THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Criminal Appeal No.1516 of 2007 JUDGMENT: (per the Hon’ble Sri Justice G.Krishna Mohan Reddy) 1. This Appeal is directed against conviction and sentences imposed against the appellants-A1 to A7 in Sessions Case No.4 of 2004 dated 1.10.2007 on the file of the Court of II Additional Sessions Judge, Kadapa at Proddatur. 2. The appellants are the accused and the respondent is the complainant in the Sessions case. For the sake of convenience, the parties hereinafter be referred to as they are arrayed in the Sessions Case. 3. The prosecution case is as follows: The accused are the residents of Jangalapalli village. The accused and one Pedda Dastagiri Reddy, the sarpanch of the village are brothers. The accused belong to Congress Party. The deceased Vangala Chinna Veera Reddy (for short ‘deceased’) was also resident of same village and a follower of Telugu Desam Party. Due to panchayat elections, ill-feelings developed between the two groups. On 24/25.6.2003 the deceased was sleeping on a cot along with their daughter, P.W.1, his wife was sleeping on another cot along with their another daughter and P.W.2 another villager was also sleeping in front of the house of the deceased and P.W.1. At about 2 a.m. all the accused having formed unlawful assembly of themselves armed with deadly weapons like hunting sickles with a common object to kill the deceased went to the house of the deceased and A1 hacked on the stomach of the deceased with hunting sickle and when the deceased fell down from the cot, the other accused hacked him indiscriminately with hunting sickles causing severe bleeding injuries to him. When P.W.1 got up and tried to intervene, A1, A3 and A5 attacked and dealt blows against her with hunting sickles and caused bleeding injuries on her right hand, left side of her chest and left thigh. Further, as P.W.2 also intervened, she was also beaten by which she received injuries. Further P.W.3, Yacob and SivaReddy who were sleeping in the house, woke up on hearing cries and went to the spot, but as the accused threatened them, they could not intervene in the matter. The accused went away leaving one blood stained sickle at the scene of offence. Further then P.W.1 was informed that younger brother of the deceased namely, Bala Veera Reddy was sacked by Dastagiri Reddy and others. Further, thereafter the injured were taken to the Government Hospital, Jammalamadugu and there, the deceased was declared dead and P.W.1 and P.W.2 were given treatment for their injuries. On a statement given by P.W.1, the case was registered in Crime No.31 of 2003 of Peddamudium Police Station, Kadapa district under Sections 147, 148, 324, 302 IPC read with Section 149 IPC. Further, P.W.9 Inspector of Police took up and conducted the investigation of the case. Further the dead body was sent for post- mortem examination which was accordingly conducted. Further, during the course of investigation, the police arrested the accused and seized five hunting sickles from A1 under cover of panchanama, ultimately, the Inspector of Police filed charge sheet. They were tried for charges under Sections 147, 148, 326 read with Section 149 and 302 IPC without a specific charge under Section 302 read with Section 149 IPC. 4. On behalf of the prosecution, P.Ws.1 to 9 were examined and marked Exs.P1 to P.17 and M.Os.1 to 16 were marked. On behalf of the defence, none was examined but Exs.D1 to D4 were marked. After considering the matter, the Sessions Court found the accused guilty of committing the offences punishable under Sections 147, 148, 302 and 326 read with Section 149 IPC and accordingly convicted them under Section 235 (2) Cr.P.C. and sentenced them to undergo rigorous imprisonment for three months under the first and second counts each and rigorous imprisonment for life each under the third count and rigorous imprisonment for two years each under the fourth count and also directed that all the sentences should run concurrently, whereby the present appeal is filed. 5. Here the evidence of PWs.1 to 3 is to be mainly examined to establish the incident because they claim to be the direct witnesses of it. 6. The testimony of PW.1 is as follows: On 24.06.2003, she and her younger daughter were sleeping on a cot and her deceased husband and their elder daughter were sleeping on another cot and Sakunthalamma, their neighbour was also sleeping infront of their house at Jangalapalli village and because one of the daughter was infant, they switched on a light, whereas she deposed in her cross-examination that there was light to a holder at the door of the house and there was no meter outside the house. Further, she deposed in her chief examination that at about 2 a.m., as she heard a sound, she woke up and found A1 to A7 with hunting sickles surrounding the cot of the deceased. Then A1 hacked on the stomach of the deceased proclaiming that the deceased should be killed and thereby the deceased fell down from the cot and then all the accused hacked the deceased indiscriminately. Further she intervened to save the deceased thereby A1 hacked on her right hand, A3 hacked on the left side of her chest and A5 hacked on her left thigh and caused injuries. Further, when P.W.2 came to her rescue, she was also hacked and hence she received injury on her left little finger. Thereafter A1 to A7 fled away. Further, while they were going away, a sickle stained with blood fell down. Further she saw them going away by virtue of a street bulb existing at a distance of 4 or 5 feet. She also deposed that PW.3, Yesob and Sivareddy, who were sleeping in the upstairs of their house, came down and they were threatened by A1 to A7. Further, then one Papa Veerareddy came and informed her that the younger brother of the deceased, namely, Bala Veera Reddy was killed by Dasthagiri Reddy and others. Further later her husband’s brother Bala Veera Reddy was brought to their house in a tractor with bleeding injuries and then she, PW.2 and both the deceased were taken to the Government hospital, Jammalamadugu by the same tractor by PW.3 and Yesob for treatment. Further, the Sub-Inspector of Police met her and recorded her statement and obtained her left hand thumb impression because her right hand was not functioning, as she received injury, as in Ex.P1. In her cross-examination, she deposed that they took food at about 8.30 or 9.00 p.m. during the previous night. Further she deposed that a bontha was placed on the cot of the deceased and the deceased received one blow while he was on the cot and he received other blows after he fell down on the slab and rolled down to earth portion and then the bontha were not stained with blood and the slab was stained with blood. She also deposed that the blood coming from her injuries also fell on the earth. Further, according to her in her chief examination itself, the motive for the incident was political rivalry following contest between her brother-in-law Bala Veera Reddy and Pedda Dasthagiri Reddy for the post of Sarpanch of the village which her brother-in-law lost. She also deposed that as the deceased desilted a well with the help of villagers under Sramadanam Scheme, Pedda Dasthagiri Reddy was jealous of that and was also jealous of the growing influence of the deceased and infact because of that reason the incident took place. Further, she identified the wearing apparel of the deceased marked as MOs.1 to 5. As per Ex.D1, P.W.1 stated to the police that her brother-in-law Papa Veera Reddy came running and informed that the other deceased was also hacked by some hunting sickles in front of his house. As per Ex.D2 P.W.1 stated in Ex.P1 report that on hearing noise P.W.2 came and objected A1 to A7 and then they cut her left hand fingers with knives which were in their hands. As per Ex.D3 she stated to the police accordingly i.e. as in Ex.A2. She denied that she stated to the police as in Exs.D1 and D3 whereas P.W.9 confirmed that P.W.1 deposed to that effect respectively. 7. P.W.2 and P.W.3 corroborated the evidence of PW.1 by and large. In her cross-examination, P.W.2 also deposed that her cloths were not stained with blood and no blood was collected on the cot of the deceased. On the other hand, PW.3 further deposed that himself and Yesanna were sleeping in the upstairs of the house of PW.1 on that day and at about 2 a.m. he heard sounds and shouts and then they came down and found a bulb put on in the varandah of the house and also found street bulb burning outside and not hanging to any pole and then he found A1 to A7 hacking the deceased with hunting sickles and as A1 to A7 threatened them with dire consequences armed with hunting sickles, they could not interfere in the matter. Further P.W.2 deposed in her cross-examination that there were no switchboard and meter to the outer wall of the house. She admitted in her cross-examination that she did not state to the police that Yesanna and others were sleeping in the upstairs of the house, whereas according to P.W.1, P.W.3 Yacob and Siva Reddy were sleeping in the house. P.W.3 did not speak about Siva Redy in the house then. 8. P.W.1 and P.W.3 denied in their cross-examination that there was no bulb in the verandah of the house and there was no street bulb and there were also no cots at that time at the house of the deceased respectively. Further, P.W.3 admitted that he did not state to the police that A1 to A7 threatened them armed with hunting sickles and they left one hunting sickle while going. As per Ex.D4, he stated to the police that he was living by doing cooly work near Chinna Veera Reddy house, he denied that he stated to the police accordingly, whereas P.W.9 testified that P.W.3 stated to him as in Ex.B4. 9. With regards to the registration of the case and scene of offence, it is the testimony of P.W.8-S.I. of Police that on 25.6.2003 at 4.00 a.m., while he was Incharge of Peddamudium Police Station, he received hospital intimation (Ex.P5) about the death of the deceased and also about P.W.1 receiving injuries and he went to the hospital and found the dead body of the deceased and on the instructions of the Inspector of Police, who also came there, he recorded the statement of P.W.1 as in Ex.P.1 from 4.45 to 6.00 a.m. and later he returned to the Police Station at Peddamudium and on the basis of Ex.P1, he registered the case in Crime No.32 of 2003 on his file and Ex.P.12 is the F.I.R. In his cross- examination, he denied that the report and F.I.R. were not prepared as stated and both of them were brought into existence at 11.30 a.m. under the instructions of T.D.P. Minister and other T.D.P. Personnel and Ex.P1 was not given by P.W.1. On the other hand, as per the endorsement on the F.I.R. the concerned Magistrate received it at 1.45 p.m. on the date of incident which delay has not been explained in fact by the prosecution. 10. On the other hand, P.W.9 deposed that on 25.6.2003 at about 9 a.m. he went to the Government Hospital, Jammalamadugu and he seized the blood stained clothes of P.W.1 (M.Os.1 to 5) and he took up the investigation of the case and it is his further evidence that during the course of the investigation of the case, he visited the scene of offence in front of the house of the deceased with Door No.3/166 after visiting the village at 3 p.m. and he prepared sketch of the scene of offence i.e. Ex.P.13 and seized the blood stained hunting sickles, two glowing bulbs, one fixed in front of the house and the other fixed to a nearby electric pole, stone, blood stained earth and control earth (M.Os.6 to 11) in the presence of mediators and Ex.P.4 is the corresponding report. In his cross-examination, he deposed that in the panchanama number of cots and so also beds and bonthas existing there were not mentioned and he did not find any holders or bulb point or meter fixed to the outer wall of the house and he found electric wire of about one or two inches hanging from a pipe in the verandah of the house, which was not seized. P.W.4 who is one of the signatories to the panchanama, some what corroborated his evidence. He deposed further that hunting sickle and three electric bulbs were seized at the scene of offence and he did not speak about the seizure of other objects as deposed by P.W.9. 11. In Ex.P4 it is stated that P.W.9 seized a bulb hanging from the holder of the street pole situated at a distance of 32 feet from the scene of offence on the western side near ‘sandhu rastha’ which is shown in the sketch and also a bulb hanging from a current pipe fixed to the wall in front of the house which is not shown in the sketch, but none of the bulbs or the electrical material was marked before the trial Court. Further, the evidence of P.W.1, P.W.3 and P.W.9 that there was a bulb only in the verandah of the house which is also not shown in the sketch and the evidence of P.W.2 that there were no switchboard and meter to the outer wall of the house are contradictory to what is contained in Ex.P4 that there was a bulb fixed to the outer wall of the house. In these circumstances, it is difficult to believe that there was a bulb in the verandah of the house or fixed to the outer wall of the house. 12. Further, P.W.9 deposed that at 10 a.m. he conducted inquest over the dead body in the hospital and seized the blood stained clothes of the deceased in the presence of mediators and then it was opined that the deceased died due to the injuries received by him and accordingly inquest report was prepared, whereas Ex.P3 is the admissible portion of it. 13. P.W.6 Medical Officer deposed that on receiving Ex.P5-requisition from the Police, she conducted post-mortem examination on the dead body of the deceased and found the following incised injuries: 1. An injury on the right side of his face measuring 10 cm x 2 cm x bone deep beginning from the front of his right ear and going to the nose cutting the tip of the nose, placed transversely. 2. An injury on the left side of his forehead near his hairline placed transversely measuring 5 cm x 2 cm x skin deep. 3. An injury on the left temporal region placed transversely measuring 8 cm x 1 cm x bone deep. 4. An injury on the left temporal region measuring 6 cm x 1 cm x bone deep extending to the back of his occipital region 1 cm above the injury No.3. 5. An injury on his right occipital region measuring 8 cm x 2 cm x bone deep placed transversely. 6. Another injury on the right side measuring 18 cm x 4 cm x bone deep from the occipital region to the frontal region. 7. An incised injury on his head from the back to the vault in the midline measuring 15 cm x 3 cm x bone deep. 8. An incised injury on the back of his head measuring 11 cm x 2 cm x bone deep below the right ear. 9. An injury on the right back of his head measuring 6 cm x 1 cm x skin deep 1 cm below injury No.8. 10. An injury on the right back side below the injury No.9 measuring 8 cm x 2 cm x bone deep. 11. An injury on the back of his neck measuring 6 cm x 1 cm x skin deep extending on to the right side shoulder transversely. 12. An incised injury on his scapular region measuring 10 cm x 1 cm x skin deep on the right side. 13. An injury on the right backside of the upper border of his Illiacrust measuring 5 cm x 1 cm x skin deep. 14. An incised injury on his right buttock measuring 8 cm x 2 cm placed transversely. 15. An injury on the left side of his lumbar region measuring 4 cm x 3 cm x skin deep placed vertically. 16. An incised injury on the back of his right thigh measuring 5 cm x 1 cm x muscle deep placed transversely. 17. A punctured wound on the right side of hypocondrium measuring 8 cm x 2 cm x peritoneal deep placed obliquely. 18. An injury on his right elbow measuring 12 cm x 5 cm x muscle deep on front. 19. An injury on the back of his left shoulder measuring 6 cm x 1 cm x skin deep. 20. An injury on the outer side of his left shoulder measuring 12 cm x 2 cm placed transversely. 21. An injury on the lower third of his left upper arm placed vertically measuring 7 cm x 1 cm x skin deep. Further, he deposed that the deceased would appear to have died of cardiac aspect due to hemorrhage and injuries to his brain and skull bone about 12 to 18 hours prior to the post-mortem examination. In his cross-examination, he deposed that it takes one to two hours for the partial digestion of food and he also deposed that his bladder was empty prior to the incident. He further deposed that on 25.6.2003 itself at 3.20 a.m. he examined P.W.1 and found the following injuries. 1. An incised injury on her right forearm measuring 15 cm x 10 cm x bone deep, transversely placed in the middle third. 2. An incised wound on the left side of her chest measuring 13 cm x 5 cm x fat deep on chest below the left arm pits. 3. An incised injury on the left side of her thigh measuring 16 cm x 8 cm x muscle deep on the external side of her knee. 4. An abrasion on the upper side of her right thigh measuring 3 cm x 1 cm. Further, he deposed that the matter was referred to a Radiologist (P.W.7), who gave report that she received fracture of the radius of her right forearm and the injury No.1 was grevious in nature and the other injuries were simple in nature and were caused 1 to 4 hours prior to the examination. Further, he issued Ex.P8 wound certificate for her. Further P.W.7 Radiologist in the hospital deposed that on 25.6.2003 on the requisition of the C.M.O. of their hospital X-Ray of the right forearm, left thigh and knee of P.W.1 was taken and he noted fracture of the radius of her forearm only and Ex.P.9 and P10 happened to be the corresponding X-Ray and Ex.P11 happened to be his opinion. Further P.W.6 deposed that on the same day at 4.30 a.m. he examined P.W.2 and found; 1. A contusion on the lower 1/3rd of the index finger of her left hand measuring 3 cm x 2 cm and X-Ray No.20/2003 revealed fracture of the first phalanx of her right index finger. Further he deposed that the injury was grievous in nature and was aged 4 to 6 hours prior to the examination and issued Ex.P7 wound certificate. Further, P.W.6 deposed that all the inside injuries referred were possible by means of hunting sickles and further the injury No.4 caused to P.W.1 was possible by a fall on a hard surface. 14. There is absolutely no dispute with regard to the scene of offence, the inquest and post-mortem examination over the dead body and hence those circumstances are accepted. 15. Basing upon the medical evidence, it is necessary to ascertain the time of the incident, which is relevant for proper appreciation of the prosecution version ultimately. Whereas the ocular evidence asserts that the incident took place at about 2 a.m. and P.W.1 affirmed that at about 8.30 or 9.00 p.m. during that night she and the deceased had meals the medical evidence determines that partial digestion of food takes place in 1 to 2 hours, which makes it categorical that the incident might have taken place between 10.00 and 11.00 p.m. but not by 2 p.m. and further the medical evidence emphasizes that the post-mortem examination was conducted from 1.05 p.m. on 25.6.2003 and the death would have occurred about 12 to 18 hours prior to the same examination, which comes to 7.00 p.m. to 1.00 p.m. during that night. In addition to that, Ex.P.5 hospital intimation sent to the police provides that the deceased alleged to have received injuries by means of hunting sickles at 1.00 p.m. on 25.6.2003. Further in Ex.P7 wound certificate of P.W.2 at first the time of incident was written as 1.30 a.m. or 2.30 a.m. but later it was changed to 4.30 a.m. whereas in Ex.P8 wound certificate of P.W.1 it was noted as 1.00 a.m. on that day. 16. In any case, the deceased and P.W.1 would have taken food much prior to 10 p.m. on that day. Therefore, the medical evidence clearly falsifies that the incident took place at 2 p.m. during that night. Much significance is to be given to the fact that different timings were given at different stages in this context. These circumstances amply establish that the time of incident was shifted to 1.00 p.m. or 2.00 p.m. for the reasons best known to the main prosecution witnesses. It must have been done deliberately infact. 17. The learned defence counsel mainly attacks the findings of the trial Court on the following grounds. (1) There are major discrepancies in the evidence of P.Ws.1 to 3 which are fatal and P.W.3 and others were not members of the family of the deceased and there is no reason to believe that they would have stayed in the house during that night being not the members of the family of the deceased. (2) Even though the prosecution claims that electrical bulb or bulbs was/were seized at the scene of offence, no such material is produced before the Court and hence there is no good basis to say that there was sufficient light to identify the actual culprits. (3) It is a case of faction and therefore an attempt to implicate A1 to A7 or some of them cannot be ruled out unless on proper scrutiny of the evidence recorded, it could be ascertained that the prosecution version is true. He also draws the attention of this Court in this context to the factors that no electrical material was seized to establish the existence of light and thereby to establish the identity of A1 to A7 as the partners of the crime and there was unexplained delay of about 8 hours in sending the F.I.R. to the concerned Magistrate even supposing that P.W.8 recorded the statement of P.W.1 about 6 a.m. on that day and the time of incident was changed from 10.30 or 11.00 p.m. to 2.00 p.m. while affirming that those circumstances are sufficient to hold that A1 to A7 were falsely implicated. (4) The conviction and sentences were recorded only with regards to the charge under Section 302 IPC and there is no separate charge under Section 302 IPC read with Section 149 IPC so far as causing the death of the deceased with a common object is concerned, in the absence of which, unless specific overt-acts of each of A1 to A7 were sufficient to cause the death, none of them can be convicted and sentenced for the charge under Section 302 IPC and