Periyaswamy Sangi and Another vs State

Ramesh Madhav Bapat, J.—The accused-appellants herein were tried by the III Additional Sessions Judge, East Godavari at Kakinada in Sessions Case No. 300 of 94 for the offence punishable u/s 302 read with Section 34, I.P.C. On evidence the learned Judge found that no offence disclosed against both the appellants punishable u/s 302 read with Section 34, I.P.C. But the learned Judge came to the conclusion that accused No. 1 was guilty of the offence punishable u/s 304, Part II, IPC and therefore the said accused-appellant was convicted by the learned Sessions Judge and was sentenced to suffer Rigorous Imprisonment for six years. The Judge further found that accused No. 2 was guilty of an offence punishable u/s 324, I.P.C. and therefore convicted him and sentenced him to suffer Rigorous Imprisonment for one year.

Aggrieved by the aforesaid orders of conviction and sentence, the accused-appellants have approached this Court in appeal on various grounds as stated in the appeal memo.

The prosecution story can be briefly as follows:

The accused Nos. 1 and 2 are the driver and cleaner of the lorry bearing No. AHT 9299 which belongs to Messrs. Pandian Transport, Visakhapatnam. The deceased Adusumilli Rangarao and Vujjana Appalaswamy are the driver and cleaner of a lorry bearing No. A.P. 31-T. 4794, respectively.

It is further stated in the prosecution that the accused after filling the L.P. Gas in the gas tanker AHT 9299 at Visakhapatnam on 4-11-1993 at 12 noon left for Bangalore and at about 8 p.m. they crossed the Commercial Check Post, Tuni and while reaching opposite to the petrol bunk of Chakka Ramamurthy, at Velampeta their lorry hit the back right side portion of lorry A.P. 31. T.4794 and it resulted in slight damage to the right side danger light. On seeing the same, the deceased driver stopped his lorry and went to the accused driver and abused him in filthy language for hitting their lorry. On that the accused driver got down from the lorry and beat Appalaswamy and on seeing this the deceased driver came and questioned the man and went to the rescue of Appalaswamy. A-2 got down from the lorry with a screw driver and stabbed the deceased on the above right eyebrow. The accused No. 1 kicked him on his testicles and the deceased fell down by raising cries. Appalaswamy went to the petrol bunk and brought some water and the deceased after taking small quantity of water died on the spot.

It is further stated in the prosecution that though the accused attempted to scare away from the scene of offence, the witnesses namely Petrol Bunk people detained them at the spot and advised the cleaner to give report to the police. Accordingly the cleaner reported the matter to the police which was registered by the S.I. of Police and the offence came to be registered against the accused u/s 302/34, I.P.C. During the investigation the statements of various witnesses were recorded. The panchanama of scene of offence was prepared. The incriminating articles were attached from the scene of offence. Thus on completion of investigation, the charge sheet was filed.

The evidence of the accused is of total denial. It is also suggested by the accused that they were not responsible for the death of the deceased.

The prosecution laid evidence of as many as 10 witnesses i.e., P.W.1 to P.W.10. P.W.1 happens to be the cleaner of a lorry bearing No. A.P. 31T. 4794 who gave the first information regarding the offence in question at the police station. Ex.P-1 is the statement given by P.W.1. P.W.2 happens to be the employee of the Petrol Bunk. P.W.3 is also employee of the Petrol Bunk. P.W.4 is the Manager of Transport Company. The lorry belonging to said Company was driven by the accused. P.W.5 is a photographer. P.W.6 is a panch witness who had attested the panchanama of the scene of offence. P.W.10 had recovered a screw driver from the scene of offence. P.W.7 happens to be the Magistrate who had recorded the statement of P.W.1; the statement was marked as Ex. P-12. P.W.8 happens to be a Doctor who conducted autopsy on the dead body of the deceased and P.W.9 and P.W.10 are the Investigating Officers.

In order to establish that the deceased died homicidal death, the prosecution relied upon the evidence of P.W.10 Investigating Officer who had conducted the inquest in the presence of P.W.6. The inquest was proved by the prosecution by leading the evidence of P.W.6 and the inquest report is now produced on record as Ex.P-10. After the panchanama was over, the dead body was removed to the Government Hospital, Tuni for carrying out the post-mortem examination. The post-mortem examination was conducted by the Doctor Bhimasankaram who happened to work as Civil Assistant Surgeon, Government Hospital, Tuni. He was examined to prove P.M. notes.

On external examination, Doctor Bhimasankaram noticed the following external injuries on the deceased:-

(1) An abrasion on the front of the right ear lobe 1 x 1/4, bleeding present.

(2) A lacerated injury transversely placed on the lateral end of the right eyebrow 1/2 x 1/8 oozing of blood present.

(3) An abrasion on the medial side of the back of the left elbow joint, 2 1/2" x 1/14.

(4) An abrasion on the middle of the inner side of the right arm 1"x 1/2" in size.

(5) An abrasion on the right side of the protusial skin, 1" x 1/2" black in colour shrunken.

(6) An abrasion 1" above the injury No. 5 and it is 1" x 1/4" black in colour and shrunken.

(7) An abrasion on the front of the right side of the scrotum 2 1/2" x 1/2," in size, dark red in colour.

(8) An abrasion on the lateral and inferior aspect of the left side of the scrotum over the left testis area, 4" x 1/2" in size.

(9) A contusion is present on the upper end and anterior aspect of the left scrotum, 3 1/2 x 2" black in colour.

(10) Blood stains present on the upper part of the medial side of the left thigh, facing the scrotum.

(11) Extravasation of blood from the vessels of the subcutaneous tissues of the left scrotal tissue.

(12) Dark red blood coming out from the left ear.

But in the internal examination, the Doctor did not find any abnormalities. According to the opinion of the Doctor, the deceased died due to shock and cardiac arrest caused by heavy blow over the testis. He further opined that the deceased must have died 18 to 24 hours prior to the date of post-mortem examination. Ex.P-13 is the postmortem examination certificate issued by him. On the evidence of the Doctor coupled with the post mortem certificate, Ex.P-13 and evidence on the point of inquest, this Court holds that the prosecution has been able to establish that the deceased died homicidal death.

As stated earlier, the prosecution mainly relied upon the evidence of P.W.1 to P.W.3 who claimed to be eye-witnessess to the incident. Unfortunately, all the three witnesses turned hostile, they did not support the prosecution and therefore, with the permission of the learned Sessions Judge the prosecution cross-examined all the three witnesses but nothing is elicited in the cross-examination.

As stated earlier, the other witnesses whose evidence was laid by the prosecution in the trial Court are not the eye-witnessess of this incident.

From the judgment it appears that the learned judge convicted the accused appellants. First appellant was convicted and sentenced for an offence u/s 304 Part II, I.P.C. and the 2nd accused /appellant was convicted and sentenced for the offence punishable u/s 324, I.P.C. The learned Judge relied upon Ex, P-1 which happens to be the First Information Report filed by P.W.1 immediately after the occurrence of the offence. The learned Judge further relied upon the statement of P.W.1 recorded by the Magistrate u/s 164, Cr.P.C. who was examined as P.W.7.

In fact, the learned Sessions Judge has relied upon two documents and proceeded to convict the appellant. As stated earlier, Ex.P-1 is the first information report filed by P.W.1 u/s 154, Cr. P.C. immediately after the occurrence of the offence. On the strength of the said report, the offence came to be registered against the accused/appellants. It appears that the learned Sessions Judge has totally forgotten the fact that the first information report is not a substantive piece of evidence. Ex.P-1 first information report can only be used for the purpose of corroborating the evidence of P.W.1 or any person who gives such report. The substantive evidence is the evidence which is laid before the trial Court by leading oral evidence. The learned Judge has to see whether the substantive evidence laid before him corroborates with Ex. P-1 or otherwise. But it appears from the present case though P.W.1 turned totally hostile, the learned judge proceeded to rely upon Ex.P-1 for passing order of conviction against the accused appellants which is totally illegal and uncalled for. The learned Sessions Judge is directed to get himself acquainted with the provisions contained u/s 154, Cr. P.C.

It further appears from the record that the evidence of the learned Magistrate was led before the learned Sessions Judge. The Magistrate was examined as P.W.7 who had recorded the statement of P.W.1 u/s 164, Cr. P.C.

It further appears from the record that the learned Sessions Judge relied upon the said document that is statement recorded by the Magistrate u/s 164, Cr.P.C. and it was marked as Ex.P-12.

This Court holds that the learned Sessions Judge committed a grave mistake in relying upon Ex.P-12, a statement u/s 164, Cr. P.C. for basing conviction. It further appears to this Court that the learned Sessions Judge is not aware of the provisions contained u/s 74 and Section 75 of the Evidence Act. It is not necessary to prove statement of witness recorded by the Magistrate u/s 164, Cr.P.C. by calling him in the witness box. Moreover, statement recorded by the Magistrate u/s 164, Cr.P.C. is not substantive piece of evidence. The same statement can only be used for contradicting the said witness u/s 145 of the Evidence Act. Statement recorded u/s 164, Cr.P.C. was taken to be a substantive evidence by the learned Sessions Judge for basing conviction. The said act of the learned Judge is totally illegal and uncalled for.

It appears to this Court that it is a common practice in State of A.P. to call the Magistrate for proving the statement recorded by the Magistrate u/s 164, Cr. P.C., thereby closing his Court for day or two. Such practice should be stopped forthwith.

Taking into consideration the judgment of the learned Sessions Judge, it appears that order of conviction was passed by him for convicting the accused on a statement recorded u/s 154, Cr.P.C. by the Police Officer and the other statement recorded by the Magistrate u/s 164, Cr. P.C, both the documents are not evidence in law. Therefore, this Court finds that the order of conviction recorded by the learned Sessions Judge against the accused-appellants is bad in law. Therefore, it is set aside. The bail bonds executed by the accused stand cancelled. Thus the appeal filed by the appellants stands allowed.