MAGAM VENKATESWERLU Vs. STATE OF A P

JUDGEMENT

(1.) Appellants/A-1 to A-3 aggrieved by the Judgment in S.C.No.386/96 dated 24-8-1998 on the file of Additional Sessions Judge, Khammam had preferred the present Criminal Appeal. The learned Judge on appreciation of evidence of PW-1 to PW-13 and Exs.P-1 to P-14 and Exs.D-1 and M.Os.1 to 14 found A-1 to A-3 guilty of offence under Section 398 r/w. Section 34 and Section 304 Part-I r/w. Section 34 I.P.C. and sentenced them to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.500/- each in default to suffer Simple Imprisonment for one month and further sentenced them to undergo Rigorous Imprisonment for eight years and to pay a fine of Rs.500/- each in default to suffer Simple Imprisonment for one month for the offence under Section 398 r/w. Section 34 I.P.C. and also Section 304 Part I r/w. Section 34 I.P.C. respectively and the aforesaid sentences were directed to run concurrently.

(2.) The case of the prosecution is that the complainant G. Muthaiah i.e., PW-11 and the deceased were working as Cleaner and Driver of the lorry bearing No. AP 16 T 3329 of Chennupati Lorry Transport, Vijayawada and they were residents of Vijayawada and A-1 and A-3 are residents of Thummurukota, Rentachintala Mandal, Guntur District and A-2 is a resident of Kocherla, Vinukonda Mandal, Guntur District. It is also the case of the prosecution that the deceased Bhakskar Rao had been to Laxminagar of Dummugudem Mandal and on 8-12-1993 at about 2000 hours the deceased Bhaskar Rao along with the Cleaner Gundu Muthaiah started from Laxminagar in the aforesaid lorry with a load of paddy belonging to Karelli Anjaneyulu (LW-6) and two others bound to Khammam. On the way when they reached Paloncha they slept at Chunnupati Lorry Transport office and asked the watchman to wake them up at 0230 hours on the subsequent day and he woke up Bhaskar Rao, the deceased, and Muthaiah-PW-11 and they started from Paloncha on 9-12-1993 at about 0315 hours with the said lorry and when they reached Kothagudem three strangers/accused boarded their lorry on the guise of proceeding to Khammam and offered Rs.10/- each as fare to Khammam and they sat in the cabin. It is also the case of the prosecution that by the conversation among the accused the complainant/PW-11 came to understand that the accused are Venkateswarlu, Kotaiah and Saidulu. The deceased along with PW-11 and the accused started from Kothagudem at about 0410 hours and at about 0520 hours they reached near Vinobhanagar on Kothagudem-Khammam road. Then the accused brandished knives and threatened the lorry driver, the deceased, to extract money from him anticipating that the deceased would be having money which was collected due to the transport of consignment in the lorry. The deceased did not yield to the threats of the accused. One of the accused stabbed the deceased on his right chest and right cheek with intention to extract money from him and the deceased was adamant and continued his driving and the other two accused also stabbed the deceased on his back below the neck causing fatal bleeding injuries. Blood was oozing out from the stab injuries and the condition of the deceased deteriorated and ultimately he could not control the lorry and the lorry ran towards the Southern side of the B.T. Road and it ran into the barren field of Yellanki Chinna Abbaiah and fell on its right side. The deceased came out from the lorry cabin and died due to profused bleeding due to stab injuries inflicted by the accused. One of the accused was entangled in the lorry cabin and he was extracted by the other two accused and they went away towards the fields. While they were fleeing away Chowdam Yelagondaiah and Gundepinni Muthaiah noticed them. One of the accused received injuries by stabbing in the incident. On the complaint of the complainant PW-11 on 9-12-1993 at 0830 hours, Crime No.103/93 of Julurpad Police Station was registered and after completing investigation and receipt of Post Mortem Examination report and Forensic Science Laboratory report the Inspector of Police, Kothagudem filed the charge sheet. In view of the abscondance of A-1 the case against A-1 was separated and however subsequent thereto both the P.R.Cs. were committed to the Court of Session which were numbered as S.C.Nos.389 and 391 of 1996 and the learned Sessions Judge made over the same to Additional Sessions Judge, Khammam and accordingly the learned Additional Sessions Judge after recording evidence convicted and sentenced the accused as specified supra.

(3.) Sri Bali Reddy, the learned Senior Counsel representing the appellants/accused would submit that PW-11, the sole eye witness was declared hostile and Ex.P-7 was disowned and in view of the same, the very version of the prosecution cannot be believed and the evidence of PW-8 cannot improve the episode of the prosecution in any way in the light of the evidence of PW-11. The learned Counsel also would submit that even on a comparison of the signature in Ex.P-7 with the signature in the deposition of PW-11, it is clear that the same are not one and the same and there is great suspicion relating to the fact whether the complainant had made the complaint at all. The learned Counsel also had drawn the attention of this Court to the time gap and would contend that this case was manipulated as against the appellants/accused and they were falsely implicated. The learned Counsel also would contend that even in the light of the evidence of PW-2 and PW-4 three persons were brought by the police on the same day to the accident spot and in the light of the same, the version of the prosecution that the arrest was made subsequent thereto cannot be believed. The learned Counsel also had commenced about the identification parade and pointed out to the relevant aspects in the cross-examination of PW-7. The learned Counsel would contend that statements were alleged to have been recorded by PW-7 in the course of test identification proceedings and they may not as such amount to confessions. The said statements are definitely incriminating in nature suggestive of the presence of the accused at the spot on the fateful day and no precautions had been taken by the learned Magistrate as per Law before proceeding to record such statements during the course of test identification proceedings. The learned Counsel also would point out that PW-2 and PW-4 were not declared hostile. The learned Counsel also would point out that relying upon the events on the ground of res gestae and also invoking Section 29 of the Indian Evidence Act 1872 and placing reliance on the alleged statements of the accused said to have been made to PW-7 in the course of test identification proceedings and recording conviction on the strength of such evidence, definitely is unsustainable in the light of several inherent improbabilities in the prosecution version especially in the light of the fact that PW-11 himself was declared hostile and as a matter of statement in Ex.P-7 PW-11 had specifically disowned the same. The learned Senior Counsel also had drawn the attention of this Court to medical evidence and also Exs.P-2 to P-4, the recovery of knives and would comment that in view of the facts and circumstances the appellants/accused definitely are entitled to an order of acquittal since there is no legally acceptable evidence to connect these accused with the offences with which they had been charged with.