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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.