Telangana High Court
Md. Isaq, Rr.Dt And Anr., vs State Of Telangana, Rep Pp., on 31 December, 2024
1
**HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.113 OF 2017
Between:
Md.Isaq
Riyaz Khan ... Appellants/A1 & A5
And
The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.120 OF 2017
Between:
Md.Khaja Pasha @ S.K.Khaja @ Khaju ... Appellant/A4
And
The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.214 OF 2017
Between:
Md.Ghouse ... Appellant/A2
And
The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.433 OF 2017
Between:
Mohd.Bilal ... Appellant
And
The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
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DATE OF JUDGMENT PRONOUNCED: 31.12.2025
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
1 Whether Reporters of Local newspapers
may be allowed to see the Judgments? Yes/No
2 Whether the copies of judgment may be
marked to Law Reporters/Journals Yes/No
3 Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? Yes/No
___________________
K.SURENDER, J
___________________________
ANIL KUMAR JUKANTI, J
3
* THE HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
% Dated 31.12.2024
Criminal Appeal No.113 OF 2017
Between:
#Md.Isaq
Riyaz Khan ... Appellants/A1 & A5
And
$The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.120 OF 2017
Between:
#Md.Khaja Pasha @ S.K.Khaja @ Khaju ... Appellant/A4
And
$The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.214 OF 2017
Between:
#Md.Ghouse ... Appellant/A2
And
$ The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
Criminal Appeal No.433 OF 2017
Between:
#Mohd.Bilal ... Appellant
And
$The State of Telangana,
Rep. by its Public Prosecutor. ... Respondent/complainant
4
! Counsel for the Appellants: Sri T.Pradyumna Kumar Reddy
Smt.C.Vasundhara Reddy
Sri Md.Muzaffer Ullah Khan
Sri S.M.Rafee
^ Counsel for the Respondents: Mr.M.Vivekananda Reddy,
Assistant Public Prosecutor.
>HEAD NOTE:
? Cases referred
1. (2003) 3 Supreme Court Cases 355
2. 1994 Supp (1) Supreme Court Cases 590
3. (2014) 5 Supreme Court Cases 108
4. 2017 (1) ALD (Crl.) 93 (AP)
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HON'BLE SRI JUSTICE K.SURENDER
AND
HON'BLE SRI JUSTICE ANIL KUMAR JUKANTI
CRIMINAL APPEAL Nos.113, 120, 214 and 433 of 2017
COMMON JUDGMENT:
(per Hon’ble Sri Justice K.Surender)
1. Criminal Appeal No.113 of 2017 is filed by A1 and A5,
Criminal Appeal No.120 of 2017 is filed by A4, Criminal Appeal
No.214 of 2017 is filed by A2 and Criminal Appeal No.433 of 2017
is filed by A3. Since all the appellants are challenging the judgment
of conviction in S.C.No.1 of 2012, dated 31.12.2016, they are being
disposed of by way of this common judgment.
2. The appellants/A1 to A5 were convicted and sentenced to
undergo rigorous imprisonment for life under Section 302 r/w 149
IPC and further convicted and sentenced to undergo rigorous
imprisonment for three years each under Section 148 IPC. A6 to A8
and A10 to A17 were acquitted. A9 died during pendency of trial.
3. Briefly, the case of the prosecution is that the deceased
Narsing Rao was the son of the defacto-complainant of late L.W.1
Bakkoni Kumara Swamy and brother of P.W.1 Bakkoni
Balakrishna. On the night of 19.12.2006 at about 21.00 hours,
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when P.W.4, Nallolla Sudheer and Prabhaker were quarrelling with
P.W.5 Benoni alias Bhone and P.W.6 Parnandi Arpith near Railway
Station, Vikarabad, P.W.6 informed the same to A1, who was at
Hotel along with A11. On that A1 pushed P.W.4 Nallolla Sudheer,
due to which P.W.4 fell down on the Pulsar Motor Cycle of A11 and
the indicators of the said motor cycle got damaged. On 20.12.2006
at about 21.30 hours, A1, A2, A5 and A11 and others went to the
house of P.W.4 and asked about P.W.4 and demanded to pay the
amount for damages to the motor cycle of A11.
4. On 21.12.2006 in the absence of A1, the deceased and P.W.4
went to the house of A1 and asked about him. A1 came to know
that the deceased and P.W.4 came to his house. A1 along with A11
went to Railway Guest House where P.W.4 and others were present.
On seeing P.W.4, A1 and A11 beat him with hands and demanded
to pay the amount for the damage of the motor cycle and asked as
to why he came to the house of A1. Meantime, deceased who was
coming from Saw Mill came there on being called by P.W.4.
Deceased threatened A1 and A11.
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5. About six months prior to incident, when the cousin of A5 was
coming from Hyderabad in train, the deceased and others
threatened him. On which, A1, A2, A3, A4 and A5 went to the Gym
and asked about threatening the cousin of A5 in train, the deceased
intervened and threatened to kill A1 to A5.
6. On 21.12.2006, A1 to A17 hatched a plan to kill the deceased
and formed themselves into an unlawful assembly armed with
sword, knives, iron rods and sticks. They gathered at Railway Guest
House of Vikarabad in a dark place. A3 was sent to his hotel, which
is situated in front of Ambedkar Statue and A3 was watching
movements of the deceased and his friends. Before gathering, A1 to
A6 asked P.W.9 Chowhan Manoj to call the deceased and abused
him. When P.W.9 informed the deceased that A1 was abusing him,
the deceased along with P.W.2, P.W.3, P.W.4 and P.W.8 who were
attending marriage at Indira Nagar, went to Ambedkar Statue near
Railway Station at about 22.30 hours on the same day i.e.,
21.12.2006. When they were talking to P.W.9, A3 informed the
appellants on phone about deceased and his friends standing at
Ambedkar Statue, near Railway Station, Vikarabad. Immediately,
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six accused persons went on Pulsar bike and Scooter and
remaining accused went running towards Ambedkar Statute. A5
along with other accused went there with knives, sword, rods and
sticks and picked up quarrel with the deceased and P.Ws.2 to 4, 8
and 9. Meantime, one Jaweed (not examined) went there and
separated them. When deceased and others were proceeding
towards Shailaja Theatre to the house of deceased, A1 to A17 and
others attacked deceased from back side. A1 to A3 attacked the
deceased with knives, A5 stabbed with sword, A4, A6 beat the
deceased with iron rods, A10, A11, A12 and A13 beat the deceased
with sticks, A9 and A14 caught hold of the deceased and A15 to
A17 beat the deceased with hands. Due to which, deceased
sustained severe bleeding injuries to his head, forehead, waist,
chest and on his back etc., and the same was witnessed by P.Ws.2
to 4and PWs.8,9. The deceased was shifted to Government Hospital,
Vikarabad by P.W.8 and L.W.12. Thereafter, they shifted the
deceased to Osmania General Hospital, Hyderabad for treatment in
the TATA Sumo of P.W.11. The deceased was declared as brought
dead by Doctors at Osmania General Hospital.
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7. The father of the deceased L.W.1 lodged Ex.P1 complaint with
P.W.16-Sub-Inspector of Police, Vikarabad Police Station on
22.12.2006 at about 6.00 hours, basing on which P.W.16 registered
a case in Cr.No.344/2006 under Sections 147, 148, 302 r/w 149
IPC and issued Ex.P28 express FIR.
8. On the basis of the complaint filed, P.W.16 visited the scene of
offence and conducted scene of offence panchanama, rough sketch
was drawn in the presence of mediators. Two sticks, one pulsar
motor bike, scooter found at the scene, was video graphed,
photographed and seized. P.W.6, then went to the hospital and
conducted inquest over the dead body. The body was sent for
postmortem examination. The postmortem doctor found 15 grievous
stab injuries. The cause of death was multiple stab injuries to the
chest. Having concluded investigation, charge sheet was filed
against 17 accused. All the 17 accused were tried by the learned
Sessions Judge. However, learned Sessions Judge found that A1 to
A5 were only complicit of murdering deceased, since specific overt
acts were attributed to them by P.Ws.2 to 4, 8 and 9. The overt acts
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attributed to other accused during investigation were not stated by
the witnesses. A6 to A8 and A10 to A17 were acquitted.
9. Heard Sri T.Pradyumnakumar Reddy, learned Senior Counsel
for A1 and A5, Smt C.Vasundhara Reddy, learned counsel for A4,
Sri Mohd.Muzaffer Ullah Khan, learned counsel for A2 and Sri
S.M.Rafee, learned counsel for A3.
10. Sri T.Pradyumnakumar Reddy, learned Senior Counsel
submits that the complaint was filed on 22.12.2006 at 6.00 a.m,
though the incident happened at 10.00 p.m, the previous day.
There is a delay of eight hours in lodging the complaint. The
complaint is hit by Section 162 Cr.P.C since the author of the
complaint died. The contents of the complaint cannot be looked
into. Learned counsel further argued that the complaint reached
the Magistrate at 11.00 a.m on 22.12.2006 with a delay of five
hours according to the investigating officer/P.W.16, who admitted
that Judicial First Class Magistrate Court, Vikarabad was at a
distance of 10 to 15 minutes from the police station. In the said
circumstances, for the reason of there being no explanation for the
delay in sending the complaint to the Magistrate, it is apparent that
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the complaint was fabricated subsequently implicating several
accused.
11. Learned counsel relied on the judgment of Hon’ble Supreme
Court in the case of Rajeevan and another v. State of Kerala 1. In
the said case, the Hon’ble Supreme Court while dealing with delay
in lodging the FIR and FIR reaching the Court, found that the delay
throws any amount of doubt regarding prosecution case being
correct. The Hon’ble Supreme Court observed as under:
“12. Another doubtful factor is the delayed lodging of FIR. The learned
counsel for the appellants highlights this factor. Here it is worthwhile to
refer Thulia Kali v. State of T.N. [(1972) 3 SCC 393 : 1972 SCC (Cri)
543] wherein the delayed filing of FIR and its consequences are
discussed. At para 12 this Court says: (SCC p. 397)
“First information report in a criminal case is an extremely vital and
valuable 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 of
commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the actual
culprits and the part played by them as well as the names of
eyewitnesses present at the scene of occurrence. Delay in lodging the
first information report quite often results in embellishment which is a
creature of afterthought. On account of delay, the report not only gets
bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated 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.”
13. This is the position consistently followed by this Court in Maharaj
Singh v. State of U.P. [(1994) 5 SCC 188 : 1994 SCC (Cri) 1391] and
1
(2003) 3 Supreme Court Cases 355
12
recently in Thanedar Singh v. State of M.P. [(2002) 1 SCC 487 : 2002
SCC (Cri) 153]
15. This Court in Marudanal Augusti v. State of Kerala [(1980) 4 SCC
425 : 1980 SCC (Cri) 985] 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 [1994 Supp (2) SCC 372 : 1994 SCC
(Cri) 1551] it was reminded by this Court that: (SCC p. 382, para 24)
“[T]he forwarding of the occurrence report is indispensable and
absolute and it has to be forwarded with earliest dispatch which intention
is implicit with the use of the word ‘forthwith’ occurring in Section 157
CrPC, which means promptly and without any undue delay. The purpose
and object is very obvious which is spelt out from the combined reading of
Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the
possibility of improvement in the prosecution story and 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.””
12. In State of Andhra Pradesh v. Punati Ramulu and others 2,
the Hon’ble Supreme Court while dealing with an appeal against
acquittal, held that delay in lodging the FIR was fatal and the case
of the prosecution was disbelieved.
13. In State of Gujarat v. Kishanbhai and others 3, the Hon’ble
Supreme Court found that on the basis of circumstances and there
being a delay in complaining to the police, prosecution has failed to
prove the case against the accused.
2
1994 Supp (1) Supreme Court Cases 590
3
(2014) 5 Supreme Court Cases 108
13
14. In Bheemgonda and others v. State of Andhra Pradesh 4, the
Hon’ble Division Bench of this Court while dealing with a case
wherein there was 3 ½ hours delay after the incident, found favour
with the version of the accused that the accused were falsely
implicated after due deliberations.
15. On the other hand, learned Additional Public Prosecutor would
submit that P.Ws.4 and 9 are the eye witnesses to the incident and
P.W.16/Investigating Officer has taken immediate action against
appellants on the basis of the complaint filed. As seen from the
evidence of P.Ws.4 and 9, it was the appellants/A1 to A5 who had
brutally attacked the deceased and caused his death. Though, A6 to
A17 were prosecuted, only for the reason of their acquittal, no
benefit can be extended to the present appellants against whom
specific overt acts were attributed by the eye witnesses P.Ws.4 and
9.
16. The complaint Ex.P1 was given by the father of P.W.1. He died
during pendency of trial. P.W.1, who is the brother of the deceased
identified Ex.P1 and marked, though marking was objected by the
4
2017 (1) ALD (Crl.) 93 (AP)
14
defence. Learned Sessions Judge marked Ex.P1, subject to
objection, on the ground that P.W.1 was aware of the fact that the
father had lodged complaint and he had accompanied his father
while lodging complaint and also identified the signature of his
father.
17. Though, Ex.P1 was marked, however, the contents of Ex.P1
cannot be read in evidence since the author of Ex.P1 was not
examined. Ex.P1 is a statement made during the course of
investigation and hit by Section 162 Cr.P.C. To the extent of
corroboration of lodging complaint at the specified time by the
father of P.W.1, Ex.P1 can be relied on.
18. Both P.W.1 and his father, who lodged complaint Ex.P1 are
not eye witnesses to the incident. According to the evidence of
P.W.1, he did not state in his chief examination as to who informed
about the incident. However, the entire narration of P.W.1 was
recorded by the learned Sessions Judge. When P.W.1 was not an
eye witness to the incident and it is not stated as to the source of
his knowledge about the incident, learned Sessions Judge should
not have permitted recording of such evidence which is hearsay in
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nature. Learned Sessions Judge should have restrained from
recording inadmissible evidence.
19. However, in the cross-examination, P.W.1 stated that he
received phone call from Naveen, who was examined as P.W.8 and
he was declared as hostile to the prosecution case. P.W.2 identified
A1, A3 to A5 and A11. However, he did not speak about the attack
by any of the appellants and was declared hostile to the prosecution
case. P.W.2 stated that there was a quarrel and thereafter, they
disbursed from the said place. P.W.3 was declared hostile and did
not state anything about any of the appellants attacking the
deceased.
20. P.W.4 is an eye witness to the incident. He narrated the
sequence of events as on the date of incident. He stated that A1 to
A6 and their supporters started attacking the deceased, himself,
P.W.2 and others. A1 to A6 inflicted injuries on the deceased and he
fell down. Immediately, P.W.4 informed P.W.1 on phone about the
incident.
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21. Learned Sessions Judge observed during examination of P.W.4
in the Court that the statements recorded by the police under
Section 161 Cr.P.C were not provided to the accused and deferred
cross-examination of P.W.4. However, on the date of cross-
examination when P.W.4 was recalled, the police produced copies of
statements but they were not legible and the learned Sessions
Judge asked the Public Prosecutor about originals. Further, the
learned Sessions Judge observed that the originals of the
statements were not filed in the Court. Not providing copies of
Section 161 Cr.P.C statements of witnesses which are legible and
can be read, prejudice would be caused to the accused.
22. However, cross-examination was taken up by the defence
counsel. In the cross-examination, P.W.4 admitted that Vikarabad
Police Station was at half kilometer distance from Ambedkar Statue
where the incident had taken place. He further admitted that police
examined him at 2.00 or 2.30 a.m.
23. P.W.9 is another eye witness to the incident. He narrated
sequence of events on the date of incident and stated that A2, A3,
A4 and 50 others attacked the deceased, P.Ws, 2, 4, 9 and others
17
with talwars and iron rods. P.W.9 fled from the scene. P.W.9
admitted in his cross-examination that the Vikarabad Police Station
was very near and he did not go to the police station immediately
after the incident and did not give any complaint to the police about
the incident. P.W.9 did not deny that his statement was recorded by
the JFCM, three months after the incident.
24. P.W.16 is the Investigating Officer, who received the complaint
Ex.P1. He registered the case against A1 to A5 and others. He
admitted that if a person walks from the police station to the Court
of JFCM, it would take 20 minutes to reach the JFCM Court. In his
cross-examination, P.W.16 stated that the patrolling staff on the
night might have stopped the TATA Sumo which was driven by
P.W.11, while taking the deceased to the Osmania General Hospital.
P.W.11 was declared hostile to the prosecution case. However,
P.W.11 stated that the dead body of the deceased was taken in his
TATA Sumo. Before going to the hospital, one Sub-Inspector of
Police asked him to go to the Hyderabad urgently stating that one
person was serious. Further, S.I insisted that one had to
accompany him and accordingly he went along with the S.I to the
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Vikarabad Government Hospital. There he saw the deceased and
blood was oozing from his body. From the Vikarabad Hospital,
deceased was shifted to Osmania General Hospital where he was
declared as brought dead. Then, P.W.11 returned to Vikarabad.
25. P.W.17 is the Investigating Officer, who has taken over the
investigation from P.W.16 after registration of crime. P.W.17 stated
that he went to the scene of offence and conducted scene of offence
panchanama. Thereafter, he went to the hospital, Vikarabad and
recorded statements of P.W.1, 4, P.W.9 and others. Then inquest
was conducted. The dead body was then shifted to the mortuary
after autopsy was conducted.
26. The main witnesses are P.Ws.4 and 9, who are projected as
eye witnesses to the incident. Though, both P.Ws.4 and 9 claimed
that they were attacked by the appellants/A1 to A5 and others,
however, neither P.W.4 nor P.W.9 received any injuries. Both
P.Ws.4 and 9 admitted that the police station was at a distance of ½
kilometer. It is not known as to why no complaint was filed
immediately after the incident, which has taken place around 10.00
a.m. P.W.4 admits that he was examined by a police officer at 2.00
19
a.m or 2.30 a.m. The said fact is not stated by either P.Ws.16 or
17/Investigating Officers in the case. According to P.W.16, for the
first time, they came to know about murder at 6.00 a.m. If the
incident happened at half kilometer distance from police station, it
is highly improbable that the police would not know about the
incident. P.W.4 spoke about the presence of A1 to A6 when the
attack had taken place. He did not speak about A7 to A17.
However, P.W.9 speaks about A1 to A6 along with others totaling 50
persons, who attacked the deceased, P.W.4, P.W.9 on the date of
the incident. Contradictory narrations are given by P.Ws.4 and 9
regarding number of persons who attacked the deceased. No reason
was given either by P.Ws.1,4 or P.W.9 as to why complaint was not
lodged immediately after coming to know about the incident in the
night. None of the witnesses explained about the delay in lodging
the complaint till 6.00 a.m. The complaint reached the Magistrate
at 11.00 a.m, though P.W.16 admitted that FIR was dispatched
immediately. Further in the cross-examination of P.W.16, he stated
that it would take 10 to 15 minutes to reach the Court and 20
minutes by walk. When the said circumstances are collectively
looked into, it creates any amount of doubt regarding versions of
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P.Ws.4 and 9 being eye witnesses to the incident. As already
discussed, though several persons were armed with sticks,
crowbars etc., and attacked P.W.4, P.W.9, deceased and others,
P.Ws.4 and 9 did not receive any injuries nor anyone else other
than the deceased. No reason is given as to why none of them went
to the police station, which was at a distance of ½ kilometer where
the incident has taken place.
27. The learned Sessions Judge also failed to consider the fact
that P.W.11 spoke about a Sub-Inspector of Police asking him to
take the deceased from Vikarabad Hospital to Osmania Hospital in
Hyderabad. P.W.16 stated in his cross-examination that the police
patrolling might have asked P.W.11 to shift the body to Osmania
Hospital. It is evident that the police had knowledge about the
incident on the night itself. However, for reasons best known, the
investigating officer has come up with a different story.
28. The Hon’ble Supreme Court in case of Rajeevan and another
held that prosecution not satisfactorily explaining the delay in
lodging the complaint and delay in dispatching of the FIR to the
Magistrate casts any amount of doubt regarding the version given
21
by the prosecution witnesses. In the present case, the incident has
taken place at 10.00 p.m, within half kilometer from the police
station and the complaint was filed only at 6.00 a.m on the next
day, with a delay of eight hours. Though JFCM Court was at a
distance of 10 to 15 minutes, FIR reached the Magistrate Court only
at 11.00 a.m. From the time of the incident till the complaint
reached the Court, it was nearly 13 hours. In the present facts, it
was for the prosecution to explain convincingly the reason for
lodging FIR with a delay and the FIR reaching the Court also with a
delay. Further, no reasons are given as to why the police had not
taken any action in registering a FIR when P.W.4 was examined at 2
or 2.30 a.m when the patrolling staff had asked P.W.11 to take the
deceased to Osmania Hospital.
29. P.W.9 stated that there were around 50 persons who attacked
the deceased and others. P.W.4 confined his narrative to six
accused i.e., A1 to A6. The police charge sheeted 17 persons and
the Court had convicted five persons. Considering all the factors,
there arises any amount of doubt regarding the prosecution version
and it is apparent that the earliest version was suppressed. The
22
lodging of complaint, going to the police, naming the accused
appears to have been made after due deliberations.
30. For the reasons discussed above, benefit of doubt is extended
to the appellants.
31. In the result, the judgment of trial Court in S.C.No.1 of 2012,
dated 31.12.2016 is set aside and the appellants are acquitted.
Since all the appellants are on bail, their bail bonds shall stand
discharged.
32. Accordingly, all Criminal Appeals are allowed.
__________________
K.SURENDER, J
__________________________________
ANIL KUMAR JUKANTI, J
Date : 31.12.2024
kvs
