Common Judgment in Crl.Appeals 1 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
IN THE COURT OF THE II ADDITIONAL SESSIONS JUDGE :: GUNTUR
PRESENT: SMT.V.A.L.SATHYAVATHI, II Additional Sessions Judge.
Friday, the 1 st day of November, 2024
Criminal Appeal No.262/2012
Criminal Appeal No.264/2012
Criminal Appeal No.265/2012
And
Criminal Appeal No.266/2012
C.A.No.262/2012:
From what Court theAssistant Sessions Judge, Mangalagiri appeal is
No. of the case in that S.C.No.150/2010 Court
No. of the CriminalCA 262/2012 Appeal
Name and Description1.Kosaraju Venkateswara Rao, S/o.Nageswara of appellantRao, aged 38 years, Kamma, Allapuram Village, Gannavaram Mandal, Guntur District (Accused No.4).
2.Kambhampati Ramu, S/o.Nageswara Rao, aged about 38 years, Kamma, Subbarao Nagar, Gannavaram, Krishna District. (Accused No.5)
Name and descriptionThe State, Station House Officer, Mangalagiri of respondent Rural Police Station, Rep by Public Prosecutor, Guntur The Sentence andAccused No.4 is found guilty for the offence Law and which it was punishable under Section 365 of I.P.C, according imposed in the Lower Courthe is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year. Further, the accused No.4
Common Judgment in Crl.Appeals 2 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 is found guilty for the offence punishable under
Section 397 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year.
Accused No.5 is found guilty for the offence punishable under Section 365 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year. Further, the accused No.5 is found guilty for the offence punishable under
Section 397 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year.
Whether confirmed, modified or reversed
CONFIRMED
and if modified the modification
Date of presentation07.08.2012
Date of filing07.08.2012
Common Judgment in Crl.Appeals 3 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Date of notice issued 08.08.2012
When ordered to10.09.2012 appear
Date of hearing16.10.2024
Date of Judgment01.11.2024
C.A.No.264/2012:
From what Court theAssistant Sessions Judge, Mangalagiri appeal is
No. of the case in that S.C.No.150/2010 Court
No. of the CriminalCA 264/2012 Appeal
Name and DescriptionYalamaddi Naga Raju, S/o.Koteswara Rao, of appellantHindu, aged about 29 years, R/o. Atmakuru Village, Mangalagiri Mandal, Guntur District. (Accused No.2)
Name and descriptionThe State, Inspector of Police, Mangalagiri Rural of respondent Police Station, Rep by Public Prosecutor, Guntur
The Sentence andAccused No.2 is found guilty for the offence Law and which it was punishable under Section 365 of I.P.C, according imposed in the Lower Courthe is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year. Further, the accused No.4 is found guilty for the offence punishable under
Section 397 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under
Common Judgment in Crl.Appeals 4 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 go simple imprisonment for a period of one (1) year.
Whether confirmed, modified or reversed
CONFIRMED
and if modified the modification
Date of presentation08.08.2012
Date of filing08.08.2012
Date of notice issued 09.08.2012
When ordered to10.09.2012 appear
Date of hearing16.10.2024
Date of Judgment01.11.2024
C.A.No.265/2012:
From what Court theAssistant Sessions Judge, Mangalagiri appeal is
No. of the case in that S.C.No.150/2010 Court
No. of the CriminalCA 265/2012 Appeal
NameandKesari Rami Reddy, S/o.Venkata Reddy, aged Descriptionof30 years, Reddy, R/o.7/2, A.T.Agraharam, appellantGuntur. (Accused No.8)
Name and descriptionThe State, Station House Officer, Mangalagiri of respondent Police Station, Rep by Public Prosecutor, Guntur
The Sentence andAccused No.8 is found guilty for the offence Law and which it was punishable under Section 365 of I.P.C, according imposed in the Lower Courthe is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year. Further, the accused No.8
Common Judgment in Crl.Appeals 5 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 is found guilty for the offence punishable under
Section 397 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year.
Whether confirmed, modified or reversed
CONFIRMED
and if modified the modification
Date of presentation08.08.2012
Date of filing08.08.2012
Date of notice issued 09.08.2012
When ordered to07.09.2012 appear
Date of hearing16.10.2024
Date of Judgment01.11.2024
C.A.No.266/2012:
From what Court theAssistant Sessions Judge, Mangalagiri appeal is
No. of the case in that S.C.No.150/2010 Court
No. of the CriminalCA 266/2012 Appeal
Name and DescriptionReddy Narendra, S/o.Manga Rao, Hindu, aged of appellant23 years, Hindu-Vysya, Badepuram Village, Tadikonda Mandal, Guntur District (Accused No.9)
Name and descriptionThe State, Inspector of Police, Mangalagiri Rural of respondent Police Station, Rep by Public Prosecutor, Guntur
The Sentence andAccused No.9 is found guilty for the offence Law and which it was
Common Judgment in Crl.Appeals 6 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 imposed in the Lowerpunishable under Section 365 of I.P.C, according Court he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year. Further, the accused No.9 is found guilty for the offence punishable under
Section 397 of I.P.C, according he is convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) and further sentenced to pay a fine of Rs.3,000/- (Rupees three thousand only) in default of payment of fine, he shall under go simple imprisonment for a period of one (1) year.
Whether confirmed, modified or reversed
CONFIRMED
and if modified the modification
Date of presentation08.08.2012
Date of filing08.08.2012
Date of notice issued 09.08.2012
When ordered to07.09.2012 appear
Date of hearing16.10.2024
Date of Judgment01.11.2024
Criminal Appeal No.262/2012 is came up on 16.10.2024 for final hearing
before me in the presence of Sri G.Joseph Ravi Kumar, Advocate for Appellants /
Accused Nos.4 and 5; Criminal Appeal No.264/2012 is came up on 16.10.2024 for final hearing before me in the presence of Sri R.Sivaji, Advocate for Appellant / Accused No.2; Criminal Appeal No.265/2012 is came up on
Common Judgment in Crl.Appeals 7 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 16.10.2024 for final hearing before me in the presence of Sri Ch.Ramesh, Advocate for Appellant / Accused No.8; and Criminal Appeal No.266/2012 is came up on 16.10.2024 for final hearing before me in the presence of Sri M.R.M, Advocate for Appellant / Accused No.9; and the Learned Additional Public Prosecutor, for respondent in all four cases and the matter having stood over for consideration till this day, this Court delivered the following:
C O M M O N J U D G M E N T
These are the four Criminal Appeals. Criminal Appeal No.262/2012 is filed by Appellants/Accused Nos.4 and 5 in trial court; Criminal Appeal No.264/2012 is filed by Appellant/Accused No.2 in trial court; Criminal Appeal No.265/2012 is filed by Appellant/Accused No.8 in trial court; and Criminal Appeal No.266/2012 is filed by Appellant/Accused No.9 in trial court; challenging the conviction and sentence imposed by learned Assistant Sessions Judge, Mangalagiri in
S.C.No.150/2010, dated 06.08.2012. Since in these four cases, appellants challenges the same judgment, common judgment is pronounced to dispose of these four Criminal Appeals i.e., Criminal Appeal No.262/2012; Criminal Appeal
No.264/2012; Criminal Appeal No.265/2012 and Criminal Appeal No.266/2012.
2.Appellants in Criminal Appeal No.262/2012 is Accused Nos.4 and 5;
Appellant in Criminal Appeal No.264/2012 is Accused No.2; Appellant in Criminal
Appeal No.265/2012 is Accused No.8 and Appellant in Criminal Appeal
No.266/2012 is Accused No.9, all are preferred these four appeals being aggrieved by conviction and sentence passed by the learned Assistant Sessions
Judge, Mangalagiri in S.C.No.150/2010.
Originally, S.C.No.150/2010 on the file of Assistant Sessions Court,
Mangalagiri was disposed on 06.08.2012. Later, Accused No.1 in
S.C.No.150/2010 preferred Criminal Appeal before the Hon’ble High Court at
Hyderabad vide Criminal Appeal No.871/2012, consequence of it, the trial Court submitted all the material part of the record to the Hon’ble High Court for disposal according to law. Some of the Accused / Appellants i.e., A2, A4, A5, A8 and A9 preferred Criminal Appeals vide in Criminal Appeal Nos.262, 264, 265 and 266 of 2012 before this Court, which are pending for disposal. Further, at the request of
Common Judgment in Crl.Appeals 8 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 the Appellants herein and on production of the certified copies of all relevant material relating to S.C.No. 150/2010 on the file of Assistant Sessions Court,
Mangalagiri obtained from Hon’ble High Court of Andhra Pradesh, by the accused, this Court proceeded with for disposal of the matters.
3.The case of the prosecution as could be seen from final report in brief is as follows:
i) The accused are residents of various places and are close associates with one another. PW3- Tiramdoss Sambasiva Rao is resident of
Ganaparthi Nagar, Atmakur. He is a Goldsmith and said to be the victim – injured in the case. He used to get orders for getting gold ornaments prepared from jewellery shops in Vizag and Vijayanagaram. On 09.07.2006 at about 5.00 a.m.,
P.W.3 started from Atmakuru to go to Vizag and Vijayanagaram with gold ornaments prepared at his house in order to deliver them to jewellery merchants from whom he got orders for supply of those ornaments. P.W.1-Tiramdoss
Ramesh Babu, who is the defacto- complainant and is son of P.W.3, he got
P.W.3 boarded the city bus, bearing service No.47 at by-pass road, Atmakuru. In order to go to railway station, Vijayawada, P.W.3 got down the city bus at
Raghavaiah Park, Vijayawada and was proceeding by walk to railway station,
Vijayawada.
ii)P.W.3 noticed a person who is said to be Nageswara Rao/ Accused
No.7 followed him and in the meantime, a black coloured car, appeared to be like a jeep came from eastern side and a person who is identified as accused
No.8/Kesari Rami Reddy got down from the vehicle. Both the accused Nos.7 and 8 pushed P.W.3 into the vehicle. P.W.3 noticed 7 or 8 persons present inside the vehicle. They tied the mouth of P.W.3 with a towel. Initially, P.W.3 was taken to
Gannavaram and from there to Allipuram of Krishna District. Later, he was brought to Buddavaram of Gannavaram Mandal, Krishna District and confined in a house. At this juncture, P.W.3 could notice all the accused. Of them, accused
Nos.2 and 3 were armed with 4 knives came to P.W.3, and they took all the ornaments and cash of Rs.600/- (Rupees six hundred only) from P.W.3. The accused threatened P.W.3 on point of knife not to reveal the incident to any one and they threatened to do away his life, in the event he reveals the incident.
Common Judgment in Crl.Appeals 9 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
P.W.3 identified accused Nos.1 and 2 as first one worked under him and later one is resident of Atmakuru village to which P.W.3 belongs.
iii) The accused forced P.W.3 to phone up to his house for bringing cash of Rs.6 lakhs (Rupees six lakh only); otherwise, they threatened him to do away his life. All of them beat P.W.3, indiscriminately. P.W.3 phoned up to his house and contacted his son P.W.1 to arrange Rs.6 lakhs (Rupees six lakh only), for which, P.W.1 questioned P.W.3 for the necessity of huge amount of Rs.6 lakhs (Rupees six lakh only) and expressed his inability to arrange such amount.
Later, on the third day i.e. on 11.07.2006 at about 11.00 p.m., the accused shifted P.W.3 to Bhavanipuram of Vijayawada and confined in a two-storied building. They demanded for Rs.6 lakhs (Rupees six lakh only), for which, P.W.3 expressed helplessness to pay the said amount. After retaining for 3 days, on 14.07.2006 in the mid night, Nageswara Rao/Accused No.7 and Vikki / Accused
No.6 took P.W.3 by a motorbike and left him at Vellaluru. With great difficulty,
P.W.3 could come down to his house on 15.07.2006.
iv)On 11.07.2006 on receipt of phone call from P.W.3 for arrangement of Rs.6 lakhs (Rupees six lakh only), suspecting that P.W.3 was in peril, his son
P.W.1 turned up to Mangalagiri Rural police Station and presented a report under
Ex.P1. On the basis of Ex.P1, P.W.8/T.Dilip Kumar, the then Sub Inspector of
Police, Mangalagiri Rural Police Station, registered a case in Cr. No.222/2006 under Section 365 IPC and issued a First Information Report, marked as Ex.P8.
He did part of investigation by examining P.Ws.1, 2 and other witnesses and handed over case diary to P.W.9/M.Madhusudhana Rao, the then Inspector of
Police, Mangalagiri, for further investigation.
v)During the course of investigation, P.W.9 examined P.W.3 and other witnesses; that he arrested accused Nos. 1 to 5, 8 and 9 on three different dates i.e. on 22.08.2006 (arrest of accused Nos.1 to 5), on 26.08.2006 (arrest of accused No.8) and on 29.08.2006 (arrest of accused No.9) in the presence of
P.W.6 and L.W.14/Shaik Nanne mediators and seized M.Os.1 to 5 gold ornaments from the possession of accused under cover of mediatornamas under
Exs.P4, P5 and P6. P.W.7/Dr.G.V.Bharathi, Civil Assistant Surgeon, Government
Hospital, Mangalagiri, examined P.W.3 and issued Ex.P7- wound certificate.
Common Judgment in Crl.Appeals 10 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 vi)P.W.11/V.Bala Bhaskararao, the then Additional Judicial First Class
Magistrate for Prohibition and Excise Cases, Guntur, conducted Test
Identification Parade for identification of suspects with P.W.3. P.W.3 identified the suspects as accused Nos.4, 5, 8 and 9. To that effect P.W.11 prepared test identification proceedings under Ex.P11 and after conclusion of investigation,
P.W.9 filed final report. Thus, all the accused are liable for the offences punishable under Sections 365 and 397 of Indian Penal Code.
3.On appearance of accused Nos.1 to 5, 8 and 9, copies of documents were furnished to the accused in terms of Section 207 of Cr.PC. Accused were examined under Sec.239 Cr.PC and learned trial court framed charge under
Sections 365 and 397 of Indian Penal Code were framed, read over and explained to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried.
4.To substantiate the case of prosecution, PW1 to PW11 were examined.
Exs.P1 to P11 and M.O.1 to M.O.5 were marked.
5.After closure of prosecution evidence, accused were examined under
Section 313 Cr.PC and they denied the evidence. On behalf of defence, no oral evidence or documentary evidence was adduced.
6.The learned trial Court after hearing both sides and perusing the record came to conclusion that prosecution established the guilt of Appellants /
Accused above for the offence punishable under Sections 365 and 397 of Indian
Penal Code, and accordingly they were convicted under Section 235(2) CrPC and sentenced as mentioned supra.
7.Aggrieved by that judgment, the appellants / Accused Nos.4 and 5;
Accused No.2; Accused No.8 and Accused No.9 filed Criminal Appeals i.e., 262/2012; 264/2012; 265/2012 and 266/2012 respectively and in the memorandum of grounds of appeals, they contends that...
i)the judgment and the conviction passed by the trial Court are contrary to law, weight of evidence and probabilities of the case;
Common Judgment in Crl.Appeals 11 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 ii) the trial Court ought to have disbelieved the evidence of prosecution, and acquit the appellants / accused; iii) the trial Court ought to have disbelieved the oral and documentary evidence produced by the prosecution and ought to have acquit them instead of convicting; and further the appellants / accused have raised various grounds questioning the findings of the learned trial Court.
Therefore, appellants pray this Court to allow the appeal by setting aside the findings of the learned trial Court and to acquit the appellants / accused.
8.Both sides advanced oral arguments.
9.Points for determination are:- 1.Whether the evidence on record is not consistent, not believable and failed to establish the guilt of accused under Sections 365 and 397 of Indian
Penal Code ?
2.Whether the impugned judgment of trial court is incorrect on facts and
Law?
10.POINT Nos.1 and 2 :
Appellants were tried by learned Assistant Sessions Judge, Mangalagiri for the charges Under Sections 365 and 397 of I.P.C. After due trial there were found guilty and were convicted and sentenced the offence Under Section 365 and 397 of I.P.C. Those Penal provisions read as below:
Section 365 of I.P.C: Kidnapping or abducting with intent secretly
and wrongfully to confine person :
“Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Common Judgment in Crl.Appeals 12 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Section 397 of I.P.C : Robbery or dacoity, with attempt to cause
death or grievous hurt :
“If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.“
11.Evidence on record consists of victim/P.W.3 through whom the facts constituting the charges were elicited by prosecution. There are two witnesses (P.W.1 and P.W.2). They spoke about some facts about the crime and the prosecution argued that their versions support and strengthen the version of victim. Prosecution also examined P.W.4 and P.W.5 to prove that the victim was confined in a building at Bhavanipuram. However, they did not support the prosecution case. To substantiate the case of the prosecution that these
Appellants participated in the crime, accused were put to test Identification
Parade which was held by learned Judicial First Class Magistrate who testified as
P.W.11. The remaining witnesses are to prove the events subsequent to crime which include the arrest and seizure of the property that was stolen.
12.The following valuables i.e., M.O.1: Pair of Gold bangles; M.O.2: Pair of ear hangings; M.O.3: Locket; M.O.4: Sania Meerja Nose rings (50 in number) and M.O.5: Two Gold Rings were the subject matter of crime which were allegedly taken away by the accused from the victim. Accused did not make any claim of these articles. The claim of possession of these articles and their right to have them was not disputed during the trial. Appellant/Accused did not claim any right over these material objects (M.O.1 to M.O.5).
13.At the trial it was established that even prior to the commission of offence,
P.W.3/victim and A1 and A2 have been known to one and another. Whereas A3 to A9 were not known to P.W.3/victim and his knowledge about them was only when the offence took place.
Common Judgment in Crl.Appeals 13 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
14. As could be seen from the trial court record and the grounds urged in these appeals and arguments advanced, the trial was held in terms of procedure provided for trial of cases by Sessions Court and all the accused were defended by their learned counsels. It further shows principles of natural Justice was complied with. Therefore, the aspects of fair trial is not a matter of disprove in this appeal.
15.At the trial the defence of the accused is a plea of not guilty and there is no specific line of defence. No general exceptions like alibi was raised. They have not adduced any defence evidence. When accused/appellants were examined
U/s.313 Cr.P.C, their response was mere denial and they have not explained anything when the facts put to them. The essence of defence version is only to the affect that the evidence lead by the prosecution cannot be believed and the versions of the witnesses are discrapant and contradictory. The witnesses for seizure are stock witnesses. The evidence adduced is only from the interested witnesses. Thus, the main challenge is that the prosecution failed to prove the case beyond reasonable doubt. It is to be mentioned here that, during the trial defence did not get mark any contradictions in Exhibit D series.
16.In appreciating the case the following facts and dates are found relevant and important. P.W.1 is the son of P.W.3/victim. P.W.2 is the wife of P.W.1 and daughter in law of P.W.3/victim. P.W.1 and P.W.3 received orders from Jewellers and get made the jewellary and P.W.3 goes to the jewelers and deliver the jewelry articles to them and obtained fresh orders for work.
5 a.m. on 9.7.2006 –
On that day P.W.3 left his village, Ganapathi Nagar,
Guntur District to go to Visakhapatnam and Viziana- garam.
9 p.m., on 9.7.2006 -
Through phone from jewelers that P.W.1 and P.W.2 were informed that P.W.3 did not come.
10.07.2006 –
P.W.1 went in search of P.W.3 at Vizag and Viziagna- garam.
Common Judgment in Crl.Appeals 14 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 10.30 a.m., on 11.07.2006 –
P.W.1 received phone call from P.W.3 asking P.W.1 to secure Rs.6,00,000/-, that phone call was from Phone
No.9985158538.
8.00 p.m., on 11.07.2006 –
P.W.1 waited till then and did not get any further phone call or information and hence filed Ex.P1 with the Police which was registered as First Information Report.
14.07.2006 –
P.W.3 returned home and informed the crime incident.
22.08.2006 –
A1 to A5 were arrested by the Police.
26.08.2006 –
A8 was arrested by the Police.
29.08.2006 –
A9 was arrested by the Police.
M.O.1 to M.O.10 were recovered from the accused by the Investigating
Officer.
04.09.2006 –
Investigating Officer made a request for conducting Test
Identification Parade 08.09.2006 –
P.W.11 the learned Judicial First Class Magistrate conducted Test Identification Parade. P.W.3 identified
A4, A5, A8, A9. P.W.3 failed to identify A3 and pointed out a wrong person. Learned trial Court granted benefit of doubt and acquitted A3.
17.05.2011 –
P.W.3 gave sworn evidence before the Trial Court.
06.08.2012 –
Learned Trial Court pronounced its Judgment.
Thereafter, the convicted persons preferred these criminal appeals
Common Judgment in Crl.Appeals 15 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Thereafter, the convicted persons preferred these criminal appeals.
Earliest information given to the Police is in Ex.P1, it is in Telugu Language. In
English translation it reads as below:
“To
The Sub-Inspector of police, Mangalagin, Rural
Report filed by Thirandasu Ramesh Babu, resident of Ganapathi Nagar
Atmakur village, Mangalagiri Mandal,
Sir,
My father Thirandasu Sambasivarao, boarded the bus No. 47 (City bus) at 5 a.m. on 9.7.2006, Sunday at Nirmala Convent, Bypass junction to go to Vizig by Ratnachal express. He took the gold ornaments on business order. At that time, he is carrying of gold bangles of 30grs, one pair of gold ear hangings-4gr, locket-7 gr. ear rings of Saniya mirja type - 50pieces-7gr., and wearing two gold rings weighed 10 gr and another silver ring to his hand. But, at 7p.m. on Sunday I received a phone call from the jewellary shop owner, that my father did not come
Getting worried, we made phone calls to all the shops, which my father used to go, and they informed that he did not come. On the next day morning at 9a.m. I boarded an express train going Vijayawada to Visakhapatnam and enquired in all the jewellery shops at Vijayanagaram and Visakhapatnam and searched at police stations, Railway stations and returned to Mangalagiri by bus by 8pm. At about 10.20 pm., my wife informed me on phone, that my father made a phone call to her, that he was at Vizag, and when she asked about why he did not make a phone call, he answered with fear and in worried manner that he is engaged in work, and that in heard another's voice in phone, saying "down the head Today i.e., on 11.7.2006 after I reached home, I contacted Telephone exchange people and applied for "Call raider' and get the connection. Today morning at 10.30a.m.
my father again made a call to us. He is talking with fear. When I asked him about his whereabouts, he informed that he was at Vizag in Krupa market. When
I asked him for correct address, he told that he is on work, and asked to prepare an amount of six lakhs urgently. In the meantime, the other person in phone ordered my father to say about the money. Again my father asked to ready six lakh rupees immediately. We agreed for it and ask him to call again. The number shown in the call raider is "9985158538". Hence, I request to investigate the matter and save my father”
Common Judgment in Crl.Appeals 16 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
17.The evidence of P.W.1 proved the contents of Ex.P1. The crucial direct witness is P.W.3. He spoke as to what had happened to him in the hands of accused, which reads as below:
“I am a resident of Ganapathinagar, Atmakur. I have got three sons. P.W.1 is 2 nd elder son. My wife and myself reside along with P.W.1. I saw all the accused, on 9.7.2006.
I get orders for preparation of gold ornaments from jewellery shops at Vizag and Vizianagaram. P.W.1 gets the work done at the house. I take prepared ornaments and handedover them to jewellery shops at Vizianagaram and
Visakhapatnam. I go on Sundays for that purpose.
On 9.7.2006 at about 5.00 a.m., I started from house to go to Vizianagaram and Visakhapatnam. I took a pair of bangles weighing 30 grams, a locket weighing 7 grams, a pair of ear hangings (Buttalu) weighing 4 grams, Saniamirza nose rings 50 in number weighing 7 grams, two rings weighing 10 grams, a silver ring. With the said ornaments and cash of Rs.600/- I started from house. P.W.1 dropped me at Bipass Road, Atmakuru. He made me to get boarded
No.47 City Bus to go to Vijayawada.
I got down at Raghavaiah Park. While I was proceeding after getting down the bus, a person followed me. He was aged about 25 years. His name is
Nageswararao. I had to go to bus stop. I took turn towards western side. In the meantime, A black coloured car which appeared like a jeep, came from eastern side. The said car was stopped ahead from me. A person got down from the car. The witness has shown the person standing in the dock who is standing in 3 rd position from right to left. On ascertaining his name, the said person has stated that his name is Kesari Ramireddy(A8). While I was about to reach the bus stop, the person who followed me and the person who got down from the car together pushed me into the car.
Common Judgment in Crl.Appeals 17 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
There were about seven or eight persons inside the car. The persons sitting in the car tied my mouth with a towel. All the accused were present in the car. (The witness showed all the accused by pointing them). Initially, I was taken to
Gannavaram. From there, I was taken to Allipuram of
Krishna District. There, the accused made to board a person, in the car. The accused took me to Buddavaram.
They confined me in a house. At that juncture, I saw all the acused. A2 and A3 armed with knives came to me. They took away all the ornaments and cash of Rs.600/- from me.
(The witness has shown A2 and A3 by touching them). At that time remaining accused were present. A2 and A3 threatened me not to reveal incident to anybody and they threatened to do away my life if revealed the incident. A1-
Sankar worked under P.W.1. I prayed to release me. For which, the accused did not agree; that they forced me to get
Rs.6,00,000/- from my house, otherwise they threatened me to do away my life. All of them beat me indiscriminately. On the same day in the night the accused made me to telephone to my house. They demanded me to get
Rs.6,00,000/- from my house. They warned that I would be released only in the even of payment of Rs.6,00,000/-.
Then, I stated that we had no such capacity to pay
Rs.6,00,000/-. Then the accused beat me questioning our financial status. They stated that they have got information of our financial status and with that information only, they brought me. Then, I contacted P.W.1 and asked to arrange
Rs.6,00,000/- for whcih, P.W.1 questioned me for the necessity of huge amount of Rs.6,00,000/-, and he expressed his inability to arrange Rs.6,00,000/-.
I heard the conversation among the accused that they intended to shift me from that place on the apprehension that the neighbours were watching the
Common Judgment in Crl.Appeals 18 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 movements of them. On the same day i.e., on 11.07.2006 at about 11.00 p.m., the accused took me in the same car to
Bhavanipuram of Vijayawada. The accused kept me in a two storied building at Bhavanipuram. He kept me in a room of two storied building. They demanded for Rs.6,00,000/-. For which, I expressed our helplessness to pay Rs.6,00,000/-.
They remained me for three days at Bhavanipuram. ON the next day I appealed to A1 saying that “maa sangathi neeku telusukadha, neevu maa kotlo panisesavu kada, maa paristiti guninchi neeku telusukadha”. So saying I appealed
A1 to convince other accused about my financial position.
For which, A1 was reluctant saying that “ it is for them and he had no concern except hand over me to them.
A2 is resident of Atmakuru. I also appealed A2 to convince others as he knew about my financial position.
Both A1 and A2 stated that they had no concerned except handing over me to vicky, Nageswararao, Choudary and others.
On 14.07.2006 at about 12.00 midnight,
Nageswararao and Vicky took me by a motorbike and left me at Vellaluru, where there was no movements of people and the said place was isolated. The said Vicky and
Nageswararao are not among the accused present in the doc.
On the night with great difficulty, I could come down to my house. On the next day i.e., on 15.07.2007, I approached Police along with P.W.1. By that time P.W.1 gave report to Police. Police examined me and I stated aforesaid facts.
Common Judgment in Crl.Appeals 19 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Two months after the incident, the Judge called me to Police station which is situated near Mangalagiri Police station and enquired whether I could identify the culprits. I said I could identify the culprits. The Judge asked me to identify the culprits among 25 to 30 person. I identified the accused in the presence of the Judge.
Subsequently, the Police handed over all the aforesaid articles(ornaments) to me. I can identify those ornaments. M.O.1 is a pair of gold bangles. M.O.2 is a pair of ear hangings. M.O.3 is a locket. M.O.4 is saniamirza nose rings -50 in number. M.O.5 is two gold rings.
I came to know that the names of persons who obducted me are Choudary, Venkateswararao, Ramu,
Ramireddy, Narendra, Sankara Rao, Nagaraju,
Nageswararao, Vicky. I identified all of them.”
18.The contention of appellant is that from the evidence on record the offences under section 365 and 397 of I.P.C are not made out and trial Court erred in it’s reasoning. This Court finds no force in this contention.
19.The above referred evidence of P.W.3 shows that by force the accused took him away and was wrongfully confined. Such acts of accused against
P.W.3 is an offence under section 365 of I.P.C. The evidence of P.W.3 also shows that more than five persons jointly extorted M.O.1 to M.O.5 and cash of
Rs.600/- from him by showing deadly weapons/ knifes and beat him to get
Rs.6,00,000/- (Rupees six lakh only). All those acts of accused against P.W.3 is an offence Under section 397 of I.P.C. Therefore, the defence contention of
Appellants is negatived by holding that the observations and findings of learned
Trial Court are correct.
20.The next contention of Appellants is about the believability of evidence adduced against them stating that prosecution evidence cannot be believed. This
Common Judgment in Crl.Appeals 20 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 contention has to be examined in the light of the following facts and circumstances. At the trial and also in these appeals it is not the contention of the defence that P.W.3 and his family members have any influence over the Police machinery. It is not the contention of the appellant that investigating officers or any Police personnel and P.W.3 is inimically disposed of against the appellants.
Thus, the contention of appellant are to be verified on the sworn evidence so as to see whether such evidence makes a reasonable prudent person to believe truth of existence of fact or non existence of such fact.
21.Identity of Culprits:
The contention of appellants is that they are innocents and did not participate in this crime and the evidence of P.W.3 in identifying them in the
Court during the trial shall not be believed, since P.W.3 failed to identify A3 during the test identification parade and the said parade was in violation of Rule 34 of Criminal Rules of Practice which requires separate parade for each suspect. Appellants contend that learned trial court committed legal error in disallowing this contention.
22.In support of this contention, Appellants cited Rapani Laxman Vs. State of
A.P 2004 (1) ALT (Criminal) 154. In the said case accused was convicted for the offence Under section 395 of I.P.C. Their Lordships allowed the appeals and acquitted the accused on the principle that serious doubts remained and benefit of doubt shall be given to the accused. For reaching such conclusions the reasons are mentioned in the paragraphs 28, 29 and 30 which reads as below:
“28. “In that view of the matter I cannot but state that the evidence of P.W. 1 does not inspire confidence to believe it. The procedure adopted by the Sessions Judge also adds to the suspicion. It is also a factor to suspect the competence of P.W.1 to identify. Hence I am of the considered view that accused are entitled to be given benefit of doubt for the following reasons.
1. The identification proceedings are not conducted as per
Rule 34 of Criminal Rules of Practice and Circular Orders of 1990.
2. The property said to have been recovered have not seen the light of the day.
3. Non examination of the S.H.O, who received the
Common Judgment in Crl.Appeals 21 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 complaint and registered the FIR, is fatal to the version as it causes prejudice.
4. It is unsafe to act on the uncorroborated testimony of
P.W. 1 and when his wife and children have not identified the culprits. Moreover there is discrepancy in the evidence of P.Ws. 1 and 2 regarding the theft of Rs. 20,000/- which was kept in the almirah. P.W. 1 has stated that his wife knows about the culprits taking the money, whereas his wife denied about the commission of offence by the accused, as she did not see.
29. In view of the above factors I disbelieve the version of
P.W. 1 regarding the identity of person. Even otherwise when participation of two accused is disbelieved and they were acquitted, it throws doubt about the participation of the remaining accused in the absence of production of the property recovered. It does not constitute an offence u/s 395 IPC as it falls short of five persons, in view of the acquittal of others.
30. In that view of the matter there is no need to decide about the nature of offence committed. As this Court has come to the conclusion that prosecution has miserably failed to prove the guilt beyond all reasonable doubt for the alleged commission of offence including the offence u/s 395, IPC, the accused are entitled to be acquitted, and they are acquitted.”
23.In paragraph 18 their Lordship analyzed Rule 34 of Criminal Rules of
Practice and held that separate test identification parade has to be conducted by
Magistrate for each of the accused.
The above contention has to be verified on facts and Law.
P.W.3 identified appellants during his evidence in the year 2011, specifying the role played by each person during the year 2003. What P.W.3 deposed during the trial is the substantive evidence. Identifying the strangers, 5 years after the incident raises a doubt. To circumvent such possibility the test identification parade are held. Those proceedings are meant only to test the capacity of a witnesses in recognizing and remembering culprits of crime and also crime incident. In this case test identification parade conducted by P.W.11 and in his
Common Judgment in Crl.Appeals 22 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 evidence he exhibited the report which was prepared contemporaneously as per
Ex.P11. Oral evidence of P.W.11 and documentary evidence (Ex.P11) shows that P.W.3/victim identified A4, A5, A8 and A9. The time gap between crime incident and Parade conducted is less than two months and less than 15 days from the time of arrest of appellants. Then the question is whether there was any possibility for P.W.3 to see the culprits for a good amount of time to remember their faces and bodies. As seen from the evidence of P.W.3 he travelled with the accused in a car from place to place and also when he was unlawfully confined and they were conversent with P.W.3. These events continued from 11.07.2006 to 14.07.2006. Thus, for a period of three days he was seeing them. They did not cover their faces with anything. Thus, there is every reason to believe that P.W.3 was able to see and remember them. In the test identification parade P.W.3 identified culprits. That identification lends assurance to the Court to accept the evidence of P.W.3.
24.Rule 34 of Criminal Rules of Practice provided the procedure. It has not provided anything to follow, if the procedure is not followed. It is not provided that such parade is illegal or such proceedings cannot be believed. Appellants did not plea and did not suggest and did not show that they have suffered any prejudice by virtue of violation of Rule 34 of Criminal rules of Practice. There is nothing on record to think that because Rule 34 is violated, P.W.3 under the confusion and wrongly identified the culprits. The honesty of P.W.3 can be seen when he could not identify A3. If really P.W.3 was tutored he would have identified A3 also.
Learned Trial Court discussed all this at length and also ratio laid down by
Hon’ble Supreme Court of India in Dana Yadav @ Dahu Vs. State of Bihar 2002
(2) ALD Criminal 729 (SC) and found that violation of procedure has not affected the substance and credibility of P.W.3. The approach of learned trial court is right on facts and Law. This Court confirms that. Hence this contention of appellants is negatived.
25.Omissions in investigation:
Appellants contended that according to P.W.3 the accused abducted
P.W.3 in a car and that car was not seized and that omission falsifies the case of the prosecution. This contention of defence has no force. For instance, according
Common Judgment in Crl.Appeals 23 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 to P.W.3 he travelled in a bus and that bus was not seized. What is the legal consequence on the charges against accused. Cross examination of P.W.3 does not show that there was any suggestion that P.W.3 was not forced into a car. As long as that aspect of putting P.W.3 into a car is not challenged, the seizure or non-seizure of car has no bearing. Through the evidence of P.W.9 it was proved that A9 is the driver of that Scorpio car. That remained unchallenged. Therefore, non seizure of the vehicle by itself is not a cause to discard the evidence available on record. The investigating lapses has not given raise to suspect the evidence on record and it is no way caused prejudice to the defence. Hence this contention of appellants is negatived.
26.Recovery of M.O.1 to M.O.5:
Paragraphs 34, 35 and 36 of impugned judgment of the trial court read as below:
34. “Turning to seizure of M.Os.1 to 5 alleged to have been recovered from the possession of accused, it is the case of prosecution that on 22.8.2006 at 6 a.m., P.W.9 arrested accused 1 to 5 at Spencers Company, Yerrabalem and recovered a gold bangle from accused No.1; a gold bangle from accused No.2; a locket and 50 pieces of Sania Mirza nose studs from accused
No.3 under cover of Ex.P4 mediatornama; that on 26.8.2006 he arrested accused No.8 and recovered a pair of hangings under cover of Ex.P5-mediatornama; and that on 29.8.2006 he arrested accused No.9 and recovered a silver ring studded with red stones under cover of Ex.P6-mediatornama in the presence of P.W.6 and L.W.14 Shaik Nanne mediators. In those lines P.W.9 deposed on oath and his evidence is corroborated by the evidence of P.W.6.
35. The learned counsel for accused submits that P.W.6 is a stock mediator to police and therefore, his evidence is unworthy of credence.
36. Admittedly, P.W.6 is a retired Village Revenue Officer and at the time of alleged recovery of M.O.1 to 5, he was serving as Village Revenue Officer of Mangalagiri. In Kunduru Viniaya
Common Judgment in Crl.Appeals 24 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Reddy alias Fathima Reddy Vs. State of AP, 2006 (1) ALD (Crl.) 125 (AP) (DB), their Lordships held that Village Administrative
Officer was a public servant and was a respectable person of locality and therefore, he could not be termed as a ‘stock witness’.
Therefore, in the light of ‘ratio’, P.W.6 being a public servant, it shall be construed that he is a respectable person of locality and his evidence cannot be viewed with suspicion on the ground that he acted as mediator in several cases. In that view, recovery of
M.Os.1 to 5 from possession of accused by P.W.9 in the presence of P.W.6 and L.W.14-Shaik Nanne, cannot be brushed aside.’
27.This Court verified the evidence of P.W.6, P.W.9 and Ex.P4, Ex.P5, Ex.P6 and records that the narration of this evidence by the trial court is accurate. Now the question is believability of that evidence.
28.In this appeal it is challenged that P.W.6 is a stock mediator and seizure shall not be believed. Learned counsels for appellants placed reliance on Mallika
Ellaiah Vs. State of A.P. 2012 (1) ALD Criminal Page 925. That was a case of dacoity involving small amount of cash occurred on 19.02.2005 and was allegedly recovered from culprits after four months on 16.06.2005. In those circumstances their Lordship stated that the evidence did not inspire confidence as such small amount of cash could have been still possessed by the accused in that long span of time. It also observed that the dacoity occurred in dark and identification was not possible and hence case could not be believed.
29.It has to be tested on facts available in the case at hand. In this case there is no material on record to think that M.O.1 to M.O.5 Jewellery is planted by the
Police. There is no factual basis to say that P.W.6 witnessed who helps Police.
He was a Government Servant and he was not sub-ordinate to the Police and also P.W.3. Record does not show that this witness/P.W.6 was having animosity against accused to think that he deposed falsehood only to implicate the innocence. Merely he acted as mediator and helped the Police investigation in other cases is not a reasonable reason to think he deposed falsehood. Learned
Common Judgment in Crl.Appeals 25 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
Trial Court rightly negatived the defence contention. On analysis of material available on record this Court finds no reason to interfere with it.
30.It is to be mentioned here that through the evidence of P.W.3 and the
Doctor who testified as P.W.7 and also Ex.P7 wound certificate it is shown that
P.W.3 suffered injuries on his body. P.W.3 said that accused beat him. Defence fail to show as to why that evidence is to be discarded. Existence of injuries was not questioned by the defence. The oral evidence of Doctor and documentary evidence (Ex.P7) strengthens the evidence of P.W.3 about what he stated about these Appellants.
31. On a fresh consideration of evidence on record in the light of grounds urged in these appeals and arguments of learned counsels appearing for these appellants, this Court finds that the evidence on record showed the culpability of these appellants beyond reasonable doubt. The impugned Judgment on facts and Law is correct. The punishment imposed by learned Trial Court is not disproportionate. There are no reasons to interfere with the Judgment of learned
Trial Court. There are no merits in these appeals. For all the reasons stated above the impugned Judgment deserves confirmation on all aspects. All these appeals shall be dismissed.
Hence, points are answered against appellants.
32.In the result, Criminal Appeal No.262/2012; Criminal Appeal No.264/2012;
Criminal Appeal No.265/2012 and Criminal Appeal No.266/2012 are dismissed, and as a consequence of it, Judgment dated 06.08.2012 of learned Assistant
Sessions Judge, Mangalagiri in S.C.No.150/2010 with regard to finding guilt of
the Appellants / Accused Nos.4 and 5; Accused No.2; Accused No.8 and
Accused No.9 respectively as well as sentence imposed against the Appellants /
Accused i.e., each shall ‘undergo rigorous imprisonment for a period of five years (5 years) and further sentenced to pay a fine of Rs.3,000/- each (Rupees three thousand only) in default of payment of fine, they shall each under go simple imprisonment for a period of one (1) year. Further, the Appellants / Accused
Nos.4 and 5; Accused No.2; Accused No.8 and Accused No.9 respectively are found guilty for the offence punishable under Section 397 of I.P.C, according they
Common Judgment in Crl.Appeals 26 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012 are convicted under Section 235(2) CrPC and sentenced to undergo rigorous imprisonment for a period of seven years (7 years) each and further sentenced to pay a fine of Rs.3,000/- each (Rupees three thousand only) in default of payment of fine, each shall under go simple imprisonment for a period of one (1) year’ stands confirmed.
Free copy of Judgment will be furnished to the Appellants/Accused
Nos.2,4,5,8 and 9.
The remand period undergone by the Appellant / Accused No.2 i.e., from 22.08.2006 to 29.09.2006; from 06.08.2012 to 14.08.2012 shall be set off in terms of Section 428 of Cr.P.C.
The remand period undergone by the Appellant / Accused No.4 i.e., from 22.08.2006 to 28.09.2006 and from 06.08.2012 to 16.08.2012 shall be set off in terms of Section 428 of Cr.P.C.
The remand period undergone by the Appellant / Accused No.5 i.e., from 22.08.2006 to 29.09.2006 and from 06.08.2012 to 16.08.2012 shall be set off in terms of Section 428 of Cr.P.C.
The remand period undergone by the Appellant / Accused No.8 i.e., from 27.08.2006 to 29.09.2006 and from 06.08.2012 to 14.08.2012 shall be set off in terms of Section 428 of Cr.P.C.
The remand period undergone by the Appellant / Accused No.9 i.e., from 30.08.2006 to 21.09.2006 and from 06.08.2012 to 19.08.2012 shall be set off in terms of Section 428 of Cr.P.C.
Both the sentences inflicted against the Appellants / Accused Nos.4 and 5;
Accused No.2; Accused No.8 and Accused No.9 respectively shall run concurrently.
Fine amount was paid by A2, A4, A5, A8 and A9 in the Trial Court.
Typed to my dictation, corrected and pronounced by me in open Court, this the 1st day of November, 2024.
Sd/-V.A.L.Sathyavathi
II ADDITIONAL SESSIONS JUDGE,
GUNTUR
Common Judgment in Crl.Appeals 27 Fair Nos.262/2012; 264/2012; 265/2012 and 266/2012
APPENDIX OF EVIDENCE
No oral and documentary evidence is adduced on either side.
Sd/-V.A.L.Sathyavathi
II ADDITIONAL SESSIONS JUDGE,
GUNTUR
Copy to:
The Assistant Sessions Judge, Mangalagiri with record.
//True Copy//
II ADDITIONAL SESSIONS JUDGE,
GUNTUR