Gurram Venkatanarayana and Others vs State of A.P.

Initially Accused No.1 to 6 were prosecuted for different charges in the Court of the Sessions Judge, Prakasam District in Sessions Case No.282 of 1994. The first charge against Accused Nos. t to 6 was punishable u/s 148 1.P.C. The second charge against At to A4 was punishable u/s 302 I.P.C. and the third charge against A5 and A6 was punishable u/s 302 r/w 149 1.P.C. On evidence the learned Sessions Judge found that no offence was disclosed against A5 and A6 and they were acquitted of all the charges; Whereas A3 died during the course of trial and therefore the case against him was abated. Accused Nos. 1, 2 and 4 were found guilty of an offence punishable u/s 304 Part-I I.P.C. and therefore Al was convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.1000/-in default to suffer R.l. for six months. A2 and A4 were convicted and sentenced to suffer R.I. for seven years and to pay a fine of Rs.1000/- each in default to suffer R.I. for six months each.

Aggrieved by the aforesaid order of conviction and sentence, A1 and A2 and A4 have filed the present appeal.

The prosecution story can briefly be narrated as follows:

That on 15-8-1993 at about 9.00 am. when the deceased along with PWs.2 and 3 were proceeding towards the disputed land called "Padamati Chenu", there was a dispute between Al and the deceased regarding the above land. The lower Court dismissed the suit filed by the deceased regarding the disputed land but the High Court granted a decree in favour of the deceased. Therefore, all the accused decided to do away the deceased and attacked with cart pegs.

It is further alleged by the prosecution that Al beat the deceased with a cart peg on his left fore-arm, A2 beat him with a cart peg on his right fore-arm, A3 beat him with a cart peg on his left thigh and A4 beat him with a cart peg on his right ankle, right thigh and right wrist A5 and A6 instigated Al to A4 in the commission of the offence. When PWs.2 and 3, who had accompanied the deceased, tried to rescue the deceased, they were threatened by the accused. On seeing PW1 and others coming at the scene of offence, the accused ran away with their respective weapons.

It is further alleged by the prosecution that PW2 kept PW3 at the scene of offence and went to his brother''s house and found PWs.7 and 8. He informed them regarding the incident. Later on, they brought one bullock cart belonging to PW8 to the scene of offence and shifted the deceased initially to the private hospital. But when the Doctor was not available, they look him to the Police Station, Kurichedu at about 10.30 am It is alleged by the prosecution that the deceased gave a statement Ex.P14, which was recorded by PW13, the Station House Officer, Kurichedu Police Station. A case in Crime No.32/93 was registered on the strength of Ex.P15. All the concerned higher officials were informed regarding the incident. Thereafter, the deceased was taken to the Government Hospital, Darsi, where the Doctor examined the deceased and declared him dead at 11.30am. He issued the death intimation Ex.P16 to the Station House Officer, Kurichedu Police Station. After receiving (he death intimation, PW13 altered the section of law and issued the copies of F.I.R. Ex.P17 is the copy of the F.I.R. Thereafter, the Inspector of Police PW15 took up the investigation. He prepared the Panchanama of the scene of offence, which is now produced on record as Ex.P6. The said Panchanama was prepared in the presence of PWs.9 and 10. PW15 recorded the statements of PWs.2, 6 and 7. Thereafter he conducted the inquest Panchanama over the dead body of the deceased, which is produced on record as Ex.P7. Alter the inquest, (he dead body was sent for post-mortem, PW12, Medical Officer, Government Hospital, Marella, conducted the autopsy on the dead body of the deceased and issued post-mortem certificate,, which is produced on record as Ex. P13. According to the opinion of the Doctor, the deceased died due to shock and multiple fractures.

It further appears from the record that during the course of investigation, M.Os. 1 to 4 cart pegs were recovered under the panchanama Ex.P20. Thus on completion of investigation, charge-sheet was filed.

The defence of the accused is of a total denial. It is only suggested by the accused by way of defence that they have been falsely implicated in this case because of civil litigation pending between them and the deceased.

In order to prove the factum of homicidal death, the prosecution examined PW15 the Investigating Officer and also PW9 the panch witness in order to prove that the inquest Panchanama was held over (he dead body of the deceased. Unfortunately PW9 did not support the prosecution. The inquest report is filed on record as Ex.P7.

As stated earlier, the arrangements were made by the Investigating Officer to send the dead body to PW12, the Medical Officer, attached to the Government Hospital, Darsi for conducting the post-mortem examination. Dr. M.S. Babu conducted the post-mortem examination on 16-8-1993. He commenced the same at about 7.00 am. On external examination, he noticed the following injuries on the person of the deceased :

A contusion of 5 cm. x 3 cm. over back of right fore-arm in its lower third and the fore-arm is deformed ie., shows fracture of the two bones of left fore-arm in the lower third extravasation of blood present.

A contusion of 4 cm. x 3 cm. over back of left fore-arm in its lower third wilh deformity. Internal examination shows fracture of two bones of left fore-arm in its lower third extravasation of blood seen.

A contusion of 10 x 6 m. swelling and deformity of left upper half of thigh. Internal examination shows fracture of left femur in its upper half. Blood clots of 500 grams seen at fracture site.

A lacerated injury of 4 cm. x 1/2 cm. over medial aspect of right heal. Internal examination shows extravasation of blood into underlying tissues seen.

A lacerated injury of 3 cm. x 1/2 cm x 1/2 cm. over middle of front of right thigh. Internal examination shows extravasation of blood in subcutaneous tissues.

All the injuries noticed by the doctor were ante mortem and according to his opinion, the injuries could have been caused by blunt objects like sticks. According to his observation, he prepared the post mortem notes, which is produced on record as Ex.P13.

Considering the evidence of the doctor and the post-mortem notes, this Court holds that the prosecution had been able to prove that the deceased died homicidal death.

In order to connect the accused with the crime, the prosecution, as stated earlier, examined in all 15 witnesses ie., PWs.1 to 15.

PW1 happened to be the nephew of the deceased, who turned hostile. PW2 is the son-in-law of the deceased. He supports the prosecution case, who also claims to be the eye witness to the incident. PW3 also claims to be the eye witness to the incident. He also supports the prosecution case. PWs.4 and 5 turned hostile. PW6 is the widow of the deceased. She was not an eye witness to the incident and she was treated hostile and she was cross-examined by the learned Public Prosecutor. PW7 is the elder brother of PW2, who also turned hostile. PW8 is the younger brother of PW2, who supplied the bullock cart for carrying the deceased from the scene of offence to the hospital. PWs.9 and 10 acted as mediators when the Investigating Officer conducted Panchanama of the scene of offence and tried to attach incriminating articles from the scene of offence. PW11 happened to be the panch. According to the prosecution, all the accused made a confessional statement expressing their willingness to discover the incriminating articles. Unfortunately PW11 also turned hostile. PW12 is the doctor, who conducted the autopsy on the dead body of the deceased. PW13 is the S.I. of Police, who initially started the investigation of the case in question. Thereafter, the further investigation was handed over by him to PW15. PW14 happened to be the corps Police Constable, who removed the dead body to the hospital for conducting the post-mortem examination.

Considering the entire prosecution case, what we have now to-day before us is the evidence of PWs.2 and 3, who claimed to be the eye witnesses to this incident.

While commenting upon the evidence of PWs.2 and 3, who claimed to be the eye witnesses to the incident, the teamed Counsel Mr. T. Bali Reddy submitted at the Bar that they were not the eye witnesses to the incident but they have been cooked up to entangle the accused in the offence of murder. The learned Counsel invited my attention to the evidence of the wife of the deceased, whose evidence was recorded by the learned Judge and who was examined as PW6. The learned Counsel Mr. T. Bali Reddy from the evidence of PW6 emphatically stated that PWs.2 and 3, in fact, were not the eye witnesses. The evidence of PW6 shows that she got the information that her husband was attacked and getting the aforesaid information, she reached to the scene of offence and found that her husband was lying speechless. She started crying and thereafter PWs.2 and 3 appeared at the scene of offence. With this evidence on record, the learned Counsel Mr. T. Bali Reddy submitted that PWs.2 and 3 arrived at the scene of offence much after the attack on the deceased was over and he was lying on the ground speechless. Therefore, it was submitted by the learned Counsel that the evidence of PWs.2 and 3 is very much doubtful, who claimed to be the eye witnesses to the incident.

While rebutting the aforesaid arguments, the learned Public Prosecutor appearing on behalf of the State brought to my notice some of the admissions given by PW6 in the cross-examination conducted by the Public Prosecutor. In the cross-examination PW6 stated that she was not aware whether her husband had gone in the morning. She was not also aware whether PWs.2 and 3 had accompanied her husband. She further stated in the cross-examination that she did not tell before the Police that on her going to the scene of offence, she had seen her husband lying on the ground speechless.

Taking into consideration the evidence of PW6, this Court has no hesitation in holding that the lady is aged about 60 years. Her husband was attacked and died. There was no reason for her to turn hostile and not to support the prosecution. Though she was declared hostile, this Court holds that there is no reason to disbelieve the evidence of PW6, Though she might not have stated before the Police (hat she had seen her husband lying speechless when she went to the scene of offence. But the fact remains that her evidence to the effect that on hearing her cries. PWs.2 and 3 appeared at the scene of offence has not been challenged by the prosecution in the cross-examination. Therefore, this Court holds that the presence of PWs.2 and 3 at the scene of offence itself becomes doubtful. Therefore, the evidence of PWs.2 and 3 cannot be accepted, as it is.

There is one more reason to discard the evidence of PW3 though he claims to be the eye-witness, he did not give a statement before the Police u/s 161 Cr.P.C. His evidence was led before the Court without recording his statement u/s 161 Cr.P.C. The lame excuse lias been given by PW15 stating that he could not trace out PW3 before filing the charge-sheet in the Magistrate''s Court.

Whatever may be the reason that the statement of PW3 was not recorded by the Police, PW3 claims to be an eye witness and he also claims to be the close associate of the deceased and he prefers not to give a statement before the Police. Thus, this fact itself creates a doubt whether PW3 was an eye witness to the incident. Under these circumstances, the evidence of PWs.2 and 3 is discarded.

According to the version of prosecution, Ex.P14 was given by the deceased himself and on the strength of Ex.P14, the offence came to be registered against the accused punishable u/s 302 r/w Section 34 1.P.C.

The learned Counsel Mr. T. Bali Reddy appearing on behalf of the accused-appellants submitted at the Bar that Ex.P14 cannot be treated as dying declaration and the existence of Ex.P14 is itself doubtful. The learned Counsel brought to my notice that the deceased was aged about 77 years. He was mercilessly beaten by some persons and he was lying speechless at the scene of offence as per (he version of PW6, who happened to be the wife of the deceased. Under these circumstances, it was submitted by the learned Counsel for the accused-appellants that Ex.P14 cannot be treated as dying declaration and it cannot be a piece of evidence which can be called as a reliable evidence so as to base the conviction of the accused-appellants solely on the dying declaration.

This Court is in agreement with the submission made by the learned Counsel for the accused-appellants. In order to establish the fact that the deceased was lying speechless, the learned Counsel for the accused-appellants invited my attention to the evidence of PW10, who had conducted the autopsy on the dead body of the deceased. The doctor in the cross-examination has admitted that the deceased was aged about 77 years and the age was one of the factors contributing for aggravating the death due to the injuries noticed by him on the person of the deceased. The doctor further agreed in the cross-examination that shock means Hematogenic shock and the shock might have set in immediately on the deceased receiving the injuries noted by him. The evidence given by the doctor is in the form of opinion evidence. But, that has been fortified by the evidence of PWG, the wife of the deceased, who has emphatically stated that the deceased was lying at the scene of offence and he was speechless.

Considering the above factual position on record, this Court holds that the existence of Ex.P14 itself is doubtful.

Taking all the above facts into consideration, this Court holds that the order of conviction and sentence imposed against the accused-appellants is uncalled for. Therefore, it is set aside. The accused-appellants are acquitted of all the charges levelled against them. Their bail bonds stand cancelled. The fine amount, if any paid, be refunded to the accused-appellants.

In the result, the appeal stands allowed.