Andhra HC (Pre-Telangana)
L. Venkateshwarlu And Ors. vs State Of A.P., Rep. By Public Prosecutor on 20 June, 2000
Author: Ramesh Madhav Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT RMB, J.
1. Initially accused Nos.1 to 18 were tried by the learned IInd Additional Sessions Judge, Nalgonda for three different charges. The first charge against accused 1 to 18 was under Section 148 IPC. The learned Judge on evidence found that A-1 to A-11 guilty of the said charge, and therefore, he convicted each of them and sentenced to suffer rigorous imprisonment for one year, and Accused 12 to 18 were acquitted of the said charge.
2. The second charge against A-1 to A-18 was under Section 302 read with Section 149 IPC. The learned Judge found A-1 to A-11 guilty of the said charge, and therefore, each of them was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-, in default to suffer simple imprisonment for six months. Accused 12 to 18 were acquitted of the said charge.
3. The third charge against Accused 1 to 18 was under Section 307 read with Section 149 IPC for attempting to commit murder of P.W.4. The learned Judge found Accused 1 to 11 guilty of the said charge, and therefore, each one of them was convicted and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.200/-, in default to suffer simple imprisonment for three months. Accused 12 to 18 were acquitted of the said charge. Thus all the sentences imposed upon Accused Nos.1 to 11 were made to run concurrent, and hence, the appeal by Accused 1 to 11.
The substance of the charge against the accused-appellants is that on 19-9-1994 at about 5.30 p.m. at Sajjapuram Village, the accused caused death of one Nakka Permaiah by beating him with axes, sticks and stabbing him with knives.
The prosecution story can be briefly narrated as follows:
The accused and the prosecution witnesses are the residents of Sajjapuram Village. The deceased was also a resident of the same village. There were disputes between the deceased and the accused regarding fishery rights. Originally the deceased belongs to C.P.M. Party, later he joined Congress Party. The accused belong to C.P.M. Party.
4. On the date of incident, the deceased P.W.1, P.W.4 went to Nalgonda to the Office of Fisheries Department. Then all were returning from Nalgonda to Nereducherla. On the way they met P.W.2, and from there all boarded a Lorry and went to Palakeedu. From there they went by walk to Sajjapuram.
At about 6.00 p.m. the deceased, P.W.1, P.W.2 and P.W.4 reached near the house of Nakka Lingaiah (A-6). About 13 people came out of the house of A-6 and they were accused A-1 to A-11, A-12 and A-15. Accused No.1 was armed with a knife; A-2 and A-3 were having cart pegs; A-4 was having a spear; A-7 was also having a spear; A-12 was having a spear. The others were having cart pegs. The accused beat the deceased to death and also attempted to commit murder of P.W.4. Being afraid of beating, P.W.2 escaped from the scene of offence. According to him accused No.1 stabbed the deceased on the back; Accused Nos.2 and 3 beat him on the head; Accused No.4 stabbed the deceased with a spear in his abdomen and intestines came out. The other accused alleged to have beat the deceased on the head and other parts of the body indiscriminately.
5. According to P.W.4 all the accused came from the house of A-6 with axes, cart pegs, knives, attacked the deceased and killed him and when he tried to interfere, Accused No.1 beat him with a cart peg on the left cheek. Then he fell down. P.W.4 alleged to have been beaten by A-1 to A-6, A-8, A-10, A-14 and A-16. They beat P.W.4 indiscriminately, and then P.W.4 lost consciousness.
6. On 19-9-1994 at about 22.00 hours, P.W.4 was brought to Police Station, Nereducherla by P.W.1 with injury. P.W.1 presented a report, Ex.P.1 to P.W.8 Sub Inspector of Police, Nereducherla Police Station. P.W.8 registered the same as a case in crime No.77/94 against the accused under Section 147, 148, 307, 302 r/w 149 IPC and prepared copies of FIR and despatched them to all the concerned.
P.W.8 examined P.W.1 and recorded his statement. Then P.W.4 was sent to Government Hospital, Nalgonda for treatment. On 20-9-94 P.W.5 Civil Assistant Surgeon, Government Hospital, Nalgonda examined P.W.4 and treated the injured. P.W.4 was referred to Osmania General Hospital on the same day. As per the opinion of the Superintendent of Osmania General Hospital, there was a fracture to the posterior parietal region of the skull. The injury was grievous in nature. According to his observation, he issued Wound Certificate. It is brought on record as Ex.P.5.
7. On 19-9-1994 at about 11.00 p.m. P.W.10 Circle Inspector of Police, Huzurnagar, received wireless message about the incident. Then he proceeded to Nereducherla Police Station and from there he went to Sajjapuram Village where the incident took place. On the same day P.W.10 examined and recorded 161 Cr.P.C. statements of P.Ws.1 to 3 and others. On 20-9-1994 P.W.10 conducted inquest over the body of the deceased in the presence of P.W.3 and others. Ex.P.3 is the inquest report. Thereafter, P.W.10 prepared panchanama of the scene of offence, which is produced on record as Ex.P.4.
On 20-9-1994 P.W.9 Civil Assistant Surgeon, Government Hospital, Nalgonda conducted autopsy over the dead body of the deceased. According to him the cause of death was due to shock and haemorrhage due to multiple injuries. Ex.P.33 is the post mortem report.
On 24-9-1994 P.W.10 arrested A-1 to 13 and recorded their confessional statements in the presence of P.Ws.6 and 7. In pursuance of the said statement, accused Nos.1 to 3, 5, 6, 8 to 11 and 13 discovered knives, cart pegs, spears etc., They were seized by the police under Panchanamas Exs.P.19 to 31. On 9-2-1995 P.W.10 arrested accused Nos.4 to 18 and they were remanded to judicial custody. Thus, on completion of investigation, P.W.10 filed the charge sheet against the accused.
The defence of the accused is of total denial. It is also suggested by the accused that they have been falsely implicated because of disputes over fishery rights.
8. In order to establish that the accused are responsible for causing the death of the deceased, reliance was kept by the prosecution on the evidence of P.Ws.1 to 11. They also produced certain documents. They were marked as Exs.P.1 to P.35. The material Objects were marked as M.Os.1 to 8.
P.Ws.1, 6 and 7 did not support prosecution. They were declared hostile and permission was accorded to the learned Addl. Public Prosecutor to put questions in the nature of cross-examination.
9. By reading the entire episode, it is evident that P.Ws.1, 2 and 4 were cited as eye witnesses to the incident. Out of them P.W.1 turned hostile, though he was an eye witness to the incident. With this background, we proceed to scrutinise the evidence which is brought on record so as to ascertain whether the order of conviction and sentence recorded against the Accused Nos.1 to 11 by the learned Judge is justifiable.
In order to prove the fact that the deceased died homicidal death, prosecution relied upon the evidence of P.W.10 and P.W.3. P.W.10 is the Investigating Officer. P.W.3 is an independent witness in the presence of whom inquest was conducted by P.W.10. The inquest report is produced on record at Ex.P.3.
10. After inquest was over, the dead body was sent to Government Hospital, Nalgonda for conducting post mortem examination. Post mortem was conducted by Dr. V. Manohar, who was working as Civil Assistant Surgeon, Government Hospital, Nalgonda, who on receipt of requisition conducted autopsy over the dead body of the deceased and noticed the following external injuries on the person of the deceased.
" 1. Comminuted fracture left parietal region extending on to occipital brain lacerated and exposed outside of the skull.
2. Cut injury left pre-auricular region with irregular fracture of skull 6"x 2"x 4".
3. Cut injury left temple region 1 1/2" x 1".
4. Cut injury left infra axillary region 5" x 3" deep into chest with fracture of 5 to 8 fractured, with intestines protruding outside.
5. Multiple stab injuries deep into chest 2" x 1 1/2" x 4" about 4.
6. Stab wound left iliac bone 1 " x 1 1/2".
7. Stab wound over left infra scapular region 1" x 1/2".
8. Cut injury right infra axillary region 1" x 1/2" deep into thorax.
9. Right jaw maxilla right paritol bone of skull is fractured irregularly with comminution.
10. Cut injury to right lung with bleeding with right lung irregularly cut."
11. On internal examination, he noticed the following internal injuries on the person of the deceased.
"Other observations included blood in the peritoneum. Cut injury to the stomach with undigested food to peritoneal cavity. Cut injury to the liver with bleeding. Cut injury to the spleen with bleeding."
He has opined that all the injuries noticed by him on the person of the deceased might have been caused within 10 to 24 hours prior to the post mortem examination. According to him the cause of death was due to shock and haemorrhage because of multiple injuries. He further opined that the injuries are possible by sharp weapons and some injuries are possible by blunt weapons. According to his observation, he issued the post mortem certificate which is produced on record as Ex.P.33.
12. Considering the evidence, which was relied upon by the prosecution on the point of homicidal death, we hold that the prosecution was able to prove that the deceased died homicidal death.
As stated earlier, reliance was kept by the prosecution mainly on three witnesses. P.Ws.1, 2 and 4. Out of these three witnesses, as stated earlier, P.W.1 turned hostile and did not support the prosecution at all. The evidence of P.W.1 shows that he did not go to Police Station. He came to know regarding the incident on the next day. He further stated that he did not give complaint to the police, but he admits to have signed Ex.P.1. He further gives explanation that he was made to sign by the police. Thus the evidence of P.W.1 would go to show that he did not support the prosecution. He disowns to have given the First Information Report. Therefore it can definitely be stated that Ex.P.1 cannot be used by the prosecution for any purpose, at the most we can say that with the help of Ex.P.1 police machinery was set in motion nothing beyond that. With this background we proceed to scrutinize firstly the evidence of P.W.4 who claimed to be an eye witness to the incident.
13. P.W.4 was not only an eye witness, but he himself was an injured witness. According to his version, on the date of incident, he along with the deceased and P.W.1 went to the Office of Fisheries Department at Nalgonda and in the same evening they were returning to their village Sajjapuram. They were walking down the distance from Nereducherla to Sajjapuram. On the way they met P.W.2 and when they reached the house of A-6, all the accused came out and attacked the deceased and killed him. P.W.4 further stated that he was beaten by accused No.1 with a cart peg on his left cheek, then he fell down. He further deposed that he was beaten by A-1 to A-6, A-8, A-10, A-14, A-16 indiscriminately and thereafter he became unconscious and on the following day, he regained consciousness.
14. We tried to analyse the evidence of P.W.4 so as to ascertain whether the evidence of P.W.4 inspires confidence. According to the version of P.W.4, A-1 beat him with a cart peg on the left cheek. Whether that statement is right or wrong can be ascertained with reference to the medical evidence. It is not in dispute that he was admitted to the Hospital and he was examined by one Dr. K. Sucharitha. The Doctor has stated that she had seen one contusion over the occipital area of the skull admeasuring 4" x 2" and there was bleeding from right ear. She further stated in her evidence that after giving preliminary treatment, P.W.4 was sent to Osmania General Hospital, Hyderabad as there was a fracture to the posterior parietal region of the skull. The injury was grievous in nature. She issued Ex.P.5 Wound Certificate. In the cross-examination, she admitted that the injury noticed by her on the person of P.W.4 could be caused by a fall. While giving evidence she stated that she did not collect the X-ray from the Osmania General Hospital, but on some information she deposed before the Court that there was a fracture to the posterior parietal region of the skull, without reference to the X-ray.
15. As stated earlier, while giving evidence, P.W.4 has specifically stated that Accused No.1 beat him with a cart peg on the left cheek. P.W.5 does not make any mention in her evidence regarding the injuries noticed by her on the cheek on the person of P.W.4, and therefore the evidence of P.W.4 becomes little doubtful.
According to the version of P.W.4 when he fell down he was beaten by A-1 to A-6, A-8, A-10, A-14, A-16 indiscriminately, but such evidence is not forthcoming from the mouth of P.W.5. She has noticed only one fracture injury on the parietal region of the skull. As stated earlier that injury is also not described by her with reference to the X-ray. Therefore, we have all reasons to doubt the presence of P.W.4 at the scene of offence.
16. On more fact which would go against the prosecution is that the statement of P.W.4 was recorded by police one month after the incident. The Investigating Officer has tried to give a lame excuse as to why his evidence was recorded one month after the incident. The Investigating Officer deposed that P.W.4 was unconscious for one month, and therefore, his statement could not be recorded. But the said evidence of the Investigating Officer is negatived by P.W.4 himself, who stated that on the following day of his admission to Osmania General Hospital he regained his consciousness. Under such circumstances, we see the evidence of P.W.4 with great suspicion.
17. If the evidence of P.W.4 is eschewed from the evidence, then what we have is the evidence of P.W.2 who also claims to be an eye witness to the incident. It can be seen from the evidence of P.W.2 that he has attributed overt act to accused Nos.1 to 4 while giving evidence, whereas while describing the role played by the accused, P.W.2 has stated that the other accused beat the deceased indiscriminately. No overt act was attributed to other accused, except accused Nos.1 to 4.
P.W.2 while giving 161 Cr.P.C. statement did not attribute any overt act to accused Nos.2 to 4 at any point of time and the said contradiction by omission has been brought on record by putting questions to the Investigating Officer. Therefore, we can safely say that P.W.2 has attributed overt act to accused No.1 only.
18. The learned Public Prosecutor submitted at the bar that accused Nos.1 to 4 at least may be held liable for causing the death of the deceased. While refuting the aforesaid argument of the learned Public Prosecutor, the learned defence counsel Mr. C. Padmanabha Reddy, appearing on behalf of the defence pointed out a ruling reported in MALLAPPA Vs. STATE OF KARNATAKA (1995 SCC (Crl.) 414), in which their Lordships had observed thus:
" The medical evidence shows that there are only three lacerated wounds on D-1 and six lacerated wounds on D-2 totalling 9 and the abrasions were due to fall. The question is whether A-3, A-5, A-9, A-10, A-11, A-13 and A-14, seven in number who are said to have attacked two deceased with sticks indiscriminately caused only 9 lacerated injuries and not even a single contusion. No overt act has been attributed to A-8 throughout. As pointed out in cases of this nature, the overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinising the evidence. If such overt acts are mentioned consistently right from the stage of the FIR and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed could safely be held to be members of the unlawful assembly with the common object of committing those offences."
Thus from the above reading, it is evident that overt act if number of accused are involved in a case, then while holding each of them guilty for the said offence, the Court has to scrutinise the evidence and apply overt act test in fixing the responsibility on each of the accused. In the present case P.W.2 has attributed overt act only to accused No.1 and no overt act was attributed to the other accused, and therefore, we are of the considered view that accused No.1 alone has to be held liable for causing the death of the deceased.
19. We want to bring on record some of the irregularities and illegalities committed by the Second Additional Sessions Judge, Nalgonda while deciding the above case.
As stated earlier P.W.1 disowns to have given the First Information Report, Ex.P.1, but the learned Judge for convicting the accused held as under:
"The 161 Cr.P.C. Statement of P.W.1, 2 and P.W.4 also shows the same facts but the P.W.1 gave the overt acts of some of the accused persons in 161 Cr.P.C. statement that A4 stabbed the deceased with spear, A6 with cart peg, A7 with spear, A8, A9 and A1 used cart pegs, A12 stabbed the deceased with spear when P.W.4 intervened then they have beat him on left ear with stick and on back and P.W.4 fell unconscious and blood oozing from the ear whereas P.W.2 161 Cr.P.C. statement shows the overt acts that A1 stabbed the deceased with knife on back, A4 stabbed the deceased with spear, A6 with cart pegs beat the deceased, A7 with spear stabbed the deceased, A8 to A10 beat the deceased with cart pegs on head and back of the deceased, A12 stabbed the deceased in abdomen and when P.W.4 intervened they beat him on head and back with stick indiscriminately, the blood was oozing from the ear of P.W.4, he became unconscious and P.W.4 161 Cr.P.C. statement also shows the same facts, however his 161 Cr.P.C. statement i.e., P.W.4's 161 Cr.P.C statement shows that A14 beat him on his back indiscriminately and the deposition of P.W.2 shows that 13 persons came from the house of A6 and they are A1 to A9, A11, A17 and A15 and A1 armed with knife, A2 and A3 were having cart pegs, A4 was having spear, A7 also having a spear. But it is seen he did not speak anything with regard to the holding of cart pegs by A2 and A3 in his 161 Cr.P.C. statement."
20. In Para 35 of the Judgment, the learned Judge observed thus:
"The evidence of P.W.1 and contents of Ex.P.1, 161 Cr.P.C. statement would go to show that P.W.2 accompanied P.W.1 and deceased and P.W.4, his presence cannot be ruled out at the time of the incident in my view."
21. In Para 37 of the Judgment, the learned Judge observed thus:
"... those minor contradictions cannot destroy the case of the prosecution as the contents of Ex.P.1, and 161 Cr.P.C. statement and inquest panchanama shows the involvement of A1 to A13. But as per the deposition of P.Ws.2 and 4 the involvement of A1 to A11 is only established."
22. From the above extracted portion of the Judgment it is evident that the learned Sessions Judge while convicting the accused did not give much importance to the substantive evidence, but he has given much importance to 161 Cr.P.C. statements. He has also given importance to Ex.P.1 i.e., First Information Report lodged with the police by which the police machinery was set in motion. The learned Sessions Judge did not know that FIR cannot be treated as substantive evidence. It is available to the prosecution only for the purpose of corroboration of the person making it. But in the present case we have already stated that P.W.1 totally disowned to have lodged the First Information Report with the police, and therefore, in the present case Ex.P.1 is not available for the prosecution to corroborate the evidence of P.W.1, one who turned hostile. In spite of this legal position, the learned Sessions Judge has taken into consideration the contents of Ex.P.1 as substantive piece of evidence and based his conviction on such statement, which is totally illegal.
Therefore, the conviction and sentence recorded against the appellants-accused 2 to 11 on all counts is hereby set aside and they are accordingly acquitted of all the charges framed against them. They shall be released forthwith if not required in any other case. The fine if paid by the accused-appellants 2 to 11 be returned to them.
The appellant-accused No.1 is held guilty of the offence punishable under Section 302 read with 149 IPC holding that he along with some other persons committed the said offence. Therefore, the order of conviction and sentence imposed upon him for the offence punishable under Section 302 read with 149 IPC and under Section 148 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.500/- and sentencing him to undergo imprisonment for one year respectively are hereby confirmed and the substantive sentence imposed upon the accused-appellant No.1 is made to run concurrent. The order of conviction and sentence imposed upon accused-appellant No.1 on other counts is set aside.