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2009 Supreme(SC) 1289
Supreme Court of India
S.B. SINHA & CYRIAC JOSEPH
Pantangi Balarama Venkata Ganesh & Another
Versus
State of Andhra Pradesh & Another
Criminal Appeal Nos. 173 of 2004 & 174 of 2004
Decided on: 23-07-2009
For the Appearing Parties:A. Sharan, ASG, Rajendra Sachchar, Sr. Advocate, A. Dasharatha, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, P.K. Dey, Amit Anand Tiwari, B.K. Prasad, P. Parmeswaran, Pramod Swarup, Advocates.
Headnote:
Indian Penal Code,1860 - Section 149 - Criminal Procedure Code,1973 - Section 161 - Evidence Act, 1872 - Section 45 - offence of murder- punishable - Evidence Act, 1872 - Section 45 - place known as Markapur on the same date to attend a function - He was to attend two more functions in the afternoon in town of Ongole - came to invite him to attend functions to be at Islampet in town - While he was in his bed room PWs went inside the bedroom and at same time PW 13 also went inside room - gunman was standing outside door - While all of them were coming out from the bedroom found four-five persons having pistols standing there was said to be having gun in his hand assailants fired at Subbarama Reddy and his gunman are also said to have sustained bullet injuries was identified as a person wearing pink coloured shirt - gunman allegedly fired shot Pursuant thereto appellant sustained bullet injuries - They escaped in a white Ambassador Car bearing registration –Held, Case not only the appellants presence has been admitted that he is member of Peoples War Group also remains undisputed - His participation in crime with reference to the pink coloured shirt worn by him and his arrest immediately after the occurrence in an injured condition recovery from him of the pistol and the two cartridges and evidence of DNA Expert and the Ballistic Expert must be held to be sufficient to prove his participation in commission of the offence of murder of deceased We are not oblivious of the fact that the experts used the term similar and not `identical - For purpose of this case it may not be of much consequence as this court has not taken into consideration evidence of DNA Experts alone for the purpose of recording a judgment conviction - It has been considered alongwith the other evidence prosecution case has been considered as a whole - Cumulative effect of evidences adduced before the learned trial judge have been taken into consideration for the purpose of arriving at a finding of guilt against the appellant - Court although should have dealt with the matter at some more details but keeping in view the fact that it recorded judgment of acquittal it difficult to opine that another view is not possible - He was arrested after the occurrence from a railway platform that he was the driver of the car was sought to be proved however stated that he was arrested on same day which was not also could not testify identity of accused - No identification parade was which could have been unlike the case of accused - He was not in hospital or at some other place recovery has been made from him evidence of is shaky as she stated that she had not seen tenants whom the accused used to visit by coming in an Ambassador car - Appeal dismissed
Judgment
S.B. SINHA, J.
1. Magunta Subbarama Reddy (for short Subbarama Reddy) was a Member of Parliament from Ongole Constituency in the State of Andhra Pradesh. He had a gun man, named Ch. Venkataratnam. Subbarama Reddy was a Philanthropist. He established 24 Colleges in the Prakasam and Nellore Districts of Andhra Pradesh. He otherwise donated a huge amount to a number of institutions. He was a resident of Bhagyanagar in the town on Ongole.
2. Subbarama Reddy reached Ongole on 1st December, 1995. He went to a place known as Markapur on the same date to attend a function. He was to attend two more functions in the afternoon in the town of Ongole. PWs. 2 and 3 came to invite him to attend the functions to be held at Islampet in the town of Ongole. While he was in his bed room, PWs. 1 to 3 went inside the bedroom and at the same time PW 13 also went inside the room. Ch. Venkataratnam, gunman, was standing outside the door. While all of them were coming out from the bedroom of Subbarama Reddy, PW 1 found four-five persons having pistols standing there. Pantangi Balarama Venkata Ganesh, A-1 was said to be having a gun in his hand. The assailants fired at Subbarama Reddy and his gunman. PWs. 1 and 2 are also said to have sustained bullet injuries. A-1 was identified as a person wearing pink coloured shirt. The gunman allegedly fired a shot.Pursuant thereto appellant sustained bullet injuries. They escaped in a white Ambassador Car bearing registration No. AAK-7041.
3. One J. Srinivasa Rao, an Armed Police Constable, per chance, came near the place of occurrence and witnessed the assailants escaping in an Ambassador Car. However, the assailants made their escape good.
4. Accused No.1 was arrested on the same day from a cashew garden with a bullet injury in his stomach. He was arrested and sent to hospital for treatment.
5. Subbarama Reddy died at 1600 hours while his gunman Ch. Venkatarantam died at 1800 hours on the same date i.e. 1st December, 1995. Accused No.2 was, however, arrested on 15th December, 1995 from Uppugunduru railway station.
6. FIR was lodged by PW-1, Tatirparthi Subba Reddy, on 1st December, 1995 at about 1800 hours.
7. Initially eight persons were made accused. Two of them are said to have died. Four having absconded could not be put on trial.
8. After the arrest of accused No.1 he made a declaration which was treated to be a dying declaration; the correctness whereof is not in question.
9. It is also not in dispute that a pistol with two live rounds were recovered from accused No.1. They were sent for scientific examination. D.N.A. test was conducted. Dr. G.V. Rao, who was examined as PW-46, submitted a report,opining:-
"Result of examination :
The DNA profile of exhibits 1, 2, 3 & 11 were tallying with each other and are from one and the same source. Exhibits 1, 2, 3 & 11 do not tally with the rest of the exhibits.
Exhibits 4, 5, 6, & 7 were tallying with each other and are from and the same source. Exhibits 4, 5, 6 & 7 do not ally with the rest of the exhibits.
Exhibits 13, 14 & 15 are tallying with each other and are from one and the same source.
Exhibits 16 & 17 are tallying with each other and are from one and the same source."
10. A pink colour shirt was seized from the abandoned car. The blood stains on the shirt was found to be matching with the blood group of accused No.1.
11. One Shri G. Raj Gopal Reddy, an Assistant Director of State Forensic Science Lab carried out an investigation in respect of the pistol and the cartridges seized, which were marked as MO 16 and MO 17. He stated that catridge cases item 6 (MO 18) and spent bullets of item 7 and 35 (MO 19 and 16) must have been fired from item 1 (MO 23).
12. Accused No.2 was said to be the owner of Ambassador Car No. AAG- 8300. He allegedly had changed the number plate of the car to AAK – 7041 which was said to have been used by the accused for the purpose of escape. PW-9, N. Subbayamma; PW-10, Ch.Laxminarsimhan, PW-11, Yada Srinivasa Rao a
