Document Fragment View

Matching Fragments

3. The prosecution story can be briefed as follows:

That on 19-2-1998 at about 10.00 a.m. at Thelaprolu centre on national High Way No.5, in front of Alankar hotel all the 14 accused formed themselves into an unlawful assembly and caused the death of one Vintha Sivarantakrishna Reddy by attacking him with axes, spears and sticks.

4. It is further the case of the prosecution that accused No.1 and his followers belonged to the Communist Party whereas the deceased who was earlier in the Communist Party joined Congress Party two years prior to the incident and on account of that the accused bore grudge against him and there was also enemity between the family of A3 and the deceased on account of some civil disputes between them. In 1988 the younger brother of the deceased by name Prasad Reddy was beaten by some of the accused. It is further the case of the prosecution that PW1 is the brother by courtesy and PW5 is the real brother of the deceased and they are the residents of Thelaprolu village. The accused are also the residents of the same village. On 19-2-1989, at about 10.00 a.m. the deceased is alleged to have went to Thelaprolu and informed PW1 that he secured a job in RTC at Vijayawada and requested him to accompany with him to Vijayawada to meet PW6, PW1 agreed to accompany him, thereafter both started on a scooter. They went to Vijayawada and met PW6. They left the house of PW6 at about 9 p.m. and reached Thelaprolu by about 11.30 p.m. They stopped the scooter at Alankar Coffee centre and got down from the scooter. PW2 who happened to be the proprietor of the hotel called them and informed them that their father asked them not to enter into the village since all the accused were waiting for an opportunity to attack them and asked PW1 and the deceased to go to Eluru. It is further the case of the prosecution that in the meanwhile all the accused came there armed with knives, spears and axes and surrounded the deceased. Due to fear PW1 went to a distance of about 5 or 6 yards. A1 alleged to have hacked the deceased on his right hand and left leg. A2 alleged to have hacked the deceased with an axe on the left hand and right elbow. A3 alleged to have stabbed the deceased on the abdomen with a sphere. A4 alleged to have hacked the deceased with an axe on hand. When the deceased fell down A4 alleged to have pulled a sphere from some of the accused and stabbed the deceased with a sphere. A5 alleged to have hacked the deceased on his leg. A10 alleged to have stabbed the deceased on side ribs. A7 alleged to have beat the deceased on his head with a sphere stick. A8 alleged to have beat the deceased with a sphere stick on the left shoulder. The other accused alleged to have beat the deceased indiscriminately. A3 alleged to have threatened with dire consequences if anyone gives water to the injured. Thereafter all the accused left the place. Then PW1 went to the village and informed the father and brothers of the deceased. PW1, PW5 and some others took the injured in a Car to the Government hospital at Gannavaram, in the hospital the Doctor was not available and the Nurse gave first aid and from there he was taken to Vijayawada hospital and on the way the deceased is alleged to have informed to his brother PW1 that A3, A4 and A5 and some others attacked him with sticks, knifes and sphears.

14. With this observation of the learned Judge on record, learned Counsel Mr. Padmanabha Reddy appearing on behalf of the accused appellants submitted at the bar that infact the observation of the learned Judge appears to be correct. Though PW1 accompanied the deceased to Vijayawada and returned along with him, when he noticed the deceased being attacked by the accused he ran away from the scene of offence as he apprehend threat to his life. Thus PW1 is not an eye-witness to the incident and therefore the overtacts attributed by him to the accused cannot be relied upon. According to evidence of PW1 A1 alleged to have attacked the deceased on his right hand and left leg, A2 hacked with an axe on left hand A3 stabbed in the abdomen with a spear, A4 hacked with an axe on his hands, A5 hacked on the legs, A7 beat the deceased on his head with a spear stick and A10 stabbed the deceased on his side ribs. PW1 further stated that he accompanied the deceased to the hospital at Vijayawada in a car. Further according to the evidence of PW1 while going to hospital in that Car, the deceased is alleged to have made an oral dying declaration to his father disclosing the names of the persons who caused injuries to him. It is alleged that the deceased mentioned the names of A4, 3, 10 and 6 and some others as assailants. PW1 further stated that he supplied the names of the deceased of the remaining accused persons.

17. This is what all the evidence led by the prosecution, in addition to the dying declarations alleged to have been made by the deceased.

18. PW16 the Head Constable recorded the statement of the deceased under Section 161 Cr.PC. But after the death of deceased the statement recorded under Section 161 Cr.PC assumes importance and is admissible under Section 32(1) of the Evidence Act. According to the evidence of PW16 on receipt of the information he went to the hospital and recorded the statement of the injured (deceased) and the deceased alleged to have told him that he was attacked by A1, A2, A3, A4, A5 and A6 and while involving them in the commission of the offence the deceased alleged to have told PW16 that A1 beat with an axe on his right hand, A2 hacked with an axe on his left hand, A3 speared on his stomach, A4 hacked him with an axe on his left leg, A5 hacked on his left leg wifh an axe and A6 beat on his head with a spear stick. He also spoke to the presence of A7 and A8 at the scene of offence but he did not attributes any overtacts to them. This is one set of dying declaration recorded by PW16 Head Constable. The other set of dying declaration was recorded by the learned Magistrate PW15. The said dying declaration is at Ex.P18. PW15 in her evidence stated that on receiving the requisition from the Police for recording the dying declaration, she visited the hospital and recorded the dying declaration of the deceased. The deceased alleged to have told her that Al, A2 and A6 and seven others stopped him near Alankar hotel. According to the evidence of PW15 the deceased alleged to have told that A1hacked him with an axe on his left leg and left hand, A2 beat on his right hand, A4 beat him on his back with a spear stick and A6 beat PW1 on his back with a stick. This appears to be totally a new version. PW1 has not stated in his evidence that he was hit by any one of the accused. This appears to be an improvement by the injured person while giving the dying declaration.

19. With this two dying declarations on record, learned Counsel submitted that there is discrepancy regarding the overtacts attributed by the deceased and there is also discrepancy regarding the weapon used by the accused in hacking the deceased and the part on which each of the accused hacked him is also not consistent. Therefore, it was submitted at the Bar that the deceased was made to involve as many accused as possible in the case, and therefore conviction cannot be based upon the dying declarations which are inconsistent with each other. In support of his contention he relied ruling of the Supreme Court in the case of Khushal Rao v. State of Bombay, their Lordships held as under: