Andhra Pradesh High Court - Amravati
Adapala Sesha Reddy, Nellore Dt. Anr vs State Of A.P., Rep. By P.P., Hyd on 8 January, 2020
Author: J. Uma Devi
Bench: C.Praveen Kumar, J.Uma Devi
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
&
THE HON'BLE Ms JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.1192 of 2014
JUDGMENT:(per Hon'ble Ms Justice J. Uma Devi) The instant appeal arises out of the judgment of the VII Additional District & Sessions Judge, Gudur in Sessions Case No.165 of 2008, dated\ 24.10.2014, whereby the appellants were convicted and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.2,000/- each, in default to suffer simple imprisonment for a period of six months each for the offence under Section 302 IPC, believing the version of the prosecution that they caused the death of deceased Gundarla Srihari Reddy (hereinafter referred to as 'D1') and Smt.G.Syamala (hereinafter referred to as 'D2') by inflicting blows with Machu kathi (billhooks) they carried with them to the field where D1 and D2 were present to carry on agricultural operations.
2. The legality and validity of conviction of them for the offence under Section 302 IPC is assailed raising the following grounds:
(i) The appellants were convicted wrongly by the learned Additional District & Sessions Judge, Gudur though legally acceptable evidence was not placed on record to convict them for the offence under Section 302 IPC;
(ii) Though the testimony of PWs 1 to 3 and 6 appear to be untrustworthy, reliance was placed on their evidence instead of discarding the same;
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(iii) The learned Sessions Judge failed to see that immediately after the incident, PW 1, the brother-in-law of D1 went to the spot where D1 and D2 lying dead, but did not inform the police or to anybody else in the village about their death. Not informing about the death of the deceased to the police by him immediately after seeing the dead bodies of D1 and D2 either over phone or by approaching them personally itself gives a scope to doubt whether prosecution case is a tainted one;
(iv) PWs 1 to 3 and 6 remained silent without revealing or disclosing the death of D1 and D2 to anybody in the village and to the police and this would certainly give a scope to doubt their testimony;
(v) Appellant No.2 and Accused No.3 (against whom case is acquitted) were shown as accused as if they were present at the scene without any basis;
(vi) The inconsistencies found in the evidence of PWs 7, 11 and 13 as regards to recording of statement of Appellant No.1 and proceeding to the scene of offence themselves were enough to hold that the prosecution had not come with true version;
(vii) The learned Sessions Judge failed to see that Ex.P12-FIR was registered based on the statement made by A-1 while he was in police custody and such statement was wholly unreliable and hit by Section 25 of the Indian Evidence Act;
(viii) Ex.P13 was prepared in the police station in the presence of PW-11 and Sub Inspector of Police PW-13 while Appellant No.1 3 CPK,J & JUD,J Crl.A.1192 of 2014 was in police custody and such statement made by him whilst in police custody has no value in the eye of law;
(ix) It had not been seen by the learned trial Judge that PW 2 had not attributed any overt-acts to any of the accused except making omnibus allegations against them;
(x) The learned trial Judge failed to notice that seizure of bloodstained earth and controlled earth was highly improbable as there was continuous rain throughout the day on which the alleged offence took place;
(xi) Though statements of PWs 1 to 3 under Section 164 Cr.P.C were recorded by the Magistrate long time after the alleged incident, copies of such statements were not furnished to the accused and that the witnesses did not even state about this fact and these statements were deliberately suppressed;
(xii) Though medical evidence not tallied with the prosecution version, the accused wrongly convicted.
(xiii) No incriminating material was detected nor seized pursuant to the alleged statement made by A-1 to place reliance on it. The existence of dead bodies in the field of D2 was known to all;
(xiv) The statement on which signature of A-1 was taken forcibly was relied by the trial Judge despite bringing of such fact to his notice by Appellant No.1 whilst his examination under Section 313 Cr.P.C. The other appellant also pleaded that he was taken from his house by the police and he was forced to sign on papers.
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3. Before we deal with the grounds urged, let us have a look at the facts asserted by the prosecution.
Briefly stated the case of the prosecution is, that Accused Nos.1 to 3 and Gundarla Srihari Reddy (D1) and Smt.G.Syamala (D2) were the residents of Griddaluru village of Sydapuram Mandal. Syamala (D2) was the own sister's daughter of A-1 and she was brought up in his house. She was given in marriage to A-1. After marriage, both A-1 and D2 lived happily for a period 10 years. They were blessed with a female child. D2 inherited landed property of her parents to an extent of Ac.11.00 as she was only daughter to her parents. Out of which Ac.6.00 of land was sold by A-1 while she was living with him. As per the version of the prosecution, 4 years prior to the date of the alleged incident, D2-Syamla developed illicit intimacy with D1-Gundarla Srihari Reddy. Since then misunderstandings arose between her and A-1. Due to that reason, she was given divorce by A-1 and after divorce, she married D1-Srihari Reddy. Both of them stayed in Nellore for some time after their marriage. While living at Nellore, they were visiting Griddaluru frequently. The remaining bit of land, measuring Ac.5.00, was under cultivation of A-1. D2-Syamala filed a civil suit against A-1 and got injunction order in her favour. A-1 was insisting to Syamala to alienate the said land in favour of their daughter Shivani and the proposal so made by him was refused by her. Both the deceased Srihari Reddy and Syamala were cultivating the said land and A-1 was objecting for it.
4. While things stood thus, on 18.11.2006 at about 7.00 a.m, A-1 learnt through T.Raghava Reddy that the deceased Srihari Reddy and Shyamala were getting the land ploughed, immediately he sent one 5 CPK,J & JUD,J Crl.A.1192 of 2014 Mallaiah to the field instructing him to ask the deceased not to cultivate the land as it was in dispute. But the deceased without heeding his request continued tilling or ploughing the land. On that, Mallaiah returned to the house of A-1 and informed the same to him. On that A-1 became wild and left his house along with A-2 and A-3 armed with Machu Kathies (billhooks) and found Murali and Krishnaiah (PWs 2 and 6) cultivating the land in question. A-1 and A-2 requested the deceased to stop to cultivate the land, but they refused to do so. On that, the accused grew wild, and that A-1 at the instance of A-3, hacked Srihari Reddy (D1) with Machu Kathi. On that he fell to the ground. Then A-2 hacked Syamala (D2) with Machu Kathi on her chest. Meanwhile, Srihari Reddy (D1) died on the spot due to hemorrhage and shock due to injuries caused to vital organ (heart) and blood vessels of his body. On seeing this Syamala started running from the field, A-1 chased her, caught hold of her tuft of hair and hacked on her neck twice due to which she fell down and died. P.Ws.2 and 5 who witnessed the said incident ran into the village due to fear. On the same day i.e., on 18.11.2006 at about 12.00 noon A.1 went to Sydapuram Police Station with bloodstained Machu Kathi and confessed the crime before the Sub Inspector of police. PW 13-the Sub Inspector of Police before whom he made the confession, recorded his statement and registered a case against him based on his statement and sent the FIR and complaint copies to all the concerned officers, and that the Inspector of Police, Naidupet (LW 16), who was holding additional charge of Gudur Circle, investigated into the case, but he was not examined as he was expired.
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5. After A-1 confessed about the crime, the bloodstained machu kathi-MO.1 and bloodstained shirt-MO.2 were seized from him under the cover of Ex.P13 mahazarnama. The scene of offence was visited by the Inspector of Police on the same day at 2.30 pm and Ex.P4 panchanama was prepared by him incorporating its physical features. The incriminating material, viz., M.Os.4 to 8 were seized from over the dead bodies of D1 & D2 while conducting inquest over their dead bodies. After inquest their dead bodies were forwarded to the Government hospital for autopsy. On 19.11.2006, the doctors who conducted the autopsy over their dead bodies opined that they died due to shock and hemorrhage due to injuries to vital organs.
6. On 21.11.2006 A-2 and A-3 were arrested by the Inspector of Police and M.O.3-Machu Kathi said to be used by A-2 in the commission of offence was seized near Nallacheruvu Katta under the cover of Ex.P10 mahazarnama and they were produced before the Magistrate at Kota and their statements were recorded under Section 164 Cr.P.C. After investigation was concluded, PW 14 filed the charge sheet against the appellants and A.3 before the learned Magistrate of First Class, Guduru.
7. The Judicial Magistrate of the I Class, Gudur, before whom the charge sheet was filed by PW 14, took cognizance of the offence under Section 302 r/w.34 IPC and under Sections 114 and 115 r/w.34 IPC and numbered it as PRC No.32 of 2007 and committed it to the court of Sessions Division, as the offences alleged were to be tried exclusively by the court of Sessions Division. The Principal Sessions Judge, Nellore, to whom the case was committed, numbed it as S.C.No.165 of 2008 and 7 CPK,J & JUD,J Crl.A.1192 of 2014 made it over to the Court of VII Additional District & Sessions Judge, Guduru for disposal as per law.
8. The VII Additional District & Sessions Judge, Guduru, believing the testimony of witnesses examined by the prosecution and the material placed before him by the prosecution in support of its case, convicted the appellants for the offence under Section 302 IPC while acquitting A-3 of the charge under Section 302 r/w.Sec.34 IPC as it was found by him that the said offence was not proved against him. Challenging the conviction, the appellants preferred this appeal.
9. Assailing the impugned judgment, Sri T.Nagarjuna Reddy, learned counsel for the appellants, made his submissions reiterating the grounds of appeal, as mentioned supra. While arguing the case at length, he brought to the notice of this court that the trial Judge placed reliance of the statements said to be made by A-1 which according to him were taken from him forcibly by putting him under fear, as the dead bodies were found in land of D2 to whom he gave divorce; that on the so called confessional statements of A2 and A3, signatures of them were obtained by putting them under threat as they were closely related to A-1; since Ex.A11 statement, based on which the case was registered by the prosecution was a tainted document, and brought into existence to implicate him, and was hit by Section 25 of the Indian Evidence Act, the court below ought not to have placed reliance on such statement; that the trial Judge forgetting the fundamental principle that any statement made by the accused whilst in custody of police had no evidentiary value had taken such statement into consideration to record conviction, on this ground alone, the judgment of conviction passed by him could be set 8 CPK,J & JUD,J Crl.A.1192 of 2014 aside; that PW 2 did not attribute any overt-acts of the accused, and as a matter of fact he was the witness planted by the prosecution; he did not state anything about what he saw to any of the villagers; his presence at the scene of offence though was also doubtful, even then his testimony was relied upon by the trial Judge. The learned counsel further contended that though PW 3 claimed that he saw the incident, he did not inform to anybody about the death of D1 and D2. The evidence of PWs 2, 3 and 6 was wholly unreliable. Their evidence vis-à-vis the statement of A-1 which was confession said to be made by him was relied by the court below to record conviction against the appellants, though evidence of above mentioned witnesses and the confessional statements made by the accused had no legal sanctity.
10. Refuting the aforementioned contentions of the learned defence counsel, the learned Public Prosecutor appearing for the State contended that PWs 2 and 3, the eyewitnesses to the occurrence deposed that the accused attacked the deceased while they were ploughing the land in dispute with machu kathi (billhooks) carried with them. The said incident took place during day time. Placing reliance on their testimony and also on the statements made by the appellants before the police confessing that they killed the deceased which would clinchingly prove their involvement in the commission of offence, the learned Sessions Judge convicted them for the offence under Section 302 IPC and sentenced them, as stated supra. Simply because PWs 2 and 3 did not approach police immediately after the incident, the credibility of their testimony cannot be doubted.
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11. Having regard to the aforementioned submissions by the counsel of both parties, the point that arises for consideration is "whether the prosecution proved its case against the appellants beyond all reasonable doubt so as to sustain the conviction and sentence recorded against them by the trial court"
12. Before we start our discussion to answer the question mentioned above, we think it appropriate to refer the injuries noted by PWs 9 and 10 in Exs.P7 and P8 postmortem reports of Srihari Reddy (D1) and Smt.Syamala (D2).
13. Following were the injuries found by PW 7 on the dead body of Srihari Reddy (D1):
1) Cut lacerated injury present over anterior part of left side chest 6 x 1 x 4 c.ms present. Margins are regular and sharp.
2) Cut injury over topilitial fossa of right leg knee joint.
Edges are sharp size 10 x 4 cms. Muscles and tendons are exposed. Fracture bones of femur and fibula and tibia present.
3) Cut injury over topilital fossa of left leg knew joint. Edges
are sharp size 10 x 10 x 6 cms. Fracture both bones
present. Muscles and condones exposed and attached left leg with skin to left thigh.
4) Lacerated injury size 4 x 1 cm over upper left leg with fracture tibial bone present.
5) Injury size 4 x 1 cm over anterior part of left leg knee joint.
PW 7 opined that the deceased Srihari Reddy died due to shock and hemorrhage due to injuries to vital organ (heart) and major vessels of his body.
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14. Following were the injuries found by PW 10 on the dead body of Smt.G.Syamala (D2):
1) An oblique cut lacerated injury measuring 15 x 5 x 15 cms size over middle of the right side of the neck with muscles, vessels throat, cervical spine or cut with only skin attachment on left side;
2) Another cut lacerated injury measuring 10 x 3 x 10 cms size just below the right side of the chin;
3) Another lacerated injury measuring 2 x 1 x 1 cms size over middle of left little finger;
4) A cut lacerated injury measuring 3 x 2 x 2 cms size over right ear;
PW 10 opined that the deceased Smt.G.Syamala died due to shock and hemorrhage.
15. The nature of injuries mentioned in Exs.P7 and P8 postmortem reports leave us with no doubt that they are murdered or killed.
16. The only question is "whether these injuries are caused by the appellants; whether the incident took place in the manner spoken to by the prosecution witnesses".
17. The prosecution in the instant case though cited 19 witnesses examined 14 witnesses and marked Exs.P1 to P17 and MOs.1 to 8. No oral or documentary evidence was adduced on behalf of the accused.
18. The prosecution in the instant case claims that there are direct eyewitnesses to the incident. The entire prosecution case hinges on the evidence of PWs 2, 3 and 6, who are the direct eyewitnesses to the incident. The prosecution case also rests in the so called statements said to be made by A-1, based on which the case is registered by the police. Apart from the aforementioned material, the prosecution places reliance on the confessional statements made by A-2 and A-3.
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19. As the main plank of the prosecution case pivots on the evidence of PWs 2 and 3, the direct witnesses to the occurrence, the credibility of whose witnesses is not trustworthy according to the defence, the same needs to be tested. Since they are the main witnesses for the prosecution to contend that it has proved its case against the accused successfully, we feel it necessary to have a look at their evidence.
20. PW 2-A.Murali, resident of Griddaluru village of Sydapuram Mandal is examined by the prosecution to speak about the manner in which D1 and D2 are assaulted. He is engaged as a coolie to attend the work of agricultural operations in the field of D2 as per the prosecution version. Along with him M.Kistaiah-PW 6 is also engaged as coolie on that particular day to work in the field of D2. Apart from hi some other persons of their village are also engaged as coolies to work in the field of D2. He is the son of PW 3-A.Eswaraiah, who is also the eyewitness for the incident as per the prosecution case. It is testified by PW 2 that on the date of the incident at about 6 of 6.30 a.m he went to the field of D2 to attend agricultural operations. After half an hour he went to the field of D2, Mallaiah-PW 4 came there and talked with D1 and D2 and went away. Half an hour after Mallaiah left the field, all the accused came there with knives and hacked D1 and D2; On seeing the same D2 tried to run away from the place, then the accused hacked her. On seeing the said incident, out of fear, he ran to his house.
21. The above evidence given by PW 2 stating that he saw the accused attacking D1 and D2 is the crucial for prosecution to plead that it has proved that the accused are the culprits and they are the persons responsible for the death of D1 and D2. As per version of the 12 CPK,J & JUD,J Crl.A.1192 of 2014 prosecution, the culpability of the accused in the commission of offence is proved by examining PW 2.
22. The evidence given by PW 2 as regards to witnessing the commission of offence is attacked and questioned by the appellants. As per their version he was not a truthful witness, no reliance be placed on his testimony. The credibility of the evidence of PW 2 which is challenged by the appellants will be discussed later.
23. The next other witness for the prosecution to claim that it has proved the complicity of the accused is PW 3-A.Eswaraiah, the father of PW 2, who according to the prosecution is also another direct eyewitness for the incident in which D1 and D2 are attacked. PW 3 testifies that he is a resident of Griddaluru village of Sydapuram Mandal and he lives by doing coolie work. He knows A1 to A3 and D1 and D2, LW-5 R.Venkataiah, PW 4-M.Mallaiah and PW 6-M.Kistaiah. As per his version, on the date of the incident at about 8 a.m he came to know that there was galata in the field of D2, and that he had seen the said galata; He claims that he saw A1 and A2 chasing D1 and that A1 hacked D1 on his legs, and after D1 fell to the ground A3 pushed him into the land of D2 and that A2 hacked D1 on left side of his body with Machu Kathi; While D2 was running away, on seeing this, A1 ran after her and caught hold of her tuft of hair and hacked her with Machu Kathi, due to which D1 and D2 died on the spot; On seeing the aforesaid incident, due to fear, himself and Venkataiah (who was not examined) ran into the village.
24. As per the version of another witness PW 6-Kistaiah, who is also said to be an eyewitness for the incident on the date of incident, he along with PW 2 went to the field of D2 to attend agricultural works.
13 CPK,J & JUD,J Crl.A.1192 of 2014 After some time they went to the field of D2, PW 4 came there and obstructed from ploughing the land of D2. Thereafter, at about 6.30 a.m the appellants along with A3 came to the field of D2 raising cries with loud voice; on that, due to fear, himself and PW 2 ran to the village expecting that something would take place/happen.
25. We have closely and thoroughly examined the testimony of PWs 2 and 3 to ascertain the truthfulness in the statements made by them before the court. PWs 2 and 3 are related to each other. PW 3 is the father of PW 2. The prosecution version is that PW 2 was also engaged as cooolie to work in the field of Smt Syamala (D2) along with M.Kistaiah. PW 2"s version was that at about 6 or 6.30 a.m he went to the field of D2 to attend to agricultural operations. Half an hour after he went to the field of D2 to attend coolie work, PW 4 M.Mallaiah came there and talked to the deceased and went away. Half an hour after Mallaiah left the field, all the three accused came there armed with knives and hacked D1 and D2. On seeing the same, he ran into the village due to fear. Subsequently he came to know that both the deceased died. PW 2 though claims to be an eyewitness to the attack said to be made on D1 and D2 by the accused, he does not say which accused beat on which part of D1; similarly, by whom D2 is hacked, on which part of her body injuries are inflicted by which accused.
26. PW 3, the father of PW 2, who also claims to be an eyewitness to the incident testifies that he came to know that there was a galata in the field of D2 around 8 a.m and that he saw the said galata. As per his version, A1 and A2 armed with knives chased D1 and that A1 hacked on the legs of D1 and after he fell to the ground A3 pushed D1 into the field 14 CPK,J & JUD,J Crl.A.1192 of 2014 and then A2 hacked on the left side of his body with Machu Kathi; while D2 was running away on seeing the attack on D1, A1 went after her and caught hold of her tuft of hair, hacked her with Machu Kathi, due to which, both D1 and D2 died on the spot.
27. PW 3 states that Venkataiah was with him at the time while the incident was taking place. The prosecution could have examined him at least to corroborate testimony of PW 3, but did not do so.
28. Kistaiah PW 6 who was engaged as coolie to work in the field of D2 along with PW 2 testified that on the date of the incident at 6.00 a.m he along with Murali (PW 2) went to the field of D2 and some time after they went there, PW 4 came there and obstructed him from ploughing the land and went away. At about 6.30 a.m A1 to A3 came to the field of D2 raising cries with loud voice, on that due to fear of them, himself and PW.2 went into the village expecting that something would happen.
29. The aforementioned evidence of PW 6 itself would falsify presence of PW 2 in the field of D2 at the time of the alleged incident of assault on D1 and D2. His evidence would rule out witnessing of the assault on D1 and D2 by PW 2. Thus, it was clear from the testimony of PW 6 that PW.2 was not there at the scene of offence at the time of the alleged incident.
30. It was felt noteworthy to mention here that PW 6 was examined by the prosecution to corroborate the testimony of PW 2. His version was quite different from the version given by PW 2, and it appeared from their testimony that they did not see the occurrence. On having a close look at the evidence of PWs 2 and 6, it can be said without any hesitation that they have not seen the incident, as has been pleaded 15 CPK,J & JUD,J Crl.A.1192 of 2014 by the prosecution. As the presence of PW 2 at the time of scene of offence at the time of the alleged incident is proved to be a false one by the evidence of PW 6, the only direct evidence left to the prosecution to plead that it has proved its case against the appellants is the evidence of PW 3.
31. The contention of the accused is that PWs 2 and 3 are chosen as witnesses by the prosecution and that they are planted witnesses. They have given evidence supporting the prosecution case, out of their interestedness in prosecution case, they are the strong supporters of Kammam Venkataramana Reddy, who is leader of the party opposed to the appellants. The trial court, having thought that no acceptable evidence is placed on record by the prosecution establishing the culpability of A3, upon close scrutiny of the evidence of PWs 2 and 3, placed reliance on their testimony, and wrongly convicted the appellants instead of holding that no credibility is there in their testimony.
32. After it has been noticed that the evidence of PW 2 is proved to be false, and his testimony as regard to his witnessing the alleged incident is vanished by the testimony of PW 6, the only direct evidence remained for prosecution is the testimony of PW 3, who appears to have stated that the incident took place at 8.00 a.m, by which time another person by name Venkataiah was with him. Though PWs 2 and 3 claim that they saw the incident, in which the deceased were attacked, and that they did not disclose about the assault on D1 and D2 to anybody in the village where they rushed out of fear, remained silent till they were examined by the police. No attempt whatsoever was made by them to intercept the accused while they were assaulting D1 and D2 and they did not even 16 CPK,J & JUD,J Crl.A.1192 of 2014 made any endeavour to divert the attention of anybody working in the field or the persons attending agricultural operations in the surrounding fields by raising hue and cry.
33. The men engaged to work in the field of D1 and D2 belonged to Griddaluru village, to which village PW 3 belonged to, but no single person engaged to work in the field of D2 was examined except PWs 2 and 3, who according to the accused, had the interest in the prosecution case. The contention of the accused was that PWs 1, 2 and the other witnesses cited in the charge sheet belonged to the group of Kammam Venkataramana Reddy, at whose instance, the case was foisted against them. It was admitted by PW 6 that the wife of Bhaskar, by name Parvathi, who contested for the post of Sarpanch with the influence of Kammam Venkataramana Reddy was related to PWs 2 and 3 and that one Mangalapuru Pullaiah, who contested on behalf of Kammam Venkataramana Reddy was related to PW 6 and all of them were the followers of Kammam Venkataramana Reddy. It was consistently contended by the accused that at the behest of Kammam Venkataramana Reddy they were falsely implicated in this case. PW 3 who was the strong supporter or follower of Kammam Venkataramana Reddy was planted as a witness. PW 2, who was also follower of Kammam Venkataramana Reddy was cited as a witness to the prosecution and his evidence as regards to witnessing of the incident was proved to be false by the evidence of PW 6.
34. As per the version of PW 3 the incident was witnessed by him and that the distance between the place of offence and the land where he was present at the relevant point of time was 50 yards, but in Ex.P15 rough sketch of scene of offence or in the panchanama prepared at the 17 CPK,J & JUD,J Crl.A.1192 of 2014 scene of offence, the field that was being cultivated by PW 3 was not showed anywhere. The interestedness of PW 3 in the prosecution case was proved by the accused by eliciting through the evidence of PW 6 that he was the follower of Kammam Venkataramana Reddy who was in anemically disposed to the accused politically.
35. Though the conviction could sustain based on the solitary testimony of an eyewitness, the infirmities which we pointed out above in so far as non-disclosure of the incident said to be seen by PW 3 to anybody else in the village till he was examined, and the material which the prosecution failed to place on record as regard to cultivating of land by PW 3 on lease and location of such land nearer to the scene of offence which could have probabilised witnessing of the incident by him as was asserted by it, made us not to place implicit reliance on his testimony which appeared to be untrustworthy and unreliable.
36. The other reason for us to disbelieve the testimony of PWs 2 and 3 was that they did not disclose or reveal the incident said to be seen by them to anybody in the village; the distance between the village and the place where the incident took place was hardly half a kilometer; when deaths of two persons takes place, material evidence is there to say that they are murdered, the information about it spreads in the village within minutes. In this particular case, no villager came forward to give a report about the death of D1 and D2 in the police station. PW 1, a close relative of D1, though had the information about the death of D1 and D2 in the morning itself, he remained silent and that also did not inform about their deaths to any other relatives of the deceased till he was examined by the police. PW 3 remained silent without revealing the deaths of D1 and D2 to 18 CPK,J & JUD,J Crl.A.1192 of 2014 anybody in the village till he was examined. The unusual conduct of PWs.2 and 3 remaining silent without informing the deaths of D1 and D2 in the village, at least, to any of the relatives of D1 and D2, can be a reasonable ground to doubt his testimony.
37. In view of the discussion held above, it can be safely concluded that the evidence of PWs 2 and 3 does not inspire confidence of the court and their evidence appears to be untrustworthy of credit. The trial court, without looking into these aspects of which create suspicion on their testimony, has taken their testimony into consideration instead of holding that their evidence is not impressive so as to taken into account to believe the prosecution story.
38. The prosecution in the instant case places reliance on the evidence of PW 1, the brother-in-law of D1. This witness is not an eyewitness to the occurrence, but as per his version, on the alleged date of incident in the morning itself he came to know that D1 and D2 were hacked to death in the fields of D2, and immediately he rushed to the field of D2 and saw their dead bodies in the pool of blood with bleeding injuries. Though he had the information about the death of D1 and D2 in the morning of 18.11.2006 itself, he did not give any report to the police immediately after seeing the dead bodies of D1 and D2 in the fields of D2. No attempt whatsoever was made by him at least to inform the police about the deaths of D1 and D2 over phone; Though he was having a Tractor and Sumo which he were using for his own purpose, he did not go to police station to give a report in the police station. His wife was the sister of D1. Neither she, nor PW 1 gave any report to the police. They did not pass on information to the police at least over phone though they 19 CPK,J & JUD,J Crl.A.1192 of 2014 were having knowledge about the death of D1 and D2 in the morning itself. PW 1 also did not give information to any of the relatives of D1 and D2 though the father of D1 was available in the village. The brother of D2 was also a resident of Griddaluru village and he too was not told or informed about the death of D2. He remained silent till he was examined by the police at 3 p.m without giving information about the deaths of D1 and D2 to their close relatives.
39. PW 1 was not remotely or distantly related to D1. He was the own brother-in-law of D1 having married his sister. LW 1, whose evidence was given up, was also closely related to D1. Neither of these witnesses chose to give any report in the police station about the death of D1 and D2. Their remaining in the village till arrival of the police till 3 p.m appeared to be unusual.
40. Upon having a close scrutiny of the evidence of the aforementioned witnesses, we have our own doubts on their testimony, and they are mentioned in detail in the preceding paragraphs.
41. Keeping in view the several infirmities in the evidence of PWs 2, 3 and PW 1, we do not consider it safe to place implicit reliance on their testimony to uphold the conviction recorded against the appellants by the court below.
42. The prosecution in the instant case, apart from the oral evidence of PW 1 and PWs 2 and 3, the eyewitnesses to the occurrence, seems to have placed reliance on Ex.P11 confessional statement said to be made by A1 based on which case is registered.
43. This Ex.P11 statement as per the version of appellant No.1 is not made by him, and this fact has been brought to the notice of the trial 20 CPK,J & JUD,J Crl.A.1192 of 2014 Judge during the time of his examination under Section 313 Cr.P.C and it has been told by him to the trial Judge that he was taken by the police from his house and he was compelled to sign on a paper regarding deaths of D1 and D2 though he was no way concerned with their deaths.
44. Ex.P11 statement said to be made by appellant No.1-Adapala Sesha Reddy is as under:
"I am native of Griddaluru. I married my sister's daughter namely Syamala in the year 1992. We were blessed with one female child. We lived together for about 10 years. Our daughter is aged seven years. About four years ago, my wife went away having illicit connection with Gundala Srihari Reddy and later she married him. Subsequently I filed a case in order to give divorce to her. Some time later, divorce documents were given to both of us by the Junior Civil Judge, Gudur in the month of January, 2005. Since then, Syamala, Srihari Reddy and my daughter have been residing together. SrihariReddy and Syamala were blessed with one son also. Later, I married Roopa daughter ofAadala Dasaradharami Reddy (late) Nellore. The land to the extent of Ac.11.00 cts given by the parents of Syamala by virtue of mediation through elders, was sold away while were living together. I pressurized Syamala to get settled the remaining extent of Ac.5.00 cts in the name of Sivani who was born through me, as Syamala's character was not well. For that she did not agree and she moved the court. As she failed to heed my word, I have been cultivating the land in her name too and did not allow her into the land. Our village elders effected mediations so many times in respect of our disputes. Police cases were also registered.
Today i.e. 18.11.06, at about 7.45 am in the morning, while I was in the field at outskirts, having come to know that Srihari Reddy and 21 CPK,J & JUD,J Crl.A.1192 of 2014 Syamala had been ploughing the land, I sent MNoggam Mallaiah conveying the information to them that the said land has been in court proceedings and not to plough it. He returned and informed me that they did not heed his word and have been ploughing the land. Then, I, having taken a billhook lying in the land, had been to the land where Srijhari Reddy and Syamala were present. There, they were getting the land ploughed through Golla Eswaraiah. Then I question as to why the land was being ploughed having come to the land though she would follow Srihari Reddy married him. Then Srihari Reddy and Syamala having altercated with me, firstly I hacked with the billhook in my hand on two legs and two hands forcibly. When Syamala came to his rescue, she was pushed down and hacked on her shoulder and on hacking on her neck, she died. Later, Srihari also died. Having confirmed that both of them died, I came to the police station, Sydapuram and informed about the murders to the S.I. I also showed the billhook, saying that it was the knife with which I hacked them and I surrendered before the police handed over the said billhook to the police. Then the S.I reduced my narration into writing and upon read over the contents to me, I having found them correct, I subscribed my finger print and signature over it."
45. The First Information Report is said to be registered by the police based on the statement given by the appellant No.1, which amounts to a confessional statement and the proof of it is prohibited by Sec.25 of the Indian Evidence Act. No part of confessional statement which is inculpatory need to be proved or received in evidence, except to the extent which is permitted by Sec.27 of the Indian Evidence Act.
46. In the instant case, recovery of M.Os.1 and 2 has not taken place pursuant to the disclosure statement made by appellant No.1.
22 CPK,J & JUD,J Crl.A.1192 of 2014
47. We do not intend to strain ourselves much on the position of law as regard to admissibility of the First Information Report given by the appellant No.1 to the police which is a confessional statement; The principle of law enunciated by the Apex Court in this regard in Aghnoo Nagesia v. State of Bihar1 is as under:
"If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25 of the Indian Evidence Act. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of S.25 is lifted by S.27."
48. Following the proposition of law laid down in the aforementioned case, the Apex Court in Bheru Singh v. State of Rajasthan2 has held at paras-17 and 19 as under:
"17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 Cr.P.C is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first 1 AIR 1966 SC 119 2 (1994) 2 SCC 467 23 CPK,J & JUD,J Crl.A.1192 of 2014 information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act."
19. .From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of 24 CPK,J & JUD,J Crl.A.1192 of 2014 the statement amounts to confession of committing the crime and is not admissible in evidence."
The afore-cited decisions have more intrusive and persuasive value in the instant case.
49. From the principle of law laid down in Bheru Singh v. State of Rajasthan (2 supra) it is clear that the motive part and relationship of the appellant No.1 with the deceased which are not confessional in nature are not hit by the provisions of Sec.25 of the Indian Evidence Act and can be used against the appellants as evidence under Section 8 of the Indian Evidence Act. The principle as to how a confessional statement of an accused which is inculpatory in nature to be dealt, has been expounded in umpteen number of cases and few of them are referred above by us.
50. In the instant case, there was relationship between the 1st appellant and Smt.Syamala even prior to his marriage with her. She was the daughter of his own sister. She was brought up in his house as her parents died during her childhood. Few years after marriage compatibility between her and A1 was lost and the relationship between the couple became strained after she developed extra marital relationship with D1 and this was the cause for breakage out of their marriage. The estrange relationship between them was the main cause to get their marriage dissolved by obtaining divorce. A1 married another girl by name Roopa and ever since the date of divorce D1 and D2 were residing together along with the daughter of A1 Shivani, and that D2 herself was taking care of Shivani.
51. From the above, it was quite clear that after marriage between A1 and D2 came to an end both of them were leading their lives happily 25 CPK,J & JUD,J Crl.A.1192 of 2014 with their respective families. If such was the situation, where was the need for A1 to compel D1 to keep the residue land in the name of Shivani?
52. Refusal of the request made by A1 on D2 to keep the land in the name of Shivani was the cause for him to develop animosity towards her and it was the reason to kill her and D1 with whom she was living. This was motive pleaded by the prosecution.
53. It was also the case of the prosecution that A1 was cultivating the land of D2, as D1 and D2 tried to cultivate the land, he along with A2 and A3 who were related to him as junior paternal uncle and son of another junior paternal uncle of him went to the field where D1 and D2 were present and were cultivating it against to his will and killed them.
54. It is pertinent to mention here that in Ex.P4, the land which according to the prosecution was being cultivated on the alleged date of incident of D1 and D2 was showed as land of D2.
55. It is also significant to mention here that Shivani whom D2 said to have neglected, and due to which there was demand on her from A1 to keep the land in the name of Shivani was living with D1 and D2. The prosecution though asserted that civil and criminal cases were filed as D2 was not allowed to cultivate the land and was obstructed, it did not file any scrap of paper in this regard, and it did not even state the case details etc., thus the motive which the prosecution pleaded had not been proved.
56. In so far as the confessional statement said to be made by A2 & A3, which led the police to recover M.O.3, it was prepared on 21.11.2006. The said confessional statement, according to appellant No.2, was a tainted one and signature on it was obtained by putting him 26 CPK,J & JUD,J Crl.A.1192 of 2014 under threat. We perused the said statement. PW 14, the successor of Guduru Circle, deposed that on 20.11.2006 on getting reliable information about A2 and A3, his predecessor along with PW 11 and PW 8 went near Mitta Atmakur bus stand and arrested A2 and A3 and recorded their confessional statements and prepared a mediators report Ex.P16; based on their confessional statement he proceeded to Nalla Cheruvu tank of Griddaluru village and there M.O.3 machu kathi was seized under the cover of Ex.P10-mahazarnama. But when we perused Ex.P10 seizure panchanama, it was prepared on 21.11.2006 at 9.30 a.m by the Inspector of Police, Naidupet, the incharge Inspector of Police, Guduru (who was not examined as he expired). Ex.P16 confessional statement of A2 and A3 was prepared on 21.11.2006 at 7.30 a.m. From the above, it was manifestly clear that they were taken to custody prior to their arrest. This creates a doubt in our mind whether the so called statement is reliable? Is it created?
57. The case of appellant No.1 and also appellant No.2 from the beginning that the so called confessional statements made by them are tainted and their signatures are obtained on them after they are taken from their respective houses by the police.
58. We have our own doubt on the testimony of PW 13, the investigating officer. As per his version, till 3 p.m he did not go to the village where the scene of offence situated appeared to be untrue. It is manifestly clear from the testimony of PW.14 that his predecessor had been to Sydapuram police station at 2.30 p.m, from there they went to the spot where the offence took place and collected the first information report and by that time, ASI of police and other police were at the scene 27 CPK,J & JUD,J Crl.A.1192 of 2014 of offence and that PW 13 brought a photographer with him to get the scene of offence photographed. The rough sketch of the scene of offence was prepared at 2.30 p.m as found from the time mentioned therein. Thus, from the above, it can be said that the Sub Inspector of Police and Inspector of Police and the other police officials were in the village prior to 2.30 p.m and investigation of the case started much prior to 2.30 p.m, but the Sub Inspector of Police-PW.13 said that till 3 p.m he was in the police station and after the incharge Inspector of police, Guduru came to Sydapuram police station, he went to the village along with him and till such time there was no information from anybody from the village of Griddaluru about the death of D1 and D2.
59. The Investigating Officers, who are assigned the duty of ascertaining the truth by enquiring into the case without any bias, curiously seems to have showed enthusiasm towards the prosecution. It is not stated by the investigating officers with who's assistance they have reached the scene of offence. The availability of the police officers at the scene even before the Inspector of Police went to the scene of offence, and the Sub Inspector of police bringing the photographer with him before 2.30 p.m itself would prove, whatever evidence given by PW 13 that he did not proceed with the investigation after recording Exs.P11 and P13 and waited for arrival of incharge Inspector of Police as the alleged offence was grave in nature etc., had no credibility.
60. The instant case is a glaring example of intentional concealment of relevant material, viz., Sec.164 Cr.P.C statements of PWs.2, 3 and other witnesses and the accused said to be recorded by the Magistrate, are not produced and they are purposely withheld. Failure of 28 CPK,J & JUD,J Crl.A.1192 of 2014 the prosecution to act fairly and place all relevant material before the court to enable to take just and fair decision has caused serious prejudice to the appellants.
61. We feel it appropriate to quote the observations made by the Apex Court in this regard in Dayal Singh and others v. State of Uttaranchal3 as under:
"22. Even the present case is a glaring example of irresponsible investigation. It, in fact, smacks of intentional mischief to misdirect the investigation as well as to withhold material evidence from the court. It cannot be considered a case of bona fide or unintentional omission or commission."
62. The prosecution in the instant case has made valiant endeavour to impress upon the court by contending that it has proved the complicity of the accused by producing M.Os.1 to 3 where bloodstains of human origin are detected. In the instant case, we are not inclined to place reliance on the recovery, in view of observations which made above doubting the motive pleaded by the accused and also the evidence of so called eyewitnesses PWs 2, 3 and 6, through whose evidence the prosecution has made the endeavour to concoct the case, we are not inclined to rely upon the so called recovery, which has no consequence at all, and it is a futile exercise in the light of our view expressed doubting the so called confessional statements of the accused.
63. The aforementioned view of us is fortified by judgment of the Apex Court in Balwan Singh v. State of Chhattisgarh4 Where it is held as under:
3
(2012) 8 SCC 263 29 CPK,J & JUD,J Crl.A.1192 of 2014 "10. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in the case of R.Shaji v. State of Kerala (AIR 2013 SC 651) Gura Singh v. State if Rajasthan (AIR 2001 SC 330), Jagroop Singh v. State of Punjab (AIR 2012 SC 2600) and State of Rajasthan v. Teja Ram and others (AIR 1999 SC 1776) relating to the bloodstains is applied in each and every case. Non-confirmation of blood group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of the prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of the crime."
64. After analyzing the testimony of the witnesses examined by the prosecution and the material placed on record by it, we are of the view that the genesis of the case has not been proved and that the evidence given by the so called eyewitnesses appears to be doubtful so also the recovery of the incriminating objects. Therefore, we are of the considered opinion that the trial court is not justified in convicting the appellants under Section 302 IPC.
65. In view of the above, we have no hesitation to hold that the prosecution could not prove the guilt of the appellants/accused Nos.1 & 2 for the charges leveled against them beyond all reasonable doubt and therefore, the appellants/accused Nos.1 and 2 are entitled to an acquittal.
66. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/A.1 and A.2 in the judgment, dated 24.10.2014, in S.C.No.165 of 2008, on the file of Court of Session, Sessions Division, Gudur, are set aside. Consequently, the 4 AIR 2019 SC 3714 30 CPK,J & JUD,J Crl.A.1192 of 2014 appellants/A.1 and A.2 are acquitted of the charges framed against them. They shall be released forthwith from the custody, if they are not otherwise required in any other case or crime. The fine amount, if any, paid by them shall be refunded to them.
____________________ C.PRAVEEN KUMAR, J ___________________ J.UMA DEVI, J Date: 08.01.2020 Dsr