Telangana High Court
Sabavath Tirupataiah vs The State Of Telangana on 5 November, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.237 OF 2016
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. The appellant/accused was convicted for the offence
under Section 302 of IPC and sentenced to life imprisonment.
Questioning the said conviction, the present appeal is
preferred.
2. Briefly, the case of the prosecution is that the deceased
namely Anke Jayamma, who is the mother of PW1, was a daily
wage labourer. According to PW1, on 15.02.2013, deceased left
from the house to pay house tax at Housing Office,
Wanaparthy and did not return and they searched in
surrounding places and went to the Police Station and gave
complaint on 18.02.2013. Thereafter, on 23.02.2013, in the
evening at around 05:00 PM, the Police called PW1, since they
discovered dead body of a lady. PW1 and others went to the
dead body and identified the decomposed body of deceased. It
appeared that she was strangulated with a towel. Her
ornaments were missing. She also had cell phone number. On
the basis of said complaint filed, during the course of
investigation, the Police arrested the accused on 23.05.2013.
The accused was identified on the basis of evidence of PWs.4
and 5, who were examined on 25.02.2013.
3. After the arrest of accused, he was interrogated and
during the course of interrogation, he admitted the guilt of
committing murder of deceased and also confessed that he
had stolen gold and silver ornaments. At the instance of
accused, seizure panchanama was drafted, which is marked
as Ex.P12 and MOs.1 to 5, which are gold and silver
ornaments, were seized. After completion of investigation,
charge sheet was filed against the accused for the offences
under Sections 302 and 379 of IPC. Since the offence is
exclusively triable by the Court of Sessions, the learned
Magistrate has committed the same to the Sessions Court
and numbered as S.C.No.630 of 2013.
4. Charges were framed against the accused for the
offences under Sections 302 and 379 of IPC.
5. During the course of trial, the learned Sessions Judge
examined PWs.1 to 11, marked Exs.P1 to 13 and MOs.1 to 6
were also brought on record.
6. The evidence of PWs.4 and 5 is crucial. According to
PW4, she stated that two years prior to her deposition in the
Court, when they were searching for coolie work, accused went
there on motor bike and took away the deceased with him
stating that she was in need of a worker. On the same day, as
PW4 could not get any work, she returned home. PW4
informed the same to the son of deceased, son-in-law and
daughter, regarding the deceased being taken away by the
accused for coolie work. Thereafter, PW4 came to know about
the dead body being found. However, in chief examination
itself, PW4 stated that she did not have prior acquaintance
with the accused and for the first time, she had seen the
accused when he has taken away the deceased with him.
7. PW5 also stated that he used to see the deceased at
Junior College Centre, during her visit, for doing coolie work.
He saw the accused taking away the deceased on his scooter
and 3 to 4 days thereafter, he came to know that deceased
died and her body was found on the Hillock situated at
Jagathpally Village.
8. Learned Sessions Judge mainly placed reliance on the
evidence of PWs.4 and 5, who have last seen the deceased with
the accused and also the recovery of gold and silver ornaments
i.e., MOs.1 to 5. According to prosecution, the said ornaments
were identified by PW1 in Test Identification of Property
Proceedings conducted by PW9, who was Tahsildar. Tahsildar
issued Ex.P9 certificate, certifying that PW1 has identified
MOs.1 to 4, which were the ornaments of his mother, in the
said proceedings conducted.
9. Learned counsel appearing on behalf of the accused
would submit that firstly, the names of PWs.4 and 5 were not
mentioned in the complaint/Ex.P1. If at all, PW4 had informed
PW1 and others about her seeing accused taking the deceased
on the scooter, her name would have been mentioned in the
complaint. The deceased was found missing from 15.02.2013.
However, complaint was filed on 23.02.2013. Even the name
of PW5 is also not mentioned in the complaint. In the said
circumstances, the last seen evidence of PWs.4 and 5, without
there being any corroborating evidence casts any amount of
doubt regarding the prosecution version being correct.
10. Learned counsel relied on the judgment of Hon'ble
Supreme Court in Shankar v. State of Maharashtra 1,
wherein, the Hon'ble Supreme Court, while dealing with the
evidence of last seen version of witnesses found on the facts of
the case, such evidence could not be relied upon and
accordingly, extended benefit of doubt in favour of accused.
2023 LawSuit(SC) 236
11. Similarly, in the case of R. Sreenivasa v. State of
Karnataka 2, the Hon'ble Supreme Court, while dealing with a
case where the trial Court had acquitted the accused,
however, the High Court reversed the judgment of acquittal
and convicted the accused mainly on the last seen theory. The
Hon'ble Supreme Court found that the trial Court was correct,
since evidence of last seen could not be believed as there was
no corroboration and the evidence of last seen was not
probable.
12. Learned counsel further relied on Jabir and others v.
State of Uttarakhand 3, wherein, the Hon'ble Supreme Court,
under similar circumstances, while dealing with the testimony
of last seen witnesses, found that such evidence cannot solely
be based on, to convict the accused.
13. Learned Public Prosecutor would submit that once
PWs.4 and 5 have stated that they have seen the accused
taking away the deceased on his scooter and thereafter, the
deceased was found missing, the only conclusion that could be
drawn was that the accused had committed murder of
deceased for gold and silver ornaments, which were seized at
the instance of accused and they were found to be that of
2023 LawSuit(SC) 891
2023 SCC OnLine SC 32
deceased. The identification parade of ornaments was done in
the presence of Tahsildar and the same cannot be disputed.
14. PW4 was examined in the Court on 18.12.2015. Her
evidence is that she had seen the accused taking the deceased
on 15.02.2013. She stated in her chief examination that she
does not have prior acquaintance with the accused and for the
first time, she had seen him, on the day, when the accused
has taken away the deceased with him. Thereafter, PW4
identified the witnesses in the Court, after a gap of nearly two
years and ten months. If at all, accused was stranger, it is
highly improbable that PW4 would have identified the accused
as the person who has taken the deceased, on the said day.
Admittedly, the name of PW4 was not mentioned in
Ex.P1/Complaint, though PW4 stated that she informed PW1
regarding the accused taking away the deceased on
15.02.2013. PW4 was planted in the present case only to
speak against the accused. Her testimony regarding seeing the
accused taking the deceased on his scooter, cannot be
believed.
15. PW5 is another witness who had stated that he has seen
the accused taking away the deceased on the scooter.
However, he did not speak about the date, on which he had
seen. According to him, 3 or 4 days after she went with the
accused, he learnt about death of the deceased. The case of
the prosecution is that she was missing on 15.02.2013 and
found on 23.02.2013 i.e., after 8 days of her missing. The
evidence of PW5 is that he learnt about the death of the
deceased 3 or 4 days, after she went with the accused. Such
evidence cannot be believed and apparently, PW5 is also a
witness planted by the prosecution.
16. The other circumstance, trial Court relied on is the
recovery of MOs.1 to 4. No reason is given as to why the Test
Identification of the ornaments was not conducted before the
Jurisdictional Magistrate and services of the Tahsildar/PW9
were taken to identify the gold and silver ornaments. Firstly,
only witnesses who saw the deceased being taken away by
accused are PWs.4 and 5. Their names are not mentioned in
the complaint nor any descriptive particulars of accused or the
scooter on which she was taken away are given. If at all, they
are daily wage labourers, they would be taken everyday by
person whoever needs their service. In fact, in the complaint,
son of the deceased stated that at around 09:00 A.M., the
deceased went from house for paying Housing Tax at Tax
Office, Wanaparthy. Further, PWs.4 and 5 spoke about the
deceased waiting in search of coolie work at Wanaparthy
Centre.
17. The description of the gold and silver ornaments were
not given by PW1. However, even accepting gold and silver
articles were recovered at the instance of the accused, the
offence is one under Section 411 of IPC.
18. Absolutely, there is no evidence to remotely suggest that
it was the accused who had committed the murder of the
deceased and accordingly, conviction under Section 302 of IPC
is hereby set aside. However, the accused is convicted under
Section 411 of IPC and sentenced to undergo two years
imprisonment. Since the accused had already served out two
years of sentence, no further orders are required to be passed.
The appellant was enlarged on bail on 21.09.2021.
19. Criminal Appeal is partly allowed. Bail bonds shall stand
discharged.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 05.11.2024
mnv/plp
