1
IN THE COURT OF THE ADDL JUDICIAL FIRST CLASS MAGISTRATE, AVANIGADDA
Present: Sri.H. AMARA RANGESWARA RAO, B.Sc., LLM.
ADDL JUDICIAL FIRST CLASS MAGISTRATE
FRIDAY, THIS THE THIRTEENTH DAY OF APRIL, 2018
C.C. No. 430 of 2015
Between : State Rep by its Sub Inspector,
Avanigadda Police station .... Complainant
And
1. Repalle Someswara Rao, S/o.Ramadasu, 55 years,
2. Repalle Srinivasa Rao, S/o.Someswara Rao, 27 years,
3. Repalle Ranga Rao, S/o.Ramadasu, 60 years,
4. Repalle Siva Subrahmanyam @ Sivarama Subrahmanyam, S/o.Someswara Rao, 31 years, All are residents of Aswaraopalem village, Avanigadda Mandal.
..... Accused.
This case is coming on 6-04-2018 for final hearing before me in the presence of Learned A.P.P. for the state and Sri.B.V.Seshagiri Rao, Learned Advocate for the accused appeared before this court and having stood for consideration, this court delivered the following:-
J U D G M E N T
The accused has been arraigned before this court for the offences under sections 324 and 506 r/w.34 of Indian Penal code (herein after IPC).
1.The brief material averments of the prosecution case are as follows: The defacto complainant Viswanadhuni Pushpavathi (P.W.1) and all the accused are close relatives. At the time of marriage of P.W.1, her father gifted Ac.1.14 cnts wet land to her towards pasupukumkuma. Her father passed away in the year 2004. Subsequently she looked after her mother. Thereafter, since May, 2015 her brothers have been looking after her mother. After death of P.W.1's father, her brothers started demanding her to hand over the above said land. They sent one Bathcu Sambasiva Rao and Chittiprolu
Subba Rao as mediators and asked her to sell the above said land. But P.W.1 refused it.
While so, on 6.9.2015 at about 10.30am on coming to know that the accused who are her brother and nephews were ploughing the above said land, she went there and questioned them about it. Then A1 beat her with the stick of spade over her neck, A.2 beat her with the stick of the spade over her left hand elbow and caused bleeding injury. A.3 and A.4 beat her with hands and all of them threatened to kill her if she again came to the said land. Immediately neighbors shifted her to their house. Thereafter, P.W.1’s elder brother 2 one Repalle Veera Raghavaiah informed her that he will raise dispute before the elders, and asked to not to go to police station immediately after the incident. Subsequently he conveyed his inability to settle the dispute.
2.Thereafter, on 11.9.2015 at 12 noon she submitted Ex.P1 report to the then S.I of police of Avanigadda P.S D.Venkat Kumar (P.W.5). Basing on it he registered Ex.P3 FIR in
Cr.No.187/2015 of Avanigadda P.S u/s.447, 323, 324, 506 r/w.34 IPC. He conducted investigation. After completion of investigation he filed charge sheet.
3.This Court took cognizance for the offence punishable U/s. 324 and 506 r/w.34 IPC.
4.On appearance of the accused copies of documents as contemplated U/s.207 The
Code of criminal procedure (herein after Cr.P.C.) were furnished to the accused.
5. Accused were examined U/s.239 Cr.P.C. Charges for the offence U/s. 324 and 506 r/w.34 IPC have been framed, read over and explained to accused in Telugu. Accused denied all the allegations leveled against them, pleaded not guilty and claim to be tried.
6.In order to prove its case, the prosecution examined P.Ws.1 to 5 and exhibited
Exs.P1 to P.4.
7. After closure of the prosecution evidence, the accused were examined under section 313 Cr.P.C. about the incriminating material against them from the prosecution evidence. They denied the prosecution evidence and reported no defence evidence. They submitted that in view of the agricultural land dispute, P.W.1 filed a false case against them. They filed certified copies of civil suit pending between them.
8.Heard both sides.
9.Now the point for consideration is :
“Whether the prosecution has established the guilt of the accused for the
offence U/Sec. 324, 506 r/w 34 I.P.C. beyond all reasonable doubt ?” 3
10.Learned APP submitted that the evidence of P.Ws.1 to 3 is consistent that all the accused, in furtherance of their common intention, beat P.W.1 with handle of a spade, hands and caused simple injuries to her, the evidence of P.W.4, 5 and Exs.P1 to P4 are corroborating the evidence of P.Ws.1 to 3 in material particulars. She further submitted that their cross-examination did not elicit any material contradictions to disbelieve their evidence. Hence, their evidence is believable. She further submitted that the prosecution proved the guilt of the accused beyond reasonable doubt. Therefore, prays to convict the accused.
11.On the other hand learned defence counsel contended that the accused are innocent, P.W.1 has filed a false case against the accused in view of the civil disputes between herself and the accused relating to the Ac.1.14 cnts land situated at the scene of offence, the prosecution did not produce any material showing that P.W.1 has exclusive right over the above said property and hence the investigating officer deleted Sec.447
IPC at the time of filing the charge sheet. He further submitted that the cross-examination of P.W.3 elicited that he is not direct witness to the alleged incident, he does not have any agricultural properties at the scene of offence, he is not consistent with regard to reason for going to the scene of offence and hence, his presence at the scene of offence at the time of the alleged incident is not believable. He further submitted that in Ex.P1 the earliest version of P.W.1 she did not state about the presence of P.W.2 at the scene of offence, the cross-examination of P.W.1 elicited that P.W.2 was not present at the scene of offence at the time of alleged assault of accused over P.W.1. Hence, the presence of
P.W.2 at the scene of offence at the time of the alleged incident is not believable. He further submitted that the cross-examination of P.W.1 has elicited that she has exaggerated her evidence with regard to the specific overt act of accused over her, there are no corresponding injuries over her, Ex.P1 is not corroborating the evidence of P.W1 in material particulars, except the self interested testimony of P.W.1, there is no independent witness corroborated her evidence and the prosecution has no explanation for non examination of independent witnesses cited by it. Hence, her evidence with regard to the alleged incident is not believable. He further submitted that there is inordinate delay in submitting Ex.P1 report to police, the prosecution has no explanation for the said delay, the cross-examination of P.Ws.1 and 2 elicited that there were strained relation between P.Ws.1, 2 and one Repalle Veera Raghavaiah, the prosecution did not 4 examine him to show that he tried to conduct mediation prior to P.W.1 submitting Ex.P1 report to police. Hence, the evidence of P.Ws.1 and 2 that in view of the efforts of the said Veera Raghavaiah before the village elders for pacifying the said dispute, there was delay in submitting Ex.P1 report is not believable. Hence, the non-explanation of the delay in submitting Ex.P1 report to police is fatal to the case of the prosecution. He further submitted that there is shift of scene of offence and the cross-examination of
P.Ws.2,3 elicited that one report was submitted to police prior to Ex.P1 report, the prosecution did not produce the same before Hon’ble court, the shift of scene of offence and suppressing the original FIR alleged to be submitted to police is fatal to the case of the prosecution. He submitted that the prosecution failed to prove the guilt of the accused beyond reasonable doubt. Therefore, prays to acquit the accused. In support of his contention, he placed reliance on the following decisions:
1) Tummala Lova Raju Vs. State of A.P [2009 (1) ALD (Crl) 720 (A.P)].
2) Shankar Lal Vs. State of Rajastan [2004 (2) ALD (Crl) 288 (S.C.)].
3) Sunturu Somireddy Vs. State of Andhra Pradesh [2009 (1) ALD Crl. 429 A.P].
4) Narinderpal Singh Vs State of Punjab [2017 (2) ALD (Crl) 457 (SC)].
5) Perugu Biksham and another Vs State of A.P [2004 (2) ALD (Crl) 90 (AP)].
6) Hemraj and others Vs. State of Haryana [2005 (1) ALD (Crl) 710 (SC)].
7) Dumpala Muralidhar Reddy Vs State of A.P [2006 (2) ALD (Crl) 413 (AP].
8) Moso Kaitha @ Mosolohra Vs. State of Jarkhan [2015 (1) Crimes 438 (Jhar) (SN].
12.In order to bring home the guilt of the accused, the prosecution must establish that
1) P.W.1 sustained simple injuries
2) The accused caused the said injuries to P.W.1 with a dangerous or deadly weapon,
3) All the accused uttered words against P.W.1, to cause intimidation to her.
4) All the accused did the said acts in furtherance of their common intention.
13.In so far as the injuries over P.W.1 is concerned, in the evidence of P.W.1 she testified that she sustained injuries over her neck and left fore arm. Further, in the evidence of P.Ws.2 and 3, they testified that P.W.1 sustained blood injuries over her neck and her left upper arm. The evidence of P.Ws.2 and 3 is corroborating the evidence of
P.W.1 with regard to injuries over her. Further, in Ex.P1 the earliest version of P.W.1 also she testified that she sustained injuries over her left hand and neck. Further the evidence 5 of medical officer P.W.4, who examined P.W.1 and issued Ex.P2 wound certificate goes to show that P.W.4 examined P.W.1 and issued Ex.P2 wound certificate of P.W.1 goes to show that he noticed the following injuries over him.
1) An abrasion of size 2 x 1 inches present over left elbow
2) Contusion of size 2 x 2 cms present over left arm
3) Complaining of pain over the left side of her face.
4) Complaining of pain over neck.
14.Ex.P2 is corroborating the evidence of P.W.1 relating to the overt act over P.W.1’s left arm. As seen from Ex.P1, P.W.1 sustained blood injuries over her neck. If P.W.1 really sustained the said injuries, P.W.4 would have noticed the same, but he did not notice the same. Further, pain is the complaint of the patient and not visible injury. Hence, it cannot be said that she sustained injuries over the left side of her face and also neck. The evidence of P.W.4 is only goes to show that P.W.1 sustained injuries over his left hand. In view of the foregoing discussion, the evidence of P.W.s1 to 3 that P.W.1 sustained injuries over her left is only believable. Therefore, it can be safely held that the prosecution is successful in establishing that P.W.1 sustained simple injuries over her left hand.
15.In so far as the reason for the injuries over P.W.1 is concerned, as per the story of the prosecution, consequent to the refusal of P.W.1 to sell her Ac.1.14 cnts land to the accused, in view of the disputes between them relating to the said land, A.1 and A.2 beat
P.W.1 with the handle of the spade, A.3 and A.4 beat her with their hands, legs and caused the said injuries.
16. In order to prove the overt acts of accused over P.W.1, the prosecution examined
P.Ws.1 to 3. In the evidence of P.W.1, she testified that Two months prior to 6.9.2015 the accused sent one Batchu Sambasiva Rao and Chittiprolu Sambasiva Rao asking her to sell the Ac.1.18 cnts land gifted to her by her father, she refused to sell it, subsequently on 6.9.2015 at 10.00am she noticed the accused were ploughing the said land, when she went here and questioned them, A1 beat her with the back of the spade over her neck,
A.2 beat her with the handle of the spade over her left hand, A.3 and A.4 pushed her down and beat her with their hands. P.Ws.2 and 3 also deposed that A.1 and A.2 beat
P.W.1 with the handle of spade and A.3 and A.4 beat her with their hands..
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17.Learned defence counsel has mainly disputed the very presence of P.Ws.2 and 3 at the scene of offence at the time of the alleged incident. He subjected P.Ws.1 to 3 with regard to the presence of P.Ws.2 and 3 at the scene of offence at the time of the alleged incident. In the cross-examination of P.W.1, she admitted that P.W.2 came to the scene of offence after 15 minutes of the alleged incident and he did not stop the accused. It goes to show that P.W.2 was not present at the scene of offence from the beginning of the alleged incident. The evidence of P.W.1 clearly shows that immediately after she went to scene of offence, the alleged assault over her took place. As per her admission, he came to scene of offence after 15 minutes of the incident. Further more, in Ex.P1, the earliest version of P.W.1, she did not state about the presence of P.W.2 at the scene of offence at the time of the alleged incident. In it, she stated the presence of P.W.3 and another person at the scene of offence at the time of the alleged incident. If P.W.2 was really present there, she would have stated the same in her Ex.P1 report. Further in the cross- examination of PW.2, Ex.D.1 contradiction was marked. Ex.D.1 clearly shows that P.W.2 has exaggerated his evidence with regard to the presence of himself and his son. Hence, in view of the afore stated circumstances and in view of the ratio relied by learned defence counsel in Perugu Biksham and another (supra), the evidence of P.W.2 with regard to his presence at the scene of offence at the time of the alleged incident is not believable.
18.In so far as the presence of P.W.3 at the scene of offence at the time of the alleged incident is concerned, in the evidence of P.W.3, he testified that on the date of alleged incident on 6.9.2015 at about 10.30 or 11.00am when he was present at his agricultural land, he witnessed the incident. As seen from the evidence of P.W.1, the alleged scene of offence is situated in Aswaraopalem village. In the cross-examination of P.W.3 he admitted that his agricultural land are not situated in Aswaraopalem village. When he has no agricultural lands at the said village, it is highly improbable for him to be present at the scene of offence. Further more, it is the very defence of the accused that P.W.3 has been residing at Avanigadda for the last 3 years. P.W.3 denied the suggestion of learned defence counsel that he is residing at Avanigadda. It is the evidence of P.W3 that he is resident of Aswaraopalem village. If it is the case so, he would have identification proof like ration card or voter I.D card with his address at Aswaraopalem village. But his admission goes to show that he do not have them. Therefore in view of the afore stated 7 circumstances and his exaggerations present in the cross-examination with regard to shifting P.W.1 to the hospital and submitting police report, his evidence with regard to the presence at the scene of offence at the time of the alleged incident is not believable.
19.P.W.1 is only the available witness testified about the incident. She is injured witness. The injuries over her will lend assurance about her presence at the scene of offence. She testified about the specific overt acts of each accused over her. It is the contention of learned defence counsel there were long pending civil disputes between herself and the accused, civil suits were also filed against each other and in view of the said civil suits she filed a false case against the accused, in view of the enmity between them, her evidence is not believable.
20.In so far as the pendency of civil suits between P.W.1 and the accused is concerned,
P.W.1 was cross-examined at length to show that there were long pending civil disputes between herself and the accused with regard to the scene of offence land. In the cross- examination, she admitted that there were civil suits pending between them and the said disputes are the reason for civil suits and the present incident. The admission of P.W.1 clearly shows that there were disputes between herself and the accused, though they are close relatives, with respect to the scene of offence land. Further, in the cross- examination of P.W.1, she admitted that her son filed O.S.No.160/2016 against the accused, her brothers with respect to the scene of offence land and he did not obtain any injunction order. Her cross-examination also goes to show that she conveyed the property to her son and there were disputes between them with regard to the said land.
The admission of P.W.1 in her cross-examination and the documents filed by the accused at the time of Sec.313 Cr.P.C examination clearly shows that there were disputes between both of them with respect to the scene of offence land.
21.The admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the 8 crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime.
Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the injured witness was related to the eye-witnesses or previously there were some disputes between the accused and the injured or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case.
However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, if the deposition of whom is otherwise consistent and convincing. Hence a close scrutiny of the evidence of P.W.1 is necessary.
22.Coming to the facts on hand, it is the specific evidence of P.W.1 that A.1 beat her with the handle of spade over her neck and caused injury to her. In Ex.P1, she stated that she sustained blood injury over her neck. But the evidence of P.W.4 and Ex.P2 goes to show that the medical officer examined P.W.1 did not notice any blood injury over her neck. If P.W.1 really sustained any blood injury, he would have noticed the healed injury over her neck, but he testified that P.W.1 complained pain over her neck. Pain is only the complaint made by the patient and not a visible injury, hence in view of the afore stated circumstances, it is not safe to believe the evidence of P.W.1 that A.1 beat her with the handle of spade and caused injury to her.
23.Her evidence further goes to show that A.3 and A.4 pushed her down, beat her with their hands. She did not state specific place of assault of each accused over her. Except making omini bus allegations against A.3 and A.4, she did not state specific overt act of
A.3 and A.4, specific injury caused by them over her body. As discussed supra, there were long pending civil disputes between them. Hence, in view of the said circumstance, it is not safe to believe the omini bus allegation of the P.W.1 with regard to overt acts of
A.3 and A.4 over her.
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24.In view of the foregoing discussion, the evidence of P.W.1 is not causing belief to this court with regard to the overt acts of A.1 A3 and A.4. However, her evidence is consistent that A.2 beat her with the handle of the spade over her left hand and caused injury to her. Further, the medical evidence is also corroborating her evidence with regard to the injury over her. P.W.1 was cross-examined at length, her cross-examination did not elicit any material contradictions to disbelieve her evidence with regard to the overt act of A.2 over her.
25.Now the question for consideration is whether the evidence of P.W.1 relating to overt acts of A2 over her shall also the disbelieved in view of the disbelief of her evidence relating to the overt acts of A.1, A.3 and A.4.
26.In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence.
Further, exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited
27.Further, it is the duty of court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars.
The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this 10 maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence.
28. Coming to the facts on hand, as discussed supra the evidence of P.W.1 is consistent that A.2 beat her with the stick of spade over her left hand. Ex.P1 and P2 are corroborating the evidence of P.W.1 in material particulars and her cross-examination did not elicit any material contradictions to disbelieve her evidence with regard to the said fact. Hence, the evidence of P.W.1 that A.2 beat her with the stick of spade over her left hand and caused simple injury to him is believable.
29.In so far as the contention of learned defence counsel that there is shift of scene of offence and the prosecution no explanation for the shift of scene of offence and hence it is fatal to the case of the prosecution is concerned, in the evidence of P.W.1 she categorically stated that the incident took place in the Ac.1.18 cnts situated at the scene of offence. But the evidence of P.W.5 and Ex.P4 goes to show that the scene of offence is situated at the bund situated near the above said agricultural land. The said bund is the boundary of the above said agricultural land and it is very near to it. In Ex.P1, and the statement of P.W.1, she categorically stated that the incident took place in the agricultural land and not at the bund. The investigating officer did not state on whose information he showed the scene of offence at the bund of the said land. His evidence relating to the scene of offence is only a hear say evidence. Further more, the shift of scene of offence will be fatal when it was shifted so as to make any particular person as witness to the incident. Herein this case, the material on record is not revealing that the shift was made so as to make any particular person as witness.
30.Further more, in the decision relied by learned defence counsel in Tummala Lova
Raju (supra), it was held that the shift of scene of offence is fatal to the case of the prosecution as the witnesses there in have made improvements relating to the scene of offence to show that the witness are witnesses to the incident. Hence, their lordships held that the shift of scene of offence is fatal to the case of the prosecution. But it is not 11 the case so in the present case. Hence, the said decision is not applicable to the facts on hand. Therefore, the contention of learned defence counsel has no force.
31.In so far as the contention of learned defence counsel that the prosecution has suppressed the original first report submitted by P.W.1 to police and hence, it is fatal to the case of the prosecution is concerned, in the evidence of P.W.1 she categorically stated that Ex.P1 is the only report submitted to police and she did not submit any report prior to it. Where as in the cross-examination of P.W.3, he admitted that on the next date of alleged incident Ex.P1 was drafted and she went to police station, on the dictation of
P.W.1, police recorded her statement. But as discussed supra, the evidence of P.W.3 with regard to the very presence of him at the scene of offence is not causing belief to this court. Hence, his evidence with regard to submission of said report is also not believable.
Further more, in the decision relied by learned defence counsel in Dumpala Muralidhar
Reddy (Supra), the defacto complainant therein admitted in his cross-examination that he submitted one report prior to Ex.P1 report against Three other persons and he withdraw their names in the subsequent report. In the said case, the admission of the informant clearly revealed that he withdraw the earlier report and submitted a fabricated report to the police and hence, their lordships held that the suppression earlier report is fatal to the case of the prosecution. But it is not the case so in the present case. Therefore, in the said decision is not applicable to the facts on hand. Hence, the contention of learned defence counsel is not tenable.
32. Learned defence counsel further contended that there is inordinate delay in giving
Ex.P.1 report to police. The prosecution has no explanation for the delay. Hence it is fatal to the case of the prosecution.
33. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian
Chand, (2001) 6 SCC 71 wherein Hon'ble Apex Court has expressed thus: - 12 “Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.”
34. In Ramdas and others v. State of Maharashtra reported in (2007) 2 SCC 170,
Hon'ble Apex Court has observed that;
“mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay.”
35. In Meharaj Singh v. State of U.P. Reported in (1994) 5 SCC 188, a two-Judge Bench of Apex Court has observed that “FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial and the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any, for delay in lodgment of the FIR results in embellishment which is a creation of afterthought. Emphasis was laid on the fact that on account of delay, the FIR not only gets bereft of the advantage of spontaneity but also danger of introduction of a coloured version or exaggerated story.”
36. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinizing the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kilakkatha Parambath Sasi and others v. State of Kerala reported in AIR 2011 SC 1064, it has been observed that “when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened.” 13
37. The present factual scenario is to be tested on the touchstone of the aforesaid principles. In so far as the delay is concerned, as seen from Ex.P1, the alleged incident took place on 6.9.2015 at 10.30am and as seen from Ex.P1 and P3, Ex.P1 was submitted to police on 11.9.2015 at 12 noon. It goes to show that Ex.P1 was submitted to police after 5 days of the alleged incident.
38.In so far as the delay in submission of Ex.P1 report to police is concerned, in the evidence of P.W.1 and in Ex.P1, P.W.1 stated that her elder brother Repalle Veera
Raghavaiah informed her that as both parties are relatives, he suggested her that they will settle the dispute. The evidence of P.W.1 goes to show that as they waited for settling the dispute before the elders, the delay has occurred.
39.In the cross-examination of P.W.1, she was subjected to cross-examination to show that there were strained relations between P.W.1,her brother Veera Raghavaiah and hence there is no chance of raising dispute before elders to him. It is also contended by learned defence counsel that the prosecution did not examine the said Veera
Raghavaiah, his non-examination is fatal to the case of the prosecution and hence the evidence of P.W.1 relating to reason for the delay is not believable.
40.In so far as the contention of learned defence counsel that the non-examination of the said Veera Raghavaiah is fatal to the case of the prosecution is concerned, admittedly the prosecution did not examine him. His examination is necessary to prove the reason for the delay in submitting Ex.P1 report. P.Ws.1 and 2 categorically deposed about the said fact.
41.It is well settled legal principle that evidence has to be weighed and not counted.
The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is the quality of the evidence that matters to prove a fact and it is not the quantity that matters. That is the logic of Section 134 of the Evidence Act. Thus,it is the quality that counts and not the quantity. In the decision relied by learned defence counsel in mosokaithe @ Moso Lohara (supra) Hon’ble Jarkhand High Court held that even the prosecution thinks that a 14 particular witness has been won over by the other side, then also it is the duty of the prosecution to examine him and to cross-examine him with the permission of the court, even if he did not support the case of the prosecution. But in the decision relied by learned defence counsel in Hemraj (Supra) Hon’ble Apex Court held that the mere non- examination of independent witness by itself may not give raise to adverse inference against the prosecution, however when the evidence of alleged eye witness raised doubts on the point of their presence at the time of actual occurrence the unexplained omission to examine the independent witness would assume significance. Thus, when the evidence of Prosecution witnesses caused any doubt relating to a particular fact, the non- examination of independent witness relating to the said fact is fatal to the case of the prosecution. But as discussed supra, the evidence of P.W.1 and Ex.P1 are causing belief relating to raising dispute before the elders on the intervention of said Veera Raghavaiah.
Therefore, the non-examination of the said Veera Raghavaiah is not fatal to the case of the prosecution and basing on the said circumstance adverse inference cannot be drawn against the prosecution case with regard to raising dispute before elders.
42.In so far as the strained relations between P.W.1 and the said Veera Raghavaiah is concerned, in the cross-examination of P.W.1, she admitted that disputes were raised
before the elders with regard to his son due amount to be given to her son, her family
members supported her son and the brothers of the accused supported the said Veera
Raghavaiah’s son. Though her admission goes to show that there were instances like raising dispute before elders with regard to money due amount dispute between P.W.1’s son and the said Veera Raghavaia’s son, P.W.1 categorically denied the suggestion that there are no talking terms between herself and the said Veera Raghavaiah one year prior to the alleged incident. The cross-examination of P.W.1 did not elicit any material to show that there was bitter enimocity between P.W.1 and the said Veera Raghaviah. Further more, he is none other than her brother and the accused are also her brothers and nephews. Therefore, it is very natural for them to raise dispute before the elders to settle the dispute and to not to go to police station immediately after the incident. Though the admission of P.W.1 and 2 goes to show that after 4 days of the incident he conveyed that there is no chance of settling the issue before the elders, waiting for one day after it is natural one as they will approach their kith, kin and the distance between their village and police station is about 4 kms. Further more it must be shown that the delay has given 15 opportunity to fabricate Ex.P1 report. But in the cross-examination of P.W.1 even it is not suggested that Ex.P1 is fabricated one. Therefore, it cannot be said that the prosecution has no explanation for the delay and hence it is fatal to the case of the prosecution.
43.Further,In the decision relied by learned defnece counsel in Shankar Lal (supra)the alleged eye witness therein presence at the scene of offence at the time of the alleged incident was doubtful, the delay for submitting FIR is not explained, he Sunduru
Somireddy Vs State of A.P the delay was not properly explained and the alleged informant is not direct witness to the alleged incident and he came to know about the alleged incident. But, here is not the case so. Hence, the ratio in the above decisions relied by learned defence counsel is not applicable to the facts on hand. Hence, the contention of learned defence counsel that the prosecution has no explanation for the delay in submitting Ex.P.1 and hence, it is fatal to the case of the prosecution is not tenable.
44.In the decision relied by Narinderpal Singh (supra) the testimony of witnesses to the incident is doubtful and hence the accused are entitled to acquittal. But herein this case though the presence of P.Ws.2 and 3 at the scene of offence is doubtful, the evidence of P.W.1 is causing belief with regard to her presence at the scene of offence, being injured witness her presence at the scene of offence is believable. Hence, the ratio in the said decision is not applicable to the facts on hand.
45.Now the final question for consideration is whether A.1, A3 and A.4 are jointly liable for the acts done by A.2.
46.In so far as the common intention of the accused is concerned, the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case.
47. The vicarious or constructive liability under section 34 IPC can arise only when two conditions stand fulfilled, i.e., the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
16
48.In Krishnan and Anr. v. State represented by Inspector of Police (2003) 7 SCC 56, their lordships observed that “section 34 is dependent on the circumstances of each case. No hard and fast rule can be made out regarding applicability or non-applicability of section 34.”
49. Further in Girija Shankar vs State of U.P (2004) 3 SCC 793, their lordships observed that section 34 has been enacted to elucidate the principle of joint liability of a criminal act.
“Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same is if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.”
50. In Ramesh Singh @ Photti v. State of A.P. (2004) 11 SCC 305, it has been observed as under:
“ As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.”
51.In Bengai Mandal @ Begai Mandal vs State of Bihar (2010) 2 SCC 91 after referring to some allied decisions of Apex Court their lordships has held that the position with 17 regard to Section 34 IPC is crystal clear and that the existence of common intention is a question of fact. It was held that since intention is a state of mind, it is, therefore, very difficult if not impossible to get or procure direct proof of intention and, therefore, courts in most cases have to infer the intention from the act or conduct of the party or other relevant circumstances of the case. “14. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case.
However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance.” In this decision their lordships has laid down principle of overt act in determining the common intention of the accused. Hence the overt act of the accused and conduct of accused at the scene of offence will be determining factor to establish the common intention of the accused.
52.Further in Ashok Kumar vs. State of Punjab (1977) 1 SCC 746 their lordships has observed that the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
53.In view of the above legal position the proof of overt act of accused is necessary to prove the common intention of the accused. But the overt act of each accused need not be the same act.
54.Coming to the facts on hand, as discussed supra, the evidence of P.W.1 as discussed supra the prosecution failed to establish the overt acts of A.1, A.3 and A.4.
Hence they are not jointly liable for the acts of A.2.
55.In so far as the criminal intimidation of the accused towards P.W.1 is concerned, as per the story of the prosecution the accused threatened to kill P.W.1. In the evidence of 18
P.W.1 she testified that the accused getting to see her end. But she did not state the specific overt act of accused in order to cause alarm in the mind of P.W.1. It appears that the words was spoken in the heat of the said dispute. Further, she did not state the specific word uttered by each accused. Hence, it cannot be said that the accused uttered words to cause alarm in the mind of P.W.1.
56. In view of the afore stated reasons, this court holds that the prosecution proved the guilt of the accused A.2 for the offence u/s.324 IPC beyond reasonable doubt.
57. In the result, accused A1 to A.4 are found not guilty for the offence U/s 506 IPC,
A.1, A3 and A4 are not found guilty for the offence u/s.324 r/w.34 IPC. For the same they are acquitted u/s.248(1) Cr.P.C. However, A.2 is found guilty for the offence u/s.324 IPC.
For the same he is convicted u/s.248(2) Cr.P.C. The bail bonds of A.1, A3 and A.4 shall stands discharged after six months.
Typed to dictation to Personal Assistant, corrected and pronounced by me in the open court on this 13 th day of April, 2018.
Sd/-H.Amara Rangeswara Rao.,
ADDL. JUDICIAL FIRST CLASS MAGISTRATE,
AVANIGADDA.
Accused A.2 is questioned with regard to quantum of sentence, He submitted that his parents, wife and small children are dependents on him, he has to look after his ill health parents, he is sole bread winner of his family. Hence, prayed to take lenient view with regard to quantum of sentence. It is not a fit case to invoke the provisions of P.O Act. However considering the dependency of the family members of the convicted, facts and circumstances present in this case, I am taking lenient view with regard to quantum of sentence. In the result, accused A.2 is sentenced to undergo simple imprisonment for SIX MONTHS and shall pay fine of Rs.1000/- for the offence U/s.324 IPC. In default of payment of fine each accused shall undergo simple imprisonment for a period of one month. The convicted did not undergo any detention. Hence, they are not entitled to set off u/s.428 Cr.P.C. Out of the fine paid by the convicted Rs.1000/- is awarded as compensation to P.W.1. The convicted is informed about his right to prefer appeal against this judgment to
Hon'ble District & Sessions Court, Krishna, Machilipatnam. He is also informed about his
right to free legal aid to prefer appeal. He submitted that he has means to engage an advocate to prefer appeal. Office is directed to supply the free copy to prefer appeal of the judgment to the convicted forthwith Typed to dictation to Personal Assistant, corrected and pronounced by me in the open court on this 13 th day of April, 2018.
Sd/-H.Amara Rangeswara Rao.,
ADDL. JUDICIAL FIRST CLASS MAGISTRATE,
AVANIGADDA.
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED:
FOR PROSECUTION : FOR DEFENCE : None. P.W.1: V.Pushpavathi P.W.2: V.Venkateswara Rao P.W.3: P.Sivaramakrishna P.W.4: Dr.P.Bhaskar Kumar P.W.5: D.Venkat Kumar
DOCUMENTS MARKED
FOR PROSECUTION : Ex.P.1: Report of P.W.1 Ex.P.2: Wound certificate of P.W.1 Ex.P.3: FIR Ex.P.4: Rough sketch.
FOR DEFENCE : Nil.
M.Os. MARKED:
Nil.
Sd/-H.Amara Rangeswara Rao.,
ADDL. JUDICIAL FIRST CLASS MAGISTRATE,
AVANIGADDA.
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CALENDAR AND JUDGMENT
District of Krishna Calendar of Cases tried by ADDL. JUDL. I CLASS MAGISTRATE, AVANIGADDA -------------------------------------------------------------------------------------------------------- Date of offence Report of complaint Apprehension of Accused Release on bail (1) (2) (3) (4) -------------------------------------------------------------------------------------------------------- 6.9.2015 11.9.2015 - - -------------------------------------------------------------------------------------------------------- Commencement of trial Close of trail Sentence of order Explanation for delay (5) (6) (7) (8) -------------------------------------------------------------------------------------------------------- 30.1.2017 20.7.2017 13.4.2018 Due to non-production of witness --------------------------------------------------------------------------------------------------------- Judgment of Calendar Case No.430/2015 on the file of Judicial Magistrate of I Class, Avanigadda. Complainant: The State: Station House Officer of Avanigadda Police Station in Crime No.187/2015 of Avanigadda police station -------------------------------------------------------------------------------------------------------- Name of the AccusedFather Name AgeCaste/Region:Calling Village -------------------------------------------------------------------------------------------------------
1. Repalle Someswara Rao, S/o.Ramadasu, 55 years,
2. Repalle Srinivasa Rao, S/o.Someswara Rao, 27 years,
3. Repalle Ranga Rao, S/o.Ramadasu, 60 years,
4. Repalle Siva Subrahmanyam @ Sivarama Subrahmanyam, S/o.Someswara Rao, 31 years, All are residents of Aswaraopalem village, Avanigadda Mandal. _________________________________________________________________ Offence:U/s.324, 506 r/w.34 IPC
Finding: Accused A1 to A.4 are found not guilty for the offence U/s 506 IPC, A.1, A3 and A4 are not found guilty for the offence u/s.324 r/w.34 IPC. However, A.2 is found guilty for the offence u/s.324 IPC.
Sentence:IN THE RESULT, accused A1 to A.4 are found not guilty for the offence U/s 506 IPC, A.1, A3 and A4 are not found guilty for the offence u/s.324 r/w.34 IPC. For the same they are acquitted u/s.248(1) Cr.P.C. However, A.2 is found guilty for the offence u/s.324 IPC. For the same he is convicted u/s.248(2) Cr.P.C. The bail bonds of A.1, A3 and A.4 shall stands discharged after six months and accused A.2 is sentenced to undergo simple imprisonment for SIX MONTHS and shall pay fine of Rs.1000/- for the offence U/s.324 IPC. In default of payment of fine each accused shall undergo simple imprisonment for a period of one month. The convicted did not undergo any detention. Hence, they are not entitled to set off u/s.428 Cr.P.C. Out of the fine paid by the convicted Rs.1000/- is awarded as compensation to P.W.1.
Sd/-H.Amara Rangeswara Rao.,
Addl.Judl. I Class Magistrate,
AVANIGADDA
Copy submitted to the I Addl. Dist. Judge, Krishna District Copy to the Superintendent of Police, Krishna District. Dis.No.Dt