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IN THE COURT OF THE ASSISTANT SESSIONS JUDGE: AT NALGONDA
(Dated this the 14th day of February, 2019)
Present: Sri. K.Kalyan Chakravarthy, Assistant Sessions Judge, Nalgonda. -:o0o:-
Sessions Case No. 285 of 2015
(P.R.C.No. 25 of 2012 on the file of Judicial Magistrate of First Class, Deverakonda in Cr.No. 154 of 2011 of Deverakonda P.S.,)
Complainant : S.H.O. P.S. Deverakonda.
Accused :
A1 Shavva Shankar, S/o. Venkatesham, Age: 25 years, Occ: Private job, R/o. near DNT Hostel, Deverakonda.
A2 Shavva Thirupathaiah, S/o. Venkatesham, Age: 45 years, Occ: Watchmen, R/o. Near DNT Hostel, Deverakonda.
A3 Shavva Anjaiah, S/o. Venkatesham, Age: 38 years, Occ: Agril., R/o. near DNT Hostel, Deverakonda. (abated).
A4 Shavva Govardhan, S/o. Venkatesham, Age: 29 years, Occ: Private Teacher, R/o. near DNT Hostel, Deverakonda.
A5 Shavva Sambasivudu, S/o. Venkatesham, Age: 27 yeawrs, Occ: Private job, R/o. near DNT Hostel, Deverakonda.
A6 Gundala Laxmamma, W/o. Yadaiah, Age: 40 years, Occ: House wife, R/o. Muthyalamma bazaar, Deverakonda.
A7 Narayanpet Alivelu, W/o. Raghupathi, Age: 35 years, Occ: House wife, R/o. Sivaji nagar, Deverakonda.
A8 Gundala Siva, S/o. Yadaiah, Age: 22 years, Occ: Gumasth in cloths shop, R/o. Muthyalamma bazaar, Deverakonda.
Prosecution conducted by : Smt. K. Srivani,
Addl. Public Prosecutor.
Accused defended by : Sri. P. Shyam Sunder,
Advocate for the accused.
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Nature of offence : Under Sections 147, 148,452,427,307,324,326 r/w 149 IPC
Plea of accused : Not guilty.
This case is coming on this day before me for final disposal in the presence of Smt. K. Srivani, Asst. Public Prosecutor for the prosecution, and of Sri.P. Shyam Sunder, Advocate for the accused; having stood over for consideration, the Court delivered the following:
J U D G M E N T
1.The S.I. of Deverakonda P.S. filed charge sheet against Accused No.1 to
Accused No. 8 in Cr. No. 154/2011 for the offence punishable U/Sec. 307, 326, 324, 452 and 427 r/w 149 of IPC and Section 147 and 148 IPC.
2.Case of the prosecution in brief is:
Lw-1/ Shavva Srinivas is the complainant and injured. He is the son of
Lw-7 and Lw-8 namely Shavva Yadaiah and Shavva Muthyalamma. Lw-2/
Shavva Sai Kumar is also injured and son of Lw-7 and Lw-8. Lw-3 to Lw-6 and
Lw-9 namely Idikudi Ragava Chary, Md. Nazeer, Md. Naseem, Erra Ramana and Kurmeti Gopal are the neighbors of Lw-1, Lw-2, Lw-7 and Lw-8 and accused. Lw-7 is the younger brother of accused no. 9 and 10 and accused no. 6 and 7 are the sisters of Accused no. 1 to 5. Accused no. 8 is the son of accused no. 6. Accused and Lw-1, Lw-2, Lw-7 and Lw-8 are agnates. Accused no. 1 to 5 and Lw-1, Lw-2, Lw-7 and Lw-8 are having land disputes and frequently indulged in quarreling. The Lw-7 used to tie his she buffaloes in front of his house, which was causing inconvenience to the accused while they were passing through the bazaar. Whenever the accused asked the Lw-7 about tying the she buffaloes, Lw-7 used to quarrel with the accused and threatened them with dire consequences. On 06.06.2011 as usual Lw-1, Lw-2, Lw-7 and Lw-8 tied their she-buffaloes in front of their house. On the same night at about 7.30 3
PM Lw-9 who is the tenant of accused no. 5 while proceedings in front of the house of Lw-1, Lw-2, Lw-7 and Lw-8 in his auto, accused no. 5 removed the rope of the she buffalos alleging that it is obstructing the passing of auto.
Noticing the same Lw-7 questioned the accused no. 5 as to why he left the she buffalos. In this regard a quarrel took place between accused no. 5 and Lw-7.
Subsequently Lw-1 came out from the house and took his father into the house.
Accused no. 5 informed the incident to Accused no. 1 to 4 and 6 to 8. As already accused got land disputes with Lw-1, Lw-2, Lw-7 and Lw-8 and frequently having quarrel with them, accused no. 1 to 8 decided to kill the Lw-7.
Accordingly on the same night at about 11.00 PM while Lw-1, Lw-2, Lw-7 and
Lw-8 were present in their house, accused no. 1 to 8 formed into unlawful assembly, accused no. 1 to 3 are armed with sticks, accused no. 4 was armed with cricket bat, accused no. 5 were armed with a pestle went to the house of
Lw-1, Lw-2, Lw-7 and Lw-8 and broke open the door, trespassed into the house, drag out the Lw-1, Lw-2, Lw-7 and Lw-8 and attacked them indiscriminately. Accused no. 1 to 5 beat the Lw-7 on head and other parts of the body, pushed him into the ground and kicked him, accused no. 1 to 4 beat the Lw-1 on the head and hands with sticks and cricket bat, pushed her into drainage, accused no. 1 and 3 beat the Lw-8 on the head and shoulder with sticks, whereas accused no. 6 and 7 beat her with hands and pushed her into drainage, accused no. 4 beat the Lw-2 with cricket bat on the head, while accused no. 8 beat him with hands. Further accused No. 8 hurled stones on Lw- 1, Lw-2, Lw-7 and Lw-8. In the meanwhile Lw- 3 to 6 and alleged accused No. 9 and 10 rushed to the scene, saw the incident and tried to rescue the Lw-1, Lw-2,
Lw-7 and Lw-8. Accused left the scene of offence thinking that Lw-7 died.
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Accused no. 5 left the pestle at the scene of offence, while running away from the scene. Due to attack of accused no. 1 to 8, Lw-1, Lw-2 and Lw-7 received simple injuries, whereas Lw-8 received simple and grievous injuries. Further in that attack Lw-8 lost her gold ornament and cell phone.
ii. Then the incident was reported to police by Lw-1 on 07.06.2011 at 2.00 AM.
Basing on the same, L.W.15/ G. Hanumanthu, S.I., registered a case in Cr. No.
154/2011 for the offence U/Sec. 307, 324, 452, 427 r/w 149 of IPC, Sec., 147 and 148 of IPC, issued First Information Report and took up the investigation.
3.During the course of investigation, Lw-15 recorded the statement of LW- 1 and sent the Lw-1 to Government Area hospital, Deverakonda for treatment.
Later he visited the community health center, Deverakonda, but by that time due to severe head injury Lw-7 and Lw-8 were unable to give the statements.
Lw-15 recorded the statement of Lw-2 and gave requisition to the doctor for treatment and wound certificates. Later he visited the scene of offence and observed the same in the presence of Lw-10 and Lw-11 namely Pagilla
Venkatesham and Md. Nazeer. From the scene a pestle was recorded and accordingly scene observation report and rough sketch was prepared. At the scene of offence he recorded the statements of Lw-3 to Lw-6. Later he went to
NIMS hospital at Hyderabad and there he recorded the statement of Lw-7 and
Lw-8. Subsequently the investigation was handed over to Lw-16/ Sardar Singh,
C.I. of Police and he verified the investigation done by Lw-15 and found it on proper line. He again examined the Lw-1 to Lw-6. Further Lw-16 examined Lw- 9 and recorded his statement. Lw-7 and Lw-8 were also examined orally and they corroborated their earlier version. As per the statements of Lw-1, Lw-2,
Lw-7 and Lw-8, the alleged accused Shavva Venkatesham and Shavva 5
Sathaiah are cited as accused no. 9 and 10, but as per the statements of Lw-3 to
Lw-9 who are the eye witnesses, accused no. 1 to 8 only participated in the offence, as such the alleged accused no. 9 and 10 were deleted from the charge sheet. On 15.06.2011 Lw-16 arrested the accused no. 1 to 5 and recorded their confession in the presence of Lw-12 & Lw-13 namely Jooluri Renu Goud and
Jooluri Anjaiah and from the custody of accused no. 1 to 4 three sticks and one cricket bat were recovered and accordingly confession report was prepared.
Accused no. 6 and 7 obtained anticipatory bail from the Sessions Court vide
Crl. M.P. No. 762/2011 on 23.06.2011. According to the said anticipatory bail accused no. 6 and 7 surrendered before the Lw-16 and produced the sureties.
On 16.07.2011 Accused no. 8 was arrested and produced before the learned
Magistrate for the purpose of remand. Lw-14/ Dr. P. Ravi Prakash who treated
the Lw-1, Lw-2, Lw-7 and Lw-8 issued wound certificates that Lw-1, Lw-2 and
Lw-8 received severe injuries, whereas Lw-7 sustained simple as well as grievous injuries, as such U/sec., 326 of IPC is added. Thus the investigation established that the Accused No.1 to 8 committed offence punishable U/Sec.
307, 326, 324, 452, 427 r/w 149 of IPC and Sec., 147 and 148 of IPC and hence charge sheet is filed.
4.The learned Judicial First Class Magistrate, Deverakonda took cognizance of offence punishable U/Sec. 307, 326, 324, 452, 427 r/w 149 of IPC and Sec., 147 and 148 of IPC vide PRC No. 25/2012 and issued summons to
Accused No.1 to Accused No.8. After their appearance the learned Magistrate furnished them copies. As the offence U/Sec. 307 IPC is exclusively traible by court of Sessions, the learned magistrate committed the case to the Hon’ble 6
Principal Sessions court and in turn the Prl. Sessions Court made over the case
to this court for disposal according to Law.
5. After receiving case file summons were issued to Accused No.1 to
Accused No.8. However as per the report submitted, accused no. 3 died, whereas summons were served on the other accused. After appearance of accused no. 1, 2 and 4 to 8, they were examined U/Sec. 228 Cr.P.C., charge framed U/Sec. 307, 452, 427, 147, 148, 324 and 326 r/w 149 of IPC for which
Accused No.1 , 2 , 4 to 8 pleaded not guilty and claimed to be tried.
6.During trial on behalf of prosecution P.Ws.1 to Pw-13 examined, Ex.P1 to
P12 and M.O. 1 to 5 marked. During the evidence of Pw-5 Ex. D1 marked.
After closing prosecution side evidence, the accused no. 1, 2, 4 to 8 were examined U/Sec. 313 Cr.P.C., for which they denied the incriminating evidence and reported no defence evidence.
7. Both sides filed written arguments.
8.Now the point for determination is:
i.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 307 of IPC?” ii.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 326 r/w 149 of IPC?” iii.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 452 of IPC?” iv.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 427 of IPC?” v.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 148 of IPC?” 7 vi.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 147 of IPC?” vii.“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8 beyond reasonable doubt for the offence punishable U/Sec. 324 of IPC?”
9. Point No. 5:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 148 of
IPC?”
As can be seen from the written arguments of the accused, they claiming that there are several contradictions in the evidence of Pw-1 to Pw-7 when compared with their 161 Cr.P.C. statements and further investigation officer who examined the Pw-1 to Pw-7 is not examined as witness and some of the eye witness turned hostile.
10.In support of that contention, the accused relied upon the decision reported in 1983 (2) ALJ HC 350 between T. Subbi Reddy Vs. State, wherein the Hon’ble High Court while making discussion held that “ a number of contradictions are elicited from the evidence of the witnesses, which are to be put to the investigating officer, when the investigating officer in a police case fails to appear before the court to give evidence the case has to fail and there is no other way for the lower court except to acquit the accused on that sole ground”.
11.In this case Pw-1, 2, 6 and 7 gave evidence that when the accused no. 1 to 8 came to their house, they armed with sticks, bat and mace. Their evidence was supported by the eye witnesses i.e., Pw-3 to Pw-5. Eventhough the Pw-3 to
Pw-5 did not depose about specific overt acts of each accused, their evidence shows that they witnessed the accused attacking the Pw-1, 2, 6 and 7 with sticks and bat and by that time the accused are armed with sticks and bat. There are 8 minor variations in the evidence of Pw-4 and Pw-5, but their evidence is showing that by the time of incident accused no. 1 to 8 were armed with sticks and bat. Further as can be seen from the suggestions given to Pw-1 and Pw-2, the accused are claiming that on 06-06-2011 at 11.00 PM there was a free fight between family of accused and family of Pw-1.So, their evidence is clear about incident between accused and Pw-1 , 2 , 6 and 7 and about accused using sticks and bat. So, in this case there is sufficient evidence to show that accused no. 1, 2, 4 to 8 rioted on the house of Pw-1, 2 , 6 and 7 armed with deadly weapons and further formed into unlawful assembly in furtherance of common object to attack the Pw-1, 2,6 and Pw-7. So, the offence U/sec., 148 is proved and accordingly this point is answered.
12. Point No. 6:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4
to 8 beyond reasonable doubt for the offence punishable U/Sec. 147 of
IPC?”
In the light discussion made in point no. 5, it is clear that accused committing rioting armed with deadly weapons is established. In such case simple rioting do not arise. This charge is more like alternative charge for charge U/sec., 148 of IPC and when charge U/sec., 148 is proved, charge
U/sec., 147 fails. So, the offence U/sec., 147 is not made out and accordingly this point is answered.
13. Point No. 2:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 326 r/w 149
of IPC?”
As can be seen from the written arguments filed by the counsel for the accused it is contested that the offence U/sec., 326 of IPC is not proved because 9 the CT scan report, X-Ray or radiology report regarding the injuries of Pw-6 are not filed. In support of that contention the counsel for the accused relied upon the decision reported in 2002(1) ALD(Crl.) 621 AP between Erlapalli
Prakasham Vs. State of AP, wherein the Hon’ble High Court while making discussion at para no. 11 observed that “ in the absence of production of X-Ray films, the Radiologist report looses its weight and no value can be attached for his testimony. If the Radiologist report is ignored, the only evidence available on record is the evidence of the injured. In so far as the appreciation of their evidence is concerned, both the courts below have given concurrent finding and they have not believed about sudden arrival of bullock cart and I do not find any reason to different from the appreciation of evidence as it is based on sound reasoning. As already stated, the Radiologist has not produced the X-ray films and in the absence of the same, it cannot be said that there are grievous injuries and it must be taken that the injured have sustained simple injuries”.
14.As per the prosecution case, Pw-6 sustained fracture on the left nosal bone which is in grievous nature. The doctor who treated the Pw-1, 2, 6 and
Pw-7 examined as Pw12. The wound certificate of Pw-6 is marked as Ex. P8.
However in the present case the CT scan report or X-ray or radiology report are not filed by the prosecution and Pw-13 admitted that he did not collect those reports. As per the evidence of Pw-1 and Pw-2, Pw-6 sustained bleeding injury on the head and on the back. As per the evidence of Pw-6 he sustained head injury and fainted. Pw-7 did not depose anything about the injuries sustained by Pw-6. So, the oral evidence is not revealing that accused hit on the nose and chest of the Pw-6 and thereby caused fracture on the left nosal bone.
Further as rightly contested by the counsel for the accused without filing 10 radiology report or X-ray or CT scan report and without examined the radiologist the nature of the injury cannot be believed. In the absence of those reports and evidence of radiologist at best the injuries can be treated as simple, but not grievous. So, in this case the offence U/sec., 326 r/w 149 of IPC is not established and accordingly this point is answered.
15. Point No. 3:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 452 of
IPC?”
It is the case of the prosecution that the accused no. 1 to 8 trespassed into the house of Pw-1, broke open the door and entered the house. Pw-1 deposed that they broke open the back door of the house and when he questioned the accused they attacked him. Pw-2 also supported the evidence of Pw-1 on this aspect. Pw-6 also deposed that they broke open the door and when Pw-1 questioned them, accused attacked him. Pw-7 also corroborated the evidence of
Pw-1, 2 and Pw-6. Further the evidence of Pw-3 show that he noticed the damaged house hold articles and back door of the house was broke open.
Their evidence is consistent about the accused trespassing into the house as contested by the prosecution and nothing is elicited from the evidence of Pw-1, 2, 6 and 7 to show that they are deposing false. Further as can be seen from the evidence the accused armed with weapons and after making preparation to assault entered the house, as such it is proved that offence U/sec., 452 of IPC was committed by the accused no. 1, 2, 4 to 8 and accordingly this point is answered.
16.Point No. 4:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 427 of
IPC?” 11
In the light discussion made in point no. 3, it is proved that accused no. 1 to 8 committed house trespass after making preparation to assault. As per the 161 Cr. P.C statements of Pw-1, 2,6 and Pw-7 , the accused snatched away the gold ornament of Pw-7/Lw-8. Pw-7 deposed on the same lines. The snatching of gold ornament by accused no.6 and 7 as deposed by Pw-1 and Pw-7 do not attract offence U/sec., 427 of IPC. However in this case the evidence of Pw-3 is crucial because he not only deposed about accused attacking the Pw-1, 2, 6 and 7, but also deposed that he went into the house of Pw-6, he noticed the damaged house hold articles and broke open the back door. For a moment if it is believed that there is no such damaged house hold articles , still the evidence of Pw-3 corroborated the evidence of Pw-1, 2, 6 and 7 about the accused no. 1 to 8 broke open the back door. So, the mischief as alleged by the prosecution
U/sec., 427 of IPC is proved and hence this court is believed that accused no. 1, 2, 4 to 8 committed U/sec., 427 of IPC and accordingly this point is answered.
17. Point No. 7:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 324 of
IPC?”
It is defence of the accused that on 06.06.2011 at 11.00 PM there are free fight between family of accused and family of Pw-1 and as it was dark time there was no possibility to see what happen, but taking advantage of the land disputes between family of accused and family of Pw-1, a false complaint was given. From the suggestions given to Pw-1 and Pw-2, it is clear that on 06.06.2011 at 11.00 PM an incident was took place, but they are claiming it as free fight. In the light of discussion made in point no. 5, it is established that by the time of incident the accused no. 1 to 8 were armed with sticks, bat and 12 mace. In the 161 Cr.P.C. statements of Pw-1 to Pw-7 it is mentioned that accused no. 1 and 2 hit the Pw-1 with sticks on the head, accused no. 4 hit the
Pw-1 with cricket bat, accused no. 3 hit the Pw-1 with stick on the right hand finger and accused no. 1 to 3 and 5 hit the Pw-6 with sticks and accused no. 4 hit the Pw-6 with cricket bat on the head and then stomped the Pw-6 and caused fracture injuries and further as per their 161 Cr.P.C. statements accused no. 1 and 3 hit the Pw-7 on the left side of the head, left shoulder and back with sticks, whereas accused no. 6 and 7 beat the Pw-7 with hands, pushed her into drainage and kicked her with their legs. As per 161 Cr.P.C. statements accused no. 8 hurled stones on Pw-1, Pw-2, Pw-6 and Pw-7. Coming to oral evidence,
Pw-1 deposed that accused no. 1 and 2 attacked him with sticks, whereas accused no. 4 attacked him with cricket bat and caused injuries on the head and right hand finger. As per the evidence of Pw-12, there is laceration on the forehead of the Pw-1, which is simple in nature. Pw-1 further deposed that accused no. 4 attacked the Pw-2 with bat and accused no. 1 and 2 attacked the
Pw-2 with sticks and caused head injuries and all over the body. As per the evidence of Pw-12 there is swelling on the forehead and right hand of the Pw-2, which are in simple in nature. As per the evidence of Pw-1, accused no. 1, 2 and 5 attacked the Pw-6 with sticks, accused no. 3 attacked the Pw-6 with mace, accused no. 4 attacked the Pw-6 with bat and due to the same Pw-6 sustained bleeding injury on the head. As per the evidence of Pw-12, Pw-6 sustained laceration on the left side of the head which is simple in nature. As per the evidence of Pw-1, accused no. 1, 2 and 5 attacked the Pw-7 with sticks and due to the same she sustained bleeding injury on the head and all over the body and then accused no. 6 and 7 pushed her down and kicked her with legs. As 13 per the Pw-12, Pw-7 sustained laceration on the left temporal region, which is simple in nature. The evidence of Pw-1 regarding the injuries sustained by Pw- 1, 2, 6 and 7 on the head is supported by Ex. P6 to Ex. P9. Pw-2 deposed that accused no. 1, 4 and 5 attacked him with sticks and caused head injury and injury on the right hand wrist. According to his evidence accused no. 1 to 3 attacked the Pw-1 with sticks accused no. 4 attacked the Pw-1 with cricket bat and due to the same Pw-1 sustained bleeding injury on the head and injuries on the right hand finger. Further according to his evidence accused no. 1 to 3 attacked the Pw-6 with sticks, accused no. 2 attacked the Pw-6 with mace and due to the same Pw-6 sustained head injury and injuries on the back side and fainted. Further he deposed that accused no. 1, 3, 5 to 7 attacked the Pw-7 with sticks, caused bleeding injury on the head and on the back side. Further he deposed that accused no. 6 and 7 thrown the Pw-6 into drainage, whereas accused no. 1, 2, 4 and 5 beat the Pw-6 with sticks and caused head injury. So, eventhough there are minor variations in the evidence of Pw-1 and Pw-2, his evidence is corroborating the evidence of Pw-1 regarding nature of injuries caused by the accused no. 1 to 7. Pw-6 deposed that the accused no. 1 to 5 attacked him with sticks, bat and mace and due to the same he sustained head injury and fainted. So, his evidence also corroborated the evidence of Pw-1 and
Pw-2 regarding accused no. 1 to 7 attacking them. Pw-7 deposed that all the accused attacked her, Pw-1, Pw-2 and Pw-6 and out of them accused no. 1 and 3 hit her on the head with sticks and broke her head, whereas accused no. 6 and 7 thrown her into drainage and stomped her. Eventhough the Pw-6 deposed that accused no. 8 also attacked him, in fact in the 161 Cr.P.C. statements given 14 by Pw-1 to Pw-7, none stated that accused no. 8 attacked them, but they stated
before the police as if accused no. 8 hurled stones.
18. In this case, Pw-3 to Pw-7 are eye witnesses. Pw-3 deposed that he saw all the accused attacking the Pw-1, Pw-2, Pw-6 and Pw-7. According to his evidence by the time he went there already head of the Pw-6 was broken and
Pw-7 was thrown into the drainage. Pw-4 also deposed that he noticed the accused attacking the Pw-1, Pw-2, Pw-6 and Pw-7 with sticks. Pw-5 corroborated their evidence deposing that accused no. 1 to 7 armed with sticks and bat and beat the Pw-1, Pw-2 , Pw-6 and Pw-7. He further deposed that by that time he went there, Pw-7 was thrown into drainage and some of the accused were stomping her. He also deposing that in that incident Pw-6 sustained injuries and fainted. So, the evidence of Pw-3 to Pw-5 corroborated the evidence of Pw-1, Pw-2 , Pw-6 and Pw-7 regarding accused no. 1 to 7 attacking them with sticks and bat. In this case the mace is marked as MO.5.
Eventhough Pw-1, Pw-2 , Pw-6 and Pw-7 deposed that accused armed with sticks and also attacked them, none of the witnesses deposed that with the mace accused caused injuries to them. From their evidence it is clear that the accused no. 6 and 7 thrown the Pw-7 into drainage and stomped her.
19. In this case Lw-15 who is investigation officer is not examined as witness and accused took a defence that his non examination is fatal, because the material contradictions and omissions are not elicited. This Court is not accepting this contention, because when only there are material contradictions and omissions, it is necessary to examine the investigation officer. When those contradictions or omissions are not material and not going to the root of the case, even if the investigation officer is not examined, on that ground accused 15 cannot plead acquittal. The decision relied upon by the counsel for the accused on this aspect did not apply to the present set of facts, because there are no material omissions and contradictions. No doubt Pw-1 and Pw-2 stated that when the accused attacked them, they ran away to depot and from there they went to hospital either in the ambulance or in the police jeep, but it is not mentioned in the 161 Cr. P.C. statements of Pw-1 and 2. However it is not a material contradiction, as such even if the investigation officer is not examined, accused cannot take advantage.
20.As can be seen from the evidence of Pw-1, 2, 6 and 7 as well as the evidence of Pw-13 that the family of Pw-1 and family of accused got long standing land disputes. Pw-1 as well as Pw-2 and Pw-6 admitted that the incident took place at dark time. However their evidence is clear about who among the accused attacked them with which weapon. Pw-1 and Pw-2 clearly deposed that accused no. 4 used bat, whereas accused no. 1 to 3 and 5 to 7 used sticks. Further the accused also admitting that incident took place on 06.06.2011 at 11.00 PM. So just because it was dark, the case of the accused that somebody else caused injuries to the Pw-1, 2, 6 and 7 cannot be accepted.
21.No doubt in this case in Ex. P1 specific overt acts of each accused are not mentioned. However it is not fatal to the prosecution case, because the complaint is not encyclopedia and all the facts need not be mentioned in the complaint. When the police examined Pw-1 to Pw-7, they deposed about how the accused attacked the Pw-1, 2, 6 and 7. So, the accused cannot take advantage that Ex. P1 do not contain specific overt acts. One more thing is as per the FIR complaint was given at 2.00 PM on 07.06.2011, whereas Pw-1 and
Pw-2 deposed that they gave a complaint in the afternoon time. Further as per 16 the endorsement made by the magistrate on the FIR, it was received on 08.06.2011 at 12.10 PM. In FIR it is simply mentioned as 2.00 without mentioning whether AM or PM. However as per the endorsement made by the investigation officer on EX. P1, he received it at 2.00 AM. It appears that the complaint was given in the afternoon on 07.06.2011, but when ante time it is mentioned as 2.00 AM. Further if the FIR is not immediately forwarded to the
Magistrate, it is a latch on the part of the investigation officer. When the
complaint was given promptly, but FIR was sent to Magistrate belatedly, on that ground the case of the prosecution cannot be doubted.
22.The Hon’ble Supreme Court of India decision reported in 2017(2) ALD (Crl.) 42 (SC) between Krishnegowda and others Vs State of Karnataka while making discussion at para no. 27 held that “ It is a settled law that mere latches on the part of investigating officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating officer. The courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record”. Further in the same decision the Hon’ble
Supreme Court of India at para no. 24 held that “ although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eye witnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of eye witnesses will not tilt the benefit of doubt in favour of the accused, but when the contradictions in the evidence of prosecution witnesses proved to be fatal to the prosecution case then those contradictions go to the 17 root of the matter and in such cases accused gets the benefit of doubt”. So, it is clear that on the fateful day accused no. 1 to 7 attacked the Pw-1, 2, 6 and 7 with sticks and bat. In this case, the Pw-13 recorded the confession of accused no. 1 to 5 and recovered 3 sticks and one cricket bat. The evidence of Pw-13 itself is sufficient to believe that basing on the confession of accused no. 1 to 5, he recovered 3 sticks and cricket bat, which are marked as M.O. 1 to M.O. 4. In this case the investigation officer who observed the scene of offence is not examined and mediator i.e., Pw-10 turned hostile and did not support the case of prosecution regarding recovery of mace. Eventhough the Pw-1, 2, 6 and 7 deposed as if the accused attacked them with mace, none of the other witnesses deposed that with the mace the accused caused injuries to them. In those circumstances, accused using the mace appears to the doubtful. So, the appropriation of evidence proved that accused no. 1, 2, 4 to 7 used sticks and bat and caused head injury to the Pw-1, 2, 6 and 7. Further the evidence is clear that accused no. 6 and 7 thrown the Pw-7 into drainage and stomped. The evidence is not sufficient to show that accused no. 8 also attacked the Pw-1, 2, 6 and 7 . So, the offence U/sec., 324 of IPC against accused no. 1, 2, 4 to 7 is proved, whereas offence U/sec., 324 of IPC against accused no. 8 is not proved.
Accordingly this point is answered.
23. Point No. 1:
“Whether the prosecution proved the guilt of Accused No.1, 2, 4 to 8
beyond reasonable doubt for the offence punishable U/Sec. 307 of
IPC?”
The discussion made in point no. 7 established that accused no. 1 to 7 attacked the Pw-1, 2, 6 and 7 with sticks and bat and further accused no. 6 and 7 thrown the Pw-7 into drainage and stomped her. It is an admitted fact that the 18 family of Pw-1 and family of accused got long standing disputes regarding the land. In this case eventhough the evidence proved the accused no. 1 to 7 attacking the Pw-1, 2, 6 and 7, as can be seen from the evidence of Pw-12, the injuries sustained by them are simple in nature. The evidence is not sufficient to show that accused no. 1 to 7 attacked the Pw-1, 2, 6 and 7 with an intention to kill them. It appears that because of the land disputes accused no. 1 to 7 attacked the Pw-1, 2, 6 and 7 either to threaten them or to cause injuries. It may be fact that Pw-6 and Pw-7 fainted due to injuries caused by the accused, but itself it is not sufficient to believe that accused no. 1 to 7 wanted to do way with the life of PW- 7. In those circumstances, this court is of opinion that the offence
U/sec., 307 of IPC is not proved and accordingly this point is answered.
24.In the result:
i. Accused No.1, 2, 4 to 8 are not found guilty for the offence punishable
U/Sec. 307 of IPC and accordingly they are acquitted U/Sec. 235(1) Cr.P.C.
ii.Accused No.1, 2, 4 to 8 are not found guilty for the offence punishable U/Sec. 326 r/w 149 of IPC and accordingly they are acquitted U/Sec. 235(1) Cr.P.C.
iii.Accused No.1, 2, 4 to 8 are not found guilty for the offence punishable
U/Sec. 147 of IPC and accordingly they are acquitted U/Sec. 235(1) Cr.P.C.
iv.The accused no. 8 is not found guilty for the offence punishable U/sec., 324 and accordingly he is acquitted U/sec., 235(1) Cr.P.C.
v.Accused No.1, 2, 4 to 7 are found guilty for the offence punishable
U/Sec. 324 of IPC and accordingly they are convicted U/Sec. 235(2) Cr.P.C.
vi.Accused No.1, 2, 4 to 8 are found guilty for the offence punishable
U/Sec. 148 of IPC and accordingly they are convicted U/Sec. 235(2) Cr.P.C.
vii.Accused No.1, 2, 4 to 8 are found guilty for the offence punishable
U/Sec. 452 of IPC and accordingly they are convicted U/Sec. 235(2) Cr.P.C.
viii.Accused No.1, 2, 4 to 8 are found guilty for the offence punishable
U/Sec. 427 of IPC and accordingly they are convicted U/Sec. 235(2) Cr.P.C.
19 ix.M.O.1 to M.O. 5 shall be destroyed after expiry of 6 months time.
Dictated to Steno, transcribed and typed by her, corrected and pronounced by me in
the open Court on this the 14 th day of February, 2019.
ASSISTANT SESSIONS JUDGE
NALGONDA.
1.A1, A2, A4 to A8 are questioned about quantum of imprisonment. A1 claimed that he got young children and further his wife and mother are not doing well. The A2 claimed that he is doing labour work and that he has to perform marriage of his daughter. The A4 claimed that he got young aged children and that his mother is not doing well. He further claimed that he is the bread winner for his family. The A5 claimed that he is doing labour work and that he has to maintain his children. The A6 claimed that she got tender aged children and that her husband is a paralytic patient. The A7 claimed that her husband is no more and that she is doing labour work to maintain her young children. The A8 claimed that he got a young daughter and that he has to maintain her by doing coolie work.
2.As the accused attacked the PWs.1, 2, 6 and 7 keeping the property dispute in mind, it is clear that the attack is pre meditated and cannot be considered lightly.
3.Hence the A1, A2, A4 to A7 are sentenced to undergo simple imprisonment for six months and directed to pay fine of Rs.1,000/- each for the offence punishable U/Sec. 324 IPC. In default of payment of fine the A1, A2, A4 to A7 shall undergo simple imprisonment for ten days.
4.The A1, A2, A4 to A8 are sentenced to undergo simple imprisonment for one year and directed to pay fine of Rs.1,000/- each for the offence punishable 20
U/Sec. 148 IPC. In default of payment of fine the A1, A2, A4 to A8 shall undergo simple imprisonment for ten days.
5. The A1, A2, A4 to A8 are sentenced to undergo simple imprisonment for two years and directed to pay fine of Rs.2,000/- each for the offence punishable
U/Sec. 452 IPC. In default of payment of fine the A1, A2, A4 to A8 shall undergo simple imprisonment for twenty days.
6. The A1, A2, A4 to A8 are sentenced to undergo simple imprisonment for six months and directed to pay fine of Rs.500/- each for the offence punishable
U/Sec. 428 IPC. In default of payment of fine the A1, A2, A4 to A8 shall undergo simple imprisonment for five days.
7. The sentences shall run concurrently and the remand period if any shall be set off U/Sec. 428 Cr.P.C. The Accused are informed about their right of appeal and they are entitled for free copy of Judgment.
Dictated to Steno, transcribed and typed by her, corrected and pronounced by me in the
open Court on this the 14 th day of February, 2019.
Sd/-
ASSISTANT SESSIONS JUDGE
NALGONDA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION :
PW-1 (LW-01) S. Srinivas … Complainant and injured
PW-2 (LW-02) S. Sai Kumar … injured
PW-3 (LW-03) I.Raghava … Eye witness Chary
PW-4 (LW-04) Md Nazeer … Eye witness
PW-5 (LW-06) E. Ramana … Eye witness 21
PW-6 (LW-7) Shavva Yadaiah … injured
PW-7 (LW-8) S. Muthyalamma … injured
PW-8 (LW-9) K. Gopal … Eye witness
PW-9 (LW-11) Md. Nazeer … Panch for confession & recovery of A1 to A5
PW-10 (LW-10) P. Venkatesham … Panch for scene & seizure
PW-11 (LW-13) Jooluri Anjaiah … Panch for confession & recovery of A1 to A5
PW-12 (LW-14) Dr. P. Ravi Prakash … Issued MCs or Lw-1, 2, 7 and 8
PW-13 (LW-16) Sardar Singh … I.O.
WITNESSES EXAMINED ON BEHALF OF ACCUSED: -NIL-
EXHIBITS MARKED ON BEHALF OF THE PROSECUTION :
Ex.P1 Is the complaint by Pw-1
Ex-P2 is the 161 Cr.P.C statement of Pw-8
Ex-P3 is the signature on confession and recovery panchanama by Pw-9
Ex-P4 is the signature on scene of offence and recovery panchanama by Pw-10
Ex-P5 is the signature on confession and recovery panchanama by Pw-11
Ex-P6 is the requisition and wound certificate of Pw-1
Ex-P7 is the requisition and wound certificate of Pw-2
Ex-P8 is the requisition and wound certificate of Pw-6 22
Ex-P9 is the requisition and wound certificate of Pw-7
Ex-P10 Is the relevant portion of confession statement leading to recover of 3 sticks and one cricket bat
Ex-P11 Is the FIR
Ex-P12 Is the scene of offence and recovery panchanama
EXHIBITS MARKED ON BEHALF OF THE ACCUSED:
Ex-D1 Is the relevant portion of 161 Cr.P.C. statement of Pw-5
MATERIAL OBJECTS MARKED : M.O. 1 to M.O. 3 are the sticks
M.O. 4 is the bat
M.O. 5 is the mace
Sd/-
ASSISTANT SESSIONS JUDGE
NALGONDA