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CASE NO.: Appeal (crl.) 299-300 1991

PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: KOWTHALAM CHINNA NARASIMHULU AND OTHERS

DATE OF JUDGMENT:       08/12/2000

BENCH: D.P.Mohapatro,, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     J U D G M E N T

     D.P.MOHAPATRA,J.

     Seven  accused persons were charged under Sections 148 and 302 read with Section 149 of the Indian Penal Code.  Two of  them, accused No.2- Mahanandi and accused no.3 -  Eranna were acquitted by the Trial Court and the rest i.e.  accused no.1-  Kowthalam Chinna Narasimhulu @ Donga Ramudu,  accused no.4 - Dadapeer, accused no.5 - Mohidin Peeran, accused no.6 -  Khaja  Hussain and accused no.7 - Chand Basha were  found guilty of the offences charged and were sentenced to undergo rigorous   imprisonment  for  two   years  for  the  offence punishable  under  section  148  IPC   and  to  suffer  life imprisonment  for  the offence punishable under section  302 IPC.   The Trial Court further held that both the  sentences were to run concurrently.

     Being  aggrieved  by the judgment of the trial  court, both,  the convicted accused and the State of Andhra Pradesh filed  appeals before the High Court.  The High Court by the Judgment  dated  3.9.1990  allowed the appeal filed  by  the convicted  accused  and  dismissed the appeal filed  by  the State.   Therefore,  the State of Andhra Pradesh  has  filed these  appeals  against all the seven accused persons.   The prosecution  case, as unfolded by the eye-witnesses PWs 1 to 4, runs as follows:

     Accused  nos.  1 to 3 are brothers, accused 4 to 7 are their  followers.  Narayanappa, the deceased was a  resident of  Kallukunta.   His son Nageswara Rao (PW1) contested  for Sarpanchship  of  Kallukunta village for which accused  no.1 had  also filed nomination paper.  The deceased had tried to persuade  Accused No.1 to withdraw from the contest but  his

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attempts  did not succeed.  PW 1 won the election and became Sarpanch.   There were some skirmishes on the date of filing of  nomination  in which Accused No.1 and Accused  No.2  had sustained injuries.  At their instance a case was registered against  the  deceased  and  two others  and  the  same  was pending.

     On  9.9.1988 the deceased left his village  Kallukunta for Kurnool to participate in excise auction scheduled to be held  at the office of the District Collector, Kurnool.   He was accompanied by his son PW1, his brother PW3 and PWs 2 to 4  and Shakuntalamma, wife of PW1 and daughter in law of the deceased.   From  the  village they went in a  tractor  upto Peddakadubur  village.   From  there they went by a  bus  to Adoni.   The  bus  reached  Adoni at about  11.00  a.m.   On reaching Adoni PW1 sent his wife Shakuntalamma by a rickshaw to  Devi Nursing Home where she was being treated and  asked her  to  wait for him and promised to come after seeing  off the  deceased.   When  these  persons were  waiting  at  the bus-stand  to  take the bus to Kurnool the  accused  persons armed  with  deadly weapons like hunting  sickles  (Yerikala sickles)  and daggers came out of their hiding in the hostel situated  nearby  and attacked the deceased.  On seeing  the accused  persons  the  deceased  and  his  son  PW1  started running, the accused persons gave a chase and caught up with the deceased.  A1 gave a blow on the head of the deceased on receiving  which  he  fell  down and  thereafter  the  other accused  2 to 5 indiscriminately assaulted him with  hunting sickles  held by them and the accused A6 and A7 stabbed  him with  the  daggers.   As  a  result,  Narayanappa  sustained multiple injuries and died at the spot.

     PW  8  - S.I.  of Police, II Town Police  Station,  on receiving  information  about  the incident  at  11.45  a.m. reached  there within 10 minutes (at 11.55 a.m.), found  the dead  body of Narayanappa with multiple injuries lying in  a pool of blood.  He posted two police constables to guard the dead  body  and left for the Police Station at  about  12.30 p.m.   Thereafter  PW1 lodged the report before PW8  at  the Police  Station, on receiving which the latter registered it as First Information Report and submitted copies of the same to  all concerned including a copy to the Court (P.5),  made entries  in  the  General diary, informed the  Inspector  of Police  PW9  on  telephone about the crime and  reached  the scene  of offence at 1.10 p.m.  By that time PWs 2 to 4  and Shakuntalamma  also  reached the scene of  occurrence.   PW8 held  inquest over the body from 1.30 to 4.30 p.m., examined PWs  1  to 4 and wife of PW1, seized five bus  tickets  with blood  stains  from  the dead body (M.O.2)  and  some  other articles also stained with blood, and sent the dead body for post-mortem examination to the Government Hospital at Adoni. PW5  Dr.Sankara  Narayana held the post- mortem  examination over  the  body  at about 4.50 p.m.  on the same  day.   The doctor  found  as many as 26 external injuries on  the  dead body  and  according to the doctor, injury nos.1, 9, 13,  18 and  19  were fatal by themselves.  The said fatal  injuries are  as follows:  Injury 1.  A horizontal cut injury of 5" x 1"  bone  deep extending from left hand upto 2"  above  left ear.   Wound covered with blood clots.  Brain matter is seen in  middle  of wound.  On dissection frontal  brain,  matter lacerated  and blood stained.  Injury 9 A horizontal  injury of  3"  x  1" x 3" deep over middle of  neck  below  cricoid certilegs.   On dissection neck structures trachea acophags, blood  vessels  were  cut and surrounding  structures  blood stained.  Injury 13 A horizontal stab wound of 3" x 1" chest

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deep  3"  below and to right of left nipple.  On  dissection inter costal muscles were cut and corresponding above injury middle  of  left  verticle of heart was perforated  of  size 1x1/4"  x  1/4".Heart was empty.  Injury 18 An oblique  stab wound  of  2"  x  1" x abdomen  deep  in  ephygastrium.   On dissection  abdominal  structures are cut and  stomache  was perforated  of  1  inch  x  1/2"   x  1/4"  in  the   middle corresponding  to  above injury.  Injury 19 An oblique  stab wound 2" x 1" x abdomen deep 2" below right costal cartilage through  which Omentun seen.  On dissection portion of small intestines was perforation of 1" x 1/4" x 1/4".

     In the opinion of the doctor the cut injuries could be caused by a sharp and heavy weapon like a hunting sickle and the  stab injuries could be caused by daggers.  His  further opinion  was that the deceased appeared to have died 4 to  8 hours  prior  to the post-mortem examination due  to  shock, brain  haemorrhage  and  due  to  multiple  injuries.    The Magistrate  received  the FIR Ex.P5 at about 1.15 p.m.   and the  inquest report Ex.P6 at 5.45 p.m.  on 9.9.1988 the date of  the  occurrence.  The prosecution examined in  all  nine witnesses  and  DW1 - A.Rajashekhar was the only witness  on behalf  of  the  defence.   The   learned  trial  judge   on assessment  of  the  evidence of the eye-witnesses  and  the medical  evidence believed the ocular evidence of PWs 1 to 4 which  was  amply  corroborated  by  the  medical  evidence, accepted  the  prosecution case against the accused nos.   1 and  4 to 7, held them guilty of the charges under  sections 148  and  302 IPC and sentenced them as noted  earlier.   He acquitted accused nos.2 and 3 mainly on the ground that PW 3 did  not state that those accused persons were armed  either with  hunting  sickles or daggers and did not say about  any attack  by the said accused persons.  The High Court, as  it appears from the discussions in the judgment, cast a serious doubt about the truth of the prosecution case relying on the time  of  the occurrence as alleged by the  prosecution  and some  other  lacunae in the investigation of the case.   The High  Court  was  of  the  view that  the  incident  in  all probabilities  happened  earlier in the morning and  not  at 11.30  a.m.   and  the story as narrated in the  FIR  was  a concocted  one.  It is relevant to note that the High  Court did  not  discuss  the evidence of PWs 1 to  4,  the  ocular witnesses  nor recorded any finding that their testimony  is not    trustworthy.    The    Court    took   exception   to non-examination  of  the conductor of the bus in  which  the deceased  and  the PWs 1 to 4 were stated to have  travelled from  Peddakadubur village to Adoni and for  non-examination of  the doctor or staff of Devi Nursing Home at Adoni.   The Court  also  observed that PWs 1 to 4 were chance  witnesses and  therefore  their testimony could not be accepted.   The prosecution,  as  noted  earlier,  mainly  relied  upon  the evidence  of  the eye-witnesses PWs 1 to 4.  Since the  High Court  has not discussed the testimony of these witnesses in the  judgment but has described their evidence expressing  a doubt  about  their presence at the place of  occurrence  on other attending circumstances;  we have perused the evidence of  these  eye-witnesses  to  satisfy  ourselves  about  the correctness  of  the opinion expressed by the High Court  on their  evidence.   We  are of the view that the  High  Court cannot  be  said  to  have  committed  any  gross  error  in appreciation  of the ocular evidence of these witnesses.  On perusal  of  the evidence of these witnesses there is  ample scope  to doubt if they were at all present when the accused persons   are  alleged  to   have  assaulted  the   deceased Narayanappa.   PW1,  who  is the son of  the  deceased,  has

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stated  that  on seeing the accused persons  coming  towards them he and his father started running and while doing so he overtook  his father.  He has candidly admitted that he  did not  witness the murder.  From the evidence of PWs 2,3 and 4 it  is  clear  that seeing the deceased and  his  son  (PW1) running,  they  also  ran away from the place  and  went  in different directions.  Indeed, PW2 has stated that on seeing the  accused persons advancing towards them all the  persons accompanying  the  deceased ran away.  It is to be  kept  in mind  that  the  bus-stand,  where   the  deceased  and  the witnesses  were  waiting  for the bus to Kurnool,  is  at  a junction  of  several  roads.   It is  on  record  that  the witnesses  ran  away from the place taking different  roads. In  the circumstances it is difficult to believe that  these witnesses could witness all these accused persons assaulting the  deceased in the manner stated in the Court.  A  dispute was raised about the time of the incident.  According to the prosecution  it was at about 11.30 a.m.  while according  to the  defence  it  was at about 8.30 a.m.  The  time  of  the incident  is  relevant  in the context of the  case  of  the prosecution  that the deceased left his village for  Kurnool to  participate  in the auction for settling country  liquor (arrack)  shops  which  was to be held  in  the  Collector’s office  at  Kurnool.  It is also on record that the  auction was  to be held at 10.30 a.m.  Then it becomes difficult  to accept  the prosecution story that the deceased was  waiting at   the  bus-stand  at  11.30   a.m.   with  the  hope   to participating  in the auction.  There is also another reason which  makes the prosecution case doubtful.  It is the  case of  the prosecution that the accused persons came out from a hostel building located opposite the bus stop where deceased and  the  eye-witnesses  were waiting for the bus to  go  to Kurnool.   Some eye-witnesses have stated that they had been waiting  for  about half an hour at the bus stop before  the attack  by the accused persons.  If the accused persons were hiding  in the hostel building waiting for the deceased then there  is  no reason why they should wait for half  an  hour before  attacking the deceased.  Further, from the materials on  record  it  appears  that the village  Kallukunta  is  a faction  ridden one on political lines and the deceased  and his  family members were involved in local politics.  It  is the  case  of the prosecution that differences  between  the parties came to the fore when PW1 decided to contest for the office  of  Sarpanch against accused No.1 and  the  deceased tried  to  persuade  the  accused   no.1  to  withdraw   his candidature but did not succeed.  On a careful consideration of  the  matter, we are of the view that the High Court  was right  in  holding  that  the   prosecution  has  failed  to establish  its  case  against  the  accused  persons  beyond reasonable doubt.  Accordingly, the appeals are dismissed.