, prayed to confirm the

judgment of the Sessions Judge.

The point for consideration in this appeal is;

"Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and whether there is any irregularity or error in the judgment of the trial Court, requiring interference ?"

10. In order to appreciate the evidence, it is necessary to discuss

about the witnesses. PW-1 is the son of the deceased. Basing on

his report/Ex.P-1, the Police have registered the case against the

accused, upon which, the criminal law is set into motion.

Admittedly, PW-1 is not eyewitness to the incident. His evidence

discloses that the accused used to work under the deceased on a

monthly salary of Rs.3,500/- and on 05.02.2011 at about 9.30 p.m.,

the Upa-Sarpanch Md.Raheemuddin informed him over phone that

GAC, J & RRN, J Crl.A.No.589 of 2014

the accused murdered his father. On that, he along with his

relatives, went to the village and found the dead body of the

deceased nearby the house of one Ameeruddin and the said place

belongs to one Chand Gowri. His evidence also discloses that he

entered into the newly constructed house of Ameeruddin and found

blood-stains, Chappal and spectacles of his father and also found

the chappal of the accused, some coins in the mud and there were

also marks of dragging the dead body of his father. He further

testified that his father used to stay in the newly constructed house

of Ameeruddin along with four other workers and one week prior

to the incident, the accused had telephoned him and informed that

his father was not paying the amount and also abused his father.

M.O.1 is the mobile phone which is of PW-1, used by the

deceased. M.O.2 is the watch, M.O.3 is alleged to be the chappal

of the accused, M.O.4 are the pair of chappals of the deceased,

M.Os.5 and 6 are the lungi and underwear of the deceased. It is

specifically stated by PW-1 that on his dictation, one Nagaraju has

scribed Ex.P-1/report, which was given by him to the Police. In

the cross-examination, it is specifically admitted by PW-1 that the

GAC, J & RRN, J Crl.A.No.589 of 2014

dead body was found in the bushes and he was not aware as to

whether the deceased used to consume alcohol or not. The

evidence of PW-1 is hearsay as he has not witnessed the incident.

11. PW-2's evidence discloses that the deceased used to work

under him, who used to undertake borewell works. His evidence

discloses that the accused along with three other persons, used to

reside with the deceased in his house and later, the deceased went

to Bodhan and returned to the village to install a borewell in the

fields of one Sailu. He further testified that his son Muneeruddin

informed him that the dead body of the Mestry was lying near the

open land of one Chand Gowri and on that, they went to the spot

and saw the dead body of the deceased lying with only underwear

and a lungi was found beside the dead body. Further, they went

into the house and found the spectacles, cash and blood stains.

Therefore, the evidence of PW-2 is also in no way helpful

for the prosecution to connect the accused with the crime. His

evidence would establish that the accused worked under the

deceased along with four other persons.

GAC, J & RRN, J Crl.A.No.589 of 2014

12. The evidence of PW-3/Shaik Akthar is crucial. His evidence

discloses that the accused installed borewell in the fields of one

Ameeruddin and used to stay at the house of Ameeruddin along

with four other workers. About one and a half years back at about

11 a.m., he went to the fields to get tobacco and at about 6 p.m., he

saw the accused and another person, who was aged about 70 years,

in the open plot of Chand Gowri. It is specifically testified by

PW-3 that he saw the accused and the other person in the mobile

phone light. He went to call his master Ameeruddin, but as he was

not there, he called the son of his master, namely, Muneer and later

went to the open plot of Chand Gowri and again saw the accused

and by the time the master came to the place, the accused fled

away and they found the other person bleeding from his nose and

ears.

13. On perusal of the entire evidence of PW-3, it is evident that

he saw the accused with one person, but he did not mention that the

other person was the deceased. Moreover, his evidence does not

disclose that there was a quarrel between the accused and the

deceased while passing from Chand Gowri's plot, to prove that the

GAC, J & RRN, J Crl.A.No.589 of 2014

accused had attacked the deceased either for want of money or for

enhancement of his wages.

14. PW-4 is also the person who got installed the borewell in his

fields through the deceased. His evidence discloses that the son of

PW-2 i.e. Muneeruddin informed him over phone that the accused

and the deceased slept in the plot of Chand Gowri and by the time

they went, the accused was not there and they found the dead body

of the deceased. In the cross-examination, PW-4 admitted that

Muneeruddin telephoned him and informed about the dead body

and on that, they informed the Village Secretary, who in turn,

informed the Police. But, on the other hand, PW-1, who is the son

of the deceased, was the first person to inform the Police about the

incident. His evidence can also be treated as hearsay evidence.

15. PW-5 is also one of the persons who got installed borewell

in his fields. It was deposed by PW-5 that he used to work at some

other place and used to stay at the house of one Muslim person and

he went to place, after the death of the deceased. His evidence

further discloses that he along with Peraji, Laxman and Balaji went

GAC, J & RRN, J Crl.A.No.589 of 2014

to the house of Sailu to watch T.V. and the accused did not

accompany them. At about 8 p.m., when they all went to the house

of Muslim person to have dinner, they found about 30 persons

gathered near the house and also found the dead body of the

deceased in the open place. They also entered into the portion of

the house and saw the articles in pell-mell condition. It is also

admitted by PW-5 in the cross-examination that some persons used

to visit the hotel where they used to consume liquor and they found

the dead body in the bushes.

16. The evidence of PW-6/Mohd.Muneer discloses that they

installed three borewells in their fields. In the year 2011, he

returned from his shop at about 7 p.m., slept in the house and PW-3

came to his house and informed him that two persons were lying

behind the newly constructed house and on that, he along with

PW-3 went and identified the said two persons as the deceased and

accused in the cell phone light and then informed the matter to

PW-4, who in turn, came within 10 minutes. Thereafter, he has

gone 2 to 3 yards away from his house to make a phone call and

GAC, J & RRN, J Crl.A.No.589 of 2014

when again they went to the place, only the deceased was lying and

the accused was not there.

The evidence of PW-6 only discloses that he saw the

accused and the deceased in the open plot along with PWs.3 and 4,

but the evidence of PWs.3 and 4 is silent as to this aspect.

Therefore, the evidence of PWs.3, 4 and 6 are inconsistent with

each other and cannot be considered, so as to believe the last seen

theory in a case of circumstantial evidence. Further, the evidence

of PW-6 discloses that he along with PW-4 and one Sailu went to

the newly constructed house and found blood-stained clothes

scattered here and there and also noticed the marks of dragging the

dead body of the deceased.

17. On one hand, the evidence of PWs.4 and 6 disclose that they

saw two persons alive in the open plot of Chand Gowri and on the

other hand, it is the case of the prosecution that the entire incident

took place in the newly constructed house of one Ameeruddin and

later, the dead body was dragged to the open plot of Chand Gowri

and the third version is that the body was found in the bushes. The

prosecution is unable to fix the place of offence in this case. It is

GAC, J & RRN, J Crl.A.No.589 of 2014

the case of the prosecution that the incident took place in the newly

constructed house of Ameeruddin and later, the dead body was

thrown into the bushes. But, contrary to it, the evidence of PWs.4

and 6 disclose that they have last seen the accused and deceased

together in the open plot of one Chand Gowri when the deceased

was alive. They have not seen the accused attacking the deceased

with the material object i.e. brickbat, which is alleged to have been

recovered basing on the confession statement of the accused.

Therefore, the evidence of PWs.4 and 6 is neither wholly reliable

nor wholly unreliable.

18. The evidence of PW-7/Bethalwar Laxman discloses that the

accused also worked along with them under the deceased and on

the date of incident, he along with other labourers including the

deceased and accused, came to the village and at about 4 or 4.30

p.m., they all sat together at Anjaneya Swamy temple, where the

younger brother of Sailu provided two quarter bottles of liquor and

they all consumed liquor in the hotel of Gangadhar. Thereafter,

they went to the hotel and sat near the culvert. Further, he along

with Pheeraji and Balaraju went to their relative's house to watch

GAC, J & RRN, J Crl.A.No.589 of 2014

T.V. and at about 8 or 8.30 p.m., they went to the house of

Ameeruddin to have dinner and the said Ameeruddin informed

them that the accused killed Someshwar and fled away. Further,

they entered into the house and found blood-stains in the newly

constructed house of Ameeruddin and the dead body was found in

the bushes located towards the corner of the house. His evidence

further discloses that he heard that the accused might have killed

the deceased due to non-payment of labour charges. The evidence

of PW-7 is also hearsay, as he did not witness the incident.

19. The evidence of PW-8/Goparaju Ramchandra Rao discloses

that the deceased and accused used to install borewells and on

05.02.2011 at about 9.30 p.m., he received a phone call and was

informed that the accused committed murder of the deceased. On

that, he went to the village and found the dead body nearby the

house, which is under construction. Therefore, it can be construed

that the evidence of PW-8 is also in no way helpful to the

prosecution to connect the accused with the crime.

GAC, J & RRN, J Crl.A.No.589 of 2014

20. PW-9/Md.Rafiuddin is the Upa-Sarpanch of the village. His

evidence discloses that on 05.02.2011 at about 8.30 p.m., he came

to know about the incident and went and found the dead body of

the deceased in the newly constructed house of PW-2. In the

cross-examination, it is admitted by PW-9 that at about 8.30 or

9 p.m., Police came to the village and he was examined by the

Police on that night and Police guarded the dead body during the

night time.

It is important to note that as per the evidence of PW-9, the

dead body of the deceased was lying in the newly constructed

house of PW-2.

21. PW-10 is the Panch witness for the scene of offence as well

as for inquest. His evidence discloses that Police have prepared the

scene observation report/Ex.P-2 and prepared rough sketch/Ex.P-3

and also conducted inquest over the dead body of the deceased and

the inquest report is Ex.P-4 and collected the material objects from

the scene of offence, which are M.Os.1 to 8. In the

cross-examination, it is specifically deposed by PW-10 that PW-2

GAC, J & RRN, J Crl.A.No.589 of 2014

is the relative of PW-9, who is the Upa-Sarpanch of the village and

the alleged incident took place in the house of PW-2.

22. PW-11 is the panch witness to the confession of the accused.

His evidence discloses that he was called by the Police to the

Police Station and the Police have enquired the accused in his

presence and the accused has confessed his guilt of murdering the

deceased and pursuant to the confession, the accused led them to

the bushes nearby the house of Ameeruddin, where, two brick

pieces (M.O.9) were seized by the Police. Ex.P-5 is the relevant

portion of the confession of accused leading to recovery of M.O.9.

In the cross-examination, it is admitted by PW-11 that he had

acquaintance with the S.I. of Police and by the time he went to the

Police Station, the Upa-Sarpanch, Kamdaar and Rafiuddin were

present in the Police Station.

23. PWs.12 and 14 are the Police officers who registered the

case basing on Ex.P-1/complaint given by PW-1, affected arrest of

the accused and recorded the confession and seizure

panchanama/Ex.P-7 in the presence of panchayatdars.

GAC, J & RRN, J Crl.A.No.589 of 2014

24. PW-15 is the investigating officer, who investigated the

entire case and laid charge sheet against the accused.

25. PW-13 is the Doctor, who conducted autopsy over the dead

body of the deceased on 06.02.2011 and found the following

ante-mortem injuries:

"1. Bruise on right cheek measuring 11 x 3 cm.

2. Bruise near right mandible angle 3 x 1 cm.

3. Bruise below mandible angle on right side one inch below injury No.2; 3 x 2 cm.

4. Bruise over left mandible angle 5 x 3 cms.

5. Bruise over left cheek 8 x 2 cms.

Injuries 1 to 5 may be caused by hit over by having object with broad base (surface).

6. Contusion of left eye noted may be hit by broad surfaced weapon.

7. Bruise over the anterior aspect of neck measuring 8 x 5 cms., over the thyroid cartilage may be hit by heavy object with broad surface.

8. Lalceration over mastoid area on right side measuring 6 x 3 Cms., may be hit by heavy object with cutting edges.

9. Sub-dural hemorrhage on right hemi viaticum near temporal area and blood clot near right temporal area, may be hit by heavy object.

All the injuries will be possible by bricks (M.O.9)."

PW-13 opined that the deceased might have died due to

head injury, subbural hemorrhage on right hamecerianum.

Ex.P-8 is the postmortem examination report. In the cross-

examination, it is deposed by the Doctor that as per the

GAC, J & RRN, J Crl.A.No.589 of 2014

Forensic science, the brick can be considered as a heavy

object and the edges of the bricks are also sharp. It is also

testified by the Doctor that no alcohol substance was found

in the particles of the stomach.

26. Admittedly, the death of the deceased is not a natural

one and it is homicidal. It is for the prosecution to prove

that the accused had committed the murder of the deceased

by causing injuries, knowing well that as a result of those

injuries, the death of the deceased will occur. None of the

witnesses have deposed before the Court about the motive

for the incident, except PW-1, who is the son of the

deceased. The evidence of PW-1 also discloses that about a

week prior to the date of incident, the accused had

telephoned him and informed that the deceased was not

increasing his wages and abused him. Further, PW-1 has

not stated about the said fact either to his father or did not

bring to the notice of any other person i.e. the telephonic call

made by the accused to him. Further, there is no evidence

on record that the accused beat the deceased with the brick

GAC, J & RRN, J Crl.A.No.589 of 2014

and caused injury Nos.1 to 9, which are found in the

postmortem examination report/ Ex.P-8. On perusal of the

injuries sustained by the deceased, it can be noticed that

injury Nos.1 to 5, and 7 are only bruises, which cannot be

made with a brick. It is specifically mentioned at injury

No.8 that it might have been caused with a heavy object

with cutting edges. Moreover, there is no evidence before

the Court as to whether M.O.9/bricks contain the blood-

stains of the deceased or not.

27. It is pertinent to mention that the alleged incident took

place on 05.02.2011 between 7.30 and 8.00 p.m. As per the

evidence of PW-9/Upa-Sarpanch, the Police have arrived at

the scene of offence by 9.00 p.m. in the night and the dead

body was guarded by the Police, but the FIR was registered

basing on the complaint of PW-1 on 06.02.2011 at 11 a.m.,

which clearly discloses that the investigation had

commenced prior to the registration of crime which is fatal

to the case of the prosecution.

GAC, J & RRN, J Crl.A.No.589 of 2014

28. There is a delay of 12 hours in registering the FIR.

Admittedly, the distance between the Police Station and the

place of offence even as per the evidence of PW-1, is 5

kilometres and as to why PW-1 did not prefer report to

Police immediately after the incident, is not explained by the

prosecution. Therefore, there is every likelihood of having

an afterthought between the relatives of the deceased to

implicate a false case against the accused.

29. On perusal of the entire oral and documentary

evidence, it is evident that the entire case rests on the

circumstantial evidence and there are missing of links and

the prosecution has failed to prove the chain of events which

completely forms a ring.

30. The Hon'ble Supreme Court in Mahender Singh & others

v. State of M.P.1, while relying on the judgment in Vadivelu

Thevar v. The State of Madras2, held as under :

"Hence, in our opinion, it is a sound and well established rule of law that the Court is concerned with the quality

2022 LiveLaw (SC) 543

1957 SCR 981

GAC, J & RRN, J Crl.A.No.589 of 2014

and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely,

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the Court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category cases that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."

As per the above ratio, the witnesses are of three types i.e.

(1) wholly reliable, (2) wholly unreliable and (3) neither

wholly reliable nor wholly unreliable.

31. The aforesaid judgment is squarely applicable to the

facts and circumstances of the present case, as in the present

case, the evidence of PWs.4 and 6 is neither wholly reliable

nor wholly unreliable. Therefore, it is not proper to presume

that the accused might have committed the murder of the

deceased. Further more, it is for the prosecution to prove

that the accused had hit/hacked/attacked the deceased with

GAC, J & RRN, J Crl.A.No.589 of 2014

the knowledge that the injuries inflicted by him will result in

the death of the deceased. Moreover, there is no evidence

that the accused has screened away the evidence by dragging

the dead body of the deceased from the house of

Ameeruddin to the bushes. Further, the prosecution has

failed to fix the scene of offence i.e. whether it is the newly

constructed house of Ameeruddin or bushes or the open

place of Chand Gowri. Hence, it can be construed that the

prosecution has miserably failed to prove the guilt of the

accused for the offences punishable under Sections 302 and

201 of IPC, and therefore, the accused is entitled for benefit

of doubt.

32. In the result, the Criminal Appeal is allowed. The appellant

is found not guilty of the offences punishable under Sections 302

and 201 of IPC, and accordingly, the conviction and sentence

imposed on the appellant vide Judgment dated 20.06.2013 in

S.C.No.372 of 2011 on the file of VII Additional District and

Sessions Judge (FTC), Nizamabad at Bodhan, is hereby set aside

and the appellant is acquitted of the charged offences. The

GAC, J & RRN, J Crl.A.No.589 of 2014

appellant shall be released forthwith, if not required in any other

case. M.Os.1 and 2 i.e. the cell phone and wrist watch

respectively, shall be returned to PW-1 and M.Os.3 to 9 shall be

destroyed, after appeal time is over.

Pending miscellaneous applications, if any, shall stand

closed.

_________________________________ G.ANUPAMA CHAKRAVARTHY, J

_________________________________ NAMAVARAPU RAJESHWAR RAO, J

Date: 19.11.2022

N.B:

(1) Judgment be forthwith communicated to the jail authorities concerned.

(2) L.R. copy be marked.

(b/o) ajr