Kathi Venkanna and Oth Vs. the State of A.P., Rep. by Its Public Pr - Court Judgment

THE HON'BLE Sr.JUSTICE L.

NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL Crl.A.Nos.1244 of 2009 and batch 12-02-2014 Kathi Venkanna and others.Appellants The State of A.P., rep.

by its Public Prosecutor, High Court of A.P., Hyderabad.Respondent Counsel for appellants : Sr.A.

Prabhakar Rao Smt.A.Gayatri Reddy Counsel for respondent : The Public Prosecutor HEAD NOTE: ?.CASES REFERRED : ---- THE HON'BLE Sr.JUSTICE L.

NARASIMHA REDDY AND THE HON'BLE Sr.JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL Nos.1244 & 1847 of 2009 and 641 of 2010 COMMON JUDGMENT

: (Per LNR,,J.These three appeals arise out of the judgment, dated 05.10.2009, in S.C.No.38 of 2008 on the file of Special Judge for the Trial of Offences under SCs & STs (POA) Act - cum - VI Addl.

Metropolitan Sessions Judge, Secunderabad.

Accused Nos.1 to 10 were tried in that case for the offences punishable under Sections 364-A, 342, 387 r/w Section 511, 395, 506 Part II r/w Section 120-B and 34 of IPC and Section 27 of Indian Arms Act.

The trial Court acquitted accused Nos.4,5,6,9 and 10 of all the charges framed against them and convicted accused Nos.1,3,7 and 8 for the offence punishable under Section 364-A IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.200/- each, in default, to undergo simple imprisonment for two months each.

Accused No.2 was convicted for the offence punishable under Section 364-A IPC r/w Section 120-B IPC and similar punishment was imposed.

However, accused Nos.1,3,7 and 8 were found not guilty of the offences punishable under Sections 342,387 r/w Section 511, 395, 506 Part-II r/w Section 120-B IPC and accused No.2 was found not guilty of the offences punishable under Sections 342, 387 r/w Section 511, 395, 506 Part-II IPC and Section 27 of Indian Arms Act and, accordingly, they were acquitted.

The case of the prosecution is that P.W.1, Smt.V.Kiranmayee, submitted a complaint on 10.30 a.m.on 24.07.2007 in the Police Station, Gopalapuram, alleging that her husband (P.W.2) was missing, after he left the house in a car bearing No.AP10Z1041driven by their driver, by name, Mohan, (accused No.2).for dropping their children at Geethanjali School, near Sangeet Theatre, Secunderabad.

On the basis of that complaint, crime No.245 of 2007 was registered.

When the investigation was in progress, P.W.2 is said to have returned at 8.30 a.m.on the next day.

He was examined and, on the basis of the information furnished by him, further investigation was taken up.

P.W.2 stated before the police that after he dropped his children and came out of the school, an unknown person, aged about 30 yeaRs.wearing a red shirt, pushed him into a white coloured Indica car by pointing a weapon and four persons, who were already in the car, had dragged him inside the car and that he was taken towards Mettuguda.

He has also stated that one among them had tied a cloth on his eyes and he was threatened to remain quiet.

Demand is said to have been made for a sum of Rs.20 lakhs, stated to be for conducting a meeting of an extremist organization, and that he was required to inform the same to his wife (P.W.1) immediately.

After travelling for about three houRs.the cloth tied on his eyes is said to have been removed, and he noticed about 20 to 30 persons inside a room.

The abductors are said to have called each other as Venkanna, Ramulu and Prabhakar and they made continuous demands for payment of money.

On finding that he has no money or there is no possibility of payment of the ransom, all the abductors are said to have taken him about four kilometers inside the forest, and there also, they have threatened him.

He further stated that on seeing the news that were being flashed in a T.V., the abductors have dropped him at a nearby railway station, and after boarding a train, he reached Secunderabad.

The police is said to have apprehended accused No.2 at the railway station, Secunderabad, and recovered a mobile from him, and on the basis of the confession made by him, the other accused are said to have been apprehended.

The trial Court convicted the appellants herein, while acquitting the other accused in the case.

Sr.A.

Prabhakar Rao and Smt.A.Gayatri Reddy, learned counsel for the appellants, submit that the conviction of the appellants was based upon the statement of P.W.2, and that there are any number of contradictions in it.

They further submit that there was absolutely no basis for convicting the appellants and imposing such a serious punishment upon them.

Learned Public Prosecutor, on the other hand, submits that the investigation was taken up, on the basis of the complaint submitted by P.W.1, and the prosecution has proved the case against the appellants herein.

She further submits that in matters of this nature, it is difficult to find any eyewitnesses, and all the same, not only the appellants were identified by P.W.2, but also the other circumstances have been proved beyond any pale of doubt.

The starting point for the case against all the accused is the submission of a complaint (Ex.P.1) by P.W.1, on 24.07.2007, at 10.30 a.m.She alleged that her husband, P.W.2, was missing from 8.30 a.m.onwards, after he left the house in a car to drop their children at Geetanjali school.

She suspected the role of the house owner, Mr.K.Srinivas.

P.W.9, the Inspector of Police, Gopalapuram, stated in his chief-examination that L.W.13, the S.I.of Police, Gopalapuram (not examined) received the complaint.

He further stated that a police team was sent to apprehend K.

Srinivas, the person named in the F.I.R., and on verification, they found that he is not responsible.

P.W.9 has also stated that P.W.1 came to the police station at 7.00 p.m.and he recorded her statement.

However, in the cross-examination, he stated that P.W.1 was not available, when he took up the investigation.

He admitted that no case diary was maintained.

The suspicion against accused Nos.1 and 2 is said to have arisen, on the recording of confessional statement of accused No.2, the driver of P.Ws.1 and 2.

The manner, in which the other accused are apprehended, would be dealt with at a later stage.

However, even before any progress worth its name has taken place in the investigation, P.W.1 is said to have received a phone call in the mid- night from her husband that he is returning by a train, and obviously, on the information furnished by her, a police team was posted at Moulali railway station.

There are different versions about the alleged travel of P.W.2.

According to P.W.10, the police party had a photograph of P.W.2 and when they were checking a train at Moulali railway station, they found a person resembling the photograph, sitting with fear in the corner of a compartment.

According to them, the train was 'Kakatiya Fast Passenger'.

The exact time of travel of the train was not mentioned.

P.W.9, however, had a different version.

P.W.2 is said to have been seen in Moulali railway station in the ".push pull train".In the cross-examination, he admitted that the push pull train runs between Secunderabad and Warangal, and Kesamudram, where P.W.2 is said to have boarded the train, is one of three or four important stations beyond Warangal.

In his deposition, P.W.2 did not name the train.

He stated that he boarded the train at Kesamudram railway station, on finding that it is proceeding towards Secunderabad.

While it is the version of P.W.2 that he was taken by the police from Moulali railway station, straight away to Gopalapuram police station, P.W.1 stated that her husband came to their house at 8.00 a.m., and after taking bath, he went to the police at 10.30 a.m.This contradiction is sufficient to doubt the versions of P.Ws.1 and 2.

P.W.1 has also admitted that it was not a usual thing for her husband to drop the children at the school and come back to the house.

She did not explain as to how she expected her husband to come back within half an hour, and where was the necessity to accompany the children, when the car was being driven by the driver.

There are several unexplained aspects in the entire prosecution case.

A.2 is the principal source of information for proceeding against the other accused.

Though P.Ws.1 and 2 stated that the driving licence of accused No.2 was kept with them at the time of employing him, it was not produced before the Court.

P.W.9, the Investigating Officer, who is said to have arrested all the accused, faltered in the cross-examination, on several aspects.

When it was suggested to him that the group photographs of all the accused were printed in a daily newspaper after arresting them, he feigned ignorance.

He admitted that though Exs.P.8 to P.13, the confessional statements and seizure reports, were recorded by him, the names of the scribes are not mentioned in them.

It was also suggested that the manuscript panchanama of accused No.2 was concealed, and the one prepared through computer was filed.

It is not as if P.W.2 is an illiterate person for not being able to know the train, in which, he travelled.

It was not even mentioned that he purchased a ticket for travelling in the train.

The trial Court was mostly guided by the result of the identification parade.

Once it is not denied that the photographs of all the accused were published in a newspaper, the identification parade virtually loses its significance.

In the charge sheet, it was stated that P.W.2 reached his house at about 8.30 a.m.on 25.07.2007.

This is contrary to what P.Ws.1 and 9 stated in their evidence.

According to P.W.9, they reached Moulali railway station at 8.30 a.m.The learned trial Judge proceeded on the assumption that P.W.2 was traced at Moulali railway station, and he was taken in the same train up to Secunderabad.

This was not spoken to by anyone.

Though P.W.10 stated that they have taken the help and protection of GRP and railway protection force, none from those organizations was examined.

The particulars of the travel given by P.W.2 both in his chief-examination and cross-examination are as under: ".Chief-examination: ".I went into the railway station.

Train came and I enquired and boarded in that train.

When I was coming towards Secunderabad, I noticed that the station was Kesamudram, when the train was leaving from that station.".

Cross-examination: ".I had no idea that the coach in which I traveled is general or reserved.

I did not enquire the name of the train or the destination of the train, after getting down from the train.

I do not know how Gopalapuram police got information to pick up me from Moulali station.".

Such contradictions are galore in the record.

We are not at all satisfied that the prosecution made out a case against the appellants herein.

In the result, all the Criminal Appeals are allowed, and the conviction and sentence ordered against the appellants/accused Nos.1,2,3,7 and 8, in S.C.No.38 of 2008 on the file of Special Judge for the Trial of Offences under SCs & STs (POA)-cum-VI Addl.

Metropolitan Sessions Judge, Secunderabad, through judgment dated 05.10.2009, are set aside.

The appellants shall be set at liberty forthwith, unless their detention is needed, with reference to any other crime.

The fine amount, if any, paid by the appellants shall be refunded to them.

______________________ L.

NARASIMHA REDDY, J.

________________ M.S.K.JAISWAL, J.

12th February, 2014