THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1762 of 2007 15-10-2014 BETWEEN:
Boya Pisuru Madanna And others.
…..Appellants/Accused AND The State of A.P., rep. by Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh …..Respondent THIS COURT MADE THE FOLLOWING JUDGMENT:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1762 of 2007 JUDGMENT:
The Criminal Appeal is preferred by the appellants/A.1 to A.7 challenging the Judgment, dated 06.12.2007, in Sessions Case No.151 of 2007 passed by the Court of the II Additional Sessions Judge, Kurnool, whereby the learned Judge found the appellants/A.1 to A.3 guilty for the offences under Sections 148, 452, 307, 304-II, 324 and 324 read with Section 149 IPC, and convicted and sentenced as follows.
(i) A.1 to A.7 are convicted and sentenced to undergo rigorous imprisonment for a period of one year each for the offence under Section 148 IPC.
(ii) A.1 to A.7 are convicted and sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of Rs.300/- (Rupees three hundred only) each, in default, to undergo simple imprisonment for a period of six months each, for the offence under Section 452 IPC .
(iii) A.2 is convicted for the offence under Section 307 IPC and A.1 and A.3 to A.7 are convicted for the offence under Section 307 IPC read with Section 149 IPC; and they are sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.500/- (Rupees five hundred only) each, in default, to undergo simple imprisonment for a period of six months each.
(iv) A.1 to A.7 are acquitted of the offence under Section 302 IPC, but they are convicted for the offence under Section 304-II IPC and are sentenced to undergo rigorous imprisonment for a period of seven years each.
(v) A.6 and A.7 are convicted and sentenced to undergo rigorous imprisonment for a period of one year each for the offence under Section 324 IPC, for voluntarily causing hurt to P.W.2.
(vi) A.3 and A.4 are convicted and sentenced to undergo rigorous imprisonment for a period of one year each for the offence under Section 324 IPC, for voluntarily causing hurt to P.W.3.
(vii) A.3 and A.4 are convicted and sentenced to undergo rigorous imprisonment for a period of one year each for the offence under Section 324 IPC, for voluntarily causing hurt to P.W.4.
(viii) The above sentences awarded to A.1 to A.7 shall run concurrently.
The case of the prosecution, as recorded by the Court below, is as follows:-
The Inspector of Police, Yemmiganur Circle laid the charge sheet against seven persons under Sections 147, 148, 450, 451, 452. 324, 307, 302 read with 149 IPC alleging that, Boya Kanakaveedu Madanna (L.W.1) was maintaining a group of coolies consisting of Boya Bajari (L.W.2), Boya Mareppa (L.W.3), Boya Veeresh (L.W.4), Boya Gorantlamma (L.W.5), Boya Mangamma (L.W.6), Boya Chinna Gorantla (L.W.7) and others for plucking groundnut plants in the fields of the Ryots of the village on contract basis. Boya Pisuru Madanna (A.1) was also in his group. On 04.10.2005, this group of coolies does the above said work in the fields of Yelamandappa and Goulu Naganna, along with A.1. On the next day, i.e., on 05.10.2005, when they were doing the similar work in the field of Kambari Madhavaiah, A.1 had not joined and went and does similar work in the group led by Raghavendra (A.4). However, when the wages were being paid on 05.10.2005 near the house of one Pedda Ramanna for the works done on 04.10.2005 and the works of that day, A.1 also came there to receive his wages. When the wages were being distributed, at 7.00 p.m., Boya Bakka Madanna (L.W.10) a Ryot came there and offered the work of plucking Groundnut plants in his field to the group of Madanna (L.W.1) and Madanna (L.W.1) agreed. Then A.1 interfered and said his group lead by A.4 would do that work. On which a verbal quarrel ensued between A.1 Madanna and L.W.1 Madanna. A.1 threatened if any one dares to go and does the said work in the field of Boya Bakka Madanna (L.W.10), they would be hacked to death, came upon to assault L.W.1, Madanna. Seeing which, Boya Bajari, Boya Mareppa and Boya Gorantlamma (L.W.2, L.W.3 and L.W.5) and other persons interfered, and took away L.W.1, Madanna and left him at his house. On the same day at 7.30 p.m., A.1, Madanna accompanied by A.2 to A.7 after forming themselves into an unlawful assembly armed with deadly weapons like cart-pegs and country sticks, with an intention to kill L.W.1, Madanna, as he and his group has become an obstruction for their group works, came to the hut of L.W.1 Madanna, who reside there with his parents Hanumanthu (the deceased) Thimmulamma (L.W.8) trespassed into the hut with the criminal intention of killing L.W.1 Madanna, at which time his father Hanumanthu was with him. After trespassing into that hut, questioning L.W.1 Madanna that, he is obstructing their group coolie works,
A.1 Pisuru Madanna instigated the other accused to kill him. On which,
A.1 Sreeramulu assaulted L.W.1 Madanna with a cart-peg on his head and caused a bleeding injury. A.4 beat him with a cart-peg on the left side of the waist and right shoulder. At that juncture, Madanna’s (L.W.1) father Hanumanthu interfered to save his son questioning the accused. On which, all the accused got angry and all of them surrounded and indiscriminately beat him with cart-pegs and country sticks poking his body with those sticks, and on his testicles.
On such assault, Hanumanthu fell. Madanna (L.W.1) raised cries. Hearing which, Boya Bajari (L.W.2), Boya Gorantlamma (L.W.5), Boya Mangamma (L.W.6), Boya Veeresh (L.W.4), Boya Chinna Gorantla (L.W.7) rushed and came into their hut. On seeing them, accused ran away from the hut. While leaving the hut when questioned by the said witnesses, as to why they assaulted P.W.1 and his father A.6 and A.7 beat Boya Bajari (L.W.2) with sticks on his left shoulder and caused bleeding injuries. Whereas, A.3 and A.4 beat Boya Mareppa (L.W.3) with sticks on his right leg and caused bleeding injuries. When observed Hanumanthu was not responding. Immediately accompanied by his son Madanna (L.W.1), the above said witnesses took Hanumanthu in an auto rickshaw to Government Hospital, Yemmiganur. There the Doctor examined him and declared brought dead. On receipt of the death intimation (Ex.P.9) from Doctor, the S.I. of Police (L.W.20) came to the hospital, saw the dead body, and recorded the statement of occurrence (Ex.P.1) from Madanna (L.W.1), on the basis of which, he registered an F.I.R (Ex.P.18) against the accused. After completion of the investigation, a charge sheet was filed against A.1 to A.7 for offences under Sections 147, 148, 450, 451, 452, 324, 307, 302 read with Section 149 IPC.
To substantiate the case of the prosecution, P.Ws.1 to 15 were examined and Exs.P.1 to P.25 and M.Os.1 to 13 were marked on behalf of the prosecution. No oral evidence was adduced on behalf of the accused, but marked Exs.D.1 and D.2.
The learned trial Judge after evaluating the evidence, more particularly the evidence of injured persons, P.Ws.1 to 4, and also the evidence of the Doctor, P.W.10, who examined the injured persons, and also the evidence of the Doctor, P.W.9, who conducted postmortem on the dead body of the deceased, acquitted the appellants/accused for the offence under Section 302 IPC, but convicted the appellants/accused for the offence under Section 304-II IPC., as the appellants/accused do not have any intention to cause death of the deceased, but they have knowledge that their act would cause death of the deceased.
Insofar as the injuries on P.Ws.1 to 4 are concerned, the learned Judge convicted A.2 for the offence under Section 307 IPC and also convicted A.1, A.3 to A.7 for the offence under Section 307 IPC read with Section 149 IPC, and also convicted all the accused for the offence under Section 324 IPC, and also Section 324 IPC read with Section 149 IPC.
Aggrieved by the Judgment of the conviction and sentence, the present appeal is preferred by the appellants/A.1 to A.7.
Heard and perused the material available on record.
Whether the prosecution has proved the guilt of the appellants/A.1 to A.7 beyond all reasonable doubt?
It is the case of P.Ws.1 to 4 that they saw the accused attacking the deceased indiscriminately with weapons like cart-pegs and sticks. In this regard, P.W.1, in his chief-examination, deposed as follows.
While I was at my hut, with my father at about 7.30 p.m., all the accused armed with cart-pegs and country sticks came upon my house and entered into my home. At that place, A.1 instigated the other accused to assault us stating that we are obstructing to do works. Then Kistappa’s son Sreeramulu (A.2) beat me with a cart peg on my head and Boya Raghavendra (A.4) with country stick beat me on the left side of my waist and on my right hand shoulder. When I was being assaulted so, my father crying that I am being killed interfered to rescue me then the accused surrounded him. All the accused indiscriminately assaulted him with the cart pegs and country sticks by poking with those sticks and particularly assaulting him on is testicles. While my father was being assaulted, I raised hues and cries, hearing which bajhari-L.W.2, Veeresh-L.W.4, Gorantlamma-LW.5, Mangamma-L.W.6, Chinna Gorantla-LW.7 rushed to our hut. At that time, the accused were still assaulting my father and the said witnesses who rushed to our hut and questioned them while the accused were coming out of the hut and Bajari questioned them why they were assaulting my father. Anjinaiah and Bajji (A.6) and A.7 assaulted him with a cart peg and country stick. (A.3) Nagendra and (A.4) Raghavendra assaulted L.W.3 Mareppa. After that the accused left that place. My father was not speaking and lying on the ground. Then Gorantlamma (L.W.5) and Gorantla (L.W.6) brought an auto rickshaw and took me and my father and other injured to the hospital at Yemmiganur. The Doctors examined my father and declared him dead.
The evidence of P.Ws.2 and 3 are also concerned, they deposed regarding the overt-acts of all the accused with regard to injuries caused by the accused on the deceased and also the injuries suffered by them. According to P.W.2, A.6 and A.7 caused injuries to P.W.2, while it is the case of P.W.3 that A.3 and A.4 caused injuries on him. P.W.4, who deposed about the presence of all the accused and also about the injuries sustained, but he could not able to identify the persons, who caused the injuries.
On a careful perusal of the entire evidence, more particularly the evidence of P.Ws.1 to 4, this Court is of the view that the manner in which the deceased sustained injuries in the hands of the appellants herein/A.1 to A.7 is highly unbelievable and the same is also not tallied with the evidence of the Doctor, P.W.9, who conducted post mortem over the deceased. P.W.9 clearly deposed that there are external injuries on the deadbody of the deceased, even the injuries like abrasions and contusions. He further deposed that he has not found any internal injuries in the stomach parts. According to the Doctor, P.W.9, the death is due to clot of blood in the brain of the deceased. He has categorically stated that there is no fracture or injury to the skull bones of the deceased concerned. Insofar as the internal clot found during the post mortem examination over the body of the deceased is concerned, the Doctor has given an opinion that there is no corresponding external injury on the deceased.
In view of the above discussion, the evidence of P.Ws.1 to 4 and the evidence of P.W.9, the Doctor who conducted post mortem examination on the deadbody of the deceased, totally contradict the projected case of the prosecution that all the accused indiscriminately caused the injuries over the deceased. In the absence of any external injury, the evidence of P.Ws.1 to 4 that all the accused assaulting the deceased indiscriminately is highly unbelievable in view of the evidence of the Doctor, P.W.9. Hence, this Court is of the view that when there is nothing on record to connect the death of the deceased with any of the injuries as allegedly sustained by the deceased in the hands of the appellants/A.1 to A.7, it is highly unsafe to convict the appellants/A.1 to A.7 for the offence under Section 304 Part II IPC. Hence, the conviction and sentence imposed by the Court below against the appellants/A.1 to A.7 for the offence under Section 304 Part II IPC, is liable to be set aside and is accordingly set aside.
Insofar as the injuries sustained by P.W.2 in the hands of A.6 and A.7 and the injuries sustained by P.Ws.3 and 4 in the hands of A.3 and A.4 are concerned, it is the case of P.Ws.2 and 3 that all the accused indiscriminately assaulted them with cart-pegs and country sticks. Whereas, P.W.4 deposed that all the accused were present there and assaulted him, but he could not identify them who assaulted him.
In this connection, it is necessary to extract the evidence of the Doctor, P.W.10, who examined P.Ws.1 to 4, with regard to the alleged injuries by P.Ws.1 to 4, and reads as under.
P.W.1
1. Lacerated injury of 6 x ½ cm bone depth seen vertically at occipital bone.
2. Lacerated injury of 6 x ½ cm bone depth horizontally seen at above to the first injury.
P.W.2
1. Pain and tenderness present at left shoulder joint.
2. Lacerated injury of 3 x ½ cm skin deep obliquely situated at left upper arm.
3. Red abrasion of 2 x ½ cm superficial deep seen at left knee joint.
4. Red abrasion of 2 x ½ cm superficial deep seen at left knee joint.
5. Lacerated injury of 3 x ½ cm skin deep seen at anterior aspect of the left leg.
P.W.3
1. Pain and tenderness elicited at right thigh.
2. Pain and tenderness elicited at left part of the chest.
3. Pain and tenderness elicited at left wrist joint.
P.W.4
1. Lacerated injury of 3 x ½ cm superficial deep seen at right knee joint.
The Doctor, P.W.10, who treated P.W.1 to 4 for their injuries, opined that the injuries are simple in nature. It is also in the evidence of the injured that A.6 and A.7 caused injuries on P.W.2 and that A.3 and A.4 caused injuries on P.W.3, the conviction against A.6 and A.7 and also A.3 and A.4 is hereby confirmed. However, in view of the submission of the learned counsel for the appellants that all the accused are eking out their livelihood by coolie work, and they are the only bread winners in respective families, this Court is inclined to take a lenient view while imposing the sentence of imprisonment. Hence, the sentence of imprisonment against A.6 and A.7 and also A.3 and A.4 for the offence under Section 324 IPC is modified and reduced to the period which A.6, A.7, A.3 and A.4 have already undergone.
Insofar as the conviction and sentence imposed by the Court below against
A.2 for the offence under Section 307 IPC and against A.1, A.3 to A.7 for the offence under Section 307 IPC read with Section 149 IPC is concerned, this Court is of the view that if it is the intention of the accused to cause death of the injured concerned, they would have caused the injuries on the vital parts of the injured. Further, when there was no interference by any of the persons, they would have caused the death of the injured, if it was the intention to cause death of the injured. It is also to be observed that nothing prevented them from causing the death of the injured. Even according to the evidence of the injured concerned, after causing the injuries on the body of the injured persons, the accused left the place. As per the evidence of the Doctor, P.W.10, the injuries are simple in nature. Hence, this Court is of the view that in view of the evidence of P.Ws.1 to 4 coupled with the evidence of the Doctor, P.W.10, it cannot be said that the accused has committed any offence under Section 307 IPC and also Section 307 IPC read with Section 149 IPC. Hence, the conviction and sentence imposed against A.2 for the offence under Section 307 IPC and the conviction and sentence imposed against A.1, A.3 to A.7 for the offence under Section 307 IPC read with Section 149 IPC is liable to be set aside and is accordingly set aside.
Insofar as the conviction and sentence imposed by the Court below against the appellants/A.1 to A.7 for the offence under Section 148 IPC is concerned, this Court is of the view that the presence of the appellants/accused with deadly weapons is highly doubtful. Further, in view of the finding of this Court that the appellants/A.1 to A.7 are acquitted of the offences under Section 304 Part II IPC, Section 307 IPC and also Section 307 IPC read with Section 149 IPC, this Court is not inclined to invoke the provisions of Section 148 IPC. Hence, the conviction and sentence imposed by the Court below against the appellants/A.1 to A.7 for the offence under Section 148 IPC is liable to be set aside and is accordingly set aside.
Insofar as the conviction and sentence imposed by the Court below against the appellants/A.1 to A.7 for the offence under Section 452 IPC is concerned, the evidence of P.Ws.1 to 4 clearly deposed the presence of all the accused in the house of P.W.1 and as such, the conviction for the offence under Section 452 IPC is hereby confirmed. However, in view of the submission of the learned counsel for the appellants that all the accused are eking out their livelihood by coolie work, and they are the only bread winners in respective families, this Court is inclined to take a lenient view while imposing the sentence of imprisonment. Hence, the sentence of imprisonment imposed against the appellants/A.1 to A.7 for the offence under Section 452 IPC is hereby modified and reduced to the period which the appellants/A.1 to A.7 have already undergone.
In the result, the Criminal Appeal is partly allowed in the following manner.
(i) The conviction and sentence imposed against the appellants/A.1 to A.7 for the offence under Section 304 Part II IPC is set aside;
(ii) The conviction and sentence imposed against A.2 for the offence under Section 307 IPC, and against A.1, A.3 to A.7 for the offence under Section 307 IPC read with Section 149 IPC is also hereby set aside;
(iii) The conviction and sentence imposed against the appellants/A.1 to A.7 for the offence under Section 148 IPC is set aside;
(iv) Insofar as the offences under Sections 304 Part II IPC, 307 IPC, 307 IPC read with Section 149 IPC and Section 148 IPC are concerned, the bail bonds shall stand cancelled and the sureties stand discharged. The fine amount, if any, paid by the appellants/A.1 to A.7 for the said offences shall be refunded to them.
(v) The conviction against the appellants/A.1 to A.7 for the offence under Section 452 IPC is hereby confirmed. However, the sentence of imprisonment imposed against the appellants/A.1 to A.7 for the offence under Section 452 IPC is hereby modified and reduced to the period which the appellants/A.1 to A.7 have already undergone. The sentence of fine and default condition, imposed by the Court below, for the offence under Section 452 IPC is not interfered with; and
(vi) The conviction against A.3, A.4, A.6 and A.7 for the offence under Section 324 IPC is hereby confirmed. However, the sentence of imprisonment imposed against A.3, A.4, A.6 and A.7 for the offence under Section 324 IPC is hereby modified and reduced to the period which A.3, A.4, A.6 and A.7 have already undergone. The sentence of fine and default condition, imposed by the Court below, for the offence under Section 324 IPC, is not interfered with.
Miscellaneous petitions, if any pending in this appeal, shall stand closed.
JUSTICE RAJA ELANGO 15.10.2014 pln