DALAPATHI BALAYYA Vs. STATE OF A P

JUDGEMENT

(1.) A-1 to A-6 in S.C.No. 9/98 on the file of Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam are the appellants in the present Appeal.

(2.) In Cr.No. 13/97 of Paderu Police Station charge-sheet was filed under Sections 302 and 324 IPC r/w Section 34 IPC and the Maridal Executive Magistrate, Paderu in P.R.C.No. 2/97 committed the matter to the Court of Session and the matter was made over to Family Court-cum-V Additional District & Sessions Judge, Visakhapatnam and the learned Judge after framing the charges, in view of the fact that the accused pleaded not guilty, proceeded with the recording of evidence and recorded the evidence of P.W. 1 to P.yv. 12 and the evidence of P.W. 13 was recorded by the Junior Civil Judge/IX Metropolitan Magistrate, Bheemunipatnam by virtue of an order made by the Metropolitan Sessions Judge, Visakhapatnam dated 2-1-1999 communicated in Dis.No. 5, dated 2-1-1999 at his instance under Section 285 of the Code of Criminal Procedure 1973 and the learned Judge further marked Exs.P-1 to P-18 and M.Os. 1 to 8 ultimately came to the conclusion that A-1 to A-6 are guilty for an offence under Section 304 Part I IPC and not under Section 302 IPC and A-2 is guilty for an offence under Section 324 IPC for causing injury on the person of P.W. 1 and.however held that the case is not made out under Section 324 IPC r/w Section 34 IPC as against the other accused and hence A-1 and A-3 to A-6 are entitled to benefit of doubt for the offence under Section 324 r/w Section 34 IPC in relation to P.W. 1. Hence the present Criminal Appeal.

(3.) Sri Praveen Kumar, the learned Counsel representing the appellants made the following submissions. The Counsel would submit that when the common intention under Section 34 IPC had been disbelieved the injury caused by each one may have to be established by the prosecution and further the injury which led to the death of the deceased also should be specifically established and in the absence of the same, the conviction cannot be sustained. The learned Counsel also would submit that due to political reasons this case had been foisted. The learned Counsel also submitted that in the F.I.R. it was specified that A-1 beat on the head but in the Court it was deposed that A-1 beat on the head and others on the back and there are no corresponding injuries on the back of the deceased as per the medical evidence. The Counsel also pointed out relating to the delay in giving the F.I.R. The learned Counsel also would submit that the presence of P.W. 3 is highly doubtful since the name of P.W. 3 was not mentioned in the F.I.R. The learned Counsel also would submit that A-6 also gave a complaint and a crime was registered in relation to the same and the Investigating Officer also admits about this aspect. The learned Counsel also would submit that a peculiar course had been adopted in this matter as far as P.W. 2 is i concerned and specifically permission was not sought for by the prosecution to declare him as hostile but the prosecution cross- examined this witness and hence the evidence of this witness shall be treated just like any other witness in view of Section 154 of the Indian Evidence Act, 1872. The learned Counsel also pointed out to the discrepancies in between the direct evidence and the medical evidence. The possibility of the death due to not giving proper treatment also cannot be ruled out and for reasons best known the concerned Doctors also had not been examined. Further, P.W. 5 and P.W. 6 were declared hostile. The learned Counsel also had taken this Court through the evidence of P.W. 7, P.W. 8, P.W. 9 and P.W. 10. The learned Counsel ultimately would point out in the light of the facts and circumstances the conviction recorded by the learned Judge cannot be sustained. The Counsel also placed reliance on certain decisions in this regard.