IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.670 & 825 of 2007 DATE: .02.2011 Crl.A.No.670 of 2007 Between: Gandla Ravinder …… Petitioner/A-1 And State of A.P. rep. by its Public Prosecutor …..Respondent Crl.A.No.825 of 2007 Between: Syed Ali …… Petitioner/A-2 And State of A.P. rep. by its Public Prosecutor …..Respondent HONOURABLE SRI JUSTICE V.ESWARAIAH & HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL Nos.670 & 825 of 2007 COMMON JUDGMENT :(per Hon’ble Sri Justice Samudrala Govindarajulu) These two criminal appeals are filed by the accused 1 and 2 (A-1 and A-2) respectively aggrieved by their conviction for the offence under Section 302/34 I.P.C and sentence of Rigorous Imprisonment for life and fine of Rs.5,000/- each passed by the V Additional Sessions Judge, Warangal by judgment dated 11.05.2007. 2) The deceased Samudrala Suresh was the surpanch of Janpaka gram panchayat in Warangal District and he belonged to congress party. A-1 also belongs to Congress Party. On 09.10.2005 at about 12.00 noon the deceased was supervising when an electrician was arranging bulbs on street poles near the shop of P.W-6 in Janpaka village. It is alleged that when P.Ws 2 to 4 were proceeding on the road and discussing with the deceased, A-1 stabbed the deceased with knife from back side and that when A-1 called A-2, A-2 also came there from nearby lane and stabbed the deceased indiscriminately and that the deceased succumbed to the injuries when he was being shifted to the hospital in an auto. It is alleged that A-1 and A-2 committed the offence out of grudge towards the deceased. It is the prosecution case that A-1 was not having ration card and also required income certificate, but the deceased did not help him to obtain the same and that a Lambada woman was residing by the side of A-1’s house and she was having illicit intimacy with A-1 and that the said woman was selling illicit arrack (gudumba) and that the deceased asked her not to sell Gudumba and destroyed available Gudumba when the village ladies complained to the deceased about their husbands consuming Gudumba and creating nuisance. It is further case of the prosecution that about six months prior to the offence, when A-1 and A-2 were standing in front of house of the deceased, A- 2 started abusing P.W-1 who is wife of the deceased, for which P.W-1 as well as the deceased questioned A-2 and that A-2 further abused P.W-2 in vulgar language and both A-1 and A-2 proclaimed that they would kill the deceased, and that A-2 brought one bottle and that P.W-1 and the deceased lodged report in Geesugonda police station in that regard. According to the prosecution, because of the said previous disputes, A-1 and A-2 killed the deceased. 3) P.W-1 after receiving information about death of her husband, went to Police Station on the same day at about 14.00 hours and gave Ex.P-1 report to P.W-12 Sub-Inspector of Police, Geesugonda Police Station. He registered the same as case in Crime No.99 of 2005 under Sections 148, 302/149 I.P.C and issued Ex.P-11 F.I.R. P.W-13 who is the Inspector of Police, Mamnoor circle took up investigation in this case. P.W-13 conducted inquest on dead body of the deceased at M.G.M. Hospital, Warangal in the presence of panchayatdars including P.W-8 under the cover of Ex.P-7 inquest report. M.Os 5 to 8 are wearing apparel of the deceased. Exs.P-12 and 13 are the photographs of the deceased. During inquest, P.W-13 examined P.Ws 2 to 5 also and recorded their statements. Subsequently he went to scene of the offence at Janpaka village and observed the scene and got Ex.P-8 scene of offence Panchanama prepared in the presence of mediators including P.W-9. Ex.P-15 is the rough sketch of the scene prepared by P.W-13. From the scene, P.W-13 seized M.Os 1 and 2 knives with which the deceased was killed, under the cover of Ex.P-9 panchanama. Exs.P-2 to P-6 are photographs of the scene taken by P.W-7 photographer at that time. P.W-11 is professor in Forensic Medicine, Kakatiya Medical College and he conducted Post Mortem Examination on the dead body of the deceased and issued Ex.P-10 post mortem report opining that the deceased died due to multiple injuries. P.W-11 found 18 ante-mortem injuries on the dead body which include 7 stab injuries and 11 cut lacerations on different parts of the body and they are as follows: 1. One stab injury measuring 2x1 cms x chest cavity deep present over the right side chest 14 cms below the right collar bone and 5 cms away from the nipple. Injured the right lung about 200 cc of blood fluid present in the chest cavity. 2. One stab injury measuring 5 x 3 cms x cavity deep present only right side chest, 20 cms below the clavical and 6 cms from the mid line injured the rib and muscles and lung. 3. one stab injury measuring 3 x 2 cms x muscle deep present over the epigastic area. 4. One stab injury measuring 4 x 2 cms x cavity deep present over the left side chest 21 cms below the clavicle 4 cms from mid line injured the rib muscle and lung about 150 cc blood side present in the chest cavity. 5. One stab injury measuring 3 x 2 cms x muscle deep present over the left nipple. 6. One stab injury measuring 3 x 2 cms x cavity deep present over the left chest 3 cms on the left cavity. 7. One stab injury measuring 5 x 4 cms x x peretonial cavity deep present over the abdomen 4 x cms above the umbilicus injured the muscle and peritoneal and intestines. 8. One cut laceration measuring 8 x 3 cms x bone deep present over the right side back of the head. 9. One cut laceration measuring 8 x 3 cms x bone deep present over the right side back of the head. Injured muscle and occipital bone. 10. One cut laceration measuring 8 x 3 cms x muscle deep present over the back of neck. 11. One cut laceration measuring 8 x 2 cms x muscle deep present over the upper part of the back of the right chest. 12. One cut laceration measuring 9 x 4 cms x muscle deep present over the lateral aspect of left arm. 13. One cut laceration measuring 7 x 2 cms x muscle deep present over the right arm in its middle. 14. One cut laceration measuring 6 x 2 cm x muscle deep present over the right arm in its lower one third. 15. One cut laceration measuring 9 x 2.5 cms x bone deep present over the left side face, involving left ear injured the muscle and mandible and maxilla. 16. Cut laceration measuring 14 x 2.5 cm x bone deep present over the left palm in its middle. 17. Cut laceration measuring 14 x 15 cm x bone deep present over the right palm in its base of the fingers. 18. Cut laceration measuring 2 x 1 cm x muscle deep present over the left index finger in its middle. On 7.11.2005 P.W-13 arrested A-1 and A-2 and seized M.Os 3 and 4 blood stained shirts respectively from them. The seized material objects were sent to Forensic Science Laboratory for analysis. Ex.P-14 is F.S.L. Report. After completing investigation, P.W-13 filed charge sheet before the Magistrate. 4) As pointed earlier, P.W-1 was not an eye witness to the occurrence; and on information furnished to her, she gave Ex.P- 1 report to the police. In Ex.P-1 report, P.W-1 named A-1 and A- 2 as well as six others as persons who killed her husband by stabbing with knives. It is contended by the appellants’ counsel that even though 8 persons were named as assailants in this case in Ex.P-1 report, the police deleted six persons and have chosen to file charge sheet against A-1 and A-2 only. It is also pointed that in Ex.P-7 inquest report also, in Column No.15, the panchayatdars during inquest opined that the deceased was killed by A-1 and A-2 and six others totalling 8 persons. P.W-13 gave reasons as to why charge sheet was filed against A-1 and A-2 only and why other six persons were deleted. P.W-13 says that the complainant (P.W-1) was not an eye witness to the incident and that P.W-1 mentioned names of 8 persons including A-1 and A-2 as if they murdered her husband, but the eye witnesses P.Ws 2 to 6 have stated names of A-1 and A-2 only as the participants in the offence and that P.W-1 falsely implicated the other persons. Not only during investigation, but also during trial, the eye witnesses P.Ws 2 to 6 stated that it was only A-1 and A-2 who killed the deceased. But, P.W-1 was also examined during inquest. During investigation as well as during trial in the lower Court, P.W-1 reiterated that as per information furnished to her, 8 persons including A-1 and A-2 participated in the offence. In that view of the matter, even though according to eye witnesses P.Ws 2 to 5 who were examined during inquest, the offence was committed by A-1 and A-2 only, in column No.15 of Ex.P-7 inquest report, names of 8 persons including A-1 and A-2 are stated as the culprits who attacked and killed the deceased. Ultimately P.W-13 as the investigating officer came to the conclusion that it was only A-1 and A-2 who killed the deceased, having regard to the version given by eye witnesses P.Ws 2 to 6, and did not place reliance on the evidence of P.W-1 which is based on the information furnished to her by others. This is not a case where names of A-1 and A-2 do not find place either in Ex.P-1 first information report or in Ex.P-7 inquest report and their names were introduced at a later stage during investigation by deleting names of the culprits mentioned in F.I.R and in the inquest report. Names of A-1 and A-2 as the assailants do find place not only in Ex.P-1 First Information Report but also in Ex.P-7 inquest report along with six others. The Investigating Officer P.W-13 applied his mind in view of the statements given by the eye witnesses P.Ws 2 to 6 and had chosen to file the charge sheet against A-1 and A-2 only. Therefore, no comment can be passed against the prosecution case for deleting six others named in Exs.P-1 and P-7 from the charge sheet and restricting the prosecution in respect of A-1 and A-2 only. 5) P.W-1 deposed that A-1 was not having sugar card and A-1 tried to take income certificate and that A-1 bore grudge as the deceased did not help him and that a Lambada woman residing by the side of A-1’s house was selling Gudumba and that women in the village complained the same to the deceased as surpanch about their husbands making nuisance after consuming Gudumba and that the deceased advised her not to sell Gudumba and destroyed the remaining Gudumba and that A-1 was having illegal contact with the said woman and that the said woman left the village and that A-1 bore grudge against the deceased on that issue also. She further says that A-1 was also nourishing grudge against the deceased as the deceased was getting good name and would contest in the next elections also. P.W-1 further says that six months prior to the offence, when A-1 and A-2 were standing in front of her house, A-2 started abusing her, for which she objected and that in the meanwhile the deceased came there and questioned A-2 and that again A-2 abused her in vulgar language and that A-1 and A-2 stated that they would kill the deceased, and that A-2 brought one bottle stating that he would kill her with that bottle. She says that she and her husband went to Geesugonda Police Station and gave report on the said incident and that on the advice of village elders, they withdrew that report. She again says that they pursued the report and the police warned A-1 and A-2 and that subsequently A-1 and A-2 tendered apology with the deceased. It is contended by the appellants’ counsel that name of Lambada woman was not mentioned muchless the prosecution could bring and examine the said Lambada woman as witness to prove motive for the offence. It is also contended that report said to have been given by P.W-1 and the deceased to the police relating to the incident which took place six months prior to the offence, was not find. It is contended by the Public Prosecutor that since name of the Lambada woman is not on record and since the said woman left the village to an unknown place, the prosecution could not examine the said woman. In any event, this case is not one based on circumstantial evidence. There is direct evidence of P.Ws 2 to 6 who are stated to be eye witnesses to the occurrence. In a case where there are eye witnesses to the occurrence, motive assumes little importance. The Court has to see whether version given by the eye witnesses is believable or not. During trial, P.W-1 also tried to narrate the incident by giving overt acts against A-1 and A-2. Perhaps the said evidence of P.W-1 is based on only information. The lower Court rightly did not place any reliance on such evidence of P.W-1. 6) P.Ws 2 and 6 belong to Janpaka village. Whereas P.Ws 3 to 5 are residents of Dharmaram village which is neighbouring village of Janpaka. The offence took place near Kirana shop of P.W-6. It is evidence of P.W-6 that at about 11.30 or 12.00 noon A-1 came to his shop and purchased cigarettes and went away and that the deceased was sitting in a chair on one side and that two persons were repairing current poles and that P.Ws 2 to 5 were talking and that after 15 minutes, A-1 and A-2 attacked the deceased with knives and that on seeing the same, he went into the shop and that the deceased crossed road with injuries and fell in front of Iylaiah’s house under a tree. He says that due to fear, he went inside the shop. In cross-examination, P.W-6 deposed that on that day he attended a function in her sister’s house in Bandampalli near Narsampet and returned to the houe at about 1.00 or 2.00 P.M. . He further says that his wife informed him that the deceased died. He says that at the time of incident, he was taking food in his house and on coming to know the commotion he came out. P.W-6 did not state even in cross- examination that he did not see the offence proper. After hearing commotion outside, P.W-6 came out and saw the incident. But due to fear P.W-6 went inside the shop as the deceased fell with injuries under a tree after crossing the road. The deceased did not die on the spot. He was taken towards Warangal hospital in an auto. Subsequently P.W-6’s wife informed P.W-6 about death of the deceased. Simply because there is slight difference in the timing of P.W-6’s return from his sister’s village, it cannot be said that P.W-6 was not present at the time of offence. 7) P.Ws 2 to 5 were proceeding to Dharmaram village from Warangal through Janpaka village on motor cycles. It is evidence of P.W-2 that when they reached Kirana shop of P.W- 6, the deceased was there along with workers of Gram Panchayat and was supervising fixing of bulbs to electric poles and that it was about 12 noon and that on seeing the deceased, they stopped and began talking to the deceased. P.W-2 says that in the meanwhile A-1 came there and went inside Kirana shop of P.W-6, came out of the shop and was standing in front of telephone booth and that immediately A-1 attacked the deceased with knife and that A-1 also called A-2 and that A-2 came there and stabbed the deceased with knife and that the deceased tried to escape from them and crossed the road and fell down under a tree in front of Iylaiah’s house and that on seeing the same, A-1 and A-2 went away by throwing their knives there itself. P.W-2 is the person who took the injured/deceased to M.G.M. Hospital in auto. P.W-02 says that on the way to the hospital, the deceased died in the auto itself. In cross-examination, P.W-2 says that his house is at a distance of 1000 feet from the place of incident. He says that he was by the side of the deceased at the time of incident. P.W-2 is closely related to A-2, A-2 being P.W-2’s own sister’s son. In cross- examination P.W-2 admitted that he stated to the police as contained in Ex.D-1 to the affect that the deceased fought with the accused. Naturally the deceased would resist attack of A-1 and A-2 on him at the time of incident. Ex.D-1 reinforces the version given by P.W-2 in his evidence during trial. P.W-2 says that A-2 is also in congress party. This is not a case where opposite party workers attacked the deceased. In this case the accused are stated to have attacked the deceased due to personal reasons and not due to political reasons. Nothing could be shown as to why P.W-2 was giving evidence against A- 2 in spite of his close relationship. P.W-2 denied the suggestion that A-2’s mother filed suit for partition claiming rights in landed properties. Even though lot of defence evidence was let in, it could not be substantiated that there was pending suit between A-2’s family members and P.W-2’s family members. 8) P.Ws 3 to 5 have no axes to grind against any of A-1 or A-2 nor have any reason to favour the deceased or P.W-1. They were passing by the scene of offence and were talking to the deceased along with P.W-2 when the deceased was attacked by A-1 and A-2. It is evidence of P.Ws 3 to 5 that initially A-1 went into shop of P.W-6 and came out and then attacked the deceased with a knife and thereafter called A-2 who also attacked and stabbed the deceased with knife and that A-1 and A-2 left the scene after throwing their knives there itself. Distance between Dharmaram and Janpaka villages is about 3 kms. They are neighbouring villages. In P.W-3’s evidence it was recorded by the lower Court as if A-1 ‘axed’ the deceased on his neck. It appears to be a typist’s mistake for ‘hacking’. Nowhere P.W-3 stated that A-1 was armed with an axe. It is evidence of P.W-3 that A-1 was armed with a knife. Hacking with a knife caused several cut lacerations on the deceased. In cross-examination, P.W-3 deposed that he stated to the police that when A-1 and A-2 attacked the deceased, they went to some distance. When A-1 and A-2 were armed with knives and attacked the deceased with those knives indiscriminately and caused as many as 18 injuries to the deceased, the eye witnesses went to some distance in order to save themselves from the said ghastly attack of A-1 and A-2 on the deceased. P.W-3 deposed in cross-examination that even with a knife one can hack. He says that A-1 and A-2 were having knives of 5 to 6 inches. He further says that A-2 came there from a lane located after telephone booth. According to P.W-3, they were going to Dharmaram village from Warangal via Janpaka. P.Ws 4 and 5 in cross-examination stated that they are also working for Congress party. Not only the deceased as well as accused, but also the witnesses belong to the same congress party. Perhaps for that reason, the witnesses stopped at the scene and were talking to the deceased. There are absolutely no reasons to disbelieve evidence of P.Ws 2 to 6 who are eye witnesses to the occurrence. They are persons at the scene at the time of offence and their evidence is believable and probable. There is no indication in the record to show that P.W-6 is having his residential portion away from his shop. Evidence of P.W-6 in cross-examination that when he was taking food in his house, he came out on coming to know about the commotion, indicates that both his shop as well as his residential portion are at one place near the scene of offence. 9) A-1 examined himself as D.W-1. The fact that A-1 and P.W-2 were contemporaries in Vani Niketan high school, Warangal as per Exs.D-3 and D-4 study certificate, is not in any way helpful to the accused. Exs.D-5 and D-6 news items in Andhra Jyothi and Eenadu newspapers were not proved in accordance with law by examining the persons concerned. Even as per the news items, congress party persons killed the deceased. There is no dispute that A-1 and A-2 belong to congress party. Since 8 persons were named in F.I.R, other persons than A-1 and A-2 might have attended the police station immediately after the offence to probabilise their non participation in the offence against the deceased. Since it is a case based on eye witnesses account of the offence, Exs.D-7 and D-8 relating to motive, may not have any relevance. Ex.D-7 is not an income certificate, but is only community, nativity and date of birth certificate. Even though A-1 as D.W-1 and his wife as D.W-2 says that A-1 went to M.G.M. hospital to see the dead body of the deceased, none of the prosecution witnesses stated the said fact, and particularly P.W-8 who is the inquest panchayatdar or P.W-13 the investigating officer. Evidence of D.W-3 who resides in a house in the locality of the scene of offence that he did not observe any incident between 1.00 or 2.00 P.M., cannot have any value, because all the residents of the locality and all the inmates of the house in the locality might not have seen the incident. D.W-4 is the 2nd accused. He denies the incident which is stated to have taken place six months prior to the offence. Both A-1 and A-2 as D.Ws 1 and 4 pleaded not guilty. But, evidence of P.Ws 2 to 6 undoubtedly prove their complicity and participation in the offence by way of attacking the deceased with M.Os 1 and 2 knives and causing 18 stabb wounds or cut lacerations resulting in death of the deceased. 10) D.W-5 was examined to speak that there was illicit intimacy between P.W-1 and P.W-10. D.W-5 is wife of A-2. P.W- 10 denied the said allegation. P.W-10 is ward member of Gram Panchayat. It is feebly contended that because of the illicit intimacy between P.W-1 and P.W-10, P.W-10 may be responsible for death of the deceased. For the said contention, there is absolutely no basis in the record. 11) Having regard to the above evidence of P.Ws 2 to 6 whose evidence is believable and probable, the lower Court rightly found A-1 and A-2 guilty of the offence under Section 302/34 I.P.C. We do not find any valid or legal reasons to come to a different conclusion in this appeal. 12) In the result, both the appeals are dismissed. _____________________ V.ESWARAIAH, J _______________________________ SAMUDRALA GOVINDARAJULU, J February , 2011 ksh