The High Court · 2025

Counsel for the Appellant No.2: Ms. Y. RATNA PRABHA Counsel for the Respondent: THE PUBLIC PROSECUTOR The Court delivered the following Judgment: -t .*h 3 HON'BLE SRI JUSTICE K.SURENDER And HON'BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.1174 OF 2018 JUDGMENT: (1ter Hon'ble Sri Justice K-Surender) 1 Thi: appellants/Al and A2,were convicted and sentenced to rigorous imprisonment for life for the offence under Section 3O2 IPC vide judgment in S.C.No.424 of 2010, dated 15.09.2017, passed by the III Additional Metropolitan Sessions Judge, Hyderabad. Aggrieved by the same, present appeal is filed'

2. Briefly, the case of the prosecution is that the murder of Smt.Mehraj Fathima (D1) and her husband, Mohd-Ghouse (D2) took place in the house No.19-4-28 1lAl46/1. In the said house, Dl, D2, P.W.2 (son of D1 and D2) were living. On 23-OI-2OO9, around 2.00 p.m, while P.W.2 was flying a kite on the terrace of their house, at about 3.30 p.m, he heard his mother shouting loudly. Upon hearing the shouts, P.W.2 went on to the roof of the bathroom and saw A1 and ,{2 attacking D1 and D2 urith axes and knives. P.W.2 then shouted "Abba Jan". Then, D2 asked P.W.2 to go to Munnu Chacha's house. P.W.2 got down to the ground floor, and while coming out of the house, he saw Sajid (boy juvenile, tried separately in Juvenile Court) standing in front of 4 the house. Im:nediately, P.W.2 went to Mohd. l{haja @ pasha's house (cited as l-.W.7 in the charge sheet, but not examined) and P.W.2 informecl Mr.Pasha about the incident. From there, P.W.2 went to the hou.se of P.W. 1, who is the brother of l)2 (maternal uncle of P.W.2r) and informed P.W. 1 about the incident. P.W.2 also went to the house of Mohd.Taj (P.W.3) and informed him. P.W.3 then went to the house of D1 and D2, aTong with his wife, and noticed th,a: the doors were closed from inside. Then, P.W.3 forcibly openei[ the doors, went inside the house, lrnd saw the .a dead bodies cf D1 and D2. The wife of P.W.3, i.e., P.W.6, informed P.W.1 (brother of P.W.6). In turn, P.W. 1 informed the police by lodgin.g a complaint, Ex.P1.

3. In Ex.Pl, rvhich was lodged at 5.30 p.m, on 23.O1.2OO9, P.W. 1 narrated that D2 is his elder brother and D1 is the wife of D2. Al, A2, and the juvenile boy are the brothers of D1. In the same house, DL, D2, and his family were living in ,tne portion, Al, P'2, and their family members were living in another portion. The said house,belongs to D1. She purchased the L.ouse in the year 1999 frorn the money that she received from her first husband after taking divorce. P.W.1, after receiving information from P.W.6, wen1. to the house and found the dead bo<lies . i_1. 5

4. P.W. 16 worked as Inspector of Police, Falaknuma. On

23.OI.2OO9, around 4.45 p.rn, he received information about the murder of D1 and D2 in their house. He, along with other staff members, went to the scene of offence and preserved the scene by posting guards. At 5.30 p.m, at the scene of offence, P.W. 1 gave a Telugu written complaint, Ex.P1. The said complaint was registered as FIR. The scene of offence panchanama was conducted. P.W.7, Officer of clues team, was asked to collect incriminating material from the spot. P.W.7 collected item Nos.1 { ? to i5, which are, blood stained swabs, control swabs, etc, and two shirt buttons MO7, and items 17 to 20, AS narrated by P.W. 18. The other items, except the two shirt buttons/MO7, which according to the prosecution, are the buttons of A2's shirt, are not relevant for discussion.

5. Further, according to P.W. 16, the photographs of the dead bodies at the scene were taken. The inquest panchanama was conducted at the scene, and the wearing apparel of the deceased were also seized. At the time of inquest, P.W. 16 examined P.Ws.1, 2, 3, 4, 8, Smt.Sahana Bgum (LWs), and Mohd.Khaja @ Pasha (L.W.7). From there, the two dead bodies were sent to Osmania General Hospital for conducting postmortem examination. .''-.. 6

6. On 3O.O1.IZOO9, A1 and ,{2 were arrested. During their interrogation, their confession was recorded and pursuant to the confession, one cargo jeans pant-MOL2 and shi.rt cf AI-MO13 were seized. In. pursuance to the confession of 42, MO15-pant and MO14 one shirt were seized. It was observt:d that two buttons of MOl.zt-were missing. According to the prosecution, two buttons were found at the scene, which is item No. 16, collected by P.W.7. P.W. 10 gave opinion that the two buttons s;eized at the scene belonged to MO14, the shirt of A1. {,:'t 7. According to the prosecution, A1, while attacking the deceased, sustained injuries to his left hand. A1 was treated by P.W. 11on'3O,01.2OO9, and P.W. ll found the followinginjuries: "Contusion. of size of 2 x 1 cm, u.tith hematoma at the iefi hand ouer dorsal a.spect. The injury is 5 fo 8 dags old. I adui:;ed x-rog of lefi hand. tnd I found no bone injury. Hence the aboue injury is simple in rLature. I issued u,tound certificate-uide M.L.C. marked as Ex.P1O."

8. The materia-l objects seized at the scene, as well as and also the wearing.apparel of the deceased and the appellants 1 and 2, were sent for F,SL examination. P.W.2 is the Assistant Director of FSL, who gave the opinion about blood being found on the items which were sent for the examination, and his oF,inion is as follows: 7 "Bloodis detected onitem Nos.1, 2,4, 5,6, 9 to 17, 21 to 26, 28 to 31; Oigin of bloodstains onitem Nos.1, 2, 5,6, 9,10, 12, 13, 14, 17, 2'1 to 25, 29 and 30 is of human blood. Blood group of blood stains on item No. noted belota are as follouts. Item Nos.2, 5, 6, 10, 12, 13, 24, 25 and 29 is of "8" blood group; ItOm Nos. 14, 21, 22 and 23 is of "A" Blood group; Blood is not detected on item No.2O. Origin of blood stains on item Nos.4, 11, 15, 16, 26, 28 and 31 could not be determined. Blood group of blood stains on item Nos.1, 9, 17, 3O coutd not be determined. Blood is not detected on item 1[os.3 & 7, uthich are receiued as controls for item Nos.l, 2 and 4, 5, 6 respectiuelg. Accordinglg, ue issued report-Ex.P9, I also signed on Ex.P9 report along utith PW.LO." {'Y

9. The charge sheet was laid against A1 and ,.\2 before the concerned Magistrate, which was committed to the Court of Sessions. ,A,3, Juvenile boy, was tried by the Juvenile Board/Court.

10. Learned Sessions Judge, placing reliance on the evidence of P.W.2, the disputes in between A1, 42, and the family of deceased, and further, the shirt buttons of ,A.2 being found at the scene, collectively, found favour with the prosecution version, and convicted the appellants. h \ ! c.- 1I :ii1 i, '.tl ;,aJ ', 8

11. According to the prosecution case, P.W.2. who ir; the son of D1 and D2, witnessed. the incident while he was playing on the roof of the house According to the scene of offence peLnchanama, and as admittecl by PW.16, the house of the scene of offence was with asbestos roof. P.W.2 stated that while he was flyiog a kite on the roof, he hetrrd shouts and jumped onto the batLrroom, from where he viewed the murder of Dl and D2. Since tht: house has an asbestos roof, it is doubtful whether PW.2 was flying a kite on the asbestos roof. According to P.W.2, he jumpe,l onto the t l{ bathroom, and from there he viewed the murder. In the scene of offence, Ex.P3-sketch, the bathroom is also covered irL the house. The sketch shor,r,s that there are two bed rooms, orre hall, one drawing room, one kitchen, an attached bathroom, lnd latrine. The dead bodie,s are shown lying in the L-shaped cetrtral hall of the house. In the central ha1l, adjacent houses are shown. However, no ba1-tLroom is shown in the adjacent house. According to the scene of ,lt-fence, the entire house is in 125 sq.yds and the roof of the house is made of asbestos and tin sheets. ln the scene of offence panchanama, it is further mentioned tha': there is a distance of 5 feet in between the toilet and the southern side of the portion, whe:re the dead bodies were found. However, in the s*" 9 scene of offence panchanama, it is not mentioned whether a person standing on the bathroom or the latrine of the house could see what was happening in the L-shaped central hall, where the dead bodies were found. It is not narrated by P.W.2 how he'could see the incident that happened in the hall while standing on the roof of the bathroom. It is not mentioned in the scene of offence panchanama, nor is there any indication in the sketch to show that the roof of the house, toilet room, and latrine are different or that the bathroom's roof is shorter compared to {' t the main house. P.W. 16/investigating officer also did not explain the possibitity of a person standing on the bathroom roof being able to view what transpired in the central hall of the house. L2. The crucial evidence is of P.W.2, who is the son of Dl and D2. Though, P.W.2 claims that he initially informed P.W.3, and when P.W.3's wife, P.W.6, went to the scene, P.W.6 informed P.W. 1, and all of them have arrived at the scene. The police also arrived at the scene. P.W.16 claims that he has examined P.Ws.1, 2 J 4 and 6 at the scene and that the police came to the scene at 4.45 p.m, and P.W.t handed over complaint at 5.30 p.m. However, the name of P.W.2 is not mentioned in Ex.P1 about him witnessing the assault on his parents by the appellants. Firstly, I l l i 10 the possibility of flying kite on al asbestos tin roof is unlikely, and for the reason of name of P.W.2 not being mentioned in the complaint, it can only be inferred that P.W.2 is a planted witness and made to speak as an eye witness to the incident.

13. The other ,:ircumstance relied on by the prosecution are the two buttons that were found in the house. P.W. 1O is the Forensic Science Lab Assistant Director, who gave opinion that the two buttons found zrt the scene were the buttons of shirt that were seized at the in.stance of A2. P.W. 10 stated as follows E- .) " Tu-to broutn colour buttons marked as item No.i9, ond the remaininq Ltuttons stitched to item No.31, phgsicatlg and in strume n1 ally e xamine d. Obseruations:- I found the buttons item No.19, arud the remaining ,ttuttons stitched to Item No.3 7 are possessing similar physicat characteis;t':cs namely, colour, shape, design, number of holes and ,iLleir diameter and, U.V. Jlorescence: Opinion: - Ilctsed on the aboue, I am of the opinion t4at the buttons ltem. No.19, could haue belonged to ltem No.-.; 1. Accordinglll, I haue issued mg opinion on 13.5.2009 Ex.p9 is the repoft issued by me."

14. However, in the cross-examination, p.W. 1O deposed as follows: "Mg obsert,ations are onlg basing on phgsical qppeorance. There is nctthing special or scientific reasons based. .for mg opinion. Generallg, the items No.19 and 37 contmonlg { 11 auailable in the market. confinnatory." It is tnte, rny opinion is not 1 5. As seen from the evidence of P.W. 10, it cannot be conclusively said that the buttons found at the scene were that of the A2's shirt. He admitted that his opinion was not confirmatory and based on the observation of physical appearance of the shirt and buttons. Such inconclusive opinion cannot form basis to infer that the buttons found at the scene were that of 42. L6. The blood stained clothes of A1 and A2 were seized at their c' instance. Howbver, there is no scientific evidence to show that the clothes-MOs.12, 13, 14, and 15, which are the wearing apparel of . A1 and A2, hlad the blood stains of any one of the deceased. P.W.l2, the Assistant Director of RFSL, Visakhapatnam, admitted as follows: "For insufficient quantitg of blood and delaged collection of the samples, its oigin could not be detected."

17. As discussed earlier: 1) Though P.W. l6/Investigating Officer claims that he went to the scene at 4.45 p.m and examined P.Ws.2, 3, and 4 however, the complaint, Ex.Pl given at 5.30 p.m, does not refer to the name of P.W.2 as arr eye witness. I, i.-- 2) The pr,csecution has not provided evidence to show that a person standing on the bathroom roof of the hou,se could see what was happening in the Central Hall, and further, the possibility of P.\M.2 flying kites on the asbestos tin r,cof, is highly improbable. 3) The prosecution could not conclusively pr,:ve that the shirt buttons ficrrnd at the scene of offence belongs to A2's shirt- MO14, which vrzLs seized. 4) No blood stains of the deceased were found on the wearing apparei of the appellants. c-9

18. ..Though the incident happened on 23.O1 .2OOg, at 3.O0 p.m, as seen from the endorsement on Ex.pli/FIR, the FIR reached the Court at i1.55 p.m, on 24.01.20O9, as endo.rsed by the learned Magistrate, with a delay of nearly 28 hours. There is no explanation re5Jetrding the delay in the complaint reaching the Court. It is for the prosecution to explain convincingly, the reason for the delay in the FIR reaching the Court. The delay in the FIR reaching the Ccurt can be attributed to deliberation prior to lodging complaint. Though the FIR was sent with an rrnexplained delay of 28 hours, the name of the solitary eye-witness-p.W.2 is "'1frqq mentioned. The only logical conclusion that can be drawn is r. \ ,u, ttrat Pi\fu.2 was not present when the incident happened' ,.i-.,l,ry;;;&{}t***.r1:i,.r..:;} ::.....- ? lg. The prosecution failed to prove the case against the appellants beyond reasonable doubt'

20. In the result, the judgment of the trial Court in S'C'No'424 of 2O1O dated 15.09.2017 is set aside, and the appellants are acquitted. Since, both the appellants are in jail' they are directed to be released forthwith, if they are not required in any other case. 2r. Accordingly, Criminal Appeal is allowed' !i Sd/- C.V. MALLIKARJUNA VARMA J INT REGISTRAR //TRUE COPY// CTION OFFICER One Fair Copy to Hon'ble Sri Justice K. SURENDER (For His Lordships Kind Perusal) AND One Fair Copy to the Hon'ble Sri Justice E.V. Venu Gopal (For His Lordships Kind Perusal) To 1. The lll Additional Metropolitan Sessions Judge, Hyderabad ( with records)

2. The XVI Additional Chief Metropolitan Magistrate, Hyderabad. 3. The Station House Officer, Falaknuma Police Station, Hyderabad. 4. The Superintendent, Central Prison, Chenchalguda, Hyderabad. (By Special Messenger)

5. 11 LR Copies 6. The Under Secretary, Union of lndia Ministry of Law, Justice and Company Affairs, New Delhi

7. The Secretary, Advocates Association Library, High Court for the State of Telangana, High Court Buildings at Hyderibadl Hyderabad. (OUT)

8. Two CCS to Public Prosecutor, High Court for the State of Telangana at 9. One CC to SRl. Y. RATNA PRABHA Advocate [OPUCI r 10.One CC to SRl. C RUTHWIK REDDY Advocate IOPUCI 11.Two CD Copies A$,- KuVplp \ _- _ -<:->e.-z-" * !-*.-j+*a^:%.-^ ---* .1.,u 'a- HtGl-LjsouRT DATED:1810312025 ---=: -q, 'r, , -?r L.R. COPY TO BII MI\RKI]D Judqment q 7 Crl. Appeal .No.1174 of 2018 q c o E sr Are 1$. ?U \t\[H 2t6 ., t ALLOWING THE (]R.L,.APPEAL T# frfsl'{- I I i