THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2231 of 2004 DATE: 11-03-2011 Between: Bukka Nagaraju Naik and 5 others .. Appellants And State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad. .. Respondent THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL No. 2231 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the learned I Additional Sessions Judge, Kadapa in Sessions Case No.63 of 2002 on 04.10.2004. The appellants herein were prosecuted for the offences under Sections 143, 147, 148, 302, 324, 323 read with Section 149 of Indian Penal Code, 1860 (for short “IPC”) alleging that Accused No.1 is liable for punishment under Section 302 of IPC; Accused No.2 is liable for punishment under Section 324 IPC, Accused Nos.3 to 6 are liable for punishment under Section 323 IPC and A1 to A6 are liable for punishment under Sections 143, 147, 148 read with Section 149 and 109 IPC. The learned I Additional Sessions Judge, Kadapa has framed the charges under Section 304 Part-II IPC against A1; Sections 304 Part-II IPC read with Section 34 IPC against A2 to A6; Section 324 IPC against A2; Sections 324 read with Section 34 IPC against A1 and A3 to A6; Section 323 IPC against A3 to A6 and Sections 323 read with Section 34 IPC against A1 and A2 along with A3 to A6. All the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined 13 witnesses as P.Ws.1 to 13 and got marked Exs.P-1 to P-7 and in the cross-examination of P.Ws.1 and 5, Ex.D-1 and D-2 were marked at the instance of the accused. The learned I Additional Sessions Judge, Kadapa by taking into consideration of the said oral and documentary evidence, found A1 guilty for the charge under Section 304 Part-I IPC and convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for six months; A2 is found guilty for the offence under Section 324 IPC and convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- in default to undergo simple imprisonment for three months and A3 to A6 are found guilty for the offence under Section 323 read with Section 34 IPC and convicted and sentenced to undergo rigorous imprisonment for six months each and to pay fine of Rs.1,000/- each in default to undergo simple imprisonment for three months each. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offences under Sections 304 Part-II IPC against A1; Section 324 IPC against A2 and Section 323 read with Section 34 IPC against A3 to A6 beyond reasonable doubt? The learned appellants counsel has pleaded that the motive for the offence as alleged by the prosecution is that the deceased purchased a house from P.W.8 for a consideration of Rs.76,000/- in which A2 and A3 also competed with him for purchasing the said property but they could not succeed, as such they bore grudge against deceased and waiting for an opportunity and on 11.06.2001 when the Nagarabomma jatara was going on near Machireddigaripalli an altercation took place between A6 and P.W.3 with regard to performing of pooja to the deity, on that the deceased intervened and tried to pacify A6 and P.W.3. At that time A1 to A5 came there and attacked the deceased due to the previous enemity with A2 and A3, but the prosecution could not be established the same as P.W.1 and P.W.3 have not spoken anything about the quarrel between P.W.3 and A6 in the jatara and P.W.8, who is the vendor of the house property to the deceased, has not spoken anything about the A2 and A3 competing with the deceased for purchasing the property. The next point raised by the learned appellants counsel is that P.Ws. 1 and 2 only spoken about the A1 hitting the deceased with stick and whereas the other witnesses P.Ws.4, 5 and 6 have improved their version by involving A2 to A6 in the said incident and in the jatara there was a big crowd and it is not possible to identify as to who causing injuries to the deceased and, therefore, the accused are entitled to the benefit of doubt. The next point raised by the learned appellants counsel is that the charge framed under Section 304 Part-II of IPC against A1 but he was convicted under Section 304 Part-I of IPC without giving an opportunity with regard to alteration of charge, as such the conviction of A1 for the offence under Section 304 Part-I is liable to be set aside. The learned appellants counsel further pleaded that one of the witnesses spoken that the stick used in the commission of offence by A1 in causing injuries but the learned I Additional Sessions Judge, Kadapa has come to the conclusion that A1 beat the deceased with a stout stick and thereby caused injuries knowing fully well and the injury caused the death of the deceased and the stick which was alleged to have been used by A1 was not recovered by the police. Therefore, the accused are entitled to be acquitted for the above said charges. On the other hand, the learned Public Prosecutor has argued that the motive for the offence was established by the prosecution and the overt acts of all the accused were established by the evidence of P.Ws.3, 4, 5 and 6 and, therefore, the learned I Additional Sessions Judge, Kadapa has rightly come to the conclusion that the prosecution has proved the said offences against all the accused and rightly convicted them and the said conviction does not warrant any interference by this Court. According to the prosecution there was enemity between deceased and A2 since three months with regard to the purchase of house of P.W.8 as A2 and A3 intervened and offered higher price but P.W.8 finally sold to the deceased and in that regard A2 bore grudge against the deceased and on the date of incident i.e. on 11.06.2001 at about 3.00 p.m. when Nagarabomma jatara was going on a quarrel took place between P.W.3 and A6 in connection with the performance of pooja near the deity, the deceased intervened and tried to pacify them. At that time A1 to A5 arrived in support of A6 and picked up a petty quarrel with deceased and A1 picked up a stout stick nearby and beat on the deceased head then he fell down on the ground. A2 picked up another stout stick nearby and beat deceased on his back and caused swelling and A3 to A6 beat the deceased with hands and kicked him and thereafter the deceased was shifted to the hospital in private jeep by P.Ws. 1, 5 and 6 and while undergoing treatment he died on the next day. Therefore, according to the prosecution, the motive for the commission of offence is with regard to A2 and A3 competing the deceased for purchase of house by the deceased from P.W.8. But P.W.1 has stated that a dispute between accused and her husband in respect of house purchased by her husband for Rs.76,000/- and P.W.2 also stated that as there was enemity between the accused and the deceased with regard to the purchase of the house, the incident has taken place. P.Ws.4 and 5, who are the brothers of the deceased and P.W.6, who is nephew of the deceased, had not spoken about the motive for the incident. P.W.7, who is a second wife of the deceased also had not spoken anything about the motive for the accused to cause the death of the deceased. The person, who has sold the property to the deceased, was examined as P.W.8, who is Mude Ramana Naik and he has only stated about the selling the house to the deceased but he did not state about the A2 and A3 competing the deceased for purchasing the said property and in that regard there is a rivalry between them. Therefore, the prosecution could not establish with regard to A2 and A3 bearing grudge against the deceased in purchasing the property from P.W.8 coming in competition with them. The next aspect is that at the Jatara as P.W.3 and A6 are quarreling, the deceased intervened and A1 to A5 came there and beat the deceased. P.W.1, who is the wife of the deceased, has not spoken about the deceased involving in the quarrel between P.W.3 and A6 and on the contrary, in the cross-examination she has admitted that she has not stated before the police as per Ex.D1 to the effect that a quarrel took place between A6 and L.W.3 Gopi Naik in offering their animals to the deity first. P.W.3 Gopi Naik also did not speak anything about the quarrel between him and A6 and according to him, somebody from the mob hit the deceased resulting bleeding injuries. Therefore, the occurrence of the incident while the deceased interfering in the quarrel between A6 and P.W.3 was also not established by the prosecution. Moreover it is the case of the deceased himself as per Ex.P-7 that when he tried to pacify the dispute between A6 and P.W.3 the other accused attacked him but the same has not been established by the prosecution. With regard to the individual overt acts of the accused, P.W.1, who is the wife of the deceased, has stated that A1 only beat the deceased and other accused did not beat her husband and P.W.2 also stated that A1 only beat the deceased with a stick on the head and he did not say about the involvement of other accused; and P.W.4, who is the brother of the deceased, who was away from the crowd in view of the heavy rush in the jatara, has stated that A1 beat the deceased with a stick and A2 and A3 beat the deceased with sticks and even though A4 and A6 were present there they did not participate in the said incident. P.W.5, brother of the deceased and P.W.6, nephew of the deceased, have stated about all the accused attacking on the deceased. Therefore, from the above evidence, there is no consistency between the evidence of P.Ws.1 and 2; and 4, 5 and 6 with regard to the overt acts of the accused. Moreover, P.W.3 who was said to be present at the time of the incident, has specifically stated that somebody from the mob hit the deceased and who received bleeding injury and he cannot say as to who beat the deceased. P.W.7, who is the second wife of the deceased even though stated with regard to all the accused beating her husband but in the cross- examination she has stated that she was at home on the date of incident as she was ill and the deceased was brought with injuries in a jeep and thereafter he was taken to treatment. Therefore, P.W.7 has also not spoken anything about the overt acts of the accused. Even the statement given by P.W.7 to P.W.13, which led to the registration of FIR, also could not establish the prosecution case in view of the above said discussion. But the learned I Additional Sessions Judge, Kadapa only basing upon the individual overt acts attributed against all the accused by P.Ws.1, 4 to 6 and without establishing any motive for causing head injuries come to the conclusion that the prosecution established offences against all the accused. In view of the above said findings, I hold that the prosecution failed to establish the charge under Section 304 Part-I IPC against A1; Section 324 IPC against A2 and Section 323 read with 34 IPC against A3 to A6. Therefore, the said findings are liable to be set aside. In the result, the appeal is allowed and the conviction and sentence passed by the I Additional Sessions Judge, Kadapa in S.C.No.63 of 2002 dated 04.10.2004 is hereby set aside and all the accused are acquitted. ___________________ P.DURGA PRASAD, J 11-03-2011 MR THE HON’BLE SRI JUSTICE P.DURGA PRASAD Crl.A.No. 2231 of 2004 DATE: 11-03-2011 MR