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Andhra High Court · body

2000 DIGILAW 875 (AP)

Bulla Srinivasa Rao v. State Of A. P.

2000-11-24

D.S.R.VERMA, R.M.BAPAT

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RAMESH MADHAV BAPAT, J. ( 1 ) ACCUSED No. 1, who was tried along with accused No. 2, is the appellant herein. A-1 was tried by the learned II Additional sessions Judge, Rajahmundry, in Sessions case No. 109/1997 for the offences punishable under Section 302 of the Indian penal Code and under Section 27 of the indian Arms Act whereas A-2 was tried for the offences punishable under Sections 201 and 218 of the Indian Penal Code. On evidence, learned Judge convicted A-1 of the offences punishable under Section 302 i. P. C. , and sentenced him to suffer rigorous imprisonment for life and to pay a fine of rs. 2,000/-, in default to suffer simple imprisonment for six months and acquitted a-2 of all the charges. ( 2 ) THE prosecution story can be briefly narrated as follows. The deceased Ch. Kameswara Rao was working as a Sentry in y. Ramavaram police station and he was on duty in the night of 12-7-1994 guarding the backside of the police station. P. Ws. 1 to 5 were Police Constables who were also on duty on the date of incident. ( 3 ) P. W. 1 was posted as a Sentry from 12 midnight to 2 a. m. , on the roof top of the police station. P. W. 2 was doing duty in front of the police station. A-1 was posted for sentry duty and A-2 was posted for Guard duty on the backside of the police station. In all there were 7 A. P. S. P. men, 5 Constables and 2 Head Constables as the said police station was prone to naxalite attack. ( 4 ) IT is the further case of the prosecution that D. S. P.- P. W. 12 informed them that devanna Dalam had warned about the attack on the police station. It is the further case of the prosecution that there was no electricity power on the date of incident. For every two hours, police used to exchange their duties. On the date of incident, at about 12 in the night, it started raining. As there was no top shelter on the top of the police station, P. W. 3 came and informed P. W. 1 to do sentry duty in front of the police station along with other Sentries already posted there. At about 12. On the date of incident, at about 12 in the night, it started raining. As there was no top shelter on the top of the police station, P. W. 3 came and informed P. W. 1 to do sentry duty in front of the police station along with other Sentries already posted there. At about 12. 15 a. m. , P. W. 3 heard the sounds of barking of dogs. He sent P. W. 2, another Sentry, to find out what was happening at the backside of the police station. P. W. 2 went to the backside of the police station and the deceased told him that he had frightened the dogs and, therefore, they were barking. At about 12. 15 a. m. P. Ws. 1 and 2 heard the sounds of calling. P. W. 2 sent P. W. 1 to find out who was calling. When enquired, the deceased asked him to stay as a Guard for some time so that he would call his reliever from the tent. The deceased went and returned immediately and sent back P. W. 1. At about 1. 05 a. m. , again they heard the sounds of calling and also the sounds of "nene", P. W. 2 replied "don tworry". At about 1. 15 a. m. , P. Ws. 1 to 4 heard the sounds of rifle firing from the backside of the police station. According to p. W. 2 he heard the firing from the rifle of a-1. P. W. 2 again shouted "don t worry. Again A-1 fired. P. W. 2 alerted the police. P. W. 5 came out of the police station with a torch and focused on the backside of the police station. He found a person lying on the ground near the trench. P. Ws. 1, 2 and 4 also came there. At that time A-l was posted at the sentry post. P. Ws. 1 to 5 identified the body as that of the Police Constable P. C. 377 a. P. S. P. A-1 was brought along with his rifle. On the intervening night of 12/13-7-1994 one K. Suryanarayana, in-charge of Y. Ramavaram Police Station and A-2 presented a report to A. S. I. , which was registered as Crime No. 8/1994 under section 174 Cr. P. C The F. I. R. was sent to p. W. 11, C. I. of Police, who took up further investigation. On the intervening night of 12/13-7-1994 one K. Suryanarayana, in-charge of Y. Ramavaram Police Station and A-2 presented a report to A. S. I. , which was registered as Crime No. 8/1994 under section 174 Cr. P. C The F. I. R. was sent to p. W. 11, C. I. of Police, who took up further investigation. ( 5 ) P. W. 11, C. I. of Police, proceeded to the scene of offence and got it photographed with the help of P. W. 8. He also prepared a sketch of the scene of offence and also prepared observation report of the scene of offence in the presence of P. W. 7. Ex. P-14 is the observation report. P. W. 11 seized SLR weapon from A-1 and also 10 empty rounds. P. W. 11 then conducted inquest over the dead body of the deceased in the presence of p. W. 7, which is now marked as Ex. P-5. Subsequently the dead body was sent to post-mortem examination. However, the doctor who conducted the post-mortem examination was not examined at the time of trial. ( 6 ) P. W. 12, D. S. P. , took up further investigation. He proceeded to the scene of offence and examined the witnesses. On his instructions, P. W. 11 altered the section of law to 3041. P. C. , Ex. P-36 is the altered F. I. R. ( 7 ) ON 10-8-1994 P. W. 12 sent the material objects to Forensic Science Laboratory including M. 0. 1, which was given to A-1. M. 0. 2 belongs to the deceased. He also sent five live cartridges and 10 empty cartridges to Forensic Science Laboratory. On receipt of f. S. L. report on 31-1-1995, which is marked as Ex. P-35, P. W. 12 arrested A-l on 23-2-1995, A-2 was also arrested on 25-2-1995 on the ground that A-2 suppressed the information and reported the incident at y. Ramavaram police station at 3. 00 a. m. , instead of at 1. 05 a,m. Thus, on completion of investigation, P. W. 15 filed charge-sheet. ( 8 ) IN order to bring home the guilt of the accused, prosecution led the evidence of p. Ws. 1 to 12 and produced certain documents, which were marked as Exs. P-1 to P-36. The defence of the accused was of total denial. 05 a,m. Thus, on completion of investigation, P. W. 15 filed charge-sheet. ( 8 ) IN order to bring home the guilt of the accused, prosecution led the evidence of p. Ws. 1 to 12 and produced certain documents, which were marked as Exs. P-1 to P-36. The defence of the accused was of total denial. ( 9 ) IN order to prove that the deceased died homicidal death, prosecution wants to rely upon the evidence of P. W. 11 who had conducted inquest over the dead body of the deceased in the presence of P. W. 7 who had acted as a panch. Ex. P-5 is the inquest report. ( 10 ) AFTER the inquest, the dead body was sent to the Doctor. Unfortuntely, the Doctor was not examined. Therefore, we are unable to come to conclusion without the evidence as why and how the deceased died and whether the death was suicidal or homicidal. ( 11 ) AS stated earlier, prosecution led the evidence of P. Ws. 1 to 12. Out of them p. Ws. 1 to 3 are the main witnesses in this case. P. W. 1 happened to be the Constable attached to Y. Ramavaram Police Station on the date of the incident. He was posted as sentry on the top of the Police Station. Then he came down at the direction of P. W. 3 as it was raining and he was doing sentry duty in front of the police station. The evidence of p. W. 1 further discloses that at about 12. 15 a. m. , he heard the barking of dogs from the backside of the police station. Then, P. W. 2 asked him to go to the backside of the police station and find out as to why the dogs were barking. Then the deceased alleged to have told him that he had threatened the dogs and, therefore, they were barking. ( 12 ) AFTER making queries regarding the barking of the dogs, P. W. 1 came in front of the police station and started his duty. At about 12. 45 p. m. , he heard the sounds of "emandi, Emandi", Then he was sent back again to find out who was calling. Then he went and asked the deceased Kameswara rao why he was calling. At about 12. 45 p. m. , he heard the sounds of "emandi, Emandi", Then he was sent back again to find out who was calling. Then he went and asked the deceased Kameswara rao why he was calling. Then the deceased kameswara Rao told him to stay at the backside for some time as he would go and wake up his reliever who was resting adjacent to the police station. P. W. 1 continued to be at the backside of the police station. On the arrival of the deceased, p. W. 1 went back. ( 13 ) THE evidence of P. W. 1 further discloses that at about 1 a. m. , he heard the sounds of "evaradi" (who is it? ). Then he also alleged to have heard the reply "nene, nene". After some time he heard the sound of a rifle being shot. P. W. 2 informed P. W. 1 and others not to get afraid of. Then all of them went to the backside of the police station and with the help of a torch, they saw the deceased Kameswara Rao lying dead near the trench. A-l was also present. ( 14 ) THE evidence of P. W. 1 definitely goes to show that A-l had fired the rifle. He also asked "evaradi, Evaradi" which means that he tried to identify the person who was entering the police station from behind, but there was no positive reply nor was there proper identification given by the person entering the police station. He then fired bullets and thus the deceased was killed at the hands of A-1. ( 15 ) P. W. 2 happened to be working as police Constable at the same police station. On the date of incident, he was on duty in front of the police station. He also heard the dogs barking backside of the police station. Then he sent P. W. 1 to find out as to why the dogs were barking. The evidence of P. W. 2 also discloses that A-1 was shouting "evaradi, Evaradi". He also heard the reply as "nene, Nene" (Myself, Myself ). Thereafter he had heard the sounds of A-1 firing the rifle. In fact the evidence of P. Ws. 1 and 2 support the defence version. ( 16 ) P. W. 3 was also on guard duty. He also heard the reply as "nene, Nene" (Myself, Myself ). Thereafter he had heard the sounds of A-1 firing the rifle. In fact the evidence of P. Ws. 1 and 2 support the defence version. ( 16 ) P. W. 3 was also on guard duty. He specifically stated that A-1 was doing his duty at the backside of the police station and one Srinu-another Police Constable, was also on guard duty at the backside of the police station. Unfortunately, the prosecution for the reasons best known to it did not lead the evidence of Srinu. Srinu was doing duty along with A-1 and, therefore, his evidence would have thrown better light to show in what circumstances A-1 was made to fire the rifle. Suppression of the evidence of Srinu is adverse to the prosecution. ( 17 ) REST of the evidence is of not much use in establishing any charge against the accused. The evidence of P. W. 12, who happened to the S. D. P. O. , would go to show that he was not able to give exact time when the deceased was relieved from his duty. Prosecution was not able to bring cogent evidence by producing duty register as to when the deceased was relieved and when a-1 came on duty. This is a great lacuna in the prosecution case. ( 18 ) THE evidence of P. W. 12 discloses that the deceased had brought a woman for having sexual intercourse with her and after he was relieved from duty, he went along with the weapon to a resting place and after having sexual intercourse with her, he was entering the police station with a blanket and rifle. ( 19 ) IT is surprising to note that when the deceased was relieved from the duty why the person-in-charge of the police station at the relevant time did not insist upon the deceased to deposit the weapon at the police station. No positive answer is coming from the prosecution in this respect. ( 20 ) THE defence of the accused was that he bona fide thought that the deceased was a naxalite who had covered himself with a blanket and was approaching towards the police station in a haste and was holding something which appeared to him like a weapon in his hand. The accused had no torch with him. ( 20 ) THE defence of the accused was that he bona fide thought that the deceased was a naxalite who had covered himself with a blanket and was approaching towards the police station in a haste and was holding something which appeared to him like a weapon in his hand. The accused had no torch with him. Therefore, he asked twice and asked the person to stop. He did not receive any reply and the stranger did not stop. Then he became suspicious and panic and apprehended that the stranger was a naxalite coming to attack the police station. Then he shouted "camp Hushar, Camp hushar" thinking that the naxalites were attacking the camp. He acted as per the directions of his superior and as per the directions given in the police manual to the effect that when a stranger does not identify himself and proceeds, then he has to give a warning to the person or persons and if they do not stop or identify themselves, then he can open the fire. ( 21 ) IN the present circumstances, with whatever the little evidence in a scanty form is led by the prosecution, we are convinced that the deceased was relieved by A-1 and he went out of the police station for the reasons best known to him with a rifle without depositing the same at the police station and after some time when he realised that he had not deposited the rifle, he was making entry in cognitive from the backside of the police station. He did not disclose his identity when A-1 appellant herein told him to reveal his identity. Therefore, A-l had to open the fire. ( 22 ) ADMITTEDLY in the present case, the evidence is led to the effect that the D. S. P. , of east Godavari was given a warning that the police station in question would be blasted and, therefore, all the police personnel on duty were alert. We would say that A-1 was not only alert but he did his duty as per law, he defended himself, he defended the police station and no offence is disclosed against him. Therefore, we set aside the order of conviction and sentence recorded against the accused-appellant and acquit him with honour. We further direct that he be set at liberty, if not required in any other case. Therefore, we set aside the order of conviction and sentence recorded against the accused-appellant and acquit him with honour. We further direct that he be set at liberty, if not required in any other case. Fine amount, if paid, be returned to him.