THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR DATED: 13-04-2011 CRIMINAL APPEAL Nos. 1138, 1171 AND 1424 OF 2007 CRIMINAL APPEAL No. 1138 OF 2007 Between: Boddu Venkaiah and another ..... APPELLANTS AND The State of Andhra Pradesh rep., by Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT CRIMINAL APPEAL No. 1171 OF 2007 Between: Peram Subbaiah and two others ..... APPELLANTS AND The State of Andhra Pradesh rep., by Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT CRIMINAL APPEAL No. 1424 OF 2007 Between: Gerre Ramanaiah ..... APPELLANT AND The State of Andhra Pradesh rep., by Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL Nos. 1138, 1171 AND 1424 OF 2007 COMMON JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) Since all the three appeals are filed against the conviction and sentence ordered by the learned I Additional Sessions Judge, Nellore vide judgment dated 10-08-2007 passed in S.C No. 77 of 2003, they are disposed of by this common judgment. The appeals are filed by A-5, A-8, A-3, A-4, A-7 and A-1 respectively in the said sessions case wherein A-1 and A-3 to A-8 were tried for the offence under Section 148 and A-1 for an offence under Section 324 IPC, A-6 for an offence under Section 302 IPC and A-1, A-3 to A-5, A-7 and A-8 for an offence under Section 302 read with Section 149 IPC. A-1 and A-3 to A-8 were found guilty for the charges under Sections 148, 324, 302 and 302 read with 149 IPC and were sentenced to undergo imprisonment for two years and also to pay a fine of Rs.500 each, in default to undergo simple imprisonment for a further period of three months each for the offence under Section 148 IPC and to undergo life imprisonment and to pay a fine of Rs.500/- each, in default to undergo simple imprisonment for a further period of six months each for the offence under Section 302 read with Section 149 IPC. A-6 was found guilty for the offence under Section 302 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a further period of six months for the offence under Section 302 IPC. A-1 was found guilty for the offence under Section 324 IPC and was sentenced to undergo imprisonment for one year and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for a further period of three months. Aggrieved by the same, A-5 and A-8 filed Criminal Appeal No. 1138 of 2007; A-3, A-4 and A-7 filed Criminal Appeal No. 1171 of 2001 and A-1 filed Criminal Appeal No. 1424 of 2007. The case against A-2 was abated as he died during the pendency of the trial and A-6 has not preferred any appeal. The case of the prosecution in brief is as follows: All the accused are the residents of Varigonda Village. The deceased, PW 1 and all the material witnesses are also of the same village. PW 1 is the father of PW 2. On 05-05-2000 at about 1.30 PM, A-1 and A-2 picked up a quarrel with PW 2 who was waiting for PWs 9 and 6 at the culvert of the village, in connection with a match box. During the said quarrel, PWs 9 and 6 came to PW 2. Then A-1 and A-2 left the place by abusing PW 2. At about 7.00 PM, PW 2 went to his house and informed his father PW 1 about the quarrel that took place at 1.30 PM. At that time, A-4, A-1 and A-2 came to the house of PW 1 and asked PW 1 as to why his son had quarreled with A-4. PW 1 informed them that he would enquire with PW 2 about the matter. On the same day, at about 8.30 PM, all the accused came to the house of PW 1 with crowbars and sticks and when PW 1 came out from the house, A-2 dealt a blow on his head with a crowbar and when he raised his left hand to protect himself, A-2 dealt a blow on his left hand with the crowbar. In the meanwhile, PW 3 rushed to the spot and at that time, A-1 dealt with a blow on the head of PW 3 with a crowbar and A-4 dealt a blow with an iron rod on the back of PW 3. When the deceased Annam Venkaiah came to the spot, A-3 dealt a blow with a crowbar on his head. Then, A-6 stabbed him with a knife on his stomach as a result of which the intestines came out of the stomach. Thereafter, all the accused left the place. PW 4 took the deceased and PWs 1 and 3 to the Head Quarters Hospital, Nellore. PW 11, the Head Constable, V Town Police Station, Nellore who was attending at the outpost of Head Quarters Hospital on receipt of Ex.P-9 medical information from the hospital authorities rushed to the hospital and recorded the statement of PW 1 under Ex.P-1 and on the point of jurisdiction, he has sent Ex.P-1 to T.P Gudur Police Station. On receiving the information PC 1854 (not examined) visited the hospital and gathered the statements and other record. On receiving the statement of PW 1, the Assistant Sub Inspector of Police (1116) of T.P Gudur Police Station (not examined) registered a case in Crime No. 24 of 2000 and issued F.I.R Ex.P-16 to all the concerned. On the requisition received from the hospital authorities under Ex.P-13, the learned II Additional Judicial First Class Magistrate, Nellore PW 14 visited the hospital and recorded the dying declaration of the deceased under Ex.P-14 at 11.35 PM. The deceased was shifted and taken to Chennai for better treatment and before shifting him to Chennai, his blood stained shirt was seized under Ex.P-4 mediators report in the presence of PW 7 by the Assistant Sub Inspector of Police, Gudur. While undergoing treatment, the deceased died on 08-05-2000 and the same was informed by PW 5 to the police and accordingly altered F.I.R Ex.P-17 was issued. On 09-05-2000 at about 7.00 AM, the Assistant Sub Inspector of Police, TP Gudur conducted inquest over the dead body of the deceased at the Government General Hospital, Chennai in the presence of PW 8 and prepared a report under Ex.P-5. Later, he made a request for conducting postmortem examination. PW 13, the Inspector of Police, Nellore Rural Circle took up investigation on 04- 09-2000 i.e., after four months and after collecting postmortem certificate Ex.P-11 and other documents Exs.P-7, P-8 and P-12 caused the arrest of A-6 and after completing the investigation laid the charge sheet against the accused before the IV Additional Judicial First Class Magistrate, Nellore who registered it as PRC No. 89 of 2000 and later committed to the Court of Sessions. On committal, the learned Sessions Judge, Nellore registered the same as S.C No. 77 of 2003 and made over to the learned I Additional Sessions Judge, Nellore who framed the charges against the accused for the offence under Sections 148, 324, 302 and 302 read with 149 IPC as aforementioned and explained the same to them. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 15 and marked Exs.P-1 to P-17 and produced MO 1. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C with regard to the incriminating evidence. They pleaded not guilty and got marked Exs.D-1 to D-3. The learned Sessions Judge after appreciation of the oral and documentary evidence found the accused guilty and sentenced them to imprisonment as aforementioned. Hence, the appeals. Sri O. Kailashnath Reddy, learned counsel for the appellants – A-5 and A-8 contends that the incident has not happened in the manner as spoken to by the eyewitnesses. The statement of PW 1 on the basis of which F.I.R has been registered is also doubtful since according to PW 1 he fell unconscious after the incident in question and regained consciousness on the second day. In the dying declaration Ex.P-14 recorded by the II Additional Judicial First Class Magistrate, Nellore – PW 11, the deceased has not mentioned the names of any of the accused except mentioning the name of one Abraham who stabbed him. PW 2 who is the son of PW 1 has stated that he did not see the presence of A-8 while the accused attacking PWs 1 and 3. The evidence of PW 1 shows that A-2 dealt a blow on his head with a crowbar. When PW 3 came to rescue him, A-1 dealt a blow on the head of PW 3 and A-4 dealt a blow with an iron rod on his back, but the corresponding injury on the back of PW 3 is not found under wound certificate Ex.P-7. According to the learned counsel since PW 2 stated that on seeing the blood coming out of PW 3 he lost his consciousness, his evidence speaks about only A-2 inflicting a blow on the head of PW 1. PW 4 who came to the spot about 10 to 15 minutes after the attack also does not speak about the presence of A-5 and A-8. PW 11 who recorded the statement of PW 1 disowns his recording the statement. Therefore, the entire case has been fabricated after due deliberations at the instance of PW 8. Further, the Investigating Officer who investigated the case from 06-05-2000 to 04-09-2000 has not been examined. As a counter case was registered against PWs 1 and 2 on the complaint made by A-2, they bore grudge against the accused and were made to speak against the accused. Therefore, the appellants – A-5 and A-8 are entitled to benefit of doubt. Sri N. Vidya Prasad, learned counsel for the appellants – A-3 and A-7 contends that A-3 and A-7 who are the sons of A-4 are deliberately implicated in the crime and they have nothing to do with the quarrel between A-1 and A-2 which ensued with PW 2. According to the dying declaration, the offence took place at 7.30 PM in front of the house of PW 1 as per his evidence, but no witness speaks about the same and no scene of offence panchanama has been drafted as to where the offence has taken place. The sketch Ex.P-15 has not been proved as none has been examined to substantiate the same. Ex.P-1 is hit by Section 162 Cr.P.C since the police have already received the information on admission of the deceased and PWs 1 and 3 in the hospital. According to the learned counsel, Ex.P-4 panchanama is also subsequently fabricated and by the time Ex.P-4 is prepared, the deceased was already shifted to Madras, therefore, seizure of MO 1 has not been proved by the prosecution. The eye witnesses have not spoken in their evidence about the weapon used in stabbing, whereas PW 1 on the earlier point of time in Ex.P-1 stated that Abraham stabbed the deceased with a crowbar on the right side of the stomach. The prosecution was also in doubt about the weapon used and they have also not seized the knife said to have been used in commission of the offence. As per Ex.P-7 only one lacerated wound is found on PW 3 and there is no corresponding injury on his back as spoken to by PWs 1 and 2. Ex.P-9 hospital intimation sent to the police shows that the deceased and PWs 1 and 3 were beaten with hands and sticks but use of crowbars and knife has not been mentioned. Therefore, according to the learned counsel, the entire case has been fabricated with political rivalry at the instance of PW 8. Sri B. Parameswara Rao, learned counsel adopted the arguments of Sri O. Kailasnath Reddy and Sri N. Vidya Prasad. Learned Public Prosecutor would contend that the evidence of the prosecution clearly establishes that PW 2 was waiting for the arrival of PWs 9 and 6 at 1.30 AM which is the first incident where A-1, deceased and A-2 after consuming toddy came to him and asked about match box. The second incident is with regard to A-1, A-2 and A-4 going to the house of PWs 1 and 2 at about 7.30 PM and thirdly, all the accused going to the house of PWs 1 and 2 at 8.30 PM, as per the evidence. According to the learned Public Prosecutor, PWs 1, 2, 3 and 4 attributed overt acts to A-1 to A-4 and A-6 and their evidence is consistent with regard to the injuries and also stabbing of the deceased. Nellore Rural Police Station is at a distance of one furlong from the place of incident, but on the point of jurisdiction after recording the statement of PW 1, the complaint was forwarded to TP Gudur Police Station for registration of the crime. In view of the submissions as referred to above, the point that arises for consideration is whether the prosecution is able to establish the guilt of the accused for the offence beyond all reasonable doubt? PWs 1 and 3 are the injured eye witnesses whereas PWs 2 and 4 are the eye witnesses as projected by the prosecution. PW 11 who recorded the statement of PW 1 deposed that he went to the hospital and recorded the statement of PW 1 under Ex.P-1 on which he obtained the endorsement of the doctor and on the point of jurisdiction he sent Ex.P-1 to T.P Gudur Police Station, but in the cross examination, he stated that Ex.P-1 is not in his handwriting but was scribed by his constable and scribing of the complaint by the constable has not been mentioned in Ex.P-1. In Ex.P-1 statement, PW 1 after narrating the incident which took place between A-1, A-2 and his son PW 2 stated that at 7.00 PM his son informed all that happened in the morning at 1.30 AM and at that time, he took his bath and questioned PW 2 as to why A-1 and A-2 abused him. At that time, A-1, A-2 and A-4 came to his house and then he asked as to what he can do to them. Abusing in filthy language they left the place and on the same night at about 8.30 PM, all the accused and some others came with sticks, crowbars and knifes and out of them, A-2 beat him with the crowbar on his head and when he tried to prevent by putting his hand, he beat with crowbar below his right elbow which caused bleeding injury. On seeing the same, PW 3 and the deceased came to him. A-1 beat PW 3 with a crowbar on his head and A-2 beat him with a sarugolu on the back. A-6 stabbed the deceased with a crowbar on account of which his intestines came out. A-3 beat the deceased with a crowbar on the head and caused bleeding injury. According to him, others also beat them, but when he was examined in the Court as PW 1, he stated that when his son was telling the said incident, A-4, A-1 and A-2 came to his house and questioned him as to why his son PW 2 had an altercation with A-4 and then he told them that he do not know anything about the altercation as he returned from the fields just at that time and would enquire into the matter and talk to them on the next day morning. At about 8.30 PM, A-1, A-2, A-4, A-7, A-3, A-8 and A-6 came upon his house with crowbars and sticks. When he came out of the house, A-2, who is no more dealt a blow on his head and when he raised his left hand to protect himself, he dealt a blow on his left hand with the crowbar. When PW 3 came to rescue him, A-1 dealt a blow on his head and A-4 dealt a blow with an iron rod on the back of PW 3. Whereas in Ex.P-1, it was stated that A-2 beat PW 3 with a sarugolu on the back which fact has not been stated in evidence. When the deceased came to the spot, A-3 dealt a blow on him with a crow bar, then A-6 stabbed him on his stomach. PWs 4 and 2 took himself, the injured PW 3 and the deceased to the Government Hospital, Nellore. The police obtained his statement which is Ex.P-1 and all the accused who were present in the Court along with A-2 came upon his house on the date of incident. In the cross examination, he admitted that they are the followers of Guduru Janakirami Reddy – PW 8 and the accused are the followers of Gandavarapu Adisesha Reddy. PW 8 took the deceased to Madras hospital. While he was in hospital he was not conscious and he regained consciousness on the second day. Ex.P-1 report was also taken from him on that day. He also admitted that there is no light at the place of the incident and there was darkness at that time and that he does not know the brother-in-law of the deceased. He also admitted that there was darkness in their street at 8.30 PM and A-8 is a labourer. One constable scribed Ex.P-1 report. On the next day, police came to the hospital and examined him. He also admitted that A-6 is residing at Atmakur since 20 years and denied that there are two or three persons with the name Abraham in their village. He also denied that he has not stated in Ex.P-1 that A- 6 stabbed the deceased with a crowbar. PW 2 who is the son of PW 1 stated that after his return to the house at 7.30 PM from the fields his father was taking bath. When asked, he told his father about the incident that took place. At about 7.45 PM, A-1, A-4 and A-2 came upon their house and started abusing him and his father. At about 8.30 PM, A-1, A-2, A-3, A-4, A-7, A-6 and A-5 came there with sticks, crowbars and iron rods. A-2 dealt a blow on the head of his father PW 1 with a crowbar. Then PW 3 and others came there and A-1 dealt a blow on the head of PW 3 and A-4 dealt a blow with an iron rod on the back of PW 3. PW 2 further deposed that on seeing blood coming out of PW 3, he lost his consciousness and fell down. He has not stated anything about the attack made by A-6 on the deceased. He also admitted in his cross examination that police examined him at his house on 05-05-2000 at 9.00 PM and he did not see the presence of A-8 at the time of incident. PW 3 who is one of the injured witnesses deposed that his house is at a distance of 100 yards from the house of PW 1 and that on the date of incident at about 8.00 or 8.30 PM on hearing galata, he went to PW 1. There he saw A-2 giving a blow on the head and hand of PW 1. As he went to the spot, A-1 dealt a blow on his head with a crowbar and A-4 dealt a blow on his back with a crowbar. When the deceased came to the spot, A-6 stabbed him on his stomach and A-3 dealt a blow with a crowbar on his head. PWs 4 and 2 and one Subrahmanyam took them to the hospital. According to him, PWs 4 and 2 and Subrahmanyam came to the spot within 10 to 15 minutes from the time of attack and that they were admitted in the hospital by 10 PM and the doctor enquired from him as to how he sustained injuries. But, in Ex.D-3 he stated that the deceased who was watching came to rescue them, then Davanam Abraham stabbed with knife on his stomach. PW 4 who is also an eye witness to the incident corroborated the evidence of PWs 1 to 3 with regard to the attack made by A-2 on PW 1 and A-1 and A-4 on PW 3. He deposed that when his younger brother who is the deceased went to the scene of offence, A-3 dealt a blow with an iron rod and A-6 stabbed him. In the cross examination, he admitted that the police came to the spot within 10 to 15 minutes from the time of receipt of injuries by his deceased brother. Himself and the police took the injured in a car from the scene of offence to the Government Head Quarters Hospital, Nellore by 10.00 or 10.30 PM and the police examined him before lifting the injured into the vehicle. PW 5 only speaks about his return to the village at 10.00 PM on the date of incident. He deposed that on coming to know that his father PW 4 was admitted in the hospital, he went to the hospital and that on 08-05-2000 his father informed him about the death of the deceased who is his junior paternal uncle and that he informed the same to the police. PW 10, the doctor who examined PWs 3 and 1 and issued Exs.P-7 and 8 wound certificates deposed that PW 3 sustained only one injury which is simple in nature and that PW 1 sustained four injuries. Injury No.1 is grievous and the other three are simple in nature. PW 11 Head Constable, V Town Police Station, Nellore deposed that on the date of incident at about 11.30 PM, when he was attending to his duty at the outpost of headquarters hospital, on receipt of Ex.P-9 medical intimation went to the hospital and recorded the statement of PW 1 which is Ex.P-1. In the cross examination, he deposed that Ex.P-1 is not in his handwriting and the same is scribed by his Constable. The scribe of Ex.P-1 is not examined. PW 13, the Inspector of Police deposed that he took up investigation on 04-09-2000 and arrested A-6. As per the records, on 08-05-2000 one Mr. L. Lakshmanarao, the Inspector of Police took up investigation and during the stage of 307 IPC he examined PW 1, PW 3, PW 2, PW 9, K. Subrahmanyam, G. Ravindrareddy, PW 6 on the same day and recorded their statements. He also conducted inquest in the presence of PW 8 and others. PW 13 admitted that in the charge sheet it is stated that A-6 stabbed the deceased with a crowbar on the right side of the stomach and further admitted that on the report given by A-2, Crime No. 25 of 2000 was registered and was referred as false and he cannot say whether the incident reported in Crime No.25 of 2000 took place at 6.00 PM to 7.00 PM unless he sees the records in Crime No. 25 of 2000. According to him, the investigation reveals that when PW 3 and PW 9 were being attacked the deceased went to their rescue. The CD does not reveal the name of the brother-in-law of the deceased. In his cross examination, PW 13 deposed that in Ex.P-14 dying declaration, the deceased stated that 20 others apart from A-6 and two others came to the spot and that PW 1 has stated to the Assistant Sub Inspector of Police that the accused came to his house, but he has not stated that the incident took place in front of the house of PW 1 on the road. PW 2 did not state before the Assistant Sub Inspector of Police that the incident took place in front of the house of PW 1 on the road. PW