THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1344 OF 2004 ORDER: This appeal is directed against the conviction and sentenced passed in S.C.No.52 of 2001 by the II Additional District and Sessions Judge (Fast Track Court), Srikakulam on 31.05.2004. The appellants herein were prosecuted for the offences under Sections 302 and 324 IPC alleging that the deceased Yenda Sriramulu and accused No.1 are brothers, accused Nos.2 and 3 are the sons of accused No.1. There are differences between accused No.1 and deceased since 5 years as the deceased purchased 20 cents of land from the villagers of Seethapuram for his thrashing floor, which accused No.1 desire to purchase the same. On 14.06.1999 morning one chick of the deceased went to the backyard of accused No.1 and it was found dead. P.W.1 doubted that her co-sister-in-law killed the chick and a quarrel took place between accused No.1 and deceased with their family members and on the same day evening both the deceased and accused No.1 again quarrelled in the street and accused No.2 informed the quarrelling to accused No.3, who is residing at Hyderabad. On 16.06.1999 accused No.3 came to Seethapuram and on the same day night at about 10.30 P.M. while the deceased returning home on his cycle through Seethapuram colony road and when he reached near his house, accused Nos.1 and 3, way laid and accused No.1 armed with Kathuva, accused No.2 armed with Katti Kara and accused No.3 armed with kathuva attacked the deceased, accused No.1 dealt four blows on the head of the deceased, accused No.2 beat on the face of the deceased with Kattikarra and accused No.3 beat the deceased with kathuva on his right shoulder and caused bleeding injuries and the deceased raised cries and on hearing the same, his wife (P.W.1) and his son (P.W.2) rushed to the spot and rescued the deceased and requested the accused not to assault the deceased. Accused No.1 beat P.W.1 with kathuva on her back, accused NO.3 beat P.W.1 with kathuva on her hand and also beat P.W.2 on his head and caused bleeding injuries. P.Ws.4 and 5 witnessed the incident and shifted the deceased to the house of P.W.1, thereafter P.W.7 shifted the deceased and injured to the Area Hospital, Tekkali on his double bullock cart. P.W.10, who treated them gave information to the police and the police came to the hospital and recorded the statement of the deceased and registered the case in Crime NO.58 of 1999 under Sections 323, 324 and 326 read with 34 IPC. P.W.15 took up the investigation and examined P.Ws.1 and 2 and conducted the scene of offence Panchanama in the presence of P.W.6 and another. The deceased was shifted to K.G. Hospital, Visakhapatnam for better treatment. On receipt of the death intimation, P.W.15 altered the section of law to 323, 324 and 302 read with 34 IPC. Thereafter, P.W.16 took up the investigation and examined the witnesses once again and held inquest over the dead body of the deceased and after completion of the investigation filed the charge sheet against the accused for the above said offences. The learned Sessions Judge has framed the charges under Section 302 IPC against accused Nos.1 to 3, under Section 324 IPC against accused Nos.1 and 3. They pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 17 and got marked Exs.P.1 to P.25 and M.Os.1 to 8. On behalf of the accused, Exs.D.1 to D.3 were marked, but no oral evidence was adduced on his behalf. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused Nos.1 to 3 guilty for the offence under Sections 304- Part I read with 34 IPC and 324 IPC and sentenced to undergo rigorous imprisonment for 10 years each and to pay fine of Rs.1,000/- each in default to pay fine rigorous imprisonment for 2 months each for the offence under Section 304 Part-I read with 34 IPC. Accused Nos.1 to 3 further sentenced to undergo rigorous imprisonment for one year each for the offence under Section 324 IPC. Aggrieved by the same, the present appeal is filed by the accused therein. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 304-Part I read with 34 and 324 IPC against the accused beyond reasonable doubt? P O I N T: The appellants’ counsel has pleaded that the motive for the commission of offence was not established by the prosecution as none of the witnesses have spoken about the same in their statements before the police and P.Ws.1 to 3 have not spoken about the previous animosity between them before the police and moreover they are interested witnesses to the incident and the independent eyewitnesses P.Ws.4 and 5 have turned hostile to the prosecution. Therefore, the prosecution could not establish the charges framed against the accused. He has further pleaded that the cause of death of the deceased is due to respiratory and circulatory failure due to injury to both lungs resulted in collection of blood in the thoracic cavaties due to traumatic fractures of both sides ribs with fracture of right upper arm (Humerus) Bone. There is no evidence on record to show that the accused caused injuries on the chest of the deceased, which resulted in the fracture of the ribs of both sides. He further pleaded that the lower Court has erred in relying upon the statement recorded by the police as dying declaration and even though the prosecution has opportunity to get the dying declaration recorded by the Magistrate, they have not taken any steps for the same. The learned Additional Public Prosecutor on the other hand has pleaded that P.Ws.1 and 2 are the injured along with the deceased and they have specifically stated about the overt acts of the individual accused and also the injuries sustained by them in the hands of the accused and the deceased also specified the overt acts of the accused in the statement recorded by the police. There is previous enmity between the accused family and deceased family prior to the above said incident with regard to purchasing of thrashing floor of the deceased. Therefore, the prosecution could able to establish the motive for the commission of the offence and the accused committing the offence as such the lower Court has rightly convicted the accused for the above said offences. According to P.W.1, who is the wife of the deceased and injured person, that the accused No.1 is the elder brother of her husband, accused Nos.2 and 3 are sons of accused No.1. Two days prior to the incident, wife of accused No.1 killed their chick, as such her husband and herself questioned her and in that connection an altercation took place between her husband and accused. Her husband purchased thrashing floor, which was proposed to be purchased by the family of the accused. The accused have thrashing floor adjoining to their thrashing floor and a quarrel took place in that regard. Thereafter, they raised fencing between to their thrashing floor. Subsequent to raising of fencing, there was no disputes between their families. About 4 ½ years ago on one day at about 10.30 P.M. while she was at her house, heard the cries of her husband that he was being killed. Her son and daughter, rushed to the scene of offence and found the presence of the accused. Accused No.1 armed with a kattuva, accused No.2 armed Karra Katti, accused No.3 armed with a kathuva. Accused No.1 beat her on her right shoulder and left hand with kathuva, accused No.3 beat her on her right upper arm, neck and head with kathuva, with the blunt portion. Accused No.2 beat her son on his forehead and left upper arm with karra katti. M.Os.1 to 3 are the weapons used by the accused in the commission of offence. The incident occurred in front of the house of K.Appa Rao. There were street lights and she saw the incident in the illumination of the street lights. On hearing their cries, Boddepalli Srinivasa Rao, Pappala Jagannadham and Yenda Daleppa came to the scene of offence and chastised the accused and they left the scene of offence. Then her husband was taken to their house and then taken to Government hospital, Tekkali in a bullock cart of Yenda Dalappa. Herself and her son accompanied her husband to the hospital. The doctor at Tekkali treated her husband. Thereafter police came to the hospital and recorded her statement. Police seized the blood stained cloths of her husband besides her clothes and her son, which are M.Os.4 to 6. Thereafter, her husband was shifted to the hospital at Vizag, where he succumbed to the injuries. In the cross- examination, she has stated that there were no disputes between them on the date of killing of chick and on the date of occurrence of the incident. She stated before the police that by the time her son and herself reached the scene of offence, they saw her husband lying on the ground with bleeding injuries. She did not state before police that accused No.2 armed with kathuva and beat her son with it. Therefore, according to her, there are no disputes between their family and family of the accused as on the date of the occurrence of the incident. P.W.2, who is the son of the deceased and also the injured, has also supported the version of P.W.1 with regard to the occurrence of the incident. According to him also on hearing their cries, Bodepalli Srinivasarao and Pappai Jagannadham came to the scene and rescued them. Then the accused left the scene. He also stated about the ill-feelings between their family and family of the accused 5 years prior to the incident with regard to purchasing thrashing floor. P.W.3, who is the daughter of the deceased, also supported the version of P.Ws.1 and 2 with regard to the occurrence of the incident. But her presence was not stated by P.Ws.1 and 2 at the time of incident. P.W.4, who is an independent witness, has only stated that on hearing the cries at about 10.30 or 11.00 P.M. he rushed to the spot and found P.W.1 was weeping by sitting by the side of her husband and she requested him to shift her husband to their house. Meanwhile Boddepalli Srinivasa Rao came there and they took the deceased to his house. He did not notice any injuries on the person of deceased. Therefore, P.W.4, who is said to be an eyewitness has not supported about his presence at the time of incident and also sustaining injuries by the deceased. P.W.5 another independent witness has only stated that while he was in the house on 16.06.1999 at about 10.30 or 11.00 P.M, he heard the cries from the side of the house of Kurumoji Apparao and went to that place and saw the Sriramulu (deceased) lying on the ground with injuries. He also saw the accused going from that place and he did not observe if the accused were armed with any weapon then. He also observed the injuries on the persons P.Ws. 1 and 2. Then they shifted the Sriramulu from that place to his house and he does not now the reason for sustaining injuries by them. Therefore, according to P.W.5, he saw the deceased and P.W.1 sustaining injuries and saw the accused going away from that place. But investigating officer has stated that P.W.5 did not state before him about his seeing the accused going away from scene of offence and about P.W.1 telling him that the accused beat Sriramulu. Therefore, the said version of P.W.5 with regard to his seeing the accused going away from the scene and P.W.1 informing him about the causing injuries by the accused is an improvement made by him before the Court. Therefore, the evidence of P.Ws.4 and 5 are not helpful for deciding the involvement of the accused in the incident. P.W.6 is the mediator for the inquest. According to him on 16.06.1999 at about 10.30 P.M, while he was at his house he heard some cries from the scene of offence and went to the scene of offence. He saw Sriramulu lying on the ground with bleeding injuries and P.Ws.1 and 2 with injuries. He also saw P.W.3 at the scene of offence besides P.Ws.4 and 5. Sriramulu told that the accused beat and caused injuries. Thereafter, 4 or 5 others shifted from the scene of offence to his house. He was present when the inquest was held over the dead body of Sriramulu and they came to an opinion that the deceased died due to injuries suffered by him. But P.W.16 investigating officer, who recorded the statement of P.W.6, has stated that P.W.6 did not state before him that the deceased informed him that the accused beat him. Therefore, the evidence of P.W.6 cannot be relied upon with regard to the accused beating the deceased. P.W.7, who is the brother of the deceased, has only shifted the deceased to the Government Hospital, Tekkali on his double bullock cart. P.W.8 is the mediator for the scene of offence Panchanama and also for the inquest held on the dead body of the deceased. He is also a mediator for recovery of M.Os.1 and 2 at the instance of accused Nos.1 and 2. P.W.9 is a mediator for the arrest of accused No.3 and recovery of M.O.3 at his instance. With regard to the injuries sustained by P.Ws.1 and 2, the prosecution has examined the Doctor, who treated them, as P.W.10. According to him on 17.06.1999 at 1.00 A.M. one Yenda Sriramulu, his wife and his son came to the hospital with injures and admitted in the hospital and he intimated the same to the police as per Ex.P.10 at 1.30 A.M. Police of Tekkali came to the hospital and recorded the statement of Sriramulu. He endorsed on the statement of Sriramulu recorded by the police that the patient was conscious while giving statement to the police. After giving first aid to Sriramulu, he advised to take Sriramulu to K.G.Hospital, Vizag. He examined the P.W.1 and found the following injuries. 1) A large swelling over right upper back. 2) A swelling of nape of neck; 3) 1 cm, lacerated wound of left upper arm. 4) Swelling of right upper arm. 5) Lacerated wound 3” over right head. He opined that the above injuries are simple in nature and Ex.P.12 is the wound certificate of P.W.1. P.W.10 also examined the P.W.2 and found the following injuries: 1) a lacerated wound 2” over forehead. 2) A diffuse swelling of left upper arm. He opined that the injuries sustained by P.W.2 are simple in nature and Ex.P.13 is the wound certificate of P.W.2. Even though P.W.10 admitted the deceased with injuries in his hospital, he has not stated about the injuries sustained by the deceased at the time of his admission in the hospital, but he only endorsed on the statement recorded by the police about the consciousness of the patient. P.W.11, who has conducted autopsy over the dead body of the deceased as found the following ante mortem external injuries. 1. Sutured wound of 4 cms size transversely present over right fronto temporal region of the head approximated with four stitches. It is 8 cms above the middle of right eye-brow region and it is 5 cms above the right ear. On opening the sutures, it is scalp deep and measuring 4x2 cms. The margins are irregular and contused. 2. Sutured wound of 3cms size obliquely present over right parieto temporal region of the head and is approximated with two stitches. It is 14cms above the right eye brow and it is 4 Cms above the right ear. On opening the sutures, it is scalp deep and is measuring 3x2 cms size. The margins are irregular and contused. 3. A scalp deep laceration of 3x2 sms size obliquely present over left fronto partial region of the head. It is 12 cms above the left eye brow and 8cms above the left ear. The margins are irregular and contused. 4. A scalp deep cut laceration of 2x1 cm size obliquely present over left back of the head (occipital region). It is 6cm to the left of left ear and it is 9cms below the external injury No.3. The margins are irregular and contused. 5. Sutured wound of 3cms size approximated with 2 stitchs present over the right chin. On opening the sutures it is muscle deep and is 3x 2 cm size and the margins are irregular and contused. 6. An obliquely placed bluish contusion of 4x2 cms size present over right lower back chest region. It is 4cms to the right of back mid line of the chest deformity of lower back chest is present. 7. An obliquely placed bluish contusion of 6x2 cms size present over left lower back chest region. It is 2 cms to the left of back mid line of the chest deformity of lower back chest is present. 8. Bone deep bluish contusion of 5x3 cms size present over front of middle of right upper arm with deformity of upper arm present. Antemortem Internal Injuries: 1. Corresponding bluish contusion of 6x4 cms size right fronto temporal region 5x3 cms right parito temporal, 5x4 cms left fornto partial, 4x2 cms left occipital regions of all the layers of scalp present surrounding the external injury No.1,2,3 and 4. 2. On dissection of external injury No. 5 there is bluish contusion of 3x2cms size present over surrounding muscles. 3. On dissection of external injury No. 6, bluish contusion of intercostals muscles and blood vessels of the right lower back chest with fractures of 8 to 12 ribs on right lower back chest and the fractured ribs penetrated in to back sides of lower lung lobes and resulted 0.25x 0.25 x 0.25 sizes 4 lacerations to lung with presence of 400ml of blood in the right chest cavity: 4. on dissection of external injury No. 7, bluish contusion of intercostals muscles and blood vessels of the left lower back chest and the fractures of 7 to 12 ribs on left lower back chest and the fractured ribs penetrated into back sides of lower aspect of upper lung lobs and lower lung lobes and resulted 0.25 x 0.25 x 0.25 cms sizes of 6 lacerations to lung with presence of 600 ml of blood in the left chest cavity. 5. Fracture right upper arm bone (Humorous) at its junction of upper 2\3rd and lower 1\3rd with surrounding infiltration of blood is present below the external injury No.8. He opined that the deceased would appear to have died due to respiratory and circulatory failure due to injury to both lungs resulted in collection of blood in the thoracic cavaties (Haemothorax) due to traumatic fractures of both sides of ribs with fracture of right upper arm (humorous) bone. In the cross-examination he admitted that humorous fracture is alone not sufficient to cause death. The possibility of collection of blood in the chest cavity in this case might be within 4 to 5 minutes or at any time. The collection of blood in the chest cavity might be due to further movement of body. The possibility of penetrated fractured ribs into the substance of lungs can be possible due to movement of person after receiving injuries. Therefore, the injuries caused to the lungs resulted in collection of blood in the thoracic cavaties due to traumatic fractures of ribs of both sides of the chest. As per the observations, he found contusions on the chest and corresponding internal injuries are bluish contusion of intercostals muscles and blood vessels of the right lower back chest with fractures of 8 to 12 ribs on right lower back chest and the fractured ribs penetrated into back side of lower lung lobes and resulted in 0.25 X 0.25 X 0.25 sizes and 4 lacerations to lung with presence of 400 ml of blood in the right chest cavity. But P.Ws.1 and 2 have not spoken about the accused causing injuries on the chest of the deceased. P.Ws.1 and 2 did not speak anything about the specific overt acts of the accused in causing injuries to the deceased, but they only stated about the weapons used by the accused in attacking the deceased. P.W.15 has recorded the statement of the deceased while he was in the hospital at Tekkali and the same is marked as Ex.P.17. In Ex.P.17 he has stated that accused Nos.1 to 3 attacked on him. Accused No.1 hit on his right side of the head with kattuva, accused No.2 hit on his chin with Kattuva and accused No.3 hit on the right hand arm with kattuva. Even the said statement does not disclose about the accused causing injuries on the chest or on the back side of the chest of the deceased. Therefore, the prosecution could not establish that the death of the deceased was due to the injuries caused by the accused. With regard to the injuries caused to P.Ws.1 and 2, they have specifically stated about the overt acts of the accused in causing injuries to them. P.W.15 investigating officer in his cross-examination admitted that P.W.1 did not state before him that accused No.3 beat with iron portion of kattuva on her neck and right upper arm and accused No.2 beat P.W.2 with karri katti on his left upper arm and that accused No.1 beat her with kattuva on her right shoulder and left hand. P.W.2 did not specifically state that accused No.1 beat P.W.1 on her back and neck and he did not state that accused No.2 beat P.W.1 on her neck, head and right upper arm and that accused No.2 beat him with karra katti on his forehead and left upper arm. P.W.16, who is the 2nd investigating officer, also recorded the statement of witnesses again has also stated in the cross-examination that P.Ws.1 and 2 have not stated about the specific overt acts of the accused in causing injuries to them. Therefore, the prosecution could not establish the injuries sustained by P.Ws.1 and 2 were caused by the accused. Moreover, as already observed above the motive for committing the offence by the accused was not established by the prosecution. Thus, the prosecution could not establish the charges under Sections 304 Part-I read with 34 and 324 IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the I II Additional District and Sessions Judge (Fast Track Court), Srikakulam in S.C.No.52 of 2001 on 31.05.2004 is hereby set aside and the accused are accordingly acquitted for the offences under Sections 304 Part-I read with 34 and 324 IPC _______________________ P.DURGA PRASAD, J 25th November, 2011 Ksp