Andhra Pradesh High Court - Amravati
Krovvidi B.Sekhar A1 Krishna Dt 2 Otrs., vs State Of Ap., Rep. Pp. Hyd., on 23 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, Battu Devanand
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE BATTU DEVANAND
Criminal Appeal No.835 of 2014
JUDGMENT :(per the Hon'ble Sri Justice C.Praveen Kumar)
1. A1 to A3 are the appellants herein. Originally, A1 to A5 were tried on the following charges :
2. (i) A1 and A3 - under Section 302 I.P.C.; (ii) A2 - under Section 302 read with Section 114 I.P.C.; (iii) A1 and A3 - under Section 397 I.P.C.; (iv) A1 to A3 - under Section 365 I.P.C. (v) A1 to A5 - under Section 120(B) I.P.C.; (vi) A2 and A3 - under Section 326 I.P.C.; (vii) A1 to A3 - under Section 326 I.P.C.; (ix) A1 - under Section 371 I.P.C.
3. By its judgment dated 13.6.2014 in S.C. No.354 of 2011 the learned Sessions Judge while acquitting A4 and A5, convicted A2 for the offence punishable under Section 302 I.P.C. and sentenced him to imprisonment for life and imposed fine of Rs.100/-, in default, to suffer simple imprisonment for a period of three months; convicted A1 and A3 for the offence punishable under Section 302 read with section 34 I.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/- each, in default, to suffer simple imprisonment for a period of three months each; convicted A1 to A3 under Section 392 I.P.C. and sentenced to suffer rigorous imprisonment for a period of 10 years and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for a period of three months each; convicted A1 to A3 for the offence punishable under Section 365 I.P.C. and sentenced to suffer 2 simple imprisonment for a period of 7 years and to pay a fine of Rs.100/- each, in default, to suffer simple imprisonment for a period of three months each; convicted A3 for the offence punishable under Section 324 I.P.C. and sentenced to suffer simple imprisonment for a period of three years; convicted A1 to A3 for the offence punishable under Section 326 I.P.C. and sentenced to suffer simple imprisonment for a period of 10 years and imposed fine of Rs.100/- each, in default, to suffer simple imprisonment for a period of three months each. All the substantive sentences were directed to run concurrently.
4. The substance of the charge against the accused is that on 4th June, 2010 at about 9.30 PM, the accused caused the death of one Shanmugam Venu Gopal, diverted oil tanker towards Addanki side, apart from committing a theft of cell phone of one Shaik Subhani.
5. The facts, as seen from the evidence available on record, are as under :
P.W.1 was the cleaner of a diesel tanker bearing No.AP 16 TT 5259, while the deceased was the driver of the said vehicle. P.W.5 is the elder brother of the deceased. On 4.6.2010 at about 5.00 or 5.30 P.M. they loaded the diesel at Kondapalli and started proceeding towards Naidupet. After traveling a distance, three persons requested the driver to board the lorry till Nellore.
Deceased allowed the said three persons to get into the tanker. When they reached Chilakaluripet, three more persons requested the deceased to travel in the said lorry till Nellore, but, however, the accused Nos.1 to 3 prevailed over the deceased and saw that 3 those three persons are not allowed to travel along with them. When the tanker reached Allavalapadu cross roads, A1 to A3 asked the deceased to stop the tanker as they need to attend calls of nature. Out of the three accused, two went towards western side of the road. About 10 minutes later, both of them came back and got into the vehicle. The deceased started the tanker. After traveling a little distance, A1 to A3 switched off the lights in the cabin. A1 caught hold of the deceased, while A2 beat him with iron rod on the head. A2 also stabbed the deceased with a knife. At that point of time, A3 caught P.W.1 and beat him with a rod on his head. P.W.1 jumped out of the tanker; during which process, he came into contact with the rod and sustained injury on the leg. P.W.1 ran to a distance and then came back to the said place with the help of lift given by motorcyclist, who was coming in the opposite direction. But, neither the tanker, nor the accused were present there. When enquired with the persons gathered there, they informed them that the injured driver was taken in that oil tanker by accused Nos.1 to 3 to the Government Hospital. P.W.1, who was also having injuries, was also taken to Hospital. P.W.13, the Head Constable of Addanki Police, received intimation from Addanki Hospital and accordingly, he proceeded to the hospital and recorded the statement of P.W.1. Ex.P1 is such statement and Ex.P16 is the Hospital Intimation.
6. On receipt of Ex.P1, P.W.14 registered a case in crime No.28 of 2010. On receipt of F.I.R., P.W.15 left Inkollu and reached Medarametla Police Station, from there, he went to Community Health Centre, at Addanki and recorded statement of P.W.1. He then visited to the scene of offence, recorded the statement of 4 P.W.2 and others in the presence of P.W.7 and another. He examined scene of offence and seized blood samples from the blood found at the scene. He got prepared a rough sketch of the scene which is placed on record as Ex.P19 and the scene of observation report as Ex.P7. He then proceeded to Santhamaguluru cross roads, where he noticed a stationed oil tanker. He examined and recorded statement of P.W.3 in the presence of P.W.8 and others. He examined the cabin of the oil tanker and found white thread with blood stains - M.O.3, blood stained green colour towel with red stripes and the other material objects. Ex.P6 is the panchanama prepared to that effect, while M.Os.4 to 7 are the material objects. While he was at Santhamaguluru cross roads, he received information about the dead body of the deceased lying near the fields of Kongapadu Village. In the presence of P.W.9, he held inquest over the dead body of the deceased. Ex.P8 is the inquest report. At the scene, he seized M.Os.8 and 9 under Ex.P7. Thereafter, the body was sent for postmortem examination. P.W.10 - Civil Assistant Surgeon, Government Health Centre, Addanki, conducted autopsy over the dead body and issued Ex.P10 postmortem certificate. According to him, the cause of death was due to injuries on the body. P.W.11 - III Additional Junior Civil Judge, Ongole, conducted Test Identification Parade, wherein P.W.1 is said to have identified the accused. Ex.P13 is the test identification parade. After collecting all the necessary documents, he filed a charge-sheet, which was taken on file as P.R.C.No.19 of 2011 on the file of the Additional Judicial First Class Magistrate, Addanki. On appearance of the accused, copies of all the documents, as required under Section 207 Cr.P.C., were furnished 5 and later on it was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, charges as referred to above came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P24, besides marking of M.Os.1 to 24. After completing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but did not adduce any defence evidence.
7. Relying upon the evidence on record, the trial court convicted the accused as referred to earlier. Challenging the said conviction and sentence, the appeal is filed through legal aid.
8. Sri G.Vijaya Saradhi, learned Legal Aid Counsel, mainly submits that there is any amount of doubt with regard to the presence of P.W.1 in the lorry at the time of the incident. He submits that if really he was working as Cleaner, he would not have failed to mention the name of the deceased in the F.I.R. On the other hand, disclosing that he was not aware of the name of the deceased, supports the plea that he was a stranger to the incident. He further contends that the Wound Certificate of P.W.1 has to be viewed with suspicion, having regard to the time mentioned therein. In any event, he would plead that, if really he was injured, definitely he would have not gone leaving the deceased alone, he would have raised cries and attracted the 6 attention of shop keepers present nearby. Having regard to the above, it is pleaded that presence of P.W.1 is doubtful.
9. On the other hand, learned Public Prosecutor would contend that the evidence on record, more particularly evidence of P.W.1, coupled with the evidence of other witnesses, establish the involvement of the accused in the crime.
10. The point that arises for consideration is, whether the prosecution was able to establish the involvement of the accused in the commission of the offence?
11. P.W.1 was examined as an injured eyewitness to the accident. His evidence shows that on the date of incident he along with the deceased got loaded diesel from Kondapalli and started proceeding to Naidupet. After traveling a distance of about 1 K.M., A1 to A3 sought permission to travel in the tanker to Nellore. The deceased, who was a driver, allowed them to get into the tanker. When they reached Chilakaluripeta, three more persons requested to travel in the said lorry, but the driver objected to the same at the instance of A1 to A3. Thereafter, at about 9 o'clock, the accused wanted to attend calls of nature and as such, the vehicle was stopped. Two of the three accused went to attend calls of nature and came back after 10 minutes. When the vehicle was moving, the accused switched off the lights in the cabin and then attacked the deceased and P.W.1. A1 caught hold of the deceased, who was driving the said tanker, while A2 beat the deceased with iron rod on the head and thereafter again stabbed him with the knife. A3 is said to have caught P.W.1, but he released himself out and jumped out of the tanker due to fear; as a result of which, he received 7 injury on his left leg below the knee. It is said that after running to a distance of several meters, he took lift in the scooter coming in the opposite direction and found a group of villagers gathered at the scene; when enquired, they told him that A1 to A3 took the injured driver to a nearby hospital.
12. P.W.1 was cross-examined at length, but nothing useful came to be elicited to discredit his testimony. The only thing which came to be established by way of his admissions is that there is no proof to show that he was working as a cleaner at the tanker and that he went to the Police Station twice i.e., on the date of incident and on the date of Test Identification Parade. The suggestion that accused are no way concerned with the offence was denied by him. The suggestion that he did not state before the Doctor about the door of the lorry hitting him while he jumping out also denied by him. The suggestion that the accused never boarded the lorry nor diesel was there in the tanker was denied by him. To a suggestion that photographs of the accused were shown to him prior to Test Identification Parade was also denied. From the evidence, it is very much clear that as on the date of incident he was in the lorry and noticed the incident in question. The accused though made every effort to show that he was not there in the lorry was not able to succeed in establishing the same. In fact, the evidence of the Doctor also establishes the presence of the accused. Therefore, we feel that P.W.1 is a wholly reliable witness whose evidence can be relied upon.
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13. The Hon'ble Apex Court in Yakub Ismailbhai Patel Vs. State of Gujarat1 held that, if the testimony of a solitary eyewitness is credible and convincing, conviction can be based solely upon it.
14. The evidence of P.W.2 gets corroboration from other quarters as well. P.W.2, in his evidence, states that he was running a hotel at Alavalapadu cross-roads where the incident took place. According to him, while he was in the hotel, he heard cries, upon which he rushed to that place and found driver with injuries on right side of the stationed lorry. He also noticed A1 to A3 present at that place, who informed them that the driver sustained injuries and they were taking the driver to a Hospital. So saying, they took the driver in the same oil tanker. About 1 ½ hours later, the cleaner of the oil tanker came there and informed as to what happened. He was cross-examined at length, but only thing which could be elicited form his evidence is faces of three persons were not visible in the night and that the police persons used to visit his hotel now and then. By this, learned counsel tried to contend that he is not the reliable witness. Even accepting the answers given by him in the cross-examination, still his evidence would reveal about the deceased and accused Nos.1 to 3 together on that night. He also speaks about the deceased lying on the floor with injuries and accused Nos.1 to 3 taking the deceased in that lorry stating that they would take him to the hospital.
15. P.W.3 is a Police Constable working at the Coastal Security Police Station, Ramayapatnam. According to him, at about 11.30 1 2004 (2) ALD (Crl.) 881 (SC) 9 PM on that day, Sub-Inspector of Police informed him about theft of oil tanker containing diesel. Immediately, he proceeded to Puttavaripalem cross-roads and started checking the vehicles coming from Addanki side. At that time, he noticed one vehicle at a distance of 500 meters. He also noticed three persons running away from that vehicle. He then proceeded towards the said vehicle and noted the registration number of the said vehicle and immediately informed the Sub-Inspector of Police about the same.
16. From the evidence of this witness, it is very clear that A1 to A3 came there in that vehicle and on seeing the police, stopped the vehicle and then ran away.
17. P.W.4 is also a resident of Alavalapadu road junction running a hotel at the cross roads. He noticed two persons getting down with a water bottle from a stationed vehicle and about 10 minutes later both of them moved into the said oil tanker. He identified A1 and A2 as persons who boarded the oil tanker on that day. According to him, after traveling to a distance of 200 meters, the oil tanker stopped and thereafter he heard cries from that oil tanker. He asked his son Karpurapu Nagababu to go and see as to what happened. Thereafter, he also went there and noticed the driver of the tanker down with bleeding injuries on the head. A1 to A3 informed him that the cleaner of lorry attacked the deceased and left that place. At that time, one Satish went on motorcycle to bring the cleaner. A1 to A3 informed that they would take injured driver to the hospital and left the place along with the tanker. Five minutes later cleaner came in the vehicle of Satish who informed as to what happened. From the evidence of this witness, it 10 establishes the presence of the accused along with the injured deceased and a false explanation has been given by the accused as to how the deceased sustained injuries.
18. P.W.6 is another witness who in his evidence deposed that he is doing tyre puncture work and owns shop at Puttavaripalem cross roads. According to him, on the intervening night of 4/5.6.2010 while he was sleeping at the puncture shop, some unknown offenders committed theft of M.O.1 cell phone and later he was called by the police to identify the said cell phone. From the evidence of P.Ws.1 to 4 it is very much clear that it was A1 to A3, who are responsible for the incident. P.W.1 being injured eyewitness his presence in the lorry cannot be disputed though there are certain variations in the evidence of the Doctor who issued the Wound Certificate, but the same, in our view, do not go to the root of the matter.
19. Coming to the identification of the accused in the Test Identification Parade conducted by the Magistrate, it is noted that P.Ws.1, 4 and others identified the accused as the persons present in the lorry and participated in the attack and also present near the dead body after the incident. However, the trial court did not give much importance to the Test Identification Parade as Rule 34
(ii)(a) of Criminal Rules of Practice and Circular Orders, 1990 was not strictly complied with. Be that as it may, we have the evidence of P.W.1, whose evidence, in our view, amply demonstrates the involvement of the accused in the crime. It is no doubt true that P.W.1 did not mention the name of the deceased in the first report, but, that by itself, in our view, do not make the entire incident 11 doubtful. Further, the failure on the part of the prosecution to seize the trip sheet and to examine the officials of the Oil Corporation do not matter much in view of the evidence of Investigation Officer who categorically stated that immediately he informed the owner of the lorry and handed over the tanker with the diesel.
20. Coming to the incident of theft, more particularly the cell phone belongs to P.W.6, the same was recovered after the arrest and P.W6 identifies the same as belong to him. In so far as the offence under Section 365 is concerned, accused Nos.1 to 3 misrepresented that they are passengers, boarded the lorry and caused injuries to P.W.1 and after causing injuries and death of the deceased took the injured driver by informing that they are taking him to the hospital which, in our view, amply establishes the offence punishable under Section 365 I.P.C.
21. Insofar as offence under Section 326 I.P.C. against A2 and A3 for causing injuries to P.W.1 is concerned, P.W.1 in his evidence deposed that A3 alone beat him with a rod on head and caused injury. The evidence of P.W.10 - Medical Officer is to the effect that on 4.6.2010 he examined P.W.1 and found the injuries simple in nature. As P.W.1 sustained simple injuries, A3 cannot be punished for the offence punishable under Section 326 I.P.C., but A3 is liable to be punished under Section 324 I.P.C.
22. Insofar as offence under Section 120-(B) I.P.C. against A1 to A5 is concerned, the case of the prosecution is that A4 was doing business of kerosene and diesel and he used to purchase the same out side for cheaper rate and supply the same to boat owners. A4 12 borrowed an amount of Rs.5,00,000/- from A5. After sometime, A5 started pressurizing A4 to discharge the amount due. Hence, A4 contacted A1 to A3 and enquired about bringing diesel tanker by committing theft from the outlet at Kondapalli near Ibrahimpatnam. A4 put-forward the proposal of supply of diesel instead of clearing of due by diverting diesel tanker going to kondapalli outlet, for which A5 accepted and in pursuance of execution of their idea, A1 went to Vizag prior to 20.5.2010 to meet A4, A1 asked A2 and A3 to go to Kakinada and stayed in B.R. lodge and a room was booked by A4; on that, A2 and A3 went to Kakinada on 20.5.2010 and stayed in a room No.110 of B.R.Residency, which was booked by A4 and A2 and A3 gave fake names at the reception, but A1, A3 and A4 noted their cell numbers in the register of B.R.Residency, Kakinada. All the accused came to the room No.110 and they discussed and conspired together and as per their conspiracy, A1 to A3 had to bring diesel tanker either by committing theft or diverging it for which they get Rs.5,00,000/-. But to prove the offence, the prosecution did not examine the person who issued Ex.P18 register of occupants at B.R. Residency. Except marking of Ex.P18, the prosecution did not adduce any evidence to prove that A1 to A5 stayed in B.R. Residency. None of the occupants of B.R. Residency were examined and there is no evidence that A1 to A5 were met at B.R. Residency. Therefore, the prosecution failed to prove the offence punishable under Section 120-B I.P.C. against the accused.
23. Insofar as offence under Section 379 I.P.C. against A1 is concerned, the case of the prosecution is that on noticing that 13 Police were checking the vehicles, A1 and A3 ran away throwing the dead body by the side of Medarametla-Addanki road by taking cell phone of the deceased and took the shelter in the nearby fields. A1 committed theft of cell phone, which belongs to P.W.6 and the same was recovered from the possession of A1 under the cover of Ex.P14. But, there is no convincing evidence to prove that the said M.O.1 belongs to P.W.6. Hence, the charge against A1 for the offence punishable under Section 379 I.P.C. is not proved with cogent evidence and accordingly A1 is entitled for the benefit of doubt for the offence punishable under Section 379 I.P.C.
24. Further, non-framing of charges specifically under Section 302 and Section 302 read with Section 34 I.P.C. against A2 & A1 and A3 causes no prejudice to the accused for the reason that there is a charge framed under Section 302 read with Section 114 I.P.C. against A2 and the charge under Section 302 simplicitor against A1 to A3.
25. Mere error, omission or irregularity in the charge will not invalidate finding as matter of law in the absence of prejudices to the convicted person - State of Bombay (Now Maharashtra ) Vs. Umarsaheb Buransaheb Inamdar and others2; Teeka Vs. State of Uttar Pradesh3; Bharwad Mepa Dana and another Vs. State of Bombay4.
26. For the aforesaid reasons, we are of the opinion that the prosecution succeeded in establishing the guilt of the appellants - accused Nos.1 to 3 beyond reasonable doubt and the trial Court 2 AIR 1962 SC 1153 3 AIR 1961 SC 803(C) 4 AIR 1960 SC 289 14 was right in convicting the appellants - accused Nos.1 to 3 as stated above.
27. In the result, the appeal fails and it is accordingly dismissed, confirming the conviction and sentence passed in S.C.No.354 of 2011, dated 13.6.2014 on the file of the III Additional District & Sessions Judge (FTC), Ongole.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR ______________________________ JUSTICE BATTU DEVANAND Date : 23.1.2020 skmr