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2022 DIGILAW 11 (TS)

Sakali Hanmanth v. State of Telangana

2022-01-04

A.RAJASHEKER REDDY, CHILLAKUR SUMALATHA

body2022
JUDGMENT : CHILLAKUR SUMALATHA, J. 1. Questioning the validity and the legality of the judgment that is rendered by the Court of IV Additional District and Sessions Judge (Fast Track Court), Nagarkunrool, dated 16.12.2016 in Sessions Case No. 611 of 2013 which stood pending on the file of the said Court, the appellant, who is the accused in the said Sessions Case, approached this Court by way of appeal. 2. Basing on the charge that the appellant (hereinafter be referred as “the accused” for convenience) committed the offence punishable under Section 302 I.P.C. the trial Court convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- in default of payment of fine, to undergo simple imprisonment for a period of three months. Aggrieved by the said verdict, the accused approached this Court questioning its validity and legality. 3. The grievance of the accused is that the trial Court totally ignored the fact that there were no eye-witnesses to the alleged incident and the trial Court wrongly based its judgment on circumstantial and hearsay evidence. He further pointed out that the trial Court relied upon the fact that the deceased was last seen in his company, but it failed to observe that there was no evidence that himself and the deceased left the arrack shop together after consuming liquor. The accused further pointed out that the trial Court got confused and wrongly expected him to disprove the contents of Ex.P-9-F.I.R. and further, it erred in believing the evidence of PW-9, Ex.P-3 the alleged confessional statement and the recovery of MO-1 and thus, the judgment of the trial Court is unsustainable. 4. Heard the submission of the learned counsel appearing for the appellant/accused as well as the learned Additional Public Prosecutor appearing for the respondent-State. 5. 4. Heard the submission of the learned counsel appearing for the appellant/accused as well as the learned Additional Public Prosecutor appearing for the respondent-State. 5. Having regard to the pleas taken and the grounds projected, as narrated above, the points that fall for consideration are: (1) Whether the prosecution emerged successful in establishing beyond all reasonable doubt that the accused has committed the offence of culpable homicide amounting to murder which is punishable under Section 302 I.P.C. (2) Whether there exists any infirmity in the judgment of the trial Court either in appreciating the facts of the case or in applying the established principles of law to the said facts, as contended by the appellant/accused, which in turn requires the interference of this Court exercising the appellate jurisdiction. 6. Point Nos. 1 and 2: The version of the prosecution, as could be culled out from the charge sheet, is that one G. Venkataiah (hereinafter be referred as “the deceased” for brevity) is the brother of the de facto complainant by name G. Balaswamy and their sister is Niranjanamma. She was given in marriage to the accused. Thus, the accused is the brother-in-law of the de facto complainant and the deceased. On the invitation of the de facto complainant, his sister Niranjanamma and her husband, who is the accused, went to the house of the de facto complainant on 31.12.2010 to attend the cradle ceremony of the grandson of the de facto complainant. On the next day, i.e. on 01.01.2011 at about 7 a.m. the accused and the brother of the de facto complainant, who is the deceased, went to Malkapur Village for consuming arrack. At about 2 p.m. PW-3 made a phone call to the de facto complainant and informed him that the deceased was found dead in the agricultural fields of one Bainu Manyam. On that, the de facto complainant and others went to the spot and found the dead body of the deceased. The accused who accompanied the deceased was not found and therefore, they suspected that the accused might have killed the deceased keeping previous grudges in mind. Basing on the complaint given, a case was registered and investigated into. Inquest was held and the dead body was subjected to post-mortem examination. The accused who accompanied the deceased was not found and therefore, they suspected that the accused might have killed the deceased keeping previous grudges in mind. Basing on the complaint given, a case was registered and investigated into. Inquest was held and the dead body was subjected to post-mortem examination. On 03.01.2011, the accused was apprehended at Kranthi Hotel, Telkapally and he was interrogated in the presence of PW-6 and LW-10 Narsimha and the accused confessed the commission of the offence before them and revealed that the stick with which he hit the deceased was thrown into bushes and basing on his confessional statement, the said stick was recovered and thereafter, the accused was arrested and sent for remand. 7. Basing on the facts thus projected by the prosecution, the trial Court framed a charge against the accused for the offence punishable under Section 302 I.P.C. proceeded with the trial and during the course of trial, recorded the evidence of the witnesses, subjected the accused to 313 Cr.P.C. examination and thereafter, basing on the evidence produced, convicted the accused for the offence punishable under Section 302 I.P.C. The judgment of conviction is assailed by the accused. 8. Learned counsel appearing for the appellant/accused submitted that there is no iota of truth in the version of the prosecution and basing on false presumptions and surmises, the trial Court convicted the accused throwing into water the settled principles of Criminal jurisprudence and indeed, the prosecution utterly failed in establishing the guilt of the accused beyond all reasonable doubt. The learned counsel further submitted that none of the prosecution witnesses spoke that it is the accused who killed the deceased and even the motive is not established, but without considering all these aspects, the trial Court convicted the accused which is unjustifiable. 9. The learned Additional Public Prosecutor while concurring with the submission of the learned counsel for the appellant/accused that there is no direct evidence, stated that the conviction is based on the circumstantial evidence and law permits to do so. 10. Thus, in the light of the above submission, it has to be seen whether the prosecution has produced reliable and convincing evidence so as to base conviction. 11. Admittedly, as rightly projected by the learned counsel for the appellant/accused, the case is entirely based on circumstantial evidence and there is no direct evidence. 10. Thus, in the light of the above submission, it has to be seen whether the prosecution has produced reliable and convincing evidence so as to base conviction. 11. Admittedly, as rightly projected by the learned counsel for the appellant/accused, the case is entirely based on circumstantial evidence and there is no direct evidence. The judgment of the trial Court is based on the evidence of PWs. 1 to 9, Exs.P-1 to P-9 and M.O.1. The evidence of the de facto complainant could not be brought on record in the light of his death. The mother and brother of the de facto complainant were examined as PWs. 1 and 2 respectively. The person who passed on the information to the de facto complainant about the death of the deceased was examined as PW-3. The person who passed on the information to PW-3 about the death of the deceased was examined as PW-4. The person in whose presence the scene of offence was observed by Police was examined as PW-5. 12. As per the version of the prosecution, the accused confessed the commission of the offence before the mediators and his confessional statement led to the recovery of MO-1-stick which was used for the commission of the offence. One of the alleged mediators was examined as PW-6. PW-7 is the photographer, PW-8 is the doctor who conducted the post-mortem examination and PW-9 is the Investigating Officer. 13. Coming to the documentary evidence produced, Ex.P-1 is the Crime details form, Ex.P-2 is the inquest report, Ex.P-3 is the confessional statement of the accused, Ex.P-4 is the recovery panchanama, Exs.P-5 to P-7 are the photographs, Ex.P-8 is the postmortem report and Ex.P-9 is the F.I.R. The object alleged to have been used for the commission of the offence was marked as MO-1. 14. Basing on the above evidence, both oral and documentary, the learned judge of the trial Court came to a conclusion that the prosecution has established its case beyond all reasonable doubt. 15. Admittedly, there is no direct evidence. 14. Basing on the above evidence, both oral and documentary, the learned judge of the trial Court came to a conclusion that the prosecution has established its case beyond all reasonable doubt. 15. Admittedly, there is no direct evidence. PW-1, who is the mother of the deceased and the mother-in-law of the accused, and PW-2, who is the brother of the deceased and the brother-in-law of the accused, gave evidence only to the effect that the accused and his wife came to the house of de facto complainant to attend the cradle ceremony and on the date of incident, at about 7 am., the accused and the deceased left the house together for consuming liquor at Malkapur and during afternoon, they came to know that the dead body of the deceased was found in the fields of one Bainu Manyam. PW-1 during the course of cross-examination stated that she has not seen the accused killing the deceased. The evidence of PW-2 is that they suspected that the accused is responsible for the death of the deceased. 16. As per the version of the prosecution, basing on the incident that occurred prior to the death of the deceased, in which there was a quarrel between the accused and the deceased, the accused bore grudge and on the date of incident, he took the deceased out of the house on the pretext of consuming liquor and killed the deceased. Neither PW-1 nor PW-2 spoke in clear terms about the occurrence of the said incident which resulted in the accused killing the deceased. Also, as per the evidence of PW-1, the said incident occurred two months prior to the date of death of her son. 17. PW-2 during the course of chief-examination itself stated that one day prior to the incident, they all had good dinner in the night and also consumed liquor in happy mood. As per the version of the prosecution, the accused took the deceased from the house on the pretext of consuming liquor and they both consumed liquor and thereafter, while they were passing through the fields of Bainu Manyam, the accused attacked the deceased and killed him. As per the version of the prosecution, the accused took the deceased from the house on the pretext of consuming liquor and they both consumed liquor and thereafter, while they were passing through the fields of Bainu Manyam, the accused attacked the deceased and killed him. Such being the case, as rightly projected by the learned counsel for the appellant/ accused, to connect the chain of circumstances, the Investigating Officer should have at least examined either the owner or the shopkeeper of the arrack shop where the accused and the deceased have consumed liquor on the date of incident. Absolutely, there is no material on record to show that they both proceeded to Malkapur and consumed liquor there, as projected by the prosecution. 18. The evidence of PW-3 is that he was informed by PW-4 about the presence of a male dead body. The evidence of PW-4 is that about five years back, during afternoon, while he was returning with sheep, he noticed a male dead body with injuries near the lands of one Bainu Manyam and unable to identify the dead body, he informed the same to the villagers and on that, PW-3 and others rushed there and identified the dead body. There is no evidence on record to show that the accused was found in the company of the deceased in the vicinity of agricultural fields of Bainu Manyam soon before the incident. 19. A perusal of the judgment of the trial Court reveals that it based the conviction of the accused only upon the testimony of PWs. 6 and 9. The evidence of PW-6 is that in the year 2011, on one day at about 8 am., himself and L.W-10-Narsimha were summoned by the Inspector of Police, Nagarkurnool, to Kranthi Hotel of their Village and by the time they reached there, the accused was in the custody of Police and on their arrival, they were instructed by the Inspector of Police to enquire the accused as to reason of his police custody and during enquiry, the accused confessed that he beat the deceased with a stick and caused his death and the accused also led them to the outskirts of Jamisthapur Village and at his instance, MO-1-stick was recovered, and the confessional statement of the accused is Ex.P-3 and the recovery panchanama is Ex.P-4. Such being his evidence during the course of chief-examination, PW-6 during the course of cross-examination admitted that Police had shown MO-1 to him on that day and that the accused was in the custody of Police as on the date of his confession. Basing on those statements, the Additional Public Prosecutor sought the trial Court to permit him to cross-examine the witness by declaring him as hostile and permission was accorded. 20. During the course of cross-examination by the Additional Public Prosecutor, PW-6 denied the suggestion that he deposed falsehood during the course of cross-examination and his evidence during the course of cross-examination is contrary to the evidence given in chief-examination. 21. PW-9 gave evidence with regard to the registration of case, the investigation that went on including the arrest of the accused, the confessional statement of the accused before the mediators and the recovery of weapon. The evidence thus brought on record formed basis for conviction of the accused. It is not the statement of PW-6 that the accused was found by Police at Kranthi Hotel. PW-6 during the course of cross-examination admitted that the accused was in the custody of the Police as on the date of his confession. 22. If, as projected by the prosecution, MO-1-stick was recovered basing on the confessional statement of the accused, there is no reason as to why PW-6 states and admits that Police has shown MO-1 to him on that day. PW-6 should have deposed that the said object was shown to him and others by the accused. These facts were not at all perceived and observed by the trial Court. Also, neither the evidence of PW-6 nor the evidence of PW-9 was put to strict scrutiny by the learned judge of the trial Court. 23. It is the case of none that the death of the deceased was a suicide. However, the learned judge of the trial Court took up a point for consideration as to whether the death of the deceased is homicide or suicide and gave the finding as follows: “The above circumstances the evidence clinchingly proved that the deceased was died on 01.11.2011 and his body was found with injuries at scene of offence and therefore the death of the deceased was homicide, but not suicide.” 24. In a case based on circumstantial evidence, the established principle of law is that the chain of circumstances should be so linked that they bind the accused totally and pull him towards the resultant conclusion of establishment of guilt and not otherwise. When a case is based on circumstantial evidence, the burden rests upon the Investigation Officer to collect all the clinching material which would help in linking the chains so strongly that the prosecution, based on such evidence, would be able to establish the guilt of the accused beyond all reasonable doubt. But, in the case on hand, such clinching and convincing evidence is not found. The learned judge of the trial Court has given much weight to the evidence of the Investigating Officer and with an observation that the evidence of the Investigating Officer is corroborated to some extent with the evidence of the mediator convicted the accused. However, it has to be seen how far the evidence of PW-6 can be relied upon who has changed his statements from chief-examination to cross-examination. Also, when PW-6 has resiled from his earlier statement and permission was sought to cross-examine him by declaring him as hostile and he was subjected to cross-examination, the prosecution ought to have examined the other mediator to establish its case in clear terms. But, for the reasons best known, the prosecution failed to examine the other mediator, who is figured as LW-10 in the charge sheet, as a witness and his evidence was given up by the learned Additional Public Prosecutor. PW-6 even during the course of chief-examination did not narrate in clear terms the happenings that went on. Also, his evidence goes to show that the accused was produced before them from the custody of Police and the accused was present in the custody of Police while recording the alleged confessional statement also. Therefore, this Court is not inclined to concur with the following observation of the trial Court: “The evidence of PW-9 is corroborated by the chief-examination evidence of PW-6 fully and to some extent after he changed his version in the cross-examination. Therefore the circumstances are believable leading to the recovery of MO-1 at the instance of accused as in Ex.P-4. Therefore the recovery of MO-1 is proved beyond doubt.” 25. Therefore the circumstances are believable leading to the recovery of MO-1 at the instance of accused as in Ex.P-4. Therefore the recovery of MO-1 is proved beyond doubt.” 25. Discussing about the factors which have to be borne in mind while relying upon the circumstantial evidence and when a conviction is sought to be based on such evidence, the Hon’ble Supreme Court while deciding the case between Krishna and State Represented by Inspector of Police in Appeal (Crl) No. 841 of 2008, at Para 13 observed as follows: “13. Before adverting to the above-stated arguments advanced by the learned counsel for the parties, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the commission of the offences and the prosecution case entirely rests on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (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 definite tendency unerringly pointing towards guilt of the accused. (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.” 26. Thus, it is clear that when a case rests on circumstantial evidence, such evidence must be cogent and it should unerringly point towards the guilt of the accused. It is for the prosecution, in such cases, to establish that in all human probability, the offence charged must have been committed by the accused alone and by none others. 27. In the case on hand, in the light of the lacunae pointed out, this Court is in full disagreement with the observation of the trial Court that the prosecution established its case beyond all reasonable doubt. 28. In the light of the dictum of law as enunciated above, we are of the view that the trial Court erred in the manner of appreciating the facts of the case and in applying the principles that ought to have been applied regarding the reliability of circumstantial evidence to base conviction. 28. In the light of the dictum of law as enunciated above, we are of the view that the trial Court erred in the manner of appreciating the facts of the case and in applying the principles that ought to have been applied regarding the reliability of circumstantial evidence to base conviction. Therefore, we hold that the judgment of the trial Court is unsustainable and the accused is entitled for acquittal extending benefit of doubt. 29. Resultantly, this Criminal Appeal is allowed. The judgment of the Court of IV Additional District and Sessions Judge (Fast Track Court), Nagarkunrool, in Sessions Case No. 611 of 2013, dated 16.12.2016 is set aside. The appellant/accused is found not guilty of the offence charged and consequently, he is acquitted of the said charge under Section 235(1) Cr.P.C. The appellant/accused shall be set at liberty forthwith if he is not required in any other cases. The fine amount, if already paid, shall be refunded. 30. Pending Miscellaneous Petitions, if any, shall stand closed.