IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) This the 13th day of December, Two Thousand and Eleven PRESENT HON'BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.237 of 2008 Between: J.Ramana and another … Appellant And The State of A.P., rep. by its Public Prosecutor … Respondent This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.237 of 2008 JUDGMENT: (per the Hon’ble Sri Justice R.Kantha Rao) The appellants were convicted by the learned II Additional District and Sessions Judge, (Fast Track Court), Srikakulam in Sessions Case No.95 of 2005, dated 18.01.2007, for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/- each. Challenging the said order of conviction and sentence, the appellants preferred the criminal appeal. 2. The case of the prosecution in brief, is stated as follows:- A1 is the son of A2. The deceased is the relative. The houses of the appellants and the deceased are situated adjacent to each other in Kallepalli street of Voppangi village of Srikakulam district. The house of the appellants is situated on the eastern side of the house of the deceased. The house of the appellants is adjoining the house of the deceased and keeping in view that the deceased was always away from the village and was in the habit of visiting Katak in the state of Orissa to eak out his livelihood, the appellants wanted to purchase the house. Then the appellants expressed their desire to purchase the house. The deceased declined to sell the house to them and on that the appellants developed grouse against the deceased. While so, five days prior to 12.09.2004, the appellants placed their washed clothes on the wall of the house of the deceased for which the deceased raised objection. On the said issue there was an altercation between the deceased and the appellants during the course of which it is stated that the appellant openly proclaimed that they would see the end of the deceased. That on 12.09.2004 at about 08:00 PM, the deceased started scolding somebody in filthy language referring to the sale of his house. The appellants, who overheard the abuses of the deceased, questioned him and entered into an altercation on account of their previous grudge with him. Then it is stated that both the appellants attacked the deceased with crowbar and a stick and caused injuries. A1 poked the deceased and beat him with M.O.1 crow bar on the middle of the head and left hand. A2 beat him with a stick on his shoulder and caused injuries. On receiving the injuries deceased fell down in front of the house of P.W.3 and within short time thereafter the deceased succumbed to the injuries. P.Ws.2 and 3 to 5 witnessed the incident. L.W.7 a neighbour having came to know about the incident lifted the deceased to his house and placed him on a cot. P.W.12, R.M.P. Doctor of the village, examined the deceased and declared him dead. Subsequently, P.W.8 the village servant who came to know about the offence informed the same to P.W.1 the village secretary. P.W.1 prepared Ex.P1 report to the narration of P.W.2 the mother of the deceased and submitted the same in Srikakulam Rural Police Station. On the strength of the said report P.W.14 the Sub-Inspector of police registered a case in crime No.2 of 2004 under Section 320 r/w 34 IPC. P.W.15, the Inspector of police, investigated into the offence and on completing the investigation filed charge sheet. 3. In the course of trial before the learned Sessions Judge, the prosecution in order to establish the guilt of the accused examined P.Ws.1 to 15, marked Exs.P1 to P34 and M.Os.1 to 5. On closer of the evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence adduced by the prosecution, for which the accused denied the same and not opted to examine any witness on his behalf, but marked Exs.D1 and D2. 4. Learned trial court upon considering the entire evidence on record convicted the appellants for the offence under Section 302 IPC simplicitor and sentenced them to punishment as mentioned above. P.Ws.3 to 5 who are said to be the direct witnesses to the occurrence did not support the case of the prosecution. PWs.7 to 9, who are said to be the elders of the village and before whom dispute between the appellants and the deceased was allegedly placed for decision, also did not support the case of the prosecution. Thus, the entire case rested on the evidence of P.W.2, who is the mother of the deceased, claimed to be the one of the eyewitnesses in this case and P.W.6 the wife of the deceased who spoke about the circumstances leading to the incident. The learned trial court however placing reliance on the evidence of P.Ws.2 and 6 convicted the appellants for the offence under Section 302 IPC. 5. Now the point for determination in this appeal before us is as to whether the conviction and sentence passed by the trial court against the appellants can be sustained or not? 6. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants would submit that since all the independent eye witnesses turned hostile, it is quiet unsafe to convict the appellants basing on the sole testimony of P.W.2, who is no other than the mother of the deceased. In the alternative the learned counsel would submit that the fatal injuries said to have been caused to the deceased were only attributed to the 1st appellant and the injury attributed to A1 was supposed to have been caused with a crow bar whereas a superficial injury on the shoulder of the deceased was attributed to A2, who is the father of A1, and the said injury was supposed to have been caused with a stick. The conviction of the appellants being for the offence under Section 302 IPC simplicitor, the conviction of the 2nd appellant in the circumstances may be entitled to be struck down. 7. On the other hand, learned Additional public prosecutor representing the State would contend that both the appellants developed grouse against the deceased owing to the dispute relating to purchase of the house and, therefore, both of them were rightly convicted by the learned trial court for the offence under Section 302 IPC and according to the learned Public Prosecutor the conviction and sentence passed by the trial court need no interference. 8. Now the point for consideration is whether the prosecution established the guilt of the accused beyond reasonable doubt? P O I N T :- 9. Though P.Ws.3 to 5 and P.Ws.9 to 11 did not support any part of the prosecution case including the motive part of the commission of offence, there is the evidence of P.Ws.2 and 6 as to the disputes between the appellants and the deceased in relation to the purchase of the house of the deceased which was proposed by the appellants. They also spoke about the quarrel between the deceased and the appellants during the course of which the appellants threatened the deceased with dire consequences. However, since the conviction of the appellants is for the offence under Section 302 IPC simplicitor, the criminality of the appellants has to be decided basing on the overtacts committed by them. 10. Learned trial court did not specifically held that both the appellants intentionally or knowingly caused the death of the deceased with a prior concert to kill him. The conviction recorded is for the offence under Section 302 IPC simplicitor. From the evidence forthcoming in the case, it is found that by the overtacts committed by him the 2nd accused did not intend or know that by his act he was going to cause the death of the deceased. He could not certainly be convicted for the offence under Section 302 IPC simplicitor and he could be made criminally responsible for the overtacts committed by him. 11. Further, the crucial aspect requires consideration in this appeal is whether when all the independent direct witnesses to the occurrence turned hostile to the prosecution a conviction can be based on the evidence of P.W.2, who is no other than the mother of the deceased. As to this view we may state that the law is well settled that if the evidence of a solitary witness is trustworthy and inspires confidence of the court and if the presence of the said witness at the venue of the offence is found to be normal, the court can rely on the evidence of solitary witness to record the conviction against the accused. 12. In the instant case, P.W.2 the mother of the deceased, stated in her deposition before the trial court that on the date of incident at about 07:30 PM while she was staying in front of their house, the deceased came to the house and she asked the deceased to have dinner and when both of them were about to go inside the house, A1 suddenly came to the deceased and beat him on his head with a crow bar and thereafter A2 also came and joined A1, beat the deceased with a stick on his shoulder and thereafter again A1 beat the deceased on his head with the crowbar. She further deposed that on receiving the said injuries, the deceased fell on the ground in front of the house of P.W.3 and thereafter A1 and A2 fled away from the place of occurrence carrying the weapons. She also spoke about the neighbours witnessing the incident and stated that nobody came forward to rescue the deceased while the incident was going on. She further deposed that she went into the village and approached the village elders including P.W.1 but nobody responded and that subsequently, the deceased was brought in front of their house and at about 10:00 PM P.W.12 the R.M.P.Doctor came and examined the deceased and declared him dead. 13. The said evidence of P.W.2 inspires confidence and is of highly reliable character. Her presence at the venue of offence is quiet normal and she can be considered to be a natural witness. Her testimony cannot be doubted on the mere ground that she is a solitary witness who spoke of the incident and no other than the mother of the deceased. She was subjected to lengthy cross examination. But her evidence on material particulars remained unshattered. The learned trial court, therefore, rightly placed reliance on the evidence of P.W.2. 14. The important question, however, is whether the trial court is justified in convicting the 2nd appellant (A2) for the offence under Section 302 IPC Simplicitor along with A1 without specifically recording a finding that both the appellants caused the death of the deceased with a common intention to kill him. Even perusal of the evidence of P.W.2, the solitary eyewitness also does not show that A1 and A2 came together to attack the deceased. Her evidence reveals that in the fist instance A1 suddenly came arming with a crow bar and attacked the deceased by causing injury on the head with the crow bar. Thereafter she stated that A2 also joined him and A2 beat the deceased with a stick on the shoulder. 15. P.W.13, the autopsy surgeon, who conducted autopsy over the body of the deceased stated in her evidence that she found the following external ante mortem injuries: 1. A lacerated injury on the right side of temporal area of skull measuring 3” X ½” X ½” clotted blood present. 2. Fractures deformity of lt fore-arm upper 1/3rd an abrasion over it measuring 1” X ½”. 3. An abrasion on left shoulder 1” X 1” reddish brown in colour. 4. An abrasion over right arm ½” X 1/2 “ reddish brown in colour. 5. An abrasion over left ankle 1/2 “ X 1/2 “. Further, on internal examination of the skull, it is observed that depressed fracture of right parietal bone present; brain matter and manning as congested; a blood clot about 100 cc present on right parietal lobe. 16. Out of the injuries, injury Nos.1 and 2 were attributed to A1 and they were said to be caused with a crow bar. The third injury though was attributed to A2, P.W.2 stated in her chief examination before the trial court that the said injury was caused by A2. Whereas in the cross-examination she stated that A1 beat the deceased on the shoulder with crow bar from a side. Thus, there is discrepancy in the evidence of P.W.2 as to the injury attributed to A2. Since only one injury is attributed to A2, and the evidence of P.W.2, the only eyewitness, is at variance as to the causing of the said injury, in our view A2 is entitled for benefit of doubt. Since the evidence in relation to causing injuries by A1 with crow bar are consistent and the said injuries correspond to the injuries noted by the autopsy surgeon, the learned trial court rightly convicted A1 for the offence under Section 302 IPC. 17. For the aforementioned reasons, the conviction and sentence passed by the trial court against A2 is set aside. The conviction and sentence imposed by the trial court against A1 for the offence under Section 302 IPC is confirmed. 18. In the result, the conviction and sentence recorded by the II Additional District & Sessions Judge, Fast Track Court, Srikakulam vide judgment, dated 18.01.2008, in Sessions case No.95 of 2005, against the 2nd appellant/A2 fo rthe offence punishable under Section 302 of IPC is set aside. However, the conviction and sentence recorded against the 1st appellant/A1 by the court below for the offence punishable under Section 302 of IPC is hereby confirmed. A2 is set at liberty forthwith, if he is not required in any other case. The fine amount paid by A2, if any, shall be refunded. The appeal is partly allowed to the extent indicated above. ___________________ A. GOPAL REDDY, J __________________ R. KANTHA RAO, J 13.12.2011 LMV HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL No.237 of 2008 13.12.2011 lmv