Engali Rajababu v. The State of Telangana State

JUDGMENT: @er Hon'ble Sri Justice K.Strender) 1. The Appeal is filed by the appellant aggrieved by the judgment dated 07.11.2077, in S.C.No.256 of 2012, on the file of III Additional District & Sessions Judge, Asifabad. The appellant was convicted for the offence under Section 3O2 of IPC.

2. Heard learned counsel for the appellants and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent-State.

3. Briefly, the case of the prosecution is that P.W.6 took the appellant to the police station and gave statement to the Police alleging that the appellant killed the deceased. The statement of P.W.6 was taken down in writing, which is Ex.P.2. However, P.W.6 turned hostile to the prosecution case, during trial.

4. After the appellant was taken to the police station around 9:15 p.m. on 02.06.2012, P.W. 14, who is the Investigating Officer, examined P.W.6. He also recorded the statement of one B.Srinivas Reddy (not examined). In the night, he secured the 1 presence of P.W.8 and P.W. 10 and interrogated the appellant in their presence. The appellant confessed about committing the murder of the deceased and informed that the dead body was buried in Godavari River. The appellant also informed that he kept the gold pustela thadu of the deceased in the auto, which was used to carry the dead body, and took the Police to the auto to show the pustela thadu. The auto and pustela thadu/M.O.2 were seized. Since it was late in the night, P.W. 14 informed P.W. I and asked him to come to Godavari River, near Erraipet. Ex.P.7, which is confession panchnama, was recorded on 02.06.2012, at lO p.m., in the presence of P.W.B and P.W.i0.

5. P.W. 14 asked P.Ws.3 and 5 to come to Godavari River. There, in the presence of P.W.3 (VRA), P.W.5 (VRA), P.W.B and P.W. 10 (independent witnesses), P.W. I 1/Tahsildar and P.W. l4/Inspector of Police, the appellant pointed out the place where the dead body was present. According to the prosecution case, the body was buried 3 feet under the sand. P,Ws.3 and 5, along with appellant, dug out the dead body and the body was identilied as that of the deceased. Panchanama/Ex.P.8 was prepared at the scene, i.e., on 03.06.2012, at 9 a.m. I

6. The body was sent for post mortem examination. The post mortem was done by P.W.l2/autopsy Doctor. According to him, the death must have taken place 36-42 hours prior to autopsy, and death was on account of pressure over the neck caused by ligature strangulation. Ex. P. 1O is post mortem certificate. In the examination, P.W. 12 denied the suggestion that the dead body was not in a putrelied condition and not fit for autopsy.

7. During investigation it was revealed that, the deceased, who is the wife of P.W. 1, eloped with the appellant, by taking gold and Rs.6:3,00O/- cash from the house of P.W.1. P.W.4 is the house owner, in whose house, the appellant and the deceased stayed together for nearly 2O days. After two or three days, the deceased and the appellant left the house, and thereafter, P.W.4 came to know about the death of the deceased. P.W.9, who belongs to the same village, was examined to state that both appellant and the deceased were found together and on the same night, P.W. 1 informed P.W.9 that he kept Rs.1,OO,00O/- in his house, which he got by the sale of cotton. However, the amount was not found in the house and the P.W. 1's deceased wife also left the house.

8. On the basis'of circumstantial evidence, the appellant was arrested and produced before the concerned Magistrate. Charge sheet was laid under Section 3O2 of IPC, after investigation was concluded.

9. Learned Sessions Judge found that it was the appellant, who had committed the murder of the deceased and accordingly, convicted him.

10. Learned counsel appearing for the appellant would submit that identification of the dead body was not established. The independent witnesses/P.W.B and P.W. 10 to the confession and pointing out the dead body on the next day of arrest of appellant, have turned hostile. According to the prosecution, the accused was identified at the instance of P.W.6, who brought the appellant and handed over the appellant to P.W. 14. However, P.W.6 also turned hostile to the prosecution case. In the back ground of non-examination of one Srinivas Reddy, who went along with P.W.6 on 02.06.2012, to Police Station, and hostility of independent witnesses, P.W.B and P.W. 1O, coupled with the fact that the dead body was not identified by the husband/P.W. 1, the question of conviction on thb basis of circumstantial evidence, is improper. 1

11. Learned counsel relied on the judgment of the Hon'ble Supreme Court in Kuldip Singh and Another v. State of Punjabr. In the said judgment, the Honlcle Supreme Court was dealing with a situation where there were contradictions in between the versions of the witnesses and the date of arrest was also doubtful. The relevant paragraph reads as under:- "On the other hand, ute houe the euidence of PW-12, tle Inuestigating Officer. He has stated that he had seorched for the occused on 19.O2.1994 but theg could not be traced. On 20.02.1994 also Le searched for them but theg could not be found. On that dtry Sarponch of the uillage cdme to the place of ocanrrence and gaue a statement before him under Section 161 Cr. P.C. On the following dag, i.e. 21.O2.1994, u-then he along uith other police officials uas present on the bridge of the cana| the Sarpanch, namelg, Buta Singh produced the three acansed before him. It ttould thus appear that according to the Inuestigating Officer the statement of Buta Singh utas recorded on 2O.O2.1994. On the follotting dag, he produced the acatsed before him. There is obuious inconsistencg in the testimong of these tuo uifnesses. The case o-f the proseantion as put forth before the Court is that the accused tuere produced bg Buta Singh, PW-S before the Inuestigating Officer, PW-12 on 21.02.1994. The Etestion t (zooz) 6 scc 757 I is as to when the accused confessed tLLeir guilt before Buta Singh, PW-8. If Buta Singh is to be belieued, the ocansed confessed their guilt before him on the same dag on u-thich he produced them before the police. According to him, the accused tuere uaiting in his house uthile he uent to meet the police offtcer. He categoricallg denies hauing mode ang earlier statement before the police on 2O.02.1994. On the other hand, according to the Inuestigating Offi.cer, PW-12, Buta Singh had mad"e statement before him on 20.02.1994 and had thereafter produced the accused before him on 21.02.1994. The euidence of these tuo witnesses giues ise to a lot of uncertaintA as to tuhether the confesslons utere made on 2O.02.1994 or on 21.02.1994 and also uthether the accused were taken into custody on 2oth or 21st February, 1994. If it is belieued that Buta Singh had produced the accused before the police on the same date on uhich he made a statement before the Inuestigating Officer, then it must follou that the acansed were token into custodg on 20.02.1994. If the confessions u.;ere made by them on 2 1 .02. 1994 u.thile in custody, they uill be inadmissible in euidence. At the same time there is considerable doubt as to tlhether the confessions u)ere made before Buta Singh on 2O.02.1994. As it is, an extro judicial confessiory is considered to be o ueak tgpe of euidence. In tle instant case such extra judicial confession b said to haue been made before a taitness u.tho stands thoroughlg discredited in his cross examination. He has resiled from the uersion disclosed by him in the course of inuestigation and recorded under Section 161 Cr. P.C. His I euidence does not inspire confidence. In addition, his euidence read together uith the euidence of PW-12 creotes considerable doubt as to uhether the accused confessed their guilt l:efore Buta Singh, PW-S on 20.02.1994 or 21 .O2.1994. Counsel for the appellants drew our attention to Ex. PC, uthich u.tas the requisition sent bg the Inuestigating Officer to the Sub Ditisional Magistrate, Zira requesting him to get the bodg exhumed. His letter states that the accused had admitted hauing committed the murder of Kuldip Kour. The Inuestigating Officer in the course o./ his cross exanination hrls admitted that the date usritten on the said requisition was 20.O2.1994 but the same has been struck oJf and in its place the date 21.O2.1994 has been turitten. In normal course tae uould not attach much significance to such correction being made, but hauing regard to the euidence on record this correction of the date on Ex. PC acquires significance. Hauing regard to the euidence on record, tue are satisfied that the euidence adduced bg the prosecrttion to establish the fact that the appellants had confessed before Buta Singh on 21.O2.1994 is inconsistent and does not inspire confidence. The prosecution, therefore, Lms failed to establish the first circumstance in the circumstantial chain."

12. On the other hand, learned Public Prosecutor submits that the recovery of dead body was mentioned by P.Ws.3, 5, B, 10, 11, and 14. There are witnesses, who spoke about the appellant and the deceased going together. For the said reason, when the dead body was found at the instance of the appellant, 1 it can be safely inferred that it was the appellant, who had committed murder of the deceased.

13. The prosecution relied on the following circumstances: 1 2 J 4 5 Missing of the deceased on O1.06.2012. The appellant and the deceased staying together in the house of P.W.4. The arrest of the appellant on 02.06.2012 (P.W.6 turned hostile.) The confession of the appellant on 02.06.2072 at 1O p.m. vide Ex.P.7 and seizure of auto and M.O.2/pustela thade. Pointing out the dead body on 03.06.2012 at 9 a.m. in the presence of P.W.B and other witnesses. -

14. The crucial evidence that has to be determined is whether the hostility of P.W.6, and P.Ws.S and 1.0 partially turning hostile to the prosecution case, will have any effect on the prosecution case.

15. PW.B stated that he ',i/ent to Godavari River, Erraipet around 9 a.m., and there he saw the appellant in the custody of the Police. The appellant informed the Sub Inspector of Police that he buried the dead body of the deceased in the sand of the river. The appellant also showed the place where it was buried. I Then, the said place was dug and dead body was found. P.W.S further stated that he signed the inquest report and other documents. P W.8 was declared hostile to the prosecution case. t6. P.W.10 stated that he went to the police station, where the appellant was interrogated in his presence and also P.W.8 was present. The Police recorded Ex.P.7/confession panchnama. 'lhen the appellant took the Police and others to Erraipet, Godavari River area, where the appellant had shown the place where the dead body was buried. When the said place was dug, the dead body was found. The police prepared inquest report, r,vhich is Ex.P.8.

17. P-w.3 (VRA), P.w.s (VRA), P.W.10 (MRO), and P.W.11 (Tahsildar) were requested to be present at Godavari River on

03.06.2012. According to P.Ws.3, 6, and 11, the appellant had shown the place stating that he had buried the dead body there. At the instance of the appellant, P.Ws.3 and 5 dug the place 3ft belour the surface of the river bed, and found the dead body.

18. P.W. 14, who is the Investigating Officer, was also present. The hostility of P.W.8, in the present circumstances, is of no consequence. Since P.Ws.3, 5, and 11, who are independent witnesses and responsible Government servants, were present when the place where the dead body was buried was shown by the appellant. Under Section 27 of tbe Indian Evidence Act, any fact that is discovered pursuant to a confession would be admissible. Record does not reveal that the place, where the dead body was found and dug at the instance of the appellant, was known to anyone else or that anyone other than the appellant had knowledge about the place of burial. Pointing out the place on 03.A6.2012, i.e., next day of arrest of the appellant, and hostility of P.Ws.8 and 10, is of no consequence, and said hostility cannot form basis to disbelieve the evidence of P.Ws.3, 5, 11, and 14. The Investigating Officer explained that they did not go to the river on 02.06.2012, since it was late in the night. Though the appellant confessed on 02.06.2012, about the dead body being buried in the Godavari river area, that does not mean that anyone had the knowledge about the exact location where the body was buried. The Police Officer only knew that the dead body was in the Godavari river area, but the exact location of the body was known only after the appellant pointed it out. Admittedly, Godavari river area is a very large area.

19. In fact, P.Ws.8 and 10 supported the case of the prosecution to arr extent of there being a panch at the scene 1 and body being found at the instance of the appellant. Post mortem Doctor conducted autopsy and gave opinion that the death was homicidal on account of manual strangulation.

20. The case is one of circumstantial evidence. The Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtraz, laid principles regarding the acceptance and the basis to record conviction, in cases of circumstantial evidence, which read as under:- the circumstances from which " 1 . conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not'may be' established; 2. the facts so established should be consistent only with the hypothesis ofthe guilt of the accused, that is to say, they should not be explained on any other hypothesis except that the accused is guilty; 3 the circrrmstances should be of a nature and tendency; conclusive

4. they should exclude every possible except the one to be proved; and hypothesis

5. there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused a:-rd must show that in all human probabili[r, the act must have been done by the accused." 2I. The circumstances relied on by the prosecut.ion dehors the hostility of P.W.6, who has taken the appellant to the police station, is convincing and the circumstances make out a case, '1ts8+y + scc rro which undoubtedly points towards the appeliant as the perperro lol of the crime.

22. Accordingly, the Criminal Appeal is dismissed. Since the appellant is on bai1, he shall be summoned by the concerned Court and sent to prison to serve out the reaming part of the sentence. //TRUE COPY// SD/. K SAILESHI UTY REGISTRAR E ECTION OFFICER The lll Additional District and Sessions Judge at Asifabad.(With records) The Judicial First Class lvlagistrate Chennur. The lnspector of Police, Chennur. The superintendent, central Prison, cherlapally, ltrledchal Malkajgiri District. Two CCs to Public Prosecutor, High Court for the State of Telangana Hyderabad. (OUT) One CC to Sri. P Prabhakar Reddy' Advocate [OPUC] Two CD CoPies i i I I I Tol 1 2 4 5 6 7 DL \q. HIGH COURT DAIED:2510212025 JUDGMENT GRLA.No.376 of 2018 i1-; S T4 ,6 \.)' I0 AFn 2025 a \Ir !;e:]PATQ o , DISMISSING THt:: CRIMINAL APPEAL \ D4"A &"