D V SHANMISOHAM Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment of the High Court of Andhra Pradesh dated 15th April, 1994 in Criminal Appeal No. 695 of 1993 arising out of Sessions Case No. 251 of 1991. The two appellants along with three others stood charged of having committed several offences and were tried by the Additional Sessions Judge, Chittoor at Tirupati and by judgment dated 9th July, 1993 all of them were convicted under different sections of the Penal Code. All of them except A-2 were convicted under Section 302/149, I.P.C. and were sentenced to imprisonment for life. They were also convicted under Section 148 and sentenced to imprisonment for one year, under Section 307/149 they were sentenced to imprisonment for five years and under Section 324/149 were sentenced to imprisonment for one year, all the sentences have been directed to run con-currently. A-2 was convicted under Section 302 for causing murder of Mohan and Sekhar, and was sentenced to imprisonment for life, convicted under Section 307 and sentenced to rigorous imprisonment for 5 years and a fine of Rs. 200/- in default imprisonment for 2 months, convicted under Section 324, I.P.C. and sentenced to imprisonment of one year, and 324/149, I.P.C. and sentenced to imprisonment for one year, sentences to run concurrently. In appeal, the High Court by the impugned judgment set aside the conviction of accused Nos. 3, 4 and 5 and acquitted them of all the charges. The High Court also set aside the conviction and sentence of accused No. 1 under Sections 148, 307/149 and 324/149, I.P.C. His conviction under Section 302/149 was modified to one under Section 302/34 and sentence of imprisonment for life was confirmed. His conviction under Section 324 for causing hurt to PW-2 was also maintained. So far as accused No. 2 is concerned the High Court confirmed the conviction and sentence passed by the learned Sessions Judge for the offence under Sections 302 and 307, I.P.C. His conviction under Sections 148 and 324/149 and the sentence passed thereunder was set aside and thus the present appeal.

(2.) The prosecution case in nutshell is that all the accused persons belong to village Dasarimatam and the complainant party belong to the same village. Some incident had happened between the two groups on 6th May, 1990 in respect of which a complaint had been lodged by accused No. 1. On account of the same there was ill-feeling between the two groups and on the date of occurrence on 22nd September, 1990 at 8.00 p.m., when one Natarajan was coughing on account of his fever the accused No. 1 was passing by that road on his scooter. He took this to be a taunting, and therefore, brought his brother accused No. 2 and picked up quarrel and challenged him. Said Natarajan was a relation of the complainant. Shortly thereafter at 10 p.m. the complainant PW1 and the deceased-Mohan were returning from a theatre and when they had reached the house of one V. Murli the five accused persons formed themselves into an unlawful assembly and attacked the complainant and the deceased with deadly weapons. While accused No. 1 caught hold of deceased-Mohan accused No. 2 stabbed him with a knife on the abdomen and Mohan fell down wounded. When the complainant, PW-1 intervened he was also stabbed with a knife by accused No. 2 on his left hand and accused No. 1 dealt a blow with a stick on the right hand. PW-1 then raised an alarm and on hearing the cries his relatives including Sekhar who is the other deceased came out of their houses and rushed towards Mohan. The five accused persons then also attacked these people and while accused No. 3 caught hold of Sekhar, accused No. 2 stabbed him with knife on his abdomen and caused fatal injury. These accused persons more particularly accused No. 4 and 6 hurled stones which caused injury to the member of the complainant group. Accused No. 1 also stabbed one Ravi Kumar with a knife on his left elbow, as a result of which said Ravi Kumar was injured. The injured persons were taken to the hospital for treatment and Mohan died during the mid-night on account of shock and haemorrhage as a result of the injuries sustained by him. The Sub-Inspector of Police, East PS, on receiving the information about the incident rushed to the hospital and recorded the statement of injured Sekhar at 5 a.m. on 23rd September, 1990 and Sekhar ultimately died in the hospital on 24th September, 1990 at 9.25 p.m. On the basis of information given by PW-1 the investigation proceeded and on completion of investigation charge-sheet was submitted against the five accused persons as already stated and on being committed they stood their trial.

(3.) The prosecution to establish the charges against the accused persons examined as many as 23 witnesses and exhibited a large number of documents. The defence did not examine any witness but exhibited several documents including the former statements of the prosecution witnesses recorded under Section 161, Cr. P.C. for the purpose of contradicting them during the course of their examination during trial. The learned Sessions Judge on scanning the evidence on record came to the conclusion that the prosecution witnesses are reliable and basing upon their testimony convicted the accused persons and sentenced them as already stated. The High Court, however, in the appeal reappreciated the evidence led by the prosecution and came to the conclusion that the prosecution has been able to establish the charge beyond reasonable doubt with regard to the role played by accused Nos. 1 and 2 for causing injuries to deceased-Mohan on account of which Mohan ultimately died. But so far as the injuries caused on Sekhar though the prosecution has been able to establish the role ascribed by accused No. 2 on that score but the role ascribed to accused Nos. 3 and 5 have not been established beyond reasonable doubt. In other words, the High Court discarded the evidence of the eye-witnesses so far as they ascribed different parts played by accused Nos. 3, 4 and 5 in forming the alleged unlawful assembly and in assaulting the complainant party essentially because none of them in their earliest version to the police had implicated these accused persons. Having come to the aforesaid conclusion the High Court held that none of the charges against accused Nos. 3, 4 and 5 can be said to have been established by the prosecution and as such they were acquitted of the charges. But relying upon the evidence of the self-same prosecution witnesses the High Court came to hold that the role ascribed to accused Nos. 1 and 2 in causing injuries on deceased-Mohan and Sekhar may be held to have been established beyond reasonable doubt, and therefore, convicted A-2 under Section 302, I.P.C. and A-1 under Section 302/34, I.P.C. The High Court also convicted these accused 1 and 2 who are the appellants in this appeal under Section 324, I.P.C. for causing hurt to PW-2 and PW-1 respectively and further convicted accused No. 2 under Section 307, I.P.C. for attempting to commit the murder of PW-7. It may be stated that the High Court gave a positive finding on reappreciating the evidence that accused Nos. 4 and 5 have not pelted stones as narrated by the prosecution witnesses and this finding will have a vital bearing in deciding the present criminal appeal. It may also be stated that the State has not preferred any appeal against the acquittal of accused Nos. 3, 4 and 5 which order of acquittal has thus become final.