IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 480 of 2010 CRIMINAL APPEAL No. 1140 of 2004 Between: CRL.A.No. 480 of 2010 The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad … Appellant V/s. Pasupuleti Subbarao @ Nancharayya & 11-Ors. … Respondents Counsel for the appellant : Addl.Public Prosecutor Counsel for the Respondents : Sri T.Pradyumnakumar Reddy CRL.A.No. 1140 of 2004. Between: Pasupuleti Subba Rao @ Nancharaiah & 4-Ors. … Appellants V/s. The State of Andhra Pradesh Represented by its Public Prosecutor High Court of Andhra Pradesh Hyderabad. … Respondent- Complnt. Counsel for the appellant : Sri T.Pradyumnakumar Reddy Counsel for the respondent : Addl.Public Prosecutor The Court made the following Judgment: Common Judgment follows from 2nd page THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 480 of 2010 AND CRIMINAL APPEAL No. 1140 of 2004 COMMON JUDGMENT : As common questions of fact and law are involved in these criminal appeals, they are clubbed, heard together and are being disposed of by this common judgment. 2. Crl.A.No. 480 of 2010 has been filed by the State and Crl.A.No.l 1140 of 2004 has been filed by the accused. These two criminal appeals arise out of judgment dated 22-06-2004 passed in SC.No. 24 of 2001 by the I-Additional Sessions Judge-cum-Special Judge for SC and STs (Prevention of Atrocities) Act, Krishna at Machilipatnam, whereby and whereunder A-1, A-2, A-5 and A-7 were found guilty of the offence under section 307 IPC and they were convicted under section 235 (2) Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of six years and also to pay a fine of Rs.1000/- each in default to suffer simple imprisonment for three months for the said offence. Whereas A-5, A-6 and A-7 were found guilty of the offence under section 324 IPC and they were convicted under section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of two years each and also to pay a fine of Rs.1000/- each in default to suffer imprisonment for three months each. Further A-4, A-9, A-11 were found not guilty of the offence under section 307 IPC and they were acquitted under section 235 (1) Cr.P.C. Whereas A-3, A-6, A-10 and A-12 were not found guilty of the offence under section 307 r/w section 149 IPC and they were acquitted under section 235 (1) Cr.P.C. A-1 to A-4, A-9 toA-12 were not found guilty of the offence under section 307 r/w 149 IPC and they were acquitted under section 235 (1) Cr.P.C. Further A-1 to A-7 and A-9 to A-12 were found not guilty of the offence under section 147, 148 IPC and section 3 (1) (x) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and they were acquitted under section 235 (1) Cr.P.C. 2. The case of the prosecution as disclose from the judgment of the trial court is summarized as hereunder: The Sub-Divisional Police Officer, Avanigadda laid charge sheet against A-1 to A-12 in cr.No.122 of 2000 of Challapalli Police Station for the offence under section 147, 148, 307 r/w 149 IPC and section 3(1) (x) of SC and ST (Prevention of Atrocities) Act on the following allegations in brief: On 24-12-2009 at about 09:00 p.m. A-5 talked vulgarly about the ladies of Challapalligudem near the Cinema Hall Centre at Ramanagaram. One Choragudi Yohan who was present at the time raised objection and on that A-5 and Choragudi Yohan quarreled and tried to beat each other. Gurivindapalli Ravi and Kokkiligadda David intervened and separated them. Choragudi Yohan, Gurivindapalli Ravi and Kokkiligadda David returned to Challapalligudem. Thereafter, Yohan took the assistance of Kokkiligadda Yesudas, Konaventi Kottaiah, Choregudi Subba Rao and others went to Ramanagaram Cinema Hall Centre and Yohan picked up quarrel with A-5. At that time, A-9 intervened and tried to pacify the situation for which Choragudi Yohan and his friends Kottaiah, Yesudas, Ch.Subba Rao and others beat A-9 son of Maneswara Rao, on his head and legs and escaped from the spot. This is the subject matter of crime No. l121 of l200 of Challapalli Police Station. Then A-9 gathered A-1 to A-8 and A-10 to A-12 and proceeded to Challapalligudem to wreck vengeance against dalits. On 24-12-2000 night at about 09:00 p.m. Kandila Jagapathi Rao PW-1 went to church from Gudem and there was no gathering nearby the church. PW-1 proceeded to canal for answering calls of nature and Kokkiligadda Raja Rao PW-2 joined PW-1 near the church and they both proceeding to the canal. When they reached near the telephone exchange, all the accused formed themselves into unlawful assembly attacked PWs 1 and 2 with knives, iron rods, declaring to kill Madiga people by hacking./ On seeing the accused, PWs 1 and 2 tried to go inside the telephone exchange but PW-1 slipped near the main gate. The accused caught hold of PW-1 and A- 1 hacked PW-1 on his left forearm with a knife, A-2 hacked PW-1 on the right side of neck, and index finger with a knife, A-4 beat PW-1 with an iron rod on his right wrist, A-5 beat PW-1 with an iron rod on his head, A-7 beat PW-1 with a stick on his left leg, A-9 beat him with a stick on his left shoulder, A-11 beat him with a stick on his right shoulder, A-3, A-6, A-8, A-10 and A-12 instigated to attack PWs 1 and 2. PW-2 while escaping entered into the office premises and there A- 5, A-6, A-9, A-1 A-7 and A-8 caught hold of him and beat him indiscriminately with knives and sticks and iron rods. A-6 beat PW-2 with a knife on his collarbone and on left upper arm. Before attacking PWs 1 and 2, the accused attacked Kokkiligadda Ramna Murthy PW- 3 at the culvert which is situated near telecommunications office and beat him with iron rod on his left hand forearm, right shoulder and left thigh while he was returning after answering calls of nature as he is resident of Challapalligudem. Kokilligadda Radha noticed PW-1 with injuries on the main road near the church and informed the matter to the wife of PW-1. The wife of PW-1 Jayamma rushed to the main road and found PW-1 with injuries and shifted PW-1 to Government Headquarters Hospital, Machililpatnam for treatment. On 25-12-2000 at 0700 hours the Station House Officer, Challapalli Police Station received hospital intimation along with the statement of PW-1which was recorded by the Head constable Outpost Police Station Government Headquarters Hospital, Machilipatnam and Station House Officer, Challapalli registered the same as FIR in Cr.No. 122 of 2000 under sections 147, 148, 307, 323 r/w 149 IPC and section 3 (1) (x) of SC and ST (Prevention of Atrocities) Act of Challapalli Police Station. The Sub-Divisional Police Officer, Avanigadda after receipt of FIR copy, took up investigation, visited the Government Headquarters Hospital, Machilipatnam recorded the statement of Kandila Jagapathi Rao PW- 1 and Kandela Jayamma and visited the scene of offence in the presence of mediators and got prepared observation report of the scene of offence and seized blood stained cement pieces and its controlled cement pieces and hair in the presence of mediators and also prepared rough sketch of the scene of offence. He examined Kokkiligadda Ramamurthy PW-3, Gurivindapalli Ravi PW-4, Kokkiligadda David, Kadali Radha, Potharlanka Somaiah and Pindi Lakshmi and recorded their statements. On 26-12-2000 he examined Kokkiligadda Raja Rao PW-2 and recorded their statements. The Sub-Inspector of Police, Challapalli Police Station arrested A-1, A-2, A-3, A-6, A-7, A-9 and A-12 on 30-12-2000. The accused made confession before the mediators and the same was reduced into writing. The accused lead the mediators and the Investigation Officer to the irrigation canal bund, Challapalli and intimated that the weapons were thrown there after the commission of offence. The accused identified the weapons, which were used in the commission of offence, and the same were seized at the instance of the accused. Later the accused were sent for remand. On 06-1-2001, A-4, A-5, A-10 and A-11 were arrested by the Sub-Inspector of Police, PW-12 as per the instructions of the Sub-Divisional Police Officer, Avanigadda and the arrested accused confessed before the mediators which were reduced into writing. Later the accused lead the mediators and the police to the place where they secreted the weapons which were used in the commission of offence. A-5 picked up two iron rods, one stick and the weapons were seized under the cover of mediators report and the accused were sent for remand. After receipt of wound certificates and on completion of investigation, charge sheet was filed against the accused before the Judicial Magistrate of First Class, Avanigadda. 3. The case was taken on file under sections 147, 148, 307 r/w 149 IPC and under section 3 (1) (x) of SC and ST (Prevention of Atrocities) Act, 1989 by the Additional Judicial Magistrate of First Class, Avanigadda and as the offence relating to SC/ST (POA) Act is exclusively triable by the Special Court, the learned Magistrate committed the case to the Special Court for disposal according to law and the same is registered as SC.No. 24 of 2001. 4. On appearance of all the accused before the Special Court, the learned Additional Public Prosecutor and the counsel for the accused were heard in respect of charges. Charges under section 147, 148 IPC and under section 3(1) (x) of SC and ST (POA) Act, 1989 have been framed against A-1 to A-7 and A-9 to A-12, under section 307 iPC against A-1, A-2, A-4, A-5, A-7, A-9 and A-12, under section 307 iPC against A-5, A-6 and A-7 under section 307 read with section 149 IPC against A-3, A-6, A-10 and A-10 and under section 307 r/w 149 IPC against A-1 to A-4, A-9 to A-12 have been framed, read over and explained to them in Telugu. All the accused pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined PWs 1 to 13 and marked Exs.P-1 to P-21 besides MOs 1 to 11. On behalf of the accused no oral evidence was adduced but marked Exs.D1 to D5, admissible portion in 161 Cr.P.C. statements of PWs 1, 3 and 4 were marked. 6. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. for the incriminating evidence appearing against them. All the accused denied the incriminating material levelled against them and reported that they have no defence witnesses. 7. After hearing both sides and on appreciation of the oral and documentary evidence placed on record, the learned I- Addl.Sessions Judge, Krishna at Machilipatnam, passed judgment dated 22-06-2004 passed in SC.No. 24 of 2001 whereby and whereunder A-1, A-2, A-5 and A-7 were found guilty of the offence under section 307 IPC and they were convicted under section 235 (2) Cr.P.C and sentenced to undergo Rigorous Imprisonment for a period of six years and also to pay a fine of Rs.1000/- each in default to suffer simple imprisonment for three months for the said offence. Whereas A-5, A-6 and A-7 were found guilty of the offence under section 324 IPC and they were convicted under section 235 (2) Cr.P.C. and sentenced to undergo Rigorous Imprisonment for a period of two years each and also to pay a fine of Rs.1000/- each in default to suffer imprisonment for three months each. Further A-4, A-9, A-11 were found not guilty of the offence under section 307 IPC and they were acquitted under section 235 (1) Cr.P.C. Whereas A-3, A-6, A-10 and A-12 were not found guilty of the offence under section 307 r/w section 149 IPC and they were acquitted under section 235 (1) Cr.P.C. A-1 to A-4, A-9 toA-12 were not found guilty of the offence under section 307 r/w 149 IPC and they were acquitted under section 235 (1) Cr.P.C. Further A-1 to A-7 and A-9 to A-12 were found not guilty of the offence under section 147, 148 IPC and section 3 (1) (x) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 and they were acquitted under section 235 (1) Cr.P.C. 8. Aggrieved by the same, Crl.A.No. 480 of 2010 has been filed by the State and Crl.A.No.l 1140 of 2004 has been filed by the accused. 9. Heard Sri T. Pradyumnakumar Reddy, the learned counsel appearing for the appellants in both the appeals and the learned Additional Public Prosecutor representing the State. Perused the impugned judgment and the material available on record. 10. A reading of the evidence does not disclose any offence under section 307 iPC even the accused are intended to cause injuries. In the absence of the same, this Court is of the view that offence falls under section 326 IPC but not under section 307 IPC. Accordingly, A-1, A-2, A-5, A-7 are convicted for the offence under section 326 IPC and the sentence is modified and reduced to the sentence of imprisonment already undergone by them and the appellants-accused are directed to pay fine of Rs.10,000/- each on or before 30-03-2010 apart from the fine which they already paid in the trial court, in default the appellants-accused shall suffer simple imprisonment for three months. On such payment, the trial court is directed to disburse the amount accumulated out of fine to PW-1 (injured). As far as the appellant A-6 is concerned, the conviction for the offence under section 324 IPC is confirmed and the sentence against him is modified and reduced to the sentence of imprisonment already undergone by him and the fine amount paid by him is not interfered with. 11. With the above modification in the sentence, Criminal Appeal No.1140 of 2004 is disposed of. As far as, Criminal Appeal No. 480 of 2010 filed by the State, this Court is of the view that there is no need to interfere with the findings recorded by the learned I- Additional Sessions Judge, Krishna at Machilipatnam and the same is hereby confirmed and Crl.A.No.480 of 2010 is dismissed. ______________________ JUSTICE RAJA ELANGO 15-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 480 OF 2010 AND CRIMINAL APPEAL No. 1140 OF 2004 {COMMON JUDGMENT} CIRCULATION NO. 30 Date:15-12-2010 Court Master: I s L Computer No. 43