THE HON'BLE SRI JUSTICE A. GOPAL REDDY & THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.611 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) State preferred the present appeal challenging the judgment passed by the learned III Additional Sessions Judge (FTC), Asifabad, dated 26.10.2005 acquitting the accused for the charges under Sections 147, 148, 302 r/w 149 IPC and Section 25(i)(a) and 27 of the Indian Arms Act. The case of the prosecution reads as follows: Manepally Mallesh (hereinafter called as ‘the deceased’) was a resident of Karji and he was the brother of Manepally Posham (P.W.1), Manepally Venkati (P.W.2), Manepalli Durgaiah (P.W.3) and Manepally Chinnaiah (P.W.4). The deceased joined in the naxalites and went underground for about five years and came back and surrendered before the police and was living with his brothers in his village. On the date of incident during night, the deceased after taking food went outside. At that time, four naxalites came, took him and shot him dead. On hearing the galata, P.Ws. 1 to 4 came out of their house and saw the presence of four naxalites. They identified two of them and they are the accused and one Madhanaiah. On the next day, P.W.1 went to Nannel Police station and lodged Ex.P1 complaint. K. Krishna (P.W.14) the then Sub-Inspector of Police, Bellampally took up investigation. Since the Karji village wherein the dead body was lying was naxalites affected area he got the dead body brought to Nannel Police Station. From the police Station, it was taken to Government Hospital, Belluampally, P.W.15 examined P.Ws.1 to 4, Tekam Venkati (P.W.5), P.W.12 and recorded their statements. He held inquest over the dead body of the deceased in the presence of V. Manoher (PW7) and Ippa Rajam (P.W.6) and seized M.O.2 bloodstained colour lungi. M.O.3: Bloodstained blue colour underwear under cover of Ex.P2 inquest panchanama. P.W.9 conducted post mortem examination over the dead body of the deceased on 12.2.2003 and found four fire arm injuries and gave Ex.P4 post mortem examination report opining that the cause of death is due to hemorrhagic shock. P.W.15 conducted panchanama of the scene in the presence of P.W.11 and P.W.8 under the cover of Ex.P3 and drew rough sketch of the scene under Ex.P10 and seized M.O.4 bloodstained earth and M.O.5 control earth under the cover of panchanama. He sent the material objects to Regional Forensic Science Laboratory, Warangal. On 12.4.2004 at 4 a.m., P.W.17 along with twenty special party constables went to Karji village of Tiryani Mandal and apprehended the accused-Kamera Chandraiah (A1) while he was taking shelter in the house of one Pendrum Bheem Rao and searched his person and found in his possession 10 rounds of slive 8 m.m. rifles and 2 rounds of 7.62 m.m. rounds of ammunition and took him to Nannel Police Station and handed over his custody to the Sub Inspector. Before going to proceed with the case, it is to be noted that according to the charge sheet, some of the accused persons viz., Durgam Madhnaiah, Bollam Rajanarsu and Radapaka Shekar were died in the police encounter and the remaining accused Mailarapu Adellu, Chippakurthi Ravi, Sathpathi Thirupathi and Korthe Madhnaiah were absconding. Therefore, now the present case was proceeded against one Kamera Chandraiah (A1) alone by the Court below. The learned III Additional Sessions Judge (FTC), Asifabad, framed charges under Sections 147, 148, 302 r/w 149 IPC and Section 25(1)(a) and 27 of the Indian Arms Act against the accused, read over and explained to him, for which the accused pleaded not guilty and claimed to be tried. In order to substantiate its case, the prosecution in all examined P.Ws 1 to 17 and got marked Exs.P-1 to P-10 besides M.Os.1 to 5. On behalf of the accused, no oral or documentary evidence was adduced. P.W.1, who set the criminal law into motion by giving Ex.P1 report, stated that on 11.10.2003 himself, his brother Manepalli Mallesh and his family members took meals at about 9.30 p.m. and while his brother Mallesh was standing in front of the house after completing the meals, the extremists of people war came and took his brother Mallesh to the backyard of the house and on hearing the cries, they went there and by that time, the extremists Madanaiah of Kushnapalli and Kamerla Chandraiah of Manneguda and other extremists and militants killed Mallesh by firing with gun and he identified Durgam Madanaiah and Kamerla Chandraiah and on seeing dead body, they found a bullet injury below the left arm and his brother Mallesh worked with naxalites five years earlier. Heard the learned Public Prosecutor and in spite of service of notice, none appeared for the respondent. We have gone through the evidence on record. P.Ws. 1 to 4, who are the brothers of the deceased, deposed that the deceased joined in the naxalites and he continued there for about 5 years and then, he came back and surrendered before police station one year eight months prior to the date of incident. P.W.1 deposed that on the date of incident while they were taking meals, the deceased completed his meals and went outside the house and on hearing the cries of the deceased, he went and saw him lying dead and when he went to the place of the dead body, the accused armed with a gun and he was present there and along with him one Madhanaiah was also present and altogether four persons were present there. P.W.2 deposed that while they were taking meals, the deceased went outside after completing his meals and he heard galata outside and two of the four naxalites were present near the dead body of the deceased and he saw two naxalites viz., Madhanaiah and Chandraiah. P.W.3 deposed that while his brothers and himself were taking meals inside their house, they heard galata and came out and saw four naxalites and they shot the deceased dead and two of them left and two of them were at the deceased. P.W.4 stated that while he was taking food, he heard the cries and immediately came out and saw the deceased lying dead and there were four naxalites that killed the deceased and he can identify two of them viz., Madhanaiah and the accused. P.W.3 in his cross-examination deposed that he and his brothers are living separately with one another and on the date of incident, they were taking food in their respective houses. The evidence of P.W.3 in his cross-examination creates a doubt as to the veracity of testimony of other witnesses. P.Ws.1 to 4 in one breath stated that at the time of incident, it was totally dark. If that being the case, the identity of the accused and others and the weapons in darkness can be doubted. P.W.1 deposed in his evidence that by the time he reached the place of incident, all the four naxalites were present. But P.Ws 2 and 3 deposed that two naxalites were present by the time they reached the place of incident. If all of them together are taking meals in one house by the time of the incident, after hearing the cries, they might have come together to the place of incident. P.W.3 deposed that the incident took place in the backyard of their house and P.Ws.1 and 2 deposed that they saw the dead body lying at a distance of two furlongs from their house. There is no corroboration as to the place of occurrence also. Therefore, it can be said that the evidence of P.Ws.1 to 4 is not consistent and it does not support the case of the prosecution. Apart from that, their evidence is also ambiguous and it is not their evidence that they have seen the overt acts of the accused. But, the fact remains that by the time, they reached the dead body, they found some persons arming with guns. In addition to that, the evidence is also not consistent as to the number of the persons/naxalites present near the dead body of the deceased at the time of incident. It is the case of the prosecution that the accused made a confession and the same was recorded by P.W.16. P.W.16 deposed that he took the custody of the accused and interrogated him in the presence of P.W.10 and P.W.13 and on such interrogation the accused made a confession and he recorded his confessional statement. But, coming to the evidence of P.W.10, he deposed in his evidence that no person had made a confession and no material objects were seized in his presence. P.W.17 deposed that he apprehended the accused and found in his possession 10 rounds of slive 8 mm. Rifles and 2 rounds of 7.62 mm. Rounds of ammunition. The evidence of P.W.10 falsifies his version. Even if it is assumed that the accused made a confession before the police, in the absence of any recovery as to the material object pursuant to such an alleged confession, any portion of such confession cannot be relied upon as per the provisions of section 27 of the Indian Evidence Act. In view of the inconsistent evidence of the prosecution witnesses and the facts and circumstances of the case, we have no hesitation to hold that the learned Sessions Judge after considering the entire evidence, is justified in acquitting the accused by recording the finding that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, the calendar and judgment impugned in this appeal, do not warrant any interference by this Court. Accordingly, the Criminal Appeal is dismissed. _________________________ Justice A. Gopal Reddy ____________________ Justice Raja Elango Date: 25th October, 2010 Nn THE HON'BLE SRI JUSTICE A. GOPAL REDDY & THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.611 OF 2007 (Judgment delivered by the Hon’ble Sri Justice A. Gopal Reddy) 25.10.2010