Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 393 (AP)

Mylabathula Chittibabu v. State Of A. P.

2005-04-21

BILAL NAZKI, L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THIS Eluru. The appellants (hereinafter referred criminal appeal is filed by A-2 and A-3 in to as A-2 and A-3), as well as A-1, were s. C. No. 108 of 1997, on the file of the tried for the offence of committing the sessions Judge, West Godavari Division at murder of Mandru Yobu S/o. Suvarna Raju, on 20. 10. 1996. A-1 died during the pendency of the case in the trial Court. ( 2 ) P. W. 2, the deceased, and one Mr. Lazar are brothers. It is alleged that Lazar had illicit intimacy with the wife of A-1, by name Mariyamma, and the caste people have resolved the dispute, by imposing fine on the said two persons. One year before the incident, the deceased is said to have caused injury to A-1, and the same resulted in registration of a case. The deceased was acquitted in that case. The relations continued to be strained between the families of the deceased on the one hand, and that of A-1 on the other hand. ( 3 ) JT is alleged that on 20. 10. 1996, the deceased and PW-2 went to a shandy in the village, purchased vegetables and mutton, and when they were returning at 5-30 p. m. , A-1, A-2 and A-3 are said to have hacked the deceased from behind, nearby the house of one Medicherla tatarao. Apart from PW. 2, PWs. 3 to 5 are said to have witnessed the occurrence. While pw. 2 is said to have run away from the scene on seeing A-l and A-2 attacking the deceased, PWs. 3, 4 and 5 spoke to the fact that A-3 had also attacked the deceased with a knife. ( 4 ) ON behalf of the prosecution, pws. 1 to 11 were examined and Exs. P-1 to p-30 were marked. None of the witnesses were cross-examined. Taking the version presented in the chief-examination into account, the trial Court convicted A-2 and a-3, through its judgment dated 27. 9. 2000. ( 5 ) CRIMINAL Appeal No. 1675 of 2000 was filed by A-2 and A-3. A Division Bench of this Court took the view that the accused were denied the benefit of cross-examination, on account of the disinclination on the part of their Counsel in the trial court. Through its judgment dated 3. 7. 9. 2000. ( 5 ) CRIMINAL Appeal No. 1675 of 2000 was filed by A-2 and A-3. A Division Bench of this Court took the view that the accused were denied the benefit of cross-examination, on account of the disinclination on the part of their Counsel in the trial court. Through its judgment dated 3. 7. 2002, this Court had set aside the conviction and sentence against A-2 and A-3, and remanded the matter to the trial Court, with a specific direction to recall the material witnesses, viz. PWs. 2, to 5, for cross-examination. PWs. 2 to 5 were recalled after remand and were cross-examined. All the four witnesses turned hostile. The trial Court took the view that the statements made by the said witnesses, in the chief-examination, are reliable and neutral, and on consideration of the same, convicted A-2 and A-3 for the offence under Section 302 of 1pc, through its judgment dated 10. 12. 2002. It sentenced them to under go imprisonment for life and to pay fine. ( 6 ) THE learned Counsel for the appellants submits that the trial Court committed material irregularity in convicting and sentencing A-2 and A-3, only on the basis of the chief-examination of PWs. 2 to 5. He submits that the very importance of cross-examination was defeated, by totally ignoring the version of the material witnesses in the cross-examination. He further contends that in the absence of any evidence, connecting A-2 and A-3 to the incident, the trial Court was not justified in convicting them. ( 7 ) THE learned Public Prosecutor submits that the failure to cross-examine the witnesses on the earlier occasion was deliberate and purposeful, and the witnesses were won over, by the time, the matter was remanded. He contends that the appellants have reduced the entire exercise of criminal trial into an empty formality, and in fact have tarnished the image of the legal system. He contends that when such a deliberate attempt was made by various individuals to subvert the judicial process, the trial Court was justified in convicting a-2 and A-3. ( 8 ) THIS case demonstrates as to how vulnerable the criminal justice system has become. PW-1, the Village Administrative officer, prepared a report Ex. P-1, on the basis of the information furnished to him by PW. 2. The latter is said to have informed pw. ( 8 ) THIS case demonstrates as to how vulnerable the criminal justice system has become. PW-1, the Village Administrative officer, prepared a report Ex. P-1, on the basis of the information furnished to him by PW. 2. The latter is said to have informed pw. 1 that his brother by name Yobu was hacked to death by the accused, while they were returning after purchasing vegetables etc. The victim is said to have died instantly. The police undertook investigation and recorded the statements of PWs. 1 to 5 and other witnesses. The charge was framed and the trial commenced. ( 9 ) PW. L deposed to the factum of his submission of the complaint, Ex. P. 1, on the basis of the information received by him from PW. 2. He was not cross-examined. PW. 2 is the brother of the deceased. In his chief-examination, he deposed that while himself and the deceased were returning from the shandy, A-2 and A-3 hacked his brother from behind with knives, and on seeing the same; he ran away from the scene of offence. He has spoken about the illicit intimacy, between his other brother Lazar and the wife of A-1, and the factum of both of them having been fined. PW. 3 is a person acquainted with the deceased and PW. 2. He too is said to have accompanied both of them when the incident took place. Same is the case with PWs. 4 and 5. PWs. 4 and 5 have stated that A-3 had also attacked the deceased. The other witnesses are neither direct nor of much significance. ( 10 ) PWS. 2 to 5 are the eye-witnesses to the incident. Had at least a fraction of what is stated by PWs. 2 to 5 in the chief- examination been retained in its spirit and letter, in their cross-examination, there would not have been any difficulty in sustaining the conviction of A-2 and A-3. It is rather surprising that none of the witnesses were cross-examined at the initial stage. The trial court was left with no alternative, except to take the chief-examination on its face value, and to convict A-2 and A-3. In Criminal appeal No. 1675 of 2000, it was pleaded before this Court that the failure to cross-examine the witnesses was due to lapses on the part of the Counsel for the accused, in the trial Court. The trial court was left with no alternative, except to take the chief-examination on its face value, and to convict A-2 and A-3. In Criminal appeal No. 1675 of 2000, it was pleaded before this Court that the failure to cross-examine the witnesses was due to lapses on the part of the Counsel for the accused, in the trial Court. This Court had even summoned the Counsel for the accused in the trial Court. With a view to ensure fairness to the accused, the matter was remanded to the trial Court, with a specific direction that PWs. 2 to 5 shall be subjected to cross-examination. ( 11 ) SURPRISINGLY, PW. 2, who is none other than the brother of the deceased, has stated in the cross-examination that he does not know the cause of the death of his brother, and that he did not witness the attack on the deceased. As to the knowledge of the death of his brother, he had simply stated that when he was going to coolie work, he saw the gathering of some people at Malapalli, and there, he came to know that his brother died. It is also stated that the statements made by him in the chief-examination were on account of the threat administered to him by the police. PW. 3 went a step further and stated that he had been to Krishna district at the relevant point of time, and returned to his place only 15 days, after the death of the deceased. PW. 4 deposed that he gave false evidence in the chief-examination due to threats given by the police. PW. 5 stated in his cross-examination that he does not know as to who killed the deceased, and that he did not witness the incident. He too attributed threat by the police, for the version presented by him in the chief-examination. ( 12 ) THE text of the cross-examination by PWs. 2 to 5 discloses that the omission by the defence, to cross-examine all the witnesses at the initial stage was neither accidental, nor attributable to the Counsel for the accused. A plan appears to have been hatched to get an acquittal, by not undertaking any cross-examination of the witnesses. When the trial Court convicted a-2 and A-3, the blame was shifted to the defence Counsel in the trial Court. A plan appears to have been hatched to get an acquittal, by not undertaking any cross-examination of the witnesses. When the trial Court convicted a-2 and A-3, the blame was shifted to the defence Counsel in the trial Court. This court remanded the matter, directing the trial Court to record the cross-examination of PWs. 2 to 5. The collusion between the prime witnesses and the accused came to full circle when all of them turned hostile. With PWs. 2 to 5 turning hostile, the situation became more undependable, compared to the one where the chief- examination of witnesses remained uncontroverted because of non-cross- examination. Obviously, having been perturbed by these outrageous developments, the trial Court convicted A-2 and A-3 once again. ( 13 ) JT is true that the Supreme Court held in some of the reported cases that even where a witness turns hostile, the undisputed and neutral portion of the evidence of such witness can be taken into account. In the instant case, it is difficult to discern any such portion in the evidence of PWs. 2 to 5. They resorted to a wholesale retraction from their chief- examination and left nothing to be relied upon. This Court cannot remain oblivious to such a grave situation and sustain the conviction. ( 14 ) IRRESPECTIVE of the motives for a witness in turning hostile, or the factors that led to the same, the importance of the cross-examination in a criminal trial cannot be underestimated. What remains out of the evidence of a witness, is the sum of what is stated in the chief-examination, minus, what is neutralized or contradicted in the cross- examination. The principle that the evidence of a witness, who does not offer himself for cross-examination, cannot be taken into account at all, emphasizes the importance of cross-examination. If the witness had deposed falsely in the chief or cross- examination, he may become liable to be tried for an offence under Section 193 of ipc. However, even if the inconsistency or falsehood in the deposition is apparent, or tainted with an unlawful motive to water down the gravity of the charge, the Court cannot ignore the effect of the statement made in the cross-examination, upon the version presented in the chief-examination. From this point of view, there hardly exists any evidence against A-2 and A-3 to connect them to the death of the deceased. From this point of view, there hardly exists any evidence against A-2 and A-3 to connect them to the death of the deceased. Therefore, they deserve to be acquitted. ( 15 ) WE, accordingly, allow the appeal, and set aside the conviction and sentence awarded by the trial Court against A-2 and a-3, the appellants herein. They shall be released forthwith, unless they are required in any other case. ( 16 ) THIS Court, while allowing criminal Appeal No. 1675 of 2000, remanded the matter to the trial Court, with a specific direction to recall PWs. 2 to 5 and cross-examine them. The purport of their cross-examination discloses that they have totally misled the Court by deliberate retraction from the statements made by them in the chief-examination. Unless such practices are curbed, a tendency is prone to emerge, to derail the very criminal justice system. Hence, we direct the learned sessions Judge, Eluru, to take necessary steps for prosecuting PWs. 2 to 5, for an offence under Sections 191 and 193 of IPC, in accordance with law.