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2014 DIGILAW 554 (AP)

Poteti Yellaiah v. State of Andhra Pradesh

2014-04-16

L.NARASIMHA REDDY, M.S.K.JAISWAL

body2014
JUDGMENT : L. Narasimha Reddy, J. These two appeals arise out of the judgment dated 08.02.2010 rendered by the Court of III Additional Sessions Judge (FTC), Khammam in S.C. No. 333 of 2009. All the three accused were put to trial with the charges of murder and robbery at a religious place in Thallampadu Village of Khammam District, on the intervening night of 9th/10th of September, 2007. The case against A2 is said to have been split up due to his non-availability. The trial Court convicted A1 and A3 for the offences alleged against them. Sentences of imprisonment for life and fine of Rs. 1,000/- each was imposed on both the accused, for the two offences, separately. The sentences, however, were directed to run concurrently. While A1 filed the Crl.A. No. 916 of 2010, A3 filed Crl.A. No. 326 of 2010. 2. The case of the prosecution was that, the deceased, by name, Mummalaneni Sambasiva Rao, became a religious personality, and with his own funds, he constructed a three storied building abutting the main road from Khammam to Suryapet in the Tallampadu Village. Lord Shiva temple existed on the second floor. Sambasiva Rao and his wife, PW.1, were residing in the first floor, and the facilities for devotees were provided in the ground floor. At around 11.00 p.m., on 09.09.2007 Sambasiva Rao is said to have woken up and opened the door to go to the ground floor to answer nature call, and at that time, three unknown persons came and gained entry into the premises. They are said to have dealt blows upon PW.1, and took Sambasiva Rao to the ground floor and caused his death. They are also said to have taken away DVD player, Mangalasutra and two ear studs of PW.1, and bolted the premises from outside by leaving her inside. The land telephone connection is said to have snapped away by the culprits. 3. PW.1 is said to have passed on information about the incident, to her brother, PW.4, who was working in the police station at Mudigonda of Khammam District. The poojari of temple, PW.2, is said to have come to the place in the morning, and opened the door of the premises in the first floor. He is also said to have noticed the dead body of Sambasiva Rao, and that, number of persons or devotees, have gathered. 4. The poojari of temple, PW.2, is said to have come to the place in the morning, and opened the door of the premises in the first floor. He is also said to have noticed the dead body of Sambasiva Rao, and that, number of persons or devotees, have gathered. 4. A written complaint, Ex.P1, was submitted by PW.1 at 10.00 a.m., after the police reached the place of occurrence. The scene of offence panchanama was prepared, inquest on the body was conducted, and it was sent for postmortem examination. The statements of the persons, who are acquainted with the incident, were recorded. 5. In the course of investigation, the accused are said to have been arrested by PW.9 on 07.11.2007. A test identification parade was conducted in the presence of PW.11, and the stolen items are said to have been recovered under a panchanama. With this information, PW.9 filed a charge sheet. The trial Court framed the charges and on the accused pleading not guilty, the trial was conducted. On behalf of the prosecution, PWs.1 to 11 were examined and Exs.P1 to P20 were filed. MOs. 1 to 8 were also taken on record. A1 to A3 were convicted and sentenced. 6. Sri T. Bali Reddy, learned Senior Counsel for A3 and Smt A. Gayatri Reddy, learned counsel for A1, submit that the entire case depends upon the circumstantial evidence, and the one adduced by the prosecution, is not at all sufficient to link the accused to the unfortunate incident. They submit that PW.1 was not at all sure, as to the manner in which, Ex.P1 was presented, and a scrutiny of the evidence makes it clear that the entire case was engineered by PW.4, the police official. They contend that according to PW.1, the faces of the assailants covered with masks, and it is just impossible for her to identify them in the test identification parade. They further submit that no evidence whatever, in relation to the charge referable to Section 302 IPC was proved, and still the trial Court held A1 and A3 guilty of that offence also. 7. Learned Additional Public Prosecutor, on the other hand, submits that in the cases of this nature, one cannot expect existence of eye witnesses, and the circumstantial evidence adduced by the prosecution was cogent and consistent. 7. Learned Additional Public Prosecutor, on the other hand, submits that in the cases of this nature, one cannot expect existence of eye witnesses, and the circumstantial evidence adduced by the prosecution was cogent and consistent. She contends that both the accused are notorious criminals and have committed several robberies, and this is one such incident. It is argued that the greed and inhumanity on the part of the accused is evident from the fact that they did not hesitate to kill even a religious personality, and that they do not deserve any mercy or sympathy. 8. The offences of various kinds take place mostly, on account of the lack of moral values, and ethics in life, in the persons that resort to such criminal acts. The phenomenon is as old as humanity. However, a civilised society always endeavours to inculcate the values in life for its members. The religious institutions are well suited for this process. In the instant case, an important institution, which was established to inculcate such values, was dealt a fatal blow by the accused just for the sake of a little wealth. 9. It has already been mentioned that Sambasiva Rao constructed temple in the third floor, himself and his wife were residing in the first floor and the ground floor was earmarked for the facilities for the devotees. The door of the first floor was opened at 11 O' clock by Sambasiva Rao, since he wanted to answer a nature call at the ground floor. Exactly at that time, the accused came. They first attacked PW.1, caused injuries to her, snatched her Talibottu, and two ear studs, apart from taking away DVD from the premises. Having done that, they bolted the door from outside and attacked Sambasiva Rao, demanding some more wealth. Obviously because, he expressed his inability to satisfy the needs of the culprits, they beat him to death. 10. For the incidents of this nature, hardly we can expect existences of eye witnesses. The very purpose of choosing deadly night, by the robberies and thieves, is just to avoid the attention of other persons. Howsoever, loath the Courts may be to rest their conclusions upon confessions and recoveries in other cases, a different approach is warranted, when the crimes alleged are theft, robbery, and the like. The very purpose of choosing deadly night, by the robberies and thieves, is just to avoid the attention of other persons. Howsoever, loath the Courts may be to rest their conclusions upon confessions and recoveries in other cases, a different approach is warranted, when the crimes alleged are theft, robbery, and the like. If the arrests and consequential confessions of a suspect of a crime are followed by the recovery of articles stolen from the victims, the suspicion slowly develops into one, of proof. If there exist any criminal background for the accused, the case becomes still stronger. 11. In the instant case, the accused were arrested on 07.11.2007 by the Investigating Officer, after he received reliable information. This was followed by recovery of the articles stolen from the premises. A perusal of the charge sheet filed in this case discloses that the accused are notorious in committing crimes and several cases are pending against them, wherein, the charges of attempt to murder, dacoity and robbery are framed. 12. Whatever may be the satisfaction of the police about the identity of the persons nabbed by them, the link vis-à-vis crime gets establishes only when the victim identifies the persons, who are arrested. In this case, the test identification parade was conducted in the presence of a Judicial Magistrate, PW.11, and all the prescribed precautions were taken. PW.1 identified all the three accused. Though it was alleged that they were shown to PW.1 at one point of time, that was not established. The trial Court accepted the result of the test identification parade and we do not see any reason to differ with it. 13. A close perusal of the oral and documentary evidence on record reveals that the accused in this case are habitual dacoits and robberies that the commission of offences vis-à-vis, the deceased, and PW.1 is established. It may be true that PW.1 stated that the persons, who entered their house, had masks on their faces. However, it would not be difficult for a person, who received the injuries in the hands of such persons, to identify them with reference to their broad features, such as height, the way in which, they talk, look, behave etc. PW.1 suffered injuries in the hands of the accused and her attention is bound to be focused on the persons, who caused injuries to her. PW.1 suffered injuries in the hands of the accused and her attention is bound to be focused on the persons, who caused injuries to her. Added to that, the recovery of the articles stolen from the accused leaves hardly any doubt in the matter. Therefore, the charge referable to Section 394 IPC can safely be said to have been proved. 14. The accused were held guilty of charge punishable under Section 302 IPC also. We find some strength in the argument of the learned counsel for the accused that even PW.1 did not throw any light on this aspect, since she is said to have been bolted inside, and that no other independent evidence exists. A1 and A3 did not have any specific grievance or animosity against the deceased, and at the most, they may have dealt with him very roughly and in a violent manner, in the process of committing robbery, and that may have resulted in the death of the deceased. We are of the view that it is a case that it fits into Part–II of Section 304 IPC. 15. Hence, we allow the appeals partly. (a) upholding the conviction against A1 and A3 for the offence punishable under Section 394 IPC (b) to alter the conviction ordered by the trial Court for the offence punishable under Section 302 IPC to be the one of part-II of Section 304 IPC. 16. For both the punishments, we award separate sentences of Rigorous Imprisonment for seven (07) years, and imposed fine of Rs. 1,000/- on each count. However, both the sentences shall run concurrently.