Bollineni Mallaiah vs The State of Andhra Pradesh

L. Narasimha Reddy, J.—14 persons, namely, A.1 to A. 14, were put to trial in S.C. No. 60 of 2009 on the file of I Additional Sessions Judge, Guntur, alleging that they caused the death of Narala Venkateswarlu of Daida Village of Gurazala Mandal, Guntur District, in the evening of 16.04.2008. It was alleged that the deceased was Sarpanch of the village on an earlier occasion and his wife also worked as Sarpanch, and on that particular day, himself, his wife and several others went to Kallam i.e., chilly drying yard, and were returning at about 5.30 p.m. to the village. When they were about to reach the village, an auto rickshaw is said to have stopped before them, and apprehending some untoward action, the persons, who were accompanying the deceased, have dispersed to both sides of the road and, still, a bomb was thrown at them. The deceased is said to have proceeded to the open land of one Mr. Leila Kotaiah, and that on noticing him, all the accused surrounded him. At that time, P.W.2, the wife of the deceased, is said to have requested the accused not to cause harm to her husband, and without heeding to her request, the accused attacked the deceased with knives, axes and other weapons, indiscriminately. The prosecution further stated that the information about the death of the deceased was given to the police, by P.W. 1, a close relation of the deceased, by submitting a complaint (Ex. P.1) at 2.00 a.m. on 17.04.2008 and, thereupon, further steps were taken by the police. A charge sheet was filed mentioning the various steps taken by the police, such as, conducting of inquest panchnama, recording of confessional statements and arrest of the accused. The trial Court framed necessary charges and, on the accused pleading not guilty, the trial was conducted.

On behalf of the prosecution, P.Ws. 1 to 11 were examined and Exs. P.1 to P. 14 were filed. M.Os.1 to 12 were taken on record. Through its judgment, dated 04.02.2010, the trial Court acquitted A. 1, A. 5 and A.9 of the offences alleged under Sections 3 and 5 of the Explosive Substances Act. As regards the other charges referable to Sections 147, 148, 302 r/w 149 IPC, it acquitted A.3, A.6, A. 12, A. 13 and A. 14, whereas A.1, A.2, A.4, A. 5 and A. 7 to A. 11 were convicted of the said offences. Punishment of imprisonment for life and fine of Rs. 100/- each was imposed. Hence, this appeal by the convicted accused.

Sri O. Kailashnath Reddy, learned counsel for the appellants, submits that the very initiation of proceedings against the accused was defective and untenable and the trial Court did not take the same into account. He contends that even according to P.W. 11, the Investigating Officer, he received the information about the occurrence at 7.15 p.m. on 16.04.2008, and he rushed to the spot within half an hour, whereas, the complaint, Ex. P.1, was submitted at 2.00 a.m. on 17.04.2008. He submits that P.W.11 categorically admitted that by the time he directed removal of the dead body of the deceased from the scene of offence, no crime was registered nor any entry was made in the general diary and that it constitutes a serious lapse. Learned counsel further submits that there are serious discrepancies in the depositions of P.Ws.1 and 2. It is also urged that P.W.1 admitted that the deceased was not only a rowdy sheeter, but also was convicted in several cases, including those relating to the attack on the officials of Excise Department.

Learned Additional Public Prosecutor, on the other hand, submits that mere visit of the Police Officer to the scene of offence, before a formal complaint is submitted, does not vitiate the proceedings. She contends that though P.W.11 and other officials visited the site, the crime was registered, only on the strength of Ex. P. 1 complaint. It is also her case that the eyewitness account of P.Ws.1 and 2 was consistent and the trial Court has taken correct view of the matter. She submits that existence of criminal record, if any, against the deceased does not justify the commission of crime by the accused.

For the most part of it, in criminal cases, particularly, where serious crimes are alleged, the starting point would be the registration of crime by the Station House Officer, be it, on submission of a complaint, generally, by the victims or their dependents or close relations or otherwise. Since the law does not stipulate any particular form of complaint or information, a crime can be registered, even on the strength of the informal communication received by police. The steps referable to law, such as, causing inquest on the dead body or sending it to post-mortem, can be taken, only after a crime is registered. It is with reference to the crime number, that all steps are taken.

The case on hand presents a typical instance. The incident is said to have taken place at about 5.30 p.m., when the deceased, his wife, P.W. 1 and others were returning from the chilly drying yard. The Inspector of Police, P.W. 11, stated that he received information about the occurrence at 7.15 p.m. on 16.04.2008, and even while proceeding to the place of occurrence, he passed on the information not only to his superiors, such as, the D.S.P., but also to his inferior i.e., the S.I. of Police, by 8.00 p.m. The Police Officers, that included the D.S.P., C.I., and S.I., visited the site and quite large number of constables also were deployed.

P.W.11, both in his chief-examination and cross-examination, stated as under.

Chief-examination,

On 16.04.2008 at 7.15 p.m. I received information from Daida village about a rioting and murder. Then, I along with my S.I. and staff proceeded to Daida village and visited the scene of offence. The dead body of Narala Venkateswarlu was found with injuries in a vacant yard of Leila Kotaiah, L.W.10. Then, there is gathering at that place. I cleared the crowd and posted guard at the scene of offence. Daida is a faction village. It is affected with Maoism. I immediately informed to my superior officers and as per their instructions, I proposed to shift the dead body from the scene of offence to the Government Hospital, Macherla, keeping in view of tension prevailing in the village.

Cross-examination:

While I was in the office, I received information that Narala Venkateswarlu was murdered. One of my informants gave the information. No general dairy is maintained in any circle office. I have not recorded this fact anywhere. I took about half an hour to reach Daida village. I have not counted the number of persons in the crowd. In informed Gurazala S.H.O. about the information received by me. I have not verified the G.D. entry. D.S.P. visited the scene of offence along with gunman and other staff. Altogether, we are 50 police persons at the scene of offence.

There is a rowdy sheet opened against the deceased in several cases. The deceased was convicted for having attacked excise officials and undergone punishment.

Any S.H.O. got power to register F.I.R. I have taken the permission from D.S.P. and S.P. to shift the body of the deceased before inquest. I have mentioned that fact in C.D. dated 17.04.2008 at page No. 3 in 2nd para.

P.W.11 admitted that he removed the dead body of the deceased from the scene of offence and sent it to Macherla, without registering any crime whatever. It is not as if that the case was registered, soon after the dead body was shifted to the hospital. It was only after P.W.1 proceeded to the police station at 2.00 a.m. on 17.04.2008, that the crime is said to have been registered. Even here, the evidence is not clear.

P.W.10, who received the complaint, is a Head Constable. According to him, P.W. 1 did not furnish the necessary information, and he did not even state that any crime was registered, after he received Ex. P.1 complaint. The net result is that many important steps in the process of investigation were taken and a large contingent of police had visited the village, even before any crime was registered with reference to the incident.

It was elicited from P.W.1 that the facility of telephone is available in the village and the information could have been passed on to the police. He stated that he proceeded all the way to Gurazala, by walking up to distance of about 10 kilometers. It is just ununderstandable, as to why he has gone to Gurazala, when the senior Police Officers were already in the village. His reply to a suggestion on this aspect is evasive.

There is a serious discrepancy between the evidence of P.Ws.1 and 2, as to the manner in which the alleged attack has taken place. P.W.1 stated that on noticing an auto rickshaw at about 5.30 p.m., himself and the deceased proceeded to the northern side of the road, whereas P.W.2, the wife of the deceased, P.W.4 and one Mr. Kotaiah (not examined) have gone to the southern side. A.1 and A.2 are said to have hurled bombs on the northern side, and on hearing the sound, P.W. 1 is said to have gone towards the hayrick of one Mr. Unnava Narayana, and the persons, who have left to the southern side, also followed him. The deceased alone is said to have run to the vacant site of one Leila Kotaiah, and the accused have once again hurled bombs and surrounded the deceased with sickles in their hands. To the extent that on noticing the auto rickshaw, P.W.1 and the deceased went to the northern side of the road, P.W.2 is consistent with P.W.1. However, she stated that P.W.1 as well as the deceased ran towards the hayrick yard of Leila Kotaiah, and thereafter, P.W.1 proceeded to the hayrick yard of one Mr. Unnam Venkatanarasaiah to hide himself, and P.W.2 and others followed P.W.1. Added to that, P.W.2 stated certain things, which are not spoken to by P. W. 1. Several omissions and improvements on the part of P.W.1 were elicited, and he was not able to answer, as to why he has gone to the police station, once a large contingent of police had already landed in the village. He admitted various omissions vis-�-vis Ex. P.1.

P.W.3 is said to have been part of the group of the deceased, P.W.1, P.W.2 and others, who were coming from the chilly drying yard. However, his presence was not spoken to either by P.W.1 or P.W.2, nor was it mentioned in Ex. P.1. The evidence of this witness stands on the same footing as that of P.Ws.1 and 2.

P.W.5 is a blacksmith and A. 5 is said to have come to him two days before the incident for preparing the knives. P.W.6 is the photographer. P.W.7 is the V.R.O., who is a panch witness for inquest. P.W.8 is a doctor, who conducted the post-mortem. As many as 19 external injuries and 17 corresponding internal injuries were found on the dead body of the deceased. P.W.10 is the Head Constable, who received Ex. P.1 complaint.

It is important to note that Daida is a faction ridden village and the deceased was not only a rowdysheeter, but also was convicted in several cases. The relevant portion of the evidence of P.W.11 reads as under.

There is a rowdy sheet opened against the deceased in several cases. The deceased was convicted for having attacked excise officials and undergone punishment.

He further admitted that P.W.2 did not state before him that A.1 to A. 13 surrounded the deceased and that they were armed with four or five hunting sickles. Several such omissions or improvements were elicited from P.W. 11.

The motive for the accused to attack the deceased is said to be that A.1 was attacked by the deceased on 15.11.2006, and in relation thereto, Crime No. 77 of 2006 was registered, and it lead to S.C. No. 219 of 2008, and though efforts were said to have been made by the deceased for compromise, A.1 opposed it and the deceased declared that A.1 must count his days; and apprehending danger to his life, A.1 killed the deceased with the help of A.2 to A. 14. However, this was not proved to the satisfaction of the Court.

If we take into account, the serious lapse in the manner of initiation of the proceedings against the accused, the inconsistency in evidence and various admissions on the part of P.W. 11; it becomes clear that the prosecution failed to establish its case against the accused.

Therefore, the Criminal Appeal is allowed, and the conviction and sentence ordered against the appellants/A. 1, A.2, A.4, A.5 and A.7 to A. 11, in S.C. No. 60 of 2009 on the file of I Additional District & Sessions Judge, Guntur, through judgment dated 04.02.2010, 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.