K.Suresh vs The State Of Ap., Rep By Its P.P And 3 ...
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Telangana High Court

K.Suresh vs The State Of Ap., Rep By Its P.P And 3 ... on 26 September, 2024

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

             CRIMINAL APPEAL No.270 OF 2015
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The appellant who is the brother of the deceased has filed

the present appeal questioning the acquittal of respondents 2 to

4 who were tried for the offence of murder by the Sessions

Court.

2. Heard learned counsel for the appellant/accused and Sri

Jithender Rao Veeramalla, learned Additional Public Prosecutor

for appellant-State.

3. Briefly, the case of the prosecution is that respondent/A-1

and A-2 are brother and father of A-3. According to the

investigation, it was found that the deceased who is the brother

of P.W.1 developed acquaintance with A-3 and he wanted to

have physical relation with her and threatened that if A-3 does

not cooperate, he would kill her. Vexed with the attitude of the

deceased, A-3 informed her brother and father who are A-1 and

A-2. They planned to murder him on 26.01.2012. When the

deceased repeatedly called A-3 on phone, A-3 asked the

deceased to come to her rented house in the mid night. When

the deceased went there, he was attacked by A-1 and A-2 who

were already hiding in the house. According to the prosecution

case, A-1 closed the mouth of the deceased from backside, A-2

caught deceased and tied his legs with gunny bags. A-3 caught

hold of the legs and A-1 smothered the deceased resulting in

his death.

4. The body was taken on the motor cycle of P.W.4 near to

SRSP canal situated at the outskirts of Dharoor Village and the

dead body was thrown into the canal along with watch, cell

phone, sim card and gold chain which was kept in a polythene

cover. The said dead body was noticed on the bund of the

canal in the evening hours of 21.07.2012 i.e., the next day by

the passersby and it was informed to P.W.1

5. P.W.1 then lodged a complaint stating that some

unknown persons must have killed his brother. The Police

having taken up investigation on the basis of the phone calls

made from the cell phone of the deceased, lead to identity of the

accused as the persons who committed murder. They were

arrested on the basis of their confession. Inquest, scene of

offence panchnama and post mortem examination were

conducted. After conclusion of confession and investigation,

charge sheet was filed.

6. Learned Sessions Judge examined P.Ws.1 to 10 and

marked Exs.P.1 to P.28. Gold chain and mobile phones are

marked as M.Os.1 to 5 and motor cycle of P.W.4 which was

used to transport the dead body of the deceased was marked as

M.O.6. Learned Sessions Judge having considered the evidence

on record found that the evidence placed by the prosecution

regarding phone calls being made to A-3 by the deceased was

incorrect. Ex.P.23 is the document which reveals the mobile

number of A-2. According to the prosecution, on the night

deceased made several calls to A-3 and A-3 informed the

deceased to come to her house. Last call was made about 9:45

p.m. The Court found that there was no evidence that A-3 was

in possession of any mobile phone. A-1 and A-2 were residents

of Chalgal and A-3 was residing in Puranipet, Jagtial. The

Court further found that it is not the case of the prosecution

that A-2 had handed over his mobile phone to A-3 on the

evening of the alleged murder of the deceased.

7. Learned trial Judge further found that there is no

evidence to show as to how Police came to know about mobile

numbers of the deceased and also the suspects. Though under

Ex.P.22, three mobile phone numbers of suspects were noted,

one of the phone numbers pertain to A-2 and other two

numbers i.e., 9949738308 and 9133747797 which were found

in Ex.P.22 were not investigated by the Police and was not

stated to whom the said phone numbers belong to.

8. Learned Sessions Judge also discussed the discrepancies

in the investigation and the manner in which the confession

statements have come into existence. Learned Judge found

that on the basis of confession which was made in the Police

Station, the same cannot be relied on to believe the version of

the prosecution. More so, P.W.4 who is the owner of the motor

cycle turned hostile to the prosecution case. Apparently, none

of the circumstances relied on by the prosecution were proved

beyond reasonable doubt to even suspect the accused in any

manner.

9. Learned counsel appearing for the appellant would submit

that P.W.1 had spoken about motive to murder the deceased.

Learned Sessions Judge in the judgment without discussing the

motive cannot acquit the accused. In fact, the prosecution was

able to prove the circumstances in the case beyond reasonable

doubt.

10. The learned counsel has not narrated as to what are the

circumstances on the basis of which the acquittal could be

reversed. Having gone through the record, the basis of

identifying the accused and the persons who committed murder

of the deceased are the telephone numbers. As already

discussed, the Police failed to prove that A-3 was in possession

of the cell phone number which prosecution alleged that calls

were made to her by deceased. In fact, phone number belongs

to A-2 who was at considerable distance from the house of A-3.

11. The motive projected by the prosecution is that the

deceased was insisting A-3 to have sexual intercourse with him.

Vexed by constant calling and contacting, A-3 with the help of

A-1 and A-2 had planned to kill the deceased. None of the

witnesses had spoken about any such acts of the deceased in

trying to contact A-3 or asking her to have physical relation

with him. Further, P.W.1 neither stated that he was acquainted

with the accused nor that he has knowledge of any kind of

motive to murder his brother.

12. In cases of acquittal, the Hon'ble Supreme Court in Ravi

Sharma v. State (Government of NCT of Delhi) and

another 1, held that while dealing with an appeal against

acquittal, the appellate court has to consider whether the trial

Court's view can be termed as a possible one, particularly when

evidence on record has been analysed. The reason is that an

(2022) 8 Supreme Court Cases 536

order of acquittal adds up to the presumption of innocence in

favour of the accused. Thus, the appellate court has to be

relatively slow in reversing the order of the trial court rendering

acquittal.

13. In Ghurey Lal v. State of Uttar Pradesh 2 the Hon'ble

Supreme Court after referring to several Judgments regarding

the settled principles of law and the powers of appellate Court

in reversing the order of acquittal, held at para 70, as follows:

"70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:

i) The trial court's conclusion with regard to the facts is palpably wrong:

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

(2008) 10 Supreme Court Cases 450

2. The appellate court must always give proper weight and consideration o the findings of the trial court.

3. If two reasonable views can be reached__ one that leads to acquittal, the other to conviction __the High Courts/appellate courts must rule in favour of the accused."

14. There are no compelling reasons to interfere with the well

reasoned judgment of acquittal by the Sessions Judge.

15. The Appeal fails and Accordingly, the same is dismissed.

_________________ K.SURENDER, J

___________________ J. ANIL KUMAR, J

Date: 26.09.2024 dv