Andhra HC (Pre-Telangana)
Kota Peda Nagesh vs State Of A.P. on 9 February, 1999
Equivalent citations: 1999(2)ALD383, 1999(1)ALD(CRI)519, 1999(1)ALT(CRI)364, 1999CRILJ2051
Author: Vaman Rao
Bench: Vaman Rao
ORDER
Motilal B. Naik, J
1. Accused No.1 in Sessions Case No.300 of 1994 on the file of the I Additional Sessions Judge, Krishna at Machilipatnam is the appellant before us.
2. Originally, he along with three others were tried for the following charges:
A1 to A4 : UnderSection447ofIPC A1 : Under Sections 302 and 324 IPC A2 to A4 : Under Seclion 302 r/w Sec. 34 IPC A2 : Under Section 324 of IPC A3 and A4 : Under Section 323 of IPC
The Court below on an appreciation of the entire evidence found Accused No.1 guilty of committing an offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for one year. However, the Court below acquitted Al from other charges while acquitting the other accused from all the charges levelled against them.
3. The substance of the charges against the accused is that on 3-6-1994 at about 6.30 p.m. at Pokkunur village, all the accused with a common intention, tresspassed into the premises of the deceased and caused injuries to him as a result, he succumbed to the said injuries on 16-6-1994 while undergoing treatment.
4. The case of the Prosecution, in a nut-shell, is as under:
PW1 is the daughter of the deceased. PW2 is the brother of PW1 and son of the deceased. PW3 is the wife of PW2. PW4 is the daughter of the deceased's brother. There were disputes between the deceased and the accused with regard to a house site and the accused were claiming rights over the same. On 3-6-1994, after sunset and at the time of taking meals, when the deceased was in the house, A1 to A4 went to the house of the deceased and abused the inmates in vulgar language following which the deceased came out and asked the accused as to why they were using such vulgar language against his family members. At that stage, Al and A4 beat the deceased with a stick on his head, A2 folded the hands of the deceased and the deceased fell down on the ground when A2 kicked him. A3 twisted the leg of the deceased. At that time, PWs.l to 3 and Ratnamma who is the sister-in-law of PW1 intervened. Then A2 beat PW1 on her head with a stick and when PW2 intervened, Al beat PW2 with a stout stick. When Ratnamma intervened, A3 beat her. PWs.4 to 6 witnessed the incident. After committing the offence, all the accused ran away. Thereafter, the deceased and the injured were taken to Chandralapadu Police Station. PW14 - Assistant Sub-Inspector of Police, Chandralapadu P.S. recorded the statement of the deceased. Ex.P11 is the statement on which basis PW14 registered a case in Crime No.18 of 1994 under Section 324 read with Section 34 IPCand issued FIR under Kx.P!2. PW14 also recorded that statements of PWs.1 to 3 and sent all the injured to Nandigama Government Hospital for treatment. Thereafter, PW14 proceeded to the scene of of fence and prepared a rough sketch under Ex.P9 and examined PWs.4 to 6. PW9 is the Civil Assistant Surgeon,-Nandigama who treated PWs.l, 2 and Rathnamma and issued wound certificates under Exs.P4, P6 and P5 respectively. As the deceased was in a critical condition, he was referred to the Government Hospital, Vijayawada for treatment.
5. PW12 - Sub-Inspector of Police took up further investigation and examined all the witnesses including the deceased. On 17-6-1994 around 12 hours, PW12 received the intimation from the hospital about the death of the deceased following which he altered the Section of law to 302 IPC. Ex.P7 is the intimation memo and Ex.PS is the altered FIR. He then sent the altered FIR to all concerned. After receiving Ex.PS, PW13 proceeded to Vijayawada Government Hospital along with PW12 and held inquest over the dead body. Ex.P3 is the inquest report and he examined PW1 Katta Rathnamma, PWs.2 to 6 and recorded their statements on 17-6-1994. Dr. K. Krishna Prasad who conducted autopsy over the dead body of the deceased, issued Ex.PIO - postmortem certificate according to which the death of the deceased was due to head injury. Thereafter, PW13 filed charge-sheet against the accused.
6. The prosecution, in order to justify the charges levelled against the accused, examined PWs.l to 14 and marked Exs.Pl to P12. On the strength of the evidence of PWs.1 to 12, though the accused pleaded not guilty, the Court below found Accused No. 1 guilty for the offence under Section 302 IPC and convicted and sentenced him as indicated above. However, the Court below acquitted A1 to A4 for the remaining charges levelled against them, by its judgment dated 24-4-1997 against which, the present appeal is filed by the appellant/ Accused No. 1.
7. Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the appellant/accused No. 1 strenuously contended that though PWs.l to 14 were examined by the prosecution, the Court below only relied upon the evidence of PWs. I to 4 and found the appellant guilty of committing the off once under Section 302 IPC. Learned senior Counsel contended that the Court below disbelieved the version of the injured witnesses who were examined as PWs. 1 to 4 and gave a benefit of doubt in favour of A2 to A4 and acquitted them, but has erroneously came to the conclusion that Al alone was responsible for the death of the deceased as he inflicted injuries on the deceased. Learned senior Counsel contended that this finding of the Court below is erroneous and improbable inasmuch as the prosecution has failed to establish the guilt of the appellant that he has inflicted injuries on the deceased. Learned senior Counsel nextly contended that according to the prosecution version, one Dr. Krishna Prasad seems to have conducted post-mortem examination over the dead body of the deceased and issued Ex.PIO post-mortem certificate. Learned senior Counsel contended that the prosecution has failed to examine and seek the opinion of another doctor since the author of Ex.PIO is no more as to whether the nature of the injuries alleged to have been inflicted by the accused are sufficient to cause the death of the deceased. Learned senior Counsel further contended that Ex.PIO post-mortem certificate is sought to be proved by PW13 who is the Inspector of Police. According to the learned senior Counsel, when a document is not proved by the prosecution, the prosecution cannot press into service the contents of such document for finding a person guilty.
8. It is nextly contended by the learned senior Counsel that as seen from the evidence of PW14 - Assistant Sub-Inspector of Police, he deposed that he recorded the statements of PWs.1 to 6 under Section 161 Cr.PC on 3-6-1994 i.e., the date of the incident, but strangely such statement copies said to have been recorded by PW14 have neither been filed into Court nor furnished to the accused -who is entitled to examine and use them at any point of lime in the cross-examination of the prosecution witnesses. Counsel further stated that the fact of recording such statements by PW14 on 3-6-1994 has also been admitted by PW13 who deposed that those statements have not been filed into Court. Learned senior Counsel, therefore, contended that when these crucial statements are not furnished to the accused who is entitled to have them as a matter of right, non-furnishing of such statements to the accused is fatal to the case of the prosecution and on this count alone, the case of the prosecution is liable to be thrown out. In support of his contention, learned senior Counsel has drawn our attention to a decision of a Division Bench of this Court reported in Re. Gaddem Jayarami Reddy, 1959 (1) An. WR 197.
9. The learned Public Prosecutor, on the contrary, pleaded that the evidence of PWs.l to 4 cannot be disbelieved merely because the statements recorded by PW14 have not been furnished to the accused. According to the learned Public Prosecutor, the requirement under Section 173(5) of Cr.PC obliges the prosecution to furnish the copies of those documents which are sought to be relied upon by the prosecution. It is further contended that even if the statements under Section 161 Cr.PC of PWs.1 to 4 have been recorded by PW 14, when these statements are not sought to be relied upon, non-furnishing of these statements would not cause any prejudice to the defence case and there was no whisper about this aspect in the trial Court and as such, this. aspect which is a subsequent development at this stage, is liable to be rejected. With regard to the proof and genuineness of Ex.P10 post-mortem certificate is concerned, learned Public Prosecutor contended that Ex.P10 was sought from the custody of the hospital authorities and therefore, its genuineness cannot be disputed merely because the author of Ex.P10 is not examined to prove it. He further contended that when PW13 who is the Investigating Officer has identified Ex.P10, that itself is a sufficient compliance in terms of Section 47 of the Evidence Act. Learned Public Prosecutor submitted that the Court below on an appreciation of the evidence of PWs.l to 4 in the right perspective has found that Al alone is responsible for the death of the deceased and therefore, no interference is required in the well-considered judgment of the Court below. Under these circumstances, learned Public Prosecutor has pleaded for dismissal of this Criminal Appeal.
10. We have heard the learned senior Counsel for the appellant and the learned Public Prosecutor for the respondent, at length.
11. We have carefully considered the two submissions made by Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the appellant, viz., on the question of non-furnishing of the statements of PWs.l to 4 recorded under Section 161 Cr.PC by PW14 to the accused and the repurcussions thereof; and secondly, non-examining the author of Ex.PIO - postmortem certificate and the implications thereof.
12. Coming to the first point, viz., non-furnishing of the statements of PWs.1 to 4 recorded under Section 161 Cr.PC by PW14 to the accused, as seen from the evidence ofPW14, it is revealed that he has recorded the statements of PWs. 1 to 4 on the date of incident i.e., 3-6-1994 and he has admitted to this fact of recording the statements. PW13 - Inspector of Police has also admitted in his evidence that PWI4 recorded the statements of PWs.l to 4 on 3-6-1994. However, PW13 deposed that he is in possession of those statements of PWs.l to 4 recorded under Section 161 Cr.PC and those statements have not been submitted into Court and have not been furnished to the accused.
13. In this background, it becomes necessary for us to examine the repercussions and importance of the statements recorded under Section 161 Cr.PC. We must necessarily mention that the statements recorded under Section 161 Cr.PC could be used by the prosecution as well as the accused. If a witness deposes in the Court contrary to his statement made under Section 161 Cr.PC, before the police, the prosecution could then seek the permission of the Court to declare such witness as hostile to the prosecution and cross-examine him/ her. If some new facts are brought on record in the evidence of a witness in the Court which is also contrary to his/her statement made under Section 161 Cr.PC before the police, the defence is entitled to mark those contradictions and improvements and can use those contradictions or improvements in favour of the accused. Thus, the statements under Section 161 Cr.PC made by the witnesses before the police assume much significance.
14. A Division Bench of this Court in Gaddem Jayaranri Reddi 's case (supra) held that a deliberate destruction of statements of witnesses made during investigation or wholesale refusal to furnish copies of such statements leads to the inference that prejudice was occassioned to the accused. Even otherwise a slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. In a circumstance, where the prosecution has suppressed documents, it is open to a Court to presume that die statements withheld would become unfavourable to the prosecution if produced.
15. In the facts and circumstances of this case, we are in entire agreement with the principle laid down in the above decision (supra). As contended by the learned senior Counsel appearing on behalf of the appellant, we are of the view that non-furnishing of the statements recorded under Section 161 Cr.PC pertaining to PWs.l to 4 by PW14 to the accused, lias occasioned great prejudice to the appellant/accused.
16. We now proceed to deal with the other crucial aspect, viz., non-examination of the author of Ex.P10 - post-mortem certificate and its implications thereof. It is no doubt true that PW13 has spoken to about Ex.PIO. PW13 is the Inspector of Police who deposed that Ex.P 10 was called for from the hospital authorities. PW13 has also deposed that he has not seen Dr. Krishna Prasad who conducted post-mortem examination over the dead body of the deceased nor he is aware of the signature or handwriting of the said doctor. Though the learned Public Prosecutor has contended that Ex.PIO was sought from the hospital authorities and therefore, its genuineness cannot be disputed, we are not inclined to concur with the said contention. Merely because a document is obtained from the custody of the Government Hospital, its genuineness is not automatically proved. The person who has authored the said document or who has issued such document must come and depose before the Court with regard to its contents. Unless such document is proved, it cannot enure to the benefit of the party on whose behalf it is marked. In this case, Ex.PIO - post-mortem certificate issued by Dr. Krishna Prasad has not been proved nor there was any effort by the prosecution to seek the opinion of another doctor who knows or identifies the handwriting of Dr. Krishna Prasad and elicit his opinion on the nature of injuries and the implication of those injuries on the deceased.
17. Apart from these crucial aspects, we must also say that admittedly the deceased was shifted to Government Hospital at Vijayawada for better treatment. It has come on record that the deceased was in the hospital for nearly 13 days. It is unfortunate that no effort is made on behalf of the prosecution to throw light on the nature of treatment given to the deceased in the hospital and cause of his death after a prolonged treatment in the hospital. Therefore, we are ofthe view that the prosecution failed to prove the injury which is responsible for the death of the deceased. In (lie absence of any reasonable evidence adduced by the prosecution, it would be difficult for us to connect the accused for the cause of the death ofthe deceased.
18. In this case, though the trial Court has disbelieved the version of the prosecution witnesses who are also injured witnesses (PWs.l to 4), on the implication of A2 to A4 for the offences under Sections 302, 447, 324 and 323 IPC, we see no reasons as to why the trial Court failed to extend the same benefit of doubt toAl when the trial Court held that the prosecution failed to fix the liability on A2 to A4. Even it has not come on record to show tliat the author of Ex.P 10 D. Krishna Prasad was no more as on the date ofrecording the evidence before the trial Court.
19. In view of the above discussion, we are of the view that the prosecution has failed to connect the appellant/accused No.1 with the offence under Section 302 IPC and therefore, we are inclined to hold that the conviction and sentence imposed by the Court below under Section 302 IPC on the appellant/accused No.1 cannot be sustained. Accordingly, we set aside the same.
20. In the result, the appeal is allowed. The conviction and sentence imposed by the Court below on the appellant/accused No.1 are set aside. The appellant shall be set at liberty forthwith, if not required in any other case. The fine amount, if paid, shall be refunded to the appellant.