Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 447 (AP)

Konikineni Rama Koteswara Rao v. State of A. P.

2014-03-20

L.N.REDDY, M.S.K.JAISWAL

body2014
JUDGMENT : L.N. Reddy, J. 1. As many as 20 accused were tried by the Court of X Additional District & Sessions Judge (F.T.C.), Guntur at Narasaraopet in S.C. No. 29 of 2008 for committing the murder of the accused, by name Kodhari Ramaiah, in the afternoon of 26.02.2007 in Rupenagunta Village, Nakerikal Mandal. 2. The case of the prosecution was that on 26.02.2007, the villagers of Rupenagunta, owing alliance to Telugudesam party, planned to install the statue of late Sri N.T. Rama Rao in the middle of the village. Ramaiah, the deceased, was said to be a person eking out livelihood through labour work, and few months before the incident, he purchased an auto-rickshaw to ply between Rupenagunta and Narsaraopet. P.W. 2, Saidulu, was said to have been engaged as a driver. 3. On 26.02.2007, when the deceased was in his house together with P.W. 1, his mother, P.W. 2 came and informed them that Vadlamudi Appa Rao, A7, stopped the auto-rickshaw and broke the windscreen. On receiving the information, the deceased, P.W. 1 and P.W. 2 are said to have gone to the place where A7 was present. They are said to have found A2 and A3 at that place and when the deceased was asking A7 as to why he has broken the glass of the auto-rickshaw, A7 was said to have grew wild and attacked the deceased, A2 hacked him with an axe on the head and A3 hit him with a stick. The deceased is said to have fell down on the spot with injuries and when P.Ws. 1 and 2 raised cries, A2, A3 and A7 are said to have run away. Thereafter, the deceased is said to have been shifted to the Government Hospital, Narsaraopet for treatment. The statement of P.W. 1 was recorded on 26.02.2007 at 5.30 p.m. By that time, the deceased was said to be undergoing treatment. 4. Crime No. 14 of 2007 was registered by Nakerikal Police Station mentioning the offences punishable under Sections 307, 324 read with Section 34 and 427 I.P.C. The deceased is said to have succumbed to injuries on 01.03.2007. The provision in the F.I.R. was altered and the steps required under law, such as preparation of scene of offence panchanama, inquest and post-mortem were taken. During the course of investigation, the involvement of other accused is said to have been noticed. The provision in the F.I.R. was altered and the steps required under law, such as preparation of scene of offence panchanama, inquest and post-mortem were taken. During the course of investigation, the involvement of other accused is said to have been noticed. Therefore, a comprehensive charge sheet was filed alleging offences against A1 to A20 under various provisions of law. On receipt of the same, the trial Court framed six charges in different combinations of the accused. They pleaded not guilty. Trial was taken up, wherein P.Ws. 1 to 32 were examined and Exs. P1 to P51 were marked. M.Os. 1 to 4 were taken on record and the contradictory statements of P.W. 8 were taken on record as Exs. D1 and D2. The accident register maintained by the Government Hospital was marked as Ex. X1. 5. Through its judgment, dated 04.01.2010, the trial Court acquired A1 and A3 to A20, but convicted A2 alone for the offence punishable under Section 302 I.P.C. Sentence of imprisonment for life and fine of Rs. 1,000/-, in default to undergo simple imprisonment for a period of one month was imposed. Hence, this appeal. 6. Sri T. Bal Reddy, learned Senior Counsel for A2, submits that the trial Court committed mistake at the stage of framing the charges. According to him, specific allegation in charge No. 3 was made only against A1, A2 and A5, and though the charged accused were three in number, the trial Court framed it under Section 302 read with Section 149 I.P.C. He further submits that whatever may have been the circumstances under which such a charge was framed, once A1 and A5 were acquitted, there does not exist any basis to convict A2. He further submits that the deposition of P.W. 1 is to the effect that the deceased was in a position to speak when he was undergoing treatment in the Government Hospital and that his statement was recorded by the police, whereas that was not made part of the record and that the same amounts to withholding of vital information to the Court. 7. Learned Senior Counsel further submits that the place where the incident is said to have occurred is in the middle of the village and hundreds of persons gathered to witness an important function and still, the name of not even one independent person was mentioned in Ex. P41. 7. Learned Senior Counsel further submits that the place where the incident is said to have occurred is in the middle of the village and hundreds of persons gathered to witness an important function and still, the name of not even one independent person was mentioned in Ex. P41. He further submits that in Ex. P41, P.W. 1 did not name the other accused and the occasion was availed by the police as well as the opposite political groups to rope in, as many as opponents, as possible. He contends that out of 22 non-official witnesses, all, except P.Ws. 1, 20, 21 and 22, turned hostile and still, the trial Court singled out A2 and convicted him. He argued that the evidence of P.Ws. 20, 21 and 22 was only in relation to a step in the course of investigation and not of any direct consequence. 8. Learned Additional Public Prosecutor, on the other hand, submits that any defect in framing of the charge cannot have any adverse effect upon the trial and disposal of the case by a Court. She contends that even if there exists any defect in framing of the charge, it does not have any effect upon the trial, or the outcome of the case; in view of Section 215 Cr.P.C. She submits that notwithstanding the fact that quite large number of witnesses have turned hostile, the trial Court found cogent evidence against A2, particularly, the eye-witness account of P.W. 1, and accordingly, he was convicted. Learned Additional Public Prosecutor further submits that even where an individual is said to be part of an unlawful assembly, such a person can be certainly convicted even while others are acquitted, if the evidence on record supports it. 9. The very fact that as many as 21 persons were arrayed as accused discloses the dimensions of the case and its political flavor. The unfortunate person, who lost the life, is an ordinary individual, who was eking out his livelihood by running an auto-rickshaw. Quite large number of persons gathered at the centre of the Village on 26.02.2007 on the eve of installation of the statute of late Sri N.T. Rama Rao. The circumstances under which, the ire of some of the persons came to be exhibited against the auto-rickshaw of the decreased, are not explained in detail. No specific complaint as such was given by anyone. The circumstances under which, the ire of some of the persons came to be exhibited against the auto-rickshaw of the decreased, are not explained in detail. No specific complaint as such was given by anyone. The police received information and registered case on the basis of the statement recorded from P.W. 1, the mother of the deceased. According to this, A7 has broken the windscreen of the auto-rickshaw and the same was informed by P.W. 2 to the deceased and his mother, P.W. 1. All the three are said to have gone to the same place, to question A7 about this. No previous enmity is suggested between any of the accused and the deceased. When the deceased was said to have asked A7 about the breaking of the glass, A2 is said to have hacked the deceased with an axe on the head. One does not find any provocation, worth its name, warranting or justifying such a sudden and grievous act. A3 is said to have hit the deceased with a stick. 10. What is not clear from the record, is the sequence of events that have taken place, after the deceased was shifted to the Government Hospital. It has already been mentioned that Ex. P4-1 is the statement said to have been recorded from P.W. 1. At the end of that statement, it was mentioned that the deceased was not in a conscious condition, obviously with an intention to justify the non-recording of any statement from the deceased, when he was in an injured condition. If this were to be true, Ex. P41 can certainly constitute the basis for initiation of the prosecution. In her cross-examination, P.W. 1 stated as under: I accompanied with Ramaiah (deceased) to the Government Hospital at Narsaraopet and Guntur. He was in conscious state and could able to talk till he was in Government Hospital, Narsaraopet. It is not true to say that the accused are not responsible for the death of Ramaiah. 'At this stage witness wept.' Ramaiah was examined by the Police in the Government Hospital, Narsaraopet where his statement was recorded by the Police. 11. Since this statement is made in the cross-examination, that too by the mother of the deceased, it has to be taken as true. The witness was not re-examined by the prosecution, on this aspect. 'At this stage witness wept.' Ramaiah was examined by the Police in the Government Hospital, Narsaraopet where his statement was recorded by the Police. 11. Since this statement is made in the cross-examination, that too by the mother of the deceased, it has to be taken as true. The witness was not re-examined by the prosecution, on this aspect. A statement recorded from a seriously injured person, partakes the character of a dying declaration. The law attaches enormous importance to the dying-declaration and the presumption always is that dying declarations reveal the true state of affairs and they are taken as, prima facie, true. Suppression of a dying declaration would have its own serious impact upon the case of the prosecution. There is no other alternative except to draw an inference that had the dying declaration recorded from the deceased been made part of the record, it would not have supported the case of the prosecution and Section 114(g) of the Indian Evidence Act gets straightaway, attracted. 12. That the unfortunate incident became a fertile ground for the prosecution to fold in the persons of their choice, is evident from the fact that though A2, A3 and A7 alone were mentioned in Ex. P41, rest of the 18 were included thereafter. It is not as if there was any supplementary complaint or a subsequent revelation of the involvement of other accused. Naturally, the prosecution though made an attempt to fold in about 20 accused and brought into existence equally good number of witnesses, artificiality thereof is manifested, and that resulted in acquittal of all the accused, except A2. 13. If there existed adequate evidence for A2, the conviction handed out to him by the trial Court can certainly be upheld. Therefore, it needs to be seen as to whether there exists any independent evidence that can justify the conviction of A2. 14. Omnibus charge against all the accused is contained in Charge Nos. 1 and 2 under Sections 147 and 148 I.P.C. respectively. Both the charges were held not proved. Therefore, it needs to be seen as to whether there exists any independent evidence that can justify the conviction of A2. 14. Omnibus charge against all the accused is contained in Charge Nos. 1 and 2 under Sections 147 and 148 I.P.C. respectively. Both the charges were held not proved. The third charge is against A1, A2 and A5 and they are alleged to have committed the offence punishable under Section 302, read with Section 149 I.P.C. Section 149 I.P.C. can be invoked if only there is involvement of an unlawful assembly, as defined under Section 141 I.P.C. It is only when five or more persons have gathered, with an objective of committing a criminal act or using criminal force, that an unlawful assembly can be said to have come into existence. The question of three persons being treated as unlawful assembly does not arise. Therefore, the very framing of the charge was defective. 15. It is, no doubt, true that Section 215 Cr.P.C. condones certain minor defects in framing of the charges and such a defect cannot tell upon the result in a criminal case. Such omissions, however, are confined to the statement of offence, or particulars required to be stated in the charge. Where a fundamental mistake in the context of invoking an important provision of law is noticed, it cannot be pushed under the carpet, by taking recourse to Section 215 Cr.P.C. 16. One should not lose sight of the fact that a criminal Court is conferred with the power under Section 216 Cr.P.C. to alter the charges at any stage, before the judgment. Whatever be the reasons to frame the charge in such a manner, at least, when the trial Court was preparing the judgment, and it came to the conclusion that A2 alone is found guilty, the charge ought to have been scrutinized and if necessary, steps could have been taken to alter it. Failure to take steps in that direction would certainly have its impact upon the case of the prosecution and the corresponding right of the accused in its own way. 17. Keeping the defect in the charge aside, it may be noted that the allegation was common against A1, A2 and A5. The names of A1 and A5 did not figure in Ex. P41, at all. 17. Keeping the defect in the charge aside, it may be noted that the allegation was common against A1, A2 and A5. The names of A1 and A5 did not figure in Ex. P41, at all. Once a charge is to the effect that a group of persons resorted to a criminal act with a common objective, it becomes virtually impermissible to isolate one of them and to allege that the offence was committed exclusively by that person. If that is so, the content of the charge and the nature of evidence must be different. The evidence, which was initially planned by the prosecution, to be in general against a group of the accused cannot transform to be the one, pointedly against one of the accused. 18. In view of the defects pointed out by us in the preceding paragraphs, we are of the view that the conviction and sentence ordered against A2 cannot be sustained in law. 19. Hence, the Criminal Appeal is allowed. The conviction and sentence ordered in S.C. No. 29 of 2008 on the file of the X Additional District & Sessions Judge (F.T.C.), Guntur at Narasaraopet, dated 04.01.2010, against the appellant-A2, are set aside. The appellant-A2 shall be set at liberty forthwith, unless his detention is needed in any other case. The fine amount, if any, paid by the appellant-A2 shall be refunded to him. 20. The miscellaneous petition filed in this appeal shall also stand disposed of.