HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Between:
Criminal Appeal No.593 of 2010 Dated: 29.04.2014 N.Venkatesh and others … Appellants And State of Andhra Pradesh, Represented by PP. High Court, Hyderabad.
… Respondent HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.593 of 2010 JUDGMENT: (Per Hon’ble Sri Justice M.S.K.Jaiswal) The appellants are A.1 to A.9 in S.C.No.167 of 2006 on the file of the III-Additional District & Sessions Judge (FTC), Gadwal. Through Judgment, dated 23-03-2010, the trial Court found them guilty of committing the offence punishable under Section 302 read with 149 I.P.C., and sentenced them to undergo imprisonment for life. They were also found guilty of offence punishable under Section 307, read with 149 I.P.C., and were sentenced to undergo rigorous imprisonment for a period of ten years. They were further convicted for the offence punishable under Section 148 I.P.C., and were sentenced to undergo rigorous imprisonment for a period of three years. Hence, this appeal.
2. The case of the prosecution, in brief, is as under:-
On 18-05-2004 at about 09.00 p.m., A.1 to A.9 formed into an unlawful assembly and with the common objective, attacked N.Rangaswamy (hereinafter referred to as ‘the deceased’) with axes and hunting sickles, due to which he died on the spot. The accused are also alleged to have attacked one Auto Srinu (PW.9) and caused injuries on his head and hands. It is alleged that when the complainant N.Narsappa (LW.1 - since dead) and his brother N.Narayana – PW.8 intervened, the accused beat PW.8 on head and neck. On the complaint from Narsappa – LW.1, Cr.No.23/2004 was registered by the S.I. of Police, Gattu P.S., and the investigation was taken up by PW.19, the C.I. of Police, Gadwal. The statements of the witnesses were recorded, incriminating material objects were seized, inquest was conducted and the dead body was sent to post-mortem examination. The accused were arrested and they were remanded to judicial custody. After completing the investigation, charge-sheet was filed.
The case was taken on file by the Sessions Court, Mahabubnagar, and was made over to III-Additional District & Sessions Judge (FTC), Gadwal, for trial. Charges referable to Sections 148, 302 read with 149 and 307 read with 149 I.P.C., were framed against the accused. On their pleading not guilty, trial was taken up. On behalf of the prosecution, PWs. 1 to 19 were examined, Exs.P.1 to P.42 were filed and M.Os.1 to 9 were taken on record.
On behalf of the accused, Exs.D.1 to D.6, which are the portions of Section 161 Cr.P.C., statements of PWs.1, 2, 6, 7, 8 and 5, were marked.
The findings of the trial Court are as stated above.
3. Smt.A.Gayatri Reddy, learned Counsel for the accused submits that the prosecution has examined PWs.1 to 10 as being the eye-witnesses or the injured witnesses, and their evidence is inconsistent and full of discrepancies. Learned Counsel further submits that in the complaint – Ex.P.36, 17 persons have been specifically named as assailants, but only 9 out of them have been charge-sheeted. It is further submitted that at the time of the incident, there was power failure in the village, as admitted by some witnesses, and it was not possible for the witnesses to see the incident. It is argued that the material witnesses are interested and related to the deceased, and they deposed falsely against the accused, at the instance of one Mahananda Reddy, with whom there are disputes with the accused.
4. Learned Counsel further submits that the evidence on record shows that even by 09.00 p.m., on the date of the incident, viz., 18-05-2004, the police people visited the scene, whereas the complaint Ex.P.36 was lodged at 10.30 p.m. It is argued that even though the police reached the spot at 09.00 p.m. itself, the statements of the witnesses were recorded only in the next day morning. Learned Counsel submits that the part of the investigation done on the night of 18-05-2004, has been deliberately withheld by the investigating agency, and taking advantage of the fact that there are disputes in the matter of elections held in the village, the accused have been falsely implicated at the behest of Mahananda Reddy. He further submits that the trial Court has not taken into consideration, the material omissions, contradictions and improvements in the evidence of witnesses and that it has erroneously found the accused guilty of the offences alleged.
5. Learned Additional Public Prosecutor, on the other hand, submits the evidence of the material witnesses is trustworthy and reliable. She further submits that since the investigation established the involvement of only ‘9’ out of ‘17’ accused, they have been charge-sheeted, and the remaining ‘8’ persons, though named in the complaint, have been excluded. She further submits that the omissions and contradictions, which are highlighted, are too trivial in nature and they do not go to the root of the matter. It is argued that the trial Court has taken into consideration all the aspects and has correctly found the accused guilty, and there are no grounds to interfere with the said findings.
6. 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, or whether it needs to be set aside or modified?
7. POINT:- The facts, as per the prosecution are:
The deceased Ranga Swamy was a fair price shop dealer in Gorlakhandoddi village and his authorization was suspended about six months prior to May, 2004. A.6 is the Sarpanch of the said village. In the elections held for the said post, there were disputes between the accused and the prosecution witnesses. Narsappa, the de facto complainant, since dead, was the father of the deceased. On 18-05-2004, when the deceased and Eklaspuram Srinu PW.9 was returning and when they were in front of the house of Jampanna, A.1 to A.9 along with eight others have attacked the deceased with axes, hunting sickles and sticks and caused instantaneous death. When Srinu PW.9 intervened, the accused beat him. Hearing the cries of PW.9, the complaint and his brother PW.8 went near the scene and the accused beat him on the head and neck. With these allegations, the complainant filed the complaint on 18-05-2004 at about 10.30 p.m., in the night. It is Ex.P.36. In the said complaint, A.1 to A.9 along with eight others have been specifically named as the assailants. It is also mentioned therein that in addition to the 17 named assailants, there were some other persons, who have not been named.
8. The plea of the accused is one of denial and from the suggestions put to the witnesses and also during the course of their examination under Section 313 Cr.P.C., the specific defence of the accused is that they are innocent, that they have been falsely implicated, and that they were implicated at the instance of one Mahananda Reddy.
9. In addition to the two injured persons viz., PWs.8 and 9, the incident is said to have been witnessed by six other persons, who have been examined as PWs.1, 2, 4, 5, 6 and 10.
10. PW.1 is the mother of the deceased. She deposed that on the date of the incident, at about 09.00 p.m., PWs.7 and 9 came and took the deceased for having food outside, and when herself and her husband was sitting in front of the house, they have seen the accused chasing and attacking her son with hunting sickles, axes, spears and sticks. She further deposed that when they started shouting, PW.8 went to the rescue of the deceased, but the accused beat him. PW.8 is said to have sustained a fracture injury on hand. She further stated that her husband gave the complaint to the police and the police came to the scene of offence next day morning at 09.00 a.m., and have taken various steps. However, she is silent about the attack on PW.9, which according to the prosecution, was simultaneous with the attack on the deceased and PW.8. She could not also give the specific overt acts.
11. This witness deposed that all the accused have attacked the deceased. As already noticed, in the complaint, 17 named persons, and ‘others’ were shown as assailants. She did not say as to how many persons attacked her son and PW.8. Her claim that the police came to the village in the next day morning at 09.00 a.m., is contrary to the evidence of the Investigating Officer PW.19. According to him, the police reached the village on 18-05-2004 itself. It was admitted by PW.1 that there is a phone facility in her house. It was not used for informing the police. With regard to the power supply at the time of incident, PW.1 stated that there was no electricity in the village at the time of the attack. She further admitted that as there was no power supply, she could not specifically observe the presence or absence of one Dullu Shankar, at the place of occurrence. She stated that as it was dark, she could notice the presence of only nine accused, but, did not notice as to which accused beat the deceased, with what weapon, and on which part of the body.
PW.1 further admitted that immediately after the incident, even though police was not informed, her daughter-in-law PW.6 went and brought Mahananda Reddy and the complainant was taken by the said Mahananda Reddy to the police station. She admitted that the said Mahananda Reddy lost the election of Sarpanch at the hands of A.6, and that enmity was prevailing between Mahananda Reddy and the accused.
12. PW.2 is an eye-witness to the incident. He deposed that on the night of the incident, at about 09.00 p.m., when he was answering the calls of nature, he heard the cries and went near the scene and noticed the hacking of the deceased on the road. He stated that out of fear, he went away into his house. He deposed that he has seen the assailants of the deceased, who were numbering ‘8’. He named A.1 to A.7 and A.9. In the cross- examination, he admitted that even though he has witnessed the incident, he did not tell about it to anybody till he gave statement to the police. It is also admitted that the remaining nine persons, who have been named in the complaint Ex.P.36, are known to him, but they are not the assailants of the deceased.
13. In his statement before the police, the relevant portion of which is marked as Ex.D.2, PW.2 mentioned that the assailants are A.4 to A.6. He stated that even though there was no power supply, the same was resumed by the time when the actual attack took place. He admitted that he did not observe the specific individual overt acts and the weapons possessed by the assailants. PW.2 has specifically ruled out the involvement of A.8. Further though he claims to have witnessed the entire incident, he did not utter a word about the attack said to have made carried out by the accused on PWs.8 and 9. It is noticed that immediately on the witness being put in the box, even without being asked, he spontaneously stated that the accused have killed the deceased in the year 2004. This is what generally happens when a witness is fully tutored just before he enters the Court Hall, and makes a parrot-like statement.
14. Another eye-witness to the incident is PW.4. He deposed that on the date of the incident, at about 09.00 p.m., when he was standing near the house-cum-hotel of one Narsappa, he heard the cries of the complainant – Narsappa and immediately rushed there and in front of the house of Pedda Jampanna, he has seen the accused murdering the deceased with hunting sickles, sticks and knives. He further stated that he has also seen the accused beating PWs.8 and 9, but due to fear, he did not go to the rescue of the deceased. In the cross-examination, he admitted that there was no power supply in the village from 08.00 p.m., and even at the time when the incident took place, it was dark. He also admitted that due to darkness, he could not identify the culprits, and that he gave his evidence in chief, as instructed by Mahananda Reddy, who accompanied him. Even in the face of such admission from the mouth of PW.4, the prosecution did not request the Court to declare the witness as hostile. Thereby it is accepting the version of PW.4 in his cross-examination. That apart, even in the chief-examination, PW.4 has not named any of the accused specifically nor did he attribute any specific overt acts. It is a general statement that all the accused killed the deceased and all the accused beat PWs.8 and 9.
15. PW.5 is another eye-witness. He deposed that on the date of the incident at about 09.00 p.m., when he was going to the house of his sister Shankaramma and when he reached near the house of Pedda Jampanna, he noticed the accused murdering the deceased with axes, spears, hunting sickles and knives, and that he has also seen all the accused persons beating PWs.8 and 9. He further deposed that out of fear, he ran out to the house of his sister and was there through out the night. In the cross- examination, PW.5 said that nearly 10 to 15 persons attacked the deceased and out of the 15 assailants, he has identified only seven persons. According to PW.5, the assailants are A.1 to A.6 and 8 and that he has not seen A.7 and A.9 participating in the crime. He admitted that for the post of Sarpanch, he contested the elections along with A.6. As noticed earlier, A.6 won the said elections, defeating both PW.5 as well Mahananda Reddy.
16. PW.6 is the wife of the deceased. She also claims to be an eye-witness. She deposed that on the date of the murder of her husband, he left the house at about 08.30 or 09.00 p.m., to the house of Ranganna PW.7 to attend a family function, and PW.9 accompanied him. She further deposed that after her husband left the house, she, along with PW.1 and her father-in-law Narsappa were sitting in front of the house, they heard the cries from the side of the house of Jampanna and they rushed towards that side and have seen all the accused hacking the deceased with hunting sickles, and when PW.8 intervened, the accused also beat on the head and neck of PW.8, and beat PW.9. She further deposed that thereafter her father-in-law went to Police Station and lodged the complaint.
17. The witness admitted that previously A.5 was the President of the Weavers’ Society and in the subsequent elections, her relation Muneppa won the elections by defeating A.5, and in that election, all her family members supported Muneppa. In the cross-examination, it is elicited from her that at the time of incident, there was no light at the scene of offence. She further admitted that her father-in-law, who went to the police station to lodge the complaint, returned with the police in the jeep at about 10.30 p.m. This is not the case of the other witnesses or the Investigating Officer. Even though, in her previous statement before the police, she named ‘17’ persons as the assailants, she denied having stated so before the police. As in the case of other eye-witnesses, PW.6 is also not in a position to give any specific overt acts. She made an omnibus allegation that all the accused killed the deceased and also beat PWs.8 and 9. Her evidence with regard to the availability of the power supply at the relevant time is contrary to the claim of PWs.1, 2 and 4. According to PW.1, PWs.7 and 9 came at about 09.00 p.m., and took the deceased to have food outside. However, according to PW.6, the deceased went to the house of PW.7 to attend a family function.
18. PW.7 deposed that on the date of the incident, he invited the deceased and PW.9 to his house for dinner and after dinner, the deceased and PW.9 left his house at about 09.00 or 09.30 p.m., and within ten minutes thereafter, he heard commotion, and came out of the house and heard that the deceased has been killed by the accused, and out of fear, he went inside the house and closed the doors, and came out of it only the next morning. This conduct of PW.7 is unnatural. When the friendship between the deceased and PWs.9 and 7 was so close that he invited them for dinner and within ten minutes after having the dinner, he heard that the deceased has been killed, he can not be expected to hide himself inside his house, and go out of the house to see the dead body of the deceased only on the next morning. The version of PW.7 with regard to the deceased having dinner at about 09.00 or 09.30 p.m., and being killed within ten minutes thereafter is falsified from the medical evidence on record. According to PW.17 and the post- mortem report Ex.P.31, partially digested food was found in the stomach of the deceased. The doctor PW.17, who conducted the autopsy admits that it will take at least 5 to 6 hours for digestion of the food. Since the stomach contains partial digested food, the death would not have taken place within ten minutes after having dinner, as claimed by PW.7. According to the Doctor, the deceased might have taken food about two hours prior to his death.
19. PW.8 is the paternal uncle of the deceased. He is one of the injured persons. He deposed that on the date of the incident, he was at his house and at about 09.00 p.m., he heard the commotion and came out of his house armed with a stick. He said that he has seen all the accused murdering the deceased in front of the house of Jampanna with axes and hunting sickles. He further deposed that when he tried to rescue the deceased, the accused beat him on right temple region, right side of the neck, right side of the eye, and right leg with axes and hunting sickles. He further deposed that PW.9 also sustained injuries at the hands of the accused. In the cross-examination, it is admitted by him that he cannot say as to which accused was armed with which weapon and which of the accused beat him or the deceased. He also admitted that he did not try to use the stick, which he was carrying. According to him, the accused persons beat him with axes, sickles, spears and knives. The medical evidence on record does not substantiate the claim of PW.8. Ex.P.32 is the wound certificate and PW.18 is the Doctor who treated PW.8. The Medical Officer found injuries over skull and right upper limb, and these injuries were caused with an axe. According to PW.8, the accused beat him with axes and hunting sickles on right temple region, right side neck, right eye and right leg. Only two injuries were found on his person.
20. The other material witness of the prosecution is PW.9. He deposed that the deceased has been killed by five or six persons, but he does not know their names nor can he identify them as it was darkness around. He further deposed that himself and the deceased went to the house of PW.7 to take dinner, and thereafter they returned at about 09.00 p.m. He stated that the deceased was attacked by five or six persons and when he and PW.8 intervened, those persons also beat them. In the cross- examination, he admitted that the persons, who beat him, the deceased and PW.8, are strangers to him. It is evident that the testimony of the material witness PW.9 does not, in any way, help the prosecution. Even though, he gave such evidence, the same was accepted obviously because it was in accordance with the previous statement given to the police and no effort was made to treat PW.9 as hostile. The evidence of PW.9 negates the entire case of the prosecution since he categorically asserts that utter strangers have attacked them.
21. PW.10 is the son of PW.8. He deposed that the accused persons have killed the deceased, and that he noticed PW.9 sustaining injuries and the deceased lying dead on a mat. He further deposed that he shifted his father PW.8 to the hospital. In the cross-examination, curiously PW.10 admitted that he also sustained injuries in that attack and he was also referred by the police to the hospital, but, the Doctor did not examine him. Neither there is any medical evidence on record nor it is the case of the prosecution that PW.10 is one of the injured persons.
22. A perusal of the evidence of the material prosecution witnesses clearly shows that it is neither cogent, nor consistent, nor does lit inspire the confidence of the Court. There are material and vital discrepancies in their evidence. The medical evidence also does not support the ocular testimony. The evidence of one witness contradicts that of the other, on several aspects. None of the prosecution witnesses, who claimed to have witnessed the incident, have specifically named a particular person as having caused a particular injury. The only omnibus allegation is that all the accused standing in the dark, beat the deceased and the injured witnesses. As already stated, in the complaint Ex.P.36 and in the statements recorded by the Investigating Officer under Section 161 Cr.P.C., the eye-witnesses named as many as ‘17’ persons as the assailants. When it came to evidence, they did not attribute anything to the remaining eight persons, who have not been arrayed as accused.
23. It is further noticed from record that when the complaint was lodged at 10.30 p.m., the police were at the scene of offence even by 09.00 p.m. The complaint was registered subsequently. No satisfactory explanation is forthcoming from the prosecution as to why as many as eight accused named in the complaint have been excluded. There is material discrepancy with regard to the availability of the power supply. There are two versions coming forward. According to some prosecution witnesses, there was no power supply when the incident commenced, but however, it was restored when the attack was going on. The other version is that there was no electricity at all in the entire village on that night. The witnesses go to the extent of saying that they could not identify the assailants and attribute specific overt acts in view of the absence of light at the place where the incident took place.
24. As stated above, the specific contention of the accused is that in view of the disputes between Mahananda Reddy on the one hand and the accused on the other, they have been falsely implicated taking advantage of the unfortunate death of the deceased at the hands of the unknown persons. The prosecution witnesses have categorically named Mahananda Reddy as the person who accompanied them to the Court at the time of giving their evidence. PW.3 is the independent panch witness in whose presence the scene of offence panchanama, the inquest panchanama and seizure was effected. In the cross-examination, he admitted that the said Mahanandi Reddy was present when the panchanamas were prepared. He is not the witness to those documents. PW.3 admitted that the names of the assailants have been inserted in the inquest panchanama Ex.P.3 after consultations in between the police and Mahanandi Reddy.
25. According to the prosecution, the accused were arrested and they confessed having committed the crime and led to the recovery of the weapons M.Os.1, 6, 7, 8 and 9. The prove this aspect, the prosecution examined the persons who acted as panch witnesses. They are PWs.11, 12, 13, 14, 15 and 16. All these witnesses turned hostile and categorically stated that no confessions were made in their presence nor was there any recoveries. According to them, their signatures were obtained by the police on blank papers. The signatures of these witnesses were marked as Ex.P.4 to Ex.P.30. Though they admit their signatures, they do not vouch safe for the contents above it. Therefore, the prosecution could not establish the involvement of the accused on the basis of recovery of the incriminating weapons pursuant to the confession of the accused.
26. The cumulative effect of the foregoing discussion is that the prosecution miserably failed to establish its case against the accused much less beyond reasonable doubt. There is absolutely no evidence, which can be said to satisfy the requirements of proof required in a criminal trial. The trial Court has not appreciated these aspects in proper perspective and erroneously found the accused guilty on the basis of such a confession. The Judgment of the trial Court, therefore, cannot be sustained. The same is liable to be set aside.
27. In the result, the Criminal Appeal is allowed. The conviction and sentence ordered against the appellants/accused, in S.C.No.167 of 2006 on the file of III-Additional District & Sessions Judge (FTC), Gadwal, through Judgment, dated 23-03-2010, are set aside. The appellants shall be set at liberty forthwith, unless their detention is needed with reference to any other crime. The fine amount, if any, paid by the appellants shall be refunded to him.
L.Narasimha Reddy,J.
M.S.K. Jaiswal,J.
Dt.29.04.2014
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HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeal No.593 of 2010 (Judgment of the Division Bench delivered by Hon’ble Sri Justice M.S.K.Jaiswal) Dated: 29.04.2014
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