The High Court dismissed a criminal appeal and revision filed against the acquittal of four accused persons convicted of murder. Finding that eyewitness testimonies were contradictory, the identification parade was flawed, and the FIR did not name all suspects initially, the Court upheld the trial court's judgment acquitting the accused.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD
CRIMINAL APPEAL No.1144 of 2008 and CRIMINAL REVISION CASE No. 559 of 2007
COMMON JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad)
Both the appeal and the revision case are filed against the acquittal of the accused in S.C.No.4 of 2004 by the I Additional Sessions Judge, Mahabubnagar on 21.12.2006.
The respondents 1 to 4 herein were prosecuted for the offences punishable under Sections 302 read with 34 of the Indian Penal Code, 1860 (for short “IPC”) against A1 to A3 and Section 302 read with Section 109 of IPC against A4.
According to the prosecution, the deceased Emmadi Narayana was Ex-Sarpanch of Yenugonda village of Mahabunagar Mandal and residing in Srinivasa Colony, Mahabubnagar. The grand father of the deceased by name Emmadi Narayana by name Kondanna after the death of his first wife, he had performed second marriage with a widow namely Smt.Yellamma, who was already having two male issues namely Mallaiah and Balaiah through her first husband. After second marriage, Yellamma gave birth to a male issue by name Pullanna. Pullanna was having five male issues i.e. the deceased Narayana and four others. A1 is the son of Balaiah, A4 is the son of Kondanna. At the time of division of their ancestral property about 12 years back, the deceased Narayana has given only 15 acres of land to his step brothers i.e. A1 and A4 keeping the remaining 57 acres of land with him and is being enjoyed by him and his four brothers. As such A1 and A4 step brothers of the deceased bore grudge against him for not giving them equal share in their ancestral property. A1 and A4 vexed with the attitude of the deceased Narayana
and warned him number of times with dire consequences and also gave him threatening calls on telephone and through the letters purported to have been written by the extremists. A1 and A4 hatched a plan to eliminate the deceased once for all. In pursuance of their plan, A1 and A4 approached A2, who is a close friend of A1 and requested him for his assistance explaining their grievance. A2 in turn consulted one of his friends A3 and took his assistance to kill the deceased Emmadi Narayana. A1 to A3 kept a watch over the daily movements of the deceased. On 31.08.2002 in the early hours, A1 to A3 as per their plan went near the Chikkudu Vaagu bridge situated at a little distance away from Maheshwari theatre within the limits of Yenugonda village and hidden themselves by the side of the road, waiting for the deceased, who daily used to come from morning walk in the said route. At about 6.20 a.m. when the deceased reached near Chikkudu Vaagu bridge, all the accused persons pounced upon the deceased and A1 dealt blows with a sword and A2 and A3 dealt blows with axes and caused seven bleeding injuries on the vital parts of the deceased, due to which he collapsed on the spot and became unconscious. The incident was witnessed by Sathani Venkat Narsimulu, PWs.3 to 6 and 9. Immediately, PW.9 rushed to the village and informed about the incident to the sons of the deceased i.e. PWs.1 and 2, who in turn along with PW.9 came to the spot and found the deceased with severe bleeding injuries and shifted him to S.V.S. Hospital, Yenugonda in a jeep, where the doctor advised them to shift him to Hyderabad for better treatment after giving first aid. While he is being shifted to Yashoda Hospital, Hyderabad, he died at about 10.10 hours. On the complaint given by PW.1, PW.14 has registered the case in Cr.No.175 of 2002 under Section 307 read with Section 34 of IPC and took up the investigation. He visited the scene of offence and conducted the scene of offence panchanama and drawn sketch of the scene of offence in the presence of PW.10 and another and seized blood stained earth, control earth and two broken hand stick and thereafter proceeded to the S.V.S. Hospital, Yenugonda and seized the blood stained T.Shirt, banion from the deceased. On 31.08.2002 at 10.30 a.m. PW.2 informed PW.14 about the
death of the deceased at 10.10 hours on reaching the Yashoda hospital, Hyderabad. Basing on the said intimation, PW.14 has altered the Section of law from 307 read with Section 34 of IPC to Section 302 read with Section 34 of IPC and thereafter the investigation was taken up by PW.16. The dead body was brought back to Mahabubnagar headquarters hospital, where PW.16 conducted inquest over the dead body of the deceased in the presence of PW.11 and another and recorded statement of the witnesses and the doctor PW.13, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to multiple injuries including injury to vital organs leading heamorrhage, shock and death. On 12.09.2002 at 11.00 a.m. PW.16 arrested A1 to A3 at New Bus stand, Mahabubnagar in the presence of PW.12 and another and recorded their confessional statements and in pursuance of their confessional statements, proceeded to the outskirts of Yenugonda village near the railway track and got recovered the sword at the instance of A1 and two axes each at the instance of A2 and A3. Thereafter A1 to A3 were remanded to judicial custody. On 17.10.2002, A4 was arrested and remanded to judicial custody. After completion of the investigation PW.16 filed the charge sheet.
The Sessions Judge has framed the charge under Section 302 read with Section 34 of IPC against A1, A2 and A4, as A3 was absconding and the case against him was split up, and they pleaded not guilty for the said charge.
The prosecution in order to establish the said charge examined P.Ws.1 to 16 and got marked Exs.P-1 to P-20 and MOs.1 to 10. No oral evidence was adduced on behalf of the accused but Exs.D-1 to D-4 were marked on their behalf.
Taking into consideration of said oral and documentary evidence, the Sessions Judge found A1, A2 and A4 not guilty for the charge framed against them and thereby acquitted.
Aggrieved by the said acquittal, the State has preferred the present Criminal Appeal and PW.1, the son of the deceased, has filed the Criminal Revision Case.
Now the point that arises for consideration is whether the prosecution could establish the charge under Section 302 read with Section 34 of IPC against A1, A2 and A4 beyond reasonable doubt?
POINT:
The Additional Public Prosecutor has pleaded that the eye witnesses PWs.3, 4, 5 and 9 have specifically stated about the accused attacking on the deceased and their evidence was supported by the circumstantial evidence of PWs.6 and 7 and the weapons used in the commission of the offence were seized at the instance of the accused in the presence of PW.12 by PW.16 and that PWs.2, 4 and 9 identified A2 and A3 in the test identification parade, as such the prosecution could establish the charge under Section 302 read with Section 34 of IPC against the accused and hence, the accused are liable to be convicted for the said charge.
The counsel appearing for the respondents, on the other hand, has pleaded that the evidence of PWs.3, 4, 5 and 9 is contradictory to each other with regard to the occurrence of the incident and their presence at the time of incident was also doubtful as PW.1 come to know about the incident through PW.9 and immediately proceeded to the spot and saw the presence of PWs.3, 4 and 5 but he did not mention the names of the culprits in the FIR. He further pleaded that PWs.3, 4 and 9 identified all the accused in the test identification parade after one month 25 days and prior to conducting of the test identification parade the said witnesses were shown the accused while they were attending the Court by the police, as such the identification of the accused in the test identification parade cannot be relied upon. He further pleaded that the trial Court has rightly come to the conclusion that the charge was not proved against the accused and rightly acquitted them.
According to the prosecution, the motive for the accused to commit the offence is property dispute between A1 and A4 and the accused; and A1 and A4 took the assistance of A2 and A3 in the commission of the offence and on 31.08.2002 they were hiding near Chikkuduvaagu bridge as the deceased would come for morning walk in that route and when he came to the spot at 6.20 a.m. A1 to A3 pounced upon the deceased and A1 dealt blows with a sword and A2 and A3 dealt blows with axes and caused severe bleeding injuries on the vital parts of the body of the deceased and the said incident was witnessed by PWs.3 to 6 and 9 and PW.9 rushed to the house of the deceased and informed PWs.1 and 2, who in turn came to the spot and shifted him to the SVS Hospital, Yenugonda, from there he was shifted to Yashoda Hospital, Hyderabad and there he was declared as dead.
In order to establish the motive for the commission of the offence, the prosecution has relied upon the evidence of PWs.1 and 2, who are the sons of the deceased. According to PW.1, A1 and A4 threatened his father several times that he should give share in the lands of his father, even though they are nothing to do with their property and in the crossexamination he admitted that A1, A4 and others filed suit O.S.No.71 of 1990 on the file of Senior Civil Judge, Mahabubnagar against his father for partition of the properties at Yenugonda. The suit is pending. He has no idea whether his father filed O.S.No.51 of 1996 on the file of Senior Civil Judge, Mahabubnagar against A1, A4 and others for partition. He denied the suggestion that keeping in view of the pendency of civil litigation, the accused were falsely implicated in this case.
PW.2 has also stated that prior to the incident they have civil disputes with A1 and his brothers and A4. In the year 1990, they filed a suit for partition and in the year 1996 they filed a suit for declaration of title and injunction and obtained temporary injunction against the defendants in the suit and both the suits are pending. He further stated that prior to the incident, his father received threatening calls and letters stating that he
would be killed if proper share was not given in the properties. Therefore, according to PWs.1 and 2, there are disputes between A1 and A4, and the deceased with regard to the partition of the properties and also civil suits are pending in between them. Therefore, there is apparent motive for the accused to cause the death of the deceased.
With regard to the occurrence of the incident, the prosecution has relied upon the evidence of PWs.3, 4, 5 and 9. According to PW.3, on 31.08.2002 at about 6.00 a.m. he was coming to B.C. colony, Mahabubnagar along with milk cans on his cycle. By the time he reached Chikkuduvaagu bridge, he noticed some galata. A1 and two other persons were found beating the deceased. A1 was armed with a talwar and two persons were armed with axes. The other two persons are A2 and A3. A3 was not present in the Court. After the attack, A1, A2 and another person went towards railway track of Yenugonda. Many people gathered there within a short time. PWs.1 and 2, who are the sons of the deceased, came to the spot in their jeep. PWs.4 and 5 were also present in the said gathering. Then they shifted the victim to SVS hospital in the jeep. The doctors in SVS hospital advised them to take to Hyderabad, then he along with PW.2 proceeded to Hyderabad in the ambulance of the hospital. Soon after reaching Yashoda hospital, the doctor examined the victim and declared him as dead and they reached Hyderabad at about 10.00 a.m. At about 3.00 p.m. they returned to Mahabubnagar along with the dead body and kept the dead body in the Government hospital, Mahabubnagar. In the cross-examination he has stated that on the date of incident in the evening hours, his statement was recorded by the police in the hospital. He simply stated before the police that he can identify the two culprits, who are present along with A1. He did not furnish the identification particulars of those persons and he further admitted that for the first time he narrated the incident only to the police. He denied that he has stated to the police as in Exs.D-1 and D-2 and he further stated that he saw the victim in the standing position when the attack was going on. He stated before the police that two culprits were attacking with axes with the deceased was
lying down and further admitted that he did not state before the police that the victim was attacked while he was in standing position. After four months of the incident, he was taken to Mahabubnagar Jail for identification of the culprits and he identified the three culprits i.e. A1 to A3. He denied the suggestion that A1 to A3 were shown to him at the police station prior to the test identification parade. He denied the further suggestion that he has only identified two culprits in the test identification parade.
PW.4 said to be the other eye witness to the incident and according to him, on 31.08.2002 at about 5.30 a.m. he started from Yenugonda to Mahabubnagar to secure a mechanic for digging a borewell in his field and when he was at a distance of about 25 metres from Chikkuduvaagu, PW.9 was coming towards him raising hue and cry that their Sarpanch was killed. Immediately he rushed to the scene of offence and found him being attacked. A2 and another person were hacking the deceased with axes. A1 was beating the deceased with a talwar. After the attack, A1, A2 and another ran towards Yenugonda railway track. They observed the injuries on the left side of the neck, right side of the forehead, left leg of the deceased. PWs.4, 5 and 9 were present at the time of incident and in the cross-examination he has stated that PWs.1 and 2 came to the scene of offence by running from the village side and they shifted him to the SVS hospital, Mahabubnagar and later he came to know that the deceased was taken to Yashoda hospital, Hyderabad and he further stated that he has taken to jail and he identified A2 and A3. A1 was not shown to him in the jail for identification. In the cross-examination he admitted that two or three days after the incident, his statement was recorded by the police. He further stated that PW.3 poured milk in the mouth of the deceased. He admitted that police came to his house along with photos of the culprits and shown to them. The photos of all the culprits were shown to them. He further admitted that he narrated the incident to PWs.1 and 2 soon after their arrival to the scene of offence. He stated the name of A1 as one of the culprits at the scene of offence itself to PWs.1 and 2.
PW.5, another eye witness and according to him on 31.08.2002 at about 6.00 or 6.20 a.m. while he was coming to Mahabubnagar from Yenugonda in his auto, when he came near Yenugonda bridge, he saw the incident from a distance of 15 feet and he saw A1 hacking the deceased with a talwar and the deceased averted the blow by keeping a stick and it was broken and the deceased received injury on the left side of the neck. A2 and A4 were present at the scene of offence. They were armed with axes. Due to their attack, the deceased fell down. PWs.3, 4 and 9 witnessed the incident and PW.9 poured milk in the mouth of the deceased. After the attack A1 to A4 fled away towards railway track. Later PWs.1 and 2 came to the spot and shifted the deceased to the SVS hospital, Mahabubnagar. In the cross-examination, he has stated that within two hours of the incident, his statement was recorded by the police. He further admitted that he did not narrate the incident before PWs.1 and 2 at the scene of offence. He further admitted that he did not state before the police that A4 threatened him with dire consequences and for the first time he is revealing the name of A4. He further admitted that police enquired him about the incident at SVS hospital but he did not disclose about the offence. He went to the police station voluntarily and gave the information.
The other eye witness is PW.9 and according to him, on the date of incident at about 6.00 a.m. he was coming to Mahabubnagar along with milk cans to distribute milk at Venkateshwara colony and Srinivas colony at Mahabubnagar and when he reached near Chikkuduvaagu bridge, he noticed the incident. Three culprits were attacking the deceased. One culprit has knife and other two culprits were having axes. PWs.3, 4 and 5 were also present there. After witnessing the occurrence, he proceeded towards Venkateshwara Colony and after crossing Venkateshwara Colony, he saw the sons of the deceased PWs.1 and 2 on the road and informed them aboiut the incident and proceeded on his work. On the next day police examined him at his house. He identified A1 and A2 as the
culprits, who are present in the Court, have committed the offence. After two months, he was summoned to the District Jail, Mahabubnagar for test identification parade. He identified A2 and other culprits in the said parade. In the cross-examination, he has stated that he revealed the name of A1 along with other culprits to PWs.1 and 2. He gave the descriptive particulars of the culprits in the statement before the police. He did not give any complaint to the police and he admitted that the house of the deceased is adjacent to the police station.
According to PWs.1 and 2, on the date of incident while they were in the house at 6.15 a.m. PW.9 came and informed that their father is beaten near Chikkuduvaagu bridge by a group of persons, immediately they rushed to the scene of offence in their jeep and found their father lying down near the bridge with bleeding injuries and shifted him to SVS hospital, Yenugonda and thereafter PW.2 and others shifted the deceased to Yashoda hospital and PW.1 went to the police station, Mahabubnagar and gave complaint at about 7.20 a.m., which is marked as Ex.P-1. In Ex.P-1 he has mentioned about PW.9 informing about the incident that three persons stabbed with knives on the head and neck of his father at Chikkuduvaagu bridge and about their presence at the spot and taking their father to SVS hospital for treatment and he has further mentioned that there are land disputes since ten years between his father Thirumalaiah, A1, Venkataiah, Anjaneyulu S/o Balaiah and A4 and they suspected that those persons might have attacked his father. But whereas, PW.9 has specifically admitted in the cross-examination that he revealed the name of A1 along with other two culprits to PWs.1 and 2. According to the prosecution PWs.3, 4 and 5 were present at the time of incident and they have identified A1 as one of the culprits and they also stated about PW.1 coming to the spot and after enquiring about the incident they shifted him to the hospital. Therefore, PWs.3, 4 and 5 would have informed the name of A1, but the names of A1 and A4 were not referred as culprits but they were only shown as suspects since they are having disputes with his father since ten years prior to the incident. The non-mentioning the name
of A1 in Ex.P-1 creates a doubt with regard to the presence of PWs.3, 4 and 9 at the scene of offence at the time of incident. Moreover, PW.9 left the scene after informing the incident to PWs.1 and 2 and according to PW.3 he saw A1 to A3 beating the deceased Narayana and A1 was armed with talwar and two other persons were armed with axes and according to him many people gathered there and among the gathering PWs.4 and 5 were also present. PW.4 has stated that when he was at a distance of 25 metres from Chikkuduvaagu, one Sathani Venkat Narsimulu came towards him running by raising hue and cry that their Sarpanch was killed. Therefore, from the above, it is evident that by the time he reached the spot, the deceased was already killed as informed by Venkat Narsimulu but he has stated that immediately he rushed to the scene of offence and found the deceased being attacked and according to him A1 beat the deceased with a talwar and A2 and others hacking the deceased with axes. Therefore, his evidence with regard to the witnessing the incident is doubtful as he was informed by Sathani Venkat Narsimulu about their Sarpanch was killing when he was at a distance of 25 metres at Chikkuduvaagu.
PW.5, who is said to be the other eye witness, has stated that A1 attacked the deceased with a talwar when he was at a distance of 15 feet from the scene of offence and the deceased averted the blow by keeping a stick and it was broken and he sustained injury on the left side of the neck but none of the other witnesses, who were said to be present along with him, did not speak about the deceased resisting the blow of A1 with a stick and about the breaking of the stick. PW.5 did not speak anything about the specific overt acts of A2 to A4 but he simply stated that A2 to A4 were present at the scene of offence armed with axes. Therefore, in view of the above contradictions between the evidence of PWs.3, 4, 5 and 9 and nonmentioning the name of A1 as a culprit in Ex.P-1, creates a doubt with regard to their presence at the time of incident.
With regard to the identification of the accused by PWs.3, 4, 5 and 9, PW.13, the Judicial First Class Magistrate, has conducted the test
identification parade and according to him, PW.3 identified A2 and A3, PW.4 identified A3 and PW.9 identified A2 and A3. But PW.3 has stated in his evidence that he has identified A1 to A3 in the test identification parade even though A1 was not put as suspect in the test identification parade and PW.3 admitted in the cross-examination that he did not furnished the identification particulars of the two culprits to the police in his statement under Section 161 of Cr.P.C. PW.4 has admitted in the cross-examination that police came to his house along with the photographs of the culprits and shown to them. Photos of all the culprits were shown to them and again stated that photos of two persons are shown to them. Therefore, the above admission made by PW.4 that the photos of all the suspects are shown to the witnesses. Moreover, they have not given the descriptive particulars of the accused in their statements under Section 161 of Cr.P.C. given to police. Moreover, the test identification parade was conducted one month 25 days after arrest of the accused. In the meantime, the accused might have been produced before the Court or attending the Court on every date of hearing. Therefore, there is every possibility of the witnesses seeing the accused in the Court before conducting the test identification parade. Therefore, in view of the delay in conducting test identification parade and in view of the admissions made by PW.4, it is not safe to rely upon the test identification parade for identifying A2 and A3 as the culprits of the offence. Moreover, as already observed above, none of the witnesses except PW.5 have spoken about the presence of A4 at the time of commission of the offence. Therefore, the prosecution could not establish the involvement of A4 in the commission of the offence.
With regard to the identity of A2 and A3, as the test identification parade conducted by PW.15 cannot be relied upon, there is no other evidence to connect A2 and A3 with the commission of the offence. With regard to A1, even though PWs.1 and 2 came to the spot and PW.9 has informed them about the involvement of A1 in the commission of offence, PW.1 did not disclose the name of A1 as one of the culprits in the complaint given by him at the first instance. Therefore, it is doubtful
whether A1, A2 and A4 have involved in the commission of the offence.
Therefore, in view of the above circumstances, the trial Court has rightly found the accused not guilty. There is no other material on record to come to a different conclusion by this Court than that of the findings recorded by the trial Court. Hence, the findings recorded by the trial Court do not warrant any interference in this appeal by this Court.
In the result, the Criminal Appeal and the Criminal Revision Case are dismissed.
__________________ JUSTICE N.V.RAMANA
______________________ JUSTICE P. DURGA PRASAD Date: 30-10-2012 MR
THE HON’BLE SRI JUSTICE N.V.RAMANA
AND
THE HON’BLE SRI JUSTICE P. DURGA PRASAD
CRIMINAL APPEAL No.1144 of 2008 and CRIMINAL REVISION CASE No. 559 of 2007
Date: 30-10-2012
MR
2 issues framed by the court
Whether the prosecution could establish the charge of murder under Section 302 IPC against the accused beyond reasonable doubt?
Whether the contradictions in eyewitness testimony and delays invalidated the identification parade?
1 provisions across 1 enactments
State
PW.1
Respondents 1 to 4
N.V. Ramana
P. Durga Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
