Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 25 of 2007
Chakali Maddilety & Ors. …Appellants
Versus
State of Andhra Pradesh …Respondent
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This appeal has been preferred against the judgment and
order of the High Court of Andhra Pradesh at Hyderabad,
dated 9.3.2004, by which it has dismissed Criminal Appeal
No. 289 of 2002, affirming the judgment and order dated
12.2.2002 passed by the Sessions Court, Kurnool in Sessions
Case No. 830/1999, convicting the appellants under Sections
302 and 148 of the Indian Penal Code, 1860 (hereinafter called
as “IPC”) and sentencing them to undergo life imprisonment
and one year R.I. respectively.
2. Facts and circumstances giving rise to this appeal are
that accused (A1 to A7) and Harijana Ayyanna (hereinafter
called as “deceased”) were residents of village G. Singavaram.
On 8.2.1999 at about 7.30 PM, the deceased along with his
wife Harijana Ayyamma (PW.2) and son, Harijana
Ramakrishna (PW.1) went to the clinic of Dr. Ramana for
treatment of Harijana Ayyamma (PW.2) and while they were
coming back and reached near the house of Anjaneya Goud at
about 8.00 p.m., accused (A1 to A7) suddenly appeared on the
spot. A1, A3, A5, A6 and A7 were armed with daggers and A2
was armed with a stick. They surrounded the deceased and
his son Harijana Ramakrishna (PW.1). A1 abused the
deceased and stabbed on his back with a dagger causing
injuries and then A2 to A7 carried the deceased towards the
mosque and threw him on the road near it. A1, A3, A5, A6 and
A7 stabbed the deceased on his chest, stomach and back with
daggers. A2 beat the deceased with a stick and A4 caused
injury on his head with a stone. Harijana Ramakrishna (PW.1)
and Harijana Ayyamma (PW.2) made hue and cry as a result of
which Harijana Sekhar (PW.3), P. Muniswamy (PW.4) and A.
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Samuel (PW.5) reached the place of occurrence and all the
accused fled away from there. PWs. 1 to 5 took the deceased
in a vehicle to the Government Hospital, Kurnool, however, he
succumbed to the injuries at about 9.30 p.m. Harijana
Ramakrishna (PW.1), son of the deceased filed the F.I.R. (Ext.
P-1) in Kurnool Taluk Police station and Crime No.16 of 1999
was registered. T.Naganna (PW.9), the Investigating Officer
drew up the panchanama of the scene of offence and held an
inquest on the dead body at the hospital in presence of
witnesses Molakapogu Daveedu (PW.6) and Molakapogu
Harijana Pakkiranna (PW.7) and the dead body was sent for
post mortem. In the post mortem report, Dr. L.C. Obulesu
(PW.10) found 13 ante-mortem injuries on the body of the
deceased. After completing the investigation, T. Naganna
(PW.9) filed the charge sheet against the accused persons and
they were put to trial.
3. The learned Sessions Judge, Kurnool, after conclusion of
the trial, found A1, A3, A5, A6 and A7 guilty of offences
punishable under Sections 148 and 302 IPC. They were
sentenced to life imprisonment and a fine of Rs.1,000/- each
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for an offence punishable under Section 302 IPC and one year
RI and fine of Rs.500/- each for an offence punishable under
Section 148 IPC. However, both the sentences were directed to
run concurrently. The Court acquitted A2 and A4 of all the
charges.
4. Being aggrieved, the appellants preferred Criminal Appeal
No.289 of 2002 before the High Court, which has been
dismissed vide impugned judgment and order dated 9.3.2004.
Hence, this appeal.
5. Shri R. Sundaravaradan, learned senior counsel
appearing for the appellants, has submitted that in view of the
evidence of alleged eye-witnesses, namely, Harijana
Ramakrishna (PW.1) and Harijana Ayyamma (PW.2), two
accused namely, Chakali Krishna (A2) and Chakali
Sreenivasulu (A4) had been acquitted by the Trial Court.
Harijana Sekhar (PW.3) and Muniswamy (PW.4) and A. Samuel
(PW.5) had been disbelieved by the Trial Court. Molakapogu
Daveedu (PW.6) and Molakapogu Harijana Pakkiranna (PW.7)
turned hostile and did not support the prosecution. In fact,
A2 and A4 had caused fatal injury No.1 on the head. In such
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a fact-situation there was no occasion for the courts below to
convict the appellants. More so, it is nobody’s case that all the
accused persons came with deadly weapons. Therefore, the
question of application of the provisions of Section 148 IPC
could not arise. The entire incident occurred in two parts.
First, the deceased was hit near the house of Anjaneya Goud
and a second time, when as alleged, the appellants caused
serious injuries after taking the deceased in injured condition
near the mosque. In case there is no evidence that all the
appellants were armed with weapons at the time of the first
part of the incident, in absence of any evidence that they had
been supplied the arms by somebody else in between, question
of causing serious injuries in the second part stands falsified.
Had the incident been as alleged by the prosecution, at least,
Harijana Ramakrishna (PW.1), son of the deceased, as he was
24 years of age, could have intervened and made attempt to
protect his father. The incident occurred in a residential area,
no independent witness was examined. All these factors have
not been considered by the courts below in correct perspective.
Therefore, the appeal deserves to be allowed.
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6. On the contrary, Shri Anoop G. Choudhari, learned
senior counsel appearing for the State, has submitted that two
courts have recorded concurrent findings of fact. The Trial
Court had an opportunity to examine the demeanour of the
witnesses and assess their credibility. The Trial Court, after
assessing the evidence on record, reached the conclusion that
A2 and A4 had falsely been enroped in the crime. Therefore,
they had been acquitted. However, on the basis of the
depositions of Harijana Ramakrishna (PW.1) and Harijana
Ayyamma (PW.2) the appellants have been convicted and the
High Court has affirmed their conviction. The findings of fact
as recorded by the courts below cannot be held to be so
perverse as to warrant interference by this Court. Had
Harijana Ramakrishna (PW.1), the son of the deceased tried to
intervene and protect the deceased, there was a possibility of
receiving grievous injuries or he could have also faced death
at the hands of the appellants. The FIR has been lodged
promptly. Appellants were known to the complainant. They
had been named in the FIR. In such a fact-situation, appeal
lacks merit and is liable to be dismissed.
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7. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
8. Admittedly, FIR was lodged promptly within a period of 2
½ hours, though, the distance between the place of occurrence
and the police station was about 15 kms. All the appellants
had been named therein. As per the post mortem report,
following 13 ante-mortem injuries were found on the dead
body of the deceased:-
“1. Lacerated wound on right side head,
back part of parietal area. Obliquely
placed 7 x 1 ½ cms x scalp layer deep
with a fracture of left parietal bone 13 cms
in width, contusion of brain with fracture
of base of skull in mid cranial fossa 12
cms in length.
2. Incised wound on right eye-brow 4 x
1 cms x bone deep.
3. Stab wound on front of right side
chest right nipple. Oblique, 4 ½ x 1 ½ cms
th
x chest cavity deep cutting the 4 rib.
4. Stab wound on left side chest below
left nipple obliquely 4 ½ x 1 ½ cms x chest
th th
cavity depth cutting ribs 4 and 5 .
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5. Stab wound on front of right upper
abdomen outer part 4 x 1 ½ cms x
abdomen deep, cutting the intestines.
6. Stab wound on front of left side
abdomen, near the midline, oblique, 4 ½ x
1 ½ cms x abdomen cavity deep, cutting
the liver.
7. Incised wound on back of left upper
are near the shoulder 4 x 1 ½ cms x 3 cms
muscle deep.
8. Abrasion with contusion on the back
of left elbow and fore-arm 6 x 4 cms red in
colour.
9. Incised would on outer part of left leg
near the knee 4 x 1 ½ cms x bone deep.
10. A stab wound on upper part of right
buttock 4 ½ x 1 ½ x 5 cms muscle deep.
11. A stab wound on the back of chest
upper part, near the spine upper thoracic
4 ½ x 1 ½ cms x vertebra deep.
12. Stab injuries 4 in number on the
back of middle of chest 2 on right side of
thoracic spine, 2 on left side measuring 4
x 1½ cms, 4 ½ x 1 cms, 4 ½ x 1 ½ cms, 4
½ x 1 cms chest cavity deep.
13. Stab wound on back left side chest
lower and outer part obliquely 4 ½ x 1 ½
cms x chest cavity the ribs and injured the
left side lung tissues.
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As per the medical evidence the cause of death was shock
and hemorrhage due to multiple injuries.
9. The Trial Court, after appreciating the evidence on
record, came to the conclusion that the FIR had been lodged
most promptly and all the appellants were named therein. An
earlier incident had occurred on 4.11.1998 between the
deceased and A1 & A5, thus the deceased was inimical to
them. Harijana Sekhar (PW.3), Muniswamy (PW.4) and
A.Samuel (PW.5) came to the spot after hearing the hue and
cry made by Harijana Ramakrishna (PW.1) and Harijana
Ayyamma (PW.2), thus they could not be eye-witnesses of the
actual incident. Therefore, the Trial Court brushed aside their
depositions. Molakapogu Daveedu (PW.6) and Molakapogu
Harijana Pakkiranna (PW.7), who were the witnesses of
inquest on the dead body, were declared hostile and, therefore,
they did not support the case of the prosecution. The Trial
Court came to the conclusion that in spite of the fact that
Harijana Ramakrishna (PW.1) and Harijana Ayyamma (PW.2)
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were family members of the deceased and a dispute had arisen
on 4.11.1998, few days before the incident, between the
deceased and Chakali Maddilety (A1) and Chakali
Lakshmanna (A5), though there may be a possibility to enrope
some persons falsely, the question of leaving the real culprits
for causing the death of the deceased out of the FIR could not
arise. All the persons involved in the case were from the same
village. There was no contradiction in the version in the FIR
and the statement under Section 161 of Code of Criminal
Procedure, 1973, of PW.1 and PW.2 and the case also stood
corroborated by the medical evidence. Therefore, the Trial
Court acquitted Chakali Krishna (A2) and Chakali
Sreenivasulu (A4) in view of the fact that there was no
evidence of the deceased being hit by stone and stick. The
depositions of close relatives cannot be discarded merely
because they are relatives, but their evidence has to be
considered with due care and caution. In a case like this,
independent witnesses may not come forward to depose, as
out of fear, people prefer to run away from the place of
occurrence and avoid witnessing the crime, but that does not
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mean that the case can be discarded only on the ground of
non-examination of independent witnesses of the locality.
10. The Trial Court considered the application of Section 148
IPC elaborately and held:
“With regard to participation of A1, A3, A5
to A7, PW1, PW2 who are the eye witness
who actually witnessed the incident
specifically stated that A1 and A3, A5 to
A7, formed into an unlawful assembly to
commit rioting and A1 stabbed Ayyanna
on his back with a dagger at first place of
occurrence itself. The medical evidence of
PW10 who conducted P.M. examination
over the dead body of deceased also
shows that he found an incised wound on
the back of left upper arm near the
shoulder 4 x 1 ½ cms muscle deep in size
under injury No. 1. So, the injury No. 7
mentioned in Ex. P14 P.M.report is the
injury said to have caused on the back of
deceased by A1 with dagger. Therefore,
the medical evidence is totally
corroborating the ocular testimony PW1,
PW2 with regard to stab injury caused on
the back of deceased by A1 in front of the
house of Ediga Anjhaneyulu Goud. In
Ex.P1 complaint also, PW1/complainant
specifically mentioned, that A1 stabbed
the deceased on back with a dagger
pushing him aside and his mother (PW2)
aside. Therefore, basing on the consistent
evidence of PW1, PW2 coupled with
medical evidence of PW10 and Ex. P14 it
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can safely be held that A1, A3, A5 to A7
formed into an unlawful assembly to
commit rioting against Ayyanna, in
prosecution of common object, A1 stabbed
Ayyanna (deceased) thereby A1, A3, A5 to
A7 committed the offence punishable
under Sec. 148 of IPC. Accordingly, they
are liable to be convicted.
nd
Regarding 2 incident of murderous
assault against Ayyanna (deceased) PW1,
PW2 specifically deposed that all the
accused stabbed Ayyanna (deceased)
indiscriminately. In such case, it is very
difficult to attribute any specific overt acts
against any of the accused. The overt
acts theory cannot be applied, when more
number of persons stabbed a single
individual indiscriminately. The medical
evidence under Ex.P14 and oral evidence
of PW10 also lending support to the ocular
testimony of PW1, PW2. The P.M. Doctor
PW10 found as many as 13 injuries, out
of the said injuries, injury No. 2 to 7 and 9
to 13 are stab and incised wound with
similar measurements. Therefore, all the
above injuries 2 to 7 and 9 to 13 could
have been caused with same type of
weapon and said fact was spoken by
PW10 in his evidence.”
Thus, the case to the extent that the appellants stabbed the
deceased with dagger and knife stood proved.
11. The High Court considered the issue of application of
Section 148 IPC and observed:
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“The first issue that arises for consideration is
whether the offence under Section 148 IPC is made
out against the accused. The evidence of PWs. 1 and
2 clearly establishes that the accused, who were in
inimical terms with the deceased and PW.1, were all
at the scene on the night of the incident and they
have virtually encircled them duly armed with
daggers and stick. It is also the evidence of PWs 1
and 2 in categorical terms that the accused even
gave blow with the daggers on the back of the
deceased and thereafter they lifted the deceased
bodily and took him near the mosque by which time
on account of the cries of PWs. 1 and 2, PWs. 3 to 5
came at the scene. Under those circumstances the
finding of the learned Ist Additional District and
Sessions Judge, Kurnool that the offence under
Section 148 IPC established, cannot be found fault
with.”
12. We have been taken through the evidence of Harijana
Ramakrishna (PW.1) and Harijana Ayyamma (PW.2) and they
had been consistent that the accused were armed with daggers
and knives. They encircled the deceased and Harijana
Ramakrishna (PW.1) and caused injuries to the deceased.
Their version stands fully corroborated by the medical
evidence. Thus, we do not find any cogent reason to interfere
with the concurrent findings of fact on this issue. The
Submission made by Shri Sundaravaradan, learned senior
counsel, has no merit and thus not worth acceptance.
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On other issues both the courts below have considered
the submissions made by the defence and rejected them. We
are in full agreement with the said findings of fact.
13. In view of the above, we are of the considered opinion
that the present case does not warrant any review of the
judgments and orders of the courts below. The appeal lacks
merit and is accordingly dismissed.
…………………………….J.
(P. SATHASIVAM)
……………………..……..J.
New Delhi, (Dr. B.S. CHAUHAN)
August 16, 2010
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