Andhra Pradesh High Court - Amravati
H.S.Deva Dasu A1 Kurnool Dt Anr., vs State Of Ap., Rep Pp., on 29 September, 2020
Author: J. Uma Devi
Bench: C.Praveen Kumar, J.Uma Devi
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
&
THE HON'BLE Ms JUSTICE J.UMA DEVI
CRIMINAL APPEAL No.987 of 2015
(Heard and pronounced through Blue jeans App (virtual) mode since this mode is
adopted on account of prevalence of COVID-19 Pandemic)
JUDGMENT:(per Hon'ble Ms Justice J. Uma Devi) This appeal arises out of the judgment of the IV Additional District & Sessions Judge, Kurnool in Sessions Case No.602 of 2012, dated 20.07.2015, whereby the appellants were convicted and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1,000/- each, in default to suffer simple imprisonment for a period of two months each for the offence under Section 302 r/wSec.34 IPC, believing the version of the prosecution that they caused the death of Harijana Sandepogu Suresh (hereinafter referred to as 'the deceased') by inflicting blows with a beer bottle and big boulder on his head.
2. The legality and validity of conviction of them for the offence under Section 302 r/w.Sec.34 IPC is assailed raising the following grounds:
(i) The appellants were convicted wrongly by the learned IV Additional District & Sessions Judge, Kurnool though legally acceptable evidence was not placed on record by the prosecution to convict them for the offence under Section 302 r/w.Sec.34 IPC;
(ii) The testimony of PWs 1 to 4, 5 and 10 though appear to be untrustworthy, reliance is placed on their evidence instead of discarding the same;
(iii) The learned Sessions Judge failed to see that immediately after the incident no report was given by anyone of the relatives of the 2 CPK,J & JUD,J Crl.A.No.987 of 2015 deceased, viz., PWs 1 to 4, who were with the deceased at the time of the alleged incident; Till the Inspector of Police-PW 11 went to the hospital, there was no information in the jurisdictional police station i.e., IV Town Police Station, Kurnool about the murder of the deceased; The learned Sessions Judge without looking into this crucial fact, believed the prosecution story and convicted the appellants;
(iv) The evidence of PW 1 is silent as regard to her going to the house of PW.10 along with PWs 2 to 4 and the deceased. She has not stated anywhere in her evidence or in the statement made to the police that while she along with the deceased and PWs 2 to 4 was proceeding to the house of PW 10 to attend his daughter's halfsaree maturity function, the incident in question took place;
(v) The inconsistencies found in the evidence of PWs 1 to 4 and the omission found in their evidence though were material, they were not taken consideration by the learned Sessions Judge while appreciating their evidence;
(vi) Non-recovery of money from the shirt or pant pocket of the deceased though crucial and fatal to the prosecution case, the same has not been looked into by the learned Sessions Judge;
(vii) The complaint of PW 1 was prepared in the police station by the Inspector of Police long time after occurrence of the incident. The delay caused in lodging of the complaint by PW 1 in the police station which was nearer to the scene of offence though fatal to the prosecution case, the version of the eyewitnesses who were planted was believed by the learned Sessions Judge;
3 CPK,J & JUD,J Crl.A.No.987 of 2015
(viii) Though the medical evidence does not tally with the prosecution version, the appellants are convicted wrongly. The signatures of Accused Nos.1 and 2 are taken forcibly on their confessional statements; One of the witnesses in whose presence the confessional statement said to be made by the accused has not supported the prosecution case;
(ix) The presence of PW 5, watchman of MG Brothers Bajaj showroom though is disproved, the learned Sessions Judge instead of disbelieving the version of PWs 1 to 4 who's evidence is interested and is not corroborated by the evidence of PW 5, has placed reliance on prosecution version and thus, the judgment of the court below can be held as unsustainable in law and the same is to be set aside;
3. Before we deal with the grounds urged, we feel it appropriate to state the prosecution case:
The deceased-Harijana Sandepogu Suresh and A1-Harijana Sandepogu Deva Dasu were residents of Weaker Section Colony, Kurnool Town, other accused A2-Harijana Kondepogu Krishna was a resident of Jampala Sivaiahnagar, Kurnool Town, and all the three were eking out their livelihood by attending mason works and were known to each other. PW.1-Harijana Repalle Maddamma is the cousin of the deceased being the daughter of his junior paternal uncle. She had given her daughter Harijana Sandepogu Suvarnamma (PW 2) in marriage to the deceased. PW.3-Harijana Sandepogu Krishna is the brother of the deceased. PW.4- Smt.Nageswaramma was the wife of PW.3. PW.10-Harijana Sandepogu Maddilety was the elder brother of the deceased.
4 CPK,J & JUD,J Crl.A.No.987 of 2015
4. The prosecution version was that on 12.03.2012 around 4 p.m PWs.1, 3, 4 and the deceased and his wife started from Weaker Section colony in an auto to go to Bapujinagar where PW 10 was residing. When the auto was stopped near Bellary Chourastha, the deceased went on other side of the road to purchase bananas. While the deceased was proceeding towards pushing cart where the bananas were being sold, A1 and A2 who were present there near an electric pole, approached him and attacked him. A1 hit on the head of the deceased with a beer bottle, and after the deceased fell down, A2 lifted a boulder available on the road side and hit with the said boulder twice on the head of the deceased forcibly. On seeing the same, PWs.1 to 4 raised cries, immediately persons nearby came there and on seeing them, A1 and A2 fled away. As the deceased sustained grievous injuries to head, he was shifted to the Government Hospital, Kurnool and there it was declared that he was brought dead. The said incident took place according to the prosecution around 4.15 p.m. The motive for the accused to kill the deceased was that they strongly believed that the deceased was responsible for the death of brother of A1, who died in a road accident in the month of May, 2011.
5. The Inspector of police, who got the information about the occurrence of the offence at 4.45 p.m through Sub-Inspector of Police while he was on patrolling duty, rushed to the scene of offence at 5 p.m along with the staff and came to know that the injured was shifted to Government Hospital, Kurnool for treatment. On posting a guard at the scene of offence, he rushed to the Government Hospital, Kurnool, there he came to know about the death of the deceased and his body was kept in mortuary. He secured PW 1 and her relatives and came to IV Town 5 CPK,J & JUD,J Crl.A.No.987 of 2015 Police Station, Kurnool and there he recorded the statement of PW.1 at 6 p.m. Based on the statement made by PW.1 he registered a case in Cr.No.65 of 2012 under Section 302 r/w.Sec.34 IPC of IV Town P.S Kurnool and sent express FIRs to all the concerned officers and the original FIR to the Court of Judicial Magistrate of First Class, Kurnool. On the same day he visited the scene of offence at 9.30 p.m and prepared a mahazarnama incorporating its physical features and seized material objects viz., big boulder, broken pieces of beer bottle, bloodstained earth and controlled earth under the cover of Ex.P11. Rough sketch of the scene of offence was also prepared by him on the same day night. Inquest was held on the dead body of the deceased on the next day i.e., on 13.03.2012 in the morning at Government Hospital, Kurnool in the presence of PW 9 and another blood relatives of the deceased and seized bloodstained clothes of the deceased. On 14.03.2012 A1 and A2 were arrested by the Inspector of Police in the presence of PWs 7 and 8. The other material objects, such as, bloodstained shirts of the accused were seized during course of their arrest on their production by them. The material objects seized during the course of investigation were sent to forensic laboratory for analysis and report. After receipt of postmortem report of the deceased and the report from the forensic laboratory, charge sheet was filed against the accused.
6. The Judicial Magistrate of the I Class, Kurnool, before whom the charge sheet was filed by PW 11, took cognizance of the offence under Section 302 r/w.Sec.34 IPC and numbered it as PRC No.74 of 2012 and committed it to the court of Sessions Division, as the offence alleged was to be tried exclusively by the court of Sessions Division. The Principal 6 CPK,J & JUD,J Crl.A.No.987 of 2015 District and Sessions Judge, Kurnool, to whom the case was committed, numbered it as S.C.No.602 of 2012 and made it over to the Court of IV Additional District & Sessions Judge, Kurnool for disposal, as per law.
7. The learned IV Additional District & Sessions Judge, Kurnool, believing the testimony of witnesses examined by the prosecution and the material placed before him by the prosecution in support of its case, convicted the appellants for the offence under Section 302 r/w.Sec.34 IPC. Challenging the conviction, the appellants preferred this appeal.
8. Assailing the impugned judgment, Smt.A.Gayatri Reddy, learned counsel for the appellants, made her submissions reiterating the grounds urged in the appeal grounds, as mentioned supra. While arguing the case at length, she submitted that the trial Judge placed reliance on the testimony of PWs 1 to 4 who's evidence was full of inconsistencies and omissions and recorded conviction against the appellants. PWs.1 to 4 and 10 out of interestedness in the deceased gave evidence supporting the prosecution version. As per her contention, the delay in lodging the complaint though fatal to the prosecution case, the same was not taken into consideration by the trial Judge. Non-recovery of money from the shirt or pant pocket of the deceased though fatal to the prosecution case, the same was simply ignored. The version of PWs.1 to 4 and 10 though was not supported or corroborated by any independent witness, the same was believed by the trial Judge to convict the accused. The so-called independent witness PW 5 had not seen the injured and failed to identify the appellants. It was nowhere stated in the evidence of PW 5 that the appellants attacked the deceased. The evidence of PW 5 though was silent that he saw the appellants attacking the deceased, it was held 7 CPK,J & JUD,J Crl.A.No.987 of 2015 wrongly by the trial court that evidence of PWs 1 to 4 was supported by PW 5. The trial court, as per her contention, was not justified in convicting the accused for the offence under Sec.302 r/w.Sec.34 IPC.
9. Refuting the aforementioned contentions of the learned defence counsel, the learned Public Prosecutor appearing for the State contended that PWs 1 to 4 were with the deceased at the time of offence; while all of them along with the deceased were proceeding in an auto towards Bapujinagar to attend half-saree function of the daughter of PW 10, the auto was stopped for a while near Bellary Chourastha; When the deceased got down the auto and went on other side of the road to purchase bananas which were being sold out in a pushing cart, the accused were present there; They had strong belief in their mind that the deceased was responsible for the death of the brother of A1 in a road accident; They attacked the deceased and killed him by hitting on his head with a beer bottle and with a big boulder. The objects used by the accused in the commission of offence were seized by the investigating officer on the same day night under the cover of panchanama prepared at the scene of offence.
10. The evidence of PWs 1 to 4 was fully supported by the evidence of PW 5-watchman of MG Brothers Bajaj Showroom, who saw the incident in which the deceased was killed. The incident took place around 4.15 p.m. The testimony of PWs.1 to 4 was consistent and cogent and free from any ambiguity. The evidence on record was thoroughly evaluated by the trial court and that the trial court had not committed any error in convicting the accused for the offence under Section 302 r/w.Sec.34 IPC. Simply because the eyewitnesses were the closely related 8 CPK,J & JUD,J Crl.A.No.987 of 2015 the deceased, the credibility of their testimony cannot be doubted. Seizure of the incriminating material objects, such as bloodstained broken beer bottle pieces and a big boulder, bloodstained earth from the scene of offence strengthens the version of PWs 1 to 4. Placing reliance on the testimony of PWs 1 to 4 and other supporting material, the trial court has recorded the conviction.
11. Having regard to the aforementioned submissions by the counsel of both parties, the point that arises for consideration is "whether the prosecution could prove its case against the appellants beyond all reasonable doubt so as to sustain the conviction and sentence recorded against them by the trial court"
12. Before we start our discussion to answer the question mentioned supra, we think it appropriate to refer the injuries noted by PW 6 in Ex.P2 postmortem report of the deceased. Following were the injuries found by PW 6 on the dead body of the deceased:
1) Lacerated injury of size measuring 16 x 12 c.m obliquely placed, bone deep noted over the left frontal region of the scalp with underlying fracture of the skull fracture. Small pieces of glass found at the injury site.
2) Lacerated injury of size measuring 9 x 2 c.m vertically placed, muscle deep noted over the right side of the occipital region of the scalp, small pieces of glass found at the injury site.
3) Lacerated injury of size measuring 6 x 2 c.m vertically placed, muscle deep noted over the right side of the occipital region of the scalp 1 c.m inner to the above injury. Small pieces of glass found at the injury site.
4) Pressure abrasion of size measuring 2 x 1 c.m noted over the right side of the cheek.
5) Scalp reflection shows diffuse contusion of left frontal, temporal and parietal region of the scalp of with contusion of left temporalis muscle.
9 CPK,J & JUD,J Crl.A.No.987 of 2015
6) Multiple fissured fractures of the left frontal, temporal and parietal skull bone were present.
7) Diffuse sub dural hemorrhage present over the both cerebral hemisphere of the brain matter.
PW 6 opined that the deceased-Harijana Sandepogu Suresh died due to intra-cranial hemorrhages associated with fractures skull bone due to head injury.
13. The nature of injuries mentioned in Ex.P2 postmortem report leave us with no doubt that the deceased was murdered or killed.
14. The only question is "whether these injuries are caused by the appellants; whether the incident took place in the manner spoken to by the prosecution witnesses".
15. The prosecution in the instant case though cited 16 witnesses examined 11 witnesses and marked Exs.P1 to P17 and MOs.1 to 9. On behalf of the accused no witnesses were examined, but portion of 161 Cr.P.C statements of PWs 2 and 3 were marked as Exs.D1 and D2.
16. The prosecution in the instant case claims that there are direct eyewitnesses to the incident and their evidence establishes that the accused are culprits and they are the persons who killed the deceased by inflicting wounds on his head with a beer bottle and a big boulder due to enmity they developed against him believing that he is the person responsible for the death of Devavaram, the younger brother of A1 and close friend of A2.
17. As the main plank of the prosecution case pivots on the evidence of PWs 1 to 4 and 5, and the credibility of their testimony is doubtful and untrustworthy according to the defence, the same needs to be re-evaluated. Since PWs 1 to 5 are the main witnesses for the 10 CPK,J & JUD,J Crl.A.No.987 of 2015 prosecution to contend that it has proved its case against the accused successfully, we feel it necessary to have a close look at their evidence.
18. PW 1-Mallepogu Maddamma is the cousin of the deceased- Harijana Sandepogu Suresh. As per her version, while herself, the deceased and his brother Krishna and his wife Suvarna were proceeding towards Bapujinagar where the house of PW 10 situated in an auto, the auto was stopped near Bellary Chourastha and there the deceased got down and crossed the road in order to bring fruits and went towards a pushing cart to purchase bananas, in the meantime, the accused who were present there, assaulted him; A1 hit on his head with a beer bottle and that A2 beat on his head and face with a big boulder and as the result of it, he sustained fatal injuries; Immediately they tried to shift him to hospital for treatment, but he died on the way to hospital, and that the doctor present in the hospital declared that he was brought dead.
19. Though PW 1 is cross examined at length by the defence, the same has not yielded any positive result in favour of the accused as regard to the incident of assault on the deceased by the accused. The deposition of PW 2, the wife of the deceased, is in consonance with the evidence of PW.2 and that she too has deposed the manner in which the deceased is assaulted. We do not find any artificiality in the evidence of PWs 1 to 4. Except eliciting some minor variations in the evidence of PWs 1 to 4 no other aspects, which favours the case of the accused are brought out. Their evidence appears to be consistent, cogent and reliable. Their evidence on material particulars remains unimpeaching. We have not noticed major contradictions in their evidence so as to unbelieve their testimony.
11 CPK,J & JUD,J Crl.A.No.987 of 2015
20. The prosecution in the present case by examining PWs 1 to 4, who's evidence is supported by PW 5, an independent witness, has proved the culpability of the accused in the commission of offence. The prosecution in the instant case by getting the rough sketch of the scene of offence and mahazarnama prepared under which the objects used in the commission of offence are seized, has proved the version of PWs 1 to 4 that the offence took place near MG brothers Bajaj Showroom in which PW.5 was working as watchman. The presence of PWs 1 to 4 at the scene of offence at the time of the alleged incident cannot be doubted. Simply because PWs 1 to 4 happen to be the close relatives of the deceased, the credibility of their testimony cannot be doubted and it cannot be said that they have given evidence in support of the prosecution case out of their interestedness towards the deceased. The trial court, in our considered view, having thought that the evidence of PWs 1 to 4 establishes the commission of offence by the accused, has rightly convicted the accused for the offence under Section 302 r/w.Sec.34 IPC.
21. Coming to the contention of the defence counsel that non- disclosure of the incident in the police station immediately after occurrence of the crime, which is close to the scene of offence by the witnesses, though fatal to the prosecution, the same is ignored by the trial Judge, the incident according to the prosecution took place at about 4.15 p.m after the deceased crossed the road nearby Bellary chourastha to purchase fruits. It is to be noted that as per evidence of PW.1, Bellary chourastha was a busy road and a traffic constable was present to control the traffic. MG Brothers Bajaj showroom was on the other side of the 12 CPK,J & JUD,J Crl.A.No.987 of 2015 road nearby Bellary chourastha and the said showroom situated opposite to IV Town Police Station, Kurnool. As per the evidence of PW 1, after the deceased reached the pushing cart, in which bananas were being sold, A1 dealt a blow with a beer bottle on the right side of temporal region and when the deceased fell down in supine position, he was hit by A2 with a boulder twice on his face. On seeing the incident, her brother PW.3 (Krishna) rushed there and raised cries and the people who were nearby also raised cries. The deceased was shifted to the Government Hospital in the same auto in which they were proceeding to Bapujinagar. While the deceased was being taken to the hospital in the auto, his another brother PW.10 to whose house they proceeded prior to incident was contacted and he also came to hospital after some time.
22. From the above evidence of PW 5, it is clear that the deceased was hit by two persons who were already there near the push cart where he (deceased) went to purchase fruits. It is also clear from his evidence that one among two persons beat the deceased with beer bottle on his head and the other person beat him with a boulder twice on his head.
23. PW 5 was totally new to the deceased. He also had no prior acquaintance with A1 and A2. Simply because of his failure to identify the accused in the court, whatever he deposed about the incident in which the deceased was assaulted by two persons with beer bottle and with a boulder, it could not be said that his evidence has no relevancy, PW 5 deposed that the place where the deceased was attacked was 10 feet away from MG Brother Bajaj showroom and the two persons who attacked the deceased were at the electric pole at Bellary chourastha.
13 CPK,J & JUD,J Crl.A.No.987 of 2015
24. The defence counsel raised a contention that there was no report from any of the witnesses in the police station though IV Town Police Station, Kurnool was hardly 100 feet to MG Brothers Bajaj showroom where the alleged incident took place; Till the Inspector of police brought PW 1 to the police station there was no written report from anybody though the offence took place on a busy road where a traffic constable was present to control the traffic.
25. PWs 1 to 4 were with the deceased at the time when the incident took place near Bellary chourastha. On this, there was no much dispute. After the deceased received fatal injuries on the head due to inflicting of blows by A1 with a beer bottle and A2 by a big boulder, PWs 1 to 4 rushed to him and took him to the hospital.
26. When a close relative of the witnesses is suffering from injuries and is about to die, their concern would be to take him to nearer hospital to provide treatment.
27. The information about the crime was received by the Inspector of Police at 4.45 p.m while he was on patrolling duty from the Sub Inspector of police of concerned police station. The inspector of police (PW.11) immediately after getting information about the crime rushed to the spot where the offence took place and came to know that the injured was taken to the hospital, then rushed to the hospital on posting a guard at the scene of offence to preserve it. After he went to Government Hospital, Kurnool, came to know that the deceased died on the way to hospital and that his body was kept in mortuary. He secured the presence of PW 1 and her relatives in the hospital and came to IV town police station and there he recorded the statement of PW 1, the cousin of the 14 CPK,J & JUD,J Crl.A.No.987 of 2015 deceased at 6 p.m, and registered a case in Cr.No.65 of 2012 under Section 302 r/w.Sec.34 IPC and sent copies of express FIRs to all concerned officers, and the original copy to Judicial Magistrate of First Class, Kurnool and took up investigation. The original copy of FIR was marked as Ex.P10 through PW 11.
28. After recording the statements of PW 1 and her relatives PWs 2 to 4, the Inspector of Police-PW 11 left the police station and reached to the scene of offence and examined it in the presence of mediators PWs 7 and 8 and prepared Ex.P11 scene observation panchanama. He seized a big boulder which contained bloodstains and bloodstained broken beer bottle glass pieces, bloodstained earth and the controlled earth in the presence of mediators. M.O.1 was the big boulder. M.O.2 were the broken beer bottle glass pieces, four in number. M.O.3 was the bloodstained earth. M.O.4 was the controlled earth. Rough sketch of scene of offence Ex.P12 was also prepared by him on that day night itself around 9.30 p.m. As it was late at night, on the next day i.e., on 13.03.2012 he conducted inquest over the dead body of the deceased in the presence of blood relatives of the deceased and punch witnesses PW.9 and another.
29. Collection of bloodstained big boulder, bloodstained broken beer bottle glass pieces and bloodstained earth from the scene of offence, situated near Bellary chourastha itself indicates the occurrence of the crime at the said place, as has been asserted by the prosecution. During the course of investigation material objects collected from the scene of offence and the clothes seized from the dead body of the deceased are sent to the forensic laboratory for examination and analysis, and the 15 CPK,J & JUD,J Crl.A.No.987 of 2015 forensic laboratory on examination of them has noticed human blood on them and that the blood group of blood stains is also detected.
30. Merely because of non-lodging of report by the witnesses i.e., PWs 1 to 4 immediately after the occurrence in the police station which is very nearer to the place of offence, their evidence regarding the incident cannot be viewed with suspicion.
31. The accused had sufficient motive to kill the deceased as per the version of the prosecution. As A1 and A2 strongly suspected that the deceased was responsible for the death of the brother of A1, they killed the deceased on seeing him coming near to the pushing cart where they were already present. A2 was the friend of A1. As a matter of fact the deceased, A1 and A2 and the brother of A1 who died in an accident were working as Goundas under the same person. In the report given by PW 1 it was mentioned in clear terms that about one year prior to the death of the deceased, the brother of A1 Devavaram died. A1 and A2 suspected that the deceased killed Devavaram, the brother of A1 and many a time he threatened the deceased. On seeing the deceased coming towards pushing cart to purchase bananas, A1 and A2 who were already there, killed him by hitting on his head with beer bottle and with a big boulder.
32. The defence counsel's contention was that when the deceased had been at pushing cart to purchase fruits, he should have carried money with him, but no money was seized from his shirt or pant pockets. The Inspector of Police who investigated the case stated that he did not find any money from shirt or pant pockets of the deceased and that he had no knowledge as to who filed a complaint regarding death of Devavaram, the brother of A1. Though recovery of money was essential 16 CPK,J & JUD,J Crl.A.No.987 of 2015 for the prosecution to contend that the deceased went to the push cart to purchase fruits in which the incident took place, no money was recovered and that the investigating officer deposed that he did not find money in shirt or pant pockets of the deceased. Non-recovery of money from the shirt or pant pockets of the deceased, in our opinion, is not fatal to the prosecution case.
33. The case established by the prosecution by way of adducing ample evidence, namely, the evidence of PWs 1 to 4, who's evidence is supported by PW 5, an independent witness, and the other incriminating circumstances, such as collection of material objections connected to the crime, in any way, does not make it suspicious simply because of non- recovery of money from shirt or pant pockets of the deceased, as there is every possibility of falling down of money from his hands or from his shirt or pant pockets at the scene when he fell down at the time of assault on him.
34. The evidence of the eyewitnesses in so far as incident of assault on the deceased by the accused appears to be natural, realistic and trustworthy. The variations in the evidence of PW 1 and other witnesses show that while PW 1 and others were proceeding towards Bapujinagar via Bellary Chowrasta, the deceased went on to the other side of the road to purchase fruits and during that time he was assaulted, whereas the evidence of other witnesses as to the effect that while they were waiting for a vehicle after getting down from an auto, the deceased went on to other side of the road to bring fruits and at that time there was attack on him. The said variations in their evidence would not in any way discredit their testimony and rule out their presence with the 17 CPK,J & JUD,J Crl.A.No.987 of 2015 deceased at the material point of time. It is amply clear from the evidence of PWs 1 to 4 that they were very much present at the scene of offence having started with the deceased to go to Bapujinagar where the house of PW 10 was located.
35. Minor variations in the evidence of PWs 1 to 4 which are unconnected with the crime do not in any way diminish the value of the evidence given by them in respect of the crime that took place in their presence.
36. It appears that a plea has been raised on behalf of the appellants that PW 1, the material witness for the prosecution has not stated the purpose of her going to Bapujinagar along with others. It is true that PW.1 in her evidence has not deposed the purpose of her going to the house of PW 10 situated at Bapujinagar. But this omission found in the evidence of PW 1 does not in any way decimate the prosecution case, since the evidence of other witnesses viz., PWs 2 to 4 is clear about purpose of their going to the house of PW 10 where half-saree function of his daughter is being celebrated. PW 10 has deposed in his evidence that on his invitation, when the deceased along with PW s 1 to 4 were coming to his house, the deceased was assaulted and this information was given to him by PW 1 and immediately he rushed to hospital where the deceased was taking for treatment and came to know that he died on the way to hospital.
37. There is tradition of celebrating half-saree function of a girl who attained puberty and for such function the close relations will be invited. Here in the instant case PWs 1 to 4 and the deceased are closely related to PW.10. PW 10 in his deposition deposed that while the accused and 18 CPK,J & JUD,J Crl.A.No.987 of 2015 PWs 1 to 4 were coming to his house on his invitation the incident took place.
38. Coming to the other contention of the appellants that no report about the crime is given in the police station though the jurisdictional police station is close to the place where the offence said to have taken place is concerned, here in this case the deceased who has been attacked by the accused is closely related to PWs 1 to 4. The incident of assault has taken place around 4.15 or 4.30 p.m and report is given in the police station at 6 p.m. When a close relative of the witnesses is attacked in their presence and fatal injuries are inflicted to him, their immediate concern will be to take him to nearest doctor to provide treatment. After the deceased was attacked by the accused with a beer bottle and boulder, the deceased was shifted to Government Hospital, Kurnool by PWs 1 to 4 with a hope that he would survive if provided with treatment immediately.
39. Because of the presence of a traffic constable and a police constable at the site, the information about the crime reached to PW 11- inspector of police and immediately after getting the information of the crime, PW 11 rushed to the spot where the crime took place and there he was informed that the injured was taken to the hospital and after he reached the hospital he got the information about the death of the deceased. In our view, there is no delay in reporting the crime and even if it is assumed that there is delay, the same cannot be attributed to anybody and that the delay if any caused, is explained properly by the prosecution.
40. The role attributed to the accused has been established and proved by the prosecution by leading cogent evidence, especially through 19 CPK,J & JUD,J Crl.A.No.987 of 2015 the evidence of PWs 1 to 4, who are the direct witnesses to the incident. The testimony of the eyewitnesses is fully supported by PW 5. Simply because PW 5 has not identified the accused, it is difficult to hold that his evidence cannot be relied upon. It has been deposed by PW 5 that on 12.03.2012 around 4.15 p.m while he was at MG Brothers Bajaj showroom, Bellary chourasta, he noticed two persons standing near pushing cart and at that time one person came from other side road near pushing cart, then the two persons who were already standing there attacked him, one among them hit the said person with beer bottle on head and another hit him with boulder twice on his head. When people who gathered there raised cries the said two persons ran away.
41. On consideration of entire deposition of PW 5, we conclude that his evidence strengthens the version of PWs 1 to 4 in so far as the attack on the deceased by the accused.
42. After going through the evidence on record, we find that the evidence of PWs 1 to 5 is cogent and consistent and there is no artificiality in the evidence of PWs 1 to 4 as has been concluded by the court below. In our opinion, the court below is justified in relying on the evidence of PWs 1 to 4 who's evidence is supported by PW 5 who is an independent witness.
43. On a close scrutiny of the evidence on record, we are of the considered view that both the accused have attacked the deceased and caused bodily injuries which are sufficient in the ordinary course of nature to cause his death. On analyzing the evidence on record, We have satisfied that the accused in furtherance of common intention committed the act of murder of the deceased and that in our view, the court below 20 CPK,J & JUD,J Crl.A.No.987 of 2015 has rightly found them guilty for the offence under Section 302 r/w.Sec.34 IPC.
44. The learned counsel for the defence raised alternative argument that the accused have not carried any weapon with them, there is no prior meeting of mind and no prior arrangement is made to commit the offence and that the incident has taken place in a spur of moment, therefore, the conviction recorded by the trial court under Section 302 r/w.Sec.34 IPC ma be converted into Sec.304 Part-II IPC. So far as this submission made on behalf of the appellants, We find no material to believe that the incident has taken place in a spur of moment. Neither there was any sudden provocation from the deceased nor that a sudden fight has taken place between the accused and the deceased herein just prior to the crime.
45. The dead body of the deceased was subjected to postmortem examination and that the doctor who examined the dead body in the mortuary noticed three lacerated injuries and all the said injuries were on head. Injuries Nos.2 and 3 were muscle deep and they were not associated with fracture of the skull. Injury No.1 caused on head was bone deep and it was on left frontal region of scalp with fracture over the skull. Some glass pieces were found by the postmortem doctor at the injury site. It was elicited from the cross examination of PW 6- Dr.M.Srinivasa Naik, who conducted autopsy on the dead body of the deceased that injury No.1 would cause defuse sub dural hemorrhage and diffused contusion. Injuries Nos.5, 6 and 7 found by PW 6 over the dead body of the deceased would cause diffused contusion and sub dural hemorrhages on reflection of the scalp. Since number of wounds were 21 CPK,J & JUD,J Crl.A.No.987 of 2015 found over the dead body of the deceased, it cannot be said that the appellants acted in spur of moment without premeditation. The blows given on the head of deceased by A1 with beer bottle and by A2 twice with a big boulder itself would indicate that they had the intention to kill the deceased and that the incident had not occurred in a spur of moment. In view of the above, We do not find any merit in the alternative arguments advanced by the learned counsel for the appellants to extend any benefit by converting offence under Section 302 IPC into under Section 304 Part-I or Part-II IPC.
46. The trial Court has meticulously appreciated the entire material on record in proper perspective and We see no reason to hold that the evidence on record gives rise to a suspicion about the involvement of the accused in the crime and that they deserve the consequential benefit. There are no merits in the appeal and the same is liable to be dismissed.
47. In the result, the Criminal Appeal is dismissed confirming the conviction and sentence recorded against the appellants by the IV Additional District and Sessions Judge, Kurnool, vide judgment dated 20.07.2015, in Sessions Case No.602 of 2012, for the offence under Sections 302 r/w.Sec.34 IPC.
____________________ C.PRAVEEN KUMAR, J ___________________ J.UMA DEVI, J Date: 29.09.2020 Dsr