Andhra HC (Pre-Telangana)
Dowluri Krishna And Four Others vs The State Of Andhra Pradesh, ... on 17 April, 2013
HON'BLE SRI JUSTICE K.C. BHANU ANDHON'BLE SRI JUSTICE CHALLA KODANDA RAM CRIMINAL APPEAL No.156 OF 2009 dated:17-04-2013 Dowluri Krishna and four others..... APPELLANTS The State of Andhra Pradesh, represented by Public Prosecutor. .....RESPONDENT Counsel for the appellants: Sri K.Suresh Reddy Counsel for the respondent : Public Prosecutor <Gist: >Head Note: ?Cases referred: Nil CRIMINAL APPEAL No.156 OF 2009 JUDGMENT:
- (per Hon'ble Sri Justice K.C.Bhanu) This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") by the appellants/A-2 to A-5 and A-10 is directed against the judgment, dated 23.01.2009, in Sessions Case No.185 of 2007 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Markapur whereunder and whereby, A-1 against whom case is abated and A-2 and A- 10 were found guilty of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short, "I.P.C."), A-3 to A-5 of the offence punishable under Section 302 r/w 149 I.P.C; A-2 to A-5 and A-10 (along with A-1 against whom case is abated) of the offences punishable under Sections 147 and 148 I.P.C.; A-2 to A-5 (along with A-1 against whom case is abated) of the offence punishable under Section 452 I.P.C., and A-2 of the offence punishable under Section 324 I.P.C. and accordingly, sentenced A-2 and A-10 to suffer imprisonment for life and to pay a fine of Rs.500/- each for the offence under Section 302 I.P.C; A-3 to A-5 to suffer life imprisonment and to pay a fine of Rs.500/- each, in default of payment of fine, to suffer rigorous imprisonment for six months for the offence under Section 302 r/w 149 I.P.C.; A-2 to A-5 and A-10 to suffer rigorous imprisonment for one year for the offence under Section 148 I.P.C; A-2 to A-5 to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- each in default, to suffer simple imprisonment for two months for the offence under Section 452 I.P.C., and A-2 to suffer simple imprisonment for one year for the offence under Section 324 I.P.C.
2. Case of the prosecution is as follows:
Cumbum Village, Prakasam District is ridden with factions. All the accused and the material prosecution witnesses belong to the said village. The dispute between them was with regard to running of Lorry Owners' Association Office. A-1 to A-3, A-5 to A-7, A-9, A-10 and A-12 own six tyre lorries. A-4 and A-8 are Cleaners and A-11 is associate of A-1. In the year 1993, there arose a dispute between A-1 and one Parsa Kasaiah, who is brother of P.W.1 doing business by himself. A-1 and three others killed him on 07.11.1993. In retaliation, P.Veerabhadrudu (hereinafter referred to as 'the deceased'), who is the brother of P.W.1, killed three persons by driving lorry over them on 31.08.1994. Later, no incident happened for about ten years. Elders pacified both the parties and saw that no untoward incident would happen.
While so, about three months prior to the incident, which took place on 09.07.2004, the deceased came out of six tyre lorry association office and started ten wheel lorry association office by himself infront of Star Theatre and was doing business. This was resented by A-1. On 09.07.2004, at about 1.20 p.m., A-1 to A-11 formed themselves into an unlawful assembly armed with knives and went in a lorry bearing No.AEG 459, stopped it infront of the office of the deceased. They entered into the office of the deceased where P.Ws.1 to 3 and others were also present and when A-6 and A-7 caught the deceased tightly, A-2 to A-5 stabbed him with knives on the chest, left eyebrow, right shoulder, below chin and left elbow respectively. The body of the deceased was bleeding.
When A-1 raised knife, P.W.2 stretched his hand and received an injury. When A-2 raised knife, P.W.2 intervened and received an injury on left thumb. Then, when P.Ws.1, 3 and another tried to protect the deceased, they were beaten with hands and legs. Meanwhile, the deceased escaped, went out of his office and ran towards Star theatre. All the accused chased and made him to fall on B.T. Road. A-1 picked up a big stone from a stone heap at that place and beat the deceased on the face followed by A-2 and A-10, who picked up the same stone and beat him on the face. When P.W.1 stretched his hands, the stone fell on the hands and caused injuries. When the witnesses tried to rescue the deceased, the accused threatened them with dire consequences. A-12, who was at the scene, also threatened them. After the offence, A-1 to A-11 boarded the same lorry and went away. A-12 also went away.
P.Ws.1 to 3 shifted the deceased to the hospital, but he breathed his last on the way. Leaving the deceased in the hospital, P.Ws.1 to 3 went to the Police Station, which is at a distance of 1/4 KM. to the scene of occurrence, and P.W.1 presented a written report at 2.30 p.m. P.W.9 - Sub Inspector of Police registered a case in Crime No.68 of 2004. He submitted the original First Information Report to the Magistrate at Giddalur, which is at a distance of 34 KMs. with access by bus every hour. The First Information Report reached the Magistrate at 2.50 a.m., i.e., after 12 hours. Ex.P-10 is the original First Information Report. After sending P.Ws.1 and 2 to hospital, he informed the Circle Inspector of Police, Markapur - P.W.12. Later, he came to Cumbum at 3.30 p.m. and took up investigation. He examined P.Ws.1 and 2. He instructed the staff to shift the dead body to mortuary. Then, he went to the scene of occurrence and prepared an observation report - Ex.P-2 at 4.00 p.m. in the presence of P.Ws.6 and 7. He did not find even a single drop of blood in the office. At the second scene, he noticed two pools of blood within a distance of seven feet. He also seized a big stone and a wrist watch of Sonata Company. According to him, the distance between the scene of occurrence and the office is 40 feet. He also noticed a motor cycle near the scene, but he did not enquire as to whom it belongs. He also found number of shops near the scene. He prepared a rough sketch -Ex.P-12. Big stone is marked as M.O.2. When he made enquiries for the other First Information Report, eye witnesses and blood relatives, he came to know that they were not available at their houses.
On the next day, i.e., on 10.07.2004, P.W.12 held inquest over the dead body between 8.00 a.m., and 12.00 noon without mentioning as to who were the direct witnesses. The number of accused swelled into 19. The inquest report is marked as Ex.P-3. According to him, his investigation disclosed that some of the accused figured in the F.I.R., have not participated in the crime. When he resumed investigation on 27.07.2004, he got information about the accused and arrested them in the presence of P.W.7. At the instance of A-2, four knives were recovered from a pit dug by him near a Darga. They were seized under Ex.P-
6. The knives are marked as M.O.7.
After inquest, the dead body was sent to Medical Officer -P.W.8, who conducted autopsy at 1.10 p.m., on 10.07.2004. He noticed 16 injuries, 11 of which are lacerated injuries and 3 are stab injuries. After examining internally, he opined that the death of the deceased was due to shock and hemorrhage. Postmortem certificate is marked as Ex.P-9.
After arrest of the accused and producing them before the Magistrate for remand, P.W.12 was transferred. He was replaced by P.W.10. During the course of his investigation, he received a proceeding, dated 02.02.2006, from the Superintendent of Police based on the report of P.W.12 asking him to delete the names of A-3, A-5, A-9, A-12, A-14, A-17 and A19 shown in the F.I.R. Accordingly, he deleted them from the case. After completion of investigation, he filed the charge sheet on 28.03.2006.
3. The trial Court framed the following charges against the accused:
"Firstly:
That A2 to A12 of you along with A1 who died and case abated on or about 9th day of July, 2004 at about 1.20 p.m., at the lorry association office of the deceased in front of Star Theatre in Cumbum, were members of unlawful assembly and in prosecution of common object of such assembly, viz., in committing the murder of the deceased Parsa Veerabhadrudu S/o.Ramaiah of Cumbum, committed the offence of rioting and thereby committed an offence punishable U/sec.147 of I.P.C. and within my cognizance.
Secondly:
That A2 to A11 of you along with A1 who died and case abated on or about the same day at the same time and at the same place mentioned in charge no.1 were members of unlawful assembly, and did, in prosecution of the common object of such assembly, viz., in committing the murder of the deceased, committed the offence of rioting and at that time were armed with deadly weapons to wit the knives and thereby committed an offence punishable U/sec.148 I.P.C. and within my cognizance.
Thirdly:
That A2 to A5 and A10 of you along with A1 who died and case abated on or about 9th day of July, 2004 at about 1.20 p.m., at the lorry association's office of the deceased in front of Star Theatre, Cumbum formed yourselves into unlawful assembly along with A6 to A9 and A11 in prosecution of your common object to kill the deceased Parsa Veerabhadrudu s/o.Ramaiah of Cumbum, A1 of you intentionally stabbed the deceased with knife on right side chest, A2 of you stabbed the deceased with knife on his left eye brow, A3 of you stabbed the deceased with knife below his right shoulder, A4 of you stabbed the deceased with knife below his chin, and A5 of you stabbed the deceased with knife above his left elbow when A6 and A7 caught the deceased tightly and again while the deceased attempted to run away towards Star theatre, you chased him and caught him on the B.T. Road near the theatre and then A1 of you beat the deceased with big stone on his face; that A10 of you also beat the deceased with same stone on his face due to which the deceased succumbed to injuries on the way to hospital on the same day and thus A2 to A5 and A10 of you did commit the murder of the deceased punishable U/s.302 I.P.C. (r/w Sec.149 IPC) and within my cognizance.
Fourthly:
That A6 to A9, A11 and A12 of you on the same day at the same time and at the same place mentioned in Charge No.3 were members of unlawful assembly along with A1 to A5 and A10 of you and in prosecution of common object of your assembly Viz., in committing the murder of the deceased, A1 to A5 of you stabbed the deceased with knives while A6 and A7 caught the deceased tightly and again A1 and A10 beat the deceased with stone on his face and intentionally caused the death of the deceased, it offence you knew to be likely to be committed in prosecution of the common object of the said assembly and you thereby U/s.149 of IPC guilt of causing the said offence punishable U/sec.302 IPC and within my cognizance.
Fifthly:
That A2 to A11 of you along with A1 who died and case abated on or about the same day and at the same time and the same place mentioned in charge no.1, committed the house trespass by entering into lorry association office of the deceased located in front of Star Theatre, Cumbum having made portion for causing hurt etc., to the deceased and L.W.2 Gangarapu Srinivasulu and others and that you thereby committed an offence punishable U/Sec.452 of IPC and within my cognizance.
Sixthly:
That A2 of you on or about the same day and at the same time and at the same place mentioned in charge No.1 voluntarily caused hurt to L.W.2 Gangarapu Srinivasulu on his left hand by means of knife which is a dangerous weapon and thereby committed an offence punishable U/sec.324 IPC and within my cognizance.
Seventhly:
That A2 of you on or about 9th day of July, 2004 after 1.20 p.m., on B.T.road near Star theatre at Cumbum voluntarily caused hurt to L.W.1 Parsa Subbaiah s/o.Ramaiah on his both hands and thereby committed an offence punishable U/sec.324 IPC and within my cognizance.
Eighthly:
That A3 to A11 of you on 9th day of July, 2004 at 1.20 p.m., in lorry association's office of the deceased beat L.W.1, L.W.3 Ganji Srinivasulu, L.W.4 Kohamardhi Ramana, L.W.5 Parasa Auidhinarayana and LW.6 Parasa Guruswamy with your hands and threatened them with dire consequences when they attempted to come to the rescue of the deceased with intent to cause alarm them, and again on the B.T. road near the theatre A3 to A9 of you, A11 and A12 of you threatened LWs.1 to 10 with dire consequences if they come to the rescue of the deceased and thus you obstructed them from coming of the rescue of the deceased and after committing the offence A1 to A11 of you threatened the LWs. to kill if anybody gives report against them and you A2 to A12 committed criminal intimidation thereby punishable U/sec.506 IPC and within my cognizance.
4. When the above charges were read over and explained to the accused in Telugu, the accused pleaded not guilty and claimed to be tried.
5. To substantiate the charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-14 besides case properties-M.Os.1 to 12.
6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no oral evidence, but marked Exs.D-1 to D-6, which are portions of 161 Cr.P.C. statements of P.Ws.1, 3 and 11.
7. The trial Court, accepting the evidence of P.Ws.1 to 4 and 11, came to conclusion that it is the appellants, who caused the death of the deceased on 09.07.2004 at about 1.20 p.m., in front of Star Theatre, Cumbum. The trial Court also believed the evidence of P.W.8, who conducted the postmortem examination under Ex.P-9 - postmortem examination report, and accordingly, convicted them as stated supra. Challenging the same, the present appeal is filed by A-2 to A-5 and A-10.
8. Learned senior counsel appearing for the appellants contended that there are discrepancies in the testimonies of P.Ws.1 to 4 and 11 with regard to actual assault on the deceased; that they have given a version like a parrot, which shows the interestedness of their evidence; that in the first instance, the police conducted investigation and originally, arrayed 16 accused and later, three more people were impleaded and after conducting investigation, seven persons were deleted from the charge sheet; that in view of these circumstances, it is not safe to rely upon ocular testimony; that the evidence of the witnesses would go to show that there is a false implication of some of the accused; that the circumstances indicate that no incident had taken place in the office room of the deceased and the incident, as spoken to by the witnesses in the office room of the deceased, appears to be improbable because that room would not accommodate the physical presence of two or three persons and the allegation that seven persons entered into the room while seven persons were already in the room makes improbable to believe the version of eye witnesses; that the presence of other accused except A-1, A-2 and A-10 has not been spoken to by any of the witnesses at the second instance i.e., infront of Star theatre; that the names of A-11 and A-12 have not been mentioned in the First Information Report; that A-1 to A-3 did not go to the second place of occurrence; that therefore, in the absence of sharing the common object, at best, the accused can be convicted basing on the individual overt acts; that there was a delay in sending the F.I.R. to the Court; that it is highly improbable to believe the story of the prosecution that three assailants used the same stone for causing injuries to the deceased and therefore, he prays to set aside the impugned judgment and acquit the accused.
9. On the other hand, the learned Additional Public Prosecutor contended that P.Ws.1 and 2 are the injured witnesses, which shows their presence at the time of the occurrence, and it is not the case of the accused that P.Ws.1 and 2 sustained those injuries at a different place or that they are shown to be self inflicted; that P.Ws.4 and 11 are totally independent witnesses and they have no animosity or grouse against the accused so as to implicate them falsely; that there was strong rivalry existing between the accused and the deceased and in view of that animosity, all the accused formed themselves into an unlawful assembly and came to the office of the deceased in a lorry and in the first instance, the deceased was attacked in his office room and when the deceased escaped from the office room, he was chased by the accused and infront of Star Theatre, he fell down and there, some of the accused caused injuries as a result, he died on the spot; that immediately after the incident, P.W.1, who is none other than the brother of the deceased, lodged the First Information Report and immediately thereafter, the investigation started; that ocular testimony is completely in corroboration with the medical evidence; that the evidence of P.W.8 would go to show that P.Ws.1 and 2 sustained injuries during the course of same transaction in which the deceased sustained injuries and after an elaborate consideration of the evidence on record, the trial Court rightly found them guilty and that judgment needs no interference by this Court and hence, prays to dismiss the appeal.
10. The entire case rests upon the evidence of P.Ws.1 to 4 and 11. P.W.1 is the brother of the deceased. P.W.2 is closely related as his niece was given in marriage to the nephew of the deceased. P.W.3 is the maternal uncle of the deceased. The incident had taken place on 09.07.2004 at 1.20 p.m. at lorry broker's office of the deceased infront of Star Theatre. The deceased, at that point of time, was sitting in the office and it is the case of the prosecution that all the accused came in a lorry armed with deadly weapons and some of them entered into the office and caused injuries to the deceased; that the deceased escaped from the clutches of the accused, came out of the office and ran towards the Star Theatre and infront of the Star theatre, he fell down. At that point of time, some of the accused caused injuries to him, as a result he died on the spot. Within 40 minutes thereafter, P.W.1 rushed to the police station. As the Station House Officer instructed him to draft a written complaint, he drafted a written complaint. P.W.9, who received Ex.P-1 from P.W.1 at 2.00 P.M., on 09.07.2004, registered a case. He informed about the registration of the case to P.W.12, who is the Investigating Officer. The Investigating Officer rushed to the scene of offence and secured the presence of P.Ws.6 and 7, observed the scene of occurrence at 4.00 p.m., and seized the blood stained knives, blood stained earth and other incriminating blood stained articles. On the next day morning, inquest was conducted from 8.00 a.m., to 12.00 noon in the presence of P.Ws.6, 7 and others. The inquest mediators opined that the deceased lost his breath due to severe bleeding injuries. After inquest, the dead body was subjected to postmortem examination by P.W.8, who found the following external injuries:
1. Lacerated injury of 4 cm x 3 cm x 2 cm on right eyebrow
2. Lacerated injury of 3 cm x 2 cm, x 2 cm above the injury no.1.
3. Lacerated injury of 4 cm x 2 cm x 1 cm, 4 cm above the injury no.2 (frontal region)
4. Lacerated injury of 2 cm x 1 cm x 1 cm, 3 cm in front of the trigone of the left ear.
5. Lacerated injury of 2 cm x 1 cm x 1 cm, on the right canthus of the eye
6. Lacerated injury of 4 cm x 3 cm x 1 cm, on the occiput
7. Stab injury of 6 cm x 3 cm x into the thoracic cavity, 2 cm on the right side of the sternum
8. Stab injury of 3 cm x 2 cm x into the thoracic cavity, 2 cm on the left side of the sternum
9. Stab injury of 3 cm x 2 cm x into the thoracic cavity, 3 cm below the left nipple.
10. Abrasion of 6 cm x 3 cm on the right back
11. Lacerated injury 4 cm x 2 cm x 3 cm, 6 cm below the acromion process of the right shoulder
12. Lacerated injury of 6 cm x 2 cm x 2 cm, 3 cm below the left elbow on the posterior aspect
13. Dislocation of right shoulder
14. Lacerated injury of 2 cm x 1 cm x 1 cm at the base of the left thumb
15. Lacerated injury of 2 cm x 1 cm bone deep on the left side of the chin.
16. Cephalic-haematoma of 8cm x 6cm in the occipital region with fracture of occipital bone.
He also found the following internal injuries:
1. Fracture of frontal bone on the left side with brain matter protruding out into the subcutanium
2. Fracture of left mandible the angle
3. Loosing of the upper two incisors
4. Loosing of the left lower molars
5. Fracture of maxilla below the left eye
6. Fracture of 5th rib, 3cm below the left nipple corresponding to the injury no.9 of external injuries.
7. Sternum is cut at the 2nd intercostal space corresponding to the injury no.8 of external injuries.
8. Lacerated injury of 2cm x 1cm x 2cm in the upper boarder of the left lower lobe of lung
9. 1 liter of blood in the left thoracic cavity
10. Lacerated injury of 2cm x 1cm x 2cm in the upper boarder of right lower lobe of lung
11. 1/2 liter of blood in the right thoracic cavity
12. Blood clots present in the chambers of the heart.
According to him, the death of the deceased has taken place about 26 to 28 hours prior to his examination. He opined that the deceased died as a result of shock and hemorrhage due to the injury to the vital organs, brain and lungs. He issued Ex.P-9 Post Mortem Certificate. Nothing has been elicited in the cross- examination of P.W.8 and the recitals in Ex.P-9. So, from the medical evidence, it leaves no room to doubt that the deceased met with a homicidal death. Even the accused are not seriously disputing about the homicidal nature of the death of the deceased.
11. Now, it has to be seen whether the accused are the assailants of the deceased or not?
12. It is not in dispute that there were disputes between the accused and the deceased with regard to running of Association of Lorry Owners. It is elicited in the cross examination of P.W.1 that the old lorry owners' association was formed by the owners of six tyres lorries and P.W.1 was a member in the said association. The association used to collect brokerage charges at the rate of 4% to be payable to the brokers and Rs.50/- would be additionally collected for the purpose of association. By the date of death of the deceased, the lorry consisting of 10 tyres was with the old association and all other lorries of ten tyres were with the association of the deceased. It is also not in dispute that no lorry would be permitted to load in the surroundings of Cumbum Town without being any member of Lorry Owners' Association or without payment of brokerage charges to the office. In the year 1994, the elder brother of P.W.1 by name Kasaiah was the Vice President of the Lorry Owners' Association and A-1 was the Treasurer. There were disputes between A-1 and Kasaiah. In the year 1997, the said Kasaiah was allegedly murdered by A-1 and others. The deceased bore grudge against A-1 and others due to the murder of Kasaiah. Subsequently, they were united. One Thota Sreenu, Nagula Sreenu and Mandla Venkateswarlu, who were the accused in the murder case of Kasaiah died in an accident. The followers of A-1 filed a case against the deceased, P.W.1 and others alleging that they have murdered those three persons by dashing with a lorry. Thota Sreenu is the brother of A-1. Nagula Sreenu is the father of A-11. The elders in the village compromised the matter between them, but in the year 2003, at about 7.30 or 8.00 p.m., while the deceased and P.W.1 were coming to their house from Kandulapuram Center, A-4, A-11 and two others attempted to kill them with knives. Then, they filed a criminal case against them. Later, the deceased purchased ten tyres lorry. The then President and Treasurer of the Lorry Owners' Association refused to include owner of 10 tyres lorry into their association. Thereupon, the deceased got separated from the association and opened a new Lorry Association Office infront of Star Cinema Hall near Cumbum. The deceased used to supply the lorries at lesser amounts with regard to the freight and hire charges. Due to that, the business of the old Lorry Owners' Association was badly affected. For that reason, it is the case of the prosecution that the accused conspired together and murdered the deceased.
13. In evaluating the evidence of the eye witnesses, three important considerations are (1) in the circumstances of the case, whether it is probable that the eye witnesses are present at the time of the incident, (2) whether they could be in a position to identify the assailants of the deceased and (3) whether there is anything inherently improbable in their evidence or not. P.W.1 is doing business in fertilizers and also lorry business. The fertilizers shop of P.W.1 was located at a distance of 200 to 250 feet from the Lorry Owners' Association Office. Admittedly, if a person is present in the fertilizers' shop, he cannot be in a position to witness what was happening near the Lorry Owners' Association Office of deceased. According to him, he is an ostensible owner of the lorry. The ostensible owners are also the members of the Lorry Owners' Association. One month prior to the death of the deceased, he sold away the lorry, which was registered in the name of Kasaiah. The reason given by this witness would go to show that he along with P.Ws.2 and 3 and deceased were talking with each other in the Lorry Owners' Association Office on 09.07.2004 at about 1.00 p.m. It is at that time, the incident had taken place. The evidence of P.Ws.1 to 3 is very clear that at about 1.15 p.m., lorry bearing No.AEG 459 came from Bestavaripeta side and stopped infront of their office. At that time, they observed A-2 getting down from the lorry cabin and other accused i.e., A-1, and A-3 to A-11 came to their office and seven or eight persons trespassed into the office room. A-6 and A-7 came to the deceased and caught hold of his hands. A-1 had taken a knife and stabbed on the right chest of the deceased, A-2 stabbed the deceased with a knife on his eyebrow, A-4 stabbed the deceased with a knife below his chin, A-5 stabbed the deceased with a knife on his left elbow, A-3 stabbed the deceased with a knife on his right shoulder. When A-1 attempted to stab the deceased again, P.W.2 intervened as a result, he received injuries on his right palm. When again A-2 attempted to stab the deceased with a knife, P.W.2 intervened and received injury on his left thumb. While they were pushing each other, A-8 to A-11 threatened P.Ws.1 to 3 and others present there by showing the knives. A-8 to A-11 kicked P.Ws.1 and 2 with legs. In the meanwhile, the deceased escaped from the clutches of the accused and started running and when the deceased covered 35 to 40 feet, he was made to fall on the ground by putting the legs to cause obstruction. There was a stones heap nearby place where the deceased fell down and unheeding their requests, A-1 took a big stone and thrown it on the face of the deceased, A-2 took the same stone and was about to throw it on the deceased, but P.W.1 stretched his both hands towards the stone as a result, he sustained injuries to his hands and wrists. Then, A-10 took the same stone and thrown on the face of the deceased. While the incident was going on, the deceased was suffering with convulsions. After the convulsions were stopped, A-1 to A-11 left the scene of offence by going in the lorry in which they came. Immediately, P.Ws.1 to 4 and some others shifted the deceased to the Government Hospital. Later, P.W.1 went to the Police Station and lodged Ex.P-1-complaint. A detailed complaint has been given at about 2.00 p.m. on the same day.
14. One of the contentions raised by the learned counsel for the appellants is that Ex.P-1 was brought into existence after due deliberations just before sending it to the Court. It is not in dispute before this Court that Ex.P-1 reached the Court at about 2.50 a.m., on 10.07.2004 i.e., nearly 12 hours after the incident. The police station is located at a distance of 34 kms. from the scene of occurrence. It is not in dispute that the police station is situated at a distance of 1/4 km. from the scene of occurrence. As seen from the detailed report given by P.W.1, it is clear that 16 assailants participated in the commission of the offence. The names of P.Ws.4 and 11 have not been stated in the F.I.R. No specific overt acts were attributed, but the participation of some of the accused is found to be false, as the Investigating Officer, after recording the statements of the witnesses, only found that A-1 to A-12 participated in the commission of the offence. So, the names of seven persons have been deleted from the charge sheet. The case against A-1 was abated, as he died during the trial of the case. There cannot be any dispute that F.I.R in a criminal case is a valuable piece of evidence, which shows the earliest version of the incident. Law is well settled that the F.I.R. can only be used to corroborate the evidence of informant when the informant comes to the witness box in the manner as provided under Section 157 of the Indian Evidence Act, 1872 (for short, 'the Act') or for contradicting the maker under Section 145 of the Act or impeaching the credit of the witness under Section 155 of the Act. It is not a substantive piece of evidence. The statement given by the witness in the Court on oath is a substantive evidence. The main fabric of the prosecution case, as stated by P.W.1, is completely more or less in corroboration with his evidence. Minor discrepancies or omissions are bound to occur even in a case of truthful witness. Those minor contradictions or omissions are of trivial in nature. They will not affect the main fabric of the prosecution case. The main case of the prosecution is that when the deceased and P.Ws.1 to 3 were sitting in the office room of the deceased, the present assailants along with some others entered into the room and some of the accused stabbed the deceased. When the deceased escaped from their clutches and ran towards Star Theatre, he was attacked and caused the death. Furthermore, P.W.1 is the injured witness. P.W.8 is the Doctor, who examined him on the same day at 5.40 p.m., found the following injuries:
i) Three scratches 2 cms, 1 cm and 1/2 cm each one below the other on the right wrist
ii) Peddish black contusion of 4 cms x 3 cms on the left wrist with local tenderness.
Those injuries could have been caused about 4 to 5 hours prior to his examination and such injuries may be possible due to the sharp objects like M.Os.4 and 7- knives. He issued Ex.P-8 - Wound Certificate. It is not the case of the accused that P.W.1 sustained those injuries in a different place at the hands of different persons not during the same transaction where the deceased sustained injuries. So, in those circumstances, the presence of P.W.1 at the scene of occurrence is established beyond all reasonable doubt. Since the deceased was his own brother, there is every possibility for him to go to the office of the deceased for some purpose. As the incident had taken place in a broad day light, there is a scope for P.W.1 to identify the assailants of the deceased. Simply because he stated in the F.I.R. that 16 persons participated in the commission of the offence and subsequently, during the course of recording the evidence, he stated that there was a presence and participation of A-1 to A-11 only, the same cannot be a ground to disbelieve his evidence. The latin maxim "falsus in uno amd falsus in omnibus" (false in one thing and false in everything) has no application to the present Indian Law of Criminal Jurisprudence. Such part of the statement, which inspires confidence, can be taken into consideration and such part of his testimony, which is false or unbelievable, can be rejected. In other words, the Court is entitled to disengage truth from the falsehood and that part of the testimony, which inspires confidence, can be accepted. When the truth and falsehood are inexplicably mixed up and there is no possibility to disengage the truth from the falsehood, the only course left open to the Court is to discard the entire testimony. In view of the fact that P.W.1 made a version in the F.I.R. about the participation of 16 persons and in view of the fact that he is closely related to the deceased, his evidence cannot be put in the category of wholly reliable. Considering the fact that he is an injured witness and those injuries were shown to have been caused during the course of same transaction, his presence at the scene of occurrence cannot be doubted. In such a case, his evidence requires corroboration because he is neither wholly reliable nor wholly unreliable.
15. P.W.2 is no other than the sister's son of the deceased. He narrated the incident in the same way as spoken to by P.W.1. He is also an injured witness. According to the Doctor, he was examined at about 5.30 p.m., on the same day and found the following injuries:
1. Multiple cut injuries of varing sizes from 2 cm to 1 cm in a single line on right palm (across the palm)
2. Cut injury of 2 cm x 1/2 cm on the little finger (base)of right hand
3. Cut injury of 2 cm x 1/2 cm 1/2 cm at the base of right thumb.
All the above injuries are simple in nature. He issued Ex.P-7-wound certificate. It is not suggested to P.W.2 that those injuries were sustained by him not at the hands of the accused but in a different manner. Immediately after the incident, he was examined. His niece was also given in marriage to the nephew of the deceased. His name was specifically mentioned as one of the eye witnesses to the occurrence in the First Information Report, but his evidence would go to show that except A-12, all the accused came to the office of the deceased and attacked him in the first instance and thereafter, when deceased ran away from the first scene of occurrence, he was attacked by A-1, A-2 and A-10 at the second scene of offence. Therefore, his evidence is completely in corroboration with the evidence of P.W.1. Except giving a suggestion that he was giving false evidence, nothing has been elicited to discredit the testimony of this witness. Though it was suggested that he did not witness the incident and he was cited as a witness, as he was related to the deceased, he denied the same.
16. P.W.3 is doing business in lorry. According to him, the lorry was registered in the name of his elder brother. On the date of the incident, he was present in the lorry brokers office of the deceased. A-1 to A-11 came on a lorry and attacked the deceased in the first instance in the office and thereafter, near the theatre. So, his evidence with regard to sequence of events leading to the death of deceased is also almost similar to the evidence of P.Ws.1 and 2. The presence of this witness is established. At the earliest point of time, he was examined on the same day by the police and also during the course of inquest. No doubt, the deceased was his maternal uncle, but at the same time, the presence of P.W.3 at the relevant point of time of incident has been established. Mere relationship with the deceased is no ground to jettison their testimonies, if it is otherwise found to be worthy of confidence and trustworthy. In the normal course of events, a close relative would be the last person to relieve the real culprits and implicate a false person. The evidence of related witnesses should be subjected to very careful scrutiny with extreme care and caution and if on such scrutiny, the testimony is found to be intrinsically reliable, then that evidence can be acted upon.
17. P.W.4 speaks about the second scene of occurrence, which is infront of Star theatre. On the date of the incident, he along with other witnesses, went to Star Cinema Theatre to witness a picture and then, proceeded to the canteen to have a cup of tea. A galata had taken place in the office room of the deceased. Admittedly, P.W.4 did not witness the incident that took place in the office room of the deceased. While the deceased was running towards cinema theatre in a hurried manner, A-1, A-2 and A-10 chased the deceased and he was made to fall down on the road margin by A-2. A-1 threw a stone on the face of the deceased. When A-2 attempted to throw a stone on the deceased, P.W.1 caught hold of that stone and in that process, P.W.1 received injuries. Later, A-10 threw a stone on the deceased. While A-2 was driving the lorry, some persons went away in the lorry. He identified A-2 and A-10 in the Court. A-3 to A-11 and A-1 were the persons, who went away in the lorry from the scene of offence. The house of P.W.4 is located at a distance of 1/2 km. from the cinema theatre. He stated that by standing infront of the cinema hall canteen within the compound, he witnessed the incident. He witnessed the incident from a distance of 50 to 60 feet. As seen from the rough sketch, the cinema hall is situated at a distance of 50 feet from the second scene of occurrence. Therefore, there is scope or possibility for P.W.4 to witness the incident. He is not at all related to the deceased. Similarly, there is no animosity or grouse for this witness against the accused so as to implicate them falsely in a case of this nature. So, in the absence of any animosity or grouse, P.W.4 is an independent witness whose presence at the time of the incident appears to be probable.
18. Similarly, P.W.11 stated that on the date of incident, he went to the office of the deceased; that at about 1.00 p.m., a lorry came from Besthavaripeta side and A-2 was driving the lorry; that except A-12, all other accused came in the lorry; that all the persons rushed towards the office; that out of them, 7 or 8 persons entered into the office room of the deceased; that A-6 and A-7 caught hold of the deceased, then A-1 stabbed the deceased on his right chest with knife; that A-2 stabbed the deceased on his right eyebrow with knife; that A-3 stabbed the deceased below the shoulder with knife; that A-5 stabbed the deceased with knife on his left elbow and A-4 stabbed the deceased below the chin with a knife. He deposed in the similar way as deposed by P.Ws.1 and 2. It is suggested to him that he was a planted witness, but the same was denied. Similarly, he is not related to the deceased. He has no grouse or animosity against the accused. Some omissions are elicited in the evidence of this witness with regard to the presence of P.Ws.1 to 3. That aspect of the case has not been stated to the police and contradiction was elicited to the effect that all the accused entered into the lorry office. These omissions and contradictions are trivial in nature, which will not affect the main core of the prosecution case. Similarly, he did not state before the police that A-8 to A-11 threatened them not to come to the rescue of the deceased. The presence of P.W.11 is established by the prosecution and he is totally an independent witness. In the absence of any ill-feelings between himself and the accused, his presence at the time of the incident is found to be probable and if such is the case, he could be in a position to witness the incident. Therefore, from the evidence of this witness, it is clear that A-1 to A-5 and A-10 actually participated in the commission of offence. No doubt, P.Ws.2 to 4 and 11 did not attribute any specific overt acts against these accused at the earliest point of time. For invoking Section 149 I.P.C., it must be shown that all the accused shared the common object with other accused so as to commit an offence or any of the offences as mentioned in Section 141 I.P.C.
19. In view of the fact that common object is locked up in the minds of the accused, it is difficult for the prosecution to establish the same. Some of the important factors that have to be taken into consideration are the manner in which the accused came to the scene of occurrence, whether they were armed with any weapons, whether anyone of the accused uttered anything so as to eliminate the deceased, whether in the absence of any intervening circumstances, the accused caused any injuries to the deceased and whether they threatened the witnesses, who were present there, and the manner in which they left the scene of occurrence. Except the eye witnesses stating the presence of A-6 to A-9, A-11 and A-12, there is no other evidence to show that they have really shared the common object with other accused so as to eliminate the deceased. They have absolutely no grouse against the accused except stating that A-6 and A-10 are the sons of two brothers and A-4 and A-8 are the lorry cleaners, A-11 is the coolie and remaining accused are the lorry owners. If really A-6 to A-9, A-11 and A-12 shared the common object, certainly, they would have done some overt acts. In the absence of any intervening circumstances, mere presence of those accused cannot by itself be a ground to infer that they shared the common object with the other accused. Perhaps, that is the reason why the learned Sessions Judge acquitted those accused as the prosecution failed to establish the sharing of common object with the other accused. Similarly, there were no circumstances to indicate or to infer that they shared the common object with other accused so as to eliminate the deceased, but the other accused i.e., A-1 to A-5 and A-10 armed with weapons, caused injuries to the deceased. The manner in which A-1 to A-5 and A-10 came to the scene of occurrence, the manner of attacking the deceased in the first instance in the office and later, chasing the deceased and attacking him at the opposite to the cinema theatre by arming with deadly weapons and leaving the place in the same lorry shows that they knowingly, went to the scene of occurrence with an intention to commit the murder of the deceased.
20. One of the contentions raised by the learned counsel for the appellants is that the evidence of P.Ws.1 to 3 is a parrot like version and therefore, it is not possible for the witnesses to reproduce the same after lapse of 4 or 5 years. In view of the fact that the incident had taken place in the broad day light and they could be in a position to identify the assailants, the incident must have been imprinted in their minds so as to recollect the same at a later point of time and to narrate the same. Therefore, once their presence is established, on the ground of giving a parrot like version, the entire testimony cannot be discarded. It is also one of the contentions raised by the learned counsel for the appellants that there was abnormal delay in sending the report to the Court. Admittedly, there was a delay of 12 hours in sending the report. According to the learned counsel for the appellants, the delay occurred with a view to fabricate a false case against as many as accused persons possible. It is suggested to P.W.9 that Ex.P-1- report was prepared before 10 or 11 p.m., on 09.07.2004, but the same is denied. The distance between Cumbum Police Station and Judicial Magistrate of First Class, Giddalur is about 34 Kms. It is not in dispute that for every one hour, the buses would go to Cumbum towards Giddalur. No doubt, P.W.9 has not explained for the delay of nine hours in sending the report. Under Section 157 Cr.P.C., a report has to be sent forthwith to the concerned Magistrate, but if unexplained delay is there, on that ground alone, the entire prosecution case has to be discarded. The delay in sending the report may be one of the grounds for taking into consideration along with other grounds, if any, to suspect the case of the prosecution, but in this case, there are no other suspicious circumstances appearing in the prosecution evidence so as to doubt the case. P.W.12 arrested the accused on 27.7.2004. In pursuance of the confessional statement made by A- 2, four knives were seized. Then, the knives were sent to R.F.S.L. They contained "B" blood group, which is the same blood group of the deceased. Therefore, from the recitals in Ex.P-14, it is clear that M.O.7, which are the four knives, must have been used in the commission of offence because it contained "B" group of blood. The evidence of P.W.9 is completely in corroboration with the evidence of P.W.7, who was the mediator present at the time of arrest, with regard to the arrest of the accused and recovery of the knives. Ex.P-6 is the seizure report seizing M.O.7. Therefore, considering all these aspects, the trial Court rightly found them guilty and we do not find any perverse findings. The impugned judgment is based upon proper appreciation of evidence on record. Hence, there are no grounds to interfere with the impugned judgment and the appeal is devoid of merit and is liable to be dismissed.
21. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 23.01.2009, in Sessions Case No.185 of 2007 on the file of the VI Additional District and Sessions Judge, (Fast Track Court), Markapur.
22. Miscellaneous petitions pending, if any, in this Criminal Appeal shall stand closed.
______________________ JUSTICE K.C.BHANU __________________________ JUSTICE CHALLA KODANDA RAM 17th April, 2013