HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2254 OF 2004 Dated 04-03-2011 Between: Dandu Veeraswamy ……..Appellant And: The State of AP., rep. by PP ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2254 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Sessions Judge, Warangal in S.C.No.73 of 2003 on 06.10.2004. The appellant was prosecuted for the offence under Section 302 IPC alleging that on 30.05.2002 at about 6.00 hours, the accused beat the deceased on his head and all over body indiscriminately with iron pipe which was used as spade stick, caused severe bleeding injuries, due to family and land disputes. Immediately he was shifted to Sangem Police Station and from where to MGM Hospital, Warangal for medical treatment and while he was undergoing treatment on 30.5.2002 at 15.45 hours he succumbed to the injuries. It is the further case of the prosecution that the complainant and the deceased were residents of Ashalapalli village. P.Ws.1, 3 and the accused are the brothers. P.W.2 is the wife of P.W.1. The deceased was the paternal uncle of the P.Ws.1 and 3. P.Ws.1 to 3 and T. Krishna Rao are the neighbouring land owners and the accused is the elder son of P.W.4 and elder brother of P.Ws.1 and 3. The deceased is an homeless person and staying with his younger brother (P.W.4). The deceased has leased out his ancestral agricultural lands on lease to the accused for past 10 years and he was irregular in paying the lease amount to the deceased. There are disputes between the accused and P.W.3 with regard to passage and the accused sold away his lands to one Kishana Rao and due to which P.W.1 has no way to go to his land and there was quarrel between the P.W.3 and the accused. P.W.1 and the deceased supported P.W.3 in the said quarrel P.Ws.1 and P.W.3 told the deceased to refuse to give the land on lease to the accused. Having come to know the said fact, the accused developed grudges on the deceased and decided to do away him and waiting for an opportunity. On 30.5.2002 morning at about 6.00 hours, the accused went to collect the hay through the land of P.W.1 from his hay stock, when the P.W.1 obstructed him, saying that he could not enter into his land, upon which there was quarrel arisen between them and the deceased and P.W.3 also joined with P.W.1 and fought each other. On seeing the P.Ws.2 and 4, the wife of the accused went and took away their husbands to their respective houses, but the accused beat his wife and in the meanwhile the accused came out of his house and beat the deceased who was sitting in front of the house and P.W.4 with iron pipe on his head and on other parts of the body indiscriminately. On the complaint given by the deceased, P.W.7 has registered a case in Crime No.69 of 2002 under Section 324 IPC and issued FIRs to the all concerned and took up the investigation and recorded the statement of the deceased and sent the deceased to MGM Hospital, Warangal for medical treatment. Subsequently P.W.9 took up the investigation and during the course of investigation, he visited the scene of offence and observed the scene of offence and drafted the panchanama. On receipt of the death intimation from the MGM Hospital, he altered Section of Law to 302 IPC and sent the information to all the concerned. He conducted the inquest over the dead body of the deceased and sent the same for postmortem examination. On 27.7.2002 at 9.00 hours apprehended the accused at his house and interrogated and during the course of interrogation he recovered the iron pipe from his possession under the cover of panchanama in the presence of the mediators and arrested him and sent him to judicial custody. The Doctor who conducted autopsy over the dead body of the deceased has opined that the deceased died due to head injury. Hence, the charge sheet was filed against the accused under Section 302 IPC. The learned Sessions Judge has framed the charge against the accused under Section 302 IPC and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge, examined P.Ws.1 to 10 and got marked Exs.P.1 to P.11 and M.O.1. The learned Sessions Judge after taking into consideration of both oral and documentary evidence, found the accused guilty for the offence under Section 304 Part-II IPC and convicted and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.500/- in default to suffer simple imprisonment for one month. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 304 Part-II IPC against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that the learned Sessions Judge has relied upon the evidence of the hostile witnesses and come to the conclusion that the accused has committed the offence. He further pleaded that the prosecution has failed to establish the motive for the commission of the offence and the version of the deceased is completely different from the version of the P.Ws.1 to 3 and the learned Sessions Judge has taken into consideration that the deceased died due to the head injury and as P.Ws.1 to 3 stated in their chief-examination that the accused hit him on his head with iron pipe and thereby come to the conclusion that the accused has committed an offence. The learned Public Prosecutor, on the other hand, has pleaded that the evidence of P.Ws.1 to 3 are consistent even though P.W.1 turned hostile when he was recalled for further cross-examination and the version of the deceased in Ex.P.4 is for other reason for committing offence by the accused. So subsequently he has given details of the disputes between the family members of the accused in Ex.P.8 and therefore, the prosecution could able to establish that the accused is responsible for the death of the deceased. According to the prosecution, on 30.05.2002 at about 6.00 hours, the accused beat the deceased on his head and all over his body indiscriminately with iron pipe which was used as spade stick, caused severe bleeding injuries, due to family and land disputes. A crime was registered at the instance of the deceased by lodging the complaint. According to P.W.7 who is the Head Constable of Sangem P.S that on 30.5.2002 at 8.00 hours he received a complaint from the deceased, which is Ex.P.4. On the basis of it, he registered a case in Crime No.69 of 2002 under Section 324 IPC. FIR is Ex.P.5. He recorded the statement of the deceased, which is Ex.P.6. In Ex.P.4, the deceased has stated that on 30.5.2002 in the morning at about 6.00 a.m., his brother’s son Dandu Veeraswamy took his land on lease about 10 years back but not paying lease amount to him and to whom he rejected to give his land on lease this year stating that he will cultivate his land and then the accused abused the deceased and asked him as to why he will not give his land on lease and while saying so, he beat him on his head with spade and thereby the deceased sustained bleeding injury on his head. When Dandu Sammaiah tried to obstruct him from beating him the accused also beat Dandu Sammaiah. So he requested the police to take action against Dandu Veeraswamy who beat him. The said Veeraswamy is the accused herein. But, according to the prosecution, there are disputes between P.Ws.1 to 3 and the accused with regard to landed property. According to P.W.1 who is the brother of the accused, the deceased was his senior paternal uncle. The deceased died about two years back. They reside in separate portions. The accused was cultivating the lands of the deceased. Sadaiah got two acres of land. Kishan Rao has got land adjacent to the land of Sadiah. Sadaiah objected the son of Kishan Rao for taking a tractor through his fields as the bunds will be damaged. When Sadiah stopped the tractor, Sripathi Rao, beat Sadaiah with a stick. A complaint was given and the case is pending. The accused sold his land to Kishan Rao. The deceased questioned the accused as to why he sold the land to others without selling the same to family members. Sadiah has to go to his fields from the fields of accused. It was about one month prior to the death of the deceased. The deceased called the accused and questioned him for obstructing the passage. Kishan Rao purchased the land about one month prior to the incident. On the date of incident, he objected the accused from going to the hay-heap which was near his house as he has to go through his open space. It was about 6.00 a.m. The accused beat him and he fell down. His wife came there. Thereafter, the deceased and his other brother came and they went to their houses. The accused went into his house and beat his wife and thereafter he came out with an iron pipe and beat the deceased who was standing in front of his house at a distance of 4 or 5 yards. The deceased was beaten on the head and he fell down and he was taken to M.G.M Hospital and where he died on the same day at about 3.30 p.m. Therefore, according to P.W.1 on the date of incident, the quarrel took place between the P.W.1 and the accused and prior to that incident only the deceased has questioned the accused for selling away his land to others instead of selling the same to the family members. But whereas in the complaint given by the deceased Ex.P.4, it is stated that he has refused to give his land on lease to the accused stating that he will cultivate the lands and while saying it, the accused beat the deceased with spade and so the deceased sustained bleeding injury on his head. Then the P.W.1 was called for further cross-examination and he turned hostile to the prosecution and he has deviated from his earlier statement given in chief-examination. P.W.2 is the wife of P.W.1 and she also supported the version of the P.W.1 in her chief-examination and in the cross-examination she has stated that there was a quarrel between the accused and Sadaiah for the sale of land to Kishan Rao. As he obstructed the accused on the date of incident, the deceased was attacked. The accused beat the deceased immediately after return from the house. P.W.3 is another brother of the accused has supported the version of P.W.1 in his chief-examination and according to him by the time he came out of the house, the deceased fell down as he has received injuries on the head and in all other parts of body. Therefore, P.W.3 has not supported the version of the prosecution with regard to hitting on the head of the deceased with iron pipe. P.W.4 is another eye witness to the incident has stated that on that day at 6.00 a.m he was on the road. As there was a quarrel between the accused and his brothers, he went there and took the accused inside his house. The accused beat his wife. The accused brought a pipe which is handle of a spade from the house and beat the deceased who was sitting in front of his house. The deceased was taken to the police station. M.O.1 is the pipe. In the cross-examination, he admitted that he went to the scene and thereafter he took the accused inside his house. After the accused beat his wife, he was near the wife of the accused. He did not see as to where from the accused picked the M.O.1. He did not personally see the beating of deceased. Immediately after the deceased fell down, he went near him. Therefore, P.W.4 turned hostile to the prosecution. He did not state about the accused beating the deceased with iron pipe. Therefore, the version of P.Ws.1 to 4 in their chief-examination is contrary to the version of the deceased in Ex.P.4 as P.Ws.1 to 4 have stated that when the incident has taken place, P.W.1 obstructed the accused while he was passing through in front of his house and there is no altercation between the accused and the deceased at that time. But whereas the deceased in Ex.P.4 stated that he refused to give his lands on lease to the accused and thereby the accused hit him with an iron pipe. Therefore, the version of the deceased in Ex.P.4 is contrary to the evidence of P.Ws.1 to 4 in their chief-examination. More over all the P.Ws.1 to 4 have turned hostile to the prosecution when they were cross-examined. With regard to recovery of M.O.1 at the instance of accused, the Investigating Officer P.W.9 has stated he arrested that the accused on 27.7.2002 and recorded his confession and recovered the iron pipe. But whereas the mediator for the said panchanama is P.W.6 has also turned hostile to the prosecution and according to him the police called him to the house of the accused and the accused was not present and the police obtained the signatures and nothing was seized in his presence. Therefore, recovery of M.O.1 at the instance of the accused was also not established by the prosecution. The learned Sessions Judge has observed merely because the First Information report did not say about the quarrel between the P.W.1 and the accused with regard to passage before attacking of the deceased does not mean that the entire prosecution failed. The said finding of the learned Sessions Judge cannot be accepted because the investigation was set into motion by the deceased himself by lodging the complaint Ex.P.4 where he has given a specific motive for the accused for causing injury to him on his head but whereas the evidence of P.Ws.1 to 4 is otherwise and they did not speak anything about the deceased refusing the lease of land to the accused. The learned Sessions Judge has mainly relied upon the evidence of P.Ws.1 and 2 in their chief- examination and as they stated that the accused beat the deceased on his head with iron pipe come to the conclusion that the accused is responsible for causing the death of the deceased even though P.Ws.1 and 2 have turned hostile to the prosecution in the cross-examination. Even otherwise P.W.2 has categorically stated in their cross- examination that they went inside along with P.W.1 immediately after hearing abut their coming out. Therefore, the P.W.1 has not witnessed the accused hitting on the head of the deceased with iron pipe. P.W.3 has specifically stated in the chief-examination itself that by the time he come out of the house, the deceased fell down and he did not notice anything. P.W.4 even though stated in his chief-examination that the accused brought a pipe which is handle of a spade from the house and beat the deceased who was sitting in front of his house, but in the cross-examination he has stated that he went to the scene and thereafter he took the accused inside his house. After the accused beat his wife, he was near the wife of the accused. He did not say as to where from the accused picked up the M.O.1. Therefore, P.Ws.2 to 4 have not specifically stated that the accused beating the P.W.1 and thus the only evidence available on record to speak about the incident is the evidence of P.W.1 and he has also turned hostile to the prosecution. In view of the disputes between the P.W.1 and the accused prior to the incident with regard to passage, it is not safe to rely upon the sole testimony of P.W.1 without any corroboration. Therefore, the finding of the learned Sessions Judge that the accused is responsible for causing the death of the deceased is not basing on the material available on record. It appears that the learned Sessions Judge has come to the said conclusion merely on the ground that the accused has sustained head injury and P.Ws.1 to 3 have spoken that the injury was caused by the accused and he has not examined the back ground on which the above incident alleged to have taken place. Therefore, for the above said reasons, I hold that the finding of the learned Sessions Judge is liable to a be set aside and the prosecution is failed to establish the offence under Section 304 Part-II IPC beyond reasonable doubt and the accused is entitled for acquittal. In the result, the appeal is allowed and the conviction and sentence passed by the learned Sessions Judge, Warangal in S.C.No.73 of 2003 dated 06.10.2004 is hereby set aside and the accused is acquitted. ______________________ P.DURGA PRASAD,J. Date:04.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2254 OF 2004 Dated 04.03.2011 Gk.