Pandari Rajasekhar Raja Ramu vs The State Of A.P.
2022 Latest Caselaw 5997 Tel

      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                                  AND

        THE HONOURABLE Dr. JUSTICE D.NAGARJUN


                        CRl.A.No.62 of 2014

JUDGMENT: (per Hon'ble Smt. Justice P.Sree Sudha)


       This Criminal Appeal is filed against the Judgment of the

trial Court in S.C.No.202 of 2012 dated 06.12.2013. The Circle

Inspector in Toopran filed charge sheet against A.1 to A.7 under

sections 147, 148, 364, 302, 307 and 109 r/w 149 IPC.



2.     The trial Court examined P.W.1 to 23 and marked Exs.P1

to P43 on behalf of the prosecution and M.Os.1 to 18 are

marked. Defendants did not adduce any evidence. The trial

Court considering evidence on record and after hearing

arguments of both sides and also citations filed by them

concluded that accused A.1, A.4 to A.7 are acquitted for the

offences under Section 147, 148, 302, 307, 109 r/w 149 IPC.

But, convicted accused No.2 for the offence under Section 302

IPC under Section 235(2) Cr.P.C and sentenced to undergo life

imprisonment and also to pay a fine of Rs.1000/- in default,

simple imprisonment for two months and he is also sentenced
 to set off for the remand period under Section 428 Cr.P.C.

Aggrieved by the said Judgment accused No.2 preferred an

appeal and mainly contended that though number of witnesses

have been examined on behalf of the prosecution, nothing is

stated by them indicating the accused with the alleged charge

and absolutely there is no legal evidence on record to conviction.

The evidence adduced by the prosecution is wholly insufficient,

there are discrepancies in the evidence of the witnesses on

material particulars and all the material witnesses turned

hostile. There are no eye witnesses to the occurrence and the

case is based on the circumstantial evidence, even the motive is

not proved by the prosecution. As the trial Court acquitted other

accused for the same evidence, erred in convicting the accused

No.2. The evidence of P.W.5 is not helpful to prove the identity

of the accused and their participation in the commission of

offence as the photographs were shown to them prior to the

identification even the evidence of P.W.8 is not sufficient to

testify against him. P.W.1 clearly stated that when he went to

the police station to give report, defendant No.2 was found in

the police station itself. It is the case of no legal evidence on

record. Though the P.W.6 is declared as hostile, still his

evidence is taken into consideration to an extent that the




                                2
 defendant No.1 and 2 were found at 4-00 P.M in Pragnapur Bus

station. Therefore, requested the Court to set aside the

Judgment.



3.   The case of the prosecution is that the deceased No.1

(Jupally Mallesham) was the owner and the driver of the auto.

The accused are residents of different villages and they are

friends. One year back deceased No.1 abused and beat the

sister of accused A.1 on the ground that she was grazing cattle

in his lands. In that connection a Panchayat was held in the

Datarpally village and A.1 invited A.2, A.4 and another. They

also attended the said Panchayath. There quarrel took place

between the accused No.2 and deceased No.1. In another

occasion, one Anil of Datarpally village took away a girl from

Pragnapur crossroads and went to Cudapah. Ultimately, the

said girl brought back to the village and a Panchayat was held

in that connection. In the said panchayat quarrel took place

between accused No.2 and deceased No.1. Thereafter, all the

accused hatched a plan to kill the deceased D1 (Mallesham). On

01.06.2010

, accused were searching for deceased D1 to kill him.

But, he was found in the bus stand with his auto at 4 - 30 p.m,

the accused engaged the auto of the deceased D1 in which

deceased D.2 was also present. All of them proceeded towards

Nacharam village. When auto reached outskirts of Nacharam

village, accused A.2 said to have stabbed the deceased D.1 with

a knife from backside. All the accused got down from the auto.

When the deceased D.1 tried to escape, accused A.2 caught him

and cut down his neck. When the deceased D.2 making hue and

cry, accused A.3 cut down his neck with a knife. There is no

motive for accused to kill deceased D.2, but they killed him to

avoid their identification. As the whole incident was witnessed

by L.W.7/Udutha Sathaiah, he was chased by accused with a

view to kill him. But, he escaped from them. On receiving

information with regard to the death of D.1 and D.2, PWs.1 to 3

went to the scene and found the dead bodies of D.1 and D.2.

The scene of offence is located in between Toopran and

Nacharam villages. P.W.1 gave a report in the police station

under Ex.P.1.

4. On 02.06.2010, P.W.20 received a report with an

endorsement of P.W.21. Basing on the said report a case in

Cr.No.121 of 2010 was registered under Section 364 and 302

IPC and issued FIR to all concerned under Ex.P.33. On

01.06.2010 at about 8-00 p.m, P.W.21 received information

regarding the death of D.1 and D.2. Basing on the said

information he went to the scene of offence and found dead

bodies of D.1 and D.2. On 02.06.2010, P.W.22 conducted scene

of offence panchanama in the presence of P.W.9 and seized

M.Os.6 to 10. He conducted inquest over the dead body of D.1

in the presence of P.W.11. He also conducted inquest over the

dead body of D2 in the presence of P.W.15. Ex.P12 is the

inquest panchanama of D.2. P.W.22 recorded the statements of

P.Ws.1, 2, 4 to 6. On 02.06.2010, P.W.18 Civil Assistant

Surgeon conducted postmortem examination over the dead

bodies of D.1 and D.2. Ex.P.30 is the PME report of D.1. Ex.P31

is the PME report of D.2. Cause of death of deceased is due to

cardio respiratory arrest due to cut injury on neck. On

24.07.2010, P.W.16 Additional Judicial First Class Magistrate,

Siddipet conducted Test Identification parade (T.I parade). In

the said T.I Parade P.W.4 and P.W.17 did not identify any

suspects. P.W.8 identified A.2 as the person who participated in

the incident, but he did not identify accused in the Court. On

15.06.2010, P.W.22 arrested A1 to A6 at Medchal railway

station and during the course of interrogation the accused

alleged to have made a confession in presence of P.Ws.12 and

13. In pursuance of the said confession M.O.5 Nokia cell phone,

blood stain shirt and a knife were recovered and after

completion of entire investigation P.W.23 filed charge sheet.

Prosecution witnesses P.Ws.3 to 8, P.Ws.10 to 15, P.Ws.17 and

19 out of P.Ws.1 to 23 have not supported the case of the

prosecution and they were declared as hostile. The plea of the

accused is one of total denial. When the accused was examined

under Section 313 Cr.P.C., he denied the evidence of

prosecution as false.

5. The learned counsel for the appellant argues that P.Ws.8

and 17 are eye witnesses to the incident and others are

circumstantial witnesses and panch witnesses. Apart from the

eye witnesses P.Ws. 3 to 8, 10 to 15, 17 and 19 have turned

hostile. There is no evidence to connect accused with the offence

or to establish the motive against him. There is no evidence to

show that accused A.2 participated in the incidence along with

others and caused death of deceased D.1 and D.2. P.W.1 is the

father of D.1, P.W.2 is the wife of D.1. They did not state

anything against the appellant. Both of them expressed

suspicion on A.1 and his friends. They did not made any

specific allegation against A.2. The magistrate who was

examined as P.W.16 conducted Test Identification Parade (T.I).

As the eye witnesses turned hostile and stated that they did not

know the assailant and they did not identify them in the Court.

His evidence is of no relevance.

6. The learned counsel for the appellant further argued that

T.I Parade proceedings are not substantive piece of evidence and

they are relating to investigation as like 162 statements, as the

witnesses P.W.8 and 17 did not identify the assailants in the

Court, Test Identification Parade proceedings have no relevance,

has no value and cannot be relied upon. He also relied upon the

Judgment passed by the Hon'ble Supreme Court in the case of

Malkhansingh & others Vs. State of Madhya Pradesh,1 in

support of his contention, in which it is held as follows:

"It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine."

7. It is for the prosecution to establish the guilt of the

accused beyond reasonable doubt and it is for them to prove

that except accused A.2 and no other person has committed the

2003 (5) SCC 746

death of D.1 and D.2. Admittedly, in this case, there are no eye

witnesses to the occurrence and the case is based on

circumstantial evidence. The actual dispute is between accused

A.1 and deceased D.1. As D.1 beat the sister of A.1, Panchayat

was conducted before the elders of the community. But, A.1

instructed to his friend A.2 to come and attend the Panchayat.

As such, A.2 attended Panchayat and a quarrel took place

between A.2 and D.1. A.2 along with others hatched plan to kill

him. There is no evidence adduced by the prosecution to prove

the motive for the offence, as all the material evidences turned

hostile. Though, the charge sheet filed against A.1 to A.7, the

trial Court found accused A.1, A.4 to A.7 not guilty for the

offences punishable under Section 147, 148, 302, 307, 109 r/w

149 IPC and acquitted them under Section 235(1) Cr.P.C. The

Judicial Magistrate of I - Class registered it as P.R.C.No.44 of

2011. During the pendency of the proceedings, accused A.3 was

absconding and N.B.W pending against him since long time. As

such, the case against A.3 was split up as P.R.C.23 of 2012 and

the case is committed to the Court of Sessions. The learned

Principal District and Sessions Judge, Medak at Sangareddy

took up the case on file as S.C.No.202 of 2012 and made over

the case to the IV- Additional District Sessions Judge, Siddipet.

He pronounced the Judgment acquitting the above accused and

convicting the accused A.2 alone for the charge under Section

302 I.P.C. P.W.1 is the complainant, he clearly stated in

complaint that he found A.2 in the Police Station when he went

to Police Station for lodging a complaint under Ex.P1. He gave

complaint on 01.06.2010 at 8-00 p.m in P.S. Toopran and it

was registered as Cr.No.121 of 2010 under Ex.P.34 on

02.06.2010 and F.I.R was issued under Ex.P35. There is

correction in the date under Ex.P.35. P.W.1 stated that he is

suspecting accused A.1 for death of his son deceased D.1 in the

charge sheet and in the evidence, it was clearly mentioned that

there is no motive for the accused to kill D.2. As he was

accompanying D.1 to avoid identification, accused also killed

him. As per charge sheet A.3 killed D.2. As the case split up

against him, it cannot be considered now.

8. The case of the prosecution is that P.W.22 arrested A.1 to

A.6 on 15.06.2010 and at the instance of the confession given

by them, they also seized certain material objects. In view of the

evidence of P.W1, the said arrest and confession appears to

have created by the police for the purpose of the case. The trial

Court did not believe the evidence of the defendant counsel and

wrongly held that P.W.1 might have stated wrongly regarding

the presence of A.2 in the Police Station. P.W.1 is no other than

the father of deceased D.1. When Panchayat was conducted in

their village, there was occasion for him to see accused A.2. As

per the case of the prosecution, quarrel took place between A.2

and D.1 and there is no reason for P.W.1 to state falsely about

his presence in the Police Station when he went to the Police

Station for giving complaint. Therefore, the trial Court erred in

not believing the fact regarding presence of A.2 in the Police

Station on 01.06.2010. P.W.4 is the eye witness to the

occurrence. He was at a distance of 400 - 500 Sq.yrds from the

scene of offence. However, he turned hostile. P.W.5 is the

Manager of the Vinayaka lodge at Gajwel and he did not identify

the accused. The register maintained in the hotel was seized by

the police after 6 or 7 days under Ex.P4. P.W.6 stated that he

found D.1 and D.2 at Pragnapur auto stand at 4 p.m. P.W.7

stated that he knows A.1 and D.1. As he worked as Sarpanch,

he kept as signatory for the inquest Panchanama. But, he

stated that Panchayat was conducted between A.1 and D.1

about one month back though it was conducted about 1 year

back. P.W.8 is the Auto person supplying water. He stated that

he was proceeding on Auto, he noticed two dead bodies. But, he

turned hostile and he identified the accused in the jail, but not

in the Court and it was suggested that he was shown culprits

photographs before identification. P.W.9 is the witness for scene

of offence panchanama, under MO -1 beer bottle was seized.

P.W.10 and P.W.11 are panch mediators on inquest of the

deceased No.1. P.W.12 is the mediator for confession of six

persons and seizername of A.2 and he identified A.2 in the

Court. P.W.13 is also another mediator for confession

panchanama under which MO- 2 to 5 of A.2 were recovered.

But, he turned hostile regarding location of recovery spot.

P.W.14 is the mediator for seizer of an auto under Ex.P17 and

declared as hostile. P.W.15 is the mediator for inquest of D.2

under Ex.P18 and declared as hostile. Except the official

witnesses all other witnesses turned hostile to the case of the

prosecution. P.W.1 also expressed suspicion against A.1 but not

against A.2 when the trial Court clearly held that there is no

evidence against A.1 and others and acquitted them. Basing on

the same evidence how can A.2 be convicted may be in view of

MOs.2 - 5 pertaining A.2 were recovered at the scene of offence.

But, the witnesses clearly stated that confessional

panchanamas were drawn not at the scene of offence, but they

were drawn at the railway station. Even in the Test

Identification Parade conducted by the Magistrate one

Ch.Kanaka Raju identified A.2, but he failed to identify in the

Court. It is for the prosecution to connect accused with the

offence. A.2 was convicted for an offence under Section 302

I.P.C which is a grave offence, as all the material witnesses

turned hostile the trial Court erred in convicting the A.2 for the

said offence. Therefore, the Judgment of the trial Court is liable

to be set aside.

In the result, accused A.2 is found not guilty for the

offence under Section 302 IPC and acquitted under Section

235(1) Cr.P.C, bail bonds of accused A.2 shall stands closed.

M.Os.1 to 17 and other properties shall be destroyed and

M.O.18 auto shall be returned to A.5.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________

JUSTICE P.SREE SUDHA

_________________________

Dr. JUSTICE D.NAGARJUN

DATED: 19.11.2022

tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

AND

THE HONOURABLE Dr. JUSTICE D.NAGARJUN

CRIMINAL APPEAL No.62 of 2014

DATED: .11.2022

TRI