Andhra Pradesh High Court - Amravati
The State Of A.P., vs S.Lakshminaryana, A1 on 20 March, 2025
Author: K Sreenivasa Reddy
Bench: K Sreenivasa Reddy
APHC010456762008
IN THE HIGH COURT OF ANDHRA
PRADESH AT AMARAVATI [3327]
(Special Original Jurisdiction)
THURSDAY, THE TWENTIETH DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY
CRIMINAL APPEAL NO.672 OF 2008
Between:
The State of AP., ...APPELLANT
Rep. by its Public Prosecutor.
AND
S Lakshminaryana and others ...RESPONDENTS
Counsel for the Appellant:
1. PUBLIC PROSECUTOR Counsel for the Respondents:
1. J UGRANARASIMHA The Court made the following JUDGMENT:
This Criminal Appeal is preferred by the State against the Judgment dated 21.01.2004 passed in Sessions Case No.351 of 2003 by the learned Additional Assistant Sessions Judge, Tirupathi, whereby and whereunder respondents 1 to 9 herein/A1 to A9 were found not guilty of the offences punishable under Sections 397 and 120-B IPC, accordingly, they were acquitted of 2 SRK, J Crl.A.No.672 of 2008 the said charges. Case against respondent No.10/A10 was split up and numbered as PRC No.46 of 2003 on the file of the learned III Additional Judicial Magistrate of First Class, Tirupati.
2. Case of the prosecution, in brief, is as follows.
i) All the accused are residents of Salem and they are close friends and associates. PW.1 is the Senior Officer and one Ramachandran is the Regional Manager, of RTC Private Limited of Chennai and Bangalore, and they were looking after the allotment of vehicles to transport goods from their branches and they were also contract transporters to ITC Company Cigarettes.
On 20.11.2002, 390 CFCs of Scissor Cigarette cartons and 8 CFCs of Tobacco power cartons belonging to ITC Company were received by RTC Private Limited at Itchapuram and same were loaded in the Container bearing registration No.AP 16 U 8499 of PW.2 by RTC Private Limited to transport the same to Bangalore. On the same day, PW.2 and his Cleaner PW.3 left Itchapuram with the said container. After passing some distance from Chandragiri near Samatha Gardens, on 22.11.2002 midnight, as per the conspiracy of A1 and A10, A2 to A9 and two others came in a lorry, over took the container of Abdul Khader and kept the 3 SRK, J Crl.A.No.672 of 2008 lorry across the road. When Abdul Khader stopped his container, A2 to A9 and two others got down from their lorry, rushed into the container, and A2, who was armed with a knife, threatened Abdul Khader and caused simple injuries on his left hand with the said knife. A9, who was also armed with a knife, threatened Sk. Khadar Valli @ Madarvalli at the point of knife and caused simple injury to him. A2 to A9 and two others pulled both PWs.2 and 3 from out of the container and after tying their hands, legs and eyes with cotton ropes and cloth, A2 to A9 shifted them to the lorry and they took away the lorry and container towards Chittoor for about 25 to 30 KMs and diverted both the vehicles and shifted 297 CFCs of Scissor cigarette cartons from the container to the lorry of the accused. The accused planned to kill both PWs.2 and 3, but on their request, accused made them to drink some water and after drinking water both of them fell unconscious. The accused escaped with the booty worth about Rs.32,67,000/-. After regaining consciousness, PWs.2 and 3 informed the said incident to S. Muralidharan and Ramachandran, who in turn gave a report Ex.P1 to the police.
ii) Basing on Ex.P1, P.W.24-Sub-Inspector of Police registered a case in Crime No.186 of 2002 of Chandragiri Police 4 SRK, J Crl.A.No.672 of 2008 Station for the offences punishable under Sections 395, 397, 201, 120-B and 411 IPC and issued FIR Ex.P29. PW.27 - the Inspector of Police, took up investigation, visited the scene of offence and prepared rough sketch Ex.P30 and seized MOs.1 to 9 under Ex.P2 and referred the injured PWs.2 and 3 to Ruya Hospital, Tirupati for treatment. PW.16, who examined PWs.2 and 3, issued wound certificates Exs.P19 and P20. During the course of investigation, cartons of cigarettes were seized under three panchanamas marked as Exs.P7, P8 and P9. PW.12 - the Inspector of Police arrested A2 to A8 under Ex.P14. After completion of investigation, charge sheet was filed against the accused for the aforesaid offences.
3. The charge sheet was taken on file as PRC No.41 of 2003 on the file of the learned III Additional Judicial Magistrate of First Class, Tirupati. However, subsequently, the case against A10 was split up and numbered as PRC No.46 of 2003. As the offence punishable under Section 397 IPC is exclusively triable by the Court of Session, the learned Magistrate, after complying with the due procedure prescribed under law, committed the said PRC No.41 of 2003 against A1 to A9 to the Court of Session, Chittoor, 5 SRK, J Crl.A.No.672 of 2008 by an order dated 17.09.2003. The said case was numbered as SC No.351 of 2003 and thereafter the same was made over to the Court of the Additional Assistant Sessions Judge, Tirupati, for disposal according to law.
4. On appearance of A1 to A9, charge under Section 397 IPC was framed against A2 to A9 and charge under Section 120-B IPC was framed against A1, contents of the charges were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.
5. On behalf of the prosecution, PWs.1 to 29 were examined and got marked Exs.P1 to P32 and MOs.1 to 14.
6. After closure of the prosecution evidence, accused were examined under Section 313 Cr.P.C., explaining the incriminating material found against them in the evidence of prosecution witnesses, for which they denied.
7. On behalf of the accused, no witnesses were examined, except marking Exs.D1 to D3.
8. The learned Assistant Sessions Judge, on appreciation of entire oral and documentary evidence on record, found A1 to A9 not guilty of the charges levelled against them and, accordingly, acquitted them, vide impugned judgment dated 21.01.2004 on the 6 SRK, J Crl.A.No.672 of 2008 ground that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Aggrieved by the said judgment passed by the learned Assistant Sessions Judge, the State preferred the present appeal.
9. Learned Additional Public Prosecutor appearing on behalf of the appellant/State submitted that, as per the conspiracy of A1, A2 to A9 committed highway dacoity on the night of 22.11.2002 while 390 CFCs of Scissors Cigarette cartons and 9 CFCs of tobacco cartons were being transported in the container of PW.2 Abdul Khader, owner-cum-driver, and shifted 297 cartons of cigarettes into their lorry and caused injuries to PWs.2 and 3, and the said cartons were recovered from A1, PWs.6, 14 and 22. He further submitted that though the prosecution established its case by examining PWs.1 to 29, the learned Assistant Sessions Judge erred in acquitting the accused on the grounds that the mahazar witnesses with regard to arrest of A2 to A8 turned hostile and the descriptive particulars of the culprits are not there in Ex.P1. Hence, he prays to set aside the order of acquittal passed by the learned Assistant Sessions Judge and convict the respondents. 7
SRK, J Crl.A.No.672 of 2008
10. On the other hand, Sri J. Ugra Narasimha, learned counsel appearing on behalf of the respondents 1 to 9/A1 to A9, submitted that the learned Assistant Sessions Judge, on appreciation of entire oral and documentary evidence on record, held that the prosecution failed to prove the guilt of the accused beyond reasonable doubt and the learned Assistant Sessions Judge rightly found the respondents 1 to 9 not guilty of the charges leveled against them, and there are no grounds to interfere with the same.
11. Heard. Perused the record.
12. The evidence of PWs.1 and 2 is to the effect that on 20.11.2002, they started from Ichapuram to go to Bangalore by loading 390 CFCs of Scissor cigarette cartons and 8 CFCs of tobacco in the container. On 22.11.2002, at about 12.00 or 12.30 midnight, when they crossed Chandragiri town, one lorry came behind them and after passing their container, the said lorry was stopped across the road. About 8 to 10 persons got down from the said lorry. Two persons, armed with knives, caused injuries to them. PWs.2 and 3 were tied with ropes and shifted to the lorry. Their container and the said lorry started to proceed further to Bangalore side and after going to 25 or 26 KMs, the accused 8 SRK, J Crl.A.No.672 of 2008 shifted the cartons from the container to the front portion of the lorry and they forced PWs.2 and 3 to drink some liquid substance and decamped with the booty. After regaining consciousness, PWs.2 and 3 narrated the incident to PW.4 by phone, who in turn informed the same to the officials of RTC Private Limited at Chennai and Bangalore. Then PW.1 lodged a Ex.P1 report to the police.
13. The contention of the accused is that no officials of ITC were examined to prove that their cigarettes were transported in the lorry of PW.1 at the instance of RTC Private Limited. But, the prosecution has proved the said aspect by examining PWs.1 and 19 with regard to their transporting cigarettes of ITC on behalf of RTC Private Limited through the lorry of PW.2 on hire basis. PWs.2 and 3 deposed that the relevant records in the lorry were taken away by the culprits. Though PWs.1 to 3 and 19 were cross-examined on various aspects to say that no such dacoity took place on the night of 22.11.2002 at mid night, nothing worth is elicited except by putting some bald suggestions which were duly denied by them. On the other hand, PW.4, the brother of PW.2, supported the version of PW.2 that he received phone call 9 SRK, J Crl.A.No.672 of 2008 from PW.3 by narrating the incident of committing dacoity by some unknown persons. He requested him to inform the same to the Company at Chennai and Bangalore. PWs.3 and 5 deposed about seizure of MOs.1 to 9. By taking into consideration of the evidence of PWs.1 to 5 and 19 apart from the evidence of police officials PWs.24 and 27, it can be held that some unknown persons committed highway dacoity near Chandragiri on 23.11.2002 at 12.30 midnight and they have taken away 297 cartons of cigarettes in the lorry brought by them.
14. Now the point that arises for determination is whether the prosecution proved the guilt of the accused beyond all reasonable doubt.
15. Case of the prosecution is that A1 and A10 entered into conspiracy with A2 to A9 for committing dacoity and in pursuance of which A2 to A9 committed dacoity and A1 received the property secured by A2 to A9 and he sold 77 cartons of cigarettes to PW.6 and retained 113 cartons with him in the house of PW.9, which was taken by him on rent, thus A1 committed the offence under Section 120-B IPC. In this regard, the evidence of PWs.6 to 11, 19 and 29 is to be scrutinized carefully.
10
SRK, J Crl.A.No.672 of 2008
16. PW.6 deposed that he purchased 77 cartons of cigarettes from A1 and he asked A1 to give bills, but he did not give such bills to PW.6. Except the oral evidence of PW.6, there is no iota of evidence to connect A1 with regard to supply of 77 cartons of cigarettes to PW.6. There is no independent evidence or document placed by the prosecution to prove this aspect. PW.7, Manager of Govindaraja Lorry Service, Salem, deposed that PW.6 booked 24 cigarette cartons in their lorry service on 05.12.2002 and the said cartons were seized in the presence of PWs.6 to 8. Therefore, A1 was not in the picture physically by the time of seizure of cartons and cash of Rs.2,20,000/- under Exs.P7 and P8. PW.6 did not whisper any word with regard to arrest of A1 under Ex.P9. PW.7 also did not speak anything against A1 except by saying the seizure of 24 cartons from Govindaraja Lorry service office under Ex.P8. However, PW.9 deposed about the seizure of 113 cartons of cigarettes and 40 empty boxes and arrest of A1 under Ex.P9. PW.29 the Sub- Inspector of Police, Chandragiri deposed about A1 confessed the offence and took them to Godown, wherein they found 113 cartons of cigarettes, 40 empty boxes, but he did not state that Rs.50/- was seized from the pocket of A1. The said amount of 11 SRK, J Crl.A.No.672 of 2008 Rs.50/- was not produced before the Court. Except PW.9, no neighbouring person of that locality was examined to prove that A1 and A10 took the house of PW.9 on rent basis. There is no record to show that A1 and A10 took the said house on rent basis from PW.9. On the other hand, the police have not produced the property seized before the committal Court and admittedly the said cartons were handed over by the police to PW.1 directly. Non-production of such property before the committal Court is fatal to the prosecution case.
17. PW.11, the employee of RTC Company Limited, deposed about seizure of 26 cartons of cigarettes from PW.10 through whom Exs.P11 to P13 were marked. Exs.P11 to P13 are consigning copies along with relevant entries in the loading sheet of Govindaraja Lorry Service and Ex.P6 is LR original and duplicate issued by PW.7. All these documents would go to show that consignee and consignor are Raja Store, Salem and Raja Stores, Chennai. Name of PW.6 is not shown as consignee in Exs.P6 and P11 to P13. The prosecution has not placed any sufficient material to prove that A1 supplied 77 cartons of cigarettes to PW.6 and kept 113 cartons in the house of PW.9 and 12 SRK, J Crl.A.No.672 of 2008 also not placed any evidence against A1 to the effect that he entered into conspiracy with A2 to A10. Hence, this Court has no hesitation to hold that the prosecution failed to prove the charge under Section 120-B IPC against A1.
18. Insofar as the case against A2 to A9 is concerned, according to the prosecution, A2 to A8 were arrested by PW.12 in the presence of PWs.17 and 25. PWs.17 and 25 have not supported the case of prosecution and turned hostile. PW.23, who is said to be present at the time of recording confession of A2 to A8, also did not support the prosecution case. Admittedly, the investigating officer died during the pendency of Sessions Case. Therefore, it is unsafe to rely upon the evidence of PW.12 in the absence of corroboration from independent witnesses PWs.17 and 25.
19. PW.14 deposed that he purchased 25 cartons of cigarettes from A2 and A8 by paying Rs.2,50,000/-. On 08.03.2003 police came to their shop along with A2 and A8 and seized Rs.2,70,000/- the value of cigarettes under Ex.P18. PW.15 deposed that police informed him that A2 to A8 sold 25 cartons to PW.14. It appears that PW.14 has not obtained any receipt from 13 SRK, J Crl.A.No.672 of 2008 A2 and A8. There is no record to show that A2 and A8 supplied 25 cartons of cigarettes to PW.14. Except the oral evidence of PWs.14 and 15, there is no sufficient evidence placed by the prosecution to connect A2 and A8 for recovery of Rs.2,70,000/- under Ex.P18. PW.22 deposed that about one year back he purchased 50 or 60 cartons of cigarettes from unknown persons and he sold them for Rs.6,00,000/- and odd. Police seized Rs.6,48,000/- under Ex.P21. PWs.26 and 18 stated about seizure of Rs.6,48,000/- under Ex.P21. PW.26 deposed that three persons were in the custody of police and he cannot identify them. Therefore, the evidence of PWs.18 and 26 is in no way helpful for the prosecution to connect any of the accused to the alleged crime. PWs.18 and 19, who are said to be the witnesses to speak about the arrest of A9 and seizure of knife and cash of Rs.150/- from A9 under Ex.P22 mahazar did not whisper any word with regard to arrest of A9. The cash of Rs.150/- alleged to have been seized from A9 is not produced either before the committal court or before the trial Court and there is no explanation from the prosecution with regard to the same. PW.20 deposed that he gave his Mini Lorry - MO.11 on lease to A2. 14
SRK, J Crl.A.No.672 of 2008 Except the oral evidence of PW.20, there is no record to show that MO.11 was leased out to A2.
20. The Doctor PW.16 deposed that on 23.11.2002, she examined PWs. 2 and 3 and issued wound certificates Exs.P19 and P29. However, Ex.P1 report given by PW.1 is silent with regard to sustaining injuries by PWs.2 and 3 in the hands of culprits. PW.3 did not whisper any word with regard to sustaining injury in the hands of culprits. Though PW.2 stated that A2 caused injury No.1, he did not state as to how he sustained injury No.2 in Ex.P19.
21. PW.21 conducted test identification parade in respect of A2 to A8 on 28.02.2003 in New Sub-Jail, Chittoor. PWs.2 and 3 in their evidence deposed that they identified A2 to A9 before the Magistrate in test identification parade and again in the Court hall while adducing their evidence. PWs.2 and 3 did not state the descriptive particulars of the accused in their statements under Section 161 Cr.P.C as well as the statements recorded by the Magistrate before conducting test identification parade. Ex.P1 is also silent with regard to descriptive particulars of the culprits committed dacoity by causing injuries on PW.2. Ex.P1 is the 15 SRK, J Crl.A.No.672 of 2008 earliest report which was prepared as per information furnished by PWs.2 and 3 and the said report was given on 23.11.2002 at about 06.00 PM. There is delay of about 18 hours in lodging report from the time of offence taken place in the mid night on 22.11.2002. PWs.2 and 3 have not stated about identity particulars of the persons whom they were going to identify before the Magistrate and in respect of which incident they have involved and what time they happened to see them. PWs.2 and 3 never stated the role played by each accused while identifying them in the test identification parade. The contention of A2 to A8 is that they stated before the Magistrate that they were shown to PWs.2 and 3 while they were brought to Tirupati on PT warrant and they stated so in their examination under Section 313 Cr.P.C. Therefore, identify of accused by PWs.2 and 3 is doubtful.
22. The officials of ITC are not examined in this case. But, PWs.1 and 19 deposed that they transported cartons of ITC in their RTC Private limited through the container of PW.2. Unfortunately, the investigating officer in this case died. Except the cash, the dacoity property i.e. Cigarettes cartons, were not produced even before the committal Court. Admittedly, PW.1 had 16 SRK, J Crl.A.No.672 of 2008 received such cartons from police directly. The mahazar witnesses with regard to arrest of A2 to A8 turned hostile. The prosecution has not placed sufficient material before the Court to connect A1 with regard to supply of cartons to PW.6 etc. The evidence of PW.19 is lack of corroboration with regard to arrest of A9 under Ex.P22. The descriptive particulars of the culprits are not there in Ex.P1, 161 Cr.P.C. statements of PWs.2 and 3 and the statements of PWs.2 and 3 given before the Magistrate at the time of identification parade. By taking into consideration all these aspects, this Court is of the opinion that the prosecution failed to prove the charge under Section 397 IPC against A2 to A9 beyond all reasonable doubt.
23. In view of the aforesaid facts and circumstances of the case, the impugned judgment passed by the learned Assistant Sessions Judge is on correct lines and does not call for any interference by this Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed.
24. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 21.01.2004 passed in Sessions Case No.351 17 SRK, J Crl.A.No.672 of 2008 of 2003 by the learned Additional Assistant Sessions Judge, Tirupathi.
As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed.
_____________________________ JUSTICE K. SREENIVASA REDDY Dated:20.03.2025.
Nsr 18 SRK, J Crl.A.No.672 of 2008 THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY Criminal Appeal No.672 of 2008 Dated:20.03.2025 Nsr