Telangana High Court

Kothuri Nadipi Pedda Rajam vs The State Of Telangana on 29 April, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

         THE HON'BLE SRI JUSTICE P.SAM KOSHY
                         AND
       THE HON'BLE JUSTICE SAMBASIVARAO NAIDU

                       I.A.No.1 of 2023
                            IN/AND
               CRIMINAL APPEAL No.2643 OF 2018

JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY)

Heard Mr.S.Nagender, learned counsel for the

appellants/accused Nos.1 & 2 and Ms.Shalini Saxena, learned

Assistant Public Prosecutor. Perused the material available on

record.

2. The instant is a bail application filed under Section 374 (2)

of Criminal Procedure Code, assailing the judgment of conviction

in S.C.No.342 of 2013, passed by the Principal Sessions Judge,

Adilabad.

3. Vide the said impugned judgment, the Court below has

found the two appellants herein guilty of having committed the

offence under Section 302 and 201 read with Section 34 of Indian

Penal Code, 1860 (for short, the 'IPC'). The two appellants, were

sentenced to Rigorous Imprisonment for life with fine of

Rs.5,000/- and with default stipulation for the offence under

Section 302 and further sentenced to Rigorous Imprisonment for

five years with fine of Rs.2,000/- with default stipulation for the

offence under Section 201 read with Section 34 of IPC.

4. The appeal is of the year 2018.

5. The bail petition earlier was rejected by this Bench when the

appeal was admitted after hearing on 01.10.2018.

6. Today, the matter was taken up for consideration on I.A.No.1

of 2023, which is an application for suspension of sentence moved

on behalf of the appellant/accused No.1.

7. The primary ground on the basis of which the suspension

was sought was the period of custody undergone by the appellants

herein being more than five years, in the light of the decision of

the Division Bench of this Court in Crl.A.M.P.No.1687 in

Crl.A.No.607 of 2011 decided on 19.12.2016.

8. Upon appreciation of the evidence which have come on

record, we found it more appropriate to decide the appeal itself on

merits rather than deciding the I.A.No.1 of 2023 which is for

suspension of sentence.

9. Accordingly, with the consent of the learned counsel for the

appellant and also learned Assistant Public Prosecutor, we

proceeded to decide the appeal itself on merits.

10. The case of the prosecution in brief is that the

appellant/accused Nos.1 and 2 along with two other accused had

conspired and later killed the deceased by throttling to death and

thereafter drowned the dead body in the well which situates in the

field of PW-1. On the recovery of the dead body and later the

complaint lodged by PW-2, the father of the deceased had

suspected the involvement of appellant/accused Nos.1 and 2 in so

far as causing the death of the deceased. They were taken into

custody and at the behest of the Police Authorities of Police

Station Khanapur, there was a confession made by the appellant

Nos.1 and 2 in the presence of PW-10. That on the basis of the

said judgment, the Charge Sheet was filed and the matter was put

for trial before the Principal Sessions Judge, Adilabad, where the

case was registered as S.C.No.342 of 2013. The crime that was

registered was Crime No.5 of 2013 in Khanapur Police Station.

11. The prosecution in all examined thirteen (13) witnesses i.e.,

PW-1 to PW-13. There was no witness on behalf of the defence.

Subsequently, after recording the statements under Section 312 of

the appellants, the impugned judgment of conviction has been

passed.

12. Initially, the Charge Sheet was filed against four accused

persons. Since accused No.3 Bhole Bhumesh, S/o.Duganna, was

absconding all along, his trial was separated and other three

accused were put to trial.

13. Vide the impugned order, the Court below found that the

prosecution has failed to lead sufficient evidence so far as the

involvement of the accused No.4, Kothari, S/o.Vedula, for the

offence under Section 302 and 201 read with Section 34 of IPC

and accordingly, the accused No.4 was acquitted.

14. However, the learned Sessions Judge found the

appellant/accused Nos.1 and 2 to be guilty of the offence under

Section 302 and 201 of IPC and for which after conviction they

have been sentenced for the period which is already stipulated in

the preceding paragraph.

15. Learned counsel for the appellants contended that the entire

case is based on circumstantial evidence and that there is no

proof whatsoever cogent enough on the part of the prosecution to

establish and conclude that the offence could have been

committed only by the appellants herein and not by any other

person. It was also the contention of the learned counsel for the

appellants that even if the entire version of the prosecution is

accepted as it is, there is no way of links made out so as to reach

to the only conclusion of the offence to have been committed by

the appellants alone.

16. According to the learned counsel for the appellants the very

basic materials required for establishing of an offence which is to

be proved on the basis of circumstantial evidence is not available.

Neither is there strong motive involved, nor is there the evidence

on last seen theory. The so-called confession made before the

PW-10 also has no admissibility value, as admittedly the so-called

confession made by the appellant Nos.1 and 2 was in the presence

of the Police Authorities themselves. Moreover, the categorical

stand of PW-10 was that when the confession was made before

him he was already with Police authorities who had called him to

be a punch witness for the confession statement.

17. It was also the contention of the learned counsel for the

appellant that the judgment of conviction further also is not

sustainable for the reason that the cause of death also cannot be

admissible also to be that by throttling as would be evident from

the postmortem report itself. In the postmortem report it is

revealed that there was water found in the lungs of the deceased.

The fact that the postmortem report shows water in the lungs give

rise to a doubt of the deceased being alive at the time when he had

fallen or thrown by the accused persons. That in the absence of

cogent and concrete evidence of the death having arisen due to

throttling, the case of the prosecution gets weakened. The entire

case of the prosecution therefore gets collapsed. The fact that the

death of the deceased to be by way of drowning cannot be ruled

out, in the factual backdrop available on record, particularly, the

postmortem report Ex-P-18.

18. Per contra, the learned Assistant Public Prosecutor opposing

the appeal submits that the prosecution has proved its case

beyond reasonable doubts as would be evident from the evidence

which has been led before the trial Court. Therefore, the judgment

of conviction does not require any interference.

19. According to the learned Assistant Public Prosecutor, it is a

case where the PWs-2 and 3, the parents of the deceased have

categorically stated that their son have gone missing from the time

the deceased left the house in company of the appellant No.2 on

the garb of watching a movie in one of the theaters in village

khanpur.

20. The learned Assistant Public Prosecutor further contended

that so far as motive is concerned, there was a motive for the

appellant to have committed the offence for the reasons that he

found the deceased to be maintaining illicit relationship with the

wife of the appellant No.1. The appellant No.1 had personally

found the two persons together and had warned both the deceased

as also his wife. This fact also stands proved from the statement of

PWs-2 and 3. Further, the learned Assistant Public Prosecutor

contended that the police in the course of investigation have also

recovered a belt and Bajaj Chetak Scooter belonging to the

deceased at the instance of the appellant Nos.2 and 2 and also

from the house of the appellant. Which again thereby becomes

incriminating material on the part of the prosecution in proving its

case. Lastly, it was contended that the statement of PW-10 before

whom the accused Nos.1 and 2 made a confession which

completes the chain of links so far as the circumstantial evidence

is concerned and therefore, the appeal deserves to be rejected.

21. Having heard the learned counsel on either side, some of the

admitted factual matrix is revealed from the material papers

available on record, the deceased herein was a young boy, aged

around 21-22 years. He was living in the neighborhood of the

appellant No.1. The appellant/accused No.2 is said to be the

friend of the deceased. The deceased went missing from

06.01.2013, when he left his house to watch a movie at Khanapur.

The deceased has gone to watch movie along with appellant No.2

at around 11 A.M. on 06.01.2013. PW-2, the father of the

deceased went to lodge a report at Khanapur Police Station only

after three to four days. That when PW-2 had reached the Police

Station, he was informed by the Police Authorities about the dead

body being found at the well in the fields of PW-1. The body by

then had already started decomposing and was putrefied state

and the tender parts of the body were in a putrefied state and the

tender parts of the body was eaten by the fish and other living

creatures in the well. The postmortem was conducted on

10.01.2013 at around 11:30 A.M. The postmortem was conducted

by PW-11, viz., Dr.Venugopalakrishna, Civil Assistant Surgeon at

Government Hospital at Khanapur at the relevant point of time.

22. The Doctor conducting the postmortem has opined the cause

of death to be "the cause of death to the best of my knowledge and

belief is due to shock due to asphyxia due to THROTTLING".

23. Before we proceed further, it would be relevant to take note

of the factual details found in the course of the postmortem.

The material portion of the postmortem is being reproduced herein

under:

"Unable to identify as the dead body is putrified and in the process of decomposition.

A male body lying flat with the eyes opened. Mouth opened. Tongue swollen and visible out and distended. Foul smelling. The greenish black in appearance. Skin peeled off in various areas. Neck

swollen and dark colored. Palms and soles wrinkled and pale.

Entire body is in the process of decomposition. INJURIES:-

Laceration of about 4x22 cms oval in shape on the neck region below chick, is seen.

Left ear and parts of soft tissues of different areas are eaten away by water animals.

Skull and brain- tissues are in the procees of putrefication.

Neck is thickened, swollen and darkened in both sides. Mouth is opened. Lips swollen. Tongue is swollen and seen outside.

Blood stained watery fluid present. Water present in the lungs.

Hyoid bone is intact with the thickened tissues."

24. Coming to the circumstantial evidence as has been

contended by the learned Assistant Public Prosecutor, the first

contention is that of the last seen theory. According to the

prosecution, the deceased was last seen together with the

appellant No.2. It is said that on 06.01.2013, accused No.2 went

to the house of deceased and took him to watch a movie at village

Khanapur. Thereafter, the deceased is said to be missing.

However, there is no cogent evidence led on the part of the

prosecution to show that after 06.01.2013 or on 06.01.2013 itself,

the deceased was murdered from the statement of PW-2.

The father of the deceased on the very next day i.e., on 07.01.2013

at around 4 A.M. in the morning itself had gone to the house of

the accused No.2 inquiring about his missing son from their

residence to the house of the appellant No.1 and if the statement

of PW-2 is to be believed at 4 A.M. in the morning itself both these

persons were found at their respective houses. Which itself shows

that things were too natural at their end and that it would not

have been a natural reaction if they would had committed the

murder and immediately come back to their respective residence

peacefully.

25. However, what is also reflected is that the father also did not

lodge a missing complaint even then that both the accused had

expressed their ignorance of the whereabouts of the deceased.

According to the PW-4, he went to the Police Station after three or

four days and when he had reached to the police station, the

police had informed him about the dead body found. The police

took PW-1 to the well where the body was found and he identified

it to be of his son. This again seems to be un-natural conduct on

the part of the father whose only son was missing from

06.01.2013 and he does not go to the police station even for

lodging a missing report.

26. Thus, the last seen theory propounded by the prosecution in

the given factual backdrop does not seem to be convincing that of

the deceased to be found in the company of the accused No.2

when they had gone to the cinema and even after the cinema.

27. The prosecution has not conducted any investigation so as

to even verify the fact whether the deceased and the appellant

No.2 had gone to any of the theaters in village Khanpur to watch a

cinema. It further weakens the case of the prosecution.

28. As regards the second stance, what action is reflected from

the postmortem report is that of water being found in the lungs of

the deceased. It is a known fact that if it would have been a case

of throttling and the deceased having died before being thrown

into the well there was hardly any scope for water to enter the

lungs of a dead body. The fact that in the course of conducting

the Post-Mortem the Doctor found water gives rise to a serious

doubt as to whether the deceased fell into the well or was thrown

in the well alive or dead. The finding of water in the lungs of the

deceased indicates that the deceased was alive when he fell into

the well or when he was thrown in the well: either of the

possibilities cannot be proved. If that is the situation, the entire

case of the prosecution itself would get collapsed for the reason

that the prosecution has been sticking on one particular stand

that the appellants had throttled the deceased to death and

thereafter he was thrown into the well. The medical evidence does

not support this theory propounded by the prosecution. This

finding in the Post-Mortem also breaks the chain of links required

in a case of circumstantial evidence. Another fact which needs to

be appreciated is that the father of the deceased (PW-1) in his

cross-examination in chief has made a categorical disclosure that

he had gone to the house of the accused Nos.1 and 2 inquiring

about the whereabouts of his missing son and both of them did

not give a satisfactory reply. The said deposition of PW-1

established the fact that both the appellants were available at

their respective residences on the day when the deceased had

gone missing. Another fact which is something unnatural is that

though the PW-1 (father of the deceased) has stated to have gone

to the house of both the appellants on the very same night but

could not get a favourable response or information, yet as per the

deposition of PW-1 itself, he went to the Police Station after three

or four days which does not appear to be a natural reaction of a

father whose only son has gone missing and it is in this context

that this Court presumes that perhaps the statement given by

PW-1 may be on account of instructions provided by the

Prosecution so as to make out that the case of the appellant is

stronger.

29. Another aspect which is difficult to accept from the

prosecution side is that the accused No.2, who was in fact the

friend of the deceased, might have helped the accused No.1.

Whereas the accused No.2 and accused No.1 have not stated or

claimed to be good friends. Apart from the aforesaid

circumstances which have been discussed in the preceding

paragraphs, there does not seem to be any further strong

materials available or brought by the prosecution to establish the

offence. PW-8, who was one of the persons who had first seen the

dead body floating in the well, has stated that one cycle tube was

tied around the waist of the dead body. There is no further

averment whether there was a big stone tied to the tube so that

the dead body does not float and would be drowned because of the

weight of the stone, nor is there any indication by the prosecution

to show that the other end of the tube also had a knot which must

have been tied to a stone. The case of the prosecution here also is

not very convincing. The possibility of the deceased who did not

knew swimming having entered the well with a tube around his

waist and if the air in the tube got released, the deceased would

not have got drowned, cannot be ruled out. It is nobody's case

that the deceased knew swimming.

30. Another aspect which does not have a convincing

explanation on the part of the prosecution is the retaining of one

leather belt and the Bajaj Chetak Scooter with its R.C. book at the

instance of accused No.1. The leather belt and the Bajaj Chetak

Scooter are things which are quite familiar to the family members

and the neighbours, and they could have been easily identified by

the neighbouring people as belonging to the deceased. In the said

circumstances, it is difficult to accept that after appellants would

kill the deceased, they would retain the leather belt and the Bajaj

Chetak Scooter with the appellant No.1. The prosecution only

says of having recovered the aforesaid two items, viz., leather belt

and Bajaj Chetak Scooter at the instance of Appellant No.1, but it

does not disclose as to the place from which it was seized.

31. Now we go to the legal position as to whether in the aforesaid

chain of events and the links attached are sufficient to meet the

requirements in a case of circumstantial evidence to hold a

person/persons guilty of having been committed the offence of

murder.

32. The High Court of Kerala in the case of Raman vs. State of

Kerala 1 in paragraph Nos.12 to 17 has held as under:

"12. The learned counsel for the appellant submitted that the evidence of PWs. 1 to 3 cannot be believed. She submitted that the behaviour of PW 1 is suspicious since he did not go to the house of the accused on the information given by the accused that the deceased did not take water and the accused had beaten her. The learned counsel also submitted that the recovery of material objects is doubtful and many blood stained articles alleged to have been seized by the police were not

1 2015 SCC OnLine Ker39691

sent for Chemical Analysis. The learned counsel also submitted that even assuming that the accused has committed any offence, it would not attract Section 302 of the IPC and at best, the offence would be one under the second part of S. 304, IPC.

13. She also relied on the decision of the Supreme Court in Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839).

14. As stated earlier, there is nothing to disbelieve the evidence of PWs. 1 to 3. We do not also think that the conduct and behaviour of PW 1 was suspicious in the facts and circumstances. MOs. 1 to 3 were seized as per Ext. P4 Scene Mahazar. As rightly held by the court below, we do not think that MOs. 1 and 3 were recovered as per Ext. P3 Mahazar. The prosecution case to that extent is not believable.

15. In Kusha Laxman Waghmare v. State of Maharashtra (AIR 2014 SC 3839), the Supreme Court held thus:--

"After giving our anxious consideration in the matter and after analysing the entire evidence, we are of the view that it is not a fit case where conviction could be sustained under Section 302, IPC. The weapon used by the appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. As a result thereof, she died. There is no cogent evidence to show that the appellant had beaten the deceased with an intention to cause her death. In such circumstances, the conviction of the appellant under Section 304, Part-II, IPC will be just and proper."

16. In Anil v. State of Kerala (2014 (4) KLT 489), a Division Bench of this Court held thus:

"But, the nature of the transaction and all attendant circumstances would clearly show that the alleged acts, though could have been done with the knowledge that they are likely to cause death, were evidently done without any intention to cause death or to cause such bodily injury as is likely to cause death. Under such circumstances, we are of the view that the legal evidence on record proves, only that the accused had committed the offence punishable under Part-II of S. 304, IPC. The conviction and

sentence are, therefore, to be altered accordingly."

17. Ext. P4 Scene Mahazar shows that one crow bar and a hammer were found in the house of the accused. There is no case that the crow bar or hammer were used by the accused to beat his wife. On the other hand, the specific case of the prosecution is that the accused inflicted injuries on the deceased with M.O. 1 and M.O. 2. When PW 9 was examined, he was asked whether the injuries could be caused with M.O. 1 stick. It is also alleged that M.O. 3 stem of a coconut leaf was also used for inflicting the injuries. From the facts and circumstances, it is not discernible that the injuries were inflicted with an intention to cause the death of the victim or to cause such bodily injury as is likely to cause death. However, it is clear that the acts were done by the accused with the knowledge that it is likely to cause death of the victim. We are of the view that the offence under Section 302, IPC is not attracted in the case and only an offence under Section 304 Part-II, IPC is made out."

33. Further, the Hon'ble Supreme Court in the case of

Lavghanbhai Devjibhai Vasava vs. State of Gujarat 2 laying

down the basic parameters to consider while deciding the question

as to whether a case falls under Section 302 IPC or Section 304

IPC in paragraph Nos.6 to 8 as held as under:

"6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3- 2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the

2 (2018) 4 SCC 329

deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself.

7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:

(a) The circumstances in which the incident took place;

(b) The nature of weapon used;

(c) Whether the weapon was carried or was taken from the spot;

(d) Whether the assault was aimed on vital part of body;

(e) The amount of the force used.

(f) Whether the deceased participated in the sudden fight;

(g) Whether there was any previous enmity;

(h) Whether there was any sudden provocation.

(i) Whether the attack was in the heat of passion; and

(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner.

8. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting the blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part II IPC and not Section 302 IPC."

34. In the light of the aforesaid judicial pronouncements and the

principle laid down therein when we look into the facts of the

present case, the discrepancies, doubts and the suspicion referred

to firstly being as to whether the death of the ceased was in fact

due to drowning or throttling ? secondly, whether the theories of

last scene are leading to any conclusive proof of the availability of

the appellants anywhere near? and thirdly, whether the so-called

circumstantial evidence collected in the course of the

investigation, can it be conclusively held that the offence to have

been committed only by the appellants alone and not by anybody

else if at all if it is a case of murder? The other general

circumstance also referred to and relied on by the Trial Court also