The State of Telangana Vs Polati Venugopal Rao And 6 Others

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[³⁴⁵³ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE ELEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HON'BLE SRI JUSTICE K.SURENDER AND THE HON'BLE SRI JUSTICE E.V. VENUGOPAL

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CRIMINAL APPEAL No:. 2477 ot 2018

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Appeal under Section 378(3) & (1)of Cr.P.C against the Judgment dated 26-12-2017 passed in S.C.No.357 of 2016 on the file of the Court of the Principal Sessions Judge, karimnagar.

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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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...AppellanUComplainant

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AND

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Polati Venugopal Rao, S/o Mallaiah, Caste: Velma, Fl/o. Dandepalli^(V) of Elkathurthy (M).A-1

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Telakunta Bixapathi, S/o Rajamogili, 35 years, Kammari, R/o.Nadikoda^(V), Parkal (M), now at H.No.11-8-1061, Kashibugga, Warangal.(A-2)

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Kamidhri Prabhakar, S/o Dasharatham, 26^years, Mala, Fi/o.Nadikoda^(V), Parkal (M), of Warangal District.(A-3)

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Maddela Madhukar, S/o Veeraiah, 25^years, Mala, Fl/o.Nadikoda^{(V), Parkal} (M), of Warangal District.(A-4)

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Ambala Surender, S/o Srihari, 30 years, Goud, R/o.Dharmaram^(V), Parkal (M) of Warangal District, Occ: Driver of Auto B.No.AP 36 V 8504. (A-5)

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Kazipet Kamalakar, S/o Narayana, 46^years, Dasari, r/o. 9-153, Warangal Road, Huzurabad (4-6)

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Macharala Thriupathi, S/o Sailu, 27 years, Tenugu, R:io. Dandepalli^(v), Elkathurthy (m) now at Kolanur (v), Odela Mandal (A-8)

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(A-7 & A-9 are not necessary parties as case against A-7 is abated and case against A-9 is discharged)

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...Respondents/Accused

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Counsel forthe Appellant: Sri Arun Kumar Dodla, Additional Public Prosecutor

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Counsel for the Respondents No.3 to 5 & 6: Sri A. Prabhakar Rao

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The Court delivered the following: JUDGMENT

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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.2477 OF 2018

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JUDGMENT2 (per Hon'ble Sri Justice K.surender)

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The State is aggrieved by the^judgment dated 26.12.2017, in S.C.No.357 of 2016, on the file of^Principal Sessions Judge, Karimnagar, acquitting^A- 1 to A-6 for^the offences under Sections 120(8), 364, 343, 384, 3O2,^{and 2Ol} of IPC, and A-8 for the offences under Sections 12O(B),^364, 343,3O2, and 2Ol r/w. lO9 of IPC.

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Heard Sri Arun Kumar Dodla, learned Additional Public Prosecutor for State. Perused the record.

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The case of the prosecution is that on O1.08.201O, the deceased, who is the husband of P.W.l, left home around⁸ a.m., however, he did not return home. P.W. I^{enquired with} her co-sister lP.W.2 about the deceased. P.W.2 stated that the deceased would return home by evening. The deceased did not return home on that night and also on the next^day. Since P.W.1's search for the deceased^proved futile,^{the son of} the deceased lodged a complaint with the^{Police, which is} Ex.P. 1. The Sub-Inspector of^Police/P.W. 16 received^the

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complaint, and he registered it as a 'man missing' case, and took up the investigation. The statement of P.W.2 was recorded on 08.08.2010, and the statements of P.Ws.4 and 5 were recorded on 02.10.2010. P.W. 16, while conducting a vehicle check on 06.iO.2OlO, found A-2 and A-5 in an auto, and apprehended them. On interrogation, they confessed, in the presence of P.W.9 and another, that they have committed the murder of the deceased along \Mith the other accused. According to their confessions, the deceased was kidnapped and killed with the help of A-3, and after taking the deceased's gold chain and gold ring, the dead body was burnt by taking the deceased in the auto of A-5. It is the further case of the prosecution that the deceased was conhned in a room belonging to A-2. On the said day, A-2 and A-4 went to the house of the deceased and asked P.W. 1 for gold. P.W. I asked the deceased, and at his instance, P.W. I handed over 12 tulas of old, cash of Rs.1,000/-, a cell charger, and a pair of clothes to them. There was a-lso a demand for Rs.10 takhs; however, the said amount was not given, and meanwhile, the accused committed the murder of the deceased.

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Pursuant to the confessions of A-2 and A-S, 5% tulas of gold and one toy pistol made of wood were seized from A-2,

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and arr auto was seized from A-5. A-2 took the independent witnesses, P.W.7 and two others, and pointed out the place where the body was buried. P.W. 16/Inspector of Police, in the presence of P.W.7 ald two other witnesses, exhumed the dead body. After exhumation, the inquest proceedings were conducted, and thereafter, the dead body was sent for^post mortem examination.

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On 07.10.2010, P.W. 16 filed an alteration memo before the Court. On 11.10.2010, A-3, A-6 to A-9 were arrested.^At the instance of A-3, a gold chain, and at the instance of ,{-6, another gold chain was seized. From A-7 and A-8 also^gold articles were seized. On 28.10.2010, at 10:40 hours, P.W.l7 arrested A-1. Pursuant to his confession, 4^gold bangles^and a Hero Honda Passion motorcycle were seized. On 25.01.2011, P.W. 17 forwarded the humerus right^{bone of the} deceased to the FSL for the purpose of examination.^The blood sample of the son of the deceased was taken, which tallied with the DNA profile of the deceased that^was exhumed. The investigation was concluded, and a^charge sheet was laid against A-1 to A-6 and A-8. A-7 died.

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l,earned Sessions Judge, having considered the evidence on record, acquitted the accused on the following grounds:-

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l. The evidence of the Investigating Officer and P.W.3 that the dead body was pointed out by A-2 cannot be believed, since, according to P.W.16 /^{Investigating} Officer, the blood relatives came to the place only after the dead body was exhumed.

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The confession, which runs into B Yz pages, could not have been prepared within the time frame stipulated by the Investigating Officer, as the arrest was at 10 a.m. and the exhumation started by 1 p.m.

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P.W.7, who is the Sweeper in the Grampanchayat, stated that A-2 has shown the place of burial of the body, and it was dug by him and two others. p.W.Z stated that the Police asked him to come to Manakondur to exhume the body.

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P.W. 16/Investigating Offrcer admitted that p.W.7 did not speak about A-2 showing the place of buria-l of the dead body.

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The evidence of P.W.9, who is the witness to the alleged confession of A-2 and A-5, cannot be believed since he is not a resident of Valbhapur village, where A-2 and A-5 were arrested.

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The entire confession that was recorded by the Police is inadmissible under Section 25 of the Indian Evidence Act. Though P.W.9 stated that he went to Valbhapur bus stand at 1O a.m., however, according to P.W. 16, A-2 and A-5 were arrested at 9:3O a.m. itself, while conducting a vehicle check. Once the police have already seized the toy pistol, the question of discovering it after the confession does not arise.

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7 . The recoveries that were affected would not fall within the admissibility under Section 27 of ttre Indian Evidence Act, since the recoveries were already made and no new fact was discovered by the Police.

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The evidence of P.W. I identifying the accused is alter 7 years, and there was no Test Identification Parade that was conducted.

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9 . The prosecution's case of abduction and detention of the deceased cannot be believed since no neighbor of

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house of A-2 was examined to indicate that the deceased was detained in the house of A-2.

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P.W. 13 is the witness to the confession and the seizure at the instance of A-1. However, in the cross examination, it was proved that he has given two different versions on two different occasions. As such, reliance cannot be placed on the evidence of P.W. 13.

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7 . l,earned Public Prosecutor would submit that the dead body was exhumed at the instance of A 2, and gold ornaments were also seized at the instance of accused. The said circumstances are enough to infer the case of the prosecution that the deceased was abducted and detained, and thereafter, murdered by the accused.

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In cases of acquittal, the appellate Court cannot reverse the judgment of acquittal, unless there are compelling reasons in the form of trial Court not considering any inadmissible evidence or placing reliance on inadmissible evidence in acquitting the accused.

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:r-:tl&1 __ - ''

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In Raui Shanna u. State (Goaernment of NCT of Delhi) and anothel, the Hon,ble Supreme Court held that, while dealing with an appeal against acquittal, the appellate court has to consider whether the trial Court,s view can be termed as a possible one, particularly when erridence on record has been ana_lysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.

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In Ghureg Lal u. State of Uttar pradesll, the Hon'ble Supreme Court, after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70 as follows:

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'7O. In the light of the aboue, tlle High Court and other appellate Courts shauld follou the uell-settled_ pinciples crystallized. bg number of Judgments if it i.s going to ouerntle or otheruise disturb the tial court's acquittal:

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The appeltate court mag onlg ouerntle or othentrise disturb the tial court's acqtittal if it has "uery substantial and compelling reasons" for doing so. A number of instances arise in uhich the appellate court u-tould haue "uery substantial and compelling reasons. to

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L (2022) I Supreme Court Cases 536

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'?^{(2008)10 SupremeCourtCases 450}

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discard the tial court's decAion. "Very substantial and compelling reasons" exist when:

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i) The tial court's conclusion u.tith regard to the facts is palpablg urong:

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ii) The tial court's decision was based. orl an erroneous uieut of lanu;

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iii) The tial court's ludgment is likely to result in "graue mi s carriag e of ju stice " ;

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iu) The entire approach of the trial court in..dealing uith the euid.ence uas patentlA itlegal;

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u) The tial court's judgment was manikstly unjust and unreasonable;

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ui) The tial court hns ignored the euidence or misread the mateial euidence or has ignored mdteial documents like dging declarations/ report of the ballistic expert, etc.

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uii)This list is intended to be illustratiue, not exhaustiue. 2. The appellate court must alu.tags giue proper uteight and considerotion o the rtndings of tlLe trial court.

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If ttuo reasonable uteu..ts can be reached_ one that leads to acquittal, the other to conuiction _the High Courts/ appellate courts must rule in fauour of the accased."

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1 1 . The complaint was frled nearly 6 days after the deceased went missing. In the complaint that was drafted by the son of the deceased, there was no mention of any of the accused approaching P.W. 1 one day after the deceased went missing and collecting gold ornaments and cash from P.W.1. P.W.1 has identified the accused Nos.2, 4, and 5, seven years after the alleged incident. Firstly, there is no mention of any of the accused going to the house of P.W. 1 and collecting the jewelry under Ex.P. 1. However, in the statement recorded under Section 161 Cr.P.C., P.W.l stated that three persons came to her house. Secondly, the descriptive particulars of three persons were neither stated, nor were the accused

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narned in the statement recorded under Section 161 Cr.P.C. The identifrcation by P.W. 1, for the first time in the Court alter 7 years, cannot be considered as evidence to infer that it was A-2, A-4, and A-5 who had gone to P.W. 1's house one day before the deceased went missing.

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The reasoning given by the learned Sessions Judge regarding the other circumstances of seizure at the instance of the accused cannot be found fault with. In view of the observations of the Hon'ble Supreme Court in the above cited judgments, the well reasoned judgment of the learned Sessions Judge cannot be reversed since the findings are based on record ald are reasonable.

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