Andhra Pradesh High Court - Amravati
Gedala Ganeswara Rao vs The State Of Ap on 14 June, 2022
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL No.1622 OF 2018
AND
TRANSFER CRIMINAL APPEAL No.1 OF 2021
COMMON JUDGMENT :
Appellant in Criminal Appeal No.1622 of 2018 is A.1, and the appellants in Transfer Criminal Appeal No.1 of 2021 are A.2 and A.3, in Sessions Case No.77 of 2011 on the file of the Assistant Sessions Judge, Vizianagaram. The learned Assistant Sessions Judge framed charges- for the offence punishable under Section 307 of the Indian Penal Code, 1860 (for short, 'IPC') against A.1; for the offence punishable under Section 307 IPC against A.2, and for the offences punishable under Sections 307 and 353 read with 34 IPC against A.1 to A.3.
2. The learned Assistant Sessions Judge, vide judgment dated 19.02.2018, found A.1 and A.2 not guilty of the offence punishable under Section 307 IPC and accordingly acquitted them of the said charge, and found A.1 to A.3 guilty of the offences punishable under Sections 307, 353 read with 34 IPC and accordingly convicted them of the said offences. As A.1 was absent on the date of pronouncement of the Judgment on 19.02.2018, the learned Assistant Sessions Judge issued non-bailable warrant against him for his production, for hearing him with regard to quantum of sentence. After hearing A.2 and 2 A.3 with regard to quantum of sentence, the learned Assistant Sessions Judge sentenced them to undergo simple imprisonment for a period of seven years each and to pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of four months each, for the offence punishable under Section 307 read with 34 IPC, and further sentenced them to pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of four months each, for the offence punishable under Section 353 read with 34 IPC.
3. On 04.06.2018, the learned Assistant Sessions Judge heard A.1 with regard to quantum of sentence and sentenced him to undergo simple imprisonment for a period of seven years and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of four months, for the offence punishable under Section 307 read with 34 IPC, and further sentenced him to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of four months, for the offence punishable under Section 353 read with 34 IPC.
4. Challenging the convictions and sentences recorded against him, A.1 preferred Criminal Appeal No.1622 of 2018 before this Court. A.2 and A.3 preferred Criminal Appeal No.11 of 2018 on the file of the learned 3 District and Sessions Judge, Vizianagaram, challenging the convictions and sentences recorded against them. The said appeal was withdrawn from the file of the learned Sessions Judge and transferred to the file of this Court for hearing along with Criminal Appeal No.1622 of 2018, as per order dated 24.09.2019 in Transfer Criminal petition No.33 of 2019, and renumbered as Transfer Criminal Appeal No.1 of 2021.
5. Brief facts of the case are as follows:
On the instructions of the Deputy Superintendent of Police, Anakapalli and the Inspector of Police, Anakapalli town, on 23.04.2010, P.W.1-Sub Inspector of Police along with P.W.2 and others, went to arrest A.1, who was absconding, in connection with crime No.8 of 2010 of Sabbavaram police station registered for the offences punishable under Sections 447, 506 and 323 IPC. They went to house of A.1 at Vizianagaram at about 1.00 PM on that day and found A.1 in the house. A.1 identified P.W.1 and others as police personnel and instigated his pet dogs i.e. Rotwillers, which are two in number, against them with a view to kill them and assaulted through the said dogs from discharging their duties. P.W.1, who was leading the team, was attacked by the dogs. But, P.W.1 narrowly escaped and got down from the steps of first floor of house 4 of A.1. P.W.1 noticed the Inspector of ACB by name Satyanarayana at the ground floor of house of A.1. On enquiry, the Inspector of ACB informed that he came there for valuation of assets of A.1 in connection with ACB case against A.1. The Inspector of ACB requested P.W.1 to stop their investigation in view of their investigation in connection with ACB case against A.1. After taking instructions from the superiors, P.W.1 returned to Anakapalle by posting a Head Constable and two constables for surveillance at the house of A.1.
On 24.04.2010 at about 12.00 noon, P.W.1 went to the house of A.1 along with P.W.2 and another. P.W.1 came to know that A.1 was absconding from the early hours of 24.04.2010. P.W.1, with a view to enquire the matter, was trying to enter into house of A.1, along with his staff, and when they reached entrance gate of house of A.1, they found A.2, who is wife of A.1, present inside the house. When P.W.1 tried to enquire with A.2 about A.1, she instigated two pet dogs to attack them with a view to obstruct them from discharging their legitimate duties. It is alleged that one of the dogs bit P.W.1 and caught hold his blue colour jeans pant and tore it away. Mean while, A.2 informed A.3 over phone about the incident. A little later, P.W.1 received a phone call to his mobile number. The said phone number belongs to A.3, who is none other son of A.1 5 and A.2. It is alleged that A.3 abused P.W.1 and threatened him to kill, on phone. It is alleged that A.3 shouted on P.W.1 that he would approach Human Rights Commission against them.
On 24.04.2010 at about 7.30 PM, P.W.6 received a report from P.W.1, and on the strength of the said report, registered a case in crime No.82 of 2010 of II Town police station, Vizianagaram for the offences punishable under Sections 353, 307 read with 34 IPC and submitted original FIR to the court concerned. Ex.P3 is the original FIR. P.W.6 examined P.Ws.1 to 4 and others and recorded their detailed statements. On 25.04.2010, P.W.6 inspected the scene of offence and secured presence of P.W.5 and another and prepared rough sketch of the scene of offence in their presence. Ex.P4 is the rough sketch prepared by P.W.6. P.W.6 observed two Rotwiller black colour dogs and took photographs of presence of the dogs at the scene of offence. On the same day, at about 12.30 hours, P.W.6 along with women constable, visited house of A.1 and arrested A.2. After completion of investigation, P.W.6 filed charge sheet, which was taken on file as P.R.C.No.5 of 2011 on the file of the Additional Judicial Magistrate of First Class, Vizianagaram.6
6. On appearance of the accused, copies of case documents, as required under Section 207 Cr.P.C., were furnished to the accused, and thereafter, the case was committed to the Court of Session. On committal, the learned Sessions Judge numbered it as S.C.No.77 of 2011 and made over the learned Assistant Sessions Judge for disposal in accordance with law.
7. The substance of charge against A.1 is that on 23.04.2010 at about 1.00 PM, P.W.1 went to house of A.1, which is situated Poolbagh Colony, Vizianagaram, along with P.Ws.2, 3 and others, and on seeing them, A.1 identified them as police personnel, commanded his two black ferocious dogs to attack them with an intention to kill them, and that one of the dogs caught left leg of P.W.1 and caused small hole injury and they escaped from the dogs and went away and he is liable for punishment for the offence punishable under Section 307 IPC.
The substance of charge against A.2 is that on 24.04.2010 at about 12.00 noon, when P.W.1 and other police personnel went to house of A.2, on seeking them, A.2 commanded her dogs to attack the police party with an intention to kill them and she is liable for punishment for the offence punishable under Section 307 IPC. 7
The substance of charge against A.1 to A.3 is that on 24.04.2010 in noon time, when P.W.1 and his staff went to their house, at the instigation of A.2, A.3 scolded the police personnel with the cell phone to the cell phone of P.W.1 and threatened them with dire consequences that they would kill the police personnel by commanding the dogs and also would file false report before the Human Rights Commission against P.W.1 and others and that A.1 to A.3 assaulted and threatened P.W.1 and his staff members with common intention attempted to kill and caused obstruction to perform their duty, and that they are liable for punishment for the offences punishable under Sections 307 and 353 read with 34 IPC.
The accused pleaded not guilty and claimed to be tried.
8. In support of its case, the prosecution examined P.Ws.1 to 6 and marked Exs.P1 to P5 and M.O.1. After completion of the prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses, to which they denied. No oral evidence was adduced on behalf of the accused.
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9. The learned Assistant Sessions Judge, vide the impugned judgment, convicted and sentenced the appellants/A.1 to A.3 as stated supra. Challenging the same, the present Criminal Appeals came to be filed.
10. Learned counsel for the appellants strenuously contended that the independent witness, who is examined as P.W.5, did not support the case of prosecution and he was treated hostile by the prosecution. It is the further submission of the learned counsel that there are several inconsistencies in the evidence of prosecution witnesses and the prosecution failed to establish that any incident occurred on 23.04.2010 in the house of A1. It is his further submission that the prosecution witnesses, who were allegedly injured, were not examined by Doctor and no medical evidence is forthcoming on behalf of the prosecution; that the present case is a counter blast to the case filed by A.2 against P.W.1; that no photographs of the alleged dogs were produced in evidence though P.W.6, investigating officer, deposed that they took photos of presence of two Rotwiller black colour dogs at the scene of offence; that there is no plausible forthcoming from the side of the prosecution for their non-production, and raised various other grounds. Hence, he prayed to set aside the convictions and sentences recorded against the appellants/ 9 A.1 to A.3 in the impugned judgment and acquit them of the said offences.
11. Per contra, learned Assistant Public Prosecutor appearing for the State contended that the prosecution is able to bring home guilt of the appellants/A.1 to A.3 that knowing pretty well that the prosecution witnesses are police personnel, who have come to the house of the accused for the purpose of investigation, the accused caused obstruction to them in discharge of their duties and instigated their dogs to attack the police personnel.
12. Now, the point that arises for consideration of this Court is whether the prosecution is able to bring home the guilt of the appellants/A.1 to A.3 for the offences alleged them beyond reasonable doubt ?
13. This Court perused the record. According to P.W.1, he and others went to house of A.1 to arrest A.1 in connection with crime No.8 of 2010 of Sabbavaram police station on 23.04.2010, A.1 identified them as police personnel and instigated his pet dogs 'Rotwillers', two in number, black in colour, with a view to kill them and assaulted them through the said dogs in discharge of their official duties. Admittedly, going by the evidence of P.W.1, absolutely no incident had taken place on the said date i.e. 23.04.2010, for the reason that when P.W.1 was coming 10 down, he found Inspector of ACB and the question of he, narrowly escaping from the dogs, would not arise. Further more, even going by the evidence of P.W.1, the Inspector of ACB requested P.W.1 and others to stop investigation in view of the fact that their investigation in connection ACB case as against A.1 was going on. P.W.1, on taking instructions from his superiors, left the place on that day. Therefore, it can be safely inferred that no incident had taken place on 23.04.2010.
14. On 24.04.2010 at about 12.00 noon, P.W.1 went to the house of A.1 along with P.W.2 and others and found that A.1 was absconding. When P.W.1 and others were entering into the house of A.1, it is alleged that A.2 instigated two pet dogs with a view to obstruct them from discharging their duties. One of the dogs bit P.W.1 and caught hold of his blue colour jeans pant and tore it away. Thereafter, A.2 informed A.3 about the incident over phone. P.W.1 received a call to his mobile number from 8008000523. It is evident from the deposition of P.W.1 that at the time of giving the evidence, it is observed the learned counsel for the defence as well as the trial Court that P.W.1 had written the phone number on his left palm. A.3 is alleged to have abused and threatened to kill P.W.1, over phone.
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15. In cross-examination of P.W.1, he categorically admitted that he did not mention in Ex.P1 that there was a warrant of arrest against A.1 carried by him at the time of visiting house of A.1. At the time of going to arrest A.1, P.W.1, who is police personnel, was not in his uniform and was wearing casual clothes. In cross-examination, P.W.1 also admitted that M.O.1 is thick jeans pant and he did not receive any bite injury. P.W.1 also admitted that when he enquired about A.1, mean while, A.2 instigated the dogs against them. He did not mention the same before the police. P.W.1 has not made any mention in Ex.P1, particularly that on 24.04.2010, that there was a dog bite and M.O.1 was torn. It is also admitted by P.W.1 in cross- examination that it is not mentioned in Ex.P1 that they informed A.1 about their identity and the purpose of their visit to the house of A.1, and that A.1 identified them as police personnel on 23.04.2010. P.W.1 was involved in an ACB case and it was pending by the date of his deposing before the trial Court. A suggestion was made to P.W.1 to the effect that on 24.04.2010, P.W.1 visited house of A.1, and by that time A.2 was present and that P.W.2 enquired about A.1 and caught hold tuft of hair of A.2, dragged her to the ground floor and misbehaved with her and outrage her modesty in the presence of local people, and that local people rescued A.2 from his hands and A.2 gave a report 12 against P.W.1 and the same was registered as a criminal case and as a counter blast to the said case, P.W.1 filed the present case as against A.1 to A.3. P.W.1 denied the suggestion.
16. P.W.2, who worked as Sub Inspector of Police, Anakapalle rural police station at the relevant point of time of the incident, deposed that as per the directions of his superior officers, himself, P.W.1 and others went to house of A.1 in Vizianagaram on 23.04.2010 and noticed A.1 in the first floor of the house, and immediately, A.1 instigated his pet dogs (Rotwillers) to kill them, and one of the dogs caught hold of his left side of pant and thereby the pant was torn. It is his further evidence that again, on the next day i.e. on 24.04.2010, himself and others went to the house of A.1 at about 12.00 noon, and A.2 instigated two pet dogs to attack him and others, and that they escaped from the said pet dogs and stated that no injury was caused on 24.04.2010.
17. P.W.3 also deposed on the same lines as that of P.W.2.
18. P.W.4 is an independent witness, who is friend of one Anil Kumar, who was cheated by A.1. He deposed that he went along with police personnel on 24.04.2010 and learnt that A.1 was absconding. Meanwhile, A.2 13 instigated her pet dogs on police personnel. The dogs caught hold of pant of P.W.2 and thereby pant of P.W.2 was torn. Thereafter, A.3 called over phone and abused P.W.1 in filthy language.
19. This Court, on perusing the evidence on record, found that there is absolutely no untoward incident said to have taken place on 23.04.2010. On the first instance, P.W.1 states that they narrowly escaped from the pet dogs and got down from the house of A.1. Thereafter, on 24.04.2010, once again, the police personnel went to the house of A.1, and on instigation of A.2, the dogs attacked P.Ws.1 and 2 and one of the dogs had bitten P.W.1 and caught hold of blue colour jeans pant and tore it away. There is absolutely no recovery made to come to the conclusion whether pant was torn or not. P.W.1 was not referred to Doctor and no Doctor has been examined by the prosecution to prove the case that the incident is said to have been taken place on the said date. On a perusal of the evidence of P.W.1 would also go to show that P.W.1 had written mobile number of A.3 on his palm and he was reading out the number by looking at the palm while giving evidence. The same was pointed out by even the trial Court. On a reading of the entire evidence would make it clear that the incident did not happen as put forth by the prosecution. The present complaint seems to have filed 14 been filed as a counter blast to the case which has been filed by A.2 against P.W.1.
20. The evidence of P.W.2 also goes to show that the incident did not take place as put forth by the prosecution for the reason that if he was attacked by one of the Rotwiller dogs and when he was injured because of the dog bite, obviously, he would have been taken to a Doctor. But, the prosecution version is silent in respect of the treatment taken by P.W.1 or P.W.2. It is for that reason, there is any amount of ambiguity to come to the conclusion whether the said incident is said to have taken place as suggested by the prosecution. Admittedly, no photographs of the Rotwiller dogs have been marked to conclude whether the said dogs were present in the house or not. Further, a perusal of the evidence also goes to show that there were CC TVs around the house of A.1. There is no reason why the investigating officer has not seized CCTV footage to arrive at the conclusion that the incident had taken place, as suggested by the prosecution. There are number of inconsistencies in the evidence of P.Ws.1 and 2, which go to the root of the case, whether the incident had taken place in the manner suggested by the prosecution. In view of the same, this Court is not satisfied with the reasoning given by the court below and the convictions and sentences recorded by the trial Court are liable to be set aside. 15
21. In the result, the convictions and sentences recorded against the appellants/A.1 to A.3 for the offences punishable under Sections 307 read with 34 and 353 read with 34 IPC in the impugned judgment are set aside. The appellants/A.1 to A.3 are found not guilty of the offences punishable under Sections 307 read with 34 and 353 read with 34 IPC and accordingly acquitted of the same. The fine amounts, if any, paid by the appellants/A.1 to A.3 shall be refunded to them.
22. The Criminal Appeals are, accordingly, allowed. Miscellaneous petitions pending, if any, in the Criminal Appeals stand disposed of.
__________________________________ JUSTICE K.SREENIVASA REDDY 14.06.2022 DRK 16 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT in CRIMINAL APPEAL No.1622 OF 2018 AND TRANSFER CRIMINAL APPEAL No.1 OF 2021 14.06.2022