Telangana High Court

Wadde Raju, Mahaboobnagar Dist. vs P.P., Hyd on 1 August, 2024

           THE HONOURABLE SRI JUSTICE K.SURENDER
                                AND
     THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI


                  CRIMINAL APPEAL No.597 OF 2015

JUDGMENT:

(per Hon'ble Sri Justice K. Surender)

This appeal is directed against the judgment of conviction and

sentence dated 11.05.2015 in S.C.No.495 of 2014 on the file of the Judge,

Family Court-cum-VIII Additional Sessions Judge, Mahabubnagar,

whereby, the appellant/accused was sentenced to undergo

imprisonment for life and to pay fine of Rs.5,000/-, in default simple

imprisonment for six months for the offence under Section 302 of IPC;

also sentenced to undergo simple imprisonment for a period of two

years for the offence under Section 379 of IPC; also sentenced to undergo

simple imprisonment for a period of three years for the offence under

Section 201 of IPC. All the sentences of imprisonment were directed to

run concurrently.

2. Heard Sri Pulimamidi Shashidhar Reddy, leagal aid counsel for

the appellant/accused and Sri Jithender Rao Veeramalla, learned Addl.

Public Prosecutor for the respondent/State. Perused the record.

3. Briefly, the case of the prosecution is that the dead body of

mother of PW4 was found on 28.04.2014 in the limits of Appaipally

Village of Mahabubnagar Mandal. The said body was identified as that

of Shanthamma. PW4 is the son of Shanthamma. Inquest proceedings

were conducted on the next day i.e. 29.04.2014. Even by the date of

inquest proceedings, the dead body was totally decomposed. Having

concluded the inquest proceedings, the body was thereafter cremated. It

was the opinion of the inquest panchas that the death might have

occurred 25 to 30 days prior to the date of inquest panchanma i.e.

29.04.2014. PW12 is the Post mortem doctor who conducted post

mortem and gave opinion on 28.04.2014 and according to him, the cause

of death of deceased was on account of head injury resulting in skull

bones fractures. Further, the doctor gave the approximate time of death

as 25-30 days prior vide PME report Ex.P7 dated 28.04.2014.

4. During the course of investigation, the Investigating

officer/PW15 apprehended the accused on 25.06.2014 and produced

before another Investigating Officer/PW16. PW16 conducted

confession panchanama of accused in the presence of PWs 9 and 10.

During the confession, according to PW16, he recovered one pair of

silver leg anklets/MO4 and other ornaments. Since MO4 according to

the prosecution belongs to the deceased Shanthamma, the recovery of

MO4 on 25.06.2014 gains importance.

5. On the basis of the confession and seizure of MO4 and other

ornaments which are MOs 5 to 7, including the motorcycle of the

accused and examining witnesses, PW17 concluded investigation and

filed charge sheet.

6. The learned Sessions Judge having gone through the evidence

of witnesses PWs 1 to 17, documents Exs.P1 to 10 and material objects

MOs 1 to 7 found the accused guilty.

7. The crucial evidence would be of the witnesses PW4 (son of

deceased), PWs 9, 10 (panch witnesses for seizure and confession) and

PW16 (Investigating officer). According to PW4, he identified the dead

body of Shanthamma and also identified MO1/yellow colour saree of

the deceased, MO2/bangle pieces, MO3/pocket book and MO4/one

pair of silver leg anklets. Though no date was given by PW4 on which

date he identified the dead body, it can be said that it would be either on

28.04.2014 when the dead body was found or on 29.04.2014 on the date

of inquest. However, in the inquest report/Ex.P4, the name of PW4 is

not reflected, which means, he was not present when the inquest

proceedings had taken place.

8. In the cross examination of PW4, he stated that on 07.05.2014,

he came to know that his mother died while he was at Hyderabad. If

PW4 came to know about the death on 07.05.2014, the question of

identifying the dead body or any of her ornaments or saree under MOs

1 to 4 does not arise. The body was cremated after inquest proceedings

on 29.04.2014.

9. Ex.P8 is another certificate of Property identification parade.

The said property identification parade was conducted on 20.09.2014,

according to which MO4 i.e. one pair of silver leg anklets of deceased

was identified by the daughter of deceased in the presence of PW13

Tahsildar. In the said circumstances, the identification of MO4 on the

day when PW1 say the dead body is falsified.

10. The conviction was based on the evidence of PWs 4, 9, 10 and

16. Heavy reliance was placed on the confession made by the accused

and the consequent seizure of MO4 and other ornaments. According to

confession, the accused was involved in several other cases of

committing murder of women and committing theft of their ornaments.

On the basis of the confession, conviction cannot be recorded. The said

confession was made in the police station in the presence of police

personnel. Such confession is hit by Section 25 of the Indian Evidence

Act. The only exception would be evidence of recovery which is

admissible under Section 27 of the Indian Evidence Act. In the present

case, when MO4 was seized on 25.06.2014 and identified by Anjamma

daughter of deceased on 20.09.2014 in the presence of PW13 vide Ex.P8,

the question of PW4 identifying MO4 during investigation does not

arise. It is apparent that the accused being apprehended and projected

as the person who committed murders of several women formed basis

to record conviction. Courts cannot convict on moral basis.

11. The burden is always on the prosecution to prove its case

beyond reasonable doubt. The Trial Courts cannot base its conviction on

a confession which is inadmissible. Conviction in the present case was

on the basis of the prosecution case projecting the accused as a serial

killer. The evidence adduced by the prosecution is highly discrepant,

unbelievable and events contradicting one another. As already

discussed above, the very prosecution case is not only doubtful but also

improbable. The case is based on circumstantial evidence. The five

golden principles constituting panchsheel to prove a case based on

circumstantial evidence were summed up in Sharad Birdhichand Sarda

v. State of Maharashtra 1, which reads as follows:

(1984) 4 SCC 116

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the following observations were made: [SCC para 19, p.

807:SCC (Cri)p.1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The only circumstance which the prosecution has proved is the alleged

seizure of MO4, which are the silver anklets of the deceased. However,

as discussed above, the above seizure was found to be incorrect and

apparently fabricated during investigation.

12. Accordingly, benefit of doubt is extended to the accused and

the conviction and sentence recorded by the Sessions Court is liable to

be set-aside.

13. In the result, the criminal appeal is allowed. The judgment of

conviction and sentence dated 11.05.2015 in S.C.No.495 of 2014 on the

file of the Judge, Family Court-cum-VIII Additional Sessions Judge,

Mahabubnagar, is hereby set aside and the accused is acquitted. He shall

be forthwith set at liberty if he is not required to be detained in