HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2248 OF 2004 Dated 18-02-2011 Between: Gella Yedukondalu and 3 others. ……..Appellants Vs. State, rep. by PP ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2248 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the V Additional Sessions Judge (Fast Track Court), Eluru in S.C.No.360 of 2000 on 14.10.2004. The appellants/accused were prosecuted for an offence under Section 302 read with Section 34 IPC by the Inspector of Police, Polavaram Circle alleging that the Forest Department established an association in the village in the name and style of ‘Vana Samarakashna Samithi’ and enlisted the villagers as members to safe guard the valuable trees and to raise valuable fruit trees. The deceased family members and A.3 are the members of the ‘Samithi’. On 16.1.1998, the deceased along with Kandelli Venkata Rao P.W.1, Torlapati Durgarao, P.W.2, Bommana Paddayya P.W.3 were in the Forest for safe guarding the valuables from cattle trespass and theft by villagers and at about 11.00 a.m they noticed Gella Venkata Sreenu Babu, M.S. Raju and his mother M.S. Akkamma carrying thorm bushes from the ‘Samithi’ area on their cycles, for which the deceased objected them and with intention to produce them before the Samithi President, he asked them to come along with him to the village, but they left the cycles and went away stating that they have no business to attend the Panchayat before the President and threatened him with dire consequences. On the same day in the evening at 4.00 p.m, P.Ws.1 to 3 brought the cycles to the village and handed over them to the President to enquire into the matter and while proceeding to home, at about 5.00 p.m when reached the house of Veeranki Venkatesh P.W.7 on the road, Gella Yedukondalu along with his brothers, Sreenu, Baburao and Geddam Yesu came across and Yedukondalu raised the stick in his hand to beat Moshe for detaining the cycles of his brother and M.S. Raju, when Moshe resisted the hit with his stick knife in his hand, Gella Yedukondalu (A.1) sustained a bleeding injury to his left hand by the stick knife of the deceased then the other accused 2 to 4 caught hold of Moshe firmly, when the stick knife fallen from the hands of the deceased, A.1 picked up the stick knife and hacked Moshe over back of the head and as a result of which the deceased fell down and Yedukondalu and his associates i.e., A.2 to A.4 left the place with the knife. P.W.1 with the assistance of P.W.5 lifted him to Dondapudi private hospital to render first aid but he succumbed to the knife injury and hence they brought back the dead body and kept at home. Later on he has gone to the police station and reported the matter at 8.00 a.m to the police. P.W.11 has registered the case in Crime No.4 of 1998 under Section 302 read with 34 IPC of Gopalapuram Police station on 16.1.1998 at 8.00 p.m and issued express FIR. P.W.12 took up the further investigation and held the inquest on the dead body of the deceased on 17.1.1998 before P.W.10 and others and sent the dead body of the deceased for postmortem examination. P.W.13 who conducted autopsy over the dead body of the deceased has opined that the deceased died due to shock and hemorrhage and as result of head injury, fracture of skull and the explosive and injury to the brain. P.W.12 has arrested the accused 2 to 4 on 18.1.1998 and A.1 on 20.2.1998 when discharged from the hospital and on his confession, the M.O.1 was seized before P.W.10 and others from the bushes near Allikalava of Karakapadu village limits and sent him to judicial custody. Hence, the accused are prosecuted for the offence under Section 302 read with 34 PC. The learned Sessions Judge framed the charge under Section 302 read with 34 IPC against all the accused and all the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge, examined P.Ws.1 to 13 and got marked Exs.P.1 to P.18 and M.Os.1 to 6. On behalf of the accused D.W.1 was examined and got marked Exs.D.1 to D.4. The learned Sessions Judge by taking into consideration of both oral and documentary evidence found the accused guilty for offence under Section 304 Part-II of IPC and thereby sentenced them to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.500/- each in default to under go simple imprisonment for a period of 3 months. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution is able to establish the offence under Section 304 Part-II of IPC against the accused beyond reasonable doubt? The learned counsel for the appellants pleaded that there are contradictions in the evidence of P.Ws.1 to 3 and the said contradictions are fatal to the case of the prosecution and there is enmity between the accused and the P.W.1 with regard to the marriage of P.W.5 and due to enmity a false case was foisted against the accused. The learned counsel has further pleaded that A.1 also received injury in the said incident and the prosecution has failed to explain the injury sustained by the accused and it is fatal to the case of the prosecution and in support of her contention she relied upon a decision rendered in Balwan Singh v. State of Haryana[1] wherein the Apex Court has held: “Failure to explain injuries on accused may not be fatal to the prosecution case and consequence of such failure would depend upon facts and circumstances of the case, nature of occurrence and nature of injuries suffered by the accused. However, mere fact that the prosecution does not necessarily give rise to an inference that there must have been a free fight.” The other decision relied upon by the learned counsel for the appellants in Adapa Gangadhara Rama Rao @ Gangadhar and others v. State of Andhra Pradesh[2] wherein the Apex Court has held: “Cases and counter cases both must be tried by one and same judge and must be disposed of simultaneously by him, otherwise, it is impossible to arrive at a definite conclusion as to genesis of incident and also fix up aggressor.” In the present case, even though P.W.5 and the Investigating Officer P.W.12 and the Sub Inspector of Police P.W.11 who registered the case have categorically stated about A.1 receiving the injury and P.W.11 has specifically stated that A-1 has come to the police station and lodged a report on 17.1.1998 at 7.30 a.m and the P.W.11 has registered a case in Crime No.3 of 1998 and A.1 was referred to the Government Hospital, Kovvuru. Even though the learned counsel for the appellants could able to establish about the registration of the case on the complaint given by A.1 for the injuries sustained by him, nothing was elicited by them who has caused the said injuries to A.1 and whether any charge sheet was filed by the police against the P.Ws.1 and 2 herein and no evidence was brought on record that a case was pending and the same was tried separately. In the absence of the same, the above decision of the Division Bench of this Court is not helpful to the learned counsel for the appellants. With regard to the other decision relied upon by the learned counsel for the appellants with regard to sustaining of injuries by A.1, it has to be examined in the circumstances of the cases whether the sustaining of injuries was explained by the prosecution and whether it is a fatal to the case of the prosecution. According to the prosecution, P.Ws.1 and 2 along with the deceased Moshe and B. Peddayya gone to the forest to safeguard the forest and cattle trespass and theft by villagers as they being the members of ‘Vana Samarakashna Samithi’ on 16.1.1998 in the morning at about 11.00 a.m they noticed Gella Venkata Sreenu Babu, M.S. Raju and his mother M.S. Akkamma carrying thorm bushes from the Samithi area on their cycles, for which the deceased objected them and with intention to produce them before the Samithi President, he asked them to come along with him to the village, but they left the cycles and went away stating that they have no business to attend the Panchayat before the President. On the same day in the evening at 4.00 p.m, P.Ws.1 to 3 brought the cycle to the village, handed over to the President to enquire into the matter and while proceeding to home, at about 5.00 p.m when reached the house of Veeranki Venkatesh P.W.7 on the road, Gella Yedukondalu (A.1) along with his brothers, Sreenu (A-2), Baburao (A-3) and Geddam Yesu (A.4) came across and Yedukondalu raised the stick in his hand to beat Moshe for detaining the cycles of his brother and M.S. Raju when Moshe resisted the hit with his stick knife in his hand, Gella Yedukondalu (A.1) sustained a bleeding injury to his left hand with the stick knife of the deceased then the other accused 2 to 4 caught hold of Moshe firmly, when the stick knife fallen from the hands of the deceased, A.1 picked up the stick knife and hacked Moshe over back of the head due to which he fell down and Yedukondalu and his associates A.2 to A.4 left the place with the knife. In order to establish the said averments, the P.W.1 who is the complainant has stated that on 16.1.1998 himself, P.Ws.2 and 3 and the deceased went to the forest of Urakonda for guarding and they found Golla Venkata Srinu, M.S. Raju and his mother Ankamma were returning from the forest on cutting the trees with the wood logs tied to the cycle and they stopped the two cycles with the wood. On that Venkata Sreenu A.2 proclaiming as ‘mee anthu chustanu’ left the place leaving the cycles. According to him, they kept for watch and they proceeded in to the forest. On the same day at about 5.00 p.m they handed over the cycles to the President of the Village Sri Bomma Lakshmi Narayna. The cycles were handed over to the female members of his family as he was not present by the time they went to his house. While he is locking that premises where the cycles were kept, P.Ws.2 and 3 and the deceased were proceeded to their houses. By the time they came upto the house of Veeranki Venktesulu P.W.7, A.1 came there and beat Moshe with a stick on his head. On that the said Moshe warded off the blow with a knife which is in his hand. Then A.2 to A.4 pushed down Moshes and on that the knife in the hands of Moshe fell to the ground. In the cross-examination, he denied that he has not stated before the police keeping of his brother Moshe as a watch to the cycles they went into the forest. He also denied that he has not stated before the police that the cycles were handed over to the lady family members of the President. He also denied that he has not stated before the police that he is locking the premises where the cycles were kept. The learned counsel for the appellants pleaded that the suggestion put in cross-examination to P.W.1 are contradicting and has not stated the same before the police as per the evidence of P.W.12 the Investigating Officer. P.W.12 who is the Investigating Officer has categorically stated that the P.W.1 has not stated that after keeping cycles while he is locking the premises, P.W.2, the deceased Moshe and P.W.3 proceeded a head of him. The P.W.1 not stated before him that A.1 beat his brother Moshe with a stick on his head. He also stated that he handed over the cycles and Kampa to the father of the Sarpanch. Therefore, the averments stated by P.W.1 with regard to the keeping of the deceased at the watch and proceeding to the forest and on return they are handed over the cycles to the female members of the family members of the President in the evening and about his locking the premises where the cycles were kept are the improvements made by P.W.1 in his evidence. P.W.2 Marlapati Durga Rao who is stated to be accompanying the P.W.1 and the deceased has stated in his chief-examination that he is also one of the members in ‘Vana Rakahana Samithi’. P.W.1, the deceased and others are all members in ‘Vana Samarakashna Samithi’. About 6 years back on Pandaga Day himself, P.W.3 went in one direction. The deceased and the P.W.1 went in another direction. On the same day at about 4.00 p.m the P.W.1 came to the place where they went and he stated that they apprehended Jalla China Sreenu, M.S.N. Raju and Akkmma while proceeding with Kampa on two cycles and on that they came to that cycles area. With those cycles they came to the house of the Surpanch of the village, but the President is not available at the house and the Kampa was handed over to the father of the President. The cycles were also kept in the back yard of that house of the Surpanch along with the Kampa and offered handing over they returned and going back to their houses and they are proceeding on after another and P.W.1 is following them. When they reaching the house of P.W.7, A.1 questioned the deceased for seizing of Kampa questioning, whether that Kampa belongs to his father? On that Moshe replied whether the forest is of his father to cut the Kampa? Then A.1 removing of the fencing, came up on P.W.1 armed with a Baditha and he hurtled of that Baditha against Moshe. He warded it of with his knife. Then A.2 to A.4 pushed their Moshe to the ground and A.1 hacked Moshee with that knife on the back side of his neck. Therefore, P.W.2 has not spoken any thing about A.2 and others taking away the Kampa on the cycles and he is not an eye witnesses to that incident. P.W.3 is the wife of the deceased and she is not an eye witness to the incident and she came to know about the incident through the villagers. Therefore, her evidence is of not much use for establishing the offence. P.W.4 Kandavalli Babu Rao who is the brother of the deceased has stated that his brother died on 16.1.1998. At the time of the incident at about 5.00 p.m, he is on the road in S.C.Peta of their village. It is being said there i.e., near the house of Veeranki Venkatesrulu, some persons are having Godava. He saw A.1 coming in opposite direction and he is having an injury on his left hand covering that injury he is returning accompanied by Babu Rao A.3. When he went ahead he saw the P.W.2 tying Bontha Rumalu to the head injury of his brother Moshe. The brother of Surpanch come with his Motor cycle and on that Motor Cycle his brother Moshe was shifted to Dondapudi Hospital. Therefore, P.W.4 is not an eye witness to the incident but he has only seen the deceased with injury. P.W.5 Bomma Nageswara who is the brother of the President, on 16.1.1998 his brother Lakshminarayana is not at the house. Then himself and his father are present. At that time between 4.00 to 5.00 p.m the deceased, P.W.1 came to them and produced two cycles along with some Golusu Kampa. They represented some of the villagers cutting and removing the Kampa from ‘Vanarakshana Samithi’ and they apprehended and they wanted to speak to his brother. He replied his brother Surpanch is not at the house and when they questioned what is to be done with the cycles he stated that the cycles to be kept with Kampa in the front yard of their house. Accordingly they kept the cycles there and went away. Thereafter between ½ an hour and one hour, he came to know a godava is being occurred in between the persons who placed the cycles with others near Harajana-vada at a little distance from his house. By the time, he went to the spot he noticed Moshe with an injury on his head and Venkatarao P.W1 applying bandage i.e., he is tying a towal for the injury. When he questioned, he was informed a godava and Moshe received injury. The said Moshe received a severe injury and blood is oozing out. In the cross-examination, nothing was elicited with regard to his taking the deceased to the hospital of Dondapudi. P.W.6 and P.W.7 who are said to be the witness for the seizure of the cycles by P.W.1 and they stated that the incident has taken place in the forest and they turned hostile to the prosecution. P.W.9 who is the Section Officer at Kannapuram Forest Range, Dondapudi Section has stated about his coming to know about the incident of murder of Moshe on 16.1.1998 when he was at the Range Office, Kanapuram. But in the cross-examination he denied that he has not stated before the police that the Kampa noticed at the President house is one relating to forest and he also denied that he has not stated before the police that himself, V.S.S. President and two V.S.S members accompanied and they all went to that place and noticed the cutting marks of stems in the reserve forest area i.e., Kampa Moulu. With regard to the said denials of the P.W.9, the Investigating Officer P.W.12 has also stated about P.W.9 is not stating to him about keeping the cycles in front of the house of the Surpanch. Therefore, the evidence of P.W.9 to that effect is an improvement made before this Court and it is contrary to the evidence given before the police. According to the Investigating Officer, P.W.12, he arrested the accused No.1 on 20.2.1998 and at his instance he recovered M.O.1 under the cover of Ex.P.12 in the presence of P.W.10. P.W.10 also supported the version of the Investigating Officer with regard to the seizing of the weapon at the instance of the accused No.1. Therefore, according to the prosecution, the cause of incident was that when P.Ws.1 and 2 and the deceased found the accused No.2 and M.S. Raju and his mother M.S. Ankamma carrying thorm bushes from the Samithi Area on their cycles and when they questioned and asked them to come to Surpanch, they refused to come there. Thereafter the cycles were taken to the President’s house and handed over to the female members of the family members of the President. With regard to the incident occurred at the reserve forest except P.W.1, there is no other evidence to establish the same and P.W.2 even though said to be present along with P.W.1 has stated in his chief- examination itself that about 6 years back on Peda Pandaga Day himself, L.W.3 gone in one direction and the deceased and the P.W.1 went in another direction. On the same day at about 4.00 p.m., the P.W.1 came t the place where they went and he stated that they apprehended Jalla China Sreenu, M.S.N. Raju and Ankamma while proceeding with Kampa on two cycles. On that they came to that cycles area. With those cycles they came to the house of the Surpanch of the village. The President is not available at the house. The Kampa was handed over to the father of the President. The cycles were also kept in the back yard of the house of the Surpanch along with the Kampa. Whereas the brother of P.W.5 has stated about the accused, P.Ws.1 and 2 and the deceased coming to the house of the President and when the President was not available in the house, the cycles were kept in backyard of the house of the President. But whereas P.W.1 has stated that he has kept the cycles along with the Kampa and locking the premises and the deceased, P.Ws.2 and 3 were proceeded to their houses. When the cycles and Kampa was kept in the backyard of the house of the President, the question of locking the premises does not arise as stated by P.W.1. In order to establish the said Kampa belongs to the reserve forest, the prosecution examined P.W.9 but he could not establish the said fact, as his evidence case to case is contrary to his statement given to the investigating officer. Therefore, in view of the contradictions in the evidence of P.W.9, his evidence cannot be relied upon. Theefore, there are number of contradictions in the evidence of P.W.1 with regard to the deceased keeping watch on the cycles and they proceeding to the reserve forest and handing over the cycles to the female members of the family members of the President and also locking the premises. Therefore, in view of the said contradictions, it is not safe to rely upon the evidence of P.W.1. As admitted by P.W.1 that the P.W.4 Kandavalli Babu Rao is his brother and he married one lady and his marriage was love marriage and the said marriage alliance did not like by his family members. P.W.2 also admitted about the same with regard to the marriage of P.W.4. P.W. 4 also admitted in the cross-examination that his marriage is a love marriage and his marriage alliance is not liked by his family members. Therefore, there is enmity between the accused family and the family of the P.Ws.1 and 2 and the deceased. Even though P.W.1 has stated that at the time of incident there are about 20 people gathered there but none of them were examined except the interested witnesses P.Ws.1 and 2 to speak about the incident. Therefore, in view of the disputes and enmity between the P.Ws.1 and 2 and accused No.1, it is not safe to rely upon their evidence without any corroboration. In the above circumstances of the case, it is to be examined with regard to the injuries sustained by the A.1. P.W.4 has stated that he saw A.1 coming in opposite direction and he is having an injury on his left hand and the said fact was established by the P.Ws.11 and 12 also. But the prosecution witnesses P.Ws.1 and 2 have explained about A.1 receiving the injuries. In view of the said explanation given by the prosecution witnesses the injuries received by A.1 is not much significance and it is not fatal to the prosecution. Even though the prosecution could able to establish about the death of the deceased Moshe on 16.1.1998, they could not establish that the accused are responsible for the death of the said deceased Moshe in view of the contradictions in the evidence of P.Ws.1, 2 and 5. Therefore, the prosecution could not establish the offence under Section 304 Part-II IPC against the accused beyond reasonable doubt. Hence, the accused are entitled for the benefit of doubt. In the result, the appeal is allowed and the conviction and sentence passed by the V Additional Sessions Judge (Fast Track Court), Eluru in S.C.No.360 of 2000 dated 14.10.2004 is hereby set aside and all the accused are acquitted. _____________________ P.DURGA PRASADJ. Date:18.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2248 OF 2004 Dated 18-02-2011 Gk. [1] (2006) 1 Supreme Court Cases (Cri) 108 [2] 2010(1) ALD (Crl.) 76 (AP)