Gedala Ganeswara Rao vs The State Of Ap
2022 Latest Caselaw 2518 AP

  THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

         CRIMINAL APPEAL No.1622 OF 2018
                      AND
      TRANSFER CRIMINAL APPEAL No.1 OF 2021

COMMON JUDGMENT :

      Appellant in Criminal Appeal No.1622 of 2018 is A.1,

and the appellants in Transfer Criminal Appeal No.1 of

2021 are A.2 and A.3, in Sessions Case No.77 of 2011 on

the file of the Assistant Sessions Judge, Vizianagaram.

The learned Assistant Sessions Judge framed charges- for

the offence punishable under Section 307 of the Indian

Penal Code, 1860 (for short, 'IPC') against A.1; for the

offence punishable under Section 307 IPC against A.2, and

for the offences punishable under Sections 307 and 353

read with 34 IPC against A.1 to A.3.


      2.   The learned Assistant Sessions Judge, vide

judgment dated 19.02.2018, found A.1 and A.2 not guilty of

the   offence   punishable   under Section 307 IPC and

accordingly acquitted them of the said charge, and found

A.1 to A.3 guilty of the offences punishable under Sections

307, 353 read with 34 IPC and accordingly convicted them

of the said offences.    As A.1 was absent on the date of

pronouncement of the Judgment on 19.02.2018, the

learned Assistant Sessions Judge issued non-bailable

warrant against him for his production, for hearing him

with regard to quantum of sentence. After hearing A.2 and
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A.3 with regard to quantum of sentence, the learned

Assistant Sessions Judge sentenced them to undergo

simple imprisonment for a period of seven years each and

to pay fine of Rs.5,000/- each, in default to suffer simple

imprisonment for a period of four months each, for the

offence punishable under Section 307 read with 34 IPC,

and further sentenced them to pay fine of Rs.5,000/- each,

in default to suffer simple imprisonment for a period of four

months each, for the offence punishable under Section 353

read with 34 IPC.


     3.    On 04.06.2018, the learned Assistant Sessions

Judge heard A.1 with regard to quantum of sentence and

sentenced him to undergo simple imprisonment for a period

of seven years and to pay fine of Rs.5,000/-, in default to

suffer simple imprisonment for a period of four months, for

the offence punishable under Section 307 read with 34 IPC,

and further sentenced him to pay fine of Rs.5,000/-, in

default to suffer simple imprisonment for a period of four

months, for the offence punishable under Section 353 read

with 34 IPC.


     4.    Challenging   the       convictions   and   sentences

recorded against him, A.1 preferred Criminal Appeal

No.1622 of 2018 before this Court.        A.2 and A.3 preferred

Criminal Appeal No.11 of 2018 on the file of the learned
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District and Sessions Judge, Vizianagaram, challenging the

convictions and sentences recorded against them.        The

said appeal was withdrawn from the file of the learned

Sessions Judge and transferred to the file of this Court for

hearing along with Criminal Appeal No.1622 of 2018, as

per order dated 24.09.2019 in Transfer Criminal petition

No.33 of 2019, and renumbered as Transfer Criminal

Appeal No.1 of 2021.


     5.   Brief facts of the case are as follows:


     On the instructions of the Deputy Superintendent of

Police, Anakapalli and the Inspector of Police, Anakapalli

town, on 23.04.2010, P.W.1-Sub Inspector of Police along

with P.W.2 and others, went to arrest A.1, who was

absconding, in connection with crime No.8 of 2010 of

Sabbavaram police station registered for the offences

punishable under Sections 447, 506 and 323 IPC.        They

went to house of A.1 at Vizianagaram at about 1.00 PM on

that day and found A.1 in the house. A.1 identified P.W.1

and others as police personnel and instigated his pet dogs

i.e. Rotwillers, which are two in number, against them with

a view to kill them and assaulted through the said dogs

from discharging their duties.    P.W.1, who was leading the

team, was attacked by the dogs.        But, P.W.1 narrowly

escaped and got down from the steps of first floor of house
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of A.1.     P.W.1 noticed the Inspector of ACB by name

Satyanarayana at the ground floor of house of A.1.                     On

enquiry, the Inspector of ACB informed that he came there

for valuation of assets of A.1 in connection with ACB case

against A.1. The Inspector of ACB requested P.W.1 to stop

their    investigation   in    view      of    their   investigation    in

connection with ACB case against A.1.                      After taking

instructions    from     the    superiors,       P.W.1     returned     to

Anakapalle     by   posting     a       Head     Constable    and      two

constables for surveillance at the house of A.1.


        On 24.04.2010 at about 12.00 noon, P.W.1 went to

the house of A.1 along with P.W.2 and another.                    P.W.1

came to know that A.1 was absconding from the early

hours of 24.04.2010.          P.W.1, with a view to enquire the

matter, was trying to enter into house of A.1, along with his

staff, and when they reached entrance gate of house of A.1,

they found A.2, who is wife of A.1, present inside the house.

When P.W.1 tried to enquire with A.2 about A.1, she

instigated two pet dogs to attack them with a view to

obstruct them from discharging their legitimate duties. It is

alleged that one of the dogs bit P.W.1 and caught hold his

blue colour jeans pant and tore it away.               Mean while, A.2

informed A.3 over phone about the incident. A little later,

P.W.1 received a phone call to his mobile number. The said

phone number belongs to A.3, who is none other son of A.1
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and A.2.     It is alleged that A.3 abused P.W.1 and

threatened him to kill, on phone.      It is alleged that A.3

shouted on P.W.1 that he would approach Human Rights

Commission against them.


      On 24.04.2010 at about 7.30 PM, P.W.6 received a

report from P.W.1, and on the strength of the said report,

registered a case in crime No.82 of 2010 of II Town police

station, Vizianagaram for the offences punishable under

Sections 353, 307 read with 34 IPC and submitted original

FIR to the court concerned.       Ex.P3 is the original FIR.

P.W.6 examined P.Ws.1 to 4 and others and recorded their

detailed statements. On 25.04.2010, P.W.6 inspected the

scene of offence and secured presence of P.W.5 and another

and prepared rough sketch of the scene of offence in their

presence.   Ex.P4 is the rough sketch prepared by P.W.6.

P.W.6 observed two Rotwiller black colour dogs and took

photographs of presence of the dogs at the scene of offence.

On the same day, at about 12.30 hours, P.W.6 along with

women constable, visited house of A.1 and arrested A.2.

After completion of investigation, P.W.6 filed charge sheet,

which was taken on file as P.R.C.No.5 of 2011 on the file of

the   Additional   Judicial   Magistrate   of   First   Class,

Vizianagaram.
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     6.    On appearance of the accused, copies of case

documents, as required under Section 207 Cr.P.C., were

furnished to the accused, and thereafter, the case was

committed to the Court of Session.       On committal, the

learned Sessions Judge numbered it as S.C.No.77 of 2011

and made over the learned Assistant Sessions Judge for

disposal in accordance with law.


     7.    The substance of charge against A.1 is that on

23.04.2010

at about 1.00 PM, P.W.1 went to house of A.1,

which is situated Poolbagh Colony, Vizianagaram, along

with P.Ws.2, 3 and others, and on seeing them, A.1

identified them as police personnel, commanded his two

black ferocious dogs to attack them with an intention to kill

them, and that one of the dogs caught left leg of P.W.1 and

caused small hole injury and they escaped from the dogs

and went away and he is liable for punishment for the

offence punishable under Section 307 IPC.

The substance of charge against A.2 is that on

24.04.2010 at about 12.00 noon, when P.W.1 and other

police personnel went to house of A.2, on seeking them, A.2

commanded her dogs to attack the police party with an

intention to kill them and she is liable for punishment for

the offence punishable under Section 307 IPC.

The substance of charge against A.1 to A.3 is that on

24.04.2010 in noon time, when P.W.1 and his staff went to

their house, at the instigation of A.2, A.3 scolded the police

personnel with the cell phone to the cell phone of P.W.1

and threatened them with dire consequences that they

would kill the police personnel by commanding the dogs

and also would file false report before the Human Rights

Commission against P.W.1 and others and that A.1 to A.3

assaulted and threatened P.W.1 and his staff members with

common intention attempted to kill and caused obstruction

to perform their duty, and that they are liable for

punishment for the offences punishable under Sections 307

and 353 read with 34 IPC.

The accused pleaded not guilty and claimed to be

tried.

8. In support of its case, the prosecution examined

P.Ws.1 to 6 and marked Exs.P1 to P5 and M.O.1. After

completion of the prosecution evidence, the accused were

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 evidence was adduced on behalf of the

accused.

9. The learned Assistant Sessions Judge, vide the

impugned judgment, convicted and sentenced the

appellants/A.1 to A.3 as stated supra. Challenging the

same, the present Criminal Appeals came to be filed.

10. Learned counsel for the appellants strenuously

contended that the independent witness, who is examined

as P.W.5, did not support the case of prosecution and he

was treated hostile by the prosecution. It is the further

submission of the learned counsel that there are several

inconsistencies in the evidence of prosecution witnesses

and the prosecution failed to establish that any incident

occurred on 23.04.2010 in the house of A1. It is his

further submission that the prosecution witnesses, who

were allegedly injured, were not examined by Doctor and no

medical evidence is forthcoming on behalf of the

prosecution; that the present case is a counter blast to the

case filed by A.2 against P.W.1; that no photographs of the

alleged dogs were produced in evidence though P.W.6,

investigating officer, deposed that they took photos of

presence of two Rotwiller black colour dogs at the scene of

offence; that there is no plausible forthcoming from the side

of the prosecution for their non-production, and raised

various other grounds. Hence, he prayed to set aside the

convictions and sentences recorded against the appellants/

A.1 to A.3 in the impugned judgment and acquit them of

the said offences.

11. Per contra, learned Assistant Public Prosecutor

appearing for the State contended that the prosecution is

able to bring home guilt of the appellants/A.1 to A.3 that

knowing pretty well that the prosecution witnesses are

police personnel, who have come to the house of the

accused for the purpose of investigation, the accused

caused obstruction to them in discharge of their duties and

instigated their dogs to attack the police personnel.

12. Now, the point that arises for consideration of

this Court is whether the prosecution is able to bring home

the guilt of the appellants/A.1 to A.3 for the offences

alleged them beyond reasonable doubt ?

13. This Court perused the record. According to

P.W.1, he and others went to house of A.1 to arrest A.1 in

connection with crime No.8 of 2010 of Sabbavaram police

station on 23.04.2010, A.1 identified them as police

personnel and instigated his pet dogs 'Rotwillers', two in

number, black in colour, with a view to kill them and

assaulted them through the said dogs in discharge of their

official duties. Admittedly, going by the evidence of P.W.1,

absolutely no incident had taken place on the said date i.e.

23.04.2010, for the reason that when P.W.1 was coming

down, he found Inspector of ACB and the question of he,

narrowly escaping from the dogs, would not arise.

Further more, even going by the evidence of P.W.1, the

Inspector of ACB requested P.W.1 and others to stop

investigation in view of the fact that their investigation in

connection ACB case as against A.1 was going on. P.W.1,

on taking instructions from his superiors, left the place on

that day. Therefore, it can be safely inferred that no

incident had taken place on 23.04.2010.

14. On 24.04.2010 at about 12.00 noon, P.W.1 went

to the house of A.1 along with P.W.2 and others and found

that A.1 was absconding. When P.W.1 and others were

entering into the house of A.1, it is alleged that A.2

instigated two pet dogs with a view to obstruct them from

discharging their duties. One of the dogs bit P.W.1 and

caught hold of his blue colour jeans pant and tore it away.

Thereafter, A.2 informed A.3 about the incident over phone.

P.W.1 received a call to his mobile number from

8008000523. It is evident from the deposition of P.W.1 that

at the time of giving the evidence, it is observed the learned

counsel for the defence as well as the trial Court that P.W.1

had written the phone number on his left palm. A.3 is

alleged to have abused and threatened to kill P.W.1, over

phone.

15. In cross-examination of P.W.1, he categorically

admitted that he did not mention in Ex.P1 that there was a

warrant of arrest against A.1 carried by him at the time of

visiting house of A.1. At the time of going to arrest A.1,

P.W.1, who is police personnel, was not in his uniform and

was wearing casual clothes. In cross-examination, P.W.1

also admitted that M.O.1 is thick jeans pant and he did not

receive any bite injury. P.W.1 also admitted that when he

enquired about A.1, mean while, A.2 instigated the dogs

against them. He did not mention the same before the

police. P.W.1 has not made any mention in Ex.P1,

particularly that on 24.04.2010, that there was a dog bite

and M.O.1 was torn. It is also admitted by P.W.1 in cross-

examination that it is not mentioned in Ex.P1 that they

informed A.1 about their identity and the purpose of their

visit to the house of A.1, and that A.1 identified them as

police personnel on 23.04.2010. P.W.1 was involved in

an ACB case and it was pending by the date of his deposing

before the trial Court. A suggestion was made to P.W.1 to

the effect that on 24.04.2010, P.W.1 visited house of A.1,

and by that time A.2 was present and that P.W.2 enquired

about A.1 and caught hold tuft of hair of A.2, dragged her

to the ground floor and misbehaved with her and outrage

her modesty in the presence of local people, and that local

people rescued A.2 from his hands and A.2 gave a report

against P.W.1 and the same was registered as a criminal

case and as a counter blast to the said case, P.W.1 filed the

present case as against A.1 to A.3. P.W.1 denied the

suggestion.

16. P.W.2, who worked as Sub Inspector of Police,

Anakapalle rural police station at the relevant point of time

of the incident, deposed that as per the directions of his

superior officers, himself, P.W.1 and others went to house

of A.1 in Vizianagaram on 23.04.2010 and noticed A.1 in

the first floor of the house, and immediately, A.1 instigated

his pet dogs (Rotwillers) to kill them, and one of the dogs

caught hold of his left side of pant and thereby the pant

was torn. It is his further evidence that again, on the next

day i.e. on 24.04.2010, himself and others went to the

house of A.1 at about 12.00 noon, and A.2 instigated two

pet dogs to attack him and others, and that they escaped

from the said pet dogs and stated that no injury was

caused on 24.04.2010.

17. P.W.3 also deposed on the same lines as that of

P.W.2.

18. P.W.4 is an independent witness, who is friend

of one Anil Kumar, who was cheated by A.1. He deposed

that he went along with police personnel on 24.04.2010

and learnt that A.1 was absconding. Meanwhile, A.2

instigated her pet dogs on police personnel. The dogs

caught hold of pant of P.W.2 and thereby pant of P.W.2 was

torn. Thereafter, A.3 called over phone and abused P.W.1

in filthy language.

19. This Court, on perusing the evidence on record,

found that there is absolutely no untoward incident said to

have taken place on 23.04.2010. On the first instance,

P.W.1 states that they narrowly escaped from the pet dogs

and got down from the house of A.1. Thereafter, on

24.04.2010, once again, the police personnel went to the

house of A.1, and on instigation of A.2, the dogs attacked

P.Ws.1 and 2 and one of the dogs had bitten P.W.1 and

caught hold of blue colour jeans pant and tore it away.

There is absolutely no recovery made to come to the

conclusion whether pant was torn or not. P.W.1 was not

referred to Doctor and no Doctor has been examined by the

prosecution to prove the case that the incident is said to

have been taken place on the said date. On a perusal of

the evidence of P.W.1 would also go to show that P.W.1 had

written mobile number of A.3 on his palm and he was

reading out the number by looking at the palm while giving

evidence. The same was pointed out by even the trial

Court. On a reading of the entire evidence would make it

clear that the incident did not happen as put forth by the

prosecution. The present complaint seems to have filed

been filed as a counter blast to the case which has been

filed by A.2 against P.W.1.

20. The evidence of P.W.2 also goes to show that the

incident did not take place as put forth by the prosecution

for the reason that if he was attacked by one of the

Rotwiller dogs and when he was injured because of the dog

bite, obviously, he would have been taken to a Doctor. But,

the prosecution version is silent in respect of the treatment

taken by P.W.1 or P.W.2. It is for that reason, there is any

amount of ambiguity to come to the conclusion whether the

said incident is said to have taken place as suggested by

the prosecution. Admittedly, no photographs of the

Rotwiller dogs have been marked to conclude whether the

said dogs were present in the house or not. Further, a

perusal of the evidence also goes to show that there were

CC TVs around the house of A.1. There is no reason why

the investigating officer has not seized CCTV footage to

arrive at the conclusion that the incident had taken place,

as suggested by the prosecution. There are number of

inconsistencies in the evidence of P.Ws.1 and 2, which go to

the root of the case, whether the incident had taken place

in the manner suggested by the prosecution. In view of the

same, this Court is not satisfied with the reasoning given by

the court below and the convictions and sentences recorded

by the trial Court are liable to be set aside.

21. In the result, the convictions and sentences

recorded against the appellants/A.1 to A.3 for the offences

punishable under Sections 307 read with 34 and 353 read

with 34 IPC in the impugned judgment are set aside. The

appellants/A.1 to A.3 are found not guilty of the offences

punishable under Sections 307 read with 34 and 353 read

with 34 IPC and accordingly acquitted of the same. The

fine amounts, if any, paid by the appellants/A.1 to A.3

shall be refunded to them.

22. The Criminal Appeals are, accordingly, allowed.

Miscellaneous petitions pending, if any, in the

Criminal Appeals stand disposed of.

__________________________________ JUSTICE K.SREENIVASA REDDY 14.06.2022 DRK

THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

COMMON JUDGMENT in

CRIMINAL APPEAL No.1622 OF 2018 AND TRANSFER CRIMINAL APPEAL No.1 OF 2021

14.06.2022