HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.888 OF 2007 Date: 10-8-2009 Between 1. Shaik China Abdul Nabi and 3 others … Appellants/accused 1 to 4 and State of Andhra Pradesh, Rep. by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad … Respondent/Complainant HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.888 of 2007 Judgment: (per R.Kantha Rao, J.) This appeal is filed by accused 1 to 4 in Sessions Case No.670 of 1999 on the file of the VIII Additional Sessions Judge (Fast Track Court.), Guntur, challenging the order of conviction and sentence passed against them in the said case. 2. The case of prosecution, in brief, is as under: The accused and the material witnesses are closely related, belong to Muslim community; and they are residents of Ganikapudi Village. There are two groups in the village, one group is headed by accused No.11 and the other group by P.W.9. There is a mosque in the village; and as a source of income to the mosque, Rs.70/- from every Muslim family and Rs.1/- per quintal for cotton produce was collected from Muslim farmer; and further, the job of cooking utensils of the mosque was also given on hire charging Rs.150/- per day. This was managed by accused No.11. Subsequently, accused No.11 enhanced the amount from Rs.70/- to Rs.100/-. On that, one Shaik Khaji Bude @ Hassan Khaji (hereinafter referred to as ‘the deceased’) questioned accused No.11 to account for the amounts collected before enhancing the charges. In that connection, there was an altercation between them; P.W.2 and others separated them and then accused No.11 threatened him that he would see his end. That in the month of February, 1998 accused No.8 peeped into the house of P.W.6 and saw the daughter-in-law of P.W.6 taking bath; on that, a report was lodged against accused No.8; where upon, accused No.8 also got lodged a report through his wife against the son of P.W.6, by name Khayyum, but the said case was referred as false. That on 07-5-1998 Peerlu Procession was taken out; and while the procession was going on towards “Gilaka Bavi” on the way near the house of Munsif, accused No.5 questioned P.W.8 as to why he was looking at him seriously and so saying accused No.5 kicked him on his abdomen, further he was attacked by accused 6, 9 and 10; that on seeing the same, P.W.4 questioned the accused. On that he was also beaten. P.Ws.1 to 3 were present there. Thereafter while P.Ws.4 and 8 were going towards police station to lodge a report they saw accused 1 to 4 beating the deceased indiscriminately near Jhanda Chettu, accused No.2 was armed with an axe, whereas accused No.3 was armed with pounder and accused No.2 beat the deceased with an axe on his right hand and accused No.3 beat the deceased on his head and when P.W.2 went to rescue him, accused No.5 beat him on his head with an axe and accused No.4 with a stick, that accused No.8 pierced on the back of his right shoulder, that accused No.12 tried to hack him but the axe fell on the left ear and he sustained injuries and other accused joined and they also indiscriminately beat them and when P.Ws.2 and 3 went to rescue P.W.1, accused No.21 beat him at the middle of his head with an axe and ran away from the scene and when one Shaik Khadar Masthan (L.W.5) went to the rescue, accused No.5 beat him with an axe on his head and accused No.3 beat him with a pounder over on his head and accused No.18 axed him which fell on his right thumb and the remaining accused who were armed with sticks beat him indiscriminately; that when one Badar Dariyabee (L.W.6) went to the rescue of P.W.1, accused 1 to 4 beat her and caused injuries and at the instigation of accused 23 and 24, accused No.5 attacked P.W.5 to kill him and accused No.7 axed on the head of P.W.5 and accused No.14 attacked with a spear and caused injuryon his back; that accused No.11 beat P.W.6 with a stick on the right side of the head; that accused 19 and 15 also beat with a stick and iron rod, respectively, on his head; that accused No.13 also beat one Shaik Khadar Masthan (L.W.5), that accused 18, 16 and 15 attacked the said Khadar Masthan (L.W.5) with axe stick and iron rod, respectively; that accused 5, 6, 9 and 10 beat one Bandar Galeeb (L.W.10) with sticks and inflicted injuries; that accused No.22 hurled stone and caused injury and accused No.20 axed the said Galeeb (L.W.10) on his foot and when P.Ws.9 and 10 came there to rescue, accused 4 and 21 tried to beat them and due to fear they ran away and when one Bandar Galeebbee and Bandar Mahaboobbee (L.Ws.14 and 15) went to rescue the deceased, accused 1 to 5 chased them; that assuming the deceased died on the spot, all the accused ran away from that place and all the injured were shifted to Prathipadu Police Station on a tractor and the Police recorded the statement of P.W.1 and referred the injured to the Government Hospital; that the deceased was unconscious and subsequently died at the hospital. That on 08-5-1998 at about 7.45 p.m., P.W.1 and other injured rushed to Prathipadu Police Station and while P.W.15 the then Sub Inspector of Police was recording the statement of P.W.1, the other group injured person (accused No.5) also reached the police station; that then he recorded both the statements and registered cases in Crime Nos.66 and 67 of 1998, respectively, and issued FIRs; that on the same day at about 9 a.m., on receiving death intimation, Section of law was altered and altered FIR Ex.P-15 was issued and that after completion of all the formalities, P.W.16 the then Inspector of Police, Guntur Taluk Circle filed the charge-sheet. 3. Charges -- under Section 148 IPC against accused 1 to 24; under Section 302 IPC against accused 1 to 4; under Section 302 read with Section 149 IPC against accused 5 to 24; and under Section 307 read with Section 149 IPC against accused 1 to 24 were framed, read over and explained to them in Telugu for which, they pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution has examined P.Ws.1 to 16 and got marked Exs.P-1 to P-15 and also M.Os.1 to 6. On behalf of the defence, no witnesses were examined but the relevant portions in the statements of material witnesses recorded by the Police under Section 161 Cr.P.C., and relevant entries relating to some of the material witnesses in the Accident Register, wound certificates of some of the accused persons, etc., were marked as Exs.D-1 to D-34. 5. The trial Court by its judgment, dated 21-6-2007, having arrived at the conclusion that there was a free fight between both the groups, acquitted accused 5 to 24 of all the charges, holding that the specific overt acts attributed to them have not been proved by the prosecution, but convicted accused 1 to 4 for the offence under Section 302 IPC simplicitor and sentenced each one of them to suffer imprisonment for life. 6. Challenging the said order of conviction and sentence, the appellants (accused 1 to 4) have preferred the present appeal. 7. Since the trial Court gave a specific finding that there was a free fight between both the parties and in consequence thereof, holding that none of the accused were liable for punishment for the offences alleged either with the aid of Section 149 IPC or Section 34 IPC and that the accused are only liable to their individual overt acts and also holding that so far as accused 5 to 24, no overt acts attributed to them by the prosecution have not been proved and acquitted them of the said offences and there being no appeal filed against them by the State against the order of acquittal recorded by the trial Court against the accused, we are only concerned with the conviction and sentence passed against the appellants-accused 1 to 4 for the offence under Section 302 IPC simplicitor. 8. The trial Court convicted the appellants on reaching a conclusion that accused 1 to 4 caused the death of deceased by beating him with different weapons and in respect of the said incident, the trial Court believed the version of eyewitnesses Pws.1 to 3 and 10. 9. Further, the trial Court having tried the counter case S.C.No.187 of 1999, which came to be filed basing on the report given by the accused party, along with the present case under appeal, acquitted the accused therein, some of whom are eyewitnesses in the present case, of the charges levelled against them on the ground that the version of the prosecution (is one sided) therein with regard to the overt acts is inconsistent and also is discrepant and also not consistent with the medical evidence. Against the said order of acquittal also, the State did not prefer any appeal. 10. We have heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri A.Rajendra Babu, learned Counsel appearing for the appellants-accused 1 to 4 and the learned Public Prosecutor appearing for the respondent-State. 11. The learned Senior Counsel would submit that the trial Court which disbelieved the version of injured witnesses PWs.1 to 8 in respect of the injuries caused by the accused persons, ought not to have placed reliance on their evidence insofar as the alleged attack by accused 1 to 4 on the deceased. He would further submit that the evidence of the eyewitnesses with regard to the attack on the deceased is also at variance insofar as the overt acts attributed to the appellants and the said evidence also totally inconsistent with the medical evidence and thus, according to the learned Senior Counsel, the conviction and sentence passed against the appellants is liable to be set aside in this appeal. 12. On the other hand, the learned Public Prosecutor would contend that the eyewitnesses have spoken to the fact of the appellants attacking the deceased with different weapons and therefore, the trial Court rightly recorded the conviction against them for the offence punishable under section 302 IPC and sentenced them to punishment and the said finding of the trial Court needs no interference in this appeal. 13. In view of the above rival contentions, now the point that arises for consideration in this appeal is as to whether the prosecution had proved the guilt of accused 1to 4 beyond all reasonable doubt ? 14. Point :- In the first place, it has to be seen that as to what are the injuries sustained by the deceased and the cause of his death? 15. P.W.13, Professor in Department of Forensic Medicine, Guntur Medical College, Guntur, at relevant time, stated in his evidence that on the requisition from the Inspector of Police, Guntur Rural, he conducted autopsy over the body of the deceased and found the following ante-mortem external and internal injuries: (1) Obliquely placed laceration of 5 x 1 cms x skull cavity deep present on the centre of occipital region at its upper part; (2) Obliquely placed laceration 3 x 1 cms x skull cavity deep present 2 cms lateral t the injury No.1 towards right side; (3) Contusion 6 x 4 cms present on the back of middle 1/3rd of right arm; (4) Abrasion 3 x 1 cms present on the back of right elbow; (5) Abrasion 3 x 2 cms present on the back of left elbow; (6) Subscapular contusion 21 x 18 cms present on the both sides temporal, parietal and occipital region; (7) Depressed commurited fracture of both sides temporal and occipital and posterior cranial fossa of base of skull; and (8) Subdural and subarchnoid haemorrhage present all over the brain. 16. According to P.W.13, the cause of death of the deceased was due to head injury and he issued Ex.P-4, post-mortem certificate, incorporating the above mentioned injuries and his opinion as to the cause of death of the deceased as the head injury. 17. According to the prosecution, the attack against the deceased by the appellants is like this: While, P.W.1 and others were taking the injured to Prathipadu Police Station on a tractor, on the way they suddenly noticed the appellants attacking the deceased at Janda Chettu center near peerla gundam. It is said that accused 1 to 4 beat the deceased indiscriminately. Accused No.2 was armed with an axe, accused No.3 was armed with a pounder, accused No.2 beat the deceased with an axe on his right hand and accused No.3 beat the deceased on his head and when P.W.1 and other eyewitnesses tried to rescue the deceased, they were also beaten by the appellants and other accused. 18. Coming to the evidence before the trial Court, P.W.1 stated that while he and the other injured started to reach the center for securing a tractor in order to lodge a report in Prathipadu Police Station and when they reached Janda Chettu, they saw accused 1 to 4 beating the deceased. When he (P.W.1) intervened and tried to shift the deceased, accused No.1 beat him with a battle-axe on his head, accused No.2 hit on his right hand on the back side of the palm with the stick portion of the axe. He also spoke about the other witnesses receiving injuries in the hands of the appellants and other accused. 19. Previously, this witness did not speak about the overt acts committed by the appellants in his examination-in-chief. He stated in the cross-examination that accused 1 to 4 beat him with some weapons with which they have attacked the deceased. 20. P.W.2 stated in his deposition before the trial Court that while they were proceeding to lodge a report, they saw accused 1 to 4 beating the deceased, when P.W.1 interfered accused 1 to 4 also attacked him. When he (P.W.2) questioned the appellants as to why they were beating P.W.1, accused No.5 came upon him and hacked him on his hands with an axe. This witness also did not speak about the overt acts committed by the appellants. 21. Whereas, P.W.3 stated in his evidence that while they reached the center in search of a tractor with a view to go to the police station, he found the deceased lying on the ground and accused 1 to 4 beating him. He stated that accused No.1 was armed with a battle-axe, accused No.2 was armed with an axe, accused No.3 was armed with a chutney-ponder and accused No.4 was armed with a stick and they were attacking the deceased. He further deposed that when P.W.1 tried to rescue the deceased, the appellants caused injuries to P.W.1 with the same weapons with which they have attacked the deceased. 22. Similarly, P.W.10, who is none other than the brother of the deceased, stated in his deposition that while he and the other witnesses were proceeding towards the center, they found accused 1 to 4 attacking the deceased and he further stated that accused 1 to 4 also attacked P.Ws.1, 2, 6 and one Shaik Khadar Masthan (L.W.5). He further deposed that when he went near the deceased, accused No.21 came upon him to beat him, then he moved 10 yards away and stood there and thereafter, the entire group went away shouting that Khazi Bude (deceased) died. Thus, P.W.10, the brother of the deceased, also did not specify the overt acts committed by the appellants even though according to him, he saw the attack on the deceased along with P.Ws.1 to 3. 23. The evidence of the doctor (P.W.13), who conducted post-mortem examination over the body of the deceased, shows that the deceased died of head injury. If really the deceased was attacked with an axe and battle-axe, certainly there would have been incised injuries on the person of the deceased. But, except two lacerations, a contusion and two abrasions, no incised wound was noticed by him. The injuries noticed by us in the foregoing paragraph while referring the evidence of P.W.13, do not correspond to the overt acts ascribed by the prosecution to the appellants. Further, P.Ws.1 to 3 and 10 in their examinations- in-chief did not speak about the overt acts committed by the appellants. The very version of the prosecution that the attack on the deceased is a sequel to the earlier incident occurred while P.W.1 and other injured witnesses were proceeding to lodge a report in the police station and while they were so proceeding, they noticed the same near Janda Chettu center creates any amount of doubt regarding the truthfulness of the version of the prosecution in view of the fact that the trial Court gave a categorical finding that all the persons received injuries in a free fight between both the rival groups. In our view, the trial Court, having arrived at the conclusion that the injured in both the cases received injuries in a free fight, ought not to have placed reliance on the evidence of P.Ws.1 to 3 and 10. Further, the version of P.Ws.1 to 3 and 10 regarding the manner in which the incident said to have taken place and the participation of the appellants individually, is at variance and their evidence is inconsistent with the medical evidence. Their evidence, if taken as a whole, does not enable the Court to fasten liability on any of the appellants for the offence under Section 302 IPC. 24. It is the evidence of P.W.15, Sub Inspector of Police, who registered the FIRs in both the cases, that while he was recording the statement of the injured person (P.W.1) in the present case, the injured person, by name Shaik Khadar (accused No.5), of the opposite group, was brought to the police station on a tractor and after recording the statement of P.W.1, he also recorded the statement of Shaik Daria and basing on both the statements, he registered Crime Nos.66 and 67 of 1998 of Pathipadu Police Station. He also admitted in the Court in the cross-examination that both the cases were -- case and counter and the time of offence mentioned in both the FIRs is 6 p.m., and he also admitted that P.W.5 is accused No.1 in the counter case in S.C.No.187 of 1999. P.W.3 figuring as accused No.2 in that case, P.W.4 figuring as accused No.3 in that case. P.W.8 figuring as accused No.4 in that case. P.W.7 figuring as accused No.5 in that case. P.W.6 figuring as accused No.6 in that case. P.W.2 figuring as accused No.7 in that case. 25. P.W.16, Inspector of Police, also admitted in the cross- examination that the case, which is the subject matter of Crime No.66 of 1998 of Pathipadu Police Station and the case in Crime No.67 of 1998 of the same police station are -- case and counter, and he also admitted that some of the witnesses in the present case are accused in the other case. 26. Upon perusing the depositions of the witnesses and the findings recorded by the trial Court, we have noticed that the trial Court arrived at a positive finding that insofar as the injuries said to have been received by the injured in the present case as well as the injured in the counter case, have not been proved by the prosecution in view of the fact that the version of the injured eyewitnesses is totally inconsistent and highly discrepant and the same has also not been tallying with the medical evidence forthcoming in both the cases. 27. The trial Court further recorded a finding insofar as the attack on the deceased in the present case is concerned, that all the witnesses without exception have stated that the deceased sustained injuries in the hands of accused 1 to 4 with deadly weapons like axe, sticks etc. The trial Court also agreed that the post-mortem certificate did not indicate the injuries supposed to have been caused with an axe, but expressed the view that when a person was given repeated blows on the head and sustained too many injuries on the same part, the dimension of the injuries sustained in the first instance may not be identical, and shape and size will get changed. Thus, the trial Court was also unable to arrive at the finding that the account of eyewitnesses viz., P.Ws.1 to 3 and 10 is consistent and in tune with the medical evidence. However, taking into consideration the mere sweeping statements made by P.Ws.1 to 3 and 10, which is to the effect that accused 1 to 4 attacked the deceased, the learned trial Court arrived at the conclusion that the prosecution proved the guilt of the appellants for the offence under Section 302 IPC simplicitor. 28. The trial Court having disbelieved the version of P.Ws.1 to 3 in respect of the attack committed on them and the injuries caused to them by the respective accused, erroneously placed reliance on the evidence insofar as the attack on the deceased is concerned though it is highly discrepant and lacking in details. The trial Court, which disbelieved several overt acts spoken to by injured witnesses and the other eyewitnesses in both the cases, in order to record a conviction against the appellants for the offence under section 302 IPC must assign highly convincing reasons justifying its decision in believing the evidence of P.Ws.1 to 3 and 10 in the abovementioned circumstances. The trial Court without assigning any cogent reasons recorded the conviction against the appellants, as mentioned above. Since, in both the cases, the witnesses being admittedly inimical as well as interested, the trial Court ought to have acted with great care and circumspection before acting on the evidence of P.Ws.1 to 3 and 10. But, the trial Court failed to exercise the required care and caution. Therefore, in our considered view, the evidence on record does not justify conviction of the appellants for the offence under Section 302 IPC and the same was recorded by the trial Court without there being any reliable evidence. 29. In the result, this criminal appeal is allowed and the conviction and sentence recorded by the VIII Additional Sessions Judge (Fast Track Court), Guntur against the appellants-accused 1 to 4 is liable to be set aside and accordingly set aside. Accused 1 to 4 are acquitted of the offence under Section 302 IPC and they are directed to be set at liberty forthwith, if they are not required in any other case. ________________________ JUSTICE D.S.R.VARMA ___________________________ JUSTICE R. KANTHA RAO 10th August, 2009. MD/AK HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.888 of 2007 (Judgment of the Division Bench delivered by RKR, J.) 10th August, 2009.