Andhra HC (Pre-Telangana)
Manepalli Anjaneyulu vs State Of A.P. on 30 April, 1999
Equivalent citations: 1999(3)ALD517, 1999(1)ALD(CRI)806, 1999(3)ALT632, 1999CRILJ4375
Author: Vaman Rao
Bench: Vaman Rao
JUDGMENT
1. Criminal Appeal No.1220 of 1997 has been filed by A2. Criminal Appeal No.1221 of 1997 by A4 and A5, Criminal Appeal No. 1389 of 1997 by A3 and A6 and Criminal Appeal No. 1733 of 1997 by A7.
2. A1 to All faced trial on eight charges in Sessions Case No.11 of 1991 on the file of the Sessions Court, West Godavari at Eluru. A1 and A8 to All have been acquitted of all the charges. A1 to A11 were also acquitted of the charges under Sections 120-B read with Section 302 IPC.
3. A3 to A7 were convicted for the offence under Section 395 IPC read with Section 397 IPC and sentenced to undergo rigorous imprisonment for ten years and to a fine of Rs.1,000/- each in default to suffer simple imprisonment for one month. A3 to A7 have been found guilty under Section 396 IPC but no separate sentence has been imposed. A3 is found guilty of the offence under Section 394 IPC. But no separate sentence has been imposed. A2 has been found guilty of the offence under Section 396 IPC read with Section 114 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for six months. Sentences in respect of each accused were directed to run concurrently. It may be mentioned that all the accused including the appellants have been acquitted of the charge under Section 120-B IPC read with Section 302 IPC.
4. The facts relating to this appeal may be stated briefly as follows : All the accused conspired and on the intervening night of 26/ 27th September, 1989 at Mukkala village committed dacoity in the house of Satyanarayana Murthy. During the course of commission of dacoity they caused death of the deceased Suryanarayana Murthy. A2 is the paternal uncle PW6 and the deceased. PW13 M.Annapurna is the mother of the deceased. PW25 S. Veeravenkata Ramana and PW26 M.Seethamahalakshmi are related to PW13. According to PW5 S. Venkatagiri, about 2 days prior to the date of the incident, he went to the house of A10 for the purpose oP prostitution. He noticed A1, A2, A8 and A9 talking to themselves and they were planning lo commit theft at some place. They mentioned that there would be good properly at that place. Subsequently, P\V5 went to his village. According to the prosecution, PWs. 3, 6, 27 and the deceased and his wife live together in the same house. The main door of the said house faces east PW13 would sleep in the southern room, and in the rear side terraced portion; PW27 M. Venkatarathnam and his wife reside. The front portion of the house consists of a tiled Manduva house. A2 also lives in a portion of the same house and he has one room on the northern side and one room on the southern side as his share. The Manduva hall is common for both of them. On the intervening night of 26/27-9-1989 PW6 M. Venkataramana and the deceased were sleeping in the western room on a folding cot. A2, his wife and their son were sleeping in A2's portion. The Manduva room would be bolted from inside during night. PW6 would not bolt his room from inside. At about 1 A.M. blankets were placed on PW6 and the deceased and pressed. When they wriggled out they saw five persons. PW6 and the deceased were tied with ropes in hands and legs. The deceased pleaded that he would hand over the keys and the cash and also whatever they required. But the deceased was dragged from his cot and was beaten indiscriminately by A3 to A7. A4 lifted PW6 and dragged him to be taken to the room of his mother PW13. When PW6 refused to call his mother he was beaten with hands. On hearing the cries of PW6, PW13 opened the door and A3 to A7 along with PW6 entered the roam of PW13 and threatened her and tied their hands and legs. A6 took the key from under the bed of PW13, opened the steel almirah and took gold and silver jewellery. A3 removed ornaments from the person of PW17 P.Obilesu. A4 opened wooden almirah which however did not contain any valuables. A5 cut off telephone line while A7 searched almirah in the wall but no valuables were found. A3 placed his knife on the right upper arm of PW6 and caused knife injury.
5. As PW6 and PW13 refused to open the iron safe, the culprits brought A2 who took the safe key from the steel box and opened the iron safe. While going away A2 tore his lungi and tied the pieces to the hands and legs of PW6 and PW13. While going away A2 to A7 bolted the door of the room of PW13. After the culprits went away, PW6 removed the knots opened the back door of the house, went to the house of his junior paternal uncle's son and informed about the theft. Then they opened the door through the front side and went into the room and found the deceased lying with bleeding injuries. Then PW24 Dr. M. Gopalakrishna was asked to come and after examining the deceased he pronounced him dead.
6. On 27-9-1989 at about 0-15 hours PW37 the Inspector of police, Thanuku received telephonic message from A2 about the incident. PW37 instructed the Sub Inspector of Police PW36 to go to Mukkala village. PW36 along with his staff reached Mukkala village at about 4 A.M. and found the deadbody. At about 6 A.M. PW36 went to the house of PW6 who gave Ex.P4 written report. On the basis of Ex.P4, PW36 registered a case in Crime No.44 of 1989 and Ex.P17 is the FIR.
7. PW37 took up further investigation. He got the scene of offence photographed. Ex.P71 to P76 are the photographs. The panchanama of the scene of offence was prepared in the presence of PW12 and another under Ex.P9. PW37 prepared sketch of the scene of offence under Ex.P9. He then conducted inquest over the dead body under the inquest report Ex. P10. He sent the injured PW6 to the Government hospital Thanuku. PW16 Dr. Vishnupriyadevi examined him and issued wound certificate Ex.P33. The body was sent for postmortem examination. PW19 Dr. R. Prasada Rao, Medical Officer, Government hospital conducted autopsy over the deadbody. Ex.P42 is the postmortem certificate. The cause of the death, according to the doctor was due to multiple injuries.
8. On 28-9-1989 PW6 gave another report lo PW37 under Ex.P5 furnishing the details of the properties lost. The Finger Prints Expert PW14 went to the spot and developed chance prints on five steel utensils at the scene of offence which were seized under Ex.P11. On 7-10-1989 PW37 arrested A2 at Thanuku railway station and got a confession recorded under Ex.P14 mediator's report, and one knife was recovered from A2. A2 led them to the house of A10. A2 brought 67 valuables and one bag i.e. MOs. 123 lo 159, 197 to 226 and 196 from the house of A10. Ex.P15 is the mediator's report. A10 is said to have produced MOs. 115 to 120. A2 led them to Vyavari village where A3 was arrested. PW37 seized a knife and MOs. 62 to 88 and also MO227 from A3 under Ex.P17. From the shop of one Apparao A3 produced MOs.229 to 232 which were seized under Ex.P18. A3 produced MOs.89 to 114 and 228, at his house. On the same day A2 led the police party to the house of PW20 C. Narayanamma where A6 was arrested. PW37 seized MOs.25 to 33, 233 (bag) and one knife, under mediator's report Ex.P19. At the same place he arrested A4 and seized MOs.44 to 61 and MO234. He also arrested A5 and seized MOs.3 to 24 and MO236. A6 handed over 3 blood stained clothes i.e. MOs.237 to 239. On the same day at 7-15 PM, All was arrested and MOs.240 and 246 were seized under Ex.P20 mediator's report. On the same day PW37 seized MO1S4 from A2 under Ex.P13. On the same day at 7 AM. PW37 proceeded to the house of A9 and seized MO 122 under Ex.P22. Subsequently he went to the house of A8 and seized MO121 under Ex.P23. On the same day specimen handwriting of A2 and A3 were also taken.
9. On 28-9-1989 PW23 the I Additional District Munsif, Thanuku conducted test identification parade of A3 to A7. PWs.4 to 6 and PW13 participated in that parade to identify the suspects. Bx.P58 is the identification proceedings. As per the evidence of PW23 RW4 identified A3, A6 and A7 but PW5 did not identify any one. PW6 identified A3 to A7 and PW13 identified A3, A5 and A7.
10. To prove the above case the prosecution examined PWs.1 to 37 and got Exs.P1 to P90 and MOs.1 to 256 marked. The accused have not chosen to examine any defence witnesses on their behalf. However Ex.D1 was marked as contradiction in the 161 Cr.PC statement of PW5.
11. On this evidence the learned I Additional Sessions Judge, West Godavari convicted and sentenced the appellant-accused as shown above. It is this judgment which is now challenged in this appeal.
12. The question for consideration is whether the prosecution has succeeded in bringing home the offences against the accused for which they have been convicted beyond reasonable doubt?
13. The prosecution in this case relies on the following evidence :
(i) Eye witness account of PW6, Manepalli Venkata Rama Rao; PW13, Manepaili Annapoornamma, the wife of the deceased; PW25, Srikakulapu Veera Venkata Ramana; and PW26, Manapalli Seethamahalakshmi.
(ii) Evidence as to recovery of property involved in the dacoity from or at the instance of the accused as given by PWs.12 and 14, the panch witnesses, PW37, the Investigating Officer and PW15 who held identification parade for articles;
(iii) Evidence regarding movements of the accused before the incident;
a. The evidence of PW35 that A2 collected A4 to A6 on a scooter near 'Y' junction to Tanuku (He identified A4 to A6 in the identification parade) b. Evidence as given by PW5, who is a resident of Mukkamala village, that when he went to A10's house for the purpose of prostitution where he saw A1, A2, A8, A9 and two or three others and heard conversation between A1 and A2 in which they discussed about their planning to commit dacoity and two days thereafter he saw the news about murder and dacoity at Mukkamala village from the news papers and he thought it was in pursuance of the conversation he heard the failed to identify any of the accused in identification parade).
c. The evidence of PW28 that he saw that A2 to A9 used to visit one Karuna Lodge, Tanuku and that he also saw A7 at that lodge (he identified A7 in the identification parade). Ex.P24 to P27 are the records and the registers relating to Karuna Lodge. The evidence of PW30 that during 1989-90, A9 used to stay now and then at Annapurna Lodge and A2 used to go and visit him. Ex.P40 is the register of arrivals of Annapurna Lodge and Ex.P63 is the entry relating to A9's arrival in the Lodge.
d. The evidence of PW27, Manepalli Venkata Ratnam, that he saw on 10-8-1989 i.e., about one and half a month prior to the incident of dacoity that A3 to A7 went to his house (the house where dacoity took place), knocked the door and asked for A2 and spoke to A2.
(iv) Circumstances elicited in the evidence of PW6 and other eye witnesses particularly implicating A2, including the evidence of Investigating Officer, PW37, that A2 had telephonic contacts with the other accused.
(v) Medical evidence in regard to injuries sustained by PW6 as given by PW16, who issued wound certificate, Ex.P33 and death of the deceased as stated by the Doctor PW19, who issued post mortem certificate, Ex.P42.
(vi) Evidence as to chance finger prints found at the scene of offence which were compared and identified as those belonging to A3, A4 and A6 as per the report, Ex.P34.
(vii) Evidence as to lodging of report, Ex.P4, on the morning of 27-9-1989 by PW6.
14. It may be mentioned at the outset that the trial Court has not believed the evidence of recovery of properties allegedly removed during the dacoity from the house of PW6 for the reasons stated at para No.27 of his judgment. A perusal of the relevant passages in the judgment of the trial Court would show that the learned Sessions Judge on a proper appreciation of evidence adduced on that behalf has held that the recoveries have not been proved.
15. The evidence as to the movements of the accused before the incident stated at serial No.3 above was ostensibly introduced for two purposes. Firstly in support of the charge of conspiracy to commit dacoity. The trial Court on proper examination of evidence in this behalf has rightly held that the charge of conspiracy and the abatement of offences have not been proved. This evidence could have another significance as to whether presence of A2 during the incident of dacoity was a participant in the offence or was his presence the result of compulsion and force exercised by the other accused in calling for him for opening the safe.
16. But, it may be mentioned here that the evidence of PW5 that when he went to A10's house for the purpose of prostitution, he saw A1, A2, A8, A9 and two or three others could be said to have some significance if he had identified any of the accused apart from A2 in the Court. He has not identified any of the accused in the Court and hence his evidence has no significance on the question of A2's involvement. PW35 in his evidence deposed that A2 collected A4 to A6 on a scooter near 'Y' junction to Tanuku. This evidence is perhaps adduced to show that it was Accused No.2 who made the preparations by collecting the other accused prior to the dacoity committed in the house of PW6. But, in his examination in-chief PW5 did not give the date when he saw the accused in the year 1989 at about 11.30 p.m. or 12.00 mid-night. This witness was permitted to be cross-examined by the Public Prosecutor. While in the Court he mentions only A2 as the person who collected A4 to A6, in his statement to the police he had mentioned the name of A9 also, The evidence of this witness can scarcely be pressed into seivice as a piece of evidence implicating Accused No.2. It may further be noted that he identified A4 to A6 in the Court and value of his evidence in this regard will depend on the reliability of his identification of A4 to A6, which will be discussed separately.
17. The other piece of evidence in this category is the evidence of PW28 who deposed that about 8 years prior to his deposition, he worked as room boy in Dwaraka Lodge Tanuku. He claims to have seen A2 and A9 coming to that lodge and he also saw A7 near that lodge. He says that he was residing in a house on rent by the side of Karuna lodge at Tanuku which is behind town hall. At the request of receptionist, Hari, in that lodge he used to sit at the reception counter in Karuna Lodge for one or two hours in his absence. His evidence is that A2 to A9 used to visit Karuna Lodge. He has seen A7 also at Karuna Lodge. Even if A2 was visiting A9 at Karuna Lodge and if even A7 was present there, it does not in any way implicate A2. It is necessary to remember that the charge of conspiracy and abetment having been negatived, this evidence as such does not in any way highlight A.2 as a culprit. However, even if his evidence is believed that would be subject to the reliability of his identification of A.2 in the Court by the witnesses.
18. Another piece of evidence under this category is the evidence of PW27 Manepalli Venkatarathnam, who deposed that he saw A.3 to A.7 at his house (where the dacoily took place) on 10-8-1989 a month and half prior to the incident of the dacoity who knocked the door and asked for A.2 and A.2 spoke to them. Considering the gap between the incident and the alleged seeing by PW7 of A3 to A7 at this house, this evidence does not appear to be significant. Further, it is highly improbable that if A3 to A7 were conspiring with A2 to commit dacoity, they would have visited the house of A2 for discussing it. At any rate, even this evidence would be of any significance if the identification of A3 to A7 by PW27 could be depended upon.
19. Thus, the case of the prosecution hinges on the reliability of identification of the accused by PWs.6, 13 and 25, who are the eye witnesses to the occurrence. Leaving aside the question whether A2 voluntarily participated in the offence committed by the other accused and whether he abetted the offence, it is nol disputed by the learned Counsel for the accused that if the, identification of the appellants (A3 to A7) by PWs.5, 13 and 25 is accepted the occurrence of the incident and the commission of the offence under Section 395 IPC would be established and as during the commission of the offence of dacoity murder was committed by one or more of the accused all the appellants could be held guilty for the offence under Section 396 IPC also. But the learned Counsel for the appellants points out that when the accused have been convicted for the offence under Section 396 IPC it excludes the offence under Section 302 IPC for which the appellants have been convicted and sentenced for life. There is some substance in this contention. It is apparent that the accused cannot be convicted simultaneously for the offence under Section 396 IPC and also for the offence under Section 302 IPC unless there is specific evidence that one of the accused inflicted injuries on the deceased with the necessary intention or the knowledge so that particular accused could be fastened with the offence under Section 302 IPC. As pointed out by the learned Counsel for the appellants there is nothing in the facts arid circumstances of this case to show that al! the participants in the offence of dacoity had common intention of committing the murder of the deceased. It may also be seen that when the charge of conspiracy under Section 120-B IPC has been held not having been made out by the trial Court against A.2, who is said to have merely assisted the other accused in the commission of dacoity he cannot be fastened with the liability for the offence under Section 396 IPC. The abatement of assistance of A.2 obviously is said to relate to the commission of the offence of dacoity and it does not relate to the commission of the offence under Section 302 IPC. Thus even if the prosecution case as against A2 is accepted he cannot be convicted for the offence under Section 396 IPC read with Section 114 IPC but he can only be convicted tor the offence under Section 395 I PC read with Section 114 IPC. Thus the crucial question is whether the identification of the appellants, as participants in the offence in the house of the deceased can be believed. In fact, during the course of arguments the only ground on which the convictions of the appellants other than A.2 is challenged is that the identification of A3 to A7 by the witnesses PWs.6, 13. 25 and 26 cannot be believed.
20. It may be mentioned that the fact that the deceased Mandepalle Surya-narayana Murthy was murdered during the dacoity in his house by the culprits who participated in the said dacoity is not disputed, it is the identification of the appellants by the eye witnesses which is challenged. At any rate, his death is proved by abundance of evidence of the eye witnesses PWs.6, 13, 25 and 26 and the medical evidence given by Professor of the Forensic Science Medicine PW19. PW19 has found as many as 20 injuries on the body of the deceased and he opined that the deceased would have died of shock and haemorrhage due to multiple injuries as stated by him in his postmortem report Ex.P.42.
21. The crucial question is whether the evidence of PWs.6, 13, 25 and 26 as to the identification of the appellants can be believed? The learned Counsel appearing on behalf of the appellants Sri C. Padmanabha Reddy and Sri C.B. Rammohan Reddy contended that the identification evidence suffers from serious infirmities. They rely on various circumstances which according to them render to the identification unworthy of acceptance. The learned Public Prosecutor on the other hand counters this argument by stating that the fact that these witnesses have identified the appellants (other than A2) in the identification parade provides sufficient corroboration to their identification evidence in the Court and must be accepted. It is not in dispute that the appellants and the other accused who have been convicted by the trial Court except A2, are strangers to these witnesses.
22. The first circumstance pointed out by the learned Counsel for the accused is that in their earliest statements to the police given by these witnesses, they had not given any descriptions or identification marks of the accused. Even in the Court these witnesses have not given any descriptions of the culprits. The contention is that as these witnesses have not given any descriptions or identification marks of the appellants, their evidence as to the identification made in the Court cannot be believed. It may be seen that in their evidence in the Court these witnesses have not referred to the accused with reference to their descriptions or identification marks. They seemed to have merely pointed out the accused standing in the Court. Such evidence, according to the learned Counsel for the appellants, is of no avail. Support is sought from the decision of the Supreme Court in the case of Wakil Singh v. State of Bihar, . It was observed by the Supreme Court in that case as follows :
"In the instant case we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity nor did the witnesses give any identification marks viz. stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded."
23. As to the identification parade it is assailed on the ground that it was conducted about two months after the alleged offence. In the case of Hari Nath v. State of Uttar Pradesh, , the Supreme Court observed that test identification parade held after unexplained delay of four months detracts from its credibility and that the benefit of this unexplained lack of promptitude in holding test identification enured to the accused. In the case of Soni v. State of Uttar Pradesh, , the Supreme Court held thai identification parade held after a lapse of 42 days from the date of arrest of the appellani throws the doubt on the genuineness of the parade. It was also observed that after such a lapse of time it is difficult that witnesses would be remembering facial expression of the accused. In the case on hand the identification parade was held on 28-11-1989 while the dacoily occurred on 28-9-1989 and the appellants were arrested on 7-10-1989. Thus the parade was held two months after the incident and about seven weeks after the arrest of the accused. These aspects of identification parade in this case certainly invite the principle enunciated by the Supreme Court in the above cases and it has to be held that identification parade after two months of the incident would be considerably eroded of its evidentiary value.
24. The learned Public Prosecutor, however, seeks to present the identification parade as of significant value by pointing out that the learned Magistrate, PW23, who conducted the parade examined the witnesses PWs.6, 13, 25 and 26 and during their statements before the parade they mentioned the descriptive particulars which would enable them to identify. As stated by PW23, the learned Magistrate, Ex.P53 is the statement of PW6 recorded by him. It is true that as seen from Ex.P53 PW6 in his statement to the Magistrate has stated that "three accused are short in size. One was black. One was having moustaches. One was of medium complexion. One was lean having leucoderma on the lip. One was lean. Including Anjaneyulu (A2) six accused came". This description mentioned only the complexion and the build of the culprits. One is described as having moustaches. They scarcely constitute a significant description which would enable the witnesses to identify the culprits. In regard to one culprit, a notable identification mark is mentioned that he was having leucodenna on his lip. This in itself would be sufficient to pick up a person with such a patch of leucoderma among those who are present at the parade. This, information about the patch of leucoderma could have been easily conveyed to the witnesses. The evidence of PW23. the learned Magistrate who conducted identification parade, would show that no precautions were taken to include some non-suspects having such mark in the parade. Some other precaution like covering the mark on the alleged culprit and putting up similar covers on the lips of other non-suspects could have been taken but has not been taken. What is significant is that the evidence of PW6 does not disclose that he identified any of the culprits on the basis of descriptions given to PW23. In fact the record does not disclose that any of the accused among A3 to A7 had leucodenna patch on the lips. PW6 is said to have identified A3 to A7 as the culprits. In the light of the above circumstances, this identification has no significance.
25. PW13 is said to have identified A3, A5 and A7 out of the suspects as the culprits. The statement of PW13 was recorded before the parade by PW23 in Ex.P47 In her statement PW13 gave the following descriptive particulars of the culprits :
"one accused is having moustaches, another accused is having leucodenna spots. One accused is red and lean aged in between 30 to 40. One is stout and black in colour. One is of red colour, stout and short in size (as per translation)"
The comments made in respect of identification by PW6 apply equally to the identification of PW13 at the parade. It may be repeated that the record docs not show that this witness also identified any of the culprits with reference to their description as found in her statement recorded by the Magistrate in Ex.P47 before the parade.
26. The statement of PW25 was recorded by the Magistrate as in Ex.P55 before the parade. This witness is said to have identified A3 to A7 as the culprits. PW25 in his statement before the Magistrate (Ex.P55) gave the following descriptive particulars of the culprits.:
"one accused is having moustaches, one accused is having spots on the lip. One accused is having a spot on the face. One is lean and tall with big eyes. One is short."
The comments in respect of the identification by the above witnesses equally applies to this witness also. As stated above the record in this case including the deposition of the witness does not show that they picked up the accused in the Court during the evidence with reference to the description given by them in their respective statements recorded by PW23 before the parade.
27. PW27 has identified A3 to A7 in the Court as the persons who came to his house one and half months prior to this incident to meet A2. He has not participated in the identification parade. His identification of A3 to A7 in the Court cannot be taken seriously on the basis of a chance look at them when according to him the said accused came to their house to see A2.
28. It may be pointed out that in the absence of any description of the culprits having been given by these witnesses during their examination by the police under Section 161 of Cr.PC the fact fhat they have chosen to give some description when examined just before the parade cannot be considered as a circumstance to strengthen the evidence of identification in the Court. Any descriptions coming forth from ihese witnesses after considerable time after the arrest of the accused cannot be considered as significant inasmuch as by that time such descriptions could have been made available to them by any of the police officials associated with the arrest of the accused, inasmuch as there is nothing to show that the witnesses, PWs.6, 13 and 25 actually identified the accused in the Court with reference to any description of the accused, the fact that they gave some description of the accused, the fact that they gave some description to the Magistrate before the parade is of no significance.
29. There is another circumstance which completely robs the evidentiary value of identification parade in this case. It is admitted by the Investigating Officer, PW37, in this case that after the arrest of the accused, himself and the Superintendent of Police, Rayaliah, and staff posed for photograph with A2 to A6. It is also admitted by him that the photographs of A2 to A6 were taken with the names written on the planks in their hands. He also admits that these photographs were sent for publication in the news papers. This circumstance would render the identification parade farcical. There is every possibility that these photographs with the names of the culprits would have been used to brief and prepare the witness who went to identify the culprits at the identification parade.
30. The approach of the learned Sessions Judge on this aspect does not appear lo be sound. After finding that the photographs of the culprits were taken and they were published in the news papers, the learned Sessions Judge posed a question as follows:
"But the question is whether the witness had any opportunity to see the said photos.?'' It is a though it was necessary for the accused to prove that the photographs were infact shown to the accused. The very fact that the photographs were taken and they were published in the news papers, is a circumstance which discloses that there was abundance of opportunity for the witnesses to see the said photographs. Mere denial by the witnesses that they did not see the photographs of the accused cannot be taken at face value in such cases. The identification proceedings, Ex.P58, show that the accused did complain to the Magistrate at the time of the parade that their photographs were taken when they were in lockup and they were shown to the witnesses before they were remanded. Considering all these circumstances, the evidence of PWs.6, 13 and 25 as to identification of A3 to A7 must be held to be doubtful in value.
31. The prosecution relics on the evidence of finger print expert PW17. According to him, some chance prints were found at the scene of offence, which were developed and photographed. Five finger prints were found suitable for comparison and when they were compared with the finger prints of the accused, it was found that print 'A' tallied with the finger print of the left ring finger of the fourth accused and prints 'B' and 'D' tallied with the thumb impression of the 6th accused and chance print 'R' tallied with the left index finger impression of the 3rd accused and the photo of chance print T' tallied with the left middle finger print impression of A3. Exs.P35 to P39 are the comparative charts relating to the chance finger prints with the identical finger prints of the suspects. The learned trial Judge found that this evidence corroborates the other evidence of the prosecution to establish the participation of A3, A4 and A6 in the incident of dacoity. It may be mentioned that the photographer who took the chance finger prints has not been examined and the finger prints photographs taken have not been filed. There is nothing to show that the finger prints of the accused have been taken before the Magistrate. PW17 in his evidence merely slated that the finger print slips of five accused persons were received by him from the Inspector of Police, Tanuku on 15-10-1989 with which he compared the chance finger prints. His evidence docs not reveal as to who took the finger prints of the accused and where they were taken. The concerned Inspector PW37 has nowhere stated in his evidence whether he has taken finger prints of the accused and if so whether he has taken them on his own or he has taken them in the presence of the Magistrate, though he speaks of having taken the specimen handwriting of A1. In the absence of such evidence, no sanctity can be attached to the evidence of finger print expert inasmuch as there is no evidence to show that the finger prints with which the chance finger prints were compared were those of the accused.
32. The next question is about the involvement of A2. The question of identification of A2 by PW6, 13, and 25 the eye witnesses to the incident does not arise inasmuch as A2 was not a stranger and in fact he is close relative of these witnesses residing in a portion of the same house. The prosecution version as given by PW6 is that he was asked by the culprits to open the iron safe but he refused to open the same. According to him. one of the culprits (A3) placed knife on his right upper arm and caused knife injury to him. A3 also caused injury (o his right thumb with knife. In spite of it, himself and his mother refused to open the iron safe. Thereafter, according to PW6, the culprits talked among themselves that A2 may be brought there so that he may open the iron safe. Accordingly, A2 was brought there and he straight away took iron safe keys from the steel box kept in the wooden box attached to the cot and opened the iron safe with those keys. A2 also opened the secret locker inside the iron safe even though the existence of secret locker was not disclosed to anybody by them. It is further version of PW6 that after entering into the house, A3 to A7 straight away want to the places where they kept the valuables usually as if it was informed to them by somebody. It is further stated by PW6 that while going away A2 had torn his lungi into pieces and tied the pieces to the hands and legs of himself, his mother (PW13), Srinivas (PW10) and Sithamahalaxmi (PW26). It is also stated by PW6 that while going away A2 to A7 were laughing among themselves and bolted the door of his mother's room from outside by keeping all of them inside that room. The plea of A2 is that he was forcibly taken by the culprits and under threat and pressure he had to open the safe. It is quite probable that the accused might have gathered information that A2 being the close relative and residing in the same portion of the house might be in a position to know about the things in the house of PW6 and he might have been taken there and compelled to open the safe etc., But the specific circumstances referred to above as deposed to by PW6, if true, would certainly disprove the theory thai A2 was acting under compulsion of the culprits. It is not as though A2 accompanied the culprits or that the culprits called for the presence of A2 without attempting to have the safe opened on their own by subjecting PW6 and his mother to a considerable pressure. It was only when those efforts failed, A2 was brought into picture.
33. One such circumstance is that after enlering into the house, A3 to A7 straight away went to the place where they keep the valuables usually as if they were informed by someone. It will not necessarily connect A2 with the culprits inasmuch as their going straight to the place where valuables were kept could be based on some information which could have been furnished by anyone. It is not as though A2 alone could have given such information.
34. The next circumstance which has a tendency to incriminate A2 is that when the culprits were going, A2 had torn his lungi into pieces and tied pieces to the hands and legs of PW6, his mother, PW13, Srinivas PW10 and Sitamahalaxmi, PW26. Now this circumstance would almost be conclusive to show that A2 was a part of the gang. Another circumstance that while going away, the culprits A2 to A7 were laughing among themselves is also a circumstance inconsistent with the innocence of A2. But, it is pertinent to note that each of these incriminating conduct as deposed lo by PW6 is an improvement over his previous version given to the police. PW37, the Investigating Officer, admitted that PW6 did not state to him about the culprits to themselves that A2 may be brought there so that he would open the iron safe and about A2 straight away taking iron safe keys from the sleel box and about his opening the secret locker inside the safe. PW6 had also omitted to state thai A2 lo A7 went straight away (o the place where they kep! the valuables as if they were informed by someone. PW6 also omitted to state to the police earlier about A2 having torn his limgi into pieces and tying PW6 and others and about A2 to A7 laughing among themselves while going away. The version that while leaving. A2 tore his lungi into pieces and tied PW6 and inmates of the house pieces and tied PW6 and inmates of the house in their hands and legs is so conspicuous that it is improbable that PW6 under any circumstances could have omitted to mention this in his earlier version given to the police. In fact, if this was so, there is no reason why A2 would not have been mentioned in (he first information report as one of the culprits.
35. Thus, in view of the sweeping, far reaching and highly incriminating improvements made by PW6 with reference to the conduct of A2, his evidence, can scarcely be believed on this aspecl. Similar version was given by PW13 that the culprits talked about A2 being brought there and that A2 without anybody informing about the location of the keys straight away went and removed the iron safe keys which were kepi in the wooden box attached to the cot and that A2 opened the secret locker inside the iron safe and removed ail the valuables from it. PW13 also deposed that A2 having torn his lungi into pieces and tied herself and others with the said pieces. PW37 the Investigating Officer admits in his cross-examination that the version of PW13 as mentioned above was not given to the police in her earliest statement.
36. Thus, every circumstance which has a tendency to incriminate A2 as stated by PW6 and PW13 in their evidence is an improvement and at variance from their earlier statement to the police.
37. PW25, S. Veera Venkata Ramana in his evidence deposed as to the involvement of A2 that the culprits went into Manduva and brought A2 and when the culprits asked A2 to open the iron safe, A2 took out gold jewels from the iron safe and took them in a bag and the five culprits and A2 went out of their room and bolted from outside. But in his version to the police, as seen from Ex.D1 PW25 had stated that the keys were taken out from the steel vessels kept at the head side of the sunglass col and having given to Anjaneyulu he was asked to open small almirah and when opened the gold articles were put into a rexine bag.
38. Thus the version that it was A2 who took the keys on his own is falsified by Ex.D1 which shows that it was the culprits who gave the key to A2 and asked him to open the small almirah.
39. As far as PW26 M. Sitamaha-lakshmi, another eye witness is concerned, she completely exonerates A2 from any incriminating conduct on his part. According to her, A2 was inside the room and A2 raised alarm from inside his room to open the door and that PW13 opened the doors of A2's room and all of them went into their adjoining room and found the deceased lying with bleeding injuries in pool of blood in unconscious state. PW26 was however, permitted to be cross-examined on behalf of the prosecution.
40. Thus the evidence sought to be projected by the prosecution incriminating A2 is at substantial variance from the version given by the witnesses in their statement to the police and can scarcely be believed as the basis for convicting the accused as a participant in the offence of dacoily.
41. Considering the totality of the evidence, particularly the unreliability of the evidence as to identification of A3 to A7 by PWs.6, 13 and 25, the appellants in this case must be held to be entitled to benefit of doubt. It has lo be held that the prosecution has not succeeded in bringing home the offence against the appellants beyond reasonable doubt.
42. In the result, all the appeals are allowed. The conviction and sentence recorded by the trial Court are set aside. The fine amount, if paid, shall be refunded to the accused. The appellants shall be set at liberty forthwith if not required in any other case.