Doolla Mallesh , Kurva Mallesh, ... vs The State Of Telangana, Rep Pp.,
2024 Latest Caselaw 2127 Tel

Telangana High Court

Doolla Mallesh , Kurva Mallesh, ... vs The State Of Telangana, Rep Pp., on 7 June, 2024

Author: K. Lakshman

Bench: K. Lakshman

            HON'BLE SRI JUSTICE K. LAKSHMAN
                                 AND
              HON'BLE SMT. JUSTICE K. SUJANA

               CRIMINAL APPEAL No.80 OF 2016

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Ms. Thanusri, learned counsel representing Mr. T.

Pradyumna Kumar Reddy, learned senior counsel appearing for

appellant - Accused and learned Additional Public Prosecutor

appearing on behalf of the respondent.

2. This appeal is filed challenging the judgment dated 18th &

20th January, 2016 in S.C. No.31 of 2014 passed by learned Special

Sessions Judge - cum - VII Additional District and Sessions Judge,

Mahabubnagar.

3. Vide the aforesaid judgment, the trial Court convicted the

appellant - accused for the offences under Sections - 302 and 201 of

IPC and Section - 3 (2) (v) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') and

accordingly sentenced him to undergo life imprisonment and to pay

fine of Rs.10,000 (Rupees Ten Thousand Only) for the offence under

Section - 302 of IPC. He was further sentenced to undergo five (05)

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years rigorous imprisonment and to pay fine of Rs.5,000/- (Rupees

Five Thousand Only) for the offence under Section - 201 of IPC. He

was also sentenced to undergo life imprisonment and to pay fine of

Rs.10,000 (Rupees Ten Thousand Only) for the offence under Section

- 3 (2) (v) of the Act, 1989. In default to pay fine amounts, he shall

suffer simple imprisonment of six (06) month, three (03) months and

six (06) months for the charges under Sections - 302 and 201 of IPC

and Section - 3 (2) (v) of the Act, 1989, respectively. However, the

appellant was not found guilty of the offences under Sections - 493

and 420 of IPC.

4. The case of the prosecution is as follows:

i) Deceased - Kethavath Nanku @ Anitha is the younger

daughter of PW.2. They are residents of Vooranchu

Thanda H/o Shapur Village and Khilla Ghanpur Mandal,

the then Mahabubnagar District and belong to ST -

Lambada Caste. The marriage of the deceased was

solemnized with the resident of Lattupally Thanda. After

six months of the marriage, the deceased took divorce from

her husband and staying with her mother.

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ii) Accused is resident of Shapur village and he belongs to BC

'B' - Kurva Caste. He was recruited as Civil Police

Constable during the year 2011. After training, he was

posted to Makthal Police Station and attached to Special

Party, Mahabubnagar;

iii) The lands of the deceased and the accused are adjacent to

one and another. Therefore, while working in their fields,

they got acquaintance with each other. The accused

exploited the innocence of the deceased and developed

illegal contact with her for the last 4½ years from the date

of incident. Having developed illegal contact with the

deceased, she left her parents house and shifted her

residence to various places and stayed with the accused.

They lived together like wife and husband. Out of their

illegal relation, the deceased conceived;

iv) After getting conceived, the deceased pressurized the

accused to marry her, but he had alliance in his cast with

another woman and neglected the deceased. In that

connection, at the instance of the deceased, a panchayat

was held at Padmashali Function Hall, Khilla Ghanpur on

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09.04.2013, where the elders (PWs.14 and 8 to 10) decided

to pay Rs.3.50 lakhs to the deceased for which she did not

agree and pressurized the accused to marry her;

v) On 12.05.2013, the deceased also threatened the accused to

approach the Higher Officials of the accused and inform

the same, and so also on 13.05.2013;

vi) With preplan, the accused took the deceased on 13.05.2013

on Motorcycle (Splendor Plus) bearing No.AP 22M 7498

on the pretext that he would marry her at Srisailam. When

they reached near 30 KMS. Stone, the accused took the

bike to the side of culvert, beat her, murdered her by

throttling, carried her body about 1 KM. deep into the

forest, hid the body under a big boulder in the valley; and

vii) Again, on 18.05.2013, the accused visited the crime scene,

poured petrol on the dead body and burnt the body to

screen the evidence.

5. On receipt of complaint lodged by PW.2, mother of the

deceased on 03.06.2013, PW.20 - Sub Inspector of Police, Khilla

Ghanpur Police Station, registered a case in Crime No.48 of 2013

under Sections - 420 & 498 of IPC, Woman Missing and Section - 3

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(2) (v) of the Act, 1989. Since one of the offences is under the

provisions of the Act, 1989, PW.18 - Sub-Divisional Police Officer,

Wanaparthy, was appointed as Investigating Officer and took up the

investigation. While so, on 06.06.2013 at 10.00 AM, PW.14 came

along with accused and gave a representation to PW.18 stating that

while he was in his house, the accused came to him and confessed to

have murdered the deceased at Srisailam Reserve Forest as she was

harassing him to marry her. On receipt of the said representation,

PW.18 altered the section of law by adding Sections - 302 and 201 of

IPC by deleting the head 'woman missing' and sent express adding

memo to the concerned court and officers.

6. During investigation, PW.18 examined the witnesses,

recorded their statements, also collected caste certificates of the

accused as well as the deceased and sent the burnt remnants to the

FSL. After completion of investigation including receipt of the FSL

report and call data information, PW.18 laid charge sheet against the

accused and the same was committed to the Sessions Judge which was

numbered as Sessions Case No.31 of 2014.

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7. The trial Court after framing charges for the offences under

Sections - 493, 420, 302 and 201 of IPC and Section - 3 (2) (v) of the

Act, 1989 against the accused, proceeded with trial.

8. During trial, PWs.1 to 20 were examined, Exs.P1 to P41

were marked and MOs.1 to 4 were exhibited. No evidence either oral

or documentary was let in on behalf of the accused.

i) To prove the guilt of the accused, prosecution has examined

PW.1, owner of the house where the deceased and accused resided;

PW.2, mother of the deceased, PW.3, sister-in-law of PW.2, PW.4,

owner of cloth shop where the deceased worked, PWs.5, 6 and 7, elder

and younger brothers and elder sister of the deceased, PWs.8 to 10,

elders of panchayat, PW.11, circumstantial witness to prove last seen

theory that he saw the deceased at Bijinepally on 13.05.2013 at about

12.00 noon going on a motorcycle along with accused towards

Nagarkurnool; PW.12, owner of crime vehicle i.e., Motorcycle

(Splendor Plus) bearing No.AP 22M 7498; PW.13, who offered her

daughter in marriage to the accused, PW.14 before whom the accused

made extra-judicial confession; PWs.15 and 16, panch witnesses for

confession and recovery of mortal remains of deceased, cell phone,

motorcycle and photographs; PW.18, the Investigating Officer;

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PW.19, the doctor, who gave DNA report and PW.20, the Sub-

Inspector of Police, who received Ex.P40 - complaint from PW.2 and

issued Ex.P24 - FIR.

9. Ms. Thanusri, learned counsel representing Mr. T.

Pradyumna Kumar Reddy, learned counsel for appellant - Accused

would contend as under:

i. There is no direct evidence or eye witness to prove the guilt of

the accused;

ii. The entire case rests on circumstantial evidence;

iii. Almost all the witnesses i.e., PWs.1 to 17 turned hostile and,

therefore, the prosecution utterly failed to prove the guilt of the

accused beyond reasonable doubt;

iv. Even the circumstances relied on by the prosecution did not

form complete chain;

v. Extra-judicial confession statement is a weak piece of evidence

and the same cannot be used for recording conviction;

vi. The family members of the deceased also did not support the

case of prosecution. This itself shows that the accused was

implicated falsely;

vii. There is delay in lodging complaint by PW.2;

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viii. As per the evidence of PW.19, he received the skeletal parts in

an unsealed condition and, therefore, there is a possibility of

tampering the same;

ix. Last seen theory was not proved in this case even as per the

evidence of PW.11;

x. Though the Investigating Officer collected the call details list,

prosecution did not examine any of the service providers;

xi. Without considering all the aforesaid aspects, the trial Court

recorded conviction against the appellant herein which is not

based on sound reasoning; and

xii. With the aforesaid submissions, she sought to allow the appeal

by setting aside the conviction and sentence of imprisonment

imposed on the accused.

10. On the other hand, learned Additional Public Prosecutor

would submit as under:

i. Though there is no direct evidence and eye-witness to the

occurrence, there is circumstantial evidence which proves the

guilt of the accused;

ii. All the circumstances form a complete chain to connect the

accused in commission of offence;

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iii. The confession made by the accused led to recovery of mortal

remains of the deceased and, therefore, an irresistible inference

can be drawn that the accused committed the aforesaid

offences;

iv. DNA of PW.2 matches with the extracts of burnt remnants and,

therefore, basing on the report given by PW.19, the trial Court

gave a finding that the burnt remnants pertains to the deceased;

v. The accused himself made extra judicial confession vide

Ex.P25, dated 06.06.2013 before PW.14 admitting his guilt.

Though PW.14 turned hostile, during cross-examination he

admitted the signature on Ex.25 as Ex.P15;

vi. The trial Court relying on the evidence, both oral and

documentary, more particularly, PWs.18 to 20 and Exs.P25,

P27, P36 and MOs.1 to 4, recorded conviction against the

appellant herein. There is no error in it warranting interference

by this Court; and

vii. With the aforesaid submissions, he sought to dismiss the present

appeal.

11. In view above, the point that falls for consideration by this

Court is:

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Whether the conviction and sentence of imprisonment recorded by the trial Court for the offences under Sections - 302 and 201 of IPC and Section - 3 (2) (v) of the Act, 1989 against the appellant herein - accused are sustainable, both on facts and in law?

12. It is relevant to note that PWs.1 to 17 turned hostile. PW.18

is the Investigating Officer. He deposed that earlier he worked as

S.D.P.O., Wanaparthy from 08.06.2011 to 28.11.2013. He was

appointed as Special Investigation Officer in this case by then

Superintendent of Police, Mahabubnagar, vide Ex.P23 - proceedings

No.100/C3/10-APT/DCRB/2013, dated 03.06.2013. On the next day,

on receipt of express F.I.R. along with C.D. file from PW.20, the

Station House Officer, Khilla Ghanpur, he took up investigation of

this case.

i) He further deposed that on 04.06.2013 he visited Khilla

Ghanpur village and secured PW2 produced by PW.20, examined and

recorded her statement. Then, he also secured PW.1, PW3 and PW4

and recorded their statements in Part-II C.D. On 06.06.2013, he

received information from PW.20 about extra-judicial confession

before PW.14. On his instructions, PW.20 produced before him at

Khilla Ghanpur, where he received Ex.P25- representation from

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PW.14 containing the extra-judicial confession. Then he recorded the

statement of PW.14 and then securing the presence of PWs.15 and 16,

he recorded the confession of the accused produced by PW.14 and

then submitted Ex.P26, altered memo of FIR to the concerned

Magistrate altering Sections - 302, and 201 of IPC and Ex.P27 is the

relevant portion of disclosure statement in the confession of accused

recorded by him.

ii) PW.18 further deposed that in pursuance of the said

confession, the accused led them to the place where he killed the

victim, hid the corpse and burnt. Ex. P28 is the seizure mahazar

prepared on seizure of mortal remains of the deceased. He also

prepared Ex.P29, crime details form incorporating sketch. He also got

photographed and videographed the place of seizure and the mortal

remains of the deceased seized with LW.16 - photographer and PW.17

- videographer accompanied them to the place of seizure. From there

they were led to the house of the accused where they seized MO.1 -

motorcycle belonging to the friend of the accused used in commission

of the aforesaid offences, Cell Phone (MO.2) of the accused and MO.4

- bunch of photographs of the deceased and the accused at the instance

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of the accused under Ex.P30 - panchanama. On the same day, he

affected the arrest of the accused after completion of all formalities.

iii) He further deposed that on the same day he recorded the

statements of PWs.5 to 7 in Part-II CD. On 07.06.2013, he recorded

the statements of PWs 8 to 13, 17 and L.W.16 (Anil Kumar). Then he

addressed a letter to the Tahsildar, Khilla Ghanpur to furnish the Caste

Certificates of the deceased as well as the accused and the same were

received. As per Ex.P31 - Caste Certificates of the deceased and the

accused, the deceased belonged to Lambada Community, which is

classified as Scheduled Tribe, while the accused belongs to Kurva

Community, which comes under Backward Class Community. He

also collected Ex.P32 - Scanning Report of the deceased with regard

to conformation of her pregnancy from LW.13. On 10.6.2013, under

letter of advice, he forwarded all the material objects to FSL,

Hyderabad, and also PW2, mother of the deceased, for collection of

DNA samples enabling them to compare her DNA with the DNA of

mortal remains of the dead body seized at the instance of accused. He

also collected call details list of MO2. Cell Phone SIM

No.9885542260 stands in the name of Mr. K. Anjaneyulu and another

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SIM No.9989303654 stands in the name of Mr. D. Mallesh, the

accused herein seized at the instance of the accused from the Service

Provider for the relevant period. Exs.P33 and 34 are Call details list.

In the call details list, SIM No.9966213886 belonged to the deceased

as per the confession of the accused is duly figured. Ex. P35 is call

details list of the deceased bearing Cell No.9966213886. CDFD

Authorities, on analyzing DNA samples of the mortal remains of the

dead body and PW.2, mother of the deceased, gave Ex.P36 - report

opining that the mortal remains of the dead body belonged to

biological daughter of PW.2.

13. PW.19 - Technical Examiner, CDFD, Hyderabad, deposed

that he performed DNA Finger Printing Examination in this case

received by Dr. Devender Kumar, Technical Officer, CDFD from

SDPO, Wanaparthy on 11.06.2013. He also deposed that the samples

are skull, partially burnt hair tuft, soil from crime scene, control earth

and partly burnt hip region along with both the legs along with one

blood sample of PW.2. On the analysis of the samples sent to him, he

gave report opining that the DNA collected from the blood sample

sent for analysis duly matched the DNA profile taken out from the

partially burnt hip region along with two legs and accordingly he

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concluded in his report that DNA test performed on exhibits provided

is sufficient to conclude that the source of 'B' (hip region) is from the

biological daughter of the source of 'F' (PW.2). Ex.P36 is the opinion

given by him.

i) During cross-examination, he admitted that material objects

are sent to CDFD in an unsealed carton box. In Ex.P36, it is

mentioned that partially burnt hip region without referring to the legs.

Hip region consists of several bones including the 'femur'. All are

detached by the time he received for analysis. The bone shown to him

said to have been taken by him for analysis is known as femur. It is

also known as thigh bone. The said bone would be below the hip

region in human anatomy. No chits were affixed to the bones sent to

him for analysis, more particularly, taken out by him for analysis.

14. PW.20 is the then Sub-Inspector of Police, Khilla Ghanpur

Police Station. According to him, he received Ex.P40 - complaint

from PW.2 on 03.06.2013 at 17:00 hours stating that her daughter is

missing for the last 25 days, she suspected the appellant herein in

missing of her daughter. On receipt of the said complaint, he has

registered a case in Crime No.48 of 2013 and issued Ex.P24 - FIR.

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The same was sent to Magistrate concerned. Investigation was taken

by PW.18 as per the orders of the Superintendent of Police. He

further deposed that PW.14 came to the police station along with

accused and submitted a report stating that the accused made extra-

judicial confession before him admitting his guilt. Ex.P25 is the said

report of PW.14 with his signature (Ex.P15). He duly endorsed

Ex.P25 and made G.D. entry and informed the same to PW.18.

Ex.P45 is his endorsement on Ex.P25 report with his signature.

Nothing was elicited from him during cross-examination.

15. As discussed above, PWs.1 to 17 turned hostile. The trial

Court recorded conviction against the appellant herein relying on the

depositions of PWs.18 to 20 and also Ex.P25 - extra judicial

confession statement of the accused dated 06.06.2013, Ex.P27 -

relevant portion of disclosure statement in the confession of the

accused, Ex.P36 - DNA report of CDFD, dated 19.09.2013, Ex.P35 -

call details list of the deceased mobile number, Ex.P37 - customer

application form of the deceased in respect of her mobile number;

Exs.P38 and 39 - customer application forms in the names of the

accused and Mr. Kurva Anjaneyulu in respect of the two mobiles and

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also relying on MO.2 - dual SIM cell phone, MO.3 - DVD and MO.4 -

bunch of photographs.

16. As discussed supra, the deceased belonged to the scheduled

tribe i.e., Lambada Community. She was resident of Vooranchu

Thanda H/o Shapur village. The deceased was a divorcee. She used

to stay with her mother (PW.2). The accused is the resident of Shapur

Village and he belongs to BC 'B' (Kurva Caste). The lands of the

deceased and the accused are adjacent to each other. While working

in their fields, the accused got acquaintance with the deceased. He has

exploited her innocence, developed illegal contact with her for the last

4½ years. She went along with accused leaving her parents' house.

They stayed together as husband and wife. She conceived due to her

illegal relation with the accused. At the time of offence, she was

carrying 5½ months pregnancy. The accused was recruited as Civil

Police Constable during the year 2011. After training, he was posted

to Makthal Police Station and attached to Special Party,

Mahabubnagar. Thereafter also, he has continued his illegal relation

with the deceased and stayed with her. They stayed in a rented house

at Khilla Ghanpur. After she became pregnant, she pressurized the

accused to marry her, but he refused. He got alliance with other girl

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of his caste and neglected the deceased. A panchayat was held on

09.04.2013 at the instance of the deceased, and PWs.5 and 6, her elder

and younger brothers were also present in the said panchayat. PWs.8

to 10 are elders, who participated in the said panchayat at Padmashali

Function Hall, Khilla Ghanpur and decided to pay 3½ lakhs to the

deceased with a condition that she should allow the accused to have

marriage within his caste. The elders also took an amount of

Rs.50,000/-. But, the deceased refused the said offer and pressed for

marriage. The deceased offered to pay an amount of Rs.5.00 lakhs

more than the dowry proposed by his caste people. Thus, she pressed

the accused to marry her. Therefore, the accused bore grudge against

her and eliminated her as she is coming in his way in marrying a girl

of his community and leading normal life. As discussed above, the

accused won over seventeen (17) witnesses including the mother,

brothers, sister and sister-in-law of the deceased, panch witnesses,

owner of the house etc.

17. As deposed by PW.18, the Investigating Officer, he has

collected call data i.e., Exs.P33 and P34. He has also mentioned SIM

numbers of the accused i.e., 9885542260 and 9989308654. He has

also collected Ex.P35 - call details of the deceased and her mobile

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SIM No.9966213886. MO.2 is the mobile of the accused which is

having dual SIM. MO.3 is the DVD and MO.4 is the bunch of

photographs showing the scene of crime 28 in number. He has also

collected Ex.P31 - Caste particulars of the deceased and the accused.

As per Ex.P31, the deceased belonged to Lambada Caste, which is

classified as 'ST', and the accused belongs to Kurva Caste (BC 'B').

He has also collected scanning report of the deceased with regard to

pregnancy confirmation of the deceased from LW.13, circumstantial

witness, who referred the deceased to Amrutha Clinic, Mahabubnagar

for further examination and treatment. Ex.P32 is the said report.

i) PW.18 further deposed that on 10.6.2013 under a letter of

advice, he forwarded all the material objects to FSL, Hyderabad and

also PW2, mother of the deceased, for collection of DNA samples

enabling them to compare her DNA with the DNA of mortal remains

of the dead body seized at the instance of accused. He has also

collected call details list of MO2 with Cell Phone No.9885542260

stands in the name of Mr. K. Anjaneyulu and another Cell Phone

No.9989303654 stands in the name of the accused. The same were

seized at the instance of the accused from the Service Provider for the

relevant period. Exs.P33 and 34 are call details belongs to the

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deceased Mobile No.9966213886. Ex.P35 call-details list of the

deceased were sent to the CDFD Authorities for analyzing DNA

sources of mortal remains of the dead body and PW.2, mother of the

deceased. CDFD Authorities gave report opining that the mortal

remains of the dead body belonged to biological daughter of PW.2.

PW.36 is the said report dated 19.09.2013.

ii) Initially, the crime was registered for the offences under

Sections - 420 and 493 of IPC, Woman Missing and also Section - 3

(2) (v) of the Act, 1989. Thereafter, an alteration memo, dated

06.06.2013, vide Ex.P26 was filed adding Sections - 302 and 201 of

IPC to the existing Sections - 420 and 493 of IPC and Section - 3 (2)

(v) of the Act, 1989, however, deleted the head under 'woman

missing'.

iii) During cross-examination, he has admitted that he has

collected Exs.P37 to P39 two (02) days after recording his chief-

examination on 18.02.2015. Exs.P37 to P9 do not contain any

endorsement to show that they supplied by the Network Authorities.

None of the witnesses examined by him stated that the deceased was

using the SIM No.9966213886. Exs.P33 to 35 do not contain the

names of subscribers of SIM Numbers. He has not examined Mr.

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Kurva Anjaneyulu, whose SIM number was used by the accused in

MO.2 mobile with dual SIM. He has further admitted that the

distance in between the first and second scene of offence is about 600

to 700 meters to his memory. Both Exs.P28 and P29 were prepared at

the second scene of offence. First scene of offence is visible to the

second scene of offence to anybody. Both the scene of offences are

open places with accessibility to one and all. Photographs were taken

with digital Camera. Separate CD for photos is not filed. PW.17

prepared MO.3 - DVD. PW.17 in his statement did not specifically

state about preparation of MO.3 by him. He did not collect any

certificate from Pw.17 certifying its sanctity as required under Section

- 65B of the Indian Evidence Act. PW.17 had not handed over MO.3

to him in any sealed cover. It was deposited into the Court on

03.10.2013, and till its deposit, the same was in his custody.

iv) He further admitted that Ex.P28 does not disclose seizure of

partially burnt hip region bones specifically, and all the skeleton

remains are seized and packed in a box and affixed slips with the

signatures of panchas. The box was opened and packed each of

skeleton remains separately with a cloth repacked and sent to FSL.

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FSL report on superimposition of skull is not filed in this case and

they did not receive skull superimposition.

18. On consideration of the aforesaid evidence, vide impugned

judgment, the trial Court recorded conviction against the accused

herein. It is the specific contention of learned counsel for the

appellant that MO.3 - DVD is not genuine and it is created for the

purpose of this case. But, as deposed by PW.18 - Investigating

Officer that confession of the accused led to recovery of the mortal

remains of the deceased at the behest of the accused. Therefore, the

said recovery part is admissible under Section - 27 of the Indian

Evidence Act, 1872. With the said findings, the trial Court

disbelieved the version of the accused with regard to MO.3 - DVD.

19. It is relevant to note that Section - 27 of the Evidence Act

deals with information received from accused may be proved, and it

says provided that, when any fact is deposed to as discovered in

consequence of information received from a person accused of any

offence, in the custody of a police-officer, so much of such

information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved. Thus, the

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essential ingredients are; i) a fact should have been discovered in

consequence of information received from accused; ii) he should have

been accused of an offence; iii) he should have been in custody of a

police officer when he supplied information; iv) the fact so discovered

should have been deposed by the witness. The said principle was laid

down by the Hon'ble Supreme Court in State of Rajasthan v. Bhup

Ram 1.

20. In the present case, the accused made extra-judicial

confession before PW.14. However, PW.14 turned hostile and he did

not support the case of prosecution. Ex.P25 is the extra-judicial

confession dated 06.06.2013. However, during cross-examination, he

has admitted that he can identify his signature. He identified signature

of witness (Ex.P15) on Ex.P25 - extra-judicial confession statement.

He is not the scribe of the said statement dated 06.06.2013. He further

admitted that he being an elderly man of their community used to visit

Khilla Ghanpur Police Station frequently for settlement of disputes.

On one occasion, the police obtained his signatures on a written paper.

Out of belief, he simply signed. In Ex.P25, PW.14 admitted his

signature which is Ex.P15 and stated that the accused came to his

. (1997) 10 SCC 675

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house and confessed about the offence committed by him. The

accused informed him that since the deceased pressuring him to marry

her, he decided to eliminate her and accordingly on 13.05.2013 he

called the deceased to Jadcherla informing her that he would marry

her at Srisailam Temple and took her on MO.1 - Motorcycle

belonging to PW.12. He took her to Srisailam Forest. He slapped her

and picked up a quarrel with her. She became unconsciousness and he

killed her by throttling. He carried the corpse a kilometer inside deep

forest and threw the dead body in a hollow place. Five (05) days

thereafter, he brought some petrol, poured over the dead body and set

ablaze. As he was apprehending the torture by the police, he

requested PW.14 to see that the police will not torture him.

21. As stated above, though PW.14 did not support the case of

prosecution, he has admitted his signature on Ex.P25 - extra-judicial

confession. It is not in dispute that the accused maintained illicit

relation with the deceased, exploited her sexually and made her

pregnant. When the deceased insisted him to marry her, he refused.

He has hatched a plan to eliminate her as she was coming in his way

in marrying a girl of his caste and to lead marital life. As on the date

of the incident, the deceased was 5½ months pregnant. Thus, both the

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accused and the deceased were in live-in relation for about 4½ years.

The accused also knew the caste of the deceased. Thus, he had

exploited her sexually, committed murder and screened the evidence.

On consideration of the said evidence, more particularly, deposition of

PWs.14 and 18 to 20 supported by medical evidence i.e., Ex.P36 -

DNA report of CDFD and Exs.P33 to 35 - call data details lists, the

trial Court recorded conviction against the appellant herein.

22. As discussed above, in the present case, there is no direct

evidence or eye-witness, and the entire case rests on circumstantial

evidence. There is no dispute with regard to legal position that relying

on circumstantial evidence, conviction can be recorded provided

circumstances relied upon by the prosecution should form a concrete

unbreakable complete chain of events. The said principle was also

held by the Apex Court in Sharad Birdhichand Sarda v. State of

Maharashtra 2, wherein it was held:

"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is

. (1984) 4 SCC 116

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Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71:AIR 1952 SC 343:1952 SCR 1091: 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh [(1969) 3 SCC 198:1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625: AIR 1972 SC 656]. It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71:AIR 1952 SC 343:1952 SCR 1091 : 1953 Cri LJ 129]:

"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

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153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v.

State of Maharashtra [(1973) 2 SCC 793:1973 SCC (Cri) 1033:1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they

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should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

23. In the present case, the prosecution relied on the following

circumstances:

i. Deceased is a divorcee and staying with her mother;

ii. The land of the accused and the deceased are adjacent and while

working in the fields, they got acquainted with each other;

iii. They were in a live-in-relation since 4½ years and stayed in the

house of PW.1 as wife and husband;

iv. She became pregnant and at the time of incident and was five

(05) months pregnancy;

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v. Panchayat was held, elders decided that the accused shall pay

Rs.3.00 lakhs to the deceased on the condition that the deceased

shall not interfere with marital life of the accused for which the

deceased refused and she offered Rs.5.00 lakhs to the accused

and insisted him to marry her for which the accused bore

grudge and decided to do away her life;

vi. Accused called the deceased on the pretext of marriage, took

her on a motorcycle belonging to PW.12;

vii. Last seen theory (PW.11);

viii. Ex.P25 - extra judicial confession made by the accused before

PW.14;

ix. Recovery of material objects followed by confession;

  x.    Ex.P36 - DNA report; and

 xi.    Call data.

The prosecution proved the said circumstances by producing legally

acceptable evidence. On the other hand, the accused failed to

disprove the same. In a case like this, minor omissions and

contradictions can be ignored. Most of the witnesses i.e., PWs.1 to 17

are illiterates and they belong to scheduled tribes.

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24. As discussed above, in the present case, seventeen (17)

witnesses i.e., PWs.1 to 17 turned hostile. Though they made

statements under Section - 161 of Cr.P.C., they turned hostile during

trial. The accused being police constable won over all the witnesses

including family members of the deceased.

25. It is also relevant to note that PW.2, mother of the

deceased, performed the marriage of the deceased, but the deceased

took divorce from her husband. Therefore, PW.2 and her sons and

other daughter are not happy with the deceased. There were strained

relations between them. Though the deceased started living with the

accused for 4½ years, they did not object the same. Though the

deceased was missing for about 25 days, PW.2 lodged Ex.P40 -

complaint only on 03.06.2013. Thereafter, she did not support the

prosecution case.

26. The trial Court relied on the confession leading to recovery.

It also gave specific findings in paragraph Nos.39 to 44 of the

impugned judgment. In paragraph No.45 of the impugned judgment,

the trial Court also gave a specific finding with regard to Section 65B

(4) of the Evidence Act. In paragraph No.48 of the impugned

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judgment, the trial Court also considered the evidentiary value of

circumstances relied upon by the prosecution. In paragraph No.49 of

the impugned judgment, the trial Court considering depositions of

PW.14 and PWs.18 to 20, gave a specific finding that the accused

committed the offences. The trial Court also relied upon the report

dated 13.05.2013 of the accused and gave a specific finding in

paragraph No.54 of the impugned judgment that the accused after

combing operation along with other officials he reported on

24.05.2013 at 9.45 hours and then went on rest for two days on

24.05.2013 and 25.05.2013 and reported the headquarters on

26.05.2013 at 10.00 hours. He again applied for leave and went on

CL on 01.06.2013 and 02.06.2013, 04.06.2013 and 05.06.2013. On

06.06.2013, he was due to report but he could not report to duty as he

was taken into custody by police in the present case. The trial Court

also considered the deposition of PW.18 - Investigating Officer on the

said aspects.

i) The trial Court also considered all the aspects including

MO.3 - DVD and Exs.P27 to 30 and depositions of PWs.18 and 19, in

paragraph No.55 of the impugned judgment held that the evidence of

PW.18 and veracity of confession made by the accused leading to

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recovery of mortal remains of the dead body proves to be that of

deceased under Ex.P36 given by PW.19.

ii) In paragraph No.56 of the impugned judgment, the trial

Court considered the incriminating circumstances against the accused

i.e., recovery of mortal remains of the deceased at the instance of the

accused. He led the police to the scene of offence and collected

mortal remains of the deceased and the same are proved to be that of

the deceased as per Ex.P36 - DNA report of CDFD, dated 19.09.2013

and the evidence of PW.19.

iii) The trial Court also considered three possibilities when an

accused points out the place where a dead body or an incriminating

material was concealed without stating it was concealed by himself

viz., i) the accused himself would have concealed; ii) he would have

seen somebody-else concealing it; and iii) he would have been told by

another person that it was concealed there. But, in the present case,

the accused did not reveal the Court about his knowledge and also

concealment. Therefore, the trial Court relying on Section - 27 of the

Evidence Act, gave a finding that the accused concealed the scene of

offence.

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iv) It is also relevant to note that the accused confessed before

PW.14 which is evident from Ex.P25 - extra judicial confession dated

06.06.2013 and PWs.15 and 16 - panch witnesses. PW.18 deposition

is also relevant on the said aspect. PW.18 collected mortal remains of

the deceased from Reserve Forest, Srisailam. Ex.P28 is the

panchanama supported by MO.3 - DVD and MO.4 - bunch of

photographs. Relying on the said depositions, the trial Court gave a

specific finding that the accused intentionally concealed the scene of

offence and the commission of offences. Thus, he screened the

evidence.

v) PW.14 is the community elder of the deceased and he used

to go to the police station frequently to settle disputes. He has

admitted his signature on Ex.P25 i.e., Ex.P15. The said signature is in

English. Thereafter, he was won over by the accused and turned

hostile. Thus, his statement that the police obtained his signature on a

blank paper cannot be believed. PW.18 specifically stated about

Ex.P25 - extra judicial confession made by the accused before PW.14.

No doubt that extra-judicial confession is a weak piece of evidence

and relying solely on the same, conviction cannot be recorded. But, in

the present case, it is supported by other evidence including scientific

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and medical evidence. Thus, on consideration of entire evidence, the

trial Court gave specific findings in paragraph Nos.57 to 59 of the

impugned judgment.

vi) The trial Court also gave a specific finding with regard to

trustworthy and reliability of deposition of PW.18 - Investigating

Officer in paragraph Nos.62 to 64 of the impugned judgment. As

rightly held by the trial Court, the appellant herein - accused failed to

establish that he was implicated falsely in the present case by PW.18

due to animosity or otherwise. The accused tried to demolish the call

data obtained by PW.18 - Investigating Officer. The Investigating

Officer has collected the call data particulars of mobiles of both the

accused and the deceased who were in live-in relation for 4½ years.

Their lands are adjacent to each other. They are from neighbouring

villagers. Therefore, the accused knows the community of the

deceased. On consideration of the said aspects, the trial Court gave a

finding that the appellant - accused is also guilty of the offence under

Section - 3 (2) (v) of the Act, 1989.

27. As discussed supra, the impugned judgment is based on the

evidence, both oral and documentary. It is a reasoned judgment and

well-founded. The appellant - accused failed to make out any case to

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interfere with the said judgment. Thus, the present appeal fails and the

same is liable to be dismissed.

28. The present Criminal Appeal is accordingly dismissed

confirming the judgment dated 18th & 20th January, 2016 passed by

learned Special Sessions Judge - cum - VII Additional District and

Sessions Judge, Mahabubnagar in S.C. No.31 of 2014.

As a sequel thereto, miscellaneous applications, if any, pending

in this appeal shall stand closed.

__________________ K. LAKSHMAN, J

__________________ K. SUJANA, J 7th June 2024 Mgr