Telangana High Court
Mohd. Muzammil Ahmed , Chowdary, ... vs Spl. P.P., Hyd on 5 June, 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 NOS.843 AND 1155 OF 2014
COMMON JUDGMENT:
(per Hon'ble Sri Justice SAMBASIVARAO NAIDU)
The two separate criminal appeals have been filed by the
accused in S.C.No.300 of 2009 on the file of the X Additional District
Judge, Rangareddy District at L.B.Nagar, challenging the sentence of
conviction ordered by the trial Court vide Judgment dated 16.07.2014
by which the trial Court found accused No.2 guilty for the offence under
Section 302 of the Indian Penal Code, 1860 (for short, 'IPC') and accused
No.2 was sentenced to suffer imprisonment for life and to pay a fine of
Rs.1,000/-, in default of payment of fine, he shall suffer simple
imprisonment for one month. Further, the trial Court found accused
Nos.1 to 4 guilty for the offence under Section 404 of IPC and they were
sentenced to undergo rigorous imprisonment for three years each and to
pay fine of Rs.5,000/- each, in default of payment of fine, they shall
suffer simple imprisonment for one month each.
2. Accused Nos.1, 3 and 4 have filed Criminal Appeal No.843 of
2014 under Section 374(2) of the Code of Criminal Procedure, 1973 (for
short, 'Cr.P.C.') whereas accused No.2 filed separate appeal vide
Criminal Appeal No.1155 of 2014 under the same provision. Even
though two separate appeals have been filed the contentions raised by
the accused are almost one and the same and the appeals arise out of
the same Judgment, therefore, a common judgment is suffice to dispose
of the appeals.
3. Before adverting to the grounds raised by the appellants vide
their appeal grounds, it is just and necessary to refer the averments
made against the appellants herein in the above referred sessions case
and as to how the trial Court dealt with the case and as to how the case
ended in conviction.
4. The appellants herein were charge sheeted by PW.9-Inspector
of Police, Rajendranagar Police Station, with the allegations that they
have committed offences under Sections 302 and 379 of IPC. According
to the brief case of the prosecution as per the charge sheet, it is alleged
that one Galappa (hereinafter referred to as 'the deceased') and accused
No.2 were working as driver and cleaner of tempo bearing No.KA-32-
4082 which belongs to one Md.Farooq Ahmed, who was examined as
PW.4 before the trial Court. The prosecution has alleged that accused
No.1 also worked as driver in the same tempo for some time till
September, 2008 and subsequently, he quit the job. Accused No.1 has
got knowledge about PW.4 was giving huge money to the driver of the
tempo whenever the vehicle was taken to Hyderabad for the purchase of
confectioneries. It is also alleged in the charge sheet that since PW.4
refused to provide job to accused No.1, he developed grudge against
PW.4. Accused Nos.1 to 4 are said to be close friends and in view of their
knowledge that PW.4 used to get confectioneries from Hyderabad by
giving huge money to driver, they hatched a plan to commit theft of
money.
5. The prosecution has alleged that on 25.11.2008 accused
No.2 herein informed accused No.1 that they were proceeding to
Hyderabad on the above referred tempo and PW.4 handed over huge
amount to the deceased-driver, therefore, the accused hatched a plan to
commit theft of the said amount and in pursuance of their plan, accused
Nos.3 and 4 boarded the tempo at the petrol bunk at Gulbarga and
accused No.1 boarded the same tempo near a hotel at Hyderabad as
passenger proceeding towards Hyderabad and on the way, when the
vehicle reached Are Maisamma Temple at Bandlaguda at about 08.00
P.M. accused Nos.1 and 3 requested the deceased, who was driving the
vehicle, to stop the same on the ground of answering calls of nature.
When the deceased stopped the vehicle by the side of the road near Are
Maisamma Temple, accused Nos.1 to 3 have alighted from the vehicle
and when the deceased was checking the tyres of the vehicle, they have
attacked the deceased.
6. Accused No.2 beat the deceased with a spanner and when
the deceased fell down, accused Nos.1 and 3 attacked him with iron
rods and accused No.4 attacked him with iron pipe. Due to the said
injuries, the deceased died instantaneously. The accused by leaving the
dead body of the deceased at the place of offence, moved the vehicle
towards Moinabad and stopped the same at an isolated place and have
committed theft of Rs.1,10,000/- from the bag which was in the
possession of the deceased and shared the amount among them.
7. According to further allegations in the charge sheet the
prosecution has claimed that on 26.11.2008, PW.1, who is the resident
of Bandlaguda, Rajendranagar, Hyderabad, presented a report to police
stating that on the same date, at about 07.00 A.M. when he was
proceeding from his house to Himayathnagar, found the dead body of
the unknown male person lying under the banyan tree, and he lodged a
report before police and requested to take appropriate action. Basing on
the said report, PW.9-the then Inspector of Police, registered a case in
Crime No.1351 of 2008 under Section 302 of IPC and took up the
investigation.
8. The prosecution further alleged that the investigating officer
has completed the formalities like preparation of scene of offence
panchanama, holding inquest over the dead body of the deceased and
referring the dead body of the deceased to postmortem examination.
Police tried to trace the identity of the deceased and with the help of
tailor's label on the shirt of the deceased, they proceeded to Gulbarga
and could identify the wife and other family members of the deceased
and also they realized that the deceased was engaged on a tempo by
PW.4. The investigating officer had recorded the statements of all the
material witnesses. It is also alleged in the charge sheet that during the
course of investigation on 08.12.2008 when PW.9 conducted vehicles
checking at Are Maisamma Temple, they found tempo bearing No.KA-
32-4082 coming from Moinabad proceeding towards Hyderabad and
they noticed all the accused in the said vehicle, thereafter, they were
brought to the police station and he said to have interrogated them
before two independent mediators, who were examined as PWs.5 and 6
before the trial Court and the accused said to have confessed the
commission of offence and in pursuance of their confession, the
investigating officer said to have seized different sums of amount from
the possession of the accused and therefore, they were produced before
the concerned criminal Court for judicial custody and PW.9 having
completed investigation, filed charge sheet against the accused.
9. The trial Court after furnishing copies of the charge sheet,
examined the accused and framed charges under Sections 302 and 379
of IPC for which the accused having denied the charges and claimed to
be tried. During the course of trial, learned trial Court found that basing
on the allegations leveled against the accused in the charge sheet, a
charge under Section 379 of IPC could not have been framed, a charge
under Section 404 of IPC is an appropriate charge, thereby, added the
charge under Section 404 of IPC. To prove the allegations, the
prosecution had examined PWs.1 to 9 and marked Exs.P.1 to P.19 and
M.Os.1 to 9 are marked. Even though the learned Additional Public
Prosecutor has submitted that the investigating officer referred the
material objects seized from the scene of offence and from the accused
to Forensic Science Laboratory, no such material is available before the
trial Court and no record has been marked during the trial. The cash
said to have been recovered from the accused has been returned to PW.4
for interim custody.
10. Learned trial Court having appreciated the evidence accepted
the case of the prosecution to some extent, held that the prosecution
was not able to prove the guilt of accused Nos.1, 3 and 4 for the offence
under Section 302 of IPC but found accused No.2 guilty for the said
charge. Accordingly, convicted accused No.2 for the said charge for life
imprisonment. The trial Court having accepted the case of the
prosecution, the stolen property from the dead body of the deceased was
recovered from all the accused, convicted them under Section 404 of IPC
and sentenced them to undergo imprisonment as indicated above.
11. Heard learned counsel for the accused as well as learned
Additional Public Prosecutor and perused the record.
12. Learned counsel representing the accused have submitted
that there is no eye witness to the alleged offences and the entire case is
based on the circumstantial evidence. The trial Court on the premise
that accused No.2 was on duty in the above referred tempo at the time
of offence as per the evidence of the wife of the deceased, wrongly held
accused No.2 is liable for the offence under Section 302 of IPC. The trial
Court in spite of the fact that two independent mediators before whom
PW.9 supposed to have seized the stolen money turned hostile and did
not support the case of the prosecution and in spite of the fact that
though the evidence of PW.9 that he was not one among the checking
squad who said to have caught hold of the vehicle at Are Maisamma
Temple wrongly recorded the conviction under Section 404 of IPC.
Thereby, sought for setting aside the impugned Judgment and prayed
for acquittal of the accused.
13. The learned Additional Public Prosecutor has argued that the
employment of accused No.2 as cleaner on the above vehicle has been
proved and as rightly observed by the trial Court accused No.2 could not
explain as to what happened on that particular day and the evidence of
PW.9 coupled with recovery of the entire stolen amount proved the
involvement of all the appellants in the said offence, therefore, sought
for dismissal of the appeals.
14. As could be seen from the entire allegations in the charge
sheet and evidence of the material witnesses, it is the specific case of the
prosecution that PW.4 is the owner of the tempo and he is the resident
of Gulbarga, Karnataka. The prosecution has claimed that whenever he
sent the driver of the tempo to Hyderabad, he was in the habit of
handing over the huge amount to the driver for purchase of
confectioneries at Hyderabad. It is also contended that much prior to the
alleged offence, accused No.1 worked as driver on the tempo of PW.4.
According to further allegations in the charge sheet as well as in the
evidence of PWs.2 to 4, the deceased was engaged as driver of the said
tempo and on the date of the offence, the deceased was sent to
Hyderabad and PW.4 said to have handed over an amount of
Rs.1,10,000/- with a direction to the deceased to purchase the
confectionaries and accused No.2, was supposed to be cleaner on the
tempo. In order to prove all these allegations, the prosecution is relying
on the evidence of PWs.1 to 12.
15. Among these witnesses, PW.1, who is the resident of
Bandlaguda and who had seen the dead body of the deceased initially
near Are Maisamma Temple, and lodged a complaint before the police,
therefore, he has no knowledge as to how the offence was committed
and the evidence of PW.1 may not helpful to the case of the prosecution
to fix the offence against the accused.
16. PWs.2 and 3 are the wife and son of the deceased. According
to their evidence before the trial Court, the deceased was earlier worked
in KSRTC and he was removed from service, then, he was working with
PW.4. PW.2 categorically deposed before the trial Court that on
25.11.2008 her husband was on duty on the said tempo and he
proceeded to Hyderabad for bringing biscuit load and on the 3rd day,
police, Rajendranagar Police Station, visited her house and by producing
the shirt of her husband asked her to identify the dead body of her
husband by producing photograph and she along with her son and her
brother have identified the photograph of the deceased and they came to
Hyderabad and identified the dead body of the deceased at Mortuary,
Osmania Hospital, Hyderabad. They found injuries on the head,
stomach and legs of the deceased.
17. It is also the evidence of PW.2 that she had acquaintance
with all the accused as they belong to Gulbarga. Accused No.2 was
working as cleaner on the tempo being driven by her husband. PW.4
also stated the same version. However, nowhere in their deposition,
these two witnesses have stated that they have got knowledge that
accused No.2 was also on duty along with the deceased on the above
referred date when the deceased proceeding from Gulbarga to
Hyderabad for bringing Biscuit load.
18. PW.4, who is the owner of the tempo, deposed before the trial
Court that he has engaged the deceased on his vehicle during 2008 and
he gave Rs.1,10,000/- to the deceased for biscuit load from Hyderabad
and two days thereafter police from Hyderabad visited Gulbarga for
getting identification of the deceased. PW.4 also stated before the trial
Court that the amount which he has handed over to the deceased was
not found in the vehicle. Nowhere in his evidence, it is elicited from
PW.4 that accused No.2 was on duty on the said tempo when the
deceased was sent to Hyderabad for bringing biscuit load. However, the
trial Court while appreciating the evidence of these three witnesses
wrongly held as if it was established from the evidence of PWs.2 to 4
that the deceased came to Hyderabad as driver on the above referred
tempo and accused No.2 was on duty as a cleaner of the vehicle. Even
though PWs.2 and 3 deposed before the trial Court that accused No.2
was working as cleaner it was not elicited from these three material
witnesses that accused No.2 was on duty on that particular day.
19. The prosecution sought to rely on the alleged confession and
recovery to connect the accused with the above referred offence.
According to the evidence of PW.9 after registering the case basing on
the complaint lodged by PW.1 and after completion of other formalities,
they proceeded to Gulbarga and they could get the information about
the identity of the deceased from PWs.2, 3 and 4 and they have
completed the other formalities.
20. According to the evidence of PW.9 on 08.12.2008 again the
accused travelled in the same route along with the stolen cash and also
with the iron rods which they said to have used in the commission of
offence and said to have been arrested by the vehicle checking squad.
PW.9 has claimed that he brought the accused to the police station and
said to have interrogated them in the presence of PWs.5 and 6. Even
though PW.9 claims that the accused confessed the commission of
offence i.e., killing the deceased by using iron rods, spanner and iron
pipes etc. and committed theft of cash from the dead body of the
deceased, the two independent mediators did not support the case of the
prosecution as such they were declared as hostile and were cross-
examined by the Additional Public Prosecutor. Therefore, there remains
the only uncorroborated evidence of PW.9 to connect the appellants with
the case.
21. It is elicited from the evidence of PW.9 that on 08.12.2008
while vehicle checking was conducted by the special squad, they said to
have found the accused while they were travelling in the same vehicle
which they committed theft along with cash and other material objects.
It was elicited from PW.9 that he was not present in the said squad but
he found the accused while they were travelling in the same route. The
prosecution did not examine any officer from the said squad as witness
before the trial Court. Even if the evidence of PW.9 is taken into
consideration it is not corroborated with any evidence. The contentions
raised by PW.9 that the accused who said to have killed the deceased
near Are Maisamma Temple and committed theft of Rs.1,10,000/- and
also having removed the vehicle from the place again said to have
travelled in the same route along with the stolen property as well as the
material objects used in the commission of offence is highly improbable
and not acceptable.
22. If the accused really killed the deceased and committed theft
of vehicle as well as cash, there was no necessity for them to travel in
the same route that too along with the iron rods etc by carrying the
cash. Even if this particular evidence of PW.9 is taken into consideration
the two independent witnesses did not support the case of the
prosecution. Therefore, except the evidence of PW.9, who was not
present at the time of alleged vehicle checking, there is no other
evidence before the Court to connect the appellants with this case. But
the trial Court on the presumption that PWs.2 and 3 have stated about
the employment of accused No.2 as cleaner of the vehicle has believed
the entire story prepared by PW.9 in the panchanama and accepted the
case of the prosecution to some extent by holding accused No.2 alone is
guilty for the offence under Section 302 of IPC and also held that the
prosecution is able to prove the recovery through PW.9 and found the
accused guilty for the offence under Section 404 of IPC.
23. Being investigating officer of the case, it is very convenient to
PW.9 to depose before the trial Court as if he arrested the accused and
seized the cash. It may be true but for the sake of prosecution to
connect the appellants to the crime, he cannot produce such a huge
amount. But on the record it shows that the amount returned to PW.4
as there was no other claim by the appellants. The other possibility of
involvement of the accused on the ground that they were found with
cash though they were not really arrested on that particular day cannot
be ruled out.
24. Here is a case where the prosecution sought to rely on the
evidence of PW.9 to prove the charges under Sections 302 and 404 of
IPC except the evidence of the investigating officer there is no other
evidence to believe the said allegations. Therefore, the appellants are
definitely entitled to the benefit of doubt and the finding of the trial
Court that the employment of accused No.2 on the vehicle on that
particular day has been proved by the evidence of PWs.2 and 3 is
nothing but wrong. Therefore, the appellants are entitled for acquittal.
25. In view of the findings recorded hereinbefore, both the
appeals filed by accused Nos.1 to 4 deserve to be allowed and
accordingly, allowed. The sentence of conviction imposed against
accused Nos.1 to 4 vide Judgment dated 16.07.2014 passed in
S.C.No.300 of 2009 by the trial Court is hereby set aside. As a
consequence thereof, accused Nos.1, 3 and 4 are acquitted for the
offence under Section 404 of IPC while accused No.2 is acquitted for the
offences under Sections 302 and 404 of IPC. The fine amount paid by
the accused, if any, shall be refunded to them after expiry of appeal
time. The amount said to have been seized from the appellants was
already returned to PW.4. Though the alleged recovery is not proved
beyond all reasonable doubt, there is no other claim on the said
amount, as such the bond executed by PW.4 while receiving the amount
shall stands cancelled.
Miscellaneous applications pending in these appeals, if any, shall
stand closed.
_________________________
JUSTICE P.SAM KOSHY
__________________________________
JUSTICE SAMBASIVARAO NAIDU
Dated 04.06.2024
ynk
