Andhra HC (Pre-Telangana)
Rasuri Venkata Ramana @ Venkata Ramudu ... vs State Of A.P. Represented By Public ... on 26 October, 2004
JUDGMENT P.S. Narayana, J.
1. A-1 to A-5 in S.C.No.10/96 on the file of II Additional Sessions Judge, Cuddapah are the appellants. The Inspector of Police, Rajampet Rural Circle filed charge sheet against the accused under Sections 147, 148, 302, 307, 324, 326, 114 r/w. Section 149 I.P.C. The learned Judge recorded the evidence of PW-1 to PW-11 and Exs.P-1 to P-15 and Ex.D-1 and also M.Os.1 to 5 were marked and ultimately the learned Judge held that A-1 to A-5 are guilty for the offence under Section 148 I.P.C. and convicted and sentenced them to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.500/- each and in default in payment of fine they shall further undergo Simple Imprisonment for a period of one month; A-1 and A-5 were also found guilty for the offence under later part of Section 304 I.P.C. and were convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs.1000/- each and in default of payment of fine they shall further undergo Simple Imprisonment for a period of two months; A-2 to A-4 were found guilty of offence under Section 148 I.P.C. and were convicted and sentenced to undergo Rigorous Imprisonment for a period of two years and also to pay a fine of Rs.500/- each and in default of payment of fine, to further undergo Simple Imprisonment for a period of one month each. A-2 to A-4 were also found guilty for the offence under later part of Section 304 I.P.C. r/w. Section 149 I.P.C. and were convicted and sentenced to undergo Rigorous Imprisonment for a period of seven years and also to pay a fine of Rs.1000/- each and in default of payment of fine, to further undergo Simple Imprisonment for a period of two months and no doubt the sentences imposed as against A-1 and A-2 and A-5 were directed to run concurrently and also the sentences against A-3 and A-4 also were directed to run concurrently. Hence the Criminal Appeal.
2. Sri Praveen Kumar, the learned counsel representing the appellants contended that though there was some time gap between the date of incident and the death of the deceased, no statement had been recorded and no dying declaration also had been recorded. The learned counsel also had pointed out to certain discrepancies in the evidence of PW-1. The learned Counsel would submit that in the first information report, there is no reference to A-5 attacking the deceased and hence it is an improvement. The learned counsel would submit that in this view of the matter, convicting A-5 especially under Section 304 Part-II I.P.C. may not be sustainable. The learned counsel also would submit that the evidence would disclose that two persons were said to have beat the deceased but the medical evidence would disclose only one injury and the same was not explained. Attention of this Court was drawn to the evidence of PW-4, the Doctor, in this regard. The learned Counsel would thus contend that the medical evidence is inconsistent with the other evidence available on record and hence benefit of doubt to be given to the accused. The learned Counsel also would submit that as per the evidence available on record, it appears to be a sudden fight or a sudden quarrel and not a deliberate pre-determined attack and hence the question of unlawful assembly would not arise. In the light of the inconsistencies in the evidence of the prosecution, the accused are entitled to benefit of doubt. The learned Counsel placed reliance on certain decisions.
3. The learned Additional Public Prosecutor would contend that when the incident as such is believed and when it is an unlawful assembly it is but natural that there would be minor discrepancies. The learned Additional Public Prosecutor also would explain that PW-5, the Doctor who conducted post mortem examination had explained that single injury also would be possible even if there are two beatings. The learned Additional Public Prosecutor also would submit that in the light of the events which had happened, definitely the assembly is unlawful assembly and hence it cannot be said that the ingredients of unlawful assembly are not satisfied. The learned Additional Public Prosecutor also placed reliance on certain decisions.
4. Heard the Counsel.
5. The case of the prosecution is that the accused are close associates to each other and there had been ill-feelings between PW-1 and the accused in their village with regard to dispute over the issue that one Balakrishna (PW-7) the relative of the accused kidnapped the sister of Venkata Narasaiah (PW-1) and one day prior to the occurrence with the active assistance of A-2 and PW-7 Balakrishna married her at Tirupati against the wishes of PW-1. PW-1 and others searched for her in the surrounding villages and PW-1 and the woman folk abused the persons who supported the kidnap of LW-11. At about 5 p.m. on the day of the occurrence A-1 also abused PW-1 and the accused being aggrieved by the acts of PW-1 and the deceased Yesuri Narasimhulu, bore grudge against them and were waiting for opportunity to kill them. On 15-7-1995 at 6 p.m. while the deceased and PW-1, PW-2, LW-3 and PW-3 were proceeding to the house of Konduri Sivaraju (LW-13) to report about the audacity of the accused and as soon as they reached near Elementary School situate on the outskirts of Isukapalli village, all the accused formed themselves into unlawful assembly with the common object of killing PW-1 and his men and in pursuance of their common object suddenly came upon PW-1 and the deceased, armed with stout bamboo sticks and challenged them as "Yendi Raa Appudu Matladevi, Ippudu Matladandi Raa". A-1 instigated to attack PW-1 and the deceased. A-1 dealt a blow with a stout stick on the head of the deceased. A-5 beat with a bamboo stick on the back of the deceased. A-3 and A-4 dealt blows with sticks on the head of PW-1 and with the result PW-1 sustained bleeding injuries. PW-2, LW-3 and PW-3 who saw this occurrence raised cries and the accused left from the scene of offence and they brought PW-1 and the deceased to Government Hospital, Rajampet and got them admitted. The deceased died on 16-7-1995 at about 2 a.m. in S.V.R.R. Hospital, Tirupathi during the course of treatment. PW-1 Venkata Narasaiah gave statement before the police in Government Hospital, Rajampet about the incident. The Assistant Professor of Forensic Science Laboratory, Tirupati who conducted autopsy on the dead body of the deceased opined that the deceased would appear to have died of hemorrhage due to multiple injuries. The Medical Officer who examined PW-1 opined that injury No.1 is grievous in nature and on 15-8-1995 at about 5 p.m. police arrested the accused at Adapur bus stop on Nandalur-Tangatur road and sent them for remand and that after completing the investigation filed charge sheet.
6. The learned Judge after framing the Points for consideration discussed the evidence available on record and convicted the accused under the charges already referred to supra.
7. Out of eleven witnesses examined by the Prosecution, PW-1 is the victim and an eye witness of the offence. PW-2, 3 and 6 are also eye witnesses to the offence. PW-4 is the Doctor who examined the deceased and PW-1 on the requisition by the police and issued medical certificates in that regard. PW-5 is another doctor who conducted post mortem examination over the dead body of the deceased. PW-7 is the person who eloped with one Ganga Devi, sister of PW-1 with the help of Penchalaiah who is the brother of A-1 and A-3 which is the root cause and motive for the accused to beat PW-1 and the deceased. PW-8 is a panch witness for the scene of offence and seizure of material objects and also for inquest panchanama. PW-9 is the Head Constable who received the death intimation of the deceased under Ex.P-9. PW-10 is the Investigation Officer who reduced the statement of PW-1 into writing, examined the witnesses, conducted panchanama of inquest, panchanama of seizure of sticks and also drew a rough sketch of the scene of offence. PW-11 is another Investigating Officer who examined PW-7 and filed the charge sheet.
8. PW-9, the Head Constable just deposed that on 17-7-1995 he was S.H.O. Mannur Police Station and he received death intimation of the deceased E. Narasimhulu from Alipiri Police Station at 2.10 P.M. and after the S.I. returned to the Police Station he handed over the same to the Sub-Inspector. In the light of his chief-examination this witness was not corss-examined.
9. PW-1 deposed about the details. PW-1 had stated that the accused having assaulted the deceased with sticks killed him about two years and eight months ago and one day prior to the occurrence his younger sister Gangadevi was taken away by one Balakrishna with the support of one Penchalaiah. A-1 and A-3 are younger brothers of Penchalaiah and the accused are inter-related. He searched for his sister and Balakrishna in the neighbouring villages on the next day, but could not trace them and returned to the house. While staying at the house this witness, his mother and wife abused Penchalaiah and also Balakrishna for the heinous act committed by them and in the meanwhile the accused who are relatives of Penchalaiah came there and both of them exchanged words and it was a wordy quarrel. The time was 5 p.m. at that juncture and with a view to complain to the Village President Sivaraju about the acts of the accused, PW-1, the deceased, PW-2 Narsaiah, PW-3 Kumar, LW-3 Harikrishna were proceeding to his house and when they were proceeding near a turning adjacent to the school in the village, they saw A-1 holding a big stout stick and the other accused holding small bamboo sticks. All the sticks were solid ones and on seeing them A-1 instigated the other accused asking them to attack saying that they were going to the Village President to make a complaint and so saying A-1 dealt a blow with the stick on the head of the deceased, A-2 also dealt another blow with a stick on the head of the deceased. The deceased fell down with bleeding injuries and after he fell down A-5 beat him with a stick on his body and A-3 beat PW-1 with a stick on his head. PW-1 further deposed that he fell down and he sustained fracture of the skull. This witness, PW-1, again says that he only received bleeding injury on the head. A-4 beat him with a stick on the right side of the stomach. PW-1 further deposed that the persons who were along with him raised cries and the accused having thrown the stones ran away from the place. The said incident took place at about 6 p.m. PW-1 and the deceased were taken to Hospital by PW-3 and PW-2 respectively. After carrying them for some time on shoulders they placed them on a double bullock cart and had taken them to Government Hospital, Rajampet where they were treated by the Doctor and he narrated about what had happened and Ex.P-1 is the statement and LW-2 Narsaiah also signed it as a witness and he identified his signature in Ex.P-1. After mid-night the S.I. of Police again examined PW-1, the deceased Narsaiah and recorded their statements. PW-1 also deposed that he can identify the sticks used by the accused if they are shown to him and he identified M.Os.1 and 2. PW-1 was cross-examined at length and no doubt he admitted that he had not given report to police against Balakrishna and Penchalaiah and denied the suggestion that he had not stated either in Ex.P-1 or in Section 161 Cr.P.C. statement that A-5 beat him and the deceased. PW-1 further deposed that when he intervened to save the deceased he was also beaten and that the deceased, in all, sustained three injuries and he did not pick up running away by seeing the attack of all the accused. PW-1 further deposed that A-1 gave one blow by lifting two hands with stick in his hands on the head of the deceased. The deceased fell down only after A-2 dealt another blow with a stick on his head. The blow dealt by A-1 fell on the right side on the head of the deceased and the blow dealt by A-2 also fell on the same place i.e., on the head of the deceased on the right side and PW-1 stated the said fact in Ex.P-1 and the injury became a big one due to two blows. This witness also deposed that he received two blows resulting in two injuries and he was beaten with all force and when he fell down after receiving the first blow, A-4 beat him and no doubt certain suggestions were put that due to enmity this case had been foisted but the same had been denied.
10. PW-2 also had supported the version of PW-1 and also identified MO-3, MO-1 and MO-2. This witness was cross-examined at length and the suggestions put to this witness also had been denied. PW-3 also had deposed about the incident which had happened on the fateful day and the cause for the incident. This witness also supported the version of the prosecution in substance well corroborating the evidence of PW-1 and PW-2 and he was cross-examined at length. Ex.D-1 was marked through this witness to the effect that he had not stated before the Police that A-3 and A-4 beat PW-1 with sticks on his head as in Ex.D-1. Except this contradiction nothing serious had been elicited in the evidence of PW-3. PW-4, Dr. Sreenivasulu, deposed that he had examined PW-1 Venkata Narasaiah and found the following injuries :
"A lacerated injury over the frontal parietal region 2 cm x 1/2 cm skin deep, case referred to S.V.R.R. Hospital, Tirupathi.
X-Ray opinion : Received M.L.C.1394/3854/18.7.95 stating fracture of right frontal bone, extending posteriorily; age of wound 2 to 4 hours.
Opinion : Injury No.1 is grievous in nature and is caused with blunt object."
11. Ex.P-2 is the wound certificate issued by him. On the same day he had examined the deceased at about 9.30 P.M. and found the following injuries :
"A lacerated injury over the right frontal region 3 x 1/4 cm. Bone deep, pupils dilated, sluggishly reacting to light."
12. The case was referred to S.V.R.R. Tirupathi for opinion. Ex.P-3 is the true copy of the accident register certified by Dr. C.V. Padmavathi, Deputy Civil Surgeon, Rajampet and the injuries were opined to be possible to be inflicted with a blunt object like stick. This witness was cross-examined at length.
13. PW-5, the Assistant Professor of Forensic Medicine, Medical College, Tirupathi who had conducted the post mortem examination found the following ante mortem injuries :
1. Sutured wound of 3 cm. over the right fronto temporal area 3 in tact white thread sutures present.
2. Abrasion of 0.5 x 2 cm. over middle of left side of the neck.
3. Abrasion of 0.5 x 2 cm. over outer aspect of left lower leg.
4. Abrasion of 2 x 1 cm. over front of left knee.
Internal wounds :
1. Contusion of 5 cm. x 12 cm. of scalp in frontal and left temporal areas.
2. Diastic fracture of 17 cm. of coronal suture.
3. Subdural haematoma of 10 x 10 cm. over left frontal and temporal lobe.
4. Brain 1250 Gms. Diffuse contusion over left cerebral hemisphere. Cut section multiple discrete petechiol hemorrhage seen all over the brain matter.
5. Left dome of disphragm showing a rent of 6 x 3 cm. in its back portion in the muscular layer, margins are pulpy with brownish black discoloration.
6. Stomach is showing a rent of 12 x 7 cm. in its fundal part, margins are pulpy with brownish black discoloration. 150 gms. Of partly digested food material with mucous like thing seen in the stomach and in the peritoneum left to the stomach.
7. Liver 1100 gms. 2 x 11 x 2 gms. Of left lobe is contused, capsule is dull.
8. Left kidney 100 gms. Cut section showing multiple contusions of pin head size to 0.5 cm. diameter all over.
14. The deceased died at S.V.I.M.S. on 16-7-1995 at 6.05 P.M. and the cause of death to the best of his knowledge and belief was due to multiple injuries. Ex.P-4 is the post mortem certificate issued by him and he opined that any blunt weapon would have caused the head injury. The head injury must have been caused by two blows since the injuries are apart from each other on the right side and left side of the head. This witness was cross-examined.
15. Thus the evidence of PW-1 well supported by the evidence of PW-2 and PW-3 and also the medical evidence had well explained the two injuries. No doubt, submissions at length were made by the Counsel representing the appellant on this aspect and on this discrepancy in the version of the prosecution. PW-6 also had well supported the version of the prosecution and he had identified the sticks. This witness had corroborated the evidence of PW-1, PW-2 and PW-3. PW-7 deposed about the incident relating to Gangadevi's elopement and this witness also deposed about Ex.P-5 photo, Ex.P-6 negative and Ex.P-7 bill by the photographer and he came to his village after knowing about the death of the accused. This witness is the person with whom Gangadevi eloped and he deposed about his love affair. This witness also was cross-examined at length. PW-8 is the V.A.O. of Tallapaka who had deposed about seizure of blood stained earth and three sticks from the scene of offence in his presence and one Sivaraju under the cover of Ex.P-7 mahazar and he also participated in the inquest over the dead body of the deceased. Ex.P-8 is the inquest report which contains his signature.
16. PW-10 is the Sub-Inspector who had deposed about the details of investigation through whom Ex.D-1 was proved to the effect that PW-1 stated as in Ex.D-1 before this witness. PW-11 is the Inspector of Police who had deposed about all the details of investigation and filing charge sheet.
Ex.P-1 reads as hereunder :
"My native village is Isukapalli Harijana wada of Rajampet mandal. I live by doing cooli work. Yesterday i.e., on the night of 14-7-95 at about 7 p.m. my sister Gangadevi was taken away by Balakrishna who is the son of Gevuri Atnaiah of his village with the assistance of Penchalaiah, son of Rasuri Narasimhulu of his village, without informing to the elders. On knowing the same, today i.e., 15-7-95 we searched for my sister in the surrounding villages, but she was not traced. Again in the evening at about 5 p.m. we in our village for word say scolded the persons who took away my sister. For that Venkataramudu the brother of above said Penchalaiah came in support and scolded us in turn. For that we both groups scolded each other. To inform this incident to Isukapalli Sivaraju, myself, my brother Hari Krishna, my relatives Yesuri Narasimhulu @ Pottodu, Mare Kumar, Asadi Narasaiah started together from the houses in the village and reached elementary school at 6'O clock. There the above Venkataramudu, his relatives Rasuri Penchalaiah @ Bujjodu, Rasuri Subbanarasaiah, Rasuri Palaiah, Rasuri Narasimhulu son of Rasuri Penchalaiah way laid there with sticks in their hands and Venkataramudu scolded "what you talked then, now you talk" and Bojjodu scolded "kill these sons, where they are going". Then Bojjodu, Venkatramudu both beat on the head of Pottaiah with the sticks on their hands. He fell on the ground with bleeding injuries. Meanwhile Subbanarasaiah, Polaiah beat me with sticks on my hand and caused bleeding injuries. In the mean time the persons accompanying us raised cries, the above persons went away on seeing our people coming. Asadu Narasaiah, Mare Kumar who are coming with us took us to Rajampet hospital and joined us. So, I am narrating what had happened.
Read over by me and is written correctly.
Sd/-
Y. Venkata Narasaiah"
17. The non-mentioning of the specific attack by A-5 in Ex.P-1 had been highlighted. Strong reliance was placed on the decision of a Division Bench in SIDDAPURAM SIVA REDDY Vs. STATE OF A.P.,1995 Crl.L.J. 701 where two accused persons inflicted one stick blow each on the head of the deceased during quarrel and one of the injuries proved fatal and who caused the fatal injury was not proved and the injuries caused on other eye-witnesses by accused by same sticks were of simple nature it was held that it cannot be said that the accused intended to cause death of the deceased and conviction under Section 302 IPC was altered to one under Section 325 r/w. Section 34 IPC. Reliance also was placed on NINAJI RAOJI V. STATE OF MAHARASHTRA, it was held :
"There was no reliable evidence on the record to prove whether the fatal blow on the head of the deceased was caused by A or B. Their intention was also not to cause injury to the son of the deceased and not the deceased himself. The other blows did not fall on any vital part of the body, and, in the absence of evidence to establish that their common intention was to cause death, it appears that the accused had the common intention of causing grievous injury with the lathi and the "khunt". They could therefore be convicted of an offence under Section 325 r/w. Section 34 IPC and not Section 302 r/w. Section 34 IPC".
18. Reliance also was placed on another decision of the Apex Court in BALAK RAM Vs. STATE OF U.P., .
19. From the evidence available on record it is clear that the whole object of the accused was most probably to prevent PW-1, the deceased and others from complaining the episode to the Village President. The very version of the prosecution is that A-1 instigated the other accused asking them to attack saying that they were going to the Village President to make a complaint and A-1 dealt a blow with stick on the head of the deceased and A-2 also dealt another blow with a stick on the head of the deceased and after he fell down with bleeding injuries A-5 beat him with a stick on his body. PW-1, PW-2, PW-3 and PW-6 had well deposed about the incident and though there are certain minor discrepancies the learned Judge had dealt with these aspects in detail. In the light of the evidence that two blows had been given and one injury alone was found on the deceased, but the medical evidence had clarified the same, in such circumstances, it is no doubt true that that it is doubtful which of such blows had been fatal which led to the collapse of the deceased, but the fact remains that all the accused had assembled at the spot with the common object of at least preventing PW-1 and the deceased and others from further proceeding to the house of the Village President for the purpose of making a complaint. Hence, in the light of the evidence available the ingredients of unlawful assembly, no doubt, are satisfied. Further even taking into consideration the weapons used in the commission of the offence and the injuries caused, at the best it can be said that at the instigation of A-1, A-1 dealt a blow by himself with a stick on the head of the deceased and A-2 dealt another blow as directed by A-1 and A-5 also beat him with a stick and A-3 beat PW-1 with a stick on his head and A-4 beat PW-1 with a stick on his right side stomach. In the light of the medical evidence available on appreciation of the over all facts, the accused who are the members of the unlawful assembly have committed the offences under Sections 148 and 326 r/w. Section 149 IPC. In the facts and circumstances, the conviction and sentence under Section 304 Part-II IPC cannot be sustained and accordingly the conviction and sentence imposed as against the appellants/A-1 to A-5 under Section 304 Part-II IPC and also under Section 304 Part-II r/w. Section 149 IPC are hereby set aside and being members of unlawful assembly for voluntarily causing grievous hurt by dangerous weapons or means, the appellants/accused are convicted under Section 148 IPC and sentenced to undergo Rigorous Imprisonment for a period of 2 years and to pay a fine of Rs.500/- each, in default to suffer Simple Imprisonment for a period of one month and A-1 to A-5 are further convicted for the offence under Section 326 r/w. Section 149 IPC and sentenced to Rigorous Imprisonment for a period of three years and also to pay a fine of Rs.1000/- each in default to undergo Simple Imprisonment for a period of two months. Both the sentences shall run concurrently.
20. Thus the Criminal Appeal is partly allowed to the extent indicated above. The appellants to serve the rest of the sentences.