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CASE NO.: Appeal (crl.)  329 of 2000

PETITIONER: KHAMBAM RAJA REDDY & ANR.                          

RESPONDENT: PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH                                            

DATE OF JUDGMENT: 21/09/2006

BENCH: A.K. Mathur & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR, J.

       The appellants herein along with one Khambham Pai  Reddy were prosecuted for causing the death of   Khambam  Venkatramana Reddy.  While the appellant No.1 was  prosecuted for the offence punishable under Section 302 IPC,  the two other accused  were prosecuted under Section 302 IPC  read with Section  34 IPC, in the alternative  under Section  302 IPC read with Section 114 IPC and  under Section 342  IPC.    In order to prove that the death of Khambam     Vankatramana Reddy was homicidal, the prosecution relied  upon the evidence of PWs1, 2, 3, 8 and 11.  PW-1 is the widow  of the deceased.  PW-2 is the father of the deceased and PW-3  is the doctor who conducted autopsy on the body of Khambam   Venkatramana Reddy.  PW-8 is one of the inquest witnesses  and PW-11 is  a Sub  Inspector  of police who conducted the  inquest and deposed that he had found an injury near the left  eye of the deceased as also on the left thumb.   The case of the prosecution is that the victim and the  accused persons were related to each other.  The 1st accused is  the son of accused Nos. 2and 3 and the 3rd accused is the  husband of   the second accused.  The 3rd accused and PW-2,   Khambam Gangi Reddy, the father of the deceased, were  brothers.  It was the case of the prosecution that the relations  between the accused and the family of the deceased were  strained and there was subsisting hostility between the two  groups.   According to the prosecution, on 9th May, 1994, the  deceased harvested his paddy crop and  placed it in a heap on  Thellabanda  near Koraparthivaripalle bus stop and on that  night  the deceased and his wife, PW-1 slept near the heap of   paddy to keep a watch over the same.  In the early hours of   10th May, 1994, the accused were said to be proceeding   towards  Thellabanda and one  R. Venkataramana who was  watering his fields is alleged to have focused his torch  light on  them.  PW-1 is said to have woken up on hearing the noise of  the accused persons proceeding towards   Thellabanda and in  the beam of her torch light she claims to have seen and  recognized the accused persons.  According to her, the  accused Nos. 2 and 3 caught hold of her hands and  gagged  her  by stuffing a cloth in her mouth to prevent her from  crying out.  At the same time, the 3rd accused exhorted the 1st  accused to kill the deceased who was still in a sound sleep.    On such exhortation, the 1st accused is said to have picked up  a big stone and had thrown the same on the head of the

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deceased, as a result whereof, the deceased sustained fatal  injuries on his head  and died instantaneously.               Having committed the crime, the accused  Nos.  1 to  3 ran away and PW-1 raised an alarm.   On hearing the alarm,   one  Srivargani Guravaiah, PW-7, who was also said to be  watching his  paddy near the scene of  the offence, focused his  torch light and saw the accused Nos. 1 to 3 running away.   PW-7  then rushed to the spot and found the deceased with  head injury.  PW-1 is said to have narrated the incident to him  and then she went to the village and informed her family  members about the said incident.         On 10th May, 1994, at about 10.00 A.M., PW-1 lodged a  complaint which was registered as Crime No. 9/1994 under  Section 302 read with Section 34 IPC.   On the same day, PW- 11, a Sub Inspector of police,  conducted inquest  in respect of   the dead body in the presence of PW-8 and thereafter the body  was sent to the Government Hospital, Piler, for conducting  post mortem.  The doctor who examined the dead body was of  the opinion that the deceased had died on account of the head  injuries.   After completion of the investigation, the Investigating  Officer filed chargesheet against the three accused persons,  who denied their involvement in the incident and claimed that  they had been falsely implicated on  account of the subsisting  rivalry between the two groups.    It was also the defence of the  accused that the story as narrated by PW-1 should not be  accepted  for the reason that the accused  No.1 had suffered  from polio and having  been crippled  by the said  disease, he  was unable to walk  about for long without the assistance of  an escort.  In fact, a certificate issued by one Dr. M.  Venkatadri, Civil Assistant Surgeon, Gandhi Hospital,  Secunderabad, on 5th January, 1994, which was exhibited  on  behalf of the defence, disclosed that  the accused appellant  No.1 herein is permanently disabled.  It was contended that on  account of  his physical disability, it was impossible for  the  appellant No.1 to lift a stone  weighing  about 25 to 30 Kgs.  and to throw it down on the head of the deceased.         From the evidence adduced on behalf of  the defence, the  learned Sessions Judge found that the appellant No.2 was 59  years old and the 3rd accused was 68 years at the relevant  time.  The learned Sessions Judge upon appraisal of the  evidence found the story of the prosecution to be improbable,  basing his decision on the evidence  that the appellant No.1  herein had been crippled by polio and it was physically  impossible for him to lift a heavy stone weighing about 25 to  30 Kgs. in the manner suggested by the prosecution.  The  learned Sessions Judge also observed that it was improbable  for   two  old people to overpower a young woman, namely,  PW-1, and immobilize her so that the appellant No.1 could  pick up  and throw the heavy stone at the head of the  deceased.         On the basis of the above, the learned Sessions Judge  acquitted all the three accused persons of the charges framed  against them.   In the appeal preferred by the State of Andhra Pradesh,  the High Court disagreed with the findings of the learned  Sessions Judge and observed that there was no positive  evidence on record to show that the appellant No.1 is a  crippled man.  The High Court went on further to observe that  even if the defence story that the appellant No.1 had suffered a  polio attack was accepted, such attack was always to the legs  and not to the hands and on such supposition, the High   Court came to a finding  that the appellant No.1 was strong  enough to lift the stone weighing about 25 to 30 Kgs. and  throw it at the head of the deceased.   The High Court also

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held that the evidence of PW-1 inspired confidence and there  was no reason to disbelieve the same.  On such finding, the  High Court  held the accused Nos. 1 to 3 to be responsible for  causing the  death of the deceased.   However, the High Court was of  the view that the offence  committed by the accused persons, though homicide, did not  amount to murder and  had possibly been committed with the  intention of causing grievous hurt to the deceased.  The High  Court  accordingly held the accused persons to be   guilty of   an offence punishable under Section 326 IPC read with  Section 34 IPC and convicted the accused Nos. 1 & 2 and  sentenced each of them to suffer R.I. for seven years and to  pay a  fine of Rs. 1,000/-.  In default, to suffer R.I. for one  month more.  As the accused No. 3  had died  during the  pendency of the trial, the case against him stood abated.   This appeal is directed against the aforesaid judgment  of  conviction and sentence  passed by the High Court of Andhra  Pradesh.         While the case as made out by the prosecution that the  accused No.1 had become crippled on account of an attack of   polio and was physically unable to lift  a stone weighing 25 to  30 Kg. for the purpose of commission of the crime was noticed  by both the courts below, both the said courts appear to have  overlooked the nature of the injuries which were found on the  body of the deceased  by the doctor  who had conducted the  post mortem examination on the body of the deceased.  Since,  we will have occasion to refer to the injuries  later, the same  are reproduced hereinbelow:-

"1) Contusion over the left  cheek 5 x 6 cm.  size

2) Laceration over the left little finger 2 x 3  cm. size       

On dissection of head and neck:-

i)      Fracture of the maxillary bone 2 \0263 cm. size  on left side which corresponds to external  injury No.1

ii)     Fracture of the left parietal bone present 3 \026  4 cm. size

iii)     Contusion present over the left parietal  region of  the brain about 3 x 4 cm. size

iv)     Haemorrhagic fluid present in the cranium  about 500  ml.   Muscles of the neck  are normal.  Hyoid bone  intact.

Chest: Ribs are norml.

Heart and lungs normal. Abdomen: Stomach  contains undigested food particles mixed with  vegetables.  Instetines distended with  gas

Liver, Spleen, and both kidneys are normal.  Bladder empty.  Scrotum and testicles are  normal."

       The main thrust of the submissions made on behalf of

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the appellants was directed to the attack of  polio suffered by  the appellant No.1  which had left him crippled and made it  impossible for him to lift a heavy object such as a stone  weighing 25 to 30 Kgs. with which the  offence is said to have  been committed.  The further contention of the appellants was  that the High Court had failed to appreciate that in her  evidence PW-1 had admitted that she had  not seen any blood  oozing  from the ear, nose or mouth of the deceased after the  commission of the offence.  Certain material  inconsistencies   in the statements of PW-7 as to whether he had actually  noticed the accused in the focus  of his torch light  were also  pointed out.  It was  pointed that while he had stated in his  deposition that he had woken up upon hearing  the  shouting  and thereafter he  switched  on his torch light with the  aid of  which he  noticed the accused persons running away  from the  scene, in his statement made under Section 161 Cr.P.C., he  had mentioned that he was engaged in agricultural operations  at the time of  the incident.         The submissions made on behalf of the State supported  the reasoning of the High Court and it was submitted that  although there was only one eye-witness, who was the wife of  the deceased, her evidence remained unshaken and there was  no reason to disbelieve her evidence as to the manner in which  the incident had occurred.  It was also pointed out that the  injuries suffered by the deceased were quite capable of being   inflicted by a heavy object, such as a stone, being thrown  at  the head of the victim.  In fact, the stand of the State was that   since the injuries were corroborated by the evidence of PW-1,  the High Court had rightly found the accused to be guilty of  having caused the death of Khambam Venkatramana Reddy  though without having the intention of  killing him.  There  was, therefore, no ground for  interference with the judgment  of the High Court under appeal.         As indicated hereinbefore, both the courts below appear  to have overlooked the nature of the injuries suffered by the  deceased and to co-relate the same with the prosecution story. On an examination of the injuries suffered by the  deceased and the evidence of PW-1, it will be seen that the  injuries do not match the ocular evidence.  The injuries  suffered by the deceased, which are extracted hereinbefore, do  not indicate any depressed injury which would have to be   present if a heavy object such as a stone weighing about 25 to  30 Kgs. were to be dropped  on a person’s head.  In his  deposition, PW-3, who had conducted the post mortem  examination, stated that in the instant case, there was   profuse bleeding internally but that he  did not find any  profuse bleeding in the external injury and that in the instant  case, there was   possibility of  blood oozing from the nose and  the mouth  if attacked  with an object  such as Material Object  No.1.  However, while examining the deceased, he did not  observe oozing of blood either from the mouth or nose.  In  Cross-examination, PW-3 has also observed that in case a  heavy object  touches a particular part of the body, there will   be  depressed wound  or injury.  The injuries as noticed by  him, however, does not disclose any injury of such nature,  which is   inconsistent  with the  theory of  the offence having  been committed in the manner projected by the prosecution.         Cox in his "Medical Jurisprudence and Toxicology", while  dealing with head injuries, has described various types of  fractures. He has described "depressed fracture" in the  following words:-

"Depressed Fracture: This is also known as  signature fracture or fractures  a la signature   as  their pattern at times resembles the weapon which

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caused it.   Heavy  weapons with a small striking  surface, eg, axe, hammer, stone etc, cause localized  depressed fracture."              The present case is an example of contradiction between  the ocular evidence and the medical evidence, where the  medical evidence is not borne out by the ocular evidence.  In  such a situation it was suggested on behalf of the appellants  on the authority of a decision of this Court in the case of    State of M.P. vs. Dharkole alias Govind Singh  and Ors.,  reported in (2004) 13 SCC  308, where the medical evidence  was at variance with the ocular evidence, the testimony  of the  eye-witness should be decided  independently and if found  trustworthy, the same  could not be discarded merely because  it is at variance with medical opinion.  While there can be no  difference of opinion with the principle explained in the  aforesaid decision, the application thereof will depend on  whether the story as made out by the prosecution is  trustworthy and can be related to the injuries suffered by the   victim in the manner as sought to be projected.  If the ocular  testimony is such that it is not possible to relate the injuries  with the circumstances in which they were said to have been  inflicted, the court has the discretion not to accept the ocular  evidence. The principle enunciated in Dharkole’s case (supra)  may be applied in an appropriate case, but each case has to  be determined having regard to its own set of facts.          In the instant case, in the absence of any depressed  injury and in the absence of any bleeding from the nose and  ears of the deceased, we are unable to  give credence to the  evidence of PW-1 as to the manner in which the incident is  said to have occurred.         Apart from the above, the High Court has also gone  wrong in observing that there is no positive evidence on record  to show that the accused No.1 is crippled.  The High Court has  proceeded on the supposition that since  a polio attack is  always to the legs and not to the hands, a person who had  suffered from  a polio attack, was capable of lifting a stone  weighing about 25 to 30 Kgs. with his hands.   The learned  Sessions Judge has, in fact, referred to a certificate issued by  Dr. M. Venkatadri, Civil Assistant Surgeon, Gandhi Hospital,  Secunderabad, dated 5th January, 1994, to the effect that the   right leg of the appellant No.1 had been affected with polio and  he was unable to  travel without the assistance of an escort.  Negatives  in respect  of the  disability of the appellant No.1  showing him to have been attacked by polio  had also been  filed. For the appellant No. 1 to have lifted a stone weighing 25  to 30 kgs in his physical condition was highly improbable.                 The two circumstances taken up together creates  sufficient doubt regarding the prosecution case and  as to the   manner in which the victim is said to have been killed.         In the result, the appeal succeeds and is allowed.         The conviction and sentence of the appellants herein are  set aside.  The appellants are on bail.  Let them be discharged  from their bail bonds and be set at liberty forthwith.