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2024 DIGILAW 679 (AP)

Kowju Ravi Naga Babu @ Nagababu v. State of A. P.

2024-06-21

B.V.L.N.CHAKRAVARTHI, K.SURESH REDDY

body2024
JUDGMENT : B.V.L.N. Chakravarthi, J. 1. The accused No.1 and 2 in Sessions Case No.163/2014 on the file of learned IV Additional District and Sessions Judge, West Godavari at Tanuku, filed Criminal Appeal No.715/2016, whereas the accused No.3 in the above Sessions Case filed Criminal Appeal No.1327/2017. Both the appeals filed assailing the judgment dated 27.06.2016 delivered in the above Sessions Case, where under the learned Sessions Judge convicted the appellants/A-1 to A-3 for the offence U/s.460 of Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C’) and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for a period of three months each. 2. Pending appeal, the accused No.1 died on 03.06.2024. Therefore, this Court as per order dated 20.06.2024 dismissed the appeal filed by the appellant/A-1, as abated. Hence, the Criminal Appeal No.715/2016 filed by A-2 and the Appeal No.1327/2017 filed by A-3 were heard, considered, and disposed of by this common judgment. 3. The gravamen of the charge is that the accused No.1 to 3 on the intervening night of 10/11.11.2012 committed lurking house trespass by night, entering into the society building and caused death of watchman Sri Janga Rama Jogi (hereinafter referred to as ‘deceased’), and thereby committed offence U/s.460 I.P.C. 4. 3. The gravamen of the charge is that the accused No.1 to 3 on the intervening night of 10/11.11.2012 committed lurking house trespass by night, entering into the society building and caused death of watchman Sri Janga Rama Jogi (hereinafter referred to as ‘deceased’), and thereby committed offence U/s.460 I.P.C. 4. In nutshell, the case of the prosecution is that the deceased was working as night watchman in Primary Agricultural Co-operative Credit Society Building at Eletipadu village, Iragavaram Mandal, West Godavari District; on 10.11.2012 P.Bala Krishna Reddy (P.W-1) Secretary of the society left the office at about 07.00 p.m. The deceased locked office and slept at the veranda in the first floor of the building; on the intervening night of 10/11.11.2012 the accused No.1 to 3 entered into the society building through steps with an intention to commit theft; they approached the deceased, gagged his mouth, tied his hands and legs with a rope and killed him by smothering with a pillow; later, they opened the doors of the western side hall; they entered into the Secretary room, made attempt to open iron safe; they could not get any valuable property; they went away from the building; on the next day at about 05.30 a.m., G.Dhanalakshmi (P.W-6), Sweeper, came to the society and observed the deceased found dead in the veranda of the building; she immediately informed P.W-1 about the incident; P.W-1 came to the society building, noticed the watchman died and then presented a report to Iragavaram Police on 11.11.2012 at about 07.30 a.m. under Ex.P-1; P.W-14 Head Constable of Iragavaram P.S. basing on Ex.P-1 report, registered Ex.P-13 FIR and submitted to the learned Magistrate and copies to all concerned; Inspector of Police, Penugonda Circle (P.W-15) on receipt of copy of FIR, proceeded to scene of offence, secured witnesses P.W-10 and P.W-11 and inspected the scene of offence and prepared Ex.P-14 rough sketch; P.W-15 seized M.Os-1 to 11 available at the scene of offence; he informed dog squad and clues teams to visit scene of offence to collect evidence; the scene of offence was photographed and Exs.P-3 and P-4 are the photographs; he examined P.Ws-1 to 11 and others and recorded their statements; he conducted inquest in the presence of panchayadars under the cover of Ex.P-5 inquest report; the dead body of deceased was sent to Govt. Hospital, Tanuku, for post mortem examination; clues team visited the scene of offence; Finger Print Inspector (P.W-12) examined the scene of offence and found certain chance prints at the scene of offence. On 15.11.2012 on information received from P.W-14 regarding the presence of A-1 to A-3 with Village Revenue Officer (P.W-10), Eletipadu village.P.W-15 proceeded to Iragavaram P.S. and received Ex.P-6 report from P.W-10; he examined them and identified them as A-1 to A-3 and recorded their confessional statements and basing on the same, he seized M.Os-12 to 14 under the cover of Ex.P-8; later, on 16.12.2012 he sent fingerprints of the accused to Finger Prints Bureau, Eluru, for comparison with the chance finger prints available at the scene of offence; later, he received reports from P.W-12 vide Exs.P-9 and P-10 regarding comparison of chance fingerprints; the material objects were sent to RFSL, Vijayawada, for analysis; P.W-13 issued Ex.P-15 RFSL report; on receipt of post mortem report, P.W-15 laid charge sheet against the accused. 5. The learned Sessions Judge, basing on the evidence of P.W-1, P.W-10, P.W-12, P.Ws-13 to 15, convicted the accused No.1 to 3 for the offence U/s.460 I.P.C. as stated above. Challenging the said conviction and sentence, the present appeals came to be filed. 6. Sri S.M. Subhan, learned counsel for A-2 and Sri A. Sudhakar Rao, learned counsel for A-3 would contend that there are no eye witnesses to the incident. The case of the prosecution rested on circumstantial evidence. The circumstances relied on are (1) the alleged extra judicial confession made to P.W-10, (2) Finger Print Bureau Report given by P.W-12 i.e., Inspector of Finger Print Bureau, Eluru. The learned Sessions Judge failed to consider that the extra judicial confession is not a reliable piece of evidence, since P.W-10 admitted that he has no acquaintance with the accused prior to the offence. The evidence of P.W-10 was not corroborated by other evidence. The report of P.W-12 regarding collection of chance prints at the scene of offence and later comparing them with the finger prints collected from the accused is also not reliable, as no evidence is forth coming as to when and how the fingerprints were collected from the accused, after their arrest. P.W-15 did not state anything about the process relating to collection of finger prints from the accused. P.W-15 did not state anything about the process relating to collection of finger prints from the accused. The mediators P.W-10 and P.W-11 also did not depose that P.W-15 collected fingerprints from the accused in their presence after their arrest on 15.11.2012. Therefore, in the absence of evidence about the manner and procedure adopted regarding collection of fingerprints from the accused, the report of P.W-10 cannot be used to fix the presence of the accused at the scene of offence. There is no other legal evidence available on record connecting the accused with the offence. Therefore, the conviction and sentence imposed by the learned Sessions Judge is not sustainable in law. In support of their arguments, they relied on the judgment of the Hon’ble Apex Court in the case of Ashish Jain Vs. Makrand Singh and others, 2019 (3) SCC 770 . 7. Sri K. Anand, learned Asst. Public Prosecutor would submit that the evidence of the mediator i.e., P.W-10 is cogent and reliable regarding arrest of the accused and confession made by them before P.W-10. The evidence of P.W-10 and P.W-15 would establish that the fingerprints of the accused were found at the scene of offence and no explanation was offered by the accused as to how their finger prints are found at the scene of offence. The evidence of P.W-1 also corroborated the evidence of P.W-10 about the presence of the accused at the scene of offence. Therefore, the conviction and sentence imposed by the learned Sessions Judge does not warrant interference of this Court. 8. The point that arises for consideration is : “Whether the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt?” 9. POINT: It is to be noted that the prosecution mainly relied upon the evidence of P.W-1, P.W-10, P.W-12 in support of its case. There is no dispute about the fact that there is no direct evidence/eye witness available to prove the charge in the case. The prosecution case rested on circumstantial evidence only. 10. Therefore, we may have to see whether the chain of circumstances are complete and unbroken. The Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116 held that “the Court must keep in mind five golden principles or the panchsheel”, as held in para 153 of the judgment. “1. 10. Therefore, we may have to see whether the chain of circumstances are complete and unbroken. The Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, 1984 (4) SCC 116 held that “the Court must keep in mind five golden principles or the panchsheel”, as held in para 153 of the judgment. “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 11. In the case on hand, the prosecution relied upon two important circumstances to prove the charge in the case. One is extra judicial confession said to be made by the accused before P.W-10. Another is report of P.W-12 i.e., Inspector, Fingerprint Bureau, Eluru, covered by Exs.P-9 and P.10. 12. The Hon’ble Apex Court in the case of Sahadevanand another Vs. State of Tamil Nadu, 2012 (6) SCC 403 and Jagroop Singh Vs. State of Punjab, 2012 (11) SCC 768 on the evidentiary value of the extra judicial confession, held as under : “An extra judicial confession is a weak piece of evidence. The other circumstances from which the conclusion of guilt is to be drawn should be fully established before relying on the extra judicial confession. Therefore, the facts relating to last seen theory and statement made by accused U/s.27 of the Indian Evidence Act be established. Evidence, should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis, except that the accused is guilty. Those circumstances should be of a conclusive nature. Evidence, should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis, except that the accused is guilty. Those circumstances should be of a conclusive nature. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 13. P.W-10 in the cross-examination admitted that though the accused and himself belongs to the same village, he has no prior acquaintance with the accused. There are no specific reasons for the accused to come to him and confess the offence. Admittedly, P.W-10 participated in some part of the investigation, conducted earlier assisting the police at the time of inspecting the scene of offence and seizure of M.Os-1 to 8 available at the scene of offence. He did not record the confessional statements of A-1 to A-3.Ex. P-6 is the report presented by him to the Sub Inspector of Police, Iragavaram P.S. He did not give any reason as to why he did not record the statements of accused, when they made confession before him. 14. When coming to the evidence of P.W-12, Inspector of Finger Print Bureau, Eluru, he deposed that on 11.11.2012 on the request of P.W-15, he visited the scene of offence and collected chance finger prints available at the scene of offence as A, B, C, D and E. Out of them B, C, D and E are fit for comparison, and later, on 16.11.2012, he received fingerprints of accused supplied by P.W-15.He compared the same with chance fingerprints. They tallied as of A-1 and A-2. They were not tallied with that of A-3. 15. P.W-15 deposed that on 16.11.2012 he sent fingerprints of the accused to Fingerprint Bureau, Eluru for comparison. He did not depose about the manner and process adopted for collection of fingerprints after their arrest. He did not say that he collected fingerprints after their arrest. P.W-10 also did not depose that P.W-15 collected fingerprints in their presence, after arrest of the accused.Therefore, no evidence is forth coming that P.W-15 collected fingerprints or they were collected as per orders of the Magistrate. 16. The Hon’ble Apex Court in the case of Ashish Jain Vs. He did not say that he collected fingerprints after their arrest. P.W-10 also did not depose that P.W-15 collected fingerprints in their presence, after arrest of the accused.Therefore, no evidence is forth coming that P.W-15 collected fingerprints or they were collected as per orders of the Magistrate. 16. The Hon’ble Apex Court in the case of Ashish Jain Vs. Makrand Singh and others, held in para 38 as follows : “Police Officer is competent to take measurements of the accused, but to dispel doubts as to its bonafides and to rule out the fabrication of evidence, it is eminently desirable that they were taken before our under the order of a Magistrate. However, the aforesaid observations cannot be held to mean that this Court observed that under Section 4, police officers are not entitled to take fingerprints until the order is taken from a Magistrate. If certain suspicious circumstances do arise from a particular case relating to lifting of fingerprints, in order to dispel or ward off such suspicious circumstances, it would be in the interest of justice to get orders from the Magistrate.” 17. In the case on hand, no evidence is available on record about the manner and procedure adopted for collecting the fingerprints from the accused, after their arrest. In fact, nothing is available on record to show who collected fingerprints from the accused. 18. In those circumstances, we are of the considered opinion that the extra judicial confession and the report of P.W-12 are not sufficient to connect the accused with the charge, without any corroborating evidence. In the light of above discussion, we are of the opinion that there is no trustworthy and reliable material evidence on record to prove the charge, for the offence U/s.460 I.P.C. Accordingly, the point is answered. 19. In the result, the Criminal Appeal No.715/2016 and 1327/2017 are allowed. The conviction and sentence recorded by the learned IV Addl.District &Sessions Judge, West Godavari at Tanuku, vide judgment dated 27.06.2016 in S.C.163/2014 against theA-2 and A-3 for the offence U/s.460 I.P.C. is set aside. The accused No.2 and 3 are acquitted U/s.235(1) Cr.P.C. for the said offence. The fine amount, if any, paid by the appellants/A-2 and A-3, shall be refunded to them. 20. The accused No.2 and 3 are acquitted U/s.235(1) Cr.P.C. for the said offence. The fine amount, if any, paid by the appellants/A-2 and A-3, shall be refunded to them. 20. The appellants/A-2 and A-3 were released on bail as per order of this Court dated 28.07.2021 and 23.03.2022 respectively, in view of the judgment of this Court in the case of Batchu Ranga Rao Vs. State of Andhra Pradesh, 2016 (3) ALT (Crl.) 505 (DB) (AP). Hence, the appellants/A-2 and A-3 are directed to appear before the Superintendent, Central Prison, Rajamahendravaram, for completing the necessary legal formalities. Consequently, miscellaneous petitions pending, if any, in both the Criminal Appeals shall stand closed.