Andhra HC (Pre-Telangana)
Kundavarapu Kondaiah @ Erra Kondaiah ... vs State Of Andhra Pradesh on 22 December, 1992
Equivalent citations: 1994(2)ALT209
JUDGMENT M.N. Rao, J.
1. This appeal filed by A-l to A-5 and A-7 to A-9 is from the judgment of the learned Additional Sessions Judge, Vijayawada in Sessions Case No. 5 of 1987 dated 8-10-1991. A-l to A-5 and A-7 to A-9 are the appellants herein. Originally, eighteen accused were tried by the learned Judge on nineteen charges. A-l, A- 2, A-5, A-8 and A-9 were convicted for the offence under Section 302 read with 34 of the Indian Penal Code and each of them was sentenced to life imprisonment. A-3 and A-7 were found guilty in respect of charges 1,4,6 and 7 and each of them was sentenced to a term of four years rigorous imprisonment besides lesser convictions for other charges. A-4 was convicted for the offence under Section 324 of the Indian Penal Code and sentenced to one year rigorous imprisonment and a fine of Rs. 500/-, in default two months simple in prisonment. A-7 and A-8 were convicted in respect of charge No. 13 for the afsence under Section 324 of the Indian Penal Code and each of them was antenced to a term of one year rigorous imprisonment and a fine of Rs. 500/- in default simple imprisonment for a term of two months. A-l to A-5 and A-7 to A-9 were found guilty for the offence under Section 148 of the Indian Penal Code and each of them was sentenced to two years rigorous imprisonment and a fine of Rs. 500/-, in default simple imprisonment for two months. In respect of all the other charges, the accused were acquitted.
2. In the village of Anumanchipalli within the jurisdiction of Jaggayyapet police station in Krishna District there are two powerful caste groups, one of Kammas and the other of Kapus. The deceased, Yanala Venkateswara Rao, was the leader of the Kamma community. There are twenty houses of Kammas in the village and the Kapus houses are about seventy. The version of the prosecution is that on 14-1-1986 at about 10-30 a.m., near the house of one Meesala Ramaiah, father of A-5, all the accused formed themselves into an unlawful assembly and caused the death of the deceased Yanala Venkateswara Rao and during the course of the same transaction, they also caused injuries to P.Ws.l to 3,6,7 and the son of P.W.8. The accused are closely inter-related. Except A-11 and A-12 who are Harijans by caste, the rest of the accused are Kapus. A- l is the father of A-7, A-4 is the father of A-8, A-5 is the brother-in-law of A-10, A-9 is the nephew of A-17 (brother's son), A-16 is the nephew of A-15 (brother's son) and A-3 is the sister's son of A-2. A-l and A-2 are said to be the leaders of Kapus in the village. A- l was Upa-Sarpanch of the Gram Panchayat. P.W.I is the son of the deceased Yanala Venkateswara Rao and P.W.9 is the wife of the deceased. In the elections held to Lok Sabha the deceased worked for the Congress Party while the accused supported the Telugu Desam Party. At the time of the polling, there was some disturbance at the polling booth involving the two groups. At the time of the Jatara in the village there was also a dispute between the two groups on the question of the order of priority in making offerings to the deity and in that connection, an altercation took place. On the Sankranthi day i.e., 14-1-1986, the date of incident, the deceased accompanied by his son P.W.I went to his lemon garden in the morning. P.W.2 owns a lemon garden by the side of the garden of the deceased and P.W.3 went to the garden for the purpose of fixing wages for digging pits around the plants. The deceased and P.Ws.l, 2 and 3 were returning home from the lemon garden after completing their work. When they came near the house of Meesala Ramaiah (father of A-5), it is alleged that all the accused rushed towards them from the house of Meesala Ramaiah shouting "Yanalodu is coming, do not leave him today, kill him". A-l and A-2 dealt blows with axes on the head of the deceased. A-3, with a crowbar, dealt a blow on the left leg of the deceased. A-4 beat the deceased with an axe on the left eyebrow and A-5, with an axe, dealt a blow on the head. A-6 beat the deceased with a hand-hoe (Dokudu Para). A-7 dealt a blow with a crowbar on the left hand of the deceased. A-8 hit the deceased on the head and on the left hand with a crowbar. An axe blow was dealt by A-9 on the head of the deceased. Thereafter A-10 to A-18 indiscriminately caused injuries to the deceased after he had fallen down with crowbars, sticks and axes. P.W.I went to the rescue of his father and he was beaten with an axe by A-2. P.W.2 when intervened was hit by A-l with an axe on the nose; A-3 hit him on the left eyebrow with a crowbar and A-7 dealt a blow with a crowbar on the lower portion of the left cheek. P.W.3 also sustained injuries when he intervened; A-7 and A-8 beat him with crowbars on the head. P.W.4 Inturi Pushpalatha on seeing the incident rushed to the spot but she was pulled aside by A-2 who abused her why she came there. P.W.6 was returning at that time from the rice mill of one Oruganti Venkateshwara Rao. He witnessed the attack on the deceased and others but when he intervened he was also beaten by some persons belonging to the accused group. P.W.7 also was alleged to have been beaten by some of the accused but at the trial he did not support the prosecution and so, he was declared hostile. P.W.8 and his son were returning home from the fields about the time when the incident was happening. P.W.8 had witnessed the incident but being afraid he ran away from the scene and when they were fleeing, someone hurled stone which hit his son. After the beating was over it was alleged that the accused party placed carts across the road, blocked the traffic and started pelting stones. P.W.10 who came there in a tractor had to stop it. Because of the obstruction and pelting of stones which went on for About 2 1 /2 to 3 hours people were prevented from going near the deceased. After that, all the accused left the scene. P.W.10 removed the carts placed across the road and found the deceased Yanala Venkateswara Rao in a pool of blood in front of the house of Meesala Ramaiah. P.Ws.3, 4 and others also were there. By then, Yanala Venkateswara Rao was alive. Alongwith P.Ws.l and 9, the injured Yanala Venkateswara Rao was taken to the police station.
3. On the same day at about 2.15 p.m., A-8, Nandanamudi Bhaskara Rao, went to the police station, Jaggayyapet, with injuries and informed the Sub- Inspector, P.W.16, that he was beaten with sticks by the deceased and others. His statement was recorded by the Sub-Inspector and an entry was made in the General Diary, Ex.D-80, and he was sent with a memo to the hospital for treatment. The Sub-Inspector started to go to the village Anumanchipalli and when he was proceeding, he saw the deceased being brought in a tractor by P.Ws.l and 9. At about 3.00 p.m., they came to the police station and when the Sub-Inspector tried to record the statement of Yanala Venkateswara Rao, he found him in an unconscious condition. He, therefore, immediately sent Yanala Venkateswara Rao with a memo to the hospital for treatment. P.Ws.l and 9 accompanied Yanala Venkateswara Rao to the hospital. At about 3.30 p.m., P.W.I returned to the police station from the hospital and presented a written report Ex.P-1 which was registered as Cr.No.7 of 1986 by P.W.16, Sub-Inspector under Sections 147,148,149,341 and 307 of the Indian Penal Code. Ex.P-34 is the first information report sent to the Court of Judicial First Class Magistrate, P.W.14 the Deputy Civil Surgeon, Government Hospital, Jaggayyapet, examined Yanala Venkateswara Rao at 4.20 p.m., and found him to be conscious and answering questions. Ex.P-26 is the entry in the accident register relating to the deceased. At about 5.00 p.m., the deceased succumbed to the injuries. Between 3.30 p.m., and 6.00 p.m., on that day, the doctor, P.W.14, examined P.Ws.l, 2,3,6, 7, one Gamini Narayanamma, mother-in-law of A-l and one Kundavarapu Laxmamma, wife of A-l and issued wound certificates mentioning the nature of the injuries sustained by them. P.W.16 after registering the crime visited the scene of offence at the village and returned to the police station at 17.30 hours. The intimation as regards the death of Yanala Venkateswara Rao was received by him at 17.35 hours - Ex.P-35 is the intimation from the hospital. He then altered the section in the first information report by adding Section 302; Ex.P-36 is the altered first information report. The Inspector of Police, Nandigama, P.W.17, on the same day at 17.35 hours received a telephone message from the Sub-Inspector, P.W.16, about the commission of a murder in Anumanchipalli village. He then proceeded to Jaggayyapet, reached the place at about 18.15 hours, went to the hospital, examined P.Ws.l to 5,7,9 and others and recorded their statements. On the next morning he went to the village and prepared the observation report of the scene, Ex.P-4 and a rough sketch Ex.P-38. After returning to Jaggayyapet he held inquest over the dead body from 8.00 a.m., to 11.30 a.m., in the presence of P.Ws.12 and 15. Ex.P-3 is the inquest report. On the next day i.e., 15-1-1986 at 11.45 a.m., the Deputy Civil Surgeon, P.W.14, conducted post-mortem examination on the dead body of the deceased; Ex.P-33 is the post-mortem certificate. In the opinion of the doctor the deceased would appear to have died of shock and haemorrhage due to lacerated multiple injuries to the head and fracture of frontal bone, both bones of left leg, left ulna, both bones of right fore- arm and meta-corpal bones of left and right hands. On 20-1-1986 the Inspector of Police arrested A-l, A-3, A-4, A-8, A-10, A-17 and A-l8 and pursuant to the statements said to have been made by A-l, A-3, A-4 and A-8 - Exs.P-5 to 8 - recoveries of M.O.I axe, M.O.5 crowbar, M.O.2 axe and M.O.6 crowbar were effected and the same were seized under Exs.P-10 to P-13. On 6-2-1986 A-6, A-7, A-9, A-13, A-14, A-15 and A-16 were arrested. Exs.P-15 to P-17 are the statements alleged to have been made by A-6, A-7 and A-9, pursuant to which M.O.8, hand-hoe (Dokudu Para), M.O.7, crowbar and M.O.3, knife were recovered at their instance under Exs.P-18 to P-20. A-2 and A-12 surrendered in the Court of Judicial First Class Magistrate, Jaggayyapet, on 7-2-1986. A-2 and A-12 are alleged to have made statements Exs.P-22 and P-21, pursuant to which M.O.4 axe and M.O.9 stick were recovered under Exs.P-24 and P-25.
4. In all, seventeen witnesses were examined by the prosecution; one of them, P.W.7, turned hostile. After the evidence of the prosecution witnesses was over, when examined under Section 313 of the Code of Criminal Procedure, the accused denied their complicity. The defence version is that on the date of the incident i.e., 14-1-1986 at about 11.00 a.m., when A-8 was at his brinjal garden, he was attacked by the deceased Yanala Venkateswara Rao with a stick and was chased by the deceased and some others. He ran for his life and took shelter in the house of A-l. Thereafter the deceased and his men attacked the house of A-l and in that attack, A-3, A-18, A-l's wife and mother-in-law sustained injuries. Both the groups hurled stones at each other. A-l escaped from his house rushed to the post-office which is close by and booked five trunk calls to Jaggayyapet police station between 1.40 p.m., and 2.30 p.m., to inform the police about the incident, but the police did not turn up. A-8 went to the police station and gave complaint. In support its plea, the defence examined five witnesses. D.W.I is Dr. K. Narayana, Civil Assistant Surgeon, Government Hospital, Jaggayyapet, who examined A-8 on 14-1-1986. Ex.D-59 is the entry in the accident register showing that A-8 was admitted in hospital on 14-1-1986 and discharged on 20-1-1986. Dr. B. Visveswara Rao, D.W.2, Civil Assistant Surgeon, Nandigama, on 24-1-1986, examined A-3 and issued Ex.D-60 wound certificate in respect of the injuries found on A-3. D.W.3 is the branch post- master who deposed that at about 1.30 p.m., on 14-1-1986, A-l and A-2 came to his office, informed him that there was an altercation going on at their house and booked five trunk calls to the police station, Jaggayyapet, for which he issued receipts nothing the time of each call. Exs.D-63 to D-67 are the receipts. D.W.4 is an advocate at Jaggayyapet who was appointed as Commissioner by the Munsif Magistrate on 16-1-1986 in Crl. M.P.No.45 of 1986 filed by Meesala Ramaiah in respect of search of his son, A-5. Likewise, in respect of the search of A-9 Crl.M.P. No. 122 of 1986 was filed in which D.W.5 one K.V. Ramachandra Murthy who at that time was practising as an advocate, was appointed as Commissioner. The plea of A-5 was that he was not present at the scene, but was undergoing treatment at Shamshabad on the date of the occurrence.
5. Accepting the evidence of P.Ws.l to 6 and 8, the learned Judge convicted the accused as stated supra. Before the learned Judge it was strenuously urged for the accused that the incident did not take place in the manner in which it was spoken to by the prosecution witnesses, that the deceased did not sustain the injuries at 10.30 in the morning and that the medical evidence which was to the effect that undigested food was fround in the stomach of the deceased, would go to show that after the deceased had taken lunch, the incident in which he sustained injuries resulting in his death had taken place. The failure of the prosecution to investigate into the complaint lodged by A-8 is a serious infirmity, especially when the prosecution admitted that the injuries sustained by A-8 and the deceased Yanala Venkateswara Rao, P.Ws.l and 9 took place in one and the same incident. Although the seizure of the weapons was disbelieved by the learned Judge, nonetheless he held that with sharp edged weapons injuries were caused to the deceased. He believed the prosecution witnesses as to the manner in which the incident happened. The incident as pleaded by the defence, according to the learned Judge, could not have happened as suggested; the injuries sustained by A-8 might be subsequent to the attempt on the deceased Yanala Venkateswara Rao. As the second incident was different from the first incident which resulted in the attack on the deceased; the learned Judge expressed the view that the right of private defence was not available to the accused. On the question of the failure of the prosecution to explain the injuries sustained by A-3, A-8 and A-18, the learned Judge expressed the view "that the prosecution is not bound to explain small and simple injuries though it is bound to explain grievous injuries found on the accused persons". In the result the learned Judge sentenced A-l, A-2, A-5, A-8 and A-9 to life imprisonment for inflicting injuries on the head of the deceased Yanala Venkateswara Rao and lesser sentences were awarded to A-3, A-4, and A-6 for causing minor injuries.
6. Shri C. Padmanabha Reddy, learned Counsel for the accused has contended strenuously that the case of the prosecution, as presented before the trial Court, did not happen in the manner in which it was alleged. The attack was at more than one place - at the field where A-8 was attacked, at the house of A-l where the womenfolk were attacked - and the subsequent pelting of stones by both the groups. The prosecution evidence with regard to the time of occurrence and place of occurrence, is not entitled to any credence and the defence version is probable in the circumstances. The medical evidence shows that undigested food was found in the stomach of the deceased. It takes about 3 to 4 hours for vegetarian food to be digested. When the evidence of P.W.9 - the wife of the deceased - was that in the morning at 7.30 the deceased had eaten two Ariselu and drank one cup of coffee, it would not have remained undigested till about 11.00 a.m., when the incident was alleged to have taken place. The complaint given by A-8 being earlier in point of time, namely, 2.15 p.m., is a clear pointer that the accused party people sustained injuries in the same incident in which the prosecution party were involved. The admission made by the Investigating Officer, P.W.17, that the injuries sustained by the accused as well as the prosecution witnesses and the deceased were in the same incident demolishes the theory of the prosecution that the accused party are the aggressors. The failure of the prosecution to conduct any investigation into the complaint lodged by A-8 and the failure to explain the injuries sustained by the accused, creates a reasonable doubt as to the credibility of the entire prosecution version, and as the circumstances pointed out by the defence probablise their version, the accused are entitled to acquittal and the prosecution story must be disbelieved.
7. The first circumstance to be noticed is about the time when the incident was said to have taken place. According to P.W.9, the wife of the deceased, at about 7.30 a.m., the deceased had eaten two Ariselu and drank a cup of coffee, went to the lemon garden and returned at about 11.00 a.m., when the incident occurred. P.Ws.l, 2,3 and 6 are injured witnesses. P.Ws.4,5,7 and 8 are the eye- witnesses. Ex.P-38 is the sketch of the scene and the topography of the area indicating the houses of the accused and the location of the main road. From this sketch it is difficult to make out anything. Ex.D-2 is a sketch filed by the defence. It is more clear and its authenticity was not doubted by the prosecution witnesses. From the National highway there is a road leading to the lemon garden of the deceased. There is a panshop at the trijunction and a road connects the highway with the house of the deceased. The house of Meesala Ramaiah, father of A-5, the building where the post-office is located are facing the National highway. The house of A-l opens into a small by lane behind the National highway. There is another road connecting the National highway with the houses of the prosecution party and if one traverses the road, there is no need to cross the house of the accused party but it was brought out in the evidence of the prosecution witnesses that this road was laid subsequent to the occurrence. The eye-witnesses account is that at about 11.00 a.m., when the deceased, Yanala Venkateswara Rao, accompanied by P.Ws.l and 2 was returning from the lemon garden and when they reached the house of Meesala Ramaiah, father of A-5, an attack took place. As already noticed, the house of A-l is not facing the highway. It opens into a small by lane behind the National highway. Ex.P-1 is the report given by P.W.I as to how the incident occurred. In this report P.W.I has stated that when he, his father, P.W.2 Nabi Saheb and P.W.3 Veeraswamy were returning from his lemon garden at about 10.30 hours and when they reached the house of Meesala Ramaiah, A-l, A-2, A-4 and some others came from Ramaiah's house and beat his father. The specific blows dealt by A-l, A-2, A-3, A-4, A-5, A-6, A-7, A-8 and A-9 with axes and crowbars were mentioned. After his father fell down, P.W.I stated in Ex.P-1 that A-10 to A-18 along with rest of the accused beat his father indiscriminately with axes and crowbars. Thereafter they brought his father to the police station on a tractor. Ex.P-34 is the printed first information report. The first page of Ex.P-34 in paragraph 3 which relates to description of the offence reads as follows:-
"On the forenoon of 14-1-1986 at about 10.30 hours Yanala Venkateswara Rao (deceased) who is the father of the complainant while going to his house from his lemon garden along with the complainant and two others, on meeting (reaching) the house oil the first accused, the first accused alongwith 17 others gathered as an unlawful assembly assessed with deadly weapons waylaid and attacked the father of the complainant with an intention to kill him and cause serious injuries to him....."
The aforesaid English translation is different from the original Telugu version in which it was mentioned that the accused party people came out of the house of Meesala Ramaiah. On this score, the defence version as to the place of occurrence cannot be brushed aside. Ex.P-34 was registered at 15.30 hours on 14-1-1986. Ex.D-80 is the General Diary entry dated 14-1-1986 maintained by the Jaggayyapet Police Station. In the General Diary, in detail all the events that took place are recorded. Ex.D-80 shows that at 14.15 hours, A-8, N. Bhaskara Rao came with a bleeding head injury to the police station and at 14.45 hours his statement was recorded. The entry against the time 14.45 in the General Diary contains the gist of the statement made by A-8. A-8 stated before the police that on 14.1.1986 at 11.00 a.m., when he was at his field, Yanala Venkateswara Rao (the deceased), his sons, his two brothers-in-law and some others pelted stones and beat him with sticks. One of the assailants was armed with a knife. The deceased, Yanala Venkateswara Rao, hit him on the head and they chased him. The assault against him was due to previous rivalry. He, therefore, came to the police station to give the complaint. The entry at 15.00 hours reads that A-8 was sent to the hospital. At 15.55 hours the entry recorded in the General Diary was to the effect that, when the Sub-Inspector, P. W. 16, started from the police station he came across the injured, Yanala Venkateswara Rao was being brought in a tractor by Yanala Venkateswara Rao's son and wife and that Yanala Venkateswara Rao was in unconscious state and, therefore, without recording his statement, he was sent to Government hospital for treatment. At 15.30 hours another entry was made in the General Diary, which was to the effect that P.W.I informed the police that his father was beaten by A-l and some others and that his father was in unconscious state and had given a report to that effect. That report was registered as Cr. No. 7/86. Ex.P-36 is the altered first information report after the intimation of the death of the deceased was received. Ex.P-36 was registered at 17.35 hours, whereas Ex.P-34 was registered at 15.30 hours. Both these exhibits were received by the concerned Magistrate within a gap of five minutes between 7.00 p.m., and 7.05 p.m., on the same day. The Magistrate's residence is less than one hundred yards from the police station. The serial number of the printed first information report, Ex.P-34, is 550063 and the serial number of Ex.P-36 is 550073. Within a gap of these two hours and five minutes, ten first information reports were registered in the police station.
8. The contention of the learned Counsel for the appellants is that, because of more number of the first information reports registered on that day, the police filled up the first page of the printed first information reports and on the reverse of Ex.P-34, the gist of the statements were incorporated subsequently, and that is the reason why on the first page of Ex.P-34 it was mentioned that the incident had taken place near the house of the first accused. We find sufficient force in this contention, especially when the other circumstances conjointly are considered. As the Magistrate's house was located within a distance of hundred yards from the police station, even if the work of delivering copies of the first information reports was entrusted to two different police constables as stated by P.W.16, they would not have been received at about the same time by the Magistrate. It must be noted that in Ex.P-1 it was mentioned that immediately the injured Yanala Venkateswara Rao was brought to the police station in a tractor. If the incident had taken place at about 10.30 a.m., as mentioned in Ex.P-1 and the injured was removed to the police station in a tractor, the report would not have been received at3.30 p.m., on that day, as the distance between the scene of occurrence and the police station is only twelve kilometres. It was only with a view to explaining away the delay in the registration of the first information report, Ex.P-34, that evidence was adduced that the prosecution party was prevented from reaching the police station as the accused placed carts across the road blocking their way. According to the prosecution, the incident happened in front of Meesala Ramaiah's house on the National highway. It is difficult to believe that, on the National highway where there is heavy traffic, the accused could have blocked the traffic by placing their carts for about 2 1/2 to 3 hours. The delay whatsoever caused by reason of blocking of the highway by the accused, was not mentioned in Ex.P-1. In the first information report, Ex.P-1, there is no reference to the blocking of the traffic and there was delay in reaching the police station because of the traffic block created by the accused.
9. It is settled law that the first information report, need not contain all the minute details as to how the incident has happened. Factual situation of the present nature, where circumstances point out probablising the version of the defence that both the time of the occurrence was altered and the scene was shifted - a discrepancy of this nature - assumes much relevance. The prosecution case that, because of the blocking of the traffic on the National highway, delay has occurred also fails to the ground when viewed from a different perception. Ex.D-55 is the copy of the order under Section 111 of the Code of Criminal Procedure in M.C. No. 8/86 issued by the Sub-Divisional Magistrate, Vijayawada. P.W. 17 the same Investigating Officer was responsible for initiating the aforesaid proceedings before the Sub-Divisional Magistrate, Vijayawada. It is mentioned in Ex.D-55 that as a retaliation to the attack on Yanala Venkateswara Rao, the deceased in the present case, at 10.30 a.m., the present prosecution party people attacked the accused party at about 12.30 p.m., on that day with sticks and stones. This was brought on record by the defence for the purpose of showing that even the prosecution has recognised the incident relating to attack by the prosecution party on the accused persons. The learned Judge, in our considered opinion, has grossly erred in interpreting the significance of Ex.D-55 as indicative of the theory that the document supports the version of the prosecution. It does not, in our view, support the prosecution version; it probablises the defence version that the prosecution party attacked the accused and that there was free fight or pelting of stones by both sides. If really at 10.30 in the morning Yanala Venkateswara Rao was attacked resulting in mortal injuries, it is difficult to believe that within 1 1/2 to 2 hours thereafter, without caring to take him to hospital or lodging a complaint, the prosecution party ganged up their supporters and attacked the accused with sticks and stones. Therefore, Ex.D-55 is a clear documentary evidence to show that the incident did not happen in the manner presented before the Court by the prosecution. That there was pelting of stones by both sides cannot be ruled out; P.W.I son of the deceased in his earlier statement Ex.D-3 to the police recorded under Section 161 of the Code of Criminal Procedure stated that "injuriesare sustained to some others due to pelting of stones". His denial in the cross-examination of having made such a statement under Section 161 of the Code of Criminal Procedure to the police cannot be taken on its face value.
10. The evidence of the Investigating Officer clearly probablises, in our view, the defence version. Ex.D-80 the entry in the General Diary relates to the complaint of A-8 at the Jaggayyapet police station at 2.15 p.m., on 14-1-1986. No investigation was conducted according to the Investigating Officer on the basis of the complaint given by A-8. He was in-patient for one week in the hospital. We cannot ignore the fact that A-8 sustained bleeding injuries on the head and the General Diary entry shows that the offence alleged is a cognizable one attracting Section 307 of the Indian Penal Code - attempt to commit murder. We find it extremely difficult to believe that no investigation whatever was done by the police. The evidence of P.W.17 the Investigating Officer on this aspect bristles with an irreconcilable inconsistencies. He admitted that the report given by A-8 discloses a cognizable offence. He did not ask the Sub-Inspector why the complaint was not registered and investigation conducted. He asserted that "there was only one incident in Anumanchipalli on 14-1-1986 but different reports were given by A-8 and P.W.I with different versions regarding the incident". But he admitted that "the report given by A-8 in the police station is the earliest in point of time among the reports received in the police station". It was further elicited from the Investigating Officer that "I did not investigate separately into the report given by A-8. A-8 received injuries on 14-1-1986. I have not investigated into this crime as to how A-8 sustained injuries. The charge-sheet is filed on the basis of investigation made in this case. It is noted in the charge-sheet that A-8 also received simple injuries during the incident. There is no basis available in the investigation into this crime for this statement". Having gone that far, the Investigating Officer presumably realising that an admission of failure to investigate into a cognizable offence might be faulted by the Court, obviously invented a reason by stating "the injuries received by some of the accused and their relatives was investigated in another crime of Jaggayyapet police station and not in this case. I cannot say whether the crime in which the injuries of A-8 and others was investigated was registered on the basis of the report of A-8". We are constrained to observe that the evidence of the Investigating Officer does not inspire confidence. It is rather surprising that the Investigating Officer has chosen to make such a prevaricative statement. If a crime was registered by Jaggayyapet police station on the basis of a complaint lodged by A-8, it is impossible to believe that the Circle Inspector, P. W. 17 whose jurisdiction extended over the Jaggayyapet police station was not aware of it.
11. The learned Judge has not adverted to the serious infirmities in the prosecution case. The defence version was rejected by the learned Judge based on a submission made by the prosecution that there was no positive evidence with regard to the attack made by the deceased against A-8 in the brinjal garden. The defence version viewed in the context of the entire prosecution case, appears to be probable. The attack on the accused party was described by the learned Judge. "It may be that subsequent to the causing of injuries to Yanala Venkateswara Rao and when he became unconscious, the partymen of Yanala Venkateswara Rao might have raided the house of A-l to retaliate". This was nobody's case.
12. The medical evidence also probablises the defence version as to the time when the incident had taken place. P.W.I the injured witness and the son of the deceased has stated that in the morning his father had taken breakfast. P.W.9 the wife of the deceased said that her husband had eaten two Ariselu (rice flour preparation) and drank a cup of coffee. P.W.14 the Deputy Civil Assistant Surgeon who conducted post-mortem examination on the body of the deceased, has stated that the stomach contained four ounces of semi solid brownish food material. For complete digestion of vegetarian food it takes four hours and the doctor admitted "If one consumes two Ariselu and a cup of coffee it may take 3 to 4 hours maximum time to complete the digestion. It is possible that the deceased might have taken the food before 3 or 4 hours prior to his death. If the deceased had taken two Ariselu and coffee at 7 or 8 a.m., that food would have been completely digested at any rate by 12 noon". We are inclined to agree with the submission of the learned Counsel for the appellants that the deceased being a healthy person aged about 45 years whose profession was agriculture, the digestion of food - Ariselu - would not have taken more than 3 to 4 hours. On this aspect the learned Public Prosecutor has submitted that as the medical opinion does not rule out the possibility of the process of digestion coming to a halt if a person is in a state of shock and as the incident happened at about 10.30 or 11.00 a.m., the food consumed by the deceased remained in the stomach undigested. We are not inclined to agree with this statement for the reason there is no evidence at what point of time the deceased went into shock. In the chief examination it was not elicited from the doctor that it was possible that immediately after the injuries were sustained the deceased went into a state of shock. The doctor's evidence is that "the deceased might have fallen into shock 2 or 3 hours prior to 4.30 p.m., when I examined him". This statement lends support to the defence plea that the incident must have happened around noon after the deceased had taken his noon meal.
13. That the incident did not happen in the morning emerges, in our view, from other circumstances also. The evidence of D.W.3 the village post-master at the relevant time is that on 14-1-1986 A-l and A-2 came to the post-office at about 1.30 p.m., informing that there was trouble going on at their house. Five trunk calls were booked to telephone No. 33 - Jaggayyapet police station - between 1.40 and 2.20 p.m., and all the calls matured. The receipts issued by him were brought on record as Exs.D-63 to D-67. Although it was elicited in the cross-examination that the post-master was under suspension on the ground that there was shortage of cash of Rs. 500/- in the post-office, no suggestion was made that the receipts Exs.D-63 to D-67 were fabricated. The version of the defence is that when the prosecution party attacked the accused party after beating A-8 at his brinjal garden, A-l escaped from his house and rushed to the post-office to inform the police and inspite of making five trunk calls, police did not arrive.
14. The case of the prosecution that A-l, A-2, A-4, A-5 and A-9 were armed with axes, A-3,A-7 and A-8 with crowbars and A-6 with hand-hoe (Dokudu Para) also appears to be highly doubtful. Ex.P-33 is the post-mortem certificate which mentions as many as 14 external injuries. The injury Nos. 5 and 12 alone are incised wounds and the rest are contusions, fractures and lacerated wounds and they are as follows:-
"External injuries:-
(1) A diffuse swelling of left leg at its lower 1/3 with overlying lacerated wound 1" x 1/2" x 1/2" on opening there is commuted fracture of both bones of leg at its lower 1/3 and fracture of lower end of tibia at its lower end.
(2) A diffuse swelling of right fore-arm 6" x 4", on opening fracture of both bones of fore-arm (commuted) at its middle.
(3) Diffuse swelling of right on opening there is fracture of 4th and 5th Meta-carpal bone at the middle portion.
(4) Diffuse swelling of left elbow joint 6" x 6" with overlying abrasion of 1/2" x 1/2" on opening there is fracture of upper and of left ulna.
(5) An incised wound over the left eye-brow horizontally 3" x1 /2" x1 /4".
(6) A lacerated wound on the left side of head 4" x 3" x bone deep vertically.
(7) A lacerated wound 1" above No. 6 vertically 4" x 2" x 1".
(8) A lacerated wound at the right side of fore-head at the level of hair line horizontally 3" x 2" x 1".
(9) A lacerated injury over right side of head vertically 4" x 2" x.
(10) A lacerated wound on the head in front horizontally 4" x 2" x 1".
(11) A lacerated wound on the right side of head obliquely 4" x 2" x 1".
(12) An incised wound on the left lower eye-lid 2" x 1" x 1/2".
(13) Diffuse swelling of fingers of both hands, on opening there is fracture of right 4th and 5th meta-carpal bones and fracture of left 3rd, 4th and 5th meta-carpal bones.
(14) A lacerated injury on the right foot in front 1" x 1/2" x 1/4". Could they be caused with axes and crowbars?
15. In the cross-examination the doctor admitted that "injury Nos. 5 and 12 in Ex.P-26 may not be incised wounds but they will be incised-looking wounds. It is possible that a sharp edged stone may cause injury Nos. 5 and 12. He further stated that "injury Nos. 5 and 12 are possible to be caused by use of axes however with less force. They are possible to be caused by sharp edged stones". If nine persons were armed with deadly weapons like axes and crowbars and attacked the deceased with wild frenzy, it is impossible to believe that the injuries would be inflicted by them "with less force". The attack must necessarily be with full force. Exs.P-31, P-29, P-28 and P-30 are the wound certificates in respect of the injuries found on P.Ws.l, 2,3 and 6 respectively. Ex.P-32 is the wound certificate in respect of A-8. The injuries mentioned in these wound certificates show that they could not have been inflicted with weapons like axes and crowbars. It is only in the case of P.W.3 who sustained one simple injury the doctor has not ruled out the possibility of the injury being caused with an axe. In respect of the other wound certificates the doctor's opinion is that the injuries were probably caused by a blunt weapon.
16. The injury found on A-8 was a lacerated wound on the right side of fore- head vertically 2" x 1" x 1/2", bleeding (Ex.P-32 wound certificate). He was in- patient in the hospital for one week. The wound certificates in respect of the injuries sustained by A-3, A-8 and A-18 are Exs.D-60 to D-62. The prosecution has totally failed in its primary duty of explaining the injuries found on the accused. The injuries are not very trivial in nature as was sought to be made out by the prosecution. The learned Public Prosecutor says that the injuries have been sustained by the accused in the stone throwing that happened immediately after the incident in question. There is no scintilla of evidence from the side of the prosecution in support of this plea. In the face of the admission by the Investigating Officer that he did not investigate as to how A-8 sustained injury, the learned Public Prosecutor's plea cannot be accepted. What is more important is that from the side of the defence suggestions were made to the prosecution witnesses P.Ws.l and 2 that both sides started pelting stones at the house of A-l and in that melee the injuries were sustained by some other prosecution witnesses. But this was denied by both the witnesses. Even in the charge-sheet it was mentioned that A-8 received injuries in the incident because of pelting of stones. But that line of investigation was not pursued. The law on this aspect is well settled. In Lakshmi Singh v. State of Bihar, ., it was held:
"It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the prosecution genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with true version of the occurrence....."
The Supreme Court also observed that:
".....there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries....."
The present case does not fall under the above category justifying the prosecution case even though the injuries found on the accused have not been explained. It is not the case of the prosecution that there was a fight between both the groups and in the course of the fight some of the accused sustained injuries for which allegedly the plea of private defence was putforth and that the right of private defence would not extend justifying causing of mortal injuries on the deceased. As already noticed, the defence version was totally different. But the learned Judge, mistaking the defence version as one of private defence, observed that the right of private defence was not available to the accused and on that view rejected the defence plea.
17. It is true that the injured witnesses (P.Ws.l, 2, 3 and 6) and the eye witnesses (P.Ws.4,5,7 and 8) have deposed about how the incident happened and the infliction of the blows by the accused party. The fact that there is consistency in the evidence of these witnesses as to how the incident occurred cannot be considered in isolation. The whole story of the prosecution must be judged taking into account all the circumstances. As already noticed by us, the prosecution has failed in its primary duty to enquire into the complaint lodged by A-8 and explain the injuries found on the accused. From the fact that the earliest complaint was made by A-8, the infirmities we found in the prosecution witnesses as to the delay in lodging the complaint to the police, the medical evidence as to the time of death and the weapons with which the injuries could be caused, the time of receipt of copies of Exs.P-34 and P-36 by the Magistrate and the mention of the incident as having taken place at the house of A-l in the first page of the printed first information report, Ex.P-34, are all circumstances, which when considered cumulatively, probablise the defence version that the whole incident did not happen in the manner in which it was pleaded by the prosecution. The prosecution case, therefore, must be thrown out in view of the serious infirmities noticed.
18. In the result, the appeal is allowed. The judgment of the learned Additional Sessions Judge is set-aside. The convictions recorded and the sentences imposed on the accused/appellants are set-aside and they, are directed to be released forthwith, if not required in any other case. The fine amounts if any paid by the accused shall be refunded to them.