Andhra Pradesh High Court - Amravati
Tammisatty Veeraswamy vs The State Of A.P. on 31 January, 2024
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL No.4 OF 2009
JUDGMENT:
The un-successful accused in Sessions Case No.244 of 2008, on the file of the Court of Sessions Judge, Prakasam Division, Ongole (for short, 'the learned Sessions Judge'), insofar as his conviction under Section 411 of the Indian Penal Code, 1860 (for short, 'the IPC') is concerned, filed the present Appeal questioning the aforesaid conviction and sentence, dated 08.12.2008, recorded by the learned Sessions Judge in S.C. No.244 of 2008.
2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience.
3. The Sessions Case No.244 of 2008 on the file of the Court of Sessions Judge, Prakasam Division, Ongole arose out of committal order in PRC No.7 of 2008 on the file of the Court of Judicial First Class Magistrate, Addanki (for short, 'the learned Magistrate') pertaining to Crime No.23 of 2007 of Martur Police Station registered for the offences under Section 302, 379 and 201 IPC. 2
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4. The State, represented by Inspector of Police, Inkollu filed charge sheet before the learned Magistrate pertaining to Crime No.23 of 2007 alleging the offences under Sections 364, 302, 379 and 201 IPC. The case of the prosecution, in brief, is that Bandaru Sivaiah (hereinafter referred to as 'the deceased') was a resident of Kurichedu Village of Prakasam District. LW.1 - Bandaru Tirupatamma is his wife. LW.2 - Bandaru Gopi and LW.3 - Bandaru Vijaya are their children. The deceased resided in Bangalore along with his family and used to take labour from Andhra area to work in and around Bangalore city on daily wage basis. LW.4 - Pallapu Subba Rao used to supply the labour. The accused, who is a native and resident of Palapadu Village, Narasaraopet Mandal, Guntur District, worked under the deceased as labourer at Bangalore for some time. LW.6 - Bathula Srinivasa Rao @ Srinu possessed Nokia cell phone with SIM No.09980187664. Deceased, who is the uncle of LW.6, took the said phone from him and utilized the same. Accused is ambitious to earn money in gambling. While leaving to Narasaraopet from Bangalore, the deceased requested him to secure men to do coolie work at Bangalore and inform him that he would come with cash to take the coolies. The accused returned to Narasaraopet with his wife. Thereafter, he developed a plan in his mind to call the 3 AVRB,J Crl.A. No.4/2009 deceased with money so as to pay the same to coolies and to kill him and steal the cash from him. Accused met LW.4, who used to supply labour, on 31.12.2006 and informed him that the deceased need labour to work in Bangalore and asked him to supply them. LW.4 accepted for the said proposal and advised the accused to call the deceased. Accused, accordingly called the deceased by phone and asked him to come to Narasaraopet and take the labour. On 01.01.2007, the deceased left Bangalore along with cash of Rs.10,000/- with cell phone of LW.6 in his possession, reached Narasaraopet on 02.01.2007 and met the accused at 10 AM. When the deceased was in the company of accused at 06:00 AM on 02.01.2007, LW.2, wife of the deceased, spoke with them. On the intervening night of 02/03.01.2007 at 01:30 AM the accused and deceased came to LW.4 and woke up him and discussed about the labour. LW.4 promised to gather labour on the next day and send them. Then, accused proposed to go to Addanki major canal to answer calls of nature and deceased followed him. Accused picked up a stout stick of 3 feet length at the house of LW.4 by saying to LW.4 that it is necessary to drive away the barking dogs. Later, after their departure, LW.4 entertained a doubt as to how much coolie to be paid to a woman and to a child and to clear doubt before securing labour, went to 4 AVRB,J Crl.A. No.4/2009 Addanki major canal and by the time he reached the Addanki major canal, accused was beating the deceased with the stick picked in front of his house. LW.4 rushed to rescue the deceased. By the time, the deceased fell down with bleeding injuries. Accused threatened to kill LW.4 if he reveals the incident to anybody. Then, the accused took away the cash of Rs.8,400/- from the deceased as well as his black colour Nokia cell phone and threw the dead body of deceased into the waters and caused disappearance of the evidence. Due to fear, LW.4 did not speak of the occurrence anywhere. Accused pledged the cell phone of deceased with LW.5 - Thalluri Benny @ Raghavulu for Rs.1,200/- and took the cash. On 07.03.2007 at 04:00 p.m. LW.1 gave a complaint in Martur Police Station. LW.12 - SI of Police, Martur Police Station registered the same as a case in Crime No.23 of 2007, as above, and investigated into. On 05.03.2007, LW.11 - SI, Epuru Police Station arrested the accused in Crime No.4 of 2007 and, during his disclosure statement in the aforesaid Crime, the accused confessed that he killed the deceased herein and also the deceased in Crime No.4 of 2007 of Epuru Police Station, Vinukonda Circle. LW.13 got the accused produced on PT Warrant and later got the accused remanded to judicial custody. LW.13 - Inspector of Police, Inkollu Circle, Inkollu took the accused from 5 AVRB,J Crl.A. No.4/2009 judicial custody into Police custody and interrogated him. At the instance of the accused, on 28.03.2007, he inspected the scene of offence. He recovered the Nokia cell phone from LW.5 and seized the same in the presence of mahazar witnesses i.e., LW.7 and LW.8. The efforts of LW.13 to trace out the dead body did not yield any result. Hence, the charge sheet.
5. The learned jurisdictional Magistrate took cognizance of the case for the offences under Sections 364, 302, 379 and 201 IPC and numbered it as PRC No.7 of 2008. After appearance of the accused and after completing the necessary formalities under Section 207 Cr.P.C, PRC No.7 of 2008 was committed to the Court of Sessions and the learned Sessions Judge after numbering the case retained it with him for disposal in accordance with law.
6. After appearance of the accused before the learned Sessions Judge, Ongole charges under Sections 302 and 379 alternatively 404 IPC and Section 201 IPC were framed and explained to the accused in Telugu for which he pleaded not guilty and claimed to be tried.
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7. In order to establish the guilt against the accused, the prosecution before the learned Sessions Judge, examined PWs.1 to PW.10 and got marked Exs.P-1 to P-11 and MO.1.
8. After closure of the evidence of the prosecution, accused was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in for which he denied the incriminating circumstances and stated that he is implicated in a false case and did not let in any defence evidence.
9. The learned Sessions Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the accused not guilty of the charges under Sections 302, 201, 379 and 404 IPC, but found him guilty as receiver of stolen property i.e., MO.1 under Section 411 IPC, convicted him under Section 235(2) Cr.P.C. and after questioning him about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for three years.
10. Felt aggrieved of the conviction and sentence, the un- successful accused therein filed the present Criminal Appeal. 7
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11. Insofar as acquittal of the accused under Sections 302, 201, 379 and 404 IPC is concerned, there is no Appeal filed by the prosecution. So, the scope of this Appeal has to be confined with regard to the allegation that accused was found in possession of the stolen property i.e., MO.1 for the offence under Section 411 IPC.
12. Now, in deciding this Criminal Appeal, the simple point that arises for consideration is whether the prosecution before the learned Sessions Judge, Ongole proved that the accused was the receiver of the stolen property - MO.1?
POINT:
13. Sri Challa Srinivasa Reddy, learned counsel for the appellant/accused, would contend that the crucial charges leveled against the accused were held to be not proved. There was no test identification parade involving any other witnesses so as to identify MO-1 either by the owner or by the kith and kin of the deceased. MO.1 was planted in fact to strengthen the charge under Section 302 IPC, which was held to be not proved. However, the learned Sessions Judge while extending an order of acquittal in favour of the accused erroneously took into consideration the 8 AVRB,J Crl.A. No.4/2009 fact that the accused can be convicted under Section 411 IPC. PW.3 was a witness to speak the allegations that he found the accused committing the murder of deceased and after committing murder, took away the cash and cell phone from deceased but he turned hostile to the case of prosecution. The revenue officials - PW.4 and other witnesses, supported the case of prosecution at the compulsion of the Police. There is no material to convict the accused even under Section 411 IPC as such Appeal is liable to be allowed.
14. Sri N. Sravan Kumar, learned Special Assistant, representing learned Public Prosecutor, would submit that though the evidence on record was not sufficient to convict the accused for the charges but on a thorough appreciation of the evidence on record, the learned Sessions Judge found favour with the case of prosecution with regard to the offence under Section 411 IPC. The deceased used MO.1 having taken from PW.5. PW.5 confirmed that the deceased used MO.1. PW.6 was the person with whom the accused pledged the cell phone for a sum of Rs.1,200/-. The recovery of MO.1 from PW.6 was proved. PW.5 and PW.6 supported the case of prosecution. Their evidence is consistent with the evidence of PW.7, PW.8 and PW.9. The evidence on record 9 AVRB,J Crl.A. No.4/2009 is sufficient to convict the accused under Section 411 IPC as such Appeal is liable to be dismissed.
15. As the learned Sessions Judge held charges under Sections 302, 201, 379 and 404 IPC, as not proved, but believed the case to the effect that the accused was the receiver of the stolen property, now, this Court has to look into only the relevant evidence concerning the offence under Section 411 IPC which was held to be proved by the prosecution. So, the substance of the evidence of PW.1 in this regard is that her husband while going from Bangalore to the place of accused at Narasaraopet, Guntur District with him brought the cell phone of PW.5. On 02.01.2007 evening at 06:00 p.m. she telephoned to her husband to the said cell number from a coin box along with PW.2 and had a talk with her husband over the phone. She deposed that she can identity the cell phone of PW.5 which was with her husband. The cell phone now shown to her appearing as the said phone in black colour. During cross-examination, she stated that she did not state before Police that she can identify the cell phone if shown to her.
16. Coming to the evidence of PW.2 - son of the deceased, he supported the evidence of PW.1 by deposing that his father had that cell phone of PW.5 and he used the same. He further deposed 10 AVRB,J Crl.A. No.4/2009 that even his father received a phone call to the aforesaid cell number 09980187664 from the accused to come with money for coolie works to get the coolies. He further testified that he and PW.1 on 02.01.2007 made a call from a coin box to the aforesaid mobile number and his father replied. In the entire cross- examination of PW.1 and PW.2 regarding these aspects nothing could be elicited to dent their evidence.
17. It is a fact that PW.3, a crucial witness to the prosecution, did not support the case of prosecution. He was cited to speak that he found the accused committing the murder of the deceased. Hence, the hostile attitude exhibited by PW.3 is not going to affect the case of prosecution in any way insofar as Section 411 IPC is concerned.
18. PW.4 was a mahazar witness in whose presence the confessional statement of the accused was recorded which leads to the recovery of MO.1. His evidence in this regard is that on 08.04.2007 along with Inspector of Police, they proceeded along with the accused to the house of Thalluri Benny (PW.6) and he confirmed that the accused pledged the cell phone of Nokia company with black colour with him for Rs.1,200/- stating that it is of him on 05.01.2007. The said Benny (PW.6) had shown the 11 AVRB,J Crl.A. No.4/2009 said cell phone and Inspector of Police seized it as that of the deceased. A mahazar was drafted to that effect.
19. Coming to the evidence of PW.5, he was no other than the owner of aforesaid mobile and he is Bathula Srinivasa Rao, who testified that he purchased the above mobile 4 months prior to the death of his uncle Sivaiah. In December, 2006 one or two days before his death his uncle - Sivaiah, starting from Yeswantapur to Narasaraopet, took the mobile from him. After waiting for 10 days he did not return back it and MO.1 is the said phone.
20. Coming to the evidence of PW.6 he was no other than Talluri Benny @ Raghavulu with whom accused was alleged to have pledged the mobile phone. According to the case of prosecution, his evidence is that on 05.01.2007 morning accused came to him and has shown a phone and by keeping it with him asked him to lend Rs.1,200/- to repay within two or three days thereafter. Accused claimed that it belonged to him. So, he lent Rs.1,200/- on the security of cell phone with his custody. He did not turn up as promised. Later Police persons came to him and enquired about the fact and he confirmed it as MO.1 cell phone. During cross- examination, he denied that accused did not pledge the aforesaid mobile with him.
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21. It is to be noted that PW.5 confirmed the fact that he was the owner of the above said mobile phone and he handed over the same to the deceased. PW.6 confirmed the fact that accused pledged the mobile with him on 05.01.2007. Nothing could be elicited from these witnesses to disbelieve their testimony.
22. PW.7 is another mahazar witness who was present at the time of confession made by the accused disclosing where the mobile was kept and according to him, accused disclosed that it was pledged with one Talluri Benny - PW.6.
23. Now, coming to the evidence of PW.8, SI of Police Epuru Police Station, Vinukonda Circle, he categorically testified about the fact that accused made disclosure statement that the mobile phone was pledged with PW.6.
24. Now, coming to the evidence of PW.10, the Investigating Officer i.e., the Inspector of Police, Inkollu he deposed that pursuant to the disclosure statement made by the accused, they proceeded to the house of PW.6 at Valaparla and recorded the statement of PW.6, who disclosed that the accused handed over the mobile with him for pledging. MO.1 is the said mobile phone. 13
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25. It is to be noted that PW.4 was no other than the VRO, Valaparla. He had no grouse, whatsoever, against the accused. PW.5 is the owner of the mobile phone and PW.6 is the person with whom the said mobile was pledged by accused for Rs.1,200/. They have no grouse against the accused. The contention of the accused is that these witnesses deposed false at the compulsion of Police. Such a contention is not at all tenable. Throughout the manner in which the mobile phone came into the custody of the deceased from PW.5 and further it came into the custody of PW.6 by the accused is consistent. PW.5 and PW.6 fully supported the case of prosecution. There is consistency in the evidence of PW.4 and PW.10 with regard to recovery of MO.1 from PW.6 - Benny, pursuant to the disclosure statement made by the accused. Absolutely, accused had no probable explanation as to the circumstances in which he came into the custody of the mobile phone. In the absence thereof, only conclusion which can be safely drawn is that he was the receiver of the stolen property. In my considered view, the learned Sessions Judge on thorough appreciation of the evidence on record came to a conclusion that there is sufficient evidence to convict the accused under Section 411 IPC.
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26. Having regard to the overall facts and circumstances, this Court is of the considered view that, absolutely, there are no grounds to interfere with the judgment of the learned Sessions Judge insofar as the conviction and sentence of the appellant/accused under Section 411 IPC is concerned. The prosecution categorically proved the offence under Section 411 IPC against the accused before the learned Sessions Judge beyond reasonable doubt.
27. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence imposed against the Appellant/Accused in Sessions Case No.244 of 2008, dated 08.12.2008, on the file of the Court of Sessions Judge, Prakasam Division, Ongole.
28. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 07.02.2024 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellant/accused in S.C. No.244 of 2008, dated 08.12.2008, and report compliance to this Court. A copy of this judgment be placed 15 AVRB,J Crl.A. No.4/2009 before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 31.01.2024 DSH