*THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO +Criminal Appeal No.1055 of 2007 % 08-02-2011 # State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of A.P., Hyderabad … Appellant/Petitioner Vs. $ 1. Chinnam Kameswara Rao, S/o.Krishna, Aged: 22 years, 2. Chinnam Venkateswara Rao, S/o.Krishna, Aged: 19 years, 3. Vadde Govardhanachari @ Govardhana Rao, S/o.Danaiah, Aged: 20 years, (All are residents of Bethavolu, Gudivada, Krishna district), 4. Papisetti Praveen, S/o.Syamalaraju, Aged: 18 years, Gudivada, Krishna district. … Respondents/Accused 1 to 4 ! Counsel for the Appellant: Public Prosecutor, High Court of A.P., Hyderabad. Counsel for the Respondents: Sri T.Pradyumna Kumar Reddy < Gist: > Head Note: ? Cases referred: 1. A.I.R. 1988 SUPREME COURT 696 THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Criminal Appeal No.1055 of 2007 Judgment: (per V.Suri Appa Rao, J.) The State represented by the Public Prosecutor filed this criminal appeal against the judgment dated 17-10-2005 in Sessions Case No.211 of 2004 passed by the learned Sessions Judge, Krishna Division at Machilipatnam in acquitting the respondents 1 to 3/accused 1 to 3 for the charges under Sections 302 and 307 of IPC and respondent No.4/accused No.4 for the charges under Sections 302 and 307 read with Section 34 of IPC. 2. The case of prosecution, in brief, is as under: (a) All the accused as well as one Bezawada Srinivasa Rao (hereinafter referred to as ‘the deceased’), P.W.1 – the injured witness and other witnesses -- P.Ws.2, 3 and 6 are residents of Bethavolu of Gudivada Town. Accused 1 and 2 are the brothers and all the accused are close friends. They feel supremacy and behave like rowdies in the area of Bethavolu. They are all desperate in character and accused No.3 is an accused in a theft case in Crime No.74 of 2001 under Section 379 of IPC of Gudivada I Town Police Station. (b) While so, on 26-4-2003 at 2 p.m., the deceased and P.W.1 were bringing palm-nuts from the fields and when they reached park centre, Bethavolu, accused 1 to 4 asked them to give some palm-nuts to them, for which the deceased and P.W.1 refused. On that, an altercation took place and accused 1 to 4 threatened the deceased and P.W.1 and decided to kill them. The accused were waiting for an opportunity. (c) Pursuant to their common intention, on 27-4-2003 at about 7 p.m., accused 1 to 4 way laid in Bethavolu centre (scene of offence) and accused 1 to 3 armed with stout survi sticks and all the accused were waiting for arrival of the deceased and P.W.1. At that time, the deceased and P.W.1 came to the scene of offence and on their way to their houses. On seeing them, the accused came upon the deceased and questioned P.W.1 about their behaviour at the park centre on the previous day and altercated. Meanwhile, P.W.2 intervened and attempted to pacify the situation, but accused No.4 came upon and beat the deceased with hands and accused 1 to 3 attacked the deceased and P.W.1 and beat them with survi sticks indiscriminately on the bodies of the deceased and P.W.1. Accused 1 to 3 beat on the head of the deceased with survi sticks with force, due to which the deceased received serious bleeding injuries. P.W.1 received bleeding injuries on his body. P.Ws.3, 4 and others, who were in the centre, witnessed the offence and rushed to rescue the deceased and P.W.1 from the clutches of the accused. The accused ran away along with their sticks. (d) P.W.2 with the help of L.W.3-P.Vasudeva Rao shifted P.W.1 and the deceased to the Government Hospital, Gudivada for treatment. On 27-4-2003 on receipt of hospital intimation, P.W.9- Station House Officer, Gudivada I Town Police Station reached the Government Hospital and recorded the statement of the deceased Ex.P-6 and registered the same as F.I.R., in Crime No.60 of 2003 under Section 324 read with Section 34 of IPC and investigated into. As the condition of the injured/deceased was serious, he was referred to the University General Hospital, Vijayawada for better treatment. While undergoing treatment on 28-4-2003 at 02:50 hours the deceased died due to the injuries. (e) On receipt of the death intimation, P.W.9 altered the Section of law in the F.I.R., from 324 read with Section 34 of IPC into Section 302 read with Section 34 of IPC and issued altered express F.I.R., Ex.P-10. P.W.12-the Sub Inspector of Police, II Town Police Station, Gudivada, who was the in charge of I Town Police Station, took up investigation on 28-4-2003 and visited the scene of offence in the presence of the mediators P.W.7 and another and seized control earth (tar pieces) and blood-stained earth under a cover of observation report Ex.P-2 on the same day at 11 a.m., and he also held inquest over the dead body of the deceased at the mortuary shed of the Government Hospital, Vijayawada in the presence of panchayatdars and blood-relatives including P.W.7 and prepared inquest report Ex.P- 3. The dead body had been sent to post-mortem examination through the escort Police of Gudivada I Town Police Station and post-mortem was conducted by Dr. M.Seetharamaiah under Ex.P-11. On 01-5-2003 P.W.13-the Inspector of Police, Gudivada took up investigation and arrested accused 1 to 4 in the presence of P.W.8 and another under a cover of seizure panchanama Ex.P-4. P.W.11- Medical Officer, Government Area Hospital, Gudivada examined the deceased and P.W.1 and issued Wound Certificate Ex.P-12 in respect of P.W.1. As Dr. M.Seetharamaiah, who conducted post-mortem report, was retired the said post-mortem report was marked through P.W.10-Dr. Y.S.S.V.V.Prasad, who identified the signature of Dr. M.Seetharamaiah. As per the opinion of the doctor, the deceased died due to head injuries. 3. The trial Court framed charges under Sections 302 and 307 of IPC against accused 1 to 3 and charges under Sections 302 and 307 read with Section 34 of IPC against accused No.4 and the accused pleaded not guilty. 4. In support of its case, the prosecution has examined P.Ws.1 to 13 and marked Exs.P-1 to P-16 and M.Os.1 to 9. 5. Based on the evidence available on record, the learned Sessions Judge found all the accused not guilty and acquitted them under Section 235 (1) of Cr.P.C. 6. Aggrieved by the said judgment, the State has preferred the present appeal. 7. According to the prosecution, on 27-4-2003 at about 7 p.m., the accused way laid at Bethavolu park centre armed with stout survy sticks and waiting for the arrival of the deceased and P.W.1 and when the deceased and P.W.1 came to the scene of offence on their way to the house, the accused questioned P.W.1 about their behaviour on the previous day and attacked the deceased and P.W.1 and beat them with survy sticks indiscriminately. The incident was witnessed by P.Ws.3 and 4 and others. 8. P.W.1, who is the injured witness, deposed that he accompanied the deceased on the previous day as well as on the date of occurrence i.e., on 27-4-2003 at about 7 p.m., that while both of them were proceeding towards Bethavolu park centre from their houses, they noticed accused 1 to 4 at the Reading Room, which is situated by the side of the park. Accused 1 to 3 were armed with casuarina sticks and accused 1 to 4 came to them and accused No.1 beat the deceased with a casuarinas stick on the head and questioned as to what they had uttered on the previous day against them. When P.W.1 intervened, accused No.3 beat him with a casuarina stick on his head and accused No.2 beat P.W.1 with a casuarinas stick on the left side of his forehead. On receipt of head injury at the hands of accused No.1, the deceased fell on the road. Then, accused No.4 beat him with hands and kicked him with legs. On receiving injuries P.W.1 also fell down. Accused 1 to 3 beat P.W.1 and the deceased indiscriminately with casuarina sticks causing bleeding injuries. There was a pool of blood on the road and their clothes were stained with blood. P.Ws.2 to 6 and others witnessed the incident. The accused left the scene of offence saying “chachcharra” and went towards the house of accused No.1 with casuarina sticks. Then, P.W.2 and one P.Vasudeva Rao took P.W.1 and the deceased to the Government Hospital, Gudivada. Police came there and recorded the statement of the deceased. On the same day night, both of them were shifted to the University General Hospital, Vijayawada for further treatment. The deceased died in the early hours of 28-4-2003. 9. P.W.1 further deposed that one day prior to the incident i.e., on 26-4-2003 at about 2 p.m., when he and the deceased were bringing palm nuts from the fields, they found accused 1 to 4 at the pan shop situated opposite to park at Bethavolu and when they reached near Bethavolu park, accused No.1 asked the deceased to give some palm nut but the deceased refused to give. Then, accused No.1 threatened the deceased that he would see his end. At that time, P.W.3, owner of the said pan shop, intervened and pacified the matter and then they left the place. He also identified M.Os.1 to 3 casuarina sticks with which accused 1 to 3 beat them on the date of incident. Police seized his blood-stained shirt and banian, M.Os.4 and 5. He was also examined by the Police. 10. In the cross-examination also, P.W.1 stated that he did not give any report to the Police about the incident occurred on the previous day i.e., on 26-4-2003 as the matter was pacified. He denied the suggestion that himself and the deceased were vagabonds roaming on the streets teasing the ladies and used to quarrel with everybody in the village. He denied the suggestion that the Police did not register a case against him and the deceased because of the influence made by the brother of deceased, P.W.5. He stated that the distance between his house and the scene of offence is about half kilometre and there was no special reason for him and the deceased to go to Bethavolu Park on the date of incident. The park will be opened from 5 p.m. to 9 p.m. and there are about 15 to 20 people in the park on that day. There are also 30 people on the road outside the park belong to Bethavolu. They saw the accused at the Reading Room from a distance of about 20 to 25 yards. The accused were not armed with casuarinas sticks and they were sitting by the side of the Reading Room when they first saw them. Then, the accused went to the back side of the Reading Room and brought casuarina sticks. But, he denied the suggestion that he has not stated so before the Police. He further denied the suggestion that the deceased was unconscious when he was brought to the hospital and that he did not give any statement to the Police. He also stated that the incident was occurred on the previous day is true. He specifically stated that he saw the accused with the aid of street-lights on the road. 11. P.W.2, who witnessed the incident that occurred on 26-4-2003 and pacified the altercation between both the accused and the deceased, has stated that the accused threatened the deceased with dire-consequences. He also stated that P.W.4 intervened and pacified the matter. He further stated that P.W.3 intervened and pacified the matter. His shop is at a distance of 10 to 15 yards from the park and the distance between his shop and the pan shop of P.W.3 is about 20 yards. On the next day i.e., on 27-4-2003 at about 7 p.m., accused 1 to 4 were sitting at the park. At the same time, the deceased and P.W.1 were coming towards the park from High School road. The accused came from behind the Reading Room with casuarinas sticks and accused No.1 beat the deceased on his head with a casuarina stick and in the meanwhile P.W.1 intervened, then accused No.3 beat P.W.1 with a casuarina stick on his head and accused No.2 beat P.W.1 on his forehead and back with a casuarina stick. P.W.1 and the deceased sustained bleeding injuries and fell on the road in a pool of blood. P.Ws.3 to 6 and others witnessed the incident. The accused saying that P.W.1 and the deceased died went towards the house of accused No.1 with casuarina sticks. At that time, shop lights and the street lights were burning. He and L.W.3- Vasudeva Rao took the injured/deceased and P.W.1 to the Government Hospital, Gudivada in a rickshaw and from there they were shifted to the University General Hospital, Vijayawada. He also accompanied them to Vijayawada hospital where the deceased succumbed to the injuries on the early hours of 28-4-2003. He identified the sticks M.Os.1 to 3, which were used by the accused 1 to 3 in the commission of the offence. The injured was unconscious and was talking till he was taken to Vijayawada hospital. 12. In the cross-examination, P.W.2 admitted that he and P.Ws.3 and 4 belong to the same community and he has no acquaintance with P.W.6 and he has not related to the deceased. He is running a cool drinks shop and S.T.D. booth at Bethavolu centre. He witnessed only the incident took place on 26-4-2003, which was pacified by P.W.3. The actual scene of offence is at a distance of 10 to 15 yards from his shop. Since half an hour prior to the incident he has seen the accused in the Reading Room. He further stated that there is an electrical pole at a distance of 2 yards from his shop. The whole incident was completed within 10 to 15 minutes. He was in front of his shop during the course of the incident. While he was proceeding to the place of incident immediately after beating was completed, 25 to 30 people gathered there around the scene of offence after the incident. He does not know the name of the rickshaw-puller, and he and one P.Vasudeva Rao (L.W.3) shifted the deceased and P.W.1 in the rickshaw. He also stated before the Police that he has accompanied the deceased and P.W.1 to the Government Hospital, Gudivada and from there to Vijayawada hospital. 13. P.W.3 is also an eyewitness to the incident. He is running a pan shop at Bethavolu park centre. He stated that he knows the deceased and P.W.1 since one year prior to the date of incident and there were misunderstandings between the accused and the deceased. The accused move like rowdies in Bethavolu. The Police filed a theft case against accused No.3. The accused suspected that the deceased passed on information to the Police in the said crime. Since then, there were differences between the accused and the deceased. On 26-4-2003 at 1 p.m., while he was at his shop, all the accused were at his shop and at the same time, the deceased and P.W.1 were going towards their houses with palm-nuts. Then, accused No.1 asked the deceased to give some palm-nuts, for which the deceased declined. Then, accused No.1 picked up a quarrel with the deceased and P.W.3 intervened and pacified the matter. 14. P.W.3 further deposed that on the next day i.e., on 27-4-2003 at about 6.30 or 7 p.m., when he was in his shop, the deceased and P.W.1 were going towards the Reading Room from their houses. Then, accused 1 to 4 attacked them at the park. Accused No.1 beat the deceased with a casuarina stick on his head. Then P.W.1 intervened. Accused 2 and 3 beat P.W.1 with casuarina sticks on his forehead and back. On receipt of the bleeding injuries, both the deceased and P.W.1 fell on the road. Then all the accused left the place saying “chachcharra” and went towards the house of accused No.1. P.Ws.2 and 4 and several others witnessed the incident. There are street-lights and lights in the shop and in the lighting he witnessed the incident. After the incident he, P.W.2 and one P.Vasudeva Rao (L.W.3) sent the injured to the Government Hospital, Gudivada in a rickshaw. After he closed his shop, he went to the Government Hospital, Gudivada to see the injured. He also talked with the deceased at the hospital and thereafter the deceased was shifted to the Government Hospital, Vijayawada. He also identified the sticks with which the accused beat the deceased and P.W.1 as M.Os.1 to 3. 15. In the cross-examination, he has stated that he was examined by the Police at the Government Hospital, Gudivada on the date of incident also. There are street-lights at the shop of P.W.2 on the road leading to Sravanamvari Street. At the time of incident he was transacting the business. He stated that no body intervened and tried to separate P.W.1 and the deceased at the time of the incident. The incident completed within 5 minutes. By the time he reached the actual scene of offence from his shop, the accused ran away. No body tried to catch the accused. He had seen the accused sitting on a cement bench at Reading Room since 15 minutes prior to the incident. He did not observe any weapons in their hands at that time and he did not raise any cries when the accused were picking up the sticks and coming towards the deceased and P.W.1. The passers-by also did not intervene when the accused were beating the deceased and P.W.1. He did not inform the Police about the incident from the telephone booth of P.W.2. For about one hour he continued his business after the incident and later he closed his shop. He only lifted the deceased to the rickshaw but his clothes were not stained with blood of the deceased. 16. P.W.5, who is the brother of the deceased, stated that the deceased informed him about the incident occurred on 26-4-2003 and while he was working in his office, his father came and informed him that the accused beat the deceased and that the deceased was taken to the Government Hospital, Gudivada. Then he along with his father went to Gudivada hospital, where the deceased and P.W.1 were admitted. When he asked the deceased as to what happened, he informed him that on that day at about 7 p.m., while P.W.1 and the deceased were coming towards the park centre, all the accused attacked and beat them with casuarina sticks. On the same day night, the deceased and P.W.1 were shifted to the Government Hospital, Vijayawada. On the next day i.e., early hours of 28-4-2003 the deceased died. He stated that he was in Vijayawada hospital at the time of holding of inquest and also at the time of post- mortem examination. 17. P.W.6 is another eyewitness who is running a taxi of his own at Gudivada and he knows the accused and the deceased. He stated that on the day of incident i.e. 27-4-2003 at 6.30 p.m., he was sitting in the shop of P.W.2. He went to the shop of P.W.2 to talk about engagement of his car by one person known to P.W.2. While he was talking with P.W.2, at 7 p.m., he heard cries from a distance of 7 to 10 yards and saw accused No.1 beating the deceased with a casuarina stick on his front and then P.W.1 intervened to rescue the deceased. Accused 2 and 3 beat him with casuarina sticks. P.W.1 and the deceased fell on the road and the accused beat them indiscriminately and later they went along burial ground road. The deceased and P.W.1 were lying in a pool of blood. Himself, P.W.2 and one P.Vasudeva Rao (L.W.3) rushed to the place of incident and sent the injured to the Government Hospital, Gudivada in a rickshaw. The deceased was talking by the time he was taken to the Government Hospital, Gudivada. He did not go to the hospital. But in the morning he went to Vijayawada hospital and he came to know that the injured Srinivasa Rao died. He identified the casuarina sticks, which were used by the accused to beat P.W.1 and the deceased i.e., M.Os.1 to 3. 18. In the cross-examination, P.W.6 has stated that on the date of incident he was at Bethavolu park centre for about 15 minutes after the incident and at the time of the incident, there were 3 or 4 customers in the shop of P.W.2. He first saw the accused beating P.W.1 and after he went to the spot he saw the blood. 19. P.W.7 is a panch during inquest over the dead body of the deceased and attested Ex.P-3 inquest report. 20. P.W.8 is acted as a mediator at the time of seizure of M.Os.1 to 3 from the house of accused No.1 produced by accused 1 to 3 as per their confession statements and Ex.P-4 is the mediators’ report for the arrest of accused 1 to 4 and for the seizure of M.Os.1 to 3. 21. P.W.9, who is the Assistant Sub Inspector, stated that immediately after receiving intimation from the Government Hospital, Gudivada, on 27-4-2003 at 8.10 p.m., with regard to the admission of the injured and P.W.1, he rushed to the Government Hospital, Gudivada and found P.W.1 and the deceased in the Ward. He recorded the statement of the injured. Ex.P-6 is the statement of the injured recorded by him. After read over the contents of Ex.P-6 to the injured he obtained the thumb impression of the deceased on Ex.P-6 as he is unable to sign. The injured was conscious and mentally fit to give the statement. The Medical Officer also certified that the injured was conscious and coherent throughout when he recorded Ex.P-6 statement and Ex.P-7 is the endorsement of the Medical Officer on Ex.P-6 certifying that the injured was conscious and coherent throughout at the time of giving statement. Basing on Ex.P-6 statement he registered a case in Crime No.60 of 2003 under Section 324 read with Section 34 of IPC and issued Ex.P-8 FIR and sent Ex.P-8 FIR to the Judicial Magistrate of I Class, Gudivada. Again he went to the Government Hospital, Gudivada and recorded the statements of the injured, P.W.1 and L.W.3-P.Vasudeva Rao. The in charge Sub Inspector of Police was informed about the registration of the case. On the same day night the injured was referred to the Government Hospital, Vijayawada for better treatment. On 28-4-2003 at 7 a.m., he received the death intimation of the deceased. Ex.P-9 is the intimation from the Government Hospital, Vijayawada. He altered the Section of law from 324 read with Section 34 of IPC to Section 302 read with Section 34 of IPC. Ex.P-10 is the altered FIR and he sent altered FIR Ex.P-10 to the Court and to all the concerned. 22. In the cross-examination, P.W.9 admitted that the name of accused No.4 is not find place in Ex.P-6. He denied the suggestion that he has not recorded Ex.P-6 statement of the injured at the hospital and that the same was prepared at the hospital. He stated that he did not take any steps to get the statement of the injured recorded by the Magistrate at Gudivada hospital between 9 a.m. and 12 midnight. He stated that the injured was conscious when he went to the hospital and recorded Ex.P-6 statement and he does not know whether the brother of the deceased is a reporter of ‘Andhra Bhoomi’ at Gudivada. The suggestion that he has fabricated and obtained thumb impression of the injured was denied. He entrusted the FIR to a Police Constable to deliver the same to the Judicial Magistrate of I Class but he cannot say any reason for the delay of 8 hours in handing over the FIR to the Judicial Magistrate of I Class. 23. P.W.10 Assistant Professor, Siddhartha Medical College, Vijayawada identified the handwriting and signature of Dr. M.Seetharamaiah, who conducted post-mortem on