Vallabhaneni Venkateswara Rao vs State Of A.P

Vallabhaneni Venkateshwara Rao .....Appellant

Versus

State of A.P. .....Respondent

(With Criminal Appeal No.393 of 2008)

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. These two appeals are directed against the common judgment of the

Andhra Pradesh High Court. Seven accused persons had filed the appeal

before the High Court questioning their conviction for offences punishable

under Sections 302 read with Sections 149, 148 of the Indian Penal Code, 1860 (in short the `IPC'). Additionally, A1 appellant in present Criminal

Appeal no.373 of 2008 was convicted for offence punishable under Section

341 IPC. Charge was made against all the accused persons that on

9.10.2002 at about 11.30 a.m. all of them formed an unlawful assembly near

the fish tanks of Chevuru village and beat Adusumalli Ranga Rao

(hereinafter referred to as the `deceased') with casuarian sticks and caused

his death.

2. The version of the prosecution as put forth is to the effect that all the

material witnesses as well as the accused are residents of Chevuru village of

Mudinepalli Mandal, Krishna District and there have been ill feelings

between the accused and the prosecution witnesses. Accused Nos.1 and. 2

are brothers, 4 and 5 are the sons of A.1 and A.2. A.3 is the cousin and A.6

and A.7 are brothers-in aw of A.1. PWs 1 to 6 belong to one group, and the

deceased is the brother of PWs 3 and 5. PW.4 is the sister's son of the

deceased. On 9-10-2002 PW.1 went to Singarayapalem village to bring a

doctor by name B.Satynarayana (LW.2) to attend his maternal grandmother

who was suffering from ill-health. While bringing the doctor on his scooter,

at that time the deceased was also walking along on the road. When PW.1

crossed Singarayapalem Centre, the deceased stopped his scooter for a lift.

2 Then the deceased was picked up on his scooter and when they reached

Chevurupalem Anjaneya Swamy temple, at that time PW.2 was also coming

by walk. Since the road repair works were going on, PW.1 asked the doctor

(LW2) and the deceased to get down and when he was coming on the road

margin along with the scooter and reached the tanks of Dr.Vijay Kumar, by

stopping his scooter and was waiting for the arrival of the Doctor (LW2) as

well as the deceased, at that point of time all the accused who were holding

stout sticks and were proceeding towards Singarayapalem started abusing

the deceased. Later, accused No.1 caught hold of the deceased and beat with

a stout stick on the head of the deceased. A.4 and A.5 beat the deceased on

the right shoulder. A.2 and A.3 also beat the deceased on the left thigh and

further beat near the joint of leg. A.6 and A.7 also beat the deceased on the

right leg. At that time the road coolies who are attending road works also

raised cries requesting not to beat the deceased. Later PW.1 went to the

village and informed about the incident to PW.3. Thereafter, PW.3 came to

the scene of offence and came to know about the incident through the

deceased. Immediately for some time the deceased was taken to the hut of

Jagan (LW.15) situated on the tank bund and thereafter, the deceased was

shifted to Mudinepalli Police Station in Car. Assistant Sub-Inspector, PW.8

who was in the Police Station recorded the statement of the deceased under

3 Ex.P.12 and initially registered a case in Crime No.96 of 2002 for the

offences punishable under Sections 341, 324, 325 read with 34 IPC in

P.S.Mudinepalli and issued FIR to all the concerned. Ex.P.13 is the FIR.

Afterwards, the deceased was referred for treatment to the Government

Hospital, Gudivada through PC No.795 along with a hospital memo. PW.10

is the doctor treated the deceased. Ex.C.2 is the relevant entry in Ex.C.1 the

accident register pertaining to the treatment of the deceased.

Later on PW.8 took up investigation and went to Gudivada hospital

and recorded the statement of the deceased while he was alive, under

Ex.P.14 and recorded the statements of PWs 3, 5, 4 and left the Gudivada

Hospital and reached Chevuru village and also examined and recorded the

statements of PW.1 and LW.2 and again visited Chevuru village examined

and recorded the statements of LWs.12 and 13 and secured the presence of

mediators PW.6 and LW.21 and observed the scene of offence in the

presence of the above mediators and got prepared the observation report

under Ex.P.1. Further, he seized one pair of Hawai chappals (MO8) and

drew the rough sketch and thereafter examined PWs. 15 and 16 and visited

the house of the accused and came to the Police station at about 6.30 p.m. on

9-10-2002. Meanwhile Police Constable 975 came to the Police Station and

4 handed over the death intimation of the deceased under Ex.P.15 and

consequently PW.8 altered the Section of law into one under Sections 147,

148, 341, 302 read with 149 IPC. Ex.P.16 is the altered F.I.R.

Subsequently, PW.9, the Circle Inspector of Police took up further

investigation. On a requisition given by PW.9, the Judicial First Class

Magistrate Kaikaluru sent the material objects to RFSL, Vijaywada along

with a letter of advice under Ex.P.17. After receipt of the RFSL report

under Ex.P.19 and post mortem certificate under Ex.P.20, PW.9 filed

charge sheet before the Judicial First Class Magistrate, Kaikaluru and later

on, the case was committed to the Court of Session.

As accused persons pleaded innocence trial was held.

On consideration of the evidence on record the trial Court found that

the accused persons were guilty as aforenoted. Reliance was placed on two

dying declarations i.e. Ext.P-12 and Ext.P-14. Questioning their conviction

7 convicted persons filed appeal before the High Court which as noted above

held that A4 and A7 were not guilty and they were acquitted of the charges.

For their acquittal main reason is that Ext.P-14 was disbelieved. So far as

accused 1 to 3 are concerned, the appeal was dismissed.

5 The present two appeals are by A1 to A3. It is to be noted that there

were three dying declarations. The High Court has given various reasons for

rejecting Ex.P14 for recording acquittal of A4 to A7.

4. According to learned counsel for the appellant the reasons for

rejecting Ex.P14 are equally applicable to the Ex.P12 and, therefore, the

present appellant are entitled to acquittal. A1 is the appellant in Criminal

Appeal No.373 of 2008 while A2 and A3 are the appellants in Criminal

Appeal no.393 of 2008.

5. It is submitted that apart from the reasons relating to Ex.P14 there are

several other reasons which would warrant rejection of Ex.P12.

6. Learned counsel for the respondent, on the other hand, supported the

judgment of the High Court. It would be necessary to take note of the

reasons given by the High Court for the rejection of Ex.P14.

"1. P.W.10 Doctor has stated the deceased would have become

unconscious after receipt of head injury and he could not be in a

position to speak. In view of the Doctor's evidence, the deposition of

6 P.W.8 that he has recorded Ex.P.14 at the hospital is not reliable.

Further Ex.P14 was not recorded in the presence of the Doctor.

2. Ex.P.14, the 2nd dying declaration, is the improved version of

Ex.P12 first dying declaration implicating new set of accused and

introducing new set of eyewitness. So Ex.P14 is to be rejected.

Consequently, the presence of P.W1 and P.W.2 at the scene as

mentioned in Ex.P14 has to be held doubtful.

3. P.W.10 Doctor says when the injured deceased was admitted in

the hospital he was not able to speak and therefore he questioned

P.W.3 about the incident and recorded his statement in Ex.C-2

Accident Register. So the deceased who was not able to speak could

not have given Ex.P14 statement at the hospital to P.W.8 A.S.I.

7. In order to appreciate the stand taken by the appellants who contend to

Ex.P12 has also to be rejected the following factors need to be noted:

(1) P.W.8 A.S.I stated that on 9.10.2002 at 12.45 P.M. the injured

deceased was brought to police station by his elder brother P.W.3 and

7 at the Police Station the Ex.P12 Statement was recorded from the

injured deceased by P.W.8 A.S.I of Police between 12.45 P.M. and

1.15 P.M. Ex.P.12 would indicate, that P.W.8 obtained the L.T.I of

deceased. The evidence of P.W.8 and Ex.P12 statement cannot be true

because P.W.10 the Doctor stated that :

(i) The victim after receipt of first injury on the head would have

become unconscious; and

(ii) That he could not have been in a position to speak.; and

(iii) That because of the injury No.6 in the left elbow joint, he could

not be in a position to put left thumb impression.

Thus the above statement of P.W.10 Doctor falsifies the

deposition of P.W.8 who stated that he recorded Ex.P12 from the

deceased and deceased put LTI in Ex.P12.

According to P.W.8 after recording Ex.P12, the 1st dying

declaration he sent the injured deceased to the hospital along with a

constable and Hospital Memo. This statement can not be true

because, P.W.10 doctor specifically stated that the injured was not

sent by the police and there was no hospital memo. He further stated

8 that since injured was not in a fit condition to give statement, he

asked P.W.3 who accompanied the deceased about the incident.

P.W.10 Doctor admits while referring to Ex-C-2 that police did riot

accompany the deceased and that was the reason as to why Ex.C-2

does not contain the reference about the Hospital Memo sent by the

Police or the requisition of the Police and number of the Police

Constable who was said to have taken the deceased to hospital. Ex.C-

2 shows, the victim deceased was brought to the Hospital by P.W.3

alone and not by the police. Hospital Memo was not marked. The

concerned Police Constable also has not been examined. There is no

explanation from the prosecution in this regard such there is no

corroboration for the statement of P.W.8, on the other hand the

evidence of P.W.10 and Ex.C-2 is contradictory to the evidence of

P.W.8. The fact that it is not established that Police Constable

accompanied the victim deceased to the hospital along with Hospital

Memo, would indicate that P.W.3 would have come to the Hospital

directly from the scene of offence without going to the Police Station.

Therefore, the evidence of P.W.8 that he recorded the statement of

injured person in Ex.P12 at the Police Station is not reliable.

9 According to P.W.3, when the deceased was sitting in the car in

front of the Police Station, P.W.8 came out of the Police Station and

recorded Ex.P12 statement from the injured deceased. But according

to P.W.8, the injured deceased was brought inside the station from the

car and his statement Ex.P12 was recorded at the verandah of the

Police Station. Thus there is a variation. But the fact remains that both

had stated Ex.P12 was recorded at the Police Station before reaching

the hospital. If this is true P.W.3 would have stated to the doctor

P.W.10 that 3 persons attacked the deceased with sticks as refer to in

Ex.P12. On the other hand P.W.3 specifically stated to P.W.10 Doctor

that 10 persons attacked the deceased with crow bar as referred to in

Ex.C-2. As such the statement of P.W.3 to the Doctor P.W.10 is

contradictory to Ex.P12. This shows Ex.P.12 was never recorded by

P.W.8 in the police station in the presence of P.W.3 before reaching

the hospital as they directly went to the hospital. It was suggested to

P.W.3 that they shifted the deceased directly to the hospital from the

scene of offence without going to the Police Station.

Ex.P.14 is not a mere improvement of Ex.P12. The story

projected in Ex.P12 is entirely different from Ex.P14. As per Ex.P12

10 from the bus stop the injured deceased proceeded to the village by

walk and at that time A-1 to A-3 attacked him in the presence of one

eye witness Jagan. But according to Ex.P.14 the deceased came to the

road side along with PW.1 Sriniva Rao and one R.M.P. Doctor in the

scooter and at that point of time A-1 to A-7 appeared and attacked the

deceased. The story in Ex.P.12 has been given up and new case has

been projected in Ex.P-14 by introducing new set of eyewitnesses and

new set of accused. Hence both Ex.P12 and Ex.P14 can not be

believed.

It is seen from the records, 3 different stories have been

projected by the prosecution. As per Ex.P12 recorded at 12.45 P.M., 3

persons attacked with sticks in the presence of one eye witness Jagan.

As per C-2 recorded at 2.30 P.M. ten persons attacked with crow bar.

As per Ex.P14 recorded by P.W.8 before the death of deceased at 2.50

P.M. seven persons attacked with sticks in the presence of two new

eye witnesses. No clear answer comes from the prosecution as to

which of the three versions is believable.

11 Ex.P12 suffers from two infirmities. Firstly, medical evidence

is contradictory. Secondly, only eye witness Jagan mentioned in

Ex.P12 was not examined. The non-examination of the said

eyewitness would result in the lack of corroboration to Ex.P-12.

8. It is to be noted that the High Court wrongly states that Ex.P14 does

not refer to Ex.P12. In fact, it clearly states that the police recorded his

statement which is Ex.P12.

9. Above being the position, it would be unsafe to convict the accused-

appellants. Their convictions are accordingly set aside. They be set at

liberty forthwith if not required to be in custody in any other case.

.........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, May 08, 2009

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