THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1302 of 2008 Date:04.08.2009 Between: A.E.Palani and three others …Appellants And State of A.P. rep. By Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 1302 of 2008 JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao,J) This appeal is directed against the judgment dated 21.10.2008 by the Special Sessions Judge-cum-IV Additional Sessions Judge, Chittoor, at Tirupathi in S.C.No. 1 of 2007 whereby and whereunder the appellants were convicted for the offence under Section 302 of IPC and sentenced to suffer imprisonment for life and also to pay a fine of Rs.1,000/- each. 2. Challenging the said order of conviction and sentence, the appellants/A-1 to A-4 preferred this appeal. 3. In all, six accused persons viz. the appellants herein and A-5 and A-6 were tried by the learned Sessions Judge for the offences under Sections 147, 148, 149, 324 and 302 r/w 149 of IPC. At the conclusion of the trial, the learned Judge found A-1 and A-2 not guilty for the offence under Section 324 of IPC, found A-3 to A-6 not guilty for the offence under Section 324 r/w 149 of IPC found A-1 to A-6 not guilty for the offences under Sections 147 and 148 of IPC and found A-5 and A-6 not guilty for the offence under Section 302 IPC and accordingly acquitted them for the said charges. But, the learned Additional Sessions Judge found the appellants herein who are A-1 to A-4 guilty for the offence under Section 302 of IPC. 4. Briefly stated the case of the prosecution is that on 03.08.2006 at about 7.40 p.m at Narayanavanam, all the accused formed into an unlawful assembly armed with iron rods and stones and attacked one M.Kalathi Modali, hereinafter called the deceased. A-2 beat him with an iron rod on the head, A-1 beat the deceased with a stone on the head, A-3 beat the deceased with a stone on the face, A-4 beat the deceased with a stone all over the body, A-5 and A-6 beat the deceased indiscriminately. During the course of same transaction, PW-1 (M.Kandhaswamy), the son of the deceased also received injuries caused by A-1 and A-2. 5. On 02.08.2006, the elections to Narayanavanam Gram Panchayat took place wherein PW-6 (M.V.Raja) contested the elections from 4th ward as T.D.P. Candidate and appointed PW-1 as his agent in the booth and when the Congress party persons tried to cast bogus votes, PW-1 objected for the same. 6. While the things stood thus, on 03.08.2006 at about 4.00 p.m. PW-6 and others were going in a procession on the eve of victory of M.D.Balasubramanyam who was elected as Sarpanch. At about 7.45 p.m. when PW-1 was near Veerabhadra Swamy temple at Narayanavanam and when he was coming out of the temple, A-1 and A-2 caught hold of his shirt and questioned him as to why he acted as an agent for the candidate of TDP due to which the congress party candidate was defeated. Thereafter, A-1 stated that he would kill PW-1, so saying, A-1 beat with a stone on the head of PW-1, A-2 beat PW-1 on the right shoulder, then PW- 1 started running away and at that time the deceased (Kalathi Mudali) came near the house of one Kuppu Swamy and PW-2 also followed the deceased and the deceased questioned A-2 as to why they beat PW-1, then A-2 beat him with an iron rod on the head, A-1 beat the deceased with a stone, as a result of which the deceased fell down and became unconscious, then A-3 beat the deceased on his mouth, A-2 beat the deceased on his chest and right foot with a stone, A-5 beat the deceased with a stick indiscriminately, then PW-1 raised cries, on hearing the cries, the neighbours and relatives of PW-1 came, that Pws.5 to 9 witnessed the incident. Thereafter, the deceased was shifted to the Clinic of PW-11 at Narayanavanam. 7. On receiving information about the incident, PW-17, the Inspector of Police, Puttur, summoned the Sub-Inspectors of Police, Vodamalapet and Puttur and directed them to shift the injured persons to the Government Hospital, Puttur. PW-17 instructed PW-16 to proceed to the Government Hospital, Puttur and record the statement of injured and register a case. On the same day, at about 10.30 p.m. the deceased succumbed to injuries while undergoing treatment. On receipt of Ex.P-1 report from PW-1, PW-16, the Sub-Inspector of Police registered a case in Crime No.39 of 2006 for the offences under Sections 147, 148, 302, 324 r/w 149 of IPC. PW-17, the Inspector of Police visited the scene of offence on 04.08.2006 at 6.30 a.m., seized M.Os.1 to 7, held inquest over the dead body of the deceased, sent the dead body for post mortem examination PW-15 conducted the post mortem examination and opined that the deceased appears to have died of shock and haemorrhage due to injuries to vital organ i.e. head. After completing investigation, PW-17 filed charge sheet against the accused. 8. The prosecution in order to prove the guilt of the appellants, examined Pws.1 to 17, marked Exs.P-1 to P-10 and M.Os.1 to 9. In defence, Exs.D-1 to D-3 were marked. The learned trial Court on a consideration of the entire material on record, convicted the appellants for the offence under Section 302 IPC and sentenced them to punishment as mentioned above. 9. We have heard Sri C.Padmanabha Reddy, Learned Senior Counsel appearing for the appellants and also the learned Public Prosecutor appearing for the State. 10. The learned Senior Counsel appearing for the appellants would submit that the trial Court erred in awarding the punishment insofar as the appellants are concerned. He further contended that the trial Court did not believe the evidence of PW-1 as regards the injuries caused to PW-1 and the same ought to have been extended insofar as the appellants also, in as much as the attack on PW-1 and deceased had taken place in the same transaction, obviously PW-1 was the target for the accused as per the case of the prosecution., only upon the intervention of the deceased who is no other than the father of PW-1, the accused came upon the deceased and inflicted serious injuries, out of which one head injury resulted in the death of the deceased. It is further contended that PW-1 stated in the first instance before PW-15, the doctor that he was beaten by some unknown persons. Therefore, according to the learned counsel when it is the case of PW-1 that he was beaten by unknown persons, the said unknown persons might have attacked the father of PW-1 i.e. the deceased and attributing overt acts against the appellants is nothing but improvement. It is further submitted by the learned counsel that there is a political rivalry, in fact, it is a faction ridden village and the Court should be careful in assessing the evidence on record, particularly the evidence of PW-1. and thus, he contends that the conviction and sentence passed against the appellants are liable to be set aside in this appeal. 11. On the other hand, the learned Public Prosecutor contended that out of the injuries, only one injury that was inflicted on the head, is held to be sufficient to cause the death of the deceased and it is his further contention that common object can be developed on the spot also and in the facts and circumstances of the case, though PW-1 was the target, on the interference of the deceased, the deceased was beaten by the appellants. Therefore, according to the learned Public Prosecutor, the trial Court was right in assessing the evidence on record in so far as the appellants is concerned, and the trial Court is justified in recording the above conviction and sentence against the appellants. 12. Now the only point that arises for determination in this appeal is whether the trial Court was right in appreciating the evidence on record and recording conviction against the appellants for the offence under Section 302 of IPC. 13. The learned trial Court disbelieved the attack on PW-1 even doubting his evidence on the ground that initially when he stated to PW-15, the doctor who examined him that he received injuries by some unknown persons, Ex.P-1 report lodged by him is subsequent to the statement made to PW-15, the doctor. Further, PW-15, the doctor testified the fact that PW-1 stated that some unknown persons beat him and he received injuries. Basing on the evidence of PW-15, the learned trial Court considered the version of PW-1 before the Court as an afterthought and therefore, disbelieved his version. In fact, the statement made by PW-1 before PW-15,the doctor was the earliest in point of time i.e even before Ex.P-1 was lodged with the police. But curiously the learned trial Court believed the evidence of PW-1 as well as the other eyewitnesses in regard to the attack on the deceased which according to the prosecution is in the course of the same transaction. According to the prosecution, A-1 beat the deceased with stone on the head, whereas A-2 beat the deceased on the head with an iron rod. If that is so, obviously there must be two injuries on the head of the deceased, but PW-15 who conducted post mortem examination on the deceased found only one contusion on the head of the deceased and in his opinion, the said injury is fatal which resulted in the death of the deceased. However, there is also an injury on the mouth of the deceased and the same was attributed to A-3. In so far as A-4 is concerned, he was said to have beat the deceased indiscriminately and no specific overt acts have been spoken to by the eyewitnesses. 14. Further, it is pertinent to note that Pws.1,2 and 4 are the sons, PW-3 is the wife, PW-5 is the elder brother's son of the deceased. PW-6 who contested as member in Grampanchayat elections also belongs to the same political group. PW-7 admitted that he is a friend of the deceased. PW-7 is the second accused in Crime No.47 of 2006. PW-8 admitted that he is A-52 in Crime No.41 of 1989 of Narayanavanam police station. PW-5 also admitted that he is one of the accused in Crime No.41 of 1989 of Narayanavanam police station. Further PW-16, the Sub-Inspector of Police also received injuries on the same day at 8.00 p.m. The evidence of PW-16, the Sub-Inspector of Police indicates that there was rioting in between two groups in the village of Narayanavanam and in connection with said rioting all the above mentioned cases have been registered against several persons of both the groups. 15. In this backdrop, where several crimes were registered against several persons in the village belonging to both the rival groups, the evidence has to be examined with great care and caution. The alleged eyewitnesses are not only interested but also partisan. Their version in respect of the specific overt acts caused by the accused is not consistent with the medical evidence. The very fact that several crimes were registered against several persons in the village indicates that there was lot of disturbance on account of rioting in the village and therefore, even if the deceased was attacked by some assailants, it was not possible for Pws.1 to 5 who belong to the same family to witness the incident. 16. In our view, the learned trial Court having disbelieved the evidence regarding unlawful assembly ought not to have convicted the appellants basing on the testimony of the witnesses who are not only interested but also partisan and it is not proper to record a conviction in the given situation which led to filing of several cases against several persons on account of rioting in the village. We are therefore, accede to the contention urged by the learned Senior Counsel that it is quite unsafe to place reliance on the testimony of the alleged eyewitnesses and as such, we have no hesitation to hold that the trial Court erred in appreciating the evidence on record in the situation which was prevailing in the village on the alleged date of the incident and wrongly convicted the appellants for the above mentioned offence. 17. Thus, the conviction and sentence passed by the trial Court against the appellants/A-1 to A-4 is liable to be set aside and accordingly, the same is set aside. The appellants/A-1 to A-4 who are now undergoing jail sentence pursuant to the order of conviction are directed to be released forthwith, if they are not required in any other case. The appeal is allowed. ___________ D.S.R.VARMA _______________ Date:04.08.2009. R. KANTHA RAO, J CCM