Telangana High Court
Pallapu Mallesh, Jagtial Dt And 2 Otrs., vs The State Of Telangana, Rep Pp., on 23 January, 2025
1
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR
CRIMINAL APPEAL No.49 OF 2017
JUDGMENT:
(per Hon'ble Sri Justice K.Surender)
1. This appeal is filed by the appellants/accused,
aggrieved by the judgment dated 08.12.2016 in S.C.No.190 of
2015, passed by the learned II Additional Sessions Judge,
Karimnagar at Jagtial, convicting the appellants/accused for
the offence under Section 302 r/w 34 of IPC and sentencing
them to undergo life imprisonment.
2. Heard Mr. C.Damodar Reddy, learned Senior Counsel
representing Mr. C.Ruthwik Reddy, learned counsel for
appellants and Mr. Dodla Arun Kumar, learned Additional
Public Prosecutor appearing on behalf of respondent-State.
3. An application was filed by the counsel for accused
No.3 on the ground that the accused No.3 was a Juvenile
when the incident occurred. In support of the claim,
certificate issued by the concerned Head Master of MPPS
School, Maddunoor Mandal, Jagtial District was filed. The
said certificate reflects the date as 15.05.1998. We have
asked the concerned School Head Master to be present in the
Court along with Register of Admissions to verify correctness
of the issuance of certificate. Head Master of the School
appeared before this Court on 02.01.2025. His appearance
was recorded and he has produced original record which is
Register of Admissions. Having noted that the date of birth in
the said Register was recorded as 15.05.1998, this Court
returned the said Register to the Head Master.
4. Briefly, the case of the prosecution is that on
04.10.2012, accused Nos.1 to 3 chased the deceased namely
Buchaiah who was the husband of PW1, and maternal uncle
of the eye witness/PW4. The deceased was chased in the SC
colony from the house of Gajjela Nagamallu and he was killed
near the house of Madasu Kalavati. PW4 immediately gave
information about the attack to PW1/wife of the deceased.
PWs.1, 2 and others went near the body, thereafter, Telugu
written complaint was filed at 00:15 hours on 05.10.2012.
5. The motive for the alleged assault on the deceased was
a rumor that the deceased was having illicit intimacy with
wife of accused No.1. The said rumour resulted in suspicion
and accused Nos.1 to 3 came together to attack the deceased
late at night on 04.10.2012.
6. PW21 received the complaint at Maddunoor police
station. He registered FIR and sent copies immediately to the
concerned authorities, including the Judicial Magistrate of
First Class. Investigation was handed over to PW23, Inspector
of Police. PW23 went to the scene of offence at 05.30 A.M. on
05.10.2012 and conducted scene of offence panchanama and
blood stained controlled earth was seized from the scene of
offence. One scooter which belongs to deceased was also
found at the scene.
7. Inspector examined and recorded the statements of
PWs.5, 6, 9 and 11 to 16. On 23.10.2012 at 06.30 A.M.,
PW23, with the assistance of Police personnel, apprehended
accused Nos.1 to 3 and confession of accused Nos.1 to 3 was
recorded. Pursuant to their confession and at the instance of
accused, MOs.7, 8 and 9 which are sticks allegedly used in
assaulting the accused were recovered. 164 Cr.P.C.
statements of PW4 and other witnesses were recorded.
Having concluded investigation, charge sheet was lodged
against the three appellants.
8. The entire evidence rests on the statement made by
PW4, who is an eye witness to the incident. Deceased is the
maternal uncle of PW4. The other eye witnesses i.e., PW5 and
PW6 turned hostile to the prosecution, however, they
mentioned about the presence of PW4 at the scene of offence.
In the complaint/Ex.P1 which was filed by PW1, the name of
PW4 was mentioned. Learned Sessions Judge was convinced
that the appellants had beaten the deceased to death, on the
basis of the eye witness account of PW4.
9. Learned Senior Counsel appearing on behalf of
appellants would submit that though solitary testimony of eye
witness can form basis for conviction, however, the said eye
witness account should be reliable and trustworthy. PW4 was
planted at a subsequent date. Though the incident happened
at 09.30 P.M., the complaint was filed at 00:15 hours with a
delay of three hours.
9.1. In the cross examination, PW4 admitted that by the
time, he went to the scene, the deceased was already found
dead.
9.2. The complaint reached the Magistrate at around 11.15
A.M., as such, it can be safely inferred that after due
deliberations amongst themselves, PW4 was shown as eye
witness to the incident, though he was not present.
9.3. Learned Senior Counsel relied on the judgment of the
Hon'ble Supreme Court in Amar Singh v. the State (NCT of
Delhi) 1, wherein, the Hon'ble Supreme Court, while dealing
with similar circumstances of solitary testimony of eye
witness, on the basis of contradictions found in the said case,
extended benefit of doubt to the accused. Learned Senior
Counsel also relied on the judgment of the Hon'ble Supreme
Court in Periyasamy v. the State 2. In the said case, the
Hon'ble Supreme Court found that when no independent
witnesses were examined, it is not fatal. However, the eye
witness was found to be interested in the case, as such, the
Hon'ble Supreme Court allowed the appeals and set aside the
conviction.
9.4. Learned Senior Counsel finally relied on the judgment
of Hon'ble Supreme Court in Khema @ Khem Chandra, etc.
v. State of Uttar Pradesh 3, wherein, it is held as follows:
"This Court, in the celebrated case of Vadivelu Thevar v.
State of Madras 4, has observed thus:
"......Hence, in our opinion, it is a sound and
well-established rule of law that the court is concerned
with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact.
2024 live law SC 244
Crl.A.Nos.1200-1202 of 2022
5 (1957) SCR 981
Generally speaking, oral testimony in this context may
be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should
have no difficulty in coming to its conclusion either
way - it may convict or may acquit on the testimony of
a single witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or
subornation. In the second category, the court equally
has no difficulty in coming to its conclusion. It is in the
third category of cases, that the court has to be
circumspect and has to look for corroboration in
material particulars by reliable testimony, direct or
circumstantial......."
10. Learned Senior Counsel argued that blood stained earth
which was collected at the scene by PW23, while conducting
scene of offence panchanama was sent for FSL. However, FSL
report does not reflect that the soil contained human blood.
Further, 164 Cr.P.C. statement of PW4 given to Magistrate is
silent about involvement of accused No.1. The said statement
made before the Magistrate is contrary to the version given by
PW4 in the complaint.
11. Learned Public Prosecutor opposing the argument of
learned Senior Counsel for appellants, submitted that the
name of PW4 was mentioned in the FIR, which was registered
at the earliest point of time. Only on account of PW4 being
related, it would not mean that he was planted after due
deliberations. In fact, house of PW4 was also shown in the
sketch and according to the prosecution version, the
deceased was chased nearby from the place near the house of
PW4, till the place where the dead body was found beside the
house of PW6. Minor contradictions during the course of
examination of the witnesses, will be of no consequence,
since the testimony of PW4 is reliable and truthful.
12. The crucial witness is PW4. It has to be looked into
whether his testimony inspires confidence and his solitary
testimony can be relied on to sustain conviction.
13. The two eye witnesses, PWs.5 and 6, turned hostile to
the prosecution. The other witnesses, PWs.11 to 16 have all
resiled from their earlier statements and were declared hostile
to the prosecution. The panch witnesses for confession and
recovery panchanama were also declared hostile to the
prosecution case, since they did not support the confession of
accused and the subsequent seizure at the instance of
accused.
14. According to PW23, CI of Police, he went to the scene of
offence for the first time on 05.10.2012 at 05.30 A.M. The
complaint was received by PW21 at 00:15 hours. According to
PW4, the body of the deceased was shifted from the village to
the hospital at 00:30 hours. However, PW4 stated in his cross
examination "within half an hour after the incident the Police
arrived to the spot. SI, CI and two constables came to the place
of incident." Similarly, PW3 stated that "100 people gathered
at the time of our visit to the place of incident. By 10.00 P.M.,
Police came to the place of incident. I cannot say the Police
personnel designation who came to the place of incident".
15. The said version given by PWs.3 and 4 regarding the
arrival of Police to the scene of offence was contradicted by
PW23 who stated that he visited the scene at 05.30 A.M., on
05.10.2012. The witnesses PWs.3 and 4 were not examined
by the Public Prosecutor regarding their admission about
presence of the Police at the scene at 10.00 P.M. on the said
day. PW4 further stated that he himself wrote the report,
however, Police obtained signature of PW1 on Ex.P1 at
Maddunur Village. The said version of PW4 preparing the
complaint is contradicted by the evidence of PW21, who
stated that Telugu written complaint was signed and filed in
the Police Station at 00:15 hours.
16. Though complaint was filed at 00:15 hours with the
delay of 2 hours 45 minutes, it is not explained as to why the
FIR reached the Court at 11:30 A.M., on 05.10.2012, when
PW21 specifically stated that he immediately dispatched the
FIR to the concerned Court and concerned officials.
17. In the absence of any reasons given regarding the delay
in lodging the complaint and also delay in complaint reaching
the Court, as rightly argued by the learned Senior Counsel,
there arises any amount of doubt regarding the actual
happening and projection of the prosecution case, being
correct. There is no reason why the complaint was lodged in
the Police Station when Police were already present at the
scene at 10:00 P.M. The said discrepancy is not explained by
the prosecution. In the said circumstances, the logical
conclusion is that the actual happening has been suppressed
by the prosecution and after due deliberations, the name of
PW4 was stated in the complaint and the incident was
narrated in the complaint.
18. In the evidence of PW4, he stated that on 04.10.2012,
at around 09:30 P.M., he was attending to a project work of
the private school in his house. When he heard someone
shouting "sister, sister", he went out and saw that accused
Nos.1 to 3 were chasing his uncle Buchaiah (deceased). PW4
followed the accused till the house of PW6, where the
deceased was allegedly attacked. However, PW4 did not
intervene. Contrary to his version in the chief examination,
PW4 stated that incident occurred at 09:30 P.M. which was at
night and by the time he reached Nagamma's house, his
maternal uncle Buchaiah died and his corpse was lying on
the ground. If at all, PW4 had followed the accused when they
were chasing Buchaiah, the admission of PW4 that by the
time he went to the scene, he found the corpse lying on the
ground, contradicts his own version in the chief examination.
19. In view of the discrepancies found in the case, it can be
safely inferred that actual version is suppressed by the
prosecution and subsequently, the witnesses have come up
with a false version, implicating the accused and also
showing PW4 as an eye witness to the incident. As already
discussed, PW4 in his 164 Cr.P.C statement did not speak
about involvement of accused No.1, which again contradicts
his earliest version. PW4 is wholly unreliable. For the said
reasons, benefit of doubt is extended to the appellants.
20. In view of the findings that the prosecution failed to
prove its case against the appellants, no findings are
necessary in the petition filed by accused No.3 to decide
about his juvenility.
21. Accordingly, criminal appeal is allowed.
_________________
K.SURENDER, J
___________________
J. ANIL KUMAR, J
Date: 23.01.2025
plp
