Kunisetti Apparao and Others vs State of A.P.

P.S. Narayana, J.—Accused Nos.2 and 3 in Sessions Case No.180 of 1995 on the file of the Court of the 1st Additional District and Sessions Judge, East Godavari at Rajahmundry, had preferred Criminal Appeal No.1762 of 1998. Like wise Accused Nos.4, 5 and A-6 preferred Criminal Appeal Nos.1771 of 1998,1772 of 1998 and 1773 of 1998 respectively. The case was registered as in Cr.No.158 of 1990 of Jaggampeta Police station and the Additional Judicial First Class Magistrate, Peddapuram had taken the same as PRC No.13 of 1992 and committed the same to the Court of Session. Later, it was made over to the Court of the 1st Additional District and Sessions Judge, East Godavari at Rajahmundry. The accused were prosecuted for the offences under Sections.148, 324, 326, 307 and 302 of the Indian Penal Code,1860.

The version of the prosecution is that all the accused are residents of Rajapudi village, belonging to "Padamara Kapu" by community and are close associates. Chandraparapu Ramu (hereinafter referred to as the deceased for the purpose of convenience) who belonged to "Toorupu Kapu" by community was also resident of same village. About three years back one Kunisetty Veeramani has filed a case against A-5 and A-5 had a strong suspicion that PW.1 and the deceased and their people were instrumental in getting the said case filed. As such A-5 was inimically disposed off towards PW.1 and his people. Thus, the "Toorupu Kapu" community people were at loggerheads with the "Padamara Kapu" community people. On 25-12-1990 at 7.00 P.M PW.1 tried to get into the van going to Rajapudi from Gokavaram. At that time, A-1 also seated in the said van along with other passengers and due to rush of passengers, the hand of PW1 accidentally touched him. Due to previous ill-feelings, A-1 pushed away PW.1 and the van was in moment. He could not get in. Later, PW.1 get into a bus and reached Rajapudi center at about 7.30 P.M. At that time, all the accused armed lethal weapons formed into an unlawful assembly with the common intention of beating their opponents, and were waiting there. On seeing PW.1, A-1 shouted and exhorted others to beat him. So, shouting A-1 beat PW.1 with stick on his left forehead, A-3 beat pw.1 with stick on his chest and all the accused beat him indiscriminately. Then, the deceased Chandrarapu Ramu, who is the father-in-law of PW.1 went to his rescue. Then A-1 beat him with stick knife (karra kathi) above his left eye; A-3 beat the deceased with stick behind his right hand. A-5 beat the deceased with stick on his left temple and on his mouth; A-6 beat him with stick indiscriminately. Then PW.2, M.Veeraraju intervened. A-2 beat him with stick on his left wrist; A-3 beat him with stick on his buttocks and on his head, A-4 beat him with stout stick on his left leg, and also on his left knee cap, A-7 be at him with stout stick on his right knee cap and also on his back. When pw.3, P.Satyanarayana intervened, A-1 beat him with stick knife near his right ear, A-2 beat him with stout stick on his right knee, A-5 beat him with stout stick on his back, and A-6 beat him with stout stick on his head. When PW.4, D. Appa Rao intervened, A-2 beat him with stout stick on his left elbow. Later all the accused left the scene. PW.1 removed the injured to the police Station and presented a report. PW.14 M.Venkateswara Rao S.I of Police, Jaggampet P.S. registered the same as F.I.R and sent all the injured to the Government Hospital, Peddapuram. In the said rioting incident, A-1, A-5 and another person also sustained injuries and they were admitted in the Government hospital and on intimation police recorded the statements and a case in Cr.No.159 of 1990 was registered. As the deceased succumbed to the injuries at the Government hospital, on 1-1-1991 at 12.15 A.M, an intimation of death was sent to P.S and section of law was altered to Section 302 of I.P.C. The case against A-9 was separated and numbered as PRC.4 of 1995 and committed to the Court of Session which was taken on file as Sessions Case No.180 of 1995. The Trial Court framed the following charges as against the accused as specified hereunder:-

A charge u/s 148 of IPC against A-1 to A-8

A charge u/s 302 of IPC against A-1, A-3,A-5 and A-6 for murder of the deceased, C.Ramu;

A charge u/s 302 read with 149 IPC against A-2, A-4,A-7 and A-8 for murder of the deceased, C.Ramu;

A charge u/s 307 I.P.C. against A-1 and A-3 for attempt to murder PW.1, D.Suryanarayana;

A charge u/s 307 read with 149 IPC against A-2 and A-4 to A-8 for attempt to murder PW.1, D.Suryanarayana;

A charge u/s 326 IPC against A-2,A-3,A-4 and A-7 for causing grievous hurt to PW.2 M.Veerraju;

A charge u/s 324 IPC against A-1, A-2 ,A-5 and A-6 for causing hurt to PW.3, P.Satyanarayana; and

A charge u/s 324 IPC against A-2 for causing hurt to PW.4 D.Appa Rao

In view of the fact that the accused pleaded not guilty, they were tried. PWs.1 to PWs.15 were examined on behalf of the prosecution and Exs.P-1 to Ex.P-20 were marked. On behalf of the defence, Dws.1 to Dw.3 were examined and Exs.D-1 to D-8 were marked. On appreciation of evidence available on record, the learned Judge convicted A-2 and A-3 u/s 326 and 324 IPC, and A-4 to A-6 u/s 324 IPC. Hence the Criminal appeals as referred to supra had been preferred by the respective accused.

Sri Challa Dhanamjaya, the learned counsel representing appellants/accused in all these matters would contend that in the First Information Report specific overt-acts had been attributed only to A-1 and general allegations made against other accused. The learned Judge having given benefit of doubt to Accused No.1, convicting the appellants definitely cannot be sustained. The learned counsel also would submit that the evidence of PW.14 also in a way would support the version of the defence to the effect that scene of offence as alleged by the prosecution is doubtful, but, infact, the scene of offence is the house of the accused. The learned counsel also would contend that it is also the version of the prosecution and there is evidence available on record that a crime had been registered as against the prosecution party also, but the same was referred on the ground of "mistake of fact". In the course of same incident, the injuries had been sustained even by the accused and failure to explain the injuries on the accused may have to be viewed with suspicion. The learned counsel also would submit that Ex.P-1 was lodged by PW.1 and on the same day, it is stated that 161 Cr.P.C. statement also had been recorded by the police at the same time. Though in Ex.P-1, details relating to overt-acts of the others had not been mentioned , but, surprisingly on the same day, it is stated that he made a statement narrating all the details in the said statement under 161 Cr.P.C. This aspect also may have to be taken into consideration. The learned counsel also pointed out that PW.4 also deposed about the injuries sustained by certain accused. In case of private defence, it is always not necessary to take a specific plea and on material available on record, if the Court is satisfied that a case of private defence had been made out, the accused are entitled for acquittal. The learned counsel while further elaborating his submissions would contend that it is not as though at the place of alleged offence, other witnesses were not available, several shop-keepers are available but none of the independent witnesses had been examined. Hence, in view of these inherent improbabilities in the version of the prosecution, the accused are entitled to benefit of doubt. The learned counsel placed reliance on certain decisions to substantiate his submissions.

On the contrary, the learned Additional Public Prosecutor would submit that the FIR need not contain all the details on the mere fact that the 161 Cr.P.C. statement of PW1 has been recorded on the same day and certain details have been mentioned would not alter the situation in any way. The learned Additional Public Prosecutor would further submit that the evidence of PW-1 is clear and categorical. At best, the investigating officer would have visited one of the places as PW-1 has deposed about the two places of incident and the mere fact that the incriminating material had not been detected by the investigating officer also cannot enure to the benefit of the accused. The learned Counsel also would submit that even otherwise, in view of the clear evidence of the injured witnesses, well supported by the medical evidence, the minor discrepancies, if any, cannot result in recording of acquittal. The mere fact that A1 was acquitted also will not enure to the benefit of the other accused. The learned Additional Public Prosecutor also placed reliance on certain decisions.

As can be seen from the version of the prosecution as deposed to by PW-1 and PW-14 the investigating officer and also DW-3 the father of A7, it is clear that in the village "Padamara Kapu" and "Toorupu kapu" are the two communities and the accused party belongs to Padamara Kapu and the prosecution party belongs to "Toorupu kapu". It is also not in controversy that "Toorupu Kapus" in the village are in large number whereas Padamara Kapu-accused party, are in smaller number. Apart from this aspect of the matter, there is yet another aspect that PW-1 himself deposed that certain accused sustained injuries. The evidence of the Investigating officer would disclose that a crime was registered on the complaint given by the accused also, but the same was referred as ''mistake of fact''. Yet another aspect is that the evidence of D.W-1 and DW-2 would disclose that the accused also sustained injuries and DW-2, in fact, deposed about the injuries being grievous too. These injuries sustained by the accused no doubt had not been explained by the prosecution. It is no doubt true that necessarily in all case, the prosecution need not explain the injuries on the person of the accused. In the present case Ex.P-1 reads as hereunder-

"On 25-12-90, I boarded bus at Jaggampet and got down at Rajapudi center at 7-30 p.m., 1) Kunisetti Veerababu, 2) Kunisetti Appa Rao, 3) Kunisetti Venkateswarlu, 4) Kunisetti Krishna, 5) Kunisetti Babu Rao @ Maridayya, 6) Kunisetti Nookaraju, 7) Kunisetti Subba Rao, 8) Kunisetti Ramau, 9) Kunisetti Nookaraju, S/o Nagaraju and some others so saying that we have to beat the son of bitch who has come from east, is coming and they came with knives and sticks, Kunisetti Veerababu hacked with a knife on my fore head, when the others came with sticks to beat me, 1) Gandreddi Someswararao, 2) Mummana Raghava and some others intervened and some others went to my house and informed, then my father-in-law, Chandaparapu Ramu, Midde Veerraju, Pinisetti Sathiraju, Punisetti Gabngarao, Dhanamsetti Appa Rao came. They (above 9 persons) also beat them with suspicion that previously we helped Kunisetti Veeramani to lodge a case against Kunisetti Appa Rao S/o, Gapayya, they conspired together and tried to kill me. As they beat on the hand of Chandaparapu Ramu seriously, the hand is broken. The others also were sustained wounds with blood.

Hence, I request to take appropriate action against the above persons and do justice."

The overt-act of Veerababu hacking with a knife has been specifically mentioned in Ex.P-1 and general allegations against the other accused that they came with sticks and beat him, had been made. In the 161Cr.P.C. statement no doubt overt-acts in detail appeared to have been stated by PW-1, which had been recorded on the same day. It is no doubt true that the statement u/s 161 of the Code of Criminal Procedure,1973 cannot be used as evidence by either of the parties, at the best certain portions thereof may be used as contradictions while cross-examining the witnesses, who had deposed before the Court. The evidence of PW-1 is to the effect that the incident had taken place on 25-12-1990 at 7-45 p.m. near the bus stand Rajapudi. On the date of this incident, he closed his shop at Jaggampeta at 6-30 p.m. and reached Jaggampeta Bus stand at 7 p.m. to go to his village Rajapudi. By the time, he went to Jaggampeta bus stand a Van came to the bus stand, which was going towards Rajapudi side, he tried to board the said van and caught hold of the door to get into the van but his hand touched A1 and A1 pushed him. Then he fell down and the van left that place towards Rajapudi side. When A1 pushed him from the van he scolded A-1 Five minutes after the van left that place RTC bus came to the bus stand and he boarded the said bus to go to Rajapudi. He got down from the bus at Rajapudi bus stand at 7-10 p.m. After getting down from the bus, he saw A-1 to A-8 armed with weapons. A-1 was armed with ''Karra Kathi''. A2 to A8 were armed with sticks. A-1 came to him along with A-2 to A-8 and instigated A-2 to A-8 to beat him by saying so. A-1 beat him with Karra Kathi on his left side of the head, as a result he received bleeding injury. Then, A-3 beat him with a stick on his left side chest as a result he received scratch injury on his left side chest. Then, A-2, and A-4 to A-8 tried to beat him with sticks and in the meanwhile G.Someswararao and M.Raghava were present at the place came to his rescue and separated the accused from him while they were taking him towards his house again A-1 to A8 came and attacked him at Boru Dibba which is near their village. At that time A-2, A-4 and A-7 beat him with sticks. A-2 beat him with stick on his right shoulder, A-4 beat him with a stick on his nose, and A-6 beat him on his back side. When the accused were attacking him M.Raghava and G. Someswara Rao left that place to inform about this incident to his relations. Then, when the other accused tried to beat him and his relations, his father-in-law Chandparpu Ramu (the deceased) came to the scene of offence. One M. Veerraju, P.Satyanarayana, D. Appa Rao and one P.Ganga Rao also came to the scene along with his father-in-law and when they intervened to rescue him, then A-1 hacked the deceased Chandaparpu Ramu with Karra Kathi on his left side of the head. A-3 beat the deceased with a stick on his right side hand. A-5 and A-6 beat the deceased with sticks. A-5 beat the deceased with a stick on his left side head. A-6 beat the deceased with a stick on his right side face near the nose and on right side back. Then A-1 to A-8 beat M. Veerraju, P.Satyanarayana, D. Appa Rao and P. Ganga Rao, as a result they received injury and fell down on the ground. Then all the accused left the scene of offence. This witness also deposed about the presenting of Ex.P1 report to the Station House Officer, Jaggapeta Police Station. In the cross-examination, this witness admitted that there are 800 families of their community in his village and there are 50 families belong to the accused community and several details have been elicited relating to the scene of offence and the other particulars in the cross-examination. This witness deposed that the first incident was near the village and the second incident was near Boru Dibba and this witness also deposed about Ex.P-1 report. This witness deposed that he sustained incised injury, when A-1 attacked him with Karra Kathi on his head and the deceased also sustained incised injury on his head when A-1 attacked him with Karra Kathi. Several details relating to Ex.P-1 had been put to this witness and no doubt several of the suggestions have been denied by this witness. It was specifically suggested that in the village people are afraid of the prosecution party on the ground that they would have doing rowdism in the village. PW-1 also deposed that it is not true that the accused left their houses due to fear and they demolished their houses. This is the evidence of PW-1.

PW-2, PW-3, and PW-4 also had deposed in substance and corroborating the evidence of PW-1. PW-4 no doubt admitted that he learnt that one or two accused received injuries in the same incident. PW-5 also deposed about these details. PW-6, PW-7, and PW-8 were declared hostile. PW-9 is the Civil Assistant Surgeon, who deposed about the examination of PW1 and the injuries on the person of PW1, PW2, PW3 and PW4 and this witness also deposed about the wound certificates Exs.P5, P6, P7 and P8 issued by him and also deposed that he is of the opinion that the injury Nos.1,5 and 9 on the body of the deceased are grievous in nature and the other injuries are simple in nature. This witness also deposed about Ex.P-9 wound certificate. PW-10 is the Doctor who had conducted Post-mortem over the dead body of the deceased. PW-11 is the Assistant Radiologist, who had deposed about Ex.P-12 abstract of Medico Legal Report of Chandrarapu Ramu relating to his X-rays. PW-12 simply deposed about the Circle Inspector of Police, Peddapuram holding inquest over the dead body of the deceased in his presence and in the presence of the other panchayatdars of J. Gopala Rao and S. Subrahmanyam, and the C.I. of Police at the time of inquest examined blood relatives of the deceased and recorded detailed statements. This witness deposed about certain details of investigation and further investigation was done by his successor, who had filed the charge sheet. PW14 is the Sub- inspector of Police, who had deposed about the details of investigation. PW-15 is the Inspector of Police, who filed the charge sheet.

As per the material available on record most part of the investigation was done by PW-14. PW-14 specifically deposed that he did not find any incriminating material or bloodstains at the scene of offence. In his cross examination, this witness deposed that while giving evidence in his chief examination he perused the C.D. and gave evidence, and it is true that the C.D., discloses that when the prosecution witnesses went upon the houses of the accused, then the prosecution witnesses received injuries. This witness also stated that A-7 stated to him that he received invisible injuries at the time of the incident and stated that there is no need to send him to the hospital for treatment. In the C.D. concerned in this case, it is mentioned that A-1, A-5 and another person by name K. Nagaraju sustained injuries at the time of this incident. A-3 also came to the Police Station on 26-12-1990 with injuries and stated that he received injuries at the time of the incident and he sent him to Peddapuram Government Hospital for treatment. He visited the houses of the accused prior to their arrest and he did not note the conditions of their houses in his C.D. This witness also cross- examined at length regarding the statements and other aspects and also in relation to Ex.P-1 and certain omissions and contradictions were also put to this witness and certain suggestions were made which had been denied. In further cross-examination, this witness admitted that he registered Cr.No.159 of 1990 under Sections 147, 148 and 324 IPC against Dhanisetti Suribabu, second son of Middey appanna, fourth son of Pinisetty Nookaiah, the father-in-law of Ganisetty Suribabu and five others of Rajapudi on the complaint given by Kunisetty veera Venkata satyanarayana (A-1). Ex.D-7 is the Photostat copy of the F.I.R. in Cr.No.159 of 1990. As per C.D. the offence in the said case took place near the bus stop, Rajapudi. In his re-examination, he deposed that the case under Ex.D7 was referred as mistake of fact by his successor on 15-10-1991. This is the evidence of PW14 Investigating officer. Thus, the evidence of PW-1, PW-4 and PW-14 would disclose that certain injuries had been sustained even by the accused in the same incident and that no incriminating material was found at the time of the alleged scene of occurrence according to PW-14. It is also admitted that the prosecution party is the majority party and the accused are the minor party and specific suggestions were put to PW.1 that even the houses were demolished and out of fear they fled away from the village. The evidence of DW-1 and DW-2 would assume lot of importance since these doctors have deposed about the injuries sustained by the accused. It is no doubt true that the non-explanation of the injuries on the person of the accused always may not enure to the benefit of the accused. Apart from the evidence of DW-1 and DW-2, DW-3 was also examined, who is the father of A-7, who had deposed in detail how the incident had happened.

In the light of this material available on record, submissions at length were made that in view of the suggestions put to PW-1, the evidence of PW-4 and PW-14 as well reflected from the investigation, the registration of the crime as against the prosecution party, referring the same and the injuries sustained by the accused as deposed to by D.W1 and DW2 and the doubt relating to the scene of offence whether it was at the house of the accused or at the place where PW-1 had deposed in the light of the evidence of DW-3 and whether the prosecution party was aggressor party on the fateful day or the accused party was the aggressor party and whether the incident happened as alleged by the prosecution or not.

In LAKSHMI SINGH V. STATE OF BIHAR it was held as follows:

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to through doubt on the prosecution case.

It was also further held in the said decision, which reads as follows::-

"The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one".

In RAGHUNATH V. STATE OF HARYANA, it was held, which reads as follows:-

"The genesis of the prosecution story with regard to the place of occurrence viz. the hall, in which the accused party is stated to have assaulted the complainant party is doubtful. It would be inherently improbable for the accused-nine in number, to have wielded and rained blows at the same time with lathis of six-feet long in a hall within the radius of six feet with seven numbers of the complainant party totaling 16 persons in the room".

It was also further held in the said decision, which reads as follows:-

"non explanation of injuries of grievous nature sustained by accused would render story of the prosecution doubtful."

Reliance was also placed in ABDUL KADIR V. STATE OF ASSAM and in BAHADUR SINGH V. STATE OF PUNJAB to substantiate the contention relating to the plea of right of private of defence.

The learned Additional Public Prosecutor placed reliance on the decision reported in OM PRAKASH V. STATE OF UTTARANCHAL and would contend that-

"FIR need not contain an exhaustive account of the incident and all essential and relevant details of incident given in F.I.R. giving few more details in her evidence, and evidence given by witness cannot be doubted on the ground that there is improvement".

Though PW-1, the other witnesses, the eye witnesses-injured specifically deposed as against A-1, benefit of doubt was given to A-1 and acquittal had been recorded and the same had attained finality. The contents of Ex.P1 had been referred to supra. The evidence of DW1, DW2 would go to show that the accused persons also received injuries and evidently, during the course of the same incident. The evidence of PW-4 is clear and categorical that at the scene of offence, no incriminating material has been detected. So, the scene of offence as per the prosecution version itself would become doubtful especially, in the light of the specific stand taken by the accused party that the prosecution party is the majority community party and is the aggressor party, which had taken aggressive attitude coming over the house of the accused party, as a result of which, the scuffle happened on the fateful day. It is no doubt true that the right of private defence to be established by defence and there are certain limitations in applying the plea of defence of private defence, especially in the cases of free fight. But, however, the evidence of PW-14 the investigating officer also would clearly disclose and suggestive of the plea of right of private defence. Specific suggestions were posed to PW1 that the prosecution party would be resorting to rowdism and, in fact, afraid of them, the accused party had fled away and the houses had also been demolished. In the light of this factual background and inasmuch as the right of private defence always cannot be weighed in golden scales, especially in the light of the evidence of PW1, PW4, PW14, D.W-1, DW-2, DW-3 and also in the light of the allegations made in Ex.P1 and the acquittal recorded in relation to A-1, this Court is of the considered opinion that definitely the appellants are also entitled to the benefit of doubt. In view of the same, the findings recorded by the learned Judge in this regard cannot be sustained. Accordingly, the conviction and sentence imposed against the appellants-accused are hereby set aside.

Accordingly, the Criminal Appeals are allowed. The bail bonds shall stand cancelled.