Andhra HC (Pre-Telangana)
Chittiboina Krishna Murthy And Nine ... vs The State Of A.P., Rep. By Its Public ... on 20 February, 2014
Bench: K.C.Bhanu, Anis
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CRIMINAL APPEAL NOs. 813 OF 2008 AND BATCH 20-02-2014 Chittiboina Krishna Murthy and nine others.Appellants The State of A.P., Rep. by its Public Prosecutor. Respondent Counsel for the Appellants : Smt. P.Rajani Reddy Counsel for the Respondent: The Addl. Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1981 Crl.L.J. 725 2. AIR 2007 S.C. 2430 3. 2011(2) ALT (Crl.) 354 (SC) 4. 2005 Crl.L.J. 898 5. AIR 1965 SC 939 THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS CRIMINAL APPEAL Nos.813 OF 2008 & 592 OF 2013 AND CRIMINAL REVISION CASE No. 1557 OF 2008 COMMON JUDGMENT:
(Per the Honble Smt. Justice Anis)
1. The Criminal Appeal No.813 of 2008, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment dated 30.06.2008 in Sessions Case No.168 of 2004 on the file of the learned II Additional Sessions Judge, Kadapa at Proddatur, whereunder and whereby the appellants/A.1 to A.10 were found guilty of the offences punishable under Sections 148, 427, 324 and 326 read with 149 of the Indian Penal Code, 1860 (for short, I.P.C.), accordingly they are convicted and sentenced to undergo rigorous imprisonment for four years for the offence punishable under Section 326 r/w 149 I.P.C.; rigorous imprisonment for six months for the offences punishable under Sections 148 and 324 r/w 149 I.P.C. each; and to pay a fine of Rs.100/- each for the offence punishable under Section 427 I.P.C., in default to suffer simple imprisonment for one week each.
2. The Criminal Appeal No.592 of 2013, under Section 378(1) & (3) Cr.P.C., is preferred by the State aggrieved by the aforesaid judgment in respect of acquitting respondents/A.1 to A.10 of the offence punishable under Section 302 read with 149 I.P.C.
3. The Criminal Revision Case No.1557 of 2008, under Sections 397 and 401 of Cr.P.C. is preferred by the revision petitioner/de facto complainant aggrieved by the aforesaid order acquitting the respondents/A.1 to A.10 of the offence punishable under Section 302 read with 149 I.P.C.
4. The case of the prosecution, in brief, is as follows:
The accused are the residents of Sunkesula village and one Vaddemani Sivakumar Reddy (PW1) is the resident of T.Sunkesula village. The accused are the supporters of Congress party while PW1 and one Vaddemani Chinna Eswarareddy (hereinafter referred to as the deceased) and others are the supporters of Telugu Desam party. There was a political rivalry between both the groups since Panchayat elections. The accused were having grudge as their opponent was elected as Sarpanch and were waiting for an opportunity.
While so, on 23.11.2002 at about 8.30 a.m., Vaddemani Maheswara Reddy (PW4), who is the son of the deceased, was proceeding to his fields in his cart, near the house of A.5, the bulls of A.5 attacked the bulls of PW4 and in this regard, A.5 and his father beat PW4 with a stick on his head. Moreover, A.5 informed the said incident to other accused. On the same day, around 9.00 a.m., all the accused armed with hand size stones, formed as a group, came upon the houses of prosecution witnesses by shouting as Champandira Nakodukulanu. Then, A.3, A.4 and A.10 hurled stones on PW1 causing injuries on the head, elbow and right leg. A.1 and A.2 hurled stones on the deceased causing injuries on the head and leg and the deceased fell down. The stones hurled by A.4 and A.10 caused injuries to others. Then, the prosecution witnesses rushed to the scene. The accused climbed the terrace, removed the stones of the chimney walls, damaged it and went away. During the course of the incident, PW2, M.Sambasivareddy (List Witness No.3), PW3 and others received injuries. Then, PW1 and others shifted the deceased to the Police Station and gave a report Ex.P.1.
Basing on Ex.P.1 report, A.Ananda Rao, Sub-Inspector of Police, Yerraguntla (PW10) registered a case in Crime No.89 of 2002 for the offences punishable under Sections 147, 148, 324, 427, 308 read with 149 I.P.C. and issued First Information Report to all the concerned.
During the course of investigation, PW10 examined and recorded the statements of PW1 and others, seized the bloodstained clothes of the deceased in Police Station under Police Proceedings (Ex.P.12), sent the injured to the Government Hospital, Proddatur for treatment, visited the scene of offence, prepared rough sketch of the scene of offence, seized stones at the scene of offence under the cover of panchanama. As the condition of the deceased became serious, on the requisition of Dr. G.David, Civil Assistant Surgeon (PW6), Principal Junior Civil Judge, Proddatur (PW8) recorded the dying declaration of the deceased on 23.11.2002 at 1.20 p.m. On 30.11.2002, PW10 arrested the accused at Thippaluru bus stop and remanded them to judicial custody.
As the condition of the deceased became serious, he was shifted to Government Hospital, Kurnool for better treatment and while undergoing treatment, the deceased succumbed to the injuries on 06.12.2002 by 1.10 a.m. On receipt of the death intimation of the deceased, PW10 altered the section of law, conducted inquest over the dead body of the deceased and sent the same to Dr. L.G.Obulesu, Professor & Head of Department of Forensic Medicine, Kurnool Medical College, Kurnool (PW7) for post-mortem examination, who after conducting post-mortem examination, opined that the cause of death of the deceased was due to shock and head injury.
PW6, who treated PWs 1 to 3 and others, issued wound certificates opining that the injuries sustained by them are simple in nature.
After completion of investigation, the Inspector of Police (PW9) filed the charge sheet into the Court.
5. The trial Court framed the following Charges against the accused:
Firstly, that you A.1 to A.10 on 23.11.2002 around 9 a.m., in Sunkesula village at the houses of V.Sivakumar Reddy L.W.1; Boggala Chandra Obulreddy L.W.2; Moola Sambasivareddy L.W.3; V.Veeramma L.W.4; V.Chennamma L.W.5; V.Maheswara Reddy L.W.6; B.Narayanamma L.W.7; V.Ammanni L.W.8; B.Obulareddy L.W.9; V.Sivareddy L.W.10; V.Pedda Eswarareddy L.W.11; V.Chinna Pullareddy L.W.12;
M.Mallareddy L.W.13 and M.Munisekhar Reddy L.W.14, you formed themselves as members of unlawful rioting armed with stones in order to commit murder of V.Chinna Eswarareddy and you thereby committed an offence punishable u/s 148 IPC and within my cognizance.
Secondly, that you A.1 to A.10 on the same day, time, place and you with an intention to kill V.Sivakumar Reddy L.W.1; B.Chandra Obulreddy L.W.2; M.Sambasivareddy L.W.3; V.Veeramma L.W.4; V.Chennamma L.W.5; V.Maheswarareddy L.W.6; B.Narayanamma L.W.7; V.Ammanni L.W.8; B.Obulareddy L.W.9; V.Sivareddy L.W.10; V.Pedda Eswarareddy L.W.11; V.Chinna Pullareddy L.W.12; M.Mallareddy L.W.13 and M.Munisekhar Reddy L.W.14 under such circumstances you are all armed with stones and caused the death of V.Chinna Eswarareddy and that you thereby committed an offence punishable u/s 307 IPC and within my cognizance.
Thirdly, that you A.3, A.4 and A.10 on the same day, time, place and during the course of the same transaction you armed with stones and you hurled stones on V.Sivakumar Reddy and voluntarily caused hurt on his forehead, right elbow and right leg causing bleeding injuries and you thereby committed an offence punishable u/s 324 IPC and within my cognizance.
Fourthly, that you A.1 and A.2 on the same day, place, time and during the course of action as mentioned in 1st charge, you did commit murder by intentionally and knowingly caused the death of deceased V.Chinna Eswara Reddy by hurling stones which hit the scalp of the deceased as a result the deceased collapsed and that you thereby committed an offence punishable u/sec.302 IPC and within my cognizance.
Fifthly, that you A.4 to A.10 on the same day, time, place and during the course of the same transaction as mentioned in 1st charge you voluntarily caused hurt by means of hurling stones which hit V.Maheswara Reddy L.W.6; B.Narayanamma L.W.7; V.Ammanni L.W.8; B.Obulareddy L.W.9; V.Sivareddy L.W.10; V.Pedda Eswara Reddy L.W.11; V.Chinna Pullareddy L.W.12; M.Mallareddy L.W.13; M.Munisekhar Reddy L.W.14 and thereby you committed the offence punishable u/sec.324 IPC and within my cognizance.
Sixthly, that you A.1 to A.10 on the same day, time, place and during the course of action as mentioned in 1st charge you climbed the terraces of houses of V.Sivakumar Reddy L.W.1;
B.Chandra Obul Reddy L.W.2; M.Sambasivareddy L.W.3; V.Veeramma L.W.4; V.Chennamma L.W.5; V.Maheswarareddy L.W.6; B.Narayanamma L.W.7; V.Ammanni L.W.8; B.Obulareddy L.W.9; V.Sivareddy L.W.10; V.Pedda Eswarareddy L.W.11; V.Chinna Pullareddy L.W.12;
M.Mallareddy L.W.13; M.Munisekhar Reddy L.W.14 and removed the stones of chimney walls, broke and damaged and you caused wrongful loss to the deceased family and to them you thereby committed an offence punishable u/s 427 IPC and within my cognizance.
Seventhly, that you A.5 and A.6 on the same day, time, place and during the course of action as mentioned in 1st charge you voluntarily caused hurt by manes of hurling stones and caused injuries to B.Chandra Obulreddy L.W.2, thereby you committed offence punishable u/s.324 IPC and within my cognizance.
Eighthly, that you A.8 on the same day, time, place and during the course of action as mentioned in 1st charge you voluntarily caused injuries by means of hurling stone on M.Sambasiva Reddy L.W.3, thereby committed offence punishable u/s 324 IPC and within my cognizance.
Ninthly, that you A.9 on the same day, time, place and during the course of action as mentioned in 1st charge you voluntarily caused injury to V.Veeramma L.W.4 by hurling stone on him and thereby committed offence punishable u/s 324 IPC and within my cognizance.
Tenthly, that you A.7 on the same day, time, place and during the course of action as mentioned in 1st charge you voluntarily caused hurt by means of hurling stone on V.Chennamma L.W.5 and caused injury to him and thereby committed an offence punishable u/s 324 IPC and within my cognizance.
Lastly, that you A.3 to A.10 on the same day, time, place and during the course of the said transaction as mentioned in 1st charge you were members of an unlawful assembly and did in prosecution of the common object viz., murder of V.Chinna Eswara Reddy by hurling stones and you committed the offence punishable u/s 302 r/w 149 IPC and within my cognizance.
When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.
6. To substantiate its case, prosecution examined P.Ws. 1 to 10 and got marked Exs.P.1 to P.16.
7. After closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating material appearing against them in the evidence of prosecution witnesses. The accused denied the same and stated that they had no defence evidence, but Exs.D.1 to D.4 were got marked.
8. The trial Court, upon considering the evidence on record, convicted A.1 to A.10 as stated supra while acquitting them of the charge under Section 302 r/w 149 I.P.C. Aggrieved thereby, the present Criminal Appeals and Criminal Revision Case are preferred by the accused, State and the de facto complainant respectively.
9. Now, the points that arise for determination are
1) Whether the death of the deceased is homicidal?
2) Whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offences punishable under Sections 148, 427, 324 and 326 read with 149 I.P.C.? 3) Whether the acquittal recorded by the learned Sessions Judge in respect of charge under Section 302 r/w 149 I.P.C. is liable to be set aside? and 4) Whether the judgment of the trial Court is correct, legal and proper or not?
10. The learned counsel for appellants/accused in Crl.A.No.813 of 2008 argued that PW1 in his evidence admitted that there are no steps either in front or back of his house, therefore question of accused and others climbing upstairs and throwing stones does not arise and this falsifies the entire prosecution story; that the doctor who treated the deceased was not examined by the prosecution, which is fatal to its case as the deceased after receiving injuries survived more than 13 to 15 days and the prosecution has not established that what type of treatment the deceased received and therefore, non-examination of the said doctor is also fatal as no opportunity was given to the accused to know the health condition of the deceased after the alleged incident; that the statement of the deceased recorded under Section 161 of Cr.P.C. by the police is also an important document, but the same was not produced before the Court; that the trial Court has not given finding on the common object to attract the offence punishable under 149 I.P.C. and relied on the decisions reported in Bhudeo Mandal and others Vs. State of Bihar , State of Punjab Vs. Sanjiv Kumar and others and Kuldip Yadav and others Vs. State of Bihar .
It is further argued that PWs 1 to 4 are interested witnesses and their evidence cannot be relied upon; that the prosecution has not explained the delay in lodging the First Information Report; that no independent witnesses were examined though the alleged incident had taken place during the day time; that the prosecution also failed to explain who caused the injuries to whom and there are improvements in the evidence of prosecution witnesses; that the Investigating Officer though seized the clothes, has not produced the same, likewise he seized the weapon of offence i.e. stones, but they are not produced into the Court; that PW4 is not an eyewitness, but he is the son of the deceased and he came to the scene of offence after the incident; that stone is a deadly weapon or not is to be determined basing on its size and the trial Court has not given its finding on that aspect, therefore all the accused are entitled for acquittal and relied on a case-law reported in Mathai Vs. State of Kerala .
It is further argued that the trial Court convicted the accused basing on the evidence of PWs 1 to 3, who are interested witnesses; that their evidence is full of contradictions and discrepancies; that the prosecution failed to examine all the injured witnesses; that the fracture injury to the head of the deceased found in the post-mortem examination report cannot be connected to the incident; that due to political rivalry in the village, a false case has been foisted against the accused at the instance of rival political leaders; that the trial Court failed to see that the dying declaration was incomplete and ambiguous and as such, it cannot be relied upon; that the ingredients of Section 149 I.P.C. are not attracted in the present case and finally prayed the Court to allow the appeal by acquitting the accused of all the charges.
11. The learned Additional Public Prosecutor argued that the trial Court ought to have seen that the ingredients to constitute the offence punishable under Section 302 read with 149 I.P.C. are established; that the trial Court has awarded lesser punishment to the accused and that basing on the evidence on record, all the accused are liable for punishment of imprisonment for life and prayed the Court to allow the appeal.
12. The learned counsel for the petitioner in Crl.R.C.1557 of 2008 adopted the arguments of the learned Additional Public Prosecutor and contended that all the appellants are liable for punishment under Section 302 read with 149 I.P.C.
13. Point No.1:
PW5, who is one of the inquest panchayatdars, stated in his evidence that in his presence, police held inquest over the dead body of the deceased and under Ex.P.2, he gave opinion regarding the cause of death and he signed on the inquest report. In the cross-examination, he stated that apart from him, two other persons were also examined by the police at the time of inquest. PW10 stated that he visited the Government Hospital, Kurnool and held inquest in the presence of the mediators.
14. A perusal of Ex.P.2 shows that the inquest panchayatdars gave opinion that the stones pelted by other accused hit the complainant and his persons and caused bleeding injuries. It is further stated that all six injured persons were shifted to Government Hospital at Proddatur and Chinna Eswarareddy who received severe and grievous bleeding injuries was shifted to Kurnool Government Hospital for better treatment and while undergoing treatment he died.
15. PW7, the doctor, who conducted post-mortem examination over the dead body of the deceased on 06.12.2002 in between 1.15 p.m. and 2.15 p.m. on the requisition of the police, found the following injuries:
1. A sutured surgical wound present on right side of the head above the ear, semi circular in shape measuring 15 cms. in length and having 13 stitches. The margins were clear cut. Internally echymosis of right temporal muscles present with burn hole of right parietal bone.
A linear fracture of right parieto-temporal bones of 12 cms. and 10 cms. in size. There are diffused subdural haematoma of right occipital lobe of the brain and intra cerebral haematoma of right from to temporal areas of brain.
2. Sutured lacerated wound on front of left ankle with 2 stitches measuring 2 cms., sub-cutareous deep with echgmosis.
PW7 gave opinion that the deceased died due to shock due to head injury. Ex.P.8 is the post-mortem certificate issued by him. He also stated that the injuries are possible blunt object like stones.
16. A perusal of Ex.P.8 - post-mortem certificate also shows that the deceased died due to shock due to head injury. Thus, from the evidence of PWs 5 and 7 coupled with Exs.P.2 and P.8, it is evident that the deceased met with a homicidal death.
17. Points 2 to 4:
Now, it has to be seen whether the accused are the assailants who formed into unlawful assembly on 23.11.2002 armed with hand sized stones, attacked PWs 1 to 3, deceased and other injured persons due to previous political rivalry.
18. PW1, who is the complainant and the injured, stated in his evidence that the deceased was related to him as uncle; that he knows the accused and all are residents of T.Sunkesula village; that PW4 is the son of the deceased; that the deceased was tethering his cattle opposite to the house of A.5 and his house is also near to the house of A.5; that the bulls of A.5 were also near the bulls of the deceased; When PW4 was tying bulls to the cart, the bulls of A.5 got frightened, then A.5 and the his father picked up a quarrel with PW4; that on hearing the shouts, the deceased, PW3 and one Vaddemani Veeramma went to that place, by that time A.5 and his father beat PW4; that the deceased and others pacified PW4 and sent PW4 to the filed; that the deceased and others were informed about the incident to him, PW2 and Moola Sambasivareddy; that at about 9.00 a.m., all the accused armed with stones came to his house, went upstairs and pelted stones on the deceased shouting that he should be killed; that the stone hurled by A.2 hit the left leg of the deceased, the stone pelted by A.1 hit the deceased on the right ear and the deceased fell down; that A.4 hit him with a stone on his right hand, the stone pelted by A.10 hit his right leg, A.3 hit him with a stone on his forehead; that PWs 2 and 3 and Moola Sambasivareddy and Vaddemani Veeramma also received injuries in stone pelting; that the chimneys of the house of the deceased and one Vaddemani Pedda Eswarareddy were also damaged; that the accused went away on noticing the arrival of their people; that his statement was recorded by the police under Ex.P.1; that they were sent to the Government Hospital, Proddatur for treatment; that the deceased was taken to the Government Hospital, Kurnool and after 13 days, he died; that they belong to Telugu Desam party, whereas the accused belong to Congress party; that the accused bore grudge at them as the candidate supported by them in the panchayat elections was elected; that previously also, PW4 was injured by A.1, A.2 and others and a case was filed regarding that incident and that the present incident was due to previous grudges.
19. PW2 is also an eyewitness to the occurrence. He deposed regarding the previous panchayat elections. According to him, on the date of the incident, the accused came as a group by shouting that they may be killed and went to the upstairs of the house of PW1 and began pelting stones; that A.2 threw a stone which hit on the left leg of the deceased; that the stone hurled by A.1 hit the deceased on the right side of the head; that the stone hurled by A.6 hit his left knee and A.5 also hit him with a stone on his left knee; that the accused also damaged the chimneys; that after seeing the arrival of their supporters, the accused went away; that they went to the Police Station, from there he was referred to Government Hospital, Proddatur along with other injured and that the deceased was referred to Government Hospital, Kurnool and 13 days thereafter, the deceased died.
20. PW3 is the wife of the deceased. She deposed regarding the dispute between her son and A.5 earlier to the present incident. She further stated that on the date of the incident, herself, PW1, PW2 and the deceased received injuries. She also deposed about the damage caused to the chimneys of her house as well as the house of Vaddemani Pedda Eswarareddy. She further stated that A.2 hurled a stone which hit on the left leg of the deceased, A.1 hit the deceased with a stone on the right side of the head and A.7 hit her with a stone on the right foot and others were also received bleeding injuries in the stone pelting by other accused.
21. PW4 is the son of the deceased and PW3. He is not an eyewitness to the present incident. He deposed regarding the previous incident with regard to tying of the cattle in front of the house of A.5. He also stated that when he tried to tie the cattle to the cart to reach their field, the bulls of A.5 were frightened, on that A.5 and his father beat him, then his parents and others pacified and sent him to the field. He further deposed that he told A.5 and his father that he would deal with them later. He further deposed that he came to know that his parents and others were injured by the accused and his father died in the Government Hospital, Kurnool after 13 days.
22. According to the prosecution, one Moola Sambasiva Reddy and Vaddemani Veeramma (List Witnesses 3 and 4) are also injured persons, but they have not been examined by the prosecution.
23. As per Ex.P.14, the scene of offence is situated in the street in front of the house of Vaddemani Pedda Pulla Reddy of T.Sunkesula village of Yerraguntla Mandal. The Investigating Officer (PW10) in his evidence stated that after receipt of the complaint under Ex.P.1, he registered the same and issued First Information Report under Ex.P.11. He further deposed that he visited the scene of offence and prepared the scene of offence observation proceedings under Ex.P.14. According to PW10, the scene of offence is in front of the house of PW1. However, the accused have not denied or disputed regarding Ex.P.14 and about the scene of offence.
24. According to the prosecution, on 23.11.2002 at about 8.30 a.m., PW4, who is the son of the deceased and PW3, was proceeding to his fields in his cart, at that time the bulls of A.5 attacked the bulls of PW4 and on that, A.5 and his father beat PW4 with a stick on his head and that A.5 informed the incident to others, on which all the accused armed with stones and formed into unlawful assembly. Whereas, PW4 in his evidence stated that while they were tying their cattle in the open space in front of the house of A.5, the bulls of A.5 frightened, then A.5 questioned him and he also retorted to A.5 as to how he kept his cattle on the road, on that A.5 and his father beat him and he too shouted at them and immediately, his parents came and pacified him, then while going to fields, he told A.5 and his father that he would deal with them and thereafter, he came to know about the present incident.
25. According to the prosecution, PWs 1 to 3 are the eyewitnesses. They clearly stated in their evidence about the overt acts against A.1 to A.7. According to them, A.1 and A.2 beat the deceased with the stones on the left leg and on the right ear, whereas A.4 and A.3 beat PW1 with stones on the right hand and forehead and that A.6 and A.5 beat PW2 on the left knee and A.7 hit PW3 with a stone on the right foot. Thus, the evidence of PWs 1 to 3 regarding the overt acts made by A.1 to A.7 against them and the deceased, is corroborated with each other.
26. Now, it has to be seen how far the dying declaration given by the deceased is to be believed. Immediately after the incident, the deceased was taken to the hospital on 23.11.2002, and the Junior Civil Judge, Proddatur (PW8) received hospital intimation for recording the dying declaration of the deceased. PW8 in his evidence stated that after receiving Ex.P.9 medical intimation, he proceeded to the Government Hospital, Proddatur and recorded the dying declaration from 1.30 to 1.50 p.m. and Ex.P.10 is the dying declaration recorded by him, which contains the endorsement of the duty doctor with regard to the fit condition of the patient. In the cross-examination of PW8, it was elicited that in Ex.P.10, he mentioned that the patient was in the corridor of the hospital, which was adjacent to the ward and the people can have an access to him, but he denied that others were sitting around the patient while he entered the corridor. It was further elicited that PW8 did not mention with regard to the fit state of mind of the patient except what he recorded in the body of Ex.P.10 and he also did not mention the names of Kapuvaru in Ex.P.10.
27. The learned counsel for the accused argued that the dying declaration Ex.P.10 is not reliable, ambiguous and incomplete, because the deceased was not in a fit state of mind, that is the reason why the deceased stated that the sons of Chittiboina Krishna Murthy (A.1) were throwing the stones, but he did not give the names of the sons of the said Chittiboina Krishna Murthy. It is further argued that the said Krishna Murthy (A.1) had four sons and which son had thrown the stones is also not mentioned by the deceased, and therefore, Ex.P.10 cannot be relied upon.
28. A perusal of Ex.P.10 shows that the deceased gave declaration before PW8 as under:
The sons of Chittiboina Krishna Murthy were throwing stones at my children from the terrace. When I shouted at them not to throw stones on my children, then, they injured me with stones on legs and at my ear. Kapu caste people were present there.
In this regard, it is pertinent to refer to a decision reported in Thurukanni Pompiah and another Vs. State of Mysore , wherein it is held in paragraph No.9 as follows:
9. Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person's death comes into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration. The law on this subject is stated by Sinha, J. in Khusal Rao v. State of Bombay, (AIR 1958 SC 22 at p.29) thus:
"Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction."
29. But, in the present case, the prosecution is not relying only on Ex.P.10 dying declaration. PWs 1 to 3 are the eyewitnesses who have clearly stated about the attack made by A.1 to A.7 with stones against them as well the deceased, due to which they sustained injuries. Therefore, Ex.P.10 can be reliable and there is no ambiguity. Further, as per the evidence of PWs 1 to 3, the sons of A.1 i.e. A.2 and A.3 were present at the scene of offence, who were throwing stones at that time and by seeing them, the deceased must have been shouted by saying not to throw the stones. Therefore, Ex.P.10 can be safely relied upon to come to a conclusion that on the date of incident, A.2 and A.3 were present.
30. PW1 in his evidence stated that on the date of incident, A.4 hit him with a stone on his right hand, A.10 hit him with a stone on his right leg and A.3 hit him with a stone on his forehead, as a result he received injuries and he was treated by PW6. Likewise, PW2 in his evidence stated that the stone hurled by A.6 hit his left knee and A.5 hit him with a stone on his left knee, as a result he received injuries in the incident and he was also treated by PW6 on the same day. PW3 also stated in her evidence that A.7 hit her with a stone on the right foot and she was also treated by PW6 on the same day.
31. A perusal of the evidence of PW6 shows that he examined PW2 at 11.30 a.m., PW1 at 11.40 a.m. and PW3 at 12.20 p.m. and issued Exs.P.4, P.3 and P.7 wound certificates respectively. As per the wound certificates, PWs 1 to 3 suffered simple injuries. PW6 in his evidence clearly stated that the injuries suffered by PWs 1 to 3 are possible in a stone pelting. In the cross-examination, PW6 stated that the injury No.1 of PW1 might be caused due to a fall on hard surface, injuries 2 and 3 of PW1 are possible by a fall on hard surface and the injuries on PW2 can be caused by a fall and that the said injuries are small injuries.
32. PW9 is the Inspector of Police, Yerraguntla. He stated in his evidence that after receiving the case diary file from PW10, he visited T.Sunkesula village, recorded the statements of PWs 1 to 4 and others and after receiving medical certificates, filed charge sheet into the Court. In the cross- examination of PW9, nothing has been elicited to disprove his evidence.
33. The learned Additional Public Prosecutor argued that the trial Court erred in disbelieving the evidence of PWs 1 to 3 and dying declaration of the deceased, thereby eliminated the charge for the offence punishable under Section 302 read with 149 I.P.C. and convicted the accused under Section 326 read with 149 I.P.C., and therefore, the accused are liable for punishment under Section 302 read with 149 I.P.C. but not under Section 326 read with 149 I.P.C. It is further argued that the dying declaration of the deceased clearly established that the son of A.1 i.e. A.2 and A.3 are responsible for causing the death of the deceased, and therefore, they are liable for punishment under Section 302 read with 149 I.P.C. along with other accused. It is also argued that the evidence of PWs 1 to 3 further corroborated the dying declaration of the deceased, because all the accused were identified by the eyewitnesses PWs 1 to 3, who were present at the time of incident and who also received injuries along with the deceased and whose evidence is corroborated with each other, and therefore, the acquittal order recorded by the trial Court in respect of charge under Section 302 read with 149 I.P.C. is against the evidence on record and needs interference by this Court.
34. The learned counsel for the accused relied on a decision reported in Bhudeo Mandal and others Vs. State of Bihar (1 supra), wherein the Honble Supreme Court held as under:
We would like to point out that whenever the High Court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 of the Indian Penal Code, the essential ingredient of Section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object.
In another decision reported in State of Punjab Vs. Sanjiv Kumar and others (2 supra), the Honble Supreme Court held as under:
The pivotal question is applicability of Section 149, IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence is an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section
141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word object means the purpose of design and, in order to make it common, it must be shared by all.
In another decision reported in Kuldip Yadav and others Vs. State of Bihar (3 supra), the Honble Supreme Court Held as under:
Before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed wound not be sufficient to prove common object.
Section 149 creates a specific offence and deals with punishment of that offence. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established.
35. As per the evidence available on record, the accused are the supporters of Congress party, whereas PW1, the deceased and others are the supporters of Telugu Desam party and there is political rivalry between them since panchayat elections. On the date of the incident, a petty quarrel was ensued between PW4 and A.5 regarding the bulls and on that, A.5 and his father attacked PW4, then the deceased and PW3 pacified the matter and at that time, PW4 challenged A.5 and his father that he would deal with them later. On the same day, at about 9.00 a.m., all of a sudden, the accused formed into unlawful assembly in front of the house of Vaddemani Pedda Pulla Reddy i.e. to the southern side house of Pedda Pulla Reddy, attacked the deceased and PWs 1 to 3 and in the said attack, the deceased sustained injuries and 13 days thereafter, he died while undergoing treatment. Therefore, it is clear that all the accused formed into unlawful assembly and attacked the deceased and PWs 1 to 3 in order to cause bodily harm and wrongful loss to them, thereby all the ingredients of Section 141 I.P.C. are established. Hence, the case-laws (1 to 3 supra) cited by the learned counsel for the accused are not applicable to the present facts of the case.
36. As per the evidence of PWs 1 to 3, they sustained simple injuries and their evidence is corroborated with the evidence of PW6, who treated them and issued wound certificates. PW6 also stated that the injuries sustained by PWs 1 to 3 are possible in stone pelting. Thus, in view of the evidence of PWs 1 to 3 coupled with the evidence of PW6, it is evident that on 23.11.2002, all the accused formed into unlawful assembly armed with stones with common object to attack PWs 1 to 3 and pelted stones, due to which they sustained injuries. Thus, the prosecution is able to prove the guilt of the accused beyond all reasonable doubt for the offences punishable under Sections 148 and 324 read with 149 I.P.C.
37. Admittedly, the prosecution has not placed any record before the Court with regard to the nature of treatment taken by the deceased in the Government Hospital, but as per the post-mortem certificate, the cause of death was clearly mentioned as shock due to head injury.
38. As per Ex.P.10 dying declaration, the deceased sustained two injuries. Even, PWs 1 to 3 categorically stated that the deceased received two injuries i.e. one injury to his left leg and another injury to his right ear. Immediately after the incident, the deceased was admitted in the Government Hospital at Proddatur. The Investigating Officer has not filed any record to show that what are the actual injuries received by the deceased on the date of incident in the hands of the accused and no medical record was filed into the Court. Admittedly, 13 days after the incident, the deceased died. As per the post-mortem report, the deceased sustained two injuries and from Government Hospital, Proddatur, he was shifted to Government Hospital, Kurnool and there, the deceased died while undergoing treatment. The post-mortem report shows that the deceased died due to head injury. As per the evidence of PWs 1 to 3, after receiving injuries, the deceased was in conscious state and he was speaking even in the police station and also in the hospital. After receiving injuries, the deceased survived for 13 days and thereafter, he died. Therefore, the contention of the learned counsel for the accused that if the proper treatment is given to the deceased he would have survived, has some force.
39. The leraned counsel for the accused relied on a decision reported in Mathai Vs. State of Kerala (4 supra), wherein the Honble Supreme Court held as under:
Whether a particular article can per se cause any serious wound or grievous hurt or injury has to be determined factually. The evidence of Doctor clearly shows that the hurt of the injury that was caused was covered under the expression grievous hurt as defined under S.320, IPC. The inevitable conclusion is that a grievous hurt was caused. It is not that in every case a stone wound constitute a dangerous weapon. It wound depend upon the facts of the case. The facts involved in a particular case, depending upon various factors like size, sharpness, would throw light on the question whether in the case S.325 or S.326 would be applicable. In the instant case considering the size of the stone which was used, as revealed by material on record, it cannot be said that a dangerous weapon was used.
Therefore, the conviction is altered to S.325, IPC.
For indiscriminating stone pelting on one person continuously, it may cause serious injuries. Here, not only the deceased, but PWs 1 to 3 also sustained injuries. The deceased received only two injuries including one head injury, which is above the ear and semi circular shape with 13 stitches, so it can be called as grievous hurt as per Section 320 I.P.C. Hence, the trial Court rightly held that taking a stone and hurling at persons with considerable force, is a dangerous means. Even, the accused may not have intention or knowledge to commit culpable homicide or murder. Hence, the charge under Section 302 read with 149 I.P.C. would not attract to the facts of the present case and the trial Court rightly convicted the accused for the offence punishable under Section 326 read with 149 I.P.C. Hence, the case-law (4 supra) cited by the learned counsel for the accused has no application to the facts of the present case.
40. PW1 in his evidence stated that the chimneys of the houses of the deceased and one Vaddemani Pedda Eswarareddy were also damaged and PW3 also corroborated with the evidence of PW1 on that aspect. Of course, the said Vaddemani Pedda Eswarareddy was not examined by the prosecution. However, PW1 in Ex.P.1 also stated that some of the accused climbed the terrace, removed the chimney stones, walls and damaged. Thus, from the evidence of PWs 1 and 3, it is clear that on the date of the incident, the accused also damaged the chimneys of the houses of the deceased and one Vaddemani Pedda Eswarareddy. Thus, the prosecution is able to prove the offence punishable under Section 427 I.P.C. against the accused.
41. Thus, the trial Court rightly convicted the accused as stated supra and that order needs no interference of this Court. Hence, the appeals and revision case are devoid of merit and are liable to be dismissed.
42. In the result, Crl.A.Nos.819 of 2009 and 592 of 2013 and Crl.R.C.No.1557 of 2008 are dismissed, confirming the judgment dated 30.06.2008, passed by the learned II Additional Sessions Judge, Kadapa at Proddatur, in S.C.No.168 of 2004.
43. Miscellaneous Petitions pending, if any, in all the appeals shall stand closed.
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(K.C. BHANU, J)
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(ANIS, J) 20.02.2014