D.Siva Shankar Reddy vs Cbi Rep By Its Spl.Public ...
2022 Latest Caselaw 151 AP

           THE HONOURABLE SRI JUSTICE D.RAMESH

                 CRIMINAL PETITION No.7550 Of 2021

ORDER: -

      Heard Sri T.Niranjan Reddy, senior counsel appearing for Sri Dilip

Jayaram, learned counsel for the petitioner and Sri A.Chennakesavulu,

Special Public Prosecutor appearing for the respondent-CBI.

2. The petitioner herein is alleged to be accused No.5/A5 in Crime

No.84 of 2019 of Pulivendula Urban Police station under Section 174 of

Criminal Procedure Code [for short Cr.P.C]. This being the 2nd bail

application, filed aggrieved by the order dated 21.12.2021 passed by the

court below i.e., IV Additional District Judge-Special Sessons Judge for

Trial of Offences under S.Cs. and S.Ts. (P.O.A.), Kadapa in rejecting the

bail application.

3. The case of the prosecution is that on 15.03.2019 at about

8.00a.m. one Mr. M.V. Krishna Reddy, Personal Assistant of

Y.S.Vivekananda Reddy [herein after referred as the deceased] gave a report

to the Police, Pulevendula stating that the deceased found in the

bathroom lying in pool of blood with certain injuries. On the said

complaint, Pulivendula Urban Police registered the same as a case in

Crime No.84 of 2019 under section 174 of Cr.P.C. On that inquest was

conducted over the dead body of the deceased and it was opined that the

deceased was murdered by unknown persons. For investigating the

same, Special Investigation Team (SIT) was constituted on 15.03.2019,

headed by Additional DGP. During the course of investigation, basing on

the statements of several witnesses, SIT arrested one Thummala Gangi

Reddy @ Erra Gangi Reddy (A1) on 05.04.2019. Later confessional

statements of the accused were recorded, they were remanded to judicial

custody and released on bail consequently.

4. While that being so, Mrs.Y.Sowbhagyamma, wife of the deceased

filed W.P.No.3944 of 2019 before this Court to entrust investigation to

CBI and another Writ Petition No.1639 of 2020 was filed by Dr.D.Sunitha

Reddy, daughter of the deceased and her husband-Mr.N.Rajasekhar

Reddy. This court by a common order dated 11.03.2020 allowed both

the writ petitions, directing the CBI to conduct further investigation.

During the course of investigation, CBI arrested one Sunil Yadav (A2) on

02.08.2021 at Goa and was remanded to judicial custody on 04.08.2021

by Judicial Magistrate of First Class, Pulivendula and also arrested one

Gajjala Uma Sankar Reddy (A3) and remanded to judicial custody on

09.09.2021. On 25.08.2021 161 Cr.P.C. statement and on 31.08.2021

164 (1) Cr.P.C. statement of Shaik Dasthagiri (A4) were recorded and he

was granted pre-arrest bail by the IV Additional Sessions Judge, Kadapa

on 22.01.2021.

5. In the said statements A4 revealed the role of each accused

including himself. According to the statements, it is alleged that A1

informed to A4 that influential people are behind and they will give forty

crores of rupees, out of which, A4 will be given five cores. It is also stated

that one Sunil Yadav (A2) paid an amount of rupees one crore to A4 and

further confessed that he purchased an axe, which was used in the

commission of the offence. He further confessed that he caused an

injury on the right palm of the deceased with the said axe. According to

his statements, A1 informed A4 that he spoke to the petitioner and

others and they have assured to take care of the issue.

6. Based on the statement made by A4 under section 164 (1) Cr.P.C.,

the petitioner was included as accused No.5 (A5), he was arrested on

17.11.2021 and remanded to judicial custody on 18.11.2021.

7. In the said remand report, allegations made against the petitioner

are as follows :-

"5. That statement of Sh. B. Ranganna under section 164 Cr.P.C. was recorded by the Hon'ble Court of Judicial Magistrate of First Class, Jammalamudugu District, Kadapa on the facts disclosed by him in his knowledge relating to the murder of YS Vivekananda Reddy. He has disclosed in his statement that in the intervening night of 14.03.2019 and 15.03.2019 he was sleeping in the veranda in front of the main gate of the house. In the night he had heard the noise and he got up. Thereafter, he saw that Sh.Shaik Dasthagiri, Yadati Sunil Ydava, Yerra Gangi Reddy and one tall and thin persons were available in the house and they were searching something in the house. On seeing the same, he hid himself and after sometime all four fled from the side gate of the house. Thereafter, B. Ranganna entered in the house and he saw blood in the bed room and thereafter dead bod of YS Vivekananda Reddy in pool of blood in the washroom of the bed room.

6. That during investigation, two accused persons namely Yaditi Sunil Yadav and Gajjala Umashankar Reddy were arrested by CBI and presently they are in judicial custody.

7. That Accused D.Siva Shankar Reddy on 15.03.2019 visited the house of YS Vivekananda Reddy at around 6.30 a.m. on receiving the information of death. On seeing the dead body in a pool of blood having several grievous injuries, he was part of conspiracy for propagation of heart attack theory. He informed Sakshi T.V., that YS Vivekananda Reddy died due to heart attack and also contacted C.I. of Pulivendula to reach the house of YS. Vivekandanda Reddy to control the mob as he died due to heart attack. Thereafter, he actively participated in destruction of scene of crime by way of cleaning the bed room, bathroom, cotton, bandages on the injuries of deceased to hide the same.

8. That it is revealed during investigation that the room was bolted from inside while the cleaning and the bandaging were going on as per directions of D.Siva Shankar Reddy and his close associates.

9. That it is also revealed that D Siva Shankar Reddy and his close associates convinced the visiting persons that YS Vivekananda Reddy died due to blood vomiting and heart attack.

10. That it is also revealed during investigation that the conspiracy for murder of YS Vivekananda Reddy was hatched at the behest of accused D Siva Shankar Reddy and his close associates, one month prior to the murder by offering huge remuneration to the other co- accused persons.

11. That Sh. D Siva Shankar Reddy played an active role in destruction of scene of crime along with accused Gangi Reddy.

12. That Sh.D Siva Shankar Reddy scolded C.I. Shankaraiah to keep mum and also instructed that they have to manage it as a heart attack and blood vomiting.

13. That Sh.D Siva Shankar Reddy also called Shaik Dasthagiri in the month of March 2021 in the house of Sh. Bayupu Reddy (close friend) at Pulivendula for briefing not to disclose his name and others before CBI."

14. It is also revealed during investigation that the accused, D Siva Shankar Reddy is found influencing the vital witnesses."

8. The main allegation against the petitioner herein is the conspiracy

for murder of the deceased at the behest of the petitioner and his close

associates one month prior to the commission of the offence by offering

huge amounts to the other accused. It is also alleged that the petitioner

visited the house of the deceased on 15.03.2019 at about 6.30 a.m. on

the day of occurrence. He is said to have made the propaganda that the

deceased died due to heart attack. The petitioner contacted Circle

Inspector of Police Pullivendula and requested him to control the mob

and actively participated in cleaning the bed room, bath room and

putting bandages on the injuries of the deceased, thereby actively

participated in destruction of the scene of crime along with A1. Further

alleged that the petitioner called Shaik Dasthagiri (A4) to the house of his

friend Bayapu Reddy and instructed him not to disclose his name and

others before the CBI.

9. Based on the above facts, learned senior counsel appearing on

behalf of the petitioner has contends that the petitioner was not

shown as accused in the F.I.R. and after entrustment of the

investigation to the CBI, basing on the confessional statement of A4,

the petitioner was implicated as an accused. He submitted that the

petitioner is innocent of the alleged offences, with which he has been

charged and the petitioner has been falsely implicated without there

being any incriminating material to connect him to the alleged

offences.

10. He further submitted that at the earliest point of time, SIT

examined A4 as LW.33, but he did not state anything about the

alleged incident and CBI has recorded the statement of A4 after lapse

of 29 months but with the pressure of the investigation agency A4

made allegations against the petitioner and many others. Hence, the

investigation agency conducted investigation not in a fair manner.

11. Learned counsel also contended that even according to the

confessional statement made by A4, there are no specific overt acts

alleged against the petitioner to attract the ingredients of Section 302

of Indian Penal Code [for short IPC] and the petitioner has present

only after the incident. He further contended that the alleged

statements by A4 were made under undue influence exerted by the

investigation agency and for making such statements, the

investigation agency extended certain statutory benefits to A4. In

fact, based on the counter filed by the investigation agency, the

learned Sessons Judge has granted pre-arrest bail to A4. Hence, no

credence can be given to the alleged statements given by the A4.

12. Learned counsel further emphasised that the persons who are

involved in the offence i.e., A1 was already released on bail on

27.06.2019 by the Sessions Court and A4 was granted pre-arrest bail

by the Sessions Court, based on the concession given by the

investigation agency. Leaned senior counsel for the petitioner also

submitted that the petitioner was diagnosed with Rotator Cuff Tear

left shoulder and underwent surgery on 15.11.2021 in Sunshine

Super Speciality Hospital, Secunderabad. The petitioner was

discharged with an advice to take bed rest two weeks, dressing for

one week and informed that the stitches will be removed in two

weeks. Further he was advised to take medication. While the

petitioner was under medication, CBI arrested him at Hyderabad and

he is confined in Central Prison, Kadapa.

13. Learned senior counsel further submitted there are no

ingredients attracting the offence under Section 302 of IPC except the

statement made by A4, only the ingredients of Section 120 of IPC

would attract and even for the same there is no material evidence

available for prosecuting the petitioner under Section 120B IPC.

Further he submitted that the Honourable Apex Court in catena of

judgments has categorically stated that the statement made by the

co-accused would not be relied heavily to consider the case under

Section 120B IPC.

14. Learned senior counsel further submitted that Section 10 of

Indian Evidence Act will only come into play when there exists

reasonable evidence that two or more persons have conspired to

commit the offence. But in the instant case, no such incrementing

evidence is available or seized, except the bold statement made by A4.

Hence, Section 10 of Indian Evidence Act, would not be applicable in

the present case.

15. To support his contentions, learned senior counsel relied on

the following judgments: -

1) Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh1

2) Lt.Col.Prasad Shrikant Purohit Vs State of Maharashtra2

3) Sardar Sardul Singh Caveeshar Vs. State of Maharashtra3

16. In Gudikanti Narasimhulu and Others' case the Apex Court held

that -

"Having grasped the core concept of judicial discretion and the constitutional perspective in which the Court must operate public policy by a restraint on liberty, we have to proceed to see what are the relevant criteria for grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside but leave has been granted by this Court to appeal against the acquittal. What is often forgotten, and therefore, warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal."

17. In another case, in Lt. Col. Prasad Shrikant Purohit Vs State of

Maharashtra, it is held that-

"The law in regard to grant or refusal of bail is very well settled.

The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having

(1978) 1 Supreme Court Cases 240

2018 (11) Supreme Court Cases 458

AIR 1965 SC 682

committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."

18. Further in Sardar Sardul Singh Caveeshar's case it is held that -

"The essence of conspiracy is, therefore, that there should be an agreement between persons to do one or other of the acts described in the section. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. There is no difference between the mode of proof of the offence of conspiracy and that of any other offence: it can be established by direct evidence or by circumstantial evidence. But s. 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the acts done by one are admissible against the co-conspirators. The said section reads:

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."

This section, as the opening words indicate, will come into play only when the Court is satisfied that there is reasonable ground to

believe that two or more persons have conspired together to commit an offence or an actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy before his acts can be used against his co-conspirators. Once such a reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. The evidentiary value of the said acts is limited by two circumstances, namely, that the acts shall be in reference to their common intention and in respect of a period after such intention was entertained by any one of them.

The expression "'in reference to their common intention" is very comprehensive and it appears to have been designedly used to give it a wider scope than the words "in furtherance of" in the English law ; with the result, anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indicated by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact only "as against each of the persons believed to be so conspiring as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. It can only be used for the purpose of proving the existence of the conspiracy or that the other person was a party to it. It cannot be used in favour of the other party or for the purpose of showing that such a person was not a party to the conspiracy. In short, the section can be analysed as follows :

(1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy ; (2) if the said condition is fulfilled, anything said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) anything said, done or written by him should have been said, done or written by him after the intention was formed by any one of them ; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it ; and (5) it can only be used against a co-conspirator and not in his favour;"

19. Learned senior counsel heavily relied on the judgment of the

Hon'ble Supreme Court in Sardar Sardul Singh Caveeshar's case,

cited supra, wherein the Apex Court has considered that the

ingredients of Section 10 of the Indian Evidence Act has to be taken

into consideration read with Section 120-A of IPC. Learned senior

counsel has submitted that as per the observations of the

Honourable Apex Court, Section 10 of the Indian Evidence Act will

only come into play, when the Court is satisfied that there is

reasonable ground to believe that two or more persons have

conspired together to commit an offence or an actionable wrong, that

is to say, there should be prima facie evidence that a person was a

party to the conspiracy before his acts can be used against his co-

conspirators. Once such reasonable ground exist, anything said,

done or written by one of the conspirators in reference to the common

intention, after the said intention was entertained, is relevant against

the others, not only for the purpose of proving the existence of the

conspiracy but also for proving that the other person was a party to

it. Thus, to prove the existence of conspiracy, the evidentiality of

said act is limited by two circumstances namely the act shall be in

reference to their common intention and in respect of a period after

such intention was entertained by any one of them.

20. Contention of the learned senior counsel is that in the instant

case, undoubtedly there are allegations against the petitioner that he

participated in the offence. Nevertheless, there is no material to show

that the petitioner has participated in the offence. The main

allegation is that the petitioner has destroyed the evidence

subsequent to the incident. Hence, the petitioner cannot be

implicated by invoking Section 10 of the Indian Evidence Act read

with 120-B of IPC.

21. Replying to the contentions and submissions made by the

learned senior counsel appearing for the petitioner, the Special Public

Prosecutor appearing for the respondent-CBI strongly controverting

the same, submitted that the petitioner was main supporter of the

crime and prima facie there is sufficient material on record to prove

his involvement in the alleged offence. It is thus obvious that the

nature of the charge is the vital factor and the nature of the evidence

also is pertinent, the court has also to consider

the likelihood of the petitioner interfering with the witnesses for the

prosecution and otherwise involvement of the process of justice. In

the instant case in order to prove the prima facie case against the

petitioner, the prosecution has mainly relied on the statement made

by A4 under 164 (1) Cr.P.C.

22. During the course of investigation, it came to the light that the

accused (A5)/the petitioner herein on the date of offence i.e. on

15.03.2019 visited the house of the deceased at about 6.30a.m., on

receipt of the information of the death. There are facts and

circumstances that he participated in the conspiracy by propagating

that said YS Vivekananda Reddy/deceased died in view of heart

attack and contacted with Circle Inspector of Pulivendula to reach

the house of deceased to control the mob, the theory of heart attack

was allegedly propagated and there are evidences that the

petitioner/accused actively participated in the destruction of scene of

offence, by way of cleaning bath room, bed room and getting the

wounds cleaned with the help of compounder Shri Gajjala Jaiprakash

Reddy and others. Thereafter he got bandaged on the said wounds of

the deceased to hide the same in pursuance of the conspiracy.

During the course of investigation, it is further found that the room

was bolted inside while cleaning and bandaging were going on as per

the directions of the petitioner. There is also evidence that one

month prior to the incident, the petitioner conspired with the other

accused by offering huge remuneration. Further investigation

discloses that the accused has scolded the Circle Inspector-

Shankaraiah to keep mum and also instructed that they have to

manage as if it was a heart attack and blood vomiting. In view of the

above, it clearly found that the petitioner was involved in the

conspiracy of murder and destruction of the evidence at the scene of

crime.

23. Learned Special Public Prosecutor further contended that the

petitioner/accused is found involved in influencing the vital

witnesses and inducing them during investigation and his

involvement was found in the larger conspiracy of murder and

destruction of scene of crime. He further submitted that CBI has

already filed an application under section 439(2) of Cr.P.C. for

cancellation of bail granted to T.Gangi Reddy (A1) on the ground that

he was found influencing and threatening the vital witnesses during

the investigation and the same was dismissed by the court below on

the ground that the bail is granted under section 167(2) of Cr.P.C.

Further submitted that investigation is still continuing and they have

filed charge sheet against some of the accused and in view of the

same, if bail is granted in favour of the petitioner, he may influence

the other witnesses.

24. This Court perused the order passed by the court below in

Crl.M.P. No.917 of 2021, dated 21.12.2021. Based on the material

on record, the court below has formulated the following issues.

"40. Now the point for consideration is whether the petitioner is liable to be enlarged on bail and in order to determine this aspect the necessary points to be considered are -

A) Whether the petitioner is entitled for bail on health ground? B) Whether there is prima facie evidence of conspiracy? C) Whether there is a chance of tampering with the evidence or whether the petitioner will evade and escape in order to avoid prosecution?"

25. Court below has considered the facts extensively both on merits

and legal submissions, while answering the said issues and accordingly

dismissed the bail application filed by the petitioner.

26. Learned senior counsel appearing on behalf of the petitioner has

raised a new ground that Section 10 of Indian Evidence Act would not

attract to implicate the petitioner under Section 120-B of IPC in the

instant case.

27. No doubt learned senior counsel, relying on the observations made

by the Apex Court in Sardar Sardul Singh Caveeshar's case, cited supra,

contended that without there is any reasonable ground or evidence to

believe that involvement of the persons in an incident, the co-

conspirator's statement cannot be considered automatically. However,

said criteria can be taken at the time of trial but it cannot be taken as a

ground for granting bail. While considering the bail applications,

detailed examination of the evidence and elaborate documentation of the

merits of the case is not required to be looked into. Yet a court dealing

with the bail application should be satisfied as to whether there is a

prima facie case, but exhaustive exploration of the merits of the case is

not necessary. The grant or rejection of bail is only to be considered

basing on the facts and circumstances of each case. If there is any

technicality, it can be considered at the time of trial, not at the time of

considering the bail application. Therefore, basing on the gravity and

seriousness of the case, the court below has rightly rejected the bail

application of the petitioner.

28. In view of the facts and circumstances narrated above and the

investigation is at the crucial stage, this court is not inclined to

enlarge the petitioner on bail and the same is liable to be dismissed.

29. Accordingly, the Criminal Petition is dismissed.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

_______________________ JUSTICE D.RAMESH

Date: 17 .01.2022 Pnr

THE HONOURABLE SRI JUSTICE D.RAMESH

CRIMINAL PETITION No.7550 Of 2021

Dated 17.01.2022

Pnr