The core lacuna in the case of the Prosecution lies in its failure to produce the seized silver and gold articles before the jurisdictional Magistrate and conduct Test Identification with either PW.3 or PW.4. Test Identification Parade was arranged for identification of the appellant by LW.1, PW.3 and PW.4. However, the report reveals that while LW.1 has failed to identify the appellant, PW.4 was absent. It is only PW.3, who is stated to have identified the appellant. It was suggested to PW.3 in his cross- examination that there is a tackle mark on the forehead of the appellant and that the Police have shown his photographs before the Test Identification Parade. Irrespective of the probative value of this suggestion, we are of the opinion that the appellant cannot be convicted solely based upon the identification by one witness as there is every likelihood of the witness indulging in chance identification as only 5 persons were paraded before him and such chance identification cannot be ruled out. If we carefully consider the contents of Ex.P.4, LW.1 spent long time with the assailants during the entire incident and for the reasons best known to the Prosecution, they have not cited him as a witness. Moreover, he, being the person who had the best chance of identifying the appellant, failed in this regard during the Test Identification Parade. Similarly, PW.4 has not even attended the Test Identification Parade. In these facts and circumstances of the case, it is wholly unsafe to rely upon the testimony of PW.3 to connect the appellant to the offences with which he was charged.

The Honble Sri Justice C.V.Nagarjuna Reddy and The Honble Ms. Justice J.Uma Devi

Criminal Appeal No.918 of 2010

06-06-2017

Charagonda Thirupathi Appellant


#The State of Andhra Pradesh Rep. by its Public Prosecutor High Court of Andhra Pradesh Hyderabad Respondent  

!Counsel for the Appellant:  Mrs.A.Gayathri Reddy

^Counsel for the respondent: Public Prosecutor (TS)

<GIST:

>HEAD NOTE:  

? Cases cited:


The Honble Sri Justice C.V.Nagarjuna Reddy
and
The Honble Ms. Justice J.Uma Devi
Criminal Appeal No.918 of 2010
Date: 06.06.2017


The Court made the following:


Judgment: (Per the Honble Sri Justice C.V.Nagarjuna Reddy)

        The sole accused in Sessions Case No.433 of 2009 on the
file of the II Additional Sessions Judge, Nalgonda at Suryapet,
filed this Criminal Appeal feeling aggrieved by his conviction
for the offences punishable under Sections 302, 307 and 394
IPC and sentence to undergo (i) Life Imprisonment for the
offence under Section 302 IPC, (ii) Rigorous Imprisonment of
seven years for the offence under Section 307 IPC and (iii) Life
Imprisonment for the offence under Section 394 IPC, all of
which were directed to run concurrently.

        The case of the Prosecution, in brief, is as follows:
        One Ankireddy (hereinafter referred to as the deceased),
who was the owner of Sri Ramanjaneya Rice Mill situated at
Lingampally Cross Road, was killed and his son (PW.3)
received injuries on the night of 09-08-2000.  LW.1- Somagani
Bixam approached PW.9- Sub-Inspector of Police, Noothankal
Police Station, at 11.00 a.m., on 10.08.2000 and gave Ex.P.4-
report that he is a resident of Miryala Village and living on
agriculture and also by doing coolie work in Sri Ramanjaneya
Rice Mill; that on the night of 09-08-2000, himself and the
deceased were sleeping on separate cots in the verandah of the
Rice Mill; that PWs.3 and 4, who are the son and the daughter-
in-law of the deceased slept in a room inside the mill; that at
about 12.00 midnight, two strangers, who were wearing masks,
suddenly arrived at the scene, woke up both the deceased and
Bixam and demanded drinking water; that when they were
given water with a small vessel, they informed that the said
quantity of water would not be sufficient as there were 12
persons (elder brothers) waiting outside, who also need water;
that on seeing the weapons such as axes and knives in their
hands, Bixam (LW.1) felt scared and handed over the pot
containing water; and that one of those two strangers took away
the pot, while the other person sat with them.  It is further
stated that the person, who has taken the pot of water, came
back, asked Bixam (LW.1) as to which is his native place and
after his reply, commanded him to lie down on the floor,
covered him with a blanket, directed him not to witness
anything and threatened that if he does not do so, he will be
hacked with axe; that thereafter, the assailants have brought
PWs.3 and 4 outside the room and hacked the deceased with  
axes and knives;  that following the said attack, the deceased
went inside the mill and fell on the cot upon which he was
again attacked with the axe leading to his instantaneous death;
that when PWs.3 and 4 tried to prevent the assailants from
attacking the deceased, they were also attacked with knives as a
result of which they got injured; that both the assailants have
forcibly put Bixam (LW.1) and PW.4 inside the room, bolted
from outside and left the place after talking to PW.3 for some
time;  that during early morning, Bixam (LW.1) has opened the
windows and looked for help from anybody, who may be going
to their agricultural wells; that as it was heavily raining, he could
not see anyone; and that PW.3 himself came by groaning and
opened the doors following which Bixam (LW.1) and PW.4
came out;  that both the assailants have thrown all the articles
and clothes outside; and that he does not know the reason why
they have killed the deceased.  The said report was registered as
FIR No.51 of 2000 under Sections 302 and 307 IPC and sent to
the jurisdictional Magistrate at 6.00 p.m., on 10-08-2000.   In
Column 7 of the FIR, the accused were described as
unidentified thieves.
       
        It is stated in the chargesheet that during the course of
investigation, PW.9- Sub-Inspector of Police, Nuthankal,
examined and recorded the statements of Bixam (LW.1), PW.1,  
Kompalli Narsi Reddy (LW.3), PW.2, PW.3 and Kompally Ram    
Reddy (LW.5); that thereafter, he prepared Ex.P.1- Scene of
Offence Panchanama, conducted inquest over the deadbody of
the deceased, prepared Ex.P.2- Inquest Report and shifted the
dead body to the Government Area Hospital, Suryapet, for
Post Mortem Examination; that after PW.11- Circle Inspector
of Police, Thungaturthy, took up the investigation, he has
added Section 394 IPC and recorded the statement of PW.3,
who was unconscious for long time; and that the efforts of the
Police to identify the culprits went in vain, as a result of which
the case was referred as undetectable on 25-11-2002 subject,
however, to reopening of the case whenever clues come to
light.  It is further stated in the chargesheet that on 20-08-2004
at 10.00 hours, the then Circle Inspector of Police (LW.21)
(since deceased) arrested the appellant in connection with
Crime No.51 of 2004 registered under Section 392 IPC of
Noothankal Police Station, recorded his confessional statement
in the presence of PW.7 and Medida Rama Chary (LW.4)  
wherein he confessed to have committed the murder of the
deceased in the instant case, recovered a stolen pair of silver leg
chains from him and produced him before the Court; that the
jurisdictional Magistrate has remanded the appellant to judicial
custody; that he was, accordingly, lodged in Sub-Jail, Suryapet;
that on 25-08-2004, PW.11 filed a requisition to the Court for
permission to reopen the case; that accordingly, the Court
granted permission for reopening the case on 24-09-2004 for
further investigation;  that as per the directions of the
jurisdictional Court, the appellant was produced before it on
25-10-2004 on PT Warrant; that  PW.11 examined and  
recorded the statements of PW.5 and Mali Balaji (LW.10) and
filed requisition before the Court of Magistrate, Nakrekal, to
conduct Test Identification Parade of the appellant by Bixam
(LW.1),  PW.3 and PW.4; that  PW.10- Judicial First Class
Magistrate, Nakrekal, conducted Test Identification Parade in
the presence of LW.1 and PW.3 only as PW.4 was not  
available; that during the Test Identification Parade, PW.3
identified the appellant; and that the investigation revealed that
the appellant and accused Nos.1, 3 and 4 are notorious
criminals.
       
        It is further stated in the chargesheet that the deceased is
the owner of Sri Ramanjaneya Rice Mill; that during the night of
09-08-2000, accused Nos.1 to 4 went to the rice mill of the
deceased; that accused No.1 (appellant) and accused No.3 went
into the rice mill while the other two accused guarded the scene;
that  they beat PWs.3 and 4 with sticks and stabbed the
deceased causing his instantaneous death and robbed a pair of
gold ear studs and a pair of silver anklets from PW.4; that the
appellant got the pair of silver anklets towards his share, which
were mortgaged to PW.5;  that accused No.4 expired two years
prior to the filing of the charge sheet; that accused Nos.2 and 3
are still absconding; and that the charge sheet was, accordingly,
filed against the appellant only.
       
        As the plea of the appellant was one of denial, he was
subjected to trial during which the Prosecution has examined
PWs.1 to 13, marked Exs.P.1 to P.7 and produced MO.1- silver
anklets.  No evidence was adduced on behalf of the appellant.

        On appreciation of the oral and documentary evidence,
the trial Court has disposed of the case in the manner as noted
herein before.

        At the hearing, Smt.A.Gayathri Reddy, learned Counsel
for the appellant, submitted that this is a case where the name
of the appellant was included in an already closed case; that the
Police having closed the case as undetectable, reopened the
same in the year 2004 after the appellant was arrested in
connection with another case on the basis of a purported
confessional statement; and that except the alleged
identification of the appellant by PW.3, there is no evidence
what-so-ever to connect him with the murder of the deceased,
attack on PW.3 and the alleged robbery.    She has further
stated that MO.1 was planted obviously to implicate the
appellant as neither in Ex.P.1- report of Bixam (LW.1) nor in
Ex.P.5- FIR nor in the evidence of PW.3 given before the
Court, there was any whisper about the alleged robbery.   She
has further argued that the whole case of the Prosecution as
reflected in the charge sheet is contrary to the contents of the
FIR and also the statement of PW.3 recorded under Section
161 Cr.P.C. as per which the offences were committed by those
persons, who had dispute over the godown with the deceased.

        The learned Public Prosecutor for the State of Telangana,
however, sought to sustain the judgment of the lower Court.

        We have carefully considered the submissions of the
learned Counsel for the parties with reference to the record.

        There is no gainsaying of the fact that the Police failed to
identify the assailants for more than two years after the
offences have taken place and that the case was closed as
undetectable on 25.11.2002.  It is only after 20-08-2004, when
the appellant was arrested by LW.21 in connection with
another case that he along with accused Nos.2 to 4 were
arraigned as the accused and the case was reopened.  While
Ex.P.4- report, based on which the FIR was registered, suggests
that two assailants were involved in the commission of the
offence, the charge sheet, however, named four accused and
the case was proceeded against only the appellant as accused
Nos.2 and 3 were absconding and accused No.4 has died.  The
said report also does not throw light either on the identity of
the accused or the motive for murder.  Interestingly, this
document also does not raise any whisper about the assailants
taking away the jewellery from the person of PW.4.  In this
context, Section 161 Cr.P.C., statement of PW.3 assumes a lot
of importance.  He has made a cryptic description of the whole
background in which he along with his wife and the deceased
were living in the rice mill.  While being unable to identify the
assailants, PW.3 has categorically stated that the reason for
attack on them was the existence of disputes between his father
and himself on one side and one Lakshmaiah, Satyanarayana
Rao, Bandapalli Muttaiah and Chilpakunta Padma Reddy on  
the other side.  He has also categorically stated that the said
Lakshmaiah, Satyanarayana Rao and Bandapalli Muttaiah have  
developed vengeance against his father.  We are surprised to
note that in spite of the specific assertion made by PW.3 that
the afore-mentioned three persons have developed vengeance
against his father and that he is suspecting them, the Police did
not appear to have carried on investigation on those lines and
there is nothing on record to show that any steps were taken to
arraign those three or four persons as suspects or assailants in
the case.

        Be that as it may.  It is only in the year 2004 that the
Police have chanced upon the appellant based on his alleged
confessional statement, which is not even marked by the
Prosecution.  The only piece of evidence linking the appellant
with the offences is Ex.P.3- seizure Panchanama of gold ear
studs and silver anklets and Ex.P.6- proceedings of the Test
Identification Parade.

        As regards Ex.P.3, it is a Panchanama relating to the
alleged seizure of a pair of gold ear studs and a pair of silver
anklets from PW.5.  In his evidence, PW.5 has deposed that he
was running gold ornaments preparation shop at Maripeda
Bungalow of Warangal District from 1996 to September, 2004;
that in September, 2004, he has shifted his residence to
Kamanchikalu of Khammam District; that he knew the
appellant since 2002 as he used to sell birds; that in the year
2003, the appellant approached him and made a request to
advance some amount as he was not doing well; that therefore,
the appellant, on two different occasions, pledged gold ear
studs for a sum of Rs.300/- and silver anklets for a sum of
Rs.200/- with him; that in July or August, 2004, Thungaturthy
Police have come to his shop and seized the gold ear studs and
silver anklets.  In his cross-examination, the witness has
admitted that he does not possess licence for sale of gold or for
doing pawn broker business; and that he has not maintained
any record relating to the transaction with the appellant at the
time of pledging the gold and silver ornaments.  It was
suggested to PW.5 that the appellant has not pledged any
articles with him, which was of course denied by him.  The
evidence of PW.5 appears to be highly artificial.  If the
appellant has committed robbery in the year 2000, it is highly
unlikely that he would not have either pledged or sold away the
robbed items for more than three years.  Moreover, except the
ipsi dixit of PW.5, there is nothing on record to show that the
appellant has pledged gold ear studs or silver anklets.
Admittedly, he did not have any license to do Pawn Broker
business.  It is not difficult for the Police to plant the gold ear
studs and silver anklets to foist a false case against any person.
Therefore, it is not safe to accept the testimony of PW.5 in the
absence of any evidence even remotely suggesting that the
appellant has pledged the gold ear studs and silver anklets with
him.

        The core lacuna in the case of the Prosecution lies in its
failure to produce the seized silver and gold articles before the
jurisdictional Magistrate and conduct Test Identification with
either PW.3 or PW.4.  Nothing is brought out on record to
show that the gold ear studs and silver anklets seized from the
possession of PW.5 belong to PW.4.  Even if the seizure of
those articles from PW.5 was correct, the crucial link
establishing the nexus between the seized articles and PW.4 was 
completely missing due to the failure of the Investigation
Officer to conduct the Test Identification in the presence of the
jurisdictional Magistrate.  Before closing this aspect, it needs to
be reiterated that, as observed earlier, neither Ex.P.4 nor Ex.P.5
nor even Section 161 Cr.P.C., Statement of PW.3 referred to
the allegation of the appellant robbing the silver and gold
ornaments from the person of PW.4.  It is only for the first time
that PW.4 in her evidence spoke to the said fact.  If robbery
had really taken place, LW.1 and PW.3 would not have been
silent on the said aspect.  This circumstance further weakens
the theory of the Prosecution regarding the alleged robbery and
the nexus of the appellant with the commission of the offences
charged against him.  The above discussed circumstances create
a serious suspicion in the mind of this Court on the recovery of
ornaments, which were probably planted to falsely implicate the
appellant in the commission of offence.

        Ex.P.6- proceedings clearly shows that the Test
Identification Parade was arranged for identification of the
appellant by LW.1, PW.3 and PW.4.  However, the report 
reveals that while LW.1 has failed to identify the appellant,
PW.4 was absent.  It is only PW.3, who is stated to have
identified the appellant.  It was suggested to PW.3 in his cross-
examination that there is a tackle mark on the forehead of the
appellant and that the Police have shown his photographs
before the Test Identification Parade.  Irrespective of the
probative value of this suggestion, we are of the opinion that
the appellant cannot be convicted solely based upon the
identification by one witness as there is every likelihood of the
witness indulging in chance identification as only 5 persons
were paraded before him and such chance identification cannot
be ruled out.  If we carefully consider the contents of Ex.P.4,
LW.1 spent long time with the assailants during the entire
incident and for the reasons best known to the Prosecution,
they have not cited him as a witness.  Moreover, he, being the
person who had the best chance of identifying the appellant,
failed in this regard during the Test Identification Parade.
Similarly, PW.4 has not even attended the Test Identification
Parade.  In these facts and circumstances of the case, it is
wholly unsafe to rely upon the testimony of PW.3 to connect
the appellant to the offences with which he was charged.

        On a careful scrutiny of the whole case of the
prosecution, we have no hesitation to hold that the
investigating agency has miserably failed to investigate the case
on proper lines and implicated the appellant, obviously, to
bring the case to its logical end.  PWs.3 and 4- the alleged eye
witnesses failed to strengthen the case of the Prosecution with
their equivocal and uninspiring evidence.  The earliest version
of PW.3 being at direct variance with the theory of the
Prosecution as reflected in the chargesheet, the Court below has
committed a serious error in holding the appellant guilty of the
offences punishable under Sections 302, 307 & 394 IPC.

        For all the afore-mentioned reasons, we hold that the
Prosecution failed to bring home the guilt of the accused
beyond all reasonable doubts.

        In the result, the Criminal Appeal is allowed.  The
conviction and sentence recorded against the
appellant/accused are set aside. Consequently, the
appellant/accused shall be set at liberty forthwith, if he is not
required in any other case or crime and the fine amount, if any,
paid by him shall be refunded to him.
_____________________  
(C.V.Nagarjuna Reddy, J)
_____________
(J.Uma Devi, J)
Dt: 6th June, 2017

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