IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.841 OF 2007 AND 915 OF 2007 Crl.A.No.841 of 2007: Between: Dommari Sheshudu @ Deshapu Nageseshudu ..... APPELLANT AND State of Andhra Pradesh ....RESPONDENT Crl.A.No.915 of 2007: Between: Vadde Nageswara Rao and others ..... APPELLANTS AND State of Andhra Pradesh ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU AND THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.841 OF 2007 AND 915 OF 2007 COMMON JUDGMENT: (Per Hon'ble Sri Justice N.R.L. Nageswara Rao) These appeals arise out of the convictions and sentences passed by the V Additional Sessions Judge (Fast Track Court), Kurnool, at Nandyal, in Sessions Case No.191 of 2005, in which all the accused were convicted for the offences punishable under Sections 148 and 302 of the Indian Penal Code, 1860, (for short, "I.P.C.") and sentenced to undergo imprisonment for life each and to pay a fine of Rs.1,000/- each, in default to undergo simple imprisonment for six months each and further, sentenced to undergo rigorous imprisonment for a period of two years each for the offence punishable under Section 148 I.P.C. Criminal Appeal No.841 of 2007 was filed by A3 and Criminal Appeal No.915 of 2007 was filed by A1, A2 and A4 to A6. 2. The case of the prosecution is that the accused and PW.1 are residents of Beeravolu Village of Rudhravaram Mandal. The deceased was working as a Postman. PW.1 is the wife and PW.4 is the daughter of the deceased. One year prior to 16.11.2004, there were panchayat elections in the Village and the deceased had supported one Laxmikantham of Telugu Desam Party, whereas A2 has contested on behalf of Congress Party and supported by the other accused. Therefore, there was political rivalry between the accused and the deceased. A week prior to the date of incident, father of A4 asked the deceased to allow him to draw water to his lands and there was an altercation and A4 proclaimed that he would see the end of the deceased. Thereafter, A1 with his followers threatened, abused and beat one Bethi Bhaskar in the name of his caste and therefore, he filed a complaint under SCs and STs (POA) Act, 1989, in which A1 and his men were arrested. A1 thought that the above act of Bethi Bhaskar was at the instance of the deceased. Because of all these acts in mind and rivalry, the accused wanted to do away with the deceased. On 16.11.2004 at about 06:00 AM, when the deceased left for walking on the cement road leading to B.C. Colony from S.C. Colony followed by his wife and reached the bore pump on the cement road in B.C. Colony, the accused persons formed into an unlawful assembly armed with deadly weapons like Maddikathulu and shouted "Champandi Raa Veenni" and attacked the deceased indiscriminately and caused the death of the deceased. PW.1, who was following the deceased to fetch water, witnessed the incident and raised hue and cries. On hearing the cries of PW.1, PWs.2 to 4 gathered there and all of them have seen the accused running away from the scene and also the incident. Thereafter, at about 08:00 AM, PW.1 got a report drafted by PW.7 and presented it to the Sub-inspector of Police, Rudhravaram, PW.9, who came to the village and thereafter, it was registered as a case in Crime No.121 of 2004 under Sections 147, 148 and 302 read with 149 I.P.C. During the course of investigation, the Circle Inspector of Police, PW.10, conducted inquest over the dead body of the deceased, held panchanama of the scene, examined the witnesses and sent the dead body of the deceased for post-mortem examination. Thereafter, on 04.12.2004 at about 08:00 AM, A1 was apprehended and in pursuance of his voluntary confession, the weapon used in the commission of offence was recovered. Thereafter, he was sent for remand. Al also produced the blood stained Terri Cotton shirt and Terri Cotton Pancha, which were also seized. Thereafter, A2 to A6 were also apprehended and all the accused were sent for remand. After conducting the post-mortem examination, the doctor opined that the death of the deceased was due to shock and hemorrhage caused due to head injury with multiple fracture of skull bones. As such, the accused were charged for the offences punishable under Sections 147, 148 and 302 read with 149 I.P.C. The case was taken on file as P.R.C.No.6 of 2005 by the Judicial Magistrate of First Class, Allagadda, and committed the same to the Court of Sessions, Kurnool, who in turn made over the same to the Sessions Judge at Nandyal. 3. After the appearance of the accused, charges under Sections 147, 148 and 302 I.P.C. were framed, read over and explained to them and they pleaded not guilty. 4. On behalf of the prosecution, PWs.1 to 10 were examined and EXs.P1 to P12 were got marked besides case properties MOs.1 to 10. 5. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. and on behalf of the accused DWs.1 and 2 were examined and Exs.D1 to D3 were got marked. 6. After considering the evidence on record, the learned Sessions Judge accepted the prosecution case and accordingly, convicted and sentenced the accused. Aggrieved by the said judgment, the present appeals are filed. 7. The points that arise for consideration are: 1) Whether the accused have committed the murder of the deceased? 2) Whether the convictions and sentences imposed by the learned Sessions Judge are legal and sustainable? 8. According to the case of the prosecution, due to some political rivalries between the deceased and the accused, the offence is said to have been committed. One year prior to the incident, there was said to be Panchayat Elections, whereunder the deceased was said to have supported one Laxmikantham and A2 incidentally won the elections. On this aspect, the evidence of PWs.1 to 4 clearly shows the political differences and the fact of the deceased supporting Laxmikantham and A1 winning the Sarpanch Election. So far as these aspects are concerned, there is no much controversy in the cross-examination of the witnesses. Furthermore, it was alleged that at the instance of the accused, the licence of the deceased to run Fair Price Shop was also cancelled and this is also a matter of distrust between both the parties. This part of the motive as contended by the prosecution is accepted by the lower Court and in fact, in the arguments submitted before us. There is not of much material to discredit the evidence of the witnesses on facts on this issue. 9. In support of the prosecution case, PW.1, wife of the deceased, claims that on the date of incident at about 06:00 AM, the deceased went out for walking and she also followed him to fetch water from the bore well and when the deceased reached the boring pump in B.C. Colony, all the accused armed with deadly weapons attacked the deceased uttering to kill him. Thereafter, she raised cries loudly and on hearing her cries, PWs.2 to 4 came there along with others and they had also seen the accused attacking the deceased and running away. She claims to have given report Ex.P1 drafted by PW.7, after the police came to the scene. In cross-examination, the veracity of the witness was sought to be discredited on her conduct in not reacting immediately after the attack and it was also sought to be elicited that the case was foisted at the instance of Laxmikantham, whom her husband supported in the elections. It was also elicited that she did not fell on her husband and wept and she sat silently and coolly. The evidence of PWs.2 and 3 is also to the effect that when they were going to the bore pump in the B.C. colony, they heard the cries of PW.1 and rushed there and saw the accused attacking the deceased and going away after the attack. The evidence of PW.4, who is the daughter of PW.1 and the deceased, is also to the effect that her father proceeded for walking and her mother also followed him and on hearing the cries of her mother, she went near the scene and found her father dead. She also claims to have noticed nobody, but the accused. The evidence of PW.5 is that on the date of incident, he was going for coolie work in the land of one Goud and after going some distance towards B.C. Colony, he heard the cries and he saw back and noticed A1 to A6 hacking the deceased. He also found PWs.1 to 4 near the place of offence and after hacking, all the accused ran towards the outskirts of the village. In the cross-examination also, his presence at the time of incident was not disputed and he also denied that he belongs to any political party. He also stated that DW.1 came to the scene after the incident and he claims that he did not inform him about the incident. The evidence of PW.6, who is a Panchayat Secretary, is that on 16.11.2004 at about 06:30 AM, one Hussain, who was also the Talari of the Village Beeravolu, informed him about the death of the deceased and he proceeded to the village and reached there at about 07:15 AM, where he found several persons. At about 08:00 AM, police came to the scene. He was claimed to be present at the time of inquest and according to him, at the time of inquest, it was opined that the deceased was hacked to death by Maddukathulu, but it was not known as to who hacked the deceased by the time of inquest. He also spoke about apprehending A1, A1 giving voluntary confessional statement, producing the weapon used in the commission of offence and also the blood stained clothes. The evidence of PW.7 is that he drafted Ex.P1 to the dictation of PW.1 after the police came to the village. The evidence of PW.8 is that he conducted post-mortem examination over the dead body of the deceased and found the following injuries: “External injuries: 1. A cut injury of 8” x 2” x bone deep on the left fore arm distal dorsal part extending to the dorsal part of the wrist and hand. Wound is covered clotted dried blood. 2. A cut injury of 8“ x 1” x bone deep on the left upper arm posterior lateral part. Wound is covered with dried clotted blood. 3. A contusion of 2*½” x 1” on the left shoulder region. 4. A cut injury of 9” x 1” x bone deep on the central posterior parieto occipital region of the scalp. Vertically wound is covered with dried clotted blood. 5. A cut injury of 6” x 1” x bone deep on the left posterior perito occipital region of the scalp vertically. Wound is covered with dried clotted blood. 6. A cut injury of 8” x 1” x trachea and muscle and blood vesicles deep on the anterior upper part of the neck cutting trachea and left carotid vessels and left side muscles of the neck. Wound is covered with dried clotted blood. 7. A cut injury of 4” x ½” x muscle deep in the anterior of part of neck. 1” below injury No.6. 8. A cut injury of 2½” x muscle deep on the anterior part of the neck 1½” below the injury No.7. 9. A cut injury of 9” x 1” x bone deep on the left cheek, parotid region lower part. Wound is covered with dried clotted blood. 10. A cut injury of 10” x 1½” x bone deep on the left side of forehead extending on to left mastoriod region left period region upper part and cutting the ear pinna into 2 parts. Wound is covered with dried clotted blood. 11. A cut injury of 6” x 1” x bone deep on the upper part of chin, transversely wound is covered with clotted dried blood. Internal injuries: Skull: both parietal both occipital bones, left temporal and mastorid bones are fractures. Brain: Intra cerebral Hemorrhages are present in both cerebral semi sphereo. Neck: Trachea and left side carotid artery and vein are cut. Chest: Both the lungs and heart are congested. Abdomen: Stomach, intestines, liver both kidneys spleen and other abdominal, viscera are congested Bladder: is empty. Genitalia is normal. Regor mortis was present.” He opined that the deceased died due to multiple injuries and injury to the head. The evidence of PW.9 is that he was the Sub-inspector of Police and on 16.11.2004 at about 07:00 AM, when he was in Rudravaram Village a telephone call was received from DW.1 stating about the death of the deceased. He claims to have made general diary entry and proceeded to the scene. At about 08:00 AM, PW.1 gave a report about the death of her husband. It is Ex.P1 and then he returned to the Police Station and got the complaint registered and again came to the scene at about 11:00 AM, by which time the Circle Inspector of Police came there and he handed over the investigation to him. The evidence of PW.10, who is the Inspector of Police, is about the investigation done by him in this case. 10. As against this evidence, the evidence of DW.1, Talari Venkatapathi, is that he was the village servant and on the date of incident, he noticed the dead body of the deceased and immediately he informed the Sub-inspector of Police, Rudravaram Village. When he noticed the dead body, there was nobody and the time when the deceased was killed is at 06:00 AM. The deceased was said to be residing at 70 to 80 yards from his house towards further east. So also, the evidence of DW.2 is to the same effect. 11. The learned Senior Counsel for the appellants contends that the complaint, Ex.P1, which is said to have been lodged at the scene of offence was done with deliberations with Laxmikantham, whose presence is admitted even at the time of inquest and that the inquest report and the Ex.P1 were culmination of his action in implicating the accused. It is also his further contention that even before Ex.P1 could be lodged at the scene of offence, there is admission by PW.9 that he has received a telephonic message from DW.1, who is the village servant, and the said information clearly shows that the offenders were not known and only the dead body of the deceased was found near the scene of offence. So also, the evidence of DW.2 supports the version of the accused and therefore, the prosecution case is surrounded by suspicion. 12. So far as this aspect is concerned, no doubt, DW.1 claims to have informed the police on telephone and this is supported by the evidence of PW.9. In fact the lower Court also proceeded on the fact that there was information to the police about the incident. The question is whether such an information, which was given to the police, is a prohibition to receive Ex.P1 into consideration. 13. The learned senior counsel for the appellants contends that it is hit under Section 161 Cr.P.C. and cannot be looked into. It is to be mentioned that any information given to the police under Section 154 Cr.P.C. should be given with some particulars about the nature of offence, the person who was affected and the person who was giving the information. But a reading of the evidence of PW.9 itself discloses that the information received by him is not sufficient to register a crime and he did not register the crime. Therefore, it is only a cryptic and vague information about the offence and without any particulars and therefore, PW.9 could not register the case. Furthermore, the police have not produced the General Diary entry and no effort was also made by the accused to summon the General Diary entry to know what is the nature of the information in fact that was recorded in the General Diary. The evidence of PW.2 clearly shows that he has no knowledge or looked into the entry in General Diary and therefore, it cannot be stated that even before giving Ex.P1, police have got specific and detailed information about the crime and as such Ex.P1 could not be looked into on this aspect. The learned Sessions Judge relied on a Bombay High Court decision in Haresh Mahadeo Kamble v. State of Maharastra[1], in which he incidentally relied upon the decision of the Hobourable Supreme Court in Tapindersingh v. State of Punjab (AIR 1970 SC 1566), laying the guidelines under what circumstances the General Diary entry will prohibit the receipt of the subsequent information and as to when it was hit under Section 161 Cr.P.C. It clearly lays down that a mere cryptic and without particulars, statements of the information given to the police, does not come under the prohibition of Section 161 Cr.P.C., and therefore, shows no bar to receive Ex.P1. Added to that, if really DWs.1 and 2 have noticed the dead body at the scene of offence, DW.1 after he has seen the dead body, first he should have informed the Panchayat Secretary, PW.6, instead of another. Furthermore, the evidence of PW.6 shows that at the scene of offence when he came there he found DW.1 and he asked him to inform police and that at that point of time DW.1 informed to PW.6 that he informed to police about the incident, which is now sought to be relied on by the accused. Therefore, there arise a doubt about DW.1 giving information to the police. The law does not prohibit the receipt of Ex.P1 as evidence into consideration. Therefore, we have no hesitation in holding that the lower Court rightly rejected the contention of the accused. 14. Furthermore, the learned counsel for the appellants seriously contends that because of the factions in the village there is every scope for implicating the accused. The material on record clearly goes to show that Laxmikantham, who has contested against A2, was bodily present at all times and he is the man behind implicating the accused. Evidently, from the material on record, at about 08:00 AM, the Sub- inspector of Police came to the village and recorded the statement of PW.1 and went back to police station and registered the complaint at 09:30 AM and on the same day at about 04:00 PM, it is received by the Court at Allagadda. Naturally, when a serious crime affecting the political rivalry is being investigated into, the delay just sought to be taken advantage by the accused cannot be considered as an abnormal delay showing doubt about the truthfulness of the prosecution case. By any standard, there is neither delay in registering the case nor sending it to the police and furthermore, when there are no circumstances surrounding or suspecting the truthfulness of the complaint, which was taken at the scene with some delay of being hours, will not shatter the prosecution case. 15. The learned counsel for the appellants contends that the statements of PWs.1 to 5 are parrot like versions in respect of the prosecution case and there is also some difficulty even to shatter the evidence and to discredit them in cross-examination and therefore, without much particulars it could not have been taken into consideration. 16. We are unable to agree with the contention of the learned counsel for the appellants. Evidently, PWs.1 to 5 are all neighbours and villagers. In fact in the cross-examination of PWs.2, 3 or 5, their interestedness to implicate the accused could not be shown and from the tenor of the cross-examination, they appear to be more independent by themselves than being affiliated to the political groups in the village. PWs.1 and 4 are wife and daughter of the deceased and there is no reason to disbelieve the evidence of PW.1 that she was going to the bore well to fetch water in the morning at about 06:00 AM. It is also a natural thing, which happens in the morning in the villages. Furthermore, in the morning at about 06:00 AM the surrounding persons in the neighbourhood will be moving in the village and. Be that as it may, the fact that PWs.2, 3 and 5 were in the gathering at the scene of offence and in the morning time they could have got an opportunity to see the crime cannot be lost sight. The learned counsel appearing for the appellants contends that PWs.1 and 4 did not weep and they did not interfere and therefore, it is an unnatural conduct. This statement of the learned counsel for the appellants also cannot be taken into consideration for the reason that PWs.1 and 4 are wife and daughter of the deceased respectively and they were already frightened by the brutal act of the accused and their interference will only endanger their life and it is unnatural for us to accept that they will go and interfere. Therefore, the evidence of PWs.1 and 4 clearly shows that even though they did not weep they were at the feet of the deceased and were in agony. Therefore, there is nothing to suggest that the conduct of PWs.1 and 4 is unnatural and thereby, their presence at the scene of offence is doubtful. Further, the learned counsel for the appellants placed reliance on the evidence of DWs.1 and 2 about the factum of noticing nobody at the scene of offence which probablises the contention of the accused that the First Information Report and inquest report are manipulated one. Learned counsel for the appellants strongly contends that the evidence of PW.7, who is said to be present at the inquest, discloses that by the time of inquest the persons who are responsible for the attack were not known. In fact this part of the statement of PW.7 is against the contention in Ex.P2, whereunder in coloumn No.9, the persons who are responsible for the death of the deceased including the names of the accused have been clearly given. It is also to be notified that DW.1, who is said to be present and not seen any body, is a witness apart from Shaik Hussain, who is said to have given information to PW.6. Therefore, the accommodating statements, hither and there, from the witnesses will not destroy the substratum of the prosecution case. When the witnesses are natural and vital, we have no hesitation in holding that the evidence of PWs.1 to 5 is solitary and convincing that the accused had committed the offence. 17. So far as the other circumstance sought to be canvassed by the appellants is that in the FIR - Ex.P8, so far as A6 is concerned, there is correction, because with regard to A1 to A5, their fathers’ name were written in Telugu, whereas when it comes to the father's name of A6, it was put as ‘S/o.’ and there was an attempt to correct to Telugu and thereby that intended to implicate father of A6 and not A6 and the accused is entitled for benefit of doubt. But the evidence of PW.7 clearly explains as to how the mistake occurred and there is no gap between the name of A6 and ‘S/o.’ as mentioned in English, to infer that there was any manipulation or attempt to manipulate on the part of PW.1 or PW.7 to implicate the accused. Furthermore, a confessional statement is given by A1 and in pursuance of his confession, MOs.9 and 10, which are the shirt and pancha, were seized and they were sent for examination to Forensic Science Laboratory along with MOs.2 and 3, the clothes of the deceased. It is useful to note that Forensic Science Laboratory reports shows that human