Para Seenaiah & ANR.
Vs. State of Andhra Pradesh & ANR.
[Criminal Appeal No.
802 of 2012 arising out S.L.P. (CRL.) No.2904 of 2011]
Damineni Rathnamma Vs.
Para Veeraiah & Ors
[Criminal Appeal Nos.
804-806 of 2012 arising out S.L.P. (CRL.) Nos.5597-5599 of 2011]
J U D G M E N T
T.S. THAKUR, J.
1.
Leave
granted.
2.
This
is yet another case in which degenerate village politics has turned violent to
claim a valuable human life. The prosecution story is that out of two factions
in village Nagulavellatur one was led by Para Braimaiah (A-3) while the other
was championed by Bodduluru Rathanam. In the election for the post of Sarpanch of
Nagulavellatur village, Smt. Mahalakshmamma mother of Bodduluru Rathanam
contested against Smt. Karnam Lalithamma who was supported by the accused
persons. Smt. Karnam Lalithamma won the said election in the process
embittering the relationship between the two groups. It is also the case of the
prosecution that complaints and counter-complaints by the members of the two factions
were being made against each other before the police and other authorities in relation
to different issues to wreak revenge against each other.
The strained relationship
and enmity between the two factions led to an incident in which the deceased is
alleged to have made an attempt on the life of one Para Yandaiah, son of
accused No.3 on 6th April, 1996; resulting in the registration of FIR No.17/96
against the former. As an act of reappraisal accused Nos. 1 to 6, 8 to 10 and 18
are alleged to have attacked one Bathala Hajarathaiah and one Thalluru
Chinnaiah on 30th May, 1996 resulting in the registration of Crime No.28/1996
against them.
On the same date at about
12.00 noon all the accused persons are alleged to have formed themselves into
an unlawful assembly armed with deadly weapons like cart pegs and rods with the
common object of killing the deceased left Nagulavellatur village in a tractor and
trailor belonging to A-1 for Yerraballi village which is situate at some
distance on the north eastern side of Nagulavellatur. The prosecution case is
that the accused found the deceased coming along the garden of one Pendem
Venugopal, got down from the tractor and attacked him.
The deceased is
alleged to have run for his life towards the West but the accused persons overpowered
him and caused multiple injuries including fractures on his forearm and legs. The
incident is alleged to have been seen by PWs 1 and 4 who informed PWs. 5 and 6
about the same. PW6 rushed to the scene of occurrence where he found the
deceased lying in an injured condition. On inquiry the deceased told him about
the incident and the fact that the accused had attacked and injured him using
cart pegs and rods. The deceased was shifted to Chejarla Police Station in a tractor
where his statement was recorded by Sub- Inspector of Police.
The police then
shifted the injured to the hospital at Nellore and registered Crime No.27 of
1996 for offences under Sections 147, 148, 324, 307, 341 read with Section 149 IPC.
In the course of investigation the police claimed to have seized nine cart pegs
and one Bitchuva on the disclosure made by the accused. The deceased eventually
died on 7th June, 1996 that resulted in the addition of Sections 148 and 302
read with Section 149 IPC to the case already registered. The Court of Judicial
First Class Magistrate, committed the case to the Court of Additional Sessions
Judge, Fast Track Court at Nellore where the accused pleaded not guilty and
claimed a trial.
3.
In
support of its case the prosecution examined as many as 23 witnesses while the
accused led no evidence in defence. The Trial Court eventually came to the
conclusion that the prosecution had failed to prove the charge of murder
against the accused persons and accordingly acquitted all the accused persons
of the said charges. The Court, however, convicted A-1, A-2 and A-4 for offences
punishable under Section 326 IPC and sentenced them to undergo RI for a period
of three years and a fine of Rs.500/- each, in default to further undergo SI for
a period of three months each.
4.
Aggrieved
by the judgment and order passed by the Trial Court the appellants filed
Criminal Appeal No.2241 of 2004 while the State of Andhra Pradesh filed
Criminal Appeal No.839 of 2007 against all the accused persons questioning
their acquittal for offences with which they were charged at the trial. Criminal
Revision No.138 of 2005 was filed by the complainant against the order of
acquittal of accused persons.
5.
By
the judgment and order under challenge in this appeal, the High Court has,
while dismissing the acquittal Appeal and the criminal revision mentioned
above, affirmed the conviction of A-2 and A-4 for the offence punishable under
Section 326 IPC and the sentence of imprisonment for a period of three years
awarded to them. In so far as A-1 is concerned, the High Court has set aside
the conviction of the said accused and instead convicted him for an offence
punishable under Section 324 IPC and sentenced him to undergo rigorous
imprisonment for a period of one year and a fine of Rs.1,000/- and in default
to undergo further imprisonment for a period of three months.
6.
We
have heard Mr. K.T.S. Tulsi, learned senior counsel for the appellant and Mr.
V. Sridhar Reddy, counsel for the respondent-State who have taken us through
the relevant portions of the two judgments of the Courts below and the evidence
adduced at the trial.
7.
The
prosecution case rests primarily on the depositions of PWs 1 to 3, 4, 6, 11 and
12, apart from the statement of Dr. Krishnaiah (PW18) who happened to be the
Civil Surgeon posted at the relevant time at Government Hospital at Nellore and
Dr. C. Manohar (PW19) who conducted the post-mortem examination of the
dead-body of the deceased.
8.
The
Trial Court has upon appreciation of the depositions of PWs 1 to 4 observed: As
seen from the evidence of P.Ws. 1, 2, 3 and 4 who claimed themselves as eye
witnesses to the incident it is clear that even though they depose that they actually
witnessed all accused attacking the deceased it is clear from their evidence
itself that when once the attack on the deceased by accused commences all these
4 (four) witnesses left that place out of fear. P.W.1 at para 2 made it clear
that after seeing the accused making an attempt to attack the deceased he was
frightened and on hearing the cries of Chowdary, P.W.2, P.W.3 and P.W.4 came there
and he started running P.W.3 and P.W.2 started running towards southern side
and P.W.4 ran towards northern side of the main road. In the evidence of P.W.2
(1st page last line and 2nd page 5th line) it is said that P.W.2 out of fear
ran away from the place.
In the evidence of
P.W.3 (page 2 to 15 lines) he deposed that due to fear of accused he did not go
to rescue Demineni Chowdary and out of fear he (P.W. 3), P.W.1, P.W.3 went to the
village Yerraballi and informed about the incident to the villagers of Yerraballi.
In the evidence of P.W.4 (page 2, 15 to 19 lines) she deposed that due to fear
she ran towards main road running from Chejerla to Kambampadu and in the
village she found K. Penchalaiah (P.W.9) and narrated the incident to him.
9.
After
discussing the evidence, the trial court concluded that PWs 1 to 4 were
witnesses only to the initial attack made on the deceased and that the
prosecution case mainly rested on the dying declaration made by the deceased
before the Investigating Officer. The Court observed: It is said in the
earlier part of the judgment that when the eye witnesses, P.W.1 to 4 are
treated as the persons who had only a chance to witnessing the initial attack
made on the deceased by accused and immediately thereafter all these 4 (four) witnesses
leaving that place out of fear. The case of prosecution depends upon the
statement of the deceased given to P.W. 22 under Ex.P.25 and since Chowdary is
no more, the said statement can be used as a dying declaration given to
P.W.22.
10.
The
Court also recorded a finding that since the accused had caused injury only on
the non-vital part of body of the deceased, there was no intention to do away with
his life. The Court accordingly acquitted the accused of the charge of murder but
convicted them for the offence punishable under Section 326 IPC while acquitting
them of other charges framed against them.
11.
The
High Court has, upon reappraisal of the evidence, affirmed the above finding
and observed: It is true that learned Sessions Judge found that the evidence of
P.Ws. 1 to 4 as to the actual attack on the deceased cannot be considered for
the reasons from their own evidence. They have left the scene after seeing the
accused chasing the deceased and they came only after the attack on the
deceased. The positive evidence of the witnesses P.Ws. 1 to 4 is that they have
enquired with the deceased and the deceased has given a statement to them as to
the assailants on him. So far as the over tacts attributed by the deceased in
Ex.P25 is concerned, there is no variation in the statements of P.Ws. 1 to 4
about the attack on him by A1, A2 and A4.
Therefore, if Ex.P25
is to be considered as a document pressed into service, the evidence of P.Ws. 1
to 4, who have immediately gone to the scene after the injured received the injuries
in the attack, have clearly stated that they have made enquiries. Apart from it
even if their evidence as to actual attack is not believed by the lower court,
the fact remains that they were near the scene before attack cannot be excluded
because all of them have stated that they have seen the accused going in the tractor
and the deceased being present near the scene.
In a factious village
naturally when such an attack is likely to take place most of the persons who
are disinterested will be withdrawing from the scene and going away for their
own safety and therefore, there is no unnaturality in P.Ws. 1 to 4 withdrawing
from the scene and going to the village and thereafter returning only after the
attack on the deceased. The conduct of P.Ws. 1 to 4 cannot be said to be unnatural
and there is no reason to discard their evidence about the information given by
the deceased to them immediately after the attack and within a short time and without
there being any influence on the deceased to implicate the accused.
Therefore, though
there are some shortcomings in recording of Ex.P25 since we find corroboration
from the evidence of P.Ws. 1 to 4 about the truthfulness over the overtacts
attributed to A1, A2 and A4 which are relied on by the lower court from the
evidence of P.Ws. 1 to 4, we find that no appreciation of evidence was done by the
lower court and the lower court has rightly accepted the statement of the deceased
Ex.P.25, which is corroborated by the evidence of P.Ws. 1 to 4.
12.
We
do not see any infirmity or irregularity in the view taken by the High Court in
adopting the above line of reasoning. The fact that the witnesses had seen the
initial attack on the deceased and returned to the scene of occurrence after the
accused had made their escape good, to enquire from him as to what had happened
is not unnatural in the facts and circumstances of the case. In the absence of
any compelling reason to the contrary we do not see any reason to interfere
with the findings recorded by the High Court, as to the genesis of the incident
and the persons responsible for the same.
The prosecution has indeed
failed to establish that the deceased eventually died on account of injuries sustained
by him resulting in the acquittal of accused persons under Section 302 IPC, but
that part of the order passed by the Courts below does not warrant rejection of
the prosecution case in toto. There is sufficient medical evidence on record,
especially in the form of depositions of Dr. Krishnaiah (PW18) who noticed and
certified the following injuries on the person of the deceased when he was
brought to the hospital on 13th May, 1996 at 6.45 p.m.:
a.
Patient
semi conscious. Responding to deep stimulaus only.
b.
Deformity
and generalized tenderness of left fore arm at its middle.
c.
2
long x 1 wide muscle deep lacerated wound on lower 1/3rd of the left leg. Bleeding
present.
d.
1
diameter punctured wound x ½ deep on middle of left leg. Bleeding present.
e.
Diffused
swelling of both ankle joints.
f.
Semi
lunar lacerated injury on sole of left big toe. 2 ½ long x ½ wide muscle
deep. Bleeding present. 7. 3 long x ½ wide muscle deep lacerated wound in the
web between right thumb and index finger. Bleeding present.
g.
3
long x 2 wide reddish contusion over left buttock.
13.
Even
Dr. C. Manohar (PW19) who conducted the autopsy over the dead- body of the
deceased has noticed the fracture of lower end of both tibia and fibula on both
sides with bruising in the surrounding soft tissue and fracture of lower end of
left fore arm bones with bruising in the left soft tissue. There is, thus,
ample medical evidence to support the prosecution case that the deceased had
sustained injuries no matter the same had not been proved to be the cause of
his death a week later.
14.
Even
on the question of sentence awarded to the appellants, we see no reason, much
less a cogent one to interfere. In our view the conviction of A2 and A4 under
Section 326 with a sentence of three years and fine with a default sentence
awarded by the Trial Court as also the conviction of A1 under Section 324 and
sentence of one year with a fine of Rs.1,000/- and in default imprisonment for
three months in the circumstances of the case is perfectly justified.
15.
In
the circumstances these appeals fail and are hereby dismissed.
.
..
J.
(T.S. THAKUR)
.
..
J.
(GYAN SUDHA MISRA)
New
Delhi
May
10, 2012
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