Raja Reddy & Anr Vs. Public Prosecutor, High Court of Andhra Pradesh  Insc
604 (21 September 2006)
Mathur & Altamas Kabir Altamas Kabir, J.
appellants herein along with one Khambham Pai Reddy were prosecuted for causing
the death of Khambam Venkatramana Reddy. While the appellant No.1 was
prosecuted for the offence punishable under Section 302 IPC, the two other
accused were prosecuted under Section 302 IPC read with Section 34 IPC, in the
alternative under Section 302 IPC read with Section 114 IPC and under Section
order to prove that the death of Khambam Vankatramana Reddy was homicidal, the
prosecution relied upon the evidence of PWs1, 2, 3, 8 and 11. PW-1 is the widow
of the deceased. PW-2 is the father of the deceased and PW-3 is the doctor who
conducted autopsy on the body of Khambam Venkatramana Reddy. PW-8 is one of the
inquest witnesses and PW-11 is a Sub Inspector of police who conducted the
inquest and deposed that he had found an injury near the left eye of the
deceased as also on the left thumb.
case of the prosecution is that the victim and the accused persons were related
to each other. The 1st accused is the son of accused Nos. 2and 3 and the 3rd
accused is the husband of the second accused. The 3rd accused and PW-2, Khambam
Gangi Reddy, the father of the deceased, were brothers. It was the case of the
prosecution that the relations between the accused and the family of the
deceased were strained and there was subsisting hostility between the two
to the prosecution, on 9th
May, 1994, the
deceased harvested his paddy crop and placed it in a heap on Thellabanda near Koraparthivaripalle
bus stop and on that night the deceased and his wife, PW-1 slept near the heap
of paddy to keep a watch over the same. In the early hours of 10th May, 1994, the accused were said to be
proceeding towards Thellabanda and one R. Venkataramana who was watering his
fields is alleged to have focused his torch light on them. PW-1 is said to have
woken up on hearing the noise of the accused persons proceeding towards Thellabanda
and in the beam of her torch light she claims to have seen and recognized the
accused persons. According to her, the accused Nos. 2 and 3 caught hold of her
hands and gagged her by stuffing a cloth in her mouth to prevent her from
crying out. At the same time, the 3rd accused exhorted the 1st accused to kill
the deceased who was still in a sound sleep.
such exhortation, the 1st accused is said to have picked up a big stone and had
thrown the same on the head of the deceased, as a result whereof, the deceased
sustained fatal injuries on his head and died instantaneously.
committed the crime, the accused Nos. 1 to 3 ran away and PW-1 raised an alarm.
On hearing the alarm, one Srivargani Guravaiah, PW-7, who was also said to be
watching his paddy near the scene of the offence, focused his torch light and
saw the accused Nos. 1 to 3 running away.
then rushed to the spot and found the deceased with head injury. PW-1 is said
to have narrated the incident to him and then she went to the village and
informed her family members about the said incident.
On 10th May, 1994, at about 10.00 A.M., PW-1 lodged a complaint which was registered as Crime No.
9/1994 under Section 302 read with Section 34 IPC. On the same day, PW- 11, a
Sub Inspector of police, conducted inquest in respect of the dead body in the
presence of PW-8 and thereafter the body was sent to the Government Hospital, Piler, for conducting post mortem. The doctor who examined
the dead body was of the opinion that the deceased had died on account of the
completion of the investigation, the Investigating Officer filed chargesheet
against the three accused persons, who denied their involvement in the incident
and claimed that they had been falsely implicated on account of the subsisting
rivalry between the two groups. It was also the defence of the accused that the
story as narrated by PW-1 should not be accepted for the reason that the
accused No.1 had suffered from polio and having been crippled by the said
disease, he was unable to walk about for long without the assistance of an
escort. In fact, a certificate issued by one Dr. M. Venkatadri, Civil Assistant
Surgeon, Gandhi Hospital, Secunderabad, on 5th January, 1994, which was exhibited on behalf of
the defence, disclosed that the accused appellant No.1 herein is permanently
disabled. It was contended that on account of his physical disability, it was
impossible for the appellant No.1 to lift a stone weighing about 25 to 30 Kgs.
and to throw it down on the head of the deceased.
the evidence adduced on behalf of the defence, the learned Sessions Judge found
that the appellant No.2 was 59 years old and the 3rd accused was 68 years at
the relevant time. The learned Sessions Judge upon appraisal of the evidence
found the story of the prosecution to be improbable, basing his decision on the
evidence that the appellant No.1 herein had been crippled by polio and it was
physically impossible for him to lift a heavy stone weighing about 25 to 30 Kgs.
in the manner suggested by the prosecution. The learned Sessions Judge also
observed that it was improbable for two old people to overpower a young woman,
namely, PW-1, and immobilize her so that the appellant No.1 could pick up and
throw the heavy stone at the head of the deceased.
basis of the above, the learned Sessions Judge acquitted all the three accused
persons of the charges framed against them.
appeal preferred by the State of Andhra Pradesh, the High Court disagreed with the findings of the learned
Sessions Judge and observed that there was no positive evidence on record to
show that the appellant No.1 is a crippled man. The High Court went on further
to observe that even if the defence story that the appellant No.1 had suffered
a polio attack was accepted, such attack was always to the legs and not to the
hands and on such supposition, the High Court came to a finding that the
appellant No.1 was strong enough to lift the stone weighing about 25 to 30 Kgs.
and throw it at the head of the deceased. The High Court also held that the
evidence of PW-1 inspired confidence and there was no reason to disbelieve the
same. On such finding, the High Court held the accused Nos. 1 to 3 to be
responsible for causing the death of the deceased.
the High Court was of the view that the offence committed by the accused
persons, though homicide, did not amount to murder and had possibly been
committed with the intention of causing grievous hurt to the deceased. The High
Court accordingly held the accused persons to be guilty of an offence
punishable under Section 326 IPC read with Section 34 IPC and convicted the
accused Nos. 1 & 2 and sentenced each of them to suffer R.I. for seven
years and to pay a fine of Rs. 1,000/-. In default, to suffer R.I. for one
month more. As the accused No. 3 had died during the pendency of the trial, the
case against him stood abated.
appeal is directed against the aforesaid judgment of conviction and sentence
passed by the High Court of Andhra Pradesh.
the case as made out by the prosecution that the accused No.1 had become
crippled on account of an attack of polio and was physically unable to lift a
stone weighing 25 to 30 Kg. for the purpose of commission of the crime was
noticed by both the courts below, both the said courts appear to have
overlooked the nature of the injuries which were found on the body of the
deceased by the doctor who had conducted the post mortem examination on the
body of the deceased. Since, we will have occasion to refer to the injuries
later, the same are reproduced hereinbelow:-
over the left cheek 5 x 6 cm. size
the left little finger 2 x 3 cm. size On dissection of head and neck:-
Fracture of the
maxillary bone 2 3 cm. size on left side which corresponds to external injury
Fracture of the
left parietal bone present 3 4 cm. size
present over the left parietal region of the brain about 3 x 4 cm. size
fluid present in the cranium about 500 ml.
of the neck are normal. Hyoid bone intact. Chest: Ribs are norml. Heart and
lungs normal. Abdomen: Stomach contains undigested food particles mixed with
vegetables. Instetines distended with gas Liver, Spleen, and both kidneys are
normal. Bladder empty. Scrotum and testicles are normal."
main thrust of the submissions made on behalf of the appellants was directed to
the attack of polio suffered by the appellant No.1 which had left him crippled
and made it impossible for him to lift a heavy object such as a stone weighing
25 to 30 Kgs. with which the offence is said to have been committed. The
further contention of the appellants was that the High Court had failed to
appreciate that in her evidence PW-1 had admitted that she had not seen any
blood oozing from the ear, nose or mouth of the deceased after the commission
of the offence. Certain material inconsistencies in the statements of PW-7 as
to whether he had actually noticed the accused in the focus of his torch light
were also pointed out. It was pointed that while he had stated in his
deposition that he had woken up upon hearing the shouting and thereafter he
switched on his torch light with the aid of which he noticed the accused
persons running away from the scene, in his statement made under Section 161 Cr.P.C.,
he had mentioned that he was engaged in agricultural operations at the time of
submissions made on behalf of the State supported the reasoning of the High
Court and it was submitted that although there was only one eye-witness, who
was the wife of the deceased, her evidence remained unshaken and there was no
reason to disbelieve her evidence as to the manner in which the incident had
occurred. It was also pointed out that the injuries suffered by the deceased
were quite capable of being inflicted by a heavy object, such as a stone, being
thrown at the head of the victim. In fact, the stand of the State was that
since the injuries were corroborated by the evidence of PW-1, the High Court
had rightly found the accused to be guilty of having caused the death of Khambam
Venkatramana Reddy though without having the intention of killing him. There
was, therefore, no ground for interference with the judgment of the High Court
indicated hereinbefore, both the courts below appear to have overlooked the
nature of the injuries suffered by the deceased and to co-relate the same with
the prosecution story.
examination of the injuries suffered by the deceased and the evidence of PW-1,
it will be seen that the injuries do not match the ocular evidence. The
injuries suffered by the deceased, which are extracted hereinbefore, do not
indicate any depressed injury which would have to be present if a heavy object
such as a stone weighing about 25 to 30 Kgs. were to be dropped on a person's
head. In his deposition, PW-3, who had conducted the post mortem examination,
stated that in the instant case, there was profuse bleeding internally but that
he did not find any profuse bleeding in the external injury and that in the
instant case, there was possibility of blood oozing from the nose and the mouth
if attacked with an object such as Material Object No.1. However, while
examining the deceased, he did not observe oozing of blood either from the mouth
or nose. In Cross-examination, PW-3 has also observed that in case a heavy
object touches a particular part of the body, there will be depressed wound or
injury. The injuries as noticed by him, however, does not disclose any injury
of such nature, which is inconsistent with the theory of the offence having
been committed in the manner projected by the prosecution.
his "Medical Jurisprudence and Toxicology", while dealing with head
injuries, has described various types of fractures. He has described "depressed
fracture" in the following words:- "Depressed Fracture: This is also
known as signature fracture or fractures a la signature as their pattern at
times resembles the weapon which caused it. Heavy weapons with a small striking
surface, eg, axe, hammer, stone etc, cause localized depressed fracture."
The present case is an example of contradiction between the ocular evidence and
the medical evidence, where the medical evidence is not borne out by the ocular
evidence. In such a situation it was suggested on behalf of the appellants on
the authority of a decision of this Court in the case of State of M.P. vs. Dharkole
alias Govind Singh and Ors., reported in (2004) 13 SCC 308, where the medical
evidence was at variance with the ocular evidence, the testimony of the
eye-witness should be decided independently and if found trustworthy, the same
could not be discarded merely because it is at variance with medical opinion.
While there can be no difference of opinion with the principle explained in the
aforesaid decision, the application thereof will depend on whether the story as
made out by the prosecution is trustworthy and can be related to the injuries
suffered by the victim in the manner as sought to be projected. If the ocular
testimony is such that it is not possible to relate the injuries with the
circumstances in which they were said to have been inflicted, the court has the
discretion not to accept the ocular evidence. The principle enunciated in Dharkole's
case (supra) may be applied in an appropriate case, but each case has to be
determined having regard to its own set of facts.
instant case, in the absence of any depressed injury and in the absence of any
bleeding from the nose and ears of the deceased, we are unable to give credence
to the evidence of PW-1 as to the manner in which the incident is said to have
from the above, the High Court has also gone wrong in observing that there is
no positive evidence on record to show that the accused No.1 is crippled. The
High Court has proceeded on the supposition that since a polio attack is always
to the legs and not to the hands, a person who had suffered from a polio
attack, was capable of lifting a stone weighing about 25 to 30 Kgs. with his
hands. The learned Sessions Judge has, in fact, referred to a certificate
issued by Dr. M. Venkatadri, Civil Assistant Surgeon, Gandhi Hospital, Secunderabad,
dated 5th January, 1994, to the effect that the right leg of the appellant No.1
had been affected with polio and he was unable to travel without the assistance
of an escort.
in respect of the disability of the appellant No.1 showing him to have been
attacked by polio had also been filed. For the appellant No. 1 to have lifted a
stone weighing 25 to 30 kgs in his physical condition was highly improbable.
two circumstances taken up together creates sufficient doubt regarding the
prosecution case and as to the manner in which the victim is said to have been
result, the appeal succeeds and is allowed.
and sentence of the appellants herein are set aside. The appellants are on
bail. Let them be discharged from their bail bonds and be set at liberty