THE HONOURABLE SRI JUSTICE D.S.R.VARMA AND THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1315 of 2007 ORAL ORDER: (Per the Hon’ble Sri Justice D.S.R.Varma) Heard the learned counsel appearing for the appellants-A-1 and A-2 as well as the learned Public Prosecutor, appearing for the respondent-State. 2. This Criminal Appeal, filed under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment, dated 21.09.2007, passed by the III Additional District and Sessions Judge, (Fast Track Court), Nellore, in Sessions Case No.256 of 2001, whereunder and whereby A-1 and A-2 are found guilty of the offences punishable under Sections 324 and 302 of the Indian Penal Code, 1860 (for short ‘IPC’), respectively, and A-1 was sentenced to undergo rigorous imprisonment for one year, and A-2 was sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for three months. 3. In all there were 20 accused. The trial Court had recorded order of acquittal as against the other 18 accused except the present appellants. 4. The case of the prosecution is as under: - P.W-4 is the son and P.W-5 is the wife of the deceased; that P.W.8 is the wife of P.W.3; that the deceased, the accused and the material witnesses are residents of Chinthalapalem Village; that there were factions in the village; that the deceased and the material witnesses belong to one group whereas the accused belong to another group; that there was a vacant government site near the house of the deceased in Harijanawada; that the accused used the said site for attending to calls of nature; that the people of Harijanawada objected the same, but the accused did not heed to their words; that there is a pathway in the vacant land, which leads to the agricultural lands of A.2; that the RTC bus often plies on the same pathway to the village. While so, on 08.04.1998, at about 4 or 4.30 pm, while P.Ws.1 to 3 were erecting fence across the disputed site and obstructing the use of the pathway, the accused and some others armed with axes, sticks and iron rods came to the scene of offence and A.2 questioned P.Ws.1 to 3 for erecting the fence and the accused abused them by naming their caste and beat them; that on hearing their cries, P.W.4 rushed to the scene of offence; that on seeing P.W.4, A.1 beat him on his head and left shoulder with a stick; A.2 beat him with an axe on the back side of his head; A.4 beat him with an iron rod on his right shoulder; that A.7 hacked him with an axe on his right neck and on his back side; that on hearing the commotion, P.Ws.5 to 7 and the deceased came there; that on seeing the attack on P.W.4, the deceased intervened to rescue his son (P.W.4); that A.1 instigated the other accused to do away the life of the deceased and also beat him with a stick on his head; that A.2 hacked the deceased with an axe on the back side of his head; that A.4 beat the deceased with an iron rod on his right leg; that A.20 beat the deceased with a stick on his legs; that A.6 and A.7 hacked the deceased with axes on his both legs; that some time later, the women folk of both the parties gathered there and there was a quarrel between the two groups; and that then one Sannala Venkata Reddy and other farmers of the village brought a D.B. cart and took the injured to Vinjamoor Hospital for treatment. Further, on 08.04.1998, at about 7.30 pm., P.W.16- Head Constable of Vinjamoor Police Station, on receiving the hospital intimation, went to the hospital and recorded the statement of P.W.1, under Ex.P-10; that on the basis of Ex.P.10, P.W.17-Sub-Inspector of Police registered a case in Crime No.16 of 1998 under Sections 147, 148, 324 read with 149 IPC and Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and issued F.I.R, under Ex.P.12; that P.W.17 took up investigation, visited the hospital and recorded the statements of P.Ws.1 to 5 and the deceased; that on the same day, at about 7.40 pm., P.W.12 examined P.Ws.1 to 5 and issued wound certificates, under Exs.P-4 and P-8, respectively; and that on the same day at about 7.35 pm., P.W-12 also examined A-1 and A-2 and issued wound certificates, under Exs.D-18 and D-17, respectively. On 09.04.1998 P.W-17 visited the scene of offence, prepared the scene of observation report, under Ex.P-2, and drew the rough sketch, under Ex.P-13, in the presence of P.Ws.10 and 14 and since no incriminating material was found at the scene of offence, he could not seize anything. Thereafter, P.W-17 recorded the statements of P.Ws.6 to 9 and another. The deceased, who was shifted to Nellore Hospital, and from there to Government General Hospital, Chennai, died on 09.04.1998 at about 10 pm. Through P.W-13, the death intimation was sent to Vinjamoor Police Station on 10.04.1998, on which basis, P.W-17 altered the Section of law to 302 IPC apart from other Sections and issued altered FIR, under Ex.P-15. On 11.04.1998 P.W-15-Professor of Forensic Medicine, Madras Medical College, conducted autopsy over the dead body of the deceased and opined that the cause of death was due to shock and haemorrhage due to head injuries and issued post-mortem certificate, under Ex.P-9. P.W-18-Cirlce Inspector of Police took up investigation and recorded the statement of P.W-13. After completion of investigation and after collecting the required documents, he filed the charge sheet. 5. When charges under Sections 148, 302 and 324 IPC and under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act were framed against A-1 and A-2, read over and explained to them in Telugu, they denied the offences and claimed to be tried. 6. In order to substantiate its case, the prosecution examined P.Ws.1 to 18 and got marked Exs.P-1 to P.16, on its behalf. On behalf of defence, none was examined and Exs.D-1 to D-20 were marked. 7. The trial Court, after considering the evidence on record, found A-1 and A-2 guilty of the offences punishable under Sections 324 and 302 IPC, respectively, and accordingly, convicted and sentenced them, as stated supra. 8. The only point that arises for consideration, in this Criminal Appeal, is as to whether the trial Court had appreciated the evidence on record in a right perspective in order to convict the appellants 1 and 2/Accused Nos.1 and 2 . 9. P.W-4 is the son and P.W-5 is the wife of the deceased. As could be seen from the case of the prosecution, it appears that the material witnesses belong to one group, whereas the accused belong to the other. In other words, the accused and the deceased belong to two factions. 10. The main thrust of the learned senior counsel- Sri C.Padmanabha Reddy, appearing for the appellants-A-1 and A-2, is on two counts – firstly, after the deceased was shifted to the hospital, P.W-17-the Sub-Inspector of Police recorded his dying declaration, but the same was not brought on record. The factum of recording dying declaration by P.W.17 had been corroborated by P.W.18. Therefore, it is his contention that the act of the Investigating Officer amounts to deliberate suppression of the material fact and also the material evidence, as well as not placing the same before the Court for consideration of the case in a holistic manner and on that score itself, the case of the prosecution has to be discarded as a whole; and secondly, it is the deposition of P.Ws.4 and 5 that the deceased was attacked by A-2 with an axe, at the instigation of other accused and A-1 in particular, whereas as could be seen from the post-mortem certificate of the deceased, under Ex.P-9, there were injuries on the head but they are all either aberrations or lacerations and that interestingly, there was no injury on the back of the head of the deceased. Therefore, it is his contention that the medical evidence also does not support the case of the prosecution. He further contends that as per the evidence of P.Ws.4 and 5, who are said to be the eyewitnesses, A- 1, A-2, A-4, A-6, A-7 and A-20 attacked the deceased and it is further on record that it is A-1, who instigated A-2 to inflict injuries on the deceased. 11. In our considered view the version of P.Ws.4 and 5, from the above statements, are self-contradictory. If really, A-2 inflicted an injury on the back of the head of the deceased, there must have been a corresponding incised wound on the head of the deceased. 12. Some times, of course, if the other part of the axe is used there would be a different kind of injury, but, obviously, it is not the case of the prosecution that the other part of the axe was used. On the other hand, it is the specific case of the prosecution that the deceased was ‘axed’ which should mean in the present context that it is the sharp edged part of the axe that has come into contact with the back part of the head of the deceased. 13. But, as already pointed out, the medical evidence does not support the case of the prosecution. In such a case, the burden would heavily rests on the prosecution and the scope of scrutiny of the evidence of the relevant prosecution witnesses by this Court would and should be more rigorous. That apart, when allegedly more than six accused attacked the deceased, which weapon caused the fatal injury to him is yet another question. 14. Even assuming that the fatal injury had been caused by A-2 only, by axing the deceased, there is no corresponding injury on the head of the deceased, at best, it can be held that A-2 caused some injury to the deceased. But, as already noticed, we do not find any strong material on record nor the evidence of P.Ws.4 and 5 is trustworthy and credible to the hilt to believe the same, in order to record an order of conviction against A- 2. 15. Accordingly, we are of the considered view that suppression of dying declaration of the deceased recorded by P.W.17, which was admitted and corroborated by P.W-18, is fatal to the case of the prosecution. Apart from the other merits, we are of the further view that the other evidence of the prosecution, as reasoned above, is not sufficient to record any conviction against A-2, particularly for an offence under Section 302 IPC. 16. Now, coming to the conviction recorded against A-1, it is to be seen that he was convicted for the offence under Section 324 IPC. for causing injuries on P.Ws.4 and 5. Admittedly, there is no charge against A-1 for causing injuries to P.W-5. 17. Furthermore, it is on record that there was a case and counter-case. It appears that some of the persons belonging to accused party including A-1 and A- 2, received injuries in the said incident. There is absolutely no clarity in this connection. In such a case, it is very difficult for this Court to believe the version of P.Ws.4 and 5 as regards the offence allegedly committed by A-1. Accordingly, the conviction and sentence recorded by the trial Court against A-1 for the offence punishable under Section 324 IPC cannot be sustained. 18. In the result, the Criminal Appeal is allowed, setting aside the impugned judgment, dated 21.09.2007, in Sessions Case No.256 of 2001, passed by the III Additional District and Sessions Judge (Fast Track Court), Nellore, in convicting Accused Nos.1 and 2 for the offences under Sections 324 and 302 IPC, respectively, and accordingly, they are acquitted of the said offences and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. The bail bonds, if any, shall stand cancelled. ______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE RAJA ELANGO 07th April 2010 dr