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2024 DIGILAW 600 (TS)

Koppu Sailu v. State of Telangana

2024-08-28

N.TUKARAMJI, P.SAM KOSHY

body2024
JUDGMENT : P. Sam Koshy, J. Heard Mr. T. Pradyumna Kumar Reddy, learned Senior Counsel for the appellants – accused and Mr. Syed Yasar Mamoon, learned Additional Public Prosecutor appearing for the respondent – State. 2. Aggrieved by the judgment of conviction dated 19.10.2016 in S.C.No.117 of 2013 passed by the IV Additional Metropolitan Sessions Judge at L.B. Nagar, Ranga Reddy District, the instant appeal has been filed by the appellants – accused under Section 374(2) of Cr.P.C. 3. Vide the impugned judgment, the Trial Court found the appellants guilty for the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced them to undergo life imprisonment for the offence under Section 302 of IPC with fine of Rs.5,000/- each, in default of such payment of fine, to undergo simple imprisonment for three months; and for the offence under Section 201 of IPC, the accused are sentenced to undergo a rigorous imprisonment for four years with a fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months. 4. The case of the prosecution, in brief, is that on 08.02.2011 a written complaint in Telugu language was lodged with Kothur Police Station of Mahabubnagar by PW.1 namely Smt. Pedaragalla Sailamma, wife of Chinna Mallaiah. In the said complaint, she had stated that her son Pedaragalla Ramesh was married to accused No.2 about eight years back and they were blessed with two sons. However, subsequently accused No.2 is said to have developed an illicit relationship with accused No.1 (brother-in-law of accused No.2’s sister). According to the complainant, about one year back, the accused No.2 left the house along with accused No.1; however, at the interference of the village elders, she came back to the matrimonial home and stayed for two days and again left along with her husband Pedaragalla Ramesh. According to the complainant, after accused No.2 and her husband had gone to Hyderabad about more than a year back, there has been no information about them and in spite of best efforts she has not been able to trace any of them. It was further contended in the complaint that on 31.01.2011, the complainant was informed that PW.2 had seen accused No.2 near Santhosh Nagar at Hyderabad. It was further contended in the complaint that on 31.01.2011, the complainant was informed that PW.2 had seen accused No.2 near Santhosh Nagar at Hyderabad. Accordingly, the complainant along with PW.2 came to Santhosh Nagar and noticed accused No.2 in the company of accused No.1. Initially, the complaint was registered as ‘man missing’ at Kothur Police Station in Cr.No.22 of 2011; however because of jurisdictional issues the matter stood transferred to Meerpet Police Station where the complaint was registered as Cr.No.383 of 2011. The investigating agency at Meerpet Police Station in the course of investigation drew suspicion upon both the accused. Based upon the suspicion, the accused were apprehended on 01.11.2011 where in the course of investigation the two accused confessed of having committed the murder of the deceased Pedaragalla Ramesh and is said to have buried the body on the banks of Meerpet tank besides graveyard. Subsequently, the Meerpet Police Station altered the offence from Section dealing with ‘man missing’ to Section 302 and 201 read with Section 34 of IPC. 5. At the instance of the accused and at the place pointed out by them, the police party arranged for exhumation of the remains of the deceased’s body and accordingly found only the skeleton remains of the deceased. Exhumation was done in the presence of the mediators and later on the charge-sheet was filed and the accused were charged for the offence under Section 302 and 201 read with Section 34 of IPC. 6. The matter came up for trial before the IV Additional Metropolitan Sessions Judge at L.B. Nagar, Ranga Reddy District where eleven witnesses were examined on behalf of the prosecution and two witnesses on behalf of the defence i.e. DW.1 and DW.2. Eleven exhibits were marked by the prosecution, Exs.P1 to P11, and no documents were exhibited on behalf of the defence. Eleven exhibits were marked by the prosecution, Exs.P1 to P11, and no documents were exhibited on behalf of the defence. Subsequently, examination of the accused under Section 313 of Cr.P.C was recorded and after hearing the learned counsel appearing on either side, the impugned judgment of conviction was passed holding the accused guilty for the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and sentenced them to undergo life imprisonment for the offence under Section 302 of IPC with fine of Rs.5,000/- each, in default of such payment of fine, to undergo simple imprisonment for three months; and for the offence under Section 201 of IPC, the accused are sentenced to undergo a rigorous imprisonment for four years with a fine of Rs.1,000/- each, in default to undergo simple imprisonment for three months. 7. At the outset, the learned Senior Counsel for the appellants – accused argued that the prosecution has miserably failed in establishing the offence both under Section 302 at the first instance and under Section 201 subsequently. According to the learned Senior Counsel, the prosecution at the first instance itself has failed to prove the fact that the skeleton which is said to have been exhumed at the instance of the accused persons was one that belonged to the deceased Pedaragalla Ramesh. According to the learned Senior Counsel, there has been no evidence whatsoever collected by the prosecution to medically establish that the skeleton belonged to that of the deceased and the easiest way of establishing the skeleton to be that of the deceased was by conducting a DNA test. This in the instant case has not been done or at least the prosecution has not produced any report of DNA establishing the skeleton to be that of the deceased Pedaragalla Ramesh or indicating that the DNA profile of the skeleton matches with the DNA of the complainant, as the deceased was her son. 8. This in the instant case has not been done or at least the prosecution has not produced any report of DNA establishing the skeleton to be that of the deceased Pedaragalla Ramesh or indicating that the DNA profile of the skeleton matches with the DNA of the complainant, as the deceased was her son. 8. It was also the contention of the learned Senior Counsel that the missing complaint lodged by the complainant itself was after a considerable period of time, as would be evident from the statement of PW.2 and there was no strong and cogent evidence collected by the prosecution that the son of the complainant who is the husband of accused No.2 has in fact died and that the skeleton exhumed at the behest of the accused persons was that of the deceased Pedaragalla Ramesh. It was further contended that even otherwise the Dr. Abjeet Subedar who conducted the autopsy has not been able to substantiate the case of the prosecution and the time of death of the deceased. The exhumation of the skeleton was said to be done six months to one year prior to the date of the post mortem examination which was conducted on 02.11.2011. 9. On the basis of all this, the learned Senior Counsel contended that except for the so-called confession, there is no iota of evidence collected by the prosecution with which the charges leveled against the accused can be said to have been proved beyond all reasonable doubts and prayed for setting aside of the judgment of conviction and also for acquitting the accused of both the charges leveled against them. 10. Per contra, the learned Additional Public Prosecutor opposing the appeal submitted that the nature of evidence collected are even though circumstantial, but the chain of links that is collected by the prosecution in the course of investigation leads to the only conclusion of the deceased to have been killed by the accused and by nobody else. According to the learned Additional Public Prosecutor it is a case where from the statements of PW.1 and PW.2 itself it is evidently clear that the deceased left the parental home along with accused No.2 and it is since then that the whereabouts of the deceased was not known. According to the learned Additional Public Prosecutor it is a case where from the statements of PW.1 and PW.2 itself it is evidently clear that the deceased left the parental home along with accused No.2 and it is since then that the whereabouts of the deceased was not known. Further, accused No.2 has not been able to give proper explanation as to where and when did the husband go or leave her company and also has not given any explanation as to why she did not inform the complainant about missing of the deceased. All of which forces to draw the only inference of the deceased to have been eliminated by the accused alone and not by anybody else. 11. It was also the contention of the learned Additional Public Prosecutor that the exhumation of the skeleton from the graveyard at the behest of the accused also is a ground which substantiates the case of the prosecution and also that of the accused to be the persons responsible for elimination of the deceased and who also to have tried to conceal the body of the deceased so as to make out the offence under Section 302 of IPC. 12. Thus, the learned Additional Public Prosecutor prayed for dismissal of the appeal. 13. Having heard the contentions put forth on either side and on perusal of records, from the witnesses examined on behalf of the prosecution, there is no evidence, much less a strong and cogent proof of the missing person Pedaragalla Ramesh (the son of the complainant and husband of accused No.2) to have died. Secondly, there is no evidence or proof to show that the skeleton which is exhumed at the behest of the accused is that of Pedaragalla Ramesh. Thirdly, there is no medical evidence regarding the DNA profile of the skeleton and also that of the complainant with which it could have been conclusively established that the skeleton was that of the husband of accused No.2 and the son of the complainant. 14. What is necessary to be appreciated at this juncture is that the charges against the accused are under Section 302. Section 201 comes subsequent to the offence under Section 302. 14. What is necessary to be appreciated at this juncture is that the charges against the accused are under Section 302. Section 201 comes subsequent to the offence under Section 302. Having committed the offence under Section 302, the first thing that is necessary is the person to have killed / murdered; secondly the body of the dead person to have been recovered and thirdly the body so recovered being that of the deceased. If these elements are available with the prosecution, only then comes the next question of who would have killed / murdered the deceased or whether the accused are responsible for the murder of the deceased. The offence under Section 201 of IPC comes subsequently where it has to be established by the prosecution that after commission of the murder, the accused persons said to have concealed the body. 15. In the given circumstances, what is paramount to be considered is, did the prosecution at all recover the dead body which in the instant case is said to be only the skeleton. In a situation whether the body was not identifiable or the body was not available, the second course of action available with the prosecution was to get the DNA profile of the skeleton received to match the same with the complainant i.e. the mother of the deceased, to ascertain whether the DNA profile of the skeleton matches with that of the deceased. Admittedly, the prosecution in the instant case has not been able to produce the DNA report to substantiate the aforesaid contention and in the absence of this, the entire case of the prosecution becomes doubtful. Therefore, the judgment of conviction under challenge in the instant appeal is liable to be interfered with, by giving benefit of doubt to the accused persons. 16. It is by now a well settled proposition of law that in a case of circumstantial evidence, the chain of links has to be complete so as to reach to the only conclusion of the offence to have been committed by none other than the accused. The Hon’ble Supreme Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 laying down the basic principles of circumstantial evidence held at paragraph Nos.153 and 154 as under : “153. The Hon’ble Supreme Court in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 laying down the basic principles of circumstantial evidence held at paragraph Nos.153 and 154 as under : “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 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” 17. The Hon’ble Supreme Court further in the case of Majenderan Langeswaran vs. State (NCT of Delhi), (2013) 7 SCC 192 considering the case of conviction based on circumstantial evidence held as under : “The legal issue under consideration was whether the circumstantial evidence presented in the case was enough to sustain the conviction. The court made clear that in cases where the evidence is of a circumstantial nature, certain rules must be adhered to. The court made clear that in cases where the evidence is of a circumstantial nature, certain rules must be adhered to. Firstly, the circumstances from which the conclusion of guilt is drawn must be fully established. This means that each fact that points to the guilt of the accused must be proven individually and beyond a reasonable doubt. Further, the court emphasized that the proven circumstances should be consistent only with the hypothesis of the accused's guilt. This means that the facts established should point towards the guilt of the accused and no one else. Moreover, these circumstances should be of such a conclusive nature and tendency that they exclude every other hypothesis but the one proposed to be proved. In this context, the court cited several past judgments. For instance, in the case of Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71, the court observed that there must be a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The court also referred to the case of Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706, where it was stated that circumstantial evidence, in order to sustain conviction, must be complete, conclusive, and incapable of explanation of any other hypothesis than that of the guilt of the accused. This key principle was reinforced in a series of other cases, such as C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193 , Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , and Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 . In the case of G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593 , the court went a step further and explained that while dealing with circumstantial evidence, a distinction must be made between primary or basic facts and inferences of facts to be drawn from them. This means that the court must not only evaluate whether a fact is proven, but also whether that fact leads to an inference of the accused's guilt.” 18. Taking into consideration the aforesaid judicial precedents and also the factual matrix of the case, we are of the considered opinion that the benefit of doubt should be given to the accused persons as the prosecution had failed to prove its case beyond all reasonable doubts. Taking into consideration the aforesaid judicial precedents and also the factual matrix of the case, we are of the considered opinion that the benefit of doubt should be given to the accused persons as the prosecution had failed to prove its case beyond all reasonable doubts. Thus, the judgment of conviction dated 19.10.2016 in S.C.No.117 of 2013 passed by the IV Additional Metropolitan Sessions Judge at L.B. Nagar, Ranga Reddy District, deserves to be and is accordingly set aside and the accused persons are acquitted of all the charges leveled against them. If the accused are not required in any other case, they be released from the jail forthwith. 19. Accordingly, the instant Criminal Appeal is allowed. 20. As a sequel, miscellaneous applications pending if any, shall stand closed.