Telangana High Court

Mangala Achyut Afzalparkar vs The State Of A.P on 31 October, 2023

Bench: K.Lakshman, P.Sree Sudha

            HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
           HON'BLE SMT. JUSTICE P. SREE SUDHA

            CRIMINAL APPEAL No.1328 OF 2012
                         AND
         CRIMINAL REVISION CASE No.1014 OF 2018

COMMON JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)

      The State filed the present Criminal Appeal challenging

judgment dated 15.09.2010 passed by learned VII Additional

Metropolitan Sessions Judge, Hyderabad in Sessions CaseNo.271 of

2009 acquitting the accused for the offences under Section - 302 of

IPC and Section - 25 (1B) (b) read with 27 of the Arms Act, 1959,

while de facto complainant filed the aforesaid revision against very

same judgment acquitting the accused.

      2. The sole respondent in Crl.A. No.1328 of 2012 is arraigned

as respondent No.2 in Crl.R.C. No.1014 of 2018. The petitioner in

Crl.R.C. is the de facto complainant and wife of the deceased. For the

sake of convenience, the parties as arrayed before the trial Court in

S.C. No.271 of 2009 will be referred hereinafter as the parties herein.

3. The case of the prosecution is as under:

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i) The deceased - Achyut Afzalpurkar was working as Clerk in

Reserve Bank of India, Hyderabad, and he is the husband of the de

facto complainant - Smt. Mangala Achyut Afzalpurkar. Both of them

were leading happy marital life and were residing at H.No.3-4-179,

Lingampally, Kachiguda, Hyderabad, but they have no issues;

ii) The deceased used to give hand loans to the needy persons.

In the said manner, he gave hand loan of Rs.30,000/- (Rupees Thirty

Thousand Only) to PW.4 - Mohd. Younus, a construction material

supplier.

iii) In the said business transactions, PW.4 became friend of the

accused - Syed Abdul Razak Shakeel @ Shakeel and introduced the

accused to the deceased about three (03) years ago. Since then, the

accused used to visit the house of the deceased now and then.

iv) As the accused fell in debts and badly in need of money, he

requested the deceased to advance loan of Rs.15,000/- (Rupees Fifteen

Thousand Only) to him, for which the deceased promised to pay him

the said amount if he could arrange re-payment of loan amount of

Rs.30,000/- from PW.4.

v) Accordingly, on 02.02.2003, the accused again visited the

house of the deceased at about 9.00 P.M. armed with sword concealed

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in his bag with biryani pocket. The accused had biryani and the

deceased had his food separately. The accused asked the deceased to

give money first before going to the house of PW.4, for which the

deceased refused. Thereupon, the accused got annoyed, took out the

sword concealed in his bag and stabbed on abdomen and face of the

deceased with an intention to kill him and knowing fully-well that the

injuries could cause the death of the deceased. As a result of which,

the deceased sustained severe bleeding injuries, shouted loudly stating

'Shakeel stabbed me' and fell unconscious. Hearing the cries of the

deceased, the de facto complainant - PW.1 rushed to the scene, found

her husband with injuries and the accused running away from the

house. She chased him and tried to apprehend the accused and

shouting for help to catch the accused, but the accused fled away.

vi) PW.1 went to the house of the brother of the deceased

(PW.2) and informed him and later PWs.1 and 2 and LW.3 came to

the house of the deceased and the deceased was shifted to Osmania

General Hospital, Hyderabad for treatment, where the duty doctor

declared him as brought dead.

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

vii) The accused failed to produce any valid license as required

under the provisions of the Arms Act for possession the sword used in

commission of offence.

(vii) The police registered a case in Crime No.44 of 2003

under Section 302 IPC and investigated into the matter.

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

sheet against accused for the offences punishable under Section - 302

IPC and Section - 25 (1B) (b) read with 27 of the Arms Act and

numbered it as P.R.C. No.25 of 2003. After appearance of the

accused and supplying necessary copies as required under Section -

207 of Cr.P.C., the case was committed to the Court of Sessions which

was taken on file vide S.C. No.271 of 2009 for the said offences.

5. The trial Court framed charge under Section - 302 IPC and

Section - 25 (1B) (b) read with 27 of the Arms Act against the

accused. The accused denied the charges and pleaded not guilty and

prayed for trial.

6. During trial, the prosecution has examined as many as 12

witness viz., PWs.1 to 12 and marked the documents as Exs.P1 to P27.

MO.1 - Brown colour single shoe size No.9 was also exhibited during

the course of trial. The accused did not adduce any evidence.

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

7. After completion of trial and on appreciation of evidence,

both oral and documentary, the trial Court found the accused not

guilty of the aforesaid charges framed against him.

8. Feeling aggrieved by the said acquittal, the State preferred

the aforesaid appeal while the de facto complainant filed the aforesaid

revision.

9. Heard Mr. T.V. Ramana Rao, learned Additional Public

Prosecutor appearing for the appellant in Crl.A. No.1328 of 2012 and

Mr. A. Bhaskara Chary, learned counsel for the petitioner in

Crl.R.C.No.1014 of 2018 and Mr. T. Pradyumna Kumar, learned

senior counsel appearing for respondent - accused.

10. Learned Additional Public Prosecutor would submit that

the trial Court failed to see the evidence of PW.2 as the same

corroborates with the evidence of PW.1 and the doctor also stated that

the deceased died due to stab injury over abdomen. Further PW.1 did

not have any enmity to implicate the accused in a false case. Without

considering various aspects, the trial Court acquitted the accused

person and, therefore, the same has to be set aside.

11. Mr. A. Bhaskara Chary, learned counsel for the de facto

complainant, who filed Crl.R.C. No.1014 of 2018 against the

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acquittal, would contend that the prosecution could prove the guilt of

the accused through the evidence of PW.1 as she heard her husband

shouting that the accused stabbed him and also observed that the

accused was running away from the house. The trial Court having

considered the evidence of PW.1, acquitted the accused basing on

surmises. Without considering all the said aspects, the trial Court

erred in acquitting the accused.

12. Mr. T. Pradyumna Kumar Reddy, learned Senior Counsel

appearing on behalf of the accused, would contend that the trial Court

having considered the entire material, both oral and documentary

evidence, held that the prosecution failed to prove the guilt of the

accused and accordingly acquitted him. Thus, there is no error in it

and as such, the same is liable to be up held.

13. In view above, the only issue that falls for consideration by

this Court is:

Whether the finding of the trial Court acquitting the accused for the offences under Section - 302 of IPC and Section - 25 (1B) (b) read with 27 of the Arms Act, 1959 is sustainable, both on facts and in law?

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

FINDING OF THE COURT:

14. PW.1 is the wife of the deceased; PW.2 is the elder brother

of the deceased, PW.3 is immediate neighbor of the deceased, while

PW.4 is a businessman, who has taken loan from the deceased on six

(06) occasions. PW.5 is the watchman of Chegur Apartments,

Kachiguda and PW.6 is the owner of Special Laundry situated at

Mehdipatnam.

15. PW.11 - Dr. K. Janardhan, who conducted autopsy over the

dead body of the deceased on 03.02.2003 between 11.40 A.M. and

0100 P.M., opined that the cause of death was due to stab injury over

abdomen and approximate time of death was about 1200 hours prior

to conducting postmortem examination. The injuries sustained by the

deceased were not accidental nor can be suicidal.

16. The evidence of PW.1 also discloses that someone stabbed

her husband. Thus, the evidence of PW.1 and 11 and also Ex.P19-

PME report prove that the deceased died due to stab injury over the

abdomen which was homicidal in nature.

17. In the present case, there were no eye-witnesses to the

incident. Therefore, the entire case rests on circumstantial evidence.

The circumstances on which the prosecution relied upon are that:

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i) the accused visited the house of the deceased on 02.02.2003

and asked him for a loan of Rs.15,000/-;

ii) the deceased refused to give him the loan amount and first

asked him to arrange repayment of loan amount of

Rs.30,000/- advanced to his friend, Mohd. Younus;

iii) the accused developed grouse on the deceased for not

providing money on loan;

iv) the wife of the deceased heard her husband shouting that the

accused stabbed him and she observed that he was running

away from the house;

v) the police seized a receipt issued by Special Electric Dry

Cleaners from the possession of the accused;

vi) the police seized white colour jeans pant of the accused with

blood stains from the said Dry Cleaners; and

vii) the police seized a sword used in commission of offence

from the house of the accused which was concealed in a bag

at his instance.

18. The above first three circumstances are in relation to

motive aspect of the accused in commission of offence. In order to

prove motive, the prosecution relied upon the evidence of PW.1 and

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PW.4 and Exs.P1 and P3. The trial Court discussed about the

evidence of PWs.1 and 4 and came to a conclusion that their evidence

did not disclose that the accused asked the deceased for loan of

Rs.15,000/- or that the deceased refused to give him the loan amount

and asked him to arrange for repayment of the loan of Rs.30,000/-

advance to Mohd. Younus. Ex.P3 discloses that an amount of

Rs.30,000/- was given by the deceased to PW.4. Nothing more could

be inferred from it as there was no evidence more than that.

Therefore, the trial Court gave a finding that the prosecution failed to

prove the motive part against the accused in commission of the

aforesaid offence.

19. Now, coming to the fourth circumstance, the prosecution

relied upon the evidence of PW.1 and Ex.P1. The trial Court referring

to the evidence of PW.1 observed that PW.1 stated in Ex.P1 that

'suddenly her husband shouted that Shakeel (accused) was beating

and stabbing him with knife' and on that she came out from the bed

room to the drawing room and found that the accused was running

away from the house. She chased him and shouted for help but he

escaped. The observation of PW.1 that the accused stabbing her

husband with a knife on his stomach and jaw was elicited as a material

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

omission which was not stated by the witness either in Ex.P1 or in her

statement recorded under Section - 161 of Cr.P.C. She admitted that

she has stated it for the first time before the trial Court. Observing so,

the trial Court held that the evidence of PW.1 as an eye-witness is a

material omission which cannot be relied upon.

20. The trial Court also held that Ex.P1 was lodged on

02.02.2003 at 23.05 hours and FIR was sent to the Magistrate Court

concerned on 03.02.2003 at 5.00 A.M. whereas, the incident occurred

around 9.30 P.M. as per FIR. The contention of learned counsel for

the accused was that there was a delay in lodging the FIR though

Kachiguda Police Station is within a walkable distance from the house

of PW.1. But, she took two hours in lodging the FIR. FIR reached the

Magistrate next day morning. FIR was not even registered at 11.00

P.M., but was registered subsequently after consultation by PW.1 with

others and a false case was fabricated against the accused. FIR was

brought into existence during the investigation and the same could not

be considered as FIR. But, PW.1 explained reasons for the delay

caused in lodging the FIR stating that she came inside and observed

her husband in a pool of blood and that he became unconscious.

Then, she went to the house of her brother-in-law at Barkatpura,

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

informed him and along with him and his son returned to the house

and informed Kachiguda Police through telephone. The police shifted

her husband to Osmania General Hospital, where the doctor examined

her husband and informed that he was dead. Then, she went to the

Kachiguda and lodged Ex.P1 report. Thus, PW.1 explained the delay

in lodging Ex.P1 report, which is plausible and reasonable.

21. PW.1 did not have any enmity with the accused to

implicate him in a false case. PW.2 also stated that on 02.02.2003

around 9.30 p.m. his sister-in-law came to his house in agitated state

of mind and informed him that his younger brother Achyut was

stabbed by one Shakeel who came to their residence about an hour

back. Thus, his evidence corroborated with the evidence of PW.1

with regard to the time and manner of incident stated by PW.1. PW.2

did not have prior acquaintance with the accused. Therefore, it cannot

be said that PW.1 and PW.2 consulted with each other and implicated

the accused in the present case. Further, no motives can be attributed

to the police for non-sending FIR immediately to the Magistrate

concerned.

22. Referring to the aforesaid evidence apart from the evidence

of PW.3, the trial Court held that the prosecution proved through the

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

evidence of PW.1 that she heard the husband shouting that the accused

stabbed him and she observed the accused running away from the

house.

23. Now, coming to the fifth and seventh circumstances, the

prosecution examined PW.9, the panch witness for the confession-

cum-seizure panchanama of the accused. But, PW.9 turned hostile

and did not support the case of prosecution. He stated that the police

obtained his signatures on white papers in the police station and he

had not seen the accused. Nothing was seized in his presence. He

denied the seizure of Dry Cleaners Receipt and the blood stained

Talwar and Rexin bag in his presence and that the police also took

him to the Dry Cleaners Shop and seized the white colour jeans pant

of the accused with blood stained in his presence. Thus, the

prosecution failed to prove the seizure of MOs at the instance of the

accused by independent evidence.

24. As far as sixth circumstance is concerned, the trial Court

referred the evidence of PW.6 to the effect that PW.6 was having a

laundry shop by name Special Laundry at Mehdipatnam and that

about 8 or 9 years back, police came to his shop shown a receipt

issued by their shop. However, he asked for the clothes. He handed

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

over those clothes, pant and shirt without ironing. He identified Ex.P6

as the receipt issued by their shop. He denied that on 03.02.2003 the

accused came to his shop and handed over those clothes to him. He

stated that he could not say whether there were any blood stains on the

clothes. He stated that the clothes were washed by them, by the time

he handed over them to police. Ex.P6 receipt was in a torn condition.

The name of the shop was also not visible. PW.12 stated that he sent

the blood swabs, clothes of the deceased, jeans pant of the accused,

blood stained sword to APFSL through Court. The report issued by

FSL was also marked through this witness as Ex.P26, which discloses

that the blood was detected on item Nos.1 and 3 to 8, which included

the white colour jeans pant as item No.6 and sword marked under item

No.7. But, blood group of blood stains on the said items could not be

determined.

25. Referring the said evidence, the trial Court came to a

conclusion that the prosecution failed to prove that item No.6 - white

colour jeans pant belonged to the accused and it was worn by him on

the day of incident. It was handed over by him to the Dry Cleaners for

the purpose of washing and was seized at his instance from the Dry

Cleaners Shop. Thus, the prosecution failed to prove that the injuries

KL,J & PSS,J Crl.A.No.1328/2012 & Crl.R.C. No.1014/2018

of the deceased were caused by a sword and that the accused used the

sword for committing the offence and that he concealed it in a bag and

it was seized at his instance from his house.

26. The trial Court analyzing the entire evidence observed that

the prosecution failed to prove all other circumstances except one.

Hence, the prosecution could only raise a strong suspicion against the

accused. But, in criminal cases, suspicion however strong, cannot be a

substitute for legal proof and still there was a long distance to be

travelled by the prosecution to prove the case from 'may be true' to

'must be true'. Thus, there is any amount of doubt as to the

involvement of the accused in commission of offence. The trial

Court also observed that the prosecution failed to adduce any evidence

to show that the sword was seized from the possession of the accused

and it was used by the accused in commission of offence. Further, the

said sword was also not marked by the prosecution. The Investigating

Officer failed to produce the sword and other material objects before

the Court after examination by the FSL. Therefore, the prosecution

failed to produce the sword and its measurements and that it was

possessed by the accused in violation of Arms Act and the Rules

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framed thereunder and that it was used by the accused in commission

of offence.

27. Considering the entire evidence, both oral and documentary

and other circumstances, the trial Court gave a finding that the

prosecution failed to prove the case against the accused and

accordingly acquitted him of the aforesaid charges.

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

as under:

"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."

. 2022 SCC Online SC 495

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29. The Apex Court reiterated the aforesaid principle in Ravi

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

30. 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 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

. (2022) 8 SCC 536

. AIR 1962 SC 439

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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 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.

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

31. 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

. (2009) 13 SCC 662

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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 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.

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(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 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

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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)."

32. In the light of the above said legal position, coming to the

facts of the case on hand, as discussed above, the prosecution failed to

prove that item No.6 - white colour jeans pant belonged to the accused

and it was worn by him on the day of incident and the same was

handed over by him to the Dry Cleaners for the purpose of washing

and that it was seized at his instance from the said Dry Cleaners Shop.

The prosecution also failed to adduce any evidence to show that the

sword was seized from the possession of the accused and it was used

by him in commission of offence. Further, the said sword was also

not marked as a material object by the prosecution. Thus, said

findings of the trial Court are on consideration of the entire evidence,

both oral and documentary. The same are supported by sound reasons.