Telangana High Court
Mirza Zakki Baig, Nirmal Dt., vs The State Of Telangana, Rep Pp., on 21 November, 2024
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL Nos.1317 of 2016 and 1116 OF 2017
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. These appeals are filed aggrieved by the judgment dated
30.11.2016 in S.C.No.67 of 2015, passed by the IV Additional
District and Sessions Judge-cum-Judge, Family Court at
Adilabad, convicting the appellants/accused Nos.1 to 3 for
the offence under Section 302 of IPC and sentenced to
undergo imprisonment for life. Further, they were convicted
for the offence under Section 384 of IPC and sentenced to
undergo rigorous imprisonment for three years.
2. Heard learned counsel appearing on behalf of the
appellants and learned Additional Public Prosecutor
appearing on behalf of respondent-State.
3. PW1 lodged a written complaint on 30.08.2014, at
09.00 hours stating that he is a native of Gajulapet, Nirmal
and he along with his younger brother Mekala Mahesh are
residing at Pakpatla village, by attending agricultural labour
work. Their parents are staying at Gajulapet, Nirmal. His
father namely Mekala Narsimulu had been working as a
worker in toddy shop No.5 on a job of collection of toddy
bottles for the past four years. On 30.08.2014, at about 08.00
hours, his relative namely Parsa Bhumanna informed him on
phone that his father (deceased No.1) was killed by some
unknown persons and the dead body was found lying on the
platform of the shop in front of toddy shop No.5 and stated
that there is another dead body who was also murdered on
the other side platform of another shop.
4. Basing on the said complaint, the Police registered a
case and went to the scene of offence and conducted scene of
offence panchanama and inquest was also conducted on the
same date. The dead bodies were sent for Post Mortem
Examination (PME). Autopsy was conducted in the
Government Hospital by PWs.11 and 12. PW11 conducted
autopsy of deceased No.2 and PW12 conducted autopsy of
deceased No.1.
5. According to the Investigating Officer, on receiving
information on 01.09.2014 regarding accused No.2, he
arrested him. On the basis of accused No.2's confession that
he had committed the offence with the aid of accused Nos.1
and 3, accused Nos.1 and 3 were also arrested. Pursuant to
accused No.2's confession, accused No.2 handed over two
photographs of deceased No.2 and Rs.300/- brought from his
house. From there, they went to toddy shop, where the stick
allegedly used to hit the deceased was seized. Panchanama
was prepared for both the seizure of photographs and
Rs.300/-, which were produced by accused No.2 from his
house and also seizure of the stick. The confession of
accused No.1 was recorded and thereafter he produced blood
stained clothes from his house and handed over to the Police.
Again both of them were taken to the scene where another
stick was recovered near the scene.
6. Having concluded investigation, Police filed charge
sheet against the accused Nos.1 to 3 for offence under
Section 302, 382 r/w 34 of IPC. According to Police, all
accused Nos.1 to 3 were having criminal antecedents.
7. Learned Sessions Judge framed charges against
accused Nos.1 to 3. During the course of trial, witnesses
Pws.1 to 14 were examined and also Exs.P1 to P30 were
marked. MOs.1 to 18 which are wearing apparel, sticks, etc.,
which were seized from scene of offence and also at the
instance of accused Nos.1 to 3, were placed on record.
8. The case is one of circumstantial evidence. The only
witness who speaks about last seeing the three accused near
the shop is PW4. PW4 stated that deceased Nos.1 and 2 were
working in his shop as managers. On 29.08.2014 at 10.30
P.M., all three accused came to his shop purchased toddy
and they were consuming toddy sitting outside Aloochips
which was opposite to their toddy shop. On the next day,
when he went to the shop at 07.30 A.M., he saw the dead
body lying on the platform of shop nearby his toddy shop.
9. Except PW4, none of the witnesses have seen the
appellants near the scene of offence. According to the learned
Sessions Judge, the evidence of PW4 is of no use and
considering the testimonies of PWs.1 to 4, nothing came to
light, regarding the manner, in which both the deceased were
killed. However, on the basis of recoveries that were effected,
pursuant to the arrest of accused Nos.1 to 3, the learned
Sessions Judge found favour with the prosecution version
that the appellants who were having criminal antecedents
were the persons who had committed murder of deceased
Nos.1 and 2.
10. The main thrust of the arguments of both the counsel
for appellants is that the recoveries cannot be believed and
they were planted. Even assuming that such recoveries were
effected, they do not, in any manner, come to the aid of
prosecution, to infer that it was the appellants alone who had
committed the murder.
11. MO15 is cash and passport size photographs seized
from accused No.3, MO16 is white pant from accused No.2,
MO17 and MO18 were pants and shirt from accused No.1.
Two passport size photos of deceased No.2 were seized at the
instance of accused No.3 and marked as Ex.P11.
12. Learned counsel relied on the judgment of Hon'ble
Supreme Court in Pancho v. State of Haryana 1, wherein,
while dealing with the case of extra judicial confession and
circumstantial evidence, the Hon'ble Supreme Court held that
Court cannot look into confession of co-accused and give its
opinion. In fact, the prosecution has to prove its case beyond
reasonable doubt and factum of the confession and the
consequent recoveries only cannot be made basis to convict
the accused.
13. In Haricharan Kurmi v. State of Bihar 2, the Hon'ble
Constitutional Bench of Supreme Court held that a case
AIR 2012 SC 523
AIR 1964 SC 1184
cannot start with the confession of a co-accused person.
Once the Court is inclined to accept the confession of
co-accused, Court should seek corroboration and assurance
from the other evidence placed by prosecution apart from the
confession. The presumption of innocence is basis of criminal
jurisprudence. The burden is always on the prosecution to
prove its case against an accused.
14. In Basudev Soren v. State of Odisha 3, the Hon'ble
Division Bench of Odisha High Court, while dealing with case
of circumstantial evidence found that mere fact that accused
were last seen with the deceased cannot conclusively prove
them guilty.
15. In cases of circumstantial witnesses, the Hon'ble
Supreme Court in Sharad Birdhichand Sarda v. State
of Maharashtra 4 held as follows:
"The following conditions must be fulfilled before a case
against an accused can be said to be fully established on
circumstantial evidence:
(1) the circumstances from which the conclusion of guilt is
to be drawn must or should be and not merely 'may be'
fully established,
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to
2022 CRI.L.J. 2133
(1984) 4 SCC 116
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."
16. In Jafarudheen and others v. State of Kerala 5, the
Hon'ble Supreme Court, while dealing with the case of
recovery at the instance of accused found that when the
recovery evidence was concocted by the prosecution, it is not
reliable and such evidence has to be discarded.
17. The Hon'ble Supreme Court while discussing the
admissibility and relevance of Section 27 Evidence Act,
discussed various judgments which are relevant:
"II. It could thus be seen that this Court in Jeet Singh
case has held that what is relevant is not whether the
place was accessible to others or not, but whether it was
ordinarily visible to others. If the place at which the
article hidden is such where only the person hiding it
knows until he discloses that fact to any other person,
then it will be immaterial whether the concealed place is
accessible to others.
Insofar as the reliance placed by the appellant on the
judgment of this Court in Krishan Mohar Singh Dugal v.
(2022) 8 SCC 440
State of Goa is concerned, in the said case, the accused
was convicted for the offence punishable under Section
20(b)(ii) of the Narcotic Drugs and Psychotropic
Substances Act, 1985, solely on the basis of recovery at
the instance of the accused on the basis of memorandum
statement under Section 27 of the Evidence Act. In the
said case, the recovery was from a place under the
coconut tree, which was accessible to one and all. It was
not a case of concealment in a place, which was only
within the knowledge of the person concealing it. In any
event, in the said case, the conviction was solely on the
basis of the said recovery and as such, was found to be
untenable.
IV. The position of law in relation to Section 27 of the Act
was elaborately made clear by Sir John Beaumont in
Pulukuri Kottaya and others v. Emperor [AIR 1947 PC
67] wherein it was held: "Section 27, which is not
artistically worded, provides an exception to the
prohibition imposed by the preceding section, and
enables certain statements made by a person in police
custody to be proved. The condition necessary to bring
the section into operation is that discovery of a fact in
consequence of information received from a person
accused of any offence in the custody of a Police Officer
must be deposed to, and thereupon so much of the
information as relates distinctly to the fact thereby
discovered may be proved. The section seems to be based
on the view that if a fact is actually discovered in
consequence of information given, some guarantee is
afforded thereby that the information was true, and
accordingly can be safely allowed to be given in evidence;
but clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to
which such information is required to relate.
In Earabhadrappa alias Krishnappa v. State of
Karnataka [1983(2) SCR 552] it was held that for the
applicability of Section 27 of the Evidence Act two
conditions are pre- requisite, viz., (i) information must be
such as has caused discovery of the fact, and (ii) the
information must 'relate distinctly' to the fact discovered.
Under Section 27 only so much of the information as
distinctly relates to the fact really thereby discovered, is
admissible. While deciding the applicability of Section 27
of the Evidence Act, the Court has also to keep in mind
the nature of presumption under Illustration (a) to (s) of
Section 114 of the Evidence Act. The Court can,
therefore, presume the existence of a fact which it thinks
likely to have happened, regard being had to the common
course of natural events, human conduct and public and
private business, in their relations to the facts of the
particular case."
18. PW13 investigating officer stated as follows:
"On 01.09.2014 at 07:00 AM I apprehended accused
No.2/Bojja Ramesh and issued notice U/Sec. 41(A)(1)
Cr.P.C when he was in mood to confessed, I secured
presence two panchas ie., PW8 and PW10 and in their
presence I interrogated the accused No.2 who confessed
to have committed the murder of deceased No.1 and 2
along with accused No.1 and 3. During the confession of
accused No.2, on his confession I seized a blood stained
trousers of him from his possession at his instance from
his house under cover of confession and recovery
panchanama. Ex.P6 is the confession cum-seizure
panchanama of accused No.2. In pursuance of it I seized
the pant of accused No.2 from his instance, MO.No.16,
Pants of Accused No.2. In pursuance of his confession
accused No.2 lead me and my party and panchas to the
Eastern side lane of No.5 Toddy shop at Old bus stand
Nirmal where I seized crime weapon/stick said to have
been used by accused No.2 for killing the deceased and
also a bed sheet of deceased No.2 under seizure
panchanama, Ex.P7. MO.No.12 is the stick, MO.No.13 is
the bedsheet of deceased No.2. Then accused No.2 lead
us and panchas to another area, Koli Banda, Nirmal
where I apprehended accused No.1/Patharla Ramu at the
house of his sister at 9.00 AM on the same day. In the
presence of same panchas on interrogation accused No.1
voluntarily confessed to have committed the above
murder of deceased No.1 and 2 along with accused No.2
and 3. During the confession I seized blood stained shirt
and trousers of accused No.1 from his possession at his
instance from the house of his sister under cover of
confession cum seizure panchanama, Ex.P8. In
pursuance of it MO.No.17/Pants of accused No.1 and
MO.No.18/Shirt of accused No.1 were seized.
Subsequently accused No.1 who was in our custody lead
us and the same panchas to the Chowrasta at the corner
of the same No.5 Toddy shop near Old bus stand, Nirmal.
Where at his instance I seized another crime stick
undercover of a separate seizure panchanama which was
said to have been used by him for killing the deceased
No.1 and 2. MO.No.14 is the stick seized at the instance
of accused No.1. Later both the accused No.1 and 2 lead
the police as well as the panchas to Pangally, Nirmal
where I apprehended accused No.3/Mirza Zakki Baig at
his house on the same day at 11.00 AM. During
confession of accused No.3 in the presence of same
panchas he admitted to have committed the offence of
murder of deceased No.1 and 2 along with accused No.1
and 2. I recorded his confessional statement and seized
the stolen net cash of Rs.300/- and two passport size
photographs of deceased No.2 from his possession under
cover of panchanama. Ex.P10 is confession cum seizure
panchanama of accused No.3. MO.No.15 is cash of
Rs.300/-, Ex.P11 is two passport size photos of deceased
No.2."
19. All the recoveries were effected in the presence of PW8
and PW10 independent mediators and PW13 investigating
officer. PW8 was declared hostile to the prosecution case.
The Investigating Officer arrested accused No.2 on
01.09.2014 and on the basis of accused No.2's confession,
the involvement of accused Nos.1 and 3 was established
according to the investigating officer and both accused Nos.1
and 3 were arrested. At the instance of accused Nos.1 to 3,
their apparel was seized. From accused No.3, two passport
size pass photos of deceased No.2 and Rs.300/- was seized. It
was observed by the trial Court that accused Nos.1 to 3
having inflicted injuries on the deceased, accused No.3 would
have taken passport photos of deceased No.2 and kept in his
house.
20. The evidence is apparently fabricated by the
prosecution to involve the appellants. It is highly improbable
that the accused collected two passport size photos of
deceased No.2, having committed his murder, from deceased
No.2's pocket. The other recovery aspect is that of the
sticks/lathis that were found at the instance of accused
Nos.1 and 2. Three days after the incident, the alleged
seizure of sticks is shown. The seizure is from an open place
near the old bus stand. Such open recovery cannot be
believed, since both the places are accessible to people and
several people visit bus stand everyday.
21. Apart from the alleged seizures as discussed above,
there is no other evidence.
22. However, learned Public Prosecutor stated that clothes
were blood stained. Admittedly, FSL has found that clothes
were blood stained. However, blood group of the blood on the
clothes was not determined to connect the blood to both the
deceased. When there is no other evidence, apart from the
alleged seizure of blood, sticks which were not sent to FSL,
stained clothes which seizures were disputed by the
appellants and according to them, they were planted, the
seizures from the accused, cannot form basis to convict the
appellants.
23. For the aforesaid reasons, these Criminal Appeals are
allowed and the judgment dated 30.11.2016 in S.C.No.67 of
2015, passed by the IV Additional District and Sessions
Judge-cum-Judge, Family Court at Adilabad, is hereby set
aside. Since the appellants/accused Nos.1 and 2 are in jail,
they shall be released forthwith, if they are not required in
any other case. The bail bonds of appellant/accused No.3
shall stand cancelled.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 21.11.2024
mnv/plp
Note: Registry is directed to dispatch
the order forthwith.
