K. Dasthagiri and Another vs State of A.P.

Ramesh Madhav Bapat, J.—The accused Nos.1 to 3 in Sessions Case No.307 of 1992, which was decided by the First Additional Sessions Judge, Cuddapah, are the appellants herein. Initially A-1 to A-3 were tried for an offence punishable u/s 148 I.P.C. A-1 and A-2 were tried for an offence punishable u/s 302 I.P.C. A-3 to A-9 were tried for an offence punishable u/s 302 read with section 149 I.P.C. A-3 to A-9 were tried for an offence punishable u/s 307 I.P.C. A-1 to A-9 were tried for an offence punishable under sections 3 and 5 of the Explosive Substances Act. On evidence the learned Judge convicted A-1 to A-3. A-1 was convicted and sentenced to suffer imprisonment for life of the offence punishable u/s 302 I.P.C. and also to pay a fine of Rs.1000/- in default to suffer S.I. for three months. A-2 was convicted and sentenced to suffer R.I. for 7 years of the offence punishable u/s 304 Part-II I.P.C. and also to pay a fine of Rs.1000/- in default to suffer S.I. for three months. A-3 was convicted of an offence punishable u/s 307 I.P.C and was sentenced to suffer R.I. for 5 years and also to pay a fine of Rs.1000/- in default to suffer S.I. for three months. A-1 toA-3 were further convicted of the offences punishable under sections 3 and 5 of the Explosive Substances Act and they were sentenced to suffer R.I. for two years and also to pay a fine of Rs.500/- in default to suffer S.I. for two months on each count. All the substantive sentences imposed upon the accused were made to run concurrently.

The gravemen of the charge against the accused was that on 19-8-1991 at about 8-45 p.m. A-1 to A-3 hurled bombs resulting in the death of two persons. The motive behind the attack was that P.W.1 and A-1 had strained relations between them as they belong to two different political parties and different factions.

Three days prior to the incident, the accused party were suspected to have damaged the electric motor of L.Ws.8 and 9 belonging to complainant''s party.

The prosecution case can briefly be narrated as follows: That all the prosecution witnesses and the accused are the residents of K. Kothapalli village. P.W.1, A-2 and A-5 were employees of India Cement Factory, Chilamakur, Cuddapah District. On 19-8-1991 at about 8-45 p.m. P.W.1 and the deceased Adinarayana Reddy were sitting on the pial near their house at Nagulakatta, they saw one Balaji, who was the follower of A-1, was passing through that place. P.W.1 and the deceased called Balaji to enquire as to why their electric motors were damaged on the previous day. Balaji went away towards the house of A-1 without replying. The house of A-1 is to the west of Nagulakatta. The distance between A-1''s house and Nagulakatta is about 30 to 40 yards. The house of A-1 and A-3 are visible to the persons sitting at Nagulakatta. 10 or 15 minutes thereafter all the accused persons and some other persons came out of the house of A-1 armed with sickles and bombs. Seeing the accused, P.W.1 and the deceased got down from the pial. A-1 was saying that who would escape to-day and on saying so hurled a bomb on P.W.1. The bomb hurled by A-1 fell in front of the deceased. When the deceased tried to run away, A-1 hurled another bomb, which fell on the back side of the deceased and exploded as a result of which the deceased fell down. When P.W.1 went to lift the deceased, A-2 hurled a bomb on P.W.1. Meanwhile the wife of P.W.1 named Vijayalakshmi came to save P.W.1. The bomb hurled by A-2 hit Vijayalakshmi on the left side of her neck and exploded and then she fell down. When P.W.1 tried to run away, A-3 hurled a bomb. She fell behind P.W.1, which caused splinter injuries on the back and left hand of P.W.1. When the people of P.W.1 came to the place of occurrence, all the other accused viz., A-4 to A-9 hurled bombs on them. They sustained injuries. Then all the accused fled away from the scene of offence.

It is further stated by the prosecution that when P.W.1 went to see his wife, she was found dead. The deceased Adinarayana Reddy was groaning. Then P.W.1 and others took the injured to the hospital at Muddanur by car. By the time they reached the hospital, Adinarayana Reddy succumbed to the injuries in the car itself. At about 10-30 p.m. P.W.1 went to Muddanur Police Station and gave a written complaint Ex.P-1. P.W.8, who was the then S.I. of Police, Muddanur Police Station, on receipt of Ex.P-1, registered the case against the accused and despatched the copies of F.I.R. to all concerned. On receipt of information over VHF, the Inspector of Police, P.W.9 rushed to the Police Station, Muddanur. P.W.9 along with P.W.6 and two others acted as mediators and prepared the inquest report Ex.P-2. M.O.3 is the bloodstained shirt and M.O.4 is the polyester pant, M.O.5 is the bomb splinters and M.O.6 is the waist thread, which was seized by P.W.9 under the panchanama in the presence of mediators. P.W.9 examined all the injured persons and recorded the statements of P.Ws.1 to 5. Then they were sent to the Government Hospital for treatment. Meanwhile the dead body of Adinarayana Reddy was sent to Jammalamadugu Government Hospital for post mortem examination. P.W.8 had already deputed one Head Constable to the village K. Kothapalli to guard the scene of offence and the dead body of Vijayalakshmi was sent to P.W.7, who was then working as Civil Assistant Surgeon, Government Hospital, Jammalamadugu for conducting post-mortem examination. The Doctor also examined P.Ws.1 to 5 and after examination, he issued Ex.P-4 to P-8, the wound certificates. P.W.7 opined that the injuries noticed on the person of P.Ws.1 to 5 were simple in nature. On the same day basing on a requisition, P.W.7 conducted autopsy over the dead body of the deceased Adinarayana Reddy and issued post-mortem certificate Ex.P-9. P.W.7 opined that the deceased died of shock and haemorrhage due to injuries to the chest, lungs and other parts of the body. M.O.1 four stone pieces and cotton thread pieces recovered from the body of the deceased Adinarayana Reddy.

On 20-8-1991 at about 6-30 p.m. P.W.9 along with the S.I. of Police, police staff and the mediators reached K. Kothapalli and held inquest over the dead body of the deceased Vijayalakshmi. Ex.P-3 is the inquest report. Some incriminating articles M.Os.7 to 9 were attached from the person of Vijayalakshmi. P.W.9 seized M.O.10 blood stained earth and M.O.11 control earth. After completion of inquest, P.W.9 sent the dead body of Vijayalakshmi to the Government Hospital, Jammalamadugu for post-mortem examination.

On 20-8-1991 P.W.7 conducted autopsy over the dead body of Vijayalakshmi and issued Ex.P-10 the post-mortem certificate. M.O.2 is the bottle containing one small glass piece and one small stone recovered from the body of the deceased Vijayalakshmi. P.W.7 opined that the deceased died because of shock and haemorrhage due to injuries on the head and neck. On 8-9-1991 P.W.9 arrested A-2 to A-9 and A-1 was also arrested on 26-9-1991. They were produced before the Munsif Magistrate and they were remanded to judicial custody. Thus on completion of investigation, the charge sheet was filed by P.W.10, the Inspector of Police.

In order to connect the accused with the crime, the prosecution led the evidence of P.Ws.1 to 10. They also produced certain documents and they were marked as Exs.P-1 to P-16. Some contradictions Exs.D-1 to D-5 were marked by the defence in the cross-examination of the prosecution witnesses.

9.In order to establish the fact that the deceased died homicidal death, the prosecution mainly relied upon the evidence of P.W.6, who acted as an inquest panch, which was conducted by P.W.9. The inquest report in respect of Adinarayana Reddy is marked as Ex.P-2 and the inquest report in respect of Vijayalakshmi is marked as Ex.P-3. After the inquest was over, both the dead bodies on different dates were sent to P.W.7 for conducting autopsy over the dead bodies of the deceased. P.W.7 happened to be the Civil Assistant Surgeon, Government Hospital, Jammalamadugu. He commenced the post-mortem examination on the dead body of Adinarayana Reddy and noticed the following external injuries on the person of the deceased.

1) Lacerated injury of 6" x 5" x Bone deep over back of chest of inter scapula region. Blackish discoloration of tissues of the wound. Muscles of back lacerated. Blood clots present over lacerated muscle ends. Fractured ends of ribs and spinous process of thorasic vertibra present. Blood clots present over wound edges. There is blackish and yellowish discoloration of skin surrounding wound edges.

2) Multiple blackish abrasions of variable sizes from 3 mm to 1 cm scattered over left side of front of chest. Infra axiallery region, epigastric region, left hypochondric region. Yellow discoloration of skin surrounding abrasions present.

3) Blackish abrasion of 1" x 1/2" over front of neck 1 cm below chin.

4) Blackish abrasion of 11/2" x 1/2" over middle of forehead.

5) Blackish abrasion of 1" x 1/2" over front of left patella.

6) Multiple blackish abrasions of 5 mm to 1 cm over front and lateral aspect of upper 1/3rd of both thighs.

7) Blackish abrasion of 1/2" x 1/4" over front of left fore arm 1" above the left wrist. Blackish discoloration surrounding skin present.

8) Lacerated injury of 1" x 1/2" x skin deep over front of left fore arm 2" below left elbow joint. Blood clots present over wound edges. Blackish discoloration present surrounding wound edges.

On internal examination, P.W.7 noticed the following internal injuries on the person of the deceased Adinarayana Reddy.

In correspondence to the injury No.1 fracture to the rib into multiple pieces from 2 to 8 on right side of chest and 2 to 7 on left side or chest. Blood clots present over fracture ends of bone. Fracture of spinous process and vertibral body from P-4 P-7. Blood clots present over fracture ends of bone. 600 ml. of blood present in left thorasic cavity. 500 ml of blood present in right thorasic cavity. Lacerated injury over posterior aspect of lower lobes of both lungs. Blood clots present over wound edges. 5 stone pieces and cotton thread pieces are recovered from the said injury.

P.W.7 also conducted the autopsy over the dead body of the deceased Vijayalakshmi and noticed the following external injuries on the person of the deceased.

1) Lacerated injury of 8" x 4" x bone deep over left side of neck over supra clavicular area, extending upwards upto the tip of mastoid process. There is blackish doscoloration of tissues of the wound. Muscles of neck lacerated. Fracture ends of transverse process of cervical vertebra visible. Blood present over fractured ends of bone. Stone pieces and glass pieces present over the flour of the wound. Blood clots present over edges of the wound.

2) Lacerated injury over left aurcular area, size of 2" x 1" x bone deep. There is complete loss of left ear lobule. Blackening of the tissues of the wound. Blood clots present over wound edges.

3) Lacerated injury of 11/2" x 1" Muscle deep over the front of left shoulder. Blackish discoloration of tissues of the wound. Blood clots present over wound edges. Yellowish discoloration of skin surrounding wound edges.

4) Blackish abrasion of 1" x 1/2" over front of left elbow.

On internal examination, P.W.7 noticed the following internal injuries on the person of the deceased Vijayalakshmi.

Head: Fracture of left temporal bone. Blood clots present over fractured ends of bone.

Neck: Transverse process and body of cervical vertebra from 3 to 7 are fractured. Blood clots present over fractured ends of bone.

2) Muscles and vessels on left side of the neck lacerated.

3) Stone pieces and glass pieces recovered from external injury No.1.

4)Body and greater corum of hyoid bone on left side fractured. Blood clots present over fractured ends of bone.

Thorax: 1.Contusion of apex of the left lung.

2) 300 ml of blood present in the left thorax cavity.

According to his observations, he issued the post-mortem certificates. Ex.P-9 is the post-mortem certificate in respect of Adinarayana Reddy and Ex.P-10 is the post-mortem certificate in respect of Vijayalakshmi. The deceased Adinarayana Reddy died of shock and haemorrhage due to injury to the chest, lungs and other injuries on other parts of the body. The deceased Vijayalakshmi died of shock and haemorrhage due to injury on head and neck.

Considering the evidence on the point of homicidal death, we hold that the prosecution did prove that both the persons died homicidal death.

As stated earlier, the prosecution examined P.Ws.1 to 10. Out of them P.W.1 is the only person appears to be an eye witness to the incident whereas P.Ws.2 to 5 appeared at the scene of offence when A-1 and A-2 hurled bombs and killed the deceased.

The learned counsel appearing on behalf of the accused-appellants submitted at the Bar that even the presence of P.W.1 at the scene of offence at the relevant time is doubtful. The learned counsel submitted that as per the evidence of P.W.1 himself that initially A-1 hurled the bomb on the place where he and the deceased Adinarayana Reddy were sitting. He further stated that the bomb hurled on them caused injuries to Adinarayana Reddy but did not cause any injury to him. When Adinarayana Reddy started running, the second bomb was hurled by A-1 which fell in front of the deceased Adinarayana Reddy and exploded. In respect of hurlings of two bombs on both the persons, not a single injury was caused by hurling of the bombs by A-1. Therefore, it was submitted that it is difficult to believe that P.W.1 was present at the scene of offence.

We are not in agreement with the submission made by the learned counsel for the defence for the reason that it is a chance that it did not hit P.W.1, it means that he does not present at the time of occurrence at the scene of the offence. The evidence of P.W.1 gets further support by Ex.P-1, which was reached at the Police Station within two hours from the time of the offence in which P.W.1 has given a narration as to how A-1 and other accused had hurled bombs causing injuries to him and P.Ws.2 to 5. Under these circumstances, we are not prepared to accept the submission of the learned counsel that the presence of P.W.1 at the scene of offence is doubtful.

It is not necessary that number of prosecution witnesses will come before the Court and it is the quality of the evidence has to be weighed. The evidence of P.W.1 is believed in all respects. P.W.1 was cross-examined at length but nothing is elicited in the cross-examination so as to disbelieve the evidence of P.W.1 from any angle. Therefore, we hold that the evidence of P.W.1 is worthy believing which is corroborated by Ex.P-1 and is also further corroborated by the medical evidence. Therefore, we are of the considered view that A-1 was responsible for causing the death of Adinarayana Reddy and therefore we further hold that A-1 was rightly convicted and sentenced to suffer imprisonment for life.

It appears from the record that A-4 to A-9 were acquitted of all the charges levelled against them. The State of Andhra Pradesh did not prefer any appeal against the order of acquittal. Therefore, it is not necessary to discuss the evidence, which was led against those accused.

It further appears from the judgment of the trial court that the trial court convicted A-2 for an offence punishable u/s 304 Part-II IPC and sentenced him to suffer R.I. for seven (7) years and also to pay a fine of Rs.1000/- in default to suffer S.I. for three months. It appears from the record that the learned Judge relied upon a ruling reported in GURMAIL SINGH V. STATE OF PUNJAB1 in which their Lordships were pleased to observe as under:

"From the evidence on record and the established circumstances, it is not possible to say with certainty that the appellant intended to cause the death of Rekha. Even though the principle contained in Section 301 IPC would be applicable to the case, it appears to us that the appellant can only be clothed with the knowledge that the injury which he was causing was likely to cause death of Rekha but without any intention to cause her death or to cause such bodily injury as is likely to cause death. The offence under the circumstances, would be one which would fall u/s.304 Part-II IPC."

Therefore, we hold that A-2 had hurled bomb on P.W.1 but his wife in order to save her husband came in the middle land it hit to her and she succumbed to the injuries. It is sufficiently proved from the evidence of P.W.1 himself. Therefore, we find that there is no reason to interfere with the order of conviction and sentence recorded by the learned Judge against A-2.

A-3 was convicted and sentenced to suffer R.I. for five years and to pay a fine of Rs.1000/ in default to suffer S.I. for three months of the offence punishable u/s 307 IPC. A-3 had hurled bomb towards P.W.1 and by which P.W.1 had sustained injuries. As A-3 had hurled explosive substance ie., a country made bomb towards P.W.1, his act of throwing bomb itself would go to prove that he made an attempt to kill P.W.1 but unfortunately he saved. Therefore, the order of conviction and sentence recorded against A-3 can be sustained and it is accordingly sustained.

A-1 to A-3 were rightly convicted for the offences punishable under sections 3 and 5 of the Explosive Substances Act, which was proved through the mouth of P.W.1.

It further appears from the record, we observed that there is a glaring irregularity in recording the evidence of P.W.1. The evidence of P.W.1 commenced on 28-12-1994. The examination-in-chief was over and the cross-examination of P.W.1 was deferred to 17-2-1995. Again on that day P.W.1 was partly cross-examined and it was deferred to 24-2-1995 and only on that day the cross-examination P.W.1 was completed. Then the evidence of P.W.2 commenced on 4-5-1995 with a gap of practically three months and it was over on the same day. The evidence of P.W.3 commenced on 22-5-1995 and the same was over on the same day. Thus, it can be seen that the recording of evidence commenced on 28-12-1994 and the last witness was completed on 3-10-1997. It means that recording of evidence went on for about two years. This practice of recording such evidence and giving such type of adjournments is deprecated. The Registry is directed to bring to the notice of the learned Judge, who is committed the glaring mistake.

Considering the above facts, we hold that the order of convictions and sentences recorded against A-1 to A-3 in Sessions Case No.307 of 1992 by the I Addl. Sessions Judge, Cuddapah is hereby confirmed.

Thus, the Criminal Appeal is dismissed.