PARA SEENAIAH & ANR.versusSTATE OF ANDHRA PRADESH & ANR.

                         [2012] 5 S.C.R. 942


A                     PARA SEENAIAH & ANR.
                                   v.
              STATE OF ANDHRA PRADESH & ANR.
               (Criminal Appeal No. 802 of 2012 etc.)

                            MAY 10, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

         Penal Code, 1860 - ss. 324 and 326 - Assault -
    Subsequent death - Four witnesses to the incident - The
C   deceased in his statement to police implicating the accused
    - Medical evidence proving injuries on the deceased - Charge
    u!ss. 147, 148, 324, 307, 341, 302 r/w. s. 149 IPC - Trial court
    acquitting the accused persons of all the said charges but
    convicting A-1, A-2 and A-4 uls. 326 - High Court affirming
o   conviction of A-2 and A-4, but altering the conviction of A-1
    to uls. 324 and reducing the sentence - On appeal, held:
    Though the injuries on the deceased not proved to be cause
    of death, prosecution case cannot be rejected in toto -
    Prosecution case supported by the evidence offourwitnesses,
E   statement of the deceased and the medical evidence -
    Conviction and sentence as ordered by High Court, justified.

       Appellants-accused were charged for offences ulss.
  147, 148, 324, 307, 341 rlw s. 149 ands. 302 rlw s. 149 IPC
  for having caused death of one person. Prosecution case
F was that the accused and the complainant party formed
  two factions in the village and were having strained
  relationship and enmity. In order to avenge the attack on
  the life of son of A-3, the accused assaulted the deceased.
  The incident was seen by PWs 1 to 4. The deceased also
G made a statement to the Investigating Officer (Ex. P-25)
  implicating the accused persons.

        Trial court acquitted all the accused of all the
    charges, but convicted A-1, A-2 and A-4 for offences
H                                942
  PARA SEENAIAH & ANR. v. STATE OF ANDHRA              943
              PRADESH & ANR.

punishable u/s. 326 IPC and sentenced them to R1 for A
three years and fine of Rs. 500/-. Accused, State and also
the complainant challenged the order of the trial court.
High Court affirmed the conviction of A-2 and A-4 u/s. 326
IPC and the sentence, but altered the conviction of A-1
to u/s. 324 IPC and sentenced him to R1 for one year and B
a fine of Rs. 1000/-. Hence the present appeals.

    Dismissing the appeals, the Court

     HELD: 1. There is no infirmity or irregularity in the
view taken by the High Court that the statement of the         C
deceased made to the Investigating Officer (Ex.P-25) is
corroborated by the evidence of PW 1 to 4 about the
truthfulness of the overt acts attributed to A-1, A-2 and
A-4. The fact that the witnesses had seen the initial attack
on the deceased and returned to the scene of occurrence        D
after the accused had made their escape good, to enquire
from him as to what had happened is not unnatural in the
facts and circumstances of the case. In the absence of
any compelling reason to the contrary there is no reason
to interfere with the findings recorded by the High Court,     E
as to the genesis of the incident and the persons
responsible for the same. The prosecution has failed to
establish that the deceased eventually died on account
of injuries sustained by him resulting in the acquittal of
accused persons u/s. 302 IPC, but that part of the order       F
passed by the courts below does not warrant rejection
of the prosecution case in toto. There is sufficient medical
evidence on record, especially in the form of depositions
of the doctor (PW18) and the doctor (PW19) who
conducted the autopsy over the dead-body of the                G
deceased. There is, thus, ample medical evidence to
support the prosecution case that the deceased had
sustained injuries, no matter the same had not been
proved to be the cause of his death a week later. [Paras
12 and 13] [950-B-E; 951-D)
                                                               H
    944       SUPREME COURT REPORTS             [2012] 5 S.C.R.


A       2. Even on the question of sentence awarded to the
  appellants, there is no reason, much less a cogent one
  to interfere. The conviction of A2 and A4 under Section
  326 with a sentence of three years and fine with a default
  sentence awarded by the trial court as also the conviction
B of A1 under Section 324 and sentence of one year with a
  fine of Rs.1,000/- and in default imprisonment for three
  months in the circumstances of the case is perfectly
  justified. [Para 14) [951-E-F]

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
C   No. 802 of 2012 etc.

        From the Judgment & Order dated 28.12.2010 of the High
    Court of Judicature Andhra Pradesh, Hyderabad in Criminal
    Appeal No. 2241 of 2004.
D                                 WITH
    Crl. A. Nos. 804-805 & 806 of 2012.

        K.T.S. Tulsi, Chava Badrai Nath Babu, G.V. Rayudu, C.M.
    Angadi, Rameshwar Prasad Goyal, Priyanka Agarwal for the
E   Appellants.

        V. Sridhar Reddy, Ch. Leela Sarveshwar (for V.N.
    Raghupathy), 0. Mahesh Babu, Rameshwar Prasad for the
    Respondents.

F         The Judgment of the Court was delivered by

          T.S. THAKUR, J. 1. Leave granted.

        2. This is yet another case in which degenerate village
  politics has turned violent to claim a valuable human life. The
G prosecution story is that out of two factions in village
  Nagulavellatur one was led by Para Braimaiah (A-3) while the
  other was championed by Bodduluru Rathanam. In the election
  for the post of Sarpanch of Nagulavellatur village, Smt.
  Mahalakshmamma mother of Bodduluru Rathanam contested
H against Smt. Karnam Lalithamma who was supported by the
   PARA SEENAIAH & ANR. v. STATE OF ANDHRA                   945
        PRADESH & ANR. [T.S. THAKUR, J.]

accused persons. Smt. Karnam Lalithamma won the said                 A
election in the process embittering the relationship between the
two groups. It is also the case of the prosecution that complaints
and counter-complaints by the members of the two factions
were being made against each other before the police and
other authorities in relation to different issues to wreak revenge   B
against each other. The strained relationship and enmity
between the two factions led to an incident in which the
deceased is alleged to have made an attempt on the life of one
Para Yandaiah, son of accused No.3 on 6th April, 1996;
resulting in the registration of FIR No.17/96 against the former.    c
As an act of reappraisal accused Nos. 1 to 6, 8 to 10 and 18
are alleged to have attacked one Bathala Hajarathaiah and one
Thalluru Chinnaiah on 30th May, 1996 resulting in the
registration of Crime No.28/1996 against them. On the same
date at about 12.00 noon all the accused persons are alleged
                                                                     0
to have formed themselves into an unlawful assembly armed
with deadly weapons like cart pegs and rods with the common
object of killing the deceased left Nagulavellatur village in a
tractor and trailer belonging to A-1 for Yerraballi village which
is situate at some distance on the north eastern side of
Nagulavellatur. The prosecution case is that the accused found       E
the deceased coming along the garden of one Pendem
Venugopal, got down from the tractor and attacked him. The
deceased is alleged-to have run for his life towards the West
but the accused persons overpowered him and caused multiple
injuries including fractures on his forearm and legs. The incident   F
is alleged to have been seen by PWs 1 and 4 who informed
PWs. 5 and 6 about the same. PW6 rushed to the scene of
occurrence where he found the deceased lying in an injured
condition. On inquiry the deceased told him about the incident
and the fact that the accused had attacked and injured him           G
using cart pegs and rods. The deceased was shifted to
Chejarla Police Station in a tractor where his statement was
recorded by Sub-Inspector of Police. The police then shifted
the injured to the hospital at Nellore and registered Crime No.27
of 1996 for offences under Sections 147, 148, 324, 307, 341          H
    946      SUPREME COURT REPORTS                 (2012] 5 S.C.R.

A   read with Section 149 IPC. In the course of investigation the
    police claimed to have seized nine cart pegs and one 'Bitchuva'
    on the disclosure made by the accused. The deceased
    eventually died on 7th June, 1996 that resulted in the addition
    of Sections 148 and 302 read with Section 149 IPC to the case
s   already registered. The Court of Judicial First Class Magistrate,
    committed the case to the Court of Additional Sessions Judge,
    Fast Track Court at Nellore where the accused pleaded not
    guilty and claimed a trial.

       3. In support of its case the prosecution examined as many
C as 23 witnesses while the accused led no evidence in defence.
  The Trial Court eventually came to the conclusion that the
  prosecution had failed to prove the charge of murder against
  the accused persons and accordingly acquitted all the accused
  persons of the said charges. The Court, however, convicted A-
D 1, A-2 and A-4 for offences punishable under Section 326 IPC
  and sentenced them to undergo RI for a period of three years
  and a fine of Rs.500/- each, in default to further undergo SI for
  a period of three months each.

E         4. Aggrieved by the judgment and order passed by the
    Trial Court the appellants filed Criminal Appeal No.2241 of
    2004 while the State of Andhra Pradesh filed Criminal Appeal
    No.839 of 2007 against all the accused persons questioning
    their acquittal for offences with which they were charged at the
F   trial. Criminal Revision No.138 of 2005 was filed by the
    complainant against the order of acquittal of accused persons.

       5. By the judgment and order under challenge in this
  appeal, the High Court has, while dismissing the acquittal
  Appeal and the criminal revision mentioned above, affirmed the
G conviction of A-2 and A-4 for the offence punishable under
  Section 326 IPC and the sentence of imprisonment for a period
  of three years awarded to them. In so far as A-1 is concerned,
  the High Court has set aside the conviction of the said accused
  and instead convicted him for an offence punishable under
H Section 324 IPC and sentenced him to undergo rigorous
  PARA SEENAIAH & ANR. v. STATE OF ANDHRA                   947
       PRADESH & ANR. [T.S. THAKUR, J.]

imprisonment for a period of one year and a fine of Rs.1,000/      A
- and in default to undergo further imprisonment for a period of
three months.

     6. We have heard Mr. K.T.S. Tulsi, learned senior counsel
for the appellant and Mr. V. Sridhar Reddy, counsel for the
                                                                   8
respondent-State who have taken us through the relevant
portions of the two judgments of the Courts below and the
evidence adduced at the trial.

    7. The prosecution case rests primarily on the depositions
of PWs 1 to 3, 4, 6, 11 and 12, apart from the statement of Dr.    C
Krishnaiah (PW18) who happened to be the Civil Surgeon
posted at the relevant time at Government Hospital at Nellore
and Dr. C. Manohar (PW19) who conducted the post-mortem
examination of the dead-body of the deceased.
                                                                   D
    8. The Trial Court has upon appreciation of the depositions
of PWs 1 to 4 observed:

            "As seen from the evidence of P.Ws. 1, 2, 3 and 4
    who claimed themselves as eye witnesses to the incident
    it is clear that even though they depose that they actually    E
    witnessed all accused attacking the deceased it is clear
    from their evidence itself that when once the attack on the
    deceased by accused commences all these 4 (four)
    witnesses left that place out of fear.
                                                                   F
          P.W.1 at para 2 made it clear that after seeing the
    accused making an attempt to attack the deceased he
    was frightened and on hearing the cries of Chowdary,
    P.W.2, P.W.3 and P.W.4 came there and he started
    running P.W.3 and P.W.2 started running towards southern       G
    side and P.W.4 ran towards northern side of the main road.

          In the evidence of P.W.2 (1st page last line and 2nd
    page 5th line) it is said that P.W.2 out of fear ran away
    from the place.
                                                                   H
    948       SUPREME COURT REPORTS                   [2012] 5 S.C.R.


A              In the evidence of P.W.3 (page 2 to 15 lines) he
          deposed that due to fear of accused he did not go to
          rescue Demineni Chowdary and out of fear he (P.W. 3),
          P.W.1, P.W.3 went to the village Yerraballi and informed
          about the incident to the villagers of Yerraballi.
B
                In the evidence of P.W.4 (page 2, 15 to 19 lines) she
          deposed that due to fear she ran towards main road
          running from Chejerla to Kambampadu and in the village
          she found K. Penchalaiah (P.W.9) and narrated the
          incident to him."
c
       9. After discussing the evidence, the trial court concluded
  that PWs 1 to 4 were witnesses only to the initial attack made
  on the deceased and that the prosecution case mainly rested
  on the dying declaration made by the deceased before the
D Investigating Officer. The Court observed:

                "It is said in the earlier part of the judgment that when
          the eye witnesses, P .W.1 to 4 are treated as the persons
          who had only a chance to witnessing the initial attack
          made on the deceased by accused and immediately
E
          thereafter all these 4 (four) witnesses leaving that place out
          of fear. The case of prosecution depends upon the
          statement of the deceased given to P.W. 22 under Ex.P.25
          and since Chowdary is no more, the said statement can
          be used as a dying declaration given to P.W.22."
F
       10. The Court also recorded a finding that since the
  accused had caused injury only on the non-vital part of body of
  the deceased, there was no intention to do away with his life.
  The Court accordingly acquitted the accused of the charge of
G murder but convicted them for the offence punishable under
  Section 326 IPC while acquitting. them of other charges framed
  against them.

        11. The High Court has, upon reappraisal of the evidence,
H affirmed the above finding and observed:
PARA SEENAIAH & ANR. v. STATE OF ANDHRA                  949
     PRADESH & ANR. [T.S. THAKUR, J.]

  "It is true that learned Sessions Judge found that the        A
 evidence of P.Ws. 1 to 4 as to the actual attack on the
 deceased cannot be considered for the reasons from their
 own evidence. They have left the scene after seeing the
 accused chasing the deceased and they came only after
 the attack on the deceased. The positive evidence of the       B
 witnesses P.Ws. 1 to 4 is that they have enquired with the
 deceased and the deceased has given a statement to
 them as to the assailants on him. So far as the over tacts
 attributed by the deceased in Ex.P25 is concerned, there
 is no variation in the statements of P.Ws. 1 to 4 about the    C
 attack on him by A 1, A2 and A4. Therefore, if Ex. P25 is
 to be considered as a document pressed into service, the
 evidence of P .Ws. 1 to 4, who have immediately gone to
 the scene after the injured received the injuries in the
 attack, have clearly stated that they have made enquiries.
 Apart from it even if their evidence as to actual attack is    D
 not believed by the lower court, the fact remains that they
 were near the scene before attack cannot be excluded
 because all of them have stated that they have seen the
 accused going in the tractor and the deceased being
 present near the scene. In a factious village naturally when   E
 such an attack is likely to take place most of the persons
 who are disinterested will be withdrawing from the scene
 and going away for their own safety and therefore, there
 is no unnaturality in P .Ws. 1 to 4 withdrawing from the
 scene and going to the village and thereafter returning only   F
 after the attack on the deceased. The conduct of P.Ws. 1
 to 4 cannot be said to be unnatural and there is no reason
 to discard their evidence about the information given by
 the deceased to them immediately after the attack and
 within a short time and without there being any influence      G
 on the deceased to implicate the accused. Therefore,
 though there are some shortcomings in recording of
 Ex.P25 since we find corroboration from the evidence of
 P.Ws. 1 to 4 about the truthfulness over the overtacts
 attributed to A 1, A2 and A4 which are relied on by the        H
    950          SUPREME COURT REPORTS               [2012] 5 S.C.R.


A         lower court from the evidence of P.Ws. 1 to 4, we find that
          no appreciation of evidence was done by the lower court
          and the lower court has rightly accepted the statement of
          the deceased Ex.P.25, which is corroborated by the
          evidence of P.Ws. 1 to 4."
B        12. We do not see any infirmity or irregularity in the view
   taken by the High Court in adopting the above line of reasoning.
   The fact that the witnesses had seen the initial attack on the
   deceased and returned to the scene of occurrence after the
   accused had made their escape good, to enquire from him as
C to what had happened is not unnatural in the facts and
   circumstances of the case. In the absence of any compelling
   reason to the contrary we do not see any reason to interfere
   with the findings recorded by the High Court, as to the genesis
   of the incident and the persons responsible for the same. The
D. prosecution has indeed failed to establish that the deceased
   eventually died on account of injuries sustained by him resulting
   in the acquittal of accused persons under Section 302 IPC, but
   that part of the order passed by the Courts below does not
   warrant rejection of the prosecution case in toto. There is
E sufficient medical evidence on record, especially in the form of
   depositions of Dr. Krishnaiah (PW18) who noticed and certified
   the following injuries on the person of the deceased when he
   was brought to the hospital on 13th May, 1996 at 6.45 p.m.:

           "1.    Patient semi conscious. Responding to deep
F
                  stimulaus only.

           2.     Deformity and generalized tenderness of left fore
                  arm at its middle.

G          3.     2" long x 1" wide muscle deep lacerated wound on
                  lower 1/3rd of the left leg. Bleeding present.

           4.     1" diameter punctured wound x %" deep on middle
                  of left leg. Bleeding present.

H          5.     Diffused swelling of both ankle joints.
  PARA SEENAIAH & ANR. v. STATE OF ANDHRA                       951
       PRADESH & ANR. [T.S. THAKUR, J.]

         6.   Semi lunar lacerated injury on sole of left big toe. 2   A
              W' long x %" wide muscle deep. Bleeding present.
         7.   3" long x %"wide muscle deep lacerated wound in
              the web between right thumb and index finger.
              Bleeding present.                                        B

         8.   3" long x 2" wide reddish contusion over left
              buttock.

       13. Even Dr. C. Manohar (PW19) who conducted the
autopsy over the dead-body of the deceased has noticed the             C
fracture of lower end of both tibia and fibula on both sides with
bruising in the surrounding soft tissue and fracture of lower end
of left fore arm bones with bruising in the left soft tissue. There
is, thus, ample medical evidence to support the prosecution
case that the deceased had sustained injuries no matter the            o
same had not been proved to be the cause of his death a week
later.

      14. Even on the question of sentence awarded to the
appellants, we see no reason, much less a cogent one to
interfere. In our view the conviction of A2 and A4 under Section       E
326 with a sentence of three years and fine with a default
sentence awarded by the Trial Court as also the conviction of
A 1 under Section 324 and sentence of one year with a fine of
Rs.1,000/- and in default imprisonment for three months in the
circumstances of the case is perfectly justified.                      F

    15. In the circumstances these appeals fail and are hereby
dismissed.

K.K.T.                                       Appeals dismissed.