THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
AND
THE HONOURABLE Dr. JUSTICE D.NAGARJUN
CRl.A.No.62 of 2014
JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)
This Criminal Appeal is filed against the Judgment of the
trial Court in S.C.No.202 of 2012 dated 06.12.2013. The Circle
Inspector in Toopran filed charge sheet against A.1 to A.7 under
sections 147, 148, 364, 302, 307 and 109 r/w 149 IPC.
2. The trial Court examined P.W.1 to 23 and marked Exs.P1
to P43 on behalf of the prosecution and M.Os.1 to 18 are
marked. Defendants did not adduce any evidence. The trial
Court considering evidence on record and after hearing
arguments of both sides and also citations filed by them
concluded that accused A.1, A.4 to A.7 are acquitted for the
offences under Section 147, 148, 302, 307, 109 r/w 149 IPC.
But, convicted accused No.2 for the offence under Section 302
IPC under Section 235(2) Cr.P.C and sentenced to undergo life
imprisonment and also to pay a fine of Rs.1000/- in default,
simple imprisonment for two months and he is also sentenced
to set off for the remand period under Section 428 Cr.P.C.
Aggrieved by the said Judgment accused No.2 preferred an
appeal and mainly contended that though number of witnesses
have been examined on behalf of the prosecution, nothing is
stated by them indicating the accused with the alleged charge
and absolutely there is no legal evidence on record to conviction.
The evidence adduced by the prosecution is wholly insufficient,
there are discrepancies in the evidence of the witnesses on
material particulars and all the material witnesses turned
hostile. There are no eye witnesses to the occurrence and the
case is based on the circumstantial evidence, even the motive is
not proved by the prosecution. As the trial Court acquitted other
accused for the same evidence, erred in convicting the accused
No.2. The evidence of P.W.5 is not helpful to prove the identity
of the accused and their participation in the commission of
offence as the photographs were shown to them prior to the
identification even the evidence of P.W.8 is not sufficient to
testify against him. P.W.1 clearly stated that when he went to
the police station to give report, defendant No.2 was found in
the police station itself. It is the case of no legal evidence on
record. Though the P.W.6 is declared as hostile, still his
evidence is taken into consideration to an extent that the
2
defendant No.1 and 2 were found at 4-00 P.M in Pragnapur Bus
station. Therefore, requested the Court to set aside the
Judgment.
3. The case of the prosecution is that the deceased No.1
(Jupally Mallesham) was the owner and the driver of the auto.
The accused are residents of different villages and they are
friends. One year back deceased No.1 abused and beat the
sister of accused A.1 on the ground that she was grazing cattle
in his lands. In that connection a Panchayat was held in the
Datarpally village and A.1 invited A.2, A.4 and another. They
also attended the said Panchayath. There quarrel took place
between the accused No.2 and deceased No.1. In another
occasion, one Anil of Datarpally village took away a girl from
Pragnapur crossroads and went to Cudapah. Ultimately, the
said girl brought back to the village and a Panchayat was held
in that connection. In the said panchayat quarrel took place
between accused No.2 and deceased No.1. Thereafter, all the
accused hatched a plan to kill the deceased D1 (Mallesham). On
01.06.2010
, accused were searching for deceased D1 to kill him. But, he was found in the bus stand with his auto at 4 - 30 p.m, the accused engaged the auto of the deceased D1 in which 3 deceased D.2 was also present. All of them proceeded towards Nacharam village. When auto reached outskirts of Nacharam village, accused A.2 said to have stabbed the deceased D.1 with a knife from backside. All the accused got down from the auto. When the deceased D.1 tried to escape, accused A.2 caught him and cut down his neck. When the deceased D.2 making hue and cry, accused A.3 cut down his neck with a knife. There is no motive for accused to kill deceased D.2, but they killed him to avoid their identification. As the whole incident was witnessed by L.W.7/Udutha Sathaiah, he was chased by accused with a view to kill him. But, he escaped from them. On receiving information with regard to the death of D.1 and D.2, PWs.1 to 3 went to the scene and found the dead bodies of D.1 and D.2. The scene of offence is located in between Toopran and Nacharam villages. P.W.1 gave a report in the police station under Ex.P.1.
4. On 02.06.2010, P.W.20 received a report with an endorsement of P.W.21. Basing on the said report a case in Cr.No.121 of 2010 was registered under Section 364 and 302 IPC and issued FIR to all concerned under Ex.P.33. On 01.06.2010 at about 8-00 p.m, P.W.21 received information 4 regarding the death of D.1 and D.2. Basing on the said information he went to the scene of offence and found dead bodies of D.1 and D.2. On 02.06.2010, P.W.22 conducted scene of offence panchanama in the presence of P.W.9 and seized M.Os.6 to 10. He conducted inquest over the dead body of D.1 in the presence of P.W.11. He also conducted inquest over the dead body of D2 in the presence of P.W.15. Ex.P12 is the inquest panchanama of D.2. P.W.22 recorded the statements of P.Ws.1, 2, 4 to 6. On 02.06.2010, P.W.18 Civil Assistant Surgeon conducted postmortem examination over the dead bodies of D.1 and D.2. Ex.P.30 is the PME report of D.1. Ex.P31 is the PME report of D.2. Cause of death of deceased is due to cardio respiratory arrest due to cut injury on neck. On 24.07.2010, P.W.16 Additional Judicial First Class Magistrate, Siddipet conducted Test Identification parade (T.I parade). In the said T.I Parade P.W.4 and P.W.17 did not identify any suspects. P.W.8 identified A.2 as the person who participated in the incident, but he did not identify accused in the Court. On 15.06.2010, P.W.22 arrested A1 to A6 at Medchal railway station and during the course of interrogation the accused alleged to have made a confession in presence of P.Ws.12 and
13. In pursuance of the said confession M.O.5 Nokia cell phone, 5 blood stain shirt and a knife were recovered and after completion of entire investigation P.W.23 filed charge sheet. Prosecution witnesses P.Ws.3 to 8, P.Ws.10 to 15, P.Ws.17 and 19 out of P.Ws.1 to 23 have not supported the case of the prosecution and they were declared as hostile. The plea of the accused is one of total denial. When the accused was examined under Section 313 Cr.P.C., he denied the evidence of prosecution as false.
5. The learned counsel for the appellant argues that P.Ws.8 and 17 are eye witnesses to the incident and others are circumstantial witnesses and panch witnesses. Apart from the eye witnesses P.Ws. 3 to 8, 10 to 15, 17 and 19 have turned hostile. There is no evidence to connect accused with the offence or to establish the motive against him. There is no evidence to show that accused A.2 participated in the incidence along with others and caused death of deceased D.1 and D.2. P.W.1 is the father of D.1, P.W.2 is the wife of D.1. They did not state anything against the appellant. Both of them expressed suspicion on A.1 and his friends. They did not made any specific allegation against A.2. The magistrate who was examined as P.W.16 conducted Test Identification Parade (T.I). 6 As the eye witnesses turned hostile and stated that they did not know the assailant and they did not identify them in the Court. His evidence is of no relevance.
6. The learned counsel for the appellant further argued that T.I Parade proceedings are not substantive piece of evidence and they are relating to investigation as like 162 statements, as the witnesses P.W.8 and 17 did not identify the assailants in the Court, Test Identification Parade proceedings have no relevance, has no value and cannot be relied upon. He also relied upon the Judgment passed by the Hon'ble Supreme Court in the case of Malkhansingh & others Vs. State of Madhya Pradesh,1 in support of his contention, in which it is held as follows:
"It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine."
7. It is for the prosecution to establish the guilt of the accused beyond reasonable doubt and it is for them to prove that except accused A.2 and no other person has committed the 1 2003 (5) SCC 746 7 death of D.1 and D.2. Admittedly, in this case, there are no eye witnesses to the occurrence and the case is based on circumstantial evidence. The actual dispute is between accused A.1 and deceased D.1. As D.1 beat the sister of A.1, Panchayat was conducted before the elders of the community. But, A.1 instructed to his friend A.2 to come and attend the Panchayat. As such, A.2 attended Panchayat and a quarrel took place between A.2 and D.1. A.2 along with others hatched plan to kill him. There is no evidence adduced by the prosecution to prove the motive for the offence, as all the material evidences turned hostile. Though, the charge sheet filed against A.1 to A.7, the trial Court found accused A.1, A.4 to A.7 not guilty for the offences punishable under Section 147, 148, 302, 307, 109 r/w 149 IPC and acquitted them under Section 235(1) Cr.P.C. The Judicial Magistrate of I - Class registered it as P.R.C.No.44 of 2011. During the pendency of the proceedings, accused A.3 was absconding and N.B.W pending against him since long time. As such, the case against A.3 was split up as P.R.C.23 of 2012 and the case is committed to the Court of Sessions. The learned Principal District and Sessions Judge, Medak at Sangareddy took up the case on file as S.C.No.202 of 2012 and made over the case to the IV- Additional District Sessions Judge, Siddipet. 8 He pronounced the Judgment acquitting the above accused and convicting the accused A.2 alone for the charge under Section 302 I.P.C. P.W.1 is the complainant, he clearly stated in complaint that he found A.2 in the Police Station when he went to Police Station for lodging a complaint under Ex.P1. He gave complaint on 01.06.2010 at 8-00 p.m in P.S. Toopran and it was registered as Cr.No.121 of 2010 under Ex.P.34 on 02.06.2010 and F.I.R was issued under Ex.P35. There is correction in the date under Ex.P.35. P.W.1 stated that he is suspecting accused A.1 for death of his son deceased D.1 in the charge sheet and in the evidence, it was clearly mentioned that there is no motive for the accused to kill D.2. As he was accompanying D.1 to avoid identification, accused also killed him. As per charge sheet A.3 killed D.2. As the case split up against him, it cannot be considered now.
8. The case of the prosecution is that P.W.22 arrested A.1 to A.6 on 15.06.2010 and at the instance of the confession given by them, they also seized certain material objects. In view of the evidence of P.W1, the said arrest and confession appears to have created by the police for the purpose of the case. The trial Court did not believe the evidence of the defendant counsel and 9 wrongly held that P.W.1 might have stated wrongly regarding the presence of A.2 in the Police Station. P.W.1 is no other than the father of deceased D.1. When Panchayat was conducted in their village, there was occasion for him to see accused A.2. As per the case of the prosecution, quarrel took place between A.2 and D.1 and there is no reason for P.W.1 to state falsely about his presence in the Police Station when he went to the Police Station for giving complaint. Therefore, the trial Court erred in not believing the fact regarding presence of A.2 in the Police Station on 01.06.2010. P.W.4 is the eye witness to the occurrence. He was at a distance of 400 - 500 Sq.yrds from the scene of offence. However, he turned hostile. P.W.5 is the Manager of the Vinayaka lodge at Gajwel and he did not identify the accused. The register maintained in the hotel was seized by the police after 6 or 7 days under Ex.P4. P.W.6 stated that he found D.1 and D.2 at Pragnapur auto stand at 4 p.m. P.W.7 stated that he knows A.1 and D.1. As he worked as Sarpanch, he kept as signatory for the inquest Panchanama. But, he stated that Panchayat was conducted between A.1 and D.1 about one month back though it was conducted about 1 year back. P.W.8 is the Auto person supplying water. He stated that he was proceeding on Auto, he noticed two dead bodies. But, he 10 turned hostile and he identified the accused in the jail, but not in the Court and it was suggested that he was shown culprits photographs before identification. P.W.9 is the witness for scene of offence panchanama, under MO -1 beer bottle was seized. P.W.10 and P.W.11 are panch mediators on inquest of the deceased No.1. P.W.12 is the mediator for confession of six persons and seizername of A.2 and he identified A.2 in the Court. P.W.13 is also another mediator for confession panchanama under which MO- 2 to 5 of A.2 were recovered. But, he turned hostile regarding location of recovery spot. P.W.14 is the mediator for seizer of an auto under Ex.P17 and declared as hostile. P.W.15 is the mediator for inquest of D.2 under Ex.P18 and declared as hostile. Except the official witnesses all other witnesses turned hostile to the case of the prosecution. P.W.1 also expressed suspicion against A.1 but not against A.2 when the trial Court clearly held that there is no evidence against A.1 and others and acquitted them. Basing on the same evidence how can A.2 be convicted may be in view of MOs.2 - 5 pertaining A.2 were recovered at the scene of offence. But, the witnesses clearly stated that confessional panchanamas were drawn not at the scene of offence, but they were drawn at the railway station. Even in the Test 11 Identification Parade conducted by the Magistrate one Ch.Kanaka Raju identified A.2, but he failed to identify in the Court. It is for the prosecution to connect accused with the offence. A.2 was convicted for an offence under Section 302 I.P.C which is a grave offence, as all the material witnesses turned hostile the trial Court erred in convicting the A.2 for the said offence. Therefore, the Judgment of the trial Court is liable to be set aside.
In the result, accused A.2 is found not guilty for the offence under Section 302 IPC and acquitted under Section 235(1) Cr.P.C, bail bonds of accused A.2 shall stands closed. M.Os.1 to 17 and other properties shall be destroyed and M.O.18 auto shall be returned to A.5.
Miscellaneous petitions pending, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA _________________________ Dr. JUSTICE D.NAGARJUN DATED: 19.11.2022 tri 12 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA AND THE HONOURABLE Dr. JUSTICE D.NAGARJUN CRIMINAL APPEAL No.62 of 2014 DATED: .11.2022 TRI 13