HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2531 OF 2004 Date:13-09-2011 Between: Chavva Chandra Mohan Reddy @ Mohan and two others. --- Appellants/ A-1, A-2 & A- 4. And The State of A.P., Rep. By its Public Prosecutor, High Court of A.P. Hyderabad. --- Respondent. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2531 OF 2004 JUDGMENT: The II Additional Sessions Judge, Kadapa at Proddatur convicted the Appellants 1, 2 and 3/A-1, A-2 and A-4 and passed sentences against them for various offences. After filing of the Appeal, it is reported by the Appellants’ counsel that third Appellant/A-4 died. Therefore, the Appeal in so far as the third appellant/A-4 is concerned has abated. This Appeal remains to be considered in respect of appellants 1 and 2/A-1 and A-2. 2. A-1 was convicted under Section 148 I.P.C. and was sentenced to Rigorous Imprisonment for two years and fine of Rs.1,000/-. A-1 was also convicted under Section 326 I.P.C. and was sentenced to Rigorous Imprisonment for three years and fine of Rs.3,000/-. A-2 was convicted under Section 148 I.P.C. and was sentenced to Rigorous Imprisonment for two years and fine of Rs.1,000/-. A-2 was further convicted under Section 304 (Part-II) I.P.C. and was sentenced to Rigorous Imprisonment for eight years and fine of Rs.4,000/- 3. The offence took place on 26-01-2001, which was a holiday for Republic Day. It is alleged that when PW.1 was returning after attending a marriage and reached near Vysya Bank on Gandhi road, Proddatur, A-1 to A-5 saw PW.1 and that A-2 abused PW.1 in the name of his barber caste questioning the previous incident which took place between them during Jyothula festival, and also challenged PW.1. It is further alleged that PW.1 went home without replying and informed the same to his brother PW.2 and that both of them started going towards the scene of offence near Vysya Bank on Gandhi Road and met the deceased Ibrahim on the way and that Ibrahim also joined them to question the accused about the challenge made to PW.1 and that when the prosecution party questioned the accused, the accused party retaliated violently and that A-1, A-2 and A-4 took out daggers (Baku) and A-3 and A-5 with sticks bounced on PWs. 1 and 2 and the deceased and caused injuries to them. When PW.3 is stated to have interfered, it is alleged that PW.3 was also beaten by A-3 and A-5 with sticks. In the said incident PWs. 1 and 2 and the deceased received stab injuries and they were taken to Government Hospital, Proddatur for treatment. From that hospital, the deceased Ibrahim was shifted to Government General Hospital, Kurnool for better treatment. While undergoing treatment in Kurnool Hospital, the deceased died on 29- 01-2001. PWs. 1 and 2 were discharged from Proddatur hospital on 08-02-2001. After trial, the lower Court acquitted A-3 and A-5 totally and convicted A-1, A-2 and A-4 as indicated above. 4. In this Appeal it is broadly contended by the senior counsel for the appellants 1 and 2 that there is no consistency in the evidence of prosecution witnesses as to who caused the lone injury to the deceased out of A-2 and A-4 and that therefore the lower Court should have given the said benefit of doubt to A-2. It is further contended that in any event death of the deceased was caused not with the injury sustained by him in the course of this transaction, but due to complications from the said injury and that therefore A-2 should not have been found guilty under 304 (Part-II) I.P.C. It is further contended that at best the offence against A-1 and A-2 can only be under Section 324 I.P.C. 5. PW.1 is the person who gave Ex.P-1 report to the police, on the basis of which Ex.P-8 F.I.R. was issued and the investigation was taken up by PW.15. In Ex.P-1, it is the version of PW.1 that A-4 attacked him (PW.1) and stabbed him with dagger twice on his left shoulder and that A-1 stabbed PW.2 with dagger on left side of his shoulder and that when the deceased Ibrahim came to their rescue, A-2 stabbed him on his stomach. During trial before the lower Court, PW.1 deposed in examination-in- chief that A-1, A-2 and A-4 were armed with daggers (pidi bakulu) and that A-4 gave him a blow on his left shoulder and that A-1 stabbed PW.2 on his left back and that A-4 (Siva Masthan Reddy) stabbed the deceased Ibrahim on left side of abdomen. The overt act attributed against the deceased during trial differs from what was stated by him in Ex.P-1. In Ex.P-1, PW.1 attributes the overt act against the deceased to A-2 whereas in the evidence, PW.1 attributes the overt act against the deceased to A-4. If this evidence of PW.1 is left at that stage, then there would be a doubt as to who inflicted the blow on stomach of the deceased with dagger. The defence counsel in cross- examination elicited that it was not A-4 who stabbed the deceased, but the deceased was stabbed by A-2 (Raja Sekhar Reddy). Cross-examination of PW.1 is consistent with PW.1’s version in Ex.P-1. It is PW.2’s evidence that A-2 stabbed the deceased Ibrahim above the stomach and below ribs on left side. Thus, it is consistent from the beginning that it was A-2 who stabbed the deceased on his stomach and caused the injury with a dagger. The evidence of PW.1 in his examination in chief was only a slip and it was properly corrected by PW.1 in cross-examination by the defense counsel and clarified that it was A-2 who inflicted the injury on the deceased but not A-4. In those circumstances, the lower Court is justified in holding that it was A-2 who inflicted the injury on the deceased Ibrahim with dagger. 6. PW.2 further says that A-1 stabbed him on left back and that A-4 stabbed PW.1 on his left side shoulder twice. Since A-4 is no more, the overt acts attributed to A-4 become irrelevant in this Appeal. The lower Court did not place any relevance in the evidence of PW.3 who is said to have sustained a simple injury with sticks. The lower Court also disbelieved the presence of A-3 and A-5 during the course of this transaction with sticks because there were no injuries with any blunt object on PWs. 1 and 2 as well as the deceased. 7. When the lower Court acquitted A-3 and A-5 disbelieving their presence and participation in this transaction, then there remains only three persons namely A-1, A-2 and A-4 who attacked PWs. 1 and 2 and the deceased with daggers. When only three persons participated in the offence, there could not have been formation of any unlawful assembly as contemplated under Section 141 I.P.C. it follows that the lower Court erred in finding A-1 and A-2 guilty under Section 148 I.P.C. 8. PW.13 is the doctor who treated the injured, PWs. 1 and 2 and the deceased initially immediately after the offence and issued Exs.P-15 to P-17 wound certificates respectively. PW.13 found two injuries on PW.1 and one injury on PW.2 which might be with daggers. Injuries sustained by PW.1 become irrelevant in this appeal because they are said to have been inflicted by A-4 who is no more. In so far as the injury sustained by PW.2 as per Ex.P-17 is as follows : “A stab injury of 3 x 2 c.m. elliptical in shape with active bleeding in left mid axillary line, approximately in 5th 6th Intra costal space upto ribs.” 9. PW.13 in Ex.P-17 as well as during evidence in the lower court opined that the above injury sustained by PW.2 is grievous in nature. In cross-examination, PW.13 admitted that he had not furnished any reason as to why injury on PW.2 is grievous in nature. There is no boney injury on PW.2 much less any injury to any vital internal organs. PW.2 was hospitalized for a total period of 12 days only. In those circumstances, there is no legal basis for PW.13’s conclusion that injury sustained by PW.2 is grievous injury. I have no hesitation to find that injury sustained by PW.2 is only a simple injury and not a grievous injury. 10. In so far as the deceased is concerned, he sustained the following injury as per Ex.P-15 wound certificate issued by PW.13 apart from pain and tenderness on abdomen : “A 3 x 2 c.m. stab injury in epigastria region (towards left Hypochoncrdum), of depth could not be assessed, with active bleeding Haematemesias is present.” 11. PW.13 in cross-examination deposed that Ibrahim/deceased was conscious condition when he was admitted in Government Hospital, Proddatur and that he was able to talk. He further says that he did not expect that Ibrahim would die and therefore he did not send any requisition for recording his dying declaration by the Judicial Magistrate or Executive Magistrate. PW.14 is the Professor of Forensic Medicine, Kurnool Medical College, Kurnool who conducted postmortem examination on dead body of the deceased and issued Ex.P-19 post-mortem certificate. It is in the evidence of PW.14 that the deceased died due to the complication resulting from the stab injury. PW.14 noticed that abdominal cavity contained 300 C.C. of blood stained fluid. PW.14 further noticed that stomach contained 20 C.C. of coffee coloured blood. In examination in chief PW.14 deposed that injury No.1 is sufficient to cause death of the deceased in normal course. But, in cross-examination PW.14 was categorical to the effect that death was not result of injury No.1 and that it was due to complication of the said injury such as peritonitis or infection set in the injury and that if there was no infection to the injury, the injured would have survived. He further says that the said injury was in healing process. At the same time, in Ex.P19-Post Mortem Report, injury No.1 which is ante-mortem in nature, reads as follows: “1. A sutured stab wound present on front of left side lower Chest at the Junction of abdomen and Chest obliquely placed from right to left 3 ½” below the left nipple with 2 stitches. After removing the sutures, the stab wound is elliptical in shape measuring 3 ½ x 1.25 cms. with pointed ends margins are clean cut. Internally it has pierced the abdominal wall cutting the part of lower rib and injured the left lobe of liver through and through. Liver was found sutured. Suturing of middle of anterior wall of stomach present, with 3 stitches. Intestines deeply ecchymosed. Abdominal Cavity contain 300 c.c. of blood stained fluid process of healing presently.” Injury Nos.2 and 3 of the Post Mortem Report are surgical wounds. Inspite of making facility for drainage from the abdomen by way of opening a surgical vent, 300 c.c. of blood stained fluid stagnated in the abdominal portion. Since as per evidence of PW14, death was not the result of injury No.1, certainly injury No.1 is a grievous injury sustained by the deceased. In that view of the matter, I am in agreement with the contention of the appellants’ counsel that even if evidence of PWs 1 and 2 is taken into consideration, A2 may not be liable under Section 304- (Part-II) I.P.C., but is liable under Section 326 I.P.C. Ultimately, on proper analysis of oral and medical evidence on record, I find that A1 is liable under Section 324 I.P.C. and not under Section 326 I.P.C. and that A2 is liable under Section 326 I.P.C. and not under Section 304- (Part-II) I.P.C. 13. In the result, the Criminal Appeal is partly allowed setting aside the convictions and sentences passed by the lower Court against the appellants 1 and 2/A1 and A2, under Section 148 I.P.C.; and the Criminal Appeal is partly dismissed, but altering conviction of A1 from Section 326 I.P.C. to Section 324 I.P.C. and altering sentence of imprisonment to A1 from three years to one year; altering conviction of the second appellant/A2 from Section 304- (Part-II) I.P.C. to Section 326 I.P.C. and altering sentence of imprisonment to A2 from eight years to five years. Fine amounts are not disturbed. _______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:13.09.2011 DSH/ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2531 of 2004 Dt:13.09.2011 ysk