After being incarcerated for four and a half years, duo accused of murdering two TDP legislators granted bail by the SC

A division Bench of Justices A.S. Oka and Rajesh Bindal held that there were no reasonable grounds for believing the accusation against the appellants. It also accounted for there being no possibility of the trial against the appellants commencing in the near future.

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ON Monday, the Supreme Court granted bail to two accused persons booked for the murders of two Andhra Pradesh legislators.

The duo are accused of murdering Kidari Sarveswara Rao, a member of the legislative assembly (MLA) of Andhra Pradesh and the then whip of the Telugu Desam Party (TDP) in the assembly, and Siveri Soma, a former TDP MLA in the state.

They are facing charges under the Unlawful Activities (Prevention) Act, 1967 (UAPA), besides the Indian Penal Code, 1860 and the Explosives Substances Act, 1908.

A division Bench of Justices A.S. Oka and Rajesh Bindal held that it was unable to form an opinion as to whether there were reasonable grounds for believing the accusation. The appellants, Yedala Subba Rao and Gemmili Sobhan, are accused no. 46 and 47 respectively in the first information report (FIR) registered at the Dumbriguda police station in Visakhapatnam, Andhra Pradesh on September 23, 2018.

The following factors were also accounted for by the Bench to decide that there was no possibility of the trial commencing in the near future and therefore to grant bail to the accused:

• • Incarceration of the appellants for four and half years.
  • Non-framing of charges against them.

• The prosecution's proposal to examine more than 140 witnesses.
• That some of the accused are absconding.

Facts

The case of the prosecution is that 45 accused persons, who belonged to the Communist Party of India (CPI) (Maoist) (CPI (Maoist)), a banned organisation notified in the first schedule of the UAPA, stopped a convoy of vehicles carrying Sarveswara Rao and Soma. The accused compelled them to get out of their cars, and subsequently shot them dead.

An FIR was registered by Sarveswara Rao's personal secretary on the day of the incident, that is, September 23, 2018.

Initially, the investigation was carried out by a special investigation team of the Andhra Pradesh government. The probe was later transferred to the National Investigation Agency (NIA) on December 6, 2018.

The petitioners were arrested on October 13, 2018. A chargesheet was filed on April 10, 2019. The chargesheet named 79 accused persons, though initially 85 accused persons had been listed. About 144 witnesses have been named in the chargesheet so far.

Allegations against the appellants

The allegation against Subba Rao was that he provided shelter and logistical support to Maoists and his co-accused for facilitating the murder of the two TDP leaders. Another allegation was that both the appellants planted landmines near the village where the programme that the murdered TDP leaders were on their way to attend was to be held. It was also the case of the prosecution that the first petitioner was in constant touch with accused no. 84, who in turn was in touch with Maoists.

In addition, it was also alleged that cellphone call records showed that both appellants were in touch with each other immediately after the incident. It was also alleged that Subba Rao purchased a huge quantity of medicines and handed it over to Maoist sent by accused no. 84.

The allegations against Sobhan were that he had an association with Subba Rao, and was found in possession of certain pamphlets and literature of the CPI (Maoist). Another allegation was that he had given shelter to CPI (Maoist) workers.

It was alleged in the chargesheet that both the appellants were in touch with each other for about 1,7­18 days before the incident. Besides, it was alleged that they were regularly conversing with accused no. 84, who in turn was communicating with the workers of the CPI (Maoist).

Ruling

The Supreme Court took note of the judgment of the Andhra Pradesh High Court passed on December 15, 2020, granting bail to accused no. 84. The high court in its order had considered the call detail records of the telephonic conversation between Subba Rao and accused no. 84. The high court had also observed that Subba Rao was a former sarpanch of the village where accused no. 84 was teaching at a government school and therefore, it was natural that by virtue of being a former sarpanch, he constantly had people approaching him.

As for the calls exchanged between these two accused on the date of the offence and after the offence, the high court had observed that it is not unusual for a former sarpanch to receive calls from many persons immediately after the commission of such an offence.

The Supreme Court also took note of the high court's observation regarding the purchase of medicines worth ₹8,000 by Subba Rao at the instance of accused no. 84, which were handed over to one Kiran, who was also a Maoist. The high court observed that in the chargesheet filed against Subba Rao, it was noted that Kiran was arrested on September 18, 2018, and was in custody on the date of the offence. The high court, thus, opined that accused no. 84 was prima facie not involved in the offence.

The Supreme Court itself wondered how the purchase of medicines worth ₹8,000­ by Subba Rao at the instance of accused no. 84 much before the incident had any connection with the incident which took place on September 23, 2018. This, the Supreme Court noted, was apart from the fact that accused no. 84 had been granted bail by the high court.

The Supreme Court also held that the disclosure statement made by Subba Rao was not prima facie admissible in law. As per the prosecution, Subba Rao, in his disclosure statement, stated that he purchased a huge quantity of medicines worth ₹8,000 and handed them over to a Maoist.

The court noted, "[L]ooking at the discovery memo dated January 16, 2019, at the highest, it means that [Subba Rao] showed the shop from which the medicines were purchased. Thus, he led the police to the shop. There was no discovery of any fact as a result of the information supplied by [Subba Rao]. The same is the case with the other allegation that [Subba Rao] showed a Xerox shop where [Sobhan] and one Kiran were allegedly standing on September 23, 2018."

It also highlighted that a statement of one G. Narasinga Rao, who was allegedly running the said medical shop, had been recorded during the investigation. In the statement, he stated that on January 16, 2019, an NIA team visited his shop and inquired about the sale of a large quantity of medicines in July 2018. The team had brought Subba Rao with it.

"This shows that the NIA team was already aware of the location of the shop from which a large quantity of medicines was allegedly purchased by [Subba Rao] in July 2018," the court concluded.

Regarding the recovery of a landmine at the instance of Subba Rao, the court noted that it was not the case of the prosecution that the recovery of the landmine was at the instance of Sobhan.

"In the same panchnama, a long statement of [Subba Rao] is recorded, which is in the nature of a confessional statement. There is also a confessional statement of [Sobhan] in the same panchnama. Prima facie, these statements may not be admissible in evidence being hit by Section 25 [confession to police officer not to be proved] of the Evidence Act. Going by the 'Mediators' Report' and Seizure Panchnama', the appellants gave confessional statements immediately after the police caught hold of them even before their arrest was recorded. Therefore, prima facie, it creates a doubt about the genuineness of the statements. The material portion of the 'Mediators' Report and Seizure Panchnama' appears after the confessional statement of [Subba Rao]," the court held.

It ruled that no confessional statement was made by Subba Rao giving information that he was in a position to show the place where he had planted the landmine.

"Prima facie, 'Mediators' Report and Seizure Panchnama' is not helpful to the prosecution in proving that the landmine was discovered at the instance of [Subba Rao]," the court ruled.

Regarding the allegations against Sobhan, the court noted that his confessional statement recorded under the Mediators' Report and Seizure Panchnama was not admissible evidence as he had not disclosed any fact that led to any discovery.

"In his statement, it is recorded that he was carrying Maoist literature and banners. It is recorded in the panchnama that eight brochures, two banners, and one landmine, along with electric wire and detonators, were seized from four persons. It is not specifically mentioned in the panchnama that the brochures and banners were recovered from [Sobhan]. The prosecution case that [Sobhan], with one Kiran, was found standing at a particular place on September 23, 2018 appears to be very doubtful," the court held.

On this material analysis, the court proceeded to grant bail to the appellants.

Click here to view the Supreme Court's full judgment in Yedala Subba Rao & Anr. versus Union of India.