Andhra HC (Pre-Telangana)
Guruvindapalli Anna Rao And Three Ors. vs State Of Andhra Pradesh, Represented By ... on 6 March, 2003
Equivalent citations: 2003(2)ALD(CRI)60, 2003(1)ALT(CRI)536, 2003CRILJ3253
Author: R.M. Bapat
Bench: Ramesh Madhav Bapat
JUDGMENT R.M. Bapat, J.
1. The appellants herein are accused No. 1 to 4 in Sessions Case No. 900 of 1998, which has been tried by the Second Additional Sessions Judge, Guntur. Initially, eight accused were tried for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. On evidence, A.5 to A.8 were acquitted. Hence, the present appeal by Accused No. 1 to 4.
2. The gravamen of the charge against the accused was that on 4.5.1998 at about 12-00 Noon, Accused No. 1 to 8 formed themselves into an unlawful assembly with the common object of murdering one Puttla Appa Rao (hereinafter referred to as "the deceased"), a resident of Modukur village of Guntur District. In furtherance of their common object, A-1 hacked the deceased on his head with an axe. A-6 stabbed him with a knife on the right side of abdomen. A-2 hacked him on the left side of his ribs with a vegetable cutter. A-4 hacked him with a knife on his back, and all of them stabbed the deceased indiscriminately, and the deceased died on the spot. Thus, it is alleged that all the accused are liable to be punished for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code.
3. The prosecution story can briefly be stated thus: The deceased Puttla Apprao was unmarried. He adopted PW.1 (Medida Sunitha) and she was residing with him. Accused No. 1 is a neighbour of the deceased. Accused No. 1 had purchased vacant site, which was on the western side of the house belonging to Accused No. 6, about five years back from one Annapureddy Ranga Reddy. While taking measurements of the said site, it was noticed that the deceased Appa Rao encroached the land of A-1 by one foot. The deceased did not agree for settlement in spite of intervention of elders. In this regard, differences arose in between the deceased and Accused No. 1 and they quarreled with each other.
It is further alleged that on 3.5.1998, Accused No. 1 hatched a plan with Accused No. 2 to 8 and decided to eliminate the deceased and thus on 4.5.1998 at about 12-00 noon, all the accused forming themselves into an unlawful assembly, arming with deadly weapons like axes and knives attacked the deceased, and thereby committed the murder of the deceased.
It is further alleged by the prosecution that all the accused chased the deceased when he was running away from the scene of offence. Accused No. 1 hacked the deceased with an axe on his head. Accused No. 6 stabbed the deceased with a knife on the right side of his abdomen. Accused No. 2 hacked the deceased with a kitchen knife ('kattipeeta') on the right side of his ribs. Accused No. 4 hacked the deceased with a knife of his back, and the deceased fell down, facing the ground.
It is further alleged that all the accused stabbed the deceased on his back indiscriminately. The incident is alleged to have been noticed by PW.1, P.W.2, P.W.3 and P.W.7. The first information report was given by P.W.1 at Tsundur Police Station. The S.H.O has registered the same as Crime No. 32 of 1998. The S.H.O informed the same to the C.I. of Police, Tsundur. P.W.12, C.I. of Police, Tsundur took up investigation and proceeded to the scene of offence. He prepared observation report Ex.P.6 which was attested by P.W.9 and rough sketch of the scene of offence under Ex.P.13. He found the dead body of the deceased lying on a cot in a thatched shed in front of the house of the deceased with multiple injuries. P.W.12 conducted inquest over the dead body of the deceased in the presence of P.W.9 and others. Ex.P.7 is the inquest report. Thereafter, he recorded the statements of P.Ws.1 to 6. P.Ws.1 and 2 are cited as eyewitnesses. P.W.12 seized M.O-2 two plastic kerosene tins, M.O-8 one polythene empty cement bag, M.O.7 two wooden pieces and M.O.1 knife (kattipeeta) and M.O-4 one pair of chappals, from the scene of offence. The dead body of the deceased was sent to the District Hospital, Tenali and P.W.11 conducted postmortem examination over the dead body of the deceased and issued Ex.P.11 postmortem certificate. P.W.11 opined that the deceased died due to shock and hemorrhage and due to multiple injuries. On 14.5.1998, at about 5.30 A.M, P.W.12 arrested A.1 to A.5 at Tenali Railway Station.
It is further stated by the prosecution that when A.1 to A.5 were in police custody they expressed their willingness to discover the articles. Ex.P-8 is the mediator's report for arrest of A.1 to A.5. In pursuance of the statements made by A.1 to A.5, they led the police officers and witnesses to the backyard of the house belonging to A.3 and M.O.9 (surakatti) was discovered there and it was seized under Ex.P.9, panchnama. Later M.O-1 and M.O-9 were sent for chemical examination. Ex.P.14 is the F.S.L. report. On 26.6.1998, the I Additional Munsif Magistrate, Tenali recorded the statement of P.W.1 under Section 164 Cr.P.C. Thus, on completion of investigation, P.W.12 filed charge sheet.
4. The defence of the accused is one of total denial. It is stated that they have been falsely implicated in the case.
5. In order to prove that the deceased died homicidal death, prosecution examined P.W.12 who conducted the inquest over the dead body of the deceased in the presence of P.W.9. Ex.P.7 is the inquest report.
6. After the inquest was over, the dead body of the deceased was sent to District Hospital, Tenali and P.W.11,Civil Assistant Surgeon, conducted postmortem examination over the dead body of the deceased and issued Ex.P.11,postmortem certificate. The cause of death as opined by her was due to haemorrhage and due to multiple injuries. Thus, we hold that the deceased did die homicidal death.
7. Before proceeding to the other part of the evidence, we would like to put on record that when P.W.11, the doctor, was in the witness-box, the Public Prosecutor who appeared in the Sessions Case before the II Additional Sessions Judge, Guntur, did not take care to get the injuries found on the person of the deceased elicited through the mouth of the said witness. Only by saying that she (PW.11) signed Ex.P.11 postmortem certificate, it is not sufficient evidence to establish the nature of injuries found on the person of the deceased at the time of postmortem examination and to prove all the injuries found on the person of the dead body of the deceased. Therefore, the attention of the Public Prosecutor who conducted the case before the II Additional Sessions, Guntur, is invited that such mistakes should not be committed in future.
8. We would like to put one more discrepancy on record, viz., that while recording evidence, the learned II Additional Sessions Judge had summoned the I Additional Munsif Magistrate, Tenali (PW.10) to prove the statement of P.W.1 recorded by him under Section 164 Cr.P.C. This Court has already ruled if any Magistrate records the statement of a witness under Section 164 Cr.P.C, it is not necessary for the Sessions Judges to summon that Magistrate to prove the contents of the statement recorded by him. This Court has already ruled that when a Magistrate, discharging his official functions as such, records the statement of any witness under Section 164 Cr.P.C, such statement is a 'public document' and it does not require any formal proof. Moreover, it is seen that the learned II Additional Sessions Judge, Guntur, while recording the evidence of the I Additional Munsif Magistrate, Tenali (PW.10), has exhibited the statement of P.W.1 recorded by the Magistrate as Ex.P.10. As a matter of fact, such statement cannot be treated as a substantive piece of evidence. Such statement can be made use of by the prosecution for the purpose of corroboration, or by the defence for contradiction, under Section 145 of the Evidence Act. Therefore, the II Additional Sessions Judge, Guntur, is directed to note the provisions contained in Section 145 of the Evidence Act. Even if a statement is recorded by a Magistrate, it is not a substantive piece of evidence, but it is only a previous statement.
9. Now, we proceed to scrutinize the evidence of other witnesses so as to ascertain whether the prosecution is able to connect the accused to the crime.
10. In order to bring home the guilt of the accused, prosecution relied upon the oral evidence of P.W.1, the documents Exs.P.1 to P.14 and Material Objects 1 to 9.
11. Out of the witnesses examined by the prosecution, P.W.1 is stated to be the adopted daughter of the deceased, who was cited as an eyewitness. But, she did not support the case of the prosecution. P.W.2 is the younger brother of P.W.1. He also turned hostile. P.W.3 was examined only for a limited purpose. His evidence and the evidence of P.W.7 will be discussed later on. P.W.4 is also a hostile witness. P.W.5 happened to be the father of the deceased. He speaks that his deceased son had adopted P.W.1. P.W.6 is the younger brother of the deceased. His evidence is in the form of hearsay and, therefore, it is of no use to connect the accused to the crime. P.W.7 happened to be the cousin (brother) of the deceased. His evidence will be discussed along with the evidence of P.W.3 later on. P.W.8 is the natural father of P.W.1, who has stated that the claim made by the prosecution that P.W.1 was adopted by the deceased, was totally false. He stated that he had not given his daughter P.W.1 in adoption to any one. P.W.9 is the Village Administrative Officer, Modukuru, who attested the panchnamas for seizure of material objects, inquest and arrest of the accused. P.W.10 is the I Additional Munsif Magistrate, Tenali, who recorded the statement of P.W.1 under Section 164 Cr.P.C. P.W.11 is the doctor who has conducted postmortem examination over the dead body of the deceased and P.W.12 is the Investigating Officer.
12. As stated earlier, we now discuss the evidence of P.W.3 and P.W.7. These witnesses have categorically stated that on hearing the cries of P.W.1 they rushed to the house of the deceased and they noticed that A.2 toA.4 were running away from the scene of offence with weapons in their hands. Their evidence is only to the limited extent. They were not the eyewitnesses to the incident.
13. While commenting upon the evidence of P.W.3 and 7, Sri Padmanabha Reddy, learned Senior Counsel appearing for the accused submitted that the fact that the nature of weapons alleged to have been carried by Accused No. 1 to 4 has not been elicited from the mouth of P.W.3 and P.W.7by the Public Prosecutor who conducted the case in the Court of Session. He submitted that even a small stick can be called as a weapon and it is not elicited from P.W.3 and P.W.7 as to whether they were staying nearby the house of the deceased and their evidence only by saying that they had seen A.1 toA.4 carrying deadly weapons and running away from the scene of offence would not complete the chain of events as to hold the accused guilty of the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. We agree with the same.
14. It further requires to be put on record that the learned II Additional Sessions Judge, Guntur, did not frame the charge under Section 148 I.P.C. Firstly, the learned Sessions Judge ought to have framed a charge under Section 148 I.P.C and then under Section 302 read with Section 149 I.P.C. Then only the framing of charge could have been perfect in all respects.
15. Considering the evidence on record, we hold that the prosecution failed to establish the guilt of the Appellants/A.1 toA.4 for the offence under Section 302 IPC. We hold that the order of conviction and sentence recorded against the Appellants/A.1 toA.4 is erroneous, and we, therefore, set aside the conviction of the Appellants/A.1 to A.4 and the sentence of imprisonment for life imposed on each of them by the learned II Additional Sessions Judge, Guntur, for the offence under Section 302 I.P.C, in Sessions Case No. 900 of 1998 on his file. We further direct that the Appellants/A.1 toA.4 shall be set at liberty forthwith if they are not required in any other case. Thus the appeal filed the Appellants/Accused No. 1 to A.4 stands allowed.