Telangana High Court

Shamsheer Khan , Shammu vs State Of Telangana on 6 March, 2025

                                1




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


             CRIMINAL APPEAL No.825 OF 2018
JUDGMENT:

(per Hon'ble Sri Justice K.Surender)

1. This appeal is filed by the appellant/accused, aggrieved

by the judgment, dated 05.01.2018, in Spl.S.C.No.01 of 2015,

passed by the learned Spl.Judge For Trial of Cases Under

SCs/STs (POA) Act-cum-V Additional District and Sessions

Judge, at Adilabad, convicting the appellant/accused for the

offence under Section 302 of IPC and sentencing him to

undergo life imprisonment.

2. Heard Mr. C.Damodar Reddy, learned Senior Counsel

for the appellant, and Mr. Dodla Arun Kumar, learned

Additional Public Prosecutor appearing on behalf of

respondent-State.

3. The case of the prosecution is that PW1, who is the

father of the deceased-Karthik, went to the Police Station and

lodged complaint Ex.P1. In the said complaint, he narrated

that, on 20.02.2014, PW5, namely Mekala Kishan, informed

PW1 on phone that some identified person hacked the

deceased at Lorry Chowrasta, Sirpur Kagaznagar, and fled

from the scene. The body was shifted to Vijaya hospital,

Kaghaznagar. PW1 then went to Vijaya hospital and by the

time he reached the hospital, the deceased was found dead.

The said Ex.P1 was lodged at 04:00 P.M. on 20.02.2014.

4. The complaint was registered, and PW20-Inspector of

Police took up investigation. He went to the scene of offence

and photographed the scene in the presence of PWs.9 and 11.

The next day, inquest proceedings were concluded in the

presence of PWs.12 and 13. The body was then sent for

autopsy. PW16 conducted autopsy and found the following

injuries:

"1. Lacerated wound measuring 4x2 inches at the nape of the neck

2. Lacerated wound measuring 4x1 just above the left ear

3. Three lacerations measuring 4x1x3 cm over left wrist region. The blood vessels at the lower waist are found severed.

4. Exploration of skull, a subdural haemotoma found in frontal region. This might be contracoup injury."

5. According to PW16, the death was on account of head

injury leading to heamorrhagic shock. Ex.P7 is the post

mortem report.

6. The accused was arrested on 22.02.2014, at 07.30 A.M.

at the Railway Station, Kagaznagar. He was interrogated in

the presence of PWs.14 and 17 (independent witnesses), and

consequent to his confession, MOs.9 and 10, which are, a

shirt and a pair of pants of the appellant worn during the

incident, were seized. Further, MO.8, i.e., blood stained knife

was seized under the cover of panchanama.

7. Having completed the investigation, charge sheet was

laid against the appellant for the offences punishable under

Section 302 of IPC and Section 3(2)(v) of SCs/STs (POA) Act,

1989.

8. The learned Sessions Judge mainly placed reliance on

the evidence of PWs.6 and 7 and convicted the appellant. The

evidence of PW5, namely Kishan, whose name was mentioned

in the Ex.P1 complaint, was disbelieved on account of the

statement made before the Magistrate under Section 164 of

Cr.P.C. PW5 stated that he does not know who murdered the

deceased. The said statement made before the Magistrate was

marked as Ex.D1.

9. Learned Senior Counsel for the appellant would submit

that -

1. The injuries found on the dead body are not tallying

with the eye witness account. Though there is no

mention of any head injury being caused, however, the

death occurred on account of head injury.

2. No Test Identification Parade was conducted and

admittedly, the appellant was a stranger to PW5. Both

PWs.6 and 7 stated that they know the appellant, who

is working as an auto driver.

3. The complaint was filed at 04:00 P.M. on 20.02.2014,

however, the complaint reached the Magistrate on the

next day, i.e., 21.02.2014, at 10:30 A.M. There is an

unexplained delay of 16 ½ hours.

10. On the other hand, learned Additional Public

Prosecutor would submit that the evidence of PWs.6 and 7,

who are having push carts in the said area, where the

incident happened, have deposed about the incident. In fact,

it was also stated that appellant was known to them,

therefore, their evidence cannot be disbelieved.

11. According to PW1, i.e., complainant and father of the

deceased, it was PW5, who informed him about the incident

that the appellant attacked the deceased with the knife used

for chopping coconuts. PW5 in his evidence stated that he

saw the appellant hacking the deceased. However, in his

cross-examination, PW5 admitted that he does not have any

shop in the place, where the incident happened, and he did

not have any work in the place at the time of the incident. He

is a chance witness and his presence at the scene is doubtful.

Moreover, in the statement made under Section 164 Cr.P.C.,

which was marked as Ex.D1, PW5 denied knowledge of the

incident itself.

12. The other witnesses are PWs.6 and 7. PW6 stated that

he does not know who the deceased is, however, he knows

the accused. According to him, he was running a chat

business on push cart since 10 years. On 20.02.2014, PW5

did not set up his business on the road, and he was present

along with PW7. While, PW7 was going to attend the natures

call, he asked PW5 to look after his coconut push cart. At

that time, the incident happened. The appellant, who was

present at the side of coconut cart, hacked the left hand of

the deceased with the coconut chopping knife, and then the

deceased fell down. Meanwhile, a call was made to 108

ambulance, and thereafter, the deceased was shifted to

Sirpur hospital in the ambulance. In the cross-examination,

PW6 stated that he used to prepare mirchi bajji at the place

and that he was busy most of the time.

13. PW7 also stated about asking PW5 to stay near his

coconut push cart, and seeing the appellant hacking the

deceased with the chopping knife, which was taken from his

cart. The appellant hacked the left side of the neck of the

deceased and blood was oozing. Thereafter, PW7 left the

place. However, in his cross-examination, he admitted that he

was not present when the incident happened and he did not

see what happened. In view of the admission of PW7 in his

cross-examination, his evidence cannot be believed. PW6 is

the only witness who speaks about the incident. PW6 was

examined by PW20 on the day of the incident. However, the

name of PW6 is not reflected in the inquest proceedings, as

an eye witness to the incident. The inquest proceedings were

concluded in the hospital. Though, PW1 stated that he

enquired about the incident, however, the name of PW6 as an

eye witness was not mentioned in the complaint that was

filed by him.

14. The complaint was lodged at 04:00 P.M. on 20.02.2014,

however, the complaint reached the Court only on the next

day, i.e., 21.02.2014, at 10:30 A.M., with a delay of nearly 16

½ hours. The said delay was not explained by the

Investigating Officer.

15. The Hon'ble Supreme Court in Periyasamy v. State

Rep. by the Inspector of Police 1, held as follows:

2024 LiveLaw (SC) 244

"The delay therefore renders the circumstances questionable. Also, as we have alluded to earlier, there is a significant gap in the examination of PW2 as well. For all the aforesaid reasons, it cannot be said that the prosecution had succeeded in establishing its case against the two accused persons beyond reasonable doubt warranting a conviction under Section 302 IPC."

16. The Hon'ble Supreme Court, in Periyasamy's case

(supra), also held as follows:

"Various lapses such as these cumulatively affect the overall sanctity of the prosecution case, making it fall short of the threshold of beyond reasonable doubt. It is in such circumstances, on analysis of the record, that we are unable to sustain the conviction handed down by the Courts below to A-1 and A-2. The injured witnesses and the Investigation Officer in their testimony together are not inspiring confidence, and in our own estimation the prosecution case stands shaken beyond a point to which no conviction resting thereupon can be said to be just in the eyes of law.

We sustain the challenge on the grounds, among others that, (a) examined private persons were interested witnesses, with inconsistencies amongst them; (b) no independent witnesses were examine; (c) there was a delay in filing the FIR; (d) there were interpolations on record; (e) there were numerous lapses in the investigation; and (f) the medical and scientific evidence on record does not support the prosecution's version of events."

17. PW6 speaks about the assault by the appellant on the

left hand of the deceased with the chopping knife. There is no

mention about any injury on the head. According to post

mortem Doctor, the fatal injury was injury No.4, which is an

injury to the skull.

18. The Hon'ble Supreme Court, in Krishnegowda and

others v. State of Karnataka by Arkalgud Police 2, held as

follows:

"Medical Evidence: When we look at the medical evidence, the Doctor (PW10) has categorically stated that the weapons were not sent to her. In the chief examination, it was stated that the injuries 1&4 on the body of the deceased are possible with chopper and club. But in the cross examination it was deposed that even if a person falls on a sharp object these injuries could happen. According to PW3, the deceased fell into the drain."

19. As already discussed, the name of PW6 is not

mentioned in the complaint, which was sent to the Court with

a delay, nor was his name mentioned during the inquest

proceedings. The ocular evidence of PW6 is contrary to the

medical evidence. PW6 did not state anything about the

attack on the head or the neck of the deceased. Injuries

Nos.1, 2, and 4 are on the neck, skull, and above left ear.

Lacerations were found on the left wrist region of the

deceased. Not mentioning the manner in which the deceased

was attacked, coupled with the other circumstances as

discussed above, makes the evidence of PW6 doubtful.

20. In a case, all the circumstances and the events