HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2437 OF 2004 Dated 17-03-2011 Between: Shk. Saidulu and another ……..Appellant And: State of A.P., rep. by PP., High Court of A.P., Hyderabad. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2437 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the III Additional Sessions Judge (Fast Track Court), Khammam in S.C.No.110 of 2002 dated 15.10.2004. The appellants herein are A.1 and A.2 in the above said Sessions Case and they were prosecuted along with A.3 Shk. Yakub Bee for an offence under Section 302 and read with 34 IPC. The case of the prosecution is that on 14.11.2001 at 20.00 hours, the P.W.1 complainant who is the wife of the deceased is a leader of Dwakra Group and used to get sanction of loans to the Members of Dwakra Group. The wife of A.1 was also one of the members of their Dwakra Group. P.W.1 got sanctioned a loan of Rs.5,000/- to the wife of A.1 from the bank under Dwakra scheme to construct her house. The loan amount should be repaid within 5 months. Though seven months have elapsed, the wife of A.1 did not pay the amount. Thereupon, P.W.1 and her husband who is the deceased used to ask A.1 frequently for the repayment of the loan amount for which, A-1 to A-3 thought that the complainant and her husband are causing disregard to A.1 before the villagers and they decided to do away with the life of the deceased. On 14.11.2001 at about 7.00 p.m., A.3 and wife of A.1 went to the bore well which is situated near the house of the deceased, to draw the water from the bore-well. On seeing them P.W.1 and the deceased demanded them to repay the said loan amount. A.3 and wife of A.1 abused the deceased and stated that he is demanding money whenever they met them. Then A.1 beat the deceased Yakub with M.O.1 stick on his head and A.2 beat the deceased with pestle on his head and back while A.3 caught hold of Yakub firmly. They also beat on the other parts of the body of Yakub and caused severe head injuries to the deceased. When the neighbours came to the spot, they fled away from the scene of the offence. The injured Yakub was referred to Government Hospital, Khammam for treatment and on 15.11.2001 while he was undergoing treatment, he died. Hence, A.1 to A.3 were prosecuted for the offence under Section 304 read with 34 IPC. The learned Sessions Judge has framed the charge under Section 302 read with 34 IPC against A.1 to A.3 and all of them have pleaded not guilty for the said charge. The prosecution in order to establish the said charge examined P.Ws.1 to 18 and got marked Exs.P.1 to P.18 and M.Os.1 and 2. No defence evidence was adduced on behalf of the accused, but Exs.D.1 to D.4 were marked on their behalf. The learned Sessions Judge after taking into consideration of both oral and documentary evidence, found A.1 and A.2 guilty for the offence under Section 304 Part-II and convicted and sentenced them to undergo for rigorous imprisonment for a period of 5 years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for 5 months each and A.3 was found not guilty for the offence under Section 302 read with 34 IPC and acquitted. Aggrieved by the said conviction and sentence, A.1 and A.2 therein have preferred the present appeal. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 304 Part-II against the appellants herein beyond reasonable doubt? The learned counsel for the appellants has pleaded that there is previous enmity between the accused, P.W.1 and the deceased and due to that reason the accused were falsely implicated in this case. The learned counsel further pleaded that the complaint Ex.P.1 does not disclose the specific overt acts of the accused which were stated by the P.W.1 who is the wife of the deceased and the evidence of P.Ws.1 and 2 cannot be relied upon as they are interested witnesses as they are wife and son of the deceased and the independent witness P.W.3 has not supported the version of the P.Ws.1 and 2 and P.W.5 another eye witness has not spoken any thing about the common intention of the accused in commission of the offence and he has specifically stated that he has not witnessed the incidence and he has given a different version contrary to the evidence of P.Ws.1 and 2. The other eye witnesses P.Ws.4 and 6 are turned hostile to the prosecution and therefore there is no reliable evidence to establish the charge against the accused. The learned counsel for the appellants further pleaded that the mediators for the observation for the scene of offence and Inquest have also turned hostile to the prosecution and the witnesses said to have been present at the time of arrest of the accused and recovery of M.Os.1 and 2 also turned hostile to the prosecution. Therefore, the prosecution has failed to establish that the M.Os.1 and 2 are recovered at the instance of the accused and also conducting the scene of offence observation Panchanama and inquest held on the dead body of the deceased. The learned counsel further pleaded that the A.2 also sustained injuries and the same was established in the evidence of the prosecution witnesses and the Doctor P.W.17 and the prosecution has failed to explain the injuries sustained by A.2 and the same is fatal to the case of the prosecution. On behalf of the learned Public Prosecutor, it is argued that in every case non explanation of the injuries sustained by the accused is not fatal to the case of the prosecution. In the present case, in view of the specific evidence of the prosecution witnesses that the A.1 and A.2 are the aggressive parties in the incident even though the A.2 have said to have been sustained a minor injury, it cannot be said that he is the victim in the hands of the P.Ws.1 and 2 and the deceased. He also pleaded that the specific overt acts of the accused are established from the evidence of P.Ws.1 to 3 and the injuries sustained by the deceased were established from the evidence of P.Ws.13 and 17 who are the Doctors who conducted autopsy over the body of the deceased and the Doctor who has examined the deceased at the first instance. According to the prosecution, the incident has occurred on 14.11.2002 at about 7.00 p.m when A.3 who is the mother of A.1 and his wife went to the bore well which is situated near the house of the deceased to draw the water from bore well and on seeing them P.W.1 and the deceased demanded them to repay the said loan amount. A.3 and the wife of A.1 abused the deceased stating that he is demanding money whenever they found and that A.1 beat the deceased Yakub with M.O.1 stick on his head and A.2 beat the deceased with pestle on his head and back while A.3 caught hold of Yakub firmly. They also beat on the other parts of the body of Yakub and caused severe head injuries to the deceased. When the neighbours came to the spot, they fled away from the scene of the offence. The motive for the offence, according to the prosecution is that the wife of the deceased P.W.1 is the leader of the Dwakra Group and the main aim of the said Dwakra Group was to save money @ Rs.50/- per month and deposit the same in the bank in the name of their Dwakra Group. If they want to withdraw the money from the bank, she has to obtain the signatures of members and withdraw the amount from the bank by her. The wife of A.1 was one of the members of their Dwkra Group and she obtained the loan of Rs.5,000/- for construction of the house and the said loan amount has to be repaid within five months but she has not paid the same in spite of lapse of seven months and thereupon the deceased used to demand A.1 for payment of the amount and P.W.1 and the deceased also used to ask A.1 frequently whenever they met them and due to which A.1 and his brother A.2 and their mother A.3 decided to do away the life of the deceased. With regard to the motive for the commission of the offence, P.W.1 who is the wife of the deceased has stated that she is the leader of the Dwakra Group in Polisetti Gudem village and the wife of the A.1 is also a member of the said Dwakra Group and she has taken a loan of Rs.5,000/- from the Dwakra Group for construction of the house and she has to repay the same within five months. Though seven months have elapsed, the wife of the A.1 did not pay the amount and herself and her husband demanded the accused for repayment of the said loan amount and due to which the accused attacked the deceased. P.W.2 who is the son of the deceased also supported the version of the P.W.1 with regard to the motive for commission of the offence. According to P.W.1, she has lodged a complaint Ex.P.1 and as per Ex.P.1, she being the leader of Dwakra Group got released an amount of Rs.5,000/- to Saidulu through the bank and it has happened about 7 months back. When she asked for repayment of the amount, bearing this in mind, her husband was abused in filthy language and beaten by the accused. But whereas, according to the prosecution and the evidence of P.Ws.1 and 2, the loan was sanctioned to the wife of A.1 Shaik Saida Bee but not Saidulu who is A.1 herein. The Investigating Officer P.W.18 in the cross-examination admitted that during the course of investigation, the witnesses have stated before him that the wife of A-1 is a Dwakra Group member and she received the loan amount from Dwakra Group. He has not collected any evidence or any document to show that either A.1 or his wife has taken any loan from the Dwakra Group of Polisetti Gudem village. He has also not collected any evidence to show that P.W.1 is the leader of the said group and he has also not collected any evidence to show that the PW.1 has got sanctioned the loan at the relevant time. With regard to the motive of the accused for commission of the offence, the prosecution has examined P.W.6 P. Muthamma but she has turned hostile to the prosecution and according to the prosecution about 2 days prior to the date of incident, A.3 came to her and proclaimed that they will do some thing or other as the deceased was harassing them and insulting them by demanding money. More over, even the motive for the alleged offence presumed to be established, the same cannot be considered as motive for the commission of the offence by the accused as it is only a demand for repayment of the loan taken by the wife of the A.1. With regard to the occurrence of the incident, according to the prosecution, the incident has taken place on 14.11.2002 at 7.00 p.m when A.3 who is the mother of A.1 and his wife went to the bore well which is situated near the house of the deceased for drawing the water and on seeing them, P.W.1 and the deceased demanded to repay the loan amount and then A.3 and the wife of A.1 abused the deceased stating that he is demanding money whenever they found and that A.1 beat the deceased Yakub with M.O.1 stick on his head and A.2 beat the deceased with pestle on his head and back while A.3 caught hold of Yakub firmly. Therefore, according to the prosecution, the incident has taken place at the bore well near the house of the P.W.1. But P.W.1 has stated that A.3 and his wife A.1 came to the public tap situated besides their house, for fetching the drinking water. Her husband asked them to repay the loan amount taken by Saida Bee. A.3 and Saida Bee abused her husband stating her he is demanding the money as and when and wherever he happens to see them. They went home and reported the matter to A.1 and A.2. Thereupon, A.1 to A.3 and Saida Bee came again from their house by abusing them. A.1 was armed with M.O.1 stick, A.2 was armed with M.O.2 pestle. Her husband was sitting in front of their house. A.1 beat her husband with M.O.1 stick on his head and as a result of which her husband has fallen on one side. Thereupon Yakub Bee (A.3) held her husband firmly, A.2 Lalu Saheb beat her husband with M.O.2 pestle on his head. Again A.1 and A.2 beat her husband with their respective weapons on his head. On her raising cries, P.Ws.3,4,5 and 6 came there and witnessed the incident and her son P.W.2 was also present in the house and also witnessed the incident and according to her when the accused came against her house, P.W.6 advised them not to quarrel but the accused did not hear her advise. In the cross-examination, she admitted that there is hand pump bore well in front of the house of Busi Lingaiah and her husband demanded A.1 and A.3 while they were tapping the water in front of their house and she also admitted that the public tap is situated on the Eastern side of their house within their premises. But, in further cross-examination, she has stated that A.1’s wife and A.3 were drawing the water from the hand bore situated in front of house of Busi Atchaiah, father of Lingaiah. There are timings for supply of water to public tap. A.1 and A.3 did not come to their public tap at the time of incident and no water was coming at that time from the public tap. According to her, the A.1’s wife and A.3 come to the bore well which is situated opposite to the house of Busi Lingaiah there the deceased demanded for repayment of the loan amount and A.1’s wife and A.3 abused him and left to their house and informed her husband A.1 and thereafter A.1 to A.3 came to the spot. P.W.2 who is the son of the deceased has stated that A.1’s wife and A.3 came to the public tap situated by the side of their house to fetch water. At that time his father and mother asked Saida Bee and A.3 to repay the loan amount taken by Saida Bee. They indulged in quarrel with his father and mother stating that his parents are demanding money when ever they happens to see them. On hearing the loud voice of A.3 and Saida Bee quarreling with his parents, A.1 being armed with M.O.1 stick and A.2 being armed with pestle, came to their house. A.1 beat with M.O.1 stick, A.2 beat with M.O.2 pestle on the head of his father, A.3 held his father tightly when fell down, thereafter A.1 and A.2 gave blows one each with their respective weapons. Therefore, according to P.W.2, the incident has taken place near the public tap situated by the side of their house which is contrary to the evidence of P.W.1. But the defence counsel in the cross-examination elicited that the incident has taken place near the hand bore pump situated near the house of Busi Lingaiah. Therefore, the defence counsel himself has demolished the contrary evidence of P.W.2 in his chief-examination with regard to the scene of offence. Apart from the interested witnesses of P.Ws.1 and 2, the independent witness P.W.3 was examined by the prosecution and according to him on the date of incident at about 7.00 p.m, A.1 beat the deceased with M.O.1 stick, A.2 beat deceased with M.O.2 pestle and each accused i.e., A.1 and A.2 gave 2 blows each. A.3 was also present along with A.1 and A.2 and he did not speak about the quarrel that took place between the deceased and the A.1 and his wife A.3. But, the same was elicited in the cross- examination by the defence counsel. In the cross-examination, he has stated that A.3 and A.1 indulged in commission of the offence. Therefore, P.Ws.1 and 2 have spoken specifically about the overt acts of the A.1 to A.3, but whereas, the P.W.3 has given a vague version with regard to A.1 and A.2 beating the deceased. Even in the complaint Ex.P.1 given by the P.W.1, the specific overt acts as stated by her in her evidence were not mentioned therein. Even though the prosecution has stated that the P.Ws.4 and 6 as they are the eye witnesses to the incident, they have turned hostile to the prosecution. The other eye witness P.W.5 has given a different story with regard to the occurrence of the incident and according to her on the date of incident at 7.00 p.m, A.3 came to the public boring pump to fetch the water. A.1 and his son-in-law were quarreling prior to that, A.1 beat his son-in-law saying that why he is demanding the money wherever they found and hitting with a stick on his head and in the meanwhile A.2 came there and hit the deceased on his head with pestle. Therefore, P.W.5 has given a different version with regard to the occurrence of the incident and he has not spoken any thing about the presence of A.1’s wife at the time of incident. Therefore, P.W.5’s evidence is not supporting to the case of the prosecution with regard to the occurrence of the offence as alleged by them. With regard to the observation of the scene of offence and holding of the inquest on the dead body of the deceased, the prosecution has examined P.Ws.8,9,10 and 14 and all of them have turned hostile to the prosecution and they have stated that their signatures were obtained on the blank papers in the police station. With regard to the recovery of the M.Os.1 and 2 at the instance of A.1 and A.2, the Investigating Officer P.W.18 has stated that on 26.11.2001 at 1.00 p.m, he arrested A.1 to A.3 at the R.T.C bus stop of Polisetti Gudem and on interrogation the accused have voluntarily confessed the offences in the presence of P.Ws.11 and 12 leading to recovery of crime weapons. In pursuance of their confession, A.1 and A.2 voluntarily lead the police to their house at Polisetti Gudem village and A.1 voluntarily went inside the house and produced a stick M.O.1 and A.2 produced M.O.2 pestle. P.Ws.11 and 12 have not supported the version of the prosecution and they have turned hostile to the prosecution and according to P.W.11, he was called to the house of the accused and obtained his signature on the Panchanama and accused were not present at that time. According to P.W.12, the police called him to the police station and obtained his signature on some papers and he did not know what has written in the said papers and the accused were not present in the police station at that time. Therefore, the prosecution as failed to establish the recovery of M.Os.1 and 2 at the instance of A.1 and A.2. With regard to the death of the deceased, P.Ws.1 and 2 have stated that they have taken the deceased to the police station and from there they have taken the deceased to the Government Hospital, Khammam where he died while he was undergoing treatment. P.W.17 who is the Doctor who examined the deceased at the first instance and according to him, he examined the deceased on 14.11.2001 at 9.00 p.m and found four injuries and P.W.13 who is the Doctor who has conducted the autopsy over the dead body of the deceased on 15.11.2001 found nine injuries and according to him 1 to 6 are external injuries and 7 to 9 are the internal injuries. Basing on the evidence of P.Ws.13 and 17, the appellants’ counsel has pleaded that the injuries are not supporting the version of the prosecution and P.W.13 has found only two injuries and whereas the P.W.17 has found only nine injuries. P.W.17 who has examined the deceased immediately after the incident has found four external injuries and whereas the Doctor who conducted the autopsy has found six external injuries and three internal injuries and he has found four injuries i.e., fracture of frontal and bone of right in-multiple pieces and the said fractures are not visible on physical examination and therefore, P.W.17 could not mention those injuries in his certificate issued by him. Therefore, there is no discrepancy with regard to the injuries found by P.Ws.13 and 17. More over according to P.W.13, the cause of death was due to crania cerebral injury. Thus, the prosecution could able to establish the death of the deceased due to the injuries sustained by him. But the prosecution could not able to establish that the said injuries were caused by the accused. P.Ws.1 and 2 are only interested witnesses to the incident and P.Ws.3 to 6 have not supported the version of the prosecution as alleged by them and they gave a different version with regard to the occurrence of the incident. The learned counsel for the appellants has further pleaded that A.2 was examined by P.W.17 on the same day of the incident and he sustained a grievous injury on his head and the prosecution has failed to explain the same and it is a fatal to the case of the prosecution. With regard to A.2 sustaining injury, P.W.17 who is the Doctor has stated that on 14.11.2001 at 1.30 p.m, A.2 has come to himself through Khamam Rural Police Station and he found a lacerated injury ½” x ¼” on the middle of first injury and a lacerated wound ½” x ¼” on the middle of fore- head and contusion of right upper eye-lid involved. But the P.W.16 who is the Head Constable, Gundala P.S who registered the case has denied about the A.2 coming to the police station on the same day of the incident at 8.00 p.m and he was referred to the Hospital by them. Therefore, except the establishing of the injuries on A.2, the defence counsel could not put forth any evidence when and where he sustained the said injuries. Admittedly, the incident has taken place at 7.00 p.m and whereas the P.W.17 has examined the deceased at 11.20 p.m. Therefore, sustaining of injuries is not relevant for the case of the prosecution. In any case, as the prosecution has failed to establish the offence under Section 304 Part-II IPC against the accused, I hold that the accused and the accused are entitled to be acquitted. In the result, the appeal is allowed and the conviction and sentence passed by the III Additional Sessions Judge (Fast Track Court), Khammam in S.C.No.110 of 2002 dated 15.10.2004 is hereby set aside and the appellants/A.1 and A.2 are acquitted. ______________________ P.DURGA PRASAD,J. Date:17.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2437 OF 2004 Dated 17-03-2011 Gk.