Andhra HC (Pre-Telangana)
Rayipalli Paramesu And Ors., Etc. vs State Of Andhra Pradesh on 6 July, 1993
Equivalent citations: 1993(2)ALT(CRI)374, 1994CRILJ931
JUDGMENT G. Radhakrishna Rao, J.
1. A-5 to A-8, A-11 and A-12 are the appellants in Criminal Appeal No. 658 of 1992 and A-1 to A-4 and A-9 and A-10 are the appellants in Criminal Appeal No. 747 of 1992. All the accused were tried by the Additional Sessions Judge, Vizianagaram, for offences punishable under sections 147, 148, 302 and 302 r./w. 149, I.P.C. and ultimately A-1, A-2 and A-3 were convicted for the offence under S. 148, I.P.C. and each of them was sentenced to undergo rigorous imprisonment for one year; A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11 and A-12 were convicted for the offence under S. 147, I.P.C. and each of them was sentenced to undergo rigorous imprisonment for six months; A-1, A-2 and A-3 were convicted for the offence under S. 302, I.P.C. and A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11 and A-12 were convicted for the offence under S. 302, r/w. 149, I.P.C. and A-1 to A-3 and A-4 to A-12 were sentenced to undergo imprisonment for life. All the sentences were directed to run concurrently.
2. The case of the prosecution, in brief, is as follows :-
One Ganta China Veerayya, hereinafter referred to as the 'deceased', is a resident of Chinna Buddidi village and was working as village watchman of Pedda Buddidi. P.W. 2 is the wife of the deceased. A-1 to A-10 were the employees working under the arrack contractors of Parvatipuram. A-11 to A-12 were working as Excise Constables at Parvatipuram. A-1 is said to be the leader of the raid party, and A-2 to A-10 were working under him to detect the illicit arrack distillation. The accused suspected that the victim was aware of the illicit distillation of arrack. On 2-5-1991 all the accused were searching for the illicit distillation of arrack in the outskirts of Pedda Buddidi. At about 10.00 a.m. the deceased accompanied by his wife and their young child reached the outskirts of Peda Buddidi from China Buddidi on a foot-path. By the time they reached 'Devudu Manyam' near Nagavali main canal, the accused demanded the deceased to disclose the places where the illicit distillation of arrack was being done. The deceased answered that he did not know anything. All the accused formed themselves into an unlawful assembly with the common object of murdering the deceased. In pursuance of their common object, A-11 and A-12 kicked the victim-deceased with shoes and A-1, A-2 and A-3 threw the deceased on the ground and pressed him with stout sticks. A-4 to A-10 kicked and fisted the victim. The victim died instantaneously. The accused carried the dead body of the deceased and threw it in the nearby fields of P.W. 3. P.W. 1 went to Parvatipuram Taluk Police Station and gave a statement, Ex. P.19, which was recorded by P.W. 18 at about 5.00 p.m. on 2-5-1991. P.W. 18 registered the same as a case in Crime No. 51-91 and sent the F.I.R., which is marked as Ex. P.20, along with Ex. P.19 to the Addl. Judicial First Class Magistrate, Parvatipuram. P.W. 19 Inspector of Police, Parvatipuram, who received the express F.I.R. in Crime No. 51/91, took up investigation and examined P.W. 1 and recorded his statement Ex. P.1 under S. 161(3), Cr.P.C. On 2-5-1991 he reached Peda Buddidi at 7.30 p.m. and examined P.Ws. 2 and 3 and another, between 8.00 and 9.00 p.m. On 3-5-1991 he visited the scene of offence and prepared a rough sketch of the scene of offence, Ex. P.21, and also got Exs. P.15 to P.17 photoes taken by P.W. 15. He held inquest over the dead body of the deceased in the presence of the Panchayatdars including P.Ws. 8 and 14. He examined P.Ws. 1 to 4 at the inquest. He also seized M.Os. 1 to 3 during inquest under Ex. P.7 inquest report. Thereafter, he sent the dead body of the deceased to the Government hospital for postmortem examination. P.W. 16 Civil Assistant Surgeon, Government Hospital, Parvatipuram conducted postmortem examination over the dead body of the deceased from 3.00 p.m. to 5.00 p.m. on 3-5-1991 and found huge contusion over right side of neck extending from lower jaw down to collar bone up to supra sternal notch, one contusion over the upper portion of right buttock, and one contusion over the upper portion of left buttock. The doctor opined that all the injuries are ante-mortem in nature and all injuries could have been caused by blunt objects and injury No. 1 is fatal in nature. The doctor also pointed that the deceased would appear to have died of asphyxia due to compression over neck, and that injury No. 1 is sufficient to cause the death in the ordinary course of nature. According to the doctor injuries 1, 2 and 3 could be caused with sticks, hands and legs. Ex. P.18 is the postmortem examination certificate issued by the doctor. P.W. 19 the Inspector of Police arrested A-1, A-4, A-7, A-8, A-9, A-10, A-5, A-3, A-6 and A-12 3-5-1991. After completion of investigation into the case, charge sheet was filed.
3. In support of the case of the prosecution, P.Ws. 1 to 19 were examined and Exs. P.1 to P.25 and M.Os. 1 to 3 were marked. After the closure of the evidence for the prosecution, the accused were examined under S. 313, Cr.P.C. The plea of the accused in one of total denial. A-11 pleaded alibi and in support of his plea of alibi he got D.W. 1 examined and Exs. D.1 to D.3 marked.
4. Out of the witnesses examined on behalf of the prosecution, P.Ws. 1, 3 to 7 and 9 to 14 have turned and they did not support the case of the prosecution. So, in view of the hostile nature of the evidence that has been exhibited by the witnesses, which was relied upon by the prosecution, it is contended by the learned counsel for the accused that the sole testimony of P.W. 2 cannot be accepted.
5. First of all, let us consider the effect of Ex. P.19 statement of P.W. 1, recorded by P.W. 18. In this connection we may also look into the evidence of P.W. 18 Head Constable, Parvatipuram Rural Police Station who recorded the statement of P.W. 1. He deposed that on 2-5-1991 at about 5.00 p.m. while he was in charge of Parvatipuram Taluk P.S., he recorded the statement of P.W. 1 in Parvatipuram Rural P.S., that he read over the contents of the statement to P.W. 1 and admitted by him, that P.W. 1 affixed his thumb mark and it is marked as Ex. P.19. Now coming to the evidence of P.W. 1, who, as already stated, was declared hostile, has given a complete go by to the version given by P.W. 18 and stated that the police did not examine him and did not record his statement. In his cross-examination by the Additional Public Prosecutor he has stated that the Head Constable did not record his statement. He completely denied the giving of a statement before the Head Constable (Ex. P19) and also the contents of Ex. P.1 statement recorded by P.W. 19 Inspector of Police under S. 161(3), Cr.P.C. He has also stated that he stated in his S. 164, Cr.P.C. statement at the instance of the police. A close scrutiny of the evidence of P.W. 1 does not inspire confidence. Nothing is elicited against P.W. 18 Head Constable and no motive is attributed to him why he should fabricate an important document like Ex. P.19. His evidence clearly discloses that P.W. 1 came to his police station at about 5.00 p.m. and P.W. 18 recorded his statement Ex. P.1. He also stated that he read over the contents of that statement to P.W. 1 and admitted by him and P.W. 1 affixed his thumb mark. On a careful scrutiny of the evidence of P.Ws. 1 and 18 coupled with Ex. P.1 statement, we are of the firm opinion that P.W. 1 has given the statement Ex. P.1 and he has resiled from it while he gave evidence, on oath, in court. In grave crimes registered for the offence under S. 302, I.P.C. etc., as in the present case, if the prime witness resiles from his earlier statement given before the police basing on which a case is registered, no case will stand and there will be no fear in the minds of wrongdoers. Persons who gave the statements which lead to the registration of the crime and subsequently resiled from their earlier statement and gave contraversion on oath in court should not be let off and they must necessarily visit with penal consequences. In the present case, either the original statement Ex. P.19 must be wrong or the deposition given by him in court on oath must be wrong. In either way he is responsible for giving false statement or false evidence on oath. Unless such persons are taken to task, it is very difficult for the criminal justice to go in a smooth way. Therefore, we direct the Chief Judicial Magistrate, Vizianagaram to initiate proceedings against P.W. 1 for giving false evidence in court, so that it will teach a lesson to the like-minded persons.
6. Now, coming to the evidence on record, we are having the evidence of P.W. 2, who is an innocent poor Harijan lady. She deposed that on the date of offence herself and her husband, the deceased, and their last female child started in China Buddidi at 8.00 a.m. to go to Peda Buddidi. By the time they reached Devudu Manayam the raid party came opposite to them and questioned them where the illicit arrack was being manufactured. The deceased answered that he did not know the names of the illicit arrack distillators. Thereupon, A-1 to A-4 threw the deceased on the ground and pressed his neck with two sticks, one stick was placed on the left side of the neck and one stick was placed on the right side of the neck by crossing each other. Again A-1 to A-4 pressed the deceased with sticks placing one stick on the chest and another stick on his back. The other raid party people and excise constables, two in number, beat her husband with legs and fisted her husband with their hands. She raised and requested them not to kill the deceased but they pushed her aside. According to P.W. 1, though some persons were working in the field, they did not come to the rescue of her husband being afraid of the raid party and excise constables. She, however, stated that P.W. 1 came to her. She further deposed that her statement under S. 164, Cr.P.C. was recorded by the Addl. Judicial Magistrate of the First class, Bobbilli.
7. As already stated, P.W. 2, the wife of the deceased, attributed overt acts to A-1 to A-4, as per her evidence given in court. However, in her re-examination she stated that by mistake she deposed the name of A-4 in court and that she did not mention the names of A-4 to A-12 in her S. 164, Cr.P.C. statement. Even in her S. 161, Cr.P.C. statement, Ext. P.1 also, she stated that A-1 to A-3 pushed down the deceased and pressed him with sticks. We, therefore, hold that there is consistency with regard to the acts committed by A-1 to A-3 alone.
8. As already stated P.Ws. 1, 3 to 7, 9 to 14 have turned hostile. We have also referred to the evidence of P.W. 1 and come to the conclusion that he has resiled from his earlier version given in Ex. P.1. P.W. 3 Karri Kannamnaidu, though turned hostile, admitted in his evidence that he gave statement under S. 164, Cr.P.C. before the Magistrate. His statement recorded under S. 164, Cr.P.C. reveals that on the date of offence when he was grazing his cattle, he saw that the dead body of the deceased was being brought by 12 persons and they were throwing the same by the side of his land, that he objected for it and caught hold of A-7 and took them to the village and when questioned by the villagers A-7 stated what had happened. He denied having stated before the police that all the accused were bringing a dead body from the other side of the Nagavali canal towards his land. He denied having stated to the police as in Ex. P.2. P.W. 4 Simhadri Simhachalam is also a resident of China Buddidi village. He has deposed on his evidence that he saw the raid party people at a distance of about 3 to 4 yards, that the raid party consisted of 8 or 9 persons. He denied the police having recorded his statement. However, he admitted that his statement under S. 164, Cr.P.C. was recorded by the Addl. Judl. First Class Magistrate, Bobbili before whom he stated that by the side of their village there is a Godda, that when he was cutting the sticks, the deceased was being chased by the raid party and behind them there were two Jamanulu and his wife was weeping. As already stated, this witness was declared hostile by the prosecution. In his cross-examination he denied having stated before the police as in Ex. P.3. P.W. 5 Noori Appalasuri alias Tata deposed that on the date of offence when he was attending to the removal of the waste plants in his jute crop field called Demudu Manyam he heard cries 'not to beat' and P.W. 2 cried and that he saw only P.W. 2. He admitted that his statement under S. 164, Cr.P.C. was recorded by the Magistrate. In his cross-examination by the Addl. Public Persecutor he denied having stated before the police as in Ex. P.4. P.W. 6 Avu Satyamnaidu is also a hostile witness who denied having stated before police as in Ex. P.5. P.W. 7 is also a hostile witness. He stated that the dead body of the deceased was lying on a vacant site near Nagavali canal by the side of Goyyamanu Banta and he saw the dead body at about 10 or 11 a.m. He denied having stated before the police as in Ex. P.6.
P.W. 8 Guarana Suryanarayana Naidu deposed that he is one of the village elders of Pedda Buddidi. He deposed that about more than an year ago (prior to his giving evidence in court) at about 9 or 10 a.m. while he was near his rice mill P.W. 1, P.W. 3, Karri Govinda and Seemala Gowrinaidu told him that after killing the deceased and while throwing the dead body near Goyyimanubanta and were running away, they caught hold of A-4, A-7, A-8. They also told him that 4 or 5 people of raid party and two excise constables ran away. According to him, A-4, A-7 and A-8 were produced before him, and after a lapse of 1 1/2 hours the villagers produced another 4 or 5 persons before him. The persons produced before him told him the names of the raid party and also the exise constables. P.W. 8 is one of the inquest Panchayatdars, and Ex. P.7 is the inquest report which was attested by him.
9. P.W. 9 Korati Jan Tyagaraju was the Excise Inspector, Parvatipuram and he deposed that on 2-5-1991 he started along with A-11, A-12, Kumara Swamy and Venkata Naidu in a van at about 6 a.m. from Parvatipuram and reached China Buddidi at about 8.00 a.m. Along with them, A-1 to A-10 also followed them in the van. He deposed that himself, A-1 to A-12, Venkatanaidu, Kumaraswamy reached China Buddidi by 8.00 a.m. According to him, while the above persons were conducting raid for detecting illicit arrack distillation, he heard that the raid people and excise constables murdered a person. This witness was also treated as hostile and was cross-examined. In his cross-examination he denied having stated before the police as in Ex. P.8. P.Ws. 10 and 11 are also working as Excise Constables and though they admitted the raid conducted on the date of offence, they denied having stated before the police as in Exs. P.9 and P.11 respectively. P.Ws. 12 and 13 are residents of Pedda Buddidi village and they did not support the case of the prosecution and they were declared as hostile and were cross-examined by the prosecution. They have denied having stated before police as in Exs. P.13 and P.14. P.W. 14 is the Sarpanch of Ankavaram and China Buddidi is the hamlet of Ankavaram. He was present at the time when the Inspector of Police conducted inquest over the dead body of the deceased and he attested Ex. P.7. However, in his cross-examination by the defence counsel he stated that the inquest was not held near the dead body and Ex. P.7 was not written in the mango garden. Consequently this witness was also treated as hostile.
10. Thus, even from a careful analysis of the hostile evidence of the above witness, it is clear that a raid was conducted on the date of offence and the deceased died. P.W. 8 was not declared hostile. His evidence shows that P.W. 1 and P.W. 3 told him that the deceased was beaten with sticks and his neck was pressed with sticks. According to him, A-4, A-7 and A-8 were produced before him and after 1 1/2 hours thereafter A-1, A-3, A-5, A-6 and A-8 to A-10 were also produced before him.
10A. As already stated above, P.W. 2 is an innocent harijan lady. She gave evidence on oath which is consistent and her evidence clearly establishes that while they were proceeding, more than 10 persons came to them and asked about the names of persons who are conducting illicit distillation. When the deceased pleaded ignorance he was pressed with sticks placing on his neck and chest. So far as A-1 to A-3 is concerned, P.W. 2 is definite from the beginning and her statements given under sections 161(3), and 164, Cr.P.C. and the evidence given in court is consistent with regard to the participation of these three accused, viz., A-1 to A-3. The trial Court also has given cogent reasons for accepting the evidence of P.W. 2 as against A-1 to A-3 are concerned. On an independent assessment of the evidence of P.W. 2 by us also we found that she is a reliable witness. However, she being an illiterate village rustic there are some minor discrepancies which cannot be taken into account. No doubt, the other witnesses for the reasons best known to them have turned hostile. Even their evidence also proves that there was a raid conducted on the date of offence.
11. The medical evidence also corroborates the injuries spoken to by P.W. 2. P.W. 16 Civil Asstt. Surgeon, Government Hospital, Parvatipuram deposed that on a requisition from the Inspector of Police, Parvatipuram he conducted autopsy over the dead body of the deceased and he found one huge contusion over right side of neck extending from lower jaw down to collar bone up to supra sternal notch, one contusion over the upper portion of right buttock, horizontal in position and one contusion over upper portion of left buttock which is also horizontal in nature. According to the doctor all the injuries are ante-mortem in nature and all injuries could have been caused by blunt objects. The doctor is of the opinion that the deceased would appear to have died of asphyxia due to compression over neck. The evidence of P.W. 2 is to the effect that one stick was placed on the left side of the neck and one stick was placed on the right side of the neck by crossing each other and the neck of her husband was pressed with those sticks. It is also her case that one stick was placed on the chest and another stick was placed on his back and they were pressed, and that the deceased died due to crush injuries. Thus, the medical evidence amply corroborates the evidence of P.W. 2 and it is proved that the death of the deceased is on account of the injuries sustained by him and the death of the deceased is homicidal in nature.
12. Mr. C. Padmanabha Reddy, learned counsel for the accused has contended that there is some discrepancy with regard to the injuries found by the doctor and the injuries spoken to by P.W. 2. We do not see much force in this contention. It must be seen that the deceased has fallen on one side and the sticks were pressed on one side and so there may not be much pressure on the other side. There is much pressure on the right side because of the pressing of sticks and so the injury as is found on the right side would be the natural one. There is no inconsistency with regard to the same. The other injury spoken to by P.W. 2 is on the chest. There is ample corroboration forthcoming to the natural evidence of P.W. 2 who is no other than the wife of the deceased. She being the ultimate victim she having lost her better-half she would not spare the real culprits and falsely implicate innocent persons.
13. The evidence of P.W. 2 coupled with other circumstance amply establishes the part played by A-1 to A-3 alone and there is no legal evidence against A-4 to A-12. But at the same time there may be some more persons known who have participated in the occurrence along with A-1 to A-3 and simply because the evidence on record does not bring home the guilt of A-4 to A-12, the evidence so far as A-1 to A-3 is concerned is acceptable. Therefore, A-4 to A-12 alone are entitled to benefit of doubt while A-1 to A-3 are liable and responsible for causing the injuries to the deceased which resulted in his death.
14. Therefore, the conviction of A-1 to A-3 for the offences under Ss. 148 and 302, I.P.C. and the sentence of R.I. for one year for the offence under S. 148, I.P.C. and the sentence of imprisonment for life for the offence under S. 302, I.P.C., imposed on each of A-1 to A-3 are confirmed and Criminal Appeal No. 747 of 92 in so far as it relates to A-1 to A-3, is dismissed and the judgment of the trial Court in so far as it relates to A-1 to A-3 is confirmed. The convictions of A-4 to A-12 for the offences under sections 147 and 302, r./w. 149, I.P.C. and the sentence of R.I. for six months for the offence under S. 147, I.P.C. and the sentence of imprisonment for life for the offence under S. 302 r/w. 149 I.P.C. imposed against each of A-4 to A-12 are set aside and Criminal Appeal No. 658/92 preferred by A-5 to A-8, A-11 and A-12 and Criminal Appeal No. 747/92 so far as it relates to A-4, A-9 and A-10 are allowed and the judgment of the trial court so far as A-4 to A-12 is concerned is set aside. A-4 to A-12 are acquitted of the charges under Sections 147 and 302 r/w. 149, I.P.C. and they are set at liberty forthwith if they are not required in any other case. The Chief Judl. Magistrate, Vizianagaram is directed to initiate proceedings against P.W. 1 for giving false evidence.
15. Order accordingly.