Yarasani Obulesu & Anr. Vs. The State of Andhra Pradesh
EmailAppeal: Criminal Appeal No. 264 Of 1990
Petitioner: Yarasani Obulesu & Anr.
Respondent: The State of Andhra Pradesh
Apeal: Criminal Appeal No. 264 Of 1990
Judges: M.K. MUKHERJEE & G.T. NANAVATI , JJ.
Date of Judgment: Jun 09, 1995
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Sections 148, 304 and 324 – Murder – Eye witnesses – Held that Courts below have properly appreciated the evidence and there was no infirmity either in evidence or its appreciation – Further held that non mention of name of Accused No. 1 in dying declaration was not fatal to prosecution – Conviction of three accused upheld.
JUDGEMENT:
NANAVATI, J. :
1. The above appeal arises out of the judgment of the Andhra Pradesh High Court in Criminal Appeal No. 656 of 1989. Special Leave Petition No. 3147/1995 is filed by the State of Andhra Pradesh for obtaining leave to appeal against the judgment of that High Court in Criminal Appeal No.655 of 1989. Both these appeals were filed against the judgment of the Sessions Court, Cuddapah Division in Sessions Case No.176 of 1988.
2. No reasonable ground for condonation of delay has been made out and, therefore, the Special Leave Petition deserves to be rejected on the ground of limitation.
3. For the incident which took place on 6.3.1987 at about 10.30 a.m. wherein Sreenivasulu (deceased) received serious injuries and as a result of which he died on 14.3.1987, Obulesu (A.1) Nagaraju (A.2) and Venkataswamy (A.3) were tried in the Court of Sessions, Cuddapah Division for offences punishable under Section 148 and 302 read with 149 IPC. The case of the prosecution was that the said three accused are members of the All India Student Federation. On the night between 4th and 5th March, 1987 accused No.2 Nagaraju had an altercation with one Masthanaiah (PW.9.) a friend of Nagaraju (PW.8) and therefore, accused No.2 had assaulted Masthanaiah and Nagaraju in Andhra Jyoti Office. By way of retaliation Nagaraju (PW.8) and Masthanaih (PW.9) had beaten accused No.2. In order to take revenge accused No.2 along with accused No.1 to 3 and 15 to 20 other persons went to the house of Nagaraju (PW.8). At that time Nagasubbamma (PW.2) and Yasoda (PW.3) were present. The accused searched the house of PW.8 and as he was not found there they enquired from Nagasubbamma about the whereabouts of Nagaraju and then left after causing some damage in the house. Again at about 7.30 p.m. all of them armed with weapons, went to the house of Nagaraju (PW.8). Nagaraju was not present but his elder brother Sreenivasulsu and Krishna Murthy (PW.1) were present. When the accused enquired about the whereabouts of PW.8. Sreenivasulsu (deceased) protested against the high handed behaviour of the accused. Thereupon, Venkataswamy (A.3) caught Sreenivasulu by his hands and instigated others to beat him. Obulesu (A.1) gave a knife blow to Sreenivasulu. When Sreenivasulu was able to get himself released from the hands of Venkataswamy (A.3) Nagaraju (A.2) gave a sickle blow on the right side abdomen of Sreenivasulu. Venkataswamy (A.3) then took a spear from the hands of another person and gave a forceful blow on the stomach of Sreenivasulu. Injured Sreenivasulu then ran to the house of his relative Ramanamma (PW.12) to save himself. At about 7.45 p.m. Nagaraju (PW.2) and Radhakrishna (PW.4), uncle of Sreenivasulu took injured Sreenivasulu to the hospital. He was examined at about 7.50 p.m. As he had received a serious injury the Doctor sent for the police and a Judicial Magistrate for recording his dying declaration. Ananthasayana Prasad (PW.5) who was the Ist Additional Munsif at Cuddapah went to the hospital at 9.50 p.m. and recorded a dying declaration. Ranga Rao (PW.16) who was then working as Inspector of police received the information at 8.30 p.m. As Sreenivasulu was under medical treatment at that time he recorded the statement of Krishan Murthy (PW.1) and sent it for Registration as FIR. He then carried out further investigation. On the next day he was able to record the statement (EX.P14) of injured Sreenivasulu. It appears that identity of the other accused could not be established and therefore accused Nos.1 to 3 only were put up for trial.
4. The learned Sessions Judge believed evidence of the three eye-witnesses: Krishna Murthy (PW.1). Nagasubbamma (PW.2) and Yasoda (PW.3) and also that of Radhakrishna (PW.4) who had reached the house of PW.8 soon after the incident and was informed about the assault by the accused on Sreenivasulu. The learned Sessions Judge also believed the two dying declaration Exhibit P.l and P.14. He therefore convicted all the three accused for the offence punishable under Section 148 IPC. He convicted accused Nos.1 and 2 for the offence punishable under Section 324 IPC and accused No. 3 under Section 304-I IPC. All the accused were acquitted for the offence punishable under Section 302 read with Section 149. For the offence punishable under Section 148 the learned Sessions Judge sentenced all of them to suffer three years rigorous imprisonment and to pay a fine of Rs.5000/- each. Accused Nos.1 and 2 were sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.10,000/- each for their conviction under Section 324. Accused No.3 was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 15,000/- for his conviction under Section 304-I.
5. Challenging their conviction and sentence accused Nos.1 and 2 filed Criminal Appeal No. 656/89 and accused No.3 filed Criminal appeal No. 655/89. The State did not file any appeal against the acquittal of all the accused under Section 302 read with Section 149 IPC. The High Court did not consider it safe to rely upon the two dying declarations because of party factions and possibility of tutoring. The High Court accepted the evidence of Krishna Murthy (PW.1) to the extent it was corroborated by the First Information Report lodged by him and by the evidence of Nagasubbamma (PW.2), Yasoda (PW.3) and Radhakrishna (PW.4). It therefore, concurred with the finding of the trial court that accused Nos. 1 to 3 along with 15 to 20 of persons had gone to the house of the deceased and PW.8 and that when the deceased chastised them for their behaviour accused No.3 instigated others and thereupon accused No.1 and 2 stabbed the deceased. It maintained the conviction of accused Nos.1 to 3 under section 148 IPC. It also maintained the conviction of accused Nos.1 and 2 under Section 324. It, however, set aside the conviction and sentence of accused No.3 under Section 304 Part-I. For the offence punishable under Section 148 the High Court modified the sentence imposed upon accused Nos.1 and 2 by reducing the imprisonment from three years to two years and the fine from Rs. 5000/- to Rs. 1000/- each. For the conviction of accused Nos.1 and 2 under Section 324 it reduced the sentence from three years rigorous imprisonment to two years rigorous imprisonment and the fine from Rs.10,000/- to Rs.1000/- each. As far as accused No.3 is concerned, for his conviction under Section 148, no order of sentence was passed and he was released on probation under Section 360(i) Cr.P.C.
6. What was contended by the learned counsel appearing on behalf of the appellants was that in the earliest version given by the deceased himself at 9.50 p.m. on 6.3.87, neither any blow was ascribed to Obulesu (A.1) nor his name was mentioned therein and therefore, the High Court committed an error in accepting the evidence of Krishna Murthy (PW.1) and other witnesses for convicting him under Section 324 IPC. We do not find any substance in this contention. From this circumstance we cannot infer that Obulesu (A.1) was not a member of the unlawful assembly which had gone to the house of the deceased and attacked him. In the dying declaration it is mentioned that 15 persons including Nagaraju (A.2) and Venkataswamy (A.3) had come to his house. There is nothing on record to show that the deceased knew at that time accused No.1 by his name. Though the deceased had not referred to any blow having been given by accused No.1 it clearly appears from the medical evidence on record that he had one injury on his person apart from the two injuries stated to have been caused by Nagaraju (A.2) and Venkataswamy (A.3). It is therefore, obvious that either he did not see who had caused the third injury at that time or he had missed to refer to it in his dying declaration. The medical evidence further discloses that Sreenivasulu (deceased) when he was admitted in the hospital was in a shock, that he had received a serious injury and an immediate operation was necessary. It is therefore, quite likely that he missed to refer to the third injury which was a minor one. The incident had happened just in front of the house of the deceased and Krishna Murthy (PW.1), and therefore presence of Krishna Murthy and his mother and sister cannot be doubted. They have categorically referred to the presence of accused No.1. They have also stated that accused No.1 tried to stab Sreenivasulu and as he tried to ward off of the blow he received an injury on his left finger. Within a short time Krishna Murthy (PW.1) had given his complaint and therein also he had clearly stated that Obulesu (A.1) had given a blow with a dagger though he had not given further details that though the blow was aimed at his stomach it had hit his brother on his hand as he had tried to ward it off. Both the courts below have appreciated the evidence relating to the part played by accused No.1 and have thought it fit to rely upon that evidence. We do not find any infirmity either in the evidence or its appreciation by the courts below.
7. It was also contended on behalf of the appellants that appellant No.2 (A.2) has been wrongly convicted under Section 324 as the medical evidence does not support the eye witnesses and the statement contained in the dying declaration that he had given a blow with a sickle on abdomen of Sreenivasulu. The learned counsel drew our attention to the FIR wherein Krishna Murthy (PW.1) has stated that Nagaraju (A.2) had stabbed his brother with a dagger on his abdomen. He then drew our attention to the evidence of Dr. Rao (PW.6) and submitted that no other injury was noticed by him on the stomach and the only injury which was noticed by him on the stomach was caused by a weapon like a spear. We do not think the learned counsel is right in his submission. Dr. Rao has stated that Sreenivasulu had one incised wound on the right mid-axillary line just above the costal margin. Krishna Murthy (PW.1) has also in his evidence clarified that the sickle blow was given on the right side of the abdomen. Thus, the medical evidence does not contradict his evidence that accused No.2 had given a sickle blow to the deceased. Dr. Rao has clearly stated that injury No.2 was possible by a sickle. The High Court was therefore, justified in recording the finding that accused No.2 had caused an incised injury on the person of the deceased. Therefore, conviction of both the appellants under Section 148 and 324 is quite proper and does not call for any interference. The appeal is therefore, dismissed. The Special Leave Petition is also rejected. The appellants who are on bail, shall surrender to their bail bonds to serve out the sentence.
1. The above appeal arises out of the judgment of the Andhra Pradesh High Court in Criminal Appeal No. 656 of 1989. Special Leave Petition No. 3147/1995 is filed by the State of Andhra Pradesh for obtaining leave to appeal against the judgment of that High Court in Criminal Appeal No.655 of 1989. Both these appeals were filed against the judgment of the Sessions Court, Cuddapah Division in Sessions Case No.176 of 1988.
2. No reasonable ground for condonation of delay has been made out and, therefore, the Special Leave Petition deserves to be rejected on the ground of limitation.
3. For the incident which took place on 6.3.1987 at about 10.30 a.m. wherein Sreenivasulu (deceased) received serious injuries and as a result of which he died on 14.3.1987, Obulesu (A.1) Nagaraju (A.2) and Venkataswamy (A.3) were tried in the Court of Sessions, Cuddapah Division for offences punishable under Section 148 and 302 read with 149 IPC. The case of the prosecution was that the said three accused are members of the All India Student Federation. On the night between 4th and 5th March, 1987 accused No.2 Nagaraju had an altercation with one Masthanaiah (PW.9.) a friend of Nagaraju (PW.8) and therefore, accused No.2 had assaulted Masthanaiah and Nagaraju in Andhra Jyoti Office. By way of retaliation Nagaraju (PW.8) and Masthanaih (PW.9) had beaten accused No.2. In order to take revenge accused No.2 along with accused No.1 to 3 and 15 to 20 other persons went to the house of Nagaraju (PW.8). At that time Nagasubbamma (PW.2) and Yasoda (PW.3) were present. The accused searched the house of PW.8 and as he was not found there they enquired from Nagasubbamma about the whereabouts of Nagaraju and then left after causing some damage in the house. Again at about 7.30 p.m. all of them armed with weapons, went to the house of Nagaraju (PW.8). Nagaraju was not present but his elder brother Sreenivasulsu and Krishna Murthy (PW.1) were present. When the accused enquired about the whereabouts of PW.8. Sreenivasulsu (deceased) protested against the high handed behaviour of the accused. Thereupon, Venkataswamy (A.3) caught Sreenivasulu by his hands and instigated others to beat him. Obulesu (A.1) gave a knife blow to Sreenivasulu. When Sreenivasulu was able to get himself released from the hands of Venkataswamy (A.3) Nagaraju (A.2) gave a sickle blow on the right side abdomen of Sreenivasulu. Venkataswamy (A.3) then took a spear from the hands of another person and gave a forceful blow on the stomach of Sreenivasulu. Injured Sreenivasulu then ran to the house of his relative Ramanamma (PW.12) to save himself. At about 7.45 p.m. Nagaraju (PW.2) and Radhakrishna (PW.4), uncle of Sreenivasulu took injured Sreenivasulu to the hospital. He was examined at about 7.50 p.m. As he had received a serious injury the Doctor sent for the police and a Judicial Magistrate for recording his dying declaration. Ananthasayana Prasad (PW.5) who was the Ist Additional Munsif at Cuddapah went to the hospital at 9.50 p.m. and recorded a dying declaration. Ranga Rao (PW.16) who was then working as Inspector of police received the information at 8.30 p.m. As Sreenivasulu was under medical treatment at that time he recorded the statement of Krishan Murthy (PW.1) and sent it for Registration as FIR. He then carried out further investigation. On the next day he was able to record the statement (EX.P14) of injured Sreenivasulu. It appears that identity of the other accused could not be established and therefore accused Nos.1 to 3 only were put up for trial.
4. The learned Sessions Judge believed evidence of the three eye-witnesses: Krishna Murthy (PW.1). Nagasubbamma (PW.2) and Yasoda (PW.3) and also that of Radhakrishna (PW.4) who had reached the house of PW.8 soon after the incident and was informed about the assault by the accused on Sreenivasulu. The learned Sessions Judge also believed the two dying declaration Exhibit P.l and P.14. He therefore convicted all the three accused for the offence punishable under Section 148 IPC. He convicted accused Nos.1 and 2 for the offence punishable under Section 324 IPC and accused No. 3 under Section 304-I IPC. All the accused were acquitted for the offence punishable under Section 302 read with Section 149. For the offence punishable under Section 148 the learned Sessions Judge sentenced all of them to suffer three years rigorous imprisonment and to pay a fine of Rs.5000/- each. Accused Nos.1 and 2 were sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.10,000/- each for their conviction under Section 324. Accused No.3 was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 15,000/- for his conviction under Section 304-I.
5. Challenging their conviction and sentence accused Nos.1 and 2 filed Criminal Appeal No. 656/89 and accused No.3 filed Criminal appeal No. 655/89. The State did not file any appeal against the acquittal of all the accused under Section 302 read with Section 149 IPC. The High Court did not consider it safe to rely upon the two dying declarations because of party factions and possibility of tutoring. The High Court accepted the evidence of Krishna Murthy (PW.1) to the extent it was corroborated by the First Information Report lodged by him and by the evidence of Nagasubbamma (PW.2), Yasoda (PW.3) and Radhakrishna (PW.4). It therefore, concurred with the finding of the trial court that accused Nos. 1 to 3 along with 15 to 20 of persons had gone to the house of the deceased and PW.8 and that when the deceased chastised them for their behaviour accused No.3 instigated others and thereupon accused No.1 and 2 stabbed the deceased. It maintained the conviction of accused Nos.1 to 3 under section 148 IPC. It also maintained the conviction of accused Nos.1 and 2 under Section 324. It, however, set aside the conviction and sentence of accused No.3 under Section 304 Part-I. For the offence punishable under Section 148 the High Court modified the sentence imposed upon accused Nos.1 and 2 by reducing the imprisonment from three years to two years and the fine from Rs. 5000/- to Rs. 1000/- each. For the conviction of accused Nos.1 and 2 under Section 324 it reduced the sentence from three years rigorous imprisonment to two years rigorous imprisonment and the fine from Rs.10,000/- to Rs.1000/- each. As far as accused No.3 is concerned, for his conviction under Section 148, no order of sentence was passed and he was released on probation under Section 360(i) Cr.P.C.
6. What was contended by the learned counsel appearing on behalf of the appellants was that in the earliest version given by the deceased himself at 9.50 p.m. on 6.3.87, neither any blow was ascribed to Obulesu (A.1) nor his name was mentioned therein and therefore, the High Court committed an error in accepting the evidence of Krishna Murthy (PW.1) and other witnesses for convicting him under Section 324 IPC. We do not find any substance in this contention. From this circumstance we cannot infer that Obulesu (A.1) was not a member of the unlawful assembly which had gone to the house of the deceased and attacked him. In the dying declaration it is mentioned that 15 persons including Nagaraju (A.2) and Venkataswamy (A.3) had come to his house. There is nothing on record to show that the deceased knew at that time accused No.1 by his name. Though the deceased had not referred to any blow having been given by accused No.1 it clearly appears from the medical evidence on record that he had one injury on his person apart from the two injuries stated to have been caused by Nagaraju (A.2) and Venkataswamy (A.3). It is therefore, obvious that either he did not see who had caused the third injury at that time or he had missed to refer to it in his dying declaration. The medical evidence further discloses that Sreenivasulu (deceased) when he was admitted in the hospital was in a shock, that he had received a serious injury and an immediate operation was necessary. It is therefore, quite likely that he missed to refer to the third injury which was a minor one. The incident had happened just in front of the house of the deceased and Krishna Murthy (PW.1), and therefore presence of Krishna Murthy and his mother and sister cannot be doubted. They have categorically referred to the presence of accused No.1. They have also stated that accused No.1 tried to stab Sreenivasulu and as he tried to ward off of the blow he received an injury on his left finger. Within a short time Krishna Murthy (PW.1) had given his complaint and therein also he had clearly stated that Obulesu (A.1) had given a blow with a dagger though he had not given further details that though the blow was aimed at his stomach it had hit his brother on his hand as he had tried to ward it off. Both the courts below have appreciated the evidence relating to the part played by accused No.1 and have thought it fit to rely upon that evidence. We do not find any infirmity either in the evidence or its appreciation by the courts below.
7. It was also contended on behalf of the appellants that appellant No.2 (A.2) has been wrongly convicted under Section 324 as the medical evidence does not support the eye witnesses and the statement contained in the dying declaration that he had given a blow with a sickle on abdomen of Sreenivasulu. The learned counsel drew our attention to the FIR wherein Krishna Murthy (PW.1) has stated that Nagaraju (A.2) had stabbed his brother with a dagger on his abdomen. He then drew our attention to the evidence of Dr. Rao (PW.6) and submitted that no other injury was noticed by him on the stomach and the only injury which was noticed by him on the stomach was caused by a weapon like a spear. We do not think the learned counsel is right in his submission. Dr. Rao has stated that Sreenivasulu had one incised wound on the right mid-axillary line just above the costal margin. Krishna Murthy (PW.1) has also in his evidence clarified that the sickle blow was given on the right side of the abdomen. Thus, the medical evidence does not contradict his evidence that accused No.2 had given a sickle blow to the deceased. Dr. Rao has clearly stated that injury No.2 was possible by a sickle. The High Court was therefore, justified in recording the finding that accused No.2 had caused an incised injury on the person of the deceased. Therefore, conviction of both the appellants under Section 148 and 324 is quite proper and does not call for any interference. The appeal is therefore, dismissed. The Special Leave Petition is also rejected. The appellants who are on bail, shall surrender to their bail bonds to serve out the sentence.
