Shaik Moin, Nizamabad Dist. vs Sho, Bichkunda P.S., Nizamabad Dist.
2024 Latest Caselaw 4303 Tel

Telangana High Court

Shaik Moin, Nizamabad Dist. vs Sho, Bichkunda P.S., Nizamabad Dist. on 5 November, 2024

                                1




      THE HONOURABLE SRI JUSTICE K.SURENDER
                      AND
     THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR


             CRIMINAL APPEAL No.32 OF 2016
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. This appeal is filed by the appellant, questioning the

conviction for the offence under Section 302 of IPC and

sentencing him to undergo life imprisonment.

2. Heard learned counsel for the appellant and the learned

Additional Public Prosecutor appearing for the respondent-

State and perused the record.

3. Briefly, case of the prosecution is that on 26.02.2013,

at around 09:30 P.M., the deceased, appellant and some of

the witnesses PWs.7, 8, 9 and 10 played cards. On the next

day, at around 04:00 P.M., the deceased was found dead near

Pulkal Village Tank.

4. PW1, who is the father of the deceased, stated that on

the information given by others, he found his son dead, he

went to scene of offence and found injuries on the face of

deceased. Ex.P1/Complaint was lodged. PW2 who is the

brother of deceased stated that he accompanied his father

PW1. PW3 who is the friend of deceased stated that he saw

the dead body of deceased and it appeared that the deceased

was beaten with a stone. PW4 who is the relative of deceased

stated that deceased went out and did not return and later

they found his dead body. PW5 who is a witness stated that

he went to attend the marriage and the deceased had also

attended the marriage. However, he did not return after

attending marriage. PW6 who is another relative also stated

about the deceased attending marriage.

5. The crucial witnesses relied upon by the prosecution

are PWs.7 to 10. PW7 is the brother-in-law of deceased. He

stated that they played cards in their village. He lost around

Rs.2,000/-. The said cards were played along with the

appellant and also deceased. After playing cards, they went to

their respective houses and on the next day, he came to know

that the deceased was dead. When the villagers gathered near

dead body, the appellant was present, however, he did not

attend funeral of the deceased on the next day. He suspected

that it was the appellant who killed the deceased. PW8 had

also stated that several persons including PW7, deceased and

appellant played cards. Thereafter deceased and appellant

were seen going together at around 01:30 A.M. On the next

day, he found the deceased dead and also injuries were found

on his face. PWs.9 and 10 also stated that all of them played

cards and the deceased won the game. Thereafter, on the

next day, he was found dead.

6. On the basis of circumstantial evidence, the Police

found that it was the appellant who had committed murder of

deceased and the appellant was arrested on 13.03.2013 i.e.,

14 days after the date of incident. Pursuant to his arrest by

PW16, in the presence of PW14 and another independent

witness, confession of appellant was recorded. At his

instance, Rs.13,000/- (MO4) and one cell phone (MO5) were

also recovered. On the basis of said recoveries and also last

seen theory, charge sheet was filed against the appellant for

the offences under Sections 302 and 379 of IPC.

7. The learned Magistrate committed the case to the

Sessions Judge. During the course of trial, on behalf of the

prosecution, PWs.1 to 16, Exs.P1 to P7 and Material Objects

i.e., MOs.1 to 5 were marked.

8. The Learned Sessions Judge relied on the following

circumstances to infer and come to the conclusion that

accused has committed the murder of deceased:

"20. The important circumstances that weigh in favour of the prosecution are as follows:

1. First - According to the investigation though all the persons who played cards with the accused, the accused did not attend that funeral of deceased and his absence was conspicuous;

2. Secondly - PW8 who played the cards along with the accused and also deceased deposed that after playing the cards he went to the house and he went to the tank for attending nature call and he saw deceased and accused going together and it was about 01.30 am and on the next day he came to know that the deceased died of the injuries;

3. Thirdly - With respect of the seizure of MO4 cash of Rs.13,000/-, MO5 cell phone, according to the Additional Public Prosecutor, the police cannot offer to plant an amount of Rs.13,000/- for the sake of proving the guilt of the accused; similarly he argued that the cell phone of the accused was found in possession of the accused at whose instance it was seized."

9. Learned counsel appearing on behalf of appellant would

submit that only the evidence of last seen together is a weak

piece of evidence to place reliance for convicting appellant.

Apart from the last seen theory, there are no other

corroborating circumstances which the Court can draw the

inference that it was the appellant alone, who had committed

the murder. He relied on the judgment of Hon'ble Supreme

Court in Raja Naykar v. State of Chhattisgarh 1, wherein,

it is held as follows:

"7. Undoubtedly, the prosecution case rests on circumstantial evidence. The law with regard to

conviction on the basis of circumstantial evidence has very well been crystalized in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra 2, wherein this 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 : 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) and Ramgopal v. State 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

(1984) 4 SCC 116 = 1984 INSC 121

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,

(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.

8. 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 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."

10. Learned counsel also relied on the judgment of Hon'ble

Supreme Court in Kanhaiya Lal v. State of Rajasthan 3

and the relevant paragraph is extracted hereunder:

"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

Learned counsel also relied on the judgment of

R.Sreenivasa v. State of Karnataka 4, in which, the Hon'ble

(2014) 4 SCC 715

Supreme Court referred to the case of Kanhaiya Lal (2

supra), while acquitting the accused on the basis of

circumstance of last seen together.

11. On the other hand, learned Public Prosecutor would

submit that the evidence of PW7, who has last seen the

deceased and appellant at 01:30 A.M., would suffice to infer

that it was appellant who had killed the deceased. According

to the prosecution case, the deceased won money in the

cards. Rs.13,000/- was seized at the instance of appellant

and also cell phone of the deceased/ MO5. There is no reason

as to why the cell phone of the deceased would be with the

appellant, unless it was the appellant, who had committed

the murder of the deceased.

12. The crucial evidence relied on by the prosecution are

the statements of PWs.7 to 10. PW7 stated that he found the

appellant at the scene of offence when the villagers gathered,

however, he had not attended the funeral, which is

suspicious. PW8 who is the crucial witness had stated that

he saw the deceased and appellant going together at around

01:30 A.M. However, in the cross examination, he narrated

that after one week from the date of incident, the Police

2023 LawSuit(SC) 891

examined him. Similar is the evidence of PWs.9 and 10, who

spoke about the deceased and appellant playing cards and

deceased winning amount.

13. The recovery of amount of Rs.13,000/- cannot in any

manner be a incriminating circumstance against the

appellant. None of the witnesses stated that they have lost

the amount of Rs.13,000/-. The witnesses i.e., PWs.8, 9 and

10 stated they lost Rs.2,000/- each. The prosecution has not

come up with any evidence to show that the amount found

with the appellant in his house does not belong to him and it

belongs to deceased and none of the witnesses say that

deceased has won an amount Rs.15,000/-, as projected by

the prosecution, on the date of playing cards i.e., on

27.02.2013.

14. The other circumstance is recovery of cell phone/MO5

of the deceased, at the instance of the appellant. MO.5 was

seized in the presence of PW.14, who is the witness to the

alleged seizure. The prosecution has not shown the cell phone

to the father (PW1), brother (PW2) or any of other witnesses to

state that the deceased was using the said cell phone. The

cell phone number of the deceased was not stated and there

is no evidence to show that the deceased had purchased the

cell phone or from whom he had taken the cell phone for

using it.

15. PWs.7 to 10, were not even examined, during the

course of inquest proceedings. Their version that they played

cards and deceased had won money was made, nearly after

one week of the death of the deceased. Apparently, the

witnesses suspected the appellant and on the basis of said

suspicion, a false case was made up against the appellant. If

at all there is any amount of truth, PWs.7 to 11 would have

come out with the said version, on the day when they saw the

dead body i.e., on 28.02.2013 itself. When the dead body was

discovered, according to PW7, appellant was also present but

nothing was stated by PWs.7 to 10 either to the father or

brother or any of the relatives of deceased regarding playing

cards and the deceased winning money in the session of

playing cards. Even in the complaint/Ex.P1, there is no

whisper about the deceased playing cards and winning

amount or about the witnesses i.e., PWs.7 to 10.

16. The evidence of last seen is a weak piece of evidence,

unless corroborated by other evidence which the Court can

place reliance on to come to a conclusion that the appellant

has caused injury and committed murder. As observed by the

Hon'ble Supreme Court, the prosecution must prove the case

beyond reasonable doubt and the principle case projected by

the prosecution "must be proved" and not merely "may be

proved". Any amount of suspicion cannot take place of legal

proof. The circumstance relied on by the prosecution, though

raises suspicion, suspicion is not enough to draw inference to

find appellant guilty. For the above discussed reasons, the

appellant succeeds and his conviction is liable to be set aside.

17. Accordingly, this Criminal Appeal is allowed and the

conviction and sentence of imprisonment imposed against the

appellant in S.C.No.210 of 2013 passed by the learned

I Additional Sessions Judge, Nizamabad, is hereby set aside.

Bail bonds shall stand cancelled.

_________________ K.SURENDER, J

___________________ J. ANIL KUMAR, J Date: 05.11.2024 mnv/plp