Smt.Dasari Maneema, Kurnool Dt., Vs the State of Telangana, Rep Pp and 4 Otrs.

¶1

[³⁴¹⁹ ]

¶2

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

¶3

THURSDAY, THE SECOND DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

¶4

PRESENT

¶5

THE HON'BLE SRI JUSTICE K.SURENDER AND THE HON'BLE SRI JUSTICE J. ANIL KUMAR

¶6

CRIMINAL APPEAL No: 718 oT 2017

¶7

Appeal under Section 372 of Cr.P.C aggrieved by the Judgment dated 27 -03-2017 passed in Spl.S.C.No.9 of 2014 on the file of the Court of the Special Sessions Judge-cum-Vll Additional District and Sessions Judge, at Mahabubnagar.

¶8

Between:

¶9

Smt.Dasari Maneema, Wo. Kurmaiah, Age:45 years, Occ: Labour, R/o- Alleru, Telkapalli Mandal, Nagar Kurnool District.

¶10

...AppellanUDefacto Complainant

¶11

AND

¶12

The State of Telangana, Through SHO, Telkapally PS., Nagar Kurnool, Rep. by its Public Prosecutor, High Court at Judicature at Hyderabad, For the State of Telangana and the State of Andhra Pradesh.

¶13

...RespondenUComplainant

¶14

Sandaraaju Srinu @ Chakali Srinu, S/o. Balaiah, Age: 35 years, Occ: Agricultu re

¶15

Beeragala Balaiah @ Deputy Balaiah, S/o. Bakkaiah, Age:32^years, Occ: Dy. Sarpanch, Agriculture

¶16

Dodda Maliaiah, S/o. Chandraiah, Age:30^years, Occ: Agriculture.

¶17

Surabhi Vamsavardhan Rao, S/o. Sri Ranga Rao, Age:50^years, Occ: Sarpanch/ Agriculture.

¶18

Respondents 2 to 5 are the resident of Alair Village, Telkapally Mandal,^Nagar Kurnool District.

¶19

... Respondents/Accused Nos.1 to 4

¶20

Gounsel for the Appellant: Sri Nimmaraboina Naveen

¶21

Counsel for the Respondent No.1: Additional Public Prosecutor

¶22

Counsel for the Respondents.No.2 to 5: None Appeared

¶23

The Court delivered the following: JUDGMENT

¶24

1

¶25

THE HOIilOURABLE SRI JUSTICE K.SUREIIIDER AND THE HONOURABLE SRI JUSTICE J. ANTL KUMAR

¶26

CRIMINAL APPEAL No.718 OF 2Ol7

¶27

JUDGMENTi per Hon'ble Si Justice K.surender)

¶28

The presr:nt appeal is filed by the appellant/ccmplainant aggrieved by tt e judgment dated 27.O3.2017 in Spl.fi.O.No.9 of 2074, on the fi e of Special Sessions Judge-Cum-VII Arlditional District & Sessions Judge, at Mahbubnagar, acqrrit ting the respondents/a t,rused Nos.1 to 4.

¶29

Heard 1 :rrrned counsel for the appellzrntT de-facto complainan.t arr,1 the learned Additional Public Pros;e< utor for State.

¶30

The case of the prosecution is that P.W. 1 is tht, wife of the deceasecl . fihe lodged a complaint with the Pol.cr stating that on 07.I2.'.D1O at about 7 p.m., one person of her village informed that ,lead body of her husband was founrl rrear the agricultural larc of Mukurala Venkataiah (not examrnr,d). She went near the rlead body.ald expressed suspicion that Thagali Kasamma, wife rtf late Niranjan was responsible for hi,; death, since her deceirsed husbald was having illicit intirna cy with her. Previous cay i.e., on 06. l2.2OlO at about B p.m., A-2

¶31

2

¶32

took the deceased to A-4 for discussing about^panchayat funds and at that time, P.W. 1 called her deceased^husbandon phone and asked him to come home early, however,^he did^not return. On the basis of the said complaint^{made, the Police} registered the crime initially under^{Section 174 Cr -P} -C.^Scene of offence panchnama was conducted,^{witnesseswere} examined and inquest proceedings^{were also concluded.} Thereafter, dead body was sent for^post mortem^examination. Pending investigation, P.W.1 submitted a^{request for re-} postmortem. On the basis of her request,^{body was exhumed} and postmortem was again conducted-^{On 26.04.2011,} P.W. 14 conducted 2nd autopsy.

¶33

Meanwhile, on 04.05.2011, the accused/A-l^allegedly confessed before P.W.S /Thagali Salnaial-,^{maternal Uncle of} the deceased stating that on 06.12.2010,^{he along with other} accused committed the murder^{of the deceased' The said} murder was on account of^{quarrelthat ensued in between} them while discussing about^{village funds and developmental} activities. On the basis of extra^{judicialconfession madeto} P.W.s, the accused Nos.l to 4^{were arrested and sent to} judicial remand. The Police concluded investigation and^liled charge sheet. I,earned^{SessionsJudge examined P.Ws.l to 15}

¶34

J

¶35

4.,

¶36

and marked E:l:;.P. 1 to P.20. The evidence in the present case is circumstant e 1 in nature

¶37

l,earn.ed Sessions Judge gave the following rea sons for acquitting l.he r:cused:-

¶38

P.Ws. .2 and 4 stated that they have seen A-2 and the der:ee sed, however the evidence of P.Ws. I ald 2 was an impro r:ment subsequently.

¶39

The orl.y witness P.W.4 who allegedly sarv the accused and the <tt:ceased consuming liquor was declare,l hostile to the lrlosecution case, since he did rLct support prosecuti cn version.

¶40

P. W s .⁽ , and 7 who were independent '"r.itn es ses also turned hrx;tile and did not support the prose,:rrti,ln case. The prosr <:ution relied on the evidence of P.Ws 6 rtnd 7 to speak at c,ut the accused and the deceased k;.st seen consumir.[] alcohol on the outskirts of Alair vill,egr:.

¶41

P.W.S tr whom extra judicial confession we.s made is an iiliterate person doing agricultural works.^'l'hr:re is no reason as to why A-2 would go to P.W.S after 5 months and confr:r;s about a-lleged commission of mu:d,,:r along with othe^- accused.

¶42

4

¶43

,1

¶44

The medical evidence^{has not conclusively stated that} the death was homicidal.

¶45

The Investigating. Officer^{except confessiondid not} come up with any concrete^{evidence tosupportthe} version of prosecution regarding^{complicity ofthe} accused in committing the murder^{of the deceased.}

¶46

Learned counsel appearing for the

¶47

appellant/complainant would^{submit that confessionmade to} P.W.S ought to have been^{considered by the learnedSessions} Judge. Right from the^{beginning,P.W.1 was saying that her} deceased husbald was^{having illicit relationwith Thagali} Kasamma for which reason^{death happened.In the said} circumstances, the acquittal^{has to be reversed and theyhave} to be convicted.

¶48

7 . The case is one of circumstantial^{evidence.The Hon'ble} in Sharad Birdhichand^{Sarda v. State of} Supreme Court Maharashtrar, laid principles as^to the^Acceptanceof circumstantial evidence^{and the basis} to record conviction, which read as under:-

¶49

"1. the circumstances^{from whicht}le} conclusion of guilt is to^{be drawn shouldbe}

¶50

'^{(1984) 4 scc 116}

¶51

5

¶52

full-^. established. The circumsta rc,rs con ::rned 'must' or 'should' arrd not 'mil. t e' e stz trlished;

¶53

2 . the facts so established shou1,1 I re con l: stent only with the hypothesis of the grril . of t re accused, that is to say, they should n rt be :xplained on any other hypothesis exce.;rt t ha :he accused is guilry;

¶54

tlr,: circumstances shouid be of a conclusLve n zrb r.-e and tendency;

¶55

4 . :hey should exclude every possrib .e hyp rihesis except the one to be proved: an<l

¶56

tlrr:re must be a chain of evidence so conU,le fe as , ()t to leave any reasonable ground fcrr tlr.e con{ )lusion consistent with the innocence of the accr rs;ed and must show that in all hurna n prol 'zrbility, the act must have been done. try tt e accr rsed."

¶57

The ini tia I theory of the prosecution is that tht: c eceased was having il1 cit relation with Thagali Kasammzr for which reason he rvar, murdered. However, during the ccurse of investigation, .he reason given for alleged murder of the deceased was on account of quarrel that took pl,lcr: about village funds a nd its utility in between the accuse,l md the deceased.

¶58

P.Ws. t atd 2 who are mother and daughter of the deceased have given an improved version in the Cour t below stating several aspects which were not stated at ttLe earliest

¶59

6

¶60

point of time either in the complaint or in their statements recorded under Section 161 Cr.P.C.

¶61

P.Ws.4, 6 and 7, prosecution witnesses were cited to speak about the deceased being last seen in the company of the accused consuming liquor, however, all of them have turned hostile to the prosecution case.

¶62

Five months after the incident, A-2 going to P.W.5 and confessing about death cannot be believed. No reasons^are given as to why A-2 would go to P.W.5, who was not even considered as elder in the village and confess to him.^Extra judicial confession is a weak piece of evidence and can be relied on only with substantive corroboration from other circumstances.

¶63

The case of death was stated as asphyxia due to lungs^as air bubbles were present in the lungs. The conclusion of^the learned Sessions Judge that prosecution could not^prove that death was homicidal is appa-rent from the Doctor's^evidence. Both the Doctors i.e, the Doctor who initially conducted^post mortem examination and the Doctor who conducted^re- postmortem after exhumation of body, stated that death^was on account of asph5n<ia.

¶64

7

¶65

In cases tl acquittal, the Hon'ble Supreme Coltrl in Raui .^Shanna o. tltate (Goaernment of NCT oJ Delhi) and. anothef , helrl that while dealing with an appreal against acquittal, the z ppellate court has to consider wheth,--r the trial Court's vieu' c an be termed as a possitile one, particularly when evidence on record has been analysed. The rt:ason is that an order ,tf acquittal adds up to the presu m lttion of innocence in fr vour of the accused. Thus, the appellate court , has to be relati a:ly slow in reversing the order of the trial court rendering acqu ttal.

¶66

\

¶67

\n Ghure,q Lal a. Sto:te of tlttar pradesh'tl.e Hon,ble Supreme Court rrfter referring to several Judgments regarding the settled prin:iples of law and the powers of appel.ate Court in reversing the order of acquittal, held at paraTO, as follows:

¶68

'7O In tne light of the aboue, the High Court anct. cther appellate C( Ltts should follou the u,rell_settled. pi"tct,cles crystallizeLT b,1 number of Judgments if it is going to ouetntte or othentise ,Cis t"rb the tial court,s acquittal:

¶69

TL'.e , rypellate court may onlg ouemtle or othttrz ise disturb the tn.al court's acquittal if it has^.uery subst ar tial and compelli tg reasons,' for doing so.

¶70

A nurnb,zr of instances arise in tthich the appello.te. c turt uLould haue "r ery substantial and compelling reason^s" to tlist,ardthe tial <:ou 1's decision. "Very substantial and compelting reasons" eist tuhen:

¶71

2 1ZOZZ1^{a Supreme} Corrrt Cases 536

¶72

'(2008) 10 Supreme G,Lrt Cases 450

¶73

8

¶74

i)TLetialcourt'sconclusionuithregardto thefactsis palpablg urong: ii)Thetrialcourt'sd,ecisionwasbased onanerroneou.s uieutof law;
iii) TLetialcourt's jud-gmentislikelgtoresultin"graue miscarriageofjustice";
iu)Theentireapproach ofthetialcourtindealingutith the euid-ence utaspatentlgillegal; u)Thetrialcourt'sjudgmentu-tasmanifestlgunjustand
unreasonable;
ui)Thetrialcourthasignored theeuidenceormisreadthe
mateialeuidenceorLnsignoredmaterialdocamentslikedging
declarations/ reportofthe ballisticexpert,etc. uii)Thislistis intendedtobeillustratiue,notextaustiue. 2.Theappellate court must alutaysgiueproperueightand con-siderationotLtefindingsof thetrialcourt. 3.Iftu.toreasonableuieu.tscanbereached_onethotleads
toocquifia