PRAHLAD APTO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This appeal is directed against the convictions recorded and sentences imposed against accused Nos. 1, 2, 4, and 5 by the Court of Session, Srikakulam in Sessions Case No. 27 of 1990. Totally, there were 8 accused; but, as accused Nos. 6 and 8 were minors, their case was separated. Accused Nos. 3 and 7 were acquitted of all the charges. The accused were prosecuted for the offences punishable under Section 148(A1 to A5 and A7), 302(A1 & A7), 302 read with 149(A2 to A5), 324(A1, A2, A3 and A5), 323(A2 and A7) and 326 (A1) of Indian Penal Code. A1 was convicted for the offences under Sections 304, Part II, 326 and 324 of IPC, and was sentenced to undergo rigorous imprisonment for 3 years, 2 years and 6 months respectively. A2 was convicted under Section 324, IPC, and was sentenced to suffer rigorous imprisonment for 6 months. A4 and A5 were also convicted under Section 324, IPC and were sentenced to undergo 6 months rigorous imprisonment each. The said accused A1, A2, A4 and A5 are the appellants herein.

(2.) The accused party and prosecution party are closely related. A2 and PW1 are real brothers and they reside in the thatched sheds adjoining each other. A7 is the wife of A2, while A1, A3, A4 and A6 are their sons and A8 is their daughter. The deceased, PWs. 2 and 3 are there sons of PW1, while PW4 is the daughter of PW2 and PW5 is the wife of the latter. PWs. 6 to 8 are the neighbours, while PW9, is an inquest and panch witness. PW 10 is the Doctor. While PW11 is the Police Constable, PW12 is the Sub-Inspector. PW13 is the Inspector of Police, who investigated into the case and filed the charge sheet.

(3.) The case of the prosecution is that not only the prosecution and accused party are residing in the huts adjoining each other, but their lands also adjoin each other. The land of the accused party intervene between the land of the deceased party and one Mr. Jogi Panthulu, an Advocate. As sufficient water did not strike in the land of the deceased party, the latter had contacted with Mr. Jogi Panthulu for supply of water from the well situated in his field, which has to pass through the land of the accused party. It is alleged that, on 29-5-1989 at about 6.00 A.M., when PW1 went to the field, he found that the water supply was disrupted on account of cutting of the pipe carrying the water to his field from the well of Jogi Panthulu. He did not make accusation against any body and he returned back. At a little later, his daughter-in-law i.e. PW5 went to the field and on finding that the pipe was cut off, she abused the persons who were responsible for that without naming anybody and that A2 and A7 took exception to that and that while A7 and her daughter (A8) caught hold of her tuft hair, A2 beat her. She went and complained to the deceased and other prosecution witnesses. It is further alleged that the accused party came to the place in front of the house of PW1 and attacked them with rice pounder and sticks and injured them and that on account of the same, the deceased viz., Balli Apto died while others received injuries. PWs. 1 to 8 are claimed as eye-witnesses. It is needless to mention that PWs. 1 to 5 are from the same family and are interested witnesses. PWs. 6 to 8 are projected as independent witnesses, who are said to have witnessed the occurrence, but, PW6 turned hostile. In Ex. P1, which was lodged on 29-5-1989 by PW1 to PW12, the overt acts of the accused were not mentioned. The names of the witnesses were also not mentioned. Even the place of offence is not mentioned. The theory set up by the prosecution that firstly PW1 went and having found that the pipe was cut off, he abused the persons without naming them and thereafter PW5 went and that she was beaten and she has complained about the same to him and others is not at all stated. The role attributed to A7 and her daughter A8 that they squeezed the testicles of the deceased resulting in his death is conspicuously absent in Ex. P1. Another significant factor is the absence of mention of rice pounder being handled by any of the accused. As this is a fight between the close relatives i.e. the deceased party forming one faction and the accused another and as PWs. 1 to 5 belonging to prosecution party, their evidence cannot be believed without any corroboration and more particularly when they say that the other independent witnesses were present. Further, as compared to the recitals of Ex. P1, PWs. 1 to 5 improved in their version a lot leading to their discredence. Their evidence is riddled with material omissions and contradictions. PW6 did not support the case of the prosecution and as such he is of no assistant to its case. Coming to PW7, as already stated, his name was not mentioned in Ex. P1 (FIR). Further, it is elicited from PW7 that his mother is the elder sister of PW1's wife. He did not support the version of PWs. 1 to 5 on material particulars excepting stating like parrot with regard to the alleged injuries inflicted by the accused party on the deceased party. His evidence does not inspire confidence and rightly his witnessing the occurrence was ruled out by the lower Court. In fact, he has admitted that he was not at all examined by the police and coupled with the factor his name was not mentioned in Ex. P1, is sufficient to hold that he was not present at the scene of occurrence, apart from other reasons. The same reasoning is applicable to PW8 also. The only minor difference being that he is not a relative, but the way he spoke and that too, falsely, shows that he is interested in the prosecution and he has been set up as a witness. The lower Court also disbelieved the presence of PW8 and rightly so. One very significant factor is that Ps. 1 to 8 are not examined on the day of occurrence and in fact, PWs. 1 to 5 did not state anything to the police on the day of the occurrence excepting lodging Ex. P. 1. The statements of PWs 1 to 5 are recorded on the 4th day of the occurrence of the incident while that of PWs. 6 to 8 on the 5th day of the occurrence. There is absolutely no explanation for such delayed examination of the prosecution witnesses, when they were readily available on 29-5-1989.