Andhra HC (Pre-Telangana)
Alavala Nagi Reddy And 4 Others vs The State Of Andhra Pradesh, Rep. By ... on 5 October, 2018
Equivalent citations: AIRONLINE 2018 HYD 59
Bench: Suresh Kumar Kait, T. Amarnath Goud
HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE T. AMARNATH GOUD
CRIMINAL APPEAL No.663 OF 2015
05-10-2018
Alavala Nagi Reddy and 4 others Appellants/Accused.
The State of Andhra Pradesh, rep. by Public Prosecutor...Respondent
Counsel for the Petitioner: Ms. B Vasantha Lakshmi
for Sir B. Krishna Mohan
Counsel for the Respondent: Public Prosecutor (AP)
<Gist :
>Head Note :
? Cases referred :
1. (2006) 2 SCC 240
2. (2008) 13 SCC 271
3. AIR 2008 (SC) 610
HONBLE SRI JUSTICE SURESH KUMAR KAIT
AND
HONBLE SRI JUSTICE T. AMARNATH GOUD
CRIMINAL APPEAL No.663 OF 2015
JUDGMENT:
(per Honble Sri Justice Suresh Kumar Kait) The present appeal is preferred against order and judgment dated 29.06.2015 passed in Sessions Case No.5/D/12 by the Special Sessions Judge-cum-IV Additional District Judge, Guntur, whereby the learned Court held guilty for the offences punishable under Sections 395 and 397 IPC against appellants/A-1 to A-5 and accordingly convicted under Section 235(2) Cr.P.C. Consequently A-1 to A-5 are sentenced to undergo Rigorous Imprisonment for life for the offence under Section 395 IPC and also sentenced to pay a fine of Rs.25,000/- each, in default of payment of fine, to suffer Simple Imprisonment for six months each. Further, the appellants/A-1 to A-5 are sentenced to undergo Rigorous Imprisonment for a period of seven years each for the offence under Section 397 of IPC. The sentences of Rigorous Imprisonments imposed for the offences under Sections 395 and 397 of IPC shall run concurrently.
2. The case of the prosecution is that on 23.11.2011 morning Mogulluri Narasimha Rao-PW.1, a resident of Veldurthi came to broker office of V. Bhaskara Rao-PW.11 at Macherla, kept his Hero Honda in front of said office and went to Guntur by bus and collected a cheque for Rs.8 lakhs drawn on ING Vysya Bank, Arundelpet, Guntur, from Sure Yellamanda-PW.7 towards purchase of cotton from the farmers. Thereafter, he en-cashed the said cheque in ING Vysya Bank, Guntur and returned to Macherla at 8.00 P.M. along with cash of Rs.8 lakhs kept in a black colour bag. Then he informed the same to Bhaskara Rao-PW.11 and left Macherla at 9.20 P.M. on his motor cycle to go to Veldurthi village. When he reached Mandadi village, two unknown persons came and over took Narasimha Rao-PW.1. He tried to escape from them and turned his vehicle back, but he could not control the balance of his vehicle and fell down. Thereafter, one person stabbed him with knife on abdomen and asked for money and two other culprits came by another motor cycle and all the four culprits asked Narasimha Rao- PW.1 to give cash. The culprit who stabbed PW.1 snatched the cash bag containing cash of Rs.8 lakhs and due to fear PW.1 raised cries for help and started running towards Mandadi village. All the four culprits chased him up to some distance and escaped from there. Thereafter Mutyala Brahmam, who was coming from Veldurthi side on his motor cycle noticed PW.1-Narasimha Rao and shifted him to Government Hospital, Macherla. After first aid, the injured was shifted to Global Hospital, Hyderabad for better treatment.
3. Thereafter, on the basis of statement given by PW.1, at Government Hospital, Macherla, a case in Crime No.112 of 2011 under Section 394 IPC was registered in Veldurthi Police Station. The Inspector of Police, Macherla, took up investigation, inspected the scene of offence, prepared rough sketch and scene observation report in the presence of mediator. Also took Photographs of scene of offence and seized the Hero Passion Pro motor cycle of PW.1, Aashirvad 100gms used chilli powder, blood stained earth, control earth under the cover of observation report. He also recorded the statements of witnesses. Later on 26.11.2011 at 2.00 P.M. Inspector of Police, Macherla, arrested A-5 at Ring road centre, Macherla, in the presence of mediators. He recorded his confession about commission of his offence and seized cash of Rs.50,000/- and cell phone of Karbon company with SIM card bearing No.9959585014 from the possession of A-5 under a cover of mediatornama duly attested by PWs.5 and 6. Thereafter, on the basis of confession of A-5, he arrested A-1 to A-4 on the same day at 3.15 PM in a dilapidated stone polish mill situated opposite to LCK Mini Cement Factory, Sagar Road, Macherla. Also recorded their confessional statements and seized two un-registered motor cycles and also seized cash of Rs.2,50,000/- and cash of Rs.50,000/- to be shared to A-5, black colour bag, PAN card belongs to PW.1, Samsung company cell phone with SIM card No.998518833 from the possession of A-1, cash of Rs.1,50,000/- , Nokia cell phone with SIM card bearing No.9666337414 from the possession of A-2, cash of Rs.1,50,000/-, Nokia cell phone with SIM card bearing No.9652782455 from the possession of A-3, cash of Rs.1,50,000/- Yxtel cell phone with SIM card bearing No.9912883735 from the possession of A-4. The Investigating officer also seized blood stained knife under a cover of mediatornama duly attested by mediators at 5.15 P.M. on 26.11.2011 near the bushes situated on western side of Mirchi crop lands of one Sunkara Venkata Ramaiah of Mandadi village. Later he altered the Section of law to 395 IPC from 394 IPC and sent A-1- to A-5 to judicial custody. After completion of investigation, the Inspector of Police, Macherla-PW.14 filed charge sheet before the concerned Magistrate. After taking cognizance for the offences under Section 395 IPC committed to the Court by the Judicial Magistrate of I Class, Macherla under PRC No.2 of 2012 and the same was registered as SC No.5/D/12 by the trial Court.
4. On appearance of the appellants/accused before the trial Court, charges under Sections 395 and 397 of IPC were framed against them and the said charges were read over and explained to them in vernacular language, for which, all the appellants pleaded not guilty and claimed to be tried.
5. To bring the guilt in home, the prosecution has examined PW.1 to PW.14 and got marked Ex.P1 to Ex.P24 and MO.1 to MO.11. After closure of prosecution evidence, the appellants were examined under Section 313 Cr.P.C. for which they denied the prosecution case and reported no defence evidence and stated that due to political rivalry the case is foisted against them.
6. Learned trial Court after considering the prosecution evidence, material on record and statement under Section 313 Cr.P.C. all the appellants are convicted for the offences mentioned above. Hence, the present appeal.
7. Learned counsel appearing on behalf of appellants submits that PW.1 is the complainant who himself has not supported the case thus declared hostile. In addition to above, PWs.2 to 8 also declared as hostile. Thus none of the prosecution witnesses have supported the prosecution case despite the learned trial Court has convicted the appellants in the present case. He further submits that PW.5 and PW.6 are Village Revenue Officers and PW.8-Bank Manager of ING Vysya Bank, who are responsible Officers, also declared hostile. Therefore, the trial Court ought to have acquitted the appellants from the charges framed against them.
8. In addition to above, learned counsel for the appellants submits that PW.9-I Additional Junior Civil Judge, Gurazala, who conducted Test Identification Parade on 28.12.2011, whereas, the appellants were arrested on 26.11.2011 almost after one month before and PW.1 admitted that the appellants/A-1 to A-5 were shown prior to Test Identification Parade. Thus there is no evidentiary value of the Test Identification Parade conducted by PW.9 in the present case. He further submits that since PW.1 has identified the appellants but the fact remains that the appellants were shown to PW.1 prior to Test Identification Parade.
9. Learned counsel for the appellants further argued that PW.13-Doctor, who issued wound certificate to PW.1, deposed that PW.1 admitted in Global hospital on 24.11.2011 with the ailment of hole in small intestine. He removed a piece of small intestine and joined in two ends. In cross- examination, he deposed that injury may be possible due to falling on iron rod from the building upon PW.1. Learned counsel further submits that PW.1 might have received the injury somewhere else however not caused by the appellants herein. Thus the appellants have falsely implicated in the present case. It is the duty of the prosecution to prove the case beyond reasonable doubt against the appellants which they failed for the reason that all the witnesses i.e., PWs.1 to 8 declared hostile, despite that the learned trial Court has convicted the appellants. Thus learned counsel has prayed that the present appeal deserves to be allowed by setting aside the order and judgment passed by the trial Court.
10. On the other hand learned Public Prosecutor appearing on behalf of the State submits that though all the witnesses turned hostile except Official witnesses however PW.1 admitted his signature on Ex.P1 complaint and also claimed amount of Rs.8 lakhs recovered from the appellants. Moreover PW.1 has identified the appellants/A-1 to A-5 in the Test Identification Parade conducted by PW.9-I Additional Junior Civil Judge. He further submits that there is no delay in conducting Test Identification Parade for the reason that as stated by PW.13 that PW.1 had taken treatment nearly one month and thereafter Test Identification Parade was conducted. Thus there is no delay in conducting Test Identification Parade.
11. Learned Prosecutor further submits that the learned trial Court after considering the prosecution witnesses and material on record and after hearing the counsel for the appellants has rightly convicted the appellants. In addition to above, all the appellants were arrested very next day and amount of Rs.8 lakhs also recovered from them which was claimed by PW.1 and handed over to him. The appellants have not claimed that amount recovered belongs to them. Moreover, there is no explanation on record from the appellants side that that amount which was recovered from them belonged to them.
12. PW.1 deposed in his evidence that he knew the accused No.5. He received Rs.8 lakhs from his Vendee towards supply of cotton on 23.11.2011 at ING Vysya Bank, Lakshmipuram, Guntur and thereafter he went to Macherla by RTC bus. He got down the bus at Macherla and was going to Veldurthi village on his motor cycle. On the way, when he reached to Mandadi village, some unknown culprits sprinkled chilli powder on his face and stabbed him with knife on his stomach and thereby he fell down and the said unknown culprits snatched cash of Rs.8 lakhs from his possession and skulled away with the said booty. Five minutes after the said incident, PW.2 who was going on that way saw PW.1 in pitiable condition and PW.1 asked PW.2 to drop him at Government hospital, Macherla. Accordingly, PW.2 admitted to PW.1 in Government Hospital, Macherla. There, police recorded the statement of PW.1 and PW.1 admitted his signature on the complaint copy which is marked as Ex.P1. He further stated that he stated the contents of Ex.P1 to the police.
13. PW.1 also deposed that two days after the said incident police informed him that they found the culprits along with the booty and he may recovered the cash from Judicial Magistrate of I Class, Macherla. Subsequently, the police also conducted Test Identification Parade of the accused and police shown A-1 to A-5 and disclosed their identity prior to conducting of Test Identification Parade. He admitted that prior to conducting of Test Identification Parade, the Magistrate, Macherla obtained his signature on his statement that he can identify the accused. The signature portion of PW.1 on the said statement is marked as Ex.P2.
14. It is pertinent to mention here that, at that stage, the learned Public Prosecutor declared PW.1 as hostile and sought permission to cross-examine him. In his cross- examination PW.1 denied that he stated the contents of statement of Ex.P1 and Ex.P2 containing signature statement to Judicial Magistrate of I Class, Macherla and he is deposing falsehood in order to help the accused.
15. It is important to note that the trial Court observed the contention of PW.1 while giving evidence and accordingly the trial Court recorded its observation in its hand writing after completion of evidence of PW.1 before taking signature of PW.1 on his deposition. The said observation is as follows:
the court observed the witness and found that he is frightening on seeing the accused, as the accused appearing physically and mentally very strong.
16. PW.2 who saw P.W.1 in pitiable condition with stab injury deposed that about three years back one day in between 9.30 to 10.00 P.M. while he was coming from Veldurthi to Macherla, he found PW.1 on the road near Mandadi village in between Uppalapadu - Mandadi villages with stab injury and thereby he took him to Government Hospital, Macherla. PW.2 further stated that he asked PW.1 as to what happened to him, for which, PW.1 replied that some unknown culprits robbed Rs.8 lakhs from him by sprinkling chilli powder and stabbing. As the said witness also not stated real facts, as stated by him in his 161 Cr.P.C. statement, the prosecution declared PW.2 also as hostile witness.
17. The prosecution further examined PW.5-Village Revenue Officer of Mandadi village, who acted as mediator for observation of scene of offence and arrest of accused A-1 to A-5 and recovery of stolen cash from their possession. He admitted his signature on scene observation report, arrest- cum-seizure mahazars of A-1 to A-5 and seizure Mahazar of MO.10-knife under cover of Ex.P20 to Ex.P23, but he pleaded ignorance of contents of said documents. He further stated that when police asked him to sign on those documents, simply he obliged to sign on those documents. Signatures of PW.5 on Ex.P20 to Ex.P23 are marked as Ex.P7 to Ex.P10 respectively.
18. The prosecution also examined PW.6-Village Revenue Officer of Macherla village, who acted as another mediator, for observation of scene of offence and arrest of A-1 to A-5 and recovery of stolen cash from their possession. He also admitted his signatures on scene observation report, arrest-cum-seizure mahazar of A-1 to A-5 and seizure mahazar of MO.10-knife under cover of Ex.P20 to Ex.P23, but pleaded ignorance of contents of said documents. He also stated the same fact as state by PW.5 that when police asked him to sign on those documents, simply he obliged to sign on those documents. Signatures of PW.6 on Ex.P20 to Ex.P23 are marked as Ex.P11 to Ex.P14 respectively.
19. It is pertinent to mention here that the learned trial Court observed in the impugned order and judgment that PWs.5 and 6, who are Government employees, being Village Revenue Officers, turned hostile in the case, very peculiarly. Accordingly, the learned trial Court observed the conduct of witnesses while giving evidence that they are frightening on seeing the accused, who are in the Court dock, because accused are seeing the witnesses with piercing eyes. It is further observed by the trial Court that even though PWs.5 and 6 are Public servants, they turned hostile, because of the threat made by the accused by the visible representations through their eyes from the Court dock. Accordingly, the trial Court opined that PWs.5 and 6, who are consisting abundant family members, even though they are Government employees, got fear to their bodies or to their beloved with the barbarous acts of the accused, due to which, they might have turned hostile.
20. The prosecution has examined PW.9 - I Additional Junior Civil Judge, Gurazala. He stated in his evidence that on 28.12.2011, PW.1 appeared before him and he asked PW.1 whether he can identify the accused persons. Then PW.1 stated that he can identify A-1 to A-4, and thereby, he recorded the statement of PW.1. On the even date, in the noon hours, he visited Sub-Jail, Guruzala, and conducted Test Identification Parade of A-1 to A-4 in Sub-Jail premises. He instructed the Superintendent of Sub-Jail to make arrangements for non-suspects in similar nature of A-1 to A-4. Then he mingled A-1 to A-4 in between 20 non-suspects and asked PW.1 to identify A-1 to A-4. A-1 stood in 9th place, A-2 stood in 5th place, A-3 stood in 15th place and A-4 stood in 22nd place in the line of 20 non-suspects and PW.1 successfully identified A-1 to A-4 by picking them out of 20 non- suspects.
21. PW.9 further deposed that he sent PW.1 to Superintendent room which is far away from the place of Test Identification Parade and which is not visible from the Identification Parade place. Then he asked all the accused to change their places, wearing apparel from non-suspects, as per their wish and will, and to stand along with non-suspects. Then he again asked PW.1 to identify A-1 to A-4. At the second time also, PW.1 successfully identified as A-1 stood in 21st place, A-2 stood in 14th place, A-3 stood in 9th place and A-4 in 5th place by picking them out from the 20 non- suspects. Thereafter he recorded the statements of A-1 to A-4 separately and they all stated that they were falsely implicated in the case. He also obtained signatures and thumb marks of 20 non-suspects along with A-1 to A-4.
22. The prosecution has also examined PW.12-Sub Inspector of Police, Veldurthi, who registered the case in Crime No.112 of 2011 for the offence under Section 394 IPC and submitted original FIR-Ex.P16 to the Judicial Magistrate of I Class, Macherla and copies of FIR to all superior officers. He further deposed that subsequently he altered Section of law from 394 IPC to 395 IPC as per the oral directions of his superior officers and the said altered Memo is marked as Ex.P17.
23. The prosecution has examined PW.13, the consultant surgeon working at Global Hospital, Hyderabad, who deposed that he issued wound certificate-Ex.P18 to PW.1. According to Ex.P18, PW.1 admitted in Global Hospital, Hyderabad, on 24.11.2011 with the ailment of hole in small intestine and he removed a piece of small intestine and joined in two ends and the injury sustained by PW.1 is grievous in nature. The witness denied the suggestions posed by the defence that the width and length of the injury, which is mentioned in Ex.P18 wound certificate is not true and correct.
24. The most important witness is PW.14-Inspector of police, Macherla, who conducted investigation in this case. After receipt of copy of FIR, he took up investigation in the case, and thereafter, visited Government hospital, Macherla, recorded the statement of PW.1 under Section 161 Cr.P.C., and seized blood stained shirt of PW.1 i.e., MO.1 and secured the presence of PWs.2 to 10. Thereafter, he examined them and recorded their statements under Section 161 Cr.P.C. He also visited the scene of offence along with PW.5 and PW.6 drawn rough sketch under cover of Ex.P19 and photographed the scene of offence. He also drafted scene observation report under cover of Ex.P20 and seized red chilli powder i.e., MO.2 and controlled earth and blood stained earth i.e., MO.3. Thereafter, he secured presence of LW.3, PW.3 and PW.4 and recorded their statements under Section 161 Cr.P.C.
25. PW.14 further deposed that on receipt of credible information on 26.11.2011 he proceeded to ring road centre, Macherla, along with PWs.5 and 6 who are Village Revenue Officers and arrested A-5 and recovered amount of Rs.50,000/- and one Karbon cell phone i.e., MO.11 from the possession of A-5. The said accused confessed the offence and thereby he recorded the confessional statement under cover of Ex.P21 in the presence of PWs.5 and 6. He further deposed that upon the confession statement of A-5, he arrested A-1 to A-4 also on the same day at L.K. Cement Factory, Macherla, in the presence of same mediators PWs.5 and 6 and recovered amount of Rs.3 lakhs, black colour bag i.e., MO.5 and Samsung cell phone i.e., MO.6 from the possession of A-1. He also seized cash of Rs.1,50,000/- and Nokia cell phone - M.O.7 from the possession of A-2 and an amount of Rs.50,000/- and Nokia cell phone - MO.8 from the possession of A-3. He further seized an amount of Rs.1,50,000/- and Yextel cell phone M.O.9 from the possession of A-4. He further deposed that A-1 to A-4 confessed the offence, and thereby, he recorded confessional statements of A-1 to A-4 and marked as Ex.P22. A-4 confessed that they have hidden the knife, which was used to stab PW.1 at 6/6 mile stone, near ZP High School, Mandadi Vilalge and he would show the said knife, if the police personnel followed them. Accordingly, PW.14 followed A-1 to A5 along with PWs.5 and 6 mediators and A-4 shown the knife where he has hidden it. Consequently, PW.14 seized the knife i.e., MO.10 under cover of mahazar. Thereupon, he field a memo before Judicial Magistrate of I Class, Macherla, altering the charge from section 394 to 395 of IPC. Subsequently, he sent the blood stained-earth, controlled earth, knife and shirt of PW.1 to the chemical examiner. He got it conducted Test Identification Parade of A-1 to A-4. He also seized two motor cycles i.e, Hero Honda Splendor, black colour Pulsar motor cycle from the possession of A-1 and A-2, on which accused chased PW.1 from Guntur to the scene of offence, under cover of Ex.P23. He received RFSL report under cover of Ex.P24 and after verifying the investigation, he filed charge sheet in the present case.
26. PW.14 in his cross-examination further stated that there is no direct participation of A-5 in this case as per the record and he stated that A-5 added A-1 to A-4 while committing the crime. He denied that the police disclosed the identity of the accused to PW.1 prior to their arrest. He voluntarily stated that since PW.1 was detained in Global Hospital, Hyderabad, due to grievous injury, which was caused by accused, and as such, disclosing of accused to PW.1 does not arise. He admitted that PW.1 got acquaintance with A-5 as he used to work in the broker office of PW.1, and as such, he has not asked to conduct Test Identification Parade of A-5 and sought for conducting of Test Identification Parade of A-1 to A-4 only. He also deposed that some delay was caused in conducting Test Identification Parade of the accused because PW.1 was severely injured and got admitted in Global Hospital, Hyderabad, and after discharging of PW.1 from the hospital, he got conducted Test Identification Parade of A-1 to A-4.
27. As per the prosecution case, the offence of dacoity took place and A-1 to A-5 alleged to have committed the said dacoity. PW.1 supported the prosecution case only to the extent that some unknown culprits robbed him by sprinkling chilli powder in his eyes and by stabbing him, but he stated that he cannot identify the accused, however, at the instant of police, he gave evidence in the Court. Admittedly in this case, except PW.1 there is no other eye-witness to the alleged robbery. Thus the case was rest upon the circumstantial and other material evidences only.
28. Admittedly, PW.2 is not eye-witness to the said incident. The evidence of PW.2 is relevant to the extent that he saw PW.1 at about 9.30 to 10.00 P.M on his way at Mandadi Village with stab injuries and took him to the Government Hospital, Macherla. Hence in order to come to the conclusion that the offence took place at that particular time and place, and hence, the trial Court found that the evidence of PW.2 is relevant.
29. The question in controversy before the trial Court was that whether PW.1 could identify the real culprits or not. Accordingly, the trial Court perused 161 Cr.P.C., statement of PW.1 wherein he stated the physical features and identity particulars of all the accused. He further stated that he saw the accused in the light of motor cycle and he would identify the accused and when he was at brokers office, the office clerk i.e., A-5 in anxious and disgusted manner moving in the office by talking on phone. Accordingly he suspected the role of A-5 behind this crime.
30. It is pertinent to mention here that the said statement under Section 161 Cr.P.C. of PW.1 recorded by the police at about 00.30 hours on 24.11.2011 i.e., immediately after the said incident, thus it comes under the purview of Section 6 of Indian Evidence Act i.e., doctrine of res gestate, which reads as under:
Relevancy of facts farming part of same transaction:
Facts, which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
31. Accordingly whatever was said or done by the victim immediately after the incident will form part of same transaction under Section 6 of Indian Evidence Act. Thus the statement of PW.1 form part of same transaction and connected to the fact in issue, and as such, it is relevant.
32. PW.13-Doctor Varughese Mathal, in his evidence stated that, PW.1 admitted in Global hospital, Hyderabad, on 24.11.2011 with a hole in small intestine and he removed part of small intestine and joined in two ends. The case of prosecution is further strengthened by Ex.P18-wound certificate, which discloses that it was issued to the Sub- Inspector of Police, Veldurthi stating that one Narasimha Rao Moguluri i.e., PW.1 was admitted in their hospital on 24.11.2011 under Dr Varughese Mathai, i.e., PW.13 with stab injuries in abdomen caused at 9.20 P.M. on 23.11.2011. Thereafter, he was discharged on 30.11.2011. Thus the evidence of PW.13 coupled with Ex.P18 is relevant to the fact in issue of receiving stab injury by PW.1 in the hands of unknown culprits at the relevant time of offence.
33. PW.10-Sub Inspector of Police, who recorded the statement of PW.1 at Government Hospital, mentioned above, and transmitted the same on the point of jurisdiction to Veldurthi Police Station. Evidence of PW.12, who registered the case basing upon the statement of PW.1 goes in favour of the prosecution in connecting chain of links which shows that there is no delay in lodging FIR in the case.
34. In addition to above, rough sketch of Ex.P19 has established the case of prosecution that the incident was happened in between crop fields at the outskirts of Mandadi village, where the movement of public is doubtful at odd hours i.e., 9.30 and 10.00 p.m. in the dark night. But it is appeared from Ex.P19 - scene observation report, which was prepared immediately, that blood stained marks, chilli powder packet etc., were present at the scene of offence. Moreover, PW.14 - Investigating Officer seized MOs.2 to 4 i.e., red chilli powder packet, blood stained earth and controlled earth from the scene of offence under cover of Ex.P20 scene observation report in the presence of PWs.5 and 6, the mediators.
35. The prosecution has also succeeded in all attempts i.e., seizure of material objects from the possession of the accused i.e., MO.10 knife under cover of Ex.P23 Mahazar. Police have sent blood stained earth, controlled earth, blood stained shirt of PW.1 and MO.10-knife to the Chemical Examiner and received report-Ex.P14 which establishes the case of prosecution that the blood stains on MO.1 i.e., shirt of PW.1 and MO.10-knife and MO.3-blood stained controlled earth are one and the same and the RFSL report further establishes that they have not found any blood stains on uncontrolled earth. So the evidence of chemical examiner under cover of Ex.P24 proved the guilt of the accused in this case.
36. It is pertinent to mention here that PW.1 stated in his statement recorded under Section 161 Cr.P.C., that A-5 is the root cause for the incident and accordingly at first instance police arrested A-5 and upon confession statement of A-5, police arrested A-1 to A-4 also and recovered the stolen cash from their possession.
37. It is not in dispute that PW.1 knew A-5, because he worked in his office. It is also not in dispute that before the incident, A-5 did not know A-1 to A-4. PW.1 stated the identity particulars and physical features of A-1 to A-4 in his 161 Cr.P.C. statement. Moreover the prosecution collected the call details of cell phone numbers of A-1 to A-5 which reveals that A1 to A-5 contacted with each other prior to the offence. Thus it gives every possibility to commit the offence by A-1 to A-5 conjointly against PW.1 at the dark night time in between crop fields.
38. It is also not in dispute that at the time of conducting Test Identification Parade of the accused, PW.1 identified the accused A-1 to A-4 twice by picking them out of 20 non-suspects before the Judicial Magistrate of I Class, Gurazala.
39. It is established from the evidence of PWs.5 and 6, who are Village Revenue Officers, though declared as hostile that they made their signatures on Ex.P20-Scene Observation Report, Ex.P21 and Ex.P22 confession-cum-seizure mediator- namas of A-1 to A-5 and Ex.P23-seizure-Mahazarnama of property. So to the extent of admitting signatures by PWs.5 and 6 on all the mediator-namas, become relevant in the present case.
40. It is not in dispute that the confession statement of A-1 to A-5 under cover of Ex.P21 and Ex.P22 are hit by Sections 25 and 26 of Indian Evidence Act, but the discovery of material object i.e., MO.10 - knife upon the confession statement of accused comes under Section 27 of Indian Evidence Act.
41. The relevant question before the trial Court was that PW.1 who is the actual eye witness to the alleged incident turned hostile and PWs.5 and 6 who are Village Revenue Officers acted as mediators for arrest of all accused A-1 to A-5 and seizure of robbed cash and other material objects from the possession of accused also turned hostile. In that situation a case of Radhamohan Singh @ Lalsaheb and others Vs. State of Uttar Pradesh , is relevant, whereby the Honble Supreme Court held as under:
It is well settled that the evidence of prosecution witnesses cannot be rejected in toto merely because the prosecution chooses to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent of his version found to be dependable on careful scrutiny thereof.
42. In case of Mahesh Vs. State of Maharashtra , the Honble Supreme Court held as under:
If PW.1, the maker of complaint has chosen not to corroborate his earlier statement, made in the complaint and recorded during the investigation, the conduct of such a witness for not plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer, who had sincerely and honesty conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the court for the sole purpose of shielding and protecting the appellant for the reasons best known to the witness and therefore, no doubt could be given to the appellant for the unbelievable conduct of this witness to the prosecution.
43. It is trite that the evidence of hostile witnesses has to be considered in the light of other witnesses on record. Even though the witnesses PWs.1, 5 and 6 turned hostile, however the learned trial Court has relied upon other material recovered pursuant to their statements.
44. Another issue before the trial Court was that on the basis of confessional statement of A-5 only, the prosecution has arrested A-1 to A-4, and even as per the evidence of PW.1, victim also stated that only four persons have committed the offence, then how the common intention to be proved. On this aspect, it is important to note that joint liability is a concept used by the Courts to punish several persons together. The object is not to spare anybody who is connected to the commission of offence. When several persons are involved in the commission of an offence, the Court may find it difficult to understand the act played by each of the persons. So if certain conditions are fulfilled Court punishes all those persons jointly on that offence.
45. In case of Shaik China Brahmam Vs. State of A.P , wherein it was held that :
When criminal act is done with common intention, all of them are liable in the same manner as principal offender. The true concept of the Sec.34 is that, if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.
46. As discussed above, the motive of the accused is to rob the amount of Rs.8 lakhs from the PW.1. The said motive has been proved by the prosecution and the appellants have failed to rebut the said aspect. Admittedly, A-5, who is clerk in the office of PW.1 and who had information about receiving of cash by PW.1 at Guntur from his vendee towards purchase of cotton, passed on information, A-2 to A-4 who secured two motor bikes and followed PW.1 from Guntur to Macherla. Thereafter, after receipt of phone call from A-5 that PW.1 had cash of Rs.8 lakhs in his possession and left Macherla to Veldurthi on his motor cycle, by securing chilli powder, knife etc., A-1 to A-4 also followed him on the motor cycles and when they reached near Mandadi Village outskirts at the crop fields, they attacked PW.1 and robbed cash amount from him.
47. By seizing the cell phones and motor cycles from the possession of A-1 to A-5 under cover of Ex.P23 mahazar and also collecting the call list of cell phone numbers of A-1 to A-5, which were seized from their possession, collecting mirchi powder from scene of offence, the prosecution has successfully proved the preparation made by A-1 to A-5 to commit this offence with a pre-mediation pre-plan.
48. Moreover in Test Identification Parade, PW.1 has identified A-1 to A-4 out of 20 non-suspects persons. The Magistrate recorded the statement of PW.1 i.e., Ex.P2 prior to conducting Test Identification Parade who stated that he can identify the culprits. Accordingly PW.1 identified A-2 to A-4 successfully.
49. The offence of dacoity is defined under Section 391 of IPC, as follows:
Dacoity : When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit dacoity.
50. When death or grievous hurt caused while committing dacoity then culprits will be punished under Section 397 of IPC which runs as under:
Robbery or dacoity with attempt to cause death or grievous hurt:
If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the offender shall be punished.
51. The grievous stab injury found on PW.1 as per the evidence of PW.13 Medical Officer coupled with Ex.P18 wound certificate. In consonance of said injury, police recovered MO.10-knife from the possession of the accused under seizure mahazar with confession statement of hiding the knife. To the extent of discovery of MO.10-knife, the said confession is valid. So, it is unequivocally established by prosecution that the offenders used MO.10-knife, which is a deadly weapon for committing such ghostly crime resulting grievous stab injury to PW.1. Though there is no direct evidence about dacoity with stabbing, various circumstances projected by the prosecution as discussed about complete the chain of link and established the offence in all probability that the act must have been done by the accused. Moreover, the circumstantial evidence lead by the prosecution is also of a clinching nature.
52. In view of the above discussion and in view of the facts and circumstances of the case, we find no merit in the arguments advanced by learned counsel for the appellants.
53. Finding no merit in the instant appeal, we hereby confirm the conviction and sentence awarded by the Trial Court vide order and judgment dated 29.06.2015 in S.C.No.5/D/2012.
54. Accordingly, the Criminal Appeal is dismissed. Miscellaneous Petitions, if any pending, shall stand closed.
_____________________________ SURESH KUMAR KAIT, J.
______________________________ T. AMARNATH GOUD, J.
Date:05 -10-2018