Telangana High Court
Boddolla Gangadhar , Jangu Gangadhar ... vs The State Of Telangana on 27 March, 2025
THE HONOURABLE SRI JUSTICE K.SURENDER
AND
THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL APPEAL No.242 of 2020
JUDGMENT:(Per Hon'ble Sri Justice K.Surender) This Criminal Appeal is filed by the appellants/accused Nos.1, 2, 3, and 5, aggrieved by the judgment dated 09.01.2020, in S.C.No.323 of 2013, on the file of the VII Additional District and Sessions Judge, Nirmal, whereby the appellants/accused Nos.1, 2, 3, and 5, were convicted for the offences punishable under Sections 147, 148, 302, 307, and 324 read with Section 149 of the Indian Penal Code (for short 'IPC').
2. Heard learned counsel for the appellants and Sri Arun Kumar Dodla, learned Additional Public Prosecutor for respondent-State. Perused the record.
3. PW.1 lodged a complaint/Ex.P1 on 28.06.2011 stating that he, the deceased (Bodolla Mukundas), PW.2, PW.3, and Mr.Gurle Babu, had gone to the Revenue Divisional Officer in Nirmal, and while returning from the RDO Court in the Auto of PW.5, around 07.00 P.M., these appellants, along with 13 2 others, allegedly attacked them with an intention to kill them. As a result of the assault the deceased succumbed to his injuries, and PWs.1 to 4 also sustained injuries. A written complaint was given to the police at 09.00 P.M., and the said complaint was registered by PW.18, and the investigation was handed over to PW.19. PW.19 went to the scene of offence and seized the control earth along with other incriminating material objects. The dead body of the deceased was photographed, and the inquest proceedings were concluded in the mortuary at Government Civil Hospital, Nizamabad. Accused Nos.1 to 17 were arrested on 03.07.2011, i.e., 5 days after the accident. On the basis of the confessions of the accused, seizures were effected from these appellants. The material objects seized at the instance of these appellants are MOs.6 to 10, recovered from accused Nos.1 to 5, respectively.
4. The learned Sessions Judge, having framed charges under Sections 147, 148, 302, 307, and 324 read with Section 149 of IPC against the accused.
5. The learned Sessions Judge, having considered the evidence placed on record by both the prosecution and the defence, found that the appellants were the persons who 3 assaulted the deceased and the other witnesses, resulting in the death of the deceased and injuries to PWs.1 to 4. Mainly on the basis of the recoveries that were affected at the instance of these appellants, the learned Sessions Judge found that these appellants were guilty under Section 302 of IPC for the murder simpliciter and all the other accused were acquitted.
6. PW.1, the de facto complainant/victim, in his statement before the trial Court, narrated that accused No.1 beat the deceased, while accused Nos.4, 5, 8, 11, and 12 also beat the deceased and PW.1. PW.2 stated that all the accused dragged the deceased and PWs.1 to 4 out of the auto and attacked them with axes and sticks. PW.3 stated that he was attacked by accused Nos.1, 3, 4, 5, 7, and that the other accused beat them and the deceased with sticks and axes. PW.4, without attributing any specific overt-acts, stated that all the accused beat them with sticks.
7. PW.5, auto driver in which the deceased and the injured were travelling, stated that only the deceased, PW.1, and another individual A.Pundaleek-DW.2, were traveling in the Auto. The prosecution declared PW.5 as hostile and cross- examined him. Except for suggesting that PW.5 had made 4 statements in Ex.P2, which is his 161 Cr.P.C. statement, nothing substantial was elicited by the learned Public Prosecutor. PWs.6 and 7 speak about the incident; however, their evidence is hearsay. PW.8 did not testify about directly witnessing the incident. PW.9 is a photographer. PWs.10, 11, 14, 15, and 16 turned hostile to the prosecution case.
8. PW.7 is a Doctor who treated PWs.1 to 4, and he found the following injuries:
"During examination of PW1/M.Bhummanna I found the following injuries:
1. Swelling defaormity restricted movement of right fore arm, diagnosised as fracture of lower 1 1/3 of right ulna.
2. Abrasion with blood clot seen on right ear.
Among the above injuries 2 is simple and 1 is grievous in nature and inflected by blood force. Accordingly I issued Ex.P10 Injury certificate of PW1.
During examination of PW2/G.Madhava Rao I found the following injuries.
1. Evolution of tooth, central incisor with empty socket with fresh blood clot.
2. Evolution of lateral incisor on left side empty and bleeding socket.
3. Bruise about 3½ inches on right palm.
4. Laceration over right ear of 2X2, 5 cm., 5 All the above injuries are grievous in nature and inflicted by blunt force. Accordingly I issued Ex. P11 Injury certificate of PW2.
During examination of PW3/M.Sainathi found the following Injuries.
1. Laceration on left temporal area measuring 6x3.5x1.5 cm,
2. Laceration over right parietal area measuring 2x0.5x1 cm.,
3. Swelling tenderness deformity of restricted movement of left shoulder diagriosis as fracture left clavity.
Among the above Injuries 1 and 2 are simple and 3 is grievous in nature. Accordingly I issued Ex. P12 injury certificate of PW3.
During examination of PW4/G.Dattu I found the following Injuries:
1. Swelling deformity and restricted movements of upper 1/3 of left fore arm diagnosised as fracture of upper 1/3 of left ulna.
2. Communited fracture of proximal phalanx of right index fingeri
3. Laceration over occipital area with fresh blood. Among the above Injuries 2 and 3 are simple and 1 is grievous in nature. Accordingly I issued Ex. P13 Injury certificate of PW4."
9. According to PW.7/Doctor, the injuries received by the witnesses were possible due to a blunt force. In the cross-6
examination, PW.17 admitted that the injuries could have been caused by an accident. The Doctor who conducted the post- mortem, was not examined by the prosecution. However, the post-mortem report/Ex.P-18 was marked by the Investigating Officer (PW.20).
10. The defence of the appellants is that the deceased and the injured witnesses sustained injuries in an auto accident. Taking advantage of the accident, the appellants and others were falsely implicated on account of the pending disputes.
11. DWs.1, 2 and 3 are the witnesses who were examined in defence. All three of them stated that they saw a jeep coming from the opposite direction of the auto, which led to an accident in which some persons, including the deceased, received injuries. DW.1 stated that PW.1 and the deceased received injuries. DW.2 stated that PWs.2, 3, and 4 received injuries. However, PWs.2, 3, and 4 were traveling on a motor cycle.
12. The learned counsel appearing for the appellants would submit that the appellants were convicted for the offence under Section 302 simpliciter for murder and not with the aid of 7 Section 149 of IPC. Learned Sessions Judge had committed an error in relying on the seizures effected at the instance of the appellants as the basis for their conviction.
13. Learned counsel submitted that non-examination of the Doctor who conducted post-mortem examination has prejudiced the appellants. He relied on the judgment of this Court in Suntru Somi Reddy v. State of Andra Pradesh 1, and the relevant portion reads as follows:
"In the present case also, no such effort is made by the prosecution to examine another doctor, who could identify the signature and handwritings of the doctor, who conducted post- mortem examination and to prove the certificate Ex.P12 and also elicit the nature of injuries and implication of those injuries on the deceased. Marking of post-mortem certificate on the basis of purported consent said to have been given by the counsel, especially, when the accused has specifically denied every incriminating circumstance appearing against her including the medical evidence, is unjustifiable and it must be held that the prosecution has failed to establish the cause of death of the deceased by necessary medical evidence."
14. Learned counsel further relied on the judgment of the Hon'ble Supreme Court in the case of State of Haryana v. 1 2009 (1) ALD (Crl.) 429 (AP) 8 Mohd. Yunus and others 2, and the relevant portion reads as under:
"18. Although, appellant - Mohd. Jamil (A2) and Akhtar Hussain (A4) were tried separately and the statement of witnesses were recorded twice, firstly, in the trial against three accused persons (Mohd. Yunus (A1), Mohd. Jamil (A2) & Ghasita (A3)) and secondly, in the trial against Akhtar Hussain (A4), the fact remains that both the star witnesses of the prosecution namely Deenu (PW-7) and Ahmad (PW-8) are disbelieved in the second trial by clearly stating that their statements are contradictory, the facts are twisted and improvements are made. For trial under Section 302 IPC, if a witness is branded as untrustworthy having allegedly twisted the facts and made contrary statement, it is not safe to impose conviction on the basis of statement made by such witness. When there is an effort to falsely implicate one accused person, statement made by such an eyewitness cannot be relied without strong corroboration. Moreover, there is material on record proving previous enmity between the parties as mentioned in paragraph 25 of the trial court judgment."
15. The Hon'ble Supreme Court, in a case of murder when the State appealed against the acquittal of the accused, held that there was material placed on record indicating previous enmity between the parties, and there were inconsistent statements and improvements made by the witnesses. Accordingly, the finding of the acquittal was not interfered with. 2 2024(1)ALD(Crl.)196(SC) 9
16. In the complaint filed by PW.1, the names of the deceased and PWs.2 and 3 (injured) were mentioned. No specific overt- acts were attributed to any of the accused. However, it was consistently stated by PWs.1 to 4, and also mentioned in Ex.P1, that they were attacked with sticks and axes. However, no axe was seized from any of the accused.
17. Although a post-mortem of the deceased was conducted, the Doctor who conducted the post-mortem, was not examined. The non-examination of the Doctor, or any other Doctor, has caused prejudice to the defence of the appellants in the present facts of the case. The defence of the appellants is that the injuries resulted from an accident. However, given the admitted background of prior differences between the injured party and the appellants and other accused, a false case has been filed against them.
18. PW.17, a Doctor, who examined PWs.1 to 4, was neither suggested nor did he state that PWs.1 to 4 were attacked with axes. PW.17 did not even confirm that injuries could have been caused by sticks, such as MOs.6 to 10. The evidence of PW.17 confined to examining the injured-PWs.1 to 4 and issuing 10 wound certificates to that effect. As already stated, PW.17 admitted that the injuries sustained by PWs.1 to 4 were also possible due to an accident.
19. The learned Sessions Judge committed an error in convicting these appellants only on the basis of the seizure of sticks from their possession. No FSL report was filed to suggest that the blood of the deceased or any of the injured witnesses was found on any of the sticks. Further, MOs.6 to 10 were not shown to PW.17 in the Court to determine whether the injuries sustained by PWs.1 to 4 were possible by the sticks MOs.6 to
10. The Doctor who conducted the post-mortem examination, was not examined.
20. It is for the prosecution to prove beyond all reasonable doubt that the death of the deceased was homicidal in order to sustain a conviction under Section 302 of IPC. The accused lost the opportunity to cross-examine the Doctor who certified the death of the deceased. The reason for the cause of death is "cardio respiratory facture due to head injury, intra cerebral hemorrhage fractures of multiple bones of skull" 11
21. There is nothing in the FSL report or the nature of injuries to suggest that they were caused by axes or sticks, as claimed by PWs.1 to 4.
22. In the background of several discrepancies, which remain unanswered by the prosecution, we deem it appropriate to extend the benefit of doubt to the appellants. The conviction is liable to be set aside.
23. Accordingly, the Criminal Appeal is allowed by setting aside the judgment dated 09.01.2020 in S.C.No.323 of 2013, on the file of the VII Additional District and Sessions Judge, Nirmal. The appellants/accused Nos.1, 2, 3, and 5 are acquitted for the said offences and they shall be set at liberty, if they are not required in any other cases. The fine amount paid, if any, shall be returned.
Miscellaneous Petitions pending, if any, shall stand closed.
____________________ K.SURENDER, J _____________________ E.V.VENUGOPAL, J Date: 27.03.2025 12 THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL APPEAL No.242 of 2020 Dated 27.03.2025 PNS