HON'BLE SRI JUSTICE G.CHANDRAIAH
&
HON’BLE SRI JUSTICE M.S.K. JAISWAL Crl.A. No. 1116 of 2014
DATE: 10.11.2014
Between:-
State of A.P. .. Appellant and
1. Thammineni Raja Gopal Naidu (A5)
2. Rupuneni Nageswara Rao (A6) .. Respondents-
accused
JUDGMENT:- (per Hon’ble Sri Justice G. Chandraiah)
The State has preferred this Criminal Appeal against the Common Judgment dated 17.12.2012 delivered in Sessions Case No. 446 of 2006 on the file of III Additional Sessions Judge (F.T.C.), Anantapur whereby the respondents herein, who are A5 and A6, were acquitted of the offences punishable under Sections 148, 341, 302 read with 149 IPC, 324 read with 149 IPC and Sections 3 and 5 read with Section 6 of Explosive Substances Act.
The case of the prosecution in brief is as follows:
A1 to A11 are residents of Yadiki village. A2, A5 to A7, A10 and A11 are relatives of A1. A3, A4 and A8 are brothers and A9 is relative of A3. One Bala Satish Babu (deceased), who was also resident of Yadiki village and M.P.P. President of Yadiki Mandal, was a prominent leader in the village and belongs to Congress I party, whereas A1 is his opponent belonging to Telugu Desam Party of Yadiki Mandal. A2 to A11 are the followers and staunch supporters of A1. The father of A1 contested as member in Z.P.T.C. Elections held on 15.07.2001 and was defeated by the deceased, therefore, A1 bore grudge against the deceased. While so, on 12.08.2001, the deceased along with his followers LWs.1 to 9 proceeded to Anatapur from Yadiki village by Tata Sumo and met the officials and political leaders for change of polling booth centres in the coming Gram Panchayat Elections. On their way back to Yadiki village, when their vehicle reached near Electric Sub-Station after crossing Rotarypuram village, all the accused who were travelling by a white colour Tata Sumo, took over their vehicle and stopped in front of it by wrongfully restraining them. The accused in furtherance of their common intention formed themselves into an unlawful assembly armed with deadly weapons such as hunting sickles. A2, who was in possession of country made bombs, hurled two bombs which fell on the road and blasted, as a result, LW2 sustained splinter injuries on left forearm, right thigh, left thigh and right auricle. When the accused dragged the deceased from the vehicle, A1 hacked him on his head and neck with a hunting sickle, A3 hacked him on his head and hands with hunting sickle and the other accused hacked him indiscriminately with hunting sickles, as a result, the deceased died instantaneously. A4 hacked LW9 on his left thigh with hunting sickle with an intention to kill him, but LW9 escaped by running away. On information, the Head Constable registered a case in Crime No. 105 of 2001 against all the accused for the offences punishable under Sections 302, 342 read with 34 IPC and under Sections 3 and 5 of Explosive Substances Act. The Circle Inspector, Itikalapalli Circle reached the spot, held inquest over the dead body of the deceased, seized blood stained clothes, blood stained earth, control earth, thread pieces and a bag, took photographs of the scene of offence and sent the dead body of the deceased for postmortem examination. On 22.08.2001, at about 03:00 p.m., he arrested A1, A2, A4 to A7, seized their unregistered Tata Sumo vehicle and hunting sickles, and on 09.09.2001, he arrested A3, A8 to A11 and seized blood stained sickles in the presence of the mediators under cover of panchanama and sent them to judicial remand and after completing the investigation filed charge sheet.
The trial Court framed charges under Sections 147, 148 and 341 IPC against A1 to A11, 302 IPC against A1 to A3, 302 read with 149 IPC against A4 to A11, 324 IPC against A2 and A4, Section 324 read with 149 IPC against A1 to A11, Sections 3 and 5 of Explosive Substances Act against A2 and Sections 3 and 5 read with Section 6 of the Explosive Substances Act against A1 and A3 to A11. Again, on 06.12.2006, additional charge under Section 25 of the Arms Act was framed against the accused and when the contents of the above charges were explained to them in Telugu, they pleaded not guilty and claimed to be tried.
Originally, eleven (11) accused were charge-
sheeted for the offences punishable under Sections 147, 148, 341, 302, 307 read with 149 IPC and Section 25(1-B) (b) of the Arms Act, 1959 in S.C.No. 560 of 2002. Case against A1, A3, A8 and A9 was split up from the main S.C.No. 560 of 2002 and numbered as S.C.No. 416 of 2006 and case against A5 and A6 was split up from the main S.C.No. 560 of 2002 and numbered as S.C.No. 446 of 2006 and case against A1 and A3 was further separated from S.C.No.416 of 2006 and numbered as S.C.No.590 of 2010.
Sessions Case Nos.446 and 416 of 2006 were clubbed together and in order to substantiate the charges leveled against A5, A6, A8 and A9, the prosecution examined PWs.1 to 11 and got marked Exs.P1 to P19 and M.Os.1 to 17. On behalf of the accused, no witness was examined and Exs.D1 to D4 were marked.
After closure of the prosecution evidence, A5, A6, A8 and A9 were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. They denied the same.
The trial Court, after considering the evidence on record, framed the following point for consideration:
1) Whether A5, A6, A8 and A9 participated and committed the offence punishable under Sections 148, 341, 302, 324 read with 149 IPC and Sections 3 and 5 read with Section 6 of Explosive Substances Act and Section 25(1B)(b) of Arms Act as alleged by the prosecution and whether the prosecution proved its case beyond reasonable doubt?
Based on the evidence on record, the trial Court, by Common Judgment dated 17.02.2012 in Sessions Case Nos.446 and 416 of 2006, found A5, A6, A8 and A9 not guilty of the offences punishable under Sections 148, 341, 302 read with 149 IPC, 324 read with 149 IPC and Sections 3 and 5 read with Section 6 of Explosive Substances Act, and acquitted them. Challenging the acquittal of A5 and A6 in Sessions Case No.446 of 2006, the State has preferred the present appeal.
The learned Additional Public Prosecutor appearing for the appellant – State has contended the learned Judge failed to examine the ingredients which constitute the offences punishable under Sections 147, 148, 341, 302, 302 read with 149 IPC against A5 and A6 and he has also erred in discarding the evidence of PWs.3 to 5 on the ground that they are interested witnesses as they are relatives of the deceased.
Now, the point for determination by this Court is:
1) Whether the prosecution proved its case beyond reasonable doubt against A5 and A6 of the charged offences, and if so, whether the judgment of the trial Court requires any interference?
POINT:-
It is brought to the notice of this Court that the trial Court, vide judgment dated 23.04.2007 in S.C.No. 560 of 2002, convicted A2, A4, A7, A10 and A11 of the charged offences, against which, they preferred Crl.A.No.632 of 2007, and this Court, by judgment dated 12.11.2010, while confirming the sentence and conviction imposed on A2, acquitted A4, A7, A10 and A11 of the offences with which they stood charged and a copy of the judgment is placed on record. It is also submitted that Sessions Case No.590 of 2010 which is filed against A1 and A3 is pending adjudication before the trial Court.
So far as the contention put forth by the learned Additional Public Prosecutor is concerned, this Court feels it necessary to scrutinize the evidence of the prosecution witnesses particularly that of PWs.2 to 5.
The core evidence of PW2 is that A5 to A11 hacked the deceased indiscriminately with their hunting sickles. PW3 while corroborating the evidence of PWs.1 and 2 in all material particulars, did not state anything about the presence of A5 and A6 at the time of the incident and again he stated that they were present but does not know whether the police recorded the same or not. No specific overt acts are attributed to PWs.3 and 4 against A5 and A6 and they simply stated that A5 to A11 hacked the deceased indiscriminately. In the cross-examination of PW4, he deposed that he has not seen A5 to A11 at any point of time. PW5 in his evidence stated that A5, A7, A6 and other assailants with their respective hunting sickles hacked indiscriminately over the body of the deceased.
Further, in the judgment dated 12.11.2010 delivered by this Court in Crl.A.No.632 of 2007, it is held as follows:
“PW3 stated that A5 is the sister’s husband of A1. A6 is the real brother of A1’s father. He knows A5 to A7 since his childhood, but their names have not been included in Ex.P1 and the role played by them is stated.
…………………………… In view of the above discussion, it is held that the participation of A4 to A11 has not been fully established at the earliest point of time. PW1, who had admitted in his evidence that he knows the names of some of the accused, did not name their persons and also their participation. In view of the same, it is not unreasonable to apply the overt act test in scrutinizing the evidence of the prosecution witnesses.”
From the material available on record, it is to be noticed that there are several discrepancies regarding the seizure of hunting sickles, arrest of A1 to A11 and also explosion of bombs at the scene of offence. Further, PWs.1 to 4 failed to speak anything about the presence of A5, A6, A8 and A9 at the scene of offence in their statements recorded under Section 161 Cr.P.C. nor does Ex.P1 - report discloses anything about their presence and PWs.3 and 4 are only planted witnesses and they were not at all present at the scene of offence at the time of the incident, but they were present in Yadiki village at 06:30 p.m. and raided and looted the houses of A6 and others, as such, cases were registered against them in Yadiki police station, and subsequently, their names were deleted and they are only planted witnesses in the present case, hence the evidence of PWs.1, 3 and 4 cannot be relied upon. Even Ex.P1 – report, which is the crucial document, does not whisper anything about either the names of PWs.3 to 5 or their accusations against A5 and A6.
Moreover, it is to be seen that the evidence of PWs.2 to 5 is not conspicuous as to the manner in which and by whom the deceased was hacked and what nature of injury was inflicted on the deceased and on which part it was inflicted by A5 and A6 and the indiscriminate nature of inflicting injuries by A5 and A6 is not amply spoken by them, as such, there is any amount of discrepancy in their evidence. The participation of A5 and A6 in the commission of offence has not been proved beyond reasonable doubt because there is no clinching evidence particularly that of PWs.3 to 5 against A5 and A6, as such, the omnibus allegations made against A5 and A6 cannot form basis to convict A5 and A6, the respondents herein.
From the above analysis, it can be safely concluded that the contention put forth by the learned Additional Public Prosecutor cannot be sustained and the findings recorded by the trial Court in the Common Judgment dated 17.02.2012 in Sessions Case No.446 of 2006 on the file of III Additional Sessions Judge (F.T.C.), Ananthapur are perfectly justified and do not warrant any interference by this Court.
Hence, this Criminal Appeal is devoid of merits and dismissed. It is needless to mention that any of the observations made in this appeal shall not have any effect on the case in S.C.No. 590 of 2010 which is pending adjudication before the trial Court.
G. CHANDRAIAH, J 10.11.2014 M.S.K. JAISWAL, J bcj