Allowed

Mirza Zakki Baig, Nirmal Dt., v. the State of Telangana, Rep Pp.

Telangana HC21 Nov 2024CRLA/1317/2016

Case brief

AI extract

What is this about?

The High Court allowed criminal appeals filed by three appellants convicted for murder and attempted robbery. Convicted by the lower court on circumstantial evidence and recoveries allegedly effected at the instance of accused persons, the High Court found the recoveries improbable and uncorroborated. The high court held that the evidence was fabricated and could not sustain the conviction, thereb

What did the court decide?

Impugned judgment dated 30.11.2016 set aside; appellants in jail released forthwith; bail of appellant No.3 cancelled.

Mirza Zakki Baig, Nirmal Dt., Vs the State of… — Murder and Culpable Homicide | Telangana HC (2024)

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[^341e ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANT!

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CRIMINAL APPEAL NOS: 1317 OF 2016 AND 1116 OF 2017

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CRIMINAL APPEAL NO: 1317 OF 2016

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BAIL SLIP : The Appellant / Accused was directed to be released on bail by the Order of the High Court dated 10-06-2024 made in l.A. No. 1 of 2023 in Crl.A. No. 1317 of 2016

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Appeal under Section 374 (2) of Cr.P.C. against the Judgment dated 30-1 1- 2016 made in S.C. No. 67 of 2015 on the file of the Court of the lV Additional District and Sessions Judge-Cum-Judge, Family Court at Adilabad.

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Between:

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Miza Zakki Baig, S/o. Mirza Mohammad Baig, Age 36 years, Occ Fruit Business, Rl/o. Pangally, Nirmal, Nirmal District, Telangana State

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...Appellant / A3

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AND

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The State of Telangana, Rep by its Public Prosecutor, High Court of Judicature at Hyderabad, for the State of Telangana and the State of AMhra Pradesh

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...Respondent

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Counsel for the Appellant Sri N Naveen Kumar

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Gounsel for the Respondent The Additional Public Prosecutor

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CRIMINAL APPE^{AL NO:1116 OF 2017}

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AppealunderSection3T4(2)ofCr.P.C.againsttheJudgmentdated30-112016 made in s.c. No.^{67 0t 2015 0n the file of the courtof the lV AdditionalDistrict} and Sessions Judge-Cum-Judge,^{Family Courtat Adilabad.}

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Between:

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'1 . Patharla Ramu, S/o. Digamber, Aged about 32 years, Occ' Coolie,^Caste Tenugu, R/o. Kolibanda,^{Nirmal, Nirmal District}

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Bojja Ramesh, S/o.^{Muthyam,Occ Coolie,Caste Mudiraj' Rl/oDyagawada,} Nirmal, Adilabad District

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...APPellant / Accused^{No. I and 2}

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AND

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The State of Telangana,^{Rep. by its Public Prosecutor, High Courtof} Judicature at Hyderabad

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... Respondent

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Counsel for the Appellants : Sri Nazeer Khan

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Counsel for the Respondent : The Additional Public^Prosecutor

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The Court delivered the following^{Common Judgment:}

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THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR

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CRIMINAL APPEAL Nos.1317 of 2076 and 1116 OF 2OLz COMMON JUDGMENT:^(per Hon'ble Sri Juslice K.Surender)

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l. These appeals are filed aggrieved by the judgment dated 3O.1I.2016 in S.C.No.67 of 2015, passed by the IV Additiona,l District and Sessions Judge-cum-Judge, Family Court at Adilabad, convicting the appellants /accused Nos.1 to 3 for the offence under Section 3O2 of IPC and sentenced to undergo imprisonment for life. Further, they were convicted for the offence under Sectio., '384 of IPC and sentenced to qndergo rigorous imprisonment for three years.

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Heard iearned counsel appearing on behalf of the appellants and iearned Additional Public Prosecutor appearing on behalf of respondent-State.

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PW1 lodged a written iomplaint on 30.08.20 14, at 09.00 hours stating that he is a native of Gajulapet, Nirmal and he along with his^younger brother Mekala Mahesh are : residing at Pakpatla viliage, by attending agricultural labour work. Their parents are staying at Gajulapet, Nirmal. His father namely Mekala Narsirriulu had been working as a

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worker in todcly shop^{No.5 on a job of coilection of toddy} bottles for the^{past four years..On 30.08.2014,at about 08 00} hours, his relative^{namelyParsa Bhumanna informed him on} phone that his father^{(deceasedNo.1) was killed by some} unknown^{personsand the dead body was found lying on the} piatiorm of the shop in^{front of toddy shopNo 5 and stated} that there is another^{dead body who was alsomurdered on} the other side^{platformof anothershop.}

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Basing on the said complaint,^{the Police registered a} case and went to the^{scene of offence and conductedscene of} offence^{panchanama and inquest was also conducted on the} same date. The dead bodies^{were sent for PostMc'rtem} Examination (PME). Autopsy^{wasconducted inthe} Government Hospital by^{PWs.il and 12. PW11 condr.rcted} autopsy of deceased^{No.2 and PW12conductedautopsy of} deceased No. 1.

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According to the Investigating^{Officer, on receivtng} information on 01.09.2014^{regarding accused No.2,he} arrested him. On^{the basis of accusedNo.2's confession that} he had committed the offence^{with the aid of accusedNos.l} and 3, accused Nos.l and 3^{were also arrested. Pursuant to} accused No.2's confession,^{accused No.2 handed over two}

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photographs of deceased No.2 and Rs.300/- brought from his house. From there, they went to toddy shop, where the stick allegedly used to hit the deceased was seized. panchanama was prepared for both the seizure of photographs and Rs.3OO/-, which were produced by accused No.2 from his house and also seizure of the stick. The confession of accused No.1 was recorded and thereafter he produced blood stained clothes from his house hnd handed over to the police. Again both of them were taken to the scene whcre another stick was recovered near the scene.

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Having concluded investigation, police filed charge sheet against the accused Nos.1 to 3 for offence under Section 3O2, 382 r/w 34 of :IPC. According to police, all accused Nos.I to 3 were having criminal antecedents.

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Learned Sessions Judge framed charges against aecused Nos.l to 3. During the course of trial, witnesses Pws.l to 14 were examined and also Exs.pl to P30 were markgd. MOs.1 to 18 which arb wearing apparel, sticks, etc., which were seized from scene of offence and also at the instance of accused Nos.l to 3, were placed on record.

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The case^{is one of circumstantial evidenceThe only} witness who^{speaks about last seeing the three accused near} the shop^{is PWzl. PW4 statedthatdeceased Nos' 1 and 2 were} working in his^{shop as managersOn 29 08'2014at 10'30} P.M., all three^{accused came- to his shop purchased toddy} and they^{were consumingtdddysitting outside Aloo<;hips} which was^{oppositeto their toddy shop On the next day'} when he went^{to the shop at O7.3O A'M', he saw the dead} body lying^{on the platformof shop nearbyhis toddy shop'}

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g . Except PW4,^{none of the witnesses have seenthe} appellants^{near the sceneof oif.,"". Accordingto the lea'rned} Sessions Judge,^{the evidenceof PW4 is of no use arid} considering^{the testimoniesof PWs' 1 to 4, nothing came to} light, regarding^{the manner, in whichboth the deceasedwere} killed. However,^{on the basis of recoveriesthat were effected,} pursuant to the^{arrest of accused Nos'l to 3, the learned} Sessions Judge^{foundfavourwith the prosecution version} that the appellants^{who were havingcriminal ante'edents} were the^{personswho had committed murderof deceased} Nos.I and²

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The main^{thrust of the argumentsof both the corrnsel} for appellants is that^{the recoveries cannot be believedand}

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they were planted. Even assuming that such recoveries were effected, they do not, in any. manner, come to the aid of prosecution, to infer that it was the appellants alone who had committed the murder.

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1 I . MO 1 5 is cash and passport size photographs seized from accused No.3, MO16 is white pant from accused No.2, MO17 and MO18 were pants and shirt from accused No.1. Two passport size photos of deceased No.2 were serzed at the instance of accused No.3 and marked as Ex.pl I.

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Learned counsel relied .on the judgment of Hon,Lrle Supreme Court in Pancho V. Sto:te of Haryanar, wherein, while dealing with the case of extra judicial confession and circumstantial evidence, the Hdntrle Supreme Court held that Court cannot look into confession of co_accused and give its epinion. In fact, the proseculion has.to prove its case beyond rgasonable doubt and factum of the confession and the conseqgent recoveries only cannot be made basis to convict the accused.

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ln Haricharan Kurtni a. Stolte of Bihap, the Hon,ble Constitutional Bench of Supreme Court heid that a case

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I ArR 2012 SC 523 '^{Atn t96+ sc} lte+

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cannot start^{with the confessionof aco-accusedPerson.} Once the Court^{isinclinedtoaccept} the confessior:.^of co-accused, Court^{should seek corroborationand assura'nce} from the othcr^{evidence placed by prosecution apart from the} confession.^{The presumptionof innocence is basis of criminal} jurisprudence. The^{burdenis always on the prosecutiorl to} prove its case^{against an accused'}

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Irr Basudeu^{Soren a'State oJ Odishas} '^{the Hon'ble} Division^{Benchof OdishaHigh Court, while dealing with':ase} of circumstantial^{evidencefound that mere fact that accused} were last^{seen with the deceasedcannotconclusivelyprove} them guiltY.

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I 5. In cases^{of circumstantialwitnesses} '^{the Hon'ble} Supreme Court^{in Sha;rad birdhichand Sarda o' Stdte} of Maharashtraa^{neld' as follows:}

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"The followirig^{conditionsmust be fulfilled before a casE} against an^{accuseA can be said to be fully establishe(l on} circumstantial^evidence:

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(1) th€ circumstances^{from which the conclusionof gt'riitis} to be drawn^{must or should be ahd not mereiy'indybe'} fullY established,^:

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(2) the facts so established^{should be consistbnt only with} the hypothesis^{of the guilt of the accused, that is to}

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3 zo22 cRI.L.t. 2 t33

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a 1ts8+1 I scc tt6

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say, they should not be explainable on any other hypothesis except that the accused is guilty,

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(3) the circumstances sho;r-rld be of a conclusive nature and tendency

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(4) they should excludc every possible hypothesis except the one to be proved, and

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(5) there must be a chain of evidence so complete as not to leaye 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."

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ln Jafarudheen and others o. Sta:te oJ Keralas, ttle Hon'ble Supreme Court, while dealing with the case of recovery at the instance of accused found that when the recovery evidence was concocted by the prosecution, it is not reliable and such evidence has to be discarded.

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The Hon'ble Supreme .Court while discussing the admissibility and relevance of Sectio n 27 Evrdence Act, discusged various judgments which are relevant:

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"lI. It could thus be seen that this Court in Jeet Singh case has held that what is relevant is not whether the place was accessible to others or not, but whether it was ordinarily visible to others. If the place at which the article hidden is such where. only the person hiding it knows until he discloses that fact to any other person, then it will be immaterial whether the concealed place is accessible to others.

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Insofar as the reliance piaced.by the appellant on the ju{gment of this Court in Krishan Mohar Singh Dugal v.

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s 12022) 8 scc 440

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Stdte oi Goa^{is concerned, in the saidcase,the a-ccused} wirs cohvicted for the^{offence punishableunderSectiorl} 2otb)(ir) of the Narcotic^{Drugs andPsych6tropic} Sut"irnc.= Ar:t,^{1985, solely ori the basis of recovery at} the instance o[ the^{accuseddn the basis of memorandurii} btatement under Section^{27 of lhe Evidence Act ln the} saitl case, lhe recovery^{was frorri a place underthe} coconut tree, which^{was accessibleto one and all lt was} ndt a case o[ concealment^{in a place, which was only} irrittri., the knowtedle of the^{persbri concealing it. In an)} eveirt, in the said^{case,the eonvictionwas solelyon the} 6asis oI the said recovery^{and as such, was found to be} Untenable

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iV, The^po=itioti of^{law in relation to Section27 of the Act} rirhs elatorately made^{clear by Sir John Beaumont ifi} P-uluk-uti Kottdya ahd^{others v. Emperor} IAIR^{f 947 PC} 671 wherein it^{was held: "section 27, whichisnot} Aifistically wairdedi^{provides anetception tothc} brbhibitioh^{imposed by the preceding sectiofl, add} tndUtes certaid statements^{madeby a persbn in policE} buStody tb be^{prov€d.The coriditi6nndaessary to briaEl} tile section into op€ration^{is thirt discoveryof a fact ifl} tohseqhence cif informatiori^{ieceivedfrorri aperson} dcbus;d of arty otfeiice in^{the cristtrdyof a PoliceOfhc€i} irtust tie depoSed to,^{and thereupon so much of the} ihformation as relates^{distinctlyto the fact theretiy} discoverdd may be^{proved. The section seemsto be based} dh the vieu, that if a fact^{iS actuallydiscoverediir} aohsequerrce of informatibn'^{givefi, sotne guarahteeis} affordelt theretiy that the^{infortfiartiotlwas trud, arld} hcbdrdingty can be Safely^{eillowedtd be} fiven^{in eVidenc€i} biit clearly the exteht of^{the infofniation} .admissible^must depend on the exact^{nature cif the fact discovered ttl} whibh sirch information^{is requiredto relate.}

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In Ezirabhadrappa alias^{Krishnappav.Stpte oj} Karnataka 11983(2) SCR^{5521 it washeld that for the} applicability of Sect ion 27 of^{the EvidenceAci twd} c;;ditiolls are^pre- requisite,^{viz., (i) information thustbe} such as has caused ii"corrgry^{uf the fact, aind (ii) the} informaiion must^{'relate distinctly'to the fact diseovered,} Under Section 27 only^{so muchof the infoimatidnas} distinctly relates to tha^{fact really thereby discovered, is} admissibte. While deciding^{the appiicabilityof Section27} of the Evidence Act, the Court^{has also to keep in mind} the nature of presumption under^{Illustration (a) to (s) of} Section 114 of the Evidehce Act.^{The Court can,}

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therefore, presume the existence of a fact which it thinks likely to have happened, regard being had to the comrnon collrse of natural events, human conduct and public and private business, in their reiations to the facts oi the part icular case."

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1B PW13 investigating officer stated as follows:

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"On 01.09.20 14 at 07:OA, AM I apprehended accused No.2/Bo.fia Ramesh and issued noiice U/Sec. a1(A)(t) Cr.P.C when he was in mood to confessed, I secured presence two panchas ie., pWg and pwlo and in their presence I interrogated the accused No.2 who confessed to have committed the murder of deceased No. 1 and 2 along with accused No.l and 3. During the confession of accused No.2, on his confession I seizJd a blood stained trousers of him from his possession at his instance from his house under cover of confession and recovery panchanama. Ex.p6 is the confgssion cum_seizure panchanama of accused No.2. In pursuance of it I peized the pant of accused No.2 frbm his instance, MO.No.16, Pants of Accused No.2. In pursuance of his "orrfa".io., accused No.2 lead me and my party and panchas to the Eastern side lane of No.S Toddy shop at Old bus stand Nirmai where I seized crime weaponi stick said to have bee4 used by accused No.2 for killing the a.".r""0-""J also a bed sheet of deceased IriJ.2 undgr seizure panchanama, Ex.pZ. MO.No. t2 is thi stick, MO.No. f j is the [edsheet of deceased No.2. Then "e..l".d No.2 lead us 4nd panchas [p another area, Koll Banda, fVirmaf whe19 I apprehended accqsed No,I /patharla Ramu at rhe nouse or nrs slster at 9.00 AM on the same day. In the prqqsnce.or same panqh4" "; i"i;;;;;iiirr"u"ou".q No. r voluntarily confessed to have corimitted t[; ;';;; murder of deceased No.1 and 2 along with accused No.2 and 3. During the confession I seizeJ blood stained shirt and trousers of accused No.i from his possesqio" ;; ti" i.st4rr". from the house of his sistei undeq covqr of confqssion cum seizure panchanama, Ex.pB. In pu,rquance of it MO.No. 17/pants of accused No. I and Ya^{\to l8/Shirt ofaccused No.l} were seized. Subsequently accused No.1 wlO was in our custody lea{

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us and the^{same panchas to the Chowrastaat the corner} No.5 ioddy^{shop near O1d bus stand' Nitmal'} oithe ""m. Whet'e at his^{instanceIseized another crimestick} undircover^{of a separate seizure panChanamawhich was} said to hb.ve^{been used by him for killing the deceased} No.1 and 2.^{MO.No.14 is the stick seizedat the instance} olaccused No.1.^{Later both the accusedNo'1 and 2 lead} ihe police as^{weli as the panchasto Pan-gal1y, Nirnral} wfrere f apprehendbd^{accused No'3/MirzaZakki Baig at} his house on^{the same day at11'00 AM'During} confession of accused^{No-3 inthe presenceof sarne} p""cli"" he aclmitted^{to have committed the offerrce df} murder of^{deceasedNo. I and 2 alorrg with accusedNo'1} and.2. I recorded^{his confessionalstatement a:rd seized} the stolen net^{cash of Rs.30O/-and two passportsize} photographs of deceased^{No.2 from his possessionuncler} .orar .-of panchanama. Ex.P10 is confession cum seizttre panchanama of accused^{No.3. MO'No15 iscash of} irs.300/-, Ex.P11^{is two passport size photos of deceased} No.2." :

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lg. A11 the recoveries^{were effectedin the presence of PWS} and PW10 independent^{mediators and PW13 investigating} oflicer. PW8^{was declared hbstile to the prosecution case'} The lirvestigatinf,^{Officer arrested accusedNo'2on} Al.Og.2Ol4 and^{on the basisof accused No'2's confession'} the inVblvement^{6f eiccused:Nos. 1 arid 3 was established} accordiiig to^{the investigating officerand both accused Nos'1} and 3 tifere^{arreSted. At the instanbeof accusedNos' 1 to 3'} their apparel was^{seized. Froinaccused No 3, tr{'o pAssporl-} - was seizbd' It size^pass photos^{of deceasedNo.2 and Rs'300/} was observed by the trial^{Court that accusedNos' 1 to 3} having inflicted injuries^{on the deceased, accused No 3 r"'ould}

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I I

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have taken passport photos of deceased No.2 and kept in his house.

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The evidence is apparently fabricated by the prosecution to involve the appellants. It is highly improbable that the accused collected two passport size photos of deceased No.2, having committed his murder, from deceased No.2's pocket. The other re-covery aspect is that of the sticks/lathis that were found at the instance of accused Nos.l and 2. Three days after the incident, the alleged seizure of sticks is shown. The. seizure is from an open place near the old bus stand. Such open recovery cannot be believed, since both the places are accessible to people and several people visit bus stand eyeryday.

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2L. Apart from the alfeged seizures as discussed above, there is no other evidence.

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flowever, learned Public Prosecutor stated that clothes were blood stained. Admittedly, FSL has found that clothes were blood stained. However, trlood group of the blood on the clothes was not determined to connect the blood to both the deceased. When there is no other evidence, apart from the alleged seizure of blood, sticks which were not sent to FSL,

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-,)

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stained clothes which seizures^{were disputed bythe} appellants and according to them,^{they were planted, the} seizures from the accused,^{cannotform basis to convict the} appellants.

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For the aforesaid reasons, these Criminal^{Appeals are} allowed and the^judgment dated^{3O.11.2O16 in S.C.No.67 of} 2015, passed by the IV Additionai^{District and Sessrons} Judge-cum-Judge, Family Court at Adiiabad,^{is hereby set} aside. Since the appellants / accu sed Nos.1 and 2^{are in} 1ail, they shall be released forthwith, if they are not require(iⁱⁿ any other case. The bail bonds of appellant/^accusedNo.3 shall stand canceiled.

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sd/- c v^{MALLr'(A$+uJ[tISEXf;}

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//TRUE^COPY//

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r, {* SECTION^OFFICER

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To,

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The lV Additional^{District and Sessions Judge CumJudge'FamilyCourt at}

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' Aolid6roi*ith records' if any)

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The^{AdditionalJudicial Magistrate of First Class' Nirmal' Adilabad District}

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The^{Superintendent, DistrictJail' Nizamabad District ( By Speed Post )}

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The Superintendent,^{Central Prison'Warangal ( By SpeedPost )}

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The^{Station HouseOfficer'Nirmal Town PS'Adilabad District}

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6.TwoccstothePublicProsecutor,High.courtforthestateofTelangana' Hyderabad [OUTI

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One^{CCto Sri NazeerKhan' Advocate IOPUCI}

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One^{CCto Sri N NaveenKumar' Advocate [OPUC]}

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Two^{CD CoPies}

HIGH COURT

DATED:2111112024

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COMMON JUDGMENT

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CRLA.Nos.1317 of 2016 & 1116 of 2017

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ALLOWING BOTH THE GRLAs

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IJ
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Mirza Zakki Baig, Nirmal Dt., v. the State of Telangana, Rep Pp.

Case brief

What is this about?

What did the court decide?

Mirza Zakki Baig, Nirmal Dt., v. the State of Telangana, Rep Pp.

Case brief

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What did the court decide?

What the court decided

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