IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI THURSDAY ,THE FIRST DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY AND THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPEAL NO: 1609 & 1313 OF 2017 CRLA.NO.1609 OF 2017: Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to to set aside the Judgment dated 23.10.2017 in SC No.23/2016 passed by the XI Additional District and Sessions Judge, Tenali, Guntur District Between: 1. Badugu Rambabu, S/o. Moses, Aged about 27 years, Occ; Agriculture, Rio. SC Colony, Gullapallf Village, Cherukupalli Mandal, Guntur District. 2. Velicherla Ravi Chandra,, S/o. Samsonu, Aged about 22 years, Occ; Agriculture, R/o. SC Colony, Gullapalli Village, Cherukupalli Mandal, Guntur District. ...APELLANTS / ACCUSED No. 2 & 3 AND The State of Andhra Pradesh,, Rep. by its Public Prosecutor, High Court of Andhra Pradesh, Amaravathi. ...RESPODENTS CRIMINAL APPEAL NO: 1313 OF 2017 Appeal under Section 374(2) of Cr.P.C praying that the High Court may be pleased to to set aside the Judgment dated 23.10.2017 in SC No.23/2016 passed by the XI Additional District and Sessions Judge, Tenali, Guntur District Between: % Islagaraju, S/o. hitler, Agriculture R/o. SC Colony, Gullapalli Village Cherukupalli Mandal, Guntur District. ...APELLANT / ACCUSED No.1 AND The State of A.P.,, Rep., by its Public Prosecutor, High Court of Andhra Pradesh at Amaravati ...RESPODENTS Counsel for the Appellants : Smt. SODUM ANVESHA Counsel for the Respondents: PUBLIC PROSECUTOR The Court made the following: APHC010987252017 •N THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THURSDAY .THE FIRST DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL APPFAI NO: 1609/2017 [3528] Between: Badugu Rambabu. and Others ...APPELLANT(S) AND State Of Andhra Pradesh Counsel for the Appellant(S): 1.SODUM ANVESHA Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) ...RESPONDENT CRIMINAL APPEAL NO: 1313/2017 Between: B.nagaraju ...APPELLANT AND State OfAP Counsel for the Appellant: ...RESPONDENT V 2 KSRJ & VS,J Crla 1609 & 1313_2017 1.SODUM ANVESHA Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: COMMON JUDGMENT: (Per Hon’ble Sri. Justice K. Suresh Reddy) As both these appeals arise out of same Sessions Case, they are heard together and are being disposed of by way of common judgment. A1 in S.C.No.23 of 2016 on the file of XI Additional District and Sessions Judge, Tenali is the appellant in Crl.A.No.1313 of 2017, whereas A2 and A3 filed Crl.A.No.1609 of 2017. A1 to A3, along with A4 were tried by the 2. learned Additional Sessions Judge under two charges. The first charge was under Section 302 read with 34 IPC against A1 to A4 and the second charge was under Section 307 read with 34 IPC against A1 to A4. Substance of the charge is that on 01.01.2015, at about 01.00 p.m., at the cool drink shop of P.W.4, all the accused in furtherance of their common intention, stabbed one Emani Ajay Babu ©Chikini (hereinafter referred to as ‘deceased’), with broken cool drink bottles and also by beating with sticks, caused his death and in the same process, they attempted to kill P.W.1 and 3. KSRJ & VS,J Crla_1609& 1313_2017 caused injuries, thereby committed offences punishable under Sections 302 and 307 read with 34 IPC. (a) During pendency of the trial, A4 died on 06.10.2017 and the against him stood as abated. After completion of trial, the learned Additional Sessions Judge convicted A1 to A3 under Section 302 IPC and sentenced each one of them to suffer imprisonment for life and also to pay a fine of Rs. 1,000/- each, in default to suffer simple imprisonment for one month. The learned Additional Sessions Judge further convicted A1 to A3 under Section 324 read with 34 IPC and sentenced each one of them to undergo rigorous imprisonment for a period of two (2) years. Both the substantive sentences were directed to run concurrently. case (b) All the accused and the material prosecution witnesses residents of Gullapalli village, Cherukupalli mandal. The deceased was also resident of the same village. P.W.1 is elder brother, P.W.2 is the mother and P.W.3 is the brother-in-law of the deceased. are 3. Case of, the prosecution, as emanated from the evidence of the prosecution witnesses in brief is as follows: (i) On 24.12.2014, around mid-night, P.W.1 brought a cake to S.C. Colony in order to celebrate Christmas festival and a Christmas star was also arranged by the deceased and his friends (P.Ws.5 and 7). While 4 KSR,J & VS,J ^ Crla_1609 & 1313_2017 celebrations were going on, one Badugu Samsonu came and questioned P.W.5 as to why he has put off the candles and a dispute between the deceased and A1 to A4 arose. P.Ws.6 and 7 pacified the issue and sent them away. (ii) On 31.12.2014, around mid-night, while P.W.1 and the deceased were returning from the shop of P.W.4, A1 to A4, who were present there, altercated with the deceased. P.W.4 pacified the matter. While so, on 01.01.2015, at about 01.00 p.m., while P.W.1 and the deceased were in front of the cool drink shop of P.W.4, A1 to A4 came there and attacked the deceased. A1 beat the deceased on his head. When the deceased fell down. A1 again dealt a blow with the stick on the neck of the deceased. When P.W.1 tried to interfere, A2 to A4 beat him with sticks. When P.W.1 raised cries. P.Ws.4 and 6 came there and all the four accused left the scene. Immediately, P.Ws.3 and 4 shifted both the injured to Government hospital, Repalle. The doctors at Repalle advised to take them to Government general hospital Guntur. Thereafter, both the injured were shifted to Government general hospital, Guntur. At the Government general hospital, Guntur, the doctors declared the deceased as dead. Having received hospital intimations (Exhibits P.10, 11 and 13), the head constable (P.W.14) attached to the outpost G.G.H., went to the casualty ward and recorded statement from P.W.1 which is marked as Ex.P.1. He forwarded the same to Cherukupalli Police KSR,J & VS,J Crla_1609 & 1313_2017 Station on the point of jurisdiction. On 02.01.2015, at about 07.00 P.W.13 - S.l. of Police, Cherukupalli Police Station, received Ex.P.1 along with Exs.P.10, 11 and 13 and registered a case in Crime No.1 of 2015 under Sections 302 and 307 read with 34 IPC. He issued copies of FIRs to all the concerned. FIR is marked as Ex.P.12. On the same day, at about 07.30 P.W.13 received a statement from Community Health Center, Repalle and registered a case in Crime No.2 of 2015 under Sections 324 and 323 read with 34 IPC against the prosecution party. The said crime was registered on the basis of the statement of A1. The said FIR is marked as Ex.D.7. Having received information, P.W.16 - Inspector of Police, Repalle rural circle, proceeded to the scene of offence. He secured presence of mediators (P.Ws.10 and others) and prepared an observation report which is marked as Ex.P.2. He also prepared a rough sketch which is marked as Ex.P.14. At the scene of offence, under Ex.P.2, he seized M.0.1 - ‘L’ shaped dried tree branch, M.0.2 - ‘Y’ shaped dried tree branch, M.Os.3 and 4 - two dried tree branches, M.Os.5 and 6 - empty cool drink bottles, M.0.7 - empty soda bottle and M.0.8 - broken bottle pieces. He held inquest over the dead body in the presence of P.W.10 and another. Inquest report is marked as Ex.P.3. He recorded statements of witnesses at the inquest. He sent the dead body for postmortem examination. a.m. a.m.. 6 KSR,J & VS,J ^ Cria 1609 & 1313_2017 i (iii) P.W.11 Assistant Professor, Guntur Medical College, conducted autopsy over the dead body of the deceased on 02.01.2015 at about 04.00 p.m. He opined the cause of death was due to shock and hemorrhage due to head injury. He issued postmortem certificate which is marked as Ex.P.4. On 25.01.2015, P.W,16 arrested all the four accused Sai Baba Temple, Cherukupalli who were remanded to judicial custody. In the meanwhile, P.W.12 - Civil Assistant Surgeon, Government hospital, Repalle, examined P.W.1 and issued wound certificate - Ex.P.5. He also examined A1 (iv) near and A3 and issued wound certificates which are marked as Exs.P.7 and P.9. P.W.12 opined the injuries of P.W.1 and A1 to A3 are simple in nature. After collecting all the documents and after completion of (V) investigation, P.W.16 filed charge sheet. 4. In support of its case, the prosecution examined P.Ws. 1 to 16, marked exhibits PI to PI4 and exhibited M.Os.1 to 8. On behalf of the defence Exs.DI to D7 were marked. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearingagainstthem. Accepting the evidence of prosecution witnesses, the learned Additional 5. Sessions Judge convicted the accused as aforesaid. V 7 KSR,J & VS,J Crla_1609 & 1313_2017 6. Heard Sri. P. Veera Reddy, learned Senior Counsel behalf of Sri. Sodum Anvesha, learned counsel for the appellants in both the cases and Sri. Marri Venkata Ramana, learned Additional Public Prosecutor for the State. appearing on 7. The learned Senior Counsel contends that the evidence of P.W.1 suffers from contradictions He further contends that the true version and the omissions and improvements from stage to stage, prosecution witnesses are not coming up with version spoken to by P.Ws.1 and 4 to 9 is highly exaggerated and no reliance can be placed on their version. He further contends that it is the prosecution party who came near the house of accused situated nearby the shop of P.W.4 and attacked them. He further that the deceased and P.W.1 contends in drunken state at the relevant point of time and have attacked A1 to A4. He further contends that were a case in Crime No.2 of 2015 of Cherukupalli Police station was registered against P.W.1, the deceased and others. He further contends that no specific overt act has been attributed against A2 and A3 with regard to the attack on the deceased. P.W.1 has attributed overt act to A1 alone in his earliest report i.e. Ex.P.1. During the course of trial, P.W.1 improved his version and attributed overt acts to all the four accused insofar as attack on the deceased is concerned. As such, he contends that P.W.1 is not a reliable witness. So far as other witnesses are concerned, their presence was not stated by P.W.1 in his earliest report 8 KSR,J & VS,J Cria 1609 & 1313_2017 (Ex.P.1). As such, the learned Senior Counsel requests this Court to allow the appeal by setting aside the convictions and sentences recorded against the appellants. On the other hand, learned Additional Public Prosecutor opposed the appeal contending that the charge sheet was filed under Sections 302 and 307 read with 34 IPC as all the accused were having common intention. The conviction recorded by the learned Trial Judge under Sections 302 and 324 read with 34 IPC cannot be interfered with. As such, he requested this Court to dismiss the appeal by confirming the convictions and sentences recorded 8. by the learned Trial Judge. We have carefully analyzed the entire evidence on record. 9. As seen from the material available on record. Crime No.1 of 2015 and 10. Crime No.2 of 2015 are in the nature of case and counter case. Admittedly, a case in Crime No.2 of 2015 of Cherukupalli Police station was registered the said crime was closed by the against the prosecution party. Of course investigating officer. But the fact remains that A1 and A3 also received injuries and P.W.12 - Civil Assistant Surgeon, issued wound certificates (Exs.P.7 and P.9) stating that A1 and A3 received injuries at the relevant point of time. Even P.W.1 also, in his evidence stated that A1 and A3 were already admitted in the hospital even before he and the deceased were taken to the hospital. As 9 KSR,J & VS,J Cria 1609 & 1313 2017 such, we are of the opinion that both the parties altercated with each other and both the parties beat each other and two persons on either side received injuries. Further, according to P.Ws.11 and 12, all the injuries are attributable to sticks and broken glass pieces which were available in front of the cool drink shop of P.W.4. In view of the above facts and circumstances, we have no hesitation to come to a conclusion that it is a case of free fight. In a case of this nature, particularly, in a case of free fight, the accused 11. are liable for their individual acts and not with the aid of either Section 34 or Section 149 IPC. P.W.1 in his earliest version (Ex.P.1) has specifically stated that A1 beat the deceased on the head, when he fell down, again A1 beat the deceased on the neck with the same stick. When P.W.1 tried to interfere, A2 to A4 beat him with sticks and glass pieces. As such, A1 alone caused injuries on the deceased. But, during the course of trial, P.W.1 came up with an improved version attributing overt acts to A2 to A4 also, so far as the attack on deceased is concerned. P.W.1 in his over enthusiasm has attributed overt acts to A2 to A4 also in his evidence. But, in Ex.P.1, he attributed overt acts only to A1 and to none others. So far as causing injuries to P.W.1 is concerned, he attributed overt acts only to A4 in his evidence. As such, A1 alone is responsible for the death of the deceased. So far as the evidence of P.W.4 is concerned, admittedly, the incident took place in front of his shop. Naturally, his presence cannot be. disbelieved as the incident took place in lx. 10 \ KSRJ & VS,J Crla_1609 & 1313_2017 front of his shop. P.W.4 also, in his evidence attributed overt acts to At alone so far as the attack on deceased is concerned. So far as other witnesses are concerned i.e. P.Ws.5 and 9, their evidence cannot be accepted as their presence was not spoken to by P.W.1 in his eariiest report i.e. Ex.P.1. Having analyzed entire evidence carefully, the evidence of P.Ws.1 and 4 alone is reliable in the circumstances of the case. 12. As already pointed out, it is a case of free fight and the accused are liable for their individual acts. As no specific overt acts have been attributed against A2 and A3, they are entitled for acquittal. So far as A1 is concerned, right from the stage of Ex.P.1, both the overt acts are attributed to him insofar as the attack on deceased is concerned. Evidence of P.W.1 and P.W.4, right from the beginning, is consistent insofar as the attack on deceased by A1 is concerned. In view of the above facts and circumstances, we are inclined to set-aside the convictions and sentences recorded against A2 and A3 under both the charges. So far as A1 is concerned, his conviction under Section 324 read with 34 IPC is also liable to be set-aside, as no allegation of attack was made by P.W.1 and P.W.4. 13. In the result, Crl.A.No.1609 of 2017 is allowed, setting aside the convictions and sentences recorded by the learned XI Additional District and 11 KSR,J & VS,J Cria 1609 & 1313 2017 Sessions Judge, Tenali in S.C.No.23 of 2016, dated 23.10.2017 and they are acquitted of all the charges. So far as Crl.A.No.1313 of 2017 is concerned, the conviction and 14. sentence recorded under Section 302 read with 34 IPC is hereby set-aside. Instead, the appellant/Accused No.1 is convicted under Section 302 IPC while maintaining sentence of imprisonment. So far as conviction and sentence under Section 324 read with 34 IPC against the appellant/AI is ( concerned, the same is hereby set-aside. \ 15. Accordingly, Crl.A.No.1609 of 2017 is allowed and Crl.A.No.1313 of 2017 is partly allowed. As all the appellants were released on bail by this Court, in terms of the order dated 02.11.2016 passed by a Division Bench of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in Batchu Ranga Rao and others Vs. State of Andhra Pradesh, represented by its Public Prosecutor (Crl.A.M.P.No.1687 of 2016 in Crl.A.No.607 of 2011), A2 and A3 are directed to surrender before the concerned jail authorities and complete the formalities in terms of the above judgment. So far as A1 is concerned, he is directed to surrender before the Trial Court to serve the remaining sentence of imprisonment. Failing which. the learned XI Additional District and Sessions Judge, Tenali is directed to secure his presence by issuing non-bailable warrants and commit him to the 12 KSRJ & VSJ Crla_1609 & 1313_2017 sentence of imprisonment. Needless to state prison for serving remaining the sentence and i off under Section 428 Cr.P.C. that imprisonment already undergone by A1 shall be given set As a sequel, interlocutory applications pending, if any, shall also stand closed. SD/- E. KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTION OFFICER Dislict Magistrate, Repalle, Guntur 2. The Additional District Sessions Judge, Tenali, Guntur District 3. The Superintendent, Central Prison, Rajahmundry District ^ 5 Two Advocate [OPUC] (in Both Cases) 5. TwoCCs to the Public Prosecutor High Court of Andhra Pradesh 6. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. 7. Two CD Copies To, East Godavari [OUT] psr AL HIGH COURT DATED:01/05/2025 ORDER CRLA.No.1609 of 2017 ALLOWING THE CRIMINAL APPEAL i 2 3 MAY 2C:5 X- mj Co -5;- & CRLA.No.1313 of 2017 PARTLY ALLOWING THE CRIMINAL APPEAL