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PETITIONER: SHABAD PULLA REDDY & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       20/08/1997

BENCH: M.K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                 THE 20TH DAY OF AUGUST,1997 Present:               Hon’ble Mr.Justive M.K.Mukherjee               Hon’ble Mr.Justive S.Saghir Ahmad D.  Prakash   Reddy  and   G.  Narasimhulu,  Advs.  for  the appellants. G. Prabhakar, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered:                       J U D G M E N T M.K.MUKHERJEE, J. Leave granted. 2.   In Sessions  Case No.  48 of  1983 on  the file  of the Session Judge,  Warangal 26  persons were initally placed on trial to  anser charges under SEctions 120-B, 148, 449, 452, 460 and  302 I.P.C.  An alternative charge under Section 396 I.P.C. was also framed against them.  During pendency of the trial A-12  and A-14  died while  A-13 and  A-25  absconded. Hence, the trial continued against the other twenty two.  On conclusion thereof  the learned  Judge acquitted  A-1 of all the charges and convicted the others as under: i)   A-2 to  A-11, A-15,  A-23, A-24, and A-26 under Section      120-B I.P.C; ii)  A-8, A-15  to A-22,  A-24 and  A-26 under  Section  148      I.P.C; iii) A-15 to A-22 under Section 449 I.P.C; iv)  A-22 under Section 302 I.P.C. (simpliciter); v)   A-8, A-15  to A-21, A-24 and A-26 under Section 302/149      I.P.C. and vi)  A-2 to  A-7, A-9to  A-11 and A-23 under Section 302/109      I.P.C.      For the  convictions so recorded they were sentenced to different terms  of imprisonment  with a  direction that the sentences shall run concurrently. 3.   Against their  convictions and sentences they preferred separate appeals  in the  High Court.  In disposing  of  the appeals by  a common  judgment the  High Court set aside the convictions of  A-2 to  A-11, A-15,  A-16, A-23 and A-24 but confirmedthose of  A-17 to  A-22.    As  regards  A-26,  his conviction under  Section 120-  B I.P.C.  was set  aside but

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that under Section 302/149 I.P.C. maintained.  Assailing the above judgment  of the High Court A-17 to A-22 and A-26 have filed these  appeals which have been heard together and this judgment will dispose of them. 4.   The prosecutioon case, to the extent it is necessary to be reproduced  and is relevant for disposal of these appeals [now that  the charge  of conspiracy  has failed and some of the accused have been acquitted], is as follows:- (a)   A-2  is the  son of A-1, A-4 is the son-in-law of A-3, A-3 and A-24 are brothers. A-7 is the son of A-24, A-1 to A- 8 and  A-25 are  the residents of Upparigudem village.  A-10 and A-11,  who are brothers, are residents of Moduguladudem. A-15 to  A-23 are  residents of  different villages. nookala Managamma (P.W.11),  an ssueless widow, adopted the deceased Nookala Narayan  Reddy.  The deceased also did not beget any children and,  therefore, he  adopted Nookala  Ranjith Reddy (P.W.1) as  his son.  Smt. Rangamma, mothr-in-law of P.W.11, had adopted  A-1, son  of her elder sister.  The families of Rangamma and  Mangamma possessed  considerable properties in or around  Upparigudem.    Over  the  adoptions  there  were misuderstandings between the above two families which led to disputes regarding  their properties.  Later on the disputes were referred  to arbitration  and the  arbitrators  decided that P.W.11  and the  deceased should  take 9/16th share and Rangamma and  A-1 should  take 7/6th share.  In spite of teh award,  the  disputes  and  differences  continued  and  two factions were created: one led by the deceased and the other by A-1.   To  strengthen his  faction A-1  brought  A-24,  a resident of  Bojjannapeta village,  to his village after his release from a murder case and appointed him as his Seradar. A-26, who  was originally  a resident  of  Gudur,  was  also brought by A-1 as his farm servant. (b)  In the  night of  July 10, 1981, A-12 and two strangers came to  te house of A-24 and slept there.  On the following morning i.e. on July 11, 1981, all three of them went to the sapota garden of A-24, A-2 to A-5, A-7, A-15, A-23, A-24 and A-26 also  came and  joined in  the talks  with A-12.  At or about mid  day A-24 asked Mathian (P.W.8), his farm servant, to bring  lunch and he obliged.  In the afternoon A-23 asked P.W.8 to bring two axes and 10 cart pegs.  Accordingly P.W.8 brought them.   Th  A-12 asked P.W.8 to fo towards ’Sankeesa Bata’ saying  that six  persons would  come and asked him to bring them.   Accordingly,  P.W.8 went to sankeesa bata, saw pwesons coming  and brought them to sapota garden.  They all proceeded towards  the house  of the deceased.  At that time the decased,  his son  P.W.1, his  domestic servant-cum-cook Cenkatiah (P.W.2),  Kishtiah (P.W.5),  another farm servant, and P.W.11  were there.   At  or about  8.00  P.M.P.W.2 told them that  dinner was ready and asked them to get up.  P.W.5 then got  up to  go back  to his  house and  opened the main entrance door  only to  find some persons there.  Suspecting foulplay P.W.5  went out of the room through the door-way on the south and having closed it looked through the peepholes. He saw  A-15, A-17  and A-22  entering he  bed room  of  the deceased, and  then dragging  him.   They then snatched away the gun  (M.O.1) from  underneath te bed of the deceased and one of them aimed the gun at the decased and asked him where be had kept gold and other valuables.  One of the miscreants then broke  open the  wooden box  and all papers were thrown pell-mell.   Then P.W.1,  who was in the other room, saw the deceased beling dragged into the bed room of P.W.1, A-15, A- 17 and  A-22 then  opened the  wooden box  and took  away 19 cartridges and  cash terefrom  and also  two ear rings, gold chain and bangles from P.W.11.  Meanshile, A-18 to A-21 also joined A-15,  A-17 and A-22.  When P.Ws. 2 and 11 pleaded to

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leave the  deceased, they  were pushed  in the  bed room  of p.W.1 and  bolted from outside.  The miscreants then brought the deceased  out and  axed him  to death.   Afterwards they left the place raising singans. (c)  In the  early morning  of July  12, 1981  P.W.1 went to Seerole Police  Station and  gave a  report of  the incident (Ext. P-12)  to the  Sub Inspector  Ramesh Babu (P.W.28) who registered a  case thereupon.  P.W. 28  gave an  information about the  incident to  Sri Murthy  (P.W.31),  Inspector  of Police, and  bothe of  them reached the scene of occurrence. P.W.31 held  inquest over the dead body and sent it for post mortem examination.   Dr.  Reddy (P.W.17)  conducted autopsy and found  7 external injuries and out of them injuries 1 to 6 were  over the head and other vital parts of the body.  He opined that  the death was due to shock and haemorrhage as a result of mutiple injuries. (d)  In course  of investigation  Sri Inniah  (P.W.28), Sub- Inspector of  Police, Khammam  arrested A-26  at Yudlapuram. From his  possession two  cartridges (M.O.15) were recovered and  they  were  seized  under  Ext.  P-47.  P.W.29  sent  a requisition to  Sri Krishnaiah (P.W.16), Judicial Magistrate of Madhira  to recrd  the confessional  statement  of  A-26. Accordingly A-26 was produced before P.W.16 and after giving necessary  warnings  and  putting  necessary  questions,  he recorded the  confessional staement  of  A-26  (Ext.  P-34). After receiving  the message  about the  arrest of  A-26 and making of  his confessional  statemnt P.W.31  went to Khamma and obtained  a copy of the confession.  On the basis of the details   mentioned   therein,   he   proceeded   with   the investigation.   Sri Reddy (P.W.30) the Inspector of Police, Khammam arrested  A-22 on  September 13, 1981 and seized the gun (M.O.1)  and 12  cartridges under Ext. P-46.  On October 4, 1981  P.W. 31  arrested A-17,  A-18, A-19, A-20 and A-21. From A-17  he seized gold chain (M.O.5), from A-18 a pair of gold bangles  (M.O.6), from A-19 a torch light (m.O.8), from A-20 a  gold ring  (M.O.3) and  from A-21 a pair of gold ear flowers  (M.O.7).   After  their   arrest  P.W.31   gave   a requisition to  Sro  Lachiah  (P.W.6)  Judicial  Magistrate, Narasampet to  conduct test identification parade of A-15 to A-21.   Accordingly P.W.6  conducted a  test  identification parade on  4.1.1982 in  which P.W.1  identified A-17 to A-21 and P.W.2  identified A-18,  A-20  and  A-21,P.W.31  gave  a similar requisition  for A-16  and A-22  and in  the  second parade held  on january 12, 1982 P.W.1 and P.W.10 identified A-22.  After completion of the investigation P.W.31 laid the charge sheet on June 14, 1982. 5.   When examined  under Section  313 Cr.P.C.  the  accused persons pleaded  not guilty  to the  charges levlled against them.   So far as the appellants before us ae concerned, the specific defence  of A-17  to A-21  was that they were taken into custody much earlier than on October 4, 1981 as claimed by the  police and  that their  photographs were  taken  and shown to  the identifying witnesses. A-22 stated that he was taken from  his house  at kaikondagudem  and  shown  to  the identifying witnesses.  A-26 stated that three days prior to the alleged  incident he had gone to Ch9innakodur village to see his  alling mother  and there  the police  arrested  him They took him in a jeep fist to the outskirts of the village and then  to Mahabubabad.  There the Inspector of Police and Sub-Inspector of Police beat him and coerced him to confess, and for  three days  continuously he  was beaten.    On  the fourth day  he was shifted to Dornakal nd there he was again beaten by  the Inspector  of police  and  the  Inspector  of Police pressurised  him to  make a  statement regarding  the offence.   He was  confined illegally at the Police Station,

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Dornakal for  about six or seven days and later he was again shifted to  Mahabubabd and  he was  pressurised  to  make  a statement before  the Magistrate  as directed by the police. He was  threatened that  he would be shot dead if he did not make a statement as wanted by the police. 6.   The prosecution  examined in  all 31  witnesses of whom P.Ws. 1,2,  5 and  11 figured  as eye  witnesses.   Both the trial Court  and the  High Court  discussed the  evidence of these witnesses  at length  and found that their evidence so far as  it related  to the manner in which the incident took place was  satisfactory and  safely  reliable.    Since  the F.I.R.  promptly   lodged  by   P.W.1  also   contained  the substratum of  the prosecution case and the medical evidence corroborated the  version of  the eye  witnesses, the Courts below concluded  that the  incident took place in the manner alleged by  the prosecution.   We  do not  find  any  reason therefore to  disturb the  above findings.   Incidentally it may be mentioned that the learned counsel for the appellants ad not assail the above findings. 7.   That brings  us to  the crucial  question as to whether the prosecution  has been  able to  conclusively  prove  the involvement of  the appellants  in  the  above  offences  of rioting and  murder.   To connect  A-17  to  A-22  with  the crimes, the  prosecution relied  upon the  evidence of their identification  in   Court  by   the   witnesses   and   the corroborative evidence  of their  earlier identification  in two test  identification (T.I.)  parades held  on January 4, 1982 and  January 12, 1982 by a Judicial Magistrate (P.W.6). The evidence  of P.Ws  1 and  2 along  with that  of  P.W.6, proves that  in the T.I. parades P.W.1 identified A-17, A-19 and A-21 and P.W.2 identified A-18, A-20and A-21.      In other  words, A-17  and A-19 stand identified by one witness, namely,  P.W.1 and  A-20 and  A-21 by  both the one witness, namely,  P.W.1  and  A-20  and  A-21  by  both  the witnesses, namely, P.Ws 1 and 2.  Though the trial Court and the High  Court accepted the evidence of such identification of Court  and the  High Court  accepted the evidence of such identification in  Court  as  it  was  corroborated  by  the evidence of  their identification in T.I. parade, we find it difficult to  rely upon  the same  as no  explanation - much less plausible  - was  offered by  the prosecution  for  the nordinate delay  in holding  the T.I.  parades.   As earlier noticed, the  occurence took place on July 11, 1981 and five of the  above  six  accused  persons  (A-17  to  A-21)  were arrested on  Otober 4,  1981 and the T.I parades were held 3 months after  their arrest.   This  unsual  and  unexplained delay in  holding that  after such  long lapse  of time  the witnesses were  still able  to have  a clear  image  of  the accused in  their minds  and identify  them correctly at the identification parades.  So far as A-22 is concerned, he was arrested  earlier  -  (on  September  3,  1981)  -  and  was identified in  the T.I.  parade  by  P.W.1  as  one  of  the miscreants.   He was also identifie by Papaiah (P.W.10), who claimed to  have seen  him earlier  in the  day in question, going across  the field  armed with an axe.  For the reasons earlier  mentioned,   we  are  also  unable  to  accept  the identification of  A-22 by  P.Ws.  1  and  10.    The  other evidence on which the prosecution relied upon - and both the learned Courts  acceped to  convict A-17  to A-21  - is  the alleged recovery  of gold  chain (M.O.5),  a  pair  of  gold bangles (M.O.6),  a torch light (M.O.8), a gold ring (M.O.3) and  a   pair  of   gold  ear-flowers   (M.O.7)  from   them respectively, on  October 4,  1981 when  all  of  them  were arrested.   According to  the prosecution all those articles either belonged  to the  deceased or  to the  members of his

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family.  In our considered view, the evidence of recovery is too artificial  to be  believed.  It seems strange that even after three months of the incident all of them were carrying a stolen  article each 0 including a torch light.  If really they had  stolen article each - including a torch light.  If really they  ad stolen  such articles,  at the  time of  the murder, it  wasexpected in  the fitness  of things that they would dispose  of them  as early  as possible - more so when the nature  of articles  was such that they could pass hands quicky.   This apart,  even if  we proceed  o the assumption that evidence  regarding the  identification of the articles and  recovery   thereof  is   acceptable,  still   then,  no presumption can  be drawn  after such  a long  lapse of time that they  were party  to  the  murder  itself.    The  most favourable conclusion  that can be drawn for the prosecution from such  recovery is  that they  dishonestly retained  the stolen roperties knowing them to be stolen but in absence of any charge  framed under  Section 411  I.P.C. and  on  their acquittal of  the charge  under Section 396 I.P.C., no order of conviction  can be recorded against them.  So far as A-22 is concerned,  the allegation  is that  the gun belonging to the deceased  along with  cartridges was  recovered from his possession, but  then the  only reliable evidence in support thereof is  that those  arms and  ammunition were  recovered from an  open shed  belonging to P.W.9 and not from him.  It cannot, therefore,  be said  that the  prosecution has  been able to  conclusively prove  its case  against A-22, Lastly, coming to A-26, we find that the prosecution relied upon his retracted judicial  confession and  some other  evidence  in corroboration thereof.    On  carefully  going  through  the confessional statement  we find  tht A-26  confessed about a conspiracy to  commit the murder of the decased, but did not at all  confess that he was a party to the murder.  In other words, so  far as  the incident that took place in the night of July  11, 1981  in which  the decased met with his death, the  statement   made  by  A-26  before  the  Magistrate  is exculpatory.  One the confession made by A-26 is left out of consideration -  as it  must be  in view of the acquittal of the charge  under Section  120-B I.P.C.  - there is no other substantive evidene  to connect  him with  the  offences  in question.   Incidentally it  may be  mentioned him  with the offences in question.  Incidentally it may be mentioned that though, admittedly,  A-26 was a resident of the same village and was known to P.W.1 from long, he did not name him as one of the miscreants nor mention his name in the F.I.R. 8.   For the  foregoing discussion,  we allow these appeals, set aside  the order  of convictions  and sentences recorded against the appellants and acquit them.  The appellants, who are on bail are discharged from their respective ball bonds.