HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.427 of 2010 Dated: 09.06.2014 Kesireddy Pichi Reddy & 12 Others.
….. Appellants/Accused And The State of Andhra Pradesh, Represented by PP. High Court, Hyderabad … Respondent HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.427 of 2010 JUDGMENT: (Per the Hon’ble Sri Justice G.Chandraiah) This Criminal Appeal is preferred by the appellants/accused against the judgment dated 25.01.2010 in S.C. No.3 of 2008 passed by the learned X Additional District and Sessions Judge (FTC) Guntur at Narasaraopet, whereby the appellants-accused were convicted under Section 235(2) Cr.P.C. for the offences punishable under Section 148 and 302 read with 149 of the Indian Penal Code, 1860 (for short, “IPC”) and sentenced to undergo rigorous imprisonment of three months and to pay a fine of Rs.500/- (five hundred only) each for the offence under Section 148 IPC, and in default of payment of fine to suffer one month simple imprisonment, and also sentenced them for the offence under Section 302 read with 149 IPC to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- (Rupees one thousand only) each for the offence under Section 302 read with 149 IPC, and in default of payment of fine to suffer simple imprisonment of three months, and both the sentences were directed to run concurrently.
2. The brief facts of the prosecution case that are necessary for disposal of this appeal may be stated as follows:
Appellants-accused, who are inter-related and the prosecution witnesses are residents of Veldurthi Village. In the village, there are two rival political groups, headed by Reddy Community. In view of the criminal activities of both the groups, Police registered many cases and some of them are compromised and acquitted. In view of their political activities, appellants-accused group bore grudge against the deceased, Julakanti Laxma Reddy.
On 03.09.2007, the deceased went to attend a marriage function at Manukonda Kalyana Mandapam, Macherla by motorcycle along with, P.Ws.1 to 5, Pulusu Rama Krishna Reddy, Yerram Polireddy, Julakanti Sundara Rami Reddy, Kotla Srinivasa Reddy and Pulusu Chidambara Reddy. On knowing the same, A-1 to A-13 conspired and hatched a plan to kill the deceased and were waiting near the Panchayat office in Veldurthi village with deadly weapons, such as spears, hunting sickles and knives. At about 10 pm., the deceased was on the way to return to his village, along with P.W.2 and 3, Yerram Polireddy and Julakanti Sundara Rami Reddy as pillion riders and P.W.5, Pulusu Chidambara Reddy, followed by the deceased on another motorcycle along with P.W.1, Pulusu Rama Krishna Reddy and P.W.4, Kotla Srinivasa Reddy as pillion riders, and stopped his motor cycle near the house of P.W.2, situated near Panchayat office and Ramalayam. When P.W.2 got down from the motorcycle of the deceased, appellants-accused having formed themselves into unlawful assembly, A-1, A-2, A-7, A-9 and A-13 armed with hunting sickles, A-3, A-5, and A-10 armed with spears, A-4, A-6, A-11 and A-12 armed with knives, A-8 with stick attacked the deceased in furtherance of their common object to do away with his life. A-1 and A-2 hacked the deceased with hunting sickles on his face, A-3 speared on his left hand wrist, A-5 speared below his abdomen and above his pennies, A-6 stabbed on his abdomen with knife, A-7 hacked on his abdomen with hunting sickle, A-8 beat him with stout stick, A-9 hacked on his left shoulder with hunting sickle, A-10 speared below his left leg knee, A-11 stabbed with knife on his right cheek, A-12 stabbed with knife on his right cheek, and A-13 hacked below his left shoulder with hunting sickle. As a result of the said attack, the deceased sustained fatal injuries and died on the spot. Appellants-accused also threatened P.Ws.1 to 5 and others with dire consequences and prevented them from coming to the rescue of the deceased.
3. On the report lodged by P.W.1, in the intervening night of 3/4.09.2007, PW.11, Inspector of Police, Macherla, forwarded the same to Veldurthi Police Station, and P.W.9, Assistant Sub- Inspector of Police, registered the same as Crime No.76 of 2007 under Section 147, 148 and 302 read with 149 IPC. P.W.11, took up investigation and during the course of investigation, he inspected the scene of offence, prepared rough sketch and observation report duly attested by P.W.10, Shaik Moulali and other, conducted inquest over the dead body of the deceased, and sent the dead body to the Government Hospital, Macherla for Postmortem examination. PW.8, Dr.N.Kumara Swamy, Civil Assistant Surgeon, Community Health Centre, Macherla, conducted autopsy over the dead body and opined that the deceased died due to shock and haemorrhage due to multiple injuries. On 17.09.2007, P.W.11 arrested the appellants- accused and recorded their confessional statements, and in pursuance of their confession, P.W.11 seized the weapons, alleged to have been used in the commission of offence, under a cover of mediatornama duly attested by P.W.10 and other and sent them to RFSL, Guntur along with material seized. Thus, the police concluded that the appellants-accused committed murder of the deceased and are liable to be punished under Section 147, 148 and 302 read with 149 IPC and filed charge sheet accordingly before the Judicial Magistrate of First Class, Macherla, where it was taken cognizance as PRC No.52 of 2007.
4. After complying with the mandatory provisions of Code of Criminal Procedure, and on being satisfied that the case was triable exclusively by Court of Sessions, the learned Magistrate committed the same to the Sessions Division at Guntur, wherein it was registered as S.C.No.3 of 2008 and was made over to X- Additional District & Sessions Judge, Guntur at Narasaraopet for disposal according to law.
5. Charges referable to Sec.147, 148 and 302 read with Sec.149 IPC were framed against the accused, who pleaded not guilty and claimed to be tried. During the course of trial, the prosecution examined PWs.1 to 11, and marked Ex.P.1 to Ex.P.12; and M.Os.1 to 11 were taken on record. The accused examined under Sec.313 Cr.P.C., where they have denied the incriminating material appearing against them, and except marking Exs.D.1 and D.2, which are the portions of Sec.161 Cr.P.C. statements of PWs.2 and 5, no other defence was produced.
6. Through its Judgment dt. 25.01.2010, the trial Court found the accused guilty of all the charges, except the charge under Sec.147 I.P.C. The accused were imposed the sentence of imprisonment for life, and fine of Rs.1,000/-, in default simple imprisonment for three months for the offence under Sec.302, read with Sec.149 IPC; and rigorous imprisonment for three moths and fine of Rs.500 for the offence under Sec.148 I.P.C.
7. Aggrieved by the said conviction and sentence, the appellants preferred the appeal contending that the learned Sessions Judge has not appreciated the material on record in proper perspective and erroneously delivered the findings. It is further submitted that the evidence of PWs.1 to 7, was mechanically accepted, even though the same is discrepant and inconsistent. It is also submitted that even though there was no satisfactory evidence about the presence of the street lights, the claim of the eye-witnesses that they have witnessed the incident was believed. It is further submitted that there was no motive whatsoever for the accused to kill the deceased; that there was delay of Nine hours in the F.I.R., reaching the Magistrate, which was used for deliberations; that there was material discrepancy in between the ocular testimony and the medical evidence on record; and that the so called confession and recovery is not established. The learned counsel for the accused submits that except the self-serving and parrot like testimony of PWs.1 to 5, absolutely there is no other independent evidence, which connects the accused with the alleged crime. Hence, the appeal.
8. Learned Additional Public Prosecutor, on the other hand, submits that it is no doubt a case of political rivalry, and the deceased and the prosecution witnesses were charged for having committed murders of as many as 11 persons prior to this incident. Learned Additional Public Prosecutor submits that that by itself cannot be a ground for disbelieving the otherwise cogent and trustworthy testimony of PWs.1 to 5, who have seen the barbaric act of the accused in killing the deceased due to political differences. Learned Public Prosecutor submits that the Judgment under appeal is based on proper appreciation of the material on record and it do not warrant any interference.
9. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt, so as to sustain the conviction and sentence imposed, or whether the impugned Judgment needs to be set aside or modified.
1 0 . Point: In Veldurthi village of Guntur district, the two predominant political parties are Congress and Telugu Desam. While the accused are said to be the followers of Congress Party, the deceased and PWs.1 to 5 are with the Telugu Desam Party. The deceased was gaining prominence in the village much to the discomfort of the accused. It is alleged that with an intention to eliminate the deceased, the accused have conspired to kill him.
On 3.9.2007, the deceased along with PWs.1 to 5 went to Macherla to attend a marriage function at Manukonda Kalyana Madapam, and thereafter at about 11.00 p.m. they all returned to Veldurthi. Six of them are said to have come on two motor cycles, one of which was driven by the deceased. The case of the prosecution is that when they reached in front of the house of PW.2, Yerram Poli Reddy, A.1 to A.4 surrounded the deceased with an intention to attack. Seeing them, the deceased ran towards his house, which was nearby and when he has reached in front of the office of the Gram Panchayat, which was in between, the remaining accused obstructed him and all the 13 accused beat the deceased with axes, knifes, sickles and spears. When the prosecution witnesses tried to interfere, it is alleged that the accused have threatened them with dire consequences. Therefore, the prosecution witnesses went towards Ramayalam Temple, which was opposite to the Gram Panchayat office and from there they have witnessed the incident. It is further alleged that hearing the shouts of the deceased, the wife and the mother of the deceased, PWs.6 and 7, along with two others, by name – Pedda Venkata Reddy (Lw.8) and Julakanti Jaya Rami Reddy (LW.9) ran towards the scene of offence, seen the accused going away from there, noticed that the deceased was lying dead, and thereafter PWs.1 to 5 came there.
11. The police were informed about the incident, and the Sub- Inspector of Police – Mr.Madhusudhana Rao (LW-15), in turn, informed the Inspector of Police, Macherla (PW-11), and as per his instructions LW-15 proceeded to the scene of offence; the Inspector of Police came over there at about 12.00 mid night, and after about an hour PW.1 came there and gave the complaint-Ex.P.1, and the same was sent to the P.S. Veldurthi, where PW-9, P.Nageswara Rao, ASI registered the case and dispatched the F.I.R. to all concerned. The F.I.R. was received by the Magistrate at 7.30 a.m. on 4.9.2007.
12. During the course of investigation, statements of witnesses were recorded, scene of offence panchanama was prepared at about 7.00 a.m. and inquest was held. The dead body of the deceased was subjected to post-mortem examination, and the Doctor-PW.8, conducted the autopsy and found as many as 14 ante-mortem injuries, and opined that the cause of death is due to shock and haemorrhage caused by multiple injuries.
13. The admitted facts are that there are longstanding feuds between the prosecution party and the accused party. Both of them are the strong followers of the two main political parties, one tried to have supremacy over another. It is also admitted fact that the prosecution party, including the deceased, have been charged with different murder cases, particularly, in one case, the deceased and the prosecution witnesses were the accused of having caused the death of as many as seven persons, which was the subject matter of Crime No.18 of 2001 of Durgi P.S. It appears that all the cases of gruesome murders involving both the factions were compromised at one stage or the other. None of the persons were subjected to full- fledged trial, culminating in the final verdict.
14. Insofar as the incident in question is concerned, the case is that at about 11.15 p.m. on 3.9.2007 when the deceased and PWs.1 to 5 were in front of the house of PW.2, they were surrounded by A.1 to A.4 and their target was the deceased. When the deceased ran towards his house, and after covering half of the distance, the remaining accused surrounded him at a place, which was in between the Gram Panchayat office and Ramalayam temple, and at that spot all the 13 accused have killed the deceased on the spot by attacking with deadly weapons. The attack being the offshoot of faction feuds, the evidence of prosecution witnesses, who belong to one faction, implicating the members of the other faction has to be considered with utmost care and caution and only when the testimony is not only cogent and consistent, but also inspires the confidence of the Court, the same can be accepted for determining the guilt or otherwise of the accused.
15. Learned counsel for the accused vehemently submits that PWs.1 to 5 were not at all the eye witnesses and that they have been planted by the rival faction. The following circumstances are highlighted by the learned counsel: (1) The evidence of PWs.1 to 5 is parrot-like and they all speak in one voice insofar as specific overt acts are concerned, which are, however, not mentioned in the complaint, Ex.P.1, which was lodged at the earliest point of time. (2) PWs.1 to 5 and the deceased are the members of one faction, and they are all alleged to have committed several crimes in the past, and they all went together to Macherla and while returning initially four accused, namely A.1 to A.4 are said to have surrounded the deceased when he was in front of the house of PW.2. At that time, the deceased was in the company of five people of his group. Though the attack took place on the deceased in front of the house of PW.2, still, PWs.1 to 5 and the deceased did not make any attempt to retaliate or to challenge the accused, who are four in number, and on the other hand, merely because A.1 threatened the prosecution witnesses with deadly weapons, they are said to have ran towards the Ramalayam temple and hide themselves there, and from there have watched the entire gory incident, in which their man was brutally killed.
16. Admittedly, PWs.1 to 5 and the deceased are members of one group, whereas the accused are their rivals. There is no specific reason as to why the accused, numbering 13, have not chosen even to touch PWs.1 to 5, while killing the deceased. This according to the learned counsel is unbelievable.
17. PWs.6 and 7 and two more male persons, LWs.8 and 9 are said to have rushed towards the scene of offence from their house. While the wife and the mother were examined as PWs.6 and 7, the other male persons, who were also present along with them, though listed, have not been examined.
18. If the evidence of PWs.6 and 7, wife and mother of the deceased, is perused, it is manifest that PWs.1 to 5 came to the scene of offence afterwards. It is not the case of PWs.6 and 7 that PWs.1 to 5 were hiding at Ramalayam temple which was just some feet away from scene of offence. They reached the dead body after PWs.6 and 7 being the ladies came from a distance of more than 120 feet.
19. The learned counsel submits that members of factions do not conduct themselves in such a manner, if they really happened to be present there. It is difficult to believe that PWs.1 to 5 had no courage to come out till the two ladies came from their house near the scene.
20. Medical evidence & Oral evidence: As per PWs.1 to 5, thirteen persons beat the deceased all with sharp edged weapons, such as hunting sickles, knifes, spears and stick. Out of them only the stick-M.O.10 is a blunt object, whereas the remaining are sharp edged weapons. If all the accused armed with such sharp weapons, hacked the deceased, they are bound to be several incised injuries over the body of the deceased. Pw.8, the Medical Officer, who conducted autopsy, found 14 injuries, but out of them only one injury is the cut injury; whereas all the remaining injuries are lacerated injuries, which are possible only with a blunt object. The doctor admits in the cross-examination that lacerated injuries invariably will be caused by blunt object, and he did not find any half-moon shaped injuries nor were there any spindle shape or punctured wounds. The doctor admits that he has not found even a single independent incise injury on the dead body of the deceased.
The above aspect creates a doubt as to whether M.Os.8, 9 and 11, which are hunting sickles, knifes and spears, numbering 12, were really used by the accused for causing the injuries on the deceased.
21. Laches on the part of Investigating Agency:
The crucial witness for the prosecution is the Sub-Inspector of Police, who reached the spot within ten minutes after the attack on the deceased. It is LW.15 Mr. M.Madhusudhana Rao, who informed the Inspector of Police about the incident, and it is he who went to the scene of offence and was asked to maintain law and order and also to send search party to trace the accused. He was present at the scene till the Inspector of Police arrived there. Such a witness has not been examined and this according to the learned counsel for the accused is a fatal to the case of the prosecution.
Because of his non-examination, the material information as to at what time he received the telephonic information about the crime, and who informed him is not known. Similarly, due to his non- examination, it is not known as to what was the scenario at the scene of offence immediately after the crime was committed. The evidence of Sub-Inspector of Police would have thrown substantial light on the incident and the involvement of the persons.
22. The nature of investigation in the case of this nature, which is required to be taken by the senior officers is supposed to be meticulous and honest. The half-hearted or perfunctory investigation cannot be countenanced, when a faction ridden or political related murder is committed. There is no gainsaying the fact that the observations of scene of offence is of utmost importance for determining the guilt or otherwise of the persons in the dock.
In the instant case, the learned counsel for the accused submits that as per the Sketch, Ex.P.11, it is clear that in all four pairs of chappals (eight chappals) were found lying scattered near the scene of offence. Even though the Inspector of Police seized the said four pairs of chappals, which are M.O.No.1, absolutely no endeavour whatsoever has been made to connect the said chappals with its owners. Out of four pairs of chappals, one pair belong the deceased. To whom the remaining chappals belong to has neither been investigated nor enquired into. The ownership of these three pairs of chappals will tilt the case of the prosecution or the accused either way. If the three pairs of chappals belong to the prosecution witnesses, their presence at the scene of offence, as claimed by them, gets strengthened, or if they belong to the accused, their involvement gets fortified. Such a crucial aspect has been ignored by the Inspector of Police-PW.11.
23. Delay in F.I.R: The learned counsel for the accused argued that there is a delay in lodging the F.I.R. and its reaching the Magistrate. It is well settled that promptitude in lodging the F.I.R. and its reaching the jurisdictional Magistrate plays a decisive role in a criminal trial, more particularly in a case relating to a factionist murder of persons of one faction will be over enthusiastic to implicate all the members of the rival factions. Therefore, the delay either in lodging the F.I.R. or its reaching the Magistrate plays a predominant role.
In the instant case, the incident took place at about 11.15 p.m. PWs.1 to 5, so also PWs.6 and 7 have claimed to have reached near the dead body within minutes thereafter. Within ten minutes after the incident, the Sub-Inspector of Police also reached the scene, which was about 250 yards away (1/4th k.m.). The Inspector of Police reached there about half an hour thereafter and only after that PW-1 is said to have come forward and gave the lengthy and detailed complaint, Ex.P.1, written neatly on two sides of full-scape paper. Neither PWs.1 to 5, nor PWs.6 and 7, who were present around, just immediately before and after the incident, have chosen to give any complaint to the Sub-Inspector of Police, who happened to reach there with utmost expedition. There is no need for the prosecution party to wait for the arrival of Inspector of Police for lodging the complaint.
24. At about 1.00 a.m. in the night, Ex.P.1 was handed over to PW.11 by PW.1 and immediately it was sent to PW.9 for fulfilling the formality of it being registered. As per the endorsement on the F.I.R - Ex.P.3, the crime was registered at about 01.15 a.m. Macherla where the jurisdictional Magistrate resides is said to be less than 20 kms., away from the scene of offence. It would not have taken more than an hour to reach the Magistrate. However, the F.I.R. was received by the Magistrate only at 7.30 a.m., i.e., nearly six hours after the crime was registered and nearly eight hours after the incident. Ordinarily, this delay cannot be said to be fatal, but in a case of this nature, it would certainly affect the trustworthiness of the prosecution witnesses and the truthfulness of the case of the prosecution.
25. The way in which the investigation was conducted is apparent from the fact that even the scene of offence sketch is not drawn properly reflecting the correct position prevailing at the scene. Even though there were several houses around the scene of offence, the sketch does not show the entire picture clearly. The learned counsel for the accused submits that even though there are several residential houses around, the prosecution has not produced even a single independent witness in support of its case. It is not as if that the incident was committed at the dead end of the night. It was only about 11.15 p.m., when as many as 13 persons have surrounded six persons, and killed one person. This would have certainly raised any amount of commotion so as to attract the attention of the residents.
Significantly, the Investigating Officer admits that he has examined some Vysya community people residing nearby, but did not record their statements, as they have not disclosed any incriminating aspect.
26. The learned counsel for the appellants submits that the so called theory of confession leading to discovery of fact is highly improbable.
PW-10 is the person, who is taken as panch-witness through out the length and breadth of the investigation, which commenced at 7.00 a.m. on 4.9.2007 and concluded by 17.9.2007. He is the same person, who acted as panch witness for the scene of offence as well as the inquest. On 17.9.2007, it is the evidence of PW.11 the Inspector of Police that he got information about the presence of A.1 to A.13 near Davulapalli bus-stand. The Inspector of Police wants to believe that on getting that information he has summoned PW-10 from Veldurthi to Macherla i.e., about 20 kms. away, and after PW-10 reached Macherla, PW.11 Inspector of Police along with others have said to have gone to Davulapalli bus-stand and to reach there it took about 45 minutes. How can it be believed that when the Inspector of Police got information about the presence of A.1 to A.13, who were already named as the accused in the case will be at Davulapalli bus-stand for at least more than two hours. Firstly, PW-11 got the information about the presence of A.1 to A.13 at the bus-stand. Thereafter, he has summoned PW.10, panch-witness from Veldurthi village to Macherla and PW.9 came there to Macherla from 20 kms., away, and thereafter the Inspector of Police along with panch-witness and others went to Davulapalli bus-stand and reached there, which took about 45 minutes. The learned counsel submits that how can it be believed that A.1 to A.13 who were specifically named in the crime will be present at the bus-stand for such a long duration.
27. It is further submitted that the so called recovery is absolutely false and the weapons are planted. According to the prosecution, A.1 and A.7 confessed the commission of the offence and they lead to recovery of M.Os., from a cattle shed of one Kesireddy Nagi Reddy, hidden under the hay-rick. It is also the case of the prosecution that a joint confession and recovery panchanama of all the 13 accused was prepared by the police, which is highly objectionable and impermissible. Confession leading to recovery of an incriminating object is a material piece of evidence and each accused has to be shown as having made a confession, leading to discovery of a fact. There cannot be a joint confession and recovery at the instance of all the 13 accused.
28. For the above reasons, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt goes to the accused and as such they are liable to be acquitted. Hence, we hold that the impugned judgment is not sustainable and the same is accordingly set aside.
29. In the result, the Criminal Appeal is allowed and the judgment dated 25.01.2010 passed in Sessions Case No.3 of 2008 on the file of the X Additional District and Sessions Judge (FTC) Guntur at Narasaraopet, is set aside and the accused are acquitted of the charges levelled under Section 148 and 302 r/w.149 IPC. They are directed to be set free forthwith, if not required in any other case. The fine amount, if any paid by them, shall be refunded to them.
G. Chandraiah, J.
M.S.K. Jaiswal,J.
Date: 09.06.2014 Lsk/Kv HON'BLE SRI JUSTICE G. CHANDRAIAH AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.427 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice G. Chandraiah) Dated: 09..06..2014
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