Telangana High Court
Marri Sudhakar Reddy And 3 Others vs The State Of Telangana on 5 November, 2024
1
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No. 874 OF 2015
Between:
Marri Sudhakar Reddy and others ... Appellants
And
The State of Telangana ... Respondent
DATE OF JUDGMENT PRONOUNCED: 05.11.2024
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
And
THE HON'LE SRI JUSTICE ANIL KUMAR JUKANTI
1 Whether Reporters of Local newspapers
may be allowed to see the Judgments? Yes/No
2 Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? Yes/No
__________________
K.SURENDER, J
_________________________
ANIL KUMAR JUKANTI, J
2
* THE HON'BLE SRI JUSTICE K.SURENDER
And
THE HON'LE SRI JUSTICE ANIL KUMAR JUKANTI
+ CRL.A. No. 874 OF 2015
% Dated 05.11.2024
# Marri Sudhakar Reddy and others ... Appellants
And
$ The State of Telangana ... Respondent
! Counsel for the Appellants: Sri P.Prabhakar Reddy for A1
Sri H.Sudhakar Rao for A3
Sri O.Kailashnath Reddy for A4
^ Counsel for the Respondents: Sri Arun Kumar Dodla,
Additional Public Prosecutor
>HEAD NOTE:
1
(2021) 20 Supreme Court Cases 38
2
(2017) 14 Supreme Court cases 359
3
(2002) 7 Supreme Court Cases 295
4
(1984) 4 SCC 116
3
HON'BLE SRI JUSTICE K.SURENDER
And
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL No.874 OF 2015
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The present appeal is filed by appellants/A1 to A4 questioning
their conviction under Sections 302, 379, 201 r/w 34 of IPC vide
judgment in S.C.No.126 of 2010 dated 20.08.2015 passed by the
XIII Additional District and Sessions Judge, Ranga Reddy District at
L.B.Nagar.
2. The case of the prosecution is that on 25.08.2007 around 1.00
p.m, A1 went near the house of the deceased and took both the
deceased Susheela Devi (D1) and Manju Rani (D2) in a Tata Sumo
vehicle. On the said date, P.W.9 was present when D1 and D2 were
waiting for a person. The Tata sumo vehicle came there in which A1
was sitting in the vehicle on the left side. However, he could not
identify the driver. Both the deceased sat in the vehicle and they
left. Two days thereafter, P.W.9 came to know that both the
deceased were killed. P.W.8 is the son of D1 and brother of D2.
According to him, on 25.08.2007, he called his mother, who
informed that she along with Manju Rani were going to Kandukur
in a Tata Sumo and one Sudhakar was also present along with
them. Thereafter, when he tried to make contact with them, there
was no response. Accordingly, P.W.8 went to the police station and
lodged complaint Ex.P6 at 11.00 a.m. The said complaint Ex.P6 was
registered as 'two women missing' and investigation was taken up
by Saroornagar police.
3. Meanwhile, P.W.3, who is the Sarpanch of Narallapally Village,
Chitapally Mandal, lodged complaint on 26.08.2007 stating that
two dead bodies were found in the outskirts of the village.
Accordingly, P.W.3 lodged Ex.P1 report with the police. P.W.18,
Circle Inspector of Chinthapally Police Station registered the case in
Crime No.120 of 2007 under Section 302 IPC. He went to the village
and recorded the statements of P.Ws.3 to 5 and 7. Scene of offence
panchanama was conducted. There, he found electric conduction
wire of five meters length which was seized in the presence of
mediators. Inquest proceedings were also concluded and dead
bodies were sent for postmortem examination. On the basis of
information, Saroornagar police found that dead bodies were that of
mother and sister of P.W.8. P.W.8 then went to the hospital and
identified the dead bodies on 27.08.2007. The said case registered
by the Chinthapally Police was transferred to Saroornagar Police
Station. P.Ws.19 to 21 are Investigating Officers of Saroornagar
Police Station. According to P.W.19, while investigation was in
progress on 06.09.2007, P.Ws.16 and 17, who are the constables of
Saroornagar Police Station apprehended the appellants/A1 to A4
while they were going in Tata Sumo on 06.09.2007 at 2.30 a.m.
They were arrested and brought to the police station. On
interrogation by P.W.9/Sub-Inspector, A1 allegedly confessed that
on account of land disputes, since his father sold one acre of land
to both the deceased at a lower price and since there was hike in
land prices, A1 with the help of A2 to A4, murdered the deceased.
Pursuant to the confession, gold ornaments of both the deceased
which were marked as MOs.1 to 10 were seized from A1 to A4.
Further, according to P.W.19, there was a written agreement on a
bond paper which was purchased by A2 wherein A1 promised to
give Rs.2.00 lakhs to A3 and A4 and A2 would stand as a mediator
to the said agreement. On the basis of confession and recoveries
made, Section of law of 'women missing' registered by Saroornagar
Police was altered to Sections 302, 379, 201 r/w 34 IPC. The
prosecution also examined P.W.15, who stated that on 26.08.2007,
in the evening, A2 brought gold chain and took Rs.4,900/-. The
said transaction was recorded in the daily account book and the
relevant entry was marked as Exs.P21and the receipt Ex.P22 was
produced by P.W.15 on the date of his examination in the Court on
10.09.2013.
4. The police, having seized the Tata sumo vehicle/MO13 along
with ornaments at the instance of the appellants and also other
evidence collected, charge sheet was filed.
5. The case is one of circumstantial evidence. Learned Sessions
Judge, on the basis of the arrest, seizures and mainly basing on the
evidence of P.W.9, who found A1 taking both the deceased in a Tata
Sumo, recorded conviction.
6. Learned counsel appearing on behalf of the appellants would
submit that the case is one of circumstantial evidence. Even
according to the admission of P.W.19, there was no progress of
investigation from 29.8.2007 to 06.09.2007. There is no basis for
arresting the appellants. The only evidence that was relied on by the
learned Sessions Judge are the recoveries that were effected at the
instance of the appellants. Further, P.W.9 identified A1 for the first
time in the Court and there was no Test Identification Parade that
was held during investigation. When P.W.9 and A1 are strangers, it
is highly improbable that P.W.9 would identify A1 as the person
who had taken the deceased in the Tata Sumo for the first time in
Court.
7. Learned counsel further argued that identification of the
property was not done in accordance with Rule 35 of the Criminal
Rules of Practice. In fact, the seized property should have been
taken to the Magistrate, mixed with other properties/jewellery and
then the witness had to identify the said property. Learned counsel
relied on the judgment in the case of Jayan v. State of Kerala 1. In
the said judgment, the Hon'ble Supreme Court held that though
test identification parade is a weak piece of evidence, however, it
can be treated as corroborating evidence. The Hon'ble Supreme
Court further found that the evidence of identification cannot be
believed if there is large time gap from the date of incident and the
date of recording the evidence. Learned counsel also relied on the
(2021) 20 Supreme Court Cases 38
judgment in the case of Anjan Kumar Sarma and others v. State
of Assam 2 , wherein the Hon'ble Supreme Court held that only
circumstance of last seen together in the absence of any other
satisfactory explanation and circumstantial evidence, conviction
cannot be sustained.
8. In Dana Yadav alias Dahu and others v. State of Bihar 3, the
Hon'ble Supreme Court while dealing with the facts of case therein
held that though there was no test identification parade, since the
name of the accused was mentioned in the FIR, not holding test
identification parade is of no consequence. However, if a witness
identifies the accused for the first time in the Court, the probative
value of such uncorroborated evidence becomes unreliable and
unsafe to rely on.
9. Learned counsel also relied on the three Judge Bench of
Hon'ble Supreme Court wherein the Court found that if the
procedure prescribed was not followed in identifying the ornaments,
the said identification becomes doubtful.
(2017) 14 Supreme Court cases 359
(2002) 7 Supreme Court Cases 295
10. On the other hand, learned Additional Public Prosecutor would
submit that P.W.8 is the son of D1 and brother of D2. Identification
of the jewellery of his mother and sister cannot be disbelieved only
on the ground that Rule 35 of Criminal Rules of Practice was not
followed. P.W.9 is an independent witness, who has seen the D1
and D2 going along with A1 in the car. A1 to A4 were arrested
while going in the Tata Sumo in which D1 and D2 were taken
earlier and thereafter, they were found dead. The evidence of last
seeing the deceased with A1 is spoken to by P.W.9 and immediately
on the next day, they were found dead. In the said circumstances,
the finding of the learned Sessions Judge regarding involvement of
the appellants cannot be disbelieved.
11. Firstly, dealing with the evidence of last seen, P.W.9 stated
that on 25.08.2007 around 1.00 p.m, he saw both the deceased
waiting for a vehicle. In the meantime, A1, who was in the Tata
sumo vehicle/MO13 had arrived and both D1 and D2 left in the
said vehicle.
12. The name of P.W.9 was not mentioned in the FIR. Though, he
claims to be acquaintance of both the deceased, he never informed
P.W.8, who is the son of D1 that he has seen D1 and D2 going in a
Tata sumo vehicle. P.W.8 son of D1 lodged complaint on
26.08.2007 after nearly 22 hours of the alleged witnessing by
P.W.9. Further, according to P.W.9, he stated in his cross-
examination that two days after coming to know of the death of the
deceased, he found A1 in the police station and he identified A1 as
the person who accompanied the deceased. Admittedly, according
to P.W.19, there was no progress in investigation till the arrest of
accused on 06.09.2007. P.W.9 stated that two days after he saw the
deceased going in the Tata Sumo, he came to know about their
death. Two days after coming to know about the deaths, he found
A1 in the police station which would be on 29th or 30th of August,
2007.
13. As already stated P.W.9 had specifically stated in his cross-
examination that he had identified A1 in the police station on
29/30-08-2007. However, A1 to A4 were arrested on 06.09.2007 at
2.30 a.m according to the arresting constables P.Ws.16 & 17.
Nowhere in the evidence of Investigating officers/P.Ws.19, 20 or 21
it is mentioned as to how the accused were identified and details of
MO13/Tata Sumo were known to them. When P.W.19 stated that
there was no progress in investigation from 29.08.2007 to
06.09.2007, it remains a mystery as to how the details of MO13
were known.
14. Admittedly, no test identification parade was conducted for
P.W.9 to identify A1. Admittedly, A1 and P.W.9 are strangers. As
already discussed, P.W.9 stated that A1 was found in the police
station four days after the incident on 29.08.2007. In the facts of
the present case, it appears that P.W.9 was planted as a witness
subsequently to come up with the evidence of 'last seen' and that it
would be a reliable circumstance in the prosecution case.
15. The police have not collected the details of the phone numbers
of the appellants and also that of the deceased to ascertain their
location to know whether the deceased and the appellants have
travelled till the village in Medak District where the dead bodies
were found. No reason is given as to why the location details of the
appellants were not taken. The investigating officers ought to have
collected details of the phone numbers and their location during the
time from 1.00 p.m on 25.08.2007 till their bodies were found on
the next day around 6.00 p.m on 26.08.2007. The said details
would have lent credibility to the prosecution version.
16. The other circumstances relied on apart from the last seen
theory are the recoveries that were made from the appellants.
P.W.19/Investigating Officer took A2 to A4 along with mediators to
Nedunuru village of Kandukur Mandal to a tamarind tree where the
appellants have shown the gold ornaments hidden and they were
recovered from the hallow part of the tree. All the said gold
ornaments were seized which are four golden bangles, four gold
finger rings, one gold chain with Balaji locket. Thereafter, A2 to A4
have taken the police to Mahadev Jewellers, Kandukur village,
wherein one gold chain was sold to P.W.15. Ex.P22 is the receipt
which was produced by P.W.15 on the date of his examination. On
the letter head, it is written as follows:
"Om Prakash S/o.L.R.Chowdhary, age 23 years, Occ: Mahadev Jewellers,
R/o.H.No.5-106, Kandukur-99488 29606.
On 26/8/07 (Sunday)
Rs.4900/-
Page 297, weight gr.7.84 by Kamal Reddy."
17. No evidentiary value can be attributed to Ex.P22. Paying an
amount of Rs.4,900/- for a gold chain which weights around 7.4
grams appears to be highly improbable. Page number 297 is
mentioned in the receipt but it is not convincing. The help of P.W.15
was subsequently taken by the police to give evidence against A2.
18. The recovery of the gold ornaments from hallow of tamarind
tree also is doubtful. There is no reason why all the appellants have
taken the ornaments and kept the ornaments in the hallow of a tree
except for a gold chain, which was taken to P.W.15. As rightly
pointed out by the learned counsel for the appellants, the seized
ornaments ought to have been produced before the Magistrate for
the purpose of identification in accordance with Rule 35 of Criminal
Rules of Practice. The said seizure of ornaments from the hallow of
tamarind tree is doubtful when the said tree is in the open
accessible to everyone and at a considerable distance of 100 kms
from Hyderabad. A1 and A2 are residents of Kothagudem and A3
and A4 are residents of Hyderabad.
19. The motive as projected by the prosecution case was narrated
by P.W.19. According to him, the father of A1 sold one acre of land
to the deceased at a lower price and since there was hike in land
prices A1 took the assistance of A2 to A4 and murdered both the
deceased. Firstly, the Investigating Officer has not collected any sale
deed or any kind of sale transaction in between the father of A1 and
both the deceased. The details of the land are not given and it is not
stated as to how the death of the deceased would in any manner
help A1 in getting back the property which was sold by his father to
the deceased.
20. In view of the foregoing discussion, the prosecution has failed
to prove any of the circumstances beyond reasonable doubt.
21. The five golden principles constituting panchsheel to prove a
case based on circumstantial evidence were summed up in Sharad
Birdhichand Sarda v. State of Maharashtra 4 , which reads as
follows:
"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]
(1984) 4 SCC 116
"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
(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."
22. Every circumstance of (i) last seen theory; (ii) Arrest; (iii)
recovery; (iv) motive are all suspicious and doubtful as discussed
in the preceding paras. The prosecution failed to prove beyond
reasonable doubt. For the said reason, the conviction of the
appellants is set aside.
23. Accordingly, Criminal Appeal is allowed. Since the
appellants are on bail, their bail bonds shall stand discharged.
_________________
K.SURENDER, J
____________________________________
ANIL KUMAR JUKANTI, J
Date : 05.11.2024
kvs
