IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1737 OF 2006 DATE:05.03.2010 Between: Gadimudi Gattaiah and 8 others …… Appellants. And: State of AP, rep. by its PP, High Court of AP., Hyderabad. …..Respondent. HON’BLE SRI JUSTICE V.V.S. RAO AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1737 OF 2006 JUDGMENT: (per Hon’ble Sri Justice Samudrala Govindarajulu) The accused Nos.1 to 5 and 7 to 9 in Sessions Case No.550 of 2004 of the IV Additional Sessions Judge (Fast Track Court), Mahaboobnagar were convicted by that court under Section 302 IPC and were sentenced to imprisonment for life. They were also convicted under Sections 148 and 324 IPC and were sentenced to six months rigorous imprisonment for each of the said offences. They are the appellants herein. In the lower court, case against A-6 was split up. It is alleged that A-1 to A-9 formed themselves into unlawful assembly in front of house of P.W7 at Thatipamula village with common object of murdering Gandam Yellaiah and attacked him and P.W.1 with sticks resulting in injuries to the deceased as well as P.W.1 and that the deceased succumbed to the injuries on the next day on the way to Kurnool hospital. The offence took place on 16.10.2002 at about 22.00 hours. The deceased died on 17.10.2002. The lower court framed charges against A-1 to A-5 and A-7 to A-9 for offences punishable under Sections 148, 324, 302/149 IPC. All of them pleaded not guilty of the charges. They did not take up any other specific plea of defence except total denial. During trial in the lower court, 27 witnesses were examined, 49 documents and 13 material objects were marked by the prosecution. P.W.1 is the injured as well as witness to the occurrence. P.W.2 is wife of P.W.1. She became hostile to the prosecution. P.Ws.3, 4 and 9 who are stated to be eye witnesses also turned hostile to the prosecution. P.W.5 is wife of the deceased. P.W.6 is brother of P.W.1 and the deceased. P.W.7, in front of whose house the offence took place, turned hostile to the prosecution. P.W.8 is also having house at scene of the offence. After the offence, P.W.1 and the deceased were stated to have been taken to native doctor P.W.10 for treatment. P.W.10 also did not support the prosecution. P.Ws.11 to 14 also did not support the prosecution. P.W.1 and the deceased (when he was alive) were taken to the police station on 17.10.2002 and P.W.1 gave Ex.P.1 report to P.W.24 who is the then Head Constable in Pebbair police station. P.W.24 registered Ex.P-1 as case in Crime No.97 of 2002 under Sections 147, 148, 324/149 IPC and issued Ex.P-35 FIR. P.W.15 is the police constable of Pebbair police station who took P.W.1 and the deceased to Government Civil Hospital, Wanaparthy. On advice of doctors, when the deceased was being shifted to Government hospital, Kurnool, on the way the deceased died. Therefore, dead body of the deceased was brought back to Wanaparthi Government Hospital. P.W.25 is then Inspector of Police, in-charge of Kothakota circle. He took up investigation in this case. He conducted inquest on dead body of the deceased in the presence of mediators P.Ws.18 and 19 on 18.10.2002 under cover of Ex.P-19 inquest report. On 25.10.2002, he arrested A-1 to A-9 at Rachakatta in Thatipamula village. It is alleged that A-1 to A-6 gave statements and they were recorded in the presence of mediators P.Ws.20 and 21 under cover of Exs.P-36 to P-41 Panchanams and that in pursuance of their statements, nine sticks M.Os. 1 to 9 were seized under cover of Exs.P-42 to P-47 panchanamas. P.W.27 is the Civil Assistant Surgeon, Government Hospital, Wanaparthi. He examined P.W.1 and gave Ex.P-49 wound certificate noting the following injuries:- 1. Sutured lacerated injury 1. ½ c.m in length over the vault of skull. 2. Contusion 2 x 1 c.m over the left eyebrow 3. Abrasion 1 x ¾ c.m., over the lateral to the left eye 4. Abrasion 3 x 2 c.m., over the back of the chest. All the above injuries are opined to be simple in nature and might have been caused with blunt object within 12 hours of the examination. P.W.27 conducted autopsy on dead body of the deceased and issued Ex.P.48 post-mortem examination report. He noticed sutured lacerated injury of 3 c.m in length over left parietal region of skull and also found haematoma present underneath layers of the scalp with depressed fracture of both parietal bones of the skull. Blood internal (i.e) haemorrhage was present in the brain. He also found ruptured spleen in abdominal cavity. He opined that the deceased died due to shock and haemorrhage because of injuries received and that age of injuries was 12 to 24 hours prior to post-mortem examination. It appears that P.W7 did not note corresponding external injuries on abdominal portion of the deceased. The prosecution banked upon evidence of P.W.1, P.W.6 and P.W.8 to prove the charges. Out of them, P.W.1 and P.W.6 are brothers of the deceased. Presence of P.W.1 at scene of the offence cannot be doubted because he also received injuries. Presence of P.W.8 at the scene also cannot be doubted because the offence took place almost in front of her house which is by the side of P.W.7’s house, as can be seen in Ex.P- 18 rough sketch of the scene prepared by P.W.25. Ex.P-17 is scene of offence panchanama prepared by P.W.25. The offence took place on the eve of Dasara Festival. All the accused, injured and deceased are agricultural coolies. On that day, all of them went for collection of Dasara Inams from villagers and returned to their respective houses by about 3.00 p.m. P.W.1 says that at that time he observed quarrel between Balakishti and Chintakunta Kishtamma near house of Balakishti and that he tried to pacify them and in the meanwhile A-2 and A-4 came there and questioned P.W.1 about his propriety in interfering in that dispute. He says that when he came back to his house from that place, A-2, A-3 and A-7 came to his house along with a-4 and again questioned him and that altercation took place in between himself and those accused persons and that A- 7 caught hold of his legs and pulled him and that when he fell down, A-4 beat him with stick on his head and that villagers came there and rescued him and that since he sustained bleeding head injury, he was taken to P.W.10 a local doctor for treatment. Then the main offence took place at 10.00 p.m. He says that at about 10.00 p.m again A-4 and A-5 came towards his house and started shouting and that after hearing their shouts, he came out and beat them with stick and that the accused brought his deceased brother from his house and all of them went near P.W.7’s house where A-1 to A-9 beat the deceased with sticks and that on hearing cries of the deceased, he went towards P.W.7’s house and that the accused also beat him on head, shoulder and back. It is not known as to why the deceased was brought and was beaten, when it was P.W.1 who was the centre of controversy. In cross examination, he deposed that A-2 to A-4 and A-7 beat him in the evening at his house. He again says that in the evening when A- 2 to A-5 beat him, he was alone. In Ex.P-1 First Information Report, it is version of P.W.1 that in the evening A-2 and A-4 came with their relatives and attacked him and beat him with sticks on the plea that they quarrelled with one Midde Ramulu’s wife and that they also tried to assault the deceased along with A-1 to A-9 and that on the night at about 10.00 p.m when the deceased was proceeding in the bazaar for getting beedis, A-1 to A-9 attacked with sticks and beat him indiscriminately because of old grudge, in front of P.W.7’s house and that on hearing the screeners of his brother he rushed to that place and intervened and that he was also beaten with sticks. It is contended by the Appellant’s counsel that in Ex.P-1, P.W.1 stated that the deceased was attacked when he was going in bazaar for purchasing of beedis, whereas during trial, P.W.1 stated that the deceased was brought from his house. When the deceased was going from his house towards bazaar for purchase of beedis, A-1 to A-9 might have attacked the deceased near P.W.7’s house. There is nothing inconsistency in it. P.W.6 deposed that all the accused were roaming around their houses armed with sticks and that at time 10.30 p.m, P.W.1 beat A-4 and that A-1 came to house of the deceased and informed him about P.W.1 beating A-4 and asked the deceased to come along with him and that all the accused beat the deceased near houses of P.W.7 and P.W.8 and that on hearing those shouts, he rushed to that spot and that by that time, the deceased fell down and was in unconscious state. This evidence of P.W.6 shows that P.W.6 went to the spot only after hearing cries of the deceased and by the time he reached the scene, beating of the deceased was over. Even though P.W.7 turned hostile to the prosecution, his neighbour P.W.8 supported the prosecution version. She says that at about 10.30. p.m A-1 brought the deceased from his house and that the incident took place in front of her house and that she peeped the incident through gap of her door. She says that A-8, A- 1 and A-4 beat the deceased with sticks on his head and that when she came out, A-2 threatened her to beat with cirt peg and that therefore, she went inside the house and closed the door. Even though P.W.8 was treated as hostile to the prosecution as she did not state complete version of the prosecution, in our view, evidence of P.W.8 to the extent spoken by her is highly natural. She saw the incident of beating the deceased on his head by A-8, A-1 and A-4 only through gap in her door. When she came out, she was threatened by A-2. Therefore, P.W.8 went inside and closed her doors. After P.W.8 closed her doors, the deceased was beaten further and P.W.1 was also beaten. It is contended by the appellant’s counsel that P.W.1 did not give specific overt act to each of the accused against the deceased. In our opinion, when the deceased was being beaten by nine persons at a time with sticks, it cannot be possible to notice each overt act of each of the accused separately. There is nothing unnatural for P.W.1 when he says that A-1 to A-9 who were armed with sticks beat the deceased indiscriminately. In so far as overt acts attributed to some of the accused as against him, P.W.1 was able to give specific overt acts individually, since he was beaten by not all the accused but only by four of the accused in that rioting. Thus, on scrutiny of prosecution evidence, particularly that of P.Ws. 1, 6 and 8, there can be no doubt of the fact that it was A-1 to A-9 who caused injuries to P.W.1 and who also caused injuries to the deceased leading to his death. There are no circumstances to doubt truth of evidence of P.W1, P.W6 and P.W8. Relying upon Ninaji Raoji v. State of Maharasthra[1] a n d Ram Lal v. Delhi Administration[2] of the Supreme Court, it is contended by the appellants’ counsel that at best the offence committed by the appellants may be one under Section 325 or 326 IPC and not one attracting Section 302 IPC. In Ram Lal (2 supra) only two persons beat the deceased with lathy on head whereas in the case on hand, the deceased was attacked by nine persons with sticks and was inflicted blows not only on head but also on spleen region resulting in fracture on skull bone as well as rupture of spleen. In Ninaji Raoji Boudha, (1 supra) assailants intended to cause injury to son of the deceased and not the deceased himself and the deceased received only head injury and no other injuries. In our opinion, the above two reported decisions were rendered on facts of those cases and they have no application herein. Having regard to nature of injuries sustained by the deceased on several vital parts of his body, at any rate, the offence committed by the appellants may be termed as culpable homicide not amounting to murder, as exception-4 to Section 300 IPC has to be applied to this case. None of the appellants intended to cause death of the deceased. If they intended to cause death of the deceased, they could have armed themselves with sharp edged weapons and not sticks. There was no pre meditation on the part of the appellants to kill the deceased, because the deceased had no quarrel previously with any of the accused much less interfered in any quarrel. Suddenly when the deceased was going from his house towards bazaar to purchase beedis, the accused brought him near scene of the offence and he was attacked by all of them with sticks. Having regard to totality of circumstances, we are of the opinion that facts in this case do not attract offence punishable under Section 302 IPC, but attract offence punishable under Sections 304 part-II IPC. In so far as offences under Sections 148 and 324 IPC are concerned, the appellants cannot have any relief in this appeal because all of them at a time attacked the deceased as well P.W.1. In the result, the appeal is partly dismissed in so far as offences punishable under Sections 148 and 324 are concerned. The appeal is partly allowed altering conviction of the appellants 1 to 8/A-1 to A-5 and A-7 to 9 from Section 302 IPC to Section 304 part-II IPC and altering sentence from imprisonment for life to rigorous imprisonment for seven years. _______________ V.V.S.RAO, J. ____________________________________ SAMUDRALA GOVINDARAJULU, J. 05.03.2010 Gk. HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1737 OF 2006 DATE:05.03.2010 Gk [1] 1976 Criminal 1154 [2] 1973 Criminal Law Journal 17