THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1631 of 2006 Date: 22.09.2009 Between : Dama Gangadhara Reddy and another. … Appellants And State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1631 of 2006 ORAL JUDGMENT : (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the appellants as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellants are Accused Nos.1 and 2 in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 10.11.2006, in S.C.No.826 of 2004, passed by the VI Additional Sessions Judge (F.T.C.), Gooty, Anantapur District, convicting the appellants/A.1 and A.2 for the offence punishable under Section 302 of Indian Penal Code (for brevity “I.P.C.,”) and sentencing each of them to suffer imprisonment for life and also to pay a fine of Rs.250/- each, in default to suffer Simple Imprisonment for a period of one year each. 4. The case of the prosecution, in a nutshell, is as follows: P.W.1 is the wife and P.W.2 is the brother of the deceased S.Nageswara Reddy. The deceased was Vice President of Gram Panchayat. He was to do small contracts and agriculture. A.1 and the deceased were neighbours and there is a joint wall separating their houses. There were house disputes between them. On the date of the incident at about 8-30 p.m., the deceased and P.W.1 went to their sunflower crop to protect their crop from wild pigs damage and slept near neem tree on cot. At Thimmappa Bus Stop at about 9-00 p.m., P.W.3 saw A.1 and A.2 getting down from the jeep. When he questioned, A.1 informed him that he had come down on some work. At about 10-00 or 10-30 p.m., on hearing the cries, P.W.1 woke up and saw A.1 and A.2 hacking the deceased with sickles. On seeing the same, out of fear she rushed to P.W.2 and informed the same. On that P.W.2 and other family members immediately reached the scene and found the deceased lying dead. Then at about 12-00 mid night while P.W.4 watering the sunflower crop saw A.1 and another person going towards Jammalapadu village with blood stained clothes armed with sickles. 5. In the meanwhile, P.Ws.1 and 2 rushed to the Police Station and at about 2-00 a.m., lodged Ex.P.1 report and P.W.9 the then Head Constable registered the same as case in Crime No.37 of 2003 and issued F.I.R. under Ex.P.8. Further investigation was taken over by P.W.12, C.I. of Police, Tadipatri. At about 4-00 a.m., he visited the scene of offence and prepared an observation report and rough sketch of the scene under Ex.P.12. He then held inquest over the dead body in the presence of P.W.5 under Ex.P.2 panchanama. Thereafter he forwarded the dead body for postmortem examination. 6. On 17.7.2003, on requisition, P.W.7 the then C.A.S., Government Hospital, Tadipatri, held autopsy over the dead body and opined that the cause of death was due to shock due to injury to the vital organ. Ex.P.7 is the postmortem report. 7. On 13.1.2004 at about 1-00 p.m., when P.W.5 Panchayat Secretary of Gandlapadu village was at his Panchayat Office, A.1 and A.2 visited him and made an extra judicial confession. P.W.5 reduced the same into writing. Ex.P.3 is the confession statement. Thereafter, he got the accused surrendered before P.W.12 C.I. of Police. Ex.P.4 is the letter of P.W.5. P.W.12, the C.I. of Police arrested them and during the course of their interrogation, at their instance MOs.12 and 13 sickles, MOs.14 and 15 shirts of accused were recovered under Ex.P.6 panchanama. A.1 was then sent for examination of his injury. Accordingly, on 14.12.2004, P.W.8 Deputy Civil Surgeon, Government Hospital, examined A.1 and issued Ex.P.9 wound certificate. He then sent a requisition to the Magistrate concerned to held test identification parade. 8. On 7.2.2004, P.W.10 Judicial First Class Magistrate, Anantapur, conducted test identification parade wherein P.Ws.1, 3 and 4 identified A.1 and A.2. Ex.P.10 are the proceedings of test identification parade conducted by P.W.10. After receiving relevant documents and on completion of investigation, P.W.12 filed the charge sheet. 9. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.18, besides marking material objects MOs.1 to 15. On behalf of defence, none were examined except marking Ex.D.1 marked portion of Section 161 Cr.P.C. statement of P.W.4. 10. Considering the entire evidence on record, both oral and documentary, the Court below convicted and sentenced the appellants/A.1 and A.2 for the offence punishable under Section 302 I.P.C., as stated supra. Hence the present criminal appeal by the appellants/A.1 and A.2. 11. It is the contention of Sri C.Padmanabha Reddy, learned Senior Counsel, appearing for the appellants that the prosecution had miserably failed to establishing its case against the appellants. The evidence of P.W.1, who is stated to be an eye witness, is not at all reliable and trustworthy. He also contends that the evidence of other witnesses i.e., P.Ws.2, 3, 4 and 5 also irrelevant and is not trustworthy. Therefore, the Court below was in error in appreciating the evidence of the said witnesses while recording the conviction and sentence against the accused. 12. On the other hand, the learned Public Prosecutor had contended that the evidence of P.W.1 is absolutely reliable and corroborates the contents of Ex.P.1. He also points out about the evidence of P.W.5 before whom both the accused said to have made extra judicial confession. 13. In view of the rival contentions, the only question that falls for consideration is whether the Court below had properly appreciated the evidence on record before recording the order of conviction and sentence against the appellants/A.1 and A.2 for the offence punishable under Section 302 I.P.C.? 14. It is to be seen that P.W.1, wife of the deceased, deposed that “…..I do not know the accused persons. I have seen the accused 1 and 2 on the date of incident first and again I have seen them at the Anantapur Jail…..” She further stated that “I identified A.1 and A.2 with an identification parade held in Anantapur Jail. I have seen the accused persons when woke up after hearing cries of my husband in the moon light. There were house dispute between A.1 and my husband and that A.1 and A.2 killed my husband as eyesore as my husband was earning on contracts.” In the cross-examination, P.W.1 deposed that “A.1 is my neighbour. There is joint wall separating our houses. There were house dispute between A.1 and my husband two years after my marriage.” 15. From the above testimony of P.W.1, both in chief examination as well as in the cross-examination, it is obvious that there is any amount of conflict or inconsistency as regards the identification of A.1. At this juncture itself, it is to be seen that nothing has been stated about A.2. P.W.1 stated that for the first time she had seen A.1 and A.2 on the date of incident and again only in Anantapur jail during the course of test identification parade. This statement is falsified by her own statement that A.1 and the deceased are immediate neighbours divided by a common compound wall separating their houses. In such circumstance, it is rather surprised as to how P.W.1 could say that she had seen A.1 for the first time on the date of incident only and thereafter in the jail. 16. It is further to be seen that from her own evidence of P.W.1, her marriage was performed about 17 years back and according to P.W.1, she knew A.1 since about 15 years. In such circumstances, her evidence that she does not know A.1 and A.2 before and only for the first time she had seen A.1 on the date of incident cannot be believed. Therefore, the evidence of P.W.1 is not truth-worthy, unreliable and unrealistic. Even assuming that her evidence is to be accepted, it should be only to the extent of rivalry between A.1 and the deceased and nothing more. Therefore, at the threshold, the evidence of P.W.1 eye witness had proved to be unrealistic and not trustworthy. 17. The evidence of P.W.2, who is the brother of the deceased, is to the effect that at about 10-30 p.m., P.W.1 came to his house and informed that she was fearing that two persons were attacking the deceased in the field. Then he along with P.W.1 and others went to the fields and found the deceased dead. 18. From the above evidence of P.W.2, except the information being furnished by P.W.1, he had no knowledge or source of knowledge about the attack by A.1 and A.2 on the deceased. Therefore, the evidence of P.W.2 has no relevance nor the same is useful to the case of the prosecution. 19. P.W.3, who is a resident of the village, deposed that he knows A.1, who was a resident of the same village. He also stated that at about 9-00 p.m., when he reached Thimmapur Bus Stop, he noticed A.1 and A.2 while getting down from the Jeep and when he questioned A.1 why he got down from the Jeep at that time, A.1 appears to have stated that he came on some work. On the next day morning this witness came to know that the deceased was killed. 20. By examining P.W.3 the prosecution wants to prove that A.1 and A.2 arrived the village only to commit the murder of the deceased. But the evidence of P.W.3 about his watching A.1 and A.2 getting down from the Jeep at Thimmapur Bus Stop cannot be believed nor his evidence is of any use to the case of the prosecution in order to prove the guilt of the accused. 21. Coming to the evidence of P.W.4, who is also a resident of the village, he stated that during the time of the incident, he was watering his land from the borewell and he witnessed A.1 and another person going towards Jammalapadu village and at that time he observed that their dresses were stained with blood and they were handling the sickles. On the next day morning, he came to know that the deceased was murdered. He further stated that he identified A.1 and A.2 in the Jail at Anantapur during test identification parade. He further stated that A.1 was a resident of the same village previously. 22. From the above, it is evident that P.Ws.1 and 4 have participated in the test identification parade along with others. But, the other persons who participated in the identification parade along with P.Ws.1 and 4 were not examined as witnesses. Therefore, we have to examine the relevancy of the testimony of P.Ws.1 and 4 as regards their participation in the test identification parade and identifying A.1 and A.2. 23. In this regard, it is to be seen that no descriptive particulars were given by these two witnesses. In fact, there is no need for them to give any descriptive particulars insofar as A.1, inasmuch as it is their evidence that A.1 already belongs to the same village and known to them since long. But, they did not know anything about A.2. 24. Therefore, when they could identify A.1, we are unable to comprehend as to what is the necessity to conduct the test identification parade to identify A.1. Such identification, in normal course, would be resorted to only when the witnesses give the descriptive particulars of the persons involved in the crime, who was not seen before. 25. In the instant case, A.1 was very much known to P.W.1 as a neighbour and to P.W.4 as a villager. If at all there is any necessity, the test identification parade should have been conducted only to the extent of identifying A.2. It appears, there was an identification with regard to the involvement of A.2 in the commission of offence. 26. But, again what is more relevant in this context is that the incident occurred on 16.7.2003, the accused were arrested in the month of January, 2004 and test identification parade was conducted on 7.2.2004 i.e., after seven months from the date of the incident. What are the precautions that have been taken by the prosecution while recording the confession statement of the accused are not known. Above all, admittedly, there were disputes between the deceased and A.1 and both belong to the same village. Therefore, in view of the admitted knowledge of the prosecution witnesses about A.1 and the disputes between the deceased and A.1, absolutely there was no need to conduct test identification parade insofar as A.1 27. It is further surprising to note that nobody did give any descriptive particulars of A.2. In such a case, it is again not comprehensible as to how A.2 could be arrested at all and subjected to test identification parade. Therefore, there appears to be some sort of attempt to implicate A.2 also in the offence. In all other aspects, the value of the testimony of P.Ws.1 to 4 absolutely is of no use to bring home the guilt of A.1, much less A.2. 28. The prosecution further made an attempt to establish its case against A.1 and A.2 by way of introducing the theory of extra- judicial confession. P.W.5 is the person before whom both the accused appears to have made extra-judicial confession. 29. It is the evidence of P.W.5, who is stated to be the Village Secretary, that A.1 and A.2 came to him on 13.1.2004 and confessed that they were the perpetrators of the offence. He stated that he did not know the accused before. In such a case, it is rather surprising to note that as to why A.1 and A.2 approached P.W.5, a stranger, and confessed about the commission of offence, that too after a lapse of about seven months after the incident. The said gap of seven months itself is sufficient to doubt the veracity of the evidence of P.W.5 regarding the extra-judicial confession alleged to have been made by A.1 and A.2 before him. 30. It is the further deposition of P.W.5 that upon such confession made by both the accused, their statements were reduced into writing under Ex.P.3 and they were taken to the police and handed over them to the police along with Ex.P.3. Upon such production of the accused and Ex.P.3, according to P.W.5, the police had destroyed Ex.P.3 confession statement and recorded the statements of A.1 and A.2 afresh. 31. The most intriguing aspect to be noticed is the said extra-judicial confession made before him in the presence of the police was recorded by P.W.5 to the dictation of the police. If this were the procedure adopted by the police in recording the extra- judicial confession made by the accused, who were presented by an independent person i.e., P.W.5, we have to necessarily hold that this is totally untenable and liable to be deprecated and we may have to go to the extent of reminding the police officials concerned to go through the fundamentals and procedure of recording extra- judicial confession. 32. As soon as the extra-judicial confession was re- drafted, that too to the dictation of the police, the original extra- judicial confession statement recorded by P.W.5 loses its sanctity and the character of being an extra-judicial confession and its place the statement recorded by the police would gain the status of a statement made by the accused in the presence of the police and the value of such statement made before the police, as everyone, who has the basic knowledge of criminal investigation, knows is a nullity and is of no use. 33. Further more, in Ex.P.1 report, P.W.1 did not mention about the participation of either A.1 or A.2, except saying that two persons committed the offence. But, while deposing in the Court, for the first time she stated about the participation of A.1 and very little and faintly about A.2, which is not at all sufficient to prove the guilt of A.2. 34. For the foregoing, we cannot sustain the impugned judgment of the Court below and consequently the conviction and sentence recorded by the Court below against the appellants/A.1 and A.2 is liable to be set aside. 35. In the result, the Criminal Appeal is allowed, setting aside the judgment of conviction and sentence, dated 10.11.2006, in Sessions Case No.826 of 2004, passed by the VI Additional Sessions Judge (F.T.C.), Gooty, Anantapur District, against appellants/A.1 and A.2 for the offence punishable under Section 302 I.P.C., and they are acquitted of the said offence. 36. The appellants/A.1 and A.2 shall be released forthwith, if not required in any other case. The amount of fine, if any, paid shall be refunded to them. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 22.09.2009. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1631 of 2006 22.09.2009 (Msr)