HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal No.186 OF 2006 DATED: 11.08.2011 BETWEEN: Mallika Yellaiah and others .. Appellants And The State of A.P. Rep.by Public Prosecutor .. Respondent HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO.186 OF 2006 JUDGMENT: This criminal appeal arises out of the judgment dated 20.07.2006 passed by the Principal Sessions Judge, Medak at Sangareddy in Sessions Case No.261 of 1998. 2. I have heard Smt C.Vasundara Reddy, learned counsel appearing for the appellants and the learned Additional Public Prosecutor representing the State. 3. In all 11 accused were put up for trial before the learned Sessions Judge on the charges of committing offences punishable under Sections 147, 148, 302, 307 and 324 read with 149 IPC. After the trial, the learned Sessions Judge convicted A.1, A5 and A7 (appellants herein) for the offences punishable under Section 304 Part II of IPC and acquitted them of the remaining charges. He, however, acquitted the remaining accused for all the charges. The appellants were sentenced to undergo rigorous imprisonment for a period of five years each besides paying fine of Rs.2000/-. 4. The prosecution story is that on 13.03.1997 all the accused formed themselves into unlawful assembly armed with deadly weapons like knives, axes and sticks in or about 02.30 hours and caused death of Velchala Ranga Reddy in the land in Survey No.136 of Gangaram Village and also attempted to cause death of PWs.2, 5, 6 and 20, who are close relatives of the deceased. 5. PWs.1 and 6 are the sons of PW.4. PW.5 is sister-in-law and PW.20 is the wife of the deceased. 6. The deceased, a malipatel of the village was a landlord owning Ac.50.00 of land. The accused are harijans of Gangaram Village. There existed a dispute between the deceased and the accused with regard to the possession of part of land in Survey No.136 of Gangaram Village. 7. It is said that on the date of incident i.e. on 13.03.1997 at about 12.30 hours while the deceased along with PWs.1 to 11 was in the disputed land attending to agricultural work, the accused came up on the land with knives, axes and sticks and they all beat PW.2. On that the deceased questioned them as to why they were beating PW.2. Then A.1 beat the deceased on his head with stick, when he fell down, A1 hacked on his right leg and A7 hacked him on the backside of the neck. When PW.5, 6 and 20 intervened, they were also beaten. 8. After the incident, PW.1 went to Kondapur Police Station and lodged Ex.P.1 report. Basing on his report, a case in Crime No.28 of 1997 was registered at 2.00 PM on the same day by the S.I. of Police. He issued FIR, conducted part of the investigation. PW.28- Inspector of Police took up further investigation. On completing the investigation, charge sheet was laid against 11 accused. 9. After committal of the case by the Magistrate concerned, the case came to be tried by the learned Sessions Judge before whom the prosecution in order to establish the guilt of the accused, examined PWs.1 to 28, marked Exs.P.1 to P.34 and MOs1 to 8. No witnesses were examined on behalf of the defence, but Exs.D-1 to D- 10 were marked. 10. Upon considering the entire evidence on record, the learned Sessions Judge convicted the appellants i.e. A.1, A.5 and A7 for the offences punishable under Section 304 Part II IPC and sentenced them to punishment as mentioned above. 11. The point for determination in this appeal is whether there are any valid grounds to interfere with the order of conviction and sentence passed by the trial Court. 12. Smt. C.Vasundara Reddy, learned counsel appearing for the appellants contended that the appellants as well as the remaining accused are totally strangers to the prosecution witnesses, t he overtacts committed by them were not mentioned in the first information report, the evidence on record also shows that the witnesses had identified the appellants for the first time before the Court, in the absence of any test identification parade, the learned trial Court ought not to have convicted the appellants basing on the evidence relating to identifying the witnesses for the first time in the Court. 13. The leaned Additional Public Prosecutor on the other hand, contended that the overtacts spoken to by PW.s.1, 2, 4, 5, 6, 8, 10 and 20 before the trial Court are consistent insofar as the appellants are concerned, further, the overtacts corresponding to the injuries were also mentioned by the autopsy surgeon in the postmortem report and therefore, the conviction and sentence passed by the learned Sessions Judge against the appellants needs no interference. 14. I have perused the depositions of eyewitnesses carefully. PWs.1, 2, 4, 5 and 10 had categorically stated in their evidence that A.1 beat the deceased with stick on his head, when the deceased on receiving the bleeding injury on the head fell down, A5 axed the deceased on the backside of the neck and A7 hacked the deceased on the right leg with a knife. PWs.6, 8 and 20 though spoke about A1 beating the deceased with stick on the head stated in their depositions that A5 and A7 beat the deceased with axes and knife. Except this small discrepancy in the evidence of Pws.6, 8 and 20, the evidence of the remaining witnesses referred to above is consistent. Insofar as the overtacts spoken to against the appellants before the learned Sessions Judge are concerned, the evidence of PW.24 autopsy surgeon and Ex.P.19-postmortem report issued by him reveal the following injuries: “1. Body is lyingsupine dried grass present on the neck and ears. 2. Blood stains and bleeding from both ears and nose. 3. 2” Horizontal inicised wound on the back of the head which quarterinch deep. 4. One inch by one quarter inch incised wound on left leg. 5. clotted blood on the left side of the chest i.e. 5th and 6th intercostals spaces. 6. contusion on the left parital and right frontal areas. According to PW.24-autopsy surgeon, the injuries are ante mortem in nature. The injuries found on the person of the deceased are corresponding to the overtacts committed by the appellants. As regards the contention of not mentioning the overtacts committed by the appellants and the remaining accused in the first information report, I would like to state that it is always not necessary to mention the overtacts in the first information report. PW.1 broadly stated about the commission of offence by the accused. Non-mentioning of overtacts in the first information, is of no consequence. 15. In so far as identifying the accused for the first time in the Court, I would like to state that the evidence given by the witnesses before the Court is substantive piece of evidence and the evidence given during the test identification parade is only a corroborative piece of evidence. It is not necessary in each and every case that the investigating officer has to conduct the test identification parade. In the absence of test identification parade, the evidence of eyewitnesses given before the Court does not become undependable. In the instant case, the incident occurred in broad day- light and while the accused as well as the prosecution party were working in their respective fields. Therefore, it can be safely inferred that the eyewitnesses had sufficient opportunity to see the accused persons and it was not difficult for them to identify them before the Court. Therefore, merely because the test identification parade was not conducted, the evidence of eyewitnesses in this case cannot be brushed aside. 16. Another important contention urged by the learned counsel appearing for the appellants is that they acted in exercise of right of private defence and the learned trial court erred in convicting them for the offence punishable under Section 304 Part II IPC. It is in the evidence of the Investigating Officer that prior to the incident, the appellants and other persons approached him and stated to him about the land dispute between them and the deceased and they had also informed him that the accused were interfering with their possession forcibly. When the appellants sought the help of the police to protect their possession from the hands of the deceased, it is not open for them to take the law into their hands. Therefore, obviously, the accused had not acted in exercise of right of private defence and it is an attack made by the accused party unilaterally against the deceased and his people. 17. There is enough and satisfactory evidence in the instant case about the commission of the offence by the appellants. The learned trial Court convicted only the appellants basing on the overtacts committed by them and acquitted the remaining accused. The learned trial Court further considering the fact that the incident occurred during the course of quarrel and it was not pre-meditated, convicted the appellants for the offence punishable under Section 304 Part II IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.2,000/-. The sentence passed by the learned trial Court also cannot be said to be disproportionate to the offence committed by the appellants and that the quantum of sentence also cannot be interfered in this appeal. 18. In the result, the Criminal Appeal is dismissed, confirming the conviction and sentence passed against the appellants by the Principal Sessions Judge, Medak at Sanga Reddy in Sessions Case No.261 of 1998. _________________ Date: 11.08.2011 R. KANTHA RAO, J kvrm HON’BLE MR JUSTICE R. KANTHA RAO Criminal Appeal NO.186 OF 2006 DATE: 11.08.2011