HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.566 OF 2007 Between: Marikanti Sri Ramulu and others …. Appellants and State of Andhra Pradesh, rep. By Public Prosecutor …. Respondent This court made the following: HONOURABLE SRI JUSTICE A.GOPAL REDDY AND HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.566 OF 2007 JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) A1, A3, A4 & A6 filed this criminal appeal questioning the conviction and sentence recorded against them by VI Additional Sessions Judge, Mahabubnagar vide judgment, dated 17.05.2007, whereby A1, A4 and A6 were convicted and sentenced to undergo imprisonment for life for the offences punishable under Sections 302 r/w 34 of the Indian Penal Code, 1960 (for brief, “IPC”) and A3 was convicted and sentenced to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs.500/- in default simple imprisonment for one month for the offence punishable under Section 324 IPC and also to suffer rigorous imprisonment for three years and sentenced to pay a fine of Rs.500/-, in default simple imprisonment for one month for the offence punishable under Section 326 IPC. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- P.Ws.1, 7 and 10 are the brothers and P.W.8 is the wife of the deceased. On 02.12.2001, P.Ws.10’s marriage was performed and on that evening, when P.W.10 requested Veeranna Venkataiah to give some vessels for preparing food, the accused picked up quarrel with P.W.10 and beat him. On seeing the same, P.W1 and the deceased rushed to the scene and beat A1. On that they issued a report against them. Then on 05.12.2001 at about 06:30 a.m., Raghuram (the brother of A1) went to the house of P.W.1 and abused P.W.4 where number of persons gathered in front of the house and then somebody beat Raghu Ramulu, as a result he received blood injuries. Then all the accused poured kerosene on the doorway and set fire. Then P.W.1 and his father (L.W.1) came from the house and L.W.1 received burn injuries on his leg. Then A3 beat P.W.1 with stick on his face and head and further all other accused also beat him all over the body. Then A1, A4, A6 and A8 beat the deceased with sticks. The accused further beat P.Ws.2 and 3. As per P.W.1 on the telephone information given by P.W.10 Jadcherla police came to the scene and shifted the injured to the hospital, whereas according to P.W.14 the then sub-inspector of police Jadcherla at about 10:30 A.M. L.W.1 came to the police station and presented a written report Ex.P1. Basing on the same, he registered a case in crime No.238 of 2001 and issued F.I.R under Ex.P17. He then visited the hospital and recorded the statement of P.W.1, the deceased and others. He then rushed to the scene of offence and recorded the statement of P.Ws.4 and 6 and others. He then held scene of offence panchanama in the presence of P.W.9 under Ex.P9. On 13.12.2001 he arrested A1 to A10 and at the instance of A1 to A3 and A8 cart pegs M.Os.4 to 7 were recovered in the presence of P.W.11 under Exs.P20 to P23 respectively. On 30.12.2001 on receiving the death intimation of the deceased that he died on 29.12.2001, P.W.14 altered the section of law and issued altered F.I.R. under Ex.P24. Then on the same day he went to Osmania General Hospital and held inquest over the dead body of the deceased in the presence of P.W.12. Thereafter the C.I. of police took up further investigation and after completion of investigation, he filed the charge sheet. 3. The Magistrate committed the case to the court of Sessions, Mahabubnagar and the case is made over to I Additional District and Sessions Court, Mahabubnagar. After appearance of the accused charges under Sections 48, 302 r/w 34, 324 r/w 149 and 326 r/w 149 IPC have been framed, read over and explained to them and the accused pleaded not guilty. Later the case was made over to VI Additional District and Sessions Court, (Fast Track Court), Mahabubnagar. 4. In order to prove the case of the prosecution, prosecution examined 14 witnesses as P.Ws.1 to 14 and got marked Exs.P1 to P25 documents, besides marking M.Os.1 to 7. After closer of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. on the incriminating evidence produced against them. 5. Heard the learned counsel for the appellants as well the learned Public Prosecutor. 6. Now the point for consideration is: “Whether the conviction and sentence recorded by the trial court against the appellants is sustainable or not?” P O I N T : 7. In the present case, except P.Ws.1 and 13 all other witnesses turned hostile and not supported the case of the prosecution. A reading of the impugned judgment does not reveal any proper reasoning for convicting the appellants and the learned Sessions Judge has not appreciated the evidence in proper perspective, which led to conviction of the appellants. 8. The prosecution has arrayed 12 persons as accused among whom two persons died and the case against them was abated. P.W.1, who is the brother of the deceased, deposed in the Court that the appellants herein were the persons who caused injuries to the deceased with sticks. Though an opportunity was given to the appellants for cross-examining P.W.1, their counsel failed to cross- examine him. The learned Sessions Judge observed that the appellants have not utilized the opportunity. Hence, the learned Sessions Judge has decided to proceed further only on the basis of the evidence adduced by P.W.1 in his chief examination. 9. It is well settled law that evidence means not only what is deposed in chief examination, but also what is brought into light from the cross-examination. The evidence, which is not subjected to cross- examination, cannot be taken into consideration while deciding the merits of the case/to form an opinion. 10. The learned Sessions Judge ought to have given sufficient opportunity to the appellants to cross-examine P.W.1. The learned Sessions Judge simply believed the evidence of P.W.1. There is nothing wrong in such appreciation of evidence, but at the same time, the trial Judge should keep in mind the fact that he is passing an order for an offence, which is punishable with the minimum sentence of life imprisonment. 11. On perusal of the entire record it is seen that the doctor, who conducted post mortem examination, was not examined by the Prosecution and the post mortem certificate is also not marked. It is also to be noted in a case of murder, there should be evidence not only as to the persons who caused injuries, but should also to the effect that the death is homicidal in nature, and the cause of death also to be placed on record. In the present case, the evidence adduced by the Prosecution is not clearly to the effect that the death of the deceased is due to the injuries sustained by him, which are said to be caused by the appellants herein. In the absence of any such evidence connecting the injuries with the cause of death, the learned Sessions Judge ought not to have convicted the appellants for an offence punishable under Section 302 IPC. 12. The learned Sessions Judge also convicted A.3 for an offence punishable under Sections 324 and 326 IPC. The learned Sessions Judge in the impugned judgment has observed that the injuries are grievous in nature. The aspect as to whether an injury is grievous or simple has to be decided in terms of Section 320 IPC wherein the kinds of hurt, which are to be designated as ‘grievous’ are given, but the same should not be on the basis of the evidence adduced by the Doctor. 13. It is seen from the impugned judgment that though the schedule is fixed for examining the Doctor, who conducted the post mortem examination, and the Inspector of Police, who investigated the case, the Police failed to serve summons on the said witnesses and thereby the learned Sessions Judge closed the case of the prosecution, which procedure is unknown to procedural Law. It is the prerogative of the prosecution to examine the witnesses and when an opportunity was sought by the prosecution in a case under Section 302 IPC, it is the bounded duty of the Sessions Judge to give an opportunity to examine the investigating officer. The learned Sessions Judge without adopting proper procedure closed the case of the Prosecution and convicted the appellants. 14. It is further seen from the impugned judgment that after convicting the accused for an offence under Section 302 IPC with life imprisonment, the learned Sessions Judge also opined that the benefit of Section 428 Cr.P.C. cannot be extended to the accused in view of the fact that the conviction is under Section 302 IPC, which procedure is also unknown to procedural law. Therefore, we are of the considered view that the entire judgment suffers with infirmities and perversities. 15. In view of the above discussion, this Court is of the opinion that the impugned judgment needs interference of this Court by setting aside the conviction and sentence passed by the learned Sessions Judge. Accordingly, the conviction and sentence passed by the learned Sessions Judge is set aside. 16. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded by Special Sessions Judge-cum-VII Additional Sessions Judge, FAC, VI Additional Sessions Judge, Mahabubnagar in Sessions case No.52 of 2003, dated 17.05.2007, against the appellants for the offence punishable under Sections 302 r/w 34 and 148 IPC against A1, A4 and A6 and for the offences punishable under Sections 324, 326 and 148 IPC against A3 are set aside. The appellants shall be released forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellants shall be returned to them. __________________ A.GOPAL REDDY, J ________________ RAJA ELANGO, J 8th October 2010 LMV