Masllisetty Bhanu Kiran Or Bhanu vs The State Of Telangana
2024 Latest Caselaw 1823 Tel

Telangana High Court

Masllisetty Bhanu Kiran Or Bhanu vs The State Of Telangana on 2 May, 2024

Author: K. Lakshman

Bench: K.Lakshman, P.Sree Sudha

             HON'BLE SRI JUSTICE K. LAKSHMAN
                                  AND
            HON'BLE SMT. JUSTICE P. SREE SUDHA

               CRIMINAL APPEAL No.3338 OF 2018

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. T. Niranjan Reddy, learned senior counsel representing

Mr. Ambati Sreekanth Reddy, learned counsel for the appellant -

accused No.1 and Mr. Palle Nageswara Rao, learned Public Prosecutor

appearing on behalf of respondent.

2. This appeal is filed challenging the judgment dated 18.12.2018

in S.C. No.26 of 2012 passed by learned I Additional Metropolitan

Sessions Judge - cum - Special Judge for Trial of Cases under Protection

of Children from Sexual Offences Act, 2012 (for short 'trial Court').

3. The appellant herein is arraigned as accused No.1 in the

aforesaid S.C. No.26 of 2012. Vide the aforesaid judgment, the trial

Court convicted the appellant herein - accused No.1 for the offences

punishable under Section - 302 of IPC and Section - 27 (2) of the Arms

Act and accordingly imposed life imprisonment on him and to pay a fine

of Rs.20,000/- (Rupees Twenty Thousand Only) and in default to

undergo simple imprisonment for the offence under Section - 302 of

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IPC. He was further sentenced to undergo rigorous imprisonment for ten

(10) years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand

Only) and in default to undergo simple imprisonment for one (01) year

for the offence under Section - 27 (2) of the Arms Act.

4. The case of the prosecution is as follows:

i) PW.9 - Mr. Madhu Mohan Reddy, an eye-witness, gave a

written complaint to PW.87 - Inspector of Police, Banjara Hills Police

Station, Hyderabad, stating that on 03.01.2011 at about 3.30 P.M., he

along with Maddelacheruvu Suri (hereinafter referred to as 'deceased')

and the appellant herein left Alekhya Apartments, Madhapur, Hyderabad

in a Skoda Fabia Car bearing registration No.AP 28DF 1248 (MO.1),

went to Sanathnagar and met Mr. Achutha Reddy, Advocate and

Ramakrishna Reddy.

ii) After discussions, they all left in the same Car at about 4.30

P.M. to meet PW.5, who is living at Banjara Hills. PW.9 was driving the

car, whereas the deceased was sitting in front seat beside him, while

appellant was sitting in the rear seat and were proceeding to the house of

PW.4.

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iii) At that time, the Car window glasses were rolled up and AC

was on. The car was passing via Navodaya Colony and the speed was

about 20-25 kilometers per hour. At that time, PW.9 heard two gun

shots in the Car and also saw heavy smoke, then he slow down the car.

Appellant got down from the car saying that there was an attack from

outside and the deceased fell down on the thigh of PW.9. Blood was

oozing out from the head of the deceased.

iv) Then, PW.9 called accused No.1 over his cell phone, but

accused No.1 disconnected the call saying that he would talk later. PW.9

informed about the incident to PW.4 over phone and shifted the deceased

to Apollo Hospital, Jubilee Hills, Hyderabad, in the same car for

treatment. The gunman of accused No.1 carried a small gun.

v) Basing on the complaint of PW.9, PW.87 registered a case in

Crime No.13 of 2001 under Sections - 307 of IPC and Section - 27 of the

Arms Act and took up investigation.

vi) During the course of investigation, MO.1 - Skoda Car in

which the incident had occurred was seized under the cover of

panchanama in the presence of PW.39 and PW.40 on 03.01.2011 and

seized two-cell phones from the said car.

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vii) On 03.01.2011 at 7.55 P.M., the deceased succumbed to

bullet injuries. Therefore, the section of law was altered to Section - 302

of IPC.

viii) While the investigation was in progress, on 05.01.2011, on

the instructions of the Commissioner of Police, Hyderabad City, the case

file was transferred to CCS, Hyderabad and the same was re-registered

by PW.61 - S.I. of Police in Crime No.6 of 2011 under Section - 302 of

IPC and Sections - 25 and 27 of the Arms Act and handed over the case

file to PW.90 - Inspector of Police for further investigation.

ix) After completion of investigation and collecting the evidence

including medical evidence, the police filed charge sheet and, thereafter,

it was committed to the Sessions Judge vide S.C. No.26 of 2012.

5. The learned Sessions Judge after framing charges for the

offences proceeded with trial. During trial, PWs.1 to 92 were examined

and Exs.P1 to P150 were marked and so also MOs.1 to 56. On behalf of

the accused, no oral evidence was let in, however, Exs.D1 to D3 were

marked on their behalf.

6. The learned Sessions Judge after hearing both sides, recorded

conviction against the appellant for the aforesaid offences by imposing

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the sentence of imprisonment including life. Challenging the same, the

appellant herein preferred the present appeal.

7. Mr. T. Niranjan Reddy, learned senior counsel appearing for the

appellant contended as follows:

i. The alleged incident occurred on 03.01.2011, whereas, the date of

arrest of the petitioner was on 21.04.2012;

ii. Though PW.9 is eye witness to the incident, he did not support the

case of prosecution as he turned hostile, and remaining

prosecution witnesses did not support the prosecution case. What

all PW.9 deposed that he heard sound, and except that, nothing

spoken by him;

iii. Recovery of MOs.41 and 42 were illegal as the same were planted

showing recovery from the appellant for the reason that PWs.83

and 84, panch witnesses, did not identify the appellant herein;

iv. According to the evidence of PW.89, MOs.43, 44, 49, 50, 51 and

52 were recovered after one year. This circumstance also tilts the

case of prosecution;

v. Recovery was not proved as the panch witnesses did not support

the same. In fact, procedure was not followed for the alleged

recovery;

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vi. As per PW.52 - doctor, the death was instantaneous, whereas

according to PW.9, the deceased was brought to the hospital alive

and he was treated there for a while. In view of the same, it is

clear that the evidence of PW.52 and PW.9 are contradictory with

each other. As stated above, except the evidence of PW.9 and

PW.52, there is no other evidence to connect the appellant herein

with the aforesaid case. But, the evidence of PW.9 is not

trustworthy and, therefore, the case of the prosecution has to be

disbelieved;

vii. Chain of events were missed at every stage to connect the

appellant with the aforesaid case and, therefore, on this ground

also, the prosecution case has to be disbelieved;

viii. Further, in this case, except the evidence of PW.9, who in fact, did

not depose as to who shot at the deceased, there is no direct

evidence and the entire case rests on circumstantial evidence,

which is also lacking in this case;

ix. The trial Court erred in appreciating the evidence of PW.1, the

wife of the deceased that her husband was having life threats from

several persons; and

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x. The trial Court without considering all the aforesaid aspects,

convicted the appellant erroneously and on assumptions and

presumptions. Therefore, the conviction and sentence of life

imprisonment recorded against the appellant herein are liable to be

set aside.

8. On the other hand, Mr. Palle Nageswara Rao, learned Public

Prosecutor made the following submissions:

i. PW.9 is the eye-witness to the incident. Though he turned hostile,

his evidence is clear and clinching to show that while driving the

car, he heard the sound and immediately the appellant got down

the car and went away. This itself shows that the appellant

committed the aforesaid offences. In the car, PW.9, deceased and

the appellant herein were alone travelling. Therefore, though

PW.9 turned hostile, but it can be presumed that the appellant

herein committed the aforesaid offences. Though there is no

direct evidence as to who shot at the deceased, by taking

presumption that only three persons were in the car and that after

hearing the sound by PW.9, the appellant left the place, it can be

inferred that the appellant herein committed the aforesaid offence;

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ii. Apart from the aforesaid evidence, there is also medical evidence

through PW.52, the doctor, who conducted post-mortem over the

dead body of the deceased and the post-mortem examination

report - Ex.P101, anti-mortem injuries were found on the dead

body of the deceased;

iii. The appellant herein is a factionist and was convicted in a murder

case, wherein life imprisonment was imposed on him. While he

was on remission, he committed the aforesaid offence by killing

the deceased. That apart, twenty four (24) cases were registered

against him at different police stations of which twelve (12) were

acquitted and the remaining are pending for trial. The offence

committed by him is serious and grave; and

iv. The evidence of prosecution witnesses would prove the guilt of

the appellant herein beyond reasonable doubt. The trial Court

gave specific reasoning by referring to the depositions of

prosecution witnesses and the documents as mentioned in the

impugned judgment. There is direct evidence through PW.9. The

trial Court considering the same and also considering other

circumstantial evidence, recorded the conviction for the said

offences. He would further contend that the trial Court is having

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power to record conviction. Impugned judgment is a reasoned one

and it does not require interference.

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

Court is:

Whether the conviction and sentence of imprisonment recorded by the trial Court for the offences under Section - 302 of IPC and Section - 27 (2) of the Arms Act against the appellant herein - accused No.1 are sustainable, both on facts and in law?

10. The case of the prosecution against the appellant herein is that

this appellant and other accused conspired with each other to eliminate

the deceased. In pursuance of the same, on 03.01.2011 at about 3.30

P.M., when PW.9 along with the deceased and the appellant left Alekya

Apartments, Madhapur, Hyderabad, in a Skoda Car, went to

Sanathnagar, met PW.13. Later while proceeding to the house of PW.4

and when the car was passing via Navodaya Colony with a speed of 20-

25 kilometer per hour, the appellant herein who was sitting in the back

seat of the car, shot the deceased twice with 0.32 revolver given by

accused No.2 in the head of the deceased, due to which the deceased

died while undergoing treatment at the hospital.

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11. In the present case, PW.9 is the only witness who saw the

incident. Except him, there is no other witness to speak about the

incident. Though PW.9 turned hostile, whether his evidence would be

helpful to the prosecution must be seen to find the accused guilt of the

aforesaid offences or not. It is settled law that though a witness turned

hostile, his evidence to the extent useful can be relied upon. Apart from

the same, relying on the circumstantial evidence conviction can be

recorded, if the circumstances relied upon by the prosecution forms a

complete chain. In view of the same, this case relies on most of the

circumstantial evidence.

12. The law with regard to conviction on the basis of

circumstantial evidence has very well been crystalized in Sharad

Birdhichand Sarda v. State of Maharashtra 1, wherein the Hon'ble

Supreme Court held thus:

"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 Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71:AIR 1952 SC 343:1952 SCR 1091:

. (1984) 4 SCC 116

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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."

153. A close analysis of this decision would show that the following conditions must be fulfilled before

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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 should not be explainable on any other hypothesis except that the accused is guilty,

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(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."

13. It can thus clearly be seen that it is necessary for the

prosecution that the circumstances from which the conclusion of the

guilt is to be drawn should be fully established. The Court holds that it is

a primary principle that the accused 'must be' and not merely 'may be'

proved guilty before a court can convict the accused. It has been held

that there is not only a grammatical but a legal distinction between 'may

be proved' and 'must be or should be proved'. It has been held that the

facts so established should be consistent only with the guilt of the

accused, that is to say, they should not be explainable on any other

hypothesis except that the accused is guilty. It has further been held that

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the circumstances should be such that they exclude every possible

hypothesis except the one to be proved. It has been held that 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 probabilities the act must have been done by the

accused.

14. It is settled law that the suspicion, however strong it may be,

cannot take the place of proof beyond reasonable doubt. An accused

cannot be convicted on the ground of suspicion, no matter how strong it

is. An accused is presumed to be innocent unless proved guilty beyond

reasonable doubt.

15. In C. Chenga Reddy v. State of A.P. 2, the Apex Court held

as under:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be

. (1996) 10 SCC 193

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consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".

16. In the light of the above guiding principles, we will have to

examine the present case. The crucial witness in this case is PW.9 as he

was present when the incident occurred. Though PW.9 - Mr. V. Venkata

Madhu Mohan Reddy, was declared hostile by the prosecution, but to the

extent useful his evidence can be taken into consideration.

17. PW.9, in his evidence, deposed that he was running an

electrical shop in the name of Shiva Electronics at Ameerpet,

Hyderabad. One Mr. Ram Mohan Reddy used to visit his shop. In the

year 2002, the Task Force Police came and enquired him about the said

Ram Mohan Reddy. Then he showed his house and the police registered

a case against him and remanded to judicial custody. While he was in

Jail, he got acquaintance with the appellant herein, who was also in jail.

He further deposed that after release from the hail, the relatives of the

deceased took him to the Cherlapally Jail, wherein the deceased was

lodged and introduced him to the deceased. The deceased introduced

him to his wife (PW.1). He and his family hail from Congress Party.

The deceased informed him that his wife is also interested in joining

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politics. He used to visit PW.1 regularly and in the year 2006 he shifted

to Bengaluru.

i) PW.9 further deposed that in the year 2009, the deceased

released from Jail and used to reside in Banjara Hills and he used to meet

him regularly. Accused No.1 used to be with the deceased and used to

fulfill his office matters. On the date of incident, he came to Hyderabad

and met the deceased in the morning. After meeting the deceased, he

went to Suresh Wheels Shop at Banjara Hills for alignment of his Innova

Vehicle wheels wherein he met accused No.1. Then he got interaction

with the appellant herein, who informed him that he was going to meet

the deceased. After completion of his alignment work, he went to the

Alekya Apartments, wherein the deceased was residing. By the time the

deceased was having his lunch and he asked him to join for lunch. By

that time, PW.3, PW.17 and some other persons were present whom he

cannot identify. Meanwhile, the appellant herein came there at about

2.30 P.M. and got his lunch and asked him to sit outside and he does not

know about their discussion. Then, the deceased asked him to join him

(deceased) to go out. Then, he was asked to drive the Skoda Car and the

deceased and accused No.1 joined in the Car.

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ii) PW.9 further deposed that the deceased sat beside him. He

does not know whether other vehicles left prior to their car. They went

to Sanath Nagar via Madhapur and Moosapet. When they reached

Allwyn Quarters at Sanathnagar, the deceased asked him to stop the car

and got down from the car and the deceased and accused No.1 joined

another car which was parked there. After thirty or forty five minutes,

again they came to him, where he stayed and directed him to go to the

house of PW.4. By that time, the deceased sat beside him and accused

No.1 sat behind him. By that time, the deceased was smoking. From

there they started their vehicle and entered into Navodaya Colony,

meanwhile because of the speed breakers he applied brake and heard a

sound. Meanwhile, the deceased fell on his lap and by that time, accused

No.1 got down from the car saying that somebody attacked and said that

"Attack, Attack". Meanwhile, public gathered there and he gave call to

accused No.1 but he did not lift the phone and avoided his call. Then, I

made a call to PW.3, but he did not lift the phone. Then, he made a call

to PW.4 and informed the incident. Then, the injured was shifted to

Apollo Hospital, Jubilee Hills. Thereafter, on observation, the doctors

announced that his pulse was in operation and after one hour the doctors

declared him dead. Thereafter, he lodged a report (Ex.P3) before the

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Police, Banjara Hills. The police seized his clothes. MO.2 his grey

colour Pant with blood stains and brown colour leather belt. MO.3 is the

white single line checks full hands shift. The police did not record his

statement. At that stage, learned Additional Public Prosecutor declared

him hostile and cross-examined the said witness. However, nothing was

elicited from PW.9 during cross-examination by the Additional Public

Prosecutor.

iii) During cross-examination by the appellant No.1, PW.9

admitted that the deceased is accused No.1 in Jubilee Hills Bomb Blast

case. Nothing incriminating was elicited from this witness by the

appellant herein during cross-examination.

18. PW.1 - wife of the deceased, PW.2 and PW.3 - cousins of the

deceased, PW.4 - classmate of the deceased, PW.5 - husband of PW.4

are all circumstantial witnesses and they spoke about the nexus between

the appellant and the deceased.

19. According to PW.52, the doctor who conducted autopsy over

the dead body of the deceased, he found three (03) external injuries and

seven (07) internal injuries. He opined that the cause of death was bullet

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injuries to the brain and spinal cord. He issued Ex.P101 - PME report

dated 04.01.2011.

20. PW.53 - the then Scientific Officer in Forensic Science

Laboratory, Hyderabad, deposed that item Nos.1 to 4 cotton swabs; item

No.5 contains cotton swab (control); item No.6 contains some hair; item

No.7 contains cotton swab with dark brown stains and item No.8

contains lead pieces. According to him, traces of lead is present on the

cotton swabs (item Nos.1 and 3) and item No.8 lead pieces could have

been separated from lead bullet (s) after discharging from any fire arm

probably 0.32 inch caliber revolver and item No.8 comes under the

purview of Arms Act. On his physical examination, he found that item

Nos.1 and 2 are to be a country made pistol and country made Magazine

respectively. Item Nos.3 and 4 are found to be company made 9 mm

illiberal rimless cartridges. He also testified item No.1 by loading a

cartridge from item No.3, it fired well. The cartridges in item Nos.3 and

4 are found to be live. He gave his opinion that item No.1 is a country

made pistol with chambering 9 mm. caliber rimless cartridges.

21. According to PW.54, the then Assistant Director in Forensic

Science Laboratory, Hyderabad, on 11.01.2011 she received one sealed

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paper parcel containing blood stains over the clothes. She further

deposed that after performing bio-chemical and immunological test,

human blood is detected on item Nos.1 to 12. Blood group of blood

stains on item Nos.1, 2, 3 and 6 to 12 is of 'B' blood group. Blood group

of blood stains on item Nos.4 and 5 could not determine. Blood is not

detected on item No.13 which is received as control for item Nos.9 to 12.

MOs.4, 5, 6, 2, 3 and 40 are the clothes sent to her for examination. She

examined them which are item Nos.1, 2, 3, 6, 7 and 8.

22. PW.17 is one of the circumstantial witnesses and escort party

member of the deceased. He deposed that on the date of incident,

accused No.1 asked him to leave first and also informed him that they

would follow them. Accused No.1 also directed them to wait at Toyota

Show room at Sanathnagar. On hearing the same, he and LW.8, Vishnu,

Suresh, Prasad and Venkataramana left for Toyota show room and they

were waiting there. Accused No.1 also informed him after their leaving

they would follow them. He received a phone call from PW.4 at about

5.00 to 5.30 P.M. in which she informed him that the deceased was fired

by somebody.

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23. PW.38, panch witness for inquest held over the dead body of

the deceased vide Ex.P50 - inquest report.

24. PW.67, Head Constable in Intelligence Security Wing,

Hyderabad deposed about recovery of incriminating material at the

instance of accused No.2 i.e., two used cartridges (MO.45) within a

distance of three yards from one cartridge and to another cartridge near

Rudraram Village of NH No.9.

25. PW.87 - Inspector of Police deposed that after receipt of

information from Apollo Hospital, Hyderabad, he found PW.9 and gave

Ex.P3 report. Then they registered a case in Crime No.13 of 2011 for

the offences under Sections - 307 of IPC and Section - 27 of the Arms

Act. He examined PWs.9, 2, 3, 4 and 5 and recorded their statements.

Later, he proceeded to the scene of offence and conducted scene of

observation panchanama (Ex.P137) in the presence of PW.39 and 40

and also drawn rough sketch (Ex.P138). He seized the Car at Apollo

Hospital which is MO.1. He also collected blood stains on swabs, finger

prints and seized two cell phones (MOs.7 and 8). As the deceased died,

he altered the section of law from 307 to 302 IPC.

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26. PW.88 - Inspector of Police, CID, Hyderabad, deposed that as

per the instructions of Investigating Officer, he visited Ananthapur and

Bangaluru and secured the presence of PWs.10, 11, 16, 18, LW.27,

PWs.33, 49, 24, 30 and 26, examined them and recorded their

statements.

27. With regard to acquaintance of the deceased with accused

No.1, there is no dispute with regard to identity of the deceased as

Maddellacheru Suryanarayana Reddy @ Suri as he was identified by his

wife/PW.1 and PWs.2, 3, 5, 9, 10, 11, 13, 17, 18 and 26 and their

evidence establishes the acquaintance between the deceased and the

appellant herein. Even, accused No.1 did not dispute the identity of the

deceased and his acquaintance with him. On the analysis of the said

evidence, the trial Court held that both the accused and deceased are

acquainted with each other. The said finding is on sound reasoning.

28. With regard to enmity between the deceased and accused

No.1 and motive to commit the murder of the deceased by the accused, it

is apt to note that there were disputes between the deceased and accused

No.1 with regard to the settlements and financial matters and the

deceased abusing accused No.1 in filthy language. The evidence of

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PW.1, wife of the deceased, shows the close acquaintance between the

deceased and accused No.1. Whenever, she asks the deceased for

money, the deceased used to send money through accused No.1, who

used to look after the financial matters of the deceased. Accused No.1

used to make settlements and collects the amounts in the name of

deceased without his knowledge and to avoid the payments received by

accused No.1 and accused No.1 fired the deceased and caused his death.

The evidence of PW.1 is supported by the evidence of PW.17, who also

deposed that PW.9 and accused No.1 used to see the affairs of the

deceased and used to make settlements of the affairs of the deceased.

Thus, the evidence of PW.1 and PW.17 shows that there were financial

issues between the deceased and accused No.1. Thus, accused No.1 bore

grudge on the deceased. After developing the enmity, accused No.1 had

developed motive to commit the murder of the deceased. On

consideration of the legal and acceptable evidence, the trial Court gave a

finding that the prosecution has proved the motive beyond reasonable

doubt, and there is no error in it.

29. Coming to the last seen theory, the trial Court relied upon the

evidence of PW.9, 3, 17 and 6, whose evidence was already discussed

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above. In view of the said evidence, it is clear that accused No.1 was

present with the deceased as well as PW.9 till the incident occurred.

Even, accused No.1 also did not dispute about his presence with the

deceased soon before occurring of the incident. Thus, the last seen also

proved by the prosecution and the finding given by the trial Court on the

said aspect is also on sound reasoning.

30. With regard to the accused fleeing from the scene of offence

soon after the incident, the evidence of PW.9 is relevant. Relevant

portions in his statement recorded under Section - 161 of Cr.P.C.,

marked as Exs.P4 to P6 to the effect that the window glasses of the car in

which the deceased, accused No.1 and PW.9 were travelling, were rolled

up at the time of incident and there is no scope for any other persons to

fire at the deceased, who was inside the car and accused No.1 himself

shot at the deceased and got down from the car and fled away from the

scene of offence. The evidence of PW.9 coupled with Exs.P4 to P6

clears establishes the guilt of accused No.1 and that the evidence of

PW.91 shows that accused No.1 was apprehended in Zaheerabad on

21.04.2012 wherein accused No.1 confessed to have committed the

murder of the deceased on 03.01.2011 with the revolver of accused N.2

and after that accused No.1 absconded along with accused No.2 to

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Mumbai, Delhi, Seoni and other places and he took the revolver of

accused No.2 for his personal safety and was staying at Seoni of Madhya

Pradesh State. The Investigating Officer also seized relevant material

objections viz., MOs.1, 25, 26, 27, 38, 39, 41, 42, 43, 44 and 45. On

consideration of the entire evidence, both oral and documentary, the trial

Court gave a specific finding that the appellant herein fled away from the

scene of offence without informing the incident either to the police or to

anybody. There is no error in the said finding of the trial Court.

31. The trial Court rightly held that though the bullet alleged to

have recovered from the dead body of the deceased was not sent to FSL

and not deposited before the trial Court, the evidence of PW.53 coupled

with Exs.P105 to P107 clearly shows that the lead pieces which were

recovered from the dead body of the deceased might be fragmented on

hitting on any hard object after discharging from any fire arm which can

chamber and fire 0.32 inch caliber revolver cartridges such as item Nos.1

and 3 i.e., MOs.41 and 43. Thus, the same is sufficient to connect

accused No.1 with the offence. Non-production of recovered bullet

before FSL or before the trial Court will not cause any prejudice to

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accused No.1. Even otherwise, production of the said bullet will only be

another link to connect accused No.1 with the offence.

32. Perusal of record, more particularly, the evidence of PW.9, an

eye-witness to the incident, it is very clear that when the incident had

occurred in MO.1 - Skoda Car, PW.9, the appellant and the deceased

were alone present. Except them, there were no other persons inside the

car. PW.9 deposed that he heard sounds. After hearing the same, the

appellant herein got down from the car and went away. When PW.9

made call to the appellant, he did not pick up the same. This portion of

evidence of PW.9 is crystal and clear to draw an inference that the

appellant committed the aforesaid offence. The medical and scientific

evidence through PWs.52, 53 and 54 as mentioned above also supports

the case of prosecution to the effect that the appellant committed the

aforesaid offence. That apart, it is not in dispute that MO.41/0.32

revolver was seized from the possession of accused No.1.

33. It is settled law that for the purpose of conviction,

the statement of the witness is only a piece of evidence and even if the

witness does not support the case of the prosecution, the conviction can

be based on the other corroborative evidence. The evidence of sole

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related eye-witness can be basis for conviction, particularly when there is

no vagueness in his/her testimony with respect to the act committed by

the accused.

34. It is also settled principle that if a witness turned hostile, his

evidence to the extent useful can be relied upon. In Ravasaheb @

Ravasahebgouda v. State of Karnataka 3 relied upon by learned Public

Prosecutor, the Hon'ble Supreme Court held as under:

"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."

. (2023) 5 SCC 391

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35. In the present case also, the evidence of PW.9, who lodged

Ex.P3, has specifically deposed that while he was driving the car, the

deceased sat beside him, while the appellant herein sat in the back seat

and heard the sound. After hearing the sound, the appellant got down

from the car and fled away saying 'attack, attack'. When PW.9 made

call to the appellant, he did not pick up the same. The said evidence of

PW.9 is helpful to the case of prosecution to connect that it is the

appellant, who shot at the head of the deceased, because there were no

other persons inside the car. Though PW.9 turned hostile, the aforesaid

evidence is enough to cull out a circumstance to connect the appellant to

the aforesaid offence. PWs.14, 16, 19 to 24, 27, 29, 30, 33, 35 to 37, 39,

40, 45, 48, 49, 65, 68, 73 and 75 to 78 were also declared hostile.

However, evidence of a hostile witness would not be totally rejected if

spoken in favour of the prosecution or the accused but required to be

subjected to close scrutiny and that portion of the evidence which is

consistent with the case of the prosecution or defence can be relied upon.

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36. On the law laid down in dealing with the testimony of a

witness over an issue, the Apex Court in C. Muniappan v. State of

T.N. 4 held as under:

"81. It is settled legal proposition that:

"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

(Vide Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233, Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 and Khujji v. State of M.P., (1991) 3 SCC 627, SCC p. 635, para 6.).

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360: 1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba

. (2010) 9 SCC 567

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Shinde v. State of Maharashtra [(2002) 7 SCC 543:

2003 SCC (Cri) 112], Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516: (2008) 1 SCC (Cri) 109], Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450: (2006) 1 SCC (Cri) 661], Sarvesh Narain Shukla v. Daroga Singh [(2007) 13 SCC 360: (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462: (2009) 2 SCC (Cri) 1106].

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

84. In the instant case, some of the material witnesses i.e. B. Kamal (PW 86) and R. Maruthu (PW 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature.

85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the 12 evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to

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convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."

Vide Sohrab v. State of M.P., [(1972] 3 SCC 751 :

(1972) SCC (Cri) 819 : AIR 1972 SC 2020], State of U.P. v. M.K. Anthony, [(1985) 1 SCC 505 : 1985 SCC (Cri) 105], Bharwada Bhoginbhai Hirjibhai v.

Sate of Gujrat, [(1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753], State of Rajasthan v. Om Prakash, [(2007) 12 SCC 381 : (2008) 1 SCC (Cri) 411], Prithu v. State of H.P., [(2009) 11 SCC 585 :

(2009) 3 SCC (Cri) 1502], State of U.P. v. Santosh Kumar, [(2009) 9 SCC 626 : (2010) 1 SCC (Cri) 88] and State v. Saravanan, [(2008) 17 SCC 587 : (2010) 4 SCC (Cri) 580]."

In the case on hand, though the aforesaid witnesses turned hostile, still

there is other evidence which would clearly demonstrate the role of the

appellant in commission of the aforesaid offences.

37. In Kali Ram v. State of Himachal Pradesh 5 relied upon by

learned counsel for the appellant to the effect that the accused is

presumed to be innocent unless that presumption rebutted by the

. (1973) 2 SCC 808

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prosecution by production of evidence. In view of the above discussion

and the principle laid down in the aforesaid decisions, the prosecution

has rebutted the said presumption by producing cogent evidence.

Therefore, the said decision is not helpful to the appellant herein.

38. Learned senior counsel for the appellant contending that the

entire case rests on circumstantial evidence and the circumstances relied

upon by the prosecution are not forming complete chain. He placed

reliance on the decision in Ravi Sharma v. State (Government of NCT

of Delhi) 6 and Manish Dixit v. State of Rajasthan 7. As stated above,

apart from the evidence of PW.9, there is other circumstantial evidence

forming chain to connect the appellant herein for the aforesaid offences.

Therefore, the said decisions are also inapplicable to the facts of the

present case.

39. Considering the entire evidence, both oral and documentary,

the trial Court holding that defective investigation in each and every case

is not fatal to the case of prosecution unless it is shown that such defect

has caused great prejudice to the accused. It was further held that the

said defective investigation is not fatal to the prosecution case and that

the prosecution proved the guilt of accused No.1 for the offence

. (2022) 8 SCC 536

. (2001) 1 SCC 596

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punishable under Section - 302 of IPC beyond reasonable doubt. The

said finding of the trial Court is based on material on record and the

appellant herein failed to make any ground to interfere with the

impugned judgment. Thus, the finding of the trial Court in respect of

recording conviction and imposition of life imprisonment on the

appellant for the offence under Section - 302 of IPC can be upheld.

40. As far as the offence under Section - 27 (2) of the Arms Act is

concerned, it is clear that MO.41 was seized from accused No.1 which

shows that he was in possession of the same without any valid license.

Thus, an offence punishable under Section 27 (2) of the Arms Act

attracts. Government sanction is required to prosecute accused No.1 for

the said offence. The evidence of PW.92 clearly shows that he

addressed a letter to the Additional DGP, CID, Hyderabad, on

10.07.2012 with a request to address a letter to the Commissioner of

Police, Hyderabad City, to accord permission to prosecute accused No.1

under Sections - 25 (1) (a) and 27 of the Indian Arms Act. Pursuant to

the said letter, the Additional DGP, CID, Hyderabad, addressed a letter

to the Commissioner of Police, Hyderabad City on 13.07.2012 who in

turn sanctioned to prosecute accused No.1 for the offence under Sections

25 and 27 of the Arms Act vide Ex.P150. Thus, accused No.1 was also

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prosecuted under the Arms Act where seizure of MO.41/0.32 revolver

from the possession of accused No.1 was proved beyond reasonable

doubt and accordingly he was found guilty for the offence punishable

under Section - 27 (2) of the Arms Act. The said finding of the trial

Court is based on sound reasoning and the appellant failed to make out

any ground to interfere with the said finding. Therefore, it can safely be

upheld the finding given by the trial Court with regard to recording

conviction and imposition of punishment for the offence under Section -

27 (2) of the Arms Act.

41. Learned Public Prosecutor would contend that there are

several criminal cases pending against the appellant herein - accused

No.1 and the same has to be considered. In support of the same, he has

filed letter dated 12.03.2024 addressed by the Deputy Superintendent of

Police, CID, GOW, Hyderabad. Perusal of the same would show that 24

criminal cases were registered against the appellant herein and out of the

said cases, two (02) cases viz., C.C. Nos.249 and 883 of 2014 on the file

of VI ACMM Court, Hyderabad were ended in conviction for the

offences punishable under Sections - 30 and 25 (1B) (a) of the Arms Act;

thirteen (13) cases were ended in acquittal; eight (08) cases are pending

and one (01) case was closed by filing closure report. However, the

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criminal history of the convict cannot be a ground for awarding

punishment. Therefore, the said contention of learned Public Prosecutor

is untenable.

42. In view of the above discussion, the trial Court was justified

in recording conviction and imposition of aforesaid punishments against

the appellant - accused No.1 for the aforesaid offences vide impugned

judgment and that the appellant failed to make out any ground to

interfere with the same. Therefore, the present appeal fails and the same

is liable to be dismissed.

43. The present Criminal Appeal is accordingly dismissed

confirming the conviction and sentences of imprisonment imposed by

the trial Court vide impugned judgment dated 18.12.2018 in S.C. No.26

of 2012.

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

this appeal shall stand closed.

_________________ K. LAKSHMAN, J

__________________ P. SREE SUDHA, J 2nd May, 2024 Mgr