HIGH COURT OF JUDICATURE OF ANDHRA PRADESH THE HONOURABLE SRI JUSTICE V.ESWARAIAH AND THE HONOURABLE SRI JUSTICE V.SURI APPA RAO CRIMINAL APPEAL NO. 1066 OF 2007 Wednesday, the Ninth day of March, Two Thousand and Eleven Between The State of A.P., Rep.by the Public Prosecutor, High Court of A.P., Hyderabad. Appellant AND Jinnabathina Satyanarayana (died) and three others Respondent THE COURT MADE THE FOLLOWING: JUDGMENT:(per the Hon’ble Sri Justice V.Eswariah) As Accused No.1 is reported to have died, the appeal as against him is abated by order dated 20.8.2007. This appeal is preferred by the State against the judgment dated 26.02.2005 passed in Sessions Case No. 60 of 2002 by the learned VI Additional Sessions Judge (Fast Track Court), Krishna at Machilipatnam, acquitting the accused 1 to 4 - respondents herein for the offence under Sec. 302 IPC. The case of the prosecution, briefly stated, is that all the accused and the deceased Aariga Krishna Murthy are residents of Talagadadeevi village of Avanigadda Circle, Krishna District. A-1 is Ex-sarpanch of the village and A-2 is the Secretary of the Harijanwada Committee. A-2’s wife was elected as Sarpanch of the said village. All the accused belong to Harijan Community and they are sympathizers of Congress (I) Party and closely associated with each other. The deceased also belonged to Harijan community and a resident of the same village. He was President of the Hajianwada Committee and a sympathizer of Telugu Desam Party. On 14.11.2001 at about 7.00 p.m., all the accused in furtherance of their common intention to kill the deceased, attacked him with deadly weapons like knives and iron rods and caused multiple injuries on his body at the bridge situated in the outskirts of Talagadadeevi village and in consequence of the same, the deceased succumbed to the injuries on 15.11.2001 at 9.15 a.m. at Headquarters Hospital, Machilipatnam. In the Gram Panchayat elections, held in the recent past, the post of sarpanch was reserved for Scheduled Caste and as per the understanding, the wife of A-2 was nominated as Sarpanch, on the condition of A- 2 donating Rs.31,000/- for the welfare and development of Harijanwada Committee. Accordingly, the wife of A-2 namely Smt. Vijaya Laxmi, was proposed unanimously for the post of Sarpanch and later A-2 donated Rs.31,000/- to the Harijanwada Committee, as per their understanding and handed over the same to the deceased, who in turn has handed over the said amount to A-2, being the Secretary, for safe custody, as his house was under repair. Though the wife of A-2 was unanimously elected, yet disputes arose between the deceased and the accused with regard to the election of Ward Member of 6th Ward. The accused proposed brother of A-4 as the Ward Member whereas the deceased proposed one Rambabu, brother of PW-1. The deceased supported Rambabu in the said election and the brother of A-4 was defeated. Since then the accused developed enmity against the deceased. A-2 refused to return the amount of Rs.31,000/- to the deceased on the pretext that the deceased supported Rambabu, who belongs to Kapu community. The deceased reported the matter to Nagayalanka Police Station against the accused No.2, who registered a case in Cr. No. 58 of 2001 for the offence under Section 406 IPC. Since then the accused developed grudge against the deceased. On 14.11.2001 at about 7.00 p.m. the deceased was going on cycle to Harijanwada and when he reached the bridge, all the accused in furtherance of their common intention to kill the deceased, armed with deadly weapons like knives and iron rods, waylaid the deceased and attacked him. A-1 gave a blow with the reverse side of the knife on both hands while A-2 gave a blow with the reverse side of knife on his right hand wrist, A-3 beat him with an iron rod on his left leg and chest while A-4 beat him with iron rod on both legs and waist. All the accused gave heavy blows with deadly weapons on the hands of the deceased indiscriminately with an intention to kill him. At that time PWs. 1 to 3 while coming from Harijanwada heard the cries of the deceased and saw the incident in the streetlights that all the accused were beating the deceased with deadly weapons. PWs. 1 to 3 rushed to the scene of offence and when PW-1 tried to intervene and separate the deceased from the accused, the accused pushed him aside and threatened him with dire consequences, due to which PW-1 sustained injuries. Thereafter, the accused left the scene of offence thinking that the deceased might have died. Then PW-1 and 2 brought the deceased to Nagayalanka Police Station and PW-3 went to Harijanwada and informed the incident to the wife of the deceased and others. The Sub-Inspector of Police, PW-6 recorded the statement of the deceased under Ex.P-9 and registered as Cr. No.67 of 2001 under Sec. 324 read with Sec. 34 IPC. He referred the deceased and PW-1 to Govt. Hospital, Avanigadda for treatment. After registering the case, the Sub-Inspector of Police, took up investigation, visited Govt. Hospital, Avanigadda and recorded the statement of PWs.1 and 2 and later visited the scene of offence in the presence of mediators. The offence took place at the bridge near the outskirts of Harijanwada. He seized one cycle, mud stained clothes and polythene containing crackers belonging to the deceased, under a cover of observation report and later visited Harijanwada and examined PWs. 4 and 5. On 15.11.2001 at about 12.15 p.m., PW-6 received intimation regarding death of the deceased from the outpost of Nagayalanka Police Station and altered the section of law from Sec. 324 r/w 34 IPC to Sec. 302 r/w 34 IPC and issued FIR, as the deceased succumbed to the injuries. After receipt of the FIR, the Inspector of Police, Avanigadda, took up investigation, visited the scene of offence and later visited the Govt. Headquarters Hospital, Machilipatnam and held inquest over the dead body of the deceased in the presence of panchayatdars and got drafted inquest report. Thereafter, he sent the dead body for post mortem examination. During the course of investigation on 28.11.2001, he arrested A-2 to A-4 in the presence of mediators at bus stand, Avanigadda, interrogated them and recorded their confessional statements and they lead to the culvert near Barrenkula Cross Road at the outskirts of Talagadadeevi and at their instance got recovered one knife and two rods which were concealed nearby bushes, under a cover of mediators report. On 14.12.2001, the Inspector arrested A-1 in his house at Talagadadeevi village and got recorded the confessional statement under mediators report and recovered a knife, which was concealed by him in the bushes near water tank under mediators report. The Medical Officer, who examined the deceased in Govt. Hospital, Avanigadda, issued wound certificate. He also examined PW-1 and issued wound certificate Ex.P-14. Thereafter, PW-8 Civil Assistant Surgeon, Govt. Hospital, Machilipatnam, conducted autopsy over the dead body of the deceased and issued post mortem certificate, Ex.P-15 and opined that the deceased died due to poly trauma and multiple fractures. After completion of the investigation, charge sheet is filed. The learned Sessions Judge framed a charge against all the accused for the offence under Sec. 302 IPC. The accused denied the offence and pleaded not guilty. In order to bring home guilt of the accused for the offence under Sec. 302 IPC, prosecution examined PWs 1 to 9 and marked Exs. P-1 to P-15 and M.Os. 1 to 8. On behalf of the defence, DW-1 was examined and marked Exs. D-1 and D-2. PW-1, who is the injured witness, deposed that he knows all the accused. In the panchayat elections held in the year 2001, since the post of Panchyath President was reserved for Scheduled Caste woman, the Scheduled Caste people formed a committee under the Presidentship of the deceased and A-2 as the Secretary. A-2’s wife bid the President post for Rs.31,000/- among the Scheduled Caste community people and paid the amount of Rs.31,000/- to the deceased, who in turn gave the said amount to A-2, he being the Secretary of the Committee. A-2 refused to refund the said amount and the deceased gave report to the police. For the election of Members of 6th Ward, PW-1’s brother namely Rambabu contested as against the bother of A-4 who belongs to Scheduled Caste. In the election, the deceased supported the brother of PW-1 and he was elected and in that connection, all the accused bore grudge against the deceased. While so, on 14.11.2001 at about 5.00 p.m. PWs-1 and 2 went to Harijanwada of Talagadadeevi village to engage agricultural coolies to work in his field. When himself along with PWs 2 and 3 were returning from Harijanwada and reached Uppu Kalava, they saw A-1 and A-2 beating the deceased on hands with knives and A-3 and A-4 beating him with iron rods on his legs. All the four accused beat the deceased indiscriminately and when he tried to rescue the deceased, A-2 told him that it is their community problem and asked him not to interfere in the matter. So saying, A-2 pushed him and he fell down and received injuries. PWs 2 and 3also asked the accused not to beat the deceased. The accused went away from the scene of offence saying that the deceased died. He sent PW-3 to Harijanwada to inform about the incident to the relatives of the deceased and later himself and PW-2 took the deceased to Nagayalanka Police Station and while they were taking the deceased to the Police Station, the deceased was talking. The Sub-Inspector of Police, PW-6 asked himself and PW-2 to sit outside and he recorded the statement of the deceased and obtained his thumb impression and later called them and recorded their statements. The Police sent himself, PW-2 and the deceased to Government Hospital, Avanigadda. Later the deceased was sent to Hospital at Machilipatnam for treatment and PW-1 was treated at Avanigdda Hospital. On the next day, the deceased Krishna Murthy died. He stated that he witnessed the incident in the electrical lights at the scene of incident. He deposed that the deceased was coming on cycle with crackers and after he was attacked, his cycle, lungi, towel and crackers were scattered there. He identified the knives as M.Os. 1 and 2 and the rods as M.Os. 3 and 4. In the cross-examination, he stated that he cannot say the details of the amount said to have been given by A-2’s wife to the deceased, who in turn has given the same to A-2. The reasons for the deceased asking A-2 to keep the money with him was that the house of the deceased was under construction and it is not safe to keep the money in the house. He admitted that his brother won the election one month prior to the incident though all the accused worked for the victory of A-4’s brother. He stated that by the time of the alleged offence, 20 to 30 persons were passing across Upputeru Kalava. He stated that he did not make any attempt to snatch the weapons from the hands of the accused and also did not make any attempt to push the accused to avert the beating against the deceased. When PWs 1 to 3 intended to rescue the deceased, the accused ran from the scene and they chased the accused upto one kilometer towards Sorlagondhi village and within fifteen minutes they returned to the scene of offence. He further stated that within a distance of ten yards from the scene of offence, there is main road from Nagayalanka to Dindi village and there are five villages to the east of Talagadadeevi village and all the villagers have to go through the main road. Though their clothes were stained with blood of the deceased when they took the deceased in the jeep, the police has not seized the blood stained clothes. He did not notice whether the blood of the deceased had fallen on the scene of offence. When the police were recording the statement of the deceased, they were standing outside and they did not witness the deceased giving statement. He admitted though there are doctors practicing in Nagayalanka, they did not make any attempt to provide first aid treatment to the deceased. He does not know whether the knives M.Os. 1 and 2 are available with everybody in the village. PW-2 Varre Raghava Rao, is a resident of the same village and he knows the deceased and the accused. On the day of incident, he along with PW-1 went to Harijanwada of Talagadadeevi village to the house of PW- 3 to bargain and engage agricultural coolies. When himself along with PW-3 were returning from Harijanwada and reached near Uppu Kalava at about 7.00 p.m., they saw A-1 to A-4 attacking the deceased with knives and iron rods. A-1 and A-2 beat the deceased with knives and A-3 and A-4 beat the deceased with iron rods. When PW- 1 requested the accused not to beat the deceased, A-2 told PW-1 not to interfere in their matter and pushed him and fell down and when PW-2 and PW-3 went near PW-1 and asked the deceased not to kill the deceased, the accused went away. He went to Harijanwada to the house of PW-3 to inform about the incident to the relatives of the deceased. PWs 1 and 2 took the deceased in a jeep to Nagayalanka Police Station where police recorded his statement and the statement of the deceased and sent himself and PW-1 along with the deceased to Govt. Hospital, Avanigadda. As the condition of the deceased was precarious, he was sent to Govt. Hospital, Machilipatnam, where he died on the next day. Thereafter, the Inspector of Police conducted inquest over the dead body and the reasons for the accused to cause the injuries were recorded therein. In the cross-examination, he stated that he worked as coolie in the field of PW1 and he also owns one acre of land in Kothapalem and doing cultivation. He again stated that he did not do coolie work in the field of PW-1 on the date of incident i.e. Deepavali day. They called four or five coolies. They reached Uppu Kalava within ten minutes after leaving the house of PW-3. PWs. 1 and 2 were not armed with sticks. The house of PW-3 is at a distance of 1½ furlong from the scene of offence. He also stated that while they were talking with PW-3 to pay the coolie charges to him to engage the coolies to the field of PW-1, they saw the incident from ten yards. The deceased sustained bleeding injuries. They did not observe the blood stains on the floor at the scene of offence. The blood of the deceased had stained their clothes. He stated that the accused might have given 14 to 15 blows to the deceased, but he did not carefully observe whether the accused beat the deceased on his head. All the accused beat the deceased at a time all over the body. He stated that the main road is at a distance of 5 to 6 yards from the scene of offence but he did not call the public to rescue the deceased. He tried to snatch the weapon from the accused, but they went away. The deceased was with the police for about 1½ hour. He does not know what statement was given by the deceased to the police. He does not know personally about the bidding of the President post by A-2’s wife and paying the amount of Rs.31,000/-, etc. but the deceased told those facts to him. Himself and PW-1 chased the accused to a distance of 100 feet. On the date of incident, the villagers have not moved at the scene of offence. He further stated that till they left the police station, the relatives of the deceased did not come to the Police Station. PW-3 Karra Subba Rao, simply stated about the bid amount of Rs.31,000/- said to have been paid by A-2’s wife for her unanimous election to the post of President, which was handed over to the deceased, being President, who in turn had handed over the same to A-2, being the Secretary of the Harijanwada Committee for safe custody and that A-2 refused to return the same on the ground that the deceased supported the candidature of PW-1’s brother for the post of Ward Member against A-4’s brother. On the date of incident, PWs 1 and 2 came to his house to engage coolies and PWs 1 and 2 were in his house till evening and he asked PW-1 that unless he pays some amount to the coolies, it was difficult to engage them. PW- 1 asked him to come to his house to collect the coolie charges and when himself and PW-2 were going to the house of PW-1 and when they reached near Uppu Kalava, they saw A-1 and A-2 armed with knives and A-3 and A-4 armed with iron rods were beating the deceased indiscriminately and when PW-1 went near the accused and tried to rescue him, A-2 pushed him saying that he should not interfere into their matter. On seeing all of them, the accused ran away and PWs. 1 and 2 chased them to some distance and he stood near the deceased and later went to Harijanwada and informed the incident to the wife of the deceased. The incident occurred at about 7.00 p.m. and there were streetlights near the scene of offence. He denied the suggestion that the coolie charges have to be paid after doing the work. PW-4, Arige Vijaya Kumari, wife of the deceased, is only a circumstantial witness. She stated about the enmity of the deceased with the accused. She deposed that when she was informed about the incident on 14.11.2001 at about 7.30 p.m. by PW-3, she went to Nagayalanka Police Station and by that time as he was already shifted to Govt. Hospital, Avanigadda, she went to Govt. Hospital, Avanigadda where the doctors have informed that as deceased was in serious condition, he was shifted to Govt. Hospital, Machilipatnam, where he died on the next day. She admitted that she saw her husband at Avanigadda Hospital at 8.00 p.m. The police came to Avanigadda Hospital where they have recorded the statement of her husband. PW-5 S.Lakshman Rao, Assistant Secretary in Talagadadeevi village, who also worked as Village Administrative Officer of the same village, acted as panch of the scene of offence. He stated that at the scene of offence, they observed one cycle, a towel, lungi and some crackers scattered there, which the police seized under observation report, Ex. P-1. MO-5 to 8 are the cotton towel, firecrackers, lungi and hero cycle. He scribed the observation report, Ex.P-1 and also the inquest report, Ex.P-2. The confessional statements of A-2 to A-4 are marked as Ex.P-3 to P-5 leading to the recovery of knife used by A-2 and iron rods used by A-3 and A-4, marked as M.Os. 2 to 4. Ex.P-6 is the panchanama for recovery of M.Os. 2 to 4 conducted in the presence of mediators. Ex.P-7 is the confessional statement of A-1 and M.O.1 is the knife seized at his instance in the presence of witnesses at Mangileru Water Tank. He stated that the bushes wherefrom M.Os. 2 to 4 were recovered is not an open place accessible to one and all and there is one residential house nearby the bushes. The Inspector did not call any inmates of the said house to witness the seizure of M.Os. 2 to 4. PW-6 is the Sub-Inspector of Police, who, after recording the statement of the deceased at 8.00 a.m. on 14.11.2001 on his being brought to the police station by PWs 1 and 2, has registered the FIR in Cr. No. 67 of 2001. Ex. P-9 is the statement of the deceased and FIR is Ex.P- 10. He sent the deceased to Govt. Hospital, Avanigadda for treatment and visited the Govt. Hospital, Avanigadda and examined him, PWs 1 and 2 and recorded their statements under Sec. 161 Cr. P.C. Later himself along with PW-2 observed the scene of offence in the presence of PW-5 and prepared the observation report, Ex.P-1 and also seized M.Os. 5 to 8 under Ex.P-1 and prepared rough sketch of the scene of offence under Ex.P-11. After receipt of the death intimation on 15.11.2001 from the Govt. Hospital, Machilipatnam, he altered the section of law. In the cross-examination, he admitted that he has not collected any proof with regard to the alleged payment of Rs.31,000/- by A-2’s wife to the deceased, who in turn handed over the same to A-2. He also admitted that he has not collected any proof with regard to the Village Development Committee, which was in existence or headed with the deceased. He also did not collect any documentary proof from the Gram Panchayath about the existence of streetlights near the scene of offence. He did not find any bloodstains at the scene of offence and he did not notice any blood stains on the clothes of PWs. 1 and 2 when they came to Police Station along with the deceased. The suggestions that the deceased used to sign and the thumb impression obtained on Ex.P-9 does not belong to the deceased and that the deceased was never brought to the Police Station by PWs. 1 and 2 and that he did not see the deceased, are denied. The suggestion that after death of the deceased, Ex.P-9 statement was brought into existence with the assistance of PW-1 and his brother, are also denied. PW-7 Dr. P.Chandrasekhara Rao, Civil Assistant Surgeon, has examined PW-1 and found one multiple linear abrasion at dorsal aspect of the right and left hand fingers each measuring ½ to 1 cm in length and right red in colour. He was of the opinion that the injuries are simple in nature and could have been caused by thorn like object or needle, pin or nails. But in the cross-examination, he stated that the injured informed him that he was beaten with an iron rod and knife. He also stated that the said injury is possible by self-infliction. PW-8, Dr. T.Vinay Kumar, who worked as Civil Assistant Surgeon, Govt. Hospital, Machilipatnam, deposed that on 16.11.2001 he conducted post mortem examination over the dead body of the deceased at 11.45 a.m. and found the following injuries: 1. Deep lacerated wound over right fore arm middle third about 5 x 3 x 2 CM with deformity. 2. Contusion over right wrist joint 3. Contusion over left forearm middle third 4. Laceration with swelling over left leg and knee joint 5. Contusion with swelling right leg 6. Swelling with deformity of both ankle joint. 7. Contusion and swelling over right chest region. 8. Contusion and swelling over right pelvic region. Internal injuries Skull: No fracture, hyoid intact, facture of 3 to 9 ribs right side with punctured pleura. Remaining all vital organs cut section congested. Fracture of both bones bilaterally leg. Multiple fracture ribs, fracture pelvis and fracture right both bones forearm with cut injury. He was of the opinion that the deceased appeared to have died due to shock due to poly trauma plus multiple fractures. Ex.P-15 is the post mortem report issued by him. He stated that injuries 1 to 8 could be caused with iron rods and knives like M.Os. 1 to 4 and the injuries, in the ordinary course, are sufficient to cause death. In the cross-examination, he stated that if the sharp edged portion of M.Os. 1 and 2 is used, the cut injuries are found and there is loss of consciousness due to all the injuries. PW-9 B.Venkata Rao, is the Inspector of Police, who conducted inquest over the dead body, Ex.P-2 and sent the dead body for post mortem examination. He arrested A-2 to A-4 on 28.11.2001 and after recording their