Telangana High Court
Sudhamsh Netha , Sunny, Secunderabad., vs The State Of Telangana, Rep Pp., on 18 February, 2025
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.464 OF 2017
Between:
Amer Mohammed Jamal ... Appellant
And
The State of Telangana,
Rep. by Public Prosecutor ... Respondent
Criminal Appeal No.381 OF 2017
Between:
Sudhamsh Netha @ Sunny ... Appellant
And
The State of Telangana,
Rep. by Public Prosecutor ... Respondent
DATE OF JUDGMENT PRONOUNCED: 18.02.2025
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
1 Whether Reporters of Local newspapers
may be allowed to see the Judgments? Yes/No
2 Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? Yes/No
__________________
K.SURENDER, J
__________________________________
ANIL KUMAR JUKANTI, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
+ Crl.A. No. 464 OF 2017
% Dated 18.02.2025
# Amer Mohammed Jamal ... Appellant
And
$ The State of Telangana,
Rep. by Public Prosecutor ... Respondent
+ Crl.A. No. 381 OF 2017
% Dated 18.02.2025
# Sudhamsh Netha @ Sunny ... Appellant
And
$ The State of Telangana,
Rep. by Public Prosecutor ... Respondent
! Counsel for the Appellants: Smt.Y.Rathna Prabha
^ Counsel for the Respondent: Sri Arun Kumar Dodla,
Learned Additional Public Prosecutor
>HEAD NOTE:
? Cases referred
1
(1984) 4 SCC 116
2
2025 LawSuit (SC) 117
3
HON'BLE SRI JUSTICE K.SURENDER
and
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.381 and 464 OF 2017
COMMON JUDGMENT:
1. Criminal Appeal No.464 of 2017 was filed by A1 and Criminal Appeal No.381 of 2017 was filed by A2.
2. A1 and A2 were convicted for the offences under Sections 302, 380, 201 r/w 120-B of IPC vide judgment in S.C.No.14 of 2015 dated 14.02.2017 passed by the II Additional Metropolitan Sessions Judge, Hyderabad.
3. Since both the appeals are questioning the conviction of the appellants/A1 and A2, the appeals are heard together and disposed off by way of this Common Judgment.
4. Briefly, the case of the prosecution is that, on 21.06.2013, at 3:00 P.M, PW1/complainant lodged a complaint stating that his sister, Shagufta Shereen (deceased), along with her husband, Amer Mohammed (A1), and their minor daughter, have been are residing at H. No. 6-3-566/23/C, 3rd floor, Anjali Apartments, Venkataramana Colony, Anandnagar Colony, Khairtabad, for the 4 past eight months. Around 10:30 AM, his brother-in-law (A1) left for his office, and approximately at 1:55 PM, P.W.1 received a phone call from A1, informing that PW1's sister had been stabbed to death and asked PW.1 to come immediately. Upon receiving the information, PW1 rushed to the house and found that his brother- in-law/A1 was present. He saw his deceased sister lying dead on the bed with stab injuries on her throat. He also noticed that empty jewellery boxes and other items were scattered across the room.
5. P.W.1 further stated that some unknown persons had likely stabbed the deceased with knives and fled after stealing a gold necklace set (bracelet and earrings) weighing about 2 tolas, a gold chain weighing about 1 tola, and cash amounting to ₹2,70,000/-.
6. Upon receiving the complaint from PW1, PW21, Detective Inspector of Police, Panjagutta PS, registered a case in Cr. No. 442/2013 under Sections 302 and 380 of the IPC and commenced the investigation.
7. During the course of investigation, PW21, along with the staff, visited the crime scene and, in the presence of mediators P.Ws. 11 5 and 12, had the scene photographed with the assistance of P.W.14. P.W.21 seized a blood-stained bed sheet and pillow cover. After conducting an inquest in the presence of PW13 and LW16, the deceased's body was sent to the mortuary at Gandhi Hospital, Secunderabad, where it was preserved. On 22.06.2013, P.W.18 conducted an autopsy on the deceased's body in the presence of PW13, LWs 16 and 17. At the mortuary, PW21 collected the deceased's blood-stained clothes. PW15 photographed the deceased's body during the autopsy.
8. P.W.21 then secured the presence of PWs 1 to 3 (the deceased's brother, father, and mother), circumstantial witnesses LWs 4, 6, 8, and PWs 4 to 10 and 19, as well as photographers PWs 14 and 15. Their statements were recorded in detail.
9. P.W.1 spoke about frequent petty quarrels between his brother-in-law/A1, and the deceased over trivial family matters and expressed suspicion about A1's involvement in the deceased's death. PWs 2 and 3 corroborated PW1's statement. P.W.6, a relative of the deceased, stated that he had seen Sudhamsh Netha/A2, visiting the deceased's house. He further mentioned that A2 was 6 carrying a bag while going upstairs and was later seen leaving hurriedly with the same bag.
10. P.W.17, Chief Medical Officer, examined A2 and noted nail injuries allegedly sustained during a struggle with the deceased. PW.17 issued a medical certificate.
11. P.W.18, the doctor who conducted the autopsy, documented the injuries and opined that the estimated time of death was between 12 to 24 hours before the post-mortem examination (PME). The cause of death was attributed to multiple stab injuries to the neck, combined with organophosphate, an insecticide poison. L.W.27, Assistant Director of APFSL, examined the material objects seized from the crime scene and the deceased's body. The FSL report dated 17.10.2013 stated that item nos. 1 to 9 were examined and human blood was detected on them. The blood group on item nos. 1, 2, and 4 to 9 was determined to be 'AB,' while the blood group on item no. 3 could not be identified. PW21 also collected A1's mobile phone call data. On 23.06.2013, at 4:30 P.M, A1 was apprehended at his residence in West Marredpally, Secunderabad. In the presence of mediators PW20 and LW21, A1's confessional 7 statement was recorded, wherein he allegedly admitted to planning the deceased's murder by hiring a killer. Based on A1's confession, PW21 seized the following:
1. One black Samsung Duos mobile phone (Dual SIM) with IMEI Nos. 353576058322290 and 353577058322298 and SIM No. 9966853700.
2. One black Samsung Galaxy Note GTN 7000 mobile phone with SIM No. 9052285551 and IMEI No. 382935054826046.
3. One gold chain weighing 8.860 grams.
4. One gold ring weighing 1.630 grams.
5. One pair of gold ear studs weighing 4.720 grams.
6. One gold black beads chain weighing 9.370 grams.
12. Pursuant to A1's confession, PW21 apprehended A2 on 23.06.2013 and, in the presence of PW20 and LW21, recorded A2's confessional statement.
13. The investigation established that A1 married the deceased in 2008, and deceased gave birth to a daughter. There were frequent petty quarrels between A1 and the deceased over family matters. Unable to pacify his wife, A1 allegedly devised a plan to eliminate her by hiring a killer. As per A1's plan, on 3.6.2013, he purchased a Vodafone SIM card bearing No. 9642193910 for Rs. 200 in the name of Jamal, using his driving license as ID proof. Subsequently, A1 contacted A2, explained his plan, and A2 allegedly agreed to kill 8 the deceased in exchange for Rs. 3,00,000/-, to which A1 consented. In furtherance of their criminal conspiracy, A1 procured Restyl 0.25 and Mypspaz 10 tablets from PW10's medical shop, allegedly intending to induce the deceased into deep sleep. Further, A1 allegedly obtained poison to ensure that the deceased would be unable to resist A2's attack. As per their plan, A1 allegedly administered Restyl 0.25, Mypspaz 10 tablets, and poison to the deceased. Once the deceased lost consciousness, A1 informed A2 about the same through his Vodafone SIM No. 9642193910 and allegedly instructed A2 to proceed with the killing.
14. On 21.6.2013, A2 entered the house and allegedly stabbed the deceased to death with a knife before taking away her gold ornaments to mislead the police. After allegedly committing the murder, A2 informed A1 through Vodafone SIM No. 9642193910. Following A1's instructions, A2 destroyed the SIM card to avoid being traced by the police. A2 subsequently handed over the deceased's gold ornaments to A1, which were later seized from A1's possession. Based on the investigation, A1 and A2 were charge- 9 sheeted for offences under Sections 302, 201, 380, and 120(B) of IPC.
15. Learned Sessions Judge convicted the appellants mainly on the basis of circumstantial evidence. According to the learned Sessions Judge, P.Ws.1 to 3, P.W.6 and P.W.8 witnesses and the recoveries which were effected from A1 and A2 make out a case against both the appellants.
16. The five golden principles constituting panchsheel to prove a case based on circumstantial evidence were summed up in Sharad Birdhichand Sarda v. State of Maharashtra 1 , which reads as follows:
"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 : 1973 SCC (Cri)1033 :
1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047] 1 (1984) 4 SCC 116 10 "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."
17. According to the prosecution, there were frequent quarrels in between A1 and the deceased over family issues. Unable to bear the frequent fights, A1 planned to eliminate his wife/deceased by hiring killer/A2. The evidence of quarrel, in between the deceased and A1, is stated by P.W.1/brother of the deceased, P.Ws.2 and 3 parents of the deceased. According to P.Ws.2 and 3, at the time of marriage, 27 tulas of gold, Rs.1.00 lakh cash was given, apart from furniture. When the deceased was pregnant, she was neglected by her husband/A1, as such, deceased was taken to the house of P.Ws.2 and 3. The harassment continued even after the birth of the child. In the year, 2011, A1 and the deceased moved to Bangalore. The 11 deceased used to inform P.W.2 about frequent fights with A1. In the year 2012, A1 and deceased shifted back to Hyderabad and stayed at West Marredpally. Even there also, harassment continued. According to P.Ws.2 and 3, on 18.06.2013, the deceased called P.W.2 stating that A1 had beaten her and the deceased requested PW.2 to take her. P.W.2 then assured the deceased that they were planning to visit Hyderabad on 21.06.2013 and sort out issues.
18. During the course of cross-examination of P.Ws.1 to 3, they admitted that the statements regarding strained relation in between the deceased and A1, were an improvement from the complaint- Ex.P1 and from their Section 161 Cr.P.C statements. The omissions regarding the harassment was proved during cross examination of the Investigating Officer. The Investigating Officer during his evidence deposed that he did not collect any documentary evidence to support the claim of P.Ws.1 to 3 that gold, household articles and cash were given at the time of marriage.
19. The incident happened on 21.06.2013. Around 3.00 p.m, P.W.1/brother of the deceased lodged complaint with the police. In the complaint, he stated that some unknown persons stabbed his 12 sister with knife and blade after committing theft of gold ornaments. P.W.21/investigating officer having received complaint, went to the scene where A1 was present. In the inquest that was held at 4.00 p.m on the same day, it is mentioned that unknown persons had committed murder. Though P.Ws.1 and 2 stated before the Court that they suspected A1 of being responsible for the murder of the deceased, however, the same was not stated till conclusion of the inquest proceedings, at 7:00pm.
20. The police did not take the help of any fingerprint expert or collect any clues from the scene. In Ex.P6, scene of offence panchanama, it is stated that the scientific officer, fingerprint experts, Dog squad and other police officials visited the scene of offence, however, P.W.21 did not cite any of these officials as witnesses.
21. According to the prosecution case, A1 contacted A2 on 03.06.2013 after he purchased Vodafone SIM card bearing No.9642193910 and, contacted A2 on 8008976854. According to the prosecution, after the incident, A1and A2 made phone calls, 13 contacted one another through said phone numbers and after the murder of the deceased, SIM cards were destroyed.
22. In the case of Chandrabhan SudamSanap v. State of Maharashtra 2 , the Hon'ble Three Judge bench of the Supreme Court held that, an electronic evidence in the form of CDR without any certification under Section 65-B of the Evidence Act has to be eschewed from consideration. In the present case, admittedly, Section 65-B certification was not filed, to rely on the call data record filed by the prosecution. The link to show that A1 and A2 contacted one another, is the call detail records, which cannot be made basis to conclude that there was communication between A1 and A2.
23. One more circumstance of the prosecution case is that A1 purchased Restyl 0.25 and Myospaz, each 10 tablets from P.W.10's medical shop. The said tablets were administered to the deceased by A1 and also insecticide poison. Thereafter, he called up A2, who had key to the flat. A2 then went to the flat around 11.00 a.m and committed murder of the deceased. P.W.6 was waiting in the cellar 2 2025 LawSuit (SC) 117 14 of the building complex when A2 went upstairs and came down on the date of the incident.
24. The cause of death, according to the postmortem examination doctor/P.W.18 are the multiple stab injuries to the neck associated with organo phosphate insecticide poison. P.W.18 deposed in his cross-examination that, organo phosphate poisoning cases have classical smell which can be detected at the time of postmortem. However, in the postmortem report, it is mentioned that there was no specific smell present. The prosecution has not come up with any evidence to show from where the insecticide poison was purchased by A1.
25. P.W.10 was examined by the prosecution to state about A1 purchasing Restyl tablets from his shop. P.W.10 stated that there will be a duplicate copy of prescription which has to be retained with the shop. However, no such copy of prescription was seized from the shop. Ex.P5 was filed by the prosecution and marked through P.W.10. According to P.W.10, he sold tablets on 11.06.2013 to Amar Mohd.Jamal, however, he did not identify the person purchasing the tablets.
15
26. The prosecution relied on the evidence of P.W.6 to show that A2 was present at the scene on the date of the incident, i.e., 21.06.2013. According to P.W.6, he went to the house on 21.06.2013 at about 11.00 a.m and knocked the door of the deceased. However, there was no response. He came down and started waiting for the deceased expecting that she would return. Meanwhile, he saw A2 going upstairs and coming down, 15 to 20 minutes thereafter. Then, P.W.6 again went upstairs and on seeing that there was no response, he went away. PW.6, further stated that he attended the cremation of the deceased on 23.06.2013 or 24.06.2013. On television, he saw A1 and A2 in a press meet who were accused in the murder case. P.W.6 then identified A2 as the person who went upstairs on the day when he was waiting near the apartment. Accordingly, he went to the police on 29.06.2013 and gave statement that A2 was the person who went upstairs and returned while he was waiting in the apartment parking area. In the cross-examination, P.W.6 stated that he is a resident of Agapura, which is at a distance of 11 km. from A1's flat. He does not know the telephone numbers of the deceased, A1, or P.W.2. PW.6 further stated that he was waiting in the parking area. There was a 16 watchman room. He did not try to deliver parcel to the neighbors or the watchman. P.W.6 further stated that he does not remember on which TV channel he saw A1 and A2. The police, according to P.W.6, had shown him photograph of A2 before he was asked to identify A2. No test identification parade was conducted.
27. P.W.6 was examined on 29.06.2013. Though he stated that he attended cremation of the deceased on 23.06.2013 or 24.06.2013, he did not give details of any person going up and coming down while he was waiting in the parking area, near the watchman's room. P.W.4 is the wife of the watchman of the said building. According to her, she was on the ground floor. Around 11.00 a.m, and at about 12.30, the daughter of the deceased returned home. Normally, the deceased used to come down and pick up her daughter. However, she did not come down, and as such, P.W.4 took the daughter to the flat. Since there was no response near the flat, she called A1. A1 informed P.W.4 that he would be back in 20 minutes. A1 returned and found the deceased dead. Immediately, three Doctors were called, who were in the apartment, who came to the scene and checked the deceased and found her dead. In the 17 cross-examination, P.W.4 admitted that there was a watchman quarter in the parking area and any visitor to the apartment would necessarily pass through the quarter of the watchman and if any stranger comes, they will question them regarding the purpose of visit. P.W.4 curiously did not state about either the presence of P.W.6 in the parking area where she was waiting near watchman room, or about the visit of A2. P.W.6 stated that he did not have the number of the deceased or A1 or PW.2. His presence gives rise to any amount of doubt since he asserts that he was at the scene near the apartment without making any call and states that he waited in the parking area besides watchman room. It is an apartment complex and normally, there would be several persons going up and down through lift or through stairs. It is not known as to how P.W.6 was in a position to identify A2 as the person who went upstairs and came down. There are several flats in the apartment complex. The evidence of P.W.6, in the background of the evidence of PW.4 is suspicious and appears to have been planted.
28. The prosecution relied on the injuries received by A2 to suggest that he attacked the deceased and in the process, received 18 simple injuries on his body. P.W.17 is the Doctor, who examined A2 on 24.06.2013 at 12.15 p.m. Wound certificate-Ex.P20 was also issued by P.W.17. The cause of death of the deceased was organo phosphate poison and stab injuries. According to prosecution case, Restyl tablets were also administered by A1. If at all insecticide poison and Restyl tablets were administered, it is not known as to why no signs of such insecticide were found during postmortem examination. If a person is administered both sleeping tablets and also insecticide poison either such person would be unconscious or would take steps to vomit poison. At the scene, no such evidence of poison was present during panchanama. The prosecution failed to explain as to how A2 received injuries in the background of the deceased being administered with sleeping pills and insecticide poison. At the time of observation of dead body, the hands of the deceased were tied, as seen in Ex.P21/postmortem examination report. The said factor raises doubt regarding prosecution's claim that A2 was injured by the deceased when he attacked her. Admittedly, nothing was collected from the nails of the deceased to know whether anything was embedded in between the finger nails. 19
29. The weapon seized from A2 is a vegetable cutter knife with sharpness on one side. P.W.18 deposed that stab injuries sustained by the deceased are of spindle shape and with clean cut margins. The postmortem examination Doctor was not shown the knife MO9 which was seized from A2 to support the version of the prosecution that the injuries were caused by MO9. P.W.18 admitted that both the hands of the deceased were tied with a pink and blue chunni. P.W.18 admitted that the spindle shaped injuries with clean cut margins are caused by a double edged weapon. The said admission of the Doctor regarding the injuries that would be possible with a double edged weapon and absence of any smell of insecticide, creates suspicion of the correctness of the claim of the prosecution that the deceased was administered insecticide poison and also stabbed with MO9 which has a sharp edge on only one side.
30. The prosecution further relies on the recoveries that were effected at the instance of A1 and A2. A1 was apprehended on 23.06.2013. P.W.20, independent person was asked to act as a witness to the confession and seizure of A1. A1 was in the house 20 and in the presence of P.W.20 and other police personnel, he confessed to the crime and produced gold ornaments which are gold chain, gold black bead chain, two ear studs, one gold ring, one gold bracelet, which are MOs.2 to 6, respectively. A1 led the police to the house of A2 at East Marredpally. A2 was present in the house when A1 and others went there. A2 was questioned and his confession was also recorded. MO9- knife was seized along with cash of Rs.3.00 lakh, blood stained clothes, phone, and key, which according to the prosecution is the key to the flat of A1.
31. P.W.20, independent witness to the confession and seizure, in his cross-examination admitted that he is having acquaintance with the family of P.Ws.1 to 3 as they used to live in the same colony. P.W.20 further admitted that he went to the Court two or three times and on all the occasions, he had interacted with P.Ws.1 and
2.
32. The gold ornaments, MOs.2 to 6 which were seized at the instance of A1, were neither subjected to test identification parade in accordance with Rule 34 of Criminal Rules of Practice, nor shown to P.Ws.1 to 3 to identify that the jewelry was that of the deceased. 21
33. According to the case of the prosecution, A1 offered Rs.3.00 lakhs to A2 to kill his wife. According to the plan, A1 would administer poison and sleeping tablets, and thereafter, A2 would enter into the flat and commit murder of the deceased. The key- MO8 was seized at the instance of A2. At the time of seizure, there were two keys with A2 and in the Court only one key was marked bearing No.1142163. However, the number of the key was not mentioned in Ex.P27, which is the seizure panchanama. Though P.W.7 was examined, who is the owner of the flat, MO8 was not shown to him. The police ought to have taken the key to the flat and opened the lock of the flat in the presence of independent witnesses. In the absence of any such exercise undertaken, and the owner, P.W.7 not identifying that MO8 was the key of A1's flat, it cannot be assumed that the key MO8 is the key to the flat of A1. Another circumstance is the seizure of cash of Rs.2,70,200/- from A2. It is the case of prosecution that A1 withdrew cash of Rs. 3 lakhs. It cannot be assumed that the cash found in the house of A2 was handed over by A1 to A2, in the absence of the prosecution failing to prove communication in between A1 and A2. 22
34. The prosecution is bound to prove each and every circumstance beyond reasonable doubt in a case of circumstantial evidence. In the present case, every circumstance gives rise to doubt, as already discussed above. Such doubtful circumstances cannot form a complete chain, which would unerringly point towards guilt of the appellants. In view of the discrepancies in the case of the prosecution, benefit of doubt is extended to the appellants.
35. In the result, the judgment of trial Court in S.C.No.14 of 2015, dated 14.02.2017 is set aside, and the appellants are acquitted.
36. Since the appellants are in jail, they are directed to be released forthwith, if they are not required in any other case.
37. Accordingly, both the appeals are allowed.
__________________ K.SURENDER, J __________________________________ ANIL KUMAR JUKANTI, J Date:18.02.2025 kvs 23 HON'BLE SRI JUSTICE K.SURENDER and HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI CRIMINAL APPEAL Nos.381 and 464 of 2017 Date: 18.02.2025 kvs