HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.178 of 2008 DATE:22.11.2011 BETWEEN: Buradagunta Bujjibabu @ Chinnalu and others .. Appellants/A1 to 3 & 5 And State of A.P. Rep. by its Public Prosecutor Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.178 of 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) The appellants/A1 to 3 and A-5 were tried by the II Additional Sessions Judge Guntur in S.C.No.694 of 2003 on four charges i.e. for the offences under Sections 148, 324, 302 and 302 r/w 149 of IPC and were convicted thereunder. A-1 and A-3 were sentenced to undergo imprisonment for life and fine of Rs.5,000/- each, in default to suffer simple imprisonment for one year for the offence under Section 302 IPC. A-2 and A-5 were sentenced to undergo imprisonment for life and fine of Rs.5,000/- each, in default to suffer simple imprisonment for one year for the offence punishable under Section 302 r/w 149 IPC. A-1, A-2, A-3 and A-5 were further sentenced to undergo rigorous imprisonment for one year each and simple imprisonment for six months each for the offences punishable under Sections 148 and 324 IPC respectively. The learned Sessions Judge directed that the substantive sentences awarded to A-1, A-2, A-3 and A-5 to run concurrently. 2. The substance of the charge against the accused is that on 03.07.2003 at 5.00 PM near the house of the deceased situated at 3rd line, Malapalli of Jonnalagadda Village, by forming into unlawful assembly with the common intention, the accused committed the murder of one Naladi Chittibabu (hereinafter called as “the deceased”) by stabbing with knife and also voluntarily caused hurt to PW-2 (Naladi Bhushanam) on his back with a stick. 3. The case against the accused, as per the evidence of prosecution during the course of trial, briefly stated is as under: On 03.07.2003 at about 5.00 p.m. when PWs.1 and 2 were at the house and the deceased was inside the house, A1 to A3 and A5 came there with knives and sticks, A3 beat PW.2 with stick on chest, PW.1 and PW.2 raised cries and on hearing the cries of PWs.1 and 2, the deceased came out of the house. Immediately A1 attacked the deceased with knife while A2 and A3 caught hold of the deceased. PW.1 interfered and caught hold of the knife in the hands of A1 and in that action, PW.1 stabbed the deceased on chest and left armpit and the deceased fell down with injuries. PW.1 raised cries and on hearing the cries of PW.1, neighbours gathered there. A3 beat PW.2 with sticks. PWs.1 and 2 shifted the deceased to the Government General Hospital, Guntur. The doctors at hospital declared the deceased dead. PWs.1 and 2 were examined by the doctors and first aid was given. Thereafter, PWs.1 and 2 went to Taluk Police Station, Guntur and submitted a report. PW.13-Sub-Inspector of Police recorded the statement of PW.1 and registered a case in Crime No.182 of 2003 for the offences under Sections 147, 148, 324 and 302 read with 149 IPC and issued Ex.P.10-first information report. PW.14-C.I. of police, Guntur after receiving Ex.P.10-FIR, took up further investigation and conducted inquest in the presence of PW.8 and others and prepared Ex.P.2-observation report and Ex.P.11-rough sketch and seized MO7 blood stained earth and MO8-control earth from the scene of offence. During the inquest, he recorded the statements of PWs.1 to 5. Ex.P.3 is the inquest report. PW.14 sent the dead body for postmortem examination. PW.11-Assistant Professor, Department of Forensic Medicine, Guntur conducted autopsy over the dead body of the deceased on 04.07.2003 at 2.00 PM and opined that the cause of death was due to stab injury to chest. Ex.P.7 is the postmortem certificate. PW.14 arrested the accused on 11.07.2003 in the presence of PW.9 and others and recorded confessional statements of all the accused. Ex.P.4 is the mediators report. Under Ex.P.5 weapons were recovered from A1 and A3. After completion of investigation, he filed the charge sheet against the accused on 03.10.2003. 4. On committal, the Court of Session made over the case to the trial Court and on receipt of the same, the trial Court framed the aforementioned charges against the accused, read over and explained to them for which they pleaded not guilty and claimed to be tried. 5. To prove the accusation made against the accused, the prosecution examined PWs. 1 to 14, marked 12 documents as Exs.P1 to P-12 and exhibited MOs.1 to 8. No oral or documentary evidence was adduced by the accused in their defence. 6. PW.-1 is the wife, PW.2 is the father, PW.3 is the brother, PW.4 is the brother-in-law, and PW.5 is the mother of the deceased. PWs.6 and 7 are also relatives and neighbours of the deceased. Among them PW.1 and 2 are the injured eyewitnesses and whereas, PWs.3, 5, 6 and 7 were examined as eyewitnesses to the occurrence. 7. PW.1, the wife of the deceased who set the criminal law into motion gave statement under Ex.P.1 to PW.13-Sub-Inspector of Police, on the basis of which he registered a case in Crime No.182 of 2003 for the offences under Sections 147, 148, 324, 302 r/w 149 IPC against A1 to A3 and A5 and another person A4, aged 12 years, who was tried as juvenile and a separate charge sheet has been filed and he was found not guilty for the offences punishable under Sections 147, 148, 302 read with 149 IPC, but he was found guilty only for the offence punishable under Section 324 IPC by the IV Additional Metropolitan Magistrate for Juvenile, Vijayawada in J.C.C.No.197 of 2003. 8. PW.1 stated in her evidence that on the date of the incident at 5.00 PM herself, her husband and her father-in-law PW-2 were at their house and her deceased husband was inside the house, A1 to A3 and A5 came to their house with knives and sticks and A3 beat PW.2 with stick on his chest. Herself and PW.2 raised cries, on hearing their cries, her husband came out of the house. Immediately A1 attacked the deceased with knife and poked him on his chest with knife while A2 and A3 caught hold of the deceased. When she intervened and caught hold of the knife in the hands of A1, her right hand palm was cut. A3 took knife from her and stabbed her husband on his chest and on his left armpit. When the deceased fell down, she raised cries and on hearing cries, the neighbours gathered there. A3 kicked PW.1 and beat him with stick. They shifted the deceased to the Government Hospital, Guntur. On examination, the doctor declared the deceased dead. Herself and PW.2 were examined by the doctor and were given first aid. Thereafter, she went to Taluk Police Station, Guntur and lodged a report. The police recorded her statement at 10.00 PM. In the cross-examination she deposed that PW.3 was available at their house at the time of incident, and on receipt of three stab injuries, the deceased fell in unconscious state of mind. She further deposed that the deceased took his food at 3 PM with curry of Thotakura leaves with dall. PW.2 also deposed in his evidence that when himself and PW.1 were present in front of their house, A3 beat him with a stick, then he fell down and A1 to A3, and A5 also kicked him. After hearing their cries, the deceased came out of the house, A2 and A3 caught hold of the deceased, then A1 poked the deceased with knife on his chest, then PW.1 interfered and picked up the knife from the hands of A-1, then A3 picked up knife from the hands of PW.1 and poked the deceased on his chest and on his left arm pit. PW-2 and PW.1 shifted the deceased to Government General Hospital, Guntur where the doctor examined and declared him dead. The doctor examined him and PW-1 and gave first aid. He further deposed that earlier to the incident, there was another incident occurred on 06.04.2003 at 10.30 AM, on which day one Parameshwara Rao, father of A3 came just to their house and abused them and then he asked him as to why he was abusing them. In the cross-examination, he deposed that when the deceased was in standing posture, he received three stab injuries and after his falling down, he has not received any stab injuries. He stated that he lifted the deceased in the auto to go to Government Hospital, Guntur and while they were taking the deceased to the hospital, he was having some life line and PW-2 received blood stains from the deceased in the auto as the deceased fell on him in the auto. When PW.1 shown her injuries to the doctor, he gave first aid to her by covering the injury with bandage and on that day they were in the hospital till 10.00 PM and on the next day at about 7 or 8 AM the police came to their village and examined him. PW.3, who is the brother of the deceased also deposed in his evidence that when he reached the house, A3 was beating PW.2 with stick, then his deceased brother came out of their house, then A2 and A3 caught hold of the deceased, A1 poked the deceased on his chest and left side armpit and the deceased received bleeding injuries. He admitted in the cross- examination that he is an accused in the case filed by the father of A3 and others in C.C.No.260 of 2003 on the file of Mobile Magistrate, Guntur and in that case, the deceased was also one of the accused along with PW.2, PW-3, Naladi Akkulu and Naladi Harinarayana and in that case, father of A3 did not state anything against them and he along with other witnesses denied the entire incident. He further stated that in connection with this case, police came to their village at 8.30 PM on the date of incident and the neighbours were present at that time. He went to the police station at 10 PM on the date of incident and they were examined by the police. PW.4, the brother-in-law of the deceased stated that by the time he went to the scene of offence, the entire incident was over and he saw the deceased on the ground with injuries. PW.5 who is the mother of the deceased corroborated the evidence of PWs.1 and 2 in the manner in which the attack has taken place. PW.6, the neighbour of the deceased stated that he saw all the accused beating PW.2 with sticks, that A2 and one Sunil caught hold of the deceased, A1 poked the deceased on his chest with knife. In the cross-examination he deposed that except the family members f the deceased, no other members were present on hearing cries from them and he did not state before the police in the earlier statement that Sunil picked up knife from the hands of A1 and poked on his chest. PW.7 is the maternal aunt of the deceased and she is also an eyewitness to the incident. Nothing was elicited in the cross-examination from her, except stating that she is having eye sight problem since five years and she went to the scene of offence and saw PW.2 at the scene of offence. PW.12, doctor, who issued Ex.P.8 and P.9-wound certificates to PWs.1 and 2 stated that at 11.55 PM he examined PWs.1 and 2. PW.11- the doctor, who conducted postmortem examination over the deadbody of the deceased found the following six injuries: 1. An elliptical shaped stab injury of 3 x 2 cm bone deep over the front of the left side of the chest 13 cm below centre of left clavicle and 5 cm above the left nipple with fat protruding cut of it. It is directed towards medial end downwards. On further dissection it pierced the second and third intercostals space and pierced the upper lobe of left lung – about 300 cc of blood seen in plural cavity. 2. Obliquely placed elliptical stab of 2.5 cm x 2 cm x bone deep. Present over the front of the left side of the chest 0.5 cm away from the centre and 10 cm below the sternal notch and 10 cm above zxiphiod process and it is directed towards medial end. On further dissection it pierced the second intercostals space and entered the plural cavity to pierced the upper lobe of left lung and right auricle about 50 c.c. of blood seen in plural cavity. 3. Oblique placed elliptical tab wound of 3 cm x 2 cm x bone deep placed over the front of chest in the middle with tailing on to the injury No.2. It is directed laterally and down wards. 4. Contused abrasion of 3.5 x 2 cm over the left cheek obliquely placed 5 cm below the outer angle of left eye. Reddish brown in colour. 5. Obliquely placed lacerated would of x 2 cm x skin deep over the inner side and posterior aspect of left arm pit 9 cm below the left arm pit. 18 cm above the left elbow joint. 6. Obliquely placed lacerated would of 1 x 1.5 cm x skin deep placed over the front of right upper arm in its lower 1/3rd , 5 cm above the elbow joint and 21 cm below tip of the right shoulder. The doctor stated that all the internal organs were congested, left lung and plura and heart are as described in the injuries column, stomach contain about 150 grams of semi digested food rice and dall with normal mucosa and no specific smell and issued Ex.P.7-postmortem certificate showing that the cause of death is due to stabbing injury to the chest. In the cross-examination he deposed that the injuries 1 and 2 can be caused by similar weapon or by a single weapon with same dimensions and the injuries can be caused by double edged weapon, injury No.4 can be caused either by a stick or contact with hard surface, injury Nos.5 and 6 can be caused by two different objects, injury No.5 by itself is not a fatal, so also injury No.6. MOs. 5 and 6 are single edged weapons and the deceased might have died six hours after taking his meals. PW.13, Sub-Inspector of Police, who recorded the statements and registered the crime stated in the cross-examination that as per Ex.P.1, two knives were used in the commission of the offence, A1 and A.3 were armed with two different knives as per the statement of PW.1 as in Ex.P.1, that as per Ex.P-1 the deceased received two stab injuries on the chest and one stab injury on arm pit and there is no specific mention in Ex.P-1 about the presence of PW-3 at the time of alleged offence. PW.14, the investigating officer stated in his evidence that on receipt of the information about rioting occurred in Jonnalagadda village, he proceeded along with his staff and he remained there to maintain law and order, and at 0.30 hours on receipt of FIR-Ex.P.10 he took up investigation, that as per the confession of A1, MOs. 5 and 6 knives used in the commission of offence were recovered which were produced by A3 from his house. 9. After analyzing the above evidence, the learned Sessions Judge found the accused guilty for the offences with which they stood charged and sentenced them as aforementioned. 10. Smt A.Gayathri Reddy, learned counsel appearing for the appellants strenuously contended that all the eyewitnesses to the incident are related with each other and their ocular testimony has not been corroborated with the medical evidence, that the evidence of PW.1, 2, 6 and 7 is parrot like repetition which appears to have been tutored by the police about the attack. It is further contended that when PWs.1 and 2 stated about the use of only one knife by A1, whereas the doctor gave an opinion that the injuries 1 and 2 can be caused by similar weapon and might be caused by double edged weapon, but MO5 is a single edged weapon and therefore, the said evidence is contradicting with the medical evidence. Whereas, PW.11, the doctor stated that the deceased died six hours after taking his meals is also not corroborated. PW.1 stated that she gave food to the deceased at 3.00 PM and the incident had occurred at 5 PM. Therefore, there is a discrepancy with regard to the time of the offence and the incident had not happened in the manner as projected by the prosecution. It is further contended that when the police visited the scene of offence at 7.00 or 8.00 PM on the same day, they have not made any further enquiry by visiting the hospital to know the incident which clearly shows that the prosecution created the story of attacking the deceased. Therefore, the accused are entitled to benefit of doubt. She further contends that when the prosecution failed to establish the forming of unlawful assembly with common object, A2 and A5 cannot be convicted for the offence under Section 302 read with 149 IPC, particularly when A4 has been acquitted of the said charge. In such a case, the individual overt acts theory has to be followed as held by the Supreme Court in MALLAPPA AND OTHERS v STATE OF KARNATAKA[1], which is extracted below: “The overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinizing the evidence. If such overt acts are mentioned consistently right from the stage of the FIR and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed, could safely be held to be members of the unlawful assembly with the common object of committing those offences.” 11. In support of her contentions, the learned counsel appearing for appellants also relied on CHANDRA BIHARI GAUTAM AND OTHERS v STATE OF BIHAR[2] , TAMBI SRINU @ SRINIVASULU AND OTHES v STATE OF A.P[3], MOTI v STATE OF U.P[4], VADLAMUDI GIRIDHAR NAIDU v STATE OF A.P. REP.BY P.P. HIGH COURT OF A.P., HYDERABAD[5], PULLAREDDIGARI VENKATRAMANA REDDY v STATE OF A.P.[6], KULDIP YADAV ANDOTHERS v STATE OF BIHAR[7]. 12. Per contra, the learned Additional Public Prosecutor sought to sustain the conviction and sentence recorded by the trial Court contending that merely because the witnesses are related to with each other, their evidence cannot be discarded when the omissions and contradictions of prosecution witnesses could not destroy the case of the prosecution which would not go to the root of the prosecution case, that some discrepancies in the evidence of the witnesses who are rustic villagers, their evidence should not be discarded. 13. In the light of the above submissions, the point that arises for consideration is whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt for the offences with which they stood charged and the convictions and sentences recorded by the trial court are liable to be set aside or modified. 14. The evidence of PWs.1, 2, and 3 who are the wife, father and brother of the deceased is identical to the manner in which the accused attacked the deceased with knife and inflicted injuries. The evidence of PW.7, senior paternal aunt, who resides in the same village also lends support to the case of the prosecution and the evidence of PWs.1 to 3. According to the eyewitnesses when A2 beat PW.2 with stick, he and PW.1 raised cries and the deceased who was in the house came out of the house, then A1 attacked the deceased with knife and poked him on his chest while A2 and A3 caught hold of the deceased and when PW.1 interfered and caught hold of the knife, she also received injury to the right hand palm, as per the evidence of the doctor, PW.12, who issued wound certificate under Ex.P.8. Therefore, her presence in the house is natural at the time of the offence and her evidence cannot be discarded merely because there is some discrepancy with regard to stabbing of the deceased number of times by the accused. The learned counsel appearing for the appellants pointed out the discrepancy in the evidence of PW.1 and PW.2 with regard to the attack. According to PW-1, A3 took the knife and stabbed her husband on his chest and left armpit and in the cross- examination she admitted about receiving of three stab injuries by the deceased after he fell down. Whereas PW.2 in the cross-examination stated that the deceased received three stab injuries when he was in standing position and after his falling down, he has not received any stab injuries. Whereas, PW-11, the doctor found six stab injuries over the body of the deceased. Moreover, the evidence of PW.1 shows that the deceased received three injuries. Further, the ocular testimony of PW.2 is corroborated with the medical evidence. Added to the same, PW-1 is injured witness and credence shall be given to her evidence and the same will not go to the root of the prosecution case. The said discrepancy in the evidence itself will not destroy the case of the prosecution when PW-11, the doctor certified that the first two injuries are sufficient for causing the death of the deceased. The injured witnesses PWs.1 and 2 have stated about inflicting of the injuries by A1 and A3 and A2 catching hold of the deceased. Therefore, A1 and A3 who were participated in the commission of offence can be convicted for the offence under Section 302 IPC and A-2 can be convicted for the offence punishable under Section 302 r/w 34 of IPC. Further, as the prosecution failed to establish the forming of unlawful assembly of the accused in prosecution of their common object, A5 who is said to be a member of such assembly can not be convicted for the offence under Section 302 IPC with the aid of Section 149 IPC. Further, none of the witnesses speak about the overt acts attributed to A-5 and therefore, A-5 cannot be convicted for the offence under Section 302 read with 149 IPC. Hence, A5 is entitled for acquittal. 15. Coming to the conviction for the offence under Section 324 IPC against A-1, A-2, A-3 and A-5, PW-12, the doctor, who examined PW.2 stated that no injuries were found on the person of PW-2 and he complained bodily pains. That being the case, A5 beat the deceased with a stick has not been established by the prosecution. Therefore, we cannot convict A5 and A-1 to A-3 for the offence under Section 324 IPC. The prosecution failed to establish the commission of rioting by forming into unlawful assembly by the accused, and therefore, the appellants cannot be convicted for the offence punishable under Section 148 of IPC. 16. IN THE RESULT, the convictions and sentences imposed by the II Additional Sessions Judge, Guntur in S.C.No.694 of 2003, dated 07.01.2008 are hereby set aside against Accused No.5 and he is acquitted of all the charges with which he stood charged. He shall be set at liberty forthwith, if not required in any other crime. The fine amount, if any, paid by A-5 shall be refunded to him. A-1 to A-3 are found not guilty of the offences punishable under Sections 148 and 324 of IPC and accordingly, they are acquitted of the said charges. But, A1 and A3 are found guilty of the offence punishable under Section 302 IPC, convicted thereunder and they are sentenced to undergo imprisonment for life and fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of one year. A2 is found guilty of the offence punishable under Section 302 r/w 34 IPC, convicted thereunder and he is sentenced to undergo imprisonment for life and