THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO DATED: 20-07-2011 CRIMINAL APPEAL No. 1642 OF 2007 Between: Thiyyala Laxmanarao and four others ..... APPELLANTS AND The State of Andhra Pradesh, rep., by its Public Prosecutor, High Court of A.P., Hyderabad .....RESPONDENT THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No. 1642 OF 2007 JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) Seven persons stood for trial before the learned II Additional District and Sessions Judge (Fast Track Court), Srikakulam in S.C No. 45 of 2004 on nine charges. A-1 to A-7 were charged for the offence under Section 148 IPC; A-1, A-3 and A-4 were charged under Section 302 IPC for causing the death of Gonda Yerrayya (hereinafter referred to as the deceased); A-2 and A-5 to A-7 were charged under Section 302 read with Section 149 IPC; A-6 and A-5 were charged under Section 324 IPC; A-1 to A-4 and A-7 were charged under Section 324 read with Section 149 IPC; A-5 and A-6 were charged under Section 323 IPC and A-1 to A-4 and A-7 were charged under Section 323 read with Section 149 IPC. By judgment dated 16-11-2007, the appellants – A-1, A-3 and A-4 were convicted for the offence under section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for a period of six weeks and the appellants - A-5 and A-6 were convicted for the offence under Section 324 IPC and were sentenced to pay a fine of Rs.3,000 each, in default to suffer simple imprisonment for a period of six months. Whereas, A-2 and A-4 were acquitted and as A-8 was a juvenile, his case was referred to the juvenile Court. Hence the present appeal by the appellants – A-1, A-3, A-4, A-5 and A-6 challenging the conviction and sentence recorded against them. The prosecution story, as unfolded during the course of trial, briefly stated, is as under: The case of the prosecution is that on 31-03-2003 at about 5.00 PM, PW 1 returned home after attending agricultural coolie work and found A-1 and A-2 who are husband and wife abusing her mother-in- law on the pretext that PW 3 allowed their cow to go with the cow of A- 1 at about 3.00 PM. When PW 1 questioned A-1 and A-2 as to why they are abusing her mother-in-law, they grew wild and kicked PW 1 on her stomach. PW 3 and the mother-in-law of PW 1 who were present there rescued PW 1 and took her to a doctor. At about 6.30 PM, the deceased along with his brother PW 5 returned home after attending coolie work and came to know about the incident and questioned A-1 and A-2. On that, A-1 to A-8 formed themselves into an unlawful assembly. A-1 was armed with a knife, A-3 was armed with stout stick, A-4 was armed with an axe, A-6 was armed with a small spade (boriga) and A-7 was armed with a stout stick and they attacked the deceased and his family members. A-1 hacked the deceased on the backside of the head with a knife, A-3 struck the deceased on the right eye with a stick and A-4 axed the deceased on the front side of the head with an axe due to which the deceased fell unconscious. A-6 beat PW 2 with the handle of the spade on her left buttock and PW 5 was stuck with a stout stick on the left index finger. The deceased was shifted to Community Hospital, Narasannapeta, Srikakulam District. PW 11 – Civil Assistant Surgeon, Government Hospital, Narasannapeta treated the injured i.e., PWs 1, 2, 5 and the deceased and has sent an information to the Station House Officer, Narasannapeta. The Sub Inspector of Police, Polaki has recorded the statement of PW 1 and registered a case in Crime No.20 of 2003 under Sections 307, 324 and 323 read with Section 34 IPC against the accused. PW 11 referred the deceased to K.G.H Hospital, Visakhapatnam for treatment. He succumbed to the injuries on 07-05- 2003 while undergoing treatment and on receipt of the information, PW 13 - Assistant Sub Inspector of Police altered the section of law from 307 IPC to 302 IPC. After investigation, PW 14 filed charge sheet against A-1 to A-7 for the offences under Sections 147, 148, 302, 324, 323 read with Section 149 IPC before the learned Judicial Magistrate of First Class, Narsannapeta who registered it as PRC No. 4 of 2003 and later committed to the Court of Sessions. On committal, the learned District and Sessions Judge, Srikakulam registered the same as S.C No. 45 of 2004 and made over to the learned II Additional District and Sessions Judge, Srikakulam who framed the aforesaid charges against the accused, read over and explained the same to them. The accused pleaded not guilty and claimed to be tried. To substantiate the guilt of the accused, the prosecution examined PWs 1 to 14 and marked Exs.P-1 to P-32 and produced MOs 1 to 8. On behalf of the accused, none was examined, but Exs.D- 1 to D-5 were marked. The learned Sessions Judge after analyzing the evidence adduced by the prosecution held that the totality of the circumstances clearly shows that altercation took place between A-1’s family and PW 1’s family on a trivial issue which led to the attack on the deceased and PWs 2 and 5 during which A-1, A-3 and A-4 beat the deceased with MOs 4, 5 and 8 and caused injuries, particularly on the head with led to his death. The circumstances of the case further established that there are no previous grudges in between the disputed parties, but the attack has happened in a spur of anger, which shows the highhanded behaviour of A-1, A-3 to A-6. Even if it is observed that they have no intention to kill the deceased but the injuries found on the deceased, particularly the head injury and the weapons used by A-1, A-3 and A-4 reveals that they had knowledge about their acts which resulted into the death of the deceased. It was further held that though A-5 and A-6 caused simple hurts to PWs 2 and 5, as there are no grudges in between them, a lenient view can be taken and fine can be imposed against A-5 and A-6. Thus holding, the learned Sessions Judge convicted and sentenced the appellants – accused as stated hereinabove. Learned counsel for the appellants contends that no specific overt acts have been attributed to A-3 in Ex.P-1 complaint lodged by PW 1, but were attributed for the first time in the Court by PWs 1, 3, 4 and 5. The incident had taken place when the deceased and PW 5 went to the house of the accused and the offence took place due to sudden provocation made by the deceased and PW 5 and the accused without any premeditation caused the said injuries and the deceased died after forty days of the incident due to medical negligence. Therefore, the appellants cannot be convicted for the offence under Section 302 IPC but can be convicted under Section 304 Part II IPC. The learned Public Prosecutor sustained the conviction and sentence imposed on the appellants – accused stating that the accused who were aggressors attacked the deceased and PW 5 who were not armed and, therefore, they were rightly convicted of the offence punishable under Section 302 IPC. PW 1 is the injured witness and wife of PW 5 who is the elder brother of the deceased. She deposed that PW 2 is her uncle by courtesy and PW 3 is her son. On the date of the incident, her son PW 3 Ramaraju united the cows belonging to them for grazing purpose and when their cow went and tried to pierce the cow of A-1 with horns, then the cow of A-1 ran away. After her arrival to the house from the fields in the evening at 5.00 PM, she observed A-1 and A-2 abusing her mother-in-law. When she intervened and asked A-1 and A-2 that it is not proper on their part to abuse her mother-in-law and instructed them that they should have reported the matter to the elders about the incident, A-1 and A-2 kicked her resulting in stomach pain. Then she was taken to the cot and injection was given to her. Sometime thereafter, at about 6.00 or 6.30 PM, her husband PW 5 and the deceased arrived to the house after attending to their coolie work and they both went to the house of A-1 and A-2 and questioned their highhandedness. Then all the accused including A-8 came armed with sticks, knife and axe. A-1 beat the deceased on the backside of the head with knife; A-4 beat the deceased on his forehead with axe; A-3 beat the deceased with a stick over the ear and A-6 beat PW 5 on his left hand finger with spade. A-5 hit PW 2 on his buttock with wooden handle of spade. The deceased lost his conscious due to the beatings and he was taken to the Government Hospital, Narasannapeta with the help of PW 2. PW 1 stated that herself and her husband PW 5 also accompanied the deceased to the government hospital where the deceased was referred to K.G.H., Visakhapatnam and that she was also examined by the doctor for her stomach pain. In the cross examination, PW 1 stated that the house of A-1 and A-2 is situated at the end of the street of Satyanarayanapuram Colony and the deceased was unconscious throughout his treatment in the Government Hospital, Narasanapet as well as at KGH, Visakhapatnam and did not talk with any body. PW 2 is not an eye witness to the incident though in the chief examination stated about his noticing A-1 to A-7 beating the deceased, but in the cross examination he stated that he did not state that he witnessed the beating of the deceased by the accused. PW 3 who is the son of PW 1 and PW 5 stated that A-1 beat the deceased on his back of head with a knife, A-4 beat the deceased on his forehead with an axe. A-3 beat the deceased in between right ear and the temporal region with a stick and A-6 beat PW 5 with a stick on his left hand index finger. In the cross examination, PW 3 stated that he did not state before as contained in Ex.P-4 that A-3 beat the deceased on his forehead. PW 4 also deposed on similar lines about the individual overt acts to A-1, A-4 and A-5. It is specifically stated that A-3 also beat the deceased between his ear and temporal region. PW 6 is the Professor of Forensic Medicine in Andhra Medical College, Visakhapatnam who conducted post mortem examination of the deceased and found the following injuries: 1. Oblique based infected surgically sutured wound of 10 cm in length with five stitches present on occipital region of the scalp. 2. An infected surgically sutured wound of ½ cm length with one stitch present on upper right part of occipital region of the scalp. 3. A healed semi circular surgically sutured wound of 15 ½ cms in length with healed surgical stitch marks present on right frontal, right parietal, right temporal regions of the scalp. 4. An infected abrasion of 4x2 cm present on right ear. 5. An infected abrasion of 3 ½ x 2 ½ cm present on outer part of right shoulder region. 6. An infected abrasion of 2 ½ x 2 cm present on back of right elbow. 7. An abrasion of 2 ½ x 1 cm present on top of left shoulder region. 8. An infected abrasion of 2 x 1 cm present on outer aspect of upper part of right leg. 9. An infected abrasion of 2 x 1 cm present on outer aspect of right ankle. 10. An infected abrasion of 1 ½ x 1 cm present on inner aspect of left knee. 11. An infected abrasion of 1 x 1 cm present on front of left knee. 12. An infected abrasion of 1 x ½ cm present on inner aspect of left ankle. 13. Defuse contusion over the scalp present. 14. An irregular piece of 12 x 3 ½ cm of skull bone surgically removed from right frontal, right parietal bones of the scalp with a twistured radiating fracture of 5 cm in length on to right temporal bone of the scalp and another fishered radiating fracture of 4 cm in length on facial part of right parietal bone of scalp another fishered radiating fracture of 5 ½ cm in length on right frontal bone of scalp another fishered radiating fracture of 6 cm in length on right parietal bone of scalp. Both of these fishered radiating fractures uniting at the coronal sutiure on bold of the head and continued as suitioral fracture of coronal sutiture of a length of 9 cm. Surgical suitures found durameter at the criniatomy wound. The wound is infected fues is found on the underline jura etc, jural, himotoma of 5 x 4 x ¼ cm present at the side. 15. An irregularly curvex semi circular cut fracture of 5 ½ cm in length present on occipital region of the scalp. 16. Contusion abrasion of 2 x 1 cm present on right parietal robe of the brain. ” PW 6 issued post mortem examination certificate Ex.P-2 opining that the deceased died due to head injury of the scalp and infection of membrane of the brain and injury to the brain. According to him, external injury No.3 is corresponding to internal injury No.14. External injury Nos.1 and 2 are corresponding to internal injury No.15. Injury No.2 and the corresponding injury No.15 are possible with a weapon like sharp edged heavy knife shown to him. The injury on right temporal region of scalp covered under injury No.3 may be possible with a weapon like a stick shown to him if it is used with considerable force. In the cross examination, PW 6 stated that part of the skull was removed to his observation and the same was not refixed and he cannot say whether the infected wounds are due to medical negligence and there is a possibility of getting the wounds mentioned in the post mortem certificate infected due to non-providing of medical treatment in time. From the above, it is clear that the evidence adduced by the prosecution clearly establishes that A-1, A-3 and A-4 beat the deceased which lends corroboration from the confessional statement made by the accused during their arrest by PW14 Investigating Officer. PW 2 received injuries in the hands of A-5 who beat him with wooden portion of spade recovered from him. Similarly PW 5 also received injury at the hands of A-6 as he was beaten by A-6 with MO 7 stick recovered from him as per the confessional statement as spoken to by PWs 12 and 14. Therefore, the prosecution clearly established that A-1, A-3 and A-4 beat the deceased with Mos 4 and 5 knife and stick by A-3 and MO 8 axe by A-4. In the circumstances, non- mentioning of the overt acts attributed to A-3 in Ex.P-1 will not be of any help to A-3 in view of the voluminous oral evidence adduced by the witnesses. That apart, non-attribution of overt acts in Ex.P-1 pales into insignificance as Ex.P-1 is not a substantive evidence and can be used only for corroboration or for contradiction. The contention advanced by the learned counsel for the appellant is that there is no premeditation on the part of the accused and it is the deceased and PW 5 who are the aggressors and visited the house of A-1 and A-2 and ensued a quarrel and they have taken up the weapons available in the house in a sudden passion, therefore, they cannot be convicted for the offence under Section 302 IPC, but they can be convicted under Section 304 Part II IPC. The offence committed will not come under any of the exceptions under Section 300 IPC though it was without any premeditation and acted in a spur of moment, as the accused used heavy weapons in attacking the deceased and inflicted injuries resulting in the death of the deceased. In view of the same, the conviction and sentence recorded by the trial Court for the offence under sections is justified. In the result, the appeal fails and shall accordingly stand dismissed. A. GOPAL REDDY, J RAJA ELANGO, J 20-07-2011 ks