State Of A.P.,Rep.By Pp., vs Thammisetty Narayna Pedda ...
2022 Latest Caselaw 9214 AP

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     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

             CRIMINAL APPEAL NO.426 OF 2007
                          AND
             CRIMINAL APPEAL NO.1001 OF 2008

COMMON JUDGMENT:-

      Both    these     Criminal   Appeals   arose   as   against   the

judgment in Sessions Case No.10 of 2002, on the file of the

Assistant    Sessions     Judge,    Markapur,   dated     13.10.2004,

whereunder the learned Assistant Sessions Judge, Markapur,

found the respondents in Criminal Appeal No.1001 of 2008 not

guilty of the charges framed against them and acquitted them

under Section 235 (1) of Criminal Procedure Code ("Cr.P.C." for

short) and found the respondents in Criminal Appeal No.426 of

2007 guilty of certain charges and sentenced them accordingly.

So, the Criminal Appeal No.426 of 2007 is filed questioning the

quantum of sentence i.e., inadequacy of sentence and that is

filed by the State. Similarly, the Criminal Appeal No.1001 of

2008 is filed as against the acquittal of the respondents therein.

2) The Sessions Case No.10 of 2002 arose out of

committal order passed by the Judicial First Class Magistrate,

Markapu in P.R.C.No.34 of 2001.

3) The case of the prosecution, in brief, is that the

State, represented by the Station House Officer, Pedda

Araveedu Police Station, filed charge sheet in Crime No.23 of

2001 of Pedda Araveedu Police Station, under Sections 147,

148, 324 and 307 of Indian Penal Code ("I.P.C." for short) r/w

149 of I.P.C., alleging that A.1 to A.13 and L.Ws.1 to 15 are

residents of Ramayapalem Village of Pedda Araveedu Mandal.

A.1 to A.13 belonged to Vaddera caste. The above prosecution

witnesses except L.Ws.7 and 12 belonged to Reddy caste.

L.Ws.7 and 12 belonged to Rajaka caste.

4) There are two rival groups in the village at

Ramayapalem. L.Ws.1 to 15 and some others belonged to other

group. There was a political rift in the village. Both the groups

belonged to two political parties i.e., Telugudesam Party and

Congress Party. There are strained feelings among the two

groups since 1995 due to Panchayat elections. Apart from this,

during September, 1995, the rival group belonging to accused

brutally killed the father of L.W.1. So, there are strained

feelings among the groups which reached climax. Both the

accused party and the defacto-complainant (L.W.1) party laid

their claim over Government banjar land in an extent of Ac.3-70

cents in Survey No.670, for which both the parties were not

granted with any pattas. Accused group are waiting an

opportunity to take revenge against the defacto-complainant.

They hatched a plan to do away L.W.1, if he raise any objection

over the occupation of the said land. Accused party collected

material with stones and constructed parapet wall with stones

encroaching the bore pump and public road and caused

obstruction to the public. L.W.1 on hearing the same, raised

objection.

5) While so, on 04.04.2001 at 5-00 P.M. L.Ws.2 to 5

went to bore to bring water and they found the encroachments.

Then, A.1 to A.13 formed themselves into unlawful assembly

armed with spears, sticks and stones and attacked them. A.1

pierced L.W.2 with a spear on his head and caused bleeding

injury. A.7 beat L.W.2 with stick on his left waist and caused

bleeding injury. A.1 beat L.W.4 with a stone below right eye

and caused bleeding injury. A.8 beat L.W.5 with a stone on the

back side of her head and caused bleeding injury. A.2 pierced

L.W.3 with a spear on his umbilical card and caused bleeding

injury. They also beat L.Ws.2 to 5 with legs and hands.

L.Ws.14 to 16 intervened and admonished accused. Then the

accused found that L.W.1-Botchu Veera Reddy was not among

L.Ws.2 to 5 and they learnt that he is proceeding to his land.

Then the accused left hurriedly to kill him. Then L.Ws.8 to 10,

who noticed the accused coming to kill L.W.1, gave signal to

L.W.1 intimating that accused are coming to murder him. L.W.1

escaped and ran away. But, all the accused attacked L.W.1

armed with spears, sticks and surrounded him to kill him. Out

of them, A.1 pierced L.W.1 with a spear on his left side stomach.

A.2 beat L.W.1 with stick on his face and chin indiscriminately.

A.13 pierced L.W.1 with spear on his right hand wrist. A.12

pierced L.W.1 with a spear on his chest. A.10 beat L.W.1 with a

stick on his back. The rest of the accused beat L.W.1 with sticks

indiscriminately. Accused left the place presuming that L.W.1

was died. L.W.2 and some others took the L.W.1 on a cart to his

house. Later, he was taken to Government hospital. L.W.1

came to know that L.Ws.2 to 5 were also beaten by the accused.

In the meantime, L.Ws.2 to 5 also came to Dornal to see L.W.1.

On intimation from L.W.22, L.W.23 recorded the statement of

L.W.1 and sent to the Station House Officer, Pedda Araveedu

Police Station on point of jurisdiction, which came to be

registered as a case in Crime No.23 of 2001. L.W.1 was

referred to Government General Hospital, Kurnool, for expert

treatment. L.Ws.2 to 5 also came to Government Hospital,

Markapur and took treatment. L.W.24 conducted investigation,

recorded the statements of witnesses, examined the scene of

offence and prepared observation report. L.W.17 took the

photos of the scene of offence.

6) On 16.04.2001 at 8-00 A.M. L.W.24 arrested A.1 to

A.13 and they confessed about the spears and sticks used in the

commission of offence concealed amidst Japan babul trees,

which were recovered under the cover of mahazarnama in the

presence of the mahazar witnesses and the accused were sent

to judicial custody. L.W.21 treated L.ws.2 to 5 and issued

wound certificates. L.W.22 treated L.W.1 and issued wound

certificate. L.W.25 further investigated into the case and after

completion of investigation, laid the charge sheet.

7) The learned Judicial Magistrate of First Class, Markapur,

after taking cognizance of the case and after complying

formalities under Section 207 of Cr.P.C., committed the case to

the Court of Sessions and thereafter, it was made over to

Assistant Sessions Judge, Markapur.

8) Before the learned Assistant Sessions Judge, Markapur,

after appearance of the accused and after following the

procedure, charges under Section 148 of I.P.C. against A.1 to

A.13, Section 324 of I.P.C. against A.1, A.2, A.7 and A.8,

Section 324 of I.P.C. r/w 149 of I.P.C. against A.3 to A.6 and

A.9 to A.13 and Section 323 of I.P.C. against A.1 to A.13 and

Section 307 of I.P.C. against A.1 to A.13, were framed and

explained to them in Telugu, for which they pleaded not guilty

and claimed to be tried.

9) Before the learned Assistant Sessions Judge, Markapur,

during the course of trial, on behalf of the prosecution, P.Ws.1

to 21 were examined and Exs.P.1 to P.32 were marked and

M.Os.1 to 6 were marked and Ex.D.1 was marked on behalf of

the accused. After the closure of the evidence of prosecution,

accused were examined under Section 313 Cr.P.C. and they

denied the incriminating circumstances.

10) The learned Assistant Sessions Judge, Markapur, on

hearing both sides and on considering the evidence on record,

found A.2 to A.5, A.9 to A.11 not guilty of the offence under

Section 148 of I.P.C., found A.2 not guilty of the offence under

Section 323 of I.P.C. and further found A.3, A.6, A.9 to A.13 not

guilty of the offence under Section 324 r/w 149 of I.P.C. and

further found A.1, A.5, A.9 and A.11 not guilty for the offence

under Section 307 of I.P.C. and acquitted them under Section

235 (1) of Cr.P.C.

11) The learned Assistant Sessions Judge, Markapur,

found A.1, A.6 to A.8, A.10, A.12 and A.13 guilty for the offence

under Section 148 of I.P.C. and further found A.1, A.7 and A.8

guilty of the offence under Section 324 of I.P.C. and further

found A.6 to A.8, A.10, A.12 and A.13 guilty of the offence

under Section 324 of I.P.C. and convicted them under Section

235(2) of Cr.P.C. After hearing them about the quantum of

sentence, the learned Assistant Sessions Judge, Markapur,

sentenced A.1, A.6 to A.8, A.10, A.12 and A.13 to pay fine of

Rs.500/- each for the offence under Section 148 of I.P.C. and

further sentenced A.1, A.7 and A.8 to undergo rigorous

imprisonment for six months each and to pay fine of Rs.200/-

each, in default to suffer simple imprisonment for one month

each for causing injuries to P.Ws.2 to 5 and further sentenced

A.6 to A.8, A.10, A.12 and A.13 to undergo rigorous

imprisonment for six months each and to pay fine of Rs.200/-

each, in default to suffer simple imprisonment for one month

each for causing injuries to P.W.1 and that the sentences of

imprisonment imposed against A.7 and A.8 under two counts

shall run concurrently. It is altogether a different aspect that

the convicts filed Criminal Appeal before the appellate Court

which was dismissed with certain modifications against which

Criminal Revision Case No.260 of 2006 is filed before this Court

which is being adjudicated today.

12) Now, in deciding these appeals i.e., Criminal Appeal

No.426 of 2007 and Criminal Appeal No.1001 of 2008, the

points that arise for consideration are as follows:

(i) Whether the judgment, dated 13.10.2004 in S.C.No.10 of 2002, on the file of the Assistant Sessions Judge, Markapur, as regards the acquittal of the respondents in Criminal Appeal No.1001 of 2008 is concerned, it is liable to be interfered with?

(ii) Whether the sentence imposed by the learned Assistant Sessions Judge, Markapur as against the respondents in Criminal Appeal No.426 of 2007 is sufficient or not and whether it is liable to enhanced as contended by the appellant in Criminal Appeal No.426 of 2007?

Point Nos.1 and 2:-

13) Insofar as the Criminal Appeal No.426 of 2007 is

concerned, Sri Y. Jagadeeswara Rao, learned counsel,

representing the learned Public Prosecutor, would contend that

the sentence imposed against the respondents in Criminal

Appeal No.426 of 2007 is very less and it is not in proportionate

to the allegations, as such, it is liable to be enhanced. He would

further contend in respect of the Criminal Appeal No.1001 of

2008 that the reasons recorded by the learned Assistant

Sessions Judge, Markapur, in extending order of acquittal is not

proper and there was cogent evidence adduced by the

prosecution. The learned Assistant Sessions Judge, failed to

look into the same and did not consider the evidence of P.W.9

and erroneously acquitted A.2 to A.5, A.9 and A.11, as such,

Criminal Appeal No.1001 of 2008 is liable to be allowed.

14) Sri A. Syam Sunder Reddy, learned counsel,

representing Sri G. Rama Chandra Reddy, learned counsel for

the respondents in Criminal Appeal No.1001 of 2008, would

submit that though there was an allegation that all the accused

were armed with deadly weapons, but no specific overt acts are

attributed against the respondents in Criminal Appeal No.1001

of 2008 and the village was a faction ridden village where there

was a possibility to rope as many as persons for false implication

and the learned Assistant Sessions Judge, Markapur, rightly

appreciated the evidence on record and rightly acquitted the

accused. The learned Assistant Sessions Judge, Markapur

elaborately discussed as to how he extended benefit of doubt to

the accused, as such, Criminal Appeal No.1001 of 2008 must

fail. Insofar as Criminal Appeal No.426 of 2007 is concerned, he

would contend that it is not a case where the learned Assistant

Sessions Judge, Markapur, let off the respondents with fine. On

the other hand, he imposed imprisonment for six months

against them and it is in proportion, as such, there is no

necessity to enhance the sentence of imprisonment. He would

further contend that challenging the conviction, the respondents

in Criminal Appeal No.426 of 2007 filed Criminal Appeal No.153

of 2004 before the II Additional District and Sessions Judge

(FTC), Ongole at Prakasam Division, which came to be

dismissed, as such, they filed Criminal Revision Case No.260 of

2006 before this Court. So, he would contend that this Criminal

Appeal No.426 of 2007 must also fail.

15) The parties to these appeals will hereinafter be

referred as described before the learned Assistant Sessions

Judge, Markapur, for the sake of convenience.

16) There is no dispute that both the accused party and

the defacto-complainant party were trying to dominant with

each other on account of the political rift in the village especially

since the date of Panchayat elections. Both the groups were

supported by two political parties according to the allegations,

as such, there were strained feelings among the rival groups.

There was also no dispute that there was a criminal case against

the accused party alleging that they killed the father of defacto-

complainant. So, in the Ramayapalem Village, Pedda Araveedu

Mandal, according to the allegations of the prosecution, there

was two faction ridden groups.

17) Coming to the incident in question, admittedly, the

incident was said to be happened on 04.04.2001. There were

two places of incidents. One was at the so-called Government

banjar land. That incident is relating to causing injuries to

P.Ws.2 to 5. Another incident was said to be happened in the

fields of P.W.1, where the accused made an attempt to kill the

P.W.1. Needless to point out here that though the learned

Assistant Sessions Judge, Markapur, acquitted the accused

under Section 307 of I.P.C. and extended the punishment under

only certain provisions, there is no appeal by the prosecution.

As evident from Criminal Appeal No.1001 of 2008, the

prosecution filed the said appeal only against the order of

acquittal exonerating the respondents therein. It is not a case

where the prosecution challenged the order of acquittal under

Section 307 of I.P.C. specifically. If the intention of the

prosecution is such, that it challenged the order of acquittal

under Section 307 of I.P.C, the respondents in Criminal Appeal

No.426 of 2007 would have been also figured as respondents in

Criminal Appeal No.1001 of 2008. So, the scope of appeal in

Criminal Appeal No.1001 of 2008 is very limited as to whether

the acquittal order recorded against the respondents therein is

liable to be interfered with?

18) Now, it is pertinent to refer herein the relevant

evidence adduced by the prosecution.

19) P.W.1 is no other than the defacto-complainant. In

his evidence, he spoken about the time of offence and date of

offence. According to him at 6-15 P.M., he was proceeding to

the fields to fix penal board. He came to know that there was a

galata held in the village and accused are coming to kill him.

Then, he started running. All the accused armed with spears

and sticks surrounded him. Thammisetty Chinna Narayana

(A.8) stabbed him with spear on the left side of the abdomen.

Thammisetty Thimmaraju (A.7) beat him with stick on his face.

Thammisetty Kistaiah (A.13) stabbed him with spear on right

wrist. Thammisetty Venaktaswamy (A.6) stabbed him with

spear on his left hand above the wrist. Thammisetty

Tirupathaiah (A.12) stabbed him with a spear on his chest.

Thammisetty Lakshminarayana (A.10) beat him with stick on his

back. Remaining accused beat him with sticks on the body.

20) It is the evidence of P.W.2, who is also injured

witness, that accused constructed Thette wall around the bore

well. He questioned the accused about it. By then, all the

accused were there. Then, Thammisetty Chinna Narayana (A.8)

beat him with a spear. Thammisetty Thimmaraju (A.7) beat him

with stick on his wrist left side. Accused also beat Santhamma,

Malleswari and Veerareddy. Madugula Veerareddy and Gali

Veerareddy saw the said incident.

21) It is the evidence of P.W.3 that she, Malleswari,

Santhamma and Palanki Reddy went to bore to fetch drinking

water. Palanki Reddy stated why Thette wall is installed around

the bore well. On that the accused beat P.W.2. Then she

intervened. Thammiraju (A.7) stabbed him with spear on his

abdomen. Accused beat Santhamma and Malleswari. Madugula

Veera Reddy was also present.

22) It is the evidence of P.W.4 that she, Palanki Reddy,

Gali Veerareddy, Botchu Santhamma and Malleswari, went to

the bore well. Accused installed Thette wall around the bore

well. P.W.2 questioned the act of the accused. Thammisetty

Chinna Narayana (A.8) beat Palanki Reddy. A.1 beat her with

stone. Malleswari also sustained injuries.

23) It is the evidence of P.W.5 that she along with

P.Ws.1, 2 and 4 went to the well. P.W.2 questioned

Thammisetty Narayana about Thette well. Then A.8 beat P.W.2.

Then she intervened. Thammisetty Chinna Narayana beat her

with stone. P.Ws.2 to 4 received injuries.

24) P.Ws.6 to 8 and 11 did not support the case of the

prosecution.

25) The evidence of P.W.9 is that the offence took place

about three years back at 6-15 P.M. They were coming from

fields. They saw all the accused armed with spears and sticks at

the fields of Tirumalasetty Venkateswara Reddy. He saw the

accused and raised cries towards P.W.1 stating that they are

coming to kill P.W.1. All the accused surrounded P.W.1. Then

he (P.W.9) ran away.

26) The evidence of P.W.10 is that he came to know

about the incident only. P.W.12 is a witness for observation of

the scene of offence. P.W.13 is also a witness with regard to

the arrest of the accused under the cover of mahazarnama.

27) P.Ws.14 and 15 are medical officers, who treated

the injured and issued would certificates. P.W.14 spoken to the

fact that he examined P.Ws.2 to 5 and issued wound certificates.

P.W.15 spoken to the fact that he examined P.W.1 and issued

wound certificate.

28) P.W.15 is the Assistant Sub-Inspector of Police, who

recorded the statement of P.W.1 and forwarded to Pedda

Araveedu Police on point of jurisdiction. P.W.17 is the

Photographer, who took the photographs of the scene of

offence. P.W.18 verified the investigation of Head Constable.

P.W.19 is the Assistant Sub-Inspector of Police, who registered

the F.I.R. and taken part of certain investigation. P.W.20 is the

person, who took X-rays of P.W.1 and found no bone injury.

P.W.21 claimed to have done certain surgery on P.W.1.

29) Regarding the order of acquittal extended against

the respondents in Criminal Appeal No.1001 of 2008 is

concerned, the order relates to Section 148 of I.P.C., Section

324 r/w 149 of I.P.C., Section 323 of I.P.C. and further Section

307 of I.P.C. As seen from the evidence of P.W.1, the incident

in question was in the fields at 6-15 P.M. when he was

proceeding to the fields. His evidence is that all the accused

armed with spears and sticks surrounded him. He could speak

the overt acts only against A.8, A.7, A.13, A.6, A.12 and A.10

and rest of the accused beat him with sticks on the body. As

against the overt acts attributed as above, there were four

injuries found on the person of P.W.1 according to evidence of

P.W.15, the medical officer coupled with wound certificate under

Ex.P.16. So, the allegation that the remaining accused beat

with sticks on his body cannot stands to any reason.

30) Apart from this, when he spoken about the names of

the accused and ascribed overt acts in the evidence, his

evidence that all the accused armed with spears and sticks and

surrounded him is totally vague. Who is other accused apart

from A.7, A.13, A.6, A.12 and A.10 and who armed with which

weapon is not spoken to by P.W.1. Apart from this, if really the

rest of the accused were armed with so-called spears and sticks,

etc., definitely, they would have taken part in causing injuries to

P.W.1. So, the evidence of P.W.1 as relates to A.2, A.3, A.4,

A.5, A.9 and A.11 is totally vague.

31) As pointed out, there is no dispute that the defacto-

complainant party and the accused party were grinding their

axes against each other to show the supremacy against each

other and there was a political rift in the village and the relations

were also strained. Under such circumstances, the Court has to

scrutinize the evidence with care and caution. Apart from this,

leave part the evidence of P.W.1 as against the attack against

him, which is vague, insofar as the respondents in Criminal

Appeal No.1001 of 2008 is concerned, even other injured

witnesses i.e., P.Ws.2 to 5 did not speak to the fact that all the

accused were armed with deadly weapons like spears and sticks

at the time of attack on them. P.W.2 deposed that accused

constructed wall and he questioned and all accused were

present. He did not reveal that whether other accused were

armed with any weapons. He did not attribute any overt acts

against the said accused. So, his evidence is also vague with

regard to the presence of all accused so as to commit the

offence on prosecution witnesses.

32) Apart from this, even the evidence of P.W.3 did not

specify the presence of all the accused. His evidence is that

accused also beat Santhamma and Malleswari. He could speak

overt acts against some of the accused only. Even it is not his

case the other accused were armed with deadly weapons and

that they attacked him. Even it is not the evidence of P.W.4

that all the accused attacked him. His evidence is that all the

accused installed Thette. His evidence does not reveal that apart

from the accused against whom she attributed overt acts, other

accused were also participants in the attack. Even P.W.5 did not

testify the presence of all the accused armed with any deadly

weapons. Under the circumstances, absolutely there was no

evidence before the trial Court as to the participation of A.2,

A.3, A.4, A.5, A.9 and A.11 in the attack on P.Ws.1 to 5. As

pointed out the evidence of P.W.1 regarding them is also not

convincing.

33) Apart from this, prosecution cited P.Ws.6 to 8, who

were said to be the direct witnesses and who did not support the

case of the prosecution. Coming to the evidence of P.W.9, he

deposed that he saw all the accused armed with spears and

sticks at the fled of Tirumalareddy Venkateswarlu and saw them

surrounding P.W.1. A man like P.W.9 when he claimed to have

witnessed the accused armed with deadly weapons surrounding

P.W.1, he would have questioned as to why they are

surrounding P.W.1. As the evidence of P.W.9 in this regard is

not convincing, in my considered view, no reliance can be placed

on the evidence of P.W.9. If really all the accused surrounded

P.W.1, certainly other accused other than the accused against

whom P.W.9 attributed overt acts, would have participated in

the offence actually attacking P.W.1. The evidence of P.W.10 is

hearsay in nature.

34) So, a perusal of the judgment of the trial Court goes

to show that the learned Assistant Sessions Judge, Markapur,

took pains in appreciating the evidence on record. He

appreciated the evidence with care and caution having looked

into the background of the case. It is well settled that against a

judgment recorded by the trial Court acquitting the accused with

proper reasons, the Court of appeal shall be slow in reversing

the order of acquittal unless the judgment of the trial Court is

perversed and it is rendered without looking into the evidence

on record, the Court of appeal shall be slow in reversing the

order of the acquittal. As this Court already pointed out both

the groups were trying dominant with each other on account of

the political rift in the village and even there were criminal cases

relating to the previous incidents. If the case of the prosecution

has to be accepted that all the accused armed with spears and

sticks, first the prosecution should have explained which

accused armed with which weapon.

35) Apart from this, if the manner of attack was there,

as projected by the prosecution, definitely, the respondents in

Criminal Appeal No.1001 of 2008 would have attacked P.W.1 or

P.Ws.2 to 5 by using the deadly weapons. In my considered

view, the learned Assistant Sessions Judge, Markapur,

appreciated the evidence with care and caution and extended

benefit of doubt to the respondents in Criminal Appeal No.1001

of 2008, as such, it cannot be held by any stretch of imagination

that the offences alleged against them were proved by the

prosecution before the Court below beyond reasonable doubt.

Hence, I am of the considered view that the Criminal Appeal

No.1001 of 2008 must fail.

36) Coming to the Criminal Appeal No.426 of 2007 filed

by the State questioning the so-called inadequacy of the

sentence, this Court would like to make it clear that when the

respondents filed Criminal Appeal No.153 of 2004 before the

learned II Additional District and Sessions Judge (FTC), Ongole

at Prakasam Division, the said learned Sessions Judge allowed

the appeal exonerating them under Section 148 of I.P.C. and

confirmed the conviction under other provisions.

37) Now, coming to the quantum of sentence i.e.,

imposed against the respondents in Criminal Appeal No.426 of

2007 for the offence under Section 148 of I.P.C., fine was

imposed and it is altogether a different aspect that appellate

Court found the respondents in this appeal not guilty of the

offence under Section 148 of I.P.C. As regards the offence

under Section 324 of I.P.C., the trial Court awarded rigorous

imprisonment for six months each and to pay fine of Rs.200/-

each, in default simple imprisonment for one month each. The

offence under Section 324 of I.P.C. is punishable with

imprisonment for three years. The learned Assistant Sessions

Judge, Markapur, imposed imprisonment of six months that too

rigorous imprisonment. The said sentence imposed against the

respondents herein cannot be taken as a lesser one. The

learned Assistant Sessions Judge, Markapur, in my considered

view, imposed rigorous imprisonment for six months having

looked into the facts and circumstances, which cannot be taken

as a lesser punishment. Hence, this Court is of the considered

view that the sentence imposed is also adequate.

38) The point is answered accordingly.

39) In the result, the Criminal Appeal No.426 of 2007

and Criminal Appeal No.1001 of 2008 are dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 01.12.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRIMINAL APPEAL NO.426 OF 2007 AND CRIMINAL APPEAL NO.1001 OF 2008

Date: 01.12.2022

PGR