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2022 Supreme(AP) 203
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
K. SREENIVASA REDDY, J.
Gedala Ganeswara Rao - Petitioner
Versus
The State of A.P. - Respondent
Criminal Appeal No. 1622 of 2018 & Transfer Criminal Appeal No. 1 of 2021
Decided On : 14-06-2022
Important Points
Subject
Criminal Law - Assault
Act Referred
Headnote
Indian Penal Code, 1860 - Sections 307 and 353 read with 34 – Offence of Attempt to Murder – Appeal against conviction - When P.W.1 tried to enquire with A.2 about A.1, she instigated two pet dogs to attack them with a view to obstruct them from discharging their legitimate duties. It is alleged that one of dogs bit P.W.1 and caught hold his blue colour jeans pant and tore it away. Mean while, A.2 informed A.3 over phone about incident. A little later, P.W.1 received a phone call to his mobile number. The said phone number belongs to A.3, who is none other son of A.1 and A.2. It is alleged that A.3 abused P.W.1 and threatened him to kill, on phone. It is alleged that A.3 shouted on P.W.1 that he would approach Human Rights Commission against them – There is no reason why investigating officer has not seized CCTV footage to arrive at the conclusion that incident had taken place, as suggested by prosecution - Court is not satisfied with reasoning given by court below and convictions and sentences recorded by trial Court are liable to be set aside. (Para 20)
Finding of the Court: It is for that reason, there is any amount of ambiguity to come to conclusion whether said incident is said to have taken place as suggested by prosecution. Admittedly, no photographs of the Rotwiller dogs have been marked to conclude whether said dogs were present in house or not. Further, a perusal of evidence also goes to show that there were CC TVs around the house of A.1. There is no reason why investigating officer has not seized CCTV footage to arrive at conclusion that the incident had taken place, as suggested by prosecution. There are number of inconsistencies in evidence of P.Ws.1 and 2, which go to root of case, whether the incident had taken place in the manner suggested by the prosecution. Court is not satisfied with reasoning given by court below and the convictions and sentences recorded by the trial Court are liable to be set aside.
Result: Criminal Appeals allowed.
For the Petitioner: Ch. Venkat Raman.
For the Respondent: Public Prosecutor A.P.
JUDGMENT :
Appellant in Criminal Appeal No.1622 of 2018 is A.1, and the appellants in Transfer Criminal Appeal No.1 of 2021 are A.2 and A.3, in Sessions Case No.77 of 2011 on the file of the Assistant Sessions Judge, Vizianagaram. The learned Assistant Sessions Judge framed charges-for the offence punishable under Section 307 of the Indian Penal Code, 1860 (for short, ‘IPC’) against A.1; for the offence punishable under Section 307 IPC against A.2, and for the offences punishable under Sections 307 and 353 read with 34 IPC against A.1 to A.3.
2. The learned Assistant Sessions Judge, vide judgment dated 19.02.2018, found A.1 and A.2 not guilty of the offence punishable under Section 307 IPC and accordingly acquitted them of the said charge, and found A.1 to A.3 guilty of the offences punishable under Sections 307, 353 read with 34 IPC and accordingly convicted them of the said offences. As A.1 was absent on the date of pronouncement of the Judgment on 19.02.2018, the learned Assistant Sessions Judge issued non-bailable warrant against him for his production, for hearing him with regard to quantum of sentence. After hearing A.2 and A.3 with regard to quantum of sentence, the learned Assistant Sessions Judge sentenced them to undergo simple imprisonment for a period of seven years each and to pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of four months each, for the offence punishable under Section 307 read with 34 IPC, and further sentenced them to pay fine of Rs.5,000/- each, in default to suffer simple imprisonment for a period of four months each, for the offence punishable under Section 353 read with 34 IPC.
3. On 04.06.2018, the learned Assistant Sessions Judge heard A.1 with regard to quantum of sentence and sentenced him to undergo simple imprisonment for a period of seven years and to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of four months, for the offence punishable under Section 307 read with 34 IPC, and further sentenced him to pay fine of Rs.5,000/-, in default to suffer simple imprisonment for a period of four months, for the offence punishable under Section 353 read with 34 IPC.
4. Challenging the convictions and sentences recorded against him, A.1 preferred Criminal Appeal No.1622 of 2018 before this Court. A.2 and A.3 preferred Criminal Appeal No.11 of 2018 on the file of the learned District and Sessions Judge, Vizianagaram, challenging the convictions and sentences recorded against them. The said appeal was withdrawn from the file of the learned Sessions Judge and transferred to the file of this Court for hearing along with Criminal Appeal No.1622 of 2018, as per order dated 24.09.2019 in Transfer Criminal petition No.33 of 2019, and renumbered as Transfer Criminal Appeal No.1 of 2021.
5. Brief facts of the case are as follows:
On the instructions of the Deputy Superintendent of Police, Anakapalli and the Inspector of Police, Anakapalli town, on 23.04.2010, P.W.1-Sub Inspector of Police along with P.W.2 and others, went to arrest A.1, who was absconding, in connection with crime No.8 of 2010 of Sabbavaram police station registered for the offences punishable under Sections 447, 506 and 323 IPC. They went to house of A.1 at Vizianagaram at about 1.00 PM on that day and found A.1 in the house. A.1 identified P.W.1 and others as police personnel and instigated his pet dogs i.e. Rotwillers, which are two in number, against them with a view to kill them and assaulted through the said dogs from discharging their duties. P.W.1, who was leading the team, was attacked by the dogs. But, P.W.1 narrowly escaped and got down from the steps of first floor of house of A.1. P.W.1 noticed the Inspector of ACB by name Satyanarayana at the ground floor of house of A.1. On enquiry, the Inspector of ACB informed that he came there for valuation of assets of A.1 in connection with ACB case against A.1. The Inspector of ACB requested P.W.1 to stop their investigation
