Andhra Pradesh High Court - Amravati
Mekala Venkata Ramanaiah, Spsr ... vs P.P., Hyd on 6 September, 2022
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
Criminal Appeal No.983 of 2014
JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)
This Criminal Appeal is filed by accused 1 to 9 aggrieved by
the judgment dated 19.09.2014 in Sessions Case No.78/2010 passed
by learned IV Additional District & Sessions Judge, Nellore wherein
learned judge found all the accused 1 to 9 guilty of the offences
punishable under Sections 302 r/w 149, 147, 148, 341, 324 and 326 of
IPC and sentenced them as follows:
(i) For the offence under Section 302 r/w 149 IPC, life
imprisonment and fine of Rs.2,000/- each and in
default, suffer 5 years simple imprisonment (for short
'SI').
(ii) For the offences under Sections 147 and 148, two
years rigorous imprisonment (for short 'RI') coupled
with fine of Rs.1,000/- each and IDS six months SI.
(iii) For the offences under Section 341 IPC, RI for one
month coupled with fine of Rs.500/- IDS 15 days SI.
(iv) For the offences under Section 324 r/w 149 IPC three
years RI coupled with fine of Rs.1,000/- IDS to
undergo one year SI.
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(v) For the offences under Section 326 r/w 149 IPC three
years RI coupled with fine of Rs.1,000/- IDS one year
SI.
2. The matrix of the case which led to above conviction and
sentence is thus:
(a) All the accused are residents of Marripadu Village, Sangam
Mandal, Nellore district and they are supporters of CPI(M) party.
Accused No.1 is leader of CPI(M) Party in Marripadu Village, who
ruled the village for about two decades. A-1 was involved in other
criminal cases. The deceased Mekala Bhaskaraiah, son of
Balaramaiah was resident of Marripadu, who was originally supporter
of CPI(M) party. Recently, he joined in Congress-I party. Mekala
Padmavathi/PW-1 is his wife, who was elected as a MPTC member
on behalf of the Congress-I Party by defeating CPI(M) candidate.
The popularity of Mekala Baskaraiah gradually increased due to his
social service to the people and the dictatorial and unruly behavior of
A-1, paved the way for the successive political victories of
Bhaskaraiah and Congress-I party. A-1 could not digest successive
defeats and loss of political clout in the village and other
neighbouring areas. A-1 felt that the deceased was a hurdle to him to
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his political future and to recapture power. Hence A-1 decided to kill
the deceased and openly gave threats to him that he would kill him.
(b) On 23.08.2006 at about 8-00 P.M., the deceased returned to
his house in Marripadu in an Auto after securing diesel for tractor and
alighted near Badibavi Centre and proceeding towards his home.
Meanwhile, all the accused who were already armed with deadly
weapons like iron rods and knives with common object of killing him
surrounded the deceased and A-1 shouted and instigated the other
accused to kill the deceased. Immediately the wife and son (PW1 and
PW11) of deceased, on seeing the accused surrounding him, rushed
towards Badi Bavi Centre. A-1 armed with an iron rod beat the
deceased on his both legs. Receiving those injuries, deceased fell
down on the ground. A-4 and A-5 beat him on his right thigh. PW-1
with folded hands prayed the accused not to kill her husband but A-4
pushed her and her son aside. Then A-2 and A-3 beat deceased with
rods on his both legs. A-7 poked several times with an iron rod on his
left abdomen. A-6 beat him with iron rod on his left knee and A-8
beat him with iron rod on his right knee in the presence of PWs-2 to 6
who also requested them not to injure the deceased. The accused paid
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deaf ear and threatened them with dire consequences. Then A-1
instigated A-9 to hack the deceased with knife and A-9 hacked the
deceased on his head with a knife (Moddu Kathi) and on receiving
injuries on vital parts, the deceased became unconscious. Meanwhile,
K. Bhaskar Reddy, A. Satyanarayana and K. Bhaskar (PWs-7, PW-8
and LW-9), who are police constables on picket duty in Marripadu,
rushed to the scene of offence along with other villagers. After
attacking the deceased, the accused left the scene of offence by
threatening all those who gathered at scene of offence.
(c) Immediately, the deceased was shifted to Nellore in the
Auto of KamatamVenu/PW-10. On the way to Nellore, the deceased
succumbed to the injuries and died. At Government Hospital, Nellore,
PW18-the Medical Officer declared him dead. Thereafter, PW1 got
drafted Ex.P1-report and sent through PW2 to the Sangam P.S. and a
case in Cr.No.125/2006 was registered.
(d) After investigation, PW-19-The Inspector of Police,
Butchireddipalem laid charge-sheet against all the accused for the
offences under Sections 147, 148, 341, 326, 324, 307 r/w 149 IPC.
The trial Court framed charges against accused for the aforesaid
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offences and the accused pleaded not guilty and claimed to be tried.
The plea of the accused is one of total denial of offence. They
claimed that due to political rivalry, they were falsely implicated in
the case by the opposite party leaders through PW1.
(e) During trial PWs-1 to 19 were examined and Ex. P1 to P24
marked and MOs 1 to 9 were exhibited on behalf of prosecution. On
behalf of defense Ex.D1 and D2 were marked.
(f) After closure of prosecution evidence the accused were
examined under Section 313 Cr.P.C, wherein also they denied the
commission of offence and claimed that the prosecution evidence was
false. They did not choose to adduce any oral evidence.
(g) The trial Court on appraisal of the evidence, particularly the
evidence of PWs 1 to 8 and 11, came to conclusion that the
prosecution established its case beyond all reasonable doubt and
accordingly convicted and sentenced all the accused as stated supra.
Hence the Criminal Appeal.
3. Heard arguments of Sri T.Nagarjuna Reddy, learned counsel
for the appellants / A1 to A4, A7 &A9, Sri Veera Reddy, learned
counsel for A8 and Smt. C.Vasundhara Reddy, learned counsel for
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A5 & A6, and learned Additional Public Prosecutor representing the
State.
4. Learned counsel Sri T.Nagarjuna Reddy would argue that
Marripadu Village is admittedly a faction ridden village and there
were political feuds between the members of CPI(M) party and
Congress party. In fact, even according to the prosecution, the
murder of Mekala Bhaskaraiah took place due to political factions. In
that view, the trial Court should have taken note of the fact that there
was every possibility of implication of innocents in the opposite party
to wreak the political vengeance. Therefore, the trial Court ought to
have given serious consideration to the grave lapses and delays in
important procedural aspects and inconsistencies and improvements
in the prosecution evidence as projected by the defence side and
ought to have analyzed the facts and evidence to decide whether the
accused were really the culprits in the instant case or not. However,
unfortunately the trial Court has not considered the important points
of arguments raised by the accused in right perspective and convicted
the accused on the basis of interested and partisan evidence of the
witnesses.
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(a) In expatiation, he firstly argued that there was no
trustworthy and reliable evidence of independent witnesses to hold
that the accused are guilty. All the eye witnesses are partisan
witnesses and inimical towards all the accused. When the incident
was allegedly occurred in the early part of night at 8.00 P.M. at the
Badi Bhavi junction of the village which is a open place surrounded
by many houses, there would not be a dearth for independent
witnesses if the incident was occurred in the manner projected by the
prosecution. However, only interested and partisan witnesses alone
were selectively chosen by the I.O. In further expatiation he would
argue, of the eye witnesses, PW1 is the wife of the deceased; PW2
contested against A1 in the Panchayat elections and won, but of
course, he did not support prosecution case; PW3-Boddu Narasaiah
and PW4-Puliboina Ramanaiah are the accused in a criminal case on
the charge of hurling bombs against the present A1 and in order to
budge A1 and bring to their terms, PWs 3 and 4 were selected; PW5-
Kukati Kondaiah admittedly has some misunderstandings with A1
and left him and joined Congress party and he developed enmity with
A1 and other accused. Further, he admitted that Badi Bhavi centre is
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surrounded on all sides by the residential houses of Samadhi Madhu,
Katugunta Ragaiah, Bontha Sudhakar and Golla Krishnaiah. Beyond
those houses, the house of PW 4 is situated. Learned counsel
vehemently argued that leaving the above independent witnesses, the
prosecution has selectively chosen PW4. Then PW6-Kapu Kajaiah is
concerned, he along with PWs 2, 3 and 4 left the party of A1 and
joined Congress party and so he has political rivalry with A1. PWs 7
and 8 - the Police Constables though claimed that they were attending
picketing duty at Marripadu and on hearing the hue and cry of the
deceased they rushed to the scene and witnessed the incident,
however, they did not produce any record to show that on the date of
incident picket post was arranged in Marripadu village and these
witnesses were on duty. Hence, their evidence is of no value. PW11
is the son of deceased and he too is an interested witness and his
evidence cannot be relied upon. Learned counsel thus argued that the
prosecution examined only interested and partisan witnesses by
hushing up the independent witness.
(b) Secondly, learned counsel argued that there was
inexplicable delay in lodging the FIR and also in forwarding the FIR
9
along with original report to the jurisdictional Magistrate. He would
argue that in a faction case like this, prompt registration of FIR and
dispatch to the concerned Court are essential to avoid twisting of facts
and implication of innocents. However, in the instant case though
offence allegedly took place at 8.00 P.M. on 23.08.2006, the FIR was
lodged with Sangam Police Station only at 12:30 A.M on the
midnight of 24.08.2006. Even the registration of FIR at the given
time is also a highly doubtful fact for the reasons to be submitted in
the next point. Even assuming that it was registered at 12:30 A.M,
still it was a belated lodging of FIR after consultation with the MLA
Polamreddy Srinivasulu Reddy and other leaders of the party. Added
to it, the FIR reached the Court of the Additional JFCM, Kovvur at
09.50 A.M. on 24.08.2006. The distance between Sangam P.S. to the
Magistrate's Court is only 35 KMs and no reason for the delay was
shown by the police. All these laches, he would stress upon, indicate
that the FIR was not registered at the given time and it was a product
of long deliberations and consultations. Hence, the prosecution case
cannot be relied upon. On the requirement of prompt lodging of FIR
and its dispatch to Magistrate, learned counsel placed reliance on (i)
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Thulia Kali v. The State of Tamilnadu1 (ii) Meharaj Singh
(L/Nk.) v. State of U.P.2 (iii) Nallabothu Ramulu @
Seetharamaiah v. State of Andhra Pradesh3 and (iv) Bheemgonda
v. State of Andhra Pradesh4.
(c) Thirdly, learned counsel would argue, apart from the delay
as stated supra, Ex.P1 report has another inherent defect in it and
thereby Ex.P1 cannot be legally recognized as First Information
Report. According to PW1, on her dictation, one of her villagers
drafted Ex.P1-report at DSR Government Hospital, Nellore and she
signed on it and sent the same to Sangam PS through PW2-Gosu
Hazarathaiah. However, PW2 totally denied the prosecution case.
He stated that he did not witness any incident and he did not
accompany PW1 to DSR Government Hospital and most importantly,
PW1 did not send Ex.P1 report through him to Sangam PS. In that
view, the present Ex.P1 basing on which FIR was claimed to be
registered cannot be said to be the report lodged by PW1. On the
other hand, the police, in order to accommodate the political leaders,
might have fabricated Ex.P1 report in the name of PW1 by
1
(1972) 3 SCC 393
2
(1994) 5 SCC 188
3
(2014) 12 SCC 261
4
2017 (1) ALD (Crl.) 93
11
implicating the accused. He placed reliance on Nakka Sreenivasa
Rao @ Sreenu v. State of Andhra Pradesh5 to contend that when
there is a material contradiction in the evidence as to the genesis of
FIR, the prosecution case has to be doubted.
5. Learned counsel would further argue that for another reason
also Ex.P1 cannot be treated as the earliest report on the incident.
According to PWs 7 and 8-constables, they were on picketing duty at
Marripadu and after witnessing the incident, PW8 informed to the S.I.
and C.I. of police through VHF wireless set about incident and within
one hour the C.I. of police K.Malyadri came to the spot and enquired
the witnesses. Even if we believe Ex.P.1 as that of PW1, it should be
held that she lodged report long after C.I. of police commenced
investigation basing on the information of PW8. Therefore, the
information sent by PW8 about the incident was the first in point of
time and all other reports i.e., Ex.P1 and the report said to have been
sent by PW1 through PW2 were all hit by Section 161 Cr.P.C. He
thus prayed to allow the appeal and set aside the lower Court's
judgment.
5
2019 (1) ALD (Crl.) 672
12
6. Smt. C.Vasundhara Reddy, learned counsel for A5 & A6
argued in the same lines. Stressing upon the delay, she would argue
that in spite of receiving the information from PW8, the S.I. and C.I.
did not bother to register FIR knowing that it was the earliest
information relating to the murder. However, they acted upon and
visited the scene of offence basing on the earlier information.
Therefore, the subsequent report i.e., Ex.P1 said to be submitted by
PW1 through PW2 is hit by Section 161 Cr.P.C. On this aspect, she
cited the decision in State of Andhra Pradesh v. Punati Ramulu6.
Nextly, learned counsel argued that in spite of availability of many
independent witnesses, the prosecution has chosen only those persons
who are inimically disposed of towards accused. Hence, the
prosecution case is totally unreliable.
7. Sri P. Veera Reddy, learned counsel for A8 also argued in
identical manner contending that Ex.P1 was hit by Section 161
Cr.P.C. statement in view of the earlier information provided by
PW8. He further argued that there was inordinate delay in
dispatching the FIR to the Magistrate.
6
1994 (Suppl) SCC 590 = 1993 AIR (SC) 2644
13
8. Per contra, learned Additional Public Prosecutor while
supporting the judgment of trial Court, would argue that in this case a
number of eye witnesses who witnessed the incident have
categorically deposed about the presence of all the accused and their
participation in the crime and their individual overt acts in brutally
killing the hapless deceased and their testimony was not shattered in
the cross examination and therefore, relying upon their evidence, the
trial Court has rightly convicted the accused. In view of the
unimpeachable evidence of eye witnesses, he would argue, the minor
defects if any in the prosecution case would not debilitate the
prosecution case.
(a) Nextly, refuting the argument of the appellants on the
aspect of delay in lodging FIR, learned Additional Public Prosecutor
argued that there was absolutely no delay in giving report to the
police. He would submit that the offence took place at about 8.00
P.M. and since PW1 rushed to the DSR Government Hospital,
Nellore along with her injured husband, she could not give report
immediately. However, after her husband was officially declared
dead by the Doctors at the Government Hospital around 11.00 P.M.,
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she got prepared a report and sent to SHO, Sangam PS through PW2
and the police registered FIR at 00.30 hours on 24.08.2006. Thus, in
the entire process, there was no delay in lodging report with the
police.
(b) Regarding the arguments of the appellants that PW2 did not
carry the report to the Sangam PS and hence Ex.P1 was not the report
which was submitted by PW1 and it was a report fabricated by the
police at the instance of political leaders, learned Additional Public
Prosecutor would submit that the said argument is totally baseless.
While admitting that PW2 turned hostile and denied the entire
prosecution case, learned Additional Public Prosecutor argued that
PW2 is admittedly an accused in a criminal case on the file of Judicial
Magistrate of First Class, Kovvur, wherein the present A1 is the de
facto complainant. Therefore, it is obvious that he was won over by
A1 probably on the promise of securing his acquittal in that case.
Therefore, the hostile evidence of PW2 cannot be accepted as basis to
discard Ex.P1. On the other hand, PW17 - the SI of Police, Sangam
PS clearly deposed that he registered the Cr.No.125 on the basis of
Ex.P1 report brought to the police station and presented by PW2 on
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the night of 24.08.2006. His evidence confirms that Ex.P1 was
promptly lodged and FIR was registered without any delay. While
admitting that there was some delay in dispatching the FIR and
original report to Magistrate, learned Additional Public Prosecutor
would argue that since the FIR was registered promptly in time, the
delay if any in its dispatch to the Magistrate cannot be viewed
seriously to suspect the prosecution case. On this aspect, he relied
upon Anjan Dasgupta v. State of West Bengal7.
(c) Regarding the arguments of the appellants that the earliest
information was provided by the PW-8 through VHF Set to PW17
and PW19 basing on which, though FIR was not registered, still the
police rushed to the scene and commenced the investigation and
examined the witnesses and therefore the later information under
Ex.P1 was hit by Section 161 Cr.P.C and since the earliest
information was concealed by the police, the prosecution case shall
be discarded is concerned, denouncing the same, learned Additional
Public Prosecutor while admitting that on PW8's information, PW17
or PW19 did not register the FIR immediately, however, would argue
that in view of the tense situation in Marripadu Village, probably the
7
(2017) 11 SCC 222 = 2016 SCC Online SC 1390
16
police might have given importance to visit the scene of offence first
and oversee the law and order conditions in the village rather than
registering the FIR. He argued, in that process, PW19 immediately
rushed to the village and enquried the villagers about the incident.
While he was still in the village, in the meanwhile, PW1 sent Ex.P1
report to Sangam P.S. through PW2, basing on which PW17
registered FIR and sent copy of express FIR to PW19, which he
received at 2.00 A.M. and commenced the investigation. Learned
Additional Public Prosecutor would thus argue that having regard to
the chronology of events, it is clear that the time lag between the
information of PW8 and Ex.P1 was minimum and hence, non-
registration of FIR on the information of PW8 cannot be viewed
seriously. He thus prayed to dismiss the appeal.
(d) Learned Senior Counsel Sri Ch. Dhanunjaya addressed
arguments on behalf of de-facto complainant in tune with learned
Additional Public Prosecutor. He would argue that all the witnesses
are the residents in and around the scene of offence and hence their
evidence is probable and natural. Further, each witness has deposed
about the overt acts of accused and also the presence of other
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witnesses at the scene. Their ocular evidence is corroborated by the
medical evidence. Therefore, the prosecution has amply established
the guilt of accused. He also argued that there was no delay in
registering the FIR and that Ex.P1 is the earliest and full version
relating to the offence.
9. The points for consideration in this appeal are:
(a) Whether the deceased Mekala Bhaskaraiah met with
homicidal death on the night of 23.08.2006 due to the
injuries sustained by him at Badi Bhavi centre in
Marripadu village?
(b) If point No.1 is held affirmatively, whether all the
appellants / accused are responsible for such death and
are guilty of the offences with which they are charged
by the trial Court?
10. POINT No.1: The oral evidence of eye witnesses i.e., PW1, PW3
to PW8, PW11 and PW13; the evidence of PW15 who is witness for
the inquest conducted by PW19-the C.I of Police and the evidence of
PW16-the post mortem Doctor coupled with the documentary
evidence i.e., Ex.P18-Inquest report and Ex.P19-Postmartem
certificate would all cumulatively show that the deceased Mekala
Bhaskaraiah sustained grievous injuries on the night of 23.08.2006 at
about 08:00 PM near Badi Bhavi centre in Marripadu Village and
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died on the way to the DSR Government Hospital, Nellore and thus
suffered homicidal death. While the eye witnesses spoke about
genesis of the injuries suffered by the deceased in the hands of his
assailants, PW-15 deposed that himself Mudi Balakota Reddy (LW-
19) and Puliboyina Seenaiah attended the inquest conducted by PW19
over the dead body of deceased at the headquarters hospital, Nellore
and noticed twelve injuries on the dead body and opined that the
apparent cause of death of deceased was due to murder. Be that it
may, Column No.VII of Ex.P18 - Inquest Report shows that the
deceased suffered twelve grievous injuries, some of which were
fractures. Thus the oral evidence of PW-15 and Ex.P18 corroborates
with each other. Then PW-16 - the postmortem doctor deposed that
he found fracture injuries on the right thigh, right leg, right ankle
bones, left thigh bone and both bones of left leg of the deceased. He
also found fracture of 1, 2, 3, 4 and 5thribs on the right side with lung
contusion. He also noticed fracture of left parietal bone with extra
dural haematoma. He deposed that the death of deceased was due to
extra dural haematoma on the left side of the brain with hypovolemic
shock and accordingly issued Ex.P.19-postmartem certificate. All the
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fracture injuries, particularly the fracture injury on the left parietal
bone of the skull and fracture on the right side ribs would indicate,
whoever caused such injuries, must have caused with an intention to
kill the deceased. Therefore the uncontroverted oral and documentary
evidence would clearly establish that the deceased suffered homicidal
death. In fact, the accused have not disputed the factum of homicidal
death of deceased but their contention is that they were not
responsible for his death and when some unknown persons committed
his murder, they were falsely implicated.
Therefore, it has now to be seen whether accused were guilty of
the murder of the deceased, in the point infra.
11. POINT No.2
According to prosecution the circumstances which led to the
murder of deceased are thus:
Initially the deceased and A1 belonged to CPI(M) party and
later the deceased joined Congress Party and sometime prior to his
death, elections took place and deceased's wife i.e., PW1 contested as
MPTC against one Rukminamma who was supported by A1 and PW1
won the elections. Later, in the panchayat elections, PW2- Gosu
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Hazarathaiah was supported by the deceased and he won against A1.
Since then A1 and his party men bore grudge against the deceased
and once A1 threatened the deceased to kill him. While so, on
23.08.2006
at about 08:00 PM the deceased returned to Marripadu
from Butchireddipalem village having purchased diesel for his
tractor. While he alighted auto at Badi Bhavi Centre and proceeding
to his home, all the accused waylaid him with iron rods and knives
and attacked him and caused grievous injuries. On hearing the Galata
PW1 and PW11 rushed to the scene and requested the accused not to
injure him but the accused pushed them aside and A9 hacked the
deceased with Moddu Katti on his head and deceased fell
unconscious. PWs 2 to 6 and PW13 who are the neighbours rushed
there and witnessed the incident. They too tried to intervene but the
accused threatened them. PWs 7 and 8 the police constables who
were on picketing duty also rushed to the spot and witnessed the
incident. After perpetrating the crime the accused skulked away.
PW1, PW2, PW6 and PW7 took the injured - deceased in the auto of
PW 10 to DSR Government Hospital, Nellore but on the way the
deceased succumbed to injuries.
12. We have carefully scrutinized the evidence of eye witnesses.
In their evidence, all of them claimed to have rushed to the scene on
hearing the Galata and cries and witnessed all the accused attacking
deceased with iron rods and A9 hacking the head of the deceased with
MO-3. They deposed about individual acts of the accused and the
presence of other witnesses consistently.
Coming to the veracity of their evidence, admittedly all the eye
witnesses are residents of Marripadu Village and they have
acquaintance with all the accused. Further, their houses are located
within the vicinity of Badi Bhavi Centre i.e., the scene of offence.
For instance, the house of deceased, PW1 and PW11 is situated at a
distance of 140 Yards from the scene of offence as shown in Ex.P21.
The house of PW4 (Serial No.19 in Ex.P21) is situated nearer to the
scene of offence than PW1's house. The house of PW5 (Serial
No.14) is in close proximity to the scene of offence. PWs-2 and 3
who were sitting on a parapet wall near the scene of offence rushed to
the spot on hearing the cries. PW-6 who was at the house of PW-4
rushed along with him to the spot on hearing the cries. PWs-7 and 8
who were on picketing duty at PH Centre located at a distance of one
furlong rushed to the scene on hearing the cries. The incident was
occurred in the early part of the night i.e., at about 08:00 PM which is
generally not a sleeping time. As the incident was occurred in the
night time in the village where there will be no much din of the
vehicles, the sounds from the scene of offence can be said to be
audible to a reasonable distance. Therefore the possibility of above
witnesses witnessing the incident can be accepted. Of all the eye
witnesses, the house of PW5, as already stated supra, is very much
close to the scene of offence and only the road is intervening in
between. Hence we concentrated on his evidence.
13 PW-5 deposed that on the night of incident at about 08:00 PM
when he was at his house, he heard the hue and cry from outside and
when he came out he saw PWs-1 to 4 and PW6 and PW11 came to
the spot. He further stated that A9 was armed with a Moddu Katti
and other accused were armed with iron rods and they surrounded the
deceased. A1 bet on his both legs and ankles by shouting
"champandira naakodukini" (kill the fellow). Then deceased fell
down after receiving bleeding injuries. A4 and A5 bet him on his
legs indiscriminately causing bleeding injuries. A6 bet him on the
upper portion of knees with iron rod. A8 also bet on the upper
portion of his knee. A7 poked iron rod into the waist of the deceased
and bet on his legs. Similarly, A1 to A3 also bet on both the legs of
the deceased with iron rods indiscriminately. This witness further
deposed that when PW1 and PW11 requested the accused not to kill
the deceased, A4 pushed them. When himself, PW2, PW3 and PW6
made similar request, A4 threatened them with dire consequence.
After that, on the instigation of A1, A9 hacked on the head of the
deceased with a Moddu Katti and the deceased fell unconscious. This
witness was thoroughly cross-examined. Except eliciting that due to
some misunderstandings with A1, this witness, the deceased and
some others joined Congress (I) Party, no specific animosity was
extracted which necessitated this witness to speak falsehood against
the accused to implicate them in a false case.
14. Then we scrutinized the evidence of two independent witnesses
PWs 7 and 8. They were the constables who were engaged in
picketing duty in Marripadu. PW-7 deposed that due to the election
disputes between A1 and PW2, police picketing was arranged in
Marripadu Village and he was on duty along with PW8 and LW9
since one week prior to the incident. He stated that on the night of
incident while he was on picketing duty at 08:00 PM at Primary
Health Centre, which was at a distance of one furlong from Badi
Bhavi Centre, he heard the hue and cry from the Badi Bhavi Centre
and rushed to the spot and observed A9 hacking the deceased with a
ModduKatti (MO-3) on his head. On seeing the police, A9 escaped
and the other accused who were having iron rods surrounded the
deceased who laid on the road with bleeding injuries. PW1, PW2,
PW6 and this witness took the injured in the Auto Rikshaw of PW10
to the Government Hospital, Nellore but in the midway at
Potireddipalem, the deceased died and at the Government Hospital,
the Medical Officer at casualty ward declared him dead. In the
Cross-examination he stated that apart from the accused, and PWs 1
to 6, about 20 persons were present at the scene. PW-8 also deposed
in similar lines and in the cross-examination he stated that after
incident, he informed to PW17-the S.I. of Police and PW19-the C.I.
of Police through VHF wireless set about the incident. Except
suggesting that these witnesses deposed falsehood to oblige the local
leaders, which they denied, nothing specific was extracted to impeach
the credibility of their evidence. Thus the evidence of PW-5 - the
nearest witness and PWs 7 and 8 - the independent witnesses amply
corroborated the evidence of other eye witnesses on all the material
particulars. Further, the ocular evidence of the eye witnesses is
corroborated by the Medical Evidence. In that view, the argument of
the appellants that the PWs 1, 3 to 6 and 11 are interested witnesses
and their evidence shall be discarded cannot be accepted.
15. Coming to the next argument about delay in lodging FIR, we
see absolutely no force in this argument. It is true that prompt
lodging of FIR is essential, particularly in a factious case to avoid
twisting of facts and false implications. However, going by the
chronology of the proven facts in this case, we find no such delay,
much less inordinate and inexplicable delay. The offence took place
at about 08:00 PM in Marripadu Village. Since the deceased was
grievously wounded and in a critical state, PW1 who is his wife was
naturally anxious to provide him treatment and hence rushed to the
Government Hospital along with her husband. However on the way,
he died and the said fact was officially declared by the Medical
Officers at the Government Hospital around 11:30 PM as deposed by
PW1. It was only thereafter, she got drafted Ex.P1 report and sent
through PW2 to Sangam Police Station where PW17 registered FIR
basing on the said report at 00:30 hours on 24.08.2006. Further,
Ex.P18-the inquest report shows that the inquest on the dead body
was conducted at the mortuary room in the Government Hospital,
Nellore at about 10:15 hours on 24.08.2006. In the inquest report the
FIR Number is clearly mentioned as 125 of 2006 indicating that the
report was promptly lodged and FIR was registered at the given time.
Hence there is no delay in lodging report in our view.
16. In the decision i.e., Thulia Kali's Case (1 Supra) cited by
appellants, the Apex Court has cautioned that FIR in a criminal case
is an extremely vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The object
behind insisting upon prompt lodging of the report is to obtain early
information regarding the circumstances in which the crime was
committed, the actual culprits who took part in the crime etc., so as to
avoid embellishments in the report. In that case there was delay of
more than 20 hours in lodging the FIR. In Meharaj Singh's case (2
Supra) also the apex Court reiterated the same principle and
emphasized the need to give police report and its registration as FIR
at the earliest point of time particularly in a murder case. The apex
court provided some external checks to test whether FIR was
promptly lodged and registered. The first test is, forwarding the
original report and FIR to the nearest Magistrate without delay and
second one is the reference of FIR in the inquest report. These tests
are to ensure prompt registration of FIR.
In the instant case, as already stated, there was no delay in
filing report and lodging FIR and further, the same was mentioned in
the inquest report also which was conducted on the next day morning.
17. Then Nallabothu Ramulu's case (3 supra) also relates to delay
in registration of FIR. In that case the offence was occurred at 01:00
AM on the intervening night of 17.03.1993. Due to faction feuds,
about fifty accused allegedly waylaid the victims and attacked with
bombs and caused injuries and in the incident, some persons died and
some were injured. The incident took place at Dammalapadu Donka.
According to prosecution, the PW28 - the S.I. of Police and other
police staff reached the scene within 15 minutes and shifted the
injured first to the village and then to the hospital within an hour.
Some injured witnesses have narrated about the incident but PW28
did not record their statement and register FIR. However, the injured
PW1's dying declaration was recorded in the hospital as Ex.P1 at
03:15 AM basing on it only FIR was registered. Hon'ble Apex Court
found fault with non-registration of FIR at the earliest point of time
basing on the statements of the injured witnesses. Such carping was
mainly due to the background facts that the offence was occurred in
the dead of the night where the light facility was not available and the
prosecution's theory that with the help of tractor lights and torch
lights the assailants were identified was not possible as hurling of
bombs raised smoke and dust making it impossible to identify the
assailants and because of the said fact and also due to the existence of
factions in the village, the delay in registration of FIR gave scope for
improvements in prosecution case. However, on facts this decision
can be distinguished. In the instant case the offence took place in the
village and identification of assailants was not an issue. Thus, we
cannot countenance the argument of the appellants that there was
delay in lodging the report and registration of FIR.
18. Then, on another ground also it is argued that there was delay
in registration of FIR. The counsels for appellants argued that
admittedly PW8 informed to PW17 and PW19 about the incident
through VHF wireless set immediately after incident and within one
hour, PW19 reached the Marripadu village and enquired villagers. In
spite of receiving information from eye witness, PW17 did not
register FIR but he claimed to have registered FIR basing on Ex.P1
report said to have been brought to police station by PW2 much later.
19. We gave our earnest consideration. As can be seen from the
evidence of PWs 8 and 17, it is true that PW17 has not registered FIR
basing on the information sent by PW8 through VHF set. The
question is whether this failure of PW17 debilitate the veracity of
prosecution case. It is true that PW8 sent information through VHF
set to PW17 and PW19 within short time after the incident.
Similarly, PW1 also sent Ex.P1 report to Sangam PS through PW2
within reasonable time after the incident and the same was registered
as FIR by PW17. There is no much time difference between the
information of PW8 and Ex.P1 report sent by the PW1. Further, most
importantly, there is no inconsistency or discrepancy between the
information sent by PW8 and facts in Ex.P1 report, which is evident
from the depositions of PW1 and PW8. Further, PW1 and PW8
withstood the rigour of cross-examination and deposed about the
manner of occurrence of the incident to the satisfaction of the Court.
Therefore, mere defect on the part of the PW17 in not registering FIR
on the information of PW8 cannot be viewed with magnifying
glasses.
20. It is nextly argued that Ex.P1 cannot be said to be the report
given by PW1 because PW2 denied to have carried Ex.P1 to Sangam
Police Station and presented to PW17. Consequently, Ex.P20-FIR
cannot be said to be registered on the basis of report said to be sent by
PW1 to the Police Station. On the other hand, the local politicians
after deliberations might have created a false report and obtained
signature of PW1 and got registered the FIR. Needless to emphasize,
this argument is advanced because, PW2 did not support the
prosecution case and denied to have carried Ex.P1 report to Sangam
Police Station. However, we find no much force in this argument. It
is true PW2 did not support prosecution case. Though he admitted
that on the date of incident he was present in the village, he denied
witnessing the accused attacking the deceased and causing injuries.
However, he admitted that he saw Bhaskaraiah lying near Badi Baavi
centre and a Auto came there. He further stated that the accused were
not present at the place of incident and he did not accompany PW1 to
the DSR Government Hospital, Nellore in the Auto. He further stated
that PW1 did not send Ex.P1 report through him to Sangam Police
Station. On the request of the learned Additional Public Prosecutor,
this witness was declared hostile and permission was accorded for
cross examination. In the cross-examination, he stated that he is an
accused in a criminal case pending on the file of the AJMFC, Kovvur,
in which A1 is the de facto complainant. Though this witness denied
having witnessed the incident, however, other prosecution witnesses
i.e., PW1, PW3, PW4, PW5, PW6, PW7 clearly deposed about his
presence and witnessing the incident and also his accompanying PW1
to the Government Hospital in the auto. Further, PW17 clearly
deposed that on 24.08.2006 at 00.30 hours, Ex.P1 report was brought
to the police station by PW2, basing on which he registered Ex.P20-
FIR. In the light of the aforesaid overwhelming evidence, the denial
made by PW2 cannot be considered. As rightly argued by learned
Additional Public Prosecutor, PW2 might turned hostile because
criminal case filed by A1 against him must be hanging over his head
as a sword of Damocles. Thus, the fact remains that Ex.P1 report was
sent to the police station by PW1 through PW2 and basing on it, FIR
was registered by PW17.
21. The next argument is that there was inexplicable delay in
forwarding the original report and FIR to the Magistrate which
creates doubt whether FIR was registered at the time claimed. It is
true that FIR was lodged at 00:30 hours on 24.08.2006 but it reached
the Additional JMFC at 09:50 AM on 24.08.2006. Obviously there is
a delay of about nine hours in dispatching the FIR. However, such
delay is not fatal in every case particularly when the genesis of FIR at
the given time is a believable fact. In the instant case it is already
discussed supra that FIR was promptly registered. In that view, delay
if any in its dispatch to the Magistrate cannot be given much
importance. In Anjan Dasgupta's (7 supra) case cited by learned
Additional Public Prosecutor, the murder of the deceased took place
on 16.06.2000 at about 04:50 PM and report was lodged with
jurisdictional Police Station at about 07:30 - 08:00 PM on that day.
The FIR was dispatched from the Police Station to the jurisdictional
Magistrate on 22.06.2000. Setting aside the arguments of appellants
that the delayed dispatch of FIR to the Magistrate was indicative of
antedated registration of FIR, the Hon'ble Apex Court held thus:
"24. The present is the case, where recording of the FIR on 16-6-
2000 itself has been proved, accepted by the trial court also, thus
mere dispatch of the FIR on 22-6-2000 from the police station to the
Magistrates' Court has no bearing on the basis of which any adverse
presumption can be drawn. From the above discussion, we are of
the clear view that the FIR was genuine FIR and the trial court
committed an error in drawing adverse inference against the
prosecution and refusing to attach value to the FIR.
25. The conclusion of the learned Sessions Judge that the FIR was
manipulated is thus found to be erroneous. The FIR has been proved
by the evidence as noted above. Thus, one of the basis of the
decision of the Sessions Judge for discarding the prosecution case is
knocked out."
In the instance case also as we held that the complaint was
lodged without delay and FIR was promptly registered, the delay in
dispatch of FIR to the Magistrate is of no consequence. Consequently,
the decisions in Bheemagonda (4 supra) and Nakka Srinivasa Rao
(5 supra) cited by the appellants will not improve their case.
22. Thus, on a conspectus of facts, evidence and law, we do not
find any merits in the arguments of the appellants / accused. The trial
Court having rightly considered the evidence on record, convicted the
accused, which, in our view is sustainable under law.
23. Accordingly, this Criminal Appeal is dismissed by confirming
the conviction and sentence passed by the trial Court in Sessions Case
No.78/2010.
_________________________
U.DURGA PRASAD RAO, J
___________________________
G.RAMAKRISHNA PRASAD, J
Date:06.09.2022
MVA / KRK
