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2024 DIGILAW 430 (TS)

Erra Sailu v. State of Telangana

2024-07-02

P.SAM KOSHY, SAMBASIVA RAO NAIDU

body2024
JUDGMENT : (P. Sam Koshy, J.) 1. Challenging the judgment of conviction dated 23.01.2015 passed by the VIII Addl. Dist. & Sessions Judge at Medak in S.C. No.269 of 2013; the present appeal has been preferred by the appellant - accused under Section 374(2) of Cr.P.C. 2. Heard Mr. Palle Sriharinath, learned counsel for the appellant and Ms. Shalini Saxena, learned Additional Public Prosecutor appearing for the respondent-State. 3. Vide the impugned judgment, the appellant herein has been found guilty of having committed the offence punishable under Section 302 of Indian Penal Code, 1860 (for short, 'IPC') and has been ordered to undergo imprisonment for life with fine of Rs.5,000/-. 4. The brief facts of the case are that on 19.05.2013 the complainant D.Chennaiah (PW.1) lodged a complaint at Police Station, Tekmal stating that on the previous night i.e. on 18.05.2013 his sister Dandugula Durgamma (hereinafter, the 'deceased') a deserted lady from her husband who has staying with her brother, the complainant, had gone to sleep after having dinner. However, on the early morning of 19.05.2013, at around 6:00 AM when the complainant had gone to attend nature call, he found the deceased lying on the field with face down. He immediately went to her rescue, but found that she was dead with strangulation marks over her neck and her tongue had also come outside and it was pressed in between the teeth. 5. The police authorities registered the complaint as Cr.No.42 of 2013 for an offence under Section 302 of IPC. After completion of the inquest, the body was sent for autopsy at the Government Community Hospital, Jogipet and the investigation started. During the course of investigation, LW.8 and LW.9 along with the appellant had appeared before the Police Station and narrated the story that the appellant herein had committed the murder of the deceased by strangulation on the intervening night of 18 & 19.05.2013. On the basis of the confessional statement, the appellant also made available one Nylon rope from the village outskirts from the nearby bushes which is said to have been used in commission of the offence. Based upon the said confessional statement and the recovery so made, a charge-sheet was filed and the matter was put to trial before the Sessions Court i.e. the VIII Addl. Dist. & Sessions Judge at Medak where the case was registered as S.C. No.269 of 2013. 6. Based upon the said confessional statement and the recovery so made, a charge-sheet was filed and the matter was put to trial before the Sessions Court i.e. the VIII Addl. Dist. & Sessions Judge at Medak where the case was registered as S.C. No.269 of 2013. 6. In all, the prosecution examined seven witnesses and marked ten exhibits. There was no evidence led on behalf of the defence, neither was there any document marked in defence. Later on examination of the appellant was done under Section 313 of Cr.P.C and finally the impugned judgment was passed convicting the appellant for the offence under Section 302 of IPC and was sentenced to imprisonment for life with fine of Rs.5,000/-. It is this judgment which is under challenge in the present appeal. 7. Learned counsel for the appellant challenging the impugned judgment contended that the entire case is based on the so-called confessional statement made by appellant before LW.8 and LW.9. However, from plain perusal of the records and pleadings, it would reveal that the alleged confessional statement is not admissible as it was all made in presence of the police. Even otherwise the prosecution has failed to prove its case beyond all reasonable doubts and that there were no cogent strong materials collected in the course of investigation so as to establish without any doubt that it was the appellant alone who had committed the offence of murdering the deceased by strangulating her using a Nylon rope. 8. It was also the contention of the learned counsel for the appellant that whatever evidence has been collected by the prosecution in the course of investigation and those which have been adduced before the Trial Court are neither acceptable, nor an admissible piece of evidence and the prosecution in fact has not been able to establish real motive on the part of the appellant in killing the deceased. It was further contended that the complainant in his first complaint had not given any suspicion upon the appellant herein of being involved in commission of the offence. Further, the prosecution has also failed in collecting chain of links with which it could said that it was the appellant alone who could have committed the said offence. It was further contended that the complainant in his first complaint had not given any suspicion upon the appellant herein of being involved in commission of the offence. Further, the prosecution has also failed in collecting chain of links with which it could said that it was the appellant alone who could have committed the said offence. Apart from being no motive, there is no evidence so as to prove the last seen theory, nor is there any circumstantial evidence collected with which the appellant could be connected to the commission of said offence. 9. Learned counsel for the appellant contended that even the so- called confessional statement made before LW.8 and LW.9 was at a very belated stage i.e. after a long gap of time which itself would reduce the sanctity of the said alleged extra judicial confession. Moreover, LW.8 himself was not examined before whom the extra judicial confession was made and PW.3 i.e. LW.9 in fact was not shown as a witness to the extra judicial confession when the charge-sheet was filed, rather was there any circumstantial witness which further weakens the case of the prosecution. 10. Another ground which was harped upon by the learned counsel for the appellant was the evidence of PW.7 where there was an admitted large correction of dates made so far as the prosecution case is concerned and this by itself establishes material contradictions and omissions in the evidence of prosecution side. 11. Thus, for all the aforesaid reasons, the learned counsel for the appellant prayed for setting aside the judgment of conviction and also prayed for acquittal of the appellant. 12. Per contra, the learned Additional Public Prosecutor has opposed the appeal on the ground that the evidence of PW.3 proves the case substantially so far as the appellant who had committed the offence. 13. According to the learned Additional Public Prosecutor it is a case where the appellant seems to have eliminated the deceased. As of late, she was not properly responding to his telephone calls, thereby, the appellant developed a feeling that she has now developed relationship with someone else. It was also the suspicion towards the deceased because of the fact that whenever the appellant tried to call the deceased, the phone was shown on the engage mode and even when she picked up the call, she would not give proper response and tried to avoid. It was also the suspicion towards the deceased because of the fact that whenever the appellant tried to call the deceased, the phone was shown on the engage mode and even when she picked up the call, she would not give proper response and tried to avoid. In addition, the appellant has also in the course of confession stated that the deceased had started demanding money for the purpose of marriage of her daughter which also must have given rise to a thought in his mind to eliminate the deceased so as to avoid all these situations. 14. Referring to the deposition of PW.3, the learned Additional Public Prosecutor contended that PW.3 was also present when the appellant had made confession before LW.8 and that there is no reason why PW.3 who is otherwise an independent witness would speak against the appellant and hence his evidence cannot be discarded. Hence, the learned Additional Public Prosecutor prayed for dismissal of the appeal. 15. Having heard the contentions put forth on either side and on perusal of records, from plain reading of the judgment of conviction it appears that the Trial Court has heavily relied upon the evidence of PW.3 before whom the so-called extra judicial confession was made. It also appears that the Trial Court got impressed with the deposition of PWs.1 and 2 while accepting the case of the prosecution and holding the appellant guilty of the offence. So far as the credibility of PW.3, the so-called eye witness before whom the extra judicial confession was made, first of all, the charge-sheet that has been filed as early as on 24.06.2013 does not show PW.3 i.e. LW.9 as a witness to the extra judicial confession, rather would show only as a circumstantial witness. The only witness to the extra judicial confession was LW.8 who in fact has not been examined by the prosecution and no reasons or explanation for not examining LW.8 was available. 16. Further, it would also reveal that from the statement of LW.8 under Section 161 there does not seem to have been any statement made of PW.3 being available, nor is such a mention made anywhere in the charge-sheet so as to cite PW.3 as a witness to the extra judicial confession which also further gives rise to a great element of doubt on the credibility of the evidence of PW.3. So far as the deposition of PW.1 is concerned, the first complaint that he lodged on 19.05.2013, reading of it itself clearly establishes that it was against unknown person and that PW.1 had not made any such suspicion towards the appellant herein linking towards the commission of offence. It is also an admitted fact the said suspicion towards the appellant ought to have been there for PW.1 as he contends that the deceased told him of the appellant herein having threatened on earlier occasion. Thus, there appears to be a great element of improvement in the deposition of PW.1 also which gives rise to doubt the case of the prosecution. 17. As regards PW.2 is concerned, since he is a close relative of PW.1 and the statement also would show that it has been given in a mechanical manner which therefore does not build enough evidence of accepting the case of the prosecution. Apart from the aforesaid discrepancy, when we look into the factual matrix of the case, except for the aforementioned so-called extra judicial confession there does not seem to be any chain of links collected by the prosecution against the appellant herein. 18. One of the most crucial lacunas on the part of the prosecution is non-adducing the call data details of the appellant and that of the deceased and also the evidence of prosecution to find out the location of the appellant at the scene of occurrence from the mobile towers to fix that he was available near the scene of occurrence on the fateful day. The rope which was recovered at the instance of the appellant also was not sent for expert's opinion so far as the fingerprint expert's opinion. 19. Another aspect which needs to be considered is the fact that the so-called extra judicial confession statement made by the appellant does not have the signature of PW.3. Though in his deposition PW.3 has said that the inspector of police had taken sign on the paper, yet there was no signature seen on the confessional statement. Further, he also admits that the inspector of police had written his statement which again was not available in the case diary or in the paper book, nor was it accepted before the Trial Court which would further weaken the case of the prosecution. 20. Further, he also admits that the inspector of police had written his statement which again was not available in the case diary or in the paper book, nor was it accepted before the Trial Court which would further weaken the case of the prosecution. 20. From the alleged confessional statement made by the appellant it goes to show that the appellant and the deceased are maintaining a physical relationship for quite some time and the relationship between the two seem to be too cordial. Off and on they were indulging in sexual intercourse and all of which was with the consent of the deceased without any coercion or pressure. Therefore, the alleged motive that the appellant had also does seem to be quite properly founded. 21. With the aforesaid factual matrix and the discrepancies and lacunas in the prosecution case as discussed in the preceding paragraphs, we are of the considered opinion that the prosecution does not seem to have proved its case beyond all reasonable doubts and the benefit of which has to go in favour of the appellant. In view of the same, the judgment of conviction becomes unsustainable and the same is accordingly set-aside/quashed and the appellant stands acquitted from the charges leveled against him. If the appellant is in jail, he may be released forthwith. 22. Accordingly, the present appeal is allowed. No costs. 23. As a sequel, miscellaneous applications pending if any, shall stand closed.