Mohd Zaheer Ahmed vs The State of Andhra Pradesh

L. Narasimha Reddy, J.—A. 1 and A.2 in S.C. No. 310 of 2009 on the file of the II Additional Metropolitan Sessions Judge, Hyderabad, were tried for the offence of causing the death of Sri C. Shiva Krishna Reddy, in the intervening night of 10/11.07.2008 at Sultan-Ka-Dayara, a Muslim Graveyard, at Hyderabad. A complaint, Ex. P. 1, in this behalf, was submitted by P.W. 1, Mohd. Baber, a Mutavalli of the Graveyard, before the Madannapet Police Station. He stated that he came to his house from the graveyard at about midnight, and on the early hours in the morning, when he was walking around the graveyard to water the plants, he found the dead body of a person. It was mentioned that the blood was oozing from the neck portion and mouth, and bloodstained stone was found near the dead body. A motorcycle is also said to have been seen by him. On receiving the complaint, the Inspector of Police - P.W. 9 proceeded to the spot, got the dead body and surroundings photographed, conducted scene of offence panchanama, caused inquest, and sent the dead body for post-mortem examination. The further investigation undertaken by him is said to have revealed that there is involvement of A. 1 and accordingly, he was arrested. On the information given by A. 1, his friend A.2 is said to have apprehended and that mobile phones belonging to those persons were also seized. A charge sheet was filed alleging offence against the accused. On both the accused pleading not guilty, trial was conducted, wherein P.Ws. 1 to 10 were examined and Exs. P. 1 to 14 were filed. M.Os. 1 to 10 were also taken on record. The contradictory statement of P.W. 4 is marked as Ex. D. 1.

Through its judgment, dated 12.07.2010, the trial Court found the accused guilty of the offence punishable u/s 302 I.P.C. and imposed the sentence of Rigorous Imprisonment for 10 years and fine of Rs. 500/-, in default, to undergo simple imprisonment for one month. While A. 1 filed Crl. A. No. 1021 of 2010, A. 2 filed Crl. A. No. 905 of 2010.

Sri G. Ashok Kumar Reddy, learned counsel for A. 1, and Sri K. Suresh Reddy, learned counsel for A. 2, submit that there is neither direct evidence, nor circumstantial evidence to connect the death of the deceased, to the accused. They submit that P.W. 1 is a stranger to the deceased and the accused, and he did not name anyone in Ex. P. 1 and the evidence of P.W. 2, the mother of the deceased, is vague and general. They further submit that though P.W. 9, the Investigating Officer, made an effort to connect the accused to the crime by referring to the numbers of cell phones or the data obtained from the Telephone Company, nothing useful can be culled out from it. Learned counsel submit that the trial Court committed a patent error in not taking into account, the actual purport of Section 302 I.P.C.

Learned Additional Public Prosecutor, on the other hand, submits that notwithstanding the fact that there is no direct evidence, the prosecution was able to place the circumstantial evidence in the form of conversation undertaken between A. 1 and A. 2 through their cell phones, to liquidate the deceased. She contends that P.W. 2, the mother of the deceased, clearly stated that A. 1 used to come to her house frequently and she has last seen the deceased in the company of A. 1.

The body of the deceased was first noticed by P.W. 1 and without any loss of time, he submitted a complaint - Ex. P. 1. A perusal of the same discloses that he did not name anyone, as responsible for the death of the deceased. The name and other particulars of the deceased were furnished on the basis of the driving licence that was said to have been found in the motorcycle, which was lying by the side.

The break through in the case is said to have occurred, with the arrest of A. 1, by P.W. 9, and thereafter, the arrest of A.2, on the basis of the information furnished by A. 1. P.W. 9 was unable to explain as to how the needle of suspicion pointed out towards the accused. P.W. 2, the mother of the deceased, did not file any complaint. Though she stated that A. 1 used to visit their house and meet the deceased, no particulars thereof were given, nor the purpose of visit was indicated. The absence of any specific complaint from her, would disclose that her naming A. 1 is only at the instance of the police. Though P.Ws. 4 and 5 were examined as the persons, who have last seen the deceased, in the company of the accused, their evidence, even in the chief-examination, is found to be inconsistent.

The evidence of other witnesses is absolutely of no assistance. It is only P.W. 9, who made an endeavor to connect the accused to the offence. Reference is made to two mobile phones; the one, which is recovered from A. 1 and the other from A. 2, though it belongs to his brother. It is, no doubt, true that summary of call data, in relation to Phone No. 9703944106, for a particular period was filed as Ex. P. 13. However, there is nothing in that to suggest that either of the accused have conversation with the deceased. Added to that, though P.W. 1 did not make any mention about there being a cell phone on the body of the deceased, he made reference to that in his examination-in-chief. Curiously enough, neither the number of that cell phone is furnished, nor P.W. 9 made an effort to analyze the call data in the phone of the deceased. P.W. 2 stated that she made an attempt to call her son, when he did not return by midnight, but the cell phone was found to be switched off. The call data pertaining to the accused is of no use, unless any conversation that has any bearing upon the attack on the deceased is traced out from it.

From the above, it is clear that there is no reliable evidence to establish the involvement of the accused, in the death of the deceased. Added to that, the prosecution did not even spell out as to what could have been the motive for the accused to kill the deceased. Even P.W. 2, the mother of the deceased, did not indicate any such motive.

The trial Court convicted the accused and sentenced them through "draft judgment". Another astonishing aspect is that though the conviction was in relation to an offence punishable u/s 302 read with 34 I.P.C., punishment of rigorous imprisonment for 10 years was imposed. It only shows the callousness and lack of carefulness on the part of the trial Court.

In the result, the Criminal Appeals are allowed. The conviction and sentence ordered in S.C. No. 310 of 2009 on the file of the II Additional Metropolitan Sessions Judge, Hyderabad, dated 12.07.2010, against the appellants-accused, are set aside. The appellants-accused shall be set at liberty forthwith, unless their detention is needed in any other criminal case. The fine amount, if any, paid by the appellants-accused shall be refunded to them. The miscellaneous petition filed in this appeal shall also stand disposed of.