Andhra HC (Pre-Telangana)
Naga Reddy Narasa Reddy And Ors. vs State Of Andhra Pradesh on 21 January, 1994
Equivalent citations: 1994(1)ALT(CRI)405, 1994CRILJ2545
JUDGMENT
1. In view of the divided opinion of the two learned Judges constituting the Division Bench V. Sivaraman Nair and D. J. Jagannadha Raju, JJ. - This criminal appeal was listed before me pursuant to the order made by the Hon'ble the Chief Justice under S. 392 of the Criminal Procedure Code.
2. This appeal is from the judgment of the learned Additional Sessions Judge, Nellore in S.C. No. 80 of 1990 convicting the thirteen appellants herein - A.1, A.2, A.4 to A.7 and A.9 to A.15 - for committing the murder of one Pothireddy Kodandarami Reddy, son of Dasaratharami Reddy, Sarpanch of Pidathapolur village, Muthukur Mandal, Nellore District on 25-3-1989 at about 10.30 p.m., on the metal road at a distance of about one furlong from Brahmadevam Centre on Brahmadevam-Pidathapolur Road and sentencing them to suffer imprisonment for life under S. 302 r/w S. 149, IPC. They were also convicted under S. 147, IPC and each of them was sentenced to suffer R.I. for one year. A.7, A.9 to A.12 were convicted under S. 148, IPC and each of them was sentenced to suffer R.I. for two years and they were also separately found guilty of the charge under S. 302, IPC and sentenced to suffer imprisonment for life. In all 19 accused were tried by the learned Additional Sessions Judge on various charges including the murder of the deceased Kodandarami Reddy and for attempting to commit the murder of PW 2 - Ravikumar Reddy. Six of the accused - A.3, A.8, A.16, A.17, A.18 and A.19 - were acquitted by the learned Additional Sessions Judge and the rest of them - the appellants herein - were convicted as stated supra.
3. The deceased Kodandarami Reddy was the son of PW 1 - Dasaratharami Reddy, a native of Pidathapolur village. The deceased was elected unanimously as the Sarpanch of the village in 1980. He was also the Village Munsif for a long period until that institution was abolished. Before that, for about 30 years, A.1 - Narasareddy - was the Sarpanch of the village. From 1981 onwards, there were open hostilities between A.1 and PW 1. A.3 is the son of A.1. A.5 is the son of A.4, A.6 and A.7 are brothers and they are the sons of A.4's elder brother. A.8 is the junior paternal uncle of A.4's son-in-law. A.9, A.10 and A.17 are brothers. A.14 and A.15 are cousins. A.2 is a close relative of A.1. A.15, A.18 and A.19 are close associates of A.1.
4. After the election of the deceased as Sarpanch of the village, records were not handed over to him by A.1, the previous incumbent, and in that connection, a criminal case was filed against A.1 and it ended in acquittal. The appeal preferred to the High Court against the order of acquittal also ended in dismissal. Alleging that A.1 had misappropriated funds belonging to the Panchayat to the tune of Rs. 70,000/-, a news item was got published by PW 1 in the weekly newspaper 'Zamin Ryot' and angered by that, A.1 filed a defamation case unsuccessfully against the deceased Kodandarami Reddi and the publisher of the said weekly. It was also alleged that A.1 had surrendered about Acres 30-00 of land under the Land Ceilings Act and when he made attempts to sell Acres 6-00 out of the said Acres 30-00 of land, the deceased had lodged a complaint with the District Collector and in that connection, an enquiry was conducted by the Joint Collector. PW 1 was the Managing Trustee of Sri Sarvalingeswara Swamy Temple situate in the village to which, in the year 1944, the mother of A.1 had gifted Acres 3.98 cents. But it was alleged that A. 1 did not surrender the said land to the temple. A complaint was lodged by PW 1 with the Deputy Commissioner of Endowments, who, after an enquiry, had directed A.1 to surrender the land and also pay Rs. 2,00,000/- towards past mesne profits to the temple. In the year 1985, when elections were held to the Gram Panchayat, A.1 had contested against the deceased and lost by a margin of 400 votes. Two other instances also were alleged by the prosecution to show that there was sufficient motive for the accused to perpetrate the crime in question. A.9, it appears, had committed acts of indecent assault on the two daughters of one Ranga Swamy, archaka of the local Kodandarama Swamy Temple. In that connection, a Panchayat was held wherein A.9 was questioned but he refused to answer the allegation. The deceased, in the presence of the Panchayatdars, slapped A.9, which was objected to by his brother - A. 10 - saying that the matter could be reported to the police but the deceased had no authority to slap his brother. While leaving that place, A.9, it was alleged, threatened to see the end of the deceased. One Adiseshaiah was beaten in front of the house of the deceased by A.13 to A.15 and some others and when prosecution was launched against them, the deceased and PW 1 figured as witnesses.
5. Briefly, the prosecution case is that the crime in question allegedly occurred on the night of 25-3-1989. The deceased Kodandarami Reddy and PW 2, Ravikumar Reddy, Sarpanch of Musunuruvaripalem, started from Nellore to go to Pidathapolur village at about 9.45 in the night on a motor cycle - Ind Suzuki (MO 1) - belonging to the deceased. PW 2 was sitting on the pillion and the deceased was driving the motor cycle. From the main road junction, they were proceeding towards the village and after they covered a distance of about one furlong, they were way-laid and attacked by the accused. That afternoon, PW 5, Nakka Venkatakrishnaiah, went to Kakupally village to see his daughter and other relations and after taking the night meal, he missed the direct bus and so travelled by another bus and got down at the road junction to proceed by walk to his village. PW 5, while proceeding by walk to reach his village, had seen A.1, A.2, A.4 to A.7, A.9, A.10, A.12, A.13 and A.14 armed with sticks and axes coming in the opposite direction and proceeding towards the scene of offence. The prosecution alleged that A.16 stabbed the deceased. A.11 tried to hit the deceased with an axe but the blow fell on PW 2, Ravikumar Reddy. A.9 and A.10 stabbed the deceased with knives on the abdomen. A.11 dealt a blow with the axe on the neck of the deceased and the other accused beat him with sticks. While A.18 and A.19 were holding the legs and A.5 caught one of the hands of the deceased, his throat was cut by A.9 and thereafter, all of them went away, PW 6, who was watering his ground-nut crop in the field nearby the scene of offence, on hearing the cries emanating from the road side at about 10.30 in the night, rushed to the road side and saw A.1 to A.14 armed with sticks, knives and iron rods going away towards the road centre.
5A. PW 2, Ravikumar Reddy, became unconscious as a result of the head injury sustained by him and when he regained consciousness after some time, he found Kodandarami Reddy, the deceased, dead in a pool of blood, PW 2 then proceeded to a nearby village - Jangalakandrika - at a distance of 2 to 3 furlongs, woke up PW 8, Palagani Bhaskara Reddy and apprised him about the incident. A car was brought by PW 8 in which PW 2 was taken to the Government Hospital, Nellore, where he was admitted as an in-patient. On receipt of information from the hospital authorities a wireless message was flashed by the IV Town Police Station, Nellore to Muthukur Police Station and on receipt of the same, PW 29, Shaik Masthan, Head Constable, reached the hospital and recorded the statement of PW 2, Ex. P.2. He returned to the Police Station and registered the same as Crime No. 13/89 under Sections 302 and 307, IPC and submitted express F.I.Rs., to all concerned. Ex. P. 45 is the F.I.R., sent to the Court. The Judicial First Class Magistrate, Nellore, PW 27, on requisition, went to the hospital and recorded the dying declaration of PW 2, Ex. P.40 at 4.30 a.m., on 26-3-1989. PW 30, Sub-Inspector of Police, on receipt of information, reached the scene of offence at 00.30 hours on the intervening night of 25/26-3-1989 and after searching the scene of offence, could not find anything. On the next day at 6.30 a.m., PW 31, Inspector of Police, on receipt of information, reached Brahmadevam Centre at about 7.30 a.m., and noticed the body of the deceased in a ditch on the south of the road. He also found the motor-cycle, MO 1, chappals, MO 2, spectacles, MO 3, and a blood-stained knife with handle, MO 9, which he seized under a mahazar, Ex. P.10.
6. On requisition from police, Dr. N. R. Sai Kumar, Civil Assistant Surgeon, Government Headquarters Hospital, Nellore, conducted post-mortem on the body of the deceased on 26-3-1989. The doctor noticed nine lacerated injuries, four abrasions and four contusions. Injury No. 1 is a horizontal lacerated one 4" x 2" x 3" on the front of the lower part of the neck. The doctor expressed the opinion that injury No. 1 is sufficient to cause death and that it might have been caused by a sharp edged heavy weapon. He also opined that the other injuries could be caused by various other types of weapons. Ex. P.18 is the post-mortem certificate issued by the doctor. The cause of death, according to the doctor, was due to shock and haemorrhage due to multiple injuries and the time of death was about 18 to 24 hours prior to the post-mortem examination. On requisition by the police, A.9 was examined by PW 21, Dr. Chennaiah, for the scars found on his left hand fingers. Ex. P.20 is the certificate issued by the Doctor expressing the opinion that he could not come to a conclusion regarding the age of the scars.
7. Of the 31 witnesses examined by the prosecution PW 2 was the direct witness to the occurrence. He could not identify any of the assailants as, according to him, he fell down unconscious as a result of the injury sustained on the head. PWs 3, 4, 11 and 14 did not support the prosecution version and so they were treated as hostile. The plea of the accused was one of total denial. The learned Additional Sessions Judge believing the evidence of PWs 5 and 6 and the retracted extra-judicial confession made by A.15 to PW 7 convicted and sentenced the 13 appellants as stated above. A.3, A.8, A.16 to A.19 were acquitted. A.16 to A.19 were acquitted because they were not implicated by PWs 5 and 6. A.3 and A.8 were acquitted because their names were not mentioned by PW 5. A.15 was convicted because of his own confession.
8. In respect of charge No. 5 under S. 307 r/w S. 149, IPC against all the 19 accused for attempting to commit the murder of PW 2, Ravikumar Reddy, the learned Additional Sessions Judge acquitted all of them as PW 2, in his evidence, had not identified any of his assailants.
9. The appeal was heard by a Division Bench of two learned Judges, who were divided in their opinion. While both the learned Judges have accepted the evidence of PW 5 that he had seen A.1, A.2, A.4 to A.7 and A.9 to A.14 proceeding towards the scene of offence armed with sticks and axes at about 9.00 p.m. on the fateful day, they expressed different opinions as to the ultimate result of the appeal.
10. V. Sivaraman Nair, J., was inclined to dismiss the appeal accepting the evidence of PW 6 about his seeing the accused leaving the place immediately after the occurrence and the testimony of PW 7, to whom an extra-judicial confession was made by A.15. According to the learned Judge, PW 6 had seen the accused from a distance of 50 yards while they were proceeding in westerly direction and it was not difficult for him to identify the accused since "he would have seen the accused not from behind but from almost the front side". The evidence of PWs 5 and 6 received corroboration, in the opinion of the learned Judge, from the testimony of PW 7 to whom A.15 has made an extra-judicial confession. There was nothing unusual in the disclosure made by A.15 to PW 7 although they were not related to each other; A. 15 was anxious to make a clean breast of the whole episode and he was in search of somebody to whom he could unburden his sense of guilt and the confession was made to PW 7 who was sympathetic towards him.
11. The other learned Judge - D. J. Jagannadha Raju, J. - has not accepted the version of PW 6 as to his claim that he had seen the accused leaving the scene. "He could have only seen them from behind; he could not have seen their faces", observed the learned Judge. PW 6, according to the learned Judge, is a partisan witness set up by PW 1. He was related to PW 1 - PW 1's wife is the daughter of PW 6's mother's elder sister - and he is also cultivating the lands of PW 1's nephew on lease. PW 6 and his brothers are accused in C.C. No. 10 of 1988 along with PW 1's men and their defence was arranged by PW 1. Apart from this, the version given out by PW 6 that after seeing the accused going away armed with deadly weapons, he ran back out of fear and hid himself in the field and again he came back was disbelieved by the learned Judge observing that if really he came back again, he would not have missed finding the dead body of the deceased and PW 2 in an unconscious state and also the motor-cycle. Commenting on the evidence of PW 7 about the extra-judicial confession said to have been made to him by A.15, the learned Judge observed :
".......... There is nothing to indicate that PW 7 is the person in whom A.15 was in the habit of confiding things or taking guidance. In the very nature of things, a Harijan accused (A.15) who is in no way connected with PW 7 would not confide in him. There is no special reason for him to confess. It cannot be said to be a voluntary confession".
The learned Judge reached the conclusion that the prosecution only established the enmity between the group led by A.1 and the group led by PW 1 and that on the fateful night, PW 5 had seen the appellants coming from the opposite direction armed with sticks and axes but failed to establish the guilt of the accused. Accordingly, he was inclined to hold that the accused-appellants should be given the benefit of doubt and they are entitled to be acquitted.
12. Sri Padmanabha Reddy, learned counsel for the appellants, contends that although on the aspect of motive there is sufficient evidence, that by itself cannot be a circumstance to draw the inference - in the absence of other acceptable testimony - that the appellants are the perpetrators of the crime in question since the very same motive factor could also be instrumental in implicating the appellants. The evidence of PWs 5 and 6 suffers from several serious infirmities and they being partisan witnesses, no credibility should be given to what they stated. The retracted extra-judicial confession said to have been made by A.15 to PW 7 does not merit acceptance and deliberately the prosecution has introduced this feature for the purpose of implicating A.15 to A.19, whose alleged presence at the scene was not spoken to by PWs 5 and 6.
13. Controverting these contentions, Sri Bhagiratha Rao, learned Public Prosecutor, says that the appellants have sufficient motive to commit the crime. The evidence of PWs 5 and 6 cannot be thrown out on the ground that they are partisan witnesses. There was no time for deliberations for implicating any innocent person and the presence of A.1 to A.14 was spoken to by PWs 5 and 6 at the time of inquest on 26-3-1989 at the earliest point of time.
14. It is not necessary for me to advert to the evidence on the question of motive as it is fairly admitted by both sides that there were factions between the two groups eversince the deceased was elected as Sarpanch of the Gram Panchayat. Both sides were enmeshed in civil and criminal litigation especially after 1985 when the deceased had defeated A.1 by a margin of 400 votes in the elections to the office of Sarpanch of the Gram Panchayat. When there are open hostilities between two groups, the motive factor may propel one side to indulge in crime and the same factor may possibly also induce the other group to implicate their rivals. It is, therefore, imperative to subject the testimony of the prosecution witnesses to strict scrutiny.
15. The scene of offence is at a distance of one furlong from the branch road as spoken to by PW 31, Inspector of Police. At about 10.30 in the night, the offence took place. According to PW 2, he and the deceased had left Nellore at about 9.45 p.m., on 25-3-1989 on a motor-cycle. The deceased was driving the vehicle and he (PW 2) was on the pillion. He says that when they covered a distance of one furlong from the road junction, one person aimed a blow on the deceased but as the latter escaped, it fell on his head above the left ear. He fell down immediately on the road and lost consciousness. After he regained consciousness, he found Kodandarami Reddi (the deceased) dead in a pool of blood. He could not identify any of his assailants. Evidently, after he fell down, he was attacked with sticks and knives and this is clear from Ex. P.16, wound certificate, issued by Dr. B. Rajeswari, who examined him on that very night itself in the early hours at 1.30 at the Government Hospital, Nellore. The wound certificate, Ex. P.16, shows as many as six incised wounds, four abrasions and one contusion. Beyond establishing that the occurrence took place at about 10.30 in the night on 25-3-1989 on the road leading to Pidathapolur at a distance of about one furlong from the road junction, the evidence of PW 2 does not indicate anything more. That is the reason why the prosecution is relying, primarily, upon the testimony of PWs 5 and 6 to connect the appellants with the crime in question.
16. PW 5 is a resident of Pidathapolur and an agriculturist by profession. On 25-3-1989 at about 2.00 p.m., he went to Kakupally village to see his daughter and other relations. It took about half-an-hour by bus for him to reach Kakupally and in the evening, when he wanted to return at about 5 O'clock, his daughter insisted that he should eat night meal and go as she prepared fish curry. After taking his night meal at about 8 O'clock in the night, he came to Kakupally bus stand to go to Pidathapolur. He was informed that there was no direct bus available to go to Pidathapolur and so he got into a bus which was proceeding to Muthukur and got down at the road junction from where he was proceeding by walk to the village - Pidathapolur - which is at a distance of about 1 1/2 miles from the road junction. After he crossed Ratnam College, he noticed A.1, A.2, A.4 to A.7 and A.9 to A.14 coming in the opposite direction armed with sticks and axes. On seeing them, he was fear-stricken and went home and slept. The next day morning at 6.30, when he woke up, he came to know that Kodandarami Reddy was murdered.
17. PW 5 belongs to the group of the deceased. He was figuring as A. 8 in C.C. No. 10 of 1988 on the file of the Special Mobile Magistrate's Court, Nellore in which the deceased and PW 1 were A.2 and A.1 respectively; Ex. P.3 is the certified copy of the judgment. He was also a co-accused along with PW 1 and the deceased in C.C. No. 207 of 1987 in which the complainant was A.4 in this case. C.C. No. 10 of 1988 arose out of Crime No. 44/87 registered by the Muthukur Police Station on a complaint lodged by the present first appellant (A.1) under Sections 147, 148, 427 and 324 r/w 149, IPC. There is a counter case - C.C. No. 9/88 - in which the present first appellant (A.1) was figuring as an accused. When there are factions in the village and when PW 5 had noticed the opposite group people armed with sticks and axes and proceeding in a group, in the normal course it was expected of him to inform the same to PW 1, the father of the deceased and the leader of their faction. What he claimed to have seen was not a routine occurrence; his evidence that he slept at home without informing anybody as to what he had seen does not sound natural. One more infirmity of a serious nature discernible in his evidence is that he did not state before the police that he stayed on in Kakupally village that evening to eat night meal at his daughter's house on her insistence. Of the 19 accused tried in this case by the learned Additional Sessions Judge, A.11, A.12, A.16, A.18 and A.19 are residents of Nellore. Strangely, PW 5 had identified A.11 and A.12 also as two of the 12 assailants he had seen on the night in question. He could not have seen closely the 12 assailants for the reason that had his presence been noticed by any of the 12 assailants, who admittedly belonged to the opposite faction, his life itself might have been in jeopardy. By a few moments of observation - assuming that such a keen observation was made by PW 5 - it could not have been possible for him to identify persons who are utter strangers like A. 11 and A.12. One more suspicious feature in his evidence is that he did not identify A.15, a resident of Pidathapolur, as one of the assailants and this assumes vital significance in view of the assertion of the prosecution that A.15 to A.19 also had participated in the commission of the crime as confessed by A.15 in his retracted extra-judicial confession made to PW 7. That PW 5 was examined at the inquest on 26-3-1989 and in his statement, he suspected A.1 to A.14 does not, in my view, lend credence to his testimony.
18. The other witness on whom the case of the prosecution is founded is PW 6, a resident of Pidathapolur. On the night in question, he claimed to have engaged in watering his ground-nut crop in the field near the scene of offence. On hearing the cries emanating from the road side at about 10.30 or 10.45 on that night, he rushed to the road side and saw A.1 to A.14 going towards the road junction (Brahmadevam Road Centre) armed with sticks, knives and iron rods. Due to fear, he ran back to his field to hide himself and after sometime, he came back to the road again but did not find anything. He, thereafter, went to his field to water the ground-nut crop. It was only on the next day morning when several people gathered near the road, he went and saw the body of the deceased. The distance between the spot where the body of the deceased was found and his field, according to him, is 200 yards.
19. Like PW 5, he (PW 6) is also one of the accused in C.C. No. 10/88 along with PW 5, PW 1 and the deceased. He was one of the accused in C.C. No. 207/88 along with PW 5 and others. There is absolutely no doubt that he belongs to the faction of PW 1 although he denied in his cross-examination that he was having cordial terms with PW 1 stating that the latter knocked away his property. He is related to PW 1 - the latter's wife is the daughter of PW 6's mother's elder sister. Even this relationship also he attempted to deny in his cross-examination. PW 6 claimed that he was the lessee of Acres 2-00 of land belonging to Prapulla Chandra Reddy and at the time of the incident, he was watering the ground-nut crop in that field. No evidence was adduced whether that land was really leased out by Prapulla Chandra Reddy to PW 6. Ex. P.46 is the rough sketch of the scene of offence prepared by PW 31, the Investigation Officer. The land of Prapulla Chandra Reddy is shown on the North-Western side of the road. One more land also PW 6 was cultivating in which he had raised ground-nut crop and that land is nearby the scene. There is no evidence as to who is the owner of that land. The width of the road is 20.6 ft. Abutting that, there is a fallow field belonging to Prapulla Kumar Reddy, the width of which is 58 ft. Mamidipudi canal flows by the side of this fallow field. The width of the canal is about 60 ft. There is a bridge on the canal to reach the bunglow of one Dasaradharami Reddy towards the south. This bunglow is also known as Mohanamma's bunglow (Mohanamma is the wife of Dasaradharami Reddy). PW 6's evidence is that by the time he came to the road on hearing the cries, the accused had crossed Mohanamma's bunglow. Even assuming that Mohannama's bunglow is 20 ft., away from the canal and as the accused had already crossed that bunglow by the time they were seen by PW 6, the minimum distance from which PW 6 could have seen the accused was 150 ft. After the attack, the accused were going away from the centre and even assuming that PW 6 really came to the road side on hearing the cries, he could have seen only from behind, a group of people going away. It is impossible to identify persons from behind and that too from a distance of 150 ft., even in bright moon lit night. The incident happened on the third day after full moon day and this was admitted by both sides after looking into the Telugu calendar. From what distance a person could be identified in bright moon lit night, Dr. Modi says :
"According to Tidy, the best known person cannot be recognised in the clearest moonlight beyond a distance of seventeen yards. Colonel Bary, I.M.S., is of opinion that at distances greater than 12 yards, the statue or outline of the figure alone is available as a means of identification. To define the features even at shorter distance is practically impossible by moonlight". (1)
20. PW 6's version that out of fear he ran back to the field and came to the road after sometime but did not find anything appears to be not true. PW 2, the injured witness, says that when he regained consciousness, he found the body of the deceased, Kodandarami Reddy in a pool of blood. When PW 1, the father of the deceased, reached the scene, he also saw the body "lying on the south of the road". He also noticed the motor-cycle and the personal belongings of the deceased nearby. The learned Public Prosecutor says that because the body and the motor-cycle were in a ditch, the same were not noticed by PW 6 and in support of this, the evidence of PW 31, the Investigation Officer, is relied upon. In his evidence, PW 31 says that "the body of the deceased is found in a ditch on the south of the road". It is doubtful whether the body was in a ditch since it was not spoken to by either PW 1 or PW 2. Even assuming that the body of the deceased and the motor-cycle were found in a ditch by the side of the road, as it was a moon-light, PW 6, who claimed to have come to the road, would not have missed noticing the same. Like PW 5, this witness also had claimed to have seen A.11 and A.12, residents of Nellore and total strangers to him, among the assailants.
21. One more serious infirmity which renders PW 6's version untrustworthy is that he did not inform PW 1 that night about the incident. Even on the next day morning, when he went to see the dead body, he did not inform anyone, not even PW 1, as to what he had seen the previous night, although he belongs to the faction of PW 1 and also related to him. Although he was one of the first persons examined by the Investigation Officer, PW 31, his statement was not recorded under S. 161, Cr.P.C.
22. When the evidence of PWs 5 and 6 does not merit acceptance, what remains to be considered is the retracted extra-judicial confession allegedly made by A.15 to PW 7. PW 7, Rajaram Reddy, is a resident of Pidathapolur village and an agriculturist by profession. It is his evidence that on the morning of 26-3-1989, he went to the scene of offence and saw the dead body of Kodandarami Reddy. On the next day, i.e., 27-3-1989, he went to another village - Musunuruvaripalem - and while he was returning from that village at about 4.00 p.m., he met A.15 and questioned him as to where he (A.15) was going ? The reply given by A.15 was that as the police were chasing him, he wanted to go to Krishnapatnam village. On being asked why he wanted to go to Krishnapatnam A.15 narrated the entire sequence of events : The deceased calling A.9 on the complaint given by the Pujari of Kodandarama Swamy Temple about the indecent assault on his two daughters by A.9. Their meeting at the house of A.1 one week prior to the incident and the conspiracy to do away with the deceased - Kodandarami Reddy. On the morning of 25-3-1989, A.15 went to the house of A.9 and the latter asked him to stay at home and that he would see him at 5.30 p.m. Accordingly, A.9 came to A.15's house at 5'O clock in the evening and they both went to the house of one Shaik Masthan, a cycle shop owner of Pidathapolur village, from whom they hired a cycle and went to Muthukur road junction and stayed there till 8.00 p.m. A.10, the brother of A.9, came by bus from Nellore and got down at the junction and informed both of them that "our people are coming by car" and asked them to bring people from the village. Both of them thereafter came to the village, went to the house of A.1 and the latter asked A.15 to return the cycle to Shaik Masthan. After the cycle was returned by A.15, he went to the house of A.1. From there, A.1, his sons, A.4 and A.5, A.6, A.7, A.8, A.11 and some others went towards the road and when they went towards the road, a car coming in the opposite direction stopped on the road margin. From the car, A. 16, A.18 and A.19 got down and went to a nearby tree and talked. Then A.1 instructed his son, A.3, A.4 and A.7 to carry the instructions and they all went near the channel and sat there near the tree at the road margin. At that time, the deceased Kodandarami Reddy and PW 2 came by a motor-cycle and A.16 stopped the motor-cycle with a request to give lift. When the motor-cycle stopped, A.16 stabbed Kodandarami Reddy and A.11 tried to beat Kodandarami Reddy with an axe but the blow fell on PW 2, Ravikumar Reddy, and he fell down. After PW 2 fell down, A.10 stabbed Kodandarami Reddy on the abdomen with a knife. A.11 axed on the neck of Kodandarami Reddy and some others also beat Kodandarami Reddy with sticks and he died. Later, while A.18 and A.19 were holding each leg of the deceased Kodandarami Reddy, and A.5 the hand of the deceased, his throat was cut by A.9. Later, all of them went away. Continuing this narration of events as disclosed by A.15, it was stated by PW 7 that on the very same day, i.e., 27-3-1989, he informed the police as to what A. 15 told him and his statement was recorded. A.15 went back on his confession.
23. How far this retracted confession of A.15 can be used against the accused is the question to be considered. Confession is a direct acknowledgment of guilt. Section 24 of the Evidence Act lays down that a confession made by an accused person is irrelevant if it appears to the court that it has been caused by any inducement, threat or promise from a person in authority, sufficient in the opinion of the court, to make the accused person believe that by making such a confession he would gain an advantage with reference to the proceedings against him. There is no legal bar to convict an accused on the basis of voluntary confession. But it is settled law that the rule of prudence requires that whenever possible, the confession should be corroborated by independent evidence. When more persons than one are tried jointly for the same offence, S. 30 lays down that the confession made by one of the persons affecting himself and others is proved, the court may take into consideration the confession as against the other persons as well as against the maker of the confession. In Narayana Swami v. Emperor, (1939) 40 Cri LJ 364 : AIR 1939 PC 47 at page 52, it was held :
"........ no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession ........."
24. While it is urged by Sri Padmanabha Reddy, learned counsel for the appellants, that the confession of A.15 should be rejected on the ground it is exculpatory, the learned Public Prosecutor says that it is inculpatory in that A.15 had admitted that he was a member of the unlawful assembly, the common object of which was to cause the death of Kodandarami Reddy about which he was fully aware and as the object has been achieved, he is liable to be convicted along with the rest of the members of the unlawful assembly under S. 302 r/w S. 149, IPC.
25. A close scrutiny of the testimony of PW 7 shows that the confession allegedly made by A.15 is really not exculpatory although, at first sight, it appears to be so; he admitted his knowledge of the conspiracy and the passive role played by him in the perpetration of the crime. On this ground can the accused be convicted ? The answer is emphatically, in my view, in the negative. In Haricharan Kurmi v. State of Bihar, , speaking for a five-Judge Bench, the learned Chief Justice Gajendragadkar observed :
"......... it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case, where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right".
Comparing the effect of a confession made under S. 30 of the Evidence Act with that of the testimony of an accomplice and after observing that the testimony of an accomplice is evidence under S. 3 of the Evidence Act, although it is of a tainted character and as such very weak but nonetheless it may be acted upon subject to the requirement that it is corroborated in material particulars, the learned Chief Justice stated the rule thus :
"The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused person, the court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. The difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well understood and well established".
26. The other evidence relied upon by the prosecution - testimony of PWs 5 and 6 - I have already held, suffers from fatal infirmities and, therefore, cannot be relied upon. I am not inclined to give any credence to the so called retracted extra-judicial confession of A. 15. With regard to the maker, i.e., A.15 himself, there is no corroboration. PWs 5 and 6 do not speak about his presence. With regard to the rest of the accused - other than A.15 - the testimony of the two witnesses - PWs 5 and 6 - totally lacks credibility.
27. A.15 is a stranger to PW 7. Either politically or socially, they do not appear to have any association let alone closeness. A.15 is a Harijan whereas PW 7 is a Reddy by caste. It is not possible to believe that the mere asking by PW 7 acted as a catalyst to make A.15 unburden himself. It must be noticed in this context that by 27-3-1989, A.15 was not figuring as an accused; his name was not mentioned by the witnesses examined at the inquest on the previous day, i.e., 26-3-1989. Why did, in such a situation, A.15 make a voluntary confession about his presence to PW 7, who was in no way associated with him ? PW 7 claims that on the same day, i.e., 27-3-1989 he informed the police as to the confession made by A.15. This is totally incorrect. It is admitted by the Investigation Officer, PW 31, that he recorded the statement of PW 7 only on 28-3-1989. I am, therefore, inclined to accept the submission of Sri Padmanabha Reddy that the alleged extra-judicial confession made by A. 15 to PW 7 was introduced at a later stage to implicate A.15 to A.19 since there was no reference to their names in the inquest report, Ex. P.9.
28. The evidence adduced by the prosecution, in my opinion, bristles with fatal infirmities and so, it cannot be acted upon for connecting the appellants with the crime in question. The appeal should, therefore, be allowed and the judgment of the learned Additional Sessions Judge convicting the accused-appellants must be set aside. They shall be released forthwith if not required in connection with any other case.
29. The Registrar (Judicial) shall obtain orders of the Hon'ble the Chief Justice for posting this case before the Division Bench comprising V. Sivaraman Nair and D. J. Jagannadha Raju, JJ., to pronounce their judgment following this opinion under S. 392, Cr.P.C.
Sivaraman Nair and D.J. Jagannadha Raju, JJ.
30. In the light of the opinion of the third Judge, Justice M. N. Rao, the appeal is allowed. The convictions and sentences of the accused-appellants are set aside. They shall be set at liberty forthwith, if they are not required in connection with any other case.
31. Appeal allowed.