Allowed

Shaik Moin, Nizamabad Dist. v. Sho, Bichkunda P.S., Nizamabad Dist.

Telangana HC5 Nov 2024CRLA/32/2016

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against murder conviction and sentence. Court held that evidence was weak, circumstantial circumstances were not fully established, and suspicion could not replace legal proof beyond reasonable doubt. Conviction set aside.

What did the court decide?

Criminal appeal allowed. Conviction and sentence set aside. Bail bonds cancelled.

Shaik Moin, Nizamabad Dist. Vs Sho, Bichkunda… — Murder and Culpable Homicide | Telangana HC (2024)

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NoTE:TheAppellanUAccusedwasdirectedtobereleasedonbailbytheorderof ih; ilqil Corri',iri"J^{03 03.2020in l A.No 1 or 2019in crlA'No 32 of 2016}

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[^341e ]

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IN THE HIGH COURT^{FOR THE STATEOF TELANGANA} AT HYDERABAD

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TUESDAY ,THE^{FIFTH DAY OF NOVEMBER} TWO THOUSAND AND^TWENTYFOUR

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PRESENT

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THE HONOURABLE^{SRIJUSTICE K.SURENDER} AND THE HONOURABLE^{SRI JUSTICE ANIL KUMARJUKANTI}

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CRIMINAL APPEAL^{NO:32 OF 2016}

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Appeal filed under^{Section 374?.)^ot C-rP,p} '^{aoainstthe Judsmentdated} so.oo.idis^{passeo in S.C.ilJ. )10 ot zbil on the file of ihe Court of the I Additional} Sessions Judge at^Nizamabad-

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Between:

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Shaik Moin, S/o.^{Mahboobsab'aged about 25 ye^ars' Occ: Labourer' R/o} W"liJnigii vittage,^{BichkundaMantal,N izamabadDistrict'}

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...APPellanUAccused

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AND

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TheStateofTelangana,throughSHO,BichkundaPoliceStation' r.ri)amauja oistrtct,^{nei. uv'pubtic Frosecutor, High court,Hyderabad.}

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...RespondenUComPlainant

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Counsel for the^{Appellant:Sri Koteswar Rao Gone}

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Counsel for the^{Respondent:Additional Public Prosecutor}

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The Court delivered^{the following: 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 No.32 0F 2016

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JUDGMENT: per Hon'ble Sri Justice K.Surender)

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This appeal is filed by the appellant, questioning the conviction fo:' the offence under Section 3O2 of IFC and sentencing hirn to undergo life imprisonment.

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Heard learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent_ State and penrsed the record.

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Briefly, ,rase of the prosecution is that on 26.02.2013, at around 09:30 P.M., the deceased, appellant and some of the witnesses PWs.7, B, 9 and 10 played cards. On the next day, at arounc 04:00 P.M., the deceased was found deal near Pulkal Village^'lank.

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PWl, who is the father of the deceased, stated that on the informatio:r given by others, he found his son dead, he went to scene of offence and found injuries on the frce of deceased. Ex.^rl/Complaint was iodged. pW2 who is the brother of deceased stated that he accompanied his iather PW1. PW3 who is the friend of deceased stated that he saw

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the dead body^{of deceasedand it appearedthat the deceased} was beaten with^{a stone.PW4 who is the relative of deceased} stated that deceased^{went out and did not return and later} they found his^{dead body. PWS who is a witness stated that} he went to attend^{the marriage and the deceased had also} attended the^{marriage. However, he did not return after} attending marriage.^{PW6who is another relativealso stated} about the deceased^{attendingmarriage'}

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The crucial witnesses^{relied upon by the prosecution} are PWs.7 to 1O'^{PW7 is the brother-in-law of deceased'He} stated that^{they piayed card.s in their village'He lost around} Rs.2,000/-. The^{said cards were played along with the} appellant and^{also deceased.After playing cards' they went to} their respective^{houses and on the next day,he cameto know} that the deceased^{was dead. When the villagers gathered near} dead body, the^{appellant was present, however'he did not} attend funeral^{of the deceasedon the next day' He suspected} that it was the^{appellantwho killed the deceased'PW8had} also stated that^{severalpersonsincludingPW7, deceased and} appellant^{played cards.Thereafter deceased and appellant} were seen^{going together at around01:30A'M' On the next} day, he found^{the deceased deadand also injurieswere found}

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on his face. I)Ws.9 and 10 also stated that all of them played cards and the deceased won the game. Thereafter, on the next day, he,vas found dead.

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On the basis of circumstaltial evidence, the police found that it was the appellant who had committed murder of deceased arrd the appellant was arrested on 13.03.2013 i.e., 14 days after the date of incident. pursuant to his arrest by PW16, in tht: presence of PW14 and another independent witness, confession of appellant was recorded. .At his instance, Rs. .3,000/- (MO4) and one cell phone (MOti) were also recoverecl. On the basis of said recoveries and also last seen theory, <'harge sheet was filed against the appellant for the offences under Sections 302 and 379 of IpC.

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7 . The learned Magistrate committed the case to the Sessions Jud13e. During the course of trial, on behalf of the prosecution, ['Ws.1 to 16, trxs.pl to p7 and Material ()bjects i.e., MOs. I to 5 were marked.

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The Learned Sessions Judge relied on the following circumstances to infer and come to the conclusiorr that accused has committed the murder of deceased:

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"2O. The important circumstances that weigh IN favour oftre prosecution are as follows:

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First - According to the investigation^{thougha1l the} persons who played cards with the accused,^the accused did not attend that funeral^{of deceased ald} his absence was consPicuous;

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Secondly - PW8 who^played the^{cards along with the} accused and also deceased^{deposedthatafter} playing the cards he went to the house^{and he went} to the tank for attending nature call^{and he saw} deceased and accused^going together^{arld itwas} about 01.30 am and on the^{next day he came to} know that the deceased died of^{the injuries;}

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Thirdiy - With respect of^{the seizure of MO4 cash of} Rs.13,OO0/-, MOS cell^{phone, according tothe} Additional Public Prosecutor,^{the policecannotoffer} to plant an amount of Rs.13,0OO/-^{for the sakeof} proving the guilt of the accused;^{similarlyhe argued} that the cell^phone of the^{accusedwas found in} possession of the accused at whose^{instanceit was} seized."

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g. Learned counsel appearing^{on behalf of appellant would} submit that only the evidence^{of last seen together is a weak} piece of evidence to place reliance for^{convicting appellant.} Apart from the last seen theory,^{there are noother} corroborating circumstances which^{the Courtcarl draw the} inference that it was the^{appellantalone,who had committed} the murder. He relied on the^{judgment of Hon'ble Supreme} Court in Raja Nagkar a.^{State of Chhattisgcrhr,wherein,} it is held as follows:

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"7. Undoubtedly, the^{prosecution case rests on} circumstantial evidence. The law^{with regard to} 1 crl.A.No.go2 of 2023

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convicti(rn on the basis of circumstantial eviden<:e has very well been crystalized in the judgment of this Court ir the case of Sharad Birdhichand. Sarda as. State of Maharashtraz, wherein this Cou:t held thus:

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"152. IJefore discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests o n circumstantial evidence alone. The mosit fundamental ald basic decision of this Court rs Hanumant v. State of Madhya pradesh l(lg12l 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091 : 1953 Cri LJ 129]. This case has been uniformly fotlowel ald applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufarl (Alias) Si'nmi v. State of Uttar pradesh [(1969) 3 SC(] 198 19'70 SCC (Cri) and Ramgopal v. State Maharasrtra U1972) 4 SCC 625: AIR tg72 SC 6561. It may be useful to extract what Mahajan, J. has laiil down in lanlrmant case [(1952) 2 SCC 7t AIR 195j2 SC 343: 1952 SCR 1O91: 1953 Cri:I) 129):

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"lt is well to remember that in cases r,r,here thr: evidence is of a circumstantial nature, thr: circumstances from which the conclusion of guilt ir; to be drirwn should in the first instance be fulll, establish,-'d, and all the facts so established shoulit be consrstent only with the hypothesis of the guilt ot the accusred. Again, the circumstances should be ol a conclusrive nature and tendency and they shoulcl be such irs to exclude every hypothesis bui the one proposed to be proved. In other words, there must. be a chaitr of evidence so far complete as not to leave: any reas()nab1e ground for a conclusion consistenl. with the innocence of the accused and it must be such as 1o show that within all human probabilit5, the act mrst have been done by the accused.,'

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A close analysis of this decision would show that the firllowing conditions must be fulhlled before

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' ltsa+;^{+ SCC116} =¹⁹⁸⁴ INSC 121

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a case against an accused^{can be said to be fully} established:

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(1) the circumstances from which the^conclusionof guilt is to be drawn should be fully established.

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It may be noted here that this^{Court indicated that} the circumstances concerned^{"must or should" and} not "may be" established.^{There isnot only a} grammatical but a legal distinction^{between "may be} proved" ald "must be or should^{be proved"as was} held by this Court in^{Shivaji Sahabrao Bobade v'} State of Maharashtra l(19731^{2 SCC 793 1973 SCC} (Cri) 1033: 1973 Crl IJ^{17831 where the} observations were made: [SCC^{para 19, p. 807:SCC} (Cri) p. 10a71

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"Certainly, it is a primary principle^{that the} accused must be and not^{merely may be guilty} before a court can convict^{and the mentaldistance} between 'may be' and^{'must be' is long and divides} vague conjectures from sure^{conclusions."}

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(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 accusedis guilty,}

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(3) the circumstances should be^{of a conclusive} nature and tendencY,

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(a) they should exclude 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 leave any^{reasonablegroundfor the} conclusion consistent^{with the innocenceof the} accused and must show that^{in dlhuman} probability the act must^{have beendone by the} accused.

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These hve^{goldenprinciples, if we may say so,} constitute the panchsheel of^{the proof of a case} based on circumstantial^evidence.

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It carr thus clearly be^{seen that it is necessary for} the prosecution that^{the circumstancesfrom which}

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the conclusion of the guilt is to be drawn should t,e fully es-ablished. The Court holds that it is a primary principle that the accused^,must be' and not merely '-nay be' proved guilty before a court can convict the accused. It has been held that there is not onll- a grammatical but a 1egaI distinctio n between 'may be proved' and^,must be or should be proved'. It has been held that the facts so established should be consistent only with the gui. t of the ar:cused, that is to say, they should noi be explainable on any other hypothesii except that the accused is guiity. It has further been heid that the circumst,mces should be such that they exclud: every possible hypothesis except the one to b: proved. L has been held that there must be a chain of evide;tce so complete as not to leave an.l reasonabte ground for the conclusion consistent with the innocence of the accused and must shovr that in ail human probabilities the act must have been don,: by the accused.,,

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Learned counsel also relied on the judgment of l{on,ble Supreme Court in Kanhaiga Lat a. State of Rajasthans

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and the relevant paragraph is extracted hereunder:

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"The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the trccused who committed the crime. There must be something more establishing connectivity between^'he accused and the crimJ. Mere non_ explanaticn on the part of the appellant, in our considererl opinion, by itself .a.r.oi iead to proof of guilt agair st the appellant

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Learned counsel also relied on the judgment of R.Sreeniuasa u. State of Karnatakca, in which, the Hon,ble

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3 lzot+1 + scctts

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Supreme Court^{referredto the case of Kanhdiga Lal 12} supra), while acquitting^{the accusedon the basisof} circumstance of^{last seen together.}

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1 1 . On the other^{hand, learnedPublicProsecutor would} submit that the^{evidence of PW7, who has last seen the} deceased ald^{appellant at O1:30 A'M', would sufficeto infer} that it was^{appellant who had killed the deceasedAccording} to the prosecution^{case, the deceasedwon money in the} cards. Rs.13,0O0/-^{was seized at the instanceof appellant} and also cell^{phone of the deceased/MO5' There is no reason} as to why the^{cell phoneof the deceased would be with the} appellant, unless it^{was the appellant, who had committed} the murder of^{the deceased.}

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The crucial^{evidencerelied on by the prosecutionare} the statements^{of PWs.7 to 10. PW7 stated thathe foundthe} appellant at^{the sceneof offence when the villagersgathered'} however, he had^{notattendedthefuneral, whichis} suspicious.^{PWS who is the crucial witness had stated that} he saw the deceased^{and appellant going together at around} O 1:3O A.M. However,^{in the crossexamination, he narrated} that after one^{weekfrom the date of incident' the Police}

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4 2023 LawSuit(SC) 891

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exarnined hin. Similar is the evidence of pWs.9 and lO, who spoke about the deceased and appellant playing cards and deceased wir,ning amount.

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The rer:overy of amount of Rs.13,000/_ cannot in any manner be a incriminating circumstance agair:.st the appellant. None of the witnesses stated that they have lost the amount of Rs.13,000/-. The witnesses i.e., pWs.g, 9 ald 10 stated they lost Rs.2,00O/- each. The prosecution :ras not come up with any evidence to show that the amoun._ found with the appe llant in his house does not belong to hirrL and it belongs to deceased ald none of the witnesses szry that deceased has won an amount Rs.15,000/-, as proje<:ted by the prosecution, on the date of playing cards i.e., on 27.O2.2013.

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The other circumstance is recovery of celi phone/MO5 of the decease.d, at the instance of the appellant. MO.S was seized in the presence of pW. 14, who is the wltness to the alleged seizure . The prosecution has not shown the cell phone to the father (I,W1), brother (pW2) or any of other witnesrses to state that the deceased was using the said cell phonr:. The ceil phone nurnber of the deceased was not stated and there is no evidence to show that the deceased had purchasr:d the

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cell phone or from^{whom he had taken the cell phone for} using it.

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PWs.7 to 10, were^{not even examined,duringthe} course of inquest^{proceedings.Their version that theyplayed} cards and deceased^{had won money was made,nearly after} one week of the death^{of the deceased'Apparently,the} witnesses suspected the^{appellantand on the basis of said} suspicion, a false^{case was made up against the appellant' If} at all there is any^{amount of truth, PWs'7to 11 wouldhave} come out with the^{said version, on the day when they saw the} dead body i.e.,^{on 28.02.2013 itself' Whenthe dead bodywas} discovered, according^{to PW7,appellantwas also present but} nothing was stated^{by PWs.7 to 1O either to the fatheror} brother or any^{of the relativesof deceasedregarding playing} cards and the^{deceased winning money in the session of} playrng cards. Even in the^{complaint/Ex'P1} ,^{there is no} whisper about the^{deceasedplayrng cards and winning} amount or about^{the witnessesi.e., PWs'7 to 1O'}

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L6. The evidence of^{last seen is a weak piece of evidence'} unless corroborated^{by other evidencewhich the Court can} place reliance on to come^{to a conclusion that the appellant} has caused injury^{and committed murder'As observedby the}

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.,:,

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Hon'ble Supreme Court, the prosecution must prove the case beyond reas tnabie doubt and the principle case projrscfsd ly the prosecurion "must be proved,, ald not merely ,,may be proved". An1 amount of suspicion cannot take place of iegal proof. The circumstance relied on by the prosecution, though raises suspicion, suspicion is not enough to draw infe:-ence to find appellant guilty. For the above discussed reascns, the appellant su(:ceeds and his conviction is liable to be set aside.

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Accordingly, this Criminal Appeal is allowed e,nd the conviction and sentence of imprisonment imposed agatnst the appellant in S.C.No.210 of 2013 passed by the earned I Additional Sessions Judge, Nizamabad, is herebv ser_ aside. Bail bonds shall stand cancelled.

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Sd/. K. SRINIVASA RAO JOTNT REGTSTtrAR

//TRUE COPY//

'.,v .i

SECTION OFFICER

To,

1 The I Additional Sessions Judge at Nizamabad. (with records)

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2 The Judicial Magistrate of First Class, Bichkunda, Kamareddy District. J The Superintendent, District Jail, Nizamabad. (By Speed Po3t) 4 The S-tation House Officer, Bichkunda Police Station, Kamareddy District. 5 Two CCs to the Public Prosecutor, High Court for the State of'Telangana at Hyderabad. (OLIT)

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6 One CC to Sri Koteswar Rao Gone, Advocate [OPUC]

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