Telangana High Court
Burri Sanjeeva Reddy vs The State Of Ap., on 25 January, 2024
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE K. SUJANA
CRIMINAL APPEAL No.928 of 2013
JUDGMENT:
(per Hon'ble Sri Justice K. Lakshman)
Heard Sri V. Raghunath, learned Senior Counsel for the
appellants and Sri T.V. Ramana Rao, learned Additional Public
Prosecutor appearing on behalf of the respondent - State.
2. This appeal is filed challenging the judgment dated
04.10.2013 in S.C.No.114 of 2013 passed by IX Additional Sessions
Judge at Kamareddy (for short, 'trial Court'). The appellants herein
are accused Nos.1 to 4 in the aforesaid Sessions Case. Vide
impugned judgment, the trial Court convicted the appellants -
accused Nos.1 to 4 for the offenses punishable under Sections 302,
201 and 506(1) of IPC and sentenced them to suffer imprisonment
for life and to pay a fine of Rs.5,000/- each, in default, simple
imprisonment for six months for the offence punishable under
Section 302 IPC; to suffer rigorous imprisonment for two years for
the offence punishable under Section 201 IPC; and to suffer
rigorous imprisonment for two years for the offence punishable
under Section 506 (1) IPC.
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3. The case of the prosecution is as follows:
i) Accused No.2 is the father of accused Nos.1, 3 and 4
while accused No.5 is the elder brother of PW.1 and the deceased.
The deceased, PW.1 and accused No.5 were separated 15 years ago.
During separation, they got their respective shares in agricultural
land. However, PW.1 and his deceased brother were cultivating the
land together in Survey Nos.31 and 32, situated in the outskirts of
Pothangal Village, Gandhari Mandal, Nizamabad District.
ii) In the year 2002, P.W.1 and the deceased purchased an
extent of land admeasuring Ac.2-00 guntas belonging to accused
No.5 which was situated adjacent to their land. They have also
purchased the land admeasuring Ac.2-00 gunta from one Oddula
Narayana - PW.7, Ac.1-00 gunta from one Shivaiah - PW.10 and
Ac.1-00 gunta from one Mrs. Bommala Rajavva.
iii) Accused Nos.1 to 4 had some agricultural land in Survey
No.33, which is adjacent to the lands of PW.1 and the deceased, and
the said land is in the upper area of the land of PW.1 and the
deceased. As such, they were demanding PW.1 and the deceased to
provide way to go to their land through the land of P.W.1 and the
deceased. However, PW.1 and the deceased did not accept for the
same. In the said context, accused Nos.1 to 4 used to harass PW.1
and the deceased and also threatened both of them. PW.1 and the
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deceased lodged a complaint against accused Nos.1 to 4 whereby,
they gave an undertaking that they will not harass PW.1 and the
deceased. Accordingly, the matter was subsidized amicably in the
presence of elders of the village.
iv) Accused No.5, elder brother of PW.1 and the deceased,
was an ex-militant of CPI (Maoists). He used to demand P.W.1 and
the deceased to return him the land earlier sold to them, but PW.1
and the deceased did not accept the same. Thus, all the accused
developed grudge against PW.1 and the deceased.
v) Accused Nos.1 to 4 were planning to put an end to the
life of either PW.1 or the deceased. Accused No.5 also joined them
and accordingly, all of them conspired criminally to kill either PW.1
or the deceased.
vi) On 30.05.2012, PW.1 and the deceased attended their
work in their fields for the entire day and went to their houses in
the evening. On the same day, all the accused sat in an isolated
place and accused No.5 disclosed his conspiracy before accused
Nos.1 to 4 that, during night hours, the deceased may be called to
his fields informing about burning of Maize Hay stock and when the
deceased comes to the field, they can complete their task and that
accused No.5 would watch the same by hiding himself.
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vii) Pursuant to the said plan and conspiracy of accused
No.5, on the night of 30.05.2012, accused Nos.1 to 4 gathered in
their fields, while accused No.5 was watching the way by hiding
himself. At about 10:30 P.M., accused No.1 called the deceased on
his mobile phone bearing No.9440922395 through the mobile phone
of accused No.4 bearing No.9440739028 and informed the deceased
that the Hay stock of Maize was burning in his fields. In turn, the
deceased informed the same to PW.1. Both of them left their house
at about 10:45 P.M. When they reached near their fields, accused
No.1 suddenly attacked the deceased with a thick stick, as a result,
the deceased received head injury and collapsed there. Then,
accused Nos.3 and 4 brought some dry grass and Hay of Maize and
put the same on the deceased. Thereafter, accused No.2 lit fire and
burnt the deceased alive with an intention to create accidental burn
and to screen the evidence. On observing the said incident, PW.1
intended to rescue his brother, but all the accused threatened him
saying that if he comes forward, he will also be burnt. Therefore,
P.W.1 fled away from the scene of offence to rescue himself.
viii) On the next day i.e., 31.05.2012 at about 07:00 A.M.,
PW.1 went to the Police Station, Gandhari and lodged Ex.P1 -
complaint against the accused. On receipt of the same, the Police
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registered a case in Crime No.50 of 2012 against accused Nos.1 to 5
for the offences punishable under Sections 302, 201 and 506 of IPC
and took up the investigation.
ix) During investigation, the Investigating Officer recorded
the statements of the witnesses and requested the doctor to conduct
autopsy over the dead body of the deceased. On completion of
investigation, he has laid charge sheet against all the accused for
the aforesaid offences. The same was taken on file as Sessions Case
No.114 of 2013 by learned IX Additional Sessions Judge at
Kamareddy, Nizamabad District.
x) To prove the guilt of the accused and the motive, the
prosecution has examined PWs.1 to 17 and got marked Exs.P.1 to
P.17. MOs.1 to 4 were also exhibited on behalf of the prosecution.
4. On consideration of the entire evidence, both oral and
documentary, and after hearing both sides, the trial Court convicted
accused Nos.1 to 4 for the aforesaid offences and sentenced life
imprisonment. However, the trial Court has acquitted accused No.5
for the offences punishable under Section 302 read with 34 and
120(b) IPC. No appeal was preferred challenging the impugned
judgment to the extent of acquitting accused No.5.
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5. Challenging the said conviction and sentences of life
imprisonment, the appellants/accused Nos.1 to 4 preferred the
present appeal.
6. Attacking the impugned judgment, Sri V. Raghunath, learned
Senior Counsel appearing for the appellants, contended as follows:
i. The prosecution failed to prove the motive i.e., land disputes,
by producing cogent evidence.
ii. There are material contradictions in the depositions of
prosecution witnesses. There is no mention with regard to
PW.1 going to his house at about 05:00 A.M., on the next day
i.e., 31.05.2012, and informing the incident to PW.2 - wife of
the deceased and further that he went to the police station
directly and lodged Ex.P.1 - Complaint.
iii. There is delay in sending FIR to the trial Court and there is no
explanation from the prosecution for the said delay.
iv. The presence of PW.1 is highly doubtful.
v. According to PW.1, the alleged incident took place on
30.05.2012 in the mid-night and even then, PW.1 failed to
inform the said fact to the family members and police
immediately. He lodged Ex.P1 - Complaint before the police
on the next day i.e., 31.05.2012 at 07:00 A.M. There is no
explanation, much less plausible explanation from PW.1 with
regard to his presence from 11:00 P.M., of 30.05.2012 to
05:00 A.M., on 31.05.2012.
vi. MO.1 - Stick and MO.3 - Ash, were not sent to Forensic
Science Laboratory. Therefore, recovery itself is doubtful.
vii. Receipt of phone call was not mentioned in Ex.P.1 -
Complaint.
viii. Mobile phones of accused No.4 and the deceased were not
seized.
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ix. Accused No.2 was aged about 62 years as on the date of the
incident and there is no specific overt act against him, except
general allegations.
x. Placed reliance on Section 8 of the Indian Evidence Act, 1872.
Ex.P.17 - Call Data does not contain the signatures, seal, etc.,
of the authority concerned, who issued the same.
xi. Without considering the said aspects, the trial Court convicted
accused Nos.1 to 4 and imposed sentence in the manner
stated supra.
7. Whereas, learned Additional Public Prosecutor would contend
that the prosecution has proved motive and guilt of the accused
beyond reasonable doubt. PW.1 is eyewitness and also the brother
of the deceased and he has narrated the entire scene. To prove the
motive i.e., land disputes, the prosecution has examined PWs.1 to 8.
PW.9 and 11 specifically deposed that the accused, the deceased
and PW.1 were seen in the agricultural fields. PW.10 is the panch
witness for confession panchanama. MOs.1 and 2 were seized from
the accused. The Investigation Officer has proved the guilt of the
accused beyond reasonable doubt. The offence committed by the
accused is serious and grave in nature. On considering the entire
evidence, the trial Court rightly convicted the appellants.
MOTIVE:
8. As discussed supra, according to the prosecution, the motive
is land dispute. To prove the same, prosecution has examined PW.1
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- elder brother, PW.2 - wife, PW.3 - father, PW.4 - cousin of the
deceased. PW.5 and PW.6 are residents of Pothangal village, to
which the accused and the deceased belong. PW.7 and PW.8 sold
the land to PW.3 and the deceased respectively.
i) PW.1 deposed that he and the deceased together purchased
land admeasuring Acs.2.00 gts., belonging to accused No.5, Ac.1.00
each from PWs.8 and 10. From the date of said purchase, accused
Nos.1 to 4 started quarrelling with him and the deceased with
regard to rastha. They have lodged a complaint before the police
with regard to the said rashta dispute and police came and enquired
both of them. Accused Nos.1 to 4 told that they do not want any
rastha and they look after the same afterwards.
ii) He further deposed that about one year prior to the
incident, he, deceased and his father were in their land, accused
No.5 along with some unknown persons came to them to attack and
kill them. They escaped from them, informed the said fact to the
Villagers, who in turn advised them and accused No.5 not to quarrel
with each other.
iii) PW.2, wife of the deceased and PW.3, father of the
deceased, also deposed in the same lines with regard to purchase of
land and the dispute with regard to rastha.
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iv) PW.4 deposed that a panchayath was held between the
accused and the deceased in respect of the rastha dispute for two
times. He attended the said panchayaths. Villagers also were
present in the said panchayaths. However, during cross-
examination, he has admitted that he does not know the names of
the accused Nos.1 to 4 and that he was not present in the
panchayaths. Therefore, his evidence is not useful to the
prosecution.
v) PW.5, resident of Pothangal Village, deposed that prior to
the incident quarrel took place between the accused and the
deceased with regard to the rastha, panchayaths were held in the
village thrice, he was also present in the panchayaths and elders
advised both sides not to quarrel and live peacefully. He also
deposed about purchase of accused No.5's land by PW.1 and the
deceased and accused No.5 demanding them to return the same.
Nothing contra was elicited from him during cross-examination.
vi) PW.6, another resident of Pothangal village, deposed about
quarrelling of accused Nos.1 to 4 with PW.3 for rastha about three
years ago. Accused No.2 told that elders said that there is no
rastha in the land of PW.3. Accused No.5 sold land to PW.1 and the
deceased and that elders advised accused No.5 not to ask for return
of land. However, during cross-examination, he has admitted that
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after first panchayath, accused Nos.1 to 4, deceased lived peacefully
without any ill-feelings. There were talking terms between them till
the death of the deceased.
vii) PW.7 deposed about sale of his land to PW.3 about 16
years ago and that lands of accused Nos.1 to 4 situate adjacent to
the land sold by him to PW.3. There was no rastha in the land.
After purchase of the land by PW.3, accused Nos.1 to 4 started
quarrelling with PW.3 for rastha in the said land and that
panchayaths were also held with regard to the same. During cross-
examination, he has admitted that he was not present in the
panchayts, he has not witnessed accused Nos.1 to 4 quarrelling
with PW.3 for rastha. Therefore, his evidence is not useful to the
prosecution to prove motive.
viii) PW.8 deposed that he sold the land to the deceased about
four years ago.
ix) PW.10, another resident of Pothangal village, deposed that
there is a Grama Committee in his village. He is the President of the
same. The deceased and PW.1 came to the committee with a
request to resolve the dispute between them and accused No.5.
They have called accused No.5, PW.1, PW.3 and the deceased and
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advised accused No.5 to enjoy the property as per the earlier
division, for which accused No.5 agreed.
x) It is relevant to note that during cross-examination,
accused Nos.1 to 4 have taken a defence that the death of the
deceased is accidental due to fire and that by taking advantage of
earlier land disputes, PW.1 to PW.3 implicated them in the said
case. Thus, accused have admitted that there are land disputes
among them and PW.1 and the deceased. Thus, there are disputes
between them, PW.1, PW.3 and the deceased.
xi) In the light of the said discussion, the contention of
learned senior counsel that the prosecution failed to prove the
motive beyond reasonable doubt cannot be accepted.
9. To connect the accused with the offence, the prosecution has
examined PW.1 (brother of the deceased, complainant and
eyewitness to the incident) and also PWs.9 and 11, who have seen
the accused, PW.1 and the deceased in the agricultural field on the
night of 30.05.2012.
i) PW.1 is an eye-witness and elder brother of the deceased.
He deposed that on 30.05.2012 while he and the deceased were in
the house, accused No.1 telephoned to the deceased at about 11.00
P.M., informed him that fire came from their land to the hayrick of
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accused No.1. On receipt of the said information, the deceased
proceeded towards their lands and PW.1 followed the deceased.
Accused Nos.1 to 4 were present there. The deceased asked them
what was happened, on that accused No.1 beat the deceased with
stick on the head of the deceased, due to which, the deceased fell
down. Accused Nos.2 to 4 beat the deceased with stick. Then,
accused Nos.1 to 4 brought dry gross and placed the same on the
deceased and set fire the deceased while he was alive. They have
threatened him and, therefore, he escaped from them.
ii) Thus, according to him, accused No.1 made a call to the
deceased and beat the deceased with stick. There are no specific
overt acts against accused No.2. Accused No.2, father of accused
No.1, 3 and 4, was aged about 62 years as on the date of incident.
He was there at the scene of offence. Mere presence of accused No.2
at the scene of offence is not sufficient. PW.1 did not speak about
the role played by accused No.2 specifically in commission of
offence.
10. PW.9, resident of Pothangal village, deposed that on the date
of incident at about 10.30 P.M., he met the deceased while he was
near Hanuman Temple of the said Village. He asked the deceased
as to where he was going during night time, to which the deceased
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replied that he was going to his land as he received phone call from
one Sangamolla Person informing him that hayrick yard caught fire.
PW.9 told the deceased to take the assistance of other people as it
was night. The deceased was holding torchlight in his hand.
i) During cross-examination, he has admitted that the
deceased was alone going. Five minutes after the deceased left the
place, he went to his house.
ii) PW.11, resident of Pothangal village, deposed that on the
day of incident, he went to search his missing buffalo. At about
10.30 P.M., he noticed accused Nos.1 to 4 at their fields and also
noticed burning of hayrick. Thereafter, he returned to his house.
In the morning, he came to know that the deceased died and he
went to the scene of offence, found the burnt dead body of the
deceased.
iii) During cross-examination, he has admitted that he went
to the scene of offence in search of his missing buffalo.
iv) Thus, PW.9 saw the deceased going to his field and PW.11
saw accused in the field and also noticed burning of hayrick.
11. Though PW.1 deposed that accused Nos.2 to 4 have also beat
the deceased with stick, only MO.1 - stick was exhibited. Thus,
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there is no specific overt act against accused No.2 with regard to
beating the deceased with stick. As discussed supra, mere presence
of accused No.2 in the scene of offence alone is not sufficient to
convict him for the offence under Section 302 of IPC in the absence
of other corroborative evidence.
i) PW.14 is the panch witness for recovery of MO.1 - stick,
MO.2 - torchlight and MO.4 - match box from the agricultural field
of the accused Nos.1 to 4 at the instance of accused Nos.1 to 5.
During cross-examination, he has admitted that he used to visit the
house of the deceased now and then. Thus, his evidence is not
useful to connect accused No.2 to the offence.
ii) PW.15 is the doctor, who conducted autopsy over the dead
body of the deceased, and according to him, the cause of death is
post-burns shock due to hypovolemic shock due to deep burns with
open head injury with expulsion of frontal lobe of brain. Ex.P15 is
the post-mortem examination report. During cross-examination, he
has admitted that the deceased sustained 100% deep burns.
iii) PW.16 is the Sub-Inspector of Police who deposed about
receipt of complaint from PW.1 on 31.05.2012 at 7.00 A.M.,
registration of Ex.P16 - FIR, and sending of the same to the Court.
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iv) PW.17 is the Investigating Officer, who recorded the
statements of the witnesses and on completion of investigation he
laid charge sheet. He deposed that he conducted inquest over the
dead body of the deceased at the scene of offence in the presence of
panchas, Ex.P6 is the inquest panchanama. He seized MO.3 - ash.
He arrested the accused on 04.06.2012 and recorded their
confessional statements separately. Exs.P7 to P11 are confessional
panchanamas of accused. At the instance of accused No.1, he
recovered MO.1 under Ex.P12 - recovery panchanama. He seized
MO.4 at the instance of accused No.2 under Ex.P13 - panchanama
and MO.2 - torchlight at the instance of accused No.3 under
Ex.P14. He has secured call details (Ex.P17) of mobile number
9440739028 belongs to accused No.4 as per which the deceased
received phone call to his mobile number 9440922395 from the cell
phone of accused No.4 on 30.05.2012 at 22:31 hours and at 22:54
hours.
v) However, during cross-examination, he has admitted that
he has collected Ex.P17 call details from BSNL and there is no seal
and signature of Issuing Authority on the same. He has not seized
cell phones of accused No.4 and the deceased. He has not filed any
record to show that SIM Cards for the said cell numbers were issued
in the name of accused No.4 and deceased respectively.
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vi) The aforesaid evidence would reveal that accused No.1
beat the deceased with stick. Accused No.1 made a call to the
deceased from the mobile phone of accused No.4. PW.17 -
Investigating Officer collected Ex.P17 - call data in proof of the
same. Nothing was seized from accused No.2. There are no specific
overt acts against him except his presence in the scene of offence.
He was 62 years at the time of incident.
vii) PW.2, wife of the deceased, also spoke about receipt of
phone call by the deceased from accused No.1 and that the
deceased left the house and PW.1 followed him. During cross-
examination, she has admitted that PW.1 and the deceased were
living separately and immediately after the deceased left the house
she went to PW.1, woke him up, informed him about the receipt of
phone call from accused No.1. Thereafter, PW.1 proceeded to the
scene of offence.
viii) As discussed supra, accused No.1 made a call to the
deceased through mobile phone of accused No.4. They are own
brothers. In proof of the same, PW.17 Investigating Officer collected
call data i.e., Ex.P17. The said aspect was considered by the trial
Court in the impugned judgment.
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ix) Thus, prosecution could prove the guilt of accused Nos.1,
3 and 4 beyond reasonable doubt. There are land disputes among
PW.1, PW.3, deceased and accused, more particularly, with regard
to rastha. MO.1 - stick was recovered from accused No.1.
x) As discussed supra, except stating that accused No.2 was
also present, there is no other specific evidence against him.
Without considering the said aspects, the trial Court convicted him
along with other accused. Therefore, the conviction recorded
against accused No.2 vide impugned judgment is liable to be set
aside.
12. Mr. V. Raghunath, learned senior counsel, would contend that
the trial Court cannot record conviction against the accused relying
on the evidence of sole witness. As discussed supra, PW.1 is the
brother of the deceased and eye-witness to the incident. There is no
contradiction in his evidence. Depositions of PWs.2 and 3, wife and
father of the deceased corroborated with the deposition of PW.1.
PW.9 and PW.11 have seen the deceased and accused respectively
on the day of incident. PW.2, wife of the deceased and PW.9 also
specifically deposed that the deceased was holding torchlight
(MO.2). Recovery and seizure are also proved.
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13. It is well recognized principle of law that evidence of sole
witness can be acted upon and there is absolutely no need of
corroboration of his version by any independent material, and
Courts should consider that the evidence is absolutely reliable. The
said principle was also laid down by the Hon'ble Supreme Court in
Karunakaran v. State of Tamil Nadu1, Anil Phukan v. State of
Assam 2 and Jagadish Prasad v. State of Madhya Pradesh 3.
14. In the light of the aforesaid discussion, the contention of
learned senior counsel appearing for the appellants - accused Nos.1
to 4 that the presence of PW.1 at the scene of offence is doubtful
cannot be accepted.
15. In paragraph No.43 of the impugned judgment, the trial Court
gave a finding that the evidence of PW.1 is convincing and inspiring
confidence. Though there is a doubt on the aspect of recovery of
MOs.1, 2 and 4, in view of the evidence of PW.1 - eyewitness to the
incident, involvement of accused Nos.1 to 4 in commission of the
murder of the deceased is proved.
16. It is relevant to note that during cross examination, accused
Nos.1 to 4 have taken defence that the death of the deceased is
AIR 1976 CRILJ 331
AIR 1993 SC 1463
AIR CRILJ 1106
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accidental due to fire and that by taking advantage of the earlier
land disputes, PWs.1 to 3 implicated them in the present case.
However, they have not informed the said fact to anybody including
villagers, their relatives or wife, brother or father of the deceased.
Further, they have not lodged any complaint with the police. They
have not informed the said fact to the revenue officials of their
village. Therefore, the said defence taken by the accused cannot be
accepted.
17. In paragraph No.26 of the impugned judgment, trial Court
gave a finding that accused Nos.1 to 4 were in such a ferocious state
and in such an aggression mood, they have burnt the deceased
alive. As discussed above, accused No.2 is father of accused Nos.1,
3 and 4 and he was aged about 62 years at the time of incident.
There are no specific overt acts against him except his presence at
the scene of offence. Therefore, the said finding of the trial Court in
so far as accused No.2 is concerned is without any basis. He was in
jail from 04.10.2013 to 16.10.2018. At present he is 73 years.
18. Vide impugned judgment, trial Court acquitted accused No.5
and no appeal is preferred by the respondent - State challenging the
same. It attained finality.
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19. In the light of the aforesaid discussion, the conviction and
sentence of imprisonment recorded against accused No.2 vide
impugned judgment is set aside, while conviction and sentences of
imprisonment recorded against accused Nos.1, 3 and 4 are
maintained.
20. Therefore, the conviction and sentence of imprisonment
recorded by IX Additional Sessions Judge at Kamareddy, Nizamabad
District against appellant No.2/accused No.2, vide impugned
judgment dated 04.10.2013 in S.C.No.114 of 2013 is hereby set
aside. However, the conviction and sentences of imprisonment
recorded against appellant Nos.1, 3 and 4/accused Nos.1, 3 and 4
hereby are confirmed. Consequently, accused No.2 is not found
guilty of the offences punishable under Sections 302, 201 and
506(1) of IPC and he is acquitted of the said charges. Appellant
No.2/accused No.2 is already on bail. Bail bonds furnished by him
shall stand cancelled. The fine amount paid by appellant
No.2/accused No.2 shall be refunded. Accused Nos.1, 3 and 4 are
on bail. Therefore, they are directed to surrender before the IX
Additional Sessions Judge at Kamareddy, Nizamabad District, for
undergoing remaining sentences of imprisonment within a period of
one (01) month from the date of receipt of a copy of this judgment,
failing which, the trial Court is at liberty to take steps in accordance
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with law to apprehend and incarcerate them for serving out the
remaining sentences of imprisonment as per the confirmed
sentence.
21. The present Criminal Appeal is accordingly allowed in part.
As a sequel, miscellaneous applications, if any, pending in the
Criminal Appeal shall stand closed.
__________________
K. LAKSHMAN, J
________________
K. SUJANA, J
Date: 25.01.2024
GSP/TJMR
