Telangana High Court
Mohammad Abdul Bhari vs The State Of Telangana, on 18 July, 2024
HIGH COURT FOR THE STATE OF TELANGANA AT
HYDERABAD
*****
CRIMINAL PETITION Nos.6887 & 6894 of 2024
Criminal Petition No.6887 of 2024
BETWEEN
Thirunagaru Sravan Kumar @ Sravan,
S/o Venkata Rangaiah
... Petitioner
And
The state of Telangana,
Rep. by Public Prosecutor
High Court for the State of Telangana at Hyderabad
and others.
... Respondents
Criminal petition No.6894 of 2024
BETWEEN
Mohammad Abdul Bhari
S/o Late Mohammed Abdul Azeez
... Petitioner
And
The state of Telangana,
Rep. by Public Prosecutor
High Court for the State of Telangana at Hyderabad
and others.
... Respondents
Date of Judgment Pronounced: 18.07.2024
SUBMITTED FOR APPROVAL:
2
SKS,J
Crl.P.Nos.6887 & 6894 of 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? (Yes/No)
2. Whether the copies of judgment may be (Yes/No)
marked to Law Reports/Journals?
3. Whether their Lordship/ Ladyship wish to (Yes/No)
see the fair copy of the Judgment?
_______________________
JUSTICE K. SUJANA
3
SKS,J
Crl.P.Nos.6887 & 6894 of 2024
* THE HON'BLE SMT. JUSTICE K. SUJANA
+ CRIMINAL PETITION NOS.6887 AND 6894 OF 2024
% Dated 18.07.2024
Crl.P.No.6887 of 2024
BETWEEN
# Thirunagaru Sravan Kumar @ Sravan,
S/o Venkata Rangaiah
... Petitioner
And
$ The state of Telangana,
Rep. by Public Prosecutor
High Court for the State of Telangana at Hyderabad
and others.
... Respondents
Crl.P.No.6894 of 2024
BETWEEN
# Mohammad Abdul Bhari
S/o Late Mohammed Abdul Azeez,
... Petitioner
And
$ The state of Telangana,
Rep. by Public Prosecutor
High Court for the State of Telangana at Hyderabad
and others.
... Respondents
4
SKS,J
Crl.P.Nos.6887 & 6894 of 2024
! Counsel for Petitioners: 1. Sanjeeva Reddy
Garlapati in
Crl.P.No.6887 of 2024
2. C. Sharan Reddy in
Crl. P No.6894 of 2024
^ Counsel for respondents: S. Ganesh,
Assistant Public Prosecutor
<GIST:
> HEAD NOTE:
? Cases referred
1. Criminal Appeal Nos.1476-1477 of 2018
2. 2022 LiveLaw (SC) 843
3. Crl. Appeal @ SLP (Crl.) No.863 of 2019
4. (2000) 6 SCC 269
5. (2009) 9 SCC 417
5
SKS,J
Crl.P.Nos.6887 & 6894 of 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION Nos.6887 & 6894 of 2024
COMMON ORDER:
Since the issue involved in both the criminal petitions is
one and the same, they are being heard and disposed of
together by way of this common order.
2. These Criminal Petitions are filed under Section 482 of
Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to quash
the docket order dated 20.06.2024 against the
petitioners/accused Nos.4 and 6 respectively in S.C.No.70 of
2019, on the file of the learned Special Sessions Judge for
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act Cases - cum - II Additional District and
Sessions Judge, Nalgonda District.
3. The brief facts of the case are that respondent No.2/de
facto complainant lodged a complaint before the Police,
Miryalaguda I Town Police Station, Nalgonda District stating
that he had two sons. When his elder son, i.e., Pranay
Kumar, was in class 10, he got acquainted with one Amrutha
Varshini and later they became close to each other. One day
the said Amrutha Varshini told his elder son that if he did not
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accept her love, she would commit suicide, due to which, the
said Pranay Kumar accepted her love. When the love matter
was known to the father of Amrutha Varshini, he stopped her
studies and house arrested her. Due to the pressure of
Amrutha Varshini, the said Pranay Kumar took her to
Hyderabad and got married without informing anyone. The
father of Amrutha Varshini lodged a complaint about it before
the Miryalaguda Police, who then brought Pranay Kumar and
Amrutha Varshini from Hyderabad to Miryalaguda. Amrutha
Varshini informed the Police that they were majors, and as
such, they got married. Since then, Amrutha Varshini has
been residing with Pranay Kumar at his house.
4. It is further stated that Amrutha Varshini was conceived
and attending regular checkups at Jyothi Hospital in
Miryalaguda. On 14.09.2018, Amrutha Varshini, Pranay
Kumar, and his mother went to the hospital for medical
checkup, after completion of the same when they were going
home, an unidentified male person came behind Pranay
Kumar with a large knife, attacked him and dealt severe blows
on his head with a Knife, as a result, he received severe
bleeding injuries to his head and neck and died on the spot.
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Crl.P.Nos.6887 & 6894 of 2024
5. Based on the said complaint, the Police registered a
case in Crime No.139 of 2018 for the offences punishable
under Sections 302 read with 34, 120 (b) read with 109 of IPC,
and Section 3 (2)(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and Section 25 (1)
(A) and Section 27 (3) of the Indian Arms Act, 1959. After
completion of the investigation, they filed a charge sheet, vide
S.C.No.70 of 2019, before the learned Special Sessions Judge
for Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act Cases - cum - II Additional District and
Sessions Judge, Nalgonda District.
6. During the course of trial, the prosecution examined 17
witnesses. On 20.06.2024, during the chief examination of
P.W.17, the prosecution brought on record the confession
statement of accused Nos.1 and 6 and reiterated the same in
his evidence for which the defence counsel objected for
recording the said evidence. The trial Court has passed the
impugned order stating that though the confession of accused
Nos.1 and 6 was not admissible in evidence, the objection of
the defence was overruled since the confession revealed a
pertinent piece of information i.e., MO.6 - Mobile phone.
Hence, the present criminal petitions.
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7. Heard Sri Sanjeeva Reddy Garlapati, learned counsel
appearing on behalf of the petitioner in Criminal Petition
No.6887 of 2024, and Sri C. Sharan Reddy, learned counsel
appearing on behalf of the petitioner in Criminal Petition
No.6894 of 2024 as well as Sri S. Ganesh, learned Assistant
Public Prosecutor appearing on behalf of respondent No.1 in
both the cases.
8. Learned counsel for the petitioners submitted that the
confession of accused Nos.1 and 6 should only have been
admitted to the extent that they contributed to the discovery
of a fact and the trial Court should not have recorded the
entire confession in the evidence of P.W.17. The prosecution
asserted that MO.6 - Mobile Phone was discovered in the
confession statement of accused No.1, which is admissible as
per Section 27 of the Indian Evidence Act. He further
submitted that just a specific portion of confession is
acceptable in evidence and the same should have been
recorded. He further submitted that the prosecution marked
Ex.P.30 during the chief-examination of P.W.17 and that is
the relevant portion of the confession of accused No.1. Thus,
there is no reason for the trial court to record the entire
portion of the confession of accused No.1 in the evidence of
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P.W.17 since the admissible portion of the confession is
marked as Ex.P-30.
9. Learned counsel for the petitioners further submitted
that if the evidence of P.W.17 contains any inadmissible
evidence the same cannot be recorded. He further submitted
that Sections 25 to 27 of the Indian Evidence Act are very
obvious and establish that a confession made in front of a
police officer is not acceptable as evidence. It is the only part
that is admissible that results in a factual discovery. He
further submitted that the entire confession made by Accused
Nos.1 and 6 is not admissible as evidence, it is therefore,
illegal to record it. Therefore, prayed the Court to set aside
the docket order dated 20.06.2024 passed in S.C.No.70 of
2019.
10. In support of their submissions, learned counsel for the
petitioners relied upon the judgment of this Court in Criminal
Petition No.11358 of 2011, wherein it is held as under:
"This Court perused the record and also the
evidence recorded by the learned trial Judge during
the time of examination of P.W.5. It is unfortunate
to note that the learned trial Judge while proceeding
in this case in an erroneous manner, has recorded
the evidence adduced by P.W.5 in connection with
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Crl.P.Nos.6887 & 6894 of 2024
the confession given by the accused herein, which is
totally inadmissible in law. In so far as the Panch
witnesses are concerned, a duty is casted upon the
trial Court only to record the admissible portion,
which leads to recovery on the basis of the
confession concerned, whereas the trial Judge has
recorded the entire confession as evidence through
P.W.5. Hence, this Court is of the view that the
present petition has to be allowed and the following
directions are given to the trial Court.
The trial Court is directed to expunge the
evidence recorded through P.W.5 except to the
extent, which leads to recovery of the material
objects, and the trial Court can proceed further in
the matter."
11. Learned counsel for the petitioners further relied upon
the judgment of the Hon'ble Supreme Court in Venkaesh @
Chandra vs. The State of Karnataka 1, wherein in paragraph
No.19, it is held as under:
"19. We must observe that we have repeatedly
found a tendency on part of the Prosecuting Agency
in getting the entire statement recorded rather than
only that part of the statement which leads to the
discovery of facts. In the process, a confession of an
accused which is otherwise hit by the principles of
Evidence Act finds its place on record. Such kind of
statements may have a direct tendency to influence
and prejudice the mind of the Court. This practice
must immediately be stopped. In the present case,
Criminal Appeal Nos.1476-1477 of 2018
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the trial Court not only extracted the entire
statements but also relied upon them."
12. Per contra, the learned Assistant Public Prosecutor
appearing on behalf of respondent No.1 opposed the
submissions made by the learned counsel for the petitioners
stating that the order of the trial Court was lawful and the
confessional statement must be recorded to reach a
meaningful decision, and therefore, prayed the Court to
dismiss these criminal petitions.
13. In support of his submissions, learned Assistant Public
Prosecutor relied upon the judgment of the Hon'ble Supreme
Court in Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh 2, wherein in paragraph Nos.53, 66 and 67, it is held
as under:
"53. If, it is say of the Investigating Officer that
the accused appellant while in custody on his own
free will and volition made a statement that he
would lead to the place where he had hidden the
weapon of offence along with his blood stained
clothes then the first thing that the investigating
officer should have done was to call for two
independent witnesses at the police station itself.
Once the two independent witnesses arrive at the
police station thereafter in their presence the
accused should be asked to make an appropriate
2022 LiveLaw (SC) 843
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statement as he may desire in regard to pointing out
the place where he is said to have hidden the
weapon of offence. When the accused while in
custody makes such statement or rather the exact
words uttered by the accused should be
incorporated in the first part of the panchnama that
the investigating officer may draw in accordance
with law. This first part of the panchnama for the
purpose of Section 27 of the Evidence Act is always
drawn at the police station in the presence of the
independent witnesses so as to lend credence that a
particular statement was made by the accused
expressing his willingness on his own free will and
volition to point out the place where the weapon of
offence or any other article used in the commission
of the offence had been hidden. Once the first part
of the panchnama is completed thereafter the Police
party along with the other accused and the two
independent witnesses (panch witnesses) would
proceed to a particular place as may be led by the
accused. If from that particular place anything like
the weapon of offence or blood stained clothes or
any other article is discovered then that part of the
entire process would form the second part of the
panchnama. This is how the law expects the
investigating officer to draw the discovery
panchnama as contemplated under Section 27 of
the Evidence Act. If we read the entire oral evidence
of the investigating officer then it is clear that the
same is deficient in all the aforesaid relevant
aspects of the matter."
67. What emerges from the evidence in the
form of panchnama is that the appellant stated
before the panch witnesses to the effect that "I will
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show you the weapon used in the commission of
offence". This is the exact statement which we
could read from the discovery panchnama and the
Investigating Officer also could have been deposed
as regards the exact statement other than what has
been recorded in the panchnama. This statement
does not suggest that the appellant indicated
anything about his involvement in concealment of
the weapon. Mere discovery cannot be interpreted
as sufficient to infer authorship of concealment by
the person who discovered the weapon. He could
have derived knowledge of the existence of that
weapon at the place through some other source. He
may have even seen somebody concealing the
weapon, and therefore, it cannot be presumed or
inferred that because a person discovered weapon,
he was the person who concealed it, least it can be
presumed that he used it. Therefore, even if
discovery by the appellant is accepted, what
emerges from the panchnama of the discovery of
weapon and the evidence in this regard is that he
disclosed that he would show the weapon used in
the commission of offence. In the same manner we
have also perused the panchnamaExh.32 wherein
the statement said to have been made by the
accused before the panchas in exact words is "the
accused resident of Roghada village on his own free
will informs to take out cash and other valuables".
14. Learned Assistant Public Prosecutor further relied upon
the judgment of the Hon'ble Supreme Court in Perumal Raja
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@ Perumal vs. State, Rep by Inspector of Police 3, wherein
in paragraph No.22, it is held as under:
"22. However, we must clarify that Section 27
of the Evidence Act, as held in these judgments,
does not lay down the principle that discovery of a
fact is to be equated to the object produced or
found. The discovery of the fact resulting in
recovery of a physical object exhibits knowledge or
mental awareness of the person accused of the
offence as to the existence of the physical object at
the particular place. Accordingly, discovery of a fact
includes the object found, the place from which it
was produced and the knowledge of the accused as
to its existence. To this extent, therefore, factum of
discovery combines both the physical object as well
as the mental consciousness of the informant
accused in relation thereto. In Mohmed Inayatullah
vs. State of Maharashtra, elucidating on Section 27
of the Evidence Act, it has been held that the first
condition imposed and necessary for bringing the
Section into operation is the discovery of a fact
which should be a relevant fact in consequence of
information received from a person accused of an
offence. The second is that the discovery of such a
fact must be deposed to. A fact already known to
the police will fall foul and not meet this condition.
The third is that at the time of receipt of the
information, the accused must be in police custody.
Lastly, it is only so much of information which
relates distinctly to the fact thereby discovered
resulting in recovery of a physical object which is
admissible. Rest of the information is to be
Crl. Appeal @ SLP (Crl.) No.863 of 2019
SKS,J
Crl.P.Nos.6887 & 6894 of 2024
excluded. The word 'distinctly' is used to limit and
define the scope of the information and means
'directly', indubitably', 'strictly' or 'unmistakably'.
Only that part of the information which is clear,
immediate and a proximate cause of discovery is
admissible."
15. In the light of the submissions made by the respective
counsel and a perusal of the material available on record, it
appears that the trial Court has recorded the entire confession
of accused Nos.1 and 6 in the evidence of P.W.17, and
overruled the objection raised by the defence counsel before
the trial Court. The main contention of learned counsel for
the petitioners is that the confession is only admissible to the
extent of discovery of a fact, as such, the specific confessional
statement needs to be recorded in the evidence of P.W.17,
which is admissible. After reviewing the aforesaid contention,
learned Assistant Public Prosecutor opposed the same stating
that since the evidence is admissible, it must be recorded to
discover the fact.
16. At this stage, it is significant to note the relevant
sections of the Evidence Act, which reads as under:
"24. Confession caused by inducement, threat
or promise, when irrelevant in criminal
proceeding :-A confession made by an accused
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person is irrelevant in a criminal proceeding, if the
making of the confession appears to the Court to
have been caused by any inducement, threat or
promise having reference to the charge against the
accused person, proceeding from a person in
authority and sufficient, in the opinion of the Court,
to give the accused person grounds which would
appear to him reasonable for supposing that by
making it he would gain any advantage or avoid any
evil of a temporal nature in reference to the
proceedings against him.
25. Confession to police-officer not to be
proved :--No confession made to a police-officer,
shall be proved as against a person accused of any
offence.
26. Confession by accused while in custody of
police not to be proved against him:- No
confession made by any person whilst he is in the
custody of a police-officer, unless it be made in the
immediate presence of a Magistrate, shall be proved
as against such person.
[Explanation.--In this section "Magistrate" does
not include the head of a village discharging
magisterial functions in the Presidency of Fort St.
George *** or elsewhere, unless such headman is a
Magistrate exercising the powers of a Magistrate
under the Code of Criminal Procedure,1882(10 of
1882).]
27. How much of information received from
accused may be proved :--Provided that, when any
fact is deposed to as discovered inconsequence of
information received from a person accused of any
offence, in the custody of a police-officer, so much of
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such information, whether it amounts to a
confession or not, as relates distinctly to the fact
thereby discovered, may be proved."
167. No new trial for improper admission or
rejection of evidence. -- The improper admission
or rejection of evidence shall not be ground of itself
for a new trial or reversal of any decision in any
case, if it shall appear to the Court before which
such objection is raised that, independently of the
evidence objected to and admitted, there was
sufficient evidence to justify the decision, or that, if
the rejected evidence had been received, it ought not
to have varied the decision.
17. Reverting to the facts of the case on hand, the trial
Court in the impugned docket order held that the Court is not
justified in relying on the circumstances of discovery without
proving the contents of panchnama. To that effect, learned
Judge relied on the judgment of the Hon'ble Supreme Court in
State of Maharashtra vs. Damu Gopinath Shinde 4, wherein
it is observed that no doubt, the information permitted to be
admitted in evidence is confined to that portion of the
information which 'distinctly relates to the fact thereby
discovered'. But the information to get admissibility need not
be so truncated as to make it insensible or incomprehensible.
The extent of information admitted should be consistent with
(2000) 6 SCC 269
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understandability. Mere statement that the accused led the
police and the witnesses to the place where he had concealed
the article is not indicative of the information given.
18. In the aforesaid context it is opt to refer and rely upon
the decision of the Apex Court in the case of Murli v. State of
Rajasthan 5, wherein it is categorically observed that the
contents of the panchnama are not the substantive evidence.
The law is settled on that issue. What is substantive evidence
is what has been stated by the panchas or the person
concerned in the witness box. Further, the information must
be such as has caused discovery of the fact and information
must relate distinctly to the fact discovered. Furthermore, the
conditions necessary for the applicability of Section 27 of the
Indian Evidence Act are as follows:
1. Discovery of fact in consequence of an information
received from the accused.
2. Discovery of such fact to be deposed to
3. The accused must be in Police custody when he gave
information and
4. So much of information as relates distinctly to the fact
thereby discovered is admissible.
(2009) 9 SCC 417
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19. The scope and ambit of Section 27 of the Evidence Act
were illuminatingly stated in Pulukuri Kottaya and Others
vs. Emperor 6, AIR 1947 PC 67, which have become locus
classicus, in the following words:
"10. It is fallacious to treat the "fact discovered"
within the section as equivalent to the subject
produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the
accused as to this, and the information given must
relate distinctly to this fact. Information as to past
user, or the past history, of the object produced is not
related to its discovery in the setting in which it is
discovered. Information supplied by a person in
custody that "I will produce a knife concealed in the
roof of my house" does not lead to the discovery of a
knife; knives were discovered many years ago. It
leads to the discovery of the fact that a knife is
concealed in the house of the informant to his
knowledge, and if the knife is proved to have been
used in the commission of the offence that fact
discovered is very relevant. But if to the statement
the words be added "with which I stabbed A" these
words are inadmissible since they do not relate to the
discovery of the knife in the house of the informant."
20. A brief summary of the above judgment in Pulukuri
Kotayya (supra), wherein, it is categorically held that it is
unquestionably incorrect to treat the 'fact discovered' within
the section as being equivalent to the subject produced, the
AIR 1947 PC 67
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fact discovered includes the location from which the object is
produced and the same is in knowledge of the accused as to
this. Further, the information provided must be specifically
related to this fact. There is no connection between the
finding of the object and its past usage or history in the
setting in which it was discovered.
21. Further, it is also observed in the above judgment that
what emerges from the evidence in the form of panchnama is
that the accused stated before the panch witnesses to the
effect that "I will show you the weapon used in the
commission of offence". This is the exact statement, which we
could read from the discovery panchnama. But if the
statement the words be added "with which I Stabbed A", these
words are inadmissible since they do not relate to the
discovery of the knife in the house of informant".
22. Further Section 167 of the Indian Evidence Act, says
that the improper admission or rejection of evidence shall not
be ground of itself for a new trial or reversal of any decision in
any case, if it shall appear to the Court before which such
objection is raised that, independently of the evidence objected
to and admitted, there was sufficient evidence to justify the
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decision, or that, if the rejection evidence had been received it
ought not to have varied the decision.
23. In the present case, the trial Court seems to be recorded
total confession statement of the accused including
inadmissible part of the confession. Therefore, in view of the
of the facts and circumstances of the case and a cursory
reading of the above sections and judgments the inadmissible
evidence can be rejected and only admissible evidence can be
considered.
24. In view thereof, these criminal petitions are disposed of
directing the trial Court to consider the statement of P.W.17 to
the extent which is admissible as per Section 27 of the Indian
Evidence Act and remaining cannot be considered while
deciding the matter.
Miscellaneous applications, if any pending, shall also
stand closed.
___________
K. SUJANA
Date: 18.07.2024
Note: L.R. copy to be marked
B/o
SAI
