Bollavaram Malleswara Reddy v. Bareddy Bhaskara Reddy & Ors.

Judgment

(Per the Hon’ble Sri Justice Subba Reddy Satti) Questioning the judgment of acquittal passed by the learned III Additional Sessions Judge, Kurnool at Nandyal, in Sessions Case No.350 of 2013, dated 25.01.2018, the de facto complainant (P.W.1) filed the present Criminal Appeal.

#2. Respondents 1 to 7/Accused 1 to 7 were tried by the learned Additional Sessions Judge under the following charges: (i) The first charge was under Section 148 IPC against A-1 to A-7. (ii) The second charge was under Section 302 IPC against A-1 to A-4. (iii) The third charge was under Sec.302 r/w 149 IPC against A-5 to A-7 (iv) The last charge was under Sec.307 IPC against A-2 & A-5 to A-7.

#3. The parties to this appeal are referred to as they were arrayed in Sessions Case No.350 of 2013, for the sake of convenience.

#4. Gravamen of the charge is that on 14.10.2012 at about 10.30 p.m., near the fields on Pesaravai rastha, outskirts of Bojanam village, Bandi Atmakur Mandal, A-1 to A-7 with a common intention, formed themselves into an unlawful assembly with deadly weapons, such as axes and sticks, and committed the offence of rioting; caused death of B.Sivarami Reddy (hereinafter referred to as deceased No.1) and Mallu Rameswara Reddy (hereinafter referred to as deceased No.2); that A-1 to A-4 hacked the deceased Nos.1 and 2 with axes and caused bleeding injuries and committed homicide of deceased Nos.1 and 2; that A-5 to A-7 assisted A-1 to A-4 in committing the offence of homicide and in that process, they beat the deceased Nos.1 and 2 with sticks; further, A-2 also beat P.W.3 with stick portion of axe and caused injuries; A-5 to A-7 beat P.W.1 with sticks and caused injuries and thereby committed offences punishable under Section 148, 302, 302 r/w 149 and 307 IPC.

#5. After completion of trial, the learned Additional Sessions Judge, having disbelieved the evidence of prosecution witnesses, acquitted the accused 1 to 7 of the aforesaid charges by judgment dated 25.01.2018 in

S.C.No.350 of 2013. Aggrieved by the same, the present Criminal Appeal was filed.

#6. The case of the prosecution, in brief, is that: (i) All the accused, deceased Nos.1 and 2 and other material witnesses are residents of Bojanam village, Bandi Atmakur Mandal. Fourteen years prior to the incident, A-1 and his followers murdered one Addakula Subbarayudu, and they were claiming supremacy in the village. Six months prior to the incident, A-1 and his family members raised a dispute with the father of P.W.3, as the accused suspected that P.W.1 and his supporters were gaining supremacy in the village. (ii) On 14.10.2012 at about 10.00 a.m., the deceased No.1 sowed jowar seeds in his land and requested the villagers not to take more water from the canal. P.W.1, along with P.Ws.2 to 5 and deceased Nos. 1 and 2, went to the agricultural fields at about 9.00 p.m. on 14.10.2012 and observed overflowing of water into the fields of deceased No.1. They went to the channel to check the water flow and observed that A-3 & A-5 to A-7 were standing near the channel. They questioned A-3, who in turn replied that he needed more water for his fields. P.Ws.2 to 4 removed the bund from the channel, and A-3 threatened them with dire consequences and left the place. P.Ws.1 to 6 and deceased Nos. 1 and 2 were standing near the south corner of the fields of deceased No.1. After half an hour, they observed two motorcycles coming there, which were parked at a distance of 20 feet. With the help of torchlights, they observed that A-1 to A-4 were armed with axes and A-5 to A-7 were armed with sticks. On seeing them, A-1 shouted and attacked on the head of the deceased No.2. A-1 to A-4 also hacked deceased No.2 with axes, and A-5 to A-7 beat with sticks. When the accused tried to catch hold of others, they ran away from that place due to fear. The accused chased the others till the fields of Swamy Das, where deceased No.1 fell and someone beat him, but P.W.1 did not observe who beat D1. After moving forward, P.W.1 turned back and observed A-1 to A-4 hacking deceased No.1 on his head, and A-5 to A-7 beat him with sticks. When P.W.1 tried to rescue deceased No.1, A-5 to A-7 beat him with sticks on his head. P.W.1 escaped from their clutches and went to the maize fields of D.Chinna Hussain and hid in the crop, which is 7 feet height. The accused searched for P.W.1 in the fields with torch lights; however could not trace him and left the place by uttering <Malla Dorukutadu Yekadiki Velthadu=. After 5 minutes, P.W.1 came out of the maize fields and found deceased No.1 had died. P.Ws.5, 6 and others came, and thereafter P.W.1 informed the incident to father of the deceased No.1. (iii) P.Ws.2 and 4 to 6 shifted the deceased No.2 to the Government Hospital, Nandyal, where he succumbed injuries. Meanwhile, all the villagers gathered at the scene of the offence. P.W.1 went home and gave a report to P.W.13 Sub Inspector of Police, who visited the scene of the offence. Ex.P1 is the report. Police sent P.W.1 to Government Hospital, Nandyal, for treatment at about 6.30 a.m. (iv) P.W.13 on receipt of phone call from Bojanam village about galata at Burugumanu fields, rushed to the village along with other police. By that time, he reached the road of Pesaravai, and he observed villagers standing on the road, who led the police to the scene of the offence. He, along with his staff, observed deceased No.1 lying dead. Immediately, he informed the same to the Inspector of Police- P.W.14. None of the persons near the scene of the offence came forward to give a complaint. He came to know that P.W.1 received injuries in the galata. He, along with his staff, went to the house of P.W.1 at Bojanam village at about 2.00 a.m., and P.W.1 presented a written complaint. P.W.13 sent one constable to get the case registered through the Station House Officer, Bandi Atmakur Police Station. Head Constable received the complaint and registered a case in Crime No.112 of 2012 under Section 147, 148, 307, 302 r/w 149 IPC and issued express F.I.Rs to all the concerned. Ex.P15 is the F.I.R. P.W.13 took photographs at the scene of the offence. Exs.P12 and P13 are photographs. (v) Thereafter, P.W.14 Inspector of Police went to Bojanam village at about 2.30 a.m. and went to the scene of the offence along with P.W.1. He examined P.W.1 and recorded his statement. He instructed P.W.13 to send P.W.1 to the Government Hospital, who sent P.W.1 to the hospital along with a constable, along with a memo. (vi) P.W.14 observed blood stains at the scene of the offence. He secured the presence of panchayatdars and conducted inquest over the dead body of deceased No.1. During the inquest, he examined P.Ws.2 to 5 and others and recorded their statements. Ex.P16 is the inquest report. P.W.14 observed one charging light near the head of deceased No.1. He seized charging light-M.O.8 and also control earth and blood stain earth-M.Os.11 and 12. He also prepared a rough sketch-Ex.P23. Inquest was concluded at about 9.00 a.m., and the dead body was sent to the Government Hospital for autopsy. Thereafter, he went to Government Hospital, Nandyal and conducted the inquest over the dead body of deceased No.2 at the mortuary. Ex.P17 is the inquest report of deceased No.2. During the inquest, he examined P.W.6 and recorded his statement. After the completion of the inquest, he sent the dead body for the autopsy. After the completion of the inquest of deceased No.2, P.W.14 visited the scene of the offence and prepared Ex.P8 observation panchanama. (vii) P.W.10 Civil Assistant Surgeon conducted autopsy over the dead body of deceased No.1 and issued Ex.P8 post mortem certificate. He opined that the cause of death was due to injury No.1, due to intracranial haemorrhage and injury to the brain. He also examined P.W.3 on 15.10.2012 at about 11.30 a.m. and found two small abrasions. He issued a wound certificate-Ex.P9. He opined that the age of the injury is 12 to 24 hours prior to his examination. (viii) P.W.11 Civil Assistant Surgeon conducted the autopsy over the dead body of deceased No.2 and issued Ex.P10 post mortem certificate. He opined that the cause of death was due to shock due to intracerebral haemorrhage. (ix) P.W.12 Civil Assistant Surgeon, District Hospital, Nandyal, examined P.W.1 at about 7.00 a.m. on 15.10.2012 and issued Ex.P11 wound certificate. According to P.W.12, the age of the injury is 12 to 18 hours prior to his examination, and the injury is simple in nature. (x) On 19.10.2012, on credible information, P.W.14 secured the panchayatdars and, along with P.W.13 and staff, proceeded Lingapuram Crossroads and observed 7 persons coming from the opposite side. He identified A-1 and others and caught hold of them. A-1 confessed the commission of offence in the presence of panchayatdars. He recorded a confessional statement–Ex.P13, arrested A-1 to A-7, seized the vehicles-M.O.s.1 and 10 under the cover of Ex.P14. A-1 to A-7 led the police team to the fields, to the west of the KC canal, and brought four axes-M.O.s.1 to 4 and sticks-M.O. 5 to 7. (ix) P.W.14 sent the blood-stained M.Os.1 to 4, control earth and blood-stained earth to the FSL for examination along with Ex.P19 requisition and Ex.P20 letter of advice. He received the RFSL report (Ex.P21). After the completion of the investigation, P.W.14 filed the charge sheet.

#7. In support of its case, the prosecution examined P.Ws.1 to 14, marked Exs.P1 to P23 and exhibited M.Os.1 to 12. Exs.D1 to D15 were marked on behalf of the accused.

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

#9. Learned Additional Sessions Judge, on appreciation of both ocular and documentary evidence of the prosecution witnesses, found all the accused not guilty and acquitted the accused of all the aforementioned charges.

#10. Heard Sri Posani Venkateswarlu, learned senior counsel assisted by Sri Penumaka Venkata Rao, learned counsel for the appellant, Sri T.Niranjan Reddy, learned senior counsel assisted by Sri B.S.Reddy, learned counsel for the accused 1 to 7, and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State.

#11. Learned senior counsel the appellant, while vigorously opposing the judgment of the learned Sessions Judge, made the following submissions: (i) P.Ws.1 and 2 are the injured witnesses; however, the learned Addl. Sessions Judge failed to appreciate their evidence in proper perspective. (ii) P.Ws.1 to 6 are eye witnesses to the incident, and P.Ws.2 and 5 are witnesses to the inquest; however, their evidence was not properly appreciated. (iii) The statement of deceased No.2 was not recorded by the outpost police as deposed by P.W. 12, Medical officer. (iv) A counter case in Crime No.113 of 2012 of Bandi Atmakur Police Station was registered. (v) The findings recorded by the learned Additional Sessions Judge are contrary the evidence and relied upon the minor contradictions. (vi) The evidence in toto needs to be considered to find the ring of truth. (vii) The discrepancy in timing is only a minor contradiction. The latches on the part of the prosecution are not grounds for acquittal. Thus, learned senior counsel would submit that the learned Addl Sessions Judge failed to consider the above aspects and prayed to allow the appeal and convict the accused 1 to 7.

#12. On the other hand, Sri T.Niranjan Reddy, learned senior counsel, while supporting the judgment eloquently, would submit that the learned Sessions Judge recorded findings after considering ocular and documentary evidence available on record. The presumption of innocence in favour of the accused remains, until and unless proven guilty, and the presumption continues at all stages of the trial and finally culminates in a fact when the case ends in acquittal. The prosecution improved the case from stage to stage, and, infact, the genesis was suppressed. Ex.D14-accident register case sheet does not indicate the names of the accused, and eventually prayed to dismiss the appeal.

#13. Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State, reiterated the contentions of learned senior counsel for the appellant.

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

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

#16. 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 compelling reasons? only and courts used to launch on a search to discover those >substantial and compelling reasons?.