HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.50 OF 2007 Dated:16-06-2010 BETWEEN: State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad …Appellant AND Gondu Ramanamurthy & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.50 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) Aggrieved by the order of acquittal, dated 12.10.2006 in S.C.No.170 of 2002 on the file of II Additional District & Sessions Judge (Fast Track Court), Srikakulam whereunder and whereby the respondents 1 to 10, 12 and 13-accused Nos.1 to 10, 12 and 13 were acquitted of the charges levelled against them, the State preferred the present appeal. 2. The case of the prosecution is that the Bobbilipeta village is a politically sensation village in Amadalavalasa Mandal. Two political rival groups are there in the village. One group is led by Accused No.1 and the other group is led by P.W.1-Ex-Sarpanch. Ill-feelings became bitter between both the groups since last Panchayat elections. Accused party was waiting for an opportunity to do away with the lives of their rival group members. While so, in the night of 27.1.2002, while P.W.1 and one Gurugubelli Jayanthirao (hereinafter referred to as ‘the deceased’) were coming to Bobbilipeta Village from Amadalavalasa, on a cycle, the accused party members took this opportunity to their advantage and all of a sudden, the accused formed themselves into an unlawful assembly with a common object of doing away with the lives of P.W.1 and the deceased. The accused first attacked the deceased and brutally beat him with lethal weapons causing severe bleeding injuries on the person of the deceased. When P.W.2 went in rescue of the deceased, the accused also beat her with lethal weapons. A.1 beat the deceased with an iron-kathava on the left forehead of the deceased. A.2 beat the deceased with a stout-stick on the left side jaw, fractured his left hand and also on the left side of his chest. A.3 beat the deceased with a kathaa-borigi on his right-fore leg. A.4 beat the deceased with a konri-karra on his left buttock. A.5 beat the deceased with a kathava on his person. When A.5 attempted a blow on the person of the deceased, P.W.2 went in rescue of the deceased and the blow hit on her head with the kathava. A.6 beat the deceased with a stout-stick on his left side ribs. A.7 beat the deceased with a stout-stick on his left side back. A.9 beat the deceased with stout-stick on his right hand. A.12 beat the deceased with a stout-stick on his right forehand. A.10 beat the deceased with a stout-stick on his two thighs. A.13 beat the deceased with a stout stick on his right forehand. Immediately, P.Ws.1 and 2 took the deceased (while alive with injuries) in the auto of P.W.8 to the District Hospital, Srikakulam for treatment with the escort of P.W.7 having been referred by P.W.17. P.W.1 presented a report about the occurrence on which P.W.10 registered a case in Crime No.7/2002 for the offences under Sections 147, 148, 324, 307, 323, 326 r/w 149 IPC and investigated into. While P.W.1 took the deceased to the District Hospital, Srikakulam, P.W.6 tested the deceased and declared him to be dead. On that, P.W.1 came to the police station and presented a report on which basis, P.W.10 re-registered the case adding the section of law 302 IPC and P.W.14 took up investigation. P.W.14 visited the scene of offence, got an observation report drafted at 8.00 a.m. in the presence of mediators P.Ws.8 and 12 and prepared a rough sketch. P.W.5 took the photographs of the scene of offence. P.W.14 seized the bloodstained clothes of the deceased at 5.00 p.m. on 28.1.2002 duly attested by the mediators-P.W.8 and 12. P.W.14 examined P.Ws.1 to 9, recorded their statements and sent the injured- P.W.2 for medical treatment. During the course of investigation, P.W.14 arrested A.1 on 3.2.2002 at 10.00 a.m. in the presence of mediators-P.Ws.8 and 13 and got his confessional statement recorded vide mediators report, dated 3.2.2002 at 10.00 a.m. In pursuance of the confessional statement of A.1, P.W.14 arrested A.4 to A.13 at the house of one Pedada Jagannadham in Srinivasacharyulapeta Village at 11.30 a.m. on 3.2.2002 in the presence of mediators-P.Ws.8 and 13 and seized the crime weapons. P.W.14 sent these accused to judicial remand. During the course of further investigation, P.W.11 arrested A.2 and A.3 at 9.30 a.m. on 21.6.2002 in the presence of mediators P.W.8 and 9 and got their confessional statement recorded vide mediators report dated 21.6.2002 at 9.00 a.m., and in pursuance of their confessional statement, the crime weapons were recovered at 10.10 a.m. on 21.6.2002. The material objects seized in the case were forwarded for chemical analysis. P.W.6 conducted autopsy over the body of the deceased and recorded the external and internal injuries and opined that the cause of death was due to injury to the vital organs and haemorrhage and shock and issued post-mortem report. P.W.6 treated P.W.2 and opined that the injury found on the person of P.W.2 is simple in nature and issued wound certificate. After completion of investigation, police laid the charge sheet. 3. During pendency of the sessions case, A.11 died and so, case against him was abated. 4. The charges framed against the accused are as under: “Charge No.1: That all of you along with Metta Sriramamurthy (A.11/died) on 27th day of January, 2002 were members of an unlawful assembly, and in prosecution of the common object of that assembly armed with Kattuva boriga and sticks which are the weapons likely to cause death and attacked Gurugubelli Jayanthirao (deceased) and Gurugubelli Chalapathirao (L.W.1) and that you thereby committed an offence punishable under Section 148 of the Indian Penal Code and within the cognizance of this Court. Charge No.2: That on the same date, at the same time and place during the course of same transaction mentioned in the aforesaid charge No.1, A.1 Gondu Ramanamurthy of you beat on the head of deceased Gurugubelli Jayanthirao with kattuva boriga (a long iron rod with a blade at the end) on his left fore head and did commit murder by intentionally or knowingly causing the death of deceased Jayanthirao and thereby committed an offence punishable under Section 302 of Indian Penal Code and within my cognizance. Charge No.3: That on the same date, same time and place during the course of same transaction mentioned in the aforesaid charge No.1, you A.2 to A.10, A.12 and A.13 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 302 IPC (mentioned in charge No.2) in prosecution of the common object of that assembly knew it likely to be committed in prosecution of such object and you are therefore guilty of that offence punishable under Section 302 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.4: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.2 Gondu Muralidhar of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left jaw, and thereby committed an offence punishable under Section 326 IPC and within my cognizance. Charge No.5: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1, A.3 to A.10, A.12, A.13 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 326 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 326 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.6: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.3 Gondu Krishna Rao of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of kathava borigi (a long iron rod with a blade at the end), which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his right forehead, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. ChargeNo.7: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1, A.2, A.4 to A.10, A.12 and A.13 along with A.11(died) of you were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.8: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.4 Pydi Sriramamurthy of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of Konti Karra, which, if used as weapon of offence and likely to cause death and hence, deadly weapons caused injury on his left jaw, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.9: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.3, A.5 to A.10, A.12 and A.13 with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.10: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.5 Gondu Vasantha Kumar of you voluntarily caused hurt on the ribs of Guruguballi Varahalamma (L.W.2) by means of Kathava, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on her left jaw, and thereby committed an offence punishable under Section 326 IPC and within my cognizance. Charge No.11: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.4, A.6 to A.10, A.12 and A.13 with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 326 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.12: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.6 Metta Veera Vasantha Kumar of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.13: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.5, A.7 to A.10, A.12 and A.13 with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.14: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.7 Metta Govinda Rao of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.15: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.6, A.8 to A.10, A.12 and A.13 with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.16: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.9 Metta Laxminarayana of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.17: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.8, A.10, A.12 and A.13 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.18: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.10 Gondu Prasadarao of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.19: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.9, A.12 and A.13 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.20: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.12 Chinthada Rajagopalarao of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.21: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.10 and A.13 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance. Charge No.22: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, A.13 Gondu Ramesh of you voluntarily caused hurt to Guruguballi Jayanthirao (deceased) by means of stout stick, which, if used as weapon of offence and likely to cause death and hence deadly weapons caused injury on his left side ribs, and thereby committed an offence punishable under Section 324 IPC and within my cognizance. Charge No.23: That on the same date, at the same time and place and during the course of the same transaction mentioned in the aforesaid charge No.1, you A.1 to A.10 and A.12 along with A.11 (died) were members of an unlawful assembly, one of the members of which committed the offence of 324 IPC (mentioned in the above charge) in prosecution of the common object of that assembly to kill knew it likely to be committed in prosecution of such object and you, are therefore guilty of that offence punishable under Section 324 read with Section 149 of the Indian Penal Code and within my cognizance.” When the charges were read over and explained to the respective accused, they pleaded not guilty. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.30 besides the case properties-M.Os.1 to 13. 6. The Trial Court upon consideration of evidence on record, found that the prosecution could not establish the guilt of the accused beyond all reasonable doubt, and accordingly acquitted A.1 to A.10, A.12 and A.13 of the charges with which they were charged. Challenging the same, the present appeal is filed by the State. 7. Now, the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the respondents- A.1 to A.10, A.12 and A.13 for the charges levelled against them and whether the judgment of the trial Court is correct and proper? 8. The learned Public Prosecutor contended that P.Ws.1 to 3 are the witnesses to the incident, that they speak about the specific overt acts of the accused who participated in the commission of offence, that there is no other reason for them to foist a false case against the accused, that furthermore P.W.2 is the injured witness and whose presence at the time of incident is established and she also speaks about the participation of the accused in attacking the deceased. He also contended that P.W.2 has no enmity or grouse against the accused to implicate them falsely, that the incident has taken place in front of her house, and therefore, there is possibility for P.Ws.2 and 3, who are wife and husband, to come out from the house and witness the incident, and that the trial Court has not at all appreciated the evidence and no findings are recorded to disbelieve the evidence of P.Ws.1 to 3, and that the death of the deceased is established as homicidal. Therefore, he prays to set aside the judgment of the trial Court and convict the accused. 9. On the other hand, learned senior counsel Sri T. Bali Reddy appearing for the respondents-accused contended that there are no compelling or substantial reasons to interfere with the judgment under challenge; that the presence of P.W.1 was eliminated by P.W.3 and that there are circumstances to indicate that Ex.P.1 was brought into existence just before sending it to the Court, that P.Ws.2 and 3 on their own showing could not have witnessed the incident since the house in which they were residing is far away from the scene of occurrence, that Ex.P.1 was brought into existence after due deliberations so as to implicate the opponents of P.W.1 as many number as possible, and that the trial Court upon consideration of evidence on record rightly acquitted the accused and the said order needs no interference by this Court. 10. This being an appeal under Section 378 of Code of Criminal Procedure, 1973 ordinarily this Court would not interfere with the order of the acquittal not for the reason that this Court has no power to re- appreciate the evidence. This Court has got full powers to re- appreciate the evidence but at the same time it would be slow in interfering with the order of acquittal for the reason that there is a presumption under law that accused is presumed to be innocent and that presumption of innocence is further strengthened by the order of acquittal. Unless it is shown that the findings are perverse or not based upon any admissible evidence or inadmissible evidence has been taken into consideration or admissible evidence has been overlooked, this Court would not ordinarily interfere with the order of acquittal. 11. P.W.14 held inquest in the presence of P.W.8 and others at the mortuary of Government Hospital, Srikakulam. The inquest mediators opined that the deceased would appear to have died of injuries on the head and other parts of the body. The opinion expressed by the inquest mediators remained unchallenged. 12. P.W.12 is the doctor who conducted autopsy on the dead body of the deceased and found the following ante-mortem external injuries: “1. A lacerated injury of 2” x 1/8” x skin deep present on the left side of the forehead. 2. A lacerated injury of 1” x 1/8” x bone deep present on the right side of the occipital region. 3. Fracture of left upper arm. 4. Contusions of various sizes and shapes present on the right forearm, right hand dorsal aspect, left side of chest, right thigh, on the right leg. 5. Abrasions present on the right upper arm and left hip, back of chest and on the left side back.” On internal examination, he found the skull bones fractured on on the right side of occipital region, measuring 1” lineor in shape, brain congested; extra jural haemorrhage was present. The cause of the death as spoken to, by the doctor was due to the injuries to the vital organs like brain, spleen and haemorrhage and shock. He issued Ex.P.27 post-mortem certificate. The time of death would be 12 to 18 hours prior to his post-mortem examination, which was assessed basing on the rigor mortis. The sustaining of injuries by the deceased as spoken to, by the doctor is not seriously disputed by the accused. The accused are only disputing that the incident has not taken place at the time and place and in the manner as stated by the prosecution witnesses. However, the medical evidence leaves no room to doubt that the death of the deceased is homicidal. 13. The case of the prosecution is that on 27.1.2002, P.W.1 and