Andhra HC (Pre-Telangana)
Derangula Kondaiah And Ors. vs The State Of A.P. Rep. By P.P. on 3 August, 2006
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
JUDGMENT B. Seshasayana Reddy, J.
1. Assailing the judgment dated 9.4.1999 passed in S.C. No. 418 of 1998 on the file of Sessions Judge, Cuddapah; A1-Derangula Kondaiah, A2-Derangula Venkata Ramana, A3-Derangula Venkatesu, A4-Derangula Sreenivasulu and A5-Derangula Marappa have filed this Criminal Appeal.
2. The appellants/accused were put on trial for the offences under Sections 148, 302, 302 r/w 149, 326, 326 read with 149, 324 and 324 read with 149 IPC.
3. The gravamen of the charge against the appellants-accused is that on 7.4.98 at about 12 noon at the house of Gagula Venkatesu formed themselves into an unlawful assembly armed with deadly weapons with the common object of doing away the life of Gogula Venkatesu and in pursuance of the common object they killed Gagula Venkatesu besides causing injuries to P.W.1-Gogula Srinivasulu, P.W.4-Gogula Krishnaiah, P.W.5-Gogula Pedda Venkatesu, P.W.6-Gogula Nadipi Venkatesu, P.W.7-Gogula Gangamma and P.W.8-Gogula Venkata Ramana.
4. The case of the prosecution as unfolded by the witnesses examined on its behalf, in brief, is:
A1 and A5 are brothers, and A2 to A4 are sons of A1. P.W.1 is brother, P.Ws.4 to 6 and 9 are sons of Gogula Venkatesu (hereinafter referred to as the deceased). There were ill-feelings between the deceased and A1 in respect of a vacant site situated on the rear side of the house of A1. The deceased demanded A1 to remove the firewood touching the northern wall of his house so as to enable him to white wash the northern wall. A1 did not oblige him. On 7.4.98 at about 12 Noon the deceased, P.W1, P.Ws.4 to P.W.8 were constructing copying (chunchu) wall on the terrace of the house of the deceased. It is alleged that all the accused formed themselves into an unlawful assembly armed with deadly weapons such as sticks and axes attacked the deceased, P.W.4, P.W.5 and P.W.6, and when P.Ws.7 and 8 came in rescue of the deceased, the accused also beat them. It is stated that the deceased was beaten by A2, A3 and A4, P.W.4 was beaten by A1 and A3, P.W.5 was beaten by A3, P.W.6 was beaten by A2 and A5, P.W.7 was beaten by A4, and P.W.8 was beaten by A5. In the same incident A2, A3 and A5 also sustained injuries. P.W.1 presented Ex.P.1 report before the SHO, Thondur Police Station on 7.4.98 at 2 P.M. P.W.12- S.Ghouse Peer, SI of Police, Thondur P.S received Ex.P.1 report, registered a case in Cr. No. 18 of 1999 and issued Ex.P.20-FIR. He also received a report from A2 and registered a case in Cr. No. 19 of 1998 under Sections 147, 324 read with Section 34 IPC and issued Ex.P.21-FIR. He sent the injured to the hospital for treatment. P.W.11- Dr. T. Rammohan, Civil Assistant Surgeon, Government Hospital, Kadapa medically examined the deceased, P.W.1, P.Ws.4 to 8 and A2, A3 and A5 and issued wound certificates Exs.P.5 to P.12 and Exs.P.14 to P.17. He examined P.Ws.1,4,6,7 and 8 and recorded their statements. He affected the seizure of blood stained clothes of the injured under Ex.P.22 police proceedings. The deceased succumbed to the injuries in Kadapa Government Hospital. P.W.12 received death intimation from the Government Hospital, Kadapa through P.C.12 67 and thereupon he altered the section of law and issued Ex.P.23 altered FIR. He inspected the scene and prepared Ex.P.24 scene of offence panchanama. P.W.13-A.Venkateswara Reddy, CI of Police, Kondapuram took up investigation and held inquest on the dead body of the deceased in the presence of P.W.10. Ex.P.4 is the inquest report. He affected seizure of blood stained clothes of the deceased under the cover of Ex.P.26 police proceedings. He sent the material objects to the RFSL. Ex.P.27 is the letter of advice and Ex.P.28 is the RFSL report. After completing investigation, he laid a charge sheet before the JFCM, Pulivendla. The learned Magistrate took the charge sheet on file as P.R.C. No. 19 of 1998 and committed the same to the Sessions Division, Kadapa as the offence under Section 302 IPC is exclusively triable by a Court of Session. On committal, the learned Sessions Judge took the case on file as S.C. No. 418 of 1998. On hearing the prosecution and the accused, the learned Sessions Judge framed charges, read over and explained the same to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined 13 witnesses and proved 28 documents and exhibited 3 material objects. The learned Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offences of rioting armed with deadly weapons punishable under Section 148 IPC, for causing grevious hurt to P.W.1 punishable under S ection 326 read with 149 IPC and for causing simple injuries to P.W.4 and P.W.5 punishable under Section 324 read with 149 IPC and convicted them accordingly and sentenced each of them to suffer RI for one year and pay a fine of Rs. 200/- in default to undergo RI for one month for the offence under Section 148 IPC, RI for one year and fine of Rs. 200/- in default to suffer RI for one month for the offence under Section 326 read with 149 IPC, RI for six months and fine of Rs. 200/- in default to suffer RI for one month for the offence under Section 324 read with 149 IPC (for both the counts), RI for five years and pay a fine of Rs. 200/- in default to suffer RI for two months for the offence under Section 304 Part II read with 149 IPC. Hence, this Criminal Appeal by the appellants-accused.
5. Heard learned Counsel appearing for the appellants-accused and learned Additional Public Prosecutor appearing for the State.
6. Learned Counsel appearing for the appellants- accused submits that A2, A3 and A5 received serious injuries in the same incident and that itself suggests that they are the aggrieved parties and whereas the material prosecution witnesses are the aggressors. He would further submit that it is the deceased and P.Ws.4 to 8 who provoked the incident and therefore they were held to be liable for consequences thereto. He would also contend that the version of the prosecution projected by the material witnesses is highly improbable and therefore no reliance can be placed on their testimony. It is also contended by him that learned trial Judge having concluded the occurrence is a free fight committed error in recording conviction of the appellants-accused for various offences by invoking constructive liability. During the course of arguments, the learned Counsel referred to various observations made by the trial Judge in paragraphs 15 and 28 of the judgment impugned in the appeal.
7. Per contra, learned Additional Public Prosecutor submits that the trial court considered the evidence brought on record in right perspective and on meticulous examination of the evidence brought on record found the appellants/accused responsible for causing the death of the deceased and grievous hurt to P.W.1 and simple injuries to P.Ws.4 and 5 and convicted them accordingly and therefore the judgment impugned in the appeal is legal and proper and the same is not required to be interfered.
8. The defence of the accused is two folded. Firstly, the prosecution party in an inebriated manner pushed each other thereby sustained injuries. Secondly, the prosecution party attacked A2, A3 and A5 while they were returning from the field.
9. Ex.P.21 is the copy of FIR in Cr. No. 18 of 1999 of Thondur Police Station. The case in the said crime came to be registered on the complaint of A2. It is stated in the report that the incident occurred when A1 to A5 questioned the prosecution party for constructing copying (chunchu) wall protruding on the site of A1. Therefore, there is no semblance of truth in the defence pleaded by the accused.
10. It is well settled that while evaluating evidence of a witness, the approach must be whether evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach in persuasion of the evidence should be avoided. The Supreme Court in State of A.P. v. S. Rayappa has held that testimony of witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is a interested witness.
11. The Supreme Court in State of U.P. v. Kishan Chand 2004 SCC (Crl) 2013 has held that the testimony of an injured witness has its own relevance and efficacy. The fact that the witnesses sustained injuries at the time and place of occurrence lends support to their testimony that the witnesses were present during the occurrence.
12. It is not the correct approach for judging in cases of bilateral clash as to which party is the aggressor. This question cannot be determined on the basis of the number of injuries found on the side of the complainant or the accused person. For purpose of recording a finding as to whether the prosecution party or the accused party was the aggressor, all the evidence adduced on behalf of the parties and the relevant circumstances have to be taken into consideration. It need not be point out that in such cases it cannot be urged that there are two parallel versions of the occurrence before the court. The real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubts; the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence.
13. Undisputedly A2, A3 and A5 also sustained injuries in the same occurrence. A brief description of the scene is essential to know as to whether the assembly of P.Ws.1, 4 to 8 and A1 to A5 at the time of incident can be construed as unlawful assembly.
14. An 'unlawful assembly' is an assembly of five or more persons, if their common object is -
1) to overawe by criminal force
a) the Central Government, or
b) the State Government, or
c) the Legislature, or
d) any public servant in the exercise of lawful power;
2) to resist the execution of law or legal process;
3) to commit mischief, criminal trespass, or any other offence;
4) by criminal force;
a) to take or obtain possession of any property, or
b) to deprive any person of any incorporeal right, or
c) to enforce any right or supposed right;
5) by criminal force to compel any person-
a) to do what he is not legally bound to do, or
b) to omit what he is legally entitled to do.
15. The essence of an offence under this section is the combination of five or more persons, united in the purpose of committing a criminal offence, and the consensus of purpose is itself an offence distinct from the criminal offence, which these persons agree and intend to commit.
16. The house of the accused persons and the prosecution party situate in close proximity. Indeed the house of A1 is on the rear side of the house of the deceased. The genesis of the dispute commenced when A1 stocked firewood and cheeki sticks in the open site adjacent to his house. It appears that deceased demanded A1 to remove the firewood touching the northern wall of his house so as to enable him to white wash the wall. On the date of incident at about 12 Noon the deceased was constructing copying (chunchu) wall on the terrace of his house to see the reaction of the accused. It is apposite to refer the cross- examination of P.W.4 in his own words:
We have not taken any implements like hammer for constructing of Chunchu because we placed only two slabs as chunchu. 7 of us went there, since some of us wanted to see the construction of chunchu. It is true that we have planted two stones as chunchu to verify whether the accused cause obstruction or not. It is not true to say that myself, P.W.1 deceased and others attacked the accused with regard to vacant site and caused them injuries and that we filed this false case as a retaliation. Accused are also coolies and Vader's attending to construction work. On the date of incident the accused went to coolly work as usual. It is not true to say that A2, A3 and A5 were turning the home we beat them. I saw axe in the hands of A3 only and all others were having sticks only. It is not true to say that I have not stated before the police who among those accused were having axes and who among those accused were having sticks. All the injured fell down on the terrace floor, blood bleeding profusely.
17. It is crystal clear from the evidence of P.W.4 that the deceased made preparations for constructing copying (chunchu) wall protruding on the site of A1 to see his reaction. There upon, the accused came to the scene and questioned the deceased for his constructing the copying (chunchu) wall protruding on the site of A1. On thorough analysis of the evidence placed on record, the trial court came to the conclusion that there was a free fight between the two groups. I have gone through the evidence of P.Ws.4 to 8. In the circumstances, the only reasonable conclusion that can be drawn is that the fight took place without pre-meditation, the same can be said to be quite sudden one and by reason there of no unlawful assembly can be said to have formed. It is well settled that in case of free fight each one is responsible for his own act and no other can be held responsible for the act of others by invoking the constructive liability. I am well supported by the decision of Apex Court in Ram Swaroop v. State of Haryana 1993 SCC SUPP (4) 344 on this aspect.
18. The trial court found that the accused are the persons responsible for causing death of the deceased and injuries to P.W.1, P.W.4 and P.W.5. With regard to the injuries caused to P.Ws.6 to 8, the trial court found the accused not guilty.
19. P.W.1 stated before the Court that A4 beat him with an axe on head and whereas A1 beat him with the stick on the left thumb. In his statement before the police he stated that A4 alone beat him. He attributes overt acts to A1 for the first time before the Court. His evidence with regard to attributing overt act to A1 is a major improvement over his police statement and therefore the same is liable to be excluded from consideration. With regard to the overt act attributed to A4, his evidence is cogent and consistent and therefore A4 alone is responsible for causing simple injury since injury received by P.W.1.on the head has been classified as simple in nature.
20. Learned Counsel appearing for the appellants/accused strenuously contended that P.W.1 omitted to state specific overt acts of the accused with regard to assault on the deceased or on any of the injured in the FIR and thus the evidence of P.W.1 attributing specific overtacts to the accused in respect of the deceased and the injured including himself cannot be relied on.
21. In a way he submits that the evidence of P.W.1 is an improvement over his First Information Report with regard to the specific overtacts attributed to the accused and thus the same is liable to be excluded.
22. The object of FIR from the point of view of the informant is to set the criminal law in motion. From the point of view of investigating authorities it has to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. FIR is not an encyclopedia. It is not the be all and end all of the case. Such report sets the law in motion and at the stage of investigation details can be gathered and filled up. Mainly because Ex.P.1 report is silent as to the overt acts of the accused in respect of the assault on the deceased as well as the injured, the evidence of P.W.1 cannot be brushed aside.
23. P.W.4 stated before the court that A1 dealt a blow with stick on his head, and A3 dealt a blow with an axe on his middle finger and right knee. The overt acts attributed to A1 is not supported by medical evidence since the doctor who examined him did not find any injury on the head. For better appreciation I refer the evidence of P.W.11 who examined P.W.4 and found the following injuries on his person:
i) A laceration injury of size 1/4" x 1/4" below the left knee.
ii) A laceration injury of size 2" x 1/4" x 1/4" just below the injury No. (i). Ex.P.10 is the wound certificate issued by him. Since the overt acts attributed to A1 is not supported by the medical evidence, he cannot be found responsible for the injury caused to P.W.4. With regard to the overt acts attributed to A3, it is fully corroborated by the medical evidence and therefore he alone is to be held responsible for causing injuries to P.W.4.
24. P.W.5 stated before the court that A3 beat him with a stick on the left cheek and on head. P.W.11 medically examined P.W.5 and found the following injuries on his person:
i) Laceration injury of size 1/2" x 1/4" x 1/4" over left frontal temporal region of head with active bleeding.
ii) Pain and tenderness with swelling of size 4" x 3" over left mandible with restricted movements of jaw.
Ex.P.5 is the wound certificate. He classified the injuries as simple in nature. The overt acts attributed to A3 are fully corroborated by the medical evidence. Therefore, A3 is to be held responsible for causing simple injuries to P.W.5.
25. P.W.1 stated that A2, A3 and A4 are the assailants of the deceased. According to him, A2 beat the deceased with an axe on head, A3 beat with reverse portion of axe on the chest and A4 beat with an axe on the right leg. The post mortem Doctor, who has been examined as P.W.2, did not find any injury on the chest of the deceased. With regard to the overt acts attributed to A2 and A4, the same are fully corroborated by the medical evidence. Therefore, A2 and A4 are to be held responsible for causing the death of the deceased. Since the deceased did not sustain any injury on the chest, A3 who is alleged to have dealt a blow on the chest of the deceased cannot be held responsible for the death of the deceased.
26. In view of the above discussion, I find A2 and A4 are to be held responsible for the death of the deceased, A4 is to be held responsible for causing simple injuries to P.W.1, A3 is to be held responsible for causing simple injuries to P.Ws.4 and 5.
27. In the result, this Criminal Appeal is partly allowed setting aside the conviction and sentence of A1 to A5 for the offence under Section 148 IPC, A1, A3 and A5 for the offence under Section 304 Part II r/w 149 IPC, A1 to A5 for the offence under Sections 326 r/w 149 IPC and they are acquitted of the same. The conviction and sentence of A2 and A4 for the offences under Sections 304 r/w 149 IPC is modified to that of Section 304 Part II r/w 34 IPC while maintaining the sentence imposed on them. The conviction of A3 and A4 for the offence under Section 324 r/w 149 IPC is modified to that of Section 324 IPC simplicitor (for A3 causing simple injuries to P.W.4 and P.W.5 and A4 causing simple injury to P.W.1) while maintaining the sentence imposed on them. The fine amounts paid by A1 and A5, if any, is ordered to be refunded. The bail bonds furnished by the appellants/ accused stand cancelled. The appellants 2, 3 and 4 (A2-Derangula Venkata Ramana, A3-Derangula Venkatesu and A4-Derangula Sreenivasulu) shall surrender before the trial court to serve the reminder of sentence.