Telangana High Court
Sudhamsh Netha , Sunny, Secunderabad., vs The State Of Telangana, Rep Pp., on 18 February, 2025
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.464 OF 2017
Between:
Amer Mohammed Jamal ... Appellant
And
The State of Telangana,
Rep. by Public Prosecutor ... Respondent
Criminal Appeal No.381 OF 2017
Between:
Sudhamsh Netha @ Sunny ... Appellant
And
The State of Telangana,
Rep. by Public Prosecutor ... Respondent
DATE OF JUDGMENT PRONOUNCED: 18.02.2025
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
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 Their Ladyship/Lordship wish to
see the fair copy of the Judgment? Yes/No
__________________
K.SURENDER, J
__________________________________
ANIL KUMAR JUKANTI, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
+ Crl.A. No. 464 OF 2017
% Dated 18.02.2025
# Amer Mohammed Jamal ... Appellant
And
$ The State of Telangana,
Rep. by Public Prosecutor ... Respondent
+ Crl.A. No. 381 OF 2017
% Dated 18.02.2025
# Sudhamsh Netha @ Sunny ... Appellant
And
$ The State of Telangana,
Rep. by Public Prosecutor ... Respondent
! Counsel for the Appellants: Smt.Y.Rathna Prabha
^ Counsel for the Respondent: Sri Arun Kumar Dodla,
Learned Additional Public Prosecutor
>HEAD NOTE:
? Cases referred
1
(1984) 4 SCC 116
2
2025 LawSuit (SC) 117
3
HON'BLE SRI JUSTICE K.SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.381 and 464 OF 2017
COMMON JUDGMENT:
1. Criminal Appeal No.464 of 2017 was filed by A1 and Criminal
Appeal No.381 of 2017 was filed by A2.
2. A1 and A2 were convicted for the offences under Sections 302,
380, 201 r/w 120-B of IPC vide judgment in S.C.No.14 of 2015
dated 14.02.2017 passed by the II Additional Metropolitan Sessions
Judge, Hyderabad.
3. Since both the appeals are questioning the conviction of the
appellants/A1 and A2, the appeals are heard together and disposed
off by way of this Common Judgment.
4. Briefly, the case of the prosecution is that, on 21.06.2013, at
3:00 P.M, PW1/complainant lodged a complaint stating that his
sister, Shagufta Shereen (deceased), along with her husband, Amer
Mohammed (A1), and their minor daughter, have been are residing
at H. No. 6-3-566/23/C, 3rd floor, Anjali Apartments,
Venkataramana Colony, Anandnagar Colony, Khairtabad, for the
past eight months. Around 10:30 AM, his brother-in-law (A1) left for
his office, and approximately at 1:55 PM, P.W.1 received a phone
call from A1, informing that PW1's sister had been stabbed to death
and asked PW.1 to come immediately. Upon receiving the
information, PW1 rushed to the house and found that his brother-
in-law/A1 was present. He saw his deceased sister lying dead on
the bed with stab injuries on her throat. He also noticed that empty
jewellery boxes and other items were scattered across the room.
5. P.W.1 further stated that some unknown persons had likely
stabbed the deceased with knives and fled after stealing a gold
necklace set (bracelet and earrings) weighing about 2 tolas, a gold
chain weighing about 1 tola, and cash amounting to ₹2,70,000/-.
6. Upon receiving the complaint from PW1, PW21, Detective
Inspector of Police, Panjagutta PS, registered a case in Cr. No.
442/2013 under Sections 302 and 380 of the IPC and commenced
the investigation.
7. During the course of investigation, PW21, along with the staff,
visited the crime scene and, in the presence of mediators P.Ws. 11
and 12, had the scene photographed with the assistance of P.W.14.
P.W.21 seized a blood-stained bed sheet and pillow cover. After
conducting an inquest in the presence of PW13 and LW16, the
deceased's body was sent to the mortuary at Gandhi Hospital,
Secunderabad, where it was preserved. On 22.06.2013, P.W.18
conducted an autopsy on the deceased's body in the presence of
PW13, LWs 16 and 17. At the mortuary, PW21 collected the
deceased's blood-stained clothes. PW15 photographed the
deceased's body during the autopsy.
8. P.W.21 then secured the presence of PWs 1 to 3 (the
deceased's brother, father, and mother), circumstantial witnesses
LWs 4, 6, 8, and PWs 4 to 10 and 19, as well as photographers PWs
14 and 15. Their statements were recorded in detail.
9. P.W.1 spoke about frequent petty quarrels between his
brother-in-law/A1, and the deceased over trivial family matters and
expressed suspicion about A1's involvement in the deceased's
death. PWs 2 and 3 corroborated PW1's statement. P.W.6, a relative
of the deceased, stated that he had seen Sudhamsh Netha/A2,
visiting the deceased's house. He further mentioned that A2 was
carrying a bag while going upstairs and was later seen leaving
hurriedly with the same bag.
10. P.W.17, Chief Medical Officer, examined A2 and noted nail
injuries allegedly sustained during a struggle with the deceased.
PW.17 issued a medical certificate.
11. P.W.18, the doctor who conducted the autopsy, documented
the injuries and opined that the estimated time of death was
between 12 to 24 hours before the post-mortem examination (PME).
The cause of death was attributed to multiple stab injuries to the
neck, combined with organophosphate, an insecticide poison.
L.W.27, Assistant Director of APFSL, examined the material objects
seized from the crime scene and the deceased's body. The FSL
report dated 17.10.2013 stated that item nos. 1 to 9 were examined
and human blood was detected on them. The blood group on item
nos. 1, 2, and 4 to 9 was determined to be 'AB,' while the blood
group on item no. 3 could not be identified. PW21 also collected
A1's mobile phone call data. On 23.06.2013, at 4:30 P.M, A1 was
apprehended at his residence in West Marredpally, Secunderabad.
In the presence of mediators PW20 and LW21, A1's confessional
statement was recorded, wherein he allegedly admitted to planning
the deceased's murder by hiring a killer. Based on A1's confession,
PW21 seized the following:
1. One black Samsung Duos mobile phone (Dual SIM) with
IMEI Nos. 353576058322290 and 353577058322298 and
SIM No. 9966853700.
2. One black Samsung Galaxy Note GTN 7000 mobile phone
with SIM No. 9052285551 and IMEI No. 382935054826046.
3. One gold chain weighing 8.860 grams.
4. One gold ring weighing 1.630 grams.
5. One pair of gold ear studs weighing 4.720 grams.
6. One gold black beads chain weighing 9.370 grams.
12. Pursuant to A1's confession, PW21 apprehended A2 on
23.06.2013 and, in the presence of PW20 and LW21, recorded A2's
confessional statement.
13. The investigation established that A1 married the deceased in
2008, and deceased gave birth to a daughter. There were frequent
petty quarrels between A1 and the deceased over family matters.
Unable to pacify his wife, A1 allegedly devised a plan to eliminate
her by hiring a killer. As per A1's plan, on 3.6.2013, he purchased a
Vodafone SIM card bearing No. 9642193910 for Rs. 200 in the
name of Jamal, using his driving license as ID proof. Subsequently,
A1 contacted A2, explained his plan, and A2 allegedly agreed to kill
the deceased in exchange for Rs. 3,00,000/-, to which A1
consented. In furtherance of their criminal conspiracy, A1 procured
Restyl 0.25 and Mypspaz 10 tablets from PW10's medical shop,
allegedly intending to induce the deceased into deep sleep. Further,
A1 allegedly obtained poison to ensure that the deceased would be
unable to resist A2's attack. As per their plan, A1 allegedly
administered Restyl 0.25, Mypspaz 10 tablets, and poison to the
deceased. Once the deceased lost consciousness, A1 informed A2
about the same through his Vodafone SIM No. 9642193910 and
allegedly instructed A2 to proceed with the killing.
14. On 21.6.2013, A2 entered the house and allegedly stabbed the
deceased to death with a knife before taking away her gold
ornaments to mislead the police. After allegedly committing the
murder, A2 informed A1 through Vodafone SIM No. 9642193910.
Following A1's instructions, A2 destroyed the SIM card to avoid
being traced by the police. A2 subsequently handed over the
deceased's gold ornaments to A1, which were later seized from A1's
possession. Based on the investigation, A1 and A2 were charge-
sheeted for offences under Sections 302, 201, 380, and 120(B) of
IPC.
15. Learned Sessions Judge convicted the appellants mainly on
the basis of circumstantial evidence. According to the learned
Sessions Judge, P.Ws.1 to 3, P.W.6 and P.W.8 witnesses and the
recoveries which were effected from A1 and A2 make out a case
against both the appellants.
16. The five golden principles constituting panchsheel to prove a
case based on circumstantial evidence were summed up in Sharad
Birdhichand Sarda v. State of Maharashtra 1 , which reads as
follows:
"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]
(1984) 4 SCC 116
"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."
17. According to the prosecution, there were frequent quarrels in
between A1 and the deceased over family issues. Unable to bear the
frequent fights, A1 planned to eliminate his wife/deceased by hiring
killer/A2. The evidence of quarrel, in between the deceased and A1,
is stated by P.W.1/brother of the deceased, P.Ws.2 and 3 parents of
the deceased. According to P.Ws.2 and 3, at the time of marriage,
27 tulas of gold, Rs.1.00 lakh cash was given, apart from furniture.
When the deceased was pregnant, she was neglected by her
husband/A1, as such, deceased was taken to the house of P.Ws.2
and 3. The harassment continued even after the birth of the child.
In the year, 2011, A1 and the deceased moved to Bangalore. The
deceased used to inform P.W.2 about frequent fights with A1. In the
year 2012, A1 and deceased shifted back to Hyderabad and stayed
at West Marredpally. Even there also, harassment continued.
According to P.Ws.2 and 3, on 18.06.2013, the deceased called
P.W.2 stating that A1 had beaten her and the deceased requested
PW.2 to take her. P.W.2 then assured the deceased that they were
planning to visit Hyderabad on 21.06.2013 and sort out issues.
18. During the course of cross-examination of P.Ws.1 to 3, they
admitted that the statements regarding strained relation in between
the deceased and A1, were an improvement from the complaint-
Ex.P1 and from their Section 161 Cr.P.C statements. The omissions
regarding the harassment was proved during cross examination of
the Investigating Officer. The Investigating Officer during his
evidence deposed that he did not collect any documentary evidence
to support the claim of P.Ws.1 to 3 that gold, household articles
and cash were given at the time of marriage.
19. The incident happened on 21.06.2013. Around 3.00 p.m,
P.W.1/brother of the deceased lodged complaint with the police. In
the complaint, he stated that some unknown persons stabbed his
sister with knife and blade after committing theft of gold ornaments.
P.W.21/investigating officer having received complaint, went to the
scene where A1 was present. In the inquest that was held at 4.00
p.m on the same day, it is mentioned that unknown persons had
committed murder. Though P.Ws.1 and 2 stated before the Court
that they suspected A1 of being responsible for the murder of the
deceased, however, the same was not stated till conclusion of the
inquest proceedings, at 7:00pm.
20. The police did not take the help of any fingerprint expert or
collect any clues from the scene. In Ex.P6, scene of offence
panchanama, it is stated that the scientific officer, fingerprint
experts, Dog squad and other police officials visited the scene of
offence, however, P.W.21 did not cite any of these officials as
witnesses.
21. According to the prosecution case, A1 contacted A2 on
03.06.2013 after he purchased Vodafone SIM card bearing
No.9642193910 and, contacted A2 on 8008976854. According to
the prosecution, after the incident, A1and A2 made phone calls,
contacted one another through said phone numbers and after the
murder of the deceased, SIM cards were destroyed.
22. In the case of Chandrabhan SudamSanap v. State of
Maharashtra 2 , the Hon'ble Three Judge bench of the Supreme
Court held that, an electronic evidence in the form of CDR without
any certification under Section 65-B of the Evidence Act has to be
eschewed from consideration. In the present case, admittedly,
Section 65-B certification was not filed, to rely on the call data
record filed by the prosecution. The link to show that A1 and A2
contacted one another, is the call detail records, which cannot be
made basis to conclude that there was communication between A1
and A2.
23. One more circumstance of the prosecution case is that A1
purchased Restyl 0.25 and Myospaz, each 10 tablets from P.W.10's
medical shop. The said tablets were administered to the deceased
by A1 and also insecticide poison. Thereafter, he called up A2, who
had key to the flat. A2 then went to the flat around 11.00 a.m and
committed murder of the deceased. P.W.6 was waiting in the cellar
2025 LawSuit (SC) 117
of the building complex when A2 went upstairs and came down on
the date of the incident.
24. The cause of death, according to the postmortem examination
doctor/P.W.18 are the multiple stab injuries to the neck associated
with organo phosphate insecticide poison. P.W.18 deposed in his
cross-examination that, organo phosphate poisoning cases have
classical smell which can be detected at the time of postmortem.
However, in the postmortem report, it is mentioned that there was
no specific smell present. The prosecution has not come up with
any evidence to show from where the insecticide poison was
purchased by A1.
25. P.W.10 was examined by the prosecution to state about A1
purchasing Restyl tablets from his shop. P.W.10 stated that there
will be a duplicate copy of prescription which has to be retained
with the shop. However, no such copy of prescription was seized
from the shop. Ex.P5 was filed by the prosecution and marked
through P.W.10. According to P.W.10, he sold tablets on
11.06.2013 to Amar Mohd.Jamal, however, he did not identify the
person purchasing the tablets.
26. The prosecution relied on the evidence of P.W.6 to show that
A2 was present at the scene on the date of the incident, i.e.,
21.06.2013. According to P.W.6, he went to the house on
21.06.2013 at about 11.00 a.m and knocked the door of the
deceased. However, there was no response. He came down and
started waiting for the deceased expecting that she would return.
Meanwhile, he saw A2 going upstairs and coming down, 15 to 20
minutes thereafter. Then, P.W.6 again went upstairs and on seeing
that there was no response, he went away. PW.6, further stated that
he attended the cremation of the deceased on 23.06.2013 or
24.06.2013. On television, he saw A1 and A2 in a press meet who
were accused in the murder case. P.W.6 then identified A2 as the
person who went upstairs on the day when he was waiting near the
apartment. Accordingly, he went to the police on 29.06.2013 and
gave statement that A2 was the person who went upstairs and
returned while he was waiting in the apartment parking area. In the
cross-examination, P.W.6 stated that he is a resident of Agapura,
which is at a distance of 11 km. from A1's flat. He does not know
the telephone numbers of the deceased, A1, or P.W.2. PW.6 further
stated that he was waiting in the parking area. There was a
watchman room. He did not try to deliver parcel to the neighbors or
the watchman. P.W.6 further stated that he does not remember on
which TV channel he saw A1 and A2. The police, according to
P.W.6, had shown him photograph of A2 before he was asked to
identify A2. No test identification parade was conducted.
27. P.W.6 was examined on 29.06.2013. Though he stated that he
attended cremation of the deceased on 23.06.2013 or 24.06.2013,
he did not give details of any person going up and coming down
while he was waiting in the parking area, near the watchman's
room. P.W.4 is the wife of the watchman of the said building.
According to her, she was on the ground floor. Around 11.00 a.m,
and at about 12.30, the daughter of the deceased returned home.
Normally, the deceased used to come down and pick up her
daughter. However, she did not come down, and as such, P.W.4
took the daughter to the flat. Since there was no response near the
flat, she called A1. A1 informed P.W.4 that he would be back in 20
minutes. A1 returned and found the deceased dead. Immediately,
three Doctors were called, who were in the apartment, who came to
the scene and checked the deceased and found her dead. In the
cross-examination, P.W.4 admitted that there was a watchman
quarter in the parking area and any visitor to the apartment would
necessarily pass through the quarter of the watchman and if any
stranger comes, they will question them regarding the purpose of
visit. P.W.4 curiously did not state about either the presence of
P.W.6 in the parking area where she was waiting near watchman
room, or about the visit of A2. P.W.6 stated that he did not have the
number of the deceased or A1 or PW.2. His presence gives rise to
any amount of doubt since he asserts that he was at the scene near
the apartment without making any call and states that he waited in
the parking area besides watchman room. It is an apartment
complex and normally, there would be several persons going up and
down through lift or through stairs. It is not known as to how P.W.6
was in a position to identify A2 as the person who went upstairs
and came down. There are several flats in the apartment complex.
The evidence of P.W.6, in the background of the evidence of PW.4 is
suspicious and appears to have been planted.
28. The prosecution relied on the injuries received by A2 to
suggest that he attacked the deceased and in the process, received
simple injuries on his body. P.W.17 is the Doctor, who examined
A2 on 24.06.2013 at 12.15 p.m. Wound certificate-Ex.P20 was also
issued by P.W.17. The cause of death of the deceased was organo
phosphate poison and stab injuries. According to prosecution case,
Restyl tablets were also administered by A1. If at all insecticide
poison and Restyl tablets were administered, it is not known as to
why no signs of such insecticide were found during postmortem
examination. If a person is administered both sleeping tablets and
also insecticide poison either such person would be unconscious or
would take steps to vomit poison. At the scene, no such evidence of
poison was present during panchanama. The prosecution failed to
explain as to how A2 received injuries in the background of the
deceased being administered with sleeping pills and insecticide
poison. At the time of observation of dead body, the hands of the
deceased were tied, as seen in Ex.P21/postmortem examination
report. The said factor raises doubt regarding prosecution's claim
that A2 was injured by the deceased when he attacked her.
Admittedly, nothing was collected from the nails of the deceased to
know whether anything was embedded in between the finger nails.
29. The weapon seized from A2 is a vegetable cutter knife with
sharpness on one side. P.W.18 deposed that stab injuries
sustained by the deceased are of spindle shape and with clean cut
margins. The postmortem examination Doctor was not shown the
knife MO9 which was seized from A2 to support the version of the
prosecution that the injuries were caused by MO9. P.W.18 admitted
that both the hands of the deceased were tied with a pink and blue
chunni. P.W.18 admitted that the spindle shaped injuries with
clean cut margins are caused by a double edged weapon. The said
admission of the Doctor regarding the injuries that would be
possible with a double edged weapon and absence of any smell of
insecticide, creates suspicion of the correctness of the claim of the
prosecution that the deceased was administered insecticide poison
and also stabbed with MO9 which has a sharp edge on only one
side.
30. The prosecution further relies on the recoveries that were
effected at the instance of A1 and A2. A1 was apprehended on
23.06.2013. P.W.20, independent person was asked to act as a
witness to the confession and seizure of A1. A1 was in the house
and in the presence of P.W.20 and other police personnel, he
confessed to the crime and produced gold ornaments which are gold
chain, gold black bead chain, two ear studs, one gold ring, one gold
bracelet, which are MOs.2 to 6, respectively. A1 led the police to the
house of A2 at East Marredpally. A2 was present in the house when
A1 and others went there. A2 was questioned and his confession
was also recorded. MO9- knife was seized along with cash of
Rs.3.00 lakh, blood stained clothes, phone, and key, which
according to the prosecution is the key to the flat of A1.
31. P.W.20, independent witness to the confession and seizure, in
his cross-examination admitted that he is having acquaintance with
the family of P.Ws.1 to 3 as they used to live in the same colony.
P.W.20 further admitted that he went to the Court two or three
times and on all the occasions, he had interacted with P.Ws.1 and
2.
32. The gold ornaments, MOs.2 to 6 which were seized at the
instance of A1, were neither subjected to test identification parade
in accordance with Rule 34 of Criminal Rules of Practice, nor shown
to P.Ws.1 to 3 to identify that the jewelry was that of the deceased.
33. According to the case of the prosecution, A1 offered Rs.3.00
lakhs to A2 to kill his wife. According to the plan, A1 would
administer poison and sleeping tablets, and thereafter, A2 would
enter into the flat and commit murder of the deceased. The key-
MO8 was seized at the instance of A2. At the time of seizure, there
were two keys with A2 and in the Court only one key was marked
bearing No.1142163. However, the number of the key was not
mentioned in Ex.P27, which is the seizure panchanama. Though
P.W.7 was examined, who is the owner of the flat, MO8 was not
shown to him. The police ought to have taken the key to the flat and
opened the lock of the flat in the presence of independent
witnesses. In the absence of any such exercise undertaken, and the
owner, P.W.7 not identifying that MO8 was the key of A1's flat, it
cannot be assumed that the key MO8 is the key to the flat of A1.
Another circumstance is the seizure of cash of Rs.2,70,200/- from
A2. It is the case of prosecution that A1 withdrew cash of Rs. 3
lakhs. It cannot be assumed that the cash found in the house of A2
was handed over by A1 to A2, in the absence of the prosecution
failing to prove communication in between A1 and A2.
34. The prosecution is bound to prove each and every
circumstance beyond reasonable doubt in a case of circumstantial
evidence. In the present case, every circumstance gives rise to
doubt, as already discussed above. Such doubtful circumstances
cannot form a complete chain, which would unerringly point
towards guilt of the appellants. In view of the discrepancies in the
case of the prosecution, benefit of doubt is extended to the
appellants.
35. In the result, the judgment of trial Court in S.C.No.14 of
2015, dated 14.02.2017 is set aside, and the appellants are
acquitted.
36. Since the appellants are in jail, they are directed to be released
forthwith, if they are not required in any other case.
37. Accordingly, both the appeals are allowed.
__________________
K.SURENDER, J
__________________________________
ANIL KUMAR JUKANTI, J
Date:18.02.2025
kvs
HON'BLE SRI JUSTICE K.SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.381 and 464 of 2017
Date: 18.02.2025
kvs
