Telangana High Court

Engali Rajababu vs State Of Telangana on 25 February, 2025

                                    1




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

             CRIMINAL APPEAL No.376 OF 2018
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. The Appeal is filed by the appellant aggrieved by the

judgment dated 07.11.2017, in S.C.No.256 of 2012, on the file

of Metropolitan Sessions Judge, Asifabad. The appellant was

convicted for the offence under Section 302 of IPC.

2. Heard learned counsel for the appellants and Sri Arun

Kumar Dodla, learned Additional Public Prosecutor for

respondent-State.

3. Briefly, the case of the prosecution is that P.W.6 took the

appellant to the police station and gave statement to the Police

alleging that the appellant killed the deceased. The statement

of P.W.6 was taken down in writing, which is Ex.P.2. However,

P.W.6 turned hostile to the prosecution case, during trial.

4. After the appellant was taken to the police station around

9:15 p.m. on 02.06.2012, P.W.14, who is the Investigating

Officer, examined P.W.6. He also recorded the statement of one

B.Srinivas Reddy (not examined). In the night, he secured the

presence of P.W.8 and P.W.10 and interrogated the appellant in

their presence. The appellant confessed about committing the

murder of the deceased and informed that the dead body was

buried in Godavari River. The appellant also informed that he

kept the gold pustela thadu of the deceased in the auto, which

was used to carry the dead body, and took the Police to the

auto to show the pustela thadu. The auto and pustela

thadu/M.O.2 were seized. Since it was late in the night, P.W.14

informed P.W.1 and asked him to come to Godavari River, near

Erraipet. Ex.P.7, which is confession panchnama, was

recorded on 02.06.2012, at 10 p.m., in the presence of P.W.8

and P.W.10.

5. P.W.14 asked P.Ws.3 and 5 to come to Godavari River.

There, in the presence of P.W.3 (VRA), P.W.5 (VRA), P.W.8 and

P.W.10 (independent witnesses), P.W.11/Tahsildar and

P.W.14/Inspector of Police, the appellant pointed out the place

where the dead body was present. According to the prosecution

case, the body was buried 3 feet under the sand. P.Ws.3 and 5,

along with appellant, dug out the dead body and the body was

identified as that of the deceased. Panchanama/Ex.P.8 was

prepared at the scene, i.e., on 03.06.2012, at 9 a.m.

6. The body was sent for post mortem examination. The

post mortem was done by P.W.12/autopsy Doctor. According

to him, the death must have taken place 36-42 hours prior to

autopsy, and death was on account of pressure over the neck

caused by ligature strangulation. Ex.P.10 is post mortem

certificate. In the examination, P.W.12 denied the suggestion

that the dead body was not in a putrefied condition and not fit

for autopsy.

7. During investigation it was revealed that, the deceased,

who is the wife of P.W.1, eloped with the appellant, by taking

gold and Rs.63,000/- cash from the house of P.W.1. P.W.4 is

the house owner, in whose house, the appellant and the

deceased stayed together for nearly 20 days. After two or three

days, the deceased and the appellant left the house, and

thereafter, P.W.4 came to know about the death of the

deceased. P.W.9, who belongs to the same village, was

examined to state that both appellant and the deceased were

found together and on the same night, P.W.1 informed P.W.9

that he kept Rs.1,00,000/- in his house, which he got by the

sale of cotton. However, the amount was not found in the

house and the P.W.1's deceased wife also left the house.

8. On the basis of circumstantial evidence, the appellant was

arrested and produced before the concerned Magistrate. Charge

sheet was laid under Section 302 of IPC, after investigation was

concluded.

9. Learned Sessions Judge found that it was the appellant,

who had committed the murder of the deceased and

accordingly, convicted him.

10. Learned counsel appearing for the appellant would submit

that identification of the dead body was not established. The

independent witnesses/P.W.8 and P.W.10 to the confession and

pointing out the dead body on the next day of arrest of

appellant, have turned hostile. According to the prosecution,

the accused was identified at the instance of P.W.6, who

brought the appellant and handed over the appellant to P.W.14.

However, P.W.6 also turned hostile to the prosecution case. In

the back ground of non-examination of one Srinivas Reddy,

who went along with P.W.6 on 02.06.2012, to Police Station,

and hostility of independent witnesses, P.W.8 and P.W.10,

coupled with the fact that the dead body was not identified by

the husband/P.W.1, the question of conviction on the basis of

circumstantial evidence, is improper.

11. Learned counsel relied on the judgment of the Hon'ble

Supreme Court in Kuldip Singh and Another v. State of

Punjab 1. In the said judgment, the Hon'ble Supreme Court

was dealing with a situation where there were contradictions in

between the versions of the witnesses and the date of arrest

was also doubtful. The relevant paragraph reads as under:-

"On the other hand, we have the evidence of PW-12, the Investigating Officer. He has stated that he had searched for the accused on 19.02.1994 but they could not be traced. On 20.02.1994 also he searched for them but they could not be found.

On that day Sarpanch of the village came to the place of occurrence and gave a statement before him under Section 161 Cr. P.C. On the following day, i.e. 21.02.1994, when he along with other police officials was present on the bridge of the canal, the Sarpanch, namely, Buta Singh produced the three accused before him. It would thus appear that according to the Investigating Officer the statement of Buta Singh was recorded on 20.02.1994.

On the following day, he produced the accused before him. There is obvious inconsistency in the testimony of these two witnesses.

The case of the prosecution as put forth before the Court is that the accused were produced by Buta Singh, PW-8 before the Investigating Officer, PW-12 on 21.02.1994. The question is as to when the accused confessed their guilt before Buta Singh, PW-8.

(2002) 6 SCC 757

If Buta Singh is to be believed, the accused confessed their guilt before him on the same day on which he produced them before the police. According to him, the accused were waiting in his house while he went to meet the police officer.

He categorically denies having made any earlier statement before the police on 20.02.1994.

On the other hand, according to the Investigating Officer, PW-12, Buta Singh had made statement before him on 20.02.1994 and had thereafter produced the accused before him on 21.02.1994. The evidence of these two witnesses gives rise to a lot of uncertainty as to whether the confessions were made on 20.02.1994 or on 21.02.1994 and also whether the accused were taken into custody on 20th or 21st February, 1994. If it is believed that Buta Singh had produced the accused before the police on the same date on which he made a statement before the Investigating Officer, then it must follow that the accused were taken into custody on 20.02.1994. If the confessions were made by them on 21.02.1994 while in custody, they will be inadmissible in evidence. At the same time there is considerable doubt as to whether the confessions were made before Buta Singh on 20.02.1994. As it is, an extra judicial confession, is considered to be a weak type of evidence. In the instant case such extra judicial confession is said to have been made before a witness who stands thoroughly discredited in his cross examination. He has resiled from the version disclosed by him in the course of investigation and recorded under Section 161 Cr. P.C. His evidence does not inspire confidence. In addition, his evidence read together with the evidence of PW-12 creates

considerable doubt as to whether the accused confessed their guilt before Buta Singh, PW-8 on 20.02.1994 or 21.02.1994.

Counsel for the appellants drew our attention to Ex. PC, which was the requisition sent by the Investigating Officer to the Sub Divisional Magistrate, Zira requesting him to get the body exhumed. His letter states that the accused had admitted having committed the murder of Kuldip Kaur. The Investigating Officer in the course of his cross examination has admitted that the date written on the said requisition was 20.02.1994 but the same has been struck off and in its place the date 21.02.1994 has been written. In normal course we would not attach much significance to such correction being made, but having regard to the evidence on record this correction of the date on Ex. PC acquires significance. Having regard to the evidence on record, we are satisfied that the evidence adduced by the prosecution to establish the fact that the appellants had confessed before Buta Singh on 21.02.1994 is inconsistent and does not inspire confidence. The prosecution, therefore, has failed to establish the first circumstance in the circumstantial chain."

12. On the other hand, learned Public Prosecutor submits

that the recovery of dead body was mentioned by P.Ws.3, 5, 8,

10, 11, and 14. There are witnesses, who spoke about the

appellant and the deceased going together. For the said reason,

when the dead body was found at the instance of the appellant,

it can be safely inferred that it was the appellant, who had

committed murder of the deceased.

13. The prosecution relied on the following circumstances:

1. Missing of the deceased on 01.06.2012.

2. The appellant and the deceased staying together in the house of P.W.4.

3. The arrest of the appellant on 02.06.2012 (P.W.6 turned hostile.)

4. The confession of the appellant on 02.06.2012 at 10 p.m. vide Ex.P.7 and seizure of auto and M.O.2/pustela thade.

5. Pointing out the dead body on 03.06.2012 at 9 a.m. in the presence of P.W.8 and other witnesses.

14. The crucial evidence that has to be determined is whether

the hostility of P.W.6, and P.Ws.8 and 10 partially turning

hostile to the prosecution case, will have any effect on the

prosecution case.

15. PW.8 stated that he went to Godavari River, Erraipet

around 9 a.m., and there he saw the appellant in the custody of

the Police. The appellant informed the Sub Inspector of Police

that he buried the dead body of the deceased in the sand of the

river. The appellant also showed the place where it was buried.

Then, the said place was dug and dead body was found. P.W.8

further stated that he signed the inquest report and other

documents. P.W.8 was declared hostile to the prosecution case.

16. P.W.10 stated that he went to the police station, where

the appellant was interrogated in his presence and also P.W.8

was present. The Police recorded Ex.P.7/confession

panchnama. Then the appellant took the Police and others to

Erraipet, Godavari River area, where the appellant had shown

the place where the dead body was buried. When the said place

was dug, the dead body was found. The police prepared

inquest report, which is Ex.P.8.

17. P.W.3 (VRA), P.W.5 (VRA), P.W.10 (MRO), and P.W.11

(Tahsildar) were requested to be present at Godavari River on

03.06.2012. According to P.Ws.3, 6, and 11, the appellant had

shown the place stating that he had buried the dead body

there. At the instance of the appellant, P.Ws.3 and 5 dug the

place 3ft below the surface of the river bed, and found the dead

body.

18. P.W.14, who is the Investigating Officer, was also present.

The hostility of P.W.8, in the present circumstances, is of no

consequence. Since P.Ws.3, 5, and 11, who are independent

witnesses and responsible Government servants, were present

when the place where the dead body was buried was shown by

the appellant. Under Section 27 of the Indian Evidence Act,

any fact that is discovered pursuant to a confession would be

admissible. Record does not reveal that the place, where the

dead body was found and dug at the instance of the appellant,

was known to anyone else or that anyone other than the

appellant had knowledge about the place of burial. Pointing

out the place on 03.06.2012, i.e., next day of arrest of the

appellant, and hostility of P.Ws.8 and 10, is of no consequence,

and said hostility cannot form basis to disbelieve the evidence

of P.Ws.3, 5, 11, and 14. The Investigating Officer explained

that they did not go to the river on 02.06.2012, since it was late

in the night. Though the appellant confessed on 02.06.2012,

about the dead body being buried in the Godavari river area,

that does not mean that anyone had the knowledge about the

exact location where the body was buried. The Police Officer

only knew that the dead body was in the Godavari river area,

but the exact location of the body was known only after the

appellant pointed it out. Admittedly, Godavari river area is a

very large area.

19. In fact, P.Ws.8 and 10 supported the case of the

prosecution to an extent of there being a panch at the scene

and body being found at the instance of the appellant. Post

mortem Doctor conducted autopsy and gave opinion that the

death was homicidal on account of manual strangulation.

20. The case is one of circumstantial evidence. The Hon'ble

Supreme Court in Sharad Birdhichand Sarda v. State of

Maharashtra 2, laid principles regarding the acceptance and the

basis to record conviction, in cases of circumstantial evidence,

which read as under:-

"1. the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

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 explained 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."

21. The circumstances relied on by the prosecution dehors

the hostility of P.W.6, who has taken the appellant to the police

station, is convincing and the circumstances make out a case,

(1984) 4 SCC 116

which undoubtedly points towards the appellant as the

perpetrator of the crime.

22. Accordingly, the Criminal Appeal is dismissed. Since the

appellant is on bail, he shall be summoned by the concerned

Court and sent to prison to serve out the reaming part of the

sentence.

_________________ K.SURENDER, J

___________________ J. ANIL KUMAR, J