Nakka Jamuna, Adilabad Dt., vs The State Of Telanagana, Rep Pp.,
2023 Latest Caselaw 4356 Tel

Telangana High Court

Nakka Jamuna, Adilabad Dt., vs The State Of Telanagana, Rep Pp., on 20 December, 2023

Author: P.Sree Sudha

Bench: K.Lakshman, P.Sree Sudha

        THE HONOURABLE SRI JUSTICE K.LAKSHMAN
                                     AND
      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

              CRIMINAL APPEAL No.1022 of 2016

JUDGMENT:

(per Hon'ble Smt. Justice P.Sree Sudha)

This appeal is filed against the Judgment dated

07.10.2015 in S.C.No.319 of 2014, passed by the learned

Principal Sessions Judge, Adilabad.

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

Vengawaipet village gave complaint under Ex.P1 on 27.01.2014,

stating that on 26.01.2014 at about 10:00 PM, an unknown

female person attacked their villager Udutha Bhumavva with a

sickle over right side of her head, neck and throat and as a

result she sustained severe bleeding injuries. On seeing her

condition, he along with the sons of the deceased namely

Udutha Ganga Kishan and Udutha Ramu and others shifted her

to Government Hospital, Nirmal for treatment, where she

succumbed to injuries while undergoing treatment on

27.01.2014 at about 12:00 hours. He did not know the reasons

for the murder and thus requested the Police to take necessary

action. Complaint was received by the Police on 27.01.2014 at

about 12:15 AM and registered a case in Cr.No.3 of 2014 under

Section 302 of IPC. However, in Telugu complaint given by him,

it was specifically mentioned that some unknown persons

hacked the deceased on the right side of the neck and she

sustained bleeding injuries, as such he along with her sons took

her to hospital and she died while she was undergoing

treatment, but in the translation it was stated that some

unknown female person attacked the villager.

3. To prove the guilt of the accused, prosecution examined

as many as 17 witnesses i.e., P.Ws.1 to 17 and marked Exs.P1

to P24 and also marked M.Os.1 to 14. The trial Court after

considering the oral and documentary evidence on record, found

accused guilty and convicted her under Section 235(2) of Cr.P.C

and sentenced her to suffer life imprisonment and to pay a fine

of Rs.1,000/-, in default to suffer S.I for one month for the

offence punishable under Section 302 of IPC. She was also

sentenced to suffer R.I for three years and to pay a fine of

Rs.1,000/-, in default to suffer S.I for one month for the offence

punishable under Section 380 of IPC and further sentenced to

undergo R.I for three years and to pay a fine of Rs.1,000/-, in

default to suffer S.I for one month for the offence punishable

under Section 452 of IPC. All the sentences shall run

concurrently. Aggrieved by the said Judgment, accused

preferred the present appeal.

4. The learned Counsel for the appellant/accused mainly

contended that the place of alleged quarrel and the scene of

offence is said to be far away from each other. P.Ws.1 and 2

have not seen the alleged crime and there are no direct

witnesses to the alleged incident. The evidence of chance

witnesses P.Ws.1 and 2 was not appreciated properly. There is

no evidence that deceased was having Rs.1,000/- at the time of

her death. The entire case of the prosecution is ill founded and

ill logical. P.W.5 stated that his house is at a distance of 100

meters from the house of P.W.1. He came to know about the

incident after two days. The statements of P.Ws.1 to 3 were

recorded mechanically. The trial Court erred in considering

Exs.P5, P6 and P9. The recovery of M.Os.1 to 14 is in violation

of Section 27 of the Indian Evidence Act. M.O.1 was recovered

from an open place which is accessible by one and all. The

alleged confession and seizure were hit by Section 25, 26 and

27 of the Indian Evidence Act. The confession made to the third

party while in the custody of a Police Officer is inadmissible in

evidence. The trial Court erred in convicting the accused and

the sentence is illegal. Therefore, requested the Court to set

aside the Judgment of the trial Court.

5. P.W.1 reiterated the contents of the complaint in his

evidence. He stated that P.Ws.2 and 3 informed him that

deceased Udutha Bhumavva was attacked by somebody and she

was in her house with bleeding injuries over the head and neck.

He called to the sons of the deceased and shifted her to the

hospital on the same night and also gave complaint under

Ex.P1. P.Ws.2 and 3 are neighbors. P.W.2 stated that he went to

the house of his brother-in-law on 26.01.2014, which is at a

distance of 150 yards to the house of the deceased. On

26.01.2014 at about 10:00 PM, he went to the open place

behind the house of the deceased for passing urine, at that time

he heard hue and cries of the deceased and then he approached

P.W.3 and informed to him. Both of them went to the house of

the deceased and peeped into the house. At that time, one

woman came out of the house and looked both sides and

started running. She did not reply for their enquiry and they

have seen her in the street light. He also stated that he can

identify her. They informed the same to the sons of the deceased

and also to P.W.1. In the Cross-examination he stated that he

had seen the accused 1½ or 2 months after the incident at Sub

Jail. The house of his brother-in-law was at a distance of 8 to 10

houses away from the scene of offence.

6. P.W.3 stated that P.W.2 came to him after hearing cries of

the deceased and both of them went to the house of the

deceased and they have seen a woman opening the main door of

the house of the deceased and then she ran away. He stated

that they noticed the woman in the street light. He also stated

that he can also identify that woman. They went into the house

of the deceased and found her with bleeding injuries and also

noticed blood stained sickle and informed the same to the sons

of the deceased and immediately shifted her to the hospital. If at

all P.Ws.2 and 3 informed that unknown woman hacked the

deceased and ran away in front of them, P.W.1 might have

subsequently mentioned the same in his complaint under

Ex.P1, but in the complaint, he stated that somebody hacked

the deceased with sickle. So also, P.Ws.2 and 3 stated that they

have seen her in the street light, there was no street light as per

the scene of offence Panchanama, even Inspector of Police

stated that he had not shown the street light in the scene of

offence Panchanama. The said offence was committed after

10:00 PM. They did not have prior acquaintance with the

accused. When it was dark, how they have noticed her was not

stated by them. So also, as per the confessional Panchanama,

one spear was recovered at the instance of the accused, but

P.Ws.2 and 3 have not stated that she was carrying spear in her

hand.

7. As it is a case of circumstantial evidence, prosecution also

examined some of the witnesses who have seen the accused just

prior to the incident and after the incident. The deceased is

having two sons and one daughter. They were also residing in

the same village, but in different houses separately and the

deceased was residing alone in a separate house. P.W.4 is the

son of the deceased. M.Os.1 and 2 i.e., sickle and pair of

Chappals were recovered in his presence. In his

Cross-examination, he stated that his mother was in the habit

of consuming white Taddy. Whenever, his mother attends the

agricultural work, white taddy will be supplied to her by

farmers, apart from the payment of cooli. He subsequently

mentioned that he had not observed any woman living with her

and every day they were going to her house to enquire about her

welfare. He clearly stated that he did not state before the Police

that P.W.3 came to his house and informed that one woman

attacked his mother and caused injuries and also stated that

Police examined him one week after the incident.

8. P.W.5 is the neighbour, she stated that she went to the

house of the deceased prior to the incident and seen the

accused present in the house at about 8 P.M. Later, at about

10:00 or 11:00 PM she received information that deceased was

hacked and died at about 12:00 AM mid night. She also

identified the accused in the Test Identification Parade. In the

Cross-examination, she stated that as it was Sunday, she

consumed liquor and went to bed. She had seen the accused on

the date of occurrence and again in the Court on 04.06.2015.

P.W.6 was working as Sunkari. As he has to attend the duty at

Tahsildar Office, he was waiting for the auto near the house of

the deceased. At that time, from the house of the deceased, one

woman came out. When they enquired, she informed that she

belongs to the deceased and she came for her and she went

along with the deceased into her house. Though he stated that

he can identify the woman, he stated that she was not present

in the Court hall. In the Cross-examination, it was suggested to

him that he did not state before Police that he made enquiry

with the accused and she informed that she belongs to Nirmal,

he had not seen the accused earlier and police have shown her

today in the Court, but he denied it.

9. P.W.7 informed that on 26.01.2014, deceased came to his

shop and purchased four packets of white taddy and paid

Rs.100/- and later he came to know that somebody killed her.

P.W.8 was running a belt shop, he stated that on the date of

incident, at about 8:30 PM deceased came to his shop and

purchased half quarter bottle of Old Tavern Whisky and paid

Rs.35/-. At about 10:00 PM, he came to know that some

unknown person killed her. P.W.9 and L.W.17 Swamy were

acted as Panch witnesses for Ex.P2 and for rough sketch

prepared under Ex.P3 and M.Os.1 to 8 were seized in their

presence. P.W.10 is the Panch witness for inquest panchanama

under Ex.P4. P.W.11 was acted as Panch witness for

confessional panchanama of the accused. He stated that

accused produced M.O.9 Barise and M.O.10 Saree which was

on her body at the time of commission of offence. M.O.11 pair of

Chappal and M.O.12 Rs.1,000/- were seized in his presence.

Ex.P5 is the confession and recovery panchanama and it bears

his signature. P.W.12 is the C.I of Police. He received Ex.P1 and

registered the same in Cr.No.3 of 2014 under Section 302 of IPC

and issued FIR. He arrested the accused on 18.02.2014 and

after conducting entire investigation, filed Charge sheet. In the

Cross-examination, he clearly stated that he has not depicted

electric pole present in front of the house of the deceased in

rough sketch. He also stated that he made efforts to secure

finger prints of the accused on the sickle and from the scene of

offence, but they were not available. It was suggested to him

that without conducting investigation, he falsely implicated the

accused, but he denied it.

10. P.W.13 is the doctor, who conducted autopsy over the

dead body of the deceased. He found as many as 20 injuries on

the dead body of the deceased. Ex.P11 is the report of RFSL. He

gave final opinion under Ex.P14 stating that deceased died due

to cardio respiratory arrest due to polydraum and hypo volemic

shock. In the Cross-examination, he stated that injuries are

possible with sharp object, but he cannot say definitely whether

they can be caused by a specific weapon. P.W.14 is another

village Sunkari. While he was going along with P.W.6, he had

seen an unknown woman, when they enquire, she stated that

she came to the house of the deceased and at the same time

deceased came with a water pot and both of them went together.

On the next day he came to know about the death of the

deceased. P.W.15 is the Junior Civil Judge who conducted Test

Identification Parade and recorded the proceedings on

17.04.2014 under Ex.P16. Ex.P15 is the requisition received by

him, he admitted that one Rasa Pothanna stated before him

that he saw the accused in Nirmal Police Station and he also

stated that Thokala Laxmi and Mettapalli Ravi also witnessed

her. P.W.16 registered the case in Crime No.03 of 2014 under

Section 302 of IPC and issued FIR under Ex.P17and forwarded

Exs.P1 to P17 to the Court. He conducted investigation and

filed charge sheet after investigation. P.W.17 is the

photographer and he took the photographs of the dead body of

the deceased under Exs.P6 to P9.

11. The trial Court stated that there was consistent version of

P.Ws.2 to 8 and 14 regarding the presence of accused at the

scene of offence. The accused herself confessed about the

motive at her instance, Rs.1,000 recovered from the waist pouch

of the deceased and the same was as M.O.12. Except the

accused there is no possibility for any other person to commit

the offence and that there is complete chain of evidence not to

leave any reasonable ground for the conclusion regarding the

innocence of the accused and accordingly convicted the

accused.

12. Motive for the offence as per the prosecution is that

accused made friendship with the deceased and she was going

to her house, consume toddy and she used to take male

members to the house of the deceased for satisfying her lust by

and also paying Rs.100/- or Rs.200/- to the deceased. At that

time, she found that deceased was having huge amounts in her

waist pouch. With an intention to steal the said amount on that

particular day, she went to the house of the deceased and

hacked her with spear and sickle and taken the amount of

Rs.1,000/-.

13. The learned Counsel for the accused raised the following

contentions:

I. Motive is not proved II. Accused identification before the Court shall not be acted upon.

III. Abnormal Delay in conducting the Test identification Parade (TIP).

IV. Not proper to act upon the testimonies of Chance witnesses.

V. No material to show that accused was seen in the street light.

VI. Confession and recovery is not proved VII. FIR is devoid of material facts and it is delayed one.

VIII. Scene of offence report and rough sketch are fabricated.

IX. Missing links in the chain of circumstances.

As per the prosecution, accused killed the deceased to commit

the theft of Rs.1,000/- i.e., M.O.12 from the possession of the

deceased, but there is no evidence to show that deceased was

having Rs.1,000/- as on the date of incident. There is no

evidence by the prosecution to show that the amount of

Rs.1,000/- belongs to the deceased, even the son of the

deceased did not state anything regarding the said amount. The

trial Court erroneously relied upon the testimony of the Panch

witnesses for the confession and thus motive is not proved. As

there is no independent evidence to show that deceased was in

possession of Rs.1,000/-, recovery of amount from the accused

is hit by Sections 25 and 27 of the Indian Evidence Act.

Moreover, the said amount was recovered from the accused

after a delay of three months from the date of incident, as such

motive is not established by the prosecution.

14. Admittedly, it is a case of circumstantial evidence, as

such motive assumes more importance. The motive is the

crucial link in the chain of circumstances, as such in the

absence of the motive, case of the prosecution must be

discarded. The case of the prosecution is that accused was last

seen with the company of the deceased as per the evidence of

P.Ws2, 3, 5, 6 and 14. P.Ws.2 and 3 stated that they have seen

the accused at about 10:00 PM, whereas P.Ws.6 and 14 stated

that they have seen her at about 7:00 PM and P.W.5 stated that

she saw her at about 8:00 PM. All of them have no previous

acquaintance with the accused and they have seen the accused

in the street light except P.W.5. When P.W.5 went to the house

of the deceased, she found the accused in the house. All of them

have seen the accused for the first time, but identified the

accused in the Test Identification Parade. P.W.15 Junior Civil

Judge, who conducted Test Identification Parade stated that

accused informed him that Police had kept her in their custody

for about 15 days and showed her to the witnesses at Vengawai

village. He also admitted that P.W.6 informed to him that he

along with P.Ws.3 and 5 have seen the accused in the Nirmal

Police Station before Test Identification Parade. P.W.6 to 14

could not identify the culprit. The offence took place on

26.01.2014, request for conducting Test Identification Parade

was done on 04.04.2014 and it was done on 17.04.2014 and

thus there was a delay of three months in conducting the Test

Identification Parade, as such it cannot be relied upon.

15. He further contended that P.Ws.2, 3, 5, 6 and 14 are the

chance witnesses and their presence at the relevant time is

artificial, there is no proper explanation for their presence and

their conduct is highly doubtful and thus their evidence cannot

be relied upon. P.W.12 is not the native of the crime village. He

came to his brother-in-law's house which is 10 houses away

from the scene and he heard the hues and cries and his

conduct his abnormal. Though they stated that they informed to

the Sarpanch and to the sons of the deceased that a woman

came out of the house and ran away, Sarpanch had not

mentioned the same in his complaint under Ex.P1. It was also

argued that presence of P.Ws.6 to 14 at relevant time is

doubtful, as there is no bus stand or auto stand at the place

where they were standing and both of them are Village Revenue

Officers. The evidence of chance witnesses is to be scrutinized

very cautiously and their presence at the place of occurrence at

the time of incident was not established properly. P.Ws.2 and 3

specifically stated that they have seen the accused during night

hours under the street light, but there was no street light in

that locality and it was not depicted in the rough sketch and all

the witnesses have no prior acquaintance with the accused, as

such they have seen the accused under the street light is not

believable.

16. The case of the prosecution is that the son of the

deceased had seen a pair of female chappal outside the house of

the deceased and they were also seized under M.O.2, but the

Police seized another pair of Chappal from the possession of the

accused under Ex.B5. There is no evidence to show that

Chappal seized outside the house of the deceased and Chappal

seized from accused are of the same size and it was not

established that both chappals belongs to the accused. The

learned Counsel for the accused contended that deceased was

shifted to the hospital three hours prior to the death, but

statement was not recorded for the reasons best known to the

prosecution. The person who carried to the hospital and the

doctor who treated her were not examined. Though the sons of

the deceased visiting the house of the deceased, they have no

idea about the presence of accused in the house of the deceased

at any point of time.

17. The Hon'ble Apex Court in the case of Ashok Kumar

Chatterjee Vs. State of Madya Pradesh 1 held as follows:

"When a case rests upon circumstantial evidence such evidence must satisfy the following tests:

1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established.

2) Those circumstances should be of a definite tendency unerringly towards guilt of the accused.

3) 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 no one else, and

4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt

AIR 1989 SCC 1890

of the accused but should be inconsistent with his innocence.

18. In this case, accused stated that she developed friendship

with the deceased and she was using her house to satisfy her

lust with the male members and also paying Rs.100/- or

Rs.200/- to the deceased. The motive for the offence as per the

prosecution is that accused committed theft of Rs.1,000/- from

the deceased. There is no evidence on record to show that

deceased was having huge amount, as such accused planned to

commit theft of the said amount from her possession. There are

no eye witnesses to the occurrence. None of them have seen the

accused hacking the deceased with sickle or spear. As per the

prosecution, accused went to the house of the deceased with

spear, but none of the witnesses who have seen her prior to the

incident or after the incident stated that she was having spear

in her hand. P.Ws.2 and 3 stated that when they heard hue and

cry from the house of the deceased, they went there, at that

time, one woman came out of the house and ran away, but they

have not made any efforts to caught hold of her. Later went

inside of the house and found the deceased with bleeding

injuries and also found M.Os.1 blood stained sickle. Though

they stated that deceased was hacked by an unknown woman,

it was not reflected in Ex.P1. Even P.W.4 i.e., son of the

deceased has not stated anything regarding the company of any

woman along with his mother, at any point of time. It is for the

prosecution to prove the each link in the chain of circumstance

and to complete the chain to show that accused alone

committed the offence, but there are several lapses in the

investigation. Though nexus between accused and the offence

was not established, basing on the confessional statement of the

accused and the recovery of spear and saree, which she was

wearing at the time of offence, Investigation Officer jumped into

the conclusion that she committed the murder. Though P.Ws.2

and 3 stated that they have seen a woman coming out of the

house, they have not stated that they have found blood stains

on the saree of the accused. Therefore, this Court finds that the

trial Court erred in arriving to the conclusion that accused

hacked the deceased and the said finding of the trial Court is

not on proper appreciation of the facts and is liable to be set

aside. It is for the prosecution to prove the guilt of the accused

beyond reasonable doubt. If there is any benefit of doubt, it

should be extended to the accused. Therefore, accused is not

found guilty for the offence punishable under Sections 302, 380

and 452 of IPC.

19. In the result, the Criminal Appeal is allowed. The

conviction and sentence passed by the learned Principal

Sessions Judge, Adilabad, against the appellant/accused for the

offence punishable under Section 302, 380 and 452 of IPC, by

judgment dated 07.10.2015 in S.C.No.319 of 2014, is hereby set

aside and she is acquitted under Section 235(1) of Cr.P.C for

offence under Section 302, 380 and 452 of IPC and she shall be

set at liberty forthwith, if she is not required in any other case

and the fine amount paid by her shall be refunded immediately

and her bail bonds shall stands cancelled. M.Os.1 to 14 shall be

destroyed after expiry of appeal time.

Pending miscellaneous petitions, if any, shall stand

closed.

________________________ JUSTICE K.LAKSHMAN

_________________________ JUSTICE P.SREE SUDHA DATE: 20.12.2023 tri

THE HONOURABLE SRI JUSTICE K.LAKSHMAN AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CRIMINAL APPEAL No. 1022 of 2016 (per Hon'ble Smt. Justice P.Sree Sudha)

DATE: 20.12.2023

TRI