Andhra Pradesh High Court - Amravati

M.S Prasadesinaidu vs State Of Ap on 22 November, 2022

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                                                      IA_1_2022 in CRLA_513_2019


           HON'BLE SHRI JUSTICE U.DURGA PRASAD RAO
                                     &
           HON'BLE SHRI JUSTICE T.MALLIKARJUNA RAO

                            IA.No.1 of 2022
                                   IN
                    CRIMINAL APPEAL No.513 OF 2019

ORDER: (Per Hon'ble Sri Justice T.Mallikarjuna Rao)


   1.

The present petition is filed under Section 389(1) of Cr.P.C. seeking

to suspend the execution of the sentence dated 02.05.2019 passed

against the petitioner / AppellantNo.1 in Sessions Case No.82 of

2013 on the file of IX Additional District & Sessions Judge,

Visakhapatnam at Chodavaram and release him on bail pending

Appeal.

2. Heard Smt.C.Vasundhara Reddy, learned counsel for the

petitioner/appellant/Accused No.1 and the learned Public

Prosecutor.

3. Necessary relevant facts are stated hereunder to appreciate the

contentions of the petitioner /1st appellant and determine whether

the petitioner/appellant. No.1 is entitled to the relief as prayed for.

4. In a nutshell, the prosecution's case is that after her husband's

death, A2 fell in love with A1, eloped with him and settled at K.

Kotapadu. After marrying him, A2 left the dwakra groups to the

air. On that, the deceased K.Nagamani became the leader of all

dwakra groups. The deceased Kola Nagamani made the accused

No.2 pay back huge amounts which were said to be swallowed by

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her in the transactions relating to their Dwakra groups. Despite

the same, the accused continued their friendship with the

deceased as part of their plan to kill her. They lured the deceased

with her marriage proposal and asked her to come to Chodavaram.

During the trial, P.W.7-B.Tatababu, a van driver, testified that on

03.08.2012 he saw the deceased lastly in the company of both

accused. On 06.08.2012 at about 5.00 PM, the dead body of the

deceased was found floating in the canal near Sudivalasa. On

10.08.2012 at 10.00 AM, A.1 confessed before P.W.1 that he along

with A.2 committed the murder of Nagamani. In pursuance of

confession, P.W.1 produced A.1 before the P.W.11. They went to

the house of accused, where A.2 handed over M.Os.1 to 4,

belongings of the deceased to the police under a cover of a

mediator report.

5. The learned counsel appearing for the petitioner/A.1 contends that

as per the evidence of P.W.7, he saw the deceased in the accused's

company on 03.08.2012. There is no proximity between the last

seen alive and the tracing of the dead body. There is a time gap of

3 days. The whole thrust of the argument of Learned Counsel for

the petitioner is that this Court is pleased to grant bail to A.2 in

I.A. No.1 of 2021 dated 23.03.2021, and the case of the applicant

stands on a similar footing. Making the above submissions, the

learned counsel for the petitioner prayed to allow the petition on

parity. In this regard, she relied on a decision of the Apex Court in

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Sham Lal Vs. State of Haryana 1 , wherein the Apex Court

observed that:

"the sentence passed on all other three accused- appellants have been suspended, and they have been ordered to be released on bail, and so far as the present appellant before we are concerned, cannot distinguish his case from the cases of other accused- appellants. So far as the role assigned to them in the incident is concerned".

6. As against this, the learned Public Prosecutor submits that

considering the gravity of the offence, the Court may not exercise

discretion in favour of the applicant under Section 389(1) of

Cr.P.C. There is a clear evidence to establish the motive for the

accused to commit the offence. As the prosecution established the

guilt of the petitioner/A.1, the trial court considered the

prosecution case and convicted the accused.

7. In this context, it is necessary to mention that in S.C.No.82 of

2013, A.1 and A.2 are charged for offences under Section 120-B of

I.P.C.; further, A.1 is also charged for offences under Sections 364,

302, 404 and 201 of I.P.C. They are convicted for the said offences.

8. We have given our thoughtful consideration to rival submissions

and have perused the material on record.

9. The parameters to be adopted while dealing with the application

for bail by suspension of sentence during the pendency of the

(2004) 13 SCC 469

IA_1_2022 in CRLA_513_2019

Appeal have been examined by the Apex Court in several cases.

The Apex Court in Kishori Lal v. Rupa and Ors.2 noted as follows:

"4. Section 389 of the Code deals with suspension of execu- tion of sentence pending the Appeal and release of the appel- lant on bail. There is a distinction between bail and suspen- sion of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record rea- sons in writing for ordering the suspension of execution of the sentence or order appealed against. If he is in confinement, the said Court can direct that he be released on bail or his bond. The requirement of recording reasons in writing indi- cates that there has to be careful consideration of the relevant aspects. The order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail."

10. The Apex Court in Anwari Begum v. Sher Mohammad and Anr.3

inter alia, observed as follows:

"7. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, a court dealing with the bail application should be satisfied as to whether there is a prima facie case. Still, an exhaustive exploration of the case's mer-

its is not necessary. The Court dealing with the bail

(2004)7SCC638

2005 Cri. L J 4132

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application is required to exercise its discretion in a ju- dicious manner and not as a matter of course.

8. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged with a se- rious offence."

11. Thus, the case is to be considered in light of the aforesaid Legal

position. However, we are conscious that the assignment of reasons

should not be so elaborate that the case of one of the parties has

been prejudged.

12. In sum and substance, the prosecution's case is based upon the

extra-judicial confession, last seen theory and recoveries alleged to

have been in furtherance to the confessional statement said to be

made by A.1. In the instant case, there is no direct eye witness to

the occurrence. The mainstay of the prosecution's case is that A.1

confessed to the commission of the crime before PW.1 on

10.08.2012.

13. Now with this background, it becomes necessary to advert the ob-

servations and findings of the Trial Court briefly. While appreciat-

ing the evidence of PW.1, the trial court observed that such evi-

dence could not be readily believed unless the prosecution gave a

cogent explanation as to what prompted A1 to meet PW.1 and make

such a confession.

14. The Apex Court, in a plethora of decisions, has held that there is

no absolute rule that an extra-judicial confession can never be the

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basis of a conviction. However, ordinarily, an extra-judicial confes-

sion should be corroborated by some other material.

15. There can be no dispute over the proposition that the extra-

judicial confession can be accepted and can be the basis of convic-

tion if it passes the test of credibility. The extra-judicial confession

should inspire confidence, and the Court should find out whether

other cogent circumstances on record support it. (Reference: Shaik

Yousuf v. State of West Bengal (2011) 11 SCC 754).

16. The trial court Judgment shows there is no clarity as to what

prompted A.1 to meet P.W.1 to give such a confession. Moreover, it

is significant to note that the trial court also observed in paragraph

31 on page 14 of the Judgment that P.W.1 is the witness for the

whole investigation process, which does not inspire the confidence

of the Court.

17. The prosecution examined P.W.7, a van driver, to establish that

the accused and the deceased were last seen moving together on

03.08.2012. The trial court observed that though the evidence is

vague as to how the investigation officer got knowledge that P.W.7

had seen the deceased and accused were moving together, in the

absence of any cross-examination doubting the same, it is not fatal

to the case of the prosecution. It transpires from the record that

P.W.7 is the sole witness to establish the last seen theory, and he is

a chance witness unknown to A.1 and the deceased.

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18. At this stage, we may profitably refer to the decision of the Apex

Court in State of U.P. v. Satish 4 , wherein it was held that the

principle of last seen comes into play where the time-gap between the

point of time when the accused and the deceased were last seen alive and

when the deceased is found dead is so small that possibility of any person

other than the accused being the author of the crime becomes impossible.

19. The other circumstances relied on by the prosecution is the recov-

ery of belongings of the deceased from A.2 in pursuance of the con-

fession made by A.1 in the presence of mediators. Our attention is

drawn to the observations made by the trial court that the investi-

gation agency is supposed to have got a test identification parade

conducted through P.W.7 to identify the accused. It also observed

that the investigation agency was supposed to have secured re-

spectable inhabitants of the locality from where M.Os. 1 and 2 were

recovered in terms of Section 100(5) Cr.P.C. The investigation agen-

cy secured the presence of P.W.1 only at the time of recovery of

M.O.1 and M.O.2; the same is undoubtedly against the spirit of

Section 100(5) Cr.P.C.

20. It would be apposite to extract the observations made by this

Court in the order dated 23.03.2021 in I.A. No.1 of 2021 while con-

sidering the bail application of A2.

".... PW.7 is the sole witness with regard to last scene theory is a chance witness who was un-

(2005) 3 SCC 114

IA_1_2022 in CRLA_513_2019

known to the petitioner and A.1; there was no effort to hold test identification, parade during the inves- tigation, and there is nothing on record to disclose how the said witness could identify the petitioner and co-accused during the trial. As noted by the trial judge, the alleged recovery of stolen articles also requires deeper scrutiny as there were irregu- larities in holding the test identification parade.

21. What emerges from the above is that there is no material distinc-

tion between the case of A.2 and the case of the present applicant.

The case of the applicant stands on a similar footing except the

confession said to be made by A.1 before P.W.1. For what has been

observed hereinabove, we are of the view that a good arguable case

is made out in favour of the petitioner, and the petitioner estab-

lished the grounds to grant bail.

22. At this Juncture, we make it clear that whatever views and opin-

ions we have expressed concerning the facts are discernable from

the observations of the Trial Court. They are tentative, and these

are only meant to consider the present application, and none of the

observations herein by itself would operate prejudicially to the in-