Full Judgment Text
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PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
VEDDULA VEERA REDDY & ORS.
DATE OF JUDGMENT: 19/02/1998
BENCH:
M.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.P. KURDUKAR. J.
Cherukuri Sambaiah was an affluent person having lands
and house at village Pedda Makkana in Guntur District. He
had left behind three sons, two daughters and a widow.
Cherukuri Seetharamaswamy (A-1) is his third son whereas
Cherukuri Kalidas (since deceased) was his second son.
Appasani Vasumathi Devi (P.W.1) is one of the daughters of
Cherukuri Sambaiah who was married to Nageswara Rao of
village Takkellapadu. After the death of her husband she has
been residing at her parents house at Pedda Makkans.
Cherukuri Sambaiah during his life-time divided his
properties amongst his wife Cherukuri, Saraswathamma
(P.W.2). Cherukuri Kalidas (since deceased) was a doctor
having two wives, namely, Pushpavani and Tripuranani
Hemalatha (P.W.3) who are sisters. Cherukuri Kalidas and his
two wives went to Iran and stayed there for about ten years.
During his absence the property allotted to his share was
looked after by A-I. Cherukuri Kalidas returned to Guntur
from Iran five years before the incident that took place on
24.6.1991 and opened his clinic at Guntur. Cherukuri Kalidas
on his return used to go to his village Pedda Makanna
occasionally and took over the management of his property
from A-1. The mother of Cherukuri Kalidas and A-1 were
residing together in the village Pedda Makanna and her share
comprising of ten acres of land was also looked after by
him. Cherukuri Kalidas asked A-1 to furnish the account f
his properties in his possession during his stay at Iran.
This caused an ill-feeling between Cherukuri Kalidas and A-
1. The dispute between the two brothers was sought to be
resolved by the villagers but their efforts failed and
because of this the people of the said village were divided
into two groups. This acrimony also resulted into some
incidents between these two groups including the incidents
of throwing of bombs on each others which gave rise to the
registration of crimes against them as also proceedings
under Section 107 Cr.P.C.
2. On or about in the month of May 19.1991, a month prior
to the incident in question one Rangavali who was running a
private school died of heart attack and in that connection
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M. Boddu Sambasivarao, the sympathiser of the said lady
teacher filed report against A-1 alleging that he caused her
death by administering the poison. A-1 believed that he was
involved falsely in the said crime at the instance of
Cherukuri Kalidas and it was this belief that led to further
strained relation between them.
3. It is alleged by the prosecution that on 25.6.1991 at
about 6 p.m. Cherukuri Kalidas along with his wife
Tripuranani Hemalatha (P.W.3) came to Pedda Makkana on the
scooter. After taking dinner they went to sleep in their
room. Cherukuri Saraswathamma (P.W.2) the mother and
Tripuranani Hemalatha (P.W.3) the sister also went to sleep
in another room. A-1 was having his house adjacent to the
house of Cherukuri Kalidas. It is alleged by the prosecution
that during that night at bout 2 a.m. A-1 and his five
associated armed with deadly weapons entered into the room
where Cherukuri Kalidas was sleeping with his wife
Tripuranani Hemalatha (P.W.3). During the night an electric
bulb was also burning in the house. A-1 and his five
associates stated attacking Cherukuri Kalidas with deadly
weapons. When Tripuranani Hemalatha (P.W.3) got up, she
raised an alarm and tried to intervene but in vain. A-1 and
his associated also caused injuries to her. His sister
Appasani Vasumathi Devi (P.W.1) and Cherukuri Saraswathamma
(P.W.2), the mother, after hearing the cries of Cherukuri
Kalidas came to the room and found that A-1 and his five
associates were assaulting Cherukuri Kalidas and when they
tries to intervene they were also assaulted by these
assailants. P.W.1 and P.W.3 sustained bleeding industries
whereas Dr. Kalidas was found lying dead on the floor. The
deceased and the injured were thereafter removed to the
general hospital, Guntur for medical treatment. Cherukuri
Kalidas was declared dead and other injured persons were
referred to the experts for better treatment. Dr. D.
Veeraraju (P.W.16) sent an intimation to the IVth Additional
Munsif Magistrate. Guntur who came and recorded the dying
declaration (Exb. P-1) of Tripuranani Hemalatha (P.W.3). V,
Anjaneyulu (P.W.9), the Head Constable attached to the
Government General Hospital received an intimation about the
incident along with the copy of the dying declaration which
he forwarded to Kothapet Police Station. Samasivrao, the
Head Constable (P.W.10) registered the crime under Sections
147, 148, 324, 3.7 and 302 read with Section 149 IPC at
about 12 noon on 26.6.91 and transferred the same to SHO.
Sattenapalli Rural Police Station for investigation since
the jurisdiction vested in that police station. The crime
came to be registered accordingly at Sattenpalli Police
Station and the copies of the FIR were forwarded to the
concerned Magistrate and other police officers.
S.A. Rahaman (P.W.17), the Sub-Inspector of Police commenced
the investigation. A-4 to A-6 came to be arrested on
9.7.1991 whereas A-1 to A-3 were apprehended on 27.7.1991.
After completing the necessary investigation a charge-sheep
against the necessary investigation a charge-sheet against
these accused persons came to be filed before the Magistrate
at Guntur who committed the case to the Court of Sessions at
Guntur for trial.
4. The Learned Sessions Judge framed charges against A-1
to A-6 under Sections 120-B, 449, 148, 302, 307/149, 324/149
IPC. All the accused denied the charges levelled against
them and claimed to be tried. They pleaded that they were
innocent and they had been falsely implicated in the present
crime. To prove its case the prosecution examined as many as
19 witnesses of whom Appasani Vasumathi Devi (P.W.1),
Cherukuri Saraswathamma (P.W.2), and Tripuranani Hemalatha
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(P.W.3) were the eye witnesses. Apart from the ocular
evidence of these witnesses the prosecution also relied upon
documentary evidence including the post-mortem examination
report in respect of Cherukuri Kalidas (deceased) and the
injury certificates in respect of C. Saraswathamma (P.W.2)
and T. Hemalatha (P.W.3) issued by the doctors. Certain
other circumstances which were pointer to the guilt of the
accused were also relied upon by the prosecution. A-1 to A-
6, however did not lead any evidence and test contended on
their statements recorded under Section 313 Cr.P.C..
5. The learned trial judge after very careful scrutiny of
the oral and documentary evidence on record by his judgment
and order dated 5.4.1995 held that the prosecution failed to
prove beyond reasonable doubt the complicity of A-6 and
accordingly acquitted him of all the charges. The learned
trial judge, however found the prosecution evidence
acceptable against A-1 to A-5 and accordingly convicted them
under Sections 449, 302/149 and 326/149 IPC. A-1 was also
convicted under Section 324 IPC for causing hurt to
Appasani Vasumathi Devi (P.W.1) and Cherukuri Saraswathamma
(P.W.2) with a knife. Having recorded the above convictions
the learned trial judge sentenced A-1 to A-5 to suffer
imprisonment for life for the offence punishable under
Section 302/149 IPC and also sentenced each one of them to
various terms of imprisonment on other counts. All
substantive sentences were ordered to run concurrently.
6. Being aggrieved by the order of conviction and sentence
passed by the trial court Vaddula Veera Reddy (A-2) and
Vaddula Vema Reddy (A-3) preferred Criminal Appeal No.290/95
whereas Cherukuri Seetharamaswamy (A-1) and Ramasani Hari
Babu (A-4) and Ramasani Sankrarao (A-5) preferred Criminal
Appeal No.332 of 1995 to the High Court of Andhra Pradesh at
Hyderabad. Since both the appeals arose out of a common
judgment, the High Court heard them together; and vide its
common judgment and order November 22, 1995 allowed the
appeals partly. While setting aside the order of conviction
of A-1 under Section 302/149 IPC it convicted him for an
offence punishable under Section 304 Part-I IPC simpliciter
and sentenced him to suffer RI for eight years. In upholding
the conviction of A-1 under Sections 449 and 324 IPC the
High Court sentenced him to suffer RI for two years and one
year respectively. As far as A-3 and A-4 are concerned their
conviction and sentence under Section 302/149 IPC were sat
aside and in its place they were convicted under Section
326/149 IPC and sentenced each one of them to undergo RI
for four years. While upholding the conviction of these two
accused under Section 449 and 324 IPC the High Court
sentenced both of them to undergo RI for two years and one
year respectively. The High Court found A-2 and A-5 not
guilty of any offence and accordingly acquitted them of all
the charges. The substantive sentences awarded to A-1, A-3
and A-4 were ordered to run concurrently.
7. The State of Andhra Pradesh aggrieved by the judgment
and order passed by the High Court filed Criminal Appeal
Nos. 1631-32/92 by Special Leave. Criminal Appeal Nos.1633-
34/96 by Special Leave are filed by Cherukuri
Seetharamaswamy (A-1), Vaddula Vema Reddy (A-2) whereas
Ramasani Hari Babu (A-4) filed Criminal Appeal No. 324 of
1997 in this Court by Special Leave challenging their order
of conviction and sentence passed by the High Court.
8. It may be stated that the State of Andhra Pradesh did
not challenge the order of acquittal of Sanikommu Sambi
REddy (A-6) passed by the trial court and, therefore, the
said order f acquittal has become final. Since these appeals
arise out of a common judgment rendered by the High Court
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they are being disposed of by this judgment.
9. We may first deal with the appeals filed by the State
of A.p.. which would decide the fate of other two sets of
Criminal Appeals filed by the accused/appellants. We have
very carefully gone through the judgment of the courts below
as well as the oral and documentary evidence on record. We
have heard the learned counsel for the parties at great
length and in our considered opinion the High Court has
committed a serious error while acquitting A-1 to A- of the
offence punishable under Section 302/149 IPC and convicting
A-1 under Section 304 Part -I IPC and A-3 and A-4 under
Section 326 IPC.
10. We may presently point out how the High Court has
recorded inconsistent and unsustainable findings. t the
outset it needs to be stated that there was no challenge to
the fact that Cherukuri Kalidas died a homicidal death as a
result of several injuries sustained by him during the
incident in question. He died on the spot. The evidence of
Appasani Vasumathi Devi (P.W.1) and Cherukuri Saraswathamma
(P.W.2) the sister and the mother of A-1 respectively.
Unmistakably proved that A-1 to A-5 tresspassed into the
room at 2.00 a.m. on 26.6.1991 deadly weapons where
Cherukuri Kalidas was sleeping with his wife. The actual
assault was witnessed by his wife Tripuranani Hemalatha
(P.W.3) and she has stated all necessary details about the
assault caused by A-1 to A-5. Her evidence was supported by
mother and sister of A-1. The evidence of these three
witnesses unmistakably indicates that Cherukuri Kalidas died
on the spot because of several injuries caused by A-1 to A-
5. This evidence finds support from the medical evidence of
Dr. K. Mahipal Reddy (P.W.15) who performed the autopsy on
the dead body. In the teeth of this conclusive evidence in
our view the High Court was totally unjustified in altering
the nature of offence and convicting A-1 for an offence
punishable under Section 304 Part - I. The reasons recorded
by the High Court in its judgment in this behalf are as
under:
"To connect a person to the
offence alleged, the nature of
evidence should be clear, cogent
and convincing free from doubts,
inconsistancies and
improbabilities. As far as the part
played by A-1 is concerned, we have
to agree with the finding of the
learned Sessions Judge that he was
responsible for causing death of
the deceased. But the point is
whether his role to be brought
within the ambit of Section 302
I.P.C. or any other Section. The
part played by him as per the
evidence of the witnesses comes
within the ambit of Section 304 (1)
of I.P.C. As far as the part played
by A-3 and A-4 are concerned, since
the findings are that their role
resulted in grievous hurt on the
body of the deceased and simple
//injuries on other witnesses i.e.
P.W.1 to 3. But the same does not
disclose any common intention along
with A-1. Hence they are not liable
to be punished under Section 302
I.P.C. or Section 304-I of IPC, but
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under Section 326 of I.P.C.
Since, we have reached the
above conclusion, the conviction
and order passed by the learned
Sessions Judge against accused 1 to
5 deserves to be set-aside. Hence,
the same is set aside and in their
placed the following order is
passed:
The Criminal Appeals are
allowed. So far as A-1 is
concerned, the conviction and
sentence passed by the learned
Sessions Judge, Guntur are set
aside and he is convicted for an
offence punishable under Section
304 Part-I of I.P.C. and sentenced
to undergo rigorous Imprisonment
for a period of eight years. he is
also convicted for an offence
punishable under Section 450 of
I.P.C. and sentenced to undergo
Rigorous Imprisonment for a period
of two years. He is also convicted
for an offence punishable under
Section 324 IPC and sentenced to
undergo Rigorous Imprisonment for a
period of one year. It is ordered
that these sentences shall run
concurrently.
So far A-3 and A-4 are concerned,
the conviction and sentence passed
by the learned Sessions Judge,
Guntur the same are set aside and
in its placed they are convicted
for an offence punishable under
Section 326 of I.P.C. and sentenced
to undergo Rigorous Imprisonment
for a period of four years. They
are also convicted for an offence
punishable under Section 450 of IPC
and sentenced to undergo Rigorous
Imprisonment for a period of two
years. Further, they are also
convicted for an offence punishable
under Section 324 of I.P.C. and
sentenced to under go Rigorous
Imprisonment for a period of one
year. It is ordered that these
sentences shall run concurrently".
11. In the preceding paragraph of its judgment the High
Court has referred to the evidence of eye witnesses and
curiously observed that assuming if their evidence is
acceptable it would only show that A-1, A-3 and A-4 have
caused injuries on various parts of the body of Cherukuri
Kalidas (deceased) but they had no common intention to cause
injuries which would result into his death. The entire
premiss of the discussion of the evidence of Appasani
Vasumathi Devi (P.W.2) and Tripuraneni Hemalatha (P.W.3)
made by the High Court was totally contrary to the evidence
of these eye witnesses. The most important circumstance
which the High Court lost sight of was that at the dead
hours of the night A-1 to A-5 tresspassed into the room with
deadly weapons where Cherukuri Kalidas was sleeping. What
could be their common object ? Can it not be absolute
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certainty inferred from the proved facts that they (accused)
were members of an unlawful assembly who came together at
the dead hours of the night with the deadly weapons shared a
common object of assault Cherukuri Kalidas and in Pursuance
thereof assaulted him resulting into his instantaneous death
? Answer has to be in the affirmative. A-1 to A-5 were
identified not only by Tripuranani Hemalatha (P.W.2) and
Appasani Vasumathi Devi (P.W.1) mother and sister
respectively of A-1. Despite such convincing, cogent and
satisfactory evidence on record the High Court held that the
prosecution has failed to establish a common intention on
the part of A-1 to A-5 to commit the murder of Cherukuri
Kalidas and also to cause injuries to Cherukuri
Saraswathamma (P.W.2) and Tripuranani Hemalatha (P.W.3). The
finding of the High Court in this behalf is beyond the
comprehension of a prudent man. The further finding that A-1
to A-5 did not share common intention while causing a
murderous assault on Cherukuri Kalidas is equally wrong. The
High Court has totally overlooked the evidence of eye
witnesses which has proved the common object of the Unlawful
assembly of which A-1 to A-5 were members, attracting the
provisions of Section 149 IPC and in pursuance thereof
committed the murder of Cherukuri Kalidas. As against this
the learned trial judge in its exhaustive and well reasoned
judgment had very carefully scrutinized the evidence of
Appasani Vasumathi Devi (P.W.1). Cherukuri Saraswathamma
(P.W.2) and Tripuranani Hemalatha (P.W.3) in a proper
perspective and had rightly concluded that A-1 to A-5 shared
a common object while committing the tresspass into the room
of Cherukuri Kalidas to assault him with the deadly weapons
which common object they (accused) carried out. Cherukuri
Saraswathamma (P.W.2) and Teripuranani Hemalatha (P.W.3) are
the injured witnesses of whom the former is the mother and
latter the wife. They tried to intervene during the assault
on Cherukuri Kalidas but they were also not spared by A-1 to
A-5 who caused serious injuries to them as would be evident
from the medical evidence on record. On the face of such
conclusive material on record we are surprised that the High
Court observed that the prosecution has failed to establish
a common intention to commit the murder of Cherukuri
Kalidas. The finding of the High Court in this behalf to say
the least is totally unsustainable.
12. The learned counsel for the accused vehemently urged
that the alleged incident took place during the night and it
was impossible for any of the eye witnesses to identify the
accused/appellants. The eye witnesses have roped in the
accused/appellants because of the enmity. Moreover these eye
witnesses are the close relatives of the deceased and,
therefore, it would not be safe to accept their evidence on
the issue of identity of A-1 to A-5. We see no substance in
any of these contentions. In the absence of any material on
record it is difficult to reject or to discount in any
manner the evidence of Tripuranani Hemalatha (P.W.3).
Cherukuri Saraswathamma (P.W.2) is the mother of A-1 and she
had no axe to grind against her own son (A-1) and other
accused. After going through the evidence of there three
witnesses we are satisfied that their evidence suffers from
no infirmity whatsoever and the trial court had committed no
error in convicting A-1 to A-5 under Section 302/149 IPC
and also on other counts. The High Court in a very
perfunctory manner has considered the evidence of the eye
witnesses and thereby committed a gross error in acquitting
A-1 to A-5 of the offence punishable under Section 302.149
IPC. The judgment of the High Court is thus unsustainable
and stands set aside.
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13. In the result Criminal Appeal Nos. 1631-32 of 1996
filed by the State of A.P. are allowed. Criminal Appeal Nos.
1633-34 of 1996 and 324 of 1997 filed by A-1, A-3 and A-4
are dismissed. The judgment and order dated 5.4.95 passed by
the Additional Sessions Judge, Guntur is restored. If any of
the accused is on bail he shall surrender to his bail bond
forthwith to serve but the remainder of his sentence.