KAVALI BHASKAR Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 12-2-1988 passed by the Division Bench of the Andhra Pradesh High Court in Criminal Appeal No. 1016 of 1987. By the aforesaid judgment, the High Court affirmed the conviction and sentence passed by the learned Sessions Judge, Anantapur in Sessions Case No. 41/87. The learned Sessions Judge convicted A-3 to A-5, A-9 and A-10 on the charge of murder and they were sentenced to suffer life imprisonment. So far as A-2 is concerned, he died before the charge was framed and A-1 also died during the trial. The learned Sessions Judge also convicted A-3, A-4, A-5, A-9 and A-10 under Section 148, IPC, and sentenced each of them of suffer rigorous imprisonment for one year. The learned Sessions Judge, however, acquitted A-6, A-7 and A-8 giving them benefit of doubt from the charges levelled against them. The convicted accused thereafter preferred the said appeal before the High Court, but the High Court, dismissed the appeal and affirmed the conviction and sentence passed by the learned Sessions Judge.

(2.) Mrs. Sharda Devi, learned Counsel, appearing for the appellants has very strenuously contended at the hearing of this appeal that admittedly in the instant case the accused and the deceased and the prosecution witnesses had long standing enmity and disputes between them and a number of criminal cases were pending between the parties at the time of the murder of the deceased. In the aforesaid circumstances, the eye-witnesses namely Pws. 1, 2 and 3 were highly partisan witnesses and simply on the basis of the evidences given by such interested and partisan witnesses which were not corroborated by any independent and reliable evidence, the conviction of the appellants were not warranted. The learned Counsel has also contended that there is material contradiction in the first information report lodged by PW-1 and also the depositions given by PW-1 inasmuch as in the first information report it was stated that A-2, A-6 and A-7 caught hold of the deceased while others assaulted him, but in his deposition PW-1 has stated that A-2, A-6 and A-8 caught hold of the deceased. The learned Counsel has also stated that there are also discrepancies between the depositions of PW-2 and PW-3 inasmuch as while PW-2 stated that A-2, A-3 and A-7 caught hold of deceased but PW-3 stated that A-2, A-6 and A-7 caught hold of the deceased. Such discrepancy will only indicate that some of the said three eye-witnesses was present at the time of the incident but because of the long-standing enmity the accused appellants were falsely implicated with the commission of the murder of the deceased. Mrs. Sharda Devi has also contended that in the first information report it was only mentioned that injuries were caused by sickles, but the doctor who conducted the post-mortem examination has stated in his deposition that the injuries were not likely to be caused by an ordinary sickle used for cultivation. The learned Counsel has submitted that later on there was an attempt to improve the prosecution case by the interested prosecution witnesses and use of hunting sickles was sought to be introduced in the deposition Such improvement in the deposition should not have been accepted by the courts below and the prosecution case was liable to be discarded. The learned Counsel for the appellants has also submitted that it is the positive case of the prosecution that neither the deceased nor the said eye-witnesses namely Pws. 1, 2 and 3 raised any hue and cry when the deceased was being assaulted by 10 persons inside a coffee bar. It is contended by the learned Counsel that it is most unnatural that the said eye-witnesses should not have raised any hue and cry. Even if it is assumed that out of fear they did not raise notes of alarm it was only natural that the deceased would raise hue and cry when he had been assaulted mercilessly. The learned Counsel has also contended that the incident had happened inside a coffee bar and admittedly number of persons were present there taking coffee. Even if such persons had left the place out of fear, they must have noticed that the eye-witnesses Pws 1 to 3 were present along with the deceased in the hotel and the accused persons entered the hotel being armed with weapons. Such evidence from independent witness is, however, lacking. Mrs. Sharda Devi has further submitted that even PW 8 who is an independent witness has not stated that ten persons who entered the said hotel armed with sickles were the accused persons, al-though, he specifically stated that he knew both the deceased and the accused persons. The learned Counsel has, therefore, submitted that if in the backdrop of long-standing enmity, the aforesaid material discrepancies and want of independent corroboration are taken note of, there would be no justification for convicting the accused and in the facts and circumstances of the case the courts below should have held that the prosecution case could not be proved beyond reasonable doubt.

(3.) The said contention has, however, been disputed by the learned Counsel Mr. Raju appearing for the respondent. He has submitted that the witnesses were examined after more than a year of the incident and slight discrepancy about the names of one or two persons catching hold of the deceased was only natural because of likely loss of memory to remember all the facts in minute detail. All the eye-witnesses remembered the basic fact that three accused caught hold of the deceased and others assaulted him. He has submitted that the statement made in the first information report clearly tallies with the deposition of P.W. 3 so far as the persons catching hold of the deceased is concerned. But in the depositions of P.W. 1 and P.W. 2 there has been slight variation about the names mentioned in F.I.R. But such variation does not intrinsically render their deposition untrustworthy. The learned Counsel has also submitted that although the said witnesses stated that all the accused persons dealt one blow each but from the medical evidence it transpires that the deceased had sustained 13 injuries. The apparent discrepancy about the number of injuries inflicted on the deceased can easily be explained and appreciated. It has been submitted by the learned Counsel that the said witnesses have stated that out of fear they took shelter under the table in the hotel room when the deceased was being assaulted by ten persons. In such circumstances, it is not at all unlikely that they failed to notice each and every injury being caused by the accused persons. He has submitted that it has been specifically stated in F.I.R. that sickles were used in causing injuries on the deceased. Immediately after the incident the first information report was lodged giving almost graphic picture how the injuries were caused on the different parts of the body. From the medical evidence such injuries as reported in F.I.R. were clearly established. The learned Counsel has submitted that both the courts below have taken into consideration the contention made on behalf of the accused that all the injuries were not mentioned in F.I.R. and stated in the depositions. But considering the medical evidence and the depositions given by the eye-witnesses, the courts below were fully satisfied that the prosecution case was established beyond reasonable doubt and the depositions of PWs 1 to 3 deserved acceptance without giving undue importance to discrepancies which were not at all material. No exception therefore should be taken to well-reasoned judgments passed by the courts below. The learned Counsel for the State has also submitted that in the first information report it was only mentioned that the injuries were caused by sickle. It was not stated in the first information report that such injuries were caused by a sickle only used for the cultivation. In the deposition, witnesses have clearly stated that hunting sickles were used. It is, therefore, not correct to contend that improvements have been made in the deposition to establish prosecution case. He has, therefore, submitted that the appeal should be dismissed.