HONOURABLE SRI JUSTICE D.S.R. VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 1231 OF 2008 DATED 15th April, 2010. Between Gummadi Penchalaiah and ors …….Appellant/Accused Nos. 1 to 3 And The State of AP, rep. By Public Prosecutor, High Court of AP, Hyderabad. ……..Respondent/Respondent. HONOURABLE SRI JUSTICE D.S.R. VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 1231 OF 2008 JUDGMENT: ( Per HON’BLE SRI JUSTICE RAJA. ELANGO) 1. This Criminal Appeal under Section 374(2) of Criminal Procedure Code is directed against the judgment dated 06.10.2008 passed in S.C.No.57 of 2004 by the learned IIII Additional District & Sessions Judge (Fast Track Court), Nellore, whereunder and whereby (i) appellant/Accused No.2 was found guilty for the oﬀence punishable under Section 302 IPC, and, accordingly he was convicted and sentenced to suﬀer imprisonment for life and to pay a ﬁne of Rs.5,000/-, in default to suﬀer simple imprisonment for three months; and, (ii) Appellants/Accused Nos. 1 and 3 were found guilty for the oﬀence punishable under Section 302 r/w 34 IPC and accordingly they were convicted and sentenced to suﬀer imprisonment for life and to pay ﬁne of Rs.5,000/- each, in default to suﬀer simple imprisonment for three months. 2. The accusation, which led to the trial of the accused arises out of the temple land dispute between the accused and PW.1 group and pursuant to the same, on 21.3.2004 at about 5.00 PM, all the accused A1 to A11 formed into an unlawful assembly armed with deadly weapons with common intention to kill P.W.1-Pulli Anand and his father Puli Sreeramulu. However, on seeing the accused, P.W.1 ran away and A3 and A1 attacked Puli Sreeramulu and beat the deceased with deadly weapons indiscriminately till he died and one of the accused caused injury on the left leg of P.W.1. 3. The case, as unfolded, projected by the prosecution and narrated by the trial Court is as follows: 4. On 21.3.2004 at 5.00 p.m. at Kanaparthipadu village, A1 to A11 formed into an unlawful assembly armed with deadly weapons like knives, rods, spears, sticks etc., with a common object to kill PW.1-Puli Anand and his father Puli Sreeramulu, and were waiting near the pial of the village. At that time, P.W.1 was going from his house towards his hayrick to fetch hay. On seeing PW.1, the accused chased him. P.W.1 apprehended danger and was running towards his house. At that time Puli Sreeramlu (deceased), the father of PW.1 intervened. In pursuance of their common object, A.3 stabbed the deceased with a spear on the stomach. A.3 beat the deceased with iron rod on the head. A.1 axed on the left knee, whereas the other accused beat the deceased. As a result of the injuries, the deceased died on the spot. One of the accused caused injury on the left leg of PW.1. All the accused left the scene and while escaping through Golagamudi road, they threw the weapons by the side of the road and absconded. This incident was witnessed by PW.2-Puli Sunandamma, the wife of the deceased, PW.3- Sanniboina Radha, the daughter of the deceased, PW.5-Badinati Subbaiah, his co-brother, PW.4- Sandiboina Mallikharjuna, the son-in-law of the deceased and PW.6-SK. Masthan. P.W.1 took the dead body of the deceased to Government Hospital, Nellore where the doctors declared that the deceased died. PW.14- V.S.R.Murthy, the then Sub-Inspector of Police, Nellore Rural Police Station received the report of PW.1 under Ex.P.1 and registered the same as a case in Crime No. 94/2004 under Sections 147, 148, 307 and 302 r/w 149 IPC, and submitted original FIR Ex.P.18 to the Court. Thereafter, PW.16-K.Sathyanarayana, Inspector of Police, Nellore Rural took up investigation, held inquest over the dead body of the deceased at Government Headquarters Hospital, Nellore in the presence of PW.8-Moolam Umasekhar and LW.9-Arkat Venkata Prasannareddy, PW.9-Kori Malakondaiah. Thereafter post-mortem was conducted over the dead body of the deceased by PW.12-Dr.K.Seetha Rathnam, who opined that the cause of death of the deceased was due to the injuries to the vital organs, which resulted in Haemorrhagic shock. A.1 to A.3, A.6 to A.9 and A.11 surrendered before the Magistrate on 24.3.2004. On the requisition given by the Inspector of Police, they were given to Police custody for three days. The Inspector interrogated them and they confessed the offence and their confession lead to the seizure of the weapons under cover of panchanama in the presence of the mediators. Later on, the Inspector arrested A.4 and A.5. In the charge sheet the Inspector submitted that over an extent of Ac.0.30 cents of land belonging to Gangamma temple, a dispute arose with regard to that temple land in between the group of the defacto complainant, his family members and three more families belonging to one group, whereas the accused persons belonging to other group, headed by A3, who was the Sarpanch of the village and both parties developed animosity against each other and a mediation was held in the presence of B.V. Ramana Reddy, Mandal President, and, a Trust was formed with six persons from each group. The accused did not agree for the mediation and demanded P.W.7-B. Seshaiah to execute the temple land in their favour, for which, P.W.1 and P.W.7- Bakkamunthala Seshaiah did not agree. On that the accused bore grudge against PW.1 and his father. On 21.3.2004 at about 1.30 P.m., the sheep belonging to PW.7 were grazing in his ﬁeld. A.6-B. Venkateswarlu drove the sheep from the ﬁeld and scolded PW.7 and on that an altercation took place between P.W.6- B.Venkateswarlu on one side, P.W.1, PW.7- Sesahah and P.W.4- on the other side and that enmity drove the accused to commit this oﬀence. P.W.7-J.Murali Krishna, who succeeded PW.16 ﬁled charge sheet. The same Inspector ﬁled charge sheet against PW.1, Bakkamunthala Ravi and Sanniboina Madhusudhan @ Madhu alleging that those three persons along with the deceased, with an intention to commit murder, attacked A.1, A.4, A.5 and A.10 and caused grievous injuries to A.4, A.5, and A.10 and thus they committed oﬀences punishable under Sections 324, 326, 307 r/w 34 IPC. The case against the deceased was abated as he died. Both the cases are tried together as a case and counter case. 5. The charge sheet was read over to the accused. They pleaded not guilty and claimed to be tried. 6. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.23, besides M.Os. 1 to 16. On behalf of the Accused, Exs. D.1 to D.3 the portions of 161 Cr.P.C. statements of P.Ws. 2, 3 and 7 respectively were marked. 7. After conclusion of the trial, the learned Sessions Judge found A.2 guilty for the oﬀence punishable under Section 302 IPC, and, A.1 to A.3 guilty for the oﬀence punishable under Section 302 r/w 34 IPC. Further, the learned Sessions Judge found A1 to A3 not guilty for the oﬀences punishable under Sections 148 and 307 IPC, and A4 to A11 found not guilty for the oﬀences punishable under Sections 148,307, 302 r/w 149 IPC. Accordingly A1 to A3 were convicted and sentenced to suﬀer imprisonment as stated supra. 8. Assailing the correctness of the conviction and sentence imposed by the learned Sessions Judge, the appellants/Accused Nos.1 to 3 preferred the present Criminal Appeal. 9. In view of the rival submissions, and in the facts and circumstances of the case, the point to be decided is, whether the prosecution has proved its case beyond reasonable doubt to bring home the guilt of the accused and whether the judgment of the trial judge is legal, correct and based on the evidence adduced by the parties. 10. We have heard the learned Counsel for the appellants-Accused Nos.1 to 3 as well as the learned Public Prosecutor, who have taken us through the entire evidence and the ﬁndings recorded by the Court below. 11. It is necessary and proper to state in brief about the evidence adduced by the prosecution witnesses, which runs as follows: PW.1: Puli Anand is the son of the deceased Sriramulu. He deposed with regard to the Gangamma temple land dispute, mediation conducted one Sri B.V. Ramana Reddy with regard to the said land dispute, the earlier incident said to have been taken place on 05.03.2004, and the report given to police. He also deposed that on 21.3.2004 at 1.00 or 1.30 p.m. himself, PW.5 B. Subbaiah and one Seshaiah went to Budida Venkateswarlu and questioned him about the incident. He further deposed that on 23.01.2004 at 5.00 p.m. the incident of oﬀence is spoken. He carried the deceased to Government Headquarters Hospital, Nellore and presented Ex.P.1 to police. At hospital, he came to know that some of the accused have also received injuries. Police seized the blood stained shirt, drawer, lungi and towel vide MOs. 1 to 4 of the deceased. P.W.2: Smt. P. Sunandhamma is the wife of the deceased Sriramulu. She deposed in brief in similar lines to her son PW.1. P.W.3: Sandhiboyina Radha is the daughter of the deceased Sriramulu. Her evidence also corroborates the oral testimony of P.W.1 P.W.4: S.Mallikarjuna is the son-in-law of the deceased Sriramulu and husband of P.W.3. He also deposed about the Gangamma temple land dispute and narrated the incident. P.W.5: B. Subbaiah deposed about Gangamma temple land dispute; about giving a report earlier at Nellore Rural police station; incident of driving away cattle by Budida Venkateswarlu and witnessing of theincident when he bringing cutting machine from one Bujji Reddy at 5.00 pm,. He also deposed that himself and P.Ws. 1 to 4 shifted the deceased Puli Sreramulu to the hospital. P.W.6: Sk. Masthan Saheb, a resident of Gujaguja, Nellore deposed that he came to the scene of oﬀence at Rachabanda at 5.00 p.m. and witnessed the incident. P.W.7: Bakkamunthala Seshaiah deposed that Gangamma deity was installed by one Narsaiah and later his maternal aunt Kamalamma gave Ac.0.37 cents of land for maintenance of the temple, escalation of price of the land on account of laying by-pass road, which led both groups to approach Sri Ramana Reddy and his proposal to create a trust. The deceased Puli Sreramulu is his son-in-law or nephew. P.W.8: Mulam Uma Shankar, a punch witness, turned hostile, who deposed about the preparing of the scene of panchanama Ex.P.2, Inquest Panchanama Ex.P.3. P.W.9: P.Malakondaiah deposed about signing on Ex.P.3 inquest panchanama. P.W.10: Doraswami Venkata Chalam deposed about the alleged confessional statements given by the accused, which are marked at Exs. P.4 to P.11. P.W.11: Ch. Venkateswarlu deposed in similar lines to P.Ws. 10. Ex.P.14 is his signature . His evidence was marked in material objects. P.W.12: Dr. K. Sesha Rajyam, A Civil Assistant Surgeon , Government Head Quarters Hospital, Nellore, conducted postmortem examination at 3.15 PM on 23.2.2004. Ex.P.16 is the post mortem certificate. P.W.13:Dr.P.Aparna, a Civil Assistant Surgeon, at Government Headquarters Hospital, Nellore, examined P.W.1-Puli Anand at 1.50 a.m. on 22.3.2004 and found a swelling with tenderness on right knee and issued certificate Ex.P.17. P.W.14: Sri V.S.R.Murthy, Sub-Inspector of Police, who received Ex.P.1 report from PW.1., registered crime No. 94/2004 and sent the FIR to JMFC, Nellore.He also recorded statements of injured A.5 and registered the same as another case. P.W.15: Sri J.Murali Krishna, Inspector of Police , who ﬁled charge sheet in this case and in the counter case in Crime No. 95/2004. P.W.16: SriK.Satyanarayana, Inspector of Police conducted investigation, received FIR from PW.14, visited Kanuparthipadu at 4.30 a.m. on 22.3.2004 and examined witnesses. Later in the presence of PW.8 and another, visited scene of oﬀence. Ex.P.19 is the Panchanama. He seized MO.14-blood stained, MO.15-controlled earth, MO-16- an iron axe ponnu. Ex.P.20 is the rought sketch of the scene of oﬀence. He held inquest over the dead body of Sriramulu on 22.03.2004 in the presence of PW.8 and two others, visited Kanuparthipaud and recorded the statement of PW.4 and took custody of A.1, A.2, A.6 to A.9 and A.11 from the Magistrate and recorded their confessional statements, Exs.P.4 to P.11 and in the presence of P.Ws. 10 and 11, recovered M.Os. 12,13,5,7 to 11. Ex.P.13 is the panchanama. He sent the property to FSL and Ex.P.21 is the FSL report. 12. The learned trial Judge convicted the accused as stated above placing reliance on the evidence of P.Ws. 1, 2, 3 and 4, who are son, wife, daughter and son-in-law respectively of the deceased. P.W.1 is an injured witness. P.W.1 deposed about the Gangamma temple land dispute, the mediation by one Sri B.V. Ramana Reddy, the earlier occurrence on 5.3.2004 and also regarding the incident took place on 21.3.2004 at about 1.30 p.m. The learned trial Judge also placed reliance on the testimony of P.Ws. 2, 3, 4 and 6 and on Ex.P.1 to P.23. 13. The learned Counsel for the appellants mainly contended that the motive attributed for the said occurrence is ﬂimsy in nature and the same is also not acceptable in view of the discrepancies found place in the evidence of the above said witnesses. The motive lasts its signiﬁcance when the prosecution adduces evidence cogently regarding the incident and hence the said contention of the learned Counsel for the appellants is not merit acceptance. Further, the learned Counsel for the appellants submitted that apart from the appellants herein, eight other persons also named in the charge sheet and the learned Sessions Judge rejected the evidence in connection with A4 to A11 and acquitted them, but placing reliance on the same evidence, convicted the present appellants. He, therefore, submitted that once the learned Sessions Judge felt that the evidence adduced by the witnesses is false in connection with other witnesses, the same beneﬁt should be extended to the present accused/appellants also. It is to be seen that the theory of false in uno is false in omnibus is not acceptable theory in India and the learned Sessions Judge has rightly rejected the evidence in so far as the accused 4 to 11 are concerned and relied on the evidence adduced as against the appellants herein. 14. The learned Counsel for the appellants contended that the conviction of the three appellants/accused under Section 302 read with Section 34 IPC is not sustainable in law. Even the evidence of P.W.1 is that the appellants were inimical towards P.W.1 and not against the deceased and the said incident also suggests that A1 and A3 have not shared the intention of A2 in this case. Further it is submitted that this occurrence was due to the sudden quarrel and one of the accused also sustained injuries. This Court perused the entire record and evidence adduced by the prosecution. The evidence suggests that in the present occurrence the involvement of A.1 and A.3 cannot be construed as they shared in the intention of A.2 in causing death of the deceased. Further the medical evidence would also reveal that A.3 and. A1 caused the following injuries: “1. Small abrasion 1 x ½ cm. over medial aspect of right fore arm. 2. Lacerated wound 1 x ½ cm on the left parietal region- scalp deep. 3. Lacerated wound 5 x 2 cm bone deep present over right knee—fracture of patella noted.” But, whereas A2 is concerned, he caused the following injury, which is fatal in nature: “Stab wound with slit shape ½ cm left, ½ cm below the umbilicus with 5 cm x 2 cms small intestine coming out.” 15. Hence, this Court has no hesitation to hold that A2 caused the fatal injury which has resulted to cause the death of the deceased and therefore committed oﬀence punishable under Section 302 IPC. In that view of the matter, the conviction and sentence imposed upon A2 is hereby confirmed. 16. As far as A1 and A3 are concerned, the conviction under Section 302 read with Section 34 IPC is modiﬁed as conviction under Section 324 IPC and sentence is reduced to the period of imprisonment already undergone by them. 17. In the result, the judgment rendered by the trial Court is set aside insofar as the conviction and sentence imposed by it as against Gummadi Penchalaiah, S/o Ramanaiah; and Devarala Venkataramanaiah, S/o Krishnaiah, the appellants 1 and 3 /accused 1 and 2 respectively. Accordingly they have been convicted for the oﬀence punishable under Section 324 of IPC and the sentence imposed by the trial Court against them is reduced to the period of imprisonment already undergone by them and they are directed to be released forthwith., if not required in any other case. Their bail bonds shall stand cancelled. The fine amount, if any, paid by them shall be refunded to them. 18. As regards Puli Subramanyam, S/o Jayaramaiah, appellant No.2/Accused No.2 is concerned, the judgment rendered by the trial Court regarding the conviction and sentence for the oﬀence under Section 302 IPC is hereby confirmed. 19. In the result, the Criminal Appeal is allowed in part, as indicated above. --- ------------------------- ------- JUSTICE D.S.R. VARMA ------------------------------------ JUSTICE RAJA. ELANGO DATED 15th APRIL 2010. Msnr.