Mohammad Khan vs The State Of A.P., Rep., By Its Pp
2023 Latest Caselaw 1659 Tel

           THE HON'BLE SRI JUSTICE M.LAXMAN
                          AND
        THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

     CRIMINAL APPEAL Nos.1088 OF 2013 and 894 of 2014

COMMON JUDGMENT: (per Hon'ble Sri Justice M.Laxman)

1.

These Criminal Appeals are directed against judgment of

conviction dated 18.11.2013 in Sessions Case No.21 of 2013 on

the file of the Sessions Judge, Nizamabad District (hereinafter

referred to as 'trial Court'), whereunder the appellants in both

the appeals, who are accused Nos.1 and 2 were convicted for the

offence under Section 302 of IPC and Section 302 read with

Section 109 of IPC respectively and sentenced to undergo

rigorous imprisonment for life and to pay fine of Rs.1,000/-

each; in default, to undergo simple imprisonment for one month

each. Criminal Appeal No.1088 of 2013 is filed by accused No.1

and Criminal Appeal No.894 of 2014 is filed by accused No.2.

Both the appeals are arising out of same sessions case as such

they are disposed of commonly.

2. The case of the prosecution, in brief, is that accused No.1

and deceased are close friends. Accused No.2 is wife of

deceased. Accused Nos.1 and 2 have developed extra marital

relationship with each other and the said relationship came to

the knowledge of the deceased. After which, there were frequent

quarrels among the deceased and both the accused. On

account of quarrels, the brother-in-law of the accused No.1

shifted the family of accused No.1 to Medipally Village,

Ghatkesar Mandal, Rangareddy District. Originally, the

deceased and both the accused were belonging to MSC Farm,

Jamlam Village, Yedpally Mandal. The extra marital

relationship of both accused developed four years prior to the

incident. On 12.01.2012, accused No.1 came to MSC Farm to

offer prayer at Habeeb Sab Darga. During such a visit, accused

No.2 met him and instigated accused No.1 to do away the life of

deceased. Accused No.1 made 23 calls on 19.01.2012 and 4

calls on 20.01.2012 to accused No.2. Similarly, he also made 5

calls on 19.01.2012 and 9 calls on 20.01.2012 to the deceased.

3. According to the prosecution, on 20.01.2012 as per pre-

plan accused No.1 purchased two bottles of acid in Hyderabad

and started from Hyderabad. He got down at Bodhan Bus

Stand, Nizamabad, and purchased one Black piper whiskey half

bottle. At about 07.00 PM reached Yedpally by bus. The phone

number of accused No.1 was 8096708049 and the phone

number of deceased was 9010548374. At about 07.00 PM,

accused No.1 made a phone call to deceased and requested him

to come to Railway Gate, MSC Farm stating that he was brining

liquor to celebrate. Accused No.1 reached Railway Gate at MSC

Farm and mixed acid with liquor and made a phone call to the

deceased informing his arrival. When, the deceased reached the

place, accused No.1 offered him liquor mixed with acid. The

deceased consumed the same and became unconscious.

Thereafter, accused No.1 strangulated him with towel and took

the cell phone of deceased and went away. Subsequently, after

10 days of the incident accused No.1 allegedly went to P.W.6

and confessed about commission of offence. Accused No.2 was

taken into custody on the date of offence.

4. The trial Court framed charges under Section 302 of IPC

against accused No.1 and charges under Section 302 of IPC r/w

Section 109 of IPC against accused No.2. The accused denied

the charge and claimed to be tried.

5. The prosecution, to support its case, examined P.Ws.1 to

14 and got marked Exs.P-1 to P-15 and M.Os.1 to 6. The

accused has not produced any evidence and denied the

incriminating material on record.

6. The trial Court on appreciation of evidence on record found

that charges were made out against both the accused and

accordingly, they were convicted and sentenced to the terms

indicated hereinbefore. Hence, the present appeals.

7. Heard both sides.

8. Learned counsel for the appellants has contended that the

trial Court has not properly appreciated the evidence on record.

The prosecution tried to establish its case based on the

circumstantial evidence. The circumstances relied upon by the

prosecution were not properly established beyond reasonable

doubt and the trial Court relied upon such circumstances while

convicting the accused. It is also their contention that the

motive for the offence is extra marital relationship between

accused Nos.1 and 2 and such relationship was not spoken by

P.W.1, whereas, P.W.5, who is mother of deceased claims that

there was such extra marital relationship. Hence, in the light of

inconsistent stands by the witnesses, the trial Court should not

have accepted the statements made by the prosecution

witnesses with regard to motive of the offence. Further, the

recording of conversation and video clippings in the cell phone of

accused No.1 were considered as evidence to show that there is

relationship between both the accused which were not properly

proved. The conversation and voice in it were not established

with the help of any scientific evidence. Hence, such evidence

ought not to have been relied upon by the trial Court while

convicting the accused.

9. Learned counsel for both the accused also contended that

extra judicial confession allegedly made by accused No.1 to

P.W.6 was not properly appreciated, as no reasons were given by

P.W.6 that why accused No.1 came to him and made a

confession. Further, the words spoken by the accused were not

exactly reflected. P.W.6 claimed that after 10 to 15 days of

incident, accused No.1 came to him and confessed. Whereas,

the evidence of P.W.5 shows that accused Nos.1 and 2 were

taken into custody on the date of incident only. The evidence of

P.W.1 shows that accused No.2 was taken into custody on the

2nd day of incident and accused No.1 was taken into custody on

the 10th day ceremony of his son i.e., the deceased. This

inconsistency shows that accused No.1 was in custody prior to

the alleged confession. This evidence goes to show that the

claim of extra judicial confession was cooked story. There was

no reason for the accused No.1 to go to P.W.6 for making

confession and such alleged confession is shrugged with

suspicious circumstances and the same should not have been

relied upon by the trial Court.

10. It is further contended by the learned counsel for the

accused that the other circumstance relied upon by the

prosecution is recovery of cell phone of deceased from the

possession of accused No.1. In the present case, two cell

phones were seized from accused No.1, which are M.Os.4 and 5

and they are standing in the name of the deceased. The cell

phone of accused No.2 was also seized i.e., M.O.6 and the same

also stands in the name of the deceased. No one identified the

cell phone of the deceased. No witness has given the cell phone

number of the deceased. When all the cell phones are in the

name of deceased, the prosecution has to prove that which cell

phone was used by the deceased and which one was given to

accused No.1. When such a proof is not there, based on the call

data it cannot be inferred that accused No.1 made calls to

deceased. It can be reverse also. This is not properly

considered by the trial Court.

11. It is also contended that the trial Court has wrongly relied

upon the evidence of P.W.2 to connect the last seen together

theory and there is no evidence that deceased and accused No.1

were last seen together. P.W.2 claims that he has seen the

deceased at Railway Gate, but he did not see accused No.1.

However, this link was tried to be connected basing on the

statement made by the P.W.2 that when he spoke to deceased at

Railway Gate, he told that he was waiting for one Mohd Khan.

The statement of deceased that he was waiting for Mohd Khan

cannot be admitted in evidence as it is hearsay evidence and

this evidence was taken to connect the last seen theory

circumstance which is wrongly done by the trial Court.

Therefore, the conviction is unsustainable and the appeal is

liable to be allowed.

12. Learned Public Prosecutor contended that the

circumstances relied upon by the prosecution were fully proved.

The circumstances like motive, extra judicial confession,

statement of deceased before P.W.2, recovery of cell phone of

deceased from the possession of accused No.1 and conversation

in between both the accused, wherein accused No.2 instigated

accused No.1 to do away the life of deceased, are clearly

established by the prosecution. It is further contended that the

extra judicial confession made by P.W.6 is voluntary and the

same is supported by corroboration. Hence, such confession

was rightly relied upon by the trial Court. It is also contended

that the cell phone which stands in the name of deceased is

M.O.5. M.O.4 belongs to accused No.1, which he used to make

calls to the deceased on the date of the incident. Similarly, the

said cell phone was used by accused No.1 to call accused No.2,

as is made out from the call data under Exs.P-13 to P-15.

Hence, the conviction requires no interference.

13. A close scrutiny of evidence on record, the prosecution to

establish the charges against both the accused placed reliance

on circumstantial evidence apart from the extra judicial

confession. The circumstances relied upon by the prosecution

are motive for the offence, statement of the deceased to P.W.2,

while he was standing at Railway Gate, recovery of cell phone of

the deceased, frequent calls in between the deceased, accused

Nos.1 and 2 and video clippings and conversation in between

accused Nos.1 and 2, which show that accused No.2 have been

instigating accused No.1 to do away the life of deceased.

14. The Apex Court had occasions in several judgments to deal

with proof of circumstantial evidence. The Apex Court in a

recent judgment in the case of Ramanand @ Nandlal Bhari Vs.

State of Uttar Pradesh1 extracted the observation of Mark

Twain, the great American writer and philosopher dealing with

circumstantial evidence, which reads as under:

"It is like this, take a word, split it up into letters, the letters, may individually mean nothing but when they are combined they will form a word pregnant with meaning. That is the way how you have to consider the circumstantial evidence. You have to take all the circumstances together and judge for yourself whether the prosecution have established their case."

15. The law relating to circumstantial evidence is well settled.

In dealing with circumstantial evidence, there is always a danger

that conjecture or suspicion lingering on mind may take place of

proof. Suspicion, however, strong cannot be allowed to take

place of proof and, therefore, the Court has to be watchful and

ensure that conjectures and suspicions cannot take place on

2022 SCC Online SC 1396

legal proof. However, it is no derogation of evidence to say that

it is circumstantial. Human agency may be faulty in expressing

picturisation of actual incident, but the circumstances cannot

fail. The conclusion of guilt should be drawn, in the first

instance, be fully established. Each fact sought to be relied upon

must be proved individually. In applying the principle, a

distinction must be made between facts called primary or basic

on the one hand and inference of facts to be drawn from them,

on the other. In regard to proof of primary facts, the Court has

to judge the evidence and decide whether that evidence proves a

particular fact and if that fact is proved, the question whether

that fact leads to an inference of guilt of the accused person

should be considered.

16. In the present case, for establishing the motive the

prosecution relies upon the evidence of P.W.1 and 5 and video

clippings conversation in the cell phone of the deceased.

Undisputedly, the voices in the clippings and conversation have

not been established. The evidence is also lacking with regard to

ownership of cell phone in which the clippings and conversation

were found. No doubt in the conversation female was asking to

do away with the life of deceased. Unless, the phone in which

the video clippings and conversation were recorded is

established that it belongs to accused No.1, such conversation is

of not much help.

17. The evidence of P.W.1, who is the father of deceased, does

not reveal anything with regard to extra marital relationship

between accused No.1 and 2, whereas, P.W.5, the mother of the

deceased, speaks about such relationship. There is evidence of

photographs in memory of M.O.4 i.e., cell phone, to show that

accused Nos.1 and 2 were closely moving. This piece of evidence

do not establish the ownership of cell phone as that of accused

No.1, but photographs establish the close movement of accused

Nos.1 and 2. This corroborates the substantive piece of evidence

of P.W.5, the mother of the deceased. We fully agree with the

trial Court with regard to proof of motive.

18. The evidence of P.W.2 shows that at about 04.00 to 04.30

PM, he found deceased was at the Railway Gate, MSC Farm and

on enquiry he told that he was waiting for Mohd Khan. It is not

known whether Mohd Khan means accused No.1 only and P.W.2

knows Mohd Khan previously as accused No.1. The evidence is

silent with regard to prior acquaintance of P.W.2 with Mohd

Khan. The case of the prosecution is that accused No.1 made a

call to the deceased from bus stand at Yedpally at 07.00 PM.

When such is the case, the evidence of P.W.2 to the effect that

he had found the deceased at Railway Gate waiting for Mohd

Khan appears to be false. Further, in cross-examination he

admitted that initially suspicion was raised on him for death of

the deceased. The statement of deceased to the P.W.2 is

inadmissible as it is hearsay evidence. Therefore, this evidence

does not help to prove the circumstances of last seen. This

circumstance has no relevance and in fact is not proved.

19. The other circumstance is recovery of M.O.5 i.e., the cell

phone of the deceased from the possession of accused No.1.

P.W.8 and 9 were witness for seizure and they supported

recovery of M.O.4 and 5. According to the prosecution, M.O.4

cell phone belongs to accused No.1 and M.O.5 cell phone

belongs to deceased. The evidence of P.W.14 and Exs.P-13 and

P-14 show that cell phone under M.O.4 to 6 are standing in the

name of deceased. If such is the evidence, the prosecution out

of two seized cell phones seized from accused No.1 shall

establish that M.O.5 belongs to deceased. Absolutely, no such

evidence is found. M.O.5 is not confronted to the parents of the

deceased to prove that cell phone under M.O.5 was used by

deceased. When M.O.5 is not proved to that of deceased, it

cannot be said that deceased was using M.O.5 and accused No.1

was using M.O.4. The prosecution also failed to establish that

why M.O.4, which is standing in the name of deceased was in

the hands of accused No.1. Unless, M.O.5 is identified to be

that of deceased, on account of all the cell phones being in the

name of the deceased, it cannot be said that M.O.5 is cell phone

of the deceased. This evidence was not properly appreciated by

the trial Court.

20. Exs.P-13 to P-15 are call details. No doubt the call data

supports the frequent calls among three cell phones. It is not

known whether the deceased was calling or accused No.1 was

calling. This ambiguity is not cleared by the prosecution.

Therefore, call data which is collected is not of much use. This

circumstance is also not established beyond reasonable doubt.

21. The last piece of evidence relied upon by the prosecution is

the evidence of P.W.6, who is the witness for extra judicial

confession. According to P.W.6, who is elder of MSC Farm, after

10 to 15 days of the incident accused No.1 came to him at about

8.00 to 8.30 AM and met him and confessed that he murdered

deceased by administering acid and liquor, after that he

throttled the neck of the deceased with towel. He also confessed

that accused No.2 abetted him to murder the deceased and 15

days prior to that both the accused met at Habeeb Sab Darga.

22. A close scrutiny of P.W.6 evidence shows that he is labour

by profession and he also claims that he conducted panchayat

with regard to extra marital relationship between both the

accused and he advised accused No.1 to live with his family and

accused No.2 with her family. On that advice, accused No.1 left

to Hyderabad. There is no investigation in this regard and

investigation is silent about the holding of such panchayat. In

fact, it is the case of prosecution that brother-in-law of accused

No.1 intervened in dispute with regard to quarrel between the

deceased and the accused on account of alleged extra marital

relationship and he shifted the family of accused No.1 to

Medipally Village, Ghatkesar Mandal. In the entire evidence of

P.W.6, it is not known why accused No.1 chose him to make

confession. According to P.W.6, accused No.1 came to him in

the morning time at Satapur village gate. The investigation is

silent with regard to place and time of such confession to P.W.6.

23. The principles governing the evidentiary value and

admissibility of extra judicial confession is that such a

confession should be voluntary, true and made in fit state of

mind, only then such confession can be relied upon as any other

fact. It depends on the veracity of the witness to whom it is

made. The person, to whom such a confessions are made must

be unbiased and even remotely inimical to the accused and

nothing is brought against such witness which may tend to

indicate that no motive of attributing untruthful statement to

the accused. Such statement must be clear from ambiguity and

true words of such confession must be given.

24. A close scrutiny of evidence of P.W.6 shows that no valid

reason is found that why accused No.1 chose P.W.6 to make

such a confession. He claims to be elder of the village and

conducted panchayat, but no witness spoke about such

panchayat, more particularly, the parents of the deceased. In

fact, it is the case of the prosecution that the dispute was

resolved by the brother-in-law of accused No.1 and not P.W.6.

Further, P.W.6 is not friend of accused No.1, but he is friend of

brother of accused No.1. If the relationship of P.W.6 and

accused No.1 is very close so as to make confession, before

accused No.1 approached P.W.6, he would have made a call

about his visit. The cross-examination of P.W.6 shows that no

call was made by accused No.1 and it was accidental meet at

Satapur Village Gate. P.W.6 did not explain why he was waiting

at Satapur Village Gate and how accused No.1 knows about the

presence of P.W.6 at Satapur Village Gate. According to

prosecution, the alleged confession was made on 06.02.2012,

but the evidence of P.W.5 shows that the police took both the

accused into custody on the immediate day after the incident.

Whereas, the evidence of P.W.1 shows that accused No.2 was

taken into custody on the immediate date of incident and

accused No.1 was taken into custody on the 10th day ceremony

of the deceased. According to prosecution, accused Nos.1 and 2

were arrested on the same day. If this is true, version of P.W.5

must be believed. This also creates doubt on the alleged extra

judicial confession of accused No.1. This evidence is also not

inspiring truthfulness of such confession. Further, the entire

words spoken by accused No.1 are not reflected by P.W.6. In the

background of such evidence, this Court feels that the evidence

of P.W.6 is not free from doubt and not inspiring the confidence

of this Court.

25. In view of the above, the prosecution failed to prove that all

the circumstances relied upon by them excluding the innocence

of the accused and point out involvement of the accused in the

alleged offence. It is unsafe to rely upon the evidence and the

benefit of doubt must go to the accused. Hence, both the

accused are entitled for acquittal.

26. In the result, both the Criminal Appeals are allowed. The

judgment and sentence of conviction dated 18.11.2013 in

Sessions Case No.21 of 2013 on the file of the Sessions Judge,

Nizamabad District, is set aside. The fine amount, if any paid

shall be refunded and both the accused shall be forthwith

released from the prison, if they are still in the custody and if

their detention is not required in connection with any other

case.

_______________ M.LAXMAN, J

___________________________ SMT. JUVVADI SRIDEVI, J

Date: 18.04.2023 GVR