IN THE COURT OF ASSISTANT SESSIONS JUDGE, GUDIVADA
PRESENT: SRI I. SRINIVASA MURTHY Assistant Sessions Judge, Gudivada.
Monday, this the 15th day of March, 2021.
SESSION CASE No.398/2015
(P.R.C.No.55/2015, order dated 01.10.2015 on the file of court of Addl. Judicial Magistrate of First Class, Gudivada)
Between: State: Sub-Inspector of Police,
Gudivada Taluka Police Station, Gudivda.. Complainant
And
1.B.Sambaiah, S/o.Arjuna Rao, 45 years, 2.B.Venkateswara Rao, S/o.Arjuna Rao, 50 years, 3.B.Nagaraju, S/o.Sambaiah, 20 years, 4.B.Satyanarayana, S/o.Arjuna Rao, 60 years,
5. B.Nagavasu, S/o.Satyanarayana, 27 years,
6. K.Siva Sankara Rao, S/o.Krishna, 30 years, 7.B.Arjuna Rao, S/o.Venkatapaiah, 85 years, 8.B.Naresh, S/o.SAtyanarayana, 22 years, 9.B.Samba Siva Rao, S/o.Venkateswara Rao, 24 years, 10.B.Subbamma, W/o.Sambaiah, 35 years, 11.B.Padmavathi, W/o.Satyanarayana, 45 years, 12.K.Uma Devi, W/o.Siva Sankara Rao, 27 years, All are by caste Kummari and R/o.Serevelpuru village, Gudivada Mandal.
.. Accused
Charge : Under sections 307, 326 and 324 r/w.149IPC. Plea of the accused : not guilty. Finding of the Court : GUILTY Sentence or order : In the result, all the accused persons are found not guilty for the offence under section 307 r/w.149 IPC and they are acquitted of the said offence under section 235(1) of Cr.P.C. However, all the accused persons are found guilty for the offence under section 326 r/w.149 IPC for causing grievous hurt to P.Ws.2 and 4 and they are also found guilty for the offence under section 324 r/w.34 IPC for causing simple hurt to P.Ws.1 and 3 and accordingly they are convicted for the said offences under section 235 (2) Cr.P.C. Considering the totality of circumstances, A1 to A12 are sentenced to suffer simple imprisonment for ONE YEAR each and to pay a fine of Rs.200/- each, in default simple imprisonment for one month each for the offence under section 326 r/w.149 IPC. A1 to A12 are further sentenced to suffer simple imprisonment for SIX MONTHS each for the offence under section 324 r/w.149 I PC. Both substantive sentences shall run concurrently.
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A1 to A5 and A8 are in custody for 13 days from 31.12.2014 to 13.01.2015, whereas A6, A7, A9 to A12 were in custody for 15 days from 07.01.2015 to 22.01.2015. The accused persons are entitled to set off of the above said period as per section 428 Cr.P.C. Mos.1 to 6 shall be sent to the committal court for destruction after appeal time is over.
This case has come up on this day before me for trial in the presence of learned A.P.P for the State and of Sri P.Eswara Rao, counsel for accused and the matter having stood over for consideration till this day, this court delivered the following:
JUDGMENT
The SI of Police, Taluq police station, Gudivada filed charge sheet against A1 to A12 for the offences under sections 307, 326 r/w.34 IPC in Cr.No.213/2014 of Gudivada Taluq police station.
2.Brief averments of the prosecution case are as follows:
A1, A2 and A4 are own brothers and other accused persons are blood relatives. L.W.3 Kanulla Srinivasa Rao and accused persons are inhabitants of same lane and they lived by doing their caste profession pottery works. They used to dump clay in front of their respective houses and in that connection some disputes arose between them regarding usage of lane. Both groups indulged in several physical tussles for the last three years, and that in
September, 2013 there was a free fight and in that connection
CC.Nos.213/2013 and 219/2013 are pending before the court. Thus, there is a strained relation with regard to strained feelings between the two groups.
ii) About one week prior to the occurrence, A1 dumped clay in the lane causing inconvenience to L.W.3 Kanulla Srinivasa Rao, and that L.Ws. 1 to 3 Kanulla Swamy, Kanulla Veera Venkateswara Rao and Kanulla Srinivasa Rao made it an issue and got pressure on the accused persons to remove the clay. Therefore, accused persons 3 developed wrath against them and made up a mind to do away them.
On 28.12.2014 at about 7.30 P.M., as per their pre-arranged plan, A1 invited quarrel abusing L.Ws. 1 to 3 by name Kanulla Swamy, Kanulla
Veera Venkateswara Rao and Kanulla Srinivasa Rao, and that all the persons armed with stout sticks (Thatipellu), beat them indiscriminately causing serious injuries to them. Meanwhile, L.Ws.4 to 15 by name Kanulla Venkateswara Rao, Kanulla Siva Parvati,
Kanulla Lakshmi, Kanulla Sitamma, Kanulla Sivanarayana @ Bujji,
Kanulla Sivanarayana @ Sivaiah, Kanulla Siva Nagaraju, Kanulla
China Nagaraju, Kanulla Parvathi, Kanulla Naga Venkateswara Rao,
Kanulla Sivaramanjaneyulu and Kanulla Malleswari rushed to the rescue of the injured persons and then A2, A3, A5 and A8 beat L.W.4 by name Kamella Venkateswra Rao with sticks inflicting injuries to him. L.Ws.16 to 20 Kanulla Sobanababu, Annavarapu Mutyalu,
Gummadidala Karuna, Kanulla Seshaatnam and Nalluri Jyothi witnessed the incident.
iii) On receipt of hospital intimation, SHO, OPPS, Government hospital, Gudivada by name B.Venkateswra Rao (L.W.25) recorded the statement of the de-facto complainant Kanulla Swamy ( L.W.1) and forwarded the same to SHO, Gudivada Taluq police station on the point of jurisdiction. Thereupon, HC 1230 registered the statement of the de-facto complainant as FIR under sections 307, 324 r/w.34 IPC on 28.12.2014. SI of police took up investigation, inspected the scene of offence in the presence of mediators, seized six sticks (Thatipellu) from the scene of offence under the cover of observation report on 29.12.2014 at 8.00 A.M., prepared a rough sketch of the scene of 4 offence, examined the witnesses and recorded their statements, arrested A1 to A5 and A8 on 31.12.2014 and sent them for judicial custody and he also arrested the remaining accused i.e., A6, A7, A9 to A.12 on 07.01.2015 and sent them for judicial custody. The Doctor treated the injured and opined that the injuries sustained by L.Ws.1 and 3 Kamerla Swamy and Kamerla Srinivasa Rao are simple and the injuries sustained by L.W.2 K.Veera Venkateswara Rao are grievous in nature. L.W.24 Dr.M.V.Nagabhushanam, Metro hospital, Vijayawada who treated L.W.4 Kanulla Venkateswara Rao opined that the injuries sustained by him are grievous in nature and, therefore, section of law is altered to 326 IPC and altered FIR was given under 307, 326 r/w.34 IPC. After completion of investigation he filed charge in the
Court of Additional Judicial Magistrate of First Class, Gudivada.
3. The Court of Additional Judicial Magistrate of First Class,
Gudivada took cognizance against accused 1 to 12 under sections 307 and 324 r/w.34 IPC and the case was registered as PRC.No.55/2015 on its file and by the committal order dt.1.10.2015, the case was committed to the Honourable court of Sessions. Copies of all documents were furnished to the accused as required under Sec.207
Cr.P.C. Later the learned Magistrate committed the said case to the
Hon’ble District and Sessions Court, Krishna, Machilipatnam as the
offence under section 307 IPC, is exclusively tribal by the Court of
Sessions.
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4.The Hon’ble District and Sessions Court, Krishna,
Machilipatnam registered the above said case as S.C.No.398/2015 and made over the same to this court for disposal according to law.
5.After receiving the case record, this court issued summons to the accused. On appearance of A1 to A12 and after hearing on both sides, this court framed charges under section 149
IPC, under section 307 r/w.149 IPC, under section 324 r/w.149 IPC and under section 326 r/w.149 IPC against all the accused persons and read over and explained the said charges to all the accused persons, for which they pleaded not guilty and claimed to be tried.
6.During the course of trial, prosecution examined 20 witnesses as P.Ws. 1 to 20 and marked Exs.P.1 to P.13, Mos.1 to 6 on its behalf. Exs.D.1 to D6 contradictions are marked by the accused persons. Learned APP has given up the evidence of L.W.5/ Kanulla
Siva Parvathi, L.W.7/Kanulla Sitamma, L.W.12/Kanulla Parvathi,
L.W.15/KanullaMallewari,L.W.18/GummadidalaKaruna,
L.W.20/Nalluri Jhyothi, L.W.22/Vemulamada Satish Kumar,
L.W.24/Dr.M.V.Nagabhushanam and L.W.25/B.Venkateswara Rao, ASI.
7.After closure of the prosecution evidence, all the accused persons were examined under section 313 Cr.P.C and the incriminating material appearing on prosecution evidence was read over and explained to them in Telugu, for which they denied the incriminating circumstances appearing against them and the accused persons did not adduce any defence evidence.
8.Heard the learned Special Public Prosecutor and learned counsel for the accused persons.
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9.Now the point for consideration is whether the prosecution has established the guilt of accused persons under sections 307, 326 and 324 r/w.149 IPC beyond all reasonable doubt?
POINT:
10.The contention of the learned Spl.APP is that in the present case P.Ws.1 to 4 are the injured persons, and that the evidence of P.Ws.1 to 11 is quite consistent to the effect that all the accused persons beat P.Ws.1 to 4 with Palmyra sticks which are marked as Mos.1 to 6. He further contended that P.Ws.5 to 7 are the eye witnesses and they are the relatives of P.Ws.1 to 3, whereas
P.Ws.8 to 11 are independent witnesses, and that relying on their evidence, this court can straight away come to the conclusion that all the accused persons formed into an unlawful assembly with a common object to kill P.Ws.1 to 3 and in furtherance of their common object, they beat P.Ws. 1 to 4 with Palmyra stout sticks causing injuries to them. It is further contended that Exs.D1 to D3 are not material contradictions. He also contended that P.W.3 is admitted in a private eye hospital at Vijayawada and he lost his left eye. It is also contended that P.Ws.2 to 4 sustained grievous injuries in the present case. It is also contended by him that P.W.3 underwent several surgeries in private hospital , Vijayawada, and that the overall evidence of the prosecution witnesses coupled with the documents produced by the prosecution would establish the guilt of the accused persons for the offence with which they are charged and, therefore, all the accused are liable for conviction.
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11. On the other hand, the contention of the learned counsel appearing for the accused persons is that in the present case the observation report and rough sketch which are marked Exs.P.4 and
P.12 are the crucial documents, and that there are no houses of witnesses near the scene of offence as per Exs.P.4 and P.12. It is further contended that as per Ex.P.12, the house of P.W.3 is not situated infront of the house of the accused and, therefore, it is clear that the prosecution witnesses are the aggressors in the present case. He also contended that since the prosecution witnesses, who are P.Ws. 1 to 11 are the aggressors, the accused persons in the present case are entitled to acquittal on the ground of private defence. It is also contended that the President of the village who is the crucial witness is not examined by the prosecution and that
P.W.12 deposed that both parties pelted Palmyra sticks against each other and this circumstance shows that there is a free fight between the parties. It is further contended that there is a land dispute between the accused party and prosecution witnesses and, therefore, prosecution witnesses grew wild against the accused persons and started attacking the accused persons and in that connections the accused persons warded the blows given by the prosecution witnesses and, therefore, they are entitled to the right of private defense in the present case. He further contended that P.Ws. 1 to 11 are the accused in CC.577/2015, which is the counter case and, therefore, their evidence cannot be taken into consideration. He also contended that no other independent witnesses were examined by the prosecution, and that P.Ws. 12 to 14, who are said to be the eye 8 witnesses did not support the case of prosecution. It is also contended that as seen from the medical evidence, it is clear that none of the injuries are tallied on the persons of P.Ws.1 to 4 and that there is no evidence on record that P.W.3 sustained any damage to his left eye as contended by the learned Spl.APP and in fact, no injury was received by P.W.3 on his left eye in the course of incident, which is revealed from the medical evidence. He further contended that the presence of P.W.4 was not at all spoken to by P.W.1 in Ex.P.1-first information given by him. It is also contended that when the prosecution witnesses attacked the accused persons, they pushed the prosecution witnesses aside in order to ward the blows given by them and in that connection, P.Ws.1 to 4 sustained injuries and hence, under the right of private defence, all the accused persons are entitled to acquittal.
12. In reply, the learned Spl.APP contended that the right of private defence is not at all applicable in the present case because no such plea was taken by the accused persons during the course of cross examination and only for the first time such submission was made before the court. It is further contended by him that all the citations relied on by the learned counsel for the accused are not applicable in the present case and the accused persons are liable for conviction.
13. Before appreciating the rival contentions, it is necessary to refer to the list of prosecution witnesses, the documents marked, the contradictions marked and also the material objects marked in the case. P.Ws. 1 to 4 are said to be the injured persons. P.W.5 is the 9 wife of P.W.3, P.W.6 is the son of P.W.4, P.W.7 is the son of P.W.1 and
Pws.8 to 11 are said to be the independent eye witnesses. P.W.12 is not an eye witness to the incident according to his evidence. P.Ws.13 and 14 did not support the case of prosecution and they turned hostile to the case of prosecution. P.W.15 is the VRO who is said to be a panch witness to the mediators’ report which is marked as Ex.P.4.
He deposed that in his presence police seized six Palmyra sticks which are marked as Mos.1 to 6. P.W.16 is the doctor, who examined P.Ws.
1 to 3, P.W.17 is the doctor who examined P.W.4, P.W.18 is the doctor from L.V.Prasad Eye Institute Vijayawada, who gave evidence regarding surgeries underwent by P.W.3 for his left eye. P.W.19 is the
Head Constable, who received Ex.P.1 statement of P.W.1 recorded by
D.Venkateswara Rao, ASI 1942, who worked as SHO, OPPS
Government hospital, Gudivada and who was no more by the date of giving evidence. P.W.2 is the Investigating Officer.
14. Ex.P.1 is the First Information given by P.W.1 to the SHO,
OPPS, Government Hospital, Gudivada. Exs.P.2 and P.3 are the marked portions of 161 Cr.P.C statements of P.W.13 and P.W.14 respectively. Ex.P.4 is the mediators report, Ex.P.5 is the intimation to police. Exs.P.6 to P.8 are the wound certificates of P.Ws. 1 to 3 respectively. Ex.P.9 is the wound certificate of P.W.4. Ex.P.10 is the discharge summary of P.W.3. Ex.P.11 is the FIR. Ex.P.12 is the rough sketch and Ex.P.13 is a bunch 09 photographs. Ex.D.1 is the marked portion in 161 Cr.P.C statement of P.W.4. Ex.D.2 is the marked portion in 161 Cr.P.C statement of P.W.6. Ex.D.3 is the marked portion in 161 Cr.P.C statement of P.W.10. Ex.D.4 is the marked 10 portion in 161 Cr.P.C statement of P.W.12. Ex.D.5 is a certified copy of FIR pertaining to CC.No.577/2015. Ex.D.6 is a certified copy of charge sheet in CC.577/2015. M.Os.1 to 6 are Palmyra sticks that are said to be used in the commission of offence by accused persons.
15. Before going into the evidence part, it is necessary to look into Ex.P.1, which is the first information given by P.W.1 to police regarding the manner in which the incident took place and also injuries received by the prosecution witnesses. Ex.P.1 is the statement of P.W.1 recorded by B.Venkaeswara Rao, ASI, OPPS,
Government Area hospital, Gudivada on 28.12.2014 between 10.30
P.M., and 11.00 P.M., in Government Area Hospital, Gudivada. In
Ex.P.1 it is the earliest version of P.W.1 that A1 and A2 were placing earth/clay used for preparation of pots in front of the house of P.W.3, for the last 10 days and since then they were complaining the same to the village President directing A1 and A2 to remove the said clay.
It is also stated in Ex.P.1 that on 28.12.2014 at about 7.30 P.M., A1 in an intoxicated state started abusing the mother of P.W.1 on the ground that they complained to the village President and in the meantime P.Ws. 1 and 2 questioned A1 as to why he was abusing the mother of P.W.1, and then A1 started abusing P.Ws.1 and 2, stating that even on the previous occasion also they complained against A1 to the village President regarding tying of knives to hen. It is also stated in Ex.P.1 that in the meanwhile A2, A3 and A9 came there armed with palmyrah stout sticks and started beating P.Ws.1 and 2 and in the meanwhile P.W.3 intervened, and then A1 and other accused i.e., A4, A5, A7, A8, A10, A11 and A.12 came there armed 11 with palmyrah sticks and started beating P.Ws.2 and 3. Then P.Ws.2 and 3 fell down unconscious. It is also stated that P.W.6, 12 and 13 and others came there and then those accused persons scolded them. It is also stated in Ex.P.1 that all of them with an intention to kill them, beat with palmyrah sticks. It is also stated in Ex.P.1 that thereafter P.W.5 shifted them to Government hospital, Gudivada. It is further stated in Ex.P.1 that P.W.1 sustained a bleeding injury on the back side of his head and left temple. He also received injuries on the fingers of both hands, right thigh and left shoulder. It is further stated that P.W.3 received a bleeding injury on his nose and a swelling injury around his left eye and P.W.2 received a bleeding injury on his head and nose and a swelling injury on his left shoulder, and that P.Ws. 2 and 3 were shifted to Vijayawada hospital. In the background of these ingredients in Ex.P.1, the evidence of prosecution witnesses is to be looked into and appreciated.
16. On a perusal of Ex.P.1, there is no whisper regarding the presence of P.W.4 and receiving of any injury by P.W.4. Thus, in the first information given by P.W.1, he did not speak anything about the presence of P.W.4 and injuries received by him. Coming to his evidence, P.W.1 deposed the same manner in which the incident took place, as stated in Ex.P.1. However, he added that when A2, A3 and
A9 were beating him and P.W.2 with palmyrah sticks, P.W.3 intervened and then all the accused persons came there and all of them beat P.Ws.1 to 3, and then P.W.4 came to their rescue and then all the accused persons beat P.W.4 with palmyrah sticks and all of them beat P.Ws.1 to 4 indiscriminately. He further deposed that 12
P.Ws.2 and 3 fell down unconsciously and P.W.4 sustained a fracture on his left elbow and sustained bleeding injury on the right side of his head and left side of his ribs. Thus according to P.W.1, initially A2, A3 and A9 beat P.Ws.1 and 2 and, thereafter, when P.Ws.3 and 4 intervened all the accused persons beat all of them.
17. P.W.2 deposed that A.1 and A2 dumped earth in front of the house of P.W.3 and in that connection on 28.12.2014 at about 7.30
P.M., A1 came to the house of P.W.3 in a drunken state and started abusing the wife of P.W.2 and when they questioned, A2, A3, A5, A8 and A9 came there and all of them beat P.Ws.1 and 2 uttering that
P.Ws.1 and 2 must be killed. It is also deposed that they beat them with palmyrah sticks. It is also deposed that when P.W.3 intervened,
A4, A5, A6, A7, A10, A11 and A12 beat P.Ws.1 to 3 with palmyrah stout sticks, and then P.W.4 intervened and then all the accused persons started beating P.W.4 stating that he should be killed. He deposed that himself and P.W.3 fell down unconscious and P.W.4 received a fracture injury on his left elbow.
18. P.W.3 deposed that when P.Ws. 1 and 2 questioned A1 and advised to settle the matter before the elders, A1 abused him in filthy language and then A2, A3 and A9 came there, picked up palmyrah sticks and started beating P.Ws.1 and 2 and thereupon he intervened and then they beat him with palmyra sticks and he lost his eye. He further deposed that P.W.4 also received injuries on his left elbow, and that all the accused persons beat them indiscriminately with palmyrah sticks.
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19. P.W.4 deposed that on 28.12.2014 at about 7.30 P.M., P.Ws.
1 to 3 on one hand and A1 to A3, A5 and A9 on the other hand were quarreling with each other and then A1 to A3, A5 and A9 beat P.Ws. 1 to 3 with palmyrah sticks and when he intervened, A2 and A5 beat him also with palmyrah sticks on his left elbow causing fracture injury and A8 beat him on the left side of his abdomen, A3 beat him on his head with palmyrah stick and thereafter he was shifted to hospital. Thus, all P.Ws.1 to 4 deposed the manner in which they received injuries and except P.W.1, P.Ws.2 to 4 deposed regarding the overt acts of the each accused persons who beat them.
20. P.W.2 specifically deposed that A2 beat him caused bleeding injury on his head, and A3 beat him causing a bleeding injury on his nose and A4 and A8 beat him on his left shoulder.
21. P.W.5 is said to be an eye witness and she deposed that A1 to A3 and A9 beat P.Ws.1 and 2 initially with palmyrah sticks and when P.W.3 intervened, A1 to A3 and A9 beat P.W.3 also with palmyra sticks, and when P.W.4 intervened they beat him also with palmyra sticks. She deposed that P.Ws.1 to 3 fell unconscious due to the injuries. She also deposed that they also uttered that P.Ws.1 to 3 should be killed and then she shifted the injured persons to
Government hospital, Gudivada.
22. P.W.6 to 8 deposed that A1 to A3 and A9 beat P.Ws.1 and 2 initially and when P.W.3 intervened, all the accused persons beat
P.W.3 also with palmyrah sticks, and that when P.W.4 intervened all the accused persons beat P.W.4 with palmyrah sticks.
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23. P.W.9 deposed that A1 to A3 and A9 started beating P.Ws.1 to 4 with palmyrah sticks with an intention to kill them, and that
P.Ws. 2 and 3 fell down unconscious due to the injuries received by them. He also deposed that then all the accused beat them indiscriminately. Here it is necessary to mention that the
Investigating Officer, who is examined as PW.20, has deposed that
PWs.6 to 9 did not state before him that all the accused persons beat
PWs.1 to 4. P.Ws.10 and 11 deposed that A.1 to A.3 and A9 beat
PWs.1 to 4.
24. P.W.12 is not an eye witness as per his evidence. He deposed that when he was in his house, he heard some commotion near the house of P.W.3 and immediately, he rushed to the spot and by the time he went there, P.Ws. 1 to 3 fell down with bleeding injuries and thereafter P.Ws.1 to 3 were shifted to Government hospital, Gudivada. Thus, according to his evidence, he is not an eye witness to the incident. However, during his cross examination, he admitted that he stated before police that the accused party and
P.Ws. 1 to 11 on the other side pelted palmyrah sticks against each other. He denied to have stated before police as in Ex.D.4 that both parties received injuries in the incident. P.Ws.13 and 14 did not support the case of prosecution and they turned hostile to the case of prosecution.
25. Now the fact remains that accused persons beat P.Ws.1 to 4 because the fact that P.Ws.1 to 4 received injuries in the incident is not denied by the accused persons because it is their case during the course of arguments that as the prosecution witnesses who are 15
P.Ws.1 to 12 started beating the accused party, they pushed them aside and, therefore, they received the injuries and they pushed the accused party under the right of private defence. Therefore, the presence of all the accused persons and P.Ws.1 to 4 at the scene of offence is not denied or disputed in the present case.
26. According to P.W.1, he received a bleeding injury on the back side of head, left side temple region, all the fingers of hands, right thigh, left shoulder and swelling of left shoulder. In this connection the evidence of P.W.6, coupled with Ex.P.6 is to be looked into. Ex.P.6 is the wound certificate given by P.W.16 in respect of the injuries on the person of P.W.1 at the time of his examination. P.W.16 deposed that he examined P.W.1 at about 10.40 PM on that day and found a wound consisting of 08 sutures on the occipital region and another wound consisting of 3 sutures on the left temple. He also deposed that he himself treated P.W.1 and sutured the wounds and those injuries are simple in nature, and he issued wound certificate, which is marked as Ex.P.6. On a perusal of Ex.P.6, it is clear that the other injuries spoken to by P.W.1, i.e., injuries on all the fingers of both hand, right thigh, left shoulder and swelling of left shoulder are not at all visible and they are not spoken to by P.W.16. According to
P.W.16 and Ex.P.6 there are only two injuries received by P.W.1 on the occipital region and left temple which are simple in nature according to P.W.16. Therefore, the other evidence of P.W.1 regarding the other injuries cannot be taken into consideration and cannot be believed because they are not supported by medical evidence.
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27. According to P.W.2, he deposed that he received a bleeding injury on his head in the hands of A2, and another bleeding injury on his nose in the hands of A3 and dislocation of left shoulder due to the blows given by A4 and A8. Coming to Ex.P.7 wound certificate pertaining to P.W.2 and the evidence of P.W.16 in that regard, P.W.16 deposed that he examined P.W.2 at the same time i.e., 10.45P.M., and found incised wound 3 cm x 3 cm on the frontal region and dislocation of shoulder and an abrasion on nose. However, as seen from the cross examination of P.W.2 and the evidence of
Investigating Officer, who is examined as P.W.20, it is quite clear that
P.W.2 did not state before the Investigating Officer regarding the blows given by A4 and A8 due to which his left shoulder was dislocated. However, the medical evidence shows that there is an injury and dislocation of P.W.2. According to P.W.16 the said injury is grievous in nature and the other injuries are simple in nature.
28. Coming to the evidence of P.W.3, according to his version
A2, A3 and A9 beat him due to which he lost his eye and he further deposed that all the accused beat all of them indiscriminately. But, coming to the evidence of P.W.16 and Ex.P.8 wound certificate pertaining to P.W.3, P.W.16 deposed that he found a contusion on fore head of P.W.3 and another contusion on nose. It is also deposed by him that nose bleeding was present, and that all the injuries are simple in nature and accordingly he issued Ex.P.8 wound certificate.
Thus, there is no whisper in the evidence of P.W.16 that he found any injury on the left eye of P.W.3. Ex.P.8 also does not show that P.W.3 received any injury on his left eye in the incident. It is further 17 necessary to mention here that Exs.P.6 to P.8 do not whisper the age of the injury. However, the incident is not denied or disputed by the accused persons. Therefore, all the injuries spoken to by P.W.16 are said to have been received by P.Ws. 1 to 3 in the incident in question.
29. P.W.3 deposed that he was shifted to Guntur hospital for better treatment. But, he did not depose that he was shifted to private hospital Vijayawada and he underwent any surgeries in the said hospital. Surprisingly, during the course of evidence, the prosecution has produced Ex.P.10 discharge summary given by
Sarojini Devi Eye hospital and examined P.W.18 Dr.Sameera Nayak from L.V.Prasad eye institute Vijayawada. P.W.18 deposed that on 20.04.2015, he examined P.W.3 and he had a history of injuries 3 to 4 months ago in his left eye and the details of injuries were not available. He further deposed that he had less vision in the left eye 20/200 and he had open gobe injury, penetrating type involving multiple zones and he had corneal scar, phacodonosis, iridonosis,
Vitreous in anterior chambers, traumatic cataract, retina detachment, macula off, and that a surgery was conducted to his left on 29.04.2015 and another surgery on 19.05.2015. He also deposed that he also conducted another surgery on 1.10.2015. It is further deposed that he was admitted on 21.04.2015 at 10.00a.m., and he was discharged on 29.04.2015 at 10.00 A.M., and that he issued a discharge summary dt.9.11.2019, which is marked as Ex.P.10. He also deposed that Ex.P.10 was signed by his college by name
Dr.Vishal Rawal on his behalf. Coming to his cross examination, he admitted that P.W.3 did not produce any previous medical record 18
before him. He further deposed that it is difficult to say the exact age
of injury of P.W.3 by the time of his examination. He denied the suggestion put to him that he issued Ex.P.10 discharge summary at the request of P.W.3 without examining him. In view of this evidence of P.W.18 coupled with Ex.P.10, there is no nexus between the said injury with the incident in question. When P.W.3 was initially examined by the doctor at Government hospital, Gudivada, who is examined as P.W.16, P.W.16 did not find any injury on the left eye of
P.W.3. If really there was an injury in the left eye of P.W.3, P.W.16 would have definitely mentioned the same in Ex.P.8 wound certificate.
But, there is no whisper about the said injury when he was initially examined by P.W.16 in Government hospital, Gudivada. Even as seen from the evidence of PW.18 and Ex.P.10, there is no whisper that the said injury was received by PW.3 in the incident in question. After a long time of the incident, he underwent surgeries and prosecution failed to connect the same with the incident in question. Therefore, unless it is established by the prosecution that the injury deposed by
P.W.18 which is found in Ex.P.10 was received by P.W.3 in the incident in question, the same cannot be connected to the present incident and accused persons cannot be fastened with any liability for receiving the said injury by P.W.3. Hence, the above injury to the left eye of P.W.3 is not established by the prosecution that the said injury was received by P.W.3 in the commission of offence by the accused persons.
30. According to P.W.4, he received an injury on his left elbow due to the blows given by A2 and A5 and he also received another 19 injury on the left side of abdomen in the hands of A.8 and head injury in the hands of A3. He was examined by P.W.17 and he deposed that he found one external injury over left forearm, injury over left side of abdomen and injury over right thumb of P.W.4 and accordingly he issued Ex.P.9 wound certificate. He further deposed that injuries 2 and 3 are simple in nature whereas injury No.1 is grievous in nature because there is a fracture of left ulna in left forearm. Thus, according to P.W.4 the said grievous injury was received by him in the hands of A2 and A5. The doctor also found injuries over left side of abdomen and right thumb, both the injuries are simple in nature. No injury on the head of P.W.4 is found by doctor as deposed by P.W.4.
Thus, the injuries in the hands of A2, A5 and A8 are supported by medical evidence as far as the injuries on the person of P.W.4.
31. In the evidence, Exs.D1 to D3 contradictions were marked by the accused during the evidence of P.Ws.4, 6 and 10 respectively.
It is suggested to P.W.4 that he did not state before the police that accused persons beat them due to the land disputes between them and P.Ws.1 to 3. The said contradiction is marked as Ex.D.1.
However, the same is elicited during the cross examination of
Investigating Officer who is examined as P.W.20 and P.W.20 deposed that P.W.4 stated before him as in Ex.D.1. In fact, the accused persons could elicit that there was a land dispute between the accused party and P.Ws. 1 to 3 on the other side. Coming to P.W.6, a suggestion was given that he stated before the police that there is a dispute between the family of the accused and family of P.Ws. 1 to 3 regarding a vacant site in front of their house, which is denied by 20
P.W.6 and the said contradiction is marked as Ex.D.2. P.W.20 deposed that P.W.6 deposed as in Ex.D.2. Likewise a suggestion was given to
P.W.10 that there is a land dispute between the accused party and
P.Ws.1 to 3. The Investigating Officer deposed that P.W.10 deposed as in Ex.D.3. Thus, the fact remains that there is a land dispute between the parties. However, the said contradictions under Exs.D.1 to D3 are not at all material contradictions, because whatever is the reason, the incident took place and P.Ws. 1 to 4 received injuries in the said incident.
32. A suggestion was given to P.W.12 that he stated before police that the persons of both sides received injuries. But, P.W.12 denied to have stated so before police. The said contradiction is marked as Ex.D.4. However, P.W.20 Investigating Officer deposed that P.W.12 deposed as in Ex.D.4. Thus, in view of Ex.D.4 contradiction which is proved by the accused through Investigating
Officer, it is quite clear that both parties entered into free fight in the street. Therefore, it is quite clear that both parties pelted palmyrah sticks against each other causing injuries to the persons. Therefore, question of right of private defence to the accused persons does not arise in the present case. Moreover, as rightly contended by the learned APP, not even a single suggestion was given to any prosecution witnesses that out of private defence, accused persons beat P.Ws. 1 to 4.
33. The main contention of the accused persons is that as seen from Ex.P.4 scene observation report and Ex.P.12 rough sketch, the house of P.W.3 is not situated in front of the house of A1 and, 21 therefore, it is quite clear that the prosecution witnesses came to the house of accused and started beating the accused party and then accused party in the right of private defence pushed the prosecution witnesses and in that connection P.Ws.1 to 4 received injuries and thus the prosecution witnesses are the aggressors. This contention cannot be accepted. It is no doubt true that as seen from Ex.P.12, rough sketch, it is not specifically mentioned that the house of P.W.3 is in front of the house of A.1. But, the said house admittedly belongs to Kanulla family. P.W.3 is Kanulla Srinivasa Rao. Right from the beginning, the case of the prosecution is that the accused persons started dumping the clay in front of the house of P.W.3 and, therefore, P.Ws. 1 to 3 reported the same to the village President. It is no doubt true that the village President is not examined in the present case. However, on a perusal of Ex.P.12 there is a heap of clay/earth noticed by the Investigating Officer. Therefore, the fact remains that the houses of A1 and P.W.3 are situated opposite to one and other and when the accused persons started dumping the earth causing hindrance to the right of way, P.W.3 has complained the same to the village President and in that connection the disputes arose between the parties. Moreover, even according to the case of accused persons, there is a previous dispute regarding a site between the parties. Therefore, both the parties are in logger heads even as per the circumstances. Since both the parties entered into free fight against each other, question of right of private defence does not arise in the present case because no such suggestion was also given to the prosecution witnesses by the accused persons. On the other hand, it 22 clearly shows that the accused party provoked the prosecution witnesses and they themselves attached PWs.1 to 4 and therefore, they are the aggressors.
34. The next contention of the learned counsel for the accused persons is that the overt acts are not specifically spoken to by P.W.1 and other overt acts spoken to by P.Ws.2 to 4 are not proved and, therefore, accused persons are entitled to acquittal. This contention also cannot be accepted. When a free fight is taken place between two groups, it is very difficult to remember the persons who beat the each injured particularly when more people are involved in the incident. Therefore, in such circumstances, one cannot remember the each blow given by each accused and there may be variation in giving the particulars regarding overt acts. But the fact remains that P.Ws. 1 to 4 received injuries in the hands of accused persons.
35. The other contention of the learned counsel for the accused is that the presence of P.W.4 is not at all spoken to by P.W.1 in Ex.P.1 which is the earliest version of P.W.1 and, therefore, the injuries received by P.W.4 are not connected to the incident. This particular contention cannot be accepted, particularly in view of the suggestions given by the accused persons to P.W.4. A suggestion was given to
P.W.4 that they themselves attacked the accused persons and he never went to the rescue of P.Ws. 1 to 3 and the accused persons never beat him. In view of the said suggestion given to P.W.4, it is quite clear that the accused persons have admitted the presence of
P.W.4 at the scene of offence. Therefore, it is quite clear that P.Ws. 2 and 4 received grievous injuries whereas P.Ws.1 and 3 received 23 simple injuries according to the evidence on record. As already stated above, the evidence of P.W.18 and Ex.P.10 are not at all connected to the incident in question because the said injury reported by P.W.18 is not noticed by P.W.16 at the time of examination of P.W.3 in
Government hospital, Gudivada.
36. The next question is whether the ingredients of section 307
IPC are attracted or not. Here it is necessary to mention the analysis of section 307 which deals with attempt to murder. In section 307 IPC a lot of weightage has been given to the intention and the knowledge of the accused and also the preparation that the accused takes before committing the crime. Section 307 IPC is a very interesting section in the sense that it has lots of similarities with sections 324, 325 and 326 IPC. Sometimes it is very difficult to differentiate between the cases under sections 307 IPC and the cases under sections 324, 325 and 326 IPC because all these offences have some common ingredients among themselves. The main ingredients under section 307 IPC are (i) the act attempted should be of such a nature that if not prevented or intercepted it would lead to the death of the victim as observed in Indian Penal Code by Ratanlal and Dheerajlal, (ii) the intention or mens rea to kill needs to be proved without doubt and for this purpose the prosecution can make use of circumstances like attack by dangerous weapons on vital parts of the body. However, the intention to kill cannot be gauged simply by the seriousness of the injuries caused, as held in Sarju Prasad vs. State of Bihar(AIR 1965 SC 843) and (iii) the intention and the knowledge of the result 24 of the act being done is the main thing that is needed to be proved for conviction under section 307 IPC.
37. Thus, for conviction under section 307 IPC more importance has been given to mens rea or the intention than the actual act itself. The attempt should rise out of a specific intention or desire to murder the victim. The nature of the weapon used, the manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are all to be taken into consideration and would determine the intention, as held in
Harikishan vs. Sukhbir Singh (AIR 1988 SC 2127). Therefore, in view of the above analysis and case law, it has to be seen whether the prosecution has established the ingredients of section 307 IPC in the present case and whether the prosecution has established that accused committed the offence that too with an intention to kill
P.Ws.1 to 4, beyond doubt in the present case to fasten the accused with the offence under section 307 IPC.
38. Ex.P.1 which is the earliest version of P.W.1 regarding the manner in which the incident took place. The motive of the accused for attacking P.Ws.1 to 4, is to be looked into to gather whether there is any intention on the part of the accused persons to kill P.Ws.1 to 4.
In Ex.P.1, it is mentioned that as P.Ws.1 and 2 complained against A1 for dumping the clay in front of the house of P.W.3, accused persons attacked P.Ws.1 to 4 and others. It was also mentioned in Ex.P.1 that even on the earlier occasion also, P.Ws. 1 and 2 complained to the
Village President about tying of knives to the hen. Thus, it can be gathered from Ex.P.1 complaint that only for those reasons, the 25 accused persons beat P.Ws.1 to 4 with M.Os.1 to 6. However, there is a stray sentence in Ex.P.1 that all the accused persons attacked
P.Ws.1 to 4 with an intention to kill them. But, the simple sentence in
Ex.P.1 itself is not sufficient to prove the intention of the accused to kill P.Ws.1 to 4. In this connection, the evidence is to be looked into.
39. P.W.1 did not state anything in his evidence that all the accused persons beat them with an intention to kill them. Though, it is stated in Ex.P.1 by P.W.1 that all the accused persons attacked them intending to kill them, not even a single sentence was spoken to by P.W.1 in his evidence in his deposition. P.W.2 for the first time stated in his chief examination that A2, A3, A5, A8 and A9 came there and beat him and P.W.1 stating “champandi nakodukulanu”. He further stated that when P.W.4 intervened, all the accused persons stated that P.W.4 should also be killed stating “nakodukulani champandira”. But, Ex.P.1 complaint is silent with regard to uttering those words by the accused persons at the time of commission of offence.
40. P.W.3 did not depose that all the accused persons beat them with an intention to kill them. P.W.4 also did not state that with an intention to kill them all the accused persons beat them. P.Ws.6 to 11 deposed that A1 to A3 and A9 started beating P.Ws.1 to 4 with an intention to kill them. But, as already stated above, mere statement by the witnesses that accused persons beat them with an intention to kill them is not sufficient without proving the intention to kill on the part of the accused persons. In the present case, though a free fight has taken place between the two groups, the injuries sustained by 26
P.Ws.1 to 4 would not lead to the death of the persons, if the accused persons are not prevented from giving such blows. Therefore, the injuries sustained by P.Ws.1 to 4 are not of such an extent that they would lead to their death if not prevented or intercepted. Though it is deposed by P.W.1 in his cross examination that himself and other injured persons sustained bleeding injuries due to which their shirts were stained with blood, and the earth was also stained with blood at the scene of offence, as seen from the evidence of the Investigating
Officer, who is examined as P.W.20, it is quite clear that no blood stains were noticed by him at the scene of offence and no blood stained cloths are seized by police. Moreover, there is a rivalry between the two groups since long time and when there is such rivalry against each other, the burden is heavy on the prosecution to prove the intention to kill on the part of the accused. Therefore, merely for the reason that the witnesses stated that the accused intended to kill them, this court cannot come to the conclusion that there is such an intention/mens rea on the part of the accused persons to kill P.Ws.1 to 4. In the present case, mens rea is lacking on the part of the accused persons and the same is not proved by the prosecution beyond reasonable doubt to attract section 307 IPC. It is no doubt true that basing on the injuries sustained by the injured persons, the intention to kill cannot be gauged, but in view of the fact that there is a rivalry between the parties since long time and both the groups are at logger heads, the burden is heavy on the prosecution to prove mens rea on the part of the accused persons to kill P.Ws.1 to 4, because there is every possibility of speaking 27 falsehood by the witnesses by exaggerating the incident in order to fasten the accused with higher offence. Therefore, merely there is a stray sentence in Ex.P.1 that all the accused persons beat with an intention to kill P.Ws.1 to 4, this court cannot come to the conclusion that there is mens rea on the part of the accused persons to kill
P.Ws.1 to 4 unless the same is established by the prosecution. In the present case, prosecution has failed to establish the main ingredients of mens rea on the part of the accused persons to kill P.Ws.1 to 4 and, therefore, in the humble opinion of this court, the ingredients of section 307 IPC are not made out in the present case.
41. The next question is whether the ingredients of section 149
IPC are made out against the accused persons. It is quite evident from the above discussion and evidence on record, that all the accused persons gathered at the scene of offence and according to the evidence of P.Ws.1 to 11, all the accused persons participated in the commission of offence with a common object to cause injuries to
P.Ws.1 to 4. According to section 141 IPC, an assembly of five or more persons is designated as unlawful assembly with a common object of persons composing that assembly is to commit any offence.
In the present case, there is an abundant material on record to show that all the accused persons participated in unlawful assembly with the common object of causing injuries to P.Ws.1 to 4. In fact, the presence of all the accused persons at the scene of offence is not denied or disputed by the accused in any manner and even according to the case of the accused persons, both groups entered into fight in the street and have thrown palmyrah sticks against each other 28 causing injuries. In fact, a suggestion was given to P.W.4 by the accused persons that the prosecution party attacked the accused persons. The accused persons also elicited a contradiction under
Ex.D.4 through P.W.12 that he stated before police that both parties received injuries. In fact, P.W.12 clearly deposed that he stated
before police that the accused party and P.Ws.1 to 11 on the other
side pelted palmyrah sticks against each other. The same is not denied or disputed. Thus, it is quite clear that with a common object to cause hurt/grievous hurt to P.Ws.1 to 4 and other prosecution witnesses, all the accused persons, formed themselves into an unlawful assembly and in furtherance of their common object, they attacked P.Ws.1 to 4. Therefore, the ingredients of section 149 IPC are clearly made out in the present case.
42. In the present case, as already noticed above, P.Ws.2 and 4 sustained grievous injuries, whereas P.Ws.1 and 3 received simple injuries. None of the other prosecution witnesses received any injuries in the hands of accused persons. As already pointed out, the evidence of P.W.18 and Ex.P.10 are not helpful to the case of prosecution because the prosecution has failed to prove any nexus between Exs.P.10 and P.8. Therefore, the alleged surgeries underwent by P.W.3 in L.V.Prasad, Eye Institute, Vijayawada cannot be said to be due to the injuries sustained by him in the transaction in question.
This particular observation is made because of the evidence of P.W.16 doctor, who initially examined P.W.3 and gave Ex.P.8 wound certificate wherein he did not notice any injury on his left eye. Moreover, PW.18 clearly deposed that it is difficult to give the age of the said injury of 29
PW.3. Hence, the prosecution has clearly established that all the accused persons are guilty of the offences under sections 326 r/w.149 IPC for causing grievous hurt to P.Ws.2 and 4 and under section 324 r/w.149 IPC for causing simple injuries to P.Ws.1 and 3.
43. Learned counsel for the accused persons relied on Pankaj vs. State of Rajasthan 1and contended that though the motive is not a sine qua non for conviction of the accused, the affect of not proving motive raises a suspicion in the mind, and further contended that in the present case it is clearly deposed by some of the witnesses that the accused persons beat P.Ws.1 to 4 as there is a land dispute between them, which is not the case of prosecution and thus, the motive is not properly proved by the prosecution and hence, the accused are entitled for acquittal. This contention cannot be accepted. In the said decision, it was held by the Hon'ble Supreme
Court that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. But, in the present case, the manner in which the incident took place is not at all doubtful because even according to the accused persons the incident took place. Therefore, when the incident has taken place undoubtedly, in the humble opinion of this court, the reason for such incident even if it varies, is not fatal to the case of prosecution and it will not come to the aid of accused to hold that the commission of offence itself is doubtful. The reason may be due to the land dispute between the parties or due to fact that the prosecution witnesses complained against the accused for dumping clay infront of the house of P.W.3.
12016 SAR (Criminal) 1015 30
But, the fact remains that the incident took place undoubtedly.
Therefore, the said decision is not helpful to the accused.
44. Learned counsel for the accused also relied on Public
Prosecutor, Hyderabad vs. Rangam Subbarayudu 2wherein it was held that when there is a fight against fight, failure of prosecution to come with true version of incident leads to acquittal of the accused.
In the present case, there is no failure of prosecution to come with true facts and in fact, the evidence of Investigating Officer would show that the accused persons also received injuries in the incident.
The facts in the said case are entirely different from the facts on hand and, therefore, the said decision is not applicable to the present case.
45. Learned counsel for the accused also relied on Kuldip
Yadav vs. State of Bihar 3 , wherein it was held that it is the duty of the Investigating Officer to bring to the notice of the trial court about the two FIRs arising out of the incident to avoid gross injustice to the party concerned. In the present case, the Investigating Officer has clearly deposed that there is a counter case against the prosecution witnesses wherein the accused persons also received injuries.
Therefore, the said decision is not applicable to the facts of the present case.
46. Learned counsel for the accused also relied on Vijay Singh vs. State of MP 4 and contended that preparation of site plan is not mere formality, but it is essential feature in order to reach firm conclusion by court, but in the present case as seen from the rough sketch prepared by the Investigating Officer under Ex.P.12, it is clear 22007(1) ALD (Crl.) 1010 ( AP), 32011 (2) ALT (Crl.) 354 SC 42005 Crl.L.J. 299 31 that the house of P.W.3 is not situated in front of the house of A.1 and, therefore, the place of occurrence itself is not correctly mentioned by the prosecution. This contention cannot be accepted.
When taking place of incident is not denied or disputed by the accused persons and on the other hand it is admitted, the said question does not arise and, therefore, the said decision is not applicable to the facts on hand. Moreover, it is the specific evidence of all the prosecution witnesses that the house of P.W.3 is situated opposite to the house of A.1. This court already clarified that the house of Kanulla people is situated opposite to the house of A1, even according to Ex.P.12 rough sketch.
47. Learned counsel for the accused also relied on Ezajhussain
Sabdarhussain and another vs. Satate of Gujarat 5and contended that when there is no meeting of minds to form pre- arranged plan, no scope for drawing presumption of common intention against accused and, therefore, it cannot be said that there is a common object on the part of the accused persons to attack the prosecution witnesses. This contention cannot be accepted. This court already held in the above paragraphs by recording the evidence on record that there is a common object on the part of the accused persons to attack P.Ws.1 to 4 by forming themselves into unlawful assembly and in furtherance thereof they implemented their common object and caused hurt to P.Ws.1 to 4. Therefore, the said decision is not applicable to the present facts.
52019 (2) ALD (Crl.) 83 SC 32
49. Learned counsel for the accused also relied on Konatham
Rama Sastrulu and others vs. State of AP 6. The facts in the said decisions are entirely different from the facts on hand. In the said decision, it is held that the specific overt acts should be evident from the complaint itself and attribution of specific acts cannot be permitted during the course of trial. In the present case, it is not that one party attacked the other party. As already observed, there is a free fight in the street among two groups and all the persons participated in the commission of offence have pelted palmyra sticks against each other. In those circumstances, this court already held that giving the specific overt acts of each accused is not possible.
Thus, the facts in the present case are entirely different and they cannot be applied in the present case.
50. Learned counsel for the accused also relied on Kathi
Odhabhai Bhimabhai and others vs. Sate of Gujarat 7, wherein it was held that absence of external injuries corresponding to injuries to ribs could be due to violent fall also. But, in the present case, it is not the case of the accused persons that P.Ws.2 and 4 have fallen on any blunt object. Merely a suggestion was given that when the prosecution witnesses were attacking the accused persons, the accused have pushed them aside and in that connection P.Ws.2 and 4 sustained injuries. But, that is not established in any manner and on the other hand, it is clearly established that the accused persons beat
P.Ws.1 to 4. Hence, the facts in the said case are entirely different.
62003 (2) ALT (Crl.) 555 ( AP) 71993 CRI.L.J 187 33
51. Learned counsel for the accused also relied on Suresh Pal
and others vs. State of UP 8 , Erlapalli Prakasham vs. State of
AP 9 , Nathi Lal vs. State of UP 10 , P.Johnson vs. State of Kerala 11
and Mitthulal and another vs. State of Madhaya Pradesh 12 . The facts in the said decisions are entirely different from the facts on hand. In Mitthulal case (12 Supra) it was held by the Hon'ble
Supreme Court that evidence recorded in one criminal case cannot be used in the cross case even with the consent of the accused. In the present case, this court is not going to use the evidence recorded in another cross case. All these decisions are not at all connected to the facts of the present case and they are not helpful to the accused persons.
52. It is now contended by the learned counsel for the accused that in the present case, as seen from the evidence of P.W.15 and
P.W.20, it is clear that Mos.1 to 6 were not seized from the scene of offence and they were seized from a heap of palmyra sticks and, therefore, there is no material to show that M.Os.1 to 6 are the weapons used in the commission of offence. As seen from the evidence of P.W.15, he deposed that he noticed a heap of palmyra sticks at the scene of offence, and in his presence police seized six palmyra sticks under the mediators’ report. P.W.20 admitted that the position of Mos.1 to 6 was not shown in Ex.P.12 rough sketch. Thus, it is the contention of the learned counsel for the accused that Mos. 1 to 6 cannot be said to be the weapons used by the accused in the 81981 CAR 177 (SC), 92002 (2) ALT (Crl.) 4 10(1990) SCC (Cri) 638 111998 CRI.L.J.3651 12AIR (1975) SC 149 34 commission of offence, and when no weapons are proved, section 326 IPC is not attracted. This contention cannot be accepted. As seen from the entire evidence on record, both sides pelted palmyra sticks against each other and all the accused persons used palmyra sticks for attacking P.Ws. 1 to 4. It is specifically deposed by P.W.15 that he noticed a heap of palmyra sticks at the scene of offence and police seized Mos.1 to 6 from the scene of offence. Merely, for the reason that the position of Mos.1 to 6 is not noted in Ex.P.12 rough sketch, it cannot be said that Mos.1 to 6 are not at all seized from the scene of offence by the Investigating Officer. There is abundant evidence on record to show that Mos.1 to 6 are used by the accused in the commission of offence. Hence, this court is of the considered opinion that the prosecution has established the guilt of the accused for the offences under sections 326 r/w.149 IPC and 324 r/w.149 IPC against all the accused persons. However, the prosecution has failed to prove the guilt of the accused persons under section 307 r/w.149 IPC. Point is accordingly answered.
53. In the result, all the accused persons are found not guilty for the offence under section 307 r/w.149 IPC and they are acquitted of the said offence under section 235(1) of Cr.P.C. However, all the accused persons are found guilty for the offence under section 326 r/w.149 IPC for causing grievous hurt to P.Ws.2 and 4 and they are also found guilty for the offence under section 324 r/w.34 IPC for causing simple hurt to P.Ws.1 and 3 and accordingly they are convicted for the said offences under section 235 (2) Cr.P.C.
35
Dictated to Stenographer(Gr.III), transcribed by her, corrected
and pronounced by me in the open court, on this 15th day of March, 2021.
Sd/-I.Srinivasa Murthy,
Assistant Sessions Judge, Gudivada.
54. All the accused persons are present and heard regarding sentence. All the accused in one voice stated that they are innocent and they are implicated in the case, and that they are purely depending on their caste profession and if they are sent to jail, their family would be subjected to starvation and, therefore, a lenient view may be taken.
55. Considering the submission made by the accused persons, this court is not inclined to apply the provisions of section 360 Cr.P.C.
or the provisions of PO Act.
56. Considering the totality of circumstances, A1 to A12 are sentenced to suffer simple imprisonment for ONE YEAR each and to pay a fine of Rs.200/- each, in default simple imprisonment for one month each for the offence under section 326 r/w.149 IPC. A1 to
A12 are further sentenced to suffer simple imprisonment for SIX
MONTHS each for the offence under section 324 r/w.149 I PC. Both substantive sentences shall run concurrently.
57. A1 to A5 and A8 are in custody for 13 days from 31.12.2014 to 13.01.2015, whereas A6, A7, A9 to A12 were in custody for 15 days from 07.01.2015 to 22.01.2015. The accused persons are entitled to set off of the above said period as per section 428 Cr.P.C. Mos.1 to 6 shall be sent to the committal court for destruction after appeal time is over.
36
Dictated to Stenographer(Gr.III), transcribed by her, corrected
and pronounced by me in the open court, on this 15th day of March, 2021.
Sd/-I.Srinivasa Murthy,
Assistant Sessions Judge, Gudivada.
APPENDIX OF EVIDENCE
Witness examined for
Prosecution: Defence: P.W.1:K.SwamyNONE P.W.2:K.V.Venkateswara Rao. P.W.3:K.Srinivasa Rao P.W.4:K.Venkateswara Rao P.W.5:K.Lakshmi P.W.6:K.Sivanarayana@ Bujji P.W.7:K.Sivanarayana @ Sivaiah P.W.8:K.Siva Nagaraju P.W.9:K.China Nagaraju P.W.10:K.N.Venkateswara Rao P.W.11:K.Sivaramanjaneyulu@ Buddaiah P.W.12:K.Sobhan Babu P.W.13:A.Mutyalu P.W.14:K.Sesharatnam P.W.15:V.Dasaradhi P.W.16:Dr.Panduranga Prasad P.W.17:P.Sreenivasa Gowtam P.W.18:Dr.Sameer Nayak P.W.19:J.Srinivasa Rao. P.W.20:P.S.V.Subrahmanyam.
Documents marked for
Prosecution:
Ex.P.1:Statement of P.W.1. Ex.P.2:Marked portion of 161 Cr.P.C.statement of P.W.13 Ex.P.3:Marked portion of 161 Cr.P.C.statement of P.W.11 Ex.P.4:Mediators report Ex.P.5:Police intimation Ex.P.6:Wound certificate of P.W.1 Ex.P.7:Wound certificate of P.W.2 Ex.P.8:Wound certificate of P.W.3. Ex.P.9:Wound certificate of P.W.17 Ex.P.10:Discharge summary Ex.P.11:FIR Ex.P.12:Rough sketch Ex.P.13:Nine Photographs with CD.
Defence:
Ex.D.1:Marked portion in 161 Cr.P.C. statement of P.W.4. Ex.D.2:Marked portion in 161 Cr.P.C. statement of P.W.6 Ex.D.3:Marked portion in 161 Cr.P.C. statement of P.W.10 37
Ex.D.4:Marked portion in 161 Cr.P.C. statement of P.W.12. Ex.D.5:Certified copy of FIR. Ex.D.6:Certified copy of charge sheet.
Material Objects: M.Os.1 to 6: Thatipellu (palmyra sticks).
Sd/-I.Srinivasa Murthy,
Assistant Sessions Judge, Gudivada.