JUDGMENT
Ramesh Madhav Bapat, J.
1. The above case of murder was investigated by the Deputy Superintendent of Police, Special Police Establishment, Central Bureau of Investigation, Special Investigation Team, Madras for murder of two persons firstly Deceased No. 1 named Magunta Subbarama Reddy, who was a Member of Parliament, Ongole (hereinafter called as “D-1”), and was elected on Congress-I Ticket in the year 1991 from Ongole Constituency, Prakasam District, Andhra Pradesh and secondly his gunman named Ch. Venkataratnam (hereinafter called as “D-2”) who was killed along with D-1 and causing injuries to P.Ws. 1 and 2 during the course of same transaction by the accused.
Initially eight persons were shown as accused in the charge sheet. The case against A-5 and A-8 got abated as they died before the commencement of the trial. The case against A-3, A-4, A-6 and A-7 was separated, as they could not be arrested. The trial was conducted only against A-1 and A-2 being the appellants herein.
2. The case of the prosecution was that there was a conspiracy in between A-1 to A-8. A-2 was the driver of the vehicle. A-1 participated in committing the offence along with the other accused, who were yet to be tried, as they were absconding. On evidence the learned Judge found A-1 and A-2 guilty of all the charges levelled against them. A-1 was convicted and sentenced to suffer imprisonment for life on two grounds for committing the murder of D-1 and D-2 for the offences punishable under Sections 302, 120-B, 449, 307, read with Section 149, IPC and under Section 27(2) of Arms Act but no separate sentences were passed. A-1 was further convicted and sentenced to suffer R.I. for one year for the offence punishable under Section 147, IPC. A-1 was further convicted and sentenced to suffer R.I. for two years each for the offences punishable under Section 148 and 506, IPC. A-1 was further convicted and sentenced to suffer R.I. for seven years for the offence punishable under Section 397, IPC. He was further convicted and sentenced to suffer R.I. for five years for the offence punishable under Section 25(1-A) of Arms Act.
A-2 was convicted and sentenced to suffer imprisonment for life each for the offences punishable under Sections 302, 120-B, 302 read with Section 149 on two counts, 307 read with Section 149, IPC on two counts. He was further convicted and sentenced to suffer R.I. for one year for the offence punishable under Section 147, IPC. He was further convicted and sentenced to suffer R.I. for seven years for the offence punishable under Section 397, IPC. He was further convicted and sentenced to suffer R.I. for two years for the offence punishable under Section 506, IPC and he was further convicted and sentenced to suffer R.I. for five years for the offence punishable under Section 25(1-A) of Arms Act. All the sentences imposed against A-1 and A-2 were made to run concurrently. Aggrieved by the said order of conviction and sentence, the accused-appellants herein have filed the present appeal.
3. The prosecution story can briefly be narrated as follows : It is in the evidence of the prosecution witnesses that D-1 Magunta Subbarama Reddy was a Member of Parliament from Ongole Constituency. During his tenure, he established 24 Colleges in Prakasam and Nellore Districts and he was a Philanthropist. He was a big businessman and he was very popular among the public. He was residing in the 3rd lane of Bhagyanagar, Ongole Town.
On 1-12-1995 the deceased returned from Markapur after attending some functions and in the afternoon he had to attend two more functions in Ongole Town. P.Ws. 2 and 3 came to invite the deceased Subbarama Reddy to attend the function to be held at Islampet, Ongole. While D-1 was in the bedroom, P.Ws. 1 to 3 went inside the bedroom and after some time. P.W. 13 also went inside the bedroom. All of them coming out of the bedroom, D-2, who was the gunman of D-1, was standing at the entrance and P.W. 1 saw 4 or 5 members having pistols and among them A-1 was having a gun. The assailants were firing on both the deceased and P.Ws. 1 and 2. P.Ws. 1 and 2 sustained bullet injuries and some of the persons were firing at the door curtains, walls and in the air. P.Ws. 1, 2, 7 and 13 alleged to have identified A-1 as he was wearing pink coloured shirt, which was marked as M.O. 10. It is also stated by the prosecution witnesses that one of the assailants, who was wearing pink coloured shirt, had sustained bullet injury and all of them escaped in a white Ambassador Car bearing No. AAK 7041.
It is further stated by the prosecution that one Sri J. Srinivasa Rao, Armed Reserve Police Constable, happened to a chance witness, who came to the scene of offence just then and saw the assailants escaping in an Ambassador Car. D-2 was the gunman of D-1. He was in possession of 9 mm pistol. Ultimately the assailants were successful in going away from, the scene of offence.
During the course of investigation, A-1 and A-2 were arrested. A-1 was arrested in a cashew garden, who had sustained bullet injury to his stomach. On his arrest he was carried to the hospital for treatment. D-1 and D-2 died on the spot. The investigation continued and after collecting the requisite material, the charge sheet was filed.
4. The defence of the accused is one of total denial.
5. In order to bring guilt to the home of the accused, the prosecution led the evidence of P.Ws. 1 to 58. Documents produced and proved by them were marked as Ex. P-1 to P-117. Certain documents produced and proved by the witnesses were marked as Exs. X-1 to X-5. Certain exhibits were marked on behalf of the defence as Exs. D-1 to D-6, the material objects were marked as M.Os. 1 to 167.
Out of the witnesses examined, P.Ws. 1 and 2 happened to be local Congressmen, who were at the scene of offence and they had visited the guest house of D-1 to invite him for some functions. During the course of the transaction of shooting on D-1 and D-2, these two witnesses were also injured. P.Ws. 3 and 4 are also local Congressmen, who were also at the scene of offence. P.W. 5 is the second gunman of D-1. He was in the compound of the building when the offence took place. He is a witness after the firing took place and he saw the accused running away from the scene of offence. P.W. 6 is the follower of D-1, who has entered into the compound of the building at the time of taking place of the offence. He was also a witness after the incident. P.W. 7 is the Office Manager of D-1. He was present in the building when the offence took place. He was examined to corroborate the evidence of P.Ws. 1 to 4. P.W. 8 happened to be the owner of the building where the Office of D-1 was established and he himself living in the house on the opposite side of the road. He was a witness to the get away of the assailants. P.W. 9 is the owner of the house rented by the conspirators. P.W. 10 happened to be the Traffic Police Constable. He speaks about the get away car breaking down at the intersection of Kurnool Road on the National Highway. He speaks about the inmates of the car getting down and forcibly taking away another car coming along the road. P.W. 11 is the owner-cum-driver of the second car, which has been taken away by the assailants at gun point. P.W. 12 is the Police Constable of Chinnaganjam Police Station, who speaks of unsuccessfully trying to Stop the second car while the assailants were fleeing in it. P.W. 13 is the former M.L.A., who is present at the time Of killing the deceased at the scene of the offence. P.W. 14 is the Doctor at Apollo Hospital, Madras, who has operated upon P.W. 2. P.W. 15 is the Civil Assistant Surgeon at the District Hospital, Ongole, who has examined P.Ws. 1 and 2 as well as the two deceased persons. P.W. 16 is the Surgeon at the Apollo Hospital, Hyderabad, who has operated upon P.W. 1. P.W. 17 is the panch witness, who has attested the inquest panchnama, when the Police conducted it over the dead body of D-1. P.W. 18 is the panch witness, who has attested the inquest panchanama, when the Police have conducted it over the dead body of D-2. P.W. 19 is the panch witness when A-1 has been arrested in his presence. He did not support the prosecution and he was declared hostile. P.W. 20 is the witness to the search and seizure of second car. He has attested the panchanama Ex. P-33.
P.W. 21 is the Mandal Revenue Officer, Ongole, who is a panch witness. He attested the panchanama of the scene of offence where the offence took place, which was marked as Ex. P-36. P.W. 22 is the witness when the Police have seized the first car under the panchanama Ex. P-38. This witness also did not support the prosecution and he was declared hostile. P.W. 23 had acted as a panch when the police seized the bloodstained clothes of the deceased under panchanama Ex. P. 39. P.W. 24 is the Mandal Revenue Inspector. He had acted as a panch when the C.B.I. Officers took the blood samples and fingerprints on 29-1-1996. The said panchanamas were marked as Ex. P-6 and Ex. P-40. P.W. 25 is the S.I. of Police, I Town Police Station, Ongole, who has recorded the first Information Ex. P-1 given by P.W. 1 on the strength of Ex. P-1, the investigation machinery was set in motion. P.W. 26 is the Trainee D.S.P., at Ongole. He prepared the panchanama of the scene of offence Ex. P-31 and the panchanama of the dead body of D-2 as Ex. P-30. He seized some of the material objects from the scene of offence. P.W. 27 is the S.I. of Police, Ongole Taluk Police Station. He registered the FIR Ex. P-45 concerning the stealing of second car by the assailants upon the complaint of P.W. 11. P.W. 28 is the Inspector of Police, Ongole. He seized M.O. 14 from the scene of offence where earlier P.W. 26 had conducted search and seizure. He also conducted inquest over the dead body of D-1. He had recorded the statements of P.Ws. 1, 3, 4, 13 etc., P.W. 29 is the Regional Transport Officer, Ongole. He inspected the car used by the assailants and submitted his report Ex. P-49. P.W. 30 is the Inspector of Police, Chirala. He arrested A-1 in a cashew garden and alleged to have recorded the statement given by A-1 and in pursuance of his statement, A-1 alleged to have discovered material objects. The said panchanama was marked as Ex. P-51. P.W. 31 is the Inspector of Police, Inkollu, who has seized the abandoned second car and other articles under panchanama Ex. P-36. On 15-12-1995 he arrested A-2 and made seizures from him at his instance under Ex. P-35. P.W. 32 is the Inspector of Police, CID, Nellore, who speaks of collecting the bullet recovered from the body of P.W. 2 by the Doctors at Apollo Hospital in Madras. P.Ws. 33 and 34 are Head Constables, who have handed over the dead bodies of the deceased to their relations after the post mortem examination. P.W. 35 is the D.S.P., Ongole. He , had conducted the investigation in the initial stages till it was made over to CBI.
P.W. 36 is the Assistant Secretary of R.T.A., Krishna District, who has identified the chassis number and the owner of the get away car. P.W. 37 is the Head Constable of Armed Reserve, Ongole, who speaks about the second gunman (P.W. 5) being appointed as such. P.W. 38 is the D.S.P., CBI, Madras, who has recorded the statement of P.W. 16. P.W. 39 is the Surgeon, who has operated A-1. P.W. 40 is the Inspector of Police, CBI. He examined some of the witnesses and collected blood samples of A-1 and A-2 when they were in Central Prison, Rajahmundry to which their identity cards Exs. P-75 and P-76 were seized. P.W. 41 is the Doctor at Government Hospital, Guntur, who has treated A-1 initially. P.W. 42 is the R.T.A., Guntur, who speaks about the ownership and particulars of chassis number of the car bearing R.T.O. No. AAG 8300. P.W. 43 is the Property Clerk, who is working in the II Addl. Munsif Magistrate’s Court, Ongole, speaks about the deposit of material objects in the Court. P.W. 44 is the District Magistrate, Prakasam District, who has given sanction for prosecution under Section 39 of Arms Act. P.W. 45 is the Prison Doctor, Central Jail, Rajahmundry, who speaks about the taking of blood samples of A-1 and A-2. P.W. 46 is the DNA Fingerprints Expert. P.W. 47 is the Inspector of Police, CBI. He examined some witnesses and took blood samples of P.W. 2 for DNA test. P.W. 48 is the Inspector of Police, CBI, who has taken the blood samples of P.W. 1 for DNA test. P.W. 49 is the Ballistics Expert. P.W. 50 is the Asst. Director of F.S.L., Hyderabad, who has tested the blood group of the samples and given a report Ex. P-45. P.W. 51 is the Superintendent of Police, Prakasam District. P.W. 52 is the photographer. He took the photographs of the scene of offence at the instance of the Police. P.W. 53 is the photographer. He took the photos of the house rented by the accused. P.W. 54 is the Videographer, who has video-graphed the scene of offence. P.W. 55 is the Judicial Magistrate of First Class, who has recorded the dying declaration of A-1. P.W. 56 is the Forensic Expert. He performed autopsy over the dead bodies of the deceased. P.W. 57 is the Inspector of Police, CBI, who has assisted the Investigating Officer. P.W. 58 is the Investigating Officer, CBI. Thus, it can be seen from the role played by each of the prosecution witnesses, we can say that P.Ws. 1, 2, 7 and 13 were the eyewitnesses when the alleged firing took place.
6. In order to prove that D-1 died homicidal death, the prosecution examined P.W. 28, the Inspector of Police, Ongole, who had conducted the inquest over the dead body of D-1 in the presence of P.W. 17. Ex. P-29 is the inquest report. After the inquest was over, the dead body of D-1 was sent to the Doctor, P.W. 56, who happened to be working as a Forensic Medicine Professor at Guntur Medical College, Guntur. On receipt of the requisition from the Police, he had conducted autopsy over the dead body of D-1 and noticed the following injuries.
“1. One firearm wound is present 3 cms to the right of the pit of the stomach. Entrance oblique, inverted 1 cm diameter. Blackening tattooing present, passed through the skin, fascia, muscles, small intestines, inter space between the third and fourth lumbar vertebra, muscles, fascia and skin of back of abdomen. Exist round 1.5 cms. Diameter direction backwards downwards and leftwards.
2. One firearm wound is present 10 cms to the left of navel, oblique, beveling towards the left. Entrance 1.5 cms x 1 cm inverted tattooing present. Passed through the skin, fascia and fact and ended at the left loin. Exist 1.5 cms. Diameter averted. This wound is superficial and has not entered the abdominal cavity.
3. One abrasion is present over the middle of back of right side of chest right oblique 5 x 1 cms. No scab.
4. One abrasion is present just below injury No. 3 horizontal 4 x 1 cms. No scab.”
The Doctor has opined that the cause of death of D-1 was due to shock and haemorrhage due to firearm multiple injuries. Ex. P-59 is the post mortem certificate issued by him in respect of D-1. The Doctor further stated that all the injuries are ante mortem in nature and are sufficient to cause the death of D-1. The cause of death was due to shock and haemorrhage due to firearm multiple injuries. He has further opined that the range of fire is within 18″. Injuries 3 and 4 are possible by a fall or a contact with a blunt surface. Injury No. 1 is sufficient to cause death in the ordinary course of nature.
Considering the evidence led by the prosecution on the point of homicidal death, we do hold that D-1 did die homicidal death. In order to prove that D-2 died homicidal death, the prosecution examined P.W. 28, the Inspector of Police, Ongole, who had conducted the inquest over the dead body of D-2 in the presence of P.W. 18. Ex. P-30 is the inquest report in respect of D-2. After the inquest was over, the dead body of D-2 was sent to the Doctor, P.W. 56, who happened to be working as a Forensic Medicine Professor at Guntur Medical College, Guntur. On receipt of the requisition from the Police, he had conducted autopsy over the dead body of D-2 and noticed the following injuries.
“1. One fire arm wound is present over the middle of outside of left arm. Round 1 cm diameter. No scorching, blacking tattooing. Passed in the right word, downwards and backwards direction, passed out of the inside of the left arm, entered the left lateral side of the chest 15 cms. Below the axilla, passed through the skin fascia, muscles, left seventh inter costal space, left lung, stomach, liver, right ninth inter costal space, muscles, fascia and skin of the lower part of right lateral side of the chest. The exist wound 1.5 cms. Diameter averted.
2. One firearm wound is present over the pit of the stomach round inverted 1 cms. Diameter. No scorching, blacking, tattooing. It has passed through the skin, fascia, stomach, disphragm, right lung, eleventh inter costal space, muscles, fascia an skin of lower part of back of right side of chest. Exist 1.5 cms. Diameter averted backwards, rightwards, upwards. The above injuries were red, fresh and ante mortem in nature.”
The Doctor has opined that the cause of death of D-2 was due to shock and haemorrhage due to firearm injury Ex. P-60 is the post mortem certificate issued by him respect (in) of D-2, he has further opined that the range of fire is more than 18″. Injuries are sufficient to cause death in the ordinary course of nature.
Considering the evidence led by the prosecution on the point of homicidal death, we do hold that D-2 did die homicidal death.
7. Now we proceed to scrutinize the evidence of eye-witnesses P.Ws. 1, 2, 7 and 13 so as to ascertain whether the accused-appellants herein are responsible for causing the death of D-1 and D-2.
The evidence of P.W. 1 shows that he is a resident of Ongole. He was knowing D-1 Magunta Subbarama Reddy and D-2 his gunman C. V. Ratnam. He knew D-1 since 1991. D-1 was a native of Nellore District.
The evidence of P.W. 1 further shows that in the year 1991 D-1 contested for the Parliamentary Constituency from Ongole on Congress-I Ticket. P.W. 1 also belongs to Congress-I. The deceased was a businessman in steel and liquor. He was a Philanthropic man. He established about twenty four colleges in Prakasam and Nellore Districts. He was also a Treasurer of A.P. Congress. He was having an Office in the 3rd lane of Bhagyanagar, Ongole. He further states that P.W. 8 is the owner of the said house. It was taken on lease by D-1.
The evidence of P.W. 1 further shows that one Nagabhushanam, who has been examined as P.W. 7, was the Personal Assistant of D-1. One Balakrishna Reddy, P.W. 6, and others used to attend the office of D-1. D-1 has a separate bedroom in the office. There was a visitors’ room. In between the bedroom and the visitors’ room, there is a corridor. The bathroom was attached to his bedroom in between visitors’ room and bedroom.
The evidence of P.W. 1 further shows that on 1-12-1995 D-1 came to Ongole by Charminar Express along with his gunman. P.W. 7 Nagabhushanam, P.W. 2 Penchal Reddy and others received him at the railway station and he was brought to the Office. According to the evidence of P.W. 1, on that day he also went to the Office-cum-residence of D-1 to invite D-1 for inauguration of Volley Ball Association and also to request him to give donation. D-1 was to attend the functions at Ongole, Markapur and other places. P.W. 1 discussed about his programmes. P.W. 1 was there with him till 6-30 a.m. D-1 alleged to have told him that he wants to start by 7-30 a.m. to go to Markapur. After discussing the same. P.W. 1 went out of the office room and then he visited the Office of D-1 at 7-15 a.m. P.W. 1 had also accompanied D-1 to attend the programme at Markapur. After they reached the office at about 1-15 p.m. D-1 went to the bedroom and D-2 was standing near the door. At that time one Manthri Srinivasa Rao, the Municipal Chairman and one Ravi, Vice-Chairman, who was examined as P.W. 4, and Municipal Commissioner went inside the bedroom of D-1 to invite him for their function to be held at Islampet, Ongole. One Ex. M.L.A., Maheedhara Reddy was also present in the bedroom. He was examined as P.W. 13. P.W. 1 was asked to wait at the Office. Accordingly P.W. 1 was waiting in the Office. Thereafter he went to D-1 along with one Murali, who was not examined. Penchal Reddy, P.W. 2, also came to the bedroom of D-1 P.W. 1, Maheedhara Reddy P.W. 13 and D-1 were discussing about the programmes for that day. P.W. 1 asked D-1 about the amount to be donated to the Volley Ball Association stated that an amount of Rs. 75,000/- should be given to the Volley Ball Association by way of donation. Then he refreshes himself and ready to go to the programmes. He was wearing a white pant and white khaddar shirt. By about 1-15 p.m. he opened the door of his bedroom. P.W. 1 was there and behind him Maheedhara Reddy P.W. 13 was also there. P.W. 13 was one foot ahead of D-1. At that time P.W. 1 heard the sound of gun-fire. After hearing the sound of gun-fire, he tried to come ahead of him by putting his right hand so as to ward off the firing. P.W. 1 alleged to have seen four or five young persons aged about 25 years. Four persons were carrying pistols and one person was carrying a gun. During the fire, P.W. 1 alleged to have received a bullet injury to his right hand and fell down. He was confused in state of mind. By the time he became normal, he saw D-1 lying in the bedroom. He further stated that he could not identify the persons who fired at him. But he stated that one person, who fired at D-1 was wearing a pink coloured shirt. He was not able to identify him. The gunman was firing on the assailants and the assailants were also firing at the gunman D-2. P.W. 1 was not able to tell against whom D-2 had opened the fire as he had received bullet injuries. He went inside the bedroom of D-1 along with Maheedhara Reddy and P.W. 2 Penchal Reddy. He also received a bullet injury. According to the evidence of P.W. 1, he along with P.W. 2, D-1 and D-2 were removed to the Government Hospital by about 2.00 or 2-15 p.m. At that time his statement was recorded by P.W. 25 Mahaboob Basha, S.I. of Police, 1 Town Police Station. As he had sustained injuries, he was not able to sign on Ex. P-1. Therefore he had put his left hand thumb impression on Ex. P-1. According to the version of P.W. 1 he was in the hospital till 9-00 p.m. and by about 5-00 p.m. he came to know that Gunman died and D-1 was in coma. At about 7-00 p.m. D-1 also died. Penchal Reddy P.W. 2 was also by the side of P.W. 1 in the hospital. At about 9.00 p.m. P.W. 1 shifted to Apollo Hospital at Hyderabad and Penchal Reddy was taken to Madras Apollo Hospital. P.W. 1 had to undergo, an operation and a bullet was taken from his hand. According to his version, his blood sample was taken in the hospital. He had signed the identification card Ex. P-2, he was able to identify M.Os. 1 and 2 shirt and pant which he was wearing at the time of the incident. He is further identified the clothes, which are on the person of D-1. They were marked as M.Os. 3 to 5. According to the version of P.W. 1, the gunman D-2 was wearing Safari dress. He was able to identify them as M.Os. 6 and 7. While commenting upon the evidence of P.W. 1, the learned counsel Mr. Kannabhiraman appearing for the defence has submitted that it is unequivocal version of P.W. 1 that some 4 or 5 young men carrying pistols and a gun in their hands, opened the fire and caused the death of D-1 and D-2. The evidence of P.W. 1 clearly shows that he was not able to ‘identify them. It is for the first time while giving evidence he stated that one of the accused (A-1) was wearing a pink coloured shirt. This fact was not told by P.W. 1 when the police recorded his statement under Section 161, Cr. P.C. Therefore, the learned counsel submitted that A-1 wearing pink coloured shirt, for the first time was introduced by the CBI Officials at the time of giving evidence so as to connect the accused with the crime. Admittedly P.W. 1 was not acquainted with any of the youngsters, who entered the Office of D-1. It was also brought to our notice that no test identification parade was held at any point of time. Therefore, the evidence of P.W. 1 cannot be believed that he was an eye-witness to the incident.
While rebutting the aforesaid arguments of the learned counsel for the appellants herein, the learned Special Public Prosecutor appearing on behalf of the prosecution has submitted that it is a fact that wearing of pink coloured shirt was not stated by P.W. 1 when his statement was recorded earlier under Section 161, Cr. P.C. It may be stated that pink coloured shirt had not gained any importance at that point of time. But when A-1 was arrested and the car, which was abandoned, was seized on the high-way, a pink coloured shirt was immediately recovered from the car which was abandoned and it might have been shown to P.W. 1. At that time he recapitulated his memory for the reasons he deposed before the Court that A-1 was wearing a shirt, which was in pink colour. At this stage we do not want to comment upon the evidence of P.W. 1 but subsequently in other paragraphs of the judgment, we will discuss the wearing of pink coloured shirt by A-1.
We have the evidence of P.W. 2, who also claims to be an eye-witness to the incident. He also narrated the earlier story as to how he went to the Office of D-1. He further states that he is related to D-1. He was very close to him in connection with the business affairs and private affairs of D-1. According to the version of P.W. 2, on the date of incident he had conducted “Deeksha of Swamy Ayyappa”. He further deposed that P.W. 1 and D-1 was in the bedroom. At that time he entered from the bedroom even P.W. 13 was present there. D-1 informed P.W. 2 that he would visit Islampet for opening of Urdu School. P.W. 2 asked P.W. 13 to accompany him. Then D-1 came out of his room within a minute. When D-1 was coming out of his bedroom, P.W. 2 also came out of the bed room of D-1. When they are coming out, firing was opened on them. In the said firing, D-1, D-2 and P.W. 1 received the bullet injuries. According to the version of P.W. 2, he also received bullet injury and one assailant out of 4 or 5 persons also received bullet injury. D-1 was attacked at the first instance. P.W. 2 was able to identify A-1 as the person, who fired at D-1. Along with him there were four more persons, who were carrying firearms in their hands. The version of P.W. 2 that A-1 fired on him, D-1, D-2 and also on P.W. 1. According to his version, he received bullet injury to his left thigh. On getting the injury, he went inside the bedroom, which was opposite to the bedroom of D-1. At that time the Municipal Chairman, Municipal Commissioner, Srinivasa Rao, Rajasekhar, S. Ravi Vice-Chairman were present in the bedroom. He further deposed that D-1 and P.W. 1 were taken in one car. P.W. 2 and gunman were taken in another car to the Government Hospital, Ongole where P.W. 2 was treated. He was in the hospital till 7-30 or 8-00 p.m. At that time he came to know that D-1 and D-2 died. Thereafter he was taken to Apollo Hospital, Madras where he was treated and operated. A bullet was removed. P.W. 2 was in the hospital till 26-12-1995. The CBI officials were seized the clothes of P.W. 2 on 24th. According to the version of P.W. 2, he was wearing “Ayyappa dress”. He was able to identify those clothes as M.Os. 8 and 9. He further deposed that A-1 was wearing a pink coloured shirt. He was able to identify the pink coloured shirt as M.O. 10. He further deposed that his blood samples were taken at Ongole hospital and thereafter at Nellore hospital. He alleged to have signed the identity card Ex. P-3 which is the original of identity card. This witness was cross-examined at length. In the cross-examination he has admitted that he did not depose that A-1 was wearing pink coloured shirt. The omission was marked as Ex. D-2. But he further deposed that he did not depose before the local police that A-1 was wearing a pink coloured shirt.
While commenting upon the evidence of P.W. 2, the learned counsel Mr. Kannabhiraman submitted that the identification of A-1 by P.W. 2 was not established. The learned counsel further submitted that according, to the evidence of P.W. 2, two other
persons were firing into the air and nothing is stated before the police. Further the evidence of Ballistic Expert P.W. 49 shows that he had given the report Ex. P-94 which shows that the bullet recovered from the person of P.W. 1 (M.O. 17) which was item No. 34 in Ex. P-94 is from the revolver of caliber 0.37/0.38 whereas the bullet recovered from the person of P.W. 2 (M.O. 16) which was item No. 35 in Ex. P. 94 was from the pistol having cartridge of O. 45. Thus, both the cartridges are different indicating that P.Ws. 1 and 2 were short by different persons. This raises a question about the credibility of the evidence of P.W. 2 as a whole and more particularly whether if at all he saw A-1 being fired at D-1 he claims to seek the evidence of P.W. 2 that the assailants were shooting on D-1 and when he tried to save M.P., then M.P. was shot, this raises a question. This question remains unsolved. P.W’s. 2 evidence is full of inconsistencies and contradictions. It is also submitted that test identification parade was not held.
Looking to the evidence of P.Ws. 1 and 2, it is evident that both the witnesses were not acquainted with A-1 earlier but they tried to identify in the Court as an assailant, who was wearing a pink coloured shirt. We will comment upon this point in subsequent paras of this judgment. The evidence of P.Ws. 1 and 2 cannot be thrown as it is when they did not give a statement before the Police that A-1 was wearing a pink coloured shirt.
Now we have the evidence of P.W. 7, who also claims to be an eye-witness to the incident. He has also narrated the earlier part of the evidence as deposed by P.Ws. 1 and 2. He further stated that he was present in the room. According to his version, A-1 was the person who was wearing a pink coloured shirt. He noticed that P.Ws. 1 and 2 and both the deceased were injured. He also saw A-1 with injuries and going out of the building. Further this witness was treated in the hospital. He was cross-examined at length. According to the version of P.W. 7, two more persons had come to see D-1 in connection with the establishment of P.G. Centre at Vinjumur. Those two persons insisted upon P.W. 7 to write letters as directed by D-1. At that time he heard the sound of gunfire. According to the version of the accused that the accused had visited to request the M.P. to open P.G. Centre at Vinjumur. But the evidence of P.W. 7’s evidence shows that the accused were not the persons, who had visited the office of the M.P. in connection with the establishment of P.O. Centre at Vinjumur. P.W. 7 further stated that A-1 was wearing a pink coloured short when P.W. 7 and others were coming out of the building. But he did not see personally as to who shot on D-1, D-2 and P.Ws. 1 and 2. P.W. 7’s evidence stands established that the accused were not the persons who, were present in the M.P’s. office or guest house in connection with making a request to establish P.G. Centre at Vinjumur. Accused plea cannot be believed.
We have the evidence of P.W. 13, who also claims to be an eye-witness to the incident. P.W. 13 is a former M.L.A. for the period from 1989 to 1994. He represented Kandukur Constituency. He was acquainted with D-1 and D-2. According to his version, he was also present in the bedroom of D-1. He has also narrated the earlier part of evidence as narrated by P.Ws. 1 and 2. He further stated that M.P. left his bedroom to attend the local function. P.W. 1 and Murali followed him and behind them, P.W. 13 was coming. All of a sudden one man was firing at M.P. with a short weapon. He was not acquainted with the accused earlier. Therefore he has also identified A-1 as a person who fired at M.P. and other injured persons who was wearing a pink coloured shirt. On this point he was cross-examined by the defence. He has stated that he does not remember whether he has stated before the Police that the accused was wearing a pink coloured shirt but he definitely states that he has stated so to the CBI officials. Thus, we have the version of four witnesses, who were present at the time of firing.
8. Now we proceed to scrutinize the other set of evidence so as to ascertain whether the pink coloured shirt and identify of A-1 stands established.
According to the prosecution story that the assailants ran away from the scene of offence in a car bearing R.T.O. Registration No. AAK 7041. The evidence of P.W. 11 is crucial on this point. The evidence of P.W. 11 shows that he is the owner of Ambassador car bearing AEE 2999. On the date of the incident, he had gone to Perlamitta engaged by Smt. Yadamma and two others and he returned from the said car and at about 2 O’clock he reached Ongole. It was four road junction. At the junction he slowed down the vehicle. One person came towards his vehicle and at the gun-point he threatened P.W. 11 and told him to get down from the car. The other persons, who were in We car, also got down and ran to the other side of the car. When the traffic Constable and P.W. 10 tried to rescue P.W. 11, one round was fired. At the point of gun, the Ambassador Car, which belonged to P.W. 11, was taken away. According to the version of P.W. 11, he opened the door of his car and ran away due to fear. After some time he came to (bur road junction. He saw one car AAK 704) was left at that time and the car of P.W. 11 was taken away. But this witness was not able to identify as to who were those 4 or 5 persons, who, took his car. According to his version, he gave a report to the police about, the theft of his car under Ex. P-9 and the offence was registered against the unknown persons. M.O. 15 is the car. At this juncture we would like to state that the abandoned car bearing R.T.O. Registration No. AAK 7041 was seized by the Police. But this number put to the car was not genuine one. According to the prosecution case that the assailants had also changed the registration number before the heinous act was committed by them. On this point P.W. 42 was examined by the prosecution. He stated in his evidence that a fake number was used. He identified the said car with reference to the chassis number and stated that the said car belonged to the Collector of Central Excise. There was no record in the car. With this evidence it establishes that the abandoned car was put with a fake number. P.W. 20 seized the said car.
It is the prosecution story that when the first car went out of order, the assailants snatched the second car and ran away but that car was also met with an accident and the said car was seized. In order to prove the aforesaid fact, the prosecution examined P.W. 20, who was working as Village Administrative Officer, Kadavakuduru. According to his version, he acted as panch. The car turned turtle. It was a white car. Police seized the said car. Behind the back seat of the car, a bloodstained shirt was found. It was of light rose in colour. A knife was also recovered. M.O. 10 is the shirt. Police prepared the panchanama Ex. P-33, which was the mediators report. Under the said panchanama, a knife M.O. 25, a letter pad M.O. 26, a magazine M.O. 27, a cover of spectacles M.O. 28 etc.. were seized. The said shirt, which was seized from the said car, was sent to DNA Expert to find out whether the shirt had bloodstains of A-1. The said shirt was marked by DNA Expert as 5(a), and was marked by them as Ex. K. which is M.O. 10 and which is a pink coloured shirt. P.W. 46 DNA Expert was examined in the Court. He hold M.Sc. Degree in Criminology and Forensic Science. He also holds Ph.D. degree in Forensic Aspects of DNA and Finger Printing. He further holds of Post-Doctoral qualification in Development of DNA Probes for Forensics. According to his evidence, DNA Finger Printing technique is an absolute method for identification, as on today for individualization of biological sample to the probability value of 99.9998 per cent. The theory of technic lies of the fact, each individual inherits DNA from its parents in the proportion of 50:50 DNA present in any person does not match with other person in the world. According to his evidence, on 17-2-1996 their office received requisition from the Court of the II Additional Munsif Magistrate. Ongole dated 16-2-1996 in which the request was made that four samples of blood of the accused and the injured in Cr. No. 140/95 of Ongole I Town Police Station may be compared by the DNA Finger Printing with bloodstained clothing and swabs collected at the scene of offence. Accordingly he carried out the test. We have already stated that the blood samples were already taken with the identity card. They were marked, as KLM being identical DNA finger printing to that of A-1. Thus, the shirt, which was marked as Ex. K and which was marked, as M.O. 10 was that of A-1 according to DNA test. Hence, on this evidence the learned counsel Mr. Kannabhiraman pointed out that the Expert deposed that the blood of A-1 is identical to the blood which has been found on Ex. K//M.O. 10 is identical and it is not the same and therefore the learned counsel has submitted that the mistakes are likely to be there in identifying the blood since the samples were collected two months after the incident. He takes the support of an article written by one Lalji Singh, Centre for Cellular and Molecular Biology, Hyderabad, in DNA Profiling and its applications in which the learned Author has observed as under :
“Precautions :–
DNA profiling is technically demanding. There are cases on record in the US where mistakes seem to have been prompted by human errors. There is a need for quality control. Every precaution should be taken to ensure preparation of high-molecular-weight DNA complete digestion of the samples with appropriate enzymes, and perfect transfer and hybridization of the blot to obtain distinct bands with appropriate control. If necessary the analysis should be repeated. The DNA fingerprinting test, if performed property, is infallible. However, there is need to interpret DNA typing with a thorough understanding of the populations involved.”
We have no hesitation in accepting the proposition. But it cannot be said that in this particular case, human error has crept in unless it is shown by cross-examination. DNA confirms the victim’s of identity. Then what is DNA? DNA means :
“(Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings is the blueprint of an individual. DNA decides the characteristics of the person such an the colour of the skin, type of hair, nails and so on. Using this genetic fingerprinting identification of an individual is done like in the traditional method of identifying fingerprints of offenders. The identification is hundred percent precise, experts opine.
The key feature of this technique is that no matter what biological sample is obtained — hair, a bit of skin, blood — the results are not going to be different. This is because all the cells in the body contain the same set of DNA something unique for each individual.
The test was conducted in Beena’s murder case.
In the present case, the CFSL and the CCMB conducted tests on the bones recovered by the police and on blood samples of Beena’s blood relatives; her mother Rathi Devaiah, brother Nanjappa and Sister Gangamma. The results were astounding : the DNA extracted from the bones found to be belonging to a female aged around 20-25 years. The DNA of the bones also tallied with the DNA in the blood samples of Beena’s mother, sister and brother and was comparatively of the same genetical order.
The test, according to police, had taken much time as the Hyderabad institutions had to seek expert opinion from institutions abroad.”
Section 45 of the Evidence Act reads as under :
“45. Opinions of exports :– When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.”
Thus, the evidence of DNA Expert is admissible in evidence as it is a perfect science. In the cross-examination P.W. 46 has deposed as under :
“If the DNA fingerprint of a person matches with that of a sample, it means that the sample has come from that person only. The probability of two persons except identical twins having the same DNA fingerprint is around 1 in 30 billion world population.”
It means that DNA test gives the perfect identity. It is a very advanced science.
Now we can go back to the ocular evidence of witnesses P.Ws. 1, 2, 7 and 13. Though they have not stated in their evidence that A-1 was wearing a pink coloured shirt at the time when he made a murderous attack on D-1 and D-2 and the injured P.Ws. 1 and 2, probably the said fact might have missed in the minds by the prosecution witnesses. But when the shirt was seized from the second car, which met with an accident and the shirt was sent to DNA Expert along with the blood samples of A-1, It tallied. It means that A-1 assailant was wearing a pink coloured shirt at the time of attack on D-1, D-2 and others. The aforesaid witnesses have specifically stated that a person wearing a pink coloured shirt when the attack was made on D-1 and D-2. It is also in the evidence of the prosecution witnesses that at the scene of offence bloodstains were found and the scrapping was seized. In the scrapping there was also bloodstains of third person. It may be stated that there was a sample of third person, who also might have been injured at the scene of offence. But this fact itself do not negative the positive evidence of DNA Expert, who has stated that bloodstains found on pink coloured shirt tallies with that of A-1. It is also the case of the prosecution as, well as the defence that A-1 also visited the guest house of D-1 and sustained injuries.
Further it appears from the record that the statement of A-1 was recorded by the VI Addl. Judl. First Class Magistrate, Quntur contemplating his death. Fortunately A-1 survived and therefore the statement of A-1 cannot be taken as a dying declaration. On this point, the learned Special Public Prosecutor has submitted that though the statement of A-1 recorded by the Magistrate, P.W. 55, cannot be used as dying declaration, but it can be used for a limited purpose as an admission under Section 21 of the Evidence Act. The statement of A-1 recorded by P.W. 55 is produced on record as Ex. P. 96. He has stated that he was present at the time of the incident and he has also received the injuries to his stomach. He was arrested at cashew garden. The fact of A-1 being there at the scene of offence stands established of his own admission coupled with the version of eye-witnesses. We take the entire statement of A-1 recorded by the Magistrate is an admission and not as a confession. We state that admission can be taken against A-1 only and not against A-2.
It is in the evidence of P.W. 30 that A-1 was arrested at cashew garden with bleeding injury to his stomach. When questioned he discovered a bag which was marked as M.O. 147 which contained a pistol with two live rounds. M.O. 23 was seized and it was a pistol. This was also spoken to by P.W. 19, who attested the panchanama Ex. P-32 when A-1 was arrested. However, he did not support the prosecution and he was declared hostile. Though this witness was declared hostile, he has stated that there was an object resembling a small gun. A common man cannot know the difference in between the gun and the pistol. Thus, from the evidence of P.Ws. 19 and 30, it stands established that A-1 was found in possession of a pistol. The learned counsel Mr. Kannabhiraman submitted that the finding of a pistol itself does not establish that A-1 fired on D-1 and D-2. But we do not accept his contention. If at all, A-1 was having a pistol for some other work, there was no necessity for him to carry the pistol to the Office of D-1.
The learned counsel Mr. Kannabhiraman submitted that the identification of A-1 was not conducted by any of the Investigating agency, which was fatal to the prosecution. While rebutting the aforesaid arguments of the learned counsel for the appellants herein, the learned Special Public Prosecutor submitted that A-1 was hospitalized for number of days and if at all the identification parade would have been held by the Police Officers, it would have been ended as a farce. Moreover, the purpose would not have been served. The identification parade is for the purpose of facilitating the investigation. But that is not the only evidence, which achieves importance. We have gone through the ruling of the Apex Court, which came to our notice, reported in Anil Kumar v. State of U.P. (2003) 2 Supreme 319 : (2003 Cri LJ 1524). Their Lordships approved the earlier decision reported in State of Maharashtra v. Suresh , in which their lordships of the Apex Court held as under :
“We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting a test identification parades is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.
This Court therefore concurred with the High Court that the categorical evidence of the witnesses received corroboration from the test identification parade even though it was held late. The conviction of the Appellants in that case was upheld.”
It is not necessary for us to quote the catena of decisions cited by the defence counsel and the prosecution, in view the positive finding recorded by us against A-1 being found him guilty after disagreeing with the contentions of appellants counsel.
By summing up the entire evidence, we have the identification of A-1 by P.Ws. 1, 2, 7 and 13, who identified the assailant was wearing a pink coloured shirt. The ocular evidence of P.W. 2 in respect of A-1 is reliable. A-1 was arrested on the same day with I injuries on his stomach. The pink coloured shirt was seized. The blood sample of A-1 was taken. A-1 was also injured in the firing. The blood found on the pink shirt tallies with blood sample of A-1 as per DNA test. There is also an admission of A-1 being present at the scene of offence. The entire links in the chain are complete to hold that A-1 is guilty of committing the murder of D-1 and D-2 and causing injuries to P.Ws. 1 and 2. The DNA test and the injury sustained by A-1 at the scene of offence, recovery of pistol and pink shirt and admission of his presence unambiguously point out to be guilt of the accused.
By discussing the entire evidence, we find A-1 guilty and therefore we dismiss the appeal filed by A-1.
By reading the entire evidence, we are satisfied that there is no positive evidence against A-2, who has participated in committing the heinous offence. Therefore, we give benefit of doubt to A-2 and acquit him. Thus, the appeal filed by A-2 stands allowed. A-2 is acquitted of all the charges levelled against him. He is set at liberty forthwith if not required in any other case.
Thus, the appeal filed by A-1 stands dismissed and the appeal filed by A-2 stands allowed.
The learned Sessions Judge has passed the order regarding the disposal of property stands undisturbed.