Telangana High Court
Posham Dasharatha, vs The State Of Telangana, on 13 February, 2025
1
IN THE HIGH COURT FOR THE STATE OF TELANGANA,
HYDERABAD
***
CRIMINAL APPEAL No.589 OF 2017
Between:
1. Posham Dasharatha, S/o Krishnaiah
......Appellant/Accused No.1
Versus
The State of Telangana
.....Respondent/Complainant
DATE OF JUDGMENT: 13.02.2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes/No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes/No
_____________________
K. SURENDER, J
_____________________
J. ANIL KUMAR, J
2
* THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
+ CRIMINAL APPEAL No.589 OF 2017
% 13.02.2025
1. Posham Dasharatha, S/o Krishnaiah
......Appellant/Accused No.1
Versus
The State of Telangana
.....Respondent/Complainant
^Counsel for the appellant/
accused : Sri. T.Pradhyumna Kumar Reddy,
learned Senior Counsel
^Counsel for the respondent/
complainant : Dodla Arun Kumar
Additional Public Prosecutor
for State
< Gist:
> Head Note:
? Cases referred: NIL
3
* THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
+ CRIMINAL APPEAL No.275 OF 2025
% 13.02.2025
1. Posham Poorna Chander Rao, S/o Ayodhya
......Appellant
Versus
1. Dr. K.Narasimha Reddy, S/o Not known
2. Konda Ram Babu, S/o Konda Somaiah
3. Mittapally Prakash, S/o Chinna Mallaiah
4. Posham Venkanna, S/o Satyam
5. The State through Inspector of Police, Miryalaguda
.....Respondents
^Counsel for the appellant/
accused : Sri. T.Pradhyumna Kumar Reddy,
learned Senior Counsel
^Counsel for the respondents/
complainants : Dodla Arun Kumar
Additional Public Prosecutor
for State
< Gist:
> Head Note:
? Cases referred: NIL
4
* THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
+ CRIMINAL APPEAL No.276 OF 2025
% 13.02.2025
1. Posham Poorna Chander Rao, S/o Ayodhya
......Appellant/Accused No.1
Versus
1. Thotti Srinivas @ Sreenu, S/o Ramachandraiah
2. Gopagani Lakshadri, S/o Bharathaiah
3. Adimoola Ravi, S/o Venkataiah
4. Thotti Venkanna, S/o Ramulu
5. Mukkoti Shiva Kumar, S/o Ramachandraaih
6. The State through Inspector of Police, Miryalaguda
.....Respondents
^Counsel for the appellant/
accused : Sri. T.Pradhyumna Kumar Reddy,
learned Senior Counsel
^Counsel for the respondents/
complainants : Dodla Arun Kumar
Additional Public Prosecutor
for State
< Gist:
> Head Note:
? Cases referred: NIL
5
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.589 OF 2017 and
CRIMINAL REVISION CASE Nos.2338 and 2368 of 2017
converted as CRIMINAL APPEAL Nos.275 and 276 of 2025
COMMON JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
Criminal Appeal No.589 of 2017 is filed by accused
No.1 in S.C.No.27 of 2011 questioning his conviction and
sentence under Section 302 r/w 149 of IPC.
2. In all, 10 accused were tried for the very same offence.
Accused Nos.1 to 6 were tried in S.C.No.27 of 2011 and
accused Nos.1 to 4 were tried vide S.C.No.374 of 2010.
Initially, accused Nos.1 to 6 were charge sheeted for the
offences under Sections 147, 148, 302, and 120-B r/w 149 of
IPC. Aggrieved by the deletion of the names of four other
accused in the charge sheet (who are accused Nos.1 to 4 in
S.C.No.374 of 2010), P.W.1 filed a private complaint before
the learned Magistrate. The learned Magistrate enquired in
accordance with Section 200 Cr.P.C., took cognizance of the
offence and numbered it as P.R.C. The case was committed to
the Court of Sessions. After committal, the same was
numbered as S.C.No.374 of 2010. Learned Sessions Judge
tried both, the S.C.No.27 of 2011 (against 6 accused) and
S.C.No.374 of 2010 (against 4 accused on the basis of private
complaint) together and disposed both the cases by way of a
common judgment. After trial, the learned Sessions Judge
found that only accused No.1 in S.C.No.27 of 2011 was guilty
and all the other 9 accused were not guilty.
3 P.W.1-complainant filed Crl.R.C.No.2338 of 2017
questioning the acquittal of accused Nos.1 to 4 in S.C.No.374
of 2010 and Crl.R.C.No.2368 of 2017 questioning the
acquittal of accused Nos.2 to 6 in S.C.No.27 of 2011. The
Hon'ble Chief Justice directed both the Crl.R.C.Nos.2338 and
2368 of 2017 to be tagged along with Crl.A.No.589 of 2017.
4. Learned counsel appearing for the
respondents/accused in revision cases submitted that,
against the acquittal of accused, criminal revision cases are
not maintainable and the defacto complainant can only file
appeal under Section 372 Cr.P.C., or the State has to file
appeals against acquittals. Having considered the above
submission, it appears that the criminal revision cases were
filed on the reasonable belief that the State can only file
appeal against acquittal and the de facto complainant has to
prefer Criminal Revision. In accordance with Section 401(5) of
Cr.P.C., direction is given to the Registry to renumber both
the Criminal Revisions as Criminal Appeals.
5. Heard Sri T. Pradhyumna Kumar Reddy, learned Senior
Counsel appearing for the appellant in Crl.A.No.589 of 2017
and also other counsel in Crl.R.C.Nos.2338 and 2368 of 2017
and Mr. Dodla Arun Kumar, learned Additional Public
Prosecutor appearing on behalf of respondent-State.
6. The case of prosecution is that PW1, who is brother of
the deceased, lodged a telugu written complaint with the
Police on 28.08.2009 at 11.45 P.M. In the complaint, PW1
narrated that 2 hours prior to the complaint at about 09.45
P.M., his brother namely Posham Srinivas, was attacked by
accused No.1 (Posham Dasaratha) and some others infront of
Gopi Chest Hospital, with axes and knives. The deceased was
hacked with axes, while coming from bus stand. Hearing the
shouts of the deceased, PWs.1, 3, and 4 went there. The
accused were hiding in Gopi Chest Hospital and all the
accused came out from the hospital and attacked the
deceased. Immediately, the deceased was shifted to area
hospital. There, doctors informed that condition of the
deceased was serious and while he was being taken to
Hyderabad, enroute, the deceased died at around 10.45 P.M.
PW1 and others returned and the body was then kept in the
Area Hospital mortuary.
7. The complaint was received by PW14. He registered the
FIR which is Ex.P21. Investigation was then handed over to
PW15 at 11.45 P.M. PW15 went to the Government Area
Hospital where the dead body was kept. From the hospital, he
went to the scene of offence. Scene of offence was preserved
by posting constables. The next day at 06.00 A.M., PW15
again went to scene of offence along with the independent
witnesses, PW10 and another. The rough sketch was drawn,
which is Ex.P14. PW15 seized the blood stained axe, a piece
of axe stick, towel and another axe at the scene. One vodka
bottle and a pair of black shoes were also found. Further,
there was a broken cricket bat at the scene. All the said items
were seized from the scene and controlled earth was also
collected for the purpose of FSL examination. The inquest
proceedings were conducted on 29.08.2009, in the hospital
and body was sent for post mortem examination. PW12
conducted post mortem examination and found the following
injuries:
"1. Lacerated would center of left palm with dislocation of
2nd, 3rd, 4th left fingers attached only with skin.
2. Lacerated wound left fore arm 1x1 inches.
3. Incised wound skin deep on left chest 18 cm x 1 cm.
4. Incised deep would left chest 8 cm x 7 cm deep x ½ cm.
5. Lacerated would left chin 6 ½ x ½ cm x 1 cm.
6. Incised wound left side neck 6 ½ cm x 3 cm x 2 cm,
with cutting of vessels, nurves and muscles of left side
neck.
7. Incised wound left fore head 10 cm x ½ cm extending
to the left eyebrow.
8. Y shaped incised wound right parital region 15 cm x3
cm x 2 cm long from the center of it to the center of scalp
8 cm x 3 cm x ½ cm.
9. Lacerated comminuted wound with both bones outside
at lower 1/3rd of right fore arm.
10. Incised wound left side nose 14 cm x 3 ½ x 3 cm
extending to the upper lip.
Internal Injuries:
11. Fracture of left frontal bone corresponding to injury
No.7.
12. Irregular skull fracture Y shaped corresponding to
injury No.8, with brain matter outside the skull."
8. The doctor opined that death was on account of
multiple injuries. On 16.11.2009, PW13 conducted Test
Identification Parade in the Sub Jail, Miryalaguda. There, the
witnesses PWs.2, 3, 4, and one person namely G. Srinivas
(whose name was mentioned in the complaint) participated in
the Test Identification Parade. There, the witnesses identified
the accused Nos.2 to 6.
9. The appellant and other accused were arrested on
04.09.2009. Cell phones of accused were seized from their
possession. After concluding investigation, charge sheet was
filed only against accused Nos.1 to 6 under Sections 147,
148, 302, and 120-B r/w 149 of IPC. The names of four
accused were deleted by the Police.
10. Aggrieved by the non inclusion of 4 accused, a private
complaint was filed by PW1. On the basis of statement
recorded, the concerned Magistrate took cognizance of the
offence and committed the case to the Court of Session. As
already stated, both the Sessions cases were tried by the
learned Sessions Judge and common judgment was passed.
Only accused No.1 was convicted and all the remaining
accused were acquitted. Criminal revision cases were filed
questioning the acquittal in both the Sessions Cases.
11. In accordance with Section 401(5) of Cr.P.C., criminal
revision cases were directed to be converted as appeals.
12. PWs.1 to 5 and 7 stated before the Court that they
witnessed the incident. All of them stated that it was accused
No.1, who hacked the deceased on his head, chest, neck, and
other parts of the body.
13. The motive for murder as projected by the prosecution
is that the deceased and the appellant were running Medical
Shop in Sridevi Hospital. Losses were incurred in the
business and disputes arose in between the deceased and the
appellants. Further, the deceased set up his own business by
constructing a building. The appellant asked the deceased to
lease out the premises which request was denied. The
appellants bore grudge and attacked the deceased with the
help of other accused.
14. Learned Senior Counsel for accused No.1 would submit
that i) The presence of eye witnesses is ruled out by the
Investigating Officer. ii) The Police Station was within 1 k.m.
distance from where the incident happened, however, the FIR
reached the Court on the next day at 11.30 A.M. The said
delay is not explained by the prosecution. iii) Though, PW1
stated that he was present at the scene, no blood was found
on his clothes nor his clothes were seized. If at all PW1 and
others have shifted the body of the deceased to the hospital,
it is natural that blood stains would have passed on to the
wearing apparel of the witnesses PWs.1 to 5 and 7.
15. On the other hand, learned Public Prosecutor would
submit that there is no reason why PWs.1 to 6 would speak
false against the appellant. Since there is abundant
corroboration in between eye witnesses, their evidence cannot
be disbelieved on the basis of the Investigating Officer's
evidence. The presence of PWs.1, 3, and 5 is mentioned in the
complaint.
16. Learned counsel appearing in the appeals against
acquittal would submit that there is convincing eye witness
account and the deceased was attacked in a brutal manner.
Learned Sessions Judge found that there was unlawful
assembly and convicted the accused No.1 under Section 302
r/w 149 of IPC. In the said circumstances, when learned
Sessions Judge found that there was unlawful assembly,
learned Sessions Judge erred in extending benefit of doubt to
other accused Nos.2 to 10. The Sessions Judge ought to
have convicted all the accused with the aid of Section 149 of
IPC.
17. Firstly, it has to be seen whether the complaint was
lodged in time. According to PW14, Telugu written complaint
was received at 11.45 P.M. on 28.08.2009. Immediately,
PW14 registered the FIR and informed PW15 the investigating
officer.
18. PW14 in his cross examination stated that the report
along with FIR/Ex.P21 reached the JFCM, Miryalaguda at
11.20 A.M. on 29.08.2009. He further admitted that distance
between Police Station and JFCM Court is ½ k.m., and if one
goes on foot from the Police Station to the JFCM Court, he
would reach within 10 minutes. The prosecution has not
elicited any reasons for the delay of nearly 11.00 hours 45
minutes, for the FIR to reach the concerned Court. The said
delay was not explained. The delay gains importance in the
back ground evidence of Investigating Officer PW15's
evidence. PW15 stated as follows during cross examination:
"10. I have gone through the contents of First
Information Report prior to commencing my
Investigation. PW-1 stated in his report that he went
to the scene of offence on hearing the cries. It is true
PW-1 did not reveal in Ex.P-1 about the presence of
PW-2. It is true as per the contents of Ex.P-1 the use
of Cricket Bat was not stated. I did not mention in
Ex.P-4 that PW-1 as an eye witness and also names
of any other persons. I did not mention the names of
eye witnesses in column.no.9(a).
11. According to my investigation, G. Srinivas(LW-5)
was with the deceased. According to the statement of
G.Srinivas (LW-5) the remaining witnesses came
after the incident. Witness volunteers that according
to the statement of G. Srinivas (LW-5) the remaining
witnesses came while the incident was going on. It is
true that A-2 to A-6 were strangers to PW-1. It is
true that I made requisition before the Magistrate to
identify the accused through PW-1. I did not receive
summons from the court for PW-1 to participate in
Identification Parade. It is true none of the witnesses
stated before me about the physical features of the
accused participated in the commission of offence. In
my investigation none of the witness stated that the
accused no.1 particularly beat with any object or
also armed with any object.
12. PW-1 did not state before me the A-1 hacked
with Axe on the head and chest of deceased. PW1
stated before me as in Ex.D-1 to D-3.
13. PW-1 is not resident of Miryalaguda town.
According to my investigation PW-1 runs kirana
shop in Duggepally village and he came to purchase
kirana saamans. It is not true to say, that initially I
suspected PW-1 for the murder of the deceased.
14. PW-1 did not state before me that A-1 beat his
brother-in-law with Axe on his head and on his neck
and also presence of Kurra Koteshwar Rao and
Srinivas Murthy and also that an accused
surrounded his brother-in-law and that he heard
sound like pat. PW-1 did not state before me that A-
1 to A-10 came from Gopi chest Hospital suddenly.
PW-1 did not state before the Magistrate that A-1
beat his brother-in-law with Axe on head and neck.
It is true PW-2 stated as in EX.D-4.
17. I do not know PW-5 and PW-7. My investigation
does not reveal their presence at scene and
witnessing the incident."
19. The crucial witness, namely G.Srinivas, who was shown
as LW5 in the charge sheet, was given up during course of
trial. No reason is given as to why G.Srinivas was given up
during the course of trial. It is admitted that other than
accused No.1, PW1 is not acquainted with any of the other
accused Nos.2 to 6, who were charge sheeted initially. They
were all strangers. No descriptive particulars are given by
PW1 in his complaint about accused, other than accused
No.1. Even during the course of TI Parade, all the accused
(accused Nos.2 to 6) complained to the Magistrate that they
were shown to the witnesses before the TI Parade was
conducted. The same was noted down by the learned
Magistrate in the Test Identification proceedings, which is
Ex.P20.
20. The Hon'ble Supreme Court in Rajeevan and another
v. State of Kerala 1, found that non-explanation of the delay
in sending FIR to the concerned Court would be fatal to the
prosecution. The Hon'ble Supreme Court held as follows:
"12. Another doubtful factor is the delayed lodging
of FIR. The learned counsel for the appellants
highlights this factor. Here it is worthwhile to refer
Thulia Kali v. State of T.N. wherein the delayed filing
of FIR and its consequences are discussed. At para 12
this Court says:
"First information report in a criminal case is an
extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at
the trial. The importance of the above report can
hardly be overestimated from the standpoint of the
accused. The object of insisting upon prompt lodging
of the report to the police in respect of commission of
an offence is to obtain early information regarding the
circumstances in which the crime was committed, the
names of the actual culprits and the part played by
them as well as the names of eyewitnesses present at
the scene of occurrence. Delay in lodging the first
information report quite often results in
embellishment which is a creature of d afterthought.
On account of delay, the report not only gets bereft of
the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay
in lodging of the first information report should be
satisfactorily explained."
(2003) 3 SCC 355
13. This is the position consistently followed by
this Court in Maharaj Singh v. State of U.P.2 and
recently in Thanedar Singh v. State of M.P.3
14. As feared by the learned counsel for the
appellants, the possibility of subsequent implication
of the appellants as a result of afterthought, maybe
due to political bitterness, cannot be ruled out. This
fact is further buttressed by the delayed placing of
FIR before the Magistrate, non-satisfactory
explanation given by the police officer regarding the
blank sheets in Ext. P-30, counterfoil of the FIR and
also by the closely written bottom part of Ext. P-1,
statement by PW 1. All these factual circumstances
read with the aforementioned decisions of this Court
lead to the conclusion that it is not safe to rely upon
the FIR in the instant case. The delay of 12 hours in
filing FIR in the instant case irrespective of the fact
that the police station is situated only at a distance of
100 metres from the spot of incident is another factor
sufficient to doubt the genuineness of the FIR.
Moreover, the prosecution did not satisfactorily
explain the delayed lodging of the FIR with the
Magistrate.
15. This Court in Marudanal Augusti v. State of
Kerala while deciding a case which involves a
question of delayed dispatch of the FIR to the
Magistrate, cautioned that such delay would throw
serious doubt on the prosecution case, whereas in
Arjun Marik v. State of Bihar it was reminded by this
Court that:
"The forwarding of the occurrence report
is indispensable and absolute and it has to be
forwarded with earliest dispatch which
intention is implicit with the use of the word
'forthwith' occurring in Section 157 CrPC,
which means promptly and without any
undue delay. The purpose and object is very
obvious which is spelt out from the combined
reading of Sections 157 and 159 CrPC. It has
the dual purpose, firstly to avoid the
possibility of improvement in the prosecution
story and introduction of any distorted version
by deliberations and consultation and
secondly to enable the Magistrate concerned
to have a watch on the progress of the
investigation."
21. According to PW1, there were disputes between the
deceased and accused No.1 in respect of running medical
shop. In the back ground of delay of 11 hours 45 minutes for
the FIR to reach the Court and also investigation disclosing
that PWs.1 to 5 and 7 were not present at scene, as admitted
by Investigating Officer, the delay gains significance. In the
present facts of the case, it appears that after finding that the
deceased was attacked, there were due deliberations, which
resulted in Ex.P1 complaint implicating the appellant and
other accused. As already discussed, there was a delay of 11
hours 45 minutes in the complaint reaching the Court. The
Court was at a walkable distance of 10 minutes from Police
Station.
22. Learned Sessions Judge has convicted the accused
No.1 under Section 302 with the aid of Section 149 of IPC.
One person cannot be convicted with the aid of Section 149 of
IPC. Section 149 of IPC enables for conviction of every
member of a group, who had a common object to commit an
offence. Unlawful assembly is defined under Section 141 of
IPC. An assembly of 5 or more persons is designated as an
unlawful assembly and any act done in pursuance of
common object of the group, every member of the said
assembly would be responsible and can be convicted.
23. The Hon'ble Supreme Court in Mahendra & another
v. State of Madhya Pradesh 2, held as follows:
"The legal position in regard to essential
ingredients of an offence referred to in Section 149
are not in doubt. Section 149 prescribes for vicarious
or constructive criminal liability for all members of
an unlawful assembly where an offence is committed
by any member of such an unlawful assembly in
prosecution of the common object of that assembly
or such as the members of that assembly knew to be
likely to be committed in prosecution of that object.
It may be noticed that the essential ingredients of
Section 149 are that the offence must have been
committed by any member of an unlawful assembly,
and Section 141 makes it clear that it is only where
five or more persons constituted an assembly that an
unlawful assembly is born, provided, of course, the
other requirements of the said section as to the
common object of the persons composing that
assembly are satisfied. To say in other words, it is an
essential condition of an unlawful assembly that its
membership must be five or more.
At the same time, it may not be necessary that
five or more persons necessarily be brought before
the Court and convicted, Less than five persons may
be charged under Section 149 if the prosecution case
is that the persons before the Court and other
numbering in all more than five composed an
unlawful assembly, these others being persons not
identified and unnamed."
24. Another doubtful aspect of the prosecution case is how
did all the accused know that the deceased would pass in
2022 LiveLaw (SC) 22
front of Gopi Chest Hospital, at the relevant time. None of the
witnesses stated that the deceased would pass by Chest
Hospital everyday during night. It is not clear as to where the
deceased went and returned from the bus stand on the date
of incident. PW1 is not shown in the inquest as an eye
witness. PWs.3 and 4 were not present during inquest. The
eye witnesses are all related and interested. The unexplained
delay in FIR reaching Court and all other factors create
suspicion regarding the prosecution case being correct.
25. In view of the fore going discussion, since the
prosecution failed to prove the involvement of accused Nos.1
to 10 in the murder of the deceased, beyond reasonable
doubt, both appeals of de-facto complainant fail. Further, the
appellant/accused No.1 in Crl.A.No.589 of 2017 succeeds.
26. In the result, Criminal Appeal No.589 of 2017 is
allowed.
27. The criminal appeals filed questioning the acquittal of
accused Nos.2 to 6 in S.C.No.374 of 2010 and accused Nos.2
to 6 in S.C.No.27 of 2011 are dismissed.
28. The sentence and conviction imposed against the
appellant/accused No.1 in judgment dated 09.05.2017 in
S.C.No.27 of 2011 is hereby set aside. Since the appellant
is in jail, he shall be released forthwith, if he is not
required in any other case.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 13.02.2025
plp
Note: Registry is directed to dispatch
the order forthwith.
