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ANDHRA PRADESH HIGH COURT
K. Suresh Reddy and B.V.L.N. Chakravarthi, JJ.
Shaik Khasim Basha and Anr. – Appellants
versus
State of Andhra Pradesh, Rep. by its Public Prosecutor – Respondent
Crl.A.No.386 of 2016 and IA No.1 of 2024, IA No.1 of 2018
Decided on 7.3.2024
Counsel for the Parties:
For the Appellants:Sri D. Purnachandra Reddy, Advocate
For the Respondent: Sri S. Dushyanth Reddy, Addl. Public Prosecutor
IMPORTANT POINTS
(1) Murder – Merely because seizure witness turned hostile in other case, it is not a ground to reject evidence of Investigation Officer, when it is corroborated by evidence of other witnesses and convincing, on material aspects.
(2) Admissibility of evidence by way of electronic record – Certificate required under Section 65-B(4) of Evidence Act, 1872 is a condition precedent.
Headnote:
(A) Indian Penal Code, 1860 – Sections 302, 397 and 201 r/w. Section 34 – Murder, dacoity and disappearance of evidence – Life sentence – After committing murder for gain, dead body of deceased was burned to ashes, to erase evidence – Prosecution successfully established that Accused were found in possession of car of deceased, soon after his missing – Accused did not offer any explanation except a formal denial – Evidence of all witnesses would establish prosecution case all material happenings in the case from day one – Merely because seizure witness turned hostile in other case, it is not a ground to reject evidence of Investigation Officer, when it is corroborated by evidence of other witnesses and convincing, on material aspects – Inference can be safely drawn that not only accused were in possession of articles belonging to deceased but also committed murder of deceased – Appeal dismissed. (Paras 25, 32, 38, 45 and 46)
(B) Indian Evidence Act, 1872 – Section 65-B(4) – Admissibility of evidence by way of electronic record – Certificate required under Section 65-B(4) is a condition precedent – Oral evidence in place of such certificate cannot possibly suffice as Section 65B(4) is a mandatory requirement of the law – Secondary evidence is admissible only if lead in the manner stated and not otherwise – To hold otherwise would render Section 65-B(4) otiose – If Investigation Officers are sensitized on importance of legal parameters to be complied with as a condition precedent for admission and proving of electronic records produced before Court, it may strengthen Criminal Justice System.(Paras 41 and 42)
Result: Criminal Appeal dismissed.
JUDGMENT
B.V.L.N. Chakravarthi, J.—Heard Sri D.Purnachandra Reddy, learned counsel for the appellants/accused No.1 and 2, and Sri S. Dushyanth Reddy, learned Addl.Public Prosecutor for respondent/State.
2. The appeal is filed by the accused No.1 and 2 in Sessions Case No.323 of 2014 on the file of IV Additional District and Sessions Judge, Kurnool (hereinafter referred to as ‘trial Court’). The accused No.1 and 2 were tried and convicted by the trial Court for the offence under sections 302, 397 and 201 r/w.34 of Indian Penal Code, 1860 (for brevity ‘I.P.C.’), and sentenced to suffer 1) rigorous imprisonment for life, and also to pay fine of Rs.1,000/- (Rupees One Thousand only) each, in default, to suffer simple imprisonment for a period of two months each, for the offence U/s.302 I.P.C., 2) rigorous imprisonment for a period of seven years, and to pay a fine of Rs.500/- (Rupees Five Hundred only) each, in default, to suffer simple imprisonment for a period of one month each, for the offence U/s.397 I.P.C., and 3) rigorous imprisonment for a period of five years, and also to pay a fine of Rs.500/- (Rupees Five Hundred only) each, in default, to suffer simple imprisonment for a period of one month each, for the offence U/s.201 r/w.34 I.P.C.
3. The substance of the charge is that the accused No.1 and 2 on 12.01.2013 at about 10.57 PM committed murder of Sri M.V.Prabhu (hereinafter referred to as ‘deceased’), and robbed a Car, Samsung cell phone, Spice cell phone, wallet containing Rs.1,400/-, six ATM cards and a Lenovo Lap Top from the deceased, and caused disappearance of the evidence by setting fire to the body of the deceased.
4. The case of the prosecution in a nutshell is that:—
(i) The deceased is brother of Sri M.V.Guru Prasad (P.W-1); Smt. M. Sumathi Vijayan (P.W-2) is the mother of the deceased; the deceased was working as I.T. Director in a Software Company at Bangalore; the deceased owneda car bearing No.KA 51 MC 6862; the deceased went to Hyderabad in his car on 11.01.2013 to attend an official meeting; On 12.01.2013 evening he spoke to his mother over phone and informed her that he is returning to Bangalore; 14.01.2013 P.W-1 intimated P.W-2 that the deceased did not attend the office at Bangalore, and he was not taking call made to the mobile phone; Immediately he started searching for the deceased but in vain; He made enquiry at various tollgates located between Hyderabad and Bangalore; He was informed at Panchalingala tollgate that the car of the deceased crossed the tollgate on 12.01.2013 at 10.57 p.m.; P.W-1 went to next tollgate at Veldurthi; he was informed that the car of the deceased did not pass Veldurthi tollgate on that day; Immediately, P.W-1 went to Taluk Police Station, Kurnool and presented Ex.P-1 report.
(ii) Head Constable of Taluk Police Station, Kurnool (P.W-15), registered a case in Cr.No.38/2013 for man missing under Ex.P-6 FIR, and submitted copies to all the concerned;
(iii) Inspector of Police, Taluk Police Station, Kurnool (P.W-16), conducted investigation; He examined P.W-1, K. Abdul Khaleed (P.W-3), who is doing hotel business near tollgate, P.W-4 tollgate contractor of Kurnool Tollgate, and collected Ex.P-2 data entry slip; On 09.02.2013 on receipt of information about missing car, visited ‘Y’ junction of Ulchala village road, along with P.W-10 (R. Subhakar) and another mediator; He noticed a Black colour Chevrolet Beat Car bearing No.AP 21 AK 1202 coming from Ulchala side; On suspicion stopped the car,noticed A-1 in the driving seat, A-2 in the left side of front seat; A-1 tried to run away; Inspector of Police verified the engine number and chassis number of the car; they matched with the car of the deceased; Then Inspector of Police arrested A-1 and A-2, as they did not give proper information about possession of car belonging the car and change of number.
(iv) On interrogation, accused No.1 and 2 revealed about the offence; Inspector of Police seized the car (M.O-9), and recor
