Telangana High Court
The State Of A.P. vs Syed Jahangir And 8 Others on 7 June, 2024
Author: K. Lakshman
Bench: K.Lakshman, Juvvadi Sridevi
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL APPEAL No.57 OF 2014
JUDGMENT:
(Per Hon'ble Sri Justice K. Lakshman)
Heard Mrs. Shalini Saxena, learned Assistant Public Prosecutor
appearing on behalf of the appellant - State and Mr. Mohammad
Muzaffer Ullah Khan, learned counsel for the respondents - accused.
2. The State filed the present Criminal Appeal challenging the
judgment dated 23.02.2012 passed by learned I-Additional
Metropolitan Sessions Judge, Hyderabad in Sessions Case No.94 of
2011 acquitting accused Nos.1 to 9 for the offences under Sections -
148, 120B & 452 and 302 read with 149 of IPC.
3. The appellant herein is the State, while respondent Nos.1 to
9 herein are arraigned as accused Nos.1 to 9 in the aforesaid S.C.
No.94 of 2011. For the sake of convenience, the parties are
hereinafter referred to as per their ranks in S.C. No.94 of 2011.
4. Mohd. Qamaruddin (deceased No.1) is the husband of Smt.
Sajida Begum (deceased No.2), while Mohd. Abdulla Biyabini
(deceased No.3) and Mohd. Kirmani (deceased No.4) are their sons
KL,J & JS,J
and Smt. Neha Afrin (deceased No.5) is their daughter and the wife of
accused No.1. Accused Nos.2 and 3 are the brothers of accused No.1,
while accused No.4 is the brother-in-law of accused No.1. Accused
No.5 is the wife of accused No.4, accused No.6 and 9 are the sisters of
accused No.1, while accused No.7 is the second wife of accused No.1
and accused No.8 is the wife of accused No.2. The de facto
complainant - Smt. Nishad Begum is the wife of deceased No.3 and
daughter-in-law of deceased Nos.1 and 2.
5. The case of the prosecution is as under:
i) On 23.11.2008, the marriage of accused No.1 was performed
with deceased No.5, the daughter of deceased Nos.1 and 2. After the
marriage, she led marital life with accused No.1 for three (03) months
happily and thereafter differences arose between them. Since then,
deceased No.5 was staying with her parents. Even a case in Crime
No.176 of 2009 was registered against accused No.1 and his parents
for the offences under Sections - 498A, 420 and 323 of IPC and
Sections - 4 and 6 of the Dowry Prohibition Act, 1961. She also filed
a maintenance case vide M.C. No.200 of 2009, wherein an amount of
Rs.4,000/- per month was awarded per month as maintenance with
arrears for ten (10) months. She also got issued legal notice to accused
KL,J & JS,J
No.1 to pay the maintenance including arrears. Accused No.1 and his
parents were attending the cases. On one such adjournment, when
accused No.1 and his parents were returning home after attending the
case, the mother of accused No.1 met with a road accident, sustained
head injury, and died. Due to which, the father of accused No.1 went
into depression. All these aggravated the grudge in the mind of
accused No.1.
ii) Accused No.1 also suffered financially owning to the
aforesaid cases, and thereby all the family members vexed with the
series of events in the hands of deceased No.1 and his family
members. Thus, accused No.1 and his family members bore grudge
against deceased No.1 and his family members and decided to
eliminate them. In pursuance of their plan, accused No.1 made recce
at the house of deceased No.1 i.e., H.No.2-3-647/A/360, Premnagar,
Amberpet, Hyderabad, and later hours observed the movements of the
inmates. On 29.05.2010 at about 11.00 P.M., accused No.2 visited the
house of deceased No.1 and noticed that all the vehicles are inside the
house and confirmed availability of the family members of deceased
No.1, he went and informed accused No.1 and other family members.
KL,J & JS,J
iii) On 30.05.2010 at about 5.00 A.M., accused Nos.1 to 9 were
prepared by taking deadly weapons i.e., accused No.1 with an iron
pipe, accused No.2 with an iron pipe, accused No.3 with screwed iron
part, accused No.4 one stick, accused No.5 with one knife, accused
Nos.6 and 7 with chilli powder packets and accused Nos.8 and 9 with
knives. Accused No.1 and 2 came to the house of deceased No.1 on
their motorcycle (Hero Honda) bearing registration No.AP 11 T/R
2766 and parked near CPL Church, while others came by foot. When
all reached together near the house of deceased No.1 at about 6.15
A.M., at which time deceased No.1 just opened the gate of the house
and accused Nos.1 to 4 pounced on the deceased No.1 and bolted the
gate from inside. Accused No.1 attacked deceased No.1 with iron pipe
on his head, due to which, he fell down. On hearing hue and cry of
deceased No.1, deceased Nos.2 and 5 woke up and came out from
their rooms into the Verandah. Accused No.1 attacked them with iron
pipe on their heads causing severe injuries. Accused No.2 attacked
deceased Nos.3 and 4 with iron pipe causing severe head injury.
Accused No.3 attacked deceased No.3 with screw iron part on the
head by causing severe injuries. Accused No.4 attacked deceased
KL,J & JS,J
No.4 with stick causing injuries, while accused Nos.5 to 9 guarding
the scene outside the house.
iv) After commission of offences, all the accused fled the
scene. Thereafter, all the injured were shifted to Osmania General
Hospital, where deceased Nos.1 to 4 were declared dead, while
deceased No.5 died while undergoing treatment on 02.06.2010.
6. On receipt of the report from PW.1 on 30.05.2010 at 10.00
A.M., the police registered a case in Crime No.207 of 2010 for the
offences under Sections - 452, 302 and 307 read with 34 IPC and
investigated into the matter.
7. On completion of investigation, the Investigating Officer
laid charge sheet against the accused for the offences punishable under
Sections - 120B, 147, 148, 452, 302 and 302 read with 149 of IPC,
and the same was taken on file vide P.R.C. No.43 of 2010. Since
some of the offences are triable by the Sessions Judge, IV Additional
Chief Metropolitan Magistrate, Hyderabad, committed the said case to
the Court of Sessions and the same was taken on file vide S.C. No.94
of 2011 and proceeded with trial.
8. The trial Court framed charges under Sections - 148, 120B
and 452 of IPC against all the accused, and charges under Section -
KL,J & JS,J
302 of IPC was framed against accused No.1 under three counts and
also Section - 302 read with 142 of IPC under two counts; charge
under Section - 302 read with 149 of IPC was framed against accused
Nos.2 to 9 under three counts; charge under Section - 302 of IPC was
framed against accused Nos.2 and 3; charge under Section - 302 read
with 149 of IPC was framed against accused Nos.1 and 4 to 9; charge
under Section - 302 of IPC was framed against accused Nos.2 and 4;
charge under Section - 302 read with 149 of IPC was framed against
accused Nos.2, 3 and 5 to 9. All the accused denied the said charges
and pleaded not guilty and prayed for trial.
9. During trial, the prosecution has examined as many as 22
witnesses viz., PWs.1 to 22, marked Exs.P1 to P64 documents and
exhibited MOs.1 to 22. No oral evidence was let in on behalf of the
accused, however, Ex.D1 - statement of PW.1 recorded under Section
- 161 of Cr.P.C. was marked.
10. On completion of trial and on appreciation of evidence,
both oral and documentary, learned trial Court found the accused not
guilty of the respective charges framed against them and accordingly
acquitted them.
KL,J & JS,J
11. Feeling aggrieved by the said judgment acquitting all the
accused, the State preferred the present appeal.
12. During pendency of the present appeal, learned counsel for
the respondents filed a memo vide USR No.14017 of 2023, dated
07.02.2023 along with death certificate stating that respondent No.2 -
accused No.2 died. Pursuant to the same, this Court abated the
proceedings against him vide orders dated 28.02.2024.
13. CONTENTIONS OF THE APPELLANT - STATE:
i. PW.1, an eye-witness to the incident, clearly stated that she saw
accused Nos.1 to 4 when they came to their house for
discussion between the deceased family and accused family of
settlement of disputes and, therefore, she could identify them in
the Court;
ii. Apart from the evidence of PW.1, there is also evidence of
PW.2 with regard to grill gate. But, without considering the
same, the trial Court gave a finding that there is no mention
about the grill gate in rough sketch of scene of offence;
iii. PW.1 is not an interested witness;
KL,J & JS,J
iv. Though PWs.3 to 6, eye-witnesses to the incident, did not
support the prosecution case, still there is evidence of PW.1,
who is also an eye-witness to the incident.
v. The prosecution also proved the ingredients of the aforesaid
charges;
vi. The offences committed by the accused are grave and serious in
nature; and
vii. The trial Court without considering all the said aspects and
based on surmises and assumptions, acquitted the accused.
With the aforesaid submissions, learned Assistant Public Prosecutor
sought to allow the appeal.
14. CONTENTIONS OF RESPONDENTS - ACCUSED:
i. PWs.3 to 6 said to be eye-witnesses did not support the
prosecution case as they turned hostile;
ii. There is no direct evidence to prove the guilt of the accused;
iii. Even, the circumstances on which the prosecution relied do not
form a complete chain to connect the accused for the alleged
offences;
KL,J & JS,J
iv. The prosecution failed to prove the essential ingredients of the
aforesaid offences;
v. Test identification parade was not conducted by the
Investigating Officer and, therefore, identification of culprits is
very remote;
vi. Having considered all the said aspects, the trial Court acquitted
the accused and there is no error in it; and
vii. Learned counsel for the respondents - accused also relied on the
principle laid down by the Hon'ble Supreme Court in Meharaj
Singh (L/Nk.) v. State of U.P. 1, Narendrasinh Keshubhai
Zala v. State of Gujarat2; B.N. Singh v. State of Gujarat3
and Ravasaheb @ Ravasahebgouda etc. v. State of
Karnataka 4.
With the aforesaid submissions, learned counsel for the respondents -
accused sought to dismiss the appeal.
15. In view of the aforesaid submissions, the point that arises
for consideration is:
. (1994) 5 SCC 188
. 2023 INSC 241
. 1990 SCC (Cri) 283
. (2023) 5 SCC 391
KL,J & JS,J
Whether the acquittal of the accused for the aforesaid
offences is sustainable, both on facts and in law?
16. As already stated above, the prosecution examined PWs.1
to 22. PW.1, the complainant, is the wife of deceased No.3 and
daughter-in-law of deceased Nos.1 and 2; PW.2, the daughter of
deceased Nos.1 and 2 is the circumstantial witness; PWs.3 to 6 are
eye-witnesses to the incident; PWs.7 and 8 are the panch witnesses for
scene of offence observation-cum-seizure panchanama; PW.9 is the
panch witness for inquest of deceased No.1; PW.10 is panch witness
for inquest of deceased Nos.2 and 5; PW.11 is panch witness for
inquest of deceased No.3; PW.12 is panch witness for inquest of
deceased No.4; PWs.13 and 14 are panch witnesses for confession-
cum-seizure panchanama of accused Nos.1 to 8; PW.15 is the doctor,
who treated accused No.1 for the injuries he sustained in the incident
and issued Ex.P41 - wound certificate; PW.16 is the doctor, who
conducted autopsy over the dead bodies of deceased Nos.1 to 5;
PW.17 is the Clues Team Officer, CCS, Hyderabad, who visited the
scene of offence and collected material objects; PW.18 is the Sub-
Inspector of Police, Amberpet Police Station, who conducted inquest
over the body of the deceased No.2; PW.19 is the Inspector of Police,
KL,J & JS,J
Saidabad Police Station, who conducted inquest over the bodies of
deceased Nos.4 and 5; PW.20 is the Sub-Inspector of Police,
Amberpet Police Station, who conducted inquest over the body of the
deceased No.3; PW.21, the Inspector of Police, Amberpet Police
Station, is the first Investigating Officer, who issued FIR and
conducted inquest over the body of deceased No.1; and PW.22 is the
Investigating Officer, who recorded the statements of witnesses and
laid charge sheet.
17. The aforesaid facts would reveal that in the present case,
there are five (05) murders. All the five deceased belongs to one
family. Thus, it is a 'family murder case'.
18. MOTIVE:
i) According to the prosecution, it is not in dispute that the
marriage of accused No.1 with deceased No.5 was performed in the
month of November, 2008. Accused No.1 is nephew of deceased
No.2. After their marriage, they lived together for two (02) months
and, thereafter, disputes arose between them. According to PWs.1 and
2, accused No.1 and his family members demanded additional dowry
and parents and brothers of deceased No.5 refused for the same.
KL,J & JS,J
Therefore, disputes arose between them, and deceased No.5 came
back and started residing with her parents.
ii) Deceased No.5 has also filed a complaint against accused
No.1 and his parents and the same was registered as a case in Crime
No.176 of 2009 for the offences under Sections - 498, 420 and 323 of
IPC and Sections - 4 and 6 of the Dowry Prohibition Act, 1961.
Deceased No.5 also filed a petition under Section - 125 of Cr.P.C.
against accused No.1 and his parents vide M.C. No.200 of 2009
seeking maintenance. The mother of accused No.1 used to attend the
said maintenance case. Learned Magistrate also allowed the said
M.C. and granted an amount of Rs.4,000/- per month to deceased
No.5 towards maintenance along with arrears for ten (10) months.
Accused No.1 did not pay the said amount. Therefore, deceased No.5
has issued legal notice to accused No.1 demanding to pay the said
monthly maintenance amount including arrears. Even, accused No.1
was arrested and was released on bail in the said maintenance case.
iii) During pendency of the aforesaid M.C., in one of the
hearings, after attending the Court, the mother of accused No.1 met
with an accident, sustained head injury, and died. Despite knowing
the said incident, the parents and other family members of deceased
KL,J & JS,J
No.5 did not attend her funeral. Accused No.1 is nephew of deceased
No.2. Due to the said incident, the father of accused No.1 went into
depression. Accused No.1 also suffered financially due to the
aforesaid cases. Therefore, accused No.1 and his family members bore
grudge against deceased No.5, her parents and brothers thereby
decided to eliminate them. Accused No.1 conducted a recce and
accused No.2 observed and ascertained the presence of the deceased
in the house on the date of incident and, thereafter, they have
committed murder of the deceased.
iv) To prove the said aspects, the prosecution examined PW.1,
the wife of deceased No.3, PW.2, daughter of deceased Nos.1 and 2
and sister of deceased Nos.3 to 5.
v) PW.2, sister of deceased No.5 in her cross-examination
categorically admitted that deceased No.5 was suffering from hearing
problem. Both PWs.1 and 2 specifically deposed about the said
aspects. Even then, nothing contra was elicited from them during
cross-examination. Thus, there is no dispute about the marriage of
deceased No.5 with accused No.1 and that accused No.1 is the nephew
of deceased No.2. There were disputes between the family of
deceased No.5 and the family of accused No.1. Deceased No.5 started
KL,J & JS,J
living with her parents. She has lodged a complaint against accused
No.1 and his parents and a case in Crime No.176 of 2009 was
registered against them for the offences mentioned above. She has
also filed a petition seeking maintenance. When accused No.1 and
his parents were returning home, mother of accused No.1 met with an
accident, sustained head injury, and died, due to which, the father of
accused No.1 went into depression. Therefore, all the said aspects
would prove the motive on the part of accused Nos.1 to 4 in
commission of the aforesaid offences. Thus, the prosecution proved
the motive beyond reasonable doubt.
19. EVIDENTIARY VALUE:
i) PW.1, wife of deceased No.3, deposed that the marriage of
deceased No.5 with accused No.1 was held during November, 2008.
Her marriage with deceased No.3 was performed on 19.02.2010. She
further deposed that there were matrimonial disputes between accused
No.1 and deceased No.5 and that deceased No.5 started living with her
parents. The reason for arising disputes between them was that
accused No.1 demanded for additional dowry, for which the parents of
deceased No.5 did not accept. She further deposed about lodging of
complaint against accused No.1 and his parents for the aforesaid
KL,J & JS,J
offences and filing of petition under Section - 125 of Cr.P.C. seeking
maintenance against accused No.1 and his parents and that learned
Magistrate awarded monthly maintenance of Rs.4,000/- to deceased
No.5 and also arrears and that accused No.1 failed to pay the same.
a) She further deposed that on 30.05.2010 at about 6.15 A.M.,
herself, her parents-in-law, her husband, her sister-in-law and brother-
in-law, (deceased Nos.1 to 5) were present in their house. At that
time, her father-in-law opened the main gate of their house and kept
the vehicles outside the house. While he was entering the house.
Accused Nos.1 to 4 forcibly trespassed their house. Accused No.1
entered their house first. They have bolted the gate of the house.
Then, accused No.1 first hit her father-in-law (deceased No.1) with an
iron rod on his head. Her father-in-law started shouting and then her
mother-in-law (deceased No.2) came into the Verandah. Accused
No.1 hit her also with the same iron rod on her head. Her parents-in-
law fell down and sustained serious bleeding injuries on their head.
Then, deceased Nos.3 to 5 came to the verandah from inside the
house, then all accused Nos.1 to 4 began to beat deceased Nos.3 to 5
with iron rods and sticks. Deceased Nos.3 to 5 all fell collapsed on
the floor. She was also present there by the time her husband entered
KL,J & JS,J
into the verandah. He had pushed her into the Hall adjacent to it and
bolted the grilled gate and then, accused Nos.1 to 4 left the house.
Then, she informed about the incident to the husband of her sister-in-
law, namely Mr. Md. Athar, who was residing near to their house,
over cell phone of her father-in-law. Then, she informed about the
incident to her father over cell phone. Mr. Md. Athar came there
within 5 to 10 minutes. Later, her father came within 5 or 10 minutes
of Md. Athar reaching. Mr. Athar called for the 108 Ambulance.
Thereafter, the police also came there. After the police coming there,
she preferred report to the police by sitting in the house opposite their
house. One police constable drafted the report and she signed on it.
Ex.P1 is the said report dated 30.05.2010 and it contains her signature.
The police also examined her. Deceased Nos.1 to 4 died on the spot,
whereas deceased No.5 succumbed to death after three (03) days
during the treatment in Osmania General Hospital.
b) During cross-examination, she admitted that since January,
2010, during her marriage engagement, she learnt about the affairs of
the family of her husband. Prior to that, she was oblivious to any of
those affairs. For the first time she spoke about the said fact in the
Court. In Muslim custom, Muslim bride shall not participate in the
KL,J & JS,J
marriage talks, proposals etc. Prior to her marriage, she did not meet
any of the male members in the family of her husband. It is a
customary practice in Muslims that after the marriage, the husband
and wife shall visit the house of in-laws of the husband on every
Friday and staying there till Monday for a period of five (05) weeks.
Prior to her marriage, she was not acquainted with accused Nos.1 to 4
as they were not related to her or known to her. Accused Nos.1 to 4
did not attend or participate in her marriage. Accused Nos.1 to 3
visited the house of her in-laws for 2 or 3 times after her marriage, but
the same was not stated by her in any of her statements before the
police or before the Magistrate.
c) She further admitted that when she being Pardanashin lady,
never came out before strangers including the accused, who are also
strangers to her. She did not meet accused Nos.1 to 3 when they came
to her in-laws' house for 2 or 3 times, but she saw them. Since there
were disputes between accused No.1 and deceased No.5, accused
Nos.1 to 3 and their family members were not invited to the house of
her husband for any purpose. In her report to the police and in her
statements to the police and the Magistrate, she did not state how she
learnt about the said disputes and that how she learnt about the names
KL,J & JS,J
of accused Nos.1 to 4. After her marriage, she never visited the house
of accused Nos.1 to 3 along with her husband. She is not having any
acquaintance with lady members of the house of accused Nos.1 to 3.
The width of the gate way of her in-laws' house is about 5 feet. The
distance between the gate and the verandah of her in-laws' house is
about 10 to 12 feet. There was Chetak Scooter between the verandah
and the said gate. There was another two-wheeler also before kitchen
room of the said house. Kitchen room is situated at the left side of the
verandah. After satisfying herself with regard to the contents of
Ex.P1, she signed on it. Her third language is Telugu and, therefore,
she knows Telugu a little.
d) She further admitted that after narrating the entire incident,
Ex.P1 was prepared and she signed on it. At the time of preparing
report to the police in Ex.P1, her father, LW.2 - Md. Athar and her
sister-in-law (PW.2) were present beside her. She preferred Ex.P1 at
about 10.00A.M., on the date of offence. Before her preferring report
to the police, her father, LW.2 - Md. Athar and PW.2 came and talked
with her and there was discussion among them. In Ex.P1, it is not
specifically stated that she witnessed the incident and that she did not
give the names of accused Nos.3 and 4. She did not go to Osmania
KL,J & JS,J
General Hospital on that day. In Ex.P1 and in her statements before
the police and the Magistrate, she did not state that she contacted Mr.
Md. Athar with the cell phone of her father-in-law.
e) She further admitted that she remarried again after the
incident. Her second husband is related to her prior to her marriage
with him. Her second marriage was performed on 02.03.2011.
However, she denied the suggestion that she was having affair with
her second husband prior to marrying him and that she was not
interested in marrying her first husband. She was not called by the
police for identifying any of the accused. She did not see accused
Nos.1 to 4 subsequent to the date of incident i.e., 30.05.2010 till the
date of her deposition. In her report to the police or in her statement
to the police or to the Magistrate, she did not give the details of cell
phone of her father-in-law through which she called Mr. Md. Athar
and her father. In her statement to the police and in her report to the
police, she did not state that at what times after the incident, LW.2 -
Md. Athar and her father reached the scene of offence. In her report to
the police and in her statements to the police, she has not stated about
Mr. Md. Athar calling for 108 Ambulance and later police coming to
the scene of offence etc., and that after a constable drafting a report
KL,J & JS,J
she signed on it. She was examined by the police in front of the house
of her in-laws and that her statement was recorded in Telugu language
on the same day.
ii) PW.2 is the daughter of deceased Nos.1 and 2 and sister of
deceased Nos.3 to 5. She deposed that during the month of
November, 2008, the marriage of accused No.1 with deceased No.5
was performed. Accused No.1 treated her sister properly for three
months and later he demanded additional dowry and sent her to their
parents' house for bringing additional dowry. She has also deposed
about lodging of complaint by deceased No.5 and even filing of
maintenance case and awarding of Rs.4,000/- towards monthly
maintenance and that not paying the same by accused No.1 and
sending legal notice to him for payment of the same etc.
a) She further deposed that on 30.05.2010 morning at about
7.30 A.M., when she was at her house, PW.1 informed her by
telephone that accused No.1 and his family members attacked her
parents, her brothers and sister. She and her husband rushed to her
parents' house wherein they found her parents, brothers and sister
were lying on the floor at verandah of her parents house with bleeding
injuries. Within five minutes of them reaching her parents' house, the
KL,J & JS,J
police came there and took all the injured persons to the Osmania
General Hospital. She also went to the said hospital, where the
doctors declared deceased Nos.1 to 4 died. The doctors administered
treatment to her sister and she succumbed to injuries two days after
the incident while undergoing treatment. Nobody was there in the
house of her parents.
b) During cross-examination, she admitted that she pursued
studies till her Intermediate. From the date of her marriage with Md.
Athar, she is staying in his house. Her marriage was performed on
16.07.2006. She knows the business transactions of her father and
brothers. Her father and brothers are having properties at Ismail
Nagar, Yerrakunta, Barkas. In the cases filed against accused No.1 by
her sister, she was not cited as witness. She is living separately away
from her parents and she never attended the Court with respect to the
said case between her sister and accused No.1. She has no personal
knowledge with regard to the facts of the said case filed by deceased
No.5. Her sister, deceased No.5, was suffering from hearing problem.
There was no good relationship between the family of accused and
family of her parents on account of the accused family not taking
deceased No.5 to their family. The mother of accused No.1 died in
KL,J & JS,J
the month of April, 2010. Despite knowledge of the said death, her
parents and her brothers did not attend the funeral. She did not state
in her statement to the police that on 30.05.2010 at 7.30 A.M., she
received information from PW.1 to her phone about the incident.
Since the police did not ask her, she had not stated the same to them.
She conveyed to the police that she learnt about the incident on
30.05.2010 at 7.30 A.M. However, she denied the suggestion that the
accused have nothing to do with the murders of deceased and that
since the accused are having disputes with her father and brothers
regarding the property at Ismail Nagar, they murdered the deceased
Nos.1 to 5 and that they foisted the present case against accused Nos.1
to 5 by taking advantage of the said disputes between accused No.1
and her sister. Her statement was recorded at Osmania General
Hospital by the police. She was examined by the police only one
time. Her husband is the only earning member of her family and he
used to get Rs.6,000/- per month as salary. Betrothal ceremony of her
sister-in-law was performed in a grand manner on 05.06.2011. She
was at the scene of offence for ten minutes after reaching there.
iii) PW.3 is the neighbor of the deceased. He deposed that his
house is opposite to the house of deceased and he knows deceased
KL,J & JS,J
No.2, wife of deceased No.1. He also knows the family members of
deceased No.1 i.e., Md. Abdullah Biya Bini, Md. Kirmani and Neha
Afrin, deceased Nos.1 to 3. Deceased No.1, his wife, sons and
daughter are no more. He does not know the son-in-law of deceased
No.1, by namely Syed Jahangir. He never saw them. His daughter-in-
law informed him that there was a quarrel in the house of deceased
No.1, he opened the door of the window of his house and noticed two
women in Burkha dress in front of the house of deceased No.1. Then,
he tried to go to the house of deceased No.1, but his grandson, Md.
Kaleem, stopped him. Then, he did not go. In the meanwhile, two
males came out from the house of deceased No.1 and left the place
and those two women also followed them. He did not witness the
incident. Thus, the prosecution declared him hostile.
iv) PW.4 is another neighbor of the deceased. His house is
adjacent to the house of deceased No.1 on its right side while facing
towards the house of deceased No.1. He knows deceased No.1, his
wife, sons and daughter. He does not know the son-in-law of
deceased No.1. He never saw him. He did not attend the marriage of
deceased No.5. He does not know accused Nos.1 to 9 who are present
in the Court hall. Deceased No.1, his wife, his two sons and his
KL,J & JS,J
daughter are no more alive. About one year ago at about 7.45 or 8.00
A.M., there was a pool of crowd and police personnel in the front of
deceased No.1's house he also found an Ambulance approaching the
house, he learnt that deceased Nos.1 to 5 were murdered. The public
were talking that the son-in-law of deceased No.1 committed those
murders. He did not witness the occurrence in this case. The police
did not examine him, but somebody has taken his name and other
particulars. Thus, he did not support the prosecution case and,
therefore, prosecution declared him hostile.
v) PW.5 and PW.6, who are house-wife and tailor by
profession, respectively, did not support the prosecution case and,
therefore, they were declared hostile by the prosecution.
vi) PW.7 is the panch witness for scene of offence-cum-seizure
panchanama. He deposed that on 30.05.2010, he went to the house of
deceased No.1 on hearing that there were some offences taken place
there. He went there at about 9.00 or 10.00 A.M. and by that time, the
police were there at that house. The police requested him to act as
panchayatdar for the scene of offence. PW.8 was also there as
panchayatdar. By the time they reached, the police have already
KL,J & JS,J
commenced observation of scene of offence. In their presence, the
police also observed the scene of offence. The police prepared the
scene of offence observation panchanama, he and PW.8 signed on it.
Ex.P6 is the scene of offence panchanama dated 30.05.2010 and
Ex.P7 is the rough sketch of the scene of offence prepared in their
presence. He found the blood stains on the walls of the said house.
He cannot say what the articles that were seized by the police at the
scene of offence since he left the place after signing on Exs.P6 and 7.
At this stage, the prosecution declared him as hostile and cross-
examined him.
a) During the cross-examination by learned Additional Public
Prosecutor, PW.7 admitted that the police seized the pieces of broken
bangles (MO.2) at the scene of offence.
b) During the cross-examination by the accused, this witness
admitted that the house of deceased No.1 is surrounded by residential
houses. There are about 25 houses between his house and the house
of deceased No.1. The Amberpet police used to call him as
panchayatdar whenever any incident takes place in that locality.
About 10 to 25 people were inside the house of deceased No.1. Later
on, about 500 to 600 people gathered there. There was lot of
KL,J & JS,J
commotion at that house. Ex.P6 was not drafted on his dictation or on
the dictation of his friend (PW.8). He was there for about 10 to 15
minutes. Since the police asked him to sign on Exs.P6 and P7, he
signed on them. He does not know Telugu contents in Ex.P6. He is in
the habit of putting the date under his signature. In Ex.P7, he did not
put the date under his signature. His particulars are not mentioned in
Ex.P7.
vii) PW.8 is another panch witness for recovery of MOs.1 to 3.
He deposed that the house of deceased No.1 is situated 3 or 4 houses
after the Hotel in which he was working. The deceased is no more.
On 30.05.2010, the police called him to the house of deceased No.1
for the purpose of conducting scene of offence observation
panchanama. Therefore, he went there. PW.7 was also present. In
their presence, the police conducted scene of offence panchanama and
the same was prepared in Telugu. He signed on it. Ex.P6 is the scene
of offence panchanama and it contains his signature. He does not
know whether any rough sketch of scene of offence was prepared or
not. There were two vehicles at the scene of offence. There were
blood stains at the scene of offence. The police have seized blood
stains by collecting it with white cloth. The police also seized blood-
KL,J & JS,J
stained human hair, one packet of chilli powder, broken bangle pieces
and a ladies chain. MO.1 is some hair, MO.2 is some broken bangle
pieces, MO.3 is one packet of chilli powder.
a) During cross-examination, he has admitted that he cannot
read and write Telugu Language. He does not know the contents of
Ex.P6 since it is written in Telugu language. PW.7, elderly person in
their Amberpet locality did not come to the scene of offence along
with him. MOs.1 to 3 were not sealed at the time of seizure. The said
Chilli powder and bangles are available in the local market.
b) During cross-examination, two Specific questions were put
to PW.8 for which gave answers. The said questions and answers are
as follows:
"Q. You are speaking before the Court as tutored
by the police. What do you say?
Ans: Yes.
Court Question: What is meant by "Yes"?
Ans: Witness did not give any answer for this
question of the court.
Court Question: The counsel for the accused
suggested to you that you are speaking before the
court as tutored by the police. What do you say?
Ans: No. "
KL,J & JS,J
viii) PW.9 is the panch witness for inquest of deceased No.1.
He deposed that he knows deceased No.1 and he was present at
Osmania General Hospital at the time of inquest over the dead body of
deceased No.1. LW.14 was also present at that time. The police
prepared inquest report. At the time of inquest, they have opined that
deceased No.1 died due to the injuries sustained by him when he was
battered with iron rods. He and LW.14 attested inquest report
(Ex.P8). The police seized the wearing clothes of deceased No.1. He
cannot identify the said clothes seized by the police due to lapse of
time.
a) During cross-examination, he has admitted that he did not
read the contents of ex.P8 and, therefore, he cannot give the details of
each column of Ex.P8.
ix) PW.10 is the panch witness for inquest of deceased Nos.2
and 5. He deposed that he knows deceased No.2 and he was present at
Osmania General Hospital at the time of inquest over the dead body of
deceased No.2. LW.16 - Mr. Mirza Akhil Baig was also present along
with her at the time of inquest. They opined that deceased No.2
succumbed to her injuries. She cannot say how deceased No.2
received those injuries. She signed in the inquest report (Ex.P9). The
KL,J & JS,J
police seized the wearing clothes of deceased No.2. MO.4 is the
green colour polyester pyjama of deceased No.2, while MO.5 is her
green colour polyester kurtha, which was seized by the police.
a) She further deposed that she also knows deceased No.5.
Two days after the inquest of deceased No.2, the inquest over the dead
body of deceased No.5 was also conducted at Osmania General
Hospital and at that time also she was present. They opined that
deceased No.5 also died due to the injuries sustained by her. They do
not know how deceased No.5 sustained injuries. She signed on
Ex.P10 - inquest report, dated 02.06.2010.
b) However, during cross-examination, she has admitted that
she does not know the contents of Exs.P9 and P10.
x) PW.11 is the panch witness for inquest of deceased No.3.
He deposed that he is the resident of Premnagar, Amberpet,
Hyderabad and he knows deceased No.3. About one year ago, it may
be on 30.05.2010, he went to Osmania General Hospital to see the
dead body of deceased No.3 and the police have conducted inquest
over the dead body of deceased No.3 in his presence and in the
presence of LW.19. They have signed on Ex.P11 - inquest report
KL,J & JS,J
dated 30.05.2010. They have opined that the deceased died due to
injuries sustained by him when he was beaten by somebody. At the
time of inquest, the police seized a pant and MO.6 - cut drawer of
deceased No.3. But, he cannot identify the said pant.
a) During cross-examination, he has admitted that since there is
his signature on the slip attached to MO.6, he identified it. MO.6 is
not sealed.
xi) PW.12 is panch witness for inquest of deceased No.4. He
deposed that he is the resident of Patelnagar, Amberpet, Hyderabad.
He knows deceased No.4. He was present at the time of inquest of
dead body of deceased No.4 at Osmania General Hospital. LW.21
was also present. They have opined that deceased No.4 died of
injuries sustained by him and beaten by rods. Ex.P12 is the inquest
report of deceased No.4 and it contains his signature and the signature
of LW.21. The police seized one cut baniyan and track pant on the
dead body of deceased No.4. MO.7 is the track pant, while MO.8 is
the cut baniyan.
a) During cross-examination, he has admitted that he cannot
give the contents of Ex.P12 column wise. In Ex.P12, injuries of the
KL,J & JS,J
deceased were noted. Clothes, like MOs.7 and 8 can be available in
the local market. MOs.7 and 8 were not sealed.
xii) PWs.13 and 14, panch witnesses for confession-cum-
seizure panchanama of accused Nos.1 to 8. Since they did not
support the prosecution case, they were declared hostile and were
cross-examined by learned Additional Public Prosecutor.
a) However, PW.14 deposed in his chief examination that
Exs.P13 toP20 are his signatures on eight confessional panchanamas
dated 02.06.2010, while Exs.P21 to P26 are his signatures on six
seizure panchanamas, dated 02.06.2010.
b) PW.15 admitted during cross-examination by learned
Additional Public Prosecutor that Exs.P27 to P34 are his signatures on
eight confessional panchanamas, dated 02.06.2010, while Exs.P35 to
P40 are his signatures on six seizure panchanamas, dated 02.06.2010.
xiii) PW.15 is the doctor, who treated accused No.1 for the
injuries he sustained in the incident. He deposed that on the
requisition of Amberpet Police Station and brought by police
constable (7781), he examined accused No.1 and found the following
injury:
KL,J & JS,J
One laceration of 1x½ x½ cm. on the left side of the head.
The said wound was sutured outside. According to him, the said
injury is simple in nature. He referred the patient to Neurosurgeon.
He issued Ex.P41 - wound certificate.
a) During cross-examination, he has admitted that in Ex.P41 he
has not noted whether the wound found by him was fresh or not, and
learnt the said wound was fresh. If the wound is up to 10 hours, they
would describe it as fresh wound. He has not mentioned the
identification marks of the patient in Ex.P41. The police constable
who accompanied the patient under Ex.P41 informed him that the said
patient was an accused person.
xiv) PW.16 is the doctor, who conducted autopsy over the dead
bodies of deceased Nos.1 to 5. She deposed that on 30.05.2010 at
2.00 P.M., she received requisitions from the Inspector of Police,
Amberpet Police Station, to conduct post-mortem examination over
four dead-bodies of deceased Nos.1 to 4 and accordingly she
conducted post-mortem examinations on them.
a) During post-mortem examination, she found the following
ante-mortem injuries on the dead body of deceased No.1-
KL,J & JS,J
1. An obliquely placed laceration of 5x3cm cavity deep with
seeping out of brain matter on the right parietal region and with
fracture of that part of skull;
2. A horizontally placed laceration of 4x2 cm bone deep on the
right occipital region 5 cm below the right ear;
3. A horizontal placed laceration of 1x5x0.5cm bone deep on right
occipital region 3 cm below the above injury;
4. An L-shaped laceration of 2x1.5cm cavity deep i.e., fracture of
the skull on the left parietal frontal region 8 cm above the ear;
5. A vertical shaped laceration of 6x0.5cm bone deep 3 cm inner
to the above injuries on the left parietal region;
6. A contusion of 4x3 cm on the left cheek bone;
7. A contusion of 2x0.5 cm above the lateral end of right clavicle;
8. A contused abrasion of 8x2 cm on the back of the right fore-arm
a defence injury;
9. An abrasion of Ix1 cm on the right flank;
10. A contusion of 4x0.5 cm on the middle of the front of the right
thigh;
11. Multiple abrasions each of 0.25 cm x 0.25 cm on the
metacarpophalangeal joints on the dorsum of right hand;
KL,J & JS,J
12. A contused abrasion of 15x1 cm on the back left fore-arm;
13. Diffuse scalp contusion present all over the skull with an under
lying fissured fracture presently extending from left temporal to
right temporal area where it is intersecting the sutural fracture
of temporal bone on the right side of skull which are extending
into the base of skull in the middle and posterior cranial fossa;
14. Diffuse subdural and subarachnoid hemorrhage present all over
the brain with laceration of right parietal region of the brain;
According to her, the cause of death is due to multiple blunt injuries to
head and accordingly she issued Ex.P42 - post-mortem examination
certificate.
b) On the same day, she conducted post-mortem examination
over dead body of deceased No.2, and found the following ante-
mortem injuries:-
1. A vertical placed split laceration of 5x1 cm bone deep on the
right parietal area right to the mid line;
2. A laceration of 1x0.5 cm scalp deep on left side of the fore-
head;
3. An obliquely placed lacerated wound of 4x0.5 cm scalp deep on
the right parietal region 2cm behind the first injury;
KL,J & JS,J
4. An avulsion laceration of 12x6 cm bone deep with a flap of 5
cm with an underlying scalp contusion and depressed fracture
of 3x1.5 cm x 0.5 cm on right parietal temporal region present
1.5 cm lateral to injury No.1;
5. A horizontally placed laceration of right ear of 5x2 cm x cavity
deep with surrounding contusion;
6. A vertically placed laceration of 5x0.5 cm x scalp deep on the
right occipital region 4 cm behind right ear;
7. A split laceration of 1x1 cm on right parietal prominence;
8. A vertical placed laceration of 7x1 cm x scalp deep on right
occipital region;
9. A horizontally placed laceration of 2x1 cm x bone deep on the
right parental occipital region 5 cm above the injury No.5;
10. An obliquely placed laceration of 5x1 cm x bone deep on the
vertex;
11. A vertical plated laceration of 6x0.5 cm x bone deep on the left
occipital region behind the ear;
12. A contusion of 5x2cus on the right shoulder;
13. Diffuse scalp contusion present all over the brain with an
underlying depressed fracture of 7x5 cm on the right temporal
KL,J & JS,J
area with fissured fracture of temporal area on the left side of
shall whose fracture lines extend into the base of the skull from
the left to right in the middle cranial fossa with closed
comminuted fracture of right middle and posterior cranial fossa;
and
14. Diffuse subdural and subarachnoid hemorrhage present all over
the brain.
According to her, the cause of death was due to multiple blunt injuries
to the head and accordingly she issued Ex.P43 - post-mortem
examination report.
c) On the same day, she also conducted post-mortem
examination over dead body of deceased No.3, and found the
following ante-mortem injuries:-
1. An obliquely placed laceration of 5x1cm skin deep on the right
fore head at hair line;
2. A contusion of 2xt cm on the right temple;
3. 3 parallelly placed laceration of each of 3x0.5x skin deep, 1x1
cm skin deep and 1x1 cm skin deep on the right eye brow with a
gap of 0.5 cm in between;
KL,J & JS,J
4. A contusion of 0.5x0.25 cm on the left forehead and 1x1 cm on
the tip of the nose;
5. A laceration on 1x1 cm muscle deep on the chin with a
surrounding contusion of 3x3 cm;
6. A split laceration of 6x4 cm x bone deep on the left parietal
prominence;
7. A vertically placed laceration of 5x0.5 cm x bone deep on the
left side of the vertex;
8. A vertically placed laceration of 1x1 cm x scalp deep on the
vertex;
9. An obliquely placed laceration of 4xl cm x scalp deep and
another of 4x2 cm x scalp deep on the right side of vertex;
10.Diffuse scalp contusion present all over the skull with
comminuted fracture of all the skull bones including the
calvaria and the base of the skull with subdural and
subarachnoid hemorrhage present all over the brain;
11. An abrasion of 2x1 cm on the left shoulder and 1x1 cm on the
top of the left shoulder;
12.A contusion of 3x3 cm on the left upper arm;
KL,J & JS,J
13.An obliquely placed contusion of 18x2 cm on the right back of
chest and another of 10x2 cm x 4 cm above it which is present
parallelly;
14. A semi-circular contusion of 5x4 cm of right mid arm;
15.A contusion of 2x1 cm on the middle of right forearm; and
16.A contusion of 1.5 cm x 1 cm on the right index finger on the
palmer aspect;
According to her, the cause of death was due to multiple blunt injuries
to the head and she issued Ex.P44 -post-mortem examination report.
d) On the same day, she also conducted post-mortem
examination over dead body of deceased No.4, and found the
following ante-mortem injuries:-
1. A laceration of 1x0.5 cm x scalp deep on the left area near hair
line;
2. A vertical placed laceration of 2x0.5 cm x scalp deep on the left
parietal area and of 3x0.5 cm x scalp deep on the left parietal
occipital area;
3. A horizontal placed laceration of 4x1.5cm x bone deep on the
left parietal and of 3x0.5cm x scalp deep on the left parietal
occipital area;
KL,J & JS,J
4. A stellate shaped laceration of 6x5 cm on left occipital area and
another placed vertically of 3x0.5 cm on the left occipital area;
5. A horizontally placed laceration of 2.5x0.5 cm on the vertex
and another placed vertically of 3x0.5 cm x scalp deep on the
right vertex and another placed vertically of 4x2 cm x scalp
deep on the right parietal occipital area;
6. A horizontally placed laceration of 7x4 cm x bone deep on the
right parietal occipital area;
7. A horizontal placed laceration 5x0.5cm x scalp deep on the
right mastoid 2 cm behind the right ear;
8. A horizontal placed laceration of 3x05cm x scalp deep present 1
cm below the above injury;
9. 2 parallelly placed contusion each of 5x1 cm each with a gap of
1 cm on the back of neck;
10.Another parallelly placed contusion of 4x1 and 6x0.5 cm on the
left side of the back of neck;
11. A contusion of 0.5x0.5 cm on the left mid clavicle;
12. A contused abrasion of 2x0.5 cm on the right first inter digital
left;
KL,J & JS,J
13. An abrasion of 1x1 cm on the right knee, 2x1 cm below the
right knee4 and another vertical placed contusion of 3x1 cm on
the front of right leg and 0.5x0.5cm on the left knee;
14.Diffuse scalp contusion present all over the skull with
comminuted fracture of the skull bones on either side including
both calvaria and base of the skull which is obliquely fractured
from left frontal to right occipital region across the 3 cranial
dossae. Diffuse subdural and sub arachnoid having present all
over the brain.
According to her, the cause of death was due to multiple blunt injuries
to the head and issued Ex.P43 - post-mortem examination report.
e) PW.16 further deposed that on 02.06.2010 she received
requisitions from the Inspector of Police, Amberpet Police Station, to
conduct post-mortem examination over the dead-body of deceased
No.5 and accordingly she conducted post-mortem examinations on her
and found the following ante-mortem injuries:-
1) An obliquely placed sutured wound of 9x7 cm with sutures on
right occipital area;
2) A sutural wound of 4cm with 3 sutures on right parietal
prominence;
KL,J & JS,J
3) A "L" shaped sutured wound of 7cm and with 5 sutures of each
limb of L shape on the vertex;
4) A sutured wound of 4 cm with 2 sutures on the left parietal
prominence;
5) An abrasion of 1x0.5 cm on the left side of fore-head;
6) Diffused scalp contusion present all over the brain;
7) Extradural Hemorrhage present on right occipital region and
diffuse subdural and subarachnoid hemorrhage present all over
the brain; and
8) An obliquely placed fissured fracture of the base of the skull in
the posterior cranial fossa on the right side;
According to her, the cause of death was due to multiple blunt injuries
to the head. Deceased No.5 expired at Osmania General Hospital on
02.06.2010 at 4.30 A.M. She issued Ex.P46 - post-mortem
examination.
f) She further deposed that according to her, out of six (06)
weapons shown to her, two iron rods, one stick and blunt portion of
the hunting sickle and GI pipes can cause the ante-mortem injuries
noted in Exs.P42 to P46.
KL,J & JS,J
g) During cross-examination, she admitted that the lacerated
injury can be possible by both short weapons and blunt objects, but
usually those injuries can be possible by blunt objects. By seeing the
lacerated injury, one cannot say that the said injury was caused by
particular type of weapon, but it can be said that the said injury was
caused by a blunt object or blunt weapon only. She has shown only
the blunt objects among the weapons shown to her as the weapons that
can cause the injuries as noted inExs.P42 to P46.
xv) PW.17 is the Clues Team Officer, CCS, Hyderabad. He
deposed that he visited the scene of offence along with his
photographer, finger print expert and assisted the Investigating Officer
in collecting the physical evidence from the scene of offence by using
scientific gadgets, such as blood evidence collection kit, advance
physical evidence collection kit, poly ray (Multi-wave length light
source), Euro light etc., They found blood stains in the scene of
offence inside the compound wall at various places and blood samples
were collected with swabs, control swabs were also collected, blood
strained hair found at the scene of offence, blood stain cut hairs etc.,
were collected.
KL,J & JS,J
a) During cross-examination he admitted that he was not
examined by the Investigating Officer in this case and that there is no
documentary evidence to show that he assisted Investigating Officer
in collecting physical evidence.
xvi) PW.18, Sub-Inspector of Police, Amberpet Police Station,
deposed that on 30.05.2010 he conducted inquest over dead body of
deceased No.2 at Osmania General Hospital in the presence of
panchayatdars i.e., PW.10 and LW.16 and prepared inquest report as
in Ex.P9. He also seized clothes of deceased No.2, which are marked
as MOs.4 and 5. At the time of inquest panchayatdars opined that she
succumbed to her injuries upon being battered by somebody.
a) During cross-examination nothing contra was elicited from
him.
xvii) PW.19, Inspector of Police, deposed that he conducted
inquest over the dead body of deceased No.4 on 30.05.2010 in the
presence of PW.12 and LW.21 under Ex.P12 and seized his clothes
which are MOs.7 to 9. The panchayatdars opined that the deceased
succumbed to the injuries sustained by him on his head when battered
by somebody.
KL,J & JS,J
a) He also conducted inquest over the dead body of deceased
No.5 on 02.06.2010 in the presence of PW.10 and LW.22, who opined
that the deceased succumbed to injuries on the head when she was
battered by somebody. He prepared inquest report vide Ex.P10.
b) During cross-examination, he admitted that Ex.P12 was
drafted by his Sub-Inspector of Police, Mr. Naveen Kumar and signed
by him. He did not issue any written summons to mediators of both
Exs.P10 and P12.
xviii) PW.20, Sub-Inspector of Police, deposed that he
conducted inquest over the dead body of deceased No.3 on 30.05.2010
in the presence of PW.11 and LW.19 under Ex.P11 and seized his
clothes which are MOs.6 and 10. The panchayatdars opined that the
deceased died due to injuries sustained by him on his head.
a) During cross-examination, he admitted that he did not file
any document to show that he summoned mediators of Ex.P11.
MOs.6 and 10 were not sealed and that they are available in the local
market.
xix) PW.21, Inspector of Police, deposed that on receipt of
telephonic information regarding murder at Premnagar, Amberpet, he
KL,J & JS,J
went there and found five injured persons, among them, three are male
and two are female persons. He secured the services of 108
Ambulance and got them shifted to Osmania General Hospital,
Hyderabad. He preserved the scene of offence. On that day at about
10.00 A.M., he received written report from PW.1 vide Ex.P1 and
thereafter he registered a case in Crime No.207 of 2010 under
Sections - 452, 302 and 307 read with 34 of IPC, which is Ex.P47.
a) During cross-examination, he admitted that he has not noted
in Ex.P1 that he received Ex.P1 at the scene of offence. There is no
documentary evidence to show that he has deputed his subordinates to
preserve the scene of offence. With regard to receiving the telephonic
information on 30.05.2010, there is GD entry and also in Part-I CD.
In column No.3 of FIR under Ex.P47, they kept it blank. They have to
fill up all the columns in FIR. He does not remember whether he
received report from PW.1 at the scene of offence or at the police
station. In Ex.P8, the names of accused Nos.3 to 9 were not noted. In
Ex.P1, the names of accused Nos.3 to 9 were not noted. He did not
examine any relatives of victims and neighbours of victims at the time
of his visiting scene of offence on receipt of information.
KL,J & JS,J
b) He further admitted for the first time that at the time of
receiving Ex.P1, he learnt the names of assailants. At that time, local
people gathered. He did not obtain the signature of PW.1 in column
No.13 of the FIR.
xx) PW.22, the Investigating Officer, deposed that on
30.05.2010 as per the instructions of his DCP, East Zone, Hyderabad,
he took up investigation from PW.21. He visited the scene of offence
and conducted scene of offence observation panchanama-cum-seizure
panchanama in the presence of mediators, PWs.7 and 8 and also
drafted a rough sketch.
a) He further deposed that he examined and recorded the
statements of PW.1, LW.2 and PW.2 on 30.05.2010 under Section -
161 of Cr.P.C., PWs.3 and 4 on 31.05.2010, PWs.6 and 7 on
07.06.2010 and other witnesses. He also recovered the material
objects and seized under cover of panchanama.
b) During cross-examination, he admitted that presence of
PW.1 at the scene of offence prior to Ex.P1 is also not borne out in the
record. In the arrest card of accused No.2, it is shown as Syed
Sharfuddin and first alias name is Shafiuddin and second alias name is
not mentioned. After ascertaining all the details from the accused,
KL,J & JS,J
arrest card was issued. In his entire investigation, none of the
witnesses stated that Syed Sharfuddin or Sharfuddin has participated
in the commission of offence, but he stated that PW.1 has stated that
Shareef is one of the accused.
c) He further admitted that he did not collect how and when the
mother of accused No.1 died. He has not collected any document to
show that PW.1 was staying at her in-law's house. With the clue of
pair of chappals, one can detect the culprit. He has not used the pair
of chappals seized from the scene of offence to detect the culprit. He
did not conduct investigation with regard to subsisting matrimonial
relationship between accused No.1 and deceased No.5. He has not
sealed the seized items. The names of accused Nos.3 to 9 are not
noted in Ex.P1 and inquest reports under Exs.P8 to P12.
xxi) The aforesaid depositions would reveal that PW.1 is the
eye-witness to the incident. She is the wife of deceased No.3. In
Ex.P1 - complaint and also in her statement, she has narrated about the
incident.
xxii) Whereas, according to learned counsel for the respondents
- accused, she is an interested witness and, therefore, her evidence
KL,J & JS,J
cannot be believed. Further, in Ex.P1 - complaint, she has referred the
names of accused Nos.1 and 2 and she has not mentioned the names of
other accused. She has stated that accused Nos.1, 2 along with other
followers entered into the house, whereas in her deposition, she has
stated about the names of accused Nos.1 to 4. Thus, there is
improvement in her evidence and, therefore, she is a planted witness.
Further, there are contradictions in Ex.P1 as well as in her statement
recorded under Section - 161 of Cr.P.C. Therefore, on consideration
of said aspects, learned trial Court disbelieved the evidence of PW.1
and acquitted the accused.
xxiii) As discussed above, PW.1 is the wife of deceased No.3.
After the death of deceased No.3, she got married for the second time.
She has narrated the entire incident. Perusal of record would reveal
that she has not received any injuries. She has specifically deposed
that her husband pushed her into the hall adjacent to it and bolted the
grilled gate. During cross-examination, nothing contra was elicited
from her. Learned counsel for the accused suggested to her that she
was having an affair with the present/second husband prior to the
marriage with deceased No.3 and that she was not interested in
marrying deceased No.3. Thus, the defence taken by the accused is
KL,J & JS,J
contradictory. Therefore, they cannot contend that PW.1 is an
interested witness.
xxiv) PWs.5 and 6 stated before the police in their statement
recorded under Section - 161 of Cr.P.C. that they used to go to the
house of deceased No.1 to take Ayurvedic medicine for jaundice, and
on 30.05.2010, they went to the house of deceased No.1 for the
purpose of the said medicines. They have also stated about the death
of the said five persons including deceased No.1 and that they have
heard that accused No.1, son-in-law of deceased No.1, and his family
members committed murder of all the deceased due to matrimonial
disputes between accused No.1 and deceased No.5. Thereafter, they
have turned hostile and did not support the prosecution case.
xxv) As stated supra, the incident had occurred on 30.05.2010
and the depositions of PWs.5 and 6 were recorded on 24.06.2011 i.e.,
after about one year. Thus, the respondents - accused won over the
said witnesses, who are women.
xxvi) PWs.3 and 4 are neighbours of the deceased family.
Though they turned hostile, their evidence to the extent it is relevant
can be relied upon as held by the Apex Court in Ravasaheb @
Ravasahebgouda4, wherein it was held as under:
KL,J & JS,J
"41. Merely because no recovery was made from
anyone apart from Accused 2 and 4 would not
mean that others were not present at the scene of
the crime; simply because a number of witnesses
had turned hostile, does not on its own give a
ground to reject the evidence of PW 1; and that
PW 1 being the brother of the deceased and
therefore, is an interested as well a chance witness,
are untenable submissions. It is in the backdrop
that we do not find favour with the submissions of
Mr Nagamuthu S., and Dr K. Radhakrishnan,
learned Senior Counsel appearing for the
appellants that the conviction of eight persons
based on solitary evidence is not justified,
particularly when there is no vagueness in his
testimony with respect to the role ascribed to each
one of the accused."
PWs.3 and 4 have specifically deposed about the death of the
deceased. PW.3 specifically deposed that his daughter-in-law
informed him that there was a quarrel in the house of deceased No.1,
he opened the door of the window of his house and noticed two
women in burka dress in front of the house of deceased No.1. He
tried to go to the house of deceased No.1, but his grandson stopped
him. Therefore, he did not go. In the meanwhile, two (02) male
persons came out from the house of deceased No.1 and left the place
KL,J & JS,J
and those two women also followed those two persons. He came to
know that due to matrimonial disputes between accused No.1 and
deceased No.5, accused No.1 and his family members killed deceased
No.1 and his family members. PW.4's evidence is also on the same
lines. Therefore, to the said extent, their evidence can be considered.
xxvii) The evidence of other witnesses including panch
witnesses is supported by medical evidence. PW.15 is the doctor,
who treated accused No.1 and issued Ex.P41 - wound certificate. It is
his specific evidence that accused No.1 was brought by police
constable saying that he (accused No.1) is an accused in criminal case
and, therefore, PW.15 treated accused No.1 and gave Ex.P41 - wound
certificate.
xxviii) PW.16 is the doctor, who conducted autopsy over the
dead bodies of all the deceased and issued post-mortem examination
reports. She has specifically stated about the injuries sustained by the
deceased and also opined that such injuries were caused due to
beating them with iron rods and blunt objects. PW.17 also specifically
deposed about collecting material objects and he is a Member of Clue
Team. Ex.P62 is the FSL report, wherein it is mentioned that human
blood is detected on item Nos.1 to 6 and 8 to 28, and blood group of
KL,J & JS,J
blood stains on item Nos.1 to 6, 9, 11, 12, 14, 15 and 16 is of 'AB'
blood group; blood group of blood stains on item Nos.22 to 26 is of
'A' blood group; blood group of blood stains on item Nos.8, 10, 13,
17 to 21, 27 and 28 could not be determined; and blood is not detected
on item No.7, which is received as control for item Nos.1 to 6.
Therefore, depositions of PWs.1 to 4 are supported by medical
evidence and also depositions of PWs.15 to 22.
xxix) But, the trial Court failed to consider the same and
acquitted the accused only on the grounds that there are contradictions
in the evidence of PW.1 and improvement in her evidence; there is no
mention about the grill gate in Ex.P7 - rough sketch; the said fact was
admitted by PW.22 - Investigating Officer; PW.1 is an interested
witness; there is delay in lodging Ex.P1 and the evidence of PW.1 is
not inspiring confidence. The said observations of trial Court are
contrary to the evidence and the principle laid down by the Apex
Court in the above decisions.
20. FAULTY/DEFECT INVESTIGATION:
i) As discussed above, PW.1 is the wife of deceased No.3.
During cross-examination, she has categorically admitted that after the
death of her husband, deceased No.3, she got remarried. She has
KL,J & JS,J
specifically deposed about the incident. According to her, deceased
No.3, her husband, pushed her inside and bolted the gate. She has
narrated the entire incident. Though learned counsel for the
respondents contended that she is a planted and interested witness,
there was no suggestion to her with regard to the same during cross-
examination. On the other hand, the accused tried to take advantage
of her second marriage performed on 02.03.2011 and the incident had
occurred on 30.05.2010. As per customs in Muslim Community,
female will not participate in engagement, marriage talks etc. She
being pardanashin lady, she has not seen accused Nos.1 to 4, but she
has specifically deposed that accused Nos.1 to 3 visited her in-laws'
house for 2-3 times after her marriage and she saw them. She also
informed about the incident to the husband of her sister-in-law i.e.,
Mohd. Ather. He came to the scene of offence within 5 or 10 minutes
and called for '108' Ambulance. She has also informed the incident
to her father, who came to the scene of offence within 5 or 10 minutes
after Mohd. Ather came. But, the prosecution neither examined them,
nor collected call data of their mobiles including deceased No.1.
ii) The trial Court in the impugned judgment gave a finding
that there is no mention about the grill gate in Ex.P7 - rough sketch
KL,J & JS,J
and PW.22 - Investigating Officer admitted the said fact. Just because
the Investigating Officer did not mention about the said grill gate in
Ex.P7 - rough sketch, it cannot be said that there was no grill gate at
all and that there is contradiction in the evidence of PW.1. At the
same time, it is apt to note that there was no suggestion to PW.1 and
PW.2 on the said aspect during cross-examination. Therefore,
faulty/defect investigation is not a ground to acquit the accused, more
particularly, in a matter like this, where entire family of five members
were murdered. This Court has to consider the entire evidence and
analyze the same. In such event, minor omissions or contradictions
can be ignored.
iii) It is settled law that defect or faulty investigation is not a
ground to acquit the accused and the accused cannot take faulty/defect
investigation as a defence. In a matter like this, we are of the
considered opinion that it is a minor omission and should have been
ignored by the trial Court.
iv) In C. Muniappan v. State of Tamil Nadu5, the Apex
Court held as follows:
"44. There may be highly defective investigation
in a case. However, it is to be examined as to
. (2010) 9 SCC 567
KL,J & JS,J
whether there is any lapse by the I.O. and whether
due to such lapse any benefit should be given to
the accused. The law on this issue is well settled
that the defect in the investigation by itself cannot
be a ground for acquittal. If primacy is given to
such designed or negligent investigations or to the
omissions or lapses by perfunctory investigation,
the faith and confidence of the people in the
criminal justice administration would be eroded.
Where there has been negligence on the part of the
investigating agency or omissions, etc. which
resulted in defective investigation, there is a legal
obligation on the part of the court to examine the
prosecution evidence dehors such lapses, carefully,
to find out whether the said evidence is reliable or
not and to what extent it is reliable and as to
whether such lapses affected the object of finding
out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial.
The conclusion of the trial in the case cannot be
allowed to depend solely on the probity of
investigation."
v) In Visveswaran v. State6, the Apex Court held as under:
"..... In defective investigation, the only
requirement is of extra caution by courts while
evaluating evidence. It would not be just to acquit
the accused solely as a result of defective
. (2003) 6 SCC 73
KL,J & JS,J
investigation. Any deficiency or irregularity in
investigation need not necessarily lead to rejection
of the case of prosecution when it is otherwise
proved."
vi) In Karnel Singh v. State of M.P. 7, the Apex Court held as
under:
"5. In the case of a defective investigation the
Court has to be circumspect in evaluating the
evidence. But it would not be right in acquitting an
accused person solely on account of the defect; to
do so would tantamount to playing into the hands
of the investigating officer if the investigation is
designedly defective.
6. .....To acquit solely on that ground would be
adding insult to injury."
vii) In Sheo Shankar Singh v. State of Jharkhand 8, the Apex
Court held as follows:
"42. ...Deficiencies in investigation by way of
omissions and lapses on the part of investigating
agency cannot in themselves justify a total
rejection of the prosecution case. In Ram Bihari
Yadav v. State of Bihar and Ors [(1998( 4 SCC
517] this Court while dealing with the effect of
shoddy investigation of cases held that if primacy
. (1995) 5 SCC 518
. (2011) 3 SCC 654
KL,J & JS,J
was given to such negligent investigation or to the
omissions and lapses committed in the course of
investigation, it will shake the confidence of the
people not only in the law enforcing agency but
also in the administration of justice."
viii) In Ankush Maruti Shinde v. State of Maharashtra 9, the
Apex Court held as follows:
"Before parting with the present order, we strongly
deprecate the conduct on the part of the investigating
agency and the prosecution. Because of such lapses,
and more particularly in not defective investigation, the
real culprits have gone out of the clutches of the law
and got scot free."
ix) In State of Gujarat v. Kishanbhai 10, the Apex Court gave
certain directions with regard to the defect/faulty investigation in
paragraph Nos.22 and 23 and the same are relevant and are extracted
below:
"22. Every acquittal should be understood as a
failure of the justice delivery system, in serving the
cause of justice. Likewise, every acquittal should
ordinarily lead to the inference, that an innocent
person was wrongfully prosecuted. It is therefore
essential that every State should put in place a
procedural mechanism which would ensure that
. (2009) 6 SCC 667
. (2014) 5 SCC 108
KL,J & JS,J
the cause of justice is served, which would
simultaneously ensure the safeguard of interest of
those who are innocent. In furtherance of the
above purpose, it is considered essential to direct
the Home Department of every State to examine
all orders of acquittal and to record reasons for the
failure of each prosecution case. A standing
committee of senior officers of the police and
prosecution departments should be vested with
aforesaid responsibility. The consideration at the
hands of the above committee, should be utilised
for crystallising mistakes committed during
investigation, and/or prosecution, or both. The
Home Department of every State Government will
incorporate in its existing training programmes for
junior investigation/ prosecution officials course-
content drawn from the above consideration. The
same should also constitute course-content of
refresher training programmes for senior
investigating/prosecuting officials. The above
responsibility for preparing training programmes
for officials should be vested in the same
Committee of senior officers referred to above.
Judgments like the one in hand (depicting more
than ten glaring lapses in the
investigation/prosecution of the case), and similar
other judgments, may also be added to the training
programmes. The course-content will be reviewed
by the above Committee annually, on the basis of
KL,J & JS,J
fresh inputs, including emerging scientific tools of
investigation, judgments of Courts, and on the
basis of experiences gained by the Standing
Committee while examining failures, in
unsuccessful prosecution of cases. We further
direct, that the above training programme be put in
place within 6 months. This would ensure that
those persons who handle sensitive matters
concerning investigation/prosecution are fully
trained to handle the same. Thereupon, if any
lapses are committed by them, they would not be
able to feign innocence when they are made liable
to suffer departmental action for their lapses.
23. On the culmination of a criminal case in
acquittal, the concerned investigating/prosecuting
official (s) responsible for such acquittal must
necessarily be identified. A finding needs to be
recorded in each case, whether the lapse was
innocent or blameworthy. Each erring officer must
suffer the consequences of his lapse, by
appropriate departmental action, whenever called
for. Taking into consideration the seriousness of
the matter, the official concerned may be
withdrawn from investigative responsibilities,
permanently or temporarily, depending purely on
his culpability. We also feel compelled to require
the adoption of some indispensable measures,
which may reduce the malady suffered by parties
KL,J & JS,J
on both sides of criminal litigation. Accordingly,
we direct the Home Department of every State
Government, to formulate a procedure for taking
action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers
identified, as responsible for failure of a
prosecution case, on account of sheer negligence
or because of culpable lapses, must suffer
departmental action. The above mechanism
formulated would infuse seriousness in the
performance of investigating and prosecuting
duties, and would ensure that investigation and
prosecution are purposeful and decisive. The
instant direction shall also be given effect to within
6 months."
x) In Harijana Thirupala v. Public Prosecutor11, the Apex
Court held in paragraph No.11, which is relevant and the same is
extracted as follows:
"11. ..... The case of the prosecution must be
judged as a whole having regard to the totality of
the evidence. In appreciating the evidence the
approach of the curt must be integrated not
truncated or isolated. In other words, the impact of
evidence in totality on the prosecution case or
innocence of accused has to be kept in mind in
. (2002) 6 SCC 470
KL,J & JS,J
coming the conclusion as to the guilt or otherwise
of the accused. In reaching a conclusion about the
guilt of the accused, the court has to appreciate,
analyse and assess the evidence placed before it by
the yardstick of probabilities, its intrinsic value and
the animus of witnesses...."
xi) In Rammi @ Rameshwar v. State of Madhya Pradesh 12,
the Apex Court held as follows:
"....But courts should bear in mind that it is only
when discrepancies in the evidence of a witness
are so incompatible with the credibility of his
version that the court is justified in jettisoning his
evidence. But too serious a view to be adopted on
mere variations falling in the narration of an
incident (either as between the evidence of two
witnesses or as between two statements of the
same witness) is an unrealistic approach for
judicial scrutiny."
xii) In Appabhai v. State of Gujarat13, the Apex Court held
as under:
"The Court while appreciating the evidence must
not attach undue importance to minor
discrepancies. The discrepancies which do not
. (1999) 8 SCC 649
. AIR 1988 SC 696
KL,J & JS,J
shake the basic version of the prosecution case
may be discarded."
xiii) Relying on the said judgments, a Three-Judge bench of the
Hon'ble Apex Court in Manoj v. State of Madhya Pradesh14
reiterated the aforesaid principle.
xiv) In the light of the aforesaid discussion, the accused cannot
take faulty/defect investigation as a defence and it is not a ground to
acquit them. Thus, the trial Court erred in acquitting the accused by
observing that there is defect in conducting investigation. Therefore,
the said observation/finding of the trial Court in the impugned
judgment is contrary to the principle laid down by the Apex Court in
the aforesaid decisions.
21. At the cost of repetition, as stated supra, PW.1 has
specifically stated about the entire incident. The accused are taking
advantage that she married deceased No.3 only three months prior to
the incident, she being pardanashin lady, she had no occasion to see
the accused and, therefore, she has not identified the accused.
However, she has specifically stated about the presence of accused
Nos.1 and 2 in Ex.P1 and the presence of accused Nos.1 to 4 in her
. (2023) 2 SCC 353
KL,J & JS,J
deposition. Therefore, she cannot be treated as an interested witness.
As stated above, there are minor contradictions in Ex.P1 and in her
deposition.
22. It is settled principle that FIR is not an encyclopedia. It is
only information given to the police for the first time. Admittedly,
PW.1 has not mentioned the names of other accused except accused
Nos.1 and 2 in Ex.P1.
i) As stated supra, it is a case of family murder. Five (05)
persons of her family including her husband were murdered at about
6.15 A.M. She gave complaint (Ex.P1) to the police at 10.00 A.M. by
sitting in a house opposite her house. In a situation like this, it cannot
be expected from her to narrate the names in detail. Therefore, it
cannot be said that her evidence is not trust-worthy and basing on her
evidence, conviction cannot be recorded.
23. Learned trial Court in paragraph No.39 of the impugned
judgment held that PW.1 is very much interested for in the
prosecution case being wife of deceased No.3 and daughter-in-law of
deceased Nos.1 and 2 and sister-in-law of deceased Nos.4 and 5. Her
evidence is also not trustworthy. In paragraph No.43, the trial Court
held that quality of evidence is required, but not quantity of evidence.
KL,J & JS,J
PW.1 has supported the case of prosecution. She is interested in the
prosecution case and further her evidence is not inspiring confidence.
The said findings of the trial Court are contrary to record and
deposition of PW.1.
24. As discussed above, during cross-examination, no
suggestion was put to PW.1 that she was not present at the time of
incident at the scene of offence and that she is a planted witness. The
defence taken by the accused is that she has an affair with her second
husband prior to marrying him and that she was not interested in
marrying her first husband. The respondents - accused failed to elicit
anything from PW.1 that neither she nor her second husband is having
animosity with the family of the accused. The other defence taken by
the accused is that the persons with whom deceased No.1 and his
family members have disputes with regard to the property of deceased
No.1 situated at Ismail Nagar, Yerrakunta, Barkas. Therefore, the
defence taken by the accused is contradictory. In the light of the
same, the contention of learned counsel for the respondents - accused
that PW.1 is an interested witness, her evidence cannot be believed as
there are contradictions in her evidence and the findings of the trial
KL,J & JS,J
Court on the same are also contrary to the record and the principle laid
down by the Apex Court in the aforesaid judgments.
i) In view of the above discussion, the decision in B.N. Singh3
is inapplicable to the facts of the present case. The facts in Meharaj
Sing1 are different to the facts of the present case. In Narendrasinh
Keshubhai Zala2, conduct of the witness therein was unnatural and
unexplained circumstances were also there. On examination of the
facts of the said case, the Apex Court observed that there was
unnatural conduct and unexplained circumstances and, therefore,
deposition of witness cannot be believed. But whereas, in the present
case, PW.1 has specifically stated about the entire incident and there
are only minor contradictions and omissions. Thus, the said decision
is also not applicable to the present case.
25. It is further contended by learned counsel for the
respondents that there is delay in lodging the complaint. As stated
supra, the incident had occurred at about 6.15 A.M. She informed the
said incident to the husband of PW.2, Mohd. Ather, and her father.
Mohd. Ather informed 108 Ambulance. There were five (05) murders
and all the deceased are her family members. Deceased No.3 is her
husband. All the injured persons were taken to the Osmania General
KL,J & JS,J
Hospital in 108 Ambulance. The doctors at Osmania General
Hospital declared deceased Nos.1 to 4 dead. Deceased No.5 died after
two (02) days. It was a panic situation to PW.1 and she is a woman.
Even the police reached the scene of offence within 10 or 15 minutes.
PW.21, Inspector of Police, Amberpet Police Station, specifically
deposed that on 30.05.2010 at about 6.30 or 6.45 A.M., their police
received telephonic information to its landline by an unknown person
stating that there was a murder at Premnagar, Amberpet. At that time,
he was in the police station after doing his night duty. Immediately,
on receipt of the said telephonic information, he rushed to the scene of
offence at Premnagar. There was a pool of crowd. He secured the
services of 108 Ambulance and got shifted the injured persons to
Osmania General Hospital. He observed scene of offence. By the
time Ambulance left for the hospital, it was about 7.30 A.M. On that
day at about 10.00 A.M., he received written report (Ex.P1) from
PW.1.
i) Thus, the aforesaid facts would reveal that the incident took
place at 6.15 A.M. and PW.1 gave complaint at 10.00 A.M.
Therefore, it cannot be said that there is delay in lodging the
KL,J & JS,J
complaint. We are of the considered opinion that there is no delay in
lodging the complaint.
26. It is contended by learned counsel for the respondents -
accused that dying declaration of deceased No.5 was not recorded and
test identification parade was not conducted. As stated above, all the
deceased were shifted to Osmania General Hospital in 108
Ambulance and the doctors declared deceased Nos.1 to 4 dead. The
condition of deceased No.5 was serious as she suffered grievous
injuries and died after two (02) days i.e., 02.06.2010. PW.16
conducted autopsy over the dead body of deceased No.5. Dying
declaration is recorded when the condition of the injured is
considerably coherent and is in a condition to give statement.
i) As per Rule - 33 of the Criminal Rules of Practice, the doctor
has to confirm with regard to the condition of the injured before
recording her declaration. He should obtain a certificate from the
Medical Officer as to the mental condition of the declarant. It appears
that since deceased No.5 was not in a position to give a statement, he
could not have recorded her statement. Therefore, the contention of
learned counsel for respondents - accused that dying declaration of
KL,J & JS,J
deceased No.5 was not recorded cannot be a ground to acquit the
accused.
ii) With regard to test identification parade, according to
learned counsel for respondents - accused, PW.1 belongs to Muslim
community and she being pardanashin lady never saw the accused
and, therefore, the question of her identifying the accused does not
arise.
iii) Rule - 34 of the Criminal Rules of Practice deals with the
procedure to be followed while conducting test identification parade
for identification of accused. As stated above, in the present case,
accused No.1 is nephew of deceased No.2. He is the husband of
deceased No.5. The marriage PW.1 with deceased No.3 was
performed on 19.02.2010. According to her, accused Nos.1 to 4 came
to her in-laws' house two or three times to discuss about matrimonial
disputes of accused No.1 with deceased No.5. She saw them.
Therefore, she has identified them. Her evidence is supported by
PWs.3 and 4. Thus, there was no need to conduct test identification
parade in the present case. Taking advantage that PW.1, being
Muslim and pardanashin lady is unable to identify the accused and
that the Investigating Officer did not conduct test identification
KL,J & JS,J
parade, such defence has been taken by the accused. But, in view of
the above discussion, such contention of learned counsel for the
respondents is unsustainable. PW.1, eye-witness identified accused
Nos.1 to 4.
27. Learned counsel for the respondents - accused relying on
the principle laid down by the Apex Court in State (Delhi
Administration) v. Laxman Kumar 15 would contend that Courts
cannot allow any emotional and sentimental feelings to come in the
way of judicial pronouncements. Once sentimental and emotional
feelings are allowed to enter the judicial mind, the Judge is bound to
view the evidence with bias and in that case the conclusion may also
be biased resulting in some cases thereby rendering great injustice.
The cases have to be decided strictly on evidence howsoever cruel or
horrifying the crime may be. All possible chances of innocent man
being convicted have to be ruled out. There should be no hostile
atmosphere against an accused in Court as well as a decision. With
the said observations, the Apex Court held as "....This has to be
avoided at allcosts. We are sorry for the above diversion but it has
become necessary in this case."
. (1985) 4 SCC 476
KL,J & JS,J
i) First of all, we are human beings before becoming judges.
We will also have emotions and sentimental feelings. At the same
time, such emotional feelings shall not be allowed to enter into our
judicial mind. We are conscious of the said fact. We have to analyze
the entire evidence and come to a conclusion as to whether the trial
Court is right in acquitting the accused. We have also to assess the
probative value of the evidence produced by the prosecution, both oral
and documentary. This Court, being an appellate Court has power to
re-examine and analysis the entire evidence and come to a conclusion
independently.
28. In Jafarudheen v. State of Kerala 16, the Apex Court held
as under:
"25. While dealing with an appeal against acquittal
by invoking Section 378 of the Cr.PC, the
Appellate Court has to consider whether the Trial
Court's view can be termed as a possible one,
particularly when evidence on record has been
analyzed. The reason is that an order of acquittal
adds up to the presumption of innocence in favour
of the accused. Thus, the Appellate Court has to be
relatively slow in reversing the order of the Trial
Court rendering acquittal. Therefore, the
. 2022 SCC Online SC 495
KL,J & JS,J
presumption in favour of the accused does not get
weakened but only strengthened. Such a double
presumption that enures in favour of the accused
has to be disturbed only by thorough scrutiny on
the accepted legal parameters."
29. In Ravi Sharma v. State (Government of N.C.T. of
Delhi)17 the Apex Court reiterated the aforesaid principle.
30. In Harbans Singh v. State of Punjab18, the Apex Court
held as under:
In many cases, especially the earlier ones, the
"
Court has in laying down such principles
emphasised the necessity of interference with an
order of acquittal being based only on "compelling
and substantial reasons" and has expressed the
view that unless such reasons are present an appeal
court should not interfere with an order of
acquittal. (Vide Suraj Pal Singh v. State [1952
SCR 194]; Ajmer Singh v. State of Punjab [(1952)
2 SCC 709 : 1953 SCR 418]; Puran v. State of
Punjab [(1952) 2 SCC 454 : AIR (1953) SC 459] ).
The use of the words "compelling reasons"
embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and
difficulties occasionally arose as to what this Court
. (2022) 8 SCC 536
. AIR 1962 SC 439
KL,J & JS,J
had meant by the words "compelling reasons". In
later years the Court has often avoided emphasis
on "compelling reasons" but nonetheless adhered
to the view expressed earlier that before interfering
in appeal with an order of acquittal a court must
examine not only questions of law and fact in all
their aspects but must also closely and carefully
examine the reasons which impelled the lower
courts to acquit the accused and should interfere
only if satisfied, after such examination that the
conclusion reached by the lower court that the guilt
of the person has not been proved is unreasonable.
(Vide Chinta v. State of Madhya Pradesh, Criminal
Appeal No. 178 of 1959); Ashrafkha Haibatkha
Pathan v. State of Bombay, Criminal Appeal No.
38 of 1960).
9. It is clear that in emphasising in many cases the
necessity of "compelling reasons" to justify an
interference with an order of acquittal the court did
not in any way try to curtail the power bestowed
on appellate courts under Section 423 of the Code
of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense
dislike in our jurisprudence of the conviction of
innocent persons and of the fact that in many
systems of jurisprudence the law does not provide
at all for any appeal against an order of acquittal
the court was anxious to impress on the appellant
KL,J & JS,J
courts the importance of bestowing special care in
the sifting of evidence in appeal against acquittals.
As has already been pointed out less emphasis is
being given in the more recent pronouncements of
this Court on "compelling reasons". But, on close
analysis, it is clear that the principles laid down by
the Court in this matter have remained the same.
What may be called the golden thread running
through all these decisions is the Rule that in
deciding appeals against acquittal the court of
appeal must examine the evidence with particular
care, must examine also the reasons on which the
order of acquittal was based and should interfere
with the order only when satisfied that the view
taken by the acquitting Judge is clearly
unreasonable. Once the appellate court comes to
the conclusion that the view taken by the lower
court is clearly an unreasonable one that itself is a
"compelling reason" for interference. For, it is a
court's duty to convict a guilty person when the
guilt is established beyond reasonable doubt, no
less than it is its duty to acquit the accused when
such guilt is not so established."
31. In Champaben Govindbhai v. Popatbhai Manilal 19, the
Apex Court held as under:
. (2009) 13 SCC 662
KL,J & JS,J
"12. It is well settled that in an appeal against
acquittal the appellate court does not reverse the
finding of acquittal if the court while granting
acquittal has taken a reasonable or a possible view
on the evidence and materials on record. Law is
equally well settled that if the view taken by the
court granting acquittal is perverse or shocks the
conscience of the higher court, the finding of
acquittal can be reversed.
13. In the instant case, the High Court as the first
appellate court has a duty to consider in detail the
material on record and also should appreciate the
evidence very carefully before affirming the order
of acquittal given by the trial court.
14. The counsel for the respondents referred to the
decision of this Court in Chandrappa v. State of
Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC
(Cri) 325] to put forward the argument that an
appellate court must bear in mind that in case of
acquittal, there is a double presumption in favour
of the accused. Firstly, the presumption of
innocence is available to him under the
fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having been acquitted,
the presumption of his innocence is further
KL,J & JS,J
reinforced, reaffirmed and strengthened by the trial
court.
5. In this connection we may refer to the principles
summarised in para 42 at SCC p. 432 of the
judgment in Chandrappa case and they are
extracted:
"42. ... (1) An appellate court has full power to
review, reappreciate and reconsider the evidence
upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts
no limitation, restriction or condition on exercise
of such power and an appellate court on the
evidence before it may reach its own conclusion,
both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and
compelling reasons', 'good and sufficient
grounds', 'very strong circumstances', 'distorted
conclusions', 'glaring mistakes', etc. are not
intended to curtail extensive powers of an
appellate court in an appeal against acquittal.
Such phraseologies are more in the nature of
'flourishes of language' to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him
KL,J & JS,J
under the fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court."
Also, if two reasonable views are possible on the
basis of the evidence on record and one favourable
to the accused has been taken by the trial court it
ought not to be disturbed by the appellate court
(para 44)."
32. As stated supra, we have considered the entire evidence,
both oral and documentary. We are of the considered view that PW.1
is not an interested witness but an eye-witness. Therefore, it cannot
be said that her evidence is not inspiring confidence. Further, the
accused took a contradictory defence. Therefore, accused Nos.1 to 4
are hereby guilty of the offence under Section - 302 of IPC.
33. As far as offence under Section - 120B of IPC is concerned,
criminal conspiracy is defined under Section - 120A of IPC and
punishable under Section - 120B of IPC. To make someone guilty
KL,J & JS,J
under Section 120B for the commission of the offence of criminal
conspiracy, an intentional agreement to commit an illegal act is
enough The essential ingredients of the offence of criminal conspiracy
was elucidated by the Apex Court in Rajiv Kumar v. State of
U.P. 20 are: (i) an agreement between two or more persons; (ii) the
agreement must relate to doing or causing to be done either (a) an
illegal act; or (b) an act which is not illegal in itself but is done by
illegal means. "It is, therefore, plain that meeting of minds of two or
more persons for doing or causing to be done an illegal act or an act
by illegal means is the sine qua non of criminal conspiracy". As
stated above, PW.1 specifically deposed in her evidence that accused
Nos.1 to 4 forcibly entered into her house. Accused No.1 firstly
entered into her house. They have bolted the gate of the house. Then,
accused No.1 first hit her father-in-law (deceased No.1) with an iron
rod on his head. Deceased No.1 started shouting and then her mother-
in-law (deceased No.2) came into the veranda, accused No.1 hit her
also with the same iron rod on her head. Both her parents-in-law fell
down with bleeding injuries on their hand. Deceased Nos.3 to 5 came
to the verandah from inside the house, then all accused Nos.1 to 4
. 2017 INSC 699
KL,J & JS,J
began to beat them with iron rods and sticks due to which they fell on
the floor. She further deposed that she was also present there by the
time her husband entered into the verandah and he had pushed her
into the hall adjacent to it and bolted the grilled gate of it, then
accused Nos.1 to 4 left the house.
i) In view of the above evidence, it is clear that accused Nos.1
to 4 came together the house of deceased to kill them, for which
accused No.1 has already recce while accused No.2 observed the
presence of deceased Nos.1 to 5 in the house. Thus, there is clear
evidence to show meeting of minds among accused Nos.1 to 4 in
commission of offence under Section - 302 of IPC and accordingly
they are also liable for punishment for the offence under Section -
120B of IPC.
34. As far as offence under Section - 452 of IPC is concerned,
to attract this offence, there must be indication that the accused had
committed house trespass after having made preparation for causing
hurt to the de facto complainant or to assault or wrongfully restrain
him or for putting him in fear of hurt, assault or wrongful restraint. In
view of the same, the evidence of PW.1 is very clear with regard to
accused Nos.1 to 4 entering into the house of her in-laws' and
KL,J & JS,J
committing the murder of deceased Nso.1 to 5. Therefore, accused
Nos.1 to 4 are also liable for the offence under Section - 452 of IPC.
35. As far as offence under Section - 148 of IPC is concerned,
'rioting' is defined as the criminal behavior of five or more people
acting jointly to attain an illegal shared goal by force or violence in
Section - 146 of IPC. Each and every participant is held accountable
for the riot because it was primarily devoted to further a common
goal. The accused would be entitled for an acquittal if the prosecution
failed to prove that they shared a same goal. In the present case, as
per the evidence of PW.1 it is clear that accused Nos.1 to 4 only
entered into the house of her in-laws and this Court also found them
guilty. There is no participation of five or more persons in this case.
Therefore, prosecution failed to prove the offence under Section - 148
of IPC against accused Nos.1 to 4 herein and so also Section - 149
read with 302 of IPC.
36. It is also settled principle that in criminal justice system,
accused is presumed to be an innocent unless and until guilt is proved
beyond reasonable doubt. The prosecution has to prove the guilt of
accused Nos.1 to 4 by producing legally acceptable evidence. Burden
lies on the prosecution. In the present case, it is a family murder case.
KL,J & JS,J
Five members of one family were murdered. PW.1 is the eye-witness.
Depositions of PWs.3 and 4, neighbours, can be believed to the extent
which is useful to the prosecution as held by the Apex Court in the
aforesaid decisions. The said evidence is supported by medical
evidence, but the trial Court failed to consider all the said aspects in
the impugned judgment and erroneously acquitted the accused.
37. As stated supra, accused No.2 died during pendency of
present appeal and, therefore, this Court abated the proceedings
against him vide orders dated 28.02.2024. There is no reference with
regard to accused Nos.5 to 9 in Ex.P1 and the deposition of PW.1.
PW.1 has not stated about the presence of accused Nos.5 to 9 in her
statement recorded under Section - 161 of Cr.P.C. However, PW.3,
neighbour deposed that two (02) women in burkha were present and
they have followed along with male, who came out from the house of
deceased No.1. Thus, there is no evidence, much less legally
acceptable evidence against accused Nos.5 to 9.
38. Learned Additional Public Prosecutor, who conducted the
case before the trial Court, represented that there is no case at all
against accused Nos.5 to 9. The same was also considered by the trial
Court in paragraph No.50 of the impugned judgment.
KL,J & JS,J
39. At the same time, there is evidence against accused Nos.1
to 4. The said evidence is legally acceptable evidence. The evidence
of PWs.1 to 4 is supported by other witnesses including panch
witnesses for recovery of material objects. Nothing contra was
elicited from them during cross-examination. The said evidence is
supported by medical evidence including Ex.P62 - FSL report.
Without considering the said aspects, the trial Court acquitted accused
Nos.1 to 4. Thus, the impugned judgment is not based on the
evidence, both oral and documentary and the same is liable to be set
aside to the extent indicated.
40. CONCLUSION:
i) In view of the aforesaid discussion, the present appeal is
allowed in part setting aside the impugned judgment dated 23.02.2012
passed by learned I-Additional Metropolitan Sessions Judge,
Hyderabad in Sessions Case No.94 of 2011 in so far as accused Nos.1
to 4.
ii) Accused Nos.1 to 4 are accordingly found guilty of the
offences under Sections - 120B and 452; accused No.1 is also found
guilty of offence under Section - 302 of IPC under three (03) counts
and accused Nos.2 to 4 are found guilty of offence under Section -
KL,J & JS,J
302 of IPC, and they are convicted of the said offences. However,
accused Nos.1 to 4 are acquitted of the offences under Sections - 148
and 149 read with 302 of IPC. Further, the impugned judgment dated
23.02.2012 passed by learned trial Court acquitting accused Nos.5 to
9 for the aforesaid offences is hereby confirmed.
iii) Though accused No.2 is found guilty of the aforesaid
offences, since he died during pendency of the present appeal, this
appeal against him stood abated by this Court vide order dated
28.02.2024.
iv) Today, accused Nos.1, 3 and 4 are absent. Therefore,
learned counsel for the respondents - accused is directed to inform
accused Nos.1, 3 and 4 to be present before this Court on 13.06.2024
to hear them with regard to quantum of sentence under Section - 235
(2) of Cr.P.C. List on 13.06.2024.
As a sequel thereto, miscellaneous applications, if any, pending
in the appeal shall stand closed.
_____________________
K. LAKSHMAN, J
____________________
JUVVADI SRIDEVI, J
7th June, 2024
Mgr
KL,J & JS,J
Date 13.06.2024:
41. Today, Accused Nos.1, 3 and 4 are present and we have
apprised the findings of the Court and also the fact that the offences
levelled against them are proved. We have heard accused Nos.1, 3
and 4 under Section - 235 (2) of Cr.P.C. on sentence. When
questioned accused Nos.1, 3 and 4 with regard to quantum of
sentence, accused No.1 stated that he has not committed any offence,
he has small children; Accused No.3 stated that he has not committed
any offence; that he was 19 years old at the time of commission of
offence and he has also small children and accused No.4 stated that he
has not committed any offence and accordingly all of them prayed this
Court to take a lenient view.
i) As discussed above, it is a family murder case. Five (05)
persons of one family were murdered. Having considered the nature
of offences and the manner in which the same were committed by
accused Nos.1, 3 and 4, we are of the considered opinion that we are
not inclined to restrict ourselves to take lenient view to impose
minimum sentence prescribed for the aforesaid offences.
ii) Section - 120B of IPC prescribes the punishment as
whoever is a party to a criminal conspiracy to commit an offence
KL,J & JS,J
punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, shall, where no
express provision is made in the Code for the punishment of such a
conspiracy, be punished in the same manner as if he had abetted such
offence.
iii) Therefore, accused Nos.1, 3 and 4 are sentenced to undergo
life imprisonment for the offence under Section - 120B of IPC.
iv) Accused Nos.1, 3 and 4 are also sentenced to undergo
rigorous imprisonment for a period of seven years each and to pay a
fine of Rs.10,000/- (Rupees Ten Thousand only) each and in default,
to undergo S.I. for a period of six (06) months each for the offence
U/S - 452 of IPC.
v) Accused No.1 is also sentenced to undergo life imprisonment
and to pay a fine of Rs.10,000/- (Rupees Ten Thousand Only) and in
default, to undergo S.I. for a period of six (06) months, for the offence
U/S - 302 of IPC under three (03) counts.
vi) Accused Nos.3 and 4 are also sentenced to undergo life
imprisonment each and to pay a fine of Rs.10,000/- (Rupees Ten
Thousand Only) each and in default, to undergo S.I. for a period of six
months each for the offence U/S. 302 of IPC.
KL,J & JS,J
vii) All the aforesaid sentences of imprisonment shall run
concurrently.
viii) Accused Nos.1, 3 and 4 are directed to surrender before I -
Additional Metropolitan Sessions Judge, Hyderabad, within one (01)
month from today for serving out the aforesaid sentences of
imprisonment. If they fail to surrender, learned I-Additional
Metropolitan Sessions Judge, Hyderabad shall take necessary steps in
accordance with law.
___________________
K. LAKSHMAN, J
____________________
JUVVADI SRIDEVI, J
13th June, 2024
Note:
1. The Registry is directed to furnish
forthwith;
2. The Registry is also directed to send back
the original record to the trial Court.
(B/O.) Mgr
