VALLABHANENI VENKATESHWARA RAO Vs. STATE OF A P

JUDGEMENT

(1.) These two appeals are directed against the com mon judgment of the Andhra Pradesh High Court. Seven accused persons had filed the appeal before the High Court questioning their conviction for offences punish able under Sections 302 read with Sections 149, 148 of the Indian Penal Code, 1860 (in short the IPC). Additionally, A1 appellant in present Criminal Appeal No. 373 of 2008 was convicted for offence punishable under Section 341, IPC. Charge was made against all the accused persons that on 9.10.2002 at about 11.30 a.m. all of them formed an unlawful assembly near the fish tanks of Chevuru village and beat Adusumalli Ranga Rao (hereinafter referred to as the deceased) with casuarian sticks and caused his death.

(2.) The version of the prosecution as put forth is to the effect that all the material witnesses as well as the accused are residents of Chevuru village of Mudinepalli Mandal, Krishna District and there have been ill feelings between the accused and the prosecution witnesses. Accused Nos. 1 and 2 are brothers, 4 and 5 are the sons of A.1 and A.2. A.3 is the cousin and A.6 and A.7 are brothers-in law of A.1. P.Ws. 1 to 6 belong to one group, and the deceased is the brother of PWs 3 and 5. P.W. 4 is the sisters son of the deceased. On 9-10-2002 P.W.1 went to Singarayapalem village to bring a doctor by name B.Satynarayana (L.W.2) to attend his maternal grandmother who was suffering from ill-health. While bringing the doctor on his scooter, at that time the deceased was also walking along on the road. When P.W.1 crossed Singarayapalem Centre, the deceased stopped his scooter for a lift. Then the de ceased was picked up on his scooter and when they reached Chevurupalem Anjaneya Swamy temple, at that time P.W.2 was also coming by walk. Since the road repair works were going on, P.W. 1 asked the doctor (L.W. 2) and the deceased to get down and when he was coming on the road margin along with the scooter and reached the tanks of Dr.Vijay Kumar, by stopping his scooter and was waiting for the arrival of the Doctor (L.W.2) as well as the deceased, at that point of time all the accused who were holding stout sticks and were proceeding towards Singarayapalem started abus ing the deceased. Later, accused No. 1 caught hold of the deceased and beat with a stout stick on the head of the deceased. A.4 and A.5 beat the deceased on the right shoulder. A.2 and A.3 also beat the deceased on the left thigh and further beat near the joint of leg. A.6 and A.7 also beat the deceased on the right leg. At that time the road coolies who are attending road works also raised cries requesting not to beat the deceased. Later P.W.1 went to the village and informed about the incident to P.W.3. Thereafter, P.W.3 came to the scene of offence and came to know about the incident through the deceased. Immediately for some time the deceased was taken to the hut of Jagan (L.W. 15) situated on the tank bund and thereafter, the deceased was shifted to Mudinepalli Police Station in Car. Assistant Sub-Inspector, P.W.8 who was in the Police Station recorded the statement of the deceased under Ex.P.12 and initially registered a case in Crime No. 96 of 2002 for the offences punishable under Sections 341, 324, 325 read with 34, IPC in P.S.Mudinepalli and issued FIR to all the concerned. Ex.P.13 is the FIR. Afterwards, the deceased was referred for treatment to the Government Hospital, Gudivada through PC No. 795 along with a hospital memo. P.W.10 is the doctor treated the deceased. Ex.C.2 is the relevant entry in Ex.C.1 the accident register pertaining to the treatment of the deceased. Later on P.W.8 took up investigation and went to Gudivada hospital and recorded the statement of the deceased while he was alive, under Ex.P.14 and recorded the statements of P.Ws. 3, 5, 4 and left the Gudivada Hospital and reached Chevuru village and also examined and recorded the statements of P.W. 1 and L.W.2 and again visited Chevuru village examined and recorded the statements of L.Ws.12 and 13 and secured the presence of mediators PW.6 and L.W.21 and observed the scene of offence in the presence of the above mediators and got prepared the observation report under Ex.P.1. Further, he seized one pair of Hawai chappals (MO8) and drew the rough sketch and thereafter examined P.Ws. 15 and 16 and visited the house of the accused and came to the Police station at about 6.30 p.m. on 9-10-2002. Mean while Police Constable 975 came to the Police Station and handed over the death intimation of the deceased under Ex.P.15 and consequently P.W.8 altered the Sec tion of law into one under Sections 147, 148, 341, 302 read with 149 IPC. Ex.P.16 is the altered F.I.R. Subsequently, P.W.9, the Circle Inspector of Police took up further investigation. On a requisition given by P.W.9, the Judicial First Class Magistrate Kaikaluru sent the material objects to RFSL, Vijaywada along with a letter of advice under Ex.P. 17. After receipt of the RFSL report under Ex.P. 19 and post mortem certificate under Ex.P.20, P.W.9 filed charge sheet before the Judicial First Class Magistrate, Kaikaluru and later on, the case was committed to the Court of Session. As accused persons pleaded innocence trial was held. On consideration of the evidence on record the trial Court found that the accused persons were guilty as aforenoted. Reliance was placed on two dying declarations i.e. Ext.P-12 and Ext.P-14. Questioning their conviction 7 convicted persons filed appeal before the High Court which as noted above held that A4 and A7 were not guilty and they were acquitted of the charges. For their acquittal main reason is that Ext.P-14 was disbelieved. So far as accused 1 to 3 are concerned, the appeal was dismissed. The present two appeals are by A1 to A3. It is to be noted that there were three dying declarations. The High Court has given various reasons for rejecting Ex.P14 for recording acquittal of A4 to A7.

(3.) According to learned counsel for the appellant the reasons for rejecting Ex.P14 are equally applicable to the Ex.P12 and, therefore, the present appellant are entitled to acquittal. A1 is the appellant in Criminal Appeal No. 373 of 2008 while A2 and A3 are the appellants in Criminal Appeal No. 393 of 2008.