Anisetti Veerabhadra Rao & Anr vs State Of A.P

Anisetti Veerabhadra Rao & Anr. ..Appellants

Vs.

State of A.P. ..Respondent

O R D E R

1. This appeal arises out of the following facts :-

Four persons, A-1-Anisetti Veerabhadra Rao, A-2-Anisetti Venkata

Ramana, A-3-Anisetti Ramulu and A-4-Anisetti Sesharatnam were

put on trial for offences punishable under Section 448 read with

Section 34, 302 and 302 read with Section 114 of the Indian

Penal Code. As per the prosecution story the four accused were

closely related to each other; A-1 and A-2 being the sons of A-3

and A-4. The houses of the accused and that of Yanamandra Subba

Rao since deceased were separated by a path. A-3 had hired the

tractor belonging to the deceased about 5 or 6 years prior to

the date of occurrence and he was to pay him a sum of Rs.3000/-

towards the hire charges but as this amount had not been paid

over a period of time, PW-10-Kona Bapiraju intervened in the

dispute and pursuant to a settlement, A-3 had paid the hire

charges. The accused were however slighted and aggrieved as

they felt that a personal dispute had been made public by the

deceased and as a consequence of this ill-will, A-1 and A-2 had

often threatened him with dire consequences. At about 6:00 p.m.

on the 12th August, 2001 the deceased was sitting in front of his

house when A-1 and A-2 attacked him. He attempted to ward off

the blows but his right hand got severed in that process. A-1

and A-2 thereafter caused several other injuries to the

deceased. The mother of the deceased, PW-1-Surya Prakasamma,

rushed to the site, on hearing the noise. She noticed that A-3

and A-4 too were standing outside the house of the deceased.

The incident was also seen by PW-3-Kada Subrahmanyam, Subba

Rao's servant . PW-3 then rushed to the house of PW-5-Vithanala

Ganiraju who came to the scene and the deceased, who was then

alive, told him that he had been attacked by A-1 and A-2. PW's

1, 3 and 5 thereafter shifted him to the Government Hospital

Kakinada in a car owned by PW-11-Madhavarapu Ramachandrarao @

Rajababu and on the way PW-2-Yanamandra Venkateswara Sidhanthi,

Yanamandra Subba Rao's brother also joined them. On an enquiry

by PW-2, Subba Rao told him that he had been injured by A-1 and

A-2. After the injured had reached the hospital, PW-16-Dr. K.

Appalacharyulu, Civil Assistant Surgeon of the Government

General Hospital, Kakinada, sent intimation to the police post

on which PW-19-K.V. Raghavulu, Head Constable reached the

casualty ward and recorded Subba Rao's statement Exhibit-P-18.

On the basis of the information received by the police, a case

under Sections 448 and 307 read with section 34 of the Indian

Penal Code was registered. PW-17-Dr. B. Rangarao of the casualty

department in the hospital also requisitioned the services of a

Magistrate to record the statement of Subba Rao, on which PW-14-

K. Chandrasekhara Rao, Special Mobile Magistrate, reached the

hospital and recorded the dying declaration Exhibit P-12 in

which he stated that the first and third sons of A-3 had

attacked him. Subba Rao was thereafter referred to the Care

hospital on the 13th August, 2001 where he succumbed to his

injuries the next day at 10:00 a.m. The offence under Section

307 read with Section 34 of the Indian Penal Code was altered to

one under Section 302 of the Indian Penal Code. The accused

were also arrested during the course of the investigation and

several weapons were recovered at their instance.

2. The trial court relying on the eye-witness account of PWs-

1, 3 and 4 and on the two dying declarations, one recorded by

the police officer and the other by the Magistrate, convicted A-

1 and A-2 for offences punishable under Sections 448 and 302 of

the Indian Penal Code and sentenced them to undergo imprisonment

for one year and life respectively. A-3 and A-4 were, however,

acquitted.

3. Aggrieved by the judgment of the trial court, the

appellants herein filed an appeal before the High Court. During

the course of arguments on the 27th January, 2006 the High Court

found that the statements of the appellants under Section 313 of

the Criminal Procedure Code had not been properly recorded as

all

the incriminating circumstances had not been put together,

particularly the dying declaration Exhibit P-12. The matter was

thereafter remitted to the trial court for framing fresh

questions with regard to the dying declarations Exhibit P-12 and

P-18.

The trial court recorded the statements of the appellants on the

17th May, 2006 by putting question Nos.88 to 94 to them with

reference to the two dying declarations. The appellants stated

that they were the fourth and second sons of their parents and

they also filed several documents including birth certificates

with respect to their identities. The trial court, however,

chose not to rely on these documents as they had been produced

at a belated stage and also observed that this evidence was not

trustworthy. The appellants were again sentenced to undergo six

months rigorous imprisonment under Section 448 and to life

imprisonment under section 302 of the Indian Penal Code. An

appeal was thereafter filed before the High Court impugning the

judgment on remand made by the Sessions Court. This appeal too

has been dismissed, leading to the present appeal before us.

4. Before us today, the learned counsel for the appellants has

reiterated the stand of the appellants taken in the High Court

that in the dying declaration Exhibit P-12, the deceased had

made a statement that the appellants were the first and third

sons of A-3 but in the light of the evidence on record it was

clear that they were infact the second and fourth sons of A-3,

and as such their very identification was in doubt. It has

further been highlighted that as the incident had happened

during the hours of darkness it could not have been possible for

PW-1 and PW-3 to have identified the appellants. It has also

been submitted that the two dying declarations were discrepant

in material particulars and that they too could not be relied

upon.

5. The learned counsel for the State has, however, supported

the judgment of the trial court and has contended that there was

absolutely no reason whatsoever to discard the evidence of PW-1

and PW-3 and as the incident had happened at about 6:30 p.m. and

as darkness had not fully set in, there could be no mistake as

to the identity of the as the rival parties as they were

neighbours. It has also been submitted that the dying

declarations had been recorded by entirely independent observers

and that there was no material difference between the two. It

has further been pleaded that the medical evidence supported the

ocular version.

6. We have heard learned counsel for the parties and

considered the arguments advanced by them. We find that there

is no material difference between the two dying declarations

Exhibits P-12 and P-18. In Exhibit P-18, which is earlier in

point of time and which had been recorded at about 9:15 p.m. on

the 12th August, 2001 in the presence of the medical officer who

had

attested the same, the deceased had specifically named the two

appellants as his assailants. The dying declaration Exhibit P-

12 was recorded about an hour later in which the deceased

referred to the accused as the eldest and the third sons, but

otherwise he virtually reiterated what he had said in the dying

declaration Exhibit P-18. As a consequence of this somewhat

uncertain identification, the High Court, had at the first

instance, remanded the matter to the Sessions Court to render an

opinion afresh. The Sessions Court, on a reconsideration of the

evidence now produced on behalf of the appellants, held that the

plea that the appellants were the first and third sons of their

parents could not be accepted as this defence was an after

thought and more particularly as the appellants had been

specifically named as the assailants in the dying declaration

Exhibit P-18.

7. In any case, we have absolutely no doubt that the

prosecution story is even otherwise proved by the evidence of

PW-1, the mother of the deceased and PW-3, a servant of the

deceased. The medical evidence clearly supports the eye-witness

account. The deceased had 13 injuries on his person most of

them incised wounds which could have been caused with a cutting

weapon. It is also evident that PWs 1 & 3 presence at the spot

was natural as the incident had happened in the house of the

deceased at about 6:30 p.m. For this reason also there could be

no confusion about the identity of the appellants.

8. We are, therefore, of the opinion that there is no merit in

the appeal. Dismissed.

...................................J. (HARJIT SINGH BEDI)

...................................J. (CHANDRAMAULI KR. PRASAD) JANUARY 25, 2011, NEW DELHI.