THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.900 of 2004 Date: 18th July, 2011 Between: Boya Dali Peddanna and 2 others … Appellants / A1 to A3 And: State represented by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.900 of 2004 JUDGMENT: This is an appeal filed against the conviction and sentence passed by the Sessions Judge, Anantapur in S.C.No.246 of 2003, on 05.04.2004. The appellants herein and five others were prosecuted for the offence under Sections 147, 148, 302, 324 read with 149 IPC. The brief case of the prosecution is that the accused A1 to A8 are residents of Aravakur village, Kuderu police station limits. PW.1 and his father-the deceased Narappa are also residents of Aravakur village and A1 and PW.1 and the deceased were residing in opposite houses. There was a dispute between them with regard to flow of rain water and A1 and his family members used to put up earthen bund to divert the rain water causing inconvenience to the deceased and his family. On 16.10.2001 at about 2.00 P.M., the deceased and his family members had altercation with A1 and his family members over the said issue. On 17.10.2001 in the morning, the deceased and his family members have proposed to settle the matter by holding a panchayat. At about 8.00 A.M. on 17.10.2001, the deceased and PW.1 went to the house of A1 to call him to attend the panchayat. Meanwhile, A1 to A8 formed unlawful assembly armed with sticks and emerged out of the house of A1 abusing the deceased for calling for frequent panchayats. In furtherance of their common object of assaulting, A2 hit PW.1 with stick on the right side of the head and A1 instigated other accused to deal with the deceased who is the root cause for all the trouble saying that if he is killed everything will be alright and so saying, A1 held the deceased by his throat and A2 beat the deceased with stick over the left side of the forehead. A3 to A8 surrendered the deceased and assaulted him with sticks and kicked him with legs indiscriminately. The deceased fell down. On seeing this, PWs.2,3,4 and others came there and intervened and A1 to A8 went away abusing the deceased throwing challenges. PW.1 and others went near the deceased and found him dead. On the complaint given by PW.1, PW.9 has registered the case in Crime No.79 of 2001 under Section 147, 148, 302, 324 read with 149 IPC and took up investigation. Thereafter, PW.10-the Circle Inspector of Police has took up the further investigation. PW.10 arrested A1, A3, A4 to A7 on their surrender before the Court on 22.10.2001. A2 was arrested on 17.11.2001 and A8 was arrested on 27.12.2001. On 02.01.2001, A1, A3 and A7 were taken into police custody and interrogated and recovered MO.1 at their instance in the presence of mediators PW.7 and K. Siva Prasad and A2 was interrogated on 17.11.2001 and recovered the stick at his instance in the presence of same mediators. All the accused were prosecuted for the offence under Section 147, 148, 302, 324 read with 149 IPC. The learned Sessions Judge, Anantapur, has framed charges under Sections 148, 302 read with 149 IPC against A1 to A8 and under Section 324 against A2. All the accused pleaded not guilty for the said charges. The prosecution, in order to establish the said charges, examined 11 witneses i.e. PWs.1 to 11 and marked Ex.P1 to P15 and MOs.1 and 2. On behalf of the accused, no witneses were examined, but Exs.D1 and D2 were marked. The learned Sessions Judge, by taking into consideration the said oral and documentary evidence, found A1 and A3 guilty for the offence under Section 304 Part-II of IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 3 years and found A2 guilty for the offence under Section 324 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 3 months and A2, A4 to A8 were found not guilty for the offences under Section 148, 302 read with 149 IPC and they are acquitted. Aggrieved by the said conviction and sentence, A1 to A3 have preferred the present appeal. Now the point that arise for consideration is whether the prosecution could able to establish the offence under Section 304 Part-II of IPC against A1 & A3, and 324 IPC against A2 beyond reasonable doubt. The learned counsel appearing for the appellants has pleaded that even though PWs.2 to 5 are cited as eye witnesses, PWs.2 and 5 have turned hostile to the prosecution and PWs.3 and 4 have stated in their evidence that they came to the spot after occurrence of the incident and therefore, they cannot be said to be eye witnesses to the said incident and the lower Court has wrongly relied upon their evidence as corroborating evidence of PW.1 and convicted the accused. The appellants counsel has further pleaded that even the evidence of PW.1 who is the complainant and injured, is having contradictions and improvements and in view of the previous disputes between the accused and the A1’s family, it is not safe to rely upon the evidence of PW.1 to convict the accused. The learned counsel for the appellant have pleaded that even though the cause of death of the deceased was due to head injury, since the evidence of eye witness cannot be relied upon, there is no other evidence to conclude that the accused are responsible for causing the head injury to the deceased and also simple injuries to PW.1. The learned Additional Public Prosecutor has pleaded that the evidence of PW.1, 3 and 4 is consistent and corroborating with each other. The evidence of PWs.1, 3 and 4 with regard to the accused causing injuries to the deceased and PW.1 is corroborated by medical evidence of PWs.8 and 11. Thus, the prosecution could able to establish the charges and the lower Court has rightly convicted the accused. According to the prosecution, there were disputes between the accused family and deceased’s family with regard to flow of rain water and due to heavy rains in the month of October, 2001, the trouble cropped up and the accused No.1 and his family members put up an earthen bund diverting the rain water causing inconvenience to the deceased and his family and in that regard, an altercation took place between both the families on 16.10.2001 at about 2.00 P.M., and the deceased family wanted to settle the matter by holding a panchayat on the next day. Accordingly, on 17.10.2001 at 8.00 A.M, the deceased and PW.1 went to the house of A1 and called A1. By that time, A1 to A8 formed unlawful assembly in the house of A1 and came out of the house and abused PW.1 and the deceased by frequently calling for panchayat and A2 hit PW.1 with stick on his right side of the head and A1 instigated others to deal with the deceased as he is the root cause of all the trouble and A1 caught hold of the neck of the deceased with his both hands and A3 beat with sticks on the left side of forehead and caused injury and A4 to A8 surrendered the deceased and assaulted him with hands and kicked him with legs indiscriminately, and in the meanwhile, PWs.2 to 5 came to the spot and found the deceased dead. PW.1 who is the complainant and son of the deceased has narrated the story of the prosecution in the chief examination and according to him on the date of incident at 7.00 A.M., himself and his father went to the village elders and informed the Sarpanch Narayanamma, Kadiranna S/o Sangappa, and another Kadiranna S/o Kadirappa and others and returned to their house. By the time they reached Lakshminarasimha Swamy temple in the village, they found Bandi Sreeramulu, Guvvala Narayana, Kavali Narayana, Murthappa, Batti Obulesu, Bandi Venkatesu, Batti Ramakrishna and they informed that the accused has put up bund across the road diverting the water into their house and requested them to come to the place of dispute and mediate the issue. Thereafter, they came back to their house and at about 8.00 A.M., the deceased asked to call A1 for discussions as the mediators have not turned up. When PW.1 has gone to the house of A1 and called them, the incident as alleged by the prosecution has taken place. In support of the prosecution story, PWs.2 to 5 were examined. PW.2-Bandi Sreeramulu who is stated to be one of the mediators according to PW.1, has turned hostile to the prosecution and not supported the case of the prosecution with regard to the incident. The other witness PW.3-Narayana Swamy has stated that there was a problem with regard to flow of rain water between the A1 and the deceased and a panchayat was held earlier in that regard and pacified the matter. About 2 years 3 months back, the deceased died. Two days prior to the death of the deceased, the road was laid. On the next day of laying the road, there was heavy rain and the family of the deceased and A1 quarreled at 2.00 P.M. and also at 6.00 P.M., as A1 put bund across the road. On the day of offence at 7.00 A.M., the deceased and his his son PW.1 went to bring elders in the village and informed them. At that time, himself, Obulamurthy, Kadiranna, Obulesu, Ramakrishna, T. Mallobulu were sitting near Lakshminarasimha Swamy temple on the pial. They have informed them about the incident and on enquiry and also informed that they went to call elders and asked them who were sitting there to go to the place of incident and mediate. According to them, the pial is located adjacent to the road adjoining the temple. He further stated that the deceased and PW.1 went to their house from their place and after half an hour PW.1 went and called A1 for panchayat and at that time A1 and other accused were present in the house retaliating and saying who are capable of mediating them in the village and came out of the house and A2 beat PW.1 with a stick on the head. When the deceased intervened saying why PW.1 was beaten, then A1 instigated other accused to kill the deceased and held the throat of his neck by both the hands and A3 beat him on head. The deceased fell down on the ground and all the accused trampled the deceased. Himself and others intervened and separated them saying they have killed the old man. Then all the accused left the place. But in the cross examination he has stated that he acted as elder in the village and did mediations. The distance between the pial where himself and others were sitting and the place of offence is 50 feet. Along with him Kadiranna S/o Sangappa and another Kadiranna S/o Kadirappa were also present on the pial. Himself and others and the above two persons went and intervened and separated the accused and deceased and Pw.1 at the scene of offence at the time of offence. He also stated that he heard from pial where he was sitting along with others, instructions given by the deceased to PW.1 to call A1 from his house, and he further stated that by the time he went there, PW.1 and the deceased were beaten. The attack on the deceased and PW.1 was visible from the pial and on seeing they rushed to the place and meanwhile, the deceased fell down on the ground before they reached that place. Therefore, according to him, he heard the deceased instructing PW.1 to call A1 from his house while he was sitting on the pial near the temple and he has also seen the accused attacking the deceased with sticks and thereby rushed to the spot and meanwhile the deceased fell down on the ground. According to PW.1, the pial is in front of the temple on the eastern entrance i.e. main entrance. The investigating officer-PW.10 has stated that he has drawn a sketch of the scene of offence which is marked as Ex.P10. Ex.P10 shows the location of the temple on the western side of the scene of offence and the temple entrance is towards east. And as admitted by him, he did not show the pial near the temple, and according to PW.1, by sitting on the pial near the temple they have heard the voice of the deceased and also witnessed the occurrence. But according to PW.1, the said pial is on the eastern side of the temple at the main entrance. PW.3 also admitted that the entrance of the temple is towards east. PW.3 and the investigating officer also admitted that the entrance of the temple is towards east, but according to them, the pial was on the road side which is on the southern side. As per the sketch Ex.P10, if the pial is on the eastern side of the temple, nothing is visible from that pial about the occurrence that has taken place at the scene of offence. As admitted by PW.2, the distance between the temple and the place of offence is 50 feet. Therefore, it is highly impossible for the person sitting on the pial near temple to hear the deceased instructing PW.1 to call A1 for mediation. Admittedly, the mediators have not turned up by the time PW.1 has called the accused. When the mediators have not turned up, where is the necessity for the deceased to instruct PW.1 to call A1 for discussions, when they are in logger terms with regard to flow of water prior to the said incident was not explained by the prosecution. The other eye witness cited by the prosecution is Malla Obulu who was examined as PW.4. He was also sitting along with PW.3 on the pial near the temple at the time of the incident. He also narrated about the specific overt acts of the accused A1, A2 and A3 in attacking the deceased in chief examination and he further stated that when they approached that place, all the accused left that place shouting and the deceased died on the spot. Therefore, from the admissions made from the evidence, it is clear that by the time they have gone to that place, the accused left that place. Therefore, the question of his witnessing the incident does not arise. But in the cross-examination he has stated that they have gone and separated the deceased from the accused, and he has further stated that they are about 15 to 20 persons present at the time of offence at that place. But PW.4 does not speak about PW.3 accompanying him to the scene of offence along with him or also his presence at the pial near the temple on that day. The other eye witness PW.5- Narayanamma who is the sarpanch of the said village has turned hostile to the prosecution. Even though she has stated that there was a dispute between A1 and the deceased with regard to the flow of rain water and she came to know about the death of the deceased. According to PWs.1, 2, 3 and 4, the deceased died on the spot. PW.6-the VAO of Kammuru village acted as mediator for the inquest panchanama and according to him, the deceased died due to head injury. Even though PW.6 is only a mediator for the inquest, he has spoken about the quarrel that took place between the accused and the deceased. Doctor-PW.8 who conducted the autopsy has found five external injuries and three internal injuries and he found an abrasion of 3 x 1 cm on left side of fore head at hair line 2 cm outer to mid line, red in colour, an abrasion of 1 x 1 cm on left side of fore head, 4 cm above the outer 1/3rd of left eye brow, red in colour, an abrasion of 4 x 1 cm on lower 1/3rd of region of left arm at outer aspect, red in colour, an abrasion of 1 x 1 cm on the outer aspect of left elbow, red in colour, a contusion of 2 x 1 cm on left side of front of neck, red in colour, a contusion of 3 x 2 cm in the deeper layers of scalp on left side of frontal area corresponding to injury no.1, diffuse subdural and subarachnoid haemorrhages over both cerebral hemispheres of brain, contusion of 3 x 2 cm on left side of frontal lobe. According to him, the cause of death was due to head injury and he further stated that injuries 2 to 5 are not possible by trampling and not possible by hitting with sticks, they are only possible by pushing each other and falling on the ground. Therefore, according to the evidence of the Doctor, the deceased died due to head injury and the injury Nos.2 to 5 i.e the abrasion on the left side of fore head, abrasion on the lower 1/3rd of the left arm and abrasion on the left elbow and the abrasion on the left side of front of neck are not possible by trampling and they are only possible by pushing each other and falling on the ground. According to the prosecution and the evidence of PWs.1, 3 and 4, after A1 catching hold of the neck, A3 beat him with stick on the left side of the neck and when he fell down, all the other accused has trampled him. PW.1 has stated in the cross examination and his father sustained injuries on his chest, throat, and other parts of the body on account of trampling by the accused. PW.3 also has stated in the cross-examination that the deceased was trampled on throat, chest, stomach and testicles. But no injuries were found by the Doctor-PW.8 on those parts. Therefore, the prosecution could able to establish that the deceased died due to head injury. According to the prosecution, the accused first attacked PW.1 and beat him on the right side of the head and PW.1 has stated that when he called A1 from his house, all the accused came out of the house and A2 beat him with stick on his right side and PW.3 also stated that A2 beat PW.1 on his head with stick. PWs.3 and 4 also stated that A2 beat PW.4 on head with stick. The Doctor who was examined as PW.11 and according to him, he found swelling and tenderness over the right temporal region and according to him the injury is simple in nature. And in the cross-examination he has stated that if a person is fisted in the temporal region, such injury is possible. Therefore the prosecution could also able to establish that the PW.1 sustained simple injury on his fore head. It has to be considered whether the head injury to the deceased and simple injury to PW.1 were caused by the accused. As already discussed above, PW.1 has categorically stated about the specific overt acts of A1 to A3 in causing the injury to him and head injury to the deceased. PWs.3 and 4 who were cited as eye witnesses to the incident has come to the spot after occurrence of the incident and it is not possible to witness the incident from a distance of 50 feet, moreover, when they are sitting on the pial on the entrance of the temple. Therefore apart from the evidence of PW.1, there is no other supporting evidence to establish the occurrence of the incident and the specific overt acts of the accused. Even though the family members of the deceased were present at the time of the alleged incident, none of them were examined by the prosecution. Admittedly, there are disputes between the deceased family and the accused family with regard to the flow of water even prior to the incident and there were mediations held earlier in that regard. In the background of the disputes in between them prior to the incident, it is not safe to rely upon the sole interested evidence of PW.1 to come to the conclusion that A1 to A3 has caused the injuries to PW.1 and the deceased, as alleged by the prosecution. The learned Sessions Judge mainly relied upon the evidence of PW.1, 3 and 4 and held that the evidence of PW.1 was corroborated by PWs.3 and 4 with regard to the incident. In view of the above discussion, the said finding of the learned Judge is perverse and is liable to be set aside. Thus, the prosecution has failed to establish the offence under Section 304 Part-II of IPC against A1 and A3 and under Section 324 of IPC against A2 beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed by the learned Sessions Judge, Anantapur in S.C.No.246 of 2003 dated 05.04.2004 is hereby set aside and A1 and A3 are acquitted for the charge under Section 304 Part-II of IPC and A2 is acquitted for charge under Section 324 of IPC. ______________________________ JUSTICE P. DURGA PRASAD 18th July, 2011 KSM