Telangana High Court
Mohd. Miskeen Khan vs The State Of Telangana on 24 April, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No. 2699 of 2018
JUDGMENT:(per The Hon'ble Sri Justice K.SURENDER) This appeal is filed by the appellant/A1, aggrieved by the conviction recorded by the Metropolitan Sessions Judge, Hyderabad, in S.C.No.04 of 2018 dated 11.09.2018, convicting the appellant under Section 302 read with Section 34 of IPC, and sentencing him to undergo life imprisonment and to pay a fine of Rs.500/- for the offence under Section 302 of IPC.
2. Heard learned counsel for the appellant and Sri Arun Kumar Dodla, learned Additional Public Prosecutor, Sri M.Vivekananda Reddy, learned Assistant Public Prosecutor appearing for the respondent-State.
3. PW.1 lodged an English typed complaint with the Police on 17.04.2017 at 10.00 A.M. In the complaint, he narrated that his brother Syed Omed Ali (deceased), was a rickshaw puller and on 16.04.2017 at 16.00 hours, he saw his brother in an auto going with the appellant and two others. When PW.1 questioned the deceased as to where they were all going, the deceased informed him that they were going to the Toddy Compound at Saroornagar. 2 The next day morning at 9.00 A.M., PW.1 received a phone call from Madannapet Police saying that the deceased was found near a graveyard, Madannapet. PW.1 went there, identified the dead body, and lodged complaint-Ex.P1.
4. PW.2 is the person who went along with the appellant, A2, and the deceased to consume Toddy at Saroornagar. All of them consumed Toddy in the compound. PW.2 returned to his house at 8.00 p.m. from the Toddy shop. On the next day, he was informed around 3.00 P.M. about the death of the deceased.
5. PW.3 is the Pan shop owner, who states that on 16.04.2017, he saw the deceased along with appellant and A2 at 10.30 - 10.45 p.m. All of them went to his pan shop, purchased two pans, and went away. The appellant was driving the auto. On 18.04.2018, Saidabad Police took the appellant and A2 and went to his shop, PW.3 identified them as the persons who had come on 16.04.2018 to purchase Pans. Police also showed the photograph of the deceased, and PW.3 identified the deceased and informed the Police that he saw the deceased along with A1 and A2 on 16.04.2018.
6. PW.4 is the Toddy shop cashier, who states that around 9.30 P.M. the appellant purchased four toddy packets and paid Rs.100/-. 3 They consumed toddy and left. However, PW.4 did not identify the deceased as the person who came to the Toddy shop.
7. PW.5 is the person who is running a fish shop at Shiva Shakthi Bar, Shankeshwar Bazar, Saroornagar. According to him, on 16.04.2017, around 11.30 P.M., four persons went to the Bar, and while two persons sat at a table, two persons came to the counter and purchased two pieces of fried fish. Two days thereafter, the Police enquired with PW.5 about the appellant and another purchasing fish. However, the Police did not show the photograph of the deceased to confirm whether the deceased accompanied the appellant and A2 at 11.30 P.M. at the Bar.
8. PW.6 is the scene of offence panch. According to him, MOs.1 to 7 were seized during the scene of offence proceedings.
9. PW.7 is the witness to the inquest proceedings.
10. PW.8 is the panch for the confession of A1. Pursuant to the confession of A1, MOs.10 and 11, which are the pant and shirt of A1, were seized. MOs.13 and 14 are the jeans shirt and pant of A2.
11. PW.9 is the Postmortem doctor who found 17 injuries on the body of the deceased. According to PW.9, the cause of death was 4 due to throttling associated with multiple injuries. PW.9 also states that there was evidence suggestive of violation of the anal orifice.
12. The case of the prosecution is totally based on circumstantial evidence. According to the prosecution, PW.1 had seen the appellant, A2, and the deceased in an Auto at 9.00 P.M. PW.2 had seen them at 8.00 P.M. PW.3 had seen them at 10.30-10.45 P.M., and PW.4 had seen them at 9.30 P.M. The last person who saw the appellant was PW.5. PW.5 had seen the appellant at 11.30 P.M. on 16.04.2017. PW.5 states that 4 persons came to the bar, while two persons sat at a table, and the appellant and A2 went to his counter and purchased fish. Though Saidabad Police had taken the appellant and A2 and enquired about the purchase of fish, however, the Police did not show the photograph of the deceased to PW.5, who is the last person who saw the deceased on 16.04.2017.
13. There were witnesses who had seen the appellant, A2, and the deceased till 11.30 P.M. PW.3 is the person who had seen them around 10.45 P.M., and thereafter they were seen by PW.5 at 11.30 P.M. However, PW.5 had only identified the appellant and another as the persons who had come to the bar. In the absence of PW.5 stating that the deceased was also present in the bar, the logical conclusion would be that only the appellant and A2 were seen 5 together by PW.5. The said evidence of PW.5 creates doubt regarding the prosecution's version of the appellant being seen along with the deceased.
14. The deceased was found dead the next day morning, and the approximate time of death was 24 to 36 hours prior to autopsy, according to PW.9-postmortem doctor. The post-mortem was conducted on 18.04.2017 in between 1.30 to 3.30 P.M. If the approximate time of death, and the timing of post-mortem are looked into, the death must have occurred around 12.00 noon. Since the body was found at 7.30 A.M., according to PW.1, the death must have occurred between 2.00 A.M. to 7.30 A.M.
15. The Honourable Supreme Court, in Digamber Vaishnav and another v. State of Chhattisgarh 1, held that:
14. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence 1 (2019) 4 Supreme Court Cases 522 6 at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
15. This Court in Jaharlal Das v. State of Orissa [Jaharlal Das v. State of Orissa, (1991) 3 SCC 27 : 1991 SCC (Cri) 527] , has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
16. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and
(iii) 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 none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
17. In Varkey Joseph v. State of Kerala [Varkey Joseph v. State of Kerala, 1993 Supp (3) SCC 745 : 1993 SCC (Cri) 1117] , this Court has held that suspicion is not the substitute for proof. There is a long distance between "may be true" and "must be 7 true" and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
18. In Sujit Biswas v. State of Assam [Sujit Biswas v. State of Assam, (2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] , this Court, while examining the distinction between "proof beyond reasonable doubt" and "suspicion" has held as under: (SCC p. 412, para 13) "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be"
true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."8
19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence [see Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] ].
20. Bearing these principles in mind, we shall now consider the contentions of the learned counsel for the parties. In order to establish that the accused have committed the offence, the prosecution has relied on (i) testimony of child witness Kumari Chandni (PW 8); (ii) the recoveries made under Section 27 of the Evidence Act; (iii) the fingerprint report; (iv) FSL report; (v) motive of committing robbery; and (vi) evidence of last seen together.
16. In Kanhaiya Lal v. State of Rajasthan 2, the Honourable Supreme Court has reiterated that the 'last seen together' theory does not by itself lead to the inference that it was the accused who committed the crime. It was held that:
"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non- explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."2
(2014) 4 SCC 715 9
17. As rightly argued by the learned counsel, only the last seen theory cannot form the basis to convict the appellant when there is no other corroborating evidence. Though the wearing apparel of the appellant and A2 was seized, however, the blood stains found on the wearing apparel could not be established as that of the deceased.
18. The Honourable Supreme Court, in Shankar v. State of Maharashtra 3, held as follows:
"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 3 2023 SCC OnLine SC 268 10 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."
19. The Honourable Supreme Court, in Sujit Biswas v. State of Assam, 4 held as follows:
"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and 4 (2013) 12 SCC 406 11 "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 :
1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )"
20. As already discussed, PW.5 had last seen the appellant. However, PW.5 does not state that the deceased accompanied the appellant. In such circumstances, and also in the background of the post-mortem doctor-PW.9 stating that no alcohol was found in the stomach of the deceased, the entire version of the prosecution becomes doubtful.
21. Accordingly, the Criminal Appeal is allowed, setting aside the conviction recorded by the Metropolitan Sessions Judge, 12 Hyderabad, in S.C.No.04 of 2018 dated 11.09.2018. Since the appellant/A1 is on bail, his bail bonds shall stand discharged.
__________________ K.SURENDER, J _____________________ E.V.VENUGOPAL, J Date: 25.04.2025 tk 13 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No. 2869 of 2018 Dt. 17.04.2025 tk