The State of Telangana, Rep Pp., Vs Shaik Shah Wali , Wali, Kurnool Dt and 2 Otrs.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE SIXTH DAY OF FEBRUARY TWO THOUSAND A-I{D-TWENTY FIVE

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL

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CRIMINAL APPEAL NO: 1032 OF 2017

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Appeal under Section 378 (3) &⁽¹ ) of Cr. P.C. against the Judgment dated^'18- 09-20'15 made in S.C.No 212 of 2013 on the file of the Court of the^{lvletropolitan} Sessions Judge. Hyderabad.

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Between:

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The State of Telangana, Rep. by the Public Prosecutor, High Court^at Hyderabad

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...Appellant / Complainant

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AND

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Shaik Shah Wali @ Wali, S/o. Kondagiri Md Khaleel, Age 33^years, Occ. Constable Driver (CRPF), R/o. Qtr No.168 Special Type-l, Group^Centre, CRPF Barkas, Chandrayangutta, Hyderabad, N/o. Devenakonda^{(V) & (M),} Kurnool District

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R1 / Al Died

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lVlohd. Shafi, S/o. H. Shaik Ahmed, Age 22^years, Occ Welder,^{R/o. Jandagiri,} Kurnool Road, Guthi Mandal, Anantapur District

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Khader Basha @ Nagur Basha, S/o. Shaik Shareef, Age^{32 years, Occ} Agriculture Labour, R/o. Basenpalli (V), Gooty^(M), Anantapur District

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...Respondents / Accused

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As R1 / 41 died on 15-07-2017, the appeal against the^R1 /^{41 is dismissed} as abated as per Court Order dated 03-10-2018 in l.A.No.1 of^20lBin Crl.A.No.'1032 / 2017

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Counsel for the Appellant

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Counsel for the Respondent No 2 & 3 :

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Sri Aru n Kumar Dodla Additional Public Prosecutor

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Sri Jakkamsetti Ravindra

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The Court delivered the following Judgment^:

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THE HONOURABLE SRI JT'STICE K.SURENDER

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AND-_

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THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

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CRIMINAL APPEAL No.1O32 OF 2Ol7

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JUDGMENT: (per The Hon'ble Sri Justice K.SURENDER)

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This appeal is filed by the State aggrieved by the acquittal of respondents/Accused recorded by the Metropolitan Sessions Judge, Hyderabad, in SC.No.212 of 2013, dated 18.O9.20i5.

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Heard Sri D.Arun Kumar, learned Additional Public Prosecutor

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Briefly, the case of the prosecution is that the defacto complainant lodged a crimina-1 complaint stating that his son aged around 9 years went to the school by boarding a CRPF school bus, but did not return. The boy was a student of Gowthami Residential High School, Meerpet. He used to return home by 4.3O p.rn., every day.

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On the basis of the complaint given, the crime was registered as 'boy missing'.

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During investigation, on 13.11.201O and 14.11.2O1O, the mother of the victim received phone call from the accused demanding a ransom amount of Rs. 15 lakhs. The section of law was altered to

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364-A of IPC. On analyzing the ca-ll details, it was found that^{the calls} were made through a coin box sitirated at MBNR^{cross roads,} Aramghar. The accused also made a^{phone call on 29.11-2OlOftom} the coin box demanding a ransom amount^{of Rs. 15 lakhs. The Police} laid a trap to apprehend the accused.^{The accusedthen came on their} vehicle, however, went away on observing^{that the Policewere at the} scene. Al was apprehended and^{interrogatedby the Police.Al} confessed that he committed^{crime along with A2 and A3. On the} basis of the confession of^{A1, the dead body was recovered. The body} was identifred with the help of^{wearing apparel on the body.}

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A1 is driver of CRPF bus. According to^{the prosecutioncase, in} order to extract money from^{the parents of the victim, he committed} murder of the boy. Charge sheet^{was filed underSections 302, 364-A'} 2O1 and 120-B of the Indian Penal^code.

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The learned Sessions Judge^{having framedcharges underthe} said penal provisions, found that the^{accused was not guilty of the} offence alleged.

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The thrust of the prosecution case^{is the call records that were} seized during the course of^{investigation,pertaining to the mobile} phones of Al, A2 and the mother of the^{deceased. However, the call}

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data record that rvas produced was not certified under Section 65-8 of the Evidence Act. Placing reliance on Ee Judgment of the Honourable Supreme Court in P.V.Anaar a. P.K.Bqsheer and. others r, the learned Sessions Judge found that no reliance can be placed on the call records. Once the call records were eschewed from consideration, there is absolutely no other evidence on which the Court can rely upon to point the accused as the persons who are responsible for kidnapping the deceased boy. Further there was no amplifiable DNA yeld by the FSL to conduct DNA test, as such it was not conclusively proved that the dead body was that of the son of pW. 1 . The identification of the dead body was only on the basis of clothes found. on the dead bodr'.

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In Ravi Sharma v. State (Government of NCT of Delhi) and another', the Hon'ble Supreme Court held that while dealing with an appeal against acquittal, the appeliate court has to consider whether the trial Court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour

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I cot zot+ sc zgo

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'?12022;^{8 SupremeCoun Cases} 536

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of the accused. Thus, the appellate court has to be relatively^slow in reversing.the order of the trial court reidering^acquittal.

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In Ghureg lal u. Sto:te of Uttar^{Pradeshr the Hon'ble Supreme} Court after referring to several Judgments^{regarding the settled} principies of law and the powers of^appellate Court^{in reversing the} order of acquittal, held^{at para 70, as follows:}

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"70. In the light of the aboue, the^{High Court andotherappellate} Courts should fottou.t the^{u.tell-settledpinciplescrystollizedbg numberof} Jud.gments if it is^going to ouemtle^{or othentise disturbthe tialcourt's} ocquittal:

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The appellate court maA only^{ouerntleor otheruise disturbthe} tial court's acquittal if it has "uery^{substantial and compelling reasons"} for^{doing so.}

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A number of instances aise in^{uhichthe appellate court ulould haue} "uery substantial and compelling reasons"^{to discard th.e tialcourt's} d.ecision. "Very substantial and^{compelling reasons" etist uhen:}

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i) The tial court's conclusion with^{regard to the} facts^{is palpablg} urong:

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1i1 rn taot court's decision was^{based on an erroneousuieutof lau;} iii) The tial court's^judgment is likelg^{to result in 'graue mbcaniage} of^justice";

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iu) The entire approach of the tial^{courtin dealing uith the euidence} was patentlg illegal; - u) The tiat court's judgment lras manifestlg unjust and unreasonable;

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ui) The tial court hoLs ignored the^{euidence or misread the mateial} euidence or has ignored material documents^{like dging declarations/ report} of the ballistic Ex.Pert,^etc.

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uii)This li-st is intended^{to be illustratiue,not exltaustlue'}

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The appettate court^{must aluaAs giue proper ueightand} consideration o tle findings^{of the trial court.}

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If tuto reasonable uiews^{can be reached- one that leads to} acquittal, the other to^conuiction -the Htgh Courts/ appellate courts^must rule in fauour of the accused-"

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' 120081^{lO Sup.e-" Court Cases450}

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The main evidence to connect the accused, are the call records. However, certificate was not given under Section 65-8 of the Evidence Act to rely upon such call records. In the absence of certification, the call records cannot be looked into, as held by the Honourable Supreme Court. The dead body found was not conclusively proved to be that of the son of PW. l. There is absolutely no infirmity vrith the findings of the learned Sessions. Judge, which are based on record and reasonable. In the said circumstances, we do not hnd any reasons to interfere with the finding of the learned Additional Sessions Judge, in acquitting the accused.

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