IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THIS THE TWENTY SEVENTH DAY OF JULY, TWO THOUSAND AND ELEVEN PRESENT HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1269 OF 2007 & CRIMINAL REVISION CASE No.1367 of 2009 Between: Bethamsettty Thirupathaiah … Appellant And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad and others … Respondent This court made the following: - HON'BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1269 OF 2007 & CRIMINAL REVISION CASE No.1367 of 2009 COMMON JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Redddy) This Criminal Appeal by A1, A2, A6, A7 and A9 to A15 and the Criminal Revision Case by the de facto complainant, which arise out of the very same judgment in Sessions Case No.136 of 2002, dated 12.09.2007, on the file of VI Additional District & Sessions Judge, (Fast Track Court), Markapur, were taken up together for hearing and disposed of by this common judgment. Eighteen persons stood for trial before the VI Additional District & Sessions Judge, in Sessions Case No.136 of 2002 on the charge of their forming into an unlawful assembly and in furtherance of their common object caused the death of Yadagiri Venkateswarlu (D1) and Bethamsetty Sambaiah (D2) and also inflicted fatal injuries to P.Ws.1 to 5 in the premises of Z.P.High School, Potlapadu village on 15.07.2001. A1 to A18 were charged for the offence under Sections 147 and 148 IPC. Of them A1, A2, A6, A7, A9 to A15 were found guilty for the offence under Section 148 IPC and each one of them were sentenced to suffer Rigorous Imprisonment for one year; A2 to A6 were charged for the offence under Section 302 IPC for causing the death of D1 and they were found not guilty, instead A2 and A6 were found guilty under Section 304 Part-I IPC and each of them were sentenced to suffer Rigorous Imprisonment for ten years and also to pay a fine of Rs.1,000/- in default to suffer Rigorous imprisonment for three months; A12 and A14 were charged for the offence under Section 302 IPC for causing the death of D2 and they were found guilty and sentenced to suffer imprisonment for life and also to pay a fine of Rs.2,000/- in default to suffer Rigorous Imprisonment for six months; A1, A7 to A11, A13, A15 to A18 were charged for the offence under Section 302 r/w 149 IPC for causing the death of D1 and D2 in furtherance of their common object with A2 to A6, A12 and A14, but they were found not guilty under that section, instead they were found guilty for the offence under Section 326 r/w 149 IPC and each one of them were sentenced to suffer Rigorous Imprisonment for seven years and also to pay a fine of Rs.500/- each and in default to suffer Rigorous Imprisonment for two months; A16 was charged for the offence under Section 326 IPC for causing grievous hurt to P.W.2. The case against A16 was split up and he was acquitted of the said charge. A1 to A15, A17 and A18 were charged for an offence under Section 326 r/w 149 IPC for causing injuries to P.W.2. Of them A1, A7, A9, A10, A11, A13 and A15 were sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.500/- each and in default they shall suffer Rigorous Imprisonment for a period of two months; Charge Nos.7 to 10 were framed for the offence under Section 324 IPC against A1 for causing injuries to P.W.1; against A7 to A9 for causing injuries to P.W.3; against A2, A10 and A11 for causing injuries to P.W.4; against A6, A13 and A15 for causing injuries to P.W.5; against A3, A4, A5, A12, A14, A16 to A18 under Section 324 r/w 149 IPC; A3, A4, A5, A12, A14, A16 to A18 were charged for the offence under Section 324 r/w 149 IPC, A6, A12 and A14 were found guilty. A1, A2, A7, A9, A2, A10, A11, A13 and A15 were convicted under Section 324 IPC and A6, A12 and A14 were convicted under Section 324 r/w 149 IPC and each one of them were sentenced to suffer rigorous imprisonment for one year under the respective charges. Challenging the above conviction A1, A2, A6, A7 and A9 to A15 filed the present Criminal Appeal, whereas the de facto complainant filed the Criminal Revision Case questioning the acquittal of A3 to A5, A8, A17 and A18 and recording of meager sentence against the appellants. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- The accused were the supporters of Congress party and they belongs to Reddy community. The deceased and the material witnesses were the supporters of Telugu Desam Party and they belongs to Balija community. The elections for MPTC & ZPTC were held on 15.07.2001 in the premises of Z.P.High School, Potlapadu. On that day at about 01:30 P.M., P.Ws. 1 to 5 casted their votes and while coming out of the booth A1 to A6 and others who were present at the school abused them in filthy language. When P.W.1 questioned them, A1 beat him with a stick on his head and right elbow. In the meanwhile, D1 came out from the booth. Then A5 and A6 beat him with axes on his head, then he fell down. A3 beat him with a casurinas stick on his right shoulder. A2 beat him with a stick on his mouth and A4 beat him with a stick on his neck. Then on hearing the cries of P.W.1, D2 who was inside the booth rushed to the scene. Then A14 beat him with an axe on his forehead. A12 beat him with a stick on his right temple region. On seeing the same, when P.W.2 questioned A16, he was beaten by him with the reverse portion of the axe on his left shoulder. When he fell down A17 and A18 rolled him kicking and also beat him with hands. Then both the parties attacked each other. P.W.3 was attacked by A8 with a stout stick on his left hand index finger. A9 beat him with a stout stick on his left wrist, A7 beat him with one reverse portion of axe on head. P.W.4 was attacked by A2, A10 and A11 with stout sticks on his head, neck and left shoulder respectively. P.W.5 was attacked by A6 with an axe on his left palm. A13 beat him with a stick on his fore head and A15 beat him indiscriminately with a stick on both sides of head. P.Ws.6, 7, 9 and 20 witnessed the same and P.W.20 then shifted the injured to the hospital. On the way to the hospital D1 succumbed to the injuries. Subsequently on receiving intimation EX.P35 from the Government Hospital, Darsi, P.W.18 the then Head Constable, Darsi Police station rushed to the hospital and recorded the statement of P.W.1 under Ex.P1. He forwarded Ex.P1 to Kurichedu Police Station on point of jurisdiction. On 15.07.2001 at about 09:30 P.M. on receiving Ex.P1 along with Exs.P35 and P36, P.W.19 the then A.S.I., Kurichedu police station registered the same as case in crime No.41 of 2001 and issued F.I.R. under Ex.P37. Subsequently, P.W.25 the then C.I. of police, Darsi circle took over the investigation. During the course of investigation, he visited the scene of offence; examined the witnesses; held scene of offence panchanama in the presence of P.W.20 under Ex.P38; got photographed and prepared the rough sketch of the scene under Ex.P46; visited the hospital; and held inquest over the dead body of deceased No.1 in the presence of P.W.10 under Ex.P12. On 15.07.2001 P.W.21 C.A.S. at C.H.C. examined P.Ws.1, 3 to 5 and issued wound certificates under Exs.P39, 41 to 43 with a opinion that injuries are simple injuries. He also examined P.W.2. On 17.07.2001 he held autopsy over deceased No.1 and opined that the cause of death was due to haemorrhage under Ex.P44. On 17.07.2001 at about 12 noon P.W.25 received F.I.R. in crime No.43 of 2001 lodged by A14 from Head Constable, Kurichedu police station which is a counter case flied against the prosecution party. A1 and A16 in the present case are injured in crime No.43 of 2001 and they were undergoing treatment in Government head quarters hospital, Ongole. P.W.25 deputed P.C.473 to keep them under survilance in Government Hospital, Ongole. During the course of investigation P.W.25 examined P.Ws.1 and 7; seized the blood stained clothes (M.O.1) of P.W.1; recorded the statements of P.Ws.4 and 5 and seized the blood stained clothes; held inquest over the dead body of D2 in the presence of P.W.11 under Ex.P13. On 19.07.2001 P.W.22 Professor of Forensic Medicine held autopsy over the dead body of deceased No.2 and opined that the cause of death was due to head injury and issued Ex.P45 postmortem report. On 20.07.2001 P.W.25 recorded the statement of P.W.2 who visited the police station and sent him to the hospital. P.W.21 examined him and issued Ex.P40 wound certificate opining that the injuries are grevious in nature. On 23.07.2001 P.W.25 apprehended A1 to A4, A8, A10 and A14 in the presence of P.W.8, recovered the material objects. On receiving relevant documents and on completion of investigation P.W.25 filed the charge sheet. 4. On committal, the learned Sessions Judge, framed charges under Sections 148, 302, 302 r/w 149, 326 r/w 149, 324, 324 r/w 149 IPC and when the same were read over to the accused in Telugu, they denied the same and claimed to be tried. 5. In order to substantiate its case, the prosecution got examined P.Ws.1 to 25 and marked Exs.P1 to P49 and Ex.X1, besides the case properties M.Os.1 to 21. After the prosecution evidence is closed, the accused were examined under Section 313 Cr.P.C., for which they denied the incriminating evidence put to them. On behalf of the defence, D.Ws.1 to 10 were examined and Exs.D1 to D24 were marked. 7. The learned Sessions Judge believing the prosecution evidence as trustworthy and rejecting the evidence of the accused as unworthy of credence, convicted the accused and sentenced them to imprisonment as aforementioned. 8. Sri C.Padmanabha Reddy, learned Senior Counsel for the appellants contended that the incident did not happen in the manner projected by the prosecution. P.Ws.1 to 5 though are injured witnesses, the prosecution party was aggressors and both attacked each other. In the first report under Ex.P1, only A1 to A6 names were mentioned and there is no reference to the other accused. As per Ex.P1, A3 to A5 attacked D1, P.Ws.4 and 5 and D2. A1 beat P.W.1 with stick on his head. A3, A4, A5 and A6 attacked D1, P.Ws.4, 5 and D2 with sticks and axes. But in the evidence he gave totally a different version i.e., A14 and A12 beat D2 and their names were not find place in Ex.P1. In respect of attack on D1, A6 alone was convicted along with A2 and acquitted A5. Therefore, A6 is also entitled for acquittal along with A2 on the ground that only one injury was found. Since the names of A12 and A14 beating D2 were not mentioned in Ex.P1, they are entitled for acquittal. Similarly, it is the evidence that A5 and A6 attacked D1, A5 is acquitted, A6 is also entitled for acquittal. Further, it is admitted by the witnesses that till 05:00 PM all were at the place of occurrence till they were shifted to hospital, hence, the statement recorded at 16:30 hours at the hospital is doubtful. Learned Sessions Judge did not consider the omissions, which was elicited from the evidence of the Investigating Officer P.W.23. As per the post mortem certificate issued by the Doctor conducted on D1, at the most A2 and A6 can be convicted under Section 304 Part I, but not for the offence under Section 302 IPC. There is no explanation of injuries received by the accused and in the absence of any premeditation to cause the death of D1 and D2 as there was a sudden provocation, Section 149 IPC cannot be invoked to convict the accused. 10. Learned counsel representing the public prosecutor supported the judgment in all respects, whereas the learned counsel for the complainant who filed criminal revision case conceded that in exercise of the revisional jurisdiction the acquitted accused cannot be convicted. At the most the court can remand the matter for fresh consideration by setting aside the judgment afresh. 11. In view of the rival submissions, the point that arises for consideration in this case is whether the prosecution brings home the guilt of the accused for the offences with which they stood charged and the conviction and sentence recorded by the trial court is liable to be set aside or modified? 12. Undisputed facts as emanated from the charge sheet and the evidence adduced by the prosecution discloses that all the prosecution witnesses belong to T.D.P. group and all the accused belongs to Congress group of Potlapadu village. The said village was admittedly a faction village and divided into two groups viz., Congress and T.D.P. While so, on 15.07.2001, the elections were scheduled for electing the MPTC and ZPTC members in the premises of Z.P.High School at Potlapadu and polling booths were arranged for enabling the voters to caste their votes. P.Ws.1 to 5 are injured witnesses and P.Ws.6, 7 and 20 claimed to be eyewitnesses for the incident. On the date of the incident at 01:30 PM, P.W.1, D1, D2, P.Ws.5 and 20 had been to the polling station to caste their vote for MPTC and ZPTC elections. After casting their votes, when they came out of the booth, A1 to A6 abused them saying that more votes are polled in favour of T.D.P. Then P.Ws.1, 5, 20, D1 and D2 questioned A1 to A5 for their highhanded behaviour. In the meanwhile, the other accused also came to the polling booth and joined A1 to A6. All of them formed themselves into unlawful assembly with common object to do away and went attacking them with deadly weapons. 13. According to the evidence of P.W.1, in the attack D1 and D2 received fatal injuries and P.Ws.1 to 5 received multiple injuries. P.Ws.20 and 16 shifted the deceased and the other injured to Darsi Government Hospital for treatment, whereas D2 was directly taken to Guntur for expert treatment. On the way to the Government hospital, D1 succumbed to injuries. On receipt of the intimation from the Government hospital, Darsi, P.W.18 recorded the statement of P.W.1 under Ex.P1, on which basis the crime was registered. In his statement under Ex.P1, P.W.1 stated that himself, D1, D2, P.Ws.4 and 5 went to the booth at 01:30 PM and after exercising their franchise, some altercation took place and A1 beat him with a stick on his head, A3 to A6 beat D1, P.Ws.4, 5 and D2 with sticks and axes on heads, legs and hands etc., and that he received bleeding injuries, whereas in the evidence, P.W.1 deposed that A1 beat him on his head and right elbow with a stick and caused bleeding injury. Then he sat by holding his head with hands. When D1 came out from the booth after casting his vote, A5 and A6 beat D1 with axes on his head and caused severe bleeding injuries. When D1 fell down A3 beat him with casuarina stick on his right shoulder; A2 beat him with a stick on his mouth;’ A4 beat him with a stick on his neck. Thereby he raised cries. On hearing his cries, D2 who was inside the booth rushed to the spot. A14 beat D2 with an axe on his forehead. A12 beat D2 with stick on his right temple region. A14, A12 and others chased D2 towards booth. A6, A7, A8, A12 and A13 beat P.W.4 with casuarinas stick on his head, both the shoulders and on back. Since blood was oozing out he fell down due to weakness. After that both parties beat each other. He again stated that accused party beat the persons of T.D.P.Party indiscriminately. Himself and other injured were shifted to Government hospital by P.W.6 and Veeraraghavulu. In the cross-examination, he deposed that after exercising the franchise, himself and six other persons came outside and he casted his vote at 01:30 PM. He did not find weapons with the opponent group nor they are having any weapons. No prior incident was taken place. He received the first blow in the incident. The mother of P.W.3 brought the tractor. At about 05:00 PM they were shifted to the hospital in the tractor. Till that time all the injured were at the place of occurrence. The accused and their group members withdrew from the place of offence immediately after the incident. The leaders of the T.D.P. visited the Government hospital and had talks with them on filing of the case against the accused. He further deposed in the cross-examination that A5 hacked D1 on the top of the head. A6 also hacked D1 on the top of head and A6 caused injury to the right side of the injury caused by A5 to D1. 14. P.W.2 another injured witness supported the evidence of P.W.1 and deposed that himself and P.W.7 went to the booth No.13 to caste their votes. By that time, D2 was inside the booth as polling agent. On hearing some cries and galata from outside, D2 went outside the booth. After exercising his franchise, when he was about to leave the booth D2 was coming towards booth with bleeding injuries. A12, A14, A16, A17 and A18 beat him with the reverse portion of the axe on his left shoulder. Then he fell down. A17 and A18 rolled him by kicking and also beat with hands. 15. The evidence of P.W.3 goes to show that himself, D1, P.W.1, P.Ws.4, 5 and some others went to Z.P.High School, to caste their votes. When he was returning from the booth after casting his vote, D1, P.W.1 and others also came out after exercising their franchise. By that time, the accused and their group were abusing the TDP Group on the pattern of votes. When P.W.1 questioned the accused as to why they were abusing T.D.Party, all the accused beat them with sticks, axes and knives. A1 beat P.W.1 with a stout stick on his head and also on his right hand below the elbow. A8 beat him with a stick on his left hand index finger. A9 beat him with a stout stick on his left wrist. A7 beat him with the reverse portion of the axe on his head. A2 beat D1 with a stout stick on his mouth. A3 beat D1 with the reverse portion of knife on his left shoulder. A6 hacked D1 with an axe on his head. A12 beat D2 with a stout stick on left temporal region. A14 hacked D2 with axe on his fore head. A14 also hacked D2 on the middle of the head. In the cross-examination he stated that all the injured witnesses were at one place where the Doctor examined them at Darsi Hospital. Apart from D1, P.Ws.1, 2, 4, himself and other 7 to 8 persons belongs to their group came behind them at about 01:30 PM. P.W.1 casted his vote at first instance followed by himself and D1. 16. P.W.4, another injured witness also deposed that A1 beat P.W.1 with a stout stick on left and right side of the head and also on his right elbow. A2 beat with a stick on the mouth of D1. A3 beat D1 with the reverse portion of knife on his right shoulder. A6 hacked D1 with axe on his head. A2 beat him with a stout stick on his head. All of them beat him with a stout stick on his left and right sides of head. A10 beat him with a stout stick on his neck and also on his left shoulder. A13 beat P.W.5 with a stick on his fore head. A15 beat P.W.5 with a stick on the both sides of the head. A6 beat P.W.5 with the reverse portion of axe on his left palm. A8 beat P.W.3 with a stick on his left index finger. A12 beat D2 with a stick on his head and forehead. In the cross-examination he stated that no police officer recorded the statement of any one of them. They were at Darsi Hospital till 11:00 PM on the midnight. P.W.1 did not give any report to police while he was at Darsi Hospital. No police constable accompanied them to GGH, Guntur. Till they left Darsi Hospital P.W.3 had not come to the hospital. P.W.1 came out side the booth first, followed by D1, himself, P.W.2, P.W.5, P.W.3, P.W.20 and L.W.12. By the time P.W.1 was beaten by the accused, himself, D1, L.Ws.5, 6 and 12 came out side of the booth room. All the injured were beaten by the accused at one time within five minutes. A2 beat him on the middle of his head by coming opposite to him. A2 beat him with pichhi variety of stick which is stout and strong. A10 gave blow to him from his back side. All of them beat him by taking position in front of him towards left corner. Accused did not receive any injuries in the case. 17. P.W.5 another injured also deposed that A1 beat P.W.1 with a stick on his head and on right elbow. A13 beat him with a stick on the forehead. A15 beat him indiscriminately with a stick on both sides of his head. A6 hacked him with axe on his left palm causing bleeding injuries. Then the 2nd deceased came to the spot from polling booth. Thereupon A14 hacked D2 with axe on his head. A2 beat D1 with a stick on his mouth and also on right temple. A6 hacked D1 on his head. On the way to Darsi when they crossed Bodenapalli village, D1 lost his breath. D2 was admitted in the private hospital in Guntur on 18.07.2001. He came to know that D2 died and he was examined by the C.I. of police, Darsi on 18.07.2001. In the cross-examination he deposed that neither the accused nor the persons belonging to the said group received any injury. A15 gave four blows on his head. Himself and other injured were taken to Darsi Hospital on two tractors. One belongs to L.W.9 and another belongs to Yerra Pitchaiah. When police recorded the statement of P.W.1 at Darsi Hospital, himself and other injured were also along with him. A6 hacked D1 on his head. A3 beat D1 with the reverse portion of axe on his neck. 14. The other material eye witnesses to the case of the prosecution is P.Ws.6, 7 and 20. The evidence of P.W.6 goes to show that A1 beat P.W.1 with a stick on his head and on his right elbow. A2 beat D1 with a stick on his mouth. A3 beat D1 with the reverse portion of knife on his right side of the neck. A6 hacked D1 with an axe on his head. Then D2 rushed to the spot from booth. A12 beat D2 with a stick on left side of the fore head. A14 hacked D2 with axe on his head, D2 ran towards booth. A2 beat P.W.4 with a stick on left side of head. A10 beat P.W.4 with a stick on his right side of neck. A11 beat P.W.4 with a stick on right side of the head. A13 beat P.W.5 with a stick on his head. A15 beat P.W.5 with a stick on the left back of his head. A6 hacked P.W.5 with axe on his left palm. A8 beat P.W.3 with a stick on his left wrist. A9 beat P.W.3 with a stick on