Maddilety & Ors. Vs. State of A.P.  INSC 635 (16 August 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 25
of 2007 Chakali Maddilety & Ors. ...Appellants Versus State of Andhra
This appeal has been preferred against the judgment and order of
the High Court of Andhra Pradesh at Hyderabad, dated 9.3.2004, by which it has
dismissed Criminal Appeal No. 289 of 2002, affirming the judgment and order
dated 12.2.2002 passed by the Sessions Court, Kurnool in Sessions Case No.
830/1999, convicting the appellants under Sections 302 and 148 of the Indian
Penal Code, 1860 (hereinafter called as "IPC") and sentencing them to
undergo life imprisonment and one year R.I. respectively.
Facts and circumstances giving rise to this appeal are that
accused (A1 to A7) and Harijana Ayyanna (hereinafter called as
"deceased") were residents of village G. Singavaram.
8.2.1999 at about 7.30 PM, the deceased along with his wife Harijana Ayyamma
(PW.2) and son, Harijana Ramakrishna (PW.1) went to the clinic of Dr. Ramana
for treatment of Harijana Ayyamma (PW.2) and while they were coming back and
reached near the house of Anjaneya Goud at about 8.00 p.m., accused (A1 to A7)
suddenly appeared on the spot. A1, A3, A5, A6 and A7 were armed with daggers
and A2 was armed with a stick. They surrounded the deceased and his son
Harijana Ramakrishna (PW.1). A1 abused the deceased and stabbed on his back
with a dagger causing injuries and then A2 to A7 carried the deceased towards
the mosque and threw him on the road near it. A1, A3, A5, A6 and A7 stabbed the
deceased on his chest, stomach and back with daggers. A2 beat the deceased with
a stick and A4 caused injury on his head with a stone. Harijana Ramakrishna
(PW.1) and Harijana Ayyamma (PW.2) made hue and cry as a result of which
Harijana Sekhar (PW.3), P. Muniswamy (PW.4) and A.
(PW.5) reached the place of occurrence and all the accused fled away from
there. PWs. 1 to 5 took the deceased in a vehicle to the Government Hospital,
Kurnool, however, he succumbed to the injuries at about 9.30 p.m. Harijana
Ramakrishna (PW.1), son of the deceased filed the F.I.R. (Ext.
Kurnool Taluk Police station and Crime No.16 of 1999 was registered. T.Naganna
(PW.9), the Investigating Officer drew up the panchanama of the scene of
offence and held an inquest on the dead body at the hospital in presence of
witnesses Molakapogu Daveedu (PW.6) and Molakapogu Harijana Pakkiranna (PW.7)
and the dead body was sent for post mortem. In the post mortem report, Dr. L.C.
Obulesu (PW.10) found 13 ante-mortem injuries on the body of the deceased.
After completing the investigation, T. Naganna (PW.9) filed the charge sheet
against the accused persons and they were put to trial.
The learned Sessions Judge, Kurnool, after conclusion of the
trial, found A1, A3, A5, A6 and A7 guilty of offences punishable under Sections
148 and 302 IPC. They were sentenced to life imprisonment and a fine of
Rs.1,000/- each 3 for an offence punishable under Section 302 IPC and one year
RI and fine of Rs.500/- each for an offence punishable under Section 148 IPC.
However, both the sentences were directed to run concurrently. The Court
acquitted A2 and A4 of all the charges.
Being aggrieved, the appellants preferred Criminal Appeal No.289
of 2002 before the High Court, which has been dismissed vide impugned judgment
and order dated 9.3.2004.
Shri R. Sundaravaradan, learned senior counsel appearing for the
appellants, has submitted that in view of the evidence of alleged
eye-witnesses, namely, Harijana Ramakrishna (PW.1) and Harijana Ayyamma (PW.2),
two accused namely, Chakali Krishna (A2) and Chakali Sreenivasulu (A4) had been
acquitted by the Trial Court.
Sekhar (PW.3) and Muniswamy (PW.4) and A. Samuel (PW.5) had been disbelieved by
the Trial Court. Molakapogu Daveedu (PW.6) and Molakapogu Harijana Pakkiranna
(PW.7) turned hostile and did not support the prosecution. In fact, A2 and A4
had caused fatal injury No.1 on the head. In such 4 a fact-situation there was
no occasion for the courts below to convict the appellants. More so, it is
nobody's case that all the accused persons came with deadly weapons. Therefore,
the question of application of the provisions of Section 148 IPC could not
arise. The entire incident occurred in two parts.
the deceased was hit near the house of Anjaneya Goud and a second time, when as
alleged, the appellants caused serious injuries after taking the deceased in
injured condition near the mosque. In case there is no evidence that all the
appellants were armed with weapons at the time of the first part of the
incident, in absence of any evidence that they had been supplied the arms by
somebody else in between, question of causing serious injuries in the second
part stands falsified.
incident been as alleged by the prosecution, at least, Harijana Ramakrishna
(PW.1), son of the deceased, as he was 24 years of age, could have intervened
and made attempt to protect his father. The incident occurred in a residential
area, no independent witness was examined. All these factors have not been
considered by the courts below in correct perspective.
the appeal deserves to be allowed.
On the contrary, Shri Anoop G. Choudhari, learned senior counsel
appearing for the State, has submitted that two courts have recorded concurrent
findings of fact. The Trial Court had an opportunity to examine the demeanour
of the witnesses and assess their credibility. The Trial Court, after assessing
the evidence on record, reached the conclusion that A2 and A4 had falsely been
enroped in the crime. Therefore, they had been acquitted. However, on the basis
of the depositions of Harijana Ramakrishna (PW.1) and Harijana Ayyamma (PW.2)
the appellants have been convicted and the High Court has affirmed their
conviction. The findings of fact as recorded by the courts below cannot be held
to be so perverse as to warrant interference by this Court. Had Harijana
Ramakrishna (PW.1), the son of the deceased tried to intervene and protect the
deceased, there was a possibility of receiving grievous injuries or he could
have also faced death at the hands of the appellants. The FIR has been lodged
promptly. Appellants were known to the complainant. They had been named in the
FIR. In such a fact-situation, appeal lacks merit and is liable to be
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
Admittedly, FIR was lodged promptly within a period of 2 = hours,
though, the distance between the place of occurrence and the police station was
about 15 kms. All the appellants had been named therein. As per the post mortem
report, following 13 ante-mortem injuries were found on the dead body of the
deceased:- "1. Lacerated wound on right side head, back part of parietal
area. Obliquely placed 7 x 1 = cms x scalp layer deep with a fracture of left
parietal bone 13 cms in width, contusion of brain with fracture of base of
skull in mid cranial fossa 12 cms in length.
Incised wound on right eye-brow 4 x 1 cms x bone deep.
wound on front of right side chest right nipple. Oblique, 4 = x 1 = cms x chest
cavity deep cutting the 4th rib.
wound on left side chest below left nipple obliquely 4 = x 1 = cms x chest
cavity depth cutting ribs 4th and 5th.
wound on front of right upper abdomen outer part 4 x 1 = cms x abdomen deep,
cutting the intestines.
wound on front of left side abdomen, near the midline, oblique, 4 = x 1 = cms x
abdomen cavity deep, cutting the liver.
Incised wound on back of left upper are near the shoulder 4 x 1 = cms x 3 cms
Abrasion with contusion on the back of left elbow and fore-arm 6 x 4 cms red in
Incised would on outer part of left leg near the knee 4 x 1 = cms x bone deep.
stab wound on upper part of right buttock 4 = x 1 = x 5 cms muscle deep.
stab wound on the back of chest upper part, near the spine upper thoracic 4 = x
1 = cms x vertebra deep.
injuries 4 in number on the back of middle of chest 2 on right side of thoracic
spine, 2 on left side measuring 4 x 1= cms, 4 = x 1 cms, 4 = x 1 = cms, 4 = x 1
cms chest cavity deep.
wound on back left side chest lower and outer part obliquely 4 = x 1 = cms x
chest cavity the ribs and injured the left side lung tissues.
8 As per
the medical evidence the cause of death was shock and hemorrhage due to
The Trial Court, after appreciating the evidence on record, came
to the conclusion that the FIR had been lodged most promptly and all the
appellants were named therein. An earlier incident had occurred on 4.11.1998
between the deceased and A1 & A5, thus the deceased was inimical to them.
Harijana Sekhar (PW.3), Muniswamy (PW.4) and A.Samuel (PW.5) came to the spot
after hearing the hue and cry made by Harijana Ramakrishna (PW.1) and Harijana
Ayyamma (PW.2), thus they could not be eye-witnesses of the actual incident.
Therefore, the Trial Court brushed aside their depositions. Molakapogu Daveedu
(PW.6) and Molakapogu Harijana Pakkiranna (PW.7), who were the witnesses of
inquest on the dead body, were declared hostile and, therefore, they did not
support the case of the prosecution. The Trial Court came to the conclusion
that in spite of the fact that Harijana Ramakrishna (PW.1) and Harijana Ayyamma
(PW.2) 9 were family members of the deceased and a dispute had arisen on
4.11.1998, few days before the incident, between the deceased and Chakali
Maddilety (A1) and Chakali Lakshmanna (A5), though there may be a possibility
to enrope some persons falsely, the question of leaving the real culprits for
causing the death of the deceased out of the FIR could not arise. All the
persons involved in the case were from the same village. There was no
contradiction in the version in the FIR and the statement under Section 161 of
Code of Criminal Procedure, 1973, of PW.1 and PW.2 and the case also stood
corroborated by the medical evidence. Therefore, the Trial Court acquitted
Chakali Krishna (A2) and Chakali Sreenivasulu (A4) in view of the fact that
there was no evidence of the deceased being hit by stone and stick. The
depositions of close relatives cannot be discarded merely because they are
relatives, but their evidence has to be considered with due care and caution.
In a case like this, independent witnesses may not come forward to depose, as
out of fear, people prefer to run away from the place of occurrence and avoid
witnessing the crime, but that does not 1 mean that the case can be discarded
only on the ground of non-examination of independent witnesses of the locality.
The Trial Court considered the application of Section 148 IPC
elaborately and held:
regard to participation of A1, A3, A5 to A7, PW1, PW2 who are the eye witness
who actually witnessed the incident specifically stated that A1 and A3, A5 to
A7, formed into an unlawful assembly to commit rioting and A1 stabbed Ayyanna
on his back with a dagger at first place of occurrence itself. The medical
evidence of PW10 who conducted P.M. examination over the dead body of deceased
also shows that he found an incised wound on the back of left upper arm near
the shoulder 4 x 1 = cms muscle deep in size under injury No. 1. So, the injury
No. 7 mentioned in Ex. P14 P.M.report is the injury said to have caused on the
back of deceased by A1 with dagger. Therefore, the medical evidence is totally
corroborating the ocular testimony PW1, PW2 with regard to stab injury caused
on the back of deceased by A1 in front of the house of Ediga Anjhaneyulu Goud.
In Ex.P1 complaint also, PW1/complainant specifically mentioned, that A1
stabbed the deceased on back with a dagger pushing him aside and his mother
(PW2) aside. Therefore, basing on the consistent evidence of PW1, PW2 coupled
with medical evidence of PW10 and Ex. P14 it 1 can safely be held that A1, A3,
A5 to A7 formed into an unlawful assembly to commit rioting against Ayyanna, in
prosecution of common object, A1 stabbed Ayyanna (deceased) thereby A1, A3, A5
to A7 committed the offence punishable under Sec. 148 of IPC. Accordingly, they
are liable to be convicted.
2nd incident of murderous assault against Ayyanna (deceased) PW1, PW2
specifically deposed that all the accused stabbed Ayyanna (deceased)
indiscriminately. In such case, it is very difficult to attribute any specific
overt acts against any of the accused. The overt acts theory cannot be applied,
when more number of persons stabbed a single individual indiscriminately. The
medical evidence under Ex.P14 and oral evidence of PW10 also lending support to
the ocular testimony of PW1, PW2. The P.M. Doctor PW10 found as many as 13
injuries, out of the said injuries, injury No. 2 to 7 and 9 to 13 are stab and
incised wound with similar measurements. Therefore, all the above injuries 2 to
7 and 9 to 13 could have been caused with same type of weapon and said fact was
spoken by PW10 in his evidence."
case to the extent that the appellants stabbed the deceased with dagger and
knife stood proved.
The High Court considered the issue of application of Section 148
IPC and observed:
"The first issue that arises for consideration is whether the offence
under Section 148 IPC is made out against the accused. The evidence of PWs. 1
and 2 clearly establishes that the accused, who were in inimical terms with the
deceased and PW.1, were all at the scene on the night of the incident and they
have virtually encircled them duly armed with daggers and stick. It is also the
evidence of PWs 1 and 2 in categorical terms that the accused even gave blow
with the daggers on the back of the deceased and thereafter they lifted the
deceased bodily and took him near the mosque by which time on account of the
cries of PWs. 1 and 2, PWs. 3 to 5 came at the scene. Under those circumstances
the finding of the learned Ist Additional District and Sessions Judge, Kurnool
that the offence under Section 148 IPC established, cannot be found fault
We have been taken through the evidence of Harijana Ramakrishna
(PW.1) and Harijana Ayyamma (PW.2) and they had been consistent that the
accused were armed with daggers and knives. They encircled the deceased and
Harijana Ramakrishna (PW.1) and caused injuries to the deceased.
version stands fully corroborated by the medical evidence. Thus, we do not find
any cogent reason to interfere with the concurrent findings of fact on this
issue. The Submission made by Shri Sundaravaradan, learned senior counsel, has
no merit and thus not worth acceptance.
other issues both the courts below have considered the submissions made by the
defence and rejected them. We are in full agreement with the said findings of
In view of the above, we are of the considered opinion that the
present case does not warrant any review of the judgments and orders of the
courts below. The appeal lacks merit and is accordingly dismissed.
..................................J. (P. SATHASIVAM)