Mohd. Hasan v. The State Of A.P., Rep. By Its P.P.,

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE MRS JUSTICE K. VIJAYA LAKSHMI CRIMINAL APPEAL No.231 of 2012 JUDGMENT: (Per the Hon'ble Sri Justice C.Praveen Kumar) This appeal is filed assailing the judgment dated 09.11.2011 passed by the learned Special Judge for Trial of Offences under SCs & STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, in S.C.No.241 of 2011, where-under the appellant/accused was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of one month.

2.

The brief facts, as disclosed in the evidence of the prosecution witnesses, are as under:

On the intervening night of 13/14.05.2010 at 11.30 hours, while P.W.2 was returning to his house after closing his backery and when he reached near Anand Talkies, noticed a mob and the police at the scene. On seeing the same, himself and one Aziz reached the spot and found two dead bodies. As per the evidence of P.W.1, who is the Sub-Inspector of Police, on that day at 5.00 hours, while he was on night duty, received a message from one Dasarath Raju, Assistant Sub-Inspector of Police, Begumpet Police Station, about two male dead bodies lying opposite to

Anand Talkies, S.P.Road. Immediately, he rushed to the spot and noticed two dead bodies in a pool of blood. On seeing the bodies, he got suspicion that somebody might have killed them with stone and immediately, informed the same to his superior officers.

3.

Further investigation was taken up by P.W.4, the Inspector of Police. The evidence of P.W.4 would show that on receipt of message through a cell phone that two male dead bodies were found at the road centre near Anand Theatre, he proceeded to the scene of offence where he received Ex.P1 report from P.W.1, who is the Assistant Sub-Inspector of Police. He made an endorsement for registration of the case and sent it through L.W.13 Police Constable, by name, G. Vijaya Reddy. Basing on the said endorsement, P.W.6, the Sub-Inspector of Police, Ramgopalpet Police Station, registered a case in Cr.No.128 of 2010 for the offence punishable under Section 302 IPC and issued FIR which is marked as Ex.P14. After receiving the FIR, P.W.4 proceeded to the scene of offence, got the scene photographed through P.W.7. Ex.P11 is the bunch of photographs.

Thereafter, he conducted a panchanama of the scene of offence, in the presence of mediators P.W.2 and one Aziz. He also recorded the statements of P.W.1, L.W.2 Dasarath Raju and L.W.3 S.K.Asif. The scene of offence panchanama and rough sketch were marked as Exs.P2 and P3. Thereafter, P.W.4 conducted inquest over the two dead bodies in the presence of P.W.2 and L.W.5-Aziz. Exs.

D1 and D2. During inquest, he seized blood stained clothes of the two deceased under Exs.P6 and P7.

4.

The evidence of P.Ws.8 and 9, who are the Investigating Officers, would show that on 13.5.2010, P.W.8 received a call from Ramgopalpet Police that a murder took place in Ramgopalpet limits and seeks a requisition to send a dog squad. Accordingly, P.W.8 took the dog to Ramgopalpet area where the dead bodies were lying, but no useful material was gathered. The evidence on record further discloses that on 13.05.2010 at 10.30 PM., when P.W.9 was on night duty, he received a phone call from P.W.1, to get an auto trolley to the scene of offence, to shift the dead bodies.

5.

After completion of inquest, P.W.4 sent the bodies for post mortem examination. P.W.3-the Assistant Professor in Forensic Department of Gandhi Medical College, Secunderabad, conducted post mortem over the dead bodies of two deceased and issued certificates under Exs.P9 and P.10. As per the said reports, the doctor opined that the cause of death was due to head injury. Thereafter, on 15.05.2010, P.W.4 along with Aziz and Subbaiah apprehended the accused at James Street Railway Station, while he was moving under suspicious circumstances. P.W.4 in his evidence deposed that in the presence of P.W.5, the accused made a confession about the commission of offence. Pursuant to it, M.O.4-RCC Boulder was seized under the seizure report-Ex.P12. After completion of investigation, P.W.4 filed the

charge sheet, which was taken on file as P.R.C.No.41 of 2010 on the file of XI Additional Chief metropolitan Magistrate, Secunderabad.

6.

On appearance of the accused, all the material, which was sought to be relied upon by the prosecution, was furnished to the accused. Since the offence allegedly committed by the accused is triable by the Court of Session, the matter was committed to the Court of Session, wherein it came to be numbered as S.C.No.241 of 2011.

7.

After issuing summons and on appearance of the accused, a charge under Section 302 IPC was framed, read over and explained to him, to which he denied and claimed to be tried. 8.

In support of its case, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P15 and M.Os.1 to 4. 9.

After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C, with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. No oral or documentary evidence was adduced on behalf of the accused.

10.

After considering the entire evidence on record, more particularly, the recovery of M.O.4, the trial Court found the accused guilty for the offence punishable under Section 302 IPC

and accordingly sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of one month. Challenging the same, the present appeal is filed through legal aid counsel. 11.

Heard the learned legal aid counsel for accused and learned Public Prosecutor and perused the record. 12.

As seen from the record, there are no eyewitnesses to the incident and the case rests on the circumstantial evidence. The circumstance, which is relied upon by the prosecution, is the recovery of M.O.4-RCC boulder pursuant to the confession made by the accused in the presence of P.W.5. As seen from the record, P.Ws.1 and 2 came to the scene of offence after receipt of the information that two male dead bodies were lying in front of Anand Theatre, S.P.Road, Secunderabad. After registration of the crime, P.W.1 sent a requisition to P.W.8 to send a dog squad to trace out the culprit. P.W.8 in his evidence deposed that he took the snuffer dog to Ramgopalpet area where murder took place. The dog smelt the body and from there took him to the Secunderabad bus stop area, where dog smelled some persons, who were sleeping and from there, dog came back to the scene of offence.

13.

From the evidence of P.W.8, it is clear that the snuffer dog failed to trace the whereabouts of the accused and it came back to the scene of offence from the Secunderabad bus stop. Then the only other circumstance, which is to be considered, is the

recovery of M.O.4. Before dealing with the same, we wish to point that the incident took place on the intervening night of 13/14.5.2010 and no eyewitness was examined to speak to the incident and no witness has come forward to lodge a report. But strangely, on the very next day i.e., on 15.5.2010, P.W.4, the Inspector of Police is said to have apprehended the accused, while he was moving under suspicious circumstances at James Railway Station. No explanation or material is furnished before the Court to show that as to how P.W.4 came to know the culpability of the accused in the commission of offence. It appears that the accused was arrested in spite of there being no material to connect him with the crime. Further P.W.4 stated that he arrested the accused on 15.05.

2010 and brought him to the police station where he recorded the confessional statement of accused in the presence of L.W.6-Md. Omer and L.W.7-Suresh Parekh. Thereafter, the accused led them to Hanuman Temple, S.P.Road, from where RCC slab with iron rod was seized. The said recovery, on the face of it, appears to be, illegal. Even if really the accused as an assailant hit the deceased with the concrete iron rod stone, he would not have carried the same from the scene of offence to Hanuman temple so as to conceal it. When the alleged slab was heavy and big in size, the normal human conduct would be to thrown the boulder at the scene of offence and then escape from there. Apart from it, P.W.5 is the person before whom the accused confessed about the commission of offence. In crossexamination, he admits that Ex.P12-seizure report of M.O.

not drafted in his presence, but the police called him and obtained his signature. He further states that no recovery was made in his presence. It would be relevant to extract the relevant portion which is as under:

"Ex.P12 was not drafted in my presence but only police called me and obtained my signature and no recovery was made". 14.

Having regard to the above circumstances, it is difficult to believe the recovery of M.O.1. As the circumstances relied upon by the prosecution do not form a chain of events, connecting the accused with the crime, the conviction and sentence imposed against the accused for the offence punishable under Section 302 IPC, is set aside and he is acquitted for the said offence. 15.

Accordingly, the Criminal Appeal is allowed, setting aside the conviction and sentence imposed against the appellant/accused in S.C.No.241 of 2011 on the file of the Special Judge for Trial of Offences Under SCs & STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, dated 09.11.2011 and the accused is acquitted of the charge levelled against him. Miscellaneous petitions, if any, pending in this appeal shall stand closed.

___________________________ JUSTICE C. PRAVEEN KUMAR ____________________________________ MRS JUSTICE K. VIJAYA LAKSHMI 9th November, 2017 sj