Akula Veera Venkata
Surya Prakash @ Babi Vs. Public Prosecutor,High Court of A.P.  INSC 885
(5 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 951 OF 2001 Akula
Veera Venkata Surya Prakash @ Babi ....Appellant Versus Public Prosecutor, High
Court of A.P. ....Respondents
DR. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Andhra Pradesh
High Court partly allowing the appeal filed by the State and setting aside the
acquittal so far as the present appellant is concerned while upholding the
acquittal in respect of rest of the accused persons.
to A-9 were tried for the offences under section 120B, 148, 149, 324, 307 &
302 of Indian Penal Code, 1860 (in short the `IPC') for having caused the death
of one Abbai Reddy and injuries to Yedukondalu (P.W.1) and Mohammed Basha
(P.W.2). The trial Court acquitted all the accused on 12.7.1999. State
preferred appeal before the High Court. The Appeal was allowed in respect of
A-1 alone and he was convicted for offence under Section 302 IPC and sentenced
to suffer imprisonment for life. The appeal in respect of A2 to A-9 was
dismissed. Challenging the same, Criminal Appeal has been preferred by A-1.
version in nutshell is as follows:
On 4.11.1993 at about
7.00 P.M. Abbai Reddy (hereinafter referred to as the `deceased') and
Yedukondalu (P.W.1) came in the car driven by P.W.2 Basha. While coming to the
turning near to the house of the deceased, the accused persons Al to A8 stopped
the car and broke the front glass of the car. Then they broke open the doors of
the car. All the accused persons attacked the deceased Abbai Reddy with knives.
Some accused attacked P.W.1 also, P.W.1 and PW-2 managed to escape after
receiving injuries. P.W.3 to 6 are the close relative of the deceased. Abbai
Reddy on hearing the cries came out of the house and saw these accused running
away from the scene after attacking the deceased.
P.W.1 made a
telephonic call to P.W.22 S.I. of Police and informed about the incident.
P.W.22 after giving information to higher official came to the scene of offence
along with P.W. 15 the professional photographer. He took photograph of the
victim deceased, car and the scene of offence. Then the deceased and P.W.1 were
taken to the hospital. There the Doctor (not examined) declared Abbai Reddy
dead. PW-1 was examined by PW-16 Doctor on 4.11.1993 at 9.00 p.m. The PW-16
doctor issued Ex.P53 wound certificate. Thereafter, PW-22, S.I. Police obtained
the statement Ex.P1 from PW-1 at 9.30 p.m. and registered the case at about
10.00 p.m. under Section 302 IPC and other offences. PW-23 the Inspector of
Police took up the investigation and conducted the inquest on 5.11.1993. PW-17
conducted autopsy and issued post mortem certificate Ex.P54.
P.W.23 Inspector of
Police continued the investigation and arrested the accused. During the course
of investigation Identification parade was conducted by P.W19 Magistrate, P.W.1
identified A1, A2 and A4. P.W.2 identified A4 alone. After completing the
investigation P.W.23 filed the charge sheet.
P.W. 1 to 23 were
examined on behalf of the prosecution. Ex.P-1 to P-94 marked. D.W.1 was examined
on behalf of accused. Ex.D-1 to D4 were marked.
Al is the son of A9,
A2 is the clerk under A-9, A3 to A5 are close friends of Al, A6 to A8 are
friends of A2, A9 is A l's father. There was a Quarry Business rivalry between
A9 on the one hand and deceased Abbai Reddy on the other hand. The land
belonging to one Haribabu was put to sale.
Both A9 as well as
deceased were trying to purchase the same, and ultimately deceased Abbai Reddy
purchased the land at higher price. Due to this there used to be frequent
quarrels between A9 and deceased. P.W.1 Yedukondalu is business partner of
deceased. P.W.2 Basha is the driver.
P.W.3 is the elder
brother, P.W.4 is the friend, P.W.5 is the brother-in-law and P.W.6 is the wife
of the deceased Abbai Reddy.
The trial Court
disbelieved the case of the prosecution and acquitted all the accused. However,
the High Court in the appeal filed by the State set aside the order of
acquittal in respect of Al and convicted him for offence under Section 302 IPC
and confirmed the acquittal in respect of other accused.
is relevant to take note of the grounds on which the High Court sustained
acquittal of A2 to A9. According to the prosecution the occurrence had taken place
near to the house of the deceased from where P.W.3 to 6 had witnessed the
occurrence. The evidence of PW.3 to 6 is not reliable because P.W.3 to 6 could
not have seen the occurrence from the deceased house as the scene of offence
has been purposely shifted from the actual scene of offence to a place near to
the market yard from the place near to the house of deceased in order to plant
P.W.3 to 6 as eye witnesses. The evidence of P.W.15 Photographer who had
photographed the actual scene of offence would show that the scene of offence
is a place opposite to the market yard which is far away from the house of
the reasons which weighted with the High Court to set aside acquittal of A1
need to be noted. Since P.W.1 has given the names of Al in Ex.P.1 FIR and he is
an injured witness, his evidence alone is believed to convict A-1 for Section
counsel for the appellant submitted that the High Court disbelieved the
evidence of P.W.3 to 6 mainly on the basis of the evidence of P.W.15. If the
finding given by the High Court in the light of the evidence of P.W.15
Photographer that P.W.3 to 6 is unreliable, would falsify the entire
prosecution case. As such P.W.1 also cannot be believed also.
specific findings of the High Court are as follows :
(1) The exact scene
of offence is in front of market yard which is far away from the house of
deceased and not the place near to the house of the deceased.
(2) P.W.15 has taken
the photograph of the dead body inside the Car. So deceased must have been
attacked and murdered inside the car itself.
(3) Scene of offence
is purposely shifted from the Market yard to place near to the house of
deceased in order to plant P.W.3 to 6 relatives of the deceased as
eyewitnesses. Since the scene of offence is different place, P.W.3 to P.W.6
could not have seen the occurrence. So they are unreliable.
Special Leave Petition filed against acquittal of A2 to A9 by the State has
been dismissed on 16.9.2002. So this finding has become final. As such the
finding of the High Court as well as evidence of P.W.15 Photographer on the
basis of which the said finding was given would completely falsify the case of
prosecution. So P.W.1 also cannot be believed.
this effect, the following finding has been given by the trial Court.
Syamalarao, Photographer and his evidence shows that on 4.11.1993 he took
photos in connection with the death of deceased Abhai Reddy at Korukonda road.
In this Chief examination he stated the exact place is opposite to market yard
and it was done in the evening time. He took Exs. P.to 34 photos and Exs. P.35
to 52 are its negatives. He further says that he took the photos on the dead
body of the deceased and the car. In the cross examination he says that he took
more than 20 photos in the crime and also stated the police have shifted the
position of the dead body of the deceased so as to suit better appreciation.
But the photograph was taken while the dead body was inside the car".
counsel for the respondent supported the judgment of the High Court. Analysis
of the evidence in the background of conclusions of the High Court would reveal
following aspects. According to P.W.1 both in the FIR and evidence, the car was
stopped near to the house of deceased and then car glasses were broken and both
deceased and P.W.1 were attacked inside the car and thereafter the deceased was
dragged out of the car, again attacked and pushed him on the ground. If
P.W.15's evidence to the effect that scene of offence is different and dead
body was found inside the car is accepted, the evidence of P.W.1 to the effect
the occurrence took place near to the deceased house and deceased was dragged
out of the car and again attacked and he fell down on the ground and thereafter
the deceased was taken to hospital is false. As a matter of fact P.W.5 and PW-6
who are eyewitness to the occurrence had stated that Abbai Reddy died on the
would state he had taken photograph of dead body.
to the evidence of PW.1, in Ex.P.1, he had stated that when the car was
reaching the house of deceased, A-1 was following the car in the scooter, but
in evidence he had stated that Al was standing there at Ramakrishna Mission and
Al and others stopped the car.
Though in Ex.P.1,
P.W.1 stated that all the eight accused attacked the deceased, in evidence
P.W.1 had given special role to A-1 stating that A-1 first attacked the
deceased and 5 other accused thereafter attacked the deceased. According to
P.W.15, P.W.5 & P.W. 6 Abbai Reddy died on the spot. In Ex.P.1 there is no
reference about the death of deceased. In evidence P.W.1 and P.22 would state
that the deceased was taken to hospital for treatment. This is false especially
as P.W. 1 gave telephonic information about the murder of Abbai Reddy. P.W.1 in
his evidence stated that he had given all the names of accused in Ex.P-1
Complaint. This is not correct because he had mentioned only A-1 and 8 others.
P.W.22 also stated that P.W.1 did not give all the names. P.W.1 did not choose
to give the statement immediately when P.W.22 reached the scene. P.W.22 also
did not care to take statement from P.W.1. Even though P.W.22 came to scene at
8.00 P.M, along with photographer, the complaint was registered at only 10.00
P.M. after shifting the deceased from the scene of offence. The reason appears
to be that at that time Police was not able to fix the identity of person who
had attacked. That is the reason why no names have been given in Ex.P.1 except
PW-1 gave telephone
information stating that the deceased was murdered. PW-22 confirms the
information. But PW-1 says he has not given any such information.
are various other infirmities. There is no reason as to why the damaged car was
not seized. P.W.23 admits that in spite of instruction to S.I. Police the same
was not seized. P.W.23 Inspector of Police admits that blood stain found in the
car was not scrapped and sent for the chemical experts. No reason is given for
the same. Though it is claimed that the blood stained earth and sample has been
taken from the new scene of offence, Ex.P.94 shows it did not contain blood, it
was soil and ash. If the deceased was lying unconsciously, there is no reason
as to why photographer was asked to take photograph. There is no reason as to
why P.22 did not get the complaint from P.W.1 before taking deceased to
hospital. P.W.1 identified Al, A2 and A4 in the Identification Parade before
P.W.19 Magistrate, but P.W.2 identified only A4.
inevitable conclusion is that the appeal deserves to be allowed which we
direct. The bail bonds executed to give effect to the order of bail passed by
this Court on 29.11.2001 shall stand discharged.
(Dr. ARIJIT PASAYAT)
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