Telangana High Court

G.Ushanna, Mahabubnagar Dt vs State Of Telangana, Rep Pp., on 1 September, 2023

Bench: K.Lakshman, K. Sujana

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


               CRIMINAL APPEAL NO.776 OF 2014

JUDGMENT: (per Hon'ble Smt Justice K.Sujana)


      Aggrieved by the judgment dated 28.01.2014 in S.C.No.670

of 2011, on the file of IX Additional Sessions Judge, Wanaparthy,

the appellant filed this appeal.      The appellant herein is the

Accused in S.C.No.670 of 2011.          By the said judgment the

appellant was convicted for the offence punishable under Section

302 IPC and sentenced to undergo rigorous imprisonment for life

and also to pay a fine of Rs.5000/- in default of payment of fine to

suffer simple imprisonment for six months. He was also sentenced

to pay a fine of Rs.1000/- in default of payment of fine, to suffer

simple imprisonment for three months for the offence punishable

under Section 379 IPC.


2.    The brief facts of the case are that the deceased-Nageshwar

Reddy and PW.1 are own brothers and PW.2 is the wife of the

deceased.   PW.1 and deceased are natives of Kalluru Village of

Veepangandla Mandal. On 15.03.2011, PW.1 collected an amount

of Rs.40,000/- for repayment of crop loan availed from Andhra

Bank, Jetprole Branch and went to Hyderabad to the house of his
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elder sister. The deceased married the daughter of PW.2.               After

handing over cash to the deceased asking him to remit the amount

in Andhra Bank, he returned back and told that he was going to

Pebbair for the seeds. The deceased informed PW.1 that he will

remit the amount on 17th. On 17.03.2011 in the evening hours

both of them went to sow angular guard seeds in the land and

after completing the work they returned to the village. PW.1 went

to the house of his friend to sleep that night. On the next day, the

deceased was not seen. PW.1 made inquiries in the village and he

was informed that from the same day, the accused was also not

seen in the village and on the previous day evening both the

deceased and accused moved together in the village and consumed

alcohol. On 21.03.2011 at about 11.00 a.m, PW.1 was informed

by PW.3-Thirupathaiah, PW.4-Shalu that they have seen the dead

body of the deceased in a dilapidated school premises in the village

of Solipur. PW.1 and other villagers went to the scene of offence,

observed the dead body of the deceased with M.O.1-stone on his

head which was found crushed.            They identified the dead body

basing on the clothes and other parts of the body and also

passbook belonging to PW.1. Later PW.1 went to the police station

and lodged a complaint basing on which Ex.P.1 complaint was

registered,   investigation   was       done   by   PW.16,   conducted

panchanama under cover of Ex.P.2 in the presence of PW.9 and
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another, collected M.O.1 stone and blood stains with the help of

cotton secured in the presence of PWs.2 to 4 and examined them,

held inquest over the dead body through PW.11 and secured the

presence of PWs.6 to 8, examined them and apprehended the

accused on 27.03.2011, interrogated him in the presence of PW.10

and another. In pursuant to the confession of the accused and

information provided, they collected the blood stained clothes of

the accused and also collected Rs.34,500/- cash denomination of

Rs.500/- under M.O.8 cover of panchanama.


3.    The prosecution case is that the accused while moving with

the deceased on the night of 17.03.2011 noticed cash of

Rs.40,000/-, developed malafide intention to commit theft of it,

accompanied the deceased to the dilapidated school premises and

when the deceased was in deep sleep under intoxication condition,

he threw M.O.1-boulder on    his head, as a result of which, the

deceased died on the spot.


4.    The learned Judicial Magistrate of First Class, after taking

cognizance of the case, committed the case to the Court of

Sessions, Mahaboobnagar.


5.    The learned IX Additional Sessions Judge, framed two

charges for the offences under Sections 302 and 379 IPC.
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6.     The prosecution examined Pws.1 to 16, got marked Exs.P.1

to P.10 and the Material objects M.Os.1 to 7 are marked.


7.     After hearing both the parties, the trial Court convicted the

appellant for the offences punishable under Sections 302 and 379

IPC.


8.     The appellant herein filed this appeal against the said

judgment stating that the judgment of the trial Court is contrary

to law, facts of the case and erroneous. The trial Court came to

the conclusion basing on its own assumptions and presumptions,

convicted the appellant and falsely came to the conclusion that the

appellant committed offence for gain of cash of Rs.40,000/-. The

trial Court ought to have seen that there is no sequence of events

established by the prosecution to prove the offence against the

appellant. The trial Court unnecessarily gave much credence to

the evidence of Pws.7, 12 and 13.    His further contention is that

the appellant was erroneously implicated in this case and without

proper appreciation of evidence, the trial Court wrongly convicted

and sentenced him.


9.     Heard Sri P.Prabhakar Reddy, learned counsel appearing for

the appellant and Sri T.V.Ramana Rao, learned Additional Public

Prosecutor appearing for the respondent-State.

KL,J &SKS,J Crl.A.No.776 of 2014

10. Learned counsel for the appellant would submit that there is

no evidence on record to prove that the death of the deceased is

homicidal. The evidence of prosecution failed to establish the

chain of circumstances and all circumstances must prove that the

accused is only responsible for the murder of the deceased.

Without there being any evidence on record to prove that the

accused was last seen with the deceased, the trial Court wrongly

convicted the appellant; that there is long gap between the last

seen and the place of offence and there are several contradictions

and omissions in the evidence of the witnesses. There is no

corroborative evidence to prove the circumstances and the

conviction is based on assumptions and presumptions. Therefore,

prayed the Court to set aside the judgment of the trial Court.

11. Per contra, learned Additional Public prosecutor submitted

that there are no infirmities in the judgment of the trial Court and

the evidence on record is sufficient to prove the guilt of the

appellant/accused and there is no need to interfere with the

judgment of the trial Court. Therefore, prayed the Court to dismiss

the appeal.

12. Now, the points that arise for consideration are :

1. Whether the death of the deceased is homicidal ?

KL,J &SKS,J Crl.A.No.776 of 2014

2. Whether the prosecution proved the guilt of the accused for the offence under Sections 379 and 302 IPC beyond all reasonable doubt ?

3. Whether the judgment of the trial Court needs any interference ?

POINT NO.1 :

13. To prove that the death of the deceased is homicidal, the

prosecution relied on the evidence of PWs.1 to 4, PW.9 and PW.14-

medical officer.

14. PW.1 is the brother of the deceased. His evidence is that the

deceased is his younger brother and PW.2 is the wife of the

deceased. On 21.03.2011 at about 10.00 or 11.00 hours, one

Thirupathaiah and Jogu Maddileti of the fishermen community

informed him that the dead body of his brother Nageshwar Reddy

was found in the school premises of Solipur village and it was

emitting foul smell. Then PW.1 and other villagers went in the

tractor of G.Krishna Reddy. After that he went to Vepangandla

police Station and gave report. They found a big stone weighing

about 4 to 5 kgs by the side of the dead body and the face of the

deceased was found crushed. He also stated that bank pass book

belonging to him was found with the dead body of the deceased.

Apart from that some papers and beedies were also found. The

clothes of the deceased were stained with blood and one Katta

Nagi Reddy informed him that on the night of 17.03.2011 his KL,J &SKS,J Crl.A.No.776 of 2014

deceased brother and accused moved together in the village

Kalluru. On 18.03.2011 he went to the house of the accused and

asked his mother as to where the accused was, she told him that

the accused went to his in-laws place and he was not seen in the

village from 18.03.2011 onwards. Hence, PW.1 suspected that the

accused might have killed his brother.

15. PW.2 is the wife of the deceased and her evidence is that on

telephonic information given by PW.1, herself, her mother and her

maternal grandmother went to the scene of offence and observed

the dead body. They also found the head of the deceased was

crushed by a stone.

16. PW.3 is a fisherman by profession and he is the person who

informed about the dead body to PW.1. His evidence is that when

he and one Jogu Maddileti were returning after fishing in the tank

at Solipuram, on the way they smelt foul smell near the School.

He went there and saw the dead body of the deceased and the

same was informed to PW.1. PW.4 evidence is on the same lines

as that of PW.3.

17. PW.9's evidence is that he along with the villagers went to

the old school premises at Solipuram to see the dead body of

Nageshwar Reddy. At that time, police people conducted

panchanama over the dead body of the deceased. There was a KL,J &SKS,J Crl.A.No.776 of 2014

boulder on the dead body with splash of blood stains at the floor,

walls and on the clothes of the dead body. PW.14 is the medical

officer who conducted autopsy over the dead body of the deceased

and his evidence is that the dead body was completely

decomposed and he found fracture of all the skull bones except

lower jaw and blood clots were present, Brain and Meninges were

completely decomposed and due to decomposition of the body he

could not find any other external injuries. He opined that the

deceased died of crush injury to the head.

18. The evidence of PWs.1 to 3 and also the panch for scene of

offence is that there is a boulder on the head of the deceased and

the evidence of medical officer is that the deceased died due to the

crush injury and he found fracture of all skull bones except lower

jaw. Ex.P.8 post-mortem report supports the evidence of PWs.1 to

3 and panch for scene of offence shows that there is a boulder on

the head of the deceased. The doctor also opines that the death

was caused due to crush injury to the skull. Therefore, the death

of the deceased can be concluded as a homicidal death.

Accordingly, Point No.1 is answered.

KL,J &SKS,J Crl.A.No.776 of 2014

POINT NOs.2 AND 3 :

19. To connect the accused with the homicidal death of the

deceased prosecution version is that the accused murdered the

deceased for gain of Rs.40,000/- and that Rs.35,000/- was

recovered from the possession of accused. Basing on the

confession which lead to recovery of Rs.35,000/-. The prosecution

alleges that the accused and deceased moved together till 8.30

p.m. To prove the same prosecution relied on the evidence of

PW.1, 6 and 8. PW.6's evidence is that as he was ill, PW.1 brought

Rs.40,000/- and asked him, if he is in need of money. Pw.6 did

not take the amount and asked PW.1 to retain. PW.1 gave the

said amount to the deceased to deposit the same in Andhra Bank

at Jetprole Branch, as he was going to Kallur. Pw.8's evidence is

that on the night of the incident, accused and deceased came to

their colony at about 8.00 or 8.30 p.m. At that time his brother-

in-law Devaiah and his son were quarreling. The deceased and

accused came to Devaiah and scolded him as to why they were

quarrelling. The deceased called five or six school going girls in

S.C.Colony and offered them Rs.500/- each to purchase clothes,

but they refused. When the girls refused to take money the

deceased tried to set fire to the currency notes stating that he was

offering money like a grandfather. Then, they interfered and KL,J &SKS,J Crl.A.No.776 of 2014

prevented him from burning the currency notes. On that the

deceased kept the money in his pocket and left that place along

with the accused. With the evidence of Pw.8 the prosecution

wants to prove the last seen theory that Pw.8 saw the deceased

and accused between 8.00 or 8.30 p.m., and left from their colony.

Whereas, the evidence of Pw.5-Patta Nagi Reddy is that on

17.03.2011 himself, deceased and Pw.1 went to the land of one

Ramachandra Reddy and they returned home at about 6.00 p.m.

After returning to home on a tractor they dispersed and went to

their respective houses. He slept in front yard of his house and at

about 10.00 p.m., the deceased came to him and asked him to

wake up, but he refused to wake up and thereafter he asked him

to leave. Accordingly, the deceased left his house and Pw.5 does

not know where the deceased went thereafter. The evidence of

Pw.5 shows that at 10.00 p.m., the deceased came to his house

alone and he has not stated anything that the accused came along

with the deceased. Therefore, the evidence of Pw.8 is no way

helpful to the prosecution to prove the last seen theory.

20. The prosecution also relied on the evidence of Pw.7. Pw.7 is

a relative of the accused and he deposed that himself, Pw.3, Lw.9-

Kanta Reddy, Raju and others were going on tractor as coolies to

Pentlavelly village and when they reached Jetprole bridge he KL,J &SKS,J Crl.A.No.776 of 2014

received a phone call from Pw.12-Thirupathaiah, who is the

husband of sister of accused stating that the accused killed

someone and committed theft of money and whether he knew the

said fact. He replied that he was not aware of the said fact. Later

he came to know that Nageshwar Reddy was murdered, whereas,

the said Thirupathaiah has not supported the case of prosecution

and he turned hostile. Therefore, the evidence of Pw.7 is not

useful to the prosecution to prove the guilt of the accused.

21. Further the circumstance relied on by the prosecution is

confession of accused leading to recovery of money. Pw.13 is the

panch for confession and recovery.

22. Pw.10's evidence is that on 27.03.2011 at about 2.30 or

3.00 p.m, police came to the house of accused. On seeing the

police, himself and other villagers went there. Pw.10 and Lw.16

asked the accused as to what happened, upon which the accused

told him that on the date of incident the deceased and himself

consumed arrack and brandy near the bore well at Anganwadi

school and after consuming the arrack and brandy, the accused

asked the deceased for going to the fields, but the deceased

refused. On seeing the currency notes with the deceased, the

accused developed greedy, both of them went to old school

premises and slept there. After two hours, the accused woke up KL,J &SKS,J Crl.A.No.776 of 2014

and threw boulder on the head of the deceased, went home and

removed his blood stained clothes and concealed them. He further

deposed that the accused took police and themselves to the

outskirts of Ayyavaripally village to the shed of one Buchanna and

brought the blood stained clothes from the cover and they also

inquired the accused that how much money was left with him.

The accused produced cash of Rs.34,500/- and the same was

seized by the police.

23. Now it is to be seen that whether this recovery basing on the

confession will connect the accused to the offence.

24. Basing on the confession, the police seized blood stained

clothes, they were sent to the FSL and the FSL report under

Ex.P.10 shows that they received item Nos.1 to 6 and examined

them. The human blood is detected on item Nos.1 to 5. The blood

group could not be determined on item Nos.1 to 5 and blood is not

detected on item No.6.

25. Though Pw.10 deposed that accused shown blood stained

clothes from the cover, no description was given by him, whereas,

M.O.6 was white colour T-shirt, M.O.7 was pant which was

produced by the accused are seized by the police and item No.6 is

the pant where the blood stains are not detected and item No.5 in

FSL report was the torn white colour mill made T-shirt with dark KL,J &SKS,J Crl.A.No.776 of 2014

brown stains, but while seizing M.O.6-T-shirt there is no

description of colour or the identification of said T-shirt. Therefore

we cannot come to the conclusion that the accused clothes were

with blood stains and that blood stains are belonging to the blood

of the accused. This recovery of clothes basing on the confession

of the accused is not helpful to the prosecution to connect him

with the crime and except recovery of Rs.34,500/- there are no

other circumstances to prove the guilt of the accused. When there

is no eye witness to the incident and when the prosecution relied

on circumstantial evidence, all the circumstances must prove the

guilt of the accused beyond reasonable doubt and there must be

link between the circumstances.

26. In Ramreddy Rajeshkhanna Reddy & Another Vs State of

Andhra Pradesh 1 the Hon'ble Supreme Court held as under :

"It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [ See Anil Kumar Singh Vs State of Bihar (2003) 9 SCC 67 and Reddy Sampath Kumar v State of A.P (2005) 7 SCC 603]. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility

AIR 2006 (10) SCC 172 KL,J &SKS,J Crl.A.No.776 of 2014

of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration."

27. In Prakash Vs State of Karnataka 2, in Paragraph No.61,

the Hon'ble Supreme Court observed as under :

" In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gagamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory (Exh.P-27) was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB."

28. In case of circumstantial evidence, the Court has to examine

the evidence in its entirety and ensure that the only inference that

can be drawn from the evidence is guilt of the accused. In this

case, though prosecution relied on the circumstances, last seen

theory, evidence of Pw.7 that the accused confessed the guilt,

recovery of blood stained clothes and Rs.34,500/- basing on the

confession of the accused, under no circumstance is proved by the

prosecution beyond reasonable doubt and they failed to prove the

guilt of the accused. The trial Court erred in concluding that

prosecution proved the circumstances relying on the evidence of

2014 Crl L.J 2503 KL,J &SKS,J Crl.A.No.776 of 2014

Pws.5, 7, 10 and Pw.13 and convicted the accused for the offences