THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 299 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice K.C.Bhanu) 1. This Criminal Appeal is directed against the judgment dated 26.02.2007 in Sessions Case No.457 of 2004 on the file of the IV Additional Sessions Judge (II Fast Track Court), Nalgonda, whereunder and whereby the appellants/A.1 and A.2 were found convicted of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, ‘I.P.C.’) and sentenced to undergo imprisonment for life. 2. The case of prosecution, in brief, may be stated as follows: P.W.5 is the father and P.W.1 is the friend, of Mohd. Arif Pasha (hereinafter referred to as ‘the deceased’). P.Ws.1 to 6, 7 to 11 and 15 are eye-witnesses to the incident. The deceased got married sister of A.1 in the year 2001. After some time, some misunderstandings arose between the deceased and his wife. Wife of the deceased lodged dowry harassment case in crime no.143 of 2002 of Nalgonda I Town police station against the deceased and his entire family members in Nalgonda police station in the year 2002, and she also filed a maintenance case against the deceased. On 20.11.2003, the deceased came along with P.W.1 to attend the court in the said maintenance case. At about 10.50 A.M., the accused armed with deadly weapons i.e. axe and knife, attacked the deceased in the premises of Court Buildings, Nalgonda. P.Ws. 3, 4 and some others tried to chase them, but both the accused threatened them and fled away on a scooter. Immediately, P.Ws. 1 and 2 shifted the deceased to Government Hospital, Nalgonda for treatment. The deceased died at 11.20 AM on the same day. At about 10.55 AM, P.W.3-Police Constable informed Nalgonda I Town police station through cell phone about the incident. On receipt of the same, P.W.21-Assistant Sub Inspector of Police entered the said information in Station General Diary. Thereafter, at about 12.15 noon, P.C. 120 (N.E.) Raghupathi gave a written report endorsed by the Sub Inspector of Police. Basing on that, P.W.21 registered a case in crime no.196 of 2003 for the offence punishable under Section 302 read with 34 I.P.C. against A.1, A.2 and another and issued Ex.P26- F.I.R. P.W.24 took over investigation from P.W.21, visited Government Hospital, Nalgonda on the same day and recorded statements of P.Ws. 1 to 5, 16 and another. P.W.24 conducted inquest over the dead body of the deceased in the presence of P.Ws. 20 and 23 under Ex.P32-inquest panchanama. During inquest, P.W.24 seized clothes of the deceased. Later, the dead body was sent for postmortem examination to the Government Headquarters Hospital, Nalgonda. At about 4.00 PM, P.W.27-Civil Assistant Surgeon conducted autopsy over the dead body of the deceased under Ex.P43-postmortem report and opined that the cause of death of the deceased was due to haemorrhage and shock. On 20.11.2003, P.W.24 visited the scene of occurrence and conducted scene of offence panchanama in the presence of P.Ws.20 and 23, under Ex.P34-scene of offence panchanama. P.W.24 drew Ex.P35-rough sketch. Later, he examined statements of P.Ws.6 to 13 and 15. On 27.11.2003 at 3.00 PM, A.1 and A.2 surrendered before I Town police station, Nalgonda. P.W.24 arrested them and recorded their confessional statements in the presence of P.Ws.17 and 19. At the instance of A.2, P.W.24 seized knife, and at the instance of A.1, he seized one axe, and also seized one scooter bearing registration no.AP11L 4576 from the bus stand shed, Miryalaguda in the presence of P.Ws.17 and 19. Exs.P36 and 37 are the confessional panchanamas of A.1 and A.2 respectively. Exs.P38 and P39 are seizure panchanamas of A.1 and A.2 respectively. P.W.24 gave requisition to the concerned Magistrate for conducting test identification parade and it was conducted by P.W.22 on 20.12.2003. After completion of investigation and collecting the required documents, P.W.24 laid the charge sheet. 3. The trial Court framed the following charge against the accused. “That A1 and A.2 of you, on or about the 20th day of November, 2003 at about 10.50 hours, in the Court building Premises, Nalgonda, have committed murder intentionally or knowingly causing the death of Mohd. Arif Pasha (deceased) by hacking him on his chest, hands and back with axe and knife, and thereby you have committed an offence punishable under Section 302 r/w 34 of the Indian Penal Code, and within my cognizance.” When the charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, prosecution examined P.Ws. 1 to 27 and got marked Exs.P1 to P43, besides case properties M.Os. 1 to 9. 5. After closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating evidence found against them in the evidence of prosecution witnesses. The accused denied the same and reported no defence evidence. 6. The trial Court, upon appreciation of the evidence on record, found the appellants/A.1 and A.2 guilty of the offence punishable under Section 302 I.P.C., accordingly convicted and sentenced them as above. Aggrieved thereby, the present Criminal Appeal is preferred by the accused. 7. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the appellants/A.1 and A.2 for the offence punishable under Section 302 I.P.C. beyond all reasonable doubt and whether the conviction and sentence recorded by the learned Sessions Judge are liable to be set aside or modified ? 8. The learned senior counsel Sri C.Padmanabha Reddy appearing for the appellants contended that it is not safe to place an implicit reliance on the interested and discrepant testimony of P.Ws. 3, 4 and 6 whose presence at the time of the incident is very doubtful; that, no material is filed to show that they had come to the court on the date of the incident in connection with court cases; that, the other witnesses P.Ws.1, 2, 7 to 11, who were also present at the time of the incident, did not speak about the presence and participation of A.1 and A.2 in causing injuries to the deceased; that, it is not possible for P.Ws.3, 4 and 6 to identify the assailants after lapse of 3 years in the court; that, though a test identification parade was conducted by the prosecution, in view of the fact that there is evidence on record, which would go to show that these three witnesses, being Police Constables, had an opportunity to see the accused and that photographs of the accused were shown to them as seen from the evidence of P.W.3, the identification proceedings loose its significance and importance; that, the earliest investigation discloses that three assailants participated in commission of the crime, but the charge sheet is filed only against two accused; that, the first information report was brought into existence after due deliberations; that, the prosecution failed to prove the motive for the accused to commit the offence; that, the vehicle in which both the accused fled away is different vehicle from the vehicle which was seized basing on the confessional statement of the accused, and so, the trial court erred in convicting the appellants basing on the suspicious and discrepant evidence of P.Ws.3, 4 and 6. Hence, he prays to set aside the conviction and sentence recorded against the appellants/A.1 and A.2. 9. On the other hand, the learned counsel representing the Public Prosecutor contended that presence of P.Ws.3, 4 and 6 at the relevant point of time of the incident is established beyond reasonable doubt because they have given the case particulars in which they attended the Court on the date of the incident; that, there was every possibility for them to witness the incident as the incident had happened in the broad day light in the court premises; that, there is no other reason for them to speak false against the appellants so as to implicate them in a case of this nature; that, as P.Ws.3, 4 and 6 had seen the assailants for a considerable length of time, their physical features must have been imprinted in the mind of these witnesses so that they could recollect the same and identify the accused at a later point of time; that, there is nothing abnormality in the evidence of these witnesses to identify the accused; that, as the presence of these witnesses is established beyond reasonable doubt, their evidence can be accepted to base a conviction; that, the trial Court, upon considering the evidence on record, rightly placed reliance on the evidence of these witnesses and convicted and sentenced the accused, and there are no grounds to interfere with the same. Hence, he prays to dismiss the Criminal Appeal. 10. P.W.24-the then Inspector of Police, conducted inquest on the dead body of the deceased under Ex.P32- inquest report. It is the case of prosecution that the inquest was conducted in the presence of P.Ws. 20 and 23. But, both the witnesses did not support the case of prosecution. As seen from the evidence of P.W.24, it is clear that he held inquest on the dead body of the deceased and the inquest mediators opined under Ex.P32 that the deceased died as a result of the injuries sustained by him. 11. P.W.18 is the Doctor is the Doctor who examined the injured on 20.11.2003 at 11.10 AM and found two incised injuries and two cut injuries. But, the patient died at 11.20 AM on the same day. P.W.27 is the Doctor, who conducted autopsy on the dead body of the deceased and found the following external injuries. 1) incised wound 3 ½ inch x ½ x ½ inch, web space between thumb and index finger of right hand; 2) incised wound 2 ½ x ½ x ½ inch medial side of left elbow; 3) sutured wound 2 ½ x in length (transversely placed between ribs) 4th I.C. space left side of sternum; 4) incised wound 2 ½ x ½ x 1 inch right renal angle. On internal examination, he found incised wound 2 x 1 cm; (opening into ventricular cavity) right ventricle (transversely placed). He opined that cause of death of deceased was due to haemorrhage and shock secondary to the injuries and the time since death is 0 to 6 hours. He issued Ex.P43- postmortem report. The evidence of Doctor remained unchallenged. Therefore, the prosecution established its case beyond reasonable doubt with regard to homicidal nature of death of the deceased. 12. P.W.24 also observed the scene of occurrence under Ex.P34-scene of offence panchanama. He seized clothes of the deceased along with blood stains. Even the accused did not deny or dispute about the scene of occurrence which is within the premises of Judicial Magistrate of First Class Court, Nalgonda. Even the hostile witnesses P.Ws.7, 9, 10, 11 and 15, who are practising advocates, also stated that the deceased sustained injuries and P.W.2 and others took him to the Government Hospital. But, it is the case of the accused that some unknown persons, wearing masks, attacked the deceased in the court premises. Therefore, from the evidence on record, it is clear that the incident had happened in front of the court of the Judicial Magistrate of First Class, Nalgonda. Now, it has to be seen whether the appellants/A.1 and A.2 are the assailants of the deceased. 13. P.Ws. 1, 5, 7, 11, 13, 15, 17, 19, 20 and 23 did not support the case of prosecution. They have given a complete go-by to their earlier version. Therefore, the prosecution sought permission to cross-examine them. Even after cross-examination by the Public Prosecutor, nothing has been elicited in their evidence to connect the accused with the crime. 14. It is not in dispute that on the date of the incident, P.W.1 and the deceased came to Nalgonda Court as a case was pending against the deceased. A.1 is brother of wife of the deceased. P.W.2 was the Advocate for the deceased. It is in his evidence that, on the date of the incident, the deceased attended the Court at Nalgonda in connection with Maintenance Case No.31 of 2002 on the file of the Munsif Magistrate Court, Nalgonda, and as the Presiding Officer was on leave, the case was adjourned to 30.12.2003. While the deceased was about to leave the premises, the incident had taken place. 15. The prosecution has not come forward with any definite motive for the accused to eliminate the deceased in the broad day light, that too, in a busy place viz. Court premises. There cannot be any dispute that motive is not an integral part of crime, but it is only an aid in assessment of criminality. Motive assumes importance when there is evidence to speak about the same. However, non-proof of motive or absence of motive, by itself, is not a ground to discredit the testimony of prosecution witnesses, if otherwise their evidence is found to be true, trustworthy and reliable. When the evidence of eye-witnesses is put in the category of wholly reliable and their presence is established, then motive looses its significance. Therefore, the contention of the learned senior counsel appearing for the appellants that the prosecution failed to establish motive, by itself, cannot be a ground to discredit the evidence of prosecution witnesses. 16. Entire case of prosecution rests upon the evidence of P.Ws.3, 4 and 6, who are Police Constables attached to different police stations in Nalgonda district. Their case is that they came to the court on the fateful day in connection with criminal cases relating to their respective police stations. Admittedly, the accused are strangers to these three witnesses. P.W.3 categorically stated that he came to the court to attend in C.C. Nos.290 of 2003 and 610 of 2003 on the file of the Judicial Magistrate of First Class, Nalgonda, and as the Presiding Officer of the Court was on leave, he was proceeding towards Excise Court, then he heard the cries in front of the Judicial First Class Magistrate Court and saw the incident. 17. Similarly, P.W.4 stated that he attended court in C.C. No.914 of 2001 on the file of the Judicial Magistrate of First Class (Excise), Nalgonda, and as the said case was adjourned, he was standing in front of the old building of the Excise court; in front of Judicial Magistrate of First Class Court, a commotion was going on and a person fell down and A.1 and A.2 were running away from the scene of offence. Similarly, P.W.6 attended the Court in C.C. No.208 of 2001 on the file of the Judicial Magistrate of First Class (Excise), Nalgonda, and while he was talking with witnesses under trees situated in front of the Munsif Magistrate Court, he saw A.1 hacking the deceased with axe and A.2 stabbing the deceased with knife. Though a specific suggestion was put to P.Ws. 3 and 6 that they were not present at the relevant point of time of the incident, no such suggestion was put to P.W.4, who saw the accused running away from the scene of occurrence. When these witnesses have specifically come forward with definite purpose of attending the court i.e. in connection with criminal cases, the same was not shown to be false or incorrect. 18. Further more, P.W.3 is the person who immediately telephoned to the I Town police station and informed about the incident. P.W.21 is the Sub Inspector of Police, I Town police station, Nalgonda at the relevant point of time of the incident. He stated that on 20.11.2003 at about 11.00 AM, one Woman police constable 929 Vasavidatta was in set duty and at about 10.55 AM, she received information from P.W.3 through cell phone with regard to hacking of a person by two persons in the Court premises, Nalgonda and that the assailants went away on boarding a scooter. Immediately, the said information was entered in General Diary by P.W.21. Thereafter, one P.C.120 by name Raghupathi, gave a written complaint, basing on which a case in crime no.196 of 2003 was registered against A.1 and two others. Therefore, within five minutes after occurrence of the incident, P.W.3 gave information to police with regard to the said incident viz. two persons attacking the deceased with axe and knife in court premises and fleeing away from the scene of occurrence on a scooter. The case of the prosecution is also that two persons attacked the deceased in the court premises and flew away on a scooter parked outside the court premises. So, this aspect of the case clearly shows that P.W.3 must have present in the court premises at the relevant point of time of the incident. Unless he was present, he would not have given the information as to how the incident had taken place. It is quite possible for P.W.3 to inform the police station about the incident immediately after the incident. It is not the case of the accused that the Women Constable Vasavidatta did not receive any information on set from P.W.3 and that P.W.21 did not make any entry in the Station General Diary. Therefore, presence of P.W.3 at the relevant point of time of the incident cannot be doubted. 19. P.Ws. 4 and 6 also categorically stated as to the purpose for which they went to the Judicial Magistrate of First Class Court at Nalgonda on the fateful day. Their presence at the time of the incident is also spoken to, by P.W.3. Nothing has been elicited to discredit their testimony with regard to their presence at the time of the incident. There is nothing unusual for the Police Constables like P.Ws.3, 4 and 6, who are entrusted with the work of attending the court cases, to attend the court on a court working day at 10.00 AM or prior to commencement of court proceedings at 10.30 A.M., in connection with cases. Because the Presiding Officer of the Court was not there, the concerned Clerk gave adjournment dates in the cases and therefore the deceased has to wait for 15 to 20 minutes to know the next date of adjournment, and after knowing the date from P.W.2, his advocate, he was about to leave the court premises, and it is at that time, the incident had taken place which is at about 10.50 A.M. 20. Because, admittedly, the accused are strangers to P.Ws.3, 4 and 6, now, it has to be seen whether the evidence of P.Ws.3, 4 and 6 is acceptable with regard to identification of the accused. P.W.24-investigating officer gave a requisition to P.W.22-Magistrate to conduct test identification parade. Accordingly, P.W.22 held test identification proceedings in the District Jail premises at Nalgonda. After following due procedure, two suspects were mixed with 10 non-suspects, who are with similar features of the suspects, chosen by the suspects. The test identification parade proceedings are marked as Ex.P28. It is clear from Ex.P28 that these three witnesses P.Ws.3, 4 and 6 identified both the accused. 21. The accused were arrested on 27.11.2003 and the test identification parade was conducted on 20.12.2003 i.e. within 20 days after arrest of the accused. P.W.3 was working as Police Constable in I Town police station, Nalgonda, where the present crime is registered. That is the reason why he admitted in cross-examination that before the test identification parade, he saw A.1 and A.2 in police station when they were in custody and other constables were attending the court along with the accused. This witness appears to be a truthful witness because when the accused surrendered themselves before the Inspector of Police on 27.11.2003, they must have kept in lock-up before being produced before the concerned Magistrate. So, there was an occasion for P.W.3, who was working in the same police station, to see the assailants A.1 and A.2 before holding the test identification parade. He stated the same in his evidence. Therefore, we are of the opinion that P.W.3 is a witness of truth and his identification of A.1 and A.2 in the test identification parade conducted by P.W.22 cannot be taken into consideration for the purpose of testing his memory. In so far as P.Ws. 4 and 6 are concerned, P.W.4 was working as Police Constable of Thipparthy police station and P.W.6 was working as Head Constable in Narayanpur police station. Therefore, these two witnesses were not attached to I Town police station, Nalgonda. Hence, there was no occasion for them to see the accused while they were in custody in I Town police station, Nalgonda. The learned senior counsel appearing for the appellants contended that there was scope or possibility for these witnesses also to see the appellants on two occasions viz. when the accused were produced in the concerned court for remand. But, there are no circumstances to indicate that at the time of producing the accused before the concerned Magistrate, P.Ws. 4 and 6 were present and that they had an occasion to see the accused. Therefore, the identification proceedings conducted by P.W.22 can be used to corroborate the evidence of P.Ws. 4 and 6. 22. No doubt, the accused contended before P.W.24- Magistrate as well as stated before the trial court that their photographs were shown to the witnesses and for that reason they identified the accused in the test identification parade. But, as seen from the evidence on record, no photographs of the accused were taken so as to show them to the prosecution witnesses. Test identification parade is conducted to test the memory of witnesses when the accused are not known to the witnesses earlier. Immediately after the arrest of the accused, P.W.22 held test identification proceedings on the requisition given by P.W.24, and in the test identification parade, P.Ws. 4 and 6 identified the accused as the assailants of the deceased. A ghastly incident took place in a broad day light and in the court premises, where several litigant public, advocates, officers, etc. would be present. Because of the incident, physical features of the accused must have been imprinted in the minds of these witnesses so that they could recollect the same and identify them at a later point of time. Therefore, in these circumstances, identification of the accused by P.Ws.4, and 6 cannot be said to be improbable or unbelievable. 23. The evidence of P.W.3 would go to show that A.1 and A.2 are the persons who attacked the deceased with axe and knife respectively, and thereafter when they were running away from the scene of occurrence, he chased them to some distance, but it was of no avail. Similarly, P.W.4 stated that when the commotion was going on in front of the Judicial Magistrate of First Class Court, Nalgonda, he saw a person falling down and A.1 and A.2 were running away from the scene of occurrence, and in the hands of A.1, there was an axe and in the hands of A.2, there was a knife; that, himself and P.W.3 chased them, but it was of no avail, and they ran away on the scooter which was outside the compound wall. If this witness wants to perjure himself, he would have stated that A.1 axed the deceased and A.2 stabbed the deceased. But, this witness has not stated with regard to the specific overt-acts of both the accused in causing the injuries to the deceased. Because he was sitting outside the court, he must have seen the incident after commotion. If really police wanted to show him as a witness, he would have stated about the actual incident also. Therefore, P.W.4, in our considered opinion, is a witness of truth and he deposed truth as to what had happened. Similarly, P.W.6 stated that while he was talking with witnesses in front of the Munsif Magistrate Court, Nalgonda, two persons were beating one person; that, he was under the impression that it was a fun, but, all of sudden, A.1 hacked the deceased with axe and A.2 stabbed him with knife, as a result, the deceased fell down