Bodepudi Seenu alias Sreenivasa Rao and Others vs The State

Krishna Saran Shrivastav, J.—This appeal shall also govern the disposal of Criminal Appeal No. 652 of 1994.

These two appeals are directed against the judgment of II Additional Sessions Judge, Guntur passed in Sessions Case No. 127 of 1993, whereby all the appellants have been convicted under S. 148 of the IPC and each one of them has been sentenced to suffer rigorous imprisonment for a period of two years, A-1 to A-3, A-5 to A-8, A-10, A-12, to A-17 and A-20 have been convicted for committing the murder of deceased D-1 to D-3 and sentenced to undergo imprisonment for life on each count under S. 302 read with S. 149 of the IPC and A-5 has been convicted under S. 326 of the IPC for causing grievous hurt with a weapon of cutting and has been sentenced to suffer rigorous imprisonment for five years, while A-1 to A-3, A-6 to A-8, A-10, A-12 to A-17 and A-20 have been convicted and sentenced to suffer rigorous imprisonment for a period five years under S. 326 read with S. 149 of the IPC. All the sentences have been ordered to run concurrently.

Twenty three accused persons have been charge sheeted under Ss. 120-B, 148, 302, 302 read with S. 149, 307,307 read with S. 149, 324 and 324 read with S. 149 of the IPC.

The II Additional Sessions Judge framed charges under S. 148 of the IPC against all the accused persons, under S. 302 of the IPC against A-1, A-3, A-7, A-8 and A-23 for causing the death of D-1, under S. 302 read with S. 149 of the IPC against A-2, A-4 to A-6, A-9 to A-22, under S. 302 of the IPC for causing the death of D-2 against A-9, A-10, A-11, A-16 and A-18 and under S. 302 read with S. 149 of the IPC against A-1 to A-8, A-11 to A-15, A-17 and A-19 to A-23, under S. 302 of the IPC for causing the death of D-3 against A-12, A-13 and A-19 to A-22 and against A-1 to A-10, A-14 to A-18 and A-23, under Ss. 324 of the IPC for causing hurt to PW-1 by a sharp cutting weapon against A-1 and under S. 324 read with S. 149 of the IPC against A-2 to A-10 and A-12 to A-23, under s. 307 of the IPC for admitting to murder PW-3 against A-4 to A-6 and under S. 307 read with S. 149 of the IPC against A-1 to A-3, A-7 to A-10 and A-7 to A-23, under S. 324 of the IPC for causing hurt with a sharp cutting object to PW-4 against A-14 and A-15 and under S. 324 read with S. 149 of the IPC against A-1 to A-10, A-12. A-13 and A-16 to A-23, under S. 324 of the IPC for causing hurt by a sharp cutting object to PW-5 against A-8 and under S. 324 read with S. 149 of the IPC against A-1 to A-7, A-9, A-10 and A-12 to A-23.

It is a matter of record that during the course of trial A-1 expired and the case against him abated. The trial Court acquitted A-4, A-9, A-18, A-19 and A-21 to A-23 against all the charges levelled against them. It acquitted A-1 under S. 324 of the IPC and A-2 to A-10 and A-12 to A-23 under S. 324 read with S. 149 of the IPC. It acquitted A-14 and A-15 under S. 324 of the IPC and A-1 to A-10, A-12, A-13 and A-16 to A-23 under S. 324 read with S. 149 of the IPC and it acquitted A-9 from the charge levelled against him under S. 324 of of the IPC and A-1 to A-7, A-9, A-10 and A-12 to A-23 under S. 324 read with S. 149 of the IPC. It also acquitted A-4 to A-6 from the charge levelled against them under S. 307 of the IPC.

Feeling aggrieved by the judgment of conviction and sentence, A-1 to A-3 and A-5 to A-7 have preferred Criminal Appeal No. 651 of 1994 and A-8, A-10, A-12 to A-17 and A-20 have preferred

Criminal Appeal No. 652 of 1994.

The matrix of the prosecution case is that A-1 and A-3 were on an inimical terms with D-1 to D-3 and PW-1 and their group due to agricultural rivalry. On 22-9-1991 at about 3-00 p.m., when PW-2 was taking back his cattle from his land to his village, A-1 and A-3 beat him with axes alleging that his cattle had strayed into their land. On reaching home, PW-2 narrated the incident to his father PW-3 and other relations, whereupon D-1 to D-3, PW-3 and some other persons started for lodging protest with Davuluri China Venkateswarlu, the vendor of the fields of A-1 and A-3. But, A-1 to A-22 and their party men hurled stones on the houses of the deceased D-1 to D-3 and, therefore, they cancelled their programme. After some time, when D-1 to D-3, PW-1 and PW-3 to P-6 were taking the injured PW-2 on a cot Savalyapuram Police Station at about 6-00 p.m., the accused-appellants as also the acquitted accused persons met them near Pedakancherla canal and A-1 invited D-1 to D-3 and others to go to elders for settling the dispute. At that time, all the accused persons were armed with various lethal weapons. All of a sudden, A-1 stabbed the deceased D-1 with a spear, A-3 hacked with a battle axe with force on his face, A-7 hacked with an axe on his mouth, A-8 stabbed him with a spear on his face and A-23 hacked him on his head. When D-2 and D-3 tried to intervene A-11, since deceased, and A-11 gave a battle axe blow and a spear blow on the mouth of D-2, while A-12 gave a spear blow on the right side of the rib of D-3 and A-13 stabbed him with a spear on his mouth. A-16, A-9 and A-18 also beat D-2 with knives and axes. D-3 was beaten with a stick indiscriminately by A-19 to A-22. A-1 stabbed PW-1 with a spear causing injury on his right wrist, while A-4 to A-6 beat PW-3 with axes and spears. A-14 and A-15 chased and beat PW-4, while A-8 gave a stick blow on the head of PW-5. After beating them, the accused fled away. As a result of the injuries sustained, D-1 to D-3 died on the spot.

On 22-9-1991 at about 8-00 p.m., PW-1 lodged a written report Ex. P-1 with the Savalyapuram Police Station, where a case under Ss. 120-B, 147, 148, 324, 307 and 302 read with S. 149 of the IPC was registered against the accused persons.

The investigating officer PW-14 recorded the statement of the witnesses PW-1 and PWs-4 to 6. He seized iron-shod sticks and chappals etc., from the scene of occurrence as also blood stained and plain earth on the morning of 23-9-1991. He held the inquest over the dead bodies of D-1 to D-3 vide inquest reports which are at Exs. P-24 to P-26 respectively. He recorded the case diary statement of PWs. 2 and 3 on 24-9-1991. He seized blood stained wearing apperals from all the three dead bodies.

Dr. C. Jayapradha PW-9 examined PW-3 on 22-9-1991 at 9-15 p.m., and found eight lacerated wounds and three contusions on various parts of his body vide wound certificate Ex. P-13.

Dr. S. V. V. Prasad Varma PW-8 vide his report Ex. P-12 X-rayed the right mandible of PW-3 and found that it was fractured. PW-9 also examined PW-2 on 22-9-1991 and found one abrasion and ten contusions on various parts of his body vide report Ex. P-16. PW-9 also conducted autopsy of D-1 and vide post-mortem report Ex. P-17 opined that the injuries were ante-mortem and that the deceased died due to shock and haemorrhage as a result of the injuries received by him on his vital organs. PW-9 also conducted the autopsy of D-3 and opined vide post-mortem report Ex. P-18 that he had received injuries on vital parts of his body and had expired due to shock and haemorrhage as result of the injuries received by him.

PW-9 also conducted the autopsy of D-2 and vide report Ex. P-15 opined that the deceased had received the injuries on vital parts of his body due to which he expired. He also opined that the injuries found on the dead bodies of D-1 to D-3 were sufficient in the ordinary course of nature to cause death.

After usual investigation, the accused persons as also the accused-acquitted persons were prosecuted as aforesaid. Charges as stated above had been framed against them by the trial Court. The accused persons abjured their guilt that they have been falsely implicated due to enmity. They did not examine any witness in defence.

On assessment of the evidence on record, the learned Additional Sessions Judge acquitted A-4, A-9, A-18, A-19 and A-21 to A-23 and convicted and sentenced the appellants as stated above.

Sri G. Peddababu, the learned counsel for the appellants in Criminal Appeal No. 652 of 1994 and Sri D. Parveen Kumar, the learned counsel for the appellants in Criminal Appeal No. 651 of 1994, have urged that the learned Additional Sessions Judge has erred in relying on the testimonies of PWs. 2 and 3, in reaching to the conclusion that the appellants are guilty for the offences referred to above and have been wrongly convicted and sentenced. The evidence of PWs. 2 and 3, who are father and son, is full of infirmities and it has been disbelieved in part and, therefore, these two witnesses are not worthy of reliance.

On the other hand, the learned Public Prosecutor has contended that the Additional. Sessions Judge has properly scrutinised the evidence of PW-2 and 3 but has conceded that the accused Nos. A-6, A-14, A-15, A-17 and A-20 may be given the benefit of doubt. But, so far as the remaining appellants are concerned, there is ample reliable evidence on record to maintain the judgment of conviction and sentence.

To bring home the guilt against the appellants, the prosecution relied on the evidence of P.Ws. 1 to 6, who were cited as eye witnesses. The learned Additional Sessions Judge, on the evidence of P.W. 12, concluded that the written report Ex. P. 1 was not lodged at 8.00 p.m., on 22-9-1991, but, in reality, it was lodged with the police on 23-9-1991 at 4.00 a.m., after deliberations and, therefore, no reliance can be placed on it. The trial Court rejected the evidence of P.Ws. 1 and 4 to 6 on the ground that P.W. 6 is an old woman and was not related to P.W. 2 and, therefore, there was no occasion for her to accompany P.W. 2 when he was taken to the Savalyapuram Police Station on a cot with other male members, partircularly, when P.W. 2 was having female relations in his house, but those ladies did not accompany him and that P.W. 6 did not receive any injury during the incident. It rejected the evidence of P.Ws. 1, 4 and 5 on the ground that they received simple injuries which could be self-inflicted and that they were examined belatedly on 23-9-1991 in the evening, they might have received the injuries in the stone pelting incident and not during the main incident. All these witnesses gave parrot like statements regarding the part played by the accused persons in the incident and this indicates that they have given a tutored version. It has found the evidence of P.Ws. 2 and 3 partly reliable and, therefore, on the basis of the same it recorded the finding of conviction and sentence as stated above.

P.W. 1 has stated that after the incident he went to Savalyapuram and narrated the incident to the people gathered in the street at about 6.30 p.m., including P.W. 12 and then came back to the spot. He again went to Savalyapuram Police Station and lodged the written report Ex. P. 1. He had dictated the report in the police station in presence of investigating officers to a person whom he knew by face only and who belong to Potluru village. At that time, some residents of his village were also present. His statement stands contradicted by the evidence of P.W. 12, who has stated on oath that P.W. 1 dictated the report Ex. P. 1 by reading a paper at 4.00 a.m., on 23-9-1991 in the police station in presence of investigating officers. Though P.W. 1 had denied to have dictated the report to P.W. 12, his evidence does not inspire confidence. The reason is that he gave an evasive reply and did not tell the name of the scribe to whom he had dictated the report Ex. P. 1 in the police station. It does not stand to reason that he would have preferred an unknown person for giving dictation, particularly, when known persons were present in the police station to take down the dictation. From the evidence of P.W. 12, it appears that the first information report has been ante-timed and, therefore no reliance can be placed on the FIR, Ex. P. 1. It would not be out of place to mention that the FIR, had reached the Magistrate at 7.25 a.m., 23-9-1991. The delayed receipt of FIR, by the Magistrate is indicative and suggestive of the fact that it was not recorded at 8.00 p.m., on 22-9-1991 but it was recorded on or about 4.00 a.m., on the following day, otherwise it would have been received by the Magistrate latest by 10.00 p.m., on 22-9-1991.

The conduct of P.W. 1 in not lodging the report immediately on reaching savalyapuram village but returning to the scene of occurrence and then again going to Savalyapuram Police Station and lodging the report at 4.00 a.m., impairs his testimony that he had witnessed the occurrence, particulary, in the light of the fact that he did not mention about his own injury in the FIR., Ex. P. 1. P.Ws. 4 and 5, who are father and son, have been rightly disbelieved because from the evidence of P.Ws. 2 and 3 it is gathered that the assailants had surrounded D. 1 to D. 3 and thereafter they had inflicted injuries on their person. Under these circumstances, it was not at all possible for the witnesses P.Ws. 4 and 5 as also P.W. 1 to have seen the part played in the incident by each of the appellants. These three witnesses have stated in one voice the order in which A. 1, A. 3 and A. 7 to A. 13 had inflicted injuries on the person of D. 1 to D. 3 by various weapons.

In the case of Sevi and Another Vs. State of Tamil Nadu and Another, , the evidence of the eye-witnesses were found as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant and the account of the witnesses, under these circumstances, was found to be dramatic and invented to allow each witness to give evidence of the entire attack. Where the investigation itself is found to be tainted, the task of the Court to sift the evidence become difficult indeed. The photographic and some-what dramatic account which they gave of the incident with minute details of the attack on each of the victims, makes credibility of the witnesses doubtful.

For the foregoing reasons, particularly, in the light of the fact that the deceased persons were surrounded, it was impossible for P.Ws. 1 and 4 to 6 to have noticed the attack of every accused person, particularly, in chronological order. Therefore, agreeing with the II Additional Sessions Judge, we hold that the evidence of P.Ws. 1 and 4 to 6 is not worthy of reliance and, therefore, it should be excluded from consideration. As noted above, the first information report appears to be ante-timed and, therefore, its genuineness becomes doubtful.

The learned Additional Sessions Judge did not accept the evidence of P.Ws. 2 and 3 that when P. 2 was taken in a cot to the police station after the stone pleting incident P.Ws. 1 and P. 4 to P. 6 had also accompanied him. The learned Additional Sessions Judge did not rely on the statements of P.Ws. 2 and 3 that A. 9, A. 18, A. 19, A. 21, A. 22 and A. 23 were also present along with the appellants at the time of the incident and they had also participated in beating D. 1 to D. 3. The trial Court did not rely on the evidence of P.W. 3 and A. 4 was also present on the spot and he had beaten him. We get from the evidence of P.W. 2 that there were two groups in his village and he belongs to one group, while the accused persons belong to the another group. We also get from the evidence of P.W. 3 that prior to this incident, A. 10, A. 12, A. 22, A. 14. A. 9 and A. 7 had beaten him and P.W. 2 and at their instance a case is pending a against them in the Munsif Magistrate''s Court at Vinukonda. This establishes that P.Ws. 2 and 3 are partisan witnesses and their evidence, therefore, requires close scrutiny, particularly, when it has been rejected in part by the learned Additional Sessions Judge.

P.W. 2 has testified that he had reached the village Savalyapuram, where he met his father P.W. 3. His father P.W. 3 has also stated to have met P.W. 2 in the village Savalyapuram. P.Ws. 2 in the village Savalyapuram. P.Ws. 2 and 3 have stated that they had gone to Vinukonda hospital in a van against fare. P.W. 2 has not stated as to why he did not to to Savalyapuram Police Station on reaching the village. P.W. 3 has testified that he had become dummy on account of the injuries and, therefore, he went straight way to Vinukonda hospital in a van. This appears to be the cause for his not going to the police station directly. Dr. C. Jayaprada P.W. 9 has not testified that on examination she has found P.W. 3 speachless. It is pertinent to note that P.W. 3 has stated that he remained dummy for three days. Thus the reason shown by P.W. 3 for not directly going to Savalyapuram Police Station is not acceptable. When P.Ws. 2 and 3 had left the village for Savalyapuram Police Station for lodging the report for a minor incident, there appears to be no cause for not going to the police station on reaching the village Savalyapuram. The investigating officer has also spoken a lie that he received the information about the injuries of P.Ws. 2 and 3 only on receiving the intimation from Vinukonda hospital on 24-9-1991 because he has admitted to have read the FIR on 22-9-1991 only, in which it has been specifically mentioned that P.Ws. 2 and 3 have gone to Vinukonda hospital for treatment. No acceptable reason has been given by the investigating officer for the delay in recording the statements of P.Ws. 2 and 3. The unexplained delay in recording the statements of P.Ws. 2 and 3 is fatal to the case of the prosecution. The conduct of P.Ws. 2 and 3 in not lodging the report immediately on reaching the village Savalyapuram and keeping mum up to the time of their statements were recorded by the investigating officer impairs their testimonies.

As noted above, the FIR, was recorded at 4.00 a.m., on 23-9-1991 and, therefore, the statements of P.Ws. 1 and 6 at the time of preparation of inquest reports Exs. P. 24 and P. 25 cannot be looked into for the purposes of corroboration of the statements of P.Ws. 2 and 3 because their statements were recorded during the course of investigation and can be utilised only for the purposes of contradiction u/s 162 of the code of Criminal Procedure and that too of the evidence of P.Ws. 1 and 6. They are not to the previous statements of P.Ws. 2 and 3. The learned lower Court was wrong in treating these statements as first in point of time. It has lost sight of the fact that these statements have been made by P.Ws. 1 and 6 whose testimonies have been rejected as false by the Court below itself.

P.W. 2 has given an omnibus statement that all the accused persons had surrounded D. 1 to D. 3 and had beaten them. We get from the evidence of P.W. 1 that thirty persons had taken part in the assault and that there is no material on record to know about the names of seven remaining assailants. On his own showing D. 1 to D. 3 were surrounded by the accused persons then how could P.W. 3 himself see that A. 1 stabbed with a spear on the right side of the abdomen of D. 1. According to him, A. 4, A. 2 and A. 5 chased him and beat him with axes and spears on his chin, mouth and face. But, he did not specifically stated as to who out of these three had hit him on his mandible and with what weapon. It is pertinent to note that he has not stated in his case diary statement that A. 4 had beat him on his face, chin or mouth. This impairs his claim that A. 4 had given him a blow with any weapon on his face, chin or mouth. The learned lower Court has relied on the statements of P.Ws. 2 and 3 to convict the appellants mainly on the ground their names appeared in the inquest reports Exs. P. 24 and P. 25. As noted above, the evidence of P.Ws. 4 and 5 cannot be pressed into service for the purposes of corroborating the evidence of P.Ws. 2 and 3. P.W. 2 has not stated in his case diary statement about the part played by the appellants-accused Nos. 2 to 23 and, therefore, this omission amounts to contradiction and the evidence of P.W. 2 is shaken by this contradiction and it cannot be relied on to fasten the accused Nos. 4 to 10 and 12 to 23 with the guilt.

For the foregoing reasons, disagreeing with the learned Additional Sessions Judge, we reach to the conclusion that the evidence of P.Ws. 2 and 3, which has been partly found unreliable (by the trial Court) is highly unsafe to connect the appellants with the murder of D. 1 to D. 3 and with the offence of causing grievous hurt to P.W. 3, particularly, because the truth and falshood in their evidence are so intermixed that it is difficult to disengage the truth and from the falsehood.

In result, both the appeals are allowed.

The conviction and sentence of all the appellants are set aside. The appellants are acquitted of all the charges levelled against them. They should be set at liberty forthwith, if not required in any criminal case.

Appeal allowed.