Andhra Pradesh High Court - Amravati
The State Of A.P., Rep By Pp., vs Kanapala Naga Raju Bulli Gunda And 6 ... on 25 July, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
THE HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CRIMINAL APPEAL Nos.359 of 2010 and 843 OF 2013
COMMON JUDGMENT:(Per Hon'ble Acting Chief Justice C.Praveen Kumar) Criminal Appeal No. 359 of 2010 is filed by accused No.1 against his conviction in S.C.No.541 of 2007 on the file of I Additional District and Sessions Judge, Guntur, while Criminal Appeal No.843 of 2013 is filed by the State against the acquittal of all the accused for the offence punishable under Section 302 read with 149 of Indian Penal Code (for short "I.P.C."). Accused No.1 was convicted for the offence punishable under Section 326 of I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default simple imprisonment for one month. Accused No.1 was also convicted and sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of I.P.C. for causing injuries to P.Ws.3 to 5 and 9. Though accused No.2 was sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of I.P.C. for causing injuries to P.Ws.1 and 9, he has not preferred any appeal.
The facts as culled out from the evidence of prosecution witnesses are as under:-
Accused Nos.1, 2, 5 to 7 are residents of Kolluru Village, while accused No.3 is a resident of Kankadapalem village. Accused No.4 is a resident of Challapalli of Krishna District, but at the time of incident, he was residing at Kolluru village. P.W.1 - Aluri Kalyani is the wife of the deceased Suresh. P.W.3 - Aluri Peda Koteswara Rao is the father- in-law of P.W.1. P.W.4-Aluri Sumathi, P.W.5-Aluri Neeraja, P.W.6- 2 HACJ & MSMJ crlas_359_2010 and 843_2013 Lanka Jeevan are residents of the same area. One Chilaka Rani was residing with her children at Kolluru, while her husband was working in C.R.P.F. She suspected the involvement of accused No.1 in teasing her on phone. In that connection, she lodged a report with the police.
Later, elders intervened and compromised the issue. Ever since then the accused bore grudge against the family members of the deceased for supporting the said Chilaka Rani. Two months prior to the incident, while P.W.3 was returning from the hospital on a cycle, accused No.1 abused him and fisted him on his face. Then, they lodged a report with the police, which led to filing of a charge sheet in the year 2004. Since then all the accused bore grudge against the deceased and others. While things stood thus, on the intervening night of 06/07.04.2007 at 01.30 a.m. all the accused came to the house of P.W.9; beat P.W.14 and P.W.9. On hearing their cries, P.Ws.4 and 5 came to their rescue, but they were also beaten by the accused. It is said that accused Nos.1 and 2 beat P.W.9 with sticks. Immediately, thereafter the injured were shifted in an Auto to Government Hospital, Tenali, and from there to Government Hospital, Guntur for better treatment. From the house of P.W.9, the accused proceeded towards the house of P.W.1. At that time P.W.3 was sleeping outside the house while P.W.1 and other family members were sleeping inside the house. It was 02.30 a.m. in the night. On seeing them, P.W.3 raised cries. On hearing the same, P.W.1 and the deceased opened the doors, came out of the house and found all the accused beating P.W.3 with stout sticks. When the deceased tried to intervene, accused No.1 beat him with a stick on the left side of the head and accused No.2 beat him with a stick on his head. Accused No.2 also beat P.W.1 with a stick when she tried to intervene, as a result of which, P.W.1 fell down and raised cries. The deceased 3 HACJ & MSMJ crlas_359_2010 and 843_2013 became unconscious and died in between 04.30 to 05.00 a.m. All the accused beat P.W.3 indiscriminately. The neighbours came there and shifted P.W.3 to Tenali Government Hospital in ambulance. P.Ws.9, 14, 4 and 5 were also brought to Government Hospital, where they disclosed about the accused attacking them. After the incident P.W.1 proceeded to the police station and lodged a report with the Sub- Inspector of Police, which came to be registered as a case in Crime No.33 of 2007, Ex.P.19 is the F.I.R. He informed P.W.16, the Inspector of Police about the registration of Ex.P.19, the F.I.R. P.W.16 - C.I of police went to Kolluru Police Station, received a copy of F.I.R. and proceeded to the scene of offence, which is situated opposite to the house of Aluri Kotesu. He got prepared an observation report in the presence of mediators and also got photographed the scene of offence. Ex.P.20 is the photos of the first scene of offence along with corresponding negatives. He seized M.O.6 - Blood stained white colour bed sheet, M.O.7-yellow colour blood stained shirt, M.O.8-Grey colour blood stained pant, M.O.9-Blood stained white towel, M.O.10- Blue and white stripes shirt, M.O.11-Yellow Colour towel, M.O.12- Pillow, M.O.13-Yellow Colour nylon shirt, M.O.14- cotton tape, M.O.15-controlled brick, M.O.16-Blood stained Napa stone, M.O.17- Controlled Napa Stone, M.O.18-Blood stained earth, M.O.19- controlled earth under Ex.P.11 - observation report. Since the incident occurred at the house of P.W.9, at the first instance, he prepared a rough sketch of the first scene of offence vide Ex.P.21. He then proceeded to the house of P.W.1 and got photographed the scene. Ex.P.22 is the photos of second scene of offence. He also seized M.O.20-blood stained earth, M.O.21-controlled earth. Later, he got prepared Ex.P.23, the rough sketch of second scene of offence. Thereafter, he went to Government Hospital, Tenali, along with 4 HACJ & MSMJ crlas_359_2010 and 843_2013 mediators and recorded the statements of P.Ws.1,3,4,5,6,7 and 8. He also conducted inquest over the dead body of the deceased. Ex.P.10 is the inquest report. During inquest, inquest panchadars opined that the accused are responsible for the murder of the deceased due to previous enmity. Later, he sent the dead body for post-mortem examination. Where P.W.11, the Civil Assistant Surgeon, conducted autopsy over the body and issued Ex.P.9 the Post-mortem certificate. P.W.10, the Civil Assistant Surgeon as examined P.W.1, P.W.3, P.W.4, P.W.5, P.W.9, P.W.14 and issued wound certificates Exs.P.3, P.4, P.5, P.6, P.7, and Ex.P.8 respectively. On receipt of information that some of the accused are moving in village, P.W.16 secured the presence of P.W.12 and arrested accused Nos.2,5,6 and 7 who confessed about commission of offence. Ex.P.14 is the admissible portion in confession report, which lead to recovery of weapon. On 26.04.2007, on receipt of reliable information, he proceeded to brick kiln of Srinivasa Rao and arrested accused Nos.1 and 4, both of them confessed about the commission of offence. In pursuant to the confession made by the accused, P.W.16 seized M.Os.1 and 2 sticks. After receipt of Ex.P.9 - Post-mortem report and Ex.P.24 - R.F.S.L. report, he filed a charge sheet against the accused before the Court of II Additional Munsif Magistrate, Tenali, which was taken on file as P.R.C.No.139 of 2007, who after complying with Section 207 Cr.P.C., committed the case to the Sessions Division under Section 209 of Cr.P.C. On committal, the same came to be numbered as S.C.No.541 of 2007.
Basing on the material available on record, a charge under Section 147 of I.P.C. against accused Nos.1 to 7, Section 324 of I.P.C. against accused No.1, Section 324 read with 149 of I.P.C. against accused Nos.2 to 7, Section 324 read with 149 of I.P.C. against accused Nos.1 to 7, Section 324 of I.P.C. against accused 5 HACJ & MSMJ crlas_359_2010 and 843_2013 Nos.1, 5 to 7, Section 324 read with 34 of I.P.C. against accused No.1, Section 324 read with 149 of I.P.C. against accused Nos.2, 3 to 7, Section 302 read with 149 of I.P.C. against accused Nos.1 to 7 came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
To substantiate its case, the prosecution examined PWs.1 to 16 and got marked Exs.P.1 to P.24 and M.Os.1 to 21. After the closure of evidence, the accused was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them, in the evidence of the prosecution witnesses, to which they denied. No oral or documentary evidence was adduced on behalf of the accused.
Relying upon the evidence of prosecution witnesses, the learned Sessions Judge convicted accused No.1 for the offence punishable under Section 326 of I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default simple imprisonment for one month. Accused No.1 was also sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of I.P.C. for causing injuries to P.Ws.3 to 5 and 9. Accused No.2 was sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of I.P.C. for causing injuries to P.Ws.1 and 9. Challenging the conviction of accused No.1, the Criminal Appeal No.359 of 2010 came to be filed. Assailing the acquittal of the accused for the offence punishable under Section 302 read with 149 of I.P.C., State has preferred Criminal Appeal No.843 of 2013.
Sri K.Jyothi Prasad, learned counsel for the appellant-accused No.1 in Criminal Appeal No.359 of 2010 would contend that when there was a compromise in respect of earlier incident, which is now 6 HACJ & MSMJ crlas_359_2010 and 843_2013 said to be motive for the present case, it is unlikely to believe that the accused would have attacked the deceased and some of the prosecution witnesses because of the earlier incident. He further pleads that since the evidence of all the witnesses being interested, the same cannot be given due weight in the absence of any corroboration from the independent quarters.
Smt.A.Gayatri Reddy, learned counsel appearing for the respondents/accused in Criminal Appeal No.843 of 2013 would contend that in view of the discrepancies in the evidence of all the witnesses and since no person specifically spoke about the participation of accused Nos.3 to 6 in the incident, the judgment of the trial Court needs no interference and prayed to dismiss Criminal Appeal No.843 of 2013.
Sri K.Srinivas Reddy, learned Pubic Prosecutor representing the State would contend that the evidence P.Ws.1 and 3 was not properly considered by the trial Court. According to him, if the evidence of P.Ws.1 and 3 is taken into consideration, all the accused are liable to be convicted for the offence punishable under Section 302 read with 149 of I.P.C. It is his plea that P.Ws.1 and 3 in their evidence deposed that all the accused beat the deceased indiscriminately which remained un-shattered in the cross-examination. He further contends that the presence of the witnesses at the time of incident cannot be doubted since all of them received injuries in the same incident and they have specifically stated as to the names of persons who beat them. Hence, the presence of the witnesses at the time of incident stand established and their evidence can be accepted to show that all the accused participated in the commission of offence. He urged to convict all the accused for the offence punishable under Section 302 read with 149 of I.P.C.
7 HACJ & MSMJ crlas_359_2010 and 843_2013 The point that arises for consideration in this appeal is:
"Whether the trial Court was justified in acquitting the accused for the offence punishable under Section 302 read with 149 of I.P.C. and Whether the trial Court has rightly convicted accused Nos.1 and 2 for the offence punishable under Section 326 and 324 of I.P.C. respectively?"
P O I N T:
As seen from the record, the prosecution mainly relied upon the evidence of P.Ws.1, 3, 4, 5, 6 and 7 to support their case. P.W.1 is the wife of the deceased Suresh. She in her evidence deposed that the deceased is her husband and that on 07.04.2007 at 02.30 a.m. she heard cries of her father-in-law,P.W.3, who was sleeping outside. Immediately she came out of the house and noticed all the accused beating P.W.3. When the deceased tried to intervene, accused No.1 beat him with a stick on the left side of the head and accused No.2 beat him with a stick on the head. When she tried to intervene, accused No.2 beat her with a stick on her head. The deceased became unconscious. Her evidence shows that accused Nos.3 to 7 beat her husband (deceased) and P.W.3 indiscriminately. Thereafter, her husband was shifted to Tenali Government Hospital. In the cross- examination, she admits that she cannot say which of the accused was armed with M.Os.1 and 2 - sticks. She denied the suggestion that she did not state in Ex.P.1 that the accused beat her husband with stick on his head. She admits that she stated before the police that accused No.1 beat her husband with a stick indiscriminately and she cannot say which of the accused beat on what part of the body of the injured. She further admits that she cannot say the particulars of the neighbours who gathered there on hearing the cries. She categorically
8 HACJ & MSMJ crlas_359_2010 and 843_2013 states that, she disclosed the name of accused No.1 alone, since she could not recollect the names of other accused. The entire incident was over within ten minutes. She further admits that she has been living in the village since six years prior to the death of the deceased and that she knows all the accused.
If the admissions of P.W.1 in the cross-examination are tested with her evidence in chief, a doubt arises as to whether she is speaking truth in so far as participation of accused Nos.3 to 7 in the incident. If really, she has been living in the village since six years, definitely, she must be knowing their names. That being the position, she would have disclosed the names of other accused to the police. Her categorical admission that she disclosed the name of accused No.1 before police throws any amount of doubt as to whether accused Nos.3 to 7 participated in the commission of offence.
P.W.3 is the father of the deceased. In his evidence, he deposed that on the intervening night of 06/07.04.2007 at about 2:30 midnight while he was sleeping outside the house, accused Nos. 1 to 7 came to his house and accused No.1 beat him with a stick. Accused Nos.2 to 7 beat him with sticks on other parts of body and on right shoulder. Immediately, he raised cries and on hearing the same, the deceased came out of the house to rescue him. P.W.3 further states that, accused No.1 attacked and beat him with a stick on his head. When P.W.1 intervened, accused No.2 beat her with a stick while the remaining accused beat the deceased indiscriminately. However, in the cross-examination, P.W.3 admits that since all the accused beat him at once, he cannot specify which of the accused beat him and also the portion of the body where they were beaten. He further admits that, he did not state to the doctor that he was beaten by four known persons while he was sleeping. His evidence, in our view, may 9 HACJ & MSMJ crlas_359_2010 and 843_2013 not inspire confidence, as his evidence did not specify the overt acts of accused Nos.3 to 7. He says that the incident took place while he was sleeping and after the first incident, he woke up. Though P.W.3 states that accused Nos.2 to 7 beat him on other parts of the body, the medical evidence does not tally with his oral evidence. The medical evidence only refers to two contusions and two lacerations on P.W.3. If, really, accused Nos.2 to 7 beat P.W.3, along with accused No.1 indiscriminately, P.W.3 would have sustained more injuries.
As observed earlier, the prosecution mainly relied on the evidence of P.Ws.1 and 3. Both witnesses in their evidence admit that the deceased was beaten by accused No.1 with stick. But, P.W.11, the doctor, who conducted postmortem over the dead body of the deceased states that he noticed ten external and four internal injuries which are abrasions and contusions and the death was due to multiple injuries. But in the cross-examination, the Doctor admits that death was due to external injury Nos.1 to 3, which are on head. He also states that death was due to injury to lung and spleen injury. Apart from the above, the doctor admits that the injuries on the body are due to dragging. His evidence as to the cause of death is not consistent. Therefore, we feel that the Trial Court rightly convicted accused No.1 for the injuries caused by him on the head of the deceased, since, the participation of other accused with regard to attack on the deceased, is doubtful having regard to the admission made by P.W.1 in her cross-examination.
P.Ws.4,5,6 and 9 were examined to speak about the first incident. According to P.W.4, she heard the cries from the house of P.W.9 during midnight and on hearing the same, she came out of the house along with her daughter. Then, accused No.1 beat her with a stout stick on her head, as a result of which, she received injury and 10 HACJ & MSMJ crlas_359_2010 and 843_2013 fell down. Thereafter, the other accused beat her indiscriminately with stout sticks. The doctor issued Ex.P.5 - wound certificate which shows two lacerations, which again falsifies the evidence of P.W.4, as she deposed that she fell down after receiving injury.
P.W.5 in her evidence, deposed that on the intervening night of 06/07.04.2007, she came out of the house on hearing the cries from the house of P.W.9. Then accused No.1 beat her with stick on her left hand, as a result of which, she sustained fracture and fell down.
Evidence of P.W.6 would show that on the intervening night of 06/07.04.2007 at about 2:30 AM, he came to the house of P.W.1 and noticed the deceased, P.W.1 and 3 lying with injuries. On enquiry, P.W.1 informed him that she and others were beaten by the accused. Immediately, he took the deceased, P.W.1 and P.W.3 to the government hospital.
From the evidence of P.W.7 it appears that he is not an eyewitness to the incident.
The first incident took place at the house of P.W.9. According to him, all the accused came to his house on the intervening night of 06/07.04.2007 at 2.30 a.m. and beat him and one Venkateswarlu. When they raised cries, P.Ws. 4 and 5 came to their rescue. According to him, accused Nos.1 and 2 beat him with sticks. Immediately, they were shifted to Government Hospital, Tenali and from there to the Government Hospital, Guntur for better treatment. Ex.P.7 is the wound certificate of P.W.9. The doctor found two lacerated injuries and one contusion above the left fore-arm. He also opined that the said injuries are simple in nature and might be caused by hard blunt object and age of the injuries is below six hours prior to his examination. X-Ray of P.W.9 was also taken, which does not show any bone injury.
11 HACJ & MSMJ crlas_359_2010 and 843_2013 The evidences of P.Ws.4,5,6 and 9 makes it clear that they did not specifically depose about the participation of all accused in the attack on the deceased. P.Ws.1 and 3 did not speak about the individual overt acts of each accused, but refer to participation of accused Nos.1 and 2 in attacking them. P.W.1 deposed that accused Nos.1 and 2 beat the deceased with a stick on his head. According to P.W.3, accused No.1 beat the deceased with a stout stick on his head while the remaining accused beat the deceased indiscriminately. As stated by us earlier, P.Ws. 4 and 5 were beaten by accused No.1, while P.W.9 was beaten by accused Nos.1 and 2 indiscriminately all over the body. Since the specific overt acts are attributed against accused Nos.1 and 2 only with regard to attack on the deceased and as the evidence of doctor is not consistent with regard to cause of death, we feel that the trial Court was justified in convicting the accused No.1 for the offence punishable under Section 326 of I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default simple imprisonment for one month and also sentenced him to undergo rigorous imprisonment for one year for the offence punishable under Section 324 of I.P.C. for causing injuries to P.Ws.3 to 5 and 9. The trial court also convicted the accused No.2 for the offence punishable under Section 324 of I.P.C. and sentenced to undergo rigorous imprisonment for one year for causing injuries to P.Ws.1 and 9, while acquitting accused Nos.3 to 7.
Therefore, the finding of the Trial Court does not call for any interference of this Court and none of the grounds raised by the learned counsel for the appellant and learned Public Prosecutor are sufficient to reverse or set-aside the findings recorded by the Trial Court. Hence, we find no merit in the contention of the learned 12 HACJ & MSMJ crlas_359_2010 and 843_2013 counsel for the appellant and learned Public Prosecutor. Consequently, the criminal appeals fail and the same are liable to be dismissed. Accordingly, the point is answered.
In the result, both the criminal appeal Nos.359 of 2010 and 843 of 2013 are dismissed, confirming the conviction and sentence recorded against the appellant-accused No.1 in Sessions Case No.541 of 2007 by the I Additional District and Sessions Judge, Guntur. As the appellant in Criminal Appeal No.359 of 2010/accused No.1 is on bail, his bail bonds shall stand cancelled and he is directed to surrender before the Superintendent of Jails, Central Prison, YSR Kadapa District for serving the remaining sentence, if any, forthwith.
Consequently, miscellaneous applications pending if any, shall also stand closed.
________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY 25.07.2019 Ksp