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2024 DIGILAW 811 (TS)

Aggu Poshetty v. State of Telangana

2024-09-26

ANIL KUMAR JUKANTI, K.SURENDER

body2024
JUDGMENT : (K. Surender, J.) 1. The appellant was convicted and sentenced to life in prison for the offence under Section 302 IPC vide judgment in S.C.No.265 of 2014 dated 03.08.2015 passed by the I Additional Sessions Judge at Nizamabad, for murdering the daughter of P.W.3 and L.W.5 (not examined). Aggrieved by the same, present appeal is filed. 2. Briefly, the case of the prosecution is that the villagers of Manikbandar saw dead body of an unknown woman on 07.11.2013 in Mosali Kunta Cheruvu at Borgam (K) village shivar (outskirts). Woman was aged around 40 to 45 years. At the scene, there were blood stains near the tank bund, broken bangles and foot wear. The said information was given by the villagers to P.W.1, who was working as Village Revenue Officer (VRO) of Manikbandar Village. The throat of the dead body was found to be slit. P.W.1 having seen the dead body went and lodged complaint with the police, which is Ex.P1, dated 07.11.2013. 3. The police, having taken up investigation went to the scene of offence, photographs were taken and also scene of offence panchanama was conducted. Foot wear pair and broken bangles were collected (MOs.1 to 3). The dead body was sent for the purpose of postmortem examination. After postmortem was conducted by P.W.9 on 08.11.2013, he issued opinion that the cause of death was due to ‘neck cut anteriorally including trachea below hyoid bone’. According to P.W.9, the body was putrefied and death might have occurred three to four days prior to the postmortem examination. Thereafter, the dead body was buried since no one came forward to identify the body or claim body. 4. According to the investigating officer/P.W.13, the telephone number of the deceased while she was alive was collected. The said telephone number is 9908029824. On the basis of the cell phone number, the call data was taken from the service provider. In the call data information provided, the police noticed IMEI No.911129553398350 of the mobile phone, which was used by the deceased. It was found that one person with cell phone number 7702422907 was using the very same IMEI number. It was traced that the cell phone was used by one Aggu Savithri, who is wife of the appellant. Then the appellant was apprehended on 16.07.2014, since he was using the cell phone. It was found that one person with cell phone number 7702422907 was using the very same IMEI number. It was traced that the cell phone was used by one Aggu Savithri, who is wife of the appellant. Then the appellant was apprehended on 16.07.2014, since he was using the cell phone. During interrogation of the appellant, he confessed regarding crime and from the scene of offence, MO.7, which is broken beer bottle with which the alleged injury was caused on the neck of the deceased was seized. Further, at the instance of the appellant, MOs.8, 9, 10 and 11, which are the ornaments of the deceased were also seized. MOs.8 to 11 were identified by the father/P.W.3, taken possession during investigation after orders of Court. P.W.8, who is VRO witnessed the seizure of beer bottle and also the jewellery. MO7, beer bottle was seized from the scene of offence with which, according the prosecution, the appellant injured the deceased. During the evidence of P.W.10, who was the Sub-Inspector, P.W.3 produced MOs. 8 to 11 and they were marked. 5. Mainly on the basis of the cell phone (MO12), which allegedly belonged to the deceased and was used by the accused, and also the jewelry MOs.8 to 11 which were also seized from the house of the appellant, which belongs to the deceased, charge sheet was filed. 6. Learned Sessions Judge relied on the following circumstances: i) P.Ws.1 and 2, who are the Village Revenue Officers found female dead body and lodged complaint. ii) P.W.3, who is the father of the deceased stated that the deceased was missing eight months prior. iii) P.W.3 identified the gold ornaments and photographs of the dead body as that of the deceased, which were seized at the instance of appellant. iv) P.W.5 also stated that the deceased came to the house in the village and left. She was not found thereafter. v) P.W.6 is the police constable who had the photographs of the dead body of deceased and the photographs were identified by the mother/L.W.5(not examined) as that of the deceased. vi) The phone number of the deceased was given by L.W.5(mother) and the call data revealed that the deceased was talking to the appellant on phone and the last conversation was with the appellant. vi) The phone number of the deceased was given by L.W.5(mother) and the call data revealed that the deceased was talking to the appellant on phone and the last conversation was with the appellant. vii) At the scene, MOs.1 to 6, which are the broken bangle pieces, etc., were seized in the presence of P.W.7. viii) The accused confessed in the presence of P.Ws.8 and 10. ix) Appellant produced MO7 broken beer bottle with which deceased was allegedly assaulted and MOs.8 to 11, which are jewellery of the deceased. x) The Doctor who conducted postmortem found that the neck was cut below the hyoid bone and it was three to four days prior to the postmortem examination. 7. Sri P.Indra Prakash, learned counsel appearing for the appellant argued that the entire case of the prosecution appears to be made up. In fact, P.W.5 stated that she could not identify the person who was in the photographs. The version of P.W.6 constable is that he has shown photographs of the deceased to the mother/L.W.5, who was not examined before the Court. The mother of deceased provided phone number and the telephone details were secured. Admittedly, the cell phone number alleged to be that of the deceased was not that of the deceased but another woman by name T.Lakshmi, whereas the deceased name was B.Lakshmi. On the said basis, in fact, bail was granted to the appellant. Counsel finally submits that the prosecution has failed to prove the case beyond reasonable doubt and the circumstances did not conclusively prove the guilt of the appellant. 8. Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor would submit that the last call that was made to the phone number of the deceased was the appellant. In Ex.P13, which is the print out, the address of phone number of the deceased is the very same address of Adilabad. All the other circumstances of the recovery of MO7 beer bottle, which was used to commit murder and also MOs.8 to 11 from the house clearly indicate that it was the appellant, who had committed the crime. 9. Having gone through the evidence, P.W.6, who is the constable stated that he had shown photographs of deceased to the mother namely Boidi Gangavva. However, mother was not examined before the Court. 9. Having gone through the evidence, P.W.6, who is the constable stated that he had shown photographs of deceased to the mother namely Boidi Gangavva. However, mother was not examined before the Court. The photographs which were shown to the said Gangavva were also not produced in the Court, which was admitted by P.W.6 during cross-examination. The photographs which were taken by P.W.4 were marked as Ex.P2 (three photographs). According to P.W.5, who is the relative of the deceased, she stated in her cross-examination that one cannot identify the person in the photographs that were shown by the police though she stated in the chief examination that she identified the person in the photographs as that of the deceased. 10. The evidence of P.W.6 appears to be doubtful. It is not known as to how P.W.6 met the mother of the deceased namely Boidi Gangavva. P.W.6 was working as constable in Mulkanoor whereas the deceased allegedly belongs to Banimi village of Lokeshwar Mandal of Adilabad District. It is not disputed that no complaint was filed by the parents of the deceased or anyone regarding the alleged missing of the deceased. According to P.W.6, the deceased’s mother gave photograph of deceased and also her phone number. As seen from the photograph as admitted by the witnesses, one cannot identify the photograph of the dead body since it was putrefied. The actual photograph given by the mother was not filed by the prosecution during trial. No reason is given as to why the original photograph of the deceased was not filed though collected. The version of the prosecution regarding identify of the dead body becomes doubtful in the said circumstances. The dead body was found on 07.11.2013 and cremated on 10.11.2013. The date on which P.W.6 met the mother of the deceased-L.W.5 is also not indicated. The application given to the service provider for the SIM card was not collected to verify the photographs on the application made, since the cell phone number of one T.Lakshmi was taken when the name of the deceased is B.Lakshmi. No samples were collected from the dead body or samples preserved to help in any DNA profiling to know about the parents of the deceased. No samples were collected from the dead body or samples preserved to help in any DNA profiling to know about the parents of the deceased. In the absence of the prosecution filing the photograph that was given by the mother or the application that was made to the service provider on which the photograph of the deceased would be available, the identification of the dead body becomes doubtful in view of the body not being in a position to identify due to putrefication. 11. According to the police, the appellant was identified on the basis of last call being made to him from the phone of the deceased. Ex.P14 are the cell phone details of 7702422907. The details are from 15.10.2013 to 26.12.2013. The last call, according to ExP14 made was on 30.10.2013 at 16.41.24 hours. Thereafter, there are no phone calls. The dead body was found on 07.11.2013 and postmortem was conducted on 08.11.2013. According to the postmortem Doctor/P.W.9, death occurred three to four days prior to postmortem examination. Taking statement of doctor into consideration, the death would have occurred on 4th or 5th of October. The last phone call was on 30.10.2013 and what happened between 30.10.2013 to 04.11.2013 i.e, nearly six days is not explained by the prosecution. 12. The prosecution has not collected the application of the cell phone number allegedly belonging to the deceased to prove that the cell phone number was used by the deceased. The appellant’s phone number was standing in the name of his wife. 13. The prosecution has relied on the discovery of MO7, which is broken beer bottle with which the alleged murder was committed. It is highly improbable that from a open place, broken beer bottle would be seized that too after nearly 8 ½ months. The incident of death is approximately on 04.11.2013 and accused was arrested on 06.07.2014. It is strange that during scene of offence panchanama beer bottle was not found. The said scene of offence panchanama was conducted on 08.11.2013 and MOs.1 to 6, which are the chappal and broken bangles were seized. 14. The prosecution also failed to collect the details from where the mobile phone MO12 was purchased. It was not demonstrated before Court that MO12 was with IMEI No.91129557398318, as claimed by prosecution. The prosecution failed to prove beyond reasonable doubt regarding the phone used by the deceased and the accused. 14. The prosecution also failed to collect the details from where the mobile phone MO12 was purchased. It was not demonstrated before Court that MO12 was with IMEI No.91129557398318, as claimed by prosecution. The prosecution failed to prove beyond reasonable doubt regarding the phone used by the deceased and the accused. It is not the case of the prosecution that the call details have any of the phone numbers of the relatives of the deceased. There are no phone calls made to mother, father, or cousins who were examined during trial. As already discussed, the mobile number of the deceased was taken from the mother of the deceased, who was not examined and the application for the said SIM card was also not produced by the prosecution. 15. The other incriminating circumstance is of the jewellery MOs.8 to 11 that were seized from the house of the appellant. Though it was stated by P.Ws.3 and 5 that the jewellery belonged to the deceased, however, no evidence was collected to show from where the jewellery was purchased or to substantiate that any of the jewellery was worn by the deceased during her life time by producing photographs. The deceased was aged around 40 to 45 years and according to the version projected by the prosecution and the evidence of P.W.3/father and cousin, eight months prior to her death, the deceased went to Anksapuram village to see her relative but never returned. Surprisingly, there are no details given regarding the deceased such as marital status, children etc.. In the absence of the details of the jewellery being given, the only recovery aspect of the jewellery from the possession of the appellant cannot form basis to say that it was the appellant who had committed murder of the deceased. 16. The evidence of the prosecution is highly discrepant. 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, (1984) 4 SCC 116 , 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. 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] “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. The prosecution case is not only unconvincing but the version given by the prosecution regarding the phone number of the deceased, the actual photograph of the deceased not being filed, the dead body not being in a position to be identified, all these aspects as discussed above, casts any amount of doubt regarding the prosecution case being correct. Accordingly, benefit of doubt is extended to the appellant. 18. Criminal Appeal is allowed setting aside the conviction recorded against Appellant in S.C.No.265 of 2014 dated 03.08.2015. Since the appellant is on bail, his bail bonds shall stand cancelled.