Telangana High Court

Abdul Majid And Anr vs The State Of Telangana on 12 November, 2024

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

             CRIMINAL APPEAL No.861 OF 2016

JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

This appeal is filed aggrieved by the judgment dated

30.06.2016 passed in S.C.No.48 of 2011 on the file of

Additional Metropolitan Sessions Judge for Trial of

Communal Offence Cases-cum-VII Additional Metropolitan

Sessions Judge, Hyderabad, convicting the appellants/

accused Nos.1 and 2 of the offences punishable under

Sections 364, 302, 201 read with Section 34 of Indian Penal

Code, 1860 (for short 'IPC') and sentenced to them undergo

rigorous imprisonment for ten years each and to pay a fine of

Rs.500/- each of the offence under Section 364 of IPC, in

default of payment of fine, to undergo simple imprisonment

for one month. Appellants were further sentenced to undergo

imprisonment for life and also to pay a fine of Rs.500/- each

of the offence under Section 302 of IPC, in default of payment

of fine, to undergo simple imprisonment for one month and

further sentenced to undergo two years simple imprisonment

and also to pay a fine of Rs.200/- each of the offence under 2 KS, J & JAK, J

Section 201 of IPC, in default of payment of fine, to undergo

simple imprisonment for 15 days.

2. Heard Mr. P.Prabhakar Reddy, learned counsel for the

appellants/accused Nos.1 and 2 and Mr. Arun Kumar Dodla,

learned Additional Public Prosecutor for the respondent-

State.

3. The appellant/accused Nos.1 and 2 were tried for the

offence under Section 302 of IPC along with accused No.3

against whom the case was abated on 27.08.2015.

4. Briefly the case of the prosecution is that PW1, who is

the wife of the deceased, lodged a complaint on 01.04.2010 at

09:00 p.m., alleging that on 31.03.2010 at 1:00 p.m., one

person came to her husband and wanted to purchase a

Qualis Car bearing No.AP 11J 9191 and wanted to take the

Car on trial and later, both proceeded in the same Car, but

did not return. As the whereabouts of her husband were not

known, a complaint was lodged in the Police Station,

Malakpet. The said complaint was registered as Crime No.120

of 2010 under the head of "Man Missing". Ex.P1 is the

complaint given by PW1.

3 KS, J & JAK, J

5. On 01.04.2010 at about 06:30 a.m., PW6, who is the

resident of Rangapur Village, Karimnagar District, found one

burnt male dead body on the outskirts of Rangapur Village,

while he was going to his agriculture fields. On the same day,

at about 08:00 a.m., PW6 gave complaint in the Medipally

Police Station. Basing on the said complaint given by PW6, a

case in Crime No.23 of 2010 was registered under Sections

302 and 201 of IPC. Ex.P30 is the complaint given by PW6.

6. On 01.04.2010, Inquest Panchanama in respect of an

unidentified dead body was conducted in the presence of

PW7 by PW13. During the course of inquest, it was found

that the dead body was completely burnt. As 90% burns were

found and they did not find any ornaments or articles on the

body of the deceased, they could not identify the dead body.

7. On 01.04.2010, PW9-Doctor went to the spot and

conducted autopsy over the dead body and found 90% of

burnt injuries. Further, he could not find any external

injuries over the dead body and internally all the organs were

normal and there was no poisonous substance in the

stomach of the deceased. In view of the above, PW9 could not 4 KS, J & JAK, J

come to the conclusion with regard to the cause of the death

of the deceased.

8. On 04.04.2010, the Police, Malakpet Police Station,

gave information with regard to finding of unidentified dead

body on the outskirts of Rangapur Village, Karimnagar

District. Then PW2 and the son of the deceased went to

Medipally Police Station and from there, they went to the

Government Area Hospital, Jagityal. But, they could not

identify the dead body, as dead body was completely burnt.

9. According to the Investigation Officer, on 07.04.2010,

while Police were conducting vehicle checking, they found

Qualis Car bearing No.AP 11J 9191 and when they tried to

stop the vehicle, the persons sped away in the vehicle. The

Police chased them and stopped the Car and on confession, it

was found that the deceased was killed by them. Thereafter,

Police collected evidence and having concluded the

investigation, charge sheet was filed.

10. Learned counsel appearing for the appellants would

submit that on 01.04.2010, an unidentified dead body was

found on the outskirts of Rangapur Village, Karimnagar

District and 90% of burn injuries were found on the dead 5 KS, J & JAK, J

body. The dead body was in an unidentifiable condition, as

the body was completely burnt including clothes. As per

PWs.1 and 2, the dead body was completely burnt and it was

in an unidentifiable condition. Even as per the Inquest and

Post Mortem Examination reports, the dead body was in an

unidentifiable condition. PW9-Doctor, who conducted Post

Mortem examination, stated that he did not find any injuries

on the body of the deceased and no poisonous substance was

found in the stomach. Therefore, PW9 could not come to the

conclusion with regard to the cause of the death of the

deceased. Firstly, there is a suspicion whether the dead body

is that of the husband of PW1 or not. Secondly, the cause of

death of the deceased was not known, whether it is

homicidal, suicidal or accidental, since no injuries were

found on the body of the deceased and no poisonous

substance was found in the stomach of the deceased. The

crucial link in the chain of circumstances is missing, since

identification of dead body is doubtful and the cause of death

is not established.

11. Learned counsel appearing for the appellants further

argued that PW1 has not specifically mentioned in her

complaint-Ex.P1 that appellants have come to her house and 6 KS, J & JAK, J

taken the Qualis Car for trial along with the deceased.

Neither the names of the appellants were mentioned nor

descriptive particulars were given in Ex.P1. Further, it was

not mentioned in Ex.P1 about the visit of the appellants to

her house for purchase of the Car. It was specifically

mentioned in Ex.P1, that one person came to her house to

purchase Qualis Car and went for trial along with her

husband and they did not comeback. PW1 admitted in the

evidence that she did not mention that the appellants came

to their house on 22.03.2010 and willing to purchase the

said vehicle for Rs.2,70,000/-.

12. It is further argued that as per the evidence of PW1,

MO.1 Toyota Qualis Car belongs to one Mr. R.Lingaswamy

and the same was taken by her husband on interim custody.

She further admitted that no record was produced before the

Police or Court with regard to purchase of the said Qualis

Car. Therefore, there is no evidence that the vehicle was in

the house of the deceased for sale. The complaint was given

on 01.04.2010 at 09:00 p.m., but the same was received by

the Magistrate on 03.04.2010 at 11:00 a.m. There is

abnormal delay in giving the complaint and reaching the

same to the Magistrate. As per the evidence of PWs.1 and 2, 7 KS, J & JAK, J

the appellants are strangers to them and they have not given

any descriptive particulars of the appellants. However, they

identified the appellants in the Court for the first time and no

value can be attached to the identification of the appellants

for the first time in the Court without Test Identification

Parade.

13. Learned counsel appearing for the appellants relied on

the following judgments of the Hon'ble Supreme Court:

1. Sardar Hussain & another Vs. State of

Uttar Pradesh 1, wherein it was held that the

doctor, who conducted Post Mortem

Examination on skeleton, could not give better

opinion with regard to the cause and time of

death.

2. Laxman Vs. State of Chattisgarh 2, wherein

it was held that since the doctors could not give

definite opinion regarding cause of death and

also mode of death, cause of death cannot be

proved, as to whether it was homicidal or

suicidal or accidental.

1988 (Supp) SCC 623

2017 SCC OnLine Chh 1029 8 KS, J & JAK, J

3. Khem Chand @ Khema Vs. State of

Haryana 3, wherein it was held that since the

doctor could not ascertain the cause of death in

Post Mortem Examination report and

identification of dead body was doubtful and no

DNA test was conducted, the appeal was

allowed, as it was a clear case of no evidence.

4. Bhupendranath Prasad Vs. State of Bihar 4,

wherein it was held that in a criminal case, the

cause of death has to be ascertained

conclusively and when there is doubt with

regard to the cause of death, conviction cannot

be sustained.

5. Bijoy Singh and another Vs. State of

Bihar 5, wherein the Hon'ble Supreme Court

dealt with the aspect of delay in lodging F.I.R.

6. Keshav Vs. State of Maharashtra 6, wherein

it was held that circumstances become relevant

2012 SCC OnLine P&H 21929

(1992) 3 SCC 547

(2002) 9 SCC 147

(2007) 13 SCC 284 9 KS, J & JAK, J

only when death takes place shortly after

accused and deceased were last seen together.

7. Motukuri Siva Vs. State of Andhra

Pradesh 7, wherein it was held that in the

absence of the proper identification of the dead

body, which constitutes a crucial link in the

chain of circumstances, the case of the

prosecution gets substantially weakened.

14. On the other hand, learned Public Prosecutor would

submit that there is no direct evidence to suggest that the

appellants were involved, however, the circumstances clearly

indicate that it was the appellants, who had committed the

murder. In fact, the appellants were caught, while they were

going in the vehicle which was subjected to theft by the

appellants. There is no reason why the appellants fled away,

when the Police were checking. The conduct of the

appellants also indicates that they had fear in their mind for

being caught for committing the murder.

(2018) SCC OnLine Hyd 391 10 KS, J & JAK, J

15. The case is one of circumstantial evidence. The Hon'ble

Supreme Court in Raja Naykar vs. State of Chhattisgarh 8,

while dealing with principles of circumstantial evidence, 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 3 in the judgment of this Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, 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) 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."

2024 LiveLaw (SC) 60 11 KS, J & JAK, J

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]

"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 12 KS, J & JAK, J

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."

16. The first and foremost aspect of the murder case would

be to identify the dead body. PW1 stated that the body was

90% burnt and she could not identify the dead body of her

husband. Even PW9-Doctor, who conducted post mortem

examination on the dead body, stated that there were no

identifiable marks on the dead body. Further, PW9 did not

find any external injuries and on internal examination of the

dead body, there was no evidence of poisoning.

17. In the background of dead body being found, if PW1

was convinced that it was the dead body of her husband, she

should have given identifiable marks on the basis of which

she identified, such as dental structure or anything else to do

with identification of a person. If at all identification was not

possible on seeing the dead body, the Police ought to have

undertaken the exercise of sending the sample for DNA test.

13 KS, J & JAK, J

Unless such DNA test was done and it was conclusively

found that dead body belonged to PW1's husband, the

question of trying the appellants for the offence of murder of

PW1's husband does not arise.

18. On the basis of assumption that the dead body which

was found on 01.04.2010 by PW6 was that of the husband of

PW1, who filed the complaint on the same day evening, such

acceptance by PW1 that the dead body was that of her

husband cannot be considered. The identification of body is

not established.

19. In case of murder, the prosecution has to prove beyond

all reasonable doubt regarding the accused committing the

murder.

20. As seen from the complaint-Ex.P1 of PW1 made on

01.04.2010, she did not state about the descriptive

particulars of the person who went along with her husband

on the trial of Car. The version that the vehicle bearing

No.AP 11J 9191 (MO.1) belongs to the husband of PW1 was

also not proved.

14 KS, J & JAK, J

21. During the course of trial, it was stated that MO.1

belongs to one Mr. Lingaswamy. The Police had not made

any attempts to examine the owner of the Car. Even

according to PW1, there was no documentation for the

purchase of the said vehicle by her husband. The

identification of the appellants was for the first time in the

Court on 01.05.2013. Admittedly, the appellants were

strangers to PW1. In Ex.P1, she stated that one person came

to their house and wanted trial of the Car. Admittedly, no

Test Identification Parade was conducted, after the arrest of

appellants on 07.04.2010. The identification of appellants by

PW1 for the first time before the Court, after three years and

one month, is highly improbable.

22. In order to convince the Court that there were constant

visits by the appellants/accused, PW1 stated in the Court as

follows:

"... I know A1 and A2. Previously, my husband- deceased was doing real estate business. For some time he was doing business in purchasing old vehicles and got repaired to them and to sell them. On 22.03.2010, A1 and A2 came to the house to purchase Qualis Vehicle bearing No.AP 11J 919, my husband-deceased offered to sell the said vehicle to them for Rs.2,70,000/-, on that day, they were shown the said car and they went away, again they came on 29.03.2010 at about 7:30 a.m., and 15 KS, J & JAK, J

they agreed to purchase the said vehicle and the said offer rate and they gave an advance amount of Rs.2,000/- to my husband and went away. Again on 31.03.2010 at about 7:30 a.m., morning, A1 alone came and he intend to purchase the said vehicle, and he requested Rs.50/- from my husband and went away."

23. The above statement in Court for the first time cannot

be accepted to believe the identification of appellants/

accused. Admittedly, in the complaint-Ex.P1, PW1 stated

that one person went along with her husband and did not say

that it was A1. The entire version extracted above cannot be

believed.

24. The other circumstances relied on by the prosecution

are that the appellants were going in the said vehicle after

seven days after the husband of PW1 had gone missing. The

said circumstance that the appellants were caught in the said

vehicle (MO.1) cannot be solely made basis to state that it

was the appellants/accused Nos.1 and 2 along with the