THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.1248 of 2002 JUDGMENT: 1. This appeal by appellant/A.1 filed under Section 374(2) Cr.P.C., is directed against the judgment dated 31.10.2002 in Sessions Case No.36 of 1998 on the file of the II Additional District and Sessions Judge, Fast Track Court, Srikakulam, whereunder and whereby the appellant/A.1 is convicted of the offences punishable- under Section 325 I.P.C. and sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.500/- in default to suffer simple imprisonment for two months; under Section 448 I.P.C. and sentenced to pay fine of Rs.100/- in default to suffer simple imprisonment for 10 days. 2. The case of the prosecution, in brief, may be stated as follows: A.1 and A.2 are sons of A.3 and A.4. At about 7.00 PM on 27.8.1997, A.1 to A.4, with a common intention to kill one Agguna Gopal (hereinafter referred to as ‘the deceased’), trespassed into his house, beat him with their hands indiscriminately all over the body and killed him. P.Ws. 2 to 6 witnessed the occurrence. There was a rumor in the village that the deceased used to practice witchcraft. As A.1 fell sick for about 10 days, he suspected that due to the performance of witchcraft by the deceased, he fell sick. Prior to the incident at about 5.00 PM on the same day, when the deceased went to shop of A.1 for consuming arrack, A.1 asked him about the wages due to him for cutting bamboos in the field of deceased, and in this connection, there was an exchange of hot words between A.1 and deceased and A.1 forcibly took the stick from the hand of deceased and beat him indiscriminately. On seeing this, P.W.1 questioned A.1 and took the deceased to house. After coming to know about the death of the deceased, P.W.1 lodged Ex.P1, and basing on the same, P.W.16 registered the case for the offence under Section 302 read with 34 I.P.C. Police visited the scene of offence, seized the hand stick, cigars, blood stained earth and control earth, under cover of mediators report, and prepared Ex.P8 rough sketch and got photographed the scene. Thereafter, inquest was held on the dead body of the deceased in the presence of mediators, and the dead body was sent for post mortem examination, and after completion of investigation, charge sheet is laid. 3. When charges for the offences punishable under Sections 448 and 302 read with 34 I.P.C. were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 17 and got marked Exs.P1 to P18, besides case properties M.Os. 1 to 4. No oral or documentary evidence was adduced on behalf of the defence. 5. The trial court, upon appreciation of the evidence on record, found A.1 to A.4 not guilty of the charge for the offence punishable under Section 302 read with 34 I.P.C. and also found A.2 to A.4 not guilty of the charge for the offence punishable under Section 448 I.P.C., and accordingly acquitted them, while convicting and sentencing the appellant/A.1 of the offences punishable under Sections 448 and 325 I.P.C. as stated supra. Challenging the same, the present appeal is preferred by the appellant/A.1. 6. Now, the point for determination is whether the judgment of the trial Court is correct, legal and proper, and whether it is liable to be confirmed or modified ? 7. The learned counsel for the appellant contended that, the judgment of the trial Court is based upon surmises and conjectures and there is no evidence to show that the injury on the neck endangers life of the deceased; that, the Doctor, who conducted post mortem examination, was not examined; that, the trial Court, having given a benefit of doubt to A.2 to A.4, ought to have extended the same benefit to appellant/A.1 also as the evidence against all the accused is one and the same. Hence, he prayed to set aside convictions and sentences recorded against the appellant/A.1. 8. On the other hand, the learned counsel representing the Public Prosecutor contended that, the evidence of P.Ws. 3 and 5 would clearly go to show that the present appellant trampled on the neck of the deceased; that, as the neck is a vital part, the said act endangers life of an individual; that the trial court, after elaborate consideration of the evidence on record, rightly found the appellant guilty and there are no grounds to interfere with the same. Hence, she prayed to dismiss the Criminal Appeal. 9. Originally, police laid charge sheet against four accused for the offences punishable under Sections 448 and 302 read with 34 I.P.C. A.2 to A.4 were acquitted mainly on the ground that their presence has not been stated by P.W.3. As P.W.3 specifically stated about the overt-acts against the appellant/A.1 in causing injury on the neck, the learned Judge, considered it as an act endangering life and accordingly found him guilty. 10. The Doctor, who conducted autopsy on the deceased, was not examined because he is no more. As required under Section 47 of the Indian Evidence Act, 1872, P.W.17, who is acquainted with the hand-writing of the Doctor who conducted autopsy, was examined to prove Ex.P17. Therefore, the evidence of P.W.17, who is acquainted with the hand-writing and the signature of the Doctor, who conducted autopsy, would clearly go to show that Ex.P17 appears to be a correct one. As seen from Ex.P17-post mortem report, cause of death of the deceased was due to shock due to injury on left temporal region and internal injury to lung. Even according to the evidence of P.W.3 it is clear that injury on left temporal has not been caused by the present appellant. Similarly, the appellant has not caused any injury to the lung. There is absolutely no evidence to show how the lung injury of deceased was caused. Basing on the solitary evidence of P.W.3, the learned Sessions Judge came to the conclusion that the said act endangers life of an individual. There is no injury on the neck as such. One contusion was found on the right upper part of the neck extending from lateral part of back of neck. Similarly, there is a contusion on the back of right ear measuring 4 cm x 4 cm x 2 cm with a small laceration 1 cm x 1 cm x 1 cm. As the Doctor, who conducted autopsy, was not examined, the accused is deprived of his right of cross- examination as to whether the injury no.1 in Ex.P17 endangers life of an individual or not. No doubt, neck is a vital part of the body, but, at the same time, trampling with legs would depend upon the pressure or force used by the accused. P.W.3 simply stated that the accused trampled the deceased with legs. There was no evidence to show that the said trampling would endanger life of the deceased. Therefore, the act of the appellant would not fall under any one of the clauses under Section 320 I.P.C. If the evidence of P.W.3 is to be accepted, then the act of the appellant would come under the purview of Section 323 I.P.C. 11. No doubt, A.2 to A.4 were acquitted on the ground that no overt-acts are attributed against them by P.W.3. When evidence consists of truth and falsehood, the Court can exercise the task of separating the truth from falsehood. However, when the truth and falsehood are inextricably mixed up and when it is not possible to disengage the truth from falsehood, then the only course left open is to reject the entire evidence. When it is possible to separate the truth from falsehood, the Court can act upon the true statement of a witness and reject the false evidence. Perhaps, that is the reason why the evidence of P.W.5 was not accepted totally as P.W.5 stated that all the accused beat the deceased. Participation and attack on the deceased by the appellant, as one of the assailants, as spoken by P.W.5, was used to corroborate the evidence of P.W.3. Therefore, the contention that having given a benefit of doubt to A.2 to A.4, the same should have been extended to the appellant/A.1 also, cannot be accepted. As seen from the evidence of P.W.3, the appellant voluntarily caused simple hurt which is punishable under Section 323 I.P.C. Hence, the appellant is liable to be convicted of the offences under Sections 323 and 448 I.P.C. 12. In the result, the conviction and sentence recorded against the appellant/A.1 of the offence under Section 325 I.P.C. is set aside. The appellant/A.1 is found guilty of the offence punishable under Section 323 I.P.C., accordingly convicted and sentenced to undergo imprisonment which he had already undergone during trial, investigation and after conviction. The conviction and sentence recorded by the trial Court of the offence under Section 448 I.P.C. are confirmed. 13. With the above modification, the Criminal Appeal is partly allowed. --------------------- (K.C.Bhanu, J.) 13.8.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 1248 of 2002 Date: 13.8.2009 Between: Gurru Babu Rao, s/o. Ramamurthy …Appellant/A.1 and State, rep. by the Public Prosecutor, High Court of A.P., Hyderabad …Respondent This Court made the following: