JUDGMENT
1. This appeal by the State is directed against the judgment of the learned Sessions Judge, Srikakulam, in SC No. 8 of 1992 by which the seven respondents herein were acquitted of the four charges framed against them in respect of an incident that happened on 29-4-1991 at Kondragolu village, Srikakulam District, resulting in the death of one Yella Dhannajaya Rao and injuries to his son Yella Srinivasa Rao alias Tejeshwar Rao.
2. The deceased Dhananjaya Rao, A5 and A6 are brothers, P.W. 1 Srinivasa Rao is the son of the deceased and P.W. 2, the wife of the deceased. The other accused, A4 and A7 and A1 and A3 also are brothers and are closely related to the deceased and P.Ws. 1 and 2. The prosecution case is that on 29-4-1991 three incidents happened in the village. The first incident was at about 8 a.m. when the cattle belonging to the deceased Dhananjaya Rao were impounded in the cattleshed of A1 on the ground that they had grazed the green gram crop in A1’s field. P.W. 1 approached A1 and requested him to release cattle by taking some money as compensation for which the reply of A1 was that at the rate of Rs. 50/- be paid per each cattle. P.W. 1 left the place saying that he would come later after his father returned from Hiramandalam village. The second incident occurred at 10 a.m. when the deceased, while returning from Hiramandalam, noticed the cattle belonging to A1 grazing in his field and so he drove the cattle to his house. When he reached the house of A1, both A1 and A2 freed the cattle and tied them in their cattle-shed. There was an exchange of hot words between the deceased on the one side and A1 to A3 on the other. P.W. 2, the wife of the deceased, went there and brought her husband back home. The third incident happened at 3 p.m. when Botta Venkata Rao, the farm-servant of the deceased, was returning home driving a double-bullock cart. On the way, it was stopped by the accused who untied the bullocks and drove them away to their cattle-shed.
3. This third incident that occurred at about 3 p.m. had culminated in the murder of Dhananjaya Rao and sustaining of injuries by P.W. 11 and also allegedly by A4. On being informed by his farm-servant about the accused driving away the bullocks, the deceased went to the house of A1 followed by P.WS. 1 and 2. It is alleged that A1 to A7 formed themselves into an unlawful assembly armed with deadly weapons with the common object of killing the deceased and in pursuance of the same A4 instigated the other accused to beat and kill the deceased. A4 and A1 beat the deceased on the head with a stout stick. A5 beat the deceased on the face with a knife. A6 speared into the eyes of the deceased with a ‘thenta’, a spear-like object. When P.W. 1 interfered he was beaten with sticks on various parts of the body by A1, A2, A3, A5 and A7. Thereafter, all the accused went to the house of the deceased and broke open the door of the house as P.W. 2, the wife of the deceased, did not open the doors. With the injuries sustained in the attack, P.W. 1 fell down unconscious and he regained consciousness only at about 4-30 p.m. Dhananjaya Rao died at the spot.
4. Venkata Rao, the farm-servant of the deceased, went to Hiramandalam Police Station which is at a distance of 8 kilometres and informed the Sub-Inspector, P.W. 4, at about 8 p.m. An entry in the General Diary of the police station was made by the Sub-Inspector about the information given by Venkata Rao and he reached the house of P.W. 1 where he recorded exhibit P1, the report given by P.W. 1, and registered the same as Crime No. 16 of 1991 under sections 147, 148, 307, 302, 324, 341 and 427, IPC. By the time the Sub-Inspector reached the village it was 9 p.m. Exhibit P6 is the original FIR sent to the Magistrate, Pathapatnam. The injured P.W. 1 was sent to the Primary Health Centre, Kothuru, by the Sub-Inspector, P.W. 4, where he was examined by the doctor, P.W. 5, on 30th April 1991 at 7 a.m. The doctor, P.W. 5, found, as many as twenty-one injuries on P.W. 1. He sent the injured P.W. 1 to the Government Hospital, Srikakulam, for taking of X-Ray of the skull, the right hand, the right leg, the right ankle and fight shoulder. The X-Ray disclosed fracture of the fifth metacarpal bone. Injury No. 19 is grievous in nature and the other injuries are simple according to the opinion of the doctor in exhibit P7, the wound certificate. The doctor also said that the injuries might have been caused by a blunt object like stick about 12 to 24 hours prior to the examination of PW 1.
5. On receipt of the information from the Sub-Inspector, the Inspector of Police (P.W. 7) reached the hospital at Kothuru and from there he went to the scene of offence in the village where he drafted exhibit P2, the observation report, in the presence of PW 3 and another. Blood-stained earth and control earth were also seized. The inquest was held over the dead body between 7 a.m. and 9.30 a.m. on 30-4-1991 by P.W. 7 and exhibit P3 is the inquest report. The Inspector had sent the body of the deceased to the Government Hospital, Pathapatnam, for post-mortem examination. P.W. 6, the Deputy Civil Surgeon, conducted the autopsy at 3 p.m. on 30-4-1991 and noticed the following fourteen ante-mortem external injuries :
“1. Contusion of 8 cms. diametre over the right parietal region with depressed fracture of parietal and temporal bones;
2. Contusion of 6 cms. diametre over the left parietal region with depressed fracture of partietal and temporal bones;
3. Lacerated injury 10 x 1 x 1/2 cms. just below the chin with fracture of left mandible;
4. Lacerated injury 3 x 1/2 x 1/2 cms. on the left side of the neck;
5. Abrasion of 5 cms. diametre with contusion of 5 cms. diametre underneath the front of the neck;
6. Contusion of 8 cms. diametre over the left shoulder;
7. Contusion of 3 cms. diametre front of lower third of left fore arm with both bones fractured;
8. Contusion of 3 cms. diametre back of right wrist;
9. Contusion of 2 cms. diametre front of right elbow;
10. Lacerated injury 2 x 1/4 x 1/4 cms. front of right knee;
11. Contusion 2 cms. diametre front of left knee;
12. Contusion 6 x 4 cms. medial side of lower third of right leg with both bones fractured;
13. Lacerated injury 4 x 1 x 1/4 cms. front of lower third of left leg; and
14. Contusion 5 cms. diametre over interscapular region.”
The opinion of he doctor is that the deceased appeared to have died due to the cumulative effect of all the injuries which could have been caused with blunt weapons as well as bluntedged cutting weapons like sticks, knives and hook-shaped spear ‘thenta’. The doctor also said that the injuries were sufficient to cause the death of the deceased in the ordinary course of nature. Exhibit P8 is the post-mortem certificate. The Inspector also prepared exhibit P9, rough sketch of the scene of offence. On 1-5-1991, P.W. 7, the Inspector, received a counter-report, Exhibit P10, from A4 alleging that the deceased and PW 1 are the aggressors. On the basis of exhibit P10-report Crime No. 17 of 1991 under section 324 read with Section 34, IPC was registered. After conducting investigation into Crime No. 17 of 1991, the Inspector referred the case as non-cognizable. The charge-sheet was laid by P.W. 8, the Circle Inspector, who succeeded P.W. 7.
6. Before the trial court eight witnesses were examined by the prosecution in support of its case as to the culpability of the respondents herein. Of the eight witnesses, PWs. 1 and 2 are the eye-witnesses; PW 1 is also an injured witness. No witness was examined on the side of the defence but Exhibits D1 and D2, contradictions in the 161 statement of PW 2, were brought on record. The plea of the accused, when examined under section 313, Cr.P.C. was one of denial. In the cross-examination of PW 1, certain suggestions were made as to how the incident had happened. PW 1 and the deceased went to the house of A1 armed with a stick and a hook-shaped spear ‘thenta’ and PW 1 beat A4 as a result of which A4 fell down on the ground and seeing that the inmates of the house revolted against PW 1 and chased him. In the middle of the way in the street PW 1 sustained injuries and fell down at the house of one Thota Ramanayya.
7. These suggestions were denied by PW 1 in the cross-examination.
8. The learned Sessions Judge acquitted the accused disbelieving the story of the prosecution. The reasons given by the learned Sessions Judge are that the prosecution did not come out with the true version. When Venkata Rao, the farm-servant of the deceased, had complained to the Sub-Inspector of Police, PW 4, and when an entry to that effect was made in the general diary, the suppression of the general diary was suggestive of the prosecution not coming forth with true story. The non-examination of the farm-servant, according to the learned trial Judge, had the effect of rendering Exhibit P1, the first information report, hit by Section 162, Cr.P.C. The evidence of PW 7, the Inspector of Police, who investigated into the case was seriously faulted by the learned Sessions Judge. The evidence of PW 7 was to the effect that he investigated into the crime registered on the complaint, Exhibit P10, lodged by A4 and referred it as non-cognizable. The learned Sessions Judge criticised the evidence of PW 4 since the offence under section 324, IPC is a cognizable one. The learned Sessions Judge also adverted to the fact that the main incident happened in front of the house of A1 and, therefore, it can be presumed reasonably that the attack was started by the deceased since the deceased and PW 1 went to the house of A1. A further ground mentioned by the learned trial Judge for acquitting the accused is the inconsistency between Exhibit P1 in which it was alleged that A6 speared into both the eyes of the deceased with a hook-shaped spear ‘thenta’ but the medical evidence disclosed no injuries on the eyes of the deceased.
9. The learned Public Prosecutor contends that the view taken by the learned Sessions Judge for disbelieving the version put forward by the prosecution is totally unsustainable in law. On the evidence brought on record there is no possibility to take a view other than the one that the accused are guilty of the offence with which they were charged. Both the material prosecution witnesses and the accused having been closely related there was no difficulty about the identification of the accused. PW 1, the injured witness, sustained as many as twenty-one injuries. No part of his body was left intact. PW 2, the mother of PW 1, also has witnessed the occurrence. No cogent reasons were assigned by the learned trial Judge for disbelieving their evidence. The comment of the trial court that the failure to examine the farm-servant Venkata Rao is fatal to the prosecution case is totally unwarranted. When the evidence of PW 7, the Inspector of Police, is to the effect that the whereabouts of the farm-servant were not known it is ununderstandable why the learned trial Judge has made such a comment about the prosecution case.
10. After going through the evidence on record and also bearing in mind the fact that this is an appeal against acquittal, we are of the considered view that the appeal deserves to be dismissed.
11. The incident in question happened in front of the house of A1. All the accused are closely interrelated. The evidence of PW 1 is that he and his father went to the house of A1 to question as to why the bullocks were untied from the cart and driven to their cattle-shed. The evidence of PW 1 is to the effect that he, his father and mother also went to the house of A1. His deceased father demanded of A1 to release the bullocks and at that juncture A4 alerted the other accused to beat and kill the deceased. Thereafter, the attack was made by A1 with a stick on the head of the deceased. A5 hit the deceased with a knife on the face and the other accused also attacked and beat the deceased indiscriminately with the sticks and hook-shaped spear. When PW 1 interfered, he was beaten by A1 with a stick on the right part of the neck, A5 beat him with a stick on the right upper arm and the right leg, A7 dealt a blow with a stick on the back. A3 hit him with a stick on the right side of the body. A2 had beaten with a stick on right palm and the other accused beat him indiscriminately. He asserted that his mother had witnessed the incident and thereafter she went home. First of all, it was doubtful whether the incident was witnessed by PW 2, the mother of PW 1. If she had been when her husband was subjected to murderous attack she would have definitely either interfered or raised alarm to attract the attention of the persons in the locality. Her conduct in merely witnessing the attack on her husband and the son and returning home does not appear to be normal. It was elicited in the cross-examination of PW 2 that in an earlier statement to the police, which was marked as Exhibit D1, she stated that she witnessed the incident from the front yard of her house and she cried that her husband should be saved. Neither PW 1 nor PW 2 has stated that any of the accused sustained injuries. If that be so, it was ununderstandable as to how injuries came to be found on A4. It is in the evidence of PW 7, the investigating officer, that on 1-5-1991 he received Exhibit P10, a counter-report, from A4 on the basis of which Crime No. 17 of 1991 was registered under section 324, IPC. In Exhibit P10, according to PW 7, the presence of A1, A3, A5 and A6 was mentioned at the time when the incident had taken place. This was investigated by him and referred as non-cognizable. In Exhibit P10 it is mentioned that the deceased and PW 1, while scolding A1, A4 and three others, went to the house of A1 armed with ‘thenta’ (hook-shapepd spear) and stick. PW 1 had then beaten A4 twice on the head and wounded him. What type of injury A4 has sustained, there is no evidence. It is true that Exhibit P10 was registered under section 324, IPC but that is not conclusive of the nature of injuries allegedly sustained by A4. When the offence disclosed by Exhibit P10 is cognizable it is ununderstandable why the Inspector of Police had chosen to testify that he referred it as non-cognizabe. From a reading of Exhibit P10 it appears that the incident resulting in the injuries allegedly sustained by A4 and the incident in which PW 1 sustained injuries and his father died are one and the same. The failure on the part of the prosecution to explain the injuries found on A4, in our opinion, is fatal to the case of the prosecution. Where the prosecution fails to explain how the accused happened to sustain injuries, the Supreme Court held in Ram Millan v. State of Uttar Pradesh, that :
“The version given by the defence cannot be rejected. Consequently a grave doubt arises about the credibility and truthfulness of the version put forward by the prosecution.”
12. The earliest information as to how the incident occurred was suppressed by the prosecution. It is in the evidence of the Sub-Inspector, PW 4, that the farm-servant Venkata Rao came to the police station and informed about the death of the deceased Dhananjaya Rao. There was an entry made to that effect in the general diary by the Sub-Inspector. That entry in the general diary was not produced. The learned Sessions Judge, therefore, in our view, rightly commented that the prosecution case bristlels with suspicion because of the suppression of the first information report given by the farm-servant Venkata Rao as to how the incident had taken place.
A Division Bench of the Madras High Court in Venkatanna v. State, 1952 Mad Weekly Notes Cri 18 at 20 adverting to the duty of the prosecution in a criminal trial involving complaint and counter-complaint, observed :
“In a complaint and counter-complaint such as this obviously arising out of the same transaction when the prosecution proceeds on the basis of the same complaint we think it is the duty of the prosecution to exhibit the counter-complaint through the Police Officer who recorded it and also to prove medical certificates of persons wounded on the opposite side and place before the court a definite case which they ask it to accept. We must deprecate the prosecution in such cases accepting in to one complaint and examining only witnesses who support it and give no explanation at all for injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the Court to enable it to arrive at the truth and a just decision.”
13. The argument of the learned Public Prosecutor is that assuming that the incident in which A4 sustained injuries and the incident resulting in the death of the deceased are one and the same, as there were no injuries on the other accused, they are not entitled to acquittal. We are not inclined to accept this contention. When PW 1 and his father went to the house of A1 for the purpose of getting their bullocks released, it is reasonable to assume that the attack was started by them. May be in the course of the attack after A4 was injured, the other accused retaliated. On this aspect, there is no evidence. The version of the defence that there was a scuffle resulting in the injuries to A4 appears to be not implausible. Perhaps sensing that A4 was subjected to a murderous attack the other accused who were closely related to A4 attacked the deceased and PW 1. On this, we cannot draw any definite inference.
14. From what has been discussed above, it is difficult for us to hold that the evidence placed by the prosecution before the Court leads only to one conclusion, namely, that the accused are guilty of the offence with which they were charged. We are not inclined to agree that the second view is not possible.
15. The appeal, therefore, fails and accordingly it is dismissed.
16. Appeal dismissed.