Telangana High Court

Asadi Prasanna Kumar, Ananthapur Dist. ... vs P.P., Hyd on 8 July, 2024

Author: P. Sam Koshy

Bench: P. Sam Koshy

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

                 CRIMINAL APPEAL No.1209 of 2014

JUDGMENT:

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

Aggrieved by the judgment of conviction dated 09.10.2014

in S.C.No.352 of 2013 passed by the I Additional Sessions Judge

at Mahabubnagar, the instant appeal has been preferred by the

appellants - accused under Section 374(2) of Cr.P.C.

2. Heard Mr. P. Prabhakar Reddy, learned counsel for the

appellants and Mrs. Shalini Saxena, learned Additional Public

Prosecutor appearing for the respondent - State.

3. Vide the impugned judgment of conviction, the appellants

have been found guilty of having committed the offence

punishable under Sections 302, 380, 201 read with Section 34 of

the Indian Penal Code, 1860 (for short, 'IPC'). Upon convicting

the appellants, they were sentenced to undergo imprisonment for

life and fine of Rs.5,000/- each with default stipulation of three

(03) months for the offence under Section 302 of IPC. They were

also sentenced to undergo rigorous imprisonment for five (05)

years with fine of Rs.2,000/- each and with default stipulation of

one (01) month for the offence under Section 380 of IPC and the

appellants were also sentenced to rigorous imprisonment for a

period of three (03) years with fine of Rs.500/- each with default

stipulation of fifteen (15) days for the offence under Section 201

of IPC.

4. The case of the prosecution, in brief, is that on the

intervening night of 04/05.01.2012 R. Kistaiah (hereinafter, the

'deceased') aged around sixty (60) years, a retired Municipal

Commissioner was found murdered at his residence at Ashok

Nagar Colony of Narayanpet town. The report of the incident was

lodged on 05.01.2012 at 12:00hrs at Narayanpet Police Station.

It was alleged that the deceased seems to have been murdered

for gain as two (02) gold rings, one Titan wrist watch, the mobile

phone of the deceased, Rs.5,000/- cash and two ATM cards were

found missing from the house of the deceased.

5. Based upon the complaint, the police authorities at

Narayanpet Police Station registered the case as Cr.No.2 of 2012

for the offence under Sections 302 and 308 of IPC. In the course

of investigation, it is alleged that the police authorities on the

basis of call details that were collected from the mobile phone of

the deceased revealed that certain calls were made to appellant

No.2 immediately preceding the date of incident. It was based on

this that the two appellants were apprehended and in the course

they were said to have confessed of having committed the offence

and having taken the gold rings, wrist watch and mobile phone

of the deceased. Thereafter they were arrested and the charge-

sheet was filed and the matter was put to trial before the

I Additional Sessions Judge at Mahabubnagar vide S.C.No.305 of

2013. In the course of trial, the prosecution examined as many

as thirteen (13) witnesses i.e. PWs.1 to 13 and got exhibited

seventeen (17) documents from Ex.P1 to P17. There was no

evidence recorded in defence, neither was any document marked

on behalf of the defence. Later on, the statement of the

appellants under Section 313 of Cr.P.C was recorded and the

impugned judgment was finally passed holding the appellants

guilty of having committed the murder of the deceased for gain

and were sentenced for the period with fine as is reflected in the

initial part of this judgment.

6. Learned counsel for the appellants assailing the impugned

judgment of conviction contended that the entire case of the

prosecution is without any cogent and substantial evidence

proving the case so far as the appellants having committed the

offence. It was the contention of the learned counsel for the

appellants that the prosecution has not been able to collect and

connect the chain of links leading to the commission of offence

only by the appellants herein and not by anybody else.

7. It was also contended by the learned counsel for the

appellants that even otherwise the prosecution since having

failed to examine the witness from the service provider so far as

the call data is concerned, the evidence so collected is of no

consequence as it has not been sufficiently proved as is required

under Section 65B of the Indian Evidence Act, 1872, and in the

process Ex.P14 and Ex.P15 having not been effectively proved

weakens the case of the prosecution and the benefit of which is

liable to go to the appellants herein.

8. The further contention of the learned counsel for the

appellants was that even the alleged recovery of the gold rings,

wrist watch and cell phone has not been subjected to

identification as is required under Rule 35 of the Criminal Rules

of Practice and for which reason also the so-called recovery made

from the possession of the appellants becomes either

inconsequential or irrelevant.

9. For all the aforesaid strong grounds, the learned counsel

for the appellants prayed for setting aside the impugned

judgment of conviction and also prayed for clear acquittal of the

appellants.

10. Per contra, the learned Additional Public Prosecutor

opposing the appeal contended that the materials collected by

the prosecution in the course of investigation particularly Ex.P14

and Ex.P15 which are the details of calls made from the cell

phone of the deceased to appellant No.2 followed by their

apprehension establishes that it was the appellant No.2 to whom

the deceased had called last before he was murdered.

11. Learned Additional Public Prosecutor further contended

that the appellants have subsequently made a confession of

having committed the said offence and on the basis of the

confessional statement certain recoveries were made like the gold

rings, cell phone and the wrist watch of the deceased. All of

which further strengthens the case of the prosecution and thus

it can be safely concluded that the murder of the deceased was

committed only the appellants and not by anybody else.

12. The above two factors according to the learned Additional

Public Prosecutor are enough to link the chain of events and

prove the case of the prosecution beyond all reasonable doubt

and hold that the appellants who have committed the offence

and thus prayed for dismissal of the appeal.

13. Having heard the contentions put forth on either side and

on perusal of records, what is necessary, to be taken note at this

juncture is the statement of PW.7 (Smt. K. Susheela) i.e. the wife

of the deceased. She has accepted the fact that appellant No.2

used to work in the house of the deceased around six (06)

months prior to the date of incident. PW.7 in her deposition also

stated that her husband i.e. the deceased was having contacts

with many women as he was a womanizer. Further, from the

evidence which has been adduced by the prosecution witnesses,

apparently there is no strong evidence collected to show the

involvement of the appellants in the commission of offence.

14. The prominent two features upon which the prosecution

strongly banks and claims to have proved the case beyond all

reasonable doubt is the call data collected that of the appellant

No.2 and the deceased and the so-called recovery made.

However, further scrutinizing the evidence of prosecution

witnesses including that of PW.13 (N. Lingalaih, Inspector of

Police) would show that there is no evidence collected during

investigation or any deposition made by any of the witnesses

whereby the mobile phone and the mobile number used by the

deceased was disclosed so as to collect the call data. In the

absence of any cogent evidence at the first instance to show that

the call data which was collected by the prosecution was in

respect of the mobile number used by the deceased, the entire

call data details is of no use.

15. Likewise, it was contended that the gold rings, wrist watch

and the cell phone allegedly recovered from the possession of the

appellants also belonged to the deceased. However, there has

been no identification or cogent material adduced to show that

the gold rings, wrist watch and cell phone recovered from MOs.1,

3 and 4 in fact belonged to the deceased.

16. Another strange fact which is glaringly visible, is that, the

case of the prosecution that the appellants had also taken away

two (02) ATM cards from the house of the deceased is completely

silent in the entire prosecution case as regards the two (02) ATM

cards are concerned. The prosecution has not come up with a

clear stand as to whether those ATM cards were in fact recovered

from possession of the appellants or not, though in the

confession statement Ex.P9, the appellant No.1, has stated that

the police authorities have seized the ATM cards also. Thereafter,

there are no further details with the prosecution in respect of the

ATM cards.

17. PW.7 has not made any statement so far as the two (02)

ATM cards going missing from the house of the deceased. PW.7

also was not in a position to give the mobile number of the

deceased so as to ascertain whether it was the same number of

which the call data was collected. PW.7 however in her chief

examination expressed her inability in remembering the mobile

phone number of her husband i.e. the deceased which is very

strange and quite unusual. PW.1 (Kala Balappa) is also the son-

in-law of the deceased, PW.2 (Kalla Madhavi Latha) is the

daughter of the deceased and PW.3 (R. Madhusudhan) is the son

of the deceased. All three of them also were not in a position to

give the mobile number of the deceased which again sounds very

unusual in today's world. The items allegedly recovered from the

possession of the appellants like the gold rings, wrist watch and

cell phone have not been subjected to identification is clearly in

violation of Rule 35 of Criminal Rules of Practice.

18. Another major flaw in the prosecution case is the non-

examination of a witness from the service provider in respect of

the mobile phone and the mobile number allegedly belonging to

the deceased. The prosecution in fact has not even cited the

service provider as a witness. In the absence of which also the

call data details collected loses its significance. Even otherwise

only based upon the call data details wherein even if we presume

there were certain phone calls between the appellant No.2 and

the deceased that by itself is not sufficient enough, nor is it

strong enough to establish the guilt so far as the murder of the

deceased is concerned. In the absence of any other valid cogent

sufficient proof, the case of the prosecution gets further

weakened.

19. From the deposition of the family members of the deceased

himself i.e. PW.1, PW.3 and PW.7 none of whom have raised any

suspicion upon the appellants having committed the offence.

In fact if we look at the prosecution witnesses except for the

deposition of PW.13 there does not seem to be a single

prosecution witness to support the case of the prosecution so far

as the appellants having committed the offence are concerned.

Rule 35 of the Criminal Rules of Practice prescribes the

procedure of holding identification of the articles seized. The

given procedure admittedly was not adhered to.

20. The Hon'ble Supreme Court in the case of Jarapala

Deepala @ Babu Rao and others v. State of A.P. 1 dealing with

Rule 35 of the Criminal Rules of Practice which prescribes the

procedure of holding identification of the seized articles held as

under:

"As seen from Rule 35 of the Criminal Rules of Practice the identification of properties shall be held in the Court of Magistrate where the properties are lodged and each item of property shall be put up separately for the parade and it shall be mixed up with four or five similar objects and before calling upon the witnesses to identify the property, he shall be asked to state the identification marks of his property and the witnesses shall be called in one after the other and on leaving shall not be allowed to communicate with the witnesses not yet called in. The said procedure of conducting identification parade in respect of the property has not been followed in this case, as admittedly the identification parade was not conducted in the Court of the Magistrate. Thus, it is clear that the test identification in respect of the properties are not conducted in accordance with the procedure prescribed in Criminal Rules of Practice. Therefore, much credence cannot be given to the alleged test identification of the properties."

21. Similarly, the Division Bench of this High Court in the case

of Middela Parvaiah v. State of A.P., represented by its Public

1 2005 (2) ALD (Crl.) 818

Prosecutor, High Court of A.P., Hyderabad 2 held that when

once the Test Identification Parade of property was not

conducted in accordance with the procedure prescribed in

Criminal Rules of Practice, much credence cannot be given to the

alleged identification of the said property by the witnesses.

22. In view of the aforesaid judgment, the recovery of gold

rings, cell phone and the wrist watch cannot be said to be

properly proved and identified and the benefit of which would

definitely would go to the appellants herein.