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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.        802      OF     2012   (Arising out S.L.P. (Crl.) No.2904 of 2011)

Para Seenaiah & Anr. …Appellants

Versus

State of Andhra Pradesh & Anr. …Respondents

With      

CRIMINAL     APPEAL     NOS.      804-806      OF     2012   (Arising out S.L.P. (Crl.) Nos.5597-5599 of 2011)

Damineni Rathnamma …Appellant

Versus

Para Veeraiah & Ors. …Respondents

J     U     D     G     M     E     N     T   

T.S.     THAKUR,     J.   

1. Leave granted.

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2. This is yet another case in which degenerate village  

politics has turned violent to claim a valuable human life.  

The prosecution story is that out of two factions in village  

Nagulavellatur one was led by Para Braimaiah (A-3) while  

the other was championed by Bodduluru Rathanam.  In the  

election for the post of Sarpanch of Nagulavellatur village,  

Smt. Mahalakshmamma mother of Bodduluru Rathanam  

contested against Smt. Karnam Lalithamma who was  

supported by the accused persons. Smt. Karnam  

Lalithamma won the said election in the process  

embittering the relationship between the two groups.  It is  

also the case of the prosecution that complaints and  

counter-complaints by the members of the two factions  

were being made against each other before the police and  

other authorities in relation to different issues to wreak  

revenge against each other.  The strained relationship and  

enmity between the two factions led to an incident in which  

the deceased is alleged to have made an attempt on the life  

of one Para Yandaiah, son of accused No.3 on 6th April,  

1996; resulting in the registration of  FIR No.17/96 against  

the former.  As an act of reappraisal accused Nos. 1 to 6, 8  

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to 10 and 18 are alleged to have attacked one Bathala  

Hajarathaiah and one Thalluru Chinnaiah on 30th May, 1996  

resulting in the registration of Crime No.28/1996 against  

them.  On the same date at about 12.00 noon all the  

accused persons are alleged to have formed themselves  

into an unlawful assembly armed with deadly weapons like  

cart pegs and rods with the common object of killing the  

deceased left Nagulavellatur village in a tractor and trailor  

belonging to A-1 for Yerraballi village which is situate at  

some distance on the north eastern side of Nagulavellatur.  

The prosecution case is that the accused found the  

deceased coming along the garden of one Pendem  

Venugopal, got down from the tractor and attacked him.  

The deceased is alleged to have run for his life towards the  

West but the accused persons overpowered him and caused  

multiple injuries including fractures on his forearm and  

legs.  The incident is alleged to have been seen by PWs 1  

and 4 who informed PWs. 5 and 6 about the same.  PW6  

rushed to the scene of occurrence where he found the  

deceased lying in an injured condition.  On inquiry the  

deceased told him about the incident and the fact that the  

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accused had attacked and injured him using cart pegs and  

rods.  The deceased was shifted to Chejarla Police Station  

in a tractor where his statement was recorded by Sub-

Inspector of Police. The police then shifted the injured to  

the hospital at Nellore and registered Crime No.27 of 1996  

for offences under Sections 147, 148, 324, 307, 341 read  

with Section 149 IPC. In the course of investigation the  

police claimed to have seized nine cart pegs and one  

‘Bitchuva’  on the disclosure made by the accused. The  

deceased eventually died on 7th June, 1996 that resulted in  

the addition of Sections 148 and 302 read with Section 149  

IPC to the case already registered. The Court of Judicial  

First Class Magistrate, committed the case to the Court of  

Additional Sessions Judge, Fast Track Court at Nellore  

where the accused pleaded not guilty and claimed a trial.   

3. In support of its case the prosecution examined as  

many as 23 witnesses while the accused led no evidence in  

defence.  The Trial Court eventually came to the conclusion  

that the prosecution had failed to prove the charge of  

murder against the accused persons and accordingly  

acquitted all the accused persons of the said charges. The  4

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Court, however, convicted A-1, A-2 and A-4 for offences  

punishable under Section 326 IPC and sentenced them to  

undergo RI for a period of three years and a fine of  

Rs.500/- each, in default to further undergo SI for a period  

of three months each.

4. Aggrieved by the judgment and order passed by the  

Trial Court the appellants filed Criminal Appeal No.2241 of  

2004 while the State of Andhra Pradesh filed Criminal  

Appeal No.839 of 2007 against all the accused persons  

questioning their acquittal for offences with which they  

were charged at the trial.  Criminal Revision No.138 of  

2005 was filed by the complainant against the order of  

acquittal of accused persons.   

5. By the judgment and order under challenge in this  

appeal, the High Court has, while dismissing the acquittal  

Appeal and the criminal revision mentioned above, affirmed  

the conviction of A-2 and A-4 for the offence punishable  

under Section 326 IPC and the sentence of imprisonment  

for a period of three years awarded to them.  In so far as  

A-1 is concerned, the High Court has set aside the  

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conviction of the said accused and instead convicted him  

for an offence punishable under Section 324 IPC and  

sentenced him to undergo rigorous imprisonment for a  

period of one year and a fine of Rs.1,000/- and in default to  

undergo further imprisonment for a period of three months.

6. We have heard Mr. K.T.S. Tulsi, learned senior counsel  

for the appellant and Mr. V. Sridhar Reddy, counsel for the  

respondent-State who have taken us through the relevant  

portions of the two judgments of the Courts below and the  

evidence adduced at the trial.

7. The prosecution case rests primarily on the  

depositions of PWs 1 to 3, 4, 6, 11 and 12, apart from the  

statement of Dr. Krishnaiah (PW18) who happened to be  

the Civil Surgeon posted at the relevant time at  

Government Hospital at Nellore and Dr. C. Manohar (PW19)  

who conducted the post-mortem examination of the dead-

body of the deceased.   

8. The Trial Court has upon appreciation of the  

depositions of PWs 1 to 4 observed:

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“As seen from the evidence of P.Ws. 1, 2, 3 and 4  who claimed themselves as eye witnesses to the  incident it is clear that even though they depose that  they actually witnessed all accused attacking the  deceased it is clear from their evidence itself that when  once the attack on the deceased by accused  commences all these 4 (four) witnesses left that place  out of fear.

P.W.1 at para 2 made it clear that after seeing the  accused making an attempt to attack the deceased he  was frightened and on hearing the cries of Chowdary,  P.W.2, P.W.3 and P.W.4 came there and he started  running P.W.3 and P.W.2 started running towards  southern side and P.W.4 ran towards northern side of  the main road.

In the evidence of P.W.2 (1st page last line and 2nd  

page 5th line) it is said that P.W.2 out of fear ran away  from the place.

In the evidence of P.W.3 (page 2 to 15 lines) he  deposed that due to fear of accused he did not go to  rescue Demineni Chowdary and out of fear he (P.W. 3),  P.W.1, P.W.3 went to the village Yerraballi and  informed about the incident to the villagers of  Yerraballi.

In the evidence of P.W.4 (page 2, 15 to 19 lines)  she deposed that due to fear she ran towards main  road running from Chejerla to Kambampadu and in the  village she found K. Penchalaiah (P.W.9) and narrated  the incident to him.”

9. After discussing the evidence, the trial court concluded  

that PWs 1 to 4 were witnesses only to the initial attack  

made on the deceased and that the prosecution case  

mainly rested on the dying declaration made by the  

deceased before the Investigating Officer. The Court  

observed:

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“It is said in the earlier part of the judgment that  when the eye witnesses, P.W.1 to 4 are treated as the  persons who had only a chance to witnessing the initial  attack made on the deceased by accused and  immediately thereafter all these 4 (four) witnesses  leaving that place out of fear.  The case of prosecution  depends upon the statement of the deceased given to  P.W. 22 under Ex.P.25 and since Chowdary is no more,  the said statement can be used as a dying declaration  given to P.W.22.”      

10. The Court also recorded a finding that since the  

accused had caused injury only on the non-vital part of  

body of the deceased, there was no intention to do away  

with his life. The Court accordingly acquitted the accused of  

the charge of murder but convicted them for the offence  

punishable under Section 326 IPC while acquitting them of  

other charges framed against them.  

11. The High Court has, upon reappraisal of the evidence,  

affirmed the above finding and observed:

“It is true that learned Sessions Judge found that the  evidence of P.Ws. 1 to 4 as to the actual attack on the  deceased cannot be considered for the reasons from  their own evidence.  They have left the scene after  seeing the accused chasing the deceased and they  came only after the attack on the deceased.  The  positive evidence of the witnesses P.Ws. 1 to 4 is that  they have enquired with the deceased and the  deceased has given a statement to them as to the  assailants on him.  So far as the over tacts attributed  by the deceased in Ex.P25 is concerned, there is no  variation in the statements of P.Ws. 1 to 4 about the  attack on him by A1, A2 and A4.  Therefore, if Ex.P25  is to be considered as a document pressed into service,  

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the evidence of P.Ws. 1 to 4, who have immediately  gone to the scene after the injured received the injuries  in the attack, have clearly stated that they have made  enquiries.  Apart from it even if their evidence as to  actual attack is not believed by the lower court, the fact  remains that they were near the scene before attack  cannot be excluded because all of them have stated  that they have seen the accused going in the tractor  and the deceased being present near the scene.  In a  factious village naturally when such an attack is likely  to take place most of the persons who are disinterested  will be withdrawing from the scene and going away for  their own safety and therefore, there is no unnaturality  in P.Ws. 1 to 4 withdrawing from the scene and going  to the village and thereafter returning only after the  attack on the deceased.  The conduct of P.Ws. 1 to 4  cannot be said to be unnatural and there is no reason  to discard their evidence about the information given  by the deceased to them immediately after the attack  and within a short time and without there being any  influence on the deceased to implicate the accused.  Therefore, though there are some shortcomings in  recording of Ex.P25 since we find corroboration from  the evidence of P.Ws. 1 to 4 about the truthfulness  over the overtacts attributed to A1, A2 and A4 which  are relied on by the lower court from the evidence of  P.Ws. 1 to 4, we find that no appreciation of evidence  was done by the lower court and the lower court has  rightly accepted the statement of the deceased  Ex.P.25, which is corroborated by the evidence of P.Ws.  1 to 4.”

12. We do not see any infirmity or irregularity in the view  

taken by the High Court in adopting the above line of  

reasoning.  The fact that the witnesses had seen the initial  

attack on the deceased and returned to the scene of  

occurrence after the accused had made their escape good,  

to enquire from him as to what had happened is not  

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unnatural in the facts and circumstances of the case. In the  

absence of any compelling reason to the contrary we do not  

see any reason to interfere with the findings recorded by  

the High Court, as to the genesis of the incident and the  

persons responsible for the same. The prosecution has  

indeed failed to establish that the deceased eventually died  

on account of injuries sustained by him resulting in the  

acquittal of accused persons under Section 302 IPC, but  

that part of the order passed by the Courts below does not  

warrant rejection of the prosecution case in toto.  There is  

sufficient medical evidence on record, especially in the form  

of depositions of Dr. Krishnaiah (PW18) who noticed and  

certified the following injuries on the person of the  

deceased when he was brought to the hospital on 13th May,  

1996 at 6.45 p.m.:

“1. Patient semi conscious.  Responding to deep  stimulaus only.

2. Deformity and generalized tenderness of left  fore arm at its middle.

3. 2” long x 1” wide muscle deep lacerated wound  on lower 1/3rd of the left leg.  Bleeding present.

4. 1”  diameter punctured wound x ½”  deep on  middle of left leg.  Bleeding present.  

5. Diffused swelling of both ankle joints.

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6. Semi lunar lacerated injury on sole of left big  toe.  2 ½”  long x ½”  wide muscle deep.  Bleeding present.

7. 3”  long x ½”  wide muscle deep lacerated  wound in the web between right thumb and  index finger.  Bleeding present.

8. 3”  long x 2”  wide reddish contusion over left  buttock.

13. Even Dr. C. Manohar (PW19) who conducted the  

autopsy over the dead-body of the deceased has noticed  

the fracture of lower end of both tibia and fibula on both  

sides with bruising in the surrounding soft tissue and  

fracture of lower end of left fore arm bones with bruising in  

the left soft tissue. There is, thus, ample medical evidence  

to support the prosecution case that the deceased had  

sustained injuries no matter the same had not been proved  

to be the cause of his death a week later.  

14. Even on the question of sentence awarded to the  

appellants, we see no reason, much less a cogent one to  

interfere.  In our view the conviction of A2 and A4 under  

Section 326 with a sentence of three years and fine with a  

default sentence awarded by the Trial Court as also the  

conviction of A1 under Section 324 and sentence of one  

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year with a fine of Rs.1,000/- and in default imprisonment  

for three months in the circumstances of the case is  

perfectly justified.  

15. In the circumstances these appeals fail and are hereby  

dismissed.                                  

……………………….……..……J.        (T.S. THAKUR)

………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi May 10, 2012

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