Telangana High Court

Maskuri Saioo, Medak Dt., vs The State Of Telangana, Rep Pp., on 4 September, 2024

Author: P. Sam Koshy

Bench: P.Sam Koshy, N.Tukaramji

            THE HON'BLE SRI JUSTICE P.SAM KOSHY
                                      AND
            THE HON'BLE SRI JUSTICE N.TUKARAMJI

                 CRIMINAL APPEAL No.1096 of 2016

JUDGMENT:

(per the Hon'ble Sri Justice P. SAM KOSHY)

Heard Mr. Srinivasa Srikanth (Legal Aid), learned counsel

for the appellant - accused and Mr. Syed Yasar Mamoon, learned

Additional Public Prosecutor for the respondent - State.

2. Aggrieved by the judgment of conviction dated 26.09.2016

in S.C.No.78 of 2015 passed by the VIII Addl. District and

Sessions Judge at Medak, the instant appeal has been filed by

the appellant under Section 374(2) of Cr.P.C.

3. Vide the impugned judgment, the Trial Court found the

appellant guilty for the offence punishable under Section 302,

379 and 201 of IPC and sentenced him to undergo imprisonment

for life with fine of Rs.1000/- for the offence under Section 302

with default stipulation of one year and sentenced him to

undergo rigorous imprisonment for three years for the offence

under Section 379 and rigorous imprisonment for three years

with fine of Rs.2000/- with default stipulation of further simple

imprisonment for six months for the offence under Section 201

of IPC.

4. The case of the prosecution, in brief, is that on 01.10.2014

at around 13:00 hours PW.1 (Jangam Gopal) filed a complaint at

Shankarampet Police Station informing that on 27.09.2014 his

brother-in-law came home and informed him that his wife i.e.

PW.1's sister Thaduri Swaroopa @ Lalitha is missing since

26.09.2014 and her mobile phone bearing No.8897755298 was

switched off. He further stated that on the date of filing the

complaint on 01.10.2014 at around 12:00 hours he was

informed by VRO Gottimukkula Village namely Vijay Kumar that

a dead body of a female was found in Rajula Cheruvu in the

Gottimukkula village. Upon receiving the said message from

VRO, PW.1 rushed and found the dead body to be that of his

sister Swaroopa. He recognized the body on the basis of marks

that were there on the body as the face was otherwise not

identifiable. In the course of investigation the prosecution seems

to have apprehended the first husband of the deceased Maskuri

Sailu and on the basis of confessional statement recorded, the

investigation proceeded and concluded. Thereafter, charge sheet

was filed and the matter in due course of time was put up for

trial before the VIII Addl. District and Sessions Judge at Medak,

where the case was registered as S.C.No.78 of 2015.

5. The prosecution in all examined as much as thirteen

witnesses and exhibited as many as nineteen documents. There

were no witnesses examined, neither were there any documents

marked in support of defence. Thereafter, the statement of the

appellant was recorded under Section 313 of Cr.P.C and the

Trial Court after hearing the learned counsel appearing on either

side finally vide the impugned judgment found the appellant

guilty of the offence under Section 302, 379 and 201 of IPC

which is already mentioned in the beginning of this judgment.

6. It is said that the murder was committed by the appellant

in order to take away the ornaments and jewelry on the body of

the deceased with which the appellant intended to get his

daughter married.

7. Learned counsel for the appellant contended that the entire

judgment of conviction is based on conjuncture and surmises

without any cogent substantial evidence collected by the

prosecution to implicate the appellant and the impugned

judgment is therefore not sustainable. Likewise, it was also the

contention that the entire case revolves around circumstantial

evidence with no chain of links whatsoever being available with

the prosecution, nor there being any evidence collected with

which the prosecution can claim that there is a chain of

evidences and the chain of evidences are so interlinked that it

leads to no other conclusion, but that of the appellant alone to

have committed the murder of the deceased.

8. Learned counsel for the appellant opened his arguments

highlighting the aspect of there being no cogent material

available on record with which the prosecution can claim to have

reasons to apprehend the appellant and thereafter to proceed

with the investigation. According to the learned counsel for the

appellant plain reading of the charge sheet as also the evidences

adduced during the course of trial would only relate to matters

subsequent to the apprehension of the appellant and there is no

material whatsoever as to how did the prosecution zero down

their investigation suspecting the appellant to have committed

the offence enabling them to apprehend / arrest the appellant.

9. It was also the contention of the learned counsel for the

appellant that neither the mobile phone of the deceased nor the

mobile phone of the appellant was either seized or investigated

upon to even remotely connect the appellant to have called upon

the deceased on the fateful day on which she sent missing.

Neither is there any information available with the prosecution to

show the presence of the appellant near the place of incident or

the place where the dead body of the deceased was found.

10. For all the aforesaid serious lapses and lacunas on the part

of the prosecution, learned counsel for the appellant prayed for

setting aside the impugned judgment of conviction and also

prayed for the appellant to be honorably acquitted of all the

charges leveled against him.

11. Per contra, the learned Additional Public Prosecutor

referring to the statement of PW.5 (J.Darshan), claimed him to

be the person who had last seen the appellant and the deceased

together and on the basis of which the suspicion arouse in the

mind of investigating agency following which he was

apprehended. It was also the contention of the learned

Additional Public Prosecutor that the guilt of the appellant

stands established from the ornaments recovered from the shop

at the instance of the appellant where he had sold the same and

these ornaments belonged to the deceased, which was further

identified by PW.3 T.Anjaiah (husband of the deceased) as also

by PW.2 J.Mallamma (father of the deceased).

12. All these according to the learned Additional Public

Prosecutor leads to a sufficient indication of the appellant alone

to have committed the offence which was also admitted by the

appellant while he had given the confession statement which led

to the recovery of the ornaments. Even though the confessional

statement may not admissible, but the recovery made on the

basis of the said confessional statement establish the offence to

have been committed by the appellant alone. Thus, prayed for

dismissal of the appeal.

13. Having heard the contentions put forth on either side and

on perusal of records, what is paramount to be considered at

this juncture is what is the suspicion on the basis of which the

police authorities apprehended the appellant. The entire

evidence which has been adduced by the prosecution and also

the statements recorded during the course of investigation does

not give even slightest of hint as to on what basis the police

authorities or the investigating agency suspected the appellant to

have committed the offence. There is no call detail report of the

mobile phone used by the deceased so also the mobile phone of

the appellant and the mobile phone of the two were also were not

seized or recovered and there is also no averment by the

prosecution of the suspicion falling upon the appellant on the

basis of any telephonic conversation.

14. Coming to the aspect of last seen theory, if we look at the

evidence of PW.5, the same is as vague as it can be. It does not

give any indication on which date was the function held at his

house and whether the appellant and the deceased both had

come together and whether both had gone together. Since it was

a function it must have been attended by large number of people

from the village and the appellant and deceased also must have

attended as an invitee, but that does not by itself mean that they

had come to the function and had also gone from the function

together. In the absence of clear specific statements in respect of

the last seen, the last seen theory propounded by the

prosecution is highly unacceptable. To make things worse, there

is also not even one witness examined on behalf of the

prosecution to show that the appellant was seen anywhere near

the place where the dead body of the deceased was found or

recovered on the fateful day.

15. Another aspect which needs to be appreciated is that

according to PW.1 he was informed on 27.09.2014 by PW.3 that

his wife being missing since 26.09.2014. Yet up till 01.10.2014

the missing complaint was not lodged either by PW.1 or by PW.3.

If the case of the prosecution is that the appellant (first wife of

the deceased) was having frequent interactions with the

deceased and the two were having a cordial relationship, this

must have drawn the annoyance of PW.3 who is her present

husband and also must be having a grudge with the deceased.

And on account of such grudge, PW.3 also could be suspected

for commission of the said offence. Further, the motive

attributed by the prosecution for the appellant to have killed the

deceased for gains, that too, for a few ornaments which the

deceased was wearing does not find sufficient force for somebody

to kill a person for so small a gain. Thus, prima facie, this Bench

is of the view that the circumstantial evidence said to have been

collected by the prosecution does not give enough strength or

force to accept the prosecution case of the appellant alone to

have committed the offence.

16. The prosecution case also is not sustainable so far as the

recovery of ornaments is concerned, as these ornaments also

have not been proved in the manner it has to be proved as is

envisaged under Rule 35 of the Criminal Rules of Practice, 1990,

and the benefit of which has to go in favour of the appellant.

Neither has the prosecution collected any strong materials to

show that the so-called ornaments that were recovered and

seized were in fact that which was owned by the deceased and

which could be identified on the basis of the said documentary

proof of having purchased by either the deceased or the family

members of the deceased. Thus, for this reason also the recovery

of ornaments becomes doubtful.

17. The law so far as circumstantial evidence is concerned is

also by now well established. The Hon'ble Supreme Court has

time and again held that convictions can be based on

circumstantial evidence, but it should be decided on the touch

stone of law relating to the circumstantial evidence where the

entire chain of links must lead to the only conclusion that the

accused alone is the one who has committed the crime and

nobody else.

18. The Hon'ble Supreme Court in the case of Sharad Birdhi

Chand Sarda v. State of Maharashtra 1 laying down the basic

principles of circumstantial evidence held at paragraph Nos.153

and 154 as under:

(1984) 4 SCC 116

"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 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."

19. Further, the Hon'ble Supreme Court in the case of

Majenderan Langeswaran v. State (NCT of Delhi) 2 considering

the case of conviction based on circumstantial evidence held as

under:

"The legal issue under consideration was whether the circumstantial evidence presented in the case was enough to sustain the conviction.

The court made clear that in cases where the evidence is of a circumstantial nature, certain rules must be adhered to. Firstly, the circumstances from which the conclusion of guilt is drawn must be fully established. This means that each fact that points to the guilt of the accused must be proven individually and beyond a reasonable doubt.

Further, the court emphasized that the proven circumstances should be consistent only with the hypothesis of the accused's guilt. This means that the facts established should point towards the guilt of the accused and no one else. Moreover, these circumstances should be of such a conclusive nature and tendency that they exclude every other hypothesis but the one proposed to be proved.

In this context, the court cited several past judgments. For instance, in the case of Hanumant Govind Nargundkar v. State of M.P 3., the court observed that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The court also referred to the case of Padala Veera Reddy v. State of A.P 4., where it was stated that circumstantial evidence, in order to sustain conviction, must be complete, conclusive, and incapable of explanation of any other hypothesis than that of the guilt of the accused.

(2013) 7 SCC 192

(1952) 2 SCC 71

1989 Supp (2) SCC 706

This key principle was reinforced in a series of other cases, such as C. Chenga Reddy v. State of A.P 5., Ramreddy Rajesh Khanna Reddy v. State of A.P 6., and Sattatiya v.

State of Maharashtra 7.

In the case of G. Parshwanath v. State of Karnataka 8, the court went a step further and explained that while dealing with circumstantial evidence, a distinction must be made between primary or basic facts and inferences of facts to be drawn from them. This means that the court must not only evaluate whether a fact is proven, but also whether that fact leads to an inference of the accused's guilt."

20. Given the said judicial precedents and the factual matrix

as has been narrated in the preceding paragraphs, we are of the

considering opinion the prosecution has miserably failed to prove

its case beyond reasonable doubt to reach to the conclusion that

the offence to have been committed only by the appellant and

none other than the appellant. The prosecution case also does

not have the very foundation on the basis of which the

investigation shifted towards the appellant of being a strong

suspect or a person who would have committed the offence.

21. For all the aforesaid reasons, the impugned judgment of

conviction is not sustainable and the same deserves to be and is

accordingly set aside / quashed. The appellant stands acquitted