HONOURABLE SRI JUSTICE K.C.BHANU AND HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL Nos.839 of 2007 and 2241 of 2004 and CRIMINAL REVISION CASE No.138 of 2005 CRIMINAL APPEAL No.839 of 2007:- Between: The State of Andhra Pradesh, rep. By its Public Prosecutor, Hyderabad. …. Appellant and Para Veeraiah and others …. Respondents CRIMINAL APPEAL No.2241 of 2004:- Between: Para Veeraiah and others …. Appellants and The State of Andhra Pradesh, rep. By its Public Prosecutor, Hyderabad. …. Respondent CRIMINAL REVISION CASE No.138 of 2005:- Between: Damineni Rathnamma. …. Appellant and Para Veeraiah and others …. Respondents This Court made the following: HONOURABLE SRI JUSTICE K.C. BHANU AND HONOURABLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL APPEAL Nos.839 of 2007 and 2241 of 2004 and CRIMINAL REVISION CASE No.138 of 2005 COMMON JUDGMENT: (per the Hon’ble Sri Justice N.R.L.NAGESWARA RAO) All these criminal appeals arise out of the judgment in Sessions Case No.341 of 1997, dated 30.09.2004, on the file of III Additional Sessions Judge, Nellore, whereunder about 18 persons were prosecuted and accused Nos.1 to 3/appellants herein were convicted for the offence punishable under Section 326 IPC. 2. The case of the prosecution is that there are political groups in the village Nagulavelaturu of Chejarla Mandal and one group is lead by A3 and the other is lead by Bodduluru Ratnam. In the Panchayat elections one Karnam Lalithamma contested for the post of Sarpanch against the mother of Bodduri Ratnam and the accused supported the candidature of Lalithamma, who won the election against the mother of Bodduluri Ratnam. The deceased is resident of the same village and active supporter of B.Ratnam. The deceased was making representations to the Government against A3 continuously for cutting of the Babul trees in the Government poramboke lands. On 06.04.1996 the deceased along with three others attempted on the life of one Para Yanadaiah, who is the son of A3 and a case in Crime No.17/96 was registered by Chejarla Police Station. Keeping in view that motive and waiting for an opportunity, on 30.05.1996 at about 10:30 A.M., A1 to A6, A8 to A10, A18 and some others attacked one Bathala Hajarathaiah and one Thalluru Chinnaiah with deadly weapons, which is subject matter of a case in crime No.28 of 1996. On 30.06.1996 at about 12 noon all the accused having formed themselves into an unlawful assembly armed with deadly weapons like cart pegs and rods with the common object of killing the deceased. the accused left Nagulavelaturu village in a tractor and trailor of A1 and proceeded towards Yerraballi village side which is situated on the north eastern side of Nagulavelaturu village. P.Ws.7 and others witnessed all the accused proceeding in the tractor of A1 and in pursuance of their common object all the accused found the deceased coming alone near the garden land of Pendem Venugopal which is at a distance of 100 yards to the East of Yerraballi village and they got down from the tractor and attacked him. The deceased in order to save his life desparately ran towards west. A1 beat the deceased with a knife on his right palm. A1, A2, A4, A5 and A6 also beat him with cart peg and rods and caused multiple injuries over his body including fractures on his let fore arm right leg and left leg. P.Ws.1 to 4 witnessed the incident and then all the accused managed to escape in the same tractor. P.Ws.1 to 3 having found the deceased in precarious condition went to Yerraballi village and informed the incident to P.Ws.5, 6 and others. On learning about the incident, P.W.6 came to the scene and found the deceased lying with injuries and when enquired the deceased stated the nature of the incident and attack on him by the accused. The deceased disclosed that A1, A2, A4 to A6 beat him with cart pegs and rods and also on his right leg. Later the deceased was given first aid and the deceased was shifted in a tractor and brought to Chejarla Police Station, where his statement Ex.P25 was recorded by the Sub-Inspector of police and thereafter the deceased was taken to headquarters hospital, Nellore. On the basis of the complaint of the deceased a case in crime No.27 of 1996 under Sections 147, 148, 324, 307, 341 r/w 149 IPC was registered and investigated into. During the course of investigation, the statements of the witnesses and also the deceased were recorded; panchanama of the deceased was conducted; the material objects were seized; got photographed the scene of offence. The investigating officer went to Naguluvelaturu village and found all the accused absconding. On 06.06.1996 at about 10:00 A.M. A1 to A3, A5 to A10 and A11 were arrested and they gave voluntary confessional statements. A1 lead the mediators and police to the Babul tree bushes situated on the southern side of Yenamadala road and produced 9 cart pegs and one Bitchuva from the babul tree bushes, which were seized by the police. Subsequently, the other accused were also arrested and the tractor and trailor used in the commission of the offence was seized. Subsequently, the deceased said to have died on 07.06.1996 and the section of law was altered and the post mortem examination was conducted over the dead body of the deceased and inquest was held over the dead body of the deceased by the police and subsequently all the accused were charged for the offences punishable under Sections 148, 302 r/w 149 PC. 3. The case was taken on file as P.R.C.No.17 of 1997 by the Judicial First Class Magistrate, Atmakur and committed the same to the Court of sessions and made over to the IV Additional Sessions Judge, Fast Track Court at Nellore. After the appearance of the accused, the following charges were framed: FIRSTLY:- On 30.05.1996 at about 12:30 hours noon time at Yeraballi main road near the garden land of Pendam Venugopal, you A1 to A18 formed into an unlawful assembly with deadly weapons like axes, knives, iron rods and cart pegs with a common to kill one Damineni Chowdary son of Narasaiah of Nagulavelturu village of Chejerla Mandal due to previous disputes wth hi and in pursuance of such common object you used criminal force with deadly weapons and thus committed an offence of rioting punishable under Section 148 IPC and within the cognizance of this Court. SECONDLY:- At the same time and place and during the course of same transaction mentioned in charge No.1, in pursuance of the common object of unlawful assembly, A1 of you beat with a knife on the right hand of Damineni Chowdary, whereas A1, A2, a4, A6 and A7 of you beat with deadly weapons on both legs of Damineni Chowdary due to which he died subsequently and thus you A1, A2, A4, A6 and A7 committed an offence of murder punishable under Section 302 IPC and within the cognizance of this Court. THIRDLY:- At the same time and place and during the course of same transaction mentioned in charge No.1, A1, a2, A4, A5 and A7 who are the members of the unlawful assembly, in pursuance of the common object of the said assembly committed murder of Damineni Chowdary and you A3, A5, A8 to A18 also being the members of the said unlawful assembly, thus committed an offence punishable under section 302 r/w 149 IPC and within my cognizance. 4. On behalf of the prosecution, P.Ws.1 to 23 were examined and Exs.P1 to P32 and Exs.D1 to D3 were marked in the cross-examination of the witnesses. The prosecution also marked M.Os.1 to 11. After the evidence of the prosecution witnesses is over, the accused were examined under Section 313 Cr.P.C. and no defence evidence is adduced. 5. After considering the evidence on record, the learned sessions Judge found that there is no material to find the accused guilty of the offence punishable under Section 302 IPC and also found that the evidence on record supported by the Dying declaration of the deceased under Ex.P25 establishes culpability of A1, A2 and A4 for the offence punishable under Section 326 IPC. 5. As against that the accused preferred criminal appeal No.2241 of 2004 challenging their conviction; the State has preferred criminal appeal No.839 of 2007; Criminal Revision Case No.138 of 2005 was filed by the mother of the deceased challenging the acquittal of the accused for the offence punishable under Section 320 IPC and the culpability of all the other accused. 6. Heard Sri Bal Reddy, learned Senior Counsel for Sri M.V.Narayana, learned counsel appearing for the appellants/A1 to A3; Sri C.Praveen Kumar, learned counsel for the petitioner in Crl.R.C. and also the learned Public Prosecutor appearing for the State. 7. The points that arise for consideration are: 1) Whether the acquittal of the accused by the learned Sessions Judge for the offences punishable under Section 302 IPC and the other accused is legal and sustainable and if there is any reason for this court to interfere with the recording of the acquittal by the lower court? 2) Whether the conviction and sentence imposed by the learned Sessions Judge against A2 to A4 is legal and sustainable? 5. So far as the factions in the village and the differences between the group of the accused and B.Ratnam are concerned, the evidence of P.Ws.1 to 4 establishes the same. In fact no serious effort was also made in the lower court to discredit this part of the prosecution case about the differences between both the groups. The learned Sessions Judge, so far as the offence punishable under Section 302 IPC is concerned, found that there are no serious injuries which are not consequential in the ordinary course of events to cause death of the deceased and there are no injuries on the vital parts of the body and the lower court also found that from 01.06.1996 till the date of death of the deceased, the whereabouts of the deceased were not known and what was the treatment that was given to the deceased is also not known. Even during the course of the investigation also nothing could be found out as to where he was treated and what was the treatment given to him. Therefore, in view of the circumstances, the lower court was not inclined to accept the prosecution case that the cause of death of the deceased was due to the injuries that were inflicted on the deceased by some of the accused. In fact, the evidence of P.W.19, who took up post mortem examination also does not show that the immediate cause or reason for the death of the deceased was the injuries and his opinion as to the cause of death was only due to lack of proper treatment and the cause might have been the injuries. Evidently, in order to find the guilt of an offence of murder it is essential for the prosecution to prove that the injuries said to have been caused on the person of the deceased shall be on the vital parts of the body and such injuries should be the immediate cause or following cause of the death of the deceased. In this case as rightly noticed by the lower court and also as can be found from the wound certificate Ex.P22, the injuries are not on any of the vital parts of the body. The injuries mentioned in Ex.P22 wound certificate are as follows: 1. Patient Semi Conscious. Responding to deep stimulate only deformity and generalized tendernace of left fore arm and its middle fendernace part. 2. 2” long X 1” wide muscle deep lacerated wound on lower 1/3 of left leg bleeding present. 3. 1” diameter punctured wound X ½“ deep on middle of left leg bleeding present. 4. Diffused swelling of both ankle joints. 5. Semilunar lacerated injury on sole of left big toe. 2½“ long X ½“ wide muscle deep. Bleeding present. 6. 3” long X ½ “ wide muscle deep lacerated wound in the web between right thumb and index finger. Bleeding present. 7. 3” long X 2” wide reddish contusion over left buttock. 6. Therefore, what can be seen from Ex.P22 is that there are injuries on the left forearm, right arm, ankle and legs. The reasons given by the learned Sessions Judge to discard the prosecution case for an offence under Section 302 IPC is based on factual circumstances of the case and in fact there is also no other medical evidence to prove the above facts. Therefore, mere intention to attack is not sufficient when there are no corresponding injuries to cause death in the course of attack. The effort of the learned prosecutor and also the learned counsel for the revision petitioner to make out a case under Section 302 IPC cannot be accepted in view of the positive evidence of P.W.19 and the positive conduct of the family members of the deceased in being taking away from the Government Hospital and non availability of any information about the consequential treatment to the deceased after he was taken away from the hospital at Nellore on 01.06.1996. Therefore, for the above reasons we find that there are no reasons to interfere with the finding of the learned Sessions Judge about the acquittal of the accused for the offence punishable under Section 302 IPC since the essential ingredients of cause of death as a consequence of the injuries caused on the person of the deceased is not established. 7. So far as the evidence of actual incident is concerned, the evidence of P.W.1 who is said to be an eye witness to the incident goes to show that on the date of the incident at about 12.30 P.M., when he was attending in his garden, he was thinking to go to his house to have lunch and returned to my garden and when he reached Yerraballi road, he saw the deceased coming from opposite direction and he also noticed A1 to A7, A9, A14, A16, A18 and some others coming in a tractor from the main road and the accused tractor was coming on opposite side. On seeing the deceased those persons who were traveling in tractor jumped down and they were armed with axes, iron rods, cart sticks and knifes. The accused surrounded the deceased and started beating him indiscriminately. He became afraid and went away. O n hearing the cries of the deceased, P.Ws.2, 3 and 4 came there. He started running and the deceased ran towards south and he went to Yerraballi Village and informed the villagers. Again he came back and noticed the deceased fallen near Kattava of Pendem Venugopal. When enquired the deceased stated as to what happened and he informed them that A1 hacked him with a knife on his right hand. A1, A2, A4, A6 and A7 beat him with cart pets on his legs resulting in fracture injuries. He further deposed about the deceased being taken to the village thereafter the villagers being informed coming there and shifting the deceased to the hospital at Chejarla. In the cross-examination he stated that he is related to Venugopal-P.W.2 and his mother and mother of P.W.3 are sisters. He worked as a teacher in Harijanawada school in Nagulavelaturu Village for about two years and used to go to the village and he had no acquaintance with all the accused, though he knows them. He also spoke about the village politics and disputes with regard to the elections. The incident is said to have happened in severe summer and by the date of the incident he is said to have aged about 60 or 61 years and he is said to be in his garden from 06:00 AM to 12.30 PM. He denied the suggestion that he was not at all at the scene of offence. He further stated that he did not accompany the injured to Chejarla police station. According to him the injured was lying 40 yards away from Yerraballi Village on western side. He denied the suggestion that the deceased was a man of bad character and having all vices and that somebody beat him and got the injuries who were enemical to him by then. 8. The evidence of P.Ws.2 and 3 is also about the coming to the scene and also enquiring from the deceased about the cause of his injuries and the statement said to have been given to them about the participation of A1, A2, A3, A4, A6 and A7. P.W.4 claimed that her garden is situated at a distance of 10 metres away from the garden land of P.W.2. On 30.05.1996 when she was at lemon garden she heard loud cries from Yerraballi Road which is by the side of her garden. She rushed there and noticed A1 to A4, A6, A7, A9, A14 and A16 and some others present armed with deadly weapons and beat the deceased. According to her, the deceased was coming on Yerraballi Road by walk from north to south. The accused chased while he was running towards west. She also spoke about the presence of P.Ws.1 to 3 at a distance from her and she did not question accused or intervene as to why the accused attacked the deceased. Due to fear she ran towards the main road leading from Chejarla to Kambampadu, within five minutes a bus came there and she went in the bus to Kambampadu. She narrated the incident to one P.W.9 and thereafter she went her house. The evidence of P.W.5 is that on 30.05.1996 at about 01:00 PM when he was at the community hall. P.Ws.1 to 3 informed him that the deceased was beaten near the garden of P.W.2. Then he along with P.Ws.6 and others went to the scene and found the injured was lying towards the northern side of the garden of P.W.2 and they supplied water to the deceased and enquired as to what happened. The deceased was not in a position to move and the deceased was shifted in a tractor to Chejarla police station by him and other villagers. 9. The evidence of P.W.6 is not in support of the prosecution case and was declared as hostile. The evidence of P.W.7 is that on 30.05.1996 he heard a galata in the streets of the village. The accused and some others boarded a tractor in his village and went towards Yerraballi side armed with deadly weapons. The evidence of P.W.8 is about the fact of noticing the accused persons going in a tractor while he was watching his cattle at about 12:00 noon. The evidence of P.W.9, is about the information given by P.W.4 about the attack on the deceased and arranged the tractor for taking the deceased to the hospital. P.W.10, who is a tractor driver, spoke about the shifting of the injured to Chejarla police station, but he did not support the case of the prosecution so far about the information said to have been given by the deceased while he was shifted and he was declared as hostile. P.W.11, who is a Village Administrative Officer of Nagulavelaturu village, deposed about the enquiries made by him after the attack on the deceased. The evidence of P.W.12 is that the deceased was her son and after coming to know about the attack on the deceased she went to Chejarla police station. The evidence of P.W.13, is about the galata in the village prior to the incident and thereafter all the accused going in a tractor armed with deadly weapons. 10. The evidence of P.W.14, is about the apprehension of A2, A16 and A18 came to the police station after obtaining anticipatory bail and they are said to have been interrogated by the police and A18 is said to have confessed that the tractor was kept with son-in-law of A3 and M.O.9 is the tractor seized by the police. The evidence of P.W.15 is about his presence at the time of inquest over the dead body of the deceased. The evidence of P.W.16 is about the taking of the photographs at the scene. The evidence of P.W.17 is about the presence at the time of panchayat of the scene and apprehension of A1, A2 and A3 and recovery of M.Os.1 to 11 in pursuance of the confession of A1. 11. The evidence of P.W.18, who was a Civil Assistant Surgeon in D.S.R. Government Hospital, Nellore. On 30.05.1996 he examined the deceased Damineni Chowdary and noticed the injuries as found in Ex.P22 as referred above. The evidence of P.W.19 is that he conducted post mortem examination over the dead body of the deceased on 08.06.1996 and issued the post mortem certificate-Ex.P23, which contains the following injuries. 1) Healed lacerated wound over anterior surface of right wrist 8 cs in length. 2) Healed abrasion over middle of back of right forearm 6 cms in length. 3) Fracture of lower end of both tibia and fibula on both sides with bruising in the surrounding sot tissue. 4) Fractre of lower end of left forearm bones with bruising in the soft tissue. 5) Sub scalp bruise at mid occupital region. 12. In the cross-examination he stated that the nature of the injuries 3 and 4 are grievous in nature and there are not fatal to human beings. He also stated that if proper treatment had been given the injuries can be set right. According to him, there was no infection of any of the injuries referred in the post mortem certificate and he does not know what type of treatment was given to the deceased and how he died. The evidence of P.W.20 is that he was present at the time when the post mortem examination was conducted by the Doctor. 13. The evidence of P.W.21 is that the deceased is known to him and on 07.06.1996 when he was at Stanley Hospital when his brother Rajakumar was taking treatment he came to know about the death of the deceased and he went to the police and informed the same under Ex.P24 report. The evidence of P.W.22 is about recording the statement of the deceased Ex.P25 and registering it as a case in crime No.27 of 996 and investigating the case. The evidence of P.W.23, who was the Circle Inspector of Police at that time is also about the investigation done by him in this case. 14. Learned counsel for the appellants contends that the lower court has rejected the evidence of P.Ws.1 to 4 being not eye witnesses to the incident and they are said to be only chance witnesses and the lower court has erred in relying upon Ex.P25 which is said to be the statement of the deceased recorded by P.W.22. If Ex.P25 is excluded from the evidence, there is absolutely no material to convict the accused in this case. According to the learned counsel for the appellants, there is no certificate with the Doctor and the possibility of injured giving such a statement is improper because he was taken to the hospital from the scene and there is nothing to show that he was conscious and coherent and as such reliance cannot be placed on Ex.P25. In this connection, while appreciating Ex.P25 as true or not and coming to a conclusion as to whether reliance can be placed or not and whether such a statement is corroborated by any other evidence, leave alone the fact whether there is proper recording of the statement of the deceased by P.W.22 or not. 15. It is true that learned Sessions Judge found that the evidence of P.Ws.1 to 4 as to the actual attack on the deceased cannot be considered for the reasons from their own evidence. They have left the scene after seeing the accused chasing the deceased and they came only after the attack on the deceased. The positive evidence of the witnesses P.Ws.1 to 4 is that they have enquired with the deceased and the deceased has given a statement to them as to the assailants on him.