Telangana High Court
Bollavoina Krishna, Secbad And Anr., vs State Of Telangana, ... on 25 July, 2024
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 405 OF 2015
Between:
Bollavoina Krishna and another
... Appellants/Accused Nos.1 and 2
And
The State of Telangana
... Respondent/Complainant
DATE OF JUDGMENT PRONOUNCED:
25.07.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
2
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
______________________
J. SREENIVAS RAO, J
3
* THE HONOURABLE SRI JUSTICE K.SURENDER
AND
* THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ CRL.A.No.405 OF 2010
% Dated 25.07.2024
# Bollavoina Krishna and another
...Appellants/Accused Nos.1 and 2
And
$ The State of Telangana
... Respondent/Complainant
! Counsel for the Appellant: Sri P.Prabhakar Reddy
^ Counsel for the Respondent: Public Prosecutor for State
>HEAD NOTE:
? Cases referred
-NIL-
4
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
CRIMINAL APPEAL No.405 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K. Surender)
This appeal is directed against the judgment of
conviction and sentence dated 23.03.2015 in S.C.No.191 of 2012
on the file of the Special Judge for trial of offences under S.Cs &
S.Ts (POA) Act-cum-VI Addl. Metropolitan Sessions Judge,
Secunderabad, whereby, appellants/accused Nos.1 and 2
(hereinafter 'the accused') were sentenced to undergo rigorous
imprisonment for life and to pay fine of Rs.1,000/-, in default
simple imprisonment for six months for the offence under
Section 302 of IPC; also sentenced to undergo rigorous
imprisonment for a period of seven years and to pay fine of
Rs.500/-, in default simple imprisonment for three months for
the offence under Section 364 of IPC; also sentenced to undergo
rigorous imprisonment for a period of three years and to pay
fine of Rs.500/-, in default simple imprisonment for three
months for the offence under Section 201 r/w 34 of IPC. All the
sentences of imprisonment were directed to run concurrently.
2. The appellants arrayed as accused Nos.1 and 2 were
tried along with accused Nos.4 to 6 for the offences under
Sections 364, 302, 120(B), 201 r/w 34 of IPC and accused No.3 for
the offence under Section 120(B) of IPC. The allegation against
them is that they have abducted the deceased namely Dayanand
and committed murder.
3. Briefly, the case of the prosecution is that the deceased
Dayanand and these appellants/A1, A2 and A3 belong to Yadav
community doing milk business. Since the family of the deceased
was making profits, the accused/A1 and A2 bore grudge against
him and planned to murder him with the assistance of other
accused. Accordingly, on 11.01.2011, A2, A4 to A6 kidnapped the
deceased and later accused/A1 and A3 joined them, killed him,
burnt his body and also threw the dead body into Musi river.
4. Since the deceased did not return home,
complaint/Ex.P-1 was filed by PW1 on the next day
i.e.,12.01.2011 at 06.30 PM. According to PW1, on 11.01.2011,
PW.2 along with the deceased went to supply milk in
Padmaraonagar limits at Garuda Apartments and while the
deceased stayed outside, PW.2 went inside the residential
complex. Thereafter, when PW.2 came out, after 20 minutes, he
found that the deceased was missing.
5. According to PW.2's evidence, he called up the cell
phone of the deceased and it was switched off. Thereafter, he
enquired with PW3 who was medical shop owner which is
opposite to the residential complex. PW3 informed PW2 that the
deceased informed PW3 that he was going with one Krishna of
Bolakpur (A1). The said information was passed on to the family
members of PW1 and others. Having searched for the deceased,
the complaint was filed on 12.01.2011 by the father of the
deceased. The crime was registered as 'Man missing'.
Investigation was taken up. Two weeks thereafter on 25.01.2011,
A1 was arrested and consequent to his confession regarding
murdering the deceased with the help of A2 to A6 and they were
also arrested. On 25.01.2011, all the accused were interrogated in
the presence of PW9 and PW13. According to the confession of
the accused, the deceased was kidnapped by them and taken to
the banks of Musi river, there, he was assaulted with stick on his
head and he was thrown into the river. At the instance of these
appellants and other accused, the police went to the place at
Gowrelli, where A4 produced a Lathi (Stick) from the bushes, A5
brought a plastic bottle in which petrol was found and
accordingly panchanama was drafted. At the scene, blood
stained earth/MO12, control earch/MO13, teeth of the
deceased/MO14, broken glass pieces of Mansion house liquor
bottle/MO15 and empty two liters green colour petrol bottle
(sprite bottle)/MO16 were seized. The said seizure was on
26.01.2011. On the said day, the accused were produced before
the Magistrate i.e. 26.01.2011. Meanwhile, the police searched
for dead body and body was found on 27.01.2011.
6. MO1/Maruthi car and MO2/Chetak scooter were also
seized at the instance of accused. The police sent the control
earth and other seized material objects for the purpose of FSL
examination.
7. On the next day i.e. 27.01.2011, the dead body was found
and an attempt was made to send samples for the purpose of
DNA examination to identify the deceased. However, DNA
testing could not be done for the reason of there being no
samples which could be compared with the DNA profile of the
blood samples which was collected from the mother and father
of the deceased. The FSL report/Ex.P21 reveals that human
blood was detected on the seized material objects i.e. blood
stained earth/MO.12 and Lathi/MO.3.
8. On the basis of the said confession and seizures made
during investigation, charge sheet was filed for the offences
under Sections 364, 302, 120(B), 201 r/w 34 of IPC.
9. The learned Sessions Judge mainly placed reliance on
the evidence of PWs4 to 7 who spoke about the recovery of the
dead body. On the ground that the dead body was recovered,
the Court came to the conclusion that it establishes the
involvement of these two appellants. Admittedly, the body was
not found at the instance of these accused. On 26.01.2011, after
seizure of the material objects at the alleged scene of offence, on
the next day, the body was found.
10. Heavy reliance was placed on the evidence of PW2 to
infer that the deceased went along with A1. According to the
evidence of PW2, when he went inside the residential premises,
the deceased was standing outside. When he came out,
according to him, PW3 informed that the deceased left with A1.
However, PW3 has turned hostile to the prosecution case and
did not state before the Court that the deceased left with A1.
11. The said evidence of PW2 cannot be believed since the
complaint/Ex.P1 given by the father of the deceased does not
mention the name of the accused or that the said Praveen/PW2
after coming out of the residential complex, he enquired with
PW3 or that any kind of information was given by PW3.
Apparently, the said version of asking PW3 and his information
about deceased having with A1, was subsequently developed.
12. There is no evidence of the deceased being last seen in
the company of the accused. The only evidence left are the
seizures of MOs 1, 2 and 3 and FSL report/Ex.P21. In Ex.P21,
though it is stated that the samples collected at the scene
contained blood, however, the blood group is not stated nor any
DNA analysis was done to conclude that blood found at scene
was that of the deceased. Further, it cannot be assumed that
there was kidnap and the said deceased was taken in the
car/MO1. There are no tyre marks of the vehicle at the scene nor
any incriminating evidence was found in the car to show that the
deceased travelled in the car.
13. The case is one of such circumstantial evidence. In a case
of circumstantial evidence, the Hon'ble Supreme Court in case of
State of Goa v. Pandurang Mohite1 at paragraph 17 held as
under:
"A reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC
1622). Therein, while dealing with circumstantial evidence, it
has been held that onus was on the prosecution to prove that
the chain is complete and the infirmity of lacuna in
prosecution cannot be cured by false defence or plea. The
conditions precedent in the words of this Court, before
conviction could be based on circumstantial evidence, must be
fully established. They are:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned `must' or `should' and not `may be'
established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show
(2009) 12 SCC
that in all human probability the act must have been done by
the accused."
14. Assuming for a moment that the place where the
accused has shown and the earth sample collected contained
blood that in itself would not be sufficient to infer that the
accused/A1 and A2 had beaten the deceased on his head after
kidnapping him and threw him in the Musi river. As already
stated, the dead body was not recovered at the instance of
accused.
15. PW4, PW5 and PW6 stated before the Court that they
started searching for the deceased and dead body was found on
the village border of Edulabad. According to PW6, some
villagers telephoned him and PW6 in turn informed the police.
PW6 along with Police, went to the scene. It is not the case that
body was fished out from the musi river or that the body was
found floating in the river. Though it is mentioned in
Ex.P-13/inquest report and stated by PW14/Investigating officer
that the body was found in the fields of Sathemma and Iliah,
they were not examined. Another glaring aspect is that though it
is the case of the prosecution that the body of deceased was
thrown in river after killing him and dead body was found after
10 days, PW11/PME doctor does not say that the body was in
the water for any length of time. The post mortem report Ex.P14
does not reflect that there was presence of water in any of the
organ. The body would be decomposed in 10 days. What would
be the effect of a dead body being thrown in the water is not
stated. Whether the body drowned or when the body would
have floated and what are the effects on the body are not at all
stated by prosecution. There is absolutely no scientific evidence
to suggest that the body of deceased was thrown in the river
after killing him. There are no connecting links in the present
case. An unfortunate incident happened which caused the death
of deceased. However, the prosecution has utterly failed to
connect the accused with the death of the deceased.
16. Accordingly, the appellants succeed and the impugned
judgment is liable to be set-aside.
17. In the result, the criminal appeal is allowed. The
judgment of conviction and sentence dated 23.03.2015 in
S.C.No.191 of 2012 on the file of the Special Judge for trial of
offences under S.Cs & S.Ts (POA) Act-cum-VI Addl.
Metropolitan Sessions Judge, Secunderabad, is hereby set aside
and the appellants/accused Nos.1 and 2 are acquitted of all
charges. The fine amount, if any, paid shall be refunded. Bail
bonds furnished by them shall stand cancelled.
As a sequel, miscellaneous petitions pending, if any, in
this Appeal, shall stand closed.
_________________
K.SURENDER, J
______________________
J. SREENIVAS RAO, J
Date: 25.07.2024
gvl
