1 KSR, J and SRK,j Crl.A.No.859 of 2015 IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT THE HON’BLE SRI JUSTICE K.SURESH REDDY AND HON’BLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL APPEAL NO: 859 of 2015 J U D G M E N T Accused Nos. 2 to 10, in Sessions Case No.311 of 2011 on the file of the Court of VI Additional District and Sessions Judge, Prakasam District at Markapur, are the appellants in the present Criminal Appeal. They along with A1 were tried by the learned Additional Sessions Judge under the following charges. 1) First charge under Section 147 IPC against A1 to A10. 2) Second charge under Section 302 IPC against A1 and A2. 3) Third charge was framed under Section 302 IPC against A3. 4) Fourth charge was framed under Section 302 r/w 149 IPC against A4 and A5. 2 KSR, J and SRK,j Crl.A.No.859 of 2015 5) Fifth charge was framed under Section 326 IPC against A4 and A5 for causing injuries to P.W.2 6) Sixth charge was framed under Section 326 IPC against A2 for causing injuries to P.W.4. 7) Seventh charge was framed under Section 302 IPC against A6 to A8. 8) Eighth charge was framed under Section 302 IPC against A9 and A10 and 9) Last charge was framed under Section 324 IPC against A4 for causing injuries to P.W.1 2. Substance of the charge is that on 28th December, 2010 at about 7.00 a.m. A1 to A10 formed into an unlawful assembly armed with deadly weapons and caused the death of Kurukundu Srinivasulu @ Sreenu and Kurukundu Chinna Venkataiah (herein after referred to as „D1‟ and „D2‟ respectively) and caused injuries to P.Ws. 1, 2 and 4, thereby committed offences punishable under Sections 147, 302, 302 r/w 149, 326 and 324 IPC. 3. During pendency of the trial A1 died and, therefore, the case against him stood abated. As such, A2 to A10 were tried by the learned Additional Sessions Judge. 4. After completion of trial, the learned Additional Sessions Judge found A2 to A10 guilty under Section 302 r/w 149 IPC and 3 KSR, J and SRK,j Crl.A.No.859 of 2015 sentenced each of them to undergo Imprisonment for “LIFE” and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for three (3) months each. The learned Additional Sessions Judge further found A2 to A10 guilty under Section 147 IPC and sentenced each of them to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for three (3) months each. The learned Additional Sessions Judge also found A2 guilty under Section 326 IPC and sentenced him to undergo Rigorous Imprisonment for a period of four (4) years and also to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three (3) months. The learned Additional Sessions Judge further found A3 to A5, A9 and A10 guilty under Section 324 IPC and sentenced each of them to undergo Rigorous Imprisonment for a period of one year and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for three (3) months each. The learned Additional Sessions Judge directed all the substantive sentences imposed upon the accused shall run concurrently. 5. During pendency of the present Criminal Appeal, A7 and A8/appellants 6 and 7 died and appeal against them stood abated and the said fact is not disputed by the learned Additional Public Prosecutor in view of post-mortem reports filed as they died while 4 KSR, J and SRK,j Crl.A.No.859 of 2015 undergoing imprisonment in Central Jail. So far as the appellants No.2,4,8 and 9/A3, A5, A9 and A10 are concerned they have been released by the Government by granting Special Remission vide G.O.Ms.No.142, (Home Paroles & HBC Department), dated 28.11.2020 on the occasion of the Independency Day, 2020. A memo was filed to that effect annexing the above said Government Order. The said fact is also not disputed by the learned Additional Public Prosecutor as it is borne out by record. As such, the present Appeal is taken up insofar as the appellant No.1/A2, appellant No.3/A4 and the appellant No.5/A6 herein. 6. Case of the prosecution, as emanated from the evidence of the prosecution witnesses, is as follows: All the accused and the material prosecution witnesses are residents of Ammavaripalli Village, Markapur Mandal, Prakasam District. D1 and D2 were also residents of the same village. A1, A2, A4, A6 and A7 are the sons and A3 and A5 are the daughters of A8 and A9. A10 is the wife of A2. D1 is son of D2. D2 is brother of A8. P.W.2 is the wife of D2. P.Ws.5, 6, 7 and 10 are the sons of P.W.1. P.W.2 and A9 are sisters. P.W.4 is the wife of D1. As such, all the accused and deceased are closely related to each other. (ii) There were ill feelings between the families of both the deceased and the accused with regard to sharing of land and 5 KSR, J and SRK,j Crl.A.No.859 of 2015 properties since long time. On 27.12.2010, at 7.00 a.m., the sons of A8 i.e. A4 and Kurukundu Venkat Rao entered into the fields of P.W.1 and set fire to haystack. P.W.10 who was watching paddy bags noticed them, chased them and beat Kurukundu Venkat Rao. Then, A1 and A4 went to the house of P.W.1 and beat P.W.10 and also abused his mother-P.W.8. Both parties went to Markapur Rural Police Station and gave reports against each other. Case and counter case was registered against both the groups under Crime Nos.129 of 2010 and 130 of 2010 of Markapur Rural Police Station. (iii) While so, on 28.12.2010, at about 7.00 a.m., when P.W.1 and D1 were cleaning their cattle shed, A1 to A10 armed with axes, sticks and spears went there. On seeing them, P.W.1 and D1 started running towards main road and reached near the house of P.W.9. All the accused chased them. A1 hacked D1 with an axe on his left leg. A2 stabbed D1 with spear on the left side below the chest. On seeing commotion, D2 and his wife-P.W.2, P.W.4-wife of D1 and P.W.1 came there and tried to rescue D1. A5 beat P.W.2 on her head with a stick. A1 hacked P.W.2 with an axe on her right elbow. A4 hacked P.W.2 with an axe on the left side of the head. A2 hacked P.W.4 with an axe on her head. A6 poked D1 with a spear on his left hip. A7 hacked D1 with an axe on his left forearm. A4 beat P.W.1 with an axe on his head. A9 and A10 beat D1, D2, P.Ws.2 and 4 with 6 KSR, J and SRK,j Crl.A.No.859 of 2015 sticks indiscriminately who fell on the ground. A2 beat P.W.2 with a long stick on her head. D1 died instantaneously. On information given by villagers, 108 ambulance came to the village, in which D2, P.Ws.2 and 4 were shifted to Government Hospital, Markapur. (iv) P.W.33-Civil Assistant Surgeon, Area Hospital, Markapur, treated P.W.2 and issued a Wound Certificate-Ex.P26. He opined that the injuries received by P.W.2 are simple in nature. P.W.39- Medical Officer, Guntur City Hospital, Guntur treated P.W.4 and issued Wound Certificate-Ex.P36. He opined that the injuries received by P.W.4 are grievous in nature. P.W.40-Medical officer, Area Hospital, Markapur, treated P.W.1 and issued Wound Certificate-Ex.P37. He opined that the injuries received by P.W.1 are simple in nature. (v) On the same day, at about 9.00 a.m., P.W.1 went to the police station and gave a report to the police. P.W.42-Inspector of Police, Markapur Rural Police Station received Ex.P1-report from P.W.1 and registered a case in Crime No.131 of 2010 for the offences under Sections 147, 148, 302, 307 and 324 r/w 34 IPC and issued copies of FIRs to all the concerned. Ex.P39 is the copy of FIR. (vi) P.W.43- Inspector of Police, having received the copy of FIR from P.W.42, took up investigation. He along with P.W.42 and 7 KSR, J and SRK,j Crl.A.No.859 of 2015 staff went to Ammavaripalli village and found the dead body of D1 with severe injuries lying on the C.C. road. He got the scene photographed through P.W.34. Bunch of photographs are marked as Ex.P27. He also prepared rough sketch-Ex.P40 at the scene of offence. He also prepared observation report-Ex.P28 and seized Mos.3 to 7 at the scene of offence. P.W.43 held inquest over the dead body of D1 in the presence of P.Ws.35 and others under Ex.P29. At the inquest, he recorded statements of P.Ws.3, 5, 16 and 17. He also seized blood stained sweater (MO.12) of P.W.1 under a panchanama. He also seized turkey towel (Mo.13) of D2 under a cover of panchanama-Ex.P41. He sent the dead body of D1 to Government hospital, Market for post-mortem examination. On the same day, he recorded the statement of P.W.2 at the hospital. He seized blood stained saree (MO.1) of P.W.2 under a panchanama- Ex.P42. (vii) On the same day, P.W.32-Civil Assistant Surgeon, Markapur, conducted autopsy over the dead body of D1. He opined the cause of death was due to perforating injury to the left lobe of the liver and stomach with haemorrhagic shock. He issued post-mortem certificate-Ex.P24 pertaining to D1. Thereafter, P.W.43 visited Ammavari palli Village and recorded statements of P.Ws.8, 9, 12 to 8 KSR, J and SRK,j Crl.A.No.859 of 2015 15, 18, 19 and 24. Thereafter he seized blood stained clothes of D1 under Ex.P43-panchanama, which were marked as Mos.14 to 16. (viii) On 28.12.2010 P.W.37, the then A.S.I. of Police, Markapur Rural Police Station went to the Government Area Hospital, Markapur and recorded statement of D2 under Ex.P34. While undergoing treatment, D2 succumbed to injuries on 29.12.2010. Having received death intimation, P.W.43 directed P.W.42 to conduct inquest over the dead body of D2. Accordingly, P.W.42 conducted inquest over the dead body of D2 in the presence of P.W.13 and others under Ex.P23. (ix) On 30.12.2010, P.W.38 –Assistant Professor in Forensic Medicine Department conducted autopsy over the dead body of D2. He opined the cause of death was due to “head injury”. He issued post-mortem certificate-Ex.P35. Thereafter P.W.43 visited Ammavaripalli village and recorded statements of P.Ws.20 to 29. (x) On 30.12.2010, P.W.43 arrested A1 and A4 at about 2.15 p.m in Kondepalli village in the presence of P.Ws. 35 and 36. He seized MO9-long knife from the possession of A1. He recorded confession statements of A1 and A4 under Ex.P13. On the basis of confession, P.W.43 seized blood stained axes-MO.8, one blood stained spear-MO.10, four blood stained sticks-MO.11 under a panchanama-Ex.P31. P.W.43 arrested A2, A3, A5 to A10 on 9 KSR, J and SRK,j Crl.A.No.859 of 2015 30.12.2010, at about 7.00 p.m., who were remanded to judicial custody. (xi) On 16.1.2011, P.W.43 recorded statement of P.W.4. He sent MOs 1 to 15 to RFSL under Ex.P44. On 24.2.2011, P.W.43 recorded statements of P.Ws.10 and 34. On 28.3.2011, P.W.43 filed preliminary charge sheet. After receipt of RFSL report-Ex.P45, he filed charge sheet on 07.5.2011 against A1 to A10. 7. In support of its case, the prosecution examined P.Ws.1 to 43 , marked Exs.P1 to P45 and exhibited M.Os.1 to 16. 8. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating evidence found against them. On behalf of defence, nobody was examined and no documents were marked. P.Ws.8, 9, 11 to 15, 18 to 30 and 36 did not support the case of the prosecution and they were declared hostile. 9. Heard the learned counsel for the appellants as well as the learned Additional Public Prosecutor. We have carefully scrutinised the entire evidence on record. 10. P.W.1 in his evidence stated that on the date of occurrence at about 7.00 a.m. he along with D1 were cleaning their cattle shed. Then, all the accused armed with axes, sticks and spears came to the cattle shed and on seeing them being afraid he and D1 ran towards the main road and reached the house of P.W.9 10 KSR, J and SRK,j Crl.A.No.859 of 2015 and that all the accused chased them. He further deposed that A1 hacked D1 with an axe on his left leg, A2 stabbed D1 with a spear on left side of his chest. On watching the commotion, D2, P.W.2, P.W.4 and himself went to the rescue of D1. He further stated that A5 hacked P.W.2 on her head with an axe. But, immediately P.W.1 stated that A5 beat P.W.2 with a stick on the head. Thereafter, A1 hacked on the right hand elbow of P.W.4. He further stated in his evidence that A4 hacked P.W.4 with an axe on the left side of the head. A2 hacked P.W.4 with an axe on her head, A6 poked D1 with spear on his left hip, A7 hacked D1 with an axe on his left fore-arm, A4 beat him with an axe on his head, A9, A10 beat D1, D2 and P.Ws. 2 and 4 with sticks indiscriminately. A3 beat P.W.2 with a long stick on her head and when she warded off the blow she received injury on her left palm. He further stated in his evidence that D1 died instantaneously and after confirming the death of D1, all the accused left the scene. He further stated in his evidence that on the information given by the villagers, 108 Ambulance came there and D2, P.Ws. 2 and 4 were shifted to hospital. P.W.1 in his evidence stated that he also accompanied them to the hospital in the same Ambulance. He prepared Ex.P1 report with the help of P.W.35 and presented the same to the police. On the basis of it, FIR was 11 KSR, J and SRK,j Crl.A.No.859 of 2015 registered. But, curiously in the cross-examination, P.W.1 specifically stated as follows; “It is true to say that police did not record any statement from me in this case. No police has reached to scene of offence up to 11.00 A.M.. on that date. I do not know anything when the police has come to the village on that date”. Though he deposed in his evidence in chief about the overt- acts attributed to some of the accused, in the cross-examination, he has specifically stated that his statement was not recorded by the police. Of course, he gave report-Ex.P1 at the police-station. 11. Coming to the evidence of P.W.2, she is none other than the mother of P.W.1. She also stated in the same lines of P.W.1. Of course, there are some discrepancies with regard to the overt-acts attributed by P.W.1. P.W.2, in her evidence, has stated that A4 hacked her with an axe on her left side of the head and A5 beat her on the fingers. Of course, the Doctor-P.W.33 issued Wound Certificate-Ex.P26, who stated that P.W.2 received two (2) injuries. 12. P.W.3 is the sister-in-law of D1. She deposed in her evidence that A1 hacked D1 with an axe on his left leg, A2 pocked D1 with spear on the left side of his chest. On seeing them, P.W.2, D2, P.W.4 and P.W.1 went to the rescue of D1. She stated that Immediately A3 hacked D2 with an axe on his head, A5 tried to beat 12 KSR, J and SRK,j Crl.A.No.859 of 2015 P.W.2 with stick on her head and when she tried to ward of the blow, she received an injury on her left hand thumb, A1 hacked P.W.2 with an axe on her right hand. She further stated that A4 hacked P.W.2 with an axe on the left side of the head, A2 hacked P.W.4 with an axe on left side of the head above the ear and when they fell down, A6 pocked D1 with spear on the left hip, A7 hacked D1 with an axe on left hand, A8 beat D1 with stick on his head, A4 hacked P.W.1 with an axe on head, A9 and A10 beat D2 and other injured indiscriminately. She further stated that D1 died instantaneously. Thereafter they were shifted to hospital in an Ambulance. 13. P.W.4 is none other than the wife of D1. She also stated in the same lines of the other witnesses with some variations in overt-acts. 14. P.W.5 is none other than the nephew of D1 and grandson of D2. He also deposed in the same lines with some inconsistencies in attributing overt-acts.P.W.6 also closely related to both the deceased. Of course, he is not an eyewitness to the incident. P.W.7 is also closely related to both the deceased and he is also not an eyewitness to the incident. 15. P.Ws.8, 9, 11 to 15, who are residents of the same village, did not support the case of the prosecution and they were declared hostile. 13 KSR, J and SRK,j Crl.A.No.859 of 2015 16. P.W.10 is son of P.W.1 and he is also not an eyewitness to the incident. P.W.16 is none other than younger brother of P.W.1 and he is also not an eyewitness to the incident. P.W.17 is also relative of both the deceased and he is also not an eyewitness to the incident. 17. P.Ws.18 to 30 and 36, who are the independent witnesses, did not support the case of the prosecution and they were declared hostile. 18. Having scrutinized the entire evidence on record, the evidence of P.Ws. 1 to 5 alone is available coupled with dying declaration of D2, which is marked as Ex.P34. In the Dying Declaration, D2 has attributed specific overt-acts against A1 to A3 alone. In the Dying Declaration-Ex.P34, D2 stated that A3 hacked him on the head and A1 and A2 hacked D2. Except attributing overt- acts against A1, A2 attacking D1 and A3 attacking D2, he did not attribute any overt-acts to other accused. The only consistency in the evidence of P.Ws. 1 to 5 is that A1 to A3 attacked both the deceased and injured witnesses. So far as the other accused are concerned, different witnesses attributed different overt-acts to them, which were not tallying with each other. As already pointed out, D2 in his dying declaration attributed overt-acts only to A1 to A3. As already stated, A1 died during pendency of the trial and A3 was already released by 14 KSR, J and SRK,j Crl.A.No.859 of 2015 Government by granting Special Remission vide G.O.Ms.No.142, (Home (Paroles & HBC) Department, dated 28.11.2020 referred to supra. 19. The oral evidence of P.Ws. 1 to 5 is not consistent with the dying declaration-Ex.P34 and that the only consistency is against A1 to A3. So far as A4 and A6 i.e. appellants No.3 and 5 are concerned, the evidence of prosecution witnesses is not consistent and the dying declaration of D2-Ex.P34 is silent with regard to their participation. So far as A2 i.e., the appellant No.1 is concerned, the evidence of P.Ws. 1 to 5 coupled with Ex.P34/Dying Declaration is consistent. 20. In view of the above facts and circumstances of the case, we have no hesitation to come to the conclusion that convictions and sentences recorded against A4 and A6/the appellants No.3 and 5 cannot be sustained. Accordingly, the Criminal Appeal is allowed, insofar as A4 and A6/the appellants No.3 and 5 herein are concerned and the convictions and sentences recorded against them by the trial Court are set aside. Consequently, they are acquitted of the charge levelled against them. 21. Since evidence adduced by the prosecution coupled with Ex.P34 is consistent, this Court is of the considered opinion that the convictions and sentences recorded against A2/appellant No.1 are 15 KSR, J and SRK,j Crl.A.No.859 of 2015 liable to be confirmed. Accordingly, the Criminal Appeal of A2/the appellant No.1 is dismissed, confirming the convictions and sentences recorded by the trial Court against him. 22. In the result, so far as appellants No.3 and 5/Accused Nos.4 and 6 are concerned, this Criminal Appeal is allowed setting aside the convictions and sentences recorded by the learned VI Additional District and Sessions Judge, Markapur, in Sessions Case S.C.No.311 of 2011, dated 07.08.2015. Accordingly the appellants 3 and 5/Accused Nos.4 and 6 are acquitted. Consequently, the appellant No.3/accused No.4 shall be set at liberty forthwith, if he is not required in any other case or crime and the fine amount, if any, paid by him shall be refunded to him. As the appellant No.5/Accused No.6 was already enlarged on bail, he is directed to appear before the trial Court for completing the legal formalities in terms of the Order passed by the Unified High Court in „Batchu Ranga Rao & others Vs. State of A.P.1. Fine amount, if any, paid by the appellant No. 5/Accused No.6 shall be refunded. 23. So far as the appellant No.1/A2 is concerned, the Criminal Appeal is dismissed, confirming the convictions and sentences recorded by the learned VI Additional District and Sessions Judge, Markapur in Sessions Case No.311 of 2011, dated 07.08.2015. 1 2016(3) ALT (Crl.) 505 (DB) (AP) 16 KSR, J and SRK,j Crl.A.No.859 of 2015 However, it is needless to state that the period already undergone by the appellant No.1/Accused No.2 shall be given set off under Section 428 Cr.P.C. As the appellant No.1/A2 was released on bail, he is directed to surrender before the trial Court, forthwith. Failure to do so, the learned trial Judge is directed to take steps to secure the presence of appellant No.1/A2 by issuing warrants to serve the remaining sentence of imprisonment. Accordingly, the Criminal Appeal is allowed in-part. Miscellaneous Petitions pending, if any, in the Criminal Appeal shall stand closed. ________________________ JUSTICE K.SURESH REDDY ____________________________ JUSTICE K. SREENIVASA REDDY Date: 31.01.2025 GR 17 KSR, J and SRK,j Crl.A.No.859 of 2015 THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL APPEAL NO: 859 OF 2015 (per Hon’ble Sri Justice K. Suresh Reddy) Date: 31.01.2025. GR 18 KSR, J and SRK,j Crl.A.No.859 of 2015