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2004 DIGILAW 841 (AP)

Pallepu Kistaiah v. State Of A. P.

2004-08-13

P.S.NARAYANA

body2004
P. S. NARAYANA, J. ( 1 ) HEARD Sri A. Prabhakar Rao, counsel representing the appellants/accused 1 to 3 and the learned Additional Public prosecutor. ( 2 ) THE case of the prosecution is that there was prior enmity between the appellants/accused and Peda Narasimhulu, sammaiah and Gopi and the appellants/ accused were waiting for a chance to attack them and accordingly on 13-6-1994 at about 8. 30 p. m. , L. Ws. 2 and 3 were returning to their house on cycle and when they passed the Fire Station, the appellant/ a-1 to A3 armed with stones and attacked them. Accused No. 2 kicked on the stomach of LW-3 due to which he fell down on the ground. Accused No. 2 took LW-2 to the nearby bushes and beat him on the head with the axe of Accused No. 3. Accused no. 1 beat with iron rod and Accused No. 2 beat him with hands. LW-2 managed to escape and rushed to the house and informed LW-1, LW-5 (Vallepu Yadagiri) and LW-6 (Vallepu Narsamrna) had rushed to LW-2 and rescued him. On a complaint a case in Cr. No. 81/94 Sections 324 read with section 34 IPC was registered and the statement of witnesses were recorded and the injured were referred to MGM Hospital. It is the version of the prosecution that subsequent thereto the injured died on 17-7-1994 for the injuries sustained and hence Crime no. 100/94 was registered under Section 174 cr. PC and inquest was conducted over the dead body of the deceased and later autopsy was conducted and the same was converted into PRC and cognizance was taken under Section 302 IPC read with section 34 IPC. ( 3 ) THE learned III Additional Sessions judge, Warangal had recorded the evidence of PW-1 to PW-11 and marked Exs. P-1 to p-10 and ultimately arrived at the conclusion that the appellants/accused are not guilty for the offence under Section 302 IPC but the appellants/accused were found guilty for the offence under Section 342 IPC read with section 34 IPC. Aggrieved by the same, the present appeal is filed. ( 4 ) SRI A. Prabhakar Rao, Counsel representing the appellants would submit that except the evidence of PW-2 there is no other evidence and Ex. P3, wound certificate, was issued by PW-6 who had deposed that all the injuries are simple injuries. Aggrieved by the same, the present appeal is filed. ( 4 ) SRI A. Prabhakar Rao, Counsel representing the appellants would submit that except the evidence of PW-2 there is no other evidence and Ex. P3, wound certificate, was issued by PW-6 who had deposed that all the injuries are simple injuries. The learned Counsel also explained that PW-2 is only a planted witness and the injuries which were spoken to by PW-2 are not reflected in the wound certificate issued by PW-6 i. e. , in Ex. P3. In the absence of corresponding injuries, on the strength of the evidence of PW-2 alone, convicting the appellant/accused would be totally unjustified. ( 5 ) THE learned Additional Public prosecutor on the other hand would contend that in the facts and circumstances the learned Judge had arrived at the correct conclusion that the guilt of the appellants/ accused under Section 302 IPC had not been established and recorded acquittal. But however, in view of the evidence of PW-2 and PW-6 inasmuch as the guilt of the appellants/accused so far as it relates to section 324 IPC and Section 324 IPC read with Section 34 IPC are concerned had been established, rightly the appellants/accused were convicted. ( 6 ) PW-1 is the father of the deceased and he is not an eye-witness. No doubt he deposes about all the other aspects. The evidence of PW-2 is crucial. This witness, pw-2, deposes that Sammaiah is his elder brother and PW-1 is his father and the offence had taken place three years back and in the morning they all went to quarry for work and his father and other brothers except Samrnaiah after finishing the work proceeded to the house ahead of them. PW-2 and Sarnmaiah were returning to the house from work spot after taking tea in the canteen at the Bus Stand. At the Bus stand they stayed for some time as it was raining and at 8 p. m. , they started from the Bus Stand on their cycle to their house. By the time they reached the place opposite to Fire Station Accused Nos. 1 to 3 came. Accused No. 2 caught hold of PW-2 and beat him. Accused No. 1 beat Samrnaiah with rod on his face i. e. , the scapular region. Accused No. 3 beat on the head of Samrnaiah with axe. By the time they reached the place opposite to Fire Station Accused Nos. 1 to 3 came. Accused No. 2 caught hold of PW-2 and beat him. Accused No. 1 beat Samrnaiah with rod on his face i. e. , the scapular region. Accused No. 3 beat on the head of Samrnaiah with axe. Accused No. 2 beat Samrnaiah with hands. PW-2 immediately ran into the house and informed the incident to his father and they all came to the spot. PW-2 further deposed that by the time they reached the spot the deceased Sarnmaiah was lying by the side of the road with injuries and they took him to the Police station and from Police Station they proceeded to the hospital and police examined him. PW-2 s father gave report and for one week Sarnmaiah took treatment in the hospital and as per the advise of the Doctor they had taken him to the house. The injury was not cured and they brought him to the hospital and four days later he died. Sarnmaiah informed in the police Station about the incident. This witness, PW-2, was cross-examined at length. In the cross-examination also he had deposed that Accused Nos. l and 3 attacked his brother and Accused No. 2 attacked him and meanwhile he fell down and immediately he did not go to the house and after Accused No. 2 beat him and accused Nos. 1 and 3 beat Samrnaiah, he went to the house. No doubt he had deposed that he had received injury on his abdomen. Some comment had been made by the learned Counsel representing the appellants/ accused that there is no corresponding injury and hence this exaggerated version of PW-2 cannot be believed. Several suggestions were put to him and this witness had denied the suggestions. It was specifically stated that there were previous grudges between this witness and the appellants/accused and because of previous grudges these appellants/accused were falsely implicated in the case. ( 7 ) PW-3 is yet another brother and he deposed about the previous disputes and all other aspects and no doubt he is not an eye-witness to the incident. He also corroborates the evidence of PW-1, his father, and deposed all other aspects relating to the incident except what actually had happened at the relevant point of time. PW-4 signed the inquest report Ex. P-2. PW-5 signed Ex. He also corroborates the evidence of PW-1, his father, and deposed all other aspects relating to the incident except what actually had happened at the relevant point of time. PW-4 signed the inquest report Ex. P-2. PW-5 signed Ex. P-2 inquest report. PW-6 is yet another important witness, the Doctor who deposed that he was working as civil Assistant Surgeon at M. G. M. Hospital, warangal and on requisition of SHO subedari he examined Samrnaiah, the deceased and found the following injuries :1. Contusion 5 cm x 1 cm x 1 cm on fore-head. 2. A lacerated injury 2 cm x 1 cm x 1 cm on right cheek. 3. A lacerated injury 1 cm x 1 cm on right middle finger. PW-6 further deposed that all the injuries are simple in nature and caused by a blunt weapon. X-ray of skull was taken and the age of the injuries was within 24 hours and in the X-ray no fracture of skull was seen. He further deposed that the patient was admitted in Neuro Surgery Ward and he issued Ex. P-3 wound certificate. On the basis of this Ex. P-3 and the evidence of PW-3, submissions at length were made by the learned Additional Public Prosecutor that the conviction under Section 324 IPC and also under Section 324 IPC read with section 34 IPC awarded by the learned Judge can be sustained. ( 8 ) PW-7 is the Head Constable who had deposed about PW-1 lodging the complaint Ex. P1 and his registering the case in Crime No. 81/94 under Section 324 IPC and issuing FIR. Ex. P4 is the FIR and he had examined PW-1 to PW-3 and he recorded their statements and also recorded the statements of the deceased Sammaiah. Ex. P5 is the statement of the deceased sammaiah. No doubt he had denied in cross-examination that Ex. P5 is not the statement given by the deceased Sammaiah and the same was recorded by him on his own accord. ( 9 ) PW-8 is Dr. Ravinder Reddy who is the Professor or Forensic Science, Gandhi medical College at Hyderabad who conducted post-mortem examination over the dead body of the deceased. The evidence of this witness may not be so material in view of the fact that acquittal had been recorded relating to Section 302 IPC. ( 9 ) PW-8 is Dr. Ravinder Reddy who is the Professor or Forensic Science, Gandhi medical College at Hyderabad who conducted post-mortem examination over the dead body of the deceased. The evidence of this witness may not be so material in view of the fact that acquittal had been recorded relating to Section 302 IPC. ( 10 ) PW-9 is the Sub-Inspector of Police who deposed about the arrest of Accused nos. 1 to 3 and sending them to judicial remand. PW-10 is the Circle-Inspector of Police who had deposed about all the details of investigation. PW-11 is the assistant Commissioner of Police who had deposed about the suspicious death and the details of investigation and also had deposed how the proceedings in Cr. No. 81/ 94 under Section 324 IPC were stopped and a request was made that charge-sheet will be filed under Section 302 IPC in the said crime in view of the subsequent events. It is needless to say that the learned Judge had recorded acquittal as far as the charge under Section 302 IPC is concerned. ( 11 ) NO doubt as already referred to supra, the Doctor (PW-6) deposed that all the injuries are simple injuries. The main thrust of the argument of the learned Counsel for the appellants/accused is that inasmuch as all the overacts spoken by PW-2 are not reflected by the corresponding injuries in the wound certificate, the evidence of PW-2 cannot be believed and on the strength of this evidence alone conviction cannot be sustained. This Court is not inclined to accept with the said reasoning for the reason that no doubt PW-2 had spoken about several overt acts and merely because in relation to all the overt acts there are no corresponding injuries, the very incident cannot be disbelieved. It is the case of the prosecution that the three appellants/ accused attacked and the conviction is under Section 324 IPC and also under section 324 IPC read with Section 34 IPC. It is needless to say that when Section 34 ipc also is charged, any over act attributed to one of the accused and the injuries caused thereby, the other accused also may have to be fastened with criminal liability. It is needless to say that when Section 34 ipc also is charged, any over act attributed to one of the accused and the injuries caused thereby, the other accused also may have to be fastened with criminal liability. In this view of the matter, the learned Judge had arrived at the correct conclusion in convicting the appellants/accused under section 324 IPC and also under Section 324 ipc read with Section 34 IPC. But however in the light of the nature of injuries as can be seen from Ex. P3 and also the evidence of pw-2, the sentence imposed as against the appellants/accused appears to be on higher side especially in the light of the fact that the alleged blow with axe is not evidenced by any corresponding injury in the medical evidence. Hence, the conviction under section 324 IPC and also under Section 324 ipc read with Section 34 IPC as against the appellants/accused no doubt are hereby confirmed, but the sentence is modified and the same is reduced to simple imprisonment for three months. However the imposition of fine of Rs. 1,000/- on Accused No. 3 and rs. 500/- each on Accused Nos. 1 and 2 as specified by the learned Judge are hereby confirmed. It is brought to the notice of the court that the fine amounts had already been paid. The bail-bound of the appellants/ accused shall stand cancelled. It is needless to say that the appellants/accused are entitled to set off relating to the period of imprisonment already undergone, if any. The appellants/accused to serve rest of the sentence. The criminal appeal shall stand dismissed subject to the modification of sentence.