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2006 DIGILAW 1400 (AP)

KOPPULA REEZU LACHAIAH v. STATE OF A. P.

2006-11-13

GOPALA KRISHNA TAMADA

body2006
( 1 ) THIS criminal appeal is preferred by the appellants/a1 to A3 in Sessions Case no. 303 of 1997 on the file of the Court of the District and Sessions Judge, warangal, questioning their conviction for the offence punishable under Section 326 read with 149 of the Indian Penal Code, 1860 (for short "ipc") and sentence of rigorous imprisonment for a period of three years imposed by the Court below, vide judgment dated 24. 03. 2000. ( 2 ) THE case of the prosecution, in brief, is as follows. There were civil disputes between the accused and the victims family. While so, on 03. 04. 1995 there was an altercation between one Yesupadam, A1 and A3 on one hand and P. W. 2 on the other, with regard to storing of red gram straw in the field. On the same night the straw was set to fire, for which the victims family suspected the involvement of accused and the said Yesupadam, and thereby lodged a complaint against them. On the next day i. e. , on 04. 04. 1995 at about 8. 00 P. M. , when p. W. 2 was standing in front of the house of his elder brother Venkataratnam, A1 went there and picked up quarrel with him for lodging a complaint against them for the offence of arson, and both of them started abusing each other. Meanwhile, A2 and A3 joined with A1 and forcibly took P. W. 2 towards their house, where A1 to A5 attacked him. A1 beat him with an axe, A2 beat him with stick and A3 to A5 beat him with hands indiscriminately resulting severe bleeding injuries to P. W. 2, and P. W. 2 fell unconscious. The wife of P. W. 2, who was examined as P. W. 1 witnessed the entire incident and lodged a complaint against the accused at 6. 30 A. M. , on the next day, which was registered as a case in crime No. 39 of 1995 by the Seerole Police for the offences punishable under sections 148 and 307 read with 149 IPC against the accused and investigated into. During the course of investigation, the police recorded the statements of the witnesses and referred the injured to the Government Hospital, Mahabubabad for treatment. Panchanama of the scene of offence was conducted and subsequently on 30. 05. During the course of investigation, the police recorded the statements of the witnesses and referred the injured to the Government Hospital, Mahabubabad for treatment. Panchanama of the scene of offence was conducted and subsequently on 30. 05. 1995 A1 to A5 were arrested and based on their confession m. O. 1-axe was seized from A1 and M. O. 2 stick was seized from A2 in the presence of mediators. After completion of investigation, charge sheet was laid against the accused, which was taken on file as P. R. C. No. 19 of 1997 by the learned judicial Magistrate of First Class, Mahabubabad. ( 3 ) AS the offence punishable under Section 307 IPC is exclusively triable by the Sessions Judge, the Committal Magistrate committed the PRC to the Sessions division, Warangal, and it was numbered as Sessions Case No. 303 of 1997. ( 4 ) THE Sessions Judge, after appearance of the accused, framed charges under sections 148 and 307 read with 149 IPC against the accused, read over and explained to them, for which they pleaded not guilty and claimed to be tried. ( 5 ) TO substantiate its case, the prosecution examined P. Ws. 1 to 10 and marked exs. P1 to P7 and M. Os. 1 and 2. No oral evidence was adduced, but Exs. D1 to D5 were marked on behalf of the defence. Considering the above said oral and documentary evidence, the Court below found all the accused not guilty of the offence punishable under Section 148 IPC, and also found A4 and A5 not guilty of the offence punishable under Section 307 IPC and accordingly acquitted them of the said offences. However, the Court below, holding that the offence punishable under Section 307 IPC is not made out, found the appellants guilty of the offence punishable under Section 326 read with 149 ipc and convicted them as stated supra. Aggrieved by the said conviction, this appeal is preferred by A1 to A3. ( 6 ) THE learned counsel for the appellant, Sri P. Prasad, strenuously contended that the Court below having given a finding that there is no unlawful assembly, ought not to have convicted the appellants for the offence punishable under Section 326 read with 149 IPC. Aggrieved by the said conviction, this appeal is preferred by A1 to A3. ( 6 ) THE learned counsel for the appellant, Sri P. Prasad, strenuously contended that the Court below having given a finding that there is no unlawful assembly, ought not to have convicted the appellants for the offence punishable under Section 326 read with 149 IPC. He further contended that to attract the provisions of section 149 IPC, there must be five or more persons, as defined under Section 141 IPC and as there are only three persons, i. e, the appellants, the Court below ought not to have convicted the appellants holding as if they are members of unlawful assembly. It is further contended that even if the evidence of the prosecution witnesses is accepted, there is absolutely no allegation against appellants 2 and 3, and thus the prosecution miserably failed to bring home the guilt of appellants 2 and 3, and even to base a conviction against A1, though p. Ws. 1 and 2 have spoken about the participation of A1, they state that A1 caused two injuries one with an axe and other with the butt of the axe, but the evidence of the doctor-P. W. 8 falsifies the said evidence. It is his further contention that having accepted that the original first information report is suppressed, the Court below ought not to have convicted the appellants at all for any of the offences and therefore he prays that considering the above circumstances the appellants may be acquitted. ( 7 ) THE learned Additional Public Prosecutor opposed the said contentions stating that merely because the original first information report is not brought into existence, no adverse inference can be drawn as it is not an encyclopedia of all the facts, and it is only an irregularity and as Xerox copy of the said report is marked as Ex. P6, it does not destroy the case of the prosecution. It is further submitted that the evidence of the prosecution witnesses clinchingly establishes that the appellants have committed the offences with which they are charged and the learned trial Judge on an analysis of the entire evidence on record found the appellants guilty of the above offence, which needs no interference. It is further submitted that the evidence of the prosecution witnesses clinchingly establishes that the appellants have committed the offences with which they are charged and the learned trial Judge on an analysis of the entire evidence on record found the appellants guilty of the above offence, which needs no interference. ( 8 ) IN the light of the above submissions, the provisions regarding the offences against public tranquility are to be seen, which are dealt with in chapter VIII IPC. Section 141 IPC defines what the unlawful assembly is, and section 143 IPC provides for punishment for unlawful assembly. Section 146 IPC defines rioting and the punishment for rioting is provided under Section 147 ipc. Section 148 IPC deals with rioting armed with deadly weapons, whereas under Section 149 IPC every member of an unlawful assembly is guilty of the offence committed in prosecution of the common object. According to section 141 ipc, an assembly of five or more persons with the common object of committing an offence constitutes unlawful assembly. From the expression used in Section 141 ipc, it is clear that to call the assembly of persons with common object as unlawful assembly, there must be five or more persons in that assembly. ( 9 ) IN the instant case, the Court below has given a clear finding that the appellants and A4 and A5 have not committed the offence of rioting armed with deadly weapons and thus acquitted all of them of the charge punishable under section 148 IPC. Similarly, the Court below also acquitted A4 and A5 of the charge punishable under Section 307 read with 149 IPC. When once the Court below disbelieved the version of the prosecution about the involvement of A4 and a5 in the unlawful assembly, there remains only three accused and as discussed above with the three persons it cannot be said that there is an unlawful assembly, as defined under Section 141 IPC. ( 10 ) A combined reading of Sections 141 and 149 IPC shows that an assembly of less than five persons is not an unlawful assembly within the meaning of Section 141 IPC and conviction cannot be based for the offence with the aid of Section 149 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. The existence of an unlawful assembly is a necessary postulate for invoking Section 149 IPC. Where the existence of such an unlawful assembly is not proved, conviction with the aid of Section 149 IPC cannot be recorded or sustained. The failure of the prosecution to show that the assembly was unlawful must necessarily result in the failure of the charge under Section 149 ipc and consequently conviction of the appellants for the offence under Section 326 read with 149 IPC cannot be sustained. ( 11 ) WHEN once this Court finds that conviction under Section 326 read with 149 ipc is not sustainable, it is necessary to look into the individual acts committed by the appellants to base conviction for the offence punishable under section 326 IPC. The Xerox copy of the first information report given by P. W. 1-Boddu Padma, is marked as Ex. P6, in which no specific overt acts are attributed to any of these appellants. It reads as follows:"yesterday i. e. , on 4. 4. 1995 at night at about 8. 00 P. M. , my husband was coming from bazaar to my house, and when he reached near the house of my brother-in-law by name Venkataratnam, my villagers i. e, Koppula Reezu S/o Lachaiah, 2) Koppula Uppalaiah, 3) Mettu Uppalaiah S/o Venkatramaiah, 4) Koppula Veeranna S/o Ramaiah, 5) Koppula Pullamma d/o Lachaiah, 6) Koppula Neelamma W/o Yesupadam, 7) Koppula Nagamma W/o Raju, 8)Koppula Jayamma W/o Reezu, lifted my husband and thrown him by the side of the house of Koppula Uppalaiah and beat him with axes and sticks indiscriminately. Koppula Reezu said to kill him and there will not be any trouble and beating my husband on his head and the remaining persons were beating with sticks indiscriminately. When my husband fell unconscious, they went away thinking that he dead. I raised hue and cry by weeping. The red gram straw which was kept by us on the boulder, has been shifted by the said persons to our house and set it fire by them. As such then my husband abused stating that a case will be filed in the police station, they attacked my husband and tried to kill him and beat him with axes and sticks. Therefore, I pray to take action against them. As such then my husband abused stating that a case will be filed in the police station, they attacked my husband and tried to kill him and beat him with axes and sticks. Therefore, I pray to take action against them. " ( 12 ) DURING the course of evidence, the informant-P. W. 1 stated that A1 went to the scene of offence and started abusing her husband-P. W. 2 (injured) for lodging a report against them. A2 and A3 also joined A1 in abusing P. W. 2 and thereafter all the accused lifted P. W. 2, took him towards their house. A4 sprinkled chilly powder, A5 beat P. W. 2 with a stick on his back, and A1 axed him on his head and also beat with the butt of the axe on his mouth resulting injuries on his teeth and his two teeth were also broken. Similar is the evidence of P. W. 2. ( 13 ) THIS Court is not concerned with A4 and A5 as the Court below acquitted them of the offences with which they were charged and this appeal is preferred by A1 to a3 questioning their conviction. The evidence of P. Ws. 1 and 2 establishes that a1 alone hit P. W. 2 with the butt of the axe and also axed him on his head, but nothing is alleged against appellants 2 and 3-A2 and A3. Therefore, this court is of the view that the appellants 2 and 3 are entitled to be acquitted. ( 14 ) SO far as the first appellant/a1 is concerned, it is the contention of the learned counsel for the appellant that the original first information report is suppressed and thus, the first appellant-A1 is also entitled for acquittal. This Court finds no force in the said submission. May be the original first information report is not marked as an exhibit, but as rightly contended by the learned Additional Public Prosecutor, it is only an irregularity, for which already departmental proceedings are initiated against the concerned officers. Therefore, no adverse inference can be drawn from that lapse. ( 15 ) P. WS. 1 to 4 have spoken in one voice as to how the alleged offence took place. P. Ws. Therefore, no adverse inference can be drawn from that lapse. ( 15 ) P. WS. 1 to 4 have spoken in one voice as to how the alleged offence took place. P. Ws. 1 and 2 have stated that A1 axed P. W. 2 on his head and also beat him with the butt of the axe on his mouth resulting injuries on his teeth and two of his teeth were also broken. But the said evidence of P. Ws. 1 and 2 is totally negatived by the evidence of the doctor-P. W. 8. According to P. W. 8 and Ex. P5-wound certificate issued by him, there is only one injury on the head of P. W. 2, but no injury on the mouth, and even the above injury might have been caused with a blunt object, but not with a weapon like M. O. 1. In this context it is necessary to extract the relevant portion in the evidence of P. W. 8 and Ex. P5-wound certificate and it is as follows: evidence of P. W. 8: "a fracture of skull on the right parietal bone. It is a grievous injury and it can be caused by a blunt weapon like stick or rod. Ex. P5 is the wound certificate issued by me. M. O. 1 cannot cause the injury mentioned in Ex. P5 as it is an axe and M. O. 2 only can cause the injury mentioned in Ex. P5. Ex. P5-Wound certificate: Fracture of skull on the right parietal bone, caused by a blunt weapon, and the injury is grievous in nature. " ( 16 ) FROM the above it is clear that the injuries explained by P. Ws. 1 and 2 do not tally with the injury found by P. W. 8 and mentioned in Ex. P5, and thereby the version of the prosecution that A1 axed P. W. 2 on his head and beat him with the butt of the axe on his mouth cannot be believed. Therefore, this Court is of the view that the prosecution also failed to establish the guilt of the first appellant beyond all reasonable doubt and thereby first appellant is entitled to benefit of doubt. ( 17 ) IN the result, the Criminal Appeal is allowed and the judgment dated 24. 03. Therefore, this Court is of the view that the prosecution also failed to establish the guilt of the first appellant beyond all reasonable doubt and thereby first appellant is entitled to benefit of doubt. ( 17 ) IN the result, the Criminal Appeal is allowed and the judgment dated 24. 03. 2000 passed by the learned Sessions Judge, Warangal, in S. C. No. 303 of 1997 to the extent of convicting the appellants for the offence punishable under Section 326 read with 149 IPC is set aside.