Shabad
Pulla Reddy & Ors Vs. State of Andhra Pradesh [1997] INSC 671 (20 August
1997)
M.K.
MUKHERJEE, S. SAGHIR AHMAD
ACT:
HEADNOTE:
THE
20TH DAY OF AUGUST,1997 Present:
Hon'ble
Mr.Justive M.K.Mukherjee Hon'ble Mr.Justive S.Saghir Ahmad D. Prakash Reddy and
G. Narasimhulu, Advs. for the appellants.
G. Prabhakar,
Adv. for the Respondent
The
following Judgment of the Court was delivered:
M.K.MUKHERJEE,
J.
Leave
granted.
2. In
Sessions Case No. 48 of 1983 on the file of the Session Judge, Warangal 26
persons were initally placed on trial to anser charges under SEctions 120-B,
148, 449, 452, 460 and 302 I.P.C. An alternative charge under Section 396
I.P.C. was also framed against them. During pendency of the trial A-12 and A-14
died while A-13 and A-25 absconded.
Hence,
the trial continued against the other twenty two. On conclusion thereof the
learned Judge acquitted A-1 of all the charges and convicted the others as
under:
i) A-2
to A-11, A-15, A-23, A-24, and A-26 under Section 120-B I.P.C;
ii)
A-8, A-15 to A-22, A-24 and A-26 under Section 148 I.P.C;
iii)
A-15 to A-22 under Section 449 I.P.C;
iv)
A-22 under Section 302 I.P.C. (simpliciter);
v)
A-8, A-15 to A-21, A-24 and A-26 under Section 302/149 I.P.C. and vi) A-2 to
A-7, A-9to A-11 and A-23 under Section 302/109 I.P.C.
For
the convictions so recorded they were sentenced to different terms of
imprisonment with a direction that the sentences shall run concurrently.
3.
Against their convictions and sentences they preferred separate appeals in the
High Court. In disposing of the appeals by a common judgment the High Court set
aside the convictions of A-2 to A-11, A-15, A-16, A-23 and A-24 but confirmedthose
of A-17 to A-22. As regards A-26, his conviction under Section 120- B I.P.C.
was set aside but that under Section 302/149 I.P.C. maintained. Assailing the
above judgment of the High Court A-17 to A-22 and A-26 have filed these appeals
which have been heard together and this judgment will dispose of them.
4. The
prosecutioon case, to the extent it is necessary to be reproduced and is
relevant for disposal of these appeals [now that the charge of conspiracy has
failed and some of the accused have been acquitted], is as follows:- (a) A-2 is
the son of A-1, A-4 is the son-in-law of A-3, A-3 and A-24 are brothers. A-7 is
the son of A-24, A-1 to A- 8 and A-25 are the residents of Upparigudem village.
A-10 and A-11, who are brothers, are residents of Moduguladudem.
A-15
to A-23 are residents of different villages. nookala Managamma (P.W.11), an ssueless
widow, adopted the deceased Nookala Narayan Reddy. The deceased also did not
beget any children and, therefore, he adopted Nookala Ranjith Reddy (P.W.1) as
his son. Smt. Rangamma, mothr-in-law of P.W.11, had adopted A-1, son of her
elder sister. The families of Rangamma and Mangamma possessed considerable
properties in or around Upparigudem. Over the adoptions there were misuderstandings
between the above two families which led to disputes regarding their
properties. Later on the disputes were referred to arbitration and the
arbitrators decided that P.W.11 and the deceased should take 9/16th share and Rangamma
and A-1 should take 7/6th share. In spite of teh award, the disputes and
differences continued and two factions were created: one led by the deceased
and the other by A-1. To strengthen his faction A-1 brought A-24, a resident of
Bojjannapeta village, to his village after his release from a murder case and
appointed him as his Seradar.
A-26,
who was originally a resident of Gudur, was also brought by A-1 as his farm
servant.
(b) In
the night of July 10,
1981, A-12 and two
strangers came to te house of A-24 and slept there. On the following morning
i.e. on July 11, 1981, all three of them went to the sapota
garden of A-24, A-2 to A-5, A-7, A-15, A-23, A-24 and A-26 also came and
joined in the talks with A-12. At or about mid day A-24 asked Mathian (P.W.8),
his farm servant, to bring lunch and he obliged. In the afternoon A-23 asked
P.W.8 to bring two axes and 10 cart pegs. Accordingly P.W.8 brought them. Th
A-12 asked P.W.8 to fo towards 'Sankeesa Bata' saying that six persons would
come and asked him to bring them. Accordingly, P.W.8 went to sankeesa bata, saw
pwesons coming and brought them to sapota garden. They all proceeded towards
the house of the deceased. At that time the decased, his son P.W.1, his
domestic servant-cum-cook Cenkatiah (P.W.2), Kishtiah (P.W.5), another farm
servant, and P.W.11 were there. At or about 8.00 P.M.P.W.2 told them that
dinner was ready and asked them to get up. P.W.5 then got up to go back to his
house and opened the main entrance door only to find some persons there.
Suspecting foulplay P.W.5 went out of the room through the door-way on the
south and having closed it looked through the peepholes.
He saw
A-15, A-17 and A-22 entering he bed room of the deceased, and then dragging
him. They then snatched away the gun (M.O.1) from underneath te bed of the
deceased and one of them aimed the gun at the decased and asked him where be
had kept gold and other valuables. One of the miscreants then broke open the
wooden box and all papers were thrown pell-mell. Then P.W.1, who was in the
other room, saw the deceased beling dragged into the bed room of P.W.1, A-15,
A- 17 and A-22 then opened the wooden box and took away 19 cartridges and cash terefrom
and also two ear rings, gold chain and bangles from P.W.11. Meanshile, A-18 to
A-21 also joined A-15, A-17 and A-22. When P.Ws. 2 and 11 pleaded to leave the
deceased, they were pushed in the bed room of p.W.1 and bolted from outside.
The miscreants then brought the deceased out and axed him to death. Afterwards
they left the place raising singans.
(c) In
the early morning of July
12, 1981 P.W.1 went to
Seerole Police Station and gave a report of the incident (Ext. P-12) to the Sub
Inspector Ramesh Babu (P.W.28) who registered a case thereupon. P.W. 28 gave an
information about the incident to Sri Murthy (P.W.31), Inspector of Police, and
bothe of them reached the scene of occurrence.
P.W.31
held inquest over the dead body and sent it for post mortem examination. Dr.
Reddy (P.W.17) conducted autopsy and found 7 external injuries and out of them
injuries 1 to 6 were over the head and other vital parts of the body. He opined
that the death was due to shock and haemorrhage as a result of mutiple
injuries.
(d) In
course of investigation Sri Inniah (P.W.28), Sub- Inspector of Police, Khammam
arrested A-26 at Yudlapuram.
From
his possession two cartridges (M.O.15) were recovered and they were seized
under Ext. P-47. P.W.29 sent a requisition to Sri Krishnaiah (P.W.16), Judicial
Magistrate of Madhira to recrd the confessional statement of A-26.
Accordingly
A-26 was produced before P.W.16 and after giving necessary warnings and putting
necessary questions, he recorded the confessional staement of A-26 (Ext. P-34).
After
receiving the message about the arrest of A-26 and making of his confessional statemnt
P.W.31 went to Khamma and obtained a copy of the confession. On the basis of
the details mentioned therein, he proceeded with the investigation. Sri Reddy
(P.W.30) the Inspector of Police, Khammam arrested A-22 on September 13, 1981 and seized the gun (M.O.1) and 12
cartridges under Ext. P-46. On October 4, 1981
P.W. 31 arrested A-17, A-18, A-19, A-20 and A-21.
From
A-17 he seized gold chain (M.O.5), from A-18 a pair of gold bangles (M.O.6),
from A-19 a torch light (m.O.8), from A-20 a gold ring (M.O.3) and from A-21 a
pair of gold ear flowers (M.O.7). After their arrest P.W.31 gave a requisition
to Sro Lachiah (P.W.6) Judicial Magistrate, Narasampet to conduct test identification
parade of A-15 to A-21. Accordingly P.W.6 conducted a test identification
parade on 4.1.1982 in which P.W.1 identified A-17 to A-21 and P.W.2 identified
A-18, A-20 and A-21,P.W.31 gave a similar requisition for A-16 and A-22 and in
the second parade held on january 12, 1982
P.W.1 and P.W.10 identified A-22. After completion of the investigation P.W.31
laid the charge sheet on June
14, 1982.
5.
When examined under Section 313 Cr.P.C. the accused persons pleaded not guilty
to the charges levlled against them. So far as the appellants before us ae
concerned, the specific defence of A-17 to A-21 was that they were taken into
custody much earlier than on October 4, 1981 as claimed by the police and that
their photographs were taken and shown to the identifying witnesses. A-22
stated that he was taken from his house at kaikondagudem and shown to the
identifying witnesses. A-26 stated that three days prior to the alleged
incident he had gone to Ch9innakodur village to see his alling mother and there
the police arrested him They took him in a jeep fist to the outskirts of the
village and then to Mahabubabad. There the Inspector of Police and
Sub-Inspector of Police beat him and coerced him to confess, and for three days
continuously he was beaten. On the fourth day he was shifted to Dornakal nd
there he was again beaten by the Inspector of police and the Inspector of
Police pressurised him to make a statement regarding the offence. He was
confined illegally at the Police Station, Dornakal for about six or seven days
and later he was again shifted to Mahabubabd and he was pressurised to make a
statement before the Magistrate as directed by the police.
He was
threatened that he would be shot dead if he did not make a statement as wanted
by the police.
6. The
prosecution examined in all 31 witnesses of whom P.Ws. 1,2, 5 and 11 figured as
eye witnesses. Both the trial Court and the High Court discussed the evidence
of these witnesses at length and found that their evidence so far as it related
to the manner in which the incident took place was satisfactory and safely
reliable. Since the F.I.R. promptly lodged by P.W.1 also contained the
substratum of the prosecution case and the medical evidence corroborated the
version of the eye witnesses, the Courts below concluded that the incident took
place in the manner alleged by the prosecution. We do not find any reason
therefore to disturb the above findings. Incidentally it may be mentioned that
the learned counsel for the appellants ad not assail the above findings.
7.
That brings us to the crucial question as to whether the prosecution has been
able to conclusively prove the involvement of the appellants in the above
offences of rioting and murder. To connect A-17 to A-22 with the crimes, the
prosecution relied upon the evidence of their identification in Court by the
witnesses and the corroborative evidence of their earlier identification in two
test identification (T.I.) parades held on January 4, 1982 and January 12, 1982 by a Judicial Magistrate (P.W.6).
The
evidence of P.Ws 1 and 2 along with that of P.W.6, proves that in the T.I.
parades P.W.1 identified A-17, A-19 and A-21 and P.W.2 identified A-18, A-20and
A-21.
In
other words, A-17 and A-19 stand identified by one witness, namely, P.W.1 and
A-20 and A-21 by both the one witness, namely, P.W.1 and A-20 and A-21 by both
the witnesses, namely, P.Ws 1 and 2. Though the trial Court and the High Court
accepted the evidence of such identification of Court and the High Court
accepted the evidence of such identification in Court as it was corroborated by
the evidence of their identification in T.I. parade, we find it difficult to
rely upon the same as no explanation - much less plausible - was offered by the
prosecution for the nordinate delay in holding the T.I. parades. As earlier
noticed, the occurence took place on July 11, 1981 and five of the above six
accused persons (A-17 to A-21) were arrested on Otober 4, 1981 and the T.I
parades were held 3 months after their arrest. This unsual and unexplained
delay in holding that after such long lapse of time the witnesses were still
able to have a clear image of the accused in their minds and identify them
correctly at the identification parades. So far as A-22 is concerned, he was
arrested earlier - (on September
3, 1981) - and was
identified in the T.I. parade by P.W.1 as one of the miscreants. He was also identifie
by Papaiah (P.W.10), who claimed to have seen him earlier in the day in
question, going across the field armed with an axe. For the reasons earlier
mentioned, we are also unable to accept the identification of A-22 by P.Ws. 1
and 10. The other evidence on which the prosecution relied upon - and both the
learned Courts acceped to convict A-17 to A-21 - is the alleged recovery of
gold chain (M.O.5), a pair of gold bangles (M.O.6), a torch light (M.O.8), a
gold ring (M.O.3) and a pair of gold ear-flowers (M.O.7) from them
respectively, on October 4, 1981 when all of them were arrested. According to
the prosecution all those articles either belonged to the deceased or to the
members of his family. In our considered view, the evidence of recovery is too
artificial to be believed. It seems strange that even after three months of the
incident all of them were carrying a stolen article each 0 including a torch
light. If really they had stolen article each - including a torch light. If
really they ad stolen such articles, at the time of the murder, it wasexpected
in the fitness of things that they would dispose of them as early as possible -
more so when the nature of articles was such that they could pass hands quicky.
This apart, even if we proceed o the assumption that evidence regarding the
identification of the articles and recovery thereof is acceptable, still then,
no presumption can be drawn after such a long lapse of time that they were
party to the murder itself. The most favourable conclusion that can be drawn
for the prosecution from such recovery is that they dishonestly retained the
stolen roperties knowing them to be stolen but in absence of any charge framed
under Section 411 I.P.C. and on their acquittal of the charge under Section 396
I.P.C., no order of conviction can be recorded against them. So far as A-22 is
concerned, the allegation is that the gun belonging to the deceased along with
cartridges was recovered from his possession, but then the only reliable
evidence in support thereof is that those arms and ammunition were recovered
from an open shed belonging to P.W.9 and not from him. It cannot, therefore, be
said that the prosecution has been able to conclusively prove its case against
A-22, Lastly, coming to A-26, we find that the prosecution relied upon his
retracted judicial confession and some other evidence in corroboration thereof.
On carefully going through the confessional statement we find tht A-26
confessed about a conspiracy to commit the murder of the decased, but did not
at all confess that he was a party to the murder. In other words, so far as the
incident that took place in the night of July 11, 1981 in which the decased met with his
death, the statement made by A-26 before the Magistrate is exculpatory. One the
confession made by A-26 is left out of consideration - as it must be in view of
the acquittal of the charge under Section 120-B I.P.C. - there is no other
substantive evidene to connect him with the offences in question. Incidentally
it may be mentioned him with the offences in question. Incidentally it may be
mentioned that though, admittedly, A-26 was a resident of the same village and
was known to P.W.1 from long, he did not name him as one of the miscreants nor
mention his name in the F.I.R.
8. For
the foregoing discussion, we allow these appeals, set aside the order of
convictions and sentences recorded against the appellants and acquit them. The
appellants, who are on bail are discharged from their respective ball bonds.
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