Harijana Uligappa And Another, vs State Of A.P., Rep By Pp.,
2023 Latest Caselaw 2840 AP

       HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                               ****

CRIMINAL REVISION CASE No.733 OF 2008

Between:

1) Harijana Uligappa, S/o late Ramappa, Aged about 42 years, R/o Chinna Heta Village, Holagunda Mandal, Kurnool District.

2) Harijana Mallappa, S/o Ampaiah, Aged about 45 years, R/o Chinna Heta village, Holagunda Mandal, Kurnool District.

.... Petitioners/Accused.

Versus

1) Circle Inspector of Police, Alur Police Station, Kurnool District.

2) The State of Andhra Pradesh through Public Prosecutors, High Court of Andhra Pradesh.

... Respondents.

DATE OF ORDER PRONOUNCED : 04.05.2023

SUBMITTED FOR APPROVAL:

HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

1. Whether Reporters of Local Newspapers may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the Fair copy of the order? Yes/No

___________________________ A.V.RAVINDRA BABU, J

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

+ CRIMINAL REVISION CASE No.733 OF 2008 % 04.05.2023 # Between:

1) Harijana Uligappa, S/o late Ramappa, Aged about 42 years, R/o Chinna Heta Village, Holagunda Mandal, Kurnool District.

2) Harijana Mallappa, S/o Ampaiah, Aged about 45 years, R/o Chinna Heta village, Holagunda Mandal, Kurnool District. ...Petitioners/Accused.

Versus

1) Circle Inspector of Police, Alur Police Station, Kurnool District.

2) The State of Andhra Pradesh through Public Prosecutors, High Court of Andhra Pradesh.

... Respondents.

! Counsel for the Petitioners :

Smt. G. Padmavathi Srinivas, representing Sri J. Prabhakar.

^ Counsel for the Respondents : Public Prosecutor. < Gist:

> Head Note:

? Cases referred:

(1) MANU/SC/2012/1995: 1995 Supp. (4) SCC 259

(2) 1997(4) R.C.R. (Criminal) 441 : MANU/SC/1319/1997 :

(1997)8 SCC 158

(3) 1998(3) R.C.R. (Criminal) 555 : MANU/SC/0436/1998 :

(1998)6 SCC 10

(4) 2003 (4) R.C.R. (Criminal) 238 : 2004 (1) Apex Criminal 471 : MANU/SC/0595/2003 : (2003) 8 SCC 180

(5) MANU/AP/2521/2022

This Court made the following:

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

CRIMINAL REVISION CASE NO.733 OF 2008

ORDER:-

This Criminal Revision Case is filed by the petitioners, who

were the appellants in Criminal Appeal No.23 of 2007, on the file

of II Additional Sessions Judge, Kurnool at Adoni ("Additional

Sessions Judge" for short), challenging the judgment, dated

13.05.2008, whereunder the learned Additional Sessions Judge,

dismissed the Criminal Appeal confirming the conviction and

sentence imposed against the appellants in C.C.No.38 of 2003, on

the file of Judicial Magistrate of First Class, Alur, for the offences

under Sections 304-A and 201 of the Indian Penal Code ("I.P.C."

for short).

2) The parties to this Criminal Revision Case will

hereinafter be referred to as described before the trial Court for

the sake of the convenience.

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

Alur, filed a charge sheet in Crime No.43 of 2002 of Holagunda

Police Station, alleging the offences under Sections 304-A and

201 of I.P.C.

4) The case of the prosecution, in brief, as set out in the

charged sheet is as follows:

(i) A.1 and A.2 are the brothers and they are residents of

Chinnaheta village, Holagunda Mandal. One Boya Mallappa, S/o

Boya Kesanna and one Boya Ayyappa, S/o Boya Kesanna

(hereinafter will be referred to as "deceased 1 and 2") were also

brothers and they were residents of Santhakudlur village, Adoni

Mandal. Their dead bodies were recovered from Cantor trench,

near Chakaligutta of Peddaheta village, Holagunda Mandal.

(ii) Deceased 1 and 2 were doing arrack business since

about one year prior to their death. Ten days prior to 19.08.2002,

they died. They used to go to Hadligi village in Karnataka State to

bring the arrack sachets and used to sell the same in their village,

Santhakudluru. As usual, they went to Hadligi village to purchase

arrack sachets about 10 days prior to 19.08.2002. On 10.08.2002

or 09.08.2002 while they were returning with arrack sachets

during night time to avoid police and Excise officers, they came

near Chinnaheta village in Holagunda Mandal. On the way, they

came into contact with the electrical wire put up around the fields

of A.1 to protect his Sunflowers crop from animals. So, the

deceased 1 and 2 contacted with electricity and died on the spot.

On the next day morning, A.1 went to his fields and found two

dead bodies fallen in the fields with two bags of arrack sachets by

their side. Having noticed the dead bodies and found that they

died due to electrocution from the electric wire fenced by him, he

feared and tried to conceal the same. He disclosed the incident to

A.2 during night. Both A.1 and A.2 with an intention to screen

away the evidence of the death of deceased 1 and 2, at about 10-

00 p.m., took the two dead bodies along with two bags of arrack

sachets in a double bullock cart from the fields of A.1. They took

the dead bodies to cantor trench situated near Chakaligutta and

the fields of one Gowramma. They buried two dead bodies in the

said trench and also two bags of arrack sachets. They did not

disclose the incident to anybody till 29.08.2002.

(iii) Ten days subsequent to the burial of the dead bodies by

A.1 and A.2, rumors spread in the village that two dead bodies

were buried in the cantor trench. On that L.W.1-Reddy

Seetharami Reddy, Village Secretary and L.W.6-Talari Dodda

Basappa went to the said place on 19.08.2002 at 8-00 p.m. They

found two dead bodies and two bags of arrack sachets there.

L.W.1 gave report to Sub-Inspector of Police, Holagunda Police

Station and on his report, the Head Constable registered it as a

case in Crime No.43 of 2003 under Sections 302 and 201 of I.P.C.

suspecting that both of them were murdered. The Inspector of

Police, Aluru, during investigation found that they were not

murdered, but they died due to electrocution due to live electric

wire put up by A.1 around fields and after coming to know that

A.1 and A.2 buried the said dead bodies to screen the evidence.

(iv) On 29.08.2002 both the accused approached L.W.13-

Harijana Dasari Krishna Murthy and disclosed the facts of the case

and sought his help in the matter. Then, L.W.13 took A.1 and A.2

to the Village Secretary (L.W.12) on 30.08.2002 and produced

before him. Then, A.1 and A.2 disclosed the facts before L.W.12

and L.W.12 recorded their confession in the presence of L.W.13,

L.W.21 -Reddy Rajasekhar Reddy and L.W.22-Chakali Anjanaiah

and produced A.1 and A.2 before Inspector of Police along with

confessional statement. Then, the Inspector of Police arrested A.1

and A.2 in the presence of L.W.12, L.W.21 and L.W.22 and

accused also confessed about the offence before the Inspector of

Police. In pursuance of the confession of A.1 and A.2, electric wire

and one spade were seized under the cover of panchanama in the

presence of panch witness. Thereafter, A.1 and A.2 were sent for

remand. The Medical Officer, who conducted autopsy on the dead

bodies of deceased 1 and 2, opined that the cause of death was

consistently due to electric shock. Therefore, for the negligent act

of A.1 in putting electricity wire around the fields, deceased 1 and

2 died by coming into contact with wire and both the accused with

an intention to screen the death of the deceased 1 and 2 from

negligent act of A.1, buried two dead bodies without informing to

anybody, as such, A.1 rendered himself for the offence punishable

under Section 304-A of I.P.C. and further A.1 and A.2 rendered

themselves for the offence under Section 201 of I.P.C.

5) The learned Judicial Magistrate of First Class, Alur,

took cognizance for the offences under Section 304-A of I.P.C.

against A.1 and Section 201 of I.P.C. against both A.1 and A.2

and issued summons to them. On appearance of the accused

before the Court below and as it was a summons procedure, both

of them were examined under Section 251 of Cr.P.C. for which

they denied the allegations in the case of the prosecution, pleaded

not guilty and claimed to be tried.

6) To bring home the guilt against the accused before

the Court below, the prosecution examined P.W.1 to P.W.20 and

got marked Ex.P.1 to Ex.P.21 and M.O.1 and M.O.2. After closure

of the evidence of the prosecution, accused were examined under

Section 313 of Cr.P.C., for which they denied the incriminating

circumstances. They did not let in any defence evidence.

7) The learned Judicial Magistrate of First Class, Alur, on

hearing both sides and on considering the oral as well as

documentary evidence, found A.1 guilty of the offence under

Section 304-A of I.P.C. and further found A.1 and A.2 guilty of the

offence under Section 201 of I.P.C. and convicted them under

Section 255(2) of Cr.P.C. and after questioning them about the

quantum of sentence, sentenced A.1 to undergo rigorous

imprisonment for one year and to pay a fine of Rs.300/-, in

default to suffer simple imprisonment for one month for the

offence under Section 304-A of I.P.C. and further sentenced A.1

to undergo rigorous imprisonment for four months and to pay a

fine of Rs.200/-, in default to suffer simple imprisonment for 15

days for the offence under Section 201 of I.P.C. The Court below

further sentenced A.2 to undergo rigorous imprisonment for four

months and to pay a fine of Rs.200/-, in default to suffer simple

imprisonment for 15 days for the offence under Section 201 of

I.P.C. The imprisonment awarded to A.1 shall run concurrently.

Felt aggrieved of the same, the unsuccessful accused, filed

Criminal Appeal No.23 of 2007, before the II Additional Sessions

Judge, Kurnool and the learned Additional Sessions Judge

dismissed the said Criminal Appeal confirming the conviction and

sentence imposed against the appellants before the Court below.

Challenging the same, the unsuccessful appellants in Criminal

Appeal No.23 of 2007, filed the present Criminal Revision Case.

8) This Criminal Revision Case is preferred against

concurrent findings of the Court below and the learned Additional

Sessions Judge.

9) Now, in deciding this Criminal Revision Case, the point

that arises for consideration is whether the judgment, dated

13.05.2008 in Criminal Appeal No.23 of 2007, on the file of II

Additional Sessions Judge, Kurnool at Adoni, suffers with any

illegality, irregularity and impropriety and whether there are any

grounds to interfere with the same?

Point:-

10) Smt. G. Padmavathi Srinivas, learned counsel,

representing the learned counsel for the petitioners, would

contend that except the evidence of P.W.14, the Village

Secretary, regarding the alleged extra-judicial confession of the

revision petitioners, there remains nothing in support of the case

of the prosecution. According to P.W.14, Ex.P.13 extra-judicial

confession was recorded by him in the Panchayat Office. As per

Ex.P.13, it was recorded in the house of P.W.14. P.W.14 deposed

in cross examination that Ex.P.13 was recorded in the police

station. This is a serious infirmity in the case of the prosecution.

Both the Courts below failed to look into this aspect overlooking

the evidence of P.W.14. P.W.9, who allegedly brought the accused

before P.W.14, did not support the case of the prosecution.

Hence, basing on Ex.P.13 extra-judicial confession, which was not

at all proved as voluntarily and ignoring the admissions made by

P.W.14, the learned Judicial Magistrate of First Class, Alur,

convicted and sentenced the accused and even the learned

Additional Sessions Judge also failed to look into this irregularity

and illegality and overlooking all these aspects, dismissed the

Criminal Appeal, as such, the Criminal Revision Case is liable to

be allowed.

11) Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, sought to support the

judgment of the learned Additional Sessions Judge on the ground

that the learned Additional Sessions Judge with tenable reasons,

upheld the case of the prosecution and P.W.14 supported the case

of the prosecution with regard to the confession of the accused

under Ex.P.13, as such, the Criminal Revision Case is liable to be

dismissed.

12) The case of the prosecution is that about 10 days

prior to noticing of the dead bodies of the deceased 1 and 2, they

were found missing. The prosecution alleged that both the

deceased used to purchase arrack sachets clandestinely and in

that process they went to Hadligi Village in Karnataka State and

while bringing the arrack sachets to avoid the police during night

they passed through the lands of A.1. Then, they came into

contact with the live electricity wire, which was fenced by A.1

clandestinely and they died and noticing the same on the next

day, A.1 contacted with A.2. Then, both of them removed the

dead bodies in a double bullock cart during night and buried the

same in cantor trench and that after 10 days thereafter, the lying

of dead bodies came to the knowledge of P.W.1 and P.W.2. The

further case of the prosecution is that later, P.W.9 brought A.1

and A.2 and produced before P.W.14 who recorded the extra-

judicial confession and after that P.W.14 produced A.1 and A.2

before the investigating officer, who again got recorded the

regular confession and in pursuance of the confession, police

party proceeded to the fields of A.1 and recovered M.O.1-wire and

M.O.2-spade, which were used in concealing the offence. The

crucial case of the prosecution is the so-called extra-judicial

confession under Ex.P.13 claimed to be recorded by P.W.14.

13) Before going to appreciate the above, it is necessary

to look into other part of evidence.

14) The substance of the evidence of P.W.1 is that on

19.08.2002 while he was in-charge of Chinnahata village, as

Village Secretary, he heard about the rumors that there are two

dead bodies buried in the ground, near Chakaligutta by the side of

Harijana Gowramma's land. There is trench canal dug by forest

department. Then, he along with the Village Servant (Talari)

Dodda Basappa proceeded to Chakaligutta and found two legs

which are appearing outside and the bodies of those two persons

were buried in the ground. He also found arrack sachets there.

He returned to the village and enquired in the village and came to

know that those two persons were of Sandhakoduru village, who

were in the habit of doing arrack business. He came to know that

those persons as Boya Mallappa and Boya Ayyappa. With those

particulars, he went to the police station and presented Ex.P.1 to

police. The Sub-Inspector of Police accompanied him to the scene

of offence where the dead bodies were found. Police observed the

dead bodies. Inquests were held on the dead bodies. Firstly, the

inquest was conducted on the dead body of Boya Mallappa and

thereafter, the inquest was conducted on the dead body of Boya

Ayyappa. Ex.P.3 and Ex.P.4 are the inquest reports.

15) P.W.2, the Village Talari, deposed in support of the

evidence of P.W.1 with regard to rumors about two dead bodies

which were buried and his accompanying to P.W.1 to the place

where the dead bodies were found, etc.

16) P.W.3 is father of deceased 1 and 2, who testified that

both the deceased are his sons and their names are Boya

Mallappa and Ayyappa. Mallappa is his third son and Ayyappa is

his forth son. Two years back his two sons were not found for

some days and he searched for them for 10 or 15 days and

finally, near Chinna Yatagutta, the dead bodies of their sons were

found. She identified the same.

17) The prosecution by the evidence of P.W.1 and P.W.2

established the manner of the incident coming to the knowledge

of P.W.1 and that P.W.1 and P.W.2 having visited the dead bodies

and having identified the particulars, lodged Ex.P.1. P.W.3

identified that the dead bodies were of his sons. The prosecution

further examined P.W.16, the panch witness, to speak about the

inquest over the dead bodies of Boya Mallappa and Ayyappa and

further examined P.W.19, the concerned Mandal Revenue officer,

to speak that the inquest was conducted over the dead bodies of

the deceased. So, by virtue of the evidence of P.W.1, P.W.2,

P.W.16 and P.W.19-Mandal Revenue Officer as well as the

evidence of the Inspector-P.W.18, the identities of the dead

bodies were established and that the police conducted inquest

over the dead bodies of the deceased. What is apparent from the

case of the prosecution as evident from Ex.P.2 and Ex.P.3,

inquest reports, is that two inquestnamas concluded that the

death of the deceased 1 and 2 was of homicidal. By then, as

investigating officer did not get the opinion of the postmortem

examination. Therefore, by the time of conducting inquest over

the dead bodies, the investigating officer was under the

impression that the death of the deceased was of due to homicide

and for that even the F.I.R. was registered under Section 302 and

201 of I.P.C. and it is altogether a different aspect that after so-

called extra-judicial confession of the accused under Ex.P.13, the

section of law was altered into Section 304-A and 201 of I.P.C.

18) Admittedly, P.W.4, P.W.5, P.W.6, P.W.8, P.W.9,

P.W.10, P.W.11, P.W.12 and P.W.13, did not support the case of

the prosecution.

19) According to P.W.4, he live by Talari. He knows P.W.3

and his wife. He does not know the accused. He does not know

anything about this case. He was not examined by the police.

Prosecution got declared him as hostile and during cross

examination, he denied that he stated to the police as in Ex.P.4

(Section 161 of Cr.P.C. statement).

20) According to P.W.5, he does not know the deceased

Ayyappa and Mallappa. He did not come to know about the death

of the deceased. He was not examined by police. The prosecution

got declared him as hostile and during cross examination, he

denied that he stated before police as in Ex.P.5 (Section 161 of

Cr.P.C. statement).

21) According to P.W.6, he does not know whether

Uligappa-A.1 raised Sunflower crop and erected fencing with

electrical wire around his crop to save his crop from wild animals.

He does not know anything about the case. He was not examined

by the police. The prosecution got declared him as hostile and

during cross examination, he denied that he stated before police

as in Ex.P.6 (Section 161 of Cr.P.C. statement).

22) P.W.8 deposed that he did not state anything to the

police about the rumors with regard to the death of two persons

in the village by coming into contact with electric wire. During

cross examination by the learned Assistant Public Prosecutor, he

denied that he stated before police as in Ex.P.7 (Section 161 of

Cr.P.C. statement).

23) P.W.9 deposed that A.1 and A.2 never came to him

and never narrated anything about the case. He also never

produced A.1 and A.2 before the Village Secretary. He does not

know whether L.W.12-Village Secretary recorded any statement

from the accused. He was never examined by the police. Learned

Assistant Public Prosecutor got treated him as hostile and during

cross examination, he denied that he stated before police as in

Ex.P.8 (Section 161 of Cr.P.C. statement) and that he is deposing

false.

24) P.W.10 deposed that he never advised A.1 not to

fence with electric wire to protect the Sunflower crop as it is

dangerous to human being. He does not know whether A.1 used

to fence his field with electrical wire to protect his Sunflower crop.

He was not examined by the police. During cross examination by

the learned Assistant Public Prosecutor, he denied that he stated

before police as in Ex.P.9 (Section 161 of Cr.P.C. statement) and

that he is deposing false.

25) According to P.W.11, he does not have any land

adjacent to the land of A.1 and A.2, but, his land is situated

faraway to their land. He does not know anything about the case.

He denied during the cross examination by the learned Assistant

Public Prosecutor that he stated before police as in Ex.P.10

(Section 161 of Cr.P.C. statement) and that he is deposing false.

26) According to P.W.12, he does not know anything

about the case. The prosecution got declared him as hostile and

during cross examination by learned Assistant Public Prosecutor,

he denied that he stated before police as in Ex.P.11 (Section 161

of Cr.P.C. statement).

27) P.W.13 deposed that he has Ac.4-00 cents of land.

He knows A.1 and A.2. A.1 and A.2 never informed him that they

have put an electrical wire around their land as fencing and they

never informed him about any incident happened due to electrical

wife. He also never advised A.1 and A.2 to approach P.W.9. He

was never examined by the police. The prosecution declared him

as hostile by the learned Assistant Public Prosecutor, during cross

examination he denied that he stated before police as in Ex.P.12

(Section 161 of Cr.P.C. statement).

28) The hostility of the above prosecution witnesses is

proved by virtue of the evidence of P.W.18, the investigating

officer, who deposed that P.W.4 to P.W.6 and P.W.8 to P.W.13

stated before him as in Ex.P.4 to Ex.P.12 (Section 161 of Cr.P.C.

statements respectively). What the prosecution was able to

establish by virtue of the above answers from the mouth of

P.W.18 is that the above said witnesses exhibited hostile attitude

towards the case of the prosecution. It does not mean that the

prosecution case is true. Therefore, their evidence is of no use to

the case of the prosecution.

29) It is no doubt true that by virtue of the evidence of

P.W.20, the medical officer, that he conducted postmortem

examination over the dead body of Deceased No.1-Boya

Mallikarjuna @ Mallappa and further the dead body of Deceased

No.2-Boya Ayyappa. He spoken about the superficial lacerated

injuries two in number on the dead body of the deceased No.1

and blacking of palm of right hand of deceased No.2 and

ultimately his evidence is that the cause of death is due to

electrocution.

30) Admittedly, none of the witnesses spoke to the fact

that A.1 arranged live electrical wire around his lands. So, the

crucial evidence relied upon by the prosecution is that of the

evidence of P.W.14, the Panchayat Secretary, for recording

Ex.P.13, the extra-judicial confession of the accused and further

the case of the prosecution is that on production of A.1 and A.2

by P.W.14 at the police station, investigating officer recorded

another confession under Ex.P.14 which leads to the recovery of

M.O.1 and M.O.2. This is the evidence available before the Court

below in support of the case of the prosecution.

31) Before going to appreciate the evidentiary value of

Ex.P.13, the extra-judicial confession, it is pertinent to look into

the well established precedents.

32) In Balwinder Singh v. State of Punjab 1 , the

Hon'ble Supreme Court stated the principle that an extra - judicial

confession, by its very nature is rather a weak type of evidence

and requires appreciation with a great deal of care and caution.

Where an extra-judicial confession is surrounded by suspicious

circumstances, its credibility becomes doubtful and it loses its

importance.

33) Further the Hon'ble Supreme Court in Pakkirisamy

v. State of Tamil Nadu2 held that it is well settled that it is a

rule of caution where the court would generally look for an

independent reliable corroboration before placing any reliance

upon such extra - judicial confession.

34) Again the Hon'ble Supreme Court in the case of

Kavita v. State of Tamil Nadu3 held that there is no doubt that

conviction can be based on extra judicial confession, but it is well

MANU/SC/2012/1995: 1995 Supp. (4) SCC 259

1997(4) R.C.R. (Criminal) 441 : MANU/SC/1319/1997 : (1997)8 SCC 158

1998(3) R.C.R. (Criminal) 555 : MANU/SC/0436/1998 : (1998)6 SCC 108

settled that in the very nature of things, it is a weak piece of

evidence. It is to be proved just like any other fact and the value

thereof depends upon veracity of the witnesses to whom it is

made.

35) Further the Hon'ble Supreme Court in the case of

State of Rajasthan v. Raja Ram4 stated the principle that an

extra - judicial confession, if voluntary and true and made in a fit

state of mind, can be relied upon by the court. The confession will

have to be proved like any other fact. The value of evidence as to

confession, like any other evidence, depends upon the veracity of

the witness to whom it has been made. The Court, further

expressed the view that such a confession can be relied upon and

conviction can be founded thereon if the evidence about the

confession comes from the mouth of witnesses who appear to be

unbiased, not even remotely inimical to the accused and in

respect of whom nothing is brought out which may tend to

indicate that he may have a motive of attributing an untruthful

statement to the accused.

36) This Court in D. Jagaidsh vs. the State of A.P.5 in

Criminal Appeal No.29 of 2016, dated 15.12.2022 Division Bench

also relied upon the well established principles of the Hon'ble

2003 (4) R.C.R. (Criminal) 238 : 2004 (1) Apex Criminal 471 : MANU/SC/0595/2003 : (2003) 8 SCC 180

MANU/AP/2521/2022

Supreme Court and held at para No.29 that extra-judicial

confession is a weak piece of evidence and it requires

corroboration in all material aspects, but, if the same inspires

confidence, it can be believed to connect the accused with crime.

37) Keeping in view the above, the well established

principles, now I would like to decide as to whether the judgment,

dated 13.05.2008 in Criminal Appeal No.23 of 2007, on the file of

learned II Additional Sessions Judge, Kurnool at Adoni, is in

accordance with the well established principles and as to whether

the evidence on record would warrant the Court that Ex.P.13 can

be a basis to sustain a conviction without there being any

corroboration and it is trustworthy, etc.

38) The case of the prosecution is that A.1 and A.2 after

the police started the investigation as to how the deceased died,

approached originally P.W.13 due to fear and P.W.13 advised A.1

and A.2 to approach P.W.9 who was their relative and they

approached P.W.9 and then P.W.9 brought A.1 and A.2 before

P.W.14, as such, P.W.14 recorded the extra-judicial confession of

A.1 and A.2. As pointed out P.W.13 deposed that he never

advised A.1 and A.2 to approach P.W.9. Further P.W.9 did not

support the case of the prosecution. On the ground that they

turned hostile to the case of the prosecution, but basing on their

Section 161 of Cr.P.C. statements under Ex.P.8 and Ex.P.12 which

cannot be read in substantive evidence and which can only be

used to contradict their testimony, the case of the prosecution

cannot be upheld. So, what was the basis before the Court below

is only the evidence of P.W.14 and Ex.P.13 and further the so-

called recovery of M.O.1 and M.O.2 pursuant to the disclosure

statement under Ex.P.14.

39) In this regard, the evidence of P.W.14 is as follows:

"Presently he is working as Panchayat Secretary of

Holagunda Village. Previously he worked as Executive Officer,

Gram Panchayat, Holagunda. He knows A.1 and A.2. He knows

one Dasari Krishnamurthy (P.W.9), who was resident of

Chinnahata Village. On 30.08.2002 P.W.9 brought A.1 and A.2 to

him while he was present in Gramapanchayat Office, Holagunda.

When he enquired with A.1-Ulgappa, he stated to him that he has

got Ac.1-75 cents in between Chinnahata and Peddahata villages

and that he raised the sun-flower crop in the said land. As the

land is nearby the hill and in order to protect the crop from wild

animals, he erected an electrical wire around his land. He also

stated to him that he used to put electrical fence with electrical

wife from 8-00 p.m. to 6-00 a.m. on every day. A.1 also stated

to him that he identified two dead bodies nearby the electrical

wire by the side of said wire on 11.08.2002 morning. Then, A.1

out of fear immediately returned to the village and informed the

same to A.2, who is his brother and both of them again went to

the place of dead bodies and that A.1 and A.2 removed two dead

bodies from that place and kept them in the land and both the

dead bodies were covered with waste material. Accordingly, both

A.1 and A.2 watched the dead bodies there itself whether

anybody would identify the dead bodies, as such, A.1 and A.2

watched the dead bodies till evening. A.1 and A.2 also stated to

him that both of them returned to the house during night time

and at 10-00 p.m., night both of them took a bullock cart to the

place of dead bodies and dead bodies were loaded in the bullock

cart and took the dead bodies to the nearby hill known as Chakali

Konda and buried in the ground near the water shed i.e., trench

(Kandhakam). The arrack sachets, which were with the dead

bodies, were also brought along with the dead bodies to that

place and arrack sachets were also put it in the ground. On

19.08.2002, the dead bodies were exposing outside. The dead

bodies were identified by the people that those dead bodies were

of Santhekular village. The dead bodies were identified as

Mallappa and Ayyappa. For fear of relatives of the deceased

persons and as the police were enquiring with cause of death of

deceased persons, 10 days thereafter i.e., on 30.08.2002 both

A.1 and A.2 came to him along with P.W.9. After enquiring with

A.1 and A.2 accordingly, when he received such information from

A.1 and A.2, he produced A.1 and A.2 before the police of

Holagunda on that day on 30.08.2002. A.2 also stated before him

on 30.08.2002 as to what was stated by A.1. The C.I. of Police,

Alur was present in Holagunda police station. The police recorded

confessional statement of the accused in his presence and also in

the presence of Rajasekhar and Anjanaiah in the police station.

A.1 and A.2 were produced by P.W.9 at 2-00 p.m. and they gave

statement before him at Panchayat Office. Ex.P.13 is the

confessional statement given by A.1 and A.2 to him. Ex.P.13 was

written by him. All the contents of Ex.P.13 were read over to A.1

and A.2 and after that, he obtained signature and thumb

impression of the accused on Ex.P.13. A.1 and A.2 also gave the

similar statement before the C.I. of Police in the police station of

Holagunda in his presence and also in the presence of one

Anjanaiah and Rajasekhar Goud. The confessional statement was

reduced into writing in his presence at 3-45 p.m. on 30.08.2002.

It is Ex.P.14. The police examined him. The contents of Ex.P.14

were also read over to A.1 and A.2 and thereupon, the signature

and thumb impression of the accused were obtained on Ex.P.14."

40) During cross examination on material aspects, he

deposed that after the confessional statement given by A.1 and

A.2 at the Gram Panchayat office to him, they all proceeded to

the police station, Holagunda, where Ex.P.13 was written by him.

41) It is to be noted that originally the chief examination

of P.W.1 means that after enquiring with A.1 and A.2 and when

he received information from A.1 and A.2 as told by them, he

produced them before the office of Holagunda and C.I. of Police

recorded the confessional statement of the accused in that

context, he did not depose that he recorded the confessional

statement of A.1 and A.2 at his office. The prosecution in the

subsequent para elicited that A.1 and A.2 were produced by P.W.9

at 2-00 p.m. and they gave statement under Ex.P.13 and it was

written by him and he read over the contents to A.1 and A.2 and

after that he obtained the signature and thumb impression of the

accused on Ex.P.13. Later, he spoken about the similar statement

before the C.I. of Police after they were produced there.

42) In cross examination, he specifically stated that after

the confession given by A.1 and A.2 at the Gram Panchayat office,

they all proceeded to the police station of Holagunda where

Ex.P.13 was written by him. It means that P.W.14 written

Ex.P.13, the so-called confessional statement in the police station

only, but not at his office as spoken by him in chief examination.

The subsequent answers spoken by him in cross examination are

very clear that Ex.P.13 was separately written in a separate room

and at that time P.W.9 and A.1 and A.2 were only present. The

said room is located in northern side i.e., in the middle of the

police station. It further supports his admission as above that he

written Ex.P.13 in the police station. The further answers spoken

by him in cross examination means that at the end of Ex.P.13 and

also on the second page, his signatures are there. After his arrival

to the police station, C.I. of Police, S.I. of Police and some

constables were present. Therefore, it further means that when

P.W.9 was writing Ex.P.13 confessional statement of A.1 and A.2,

the concerned police were also present in the police station. The

above admissions made by P.W.14 means that he recorded

Ex.P.13 literally in the police station. It is quite interesting to note

that without these admissions from P.W.14 even the contents of

Ex.P.13 would leads to a conclusion that it was purportedly

written in the police station. As seen from Ex.P.13 at the

conclusion P.W.13 made a mention that after recording the

statement of A.1 and A.2, he brought them to the police station

and at 3-30 p.m. he produced them before the C.I. of police, as

such, it is the confessional statement. It is to be noticed that the

contents of Ex.P.13 itself discloses that P.W.14 produced A.1 and

A.2 before the C.I. of Police and it is also mentioned in Ex.P.13.

It is to be noticed that Ex.P.13 did not disclose that it consists of

any two parts. If really P.W.14 recorded the statement of A.1 and

A.2 under Ex.P.13, as deposed by him in chief examination at his

office, there would not have been any whisper in writing in

Ex.P.13 that he produced the accused before the C.I. of Police at

3-30 p.m. This itself indicates that Ex.P.13 was recorded in the

police station.

43) Apart from this, according to the contents in Ex.P.13

while P.W.14 was at his house in Holagunda village,

Krishnamurthy brought A.1 and A.2, as such, he recorded the

purported statement of A.1 and A.2 at his house i.e., the house of

P.W.14. As evident from the judgment of the learned Judicial First

Class Magistrate, absolutely, he did not look into the cross

examination part of P.W.14 to the effect that Ex.P.13 was

recorded in the police station. If really A.1 and A.2 disclosed the

commission of offence at the residence of P.W.14, he had no

necessity to depose that Ex.P.13 was recorded at his office. If

really it was recorded at his office as deposed by him in chief

examination, Ex.P.13 would not have contained a whisper in

writing that he produced A.1 and A.2 before the police on that

day. The learned Judicial Magistrate of First Class simply brushed

aside that the variance with regard to the place of recording

Ex.P.13 is not material.

44) It is to be noticed that the accused during cross

examination of P.W.18, the investigating officer, got suggested to

him with reference to Ex.P.14, the confession, that he did not use

the actual words which were given by the accused in the

statement. Basing on this suggestion, which was denied by

P.W.18, the learned Judicial Magistrate of First Class gave a

finding that the presence of A.1 and A.2 and P.W.9 and P.W.14 at

the police station was admitted by the accused. It is to be noticed

that even if the presence of A.1 and A.2 was admitted by them at

the time of Ex.P.14, but, Ex.P.14 is hit under Section 25 of the

Indian Evidence Act. The learned Judicial Magistrate of First Class

did not look into and absolutely ignored the admissions made by

P.W.14 during cross examination which can only mean that he

recorded Ex.P.13, extra judicial confession, in the police station

when the C.I. of Police, S.I. of Police and other police personnel

were present. He failed to look into the aspect that Ex.P.13 itself

discloses that it was written in the police station. Therefore, the

learned Judicial Magistrate of First Class ignored the crucial

admissions made by P.W.14 and further brushed aside the place

of Ex.P.13 as minor one which are not at all tenable in my

considered view.

45) It is a case where P.W.9 did not support the case of

the prosecution. The findings of the learned Judicial Magistrate of

First Class are that as P.W.9 happened to be relative of A.1 and

A.2, he deposed false. It is to be noticed that the very alleged

extra-judicial confession on the part of accused means that

accused having repented or having feared of the police, etc., were

inclined to reveal the facts. If really P.W.9 was of such a person,

who did not support the case of the prosecution on account of his

relation with A.1 and A.2, there was no question of his taking A.1

and A.2 to the police station having knowledge that A.1 and A.2

would be shown as accused, if they are produced before the

police. So, on account of the close relationship, there was every

possibility that P.W.9 would not think over to take A.1 and A.2

before the police, if they revealed the offence in question to them.

The learned Judicial Magistrate of First Class failed to look into

this aspect. On the other hand, he simply held that P.W.9 on

account of relation did not support the case of the prosecution.

Whatever the reason may be that P.W.12 and P.W.9 did not

support the case of the prosecution, but the manner in which

P.W.14 claimed to have recorded extra-judicial confession has no

corroboration. Apart from this, it is rather irregular and illegal to

record the statement under Ex.P.13 by P.W.14 in the police

station especially when A.1 and A.2 were alleged to have revealed

the incident to him in his office even according to him. Apart from

this, when Ex.P.13 literally runs that it was recorded at the house

of P.W.14, it is shrouded mystery as to why P.W.14 deviated from

the place and introduced his office as a place where he claimed to

have recorded Ex.P.13, but, during cross examination he was

made to admit that he written Ex.P.13 in the police station. The

presence of C.I. of Police, S.I. of Police and other officials were

admitted by P.W.14 after he produced A.1 and A.2. Even in the

charge sheet, there was a narration that A.1 and A.2 disclosed the

facts before L.W.12-Village Secretary and L.W.12 recorded their

confession in the presence of L.W.13-Harijana DasariKrishna

Murthy, L.W.21-Reddy Rajasekhar Reddy and L.W.22-Chakali

Anjanaiah. As per the case of the prosecution, the presence of

L.W.21 and L.W.22 was secured before the Inspector of Police so

as to record Ex.P.14, confession. But, according to charge sheet

narration, A.1 and A.2 confessed under Ex.P.13 even before their

presence also. Therefore, it goes to show that there is any

amount of suspicious circumstances revolved around Ex.P.13.

46) A look at Ex.P.13 shows that in the first page in the

margin column on the left side which was supposed to be kept in

blank the purported signature of A.1 and Left Thumb impression

of A.2 were there. Page No.2 did not contain the signature or

thumb impression of A.1 and A.2 as the case may be. Curiously,

at page No.3, the signature of A.1 and thumb impression of A.2

as the case may be there that too on the left side margin which

was supposed to be kept in blank. Coming to Ex.P.14 at page

No.1 in the left side margin the signature of A.1 and thumb

impression of A.2 were there. Page No.2 did not contain

anything. Even page No.3 did not contain such signatures. Page

No.5 also did not contain. At the end of page No.6, there is a

whisper that they received the copy and at (1) Uligappa signature

and (2) Left Thumb impression of Mallappa is there. It is

shrouded mystery that as to why P.W.14 ventured to obtain the

left thumb impression and signature of the accused as the case

may be at first page of Ex.P.14 that too in the left side margin,

but not under the bottom of it. Similar is the situation in respect

of page No.3 of Ex.P.14. So, the style of obtaining signature or

thumb impression of A.1 and A.2 on Ex.P.13 and Ex.P.14 is

similar. Hence, it goes to show that Ex.P.13 was prepared in the

police station. The prosecution miserably failed to say as to why

Ex.P.13 was prepared in the police station when A.1 and A.2 were

alleged to have given such a statement at the house of P.W.14.

P.W.14 failed to depose that it was prepared at his house. All

these circumstances go to show any amount of doubtful

circumstances. There were serious irregularities found on Ex.P.13

and Ex.P.14.

47) As seen from the judgment of the learned Additional

Sessions Judge without there being any basis whatsoever, he

gave finding that Ex.P.13 contains the signature of P.W.9 and

P.W.9 failed to explain as to how he was there and how his

signature was there. It is to be noticed that the Assistant Public

Prosecutor did not impeach the testimony of P.W.9 inviting his

signature on Ex.P.13, but he impeached his testimony stating that

he stated before police as in Ex.P.8. So, without inviting the

attention of P.W.9 to his purported signature under Ex.P.13, it

cannot be held that for obvious reasons, P.W.13 having put his

signature on Ex.P.13, deposed false. Even the learned Additional

Sessions Judge did not look into the admissions made by P.W.14

in cross examination. Both the Courts below placed implicit

reliance on the oral testimony of P.W.14 without looking into the

cross examination part and without looking into the contents of

Ex.P.13 which itself discloses that it was recorded in the police

station. The manner in which the prosecution projected Ex.P.13

and P.W.14 was not at all free from blemish. There were a serious

suspicious circumstance hovering around Ex.P.13 and Ex.P.14.

Hence, I am of the considered view that the prosecution

miserably failed to prove before the Court below that extra-

judicial confession under Ex.P.13 was of a voluntary act on the

part of A.1 and A.2 and it was free from blemish.

48) It is to be noticed that the suspicion, however, grave

cannot be taken as a substitute for proof. It is not for the accused

to explain that he did not fence the electricity wire. It is for the

prosecution to prove the said aspect. Further the prosecution

should establish that both the deceased came into contact with

the live electricity wire around the fields of A1, as such, they died.

It is not a case where the dead bodies were found in the fields of

A.1. The entire judgment of the learned Additional Sessions Judge

is nothing but overlooking into the crucial aspects in the evidence

of P.W.14 as done by the learned Judicial First Class Magistrate

and it is further basing on the imaginations, assumptions and

presumptions. The extra-judicial confession under Ex.P.13 did not

meet the requirements of well established principles. Neither the

learned Judicial Magistrate of First Class nor the learned

Additional Sessions Judge looked into the legal principles relating

to extra-judicial confession and they did not take any care to

ascertain whether it was of voluntary and simply believed the

contents in Ex.P.13 ignoring the serious infirmities in the case of

the prosecution. Therefore, I hold that the judgment, dated

13.05.2008 in Criminal Appeal No.23 of 2007, on the file of II

Additional Sessions Judge, Kurnool at Adoni, is not legally

sustainable and it suffers with irregularity, as such, it is liable to

be interfered with by acquitting the Revision Petitioners of the

offences under Sections 304-A and 201 of I.P.C.

49) In the result, the Criminal Revision Case is allowed

setting aside the judgment, dated 13.05.2008 in Criminal Appeal

No.23 of 2007, on the file of II Additional Sessions Judge, Kurnool

at Adoni, thereby both the Revision Petitioners shall stand

acquitted of the offences under Sections 304-A and 201 of I.P.C.

The fine amount if any of A.1 and A.2 shall be refunded to them

after appeal time is over.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 04.05.2023.

Note: L.R. copy be marked.

B/o PGR

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

CRL. REVISION CASE NO.733 OF 2008

Note: L.R. copy be marked.

Date: 04.05.2023

PGR