Telangana High Court
M.Praveen Reddy , Parameshwar Reddy vs Gilkala Ganesh And 3 Others on 30 July, 2024
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU
CRIMINAL APPEAL NOs.950 OF 2014,
1004 OF 2014, 1029 OF 2014 AND CRIMINAL APPEAL
(SR) No.45104 OF 2015
COMMON JUDGMENT:
(Per the Hon'ble Sri Justice Sambasivarao Naidu)
Assailing the Judgment dated 27-08-2014 in S.C.No.
403 of 2008 on the file of Additional Metropolitan Sessions
Judge, Cyberabad, Four different Criminal Appeals have been
filed before this Court. Accused No's.5, 7 and 8 have filed
Criminal Appeal No.950 of 2014 under section 374(2) of
Criminal Procedural Code (for short 'Cr.P.C'), questioning the
correctness of their conviction for the offence under Section
302 r/w 34 of Indian Penal Code (for short 'I.P.C.').
Mr. M.Praveen Kumar, who was examined as PW.2 in the
above Sessions Case has filed two Criminal Appeals. He has
filed Criminal Appeal No.1004 of 2014 against the acquittal of
A2, A3 and A9 for the offences under Sections 120-B, 302 r/w
120-B of IPC and Criminal Appeal No.1029/2014 under
2 PSK,J & SSRN, J
Section 372 of Cr.P.C against the acquittal of A5, A7 and A8
for the offences under Sections 341 and 307 r/w 34 of IPC
and under Section 25 of Arms Act. The State also filed one
Criminal Appeal under Section 378(3) and (1) of
Cr.P.C against the acquittal of A2, A3 and A9 for the offences
under Sections 120-B, 302 of IPC r/w 120-B of IPC, and
acquittal of A5, A7, and A8 for the other charges. Even
though, four different appeals have been filed, all are against
the same Judgment in SC.No.403 of 2008 but on different
grounds, as such, all the appeals can be disposed by one
common Judgment, hence this common Judgment.
2. The above referred Sessions Case vide SC.No.403
of 2008 has been filed against 9 (Nine) accused with an
allegation that they have committed the offences punishable
under Sections 341, 302, 307, 120-B r/w 34 of IPC and under
Section 4 of Arms Act r/w Section 25 of Arms Act.
3. The following is the brief case of prosecution as
per the charge sheet :
One M.Jagadishwar Reddy, who herein after will be
referred as deceased and A1 (Yamjala Sridhar Reddy), who
claims himself as Uppal YSR are strong supporters of
3 PSK,J & SSRN, J
Congress (I) Party and residents of Uppal. PW.2 is brother of
deceased Jagadishwar Reddy. The deceased formed a
political organization known as MPR Yuvasena. Earlier A1
was President of Bharatiya Yuvajana Sangham, Uppal and was
Director of A.P. State Trading Corporation about one year
prior to the offence with which the accused were charge
sheeted. However, in the subsequent election, PW.2 was
elected as President of Bharatiya Yuvajana Sangham. Both
A1 and deceased were competing for political supremacy in
the same party, especially in Uppal area. Since Uppal was
separated from Medchal Assembly Constituency and made as
separate constituency, the rivalry between these two has
been increased and both A1 and deceased developed deep
animosity against each other. There were frequent clashes
between these groups and about 7 Criminal cases have been
registered against the groups.
4. The prosecution has alleged that, in view of the
above political rivalry, A1 had decided to eliminate the
deceased. About one month prior to 22-05-2007, A1, A2 and
A3 met in a room at Mohan Reddy Function Hall, Uppal and
prepared a plan to kill the deceased and subsequently, they
4 PSK,J & SSRN, J
met two or three times and discussed about their plan, and
the said meetings were witnessed by LW.14 Raheem Khan but
he did not notice as to what they were discussing, but PW.7
who went to the above said function hall overheard their
conversation where in, A2 informed A1 that he can provide
suitable persons, who can kill the deceased. A2 contacted A4
and A5, who were involved in another murder case vide Crime
No.453 of 2006 of Madhapur and took them to A1.
A1 promised to pay Rs.5,00,000/- for executing the plan i.e.,
to murder the deceased. A1 wanted them to execute the plan
even by taking help of others but it shall be done without any
failure. About a week later, A2 to A5 met A1 at Sherton Hotel
and he gave Rs.50,000/- to A2 as advance. A2, A3 shown the
poster of deceased and informed A4 and A5 that the deceased
used to wear white clothes and asked them to kill him. A1
had engaged A3 and A9 to watch the movements of the
deceased, so that the same can be informed to him.
5. The prosecution has further alleged that out of the
amount of Rs.50,000/-, A4 and A5 have purchased one
secondhand Yamaha Motorcycle from PW.11, and also
purchased two knives and spent the balance amount. A4 and
5 PSK,J & SSRN, J
A5 sought the help of A6, who was a juvenile then, and also
A7 and A8, who are their friends, for executing the murder
plan.
6. It is the further case of prosecution that on
22-05-2007, A2 called A4 and A5 over phone and informed
them the deceased went to Ramanthapur in his white Zen Car
bearing No.Ap-29-2960 and he should be done to death in his
return journey to Uppal and assured them that he would
inform them about the movements of deceased. A4, A5 along
with A6 to A8 had dinner at Madhura Bar, Ramanthapur. At
about 10.30 p.m., A2 called A4 on phone and informed him
that the deceased had crossed TV Studio at Ramanthapur and
informed him that A1 would be waiting nearby and assured
him that he need not worry and can go ahead with the task.
Accordingly, A4 proceeded on the motor-bike along with A6
while A5 and A8 proceeded on another bike bearing No.Ap 9B
3551 along with A7, who rode the bike. A4 and A5 were
armed with knives, and followed the car of deceased. By that
time, PW.1 was driving the car. At about 10.45 p.m., when
the car reached Rama Dharam Weigh Bridge, near Indian Oil
Petrol Bunk, IDA, Uppal on Hyderabad - Warangal Road, A6
6 PSK,J & SSRN, J
who was riding the bike suddenly crossed the car and stopped
it in front of the car of deceased. The deceased got down the
car and walked towards A6 by abusing him for stopping the
bike across the road in front of his car. A4 who was the pillion
rider of A6 has removed the knife, and though the deceased
who noticed A4 removing the knife, rushed towards his car,
A4 stabbed him indiscriminately. A5, A7 and A8 who came later
to the scene, surrounded the scene and prevented the others
from intervening and to ensure the deceased cannot escape.
PW.1 tried to rescue the deceased, but A4 stabbed him also
and he received injuries. The deceased suffered profuse
bleeding and fell on the road and A4 stabbed him again to
make sure he was dead. The prosecution has further alleged
that A1 and A2 reached the scene of offence in a Auto to
confirm that the planned murder is accomplished and PW.5,
PW.6 noticed these two accused at the scene of offence.
Soon after the incident, the accused escaped from the scene
of offence. PW.6, who is shown as an eyewitness to the
above offence said to have made a call to PW.2 from the
mobile of PW.1 and PW.2 reached the spot in ten minutes and
7 PSK,J & SSRN, J
PW.1, PW.2 and PW.6 shifted the deceased to Kamineni
Hospital, but the Doctors declared him as brought dead.
7. The prosecution further alleged that at about
3.30 a.m., on 23-05-2007, the then Inspector of Police,
Uppal, who is examined as PW.17 received a written
complaint from PW.1 at Kamineni Hospital and he forwarded
the same to police station with a direction to register a case
through a constable and LW.28 HC 883 by name Narayan Das
registered the complaint as a case in Crime No.503 of 2007
under Sections 341, 302, 120-B r/w 34 of IPC and sent the
CD file to PW.17. PW.1 suspected A1, A2, Seetharamamma,
Sridhar Rao, Akula Mahender, Chinna Reddy, Malla Reddy,
Venugopal, Ashok and Ravi Kumar are responsible for the
above said offence. The prosecution further alleged that
though the initial investigation was by PW.17, in view of the
instructions of ACP, Malkajgiri, PW.18 took up the further
investigation.
8. The prosecution further alleged that PW.18 visited
the scene of offence and conducted panchanama before
LW.20- KonchalaKanti Gopal Reddy and LW.21 Mashyam
Srinivas and said to have collected some material objects and
8 PSK,J & SSRN, J
also collected blood stained earth etc., from the scene of
offence. He has conducted inquest on the dead body of the
deceased at Kamineni Hospital at L.B.Nagar before same
witnesses. He said to have seized blood-stained clothes of
the deceased before same witnesses and referred the dead
body for post-mortem examination.
9. It is also alleged in the charge sheet that in view
of the instructions of ACP, further investigation was taken up
by PW.19, who has examined PWs.3 to 11 and some other
witnesses. The further averments of the charge sheet would
discloses that PW.19 having apprehended A2 with the help of
his team said to have interrogated him before the
independent mediators and in view of the information
collected from A2, he could notice the involvement of other
accused and said to have arrested A5 to A8 at their respective
houses and said to have seized money which they have
received from the prime accused for committing murder of
deceased Jagadishwar Reddy. These accused were later
produced before the Court for judicial custody and PW.19
having completed the investigation filed charge sheet. He
tried to explain the discrepancy in the complaint (FIR) with
9 PSK,J & SSRN, J
regard to the involvement of accused No's.5, 7, 8 and vehicles
they said to have used when compared with the statements of
the witnesses before the Investigating Officers and in such
attempt, he tried to explain by saying that since the offence
took place on the high way and immediately after the
occurrence, some more vehicles might have been stopped at
the place of offence and people gathered there and the
complainant, who has already received injuries and in view of
confusion, could not have given the actual details and he
might have noticed a car at the scene of offence and under
mistaken impression that A5, A7 and A8 got down the said car
mentioned the same in the report.
10. The charge sheet filed against all the accused was
taken cognizance by the learned Magistrate, who after
securing all the accused and on compliance of Section 307 of
Cr.P.C., committed the case to District Court where it was
registered as SC.No.403 of 2008 and it was made over to
Addl. Metropolitan Sessions Judge, Cyberabad, L.B.Nagar.
The learned Addl. Metropolitan Sessions Judge has examined
the accused on record and framed charges against them as
follows:
10 PSK,J & SSRN, J
1. Charge under Section 120-B(1) of IPC against A1,
A2, A3, A5, A7, A8 and A9.
2. Charge under Section 25 of Indian Arms Act
against A5.
3. Charge under Sections 341 r/w 34 of IPC against
A5, A7 and A8.
4. Charge under Section 302 r/w 34 of IPC against
A5, A7 and A8.
5. Charge under Section 307 r/w 34 of IPC against
A5, A7 and A8.
6. Charges under Sections 302, 307, 341 of IPC and
Section 25 of Indian Arms Act r/w 34 against A1,
A2, A3, A5, A7, A8 and A9.
11. The accused present before the trial Court have
denied the above referred charges and claimed to be tried.
During the trial, the prosecution has examined PWs.1 to 19
and marked Exs.P1 to P29 and MOs.1 to 20. The accused also
marked some documents vide Exs.D1 to D11.
12. After conclusion of trial, the entire incriminating
evidence deposed before the witnesses were stated to the
accused who have denied the same. The learned trial Judge
having heard the Public Prosecutor and defense counsel and
after perusing the entire record, came to the conclusion that
11 PSK,J & SSRN, J
the prosecution was able to prove the guilt of A5, A7 and A8
for the offence under Section 302 r/w 34 of IPC and
accordingly, convicted them under Section 235(2) of Cr.P.C.
and sentenced them to suffer Rigorous Imprisonment for Life
and also to pay fine of Rs.5,000/- each, in default to suffer
Simple Imprisonment for One (1) month. The trial Court
found A2, A3 and A9 not guilty for the offences with which
they were charged and also found A5, A7 and A8 not guilty for
the remaining charges and accordingly, recorded acquittal for
the said charges. It appears from the record, since A1 and A4
died during the pendency, case against them was abated, and
police have filed a separate charge sheet against A6 as he
happened to be a Juvenile. As already stated in the previous
paragraphs the accused who were convicted for offence u/s
302 r/w 34 IPC, i.e. A5, A7, and A8 have filed a separate
appeal questioning their conviction on the ground that the
trial court failed to appreciate the evidence in a correct way
and the appeals have been filed against the acquittal of A2.
A3 and A9 for all the charges framed against them and
acquittal of A5, A7 and A8 for the rest of the charges.
12 PSK,J & SSRN, J
13. The learned counsel representing A5, A7 and A8,
who have filed Criminal Appeal No.950 of 2014, has submitted
that the trial Court failed to appreciate the oral and
documentary evidence placed before the Court and did not
read the cross-examination of all the material witnesses in a
proper way and without appreciating the fact that though
there was no proper explanation from the prosecution as to
how the report said to have been presented by PW.1 reached
the police agency and without appreciating the discrepancy in
the evidence of material witnesses about the presence of
these appellants, on the basis of an incorrect conclusion
convicted them for the offence under Section 302 r/w 34 of
IPC. He has mainly attacked the evidence of PWs.5 to 7 on
the ground that there is no explanation from the Investigating
Agency as to how the Investigating Officers could know the
presence of these three witnesses at the scene of offence
although they did not approach the police on the date of
offence or on the next two days. Therefore, it clearly
indicates that the prosecution has planted these three
witnesses to connect the accused with the present crime. He
has also argued that the evidence of PW.19 clearly indicates
13 PSK,J & SSRN, J
that he has produced all the accused along with material
objects before the press, which was telecasted in all the
Televisions, thereby, the Test Identification Parade conducted
by PW.14 loses its importance. There is a huge gap in
between the date of offence, arrest of accused and date on
which the Test Identification Parade was conducted.
Therefore, there is every possibility for the prosecution
witnesses to see these appellants, who were in judicial
custody and who were produced before the Court for every
14 days for extension of remand.
14. While arguing the other appeal filed by PW.2
against these accused (A5, A7 and A8) questioning their
acquittal for the offence under Sections 307, 341 r/w 34 of
IPC, he has further submitted that the evidence of PW.1 vide
his cross-examination itself indicates that these three accused
were falsely implicated in this case, thereby, the trial Court
having appreciated the evidence of all the witnesses rightly
acquitted these accused for the offences under Sections 307,
341 r/w 34 of IPC, and as such there is no ground to set aside
the said acquittal or to convict them for the remaining
charges.
14 PSK,J & SSRN, J
15. The learned counsel who has filed Criminal Appeal
No.1029 of 2014 and Criminal Appeal No.1004 of 2014 on
behalf of PW.2 questioning the acquittal of A2, A3 and A9 for
the offence under Sections 120-B, 302 r/w 120-B of IPC and
also acquittal of A5, A7 and A8 for the offences under
Sections 307, 341 r/w 34 of IPC, has submitted that the
evidence brought on record clearly indicates that there was
high handed attempts for tampering with the evidence and
influencing the material witnesses in spite of which the
prosecution could produce all the material witnesses before
the trial Court. But the trial Court failed to appreciate the
evidence of material witnesses which clearly indicates and
proved the involvement of A2, A3 and A9 also in the
commission of offence. The evidence of PW.1 is very clear
that A5, A7 and A8 were present at the scene of offence and
prevented the other public from rescuing PW.1 and in view of
the evidence of PW.1 that there was an attack against him in
the hands of A4, these three accused are liable for the
punishment under Sections 307, 341 r/w 34 of IPC, therefore,
he sought for conviction of these accused under the above
said provisions.
15 PSK,J & SSRN, J
16. The Additional Public Prosecutor who filed Criminal
Appeal (SR) No.45104 of 2015 also argued on the same lines
and sought for conviction of A2, A3 and A9 for the offence
under Sections 120-B, 302 r/w 120-B of IPC and also for the
conviction of A5, A7 and A8 for the offence under Sections
307, 341 r/w 34 of IPC.
17. According to the allegations in the charge sheet
and as per the evidence of PW.1, it is firstly alleged that there
is political rivalry between the deceased and A1 and since A1
was not happy with the importance that was acquired by the
deceased and PW.2, he has hatched a plan to eliminate the
deceased and in pursuance of the said plan, A1 said to have
contacted A2, who in turn secured the other accused and
engaged them for accomplishing their plan of murder of
deceased. According to the specific allegations made in the
charge sheet, when the deceased was proceeding from
Ramanthapur to Uppal, A4, A5 and A6 waylaid their car by
keeping the motorbike of A6 and made the deceased to get
down from the car and when the deceased got down the car,
A4 attacked him with a knife and killed him. The alleged
offence took place before 12.00 in the night. According to the
16 PSK,J & SSRN, J
specific evidence of PW.1, he got prepared a report with the
help of PW.10 and handed over the same to police, who
visited the Hospital. According to the evidence of PW.10, on
22-05-2007, at about 11.00 or 11.15 p.m., he came to know
that Jagadeshwar Reddy was stabbed to death and he visited
the house of deceased and from there he went to scene of
offence situated at IDA, Uppal, then went to Kamineni
Hospital. He has visited the scene of offence and reached the
Hospital at 12.00 in the night. He has specifically stated
before the Court that at 2.50 a.m., on 23-05-2007, he has
drafted a report to the narration of PW.1, and the same was
presented to the police.
18. In this case, when the trial was in progress, some
material documents and material objects were found missing
and the original report said to have been scribed by PW.10
and presented by PW.1 was one among those material
documents that got missed from the record. The learned Public
Prosecutor with the permission of the Court marked a photo
copy of the alleged report as Ex.P1. During his arguments
before the Court, the learned counsel for the appellants in
Criminal Appeal Nos.1029 of 2014 and 1004 of 2014 has filed
17 PSK,J & SSRN, J
a copy of the original report and advanced his arguments
based on the said report. Therefore, according to the
evidence of these two material witnesses, the defacto
complainant could prepare a report after 2.30 a.m., and
presented the same to police. According to the evidence of
PW.17, the then Inspector of Police, Uppal on the date of the
above said offence, on receipt of information about the attack
on the deceased, he proceeded to Kamineni Hospital,
L.B. Nagar and at 3.30 p.m., on 23-05-2007, he received a
report from PW.1 at the Hospital itself and by making an
endorsement, he referred the said report to SHO, Uppal with
a direction to register the same as a case and according to his
instructions, one Head Constable by name Narayan Das, who
is shown as LW.28 and who was not examined before the trial
Court registered a case and sent the case dairy to him.
PW.17 has claimed that Ex.P1 contain his signature and also
the signature of said Narayan Das. However, PW.1 from
whom this witness said to have received the report
categorically deposed before the Court that he know Muthyam
Reddy (PW.17) was S.H.O. of Uppal Police Station on that
particular day, but PW.17 did not visit him during that night.
18 PSK,J & SSRN, J
He never met PW.17 till his discharge from the Hospital. He
has also deposed before the Court that even after his
discharge, he was never enquired by PW.17 about this offence
and after signing the report, he did not sign any other report.
PW.10, who drafted the report to the dictation of PW.1 and
who was also with PW.1 at the time of his presenting report to
police deposed before the Court that PW.1 handed over Ex.P1
to police but he does not know the designation of the police
personal.
19. The cross-examination of PW.17 further shows
that he has received information about the above said offence
at 11.30 p.m., he made a General Case Dairy and proceeded
to the Hospital. He has received Ex.P24 i.e., certified copy of
printed F.I.R. and admitted before the Court that as per the
said printed F.I.R. one General Dairy was made at police
station at 4.34 a.m., It was elicited from PW.17 that till 3.30
a.m., on 23-05-2007, he did not receive any complaint from
anybody though he was at the Hospital. He has not verified
when HC Narayan Das dispatched the original FIR to the
Court. According to his further evidence, he has handed over
the case dairy file to PW.18 in pursuance of the instructions of
19 PSK,J & SSRN, J
ACP. However, as per the alleged instructions of
Commissioner of Police, Cyberabad vide Ex.P25 dated
23-05-2007, PW.17 was asked to hand over the investigation
to PW.19. The memo vide Ex P25 on the basis of which
PW.17 said to have handed over the investigation to PW.18
and on the basis of which PW.19 said to have took up the
investigation reads as follows :
"Since there are allegations against the local Police, the
case is entrusted to Inspector S.B.Sir P.Radha Kishan Rao for
further investigation under direct supervision of DCP (Crimes).
SHO Uppal is directed to hand over the CD file to Sri P.Radha
Kishan Rao immediately".
20. This memo was addressed to PWs.17 and 19 and
there was no reference about PW.18. However, PW.18 claims
that in pursuance of the alleged instructions of ACP, he took
up the case from PW.17 and said to have proceeded with the
investigation. PW.19 has admitted before the Court that
there were no such instructions for handing over the case file
to PW.18. The evidence of these three Investigating Officers
creates any amount of doubt whether really PW.18 conducted
any portion of investigation before PW.19 started the
investigation. As could be seen from the said memo, it is very
20 PSK,J & SSRN, J
clear that there were serious allegations against the Police
Department about the way the investigation was conducted
and a specific order was passed by the Commissioner of Police
to PW.17 to handover the investigation to PW.19. Therefore
the question of PW.17 handing over investigation to PW.18 is
itself doubtful. Though PW.18 claims that he has visited the
scene of offence, conducted a panchanama before two
independent witnesses, who are shown as LWs.20 and 21 in
the charge sheet, they were not examined before the Court.
There is no explanation from the prosecution as to how PW.18
could conduct inquest at Kamineni Hospital when the death of
the deceased was declared in the mid night of 22/23-05-2007
itself, and as to how the dead body was kept at the hospital.
The recovery of blood-stained clothes of the deceased by
PW.18 also creates any amount of doubt because PW.19
categorically deposed before the Court that the shirt shown to
him at the time of his evidence was not the shirt that he
produced before the trial Court.
21. Even though a highly reputed political leader was
killed in a public place and though another highly influenced
political leader was shown as first accused in the said
21 PSK,J & SSRN, J
assassination and though there were allegations against the
local police officers, these three Investigating Officers acted in
a most negligent way and their investigation is nothing but
perfunctory investigation. There is no explanation from the
prosecution as to whom PW.1 presented his report and as to
how PW.17 claims that he received Ex.P1. In fact, the original
of alleged report of PW.1 was not available before the trial
Court at the time of examination of PW.1. As could be seen
from the allegations in the charge sheet, and in view of
political rivalry that was explained by the prosecution, one can
expect how the thing must have happened at the scene of
offence, and at the hospital. Soon after the alleged attack,
the deceased was shifted to Kamineni Hospital. The alleged
attack was at about 10.50 or 11.00 pm. The inspector of
police, Uppal, who is examined as PW 17 claims that he,
having received the information about the said attack, said to
have made an entry in the general diary and rushed to the
hospital, which is very close to the police station. But no
report was presented till 4 am next day. Even though PW.17
claimed that he received the original of Ex.P1 from PW.1 at
the hospital, PW.1 specifically deposed that he did not present
22 PSK,J & SSRN, J
any report to PW.17 and in fact he did not see the said
Investigating Officer. He did not state to whom he has
presented his report. Therefore, the prosecution failed to
explain as to how the report reached the police station. It is
very strange to accept in such a high profile murder case,
where there were serious allegations against the police as per
the memo issued by Commissioner of Police itself, no
complaint was lodged with the police till more than 6 hours,
and as per report vide Ex.P1 it is quite clear that a detailed
lengthy report was presented before police.
22. PW.1 did not dispute the averments/allegations
made in Ex.P1 report, therefore, if the contents of report are
taken into consideration, it was his case at the time of his
report before the police that at about 10.45 p.m., on
22-05-2007, when they reached Indian Oil Petrol Bunk at IDA,
Uppal between Ramanthapur and Uppal Circle, two persons
who came before their car, stopped the motor-bike in front of
their car and Jagadishwar Reddy got down from the car and
went near to the motor-cycle. Pillion rider of the above
referred motorbike suddenly took out a knife and on seeing
the same, the deceased rushed towards the car, but the
23 PSK,J & SSRN, J
pillion rider stabbed the deceased, thereby, PW.1 got down
the car and went there to see the deceased but he was
attacked by the same person on his left elbow.
23. It is the further case of PW.1 as per his report
that he found a white car from which two more persons got
down, but nowhere in the said report he has stated that 3
more persons came to the scene of offence and surrounded
the scene of offence and prevented the others from rescuing
deceased. As per his evidence before the Court, those three
persons whom he has identified as A5, A7 and A8, came to
the scene of offence on a motor-bike. After the offence, they
fled away on the same motor-cycle. However, in the cross-
examination, it was elicited from PW.1 that he has signed
Ex.P1 report after reading the contents and in the said report,
he has mentioned two person came on a motor-cycle and two
more persons came to the scene on a white Indica Car and all
of them attacked the deceased. He has also admitted he got
mentioned in Ex.P1 that he cannot identify other persons and
Ex.P1 is silent about the arrival of three persons on a motor-
cycle.
24 PSK,J & SSRN, J
24. As could be seen from the record placed before
the Court, PW.1 was first examined before the Juvenile Court
where a separate charge sheet was filed against A6. In the
cross-examination of PW.1, he has categorically stated that he
has stated before the Police that he has identified only three
persons among the four, who came on car and bike. It is
elicited from PW.1 that in his evidence before the Juvenile
Court, he did not say about the arrival of three more persons
on a motor-bike, while the offence was taking place or those
three persons surrendering the scene of offence and
threatening the others from saving the deceased. PW.1
categorically admitted before the trial Court that in his
evidence before the Juvenile Court, which was recorded much
prior to the evidence of the present Sessions Case, he has
stated about the arrival of only two persons on a motor-cycle
and one among them stabbing the deceased and it is also
admitted by PW.1 that in his report, he did not mention one
among the three persons armed with a knife and threatened
the general public.
25. Therefore, the above referred cross-examination
coupled with Ex.P1 clearly indicates that it was the specific
25 PSK,J & SSRN, J
case of PW.1 at the time of his report before police that two
persons have stopped their bike in front of their car and one
among them was the pillion rider of the bike stabbed the
deceased and when he tried to intervene, he caused an injury
to PW.1 and in the meanwhile, two more persons reached the
place in a Indica Car. Therefore, what all PW.1 stated before
the Court is only an afterthought attributing something
against A5, A7 and A8.
26. To connect these three accused with the alleged
offence, the prosecution sought to rely on the evidence of
PWs.5, 6 and 7. As rightly argued by the learned counsel in
these appeals, there is no explanation as to how the
Investigating Officer i.e., PW.19 could know their presence at
the scene of offence. It is elicited from these three witnesses
that they did not visit the police station nor they have
informed their witnessing the offence to any persons
interested on behalf of the defacto complainant. If really they
were present at the scene of offence and witnessed the
incident and approached the police during that night, their
statements could have been recorded by PW.17 or PW.18. The
cross examination of these witnesses indicates as to how they are
26 PSK,J & SSRN, J
interested and related to the deceased and his associates.
Therefore, the examination of PWs.5, 6 and 7 about three
days after the alleged incident creates any amount of doubt
whether really they were present and witnessed the offence.
Except the evidence of these three witnesses whose presence
at the scene of offence is highly doubtful, and evidence of
PW.9, there is no other incriminating material to believe the
presence of the accused at the scene of offence.
27. In order to prove its case, the prosecution also
sought to rely on the evidence of PW.9, who was a auto
driver. According to his evidence before the Court, on 22-05-
2007, he started at Abids with three passengers to drop them
at Uppal X Road and reached near Petrol Bunk at IDA Uppal at
10.30 or 10.45 p.m., He stopped the auto for purchasing
petrol. He found a Zen car coming from Ramanthapur and he
noticed another motor-cycle coming in the same direction and
pillion rider of the motor-bike stabbed the person who was in
white dress, who got down from the car. PW.9 further stated
before the Court that in the meanwhile three persons came to
the scene of offence on another motor-cycle and one of them
threatened the public. PW.9 tried to explain that he was
27 PSK,J & SSRN, J
present and witnessed the entire offence. PW.9 claims that
he dropped the passengers at Uppal X Roads and while
returning, when he stopped the auto, police enquired from
him the number and he was able to say the number of motor-
cycle that he is said to have noticed at the scene of offence.
Though PW.9 claimed that on the next day itself, he was
called by police, this portion of his evidence was not
supported by the evidence of Investigating Officer, who said
to have examined him. The evidence of PW.9 that he has
witnessed the offence and after dropping the passengers
again he came to the spot and informed the police about the
offence etc., creates any amount of doubt whether he really
was there at the scene of offence. Therefore, the evidence of
PWs.5, 6, 7 and 9 clearly shows that they are only planted
witnesses to speak something against the accused.
28. It is true, the prosecution sought to rely on the
evidence of PW.19 and PW.13 to connect these accused based
on recovery of some money. In view of the death of a strong
political leader in the general public, the news must have
flashed in and around the city. If any person really involved
in the commission of offence must be conscious of the follow
28 PSK,J & SSRN, J
up action by the police. In such a case, no prudent person if
really involved in murder of a political leader, at the instance
of another strong political leader could venture to stay back at
his house expecting the arrival of police, to produce the
money which he said to have collected for commission of the
said murder. In this case, PW.13, who is examined to prove
the alleged confession and recovery deposed before the Court
that the police, who have arrested A2 interrogated him in his
presence and A2 said to have confessed his involvement in
the above said offence, the police as well as the mediators
(punch witnesses) to the houses of the other accused.
According to the mediators as well as PW.19, when the police
officials proceeded to the house of accused, they were readily
available at their respective houses and said to have produced
money by saying that they have received the said amount as
a reward for their involvement in the above referred case.
As already stated above, if really, they have involved in the
commission of murder and they collected some money from
A1 or other interested persons, there was no necessity for
them to wait at their houses and such a conduct as projected
by PW.19 is highly unbelievable.
29 PSK,J & SSRN, J
29. If the evidence of PWs.5, 6, 7, and 9 whose
presence at the scene of offence is doubtful is excluded and if
the alleged confession which these appellants said to have
made by staying at their houses in the above referred
circumstances is also excluded, there is no incriminating
material against A5, A7 and A8. It is true police have
produced some cash before the court to show that the same
was recovered from the accused. As could be seen from the
cross-examination of Investigating Officer, no note-numbers
were mentioned in the alleged confession. In view of the
status of the de-facto complainant and other interested
witnesses, it may not be difficult for the police to produce
such a small amount as it was recovered from the accused.
30. The trial Court having discussed all these
discrepancies still convicted A5, A7 and A8 of the offence
under Section 302 of IPC with the aid of 34 of IPC. In view of
the admissions made by PW.1 in the cross-examination, in the
light of suspicious circumstances under which Ex.P1 was
brought into existence and in view of the doubt about the
presence of A5, A7 and A8 at the scene of offence, it cannot
be said that these three accused have shared common
30 PSK,J & SSRN, J
intention with A1 or A2 for killing the deceased. The entire
case is against A4, who died during trial in the case and
against whom the case was already abetted. To believe that
A5, A7 and A8 had common intention of killing the deceased,
there must be positive evidence to show that they shared the
common intention with A1 or A2. The presence of these three
accused at the scene of offence itself is highly doubtful. The
recovery of money in pursuance of their alleged confession
from their respective houses in the heat of the above stated
circumstances is also highly doubtful. But the trial Court in
spite of observing that there was no chance for PW.7 to watch
and hear the conversation between A1 and A2 about their
plan to kill the deceased still held that the prosecution was
able to prove guilt of these three appellants for the offence
under Section 302 r/w 34 of IPC which is unsustainable.
31. The trial Court ought to have considered the oral
evidence of PW.1 including his cross-examination, where in,
certain important omissions were brought. In fact, the
Investigating Officer - PW.19 himself while filing the charge
sheet, tried to explain the discrepancy about the averments
made in the report and evidence of these material witnesses.
31 PSK,J & SSRN, J
If really there was an incident as analyzed/narrated by
prosecution in the charge sheet and these three appellants
really got down a motor-bike and prevented the other people
from saving the deceased, it could not have escaped the
attention of PW.1 and he must have mentioned the same in
the report itself. The important omissions elicited from PW.1
which was duly proved by the cross-examination of the
Investigating Officers, creates any amount of doubt whether
really these three accused were present and participated in
the offence as deposed by PW.1. Therefore, the conviction
recorded against these three accused is liable to be set aside.
32. The trial Judge while appreciating the evidence of
material witnesses having considered the discrepancies and as
there is no acceptable evidence to believe the involvement of
A2, A3 and A9 rightly acquitted them from the charges that
were framed against them. In addition to this, in the light of
what is observed in the previous paragraphs, the presentation
of a report before the police, with so many details itself is
doubtful and there is no acceptable explanation from the
prosecution as to how the report reached the police station.
The evidence of these three Investigating Officers although
32 PSK,J & SSRN, J
there is a memo from Commissioner of Police directing PW.17
to entrust the investigation to PW.19, still PW.18 claims that
he has conducted a portion of investigation, which is not
believable. The specific times mentioned in the material
documents also creates a doubt as to whether PWs.1 and 10
presented a true version or prepared a politically motivated
report and presented the same to the police.
33. There is Test Identification Parade on which the
prosecution strongly relied to connect the accused with the
present case. But in the light of the evidence of PW.19 that
he has produced all the accused before the press and as there
is long gap between the date of arrest and the requisition for
police for conducting Test Identification Parade, there is every
chance for the material witnesses to see the accused, who
were in judicial custody, so that they can easily identify them
as culprits at the time of Identification Parade. Therefore, much
weight cannot be given to the said Test Identification Parade.
Therefore, for all these reasons, the prosecution was not able
to prove the guilt of all the accused for the charges that were
framed against these accused and the trial Court rightly found
A2, A3 and A9 not guilty, recorded conviction against A5, A7
33 PSK,J & SSRN, J
and A8 for the offence under Section 302 r/w 34 of IPC is
unsustainable.
34. Therefore, the appeal preferred by A5, A7 and A8
vide Criminal Appeal No.950 of 2014 deserves to be allowed
and the Criminal Appeal Nos.1004 of 2014, 1029 of 2014 and
Criminal Appeal (SR) No.45104 of 2015 are liable to be
dismissed.
35. In the result, the Criminal Appeal No.950 of 2014
is allowed. Conviction of A5, A7 and A8 is set aside and they
shall be set at liberty, if, they are not required in any other
cases, and fine amount if paid, shall be returned to them after
appeal time is over.
Criminal Appeal Nos.1004 of 2014, 1029 of 2014 and
Criminal Appeal (SR) No.45104 of 2015 stands dismissed.
Consequently, Miscellaneous petitions if any, are closed.
No costs.
___________________
JUSTICE P.SAM KOSHY
__________________________
JUSTICE SAMBASIVARAO NAIDU
Date: 30.07.2024
PLV
34 PSK,J & SSRN, J
