Andhra HC (Pre-Telangana)
Tangellamudi @ Gollamudi Ramesh, S/O ... vs The State Of A.P. Rep. By Its Public ... on 18 January, 2008
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. Accused Nos. Mo 6 in S.C. No. 151 of 2000 on the file of the V Additional District and Sessions Judge (Fast Track Court), Ongole, are the appellants. They were tried for the offences under Sections 148 and 302 I.P.C., alleging that they committed the murder of one Yeramala Srinivasa Reddy, at about 4:30 p.m., on 19-06-1998, at Ongole. Through its judgment dated 02-11-2005, the trial Court found the accused guilty, and convicted them of the offences, referred to above. Sentence of imprisonment of life, and fine of Rs. 1,000/- each; in default to undergo simple imprisonment for three months, was imposed for the offence under Section 302 I.P.C. In addition, the accused were sentenced to undergo rigorous imprisonment one year for the offence under Section 148 I.P.C. Both the sentences were directed to run concurrently. This appeal is filed by the accused.
2. The wife of the deceased, Yeramala Srinivasa Reddy, who was examined as PW-1, submitted a complaint on 19.06.1998, marked as Ex.P-1 in the Ongole Taluk Police Station. She stated that her husband had friendly relationship with one Mr. Kattari Krishna, and the followers of "Mr. Gidde", a rival of Kattari Krishna, had developed grudge against her husband. A quarrel was said to have taken place 10 days prior to that date, between one Mr. Sreenu and Petrol Bunk Prasad (A-2), and the former had sought the help of her husband, about one week prior to the date of incident. The deceased is said to have had a quarrel with A-2, in support of Sreenu, and that skirmishes were going on, ever since then. A-1 to A-5 were said to have hatched plans, to kill the husband of PW-1, and accordingly, on 19-06-1998, at about 4:00 p.m., when herself, deceased and the relatives are watching T.V., a young boy came and informed the deceased, that A-1 and A-2 were calling him, and thereupon, the deceased was said to have gone out wearing a lungi. Suspecting foul play, PW-1 is said to have gone out, and she is said to have seen the persons, named above, chasing her husband after altercation, on the road opposite to Rayi Venkata Subbaiah at 4:30 p.m. She complained that A-2 hurled bombs against her husband, and rest of the persons, named above, hacked him to death, with axes and knives. On hearing her cries, her senior-mother-in-law and some others were said to have came out of the house, and that when all of them have raised cries, the accused have fled away.
3. On receipt of the complaint, the Sub-Inspector of Police, PW-12, registered F.I.R., and informed the same to the C.I. of Police, PW-15. The latter took up further investigation and brought the inquest of the dead body, marked as Ex.P-4. On the next day, postmortem of the dead body was conducted, and the report thereof is Ex.P-9. Subsequently, the accused were arrested and charges were framed. All the accused pleaded not guilty. They were convicted and sentenced. Hence, the appeal.
4. Sri Bali Reddy, learned Senior Counsel, for the accused submits that Ex.P-1 itself was prepared in the Police Station, after due deliberations, and that the accused were falsely implicated. He submits that not even one independent witness has spoken about the involvement of the accused in the incident, and PWs 1 to 4 are totally interested witnesses. He submits that there are contradictions in the evidence of PWs 1 to 4 also. Learned Senior Counsel contends that several contradictions exist, as to the manner in which Ex.P-1 was submitted, and that there was unexplained delay in submission of the complaint, and forwarding of the F.I.R, to the Court. He points out that though no offence was alleged under Section 149 I.P.C., and no charges were framed, under the provisions of Explosive Substance Act (for short 'the E.S Act'), the trial Court had convicted all the accused, contrary to law.
5. Learned Public Prosecutor, on the other hand, submits that PWs 1 to 4, the eye-witnesses, have clearly stated the manner in which the accused have committed the murder of the deceased, and the circumstantial evidence has supported the same. He contends that Ex.P-1 was submitted by PW-1, and in the course of investigation, the complicity of the accused was found. According to him, the non-mentioning of Section 149 I.P.C., does not have any adverse effect, particularly, when a charge was framed under Section 148 I.P.C., and was found to have been proved. He further submits that though no charges were framed under E.S. Act, the post-mortem report, as well as the evidence of PW-11 disclosed that a blast injury was found on the right thigh of the deceased, and that the trial Court had taken the same into account for convicting A-1 also.
6. To prove its case, the prosecution examined PWs 1 to 15 and marked Exs.P-1 to P-18. To point out certain contradictions, the defence marked Exs.D-1 to D-5, which are the relevant portions marked in the 161 Cr.P.C. statements of some of the witnesses. PWs 1 to 4 are the wife, father, mother and brother, respectively, of the deceased. PWs 5 and 6 were said to have seen the occurrence; but turned hostile. PW-7 is the witness to the inquest report. PWs 8 and 9 are the panch witnesses for the mediators' report, and confessional statement, for arrest of A-2. They too turned hostile. The Constable, who has taken the dead body to the Hospital, was examined as PW-10, and PW-11 is the Doctor, who-conducted the autopsy. PW-12 is the S.l. of Police, who registered the case. PW-13 was examined to speak about the strained relations between the deceased and A-2, and he was declared hostile. PW-14 is the witness for inquest panchanama, and PW-15 is the Investigating Officer.
7. The first person, who is said to have seen the occurrence, is PW-1, the wife of the deceased. According to her, on 19-06-1998 her parents'-in-law, PWs 2 and 3; her brother in law, PW-4, and some others gathered at their residence at Ongole, in connection with the engagement ceremony of PW-4, and at about 4:00 p.m., a boy is said to have informed the deceased, that A-1 and A-2 are calling him. Thereupon, the deceased is said to have gone out, and suspecting foul play PW-1 went out of her house, after 10 minutes. After she walked about 60 yards from her residence, she noticed verbal exchange between the accused and the deceased, at a distance of 150 yards away, and that the deceased was running towards her, on being chased by the accused. Ex.P-1 and the deposition of PW-1 is consistent to the extent that A-1 is said to have hurled bomb at the deceased. However, while in Ex.P-1 it was stated that A-3 to A-5 hacked the deceased with axes and knives, in her evidence, PW-1 said that A-2 hacked the deceased with the axe and A-3 to A-6 have stabbed the deceased with knives. A-6 was implicated at a subsequent stage.
8. Another point to be noticed here is that PW-1 mentioned in Ex.P-1, that sister of her mother-in-law reached the spot and subsequently others came out of her house. The said lady was not examined. It was not mentioned in Ex.P-1 that PWs 2 to 4 have witnessed the occurrence, along with her. Ex.P-1 is silent as to the engagement ceremony of PW-4, whereas in the depositions, the witnesses said that PWs 2 to 4 and other relations have gathered in their house, in connection with the said ceremony.
9. PW-1 admitted that her marriage with her first husband was subsisting, and she was living with the deceased, since five years prior to the occurrence. She is said to have submitted a complaint personally in the Police Station at 6:00 p.m. PW-12, the S.I. of Police stated that she remained in the Police Station for about 45 minutes, and he registered F.I.R. under Sections 147, 148, 302 read with Section 149 I.P.C., and Sections 3 and 5 of E.S. Act, and informed the same to PW-15. There is some uncertainty as to the manner in which PW-15 is said to have received the F.I.R., marked as Ex.P-10. In his chief-examination, he stated that he took up the investigation, after receiving Ex.P-10. In his cross-examination, however, he stated that he received express F.I.R., while he was present at the scene of offence. In Ex.P-1, the names of A1 to A-5 alone were mentioned. The basis for implicating A-6 is said to be his surrender before the Court.
10. It is important to note that according to PW.1, Ex.P-1 was prepared in her house and was scribed by a Constable, at a time when it was almost dark. If the Police have arrived at the scene of offence, or house of PW-1, even before the complaint was presented, it becomes doubtful, as to why PW-1 was required to go over to the Police Station, for submission of the complaint, or to remain in the Police Station for 45 minutes, as stated by PW-12. This, however, by itself, cannot have any impact on the credibility of the evidence of PW-1, if it is of otherwise consistent.
11. The father of the deceased deposed as PW-2. He stated that he came to know about the disputes between A-2 and one Sreenu, and that the deceased informed him that he was suspecting harm from the accused. To the extent that the deceased went out on being informed by a boy, and PW-1 left 10 minutes later, suspecting foul play. This witness has repeated what was deposed by PW-1. He stated that on hearing cries from PW-1, himself, his wife, and his sister-in-law, came out of the house. He is silent about the presence of PW-4, his other son. His sister-in-law was not examined. Even while the said persons were said to be proceeding towards the scene of offence, he is said to have seen A-1, hurling the bomb at the deceased; A-2 hacking the deceased with axe; and A-3 to A-6 stabbing the deceased with knives. He repeated the names of A-3, A-4 and A-5, but said that he does not know the name of A-6. It may be noted that PW-1, the first person who is said to have seen the incident and raised cries, did not speak about the presence of A-6, but the persons, who are said to have reached the scene a bit later, spoke about the presence of the said accused.
12. In his cross-examination, PW-4 stated that it has taken 10 or 15 minutes to reach the scene of offence from the house of the deceased. He has also stated that he has no acquaintance with the accused prior to the incident. Therefore, serious doubt exists, as to the distance between the house of the deceased and scene of offence, as well as the identify of the accused, from the evidence of this witness. It was also elicited from this witness that there is a Pan Shop near the scene of offence, but he stated that it was closed by the time the incident took place. PW-3, the mother of the deceased virtually repeated what was stated by PW-2. However, she denied the existence of any Bunk or Pan Shop.
13. PW-4 is the brother of the deceased. By the date of occurrence of the incident, this witness was employed as a Police Constable. One significant statement of PW-3 is that the engagement ceremony of her son, PW-4 was to be performed at a village known as Inamanamelluru. She stated:
On the date of incident, myself, my husband and some of our relatives came to the deceased's house situated at 4th lane, Gopalnagar, in connection with the engagement ceremony of my younger son, Ramesh (PW-4), to be performed at Inamanamelluru.
PW-4 is said to have come down to Hyderabad in connection with his engagement ceremony. His chief-examination is silent as to the place of the engagement ceremony. In the cross-examination he stated that the function was scheduled to take place at Inamanamelluru village, on the date of incident. He was confronted with his statements, recorded under 161 Cr.P.C, marked as D-2 and D-3. They read as under:
Ex.D-2: ... As there was my betrothal ceremony at Ongole on 18-06-1998, I came to Ongole. As the betrothal ceremony has to take place at the house of my elder brother, I came there.... .
Ex.D-2: My betrothal took place in the morning of 19-06-1998. My relatives went to Inamanamelluru...
As regards the manner of attack on the deceased, he repeated the version of PW-2. As observed earlier, PWs 5 and 6, who were cited as eye-witnesses; have turned hostile.
14. On a scrutiny of the evidence of PWs 1 to 4, it becomes clear that none of them have prior acquaintance with the accused. Still, no test identification parade was conducted. Ex.P-1 does not contain the name of A-6. The circumstances, under which his name came to be included, are not clear from the evidence of PW-15, the Investigating Officer. There is no consistency in the evidence, as to the acts attributed to A-2 to A-6. While according to Ex.P-1, A-2 to A-5 are said to have attacked the deceased with axes and knives; in their evidence PWs 1 to 4 stated that A-2 hacked the deceased with axe, and A-3 to A-5 stabbed the deceased with knives. According to PW-2, it would take at least 10 minutes for one, to reach the scene of offence, from the house of the deceased. It may be recalled that according to PW-1, the altercation between the deceased and the accused took place, at a distance of 150 yards from her house, and that the deceased ran towards his house, when chased by the accused. It means that the distance between the scene of occurrence can be roughly 100 yards from the house of PW-1. It would not take 10 to 15 minutes, to cover this distance.
15. PWs 2 to 4 have gone out of the house, only after hearing the cries. Therefore, it is improbable for them to have noticed the same thing, and in the same sequence, as witnessed by PW-1. Further, PW-1 did not mention the names of PWs 2 to 4, in Ex.P-1, and the only person, who was mentioned in Ex.P-1 with identification, was the sister of PVV-3, who was not examined at all. It is a serious omission on the part of the prosecution.
16. It has already been pointed out that Ex.P-1 is said to have been submitted by PW-1 at the Police Station about two hours after the incident. The scene of offence is said to be 3 kms., away from the Police Station. PW-1 categorically stated that the complaint was scribed by a Constable, in her house. Therefore, it is quite possible that the Police arrived at the scene of offence, soon after receiving the information about the occurrence. In such an event, recording of the statement of PW-1, or any other kin of the deceased would have been sufficient, to constitute the basis for the FIR. The sequence of the events presented in Ex.P-1 presents a serious doubt. Sufficient foundation was laid down to attribute the incident to identified individuals, even before mentioning incident as such. The Surname of A-2 came to be supplemented later.
17. Though the F.I.R. was registered under the provisions of I.P.C., as well as the E.S. Act, no charge was framed under the latter enactment. Column 15 of the F.I.R., which relates to the date and time of dispatch to the Court, is left blank. It was elicited from PW-12, S.I. of Police, that the residence of III Additional Munsif Magistrate, Ongole, is one kilometer away from the Police Station. However, the FIR reached the Magistrate only at 1:40 a.m., on 20-06-1998. PW-12 stated that the FIR was received by PW-15 at 7:30 p.m. on 19-06-1998, whereas PW-15 said that he received the same even while he was at the scene of offence. It was suggested to PW-15 that Ex.P-1 was created during the night-time on the date of incident, and that the accused were falsely implicated. Such an enormous delay in the facts and circumstances of the case would have its own impact.
18. None of the accused were acquainted with PWs 1 to 4. It was obligatory on the part of the prosecution to conduct a test identification parade, to establish the identity of the accused. For reasons best known to them, no such parade was conducted. It is not at all safe to convict the accused on the basis of the evidence of PWs 1 to 4, who are interested witnesses, that too, when they did not have any prior acquaintance with the accused.
19. It is true that no charge was framed under Section 149 I.P.C. However, we are of the view that, by itself, it is not fatal, if the circumstances otherwise warrant conviction under that provision. Further, the failure to frame a charge under the provisions of the E.S. Act is also not fatal, since an injury, on account of an explosion, was noticed.
For the foregoing reasons, we are of the view that;
a) the evidence of PWs 1 to 4 is interested, and there exist serious contradictions in their evidence;
b) there is enormous unexplained delay in submission of the complaint, registration of case, and forwarding the same to the Magistrate, and this delay is capable of being utilized to weave a story to implicate the accused, and
c) the failure to hold test identification parade is fatal.
20. Accordingly, we allow the appeal. The conviction and sentence against the accused is set aside, and they shall be set at liberty, forthwith, unless their presence is needed in any other case.