REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 174 OF 2004

Pantangi Balarama Venkata Ganesh …. Appellant

Versus

State of Andhra Pradesh …. Respondent

WITH

CRIMINAL APPEAL NO. 173 OF 2004

State through C.B.I. …. Appellant

Versus

Vistaria Prakash …. Respondent

J U D G M E N T

S.B. SINHA, J.  

1. Magunta  Subbarama  Reddy  (for  short  Subbarama  Reddy)  was  a  

Member of Parliament from Ongole Constituency in the State  of Andhra  

Pradesh.  He had a gun man, named Ch. Venkataratnam.  Subbarama Reddy  

was  a  Philanthropist.   He  established  24  Colleges  in  the  Prakasam  and

Nellore Districts of Andhra Pradesh.  He otherwise donated a huge amount  

to a number of institutions. He was a resident of Bhagyanagar in the town on  

Ongole.   

2. Subbarama Reddy reached Ongole on 1st December, 1995. He went to  

a place known as Markapur on the same date to attend a function.  He was to  

attend two more functions in the afternoon in the town of Ongole.  PWs. 2  

and 3 came to invite him to attend the functions to be held at Islampet in the  

town of Ongole.  While he was in his bed room, PWs. 1 to 3 went inside the  

bedroom and  at  the  same  time  PW 13 also  went  inside  the  room.   Ch.  

Venkataratnam, gunman, was standing outside the door.  While all of them  

were coming out from the bedroom of Subbarama Reddy, PW 1 found four-

five  persons  having  pistols  standing  there.   Pantangi  Balarama  Venkata  

Ganesh, A-1 was said to be having a gun in his hand.  The assailants fired at  

Subbarama Reddy and his gunman.  PWs. 1 and 2 are also said to have  

sustained  bullet  injuries.   A-1  was  identified  as  a  person  wearing  pink  

coloured  shirt.   The  gunman  allegedly  fired  a  shot.   Pursuant  thereto  

appellant sustained bullet injuries.  They escaped in a white Ambassador Car  

bearing registration No. AAK-7041.  

3. One J. Srinivasa Rao, an Armed Police Constable, per chance, came  

near  the place of  occurrence  and witnessed the  assailants  escaping in  an  

Ambassador Car.  However, the assailants made their escape good.

4. Accused No.1 was arrested on the same day from a cashew garden  

with a bullet injury in his stomach.  He was arrested and sent to hospital for  

treatment.   

5. Subbarama  Reddy  died  at  1600  hours  while  his  gunman  Ch.  

Venkatarantam died at 1800 hours on the same date i.e. 1st December, 1995.  

Accused  No.2  was,  however,  arrested  on  15th December,  1995  from  

Uppugunduru  railway station.   

6. FIR was lodged by PW-1, Tatirparthi Subba Reddy,  on 1st December,  

1995 at about 1800 hours.  

7. Initially eight persons were made accused.  Two of them are said to  

have died.  Four having absconded could not be put on trial.   

8. After the arrest  of accused No.1 he made a declaration which was  

treated to be a dying declaration; the correctness whereof is not in question.

9. It  is  also  not  in  dispute  that  a  pistol  with  two  live  rounds  were  

recovered from accused No.1.   They were sent for scientific examination.  

D.N.A. test was conducted.   

Dr.  G.V.  Rao,  who  was  examined  as  PW-46,  submitted  a  report,  

opining:-

“Result of examination :

The DNA profile  of  exhibits  1,  2,  3 & 11 were  tallying with each other and are from one and the  same source.  Exhibits 1, 2, 3 & 11 do not tally  with the rest of the exhibits.

Exhibits 4, 5, 6, & 7 were tallying with each other  and are from and the same source.  Exhibits 4, 5, 6  & 7 do not ally with the rest of the exhibits.

Exhibits 13, 14 & 15 are tallying with each other  and are from one and the same source.

Exhibits 16 & 17 are tallying with each other and  are from one and the same source.”  

10. A pink colour shirt was seized from the abandoned car.  The blood  

stains on the shirt was found to be matching with the blood group of accused  

No.1.

11. One Shri G. Raj Gopal Reddy, an Assistant Director of State Forensic  

Science  Lab carried  out  an investigation  in  respect  of  the  pistol  and the  

cartridges seized, which were marked as MO 16 and MO 17.  He stated that  

catridge cases item 6 (MO 18) and spent bullets of item 7 and 35 (MO 19  

and 16) must have been fired from item 1 (MO 23).   

12. Accused No.2 was said to be the owner of Ambassador Car No. AAG-

8300.  He allegedly had changed the number plate of the car to  AAK – 7041  

which was said to have been used by the accused for the purpose of escape.  

PW-9,  N.  Subbayamma;  PW-10,  Ch.Laxminarsimhan,  PW-11,  Yada  

Srinivasa  Rao  and  PW-58,  Y.  Chellathurai  were  examined  by  the  

prosecution to show that accused No.2 not only changed the number of the  

car ; he was driving the same.  However, as the said car had broken down,  

the accused tried to hijack another car.  They were, however, not successful  

in  doing  so.   A  taxi  bearing  No.  AEE-2999  driven  by  PW-11,  Yada  

Srinivasa Rao, was stopped and the said taxi was used for making good of  

their escape.  PW-11, the driver of the taxi, stated that at gun-point he was  

threatened to get down from the car.  The other persons, who were in the car,  

also were asked to get down.  At gun point, the taxi, which belonged to him,  

was taken away.

13. Before  the  learned  trial  Judge  58  prosecution  witnesses  were  

examined;  117  documents  were  exhibited;  167  material  objects  were  

produced.  Some documents were also brought on record on behalf of the  

defence which were marked as D-1 to D-6.  

14. Both the accused were found to be guilty by the trial Judge.  Accused  

No.1 was sentenced to life imprisonment for the offences under Sections  

302, 120-B as also under Sections 449, 307 read with Section 149 of the  

Indian  Penal  Code  and  Section  27(2)  of  the  Arms  Act.   He  was  also  

sentenced to undergo rigorous imprisonment for one year for the offence  

under Section 147 of the Indian Penal Code ; rigorous imprisonment for two  

years each for the offences under Section 148 and 506 of the Indian Penal  

Code ; rigorous imprisonment for seven years for the offences under Section  

397 of the Indian Penal Code and rigorous imprisonment for five years for  

the offence punishable under Section 25(1-A) of the Arms Act.  

15. Accused No.2 was also found guilty of the offences and sentenced to  

life each for the offences under Sections 302 ; 120-B, 302 read with Section  

149;  307  read  with  Section  149  of  the  Indian  Penal  Code;  rigorous  

imprisonment for seven years for the offence under Section 397 of Indian

Penal Code; rigorous imprisonment for two  years for the offences under  

Sections 506 of the Indian Penal Code; rigorous imprisonment for one year  

for the offence punishable under Section 147 of the Indian Penal Code and  

rigorous  imprisonment  for  five  years  for  the  offence  punishable  under  

Section 25(1-A) of the Arms Act.  

All sentences were, however, directed to run concurrently.  

16. Aggrieved by and dissatisfied with the said judgment of conviction  

and sentence, an appeal was preferred by the accused before the High Court  

of Andhra Pradesh.  Whereas the appeal of accused No.1 was dismissed but  

that of the accused No.2 was allowed.

17. Before us Accused No.1 is the appellant in Criminal Appeal No.174  

of 2004. The State through Central  Bureau of Investigation has preferred  

Criminal Appeal No.173 of 2004 against the judgment of acquittal passed in  

favour of accused No.2 – Vistaria Prakash.  

18. Mr. Rajinder Sachar, learned senior counsel appearing on behalf of  

accused No.1 principally raised the following contentions :-

1)Appellant, although does not deny or dispute that he was present at the  

scene  of  occurrence,  but  came  only  for  the  purpose  of  persuading  

Subbarama Reddy to recommend opening of a PG Centre.  

2)As, from the evidence of the prosecution witnesses, it  would appear  

that firing took place only on the corridor; the prosecution did not explain  

as to how blood was also found in the bath room.

3)Prosecution witnesses having not participated in the Test Identification  

Parade and they having identified the accused for the first time in Court,  

no reliance thereupon could have been placed by the courts below.   

4)Identification of the appellant  with reference to pink shirt,  allegedly  

worn by him, cannot be said to have been proved as PW.1 did not refer  

that  accused  No.1  had  on  his  person  a  pink  shirt  either  in  the  First  

Information Report or in his statement under Section 161 of the Code of  

Criminal Procedure.

5)Although, according to PW-2, Channaredy Penchal, accused No.1 had  

fired  at  all  the  four  people,  namely  two  deceased;  Ratnam and  him,  

however, from the evidence of the Ballistic Expert, it is evident that two  

fire arms were used therefor and, thus, his evidence could not have been

relied  upon,  particularly  when  PW-3  did  not  indicate  as  to  who  had  

actually fired the shot.   

6)It  is  unusual  that  no  bullet  was  recovered  from  the  body  of  the  

deceased and if the fire arm was used by accused No.1 for killing two  

persons and causing injures to others, it has not been explained as to why  

only two bullets were recovered.  

7)No  reliance  could  be  placed  on  the  evidence  of  PW-58,  the  

investigating officer as regards collection of blood stains.  

8)The correctness of DNA test, even according to expert being 96.4 %  

correct and four people having not been arrested at all, no reliance could  

be placed thereupon.

9)In any event as the report suggests that the blood group of the appellant  

and  the  one  which  was  found  on  the  pink  shirt  was  similar  and  not  

identical; no reliance could be placed thereon.  

19. Mr.  Amarendra  Sharan,  learned  Additional  Solicitor  General  

appearing on behalf  of  the  Central  Bureau of  Investigation,  on the  other  

hand, would contend :-

1)That the prosecution has proved its case not only through cogent ocular  

evidence but also by examining the DNA and Ballistic experts.

2)Indisputably the accused No.1 was arrested from a cashew garden in an  

injured  condition  with  a  revolver  and  his  presence  at  the  scene  of  

occurrence  being  admitted  as  also  the  fact  that  he  was  a  member  of  

Peoples  War  Group,  sufficient  evidence  must  be  held  to  have  been  

brought on record to prove his guilt.  

3)The High Court committed a serious error in recording a judgment of  

acquittal so far as accused No.2 was concerned in so far as it failed to  

take  into  consideration  not  only  the  evidence  of  PW-10,  a  police  

constable who had proved his presence but also the taxi driver, PW-11  

and  Smt.  Nagineni  Subbayamma,  PW-9,   the  landlady  of  one  of  the  

conspirators,  as  also  several  documents  proved  on  behalf  of  the  

prosecution which categorically show that accused No.2 was the owner  

of the car and he had changed the colour thereof.  

20. Mr.  Pamod Swarup,  learned amicus  curiae,  appearing on behalf  of  

accused No.2, contended:-

1)The  name  of  accused  No.2  having  not  been  mentioned  in  the  first  

information report, and as PW-1 and PW-2 could not identify him; the  

judgment of the High Court does not suffer from any infirmity.

2)The only evidence against accused No. 2 being that of PW-9, PW-10  

and  PW-11,  which  having  not  been  found  reliable  and  as  the  said  

witnesses  could  not  identify  him,  no  interference  with  the  impugned  

judgment is warranted.    

21. The fact  that two persons had lost their  lives and PW-1 and PW-2  

suffered injuries at the hands of some miscreants at about 1400 hours on 1st  

December, 1995 is not in dispute.  It is also not in dispute that immediately  

after the occurrence a search was carried out.  Accused No.1 was arrested on  

the same day from a cashew garden with a gun shot injury in his stomach.  

22. It is also not in dispute that a car bearing No.  AEE 2999 was found  

abandoned near Kadavakuduri.  There is also no in dispute that recovery of  

several articles was effected from the place of occurrence including bullets,  

cartridges of various caliber; blood etc.  It has also not been disputed that a  

car  bearing  No.AAK 7041 was  found at  the  Kurnool  bye  pass  Junction,  

Ongole at about 1930 hours.   The appellant was admitted in the Trauma

Hospital for treatment of his injury.  As indicated heretobefore, he made a  

statement before the VIth Additional Magistrate, Guntur.   

Following questions were put to him by the learned Magistrate so as  

to satisfy himself that he was in a fit condition to make the statement:-   

“(1) What is your name?

Ans. Panthangi Ganesh.

(4) What do you do?

Ans. I am an unemployed.  Presently working as  activist in Ganapathi Group of Peoples War Group.

(5)Where do you reside?

Ans. Working  for  public  and  for  our  party  in  Bellamkonda  and  Atchampeta  Mandals  of  Sathenapalli Taluqa.

(6) Can you tell as to how did you sustain these  injuries?

Ans. I will.

(7) I am the VI Additional Court Magistrate of  Guntur.  I came to record your statement as  to how did you sustain these injuries.   Do  you understand?

Ans. I understand as you said it.

(8) Then, are you in a position to reveal as to  how did you sustain these injuries?

Ans. Yes, I will reveal.

(9) Then, tell me.

Ans. As per the instructions of our party, I went  to  Ongole  on  1.12.95  in  the  after  noon at  about 1.30 hours to know the movements of  Magunta  Subbaramireddy  at  his  residence  and as to how close he is moving with the  public.   There at  about 1.30 hours to 2.00  hours,  I  sustained one Bullet  injury to my  stomach.   I  do  not  know,  who  fired  the  Bullet  and from where it  had come.  Soon  after sustaining Bullet injury I fell down and  lost my consciousness.  After one or one and  half  hour,  I  re-gained  my  consciousness.  When I regained my consciousness, I was in  a  Cashewnut  Garden.   Probably  our  Activists might have taken me to that place.  The police came there and caught me.  The  police caught me at the time between 3.00  hours  to  3.30  hours.   Thereafter  duly  interrogating me they brought me to Guntur  Hospital  and admitted  me herein.   This  is  what all happened.”

23. The First Information Report which was lodged by PW-1, Tatirparthi  

Subba Reddy, reads as under:-

“I belong to 3rd Line of Bhagyanagaram, Ongole, I  am eking out my livelihood by doing agriculture.  I  am sympathizer of Congress Party.  I move closely  with  the  Ongole  M.P.,  Sri  Magunta  Subbarami  Reddy, Whenever I come Ongole, I used to meet  him.  Today i.e. 1.12.95 in the After Noon at 1.50

hours,  the Ongole M.P.Sri  Magunta Subba Rami  Reddy,  Kandukur  Ex.  MLA  Sri  Maheedhara  Reddy  and  myself,  after  discussing  party  issues  i.e., about the Programme of that evening, first of  all the M.P., started to go out of the Bed Room,  behind  him  myself  and  Maheedhar  Reddy  following us, and when the M.P. were crossing the  Bed Room, we listened fire from Revolver.   On  listening  the  said  noise,  I  came  in  front  of  the  M.P.; one person from out side the room fired the  pistol  in his  hand towards the M.P.,  and when I  plunged between them, I sustained bullet injury to  my right  hand wrist.   Thereafter  the said person  fired  Bullets  on  the  M.P.,  and  the  M.P.  fallen  down.  Then the M.P.’s Gunman Venkatarathnam  fired bullets on the said person and the said person  returned fire on Venkata Rathnam, the Gun man  sustained bullets and fell down.  The said person  also  fired  on  Chennareddy  Penchala  Reddy  who  was behind me.  He also sustained bleeding injury.  The person who fired bullets on us, left alongwith  the  five  persons  accompanying  him  and  while  running away, they fired their pistols into air and  created  panic  among  the  people  present  thereat,  and  they  ran  away  in  a  white  ambassador  car  bearing No. AAK 7041.  The said persons are of  the age group of 20-25 years.  When this incident  occurred  the  M.P.’s  P.A.  Mr.  Nagabhushanam,  Ongole  Municipality  Chairman  Mr.  Mantri  Srinivasa  Rao,  Vice  Chairman  Sikhakollu  Ravi,  Aiyinabathina  Ghana  Syam,  Balineni  Venkateswara  reddy  and  some  more  people  witnessed.   I  can  identify  the  persons  who fired  bullets on us.  Immediately, the second Gun Man  of the M.P., Srinivasa Rao and some others have  brought  us  the  injured  in  Cars  to  Ongole  Government  Hospital  for  treatment  and admitted  us.  While the doctors are giving treatment to us  the  M.P.  lost  consciousness  he  has  been  taking

treatment  in  the  Hospital.   As  you  came  and  enquired I have revealed what happened.  I have  gone through my statement.  You have mentioned  exactly what I said.  As I sustained bullet injury to  my  right  wrist,  I  have  affixed  my  left  Thumb  Impression.  L.T.I. of Tatiparthi Subha Reddy. “

24. Although initially the investigation was entrusted to C.B.C.I.D. of the  

State of Andhra Pradesh; on or about 12th January, 1996 it was transferred to  

the Central Bureau of Investigation (C.B.I.).   

25. There are four eye witnesses to the incident, i.e., PWs. 1, 2, 3 and 13.   

PW-1, T. Subba Reddy, was examined-in-chief on 1st April, 1999.  He  

stated in details about the travels undertaken by the deceased Subba Reddy  

from the time of his arrival at Ongole in the morning of 1st December, 1995  

till he returned to Ongole from Markapur.  He categorically stated that when  

they were just coming out from the bed room of the MP,  Subba Reddy, he  

saw 4 -5 persons of the age of 25 or so years; one of them had fired at him  

and others.  He could not identify the person fired at him but had stated that  

who had fired at the MP was wearing  pink coloured shirt.  He furthermore  

stated  he  could  not  identify  the  pink  coloured  shirt  worn  by  one  of  the  

assailants.

26. It is true that he did not make any statement that pink coloured shirt  

was  worn  by  the  appellant  in  the  first  information  report  as  also  in  his  

statement recorded under Section 161 of the Code of Criminal Procedure  

(for  short  ‘the  Code’),  but  the  same  in  our  opinion  is  not  of  much  

significance.   

27. The  first  information  report  was  lodged  immediately  after  the  

occurrence took place, namely at 1400 hours.  PW-1 was grievously injured.  

At  that  point  of  time it  was  not  expected  of  him that  he would be in  a  

position  to  make  a  statement  containing  minutest  details.  His  statement  

under Section 161 of the Code must have also been recorded immediately  

thereafter.  

28. PW-2, Channareddy Panchal was also examined on 1st April,  1999.  

He also received injury.  Admittedly he was first taken to the Government  

Hospital,  Ongole  and  thereafter  he  was  shifted  to  Apollo  Hospital,  

Hyderabad.  He was admittedly operated upon and a bullet was removed  

from his body on 4th December, 1995.  In the aforementioned situation it was  

not expected of him that he would make a statement before the police that  

accused No.1, who had fired at him, was wearing a pink coloured shirt.  He  

made such a statement before the C.B.I. Officers.  It is interesting to note

that it was suggested to him that he was at the door of the guest room while  

the MP was proceeding towards the hall near the curtain.   

29. Manthri Srinivasa Rao examined himself as PW-3.  He was declared  

hostile  as  he  went  back  from  his  earlier  statement  made  before  the  

Investigating Officer.  No reliance can be placed on his evidence.   

30. One Manugunta Maheedhara Reddy examined himself as PW-13.  He  

was also an eye witness.  Although he could not identify the accused, he  

categorically stated that the assailant was wearing pink coloured shirt which  

was marked as MO 10.   

 31. So far as the second stage of the commission of offence is concerned,  

namely snatching of the car, PW-10, Cheukuri Laxmi Naersimham, a Police  

Constable was examined.  He was a witness to the attempt on the part of the  

assailants  to  stop  the  Maruti  car  and  being  unsuccessful,  stopped  an  

Ambassador  Car.   According  to  him,  the  driver  of  the  said  car  was  

threatened by showing revolver by one of the miscreants.  The passengers of  

the car as also the driver left the car at that place.  According to him they  

carried an injured person with them in car bearing No. AEE 2999 which was  

being driven by accused No.2. According to him, however, accused No.2

was arrested on the same date  but  as  it  appears  from the record he was  

arrested after 15 days.  We will deal with this aspect of the matter a little  

later.  

32. Yada  Srinivas  Rao,  PW-11,  was  the  owner  of  taxi  which  was  

snatched.  He also lodged the first information report Ext.P-9.  He, however,  

could not identify the persons who snatched his car.  

33. PW-9  Nagineni  Subbayamma,  although  was  the  landlady  of  the  

appellant, deposed that he and his friends used to come by car and go back,  

the number whereof was AAK 7041.  It was a white Ambassador car.  She  

saw the driver  of the vehicle at  10.00 a.m. on 1st December,  1995.  The  

vehicle was parked in front of the house.  She identified accused No.2 as the  

driver thereof.  But in her cross-examination she stated that the people to  

whom she let out the house were not seen by her.  She could not establish  

their identities.  

34. Mr.  Sharan  has  drawn  our  attention  to  some  documents  exhibited  

before the learned trial Judge to contend that accused No.2 purchased the car  

in question.  The said exhibits are as under:-

“Ex. P-99 – Residence Certificate of Accused No.2 issued by  MRO.

Ex. P-100  - Affidavit of Accused No.2 (Notarised)

Ex. P-101 Form 32 for purchase of vehicle AAG 8300

Ex. P-102 Delivery order in respect of Vehicle AAG 8300

         Ex. P-103 Sale order in respect of AAG 8300”

35. It, however, does not appear that the notary before whom the affidavit  

was  sworn  was  examined.   The  said  documents  were  not  proved  in  

accordance with law.  We, therefore,  do not intend to place any reliance  

thereon.  

36. The fact that accused No.1 was a member of Peoples War Group is  

not in dispute.  His presence at the time of incident is also not in dispute.  

His statement before the learned Magistrate which was treated to be a dying  

declaration has not been disputed.  The prosecution witnesses, although were  

not  declared hostile,  except  PW-3,  it  is  evident  that  for obvious reasons,  

before the Court, they did not intend to support the prosecution case fully.  

However,  in a case of this nature the courts below, in our opinion, have  

correctly considered the broad aspects of the matter.  If accused No.1 went  

to the deceased M.P. for recommendation of opening of a PG Centre, he

should have proved the same.  PW-58, Y. Challadurai, Investigating Officer  

stated  that  he  visited  the  premises  in  question  on  14th January,  1996  

alongwith the scientific experts from CFSL, New Delhi.  He also proved the  

collection of blood samples from the floor of the guest room as well as floor  

of the bath room.  Some fingerprints were also obtained.  Another blood  

stained sample was also recovered on the piece of ‘dhoti’ marked as MO-47  

which was found lying inside the car AAK 7041.  He also took the blood  

samples,  finger  prints  and specimen handwriting  of  the accused with the  

assistance of Jail  doctor and Jail  Superintendent.   He also sent the blood  

samples to CCMB, Hyderabad.  He also wrote a letter to Director CCMB,  

Hyderabad  requesting him to give DNA Finger Print Opinion based on the  

blood samples of the accused and other objects vis-à-vis the blood samples  

which were  sent  to  him from Director,  FSL.    He,  on their  advice,  also  

obtained fresh blood samples of the accused on 15th February, 1996.  

37. He proved that blood samples of PW-2 was taken at his instance by  

PW-47.  Similarly blood samples of PW-1 was taken by PW-48.  It was also  

proved that MO-10 was the subject matter of DNA finger print examination.  

Sh. C.B. Satyanarayana, Judicial First Class Magistrate, examined himself as  

PW-55.  He deposed that on requisition from the Casualty Medical Officer

of Govt. General Hospital, Guntur he had recorded the statement of accused  

No.1  which was marked as Ex. P-96.  He was not cross-examined.  His  

evidence, therefore stood admitted.  

38. Dr. G.V. Rao, PW-46, conducted the D.N.A. Test.  Indisputably blood  

stains on a pink colour shirt and other material objects, in view of his report  

(Ext.86) it stands established that the blood samples of the shirt tallied with  

that of the appellant.   

39. PW-49, G. Rajagopal Reddy, is a ballistic expert.  He examined the  

pistol which is of 0.45 inch caliber seized from the possession of accused  

No.1.   It  was  marked as  M.O.  23.   In  the  opinion  of  PW-49 the  bullet  

removed from the body of PW-2 was released from a 0.45 inch caliber pistol  

and it was fired from M.O. 23.  The live cartridges which were seized from  

the appellant being also of 0.44 inch caliber could be fired from the pistol  

belonging to the appellant.   The exhibits of entry on M.O. 9 and M.O. 10,  

according to the said witness were also caused by 0.45 inch caliber bullet.  

The fact that the bullet which was recovered from the person of PW-2 and  

the features of the weapon and the live cartridges seized from the appellant  

were same, categorically goes to show that the shots were fired from the  

pistol marked M.O. 23.   

40. Drawing attention to paragraph 14 of the judgment of the learned trial  

court,  it  was  urged  by  Mr.  Sachar  that  therein  it  has  been  incorrectly  

recorded that the bullet was recovered from the body of deceased Subbarama  

Reddy.   It  is  so  but  while  discussing  the  evidence  the  learned  Judge  

categorically noticed that  the said bullet  was recovered from the body of  

PW-2.    

41. As the bullet from the body of PW-2 was recovered by the doctor of  

Apollo Hospital at Hydeabad, who was also examined by the prosecution as  

PW-14, viz., Dr. H. Anganatham, there cannot be any doubt whatsoever that  

the bullet in question was sent for opinion of the scientific expert.  

42. We need not refer to the medical evidence as has been brought on  

record by the prosecution through PW-15,  Dr.  M. Ramchander  Rao,  and  

PW-16, Dr. Chandrasekhar Reddy, who held the postmortem examinations  

which led to corroboration of the ocular evidence to a great extent.   The  

pistol recovered from the appellant indisputably was not a licensed one.  If  

the  appellant  came  to  meet  the  deceased  M.P.  for  recommendation  for  

opening  of  a  PG Centre,  it  was  not  necessary  for  him to  come with  an  

unlicensed pistol.

43. Furthermore  although  the  identity  of  accused  No.2  could  not  be  

proved as being the driver of car bearing No. AAK – 7041, the fact that the  

said  car  was  used in  the  crime,  cannot  be  doubted having  regard  to  the  

evidence of PW-10 and PW-11.  

44. Mr. Sachar has relied upon the decision of this Court in   Vikramjit  

Singh  v. State of Punjab,  [ (2006) 12 SCC 306 ], at page 314 wherein inter  

alia it has been held  that  a strong suspicion or that in all probabilities the  

accused was guilty of commission of heinous offence, would by itself not a  

substitute for proof.  

45. In this case not only the appellant’s presence has been admitted, the  

fact that he is a member of Peoples War Group also remains undisputed.  His  

participation in the crime with reference to the pink coloured shirt worn by  

him and his arrest immediately after the occurrence in an injured condition;  

recovery from him of the pistol and the two cartridges and the evidence of  

DNA Expert and the Ballistic Expert, must be held to be sufficient to prove  

his participation in the commission of the offence of murder of the deceased,  

namely Subbarama Reddy and his gunman Ch. Venkatarantam, and causing  

injuries to PW-1 and PW-3.

46. Submission of Mr. Sachar that the report of DNA should not be relied  

upon, cannot be accepted.  What is DNA?  It means :-

"(Deoxyribonucleic  Acid),  which is  found in  the  chromosomes  of the cells  of living beings is  the  blueprint  of  an  individual.  DNA  decides  the  characteristics of the person such as the colour of  the skin, type of hair, nails and so on. Using this  genetic  fingerprinting  identification  of  an  individual is done like in the traditional method of  identifying  fingerprints  of  offenders.  The  identification  is  hundred  percent  precise,  experts  opine.”

There cannot be any doubt whatsoever that there is a need of quality  

control.  Precautions are required to be taken to ensure preparation of high-

molecular-weight DNA complete digestion of the samples with appropriate  

enzymes, and perfect transfer and hybridization of the blot to obtain distinct  

bands  with  appropriate  control.  (See  Article  of  Lalji  Singh,  Centre  for  

Cellular  and  Molecular  Biology,  Hyderabad  in  DNA  Profiling  and  its  

applications)  

47. But in this case there is nothing to show that such precautions were  

not taken.  Indisputably the evidence of the experts is admissible in evidence

in terms of Section 45 of the Evidence Act, 1872.   In cross-examination  

PW-46 had stated as under :-

"If the DNA fingerprint of a person matches with  that of a sample, it means that the sample has come  from  that  person  only.  The  probability  of  two  persons  except  identical  twins  having  the  same  DNA fingerprint  is  around 1 in 30 billion world  population."

48. It  is  true  that  no  identification  parade  was  held  but  then  the  fact  

remains that the appellant remained in the hospital from 1st December, 1995  

till 13th December, 1995.  Holding of identification parade, therefore, would  

not have served any purpose.  

49. We  are  not  oblivious  of  the  fact  that  the  experts  used  the  term  

‘similar’ and not ‘identical’.  For the purpose of this case it may not be of  

much  consequence  as  this  court  has  not  taken  into  consideration  the  

evidence of DNA Experts alone for the purpose of recording a judgment of  

conviction.   It  has  been  considered  alongwith  the  other  evidence.   The  

prosecution case has been considered as a whole. Cumulative effect of the  

evidences  adduced  before  the  learned  trial  judge  have  been  taken  into  

consideration for the purpose of arriving at a finding of guilt  against  the  

appellant.

50. So far as accused No.2 is concerned, we are of the opinion that that  

the High Court, although should have dealt with the matter at some more  

details, but keeping in view the  fact that it recorded a judgment of acquittal,  

it is difficult to opine that another view is not possible.  He was arrested 15  

days after the occurrence from a railway platform.  The fact that he was the  

driver of the car was sought to be proved by PW-10 and PW-11.  PW-10,  

however, stated that he was arrested on the same day which was not a fact.  

PW-11 also could not testify the identity of accused No.2. No identification  

parade was held, which could have been held, unlike the case of accused  

No.1.  He was not in the hospital or at some other place.   No recovery has  

been made from him.  The evidence  of  PW-9 Nagineni  Subbayamma is  

shaky as she stated that she had not seen the tenants, whom the accused No.2  

used to visit by coming in an Ambassador car.   

51. We, therefore, are of the opinion that both the appeals are liable to be  

dismissed.  They are dismissed accordingly.   

……………………………..J.          ( S.B. SINHA )

……………………………..J.        ( CYRIAC JOSEPH )

New Delhi July 23, 2009