Andhra Pradesh High Court - Amravati
Pinjari Badde Saheeb Hotel Badesaheb ... vs The State Of Ap., on 13 December, 2019
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE MS. JUSTICE J. UMA DEVI
Criminal Appeal No. 1197 of 2013
JUDGMENT:(Per Hon'ble The Acting Chief Justice C.Praveen Kumar)
1) Accused No. 1 and 2 in Sessions Case No. 86 of 2011 on the file of the II Additional Sessions Judge, Kurnool at Adoni, are the appellants herein. Originally, Accused No. 1 to 4 in the above Sessions case was tried for the offence punishable under Section 302 read with Section 34 I.P.C. While acquitting Accused No. 3 and 4, the learned Additional Sessions Judge, Adoni, convicted Accused No. 1 and 2 and sentenced them to suffer imprisonment for life and also to pay a fine of Rs.2,000/- each, in default, to suffer simple imprisonment for one year each. Challenging the same, the present appeal came to be filed.
2) The facts, as culled out, from the prosecution witnesses are as under:
i) The deceased is the elder brother of PW1, who is none other than the sister of PW3. Pinjari Khajamma [not examined] is the wife of the deceased, is the elder sister-in-law of PW3.
ii) The mother of PW3 [late Pinjari Dasthagiriamma-LW1] started a small kirana shop nearby their house. The accused also started a small kirana shop. As the family of PW3 and others were making good money, the accused became jealous and bore grudge against them. Subsequently, a small hotel was started by the accused, nearby the house of Harijana Bazari. PW3 and his family members also started a small hotel in the same street. 2
Later, the accused took a small place nearby the RTC bus stand and started a small hotel. As the hotel business became not profitable, PW3 closed the hotel and started vegetable business. It is said that, because of this, disputes arose leading to the quarrel with the accused. It is said that, the deceased who was involved in politics became very popular in the village, because of which, the accused also bore grudge against him.
iii) On the fateful day, PW1 claims to have seen Accused No. 1 beating Pinjari Chinna Thikkaiah [the 'deceased'] on the left side of the head, while, A2 beat the deceased with a stick on his head. Accused No. 3 also beat the deceased with a stick on his neck, while, A4 beat the deceased on the neck with a stick. The deceased is said to have received bleeding injuries on the neck and head. PW1 who claims to have seen the incident proceeded to save the deceased. As the accused pulled her aside, PW1 went to her mother crying and informed her about the incident. Pursuant thereto, PW1 and her mother came to the scene of offence. By the time they reached the scene of offence, the accused were still beating the deceased. It is the case of PW1 that, by the time she reached the scene, her elder brother Pinjari Badesaheb [PW3] and sister-in-law [Pinjari Khajamma] were present at the scene of offence. After seeing them, the accused threw their sticks at the scene and left the place. Along with PW1, Harijana G. Karunakar [PW7], Boya Pedda Venkateswarlu [PW6] and Bazaranna have also witnessed the incident. At that point of time, one S. Shankar Reddy, Police Constable [PW4] who came to the scene of offence, called the ambulance over phone and then 3 shifted the injured to the Government Hospital, Adoni. For better treatment, the injured was shifted to the Government Hospital at Kurnool.
iv) On coming to know about the incident on 29.11.2009, PW10-SI of Police, rushed to the scene of offence, where, he came to know about the attack on the deceased by the accused. But, by then, the injured was shifted to Government Hospital, Adoni. He posted ASI and constables in the village to maintain law and order and rushed to Government Hospital, Adoni. He secured the mother of the deceased [Smt. P. Dasthagiramma] and recorded her statement. The said statement is marked as Ex.P6. He returned to the police station and basing on Ex.P6, registered a case in Cr. No. 260 of 2009 under Section 307 read with 34 of IPC. Ex. P7 is the First Information Report. He again went to Mulugundam village. At about 11.00 PM, he was informed about the death of the deceased. He collected the death intimation and altered the section of law from Section 307 read with 34 IPC to Section 302 read with 34 of IPC and issued Ex.P9 the express FIR.
v) On receiving information about the death of the deceased through PW10, PW12-Inspector of Police, proceeded to the scene and posted a picket to maintain law and order. On the next day, at about 6.15 AM, he proceeded to the scene of offence, and in the presence of PW9 and two others, he held inquest over the dead body. During inquest, he seized MOs. 3 to 5. Ex.P4 is the inquest report. After completing the inquest proceedings, he sent the dead body for post-mortem examination.
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vi) PW11 - Assistant Professor of Forensic Medicine, K.M.C. Kurnool, conducted autopsy over the dead body and issued Ex.P10 - the post mortem certificate. According to the Doctor, the cause of death was "head injury".
vii) After inquest, PW12 prepared a rough sketch of the scene, under Ex.P11. He also prepared a panchanama of the scene under Ex.P9. At the scene, he seized four pattudu sticks, one plastic matt, blood stained earth and control earth as MOs. 1 and 2. On 01.12.2009, he secured PW4, PW5, PW6 & PW7 and recorded their statements. On 08.12.2009, on credible information, he left Aspari village along with PW10 and staff and arrested the accused. After collecting all the necessary documents, he filed charge-sheet against the accused, which was taken on file as P.R.C. No. 35 of 2010 on the file of Judicial Magistrate of First Class, Alur.
viii) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished and as the case is triable by a Court of Sessions, it was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, charge under Section 302 read with 34 IPC came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined PW1 to PW12 witnesses and got marked Exs.P1 to P6, beside marking MOs. 1 to 5. Out of 12 witnesses examined by the prosecution, PW2 and PW5 did not support the prosecution and were treated hostile by the prosecution. After completion of prosecution evidence, the 5 accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but however did not adduce any defence evidence. Relying upon the evidence of eye witnesses, which was held to be corroborated by medical evidence, the learned Sessions Judge while acquitting Accused No. 3 and 4, convicted Accused No. 1 and 2 under Section 302 I.P.C. The case against Accused No. 3 and 4 was rejected as the overt act attributed against them does not get corroboration from medical evidence. Challenging the same, the present appeal came to be filed.
3) Sri K.V. Raghuveer, learned counsel for the Appellants would contend that, in view of the enmity between both the groups, the appellants have been implicated in the case. According to him, the deceased had number of enemies in the village and it is they who were responsible for the incident. Taking into consideration the inconsistencies in the evidence of PW1 and PW3, the counsel would contend that their evidence cannot be accepted. The evidence of PW4 cannot be believed for the reason that, no material has been placed on record to show that he was posted on duty at the outpost on the date of incident. Apart from that, according to him, the evidence of PW1 would show that PW3 though came forward as an eye witness to the incident, but, in-fact has not witnessed the same. It is urged that, the evidence of other witnesses also does not inspire confidence to fasten the Accused No. 1 and 2 with liability.
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4) On the other hand, the learned Public Prosecutor would contend that, PW1 is a natural witness, whose evidence remained unshaken. According to him, PW1 came to the village for taking medicine, and as on the date of incident, she wanted to go to her home, but, her mother requested her to inform the deceased. At that point of time, the incident in question took place. Therefore, the learned Public Prosecutor would contend that since all the witnesses are natural witnesses and as their evidence gets corroboration from medical evidence, the finding of the Trial Court in convicting the Accused No. 1 and 2 warrants no interference.
5) The point that arises for consideration is, "whether Accused No. 1 and 2 committed offence which is punishable under Section 302 read with 34 IPC?"
6) In order to appreciate the same, it would be useful to refer to the evidence of the eye witnesses, more particularly the evidence of PW1, PW3, PW6 and PW7.
7) (i) PW1- the sister of the deceased, in her evidence in chief deposed about the disputes between the two families and the competitiveness in the business run by both the families. Coming to the incident proper, she deposed that, while she was searching for her brother, all of a sudden the accused attacked her brother. Accused No. 1 is said to have beat the deceased on the left side of the head with stick, while, A2 also beat the deceased with a stick on his head.
Similarly, Accused No. 3 also beat with a stick on the neck of the deceased along with Accused No. 4. From the evidence in chief of this witness, it is evident that, the deceased was attacked by the four 7 accused causing two injuries on head. Accused No.1 and 2 caused injuries on head while Accused No. 3 and 4 caused injuries on neck of the deceased. In the cross-examination, PW1 admits that, she did not state before the police about the deceased being a Congress worker and used to help the villagers in getting the works done. In the cross- examination, PW1 admits that there are no disputes in between their family and the family of the accused because of the prosperity in the business being done by her mother. She further admits that, no panchayats were held to settle the disputes and that the deceased and accused did not quarrel at anytime.
(ii) The cross-examination of PW1 further reveals that, in the ambulance, PW1, her mother and one police constable went to the hospital and she did not observe whether the police constable informed Aspari police over phone. It was further elicited that the brother of the deceased Lalamma [different case] lodged a report against the deceased saying that the deceased and others killed Lalamma. It was further elicited that Harijana Bojanna, H.Batukanna, Pinjari Bade Sab, Harijana Bhusanam, Ramakrishna Reddy, Manohar Reddy and Sreenivasa Reddy together used to work for Congress party. Along with PW1, Karunakar, Harijana Bhasakar, Pedda Venkateswarlu, Manohar Reddy and Sreenivasa Reddy came to the court. He states that two persons, namely, Manohar Reddy and Sreenivasa Reddy took PW1 to the counsel for briefing. It was further elicited in the cross-examination that, 15 minutes before reaching the scene of offence, the accused started assaulting the deceased. When she tried to rescue, she was pulled down. Even then, PW1 did not receive any injuries. It is stated that, 2 or 3 persons will be there in the police outpost. It was further 8 elicited that, PW1, her mother and one constable were there when her statement was recorded by the police and that PW1, Kondamma and her mother have put their thumb impression over the said statement and thereafter, PW1 statement was again recorded.
(iii) Pw1 was recalled and was examined on 21.07.2013. In the cross- examination, it was suggested that, parents of Lalamma who died due to health problem got the case filed against the deceased herein and his family members. It was further elicited that she informed to police that Accused No. 1 beat the deceased on the left side of head touching the ear; and Accused No. 2 beat the deceased near the left ear on the head. She further admits that, what she stated to police about Accused No. 2 beating the deceased near left ear is correct, but her version in chief that Accused No. 3 beat the deceased with stick on his neck is incorrect. Similarly, in examination-in-chief, Pw1 stated that Accused No. 4 beat the deceased on the neck, but, her statement before the police that Accused No. 4 beat the deceased on his head causing swelling injury.
8) From the cross-examination of PW1, it is evident that PW1 changed overt act of Accused No. 3 and 4, whereby, Accused No. 3 is now said to have beat the deceased on left ear, while, Accused No. 4 on the neck and not on the head, as stated in 161 Cr.P.C. statement. It is also to be noted here that, number of people gathered at the scene, but, none of them made any effort to catch hold of the accused, more so, when the scene of offence is surrounded by the residential areas, as is evident from the evidence of PW1. It is also to be noted that, seven injuries are noticed on the body. Injury number 1 and 2 are on left ear was grievous, while, injury numbers 3, 4 and 5 are abrasions; the 6th 9 injury is a reflexion of scalp contusion present over left side of scalp, while 7th injury is a fracture of skull bone-left temporal bone.
9) After seeing the incident of the accused attacking the deceased, PW1 rushed to her mother, informed her about the incident and thereafter, both of them came to the scene of offence and noticed the accused still beating the deceased. But, by then, PW3 and another person along with police constable were present. But, none of them took any interest to catch hold of the accused. If really PW1 was truthful witness and if really she had no affiliations or any influence from any quarters, there was no need for Manohar Reddy and Srinivas Reddy to take her to a Counsel for briefing. Apart from that, when so many people gathered at the scene, no effort was made by anyone to catch hold of the accused, more so, when the accused threw their sticks and were unarmed with any dangerous weapons. Further, it is difficult to believe that the accused would be still beating the deceased till PW1 brought the mother of the deceased to the scene. If really, the incident continued for 15 minutes or more, as stated by PW1, definitely the injuries on the deceased body would have been more than what they are mentioned in Ex.P10.
10) PW2 was also examined as an eye witness to the incident, but she did not support the case and was treated hostile by the prosecution.
11) Coming to the evidence of PW3, who was also examined as eye witness to the incident, his evidence shows that, on the date of incident at about 5.00 PM, he and Smt. Khajamma were at the house, then PW5 came and informed them about the deceased being attacked by all the 10 four accused in front of the house of Boya Chennaiah. It is said that they were beating the deceased indiscriminately even after he fell down. After seeing them, the accused fled away. PW3 was cross-examined at length, wherein, he admits that, after receiving information from PW5, he rushed to the scene of offence within five minutes and found Venkateswarlu [PW6], Karunakar [PW7], Bojanna, Bathukanna, Bhusanam, Ramakrishna Reddy and Ravi Kumar Setty making attempts to rescue the deceased. But, subsequently, he says that none of the persons present there went to the rescue of the deceased, though, they were at the place. Neither of the persons present there, or PW3 informed the police on phone about the incident. He further states that, he did not inform the police that deceased was involved in politics and he was gaining popularity in the village. To a suggestion that, he has not seen the actual assault was denied by him. It was elicited that the deceased had illegal intimacy with the wife of Accused No. 1 and he came to know about the illegal intimacy through some villagers. No complaint was given to the police with regard to the same and also with regard to the earlier attack made by the accused on the deceased brother at Yemmiganur. He admits that nearby the scene of offence, there are a few hotels and movement of public at that place. He further admits that now and then he visited Manohar Reddy a political leader belonging to Congress party.
12) If the evidence of PW3 is tested with the evidence of the investigation officer -PW12, it shows that, there were no hotels nearby the scene of offence and PW3 never deposed about involvement of Accused No. 3 and 4 in beating the deceased on the neck. The investigation officer further admits that the scene of offence is a busy 11 place surrounded by residential houses and temples and there is a bus stop at a distance of 3/4th kilometre from the scene of offence. PW3 further admits that police outpost is there in the village, but, as on the date of the offence, due to shortage of men, the outpost was not functioning. PW3 states that, one constable was posted at the outpost. He further admits that, there are no tea bunks or small hotels nearby the scene of offence. The tea bunk and small hotel are at a distance of 200 meters from the scene of offence. He further admits that, from the said hotel and tea bunk, one cannot the scene of offence.
13) As stated earlier, the learned Sessions Judge acquitted Accused No. 3 and 4 in view of the version given by PW1 in her cross- examination, namely, that her version before the police being inconsistent to what she stated in court. While, other witnesses, namely, PW3, PW6 and PW7 do not anywhere give any specific overt act to the accused, their consistent version is that all the four accused have attacked the deceased with sticks and beat indiscriminately. In- fact, PW7 categorically states that, Accused No.1 beat the deceased on the left side of the head with sticks. The other accused also beat the deceased with sticks, more particularly on the left side of the head. Similarly, PW6 states that, Accused No.1 beat the deceased on the left side of the ear, while the other accused beat him on the left side of the head. PW3 did not attribute any specific role to accused but, deposed that by the time she went to the scene, the accused were beating the deceased with sticks.
14) At this stage, it is to be noticed that, even as per the evidence of PW1, in her earlier statement, she spoke about Accused No. 4 causing injury on the head of the deceased and Accused No.3 beating the 12 deceased on the left ear. But, however, in the court, she states that Accused No. 3 beat the deceased with stick on his neck, while, Accused No. 4 beat the deceased on his neck. The evidence of Doctor refers to two sutured wound injuries on the left ear; three abrasions and one injury on the scalp and a contusion over left side of scalp extending from frontal region to occipital region. While the seventh injury refers to the fracture of skull bone. In the cross-examination, the Doctor admits that except injuries referred to in Ex.P10, there are no other injuries on the body. He further admits that, he does not concur with the observations made in the book "Medical Jurisprudence and Toxicology"
by Dr. Narayana Reddy that injuries 1 and 2 mentioned in Ex.P10 are possible by fall on hard surface. He further admits that, he could not find any fracture of occipital bone of the skull. It is also to be noted that, according to the Doctor, the cause of death was due to head injury only and not due to cumulative effect of all the injuries.
15) From the above, it is clear that, even if the evidence of all the witnesses is to be accepted, there is no positive evidence on record as to which of the accused beat the deceased on the head.
16) At this stage, it would be necessary to deal with individual overt acts as Accused No. 3 and Accused No. 4 are acquitted.
17) It would be appropriate to note as to what PW1 said about injury on head. While giving evidence in court, she states that, Accused No.1 and 2 beat on the head of the deceased and Accused No. 3 and 4 beat on the neck. This version is inconsistent with her earlier statement wherein she attributes the role of beating on the head to Accused No. 4 also. But, however, gives a go bye to the said version. Apart from that, 13 her version before the police was that, Accused No. 2 beat the deceased near the left ear and not on the head as stated in court. Similarly, PW3 while giving evidence in court deposed stating that the four accused beat the deceased indiscriminately all over the body. If that is so, definitely, there would have been more number of injuries/lacerations over the body, which are not found.
18) Coming to the evidence of PW6, he in his evidence deposed about Accused No.1 beating the deceased on left side of the ear, while, other accused beating the deceased on left side of head, thereby, the involvement of Accused No. 3 and 4 beating on the head of the deceased cannot be ruled out. But, both are acquitted and no appeal is filed by the State.
19) Similar is the version of PW7, who speaks about Accused No.1 beating on the head of the deceased, while, other accused beat the deceased with sticks on the left side of the head. If that is so, there should have been more number of injuries on the head than what is referred to in Ex.P10.
20) In view of the acquittal of Accused No. 3 and 4 and in the absence of any appeal filed, with regard to their acquittal, the question now would be whether Accused No. 1 and 2 can be held responsible for the death of the deceased, since, the cause of death was due to injury to head.
21) From the evidence referred to above, one cannot say with certainty as to whether it was Accused No. 1 or 2 who are responsible for causing the head injury.14
22) It is to be noted that PW3 was not present at the scene of offence.
He claims to have gone there after receiving information from PW5, who did not support the prosecution case and who categorically states that he did not inform anyone about the incident, more particularly, PW3. Therefore, he must have gone to scene of offence sometime after the attack. Further, it is difficult to believe that the attack would have been going on till the arrival of PW3. If really the version of PW3 is to be believed, there were number of persons present at the scene and none of them really made any effort to rescue the deceased or catch hold of the accused, more so, when the accused were not armed with dangerous weapons. Apart from that, as observed by us earlier, PW6 in his evidence states that, he saw the incident, when he, Karunakar and Bazari were going to the hotel nearby the house of Boya Chennaiah. The evidence of investigating officer, which we have referred to earlier clearly indicates that, there was no tea stall near the scene of offence. The nearest tea stall is at the distance of about 200 meters from the scene of offence. The evidence of investigating officer also shows that one cannot see the scene from the said tea stall. Similarly, PW7 in his evidence deposed that, at about 4.30 PM, he, PW6 and Bazarappa went to the tea stall belonging to Accused No. 1 nearby bus stand, but, no tea was available in the hotel of Accused No. 1. He also states in his chief examination that there is another tea bunk in front of the house of Boya Chinna, as such, they went to that hotel and noticed accused attacking the deceased with sticks. But, as observed earlier, the same is found to be false through the evidence of investigating officer, who categorically stated that, there are no tea bunks or small hotels nearby the scene of offence. Hence, a doubt arises as to whether these witnesses were present and witnessed the incident. 15
23) In the result, the conviction and sentence recorded by the learned II Additional Sessions Judge, Kurnool at Adoni vide Judgment, dated 11.12.2013, in Sessions Case No. 86 of 2011 against the appellants/A- 1 and A-2 for the offence punishable under Section 302 read with 34 I.P.C. are set aside. The appellants/A-1 and A-2 shall be released forthwith if they are not required to be detained in any other crime. Fine amount, if any, paid by the appellants/A-1 and A-2 shall be refunded to them.
24) Accordingly, the Criminal Appeal is allowed.
25) Consequently, miscellaneous petitions pending, if any, shall stand closed.
________________________________ JUSTICE C. PRAVEEN KUMAR _______________________ JUSTICE J. UMA DEVI Date: 13.12.2019 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE MS. JUSTICE J. UMA DEVI Criminal Appeal No. 1197 of 2013 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 13.12.2019 SM.