The High Court · 2025

by Public Prosecutor, High Court at Hyderabad. ...Respondents/Accused No.1 to 4 ... Respondent Counsel forthe Appellant : T Pushpa Rani Counsel forthe Respondent Nos.1 to 4: Sri V R Machavaram Counsel for the Respondent No.S : Additional Public Prosecutor CRIMINAL APPEAL NO: 276 OF 2025( old CRLRC.No. 2368 ot 20171 . -Ct'l'lqt . Appeal filed under Section 419(4) of BNSS against the Judgment dated 09-05-2017 passed in SC.No.27 of 2011 on the filebf the Court 6f the Vlll Additional Sessions Judge, at Miryalaguda. (Crl.R.C.No.2368 of 2017 filed under Section 397 & 401 of Cr.p.C is converted as CRLA No.276 of 2025 as per court order dated 13-02-2025.) Between: Posham Poorna Chander Rao, S/o Mandal, Nalgonda District. Ayodhya, Rl/o. Auggupally, Tripuraram AND 1 2 Thotti Srinivas @ Sreenu, S/o Ramachandraiah, Caste yadav, Occ:Agriculture, Rl/o Neelakurthi Village, Marripad Mandal, Warangal District. 9opagani Lakshadri, S/o Bharathaiah, Caste Munnurukapu, Occ: Agriculture, Rl/o Neelakurthi Village, Marripad Mandal, Warangal District. ...Appellant I I

3. Adimoola Ravi, S/o. Venkataiah, Caste Mangali, Occ: Barbar, F/o Neelakurthi Village, Manipad Mandal, Warangal District

4. Thotti Venkanna, S/o Ramulu, Caste Yadav, Occ: Agriculture, R/o Neelakurthi Village, Manipad Mandal, Warangal District.

5. Mukkoti Shiva Kumar, S/o Ramachandraiah, aged 26 years, Caste Munnurukapu, Occ Centering Worker, R/o Neelakurthi Village, Marripad Mandal, Warangal District. ...Respondents/Accused No.2 to 6 6. The State, through lnspector of Police Miryalaguda, Nalgonda District Rep. by Public Prosecutor, High Court at Hyderabad. ...Respondent Counsel forthe Appellant:Sri T Pushpa Rani Counsel for the Respondent Nos.1 to 5: Sri Manoj Maharaj Ganji Counsel for the Respondent No.6 : Additional Public Prosecutor The Court delivered the following: COMMON JUDGMENT I 5 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SHRI JUSTICE J.ANIL KUMAR CRIMINAL APPEAL No.589 OF 2017 and CRIMINAL REVISION CASE Nos.2338 and 236a of 2o17 converted as c.RIMINAL APPEAL Nos.275 and 276 of 2025 COMMON JUDG MENT : (per Hon'ble Sri Justice K.Surender) Criminal Appeal No.589 of 2Ol7 is filed by accused in S.C.No.27 of 2O7l questioning his conviction and No.1 sentence under Section 3O2 r/w 149 of IpC.

2. In all, 10 accused were tried for the very same offence. Accused Nos. I to 6 were tried in S.C.No.27 of 2O I I and accused Nos. 1 to 4 were tried uid.e S.C.No.374 of 201O. Initially, accused Nos. I to 6 were charge sheeted for the offences under Section s I4Z, 148,302, and 12O_B r/w 149 of IPC. Aggrieved by the deletion of the names of four other accused in the charge sheet (who are accused Nos.l to 4 in S.C.No.374 of 2010), p.W. 1 filed a private complaint before the learned Magistrate. The learned Magistrate enquired in accordance with Section 200 Cr.p.C., took cognizance of the offence and numbered it as p.R.C. The case was committed to the Court of Sessions. After committat, the sarne was numbered as S.C.No.374 of 2OlO. Learned Sessions Judge 6 tried both, the S.C.No.27 of 2Ol1 (against 6 accused) and S.C.No.374 of 2010 (against 4 accused on the basis of private complaint) together and disposed both the cases by way of a common judgment. After trial, the learned Sessions Judge found that only accused No.1 in S.C.No.27 of 2Oll was guilty and all the other 9 accused were not guilty. 3 P.W. l-complainant filed Crl.R.C.No.2338 of 2Ol7 questioning the acquittal of accused Nos. 1 to 4 in S.C'No.374 of 2010 and Crl.R.C.No.236B of 2Ol7 questioning.the acquittal of accused Nos.2 to 6 in S.C.No-27 of 2Oll- The Hon'ble Chief Justice directed both the Cr1.R.C.Nos.2338 and 2368 of 20 17 to be tagged along with Cr1.A.No.589 of 2Ol7 .

4. Learned counsel appearing respondents/accused in revision cases submitted that, against the acquittal of accused, criminal revision cases are not maintainable and the defacto complainant can only file appeal under Section 372 Cr.P.C., or the State has to file appeais against acquittals. Having considered the above submission, it appears that the criminal revision cases were filed on the reasonable belief that the State can only file appeal against acquittal and the de facto complainant has to prefer Criminal Revision. In accordance with Section a01(5) of 7 Cr.P.C., direction is given to the Registry to renumber both the Criminal Revisions as Crimina_l Appeals.

5. Heard.Sri T. Pradhlrrmna Kumar Reddy, learned Senior Counsel appearing for the appellant in Crl.A.No.S89 of 2OlT and also other qounsel in Crl.R.C.Nos.233g and 2368 of 2OlZ and Mr. Dodla Arun Kumar, learned Additional public Prosecutor appearing on behalf of respondent-State.

6. The case of prosecution is that pWl, who is brother of the deceased, lodged a telugu written complaint with ihe Police on 28.O8.2OO9 at 11.45 p.M. In the complaint, pwl narrated that 2 hours prior to the complaint at about O9.45 P.M., his brother namely posham Srinivas, was attacked by accused No. I (Posham Dasaratha) and some others infront of Gopi Chest Hospital, with axes ald knives. The deceased was hacked with axes, while coming from bus stand. Hearing the shouts of the deceased, pWs.l, 3, and 4 went there- The accused were hiding in Gopi Chest Hospital and all the accused came out from the hospital and attacked the deceased. Immediately, the deceased was shifted to area There, doctors informed that condition of the hospital. was serious and while he was being taken to Hyderabad. enroute, the deceased died at around 10.45 p.M. deceased 8 PWI and others returned and the body was then kept in the Area Hospital mortua-ry.

7. The complaint was received by PW14. He registered the .FIR which is Ex.P2 1. Investigation was then handed over to PW15 at 11.45 P.M. PW15 went to the Government Area Hospital where the dead body was kept. From the hospital, he went to the scene of offence. Scene of offence was preserved by posting constables. The next day at 06.00 A.M., PW15 again went to scene of offence along with the independent witnesses, PW1O and another. The rough sketch was drawn, which is Ex.P14. PWIS seized the blood stained axe, a piece of axe stick, towel ald another axe at the scene. One vodka bottle and a pair of black shoes were also found. Further, there was a broken cricket bat at the scene. All the said items were seizbd from the scene and controlled earth was also collected for the purpose of FSL examination. The inquest proceedings were conducted on 29.O8.2OO9, in the hospital and body was sent for post mortem examination. PW12 conducted post mortem examination and found the following injuries: "1. Lacerated would center of left palm with dislocation of 2nd, 3rd,4th left fingers attached only with skin. 2. Lacerated wound left fore arm lx1 inches. 9 '

3. Incised wound skin deep on left chest 18 cm x I cm. 4. Incised deep would left chest 8 cm x 7 cm deep x vz cm. 5. Lacerated would left chin 6 yz xyz cm x 1 cm. 6. Incised wound left side neck 6 yz cm x 3 cm x 2 cm, with cutting of vessels, nurves ald muscles of left side neck. 7. Incised wound left fore head 10 cm x yz cm extending to the left eyebrow. 8. Y shaped incised wound right parital region 15 cm x3 cm x 2 cm long from the center of it to the center of scalp 8cmx3 cmx Yz cm. 9. Lacerated comminuted wound with both bones outside at lower I /3.a of right fore arm. 10. Incised wound left side nose 14 cm x 3 yz x 3 cm extending to the upper lip. Interna-l Injuries:

11. Fracture of left frontal bone corresponding to injlry No.7. 12. Irregular skull fracture y shaped corresponding to injury No.8, with brain matter outside the skull."

8. The doctor opined that death was on account of multiple injuries. On 16.11.2O09, pWl3 conducted Test Identification Parade in the Sub Jail, Miryalaguda. There, the witnesses PWs.2, 3, 4, and one person namely G. Srinivas (whose name was mentioned in the complaint) participated in the Test Identilication Parade. There, the witnesses identihed the accused Nos.2 to 6.

9. The appellant and other accused were arrested on O4.O9.2OO9. Cell phones of accused were seized from their possession. After concluding investigation, charge sheet was i l0 filed only against accused Nos.1 to 6 under Sections 147, 748, 3O2, and 120-B r/w 149 of IPC. The names of four accused were deleted by the Poiice. iO. Aggrieved by the non inclusion of 4 accused, a private complaint was ' filed by PW1 . On the basis of statement recorded, the concerned Magistrate took cognizance of the offence and committed the case to the Court of Session' As already stated, both the Sessions cases were tried by the learned Sessions Judge and common judgment was passed' Only accused No.l was convicted and all the remaining accused were acquitted. Criminal revision cases were filed questioning the acquittal in both the Sessions Cases' 1 1. In accordance with Section a01(5) of Cr'P'C', criminal revision cases were directed to be converted as appeals'

12. PWs.l to 5 and' 7 stated before the Court that they witnessed the incident. All of them stated that it was accused No.1, who hacked the deceased on his head, chest, neck, and other parts of the body.

13. The motive for murder as projected by the prosecution is that the deceased and the appeliant were running Medical Shop in Sridevi Hospita-I. Losses were incurred in the l1 business and disputes arose in between the deceased and the appellants. Further, the deceased set up his own business by constructing a building. The appellant asked the deceased to lease out the premises which request was denied. The appellants bore grudge and attacked the deceased with the help of other accused.

74. Learned Senior Counsel for accused No. 1 would submit that i) The presence of eye witnesses is ruled out by the Investigating Officer. ii) The police Station was within I k.m. distance from where the incident happened, however, the FIR reached the Court on the next day at I 1.30 A.M. The said delay is not explained by the prosecution. iii) Though, pWl stated that he was present at the scene, no blood was found on his clothes nor his clothes were seized. If at all pWl and others have shifted the body of the.deceased to the hospital, it is natural that blood stains would have passed on to the wearing apparel of the witnesses pWs. 1 to 5 and 7.

15. On the other hand, learned public prosecutor would submit that there is no reason why pWs.l to 6 would speak fa-lse against the appellant. Since there is abundant corroboration in between eye witnesses, their evidence calnot be disbelieved on the basis of the Investigating Oflicer,s t2 evidence. The presence of PWs. 1, 3, and 5 is mentioned in the complaint.

16. Learned counsel appearing in the appeals against acquittal would submit that there is conrrincing eye witness account and the deceased was attacked in a brutal manner. Learned Sessions Judge found that there was unlawful assembly and convicted the accused No.1 under Section 302 r/w 149 of IPC. In the said circumstances, when learned Sessions Judge found that there was unlawful assembly, learned Sessions Judge erred in extending bene{it of doubt to other accused Nos.2 to 10. The Sessions Judge ought to have convicted atl the accused with the aid of Section 149 of IPC. 17 . Firstly, it has to be seen whether the complaint was lodged in time. According to PW14, Telugu written complaint was received at 11.45 P.M. on 2B.OB.2OO9. Immediately, PW14 registered the FIR and informed PW15 the investigating ofhcer.

18. PW14 in his cross examination stated that the report along with FIR/Ex.P21 reached the JFCM, Miryalaguda at 1 1.20 A.M. on 29.O8.2OO9. He further admitted that distance t3 between Police Station and JFCM Court is yz k.m., ald if one goes on foot from the Police Station to the JFCM Court, he would reach within 1O minutes. The prosecution has not elicited any reasons for the delay of nearly 11.00 hours 45 minutes, for the FIR to reach the concerned Court. The said delay was not explained. The delay gains importance in the back ground evidence of Investigating Officer pW15,s evidence. PW15 stated as follows during cross examination: I "10. I have gone through the contents of First information Report prior to commencing my Investigation. PW-1 stated in his report that he wenl to t}te scene of offence on hearing the cries. It is true PW-l did not reveal in Ex.p-1 about the presence of PW 2. It is true as per the contents of Ex.p-l the use of Cricket Bat was not stated. I did not mention in E.x.P-4 that PW-1 as an eye witness and also names of any other persons. I did not mention the names of eye witnesses in column.no.9(a). 1 1. According to my investigation, G. Srinivas(LW_5) was with the deceased. According to the statement of G.Srinivas (LW-5) the remaining witnesses came after the incident, Witness volunteers ttrat according to the statement of G. Srinivas (LW-S) the remaining witnesses came while the incident was going on. It is true that A-2 to A-6 were strangers to pW_ 1. It is true that I made requisition before the Magistrate to identify the accused ttrrough pW-l. I did not receive summons from the court for pW- I to participate in Identification Parade. It is trre none of the wiinesses stated before me about the physical features of the accused participated in the commission of offence. In my invesligation none of the uritness stated that lhe accused no.1 particularly beat with any object or also armed with a,ny object. t4

12. PW- 1 did not state before me the A- t hacked with Axe on the head and chest of deceased. PWl stated before me as in Ex.D-1 to D-3.

13. PW- 1 is not resident of MiryaJaguda town. According to my investigation PW- 1 runs kirana shop in Duggepally village and he came to purchase kirana saamans. It is not tme to say, that initially I suspected PW- 1 for the murder of the deceased,

14. PW-1 did not state before me that A-1 beat his brothei-in-law with Axe on his head and on his neck and also presence of Kurra Koteshwar Rao and Srinivas Murthy and also that al accused surrounded his brother in-law ald that he heard sound like pat. PW- 1 did not state before me that A- 1 to A-10 came from Gopi chest Hospital suddenly. PW- 1 did not state before the Magistrate that A- 1 beat his brother-in-law with Axe on head and neck. It is true PW-2 stated as in EX.D-4.

17. I do not know PW-5 and PW-7. My investigation does not reveal their presence at scene and witnessing the incident."

19. The crucial witness, namely G.Srinivas, who was shown as LWS in the charge sheet, was given up during course of trial. No reason is given as to why G.Srinivas was given up during the course of trial. It is admitted that other than accused No. 1, PW1 is not acquainted with any of the other accused Nos.2 to 6, who were charge sheeted initially. They were all strangers. No descriptive particulars are given by PW 1 in his complaint about accused, other than accused No. 1. Even during the course of TI Parade, all the accused (accused Nos.2 to 6) complained to the Magistrate that they were shown to the witnesses before the TI Parade was 15 conducted. The same was noted down by the learned Magistrate in the Test Identification proceedings, which is Ex.P2O.

20. The Honble Supreme Court in Rajeeoan o;nd. alnother a. Stdte of l{eralat, found that non-explanation of the delay in sending FIR to the concerned Court would be fatal to the prosecution. The Honble Supreme Court held as follows: "12. Another doubtful factor is the delayed lodging of FIR. The learned counsel for the appellants highlights this factor. Here it is worthwhile io refe. Thulia Kali v, State of T.N. wherein the delayed filing o-f FIR and its consequences are discussed. At para 12 this Court says: "First information report in a criminal case is an extremely vital and va_luable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect oCcommissioi oi an offence is to obtain early information regarding the circumstances in which the crime -"" "omhitt"dl th" names of th€ actual culprits and-the part played by them as well as the names of eyewitneises present ai the scene of occurrence. Delay in lodging the first information report quite often - re-sults in embellishment which is a creature of d afterthought. On account of delay, the report not only gets bereit of the advantage of spontaneity, danger cieips in of the introduction of coloured version, exaggerjed account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. " ' (2003) 3 scc 3ss l6

13. This is the position consistently followed by this Court in Maharaj Singh v. State of U.P.2 and recently in Thanedar Singh v. State of M.P.3

14. As feared by the learned counsel for the appellants, the possibility of subsequent implication of the appellants as a result of afterthought, maybe due to political bitterness, cannot be ruled out. This fact is further buttressed by the delayed placing of FIR before the Magistrate, non satisfactory explanation glven by the police oflicer regarding the blank sheets in Ext. P-30, counterfoil of the FIR and also by the closely written bottom part of Ext. P-1, statement by PW I . All these factua-l circumstances read with the aJorementioned decisions of this Court lead to the conclusion that it is not safe to rely upon the FIR in the instant case. The delay of 12 hours in Iiling FIR in the instant case irrespective of the fact t.llat the police station is situated only at a distalce of lOO metres from the spot of incident is another factor sufficient to doubt the genuineness of the FIR- Moreover, the prosecution did not satisfactorily explain the delayed lodging of the FIR with the Magistrate.

15. This Court in Marudanal Augusti v. State of Kerala while deciding a case which involves a question of delayed dispatch of the FIR to the Magistrate, cautioned that such delay would throw serious doubt on the prosecution case, whereas in Arjun Marik v. State of Bihar it was reminded by this Court that: "The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intenLion is implicit with the use of the word 'forthwith' occurring in Section 157 CrPC, which mears promptly and without alry undue delay. The purpose ald object is very obvious which is spelt out from the combined reading of Sections 157 ald 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story ald introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation." 17 21 . According to PW 1 , there were disputes between the deceased and accused No. l in respect of running medical shop. In the back ground of delay of I t hours 45 minutes for the FIR to reach the Court and also investigation disclosing that PWs.l to 5 and 7 were not present at scene, as admitted by Investigating Officer, the delay gains sig:nificance. In the present facts of the case, it appears that after finding that the deceased was attacked, there were due deliberations, which resulted in Ex.Pl complaint implicating the appellant and other accused. As already discussed, there was a delay of 1l hours 45 minutes in the complaint reaching the Court. The Court was at a walkable distance of 10 minutes from police Station.

22. Learned Sessions Judge has convicted the accused No. I under Section 3O2 with the aid of Section 149 of IpC. One person cannot be convicted with the aid of Section 149 of IPC. Section 149 of IpC enables for conviction of every member of a group, who had a common object to commit an offence. Unlawful assembly is defined under Section 141 of IPC. An assembly of 5 or more persons is designated as arr unlawful assembly and any act done in pursuance of I I 18 common object of the group, every member of the said assembly would be responsible and can be convicted.

23. The Honble Supreme Court in Mdhendra &, another a. Strrte of Mad.hga Prad.esh2, held as follows: "The legal position in regard to essential ingredients of an offence referred to in Section 149 are not in doubt- Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. lt may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where hve or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an essential condition of an unlawful assembly that its membership must be five or more. At the same time, it may not be necessa5r that ftve or more persons necessarily be brought before the Court and convicted, Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and unnamed."

24. Another doubtful aspect of the prosecution case is how did all the accused know that the deceased would pass in 2 2022 LiveLaw (sc) 22 I I l9 front of Gopi Chest Hospital, at the relevant time. None of the witnesses stated that the deceased would pass by Chest Hospital everyday during night. It is not clear as to where the deceased went and returned from the bus stand on the date of incident. PW 1 is not shown in the inquest as an eye witness. PWs.3 and 4 were not present during inquest. The eye witnesses are all related and interested. The unexplained delay in FIR reaching Court and all other factors create suspicion regarding the prosecution case being correct.

25. In view of the fore going discussion, since the prosecution failed to prove the involvement of accused Nos.l to 10 in the murder of the deceased, beyond reasonable doubt, both appeals of de-facto complainant fail. Further, the appeliant/accused No.l in Crl.A.No.589 of 2Ol7 succeeds.

26. In the result, Criminal Appeal No.589 of 2Ol7 is allowed. 27 . The criminal appeals filed questioning the acquittal of accused Nos.2 to 6 in S.C.No.374 of 2OlO and accused Nos.2 to 6 in S.C.No.27 of 201 I are dismissed.

28. The sentence and conviction imposed against the appellant/accused No. I in judgment dated O9.05.2017 in 20 S.C.No.27 of 2Ol1 is hereby set aside. Since the appellant is in jail, he shal1 be released forthwith, if he is not required in any other case. sD/- c.v. MALLTKARJ u NA l$![f; : /iTRUE COPY// / SECTION OFFICER One Fair Copy to the Hon'ble Sri Jqstice K Surender iiSi Hit LordshiP's kind Perusal) AND One Fair Copy to the Hon'ble Sri Justice Anil Kumar Jukanti lJrrE I qrr --'irot-tii" Lordship's kind Perusal) To

1. The Vlll Additional Sessions Judge' at Miryalaguda(With records' if any) i. in" iro"irl First Class Magistrate at Miryalaguda 3. The superintendent, oi"ii.[iJuii, Natgonda ( By Speed Post) 4. The lnspector of Police, ft'f iw'f'g'0" Folice Station' Miryalaguda 5. 11 LRCopies 6. The Under Secretary, Union of lndia' Ministry of Law' Justice and Company , +ffi'!:)#,?,"flro"rtu' Association Library' Hish court ror the state of ' i"["tiJ."' Hlgh Court Buildings at Hvderabad- -. . ^ a. o"n"'ic t"'srii s Rnirudn Reidv' Advocate{oPUCl ;. il; aa i; i Pushpa Rani' Advocate [oPUCl ^- io 5li" cc io sriV R Machavaram' Advocate toP-U^g1 i;.6;; cc i" sri Manoi lVlaharaj Ganji' Advocate loPUCl 12.Two ccs to the prori" prilJiul"r, iigr, court fbr the state of relangana at Hyderabad [OUTI CD Co pres q '13.7 ADK HIGH COURT DATE D: 1 310212025 COMMON JUDGMENT -R .tHE S14 /(: 25 rEB zffi t) ,11 ,Y '.::r'. {' ] t, 1i CRLA.No.S89 of 2017,275 & 276 OF 2025 ALLOWING THE CRLA No.589 o12017, DISMISSING THE CRLA.No.275 of 20Zs (Old CRLRC.No.2338 of 2017) and CRLA.No.276 of 2025 (Old CRLRC.No.23G8 of 2O1Tl il,{