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The Public Prosecutor Vs. Baggu Rama Murti and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1761
AppellantThe Public Prosecutor
RespondentBaggu Rama Murti and ors.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......orderkondaiah, j.1. this appeal toy the state is directed against the acquittal of all the five accused of the charges levelled against them by the sessions judge, visakapatnam in sessions case no. 22 of 1970.2. the case for the prosecution as revealed from the evidence of witnesses is as follows:- all the accused, the deceased bangaraju and p. ws. 1 to 10 belong to jannavaram village, chodava-ram taluk in the district of visakhapatnam. a-l. a-2 and a-5 are brothers and a-4 is the son of a-3; a-3 and a-l married sisters. late bangaraju was the adopted son of p.w. 2, danthuluru china seetharamaraiu who is the elder brother of seetharama chandra raju (p.w. 1).3. six years prior to 12th january. 1970, the date of occurrence. a-3 was defeated by p.w. 1 in the gram panchayat election. on the.....
Judgment:
ORDER

Kondaiah, J.

1. This appeal toy the State is directed against the acquittal of all the five accused of the charges levelled against them by the Sessions Judge, Visakapatnam in Sessions Case No. 22 of 1970.

2. The case for the prosecution as revealed from the evidence of witnesses is as follows:- All the accused, the deceased Bangaraju and P. Ws. 1 to 10 belong to Jannavaram village, Chodava-ram taluk in the District of Visakhapatnam. A-l. A-2 and A-5 are brothers and A-4 is the son of A-3; A-3 and A-l married sisters. Late Bangaraju was the adopted son of P.W. 2, Danthuluru China Seetharamaraiu who is the elder brother of Seetharama Chandra Raju (P.W. 1).

3. Six years prior to 12th January. 1970, the date of occurrence. A-3 was defeated by P.W. 1 in the gram panchayat election. On the complaints Exs. P-l to P-3 preferred in May, 1969 by P.Ws. 1 and 2. A-2 who was the village munsif had been suspended for misappropriation of public funds. For the vacancy caused by suspension of A-2. the deceased and A-l applied. Ultimately the deceased succeeded in getting himself appointed as the village munsif. The appeal preferred by A-l to the higher revenue authorities was dismissed in the second week of December. 1969. The deceased was also appointed to the post of village Post Master in preference to the claims of the brother of A-3 and others. The deceased was elected as the president of the Co-operative Society of the village. Hence, there were ill-feelings and disputes between the accused on the one hand and P.Ws. l to 3 and the deceased on the other.

4. On January 12. 1970. P.Ws. 1 to 3 and the deceased went to Chodava-ram. The deceased deposited certain sums of money in the Taluk Office and State Bank as per the challans Exs. P-8 to P-10 during that day. After finishing their work. P.Ws. 1 to 3 took some tiffin in a coffee hotel. A-4 came to the deceased who along with P.Ws. 1 to 3 came out of the hotel and requested him to take him on his bicycle to his village. The deceased agreed to the request of A-4 and asked him to get the tyres of his cycle inflated. After A-4 getting the tyres of the cycle of the deceased inflated, all the five left the place together along with the Karnam, Madhava Rao and proceeded till the outskirts of Chodavaram where Madhava Rao left them. The deceased and A-4 went on the bicycle of the deceased a little earlier. P.Ws. 1 and 3 started on one cycle and P.W. 2 on another cycle. One Bojanki Yerukunaidu (P.W. 12) saw A-4 and the deceased going ahead of P.Ws. 1 to 3 on their cycles. P.Ws. l to 3_ who came behind the deceased and A-4 heard the cries of the deceased 'chanypest unnaru' when they reached a tree situate at a distance of 50 yards from the river Sarada. Immediately they got down their cycles and rushed to the river bed. It was about 8 P.M. with the help of a torchlight focussed by P-W. 3. P.Ws. 1 to 3 witnessed A-l to A-4 dragging the deceased in the river. A-l and A-3 were holding the right shoulder and A-2 was holding, the shirt lust behind the neck of the deceased. They were dragging the body of the deceased from West towards East until P.Ws. 1 to 3 came to a distance of 15 feet from them. Then the accused left the deceased and ran away towards the village Choutipalli. P.Ws. 1 and 3 chased the accused but in vain. They saw M. Kondadu (P.W. 9} and Sambadu (P.W. 10) coming from the southern bund, who claim to have seen the accused 1 to 3 running away. Thereafter, P.Ws. 1. 3. 9 and 10 reached the place where the deceased was lying injured and found him dead, P-W. 2. the adoptive father of the deceased was remaining at the scene. Though P.Ws. 9 and 10 were sent to the village to bring their people, no one came to the river bed where the dead body was lying. P.Ws, 1 to 3 found a stick (M.O. 1) and a bloodstained towel (M.O. 2) at the scene of offence. All the three of them went to the village and brought P.W. 13, the school master and P.W. 18. Apipala-raju the Karnam and others. P.W. 1 gave Ex. P-5, a report to P.W. 18. It was drafted toy P.W. 13.

5. On receipt of the report Ex. P-5 at about 3 A.M. on 13-1-1970. P.W. 22. the Sub-Inspector of Police. Chodavaram registered the case under Section 302, I.P.C. and issued the F.I-R. Ex. P-22 and sent express reports to all concerned. P.W. 22 and P.W. 24, the Circle Insipector of Police reached the scene of offence at about 6-15 A.M. After inspecting the scene M.O. 2, lying near the dead body was seized under a panchanama. The Chappals (M.O. 3) and bloodstained sand (M.Os. 9 to 13) and control earth (M.Os. 14 to 16) were also seized. P.W. 24 held the inquest over the dead body between 7 and 9-30 A.M. and examined P.Ws. 1 to 3 and prepared Ex. P-13, the inquest report. The dead body was sent through P.W. 19 the corpse constable to P.W. 20. the Medical Officer. Government Hospital. Chodavaram. who. on post-mortem examination, detected as many as 16 external and 4 internal injuries. He opined that the death was the result of shock and haemorrhage due to multiple injuries caused by a sharp weapon like knife injuring the great vessels of neck, trachea and right pleural' cavity of the lung.

6. At about 4 P.M. on January 13. 1971. A-l to A-3 were arrested by P.W. 24 in the presence of P-Ws. 13 and-14, A-2 gave a statement Ex, P-6 which led to the recovery of M.O. 8, a knife-as per mediator's report Ex. P-7, A-l and A3 denied any knowledge of the offence. A-2 gave Ex. P-29, a confessional-statement before P.W. 23, the Principal Judicial First Class Magistrate, Chodavaram on 16-1-1970. Ex. P-30 is the certificate appended by the Magistrate. A-5 was arrested by P.W. 22 on 14-1-1970. He was kept in police custody till 20-l-1970 and produced before P-W. 23 'on the same day. P.W. 23 had recorded Ex. P-34. the confessional statement of A-5-on 21-1-1970. Ex. P-35 is the certificate appended to Ex, P-34. A-4 was arrested by P.W, 22 on 25-2-70. After completing the investigation, the chargesheet was filed.

7. The prosecution examined as many as 24 witnesses and marked Exs. P-l to P-45 and M.Os. 1 to 16 in support of its case. P.Ws. 1 and 4 speak to-the motive part of the prosecution case. P.W. 5. the Talayari of the village deposes that he was asked by A-2 at about forenoon of the day of the occurrence as to where P.W. 1 and his son, the deceased have gone and that he informed A-2 that they have gone to Chodavaram. According to P.W. 6, A-2 was seen near the scene of offence in the evening. P.Ws. 7 and 8 depose that they have seen A-t to A-3 and A-5 near the scene of occurrence on that evening just an hour and half prior to the occurrence. P.Ws. 9-and 10 have been examined to speak to their witnessing A-l to A-3 going away from the scene a few minutes after the occurrence. P.Ws. 1 to 3 support the prosecution story relating to A-4 coming with the deceased on the latter's bii cycle a little ahead of them and their witnessing A-l to A-4 dragging the deceased in the river immediately after the occurrence and the accused running away.

8. The plea of the accused is one of denial. The confessional statements made by A-2 and A-5 have been retracted on the ground that they were forced and beaten by the police to make such statements.

9. The learned trial Judge found that there was no material to show that any of the accused had nurtured enmity or hostility towards the deceased for the commission of the offence. The evidence of the prosecution witnesses was not accepted and the confessional statements of A-2 and A-5 were not found to be true. Hence, all the accused have been acquitted of all the charges levelled against them. Hence this appeal.

10. The learned Public Prosecutor strenuously contended that the trial Judge has grievously erred in not accepting the testimony of P-Ws. 1 to 10 which is natural, cogent and corroborates in all material particulars. The acquittal of all the accused is. therefore, not justified. In any event, the appeal in respect of A-2 and A-5 must be allowed on the strength of the confessional statements when read with the statement of A-4 under Section 342, Cr.PC and the other corroboration found in the prosecution evidence.

11. Sri A. Rama Rao, the learned Counsel for the accused resisted the claim of the appellant contending inter alia that there is no merit in this appeal, that the confessional statements of A-2 and A-5 are neither voluntary nor true and that the statement made by A-4 under Section 342, Cr.PC cannot be used against the other co-accused,

12. From the evidence of P.W. 20 the Medical Officer, we must hold that the deceased met with the death at about 8 P.M. on the night of January 12, 1970 on account of the multiple injuries found on the dead body. The scene of offence also is not in dispute. The only question that falls for decision is whether the prosecution has established beyond doubt that it was the accused who inflicted the injuries found on the deceased-

13. Admittedly, there is no direct evidence. This is therefore, a case of circumstantial evidence. As the motive is relevant, we shall advert to the same. A-4 end tries deceased used to play Badminton in the place owned by the deceased. A-4 was the captain of the team consisting of the deceased also. P,W. 13 admits the aforesaid fact. As seen from the evidence of P.W. 18, the village karnam A-3 was the Vice-President when the deceased was the President of the Co-operative Society in the village and P.W. 18 was the Secretary. The evidence on record as pointed out by the trial Court shows that in spite of the conflict between P.W. 1 and A-3 on account of the panchayat elections held six years prior to the occurrence, they were on cordial and good terms on the date of the incident. If A-4 was a partisan and was inimically disposed towards the accused, he would not have approached the deceased at Chodavaram to take him on his bicycle. In these circumstances, we see no reason to disagree with the finding of the trial Court that there was no enmity or hostility for the accused towards the deceased for the commission of murder.

14. We are unable to find satisfactory evidence that the assailants were five or more for the attraction of the provisions of Section 147 or 148. I.P.C. Even according to the prosecution case, A-l to A-3 and A-5 were seen near the scene of occurrence on that evening by P.Ws. 6. 7 and 8. In view of the fact that the accused own lands nearby, their (presence on that evening alone cannot be considered to be an incriminating circumstance against them. The number of persons seen by P.Ws. 1 to 3 was stated to be only four. The trial Court, therefore, is perfectly justified in holding that the prosecution failed to prove that the accused formed themselves into an unlawful assembly or that they committed rioting. The charges relating to unlawful assembly and rioting punishable under Section 147 or Section 148, I.P.C. must fail.

15. The prosecution evidence has to be examined in respect of the individual overt acts. A-2 has been charged for committing murder of the deceased by stabbing him with a knife on the neck, throat, shoulders and chest. The circumstances relied upon by the learned Public Prosecutor to convict A-2 under Section 302, I.P.C. are as follows:

1. The confessional statement Ex. P-29 made by A-2 to P.W. 23.

2. The statement of A-4 under Section 342. Cr.PC

3. The confessional statement of A-5 which corroborates the confession of A-2.

4. The recovery of M-O. 8, bloodstained knife pursuant to the statement Ex. P-7 made to P.W. 24.

5. The seizure of M.O. 2. a towel which is stated by P.W, 15 to be belonging to A-2, at the scene of offence by P.W. 24.

6. The evidence of P.Ws. 1 to 3 to the effect that A-l to A-4 dragged the-deceased in the river bed.

16. We shall first consider the confession of A-2 before P-W. 23. As pointed out earlier, the confessions made by A-2 and A-5 before P.W. 23 have been subsequently retracted. Before considering Ex. P-29. the confessional statement, it is profitable and necessary to refer briefly to the law relating to a retracted confession and the statement made by an accused under Section 342 Cr.PC It is well-settled that a confession cannot be made use of to convict an accused unless the Court is fully satisfied that it is voluntary and true The Court must require corroboration in the case of a retracted confession. Corroboration must not only be of a general nature but must also be in respect of material particulars. There are 9 catena of decided cases on this aspect. but suffice it to refer to the following passage in Pyare Lai v. State of Raja, than : 1963CriLJ178 wherein the law on this subject has been succinctly laid down by Subba Rao, J. (as he then was), who spoke for the Court;

A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law. but is only a rule of procedure. It cannot even toe laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may in a particular case be convinced of the absolute truth of a confession and prepared to act upon it with' out corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession much less on a retracted confession, unless the court is satisfied that the retracted confession is. true and voluntarily made and has been corroborated in material particulai's.

See also Aher Raia Khima v. State of Saurasht.ra : 1956CriLJ426 and Subramanian Goundan v State of Madras : 1958CriLJ238 .

17. In the light of the aforesaid discussion, we shall examine whether the confessional statement Ex. P-29 made by A-2 to P.W. 23 was voluntary and true. P.W. 23. the Principal Judicial First Class Magistrate Chodavaram deposed that after following the requisite procedure, he recorded the confessional statement of A-2 at about 3-15 P.M. on January 16. 1970 in the Court-hall after sending away the police officers and the public He therefore appended the certificate Ex. P-30 to the statement made by A-2. He is a disinterested witness and nothing in his cross-examination has been elicited to discredit his testimony. On a reading of the evidence of P.W. 23. we are in entire agreement with the trial Court that the confessional statement of A-2 was voluntary and the same was not vitiated by any coercion or undue influence on the part of the police. Even if there was any threat, or coercion used by the police prior to A-2 being brought before the Magistrate there was no fear for him to state before the Magistrate that he was forced by the police to make such a statement.

18. The other ingredient that should be established for using the confessional statement of A-2 against him is that it was true. For a proper appreciation of the respective contentions of the parties in this regard, it is necessary to refer to the following material portion of Ex. P-29... Bangararaju is coming on cycle bringing Salapu Ramarao along with him. We saw both of them going, stood for ten minutes and got into the river. They stood there after crossing the river, that is after crossing the water. Bangararaju asked me 'why you have pome like this'. To nowhere, but coming from nearby I said. When we are talking while standing there. Satyam came there and beat Bangara Ra.iu on his shoulder with a stick. He fell down with that hit. Later I stabbed him with a knife. The boy ran away immediately when we beat Bangara Raiu. I stabbed 7. 8 times. Myself and Satyam went away into our village after dragging the corpse one or two feet to a side.

19. The aforesaid statement reveals that A-2 and A-5 alone went to their field near Sarada river and attacked the deceased after crossing the water in the river. It further shows that A-5 beat the deceased on his shoulder with a stick as a result of which he fell down and thereafter. A-2 stabbed 7 or 8 times with a knife and then A-4 ran away and A-2 and A-5 dragged the corpse one or two feet to a side. This version as revealed from the confessional statement of. A-2 does not fit in with the prosecution story. According to P.Ws. 1 to 3, they saw A-l to A-4 dragging the deceased in the river bed. The medical evidence does not corroborate the attack of A-5 with a stick on the shoulder of the deceased as the doctor found two contused injuries (injury Nos 15 and 16) on the body of the deceased-There was no second beating with a stick as per the confessional statement It is not elicited from the doctor that injury Nos. 15 and 16 could have beer caused by one blow. That apart, the doctor opined that injury Nos. 15 and could not have been caused by p blunt weapon like M.O. 1. the stick. He says thus:

I did not find any abrasion in injuries 15 and 16. The contusions mentioned in injuries 15 and 16 could not be caused by a weapon like MO. 1. If it is caused there should have been abrasions also.

20. This admission of P.W. 20, the doctor who conducted autopsy on the dead body of the deceased, is in conflict with the circumstance mentioned in the confessional statement that A-5 beat once the deceased on his shoulder with a stick. In the circumstances, we are of the firm view that the confessional statement of A-2. though voluntary, was not true and the same cannot be relied upon by the prosecution to convict him. As the confessional statement of A-5 also suffers from the infirmities pointed ou1 in respect of Ex. P-29. it does not in any way advance the prosecution case and hence, the same cannot be used as corroboration to Ex. P-29.

21. The next piece of evidence on which strong reliance has been placed by the learned Public Prosecutor, is the statement of A-4 under Section 342. Cr. P. C to the effect that himself and the deceased proceeded on a bicycle from Chodavaram ahead of P.Ws. 1 to 3 at about 7 P.M. on 12-1-70 reached Sarada river bed and were waiting, there for P.Ws. 1 to 3, that A-2 came there and talked to the deceased and A-5 armed with a stick came there, that A-2 and A-5 were walking behind him and the deceased, that A-5 beat the deceased with a stick as a result of which he fell down and A-2 stabbed him with a knife and that he ran away seeing the incident. Though the names of A-2 and A-5 were mentioned in his statement before the committal Court, he only refers in his statement before the trial Court to 'one person and another' but not A-2 and A-5.

22. Before examining the statement of A-4. it is profitable and necessary to refer briefly to the scope and effect of the statement of an accused under Section 342, Cr. P. C Section 342, Cr.PC is founded on the principle involved in the maxim 'Audi alteram par-tem'. The accused, therefore, must be heard on every fact and circumstance appearing in evidence against him before he is condemned. This section has been enacted not only in the interests of the accused but for the furtherance of Justice and to enable the Court to decide the question of the guilt or otherwise of the accused. The very object and intendment of this section, as indicated therein, is to enable the accused to explain any circumstances appearing in the evidence against him. To achieve the aforesaid purpose, the Court, at any stage of any enquiry, or trial, is empowered to Dut to him, without any warning, such questions as it may consider necessary. However, the Court shall Question him generally on the case after the examination of the witnesses and before he is called on for his defence. The questions under Section 342. Cr.PC should not be in the nature of cross-examination or with a view to fill the gaps in the prosecution evidence. The intendment and object of Section 342 Cr.PC as referred to above, being to provide an opportunity for the accused to explain the circumstances stated by the prosecution against him. the questions put to him thereunder must have relevancy to that object and must arise out of the evidence already adduced before the Court. Any questions not relevant or not pertaining to any circumstances in the evidence on record should not be put to the accused. Even if any such questions are asked, the accused is not bound to answer the same. The answers elicited from the accused to any irrelevant and unnecessary questions do- not bind him In other words, it is open to the accused to answer the questions put to him under Section 342. Cr.PC But his refusal of failure to answer such questions, or giving false answers shall not render him liable to punishment, though the Court and the injury. if any, may draw such inference as it deems just and proper.

23. The statement of an accused under Section 342, Cr, P. C. is not strictly 'evidence' within the meaning of Section 3 of the Indian Evidence Act, but it can be used against him to lend assurance to the evidence adduced in the case. The answers elicited from the accused under this section can be used for a collateral purpose. To out it differently, the statement can be used as a touch-stone to test the credibility of any ,piece of evidence adduced by the prosecution and to decide the guilt or otherwise of the accused. See State of Mysore v Hanumantha Reddi, 1962 Mad LJ (Crl.) 355 (Mys.), In Re Ramaswamy Nadar AIR 1965 Mad 385 : ((1965) 2 Cri LJ 366) Banwarilal v. The State AIR 1950 All 341 : (1956 Cri LJ 664) and Rajah Singh, in Re. (1963) 76 Mad LW 722. Hence. no. conviction can be based merely on the statement of an accused under Section 342, Cr. P. C as it is not strictly evidence vide Vijendrajit v. State of Bombay : AIR1953SC247 . We may notice Sub-section (4) to Section 342 whereunder no oath shall be administered to the accused when examined under Sub-section (1) thereof. However. Section 342-A provides for the examination of the- accused as a witness on oath at his own request in writing in disproof of the charges levelled against him. In cases where the accused prefers to examine himself under Section 342-A. he is liable to be cross-examined. The accused, while making a statement under Sub-section (1) to Section 342. is not however subject to any cross-examination.

24. When examined under Section 342. Cr.PC it is open to the accused person either to admit all or any of the facts and circumstances found against him in the evidence or deny the same. He may admit the commission of the crime with which he has been charged, in which case it amounts to his ad- mission of committing the offence. He may admit only certain facts and circumstances although he disputes the commission of the offence. In such cases, his admission in so far as those facts and circumstances are concerned, may be taken into consideration in assessing his guilt or otherwise. It must be noted that the statement of the accused under Section 342. Cr.PC sought to be used as an admission must be read as a whole and it is not permissible to dissect it into parts and use one such part against the accused. Where the statement contains two or more distinct and separate portions or parts. the admission pertaining to separate and independent matters contained in one of them alone may be relied upon by the Court in considering the guilt or otherwise of the accused. (See Karnail Singh v. State of Punjab AIR 1954 SC 204 : (1954 Cri LJ 580).) A confessional statement, however, may consist of exculpatory and inculpatory parts. In such a case, the inculpatory part of the statement of the accused can be accepted if, on the facts and in the circumstances of a given case, the exculpatory portion is found to be inherently improbable. (See Nishikant v. State of Bihar. : 1969CriLJ671 .)

25. The distinction between the confession of a co-accused and the statement of an accused under Section 342, Cr.PC must be kept in view. The confession of an accused involving himself and his co-accused in the commission of the offence, is admissible in evidence and the same may be taken into consideration to assess not only the guilt of the maker of such a confession but also his or her co-accused 'in a joint trial vide Section 30 of the Indian Evidence Act. However, the provisions of Section 342. Cr.PC do not indicate that any statement made by an accused thereunder will bind the other accused. The statement of an accused under Section 342, Cr.PC must, therefore, be confined to the incriminating circumstances found against him, as one accused is not bound in a joint trial to explain under this section an incriminating circumstance against his or ;her co-accused. This section does not permit an accused to give any statement incriminating the other co-accused. The statement of an accused under this section cannot be used in a joint trial against his or her co-accused in so far as the commission of the offence is concerned, though it may be taken into consideration for collateral purposes. (See In re Maruda-muthu. AIR 1931 Mad 820 : ((1931) 32 Cri LJ 1099) Tahsinuddin Ahmad v. Emperor. AIR 1940 Cal 250 : ((1940) 41 Cri LJ 563) and State Government. M. P. v. Hifzul Rahman AIR 1952 Nag 12 : (1952 Cri LJ 98).)

26. In the light of the foregoing discussion, we must hold that the statement of A-4 when examined in the committal Court and the trial Court, in so fair as it relates to the commission of the offence by A-2 and A-5, must be eschewed as the same cannot be used against his co-accused. That apart, his statement runs contra to the prosecution story relating to the incident. His statement, in so far as his accompanying the deceased on his bicycle on his way from Chodavaram to the village, ahead of F-Ws. 1 to 3 who were awaited at Sarada River bed may be taken into consideration in assessing the evidentiary value of P.Ws. 1 to 3. The prosecution story in so far as the deceased, P.Ws. 1 to 3 and A-4 going from their village to Chodavaram on the date of the occurrence on their personal business and A-4 and the deceased starting on one bicycle and P.Ws. 1 to: 3 going to the scene of offence some time later may be true. However, the evidence of P.Ws. 1 to 3 that A-l to A-4 were dragging the deceased in the river bed runs contra to the confessional statement of A-2 as well as the statement of A-4 under Section 342. Cr.PC The retracted confessional statement of A-2 must be not only true and voluntary but should find corroboration in material particulars from the other prosecution evidence Even if the statement of A-4 that P.Ws. 1 to 3 were awaited at the scene is accepted, there is no credible and trustworthy evidence that they arrived at the scene when some of the assailants were dragging the deceased. On a careful perusal of the evidence of P.Ws. 1 to 3, we are not persuaded to agree with the prosecution that they reached Sarada river bed when the assailants were dragging the deceased immediately after the occurrence. It may be noticed that according to the testimony of P.Ws. 1 to 3. the incident had taken place within a short time, i.e., two to five minutes. They might have arrived at the scene somewhat later than what they tried to state. If they had come a bit Late, they could not have seen the assailants. The presence of P.Ws. 9 and 10 immediately after the occurrence also appears to be highly improbable. The names of P.Ws. 9 and 10 were not mentioned in Ex. P-5 purported to have been given by P,W. 1 at about 11 P-M. That apart, we notice a material development in the version of P.Ws. 1 to 3 at the trial. In Ex. P-5, it was stated that as soon as they heard the cries of the deceased that he was being killed, they got down from the cycles and focussed a torchlight and saw A-l to A-4 dragging the deceased. Ac- cording to their evidence at the trial, they went to some distance in the river and then only focussed the (battery light from a distance of 20 to 25 feet and saw A-l to A-3 dragging the deceased and A-4 walking by their side. This development is very material and assumes importance in view of the fact that the incident took place on the night of Panhami after Amavasya, As the distance .from the place where they focussed the torch light, as stated in Ex. P-5, is more than 60 to 70 yards it would be practically impossible for them to identify .the assailants with the help of a torchlight Further, the torch light has not even been seized by the police and marked as a material object. We are also not impressed with the evidence of P.Ws. 1 to 3. Hence, the retracted confession cannot be acted upon not only on the ground that it is not true but also that there is no corroboration on material particulars.

27. The next incriminating circumstance relied upon by the appellant is the seizure of M.O. 2. P.W. 15, a washerman, has been examined to prove that M.O. 2. the towel, belonged to A-2. His evidence, in our view, is not of any evidentiary value as he has admitted in his cross-examination that it is the only .towel that was placed before him for identification. We cannot. therefore, place any reliance upon the testimony of P.W. 15 to hold that M.O. 2 belonged to A-2.

28. The other circumstance is the recovery of M.O. 8, bloodstained knife. We have perused the evidence of P. W: 24 and the other material on record pertaining to the recovery of M.O. 8. We are not inclined to accept the testimony of P.W. 24 relating to the recovery, as 'the same is not free from doubt. In the 'Circumstances, we have no hesitation to hold that the learned trial Judge has rightly acquitted A-2 of the charge of murder on the ground that the prosecution failed to prove his guilt beyond all doubt.

29. This brings us to examine the prosecution case in so far as A-5 is concerned. The Court below. for reasons more than one. has rightly acquitted A-5 of all the charges levelled against him. Firstly, we do not find his name in the First Information Report Ex. P-5. Secondly. P.Ws. 1 to 3. 9 and ,10 do not mention his name. As pointed out earlier, the confessional statement of A-5, though voluntary, is not true and it is not corroborated by other evidence in material particulars.

30. In so far as A-l. A-3 and A-4 are concerned, there is no satisfactory evidence to establish their guilt.

31. For all the reasons stated, we must hold that the learned trial Judge has rightly acquitted the accused of all the charges levelled against them.

32. In the result, the appeal fails and is dismissed.


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