* HON’BLE SRI JUSTICE A.GOPAL REDDY AND * HON’BLE SRI JUSTICE R.KANTHA RAO +CRIMINAL APPEAL NO.99 OF 2008 % Date: 12.12.2011 BETWEEN: # Sammeta Venkateswararao …Appellant And $ The State of A.P. represented by the Public Prosecutor, …Respondent ! Counsel for Appellant: Smt. Naseeb Afshan ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.99 OF 2008 Date:12-12-2011 Between: Sammeta Venkateswararao …Appellant And The State of A.P. represented by the Public Prosecutor, …Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.99 OF 2008 JUDGMENT: (Per Hon-ble Sri Justice R.Kantha Rao) This criminal appeal is preferred against the judgment dated 07.02.2007 passed by the I Additional Sessions Judge, Krishna at Machilipatnam in S.C.No.387 of 2003. 2. The appellant-sole accused was tried by the learned Additional Sessions Judge for the charges under Sections 436 and 302 of IPC. The appellant was found guilty for both the charges, and was convicted. He was sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,000/- in respect of the conviction for the offence under Section 436 IPC. He was further sentenced to undergo imprisonment for life and to pay fine of Rs.2,000/- in respect of conviction for the offence under Section 302 IPC. Both the substantive sentences were directed to run concurrently. 3. Challenging the said order of conviction and sentence, the appellant preferred the present criminal appeal. 4. The appellant-Sammeta Venkateswara Rao is the brother of PWs.1 and 2. Sammeta Abhimanyudu (LW-1) is their father. The father partitioned the properties among the sons but did not register the property fell to the share of the appellant in his name in spite of his insistence, on the ground that the appellant was addicted to drinking and he will squander away the property. The appellant had property disputes with PWs.1 and 2. The appellant is said to be a drunkard and was in the habit of creating disturbances in the village. Owing to his disputes with the brothers, it is said that the appellant three months prior to the incident set fire to his own haystack with a view to set ablaze all the houses in the vicinity. Similarly, about 18 days prior to the incident, he set fire to the haystack and black-gram waste of PW-1. These incidents were brought to the notice of the villagers who chastised the appellant. 5. While so, on the intervening night of 5/6.05.2003 in the early hours the appellant proceeded to the house of PW-1 with a view to set fire the house, on seeing him street dogs started barking, then PW-1 and his wife Punyavathi (LW-3) woke up and found the appellant standing near their house, they questioned as to why he came there during night time. It is said that the appellant replied to them that the thieves are moving in the vicinity and therefore he came there to caution them to sleep inside the house. PW-1 and his wife did not care for the advise of the appellant and they slept outside the house, while the daughters of PW-1 i.e. deceased Nos.1 and 3 Sammeta Lokeswari and Sammeta Durga and also son of PW-2 i.e. deceased No.2- Sammeta Rajesh) were sleeping outside the house of PW-1. At about 3.30 a.m. the appellant lit fire to a paper and with the said burning paper set the house of PW-1 ablaze. The house was caught in huge flames which attracted the attention of the villagers. The villagers gathered but they could not extinguish the fire. Some among the villagers telephoned to the fire service department and in and about an hour thereafter, the fire service department people came with the necessary equipment and extinguished the fire. In the meanwhile, the deceased 1 to 3, the children who were sleeping in side the house were burnt to death. 6. Thereafter, on a report lodged by the father of the appellant i.e. Abhimanyudu (LW-1), PW-27, Head Constable working in Gudlavalleru Police Station registered a case in Crime NO.33 of 2003 under Section 174 Cr.P.C. Subsequently, as per the prosecution version the appellant who was repenting for his heinous act approached PW-14, the Panchayat secretary on 07.05.2003 at about 6 p.m. while he was at his office confessed the guilt before him. He stated before him that he set fire to the house of PW-1 owing to the property disputes he had with PW-1. PW-14 recorded the confessional statement of the appellant in the presence of PW-18 and Gajuala China Kannaiah-LW-25. The confessional statement is marked as Ex.P-7 in the case. Thereafter, PW-14 took the appellant to Gudlavalleru Police Station on 07.05.2003 along with his village servant and handed over him to the Sub-Inspector of Police together with the confessional statement Ex.P-7 recorded by him. Thereafter, PW-13, the Sub-Inspector of Police before whom the appellant was produced altered the section of law from 174 Cr.P.C. to Sections 436 and 302 of IPC wherein sections of law were altered. The FIR is marked as Ex.P-22. 7. It is also the version of the prosecution that PW-5 Thota Srinivas Rao and PW-6 Gajula Venkateswara Rao, the villagers saw the appellant setting fire to the house of PW-1 with a burning newspaper but they did not disclose the same to anybody immediately being threatened by the accused and also being afraid of him. Subsequently they disclosed about their witnessing the occurrence to PW-30, the Inspector of Police who is the investigating officer in this case on the assurance given by them that they need not be afraid of the appellant. PW-30, the Inspector of Police conducted the entire investigation and on completing the investigation, he filed the charge sheet against the appellant. 8. In the course of the trial before the learned Additional Sessions Judge, the prosecution in order to establish the guilt of the accused examined PWs.1 to 31, marked Exs.P-1 to P- 26 and M.Os.1 to 3. The learned trial court upon considering the entire evidence on record, convicted the appellant for the offences under Sections 436 and 302 IPC and sentenced him to punishment as mentioned above. 9. Now the point for determination in this appeal is as to whether the order of conviction and sentence passed by the learned trial Court against the appellant can be sustained. 10. We have heard Smt. Naseeb Afshan, the learned counsel appearing for the appellant and the learned Additional Public Prosecutor representing the State. 11. Learned counsel appearing for the appellant would submit that PWs.5 and 6 were introduced as eyewitnesses as an afterthought. According to their version they did not disclose the incident to anybody for about 3 days and no reliance can be placed on their evidence. She would also further submit that it is quite unsafe to rely on the extra judicial confession allegedly made by the appellant as a piece of evidence to record a conviction. 12. On the other hand, the learned Additional Public Prosecutor would contend that the evidence is reliable and convincing and some minor inconsistencies and discrepancies in the evidence do not render the testimony of witnesses undependable and the learned trial Court rightly convicted the appellant. He therefore submits that the conviction and sentence passed by the trial Court needs no interference. 13. We have thoroughly scrutinized the evidence on record in the light of the submissions made by both the counsel. Sammeta Abhimanyudu (LW-1) is no other than the father of the appellant. Despite the previous conduct of the appellant, he might not have mentioned the name of the appellant in the FIR because the appellant is no other than his son. That might be the reason for LW-1 for not mentioning in the FIR that he was suspecting the appellant as the person responsible for the incident. On that score the genuineness of the prosecution version cannot be doubted. Further on the date of the trial LW-1 expired and prosecution could not get him examined to elicit the real facts. PWs.5 and 6, the inhabitants of the appellant’s village have categorically deposed before the trial court that while they were proceeding to search for the she-buffalos of PW-5 behind the field of PW-1, they saw the appellant setting fire to the house of PW-1 with the aid of newspaper. They questioned him but the appellant replied that it was their family matter, they had no business to interfere. They also deposed that the appellant threatened them to kill by showing knife and being afraid of the appellant they did not disclose the incident to anybody. The learned counsel appearing for the appellant pointed out that the conduct of PWs.5 and 6 in not informing to anybody for 3 days, is unnatural and no reliance can be placed on their evidence. As to this, we wish to state that after witnessing the incident of crime, all the witnesses will not react in a uniform manner. The witnesses react in different ways owing to their conduct and also basing on the situation, PWs.5 and 6 stated in their depositions that being afraid of the appellant and in view of the threats hurled by him, they did not disclose the incident to anybody and only after being assured by the Inspector of Police they gained courage and gave statement before him as to what they had actually witnessed. We do not think anything unnatural in the conduct of PWs.5 and 6. This apart, PW-12, Srinivasa Rao stated in his evidence before the trial court that on 07.05.2003 while he and Thota Reddemmna (LW-21) were proceeding to attend agricultural operations, the appellant approached them and confessed before them that he had set fire to the house of PW-1 and that he was repenting for the crime committed. He further stated that the appellant sought their advise as to what was to be done and thereafter he advised the appellant to approach either the panchayat secretary or Gudlavaleru police. 14. PW-14, the panchayat secretary stated in his evidence that on 07.05.2003 at about 6 p.m. while he was in his office, the appellant approached him and stated to him that he was feeling sorry for causing death of the deceased 1 to 3 and his conscience persuaded him to come before PW-14 and confess the guilt before him. PW-14 further deposed that the appellant admitted that he set fire to the house of PW-1 as he had property disputes with him. PW-14 further deposed that he recorded the confessional statement of the accused in the presence of PW-8 and Gajula China Karraiah (LW-25) and thereafter produced him before the police along with the confessional statement. 15. It would appear to be natural for the appellant to approach either to PW-12 or PW-14 and make confessional statement because by then it was became known in the village that the appellant was responsible for the crime and that three children were burnt alive in the house of PW-1. Therefore, there was every possibility for the appellant to approach PW-12 or PW-14 for the purpose of revealing the truth and seeking their help. Unless the appellant approached them, they would not be resorted to falsely implicate him in a grave crime of this nature as they had absolutely no enmity with him. 16. This apart, there is the evidence of PWs.1 and 2 about the disputes that the appellant had with them and also the fact that their father did not register the land in the name of the appellant as he was in the habit of consuming liquor. PW-1 in particular stated that the appellant is having enmity with him and that the appellant was demanding his father to register the land in his name. His evidence also is to the effect that they used to tell the people in the village not to lend money to the appellant as he would spoil the money by consuming liquor. Therefore, it is obvious that the appellant was in inimical terms with his brothers and his father and therefore he had enough motive to commit the offence. Thus, on a proper appreciation of the above mentioned evidence on record, the learned trial Court rightly convicted the appellant for the offences under Sections 436 and 302 of IPC and sentenced him to punishment as mentioned above. The conviction and sentence passed by the trial Court against the appellant do not call for any interference in this appeal. 17. For the reasons aforementioned, the conviction and sentence passed by the trial Court against the appellant are confirmed and the criminal appeal is dismissed. ____ ____________ A.GOPAL REDDY,J ______________ R.KANTHA RAO,J Date:12-12-2011 Note: L.R. Copy to be marked. B/O CCM HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL NO.99 OF 2008 (Judgment of the Bench delivered by Hon’ble Sri Justice R.Kantha Rao) Date:12-12-2011