THE HONBLE SRI JUSTICE L. NARASIMHA REDDY and THE HONBLE SRI JUSTICE M.S.K.JAISWAL Crl.Appeal No.274 of 2010 and batch 10-04-2014 Gunja Yesu (A.2) and others Appellant-Accused State of A.P., rep. by its P.P.,High Court of A.P., Hyderabad ...Respondent Counsel for the Appellant: Smt.Gayatri Reddy Counsel for respondent:Public Prosecutor HEAD NOTE: ?.CASES REFERRED : . HON'BLE SRI JUSTICE L. NARASIMHA REDDY AND HON'BLE SRI JUSTICE M.S.K.JAISWAL Criminal Appeals No.274 and 364 of 2010 10th April, 2014 Criminal Appeals No.274 and 364 of 2010 COMMON JUDGMENT
: (Per Honble Sri Justice M.S.K.Jaiswal) Rudrakshapally, a village situated at a distance of 10 KMs., towards east of Sathupally, Khammam District, was witness to a horrendous evening on 21-12-2005. When the villagers just retired to their homes, the heartrending incident committed by persons of maniac manifestations and beyond human comprehension of a diabolical nature, was unleashed. The ghastly incident, which spanned just over few minutes, left behind trail of six deaths and injuries to as many as nine persons. The perpetrators of this ghastly crime are alleged to be the three appellants in the company of a heartless and a docier criminal viz.,Thatiparthi Rama Rao, who was originally arraigned as A.1, but the case against whom was not committed since he remained absconding, during trial.
2. Through its Judgment, dated 15.12.2009 in S.C.No.199 of 2008, the III-Additional Sessions Judge (FTC), Khammam, found the appellants guilty of committing the crime punishable under Sections 302 and 307 read with 34 of I.P.C., and sentenced them as under:- i) A.2 to A.4 to undergo imprisonment for life and pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence under Section 302 of I.P.C.; ii) A.2 to A.4 to undergo rigorous imprisonment for ten years each and pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence under Section 307 of I.P.C.; and iii) A.2 and A.3 were further sentenced to undergo rigorous imprisonment for ten years each and pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence under Section 307 read with 34 of I.P.C. All the sentences were directed to run concurrently.
3. Against that Judgment, the appellants/A2, A3 and A4 preferred these appeals. The case arises out of one of the most gruesome and deadliest attack by a gang of robbers. It was lead by the notorious robber in the State, A.1-Thatiparthi Rama Rao. The most disturbing feature is that the attack was resorted to as a frightening and revengeful measure. Innocent persons including those from Scheduled Tribes, were brutally killed or were injured. The persons who were killed are:
1. Angothu Laxmi (D.1); 2) Dharavath Masthan (D.2); 3) Nunavath Venkateswarlu (D.3); 4) Oggu Prasad Reddy (D.4); 5) Islavath Raju (D.5); and 6) Oggu Krishna Reddy (D.6). The injured persons are:
1. Oggu Damayanthi (PW.7); 2) Oggu Vijayalaxmi (PW.9); 3) Nandyala Venkat Reddy (PW.11); 4) Nunavath Rajesh (PW.12); 5) Badavath Somla (PW.13); 6) Kunta Rambabu (PW.14); 7) Mallela Yesupadam (PW.16); 8) Banothu Vatchya (LW.17 since died; and 9) Nunavath Lalu (L.W.18).
4. The case of the prosecution, as could be culled out from the charge-sheet, is as under:- A.1 is a professional robber and committed number of offences in the Districts of Khamma, Krishna, West Godavari and Guntur and he was convicted in as many as 15 cases. OVDC No.375/KMM of Khammam District was opened upon him maintained by Sathupalli P.S. A.2 to A.4 are said to be his associates. A.1 had a brother, by name Nageswara Rao, who was also a rowdy element and an ex-convict, involved in number of property offences and was convicted in house-breaking and robbery cases. He used to threaten the villagers and create panic in the village of Rudrakshapalli. On 04-09-2005, Nageswara Rao picked up a quarrel with Oggu Prasad Reddy (D.4) and others alleging that they occupied his land. D.4 and others are said to have killed. A case in Cr.No.155 of 2005 under Sections 147, 148, 302 and 506 (2) read with 34 I.P.C., of P.S.Sathupally was registered. In view of the murder of his brother Nageswara Rao, A.1 bore grudge against the villagers of Rudrakshapalli. He hatched a plan to take revenge by killing D.4 and his followers. On 21-12-2005, at about 07.00 p.m., A.1, with his three associates A.2, A.3 and A.4, went to Rudrakshapalli village, armed with bill hooks and axes. Even while entering the village, they attacked Nandyala Venkat Reddy (PW.11) and Nunavath Rajesh (PW.12), who was sitting on the culvert No.6/1, situated at Primary School and hacked them. P.Ws.11 and 12 received bleeding injuries and out of fear, they ran towards the village. All the accused chased them. On way, they have seen D.2 coming in the opposite direction, and immediately, the accused hacked him indiscriminately, due to which D.2 died on the spot. Thereafter, the accused went to the house of D.4 and at that time, D.1 was also there. The accused intruded into the house of D.4 and hacked him indiscriminately. When D.1 screamed loudly, the accused hacked her, resulting in her instantaneous death. On hearing the cries, the father of D.4, mother, brother and others came out. The accused hacked the father of D.4, who is D.6, resulting in his death. D.4 also succumbed to the injuries. Badavath Somla (PW.13) tried to enter the house and he was also attacked with an axe, and he sustained injuries. Thereafter, the accused left the house of D.4 and on way, they came across Nunavath Lalu (LW.18), and when he tried to escape, the accused chased him and hacked him indiscriminately, causing severe injuries. Thereafter, the accused found D.3 near the house of one Bala Babu, and they hacked D.3 indiscriminately, causing his instantaneous death. From there, the accused went to the house of Kunta Rambabu (PW.14) and Banothu Vatchya (LW.17) and they attacked them and caused injuries. Thereafter, the accused noticed Yesupadam (PW.16) in the STD Booth and suspecting that he may be informing the police, the accused dragged him out and hacked him indiscriminately and caused severe bleeding injuries. Then, they proceeded towards Nacharam and on way, they noticed Islavath Raju (D.5) and when D.5 tried to escape, the accused chased him and hacked him indiscriminately, resulting in his death. On the same day at about 10.00 p.m., Meelu Veera Swamy, the Village Secretary (PW.1) gave complaint to the S.I. of Police (PW.36). The case was registered in Cr.No.228 of 2005 under Sections 324, 326, 307 and 302 read with 34 of I.P.C., and the F.I.R. was issued. The investigation was taken up by the Inspector of Police (PW.38). In the presence of the panch witnesses, the scene of offence panchanamas were conducted. Inquest over the dead bodies of the deceased were held, and photographs were taken. Thereafter, the dead bodies were sent to post-mortem examination. The injured witnesses were sent for treatment. On 27-12-2005, the C.I. of Police, Thiruvur (PW.35), arrested A.1 to A.3 in connection with Cr.No.87 of 2005 under Section 393 of I.P.C., of P.S.Vissannapeta of Krishna District. During the course of interrogation, the accused are said to have confessed of committing the crime in Rudrakshapalli village. On intimation being given, the custody of A.1 to A.3 was obtained from the Court and during the course of interrogation, the accused are said to have confessed having committed the crime and led to the recovery of the incriminating material objects. After completing the investigation, the charge-sheet was filed on the file of Judicial Magistrate of First Class, Sathupalli. The same was registered as P.R.C.No.17 of 2007. Since A.1 was absconding, the case against him was separated and the case against A.2, A.3 and A.4 was committed to the Court of Sessions, Khammam District. It was made over to III-Additional Sessions Judge (FTC), Khammam. Charges under Sections 302 and 307 read with 34 of I.P.C., were framed. The accused pleaded not guilty. PWs.1 to 38 were examined, Exs.P.1 to P.69 were filed and M.Os. 1 to 26 were taken on record. Through the Judgment, dated 15-12-2009, the accused have been found guilty and sentenced, as stated above. Hence, these appeals.
5. The contention of Smt.Gayatri Reddy, learned Counsel for the accused is that the evidence on record does not establish that the accused committed the crime, and that the appellants-A.2 to A.4 have no motive, whatsoever for that. She contends that the identification of the Accused by the villagers is based on the wide publicity given about them, through print and electronic media. She further submits that the trial Court failed to appreciate the evidence on record and it ought to have seen that A.2 to A.4 did not accompany A.1 on the date of the incident, and that the Judgment under appeal cannot be sustained in law or on facts.
6. Learned Additional Public Prosecutor, on the other hand, submits that the prosecution adduced voluminous oral and documentary evidence, which clearly establishes that the accused committed the most barbaric act of killing six persons and causing injuries to as many as nine people. She contends that the evidence of the injured witnesses and the eye-witnesses is consistent and cogent, and that the trial Court has taken into consideration, all the facts and circumstances and accepted the evidence of the prosecution witnesses for holding the accused guilty. She further submits that the findings are based on proper appreciation of the evidence on record and the Judgment under appeal warrants no interference.
7. The point for consideration is as to whether the prosecution proved its case against the accused beyond reasonable doubt, so as to sustain the conviction and sentence, or whether it needs to be modified, set aside or varied?.
8. POINT:- Narration of events in the preceding paragraphs undoubtedly leaves one, perplexed and it shocks the conscience of any person, who regards the human life to be the most precious. In less than half-an-hour, six persons lost their lives, and seven persons, though violently attacked, were fortunate to come out of the jaws of death. This, according to the prosecution, is the price paid by the villagers for causing the death of a notorious criminal by name Nageswar Rao, who happened to be the brother of A.1, another hardcore criminal.
9. The factum of six lives being lost and nine persons having sustained injuries is not disputed and the medical evidence on record proved the said fact. The Doctor (PW.28) conducted autopsy over the dead bodies of D.1, D.2 and D.3. He issued post- mortem reports, which are Exs.P.36, P.37 and P.38. The said Doctor also treated P.Ws.7, 9, 11, 12 and 13 and issued wound certificates Exs.P.39, P.40, P.41, P.42 and P.43.
10. Another Doctor (PW.29) conducted autopsy over the dead bodies of D.4 and D.5 and issued post-mortem reports, which are Exs.P.44 and P.45. The said Doctor also treated P.W.16, P.W.14, Banoth Vatchya (L.W.17) and Nunavath Lalu (LW.18) and issued wound certificates Exs.P.46, P.47, P.48 and P.49.
11. P.W.30 is another Doctor who initially treated P.Ws.7 and 9. P.W.31 is the Medical Officer, who conducted autopsy over the dead body of D.6 and issued post-mortem report Ex.P.50.
12. Exs.P.3, P.5, P.7, P.14, P.15 are the inquest panchanamas conducted by the Investigating Officer in the presence of the panch witnesses. Exs.P.9, P.10, P.11, P.12 and P.13 are the scene of offence panchanamas, which were also prepared in the presence of the panch witnesses.
13. It may be stated here that A.1 is not a stranger to the eye- witnesses since he was a resident of the same village and as a matter of fact, the motive for the crime is said to be a land dispute between his family and the family of D.4, which culminated in the murder of the brother of A.1 allegedly at the hands of D.4 and other villagers. A.2 to A.4 are the residents of Putrelu village and the witnesses claim that they have seen them in the company of A.1, particularly at the time of the 11th day ceremony of the brother of A.1. In addition to the death of six persons, there are as many as nine injured, out of them 7 are examined. The other injured Banothu Vatchya (L.W.17) is reported to have died subsequently and another injured Nunavath Lalu (L.W.18) has not been examined. The injured persons are PWs.7, 9, 11, 12, 13, 14 and 16.
14. PW.7 is not only an injured witness but also witness to a gory incident of the death of her husband D.6 and son D.4. She deposed that on the date of the incident, when they were in the house, A.1 to A.4, armed with knives, attacked them and hacked on her left forehand. She also deposed that the accused persons hacked her husband on his right abdomen, left hand, and they also hacked her daughter-in-law (PW.9) on her right shoulder. It is further in her evidence that when D.1 raised cries, she was hacked by the accused, which resulted in her death. PW.7 stated that at the time of incident, A.1 to A.3 entered the house and A.4 was standing at the gate armed with an axe.
15. PW.9 is the wife of D.4 and daughter-in-law of D.6 and PW.7. She deposed that when they were in the house, A.1 to A.4 came there, that A.4 was standing at the gate armed with an axe, that A.1 to A.3 stabbed her husband D.4, with knife, and when she intervened, the accused caused injuries to her and PW.7. She claims to have received injuries on right shoulder, head and index finger. Hearing their cries, when Badavath Somla (PW.13) came, A.4 attacked him. She further stated that A.1 to A.3 have also attacked Nunavath Lalu (L.W.18) and also Kunta Rambabu (PW.14) in front of the milk center. She claims to have come to know about the assault by the accused on the other injured witnesses, and the deceased, but she has not witnessed the same.
16. PW.11 deposed that on 21-12-2005, when himself and PW.12 were sitting on the culvert near the High School, A.1 to A.4 came there with hunting sickles, axes and knives and threatened them. He further deposed that A.1 stabbed on his hand and above wrist and A.2 attacked PW.12 on his left hand wrist. He further deposed that at that time, D.2 came on his cycle and on seeing him, A.2 and A.3 hacked him to death. He further claims to have come to know about the death of other persons and the injuries to other witnesses.
17. PW.12 deposed that on the date of the incident, when she was sitting along with PW.11, A.1 to A.4 came there and attacked them with weapons, causing injuries on the left hand wrist, they killed D.2 and thereafter, they proceeded towards the house of D.4. He further claims to have come to know about the attack on the other deceased and the injured persons.
18. The other injured eye-witness PW.13 deposed that on the date of the incident, when he was at his house, he heard galata from the house of D.4 and D.6, and when he went there, he noticed A.4 standing at the gate, armed with hunting sickle, and he was attacked on his back, right neck, forehead and face, resulting in loss of teeth. He further deposed that A.1, A.2 and A.3 came out of the house after killing D.4 and D.6.
19. PW.14 deposed that on the date of the incident, when he was in front of the milk collection centre, along with Vatchya (L.W.17), he has seen A.1 to A.4 attacking D.3 in front of the house of Bala Babu. He further deposed that when himself and L.W.17 tried to interfere, the accused attacked them, and he sustained injuries on left face, left hand and left hand palm. He further deposed that A.2 caused injuries to Vatchya (L.W.17) and at that time, A.3 and A.4 were also present, and subsequently, he came to know about the attack on other deceased persons and injured witnesses.
20. PW.16 is another injured eye-witness. He deposed that at the time of the incident, he was in the STD booth and was trying to speak to a mechanic in order to get his auto repaired. He stated that the accused came there, questioned him as to whom he is contacting, they dragged him out of the STD booth and attacked on right shoulder, head, back and abdomen.
21. All the injured witnesses were extensively cross-examined. It is suggested to all of them that it is A.1 who has committed the crime but not A.2 to A.4. The cross-examination revealed an admission on the part of the accused that the incident was a sequel to the murder of the brother of A.1. The testimony of the injured witnesses is corroborated by the medical evidence on record. It is further noticed from the evidence of the injured witnesses that they are not the members of a particular family nor they belong to a particular group. The accused are said to have attacked them when they have come in front of them. Apparently, the attack was not aimed at any particular person, but the accused have ran amuck with vengeance against the villagers on the ground that they are responsible for the death of brother of A.1. The incident in question took place just three months after the murder of the brother of A.1. The evidence on record shows that the accused have lost all their sense of discretion and acted in a most beastly manner and caused the death of six persons and injuries to the nine witnesses.
22. In addition to the injured prosecution witnesses, there are other witnesses, some of them, eye-witnesses and they are examined as PWs.3, 5, 8, 15, 17, 18 and 22.
23. PW.3 is the wife of D.2. She deposed that on the date of the incident, when she returned to her village, she found group of persons. She was informed by the villagers that her husband has been killed by A.1 and his followers. Immediately, she went to the spot and found her husband lying dead. She also claims to have come to know about the death of other persons and injuries to others.
24. PW.5 is the brother of D.4 and son of D.6. He deposed that on the date of the incident when he was in the house, the accused trespassed into the verandah, A.4 stabbed D.4 with a knife and when PWs.7 and 9 interfered, A.1 attacked PWs.7 and 9, and at that time A.4 was watching in front of the gate. The witnesses further stated that when the accused were attacking D.4 and PWs.7 and 9, he raised cries, and on hearing the same, neighbouring residents came there. He further deposed that the accused have also killed D.1.
25. PW.8 is the person who was manning a STD booth. He deposed that on the date of the incident, PW.16 was calling from his STD booth and at that time, A.1 to A.4 came there, dragged out PW.16 and caused injuries on his forehead, stomach, back and left hand palm, after questioning PW.16 as to whom he is trying to contact. He further claims that he came to know about the attack on the deceased and other injured persons but he has not witnessed the same.
26. The other witness PW.15 deposed that on the date of the incident, he was at the milk centre and he has seen A.1 to A.4 attacking PW.14 and Vatchya (L.W.17) at the milk centre. He further claims to have seen the accused dragging and beating PW.16 at the STD booth. He deposed that he came to know about the killing of the other deceased persons and the injured at the hands of the accused.
27. PW.17 deposed that when he was sitting in the varandah of his house, he has seen A.1 to A.4 coming towards him, chasing and attacking the villagers. He is said to have seen A.1 to A.4 attacking PW.1 in front of the house and killing D.4 and D.6. He further deposed that when they were trying to go towards the house of D.4 and D.6, the accused stabbed PW.5, who was going along with him, and out of fear, has hidden himself. He is said to have seen the accused attacking PWs.17 and 13 near the milk centre, and PW.16, at the Telephone booth and the killing of D-5.
28. PW.18 is another eye-witness, who, at the relevant time was a girl, aged about 15 years. She is the niece of D.3. She deposed that on the date of the incident, she heard cries from the house of D.3, and when herself and others came out, she has seen A.1 to A.4 coming out of the house of D.4 armed with knives and axes. She further deposed that the accused attacked PW.13 and caused injuries. She further deposed that when herself and her grandfather Lalu (L.W.18) were running towards their house, the accused beat Lalu (L.W.18), due to which he fell down. She further claims to have come to know about the death of other persons and injuries to the villagers.
29. PW.22 is another eye-witness and he deposed that at the time of the incident, he was in his house and has seen D.5 proceeding on his cycle in front of his house. At that time, A.1 to A.3 and others were coming in the opposite direction and on seeing them, the accused hacked D.5 on his neck, and that D.5 died in the hospital, while undergoing treatment.
30. To all the above eye-witnesses, some of whom are independent and some are the relations of the deceased, suggestions were made to the extent that A.2 to A.4 have participated in the crime, along with A.1. These witnesses were elaborately cross-examined but nothing objectionable was elicited from them, for disbelieving their evidence. The evidence of the injured witnesses and eye-witnesses is cogent and consistent except for minor contradictions, which are marked as Exs.D.1 to D.7. The witnesses remained unshaken and have categorically asserted that they have seen A.1 to A.4 indulging in the acts of manslaughter.
31. Learned Counsel for the accused submits that the identification of the accused, made by the prosecution witnesses cannot be believed for the reason that they were not known to the witnesses prior to the incident and that their Test Identification Parade conducted by PW.32-the Judicial Magistrate of First Class, Rajahmundry, and PW.37 the Judicial Magistrate of First Class, Khammam, subsequent to the arrest of the accused and vide publicity was given about to them, in print and electronic media.
32. The evidence on record, however, shows that A.2 to A.4 are not strangers to the villagers of Rudrakshapalli village. It is said that they were the cohorts of A.1 and even participated in the obsequies of the brother of A.1, who died three months prior to the incident. That apart, the assailants went round the village for about half-an-hour unleashing terror and bloodshed and the villagers had ample opportunity of seeing them. The witnesses who have participated in the Test Identification Parade conducted by PW.37 are PWs.5, 7, 8, 9, 11, 12, 13, 14,22 and 17 and they have identified A.4. Ex.P.6 is the proceedings of the Test Identification Parade. The Test Identification Parade of the other accused was conducted in Rajahmundry Central Prison by PW.32. He stated that he conducted the Test Identification Parade of A.1 to A.3, and that PWs.5, 7, 8, 9, 11 to 17 have participated therein. According to him, PW.5 identified A.1; PWs.7 and 8 identified A.1; PW.11 identified A.1 to A.3; and PWs.12 to 17 have identified A.1. He was also stated that PWs.5, 7, 8, 9, 11, 12 and 16 correctly identified A.3, but they failed to identify A.2.
33. It has already been observed that the accused are not strangers to the prosecution witnesses and the other villagers. For all practical purposes, the parade was superfluous. The identification made by the prosecution witnesses cannot be disbelieved and no valid reasons are elicited from the prosecution witnesses to disbelieve them. That apart, all the prosecution witnesses are the persons, who have no grudge or axe to grind against A.2 to A.4. Their evidence is consistent and has a ring of truthfulness. There are no exaggerations in their evidence.
34. The trial Court has analysed the entire evidence minutely, and for valid and cogent reasons, accepted the same and delivered the verdict of guilt against the accused. We have perused the entire evidence on record and we see no reason to disbelieve the evidence of the prosecution witnesses. It inspires the confidence of the Court and accordingly we hold that the prosecution proved its case, against the accused beyond reasonable doubt and their conviction cannot be disturbed. The point is accordingly answered.
35. We, however, noticed from the impugned Judgment that the sentences that are imposed against the accused insofar as the offence punishable under Section 307 of I.P.C. is not proper. The trial Court has sentenced A.2 to A.4 to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence under Section 302 of I.P.C. They were also charged with an offence punishable under Section 307 of I.P.C. They have been found guilty of the said charge and each one of them sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence punishable under Section 307 of I.P.C. the same accused are once again sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for six months for the offence punishable under Section 307 read with 34 of I.P.C. Once the accused have been sentenced directly under Section 307 of I.P.C., they cannot once again be sentenced for the offence under Section 307 read with 34 of I.P.C. Subject to this modification, the appeals are dismissed.
36. When examined under Section 313 Cr.P.C., the accused denied any acquaintance with A.1. A.2 contended that he is a labourer. He belongs to Putrela village and a muta coolie. He stated that A.1 along with his wife stayed in his house for three months. Thereafter Rama Rao (A.1) left the village and he do not know about him. A.3 stated that he is an auto driver and he do not know Rama Rao (A.1). A.4 contended that he is working as a lorry cleaner at Putrela village in Krishna District. He further stated that police apprehended him and stated that he is involved in housebreaking case near Maramma temple. A.4 further stated that he knew Rama Rao (A.1), who lived in the village Putrela for some days and went away. No defence is produced. Neither the trial Court was convinced, nor we are impressed by the plea of the accused.
37. In the result, the Criminal Appeals are dismissed confirming the conviction and sentence of the Accused 2 to 4 of committing offences punishable under Sections 302 and 307 of I.P.C. However, separate conviction and sentence for the offence punishable under Section 307 read with 34 of I.P.C. imposed against A.2 to A.4 are set aside. The fine amount, if any, paid under this head shall be returned to the appellants/A.2 and A.3 for the offence punishable under Sections 302 and 307 IPC. The sentences, however, shall run concurrently, and the accused are also entitled to the benefit of set-off under Section 428 of Cr.P.C. __________________ L.Narasimha Reddy,J.
_______________ M.S.K. Jaiswal,J.
Dt.10.04.2014