Telangana High Court
Mustipalli Rajeshwar Reddy vs The State Of A.P. Rep., By Its Pp on 4 August, 2022
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CRL.A.NO.1415 OF 2011
JUDGMENT
A‐1 was charged for the offence punishable under Section 302 IPC for causing the death of one Kadavath Seetharam Naik s/o Hemla Naik, and all the accused A‐1 to A‐4 were charged for the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Act').
2. Vide judgment dated 09.12.2011, the court of Special Sessions Judge for Trial of cases under S.Cs. and S.Ts. (P.O.A.) Act - cum - VII Additional District and Sessions Judge, Mahabubnagar, in S.C.No.94 of 2008, found A‐1 not guilty under Section 302 IPC, but however found him guilty for the offence under Section 304 Part II of IPC, and he was convicted and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/‐, and in default of payment of fine, to suffer simple imprisonment for one month, and he was given the benefit of set‐off under Section 428 of Cr.P.C.
3. The trial court found A‐1 to A‐4 not guilty for the offence punishable under Section 3(1)(x) of the Act and accordingly acquitted them.
4. Assailing the judgment of the trial court is finding A‐1 guilty under Section 304‐II IPC and in convicting and sentencing him, the present appeal is filed.
5. The case of the prosecution is that the de facto complainant, who is the deceased, belongs to lambada, a Schedule Tribe community. The deceased was practicing as Registered Medical Practitioner. He purchased a house plot adjacent to the house of the accused. That A‐2 started renovating his old house and was raising some rooms.
6. On 17.07.2008 at about 2.30 p.m., while A‐1 was getting the house constructed with masons viz., Ramulu (P.W.2), Gopal (L.W.3), the deceased went there and asked the 2 accused to leave some space in between the house of the accused and his house plot, and asked A‐1 to stop the construction work. In the meanwhile A‐2 to A‐4 also joined and abused the deceased in filthy language touching the name of his caste.
7. It is alleged that A‐1 took out a brick piece and beat on left side of the head causing bleeding injury. The accused again picked up a wooden log and beat on the head of the deceased causing severe head injuries, due to which the deceased fell unconscious.
8. That deceased was immediately shifted to Government Hospital, Mahabubnagar, from there, to SVS Hospital. That the deceased succumbed to injuries, while undergoing treatment on 31.07.2008.
9. That A‐1 was charged for the offence under Section 302 IPC, and all the accused A‐1 to A‐4 were charged for the offence under Section 3(1)(x) of the Act.
10. Learned Magistrate has taken the case on file as PRC.No.88 of 2008 and after complying with the procedure under Section 207 Cr.P.C., committed the case to the Special Court constituted for trail of cases under the provisions of the Act.
11. The trial court has taken the case on file as S.C.No.94 of 2008, and issued summons, and on appearance of the accused, and on hearing both sides and considering the material on record, framed charge under Section 302 IPC and under Section 3(2)(v) of the Act against A‐1 and under Section 3(1)(x) of the Act against A‐1 to A‐4. The said charges have been read over and explained to them, and they pleaded not guilty.
12. To prove the case of the prosecution P.Ws.1 to 14 were examined and Exs.P‐1 to P‐21 were marked, and M.O.1 was marked.
13. After closure of the evidence of the prosecution, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material brought on record, and they denied the same, and claimed to be tried.
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14. As already noted above, the trial court found A‐1 guilty for the offence under Section 304‐II IPC and convicted him and sentenced him, as noted above. Hence the appeal by A‐1.
15. Learned counsel appearing for the appellant / A‐1 submits that trial court has not properly appreciated the evidence on record, to find the accused guilty. He submitted that except P.W.1, all the material witnesses turned hostile. Learned counsel submits that there is no material on record to show that P.W.1 was an eye witness to the incident, but the trial court has heavily relied on her evidence to find the accused guilty.
16. He submits that as per the case of the prosecution deceased received only two injuries, but in the postmortem examination, there are eleven external injuries, which are not explained by the prosecution. He submits that the deceased died fourteen days after the incident, and the doctor who treated the deceased, was not examined, and further on M.O.1, stick, with which A‐1 is alleged to have hit the deceased, there are no blood stains.
17. Therefore, the learned counsel for the appellants submits that as the trial court without considering all the aspects and by relying on the evidence of P.W.1 convicted the accused, prayed to set aside the impugned judgment and to acquit A‐1.
18. Learned Public Prosecutor supporting the impugned judgment, sought to dismiss the appeal and to confirm the conviction.
19. In view of the above rival contentions and the material on record, the issues that arises for consideration are (1) whether the prosecution is able to bring home the guilty of the accused beyond all reasonable doubt, and (2) whether the impugned judgment warrants interference?
20. P.W.1 is the wife of the deceased. She deposed that they are owning a house plot in Malkapur village; that adjacent to their plot accused were also having house plot; that 4 they commenced construction of house; at that time, her husband requested the accused to leave some space for egress and ingress purpose; that she was also present there; but the accused abused her husband as "lambada lanjakodukulara" again and again, for asking the space; that when her husband raised to stop the work, A‐1 hit her husband with brick on the left side of the head; that A‐1 again beat her husband with stick on his head, due to which her husband fell down; that when she tried to rescue her husband, A‐1 and A‐2 pushed her aside; that in the meanwhile Gopal and Ramulu (L.Ws.2 and 3) came there and rescued her husband; that they called ambulance and shifted her husband to Mahabubnagar Hospital; that her husband sustained injuries on the left side of head; that police arrived at the hospital and that she informed about the incident, and they recorded her statement; that she affixed her thumb impression on Ex.P‐1; that her husband succumbed to injuries while undergoing treatment after 14 days and that her husband died due to the injuries caused by A‐1; that police recorded her statement and that she can identify the brick piece and stick M.O.1 and stick and; that M.O.1 is the wooden log used by A‐1.
21. She was cross‐examined at length, but nothing contradictory could be elicited by the defence.
22. P.W.2 is alleged to be the eye witness to the incident. He deposed that he knew P.W.1 and the accused and the deceased; that the husband of P.W.1 died about three years back; that he did not know as to how the deceased died; that about three years back, he went to attend coolie work in the construction of house of A‐2; that at that time, husband of P.W.1 came there, quarreled and asked them to stop the work and tried to remove the construction and thrown the stones, due to which he fell down along with stones and he sustained injuries and; that the police examined him.
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23. Learned Special Public Prosecutor, with the permission of the court sought to declare him as hostile, and cross‐examined him. But nothing useful to the case of the prosecution could be elicited.
24. P.W.3 is also stated to be another eye witness. He deposed that he is a resident of Malkapur village and live by Coolie work; that he knew P.Ws.1 and 2 and the accused; that that the husband of P.W.1 was working as RMP doctor; that about three years, he went to coolie work to attend for the construction of house; that the husband of P.W.1 came there and asked them to stop the work; that A‐1 alone was present, as such, they stopped the work and went home; that thereafter he does not know what happened and that police have not examined him.
25. He was also sought to be declared as hostile, and the learned Public Prosecutor cross‐examined him, and nothing useful to the case of the prosecution could be elicited.
26. P.W.4 is the mother of the deceased. She deposed in line with P.W.1. Here it is be notice that P.W.1 who filed Ex.P‐1 report, did not state her mother‐in‐law also witnessed the incident.
27. P.W.5 is stated to be the resident of Malkapur village, and she is alleged to have witnessed the incident while she was going on some work and her statement under Section 161 Cr.P.C. was recorded by the police. But she did not support the case of the prosecution, and she was declared hostile.
28. P.Ws.6 and 7 are stated to be mediators to the scene of offence panchanam. They turned hostile.
29. P.W.8 is the mediator for the inquest conducted by Investigating Officer.
30. P.Ws.9 and 10 are the panch witnesses (mediators) of confession and recovery panchanama. They turned hostile.
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31. P.W.11 is the Tahsildar, who is stated to have issued caste certificates to the deceased and the accused.
32. P.W.12 is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P‐13 postmortem certificate. He deposed that he held autopsy over the dead body and found eleven external and internal injuries and that the deceased died due to said injuries within 5 to 20 hours prior to postmortem examination.
33. In the cross‐examination he deposed that it is possible to sustain above injuries due to fall of heavy stone on a person.
34. P.W.13 is the Investigating Officer. He deposed that on 17.07.2008 at about 5.30 p.m., he received intimation from out post Police Station Government Head Quarters Hospital, Mahabubnagar with regard to the deceased; that he proceeded to Government Hospital and came to know that the injured was shifted to SVS hospital, Mahabubnagar; that he proceeded to SVS hospital Mahabubnagar and found the deceased was admitted in ICU, and unconscious; that he found P.W.1 present there; that he recorded her statement and obtained her thumb impression; that he returned to the P.S. at 9.45 p.m. and registered statement of P.W.1 in Cr.No.55 of 2008 and issued FIR under Section 324 IPC ; that it is Ex.P‐14; that again he visited SVS hospital on the same day and examined P.W.1 and recorded her statement; that on the next day morning he visited the scene of offence; that he secured the presence of P.Ws.6 and 7; that on 24.07.2008 he visited the SVS hospital to know the condition of the injured and found that she was still unconscious; that P.W.1 informed him that on 24.07.2008 the accused also abused them in the name of Lambadi Caste; that he again recorded the statement of P.W.1; that he submitted memo to the JFCM, Court, Mahabubnagar by adding the offence under SC/ST Act; that it is Ex.P‐16 and; thereafter he handed the case file to the SDPO, Mahahubnagar,. 7
35. P.W.14 is the Investigation Officer, who took over the investigation from P.W.14. He deposed that he was appointed as Investigating Officer in the case on 24.07.2008 by S.P. Mahabubnagar under Ex.P‐17; that on 25.7.2008 he visited SVS Hospital, Mahabubnagar, where the deceased was admitted; that he examined P.W.1 and recorded her statement and also examined P.W.4; that he proceeded to the scene of offence situated near the under‐construction house of accused and open plot of deceased; that he examined P.Ws.2 and 3 and recorded their statement; that on 31.07.2008, he received death intimation from the hospital, and thereafter altered the provision of law from Section 324 to Section 302 IPC and under Section 3(2)(v) of the Act, and submitted altered memo; that it is Ex.P‐18; that on the same day, he visited the hospital and secured the presence of P.Ws.8 and L.W.9, and held inquest over the dead body, and it is Ex.P‐19.
36. He further deposed that he visited the scene of offence and after inquest, in the presence of P.Ws.6 and 7 prepared scene of observation panchanama and rough sketch; that on 4.8.2008, he examined P.W.5 at the village; that he arrested A‐1 on 6.8.2008 and A‐2 to A‐4 on 18.8.2008; that after completion of investigation, he filed charge sheet.
37. In the cross‐examination he deposed that he did not mention in the recovery panchanama that M.O.1 contains blood stains or not; that he did not observe any blood stains on M.O.1.; that a per his investigation and statement of P.W.1, A‐1 hit the deceased with M.O.1 and with brick piece, and caused two injuries, and that during the inquest also, he observed two injuries on the head.
38. Thus in the light of the above evidence it is necessary to examine whether the prosecution could prove the guilt of the accused beyond reasonable doubt.
39. From the above, the cause for the quarrel is that the accused started construction without leaving the space for ingress and egress to the deceased. With regard to injuries, the case of the prosecution as deposed to by P.W.1 is that, A‐1 took out a brick 8 piece and beat the deceased on his left side of head, causing bleeding injury, and that he again picked up a wooden log and beat on the head of the deceased causing severe head injuries, due to which the deceased fell unconscious.
40. So as per the case of the prosecution the deceased received about two injuries at the hands of A‐1. However, as stated above, the eye witnesses i.e., P.Ws.2 and 3 did not support the case of the prosecution and as per the version of P.W.2, at the time of incident the husband of P.W.1 came there and tried to remove the construction and thrown the stones, due to which he fell down along with stones, and he sustained injuries.
41. P.W.14 is the investigating officer, who conducted inquest over the dead body of the deceased. As noted above, as per the evidence of P.W.1, A‐1 beat the deceased with a brick on the head and caused bleeding injuries and he again beat the deceased with a wooden log and the deceased fell unconscious. M.O.1 is the wooden log recovered by P.W.14. In the cross‐examination he deposed that he did not observe any blood stains on M.O.1. In the cross‐examination he deposed that as per his investigation and statement of P.W.1, A‐1 hit the deceased with M.O.1 and with brick piece and caused two injuries and that during inquest also he observed two injuries on the head. The inquest report is Ex.P‐19.
42. Thus as per the evidence of prosecution deceased received two injuries at the hands of A‐1 the same is also mentioned in the inquest report Ex.P‐19.
43. P.W.12 is the doctor who conducted autopsy over the dead body of the deceased and issued Ex.P‐13 post mortem certificate. He deposed that he held post mortem examination over the dead body of the deceased and found eleven external and internal injuries.
44. Thus as per the inquest report Ex.P‐19, and also as per the case of the prosecution, deceased sustained two injuries, whereas as per the postmortem examination 9 Ex.P‐13, deceased sustained eleven internal as well as external injuries. This discrepancy, the prosecution failed to explain.
45. The defence is that as the deceased removed the construction, the stones fell on him and he sustained injuries and A‐1 cannot be held responsible. P.W.2 is alleged to be eye witness to the incident and he also deposed that at that time, the husband of P.W.1 came there and quarreled, and asked them to stop the work and tried to remove the construction and thrown the stones, due to which he fell down along with stones and he sustained injuries. A perusal of Ex.P‐13 post mortem certificate shows that the deceased also sustained injuries to his ribs. Thus probablises the case of the defence that due to collapse of wall, the deceased die.
46. Further, the incident is alleged to have happened on 17.07.2008 at about 2.30 p.m. and the deceased died on 31.07.2008 i.e, he died about fourteen days after the incident. The doctor who treated the deceased at SVS Hospital, Mahabubnagar, was not examined and only the doctor who issued the postmortem examination was examined as P.W.12.
47. Thus the prosecution miserably failed to explain that the injuries received by the deceased are caused by A‐1,and in view of the above discrepancies, it cannot be said that prosecution proved the guilty of A‐1 beyond all reasonable doubt. Hence, he is entitled for acquittal.
48. For the foregoing reasons, the conviction and sentence recorded by the court of Special Sessions Judge for Trial of cases under S.Cs. and S.Ts. (P.O.A.) Act - cum - VII Additional District and Sessions Judge, Mahabubnagar, in S.C.No.94 of 2008 dated 09.12.2011 against A‐1 for the offence under Section 304‐II IPC is set aside, and he is acquitted of the said charge.
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49. Bail bonds executed by A‐1 stands cancelled and M.O.1 shall be destroyed after the expiry of the appeal period.
50. The criminal appeal is accordingly allowed.
51. Interlocutory Applications pending, if any, shall stand closed.
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ M.G.PRIYADARSINI,J DATE:04--08--2022 AVS