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2008 DIGILAW 1070 (AP)

Yadla Bhaskara Rao @ Bhtchibabu v. State of A. P.

2008-12-18

K.C.BHANU, V.ESWARAIAH

body2008
JUDGMENT (Per V. Eswaraiah, J.) This Criminal Appeal is preferred by the appellants-A-1 to A-3 against the judgment, dated 27-07-2006, in S.C.No.306 of 2005 on the file of the VI Additional Sessions Judge (Fast Track Court), East Godavari District, Rajahmundry, wherein A-1 to A-3 were found guilty for the offence punishable under Section 302 r/w 34 of the Indian Penal Code, 1860 (for brevity 'I PC') and accordingly, convicted and sentenced them to suffer life imprisonment and to pay a fine of Rs.590/each, in defaulttc suffer rigorous imprisonment for three months. 2. The brief facts that are necessary for disposal ofthe Criminal Appeal may be stated as follows: PW.2 is the mother of the deceased. A-1 and A-3 are the sons of A-2. The deceased and the accused belong to Peddipalem. The deceased owned 12 acres of land. About one year prior to the date of the incident, he mortgaged four acres of land to A-2 for a period of three years and obtained a loan of Rs.75,000/- from him. There was also an understanding that A-2 would enjoy the crop over the said land in lieu of the interest on loan amount. Subsequently, the deceased raised a dispute with A-2 stating that he was cultivating more than four acres and insisted him to return the same. On the date of the incident, PW.1, PWA and one Chinna went to the fields of the deceased to attend their work and take out saplings of banana plants. Then the deceased, who was sitting on the bund, objected them entering into banana tope and informed them that there was a land dispute pending. In the meanwhile, A-1 and PW.5 went there but they were also not allowed to enter into the banana tope. Then, while they were all sitting on the bund, A-2 and A-3 came there and questioned them. Then A-1 informed them that the deceased objected them, so saying he beat the deceased with a stick on the back side of his head, A-2 and A-3 also beat him with sticks indiscriminately. On seeing the same, PWs.1 and 4 ran and informed PWs.2 and 6 (Village Karanam) about the incident. On the said information, PWs.2 and 3 rushed to the fields and then A-2 informed PW.2 that he caused the death of her son and showed the dead body. On seeing the same, PWs.1 and 4 ran and informed PWs.2 and 6 (Village Karanam) about the incident. On the said information, PWs.2 and 3 rushed to the fields and then A-2 informed PW.2 that he caused the death of her son and showed the dead body. Then, PW.6 recorded the statement of PW.1 and forwarded the same to the police station through PW.8 (Village Servant). On 09-05-2005 at 14.00 hours, on receiving Ex.P-1 report, PW.12 the then Sub-Inspector of Police registered the same as a case in Cr.NoA5 of 2005 and issued FIR-Ex.P-14. Thereafter, PW.13 the then Circle Inspector of Police, Annavaram took up investigation, visited the scene of offence, prepared an observation report-Ex.P-3 and held inquest over the dead body of the deceased in the presence of PWs.6 and 7. He further got the scene of offence photographed through PW.9. Exs.P-9 and P-10 are the photographs and negatives. Then, he forwarded the dead body for post-mortem examination. On 10-05-2005, on requisition, PW.11 the then Civil Assistant Surgeon held autopsy over the dead body of the deceased and opined that the cause of the death was due to head injury. Ex.P-13 is the post-mortem report. On 16-05-2005, PW.13 arrested the accused and in pursuance of their statements (Exs.P-5 to 7) at their instance Mos.1 to 3 (sticks) were recovered in the presence of PW. 7 under Ex. P-8 panchanama. He then got the disputed land measured on 31-05-2005. PW.10-Mandal Surveyor, surveyed the banana tope land and issued Ex.P-12-survey report. Further investigation was taken up by PW.14, the Circle Inspector of Police, who after completion of investigation filed the charge-sheet. 3. The learned Sessions Judge, framed the following charge against the accused: 'That A-1 of you on or about the 9th day of May, 2005 at about 7.30 a.m. on the lease-hold lands of Yadla Atchiraju of Prathipadau along with A-2 and A-3 committed a criminal act viz., A-1 of you beat the deceased Manyala Venkatamana on his head with a stick and later A-2 and A-3 of you joined A-1 in beating the said deceased with sticks indiscriminately and killed the deceased brutally in furtherance of the common intention of all of you to kill the deceased and thereby committed an offence punishable under Section 3021PC read with Section 34 IPC. When the aforesaid charge was read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. In support of its case, prosecution examined PWs.1 to 14 and got marked Exs.P-1 to P-15 besides case properties fy1os.1 to 8. No oral evidence "vas adduced on behalf of the accused, except marking Exs.D1 and 02. 5. Accepting the evidence of the prosecution witnesses, the learned Sessions Judge found all the accused guilty for the offence under Section 302 IPC re8d with 34 IPC and accordingly convicted and sentenced them as stated above. 6. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants accused, submits that admittedly the deceased was the owner of the land and the deceased took a sum of Rs.75,000/- from A-2 and in lieu of the interest payable on Rs. 75,000/-, the deceased gave four acres of the land for cultivation to A-2 for a period of three years with a right to raise crop and enjoy the same. Thus, four acres of the land was in possession of A-2 and he raised banana tope and, therefore, the accused have a right to cut the cluster of the plants. It is stated that as the cluster of the plants were ripped for cutting and if they do not cut on that day, the crop will be damaged and therefore, the deceased has no right to prevent the accused from cutting the crop. When the deceased obstructed A-1 and the coolies engaged by him to cut the crop, the accused exercised their right of private defence. 7. It is further stated that according to Ex. P••1-report, A-1 alone beat the deceased on the back of his head. As per the medical evidence, three injuries were found on the head of the deceased and it is not known which accused caused which injury. As it is not possible to establish which of the accused caused fatal injury exceeding their private defence, the benefit of doing has to be given to all the accused. 8. It is further stated that the learned Sessions Judge erroneously placed reliance on the highly interested and discrepant testimony of PWs.1 to 5, when PWs.1, 4 and 5 are not independent witnesses. The evidence of the alleged eye witnesses is falsified by the medical evidence. 8. It is further stated that the learned Sessions Judge erroneously placed reliance on the highly interested and discrepant testimony of PWs.1 to 5, when PWs.1, 4 and 5 are not independent witnesses. The evidence of the alleged eye witnesses is falsified by the medical evidence. The learned Judge failed to rely on the evidence made by PW.5, who admitted that he was tutored by the police. The deceased himself trespassed into the land leased out to the accused and prevented them from cutting the crop of banana bunches, which were fully ripped. In the absence of any specific overt-acts attributable to A-2 and A-3, it cannot be said that the accused were not having right of private defence to protect their property. 9. It is further stated that the prosecution suppressed the earlier statements of PWs.2 to 5 recorded by PW.13 and the evidence of PWs.7 and 13 relating to arrest of the accused and recovery of Mos.1 to 3 should have been rejected. 10. On the other hand, learned Public Prosecutor submits that admittedly the deceased was the owner of the entire land and according to the evidence of PW.2, who is the mother of the deceased, the deceased was having 12 acres of the land, out of which, four acres was only mortgaged in favour of A-2 with a right to enjoy the crop in lieu of the interest payable for the amount of Rs.75,000/- taken by the deceased. There was a dispute with regard to the excess cultivation of the land over and above 4 acres and therefore, the deceased has got a right to enter into the fields through bunds. In fact, there is no evidence to show that the deceased trespassed into the field of banana tope with a view to commit crime or damage the crop or dispossess the accused. The deceased was unarmed and he was alone in the field, but whereas the accused are three in number and they have several coolies to cut the banana crop and, therefore, it cannot be said that the acts of the deceased would reasonably apprehend in the minds of the accused that he would damage the crop so as to exercise the accused their right of private defence to protect the property. 11. 11. It is further stated that indiscriminate beating of the deceased by all the accused, which resulted in instantaneous death, and after causing the murder, they dragged the body of the deceased into the plantation tope and, therefore, their acts can be culled out that all the accused shared the common intention to kill the deceased. 12. We have heard the rival contentions. 13. PW.1 is a native of Peddipalem. He was engaged as a coolie by the accused to cut banana crop. He knew the deceased and all the accused, who belong to same place. A-1 is the elder son and A-3 is the younger son of A-2 Atchiraju. The deceased died due to beatings of A-1 to A-3. On the date of the incident, he found the deceased was sitting on the bund of his fields. On seeing the coolies, the deceased asked them as to why they came there. Then, they told the deceased that they came to cut saplings of banana plants. The said field consists of banana tope. At that time, the deceased objected them for cutting the saplings by saying that there was a dispute pending between himself and A-2. At his objection, they did not enter into the banana tope and they stopped there. At that time, A-1 came there and about to enter into the banana tope, the deceased objected and stated to A-1 that he would not allow to cut the banana bunches by saying that A-2 was enjoying excess land than what he ought to be enjoyed i.e., more than four acres. On his objection, all of them including A-1 stopped without entering into the banana tope. In the meanwhile, A-2 and A-3 came there and A-2 asked them as to why they are not cutting the bunches of banana fruits. Then, A-1 told him that the deceased was not allowing them to cut banana bunches and by saying so, A-1 beat the deceased on the back side of his head with a stick, which is used for carrying bunches of bananas. Then, A-2 and A-3 also started beating the deceased indiscriminately with sticks called as Gopi Karra and Kavidi Badda respectively. On seeing the same, himself and two sons of one Nagulapalli Kasulu were started running to go into the village. At that time, three other persons by name Abbu (LW.9), Chandrababu (PW.5) and one Lovaraju, were also present. Then, A-2 and A-3 also started beating the deceased indiscriminately with sticks called as Gopi Karra and Kavidi Badda respectively. On seeing the same, himself and two sons of one Nagulapalli Kasulu were started running to go into the village. At that time, three other persons by name Abbu (LW.9), Chandrababu (PW.5) and one Lovaraju, were also present. At the time of their rushing to the village, A-2 threatened them not to reveal to the villagers about the incident. After reaching the village, he informed about the incident to the mother of the deceased and later to their village Karanam. After receipt of intimation, PW.2 went to the scene of offence. Village Karnam-PW.6 reduced his statement into writing and after explaining the contents, he affixed his thumb impression on the statement-Ex.P-1. Then, the village karanam sent EX.P-1 report to the police station through PW.8 village servant. 14. In the cross-examination, it is stated that he gave information about the incident to their village Karanam atabout 1 0.00 a.m. The banana tope was ripped and if the crop was not cut on that day, the banana plants would be damaged. The entire banana tope was raised by A-2. The beating of the deceased was taken place by A-1 to A-3 adjacent to the bund situated in the banana crop raised by A-2. The incident took place in the middle of the four acres and adjacent to one part of the four acres. There was banana tope on either side of the said bund. He does not have any personal knowledge about the dispute that was pending in between A-2 and the deceased in respect of the enjoyment of excess land of banana tope. There was wordily altercation in between A-1 and the deceased, in which A-1 stated that the banana tope of four acres belonged to the accused, as they raised the crop. Then, the deceased had stated that the accused are enjoying the excess land by raising the crop in more than four acres. A-1 beat the deceased on the back side of his head with a stick used for carrying bunches of bananas. The deceased fell down on his back. Then, A-2 and A-3 started beating the deceased indiscriminately. But, he cannot exactly describe which of the accused caused which of the injuries on the deceased. A-1 beat the deceased on the back side of his head with a stick used for carrying bunches of bananas. The deceased fell down on his back. Then, A-2 and A-3 started beating the deceased indiscriminately. But, he cannot exactly describe which of the accused caused which of the injuries on the deceased. All the sticks carried for banana bunches, Gobbu Karra and Kavidi Badda were used by A-1 to A-3 respectively. The suggestion that A-1 to A-3 never beat the deceased with the said sticks was denied. He identified Mos.1 to 3-sticks. It is stated that MO-1 stick used for carrying banana bunches. MO-2 stick called as Gobbu Karra. MO-3 stick called as Kavidi Badda. Mos.1 to 3 were used by the accused for beating the deceased. 15. PW.2, who is the mother of the deceased, stated that her husband got 30 acres of land. She got two sons and three daughters. Her husband gave 12 acres of land each to his two sons. Out of 12 acres, the deceased mortgaged four acres of the land with A-2 and obtained loan of Rs. 75,000/- from him with an understanding that A-2 is entitled to enjoy the crop over the said four acres of land in lieu of the interest on Rs.75,000/-. The said lease was for a period of three years. Her deceased son raised a dispute with A-2 stating that he was cultivating excess land i.e., more than four acres and asked him to return the said excess land. But, she does not know what was stated by A-2 with respect to the said dispute. On the date of the incident, A-2 engaged some coolies to cut the ripen banana bunches.Atabout8.00a.m., PW.1 came and informed herthatA-1 to A-3 be at the deceased and consequently, he died in the banana tope. On receipt of the said information, she went to the scene of offence along with PW.3. On reaching the scene of offence, she found A-1 to A-3 at the scene of offence. Then, all the accused came to her and A-2 stated that they killed the deceased and asked his sons to show the dead body to her by dragging the same before her. She saw the dead body of her son in the fields of Banana crop. The entire dead body seems to be beaten indiscriminately and found beating injuries. Then, all the accused came to her and A-2 stated that they killed the deceased and asked his sons to show the dead body to her by dragging the same before her. She saw the dead body of her son in the fields of Banana crop. The entire dead body seems to be beaten indiscriminately and found beating injuries. The cause for killing of the deceased by accused is the dispute with regard to excess land cultivated by A-2. 16. PW.3, who is the resident of the same village, stated that PW.1 came and informed that A-1 to A-3 killed the deceased. He went along with PW.2 to the filed of the deceased. 17. PWA is a resident of the same village. He is one of the coolies, who went along with PW.1 and one Chinna, to the field of the deceased to take out the saplings of banana plants raised by the accused. Then, the deceased objected them from entering into the banana tope by saying that there is a land dispute pending between him and A-2. Then, A-1 came to them along with PW.5 and others and asked them as to why they are not cutting saplings. Then, they stated to A-1 that they are not allowed to enter into banana tope, as they were objected by the deceased. Then, A-1 and LWs.7 to 9 tried to enter into the banana tope for cutting banana bunches. But, the deceased stopped them by objecting that there is a dispute. In the meanwhile, A-2 and A-3 came there, then A-1 beat the deceased with a stick. Later, A-2 and A-3 were also joined A-1 and beat the deceased with Kavidi Badda and Gobbu Karra. On seeing the same, him self, PW.1 and Chinna rushed from the scene of offence with fear into the village. He stated that A-1 beat the deceased with MO-1, A-2 beat the deceased with MO-2 and A-3 beat the deceased with MO-3. 18. In the cross-examination, it is stated that when A-1 was trying to enter into banana tope, the deceased raised an objection and there was some altercation between them with regard to excess enjoyment of the land by the accused. It is stated that there was no forcible obstruction by the deceased when A-1 tried to pluck banana bunch. A-1 pushed the deceased forcibly with a stick. It is stated that there was no forcible obstruction by the deceased when A-1 tried to pluck banana bunch. A-1 pushed the deceased forcibly with a stick. The deceased never obstructed A-1 by holding a knife in his hand. It is stated that A-1 to A-3 be at the deceased with Mos.1 to 3 respectively. 19. PW.4 firmly withstood to the test of cross-examination stating that there was no physical force on the part of the deceased when the accused and the coolies wanted to cut the banana crop and A-1 to A-3 only beat the deceased indiscriminately with Mos.1 to 3. 20. PW.5 is a native of the same village. He is also one of the coolies engaged by the accused to cut the banana crop along, with PW.1 and others. Though PW.5 corroborated with the deposition of PWs.1 to 4, in the cross examination he stated that he was tutored by the police. 21. Learned counsel for the appellants accused submits that PW.5 is a doubtful witness. 22. We are of the opinion that merely because it is stated that police tutored PW.5 as to what he has to depose, but he never stated that what has been stated in the chief examination is incorrect or untrue or that he never witnessed the incident or that he was not one of the persons, who was present there. 23. PW.6 is working as Assistant Secretary of Podurupaka. He stated that the statement made by PW.1 was reduced into writing and after explaining the same to PW.1, he signed under Ex.P-1 and he made endorsement on Ex. P-2 stating that he was sending the report to the police. He also visited the scene of offence along with police and others. He is a mediator for inquest over the dead body of the deceased and when the police observed the scene of offence under Ex. P-3. While observing the scene of offence, he seized incriminating materials, such as, chappals, blood stained earth, controlled earth, etc. 24. PW.7 is the Panchayat Secretary of Buradakota village. He is not only a mediator but also speaks about the arrest of the accused and in pursuance of their individual confessions, Mos.1 to 3 were seized at the instance of A-1 to A-3 respectively. 25. PW.8 is a village servant, who took Ex.P-1 to the police station. 26. 24. PW.7 is the Panchayat Secretary of Buradakota village. He is not only a mediator but also speaks about the arrest of the accused and in pursuance of their individual confessions, Mos.1 to 3 were seized at the instance of A-1 to A-3 respectively. 25. PW.8 is a village servant, who took Ex.P-1 to the police station. 26. PW.9 is a photographer, who took photographs of the scene of offence under Exs.P-9 and P-10. 27. PW.10 is the Mandai Surveyor, who surveyed the land in Sy.No.22/2 on the requisition made by the Mandai Revenue Officer, Prathipadu on 31-05-2005. He stated that banana crop was in an extent of Ac.4-92 cents and the vacant land is to an extent of Ac.2-68 cents. Ex.P-11 is the requisition given by the Mandai Revenue Officer and Ex. P-12 is the survey report. 28. PW.11 is the Civil Assistant Surgeon, who conducted post-mortem over the dead body of the deceased and found the following injuries:- 1. A contusion wound at right face size 5"x 4". 2. A contusion wound at occipital area size 7" x 9 %,'. 3. An abrasion wound at back of right side of chest 14" x 6". 4. A contusion wound at left back of the chest 3%" x 6". 5. A contusion wound at left back of chest below scapula 3 numbered wound seizes 5 :h" x 4:h", 2" x 4" and 2" x 2". 6. An abrasion wound at right back of knee size 1 %" x 3". 7. An abrasion wound at right leg size 2:h x 2W. 8. A contusion wound at right abdomen size 5" x 6". 9. A contusion wound left arm size 2:h" x4W. 10. A lacerated wound at occipital area size 4" x 4". He stated that skull fracture was seen at occipital area. He gave the opinion that the cause of the death was due to head injury, which lead to cerebral hemorrhage followed depth. It is stated that there are three distinct and separate injuries on the head and they are mentioned as injury Nos.1, 2 and 10. Injury Nos. 2 and 10 are situated on the occipital area. It is not possible to state which of these two injuries in the occipital area caused internal fracture at the occipital area. 29. PW.12 is the Sub-Inspector of Police, who registered a case in Cr. Injury Nos. 2 and 10 are situated on the occipital area. It is not possible to state which of these two injuries in the occipital area caused internal fracture at the occipital area. 29. PW.12 is the Sub-Inspector of Police, who registered a case in Cr. No.45 of 2005 for the offence under Section 302 I PC read with 34 IPC and submitted EX.P-14-FIR along with EX.P-1 to the Judicial Magistrate of First Class, Prathipadu. He also present at the scene of offence along with the Inspector of Police, Prathipadu. He received EX.P-11 covering letter and Ex. P-12- Mandai Surveyor report through the Mandai Revenue Officer. 30. PW.13 is the then Circle Inspector of Police, Annavaram. He speaks about conducting of inquest and observing scene of occurrence and seizure of material objects. He arrested the accessed in the presence of PW.7 and they gave individual confessions and the relevant portions were marked as Exs.P-5 to P-7 and in pursuance of individual confessions of A-1 to A-3, Mos.1 to 3 were seized. 31. As can be seen from the evidence ofthe prosecution witnesses, their evidence with regard to the incident is consistent, trustworthy, uniform, without any discrepancy and inspires confidence to the fact that the deceased, being the owner ofthe land, went into the field alone and verbally objected the accused and the workers engaged by them to cut the banana crop raised by A-2, till the dispute is settled on the ground thatA-2 was cultivating the land more than what he is entitled to do so and in fact, the survey report of PW.1 0 also goes to show that what was leased out is only four acres, but the banana crop VJas raised in AcA-92 cents and, therefore, it cannot be said that there was no justification on the part of the deceased in raising a dispute requesting the accused to settle the same. But, the accused, without settling the dispute, forcibly attacked the deceased and caused injuries and one such injury is proved to be fatal. PWs.1, 4 and 5 are the direct eye witnesses, who have consistently stated that A-1 beat the deceased on the back of the head, A-2 and A-3 beat the deceased indiscriminately. It is stated that after causing the death, the accused dragged the body of the deceased into the field and the same was witnessed by PWs.1 , 4 and 5. It is stated that after causing the death, the accused dragged the body of the deceased into the field and the same was witnessed by PWs.1 , 4 and 5. In view of the aforesaid evidence ayailable on record, the learned senior counsel does not dispute the cause of the incident, but only takes the right of private defence of the property. 32. Section 97 IPC reads as follows:- "97. Right of private defence of the body and of property:- Every person has a right, subject to the restrictions contained in Section 99, to defend - First: His own body, and the body of any other person, against any offence affecting human body; Secondly:- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit heft, robbery, mischief or criminal trespass." 33. Learned counsel for the accused appellants submits that in the instant case, Section 991PC has no application, as it is not the case of the accused that the deceased wanted to cause any bodily injury to any of the accused and therefore, he submits that second limb of Section 971PCwili apply, as admittedly, the accused are the lessees of the land of four acres and though the deceased was the owner of the entire land, he has no right to enter into the banana tope raised by the accused and that the accused have a right to protect their banana crop and, therefore, they have right of private defence to protect their property. 34. We are of the opinion that the right of private defence of the property under second limb of Section 971 PC will apply to the persons to protect their property against any acts, which fall under the offence of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. 35. In the instant case, as per the evidence available on record, there are no averments or allegations that the deceased made an attempt of theft or robbery or mischief or criminal trespass. Admittedly, the deceased was the owner of the land and in fact, apart from acres of the land leased out in favour of A-2, he got 8 more acres. Admittedly, the deceased was the owner of the land and in fact, apart from acres of the land leased out in favour of A-2, he got 8 more acres. There are common bunds to go to the filed of the deceased. The evidence of PW.10, who conducted survey and gave Ex. P-12-survey report, and the rough sketch of the scene of offence, go to show that there are bunds in between the plantation tope and the vacant land of the deceased and also in the midst of the plantation tope. Actually, the offence was taken place at the bund near the bore shed, but the body was dragged on to the field of the plantation tope. It cannot be said that the deceased has no right to go to his remaining field from the bunds. However, as there was no physical force on the part of the deceased preventing the accused to go to their plantation crop and the manner in which the accused indiscriminately beat the deceased causing death indiscriminately go to show that in furtherance of their common intention only they have killed the deceased. Therefore, we are of the opinion that second limb of Section 97 IPC has no application to the present facts and circumstances of the case. 36. In view of the aforesaid facts and circumstances of the case, we are of the opinion that the learned Sessions Judge rightly convicted and sentenced the accused as stated above. Therefore, we do not find any grounds to interfere with the findings recorded by the learned Sessions Judge. 37. Accordingly, the Criminal Appeal is dismissed.