HON’BLE SRI JUSTICE K.C. BHANU AND HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO Crl.A.No. 912 of 2007 DATE: 30-12-2010 Between: Kannemadugu Gopal @ Gopi and another ….. Petitioners and The State of A.P. …….. Respondent HON’BLE SRI JUSTICE K.C. BHANU AND HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO Crl.A.No. 912 of 2007 JUDGMENT: (Per Hon’ble Sri Justice N.R.L. Nageswara Rao) This Criminal Appeal is filed by the Accused-A1 and A2 challenging the convictions and the sentences imposed on them by the judgment, dated 10-07-2007 in Sessions Case No.378 of 2005 on the file of the VII Additional District and Sessions Judge (FTC), Madanapalle, Chittoor District. The appellants-A1 and A2 were convicted for the offence under Section 302 of IPC and 302 read with 34 of IPC respectively and were sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for three months each. They were also convicted for the offence under Section 324 and 324 read with 34 of IPC respectively and were sentenced to undergo rigorous imprisonment for a period of three months each. They were further convicted for the offence under Section 506(II) of IPC and were sentenced to undergo rigorous imprisonment for a period of three months each. 2. The case of the prosecution is that both the accused and another person by name K. Sriramulu, who was a juvenile, are all brothers and one Amaravathi (Deceased No.1) was their sister. She was married to one P.Sekhar (Deceased No.2). Sekhar (D-2) used to have illicit intimacy with another girl by name Syamalamma of Nayanabhavi and due to that, the accused have developed anger against him as he did not change his attitude and was not treating their sister properly. Sekhar (D-2) is said to have kept his wife with his mother (PW-1) at Madanapalle and was living with Syamalamma at Dharmavaram. On 03-01-2005, Sekhar (D-2) along with Syamalamma came to Madanapalle to the house of one Reddemma (PW-4) at Vijayanagar Colony and called his mother (PW-1) and his wife Amaravathi (D-1). The accused came to know about the arrival of Sekhar (D-2) and planned to attack him in accordance with their plan. On 04-01-2005 at about 8-00 PM, A-1 armed with a hunting sickle, accompanied by his other brothers, and went to the house of PW-1 and called Sekhar (D-2) and Amaravathi(D-1). The accused got enraged when Amaravathi(D-1) asked them to leave and in that transaction, A-1 is said to have hacked Amaravathi (D-1) and Sekhar (D-2) and caused injuries, due to which they died. A-2 and A-3 are also said to have encouraged A-1. PW-2 is also said to have received injuries when he tried to interfere in the incident. PWs.1, 2 and 4, who are the mother, brother-in-law and sister of the Sekhar (D-2) respectively, were present. All of them have witnessed the incident and on a complaint given by PW-1, a case in Crime No.2 of 2005 for the offence punishable under Section 302 read with 34 of IPC was registered and investigated into. During the course of investigation, the statements of the witnesses were recorded, the panchanama of the scene was conducted and the inquest was held over the dead bodies and the dead bodies were sent for postmortem examination. 3. The accused were arrested on 09-01-2005 and they gave voluntary confessional statement and in pursuance of the confession of A-1, M.Os.11 to 14 were seized. The accused were sent for remand and after receipt of the FSL report and postmortem report, the accused were charged for the offence under Section 302 read with 34 of IPC. The case was taken on file as P.R.C.No.37 of 2005 by the II Additional Judicial Magistrate of First Class, Madanapalle and the same was committed to the Court of Sessions. After the appearance of the Accused, charges under Sections 302, 324 and 506(II) of IPC were framed against A-1 and charges under Sections 302 read with 34, 324 and 506(II) of IPC were framed against A-2, read over and explained to them and they pleaded not guilty. 4. On behalf of the prosecution, PWs.1 to 16 were examined and Exs.P-1 to P-18 and M.Os.1 to 16 were marked. After the evidence of the prosecution is over, the accused were examined under Section 313 of Cr.P.C. and no defence evidence was adduced. After considering the evidence on record, the learned Sessions Judge found both the accused guilty of the offences and accordingly, convicted and sentenced them as stated above. Aggrieved by the said judgment, the present Appeal is filed. 5. Heard Sri D. Kodanda Rami Reddy, learned counsel for the accused and the learned Public Prosecutor. 6. The points that arise for consideration are: 1. Whether the prosecution has proved beyond reasonable doubt the guilt of the accused-A1 and A2 for committing the murder of Sekhar (D-2) and Amaravathi (D-1) with common intention? and 2. Whether the convictions and the sentences imposed by the learned Sessions Judge are legal and sustainable? 7. In support of the prosecution case, PW-1, who is the mother of Sekhar (D-2), deposed that Sekhar (D-2) was married with Amaravathi (D-1) of Malluruvandla palle. After marriage, the deceased persons stayed at Dharmavaram for four years and thereafter they came to Madanapalle about six months prior to the incident. The deceased persons were said to have stayed in the house of Ramanjulu (PW-2), and her son was said to be having illicit intimacy with one Syamalamma of Nayanibavi. Her son intended to go to Dharmavaram and asked her to stay at Madanapalle to look after his children. Accordingly, she came to Madanapalle on Tuesday at about 2-00 PM and stayed in the house of PW-2 and the incident happened on that day. At about 8-00 PM, herself, PWs.2 and 4 along with both the deceased persons were inside the house and at that time, the accused persons came there and called Amaravathi (D-1) to come along with the child stating that they will be going to Dharmavaram on the next day. They also proclaimed that in spite of several warnings, Sekhar (D-2) did not change his attitude and continued the illicit intimacy with Syamalamma. Then Amaravathi (D-1) replied to the accused that they will go to somewhere and leave them. PWs.2 and 4 also advised them to go away and they also took the accused by pushing upto the road. Then the accused proclaimed that they will kill Amaravathi (D-1) and accordingly, hacked Amaravathi (D-1) with the hunting sickle on the back side of her head due to which she fell down. In the meanwhile, Sekhar (D-2) came there and when he tried to interfere, he was pushed inside the house by all the accused and PW-2 also went inside. Then A-1 hacked Sekhar (D-2) with hunting sickle on the back side of the neck. It was stated that the other accused were holding Sekhar (D-2) and A-1 hacked him. When PW-2 intervened, A-1 hacked him on his right palm, right thumb and left side forehead causing injuries. Thereafter, the accused left proclaiming that they will kill anybody whoever comes and interferes. Then, at the instance of PW-3, she got a complaint, Ex.P-1, drafted and presented to the police. In the cross-examination, she stated that she has good eyesight and she was examined by the police three times and the complaint was prepared near the scene only. She does not know whether her son continued or discontinued the relationship with Syamalamma after his marriage. She also stated that there was a quarrel between Sekhar (D-2) with the brothers of Syamalamma with regard to the conduct of Sekhar (D-2). She came to Madanapalle only because she was called by her son. She stated that she does not know whether her son Sekhar (D-2) had illicit intimacy with number of ladies and has got other enemies. 8. The evidence of PWs.2 and 4 is almost corroborating with the evidence of PW-1 on material particulars about the conduct of Sekhar (D-2) and the incident on the date near the house of PW-2. PW-2 specifically stated that when he intervened, he was beaten with the axe on his palm. 9. PW-3 is said to be the witness who has helped PW-1 in drafting complaint, Ex.P-1. He did not support the prosecution case and was declared as hostile. 10. The evidence of PW-5 is that he is the landlord of PWs.2 and 4 and was residing in the upstairs portion and on the date of incident, he heard some cries stating that work is completed and observed two persons with blood stains and thereafter he became drowsy. He did not support the prosecution case about witnessing the incident and identifying the witnesses and was declared as hostile. 11. PW-6 deposed that on 04-01-2005 at about 8-00 or 8-15 PM, when he was at his house, he heard cries and observed Amaravathi (D-1) having fallen down with child and some water was given to her. There was galata in the house of PW-2 and after going to that place, he found A-1 coming out from the house with a hunting sickle and a gunny bag followed by A-2. On seeing that, he went to a side. He also claims to have seen Sekhar (D-2) inside the house. According to him, he saw A-1 and A-2 only on the date of incident in the light available there. 12. The evidence of PW-7 is about taking of the photographs at the scene of incident. 13. The evidence of PW-8 is about the presence at the time of inquest held over the dead body of the deceased persons and seizure of the property. He did not support the prosecution case in other material particulars and was declared as hostile. 14. The evidence of PW-9 is about the apprehension of the accused in his presence and the accused giving voluntary confessional statement, but he did not support the prosecution case and was declared as hostile. 15. The evidence of PW-10 is about the examination of A-2 on 10-01-2005 and finding simple injury. 16. The evidence of PW-11 is about conducting postmortem examination over the dead body of Sekhar (D-2) and finding the following injuries and issuing certificate, Ex.P-10, opining that the deceased (D-2) died due to injury to vital organs. External injuries: 1. An incised injury 14 cm x 3 cm x Bone deep, present on right occipital area obliquely situated. 2. An incised injury 6 cm x 2 cm x bone deep just above the injury No.1(3). 3. An incised injury 10 cm x 3 cm x bone deep over left fore arm in middle 1/3rd area. Anterior aspect. 4. An incised injury 6 cm x 2 cm x 3 cm over left side neck exposing muscles and vessels. Obliquely situated. 5. An incised injury 10 cm x 3 cm x 2 cm over right forearm upper 1/3rd area. Anterior aspect. 6. An incised injury 10 cm x 3 cm x Bone deep over right side face cut clinical suspision of fracture of mandible. 7. An incised injury 10 cm x 3 cm x 3 cm over right side neck. Obliquely situated exposing muscles and vessels. Internal examination: Head: multiple cut section of right occipital bone present. Injury to brain and meninges present on right occipital area. Multiple haematomas with pooling of blood present. Fractured base of the skull present. Neck: on both sides major vessels were injuries present. (carotids, venis). Muscles and vessels cut section over left fore arm B-B fractures present. On cut section face right side compound fracture of face mandible present.” 17. The evidence of PW-12 is about conducting inquest over the dead body of the deceased persons as he was the M.R.O. at that time. 18. The evidence of PW-13 is about conducting postmortem examination over the dead body of Amaravathi (D-1) and finding the following injuries and giving opinion in Ex.P-11, certificate. External Injuries:- 1. A cut injury of 17 cm x 3 cm x 2 cm involving right ear and posterior part of skull extending from the middle of the right ear involving fragus and pinna of the right ear and lower 1/3rd of both occipital bones with fracture of both occipital bones and the brain matter is exposed from the wounds. The wound is horizontal to semilunas in shape. 2. A cut injury of 7 cm x 3 cm x 2 cm across the left lower pinna of the ear extending across the left parietal and occipital bones with fracture of both bones. 3. An abrasion of 2 cm x 1 cm over the skin of right tibia. Internal injuries: The skull: There is fracture of occipital and parietal bones corresponding to above injuries. The lower part of contusion and laceration of lower part of brain, item surrounded by a contusion (hematoma) of 5 cm x 3 cm x 2 cm in size with torn meninges around it. Neck: Hyoid is intact. Soft tissues and treachea are normal. Thorax: lungs normal in size and heart normal in size and empty. Abdomen: Stomach is empty viseera are normal.” 19. The evidence of PW-14 is about the receipt of the complaint, Ex.P-1, and registering the crime. 20. The evidence of PW-15 is about examining PW-2 and finding the following injuries and issuing certificate, Ex.P-13. 1. An abrasion about 1 cm x 1 cm lateral to the left eye. 2. An abrasion about 1 cm x 1 cm on the thumb on the dorsal aspect. 3. A lacerated injury about 3 cm x 1/4 cm x 1/4th cm on the forearm lateral side. 4. An abrasion about 2 cm x 1 cm on the right palm dried clotted blood present over the injury. 21. The evidence of PW-16 is about the investigation done by him in this case. 22. The learned counsel for the accused contends that the evidence of PWs.1, 2 and 4 about the incident cannot be believed as they are all interested witnesses and further there are no overt acts attributable to A-2 and the other independent witnesses, who are said to have seen the accused in the incident, did not support the prosecution case and the motive attributed is not valid and therefore, the conviction of the accused is bad. 23. On the other hand, learned public prosecutor submits that the evidence of PWs.1, 2 and 4 is very specific and there is no ambiguity about the identification of the accused and both the accused came with preparation for commission of the offence and therefore, the conviction imposed by the learned Sessions Judge cannot be interfered. POINT Nos.1 and 2: 24. There is no dispute about the fact that Amaravathi(D-1) and Sekhar (D-2) are wife and husband and for sometime they lived at Dharmavaram and later shifted to Madanapalle. It is not in dispute that the accused are the brothers of Amaravathi (D-1). According to the case of the prosecution, Sekhar (D-2) is said to be having illicit intimacy with one Syamalamma, which was not relished by the accused and they have warned Sekhar (D-2) several times, but there was no change in his attitude. So far as this fact is concerned, the evidence of PWs.1 and 4, who are no other than the mother and sister of Sekhar (D-2) respectively, clearly shows that Sekhar (D-2) was having illicit intimacy with one Syamalamma. Therefore, there cannot be any doubt about the prosecution case that the conduct of Sekhar (D-2) was not relished by the accused though their sister Amaravathi (D-1) has pleaded to leave her alone. The incident is said to have happened at about 8-00 PM in the house of PW-2. Evidently, PW-1 was said to have been called to Madanapalle by Sekhar (D-2) to look after his children as he intended to go to Dharmavaram. Therefore, Sekhar(D-2) was intending to go to Dharmavaram and leave his wife Amaravathi (D-1) at Madanapalle which was again a cause for complaint by the accused. At about 8-00 PM, when PWs.1, 2 and 4 along with the deceased persons were said to be present in the house of PW-2, the incident is said to have happened. In the cross-examination of PW-1, the presence of PWs.2 and 4 and the deceased in the house of PW-2 is not at all disputed. The fact that both the murders have taken place in the house of PW-2 is also not in dispute. Therefore, the prosecution case and the evidence of PW-1 that she came to the house of PW-2 only when she was called for a particular purpose is true. Hence, there cannot be any doubt about the identification of the real culprits when particularly the accused, who are the brothers of Amaravathi (D-1), are known to PWs.1, 2 and 4. In fact, it is not the specific case sought to be made out by the accused that they are not known to PWs.1, 2 and 4. Further, the incident is said to have happened at about 8-00 PM and the complaint Ex.P-1 was lodged with the police without much delay at about 11-00 PM on the same day. The possibility of implicating innocent persons is remote and in fact, when PW-1 lost her son and daughter-in-law, there is no reason to leave the real culprits and implicate the accused persons. In fact, it is not a case where the accused tried to contend that PWs.1, 2 and 4 have got any individual grouse against all the accused to implicate them in any false case. Therefore, there is no need for PWs.1, 2 and 4 to leave the real culprits and speak falsehood against the accused if really they are not perpetrators of the crime. In the cross-examination of PWs.1, 2 and 4, we do not have much material to discredit their testimony, as being natural, reliable and corroborative, which was accepted by the learned Sessions Judge. 25. The learned counsel for the accused contends that the death of both the deceased persons is said to have been caused only by hacking with a sickle by A-1 and there are no specific overt acts attributed to A-2 except general allegations of threat to kill the deceased persons, and the evidence of PWs.1 and 2 is also only to the extent that the other accused caught hold of the Sekhar (D-2) when he was inside, and A-1 hacked Sekhar (D-2). 26. As rightly contended by the learned counsel for the accused, it might be a case where all the brothers intended to chastise Sekhar (D-2) about his conduct and to plead for their sister Amaravathi (D-1) and there is nothing to infer that A-2 has got knowledge that A-1 was carrying weapon along with him and intended to kill any one of the deceased persons. Therefore, mere accompanying with A-1, at the time when he intended to question the deceased persons, cannot be a common intention inferable on the part of A-2, that he also shared the common intention of A-1 to attack the deceased persons. The confessional statement of A-1 leading to the recovery of material objects shows that he is the only person, who committed the offence. If really the prosecution story about all the accused have planed to attack the deceased persons is true, A-2 would have also carried some weapon with him to attack. Even otherwise, according to the prosecution case, the accused persons went to question the deceased persons and when the conduct of their sister Amaravathi (D-1) was not to their taste and she herself did not agree for their suggestions and intended to leave her for peace, the conduct of A-1 has enraged. 27. So far as A-1 is concerned, there is no doubt, he has gone armed with weapon and with preparation to cause the incident as such. He also concealed the weapon, which is not visible to any person, thereby the intention on his part is quite clear. Apart from it, he caused injuries on vital organs of the deceased persons inspite of the objections. 28. Therefore, for all the above reasons, we find that there is a reasonable benefit of doubt available to A-2 since his intention to commit any crime against the deceased persons and his knowledge that A-1 has made preparation for commission of the murder of the deceased persons, are not inferable. The prosecution has not proved beyond reasonable doubt the guilt of A-2. Therefore, the convictions and the sentences imposed against A-2 are liable to be set aside. 29. So far as A-1 is concerned, the intention and the nature of attack are quite clear that he has committed the offence punishable under Section 302 of IPC against both the deceased persons without any doubt. The prosecution has proved beyond reasonable doubt the guilt of A-1. Therefore, the convictions and the sentences imposed on A-1 are liable to be confirmed. 30. The points are, accordingly, answered. 31. In the result, the Criminal Appeal is partly allowed confirming the convictions and the sentences recorded against the first appellant-A1 (Kannemadugu Gopal @ Gopi) by the VII Additional District and Sessions Judge, Madanapalle, vide Judgment, dated 10-07-2007 in S.C.No.378 of 2005 of the offences punishable under Sections 302, 324 and 506(2) of IPC and setting aside the convictions and the sentences recorded against the second appellant-A2 (Kannemadugu Gangadhar) of the charges under Sections 302 read with 34, 324 and 506 (2) of IPC. Second appellant-A2 (Kannemadugu Gangadhar) is found not guilty of the offences with which he was charged and accordingly, he is acquitted of the same. Second appellant-A2 (Kannemadugu Gangadhar) shall be released forthwith if he is not required to be detained in any other case. The fine amount, if any, paid shall be returned to second appellant-A2 (Kannemadugu Gangadhar). _____________ K.C. BHANU, J ______________________ N.R.L. NAGESWARA RAO, J Date: 30-12-2010 YCR