Chakali Maddilety & Ors vs State Of A.P

5. Shri R. Sundaravaradan, learned senior counsel

appearing for the appellants, has submitted that in view of the

evidence of alleged eye-witnesses, namely, Harijana

Ramakrishna (PW.1) and Harijana Ayyamma (PW.2), two

accused namely, Chakali Krishna (A2) and Chakali

Sreenivasulu (A4) had been acquitted by the Trial Court.

Harijana Sekhar (PW.3) and Muniswamy (PW.4) and A. Samuel

(PW.5) had been disbelieved by the Trial Court. Molakapogu

Daveedu (PW.6) and Molakapogu Harijana Pakkiranna (PW.7)

turned hostile and did not support the prosecution. In fact,

A2 and A4 had caused fatal injury No.1 on the head. In such

4 a fact-situation there was no occasion for the courts below to

convict the appellants. More so, it is nobody's case that all the

accused persons came with deadly weapons. Therefore, the

question of application of the provisions of Section 148 IPC

could not arise. The entire incident occurred in two parts.

First, the deceased was hit near the house of Anjaneya Goud

and a second time, when as alleged, the appellants caused

serious injuries after taking the deceased in injured condition

near the mosque. In case there is no evidence that all the

appellants were armed with weapons at the time of the first

part of the incident, in absence of any evidence that they had

been supplied the arms by somebody else in between, question

of causing serious injuries in the second part stands falsified.

Had the incident been as alleged by the prosecution, at least,

Harijana Ramakrishna (PW.1), son of the deceased, as he was

24 years of age, could have intervened and made attempt to

protect his father. The incident occurred in a residential area,

no independent witness was examined. All these factors have

not been considered by the courts below in correct perspective.

Therefore, the appeal deserves to be allowed.

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6. On the contrary, Shri Anoop G. Choudhari, learned

senior counsel appearing for the State, has submitted that two

courts have recorded concurrent findings of fact. The Trial

Court had an opportunity to examine the demeanour of the

witnesses and assess their credibility. The Trial Court, after

assessing the evidence on record, reached the conclusion that

A2 and A4 had falsely been enroped in the crime. Therefore,

they had been acquitted. However, on the basis of the

depositions of Harijana Ramakrishna (PW.1) and Harijana

Ayyamma (PW.2) the appellants have been convicted and the

High Court has affirmed their conviction. The findings of fact

as recorded by the courts below cannot be held to be so

perverse as to warrant interference by this Court. Had

Harijana Ramakrishna (PW.1), the son of the deceased tried to

intervene and protect the deceased, there was a possibility of

receiving grievous injuries or he could have also faced death

at the hands of the appellants. The FIR has been lodged

promptly. Appellants were known to the complainant. They

had been named in the FIR. In such a fact-situation, appeal

lacks merit and is liable to be dismissed.

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7. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

8. Admittedly, FIR was lodged promptly within a period of 2

= hours, though, the distance between the place of occurrence

and the police station was about 15 kms. All the appellants

had been named therein. As per the post mortem report,

following 13 ante-mortem injuries were found on the dead

body of the deceased:-

"1. Lacerated wound on right side head, back part of parietal area. Obliquely placed 7 x 1 = cms x scalp layer deep with a fracture of left parietal bone 13 cms in width, contusion of brain with fracture of base of skull in mid cranial fossa 12 cms in length.

2. Incised wound on right eye-brow 4 x 1 cms x bone deep.

3. Stab wound on front of right side chest right nipple. Oblique, 4 = x 1 = cms x chest cavity deep cutting the 4th rib.

4. Stab wound on left side chest below left nipple obliquely 4 = x 1 = cms x chest cavity depth cutting ribs 4th and 5th.

7 5. Stab wound on front of right upper abdomen outer part 4 x 1 = cms x abdomen deep, cutting the intestines.

6. Stab wound on front of left side abdomen, near the midline, oblique, 4 = x 1 = cms x abdomen cavity deep, cutting the liver.

7. Incised wound on back of left upper are near the shoulder 4 x 1 = cms x 3 cms muscle deep.

8. Abrasion with contusion on the back of left elbow and fore-arm 6 x 4 cms red in colour.

9. Incised would on outer part of left leg near the knee 4 x 1 = cms x bone deep.

10. A stab wound on upper part of right buttock 4 = x 1 = x 5 cms muscle deep.

11. A stab wound on the back of chest upper part, near the spine upper thoracic 4 = x 1 = cms x vertebra deep.

12. Stab injuries 4 in number on the back of middle of chest 2 on right side of thoracic spine, 2 on left side measuring 4 x 1= cms, 4 = x 1 cms, 4 = x 1 = cms, 4 = x 1 cms chest cavity deep.

13. Stab wound on back left side chest lower and outer part obliquely 4 = x 1 = cms x chest cavity the ribs and injured the left side lung tissues.

8 As per the medical evidence the cause of death was shock

and hemorrhage due to multiple injuries.

9. The Trial Court, after appreciating the evidence on

record, came to the conclusion that the FIR had been lodged

most promptly and all the appellants were named therein. An

earlier incident had occurred on 4.11.1998 between the

deceased and A1 & A5, thus the deceased was inimical to

them. Harijana Sekhar (PW.3), Muniswamy (PW.4) and

A.Samuel (PW.5) came to the spot after hearing the hue and

cry made by Harijana Ramakrishna (PW.1) and Harijana

Ayyamma (PW.2), thus they could not be eye-witnesses of the

actual incident. Therefore, the Trial Court brushed aside their

depositions. Molakapogu Daveedu (PW.6) and Molakapogu

Harijana Pakkiranna (PW.7), who were the witnesses of

inquest on the dead body, were declared hostile and, therefore,

they did not support the case of the prosecution. The Trial

Court came to the conclusion that in spite of the fact that

Harijana Ramakrishna (PW.1) and Harijana Ayyamma (PW.2)

9 were family members of the deceased and a dispute had arisen

on 4.11.1998, few days before the incident, between the

deceased and Chakali Maddilety (A1) and Chakali

Lakshmanna (A5), though there may be a possibility to enrope

some persons falsely, the question of leaving the real culprits

for causing the death of the deceased out of the FIR could not

arise. All the persons involved in the case were from the same

village. There was no contradiction in the version in the FIR

and the statement under Section 161 of Code of Criminal

Procedure, 1973, of PW.1 and PW.2 and the case also stood

corroborated by the medical evidence. Therefore, the Trial

Court acquitted Chakali Krishna (A2) and Chakali

Sreenivasulu (A4) in view of the fact that there was no

evidence of the deceased being hit by stone and stick. The

depositions of close relatives cannot be discarded merely

because they are relatives, but their evidence has to be

considered with due care and caution. In a case like this,

independent witnesses may not come forward to depose, as

out of fear, people prefer to run away from the place of

occurrence and avoid witnessing the crime, but that does not

1 mean that the case can be discarded only on the ground of

non-examination of independent witnesses of the locality.

10. The Trial Court considered the application of Section 148

IPC elaborately and held:

"With regard to participation of A1, A3, A5 to A7, PW1, PW2 who are the eye witness who actually witnessed the incident specifically stated that A1 and A3, A5 to A7, formed into an unlawful assembly to commit rioting and A1 stabbed Ayyanna on his back with a dagger at first place of occurrence itself. The medical evidence of PW10 who conducted P.M. examination over the dead body of deceased also shows that he found an incised wound on the back of left upper arm near the shoulder 4 x 1 = cms muscle deep in size under injury No. 1. So, the injury No. 7 mentioned in Ex. P14 P.M.report is the injury said to have caused on the back of deceased by A1 with dagger. Therefore, the medical evidence is totally corroborating the ocular testimony PW1, PW2 with regard to stab injury caused on the back of deceased by A1 in front of the house of Ediga Anjhaneyulu Goud. In Ex.P1 complaint also, PW1/complainant specifically mentioned, that A1 stabbed the deceased on back with a dagger pushing him aside and his mother (PW2) aside. Therefore, basing on the consistent evidence of PW1, PW2 coupled with medical evidence of PW10 and Ex. P14 it

1 can safely be held that A1, A3, A5 to A7 formed into an unlawful assembly to commit rioting against Ayyanna, in prosecution of common object, A1 stabbed Ayyanna (deceased) thereby A1, A3, A5 to A7 committed the offence punishable under Sec. 148 of IPC. Accordingly, they are liable to be convicted.

Regarding 2nd incident of murderous assault against Ayyanna (deceased) PW1, PW2 specifically deposed that all the accused stabbed Ayyanna (deceased) indiscriminately. In such case, it is very difficult to attribute any specific overt acts against any of the accused. The overt acts theory cannot be applied, when more number of persons stabbed a single individual indiscriminately. The medical evidence under Ex.P14 and oral evidence of PW10 also lending support to the ocular testimony of PW1, PW2. The P.M. Doctor PW10 found as many as 13 injuries, out of the said injuries, injury No. 2 to 7 and 9 to 13 are stab and incised wound with similar measurements. Therefore, all the above injuries 2 to 7 and 9 to 13 could have been caused with same type of weapon and said fact was spoken by PW10 in his evidence."

Thus, the case to the extent that the appellants stabbed the

deceased with dagger and knife stood proved.

11. The High Court considered the issue of application of

Section 148 IPC and observed:

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"The first issue that arises for consideration is whether the offence under Section 148 IPC is made out against the accused. The evidence of PWs. 1 and 2 clearly establishes that the accused, who were in inimical terms with the deceased and PW.1, were all at the scene on the night of the incident and they have virtually encircled them duly armed with daggers and stick. It is also the evidence of PWs 1 and 2 in categorical terms that the accused even gave blow with the daggers on the back of the deceased and thereafter they lifted the deceased bodily and took him near the mosque by which time on account of the cries of PWs. 1 and 2, PWs. 3 to 5 came at the scene. Under those circumstances the finding of the learned Ist Additional District and Sessions Judge, Kurnool that the offence under Section 148 IPC established, cannot be found fault with."

12. We have been taken through the evidence of Harijana

Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) and they

had been consistent that the accused were armed with daggers

and knives. They encircled the deceased and Harijana

Ramakrishna (PW.1) and caused injuries to the deceased.

Their version stands fully corroborated by the medical

evidence. Thus, we do not find any cogent reason to interfere

with the concurrent findings of fact on this issue. The

Submission made by Shri Sundaravaradan, learned senior

counsel, has no merit and thus not worth acceptance.

1 On other issues both the courts below have considered

the submissions made by the defence and rejected them. We

are in full agreement with the said findings of fact.

13. In view of the above, we are of the considered opinion

that the present case does not warrant any review of the

judgments and orders of the courts below. The appeal lacks

merit and is accordingly dismissed.

..................................J. (P. SATHASIVAM)

..................................J. New Delhi, (Dr. B.S. CHAUHAN) August 16, 2010

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