HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.173 of 2006 JUDGMENT: The appellants 1 to 7 are A.1 to A.4 and A.6 to A.8 respectively. The lower Court convicted A.1 to A.4 under Section 304 Part-II IPC and sentenced them to rigorous imprisonment of three years and fine of Rs.100/- each. The lower Court also found A.1 to A.3 and A.6 to A.8 guilty under Section 324 IPC and accordingly convicted and sentenced them to rigorous imprisonment of two years and fine of Rs.50/- each. Questioning the same, A.1 to A.4 and A.6 to A.8 filed this appeal. A.5 died during pendency of proceedings in the lower Court and the case against him stood abated. 2. There were two disputes between the parties. The accused and the prosecution party are having properties in the same locality. Drain water from the house of A.1 was coming into house of PW.1 and the deceased. When A.1 was questioned about the same, A.1 raised a counter dispute with regard to pendal (porch) in front of house of the deceased Peddireddy alleging that it was causing obstruction for passage. The matter was placed before an elder by name Mekapati Chandrasekhar Reddy. There were quarrels between the parties with regard to these two disputed affairs. The offence took place on 21.05.1997 in front of house of PW.8. House of A.2 is also located by the side of PW.8’s house. It is alleged that during early hours on that day at about 5.00 A.M., A.1 to A.8 attacked the deceased Peddireddy with sticks causing injuries to him and that when PWs.1 to 4 and others rushed on hearing cries of the deceased, PWs.1 to 4 and another were also beaten by the accused causing simple injuries to them. The deceased succumbed to the injuries after three days of the incident while undergoing treatment in hospital. Plea of the accused is one of not guilty. It is their contention that the prosecution party came in aggression against them and caused injury to A.1, A.2 and A.5 and that they did not inflict any injuries on the prosecution party. After trial, the lower Court found A.1 to A.4 guilty under Section 304 Part-II IPC and A.1 to A.3 and A.6 to A.8 guilty under Section 324 IPC. 3. In this appeal, it is contended by the appellants’ counsel that the prosecution party were the aggressors in the transaction and that the Investigating Officer also came to the conclusion that the prosecution party was the aggressor and that therefore even if there was evidence of the accused beating the deceased and PWs.1 to 4, it can only be taken as in exercise of right of private defence against the prosecution party. It is also contended that the prosecution party did not explain injuries sustained by A.1, A.2 and A.5 and that therefore the prosecution of the accused is untenable. It is further contended for the appellants that since the lower Court found the accused not guilty under Section 148 IPC, the appellants would be liable only in respect of the overt-acts attributed specifically to each of them and that on omnibus allegations against A.1 to A.4, all of them cannot be found guilty under Section 304 Part-II IPC. 4. Insofar as the offence under Section 324 IPC is concerned, the lower Court found each of the accused liable for the overt-acts with which they were charged against the injured witness. It is in the evidence of PWs.1 to 4 that A.1 to A.4 surrounded the deceased and beat him with sticks. The other eye-witnesses PWs.5 to 7 and 9 also did not specifically state which of A.1 to A.4 beat the deceased on which part of his body. As per the prosecution evidence, it was a case of indiscriminate beating of the deceased by A.1 to A.4 causing injuries to him with sticks. 5. PW.14, who is the Civil Assistant Surgeon in Government Hospital, Atmakur found the following external injuries on the deceased: 1. Abrasion of size 2” x 1” present over the outer aspect of the right ankle joint. 2. Abrasion 2” x 2” over the inner aspect of the lower 3rd of the right leg. 3. Abrasion of the size 2” x 2” over the outer aspect of the upper 3rd of the right leg. 4. Abrasion 4” x ½” over the dorsal of the left hand 5. Abrasion of 8” x 4” right scapular object. 6. Abrasion of 1” x 6” outer aspect of right glutial region. 7. An oblique lenier contusion of 8” x 2” x ½” over the inner aspect of lower 3rd of right thigh. 8. An oblique lenier contusion of 6” x 2” x ½” over the outer aspect of left knee joint. 9. An oblique linier contusion of 4” x ½” over the outer aspect of lower 3rd of left thigh. 10. A contusion of 6” x 5” x ½” present over the sternum. 11. A contusion of eye 6” x 5” present over the right frontal region. It is contended by the appellants’ counsel that all the said injuries are simple and superficial in nature. After death of the deceased, his dead body was examined by PW.15 who was the then Professor in Forensic Medicine, Stanly Medical College, Chennai and he issued Ex.P.12 post- mortem examination report. Apart from 9 external injuries noted by him, on dissection of skull, PW.15 found the following: “ Dark red contusion of scalp tissues 6 x 3 x 0.5 cms. Over right side of frontal region and there is no injury to the skull bone. Brain is oedematous and dark red haemorrahagi spots diffusely seen within the white matter of both cerebral hemispheres and mid-brain. On dissection of the scalp I found dark red contusion of scalp tissues 6 x 3 x 0.5 cms. over the right side of frontal region and there is no injuries skull bone. For this I did not find any corresponding external injury. If blunt object is used to cause the above said injury due to the presence of hair there may not be any external injury visible”. PW.15 finally opined that the deceased would appear to have died of effects of intracerebral and brain stem hemorrhage. It is contended by the appellants’ counsel that when there are no corresponding external injuries for the internal hemorrhage noted by PW.15, it cannot be said that the accused were responsible for the internal brain hemorrhage of the deceased. From the date of offence upto the date of his death, the deceased was continuously in hospitals and was not having any consciousness. There is no evidence of any extraneous factor than the offence which intervened in order to cause brain hemorrhage to the deceased. The above reasoning given by PW.15 satisfies that even without there being any corresponding external injury, such internal injuries are possible. Therefore, I have no hesitation to hold that death of the deceased is the direct result of indiscriminate attack of the deceased by A.1 to A.4 with sticks. Since it is a case of indiscriminate attack of the deceased by A.1 to A.4 with sticks, all A.1 to A.4 are liable for the result which flowed from their indiscriminate attack. In a case of indiscriminate attack of the injured/deceased, sifting of evidence on the basis of specific overt-acts is not possible. 6. Even though PW.16 Sub-Inspector of Police/Investigating Officer in cross-examination stated that his investigation in C.C.No.16 of 1999 disclosed the prosecution party herein are the aggressors, the prosecution or the accused did not place any material before the Court to show on what basis PW.16 came to the conclusion that the prosecution party herein were the aggressor. In a case in which two different cases are filed against each of the parties for participating in the same transaction, it is necessary to place before the Court all the documents relating to the counter case in order to show which of the two parties was the aggressor. The police filed C.C.No.16 of 1999 against the prosecution party for the injuries sustained by A.1, A.2 and A.5 in the same transaction. Except marking wound certificates of A.1, A.2 and A.5 respectively as Exs.D.4 to D.6, no other material is placed before this Court. No copy of F.I.R. in that case is placed before the Court and no injured in C.C.No.16 of 1999 namely A.1, A.2 and A.5 herein offered to examine themselves as defence witnesses herein. In the absence of any such material before this Court, there can be no basis for the Court to conclude that the prosecution party herein were the aggressors. Not only PWs.1 to 4 and the deceased, but also father of the deceased who died by the date of trial in the lower Court, suffered injuries on the prosecution side. There is no material placed before this Court to show what was the result in C.C.No.16 of 1999 which was filed against the prosecution party herein. Since three persons suffered injuries on the accused side and six persons suffered injuries on the prosecution side, it can be concluded that it was a case of melee in which both the parties sustained injuries in free fight. In that view of the matter, failure to explain injuries of A.1, A.2 and A.5 herein would not be fatal to the present case. Each of the parties have to be found guilty for their participation in the transaction. Hence, I am of the opinion that A.1 to A.4 who attacked the deceased indiscriminately cannot be absolved from liability on any ground. The lower Court rightly found them guilty under Section 304 Part-II IPC having regard to the consequence of death of the deceased which flowed from their indiscriminate beating. 7. Insofar as the offence under Section 324 IPC is concerned, the lower Court believed evidence of PWs.1 to 4 with regard to the specific overt-acts spoken by the witnesses about causing injuries to them by each of the accused. I do not find any circumstances to find fault with the lower Court on the said finding based on assessment of evidence of prosecution witnesses. But at the same time, I am of the opinion that sentence of imprisonment of two years awarded by the lower Court on all the appellants @ 2 years for simple injuries sustained by A.1 to A.4 is on higher side. 8. In the result, the appeal is dismissed, except to the limited extent of altering period of imprisonment awarded by the lower Court to the appellants for the offence under Section 324 IPC from two years to the period they had already undergone. The sentence passed by the lower Court against A.1 to A.4 for the offence under Section 304 Part-II IPC is hereby confirmed. ____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 14th November, 2011. PNV