Mohd Khasim vs The State Of Telangana.,Rep.,Pp
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Telangana High Court

Mohd Khasim vs The State Of Telangana.,Rep.,Pp on 27 February, 2025

          THE HONOURABLE SRI JUSTICE K.SURENDER
                                 AND
     THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI
                CRIMINAL APPEAL No.865 OF 2017

JUDGMENT:

(per The Hon'ble Sri Justice K.SURENDER)

The appellant was convicted under Sections 302 and 379 of the

Indian Penal Code, and sentenced to undergo Life Imprisonment and

to pay a fine of Rs.1,000/- for the offence under section 302 of IPC; to

undergo rigorous Imprisonment for a period of three years for the

offence under section 379 of IPC.

2. Briefly, the facts of the case are that the appellant is the nephew

of deceased No.1 (D1). Deceased No.2 (D2) is the daughter of D1. They

hail from Karkonda village of Nawabpet Mandal. On 08.10.2013, D2

came to Karkonda from Hyderabad. On 12.10.2013, in the morning,

at about 8.00 hours, D1 and D2 left Karkonda village, along with the

she buffalo of D1, and they went to Kaurampet market cattle sandy in

Mahindra Auto Trolley bearing No.AP 22 TA 2488, belonging to LW.9-

Khaja Pasha (not examined). D1 sold the she buffalo for Rs.21,000/-

in the market, at about 16.30 hours. D1 and D2 came to Khanapur in

a passenger auto and went to the Toddy shop of PW.7. At that shop,

the appellant asked D1 to give Rs.10,000/- as hand loan, as his wife

was carrying a pregnancy, for which D1 refused. Then appellant

picked up a quarrel with D1, and D1 and D2 left for Karkonda village

on foot. The appellant bore grudge against D1, and hatched a plan to

kill him, and also to commit theft of cash of Rs.21,000/- and cell

phone. The appellant went to his house and collected an axe. He saw

D1 and D2 at the outskirts of Karkonda village. The appellant

attacked D1 from his back and hacked on his neck, due to which D1

fell down. Subsequently, he hacked D2 on her neck with the axe, and

she too fell down. Again he assaulted D1 and D2 with the axe and

caused injuries on neck, head, and other parts of the body, due to

which D1 and D2 died, instantaneously. The appellant committed

theft of cash of Rs.21,000/- from D1. He also committed theft of cell

phone from D2, and decamped with booty.

3. The complaint was filed by PW.1, who is the VRO of Nawabpet.

The complaint is dated 12.10.2013, however, PW.1 turned hostile to

the prosecution case. In the cross-examination, he stated in the

complaint it is mentioned that on 12.10.2013, in the morning, both

the deceased D1 & D2 and the appellant went to Kourampet in an

Auto Trolley to sell a buffalo. On the same night, while returning, they

quarreled and the appellant attacked them with an axe.

4. PW.2 is the son of deceased No.1-Maibali and brother of 2nd

deceased-Shaheen Begum. The appellant is related to PW.2 as the

paternal aunt's son. He stated that he found the dead bodies of both

the deceased. In the cross-examination, PW.2 admitted that there

were disputes between him, his sisters, aunt, and his father in

respect of the property. He admitted that the deceased received

Rs.21,000/- towards sale proceeds of buffalo. However, the details of

the amount that was with the deceased are not known.

5. PW.3 is the sister-in-law of the deceased No.1. According to her,

on the date of the incident, both the deceased and the appellant went

to Toddy shop, consumed Toddy and left. Thereafter, she came to

know around 7.00 P.M., that both the deceased died. The witnesses

were examined to depose that, hours prior to the death of the

deceased, both the deceased and the appellant were found together,

consuming Toddy.

6. PW.4 is the daughter of D1's brother. According to her, on the

day of the incident, the deceased No.2 informed her that the she

buffalo was sold for Rs.21,000/- and that she was returning home.

PW.4 admitted in her cross-examination that there were disputes in

between the relatives, which were in relation to sale of land.

7. PWs.5 to 12 turned hostile to the prosecution case.

8. PW.13 is the VRO, who acted as Panch to the scene of offence

panchanama, inquest panchanama, and seizure of the clothes of the

deceased. PW.13 is also witness to the seizure of Axe-M.O.3 at the

instance of appellant on 15.10.2013. Further, PW.13 stated that an

amount of Rs.17,700/- was also seized at appellant's instance.

9. PW.14 is also the VRO, who was present along with PW.13, on

the date of seizure of Axe and cash.

10. PW.15 is the Postmortem doctor, who found the following

injuries on D1:

"1. Laceration of left side of neck 12x5x4 c.m.

2. Laceration back of left side neck 8x2x1 c.m.

3. Laceration on right of neck just below mandible 4x2x1 c.m

4. Laceration above right ear, about 1x1/2x1/2 c.m

5. Abrasion left outer canthus of eye, 2 x 2 c.m.

6. Abrasion left side forehead, 3 x 3 c.m

7. Laceration 2 c.m below right mandible about 4x1x1 c.m"

11. Injuries on D2:

"1. Laceration the neck anterior part, 8x4x3, cutting through right steruocleidomartaid tendon, trachea, large vessels, Oesoplagus intact:

2. Laceration below right mandible, 2 x 1 x 1/2 c.m.

3. Laceration on neck right side little posteriorly 6x 3x3 c.m

4. Laceration neck left side posteriorly 6x4x2 c.m."

12. In his cross-examination, PW.15 admitted that he did not

observe any smell of Toddy during postmortem examination. However,

he found semi-digested food in the stomach.

13. The basis of identifying the appellant as accused, is the alleged

confession of appellant made to PW.11. According to the

Investigating Officer-PW.17, PW.11 took the appellant to the police

station on 14.10.2013, at about 10.30 a.m, and informed that the

appellant had confessed to him that he committed the murder of D1

& D2. However, PW.11 has turned hostile to the prosecution case,

and did not support the version that he had taken the appellant to

the police station.

14. The entire evidence of the prosecution rests on the

circumstances of seizure of Axe and cash of Rs.17,700/-, at the

instance of the appellant. Further, PW.3's evidence is also significant

for the prosecution. According to PW.3, the appellant and both the

deceased went to Toddy shop and consumed toddy. When the

statement of PW.3 is viewed with the admission of postmortem doctor,

that there was no smell of Toddy during postmortem examination,

creates any amount of doubt arises in the version of PW.3, of having

seen the deceased and the appellant together in the toddy shop

consuming toddy. In fact, semi-digested food was found during

postmortem examination. Normally, semi-digested food would be

found if the deceased had consumed food approximately two hours

prior to the death. The prosecution has not come up with any

evidence to show that, two hours prior to the death, the deceased

consumed food. On the contrary, the evidence of PW.3 is that the

appellant and the deceased consumed toddy, which is negatived by

the evidence of the postmortem examination doctor.

15. The Honourable Supreme Court in Shankar v. State of

Maharashtra 1, held as follows;

2023 SCC OnLine SC 268

"In the decision of Prakash v. State of Rajasthan (2013) 4 SCC 668, this Court took note of the following principles laid down regarding the law relating circumstantial evidence in Sharad Birdhichand Sarda v. State of Maharashtra (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 [(1973) 2 SCC 793] where the following observations were made:

19. ......"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."

16. The seizure of Axe and cash is of no consequence, when it is not

proved by the prosecution that the deceased sold the buffalo for

Rs.21,000/-. There is no evidence on record to show that the

deceased received Rs.21,000/- on the day of incident. In the said

background, the seizure of Rs.17,700/- is of no significance and

cannot be treated as a circumstance which points towards the guilt of

the accused. Though, the axe was sent for FSL examination, the blood

stains found on the axe could not be determined, as per Ex.P22-FSL

report.

17. The circumstances relied on by the prosecution, insofar as last

seen evidence and seizures are concerned, cannot be made basis to

find the appellant guilty. As already discussed, the prosecution has

failed to prove beyond reasonable doubt that, the deceased and the

appellant consumed toddy and were seen together prior to the death.

In the said circumstances, benefit of doubt is extended to the

appellant/accused.

18. Accordingly, Criminal Appeal is allowed, setting aside the

conviction recorded by the Judge, Family Court, Mahabubnagar, in

SC.No.392 of 2014, dt.19.05.2016, and the appellant/accused is

acquitted. Since the appellant/accused is in jail, he shall be released,

forthwith, if not required in any other case.

__________________ K.SURENDER, J

__________________________ ANIL KUMAR JUKANTI, J Date: 27.02.2025 tk

THE HONOURABLE SRI JUSTICE K.SURENDER

AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

CRIMINAL APPEAL No.865 OF 2017 Date: 27.02.2025

tk