Andhra HC (Pre-Telangana)
Mahankali Venkanna vs The State Of A.P. Represented By Public ... on 6 June, 2018
Bench: C.V. Nagarjuna Reddy, Gudiseva Shyam Prasad
HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY and HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD Crl.A.No.660 of 2011 06-06-2018 Mahankali Venkanna.. Appellant The State of A.P. Represented by Public Prosecutor, High Court, Hyderabad... Respondent Counsel for appellant : Smt. A. Gayathri Reddy Counsel for respondent : Public Prosecutor <GIST: >HEAD NOTE : ? CASES REFERRED: Crl.A.Nos.326 and 910 of 2010, dt.6-4-2014 HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY & HONBLE SRI JUSTICE GUDISEVA SHYAM PRASAD Crl.A.No.660 of 2011 Date : 06-06-2018 The Court made the following : JUDGMENT:
(per Justice C.V. Nagarjuna Reddy) The gruesome murder of an ascetic, who devoted his life in the service of God by constructing a temple in his own house, is the subject matter of the present appeal.
The Police filed charge sheet against three persons named as A-1 to A-3. As the appellant/A-2 was in abscondance, the case was split-up. By Judgment dated 8-2-2010 in S.C.No.333/2009, A-1 and A-3 were convicted for the offences under Sections 302 and 394 IPC and inter alia sentenced to imprisonment for life. After the appellant/A-3 was apprehended, he was tried afresh for the offences under Sections 302 IPC r/w. Section 34 IPC and under Section 394 IPC r/w. Section 34 IPC and was convicted and sentenced to imprisonment for life and to pay a fine of Rs.1000/- for each of the offences.
The case of the prosecution, in brief, is stated hereunder:
PW-1 and her husband Sambasiva Rao (the deceased) were residing in the middle floor portion of the three storyed building constructed by them in Thallampadu; that in the upper portion there is a Shivalayam and that the ground floor portion was meant for devotees and kitchen. That the son of PW-1 and the deceased was working in a private company at Hyderabad and their daughter was studying Degree at Khammam and she was staying there. That on 9/10-09-2007 at about 10.45 P.M., when the deceased came out of the house to answer calls of nature, three unknown persons came and threatened them with knife and sticks and asked them to give money and gold, upon which the deceased told the offenders that they were not having anything and requested them not to harm them; that the accused beat PW- 1 on her mouth with stick and took two ear studs, two gold mangala suthralu from her person and one DVD player; that the accused searched the entire room and took her husband with them by confining her in a room; that PW-1 heard the hue and cry of her husband and that in spite of her shouting, no one came to their rescue on that night. That on the next day morning at 8.40 A.M. PW-2 went to the ashram for performing pooja and having heard the shouts of PW-1, opened the door; and that PW-1 came out and saw the dead body of her husband near the stair case. The accused beat the deceased on the middle of the stair case and threw him on the ground and killed him for property.
On receipt of the complaint from PW-1, the Sub-Inspector of Police, Khammam Rural Police Station, registered a case in Cr.No.208/2007 under Sections 302 and 394 IPC and sent the express FIRs to the concerned officers. PW-10-Circle Inspector of Police took up the investigation. During the course of investigation, PW-10 visited the scene of offence, examined PW- 1, PW-2, LW-3 and LW-4, got the scene of offence and the dead body of the deceased photographed by PW-3 a private photographer, observed the scene of offence minutely and drafted the rough sketch of the scene of offence along with Crime Details Form (Ex.P-9), seized MO-4 blood stained pestle, MO- 5 blood stained plough stick (Medi), MO-6 blood stained dothi of the deceased, MO-7 blood stained earth and MO-8 control earth, in the presence of the mediators PW-4 and LW-6. PW-10 also conducted inquest over the dead body of the deceased in the presence of the said mediators under the cover of Ex.P-10 and sent the dead body to the Government Hospital, Khammam, for post-mortem examination. PW-10 also sent PW-1 to the Government Hospital, Khammam for treatment. Dr. B. Jaya Rao, Civil Assistant Surgeon, Government Headquarters Hospital, Khammam, examined PW-1 and issued Ex.P-11 medical certificate. PW-11 conducted autopsy over the dead body of the deceased and issued post mortem report - Ex.P-13, opining that the deceased died due to the injury to the vital organ Brain. The material objects seized were sent for chemical analysis and report on 21-9-2007 and Ex.P-16 is the report issued by the Regional Forensic Science Laborator, Warangal.
On 7-11-2007, at about 11.00 Hours, PW-10 arrested A-1 and A-2 at Kodad cross roads, interrogated them before PW-7 and LW-9, recorded their confession statements and recovered two gold mangala sutralu (MO-2) from the possession of A-1 and one pair of ear studs (MO-1) from the possession of A-2 and some other properties pertaining to certain crimes of Kusumanchi, Wyra and Bejjanki Police Stations. As per the confession statements of A-1 and A-2, PW-10 arrested A-3 at his rented house at Kavirajnagar, Khammam, interrogated him in the presence of PW-7 and LW-9, recorded his confession panchanama and recovered a DVD player of AKAI make, under Ex.P-12-seizure panchanama. On 8-11-2007, all the accused were sent to judicial remand.
On the requisition issued by PW-10, PW-11 I Additional Judicial First Class Magistrate, Khammam, conducted Test Identification Parade of the accused under Ex.P-19. Ex.P-17 is the statement of PW-1 recorded by PW-11 prior to the commencement of the identification parade. PW-1 identified all the accused during the Test Identification parade. Upon completion of the investigation, PW-10 filed charge sheet against the accused for the offences under Sections 302 and 394 IPC.
After the appellant/A-2 was apprehended and produced before the learned III Additional Sessions Judge (FTC), Khammam, the charges were read over and explained to him, which he denied. During the trial, the prosecution examined PW- 1 to PW-11 and got Exs.P-1 to P-19 marked and produced M.Os.1 to 8. On behalf of the defence, no evidence was adduced. On appreciation of the oral and documentary evidence, the trial Court has convicted the appellant/A-2 and sentenced him as mentioned above. Feeling aggrieved by the said Judgment, the appellant/A-2 has preferred this appeal.
At the hearing, Smt. A. Gayatri Reddy, learned Counsel for the appellant submitted that the case is purely based on circumstantial evidence regarding the murder of the deceased and that the testimony of PW-1 as regards the identification of the accused lacks credibility as there was no possibility for her to identify the accused who were allegedly covering their mouths and heads with clothes. She has further argued that the identification parade was a make-believe affair as the accused were shown to PW-1 while they were in custody and that based on such identification, it was not safe to convict the appellant/A-
2. Alternatively, the learned Counsel submitted that the offence committed by the appellant, even if proved, the same would fall under Section 304 Part-II IPC. In support of her submission, the learned Counsel has relied upon the Judgment dated 6-4-2014 of the Division Bench of this Court in Crl.A.Nos.326 and 916 of 2010 pertaining to A-1 and A-3 connected with the same offence.
Opposing the above submissions, the learned Public Prosecutor submitted that the evidence on record clearly proves the involvement of the accused, including the appellant/A-2 and that the evidence of PW-1 and the Test Identification Parade proceedings clearly prove the involvement of the appellant in the commission of the offence. He has further argued that the nature of injuries on the deceased shows that they are serious in nature suggesting clear intention on the part of the accused to cause his death and that therefore the offence constitutes culpable homicide amounting to murder.
We have considered the respective submissions of the learned Counsel for the parties with reference to the record.
The fact that the death of the deceased is homicidal is not in dispute. The further fact that when the offence has taken place, PW-1 the widow of the deceased, was near the scene of offence is also not in dispute. Indeed, she is an injured witness as evident from Ex.P-11-medical certificate and the deposition of PW-6 the Civil Assistant Surgeon, who examined her and issued Ex.P-11. It is the case of the prosecution that the accused first attacked PW-1 and after pushing her inside the house and bolting the door from outside, they have attacked the deceased and that the when the attack on the deceased was taking place, PW-1 heard the cries of the deceased.
The main thrust of the argument of the learned Counsel for the appellant is that when as per PW-1s own testimony, all the accused covered their mouths and heads with clothes, there was no possibility of her identifying the accused. She has also termed the alleged Test Identification Parade as farcical. This being the prime submission of the learned Counsel for the appellant, we need to examine the same in detail. No doubt, PW-1, in her deposition, stated that when the deceased opened the door at about 10.45 P.M. for going out for attending the nature calls, she found three persons standing in front of the door armed with knives and sticks and covering their mouths and heads with clothes. That when the said persons demanded the deceased to handover valuables and cash, the latter replied that as they are devoted to the God, they do not possess any valuables and that the accused not heeding to the pleas of PW-1 and the deceased, took the latter out of the house after beating her inside the house with pestle and handle of the plough on her mouth and snatched away her two mangalasutrams, two ear studs made in gold and one DVD player; that thereafter all the three accused beat PW-1 indiscriminately, pushed her inside the room, bolted the door from outside and have done away with her husband outside the house. The defence has put the specific question to PW-1 in her cross-examination as to how she could identify the accused, to which she replied that she has seen them under the light at the scene of offence for sufficiently long time. She has denied the suggestion that she has identified the appellant/A-2 in the Test Identification Parade before the Magistrate at the instance of the Police.
Ex.P-19 is the Test Identification Parade proceedings held by PW-11. A perusal of the said proceedings would show that in pursuance of the requisition issued by PW-10, PW-11 issued proceedings to the Superintendent, Sub-Jail, Khammam to make the UT prisoners/suspects available in the premises of the Sub- Jail for the purpose of holding the identification parade; that summons were also issued to PW-1 who was produced before him by the Police and that he recorded her statement from 4 p.m. to 4.10 p.m. in the vehicle outside the jail premises. That PW-1 stated that she can identify the culprits participated in the commission of the offence basing on the physical appearance, complexion and hair dress; that PW-11 has directed PW-1 to sit outside the jail premises until she was called to the place of parade in the Sub-Jail, Khammam. That PW-11 then entered the Sub-Jail premises along with his Personal Assistant, secured the presence of A-1 to A-3 and picked 15 non-suspect persons in the Sub-Jail. After referring to the names of those 15 persons, the proceedings described the method followed by PW-11 in making the accused and the suspects stand in a line. It is further mentioned in Ex.P- 19 that PW-1 has identified all the three accused including the appellant who stood between the suspects at Sl.Nos.8 and 9. It is further stated that all the accused represented to PW-11 that they were already shown to the witness in the Police Station itself and that therefore there is no need to change their places and dresses for further identification by the witness.
PW-10, the Investigation Officer, in his evidence, deposed that after the arrest of the accused, they were sent to judicial remand on 8-12-2007 and that on 12-11-2007 he has filed a requisition before PW-11 for conducting Test Identification Parade at the Sub-Jail, and that Ex.P-19 is the Test Identification Parade report. Significantly, no suggestion was put to this witness that the accused were shown to PW-1 before the Test Identification Parade was held. In our opinion, the mere allegation without even a suggestion put to PW-10 that the accused were shown to PW-1 prior to the Test Identification Parade, would not affect the credibility of the Test Identification Parade. From the manner in which the occurrence has taken place, it is clear that PW-1 had the opportunity of observing some part of the faces, body size, shape, hair and built of the accused who allegedly attacked her before taking away the life of her husband. Therefore, merely because the mouth and head portions of the accused were masked, it cannot be said that it was not possible for PW-1 to identify the accused. Moreover, the prosecution was able to prove the recovery of MO-1-two ear studs, MO-2-two mangalasutrams and MO-3-DVD Player under Ex.P-12 panchanama. PW-10 has seized MO-2 from A-1, MO-1 from the appellant/A-2 and on the confession of the said accused MO-3 was seized from the possession of A-3. The said seizure was proved through PW-7, one of the panch witnesses. This evidence, in our opinion, is sufficient to prove the participation of the appellant/A-2 in the commission of the offence.
As regards the alternative submission of the learned counsel for the appellant, no doubt in Crl.A.Nos.326 and 916 of 2010, filed by A-1 and A-3 against their conviction for the offences under Sections 302 r/w. Section 34 IPC and Section 394 IPC r/w. Section 34 IPC, a Division Bench of this Court while holding the said accused guilty for the offence under Section 394 IPC, however, converted their conviction from the offence punishable under Section 302 IPC to one under Section 304 Part-II IPC. With due respect, we are unable to subscribe to the reasons assigned for such conversion. Ex.P-13 Post-mortem report, as spoken to by PW-8, shows the following injuries:
1. Laceration right forehead 3 x 1 x 1 cm.
2. Laceration left forehead 4 x 1 x 1 cm.
3. Laceration left parietal region 5 x 1 x 1 cm.
4. Laceration left ear external 3 x x cm.
5. Laceration mental region 3 x 2 x 2 cm.
6. Abrasion right knee 2 x 2 cm.
7. Abrasion left lower lip 2 x 2 cm.
Injury Nos.1 to 5 are caused on the face portion and they are all lacerated injuries which caused injury to the brain. From the very nature of these injuries, there can be no doubt that the accused had the clear intention of causing fatal injuries to the deceased and also the knowledge that in ordinary course of things, they cause death. Indeed, having accomplished the task of robbing PW-1 of the gold ornaments, there was absolutely no need for the accused to cause physical harm to the deceased. Even if they intended to create fear in the deceased so as to prevent him from raising alarm, there was no need for the accused to cause such grievous injuries, especially on the head. The manner in which the accused have treated the deceased as well as PW-1 shows their inhuman and monstrous behaviour without any regard for human life, pain and suffering.
It is a matter of grave concern that instances of this nature are on the rise indicating failure of law and order on the part of the State. If news reports being published are any indication, people from the States such as Bihar and Uttar Pradesh have infiltrated into the States of Telangana and Andhra Pradesh and been going on a rampage by committing robberies and deaoities causing fear psychosis in the minds of the general public. Any lenient view shown by the Courts in dealing with the offences of this nature would further encourage hooligans and anti-social elements in the society making them fearless putting the life and properties of the public at large in great jeopardy. It is high-time that the States of Telangana and Andhra Pradesh review the law and order situation and take stringent measures to prevent occurrences of this nature.
For the aforementioned reasons and subject to the observations made hereinbefore, the appeal is dismissed. ______________________ Justice C.V. Nagrjuna Reddy _________________________ Justice Gudiseva Shyam Prasad Date : 06-06-2018