IN THE HIGH COURT OF JUDICATE, ANDHRA PRADESH : HYDERABAD FRIDAY, LTHE TWENTY FIFTH DAY OF SEPTEMBER, TWO THOUSAND AND NINE Present: THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.880 of 2005 Between: Akkala Ramesh & others … Appellants/Accused And: The State, Sub Inspector of Police, L & O, Krishnalanka PS Vijayawada City, rep. by the P.P., High Court of A.P., … Respondent/Complainant THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL No.880 of 2005 JUDGMENT:- This Criminal Appeal is directed against the Judgment dated 31.05.2005 in Sessions Case No.182 of 2004 on the file of Metropolitan Sessions Judge, Vijayawada, Krishna District wherein the appellants/A-1 to A-5 were found guilty for the offences under Sections 148, 448, 324 read with 149 I.P.C. for the assault on P.W.4; found guilty for the offence under Section 324 read with 149 I.P.C. for the assault on P.W.5; found guilty for the offence under section 323 read with 149 I.P.C. for the assault on P.W.6 and found guilty for the offence under Section 307 read with 149 I.P.C. for their attempt to kill P.W.1 and were convicted and sentenced to undergo Rigorous Imprisonment for two years each for the offence under Section 148 I.P.C; one year each for the offence under Section 448 I.P.C; rigorous imprisonment for two years each for the offence under Section 324 read with 149 I.P.C. for the assault on P.W.5; Rigorous imprisonment for two years each for the offence under Section 324 read with 149 I.P.C. for the assault on P.W.4; rigorous imprisonment for one year each for the offence under Section 323 read with 149 I.P.C. for the assault on P.W.6 and undergo rigorous imprisonment for four years each for the offence under section 307 read with 149 I.P.C. for the attempt to kill P.W.1 and also to pay fine of Rs.500/- each and in default, to undergo Simple imprisonment for one month each. A-5 was however, sentenced to undergo Simple Imprisonment for the above said offences as he was stated to be suffering from brain tumor incase the jail authorities certify through jail Doctor that he cannot undergo rigorous imprisonment. 2. The case of the prosecution, in brief, is as follows: The accused are residents of Vijayawada and they are all closely acquainted with each other. A-1 is a notorious rowdy sheeter of I Town Police Station involved in several cases of murder, hurt and robbery. A-2 and A-3 are also involved in cases of hurt of Krishnalanka Police Station. A-1 was also externed from Vijayawada by the Commissioner of Police on 24.04.2001. The complainant – P.W.1 is also resident of Vijayawada. A-2 to A-5 teased one Suneetha in 2001. P.W.1 admonished the accused at that time. Suneetha gave a complaint to the police in Crime No.333 of 2001 for the offences under Sections 509, 506 and 324 read with 34 I.P.C. On 24.01.2002, P.W.1 attended the Court to give evidence in the said case. A-2 to A- 4, with the support of A-1, demanded P.W.1 to enter into a compromise in the case. P.W.1 suggested that the accused should contact the victim lady – Suneetha. A-2 to A-5 bore grudge against P.W.1 for not affecting the compromise and threatened to see his end. On the night of 24/25.01.2002, at about 00.45 hours, A-1 to A-5 formed themselves into unlawful assembly, armed with deadly weapons, like cudgels and iron rods and trespassed into the house of P.W.1. P.Ws.4, 5 and 6 came out of the house and questioned the accused about their arrival at that hour. The accused asked for P.W.1 and raided the house declaring to kill P.W.1. A-1 and A-2 beat P.W.5 with iron rods. A-3 and A-4 beat P.W.6 with cudgels and voluntarily caused injuries. A-5 pushed away Kolapalli Ammaji, wife of P.W.4 and they also beat P.W.4 with a stick on the head. On 25.01.2002, at 01.15 hours, P.W.1 gave a report – Ex.P-1 to the police and the same was registered by P.W.9 – A.S.I. as F.I.R. - Ex.P-5 in Crime No.48 of 2002 of L&O Krishnalanka Police Station and the same was investigated into by P.W.11 – A.Pallapu Raju, the Sub Inspector. P.W.11 visited the scene of offence on 25.01.2002 and prepared observation report – Ex.P-2 and seized the weapons, namely, sticks – M.Os.1 to 3 under panchanama and also prepared rough sketch – Ex.P-7. The injured were subjected to medical examination and after receiving the wound certificates – Exs.P-3, P-4 and P-6 and after completion of investigation, charge sheet was filed for the offences under Sections 147, 148, 448, 307 read with 149 I.P.C. and 326 I.P.C. 3.The accused appeared before the trial Court and charges under sections 148, 448, 307 IPC against A-1 to A-5, 324 against A-1 and A-2, 324 read with 149 I.P.C. against A-3 to A-5, 324 against A-3 and A-4, 324 read with 149 I.P.C. against A-1 and A-2 and A-5, 326 I.P.C. against A-5 and 326 read with 149 I.P.C. against A-1 to A-4 were framed against the accused for which they pleaded not guilty. 4.In support of their case, the prosecution examined P.Ws.1 to 13 and marked Exs.P-1 to P-7 and M.Os.1 to 6. The accused did not adduce any oral or documentary evidence. 5.On conclusion of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. regarding the incriminating circumstances appearing against them in the evidence and they denied the same. 6. On a consideration of the evidence available on record, the learned Sessions Judge, found the accused guilty and convicted them for the offences as stated above and imposed the sentence of imprisonment as stated supra. Aggrieved by the said conviction and sentence, the accused preferred the present appeal. 7.The arguments of learned counsel for the appellants/accused and the learned Additional Public prosecutor for respondent-State are heard. Perused the records. 8. The case of the prosecution is that on the intervening night of 24/25.01.2002 at about 00.45 hours, the appellants-A.1 to A.5 having formed themselves into unlawful assembly, armed with deadly weapons i.e., A.1 and A.2 armed with iron rods, A.3 to A.5 armed with sticks (Mos.1 to 3) trespassed into the house of the complainant-PW.1 by gate crashing and when PW.1’s brother-PW.5 and cousin brother- PW.6 came out of the house, A.1 and A.2 beat PW.5 with iron rod and A.3 and A.4 beat PW.5 with sticks and when PW.1’s mother Ammaji intervened, A.1 pushed her away and all the accused attempted to kill PW.1, who was inside the house and when PW.1’s father PW.4 who was sleeping in the varandah of the house, intervened, he was beat by A.5 and in the incident, PW.4 and PW.5 sustained grievous injuries, PW.6 suffered simple injuries. The motive for the offence alleged is that previously on a complaint of eve teasing given by one Suneetha, police registered a case in Cr.No.333 of 2001 against A.2 to A.5 and that on 24.01.2002, PW.1 came to the Court to give evidence in the said case, A.1 to A.4 demanded PW.1 to enter into compromise, for which PW.1 advised A.1 to A.4 to approach the victim girl Suneetha and that A.1 to A.5 bore grudge against PW.1 for not effecting compromise and threatened to do away PW.1. It is further alleged that on the night of 24.01.2002 at about 10 p.m. while PW.1 was attending a function in the indoor stadium, A.1 to A.3 and others came near the house of PW.1 in an auto and were waiting out side and on seeing them, PW.1’s brother-PW.5 informed PW.1 by telephone advising to be cautious while returning home and PW.1 informed the same to the police and at about 10.30 p.m. police jeep came into the street of PW.1 and on seeing the police jeep, A.1 to A.3 and others fled from the place and after mid night, A.1 to A.3 and others again came upon the house of PW.1 and attacked the inmates of PWs.4 to 6 and caused injuries to them. 9. Learned counsel for the appellants would contend that there are corrections and over-writings in the FIR in Cr.No.48 of 2002-Ex.P.5 regarding the date and the FIR which is said to have been registered at 01.15 hours on the intervening night of 24/25.01.2002, however, reached the learned Magistrate at 02.10 p.m. on 25.01.2002 and the said delay in dispatch of the FIR coupled with the corrections made in the FIR with the help of whitener would throw any amount of doubt over the genuineness of its contents and time of the registration. The said contention was raised before the trial Court also and the learned Sessions Judge held that the corrections in the date and week day from ‘24’ to ‘25’ and ‘Thursday’ to ‘Friday’ are made in the natural course, as the incident occurred and report was given on the intervening night of 24/25.01.2002 and the delay in dispatch of FIR is not fatal. 10. As seen from the evidence of PW.1 and the Sub Inspector of Police-PW.9, report Ex.P.1 was given at about 1.15 a.m. in the early hours of 25.01.2002 and the same was registered as Cr.No.48 of 2002 under Ex.P.5. The incident is said to have occurred at 00.45 hours. Ex.P.1 is therefore given immediately thereafter at 01.15 a.m. It is in the evidence of PW.1 that immediately after the occurrence, he shifted PWs.4 and 5 who received bleeding injuries to the Government Hospital and PW.4 was admitted as inpatient and subsequently PW.4 was shifted to Sowmya Apollo Hospital, for better treatment. PW.2 a neighbour and an independent witness also corroborated the testimony of PW.1 by deposing that the occurrence took place on the intervening night of 24/25.01.2002 and he also proceeded to the hospital along with neighbours for joining them. The medical officer PW.8 of Government General Hospital, Vijayawada testified that he examined PW.4 at 01.10 a.m. and examined PW.5 at 01.15 a.m. and the same is noted in the wound certificate Ex.P.3 and accident register Ex.P.4. Thus apart from the evidence of PW.1, it is borne out by the evidence of independent witness PW.2 and medical evidence of PW.8 that the injured were shifted to Government hospital immediately after the occurrence and were examined by PW.8 at 01.15 a.m. It is in the evidence of PW.9 that he received Ex.P.1 report from PW.1 at 1.15 a.m. PW.11-Sub Inspector also testified that in the early hours of 25.01.2002 he received copy of FIR Ex.P.5 and immediately he took up investigation. It is therefore clear from the evidence on record that the complaint Ex.P.1 was given to the police immediately after the occurrence and the FIR was also registered immediately thereafter and PWs.4 and 5 were medically examined at the Government hospital shortly after the occurrence itself. In Ex.P.3 and P.4 also time of the examination is noted as 01.10 a.m. and 01.15 a.m. When once it is shown that the complaint was lodged promptly without any delay whatsoever, the fact that FIR reached the learned Magistrate on the after noon of the next day i.e., 25.01.2002 is of no consequence. The promptness with which the complaint was given would show the genuineness of its contents and thereby ruling out any possibility of design or deliberation. The corrections made in the FIR as rightly observed by the learned Sessions Judge appears to have been made in the natural course, as the incident occurred and complaint was lodged shortly after mid night of 24.01.2002. There are no corrections or over-writings found in the complaint Ex.P.1 or in the endorsement of registration made at the bottom of Ex.P.1 wherein it is noted that the complaint was received at 01.15 hours on 25.01.2002 and the same was registered as FIR in Cr.No.48 of 2002. The said corrections of the date and weekday in the printed form of FIR Ex.P.5 are therefore of no consequence and at any rate, they do not have any bearing over the genuineness of the contents. The contention of the learned counsel for the appellant that the complaint Ex.P.1 and FIR Ex.P.5 are fabricated after due deliberations, is therefore held untenable. 11. The next contention of the learned counsel for the appellants is that the prosecution has not duly established the identity of the accused as assailants, as the full name and descriptive particulars of the accused are not mentioned in Ex.P.1 and no test identification parade was also conducted. It is not the case of the prosecution that the accused were strangers to PW.1 and injured- PWs.4 to 6. According to the prosecution, the accused were having previous disputes with PW.1. Specific motive is alleged to the effect that when PW.1 came to the Court on 24.01.2002 to give evidence in the eve teasing case filed by Sunitha, A.1 to A.4 approached him and demanded to effect compromise and as PW.1 pleaded helplessness, accused bore grudge against him. It is not disputed that PW.1 was municipal councilor of the area having got elected as a candidate of BJP. It is specifically suggested in the cross-examination of PW.1 that the accused are sympathizers of Congress party and active workers of the said party and they acted against PW.1 by supporting the candidate who contested on congress party symbol and therefore PW.1 bore grudge against the accused and foisted false case against them by obtaining report from Sunitha. It is also suggested to PW.1 that he was threatening to implicate the accused in several cases and because of political grudge, he implicated the accused in the present case falsely. PW.1 denied the suggestion. The fact however, remains that the above suggestions would reveal that there was previous acquaintance between the accused and PW.1 and they were not strangers to each other. When that is so, the question of any dispute regarding identity of the accused does not simply arise. 12. In Ex.P.1 PW.1 has specifically alleged that A.1 to A.5 came upon his house and attacked the inmates. The motive for the offence as stated above is also referred to in Ex.P.1. The prior incident of the accused waiting out side the house of PW.1 earlier to the incident on the night of 24.01.2002 is also referred to in Ex.P.1. Of course in Ex.P.1, PW.1 referred to the accused by their alias names of Ramesh, Laddu, Yerranani, Kanna, Nallodu and Kotlu, but not their full names. In the charge sheet, the full names of the accused and also their alias names are mentioned. It is not the case of the accused nor any suggestion is made to the witnesses that the accused do not have the alias names as mentioned in the charge sheet. In Ex.P.1 it is alleged that in July 2001, Laddu-A.2, Yerranani-A.3, Kanna-A.4 and Nallodu indulged in teasing of girl Sunitha and he intervened and warned them. The names of all the accused A.1 to A.5 are also referred to in Ex.P.1 regarding the incident on the intervening night of 24/25.01.2002. Except for A.1, other accused are referred to by their alias names. In the evidence also PW.1 and the injured witnesses PWs.4 to 6 referred to the accused by their alias names. The fact that PW.1 and other injured witnesses were referring to the accused by their alias names would only indicate their close acquaintance with the accused, which circumstance also supports the contention of the prosecution that the accused were no strangers to PW.1 and other injured. Under those circumstances, the fact that full names of the accused are not mentioned in the complaint Ex.P.1 is of no consequence. 13. The absence of any reference to the existence of any lights at the place of occurrence in the FIR is also immaterial. FIR is intended to set the criminal law into motion, and need not contain all the details of the occurrence or surrounding circumstances. It is not elicited in the evidence of any of the witnesses that it was a dark night and there was darkness at the place of occurrence inside the house of PW.1 at that time and therefore, there was no occasion for PW.1 and PWs.4 to 6 to identify the assailants. As the accused are known persons and the incident took place for about ten minutes as can be seen from the evidence of PW.1 and the injured, there was ample opportunity for PW.1 and the injured to identify correctly the assailants. The failure to conduct test identification parade is not fatal for the prosecution case and in fact, in the facts and circumstances of the present case narrated supra, there is no need for conducting test identification parade at all, as the accused are having prior acquaintance with PW.1 and the injured. 14. Learned counsel for the appellants/accused next contended that PW.1 and the injured PWs.4 to 6 being closely related inter-se, their testimony cannot be given much weight, the same being interested. He would further contend that as PW.1 is stated to be inside the room, there was no occasion for him to witness the occurrence, which took place out side of the room, there being no windows in the separating wall as can be seen from the rough sketch Ex.P.7. The occurrence is said to have taken place in the first room and PW.1 is said to have been staying in the next room. According to the prosecution, as the accused were pursuing PW.1 aiming to attack him, he was made to stay in the anti-room, while PWs.5 and 6 slept in the front room and PW.4-father of PW.1 slept out side in the varandah. In the course of incident after committing assault on PWs.5 and 6, the accused who noticed PW.1 in the next room, tried to force their way in to the said room, and PW.1’s mother tried to halt them at the intervening door and she was pushed away by A.5 and when PW.1’s father PW.4 intervened, he was severely beat by A.5 with sticks. Though there are no windows in the wall that separates the two rooms, there is, however, a doorway in between the two rooms through which the accused made an attempt to enter the second room to attack PW.1. But after assaulting A.5 severely, the accused fled from the scene. There is nothing on record to show that the door in between the two rooms was closed. On the other hand, the evidence on record shows that the accused also saw PW.1 in the second room and made an unsuccessful attempt to reach him. Thus, there was ample opportunity for PW.1 who was in the second room to witness the incident that was taking place in the first room through intervening door. 15. Though PWs.4 to 6 are related to PW.1, it should be noted that they are injured witnesses. PW.6 did not sustain any bleeding injury, but PW.4 suffered grievous injuries besides other injuries and PW.5 suffered simple injury as per the medical evidence. Their testimony regarding the time of occurrence, weapons used, nature of injuries suffered, location of injuries on their person are corroborated by the medical evidence of PW.8 and PW.10 coupled with Exs.P.3, P.4 and P.6. PW.8 Medical Officer, who examined PW.4 at 01.10 a.m. found a laceration of 3 cm x 0.5 cm x 0.5 cm on left side scalp and another laceration of 3 cm x 0.5 cm x 0.5 cm on right side of scalp and issued Ex.P.3 wound certificate. He did not, however, give any opinion regarding nature of the injuries as PW.4 refused to get admitted as inpatient. It is in the evidence of PW.4 that he was shifted to a private hospital i.e., Sowmya Apollo Hospital for better treatment. The testimony of PW.10-Casuality Medical Officer in Sowmya Apollo Hospital, Vijayawada shows that PW.4 was admitted on 25.01.2002 as inpatient, and was discharged on 29.01.2002 and as per Ex.P.6 wound certificate, PW.4 sustained the following injuries. 1. Left parietal hemorrhagic contusion; 2. Depressed fracture of left parietal bone;’ 3. Contusion involving left parietal cortège; 4. A cute subarchonoid bleed left partial sulky; 5. Soft tissue swelling left parietal region. Out of them injury No.2 is depressed fracture of left parietal bone which is grievous injury. 16. Learned counsel for the appellants would contend that PW.10 not being the doctor, who examined and treated PW.4, is not competent to testify as to the nature of the injuries or to prove the contents of Ex.P.6. According to the prosecution, Dr. Rathnam, who examined and treated PW.4 is not available as he is no longer in the service of Sowmya Apollo Hospital and therefore, PW.10-Casuality Medical Officer of the said hospital, who is acquainted with the writings of Dr. Rathnam is examined to prove Ex.P.6. PW.10 also testified that he is acquainted with the signature of Dr. Rathnam from the records and the said Dr.Rathnam resigned in 2003. Under those circumstances, as the whereabouts of Dr. Rathnam are stated to be not known and he is not traceable, the prosecution is entitled to lead the secondary evidence. It is not as though the prosecution is relying entirely on the evidence of PW.10 and Ex.P.6 to prove the injuries on PW.4. Before joining Sowmya Apollo Hospital, PW.4 was medically examined by PW.8-Medical Officer, Government General Hospital, Vijayawada, who issued Ex.P.3 wound certificate. 17. PW.6 admittedly did not sustain any visible injuries as such and therefore he is not put to any medical examination. The evidence on record however shows that A.3 and A.4 beat PW.6. When the testimony of injured witnesses PWs.4 to 6 is thus corroborated by the medical evidence also, their evidence is certainly entitled for weight and credence and the same cannot be brushed aside on the ground of relationship with PW.1. It is well settled that mere relationship among the witnesses is not a ground to reject their evidence and when the witnesses are closely related to each other, their evidence has to be scrutinized with care and caution. In the present case, no material contradictions or omissions are elicited in the cross-examination of PWs.1, 4 to 6 so as to discredit their testimony. Their evidence is cogent, consistent and mutually corroborative and is also in consonance with the complaint Ex.P.1 regarding the manner in which the incident occurred and the overt acts alleged against the accused. 18. That apart, PWs.2 and 3 who are neighbours and independent witnesses also corroborated by way of circumstantial evidence. PWs.2 and 3 are not eyewitnesses to the occurrence. But PW.2 testified that while he was returning home on that night, he heard cries from the house of PW.1 and noticed four persons attacking PW.1 and he saw the assailants from near by and after the assailants left the scene, he went inside the house of PW.1 and found father and brother of PW.1 lying with injuries. He accompanied them to the hospital. There is absolutely no reason as to why PW.2 should depose falsely against the accused or in favour of prosecution. Similarly PW.3 another resident of that locality, testified that on that night at about 10 p.m. he saw the accused in the street near the house of PW.1 and meanwhile police jeep came and the accused fled from the place. Presence of the accused near the house of PW.1 during the earlier incident at 10 p.m. is spoken to by PW.3 and the presence of the accused near the house of PW.1 and PWs.4 and 5 sustaining injuries is spoken to by PW.2. Thus, on reappraisal of entire evidence, it is held that the presence and participation of the accused in the occurrence resulting in injuries to PWs.4 and 5 is duly established by the prosecution not only through direct evidence of PWs.1, 4 to 6, but also circumstantial evidence of PWs.2 and 3 and medical evidence of PWs.8 and 10. 19. Learned Sessions Judge found A.1 to A.5 guilty of the offence under Sections 307 read with 149 IPC and convicted and sentenced them to undergo rigorous imprisonment for four years each and also to pay fine of Rs.500/- each. Though