IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SIXTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1738 OF 2007 Between: Kolathuru Rammohan and others … Appellants And State of A.P., rep. by Public Prosecutor, Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1738 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice Raja Elango) The appellants/accused Nos.1 to 4, who were put on trial for the offences punishable under Sections 302 and 324 IPC in Sessions Case No.426 of 2005 on the file of VI Additional District and Sessions Judge, Fast Track Court, Tirupathi were found guilty and were sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer SI for three months and A1 was also convicted for the offence under Section 324 IPC and was sentenced to suffer RI for a period of six months and also to pay a fine of Rs.500/-, in default to suffer SI for one month, by judgment, dated 13.11.2007, preferred this appeal challenging the conviction and sentence recorded against him. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- One V.Krishnaiah (hereinafter referred to as “the deceased”) owned some landed properties and about one month prior to the date of death of the deceased, P.W.12 took the lands of the deceased on lease and thus the deceased developed acquaintance with P.W.12 and used to regularly visit his house and developed illicit intimacy with his wife i.e., P.W.11. In that connection few days prior to the incident A1 to A3, who are the brothers of P.W.12, picked up quarrel with the deceased as to why he developed intimacy with P.W.11. On 18.07.2004 at about 09:00 PM while the deceased, P.Ws.1 and 2, wife and daughter of the deceased respectively, were sleeping in the varandah, A1 to A4 went to their house armed with sticks and attacked the deceased and caused injuries on his head and other parts of his body. In the mean time, when P.W.1 intervened, she was also beaten by the accused with sticks and caused head injury on her. Due to the injuries sustained, the deceased lost his consciousness. Then A1 folded him in the net and took him by keeping over his shoulder with the help of A2 to A4. A4 threatened P.W.2 with dire consequences on the point of knife. Thereafter, P.Ws.1 and 2 took the help of P.Ws.3, 4 and others and all of them rushed to the police station. On the intervening night of 18/19.07.2004 at about 12:30 midnight A1 went to the police station with a cover containing the head of the deceased. In the meanwhile P.Ws.1, 2 and along with other villagers also reached the police station, identified the head brought by A1 as that of the deceased. Then P.W.1 got Ex.P1 scribed through P.W.5 and lodged the complaint. Basing on it, P.W.18 registered a case in crime No.145 of 2004 and issued F.I.R. under Ex.P8. During the course of investigation, P.W.18 secured the presence of mediators and recorded the statement of A1 and at his instance M.Os.1 and 2 stick and knife were recovered under Ex.P11 panchanama. Further investigation is taken over by P.W.19 the then Inspector of Police. During the course of investigation, P.W.19 examined P.W.1 and the accused; seized the material objects; conducted inquest over the trunk portion of the deceased; got photographed the scene of offence; prepared rough sketch; sent the trunk and head for post mortem examination. On 19.07.2004 on requisition, P.W.17 Civil Assistant Surgeon held autopsy over the dead body and issued Ex.P17 post mortem report opining that the cause of death was due to haemorrage and shock due to multiple injuries. P.W.17 further examined P.W.1 and issued wound certificate under Ex.P16. After completion of the post mortem examination, M.Os.7 to 11 were seized under Ex.P22 panchanama. During the course of investigation, P.W.19 examined all the relevant witnesses; visited the house of the deceased; prepared observation report in the presence of P.W.16 under Ex.P15. That on the next day i.e., on 20.07.2004 he effected the arrest of A1 in the police station, forwarded him to the court for remanding him to judicial custody. He forwarded all the material objects to RFSL. On 22.07.2004 he arrested A2 to A4 and remanded them to judicial custody. After receiving all relevant documents and on completion of investigation charge sheet was filed. 3. On committal, the learned Sessions Judge, framed charge under Section 302 and 324 IPC and when the same were read over to the accused in Telugu, they denied the same and claimed to be tried. 4. In support of its case, the prosecution got examined P.Ws.1 to 19 and got marked Ex.P1 to P24 and M.Os.1 to 11. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. On behalf of the accused, no witness was examined, but Ex.D1 was marked. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charge framed against him and sentenced him to imprisonment as aforementioned. 6. Heard both sides and perused the entire records. 7. The point that arises for consideration is: - “Whether the prosecution proved the guilt of all the accused beyond reasonable doubt?” P O I N T : - 8. P.W.1, wife of the deceased, who is an eyewitness to the incident, deposed about the dispute regarding leasing of the land to P.W.12 and in that connection disputes arose between A1 to A3 and the deceased and they filed some criminal cases against each other. On 18.07.2004 at about 09:00 PM, while herself, her daughter and the deceased were sleeping in the varandah of their house, A1 to A4 came to their house. Then she woke up her husband that somebody came to their house. Thereby A1 beat her husband with a stick over his head. At the same time A2 to A4 beat her husband with sticks and iron rods and thereby her husband fell unconscious. Then A1 folded her husband in the mat and took away her husband by keeping over his shoulder with the assistance of A2 to A4. She further deposed that herself and her daughter immediately rushed to the village and picked up some more persons and went to the police station. By the time, they reached Varadaiahpalem police station, they noticed A1 sitting in the police station with a cover containing the head of her husband. Then she presented a complaint under Ex.P1. P.W.2, who is the daughter of P.W.1 and deceased, also deposed on the same lines as that of P.W.1. P.W.2 deposed that A2 to A4 accompanied A1. 9. In the evidence, P.W.2 has not stated anything against A2 to A4. She only stated that A2 to A4 only accompanied A1 for the commission of crime. Further A2 to A4 also has not caused any injury on P.W.1. Apart from these two witnesses, the other witnesses spoke about the subsequent events of the incident. The other witnesses deposed that they witnessed in the police station that A1 was present along with the head of the deceased in a plastic packet. Most of the witnesses supported the case of the prosecution in other aspects. The said evidence is also not so relevant for the decision of this case. The entire case can be decided only on the evidence of P.Ws.1 and 2 along with the fact that the head is handed over by A1 in the police station. 10. Sri C.Padmanabha Reddy, learned senior counsel for the appellants, contended that even though the evidence is adduced in connection with the participation of A1 by the prosecution, absolutely there is no evidence against A2 to A4 except the fact that they were also present in the place of occurrence in the first instance. Further, the learned trial judge also acquitted A2 to A4 for the charge of Section 324 IPC taking into consideration of the fact that though A2 to A4 participated in the commission of offence at the first instance, absolutely there is no evidence to show that they accompanied A1 in the commission of offence and there is no other connecting material to implicate A2 to A4. 11. Considering the evidence of P.Ws.1 and 2 coupled with the fact that A1 handed over the head of the deceased in the police station, we are of the view that the prosecution is able to prove the guilt of the accused beyond reasonable doubt. Though the charges were framed against all the accused invoking the provisions of Section 34 IPC, the learned sessions Judge has not framed the charge under Section 34 IPC in view of the fact that no material was placed by the prosecution at the time of framing charges. But at the same time, the learned sessions Judge convicted the other appellants for an offence under Section 302 IPC simplicitor. If the learned sessions judge wants to convict A2 to A4 for an offence under Section 302 IPC simplicitor, there should be some overt acts attributed against A2 to A4. In the absence of any direct evidence to connect A2 to A4 and without invoking the provisions of Section 34 IPC, the conviction against the appellant Nos.2 to 4 is not sustainable. Hence, we are of the view that the appeal against the conviction insofar as A1 is concerned, is liable to be dismissed and since there is no admissible evidence with regard to A2 to A4 participating in the commission of offence, the appeal is liable to be allowed against them. 16. The conviction and sentence recorded against the appellant No.1/A1 for the offence punishable under Sections 302 and 324 IPC in Sessions case No.426 of 2005, dated 13.11.2007, by the VI Additional District & Sessions Judge, (Fast Track Court), Tirupati, are hereby confirmed. Insofar as the conviction and sentence recorded against the appellant Nos.2 to 4/A2 to A4 for the offence punishable under Section 302 IPC is hereby set aside and they are set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellant Nos.2 to 4/A2 to A4 shall be refunded. The Criminal Appeal is partly allowed to the extent indicated above. _____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J July 26, 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1738 OF 2007 26.07.2011 lmv