Andhra Pradesh High Court - Amravati
Palepu Seenaiah, vs The State Of A.P., Rep By Pp., on 12 December, 2023
THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.555 OF 2008
ORDER:-
The judgment in Sessions Case No.110 of 2006, dated 17.04.2008, on the file of IV Additional District & Sessions Judge (Fast Track), Nellore ("Additional Sessions Judge" for short) is under challenge in this Criminal Appeal by the unsuccessful accused No.1, who was found guilty for the offences under Sections 326 and 324 of the Indian Penal Code ("IPC" for short), convicted under Section 235(2) of the Code of Criminal Procedure) ("Cr.P.C." for short) and sentenced to suffer rigorous imprisonment for five years and a fine of Rs.1,000/- in default to suffer simple imprisonment for six months for the offence under Section 326 of IPC and further sentenced to suffer rigorous imprisonment for one year each for the offence under Section 324 of IPC under two counts.
2) The parties to this Criminal Appeal will hereinafter be referred to as described before the learned Additional Sessions Judge for the sake of the convenience.
3) The Sessions Case No.110 of 2006 arose out of a committal order in P.R.C.No.65 of 2005 on the file of IV 2 Additional Judicial Magistrate of First Class, Nellore, pertaining to Crime No.71 of 2005 of Nellore Rural Police Station.
4) The State, represented by the Inspector of Police, Nellore Rural, filed a charge sheet in the aforesaid crime number under Sections 302, 326, 324 r/w 34 of IPC.
5) The case of the prosecution, in brief, as set out in the charge sheet is as follows:
(i) The Accused Nos.1 to 5 and the deceased Amavarapu Audeiah are inter-related. Accused No.5 is the maternal uncle of Amavarapu Audi Narayana who married the daughter of Accused Nos.4 and 5, about three years prior to 18.03.2005. While so, the said Amavarapu Audi Narayana was suffering from chronic stomach ache and he approached a Quack Doctor at Nellore and she told him that somebody administered some medicine to him to attract him. On that aspect, Amavarapu Audinarayana and his family members were blaming the parents-in-law of Amavarapu Audinarayana i.e., Accused Nos.4 and 5. While so, on 16.03.2005 Accused Nos.2 to 4 went to the house of Amavarapu Audinarayana in South Rajupalem Village and there was verbal altercation between the family members of Amavarapu Audinarayana and Accused Nos.2 to 4. Then the Accused Nos.2 to 4 left to their village stating that they would see the end of the family members of Audinarayana. Again on 3 18.03.2005 at about 3-00 p.m., Accused Nos.1 to 5 went to the house of Amavarapu Audinarayana at South Rajupalem and picked up a quarrel with him and his family members and in that quarrel, Accused Nos.1 to 5 attacked Amavarapu Audinarayana and his father Amavarapu Audiah and elder sister of Amavarapu Adinarayana by name Palepu Subbamma and caused injuries to them with hedge-bill and sticks with common intention of doing away with their lives. Accused No.1 hacked Amavarapu Audeiah and Amavaapu Audinarayana on their respective heads and A.1 also hacked Subbamma on her right hand caused severe bleeding injuries to them. Accused Nos.1 to 3 beat Audinarayana and his father and sister with sticks and caused injuries to them.
A.4 caught hold the tuft of Subbamma and thrown her down. Accused No.5 pelted stones at the injured persons. The injured persons were shifted to Nellore Government Hospital. Amavarapu Audeiah, who received severe injuries, was shifted to SVIMS Hospital, Tirupati on 22.03.2005 for better treatment and while undergoing treatment the said Amavarapu Audeiah died on 25.03.2005 at 7.20 p.m. In the first instance, a case in Crime No.71 of 2005 of Nellore Rural Police Station was registered under Section 324 r/w 34 of I.P.C. and subsequently the Section of law was altered to Section 302 r/w 34 of IPC. The Inspector of Police investigated the case. Accused Nos.1, 3 4 and 5 were arrested on 03.04.2005 and they were sent to Court for remand. A.4 has obtained anticipatory bail. Hence, the charge.
6) The learned IV Additional Judicial Magistrate of First Class, Nellore, on perusal of the material available on record took cognizance under Section 302 r/w 34 IPC against Accused Nos.1 to 5 and numbered the same as PRC No.65 of 2005. After appearance of the accused before the learned IV Additional Judicial Magistrate of First Class, Nellore and after compliance of the provisions of Section 207 of Cr.P.C., the case was committed to the Court of Sessions as contemplated under Section 209 of Cr.P.C. The Principal Sessions Court, Nellore, numbered the same as S.C.No.110 of 2006 and made over the same to the Court of IV Additional District & Sessions Judge, Nellore for disposal, in accordance with law.
7) Before the learned Additional Sessions Judge, as it was found that A.3 was below the age of 18 years, the case was split up and A.3 was sent to juvenile Court-cum-III Additional Judicial Magistrate of First Class, Tirupati to deal with him according to law. The learned Additional Sessions Judge examined the accused under Section 228 of Cr.P.C. Charges under Sections 302, 324(2 counts), 326, 324 r/w 34 of IPC against A.1; charges under Section 302 r/w 34 of IPC, 324 IPC 5 (2 counts), 324 r/w 34 of IPC, 326 r/w 34 of IPC against A.2; charges under Section 302 r/w 34 of IPC, 324 r/w 34 of IPC (3 counts) and 326 r/w 34 of IPC against A.4; charges under Section 302 r/w 34 of IPC, 324 r/w 34 of IPC (3 counts) against A.5 were framed and read over to them in Telugu for which they pleaded not guilty and claimed to be tried.
8) To bring home the guilt against the accused, the prosecution examined P.W.1 to P.W.15 and got marked Ex.P.1 to Ex.P.14 and M.O.1 to M.O.5. The prosecution has given up the evidence of Amavarapu Subbaiah, Amavarapu Subbarayudu, Jaladi Ragaiah and Jaladi Venkateswarlu. After closure of the evidence of the prosecution, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which A.1, A.2, A.4 and A.5 denied the same. A.1 put forth his version during course of Section 313 Cr.P.C. that at the time of marriage between his sister and P.W.1, they agreed to give dowry to P.W.1, but they could not give it to them. For that P.W.1 and P.W.2 and deceased Amavarapu Audeiah were harassing his sister and there were altercations between his sister and P.W.1 and P.W.2 and Amavarapu Audeiah and in that process, they sustained injuries. Later, basing on those injuries, this case has been foisted against them with the help of Anam 6 people. Accused No.2 stated that the husband and parents-in- law of his sister were harassing his sister for dowry. There were quarrels between his sister and her husband and parents-in-law and in that process, they sustained injuries. Basing on those injuries, this case has been foisted against them with the help of Anam people. A.4 and A.5 also put forth the similar version. No defence witnesses were examined. However, during cross examination of P.W.1, P.W.4, P.W.6 and P.W.7 Ex.D.1 to Ex.D.5 relevant portion of Section 161 of Cr.P.C. statements by way of contradictions, as the case may be, were marked.
9) On conclusion of trial and after hearing both sides and on considering the oral as well as documentary evidence, the learned Additional Sessions Judge found A.4 and A.5 not guilty of the offences under Sections 302 r/w 34 of IPC, 324 r/w 34 of IPC, 326 r/w 34 of IPC; A.1 not guilty of the offences under Sections 302 and 324 r/w 34 of IPC; A.2 not guilty of the offences under Sections 302 r/w 34 of IPC, 326 r/w 34 of IPC and 324 r/w 34 of IPC and acquitted them under Section 235(1) of Cr.P.C. The learned Additional Sessions Judge found A.1 guilty of the offences under Sections 326 and 324 of IPC (2 counts) and further found A.2 guilty of the offence under Section 324 of IPC and convicted them under Section 235(2) of Cr.P.C. and after questioning them about the quantum of sentence, 7 sentenced A.1 to suffer rigorous imprisonment for five years and a fine of Rs.1,000/- in default to suffer simple imprisonment for six months for the offence under Section 326 of IPC. The learned Additional Sessions Judge further sentenced A.1 to suffer rigorous imprisonment for one year each for the offence under Section 324 of IPC under two counts. The learned Additional Sessions Judge sentenced A.2 to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for six months for the offence under Section 324 of IPC. M.Os.1 to 5 shall be retained till a decision in the split up case against A.3 pending before Juvenile Court, Tirupati. The sentences of imprisonment imposed against A.1 under three counts shall run concurrently. The period of detention undergone by A.1 during the course of trial and investigation of the case shall be set off against the period of imprisonment imposed in this case under Section 428 of Cr.P.C. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful A.1 filed the present appeal.
10) Before going to frame the points for determination, this Court would like to make it clear that it is brought to the notice of this Court during the course of hearing that as against the acquittal recorded by the learned Additional Sessions Judge as above, no appeal is filed by the prosecution and further the A.2 who was imposed with the fine also did not file any appeal. 8 So, the scope of the present appeal is confined as regards the conviction and sentence imposed against the appellant under Sections 326 and 324 of IPC.
11) Now, in deciding the present Criminal Appeal, the points that arise for consideration are as follows:
(1) Whether the prosecution has proved beyond reasonable doubt that A.1 caused grievous injury to the deceased Amavarapu Audeiah on 18.03.2005 at 3-00 p.m. and further that A.1 caused the simple injuries under two counts to P.W.4 on the same day?
(2) Whether the prosecution proved the above charges against A.1 beyond reasonable doubt?
(3) Whether the judgment in S.C.No.110 of 2006 is sustainable under law and facts and there are any grounds to interfere with?
Points:-
12) There is no dispute about the relationship, inter se, between A.1 to A.5 at one hand and P.W.1, P.W.4 and P.W.5 at another hand. A.1 to A.3 were no other than the brother-in-laws of P.W.1 and brothers of P.W.5, who was wife of P.W.1. There is also no dispute that the deceased was the father and father-in-
law of P.W.1 and P.W.5 respectively. There is also no dispute about the fact that P.W.4, one of the injured, was the sister of P.W.1. P.W.1 and P.W.4 were the injured witnesses. Amavarapu 9 Audeiah was the deceased being the father of P.W.1. P.W.5 was the wife of Amavarapu Audeiah. P.W.3 was another daughter of Amavarapu Audeiah. P.W.1 was the direct witness to the occurrence being injured. P.W.2 and P.W.3 claimed to have learnt about the occurrence. P.W.4 another injured was shown as direct witness to the occurrence. P.W.5 was also direct witnesses to the occurrence. P.W.6 and 7 were also cited as direct witnesses to the occurrence being the neighbours. P.W.8 was the medical officer who treated the injuries on the person of P.W.1 and P.W.4. P.W.9 was the mediator for observation of the scene of offence and for inquest over the dead body of the deceased. P.W.10 was the medical officer, who conducted autopsy over the dead body of the deceased. P.W.11 was A.S.I., who registered the FIR. P.W.12 was the Head Constable who recorded the statement of P.W.1. P.W.13 was the medical officer, who treated the injuries over the deceased Amavarapu Audeiah. P.W.14 was the Probation Sub Inspector, who altered the Section of law. P.W.15 was the Inspector of Police, who investigated the case. The scene of offence was said to be at the house of P.W.1 and the deceased.
13) Turning to the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5, the motive for the offence was such that when P.W.1 went to Quack Doctor with stomach pain, the Doctor 10 suspected that P.W.1 was administered with some medicines so as to attract him and that the Doctor removed some gulikalu from his stomach and P.W.1 suspected that his parents-in-law administered those gulikalu to him. As P.W.1 suspected the role of his parents-in-law on 16.03.2005 his mother-in-law i.e., A.4 and his brother-in-laws came to the house of P.W.1 and quarreled with them on that issue and left the house while challenging that they will end the life of P.W.1 and his family members. In the aforesaid background, offence was alleged to be occurred on 18.03.2005.
14) The evidence of P.W.1 on material aspects in this regard is that on 18.03.2005 A.1 to A.5 came to his house and picked up quarrel with his father and at that time, A.1 picked up a „Moddukatti‟ (raw knife) which was kept at the verandah of his house and he hacked his father on his head and he fell down. Then, he (P.W.1) tried to go to the rescue of his father by taking a stick, but his sister P.W.4 intervened and caught hold him. Then A.1 hacked him on his head with that „Moddukatti‟ and he sustained bleeding injury on his head. A.2 beat him with stick on his right shoulder, A.3 also beat him with stick on his right hand and his sister and his wife (P.W.4 and P.W.5 respectively) took him into the house and closed the door and bolted the door of the house from outside by keeping him (P.W.1) inside the 11 house. When A.1 tried to hack four months aged daughter of him (P.W.1), who was on a cot, with „Moddukatti‟ P.W.4 intervened and the said blow fell on the left hand near thumb of P.W.4 and caused bleeding injury. Then A.4 caught hold the tuft of P.W.4 and dragged her and throw her down. A.5 hurled stones on his father and his sister P.W.4. Meanwhile the neighbours came and A.1 to A.5 escaped from the scene. Later, he, his father and his sister P.W.4 were taken to Government Headquarters Hospital, Nellore. On 22.03.2005 his father was shifted to SVIMS hospital, Tirupati where his father died on 25.03.2005. Police recorded his (P.W1) statement on 18.03.2005 at Government Hospital, Nellore under Ex.P.1.
15) P.W.2-Amavarapu Audemma, mother of P.W.1, deposed about the incident on 16.03.2005 where the accused was alleged to have come to their house and threatened them. She further deposed that on 17.03.2005 she went to the village of Damaramadugu and returned to the village on 18.03.2005 at 5-00 p.m., and then she came to know about the occurrence. Therefore, P.W.2 was a hearsay witness with regard to the incident happened on 18.03.2005.
16) The evidence of P.W.3, the daughter of P.W.2, is also that on 18.03.2005 on receipt of telephone message, she went to Government Hospital, Nellore and found her father, her 12 brother P.W.1 and her sister P.W.4 admitted in the hospital with injures. She was also a hearsay witness.
17) P.W.4 was another injured i.e., Palepu Subbamma, elder sister of P.W.1. Her evidence with regard to the incident on 18.03.2005 is that on that day at 2-00 p.m., she went to the house of her father at the village South Rajupalem Harijanawada to see her father, who was reported to be not feeling well. By that time, A.1 to A5 were near the house of her father. Her father called them to come inside the house. A.1 to A.5 picked up quarrel with her father. A.1 picked up a „Moddukatti‟ at the verandah of the house of her father and hacked her father with „Moddukatti‟ on the middle of the head and her father sustained bleeding injury. A.2 and A.3 beat P.W.1 with sticks on his right shoulder. She and wife of P.W.1 took P.W.1 inside the house of her father and closed the door of the house and bolted the same from outside. When A.1 tried to hack the daughter of P.W.1 aged 4 months who was on the cot at the verandah of the house of her father, she tried to avert the said blow and the blow of „Moddukatti‟ fell on her left hand near thumb. A.2 and A.3 beat her with sticks on her right hand. A.4 caught hold her tuft of hair and throw her down and beat her with her (A.4) hand. A.5 beat her with stones. In the meanwhile, the neighbours came and on seeing them A.1 to A.5 escaped from the scene. Then 13 the neighbours took her, P.W.1 and her father to Government Hospital, Nellore. Later, her father was taken to SVIMS hospital, Tirupati where he died on 25.03.2005.
18) The evidence of P.W.5 who is no other than the wife of P.W.1 and sister of A.1 to A.3 and daughter of A.4 and A.5 supported the case of the prosecution. She spoke about the fact that P.W.1 went to Quack Doctor at Nellore as he was suffering with stomach pain. Doctor stated that somebody has administered some medicine to him and that Doctor has removed some medicine from the stomach of her husband. Her husband suspected that her mother has administered that medicine to him. On 16.03.2005 her mother and her brothers A.1 and A.2 came to South Rajupalem and altercated with P.W.1 and P.W.2. At that time when her parents called her, she did not go to her parents‟ house. Subsequently, on 18.03.2005 at about 3 or 3-30 p.m. A.1 to A.5 came to their house at South Rajupalem and quarreled with her parents-in-law. A.1 picked up a „Moddukatti‟ from the varasa of their house and hacked with that „Moddukatti‟ on the head of her father-in-law and he sustained bleeding injury and he fell down unconsciously. A.1 hacked her husband with that „Moddukatti‟ on his head and caused bleeding injuries. A.2 and A.3 beat P.W.1 on his right shoulder with sticks. She, herself and P.W.4 have taken P.W.1 14 inside the house and kept him in the house and bolted the door from outside. When A.1 tried to hack her four months baby, who was on the cot, P.W.4 intervened and the blow fell on the left hand and she sustained injuries. In the meanwhile, the neighbours came there and A.1 to A.5 left the scene. Then her husband, her father-in-law and P.W.4 were taken to Government Headquarters Hospital, Nellore and subsequently her father-in-law was shifted to SVIMS Hospital, Tirupati where he died on 25.03.2005.
19) Turning to the evidence of P.W.6, a direct witness to the occurrence, he spoke about the incident happened on 16.03.2005 where A.1, A.2 and A.4 came to the house of P.W.1 and quarreled with P.W.1 and P.W.2 and that A.1, A.2 and A.4 challenged them with dire consequences. With regard to the incident in question on 18.03.2005, his evidence is that at about 3-00 pm or 3-30 pm A.1 to A.5 came near the house of P.W.1. The deceased Amavarapu Audeiah asked them to come into his house. A.1 to A.5 picked up quarrel with Amavarapu Audeiah and his men. A.1 has picked up a „Moddukatti‟ on a bench at the varasa of the house of Audieah and P.W.1 and A.1 hacked Audeiah on the middle of his head with that „Moddukatti‟ and he fell down unconsciously. A.1 hacked P.W.1 with that „Moddukatti‟ on his hand and on the right side of the head of P.W.1 and 15 P.W.1 sustained bleeding injures. Then A.2 and A.3 beat P.W.1 with sticks on his right shoulder. A.1 tried to hack the four months child of P.W.1, but P.W.4 resisted A.1 and the blow of „Moddukatti‟ fell on the left hand of P.W.4 near thumb. At that time, P.W.1 was kept inside the house and the door of the house was bolted outside by P.W.4 and P.W.5. A.2 and A.3 beat P.W.4 on her right wrist with sticks. A.4 caught hold the tuft of hair of P.W.4 and throw her down and beat her with hands. In the meanwhile, other neighbours of the house of P.W.1 came there. He witnessed the incident by coming near the house of P.W.1. The accused left the scene. Some of their villagers have taken the injured to Government Headquarters Hospital, Nellore. Subsequently, he learnt that Amavarapu Aueiah died at Tirupati Hospital on 25.03.2005.
20) The evidence of P.W.7 is that she witnessed the occurrence on 16.03.2005 where A.1, A.2 and A.4 threatened P.W.1 and P.W.2 with dire consequences. Further on 18.03.2005 at about 3 or 4 p.m., A.1 to A.5 came to the house of Audeiah and there was an altercation between A.1 to A.5, Audeiah and his men. A.1 picked up a „Moddukatti‟ at the kottam of Amavarapu Audeiah and hacked Audeiah with that „Moddukatti‟ on the middle of the head of Audeiah and Audeiah sustained bleeding injury. When P.W.1 tried to take a stick to go to the 16 rescue of his father, P.W.4 and P.W.5 have caught hold him. Then A.1 hacked P.W.1 with that „Moddukatti‟ on his head and caused bleeding injury. A.4 and A.5 beat P.W.1 with sticks on his right shoulder. P.W.4 and P.W.5 have kept P.W.1 inside the house and bolted the doors of the house from outside. The daughter of P.W.1 was on a cot on the verandah on the northern side, A.1 tried to hack that baby and P.W.4 went to avert the same and P.W.4 received blow on her left hand near thumb and sustained bleeding injury. A.4 caught hold the tuft of hair of P.W.4 and beat her with her hands. On hearing the cries of neighbours, the accused left the scene. The neighbours have taken the injured P.W.1, P.W.4 and Audeiah to the Government Headquarters Hospital, Nellore. Subsequently, Audeiah was shifted to Tirupati Hospital and she learnt that Audeiah died in the hospital.
21) P.W.8 is the medical officer, who gave treatment to P.W.4 and her evidence is that on 18.03.2005 she examined Palepu Subbamma (P.W.4) and opined that one out of three injuries on the person of P.W.4 is grievous in nature and the remaining two are simple in nature. The said two simple injuries can be possible by a „Moddukatti‟ and the other injury can be possible by a stick. She also deposed that on the same day i.e., on 18.03.2005 at 6-30 p.m., she examined P.W.1 and found 17 three simple injuries and out of them, two injuries can be possible by a „Moddukatti‟ and one injury can be possible by a stick and she issued Wound Certificate of P.W.4 under Ex.P.2 and Wound Certificate of P.W.1 under Ex.P.3.
22) P.W.9 is the mahazar witness to the observation of the scene of offence and inquest and he supported the case of the prosecution.
23) P.W.10 is the medical officer, who conducted autopsy over the dead body of the deceased and his evidence is that on 27.03.2005 at 10-30 a.m. he conducted autopsy over the dead body of the deceased Amavarapu Audeiah and he noted his observations at the time of postmortem examination in the postmortem report under Ex.P.6. He is of the opinion that the person died of "Hypo polemic shock as a result of bleeding from stomach and intestine consequent upon administration of anticoagulants". He also opined that the wounds noted by him are not sufficient to cause death in the ordinary course of nature. The external injury noted under Ex.P.6 can be possible by M.O.1 shown to him.
24) P.W.11 is the then ASI of Police, Nellore Rural Police Station. He deposed that on 19.03.2005 at 1-00 p.m., he registered Ex.P.1 and Ex.P.7 on the report of P.W.1 and hospital intimation respectively as FIR in Crime No.71 of 2005 under 18 Section 324 r/w 34 of IPC under Ex.P.8. Then he went to Nellore Government Headquarters Hospital and recorded the statement of P.W.1, P.W.2 and P.W.4 under Section 161 of Cr.P.C. and then proceeded to the village South Rajupalem, conducted scene of offence observation in the presence of P.W.9 and one Subbarayydu and seized M.O.1 to M.O.5 under scene of offence observation report under Ex.P.5. He recorded the statement of P.W.5 to P.W.7.
25) The evidence of P.W.12, the then Head Constable is that on 18.03.2005 on receipt of hospital intimation under Ex.P.7, he visited M.S.B. Ward of Government Headquarters Hospital, Nellore where he recorded the statement of P.W.1 under Ex.P.1, since the other injured Amavarapu Audeiah was unconscious state of mind. He obtained an endorsement of the Duty Doctor with regard to the consciousness of P.W.1 on Ex.P.1. Then he informed to the SHO, Nellore Rural Police Station about Ex.P.1 and Ex.P.7.
26) Turing to the evidence of P.W.13, the Civil Surgeon Specialist, D.S.R. Government Headquarters Hospital, Nellore, he deposed that on 19.03.2005 at 9-45 a.m., he has seen the X- ray of the patient Amavarapu Audeiah that was taken on 19.03.2005. As X-ray of skull A.P. and lateral view, there was 19 fracture of right franto parietal bone. He has noted his opinion on the cover of X-ray which was marked as Ex.P.11.
27) The evidence of P.W.14, the then Probationary Sub Inspector of Police, Nellore Rural Police Station, is that on 26.03.2005 at 7.20 a.m., on receipt of death intimation of Amavarapu Audeah under Ex.P.12, he altered Section of law in the FIR. Ex.P.13 is the original alter F.I.R. in Crime No.71 of 2005 of Nellore Rural Police Station.
28) P.W.15, the then Inspector of Police, Nellore Rural Circle, has deposed with regard to investigation in this case.
29) Sri Battula Sanjay Gandhi, learned counsel for the appellant, would contend that P.W.1, P.W2, P.W.3, P.W.4 and P.W.5 were the interested witnesses and they were interrelated. P.W.6 and P.W.7 were cited as direct witnesses, though they did not witness the occurrence. They supported the case of the prosecution for the reasons best known to them. It is very difficult for them to witness the alleged incident right from the beginning. There is every doubt about the manner in which they claimed to have witnessed the occurrence. There were specific overt acts alleged against A.1 in Ex.P.1-report. The case of the prosecution suffers with several improbabilities. The learned Additional Sessions Judge exonerated the charges against A.1 to A.5 under Section 302 of I.P.C. and 302 r/w 34 of I.P.C., as the 20 case may be. Further the learned Additional Sessions Judge did not believe the case of the prosecution as against A.3 to A.5. When the learned Additional Sessions Judge extended benefit of doubt, the same should have been extended to A.1 also. Even otherwise, the manner of attack as projected in Ex.P.1 as against the deceased and P.W.1 was not at all proved. Though it is alleged that A.1 also caused injuries to P.W.1, but it was not proved by the prosecution. A.2 was found guilty for causing injuries to P.W.1 and he was let off with fine amount under Section 324 of I.P.C. The evidence on record would disclose that the alleged incident took place in a spur of moment without there being any intention on the part of the accused to cause the death of the deceased. The learned Additional Sessions Judge made a finding that the cause of death of deceased was for some other reason and the injury that was caused to deceased was not sufficient to cause the death. Viewing the same, the learned Additional Sessions Judge found guilty of the present appellant under Section 326 of I.P.C. for causing grievous injuries to deceased and further found him guilty under Section 324 of I.P.C. for causing injuries to P.W.4 under two counts because there were two injuries on the person of P.W.4. The learned Additional Sessions Judge did not believe the allegation that A.1 caused grievous injuries to P.W.4 because 21 P.W.4 did not speak of anything about the manner in which she received grievous injuries. When the case of the prosecution suffers with several improbabilities, the appellant is also entitled for an acquittal under benefit of doubt. There was a discrepancy as to the actual scene of occurrence whether it was in verandah or outside the verandah. Though there was a statement said to be recorded form the deceased, but it had not seen the light of the day. The Quack Doctor who examined P.W.1 suspecting that he was administered something by his in-laws was not examined by the prosecution which is fatal. The accused raised several contentions before the learned Additional Sessions Judge which was not found favour. The conviction of the appellant under Section 326 and 324 of I.P.C. was not with proper reasons, as such, the appeal is liable to be allowed.
30) The learned counsel would further canvass a contention that during the pendency of the appeal, the appellant met with an accident and suffered 50% of the disability and he is not in a position to walk properly and Court may took into the said fact as mitigating circumstances to reduce the sentence, ultimately if the Court is going to believe the case of the prosecution for any valid reason. With the above said contentions, the learned counsel sought to allow the appeal or to 22 reduce the sentence of imprisonment imposed against the appellant.
31) Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, would contend that the learned Additional Sessions Judge took pains to appreciate the evidence on record and after thorough analyzation of the evidence on record with care and caution rightly found the present appellant guilty of the charges under Sections 326 and 324 of I.P.C. under two counts. The evidence of P.W.1, one of the inured witnesses, P.W.4 another injured witness cannot be taken as inimical in nature. Though they were interested witnesses, but at the same time they were the injured witnesses whose evidence is convincing. P.W.5 is no other than the wife of P.W.1 and daughter of A.4 and A.5 and sister of A.1 to A.3 fully supported the case of the prosecution. Apart from this, P.W.6 and P.W.7 were immediate neighbours to the house of P.W.1 and the deceased. The actual attack on the deceased and P.W.1 was preceded by verbal exchanges, as such, P.W.6 and P.W.7 had sufficient time to observe the events and to rush to the house of P.W.1. P.W.5 was a natural witness being wife of P.W.1 present in the house and P.W.6 and P.W.7 were the neighbours who had no reason to depose false against the accused. The learned Additional Sessions Judge on thorough 23 appreciation of the evidence on record, rightly found the present appellant guilty of the charges, as such, the appeal is liable to be dismissed.
32) Firstly, this court would like to make it clear that the fact that the learned Additional Sessions Judge extended an order of acquittal with regard to certain charges against the present appellant as well as charges against other accused does not mean that the case of the prosecution against the present appellant is false. In fact, when the truth and falsehood is mixed up in a case it is the duty of the trial Court to separate the truth from the falsehood. The judgment of the learned Additional Sessions Judge reflects such a course of action. Under the circumstances, simply because A.1 was exonerated of certain charges and other accused were exonerated of certain charges, this Court cannot come to a conclusion automatically that the allegations under Section 326 and 324 of I.P.C. against the appellant are absolutely not supported by any evidence. So, the proper course is to scrutinize the evidence as to whether the learned Additional Sessions Judge was right in recording a finding that the present appellant caused grievous injury to the deceased and further simple injuries to P.W.4 on two counts.
33) Firstly, I would like to deal with the medical evidence with regard to the grievous injuries on the person of 24 deceased. As seen from the evidence of P.W.10-medical officer, who conducted autopsy over the dead body of the deceased, there was external sutured wound of 16 cms., on the forehead. Corresponding to it, there was „L‟ shaped fishured fracture vertical limb involving left temporal and parietal bone. The allegation is that A.1 attacked in the middle of the head of the deceased with „Moddukatti‟. It is to be noted that basing on the medical evidence, especially, relating to the cause of death, the learned Additional Sessions Judge found that the case of death was not on account of injury received by the deceased. Basing on the evidence of P.W.10 that the deceased died of hypovolemic shock as a result of bleeding from stomach and intestine consequent upon administration of antecoagulants, was of the view that the case of death cannot be attributed to the injury caused by A.1. As pointed out as against the exoneration of the present appellant under Section 302 of IPC, there is no appeal filed by the prosecution. Therefore, the ocular testimony of P.W.1 with regard to the head injury caused to the deceased by A.1 has support from the medical evidence i.e., P.W.10 coupled with his opinion about the cause of death according to the postmortem report marked under Ex.P.6.
34) Turning to the overt acts attributed against the present appellant as against P.W.1, it was disbelieved by the 25 learned Additional Sessions Judge on the ground that none of the witnesses speak about the overt acts as against the present appellant as against injury to P.W.1. These findings of the learned Additional Sessions Judge were also not under challenge in the present appeal.
35) Coming to the medical evidence as against the injuries received by P.W.4, there is evidence of P.W.8 and according to P.W.8, she examined P.W.4 on 18.03.2005 at 6-55 p.m., and found one incised would of about ¼ x ¼ centimeter, (depth cannot be probed) over left dorsum of hand. Bleeding was present. Further she found pain and swelling over left dorsum of hand. She further found incised wound of 1 x ¼ centimeter into bone deep over left destal end of thumb medial aspect.
36) It is to be noted that ocular testimony of P.W.4 is that when A1 tried to hack the daughter of P.W.1, aged four months, who was on the cot of the verandah of the house of her father, she tried to avert the said blow and the blow of that „Moddukatti‟ fell on her left hand near thumb. As seen from the injury Nos.1 and 3 they were attributable to the overt acts against A.1. Though injury No.3 appears to be grievous but the learned Additional Sessions Judge did not believe the allegation under Section 326 of I.P.C. against A.1 for causing fracture to 26 P.W.4 because P.W.4 did not explain clearly about the fracture. The learned Additional Sessions Judge found A.1 guilty of Section 324 of IPC originally framed and further found him guilty of Section 324 of IPC as against the original charge under Section 326 of IPC. Hence, the ocular testimony of P.W.4 has support from the evidence of P.W.8 coupled with Ex.P.2-wound certificate of P.W.4. There was consistency between the ocular testimony of P.W.1 and P.W.4 with reference to the medical evidence relating to the injuries caused to the deceased by A.1 and further relating to the injuries caused to P.W.1 by A.1.
37) Now, this court would like to deal with the contentions canvassed by the appellant. It is to be noted that basis for registration of FIR was Ex.P.1-statement. Though it was elicited from the moth of P.W.12 that a statement of the deceased could also be recorded but it was not elicited whether it was prior to Ex.P.1. It is a case where the deceased was taken to hospital with bleeding injuries over the head. It is a case where P.W.1 was conscious by then. Therefore, it was quite natural for the police to record the statement from P.W.1. The basis for registration of FIR was Ex.P.1. Considering the same, the case of the prosecution cannot be thrown out on the ground that the purported statement, if any, recorded from the 27 deceased was not produced before the learned Additional Sessions Judge.
38) P.W.1 and P.W.5 were the natural witnesses because they were husband and wife respectively at the time of incident in their house and further as the place of offence was at the house of them. With regard to the discrepancy as to whether the incident took in the verandah or outside, absolutely, there was no discrepancy at all. The evidence is that when A.1 to A.5 came to the house of the deceased and P.W.1, the deceased asked them to enter into the house. It does not mean that the offence was happened inside the house. As the deceased asked the accused to enter into the house, there was a verbal exchange with regard to the incident on 16.03.2005 and accordingly A.1 was alleged to have picked up „Moddukatti‟ in the verandah and attacked the deceased. Hence, absolutely, there was no discrepancy as to the place of occurrence. The place of occurrence was at the house of P.W.1. It makes no difference whether it was verandah or which is outside verandah.
39) It is to be noted that P.W.5 is no other than the wife of P.W.1. She was a daughter of A.4 and A.5 and sister of A.1 to A.3. She would not have ventured to support the case of the prosecution falsely had the incident been not true. During cross examination of P.W.5, the defence counsel suggested to her that 28 on account of the pressure meted out to her from P.W.1 and his supporters, she deposed false and she denied the said suggestion. It is to be noted that the very allegations in the case of the prosecution is also that when A.1 tried to hack the daughter of P.W.1 and P.W.5, aged four months, who was on the cot in the verandah of their house, P.W.4 intervened and in that process, she received injuries. This allegation was supported by P.W.5 also. The fact that P.W.5 supported the case of the prosecution against her own parents and brothers lends an assurance in the case of the prosecution in my considered view.
40) The line of the defence of the accused is that they agreed to provide dowry to P.W.1 at the time of marriage and the in-laws of P.W.5 used to pressurize her for dowry and that the accused expressed their inability to do so and in that process on 18.03.2005 there was a quarrel between P.W.5 and her husband and in-laws and in that process, the deceased fell down and received injuries. This part of defence was falsified by virtue of the categorical evidence of P.W.5 who deposed that there was never any dowry harassment and her in-laws never demanded her any dowry. Her evidence is that even on 16.03.2005 when her parents came to her and quarreled with P.W.1, his father and asked her to come out with them, but she 29 refused to go along with them. Therefore, it all goes to show that A.1 had no probable reason to brand the evidence of P.W.1 to P.W.5 as false one. Apart from this, the evidence of P.W.6 and P.W.7 is very clear that they were immediate neighbours to the house of deceased and P.W.1. The attack on deceased was preceded by verbal quarrel. Being the neighbours they had every chance to observe as to what was happening at the house of deceased between the deceased, P.W.1, P.W.4 at one hand and A.1 at another hand. P.W.6 and P.W.7 who were the immediate neighbours had no reason to depose false against the accused. No circumstances were brought in, in their evidence to disbelieve the case of the prosecution. Though Ex.D.1 to Ex.D.5 were marked, they were not at all material with regard to the incident in question. In spite of probing cross examination nothing could be elicited from the mouth of P.W.1, P.W.4, P.W.5, P.W.6 and P.W.7 to disbelieve the case of the prosecution insofar as the overt acts attributed against A.1 is concerned, as having made attack on the deceased as well as P.W.4. The learned Additional Sessions Judge appreciated the evidence with care and caution and in that process extended an order of acquittal against A.3 to A.5 and further an order of acquittal against A.1 with regard to the other charges. The investigation was on right lines according to the evidence 30 available on record. The fact that there was observation of the scene of offence and the police duly conducted the inquest over the dead body of the deceased is supported by P.W.9-inquest Panchayatdar.
41) It is a fact that P.W.12 was the person who proceeded to the Government Hospital basing on hospital intimation and recorded the statement of P.W.1. Basing on the statement recorded by P.W.12, P.W.11 registered the same as FIR originally under Section 324 r/w 34 of IPC and took up investigation. P.W.11 spoke about M.O.1 weapon of offence seized at the scene of offence in the presence of P.W.9-mahazar witness. P.W.15 is the Inspector of Police, who continued further investigation after Section of law was altered into Section 302 of IPC.
42) There was a contention raised by the learned defence counsel before the learned Additional Sessions Judge as to the discrepancy with regard to M.O.1. Having considered the evidence on record, this Court does not find any discrepancy because the case of the prosecution is that A.1 picked up M.O.1 which was available in the verandah and made an attack on the deceased. Apart from this, there was a mention in the wound certificate of P.W.1 issued by P.W.8 as if the injuries were alleged to be caused by a rokalibanda. On that count, benefit of 31 doubt was sought to be extended. The learned Additional Sessions Judge made a finding of fact that noting of the weapon of offence as rokalibanda in Ex.P.3 would certificate by P.W.8 must be as stated by somebody other than P.W.1. The above said discrepancies were rightly answered by the learned Additional Sessions Judge.
43) As evident from the judgment of the learned Additional Sessions Judge, he met with all the contentions advanced by the learned defence counsel in an elaborate manner with proper reasons. The Additional Sessions Judge thoroughly appreciated the evidence on record with proper care and caution and extended benefit of doubt against the present appellant under Section 302 of IPC and other charges and further extended benefit of doubt against A.2, A.4 and A.5. By analyzing the evidence with care and caution only, the learned Additional Sessions Judge found the present appellant guilty of the charges under Sections 326 of IPC for causing grievous injuries to the deceased and further 324 of IPC under two counts for causing simple injuries to P.W.4. Under the circumstances, I do not find any reason whatsoever to interfere with the well reasoned judgment of the learned Additional Sessions Judge.
44) Having regard to the above, I am of the considered view that the prosecution before the learned Additional Sessions 32 Judge proved beyond reasonable doubt the charges under Sections 326 and 324 of IPC (under two counts) against the present appellant, as such, the judgment of the learned Additional Sessions Judge with regard to the guilt of the present appellant under the above said charges is sustainable under laws and facts.
45) It is also the contention of the learned counsel for the appellant that the appellant met with an accident and suffered 50% of disability after the judgment and even he is not in a position to walk properly, as such, sentence imposed against the accused may be reduced and that necessary medical certificate is on record. This Court would like to make it clear that the so-called medical certificate cannot be considered without proper procedure. Apart from this, when the appellant was not prosecuting the appeal properly, this Court issued a bailable warrant and in pursuant thereto, the appellant made his appearance before this Court which is evident from the proceedings sheet, dated 25.01.2023. So, the appellant is able to walk. On the ground of so-called disability, this Court is not inclined to reduce the sentence of imprisonment. But, however, the fact remained is that this appeal has been pending since the year 2008. The charges that were proved against the appellant were under Sections 326 and 324 of IPC (under two counts). 33 The learned Additional Sessions Judge imposed sentence of rigorous imprisonment of five years for the charge under Section 326 of IPC and one year rigorous imprisonment each for the charge under Section 324 of IPC (under two counts). The incident in question was admittedly happened on account of verbal exchanges. Having regard to the overall facts and circumstances, I am of the considered view that there are mitigating circumstances to take a lenient view as the incident was happened during verbal exchanges and further the appeal is pending since the year 2008. The ends of justice will meet, if the rigorous imprisonment for 05 (five) years imposed against the accused under Section 326 of IPC is reduced to 03 (three) years.
46) In the result, the Criminal Appeal is allowed in part reducing the sentence of rigorous imprisonment for 05 (five) years to that of 03 (three) years under Section 326 of I.P.C. The rest of the judgment of the learned Additional Sessions Judge shall stand confirmed in all other respects.
47) The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court on or before 19.12.2023 and on such certification, the trial Court shall take necessary steps to carry 34 out the sentence imposed against the appellant (accused) and to report compliance to this Court.
48) Registry is directed to send copy of the order along with original records to the Court below on or before 19.12.2023.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 12.12.2023.
PGR 35 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.555 OF 2008 Note:
Registry is directed to send copy of the judgment along with original records to the Court below on or before 19.12.2023.
Date: 12.12.2023 PGR