Andhra Pradesh High Court - Amravati
Shaik Riyaz vs State Of Ap on 10 May, 2024
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
APHC010211722021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3350]
(Special Original Jurisdiction)
FRIDAY, THE TENTH DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
RT No.3/2021 and Crl.A.Nos.158, 159, 162, 166, 184, 194, 214, 252, 260
and 354 of 2021
Between:
The State Of Andhra Pradesh ...PETITIONER
AND
Mohammad Abdul Sammad Munna and Others ...RESPONDENT(S)
COMMON JUDGMENT:(Per Hon'ble Sri Justice U. Durga Prasad Rao) The Referred Trials 2, 3 & 4/2021 wherein judgments are pronounced today, present chilling facts of diabolical and grotesque manner of killing the trailer drivers and cleaners by the ruthless gang of dacoits while they were transporting iron load on the highway between Ongole-Nellore Districts in Andhra Pradesh.
In S.C.No.91/2010, learned VIII Additional District & Sessions Judge, Ongole in his judgment dated 18.05.2021 convicted A1 to A15 for different offences and sentenced them with different punishments as narrated in the following table. Since among them, A1 to A9 are awarded death punishment ::2::
for the offences under Section 396 IPC under two counts, learned Judge submitted the entire case proceedings along with his judgment to this High Court under Section 366 Cr.P.C. for confirmation of death sentence and the Registry has registered the said referred proceedings as a Referred Trial No.3/2021 and listed before us. That apart, challenging the conviction and sentence, the accused have also preferred different Criminal Appeals as mentioned in the table below and those criminal appeals are also listed before us.
TABLE
Accus Name of Charges Convicted and punished for the Referred Criminal
ed No. Accused / Framed by the offences Trial Appeal filed
Resident of Trial Court (RT by accused
No.3 )
(1) (2) (3) (4) (5) (6)
A1 Mohammad i.396 r/w 120B i. Imprisonment for life for the
Abdul Sammad of IPC; offence U/s 396 r/w 120B IPC
@ Munna
Ongole ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
RT- Crl.A.No.166
iii.400 IPC; iii. Imprisonment for life for the 3/2021 /21
offence U/s 400 IPC
iv.201 IPC iv.RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A2 Bathala Salmon i.396 r/w 120B i.Imprisonment for life for the
Inamanamellur of IPC; offence U/s 396 r/w 120B IPC
Village
ii.396 IPC; ii.DEATH Punishment for the
Crl.A.No.162
offence U/s 396 IPC UNDER TWO -do-
/21
COUNTS
iii.400 IPC; iii. Imprisonment for life for the
offence U/s 400 IPC
::3::
Accus Name of Charges Convicted and punished for the Referred Criminal
ed No. Accused / Framed by the offences Trial Appeal filed
Resident of Trial Court (RT by accused
No.3 )
(1) (2) (3) (4) (5) (6)
iv.201 IPC iv.RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A3 Yepuri Chinna i.396 r/w 120B i.Imprisonment for life for the
Veeraswamy of IPC; offence U/s 396 r/w 120B IPC
Reddypalem
Village ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
Crl.A.No.184
-do-
iii.400 IPC; iii. Imprisonment for life for the /21
offence U/s 400 IPC
iv.RI for 7 years and fine of
iv.201 IPC Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A4 Mohammad i.396 r/w 120B i.Imprisonment for life for the
Jamaluddin @ of IPC; offence U/s 396 r/w 120B IPC
Jamal
Bengalore ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
iii.400 IPC; iii. Imprisonment for life for the
offence U/s 400 IPC
iv.201 IPC; iv. RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the Crl.A.No.184
-do-
offence U/s 201 IPC /21
v.412 IPC; v. Imprisonment for life for the
offence U/s 412 IPC
vi.402 IPC; vi. RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the
offence U/s 402 IPC
vii.414 IPC; vii. RI for 3 years for the offence U/s
414 IPC
A5 Shaik Dada i.396 r/w 120B i.Imprisonment for life for the
Peer @ Gani, of IPC; offence U/s 396 r/w 120B IPC
Hindupur
ii.DEATH Punishment for the Crl.A.No.184
ii.396 IPC; -do-
offence U/s 396 IPC UNDER TWO /21
COUNTS
::4::
Accus Name of Charges Convicted and punished for the Referred Criminal
ed No. Accused / Framed by the offences Trial Appeal filed
Resident of Trial Court (RT by accused
No.3 )
(1) (2) (3) (4) (5) (6)
iii.400 IPC; iii. Imprisonment for life for the
offence U/s 400 IPC
iv.201 IPC iv.RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A6 Rachamalla i.396 r/w 120B i.Imprisonment for life for the
Sampath, of IPC; offence U/s 396 r/w 120B IPC
Kothasayampet
ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
Crl.A.No.252
-do-
iii.400 IPC; iii. Imprisonment for life for the /21
offence U/s 400 IPC
iv.RI for 7 years and fine of
iv.201 IPC Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A7 Gundu Bhanu i.396 r/w 120B i.Imprisonment for life for the
Prakash @ of IPC; offence U/s 396 r/w 120B IPC
Bhanu @
Gajani ii.396 IPC; ii.DEATH Punishment for the
Kothasayampet offence U/s 396 IPC UNDER TWO
COUNTS
Crl.A.No.158
-do-
iii.400 IPC; iii. Imprisonment for life for the /21
offence U/s 400 IPC
iv.RI for 7 years and fine of
iv.201 IPC Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A8 Shaik Riyaz, i.396 r/w 120B i.Imprisonment for life for the
Ongole of IPC; offence U/s 396 r/w 120B IPC
ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
iii. Imprisonment for life for the Crl.A.No.194
-do-
iii.400 IPC; offence U/s 400 IPC /21
iv.RI for 7 years and fine of
iv.201 IPC Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
::5::
Accus Name of Charges Convicted and punished for the Referred Criminal
ed No. Accused / Framed by the offences Trial Appeal filed
Resident of Trial Court (RT by accused
No.3 )
(1) (2) (3) (4) (5) (6)
A9 Shaik Hafeez, i.396 r/w 120B i.Imprisonment for life for the
Ongole of IPC; offence U/s 396 r/w 120B IPC
ii.396 IPC; ii.DEATH Punishment for the
offence U/s 396 IPC UNDER TWO
COUNTS
Crl.A.No.166
-do-
/21
iii.400 IPC; iii. Imprisonment for life for the
offence U/s 400 IPC
iv.201 IPC iv.RI for 7 years and fine of
Rs.5,000/- IDSI 3 months for the
offence U/s 201 IPC
A10 Yepuri Pedda i.396 r/w 120B i. Imprisonment for life for the
Veeraswamy of IPC; offence U/s 396 r/w 120B IPC
Crl.A.No.184
Reddypalem -do-
/21
Village ii.400 IPC; ii. Imprisonment for life for the
offence U/s 400 IPC
A11 Gundeboina i.396 r/w 120B i.Imprisonment for life for the
Sridhar, of IPC; offence U/s 396 r/w 120B IPC
Crl.A.No.159
Kothasayampet -do-
/2021
ii.400 IPC; ii. Imprisonment for life for the
offence U/s 400 IPC
A12 Syed i.396 r/w 120B i.Imprisonment for life for the
Hidayatulla @ of IPC; offence U/s 396 r/w 120B IPC
Babu Crl.A.No.260
-do-
Donakonda ii.400 IPC; ii.Imprisonment for life for the /21
offence U/s 400 IPC
A13 Shaik i.396 r/w 120B i.Imprisonment for life for the
Rahamathulla, of IPC; offence U/s 396 r/w 120B IPC
Ongole
ii.400 IPC; ii.Imprisonment for life for the
Crl.A.No.194
offence U/s 400 IPC -do-
/21
iii.412 IPC iii. Imprisonment for life for the
offence U/s 412 IPC
A14 Arla i.396 r/w 120B i.Imprisonment for life for the
Gangadhara of IPC; offence U/s 396 r/w 120B IPC
Rao @ Crl.A.No.354
-do-
Gangadhar, ii.400 IPC; ii.Imprisonment for life for the /21
Ongole offence U/s 400 IPC
A15 Shaik Kamal i.396 r/w 120B i.Imprisonment for life for the
Saheb @ Kamal of IPC; offence U/s 396 r/w 120B IPC Crl.A.No.214
@ Kamaluddin, -do- /21
Ongole ii.400 IPC; ii.Imprisonment for life for the
offence U/s 400 IPC
::6::
II. PROSECUTION CASE:-
A1, A8, A9, A13 to A15 are residents of Ongole; A12 is a resident of Donakonda; A4 is a resident of Bangalore; A2 and A3 are residents of Inamanamelluru of Maddipadu Mandal; A10 is the resident of Pata Malapalli village; A7 and A11 are the residents of Kottasayam Peta of Hanumakonda Mandal; A5 is a resident of Hindupur, Anantapur District and some of them are inter-related and all of them are known to each other, particularly A1, who is having criminal history being involved in several criminal cases. For instance, A8 and A12 are brothers-in-law of A1, and A13 is the father of A8. All the accused were closely associated with each other and they intended to earn easy money by committing highway dacoitees of iron load trailers and by selling the iron.
(a) It is alleged, A1 took rooms in Taste Hotel, Ongole during the months of July - August, 2008 and had a criminal conspiracy in the hotel rooms with other accused and hatched up a plan to commit dacoitees on highway by killing the crew of trailers moving with load of iron and sell the iron and get benefit as its cost was much. The hotel staff witnessed the staying of A1 in their hotel having the negotiations with other accused.
(b) In pursuance of the criminal conspiracy on the night of 31.07.2008 at about 02:00 Hours A1 to A9 went towards Maddipadu on NH-5 in a MO.22 -
::7::
Verna car of A1 and Unicorn Motorcycle of A2 and Bajaj Platinum Motorcycle of A3 and noticed a trailer lorry No.KA 08 B 4499 in front of NIMRA College on the high way road facing towards Maddipadu near Yedugundlapadu Village and observed the driver and cleaner were sleeping on the iron load trailer lorry. Then on the instructions of A1, A2 to A9 went and woke up the driver and cleaner saying that Police Officials were calling for inspection of their records of the lorry and while the drivers were coming towards Verna car, all the accused strangulated D1 and D2 with coir ropes by tying around their necks and thus committed murder of D1 and D2. A6 took the MO.8 - gold ring of the D1. Then all the accused packed two dead bodies in separate gunny bags and kept in the dickey of Verna car. A4 and A9 took the trailer lorry with a load of iron angulars to the shop of A8 and A13 and unloaded the angulars with the help of PWs.23, 25 and 30. PW.29 witnessed the unloading and loading of iron in two lorries after one week. LW.14- Shaik Kalam cut the big angulars into small pieces with cutter in the shop of A8. PW.27 and 28 have witnessed the trailer lorry with iron angulars, Verna car, Unicorn motorcycle in front of NIMRA Engineering College on the night of 31-07-2008. While so, A2, A3 and A7 went on Unicorn motorcycle and dug a pit by the side of Gundlakamma river near Maddiralapadu village during the night. A3 gave information by phone about the digging of pit on the northern ::8::
side of Gundlakamma river at Chedalavada Chapta. Later A1, A6 and A7 took the dead bodies in the Verna car and buried the same in the pit to screen the evidence of murder. Later, on the instructions of the A1, A4 and A9 took the empty trailer lorry towards Miryalaguda side and abandoned. A8 took the tape recorder from the trailer cabin and A3 took the utensils and stove and iron roti pan from the cabin of the trailer before dispatching the lorry from Ongole. A8 and A13 sold the stolen property to Maruti Ispat Company, Isnapur of Medak District.
(c) While so, PW.45 - the I.O. arrested A1, A9 and A12 on 10.11.2008 in connection with the Crime No.356/2008 of Ongole Taluka Police Station (RT.No.4/2021) in the presence of mediators P.W.31 and LW.35 - Kanakala Sanjeeva Rao. On 16-11-2008, the I.O. took A1, A9 and A12 to Police custody and the accused have shown the scene of offence in front of NIMRA Engineering College in the presence of mediators P.W.31 and LW.35 and in that regard Ex.P65 - mediator report was prepared by the I.O. On 17.11.2008, PW.45 - the I.O. forwarded the copies of the confessional statements of A1, A9 and A12 and scene of offence observation reports along with rough sketch of the scene to Maddipadu Police Station on point of jurisdiction for further action. Basing on the same, PW.35 - Sub-Inspector of Police, Maddipadu Police Station registered a case in Crime No.140/2008 under sections 302, ::9::
379, 201 read with 34 IPC of Maddipadu Police Station and submitted express F.I.R. to all officers concerned. PW.42 - Inspector of Police, Ongole Rural Police Station took up investigation and proceeded to Sitrampuram Coastalu and visited the godown of PW.17 Pidatalu Rambhupal Reddy and there examined PW.18 and LW.25 - Duddela Venkata Reddy who were the watchmen of the godown.
(d) On 15.11.2008, PW.45 arrested A6 and A11 in the presence of PW.31 and LW.35 - K. Sanjeeva Rao and they admitted their guilt in different offences including the present case which was recorded under Ex.P64 - confession-cum-mediator report. The I.O seized MO.8 - gold ring from A6 and some other material objects from the possession of A11 in different cases.
(e) On 21-11-2008, PW.42 - the I.O./Inspector of Police, Maddipadu Police Station arrested A7 and A10 at Timmannapalem cross road in the presence of mediators i.e., PW.20 and LW.36 - Pasupuleti Venkata Swamy.
A7 and A10 confessed their guilt in different offences including the present under the cover of Ex.P31 - Mediator-cum-Confessional report.
(f) On 26-11-2008 PW.42 - the I.O. arrested A2 through Trovagunta, Autonagar in the presence of mediators i.e., PW.20 and LW.38 Paleti Venkateswarlu. A2 admitted his guilt in different offences including the ::10::
present case. A2 admitted that he would show the burial place of D1 and D2 near Gundlakamma River. His confession-cum-mediator report was recorded under Ex.P32. A2 lead the Police party and mediators to the northern side of Gundlakamma river and showed the burial place to them. As it was already dark, exhumation could not be done but a Ex.P33 - Mahazarnama was drafted to that effect. On 27.11.2008, PW.42 gave requisition to PW.12 - the Tahsildar-cum-Executive Magistrate of Naguluppalapadu for conducting exhummation of the dead bodies. Accordingly, PW.12 went to Maddipadu Police Station and A2 lead the Police party, PW.12 and the relatives of D1 and D2 to Gundlakamma river. PW.12 recorded the statement of A2 and also the statements of PW.8 and LW.29 - Guthula Mari raju. A2 showed the burial place of D1 and D2 to PW.12 Police and other mediators. Then on the instructions of PW.12 pit was dug where two gunny bags were found and on opening the same, two dead bodies were found which were identified by PW.8 and LW.29-Guthula Mari raju by observing their clothes. PW.12 conducted inquest over the dead bodies of D1 and D2 in the presence of panchayatdars i.e., PW.9, LW.42-Inamanamellur Anjaneyulu, LW.43 - Valleti Venkata Rangayya and drafted Ex.P10 and 11-inquest reports. PW.42 - the I.O seized MOs.5 to 7 - clothes of D1 and MOs.9 to 12 - clothes of D2 and MOs.13 and 14 - coir ropes from the necks of the D1 and D2 during the ::11::
inquest. Thereafter, PW.12 gave requisition to PW.32 Dr. M.Ramachandra Rao who conducted Postmortem examination over the dead bodies of D1 and D2 and noted that the cause of death was due to Asphyxia due to pressure, due to pressure on the neck and issued Ex.P.70 and 71 -Postmortem certificates. PW.32 preserved the skull and lung bones of D1 and D2 during PM examination for DNA analysis.
(g) On 27.11.2008 PW.45 - the I.O. arrested A3 in the presence of PW.22 and LW.40 - Vaka Sankar Reddy and recorded Ex.P35- confession-
cum-mediator report. Basing on his confession statement, A3 led the police and the mediators i.e., PW.22 and LW.40 to his house and showed them MOs.2 to 4 which were recovered by PW.45 under Ex.P36 - mediator report.
(h) On 03.12.2008 PW.42 - the I.O arrested A5 in the presence of the mediators - PW.19 and LW.45 - V. Ramanaiah and recorded Ex.P24 - confession-cum-mediator report and seized MO.17 - TATA Indica car which is a stolen property in Crime No.109/2008 of Nalgonda II Town PS and which is said to be used in different crimes by the present accused.
(i) On 03.12.2008 PW.45 - the I.O arrested A8 in the presence of PW.31 and LW.35 - K. Sanjeeva Rao and he confessed his guilt in different crimes including the present case. Ex.P67 - confession-cum-mediator report was prepared. Basing on his confession, A8 led the police and mediators to ::12::
his house and produced MO.1 - tape recorder and other material objects relating to different cases. MO.1 was seized by the I.O in the presence of mediators under the cover of Ex.P.68 - mediator report.
(j) On 05.12.2008 PW.45 arrested A14 and A15 in the presence of PW.31 and LW.35 - L. Sanjeeva Rao and they admitted their guilt in different offences including in the present offence and Ex.P69- confession-cum-
mediator report was prepared.
(k) On 12.02.2009 PW.45- the I.O along with mediators PW.19 and LW.45 proceeded to Maruthi Ispat Steel Factory, Near Pathan Cheruvu, Hyderabad and came to know through PW.40 is the owner of the said factory that A8 and A13 sold 28 tons of stolen iron angulars to him for Rs.6,00,000/- and he in turn sold away the same to third parties and realized the sale proceeds of Rs.8,00,000/- under the cover of Ex.P30 - mediator report. The said amount is kept in fixed deposited vide Ex.P.137-FDR.
(l) On 13.02.2014 PW.41- the I.O arrested A4 and recorded his confession in the presence of the mediators PW.36 and LW.59 - K.V. Prasad under Ex.P92- confession-cum-mediator report.
(m) A13 who was absconding obtained anticipatory bail from the High Court in Crl.P.No.418/2010 dt: 01.02.2010.
::13::
(n) After completion of investigation, PW.45 - I.O filed the charge-
sheet against the accused.
(o) The Judicial Magistrate of First Class, Special Mobile Court, Ongole took cognizance against A1 to A15 for the offences U/s 120B, 396, 400, 201, 412, 402, and 414 IPC and committed to sessions Court. The Principal District and Sessions Judge, Ongole registered the case as S.C.No.91/2010 and made over to VIII Additional District and Sessions Judge, Ongole.
III. CHARGES:
The trial Court, on appearance of the accused, framed charges:
(i) U/s 396 r/w 120B against A1 to A15
(ii) U/s 400 IPC against A1 to A15
(iii) U/s 396 against A1 to A9
(iv) U/s 201 of IPC against A1 to A9
(v) U/s 412 of IPC against A4 and A13
(vi) U/s 402 and 414 IPC against A4
The accused denied the charges and claimed for trial. During trial, on behalf of prosecution, PWs 1 to 45 were examined; exhibits P1 to P140 were marked and MOs 1 to 24 were exhibited.
On behalf of accused exhibits D1 was marked.
After conducting 313 Cr.P.C examination, the trial Court heard the arguments of Public Prosecutor and the defence advocates ::14::
IV. ARGUMENTS OF PROSECUTION AND DEFENCE BEFORE TRIAL COURT:
While the public prosecutor argued that with the voluminous oral, documentary and physical evidence the prosecution established the guilt of all the accused, the defence traversed it with the following main arguments:
It is contended on behalf of the appellants that when the alleged offence took place on 31.07.2008, the FIR was belatedly registered on 17.11.2008 basing on the attested copies of confessional statement and recovery panchanama in another case forwarded by PW.45 and prosecution did not explain the delay and hence its story cannot be relied upon.
Secondly, it is contended that the prosecution did not file CC TV footage of the two hotels to prove the alleged conspiracy among the accused. It is further contended that the IO has not secured the call data particulars of the accused and produced before Court to prove the conspiracy and due to withholding the best possible evidence adverse inference has to be drawn against prosecution and conspiracy theory shall be rejected.
Thirdly, it is contended that the ropes which were allegedly used by the accused to strangulate the D1 and D2 have not been sent to FSL for examination.
::15::
Fourthly, regarding the exhumation proceedings, it is contended that only edited versions of videos covering the exhumation proceedings were filed to prejudice the mind of the Court against the accused and hence such evidence shall be discarded.
Fifthly, it is contended that the DNA result could not match with the dead bodies of the deceased and therefore the prosecution failed to connect the dead bodies to the driver and the cleaner.
Sixthly, it is argued that the hard discs from the computer systems of Toll Plazas were not seized and produced except the receipts and hence the information from the Toll Plazas cannot be relied upon .
Seventhly, it is argued that all the mediatornamas-cum-confessional statements were not prepared at the respective places but they were leisurely prepared at the police station and signatures of mediators who are public servants and who will readily oblige police have been obtained at the police station. Hence the mediator reports and confessional statements have no legal sanctity.
V. JUDGMENT OF TRIAL COURT:
(1) The trial Court set up the following points for determination:
(i) Whether the prosecution is able to prove that there is prior conspiracy in between Accused Nos. 1 to 15 to commit the ::16::
offence alleged in this case, which is punishable under section 396 r/w 120-B of I.P.C ?
(ii) Whether the prosecution is able to prove the guilt of A1 to A9 for the offence under section 396 of I.P.C, and whether the offence U/sec.396 of I.P.C was committed by A1 to A9 in pursuance of conspiracy between A1 to A9 ?
(iii) Whether, A1 to A9 committed any act to screen the evidence of the commission of offence U/sec.396 of I.P.C, which is punishable offence under section 201 of I.P.C ?
(iv) Whether the prosecution is able to prove that all the Accused i.e., A1 to A15 are being members of Gang of Dacoits which is punishable under section 400 of I.P.C ?
(v) Whether prosecution is able to prove the guilt of the Accused No.4 under section 414 of I.P.C ?
(vi) Whether prosecution is able to prove the guilt of the Accused No.4 under section 402 of I.P.C ?
(2) Having recognized that the prosecution case depends on circumstantial evidence and after enumerating the principles laid down by the Hon‟ble Apex Court for evaluation of circumstantial evidence, the trial Court embarked upon to determine the above points.
(3) Observations and Findings of the trial Court:
(a) Basing on the evidence of PW.1- the manager and PW.2 -
the owner of the trailer lorry coupled with Ex.P7 to P9 the trial Court observed that the lorry bearing No. KA08 B 4499 along with its drivers i.e., D1 - Guduru Syam Babu and D2- Guthula Vinod Kumar was carrying iron angulars from Chennai to Kakinada and as per the evidence of PW.6 , PW7 and PW.11 the said lorry crossed Sunnambatti toll plaza and Tanguturu toll plaza on 31.07.2008 but did ::17::
not cross the Bollapalli toll plaza and ultimately the empty lorry was found at Miryalaguda and basing on Ex.P1 - report dt: 05.08.2008 of PW.1 crime No.123/2008 was registered U/s 408 IPC at Miryalaguda Rural PS and further, on the confession of A2, the dead bodies of D1 and D2 were exhumed nearby Gundlakamma river and they were identified by their relatives and hence the accused have committed dacoity of the trailer lorry by committing murder of D1 and D2.
(b) The trial Court basing on the evidence of PWs.15 and 24 coupled with Ex.P18 to P20 and Ex.P.40 to P52 observed that A1 stayed in Taste Hotel during July-August, 2008 and other accused used to visit and meet him in the hotel.
(c) Basing on the evidence of PW.18 (PW.26 in RT No.2/2021), and that of I.O, the trial Court observed that A1 took the godown of PW.17 (PW.25 in RT No.2/2021) for lease to keep the iron loads which were committed theft by them.
(d) Basing on the evidence of PWs.37 and 40 the trial Court held that PW.40 purchased 28 tones of iron angular relating to this case from A8 and A13 and thus the stolen iron was sold to them. On these and other observations the trial Court arrived at the following findings.
(i) On the instigation A8 and A13, A1 to A7, A9 to A12, A14 and A15 met in Taste Hotel and Narayana Palace and conspired to commit of iron loads from the lorries on the national highway even by killing the driver and cleaner.
(ii) A1 to A9 committed murder of D1 and D2 the drive and the cleaner of the trailer lorry bearing No. KA 08 B 4499 in furtherance of their criminal conspiracy.
(iii) After killing D1 and D2, the A1 to A9 kept the dead bodies in gunny bags and buried at Gundlakamma river bank and thereafter A4 and A9 took the empty trailer lorry and left at Miryalaguda and thus they caused the evidence of ::18::
commission of offence to disappear with an intention of screening the accused from legal punishment.
(iv) Al to A15 used to habitually commit dacoity as they are involved in SC No.73/2010 and SC No.595/2010.
The trial Court accordingly convicted and sentenced the accused as shown in the table supra.
Hence, the referred trial and the connected criminal appeals. VI. Heard arguments of following learned counsel for appellants in Criminal Appeal Nos. 158, 159, 162, 166, 184, 194, 214, 252, 260 and 354 of 2021 of 2021 and in RT No.3/2021 and Sri Y.Nagi Reddy, learned State Public Prosecutor representing the State.
Learned Senior Counsel Sri P. Veera Reddy, representing Sodum Anvesha, learned counsel for Appellant/A11 in Crl.A. No.159/2021; for Appellant /A4 in Crl.A.No.184/2021; for appellants/A8 and A13 in Crl.A.No.194/2021 Learned Senior Counsel Sri B.N.V.Hanumantha Rao for Smt. Sridevi Jampani, learned counsel for Appellants/A1 & A9 in Crl.A.No.166/2021 Learned Senior Counsel Sri Posani Venkateswarlu for Sri Venkateswarlu Sanishetty, learned counsel for Appellant/A15 in Crl.A.No.214/2021.
Sri Srinivasa Rao Narra, learned counsel for Appellant/A6 in Crl.A.No.252/2021.
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Learned Senior Counsel Sri Pappu Nageswar Rao for Sri P.Bhaskar, learned counsel for Appellants/A3 & A10 in Crl.A.No.184/2021. Learned Senior Counsel Sri B.N.V.Hanumantha Rao for Sri R.Sameer Ahmed, learned counsel for Appellant/A5 in Crl.A.No.184/2021. Sri Pardhasaradhi A.V., learned counsel for Appellant/A2 in Crl.A.No.162/2021 Sri Jada Sravan Kumar, learned counsel for Appellant/A12 in Crl.A.No.260/2021 Sri Thandava Yogesh, learned counsel for Appellant/A14 in Crl.A.No.354/2021.
Sri Abhinav Krishna Uppaluru, learned counsel for Appellant/A7 in Crl.A.No.158/2021.
VII. POWERS AND RESPONSIBILITIES OF HIGH COURT WHEN A DEATH SENTENCE IS SUBMITTED FOR CONFIRMATION BY A COURT OF SESSION:
This aspect has been dealt with and vividly explicated by the Apex Court in Munna Pandey v. State of Bihar1. Referring to Sections 366, 367 & 368 of Chapter XXVIII and Section 386 & 391 of Chapter XXIX of Cr.P.C. a Full Bench of Apex Court speaking through Hon‟ble Justice J.B.Pardiwala made the following observations:
i) Under Section 366 when a Court of Session passes sentence of death, the proceedings must be submitted to the High Court and the sentence of death is not to be executed unless it is confirmed by the High Court.
1
MANU/SC/0965/2023=AIR2023SC5709 ::20::
ii) Section 367 lays down the power of High Court to direct further enquiry to be made or additional evidence to be taken upon any point bearing upon the guilt or innocence of the convict.
iii) Section 368 lays down the power of High Court to confirm the sentence so imposed or annul the conviction. One of the powers that can be exercised under Section 368(c) is to "acquit the accused person". Pertinently, the power to acquit the person can be exercised by the High Court even without there being any substantive appeal on the part of accused challenging his conviction. To that extent, the proceedings under Chapter XXVIII of Cr.P.C. is a proceeding in continuation of the trial. The scope of the chapter is wider.
iv) Chapter XXIX of Cr.P.C. deals with appeals. Section 391 also entitles the appellate court to take further evidence or direct such further evidence to be taken.
v) Section 386 enumerates power of the appellate court which inter alia includes the power to "reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or committed for trial". The powers of the appellate court equally wide.
vi) In the event of submission of death sentence for confirmation by a court of session and a Criminal Appeal being filed by the convict, the High Court exercises powers both under Chapter XXVIII and XXIX of Cr.P.C.
vii) Ordinarily, in a Criminal Appeal against conviction, the appellate court under Section 384 Cr.P.C. can dismiss the appeal summarily, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision of the trial Court. It is not necessary for the appellat court to examine the entire record for the purpose of arriving ::21::
at an independent decision of its own whether the conviction of the appellant is fully justified.
viii) The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under Section 366 Cr.P.C. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with Section 367 & 368 respectively of Cr.P.C.
which make it clear that the duty of the High Court in dealing with reference, is not only to see whether the order passed by the Sessions Judge is correct, but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. In disposing of such an appeal, the High Court should keep in view its duty under Section 367 Cr.P.C. and consequently, the Court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and sentence of death should be confirmed (emphasis supplied). Keeping the above observations in view, we shall proceed to decide the reference and criminal appeals.
VIII. POINTS FOR CONSIDERATION IN THE APPEAL:
1. This is a case entirely based on circumstantial evidence. In a case of this nature, the Hon‟ble Apex Court in the following decisions, laid down certain principles as to how the prosecution has to establish its case:
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(1) Sharad Birdhi Chand Sarda vs State Of Maharashtra2 (2) Shailendra Rajdev Pasvan v. State of Gujarat3 (3) Laxman Prasad V. State of Madhya Pradesh4 The following are the golden principles for establishing the criminal case based on circumstantial evidence.
(i) The circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established.
(ii) Those circumstances should be of definite tendency unerringly pointing towards the guilt of accused.
(iii) That the circumstances taken cumulatively should be formed into a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by an accused and those circumstances should be incapable of explanation on any hypothesis other than that of the guilty of accused and inconsistent with his innocence.
2. From the above jurisprudence, the points that emerge for consideration in the appeal are:
(1) Whether the prosecution proved the following circumstances to draw an inference of guilt of the accused and those circumstances formed into a complete chain to prove invariably the guilt of the accused?
(a) Criminal conspiracy hatched by accused in Narayana Palace and Tasty Hotel, Ongole to commit dacoity of Iron load vehicles on the Highway.
2
1984 (4) SCC 116 3 (2020) 14 SCC 750 4 (2023) 6 SCC 399 ::23::
(b) Missing of the trailer lorry bearing No.KA 08 B 4499 and commission of its dacoity along with iron load by accused
(c) Killing of driver and cleaner and burying dead bodies by accused and their recovery by exhumation:
(d) Storage of iron angulars in the shop of A8 and A13 and later selling them to PW.40 by the accused.
(e) Taking of godown of PW.17 on lease by A1 with the connivance of A14 for storing the iron load committed theft in different cases and concealing MO.22 - Verna car used in committing series of offences including the present one.
(f) Abandonment of the trailer lorry by A4 & A9 on the instructions of A1 at Miryalaguda-
Krishnapuram road and its recovery by police.
(g) Recoveries basing on the confessions of different accused.
(2) If guilt of accused is proved by establishing the above circumstances, which sections of law will attract their offences?
(3) Whether the sentence imposed by the trial Court against the accused for different offences is legally sustainable?
(4) To what relief?
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IX. ANALYSIS
1. Point No.1: As mentioned supra, the prosecution projected certain suspicious circumstances which, for convenient reference listed as (a) to (h).
It has now to be seen whether these suspicious circumstances have been proved by the prosecution and whether they formed into a complete chain to invariably establish the guilt of accused.
(a) Criminal conspiracy hatched by accused in the two hotels. This aspect will be discussed a little while later after discussing the other circumstances.
2. Point No.1: (b) & (c) These two circumstances relate to the missing of trailer lorry bearing No.KA 08 B 4499 with iron load and its dacoity by the culprits after killing the driver and cleaner and burying their dead bodies and subsequent recovery of dead bodies by exhumation. These aspects have been cumulatively deposed by PWs. 1 to 14, 19, 31, 32, 33, 38, 39, 42 and 43. Besides, the prosecution produced documentary evidence such as Exs.P.1 to P11, P13 to P17, P28, P29, P63, P70, P71, P95 to P102, P103, P107, P108, P121, P122, P123 to P136 and P139. Hence the said evidence has to be scrutinized.
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(a) It should be noted, the fundamental defence of the accused is that all of them are innocent and they have nothing to do with the alleged offence and they were falsely implicated in the case by the police. Of course, incidentally they contended that the prosecution miserably failed to prove the dacoity of trailer lorry with iron load and killing of the driver and cleaner by specific persons and further, the prosecution also failed to identify the decomposed dead bodies found on exhumation with the driver and cleaner of trailer lorry bearing No. KA 08 B 4499.
3. Missing of Trailer Lorry bearing No. KA 08 B 4499 along with iron load and its dacoity:
Of the above witnesses, the evidence of PWs.1 to 7 and PWs.11 and 13 would depict the missing of trailer lorry bearing No.KA 08 B 4499 along with iron load and also the driver and cleaner.
(a) PW.1 is the Manager of PW.2 PW.2 of Vijayawada is the owner of the missing trailer lorry No.KA 08 B 4499.
PW.3 is the Manager in Kanishk Steel Industries at Gummadipundi, Tamilnadu and his company manufactures iron angulars, rods of different shapes and sizes on order from the customers and ::26::
transports them by engaging the services of Dalmia Transport company alias Dalmia Trailer agency.
PW.4 is the traffic in-charge of Dalmia Transport Company who use to arrange transport vehicles to Kanishk Steel Industries of PW.3 by contacting M/s Shanti Transport supply company, Chennai of PW.5. PW.5 maintains transport agency under the name and style "Sri Shanti Transport Supply Company" at Chennai who arranges lorries and trailers for transportation of goods on commission basis.
(b) The substance of their evidence is that PW.2 is the owner of the trailer No. KA 08 B 4499 and Gudur Syambabu (D1) and Gutthula Vinod Kumar (D2) were the driver and cleaner of the said vehicle. They carried load from Hyderabad to Chennai on 24.07.2008 and unloaded at Chennai on 26.07.2008.
While so, PW.3‟s Kanishk Steel Industries, Gummadipundi had to transport 28 tons of iron angulars by order of Coramandal Engineering Ltd., Kakinada. Hence PW.3 contacted PW.4 on 30.07.2008 for transportation of the load. PW.4 who is the traffic incharge of Dalmia Transport Company, Chennai, in turn contacted PW.5 - the Shanti Transport Agency for arranging a trailer lorry and so PW.5 arranged the subject trailer No.KA 08 B 4499 of PW.2. Accordingly, D1 and D2 took the vehicle to Tanishk Steel Industries ::27::
on the night of 30.07.2008 and loaded the iron angulars and started from PW.3‟s company at about 10:00 AM on 31.07.2008 for Kakinada and they were expected to reach the destination by 02.08.2008. PWs.3 and 4 issued relevant consignment papers to the D1 and D2. However, the vehicle did not reach Kakinada. When PWs.1 and 2 tried to contact D1 and D2, their cell phones were switched off.
(c) While so, PW.13 the mother of Gutthula Vinod Kumar (D2) and PW.8 -
the brother of Gudur Shyambabu (D1) deposed that D1 and D2 left home on duty on 22.07.2008 and on 31.07.2008, they informed by phone for the last time that they started from Chennai with iron load and proceeding towards Kakinada. Thereafter, whenever PWs.8 and 13 tried to contact to their cell phones, they were switched off. Thus there was no communication from D1 and D2 either to their owner or to their relatives from 31.07.2008 onwards.
(d) While so, PWs.1 and 2 set out in search of the trailer and the drivers. On 04.08.2008 they came to know that the empty trailer lorry bearing No. KA 08 B 4499 was abandoned at Miryalaguda-Krishnapuram road. On instructions of PW.2, PW.1 went there and found the empty vehicle without iron load and relevant consignment papers and other utensils, kerosene stove, pan and tape recorder etc. He gave Ex.P.1- report before SHO, Miryalaguda PS. ::28::
(e) PW.10, who is the SHO states that he registered a case in Crime No.123/2008 U/s 408 IPC against D1 and D2 and issued Ex.P.12 - FIR and commenced investigation. Pending investigation, he handed over interim custody of trailer lorry No.KA 08 B 4499 to PW.2 by obtaining Ex.P2-
security bond from him.
(f) The above oral evidence is also buttressed by the documentary evidence. Ex.P.3 - FORM A.R.E. - 1 issued by the PW.3 company showing that 28 tons of MS angulars were dispatched from its company at Gummadipundi to Coramandal Engineering Company of Kakinada through vehicle No.KA 08 B 4499. Ex.P8 is the copy of the invoice issued by PW.3 to the consignee M/s Coramandal Engineering Private Limited, Kakinada for 28.130 tons of MS angulars for Rs.12,99,606/-. Ex.P6 - copy of RC book shows that the PW.2 is the owner of the vehicle No.KA08 B 4499 and Ex.P7 is the national permit for the said vehicle issued by Transport Department of GoAP to ply the vehicle in AP. Orissa, Pondicherry and Tamilnadu. Ex.P9 is the Goods Consignment Note dated:31.07.2008 issued by M/s Dalmia Trailer Agency (PW.4) undertaking to transport the iron angulars from Gummadapundi to Kakinada through the trailer No.KA 08 B 4499.
(g) While so, PW.6 was the Chief Admin Officer of Sunnambatti toll plaza. On enquiry he informed to the I.O that the vehicle No. KA 08 B 4499 ::29::
crossed the said toll plaza on 31.07.2008 at about 06:00 PM from Chennai direction to Kolkata direction on NH5 road. Similarly, PW.7 the Chief Admin Officer of Tanguturu toll plaza informed to I.O that the aforesaid vehicle passed through the said toll plaza on 31.07.2008 at about 11:45 PM towards Ongole. Then PW.11 who is the Chief Admin Officer of Bollapalli toll plaza on enquiry stated that the said vehicle did not pass through the said toll plaza between 31.07.2008 and 15.08.2008. Ex.P121 - is the vehicle passing statement relating to Sunnambatti toll plaza issued by National Highway Authority of India to I.O which supports the version of PW.6. Similarly, Ex.P122 - vehicle passing statement relating to Bollapalli Plaza issued by NHAI confirms the version of PW.11.
(h) The defence side cross-examined the above witnesses but no useful material could be extracted. Thus, the above oral and documentary evidence pellucidly tells that the trailer lorry passed through Sunnambatti toll plaza in Nellore District and also Tanguturu toll plaza in Prakasam District but did not pass through Bollapalli toll plaza in Prakasam District which indicates that the said vehicle was found missing in between Tanguturu and Bollapalli highway and ultimately found on Miryalaguda-Krishnapuram approach road.
Thus obviously it may be a case of either the two drivers committing criminal breach of trust by taking away the iron angulars and leaving the empty ::30::
vehicle or a case of highway dacoity by some culprits. The first possibility can be safely ruled out as we presently know that the hapless driver and cleaner were murdered and buried and iron load was committed dacoity by the culprits.
4. Exhumation & Identification of Dead Bodies:
(a) This aspect is concerned, it should be noted the accused in the present case were also involved in two other similar offences i.e., SC.No.595/2010 (Cr.No.356/2008 of Ongole Taluk PS) and SC No.73/2010 (Cr.No.150/2008 of Singarayakonda PS). When Cr.No.356/2008 was under investigation, PW.45 - the I.O apprehended the present A1, A9 and A12 (A1, A11 and A3 in Cr.No.356/2008) and they admitted their guilt in different similar offences including the present offence before the mediators i.e., PW.31 and LW.35 - K. Sanjeeva Rao under the cover of Ex.P63-confession-
cum-mediator statement. They also revealed about the involvement of other accused in a series of offences. The admissible portion of Ex.P63 U/s 27 of Indian Evidence Act would show that in the present case in order to bury the dead bodies of D1 and D2, on the instructions of A1, at about 09:00 pm A7 took A2 and A3 on his Unicorn bike and left them near Gundlakamma river to dig a pit and came back. Thereafter, A2 & A3 dug the pit and A3 informed the said fact by phone to A1. Thereafter, A1, A6 and A7 took the dead bodies ::31::
in gunny bags in the Verna car driven by A1 and while A1 was sitting in the car on the road, others went to the spot and buried the dead bodies in the pit.
(b) While so, on 26.11.2008 PW.42-the I.O. has arrested A2 in the presence of mediators PW.20 & LW.38-Paleti Venkateswarlu and A2 confessed his guilt in this offence and other offences and agreed to show the burial place of D1 and D2 in the bank of Gundlakamma river. Ex.P32-
confession-cum-medaitor report was prepared. The admissible portion in Ex.P32 under Section 27 of Evidence Act would show A2 agreed to show the burial place of D1 and D2. In the context of exhumation, inquest and post- mortem we have the evidence of PW.42, PW.20, PW.12, PW.9, PW.32, PW.8, etc.
(c) PW.42-the I.O. deposed that after arresting A2 on 26.11.2008 and recording his confession statement, he requisitioned PW.12 to conduct exhumation and inquest and accordingly on 27.11.2008, PW.12 conducted the exhumation and inquest over the dead bodies. The relations of deceased were present and he examined them as PW.8, LW.29-Guttula Marraju, Ambadipudi Yesurathnam, LW.27-Puli Hanumantha Rao, etc.
(d) PW.12-the Tahasildar, Naguluppalapadu-cum-Executive Magistrate deposed that on 27.11.2008 he along with his staff reached the Gundlakamma river bank and there on being shown by the I.O., he examined ::32::
A2 and recorded his statement under Ex.P13 wherein, A2 while admitting his guilt in the present case agreed to show the location where D1 and D2 were buried and accordingly showed the place. Then he issued exhumation proceedings under Ex.P15 to disinter the dead bodies at Gundlakamma Poramboku situated on the Eastern Bank of Gundlakamma River in S.No.383, in Chedalavada Village. He further deposed that on exhumation they found two gunny bags wherein two skeletons in sitting posture were found with clothes and were decayed. PW8-Guduru Satyanarayana identified one of the dead bodies as Guduru Shyambabu who is his younger brother basing on his clothes. He prepared Ex.P10 & P11-inquest reports. He also secured the presence of PW.32-Government Doctor, Ongole for conducting post-mortem.
(e) PW.20 is the V.R.O., Maddipadu who deposed that he acted as one of the mediators for arrest of A2 on 26.11.2008 affected by PW.42 and for recording Ex.P32-confession-cum-mediator report. He also deposed that on the same day about 05:30 pm A2 took the police and mediators to the burial spot at Gundlakamma Poramboke in S.No.383 & 384, near Gundlakamma river and located the place and they observed the same under Ex.P33-report.
However, since the sun was set, they returned back.
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(f) PW.9-V.R.O, Naguluppalapadu is one of the inquest panchayatdars. He deposed that on 27.11.2008 on the instructions of PW.12, himself, LW.42-I.Anjaneyulu and LW.43-Valeti Venakata Rangaiah acted as Panchayatdars for the inquest held over the two dead bodies of Guduru Shyambabu (D1) and Guttula Vinod Kumar (D2). PW.12 conducted inquest at the exhumation spot and prepared Ex.P10 & P11-inquest reports. He stated that after inquest, the Tahasildar seized M.O.5 to M.O.7-clothes found on the dead body of G.Shyambabu and M.O.9 to M.O.12 from the dead body of Guttula Vinod Kumar. He stated M.O.13-two coir ropes found on the dead bodies were also seized. He stated that as per the opinion of Panchayatdars, the deceased were killed and buried. In the cross-examination, he stated that the two dead bodies were in a decomposed and unrecognizable. The brother of Guduru Shyambabu identified the dead bodies. He denied the suggestion that he was not present at the time of inquest.
(g) PW.8 is the brother of Guduru Shyambabu (D1). He is a resident of Lingamboina Cherla Village (L.B.Cherla). Inter alia he deposed that on being summoned by the C.I. of Police, Ongole he attended the exhumation and inquest proceedings held on 27.11.2008 at Gundlakamma river bank. A2 showed the place where they buried the dead bodies. On exhumation two gunny bags were found and when untied, two dead bodies with clothes were ::34::
found. Most importantly he deposed that he identified one of the dead bodies as his brother Guduru Shyambabu basing on the M.O.5-shirt and M.O.6-pant as the clothes contain the label "Srinu Tailor, L.B.Cherla, M.R.F. Readymade dresses". He further deposed that his deceased brother used to wear a gold ring with the icon of Lord Venkateswara weighing more than half Kasu. He identified M.O.8 as the said gold ring which was given to his brother at the time of his marriage. He further deposed that basing on M.O.9-blanket, M.O.10-shirt, M.O.11-pant and M.O.12-waist thread, he identified the other dead body as that of Guttula Vinod Kumar. He further stated that he attended the inquest held on the two dead bodies and signed on the summons issued to the blood relations for attending the inquest (those summons were enclosed to Exs.P10 & P11).
(h) PW.32-the Government Doctor, RIMS Hospital, Ongole deposed that on the requisition of PW.12, he went to the exhumation spot and conducted post-mortem over the two dead bodies of Guduru Shyambabu (D1) and Guttula Vinod Kumar (D2).
The dead body of G.Shyambabu is concerned, it was highly decomposed and bones were separated and very small quantum of suponified tissue was present. He described about the bones that were found. Among them, Hyoid bone was found with inward compression fracture of both horns.
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He stated that he preserved skull and long bone. He opined that cause of death was due to Asphyxia due to pressure on neck structures and time of death was more than six weeks. He issued Ex.P70-P.M.Certificate.
Regarding the dead body of Guttula Vinod Kumar, the Doctor deposed to have found similar features as that of other dead body. Skeletal remains were found; Hyoid bone with inward compression fracture of both horns was noticed. He preserved the skull and long bone. The P.M.Doctor opined that the cause of death was due to Asphyxia due to pressure on the neck and death was caused more than six weeks prior to P.M. He accordingly issued Ex.P71- P.M.Certificate. In the re-examination of P.P., the Doctor stated that the bones found under Ex.P.70 and P71 were related to two male human-beings.
(i) The above oral and documentary evidence would explicate that on the confession of A2 the two dead bodies were exhumed and inquest was held and though only skeletal remains of the dead bodies were found, still the blood relations identified them as Guduru Shyambabu (D1) and Guttula Vinod Kumar (D2) basing on the clothes and also subsequently, basing on the golden ring. It should be noted that in Ex.P10-inquest report relating to Guduru Shyambabu (D1), the description was given about the clothes found on the dead body. M.O.5-shirt is described as a brick and blue colour shirt with straight and cross strips in white colour. On its collar tailor‟s label was ::36::
there with the mentioning "Srinu Tailor, L.B.Cherla, M.R.F. Readymade dresses". Admittedly, both the deceased and their relations i.e., PW.8 & PW.13 are the residents of L.B.Cherla (Lingamboina Cherla), Narsapur Mandal, West Godavari District. Therefore, with the above oral and documentary evidence, the prosecution could establish the identity of the dead bodies beyond the pale of doubt. Further, the medical evidence confirms that the cause of the death was due to Asphyxia due to pressure on the neck. Hence the death is homicidal.
5. Sri B.N.V.Hanumantha Rao learned counsel for appellants/A1, A5 & A9 expostulated the exhumation conducted basing on the confession of A2. He argued that according to prosecution, A1 to A9 committed offence of murder and all of them knew the place where the dead bodies were buried and that being so, some of the accused viz., A1, A6, A7, A9, A10, A11 & A12 were arrested long prior to A2 and they confessed their guilt and also mentioned about the burial place of the dead bodies and therefore, the police already discovered the said fact even before the arrest of A2 made on 26.11.2008. As such, no discovery of any new fact can be claimed to be made basing on the confession of A2. Hence, the alleged exhumation and recovery ::37::
of dead bodies and their identification etc., have no evidentiary value and hit by Section 27 of Evidence Act.
(a) The above argument has no force in our view. It is true as per prosecution, A1 to A9 committed dacoity by killing D1 and D2. It is also a fact that dead bodies were exhumed from the place which is to the East of Cheerala road and Northern side of Gundlakamma river. However, it is not correct to say all the accused know the exact location where the dead bodies were buried. Some of them only broadly know the burial place as the bank of Gundlakamma river. Even according to the admissible portion of A1‟s confession under Ex.P63, it was A2 and A3 who actually selected the place near Gundlakamma river and dug the pit. On the instructions of A1, A7 only took A2 and A3 to the Gundlakamma river in the night about 09:00 pm and left them there and returned to A1. After receiving message from A3, again A1, A6 & A7 took the dead bodies in the Verna car and while A1 was sitting in the car on the road, the others took the dead bodies and buried in the pit. In the entire gamut of incidents, A2 & A3 were the only persons who knew the exact location as they themselves selected the place and spent considerable time in digging the pit. Whereas, A6 & A7 only went along with A1 and probably handed over gunny bags to A2 & A3. It was the dark of the night and open place by the side of Gundlakamma river. So the police will ::38::
certainly seek for a correct person to point out the exact location of the buried place. Therefore, merely some of the accused were arrested prior to A2 that cannot be a ground to conclude that the police already discovered the fact relating to the burying place of the dead bodies.
6. Secondly, it is argued that as per Ex.P.107-DNA profiling result, issued by the F.S.L., no matching could be established between Guduru Shyambabu (D1) and PW38 who is said to be his son and so also Guttula Vinod Kumar (D2) and PW13 who is said to be his mother. Therefore, the identity of the two dead bodies are not established, hence prosecution case has to be rejected in toto. We find no substance in the above argument. It is true that despite sincere efforts and for their no fault, the police could not get satisfactory DNA reports to identify the dead bodies. We will narrate the host of attempts made by the police to secure DNA reports.
(a) We will find in the evidence of PW.32 - post-mortem doctor and also in Exs.P.70 and 71 - PM certificates that on requisition of the I.O, PW.32 preserved the skull bone and long bone (femur) of D1 and D2 respectively for DNA profile. While so, as per the evidence of Pw.39-
Inspector of Police, Ongole, his predecessor i.e., PW.45 collected the above mentioned skull and long bones of D1 and D2 and he also collected blood ::39::
samples of LW.30 - Guduru Mahalaxmamma, mother of D1 and PW.13 - Gutthula Nagamani, mother of D2 and sent to FSL for skull superimposition as well as for conducting DNA test. Ex.P124 - is the letter dated 08.02.2009 addressed by PW.45 to PW.32 to forward the skull bones and long bones of D1 and D2 which were preserved by him to FSL, Hyderabad through PC-
401. Ex.P125 & 126 are the letters of advice dt: 08.02.2009 sent by PW.45 to FSL for superimposition of skulls of D1 and D2. Again two more letters of advice under Exs.P100 and 101, dated 05.05.2011 were sent to the FSL, Hyderabad for skull superimposition, as, on the previous occasion, the FSL, Hyderabad could not conduct superimposition because the digital photographs that were sent to FSL were unfit for superimposition and therefore PW.39 again sent photographs with negative films for superimposition purpose. To the above request, the FSL sent Ex.P103-letter dated 10.05.2011 stating that the case was not accepted for superimposition examination because skull of D1 was broken into pieces and skull of D2 lacks mandible and the digital photographs on enlargement did not contain clear picture but with blurred margins. Thus for this reason, superimposition could not be made.
(b) Be that as it may, conducting DNA test with the aid of skull and long bone of D1 and D2 on one hand and the blood samples of LW.30 and ::40::
PW.13 is concerned, FSL sent two identical results under Exs.P.95 and 96 wherein it is stated that DNA from the bones could be only partially amplified, whereas total amplified DNA profile was necessary to compare with the blood sample and hence no report could be given.
(c) It appears again the I.O took a chance and sent the blood samples of PW.13 - the mother of D2 and PW.38 - the minor son of D1 for DNA test.
This time the Centre for DNA Finger Printing and Diagnostics (CDFD), Hyderabad issued reports under Exs.P.107 to 109 which appears to be a lopsided one for the reason that the report shows at first DNA matching was done between D1 and PW.13 - the mother of D2 and naturally their DNA profiles did not match and to this extent the report is correct. Thereafter, matching was done between D2 and PW.38 - the minor son of D1 and surprisingly both the DNA profiles matched together and in the result it is mentioned that D2 is the biological father of PW.38. No matching was done between D2 and PW.13 and so also no matching was done between D1 and PW.38 to ascertain the results. Unfortunately, the trial Court accepted the said report despite the above incongruity. Therefore, it is not apposite to rely upon the said report in the instant case. Even otherwise, the identity of the dead bodies of D1 and D2 was amply established by the other evidence ::41::
discussed supra. DNA profile is only one type of evidence but not the be all and end all.
Learned Public Prosecutor argued that the DNA test is only one mode of establishing prosecution case and if other reliable evidence is produced by prosecution, the Court can accept it. He relied upon Sunil v. State of Madhya Pradesh5 wherein the Apex Court held:
"3. From the provisions of Section 53A of the Code and the decision of this Court in Krishan Kumar (supra) it does not follow that failure to conduct the DNA test of the samples taken from the accused or prove the report of DNA profiling as in the present case would necessarily result in the failure of the prosecution case. As held in Krishan Kumar (para 44) Section 53A really "facilitates the prosecution to prove its case". A positive result of the DNA test would constitute clinching evidence against the accused if, however, the result of the test is in the negative i.e. favoring the accused or if DNA profiling had not been done in a given case, the weight of the other materials and evidence on record will still have to be considered."
In view of above ratio, we reject the contention of the defence side. Thus on a conspectus we hold that prosecution could prove items (b) and (c) of point No.1 to the effect that the trailer lorry bearing No.KA 08 B 4499 with iron load was subjected to dacoity and its driver and cleaner were murdered.
5 (2017) 4 SCC 393 ::42::
7. Point No.1: (d): Storage of iron angulars in the shop of A8 and A13 and later selling them to PW.40 by the accused:
This aspect is concerned, the prosecution case is that after killing the D1 and D2, the accused took the trailer with iron load to the shop of A8 and A13 who are son and father and unloaded the iron angulars with the help of coolies and later on the instructions of A1, A8 and 13 sold the iron load to PW.40 and sale amount was distributed among accused. To prove this aspect the prosecution examined PWs.19, 31, 37, 40 and 45 and produced Exs.P30, 67 and 137.
(a) PW.45-I.O, deposed that on 03.12.2008 he arrested A8 in the presence of PW.31 and LW.35 - K. Sanjeeva Rao and he confessed his guilt in different crimes including the present case. A8 further admitted that himself and his father i.e., A13 sold away the iron angulars load to PW.40 for Rs.5,00,000/- and handed over the said amount to A1 and A1 in turn distributed the said amount to other accused by deducting the expenditure. His statement was reduced to writing under Ex.P67 - confession-cum- mediator report. PW.45 further stated that pursuant to the said statement, on 12.02.2009 he along with mediators PW.19 and LW.45-Vanguru Ramanaiah proceeded to Maruthi Ispat Steel Factory, Near Pathan Cheruvu, Hyderabad and came to know that PW.40 is the owner of the said factory and that A8 and ::43::
A13 sold 28 tons of stolen iron angulars to him for Rs.6,00,000/- and he in turn processed the same and sold away to third parties. Therefore, PW.45 realized the sale proceeds of Rs.8,00,000/- from PW.40 under the cover of Ex.P30 - mediator report. The said amount is kept in fixed deposited vide Ex.P.137-FDR.
(b) In consolidation, PW.40 deposed that he is the owner of Maruthi Ispat Company located at Isnapur Village in Medak District and LW.33 -
Munna roy was his manager. PW.37 is his friend and doing iron melting business in jeedimetla in ranga reddy District. Himself is also doing similar business. In his company iron scrap will be converted into iron rods of the size of 4mm, 6mm and 8mm for using in building construction works. He belongs to Rajasthan. He further stated that A13 with whom he has business dealings contacted him by phone during August, 2008 and offered to sell 28 tons of iron angulars and he agreed to purchase the same and asked A13 to deliver the iron scrap at his Maruthi Ispat Company. Accordingly, A8 and A13 brought the iron scrap within one or two days in a lorry to his company and delivered and at that time himself, his manager and other staff were present. The scrap was weighed and found to be 28 tons and he paid approximately Rs. 6 lakhs to A8 and A13. The iron scrap was processed in his company which approximately came to 25 tons which he sold for about ::44::
Rs.8 lakhs. It should be noted that this witness specifically identified A8- Shaik Riyaz in public Court and further stated that A13 was not available in the Court (A13 was absent). On 12.02.2009 when police party came to his shop he was at Rajasthan and so LW.33 -his manager informed this fact by phone. This witness requested his friends i.e., PW.37 and LW.57 - R. Lakshma Reddy to come to his factory and talk to the police. They came and talked with the police and this witness over phone and acted translators. He further deposed that he informed to the police that he was not aware of the fact that the iron angulars were the stolen property and that he would return the sale proceeds of Rs.8 lakhs to the police. The police agreed and so he instructed his manager to hand over the said amount and accordingly he paid the said amount to the police under the cover of Ex.P30-mediator report.
PW.37 also deposed in tune with PW.40.
The above oral and documentary evidence is severely challenged by the appellants on the main ground that though PW.40 admitted in the cross- examination that he obtained receipt from A8 and A13 for payment of Rs.6 lakhs and the transaction relating to purchase of 28 tons of iron was entered in the stock register of his company, the IO has not seized any record and produced before Court and so the alleged sale of iron angulars by A8 and A13 to PW.40 is a concoction. We are unable to countenance with this ::45::
argument. It is true that the police have not seized any record from PW.40. However, the facts and circumstances would show that the PW.40 belongs to a far off State of Rajasthan and his company is in outskirts of Hyderabad and therefore we do not find any reason for him to assist the police to fabricate stories. Similarly, PW.37 is also an iron merchant of Jeedimetla and he too in our view, had no necessity to support the police to create a false case. Above all, PW.40 paid a huge amount of Rs.8,00,000/- towards sale proceeds of processed iron angulars. For this reason we negative the contention of the appellants and accept the prosecution case. Accordingly, the prosecution proved item (d) of Point No.1.
8. Point No.1(e): Taking of godown of PW.17 on lease by A1 with the connivance of A14 for storing the iron load committed theft in different cases and concealing MO.22 - Verna car used in committing series of offences including the present one:
According to prosecution, in order to facilitate the storage of iron load committed theft in different offences, A1 took lease of the godown of PW.17 with the connivance of A14 who was a known person to PW.17. It is the further case of the prosecution that in execution of their wicked plan, the accused brought the stolen vehicles with iron load concerning to SC 595/2008 (RT No.4/2010) and SC No.73/2010 (RT No.2/2010) and stored in ::46::
the godown at Sitarampuram Kostalu and later sold away the iron to different iron merchants. The trailer of the vehicle in S.C.No.595/2008 was cut into pieces and sold away and power head alone was abandoned at a different place. The trailer of the vehicle in S.C.No.73/2010 was dismantled at a different place and they concealed the power head in a slate factory at Piduguralla. It is the further case of the prosecution that during the investigation in Cr.No.356/2008 (SC No.595/2010 in RT No.4/2010) the IO (PW.45 in the present case) apprehended A1, A3 and A11 in that case (A1, A12 and A9 in the present case) and they confessed their guilt in SC No.595/2010, SC No.73/2010 and also in the present case i.e., S.C.No.91/2010 under the cover of Ex.P63-confession-cum-mediator report. One of the important common facts concerning to these three cases discernable from the admitted portion of their confession is that in all the above three cases, MO.22-verna car was used by the accused before, during and after commission of offences and hence it is the crime vehicle. Later A1, A9 and A12 led the police party to the godown where the I.O and mediators found M.O.22 - Verna car and other articles which they seized under the cover of Ex.P110-mediator report. The Verna car is marked as M.O.22 by the I.O. In order to establish the fact that A1 took the godown on lease, the prosecution examined PWs.17 and 18 who were also examined in the other ::47::
two cases. Their evidence is identical in all the three cases. In RT Nos.2/2021 and 4/2021, we have held that A1 took godown on lease in the month of August, 2008 from PW17 for which A14 played criminal role but the agreement was entered on 01.09.2008. As such, in this case, we desist from making elaborate discussion regarding A1 taking godown on lease from PW.17 and the police seizing Verna car and other articles from the said godown. Our discussion is limited to the fact that MO.22 -Verna car which is the crime vehicle was seized from the said godown on the revelation of A1, A9 and A12. We must hasten to add that we are not oblivious of the fact that the godown was not taken on lease by A1 as on the date of offence in the present case i.e., 31.07.2008. However, running the risk of pleonasm, the emphasis is that MO.22 which is a crime vehicle was recovered from the godown subsequently. Thus the prosecution established item (e) of point No.1.
9. Point No.1(f): Abandonment of the trailer lorry by A4 & A9 on the instructions of A1 at Miryalaguda-Krishnapuram road and its recovery by police:
As per prosecution, after dacoity and killing of D1 and D2, the accused took trailer with iron angulars to the shop of A8 and A13 who are the son and father and unloaded the iron angulars and on the instructions of A1, A4 and ::48::
A9 took the empty trailer lorry and abandoned it near Krishnapuram village in the outskirts of Miryalaguda. Later, on knowing that the trailer was abandoned there, PW.2 who is its owner sent PW.1 his manager to the spot and PW.1 found the empty trailer and gave Ex.P1-report to PW.10-SHO, Miryalaguda Rural PS who registered a case in Cr.No.123/2008 U/s 408 IPC and issued Ex.P.12 - FIR and took up investigation. Pending investigation, he handed over interim custody of trailer lorry to PW.2 by obtaining Ex.P2- security bond.
While so, in the present case the police came to know about the abandonment of the empty trailer on apprehension of A1, A9 and A12 on 10.11.2008 and their confession. Later A4 was arrested belatedly on
13.02.2014 and he also revealed same facts. Thus to depose these facts the prosecution examined PWs.1, 2, 10, 31, 35, 45 and marked Exs.P1, P2, P12, P63. Hence, the said evidence is perused.
10. The cumulative effect of above oral and documentary evidence is that PW45 arrested A1, A3 & A11 (A1, A9 & A12 in the present case) in Cr.No.356/2008 in the presence of mediators PW31 & LW35 on 10.11.2008 and recorded their confession-cum-mediator statement under Ex.P63 wherein they revealed that in the present case, after committing dacoity and murder of ::49::
D1 & D2, they took the trailer with iron load to the shop of A8 & A13 where the iron angulars were unloaded and thereafter, on the instructions of A1, A4 & A9 drove the empty vehicle and abandoned it near Krishnapuram Village in the outskirts of Miryalaguda. While so, the evidence of PW2-the owner of the vehicle and his Manager i.e., PW1 is that on knowing through somebody that his vehicle was abandoned at Miryalaguda, PW2 sent PW1 to Miryalaguda and he found the empty trolley without the iron load and other articles. So on the instructions of PW2, PW1 gave Ex.P1-report to PW10-the S.H.O., Miryalaguda Rural PS making allegations against the driver and cleaner. Then PW10 deposed that he registered the complaint as a case in Cr.No.123/2008 U/s 408 IPC and issued Ex.P12-FIR and took up investigation. He proceeded and found the empty lorry stationed near Krishnapuram Village in the outskirts of Mirylaguda. He brought the said lorry to the police station and on 14.08.2008, he gave custody of the lorry to PW2 on obtaining Ex.P2-Bond from him.
(a) While so, basing on the confession of A1, A9 & A12 in present case, PW45 sent relevant papers to S.H.O., Maddipadu PS on point of jurisdiction and accordingly PW35 who was the SI of Police, Maddipadu PS registered Ex.P91-FIR in Cr.No.140/2008 of Maddipadu PS U/s 302, 379, 201 r/w 34 IPC and informed these facts to PW45.
::50::
Thus, the above evidence pellucidly tells that as per the admissible portion of the confession of A1, A9 & A12, the PW45-I.O., discovered the fact that the empty trailer bearing No.KA08B4499 was abandoned by A4 & A9 near Krishnapuram Village in the outskirts of Miryalaguda and the same was seized by PW10 in connection with Cr.No.123/2008 of Maddipadu PS and handed over the custody of the said trailer to its owner PW2 by obtaining Ex.P2-Bond. It is feebly argued by the appellants that no physical discovery of the vehicle was made on the confession of A1, A9 & A12 because long prior to the date of their discovery, PW10 has seized the said vehicle in connection with Cr.No.123/2008 and already handed over custody to PW2 by obtaining a bond. It is also argued that the trailer bearing No. KA08B4499 was not marked as M.O. in the present case and therefore, the confession of A1, A9 & A12 in this regard is not admissible in evidence. We are unable to accept this contention. It is true that as on 10.11.2008 when PW45 arrested A1, A9 & A12 and extracted their confession regarding the present case and other cases, PW10 had already registered Cr.No.123/2008 and seized the trailer and handed over its interim custody to PW2 by obtaining Ex.P2-Bond. However, at that time PW10 did not know that the said vehicle was involved in the present offence. The present offence is concerned, basing on the confession of A1, A9 & A12, PW45 discovered the fact that they abandoned ::51::
the crime vehicle in the outskirts of Miryalaguda. It is a different aspect if PW10 already seized the said vehicle in connection with Cr.No.123/2008 in the peculiar facts and circumstances, what is discovered is, the crime vehicle in the present case and in Cr.No.123/2008 is one and the same. So it preposterous to contend that there is no discovery at all. Accordingly, we hold that the prosecution proved item (g) in point No.1.
11. Point No.1(g) Arrest of different accused and recoveries basing on their confessions of different accused:
(a) Arrest of A3 and recovery of M.Os. 2 to 4 from him. As per prosecution, on 27.11.2008 PW45-the I.O., arrested A3 in the presence of mediators PW22 & LW40-Vaka Sankar Reddy and recorded his confession under Ex.P35-confession-cum-mediator report and basing on his confession, A3 led the police and mediators to his house and showed M.O.2-Kerosene stove, M.O.3-German silver vessel with covering plate and M.O.4-Iron roti pan with wooden handle which he taken away from the trailer and kept in his house and using. They were recovered by PW35 in the presence of mediators under the cover of Ex.P35-mediator report.
We have perused the above relevant evidence, which infuses confidence and establishes the recovery from A3. PW22 is the Panchayat ::52::
Secretary who acted as one of the mediators for arrest of A3 on 27.11.2008 and drafting Ex.P35-confession-cum-mediator report. He also acted as mediator for recovery of M.Os. 2 to 4 from the house of A3 at Inamanamelluru Village under the cover of Ex.P36-medaitor report. Ex.P35 & 36 contain the signatures of this witness and other mediators. They also contain the signature of A3. Though this witness was cross-examined at length nothing useful could be elicited to discredit his testimony. Hence, there is no reason to discard the recovery of M.Os. 2 to 4 made by police from A3. It is argued faintly that M.Os. 2 to 4 cannot be accepted as a substantial discovery as they are readily available in the open market. This argument cannot be countenanced for the reason that PW1 who is the Manager of PW2 deposed that on 04.08.2008 when he went to Miryalaguda he found empty trolley near Krishnapuram at Miryalaguda and the articles such as the consignment papers, utensils, kerosene stove, pan and tape recorder of the trailer were missing. He further stated that on the instructions of I.O., he visited Maddipadu PS on 10.02.2009 and he was led to Nataraja Kalakshetram where PW19-the mediator conducted Test Identification Parade for M.O.1-tape recorder and M.Os. 2 to 4-stove and utensils by mixing them with three other tape recorders, three stoves, silver vessels and roti pan and he identified them. PW1 further deposed that he could identify ::53::
those articles because he used to arrange vessels, stove and ration for the driver and cleaner whenever they go on duty. PW19-the V.R.O. who conducted identification test has deposed in similar manner and stated that after identification was over, Ex.P36-property identification statement was prepared by the mediators. Therefore, we find no force in the contra arguments of the appellants.
(b) Arrest of A8 and recovery of M.O.1 from him: On 03.12.2008 PW45-the I.O., arrested A8 in the presence of mediators PW31 & LW35-
K.Sanjeeva Rao and recorded his confession under Ex.P67-confession-cum- mediator report. Inter alia, A8 confessed that after dacoity, he took away M.O.1-taperecorder from the trailer. Ex.P68 is the property recovery mediator report dated 03.12.2008 under which the I.O. recovered M.O.1- taperecorder relating to this case and some other material objects relating to different cases in the presence of PW31 and LW35. Later, PW19 mediator conducted test identification for M.O.1-taperecorder and also M.Os. 2 to 4 by mixing them with similar articles and PW1 identified them correctly as already discussed supra. We have carefully gone through the above relevant evidence and find no reason to discard the same.
::54::
(c) Arrest of A5 and seizure of M.O.17-Indica Car bearing registration No.AP 29AB 8908: According to prosecution, the accused have used M.O.22 - Verna Car and M.O.17 - Indica Car bearing registration No.AP 29AB 8908 (original No.AP 16 AP 8785). As per prosecution, on 03.12.2008 PW42-I.O. has arrested A5 near Bhavani Centre on the road leading from Addanki to Darsi and Narsaraopeta in the presence of the two mediators i.e., PW19 and LW45-Onguri Ramanaiah while A5 was moving in a Tata Indica car bearing registration No.AP 29 AB 8908 and A5 said to have confessed his guilt in different offences including the present case and said to have used the said car in commission of offences. The chassis number of the said car is 605121ETZP 77210/06 and engine No.379001153804. The mediatornama-cum-confessional statement was recorded under Ex.P-24 signed by mediators, police and also A5. The said Tata Indica car is marked as M.O.17. The said car is identified as related to S.C.No.230/2012 on the file of III Additional District & Sessions Judge‟s Court, Nalgonda (Cr.No.109/2008 of Nalgonda II Town P.S.).
P.W.19 supported the prosecution and deposed above facts. Further, P.W.34 who is the owner of Tata Indica car bearing No.AP 16 AP 8785 was also examined by the prosecution to explain the circumstances under which his car was stolen and his driver was murdered. He stated that ::55::
on receiving information from Ongole Police that his car was traced out and being displayed with another number, he went there and after the car was produced in Nalgonda Court, obtained interim custody of his car. P.W.34 was cross-examined but no relevant material could be elicited to impeach his credibility. It should be noted that the above evidence establishes that the above Tata Indica car was subjected to theft after committing murder of its driver which was connected to a different case i.e., Sessions Case No.230/2012 on the file of III Additional District & Sessions Judge, Nalgonda. However, except the confession statement of A5 there is no other independent material to show that the said car was used for committing the present offence and most importantly A5 participated in the present offence. Therefore, we are unable to countenance with the prosecution‟s claim that A5 partook in the present case on hand. We are constrained to hold that prosecution failed to establish the guilt of A5 in the present case. However, we hasten to say that this view of ours is confined to the present case and it will have no influence on other connected cases wherein his complicity if any has to be evaluated independently.
(d) Arrest of A6 and seizure of M.O.8-gold ring:
As per prosecution on 15.11.2008, PW.45 arrested A6 and A11 in the presence of PW.31 and LW.35 - K. Sanjeeva Rao and they admitted their ::56::
guilt in different offences including the present case which was recorded under Ex.P64 - confession-cum-mediator report. The I.O seized MO.8 - gold ring from A6 and some other material objects from the possession of A11 in different cases. Later, PW8-th elder brother of D1-Guduru Shyambabu identified M.O.8 as that of D1. He deposed that his deceased brother used to wear a gold ring with the icon of Lord Venkateswara weighing more than half Kasu. He identified M.O.8 as the said gold ring which was given to his brother at the time of his marriage. The defense side cross-examined this witness but nothing specific could be elicited to suspect his credibility.
(e) Arrest of A14:
A14 was arrested on 05.12.2008 by PW45 in the presence of PW31 & LW35-L.Sanjeeva Rao. A14 is concerned, though there are no specific recoveries there is a strong and reliable evidence to the effect that he played criminal role in this case. A14 booked lodge rooms for A1 in Tasty Hotel and Narayana Palace for having criminal conspiracy with other accused. He also played a criminal role in securing lease of godown of PW17 for A1 to conceal the stolen iron materials and also the Verna car used for commission of offences. Concerned witness have strongly deposed above the criminal role of A14 in the present case and other cases.
::57::
12. Point No.1 (a):
Criminal conspiracy hatched by accused in the two hotels:
According to prosecution, all the accused hatched criminal conspiracy in Narayana Palace and Tasty Hotel, Ongole to commit dacoity of iron load vehicles passing on the High Way by killing the drivers. Before discussing the evidence adduced by prosecution in this context, it is germane for us to delve on the legal contours of the offence of criminal conspiracy under Section 120A and B of IPC.
(a) The Section 120A of IPC defines criminal conspiracy thus:
"120A. Definition of criminal conspiracy:- When two or more persons agreed to do, or cause to do done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
As can be seen, Section 120A and 120B are introduced by the Criminal Law (Amendment) Act, 1913 with a view to make the criminal conspiracy itself as a distinct and substantive offence and to make the conspirators liable for punishment for mere agreement to commit any offence. Prior to the ::58::
amendment, unless an overt act took place in furtherance of the conspiracy it was not indictable. The most important ingredient of offence of conspiracy is the agreement between two or more persons to do an illegal act. In pursuance whereof, even if no criminal act was done, still the conspirators are punishable for entering into the agreement to do a criminal offence. The proviso is in respect of limb (2) and it says that no agreement except an agreement to commit an offence shall amount to criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement. Thus as per the proviso, where the agreement is not an agreement to commit an offence, the agreement does not amount to cosnpiracy unless it is followed by an overtact done by one or more persons in pursuance of such agreement. It was so held by the Apex Court in Lennart Schussler and Anr. v. Director of Enforcement and Anr.6 Another important facet of conspiracy is that all conspirators are liable for the acts of each other of the crime which has been committed as a result of conspiracy. Criminal conspiracy is like a partnership in a crime and each conspirator is the agent of other.
6 MANU/SC/0117/1969=1970 CrlJ 707 ::59::
(b) While so, on the aspect of mode of proof of conspiracy, a slew of decisions have been rendered.
(i) In Yash Pal Mittal v. State of Punjab7 the Apex Court observed:
"9. The offence of criminal conspiracy under Section 120A is a distinct offence introduced for the first time in 1913 in Chapter VA of the Penal Code. The very agreement, concert or league is the ingredient of the offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must be aware and in which each one of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences, may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy."
(ii) In Mohammad Usman Mohammad Hussain Maniyar and Ors. v. State of Maharashtra8 the Apex Court observed:
"17. xxx The contention of learned Counsel is that there is no evidence of agreement of the appellants to do an illegal act. It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act. For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication."
7
MANU/SC/0169/1977=(1977) 4 SCC 540 8 MANU/SC/0180/1981=(1981) 2 SCC 443 ::60::
(iii) In Ajay Agarwal v. Union of India (UOI) and Ors.9 the Apex Court observed:
"11. The question then is whether conspiracy is a continuing offence. Conspiracy to commit a crime itself is punishable as a substantive offence and every individual offence committed pursuant to the conspiracy is separate and distinct offence to which individual offenders are liable to punishment, independent of the conspiracy. Yet, in our considered view, the agreement does not come to an end with its making, but would endure till it is accomplished or abandoned or proved abortive. Being a continuing offence, if any acts or omissions which constitutes an offence are done in India or outside its territory the conspirators continuing to be parties to the conspiracy and since part of the acts were done in India, they would obviate the need to obtain sanction of the Central Govt. All of them need not. be present in India nor continue to remain in India."
(iv) In E.K.Chandrasenan v. State of Kerala10 the Apex Court observed:
"As, however, Shri Lalit appearing for accused 1 made efforts, and sincere efforts at that, to persuade us to disagree with the finding relating to this accused being hand in glove with others, let us deal with the submissions of Shri Lalit. He contends that there is nothing to show about this accused being a conspirator inasmuch as in the meeting which had been taken place on or about 18.8.1982 with accused 9 this accused was not present. This is not material because conspiracy can be proved even by circumstantial evidence; and it is really this type of evidence which is normally available to prove conspiracy."
(v) In State through Superintendent of Police, SBI/SIT v. Nalini and Ors.11 the Apex Court explicated broad principles governing the law of conspiracy some of which are:
"i) Criminal conspiracy is committed when two or more persons agree to do or caused to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overtact is necessary.
ii) Not only the intention, but also agreement to carry out the object of intention is essential to constitute criminal conspiracy.
iii) Conspiracy is hatched in privacy and in secrecy. Hence it is rarely possible to establish it by direct evidence. Usually, both the existence of 9 MANU/SC/0265/1993=(1993) 3 SCC 609 10 MANU/SC/0205/1995=(1995) 2 SCC 99 11 MANU/SC/0945/1999=5 (1999) SCC 253 ::61::
conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
iv) Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not essential for the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
v) It is not necessary that all the conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of intended objective and all are equally responsible.
vi) The criminal conspiracy being a partnership in crime, the act of each of the conspirators make others jointly responsible. The joint responsibility extents not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incidental to the main act.
vii) A man may join a conspiracy by a word or by deed one who commits an overtact with the knowledge of the conspiracy is guilty. One who tacitly consents to the object of conspiracy and goes along with other conspirators, actually standing by while the others took the conspiracy into the affect, is guilty though he intends to take no active party in crime."
(vi) In Baliya v. State of M.P.12 the Apex Court observed:
"13. More often than not direct evidence of the offence of criminal conspiracy will not be forthcoming and proof of such an offence has to be determined by a process of inference from the established circumstances of a given case. The essential ingredients of the said offence; the permissible manner of proof of commission thereof and the approach of the courts in this regard has been exhaustively considered by this Court in several pronouncements of which, illustratively, reference may be made to E.K.Chandrasenan v. State of Kerala MANU/SC/0205/1995 : 1995 (2) SCC 99, Kehar Singh and Ors. v. State (Delhi Administration) MANU/SC/0241/1988 : 1988 (3) SCC 609, Ajay Aggarwal v. Union of India MANU/SC/0265/1993 : 1993 (3) SCC 609 and Yash Pal Mittal v. State of Punjab MANU/SC/0169/1977 : 1977 (4) SCC 540."
(vii) In Chandra Prakash v. State of Rajasthan13 the Apex Court observed:
"70. While dealing with the facet of criminal conspiracy, it has to be kept in mind that in case of a conspiracy, there cannot be any direct evidence. Express agreement between the parties cannot be proved. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the criminal conspiracy." 12
MANU/SC/0838/2012=(2012) 9 SCC 696 13 MANU/SC/0457/2014=(2014) 8 SCC 340 ::62::
(viii) In In re: Kodur Thimma Reddi and Ors.14 High Court of Andhra Pradesh held thus:
"20. Now, the last point that remains for consideration is whether there is any proof of criminal conspiracy for which all the accused have been convicted. In a criminal conspiracy, what is to be proved is agreement and common design. It is true that this proof need not be by direct evidence and that existence of a conspiracy may even be a matter of inference deduced from criminal acts done in pursuance of a common criminal purpose. But, unless a detailed and specific proof against each of the accused that they participated in a particular design to do a particular thins has been established, there can be no conviction under Section 120B."
(c) Thus, the essential jurisprudence that percolates down from the above decisions is:
For criminal conspiracy essential ingredient is the agreement between two or more conspirators to do an illegal act or an act which is not illegal by illegal means. The presence of all the conspirators right from beginning till end to achieve the objective of the conspiracy is not essential and it is also not essential that all the members of conspiracy and their assigned acts should be known to each other. Suffice they know and agree for the main criminal object. Since, conspiracy is hatched in secrecy, securing direct evidence is seldom possible. Hence, conspiracy can be proved by inference. Circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Since conspiracy is 14 MANU/AP/0071/1957=AIR 1957 AP 758 ::63::
never hatched in open, therefore, evaluation of proved circumstances play vital role in establishing the criminal conspiracy.
It has now to be seen whether the prosecution could establish the criminal conspiracy of the accused in this case.
(d) It should be noted, as per prosecution, the accused have assembled in Tasty Hotel and also in Narayana Palace Hotel during July-October, 2008 and had criminal conspiracy for committing the offences in three cases relating to RT2, RT3 & RT4/2021. The offence in RT3/2021 (SC 91/2010) was occurred on 31.07.2008 and during that relevant period, as per prosecution, A1 stayed in the Tasty Hotel and other accused visited him there. Therefore, the present case is concerned, the prosecution led evidence showing the occupation of A1 in Tasty Hotel only. For this purpose the prosecution examined PW15, PW16 & PW24 who are the employees of Tasty Hotel.
(e) PW15 is a receptionist in Tasty hotel worked from April 2008 to December 2010. He stated that A14 used to book room for A1. A1 occupied Room No.109 from 19.07.2008 to 21.07.2008 and paid rent of Rs.4,655/-.
Again he stayed in Room No.106 for one day on 06.08.2008 and vacated on 07.08.2008 and paid Rs.1,616/- as room rent. Exs.P19 & 20 are the guest ::64::
registration forms. The witness stated that A1 used to come in black Verna car and about 20 to 25 persons used to visit him. He specifically stated that all the accused in the Court used to visit him.
In the cross-examination, he admitted that Ex.P19 and P20 do not contain his signatures and they do not reveal that the rooms were booked by A14 for A1. He admitted that Ex.P18 book contains original and duplicate receipts in white and pink colours respectively but the original of Ex.P20 stands in the name of one K. Veerraju whereas Ex.P20 which is its duplicate stands in the name of A1. He stated that their hotel maintains occupancy register which contains the details of the persons occupied the rooms in the hotel but he did not hand over the occupancy register to the police. He specifically stated that on 19.07.2008 and 06.08.2008 he saw the accused and therefore, he was identifying him in the Court. He denied the suggestion that he did not work as receptionist and giving false evidence.
(f) PW16 is the room boy in Tasty Hotel worked from 2008-2009 he deposed that during July and August of 2008, A1 who is present in Court and whose name is M.A.S.Kareem occupied Room Nos.103, 106 & 109. He further stated that around 10 persons who were aged 25 to 30 years used to meet him in the Hotel and they used to talk in Urdu with regard to some ::65::
business. It should be noted that since this witness did not depose in tune with Ex.P21 which is his 161 Cr.P.C. statement as per which he identified those visitors, Public Prosecutor got him declared hostile and cross- examined.
In the defence cross-examination he stated that the persons who used to visit A1, were discussing about iron business and lorries and as this witness worked as room boy he entered in the room of A1 and heard them. He however stated that he cannot identify those persons. In the cross- examination of defence side, he stated that he has not seen the accused before coming to the Court after the date of his occupation of the room in the hotel. He deposed that he stated before Police that M.A.S.Kareem was short with beard.
(g) PW24 worked as Manager of Tasty Hotel from June 2006 to 2010. He deposed that during July and August 2008 A1 stayed in the Tasty Hotel for about eight days i.e., in Room No.109 from 19.07.2008 top 21.07.2008 and in Room No.103 from 01.08.2008 to 04.08.2008 and in Room No.106 from 06.08.2008 to 08.08.2008. Again he stayed for two days i.e., 20.08.2008 and 21.08.2008 in Room No.103. A14 who was working in D.R.D.A. Department booked room for A1. A number of persons used to visit A1 and they stayed ::66::
with A1 for hours together. This witness identified A4 and A8 standing in the Court as the persons visited A1. He identified Exs.P18 to P20 as the relevant records of their hotel. He further stated that Exs.P47 to P51 are the cash bills and Ex.P52 is the occupancy statement which he submitted to the police.
In the cross-examination he stated that he worked for four years in Tasty Hotel from 2006 to 2010. Though he admitted that in Ex.P18 to 20- guest registration books every receipt is maintained in duplicate i.e., white colour as original and pink colour as duplicate, however, he assertively stated that their hotel did not use the two colours as printed for. He stated that he cannot say who others stayed in Room No.108 & 110 from 19.07.2008 to 21.07.2008. He denied the suggestion that he did not work in the said hotel and deposed falsehood.
The above is oral and documentary evidence projected by the prosecution to show that A1 stayed in Tasty Hotel and had criminal conspiracy with other accused. It should be noted that, in RT2/2021 (SC 73/2010) and RT4/2021 (SC 595/2010), the prosecution adduced identical oral and documentary evidence so far as the stay of A1 in Tasty Hotel is concerned. After an elaborate discussion in RT2/2021 and RT4/2021 (wherein judgment is pronounced today), we have, for the reasons stated ::67::
therein held that A1 in the name of MAS Kareem stayed in the Tasty Hotel in different spells in July & August 2008. We also held that so far as the identity of MAS Kareem as A1 is concerned, the evidence of PW15, PW16 & PW24 would show that they have specifically identified A1. Besides, PW15 & PW24 stated that A14 used to book rooms for A1. PW15 further identified A4 & A8 as the persons who among others used to come and meet A1 in the hotel.
Thus the above oral and documentary evidence would clearly show that A1 in the name of MAS Kareem has stayed in Tasty Residence Hotel during July and August, 2008 and A14 booked rooms for him and A4, A8 and some persons used to come and meet him and they were discussing about the iron business. With this proved fact, whether criminal conspiracy of all the accused can be inferred is the sentient point. As we discussed earlier, criminal conspiracy since hatched in secrecy, securing direct evidence on this aspect is seldom possible. Therefore, taking into the circumstances that were proved before, during and after the occurrence, criminal conspiracy can be inferred. Ergo, the nature of the crime and facts that were proved before, during and after the crime have to be considered to decide the existence of criminal conspiracy.
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13. In this case and also in other similar cases as depicted by different mediator reports, the offences were occurred between July and September, 2008. All the offences were occurred on the national highway between Ongole and Nellore. The modus operandi in all these cases is identical i.e., the culprits committed dacoity of trucks passing with iron load on Highway by killing the drivers and concealing the dead bodies. From the nature of the crimes, it is evident that no single person can accomplish the task without the help of a group of culprits. Further, a diabolical design, meticulous division of tasks among the group of persons and ruthless execution are essential to achieve the fruition. That being so, the proven facts in this case would show A1 (and A3 in other cases) occupied the two hotels during the relevant period of the three crimes and had discussions with some persons relating to lorries and iron business. The other facts proved would show A1 with the connivance of A14 took the godown of PW17 on lease during the relevant period of offence in RT2 & RT4/2021 and concealed the stolen iron loads and also Verna car which is used in the offences. On the instructions of A1, A4 & A9 took the empty trailer lorry and abandoned the same at Krishnapuram in the outskirts of Miryalaguda. A1, A9 and A12 in general and A2 in specific revealed the place where the two dead bodies were buried.
A8 and A13 revealed about the sale of stolen iron rods to PW40.
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All the above instances would show that unless there was a prior criminal conspiracy among the accused, their wicked act could not have materialized. Therefore, we can safely presume the brooding of criminal conspiracy by A1, A2, A3, A4, A6, A7, A8, A9, A12, A13 & A14 in the Tasty Residency in the instant case. Hence, point No.1(a) has been established by the prosecution.
14. Proved circumstances completing the chain:
(a) We have elaborately discussed the incriminating circumstances and the evidence by which they were proved by the prosecution supra. When all these proven circumstances are systematically arranged, in our considered view, they will form into a complete chain invariably projecting the guilt of A1, A2, A3, A4, A6, A7, A8, A9, A12, A13 & A14. Running the risk of pleonasm, all of them are part of the criminal conspiracy to commit dacoity of iron loaded trucks proceeding on National Highway by killing the drivers and in pursuance of such wicked design, each one of them played his assigned role in fulfilling the object. Therefore, the circumstantial evidence unerringly established that none other than A1, A2, A3, A4, A6, A7, A8, A9, A12, A13 & A14 had criminal conspiracy pursuant to which each one of them played different roles and achieved the result of dacoity and murder of ::70::
the two drivers. On behalf of appellants it is argued that the case is based purely on circumstantial evidence and all the links have not been established to form into a chain and in view of the missing links, benefit of doubt should go to the accused. Learned Senior Counsel Sri P. Veera Reddy placed reliance on Digamber Vaishnav v. State of Chhattisgarh15 wherein it is held thus:
"19. It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
There is no demur about the principle. However, in this case as already observed, the prosecution could successfully establish its case beyond doubt. Hence this argument is of no avail.
(b) However, in our considered view, the prosecution failed to prove the complicity of A5, A10, A11 & A15 beyond reasonable doubt.
(i) A5-Shaik Dada Peer @ Gani is concerned, though consequent to his confession, Tata Indica car was seized from him, however, the prosecution failed to prove that the said car was used to commit the offence in the present case. Therefore, except his confession, which 15 (2019) 4 SCC 522 ::71::
is inadmissible under law, there is no other reliable material to establish his complicity in the present case. Therefore, A5 deserves benefit of doubt.
(ii) A10-Yepuri Pedda Veeraswamy, A11-Gundeboina Sridhar & A15-
Shaik Kamal Saheb @ Kamal @ Kamaluddin are concerned, except their confession statements, no recoveries are affected. Further, in the charge sheet no specific allegation is made against them and no specific criminal role said to be played by them was mentioned and proved. Hence, they too deserve benefit of doubt in this case. However, our above observation regarding A5, A10, A11 & A15 is confined to the present case having regard to the facts circumstances and evidence and the said observation will have no influence on other connected cases, wherein, their complicity if any, has to be evaluated independently.
15. Additional Arguments Advanced by the appellants:
Some additional arguments are also advanced by the appellants which are required to be mentioned.
(a) It is argued that the offence was occurred in this case on the night of 31.07.2008, however, FIR was belatedly registered on 17.11.2008 and ::72::
there was no proper explanation for the delay and hence, the prosecution case shall be rejected in totto.
The above argument, it must be said has no venom. Though the offence in the present case was occurred on the night of 31.07.2008 none, including PW2-the owner of the vehicle knew about it. Since the lorry did not reach the destination at Kakinada, and on knowing that the trailer was abandoned in the Krishnapuram Village in the outskirts of Miryalaguda, PW2 sent his Manager PW1 who went and gave Ex.P.1 report to SHO, Miryalaguda PS who registered Cr.No.123/2008 U/s 408 IPC against the driver and cleaner on the presumption that they committed criminal breach of trust. Be that as it may, the fact that the vehicle was subjected to dacoity and D1 & D2 were murdered came to light long after when PW45 was investigating another case in Cr.No.356/2008 wherein the present A1, A9 & A12 confessed their complicity in different offences including the present offence. Therefore, PW45 transmitted relevant documents along with letter to PW35-SI of Police, Maddipadu PS basing on which he registered Ex.P91- FIR in Cr.No.140/2008 U/s 302, 379, 201 r/w 34 IPC on 17.11.2008. Therefore, in the peculiar facts and circumstances of the case, it cannot be contended that there is any delay much less wilful delay in the registration of FIR. Even if there is delay the same is well explained by the prosecution.
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When delay in lodging FIR is properly explained, prosecution case cannot be discarded as laid in State of Madhya Pradesh v. Chhaakki Lal and Ors.16
(b) Nextly, it is argued that as per prosecution all the accused have committed three similar offences in a calendar year covered by SC No.73/2010, SC No.91/2010 and SC No.595/2010 and as such in terms of Section 223(c) of Cr.P.C, the trial Court ought to have conducted joint trial of all the three offences. Instead the trial Court conducted separate and parallel trials for the three offences causing much prejudice to the accused. Hence on that ground, the trial is vitiated in all the three cases including the present case and hence conviction and sentence are liable to be set aside. We find no force in this contention. As per Section 223 of Cr.P.C. joint trial can be conducted by the trial Court if the circumstances narrated in Clause (a) to (g) of the said Section are satisfied. Joint trial is optional as per the discretion of the Court since the word "may be" is employed at the beginning of Section 223 Cr.P.C. Unless strong prejudice is established, the accused cannot contend that the separate trial vitiated the prosecution case. In this regard, the Apex Court in Nasib Singh v. State of Punjab17 explicated certain principles on the aspect of joint trial / separate trial with reference to Section 218-223 Cr.P.C as follows:
16
2019(1) ALD Crl. 276 SC 17 (2022) 2 SCC 89 ::74::
"39. From the decisions of this Court on joint trial and separate trials, the following principles can be formulated:
(i) Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219-221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, Under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied;
(ii) While applying the principles enunciated in Sections 218-223 on conducting joint and separate trials, the trial court should apply a two-
pronged test, namely, (i) whether conducting a joint/separate trial will prejudice the defence of the Accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.
(iii) The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The Appellate Court may determine the validity of the argument that there ought to have been a separate/joint trial only based on whether the trial had prejudiced the right of Accused or the prosecutrix;
(iv) Since the provisions which engraft an exception use the phrase 'may' with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice; and
(v) A conviction or acquittal of the Accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate trial. To set aside the order of conviction or acquittal, it must be proved that the rights of the parties were prejudiced because of the joint or separate trial, as the case may be."
In the instant case the appellants could not show any prejudice or miscarriage of justice due to the separate trial in the above three cases. Hence this argument does not hold water.
(c) It is argued by the appellants that the mediator-cum-confession statements are concerned, the entire statements are marked as exhibits instead of discovery portion alone permissible under Section 27 of Evidence Act and therefore, those documents are not admissible in evidence. On this aspect the ::75::
appellants placed reliance on Tekam Lakshmi v. State of A.P.18 We are unable to agree with this argument. It is true that in some mediator-cum- confessional statements, the entire statements, by mistake were marked as exhibits by the trial court instead of marking only admissible portions under Section 27 of Evidence Act. General practice of the trial courts is that from out of the entire confessional statement, only the relevant portion admissible under Section 27 of Indian Evidence Act has to be marked as exhibit. Such marking of limited portion is to ensure that the court at the relevant time of appreciation of that document will confine its consideration only to the extent admissible under Section 27 of the Indian Evidence Act, but not the confessional part. However, the trial Court by mistake marked the entire documents as exhibits which contain both admissible and inadmissible portions. Thus the question is, on account of the said procedural error committed by the trial Court, whether the admissible portions of the statements of the concerned accused have to be discarded.
(d) In Tekam Lakshmi‟s case (Supra 18) a Division Bench of Common High Court of Andhra Pradesh having found that Ex.P7 was a confessional statement and the trial court has not marked only the relevant portion of such document held that the said document was not admissible 18 2019 (2) ALT Crl. 25 ::76::
under law. It observed that had the trial court marked the relevant portion in Ex.P7, the legality of the same would be otherwise.
(e) We respectfully disagree with aforesaid observation of the Division Bench. Merely because the trial court committed a mistake in marking both admissible and inadmissible portions of a confessional statement, that cannot be a ground to discard the entire statement which also contains admissible portion U/s 27 of the Evidence Act. The trial court at a later stage or the appellate court can accept the admissible portion of the statement leaving aside the inadmissible portion. Instead, if the entire statement is discarded, prejudice will be caused to the prosecution. Our view gets corroborated by the judgment of Apex Court in Venkatesh @ Chandra v. State of Karnataka19. While deprecating the practice of marking the entire statement of accused, the Apex Court in that case has taken only admissible portion of the statement by observing thus:
"18. As was observed by the Privy Council (Pulukuri Kotayya and others v. King Emperor (AIR (34 1947 PV 67) the words - "with which I stabbed A"
were inadmissible since they did not relate to the discovery of knife in the house of the informant. Applying this logic, only that part of the statement which leads to the discovery of certain facts alone could be marked in evidence and not the entirely of the statement. Coming to the instant case and going by the principle and the illustration highlighted by the Privy Council, out of the statement of accused No.1, only the following portion except the words printed in "italics" would be admissible and can be marked in evidence:
"....If I am taken there, I will show the spot where we committed murder, and we will show the place where we have thrown the knife and the rod. And we will show the shop in which we sold the jewelleries."
19
2023(1) Supreme 414 ::77::
The expression "where we committed murder" must not come on record. Similarly, all the earlier facts narrated in the statement about past history which are in the nature of self-implication, would be inadmissible as amounting to a confession made to a Police Officer. All the statements namely, Exhs.P-21 to P- 24 must be read accordingly.
19.We must observe that we have repeatedly found a tendency on part of the Prosecuting Agency in getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts. In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. In the present case, the Trial Court not only extracted the entire statements but also relied upon them."
In Aloke Nath Dutta v. State of West Bengal20 the similar view was expressed by the Supreme Court stating thus:
"53. It is, however, disturbing to not that a confession has not been brought on record in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles of Biswanath; the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed.It should not have been done. It may influence the mind of the court. (See State of Maharashtra v. Damu, SCC at p.282 para 35)
54. In Anter Sing v. Stateof Rajasthan it was stated: (SCC p.663, para 11) "11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kotayya v. Kind-Emperor in the following words, wich have become locus classicus: (AIR p.70, para 10) „It is fallacious to treat the "fact discovered" within the Section as equivalent to the object produced; the fact discovered embraces the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is 20 (2007) 12 SCC 230 = (2008) 2 SCC (Cri) 264 ::78::
discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house"
does not lead to the discovery of a knife;
knives were discovered many years ago.
It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not related to the discovery of the knife in the house of the informant.‟"
(But see Dhanunjoy Chatterjee v. State of W.P. SCC at pp.234-
35.)
55. Therefore, we would take note of only that portion of the confession which is admissible in evidence."
In the light of above jurisprudence, when the documents are perused, the trial Court, nor for that matter this appellate Court has taken into consideration the entire statement, particularly the confessional part of the statements, but our appreciation is confined to the admissible part only. Therefore, mere wrong marking of the entire statements by the trial Court, in our view, will not prejudice the appellants/accused particularly when the consideration is limited to the extent mentioned supra. Hence, this argument has not force.
(f) It is further argued that the I.O. in his evidence gave a vivid account of the facts relating to not only the present case, but also the other two connected cases and therefore, while cross-examining the I.O., the defence side had to make a herculean task of cross-examining the I.O., not only with ::79::
reference to the present case, but also the other cases. We find no much force in this contention. As the three cases are identical and committed within short span by almost same accused under similar circumstances and as the witnesses are mostly common and as the accused after apprehension, while giving confessional statements, narrated about their complicity successively in all the three crimes, the I.O. while giving evidence, had to give brief description of other offences in his deposition. However, the defence side while cross-examining him, mostly confined to the facts relating to the present case rightly. Therefore, we do not find any prejudice being caused to them.
X. POINT NO.II:
Offences committed by accused attracting different sections of law:
Having confirmed that A1, A2, A3, A4, A6, A7, A8, A9, A12, A13 & A14 were involved in dacoity with murder of the driver and cleaner. It has now to be seen which sections of law will attract their offences.
(a) A1 to A4 and A6 to A9 are found guilty for the offence of dacoity with murder punishable U/s 396 IPC;
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(b) A1 to A4, A6 to A9, A12, A13 & A14 are found guilty for the offence of Criminal Conspiracy to commit dacoity with murder and hence punishable U/s 396 r/w 120(B) IPC;
(c) A1 to A4, A6 to A9, A12, A13 & A14 are found guilty for the offence of belonging to a gang of persons associated for the purpose of habitually committing dacoity, inasmuch as these accused have also participated in similar offences relating to RT No.2 of 2021 and RT No.4 of 2021 wherein also the judgment is pronounced today and hence liable to be punished U/s 400 IPC.
(d) A1 to A4 and A6 to A9 are found guilty for the offence U/s 201 IPC for causing the evidence of the commission of the offence to disappear with an intention to screen themselves.
(e) A4 & A9 are found guilty of the offence U/s 414 IPC for taking away the trailer lorry from the place of offence to Krishnapuram Village in the outskirts of Miryalaguda and disposing of the same which they know or reason to believe to be stolen property.
The above accused are liable to be punished for the offences as stated supra. Point No.II is answered accordingly.
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XI. Point No.III:
(a) This point relates to the aspect whether the sentence imposed by the trial Court against the accused for different offences proved against them is legally sustainable.
In the above context, so far as A1 to A9 are concerned, the trial Court held them guilty of the offence U/s 396 IPC and awarded death punishment on two counts for killing two drivers. It should be noted, in the instant Referred Trial as well as concerned Criminal Appeals, we held that A5, A10, A11 & A15 are not guilty of any of the offences. In that view, the offence U/s 396 IPC is concerned, we found A1 to A4, A6 to A9 alone are guilty. For the offence U/s 396 IPC, the punishment shall be death or imprisonment for life or R.I. for a term which may extent to ten (10) years and also fine.
(b) It is trite that under Section 354(3) Cr.P.C., the trial Judge shall, while awarding sentence of death, state the "special reasons" for such sentence. In the instant case, the trial Court upon the observations that A1 to A9 pursuant to their criminal conspiracy, brutally and mercilessly murdered the driver and cleaner by strangulating them with ropes for the purpose of committing dacoity and the crime committed by them is a rarest of the rare case and that the accused are habitual offenders as they are involved in other offences also ::82::
wherein judgments are pronounced by the trial Court and therefore, there was no possibility for the accused to reform themselves and hence, no lenient view can be taken to consider imposition of alternative punishment and accordingly awarded death penalty to A1 to A9. Therefore, it has now to be seen whether the death penalty awarded by the trial Court against A1 to A9 is sustainable under law.
16. Learned Public Prosecutor vehemently argued that the trial Court was perfectly justified in awarding capital punishment to A1 to A9 for, there exists multiple aggravating circumstances viz., i) the accused have nurtured a diabolical motive of committing theft of the vehicles transporting iron load on highway even by killing the crew of such vehicles for wrongful gain, ii) in the process, they killed hapless, innocent, unarmed drivers and cleaners in a number of cases out of which three cases could be brought to book resulted in S.C.No.73/2010, S.C.No.91/2010 and S.C.No.595/2010 and thus the accused have criminal track record, iii) the habitual manner of committing highway dacoities coupled with murders has created shocking effect on the society on one hand and had adverse impact on the trade and transportation on the highway as the road transportation, in our nation is the main artery for trade and commerce which is being clogged, iv) the accused being the habitual offenders, expecting them to get compunction or contrition is unwarranted ::83::
and therefore, except the capital punishment, any alternative punishment will not yield desired result.
Learned Public Prosecutor placed reliance on:
In Susheel Murmu v. State of Jarkhand21 the Apex Court held:
"in rarest of rare cases when collective conscience of the community is so shocked that it will expect holders of the Judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty death sentence can be awarded". In State of U.P. v. Shri Kishan22 the Apex Court held:
"8. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-
wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
9. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should confirm to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public 21 AIR 2004 SC 394 22 (2005) 10 SCC 420 ::84::
abhorrence and it should "respond to the society's cry for justice against the criminal"."
17. Per contra, learned counsel for appellants while referring to the observation of the trial Court dated 24.05.2021 in its judgment, vehemently argued that the trial Court simply noted down the aggravating circumstances in its view and unfortunately did not make any endeavour to note down the mitigating circumstances and then placing them in juxtaposition with the aggravating circumstances and making a balanced auditing to know whether aggravating circumstances weigh over-and-above the mitigating circumstances to conclude that it is one of the rarest of the rare cases so as to invariably award capital punishment or to see whether the mitigating circumstances outweigh the aggravating circumstances to award an alternative punishment. Thereby, great injustice was done to accused taking them to the gallows. Learned counsel would further argue that there are indeed plausible mitigating circumstances worthy of consideration but the trial Court did not endeavour to ascertain from the defence side.
Then quoting the mitigating circumstances, he would submit that primarily the case on hand is based on circumstantial evidence, inasmuch as, there is no direct evidence for proving the dacoity-cum-murder. In expatiation, he would submit, the prime link of exhumation of dead bodies ::85::
was based on the confessional statement of few accused and rest of the accused were roped in basing on the principle of criminal conspiracy. However, as a whole, the case pivots on circumstantial evidence alone. In that view, he would emphasize, in a case of this nature, awarding capital punishment to A1 to A9 is unwarranted. Nextly, he argued that all the accused barring one or two are young in age and leading family life having wife, children and parents to fend. The trial Court ought to have obtained a report from the concerned authorities regarding the social status of the accused to evaluate whether awarding capital punishment is justifiable or not. He lamented that the trial Court miserably failed in that regard. He would further submit that in view of the young age of the accused, there is every possibility for their reformation having regard to the advancement in the field of medicine and psychology and through an apt counselling, reformation is not impossible. However, the trial Court has not bestowed its attention on this important aspect. Learned counsel thus prayed to take lenient view and commute the death sentences into suitable alternative sentences.
18. We have given our anxious consideration to the above respective arguments. In Bachan Singh v. State of Punjab23 the Apex Court exhorted that for persons convicted of murder, life imprisonment is the rule and death 23 1980(2) SCC 684 ::86::
sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law‟s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. Further, law is no more res integra as to the exercise that has to be undertaken by the Courts to decide whether a case falls in the phraseology of "rarest of the rare" or not. In a slew of judgments Hon‟ble Apex Court has reiterated that Courts are under solemn duty to conduct a balanced audit between the aggravating and mitigating circumstances which weigh against and in favour of a convict for assessing the nature of sentence. For instance, in Rameshbhai Chandubhai Rathod v. State of Gujarat24 the Apex Court held:
"34. Similarly, in Machhi Singh v. State of Punjab MANU/SC/0211/1983 : 1983CriLJ1457 the position was summed up as follows: (SCC p. 489)
38. In this background the guidelines indicated in Bachan Singh's case (surpa) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case (supra):
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be 24 (2009) 5 SCC 740, ::87::
taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.(emphasis supplied)"
19. In the light of the above principle, when we perused the judgment, as rightly argued by learned counsel for appellants, the trial Court, except recording the aggravating circumstances, did not make an honest attempt to ascertain and list out the mitigating circumstances for comparison with aggravating circumstances to come to a judicious conclusion on imposition of just sentence. Needless to emphasize, Penology expounds doctrine of proportionality of punishment to every crime. To arrive at such proportionality in capital punishment, the Court must invariably make balanced audit which is lacking in this case. Therefore, to that extent, injustice was caused to the accused. In Manoj v. State of Madhya ::88::
Pradesh25 the Apex Court emphasized the need to collect the mitigating circumstances at the stage of trial. It was observed thus:
"213. There is urgent need to ensure that mitigating circumstances are considered at the trial stage, to avoid slipping into a retributive response to the brutality of the crime, as is noticeably the situation in a majority of cases reaching the appellate stage.
214. To do this, the trial court must elicit information from the Accused and the state, both. The state, must-for an offence carrying capital punishment-at the appropriate stage, produce material which is preferably collected beforehand, before the Sessions Court disclosing psychiatric and psychological evaluation of the Accused. This will help establish proximity (in terms of timeline), to the Accused person's frame of mind (or mental illness, if any) at the time of committing the crime and offer guidance on mitigating factors (1), (5), (6) and (7) spelled out in Bachan Singh."
Hence, we have undertaken that solemn exercise to find out whether the mitigating circumstances projected by the learned counsel for appellants will over weigh the aggravating circumstances to conceive of an alternative punishment to the accused in this case.
20. It is true that it is a case wholly and solely based on circumstantial evidence. It is also true that the main link of exhumation of dead bodies was found on the strength of the confessional statements of one or two accused. However, merely because the case rests on circumstantial evidence, that itself 25 (2023) 2 SCC 353 ::89::
cannot be treated as a mitigating circumstance. That can be treated as a catalyst to consider with reference to the other factors.
21. The next circumstance projected is that almost all the accused are young persons, leading normal social and family life with wife, children and parents. As per the charge sheet, except few accused, others are aged between 25-40 years as on the date of offence. Therefore, there is some truth in the submission of appellants that they are young and having regard to the advancements in the realm of medicine and psychology, the chances of their reformation in the prison by a systematic and proper counselling cannot be ruled out. Added to it, pursuant to the directions of this Court dated 24.01.2023 given on the strength of judgment in Manoj's case (supra 25) concerned District Probation Officers and Jail authorities furnished reports on the conduct and lifestyle of accused. A perusal shows, the accused are by and large leading family life except A1 whose wife divorced and living separately along with children. The conduct of most of the accused in jail is reported to be satisfactory. Thus, taking the overall facts into consideration, we are of the considered view that there are reasonable mitigating factors which out-weigh the aggravating circumstances to commute the death sentence awarded by the trial Court to A1 to A9 into life imprisonment. Then in view of the observations made by the Apex Court in Swamy Shraddananda (2) v. State ::90::
of Karnataka26 that the sentence of life imprisonment when awarded as a substitute for death penalty would be carried out strictly as directed by the Court and as approved by a Constitutional Bench of the Hon‟ble Apex Court in Union of India v. V.Sriharan @ Murugan and Ors.27, and followed in Raju Jagdish Pasawan v. State of Maharashtra28, and also having regard to the nature of the crime and manner in which it was perpetrated by the accused, and other attending circumstances, we are of the view that the Appellants/A1 to A4, A6 to A9 do not deserve for remission before completion of 45 years of imprisonment meaning thereby, they shall undergo imprisonment for a total period of 45 years without remission.
22. Added to above, we seriously ponder over the wretched plight of the bereaved families of the deceased driver and cleaner. We are constrained to note that lack of proper patrolling on the highway also contributed for the gruesome and „serial murders‟ of hapless drivers in a series of cases. The State being parens patriae, is obligated to look after the safety, security and lives of its citizens. Therefore, we hold that the dependent family members of the deceased are entitled to compensation from the State Government. 26
(2008) 13 SCC 767 27 2016 (7) SCC 1 28 2019 (6) SCC 380 ::91::
23. Thus, in terms of the mandate under Sub Section 2 of Section 357A of Cr.P.C., we direct the District Legal Services Authority, Ongole in Prakasam District to ascertain the particulars of dependent family members of the deceased and issue notice to them and conduct enquiry as per the guidelines prescribed under the A.P.Victim Compensation Scheme, 2015 and decide quantum of compensation payable to those dependent family members of the deceased within two (2) months from the date of receipt of a copy of this judgment. Since, this exercise will take some time, in order to provide immediate succour to the dependent family members of the deceased, we direct the State Government of Andhra Pradesh to pay ex gratia of Rs.5,00,000/- to the dependent family members of each deceased in this case through the District Collector, Prakasam District within fifteen (15) days from the date of receipt of a copy of this judgment and report compliance to the Registrar Judicial of this High Court.
24. Accordingly, the Referred Trial and concerned Criminal Appeals are decided as follows:
1) R.T.No.3/2021:
The death sentence awarded on two counts to accused 1 to 9 in S.C.No.91/2010 by the VIII Additional District & Sessions Judge, Ongole ::92::
and referred in this R.T.No.3/2021 is answered to the effect that the conviction and sentence recorded for all the charges against A5-Shaik Dada Peer @ Gani is set aside and he is acquitted and whereas A1 to A4, A6 to A9 are concerned, the death sentence is commuted to the sentence of imprisonment for a total period of 45 years without remission on two counts which shall run concurrently.
2) Crl.A.No.158/2021 (filed by A7):
Criminal Appeal filed by Appellant/A7 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
3) Crl.A.No.159/2021 (filed by A11):
Criminal Appeal filed by Appellant/A11-Gundeboina Sridhar is allowed and conviction and sentence passed against him is set aside and he is acquitted of all charges.
4) Crl.A.No.162/2021 (filed by A2):
Criminal Appeal filed by Appellant/A2 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to ::93::
imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
5) Crl.A.No.166/2021 (filed by A1 & A9):
Criminal Appeal filed by Appellants/A1 & A9 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
6) Crl.A.No.184/2021 (filed by A3, A4, A5 & A10):
Criminal Appeal filed by Appellants/A5-Shaik Dada Peer @ Gani and A10-Yepuri Pedda Veeraswamy is allowed and conviction and sentence passed against them is set aside and they are acquitted of all charges.
Criminal Appeal filed by Appellants/A3 & A4 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
::94::
7) Crl.A.No.194/2021 (filed by A8 & A13):
Criminal Appeal filed by Appellant/A8 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
Criminal Appeal filed by Appellant/A13 is dismissed by confirming the conviction and sentence passed against him for different charges.
8) Crl.A.No.214/2021 (filed by A15):
Criminal Appeal filed by Appellant/A15-Shaik Kamal Saheb is allowed and conviction and sentence passed against him is set aside and he is acquitted of all charges.
9) Crl.A.No.252/2021 (filed by A6):
Criminal Appeal filed by Appellant/A6 is concerned, the death sentence imposed for the offence under Section 396 IPC is commuted to imprisonment for a period of 45 years without remission and sentence imposed for other charges is confirmed.
::95::
10) Crl.A.No.260/2021 (filed by A12):
Criminal Appeal filed by Appellant/A12 is dismissed by confirming the conviction and sentence passed against him for different charges.
11) Crl.A.No.354/2021 (filed by A14):
Criminal Appeal filed by Appellant/A14 is dismissed by confirming the conviction and sentence passed against him for different charges.
All the sentences imposed against accused shall run concurrently. Before parting, we will be failing in our duty if we do not extend words of our appreciation to the patient and erudite arguments of learned Public Prosecutor, learned counsels for appellants and apt and sublime assistance rendered by Court Officers, Court Masters and Law Clerks to discharge our pious obligation.
_________________________ U.DURGA PRASAD RAO, J __________________________________________ GANNAMANENI RAMAKRISHNA PRASAD, J Dated: 10.05.2024 Note: Registry is directed to forward a copy of this judgment forthwith to:
1) The Chief Secretary, Government of Andhra Pradesh, Amaravati.
2) The District Collector, Prakasam District, Andhra Pradesh.
B/o KRK/NNN