Kenwar Rajender Singh, Hyd And 4 ... vs State Of Ap., Rep. Pp. Hyd.,
2023 Latest Caselaw 2935 Tel

           THE HON'BLE SRI JUSTICE K.LAKSHMAN
                           AND
            THE HON'BLE SMT JUSTICE K. SUJANA


      CRIMINAL APPEAL NOs.747, 751 AND 805 OF 2013


COMMON JUDGMENT: (per Hon'ble Smt Justice K.Sujana)


      These   appeals   are   filed   against   the   judgment   dated

11.09.2013 in S.C.No.314 of 2011 on the file of Metropolitan

Sessions Judge, Hyderabad, wherein six accused are charged for

the offences under Sections 307, 302 r/w.Section 149 of the

Indian Penal Code (for short 'the IPC'). The trial Court convicted

Accused Nos.1 to 6 for the offence punishable under Section 324

r/w.Section 149 of the IPC and sentenced to undergo rigorous

imprisonment for a period of six months each and also to pay a

fine of Rs.2000/- each and in default of payment of fine, to suffer

simple imprisonment for a period of two months each, whereas

acquitted for the offences under Section 307 and 302 r/w.Section

149 of the IPC.


2.    Out of these appeals, Crl.A.No.805 of 2013 is filed by the

defacto complainant against the acquittal of the accused for the

offences punishable under Sections 302 and 307 r/w.Section 149

of the IPC.   Crl.A.No.747 of 2013 is filed by the accused No.3

against the conviction and sentence imposed for the offence under
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Section 324 r/w.Section 149 of the IPC and Crl.A.No.751 of 2013

is filed by the Accused Nos.1, 2, 4 to 6 against the conviction and

sentence imposed for the offence under Section 324 r/w.Section

149 of the IPC.


3.    As all the appeals arise out of the same judgment in

S.C.No.314 of 2011, we dispose of the same, by a common

judgment.


4.    The facts of the case are that on the intervening night of

7/8.04.2010, Pw.1 gave a written complaint to the police stating

that while he along with his locality people i.e., Keesara Ashok and

Yellam were chitchatting near his residence, some known persons

namely Rajender Singh with his younger brothers Dharam Singh,

Sateesh Singh and his sons Santosh Singh, Sateesh Singh and

Sanjay Singh all of a sudden attacked them with iron rods and

beat them severely without any reason, due to which he received

injuries on his right eye, nose and back, whereas, Ashok received

injuries on his right knee and Yellam also received injuries.

Immediately, the Humayunnagar Police shifted the injured to

OGH, Hyderabad.


5.    Basing on the said complaint, the S.I. of Police, Golconda

P.S., registered a case in Cr.No.97 of 2010 under Section 324

r/w.Section 34 of the IPC and handed over the case to Lw.17-S.I of
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Police, Golconda P.S. Lw.17 rushed to the scene of offence,

secured two panchas, conducted scene of offence observation

panchanama and seized four cement road cutting debris pieces

from the spot and prepared rough sketch. He also examined Pw.1

and other injured and recorded their statements.


6.      During     the   course   of       investigation,   Lw.17        received

information that Yellam succumbed to the injuries and thereupon,

he altered the section of law from Section 324 r/w.section 34 of

the IPC to Section 307, 302 r/w. Section 34 of the IPC and handed

over investigation to Lw.18-Inspector of Police. Lw.18 visited the

scene of offence, examined and recorded the statements of

witnesses.       On 09.04.2010, he apprehended A.1, A.3 to A.6,

secured the presence of panchas, recorded the confessional

statement of A.1 and seized one iron pipe from the possession of

A.1 and also seized one rod measuring 3 feet from the possession

of A.3, effected their arrest and produced before the Court. Later

he sent the dead body to post mortem examination and after

completion of investigation, he filed charge sheet for the offence

under Section 307 and 302 r/w.Section 34 of the IPC.


7.      To prove the case, the prosecution examined Pws.1 to 13 out

of 18 listed witnesses and got marked Exs.P.1 to P.18 and M.Os.1

to 3.   Basing on the evidence on record and after hearing both
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sides, the trial Court convicted the accused for the offence under

Section 324 r/w.Section 149 of the IPC. Against the said sentence,

these appeals are filed.


8.    Crl.A.No.805 of 2013 is filed by the defacto complainant-

Narsing Rao, stating that the important ingredients to attract

Section 307 of the IPC is the guilty intention or knowledge with

which all was done irrespective of its results. In the present case

from the evidence of Pws.1 to 3 and 8, motive is established for

commission of offence and the accused with an intention to cause

harm to take revenge have attacked the complainant. Inspite of

that the trial Court ignored the said aspects and acquitted the

accused for the offence under Section 307 of the IPC. He further

contended that the evidence of victim Pw.1 received injuries which

are contusion over right eye, contusion over right hand, abrasion

on left backside and contusion over right backside that apart

Ex.P.8 and P.9 clearly establishes that the injuries received by the

complainant and the evidence of Pw.5 clearly discloses that he

conducted postmortem examination on the deceased Yellam who

received nine injuries which are likely to be caused by blunt

weapon such as stones, rods and sticks. Since the rods are seized

by the police, inspite of such material on record, the trial Court

acquitted the accused, as the trial Court failed to appreciate the
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evidence properly.     Therefore, prayed the Court to set aside the

judgment of trial Court and convict the accused as per law in the

interest of justice.


9.    Crl.A.No.751 of 2013 is filed by the appellant/accused

Nos.1, 2, 4 to 6 contending that the trial Court grossly failed to

appreciate the fact that the prosecution has failed to substantiate

the charges against the appellants beyond reasonable doubt and

wrongly convicted them and prayed the Court to acquit the

appellant by setting aside the conviction.


10.   Crl.A.No.747 of 2013 is filed by the appellant/accused No.3.

The contention of the appellant is that the trial Court without

proper appreciation of facts and law, has convicted the appellant

for the offence under Section 324 r/w.Section 149 of the IPC and

sentenced him to undergo imprisonment for a period of six months

and also to pay a fine of Rs.2000/-.   The trial Court ought to have

considered that the name of this appellant is not mentioned in the

written complaint lodged by Pw.1 who is an alleged eye witness

and one of the injured in the above case and prayed the Court to

acquit the appellant by setting aside the conviction.


11.   Further contention of the appellants in Crl.A.No.747 and

751 of 2013 that Pw.6 who was projected as a panch witness did

not support seizure of material objects from the scene of offence,
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which fortifies the contention of the appellants that deceased and

other injured fell down from a scooter and sustained injuries, but

not due to rods or material objects as claimed by the prosecution.

They also contended that there is delay in lodging FIR which is not

explained by the prosecution.        Therefore, the conviction was

erroneous and prayed the Court to set aside the judgment of the

trial Court by acquitting the appellants/accused Nos.1 to 6.


12.   Heard Sri C.Sharan Reddy, learned counsel appearing for

the appellant in Crl.A.No.751 of 2013, Sri K.Giridhar Raju, learned

counsel representing Sri H.Sudhakara Rao, learned counsel

appearing for the appellants in Crl.A.No.747 of 2013, Sri Dida

Vijaya Kumar, learned counsel appearing for the appellant/defacto

complainant in Crl.A.No.805 of 2013 and Sri T.V.Ramana Rao,

learned Additional Public Prosecutor.


13.   Learned counsel for the appellant in Crl.A.No.805 of 2013

contends that this appeal is filed against the acquittal of the

accused for the offences under Sections 302 and 307 of the IPC

and without proper appreciation of evidence, the trial Court

wrongly acquitted the accused for the said offences.          Therefore,

prayed the Court to convict the accused as per law.


14.   Learned counsel for the appellants in Crl.A.No.747 and 751

of 2013 would submit that when evidence on record falsifies the
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accusation of the offences under Sections 302 and 307 of the IPC,

same evidence is not sufficient to prove the case against them. As

such, prayed the Court to allow the appeals by acquitting the

appellants.


15.   Now, the points for consideration are :


1.

Whether the death of the deceased Yellam is a homicidal ?

2. Whether, the prosecution proved the guilt of the accused Nos.1 to 6 for the offences under Section 302, 307 and 324 r/w.Section 149 of the IPC ?

[

3. Whether the judgment of the trial Court needs any interference ?

POINT NO.1 :

16. To prove the prosecution case, Pws.1 to 13 were examined.

Pw.1 is the complainant and injured witness who lodged Ex.P.1

complaint. Pw.2 is the injured eye witness to the incident. Pw.3 is

another eye witness to the incident. Pw.4 is panch for inquest

panchanama, Pw.5 is the medical officer who conducted autopsy

over the dead body of the deceased Yellam. Pw.6 is panch for

scene of offence panchanama, but not supported the case of

prosecution, Pw.7 is the doctor who treated the injured, Pw.8 is

the mother of the deceased Yellam, Pw.9 panch for confession

have not supported the case of prosecution. Pw.10 who is also a KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

panch for confession also not supported the case of the

prosecution. Pw.11 the Inspector of police, P.S., Golconda who

issued FIR and handed over the C.D, to Mohd. Yousuf, Pw.12 is

the investigating officer who conducted investigation in this case

and Pw.13 is the second investigating officer who filed the charge

sheet.

17. Pw.1 is a private employee and neighbour of the deceased

Yellam. Pws.2 to 4 are having houses and huts in Ramdevguda.

He deposed that for the last four years, all the accused are

quarrelling with them in connection with the land on which they

raised their huts. Therefore, a case was registered against

Accused Nos.1, 4 and 5 on his complaint as they abused them in

their caste name and also beat them. Again in the year 2009

another case was registered against the accused Nos.1, 4 and 5 on

his complaint as they beat them. On 07.04.2010 at 7.30 p.m,

when Pw.1, the deceased Yellam and Keesari Ashok were talking

infront of the house of Yellam, the accused Nos.1 to 6 armed with

iron rods attacked them. Pw.1 sustained injuries below right eye,

nose and back, Ashok sustained injury on his right knee and

Yellam sustained injuries on his abdomen. Lws.4, 5 and 7 have

witnessed the incident. After the incident when all of them wanted

to go Osmania Hospital, on the way they met the Assistant KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

Commissioner of Police, Humayun Nagar, informed him about the

incident and requested to send them to hospital. The Assistant

Commissioner of Police sent them to the hospital for treatment.

The doctors treated them as outpatients and advised to wait in the

hospital for observation. Accordingly, they were at hospital till

12.30 mid night thereafter went to the police station and gave

complaint.

18. Pw.2 also deposed on the same lines as that of Pw.1 stating

that they raised huts about 40 or 50 years back. His father

purchased 100 yards from accused No.1, but there is no

documentary proof of purchasing the said land. In the year 2008,

the accused tried to evict them alleging that the land belongs to

them. As such they gave a complaint in Golconda police station

against accused No.1. On 07.04.2010 at about 7.30 p.m., when

Pw.2 and Pw.1 were talking near the house of Yellam regarding

drinking water, suddenly, accused Nos.1 to 6 came and attacked

them, beat them with stones and iron rods. He received injury in

between knee to thigh and fell down. He also deposed that Pw.1

and Yellam also received injuries.

19. Pw.3 deposed that at the time of incident he was infront of

his house and witnessed the incident.

KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

20. The evidence of Pws.1 to 4 shows that the incident occurred

on 07.04.2010 and accused Nos.1 to 6 attacked the deceased and

Pws.1 and 2.

21. According to Pw.5 who conducted autopsy over the dead

body of the deceased, the deceased died on 09.04.2010 at 1.20

a.m., in Osmania General Hospital due to the septic peritonitis

and he issued Ex.P.3 postmortem report. According to him the

deceased received nine antemortem injuries which are an abrasion

1x ½ cm on right side temple 3 cm lateral to the right eyebrow.

Reddish brown scab present, an abrasion 1x ½ cm on sterna end

of right color bone lateral to suprasternal notch reddish brown

scab present, an abrasion 6x2 cm on left side chest 2 cm below

and medial to the left nipple reddish brown scab present, a

sutured wound 3 cm with 2 sutures and peritoneal drain tube on

right side abdomen 14 cm lateral to the umbilicus, a sutured

wound 3 cm with 2 sutures on left side abdomen 14 cm lateral to

the left side Umbilicus, an abrasion 4 x 2 cm on back of right

elbow joint. Reddish brown in colour, an abrasion 1.5 cm x 0.5

cm on inner aspect of right leg 8 cm below the knee joint, an

abrasion 1 x ½ cm over the front of middle 1/3 of skin of right leg

15 cm below the knee joint, an intraperitonial drain tube of 26 cm

length from the injury No.4 on right side flank passing subhepatic KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

area of liver ends at Inter lobar fissure both right and left lobes of

liver after abdominal and peritonial membrance reflexion and

about 200 ml of purulent discharge is present in the peritoneal

cavity. Brain congested.

22. He further opined that the said injuries are not sufficient to

cause death in the ordinary course. He also opined that the said

injuries can be caused when a person falls on hard rough surface

from a running vehicle.

23. Pw.7 is a medical officer who examined Pws.1 and 2. He

examined Pw.1 and found a contusion over right eye, contusion

over right hand, abrasion on left back side and contusion over

right back side and opined that all the injuries are simple in

nature. He issued Ex.P.8 Medical certificate in respect of Pw.1.

He also deposed that he examined Pw.2 and issued Ex.P.9 Medical

certificate in respect of Pw.2 stating that Pw.2 did not receive any

external or internal injuries, but he complained of pain over right

knee joint which is a simple injury.

24. Basing on the evidence of medical officer, the trial Court

came to the conclusion that the deceased did not die of the

injuries received by him in the incident, as the injuries are simple

in nature, they are not sufficient in the ordinary course to cause

death. Therefore, the trial Court opined that the offence under KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

Section 302 r/w. Section 149 and Section 307 of the IPC is not

proved by the prosecution, whereas the appellant in Crl.A.No.805

of 2013 contended that the evidence is sufficient to prove the

offences under Sections 307 and 302 of the IPC. The injury

certificate issued by Pws.5 and 7 shows that the injuries are

simple in nature. Further Pw.8 mother of deceased Yellam is also

projected as eye witness. But her evidence shows that Pws.1 and

2 witnessed the incident along with several others when accused

ran away. She also deposed that doctors advised his son Yellam to

be treated as inpatient but her son refused on the pretext that he

did not inform his family members and on the next day morning

when her son got stomach pain, they admitted him in Osmania

General Hospital and he died while undergoing treatment.

Therefore, the evidence of Pw.8 is also no way helpful to the

prosecution in this case and there is no force in the contention of

the appellant/defacto complainant that the A.1 to A.6 committed

offences under Sections 307 and 302 of the IPC. The prosecution

has to prove that the death of the deceased is a homicidal death

and the accused are responsible for the said death. In the present

case, there is no basic evidence to prove that the deceased died

due to the injuries received by him in the alleged incident.

Therefore, it cannot be said that it is a homicidal death and the KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

accused are responsible for it. Accordingly, Point No.1 is

answered.

POINT NOs.2 & 3 :

25. Now, the contention raised by the appellants/accused Nos.1

to 6 is that when the evidence on record is not supporting the case

of prosecution to prove the offence under Section 307 and Section

302 of the IPC, their evidence cannot be taken for other offences.

Learned counsel for the appellant/accused placed reliance on the

judgment in Prem Singh Vs State of Punjab 1, wherein, in para 2

the Hon'ble Supreme Court held as under :

".... The evidence of both these witnesses in regard to the participation of the four other accused was rejected both by the Sessions Court as well as by the High Court as unreliable, as it was falsified by the medical evidence. These two witnesses had stated that spear injuries were caused to Satnam Singh and Gurnam Singh by the four other accused, but the medical evidence revealed that there were no such injuries. Now, if the evidence of these two witnesses was disbelieved by both the lower courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned. The conviction of the appellant is founded solely on the evidence of these two witnesses whose testimony cannot be said to inspire confidence in the mind of the Court....."

(1976) 1 Supreme Court Cases 805 KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

26. In the present case, the trial Court acquitted the accused for

the offences under Sections 302 and 307 of the IPC, whereas

convicted for the offence under Section 324 r/w.Section 149 of

the IPC, not acquitted any of the accused, proved offence is minor

offence than the charged offence. Therefore, the facts in the above

judgment are not similar to this case.

27. Now, it is to be seen whether the evidence on record is

sufficient to convict the accused for the offence under Section 324

r/w.Section 149 of the IPC.

28. Conviction cannot be given basing on the assumptions and

presumptions. Prosecution has to prove the guilt of the accused

beyond reasonable doubt. In this case Pw.1 gave complaint to the

Golconda P.S., under Ex.P.1 stating that A.1 to A.6 attacked the

deceased Yellam, himself and Pw.2 due to which all of them

received severe injuries. According to Pws.1 and 2 after the

incident they approached Assistant Commissioner,

Humayunnagar and he sent them to the hospital escorted by the

Humayunnagar police. Admittedly, Pw.11 who received complaint

and issued FIR did not receive any information from

Humayunnagar Police or from the hospital. The hospital

authorities have to give information to the police as it is a medico KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

legal case. Ex.P.1 discloses that A.1 to A.6 attacked with rods but

evidence of Pw.7 and Exs.P.8 and P.9 shows only simple injuries.

Further Ex.P.9 only shows pain, but there are no injuries.

29. Though prosecution case is that they conducted scene of

offence panchanama in the presence of Pw.9, but he has not

supported the prosecution case and admittedly deceased Yellam

house was not shown in the scene of offence. Pw.10 who is the

panch for confession cum seizure panchanama not supported the

prosecution case and recovery of M.O.1 is also not proved.

30. The prosecution has to prove the case beyond reasonable

doubt. In this case there is no corroboration of the evidence of

Pws.1, 2 and the medical reports. Though there are many eye

witnesses, no independent eye witness was examined by the

prosecution. As seen from the record there are civil disputes

between the accused and Pws.1 and 2. Further no motive is

attributed to the accused in the complaint to commit those

offences. Thus, prosecution failed to prove the injuries as stated

by Pws.1 and 2 with the medical evidence and there is no

independent witness to prove the case. Further, no witness

deposed about the overtacts of each accused.

31. The trial Court considering the evidence of Pws.1, 2, 3 and 8

as trustworthy erroneously convicted the accused for the offence KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

under Section 324 r/w.section 149 of the IPC, whereas there is no

independent evidence on record, apart from that the evidence of

Pws.1 and 2 not corroborating with the evidence of Pw.7 doctor as

such the conviction is not proper, whereas, the trial Court rightly

acquitted the accused for the offence under Section 302 and 307

of the IPC as the evidence is not sufficient to prove the same. As

such the conviction under Section 324 r/w.Section 149 of the IPC

is hereby set aside. Accordingly, point Nos.2 and 3 are answered.

32. During pendency of the appeals, learned counsel for the 1st

respondent in Crl.A.No.805 of 2013 filed a memo stating that the

1st respondent in the said appeal and the 1st appellant in

Crl.A.No.751 of 2013 i.e, K.Rajender Singh died on 29.06.2021 at

Mahaveer Hospital and research Centre and death certificate is

enclosed to the memo to that effect. Hence the appeals against

said K.Rajender Singh is dismissed as abated.

33. IN THE RESULT, Crl.A.No.805 of 2013 is dismissed and

Crl.A.Nos.747 of 2013 and 751 of 2013 are allowed and the

appellants/accused in both the appeals are found not guilty for

the offence punishable under Section 324 r/w.Section 149 of the

IPC. Hence they are acquitted of the said offence. The judgment

dated 11.09.2013 in S.C.No.314 of 2011 on the file of Metropolitan

Sessions Judge, Hyderabad is hereby set-aside. The bail bonds of KL,J &SKS,J Crl.A.Nos.747, 751 & 805_ 2013

the appellants/accused shall stand cancelled. The

appellants/accused shall be set at liberty forthwith, if they are not

required in any other case or crime.

Miscellaneous applications, if any, pending in these Criminal

Appeals shall stand closed.

_________________ K.LAKSHMAN, J

______________ K. SUJANA, J Date :06.10.2023 Rds