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1997(7) Supreme 602
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
M.K. Mukherjee & S. Saghir Ahmad, JJ.
Shabad Pulla Reddy & Ors. -Appellants
versus
State of Andhra Pradesh -Respondent
Criminal Appeal Nos. 761-62 of 1997
(Arising out of S.L.P. (Crl.) Nos. 2878-79 of 1986)
Decided on 20-8-1997
Counsel for the Parties :
For the Appellants : D. Prakash Reddy and G. Narasimhulu, Advocates.
For the Respondent : G. Prabhakar, Advocate.
(ii) Indian Penal Code, 1860-Sections 302/149 and 120B, 148, 449, 452, 460-Offence of rioting with murder-26 persons prosecuted for offences under Sections 120-B, 148, 449, 452, 460 and 302-Convictions of A17 to A22 confirmed by High Court-A26 acquitted for offence under Section 120-B-His conviction under Section 302/149 maintained-Appeals-Manner of occurrence proved on evidence of eye witnesses-issue of involvement of appellants-To connect A17 to A22 with crime, courts below relied on their identification in Court as corroborated by their identification in T.I. parade-Inordinate delay of 3 months in holding T.I. parades not explained-Alleged recovery of stolen articles after 3 months of incident from A17 to A21-Evidence of recovery unacceptable-Allegation that gun belonging to deceased recovered from possession of A22 not proved-A-26 confessed about a conspiracy to commit murder of deceased-He did not confess that he was a party to the murder-A 26 not named as one of the miscreants in FIR even when he was known to the informant-Order of convictions and sentences recorded against appellants not sustainable.
Held : Though the trial Court and the High Court accepted the evidence of such identification in Court as it was corroborated by the evidence of their identification in T.I. parade, we find it difficult to rely upon the same as no explanation - much less plausible - was offered by the prosecution for the inordinate delay in holding the T.I parades. As earlier noticed, the occurrence took place on July 11, 1981 and five of the above six accused persons (A-17 to A-21) were arrested on October 4, 1981 and the T.I. parades were held 3 months after their arrest. This unusual and unexplained delay in holding the T.I. parades makes it difficult for us to conclusively hold that after such long lapse of time the witnesses were still able to have a clear image of the accused in their minds and identify them correctly at the identification parades. So far as A-22 is concerned, he was arrested earlier - (on September 13, 1981) - and was identified in the T.I. parade by P.W.1 as one of the miscreants. He was also identified by Papaiah (P.W.10), who claimed to have seen him earlier in the day in question, going across the field armed with an axe. For the reasons earlier mentioned, we are also unable to accept the identification of A-22 by P.Ws. 1 and 10. The other evidence on which the prosecution relied upon - and both the learned Courts accepted to convict A-17 to A-21 -is the alleged recovery of gold chain (M.O. 5), a pair of gold bangles (M.O. 6), a torch light (M.O. 8), a gold ring (M.O. 3) and a pair of gold ear-flowers (M.O. 7) from them respectively, on October 4, 1981 when all of them were arrested. According to the prosecution all those articles either belonged to the deceased or to the members of his family. In our considered view, the evidence of recovery is too artificial to be believed. It seems strange that even after three months of the incident all of them were carrying a stolen article each - including a torch light. If really they had stolen such articles, at the time of the murder, it was expected in the fitness of things that they would dispose of them as early as possible - more so when the nature of articles was such that they could pass hands quickly. This apart, even if we proceed on the assumption that evidence regarding the identification of the articles and recovery thereof is acceptable, still then, no presumption can be drawn after such a long lapse of time that they were party to the murder itself. The most favourable conclusion that can be drawn for the prosecution from such recovery is that they dishonestly retained the stolen properties knowing them to be stolen but in absence of any charge framed under Section 411 I.P.C. and on their acquittal of the charge under Section 396 I.P.C., no order of conviction can be recorded against them. So far as A-22 is concerned, the allegation is that the gun belonging to the deceased along with cartridges was recovered from his possession, but then the only reliable evidence in support thereof is that those arms and ammunition were recovered from an open shed belonging to P.W.9 and not from him. It cannot, therefore, be said that the prosecution has been able to conclusively prove its case against A-22. Lastly, coming to A-26, we find that the prosecution relied upon his retracted judicial confession and some other evidence in corroboration thereof. On carefully going through the confessional statement we find that A-26 confessed about a conspiracy to commit the murder of the deceased, but did not at all confess that he was a party to the murder. In other words, so far as the incident that took place in the night of July 11, 1981 in which the deceased met with his death, the statement made by A-26 before the Magistrate is exculpatory. Once the confession made by A-26 is left out of consideration - as it must be in view of the acquittal of the charge under Section 120-B I.P.C. - there is no other substantive evidence to connect him with the offences in question. Incidentally it may be mentioned that though, admittedly, A-26 was a resident of the same village and was known to P.W.1 from long, he did not name him as one of the miscreants nor mention his name in the F.I.R. (Para 7)
(iii) CRIMINAL TRIAL-T.I. parade -Unusual and unexplained delay of 3 months in holding T.I. parade-Fatal to prosecution. (Para 7)
(iv) CRIMINAL TRIAL-Evidence -Evidence of recovery of stolen articles-Recovery effected after three months of the incident-Admissibility of evidence. (Para 7)
(v) CRIMINAL TRIAL-Evidence -Confession-Accused confessed about a conspiracy to commit murder of deceased, but did not confess that he was party to the murder-Admissibility of. (Para 7)
JUDGMENT
M.K. Mukherjee, J.-Leave granted.
2. In Sessions Case No. 48 of 1983 on the file of the Sessions Judge, Warangal 26 persons were initially placed on trial to answer charges under Sections 120-B, 148, 449, 452, 460 and 302 I.P.C. An alternative charge under Section 396 I.P.C. was also framed against them. During pendency of the trial A-12 and A-14 died while A-13 and A-25 absconded. Hence, the trial continued against the other twenty two. On conclusion thereof the learned Judge acquitted A-1 of all the charges and convicted the others as under :
(i) A-2 to A-11, A-15, A-23, A-24 and A-26 under Section 120-B I.P.C;
(ii) A-8, A-15 to A-22, A-24 and A-26 under Section 148 I.P.C;
(iii) A-15 to A-22 under Section 449 I.P.C.;
(iv) A-22 under Section 302 I.P.C. (simpliciter);
(v) A-8, A-15 to A-21, A-24 and A-26 under Section 302/149 I.P.C. and
(vi) A-2 to A-7, A-9 to A-11 and A-23 under Section 302/109 I.P.C.
For the convictions so recorded that were sentenced to different terms of imprisonment with a direction that the sentences shall run concurrently.
3. Against their convictions and sentences they preferred separate appeals in the High Court. In disposing of the appeals by a common judgment the High Court set aside the convictions of A-2 to A-11, A-15, A-16, A-23 and A-24 but confirmed those of A-17 to A-22. As regards A-26, his conviction under Section 120-B I.P.C. was set aside but that under Section 302/149 I.P.C. maintained. Assailing the above judgment of the High Court A-17 to A-22 and A-26 have filed these appeals which have been heard together and this judgment will dispose of them.
4. The prosecution case, to the extent it is necessary to be reproduced and in relevant for disposal of these appeals (now that the charge of conspiracy has failed and some of the accused have been acquitted), is as follows :-
(a) A-2 is the son of A-1. A-4 is the son-in-law of A-3. A-3 and A-24 are brothers. A-7 is the son of A-24. A-1 to A-8 and A-25 are the residents of Upparigudem village. A-10 and A-11, who are brothers, are residents of Modugulagudem. A-15 to A-23 are residents of different villages. Nookala Managamma (P.W.11), an issueless widow, adopted the deceased Nookala Narayan Reddy. The deceased also did not beget any children and, therefore, he adopted Nookala Ranjith Reddy (P.W.1) as his son. Smt. Rangamma, mother-in-law of P.W.11, had adopted A-1, son of her elder sister. The families of Rangamma and Mangamma possessed considerable properties in or around Upparigudem. Over the adoptions there were misunderstandings between the above two families which led to disputes regarding their properties. Later on the disputes were referred to arbitration and the arbitrators decided that P.W. 11 and the deceased should take 9/16th share and Rangamma and A-1 should take 7/16th share. In spite of the award, the disputes and differences continued and two factions were created: one led by the deceased and the other by A-1. To strengthen his faction A-1 brought A-24, a resident of Bojjannapeta village, to his village after his release from a murder case and appointed him as his Seradar. A-26, who was originally a resident of Gudur, was also brought by A-1 as his farm servant.
(b) In the night of July 10, 1981, A-12 and two strangers came to the house of A-24 and slept there. On the following morning i.e. on July 11, 1981, all three of them went to the sapota garden of A-24. A-2 to A-5, A-7, A-15, A-23, A-24 and A-26 also came and joined in the talks with A-12. At or about mid day A-24 asked Mathiah (P.W. 8), his farm servant, to bring lunch and he obliged. In the afternoon A-24 asked P.W.8 to bring two axes and 10 cart pegs. Accordingly P.W.8 brought them. Then A-12 asked P.W.8 to go towards Sankeesa bata saying that six persons would come and asked him to bring them. Accordingly, P.W. 8 went to sankeesa bata,
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