Dadi Narsi Reddy vs State of A.P.

Vaman Rao, J

This appeal is directed against the Judgment of the 2nd Additional Sessions Judge, Nalgonda, dated 27-5-1997 rendered in SC No.322 of 1995, under which while acquitting A2 to A13 of various charges framed against them the appellant-A1 has been convicted for the offence punishable u/s 302 IPC and also for the offence punishable u/s 323 IPC and has been sentenced to undergo rigorous imprisonment for life for the offence u/s 302, IPC and to undergo rigorous imprisonment for one year for the offence u/s 323, IPC directing both the sentences to run concurrently.

The facts relating to this appeal may be stated briefly as follows :

A1 is the son of PW2 and step son of the deceased. A2 is the wife of Al, All are residents of Gujja village. There have been disputes between PW2, the falher of Al, who has married (he deceased as second wife, and his children through her including PW1, the son, in regard to properties of the family. It is in the evidence that some litigation has also been pending between PW1 and P\\V2 on one hand and A! on the other. It is stated that A1 tried to interfere with PW2''s possession over the property and PW2 filed the suit. It is also stated that another suit for injunction was also filed. In this background, the prosecution case is that on 16-7-1994 at about 6 p.m. all the accused armed with deadly weapons entered the house of the deceased-Dadi Venkalamnia and while the deceased was talking with PW2 and Al and A2 went there and dragged the deceased. When PW2 interfered lie was kicked by Al. Thereafter Al and A2 dragged the deceased out and Al hit her with a cart peg on all parts of the body and A2 hit her with "Thumma Moddu" (log of acacia) on the chest, while the other accused were standing nearby. P\\V2 brought the deceased inside with the assistance of his neighbours. PW2 sent information of this incident to his son-PW1 who has been living at Hyderabad, and on the next morning i.e., 17-7-1994, PW1 after hearing the narration of the incident from PW2 filed the first information report-Ex.Pl at the Police Station. PW8, the Sub-Inspector of Police, registered a case and issued FIRunder Ex.P7.

PW12, the Inspector of Police, took up further investigation. He visited the village and examined PWs.2 to 5. He conducted inquest over the dead body of the deceased in the presence of PW9 and prepared Ex.PS inquest report. PW12 thereafter prepared a panchnama of the scene of offence, under Ex.P9 and also the sketch of scene of offence which is Ex.PlO. The body was then sent for post-mortem examination. PW7, Deputy Civil Surgeon at Government Hospital, Nalgonda, conducted autopsy on the dead body on 17-7-1994 at 5.00 p.m. and gave Ex.P6 post-mortem report. He observed as many as 16 injuries and opined that the death was the result of internal injury No. 16 at the right lower lobe of the chest, which corresponds to external injury Nos.14 and 15.

On 9-8-1994 PW12 arrested A1 and A2 and it is stated that in consequence of the confessional statement of A1 in the presence of PW11 (mediator) PW12 seized cart peg under Ex.P12. However, this alleged weapon of offence was not produced into Court.

Thus, PWs.1 to 12 have been examined ort behalf of (he prosecution andExs.Pl to P14 have been marked. No evidence on behalf of the accused has been adduced. On this material, the learned Additional Sessions Judge, while acquitting A2 to A13 of the charges framed against them, held Al guilty and convicted him for the offence under Sections 302 and 323, IPC and imposed the sentence as stated above.

The question for consideration is whether the prosecution has succeeded in bringing home the offences u/s 302 and 323, IPC against Al beyond reasonable doubt.

It may be mentioned at the outset that though the prosecution has cited, apart from PW2, PWs.3, 4, 5 and 6 as eyewitnesses, but when P\\Vs.3 to 6 were examined in the Court they failed to support the prosecution version and they have been permitted to be cross-examined on behalf of the prosecution.

Thus the case of the prosecution hinges on the evidence of the solitary eye-witnesses-PW2 as corroborated by the medical evidence given by PW7 besides the alleged recovery of weapon of offence in consequence of the statement of A1.

It is pertinent to mention here that the trial Court on a fairly exhaustive discussion of the evidence of PW2 came to the conclusion that his evidence cannot be relied upon implicity on all aspects on which he has deposed. The trial Court held, and in our opinion rightly, that PW2 had made an attempt to falsely implicate A3 to A13. In fact a perusal of the evidence of PW2 would disclose that even in his examination-in-chief he has spoken about the presence of A3 to A13, but categorically stated in the first., instance that they did not do anything. To another question in examination-in-chief he answered that "they did not talk anything". It would appear that it was only on some prompting PW2 ultimately said that A4 and A7 incited AI to beat the deceased. This evidence is not relevant for the purpose of this appeal. But it is being mentioned to highlight the point that the trial Court''s conclusion that PW2''s evidence is not of the nature inducing the Court to place implicit reliance in it. On a further discussion of the evidence, the trial Court also came" to the conclusion that the prosecution failed to prove beyond reasonable doubt as to the participation of A2 in the incident and as to the overt acts attributed to A2 in the assault on the deceased and consequently A2 was also acquitted by giving benefit of doubt.

The learned Public Prosecutor taking a cue from this finding seeks to contend that when the Court came to the conclusion that A2 was not responsible for the injuries on the chest attributed to him by PW2, the necessary inference would be that it was Al, the only other accused who participated in the incident, who must have caused those injuries. To buttress this contention, the learned Public Prosecutor further attempted to point out that even considering the description of the injuries, the injury on the chest, which resulted in the internal injury to the lobe of the right lung is more probable by cart peg rather than a heavier weapon described as Thumma Moddu (log of acacia). It is further pointed out by the learned Public Prosecutor that injury No. 13 involving fracture of four ribs is more probable by Thumma Moddu rather than a cart peg. The sum and substance of the argument of the learned Public Prosecutor would amount to substitution or assignment of the role ascribed to A2 by PW2 to A1 in view of the finding of the trial Court that A2 was not responsible for Ihose injuries. This contention appears to be based on a fallacy. It may be pointed out that A2 has been acquitted of the charge framed against her in respect of murder of the deceased not because her involvement in the offence was totally disproved but on the ground that it was not proved sufficiently. The circumstance that A2 was acquitted by giving benefit of doubt merely implies that the Court found that overt acts attributed to A2 were not proved with the requisite standard of evidence required in a criminal case. Merely acquittal of A2 under the circumstances does not lead to any inference that even those injuries which are ascribed by the prosecution witness to A2 must be held to be caused by Al on the ground that it is only Al''s participation which is proved.

Further, any attempt to substitute Al for the overt acts ascribed to A2 by the prosecution would amount to making out a new case for the prosecution as against the case positively set up by the prosecution by way of evidence of PW2 as regards the involvement of Al.

Mr. C. Padmanabha Redcfy, learned Counsel for the appellant, contends that on the basis of the infirmities pointed out by the trial Court as to the participation of A2 it must be held that the prosecution has failed to make out a case even against Al. It is particularly stressed that the variance between the version given in Ex.Pl-First Information by PW1 and the version given by PW2, the solitary eye-witness, in the Court is a circumstance which militates against the credibility of PW2 and on this count the learned Counsel contends that it must be held that the prosecution has failed to prove the charge against Al also. It is contended that in Ex.Pl the version given is that first Al and A2 kicked and beat PW2 and threw him on the ground, and thereafter the deceased was taken outside and was beaten with sticks and hunting instruments like sticks by all the accused on his head, hands and chest.

This reading of the contents of Ex.Pl does not appear to be justified. It is pertinent to mention that having mentioned Jlie names of all the accused, viz., Al to A13, Ex.Pl proceeds to narrate about Al and A2 having kicked and beat with hands PW2. After this, the following statement is found :

"Afterwards my mother Venkamma was taken outside and was beaten with sticks and hunting instruments like sticks on her legs, hands and chest, wounded her and threw her on the floor and fled away."

According to the learned Counsel, all mese acts are attributed to all the accused collectively. We are unable to agree with this reading of Ex.Pl. The above quoted sentence appears immediately after referring to specific overt acts of Al and A2. From the context and the tenor of narration in Ex.Pl it must be held that the subsequent acts are also attributed to Al and A2. However, it is true that the version in Ex.Pl is at variance with the evidence of solitary eye-witness-PW2 inasmuch as even as between" A1 and A2 no specific overt acts are attributed in Ex.Pl. The statement proceeds as if A1 and A2 hit with sticks and caused injuries on head, hands, chest and other parts. PW2, thus, makes a substantial improvement in his version given in the Court inasmuch as he attributes to A2 hitting on the chest and causing injuries on the chest and in regard to Al he gives a general statement that he hit the deceased on various parts of her body. Under the circumstances and in view of this significant variance in the statement of PW2 in the Court, his version as to specific overt acts attributed to A1 and A2 separately cannot be relied upon. At any rate, inasmuch as A2''s participation has been doubted by the trial Court and we do not disagree with the finding as to A2''s involvement, then what remains is PW2''s evidence in the Court that Al caused injuries with a cart peg on various parts of her body. When PW2 specifically attributed injuries on the chest to A2, it is not possible to give a go-bye to PW2''s own statement as to the specific overt acts attributed to A2. It is so simply because there is no evidence on record apart from that of PW2, which could in any way connect A1 with the injuries on the chest of the deceased. It is not possible to make out a new case for the prosecution over-riding the evidence of PW2, the solitary eye-witness himself, simply on the ground that A2 has been acquitted of the charge framed against her. As to the contention that the entire case as against A1 has to be disbelieved in view of this variance in the version in Ex.P1 and the evidence of PW2, we may point out that, as rightly noted by the learned Additional Sessions Judge, the presence of PW2, who was the husband of the deceased, in the house at the time of the incident is quite probable. It is contended by the learned Counsel for the appellant that even where the first information report is given by a person other than the eye-witness such a report is still relevant u/s 11 of the Evidence Act as held by the Supreme Court in the case of Ram Kumar Pandey Vs. State of Madhya Pradesh, . It is true that even where the first information report is lodged by a person other than an eye-witness, though it cannot be used for contradicting the eye-witness concerned, it can still be used for assessing the credibility of the prosecution evidence inasmuch as such a report must have been given on the basis of the information conveyed to the first informant by those who witnessed the incident. But such a report certainty stands on a different footing from a report given by an eye-witness himself. Variance between the report given by a person other than eyewitness cannot strictly be used to contradict the version used by the eye-witness. At any rate, here it is not a case of irreconcilable contradiction between the version given in Ex.PI and the evidence of PW2. It is a case of omission to specify the overt acts of AI and A2 separately as against the specific overt acts attributed to Al and A2 in the evidence of PW2 in the Court. Under the circumstance, such a variance cannot be considered as a ground for rejecting the evidence of PW2 totally. We are, however, aware that considering the circumstance of such variance and considering the circumstance that PW2 is an interested witness, his evidence has to be scrutinized cautiously. Having given a careful consideration to the evidence of PW2 and in the light of the medical evidence, which substantially corroborates the evidence of PW2, we are of the opinion that the evidence of PW2 can be believed to the extent of participation of Al in the incident. But as held above, considering the circumstances referred to above, we do not find it possible to hold that A1 was responsible for the fatal injuries on the chest which resulted in the death.

It is also submitted by the learned Counsel for the appellant that once A2 has been acquitted, Al cannot be convicted by pressing into service Section 34 or 109 IPC. In support of this contention, the learned Counsel relies on the judgment of the Supreme Court in the case of Baul and Another Vs. State of U.P., . We are inclined to accept this contention and we are. of the opinion that conviction of Al for the offence u/s 302 IPC cannot stand. However, the participation of Al and his inflicting the injuries with a cart peg on various parts of the body of the deceased can be accepted. Therefore, it must be held that the prosecution succeeded in bringing home the offence u/s 326, IPC against A1 inasmuch as the evidence of P W7-Doctor discloses apart from the injuries on the chest there are other injuries which include grievous injuries like injuries 6 and 13, which were caused by a dangerous weapon like cart peg.

In the result, it is held that the prosecution has succeeded in bringing home the offence u/s 326, IPC against Al, the appellant herein, beyond all reasonable doubt and has failed to bring home the offence u/s 302, IPC, against him. With the result, AI is held not guilty and is acquitted of the charge u/s 302, IPC. He is, however, convicted for the offence u/s 326, IPC, apart from confirming his conviction for the offence u/s 323, IPC, as recorded by the learned Additional Sessions Judge. Thus, the appellant-A1 is convicted for the offence punishable u/s 326, IPC and considering his age and relationship with PW2 he is sentenced to undergo rigorous imprisonment for a period of four years. The sentence for the offence u/s 326, IPC and the one for the offence u/s 323, IPC are directed to run concurrently.

The Criminal Appeal is partly allowed with the said modification of the offence and sentence.