Andhra HC (Pre-Telangana)
Barakati Veerabhadra Rao And Ors. And ... vs State Of A.P. Rep. By P.P. on 30 September, 1997
Equivalent citations: 1997(6)ALT313
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT Ramesh Madhav Bapat, J.
1. Initially Accused Nos. 1 to 10 were tried by the III Additional Sessions Judge, Kakinada, East Godavari District in Sessions Case No. 54 of 1995 on different charges. The first charge against Accused Nos. 1 to 10 was for an offence punishable under Section 148 I.P.C. The 2nd charge only against A-2 was for an offence punishable under Section 302 I.P.C. The 3rd charge only against A-2 was for an offence punishable under Section 324 r/w. Section 149 I.P.C. The 4th charge against A-1, A-3 to A-10 was for an offence punishable under Section 302 r/w Section 149 I.P.C. The 5th charge againstA-1 to A-10 was for an offence punishable under Section 427 I.P.C. The 6th charge against A-1 only was for an offence punishable under Section 324 I.P.C. The 7th charge against A-3 was for an offence punishable under Section 324 I.P.C. The 8th charge against A-4 was for an offence punishable under Section 324 I.P.C. The 9th charge against A-5 was for an offence punishable under Section 324 I.P.C. The 10th charge against A-6 was for an offence punishable under Section 324 I.P.C. The 11th charge against A-7 was for an offence punishable under Section 324 I.P.C. The 12th charge against A-8 was for an offence punishable under Section 324 I.P.C. and the 13th charge against A-9 was for an offence punishable under Section 324 I.P.C. The learned Sessions Judge found that the prosecution was not able to establish the charge against any of the accused punishable under Section 302 I.P.C. and therefore they were acquitted of the said charge, whereas A-1 to A-10 were found guilty of an offence punishable under Section 148 I.P.C. Therefore, they were convicted and sentenced to suffer R.I. for two years each. A-3 to A-9 were found guilty of an offence punishable under Section 324 I.P.C. and they were convicted and sentenced to suffer R.I. for one year each. A-1, A-2 and A-10 were found guilty of an offence punishable under Section 324 r/w Section 149 I.P.C. and they were convicted and sentenced to suffer R.I. for one year each. The accused were in jail and therefore they were given set off for the period of their detention in jail as under-trial prisoners. The substantive sentences were made to run concurrently.
2. Aggrieved by the aforesaid order of conviction and sentence, the accused-appellants in both the appeals have approached this Court in appeals on the various grounds as stated in the appeal memorandums.
3. Accused Nos. 1, 3 to 7, 9 and 10 have filed Criminal Appeal No. 843 of 1996 whereas A-2 and A-8 have filed Criminal Appeal No. 984 of 1996. Both these appeals arise out of Sessions Case No. 54 of 1995 and therefore they are disposed of by a common judgment.
4. The prosecution story can briefly be narrated as follows: That A-1 to A-10 are the residents of Hussainpuram village. All the prosecution witnesses are also residents of the same village. One week prior to the date of offence i.e., 26-4-1994, there arose a dispute between A-3, A-4 and A-9 on the one hand and the prosecution witnesses 4 and 9 on the other hand as Seetharatnam refused to supply toddy to them. Three days prior to the date of offence, P.W.4 was robbed off Rs. 2000/- brought by him from Marne Veeraraju by A-3, A-4 and A-9. A dispute was raised before the village elders i.e. A-1 and P.W.15 wherein the elders of the village gave a verdict that A-3, A-4 and A-9 should pay back Rs. 1000/- to P.W.4. But A-3, A-4 and A-9 refused to make the payment. Thereupon, P. W.4 and the members of his family informed them that they would lodge a complaint with the Police. The said incident alleged to have taken place on 26-4-1994 at about 7-00 p.m.
5. It is further alleged by the prosecution that on the same day at about 8-00 p.m. A-1 to A-10 formed themselves into an unlawful assembly. They were armed with deadly weapons. They went to the house of the deceased named Musalaiah. A-1 was armed with curved knife, A-2 with a long knife and A-3 to A-10 were armed with stout sticks. They attacked P.Ws.1, 2, 4 to 6, 8 and 9. It was further alleged by the prosecution that A-2 hacked the deceased with the knife on his chest while he was sitting on the pial of the house. As a result of the injury, Musalaiah died. While A-1 tried to hack the deceased, P.W.2 intervened and she received a bleeding injury on her head. Thereupon the remaining accused beat the aforesaid person with sticks and caused injuries. In that commotion, A-1, A-3 and A-9 also received injuries.
6. It is further alleged by the prosecution that A-1 gave a report to the Police which was registered as Cr.No. 60/94 under Section 324 I.P.C. A-1, A-3 and A-9 were sent to the hospital by the Police for treatment. A-1, A-3 and A-9 on learning about the death of the deceased, they slipped away from the hospital.
7. It is further alleged by the prosecution that P.W.I also gave a report with the police which was registered as Cr.No. 61/94 under Sections 147, 148, 302, 324 and 323 I.P.C. It was registered by the Asst. Sub Inspector of Police, P.W.18, against the accused.
8. The further investigation was taken over by P.W.20. He rushed to the scene of offence and made arrangements to shift the injured to the hospital. They were given First Aid treatment. On the next day morning P.W.20 prepared the panchanama of the scene of offence which is filed on record as Ex.P-14. He also held the inquest over the dead body of the deceased by calling mediators. The inquest report is produced on record as Ex.P-15. P.W.20 made arrangements to send the dead body to the Government Hospital, Peddapuram for conducting post-mortem examination. The post-mortem examination was conducted by P.W.14. The post-mortem report is produced on record as Ex.P-5. According to the opinion of the Doctor, P.W.14, the deceased died due to shock and haemorrhage as a result of the stab injury to the heart. The injured witnesses were also examined by P.W.14. He issued wound certificates in respect of the injured witnesses and they are produced on record as Exs.P-6 to P-12. He opined that the injuries suffered by P.Ws.1, 2, 4, 5, 6, 8 and 9 were simple in nature. Thus, on completion of investigation, the charge-sheet was filed by the Investigating Officer.
9. The defence of the accused is of a total denial. It is also suggested by the accused by way of defence that the incident did not occur in the manner suggested by the prosecution. It was further stated by the defence that, as a matter of fact, A-1, A-3 and A-9 were beaten by the prosecution witnesses much earlier i.e., at about 7-30 p.m. on the day of the incident. They had to lodge a complaint with the police and in fact the complaint was lodged against the prosecution witnesses which is produced on record as Ex.D-9. After lodging the complaint, A-1, A-3 and A-9 were sent to the hospital and they were taking treatment. Therefore, there is no possibility of the accused being there at the scene of offence at any point of time.
10. It was further suggested by the accused by way of defence that somebody made a murderous attack on the deceased Musalaiah and they also injured the prosecution witnesses. The prosecution witnesses were not able to identify the assailants and in order to save themselves they have entangled the accused-appellants in the above case. With these averments it was prayed by the defence that they be acquitted of the above said charges.
11. In order to connect the accused with the crime, the prosecution led the evidence of P.Ws.1 to 20. Out of them, P.Ws.1 to 9 claimed to be the eye-witnesses to the incident. Some of them were injured at the time of the offence.
12. P.W.I. happens to be the son of the deceased, who filed the first information with the police, which is produced on record as Ex.P-1. P.W.2 is the daughter of the deceased. P.W.3 is the wife of the deceased. P.W.4 is brother's son of the deceased. P.W.5 is the brother-in-law of the deceased. P.W.6 is another son of the deceased. P.W.7 is the father-in-law of P.W.1. P.W.8 is another son of the deceased. P.W.9 is the son-in-law of the deceased. Out of the above witnesses, all are eye-witnesses except P.Ws.3 and 7. P.W.10 happens to be the farm-servant. He was not an eye-witness and his evidence does not lead the prosecution story anywhere. P.W.11 is the photographer, who had snapped the photographs at the scene of offence. They were produced on record as Exs.P-2 to P-4. P.W.12 is a constable, who took A-1, A-3 and A-9 to the Government Hospital, Samalkot where they were treated as out-(door) patients. P.W.13 is a witness to whom P.W.4 had supplied paddy to his rice mill. The evidence of P.W.13 also does not lead the prosecution story anywhere. P.W.14 is the Doctor, who had conducted post-mortem examination on the dead body of the deceased Musalaiah and had issued Ex.P-5, the post-mortem certificate. He had also examined the injured persons and had issued the wound certificates which are produced on record as Exs.P-6 to P-12. P. W.15 is one of the elders along with A-1, who had tried to settle the earlier dispute between P.W.4 on the one hand and A-3, A-4 and A-9 on the other hand. P.W. 16 is a panch witness to the scene of offence. The panchanama of the scene of offence is produced on record as Ex.P-14. He also acted as panch witness when the Investigating Officer conducted the inquest over the dead body of the deceased. Ex.P-15 is the inquest panchanama. P.W.17 is the Head clerk from the Court, who has produced the report of the Forensic Laboratory on record as Ex.P-22. P.W.18 is the Asst. Sub Inspector of Police, who had received Ex.P-1 given by P. W.1 on the strength of which he registered the offence against the accused-appellants. P. W.19 is the corpse constable, who had taken the dead body of the deceased to the hospital for conducting the post-mortem examination. P.W.20 is the Investigating Officer.
13. In order to establish the fact that the deceased died homicidal death, the prosecution relied upon the evidence of P.W.20, the Investigating Officer and P.W.16, who was a mediator to the inquest panchanama, which is produced on record as Ex.P-15.
14. As stated earlier, the post-mortem examination was conducted by P.W.14. On external examination, he noticed the following external and internal injuries on the person of the deceased:
"A spindle shaped stab injury of 5 cm. x 2 cms. tissue deep extending from skin to a depth of heard was present on the left front of chest, 1 1/2" away from the left nipple towards midline at the 4th intercostal space going anterio-posteriorly from right to left about downwards obliquely and pierced the right and left ventricles. The size of the wound over the right ventricle is about 2 1/2 cm. x 1 cm. x 5 cms., the size of the wound over the left ventricle is about 1 1/2 x 1/2 x 1/2 cms. after crossing over the inter-ventricular septum. Septal wound is above 2 cms. x 1/2 cm. x 1/2 cm. at the mid-portion of the septum. The anterior wall of the right ventricle and posterior wall of the left ventricle after piercing the ventricle the septum were affected. The injury passing through the skin, subcutaneous tissue muscles, intercostal muscles and ribs and enter the left side of the chest cavity and pierced the heard. The edges of the wound are abraded and contused and echymosis of the tissues was present. Fracture of the left 4 to 6 ribs in the mid clavicular line obliquely from right to left. Pleura injured at the level of 4th and 5th intercostal spaces. The lungs left lung injured at the level of 4th and 5th intercostal spaces, spindle shaped edges abraded and conditioned. Echymosis of the tissues present."
According to his observation, he issued post-mortem certificate Ex.P-5. As per the opinion of the Doctor, M.O.1 the knife can cause the injury which was noticed on the person of the deceased and that single injury, which was noticed on the person of the deceased, was sufficient to cause death.
15. Considering the evidence led by the prosecution on the point of homicidal death, this Court holds that the prosecution has been able to establish that the deceased died homicidal death.
16. As stated earlier P.Ws.1 to 9 except P.Ws.3 and 7 are eye-witnesses to the incident. According to the evidence of P.W.1 he lodged the first information with the police on the day of the incident i.e., on 26-4-1994. This witness was cross-examined at length. This witness has stated in his evidence that A-1 hacked his father with a knife at his left chest whereas in the F.I.R. i.e., Ex.P-1 he has attributed the overtacts on the part of A-2. The said contradiction is brought on record in the cross-examination.
17. While commenting upon the evidence of P.W.1 coupled with the corroborative evidence of Ex.P-1, the learned Counsel Mr. C. Padmanabha Reddy appearing on behalf of the accused-appellants herein submitted that P.W.1 is not given the true version. It was also submitted by the learned Counsel for the appellants that P.W.1, in fact, was not an eye-witness to the incident. If at all, he was an eye witness, he was not able to identify the assailants and therefore this discrepancy has crept in. The learned Counsel Mr. Padmanabha Reddy further submitted at the Bar that Ex.P-1 was not given at 10-00 p.m. as alleged by P.W.1 and also by the Investigating Officer. The learned Counsel further submitted at the Bar that as per the evidence of P.W.1 himself that he had visited the Police Station for lodging the complaint with the police but till the next day morning he did not inform the Circle Inspector of Police as to the manner of incident and the acts of the accused, though the Circle Inspector of Police was there for about 1 1/2 hours during the night time. With this admission of P.W.1 in the cross-examination, the learned Counsel further submitted that Ex.P-1 was given on the next day morning with due deliberation by making involvement of the accused-appellants herein in the present case. The learned Counsel further submitted that if at all P.W.1 was able to identify the accused-appellants as assailants on his father, nothing prevented him from giving the details of the acts committed by each of the accused. There was no reason for P.W.1 to wait till the next day morning. This Court finds that there is a discrepancy in the evidence of P.W.1 who also claims to be an eye witness to the incident.
18. The learned Counsel Mr. Padmanabha Reddy also pointed out the admission given by the Investigating Officer in the cross-examination, who has stated in his evidence that only for the first time during the inquest he recorded the statements of the witnesses and it is for the first time that he came to know about the assailants. With this admission on record the defence theory that Ex.P-1 was not filed on the day of the incident but it was filed on the subsequent day after due deliberation and also after consultation appears to be true.
19. As stated earlier, A-1, A-3 and A-9 were also injured witnesses. They had filed the complaint earlier at the police station which is about 5 K.M. away from the scene of offence. On lodging the complaint with the police, they were taken to the hospital for treatment and therefore at the same time their presence at the scene of offence becomes doubtful.
20. As stated earlier, P.Ws.2 to 9 except P.Ws.3 and 7 claimed to be eye-witnesses to the incident and they are also injured witnesses. All the witnesses though they have stated in their evidence that their statements under Section 161 Cr.P.C. were recorded by the police on the same night but they have been contradicted by the Investigating Officer, P. W.20, who categorically stated that their statements under Section 161 Cr.P.C. came to be recorded only after the following morning when he conducted the inquest over the dead body of the deceased. P. W.20 not only gave this admission that the statements of the witnesses were recorded on the next day morning, but also he has justified his action stating that the prosecution witnesses were not in a mood to give statements on that night.
21. Considering the material contradiction between the version of eye-witnesses and P.W. 20, this Court holds that the prosecution is not coming with a true story and there appears to be some element of concoction in collecting the evidence.
22. The learned Counsel Mr. Padmanabha Reddy relied upon a ruling reported in State of U.P. v. Moti Ram and Anr., wherein their Lordships were pleased to observe as under:
"Section 300 I.P.C. - Murder - Injured Eye Witness - Credibility - Statements of eye witnesses that they were examined by police just after the incident and sent for medical examination - Medical examination however held after delay of 21 hours - No explanation for delay - General diary indicating that the statements of eye-witnesses were taken on next day after the incident - Admission by one of the witnesses that his version was impaired - No blood found at the place where the witnesses are allegedly lying at the time of occurrence - Witnesses indisputably partisan witnesses - Evidence of eye witness unreliable."
The learned Counsel Mr. Padmanabha Reddy further relied upon a ruling reported in State of U.P. v. Bhagwan and Ors., 1997 (2) ALD (Crl.) 415 at 418 (SC) wherein their Lordships of Supreme Court observed:
"When the Investigating Officer did not record the statement of any of the eye-witnesses named in the FIR on the first day although he arrived at the place of occurrence at about 3.30. p.m. Non-recording of such a statement on the day of occurrence despite sufficient opportunity to record it, raises doubt about the authenticity of the contents of the FIR and also the testimony of the eye-witnesses. There are many other vital discrepancies in the testimony of the eye-witnesses inasmuch as the testimony of the witnesses are at variance with the case set out in the First Information Report and as such, the High Court was justified in discarding the testimony of the witnesses. The High Court has correctly appreciated the evidence and at no stretch of imagination it can be said that the findings recorded by the High Court are perverse. For these reasons, there is no merit in these appeals. The appeals are accordingly dismissed."
In the present case, as stated earlier, though the prosecution witnesses have stated in their evidence that their statements were recorded on the same night but P.W.20 specifically states that their statements were recorded on the following day. Therefore, this Court holds that there is an element of concoction. With this evidence on record, the learned Counsel for the accused-appellants submitted that the Investigation Officer might have recorded the statements of the eye-witnesses on the same night but they were not produced on record as the statements given by them were not suitable to them. This Court finds that there is force in the arguments advanced by the learned Counsel for the accused-appellants herein.
23. As stated earlier, P.W.1, who claims to be an eye-witness to the incident while giving first information with the police Ex.P-1, has categorically stated that A-1 hacked his father Musalaiah who was sitting on his pial, whereas in evidence he has stated that A-1 and A-2 hacked his father with a knife. But the medical evidence is otherwise. Only one injury was noticed by the Doctor, who conducted the post-mortem examination. Further more P.W.1 has admitted in the cross-examination that A-2 hacked his father. He has not attributed any overtact to the other accused. This is the main discrepancy in the evidence of P.W.1. This Court is not inclined to call the aforesaid fact only as a discrepancy but this can be called as intentional improvement in giving evidence so as to entangle the persons as he wanted.
24. Once the element of falsehood enters in the prosecution case, then such type of evidence has to be disbelieved while convicting the accused.
25. Considering the above discrepancy and concoction in the case which goes to the root of the matter, this Court holds that the order of conviction and sentence recorded against the accused-appellants is uncalled for and therefore it is set aside.
26. In the result, both the Criminal Appeals stand allowed. The order of conviction and sentence recorded against the accused-appellants is hereby set aside. The accused-appellants are acquitted of all the charges levelled against them. The bail bonds executed by them stand cancelled.