Godela Siva vs The State Of A.P.,
2023 Latest Caselaw 2505 AP

      THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

             CRIMINAL APPEAL NO.1170 OF 2010

JUDGMENT:-

      This Criminal Appeal is filed by the appellant, who was the

Accused No.1 (A.1) in Sessions case No.58 of 2009, on the file of

IV   Additional   District   &   Sessions   Judge,   Visakhapatnam

("Additional Sessions Judge" for short), challenging the judgment,

dated 14.09.2010, where under the learned Additional Sessions

Judge found the A.1/present appellant along with A.2 guilty of the

charge under Section 411 of the Indian Penal Code ("I.P.C." for

short) in alternative to Section 379 of I.P.C., convicted them

under Section 235(2) of the Code of Criminal Procedure ("Cr.P.C."

for short) and after questioning them about the quantum of

sentence, sentenced them to suffer rigorous imprisonment for two

years each. The learned Additional Sessions Judge found the

present appellant and A.2 not guilty of the charges under Sections

302 and 379 of I.P.C. and accordingly, acquitted them under

Section 235(1) of Cr.P.C. Felt aggrieved of the same, the

unsuccessful A.1 with regard to the charge under Section 411 of

I.P.C. filed the present Criminal Appeal.
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      2)      The parties to this Criminal Appeal will hereinafter be

referred to as described before the trial Court for the sake of the

convenience.

      3)      When this appeal is coming for hearing, the Registry

placed information that insofar as A.2 is concerned, he did not file

any appeal.

      4)      The Sessions Case No.58 of 2009, on the file of IV

Additional District & Sessions Judge, Visakhapatnam, arose out of

a committal order passed in P.R.C.No.1 of 2008, on the file of III

Metropolitan magistrate, Visakhapatnam.

      5)      The State, represented by the Inspector of Police,

Gopalapatnam Circle, Visakhapatnam city, filed charge sheet in

Crime No.48 of 2007 of Pendurthi Police Station, alleging in

substance that A.1 is a private electrician and he was attending to

the electrical works and repairs of the shop of one Penumatsa

Balarama Raju (hereinafter will be referred to as "deceased").

Taking advantage of the same, the deceased was visiting the

house of A.1 and meeting the wife of A.1 in his absence. A.1 was

suspecting that the deceased had illegal contact with his wife and

decided to do away the life of the deceased. He sought the

assistance of A.2 in the commission of offence. In pursuance of

their plan, A.1 and A.2 took the deceased in an Auto bearing

No.A.P.31W 7853 of A.2, to a newly laid VUDA Road at Arilova on
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03.02.2007

at 10-30 p.m., on the pretext of supplying of ladies to

the deceased for his sexual intercourse. There, A.1 picked up a

stone and crushed the head of the deceased and also cut the

throat of the deceased with a blade and A.2 also slit the throat of

the deceased with a blade and later they committed theft of gold

chain, gold bracelet, gold ring and Nokia cell phone from the

deceased and shared the booty between them. Earlier the

deceased was sitting in front of his shop, P.W.1 and others were

attending to work the shop. Later while the deceased was found

missing on the night of 03.02.2007, Smt. P. Subbalaxmi, wife of

deceased, lodged a complaint with Pendurthi Police, who

registered the same as F.I.R. under man-missing case and on the

next day on coming to know lying of dead body near the newly

laid VUDA road at Arilova, P.W.1 and others went and noticed the

dead body of the deceased and lodged another complaint. Basing

on the complaint of P.W.1, Pendurthi Police altered section of law

and took up investigation and visited the scene of offence and

seized Material Objects there. Later, he held inquest over the

dead body in the presence of panch witnesses and sent the same

for autopsy. During the course of investigation, the Inspector of

Police arrested A.1 on 10.05.2007 at Gajuwaka bus stop, NAD

Kotha Road Junction, in the presence of panchas. The Inspector

of Police seized gold chain from the possession of A.1 and he also

seized blood stained pant and T-shirt from his house in the

presence of panchas under cover of mediators' report. In

pursuance of the confession of A.1, he also arrested A.2 and

seized gold bracelet and blood stained clothes from the house of

A.2 and also the auto used in the commission of offence from his

premises. Later, in pursuance of the statement of A.2, a gold ring

of the deceased with image of Lord Venkateswara was seized

from P.W.4 to whom he pledged the same and also Nokia cell

phone from P.W.5 to whom A.2 sold, belonging to the deceased

and these gold ring and Nokia cell phone were seized in the

presence of panchas. Later, in the Test Identification the gold

ornaments of the deceased were identified by P.W.1 and

subsequently the Inspector of Police forwarded the Material

Objects during the course of investigation to FSL and after

completion of investigation, he laid the charge sheet.

6) The learned III Metropolitan Magistrate,

Visakhapatnam, took cognizance under Sections 302, 379 or 411

of I.P.C. and after appearance of A.1 and A.2 and after following

the procedure under Section 207 of Cr.P.C., committed the case

to the Court of Sessions under Section 209 of Cr.P.C., as the case

was exclusively triable by Court of Sessions. The Court of

Sessions, Visakhapatnam, after numbered the case as Sessions

Case made over the same to the learned IV Additional District &

Sessions Judge, Visakhapatnam. On appearance of both the

accused before the Court below, charges under Sections 302 and

379 and in alternative of 379 I.P.C., 411 of I.P.C. were framed

and explained to the accused in Telugu, for which they pleaded

not guilty and claimed to be tried.

7) In order to establish the guilt against the accused, the

prosecution before the Court below examined P.W.1 to P.W.12

and got marked Ex.P.1 to P.28 and further got marked M.O.1 to

M.O.13. Accused were examined under Section 313 of Cr.P.C.

after the evidence of the prosecution was completed, for which

they denied the incriminating circumstances. They did not let in

any defence evidence.

8) The learned IV Additional District & Sessions Judge,

Visakhapatnam, on hearing both sides and on considering the

evidence on record, found the accused not guilty of the charges

under Sections 302 and 379 of I.P.C., but, found them guilty of

the offence under Section 411 of I.P.C. and convicted them under

Section 235(2) of Cr.P.C. and after questioning the quantum of

sentence, sentenced them to undergo rigorous imprisonment for a

period of two years each for the offence under Section 411 of

I.P.C. Challenging the same, A.1 filed the present appeal. A.2

did not file any appeal according to the information placed by the

Registry.

9) The scope of this appeal is very limited one. The

prosecution did not file any appeal challenging the judgment of

acquittal under Sections 302 and 379 of I.P.C. Hence, in deciding

this appeal, the points for determination are as follows:

(1) Whether the prosecution before the Court below proved that A.1 was found in possession of the stolen property relating to the deceased as alleged?

(2) Whether the prosecution proved the charge under Section 411 of I.P.C. against A.1 beyond reasonable doubt?

Point Nos.1 and 2:-

10) Sri M. Surya Kumar, learned counsel appearing for the

appellant, would submit that the Court below having disbelieved

the case of the prosecution under Sections 302 and 379 of I.P.C.,

erroneously recorded the conviction against the appellant under

Section 411 of I.P.C. The so-called gold chain which was alleged

to be seized from the possession of appellant was planted one to

fasten criminal liability against A.1. The trial Judge did not

appreciate the case of the prosecution in proper perspective. The

trial Judge should have disbelieved the evidence of the mediators

and the investigating officer. There was a delay with regard to

missing of the deceased and the recovery of the gold ornaments

from the possession of the accused. The sentence imposed is

unduly severe. Hence, the Criminal Appeal is liable to be allowed.

11) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the learned Additional Sessions Judge rightly looked into the case

of the prosecution that P.W.1 spoken about the gold ornaments

which were wore by her husband and that she duly identified the

gold ornaments in Test Identification Parade and that she

identified the same before the Court below and that the recovery

was proved by virtue of the evidence of the investigating officer

as well as panch witnesses and that another panch witnesses

conducted Test Identification Parade and that accused did not

dispute that the gold ornaments belonged to the deceased, as

such, the learned Additional Sessions Judge rightly delivered the

judgment of conviction against the appellant. Therefore, the

Criminal Appeal is liable to be dismissed.

12) Now, I would like to refer here the evidence insofar as

charge under Section 411 of I.P.C. is concerned. P.W.1 is the

wife of the deceased and her evidence insofar as the charge under

Section 411 of I.P.C. is concerned, is that when the deceased was

found missing, he was wearing gold chain, gold bracelet and two

gold rings and he was also having a mobile phone with him. He

was also wearing Quartz watch. Out of two rings, one is with red

stone and another is having image of Lord Venkateswara. Apart

from the above, she deposed about missing of the deceased and

her lodging reports and came to know about the dead body, etc.

Her evidence is that two or three months later, she identified gold

jewellary i.e., one gold chain, gold bracelet and gold ring having

the image of Lord Venkateswara in the Junior College premises at

Pendurthi in the presence of panchas. Those items were mixed

with some other items of the similar nature. Ex.P.3 is the

mediators report prepared at the time of the identification of the

property. M.O.1 is gold chain, M.O.2 is bracelet and M.O.3 is gold

ring with Lord Venkateswara image. These items belonged to her

husband. M.O.4 is Quartz watch belonged to her husband. M.O.5

is gold ring with red stone. M.O.6 is Nokia cell phone belonged to

her husband.

13) Coming to the evidence of P.W.5, which is relevant

with regard to the charge under Section 411 of I.P.C. he deposed

that he got acquaintance with A.2. He is an Auto driver. Three

years ago he purchased a Nokia mobile phone from A2. He paid

Rs.500/- to A.2. He purchased Idea SIM card for the mobile

phone purchased by him. Two days later, police brought A.2 to his

house and enquired whether he sold any mobile phone to him. He

handed over the mobile phone i.e., M.O.6 to the police.

14) Coming to the evidence of P.W.8, the panch witness,

previously he worked as Revenue Inspector in M.R.O. Office,

Pendurthi. Presently he is working in Civil Supplies Department.

He was panch witness at the time of arrest and seizure. On

10.05.2007 at 1-00 p.m., he went to Gajuwaka bus stop in N.A.D.

junction. They noticed A.1 who was present there with a suitcase

in his hand. One Venkateswara Rao, a Panchayat Secretary was

another panch witness. Police arrested A.1 in his presence under

the cover of confession. A.1 opened the suitcase and handed over

a gold chain to the police and they seized under the cover of

Ex.P.13, the relevant portion in the confession statement. A.1 led

them to his house and produced a pant and shirt which were also

seized by the police. Police seized the same under Ex.P.14

seizurenama. M.O.1 is the gold chain, M.O.7 is the shirt and

M.O.8 is the pant. A.1 led them to Durganagar, Arilova to the

house of A.2 where they found A.2. Police arrested A.2, who

produced one gold bracelet (M.O.2) and also produced a small

pocket note book which is Ex.P.4. He also produced one pant and

shirt. M.O.9 is pant and M.O.10 is shirt. They were seized under

Ex.P.15 seizurenama for M.O.9 and M.O.10. A.2 also produced

Auto rickshaw bearing No.A.P.31W 7853 which was also covered

under Ex.P.15. A.2 led them to the house of P.W.4 to whom he

pledged M.O.3 gold ring with image of Lord Venkateswara.

Ex.P.16 is the seizure report for M.O.3. Ex.P.17 is the relevant

portion leading to recovery. From there A.2 led them to

Kobbarithota to the house of P.W.5 and P.W.5 produced M.O.6

cell phone which was sold to him by A.2. It was seized under

Ex.P.18 seizure report.

15) Coming to the evidence of P.W.12, the investigating

officer, his evidence with regard to the seizure is that on

10.05.2007 he arrested A.1 at NAD bus stop in the presence of

panchas, P.W.8 and Venkata Rao. He seized M.O.1 from A.1 in

the presence of panchas, P.W.8 and D. Venkata Rao. Ex.P.13 is

the relevant portion in the confession leading to recovery. A.1

produced M.O.7 and M.O.8 from his house under Ex.P.14 seizure

report. A.1 led them to the house of A.2 where they found A.2

and arrested him. They seized M.O.2 from him. They also seized

M.O.9 and M.O.10. He also seized Auto bearing No.A.P.31W 7853.

He seized Ex.P.4 pocket note book under Ex.P.15. A.2 led them

to the house of P.W.4 and they seized M.O.3 gold ring under

cover of Ex.P.16. Ex.P.17 is the relevant portion leading to

recovery. A.2 led to the house of P.W.5 where they recovered

M.O.6 cell phone belonged to the deceased.

16) Coming to the evidence of P.W.9, another panch

witness, he supported the case of the prosecution with regard to

conducting of test identification parade involving M.O.1 to M.O.3.

So, his evidence is that on 11.05.2007 at request of police, he

conducted test identification of property. One D. Rama Rao is

another panch witness. It was held at the premises of Junior

College, Pendurthi. P.W.1 identified M.O.1 to M.O.3. Some other

items were also mixed with M.O.1 to M.O.3. Ex.P.13 is

identification proceedings.

17) This Court would like to make it clear that insofar as

M.O.2, M.O.3 and M.O.6 are concerned, the prosecution alleged

that they were seized pursuant to the information given by A.2.

Insofar as present appellant is concerned, the case of the

prosecution is that the investigating officer seized M.O.1 from the

physical possession of A.1 at the time of arrest. Insofar as the

evidence of P.W.1 is concerned, she identified M.O.1 which is the

gold chain in the test identification parade. Her evidence is not

challenged in the cross examination. She deposed in cross

examination that somebody scribed Ex.P.3 panchas themselves

asked her to identify the property. She has no acquaintance with

them. So, with regard to the identification made by P.W.1 that

M.O.1 belonged to her husband, her evidence was not under

challenge in the cross examination. Her evidence has

corroboration from the evidence of P.W.9, the panch witness, who

conducted test identification parade by requesting P.W.1 to

identify M.O.1 to M.O.3 when they were mixed with other articles.

There remained nothing in the cross examination of P.W.9 also

except giving suggestions which he denied. Therefore, there is

consistency in the evidence of P.W.1 and 9 with regard to the fact

that P.W.1 identified M.O.1 in the test identification parade when

it was mixed with other items. Her evidence that M.O.1 belonged

to the deceased was not challenged in her cross examination.

18) Coming to the evidence of P.W.8 and P.W.12, their

evidence consistently establishes the recovery of M.O.1 from the

possession of A.1 when he was arrested at NAD junction,

Visakhapatnam. Coming to the evidence of P.W.8, the panch

witness, during cross examination he deposed that they noticed

A.1 at the second bus stop. The description of M.O.1 was not

given in the confessional statement. He denied that he is

deposing false.

19) It is to be noticed that it is not a case where P.W.1

lodged any report especially relating to the description of gold

ornaments which were in the custody of her husband at the time

of his missing. She lodged two reports stating that the deceased

was found missing. So, the major concern was about missing of

her husband. There was no possibility to make descriptive

particulars of gold ornaments. Therefore, when A.1 was arrested

by the police in the presence of panch witnesses and when they

found a gold chain in the suitcase of A.1, the seizurenama need

not contain the descriptive particulars of M.O.1. Hence, there

remained nothing in the course of cross examination of P.W.8 and

P.W.12 to disbelieve their testimony. The evidence of P.W.8 and

P.W.12 is fully convincing with regard to the arrest of A.1 and

recovery of M.O.1.

20) The evidence of P.W.4 is relating to the pledging of

the gold ornaments by A.2. The evidence of P.W.5 is relating to

pledging of mobile phone by A.2. So, the crucial evidence as

against the present appellant with regard to the allegation that he

possessed M.O.1, gold chain of the deceased as stolen property is

that of evidence of P.W.1, P.W.8, P.W.12 and P.W.9-the panch

witness for conducting test identification parade. There remained

nothing in their cross examination to disbelieve their testimony.

The investigating officer has no reason to plant M.O.1 as against

the appellant and to fabricate a case. The learned IV Additional

District & Sessions Judge rightly appreciated the evidence on

record and rightly found guilty of the present appellant under

Section 411 of I.P.C.

21) Having regard to the above, I do not see any reason

to interfere with the conviction and sentence imposed against the

appellant.

22) In the result, the Criminal Appeal is dismissed.

23) The Registry is directed to take steps immediately

under Section 388 Cr.P.C. to certify the order of this Court to the

trial Court on or before 02.05.2023 and on such certification, the

trial Court shall take necessary steps to carry out the sentence

imposed against the appellant/A.1 and to report compliance to

this Court.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 27.04.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1170 OF 2010

Registry to circulate a copy of this judgment to the Court below on or before 02.05.2023.

Date: 27.04.2023

PGR