Appeal
Appeal against the dismissal order of High Court
1. The instant appeal by special leave arises out of the judgment and order dated 20th March, 2019, passed by the Division Bench of the High Court of Telangana at Hyderabad, dismissing the Criminal Appeal No. 1078 of 2016 preferred by the appellant and affirming the judgment dated 13th October, 2016 rendered by the Family Court-cum-VII-Additional Sessions Judge, Mahabubnagar.
Eight persons were tried for Murder
2. Eight accused persons were put up for trial. The appellant (A1) and two co-accused (A2 and A3) were charged and tried for the offences punishable under Sections 384, 364, 302 and 201 of the Indian Penal Code, 1860, whereas the remaining co-accused (A4-A8) were charged and tried for the offences punishable under Sections 302, 201 read with Section 109 IPC.
Trial court convicted A1, A2 and A3 and acquitted others
3. Vide judgment dated 13th October, 2016, the trial Court acquitted A4 to A8 of all the charges. The appellant (A1) and the two co-accused (A2 and A3) were convicted and sentenced as below:
(i) Section 302 IPC: Life Imprisonment and a fine of Rs. 5,000/- (in default to undergo Simple Imprisonment for six months)
(ii) Section 364 IPC: Rigorous Imprisonment for 10 years and a fine of Rs. 5,000/- (in default to undergo Simple Imprisonment for six months).
(iii) Section 384 IPC: Rigorous Imprisonment for 3 years and a fine of Rs. 5,000/- (in default to undergo Simple Imprisonment for six months).
(iv) Section 201 IPC: Rigorous Imprisonment for 5 years and a fine of Rs. 5,000/- (in default to undergo Simple Imprisonment for six months).
Common appeal preferred before the High Court and the same was dismissed hence this appeal
4. A common appeal was preferred by the appellant herein(A1), A2 and A3, before the High Court of Telangana assailing the judgment of the trial Court. The Division Bench of the High Court of Telangana proceeded to uphold the conviction and sentence awarded to the appellant herein and at the same time, acquitted. A2 and A3 of all the charges vide judgment dated 20th March, 2019 which is the subject matter of challenge in this appeal.
Facts
Allegation: Deceased developed an affair with the wife of A1 and eloped later on wife returned but deceased was missing
5. As per the prosecution case, K. Nagesh (the deceased) and Smt. Shivaleela @ Wadla Anjali, wife of the appellant herein (A1), developed an extra-marital affair with each other. On 7th January, 2013, they eloped from their village Thipraspally, District Rangareddy, Telangana. Smt. Shivaleela @ Wadla Anjali returned to the village after four days, but K. Nagesh failed to turn up. Consequently, on 8th January, 2013, the mother of K. Nagesh namely, Smt. B. Laxmamma (PW-1) lodged a missing complaint at Police Station Utkoor, Telangana.
Despite A1 receiving compensation of three lakh through panchayat but not satisfied and planned to eliminate the deceased
6. Based on the said complaint, V. Sampath, Sub-Inspector, PS Utkoor registered a case, under the caption ‘man missing’ and initiated an enquiry. It is stated that during the course of enquiry, it came to light that K. Nagesh and Smt. Shivaleela @ Wadla Anjali, wife of the appellant (A1) were involved in an extra-marital affair, and a panchayat was convened in relation thereto in the village. The appellant (A1), being the husband of Smt. Shivaleela, and the other accused persons threatened the family members of K. Nagesh in the panchayat and under the fear of retribution, the family members agreed to pay a compensation of Rs. 3,50,000/- to the appellant (A1) within 10 days. It is further the case of the prosecution that the appellant (A1) was not satisfied with the above resolution and thus, he hatched a plan to eliminate K. Nagesh.
A1 along with other accused strangled and killed the deceased further destroy his identity by crushing his face
7. In furtherance of this nefarious design, the appellant (A1) contacted his wife (Smt. Shivaleela) over phone and asked her to return to the village to which she agreed. The appellant was in continuous contact with his father-in-law (G. Hanumanth) who conveyed that Smt. Shivaleela (wife of the appellant) and K. Nagesh would be reaching Raichur railway station on 11th January 2013. In order to carry out the plan to eliminate K. Nagesh, the appellant (Al), along with his brother (A2) on one motorcycle and his brotherin-law (A3) on another proceeded to Raichur railway station. The accused (A4 to A8) were also informed about the arrival of K. Nagesh and accordingly, they too proceeded to Raichur railway station in a car. At about 00:30 hours, K. Nagesh and Smt. Shivaleela, wife of the appellant (Al), got down at Raichur railway station. K. Nagesh proceeded to Raichur bus stand in an auto rickshaw. He was pursued by A1, A2, and A3, who abducted him and took him towards Shakthi Nagar on their motorcycles. A1 directed A4, A5, A6, A7 and A8 to return. A1, A2 and A3 disrobed K. Nagesh. A1 and A2 strangled and killed him with a towel brought by A1. The assailants then crushed the face of K. Nagesh by a big boulder so as to destroy his identity. The dead body was concealed in a nearby water channel. The clothes worn by K. Nagesh (the deceased) were tied up in the towel used to murder him and were thrown in the Krishna River near Devasugur.
Police recorded the 161 crpc statement of PW.6 and confessional statement of A1 and altered the FIR into murder
8. On 19th January, 2013, the family members of the deceased, on a demand made by the accused persons paid a penalty of Rs.3,50,000/- to the appellant (A1). On 8th February, 2013, the appellant (Al), along with his family members went to the house of his in-laws at Makthal and divorced his wife Smt. Shivaleela and also took an undertaking from her. When A1 came to know about a case having been registered at PS Utkoor regarding the disappearance of K. Nagesh, out of fear, he approached P. Ramalingappa (PW-6), a resident of the village, and prayed for being provided protection. V. Sampath, Sub-Inspector, PS Utkoor purportedly recorded the statement of PW-6 and based thereupon, he proceeded to apprehend the accused (A1) and recorded his confessional statement. Based on the confession so made by the appellant herein (A1), the missing person complaint was converted into an FIR7 for the offences punishable under Sections 384, 364, 302, 201 read with Section 109 IPC.
During further investigation the remains of deceased were discovered and sent to forensic
9. Further investigation of the case was assigned to N. Venkateshwarla, Circle Inspector of Police, Makthal8 (PW-22). All the accused persons were arrested in furtherance of the confession made by the appellant (A1). During the course of investigation, the Investigating Officer (PW-22) claims to have recorded the information memo/confessional panchnama of the appellant (A1) and thereafter, he forwarded a letter to the S.P., Mahabubnagar seeking permission to visit the crime scene located at Egsanhally village of Raichur district. A requisition was sent to H.B. Sanamani, PSI, Raichur Rural (PW-21) for arranging local panchas to conduct the spot panchnama. Accordingly, PW-21 arranged two local panch witnesses namely Javeed (PW-9) and Baswaraj Patil (PW-19). The Investigating Officer (PW-22) thereafter, proceeded to the crime scene and prepared the spot panchnama in the presence of Javeed (PW-9), Mallikarjun (PW-16), V. Venkataiah (PW-17) and Baswaraj Patil (PW-19). The crime scene was photographed by K. Papireddy (PW-7). No human dead body was found at the spot. However, the Investigating Officer (PW-22) noticed some remains viz hair, lower jaw embedded with teeth, three rib bones, one piece of underwear(MO5), two shirt buttons (MO1), one jeans pant button (MO2) and a boulder (MO4) at the spot which he seized vide seizure panchnama10 dated 19th March, 2013 with the assistance of Dr. Syed Irshad, Medical Officer (PW-15). The material objects i.e. the bones and hair etc. found at the spot were packed by the Medical Officer (PW-15), who handed the same over to the Investigating Officer (PW-22). He in turn forwarded these human remains along with the seized material objects to the FSL.
DNA report indicated that the remains matched with the mother of deceased
10. The DNA profiling report was received which purportedly indicated that the DNA profile of the skeletal remains collected from the crime scene matched the DNA profile (blood) of Smt. B. Laxmamma (mother of the deceased) (PW-1).
Final report filed against A1 to A8 for section 302 IPC and prosecution before trial court examined 22 witnesses, exhibited 42 documents and 23 material objects
11. Upon concluding the investigation, the Investigating Officer (PW-22) proceeded to file a charge sheet against A1 to A8 for the offences mentioned above. The offence punishable under Section 302 IPC being exclusively sessions triable, the case was committed and transferred for trial to the Court of Sessions Judge, Mahabubnagar vide committal order dated 28th March, 2014. The trial Court framed charges against the accused persons (A1 to A8) for the above offences. The accused persons pleaded not guilty and claimed trial. In order to bring home the charges, the prosecution examined as many as 22 witnesses and exhibited 42 documents and 23 material objects.
Trial convicted A1 to A3 and acquitted A4 to A8
12. The accused, upon being questioned under Section 313 of the Code of Criminal Procedure, 1973 denied the prosecution’s allegation and claimed to be innocent. Upon hearing the arguments advanced by the prosecution and defence, and after appreciating the evidence available on record, the trial Court vide judgment dated 13th October, 2016, proceeded to acquit A4 to A8 of the charges. A1(the appellant herein), A2 and A3 were convicted and sentenced in the above terms.
Hon’ble High Court Division Bench uphold the conviction
13. The Division Bench of the High Court of Telangana in appeal reversed the conviction of A2 and A3 and acquitted them while affirming the conviction and sentence awarded by the trial Court to the appellant (A1). Aggrieved, the appellant (A1) is before us in the present appeal by special leave.
Discussion and Conclusion
18. We have given our thoughtful consideration to the submissions advanced at the bar and have gone through the material placed on record.
Case is purely based on circumstantial evidence
19. There is no dispute that the case of prosecution is based purely on circumstantial evidence, since no witness claims to have seen the alleged incident wherein K. Nagesh (the deceased) was murdered.
20. The law is well-settled that in a case based purely on circumstantial evidence, the prosecution is under an obligation to prove each and every link in the chain of incriminating circumstances beyond all manner of doubt and that the circumstances so relied upon by the prosecution should point unequivocally towards the guilt of the accused and should be inconsistent with the guilt of anyone else or the innocence of the accused. Only in the event of the complete/unbroken chain of circumstances being proved by cogent and clinching evidence which does not admit of any other inference, otherwise that of the guilt of the accused, the conviction can be recorded. Reference in this regard may be made to Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], the relevant extract of which reads as under: –
“para. 153 and 154”
Discussion of circumstances in this case
21. Having noted the principles governing the case based purely on circumstantial evidence, we now proceed to discuss the case set up by the prosecution in order to bring home the guilt of the accused appellant.
22. In view of the detailed discussion of the facts enumerated above, it is apparent that the following circumstances were portrayed by the prosecution in its endeavour to establish the charges against the accused appellant: –
(i) Motive, i.e. to say that K. Nagesh (the deceased) and Smt. Shivaleela, the wife of the appellant (PW-8) were involved in an illicit extra-marital affair which fueled the appellant herein with such animosity that he hatched a plan to eliminate K. Nagesh (the deceased).
(ii) Incriminating recoveries in the form of skeletal remains of the deceased and the clothes and other articles such as a cover containing an amount to a tune of Rs. 3,50,000/- and motorcycle used in commission of the crime allegedly recovered in furtherance of the information provided by the appellant (A1) to the Investigating Officer (PW-22).
(iii)The DNA profiling report, which establishes that the profiling of the blood collected from the mother of the deceased (PW-1) matched with the DNA profile of the allegedly recovered skeletal remains.
Motive: No utterance of a single word by the witnesses about the so called illicit affair
23. Firstly, we proceed to consider the theory of motive. On going through the entire evidence led by the prosecution, we do not find an utterance of a single word by any of the prosecution witnesses including the mother of the deceased (PW-1), the father of the deceased (PW-2), that there was any complaint of an illicit affair between K. Nagesh (the deceased) and Smt. Shivaleela, the wife of the appellant.
Theory of motive not established by credible evidence
24. The prosecution alleged that owing to this illicit affair, the appellant got convened a panchayat wherein, he demanded and extorted a sum of Rs. 3,50,000/- from the family members of the deceased. However, such a suggestion was totally denied by PW-1 and PW-2. Both these witnesses stated that it was the chit amount collected by their son (the deceased) which was paid by them. Further, on going through the testimony of the Investigating Officer (PW-22), we find that even he did not state that any information was provided to him regarding the so-called illicit affair between the deceased and the wife of the appellant (PW-8) during the entire course of investigation. The only evidence provided regarding this aspect of motive, as per the testimony of Investigating Officer (PW-22) was in the form of a photograph (Exhibit P-37). However, the fact remains that even the parents of the deceased (PW-1 and PW-2) were not made to identify this photograph. Thus, the theory of motive attributed by the prosecution to the accused appellant could not be established by any credible evidence.
Recovery of skeletal remains based on the confession
25. The second and most vital link of circumstantial evidence sought to be relied upon by the prosecution was the alleged discovery and recovery of the skeletal remains of the deceased in furtherance of the information provided by the accused appellant (A1) to the Investigating Officer (PW-22).
Section 27 IEA: Recovery shall be voluntary and I.O is required to prove the contents of the confessional memo to the extent of facts discovered
26. The law is well settled by a catena of judgments of this Court that the information under Section 27 IEA which leads to discovery of an incriminating material/evidence must be proved by the Investigating Officer as being voluntary and uninfluenced by threat, duress or coercion. The Investigating Officer is also required to prove the contents of the information/confessional memo to the extent they relate to the facts discovered.
Judgment relied by the Apex court
27. This Court in the recent judgment of Babu Sahebgouda Rudragoudar v. State of Karnataka [(2024) 8 SCC 149] , while referring to the earlier judgments on this point, examined the aspect regarding the standard of proof of information provided by the accused to the Investigating Officer under Section 27 IEA in the following terms:-
“paras: 60 to 67”
29. On going through the aforesaid version of Investigating Officer (PW-22), it is clear that the accused appellant (A1) was produced before him by V. Sampath (LW-24) (IO in the ‘man missing’ case). The said LW-24 was not examined by the prosecution in this case. Pursuant to production of the accused, the Investigating Officer (PW-22) proceeded to interrogate him and allegedly recorded his confession/information followed by the so called recovery of the skeletal remains of the deceased.
I.O deposition did not prove the words spoken by the accused regarding the place of concealment of dead body
30. From the aforesaid version of PW-22, it can clearly be discerned that neither did the witness narrate the words spoken by the accused regarding the place of concealment of the dead body of K. Nagesh nor that the said fact/place was exclusively in his knowledge and that he could get the same recovered. Rather, there is a very startling fact which is evident from the aforesaid extract of the Investigating Officer’s evidence inasmuch as the Investigating Officer did not utter a single word that the accused also accompanied him and the panch witnesses for pointing out and getting recovered the skeletal remains and the clothes purported to be of the deceased.
Panch witness did not deposed that the accused lead them to the place of recover
32. In addition, thereto, we may also refer to the testimony of Dr. Syed Irshad, Medical Officer (PW-15) who also admitted in his cross-examination that police and other persons had shown him the skeletal remains. The panch witness (PW-9 and PW-19) also did not make a whisper regarding the accused, leading them to the place from where the incriminating articles were recovered.
Recovery not proved by the prosecution
33. Hence, we have no hesitation in holding that neither was the disclosure allegedly suffered by the accused before the Investigating Officer (PW-22) under Section 27 IEA proved as per law nor did the prosecution establish that the discovery was made on being pointed out by the accused. Since the very factum of the discovery/recovery of incriminating skeletal remains was not proved by proper evidence, the same cannot be linked to the accused appellant.
PW.1 did not spoke about the blood sample collected by the I.O
34. The third link of circumstantial evidence is that the recovered skeletal remains were purportedly matched with the blood of the mother of the deceased (PW-1) by the process of DNA profiling. However, as has been noted above, PW-1 did not utter a single word that her blood sample was collected by the Investigating Officer (PW-22) during the course of the investigation. Also, even Dr. Syed Irshad, Medical Officer (PW-15) did not state that he collected the blood samples of PW-1. Thus, the DNA profiling report pales into insignificance and cannot be treated as an incriminating circumstance against the accused.
Incriminating circumstances not proved against the accused
35. As a consequence of the above discussion, we have no hesitation in holding that none of the incriminating circumstances portrayed by the prosecution in its endeavour to bring home the charges against the accused appellant were established by cogent and clinching evidence, and therefore, the conviction of the accused appellant as recorded by the trial Court and affirmed by the High Court cannot be sustained.
36. Resultantly, the impugned judgments dated 13th October, 2016 and 20th March, 2019 are hereby quashed and set aside. The accused appellant is acquitted of the charges. He is in custody and shall be released forthwith, if not wanted in any other case.
37. The appeal is allowed accordingly.
Party
Wadla Bheemaraidu … Appellant(S) versus State of Telangana … Respondent(S) – Criminal Appeal No(S). 573 of 2023 – 2024 INSC 923 – December 03, 2024.
