THE HONBLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HONBLE Sr.JUSTICE M.S.K.JAISWAL Criminal Appeal No.450 of 2010 24-04-2014 K.Venkata Rami Reddy and otheRs.appellants.

The State of A.P...Respondent Counsel for appellants:Sr.T.Bali Reddy Counsel for Respondent : Additional Public Prosecutor.

HEAD NOTE: ?.Cases referred THE HONBLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HONBLE Sr.JUSTICE M.S.K.JAISWAL Criminal Appeal No.450 of 2010

JUDGMENT

: (Per the Honble Sr.Justice L.Narasimha Reddy) A.1 to A.5 were put to trial in S.C.No.350 of 2008 on the file of the III Additional Sessions Judge, Kurnool, alleging that they caused the death of Vanipenta Brahma Rudra Reddy, in the afternoon of 27.12.2006 in the limits of Bandarlapalli Village of Kurnool District.

Complaint with reference to the offence was submitted by the brother of the deceased PW.1, at 6.30 P.M., before the P.S.Kolimigundla.

He stated that A.1, by name, Katasani Venkata Rami Reddy, was the native of Tadipatri and ever since he was married to the daughter of Yatam Venu Gopal Reddy of Bandarlapalli, he was living at that place only.

About three months from the date of Ex.P.1, Vennapusa Nageswara Reddy A.2 is said to have put stones across the road in front of his house to prevent free flow of traffic, on the ground that the tractor of an unknown person caused damage to his house and unless the damaged portion is repaired, he would not allow the traffic to move in front of his house.

Altercations with various persons are said to have taken place and that the deceased chastised A.2, for causing obstruction to the movement of the vehicles.

It was also alleged that on the same day evening at Sajjaladinne Village of Tadipatri Tqluq, Anantapur District, when one Yethapu Siva Sankara Reddy of Bandarlapalli village was proceeding on a tractor, he was way laid by A.1, and A.2 beat him.

A.1 is said to have moved out to his native place and started residing in the house of his elder brother.

At about 2 P.M., on that date, PW.1 and his brother are said to have gone to their quarry of Napa slabs in the village, on a motorcycle and after both of them have gone into quarry, the deceased came out at about 4.00 P.M., saying that he wants to go to another place.

The deceased is said to have moved from the place on the motorcycle, and shortly thereafter, loud sound emanated from the explosion of a bomb.

On hearing that, A.1 and PWs.2 to 4, the workers in the quarry, are said to have come out.

It is stated that they have seen the deceased leaving his motorcycle and running towards the quarry and that in the meanwhile, A.1 to A.5 came and attacked the deceased with various weapons, and caused his death on the spot.

PW.1 is said to have made an attempt to save his brother, but on being threatened by the assailants, he has withdrawn.

On receipt of the complaint, the police registered Crime No.123 of 2006.

The CI of police proceeded to the scene of occurrence, prepared panchanama, caused inquest and sent the dead body to the Government Hospital for post-mortem.

The statements of various persons acquainted with the offence were recorded.

A.1 to A.4 were arrested.

A.5 is said to have surrendered himself and made a confessional statement.

On completion of the investigation, charge sheet was filed and taking the same into account, the trial Court framed the charges under the relevant provisions of law against the accused concerned.

A.5 died, by the time the case was taken up for trial.

A.1 to A.4 pleaded not guilty, and in particular, A.3 has taken the plea of alibi.

A detailed trial was conducted, wherein PWs.1 to 10 were examined and Exs.P.1 to P.15 were filed.

M.Os.1 to 17 were taken on record.

On behalf of the defence, DWs.1 to 3 were examined and Exs.D.1 to D.7 were marked.

Through its judgment, dated 19.03.2010, the trial Court convicted A.1 to A.4 for the offence punishable under Section 302 read with 34 I.P.C.and imposed the punishment of imprisonment for life and fine of Rs.1,000/-, each, in default to undergo simple imprisonment for two months.

The charges referable to the Explosive Substances Act, 1976 (for short the Act) were held not proved.

A.1 to A.4 filed this appeal.

Sr.T.Bali Reddy, learned Senior Counsel for the accused, submits that the very occasion for PW.1 to come out of his quarry was the alleged hearing of the sound of explosion, and once the trial Court disbelieved the plea of the prosecution about the explosion, the very basis for the statement of Ex.P.1 and other steps taken in the prosecution, get diluted.

He contends that this is a rare case in which a senior police official, examined as DW.3, deposed that after conducting thorough investigation, he came to the conclusion that A.3 was not at the place of occurrence, when the incident took place and did not take part in the offence; and still the trial Court has proceeded as though A.3 was present at the scene.

He further submits that the prosecution was totally silent as to the role attributed to A.5 and the specific suggestion made to PW.1 and other witnesses that the death of the deceased was caused by A.5, remains unexplained.

Learned Senior Counsel submits that the view taken by the trial Court on various aspects, cannot be sustained in law.

Learned Additional Public Prosecutor, on the other hand, submits that the samples collected from the scene of offence were sent for examination by the Forensic Science Laboratory and Ex.P.13 discloses that the samples contain the traces of chemicals that are used in country made bombs.

She submits that though DW.3 stated that A.3 did not participate in the offence, the report submitted by him, i.e.Ex.D.6, was not accepted or approved by the Superintendent of Police and obviously, for that reason, the trial Court disbelieved the plea of alibi.

She further submits that A.5 had to be arrayed in the case, only on the basis of his confession and the necessity to adduce any evidence with reference to him was obviated, on account of the fact that he died, by the time the case came up for trial.

She further submits that the trial Court has taken correct view of the matter and the judgment under appeal does not warrant any interference.

PW.1 submitted the complaint Ex.P.1, in relation to the death of his brother - Brahma Rudra Reddy.

Substantial portion of Ex.P.1 was devoted to narrate the state of affairs prevailing in their village.

The emphasis was much upon the role attributed to A.1, who is said to have started living at Bandarlapalli, ever since his marriage with a girl of that village.

The house of A.2 was damaged on being hit by a tractor and when he prevented the flow of traffic in front of his house by putting the stones on the road, as a protest, the deceased is said to have admonished him.

Another incident is that one Mr.Siva Sankara Reddy of Bandarlapalli was said to have been way laid by A.1 and beaten by A.2 in Sajjaladanne Village of Tadipatri Taluq.

That has nothing to do with the family of PW.1 and the deceased.

The sequence of events that took place on 27.12.2006, as mentioned in Ex.P.1, is that at about 2.00 P.M., PW.1 and his brother went to Napa Slab quarry on a motorcycle and at about 4.00 P.M., the deceased came out of the quarry stating that he has to go to some place.

PW.1 remained in the quarry itself and on hearing a sound of explosion, he is said to have come out and noticed that A.1 to A.4 attacked the deceased.

The defence was multi-pronged.

First, it was pleaded that no explosion, as stated by PW.1 has taken place at all.

Secondly, it was pleaded that A.3, was not at the scene of offence on that particular day, and that the same was accepted or certified by none other than the Sub-Divisional Police Officer.

Thirdly, a suggestion was made to the effect that the death of the deceased was caused either by A.5 or someone, on account of there being illicit relation between the deceased and the wife of one Siva Sankara Reddy.

This is a rare case in which the defence has not only made extensive cross-examination of the prosecution witnesses, but also adduced independent evidence.

More interesting is that a senior police official has deposed as a defence witness and his evidence was contradicted by his subordinate, who appeared as PW.10.

First, it needs to be seen as to whether the basic facts mentioned by PW.1 in Ex.P.1 are true.

With reference to the incident, the fiRs.event is said to be the hearing of the sound of explosion, after the brother of PW.1 came out with a view to proceed to a different place.

Though there is some uncertainty, it is not disputed that, a) PW.1 was in the quarry, when his brother left for a different place; b) a person in the quarry cannot see what is happening outside; and c) the only reason for PW.1 to come out of the quarry is his hearing the sound of explosion.

In other words, but for the sound of explosion, PW.1 would not have come out of the quarry at all.

The prosecution is said to have sent the samples collected from the alleged place of explosion to the Forensic Science Laboratory for examination.

In Ex.P.13, opinion was expressed to the effect that the mixture of Potassium Chlorate Arsenic, Salphide and Sulphur, are present and the said substance is mostly used in country made bombs.

As a matter of fact, an independent charge with reference to the Act was also framed against the accused.

The trial Court, however, did not believe the evidence of the prosecution.

It held: there is no substantial evidence that A.1 and A.2 hurled bombs or explosives at the deceased and also as per the admission of PWs.1 to 4, neither there was damage to the motor cycle nor there were injuries on the deceased Brahma Rudra Reddy due to hurling of the bombs and admittedly the remnants of exploded bomb and other items seized are not sent to the District Magistrate, Kurnool who accorded sanction for prosecution under the Explosive Substances Act, as per the citation in 1965 (1) Crl.L.J.160 between Nemai Adak and others v.

The State no cause is made out against A.1 to A.4 for the offences under Selections 3 and 5 of the Explosive Substances Act and hence, they are not liable for punishment under the said sections.

This finding is not challenged in any manner, whatever.

Once the plea of the prosecution that there was an explosion before the deceased was attacked and on hearing the same, PWs.1 to 4 came out is not accepted, the case of the prosecution gets substantially diluted.

The second aspect is about the plea of alibi raised on behalf of A.3.

From the commencement of the proceedings, A.3 was taking the plea that he was not at the place of occurrence and that he was elsewhere.

During the couRs.of investigation, his plea was examined in detail.

DW.3 was the Sub-Divisional Police Officer, Allagadda, at the relevant point of time, and on a direction issued by the Superintendent of Police, he conducted a detailed investigation and submitted a report, Ex.D.6.

After undertaking a detailed discussion, DW.3 observed: The accused (A.1, A.2 and A.4) in their confessional statement did not speak about the presence of Yatham Chinna Kalyan Reddy (A.3) in the commission of offence.

More over there are no overt acts on the A.3.

As a matter of fact, the report - Ex.D.6, came to be considered by this Court, when A.3 filed a bail petition, being Criminal Petition No.4747 of 2007.

This Court took note of the same and in a way, accepted the plea of alibi and granted the bail.

It may be true that the opinion expressed at the time of granting of bail, cannot be treated as final, and the findings in that behalf must be recorded only at the hearing of the main case.

Had the accused, and in particular A.3 left the matter at that, and did not take any steps to buttress the contention, things would have been different.

Apart from making suggestions to almost all the prosecution witnesses, A.3 not only filed Ex.D.6, but also examined DW.3.

This witness fully endorsed Ex.D.6 and withstood the extensive cross-examination by the prosecution.

Once a superior official in the Police Department supported the plea of alibi, the Investigating Officer ought to have fallen in line.

The prosecution did not place any record before the trial Court, which has the effect of nullifying or overriding view expressed by DW.3, in Ex.D.6.

The trial Court came out with a typical approach.

It did not dispute the findings in Ex.D.6, but opined that the distance between the place where A.3 was found at the relevant point of time and the place of occurrence is just 8 kilometers and since there was a time gap of two houRs.it was quite possible for A.3 to reach the place of occurrence.

This would have been possible, if only the finding in Ex.D.6 was that at a particular point of time A.3 was present at a different place and that such a place is easily accessible to the place of occurrence.

The specific finding to Ex.D.6 is to the effect that A.3 did not participate in the offence at all.

Why and how Ex.D.6 was not acted upon, was not explained by the prosecution.

Therefore, the finding of the trial Court as to the plea of alibi raised by A.3, cannot be sustained in law.

If one proceeds technically, benefit may accrue only to A.3.

However, once it emerges that A.3 did not participate in the crime, the veracity of Ex.P.1 and the evidence of all the witnesses, who spoke on that line, suffers a serious dent.

In criminal cases, one cannot adopt the process of eliminating the portion which is not found to be true and treating the rest, as proved.

The cascading or the consequential effect of a part of the case of the prosecution turning out to be false, cannot be ignored.

The third important aspect is about the role attributed to A.5.

The charge sheet made a specific reference to A.5.

He was not only said to have confessed the commission of offence, but also is said to have lead the police officials to the recovery of a material object.

It is not even mentioned that A.5 has stated that he committed the offence along with A.1 to A.4.

The suggestion made on behalf of the defence, that the death of the deceased was caused by A.5 exclusively, assumes significance in this behalf.

Though A.5 was dead by the time the trial of the case commenced, the prosecution owed a duty to the Court to explain the role attributed to A.5.

If a person like A.5 figured as the sole accused, the case would have abated.

However, once he was shown as an accused along with otheRs.the respective roles of the concerned accused must be explained to the satisfaction of the Court.

We find that the prosecution miserably failed in this behalf and it maintained stoic silence as to the role of A.5.

For the foregoing reasons, the Criminal Appeal is allowed.

The conviction and sentence ordered in S.C.No.350 of 2008 on the file of the III Additional Sessions Judge, Kurnool at Nandyal, dated 19.03.2010, against the appellants-accused Nos.1 to 4, are set aside.

The appellants-accused shall be set at liberty forthwith, unless their detention is needed in any other criminal case.

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

The miscellaneous petition filed in this appeal shall also stand disposed of.

____________________ L.NARASIMHA REDDY, J.

_______________ M.S.K.JAISWAL, J.

24.04.2014