Dismissed

Godugu Bixapathi, Medak Dt. and 2 Othrs v. State of Telangana, Rep. by P.P., Hyd

Telangana HC14 Nov 2024CRLA/76/2015

Case brief

AI extract

What is this about?

Appeals by four men convicted of murdering three sugar-factory watchmen during a theft of red-gram bags. The High Court found the chain of circumstances complete, upheld the identifications and thumb-print evidence, and dismissed both appeals confirming life sentences.

What the court decided

AI extract

Godugu Bixapathi, Medak Dt. and 2 Othrs Vs… — Murder and Culpable Homicide | Telangana HC (2024)

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[^341e ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY, THE FOURTEENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER AND

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THE HONOURABLE SRI JUSTICE ANIL KUMAR JUKANTI

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CRIMINAL APPEAL NO: 76 AND 253 OF 2015

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CRIMINAL APPEAL No: 76 OF 2015 :-

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Criminal Appeal Under Section 374(2) of Cr.P,C against the Judgment made in S.C.No.136 of 20'1 1 dated 25.11.2014 on the file of the Court of the lV Additional District and Sessions^judge (Fast Track Court), Il4edak District, at Siddipet.

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Between :

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Godugu Bixapathi, S/o,Kistaiah, aged 45 yrs, Occ Agriculture, R/o. Kuknoorpally Village, Kondapak Mandal, Medak District.

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Bonagari Shekar @ Chandra Shekhar, S/0. Rajaiah, aged 24 yrs, Occ Painter, Rl/o. Kuknoorpally Village, Kondapak NIandal, Medak District.

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Bonagari Shivakumar @ Kumar, S/0. Rajaiah, aged 21 yrs, Sainagar Colony, Guddimalkapur, Mehidipatnam, Hyderabad.

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..Apellants/Accused (1,2 & 4)

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AND

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State Of Telangana, Rep. By P.P., Hyderabad, represented by its Public Prosecutor, High Court Hyderabad.

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... Res podenUC om pla ina nt

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lA NO: 1 OF 2024

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Petition under Section 389(1) of Cr.P.C^praying that in the-,,.tircumstances stated in the affidavit filed in support of the^petition, the High Court may be^pleased to suspend the execution of sentence^passed in SC No. 136 of 201'l,dated 1711212014 on the file of lV Addl District and Sessions Judge^(Fast Track Court), tvledak Oistrict at Siddipet and to release the^{petitioneri/A1,} A2 and 44 on bail pending Crl A No. 76 of 2015.

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Counsel for the Appellants : Sri P.Prabhakar Reddy

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Counsel for the Respondent : Assistant Public Prosecutor

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The Court made the following : COMMON JUDGMENT

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CRIMINAL APPEAL No: 253 OF 2015 :-

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Criminal Appeal Under Section 374(2) of Cr.P.C against the Judgment made in S.C,No.314 of 20.14(Split up from S.C.No.136 ot 201.1), dated 17.12.2014 on the file of the Court of the lV Additional District and Sessions^judge (Fast Track Court), Medak District, at Siddrpet.

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Between :

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Kothapalli Surender Kumar, S/o.lvlallesh, Occ:Painter, R/o.Pedda Pendyala Village, Station Ghanpur l/andal, Warangal District. Now Residing Near MnagSlhat P.S. Hyderabad

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...ApellanUAccused No.3

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AND

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State of Telangana, rep. by its Public Prosecutor, High Court at Hyderabad.

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... Respod e nUCo m pla ina nt

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Counsel for the Appellant : Mr.G.Neeraja Reddy

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Counsel for the Respondent : Assistant Public Prosecutor

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The Court made the following : COMMON JUDGMENT

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HON'BLE SRI JUSTICE K.SURENDER And HON'BLE SRI JUSTTCE ANIL KUMAR JUKANTI

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CRIMINAL APPEAL Nos.76 and 253 OF 2015

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COMMON JUDGMENT:

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Crimina-l Appeal No.76 of 2015 is filed by Al , A2 and A4 and Criminal Appeal No.253 of 2Ol5 is filed by A3. ,A.1 to A3 were convicted under Section 3O2 of IPC and ,{4 was convicted under Section 3O2 r/w 34 of IPC and they were sentenced to undergo imprisonment for life and to pay hne of Rs.1,000/-each. A1 to ,A'4 were also convicted under Sections^'457 and 380 of IPC and sentenced to rigorous imprisonment for 3 years and to pay fine of Rs.1,000/- each under Section 457 of IPC and also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- under Section 380 of IPC vide^judgment in S.C.No.136 of 2011 dated 25.11.2014 passed by the IV Additional District and Sessions Judge (Fast Track Court), Siddipet.

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The case was initially tried against Al, A2 and A'4 in SC AS No.136 of 2011. After being released on bail, A3 absconded, such, the case was split up and numbered as S.C.No.3l4 of 2014.

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The judgment in SC No. 136 of 2Ol1 was pronounced on 25.1 L.2O14 and the said split up case in S.C.No.314 of 2014,^judgment was pronounced on \7.12.2074. Since the evidence is the same in both the cases, both the appeals are taken up and disposed offby way of this Common Judgmenl..

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The case is of triple murder. A11 the three deceased are watchmen. The names of deceased are Arjun Ram (D1), Abdul Khadeer (D2) and Siyaram Swamy (D3).

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Briefl1', the case of the prosecution is that on 10.04.2010 at about 1O.50 hours, P.W. 1 gave report in the police station stating that on 10.04.20 10 at about 10.00 hours P.W.2, who was working as cook in the Mohan Kandasari sugar factory, went to the factory in usual time and the watchmen were not found. Then, she went to the office in search of them an<i D3watchman was founci ciead in the office and thereafter, she searched for other two watchmen but she did not hnd them. Immediately, P.w.2 went to the house of P.W. 1 and informed the incident. Then, P.Ws.1 and 2 went to the sugar factory and on search of other two watchmen, they found D1 & D2 near red-gram heap. P.W. 1 went to the police station and gave

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report with regard to the incident of deaths of watchmen in the sugar factory. Basing on the report, P.W. 15 head constable registered case in Cr.No.47O of 2Ol under Section 3O2 atd 379 of IPC.

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On 1O.04.201O, at about 12.00 noon, P.W. 19 who is DSP conducted scene of offence panchanama in the presence of P.W.3 and at that time, he examined P.W. 1 and other witnesses. At the time of scene of offence panchanama, P.W. 19 collected blood stains etc. P.W19 conducted inquest panchanama over the dead bodies of the deceased 1 to 3 in the presence of P.W.3 and another. On the same day at about 1.30 or 2.OO p.rn, P.W. 19 received information from Gouraram police station that during vehicle checking, the police found red-grambags in a DCM van in a suspicious manner. On inquiry with the person taking the red-gram in the van, he stated that the red-gr:am bags belong to the Prasad Seeds Private Limited and they wanted to bring the relevant papers from their owners and so saying, they left the place by keeping the DCM and its driver at the spot. Since nobody came subsequently, the redgram along with DCM van was seized. P.W. 11 is the driver of the

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DCM van and P.W. 16 is the Sub-Inspector of police who detained the DCM van along with r:ed-gram which was found in suspicious manner. P.W. l1 and P.W. 16were examined by P.W. 19.

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As per the evidence of P.W. 11, he is working as the driver of DCM Van. One Sathyanarayana was the owner of the DCM Van. P.W. 1 1 was contacted to transport the red-gram from 8 km away from Pragnyapur to Goshmahal, Hyderabad and after negotiation, he acceptecl to transport red-gram to Goshmahal for an amount of Rs.4,2OO/- and they paid Rs.2,000/- as advance. Later he was taken to KandasariSugar Factory, Kodakandla village by 44. When P.W. 1 went to sugar factory, he noticed 3 persons (A1 to A3) present there and later all of them loaded 30-35 red-gram bags in the DCM Van and also one oil tin and one corn-seed bag. After loading of the red-gram bags, all three sat in the cabin of the DCM van. When they reached GouraramP.S.Limits, the police were checking the vehicles ald the DCM van was also stopped. Police ofhcer enquired about red-gram bags and also asked them to produce the papers. Then, three persons (A2 to A,4) who loaded the red-gram teft the check-post point stating that they will bring the owner and the

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relevant papers but they did not turn up. The checkinghad taken place at about 2.30 a.m. P.W. 11 identified the said four persons as A'1 to A.4 in Test Identilication Parade conducted by P.W.22. Similarly, P.W.16 also identified A2 to ,A.4 in T.I parade as the persons traveling in the DCM Van.

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On 21.04.2010, the appellants were arrested and produced before P.W. 19. During the course of interrogation, the appellants said to have made confession in the presence of P.W. 14 and another. The appellants said to have confessed that they killed D1 to D3 and later brought the DCM Van and committed theft o[ redgram bags. While taking away red-gram, the police Gouraram has stopped the DCM van and checked and detained as there were no valid papers for transportation of goods, the appellants kept DCM Van and its driver at that place and appellants left the place on the premise that they will get the papers from their owners. They further confessed that the axe was concealed in front of the godown. Pursuant to the confession of A3, MO 39 knife was recovered at his instance. At the instance of A1, head of the axe at one place and wooden handle at another place, two broken locks, one lald phone

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were recovered. At the instance of 42, blood stained clothes of A1 to ,A'3 were recovered.

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P.W.22 is the Principal Junior Civil Judge, Siddipet, who conducted T.l parade in respect of A1 to ,{4 and in the said T.l parade. P.W. 11 identified the fourpersonsas accused 1 to 4, who loaded the red-gram bags in the DCM Van. P.W. 16 iclentihed ,A.2 to ,A.4 as the three persons in the DCM Van, when it was stopped.

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On beha,lf of the prosecution, P.Ws.1 to 23 rvere examined and Exs.P1 to P93 were marked. M.Os.l to 43 were also marked to substantiate the case of the prosecution. On behalf of the appellants, none were examined, but marked Exs.Dl to D3which are contradictions in the evidence of P.W. 1 1.

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'! n \ oqrnoA Qacc'i^n.v lrLr6u I' rrlaa HiauiriSJ nla^ina r r-li^nn- i iiuiiu\ nn tjr i .i iv rha a!,.idah^^ < v i-\icii-ua ur^f witnesses, which is circumstantial in nature, found firvour with the prosecution case ald convicted the appellants. Mainly, the evidence of witnesses, P.Ws.l, 2, 5,6, 10,11,74,76,18 and 19 was relied on by the learned Sessions Judge.

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1 1. Heard Sri P.Prabhakar Reddy, learned counsel for the appellants and Sri Arun Kumar Dodla, learned Additional Public Prosecutor appearing for the State.

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The contentions raised by the learned counsel appearing for the appellants are as follows:

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i) At best, the offence is one of theft and the appellants cannot be mulcted with liability of committing murder of the deceased 1 to .)

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ii) The only evidence of identit5r is that of P.W. 11, which is doubtful since the appeilants are strangers to P.W. 11.

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iii) The other evidence of identifring A2 to ,{4 is that of P.W. 16, the ofhcer, who allegedly detained the DCM vehicle driven by P.W. 1 1. The said detention was in the night and identification by both P.W. 1 1 and P.W. 16 in the test identification^parade raises any amount of doubt since the appellants had informed the Magistrate conducting test identification parade that they were shown to the witnesses prior to Test Identification Parade.

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iv) The granite stone which was found at the scene was not sent for FSL examination.

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v) The dog squad was taken to the scene of offence, however, the dogs did not find the clothes of the appellants which were hidden in the oven, but were found after arrest ol appellants, which is doubtful.

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vi) The alleged seizure. of clothes from oven raises doubt since P.W.14 stated that the clothes contained blood but the FSL report did not find any blood.

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vii) The thumb print of A3 a1legedly found at the scene was on a junction box of a land iine phone, however, the said box was not seized to substantiate that the thumb printing was picked up from the scene.

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viii) The dog squad further did not find the axe and the broken locks under Mos.30 to 32. which were seized at the instance of the appellants from the scene.

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ix) P.W.16, though stated that he made GD entry at the time when the vehicle in which P.W. 11 was driving and A2 to A4 were in the vehicle, was stopped however, the said GD entry is not placed on record.

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x) Neither P.W. 1 1 nor P.W. 16 gave any descriptive particulars of the appellants.

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xi) Though, P.W.l9/Investigating Officer stated that the recovery of goods was on account of identification by P.Ws.1 and 2 as on the same day i.e., lO.O4.2OlO. However, in their deposition, they stated that they identified oi1 tin and the 40 bags of red-gram which was also identified by P.W.6, was on the following day, which is contrary to the evidence of P.W. 1 9 / Investigating oflicer that the goods were indentified on 1O.04.2010 itself.

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xii) P.W. 1 1 did not speak about any indication or symbol 'PSPL' on red-gram bags, however P.W.6 stated that there was symbol of ?SPL' printed on the bags which is again contradictory

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xiii) The alleged seizure at the instance of police in respect of the axe, clothes of the appellants were ali planted at a later date.

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Learned counsel for the appellants relied on the^judgment of the Hon'ble Supreme Court in the case of Laxman Prasad alias Laxman v. State of Madhya Pradesh^I in which, the Hon'ble Supreme Court held as follows:

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1120231 6 Supreme Court cases 399

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*3. We do not Jind such conclusion of the High Court to be strictlA in accord.once u.tith lana. In a case of cira)m.stantial euidence, the chnin hos to be conry)lete in all respects so as to indicate the guilt of the accused and also exclude any other theory of the cime. The lau is utell settled on the aboue point. Reference mag be had to tlle following cases:

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(i) Sharad Birdhichand Sarda u. State of Mahnrashtra [Sharad BirdhicLnnd Sarda u. State of Maharashlra, (1984) 4 SCC 116 : 1984 SCC (cd a87l ;

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(ii) Stnilendra Rajdeu Pasuan u. State of Gujarot [Shailendra Rajdeu Pasuan u. State of Gujarat, (2020) 14 SCC 75O : (2020) a SCC (Crt) 856 : ArR 2O2O SC 18Ol ."

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In Madathil Narayanan and others v. State of Kerala and another² , the Hon'ble Supreme Courtdid not flnd favour with the prosecution CASE of finding the chance prints on the auto rickshaw. Further, the Hon'ble Supreme Court held that where two views are possibie, one favourableto the accused has to be considered. In Malaichamy and another v. State of Tamil Nadu³ , the Hon'ble Supreme Court while dealing with a case of circumstanti;rl evidence held that the recovery of knifes only would not be sufflcient to convict the accused therein for the offence under Section 302 IPC.

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In Musheer Khan alias Badshah Khan and another v. State of Madhya Pradesh⁺ , the Hon'ble Supreme Court held that delay tn conducting Test Identilication Parade would be fata1. The Hon'ble

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'120181^{14 Supreme CourtCases513} ' 120191^{17 supre-e court Cases568}

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o 120101^{2 Supreme CourtCases748}

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Supreme Court found that a gap of over a month from the date of arrest and three months from the date of incident and the Test Identification Parade cannot be relied when there was no explanation for the delayed Test Identification Parade.

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In Nagaraja v. State of Karnatakas, the Hon'ble Supreme Court while dealing with a case of circumstantial evidence held that though chance prints which were obtained from utensils recovered from open place, were not produced, in the said circumstances, the Hon'ble Supreme Court did not findfavour with the prosecution case.

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On the other hand, Sri Arun Kumar Dodla, learned Additional Public Prosecutor would submit that there is no reason why P.Ws.1 I and 16 would falsely implicate the appellants. In fact, the appellants/Al to A4 were in the company of P.W. 11at the time of loading the bags at the godown and A2 to A4 traveled along with him til1 P.W.16 and other police personnel stopped the vehicle and questioned them regarding the goods which are 40 red-gram bags in the vehicle. In the said circumstances, it cannot be said that the identification of the appellants has to be doubted. The minor discrepancies in the case of prosecution cannot be exaggerated when they do not have any impact on the actual case of the

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s 1202012^{supremecourtcases 257}

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prosecution. The circumstances that were relied on by the prosecution clearly make out a case of murder against A1 to A4.

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Learned Sessions Judge had considered the following circumstarces to hnd whether the prosecution had made out its case against the appellants since the case is circumstantial in nature.

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i) P.Ws.l and 2 noticed blood stains at premises of Mohan Kandasari Sugar Mill.

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ii) PW2 lodged a complaint before the police after they arrived at scene of offence.

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iii) The police conducted the scene of offence panchanama and inquest on the dead bodies of the deceased No.1 to 3.

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iv) PW 1 6 passed information about the detection of suspected vehicle in vehicle checking on Rajiv Rahadari at Gouraram Police Station on 1O.4.201O in between 2 and 3 A.M along with PWl1 contraband van, contraband property and A2 to A4.

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v) PW I 9 passeC informaticn abcut the offence anC call for^trhe information about the suspected vehicle was passed in vehicle checking.

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vi) On the information given by PWl6, PW19 conducted the seizure of MO40 and seized MO29 in the presence of PW12 and those were identified by PW2, PW6.

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vii) On the information by PW19 apprehended A1 to A.4 and recorded the confessional statement in the presence of PW14 and recovered MO3O to MO39.

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viii) The identity of A.1 to ,A.4 is established through the evidence of PW23 by conducting Test Identilication Parade with PW11 and PW16.

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In Sharad Birdhichand Sarda v. State of Maharashtra6, the

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Honble Supreme Court held as follows:

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"153. A close analgsis of this decision uould stLow that the following conditions must be fulfilled before a case against an accused can be soid to be fullg^established:

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(1) the circumstances from ulhich the conclusion of guilt is to be draun should be fully established. It mag be noted here that thi.s Court indicated that the ciralmstances concemed "must or should" arud not "mag be" established- TLrcre is not only a grammatical but a legal distinction betu-teen "mag be proued" and "must be or should be proued" as utas held bg this Court in Shiuaji Sahabrao Bobade u. State of Maharashtra ft1973) 2 SCC 793 : 1973 SCC Qd1O33 : 1973 Crl LJ 17831 uhere the obseraations u.tere made: ISCC para 19, p. 807: scc pfl p. 1oa7l

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"Certainlg, it is a pimary pinctple that the accused must be and not merelg mag be guilty before a court can conuict and the mental distance betlueen'mag be' and 'must be' is long and diuides uague conjectures from sure conclusions. "

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(2) the facts so established should be consistent onlg with the hgpothesis of the guilt of the accused, tlnt is to saA, theA should not be explainable on any otLrcr hypothesis except tlnt the ocdtsed is guiltg,

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(3) the circumstances sLauld be of a conclusiue nahffe and tendencg,

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(4) theg should exclude euery possible hgpothesis except the one to be proued, and

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(5) tlrcre must be a chain of evidence so complete as not to leaue any reasonable ground for the conclusion consistent uith the innocence of the accused and

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"(1984)^{4 scc116}

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must sholu thzt in all human probability tlrc act must haue been done by the accused."

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The incident where the murders have taken place is a godown. P.W.S was examined to state that the godown was given on lease to Prasad Seeds where D1 to D3 were employed as watchmen. P.W.6 is the Chief Executive of Prasad Seeds Limited which had taken the godown on lease from P.W.5. He stated that shed was taken on lease for storing red-gram etc. Further, 4O bags of red-gram were missing from the scene of offence on 10.04.2010. On the foliowing day, he was cailed by the police to identify 4O bags that were detained by P.W.16 loaded in the DCM van which was driven by P.W. 11. The dead bodies were first seen by P.W. 1 and P.W.2. When they went into the premises, they found the dead body of Siyaram (D3) on the first floor of the office room. The dead bodies of Khacieer(D2) and Arjun Ram (D1) were iounci on the heap oi corn waste near red-gram bags. Immediately, the said information was given to the police. The dead bodies being found in the premises is not disputed by the appellants. The police, then sent for clues team for the purpose of collecting clues from the premises.

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P.W. 17 is the finger print expert. He stated that he visited the scene when he was called by the police. He went to the scene of offence and according to him, he found chance prints on Champion Ghutka packet which was marked as A'. He also found chance prints on the lald line extension box which was developed and marked as 'B' and 'C'. According to P.W. 17, 'A'a,nd 'C'were unfit for comparison, however, 'B' chance print that was found on the landline extension box was fit for comparison. Having checked the finger print with the head office, no matches were found. On 05.05.2010, P.W. 17 received requisition from Judicial First Class Magistrate, Gajwel to visitSanga Reddy District and collect finger print and thumb print from the suspects who were Al to 44. Accordingly having collected finger prints of ..A'1 to A4 for comparison with chance print B', it was found that it was identica-l with the index finger print of A3. Ex.P89 is the comparison report.

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The argument of the iearned counsel that the box on which chance print was found was not seized cannot be accepted. The chance print was found on the landline extension box. It is not the case of A3 that he was taken to the location and forcibly made to

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put his thumb impression on the telephone box or that the extension box was taken to the jail or in the police station during his alleged illegal detention his thumb print was obtained. The thumb print marked 'C'was secured by the FSL team on the date of their visit to the scene on10.O4.2O|O.In the said circumstances, it cannot be said that the evidence of A3's presence in the premises as on the date of incident is doubtful. It is not the case that A3 usually visits godown for which reason, his thumb print must have been on the telephone box.

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The case relied on by the learned counsel in Nagaraja's case (supra), where the utensils on which the finger prints were found from a public placeand not seized have no application to the present case. On the basis of evidence therein, the trial Court had accr-ritted the accused. The fa-cts in the Dresent case differ. As ---1--_---* already discussed, it is not the case of A3 that his thumb print was taken forcibly by the police after his arrest. Even during the course of Section 313 Cr.P.C examination, no explanation is given except a baredenial. The evidence of P.W.17, who is the thumb print expert

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and his team collecting thumb prints at the scene cannot be doubted.

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The witnesses, P.Ws.l,2 and 6 during their evidence stated that they were called on the next day. The fact remains that they have identihed the property. The death had taken place on 09.O4.2OLO and complaint was lodged on10.04.2010. The witnesses did not specihcally say that the identification was done on LL.O4.2OIO. However, they informed that they were called on the next day morning. The fact remains that P.Ws.l and 6 have identified the seized propertynvhich is oii and also 40 bags of red gram. The contradiction between the evidence ol P.Ws.1 1 and 6 as argued by the counsel regarding symbol 'PSPL'on the bags when P.W.6 stated that symboi was present, however, P.W.l1 did not notice the symbol. Not noticing the s5,nnbol by P.W.11 will not amount to holding that the version of P.W.6 that there was symbol 'PSPL'on the bagshas to be doubted. The said non observation of P.W. 11 is of no consequence and it does not go to the root of the case.

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The other ground raised is that no motive was proved by the prosecution. Since the case is of circumstantial in nature, motive aspect gains importance. The case of the prosecution is that in order to steal the red-gram or while stealing the red-gram, since deceased had intervened, the appellants would have assaulted them. Counsel submitted that at best, the case is one of theft. However, there is no specific explanation by the appellants regarding theft by them during Section 313 Cr.P.C examination.The fact remains that according to P.W. 11 whose vehicle was hired by A1, the vehicle was taken to the godown. ,A.1 to A4 had loaded 40 bags of red-gram on to the DCM vehicle. A2 lo ,A.4 then went along with in the vehicle. When the police/P.W. 16 stopped the vehicle, according to P.Ws.11 and 16, A2 to A4 went away stating that they would get the documents. The appellants A,2 to A4 were sitting in the cabin of the vehicle when the police stopped the vehicle. When P.W.16 demanded papers from P.W.11, who was driving the vehicle, he informed that a,ll the three persons (A2 to ^A4) were the customers of the 40 bags of red-gram and they would produce the papers. Accordingly, A2 to A4 left the vehicle saying that they would get papers, but they did not turn up.

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1,9

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All through while loading 4O bags of red gram into the DCM van at the godown, the driver/P.W.11 was also present. Thereafter, after loading bags, A2 to A4 sat in the vehicle and went along with him till the police stopped. On account ofbeing with the appellants for considerable time, the identification by P.W. 11 cannot be doubted.

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Though, ground was raised that neither P.W. 11 nor P.W. 16 have given any identification details of the appellants, however, as discussed above, P.W. 11 was along with A.1 to ,A.4 for considerable time and the identilication cannot be disbelieved.

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P.W. 19 is the Investigating Officer who stated that the DCM vehicle which was driven by P.W. 11 was seized along with the goods. Thereafter, it was deposited before the JFCM Court, pursuant to which, the vehicle was released by the Magistrate.

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The appellants were arrested on 21.04.2010, nearly ten days after the incident. The Test Identilication parade was conducted on11.05.2010, 2O days after their arrest. The Test Identification

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parade was one month after the incident and 20 days after the arrest of the appellants. The appellants also informed that they were shown to P.Ws.ll and 16. According to ,{1, he stated to the learned Magistrate (P.W.22)' conducting Test Identification^parade, that there was function in his house and he went to Ongole. However, police brought him and conhned him in the police station, Kukunoor pally for a period of 14 days. They beat him with belts, sticks and he informed that he never committed any offence. However, the date on which the function was held is not stated. The detention of 14 days as alleged by him cannot be believed, since the incident happened on 10.04.201O and arrest is shown as 2l.O4.2OlO within ten days of the incident. The other appellants a-1so stated that they were forcibly taken to Kukunoorpally police station and confined for a period of 14 days.

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,A.1 and A3 stated that they were detained for 14 days and A,2 stated he was detained for 15 days. Since arrest was on the 11th day of the incident, the version of the appeliants that they were detained for 14/15 days cannot be believed. Further, the alleged detention was not questioned at the earliest point of time blz way of liling

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21,

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habeas colpus petition nor zrny complaint was lodged alleging illegal detention of A1 to 44.

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Learned Magistrate/P.W.22 has deposed that she has taken all necessary precautions during the Test Identification parade proceedings. Though the appellants have stated that they were shown in the police station prior to their identifrcation, such statements would normally be made by the acbused who had to undergo Test Identification parade. Merely stating that they were shown to the witnesses prior to Test Identihcation parade that in itself cannot form basis to deny the entire proceedings or accept that they were in fact shown by the police before Test Identifrcation parade in the police station.

¶137

P.W. 18 is the owner of hardware shop. The Police, pursuant to the confession of A1, was taken to the shop of PW18 where he had purchased MO3O axe that was seized during investigation. P.W.i8 stated that he is the owner of the hardware shop and identified A'1 who has purchased the axe. The sale was in the normal circumstances, it is not probable that shop owner identifies his customers who have purchased an axe, however, the shop was

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¶139

identified by the police when A1 to ,{4 have showu the shop of P.W.18 and out of A1 to A4, P.W.18 pointed out that it was A1 who had purchased the axe. The shop of P.W. 18 was discovered by the police at the instance of the appellants. P.W. 18 identrfied A1 as the person who had purchased axe. For the reason of there being no Test Identification parade for P.W. 18 to identi8r that in itself cannot form basis to reject the identification of Al by P.W. 18 in the present facts of the case.

¶140

Learned counsel for the appellants laid much emphasis on the dog squad not hnding the clothes at the scene and also the granite stones that were lound at the scene were not sent to FSL. Nowhere in the cross-examination it was elicited that the dogs were taken to the place where the clothes were found. However, the dog squad not finding the clothes will not have a bearing in the present case since no relevance is placed on the movement of the dogs or any evidence that was found by the dogs during investigation. The granite stones which were found near the scene though recovered and not being sent to FSL will not in any manner affect the case of the prosecution since no prejudice is caused to the appellants.

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¶142

The argument of the learned counsel for the appellant that at most, the appellants may be guilty of theft and not murder has to be dealt with. If the case of the appellants is that they have oniy committed theft of the 4O bags of red-gram, the said version is \ highly improbable and doubtful. Ali the three deceased were I^I working as watchmen in the godown from where the theft of 40 bags of red-gram has taken place. If the three deceased, who were watchmen had seen committing theft, invariably, they would have stopped the said theft. It is not the case that all the three watchmen were tied up or threatened with dire consequences while committing theft. Consequently, if at all theft was committed after the alleged murders have taken place, two of the dead bodies were lying in the godown near the red-gram bags and it cannot be said that the appellants did not even see the dead bodies which were lying in the godown from where they committed theft of 40 bags. Either way, the argument of the learned counsel that the appellants can be convicted only for theft, cannot be accepted ald highly improbable for the-reasons discussed.

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