REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 802 OF 2012
(Arising out S.L.P. (Crl.) No.2904 of 2011)
Para Seenaiah & Anr. …Appellants
Versus
State of Andhra Pradesh & Anr. …Respondents
With
CRIMINAL APPEAL NOS. 804-806 OF 2012
(Arising out S.L.P. (Crl.) Nos.5597-5599 of 2011)
Damineni Rathnamma …Appellant
Versus
Para Veeraiah & Ors. …Respondents
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.:
“1. Patient semi conscious. Responding to deep stimulaus
only.
2. Deformity and generalized tenderness of left fore arm at
its middle.
3. 2” long x 1” wide muscle deep lacerated wound on lower
1/3rd of the left leg. Bleeding present.
4. 1” diameter punctured wound x ½” deep on middle of left
leg. Bleeding present.
5. Diffused swelling of both ankle joints.
6. 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.
8. 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
