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2009 Supreme(SC) 1029

2009(4) Supreme 363
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Vallabhaneni Venkateshwara Rao — Appellant
versus
State of A.P. — Respondent
Criminal Appeal No. 373 of 2008
Decided on : 08-05-2009

Advocates appeared:
For the Appellant :M. Karapaka Vinayagam, Sr. Adv., Venkateswara Rao Anumolu, Prabhakar Parnam, P.S. Narasimhan, C. Masthan Naidu, Venkateswara Rao Anumolu, Advocates.
For the Respondent:R. Sunda4ravardhan, Sr. Adv., Mrs. D. Bharathi Reddy, Ms. Altaf Fatima, Advocates.

IMPORTANT POINT
Where 3 different stories had been projected by prosecution, it was held unsafe to convict the accused-appellants in facts and circumstances of case.

Headnote:Indian Penal Code, 1860 – Sections 302 read with Sections 149, 148 – Prosecution of accused persons seven in number for forming an unlawful assembly near fish tanks of Chevuru village and for beating deceased with casuarian sticks and causing his death – Conviction of A1 to A7 by trial Court placing reliance on two dying declarations i.e. Ext.P-12 and Ext.P-14 – On appeals thereagainst High Court held that A4 and A7 were not guilty and they were acquitted of charges – For their acquittal main reason was that Ext.P-14 was disbelieved – So far as accused 1 to 3 were concerned, appeal was dismissed – Appeals thereagainst by A1 to A3 – It was seen from records, that 3 different stories had been projected by prosecution – As per Ex.P12 recorded at 12.45 P.M., 3 persons attacked with sticks in the presence of one eye witness – As per C-2 recorded at 2.30 P.M. ten persons attacked with crow bar – As per Ex.P14 recorded by P.W.8 before death of deceased at 2.50 P.M. seven persons attacked with sticks in the presence of two new eye witnesses – No clear answer from prosecution as to which of the three versions was believable – Ex.P12 suffered from two infirmities – Firstly, medical evidence was contradictory – Secondly, only eye witness mentioned in Ex.P12 was not examined – Non-examination of said eyewitness resulted in lack of corroboration to Ex.P-12 – Apart from that High Court wrongly stated that Ex.P14 did not refer to Ex.P12 – In fact, it clearly stated that police recorded his statement which was Ex.P12 – Held unsafe to convict the accused-appellants in facts and circumstances of case – Appeals allowed. (Paras 7 to 9)
       Facts of the Case :
        1. Accused persons seven in number were prosecuted herein in the instant case for forming an unlawful assembly near fish tanks of Chevuru village and for beating deceased with casuarian sticks and causing his death. A1 toA7 were convicted by trial Court placing reliance on two dying declarations i.e. Ext.P-12 and Ext.P-14. On appeals thereagainst High Court held that A4 and A7 were not guilty and they were acquitted of charges.For their acquittal main reason was that Ext.P-14 was disbelieved.So far as accused 1 to 3 were concerned, appeal was dismissed.
        2. Present appeals have been filed by A1 to A3.
       Findings of the Court :
        It was seen from records, that 3 different stories had been projected by prosecution. As per Ex.P12 recorded at 12.45 P.M., 3 persons attacked with sticks in the presence of one eye witness. As per C-2 recorded at 2.30 P.M. ten persons attacked with crow bar. As per Ex.P14 recorded by P.W.8 before death of deceased at 2.50 P.M. seven persons attacked with sticks in the presence of two new eye witnesses. There was no clear answer from prosecution as to which of the three versions was believable.Ex.P12 suffered from two infirmities. Firstly, medical evidence was contradictory. Secondly, only eye witness mentioned in Ex.P12 was not examined. Non-examination of said eyewitness resulted in lack of corroboration to Ex.P-12.Apart from that High Court wrongly stated that Ex.P14 did not refer to Ex.P12. In fact, it clearly stated that police recorded his statement which was Ex.P12. Held unsafe to convict the accused-appellants in facts and circumstances of case. Appeals were allowed.
       Result : Appeals allowed.

JUDGMENT

Dr. Arijit Pasayat, J.—

1. These two appeals are directed against the common judgment of the Andhra Pradesh High Court. Seven accused persons had filed the appeal before the High Court questioning their conviction for offences punishable under Sections 302 read with Sections 149, 148 of the Indian Penal Code, 1860 (in short the ‘IPC’). Additionally, A1 appellant in present Criminal Appeal no.373 of 2008 was convicted for offence punishable under Section 341 IPC. Charge was made against all the accused persons that on 9.10.2002 at about 11.30 a.m. all of them formed an unlawful assembly near the fish tanks of Chevuru village and beat Adusumalli Ranga Rao (hereinafter referred to as the ‘deceased’) with casuarian sticks and caused his death.

2. The version of the prosecution as put forth is to the effect that all the material witnesses as well as the accused are residents of Chevuru village of Mudinepalli Mandal, Krishna District and there have been ill feelings between the accused and the prosecution witnesses. Accused Nos.1 and 2 are brothers, 4 and 5 are the sons of A.1 and A.2. A.3 is the cousin and A.6 and A.7 are brothers-in aw of A.1. PWs 1 to 6 belong to one group, and the deceased is the brother of PWs 3 and 5. PW.4 is the sister’s son of the deceased. On 9-10-2002 PW.1 went to Singarayapalem village to bring a doctor by name B.Satynarayana (LW.2) to attend his maternal grandmother who was suffering from ill-health. While bringing the doctor on his scooter, at that time the deceased was also walking along on the road. When PW.1 crossed Singarayapalem Centre, the deceased stopped his scooter for a lift. Then the deceased was picked up on his scooter and when they reached Chevurupalem Anjaneya Swamy temple, at that time PW.2 was also coming by walk. Since the road repair works were going on, PW.1 asked the doctor (LW2) and the deceased to get down and when he was coming on the road margin along with the scooter and reached the tanks of Dr.Vijay Kumar, by stopping his scooter and was waiting for the arrival of the Doctor (LW2) as well as the deceased, at that point of time all the accused who were holding stout sticks and were proceeding towards Singarayapalem started abusing the deceased. Later, accused No.1 caught hold of the deceased and beat with a stout stick on the head of the deceased. A.4 and A.5 beat the deceased on the right shoulder. A.2 and A.3 also beat the deceased on the left thigh and further beat near the joint of leg. A.6 and A.7 also beat the deceased on the right leg. At that time the road coolies who are attending road works also raised cries requesting not to beat the deceased. Later PW.1 went to the village and informed about the incident to PW.3. Thereafter, PW.3 came to the scene of offence and came to know about the incident through the deceased. Immediately for some time the deceased was taken to the hut of Jagan (LW.15) situated on the tank bund and thereafter, the deceased was shifted to Mudinepalli Police Station in Car. Assistant Sub-Inspector, PW.8 who was in the Police Station recorded the statement of the deceased under Ex.P.12 and initially registered a case in Crime No.96 of 2002 for the offences punishable under Sections 341, 324, 325 read with 34 IPC in P.S.Mudinepalli and issued FIR to all the concerned. Ex.P.13 is the FIR. Afterwards, the deceased was referred for treatment to the Government Hospital, Gudivada through PC No.795 along with a hospital memo. PW.10 is the doctor treated the deceased. Ex.C.2 is the relevant entry in Ex.C.1 the accident register pertaining to the treatment of the deceased.

Later on PW.8 took up investigation and went to Gudivada hospital and recorded the statement of the deceased while he was alive, under Ex.P.14 and recorded the statements of PWs 3, 5, 4 and left the Gudivada Hospital and reached Chevuru village and also examined and recorded the statements of PW.1 and LW.2 and again visited Chevuru village examined and recorded the statements o

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2009 Supreme(SC) 1029

2009(4) Supreme 363SUPREME COURT OF INDIADr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.Vallabhaneni Venkateshwara Rao — AppellantversusState of A.P. — RespondentCriminal Appeal No. 373 of 2008Decided on : 08-05-2009

IMPORTANT POINT Where 3 different stories had been projected by prosecution, it was held unsafe to convict the accused-appellants in facts and circumstances of case.

2009(4) Supreme 363
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Vallabhaneni Venkateshwara Rao — Appellant
versus
State of A.P. — Respondent
Criminal Appeal No. 373 of 2008
Decided on : 08-05-2009

IMPORTANT POINT
Where 3 different stories had been projected by prosecution, it was held unsafe to convict the accused-appellants in facts and circumstances of case.