Telangana High Court

Chunchu Venkateswarlu vs The State Of A.P., Rep. By Its P.P. And 2 ... on 13 December, 2023

Author: K. Lakshman

Bench: K. Lakshman

              HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
               HON'BLE SMT. JUSTICE K. SUJANA

               CRIMINAL APPEAL No.1073 OF 2013

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

De facto - complainant filed the present Criminal Appeal

challenging the judgment dated 28.03.2013 passed by learned

Principal Sessions Judge at Khammam, in Sessions Case No.386 of

2011 acquitting accused Nos.1 and 2 for the offence under Section -

302 read with 34 of the Indian Penal Code, 1860 (IPC).

2. Respondent Nos.2 and 3 herein are accused Nos.1 and 2 in

the aforesaid S.C. No.386 of 2011, while the appellant herein is the de

facto complainant, who is the brother of the deceased - Chunchu

Linga Raju.

3. For the sake of convenience, the parties hereinafter will be

referred as they arraigned in S.C. No.386 of 2011.

4. The case of the prosecution is as under:

i) The deceased - Chunchu Linga Raju and accused Nos.1 and

2 are the residents of Singaram Village, hamlet of Kothapet and close

friends. Accused No.1 was working as Electrician in Dolomite Mines,

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Madharam. He is also doing Money Lending Business privately

through accused No.2 and the deceased. Accused No.1 observed that

the deceased was irregular in handing over the money to him.

ii) The wife of accused No.1 divorced him and residing

separately. Later, accused No.1 developed illegal contacts with a

widow - Ballem Vimala, resident of Kothapet and continuing the

same. Whenever, accused No.1 used to visit her house, he used to

take the deceased with him. Subsequently, the deceased also

developed relation with her and used to meet her in the absence of

accused No.1.

iii) The relationship between the deceased and Ballem Vimala

was brought to the notice of accused No.1 by accused No.2, due to

which, accused No.1 bore grudge against the deceased and warned

him. But, the deceased did not change his attitude and continuing the

relationship with her.

iv) Accused No.1 was waiting for an opportunity to eliminate

the deceased and sought assistance of accused No.2. Accused Nos.1

and 2 hatched a plan to eliminate the deceased other than in local. In

furtherance of their malicious plan, accused Nos.1 and 2 along with

deceased picked up a quarrel with one Adarlla Lalaiah, an Auto-

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rickshaw driver of the same village. In this regard, a petty case was

booked in Garla Bayyaram Police Station.

v) In pursuance of pre-plan, on 30.05.2011, accused No.1 took

accused No.2 and the deceased under the guise of attending Yellandu

Court and subsequently they paid fine of Rs.400/- each in STC

No.127 of 2001 on the file of Judicial Magistrate of Second Class,

Yellandu and returned on the motor bike of accused No.1 rided by

accused No.1. While they were leaving the Court premises, LW.10

witnessed them. Later, they went to Bhavani Bar, consumed liquor

and got parcel of one 1B Full Bottle and also purchased Sprite Cool

Drink Bottle, disposable glasses and stuff and a wire on the way.

vi) In furtherance of their pre-plan, after reaching the outskirts

of Nehrunagar Village, they stopped the motor bike and consumed

liquor. Accused Nos.1 and 2 intentionally got drunk the liquor heavily

to the deceased. Accused Nos.1 and 2 picked up quarrel with the

deceased and beat him. The same was witnessed by PW.7 and he

admonished them and went away.

vii) While the deceased was in flutter condition, accused No.2

caught hold the deceased firmly and accused No.1 took the sharp

edged stone available at the scene and beat on his fore-head and

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caused bleeding injuries. Both accused Nos.1 and 2 looped the wire

which was already procured by them around the neck of the deceased

and strangulated and killed him. After committing murder, they

shifted the body of the deceased into the bushes and absconded.

viii) On receipt of the complaint lodged by the brother of the

deceased, de facto complainant, on 31.05.2021 at 1000 hours, the

Police, Yellandu, registered a case in Crime No.107 of 2011 under

Section - 302 IPC and investigated into the matter.

5. On completion of investigation, the police filed a charge

sheet against both the accused for the offence punishable under

Section - 302 read with 34 IPC and, thereafter, the case was

committed to the Court of Sessions which was taken on file vide S.C.

No.386 of 2011 for the said offence.

6. The trial Court framed charge under Section -302 read with

34 IPC against both the accused. The accused denied the charge and

pleaded not guilty and prayed for trial.

7. During trial, the prosecution has examined as many as 16

witnesses viz., PWs.1 to 16, marked Exs.P1 to P21 documents and

MOs.1 to 10. No evidence was let in on behalf of the accused.

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8. On completion of trial and on appreciation of evidence, both

oral and documentary, the trial Court found the accused not guilty of

the aforesaid charge framed against them and accordingly acquitted

them of the aforesaid charge.

9. Feeling aggrieved by the said acquittal, the de facto

complainant preferred the present appeal.

10. Heard Mr. Pula Rao Yellanki, learned counsel for the

appellant - de facto complainant and Mr. M.V. Hanumantha Rao,

learned counsel for respondent No.3 - accused No.2 and also Mr.T.V.

Ramana Rao, learned Additional Public Prosecutor appearing for

respondent No.1 - State.

11. It is represented by learned Additional Public Prosecutor

that respondent No.2 - accused No.1 died on 13.12.2019. In proof of

the same, he has filed copy of Death Certificate dated 14.02.2020

issued by the Panchayat Secretary, Kotha Thanda Village.

12. PW.1 is the complainant and brother of the deceased and

also a circumstantial witness; PW.2 is the relative of the deceased,

while PW.3 is the wife of the deceased. PWs.4, 5 and 9 to 11 are the

circumstantial witnesses. PW.6 is the Photographer. PW.7 is the eye-

witness. Accused made extra judicial confession before PW.8.

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PW.12 is the panch witness for inquest and CDF. PWs.13 and 14 are

the panch witnesses for the confession of the accused. PW.15 is the

doctor who conducted post-mortem examination and issued report.

PW.16 is the Investigating Officer.

13. This is not the appeal preferred by the State and it is

preferred by the de facto complainant. Mr. Pulla Rao Yellanki,

learned counsel appearing on behalf of the appellant would submit

that there is evidence let in by the prosecution to prove the guilt of the

accused, but the trial Court ignoring the same, on assumptions and

surmises, acquitted them. The trial Court did not consider the

evidence to the effect that the accused and the deceased while

returning from the Court at Yellandu went to Bar and consumed

liquor, where the accused intentionally picked up quarrel with him.

Accused No.2 caught hold of the deceased firmly, accused No.1 took

a sharp edge stone and hit on his fore-head, caused bleeding injuries.

Thereafter both the accused looped a wire around the neck of the

deceased and strangulated him leading to death. The trial Court gave

a finding that the accused were not found guilty of the aforesaid

offence. Though, there is no direct evidence/eye-witnesses,

conviction can be recorded relying on circumstantial evidence if the

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circumstances are formed into a complete chain. Therefore, the

finding of the trial Court in acquitting the accused persons is liable to

be set aside.

14. On the other hand, Mr. M.V. Hanumatha Rao, learned

counsel for the accused, would contend that there is no direct evidence

to prove the guilt of the accused persons including medical evidence.

The prosecution failed to prove cogent and convincing evidence to

prove the guilt of the accused persons. Therefore, the trial Court was

right in recording a finding to the effect that the accused were not

found guilty of the aforesaid offence.

15. In view of the aforesaid rival submissions, when we

analyze the entire evidence on record, it is clear that PW.1 is not a

direct witness and he is only a circumstantial witness. In the cross-

examination, he admits that in the complaint it is mentioned that the

deceased might have killed by anybody for any reason and that on

suspicion he lodged the complaint. Further, there is no panchayat

held with regard to the illicit intimacy between the deceased and one

Vimala.

16. PW.2, a relative of the deceased and circumstantial witness,

deposed that he suspected that the accused might have killed the

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deceased since there were disputes between them about the collection

of money.

17. PW.3, wife of the deceased, deposed that she suspect that

accused Nos.1 and 2 might have killed the deceased since he had

misappropriated the interest amount and accused No.1 also suspects

that the deceased developed illicit intimacy with his concubine

Vimala.

18. PW.4 and PW.5, circumstantial witnesses, did not support

the prosecution case as he turned hostile and no incriminating material

was elicited from them. .

19. According to the prosecution, PW.7 is the eye-witness, but

he did not support the prosecution case as he turned hostile.

20. According to PW.8, before whom, according to the

prosecution, the accused persons made extra judicial confession,

deposed that on 07.06.2011, the accused persons approached him,

informed him about committing murder of the deceased and sought

his advice. On his enquiry, the accused persons confessed that the

deceased developed illicit intimacy with the concubine of accused

No.1, due to which, they killed the deceased. Then, he handed over

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the accused to the police. In the cross-examination, he admits that he

married the cousin of the deceased.

21. PWs.10 and 11, circumstantial witnesses, also turned

hostile and nothing incriminating material was elicited from them

during cross-examination by the prosecution.

22. PW.12 is one of the panch witnesses to the inquest

panchanama and he deposed about the inquest conducted by the

police over the dead body of the deceased in his presence.

23. PW.13 and PW.14 are the panch witnesses for the

confession of the accused, but they did not support the case of

prosecution.

24. PW.15 is the Medical Officer, Government Hospital,

Yellandu and he conducted autopsy over the dead body of the

deceased. According to him, the cause of the death was due to cardio

respiratory failure with asphyxia as a result of strangulation. During

cross-examination, he categorically admitted that there is no head

injury and that the deceased was not in drunken state.

25. PW.16 is the Investigating Officer deposed about the

investigation done by him.

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26. Analyzing the entire evidence on record, the trial Court

observed that there were no eye-witnesses to the incident and that the

accused attacked with stone and caused head injury which caused the

death of the deceased. It was also observed that the case of the

prosecution was on two aspects viz., i) wife of the deceased has seen

accused No.2 coming to their house and took the deceased to go to

Yellandu Court. Thus, on the last occasion the deceased was seen in

the company of the accused; and ii) accused Nos.1 and 2 and the

deceased were taken heavy liquor and quarrelling with each other,

then PW.7 had seen them and admonished them and went away. On

the first occasion, the wife of the deceased has seen that the deceased

went along with accused No.2, but what happened on the next

moment nobody knows. To give strength on the aspect of the

circumstantial witness (PW.7), he did not support the case of the

prosecution. Thus, the prosecution failed to show that accused Nos.1

and 2 took the deceased on the last occasion and being drunkard

heavily and they attempted to kill and succeeded in the said effort. If

accused Nos.1 and 2 took the deceased and got consumed liquor, the

postmortem report of the deceased which was certified by PW.15 -

Medical Officer would disclose that there is no serious/grave injury

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and the deceased was not in a drunken state. Therefore, the medical

evidence also does not give any strength to support the case of

prosecution that the deceased was heavily drunkard before he died.

27. The trial Court also observed that simply accused No.2 has

taken the deceased on the last occasion, it cannot be accepted that

accused took him and killed him without any cogent and convincing

evidence. Further, the averments of the complaint and the statements

of the material witnesses also show that they have the complaint only

on suspicion and there is no positive evidence to connect the accused

in commission of offence. Even the confession said to have made by

the accused as to the commission of offence is also doubtful since the

mediators turned hostile. By observing so, the trial Court came to the

conclusion that the prosecution failed to prove the guilt of the accused

and accordingly acquitted them.

28. Section 300 of the IPC mentions three instances if fulfilled,

shall be termed as murder. They are:

i) The act must be done with the intention to kill someone and

cause death. An intentional omission is also included here. For

example, A stabs B with a knife, with an intention to kill him. B

dies, A has committed murder;

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ii) The act is done with the intention to cause bodily injury and

such bodily injury is likely to result in death; and

iii) If the act is done having proper knowledge that it will cause

death, such an act shall be termed as murder.

Punishment under Section 302 of the IPC shall not apply if any of the

conditions mentioned above are not fulfilled. In the case on hand, the

prosecution has not fulfilled any one of the above three (03)

conditions.

29. It is settled law that though there is no direct evidence/eye

witness to any incident, conviction can be recorded basing on

circumstantial evidence, provided the circumstances relied upon by

the prosecution forms a complete chain, whereas, in the present case,

prosecution failed to prove the same. The Apex Court on several

occasions categorically held that as per criminal jurisprudence, let

hundred culprits can escape, but one innocent should not be punished.

Benefit of doubt should always be given to the accused.

30. In Jafarudheen v. State of Kerala 1, the Apex Court held

as under:

. 2022 SCC Online SC 495

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"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

31. The Apex Court reiterated the aforesaid principle in Ravi

Sharma v. State (Government of N.C.T. of Delhi) 2.

32. In Harbans Singh v. State of Punjab 3, the Apex Court

held as under:

" In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the

. (2022) 8 SCC 536

. AIR 1962 SC 439

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view that unless such reasons are present an appeal court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. State [1952 SCR 194]; Ajmer Singh v. State of Punjab [(1952) 2 SCC 709 : 1953 SCR 418]; Puran v. State of Punjab [(1952) 2 SCC 454 : AIR (1953) SC 459] ). The use of the words "compelling reasons"

embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. State of Madhya Pradesh, Criminal Appeal No. 178 of 1959); Ashrafkha Haibatkha Pathan v. State of Bombay, Criminal Appeal No. 38 of 1960).

9. It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the court did

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not in any way try to curtail the power bestowed on appellate courts under Section 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the fact that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the court was anxious to impress on the appellant courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this Court on "compelling reasons". But, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the Rule that in deciding appeals against acquittal the court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the

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guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."

33. In Champaben Govindbhai v. Popatbhai Manilal 4, the

Apex Court held as under:

"12. It is well settled that in an appeal against acquittal the appellate court does not reverse the finding of acquittal if the court while granting acquittal has taken a reasonable or a possible view on the evidence and materials on record. Law is equally well settled that if the view taken by the court granting acquittal is perverse or shocks the conscience of the higher court, the finding of acquittal can be reversed.

13. In the instant case, the High Court as the first appellate court has a duty to consider in detail the material on record and also should appreciate the evidence very carefully before affirming the order of acquittal given by the trial court.

14. The counsel for the respondents referred to the decision of this Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] to put forward the argument that an appellate court must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of

. (2009) 13 SCC 662

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innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having been acquitted, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

5. In this connection we may refer to the principles summarised in para 42 at SCC p. 432 of the judgment in Chandrappa case and they are extracted:

"42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal.

Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to

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review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

Also, if two reasonable views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court it ought not to be disturbed by the appellate court (para 44)."

34. As discussed supra, the trial Court on consideration of the

entire evidence, both oral and documentary, gave a finding that the

prosecution failed to prove guilt of the accused. It is a reasoned

judgment and well-founded.

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35. In view of the aforesaid discussion, we find that no

evidence was let in by the prosecution against the accused persons in

commission of the aforesaid offence. We are of the opinion that the

trial Court was justified in coming to a conclusion that the prosecution

failed to establish the charge for the offence under Section - 302 read

with 34 IPC against the accused persons and thereby recording a

finding that the accused persons were not found guilty of the said