Telangana High Court

Kandula Nagaraju, Khammam And Anr., vs State Of Telangana, Rep Pp And Anr., on 13 June, 2024

Author: P.Sam Koshy

Bench: P.Sam Koshy

            THE HON'BLE SRI JUSTICE P.SAM KOSHY
                          AND
      THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

                 CRIMINAL APPEAL No.368 of 2015

JUDGMENT:

(per the Hon'ble Sri Justice P.SAM KOSHY)

The instant is an appeal under Section 374(2) of Cr.P.C

preferred by the appellants - accused assailing the judgment of

conviction dated 30.03.2015 in Sessions Case No.476 of 2014 passed

by the Court of the Judge, Family Court-cum-Addl. Sessions Judge

at Khammam.

2. Heard Mr. Nazeer Khan, learned counsel for the appellants and

the learned Public Prosecutor appearing for the respondent - State.

3. Vide the impugned judgment, the Trial Court found the

appellants guilty of the charges punishable under Section 302 read

with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC') and

have sentenced them to undergo imprisonment for life with fine of

Rs.5,000/- each and in default to suffer simple imprisonment for

three (03) months.

4. The facts of the case in brief are that on 03.02.2014,

Smt. Shaikh Haneefa W/o. Sk.Abdullah lodged a missing complaint

at Police Station, I town, Khammam stating that her husband has

gone missing since 31.01.2014 from around 7:00 PM onwards. It was

said that her husband had left the house immediately on receiving a

phone call wherein the caller had asked him to meet him.

Meanwhile, however, on 02.02.2014, the dead body was recovered

from Munneru River near Karunagiri Bridge. The body was to some

extent decomposed as the fish and frogs in the water or the other

creatures in the water had eaten away some portion of the body, as

there were irregular injuries on ears, eyes etc. A report was

registered at Police Station, Khammam Rural where in turn, the case

was registered as Crime No.46 of 2014 under Section 174 Cr.P.C and

the matter was put up for investigation.

5. The complainant Smt. Shaikh Haneefa who lodged the missing

report was intimated from the authorities concerned and on

04.02.2014 she identified the dead body to be that of Sk.Abdullah

(hereinafter, the 'deceased') and the police authorities subsequently

took up the matter for enquiry considering it to be a case of

drowning/suicide etc. Subsequently, on 15.06.2014, PW.5 took

appellant Nos.1 and 2 to the Police Station, Khammam Rural and

said that the appellant Nos.1 and 2 had made an extra judicial

confession before him so far as murdering of the deceased whose

dead body was found on 02.02.2014. In the course of the confession,

the appellant No.1 had informed PW.5 that he was having an illicit

and extra marital affair with the wife of the deceased and that they

had jointly decided to eliminate the deceased and in the process the

appellant Nos.1 and 2 killed and thrown the body into the Munneru

River near Karunagiri Bridge. Based upon the said alleged

confessional statement, the wife of the deceased was also made as

accused No.3 for the offence punishable under Section 302 of IPC

and the matter was thereafter put to trial where the case was

registered as Sessions Case No.476 of 2014.

6. The prosecution in all examined sixteen (16) witnesses. But

there were no witnesses examined in defence. Subsequently, after

recording the statement of the appellants under Section 313 of

Cr.P.C, the Trial Court went on to decide the case and finally the

impugned judgment was passed where the appellants herein were

found guilty of the offence under Section 302 of IPC and have been

ordered to undergo sentence of life imprisonment with fine of

Rs.5,000/- and with default stipulation. The accused No.3 i.e. the

wife of the deceased however was acquitted of all the charges, as the

prosecution was not able to prove the case under Section 302 of IPC

or for that matter under Section 109 of Cr.P.C against accused No.3.

7. It is this judgment of conviction of the two appellants herein

which is under challenge in the present appeal.

8. Learned counsel for the appellants assailing the impugned

judgment contended that the entire case of the prosecution is based

on assumption and surmises. It was further contended that, it is a

case where the investigation suddenly started on 15.06.2014 on the

basis of the extra judicial confession made by the two appellants

before PW.5 who in turn took them to the Police Station which is

highly improbable upon reading the entire case diary materials

available.

9. According to the learned counsel for the appellants upon plain

reading of the witnesses examined after 15.06.2014, would by itself

reveal that there were so many omissions and contradictions in their

statements and all of which put together appear to be so unnatural

and highly doubtful so far as the deposition and the statement of

these prosecution witnesses being genuine. It was also contended

that if the statements of three main witnesses relied upon by the

prosecution i.e. PWs.5, 6 and 7 are compared and assessed keeping

one another just opposite each other, it would, as indicated earlier

clearly reflect that the statements given by those persons are totally

false and that it would also clearly reveal that these statements have

been made at the behest of somebody operating from outside or in

the pressure of police authorities or the investigating agency.

10. According to the learned counsel for the appellants there is a

considerable gap from the time the dead body was recovered on

02.02.2014 and the missing complaint being lodged thereafter on

03.03.2014 and on 15.06.2014 when PW.5 is said to have allegedly

taken the appellants to the police authorities declaring them to have

committed the crime on the basis of the so-called extra judicial

confession made by the appellants before PW.5 which is highly

doubtful. It was the further contention that prosecution has not been

able to collect any strict evidence against the appellants and the

entire evidence is based on the circumstances or circumstantial

evidence. However, even in the case of circumstantial evidence, there

has to be a chain of links which stand interlinked and proved beyond

reasonable doubt for the Court to reach to a conclusion that the

offence could not have been committed by anybody else but for the

appellants alone.

11. In the instant case, it was argued that this chain of evidence

also is miserably missing so as to hold that the appellants were

guilty of having committed the murder of the deceased. At the same

time, the prosecution has also failed to conduct the investigation in a

more pragmatic manner by which even the so-called evidences which

they have collected have been also scientifically tested enabling the

Courts to reach to a positive conclusion.

12. According to the learned counsel for the appellants there is no

material cogent and strong enough to show as to what the

investigating agencies were doing in between 02.02.2014 to

05.06.2014 i.e. for a period of almost five (05) months. It was the

contention of the learned counsel for the appellants that the

prosecution has not been able to convincingly establish as to why the

appellants in fact chose to make the alleged extra judicial confession

before PW.5 with whom there does not seem to be strong intimacy or

PW.5 holding any such prestigious or dignified position in the society

or PW.5 was considered as a village elder. Which all the more

weakens the case giving rise to a strong doubt on the veracity of the

statement given by PW.5.

13. Learned counsel for the appellants also referred to the

statements of PW.6 and doubted his version on the ground that PW.6

is only a salesman of a wine shop. PW.6 alleges that the appellants

and the deceased have gone to the shop where he is the salesman

and purchased wine and then left his shop. This statement also is

being made after about six (06) months which is normally impossible

to remember particularly if it is a wine shop or any other shop which

customer had come on which date. This further gives rise to serious

doubts on the prosecution story.

14. As regards the PW.7, it was also the contention of the learned

counsel for the appellants that he is a interested witness, as he is

said to be related to the family of the deceased and his version is also

no less doubtful. Learned counsel for the appellants further

submitted that the entire case of the prosecution gets falsified only

on perusal of the postmortem report which gives an altogether

different cause of death of the deceased.

15. Thus, for all the aforesaid reasons, the learned counsel for the

appellants prayed for setting aside of the impugned judgment of

conviction and sought for acquittal of the appellants.

16. Per contra, the learned Public Prosecutor opposing the instant

appeal submits that from plain reading of the evidences of PWs.5, 6

and 7 the entire case of the prosecution stands established. The case

of the prosecution further gets strengthened on the basis of the

deposition of PW.2, the father of the deceased. According to the

learned Public Prosecutor, the appellants herein had reached the

house of PW.5 whom they knew since long and there it is said that

they have made confession of having murdered the deceased on

31.01.2014 in connaissance with accused No.3, the wife of the

deceased.

17. Learned Public Prosecutor contended that it was a case where

the confession was that of appellant No.1 who is said to have had an

illicit extra marital affair with the wife of the deceased and in the

process they had decided to eliminate the deceased so as to stay

together. In the course of the confession, according to the learned

Public Prosecutor, the appellant No.1 had disclosed of them

travelling with the deceased to Munneru River where they decided to

have drinks. That evening enroute they had stopped at the shop of

PW.6 for purchasing wine and proceeded further. According to the

confession statement of PW.5, the appellant No.1 stated that they

had engaged PW.7's auto for travelling to the river bank and after

three of them had consumed liquor at the river bank they assaulted

the deceased. Thereafter, thinking him to have died, they threw the

body into the river and left the place back in the auto of PW.7. Thus,

all these facts are sufficient indications of the manner in which the

appellants had committed the crime and prayed for dismissal of the

appeal without interfering with the judgment of conviction.

18. Having heard the contentions put forth on either side and on

perusal of records, the admitted factual matrix are that, on

31.01.2014 the deceased went missing from his house in the evening

and his wife lodged a missing complaint on 03.02.2014. Before that

itself, the dead body of the deceased was recovered by the Police

Station, Khammam Rural and there does not seem to be any further

progress made on the missing complaint made by the wife of the

deceased or after the recovery of the body also there was no

substantial development. Thereafter, there was a gap of more than

five (05) months and suddenly out of blue, PW.5 is said to have taken

the appellant Nos.1 and 2 to the Police Station contending that they

have confessed before him of having killed the deceased and having

thrown his body in the Munneru River near Karunagiri Bridge. The

reason why the appellants chose to go to PW.5 to make the

confession is not reflected, nor was he considered as a village elder

or some person holding a responsible status in the village.

19. Now analyzing the evidences that have come on record, PW.2 in

his evidence stated that in the past, the wife of the deceased is said

to have eloped with appellant No.1 and there was a missing

complaint lodged by the deceased and subsequently the wife of the

deceased is said to have lodged some criminal complaint against

PW.2 and his son, the deceased. That followed by an intervention of

the panchayat elders, there was a compromise arrived at and the

deceased and his wife both started living together. This being the

statement of PW.2, when his son went missing on 31.01.2014, we

have no doubt that the first reaction of PW.2 would had been of

suspecting the appellant No.1 and his wife for death of the deceased.

Likewise, PW.7 who is said to be a relative of the deceased on whose

auto the deceased and the appellants said to have travelled to the

river bank also kept silent for five (05) months to even disclose to the

police authorities that on the fateful day, he had taken three of them

to the river bank. However, only two had returned which could have

definitely led stronger suspicion against the appellants for the police

to further probe into the matter. For this reason, the statement of

PW.7 is to be doubted and is to be looked with great amount of

suspicion. Another reason to doubt the version of PW.7 is that

admittedly appellant No.2 also was an auto driver and if appellant

No.2 had conspired along with appellant No.1 to eliminate the

deceased, they would not have hired the auto of PW.7 who is one of

the relative of the deceased, rather they would had gone to the river

bank on the auto of the appellant No.2 himself.

20. As regards the averment of PW.6, his version also is highly

improbable for the reason that his statement also is being recorded

after more than five (05) months. During this interregnum period

also he had not informed to anybody of having witnessed the

appellants and the deceased to have gone to his shop on the evening

of 31.01.2014 to purchase wine from his shop and proceeded

further. For this very reason his statement becomes doubtful and

suspicious. Further, it is also normally impossible for a salesman of

a wine shop to recollect the customers who had come 5-6 months

back in his shop. This also raises doubts so far as the version of

PW.6 is concerned.

21. Last but not the least, the entire prosecution case is that the

appellants first assaulted the deceased, killed him and then thrown

him into the river. If we look at the postmortem report, it would

reveal that the Doctor has clearly opined the cause of death to be

that of drowning as there was water found in the lungs of the

deceased which could have entered into the lungs only if the

deceased falls in the river alive and in the course of drowning, water

has entered into his lungs. The fact that the medical evidence shows

that the deceased having died of drowning with the material evidence

of water being found in his lungs, the case of the prosecution that

the appellants had first killed the deceased and thereafter thrown the

body into the river does not match or sounds logical. All these

discrepancies raises serious doubts on the prosecution case as also

the version of PWs.2 to 13.

22. The Hon'ble Supreme Court in the case of Sharad Birdhi

Chand Sarda vs. State of Maharashtra 1 laying down the basic

principles of circumstantial evidence held at paragraph Nos.153 and

154 as under:

"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 ShivajiSahabraoBobade v. State of Maharashtra 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 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

(1984) 4 SCC 116

(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. Further, the Hon'ble Supreme Court in the case of Majenderan

Langeswaran vs. State (NCT of Delhi) 2 considering the case of

conviction based on circumstantial evidence held as under:

"The legal issue under consideration was whether the circumstantial evidence presented in the case was enough to sustain the conviction.

The court made clear that in cases where the evidence is of a circumstantial nature, certain rules must be adhered to. Firstly, the circumstances from which the conclusion of guilt is drawn must be fully established. This means that each fact that points to the guilt of the accused must be proven individually and beyond a reasonable doubt.

Further, the court emphasized that the proven circumstances should be consistent only with the hypothesis of the accused's guilt. This means that the facts established should point towards the guilt of the accused and no one else. Moreover, these circumstances should be of such a conclusive nature and tendency that they exclude every other hypothesis but the one proposed to be proved.

In this context, the court cited several past judgments. For instance, in the case of HanumantGovindNargundkar v. State of M.P 3., the court observed that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

(2013) 7 SCC 192

(1952) 2 SCC 71

The court also referred to the case of Padala Veera Reddy v. State of A.P 4., where it was stated that circumstantial evidence, in order to sustain conviction, must be complete, conclusive, and incapable of explanation of any other hypothesis than that of the guilt of the accused.

This key principle was reinforced in a series of other cases, such as C. Chenga Reddy v. State of A.P 5., Ramreddy Rajesh Khanna Reddy v. State of A.P 6., and Sattatiya v. State of Maharashtra 7.

In the case of G. Parshwanath v. State of Karnataka 8, the court went a step further and explained that while dealing with circumstantial evidence, a distinction must be made between primary or basic facts and inferences of facts to be drawn from them. This means that the court must not only evaluate whether a fact is proven, but also whether that fact leads to an inference of the accused's guilt.

As the Hon'ble Supreme Court held that there should be no dispute with regard to the legal proposition that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence where all circumstances must lead to the conclusion that the accused is the only one who has committed the crime and none else."

24. For the aforesaid reasons and the judicial precedents referred

above, we find that the prosecution has not been fatefully able to

prove the involvement of the appellant Nos.1 and 2 in the murder of

the deceased. The judgment of conviction therefore deserves to be

and is accordingly set-aside/quashed and the appellant Nos.1 and 2

stand acquitted of all the charges leveled against them. If the

1989 Supp (2) SCC 706

(1996) 10 SCC 193

(2006) 10 SCC 172

(2008) 3 SCC 210

(2010) 8 SCC 593

appellant Nos.1 and 2 are in jail, they be set free, unless they are not