Criminal Appeal No. 205 of 2007 · High Court · 2009

Judgment

(per the HON’BLE SRI JUSTICE D.S.R.VARMA) Heard the learned counsel appearing for the appellants and the learned Public Prosecutor, appearing for the respondent- State.

2. Appellants 1 and 2 are accused Nos.1 and 2,

respectively, in Sessions Case No.63 of 2005. 3. This Criminal Appeal is directed against the judgment, dated 05.12.2006, passed by the Special Sessions Judge under SCs & STs (POA) Act-cum-X Additional District and Sessions Judge, Krishna, Machilipatnam, in S.C.No.63 of 2005, convicting A-1 and A-2 of the offence punishable under Section 302 of the Indian Penal Code (for brevity “I.P.C.,”) read with Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (Act 33 of 1989) (for brevity “the Act”) and sentencing them to suffer imprisonment for life and to pay a fine of Rs.100/- each; convicting A-1 of the offence punishable under Section 324 read with Section 34 I.P.C., and sentencing him to suffer rigorous imprisonment for one year; and convicting A-2 of the offence punishable under Section 324 I.P.C., and sentencing him to suffer rigorous imprisonment for one year. 4. The prosecution case, in brief, is that, on 01.04.2004, when the villagers have performed Vasanthothsavam on the eve of Sri Ramanavami, A-1 and one P.Lakshmaiah (hereinafter referred to as “the deceased”) pushed each other and quarrelled; that they were separated by elders; that on the next day i.e., on 02.04.2004, at 10 pm., A-1 along with A-2 came to the house of the deceased armed with knife and axe, respectively; that since they did not find the deceased at the house, they broke the doors; that, on hearing the noise, the wife of the deceased, who was watching T.V. in the house of P.W-1, at that point of time, came out and the deceased followed her; that then the accused proceeded towards the deceased and attacked him; that A-2 hacked on the left leg of the deceased, resulting in severance from the body; that when the deceased fell down, A-1 cut him on the neck and chest with the knife; that when P.W-1, who was the neighbour, in whose house the deceased and the wife of the deceased were watching T.V., tried to interfere, he was also beaten by A-2 and after receiving the injuries he ran away; that, on hearing this commotion, the other villagers also gathered and the accused ran away from the place; that the deceased died on the spot; that P.W-1 was taken to the hospital, where he was treated by the Civil Assistant Surgeon-P.W-11 and Ex.P-11 is the wound certificate; that since A-2 also got admitted, as having received two incised injuries; one on the head and the other on the mouth, he was also treated by P.W-11 and Ex.P-12 is the wound certificate; that upon receiving information, Police started the process of investigation and have taken all the necessary steps, particularly preparing the observation mahazar of the scene of occurrence in the presence of P.W-7 and another etc. 5. Ex.P-4 is the Observation mahazar and Ex.P-20 is the rough sketch of the scene of offence. Inquest was conducted on the dead body of the deceased and the report was marked as Ex.P-5. P.W-8 is the Civil Assistant Surgeon, who conducted autopsy on the dead body of the deceased, on 03.04.2004. He noticed the injuries and also noted the cause of death and issued Ex.P-6-postmortem certificate. 6. P.W-14 is the Officer, who conducted investigation. He arrested A-1 on 07.04.2004 and recovered M.O-2 at his instance. The seizure mahazar was marked as Ex.P-15. The caste certificate of the deceased was also obtained. P.W-15 is the successor investigating officer to P.W-14, who effected the arrest of A-2 on 14.04.2004 and at his instance axe-M.O-1 was recovered from the bushes through mahazar-Ex.P-17. After completion of all the necessary formalities, charge sheet was filed.

7. When charges under Section 302 IPC read with Section 3 (2) (v) of the Act against A-1 and A-2 and a charge under Section 324 IPC against A-2 were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried.

8. In order to substantiate its case, the prosecution examined P.Ws.1 to 16 and got marked Exs.P-1 to P-21, besides M.Os.1 to 4, on its behalf. On behalf of defence, neither oral nor documentary evidence was adduced. 9. The trial Court, having appreciated the entire evidence, both oral and documentary, available on record, found the accused guilty of the offences, with which they are charged, and convicted and sentenced them, as stated supra. Aggrieved by the same, the accused preferred the present Criminal Appeal. 10. Sri T.Bali Reddy, learned Senior Counsel appearing for the accused, contends that the case of the prosecution is highly improbable; that all the material witnesses i.e., P.Ws.1 to 5 and 16 being relatives of the deceased are to be treated as interested witnesses and their evidence cannot be taken into consideration and that there is no specific accusation against the accused for the offence under Section 3 (2) (v) of the Act. His main thrust appears to be that A-2 caused grievous injury to the deceased and the role of A-1 is not that much severe compared to the attack made by A-2 on the deceased.

11. On the other hand, the learned Public Prosecutor, appearing for the respondent-State, contends that the trial Court had appreciated the case in all angles from a right perspective and thus, he supported the order of conviction and sentence, passed by the trial Court, in all respects. 12. The only question that arises for consideration, in this Criminal Appeal, is -- whether the trial Court had properly appreciated the evidence on record in order to arrive at the conclusion that the accused were responsible for the death of the deceased? 13. Ex.P-1-complaint is the initial document, which has been given by P.W-1 to the Police. In the said complaint, he gave a categorical account of the events that had taken place on the date of incident, as stated in his deposition.

14. Therefore, it is necessary for us to look into the evidence of P.W-1.

15. P.W-1 deposed that the incident took place on 02.04.2004, at about 10 pm., in front of his house; that on the date of incident, A-1 and A-2 came to the house of the deceased and broke the doors of his house; that, at that point of time, the deceased and P.W-4, the wife of the deceased, were present in his house watching T.V.; that after hearing the galata, P.W-4 came out of the house, first, followed by the deceased; that upon seeing the deceased, A-2 initially hacked the deceased with an axe on his left leg, resulting in severance from the body, due to which the deceased had fallen down and that, thereupon, A-1, who was armed with knife, stabbed the deceased on the neck and head, due to which he died instantaneously. He further stated that when he attempted to interfere, he also got injured at the hands of A-2 and. therefore, he ran away towards his house. to Government Hospital, Subsequently, he was shifted Nandigama, the hospital, after completion of the treatment, at about 12 mid night, his statement was recorded by the Sub-Inspector of Police in the presence of duty Doctor and the same is marked as Ex.P-1. 16. It is conspicuously noticed that during the function that took place on the previous day of the incident i.e., on the eve of Sriramanavani, coupled with Vasanthothsavam, A-1 and the deceased pushed each other, therefore, A-1 developed grudge over the deceased and that, with the help of A-2, attack on the deceased was resorted to by A-1. From the cross- examination, it appears that nothing important could be elicited to demolish the evidence of P.W-1. treatment and, at

17. However, it is brought on record that a sum of Rs.1,50,000/- was awarded to P.W-4 by the Government since her husband i.e., the deceased, belong to a Scheduled Caste Community (Madiga). What is to be noted in this case, in this regard, is that P.W-1 never stated either in Ex.P-1 or in his evidence before the trial Court that the attack was made by A-1 and A-2 against the deceased on account of their grudge against the deceased for his being a member of Madiga community as such, and it was only as a result of the deceased and the accused pushing each other in the festival, A-1 developed grudge. Therefore, it can be understood that the initial case of P.W-1, who was an eyewitness and also an injured witness, is that the attack was made on the deceased not on the ground that he was a member of scheduled caste, but, on the contrary, it was only because of the quarrel that took place between the deceased and A-1 on the previous day to the date of incident i.e., during the function of Sri Ramanavami festival.

18. P.W-2, on all material aspects, corroborated the evidence of P.W-1. But, the only addition in his deposition is that “A-1 developed a grouse over the deceased being a Madiga scheduled caste person, quarrelled with him.” Except the above, nothing further has been stated by P.W-2 in order to invoke the provisions of Section 3 (2) (v) of the Act. 19. P.W-3 narrated the events in the same manner as was spoken to by P.Ws.1 and 2. However, he stated that after breaking the doors of the house of P.W-1, the accused cried “Madiga na kodaka”. But, in the cross-examination, he admitted that he did not state to the Police that the accused abused the deceased as stated above. Therefore, insofar as the allegation that the accused abused the deceased, naming his caste, on account of his being member of Scheduled caste community, could not be established by the evidence of P.W-3. 20. P.W-4, of course, also stated that there was utterance by the accused against the deceased. But, again, he admitted in cross-examination that the same was not informed to the Police. 21. P.W-5 did not speak about these aspects, except narrating the method and manner in which the attack was made by the accused against the deceased.

22. P.W-16 also spoke in the same fashion as that of P.Ws.1 to 5 as regards the method and manner of occurrence of the incident. 23. Therefore, from the above, what has to be seen is that all the witnesses spoke with vehemence and cohesion and their the deceased, abused evidence was absolutely natural, inasmuch as, they were present at the time of commission of offence against the deceased at the hands of the accused. Except their version that the accused, while attacking deceased by his caste, all the above witnesses gave the testimony with absolute uniformity and we do not have any doubt about their presence because in the earliest statement made by P.W-1, it was stated that P.W-4, the wife of the deceased, and himself were watching T.V along with the deceased and after hearing the commotion, several other people came. The entire incident, as narrated by the witnesses, referred to above, appears to be very natural and trustworthy. No material, capable of shattering the consistency of the witnesses or making their testimony as untrustworthy, is available on record.

24. The next important aspect to be noticed is the evidence of P.W-12, who is a mediator, to the extent of the confession of the accused under Section 27 of the Indian Evidence Act. He supported the case of the prosecution, in all respects. Therefore, this is an additional substantive piece of evidence to the case of the prosecution. 25. Coming to the medical evidence, the Doctor, P.W-11, examined P.W-1 and A-2 and issued wound certificates, under Exs.P-11 and P-12, respectively, which shows the presence of P.W-1 and A-2 at the scene of offence. P.W-8, another Doctor, who conducted the postmortem on the dead body of the deceased, narrated the injuries as under:

1. An incised injury extending from the trages the left ear from the middle of the mandible to the sternal notch about 30 x 10 cm. Bone muscle and bone depth. Trachea exposed-Tracha exposes- Internal cartid cut across. Clear cut edge.

2. An incised injury of 10 x 7 c m on the left side of the chest, bone depth, 6th and 7th cut across, clear cut edges.

3. An incised injury of 5 x 2 cm on middle and dorsal aspect of right fore-arm, bone depth, shape edges. 4. Left lower leg was cut cross in the middle detached from the body.”

26. P.W-8 further deposed that injury No.1 could be possible if the deceased had fallen on the ground and the assailant hacked him with a knife or sickle.

27. In view of the above facts, the evidence of other witnesses, which is not very relevant, need not be referred to, inasmuch as, their evidence is only relating to the other formalities and does not throw much light upon the case. 28. Therefore, in view of the above evidence on record, what is clear is that two allegations were made against the accused; firstly, they committed the offence under Section 302 IPC and secondly, they committed the offence under Section 3 (2) (v) of the Act, which are distinct with each other.

29. In other words, the offence under the Act is not an offence under IPC but is an offence under a separate and distinct statute. In such a case, we feel that the offence under IPC and the Act ought to have been looked into and dealt with separately by the trial Court. But, the trial Court had framed the charge under Section 302 IPC read with Section 3 (2) (v) of the Act and convicted the accused for both the offences jointly.

30. In this connection, we are of the view that the trial Court was in error in recording a finding in the above manner and on the other hand, separate findings ought to have been recorded and separate order of acquittal or conviction, as the case may be, ought to have been recorded for the offence under IPC and the offence under the Act. 31. For the reasons recorded by us, as above, we are of the view that, under the facts and circumstances, no offence under Section 3 (2) (v) of the Act has been established by the prosecution against the accused.

32. However, the prosecution has successfully established the case against the accused for the offences punishable under Section 302 read with Section 34 IPC and Section 324 read with Section 34 I.P.C.

33. Accordingly, the conviction and sentence for the offences punishable under Sections 302 and 324 IPC against A-1 and A-2 are confirmed.

34. It is clarified that there cannot be any conviction for the accused for the offence under Section 3 (2) (v) of the Act. 35. In the result, the Criminal Appeal is dismissed subject to the above modifications. _____________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE R.KANTHA RAO Dated: 09.11.2009