IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY SIXTH [26TH] DAY OF MARCH, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.268 of 2003 Between: Pasala Mallikarjuna Reddy & another … Appellants/A.1 & A.3 And: State of A.P., rep. by Public Prosecutor … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Criminal Appeal No.268 of 2003 JUDGMENT: This appeal is directed against the judgment dated 05.03.2003 in SC No.203 of 2000 on the file of the Assistant Sessions Judge, Kovvur, Nellore district, wherein, the appellants- A.1 and A.3 were found guilty of the offences under Sections 307, 332 read with 149 IPC and convicted for the same under Section 235 Cr.P.C. and sentenced to undergo rigorous imprisonment for eight years and also to pay fine of Rs.2,000/- each and in default, to suffer simple imprisonment for one year each, for the offence under Section 307 IPC read with Section 149 IPC and also further sentenced to undergo rigorous imprisonment for two years each and to pay fine of Rs.500/- each and in default, to suffer simple imprisonment for three months each, for the offence under Section 332 IPC read with 149 IPC. 2. Heard the learned counsel for the appellants-A.1 & A.3. None appeared for the respondent-State. Perused the records. 3. The case of the prosecution in brief is as follows: On 23.12.1998 PW.3-N. Srikantha Babu, Sub Inspector of Police, A.S. Pet PS, while conducting night petrol, found lorry bearing No.AP 04 T 5257 kept by A.1 on Seetharamapuram main road, near bus stand. PW.3 and PC 617 advised A.1 to keep the lorry in the police station to avoid robberies during night. When A.1 quarreled with PW.3, PW.3 has seized the records of the lorry. A.1 threatened PW.3 with dire consequences and went away along with the lorry. A.1 informed the incident to A.2 to A.4 and all of them came in a jeep bearing No.AP 04 T 6175, armed with iron rods and sticks and kept the lorry in the bus stand at 1.30 p.m. on 24.12.1998 and caused traffic obstruction. PW.3 asked A.2 to remove the lorry but A.2 refused to remove the lorry and behaved in an unruly manner. Thereupon, PW.3 returned to the police station and mobilized the staff, including PWs.1, 2, 4, 5 to 7 and 12 and went to the bus stand. Again PW.3 asked A.2 to remove the lorry but all the accused, in pursuance of common intention, caused hurt to PWs.1, 2, 5 and 12 and dragged PW.3-Sub Inspector of Police into the hotel of Balaiah-PW.9, where, A.2 dealt a blow on the head of PW.3 with iron rod and A.1 beat him with an iron rod and other accused also attempted to hit PW.3 with big stones, with an intention to kill him and caused injury to PW.3. Meanwhile, several persons came to the rescue of PW.3, who fell unconscious and the accused managed to escape from the spot leaving the lorry. The injured were sent to the Government Hospital, Udayagiri. The Sub-Inspector of Police, Udayagiri, recorded Ex.P.1 statement of the complainant-PW.1 and issued FIR Ex.P.2 in Cr.No.92 of 1998 and forwarded to Seetharamapuram PS on point of jurisdiction. The blood stained cloths of the victims MOs.1 to 12 were seized by PW.18-Inspector of Police in the presence of PWs.14 and 15 panch witnesses, under a mahazar Ex.P.19. PW.18 also observed the scene of offence and prepared rough sketch Ex.P.18. The Medical Officers- PWs.13 and 17, who examined the victims, opined that the injuries were simple in nature. Ex.P.7 is the medical certificate of PW.12 issued by PW.13 and Exs.P.13 to P.16 are the wound certificates of PWs.1, 5, 3 and 2 respectively, issued by PW.17. On 18.03.1999, A.2, A.4 to A.7, 9 and 10 were arrested and at their instance, weapons MO.12 iron rod, MO.4 iron rods (8) were seized under a cover of mahazar Ex.P.11. A.1, A.3 and A.8 were arrested on 03.01.1999. After completion of the investigation, the Inspector of Police, Udayagiri, filed charge sheet. 4. The learned Judicial Magistrate of the I Class, Atmakur, took cognizance of the offences under Sections 147, 148, 324, 332, 307 read with Section 149 IPC against A.1, A.3 to A.10 in PRC No.72 of 1999. Case against A.2 was abated, as he died. A.1, A.3 to A.10 were committed to the Court of Sessions for taking their trial. Charges under Sections 147, 148, 307, 323, 332 and 120-B IPC were framed against A.1, A.3 to A.10, read over and explained to them and all the accused pleaded not guilty for the same and claimed to be tried. 5. In support of their case, the prosecution examined PWs.1 to 18 and marked Exs.P.1 to P.19 and MOs.1 to 14. A.1, A.3 to A.10 were examined under Section 313 Cr.P.C. No defence evidence was adduced by the accused but Exs.D.1 to D.6 portions of complaint Ex.P.1 and statements of the witnesses under Section 161 Cr.P.C. were marked. 6. On a consideration of the evidence available on record, the learned Assistant Sessions Judge, Kovvur, found A.1 and A.3 guilty of the offences under Sections 307, 332 read with Section 149 IPC and convicted them for the same and imposed sentences as stated above. A.1 and A.3 were found not guilty of the other offences and A.4 to A.10 were found not guilty of all the offences, with which they were charged and they were acquitted thereof. Aggrieved by the conviction and sentence recorded against A.1 and A.3 for the offences under Sections 307, 332 read with 149 IPC, they preferred the present appeal. 7. The first incident is said to have taken place on the night of 23.12.1998, wherein PW.3-Sub Inspector of Police, Seetharamapuram PS while on night petrol duty, found a lorry bearing No.AP 04 T 5257 on the road and advised the persons, who were in the cabin, who included the son of the owner of the lorry by name Ramireddi, to keep the lorry in the police station for safety, but A.1 who was in the lorry, refused and questioned the authority of PW.3 and altercated with PW.3 and took the lorry away without heeding the advise of PW.3. PWs.1 and 2 police constables were also stated to be with PW.3 during night petrol and witnessed the above incident. 8. The second incident occurred at about 1.30 p.m. on 24.12.1998 when all the accused came as a body, armed with weapons in a jeep and again brought the lorry and kept the same near the bus stand, caused obstruction to the traffic by way of challenging the authority of PW.3 and in retaliation to the incident that occurred in the previous night and as a show of strength. It is alleged that PW.3 again told the accused to remove the lorry, but they refused to do so and attacked PW.3 and constables PWs.1, 2, 5 and 12, who accompanied PW.3 and caused injuries. It is specifically alleged that PW.3 was dragged into the hotel of PW.9- Balaiah, where A.1 and A.2 beat PW.3 with iron rods on the head and they attempted to kill PW.3 by hitting him with a big stone. Ex.P.2 FIR was registered on 24.12.1998 at 7 p.m. based on the complaint statement of PW.1 Ex.P.1, one of the constables, which was recorded at 4.30 p.m. by the Sub Inspector of Police, Udayagiri. The incident is said to have taken place at 1.30 p.m. and the complaint statement Ex.P.1 was recorded, within three hours at about 4.30 p.m. 9. It is in the evidence of PW.1 that immediately after the occurrence, all the injured were taken in a jeep to the Government Hospital, Udayagiri and PW.3 was not conscious, PW.4 Gatta Mangarao, Sub Inspector of Police, Udayagiri PS, came and recorded the statement of PW.1 under Ex.P.1. PW.4 also corroborated the testimony of PW.1 regarding his recording of statement from PW.1 under Ex.P.1 at Government Hospital, Udayagiri and further testified to the registration of Ex.P.2 FIR in Cr.No.92 of 1998. It is also in his evidence that as the incident took place with in the jurisdiction of Seetharamapuram PS, he transferred the FIR to Seetharamapuram PS on the point of jurisdiction. The fact that the complaint statement Ex.P.1 was recorded within four hours after the incident and Ex.P.2 FIR was registered promptly thereafter, without any delay, which proves the genuineness of the contents thereof ruling out the possibilities of any false implication. In fact, nothing is suggested in the cross- examination of any of the witnesses i.e., PWs.1 to 5 and 12 as to why false case should be registered against the accused. The testimony of the injured witnesses PWs.1, 2, 3,5 and 12 is cogent and consistent and mutually corroborative as to the incidents that happened both on the night of 23.12.1998 and the main occurrence on the after noon of 24.12.1998, in which, they sustained injuries at the hands of the accused. The incident of previous night that there was altercation between A.1 and PW.3 regarding removal of the lorry from the road is stated to be the motive for the accused to conspire and plan an attack on PW.3 with an intention to assault him, which they are said to have executed on the after noon of 24.12.1998 by again placing the lorry in the middle of the road near the bus stand causing traffic obstructions in a bid to provoke PW.3 and when PW.3 came there with force, all the accused attacked PW.3 and other police constables-PWs.1, 2, 5 and 12 causing injuries to them. The manner in which the incident has taken place is described vividly in Ex.P.1 complaint statement recorded at the earliest point of time, shortly, after the incident. 10. The testimony of the injured witnesses is duly corroborated by the contents of the complaint Ex.P.1, wherein, it is specifically alleged that besides beating the constables indiscriminately, A.2 and his son and others, dragged PW.3 in to the tea stall of PW.9 forcibly and A.2 instigated the other accused to kill PW.3 and all the accused beat PW.3 indiscriminately on the head. PW.1 testified that A.1 beat him with iron rod on the head and also beat PWs.2, 5 and others. PW.2 also deposed that A.1 beat him on the head. PW.3 testified that A.1 and A.2 beat him with iron jockey rod. PW.3 testified that A.1 and A.2 beat him on the head and they also beat PWs.3 and 2. PWs.6, 7 and 12 supported the testimony of PWs.1 to 3 and 5 as to the overt acts of A.1 and A.3. PW.6 who is also a constable and was a witness to the incident, besides testifying to the overt acts of the accused, also identified the accused. It is also in his evidence that he used to go to the Porumamilla village to execute NBWs pertaining to his police station and so he knew A.1 to A.5 and A.10. 11. No doubt, in Ex.P.2 FIR the names of all the accused are not specifically mentioned and it is stated that one Ramireddy is the owner of the lorry and he instigated his son and other accused to kill PW.3-Sub Inspector of Police and PW.2. It is not disputed that A.1 is the son of Ramireddy. The identity of A.1 to A.3 and the specific overt acts attributed to them have been clearly established byt the evidence of PW.6 and the injured witnesses PWs.1 to 3, 5, 7 and 12. The identity of the other accused and their participation in the offences has not been established by the evidence on record. The trial Court, has therefore, rightly found A.4 to A.10 not guilty of any of the offences with which they were charged and acquitted them of the same. 12. Insofar as the complicity of A.1 and A.3 is concerned (case against A.2 having got abated), the testimony of the injured witnesses and other direct witnesses to the occurrence is sufficient to establish the case as against them. Simply because, the injured witnesses happened to be the police personnel, their testimony cannot be rejected on that ground, as the same is otherwise not discredited. In this case, the very attack was on the police personnel, who were on duty, and therefore, the injured police personnel PWs.1 to 3, 5 and 12 have become crucial witnesses and they have duly testified to the manner in which the attack on them took place and also to the overt acts attributed against A.1 to A.3. There cannot be any better evidence to prove the occurrence than the testimony of the injured themselves and there being no reason as to why all the injured should falsely depose against A.1 and A.3, their testimony is certainly entitled for weight and credence. The omissions and contradictions brought out in the testimony of PWs.1 to 3 marked as Exs.D.3 and D.6 to 16 are not of such nature as to impeach the veracity of the witnesses or undermine quality of their testimony. It is well settled that much importance cannot be given to minor discrepancies in the evidence or contradictions between the evidence and the earlier statements recorded during investigation, when such contradictions or omissions do not go to the root of the case. 13. Apart from the fact that the testimony of PWs.1 to 3, 5 and 12 is mutually corroborative regarding the assault on them, the medical evidence on record also supported the prosecution version. The testimony of PW.13, who examined PW.12 and issued wound certificate Ex.P.7 shows that PW.12 sustained three injuries caused by blunt object, which are simple in nature. Similarly, the testimony of PW.17 who examined PWs.1, 2 and 5 and issued wound certificates Exs.P.13 to 16 also shows that the injured sustained simple injuries and they are possible with a blunt object, like an iron rod and the injuries were aged around four hours. The seizure of the bloodstained cloths, which included kaki uniform i.e., pants and shirts [MOs.1 to 12] under mahazar Ex.P.19 by PW.18 from the injured also supports the prosecution case that PWs.1 to 3 and 5 sustained bleeding injuries. The fact that PWs.14 and 15 panch witnesses for the said seizure of bloodstained cloths, turned hostile, is of no consequence. PW.9 owner of the tea stall, where the incident is said to have occurred also, turned hostile to the prosecution. The other evidence on record, however, established that the incident did take place and particularly PW.3 was assaulted near the tea stall of PW.9 and the same was referred to even in Ex.P.1 and hence, PW.9 not supporting the prosecution case, is also not of much consequence. 14. PW.18-Inspector of Police and the investigating officer testified to the arrest of the accused and seizure of weapons MOs.13 and 14 from their possession at their instance under seizure panchanama Ex.P.12 in the presence of PW.16. PW.16 also corroborated the evidence of PW.18 regarding the arrest of the accused and also seizure of weapons MOs.13 and 14. Thus, the direct, circumstantial and medical evidence on record clearly established the presence and participation of A.1 and A.3 in the offences and the overt acts attributed against them in the course of assault against the injured witnesses, including PW.3 Sub Inspector of Police. As A.1 and A.3 are found to have caused obstruction to PW.3 in discharge of his official duties, which included clearing traffic and removal of obstructions for free flow of the traffic in the centre of the village near the bus stand. The attack by A.1 and A.3 clearly attracts the ingredients of the offence under Section 332 IPC. Therefore, the conviction of A.1 and A.3 for the offence under Section 332 IPC and the sentence of rigorous imprisonment for two years each and fine of Rs.500/- each imposed against them for the same, does not call for any interference. 15. However, insofar as the offence under Section 307 read with Section 149 IPC is concerned, there is no specific allegation against A.1 and A.3 that they intended to kill PW.3 or with such intention, they attacked PW.3 and caused injuries to him. It is only against the deceased A.2 that an allegation is made that he instigated the other accused to kill PW.3-Sub inspector of Police. It is not brought out in the evidence specifically that acting on the instigation of A.2, A.1 and A.3 beat PW.3 with an intention to kill him. The whole incident that took place on the after noon of 24.12.1998, though pre-meditated was a sequel to the earlier incident on the night of 23.12.1998, wherein, there was altercation between A.1 and PW.3 regarding the removal of the lorry from the road. The evidence on record does not establish that all the accused have hatched up a plan to eliminate PW.3 and in pursuance thereof, the incident on the after noon of 24.12.1998 took place. The evidence on record only shows that having got offended over the previous night’s incident, accused in a bid to show their might, have again brought the lorry and kept it in the centre of the road near the bus stand and when PW.2 called PW.3 to the spot and when PW.3 came and asked them to remove the lorry, they attacked him and other constables, who accompanied. It is, therefore, not a case of any pre-meditated plan to eliminate PW.3 nor is a case where on the spot, accused conspired to kill PW.3 and it was only a case where accused intended to show their might and when PW.3 came there accompanied by other police personnel, they were all attacked and assaulted. Though an allegation is made that the accused tried to throw a boulder on PW.3, the same is not established by the evidence on record. Though, the weapons used by A.1 and A.3 were iron rods, injuries caused are only simple in nature, which is indicative of fact that the accused merely assaulted PW.3 and other injured, but they did not intend nor attempted to kill them. If really, there was any such intention or attempt to kill PW.3, the injuries would certainly have been more severe in nature, especially, when they were caused with iron rods. 16. Under those circumstances, it is considered that the conviction of A.1 and A.3 for the offence under Section 307 read with 149 IPC is not sustainable and hence, the said conviction and sentence imposed thereof, are held liable to be set aside and they are accordingly set aside. 17. However, the evidence on record clearly established that A.1 and A.3 did cause hurt to PWs.1 to 3 with the aid of the iron rods and the overt acts proved against them clearly attract the ingredients of the offence under Section 324 IPC. A.1 and A.3 are, therefore, found guilty of the lesser offence under Section 324 IPC and are accordingly convicted for the same and they are sentenced to undergo rigorous imprisonment for a period of three years [3] each and also pay fine of Rs.2,000/- each, in default, to suffer simple imprisonment for three months each, for the offence under Section 324 IPC. Both the sentences imposed for the offences under Sections 324 and 332 IPC shall run concurrently with benefit of set off under Section 428 Cr.P.C. The trial Court shall issue necessary warrants against A.1 and A.3 for serving the remaining part of the sentence. 18. In the result, subject to the above modification regarding the conviction and sentence, the criminal appeal is dismissed. ___________________ G.V.SEETHAPATHY, J Date: 26.03.2010 bss