SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
AND HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO CRIMINAL APPEAL No.654 of 2014 JUDGMENT : (Per G.Anupama Chakravarthy, J) This appeal is arising out of the judgment dated 06.06.2014 in S.C.No.309 of 2012 on the file of the VIII Additional District and Sessions Judge, Medak. Initially, a crime was registered against accused Nos.1 to 6 in Crime No.74 of 2011 on the file of Kowdipally Police Station, which was committed to the Sessions Court by the Judicial Magistrate of First Class, Narsapur, vide PRC.No.7 of 2012, for the offences punishable under Sections 147, 148, 302, 323 r/w.149 of IPC. The Sessions Court, on conclusion of trial, found accused No.1 alone guilty of the offence punishable under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-. Accused Nos.2 to 6 are acquitted of all the charges levelled against them.
2. The case of the prosecution is that accused No.2/Dontula Narsaiah and the deceased/Donthula Balaiah are relatives and they have agricultural lands in Sy.Nos.325 and 327 at their village. In 2 GAC, J & RRN, J Crl.A.No.654 of 2014 the year 2008, A-1 to A-3 sold away their land admeasuring Ac.0-12 guntas to the deceased under registered document and since then, the deceased was in possession of the said land. A-2 again sold his land admeasuring Ac.0-06½ guntas in the month of December, 2010 to one Kodigudla Narsimulu under a registered document and when he went to the said land, the deceased opposed and warned him not to interfere. Further, the said Kodigudla Narsimulu asked A-1 to A-3 either to deliver the land to his possession or for refund of the money. On that issue, A-2 and the deceased quarrelled. Later, the deceased filed O.S.No.8 of 2011 and Kodigudla Narsimulu also filed O.S.No.18 of 2011 on the file of Junior Civil Judge, Narsapur. On 12.08.2011, while the deceased and his son were cultivating the land, A-2 and A-3 threatened them to kill them if they enter into the field again. Later, A-2 and A-3 decided to kill the deceased, contacted their relatives A-4 and A-5 on phone and on 13.08.2011, A-4 to A-6 went to Venkatraopet village on Bajaj Chetak Scooter of A-6, hatched a plan and waited for arrival of deceased/Balaiah, who would pass from infront of the house of the accused. At about 3 GAC, J & RRN, J Crl.A.No.654 of 2014 12 Noon, when the deceased was passing on the road, A-3 sprinkled chilly powder into the eyes of the deceased and A-1 attacked the deceased with an axe, while A-4 to A-6 attacked him with sticks and beat indiscriminately and caused severe injuries on the head, face and further, A-2 picked up a stone and dropped it on the face of the deceased. Further, A-1 also beat PW-2/the daughter in law of the deceased at the scene of offence, who in turn, rushed to the nearby hotel of Gandi Yada Goud and informed about the incident to others. By the time PW-2 and others reached the scene of offence, the accused persons escaped. Later, the deceased succumbed to injuries, while being shifted to Government hospital, Narsapur in 108 Ambulance.
3. Basing on the complaint of PW-1/the son of the deceased, a case was registered against A-1 to A-6 for the offences punishable under Sections 147, 148, 302 and 323 r/w. Section 149 of IPC. During the course of investigation, the investigating officer examined the witnesses, recorded their statements under Section 161 Cr.P.C., conducted inquest over the dead body of the deceased, forwarded the dead body for postmortem examination, observed 4 GAC, J & RRN, J Crl.A.No.654 of 2014 the scene of offence, prepared crime report, affected arrest of the accused, recorded their confession statements, seized the material objects and after receiving the medical and FSL reports, laid charge sheet against the accused for the above said offences.
4. During the course of trial, charges were framed against the accused for the above said offences and all the accused denied the charges levelled against them and claimed to be tried. On behalf of the prosecution, PWs.1 to 10 were examined and Exs.P-1 to P-10 and M.Os.1 to 12 were marked. The accused were examined under Section 313 Cr.P.C. and they all denied the incriminating evidence against them and reported no defence evidence.
5. The trial Court framed the following points for determination:
"1. Whether accused formed into an unlawful assembly and committed rioting with deadly weapons ?
2. Whether the deceased - Balaiah was killed by A-1, A-2, A-4 to A-6 intentionally ?
3. Whether A-3 caused hurt to the deceased and liable for the offence of murder being member of unlawful assembly ?"5
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6. As already stated supra, the trial Court has acquitted A-2 to A-6 of all the charges levelled against them and A-1 alone was convicted for the offence under Section 302 of IPC.
7. It is pertinent to mention the relationships between the accused. A-1 to A-3 are the members of the same family i.e. A-1 is the son of A-2 and A-3; A-4 is the brother of A-3; A-5 is the son-in-law of A-2 and A-3; A-6 is the resident of the same village as that of A-4 and A-5; A-2 is the relative of the deceased i.e. the 1st wife of A-2, namely, Narsamma is the cousin of the deceased.
8. For better appreciation of facts, it is also relevant to discuss the identity of the prosecution witnesses with that of the deceased. PW-1 is the elder son of the deceased, PW-2 is the wife of PW-1 and daughter-in-law of the deceased, PWs.3 to 6 are the residents of the village, PW-7 is the Doctor, who conducted autopsy over the dead body of the deceased, PW-8 is the VRO, who attested the confession panchanama of A-1 and pursuant to the confession panchanama, M.Os.9 to 12 were seized in his presence, PW-9 is the Head Constable who registered the case against A-1 to A-6 6 GAC, J & RRN, J Crl.A.No.654 of 2014 basing on the complaint given by PW-1 vide Crime No.74 of 2011 on the file of Kowdipally Police Station and issued FIR/Ex.P-8 and PW-10 is the Inspector of Police, who investigated the case and laid charge sheet before the Court.
9. Heard learned counsel for the appellant and the learned Public Prosecutor. Perused the record.
10. It is contended by the learned counsel for the appellant that the trial Court has acquitted the other accused in the case i.e. A-2 to A-6 of all the charges levelled against them, but on the same set of facts and evidence, the Court has erroneously convicted A-1/ appellant herein, which is not admissible in law. Therefore, the conviction is bad in the eye of law and accordingly prayed to set aside the judgment of the trial Court; as the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt.
11. On the other hand, the learned Public Prosecutor contended that the trial Court has convicted the appellant after considering the evidence available on record, and therefore, prayed to confirm the 7 GAC, J & RRN, J Crl.A.No.654 of 2014 judgment of the trial Court by dismissing the appeal, as there is no error or irregularity in the judgment of the Sessions Court.
12. The point for determination in this case is;
Whether the trial Court is proper in convicting the accused for the offence punishable under Section 302 of IPC, while acquitting the other accused on the same set of facts, and whether the prosecution is able to prove the guilt of the appellant beyond all reasonable doubt for the said offence ?
13. The case of the prosecution is that there were land disputes between A-2 and the deceased and the motive for the offences is the land disputes. A-1 to A-6 hatched a plan to do away with the life of the deceased and accordingly on 13.08.2011, while the deceased was passing from infront of the house of the accused, A-3 sprinkled chilly powder into the eyes of the deceased and A-1 hacked the deceased with an axe and later, the other accused beat the deceased with sticks, which was witnessed by PW-2, who is none other than the daughter-in-law of the deceased. The trial Court disbelieved the evidence of prosecution and discarded the theory placed by the prosecution and acquitted A-2 to A-6 of all 8 GAC, J & RRN, J Crl.A.No.654 of 2014 the offences for which they are charged and convicted A-1 alone for the offence under Section 302 of IPC on the same set of facts.
14. In this regard, the learned Legal Aid Counsel Smt. C.Vasundhara Reddy relied on the judgment of the Apex Court in Mahmood & others v. State of Bihar1, wherein, their Lordships, while relying on the judgment in Prem Singh v. State of Punjab2, set aside the conviction which was founded solely on the evidence of two witnesses whose testimony in regard to the other accused was held by the trial Court as well as the High Court to be unreliable and disbelieved in regard to the participation of the said four other accused in the incident.
15. The above judgment squarely applies to the facts and circumstances of the present case, as A-2 to A-6 are acquitted and on the same set of facts, A-1 alone is convicted.
16. The evidence of PW-2 disclose that A-3 sprinkled chilly powder into the eyes of the deceased, A-1 hacked the deceased with an axe and rest of the accused beat the deceased with sticks 1 2000 (1) ALD (Crl.) 706 (SC) 2 (1976) 1 SCC 805 9 GAC, J & RRN, J Crl.A.No.654 of 2014 and the accused also beat the witness, for which, a charge was framed by the trial Court for the offence under Section 323 of IPC and the trial Court has disbelieved the evidence and set A-2 to A-6 at liberty, but convicted A-1 alone for the offence under Section 302 of IPC. Therefore, applying the proposition laid by the Hon'ble Supreme Court in the aforesaid judgment, the appellant in this case is also entitled for benefit of doubt.
17. Further, PW-2 testified that A-2 to A-6 surrounded the deceased and A-2 dropped a stone on the face of the deceased and ran away. In the cross-examination, it is specifically deposed by PW-2 that she usually goes to fields by 8.00 or 9.00 a.m. and will return within two hours and again will go back to the fields in the evening, but on the particular day of incident, she went to the fields at 11.00 a.m. and the deceased went out of the house to the city at 11.00 a.m. There was no explanation as to why she went late to the fields. It is also specifically deposed by her that on the date of the incident, the work at field went upto 5.00 p.m. Therefore, the presence of PW-2 at the scene of offence is highly doubtful. 10
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18. On the other hand, the evidence of PW-1 is that he came to the village at about 11.30 a.m. or 12.00 Noon and was informed by the villagers that his father was beaten at their house and when he rushed to the house, he noticed his father in an unconscious state and also noticed one Bajaj Chetak scooter, an axe and some sticks at the scene of offence and shifted his father to the hospital in an ambulance but the Doctors declared his father as brought dead. Later, he was informed by PW-2 that all the six accused were responsible for the death of his father.
19. Admittedly, there is no evidence before the Court to prove that there are land disputes between A-2 and the deceased, though orally stated by the witnesses. The evidence of PW-3 discloses that he saw A-4 to A-6 going away from the scene of offence with sticks and A-1 to A-3 also going away from the scene of offence. PW-3 is not an eyewitness to the incident. His evidence merely discloses that PW-2 intimated them that their father-in-law was killed. On that, they went to the scene of offence and saw the accused moving away from the scene of offence. In the cross-examination also, PW-3 admitted that he was informed by 11 GAC, J & RRN, J Crl.A.No.654 of 2014 PW-2 that there were land disputes between the accused and the deceased. So, it can be construed that the evidence of PW-3 is a hearsay and he has not witnessed the incident and deposed before the Court basing on the information given to him by PW-2, who is an interested witness.
20. PW-4 is the father of PW-2 and father-in-law of PW-1. He was cited to speak about his witnessing the deceased's body lying in a pool of blood. The evidence of PW-4 also discloses that he was informed about the death of the deceased by PW-2. Admittedly, he is not the resident of Venkatraopet village and as to why he was present on that day in the said village at the time of offence, is not at all explained by the prosecution. Further, his evidence discloses that he was informed by PW-2 one day prior to the incident about the land disputes between A-2 and the deceased. It is important to note that the evidence of PW-1 disclose thathe shifted his father in an ambulance to the hospital, when the deceased was in unconscious state and doctors declared the deceased as brought dead, but contrary to it, the evidence of PW-4 disclose that he saw the deceased lying in a pool of blood. 12
GAC, J & RRN, J Crl.A.No.654 of 2014 Therefore, the presence of PW-4 at the scene of offence is also doubtful.
21. The evidence of PWs.5 and 6 disclose their presence at the scene of offence when the Police prepared the scene observation report and conducted inquest, which are Exs.P-2 and P-3 respectively. Their evidence is in no way helpful to connect the appellant with that of the crime.
22. The evidence of PW-7 clearly discloses that the death of the deceased is a homicide. He found the following ten external injuries on the dead body of the deceased:
"1. Laceration measuring approximate 7 x 1 x 1.5 cm on the right side of the chin.
2. Laceration measuring approximate 1 x 0.25 cm below the lower lip of the right side.
3. Laceration measuring approximate 1 x 0.50 x 0.50 cm on the cheek on the right side extending from the angle of mouth.
4. Laceration of 2 x 0.50 x 0.25 cm is present on the calomel and right lateral wall of the nose.
5. Avulsion of both side and left upper 1st incisor tooth.
6. Avulsion of skin approximately of 2 x 0.75 cm over the forehead on the right side.
7. Laceration of 4 x 2 x 1.5 cm is present on the left temporal region of the scalp.13
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8. Laceration of approximate 8 x 1 x 1 cm over the left paritotemporal region of the scalp.
9. Laceration of approximate 8 x 1.5 cm over the left occipital temporal region of the scalp.
10. Fracture left temporal bone.
PW-7 opined that the cause of death of the deceased was due to head injury and only one injury was irregular. As stated supra, it is for the prosecution to connect the accused with the crime. Though it is a homicide, the prosecution has miserably failed to prove the same. Furthermore, Ex.P-9/RFSL report is in no way helpful for the prosecution to prove that Item No.7/Axe contains the blood-stains of the deceased and the fingerprints of the appellant.
23. The evidence of PW-8 clearly discloses that Police have recorded the confession panchanama of A-1 in the Police Station and pursuant to it, they seized M.Os.9 to 12 i.e. the knife and three sticks under the cover of panchanama/Ex.P-6 and the signature of PW-8 on the confession panchanama is Ex.P-5.
24. Admittedly, the confession given to a Police officer by the accused is hit by Section 25 of the Indian Evidence Act and any recovery made basing on the confession made by the accused is 14 GAC, J & RRN, J Crl.A.No.654 of 2014 only relevant under Section 27 of the Indian Evidence Act, but it is always open for the prosecution to connect that recovery with that of crime. The other evidence in this case is that of PWs.9 and 10, who are Police officers who registered the case, investigated it and laid charge sheet.
25. On perusal of the judgment of the trial Court, it is evident that the trial Court has disbelieved the evidence of the prosecution witnesses as far as A-2 to A-6 are concerned and came to the conclusion that A-1 alone took the extreme step of causing injuries to the deceased with an axe and A-2 to A-6 are not having the object to eliminate the deceased and concluded that the prosecution has failed to establish that A-1 to A-6 have formed into an unlawful assembly and committed rioting with deadly weapons and only basing on the confession and recovery made by PW-10/the investigating officer and the panchwitness/PW-8, came to the conclusion that A-1 used M.O.9/axe and intentionally caused the death of the deceased. As already stated supra, for the same set of facts, the trial Court convicted A-1 and acquitted A-2 to A-6. There is no evidence before the Court, as to why M.O.1/Bajaj 15 GAC, J & RRN, J Crl.A.No.654 of 2014 Chetak Scooter is seized as prosecution failed to establish the material objects to connect with that of the crime.
26. The learned Legal Aid Counsel appearing for the appellant has relied on the judgment of Hon'ble Supreme Court in Mahendra Singh & others v. State of Madhya Pradesh3, wherein, their Lordships have held at para 12 as under:
"12. It will be apposite to refer to the following observations of this court in its celebrated judgment in Vadivelu Thevar v. State of Madras4:
"11.......Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly
unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single 3 (2022) 7 SCC 157 4 AIR 1957 SC 614 16 GAC, J & RRN, J Crl.A.No.654 of 2014 witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.""
In the case on hand, PW-2 is neither wholly reliable nor wholly unreliable, which comes under the third category referred above and the appellant is entitled for benefit of doubt, as the prosecution has miserably failed to establish the guilt of the appellant.
27. In the result, the Criminal Appeal is allowed. The appellant/A-1 is found not guilty of the offence punishable under Section 302 of IPC, and accordingly, the conviction and sentence imposed on the appellant vide Judgment dated 06.06.2014 in S.C.No.309 of 2012 on the file of VIII Additional District and Sessions Judge, Medak, is hereby set aside and the appellant is acquitted of the charged offence. The appellant shall be released forthwith, if not required in any other case. The fine amount paid by the appellant, if any, shall be refunded. M.O.1/Chetak Scooter 17 GAC, J & RRN, J Crl.A.No.654 of 2014 shall be returned to its owner and M.Os.2 to 12 shall be destroyed after appeal time is over.
Pending miscellaneous applications, if any, shall stand closed.
_________________________________ G.ANUPAMA CHAKRAVARTHY, J _________________________________ NAMAVARAPU RAJESHWAR RAO, J Date: 19.11.2022 N.B:
(1) Judgment be forthwith communicated to the jail authorities concerned.
(2) L.R. copy be marked.
(b/o)
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