HON'BLE SRI JUSTICE G.CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between :-
Criminal Appeal No.279 OF 2010 18th July, 2014
Chandupatla Santosh Reddy And others .. Appellants And The State of A.P., Rep.by Public Prosecutor, High Court of A.P., Hyderabad. .. Respondents HON'BLE SRI JUSTICE G.CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL
Criminal Appeal No.279 OF 2010
JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal)
The appellants were arraigned as A.1 to A.5 in S.C.No.315 OF 2009 on the file of the III-Additional Sessions Judge (FTC), Asifabad. They were charged with the offences punishable under Sections 302 AND 120-B of I.P.C. Through its Judgment, dated 08-02-2010, the trial Court found the accused guilty and sentenced them to suffer imprisonment for life and a fine of Rs.3,000/- each, Hence, the appeal by the accused.
2. The brief facts of the prosecution case are that on 16.12.2007 at about 9.00 hours, the de facto complainant – Dhamuka Tara (PW.1) lodged complaint – Ex.P.1, stating that on 15.12.2007 at about 10.00 p.m., while her brother – Cheemala Sudhakar (for short the deceased) was returning home from Ramakrishnapur, and on the way near Dargah situated opposite to the Church, three persons stopped his auto trolley, dragged him out, took him near to Dargah and stabbed him with knives on stomach, chest, head and hands, and thereafter left the place presuming that he died. After some time, her brother got up and went up to the house of Masu Srinu (PW.4), who informed her about the incident. Immediately, they shifted the injured to Government Hospitals at Mancherial, Karimnagar, Warangal and then to Yashoda Hospital at Hyderabad. She further complained that due to previous enmity Jilakara Praveen (A.5), Lingaiah (A.4) and his relatives might have attacked the injured with an intention to kill him.
3. On receipt of complaint (Ex.P.1), the Sub-Inspector of Police, Ramakrishnapur registered as Crime No.175 of 2007 against the accused for the offence punishable under Sec.307, read with Sec.34 I.P.C. During the pendency of investigation, on 25.12.2007, the injured while undergoing treatment succumbed to injuries and therefore the section of law was altered to Sec.302 I.P.C. The Investigating Officer recorded the statements of witnesses, conducted scene of offence and inquest panchanamas in the presence of mediators, seized the material objects and arrested the accused, who confessed the commission of the offence. After completing the investigation, the Inspector of Police, Mandamarri filed the charge-sheet on the file of the Judicial First Class Magistrate, Mancherial, where it was registered as P.R.C.No.3 of 2009. After complying with the mandatory requirements of Code of Criminal Procedure, the case was committed to the Court of Sessions at Adilabad, where it was registered as S.C.No.315 of 2009 and was made over to the III- Additional Sessions Judge (FTC), Asifabad.
4. Charges under Sections 302 and 120-B of I.P.C. were framed and the accused pleaded not guilty. The prosecution examined PWs.1 to 31 and marked Exs.P.1 to P.59 and M.Os.1 to 7.
5. The accused examined under Section 313 Cr.P.C., where they denied the incriminating evidence on record. No defence is produced on their behalf but marked Exs.D.1 to D.6.
6. By the Judgment under appeal, the learned Sessions has convicted and sentenced the accused as stated supra.
7. Learned Counsel for the appellants/accused submits that the Judgment of the learned Sessions Judge is not based on proper appreciation of the material on record and that the trial Court has failed to take into consideration the material inconsistencies and discrepancies in the evidence of the prosecution witnesses. It is further submitted that even though there is delay in lodging the F.I.R., and that it did not even reach the Court as expeditiously as required, the trial Court has relied upon the same. It is further submitted that the entire evidence is based only on suspicion against the accused but absolutely there is no evidence to connect either A.1 to A.3 for having caused the death of the deceased Cheemala Sudhakar or there is any evidence to establish the conspiracy alleged to have been hatched by A.4 and A.5 so as to hold them guilty of the offence under Section 120-B of I.P.C. The trial Court has also not considered the medical evidence on record in proper perspective and erroneously convicted the accused. Learned Counsel also submits that the Judgment under appeal therefore cannot be sustained and the same is liable to be dismissed.
8. On the other hand, learned Public Prosecutor submits that the material on record has clinchingly establish that the accused, in view of the existing hostilities between the accused family and the prosecution witnesses, has conspired and caused injuries on the deceased on the night of 15-12-2007 which led to his death on 16-12-2007 after having undergone treatment for about 10 days in Yasoda Hospital at Secunderabad. It is further submitted that the injured while he was being shifted to the hospital has informed about the assailants to his kith and kin and absolutely there is no material to discard the testimony of the material prosecution witnesses, the discrepancies and inconsistencies that are being highlighted by the learned Counsel for the appellants/accused are too trivial in nature which do not warrant any interference with the impugned Judgment. It is also submitted that the learned Sessions Judge has appreciated all the aspects in proper perspective and after giving valid and cogent reasons has believed the prosecution witnesses and convicted the accused. Hence, there are no merits in the appeal and the same is liable to be dismissed.
9. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt so as to sustain their conviction and sentence, or whether it needs to be modified, set aside or varied?
10. Point:- The appellants – A.1 to A.3 are charged with an offence punishable under Section 302 read with 34 of I.P.C., whereas the appellants – A.4 and A.5 are alleged to have conspired along with A.1 to A.3 for causing the death of one Cheemala Sudhakar (hereafter referred to as ‘the deceased’) and thereby committed an offence punishable under Section 120(B) of
I.P.C. The plea of the accused is one of denial. Admittedly, there is enmity in between A.4 and A.5, and the deceased and his family members. PWs.1 and 2 are the sisters of the deceased whereas PW.3 is the brother. A.4 is the father of A.5. A.4, A.5 and one Jilkara Rammurthy are alleged to have killed one Damuka Suresh, who is the son of PW.1. That was the subject matter of Cr.No.75 of 2007 of P.S.Ramakrishnapur and they were tried in S.C.No.490 of 2008 and were acquitted. The motive for that crime is said to be that the said Damuka Suresh was having love affair with the daughter of A.4.
11. The further case of the prosecution is that on the 10th day ceremony of the said Suresh, the deceased herein being the maternal uncle of the said Suresh and others formed into an unlawful assembly, beat the family members and caused damage to the property of A.4 and A.5. That was the subject matter of Cr.No.78 of 2007 of P.S.Ramakrishnapur, corresponding to C.C.No.1254 of 2007.
12. A.1 to A.3 herein were accused of having killed one Mohd.Afzal, which was the subject matter of Cr.No.75 of 2007 of P.S.Kagaznagar. In connection with that crime, A.1 to A.3 herein were in judicial custody whereas A.4 and A.5 were in the same jail in the crime relating to the death of Suresh, the nephew of the deceased herein. While in jail, A.4 and A.5 are alleged to have conspired with A.1 to A.3 and a conspiracy was hatched, whereby A.1 to A.3 were to kill Sudhakar, who was a threat to A.4 and A.5 for a consideration of Rs.50,000/-. Subsequently, the accused are said to have been released on bail in the respective crimes.
13. In pursuance to the said conspiracy, on 15-12-2007 at about 10.00 p.m., A.1 to A.3 are alleged to have caused multiple injuries to the deceased and fled the scene thinking the deceased to have died. However, the deceased, who was driving the auto trolley, is said to have driven the said auto trolley and went to the house of PW.4 and informed him about the attack and fell down there with bleeding injuries. PW.4 in turn is said to have informed PWs.1 to 3 and they all rushed to the house of PW.4 where the deceased was found lying with injuries and an ambulance was summoned and the injured was firstly taken to the Government Area Hospital, Mancherial, and after initial treatment, the injured was referred to the Higher Medical Centre. It is said that the injured was taken to t h e Government Hospital at Karimnagar and thereafter to Warangal and from there, he was brought to Yashoda Hospital, Secunderabad, and admitted there at about 7.30 a.m., on 16-
12-2007. The injured was in Yasoda hospital and ten days thereafter i.e., on 25-12-2007 he died and the cause of death is said to be cardio respiratory arrest septic shock due to multiple stab injuries involving vital organs.
14. While the matter stood thus, on 16-12-2007 at about 09.00 a.m., PW.1 went to P.S. Ramakrishnapur and lodged the complaint Ex.P.1, on the basis of which PW.27 the S.I. of Police registered a case in Cr.No.175 of 2007 under Section 307 read with 34 of I.P.C., and issued the F.I.R. –Ex.P.34. The F.I.R. was dispatched to all concerned and it was received by the jurisdictional Magistrate by post on 19-12-2007. Initial investigation was done by PW.27 and after the death of the injured and the alteration of Section of law, the investigation was taken up by the Inspector of Police PW.31. Nearly six months after the incident, i.e., on 10-6- 2008, PWs.11 and 12 are said to have come to the Investigating Officer and informed that A.4 and A.5 made an extra-judicial confession before them admitting their involvement in the crime pertaining to the death of the deceased. The Investigating Officer is said to have gone to the house of A.4 and A.5 and apprehended them. In pursuance to their confession, the police people effected the arrest of A.1 to A.3 at Kagaznagar. Confessional statements were recorded, in pursuance to which, M.Os.5 and 6 – knives were recovered and also M.O.7 the motorcycle said to have been used by the accused. The Investigating Officer also got conducted the Test Identification Parade by PW.20 – the Judicial Magistrate of First Class, Chennur.
15. From the above narration of facts, what is manifest is that so far as the incident proper is concerned, there are no eye- witnesses and the case is based upon the circumstantial evidence and the hearsay evidence of PWs.1 to 5, who claim that the deceased informed them as to the manner and method in which he was attacked by the assailants. The statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that person’s death comes into question is relevant when the statement is made by a person who is dead subsequently. The peculiar feature of the case in hand is that in the night of 15-12-2007 the incident took place and the injured is said to have informed PWs.1 to 5 the circumstances leading to his sustaining the injuries and thereafter the injured was alive for full ten days. Except for the evidence of PWs.1 to 5, the prosecution has not produced any other evidence to show that the injured made any statement inculpating the accused. Neither the Police Officers have recorded the statements of the injured while he was undergoing treatment for ten days nor were any steps taken to get the Dying Declaration of the injured recorded by the competent authorities. Except for the partisan and the interested testimony of the kith and kin of the deceased, absolutely no evidence is placed on record so as to hold that the deceased while he was alive made statements setting out the circumstances in which he sustained the injuries or named any of the assailants.
16. The prosecution also failed to show by conclusive evidence that there is direct nexus between the attack and the death of the deceased. As already stated, the cause of death of the deceased is said to be cardio respiratory arrest septic shock due to multiple stab injuries. The Medical Officer – PW.30 who conducted the autopsy over the dead body opined that septicaemia would lead to death if it is not properly treated. As per the evidence on record, simple injuries were sustained by the injured on the night of 15- 12-2007 and he died on 26-12-2007 while undergoing treatment in Yasoda Hospital for about ten days. The Medical Officer who treated the injured during this long period of hospitalization has not been examined. The case-sheet of the injured has not been produced. Eventhough, it is claimed by the prosecution that the authorities of Yasoda Hospital have informed the concerned police about the admission of medico-legal case, no steps are taken by the investigating agency to procure and preserve the best possible evidence in the shape of a statement from the injured himself. It is nobody’s case that all these nine days of hospitalization, the injured was not in a position to speak. Significantly, the S.I. of Police, Ramakrishnapur P.S., was the first to refer the injured to the Government Area Hospital, Mancherial, for treatment by giving a requisition, which is Ex.P.6. The Medical Officer – PW.9 who initially treated the injured admits that the injured was admitted in the hospital at about 0005 hours of 16-12-2007 and was referred to Higher Centre at 0120 hours of 16-12-2007. The Medical Officer found 8 simple injuries and 3 grievous injuries on the person of the injured. Having referred the injured to the Government hospital along with the requisition, the S.I. of Police has not even attempted to record the statement of the injured. It is in the evidence of PW.9, the first Doctor who attended the injured, stated that when he was treated the injured, he was fully conscious and was even replying to the questions. The Medical Officer – PW.9 categorically admits that immediately when the injured was brought to his hospital, he sent the MLC intimation to the Police Outpost situated in the Government Area Hospital, Mancherial.
17. In the absence of the direct evidence of the injured, which was well within the reach of the investigating agency, it is not safe to rely upon the statements said to have been made by the injured in the presence of his kith and kin with reference to the injuries sustained by him, more particularly in view of the bitter hostilities that existed between the two families.
18. Be that as it may, whether the evidence of PWs. 1 to 5 on this material aspect is consistent and inspiring and whether it establishes the involvement of the accused is another aspect to be considered. We have gone through the evidence of these witnesses on the material point and found the same to be inconsistent and discrepant. It may be recalled that it is the specific case of the prosecution that the deceased within hours of sustaining injuries, has informed PWs.1 to 5 about the attack on him. Before proceeding to spell out the material discrepancies, it would be appropriate to state that it is PW.1 who lodged the complaint about the incident on 16-12-2007 at about 09.00 a.m. It is Ex.P.1. When the incident took place at about 10.00 p.m., on 15-12-2007, and the injured was referred to the Government Area Hospital by the S.I. of Police even before 12.00 in the mid-night, as is evident from Ex.P.6, no complaint was lodged till 09.00 a.m. of 16-12-2007. That apart, a reading of Ex.P.1 shows as if the complainant is the eye-witness to the incident. It is not mentioned therein that she was told about the incident by her injured brother and on the basis of what was told to her, she is lodging the complaint. If Ex.P.1 is to be believed, PW.1 – the complaint is an eye-witness but not a person who was informed about the attack by the injured.
19. Coming back to the nature of evidence, it would be trite to extract hereunder as to which of the witnesses said what about the information furnished to them by the injured before he was shifted to the hospital.
20. PW.1 admits that her house is separated by six houses from the house of her deceased brother. On the material aspect, she deposed as under:-
“About 23 months back my brother died. While my brother was coming from B-Zone area in the night at 10.00 p.m., 2 or 3 persons stopped his auto and asked him to take them but my brother refused by stating that they can engage another auto. Those persons stabbed my brother with knives near Darga. The deceased came to the house of Masu Srinivas/L.W.4 with the multiple injuries and informed him that accused also stated that if he picks up any dispute with Jilkara’s families he will not survive. The same fact is also informed to me by my deceased brother. After injured came to the house of L.W.4 Srinu ran to our houses and informed about the incident. After hearing the news L.W.2, L.W.3 and L.W.6 rushed to the house of L.W.4. Mother of Srinu (L.W.4) L.W.7 (Buchakka) also gave water to the deceased.”
21. Another sister of PW.1 viz., PW.2 gave the following version:-
“We came to know about the incident from Srinu/L.W.4.
He informed us that somebody attacked my brother Sudhakar and he was lying at his house. Immediately, PW.1, my husband (L.W.6) and myself rushed to the house of L.W.4 and found my brother on the ground and blood also found by the side of his injured body. When we enquired my injured brother, he stated that 3 persons came on a motorcycle and blocked the road and those 3 persons attacked him at Darga near B- Zone area. He further informed us that those 3 persons attacked with knives. He also informed us that during such attack, my brother took a knife from one of the attacked persons and stabbed one of the three persons with that knife. When my brother fell on the ground with injuries they again stabbed. While causing stab injuries, they challenged that if any dispute is picked up with Jilakara family, he would not survive. Later, he got up and came to the house of L.W.4 in his auto.
………………..
My brother informed us that the Jilakara persons are responsible as such accused are responsible for the death of my brother and we are also of the same opinion that they A.4 and A.5 alone are responsible due to the earlier incident wherein they killed my sister’s son.”
22. PW.3, the brother of the injured, gave the following version:-
“From L.W.4 we came to know that somebody stabbed my deceased brother. When he informed us the incident my brother was lying infront of his house. We immediately rushed to the house of L.W.4. I observed injuries by the side of chest, back side and blood also found on the ground. There is an injury on the head of the deceased. I observed intestines came out from the injury appearing on the left abdomen and below the chest. When we enquired my brother informed us that the persons of Jilakara family attacked him at Darga at B-zone area. He further stated that they challenged the deceased that if he disputes with Jilakara people, the result would be death by stating that 2 or 3 persons stabbed him at the scene. He also stated that when he was coming home, 3 persons blocked his way on the road by keeping a motorcycle and asked him for hire his auto but my brother refused to go with them by stating that he had to go home. My brother also informed us that those persons asked whether he can give them cell numbers of other trolley drivers. While enquiring they began stabbing him. Thinking that the deceased dead, the attackers left the place. My brother slowly got up and came to the house of L.W.4 with his trolley.
23. The significant admission made by PW.3, the brother of the deceased in his cross-examination is to the effect that earlier PW.1 and the family lodged a complaint against A.3 and A.4 (A.4 and A.5) and another suspecting their involvement in the death of her son, but there is no such suspicion which they entertained over the involvement of the accused in the death of his brother and in the present case.
24. PW.4 is the person who is said to be the friend of the deceased and to whose house the injured straightaway went driving his auto after he was attacked. It is not known as to why the injured/deceased went to the house of his friend PW.4 even though his sisters PWs.1 and 2 and the brother PW.3 were residing nearby. However, PW.4 is the first person to whom the injured is said to have narrated the circumstances in which the incident took place. PW.4 deposed on this aspect as under:-
“While I was in my house at about 9.30 or 10.00 p.m., deceased came in his trolley and called me. I went out and found the deceased on the ground with multiple injuries. When I enquired, he stated that some unknown persons attacked him at B-zone area by stopping him and when he was about to give another auto driver number, they stabbed him. He stated that about 3 persons stabbed him. I cannot state the auto number of deceased. Immediately, I went to the house of the sister and brother-in-law to inform about the deceased. They also came to my house when I informed about the deceased person. I observed injuries on the chest and back side of deceased body. I also accompanied the injured to hospital along with his brother PW.3. We took him to Mancherial, Karimnagar and Warangal Government hospitals and then to Yasoda Hospital, Hyderabad. After 10 days the deceased succumbed to injuries.”
25. PW.5 is the mother of PW.4 who gave the following narration:-
“The deceased was driving an auto-trolley. The injured came to our house and fell in front of my house and called my son PW.4. Both my son and myself went outside. My son PW.4 went to the sister and brother-in- law of injured to bring them to our house. When Sudhakar (injured) asked for water, I gave him some water to drink. When I enquired, the injured also stated before me that Jilakara people attacked him and he caused knife injury to one of the attacked persons. The incident occurred near Darga. Injured came to our house in a trolley. He also informed the facts about the incident to his family members also. My son PW.4 called 108 ambulance to shift the injured to the hospital. After 10 days of the incident deceased died.”
26. Not only the evidence of PWs.1 to 5 is not consistent with each other but even according to them, the deceased is said to have informed that Jilakara people have attacked him. Who are those Jilakara people is not known. It is in the evidence of PWs.4 and 5 that there are about 20 families with the surname Jilakara in the village. That apart, as per some witnesses, the Jilakara people have participated in the assault, which is nobody’s case. As already stated, except for the above testimony of PWs.1 to 5, there is absolutely no other evidence to show as to what the injured has to say about the attack made on him.
27. The conduct of the investigating agency is unfathomable. Even at the cost of repetition, it may be stated that when the incident is said to have taken place at about 10.00 p.m., within less than an hour the injured was in the company of PWs.1 to 5 and he went to the jurisdictional police station and from there, the S.I. of Police along with the requisition has referred the injured to the Government Area Hospital, Mancherial, where he was treated by PW.9. Thereafter, the injured was taken to the hospitals at Karimnagar, Warangal, and finally he came to Yasoda Hospital at Secunderabad. Inspite of that, neither any complaint was lodged by any of the persons accompanying the injured nor any statement was recorded from the injured. Only at 09.00 a.m., i.e., nearly one-and-a half hours after the injured was admitted in Yaosda Hospital at Secunderabad, PW.1 – the sister of the injured went to P.S.Ramakrishnapur and lodged the complaint Ex.P.1. This material on record gives credence to the contention of the accused that even before Ex.P.1 was lodged, there would have been another complaint or the statement recorded from the injured and since that do not help the case of the prosecution, the same has been suppressed and only the complaint lodged at 09.00 a.m. is pressed into service. In other words, the contention of the accused is that the prosecution has suppressed the earliest version about the incident or the assailants.
28. Yet another aspect is it is not only delay in lodging the complaint but the complaint reached the jurisdictional Magistrate on 19-12-2007 i.e., 3 days after it was lodged. It is admitted by the Investigating Officer that from Ramakrishnapur P.S., a Court orderly/constable will regularly go to the jurisdictional Magistrate, but still the F.I.R.-Ex.P.34 and the complaint was sent by Post to the Magistrate’s Court. We have seen the record and do not find the postal cover in which the F.I.R. was sent by post to the Court. As per Rule 24 of the Criminal Rules of Practice, it is obligatory on the part of the prosecution to produce the postal cover duly initial by the jurisdictional Magistrate if any complaint is sent by post. That apart we have perused the original of Ex.P.1 and found that there is not even a single fold on a fullscape sheet evidencing the fact that it was folded and sent in a postal cover.
29. In this connection, the learned Counsel for the appellants relied upon a decision of the Supreme Court in THULIA KALI v. THE STATE OF T.N. (1972 Crl.L.J.1296 = AIR 1973 S.C., 501), wherein it is laid down as hereunder:-
“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 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 eye-witnesses 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 the lodging of the first information report should be satisfactorily explained. When an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the placed occurrence it is unsafe to base conviction upon the evidence.”
Reliance is also placed on a Judgment of this Court in BOYA PEDDA MADDULETI AND OTHERS v. STATE OF A.P. (2004 (2) ALD (Crl.) 568 (AP), where a Division Bench of this Court observed as under:-
“In the absence of any explanation for delay in F.I.R. the version of the prosecution as weakened. Though mere delay is not fatal in every case, but delay has to be satisfactorily explained. F.I.R. in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the evidence adduced at the time of trial. The object of insisting upon prompt lodging of the report to the police in respect of the commission of an offence is to obtain prior permission regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them and the names of eye- witnesses present at the scene of occurrence. The delay in lodging the F.I.R. often results in embellishment, which is the creature of an afterthought.
But in the instant case, it is to be seen that the village is situate on the main highway and the distance is only 20 K.Ms., and the delay is nearly seven hours. In such a situation, the delay ought to have been explained properly by the prosecution as to under what circumstances such a delay had occurred, but no satisfactory explanation is forthcoming except stating that the First Information Report was sent to the Court, which was received by the Magistrate at 7.00 p.m. This is yet another doubtful instance where the prosecution tried to mulct as many persons as possible, who belong to the rival faction group.”
30. The case of the prosecution is that just before the incident, the deceased attended a party hosted by Mahender (PW.6) who purchased the auto and after the party was over, he was returning home when the incident took place. The witnesses who speak on this aspect are PWs.6, 7, 8 and 10. All these 4 material witnesses turned hostile and denied having given their statements before the police as in Exs.P3, P4, P.5 and P.8.
31. PW.6 deposed that he purchased a new vehicle and in that connection arranged a party in front of the hotel of one Venkata Raghavulu (PW.7). That the party commenced at 8.00 or 8.30 p.m., and was over by 9.00 or 9.30 p.m. He further deposed that after the party, they disbursed and went to their respective houses. Next day morning, he came to know that some persons have attacked the deceased near darga. The evidence of PW.7 is on similar lines as that of PW.6. PW.8 deposed that at about 9.00 or 9.15 p.m., on the date of the incident, he went to consume liquor along with PW.10. He deposed that next day morning, he came to know that the deceased was attacked by the members of Jilakara family with whom they have disputes. Similar is the evidence of PW.10. However, PW.10 further added that at the time when they were consuming liquor, they have observed A.1 to A.3, who were also consuming liquor. It is further in his evidence that next day morning, he came to know that somebody has stabbed the deceased and he was taken to hospital. As per the prosecution, PWs.8 and 10 are the persons who have seen A.1 to A.3 at the place where the party was going on. Even if that is taken as true, it does not in any way show that it is the accused A.1 to A.3 who have followed the deceased or taken him away or that they are in any way responsible for the assault. It is further in their evidence that when they went to the office of the C.I. of Police, A.1 to A.5 were in the police station and that A.1 to A.3 admitted in their presence that they killed the deceased. It may be stated here that they are not the persons in whose presence the accused are alleged to have made the confession leading to the recovery of incriminating material.
32. The further case of the prosecution is that nearly six months after the incident, i.e., on 10-06-2008, A.4 and A.5 are said to have made extra-judicial confession in the presence of PWs.11 and 12, and these 2 witnesses came to the Inspector of Police and informed about the confession, which led to the apprehension of A.4 and A.5 and at the instance of A.4 and A.5, A.1 to A.3 were apprehended. PWs.11 and 12 have turned hostile and denied that anything of that sort took place in their presence. PWs.11 and 12 are the MPTC members of the village and they had acquaintance with A.4 and A.5, who were their villagers. It is admitted by PWs.11 and 12 that even in the case pertaining to the murder of Damaka Suresh (nephew of the deceased herein), they were listed as witnesses on the similar aspect. In that crime also, A.4 and A.5 herein were the accused. Both the crimes are different and distinct. It is difficult to believe that A.4 and A.5 chose the same witnesses for making extra-judicial confession on two different occasions involving two different crimes viz., one involving the death of Suresh and the other the deceased herein. That apart, even according to the prosecution, this extra-judicial confession which, however, is not spoken to by PWs.11 and 12 was made by A.4 and A.5 six months after the incident. It may be recalled that even from the very date of the incident, the suspicion was being expressed against Jilakara family though not specifically against A.4 and A.5. With such allegation, the complaint was also filed and the substantial part of investigation concluded by the end of December, 2007. It is not as though that A.4 and A.5 are absconding from the village. It is not even shown that in the previous crime where A.4 and A.5 were released on bail, they were absconding. That means, right from December 2007 to June, 2008, A.4 and A.5 along with other Jilakara family people were in the village where PWs.11 and 12 were living and were holding the position of MPTC. What was the need for A.4 and A.5 to go before PWs.11 and 12 nearly six months after the incident and spill the beans is not explained. Learned Counsel appearing for the accused rightly submits that the so-called extra-judicial confession is nothing but a planted version by the investigating agency. This contention is fortified by the evidence of PWs.11 and 12. One more aspect on this point is that even according to the investigating agency, A.4 and A.5 went to the house of PWs.11 and 12 and made the extra-judicial confession and thereafter, PWs.11 and 12 came to the Inspector of Police and informed him about the extra-judicial confession. A.4 and A.5 were not produced by PWs.11 and 12 before the police even according to the Investigating Officer – PW.31. On the other hand, PWs.11 and 12 came to him and informed about the extra-judicial confession and thereafter, the police party went to the house of the accused and there they were apprehended. This is not natural and if really A.4 and A.5 confessed having committed the grave crime, PWs.11 and 12 would have produced A.4 and A.5 along with them before the Police Officer.
33. The other circumstantial witnesses are PWs.13, 14, 15, 16, 17, 19 and 25, who are said to have acted as panch witnesses during the course of investigation, such as scene of offence panchanama, inquest and confession. All these witnesses turned hostile to the case of the prosecution. PW.13 is the brother-in-law of A.3 and he is the owner of the motorcycle bearing No.AP-01-P- 4490. It has not come in the evidence that this is the motorcycle which was used by A.3 or others at the time of commission of the crime. PWs.14 and 15 deposed that the police came to their houses and obtained their signatures on some papers but did not seize the blood stained earth or controlled earth as claimed. PW.16 deposed that the police called him to the house of PW.3 and from there, the blood stained clothes of the deceased were seized in his presence. He further deposed that the clothes were in fact not seized in his presence but that he was informed that the panchanama is in connection with the seizure of clothes and he put his signature. PWs.17 and 26 are the panch witnesses in whose presence inquest panchanama was conducted.
34. PW.18 is the person in whose presence A.4 and A.5 are alleged to have made the confession leading to the discovery of fact. He denied that A.4 and A.5 made any confession in his presence and nothing was seized in his presence. PW.18 deposed that he was called to the Police Station where A.4 and A.5 were also present. He, however, deposed that at the instance of the police, when he enquired with A.4 and A.5, they did not state anything. The police obtained his signatures. Similarly, PW.19 deposed that no confession and recovery panchanamas were conducted in their presence and that their signatures were obtained on blank papers.
35. From the above evidence of the independent panch witnesses, the prosecution could neither prove that the panchanamas as alleged were conducted, any incriminating objects were seized or that A.1 to A.5 made any confessions in their presence leading to the recovery of the material objects.
36. The other aspect of the case of the prosecution is that since the offence was committed by A.1 to A.3, who were utter strangers to the villagers, the Test Identification Parade was conducted by the Magistrate PW.20 as per the procedure. It is in the evidence of PW.20 that on a requisition by the police, he conducted T.I.Parade in the jail premises on 12-07-2008. In the said T.I.Parade, A.1 to A.3 participated and PWs.8, 10 and 21 were called upon to identify the suspects. It is in the evidence of PW.20 that PW.8 identified A.1 and A.3, PW.10identified A.1 and A.3 and PW.21, who is the doctor who treated A.2, has identified A.2. The T.I.Parade proceedings conducted in this case have lost its sanctity for more than one reason. First of all, PWs.8 and 10, who identified A.1 and A.3 before the Magistrate in T.I.Parade, have turned hostile. PW.8 stated that they were called to the Office of the C.I. of Police and at that time, A.1 to A.5 were in the Police Station and he has seen them. Similarly, PW.10 also deposed that he was called to the Office of Circle Inspector along with other villagers and at that time, he has seen A.1 to A.3 in the Police lock-up. As per the case of the prosecution, the accused were apprehended on 10-06-2008. While the accused were in the police station, PWs.8 and 10 claim that they have seen them along with other villagers. Therefore, their identifying the accused in the T.I.Parade held on 12-07-2008 pales into insignificance. That apart, it is admitted by the Investigating Officer that immediately after the arrest, vide publicity was given about the apprehension and the photographs of the accused also appeared in the print and electronic media. Further more, a T.I.Parade to be relied upon has to be conducted at the earliest point of time. In the instant case, when the incident took place on 15-12-2007, the T.I.Parade was conducted on 12-07-2008 i.e., nearly 7 months after the incident. A.1 to A.3 were utter strangers to the prosecution witnesses who were alleged to have seen them while they were celebrating a party. Even according to the prosecution, PWs.8 and 10 have seen A.1 to A.3 at a place where they were consuming liquor. After having seen them in that condition at that point of time to expect that PWs.8 and 10 can identify the persons who were utter strangers to them nearly 7 months thereafter is difficult to be accepted. While persons see strangers with whom they have no scope for any interaction, more particularly, when they were all consuming liquor, there is no possibility for any person to observe the specific features of any person so as to identify them nearly 7 months thereafter as persons having been noticed by them on the date when the incident took place. Unless one person have an opportunity to have a detailed look or interaction with the stranger, it may not be possible for a person to identify long afterwards. Therefore, it appears that PWs.8 and 10 were made to see A.1 to A.3 when they were arrested by the C.I. of Police as claimed by them. This aspect is not only admitted by PWs.8 and 10 but even the accused A.1 to A.3 have informed this aspect to the Magistrate PW.20 at the time when the T.I.Parade proceedings were conducted on 12-07-2008. In view of the above, not much significance can be attached to the T.I.Parade proceedings Ex.P.26 conducted by the Magistrate PW.20.
37. The other aspect of the matter is about the medical evidence. It is unfortunate that in a grave crime like the one in hand, the investigating agency conducted in an unsually strange manner. It may be recalled that PW.27 the S.I. of Police who registered the crime on 16-12-2007 at about 09.00 a.m., on the basis of a complaint lodged by PW.1. He was aware that the injured has been admitted in Yasoda Hospital, Secunderabad. As already stated, no sincere attempt was made by the investigating agency either to record the statement of the injured under Section 161 Cr.P.C., or get the dying declaration recorded. The injured was inpatient in Yasoda Hospital, Secunderabad, for full 9 days. It is not even the case of the prosecution that through out this period of hospitalization, the injured was either unconscious or in coma or was not able to speak. On the other hand the medical evidence clearly shows that the injured was speaking and even the cause of death is said to be cardio respiratory arrest due to septic shock due to multiple stab injuries.
38. In addition to the above, absolutely no evidence is produced by the prosecution to show as to what was the nature of treatment given to the injured during his hospitalization in Yasoda Hospital. The Doctor who treated the said injured has not been examined. The case-sheet of the injured has not been produced. The only evidence that is produced in connection with the treatment and the death of the injured at Yasoda Hospital is Ex.P.29, which is the death intimation said to have been sent by the security wing of Yasoda Hospital. The only witness that is examined on this aspect is PW.22, who is the medical practitioner in Yasoda Hospital. It is not the case of the said Doctor that it is he who treated the injured during the period of hospitalization. He deposed that on 16-12-2007 the injured was admitted in the hospital and he died on 25-12-2007 and that he declared him dead and thereafter the security staff of the hospital issued the death intimation, which is Ex.P.29. The doctor was not even able to say as to whether the injuries sustained by the injured/deceased were stab injuries or slash injuries.
39. In a case of this nature, where the injured sustained simple injuries and the crime was registered under Section 307 of I.P.C., and subsequently the injured succumbed to the injuries nearly ten days after the attack, it is obligatory on the part of the prosecution to establish that the injured was given proper treatment and that in spite of the best medical care, the injured succumbed to the injuries, which was directly the offshoot of the injuries sustained by the deceased. The investigating agency has miserably failed to procure and secure this evidence even though it was very much available. Had the Investigating Officer examined the doctors who treated the injured for ten days in Yasoda Hospital and produced the case-sheet, things would have been different. This lacklustre approach on the part of the senior Police Officers cannot be countenance.
40. A.4 and A.5 are said to have hired A.1 to A.3 for causing physical harm to the deceased since they were facing threats from him. This conspiracy is said to have been hatched while A.4 and A.5 along with another were in judicial custody in a case pertaining to the murder of the nephew of the deceased. At that time, A.1 to A.3 were also in the same jail in connection with some other crime. The fact that A.1 to A.3 and A.4 and A.5 were in the same jail at the relevant point of time is not disputed. It is also borne out from the record that after release from the jail, A.5 met A.1 while he was still in jail. Only on the basis of this circumstance, the prosecution wants the Court to believe that it is the conspiracy of A.4 and A.5, which led to the commission of the crime by A.1 to A.3. The investigating agency has not conducted proper investigation, as is required in a case of this nature. For instance, the so-called confessions, which are said to have been made by A.1 to A.3 and A.4 and A.5, clearly spell out the details of the telephone numbers and the telephonic conversations which A.1 on the one hand and A.4 and A.5 on the other hand had. It is the confession of the accused that they had been contacting with each other after they were released from jail and even cell-phone numbers are mentioned. Even on the date of incident 15-12-2007, just before the alleged incident, and even thereafter, it appears that there were some conversations over cell-phones in between
A.1 on the one hand and A.4 and A.5 on the other. With the advancement of technology, it is not difficult for the Investigating Officer to secure the data pertaining to the two cell-phone numbers of A.1 to A.3 on the one hand and A.4 and A.5 on the other hand. Had that data been produced, it could have shown that as to whether A.1 to A.3 on the one hand and A.4 and A.5 on the other hand were in constant touch from the date of release, more particularly on the date when the incident took place just prior and immediately thereafter. This would have been the best possible evidence in a case which is based on the theory of conspiracy and unfortunately the Investigating Officer wittingly or unwittingly failed to place the same before the Court. We are conscious of the fact that lapses on the part of the investigating agency do not always enure to the benefit of the accused. However, when the lapses are so grave and raises serious doubt about the complicity or otherwise of the accused, it has certainly to be looked into for determining the guilt or otherwise of the accused and if any doubt arises there from, the benefit thereof should invariably go to the accused. As already noticed, the Investigating Officer has failed to produce the best evidence in the shape of the statement of the injured when he was alive for 10 days or even obtained the medical records, the dying declaration, or the data pertaining to the telephonic conversations in between the alleged perpetrators of the crime and the conspirators.
41. The most crucial aspect of the case is that the Investigating Officer-PW.31 categorically admitted in his evidence that except for the confession said to have been made by the accused, absolutely there is no evidence in the case which connects the accused with the crime. As already stated, confessional panchanamas are not conclusive proof and only that portion which leads to the discovery of fact is admissible and in the instant case, even that aspect has not been established inasmuch all the panch witnesses have turned hostile and categorically denied that A.1 to A.5 made any confessions in their presence so as to hold that it is they who have committed the crime.
42. According to the prosecution, at the time when the attack was taking place on the deceased, it is alleged that the deceased has snatched knife from the hands of the accused and attacked
A.2 and caused injuries. Voluminous oral and documentary evidence has been produced to show that he was treated by different doctors and was even inpatient in Surya Hospital in Karimnagar. In all these medical records, it is mentioned that A.2 sustained an injury on his forearm in a road traffic accident. Merely because, A.2 sustained some injury and was treated in hospital and in the absence of any evidence to show that it is the deceased who caused that injury merely because the prosecution proved that A.2 had an injury which he claims to have sustained in road traffic accident cannot be connected with the participation of A.2 in the crime involving the attack on the deceased. It is, however, noticed from the voluminous medical evidence on record that it is not established as to with what weapon a solitary injury was caused on the forearm of A.2.
43. Learned Counsel appearing for the accused while assailing the Judgment of the trial Court submits that the learned Sessions Judge has proceeded merely on the basis of presumptions and surmises and convicted the accused even though there was no legally acceptable evidence on record. Upon carefully going through the Judgment, we find that there are certain observations made by the trial Court, which trend to show that it proceeded on certain presumptions which is not permissible. For instance, even in the concluding paragraph (paragraph No.49) the learned Sessions Judge observed that there is ample evidence on record to connect the guilt of the accused and to conclude that the accused had intention, preparation and motivation to kill the deceased and that there is sufficient evidence to presume that except the accused, no other person is responsible for murdering the deceased. In the very same paragraph, the trial Court observed that if the accused are not properly dealt with when they are in the process of becoming organised gangs and professional criminals and the act of such gangs are not destroyed at the budding stage, there is every possibility that they become hardcore criminals in the future. It is further observed that any lenient view towards such professional killers may send wrong signals to prospective offenders that they can escape from law and Courts on one ground or the other, and that the prosecution in the instant case proved the charges against the accused A.1 to A.5 under Sections 302 and 120-B of I.P.C. beyond all reasonable doubt with clinching, cogent, consistent and corroborating evidence. The above observations, though may be relevant in deciding about the quantum of sentence, but they should not be taken into consideration for determining the guilt or otherwise of the accused.
44. Having carefully gone through the voluminous oral and documentary evidence on record, we find ourselves to be not in a position to agree with the findings of the learned Sessions Judge. The prosecution has miserably failed to produce the most clinching evidence so as to establish the nexus between the crime and the criminals. The evidence on record at best raises suspicion against the accused which cannot be taken as proof. The very complaint – Ex.P.1 lodged by PW.1 itself states that they have suspicion against A.4 and A.5. The prosecution has therefore failed to prove the case against the accused beyond reasonable doubt. The Judgment under appeal cannot, therefore, be sustained and the same is liable to be set aside. The point is accordingly answered.
45. In the result, the criminal appeal is allowed and the conviction and sentence imposed by the Court of III-Additional Sessions Judge (FTC) at Asifabad in S.C.No.315 of 2009 against the accused for the offences punishable under Sections 302 and 120-B of I.P.C., are set aside and they are acquitted of the said charges and they shall be set at liberty forthwith if not required in any other case. Fine amount, if any paid, shall be refunded to the accused. Material objects shall be destroyed after appeal time is over.
G.Chandraiah, J M.S.K.Jaiswal, J 18th July, 2014 Prv/smr HON'BLE SRI JUSTICE G.CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.279 OF 2010 Prv/smr 18th July, 2014