Telangana High Court
The State Of A.P., Rep By Pp., vs Abdul Sattar And Antoher, on 20 June, 2023
Author: P.Sree Sudha
Bench: K.Lakshman, P.Sree Sudha
THE HONOURABLE SRI JUSTICE K.LAKSHMAN
AND
THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRIMINAL APPEAL No.1073 of 2012
JUDGMENT:(per Hon'ble Smt. Justice P.Sree Sudha) This Criminal Appeal is filed by the State against the Judgment dated 13.09.2007 in S.C.No.301 of 2005 passed by the learned Special Judge for Trial of Offences under SC/ST(POA) Act - cum - V Additional District and Sessions Judge, Medak at Sangareddy.
2. The trial Court found the respondents/A.1 & A.2 not guilty for the offences punishable under Sections 302 & 379 of IPC and acquitted them under Section 235(1) of Cr.P.C. Against the said acquittal, State preferred the present Criminal Appeal and mainly contended that the trial Court ought to have considered the evidence of P.W.1, who has seen the deceased in the company of the accused and they are quarrelling with each other at the scene of offence and requested the Court to set aside the Judgment of the trial Court.
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3. The case of the prosecution is that the deceased K.Sharan Kumar, A.1 and A.2 are friends. On 20.10.2004, A.1 came to know that the deceased gained some money in Matka (Gambling) and as such he met the deceased near Rasheed Hotel and demanded to give money, but the deceased refused for the same and on that some altercation took place between them. Later, A.1 went away and informed the same to A.2. Thereafter, on the same day, A.1 and A.2 found the deceased near Zaheerabad Railway Station and took him in an Auto bearing No.AP-13U-2081 to the scene of offence through Municipal Office road to M.P.D office road. At the scene of offence, A.1 and A.2 beat the deceased with hands and tried to snatch away money, but when the deceased resisted, A.1 caught-hold the deceased firmly, while A.2 throttled him, as a result of which the deceased died. Thereafter, the accused took away the purse and wrist watch from the deceased and thrown the dead body into the bushes and fled away.
4. The prosecution examined P.Ws.1 to 22 and got marked Exs.P1 to P16 and M.Os.1 to 9 in support of its case.
5. P.W.3 is the resident of Railway Quarters at Zaheerabad. In his evidence stated that while he was going on his Scooter 3 from the back side of M.P.D office, he found some persons standing there and as such he stopped his scooter and found the dead body of Sharan Kumar in the garbage. Immediately, he informed the same to the brother of the deceased i.e., P.W.1.
6. P.W.1 gave complaint on 21.10.2004 and the same was marked under Ex.P1. In the said complaint, he stated that on 21.10.2004 at about 12:00 hours, one Mohan Reddy informed him over phone about the dead body of the deceased and immediately, he went to the scene of offence and found the dead body of his brother with injuries. He also stated that some un- known offenders might have killed him. He further stated that he came to know that on 20.10.2004, his brother after having tea at Mohammed Rasheed hotel, went away. The complaint was registered as Cr.No.223 of 2004 under Section 302 of IPC on the same day at about 13:00 hours.
7. The brother of the deceased - P.W.1 in his evidence stated that the deceased was in the habit of playing Matka (Gambling) and he was also drinking liquor. On 13.09.2004, the deceased came to his house and stayed with him till 20.09.2004 and left the house. Only when P.W.3 informed about the death of his brother, he went there and found his dead body and gave 4 complaint in the Police Station. In the Cross-examination, he stated that he did not express any suspicion or doubt against anybody about the death of his brother (deceased). So also, his father and other brothers did not express their suspicion. He further admitted that he has not mentioned about the missing of watch and purse from his brother in the complaint and M.Os.1 to 5 were marked through him.
8. P.W.5 stated that he has seen his brother 10 to 15 days prior to his death and he has no idea about the clothes and ornaments worn by him. P.W.6 is another brother of the deceased. He stated that he has seen the deceased about one month prior to the death of the deceased. He also stated about the vices of the deceased. This clearly shows that there was no cordial relationship between the deceased and his brothers. The father of the deceased P.W.2 stated that the deceased was working as a Motor Mechanic. Due to some matrimonial disputes, his wife deserted him and living at her parent's house along with children, from then onwards he was habituated to playing Matka and consuming alcohol. P.W.4 stated that on the previous day of death of the deceased, the deceased came to his hotel at about 8:30 to 9:00 PM and had a tea and left. On the next day, he came to know about the death of the deceased. He 5 also stated that there was a short cut road from MPD Office to Shantinagar.
9. The case of the prosecution is that there were circumstantial witnesses who have last seen the deceased along with the accused. P.W.7 in his evidence stated that while he was returning from Shantinagar after collecting rent, he had seen an auto with three persons i.e., A.1, A.2 and deceased and A.1 caught hold collar of the deceased and some quarrel was going on in between them, and as all of them are friends, he left the place without any interference. Later, on the next day, he went to Hyderabad and returned to Zaheerabad in the evening and came to know about the death of the deceased. He also went to the hospital and informed to the Police about the presence of A.1 and A.2 and quarrel among themselves in the last night. He further stated that he has seen the accused and deceased in the lights of the MPD office, but in the Cross- examination, he clearly stated that he did not know the particulars of the friends of the deceased and his companions and he did not know whether the deceased quarreled with anybody prior to his death. He did not know with whom the deceased moved closely prior to his death. He also stated that he could not say the name of the tenant with whom he collected 6 the rent. He further admitted that he has not stated before the Police that he has seen the accused from the lights of the MPD office. He clearly admitted that he has seen A.1, A.2 and deceased while they were quarrelling, but he has not made any efforts to separate them. Though he went to the hospital at about 5:30 PM, he has not informed to the Police that he has seen the accused and deceased near MPD Office. His statement was recorded in the Police Station. He further admitted that there are many Muslim families in Zaheerabad and there are many common names like Abdul Sattar and Shaik Saleem. He has not stated before the Police about the father names or residents or their ages and any other descriptive particulars of the accused and Police have not conducted the identification parade.
10. P.W.8 in his evidence stated that while he was taking Tea at about 2 P.M, A.1 was quarrelling with the deceased and demanding money, for which deceased refused to give amount and also the deceased abused A.1 in filthy language. After his death, on the next day, he informed to the Police about the quarrel between A.1 and the deceased, but he was working in automobile Company and he was on the day shift from 9:30 AM to 4:30 PM and he could not leave the company premises 7 without prior permission. Company will provide tea, snacks, break fast etc., to their staff. The distance between the tea shop and company is about 2 to 3 Kms, and he has not enquired A.1 and the deceased why they are quarrelling. He admitted that one cannot hear the discussion going on the road from the tea stall. He has not stated the father name of A.1 before the police or his residence or descriptive particulars and Police has not conducted any identification parade to identify A.1.
11. P.W.9 in his evidence stated that, he was running a vegetable shop. Usually he will close his shop at 8:00 to 8:30 PM, but, on the date of incident he closed his shop at about 10:00 PM and he has not explained why he has closed it after two hours, but he stated that he saw A.1, A.2 and deceased and A.1 & A.2 caught hold of hands of the deceased and making him to sit inside of auto. As they are close friends, he has not taken it seriously. He has seen him in the lights of the Railway Station. After 15 minutes, A.1 and A.2 came to the Railway Station. On the next day, he came to know about the death of the deceased. He informed about the presence of A.1 and A.2 near Railway Station. P.W.9 in his Cross-examination admitted that he has not stated about the age, father name and descriptive particulars and the residences of Mohd.Sathar and 8 Saleem and Police have not conducted any identification parade. He also admitted that he has not stated before the Police that A.1, A.2 and deceased were friends and he had seen them in the lights of the Railway Station. He has also not stated before Police that he saw the accused taking the deceased in auto and returned back to the Railway Station in auto.
12. The cardinal principle of Criminal jurisprudence is that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt. Admittedly, in this case there is no direct evidence regarding the murder of deceased by A.1 and A.2. This is a clear case of circumstantial evidence. The Hon'ble Apex Court in the case of Ashok Kumar Chatterjee Vs. State of Madya Pradesh1 held as follows:
"When a case rests upon circumstantial evidence such evidence must satisfy the following tests:
1) The circumstances, from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
2) Those circumstances should be of a definite tendency unerringly towards guilt of the accused.
3) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else, and
4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt 1 AIR 1989 SCC 1890 9 of the accused but should be inconsistent with his innocence.
13. The prosecution examined P.Ws.7, 8 and 9 and tried to establish that on the previous night A.1 and A.2 were quarrelling with the deceased, they caught hold of him and on the next day the body of the deceased was found in the bushes of the railway quarters, as such there is every possibility that A.1 and A.2 might have killed the deceased. The motive of the offence is that deceased got huge money in the Matka (Gambling) and A.1 demanded some amount from him, but he refused to give money, as such A.1 informed the same to A.2. Both of them insisted the deceased to come in their auto and picked up quarrel with him and also throttled him and thrown his body in the bushes and they have taken away the watch and purse of the deceased. P.Ws.10 and 11 turned hostile. P.W.12 is the Panch witness for the scene of offence and inquest panchanama. P.W.13 is the panch witness for confession cum seizure panchanama i.e., M.O.7 is the purse of the deceased and M.O.9 is the auto. It was stated that in the purse, the family Photograph was there, but in the Cross-examination he stated that Ex.P7 and Ex.P8 were drafted at Police Station and their signatures were obtained in the Police Station. P.W.14 stated that he acted as Panch witness for confession 10 panchanama of A.1 and A.2. He clearly stated that he has not enquired personally with A.1 and A.2 regarding the case and he has also not enquired when they were arrested and why they were arrested. He further stated that slips affixed on M.O.7 were signed by them in the house of A.1. There was no signature on M.O.7.
14. P.W.15 is the Civil Assistant Surgeon, who conducted Postmortem examination. Ex.P.9 is the Forensic Science Laboratory report and Ex.P10 is Postmortem Examination Report. As per the Postmortem Examination Report, deceased died due to strangulation. P.W.19 is another Civil Assistant Surgeon who conducted autopsy along with P.W.15. P.W.17 is the Professor of Forensic Science in Gandhi Medical College. He issued the Certificate and the same is marked under Ex.P11, as he examined the hyoid bone in Cr.No.223 of 2004 of P.S.Zaheerabad and found fracture of left cornu of hyoid bone. P.W.16 is the Panch witness for inquest and for the scene of offence. P.W.18 is the evidence of Judicial First Class Magistrate, regarding the identification of watch and purse by the father and brothers of the deceased. He has not recorded the descriptive particulars of the watch and the purse before conducting identification parade and he has not ensured 11 whether the Police have shown M.Os.6 & 7 to the witnesses prior to the identification. P.W.20 is the Photographer who filed Photographs under Ex.P15 along with negatives. P.W.21 is the Sub Inspector of Police, who registered FIR under Ex.P16 and P.W.22 is the Inspector of Police who conducted investigation and filed Charge Sheet. He clearly stated that P.W.9 has not stated in his 161 Cr.P.C Statement that he saw A.1 and A.2 catching hold of the hands of the deceased from a distance of 15 yards. He had also not conducted the identification parade through witnesses P.Ws.7 to 9 and 11 to Judicial First Class Magistrate.
15. The trial Court after considering the entire evidence on record held that prosecution failed to prove the guilt of the accused beyond reasonable doubt and extended the benefit of doubt to A.1 & A.2 and found them not guilty and accordingly acquitted them. Aggrieved by the said Judgment, State preferred the present appeal. Though the witnesses stated that they have seen A.1 & A.2 and deceased on the previous night, P.W.3 in the Cross-examination clearly stated that there are no lights between MPD office and Railway Quarters and it was dark, moreover, near the dead body there was no light. It was further elicited that there was thorny bushes at the scene of offence to a 12 height of 5 to 6 ft. The trial Court after considering the said evidence observed that it is not possible to see the accused. Moreover, the natural human conduct is that when P.W.7 saw the accused quarrelling with the deceased, he ought to have made efforts to separate them, but he simply stated that as they were friends, he left the place without any interference.
16. The case of the prosecution is that A.1 and A.2 quarreled with the deceased during night time, but admittedly at that time there was no light and it was dark. Moreover, P.W.7 saw them from a distance and there were thorny bushes to a height of 5 to 6 ft and it is also clear from the Photographs taken by the Police at the scene of offence, as such there is no possibility for P.W.7 to see the accused when they were quarrelling with the deceased. P.W.8 stated that he heard A.1 quarrelling with the deceased, but he was on the other side of the road near Tea stall. Even as per his version, quarrel took place on the opposite side at some distance, as such there is no possibility to hear the quarrel. Moreover, he was working in a Company in day shift, as such his presence at the scene of offence is doubtful and he stated that he had seen the accused and deceased at 2:00 PM and there is variation in the time stated by the witnesses. Whereas, P.W.9 stated that he closed his vegetable shop at 13 10:00 PM and seen A.1 and A.2 taking the deceased forcibly in an auto, but he has not questioned them as they were all friends and later while he was chit-chatting with friends near Railway Station, he found A.1 & A.2 returned to the Railway Station. It is for the prosecution to establish the case by chain of circumstances which lead to one and only conclusion that the accused killed the deceased. All the witnesses P.Ws.7 to 9 stated only regarding quarrel between the accused and deceased. They have not stated anything regarding throttling or strangulation of the deceased by the accused.
17. The prosecution relied upon the seizure of the M.Os.6 & 7 from the dead body of the deceased and it was stated that they have seized Watch from A.2 and Purse from A.1. P.W.1 gave complaint after seeing the dead body at the scene of offence, but he has not stated regarding missing of Watch and Purse from his brother. In fact, all the brothers have not seen the deceased from the past 15 days or one month prior to the incident. The identification particulars or the make of the Watch and Purse were not stated by the witnesses before the Magistrate during its identification parade. Therefore, the recovery of Purse and Watch from the accused itself cannot lead to the irresistible conclusion that they committed the murder of the deceased and 14 taken away the Purse and Watch from him. The learned Counsel for the accused contended that no identification parade was conducted by the Magistrate to identify the accused by P.Ws.7 to 9. All of them have seen the accused during night time, when it was dark. Therefore, basing on their evidence the accused cannot be convicted. As already stated, it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt, if at all there is any doubt, the benefit of doubt should be extended to the accused. The Hon'ble Apex Court in the case of Jafarudheen & others Vs. State of Kerala,2 held that while dealing with an appeal against acquittal by invoking Section 378 of the Cr.P.C, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has ben analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. The Hon'ble Apex 2 2022 Live Law (SC) 403 15 Court in the case of Atley Vs. State of Uttar Pradesh,3 held that it is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial Court continues even up to the appellate stage and that the appellate Court should attach due weight to the opinion of the trial Court which recorded the order of acquittal. In a case of circumstantial evidence, all the circumstances should lead to one and only conclusion that the accused committed murder of the deceased. But, in this case, there are several inconsistencies in the evidence of P.Ws.7 to 9. The trial Court discussed the evidence of P.Ws.7 to 9 at length and also considering the other evidences on record, rightly acquitted the accused. We do not find any reason to interfere with the Judgment of the trial Court.
18. In the result, the Criminal Appeal is dismissed confirming the Judgment of the trial Court dated 13.09.2007 in S.C.No.301 of 2005.
3 AIR 1955 SC 807 16 Miscellaneous petitions pending, if any, shall stand closed.
________________________ JUSTICE K.LAKSHMAN _________________________ JUSTICE P.SREE SUDHA DATED: 20.06.2023 tri 17 THE HONOURABLE SRI JUSTICE K.LAKSHMAN AND THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CRIMINAL APPEAL No. 1073 of 2012 (per Hon'ble Smt. Justice P.Sree Sudha) DATED: 20.06.2023 TRI