Telangana High Court
Nunavath Mansingh, R.R. Dt. vs State Of Telangana, Rep. By P.P., Hyd on 2 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL No.126 OF 2015
JUDGMENT:
(Per the Hon'ble Sri Justice Sambasivarao Naidu)
The sole accused in S.C.No.528 of 2012 on the file of
III Additional District and Sessions Judge, Medak is the
appellant in the present Criminal Appeal which was filed
under Section 374 (2) Cr.P.C. The appellant seeks to assail
the Judgment, dated 27.11.2014 in the above referred
sessions case whereunder, the trial Court found him guilty
for the offences under Section 302 and 379 Indian Penal
Code (for short 'IPC') and convicted him under Section 235
(2) Cr.P.C., by sentencing him to undergo imprisonment for
life along with fine of Rs.5,000/- for the offence under
Section 302 and also to suffer simple imprisonment for two
(2) years for the offence under Section 379 IPC.
2. As could be seen from the allegations made in
the charge sheet, the accused has been prosecuted by the
police Kulcharam with an allegation that the appellant was
an auto driver by profession and one Lambada Jamuna
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(hereinafter be referred as deceased) was the wife of PW1
who was doing vegetable business and all these persons
belongs to Chinna Ghanpur Thanda. The appellant said to
have developed illicit intimacy with the deceased and
continued the same for two years prior to the date of
offence. He happen to borrow an amount of Rs.20,000/-
from one Gugloth Mali, about one year prior to the date of
offence and as he was unable to repay the loan amount,
and there was pressure from the said Mali for repayment of
the amount. It is also alleged by the prosecution that the
appellant developed some ill health and when contacted,
the appellant was told by the Medical Officer that he
received venereal decease (STD) and was advised not to
participate intercourse with the deceased. Though the
appellant stopped meeting the deceased, she used to
pressurize him. As such, the appellant wanted to get rid of
her, hatched a plan to commit theft of gold and silver
ornaments which she used to wear always.
3. The prosecution has further alleged that on
22.04.2012 in the afternoon the deceased left the house by
informing her husband that she was proceeding to Medak
to collect the overdue amount from one Gungu Laxmaiah
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and at about 12:20 in the noon she made a call to the
appellant herein to his mobile bearing No.9603067606
from her mobile bearing No.9640818847 and asked him to
come to cross roads at Pothamsetpally, where she will be
waiting for him. The appellant having received the said call,
decided to kill her so that he can permanently get rid of her
pressure and he can commit theft of gold and silver
ornaments.
4. It was also alleged in the charge sheet that in
pursuance of his plan, the appellant reached
Pothamsetpally in his auto and after the deceased boarded
his auto, he has allowed some more passengers to sit in his
auto and proceeded towards Narsapur and after the other
passengers got down the auto, appellant and deceased
proceeded towards the forest at the outskirts of
Nathnaipally and reached the place known as Nallagutta
where they used to participate in sexual intercourse
frequently. The appellant killed the deceased by using a
plastic rope by way of strangulating her and on
confirmation of death, removed her gold and silver
ornaments and escaped from the scene of offence.
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5. PW1 visited the police station and lodged a
complaint about the missing of his wife. After registering
the same as a case in crime No.25 of 2011 as woman
missing case, police, Kulcharam took up the investigation
and they have examined the material witnesses including
the brother of PW1 who is examined as PW2 before the trial
Court.
6. As could be seen from the further allegations in
the charge sheet, the prosecution has claimed that based
on the statements said to have made by PW2 and LW3-
Chadiram-younger brother of the deceased who have
informed the police that appellant was maintaining illicit
relation with the deceased. PW11 who took up the
investigation from PW7 pressed the services of ID Party to
obtain any clues about the missing lady. It is alleged that
the appellant herein was apprehended by the ID party
personnel on 13.05.2012 and they produced the appellant
before PW11 and on interrogation, the appellant said to
have made the confession before PWs 9 and 10 and said to
have produced the stolen property removed from the
deceased before the Investigating Officer. The appellant
said to have lead the police to the place where he said to
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have killed the deceased and showed the dead body.
Therefore, the Investigating Officer filed a requisition before
the concerned officials, could complete inquest as well as
post mortem examination at the spot and after completing
the investigation he has laid charge sheet against the
appellant.
7. The record further reveals that soon after
receiving the case records from the District Court, the
learned trial Judge examined the appellant herein and
framed charges under Section 302 and 379 IPC and as the
appellant denied the accusation, the matter was posted for
trial, during which the prosecution has examined PWs 1 to
11, marked Exs.P1 to P9 and MOs 1 to 6. After the
conclusion of trial, the entire incriminating material
evidence has been put to the appellant, he denied the
same. No witness was examined on his behalf.
8. The trial Court having appreciated the oral
evidence and other material documents came to the
conclusion that the prosecution was able to prove the guilt
of the appellant for the offences under Section 302 and 379
IPC and accordingly, convicted him under Section 235 (2)
Cr.P.C.
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9. Learned counsel for the appellant vehemently
argued that though the prosecution wanted to prove the
guilt of the appellant for the alleged offence on the basis of
circumstantial evidence, there is no link between the
evidence of material witnesses. The prosecution was not
able to explain as to why the important evidence i.e., call
data records is not placed before the Court. The
independent mediators PWs 9 and 10 before whom the
appellant said to have made confession did not support the
prosecution. There was no identification parade conducted
for the identification of the alleged stolen property by PW1.
Except the evidence of PW11-Investigating Officer, there is
no other incriminating evidence. Thereby, the trial Court
came to an incorrect conclusion and convicted the
appellant for the offences under Section 302 and 379 IPC,
sentencing him to undergo imprisonment for life. Thereby,
sought for setting aside the impugned judgment and
prayed for acquittal of the appellant.
10. On the other hand, the learned Assistant Public
Prosecutor has submitted that the dead body of the
deceased was recovered from a big forest at the instance of
the appellant herein. The report presented by PW1 itself
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contains the details of property which was on the body of
the deceased when she left the house and the same
property was recovered from the appellant herein. Even
though the mediators before whom appellant made
confession, did not support the prosecution. In the light of
evidence of PW11 coupled with the recovery of the stolen
property and the other evidence produced before the Court
proved the guilt of appellant for the offences under Section
302 and 379 IPC beyond all reasonable doubt. Thereby,
prayed for dismissal of the appeal.
11. The appellant herein was found guilty for the
offences under Section 302 and 379 IPC by the trial Court.
The basis for such conviction is the alleged recovery of
stolen property and recovery of the dead body at the
instance of the appellant herein. It is true since the entire
case is resting on the circumstantial evidence, it is for the
prosecution to prove that the appellant herein took the
deceased from a particular place to the forest where the
dead body was recovered and said to have killed her for
gain and that the property that was on her person was
recovered from the appellant herein. There was no
independent witness examined by the prosecution to say
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that the deceased was last seen with the appellant herein.
Even though the Investigating Officer who filed charge
sheet specifically mentioned the two mobile numbers with
an allegation that before she met the appellant herein the
deceased made a call, inviting him to a particular place
and informed him that she will be waiting for his arrival
and inspite of clear information that the deceased have
used a particular SIM and she made a call to a particular
mobile number, the Investigating Officer did not produce
the call data records, thereby it shall be presumed that the
said call data record if produced, it will be against the case
of prosecution. It is true the report presented by PW1
contains details of gold and silver ornaments said to have
been on the person of the deceased when she left the
house.
12. PW1 is a vegetable vendor and he lodged a
report with the police on 24.04.2012 with a specific
allegation that his wife-deceased herein left the house on
22.04.2012 and when he made a call to the mobile number
of the deceased, he found the phone in switched off mode.
Therefore, he made calls to his relatives and enquired
about his wife. But, he did not choose to present any report
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for more than 48 hours. But, strangely he has mentioned
the details of gold and silver ornaments including the
weights of the respective ornaments. It is true the
Investigating Officer has claimed that those gold and silver
ornaments were recovered from the possession of the
appellant herein, but admittedly no test identification
parade for the identification of these items by PW1 was
conducted. The two independent mediators before whom
appellant said to have made a confession and produced the
ornaments, did not support the prosecution.
13. In view of these circumstances, it may not be
difficult for the Investigating Officer to secure the
ornaments from PW1 to connect the accused by simply
preparing a panchanama as if there was a confession by
the appellant. If really, the deceased made a call to the
appellant and asked him to meet her at a particular place,
it could not have been a difficult task for the Investigating
Officer to collect those details including the tower location
which can easily connect the appellant to the case.
Therefore, suppression of such material evidence, leads to
a presumption that if such call data records are produced,
it will disprove the case of prosecution. Even though the
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Medical Officer who conducted post mortem at the place
where the dead body was recovered, categorically
mentioned that the dead body was petrified, still claimed
that he noticed fracture of hyoid bone, which appears to a
difficult when a dead body which was subjected to heat
and rain in a deep forest for more than two weeks, still
shows fracture of a bone by use of a plastic rope etc. It
seems the post mortem report vide Ex.P6 has been
prepared to suit the case of prosecution, otherwise, it
would be very difficult for the Medical Officer to find all
these features on the dead body of the deceased which was
lying in the deep forest right from 22.4.2012 to 13.05.2012.
14. Therefore, all these circumstances creates any
amount of doubt whether really the appellant was
apprehended as deposed by PW11 and whether he really
lead the police to the place where a dead body was
recovered.
15. In addition to this the Investigating Officer did
not try to establish the identity of the dead body in spite of
the fact that the same was supposed to have been
recovered more than three weeks after the missing of a
lady. Neither any test for DNA was conducted, nor there
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does any identification mark on the dead body. PW1, who
happened to be husband of the deceased, has stated before
the Court that he could recognize the dead body with the
help of clothes and chappals. PW2 who is the brother-in-
law of the deceased also stated before the Court that he
has identified the dead body with the help of petty coat on
the person of the dead body. Therefore, the main
intergradient to prove the murder of the deceased i.e.,
identity of the deceased is missing in this case. The alleged
recovery of gold and silver ornaments is highly suspicious.
The important evidence viz., call data record is suppressed
by the prosecution. Therefore, the appellant is entitled to
benefit of doubt. But, the trial Court simply by believing
the evidence of PW12, recorded conviction against the
appellant under Section 302 and 379 IPC by sentencing
him to suffer life imprisonment and imprisonment for two
years. Therefore, the sentence is liable to be set aside.
16. In the result, the appeal is allowed. The
conviction and sentence ordered by the trial Court is set
aside. The appellant shall be set at liberty if, he is not
required in any other cases. The fine amount if, any, paid
shall be returned to the appellant after appeal time is over.
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As could be seen from the record, the ornaments marked
as MOs 1 to 4 were already returned to PW1, that order
holds good.
Pending miscellaneous applications, if any, shall
stand closed.
_________________________
JUSTICE P.SAM KOSHY
___________________________________
JUSTICE SAMBASIVARAO NAIDU
Date: 02.07.2024
PSSK
