* HON’BLE SRI JUSTICE D.S.R.VARMA AND *HON’BLE SRI JUSTICE R.KANTHA RAO + CRL.A.NO.241 OF 2008 % Date:25-09-2009 Between: # Adapa Gangadhara Rama Rao @ Gangadhar and two others …Appellants and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Sri K.Suresh Reddy ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: [1] 2000 SCC (Cri) 285 THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 241 of 2008 Between: Adapa Gangadhara Rama Rao @ Gangadhar and two others …Appellants And The State of A.P. rep. By Public Prosecutor …Respondent THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 241 of 2008 JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao,J) This appeal is directed against the judgment, dated 20.02.2008 passed by the I Additional Sessions Judge, East Godavari at Rajahmundry (Designated Court to try the offences under the Schedules Castes and Scheduled Tribes, Prevention of Atrocities Act, 1989) in SC ST S.C.No.68 of 2005. 2. The appellants were tried by the learned Additional Sessions Judge for the charges under Sections 302 read with 34 IPC, 326 read with 34 IPC and also for the offence under Section 3(ii)(v) of SC and ST (POA) Act, 1989 and at the termination of the trial, the appellants were acquitted of the offence under Section 3(ii)(v) of SC and ST (POA) Act, 1989, but were convicted for the offences under Section 302 r/w 34 IPC and also under Section 325 r/w 34 IPC. They were sentenced to undergo imprisonment for life and also to pay fine of Rs.1,000/- each for the offence under Section 302 r/w 34 IPC and further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- for the offence under Section 325 r/w 34 IPC. 3. Challenging the said order of conviction and sentence, the appellants preferred the present appeal. 4. Briefly stated, the prosecution case is, like this: The appellants are the sons of Adapa Suryanarayana and they are residents of Meraka Chamavaram village. In the year 1986 the father of the appellants effected partition of Ac.80.00 of land and the appellants got Ac.20.00 each under the partition while the remaining Ac.20.00 fell to the share of their father. The father of the appellants gave Ac.10.00 of land to the married daughter by name Kanda Mangayamma. Some time prior to the incident, it is said that the father of the appellants insisted on them to give Ac.5.00 each to their sister Mangayamma for which the appellants refused. Further, the appellants also demanded their father to part with the remaining land. Thus, disputes arose between the appellants, their father, and their sister in regard to the partition of the property and the said disputes were placed before the elders, but they could not be settled by the elders. 5. As a last resort, the father of the appellants solicited their interference in the matter and to settle the dispute. PWs.1 to 4 and the deceased who are the members of CPI (ML) group promised the father of the appellants to dispossess them from their respective lands and hand over the possession of the land to their sister Mangayamma for which the father of the appellants and their sister agreed to part with some land and give it to PWs.1 to 4, the deceased and other members of CPI (ML) group. On 12.12.2000 at 11.00 a.m. as per the agreement, PWs.1 to 4, the deceased and other party workers had a discussion about the issue and decided to dispossess the appellants from their respective lands, formed themselves into unlawful assembly with the above said object and to obtain the lands on lease from Mangayamma, proceeded to the paddy field of A-3 in Sy.No.260 of Meraka Chamavaram village at about 1.30 p.m. arming with sickles, knives and sticks, they trespassed into the land of the appellants by which time the appellants were clearing the bushes on the bunds of the land. Adapa Suryanarayana, the father of the appellants and Mangayamma, their sister and her husband Atchuta Ramaiah were also present there to watch the situation. 6. When the deceased, PWs.1 to 4 and others demanded the appellants to surrender the possession of the land, the appellants refused and stated that they wanted to settle the matter in the civil Court. Thereafter, they picked up a quarrel with the appellants. When the appellants resisted to vacate the land, the deceased-Bandi Raju who took the lead, hacked A-1 with knife on his head, A-1 in turn hacked the deceased with knife, A-3 beat Rayi Appa Rao (LW-2) with a stick on the wrist, as a result of which he fell down on the ground, the other persons in the mob also beat A-1 to A-3, as a result of which A-1 to A-3 received injuries. The deceased who received injuries succumbed to the injuries while he was being shifted to the Government General Hospital, Kakinada. Thereafter, basing on the report lodged by the wife of the deceased, Bandi Laxmi (LW-1), a case in Crime No.141 of 2000 was registered by PW-11, the Sub-Inspector of Police and the offence was investigated into by PW-13, the Inspector of Police, Annavaram Circle who filed charge sheet after completing investigation. 7. Another case in Crime No.142 of 2000 under Sections 147, 148, 447, 307 r/w 34 of IPC against PW-4 and others was registered basing on the report of A-1. PW-13, Inspector of Police investigated into the Crime No.142 of 2000 and filed charge sheet against PWs.1 to 4 and some others, in all, 30 in number. 8. After both the cases were committed to the Sessions Judge, East Godavari at Rajahmundry, the learned Sessions Judge made over the present case to the I Additional Sessions Judge, East Godavari at Rajahmundry and made over the other case i.e. S.C.No. 516 of 2006 to the Assistant Sessions Judge, Peddapuram. The I Additional Sessions Judge rendered the impugned judgment, convicting the appellants, whereas the Assistant Sessions Judge, Peddapuram who tried PWs.1 to 4 and others as accused in S.C.No.516 of 2006 acquitted all of them, against which the State did not prefer any appeal. 9. The prosecution in order to prove the case against the appellants before the I Additional Sessions Judge, East Godavari at Rajahmundry in SC ST S.C.No.68 of 2005 examined PWs.1 to 15, marked Exs.P-1 to P-11 and M.Os.1 and 2. The appellants examined DWs.1 to 3 and marked Exs.D-1 to D-27. The appellants also apart from filing the written statement while they were examined under Section 313 Cr.P.C., filed charge sheet in S.C.No.516 of 2006 on the file of the Assistant Sessions Judge, Peddapuram. The learned I Additional Sessions Judge upon considering the entire evidence on record, convicted the appellants and sentenced them to punishment as mentioned above. 10. We have heard Sri Balireddy, learned Senior Counsel appearing for the appellants and the learned Public Prosecutor for the State. 11. The point for consideration before us now is whether the conviction and sentence passed by the learned trial Court against the appellants can be sustained. 12. There is no dispute about the fact that the deceased as well as A- 1 to A-3 received injuries in the same incident and during the course of the same transaction, the same has been spoken to by PW-13, the investigating officer. We, therefore, would like to notice the injuries found on the body of the deceased as well as A-1 to A-3 before evaluating the other evidence available on record, having regard to the fact situation from which the incident had arisen. 13. PW-8 Dr.A.V.Ramana who conducted post mortem examination over the body of the deceased, PW-1, A-1 to A-3 and issued Ex.P-5 stated in his evidence that he found following external injuries, which are antemortem in nature: 1. A lacerated injury on posterior aspect of left hand 9 cm x 1 cm in size, bones, tenders and muscles seen through the wound, 3rd, 4th, 5th meta carpal bones fractured of left hand fractured marks of bleeding are present. Edges are clear. 2. A lacerated injury on right parietal part of Head 5 cm x 2 cm in size, scalp deep, bleeding marks present edges regular. 3. A lacerated injury on right shoulder joint on posterior aspect size 5 cm x 1 cm size, depth is 1 cm edges are regular. 4. A lacerated injury on right supra scapular area 11 cm x 2 cm in size, muscle deep edges are clear, bleeding marks are present. 5. A lacerated injury on right infra scapular area below the rib caze 8 cm x 2 cm in size. Depth size is 2 cm bleeding marks present. 6. A cut injury on middle finger of right hand 2 cm x 1 cm in size, bleeding marks present. 7. A lacerated injury on left Infra scapular area at the level of 10th rib 6 cm x 2 cm in size bone deep.” In his opinion the cause of death was due to haemorrhage and shock because of the above mentioned injuries. 14. PW-9 Dr.Nedunuri Veerraju who examined PW-1 (Rayi Apparao) stated in his evidence that he found the following injuries on the body of PW-1: 1. An inverted U shaped cut injury on the back of lower 1/3rd of lower upper arm. Edges are clean cut. Size of the wound 4 inches x 1 ½ bone deep. Dark red in colour. 2. A contusion injury on the back of the right hand across the meta carpa bones. Size 3 x 2 inches. 3. Fracture of right little finger at the base. 4. The injured was referred to department of Orthopaedic on receiving of X ray opinion from radiologist I opined injuries 1 and 2 are simple in nature and No.3 is grievous in nature. Injury No.1 may be caused by sharp edged weapon. Injuries No.2 and 3 are possible by blunt object. The certificate issued by him is Ex.P.6. 14. Admittedly, A-1 to A-3 who are PWs.1, 2 and 16 in S.C.No.516 of 2006 on the file of the Assistant Sessions Judge, Peddapuram also received the injuries. DW-2 Dr.Y.Venkateshwara Rao examined A-1 (Adapa Gangadhara Rama Rao) on the requisition of police. He also conducted operation and fixed steel rod to the right ulna deposed in his evidence that he noticed the following injuries on the body of A-1. 1. Multiple laceration over skull fresh, meddle present. 2. laceration 4 x 2 cms over right fore arm exposing muscles, tendons and bones. For this injury operation was conducted. 15. DW-2 produced the case sheet pursuant to the summons issued by the learned I Additional Sessions Judge, Rajahmundry and the case sheet is marked as Ex.D-7. 16. The gist of the evidence of PWs.1 to 4 is that the deceased, his wife, PWs.1 to 4 and Lws.3, 4, 6, and 8 to 15 are the members of CPI (ML) liberation party and PW-4 is their leader. One Deyyala Somaraju (LW-10) who died pending trial before the Court below took a piece of land on lease from Kanda Mangayamma who is the sister of PWs.1 to 3 and he cultivated the land for a period of two years. Subsequently, on the commencement of the third year, the appellants obstructed LW-10 D.Somaraju for cultivating the land stating that the land belongs to them. It is also the evidence of PWs.1 to 4 that LW-10 complained the matter to PW-4 and the party people convened a meeting in that regard and about 100 people summoned Mangayamma and her husband to the panchayat office, ascertained that Mangayamma leased out the land for a period of three years to LW-10 and that the appellants had no right to interfere with the possession of LW-10. After ascertaining from Mangayamma and her husband about the existence of lease in favour of LW-10, they and their party men numbering about 100 armed with sticks, knives and other deadly weapons proceeded to the land of Mangayamma on 12.12.2000, they found the appellants clearing the bushes with the help of knives. Their evidence further discloses that Bandi Raju (the deceased) questioned the appellants as to why they were interfering with the possession of Deyyala Somaraju as a cultivating tenant, thereupon the appellants abused him and hacked him with knives, the deceased fell down, when PW-1 interfered, A-1 hacked him and A-3 beat him with a stick. It is also their evidence that Mangayamma and her husband and Adapa Surayanarayana who is no other than the father of the accused were also present at that time. 17. As regards the genesis of occurrence, the entire evidence of PWs.1 to 4 is quite contrary to their statements recorded by the police under Section 161 Cr.P.C. As many as 24 contradictions were marked on behalf of the appellants as Exs.D-1 to D-24 in 161 Cr.P.C. statements of PWs. 1 to 4. All the contradictions are to the effect that “on 12.12.2000 at 11 a.m. the members of CPI (ML) liberation party assembled at the panchayat office under the leadership of PW-4 who is also an M.P.T.C. In the said meeting they decided to take possession of the land belonging to A-1 to A-3, hand over the same to their sister Mangayamma and thereafter they would obtain the lease in the name of one Simhachalam from the said Mangayamma and that they have decided to take possession of the land belonging to the appellants forcibly, after taking the said decision, they about 100 members proceeded to the land of the appellants arming with knives and sticks and found all the three appellants clearing the bushes with the help of men. In the first instance, Bandi Raju (the deceased) demanded the appellants to hand over the possession of the land, on that the appellants replied that the land was in their possession since 1986, they would never surrender possession of the land and the persons who came upon the land can approach the court to take possession of the land if they have any right in the land. Enraged at the words of the appellants, the deceased hacked A-1 with knife, A-2 and A-3 also received injuries in the said incident.” 18. PWs.1 to 3 did not state before PW-13, the Inspector of Police who examined them and also PW-4 did not state before PW-12, the Sub-Divisional Police Officer who examined him under Section 161 Cr.P.C. statement regarding Somaraju complaining about Mangayamma, the sister of appellants leasing out her land for a period of three years and that he was cultivating the land as a tenant, he, PWs.1 to 3 and other members of their group proceeding to the land of Mangayamma which was said to be under the cultivation of Somaraju and the incident taking place in the land of Mangayamma and also that A-1 hacking the deceased in the first instance with knife etc. facts which constitute material omissions. 19. Exs.D-1 to D-24 contradictions and the above mentioned omissions have been duly proved by the defence through PWs.12 and 13, the investigating officers. 20. Thus, obviously the entire initial version of the prosecution was given a go bye by the witnesses when they were examined before the learned trial Court and the scene of offence has been shifted from the land of the appellants to the land of their sister Mangayamma which was said to be under cultivation of D.Somaraju. The version of PWs.1 to 4 in their police statements leaves no doubt regarding the fact that they proceeded to the land of the appellants after taking a decision to dispossess them forcibly and they in the first instance made an attack on the appellants in the course of which the deceased hacked A-1. Thus, the very case of the prosecution as could be seen from 161 Cr.P.C. statement of PWs.1 to 4 as well as the contents of charge sheet indicates that the prosecution party which belongs to CPI (ML) liberation group are the aggressors. It is also the version of the defence that the prosecution party led by PW-4 attacked the appellants with deadly weapons with a view to take possession of their land forcibly on the instigation of their father Suryanarayana, sister Mangayamma and her husband. Really, in any event, as per the version of prosecution as well as the defence, the persons belonging to the prosecution party went to the land while A-1 to A-3 were carrying out agricultural operations and there is nothing on record to show that the appellants in the first instance provoked the prosecution party. 21. As has been already pointed out, A-1 to A-3 also received injuries during the course of the same incident, and on the report lodged by A-1, a charge sheet has been laid against 30 persons as accused who include PWs.1 to 4 and also the father of the appellants, the sister of the appellants and her husband. A-1 to A-3 in the present case are PWs.1, 2 and 16 in the other case filed on the basis of the report given by A-1 which is S.C.No.516 of 2006 on the file of the Assistant Sessions Judge, Peddapuram. Admittedly, A-1 to A-3 also received injuries and one of the injuries received by A-1 is grievous in nature which is proved through the evidence of DW-2. Further except one cut injury on the body of the deceased, all the other injuries are lacerated injuries, which in the opinion of the doctor could be caused by a blunt weapon. If actually the deceased was hacked by A-1 to A-3 with knives, all the injuries, at least, many of them must be incised or cut injuries could have been found on the body of the deceased. But, the medical evidence does not support the prosecution story. Thus, the medical evidence also comes into conflict with the oral evidence. 22. The learned Assistant Sessions Judge, Peddapuram acquitted the accused in S.C.No.516 of 2006 who are the prosecution party in the present case on the ground that it is not possible to find out as to who are, in fact, the aggressors and also that the prosecution failed to explain the injuries on the person of A-1 to A-3. The learned I Additional Sessions Judge, Rajahmundry was conscious about the pendency of the counter-case i.e. S.C.No. 516 of 2006 on the file of the Assistant Sessions Judge, Peddapuram, he mentioned about the said case in his judgment, but committed a grave error in not addressing the Sessions Judge, Rajahmundry to transfer the case to him. Similarly, the Assistant Sessions Judge, Peddapuram had also fallen into error by disposing of S.C.No.516 of 2006 even after noticing the fact that the present case was pending on the file of the I Additional Sessions Judge, Rajahmundry. The law is well settled that when there are case and counter-case, both must be tried by one and the same judge and must be disposed of simultaneously by him, otherwise, it is not possible to arrive at a definite conclusion as to the genesis of the incident and also fix up the aggressor. In PADAM SINGH v. STATE OF U.P.[1], the Apex Court held as follows: “It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution case can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellate Court, like the trial Court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. The judicial approach in dealing with the case where an accused is charged of murder under Section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding the conviction. In the present case the majority Judges of the High court have not acted in accordance with the aforesaid parameters and the duties of a court of appeal, while considering the legality of conviction recorded by the Sessions Judge. When the prosecution does not explain the injury sustained by the accused at about the time of the occurrence of in the course of the same transaction, the Court can draw the inference that the prosecution has suppressed the genesis and origin of the occurrence and has, thus, not presented the true version. Where the evidence consists of interested or inimical witnesses, then non-explanation of the injury on the accused by the prosecution assumes greater importance.” 23. We examined the evidence in the present case, the material documents, have taken note of Exs.D-1 to D-24 contradictions and material omissions in the evidence of PWs.1 to 4 which are proved through PWs.12 and 13, the investigating officers and reappraised the evidence in the light of the contentions urged by the learned senior counsel appearing for the appellants as well as the learned Public Prosecutor. We have also perused the judgment of the trial Court having summoned the same by issuing necessary instructions to the Public Prosecutor. PWs.1 to 4 made a radical departure from the basic version of the prosecution and gave an altogether inconsistent version before the trial Court to suit their convenience. The prosecution in this case also failed to explain the injuries on the person of A-1 to A-3. The genesis of the incident was suppressed. Moreover, the basic version of the prosecution in this case itself is that the prosecution party trespassed into the land of the appellants arming with deadly weapons with a view to dispossess them forcibly from the land in their occupation. Therefore, undoubtedly they are the aggressors. A grave miscarriage of justice has been done on account of the trial of the present case and S.C.No.516 of 2006 by two different judges, since both the cases arise out of the same incident during the course of which the deceased, PW-1 and A-1 to A-3 received injuries. Both the cases ought to have been tried and disposed of simultaneously by one and the same Court. Even otherwise, the evidence of PWs.1 to 4 does not stand to legal scrutiny and the happening of the incident as spoken to by PWs.1 to 4 is quite unconvincing and the genesis of the incident has not correctly been spoken to by PWs.1 to 4. The defence version seems to be more probable than that of the version of PWs.1 to 4 in the present case. The trial Court without going in to the crucial aspects and without analyzing the evidence in a proper perspective convicted the appellants by adopting a mechanical approach which is reprehensible. 24. For the foregoing reasons, the conviction and sentence passed by the trial Court against the appellants is unsustainable on facts and also in law and the same is set aside in this appeal and the appellants are acquitted. The fine amount, if any paid, shall be refunded to the appellants. The appellants who are now undergoing jail sentence in the present case, shall be set at liberty forthwith, if they are not required in any other case. The appeal is allowed. ____________ D.S.R.VARMA,J _______________ R. KANTHA RAO, J Date:25.09.2009. Note: L.R copy to be marked. B/o CCM THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR