THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD Crl. Appeals Nos.1616 of 2008, 1603 of 2008, 1502 of 2008, 54 of 2010 & Crl.RC No.83 of 2010 COMMON JUDGMENT : ( per Hon’ble Sri Justice Ghulam Mohammed ) % 09-3-2010 # Yeddula Suryanarayana Reddy & others …… Appellants Versus $ State of AP rep. by the Public Prosecutor & others ……Respondent <Gist: >Head Note ! Counsel for appellants:Sr. Counsel Sri C.Padmanabha Reddy ^ Counsel for respondent: Sri Mohd Osman Shaheed ? Cases referred 2008 (2) ALD (CRL.) 766 SC 2008 (1) ALD (CRL.) 955 SC (2004) 5 SCC 679 2006 (2) ALD (CRL.) 777 SC 2006 (10) SCC 163 (2007) 1 SCC 699 2008 (1) ALD (CRL.) 150 SC AIR 1953 SC 364 2004 SCC (CRL.) 1408 2003 (1) ALT (CRL.) 137 SC 1995 (1) ALT CRL. 212 AP 1997 SCC CRL 333 2008 (1) ALD (CRL) 944 SC 2001 (1) ALD (CRL) 869 SC 2003 3 SCC 355 AIR 2009 SC 2661 2003 (1) ALT CRL 77 DB 2010 1 SCC CRL 288 THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Crl. Appeals Nos.1616 of 2008, 1603 of 2008, 1502 of 2008, 54 of 2010 & Crl.RC No.83 of 2010 COMMON JUDGMENT : ( per Hon’ble Sri Justice Ghulam Mohammed ) All these criminal appeals and the criminal revision case are filed against the judgment in SC No.378 of 1998, dated 28-11- 2008 passed by the VI Addl. Sessions Judge, (Fast Track Court), Anantapur at Gooty. 2. The Accused A-1 to A-4, A.6 to A-8, A-10 and A-11 were charged for the offences punishable under Sections 120-B , 148 and 302 IPC. It is relevant to mention here itself that A-5 and A-9 who were also charged along with the accused had died before the trial. Substance of the charge against the accused was that all the accused conspired to commit murder of deceased Shiva Prasad Reddy and in furtherance of the said conspiracy committed murder of deceased Shiva Prasad Reddy by hacking him with hunting sickles indiscriminately all over his body resulting in his death on the way to Government Hospital, Gooty. The plea of the accused is one of denial and they claimed to be tried. In order to connect the accused with the crime and bring home the guilt of the accused, the prosecution examined 12 witnesses, PWs.1 to 12, marked documents Exs.P-1 to P-15 and produced Mos.1 to 16. The accused examined DWs.1 to 4 as defence witnesses and marked documents Exs.D-1 to D-10. 3. The Sessions Court, after appreciating the oral and documentary evidence adduced by the parties, by the judgment impugned in these cases, held that A-l to A-4, A-6, A-7, A-8, A- 10 & A-11 were not guilty of the offence punishable under Section 120-B IPC and accordingly acquitted them of the said charge. It was also found that A-6, A-7 and A-8 were not guilty of the offences punishable under Section 302 IPC accordingly they were acquitted of the charge. However, the Sessions Court found A-l to A-4, A-10 and A-11 guilty of the offences punishable under Sections 148 IPC and 302 IPC and accordingly convicted and sentenced them to undergo imprisonment for life. 4. Assailing the said conviction and sentence recorded by the Sessions Court, Crl. Appeal No.1616 of 2008 is filed by Accused Nos.1 to 4, Crl. Appeal No.1603 of 2008 is filed by Accused No.10, Crl. Appeal No.1502 of 2008 is filed by Accused No.11. Crl. Appeal No.54 of 2010 is filed by the State against the acquittal of Accused Nos.6 to 8 of the offence under Section 302 IPC and also against the acquittal of the Accused Nos.1 to 4, 6 to 8, & 10 & 11 of the offence under Section 120-B IPC. Mr. Y.Sharabha Reddy, (PW-1) filed Crl.RC No.83 of 2010 against the acquittal of Accused Nos.6 to 8 of the offence under Section 302 IPC and also against the acquittal of the Accused Nos.1 to 4, 6 to 8, & 10 & 11 of the offence under Section 120-B IPC. It is relevant to note while investigation was in progress a petition was filed by A-10 and A-11 by taking the plea of alibi. 5. Thus the charge sheet was filed only against accused A-1 to A-9. The case was taken on file against A-1 to A-9 as PRC No.47 of 1997 by the Judicial First Class Magistrate, Gooty. The case was committed to the Court of Session, Anantapur and numbered as SC No.378 of 1998 against A-1 to A-9. After the chief examination of PW-1, the Public Prosecutor filed Crl.MP No.136 of 2004 under Section 319 Cr.PC to add A-10 and A-11 as accused in the case. The said petition was dismissed by the Sessions Court and confirmed by this High Court. However, the matter was carried to the Hon’ble Supreme Court and as per the orders of the Hon’ble Supreme Court in Crl.A.No.689 of 2007, dated 10-5-2007, A-10 and A-11 were added as accused along with A-1 to A-9. 6. Before dealing with the contentions urged in these appeals, the case of the prosecution may briefly be stated as follows:- 7. Yeddula Sarabha Reddy (PW-l), Yeddula Suryaprabhakar Reddy (LW-2) and Yeddula Siva Prasad Reddy (short, ‘the deceased’) are brothers. Deceased Siva Prasada Reddy was practising advocate at Gooty. PW-l and LW-2 Yeddula Suryaprabhakar Reddy are agriculturists. The deceased-Siva Prasad Reddy along with his brothers was residing in Peddavaduguru Village. The deceased used to go to Gooty for practising as an advocate every day from Peddavaduguru village to Courts at Gooty on his motor cycle. The deceased-Siva Prasad Reddy contested for the post of President of Water Users Association of Peddavaduguru village against Tatireddigari Maheswara Reddy (A-2). However, A-2 won the elections. That in that elections A-1 and other communist party leader by name Rami Reddy helped A-2. That two months after declaration of election results, Excise Police raided the house of A-2 and seized illicit brandy and the Excise Police accordingly booked cases against A-2 under the provisions of the Excise Act. That A- 2 being under the impression that the deceased Siva Prasad Reddy was responsible for seizure of said brandy, bore grudge against the deceased-Siva Prasad Reddy. 8. That a public meeting was convened by Congress Leaders in Pedda vaduguru village 20 days prior to 26-7-1997 and the said meeting was attended by Congress party leaders. In the said meeting, the deceased- Siva Prasad Reddy was elected as convener of Congress party. That on the same day, Excise police seized illicit brandy from the house of A-1 and the Excise police booked cases against A-1 under the provisions of AP Excise Act. A-1 was also reeling under the impression that the deceased-Siva Prasad Reddy was responsible for the raid conducted by Excise officials. Thus A-1 and A-2 bore grudge against the deceased-Siva Prasad Reddy and the popularity and the political growth of the deceased in politics also became eye sore to A-1 and A-2. 9. That on the fateful day i.e. 26-7-1997, the deceased-Siva Prasad Reddy left Peddavadguru village between 9-00 to 9.30 am and went to Gooty to attend Court work at Gooty, on his motor cycle. That after completion of work at Gooty, the deceased-Siva Prasad Reddy left Gooty to go to Peddavadguru village to his house. On the same day, Yeddula Sarabha Reddy (PW-1), Yeddula Suryaprabhakar Reddy (LW-2), Dudekula Imam Sab (PW-2) and Yeddula Krishna Reddy (PW-3) went to Pamidi. They all left Pedda Vaduguru village in between 12-00 to 12.30 noon went to Pamidi looked after their work till 5-00 pm. Thereafter, PWs.l to 3 along with Yeddula Suryaprabhakar Reddy (LW-2), boarded lorry at Pamidi got down at Miduturu cross road and were waiting for conveyance to go to their village Pedda Vaduguru. That in the meanwhile, the deceased-Siva Prasad Reddy came from Gooty side on his Hero Honda motor cycle. While negotiating a curve at Miduturu cross road at about 6-00 pm, PW-4 Kunti Ravindra requested the deceased to stop his motor cycle by raising his hand and on seeing him the deceased stopped his motor cycle. 10. That at that time, A-1 to A-9 and three others armed with hunting sickles came from the nearby bushes raised cries to hack the deceased-Siva Prasad Reddy. A-1 to A-9 along with three others attacked and hacked Siva Prasad Reddy indiscriminately on various parts of his body. That PWs.l to 3 who were waiting for a van to go to their village rushed towards Siva Prasad Reddy to save him. Accused 1 to 9 and three others then threatened PWs.l to 3 and LW-2 Yeddula Suryaprabhakar Reddy to kill them. PWs.l to 3 and LW-2 Yeddula Suryaprbhakar Reddy then ran towards Miduturu village side for about one furlong. Thereafter, PWs.l to 3 stopped and rushed back to the scene and found Siva Prasad Reddy in pool of blood. That PW-l gave glass of water to Siva Prasad Reddy and all of them, that is, PWs.l to 3 and Yeddula Suryaprabhakar Reddy (LW-2) shifted Siva Prasad Reddy in a van to Government Hospital, Gooty. The Medical officer present in the Government Hospital, Gooty, examined Siva Prasad Reddy and declared as brought dead. 11. That Sri S.Naganna (PW-12), the Inspector of Police, Gooty, on coming to know that Siva Prasad Reddy was attacked at Miduturu cross road and that while he was being shifted to Govt. Hospital, Gooty, died on his way, proceeded to Government, Hospital, Gooty. PW-l presented to PW-12 a written complaint regarding the incident which he had witnessed. PW-12 having received Ex.P-1, written complaint, from PW-1 made endorsement on Ex.P-1 directing Station House officer, Peddavadugur Police Station to register FIR and to send a copy of the same for investigation. PW-11, SM Dowla, was the Head Constable of Peddavaduguru Police Station during the relevant period 1996 to 1999. On receipt of Ex.P-1-complaint, he registered a case as Cr.No.48/97 under Sections 147, 148, 302 r/w 149 IPC of Peddavaduguru Police Station and sent original FIR to the Court of Judicial magistrate of I Class, Gooty. PW-12 (Investigating Officer) during the course of investigation visited the scene of offence, examined the scene of offence, found motorcycle (MO-6), one pair of Chappals, one leather chappal ( MOs.11 and 12), Cooling glasses (MO-13) and pool of blood. Due to dark ness, PW-12 could not further examine the scene of offence. On 27-7-1997, PW-12 conducted inquest on the dead body of the deceased in the presence of PW-7 and another from 7-00 am to 10.30 am at Government Hospital Mortuary room, Gooty. PW-12 has seized MOs.1 to 5 belonging to deceased at the time of conducting inquest. PW-12 also recorded the statements of PWs.l, to 3 after conducting inquest over the dead body of the deceased. Thereafter, PW-12 sent dead body of the deceased for post-mortem examination. PW-9 Dr.Ranganna, conducted post-mortem examination on the dead body of the deceased-Siva Prasad Reddy and issued Ex.P-7 post-mortem certificate. PW-12 again visited the scene of offence and seized MOs.6, 11 to 13, blood stained earth MO-14, controlled earth MO- 15 from the scene of offence of offence. Ex.P-9 is the observation mahazarnama of scene of offence. Rough sketch of the scene prepared by him is Ex.P-10. PW-12 also examined PWs.4 to 6 and others and recorded their statements at Peddavaduguru village. 12. On 11-8-1998, PW-12 on reliable information arrested A- 1 to A-4 and seized MOs.7 to 10 sickles under cover of confession-cum-seizure panchanama Ex.P-6. A-1 to A-4 were remanded to judicial custody. That PW-12 sent material objects seized to Regional Forensic Science Laboratory for chemical analysis. Ex.P-11 and P-12 are the Regional Forensic Science Laboratory reports. PW-12 filed requisition before the Court of Judicial Magistrate of I Class, Gooty, for issue of production warrant against A-8 and A-9 who were lodged at Sub-Jail, Gooty in Cr.No.48/97 of Pedda Vaduguru Police Station. After taking warrant, A-8 and A-9 were also produced before the Court and were remanded to judicial custody. 13. That on 5-9-1997, PW-12 arrested A-5 to A-7 and A-5 confessed the commission of the offence. Ex.P-14 is the confessional-cum- panchanama of A-5. In pursuance of confession A-5, Mo.16 sickle was seized from the possession of A-5. Thereafter A-5 to A-7 were also sent to Judicial custody. 14. That after receipt of Regional Forensic Science Laboratory Report and after receipt of Post-mortem examination report and on completion investigation, PW-12 laid charge sheet against A-1 to A-9 deleting A-10 and A-11 in view of the enquiry report of DW-1. But A-10 and A-11 were added as accused along with A-1 to A- 9 pursuant to the petition made by the Public Prosecutor which was ultimately allowed by the Hon’ble Supreme Court directing inclusion of A-10 and A-11 as accused in the case. As noted above, after framing of charges, A-5 and A-9 died and therefore the proceedings against them abated. 15. After closure of prosecution evidence, A-1 to A-4, A-6 to A-8, A-10 and A-11 were examined under Section 313 Cr.P.C, with reference to the incriminating evidence and material brought on record by the prosecution. A-1 to A-4, A-6 to A-8, A-10 and A-11 denied their involvement and pleaded not guilty. Further A-10 and A-11 took the plea of alibi. 16. In support of its case, the prosecution examined 12 witnesses PWs.1 to 12 and marked documents Exs.P-1 to P-15 and produced Mos.1 to 16. The accused examined DWs.1 to 4 as defence witnesses and marked documents Exs.D-1 to D-10. The defence of the accused is one of total denial and it is also case of the accused that they have been falsely implicated in this case due to political rivalry between the two groups. 17. Sri C. Padmanabha Reddy, learned senior counsel appearing for the appellants-accused, has contended strenuously that the evidence of PW-1, brother of the deceased, is wholly unreliable to connect the accused with the crime as he is an interested witness and falsely implicated accused including A-8 and A-9 who were actually in judicial custody at the time of the offence, and as he has falsely implicated A-8 and A-9 in the case, there is no guarantee that the witness deposed truth about the involvement of other accused in the offence. Learned counsel also stated that PWs.2 and 3 did not speak about the participation of A-8 and A-9 in the crime. Learned counsel submitted that the Sessions Court having disbelieved the evidence of PWs.1 to 3 as to the involvement of A-6, A-7 and A-8, erred in convicting the other accused on the same evidence. Learned counsel further stated that the crucial witnesses being factionists and there was political rivalry between the two groups, the Sessions Court ought not to have relied on the evidence of interested witnesses PWs.1 to 3, as among them two were brothers of the deceased. It is also stated that there is no evidence to the effect which injury caused the death of the deceased and by which assailant. Learned senior counsel has further contended that there is delay in filing of FIR and, therefore, the genuineness of the FIR is doubtful. It is contended that the blood stained cloths of the persons who took the deceased to hospital were not seized by the Police. Learned counsel lastly drawing our attention to Section 11 of the Evidence Act submitted that there was ample evidence to support the plea of alibi of accused A-10 and A-11 which was not considered in its proper prospective. 18. Sri Mohd. Osman Shaheed, learned Additional Public Prosecutor, on the other hand, has argued that the mere fact that PWs.1 and 3 are related to the deceased, is not a circumstance to doubt their testimony. It is further stated that when there is allegation of interestedness, the same has to be established and mere fact that some witnesses are relatives of the deceased, cannot be a ground to discard the evidence which is otherwise cogent and credible. Learned Additional Public Prosecutor also stated that though PWs.5 to 7 were declared as hostile, their evidence cannot be rejected in toto and that their evidence to the extent it is corroborated in regard to the presence of PWs.1 to 3 and one Suryaprabhakar Reddy at the scene of offence and that they shifting of the deceased in mini van to Government Hospital, Gooty, after the attack by the assailants, has to be acted upon. He further contended that the Doctrine “FALSUS IN UNO FALUSE IN OMNIBUS” (false in one thing, false in everything) is not fully adopted by the Indian Courts. The correct position is that even if major portion of the statement of a witness is found to be deficient, the remaining statement, if supported by other evidence, can be relied upon to prove the guilt of the accused, therefore their conviction can be maintained. It also submitted that in view of the conclusive evidence of PWs.1 to 3 against accused A-10 and A- 11 and they did not even enter the witness box to depose that at the relevant time they were elsewhere, the plea alibi was also rightly disbelieved by the Sessions Court. 19. Sri Masthan Naidu Cherukuri, learned counsel for appellant-PW-1 in this case, contended that in the light of the cogent evidence of PWs.1 to 3 and the evidence of PW-10 as to the conspiracy hatched by A-1 to A-4, A-8 and A-9 to kill the deceased, the Sessions Court ought not have acquitted A-6 to A-8 of the charges under Section 148 and 302 IPC and all the accused ought to have been convicted of the charge under Section 120-B IPC. 20. In the light of the above contentions, the controversy is not as to the deceased had died homicidal death, the real controversy is as to who caused the death of the deceased. 21. It may, however, be noticed that PW-12 Inspector of Police on receipt of information proceeded to the Government Hospital, Gooty, and conducted inquest over the dead body of the deceased in the presence of PW-7 and another on 27-7-1997 from 7-00 am to 10-30 am. Ex.P-5 is the inquest panchanama. PW-9 Dr.M.Ranganna, Civil Assistant Surgeon, at Government Hosptial, Anantapur, who conducted autopsy on the dead body of the deceased stated that on 27-7-1997 he received a requisition from PW-12 to conduct post-mortem examination over the dead body of the deceased-Siva Prasad Reddy. Accordingly at about 10-45 am on the same day he commenced the post-mortem examination and noticed the following external injuries on the person of the deceased:- “1. An incised injury across the scalp of the scull underlying bone is also cut size about 6" X ½ “ bone deep. 2. An incised injury on the left side of the face extending from the angle to angle of mandible transcessly towards the nape of the neck size about 6" X 3" X 3" on probing the following structures carotid vessels. Stermo Mastered muscles mandible. Shierna jugular sheeth and vessels. 3. An incised injury 1" X ½ " X ¼ " muscle deep on the left side. 4. An incised injury on the left fore arm size about 5" X 3" bone deep ulner bone cut. 5. An incised injury running across the base of the al fingers on the plamar aspect size about 4" X ½ " X bone deep on the left hand. 6. An incised injury running across all the fingers on the dorsal aspect size about 4" X ½ X bone deep. 7. An incised injury size about 3" X ½” muscle deep over the left wrist on the flexer aspect. 8. An incised on the middle of the chin size about 2X X ½ X bone deep. 9. An incised injury on the right cheek vertically 3" X ½ " X bone deep. 10. An incised injury size about 3" X ½ “ X muscle deep platlsmes-sterno-mustood muscle on the right side of the neck. 11. A semi circular incised injury size about 4" X 2" X muscle deep right shoulder. 12. An incised injury on the right bone forearm on the medial aspect size about 3" X 1" muscle deep. 13. An incised injury on the middle phanges involving in the little and ring finger size about 2" X ½ X muscle deep right hand. 14. An incised injury size about 2" X ½ X muscle deep on the nape of the neck. 15. An incised injury size about 5" X 2" X bone deep (Bone cut) on the left renal angle (12th rib). 16. An incised injury size about 5" X 2" X muscle deep on the back of the left thigh.” and on internal examination he noticed the following injuries on the person of the deceased:- “Thorax and stomach opened, stomach contains semi- digested rice particles, colon contains paceal mater. Bladder empty. Liver and spleen both kidneys all are normal congested. Heart and lungs normal cut section conjected. Head and Neck: Hyod bone normal on reflection sclap there is small haemotoma on the skull oault out 2 cm X 1 cm 1 cum thick. On opinion skull is fractured corresponding to Injury No.l was extending deeper involving both the table of the valt of the skull and meneges and into the brain substances for amount ½". Rest of the brain surface is covered in a thick film of the blood cut section conjected. Base of the skull normal no fracture. Vertibra colomn normal spinal card normal.” 22. According to the opinion of the Doctor PW-9, the deceased died because of shock and haemorrhage due to multiple injuries and died 17 to 20 hours prior to his examination. All anti- mortem injuries found on the body of the deceased were incised wounds and they can be caused by a sharp edged weapon like hunting sickles like MOs.7 to 10 which are sufficient to cause death of a person. Nothing has been elicited to disprove the post mortem report of PW-9 during the course of his cross examination. Ex.P-7 is post-mortem certificate. PWs.l to 3 who are eye witnesses to the incident, PW-1 stated that deceased- Siva Prasad Reddy was hacked by A-1 to A-11, whereas PWs.2 and 3 stated A-1 to A-7, A-10 and A-11 hacked the deceased with hunting sickles, as a result of which the deceased sustained multiple injuries and succumbed to the injuries on the way to Government Hospital, Gooty. PW-12 Inspector of Police conducted inquest over the dead body of the deceased in the presence of PW-7 and another. PW-7 at the time of conducting inquest found anti-mortem injuries and those injuries were noted in the Inquest panchanama. Ex.P-5 is Inquest Panchanama. The Panchayatdars opined that the deceased-Shiva Prasad Reddy died due to multiple injuries inflicted on him. From the evidence of eye witnesses, PWs.1 to 3, the punch witness PW-7 and the medical evidence under Ex.P-7 given by PW-9, it is clear that the deceased died a homicidal death. 23. We now proceed to scrutinise the evidence led by the prosecution and the defence, oral as well as documentary, so as to ascertain whether the prosecution has been able to connect the accused with crime and bring home the guilt of the accused beyond all reasonable doubt ? 24. The accused are not strangers to the material witnesses PWs.1 to 3 and the deceased-Siva Prasad Reddy as they belong to adjoining villages. It has come in evidence that A-1 was Mandal Convener of Communist Party, A-2 is the Mandal leader of TDP and worked as President of Water Users Association. A-1 is the brother-in-law of A-2. A-2 is the brother of A-8. A-2 and A-3 are related to each other. 25. As noted above, the deceased contested for the post of President of Water Users Association, Peddavaduguru against A-2 who won the elections with the help of A-1 who is his brother-in- law. It has come in evidence that there were raids by the Excise Police on the