Research › Search › Judgment

Telangana High Court · body

2020 DIGILAW 843 (TS)

Gorla Ilaiah v. State of A. P.

2020-12-08

B.VIJAYSEN REDDY, R.S.CHAUHAN

body2020
JUDGMENT : R.S. Chauhan, J. 1. Having been convicted for the offence under Section 302 read with Section 34 IPC, having been sentenced to life imprisonment, and imposed with a fine of Rs. 1,000/- each, and further directed to undergo rigorous imprisonment of two months, in default thereof, by judgment, dated 04.02.2014, passed by the learned III Additional Sessions Judge, Karimnagar, in S.C. No. 237 of 2012, the appellants have approached this Court. 2. Briefly, the facts of the case are that on 13.10.2011, at 1:00 a.m., Gorla Vanamma (P.W.1) lodged a complaint (Ex. P.1) before the Sub-Inspector of Police, Husnabad Police Station, wherein she stated that she and her husband, Gorla Rajesham, are residents of Mothkulapalli Village. They eke out their living by doing farming. She also stated that, "today i.e., 12.10.2011, Wednesday, at night 9:30 p.m., my husband Gorla Rajesham, S/o. Muthaiah, Age: 45 years, Caste: Golla, R/o. Mothkulapalli Village along with our villager, Barma Prabhu, R.M.P. Doctor went to the agricultural fields situated at the outskirts of the village to graze the cattle. On the same day, about 10:00 p.m., the wife of Barma Prabhu i.e., Barma Srilatha came to me and informed me that some unknown persons were quarrelling with my husband, on that I informed the same to my neighbours and started to (sic) the agricultural fields along with my daughter and on the way, at the road culvert turning, public gathered, then I went there and found my husband dead having received bleeding injuries and the dead body was lying in the bushes. I found cut injury at the neck of my husband. Since sometime we and our agnates and village Lambadi people are having disputes regarding lands. Court cases are also filed and said cases are pending in the Court. Keeping the said grudges in mind, when my husband went to the fields, my agnates or Lambadi people who were hiding there and waiting with an intention to kill my husband chased him till our fields and attacked with deadly weapons and killed him." 3. On the basis of the said complaint (Ex. P.1), the police registered a formal FIR, namely FIR No. 218 of 2011, for the offence under Section 302 read with Section 34 IPC. The investigation commenced. During the course of investigation, the appellants and one Gorla Nadipi Komraiah were arrested, and put up for trial. On the basis of the said complaint (Ex. P.1), the police registered a formal FIR, namely FIR No. 218 of 2011, for the offence under Section 302 read with Section 34 IPC. The investigation commenced. During the course of investigation, the appellants and one Gorla Nadipi Komraiah were arrested, and put up for trial. They were charged for the offence under Sections 147, 148, 447 and 302 read with Section 149 IPC. By the impugned judgment, the accused No. 5 was totally acquitted of all the charges, and the appellants (A-1 to A-4) were also acquitted for the offence under Sections 147, 148 and 447 IPC. However, the appellants (A-1 to A-4) were found guilty of the offences under Section 302 read with Section 34 IPC; they were sentenced as aforementioned. Hence, this appeal before this Court. 4. As the trial unfolded itself, the prosecution claimed that A-1 to A-5 are the cousin brothers of the deceased, Gorla Rajesham. Once upon a time, the village elders had given Acs. 120.00 of land to the people belonging to the Golla Community, and to the Lambadi Community for the purpose of grazing their cattle. Subsequently, on a request made by the Golla Community, the elders of the village registered Acs. 30.00 of land in the name of Gorla Veeraiah, Acs. 30.00 of land in the name of Gundaboina Veeraiah, and another Acs. 60.00 of land in the name of Gugloth Lakya Naik. However, the said land was never cultivated; it lay fallow. After the death of Gorla Veeraiah, his two sons inherited the land. But even they did not cultivate the land. Subsequently, the grandsons of Gorla Veeraiah i.e., Gorla Rajesham (the deceased), and A-1 and A-2 (his cousin brothers), shared the land equally. While Gorla Rajesham (the deceased) had Acs. 15.00 of land to his name, A-1 and A-2 had Acs. 7.50 guntas of land each to their respective names. Moreover, according to the prosecution, the deceased took A-1 to the Sub-Registrar's Office, Bheemdedvapally. He obtained the signatures of A-1 by telling him that the lands are being sold to one Nalla Yadagiri; the total amount would be distributed equally amongst the brothers. However, subsequently, the deceased, Gorla Rajesham, refused to give any amount to A-1. Therefore, disputes erupted between the deceased and the A-1. Due to the dispute, A-1 and A-2 approached the village elders. However, subsequently, the deceased, Gorla Rajesham, refused to give any amount to A-1. Therefore, disputes erupted between the deceased and the A-1. Due to the dispute, A-1 and A-2 approached the village elders. But, despite the best advice of the village elders, the deceased refused to part with the consideration amount, and share the same with A-1 and A-2. In fact, the deceased claimed that A-1 and A-2 have no land in their name. 5. Furthermore, when A-1 and A-2 asked the deceased to demarcate the boundaries of their respective land, instead of doing so, the deceased lodged a police complaint against A-1 and A-2. Therefore, A-1 and A-2 contacted A-3 and A-4, and planned to kill Gorla Rajesham. The prosecution claimed that, on 12.10.2011, A-1 to A-5 assembled at the back of the cattle shed belonging to the deceased. At about 9:30 p.m., the deceased came along with Ande Savitri (P.W.5), but when he heard Ande Savitri (P.W.5) shouting, he ran for his life. However, according to the prosecution, A-1 to A-5 caught hold of the deceased, and killed him. The prosecution further claimed that, during the ensuing fight, Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17) arrived at the scene of the crime. Seeing them, A-1 to A-5 fled from the place. 6. In order to establish its case, the prosecution examined twenty-three witnesses, submitted twenty-six documents, and deposited twelve material objects. In turn, the defence produced a single document, but did not examine any witness. After completing the trial, the learned Trial Court convicted and sentenced the appellants as mentioned above. 7. Learned counsel for the appellants have raised the following contentions before this Court:- Firstly, a case that began as a case based on circumstantial evidence, was converted into a case of direct evidence by the investigating agency. For, according to Gorla Vanamma (P.W.1), she had lodged the complaint (Ex. P.1) with the police. In her FIR, she had clearly claimed that she is not an eye-witness, and the body of her husband was merely discovered by the people. Thus, in her FIR, she does not name any eye-witness of the alleged incident. Secondly, even in the FIR, the complainant is unsure whether the assailants were the appellants, or the people from the Lambadi Community. Therefore, the prosecution case is on shaky grounds. Thus, in her FIR, she does not name any eye-witness of the alleged incident. Secondly, even in the FIR, the complainant is unsure whether the assailants were the appellants, or the people from the Lambadi Community. Therefore, the prosecution case is on shaky grounds. Thirdly, although the prosecution has examined Ande Savitri (P.W.5) and Barma Prabhu (P.W.8) as eye-witnesses, both these witnesses have turned hostile; they have not supported the case of the prosecution. Therefore, the prosecution has based its entire case on the testimony of Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17). For, both these witnesses have been produced as eye-witnesses of the incident. Both these witnesses, in fact, happen to be concocted witnesses. For, although both the witnesses claim that they knew the deceased, but in their statements recorded under Section 161 Cr.P.C., and in the testimony recorded in the Court, they both claimed that they heard the cries of "someone", and when they focused their bike lights in the direction from where the cries came from, they saw the accused persons having knives in their hands. Surprisingly, despite knowing the deceased, they do not name the deceased, but claim that they heard the cries of "someone". Furthermore, despite the fact that they admitted in their testimonies that they were present on the next day at the scene of the crime, when the police and the villagers gathered, they maintain a studied silence about the fact that they had "seen the commission of the offence". According to both these witnesses, since people in the public had heard them discuss about the incident themselves, the people had informed the police that there are two eye-witnesses, namely Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17). According to the learned counsel, an eye-witness who keeps a studied silence over the commission of a crime and does not reveal his knowledge about the commission of the crime, does not deserve to be accepted as a trustworthy witness. Therefore, the prosecution has relied upon the two witnesses, who are untrustworthy. Fourthly, but for the testimonies of these two alleged eyewitnesses, the prosecution has not produced sufficient evidence for convicting the accused-appellants. After all, devoid of the testimonies of these two eye-witnesses, the prosecution case is based only on circumstantial evidence. Yet, the circumstantial evidence has not formed a complete chain of events which unerringly point towards the guilt of the accused-appellants. After all, devoid of the testimonies of these two eye-witnesses, the prosecution case is based only on circumstantial evidence. Yet, the circumstantial evidence has not formed a complete chain of events which unerringly point towards the guilt of the accused-appellants. Lastly, since the complainant herself is unsure whether her husband had been killed by the appellants, or by the members of the Lambadi Community, the benefit of doubt should be given to the appellants; they should be acquitted by this Court. 8. On the other hand, the learned Public Prosecutor has raised the following counter-arguments before this Court:- Firstly, it is not the number of witnesses, but the sterling quality of a witness that is relevant for establishing the case of the prosecution. Therefore, even if the prosecution has examined Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17) as the eye-witnesses, both the eye-witnesses are sufficient for establishing the case of the prosecution. For, both the eyewitnesses clearly state that, while they were going to Rasoolpalli Village, near the crossing of Mothkulapalli Village, they heard the shouts of a person; when they turned the lights of their bike in the direction from where the shouts came from, they saw the appellants with knives. They further claimed that the appellants threatened them. Therefore, these two witnesses left the scene of the crime. On the next day, they were informed that the deceased had been killed. These two witnesses had also identified the appellants in the Test Identification Parade, as mentioned in the Test Identification Parade Proceedings (Ex. P.18). The fact that these two witnesses had identified the appellants is corroborated by the testimony of Ms. G. Bhavani Chandra (P.W.21), the learned Judicial Magistrate, who conducted the Test Identification Parade. Therefore, through their testimonies, the prosecution had clearly established its case as a case of direct evidence. Secondly, Dr. M. Sridhar Rao (P.W.20) had clearly stated that he had conducted the autopsy of the deceased, where he found both cut and puncture wounds. According to the Post-Mortem Report (Ex. P.16), the cause of death was bleeding due to deep cut around the neck, and cutting of underlying major vessels. Hence, the prosecution had clearly established that the deceased had suffered a homicidal death. Therefore, the learned trial Court was justified in convicting the appellants. 9. Heard the learned counsel for the parties, perused the impugned judgment, and examined the record. 10. Hence, the prosecution had clearly established that the deceased had suffered a homicidal death. Therefore, the learned trial Court was justified in convicting the appellants. 9. Heard the learned counsel for the parties, perused the impugned judgment, and examined the record. 10. The learned counsel for the appellants is certainly justified in claiming that the prosecution began the case as if it were a case based on circumstantial evidence. For, Gorla Vanamma (P.W.1), the complainant, does not mention any of the appellants in the FIR lodged by her. However attractive as this argument may be, in a deeper probe of the evidence, the said argument is devoid of any merit. For, Gorla Vanamma (P.W.1) is not an eye-witness to the incident. In her testimony, she clearly states that at about 10:00 p.m., the wife of Barma Prabhu, namely Barma Srilatha, came to their house, and informed them that some "galata" (affray) is going on in the fields belonging to the complainant. She further claims that she came to know about the "galata" (affray) from Prabhu. Immediately she went to the fields with her daughters, Gorla Sailaja (P.W.2) and Gorla Soujanya (P.W.3). There they have found the dead body of her husband lying in the bushes near their fields. However, it is only during the course of investigation that the appellants were discovered and arrested. It is also in the course of investigation that the statements of Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17) were recorded. Since Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17) claimed to be eye-witnesses, naturally, the case turned from being a case based on circumstantial evidence to a case based on direct evidence. Hence, the first contention raised by the learned counsel for the appellants is clearly unacceptable. 11. The entire case of the prosecution rests on the testimonies of Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17). Hence, it is imperative to quote their testimonies. 12. Pasham Srinu (P.W.13) informs the Court that, "I know all the accused and also deceased. Deceased died on 5-10-2011. I came to know that accused killed the deceased. On the date of incident, I along with L.W.14/Vamshi (P.W.17) and L.W.15/Shiva Krishna (not examined by the prosecution) were going to Rasoolpalli. Hence, it is imperative to quote their testimonies. 12. Pasham Srinu (P.W.13) informs the Court that, "I know all the accused and also deceased. Deceased died on 5-10-2011. I came to know that accused killed the deceased. On the date of incident, I along with L.W.14/Vamshi (P.W.17) and L.W.15/Shiva Krishna (not examined by the prosecution) were going to Rasoolpalli. Meanwhile, near the crossing of Mothkulapalli Village, we heard the cries of someone, and when we focused our bike lights on that side, we saw all the accused are having knives in their hands, and they threatened us to go away from that side. On that we went away from that place. On the next day we came to know that Rajesham was murdered, and we went there and saw the deceased in the place where we saw the galata (affray) on the previous night. When myself and L.W.14/Vamshi (P.W.17), L.W.16/Shiva Krishna were talking between ourselves about the previous night's incident, somebody heard the same and informed to the SI, and the SI of Police called us, and enquired about the same. And later we gave the statement before the CI of Police and went to the Test Identification Parade and identified the accused in jail. We observed the dead body of the deceased and found injuries on his neck and stomach. We came to know that there were disputes between the deceased and the accused regarding the lands." 13. In the cross-examination, this witness informs the Court that, "It is true that I have not stated before the police that we heard the cries and focused our bike lights on that side and observed the accused having knives in their hands and they threatened us to go away from that place, and next day when I along with L.W.14/Vamshi (P.W.17), L.W.16/Shiva Krishna were talking between ourselves about the previous night's incident, somebody heard the same and informed to SI and SI of Police called us and enquired about the same. Deceased is our distant relative." He further admits in his cross-examination that, "we three have not stated to anybody about the incident on that night." 14. A similar statement has been given by Ginnarapu Vamshi Krishna (P.W.17). 15. A bare perusal of the testimony of both these witnesses clearly reveals that both the witnesses claim to know the accused and the deceased. A similar statement has been given by Ginnarapu Vamshi Krishna (P.W.17). 15. A bare perusal of the testimony of both these witnesses clearly reveals that both the witnesses claim to know the accused and the deceased. Yet, they claim that they heard the cries of "someone". Thus, they are unsure as to whose cries they had heard. In case they knew the deceased, they certainly should have said that they heard the cries of the deceased, especially, when Pasham Srinu (P.W.13) claims to be the distant relative of the deceased. 16. Moreover, both these witnesses claim that they know the accused persons. In case the accused were known to these witnesses, there was no need for the investigating agency to hold the Test Identification Parade. After all, Test Identification Parades are held only when a witness claims that the offender was a stranger to him. Therefore, it seems that the investigating agency has been overcautious by subjecting the appellants to the Test Identification Parade. For, both the alleged eye-witnesses already claim to know the accused persons. 17. Most importantly, both the witnesses claimed that they were present on the next date of the incident at the scene of the offence. They further claimed that there were other villagers and police personnel available at the scene of the crime. Yet neither of these two witnesses immediately informed the police that they have seen the occurrence of the crime. In fact, according to both these witnesses, it is the other villagers, who informed the Sub Inspector of Police that these two witnesses had, allegedly, seen the incident. Both these witnesses further admit in their cross-examination that they did not inform anyone about the affray that they had witnessed at night. The studied silence of these two witnesses throws a grave doubt on the veracity of their testimony. 18. Both these witnesses admit in the cross-examination that, even in their statement recorded under Section 161 of Cr.P.C., they did not tell the police that at night they had focused their bike lights in the direction from where the shouts and cries came, and that they had seen the appellants armed with knives. This grave omission in their statement under Section 161 of Cr.P.C., and their testimony, wherein such a claim is made in their examination-in-chief, clearly points to a great exaggeration, which amounts to a contradiction. This grave omission in their statement under Section 161 of Cr.P.C., and their testimony, wherein such a claim is made in their examination-in-chief, clearly points to a great exaggeration, which amounts to a contradiction. If, indeed, these witnesses had seen the appellants carrying the knives at the dead of the night, they would have informed the police in their statement under Section 161 of Cr.P.C., as to how they were going on a bike, how they heard the shouts and cries of the deceased, how they turned the bike lights in the direction from where the shouts and cries were coming from, and that, indeed, they saw the appellants at the scene of the crime. Yet, these vital and basic facts are missing from their statement under Section 161 Cr.P.C. They seem to have woven this story only during the course of the trial. Thus, a critical analysis of the testimony clearly reveals that both Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17) are concocted witnesses, whose testimony cannot be accepted as being trustworthy. Needless to say, a conviction cannot be based on untrustworthy testimonies. 19. It is true that according to G. Bhavani Chandra (P.W.21), she was requested by the Circle Inspector of Police for obtaining the permission from the learned I Additional District Judge to proceed to the Sub-Jail, Huzurabad, for conducting the Test Identification Parade in the case. She further informs the Court that Pasham Srinu (P.W.13) identified all the accused persons, A-1 to A-5, and Ginnarapu Vamshi Krishna (P.W.17) could identify only A-4. However, as stated above, since both these witnesses, Pasham Srinu (P.W.13) and Ginnarapu Vamshi Krishna (P.W.17), claimed that they knew the appellants, there was no need for the investigating agency to even hold a Test Identification Parade. Thus, the holding of the Test Identification Parade is not only redundant, but also reveals the overcautious approach of the investigating agency. It is only to, needlessly, "strengthen their case" that the investigating agency has decided to hold the Test Identification Parade. 20. Admittedly, Dr. M. Sridhar Rao (P.W.20) has proven the Post-Mortem Report (Ex. P.16). According to Dr. M. Sridhar Rao (P.W.20), the deceased had suffered nine external injuries, and two internal ones. It is only to, needlessly, "strengthen their case" that the investigating agency has decided to hold the Test Identification Parade. 20. Admittedly, Dr. M. Sridhar Rao (P.W.20) has proven the Post-Mortem Report (Ex. P.16). According to Dr. M. Sridhar Rao (P.W.20), the deceased had suffered nine external injuries, and two internal ones. The cause of death of the deceased is due to haemorrhage and shock because of bleeding due to deep cut around the neck and cutting of underlying major vessels, and cutting of carotid artery and jugular veins. Therefore, the prosecution has succeeded in establishing that the deceased had suffered a homicidal death. 21. However, the moot issue is whether the appellants are the author of the injuries suffered by the deceased or not? As discussed above, the prosecution has failed to establish the fact that it is, indeed, the appellants and "only the appellants", who inflicted injuries suffered by the deceased. There is a vast distance between "may be true" and "must be true" - a distance the prosecution is required to cover. [Shivaji Sahebrao Bobade v. State of Maharashtra, AIR 1973 SC 2622 ]. However, in the present case the prosecution has failed to cover the said distance. 22. Considering the fact that, even the complainant (Ex. P.1) in her complaint had mentioned the possibility that the deceased could have been killed by the people belonging to the Lambadi Community, and considering the fact that the prosecution has failed to prove the involvement of the appellants, the appellants deserve to be given the benefit of doubt. 23. In the result, the Criminal Appeal is allowed. The impugned judgment dated 04-02-2014, passed by the learned III Additional Sessions Judge, Karimnagar, in S.C. No. 237 of 2012, whereby the appellant Nos. 1 to 4 (accused Nos. 1 to 4), namely Gorla Ilaiah, s/o Chinna Venkataiah, Gorla Komraiah, S/o Chinna Venkataiah, Gorla Rajaveeru, s/o Komraiah and Gorla Sammaiah, s/o Lingaiah, were convicted and sentenced for the offences punishable under Sections 302 r/w 34 IPC, is set aside. The fine amount, if any, paid by them shall be refunded to them. Consequently, the appellant Nos. 1 to 4 (accused Nos. 1 to 4), namely Gorla Ilaiah, s/o Chinna Venkataiah, Gorla Komraiah, S/o Chinna Venkataiah, Gorla Rajaveeru, s/o Komraiah, and Gorla Sammaiah, s/o Lingaiah, shall be set at liberty forthwith, if they are not required in any other case or crime. 24. Consequently, the appellant Nos. 1 to 4 (accused Nos. 1 to 4), namely Gorla Ilaiah, s/o Chinna Venkataiah, Gorla Komraiah, S/o Chinna Venkataiah, Gorla Rajaveeru, s/o Komraiah, and Gorla Sammaiah, s/o Lingaiah, shall be set at liberty forthwith, if they are not required in any other case or crime. 24. The miscellaneous petitions pending in this appeal, if any, shall stand closed.