Telangana High Court
Burri Sanjeeva Reddy vs The State Of Ap., on 25 January, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.928 of 2013
JUDGMENT:
(per Hon'ble Sri Justice K. Lakshman) Heard Sri V. Raghunath, learned Senior Counsel for the appellants and Sri T.V. Ramana Rao, learned Additional Public Prosecutor appearing on behalf of the respondent - State.
2. This appeal is filed challenging the judgment dated 04.10.2013 in S.C.No.114 of 2013 passed by IX Additional Sessions Judge at Kamareddy (for short, 'trial Court'). The appellants herein are accused Nos.1 to 4 in the aforesaid Sessions Case. Vide impugned judgment, the trial Court convicted the appellants - accused Nos.1 to 4 for the offenses punishable under Sections 302, 201 and 506(1) of IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.5,000/- each, in default, simple imprisonment for six months for the offence punishable under Section 302 IPC; to suffer rigorous imprisonment for two years for the offence punishable under Section 201 IPC; and to suffer rigorous imprisonment for two years for the offence punishable under Section 506 (1) IPC.
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3. The case of the prosecution is as follows:
i) Accused No.2 is the father of accused Nos.1, 3 and 4 while accused No.5 is the elder brother of PW.1 and the deceased.
The deceased, PW.1 and accused No.5 were separated 15 years ago. During separation, they got their respective shares in agricultural land. However, PW.1 and his deceased brother were cultivating the land together in Survey Nos.31 and 32, situated in the outskirts of Pothangal Village, Gandhari Mandal, Nizamabad District.
ii) In the year 2002, P.W.1 and the deceased purchased an extent of land admeasuring Ac.2-00 guntas belonging to accused No.5 which was situated adjacent to their land. They have also purchased the land admeasuring Ac.2-00 gunta from one Oddula Narayana - PW.7, Ac.1-00 gunta from one Shivaiah - PW.10 and Ac.1-00 gunta from one Mrs. Bommala Rajavva.
iii) Accused Nos.1 to 4 had some agricultural land in Survey No.33, which is adjacent to the lands of PW.1 and the deceased, and the said land is in the upper area of the land of PW.1 and the deceased. As such, they were demanding PW.1 and the deceased to provide way to go to their land through the land of P.W.1 and the deceased. However, PW.1 and the deceased did not accept for the same. In the said context, accused Nos.1 to 4 used to harass PW.1 and the deceased and also threatened both of them. PW.1 and the 3 KL,J & SKS,J CRLA_928_2013 deceased lodged a complaint against accused Nos.1 to 4 whereby, they gave an undertaking that they will not harass PW.1 and the deceased. Accordingly, the matter was subsidized amicably in the presence of elders of the village.
iv) Accused No.5, elder brother of PW.1 and the deceased, was an ex-militant of CPI (Maoists). He used to demand P.W.1 and the deceased to return him the land earlier sold to them, but PW.1 and the deceased did not accept the same. Thus, all the accused developed grudge against PW.1 and the deceased.
v) Accused Nos.1 to 4 were planning to put an end to the life of either PW.1 or the deceased. Accused No.5 also joined them and accordingly, all of them conspired criminally to kill either PW.1 or the deceased.
vi) On 30.05.2012, PW.1 and the deceased attended their work in their fields for the entire day and went to their houses in the evening. On the same day, all the accused sat in an isolated place and accused No.5 disclosed his conspiracy before accused Nos.1 to 4 that, during night hours, the deceased may be called to his fields informing about burning of Maize Hay stock and when the deceased comes to the field, they can complete their task and that accused No.5 would watch the same by hiding himself. 4
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vii) Pursuant to the said plan and conspiracy of accused No.5, on the night of 30.05.2012, accused Nos.1 to 4 gathered in their fields, while accused No.5 was watching the way by hiding himself. At about 10:30 P.M., accused No.1 called the deceased on his mobile phone bearing No.9440922395 through the mobile phone of accused No.4 bearing No.9440739028 and informed the deceased that the Hay stock of Maize was burning in his fields. In turn, the deceased informed the same to PW.1. Both of them left their house at about 10:45 P.M. When they reached near their fields, accused No.1 suddenly attacked the deceased with a thick stick, as a result, the deceased received head injury and collapsed there. Then, accused Nos.3 and 4 brought some dry grass and Hay of Maize and put the same on the deceased. Thereafter, accused No.2 lit fire and burnt the deceased alive with an intention to create accidental burn and to screen the evidence. On observing the said incident, PW.1 intended to rescue his brother, but all the accused threatened him saying that if he comes forward, he will also be burnt. Therefore, P.W.1 fled away from the scene of offence to rescue himself.
viii) On the next day i.e., 31.05.2012 at about 07:00 A.M., PW.1 went to the Police Station, Gandhari and lodged Ex.P1 - complaint against the accused. On receipt of the same, the Police 5 KL,J & SKS,J CRLA_928_2013 registered a case in Crime No.50 of 2012 against accused Nos.1 to 5 for the offences punishable under Sections 302, 201 and 506 of IPC and took up the investigation.
ix) During investigation, the Investigating Officer recorded the statements of the witnesses and requested the doctor to conduct autopsy over the dead body of the deceased. On completion of investigation, he has laid charge sheet against all the accused for the aforesaid offences. The same was taken on file as Sessions Case No.114 of 2013 by learned IX Additional Sessions Judge at Kamareddy, Nizamabad District.
x) To prove the guilt of the accused and the motive, the prosecution has examined PWs.1 to 17 and got marked Exs.P.1 to P.17. MOs.1 to 4 were also exhibited on behalf of the prosecution.
4. On consideration of the entire evidence, both oral and documentary, and after hearing both sides, the trial Court convicted accused Nos.1 to 4 for the aforesaid offences and sentenced life imprisonment. However, the trial Court has acquitted accused No.5 for the offences punishable under Section 302 read with 34 and 120(b) IPC. No appeal was preferred challenging the impugned judgment to the extent of acquitting accused No.5. 6
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5. Challenging the said conviction and sentences of life imprisonment, the appellants/accused Nos.1 to 4 preferred the present appeal.
6. Attacking the impugned judgment, Sri V. Raghunath, learned Senior Counsel appearing for the appellants, contended as follows:
i. The prosecution failed to prove the motive i.e., land disputes, by producing cogent evidence.
ii. There are material contradictions in the depositions of prosecution witnesses. There is no mention with regard to PW.1 going to his house at about 05:00 A.M., on the next day i.e., 31.05.2012, and informing the incident to PW.2 - wife of the deceased and further that he went to the police station directly and lodged Ex.P.1 - Complaint.
iii. There is delay in sending FIR to the trial Court and there is no explanation from the prosecution for the said delay.
iv. The presence of PW.1 is highly doubtful.
v. According to PW.1, the alleged incident took place on 30.05.2012 in the mid-night and even then, PW.1 failed to inform the said fact to the family members and police immediately. He lodged Ex.P1 - Complaint before the police on the next day i.e., 31.05.2012 at 07:00 A.M. There is no explanation, much less plausible explanation from PW.1 with regard to his presence from 11:00 P.M., of 30.05.2012 to 05:00 A.M., on 31.05.2012.
vi. MO.1 - Stick and MO.3 - Ash, were not sent to Forensic Science Laboratory. Therefore, recovery itself is doubtful. vii. Receipt of phone call was not mentioned in Ex.P.1 -
Complaint.
viii. Mobile phones of accused No.4 and the deceased were not seized.
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KL,J & SKS,J CRLA_928_2013 ix. Accused No.2 was aged about 62 years as on the date of the incident and there is no specific overt act against him, except general allegations.
x. Placed reliance on Section 8 of the Indian Evidence Act, 1872.
Ex.P.17 - Call Data does not contain the signatures, seal, etc., of the authority concerned, who issued the same. xi. Without considering the said aspects, the trial Court convicted accused Nos.1 to 4 and imposed sentence in the manner stated supra.
7. Whereas, learned Additional Public Prosecutor would contend that the prosecution has proved motive and guilt of the accused beyond reasonable doubt. PW.1 is eyewitness and also the brother of the deceased and he has narrated the entire scene. To prove the motive i.e., land disputes, the prosecution has examined PWs.1 to 8. PW.9 and 11 specifically deposed that the accused, the deceased and PW.1 were seen in the agricultural fields. PW.10 is the panch witness for confession panchanama. MOs.1 and 2 were seized from the accused. The Investigation Officer has proved the guilt of the accused beyond reasonable doubt. The offence committed by the accused is serious and grave in nature. On considering the entire evidence, the trial Court rightly convicted the appellants. MOTIVE:
8. As discussed supra, according to the prosecution, the motive is land dispute. To prove the same, prosecution has examined PW.1 8 KL,J & SKS,J CRLA_928_2013
- elder brother, PW.2 - wife, PW.3 - father, PW.4 - cousin of the deceased. PW.5 and PW.6 are residents of Pothangal village, to which the accused and the deceased belong. PW.7 and PW.8 sold the land to PW.3 and the deceased respectively.
i) PW.1 deposed that he and the deceased together purchased land admeasuring Acs.2.00 gts., belonging to accused No.5, Ac.1.00 each from PWs.8 and 10. From the date of said purchase, accused Nos.1 to 4 started quarrelling with him and the deceased with regard to rastha. They have lodged a complaint before the police with regard to the said rashta dispute and police came and enquired both of them. Accused Nos.1 to 4 told that they do not want any rastha and they look after the same afterwards.
ii) He further deposed that about one year prior to the incident, he, deceased and his father were in their land, accused No.5 along with some unknown persons came to them to attack and kill them. They escaped from them, informed the said fact to the Villagers, who in turn advised them and accused No.5 not to quarrel with each other.
iii) PW.2, wife of the deceased and PW.3, father of the deceased, also deposed in the same lines with regard to purchase of land and the dispute with regard to rastha.
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iv) PW.4 deposed that a panchayath was held between the accused and the deceased in respect of the rastha dispute for two times. He attended the said panchayaths. Villagers also were present in the said panchayaths. However, during cross- examination, he has admitted that he does not know the names of the accused Nos.1 to 4 and that he was not present in the panchayaths. Therefore, his evidence is not useful to the prosecution.
v) PW.5, resident of Pothangal Village, deposed that prior to the incident quarrel took place between the accused and the deceased with regard to the rastha, panchayaths were held in the village thrice, he was also present in the panchayaths and elders advised both sides not to quarrel and live peacefully. He also deposed about purchase of accused No.5's land by PW.1 and the deceased and accused No.5 demanding them to return the same. Nothing contra was elicited from him during cross-examination.
vi) PW.6, another resident of Pothangal village, deposed about quarrelling of accused Nos.1 to 4 with PW.3 for rastha about three years ago. Accused No.2 told that elders said that there is no rastha in the land of PW.3. Accused No.5 sold land to PW.1 and the deceased and that elders advised accused No.5 not to ask for return of land. However, during cross-examination, he has admitted that 10 KL,J & SKS,J CRLA_928_2013 after first panchayath, accused Nos.1 to 4, deceased lived peacefully without any ill-feelings. There were talking terms between them till the death of the deceased.
vii) PW.7 deposed about sale of his land to PW.3 about 16 years ago and that lands of accused Nos.1 to 4 situate adjacent to the land sold by him to PW.3. There was no rastha in the land. After purchase of the land by PW.3, accused Nos.1 to 4 started quarrelling with PW.3 for rastha in the said land and that panchayaths were also held with regard to the same. During cross- examination, he has admitted that he was not present in the panchayts, he has not witnessed accused Nos.1 to 4 quarrelling with PW.3 for rastha. Therefore, his evidence is not useful to the prosecution to prove motive.
viii) PW.8 deposed that he sold the land to the deceased about four years ago.
ix) PW.10, another resident of Pothangal village, deposed that there is a Grama Committee in his village. He is the President of the same. The deceased and PW.1 came to the committee with a request to resolve the dispute between them and accused No.5. They have called accused No.5, PW.1, PW.3 and the deceased and 11 KL,J & SKS,J CRLA_928_2013 advised accused No.5 to enjoy the property as per the earlier division, for which accused No.5 agreed.
x) It is relevant to note that during cross-examination, accused Nos.1 to 4 have taken a defence that the death of the deceased is accidental due to fire and that by taking advantage of earlier land disputes, PW.1 to PW.3 implicated them in the said case. Thus, accused have admitted that there are land disputes among them and PW.1 and the deceased. Thus, there are disputes between them, PW.1, PW.3 and the deceased.
xi) In the light of the said discussion, the contention of learned senior counsel that the prosecution failed to prove the motive beyond reasonable doubt cannot be accepted.
9. To connect the accused with the offence, the prosecution has examined PW.1 (brother of the deceased, complainant and eyewitness to the incident) and also PWs.9 and 11, who have seen the accused, PW.1 and the deceased in the agricultural field on the night of 30.05.2012.
i) PW.1 is an eye-witness and elder brother of the deceased. He deposed that on 30.05.2012 while he and the deceased were in the house, accused No.1 telephoned to the deceased at about 11.00 P.M., informed him that fire came from their land to the hayrick of 12 KL,J & SKS,J CRLA_928_2013 accused No.1. On receipt of the said information, the deceased proceeded towards their lands and PW.1 followed the deceased. Accused Nos.1 to 4 were present there. The deceased asked them what was happened, on that accused No.1 beat the deceased with stick on the head of the deceased, due to which, the deceased fell down. Accused Nos.2 to 4 beat the deceased with stick. Then, accused Nos.1 to 4 brought dry gross and placed the same on the deceased and set fire the deceased while he was alive. They have threatened him and, therefore, he escaped from them.
ii) Thus, according to him, accused No.1 made a call to the deceased and beat the deceased with stick. There are no specific overt acts against accused No.2. Accused No.2, father of accused No.1, 3 and 4, was aged about 62 years as on the date of incident. He was there at the scene of offence. Mere presence of accused No.2 at the scene of offence is not sufficient. PW.1 did not speak about the role played by accused No.2 specifically in commission of offence.
10. PW.9, resident of Pothangal village, deposed that on the date of incident at about 10.30 P.M., he met the deceased while he was near Hanuman Temple of the said Village. He asked the deceased as to where he was going during night time, to which the deceased 13 KL,J & SKS,J CRLA_928_2013 replied that he was going to his land as he received phone call from one Sangamolla Person informing him that hayrick yard caught fire. PW.9 told the deceased to take the assistance of other people as it was night. The deceased was holding torchlight in his hand.
i) During cross-examination, he has admitted that the deceased was alone going. Five minutes after the deceased left the place, he went to his house.
ii) PW.11, resident of Pothangal village, deposed that on the day of incident, he went to search his missing buffalo. At about 10.30 P.M., he noticed accused Nos.1 to 4 at their fields and also noticed burning of hayrick. Thereafter, he returned to his house. In the morning, he came to know that the deceased died and he went to the scene of offence, found the burnt dead body of the deceased.
iii) During cross-examination, he has admitted that he went to the scene of offence in search of his missing buffalo.
iv) Thus, PW.9 saw the deceased going to his field and PW.11 saw accused in the field and also noticed burning of hayrick.
11. Though PW.1 deposed that accused Nos.2 to 4 have also beat the deceased with stick, only MO.1 - stick was exhibited. Thus, 14 KL,J & SKS,J CRLA_928_2013 there is no specific overt act against accused No.2 with regard to beating the deceased with stick. As discussed supra, mere presence of accused No.2 in the scene of offence alone is not sufficient to convict him for the offence under Section 302 of IPC in the absence of other corroborative evidence.
i) PW.14 is the panch witness for recovery of MO.1 - stick, MO.2 - torchlight and MO.4 - match box from the agricultural field of the accused Nos.1 to 4 at the instance of accused Nos.1 to 5. During cross-examination, he has admitted that he used to visit the house of the deceased now and then. Thus, his evidence is not useful to connect accused No.2 to the offence.
ii) PW.15 is the doctor, who conducted autopsy over the dead body of the deceased, and according to him, the cause of death is post-burns shock due to hypovolemic shock due to deep burns with open head injury with expulsion of frontal lobe of brain. Ex.P15 is the post-mortem examination report. During cross-examination, he has admitted that the deceased sustained 100% deep burns.
iii) PW.16 is the Sub-Inspector of Police who deposed about receipt of complaint from PW.1 on 31.05.2012 at 7.00 A.M., registration of Ex.P16 - FIR, and sending of the same to the Court. 15
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iv) PW.17 is the Investigating Officer, who recorded the statements of the witnesses and on completion of investigation he laid charge sheet. He deposed that he conducted inquest over the dead body of the deceased at the scene of offence in the presence of panchas, Ex.P6 is the inquest panchanama. He seized MO.3 - ash. He arrested the accused on 04.06.2012 and recorded their confessional statements separately. Exs.P7 to P11 are confessional panchanamas of accused. At the instance of accused No.1, he recovered MO.1 under Ex.P12 - recovery panchanama. He seized MO.4 at the instance of accused No.2 under Ex.P13 - panchanama and MO.2 - torchlight at the instance of accused No.3 under Ex.P14. He has secured call details (Ex.P17) of mobile number 9440739028 belongs to accused No.4 as per which the deceased received phone call to his mobile number 9440922395 from the cell phone of accused No.4 on 30.05.2012 at 22:31 hours and at 22:54 hours.
v) However, during cross-examination, he has admitted that he has collected Ex.P17 call details from BSNL and there is no seal and signature of Issuing Authority on the same. He has not seized cell phones of accused No.4 and the deceased. He has not filed any record to show that SIM Cards for the said cell numbers were issued in the name of accused No.4 and deceased respectively. 16
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vi) The aforesaid evidence would reveal that accused No.1 beat the deceased with stick. Accused No.1 made a call to the deceased from the mobile phone of accused No.4. PW.17 - Investigating Officer collected Ex.P17 - call data in proof of the same. Nothing was seized from accused No.2. There are no specific overt acts against him except his presence in the scene of offence. He was 62 years at the time of incident.
vii) PW.2, wife of the deceased, also spoke about receipt of phone call by the deceased from accused No.1 and that the deceased left the house and PW.1 followed him. During cross- examination, she has admitted that PW.1 and the deceased were living separately and immediately after the deceased left the house she went to PW.1, woke him up, informed him about the receipt of phone call from accused No.1. Thereafter, PW.1 proceeded to the scene of offence.
viii) As discussed supra, accused No.1 made a call to the deceased through mobile phone of accused No.4. They are own brothers. In proof of the same, PW.17 Investigating Officer collected call data i.e., Ex.P17. The said aspect was considered by the trial Court in the impugned judgment.
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ix) Thus, prosecution could prove the guilt of accused Nos.1, 3 and 4 beyond reasonable doubt. There are land disputes among PW.1, PW.3, deceased and accused, more particularly, with regard to rastha. MO.1 - stick was recovered from accused No.1.
x) As discussed supra, except stating that accused No.2 was also present, there is no other specific evidence against him. Without considering the said aspects, the trial Court convicted him along with other accused. Therefore, the conviction recorded against accused No.2 vide impugned judgment is liable to be set aside.
12. Mr. V. Raghunath, learned senior counsel, would contend that the trial Court cannot record conviction against the accused relying on the evidence of sole witness. As discussed supra, PW.1 is the brother of the deceased and eye-witness to the incident. There is no contradiction in his evidence. Depositions of PWs.2 and 3, wife and father of the deceased corroborated with the deposition of PW.1. PW.9 and PW.11 have seen the deceased and accused respectively on the day of incident. PW.2, wife of the deceased and PW.9 also specifically deposed that the deceased was holding torchlight (MO.2). Recovery and seizure are also proved. 18
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13. It is well recognized principle of law that evidence of sole witness can be acted upon and there is absolutely no need of corroboration of his version by any independent material, and Courts should consider that the evidence is absolutely reliable. The said principle was also laid down by the Hon'ble Supreme Court in Karunakaran v. State of Tamil Nadu1, Anil Phukan v. State of Assam 2 and Jagadish Prasad v. State of Madhya Pradesh 3.
14. In the light of the aforesaid discussion, the contention of learned senior counsel appearing for the appellants - accused Nos.1 to 4 that the presence of PW.1 at the scene of offence is doubtful cannot be accepted.
15. In paragraph No.43 of the impugned judgment, the trial Court gave a finding that the evidence of PW.1 is convincing and inspiring confidence. Though there is a doubt on the aspect of recovery of MOs.1, 2 and 4, in view of the evidence of PW.1 - eyewitness to the incident, involvement of accused Nos.1 to 4 in commission of the murder of the deceased is proved.
16. It is relevant to note that during cross examination, accused Nos.1 to 4 have taken defence that the death of the deceased is 1 AIR 1976 CRILJ 331 2 AIR 1993 SC 1463 3 AIR CRILJ 1106 19 KL,J & SKS,J CRLA_928_2013 accidental due to fire and that by taking advantage of the earlier land disputes, PWs.1 to 3 implicated them in the present case. However, they have not informed the said fact to anybody including villagers, their relatives or wife, brother or father of the deceased. Further, they have not lodged any complaint with the police. They have not informed the said fact to the revenue officials of their village. Therefore, the said defence taken by the accused cannot be accepted.
17. In paragraph No.26 of the impugned judgment, trial Court gave a finding that accused Nos.1 to 4 were in such a ferocious state and in such an aggression mood, they have burnt the deceased alive. As discussed above, accused No.2 is father of accused Nos.1, 3 and 4 and he was aged about 62 years at the time of incident. There are no specific overt acts against him except his presence at the scene of offence. Therefore, the said finding of the trial Court in so far as accused No.2 is concerned is without any basis. He was in jail from 04.10.2013 to 16.10.2018. At present he is 73 years.
18. Vide impugned judgment, trial Court acquitted accused No.5 and no appeal is preferred by the respondent - State challenging the same. It attained finality.
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19. In the light of the aforesaid discussion, the conviction and sentence of imprisonment recorded against accused No.2 vide impugned judgment is set aside, while conviction and sentences of imprisonment recorded against accused Nos.1, 3 and 4 are maintained.
20. Therefore, the conviction and sentence of imprisonment recorded by IX Additional Sessions Judge at Kamareddy, Nizamabad District against appellant No.2/accused No.2, vide impugned judgment dated 04.10.2013 in S.C.No.114 of 2013 is hereby set aside. However, the conviction and sentences of imprisonment recorded against appellant Nos.1, 3 and 4/accused Nos.1, 3 and 4 hereby are confirmed. Consequently, accused No.2 is not found guilty of the offences punishable under Sections 302, 201 and 506(1) of IPC and he is acquitted of the said charges. Appellant No.2/accused No.2 is already on bail. Bail bonds furnished by him shall stand cancelled. The fine amount paid by appellant No.2/accused No.2 shall be refunded. Accused Nos.1, 3 and 4 are on bail. Therefore, they are directed to surrender before the IX Additional Sessions Judge at Kamareddy, Nizamabad District, for undergoing remaining sentences of imprisonment within a period of one (01) month from the date of receipt of a copy of this judgment, failing which, the trial Court is at liberty to take steps in accordance 21 KL,J & SKS,J CRLA_928_2013 with law to apprehend and incarcerate them for serving out the remaining sentences of imprisonment as per the confirmed sentence.
21. The present Criminal Appeal is accordingly allowed in part.
As a sequel, miscellaneous applications, if any, pending in the Criminal Appeal shall stand closed.
__________________ K. LAKSHMAN, J ________________ K. SUJANA, J Date: 25.01.2024 GSP/TJMR