Telangana High Court
Mohammed Khaja , Karate Khaja vs The State Of A.P., on 11 January, 2024
Author: K. Lakshman
Bench: K.Lakshman, P.Sree Sudha
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL No.224 OF 2014
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mr. S.M. Rafee, learned counsel for the appellant and
Mr. Muthyala Muralidhar, learned Additional Public Prosecutor
appearing on behalf of the respondent.
2. This appeal is filed challenging the judgment dated 12th and
18th November, 2013 in S.C. No.336 of 2012 passed by learned III
Additional District and Sessions Judge at Gadwal.
3. The appellant herein is the sole accused in the aforesaid S.C.
No.336 of 2012. For the sake of convenience, the parties are
hereinafter referred to as they were arraigned in S.C. No.336 of 2012.
4. Vide the aforesaid judgment, learned Sessions Judge
convicted the appellant - accused for the offences under Sections -
364A, 302, 379 and 201 of IPC and imposed life imprisonment and
other imprisonments for the said offences.
5. The case of the prosecution is as follows:
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KL,J & PSS,J Crl.A. No.224 of 2014
i) The accused, native of Gadwal town, is a tailor by
profession. PW.1 and LW.2 are the parents of the deceased - Ityala
Bhadrinath, while PW.2 is his elder brother. PW.1, a businessman is
also native of Gadwal Town.
ii) The accused joined in the tailor shop of one Mr. Nasir
situated in front of the cloth merchant of PW.3, paternal uncle of the
deceased, and worked there for about 4-5 years. While working in the
said tailor shop, the accused used to visit the house of PW.3 and PW.1
and developed intimacy with their family members by visiting their
house to give vegetables.
iii) The accused married Smt. Nasima Begum and blessed with
two (02) daughters and one (01) son. He opened a separate tailor
shop, but was unable to bear the family expenses with the earnings on
the said tailoring work. Therefore, he decided to earn money easily,
and illegally and accordingly hatched a plan to kidnap and earn
money.
iv) On 27.02.2012 at 1400 hours PW.1, father of the deceased,
lodged a complaint with Gadwal Town Police Station stating that his
son (deceased), aged 19 years, studying B.Tech., Course at Kottam
Tulasi Reddy College, left the house on 26.02.2012 at about 1730 3 KL,J & PSS,J Crl.A. No.224 of 2014
hours informing him that he is going to watch Cinema and did not
return home in the night. He searched for son in the night as well as
27.02.2012 morning at his college and with his friends. But, he could
not trace his son.
v) On receipt of the said complaint, the police registered a case
in Crime No.26 of 2012 under 'man missing' and took up
investigation.
vi) During investigation, on 01.03.2012, PW.1 reported the
police that on 27.02.2012 and 28.02.2012 he made phone call to his
son's mobile, an unknown person spoke and informed him that he had
kidnapped his son and demanded Rs.25.00 lakhs and also informed
that the pant of his son was thrown in the premises of his house.
vii) During investigation, it is revealed that pursuant to the said
plan, the accused decided to kidnap the deceased since he was
physically weak and PW.1 is financially well and accordingly on
26.02.2012 at about 2000 hours, the accused found the deceased alone
proceeding towards his house, convinced him to accompany the
accused on his motorcycle to get onions from Kothapally Village.
The accused took the deceased on his motorcycle and went to
Kothapally Lift Irrigation Pump House. PW.5 and LW.7 found the 4 KL,J & PSS,J Crl.A. No.224 of 2014
deceased in the company of the accused as pillion rider of the
motorcycle.
viii) The accused snatched the cell phone of the deceased and
told that he kidnapped him. When the accused tried to keep the
deceased in pump house through the window of pump house, the
deceased did not co-operate and tried to escape. Then the accused
caught hold and strangulated him to death with rope. After
committing murder, the accused shifted the dead body on his
motorcycle to grave yard in the limits of Nadi Agraharam village, laid
on cremation structure of Brahmin Community, snatched away gold
chain with gold locket. The accused removed the pant of the
deceased, poured petrol from his motorcycle tank and burnt the body.
Later, the accused threw the pant of the deceased at the house of PW.1
and informed him that he kidnapped the deceased and demanded
ransom of Rs.25.00 lakhs.
ix) During investigation, the police examined the witnesses and
recorded the statements of witnesses and also conducted autopsy over
the dead body of the deceased and altered the section of law from man
missing to 302, 201, 364A and 379 of IPC on 01.03.2012. After
completion of investigation, the police filed charge sheet and the same 5 KL,J & PSS,J Crl.A. No.224 of 2014
was committed to the Sessions Judge which was numbered as
Sessions Case No.336 of 2012.
6. The learned Sessions Judge after framing the charges for the
aforesaid offences proceeding with trial. During trial, PWs.1 to 13
were examined and Exs.P1 to P14 were marked and so also MOs.1 to
7. The accused neither examined any witness nor marked any
document on his behalf.
7. After hearing both sides and perusing the entire evidence,
both an oral and documentary, the learned Sessions Judge recorded
conviction against the appellant herein and accordingly imposed life
imprisonment and other imprisonment on him for the aforesaid
offences.
8. Challenging the said conviction and sentences of life and
other imprisonment, the accused preferred the present appeal.
9. Learned counsel for the appellant - accused would contend
that the evidence of prosecution witnesses is not consistent and cogent
inspiring confidence to record conviction. The prosecution planted
material witnesses and falsely implicated the accused. The
prosecution failed to establish the identity of dead body as that of the 6 KL,J & PSS,J Crl.A. No.224 of 2014
deceased. Failure to collect and send samples to DNA and FSL for
analysis to prove that the dead body is that of the deceased is fatal to
the prosecution case. There was delay in lodging the complaint with
police and issuance of FIR. The last seen theory said to have spoken
by PW.5 is not convincing and he is a planted witness. Prosecution
utterly failed to prove motive and ingredients of Section - 364A of
IPC. Without considering all the said aspects, the trial Court recorded
conviction and imposed imprisonment for life which is illegal and,
therefore, the same is liable to be set aside.
10. On the other hand, learned Additional Public Prosecutor
would submit that the trial Court considering the depositions of
prosecution witnesses and also medical evidence convicted the
appellant. There is no error in it.
11. In view of the above rival submissions, the only issue that
falls for consideration by this Court is:
Whether the conviction recorded by the trial Court for the offences under Sections - 364A, 302, 379 and 201 of IPC against the appellant - accused is sustainable, both on facts and in law?
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KL,J & PSS,J Crl.A. No.224 of 2014
12. PW.1, father of the deceased, deposed about receipt of call
on 27.02.2012 night to his mobile number No.9441166942 informing
that his son was kidnapped and demanded Rs.25.00 lakhs for release
of his son. The voice of the said person is very familiar voice to him.
13. PW.2, elder brother of the deceased, deposed with regard to
the receipt of call by his father, informing that the said person
kidnapped his brother, demanded an amount of Rs.25.00lakhs, placed
the pant of the deceased in the compound of his house. MO.1 is the
pant of the deceased which was found in the compound of their house.
14. PW.3, junior paternal uncle of the deceased also deposed
on the same lines as deposed by PW.2.
15. PW.4 is the photographer, who took the photographs of half
burnt dead body of the deceased found in burial ground.
16. PW.5, an eye-witness, deposed that about 10 months ago at
about 8.00 P.M. while he and LW.7 were near Andhra Bank ATM
situate near Municipal Office, Gadwal, they noticed that the deceased
was in the company of the accused and they were proceeding in a
motorcycle towards cinema talkies road.
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KL,J & PSS,J Crl.A. No.224 of 2014
17. PW.6, tailor deposed that he and LW.9 took training in
tailoring from the shop of the accused.
18. PW.7, neighbor of the accused, deposed that about 10
months ago, the accused locked his house and did not come.
19. PW.8, mediator for scene of offence and inquest, deposed
that the police seized jean pant (MO.1) from the house of PW.1 under
the cover of Ex.P4 - panchanama in his and LW.13 presence. The
police also got conducted inquest over the dead body of the deceased
in their presence under Ex.P5.
20. PW.9, mediator for confession and recovery of material
objects, deposed that in the presence of himself and LW.14, the
accused confessed that he killed the deceased by strangulation and
burnt the dead body of the deceased with petrol at the burial ground.
The police recovered two cell phones, gold chain and motorcycle from
the accused in their presence which are MOs.3 to 6 and drawn
confessional and recovery panchanama, which is Ex.P7.
21. PW.10, the doctor, deposed that he conducted post-mortem
examination over the dead body of the deceased under Ex.P11.
According to him, the cause of death was possibility of strangulation. 9
KL,J & PSS,J Crl.A. No.224 of 2014
22. PW.11 is the Sub-Inspector of Police and he deposed about
receipt of Ex.P1 from PW.1 and registration of crime and issuance of
FIR etc.
23. PW.12 is the Inspector of Police and he deposed about his
examination of PW.1 and recording of his statement under Section -
161 of Cr.P.C. and also seizure of MO.1 pant from the compound of
house of PW.1 and taking steps for conducting post-mortem over the
dead body of the deceased.
24. PW.13 is another Inspector of Police deposed about
conducting investigation, examination of witnesses and recording their
statements. He also deposed about arrest of the accused and recovery
of MOs.3 to 6 and preparation of panchanama and rough sketch and
after completion of investigation filing the charge sheet.
25. Attacking the impugned judgment, Mr. S.M. Rafee, learned
counsel for the appellant - accused, made the following submissions:
i) There is no direct evidence;
ii) Entire case rests on circumstantial evidence;
iii) Prosecution failed to prove motive;
iv) The Investigating Officer did not collect call data to prove
that PW.1, father of the deceased, received call from the accused and 10 KL,J & PSS,J Crl.A. No.224 of 2014
demanded ransom. Certificate issued under Section - 65B of the
Indian Evidence Act, 1872 was not filed in support of Ex.P14;
v) The dead body was not recovered and only part of the body
was recovered;
vi) DNA test was not conducted;
vii) Prosecution utterly failed to prove the ingredients of
Section - 364A of IPC;
viii) The version of prosecution that accused brought the dead
body 10 kilometers in gunny bag is not proved and the same is
improbable;
ix) There are serious contradictions in the depositions of
prosecution witnesses. PW.5 is a planted witness. The deceased is an
Engineering Student and, therefore, there is no question of deceased
accompanying the accused to the alleged scene of offence.
x) Even with regard to the recovery, there are serious
contradictions. FSL report was not obtained. Ex.P11 is not complete
post-mortem examination report and the same was not marked.
xi) Prosecution failed to prove that the accused either carried
petrol to burn the body of the deceased or that he took the petrol from 11 KL,J & PSS,J Crl.A. No.224 of 2014
his bike. The details and photograph of the deceased was not enclosed
along with Ex.P1 complaint.
xii) Identification of the accused is not proved. Prosecution
utterly failed to prove that the accused disappeared after the incident.
The Investigating Officer failed to conduct any investigation to prove
the ownership of MO.6, motorbike.
xiii) There is delay in sending the FIR to the Court. Chance
prints were not obtained. The prosecution has to prove the guilt of the
accused beyond reasonable doubt. In the present case, the prosecution
failed to prove the same. The chain is missing in the circumstances
relied on by the prosecution. Therefore, the trial Court cannot convict
the accused relying on the circumstantial evidence where important
chain is missing. Thus, the accused is entitled for acquittal.
26. On the other hand, learned Additional Public Prosecutor
would contend as follows:
i) Prosecution proved the guilt of the accused beyond
reasonable doubt.
ii) Conviction was recorded against the accused basing on the
following important aspects/circumstances: 12
KL,J & PSS,J Crl.A. No.224 of 2014
a) Close acquaintance of the accused with the deceased;
b) Last seen theory;
c) Accused disappeared immediately after the incident;
d) Recovery of MOs.1 to 7.
iii) The Investigating Officer has obtained Ex.P14-call data and
filed it. Thus, the trial Court on consideration of entire evidence
recorded conviction against the accused. Since there is close
acquaintance of the deceased with the accused, there is no need of
conducting test identification parade. It is a murder for ransom. The
offence committed by the accused is a grave and serious in nature.
27. PW.1, father of the deceased, lodged Ex.P1 - complaint on
27.02.2012 at 2.00 P.M. with police Gadwal Town stating that his son
left the house on 26.02.2012 at about 5.30 P.M. informing that he is
going to movie. He did not return. They have made enquiries with
his son's friends, college etc. Basing on the said complaint, the police
have registered a case in Crime No.26 of 2012 under the head 'man
missing'.
i) The Investigating Officer in the said crime had filed Ex.P13
alteration memo dated 01.03.2012 stating that on 01.03.2012 PW.1 13 KL,J & PSS,J Crl.A. No.224 of 2014
came to the Police Station and stated that on 27.02.2012 and
28.02.2012 when he (PW.1) made phone calls to his son's cell phone,
an unknown person attended the said call, informed PW.1 that he
kidnapped his son, demanded cash of Rs.25.00 lakhs and warned that
he would kill his son if he reports to police or any others. The
unknown person further informed PW.1 that he has thrown the pant
(MO.1) of his son in the compound of his house. He noticed the said
pant of his son in the compound of his house. He observed the
conversation voice of the said person that he is well known earlier.
He further stated that PW.1 came to know that an unknown person
was burnt in grave yard in the outskirts of Nadi Agraharam Village.
He along with his elder son (PW.2) went to the place, observed the
half burnt dead body, identified the long nails of right leg, right feet as
that of his missing son and there was no apparel below waist and there
was citizen wrist watch at left hand with burnt watch belt and half
burnt red colour waist thread. He further stated that the said unknown
person kidnapped his son, snatched away gold chain with locket
having I.B. letters weighing half tula, killed his son and burnt with
petrol. Basing on the said statement, the Investigating Officer altered 14 KL,J & PSS,J Crl.A. No.224 of 2014
the section of law to 302, 201, 364A and 379 IPC from 'man missing'
and filed alteration memo Ex.P13 dated 01.03.2012.
ii) PW.1 did not enclose photograph of his son along with
Ex.P1 complaint. In Ex.P1, PW.1 except stating that his son is 5'.5",
white complexion and lean and that he wore blue Pant and black T-
shirt, did not enclose photograph of his son. He has not mentioned the
mobile number of his son. However, the Investigating Officer failed
to contact the deceased, the son of PW.1 through mobile phone. The
Investigating Officer was silent on the said aspect.
iii) However, according to PW.1, on the night of 27.02.2012 he
received a telephone call to his cell phone i.e., 9441166942 from
unknown person who informed him that he kidnapped the son of
PW.1, demanded an amount of Rs.25.00 lakhs for release of his son.
28. PW.2, elder son of PW.1, deposed that on 27.02.2012 night
his father received a telephone call, the person, who telephoned his
father, informed that he kidnapped the deceased, demanded an amount
of Rs.25.00 lakhs for release of the deceased. His father switched on
speaker of cell phone and he heard the voice of the person who
telephoned to his father. The said voice of the person is familiar to
them.
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KL,J & PSS,J Crl.A. No.224 of 2014
29. PW.3, brother of PW.1 also deposed on the same lines.
But, PW.1 did not depose that he has switched on the speaker of the
said cell phone so that PWs.2 and 3 also heard the voice of the
unknown person.
Thus, there is serious contradiction with regard to the said aspect in
the depositions of PWs.1, 2 and 3.
30. PW.1 deposed that his mobile number is 9441166942. He
received a call to the said cell phone on 27.02.2012, but the
Investigating Officer failed to collect call data of PW.1 in respect of
the said cell phone No.9441166942. Ex.P14 is the call details list of
mobile Nos.8500495932 and 7382148613 belonging to the deceased
and PW.1 used by the deceased. The said fact was also admitted by
PW.13 - Investigating Officer. In fact, there is no mention about
Ex.P14 in the charge sheet. It is also relevant to note that the
Investigating Officer failed to file a certificate under Section - 65B of
the Indian Evidence Act, 1872, along with Ex.P14 details of call-data.
Ex.P14 - call data was marked during further chief-examination of
PW.13. The said call data belongs to the cell phone No.8500495932
belonging to the deceased.
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KL,J & PSS,J Crl.A. No.224 of 2014
i) However, during cross-examination, PW.13 categorically
admitted that he did not collect the address particulars of the persons
from whom the deceased received SMSs through the said phone
numbers. SIM No.9059789087 seized from the accused is not in his
name, it was stolen SIM and he was operating the same through his
phone. He did not examine Mahabub as he disowned his ownership
over the said number. He did not record the statement of Moosa
whose phone was allegedly stolen, but he was examined by the Sub-
Inspector of Police.
ii) PW.13 further admitted that he took up investigation only on
05.03.2012. During investigation, on the basis of cell phone calls,
they located the movements of the kidnapper. The accused used the
SIM Card No.9059789087 belongs to other and the accused used the
said SIM during the course of crime. The accused used the cell phone
of the deceased and demanded amount from PW.1. He has not filed
call data into the Court. Cell phone number of PW.1 is not mentioned
in the charge sheet. Thus, the prosecution utterly failed to prove the
call made by the accused to PW.1 and demand of ransom of Rs.25.00
lakhs. Therefore, the prosecution failed to prove motive. 17
KL,J & PSS,J Crl.A. No.224 of 2014
31. As discussed above, there is no direct evidence in the
present case. The entire case rests on circumstantial evidence.
Therefore, motive plays a crucial role. The prosecution has to prove
the motive beyond reasonable doubt. In the present case, the
prosecution utterly failed to prove the motive.
32. Section - 364A of IPC deals with kidnapping for ransom,
and the same is extracted as under:
"364A. Kidnapping for ransom, etc.--Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."
a) To prove the said offence, prosecution has to prove the
following three (03) ingredients:
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KL,J & PSS,J Crl.A. No.224 of 2014
(i) Kidnapping or abduction of any person or keeping a person in
detention after such kidnapping or abduction;
(ii) threatens to cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt or;
(iii) causes hurt or death to such person in order to compel the
Government or any foreign State or any Governmental
organization or any other person to do or abstain from doing
any act or to pay a ransom.
b) The Hon'ble Supreme Court in Shaik Ahmed v. State of
Telangana1 held that the aforesaid ingredients are essential to prove
the offence under Section - 364A of IPC. The Apex Court further
held that after establishing first condition, one more condition has to
be fulfilled since after first condition, word used is "and". Thus, in
addition to first condition either condition (ii) or (iii) has to be proved,
failing which conviction under Section - 364A of IPC cannot be
sustained.
c) In Rajesh v. The State of Madhya Pradesh 2, a three-judge
Bench of the Apex Court examining the facts of the case therein,
1 . 2021 SCC OnLine SC 436 2 . AIR 2023 SC 4759 19 KL,J & PSS,J Crl.A. No.224 of 2014
where conviction was recorded by the trial Court confirmed by the
High Court for the offence punishable under Section - 364A of IPC,
held that in a case resting on circumstantial evidence, the prosecution
must establish a chain of unbroken events. The higher principle of
'proof beyond reasonable doubt' and more so, in a case built on
circumstantial evidence, would have to prevail and be given priority.
It was further held that there were cavernous gaps in the evidence that
the prosecution would offer as unbroken chain unerringly pointing out
to the appellants' guilt. Discrepancies galore in the prosecution's case
tear as under the fabric of its purported version as to how events
unfolded.
d) As discussed above, in the present case, the prosecution
utterly failed to prove the aforesaid three (03) ingredients.
e) According to the prosecution, there was close acquaintance
of the accused with the deceased family. Therefore, there is no need
of conducting test identification parade, but whereas, the prosecution
failed to prove the said aspect by producing cogent evidence. PWs.2
and 3 except stating voice of the person from whom they received a 20 KL,J & PSS,J Crl.A. No.224 of 2014
call is a familiar voice did not depose that they have close
acquaintance with the accused.
33. PW.5 deposed that PW.1, father of the deceased, is having
cloth shop. In that connection, he knows PW.1, the deceased and the
accused. However, during cross-examination, he categorically
admitted that the accused is not a prominent person in Gadwal. The
accused never stitched his clothes. He is only a normal tailor. He
does not know the house of PW.1 and the name of his villager who
was working in the cloth shop of PW.1. He had not visited the cloth
shop of PW.1. He has no close acquaintance with the deceased. On
that day, he has not spoken to the deceased and accused.
i) Thus, the prosecution failed to prove that the accused is
having close acquaintance with the deceased family by producing
cogent evidence. Therefore, the contention of the prosecution that due
to close acquaintance of the deceased with the accused, there is no
need of conducting test identification parade cannot be accepted.
34. With regard to other contention of the prosecution that the
accused disappeared immediately after the incident, prosecution has
examined PW.6. PW.6 deposed that he and LW.9 were trained in 21 KL,J & PSS,J Crl.A. No.224 of 2014
tailoring work in the shop of the accused at Gadwal. On 27.02.2012
onwards, the accused closed his shop and was not coming to his
tailoring shop. However, during cross-examination, he has admitted
that from the past six months i.e., from February, 2012 onwards, he
was taking training in tailoring work in the tailoring shop of the
accused. Two persons were working in the tailoring shop of the
accused. The accused is a good tailor. The accused used to work
from morning to evening in his tailoring shop. The accused used to
give Rs.10/- per day to him. He does not know the rent for the
tailoring shop of the accused. He does not know at what time the shop
was closed, but he used to leave the shop by 6.00 P.M. He does not
know the total days for February, 2012. He does not know whether
the police apprehended the accused on 01.03.2012.
35. According to the prosecution, PW.7 is the neighbour of the
accused. He deposed that the house of the accused situated by the side
of his house. The accused is a tailor. About 10 months ago, the
accused locked his house and he did not come to the house.
i) However, during cross-examination, he has admitted that
grandmother of the accused used to reside by the side of the house of 22 KL,J & PSS,J Crl.A. No.224 of 2014
the accused. The Investigating Officer did not record the statement of
the grandmother of the accused. He has further admitted that the
accused is having wife and three children and he used to go to hotel in
the morning and used to come to the house in the evening. The
accused used to go to his tailoring shop in the morning and used to
come to his house in the evening. He has not filed any document to
show that the accused is his neighbour. He has not seen the accused
on 01.03.2012. He does not know whether the police apprehended the
accused on 01.03.2012.
ii) Thus, the prosecution failed to prove that the accused
disappeared immediately after the incident by producing cogent
evidence.
36. According to PWs.1 and 2, on 27.02.2012 night, PW.1
received a telephone call from unknown person, who informed him
that the pant of the deceased (MO.1) was placed in the compound of
the house of PW.1. PW.1 did not state as to on which date and at
what time he has found MO.1 - pant in the compound of the house.
However, in Ex.P13 - alteration memo, dated 01.03.2012, it is
mentioned that PW.1 received phone call on 27.02.2012 and
28.02.2012 and informed PW.1 that MO.1 pant was thrown in the 23 KL,J & PSS,J Crl.A. No.224 of 2014
compound of his house. He noticed the pant of his son in the
compound of his house. Even in Ex.P13 also, there is no mention as
to on what date and at what time, PW.1 found MO.1 pant.
i) In Ex.P13 - alteration memo, there is mention about PW.1
receiving phone on 27.02.2012 and 28.02.2012, whereas, PWs.1, 2
and 3 deposed that PW.1 has received phone call in the night of
27.02.2012. However, PW.1 deposed that he did not inform about
receipt of telephone call immediately to the police due to fear.
Therefore, there are serious contradictions with regard to the receipt of
phone call by PW.1 on 27.02.2012 and 28.02.2012. As stated above,
the Investigating Officer failed to collect call data with regard to the
mobile number of PW.1 i.e., 9441166942. The said aspects were
admitted by PW.13 - Investigating Officer during cross-examination.
Therefore, recovery of MO.1 is also doubtful.
37. As discussed above, prosecution utterly failed to prove the
demand of ransom and the aforesaid three (03) ingredients to prove
the offence punishable under Section - 364A of IPC beyond
reasonable doubt by adducing evidence.
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KL,J & PSS,J Crl.A. No.224 of 2014
38. The deceased was an Engineering Student. According to
PW.1, he left the house on 26.02.2012 at 5.30 P.M. to watch a movie.
In Ex.P7 - confession statement, it is mentioned that on 26.02.2012 at
about 8.00 P.M. at Andhra Bank ATM Centre, Gadwal, the accused
found that the deceased alone was proceeding through Rajiv Marg on
walk towards his house. Having found the deceased alone, the
accused requested him to accompany him to Kothapally village to
bring onions and accordingly picked him up on his motorcycle and
proceeded through Rajiv Marg, Court, Ambedkar Statute, Housing
Board Colony and reached Nadi Agraharam road and thereafter
reached the road abutting PJP Canal and finally reached Kothapally
Lift Irrigation Pump House (hereinafter referred to as main scene of
offence). Then the accused took the cell phone of the deceased,
switched it off. He informed the deceased that he has kidnapped him
and he wants Rs.1.00 lakh.
39. However, there is no evidence as to whether PWs.1, 2 and
3 and the Investigating Officer tried to call the deceased with his
mobile phone. According to PW.1, the father of the deceased, his son
was possessing double SIM cell phone. Even then, no effort was
made by PWs.1 to 3 and the Investigating Officer to call the deceased 25 KL,J & PSS,J Crl.A. No.224 of 2014
over his mobile phone. When the mobile phone of the deceased was
switched of as per Ex.P7 - confession statement, there is no evidence
as to when and what time the said mobile phone of the deceased was
switched on. Thus, the prosecution failed to prove the demand of
ransom.
i) As per Ex.P7- confession statement, the accused stated that
he informed the deceased that he has kidnapped him and he needs an
amount of Rs.1.00 lakh. Whereas, PWs.1 to 3 and the Investigating
Officer deposed that the accused demanded an amount of Rs.25.00
lakhs. Thus, the prosecution failed to prove the said demand of
ransom of Rs.25.00 lakhs.
40. With regard to the last seen theory, the prosecution has
examined PW.5, who deposed that about ten (10) months ago at about
8.00 P.M., he and LW.7 were near Andhra Bank ATM situated near
Municipal Office, Gadwal. They have noticed the deceased in the
company of the accused and both were proceeding on motorcycle
towards Cinema Talkies Road. The accused was driving the
motorcycle while the deceased was sitting on the motorcycle.
However, during cross-examination, he has admitted that on that day,
they were at Andhra Bank ATM from 7.30 P.M. to 8.30 P.M. In 26 KL,J & PSS,J Crl.A. No.224 of 2014
general, first show cinema will be completed by 9.00 P.M. He is not
having any ATM Card. He does not remember the colour of clothes
of the deceased and the accused on that day. He cannot say the
company of the motorcycle (MO.6) of the accused on which they went
together on that day.
i) The statement of PW.5 was recorded after eight (08) days of
the incident. However, prosecution failed to examine LW.7 -
Urukundu. The police also failed to record the statement of the
Security Guard at ATM Centre. The said fact was also admitted by
PW.13 during cross-examination. Therefore, the prosecution failed to
prove the last seen theory by adducing cogent evidence. The evidence
of PW.5 is improbable and it is not inspiring confidence to connect the
accused with the crime.
ii) PW.12 also categorically admitted that he has not examined
the neighbours of the accused. He has also not examined the staff of
Engineering College and the students of Engineering College in which
the deceased was studying. According to him, the dead body was
burnt with petrol. Approximately, about 2 to 4 liters of petrol is
sufficient to burn the dead body. DNA test was not conducted. He has
not sent the bones of the deceased to FSL.
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KL,J & PSS,J Crl.A. No.224 of 2014
iii) It is settled law that in criminal jurisprudence, prosecution
has to prove the guilt of the accused beyond reasonable doubt by
adducing cogent evidence. However, grave the offence may be,
accused cannot be convicted on suspicion. In the present case, to
prove the last seen theory, prosecution utterly failed to prove the same
by adducing cogent evidence.
iv) It is relevant to note that the last seen theory is a weak piece
of evidence. Therefore, the prosecution has to prove the same beyond
reasonable doubt and we have to consider all the circumstances and
evidence. In the present case, prosecution failed to prove the last seen
theory which is a weak piece of evidence.
41. With regard to recovery, PW.8 - panch witness for scene of
offence, inquest and recovery of MO.1 pant. According to him, on
01.03.2012, he and LW.13 went to the house of PW.1 and in their
presence, PW.1 informed that the kidnapper placed the pant of the
deceased in the compound of the house of PW.1 to believe them that
the kidnapper kidnapped the deceased. PW.1 shown the pant of the
deceased placed in the compound of his house and the police seized
the jean pant in their presence under cover of seizure panchanama. 28
KL,J & PSS,J Crl.A. No.224 of 2014
MO.1 is pant, MO.2 is burnt wrist watch and Ex.P4 - panchanama.
However, police have not examined LW.13.
i) During cross-examination, PW.8 admitted that he went to the
house of PW.1 at about 1.30 P.M. The police has seized MO.1 pant in
their presence. At about 2.00 P.M., police conducted inquest over the
dead body of the deceased. The shirt of the deceased was completely
burnt. They have noticed burnt wrist watch by the side of right hand
of the dead body. They noticed MO.1 pant in the compound wall of
the house of PW.1.
ii) As discussed above, PW.1 in his deposition categorically
stated that he received phone call from unknown person on
27.02.2012 night. According to him, unknown person informed him
about placing the pant of the deceased (MO.1) in the compound of his
house. He has not informed the said fact to the police immediately
though he has lodged the complaint - Ex.P1 on 27.02.2012 at 2.00
P.M. He has not stated about date and time on which he found MO.1.
But, according to PW.8, MO.8 - pant was seized on 01.03.2012 at
1.30 P.M. 29 KL,J & PSS,J Crl.A. No.224 of 2014
iii) PW.9 is the witness for confession, recovery and scene of
offence. According to him, the police have recovered two (02) cell
phones, gold chain and motorcycle from the accused in their presence.
MO.3 is the gold chain with locket, MO.4 is the LAVA cell phone and
MO.5 is the Vodafone Company cell phone and MO.6 is the
motorcycle. At the instance of the accused, the Inspector of Police
recovered MO.7 - rope under cover of panchanama (Ex.P10) in their
presence.
iv) During cross-examination, he has admitted that the police
constables and Inspector were present at the office of Inspector,
Gadwal. At about 8.00 A.M., he and LW.14 went to the office of the
Inspector on that day. The accused informed them that he killed the
deceased on the same day of kidnap of the deceased. The accused
further informed them that phone call came to the phone of the
deceased on that day night at about 1.30 A.M. and the accused
informed that he kidnapped the deceased. The accused further
informed that on 27.02.2012 a phone call came to the cell phone of the
deceased. The accused informed them that on 27.02.2012 at about
3.00 P.M., he telephoned to the cell phone number found on the board
of the shop of the deceased and informed that he kidnapped the 30 KL,J & PSS,J Crl.A. No.224 of 2014
deceased. On 29.02.2012 afternoon, the elder brother of the deceased
(PW.2) telephoned and said that he wants to talk with the deceased
and PW.2 also informed that they would give money. The accused
received the said telephone call while the accused was at Ieeja. He
further admitted that he cannot say how many times the accused
received phone calls during that period. He cannot say how many
times the accused telephoned to PW.1. He and LW.14 have not
enquired the accused from which phone number the accused received
telephone calls. He is not the scribe of Ex.P7 - panchanama. He does
not know the name of the person who drafted Ex.P7. He and LW.14
know prior to Ex.P7 that the dead body of the deceased was found
burnt at burial ground.
v) Thus, there are serious discrepancies with regard to the
receipt of phone call by PW.1 and accused making phone call to
PW.1. There are also serious discrepancies with regard to PW.2, elder
brother of the deceased, calling to the deceased mobile number on
27.02.2012. Pw.2 never deposed that he made a call to the mobile
phone of the deceased. Thus, the prosecution failed to prove the
demand of ransom and also failed to produce cogent evidence to
connect the accused to the present crime.
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KL,J & PSS,J Crl.A. No.224 of 2014
vi) As discussed above, the Investigating Officer (PW.13)
failed to conduct investigation with regard to the ownership
particulars of MO.6 - motorcycle. The said fact was also admitted by
him during cross-examination. It is the case of prosecution that they
have recovered MO.3 - gold chain with locket from the possession of
the accused, that too after thirteen (13) days from the date of incident.
The accused was arrested on 14.03.2012. During cross-examination,
PW.13 - Investigating Officer has admitted that he has not enquired as
to on whose name registration certificate of motorcycle stands. Thus,
the version of prosecution is highly doubtful.
42. With regard to the dead body, according to PW.1, he was
informed that one burnt dead body was found at burial ground situated
at the outskirts of Nadi Agraharam Village. Then they went there and
found half-burnt dead body of his son by identifying hands, legs and
nails to the fingers of the dead body. They identified that the dead
body belongs to his son. They noticed red waist thread piece and
burnt watch. The strap of the watch was burnt. He identified that the
watch belongs to his son. MO.2 is the burnt wrist watch (strap of the
wrist watch burnt). MO.3 is the gold chain and the same belongs to
his son. PWs.2 and 3 also spoken on the same lines. 32
KL,J & PSS,J Crl.A. No.224 of 2014
i) As discussed above, according to PW.13 - Investigating
Officer, he has apprehended the accused on 14.03.2012 and recovery
of MO.3 - gold chain with locket was only on 14.03.2012, but he has
not informed the source of the said information. There is no mention
about the details of the person, who informed PWs.1 to 3 about the
burnt dead body which was found at burial ground situated at outskirts
of Nadi Agraharam. No investigation was done on the said aspect.
PW.13 admitted the said fact during cross-examination.
ii) PW.13 also admitted that he took up investigation only on
05.03.2012. Identification in respect of MO.3 was not conducted.
Ex.P7 - confession statement was not recorded when the accused was
in the custody. There was no custodial interrogation. Therefore,
prosecution failed to prove the confession followed by recovery.
iii) The scene of offence is 10 kilometers away from the
Brahmin Community burial ground. Perusal of the scene of offence
would reveal that Vysya Community burial ground is also abutting to
the burial ground of Brahmin Community. According to the
prosecution, the accused killed the deceased on the night of the
alleged kidnap i.e., 26.02.2012 by way of strangulation with MO.7 - 33
KL,J & PSS,J Crl.A. No.224 of 2014
rope at the main scene of offence. There is no dispute that main scene
of offence is 10 kilometers away from the Brahmin Community burial
ground. There is Krishna River bank abutting to the main scene of
offence. There is no explanation from the prosecution as to why the
accused brought the dead body of the deceased in gunny bag all the
way from main scene of offence to the Brahmin Community burial
ground which is 10 kilometers away, instead of throwing the dead
body in the said Krishna River or cremating the body there itself.
There is no explanation from the prosecution as to why MO.7 - rope
was found at Brahmin Community burial ground when the accused
committed murder of the deceased on 26.02.2012 itself by
strangulating him with MO.7 - rope. There is no investigation on the
said aspects.
iv) It is also relevant to note that the deceased is an
Engineering Student. The version of the prosecution that the accused
picked up the deceased at Andhra Bank ATM Centre when he was
proceeding to his house alone, informed him that they will go to
Kothapally to bring onions. The time was 8.00 P.M. Even according
to the prosecution, the accused took the deceased to the main scene of
offence from Rajiv Marg, Court, Ambedkar Statue, Housing Board 34 KL,J & PSS,J Crl.A. No.224 of 2014
Colony and reached Nadi Agraharam road and thereafter reached the
road abutting PJP Canal and finally reached the main scene of offence.
The height of the deceased is 5'.5". There was no resistance from the
deceased. Therefore, the version of the prosecution is improbable.
v) As discussed above, during cross-examination, PW.13 -
Investigating Officer categorically admitted that PW.1, father of the
deceased, identified the dead body of the deceased by identify the
nails, watch found by the side of the dead body. The bones of the
deceased were not seized. As stated above, PW.12 categorically
admitted that DNA test was not conducted and he has not sent the
bones of the deceased to FSL. Even according to PWs.1 to 3, they
have identified the dead body by identifying the hands, legs and nails
to the fingers of the dead body. Even then, DNA test was not
conducted. Prosecution has to prove guilt of the accused and connect
the accused to the crime beyond reasonable doubt by producing proper
evidence. In the present case, prosecution utterly failed to prove the
same. Therefore, the version of prosecution is highly improbable.
The deposition of PW.5 to the extent of last seen theory is not
inspiring confidence. His statement was recorded after eight (08) days
of the incident as admitted by PW.13 - Investigating Officer. Though 35 KL,J & PSS,J Crl.A. No.224 of 2014
in Ex.P7 - confession statement, it is stated by the accused that PW.1
has to bring the amount near Pillalamarri, Mahabubnagar. There is
no investigation on the said aspect.
vi) In Ex.P7 - confession statement, the accused stated that he
has collected the phone number of PW.1 from the name board of
PW.1's cloth shop. Even then, there is no investigation on the said
aspect. Even in Ex.P7, there is mention about committing theft of cell
phone of one Samoosa Iqbal i.e., 9059789087. He has changed SIM
Card. There is no investigation on the said aspect. In Ex.P7 -
confession statement, it is mentioned that on 26/27.02.2012 at about
1.30 AM, a phone call was received to the phone of the deceased.
Then he has informed that he has kidnapped the deceased. Even on
the next day also, a call was received to the phone of the deceased and
accused informed about kidnapping the deceased and demanded an
amount of Rs.25.00 lakhs. On 27.02.2012 at about 11.30 P.M. a
phone call was received to the mobile phone of the deceased from
PW.2 and the accused informed about the kidnap of the deceased and
demanded Rs.25.00 lakhs to release the deceased and the said amount
has to be handed over at Pillalamarri, Mahabubnagar. On 27.02.2012
at 3.30 P.M., he went to Rajiv Marg Road, collected the phone 36 KL,J & PSS,J Crl.A. No.224 of 2014
number from the name board of the shop of PW.1 and made a call
with the cell phone (committed theft) and informed about the
kidnapping of the deceased. On 28.02.2012, he observed about the
police conducting house to house check and, therefore, he left
Gadwal. On 29.02.2012, PW.2, elder brother of the deceased, made a
call to the deceased mobile and requested to talk to the deceased and
informed the accused that he would pay the amount demanded by him.
The depositions of PWs.1 to 3 are contradictory to the said statement
made by the accused in Ex.P7 - confession statement.
vii) It is relevant to note that in Ex.P7 - confession statement,
the accused stated that he went to his younger sister Mrs. Parveen's
house situated at Thatikunta village of Maldakal Mandal and stayed
there. On 14.03.2012, Gadwal Police apprehended him. Even then,
they have not recorded the statement of his younger sister, not
examined her during trial and no investigation was conducted on the
said aspects. Thus, the prosecution failed to connect the accused with
the subject crime.
43. Prosecution also failed to prove as to whether the accused
burnt the body of the deceased by carrying petrol on his motorcycle or
removing the petrol from his motorcycle. PW.11 on receipt of 37 KL,J & PSS,J Crl.A. No.224 of 2014
complaint from PW.1 failed to make any call to the mobile phone of
the deceased.
i) It is relevant to note that according to PW.13, PW.11
apprehended the accused and produced before him on 14.03.2012.
But, PW.11 in his evidence did not state the said fact. PW.13 during
cross-examination categorically admitted that he has not mentioned
cell phone number of PW.1 in the charge sheet. They have not
obtained chance prints. In Ex.P1, there is no mention about the
deceased wearing black jeans. In Ex.P7 - confession statement, the
accused stated that he has collected MO.3 gold chain with locket after
committing murder of the deceased, and if the body is at the main
scene of offence, the fishermen may identify them and police may
come along with sniffer dog. Therefore, his acquaintance with the
family of the deceased, he took the body of the deceased to the burial
ground of Vyshya Community near Agraharam village. There is no
investigation on the said aspect.
ii) Though in Ex.P7, there is mention about committing of theft
of cell phone of Samosa Iqbal, there was no investigation and
prosecution failed to produce any evidence on the said aspect. In 38 KL,J & PSS,J Crl.A. No.224 of 2014
Ex.P7, it is mentioned that the accused is having good relation and
acquaintance with the deceased family and the deceased, no
investigation was conducted on the said aspect.
iii) As discussed above, the Investigating Officer failed to
conduct any investigation with regard to the date and time on which
the mobile of the deceased was switched on as it was switched off as
per Ex.P7 - confession statement. But, according to Ex.P7, the
depositions of PW.1 to 3, phone calls were received to the mobile of
the deceased on 26/27.02.2012, 27.02.2012, 28.02.2012 and
29.02.2012. There was no investigation on the said aspects. Thus,
there are serious contradictions in the depositions of prosecution
witnesses. Apprehension of the accused was also not proved.
44. As discussed above, there is no direct evidence in the
present case. The entire case rests on the circumstantial evidence.
Prosecution has to prove guilt of the accused beyond reasonable doubt
and the circumstances relied upon by the prosecution has to form a
complete chain.
45. The prosecution has to prove the following five (05)
ingredients to prove an offence under Section - 364A of IPC: 39
KL,J & PSS,J Crl.A. No.224 of 2014
i. that the accused kidnapped or abducted any person;
ii. he kept a person in detention after such kidnapping or
abduction;
iii. that the accused threatened to cause death or hurt to such
person;
iv. threatened to cause hurt or death to such person in order to
compel the Government or any foreign State or international
Inter-Governmental Organizations or any other person to do or
abstained from doing any act; and
v. such kidnapping or abduction was for ransom.
According to the prosecution, the accused killed the deceased on the
date of kidnap i.e., 26.02.2012. Thus, the prosecution utterly failed to
prove the aforesaid ingredients.
46. Section - 201 of IPC deals with causing disappearance of
evidence, or giving false information to screen offender. The
prosecution has to prove the following ingredients:
i. That an offence has been committed;
ii. that the accused knew, or had reason to believe that such
offence had been committed;
40
KL,J & PSS,J Crl.A. No.224 of 2014
iii. that the accused caused evidence thereon to disappear or gave
false information respecting such offences, knowing or having
reason to believe the same to be false;
iv. that the accused did so with intent to screen the offender from
legal punishment and the following must be proved as an
aggravating circumstance;
v. that the offence in question was punishable with death or
imprisonment for life or with imprisonment exceeding 10 years.
As discussed above, the prosecution failed to prove the aforesaid
ingredients beyond reasonable doubt by adducing cogent evidence.
47. Even to prove Section - 379 IPC, the prosecution has to
prove the following ingredients:
i. that the property in question is movable property;
ii. that such property was in the possession of a person;
iii. that the accused moved such property whilst in the possession
of that person;
iv. that he did so without the consent of that person;
v. that he did so in order to take the same out of the possession of
that person;
41
KL,J & PSS,J Crl.A. No.224 of 2014
vi. that he did so with intent to cause wrongful loss to that person
or wrongful gain to himself.
As discussed above, the prosecution failed to prove the aforesaid
ingredients to attract the offence punishable under Section - 379 IPC
by adducing cogent evidence beyond reasonable doubt.
48. The trial Court framed the following three (03) points for
consideration:
i. Whether death of deceased is homicidal?
ii. Whether deceased was kidnapped for ransom and killed by
accused committing theft of valuables from deceased and set
fire to dead body to destroy evidence?
iii. Whether prosecution has made out the cases against accused for
the offences under sections 364-A, 302, 201 and 379 IPC
beyond reasonable doubt?
49. The trial Court referred the following circumstances relied
upon by the prosecution:
i. close acquaintance of accused with the family of the deceased;
ii. last seen alive theory;
42
KL,J & PSS,J Crl.A. No.224 of 2014
iii. disappearance of accused from his ordinary place of residence;
and
iv. recoveries made on apprehension of accused from his
possession and at his instance in pursuance of the confessions
made admitting his guilt.
50. As discussed above, the prosecution utterly failed to prove
the aforesaid four (04) circumstances beyond reasonable doubt by
adducing cogent evidence.
51. It is settled law that however grave the offence may be, on
suspicion accused cannot be convicted.
52. In paragraph No.43 of the impugned judgment, the trial
Court gave a finding that the prosecution proved the offence
committed by the accused beyond reasonable doubt. The trial Court
observed that it is settled principle that human agency may be faulty in
expressing picturization of actual incident but the circumstances
cannot fail and 'men may lie but circumstances do not'. The trial
Court despite observing that certain circumstances could not be
proved by the prosecution, there is some scope to believe that the
prosecution was not to the expectations, recorded conviction against 43 KL,J & PSS,J Crl.A. No.224 of 2014
the appellant. The finding of the trial Court that there are no material
missing links in the prosecution case is contrary to the record and
evidence. Further observation of the trial Court that it is well settled
that it is not essential that each of the links must appear on the surface
of the evidence adduced and some of the links may have to be inferred
from the proved facts is also contrary to the evidence. The trial Court
despite observing that in drawing these inferences, the Court must
have regard to the common course of natural events and to human
conduct and their relation to the facts of the particular case, recorded
conviction against the accused. Therefore, the finding of the trial
Court in the impugned judgment is contrary to the evidence available
on record.
53. It is settled law that even basing on the circumstantial
evidence, the accused can be convicted as held by the Apex Court in
Sharad Birdichand Sarda v. State of Maharashtra 3, the following
are the cardinal principles regarding appreciation of circumstantial
evidence which are postulated:
i. The circumstances from which the conclusion of guilt is to be
drawn should be fully established;
3 . (1984) 4 SCC 116 44 KL,J & PSS,J Crl.A. No.224 of 2014
ii. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty;
iii. The circumstances should be of a conclusive nature and
tendency;
iv. They should exclude every possible hypothesis except the one
to be proved; and
v. 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.
54. As discussed above, in the present case, the prosecution
utterly failed to prove the aforesaid circumstances and the chain is
missed. When the chain is missing and the circumstances are not
forming complete chain, the trial Court cannot convict the accused.
Benefit of doubt shall always be given to the accused. If two views
are possible, the view which is beneficial to the accused shall be
given.
45
KL,J & PSS,J Crl.A. No.224 of 2014
55. It is also relevant to note that in Ex.P7 - confession
statement, there is reference with regard to registration of crime in
Crime No.110 of 2010 by Manopad Police Station for the offences
punishable under Sections - 302 and 201 of IPC on the allegation of
kidnapping one Manohar Shetty by the accused for ransom. The
Investigating Officer on completion of investigation laid the charge
sheet against the appellant herein. The same was taken on file vide
S.C. No.208 of 2013. No investigation was conducted on the said
aspects. However, after full-fledged trial, learned III Additional
District and Sessions Judge acquitted the accused - appellant herein.
Therefore, the same has no relevancy in deciding the present appeal.
56. Thus, viewed from any angle, the impugned judgment is
not based on facts and law and it is liable to be set aside.
57. The present Criminal Appeal is accordingly allowed and
the conviction and sentence of imprisonment imposed vide impugned
judgment dated 12th and 18th November, 2013 in S.C. No.336 of 2012
passed by learned III Additional District and Sessions Judge at
Gadwal are set aside. Since the appellant herein - accused is on bail, 46 KL,J & PSS,J Crl.A. No.224 of 2014
the bail bonds stands cancelled. The fine amount, if any, paid is
ordered to be returned to the appellant - accused.
As a sequel, miscellaneous applications, if any, pending in the
appeal shall stand closed.
__________________ K. LAKSHMAN, J
__________________ P. SREE SUDHA, J 11th January, 2024 Mgr
