DURGASI SEETHA v. TALACHUTLAS RAJARATNAMNAIDU VIZIANAGARAM DIST

Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to pleased to: i) allow the Criminal Appeal, by setting aside Judgment passed in S.C.No. 48 of 2002 dt. 29-1-2016 on the file of the I Additional Sessions Judge at Vizianagaram; ii) and to grant such other relief or releifs as IA NO: 1 OF 2016(CRLAMP 819 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to the petitioner / appellant to file Criminal Appeal against the judgment passed in S.C.No.48/2002 on the file of the I Additional Sessions Judge at Vizianagaram pending disposal of the Criminal appeal and to pass IA NO: 2 OF 2016(CRLAMP 28836 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Counsel for the Apellant:

#1. TADDI NAGESWARA RAO Counsel for the Respodent(S):

#1. T V SRI DEVI

#2. PUBLIC PROSECUTOR (AP) The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI WEDNESDAY, THIS THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 676 of 2016 JUDGMENT: (Per the Hon’ble Sri Justice Subba Reddy Satti) The wife of deceased No.1, P.W.3 filed the above appeal under Section 372 Cr.P.C., against judgment of acquittal in S.C.No.48 of 2002 dated 29.02.2016, passed by learned I Additional Sessions Judge, Vizianagaram.

#2. Acting upon the complaint dated 30.09.2001 Ex.P1 made by P.W.2, the S.I. of Police, Budarayavalasa Police Station (since died not examined) registered Crime No.49 of 2001 against A1 to A35. Pending the Sessions Case, even before framing charges, A1 and A7 died and hence, the case against them was abated.

#3. Accused Nos.2 to 6 and 8 to 35 were tried by the learned Additional Sessions Judge under the following charges: First charge was under Section 148 I.P.C. against A2 to A35; Second charge was under Section 148 read with 149 I.P.C. against A2 to A6, A8 to A35 along with A1 and A7; Third charge was under Section 452 read with 149 I.P.C. against A2 to A6, A8 to A35 along with A1 and A7; Fourth charge was under Section 427 read with 149 I.P.C. against A2, to A6, A8 to A35 along with A1 and A7 (since died); Fifth charge was under Section 302 read with 34 I.P.C. against A2 to A4 and A9; Sixth charge was under Section 302 I.P.C. against A9; Seventh charge was under Section 302 read with 34 I.P.C. against A29 and A31; Eight charge was under Section 324 I.P.C. against A18; Ninth charge was under Section 324 I.P.C. against A31 and A32; Tenth charge was under Section 324 I.P.C. against A9; Eleventh charge was under Section 324 I.P.C. against A7; Twelfth charge was under Section 324 I.P.C. against A27; Thirteenth charge was under Section 323 I.P.C. against A23; Fourteenth charge was under Section 324 I.P.C. against A6, A13 and A33. Fifteenth charge was under Section 324 I.P.C. against A15; Sixteenth charge was under Section 324 I.P.C. against A17 and A35; Seventeenth charge was under Section 324 I.P.C. against A12 and A22; Eighteenth charge was under Section 324 I.P.C. against A7, A8, A16 and A24; Nineteenth charge was under Section 341 I.P.C. against A20 and A21 and; The Twentieth charge was under Section 324 I.P.C. against A34.

#4. Substance of the charge is that all the accused on 30.09.2001, at about 6:30 A.M., formed into an unlawful assembly with a common object to wreak vengeance against the group consisting of L.Ws.1 to 31, lead by Mandala Ramanamohana Rao and committed the offence of rioting, attacked Durgasi Krishna (hereinafter referred to as ‘deceased No.1’) and Duri Tavudu (hereinafter referred to as ‘deceased No.2’) and caused their death; caused injuries to P.Ws.3 and 7 to 15; and damaged the properties of P.Ws.16 to 20.

#5. After completion of trial, the learned Additional Sessions Judge, by judgment dated 29.02.2016, acquitted all the accused, holding that the prosecution failed to prove the guilt of the accused in respect of the aforementioned charges. Aggrieved by the same, the wife of deceased No.1, examined as P.W.3, filed the above appeal.

#6. The case of the prosecution, in brief, is that (i) On 30.09.2001, at about 7.30 AM to 8:00 AM, while deceased No.1 was talking with his brother, P.W.2 and his wife, P.W.3, on pial of their house, some people pelted stones at a time. P.W.2 rushed into his house, opposite the house of deceased No.1. Deceased No.1 and his wife tried to go into their house. A9 tried to poke deceased No.1 with a spear; however, deceased No.1 escaped from the blow. A2 to A4 caught hold of deceased No.1 and dragged him out. A1 poked deceased No.1 with a spear on his chest, due to which deceased No.1 fell on the ground and succumbed to injuries. When P.W.3 interfered, A9 beat her with the stick portion of the spear. P.W.1, who witnessed the incident, found all the accused armed with sticks, spears and knives. Thereafter, all the accused left the house of deceased No.1 by beating the available persons and proceeded towards the house of deceased No.2. After the accused left the place, P.W.2 and others attended to deceased No.1. (ii) On the same day, at about 8:00 AM, while deceased No.2 was returning from his fields and reached near the house of P.W.5, A29 and A31 beat deceased No.2 with stones and sticks, and A9 poked/stabbed deceased No.2 with a spear on the left side of abdomen, due to which, deceased No.2 fell on ground. P.Ws.22 and 23 lifted deceased No.2 to his house and later took him in a rickshaw of P.W.24 to Budarayavalasa Police Station. The Police took deceased No.2 to Cheepurupalli Government Hospital in a Police jeep. Subsequently, deceased No.2 was shifted to Government Hospital, Vizianagaram and thereafter to KGH, Visakhapatnam, where deceased No.2 succumbed to injuries at 8:40 PM, on 03.10.2001, while undergoing treatment. (iii) A9 and A18 beat P.W.3 and P.W.6, with a spear and a stick, due to which they received simple injuries. Exs.P49 and P50 are respective wound certificates. P.W.15 sustained simple injuries due to pelting of stones on him, and Ex.P60 is his wound certificate. A31 and A32 pelted stones on P.W.7, due to which he received simple injuries and Ex.P51 is the wound certificate. A29 beat P.W.8 with a stick, and he received simple injuries. Ex.P52 is the wound certificate. A7 beat P.W.9 with a stick, and Ex.P53 is his wound certificate. A23 beat P.W.10 with stones, and A27 pelted stones on him, due to which P.W.10 received simple injuries and Ex.P54 is the wound certificate. A6 beat P.W.11, with hands and Ex.P55 is his wound certificate. Due to the pelting of stones by A6, A13 and A33, P.W.12 received injuries, and Ex. 56 is his wound certificate. P.W.13 sustained injuries in the hands of A21 and A15, who hit him with their hands and pelted stones, respectively. Ex.P57 is his wound certificate. A17 and A35 pelted stones on P.W.14, due to which he received simple injuries. P.W.14 was also beaten by A7, A8, A16, A25 and A1 with sticks, stones and a spear. Ex.P59 is his wound certificate. (iv) During the attack, some of the accused trespassed into the house of P.Ws.16 and 20 and damaged their household articles. A5 and A10 damaged P.W.16’s household articles; A11 and A14 damaged the household articles of P.W.17; A18 and A24 damaged the household articles of P.W.18; A26 and A24 threw away the household articles (saman) of P.W.19 and took away the mirchi bag; and A28 damaged P.W.20’s household articles and took away 28 Kgs of rice bag. (v) Sub Inspector of Police, L.W.53, on receiving a phone call at

8.45 AM, proceeded to the village and brought the situation under control by posting a Police picket and guard. (vi) P.W.2 drafted a report through L.W.27 at his house and presented the report, Ex.P1, to S.I. of Police, L.W.53, who in turn, registered the same as Crime No. 49 of 2001 at about 10:30 AM on

30.09.2001 (Ex.P62), and sent copies of the F.I.R. to all the concerned. (vii) P.W.35, Inspector of Police, along with staff, reached the village at 11:45 AM and reached the scene of offence in front of the house of deceased No.1. He drafted scene observation report, Ex.P29 in the presence of P.W.25 and another, and seized M.Os.10, 11 and 12 i.e. the sticks, bungle tiles pieces and controlled earth. He also photographed the scene of offence with the help of a private photographer, P.W.21. Exs.P3 to P28 are photographs. P.W.35 conducted inquest over the dead body of deceased No.1 in the presence of panchayatdars. The Inquest report is marked as Ex.P31. During the inquest, P.W.35 examined and recorded statements of P.W.1 and other blood relatives of deceased No.1. He prepared a rough sketch of the scene of the offence, Ex.P63. He sent the body for postmortem examination. (viii) On 01.10.2001, P.W.28, Deputy Civil Surgeon, Community Health Centre, Aganampudi, conducted autopsy over the dead body of deceased No.1. She opined the cause of death was due to haemorrhage of shock due to injury to the vital organ, liver. The Postmortem report issued by P.W.28 is marked as Ex.P44. SECOND SCENE OF OFFENCE (ix) P.W.35, after receiving information about attack on deceased No.2, he along with mediators and staff, at 5:30 PM, on

30.09.2001, went to the second scene of offence, a vacant site situated in front of the tiled house of P.W.5, which is in the North-West direction of the first scene of offence. He examined P.Ws.4 and 5 and recorded their statements. He prepared Exs.P30 and P64, scene observation report and rough sketch of the second scene of offence. (x) Thereafter, he reached Government Hospital, Cheepurupalli at 8:00 PM and came to know that deceased No.2, P.Ws.15 and 14 were shifted to Headquarters Hospital, Vizianagaram for better treatment. He examined P.Ws.6 to 13 and another and recorded their statements. He also examined the photographer and recorded his statement. (xi) On 01.10.2001, at about 5:15 AM, P.W.35 went to Uttaravilli village and came to know that the houses of P.Ws.16 to 20 and L.W.16, Ramayya, were damaged and some articles were taken away by some of the accused. P.W.35 secured the presence of P.W.27 and another and visited the houses of P.Ws.14 and 16 to 20. He recorded statements of P.Ws.16 to 20 and got prepared scene observation reports Exs.P39 and 40, respectively. (xii) Thereafter, P.W.35 went to the well, where the original galata took place and prepared a scene observation report Ex.P41. Later, he went to the Government Headquarters Hospital, Vizianagaram, at about 3:30 PM, where P.Ws.14 and 15 were undergoing treatment. He seized the clothes of P.W.14 and prepared the occurrence report. However, neither the mediators’ report nor the occurrence report was marked. (xiii) Thereafter, at 6:30 PM, P.W.35 went to K.G.H., Visakhapatnam, where deceased No.2 was undergoing treatment and recorded his statement. The said statement is not exhibited. On

02.10.2001, P.W.35 recorded the statements of P.Ws.7 and 24, who shifted deceased No.2 to the Police Station. (xiv) On 03.10.2001 at 12:15 PM, P.W.35, along with his staff, apprehended A1, A4, A6, A7, A12, A15 to A18, A21, A22, A25, A27, A32 and A35 at the mango shed of Pedda Reddi, near Venkateswara Cinema Hall of Merakamudidam village and recorded their confessional statements. The confessional statements of A1, A7 and A18 are marked as Exs.P32, P33 and P34. P.W.35 sent them to judicial remand. A1 led P.W.35 to Mangali Street of Uttaravilli Village at about 4:00 PM and produced a spear. P.W.35 prepared Ex.P35. A7 led P.W.35 and others to the tiled house and produced a stick, which was seized under mediators’ report Ex.P36. A18 led P.W.35 and others to his house and produced a stick which was seized under mediators’ report, Ex.P37. (xv) P.W.35, after receiving information about the death of deceased No.2 on 03.10.2001 at about 8:40 PM, secured the presence of P.W.26 and others on 04.10.2001, and went to KGH, Visakhapatnam. He held inquest over the dead body of deceased No.2. Ex.P38 is the inquest report of deceased No.2. At the inquest, P.W.35 examined P.Ws.23 and others and recorded their statements. (xvi) On 30.09.2001 at about 8:20 PM, on receiving requisition, Ex.P46 from Causality Medical Officer, K.G.H. Visakhapatnam, P.W.31, for recording dying declaration of deceased No.2, P.W.30, learned IV Metropolitan Magistrate, Visakhapatnam, recorded dying declaration of deceased No.2, Ex.P47, in the operation theatre. As per Ex.P46, requisition, the time mentioned is 5:30 PM. The patient was prepared for surgery. Ex.P48 is the letter addressed by P.W.30 to the Judicial Magistrate of First Class, Cheepurupalli, transmitting the dying declaration of deceased No.2. (xvii) On 05.10.2001, P.W.29 conducted the postmortem over the dead body of deceased No.2 and issued Ex.P45 postmortem certificate. He opined the cause of death is due to “septic and toxic complications of peritonitis due to penetrating abdominal injury, associated with injury to the left lung. (xviii) P.W.32 Civil Assistant surgeon, Community Health Centre, Chipurapalli, issued wound certificates of PWs 3, 6 to 14 and 16. Wound certificates are marked as Exs.49 to 60, respectively. (xix) P.W.35 also examined the Chief of the second unit surgery, K.G.H., Visakhapatnam. The case sheet and history sheet are marked as Exs.P61 and P62, respectively. (xx) On 05.10.2001, on receiving credible information, P.W.35, along with P.W.25 and another, reached Garbham village market yard junction shed and arrested A9, A13, A29, A31 and A33 and recorded their statements. The admissible portion of the confessional statement of A9 is marked as Ex.P42. A9 led the team to his house at Devara Street, Uttaravalli village and produced a spear, which was seized under Ex.P43, mediators’ report. He arrested A9, A13, A29, A31 and A33 and sent them for judicial remand on the same day. P.W.35 also arrested A5, A2, A10, A11, A14, A19, A20, A26, A28, A30 and A34 and sent them to judicial custody. (xxi) On 15.10.2001, A23 and A24 surrendered before P.W.35. He sent them to judicial remand. Later, P.W.35 sent the material objects to RFSL under a letter of advice, and the RFSL report is marked as Ex.P65. On 15.11.2001, A3 and A8 surrendered before P.W.35. After completing the investigation, P.W.35 filed a final report/charge sheet.

#7. In support of its case, the prosecution examined P.Ws.1 to 35, marked Exs.P1 to P65 and exhibited M.Os.1 to 15. The contradictions were marked as Exs.D1 to D6.

#8. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them.

#9. The trial Court, after considering the ocular and documentary evidence, found A2 to A6 and A8 to A35 not guilty of the offences aforementioned and acquitted them under Section 235 (1) Cr.P.C. Aggrieved by the said judgment, the above appeal is filed by P.W.3, wife of deceased No.1.

#10. Heard Sri Tadi Nageswara Rao, learned counsel for the appellant, Sri Upendra, learned counsel representing Smt. T.V. Sridevi, learned counsel for respondents/A3 to A5, A7, A9, A12, A14 and A30 and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the State.

#11. Learned counsel the appellant would contend prosecution proved the guilt of the accused beyond a reasonable doubt. He would contend that the trial Court failed to appreciate the evidence of P.Ws.1 to 3, 6, 10 and 11, direct witnesses to the offence committed causing death of deceased No.1 and the evidence of P.Ws.4, 5 and 12, direct witnesses, to the offence committed against deceased No.2. He would also submit that the trial Court failed to consider the dying declaration Ex.P47 recorded by the Magistrate, P.W.30.

#12. Sri Upendra, learned counsel for the respondents, on the other hand, would contend that the trial Court considered every aspect and eventually found the accused ‘not guilty’. He would submit that P.Ws.1 to 3, 6, 10 and 11 and P.Ws.4, 5 and 12 are planted witnesses. He would submit that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt. He would further contend that the prosecution withheld the statement of the 2nd deceased, recorded in the Police Station and also the statements recorded by P.W.35. He would submit that deceased No.2 died in the hospital due to other medical complications.

#13. We have carefully scrutinised the material available on record.

#14. Before proceeding further, let this court examine the scope of the appeal against acquittal, as per the judicial precedents rendered by the Apex Court.

#15. The Hon’ble Apex Court in Gopal Reddy Vs State of Andhra Pradesh1, considered the jurisdiction of the High Court in an appeal filed under Sec 378 Cr.P.C. against an order of acquittal, after considering the relevant decisions on the point, observed as follows: “9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for ‘substantial and