THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.66 and 67 of 2007 Date of Judgment: 14-06-2010 CT in Crl.A.No.66 of 2007 Between: Uyyala Pedda Sekhanna (A6) …Appellant and State of A.P., rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.66 and 67 of 2007 Common Judgment: (Per Honourable Sri Justice K.C.BHANU) A6 filed Crl.A.No.66 of 2007 whereas A1, A2, A4 and A5 filed Crl.A.No.67 of 2007 challenging the judgment dated 21-11-2006 in S.C.No.9 of 2005 on the file of Principal Sessions Judge, Kurnool whereunder and whereby A1, A2 and A4 to A6 were found guilty for the offence punishable under Section 302 r/w 149 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced to undergo imprisonment for life and to pay a fine of Rs.100/- each, in default to suffer simple imprisonment for 15 days each. Similarly, A1, A2 and A4 to A6 were found guilty for the offence punishable under Section 148 IPC for causing injuries to P.W.1 and sentenced to suffer simple imprisonment for one year each, and A1 and A4 to A6 were found guilty of the offence punishable under Section 326 IPC and sentenced to suffer simple imprisonment for one year each and to pay a fine of Rs.100/- each, in default to suffer simple imprisonment for 15 days and A4 was found guilty for the offence punishable under Section 324 IPC for causing injuries to P.W.2 and sentenced to suffer simple imprisonment for six months. All the sentences are directed to run concurrently. 2. The case of the prosecution is as follows: P.Ws.1 and 4 are brothers; P.Ws.2 and 3 are sons and P.W.5 is the daughter of Gaggaiah (hereinafter referred to as ‘deceased’). The material witnesses, the deceased and the accused were living in Kothaburuju village. There were disputes in between the deceased family and the accused with regard to sharing of water and other things. P.W.5 was given in marriage to one Nagendraiah s/o Nagesh, who is the brother-in-law of A1 to A4. After the marriage, she was harassed by her husband to commit suicide. In that connection, on the request of the husband and parents’-in-law of P.W.5, the deceased did not give any report against them. One month after the said incident, A2 made an accusation against P.W.4 and beat him for committing theft of his tape recorder. In turn, P.W.4 gave a report to the police, who then arrested A2. Three days thereafter, A2 returned to the village. Then P.W.4, his wife and another admonished A2 for making false accusation. In turn, A2 threatened P.W.4 with dire consequences. While so, on 11-06-2003 at about 6.30 P.M., P.Ws.1 and 2, the deceased and one Maddileti were watching the sheep in the field of one Konda Reddy. All the accused came there; among them, A1 to A3, A5 and A6 were armed with sticks and A4 was armed with a sickle. At that time, A2 asked the deceased as to where he kept P.W.4. The deceased replied that P.W.4 was not there. Then, A2 beat with a stick on the back of the head of the deceased. The deceased fell down. A1 and A3 kept their legs on the chest of the deceased and caught hold of his hands and twisted. When P.W.1 intervened to rescue the deceased, A4 dealt a blow with the sickle on fore leg of P.W.1; A5 beat with a sickle on his right fore arm below his right wrist. P.W.1 also received injury on his left thumb. Then, P.W.1 shouted asking his people to run away. While P.W.2 along with two others were running way, A3 and A4 chased them and gave eight blows between left ankle and left back of P.W.2 with sticks. Thereafter, the accused left the scene of occurrence. Then, P.W.1 and the deceased were shifted to the Government Hospital, Dhone. At about 12.30 A.M. (early hours of 12-06-2003) the Doctor—P.W.8 examined the deceased and informed that he died. At about 1 A.M., on the same day, P.W.10—Assistant Sub-Inspector of Police, Dhone, who received the death intimation from the hospital, went there and recorded the statement of P.W.1 covered under Ex.P1. On the basis of Ex.P1, P.W.10 registered a case in Cr.No.14/2003 under Sections, 147, 148, 307, 302 r/w 149 IPC. Ex.P11 is the FIR. On 12-06-2003 at about 7 A.M., P.W.11—Circle Inspector of Police, Peapuly, who received FIR in Cr.No.114/2003 of Dhone Police Station, on point of jurisdiction, registered a case in Cr.No.35 of 2003 of Peapuly Police Station under the same Sections and issued Ex.P12—FIR. On the same day i.e. 12-06-2003, P.W.11 visited the Government Hospital, Dhone and recorded the statements of P.Ws.3, 4 and two others. On 12-06-2003, P.W.10 held inquest over the dead body of the deceased and seized his blood stained clothes—M.Os.5 to 7 in the presence of P.W.6 and another. Ex.P2 is the inquest report. On 12-06-2003, P.W.10 visited the scene of offence and prepared the scene of observation report—Ex.P3 and seized blood stained earth—M.O.8 and controlled earth—M.O.9 in the presence of P.W.6 and another. On the same day i.e. 12-06-2003, P.W.8—Woman Assistant Surgeon, Government Hospital, Dhone conducted autopsy over the dead body of the deceased and opined that the cause of death was due to Trauma Haemorrhage Shock and issued Ex.P7 post mortem report. On 13-06-2003, P.W.11 visited the hospital at Kurnool and recorded the statements of P.Ws.1 and 5 and seized blood stained towel of P.W.1 covered under Ex.P4. Thereafter, the material objects were sent to Forensic Science Laboratory, Ananthapur. Ex.P16 is the FSL report. On 02-07-2003, P.W.11 arrested A1 to A5, and A1 lead the police to the place where they threw the sticks into the bushes and collected two sticks—M.O.3 and 4 in the presence of P.W.7 and another. After completion of investigation and after collecting the required documents, P.W.11 laid a charge sheet. 3. “The first charge levelled against A1 to A6 was that on 11-06-2003 at about 6.30 P.M. in the field of one Konda Reddy at Kothaburuju village of Dhone Mandal, all the accused, who are the members of unlawful assembly, in prosecution of the common object of such assembly, to wit, to kill the Kadiri Yerikali Gaggaiah s/o Kadiri Ramana (deceased) of Kothaburuju village did commit the offence of rioting and at that time they were armed with deadly weapons like sticks and sickles and thereby committed an offence punishable under Section 148 IPC. The second charge was that A1 to A3 on the same date, and the same time and place, as mentioned in Charge No.1, committed the murder of the deceased by intentionally causing his death; A2 dealt a blow on the back side of the head of the deceased with a sickle and caused bleeding injury, as a result of which the deceased fell down and then A1 to A3 put their legs on the deceased and twisted his hands, and thereby committed an offence punishable under Section 302 IPC. The third charge was that A1 to A6 on the same day, at the same time and place as mentioned in Charge No.1, all the accused, who are members of unlawful assembly, in prosecution of common object of such assembly, did commit the murder of the deceased by intentionally causing his death; A4 to A6 knew likely to be committed in prosecution of the common object of the said assembly and all the accused (A1 to A6) are thereby under Section 149 IPC guilty of committing the said offence punishable under Section 302 IPC. The fourth charge levelled against A1 and A4 to A6 was that on the same day, at the same place and time, as mentioned in Charge No.1, A4 hacked Kadiri Yerikali Venkatappa (P.W.1), one of the brothers of the deceased, on his right leg below knee with a sickle; A5 beat him with a stick on his right wrist, and A1, A5 and A6 beat him with sticks on his hands and legs causing grievous injuries, with the intention or knowledge of killing him, and thereby committed an offence punishable under Section 307 IPC. The fifth charge was that on the same day, at the same time and place, as mentioned in Charge No.1, A3 and A4 voluntarily beat Kadiri Ramachandrudu son of the deceased (P.W.2) indiscriminately and caused him simple injuries with sticks, which are dangerous weapons, and thereby committed an offence punishable under Section 324 IPC. “ When the said charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution has examined P.Ws.1 to 11 and got marked Exs.P1 to P16 besides case property—M.Os.1 to 8. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, they denied the same. On behalf of defence, D.W.1 was examined, but no documents were marked. 6. The trial court placing reliance on the evidence of P.Ws.1 and 2 came to the conclusion that the prosecution has established its case beyond all reasonable doubt for the charges levelled against the accused and accordingly convicted and sentenced them as stated above. Challenging the same, the present appeals are filed. 7. The point for determination in these appeals is: “Whether the prosecution has established its case beyond all reasonable doubt for the charges levelled against the accused”. 8. The learned senior counsel, Sri C.Padmanabha Reddy, appearing for the appellants in both the appeals contended that ocular testimony is totally inconsistent with the medical evidence; that the evidence of P.Ws.1 and 2 would go to show that A2 allegedly caused an injury on the back side of the head of the deceased with a stick, whereas the Doctor—P.W.8 opined that the said injury was possible with a sharp edged weapon; that except the interested testimony of P.Ws.1 and 2, who are none other than the brother and son of the deceased respectively, there is no other evidence to corroborate their evidence; that the recitals in Ex.P1—FIR are totally varying with the evidence of P.W.1; that since the incident is alleged to have taken place during the night time in the fields, there was no scope for any of the prosecution witnesses to see the attack on the deceased; that due to previous disputes between the material prosecution witnesses and the accused, the witnesses implicated the accused taking advantage of the death of the deceased; that the deceased sustained injuries at the hands of unknown persons; that it is not safe to rely on the evidence of P.Ws.1 and 2 so as to base a conviction, and therefore, the convictions and sentences inflicted against the accused are liable to be set aside. He also contended that there are no circumstances to indicate that all the accused shared common object so as to eliminate the deceased; that the accused, A4 to A6, did not cause any injuries to the deceased; that in the absence of any other evidence, convicting them with the aid of Section 149 IPC is not proper. 9. On the other hand, the learned Public Prosecutor contended that the presence of the accused at the relevant point of time cannot be doubted; that P.Ws.1 and 2 are the injured witnesses; that it is not the case of the accused that the injuries on P.Ws.1 and 2 were self-inflicted; that the injuries found on them further strengthen their presence at the scene of occurrence; that as the accused are distantly related to P.Ws.1 and 2, they would not have implicated them falsely leaving the real assailants; that the Doctor—P.W.8, who conducted post mortem examination, did not completely rule out the possibility of causing injury on the back side of the head of the deceased other than with a sharp edged weapon; that the lower court after elaborately considering the evidence on record rightly found the accused guilty and there are no grounds to interfere with the convictions and sentences recorded against them. 10. P.W.6 is one of the inquest mediators present when P.W.11 conducted inquest over the dead body the deceased. Inquest mediators opined that the deceased died due to head injuries. 11. P.W.8 is the Doctor who conducted autopsy over the dead body of the deceased on 12-06-2003 at 1.30 P.M. and found the following injuries. External: 1. Bleeding wound measuring 6 x 6 x 3 cms. at the right temporal region and extending to the right occipital area. 2. Broad contusion on the left back measuring 10 x 5 cm. 3. Right elbow fractured (compoundly) and swollen and right shoulder fractured. 4. Left elbow was fractured compoundly and swollen. 5. Bleeding injury on the right knee 3 x 2 x 1 cm. Internal: 1. Large haematomotous collection at the occipital area extending upto the right temporal side. The brain was pale. 2. Abdomen: Partialileus (dilated) the stomach contained brownish liquid and there was residual urine in the bladder about 20 ml. 12. The Doctor—P.W.8 opined that the deceased would appear to have died due to Trauma haemorrhage shock about 14 to 18 hours prior to his conducting post mortem examination. According to the Doctor, injury No.1 i.e. bleeding wound measuring 6 x 6 x 3 cms. at the right temporal region, extending to the right occipital area, is sufficient to cause the death of the deceased in the ordinary course of nature. 13. No doubt, as rightly pointed out by the learned senior counsel the Doctor opined that the first injury could have been caused by sharp edged object. Ordinarily, the evidence of an expert is opinion evidence. Simply because the Doctor stated that the said injury is possible by hacking with a sharp edged weapon, it does not mean that his evidence has to be accepted as gospel truth, in the absence of surrounding circumstances. Some times nature and description of the wound would be of great importance to decide whether the particular wound or injury was caused by a blunt object or a sharp edged weapon. Doctor has not ruled out the possibility of sustaining injury No.1 by beating with a stick. Therefore, it cannot be said that ocular testimony is contradictory with the medical evidence. The fact remains, the evidence of the Doctor coupled with his opinion—Ex.P7 would clearly go to show that the deceased died as a result of Trauma haemorrhage and shock. Even the accused did not deny or dispute the same as spoken to by P.W.8. Therefore, homicidal nature of the death of the deceased is established beyond reasonable doubt. 14. The entire case rests upon the evidence of P.Ws.1 and 2, who are said to be the eyewitnesses present at the time of occurrence. They are none other than the brother and son of the deceased respectively. The incident, according to the prosecution, is alleged to have taken place in the field of one Konda Reddy. It is the case of the prosecution that on 11-06-2003 at 6.30 P.M., P.Ws.1 & 2, deceased and one Maddileti were watching sheep in the field of one Konda Reddy and it is at that time the alleged incident has taken place. 15. Insofar as motive for the incident is concerned, there were some disputes between the accused and P.Ws.1 to 4 with regard to sharing of water. Similarly, P.W.1 gave a report against A2 for committing theft of tape recorder for which A2 was arrested and two days later he returned to the village. This incident had happened one month prior to the death of the deceased. During the course of said incident, P.Ws.1 and 2 sustained injuries. P.W.8, the Doctor who examined P.W.1 on 12-06-2003 at 12.20 AM. found the following injuries: 1. Compound fracture of right wrist, lunar bone fracture. 2. Fracture of right radius bone. 3. Fracture of left thumb (terminal phalanx). 4. Fracture of right shin and fibula. 5. Right knee haemarthrosis. 6. Left ankle swelling due to fracture of fibula. He issued Ex.P8—wound certificate. He also examined P.W.2 on 12-06-2003 at 12.27 A.M. and found the following injuries: 1. Contusion on the right scapular area. 2. Contusion on the left scapular area. 3. Contusion on the low mid back. 4. Left knee haemarthrosis. 5. Blunt injury on the occipital area of head. 6. Swelling on the left ankle-tenderness present. 7. Swelling on the left fore arm swelling and tenderness present. 8. Abrasion on the left fore arm. He issued Ex.P9—wound certificate. 16. The opinion of the Doctor with regard to nature of weapon is a blunt object like stick. However, all the injuries on P.W.2 were simple in nature, whereas P.W.1 sustained five grievous injuries and one simple injury. Practically, the evidence of P.W.8, Doctor and the recitals in Exs.P8 and P9 remain unchallenged with regard to sustaining injuries by P.Ws.1 and 2. It is not the case of the accused that P.Ws.1 and 2 sustained injuries in some other place, in some other manner and in the hands of some others persons. It is also not the case of the accused that injuries sustained by P.Ws.1 and 2 are self- inflicted. 17. P.W.9 Radiologist speaks about fracture sustained by P.W.1. After taking X-rays, he opined that P.W.1 sustained four fractures. The evidence of P.W.9 and his opinion—Exs.P10 (A) to 10(D) remains unchallenged. Therefore, the evidence of P.Ws.1 and 2, who are the injured eyewitnesses, would go to show that their presence at the time of incident would be quite possible and natural. It is not in dispute that the deceased was having 100 sheep and he kept the same in the field of one Konda Reddy. It is also quite possible for the deceased and P.Ws.1 and 2 to keep watch over the sheep in the field. Therefore, the presence of P.Ws.1 & 2 and the deceased at the relevant point of incident is natural and convincing. If any untoward incident happens, it can be said that P.Ws.1 and 2 are the best persons to witness the same at the place of occurrence. The evidence of P.Ws.1 and 2 would go to show that on the date of incident at about 6.30 P.M., A1 to A3, A5 and A6 were armed with sticks and A4 was armed with a sickle came to the scene of occurrence; A2 questioned the deceased with regard to whereabouts of P.W.4, who is no other than the brother of the deceased. The deceased stated that P.W.4 was not there. Then, A2 beat the deceased with a stout stick on the backside of the head of the deceased. As a result, the deceased fell down. Then, A1 and A3 kept their legs on the chest of the deceased and caught hold of his hands and twisted. As a result, both the hands of the deceased were broken. When P.W.1 intervened to rescue the deceased, A4 dealt a blow with a sickle on his leg, as a result, he also fell down; A5 beat him with a sickle on his right fore arm below his right wrist. Then P.W.1 shouted asking his people to run away; thereafter, his brother’s son—Nagaraju and Narayana came to the spot by tractor and took P.W.1 and the deceased to the Government hospital, Dhone. On intimation from the hospital, the Assistant Sub-Inspector of Police, Dhone went to the hospital and recorded the statement of P.W.1 covered under Ex.P1. If really P.W.1 wants to foist a false case against the accused, he would have gone to the police station immediately instead of going to the hospital. The police came to the hospital on coming to know about the death of the deceased through medical intimation and recorded the statement of P.W.1. The recitals in Ex.P1 would clearly go to show that while P.Ws.1, 2 and deceased watching sheep, the accused came there; A2 asked the deceased as to where he kept P.W.4 and when the deceased pleaded ignorance, the attack was started. The earlier version as narrated in Ex.P1—report is completely in corroboration with the evidence of P.W.1. Once the recitals in Ex.P1 are found to be true and correct and not an outcome of due deliberation or giving false version, it can be used to corroborate the evidence of P.W.1. The earlier version as narrated in Ex.P1 more or less is completely in corroboration with the evidence of P.W.1. Therefore, there is no reason for us to disbelieve the earliest version as mentioned in Ex.P1. 18. Similarly, the evidence of P.W.2 would go to show that in the first instance, A2 questioned the deceased as to whereabouts of P.W.4 and when the deceased pleaded ignorance, A2 beat him with a stick on the backside of his head, whereas A1 and A3 twisted his both hands by placing their legs on the chest. It is also A3 and A4 causing injuries to him between left ankle and left back with sticks. When injuries to P.Ws.1 and 2 are caused at the place & time and the date as stated by them, their presence at the scene of occurrence can be believed. In view of the fact that the alleged incident has taken place at 6.30 P.M., there is every possibility for the injured witnesses to identify the assailants of the deceased. P.Ws.1 and 2 knew the accused and they are related to the deceased. Further, the incident of beating was preceded by exchange of words. Therefore, in the said circumstances, it is quite possible for the witnesses to identify the assailants in the evening time i.e. at about 6.30 P.M. P.Ws.1 and 2 though related to the deceased, on that ground, their evidence cannot be disbelieved. Further, there is no other reason for P.Ws.1 and 2 to foist a false case against his own relatives, in a case of this nature. Ordinarily, close relatives of the deceased would not implicate the accused falsely leaving the real assailants. Therefore, the presence of P.Ws.1 and 2 at the time of occurrence is established beyond all reasonable doubt. 19. Learned senior counsel contended that since the evidence of P.Ws.1 and 2 is inconstant with the medical evidence, no reliance can be placed on their evidence. 20. No doubt, P.W.8, who is the Doctor, stated that fatal injury could be possible by hacking with a sharp edged weapon but none of the accused was in the possession of sharp edged weapon. The nature and description of the wound on the backside of the head of the deceased has not been specifically stated. Similarly, the Doctor has not specifically stated that fatal injury on the back side of the head of the deceased could not be possible by beating with a stick or blunt object. In such circumstances, it cannot be said that medical evidence is completely ruled out the possibility of deceased sustaining the injury in the manner as stated by the witnesses. Even if a blunt object came into with sufficient force on the bone portion of the skin, then there is every possibility of tearing of skin. In such circumstances, the tearing of skin would look like a cut injury. Therefore, though the Doctor, who conducted post mortem examination, has not specifically mentioned the descriptive particulars of injuries, but at the same time no specific question was put to him with regard to the ruling out possibility of causing injury by beating with blunt object, it cannot be said that the medical evidence is contradictory to the ocular testimony. 21. P.Ws.3 and 4, who are son and brother of the deceased, admittedly, were not present at the time of incident. They came to know about the deceased sustaining injuries at the hands of the accused. Their evidence is in the nature of hear say. Therefore, their evidence is not much relevant to speak about the presence and participation of the accused in the commission of offence. 22. P.W.5