Andhra HC (Pre-Telangana)
Bommidi Malli Kharjuna Alias Malka And ... vs State Of A.P. on 21 November, 2003
Equivalent citations: 2004(1)ALD(CRI)391, 2004CRILJ2162
JUDGMENT S.R.K. Prasad, J.
1. This appeal arises against the judgment rendered by the Assistant Sessions Judge, Kothagudem, in S.C. No. 73 of 1996 convicting and sentencing the accused to undergo R.I. for a period of seven years each for the offence under Section 395, IPC.
2. The case of the prosecution can be stated in brief as follows :
On the night of 3-7-1995 P.W.1 and his wife, P.W.2 and Madireddy Swarnasree were sleeping in the varandah of the house. At about mid-night P.W. 1 got up and found six persons coming towards his house. They came, tied the hands of P.W.1 and slapped Anjireddy and broke open the door, entered the house and committed theft of 15,000/-rupees cash, a watch as well as the gold ear studs and nose ring of Gampa Anasuya. Similar offence was made in the house of P.W.3. P.W.4 and others. On the strength of a complaint given by P.W. 1, Police registered Ex.P-24 FIR. On 31-10-1995 at about 3.00 p.m. A-1 and A-5 were arrested, and on the strength of the confession said to have been made by A-1 and A-5 other accused were arrested and properties were recovered. P.W. 12 conducted the test identification parade in respect of A-1 to A-6 and thereafter the accused were charge sheeted for the offence under Section 395, IPC. The accused pleaded not guilty for the charge under Section 395, IPC. The prosecution in all examined 14 witnesses, Ext. P-3 to P-6 are the wound certificates. M.Os. 1 to 6 are the properties recovered. Ex.P-24 is the FIR. Ex. P-21 to Ex.P-23 are test identification proceedings. After trial, the lower Court recorded a finding of guilt for the offence under Section 395 against A-1 to A-5 only and convicted and sentenced them to undergo R.I. for a period of seven years each and acquitted A-6 under Section 309(1) of Old Cr.P.C. having found him not guilty. Aggrieved by the same, A-2, A-3 and A-4 have preferred this Criminal appeal.
3. The prosecution has based on the eyewitness account given by the injured and the victims as well as the test identification proceedings. It has also relied upon the alleged confessions made which led to recovery of the properties.
4. The point that arises for consideration is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for the offence under Section 395, IPC.
5. This case arises under old Cr.P.C. since the offence has been committed in an agency area. Unfortunately, the constitutional mandate under Article 50 of the Constitution of India is not implemented to the agency areas. Time and again, this Court has observed that it is most unfortunate thing that the tribals were given a separate kind of justice which is said to be not suitable for the modern, advanced and civilized society. Article 50 of the Constitution of India reads as follows :
Article 50. THE STATE SHALL TAKE STEPS TO SEPARATE THE JUDICIARY FROM THE EXECUTIVE IN THE PUBLIC SERVICES OF THE STATE.
The expression 'the State' in Article 50 has to be construed in the distribute sense as including the Government and Parliament of India and the Government and the Legislature of each State and all local or other authorities within the territory of India or under the control of Government of India.
6. It is clear from Article 50 of Constitution of India, that the mandate has been given by the Constitution to separate the judiciary from the Executive, and see that the people who are tried before the Courts do not have apprehension regarding the injustice likely to be caused from the executive influence and the independence of judiciary is an essential attribute of rule of law. In the entire State, this has been implemented, except in agency areas, which is discriminatory. The rational behind it cannot be appreciated. Time has come to have a look at the procedure that is being followed in respect of tribals and non-tribals, in rendering justice. I am unable to find any rational behind it. If a law is bad for non-tribals, it is equally bad for tribals also, and there shall not be any discrimination in between them. I hope and trust that the executive will take into consideration of the Constitutional mandate and see that tribals also equally be treated and render equal justice. I also state that this matter has to be placed before the Hon'ble the Chief Justice, so that the implementation of constitutional mandate can be pursued and see that it is implemented at an early stage.
7. The duty cast on the appellate Courts in reviewing the evidence has been clearly adumbrated in a decision reported in State of Rajasthan v. Rajaram. 2003 (6) Supreme 11 : (2003 Crl LJ 3901) at para-7 as follows:
Para-7 There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of Madhya Pradesh . The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra. (1973) 3 SCC 793 : (1973 Cri LJ 1783); Ramesh Babulal Doshi v. State of Gujarat, and Jaswant Singh v. State of Haryana, .
It is observed at para-8 as follows :
Para 8 :-- Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
It is also observed at para-9 as follows : Para 9 :-- It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, ; Eradu v. State of Hyderabad, ; Erabhadrappa v. State of Karnataka, AIR 1983 SC 446 : (1983 Cri LJ 846); State of U.P. v. Sukhbasi, ; Balwinder Singh v. State of Punjab, ; Ashok Kumar Chatterjee v. State of M.P., . The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, , it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
It is also observed by Supreme Court in another decision reported in State of Punjab v. Karnail Singh, 2003 (5) Supreme 508 : (2003 Cri LJ 3892) at para 12 as follows :
Para 12 :-- Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See : Gurbachan Singh v. Satpal Singh, . Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava, ). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err. it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh v. State (Delhi Admn.), ). Vague hunches cannot take place of judicial evaluation. "A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC 315) quoted in State of U.P. v. Anil Singh, . Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See : Shivaji Sahebrao Bobade v. State of Maharashtra, ; State of U.P. v. Krishna Gopal, ; and Gangadhar Behera v. State of Orissa, (2002) 7 Supreme 276 : (2003 Cri LJ 41)).
It is also observed by Supreme Court in another decision reported in Sunil Kumar v. State Government of NCT of Delhi, (2003) 7 Supreme 519 : (2004 Cri LJ 819) at para 9 as follows :
Para 9 : This Court held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872. But if there are doubts about the testimony the Courts will insist for corroboration. It is for the Court to act upon the testimony of witnesses. It is not the number, the quantity, but the guilty that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands are edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
It is also observed at para 10 as follows : Para 10 : Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in Court took place years after the occurrence the evidence does not become suspect. Necessarily, there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the Court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the Court has to consider whether the witness was telling the truth or not.
8. Coming to the facts of this case, the lower Court has placed reliance on the test identification proceedings conducted by P.W. 12. It is well settled law that the identification proceedings cannot be a substantive evidence. It can be used only for corroboration or contradiction purpose. It is clear from the evidence of P.W. 12 that he has utilized the services of a jail constable to secure non-suspects, and the learned Magistrate has admitted the same in his evidence. It is categorically stated in Rule 34 of Criminal Rules of Practice and Circular Orders, 1990 that each witness shall be fetched by a peon separately. The witness shall be introduced one by one and on leaving shall not be allowed to communicate with witness still waiting to see the persons paraded. Hence, using of a jail constable is certainly objectionable and it goes contra to the Rule 34 of Criminal Rules of Practice and Circular Orders. If the proceedings, and the evidence is judged together, it is clear that the learned Magistrate has violated Rule 34(iii)(c) of Criminal Rules of Practice and Circular Orders, 1990. The manner of conducting the test identification proceedings have been clearly adumbrated in Rule 34 and failure to follow the same meticulously will make the proceedings invalid and the Court has to totally ignore the said proceedings. The Court has to suspect the manner of conduction. It is also clear that simply because the Magistrate conducts the identification parade, does not lead to the conclusion that it has to be believed. This Court has to scrutinize the evidence and the proceedings conducted by the Magistrate, and to see whether such proceedings are in accordance with Rule 34 of Criminal Rules of Practice and Circular Orders, 1990. It is clear that he has violated the Rule 34 and failed to follow the procedure mentioned under Rule 34 of Criminal Rules of Practice and Circular Orders, 1990 and hence, it does not carry much weight. Unfortunately, the test identification proceedings are conducted more than five months from the date of offence. The FIR shows that six persons have committed the offence, but their descriptive particulars are not mentioned in the FIR. The wife of P.W. 1 is not examined. P.W. 1 is Gampa Narayana Reddy. According to him, all the accused came and woke him up. Three of them came to him while the other three went inside the house. He spoke about the identification of the accused before the Court and before the Sub Jail. According to P.W. 2 G. Narsi Reddy, who was said to be beaten and tied along with P.W. 1 he saw the accused at the police station who participated in the identification proceedings and identified the accused. He saw the accused one year after the incident in the police station. P.W. 3 is Mandava Mangamma. She is unable to identify the accused before the Court, but she has stated that she was beaten by somebody. She has also stated that A-1 and A-5 attacked their house on that day and culprits went away. She lost a ring with the image of Lord Venkateswara. According to her, she did not state about the appearance or the particulars of the culprits in her 161 Cr. P.C. statement. The person from whom the jewels were taken is not examined. The entire thing is based on circumstantial evidence in this case. Unfortunately, the Circle Inspector, A. Damodar Rao (LW-19) who investigated the case died. He is said to have recovered the articles from the accused. The mediators who are said to be present at the time of recovery of the articles have turned hostile. No attempt is made to prove the investigation and the recovery proceedings by identifying the handwriting and signature of the Circle Inspector. It is not the case of the prosecution that the Sub-Inspector was present along with the C.I. assisting him in his investigation. In the absence of proof of handwriting of C.I. regarding the mediatornama, it can be safely taken that recovery is not proved as per law before the lower Court.
9. Coming to the alleged confession said to have been made, the mediators turned hostile. The entire confession statements have been marked which is totally against the provisions of Section 27 of Indian Evidence Act. Time and again this Court has observed that the Courts are not following the procedure mentioned under Section 27 of the Evidence Act and totally ignoring the Section. Hence, the recovery is not established as per law. The material has to be ignored for want of legal proof and for not following the procedure under Section 27 of Indian Evidence Act. The only evidence available on record is the evidence of P.Ws. 1 and 2. Is it believable ? Obviously, the accused are strangers. It is well nigh impossible to anybody to identify them. Moreover, the link in between the accused and eye-witness account is missing namely, recovery of the property. Obviously, a male cannot be expected to identify the nose rings, and ear studs. The person who can identify those things is only the wife of P.W. 1 who is the victim from whom they are taken away. It is also not believable that cash of Rs. 10,000/-can be identified as belonging to P.W. 1 without there being any method of identifying the same. It is also improbable for any person to keep the cash intact after theft. No identification of properties have been conducted as required under Rule 35 of Criminal Rules of Practice and Circular Orders, 1990. If the cumulative effect of all these circumstances are taken into consideration, it does not indicate that the accused have committed the offence and property was recovered. This is only suspicion in this case and it has culminated into proof. It is rightly contended by the accused counsel that the accused are entitled to be given benefit of doubt. This is one such case. I also state that failure to follow Rule 34 by the learned Magistrate in conducting the test identification proceedings and the contradictory evidence relating to recovery of properties, placed by the prosecution, and also conduction of identification parade after a lapse of five months and non-examination of wife of P.W. 1 are some of the circumstances, make me disbelieve the evidence of P.Ws. 1 and 2. I also state that failure to give descriptive particulars of accused in the FIR also shows any amount of doubt about the identification made by P.Ws. 1 and 2. If really they have identified the accused, they could have mentioned the same in the FIR. For all the foregoing reasons, I am of considered view that that the accused have to be given benefit of doubt in this case, as the suspicion has not culminated into proof and they are liable to be acquitted.
10. In the result, the conviction and sentence awarded against the accused by the Asst, Sessions Judge, Kothagudem, in S.C. No. 73 of 1996 is set aside. Accused are acquitted of the offence under Section 395, IPC. The order of the learned Judge, in respect of the property shall stand confirmed. The Criminal Appeal is allowed accordingly.