Thatichettu Lingam vs State of A.P.

L. Narasimha Reddy, J.—A-1 to A-6 were tried by the Court of the VI Additional District & Sessions Judge, Medak at Siddipet in S.C. No. 297 of 2008 for the offence of committing the murder of Tatichettu Ramulu (D1) and Tatichettu Beeraiah (D2), apart from attempting to murder Tatichettu Narsimhlu (PW-2).

D1, D2 and PW-2 are the sons of PW-1 - Tatichettu Kondaiah of Mirdoddi Village. They are all shepherds. Apart from agriculture, the family was rearing sheep also. On the intervening night of 27th/28th February, 2005 while PW-2 stayed in the fields to guard the sheep, D1 and D2 joined him together with the dinner for him. All the three are said to have slept at about 9.30 p.m. Thereafter, A1 to A-6 are said to have come to the fields and first attacked PW-2, and on being enquired by him, the accused are said to have stated that they did not come for committing theft of sheep, but to kill all the three. The attack is said to have continued and while PW-2 fell down, pretending as though he dead, the assailants attacked D1 and D2 and killed them.

The death of D1 and D2 and injuries to PW-2 are said to have been noticed by PW-5, and that he informed the same, to PW-1 in the morning. On receiving information, PW-1 and others went to the field and by that time, the police reached that place. PW-1 is said to have submitted a complaint Ex.P-1 at about 8.00 a.m. on 28.02.2005 to P.S., Mirdoddi. The Inspector of Police of the concerned police station took up the investigation and completed various steps that are required under law, such as, preparation of scene of offence panchanama, conducting inquest over the dead body and causing post mortem, were done. PW-2 was sent to Hyderabad for treatment and taking his condition to be precarious, intimation was given to the jurisdictional Magistrate, who in turn, recorded a declaration, being Ex.P-31. After completion of the investigation, PW-23, Investigating Officer, filed charge sheet alleging the offences punishable under Sections 148, 307 and 302 read with 149 IPC, against the accused 1 to 5. Offences punishable under Sections 302 and 307 read with 149 IPC was alleged against A6. All the accused pleaded not guilty.

The trial was conducted wherein PWs.1 to 23 were examined and Exs.P-1 to Ex.P-44 were filed. MOs.1 to 26 were taken on record. On behalf of the defence, the statements recorded u/s 161 Cr.P.C., from the respective witnesses were marked as Exs.D-1 to D-7.

Through its judgment, dated 12.06.2009, the trial Court acquitted A1, A2, A4, A5 and A6 of all the offences alleged against them. However, it convicted A3, of committing offences punishable under Sections 302, 307 and 148 IPC. Sentence of imprisonment of life and fine of Rs. 3,000/-, in default to undergo simple imprisonment for four (4) months was imposed for the offence punishable u/s 302 IPC, sentence of imprisonment for ten (10) years and fine of Rs. 2,000/-, in default to undergo simple imprisonment for three months was imposed for the offence punishable u/s 307 IPC. Lastly, sentence of rigorous imprisonment for three (3) years was imposed for the offence punishable u/s 148 IPC. Hence, this appeal by A3.

Smt. C. Vasundhara Reddy, learned counsel for the appellant - A3 submits that though the prosecution made an effort to present PW-2 as an injured eye witness, the trial Court itself disbelieved the evidence of that witness and acquitted all the accused, except A3 and there was no basis at all for treating the evidence of that very witness as holding good, to convict A3. She contends that there is a clear contradiction between the version presented by PW-2 in the statement recorded from him by the Magistrate on the one hand, and his deposition in the Court on the other. According to the learned counsel, PW-2 named A3 only to the extent of attacking him and pleaded ignorance as regards the identity of other accused or the attack on his brothers D1 and D2, and still the trial Court held A3 guilty of committing murder of D1 and D2. She further submits that the manner in which the proceedings were initiated is very shaky and the submission of Ex.P-1 was only a stage-managed show, by the police.

Learned Additional Public Prosecutor, on the other hand, submits that the evidence of an injured witness is of utmost importance in a criminal trial, and none of the accused have doubted the presence of PW-2 at the scene of offence. She submits that the trial Court gave benefit of doubt to A1, A2, A4, A5 and A6, obviously because their names were not mentioned by PW-2 in Ex.P-31, and A3 was convicted, since his name was mentioned in it.

It is rather unfortunate that two sons of PW-1 were murdered and the third son was seriously injured, when all the three were in the fields, for protecting the sheep. There is some uncertainty as to how the information about the gruesome incident reached PW-1 or as to how the matter was reported to the police. The complaint in relation to the incident is said to have been submitted by PW-1 at 8.00 a.m. in the police station. However, in the cross examination, he admitted that on receiving information from PW-5, about the incident, himself and other villagers proceeded to the spot and by that time, the Sub-Inspector of Police and constables were very much present there. It was also elicited from him in the cross examination that the compliant was scribed by one Gangadhar (PW-10) and the contents thereof, were not read over to him. While PW-10 stated that PW-1 approached him with the request to draft the complaint, PW-1 has a different version. According to him, when he went to the police station, PW-19, the Station House Officer, sent for PW-10 and the latter drafted the complaint.

The discrepancy pointed out above is, no doubt, serious. However, it does not have the effect of vitiating the trial, once the occurrence of the incident is not disputed and the information has been received by the police. The whole controversy was as to who caused the murder of D1 and D2 and serious injuries to PW-2.

From a perusal of the contents of Ex.P-1 and the deposition of PW-1, it is evident that there were longstanding disputes in between the family of PW-1 and that of A-3. It was in the context of adoption of the son of PW-1''s wife''s elder sister, by the uncle of A1 and A3, and the alleged suicide committed by the wife of that adopted person, A1 and A3 are said to have been outcast by their community and thereby both of them had a serious grudge against the family of PW-1.

The incident occurred in the fields, late in the night. All the three brothers i.e. D1, D2 and PW-2 slept at one place. Since PW-2 survived the attack, his evidence assumes much importance. Apprehending that he may succumb to injuries, the prosecution arranged for recording of his declaration through the jurisdictional Magistrate. Fortunately, for him, PW-2 survived and the declaration recorded from him, got itself transferred into a statement recorded u/s 164 Cr.P.C., from a probable dying declaration. The gist of Ex.P-31 is that A3 came and asked for one sheep and thereupon, PW-2 replied that he would give the sheep, but A3 should not cause harm to him. A3 is said to have replied that he came to kill him and hit PW-2 with some object. Immediately, PW-2 is said to have become unconscious and before that he has seen a big knife in the hands of A3. It was also stated that A3 and others came on three motorcycles and that he does not know the number of the accused. However, he was sure that A3 attacked him. Lastly he stated that the persons, who came along with A3 killed his brothers D1 and D2.

In his evidence in the Court, PW-2 has completely deviated from the Ex.P-31. He proceeded as though he identified A1 to A6 at the scene of occurrence and he witnessed the accused killing his brothers. This deviation would certainly water down the credibility of the evidence of PW-2, notwithstanding the fact that he is an injured eye witness. The evidence, which otherwise commands outright acceptability, assumed the character of, unreliability.

The trial Court found that the evidence of PW-2 is not sufficient to hold A1, A2, A4, A5 and A6 as guilty of offences alleged against them. The only basis on which it proceeded to hold A3 guilty of those offences is that his name was mentioned in Ex.P-31.

Normally, once the evidence of a witness is found to be contradictory when compared to the statement, recorded from him u/s 161 or 164 Cr.P.C., the Court tends to discard it altogether. However, there may be circumstances where the contradictory or objectionable part of the evidence of a witness can be discarded, and the one, which is otherwise consistent, can be accepted. This, however, is by no means a simple task. Several precautions are required to be taken in this behalf. Even if the evidence of PW-2, to the extent it accords with Ex.P-31 is to be taken as true and reliable, what emerges is that there would be an allegation of attempt to murder on PW-2, and nothing more. The reason is that in Ex.P-31 itself, PW-2 did not allege that A3 caused the murder of D1 and D2. On the other hand, he mentioned that the persons, who accompanied A3 may have caused the death of D1 and D2.

We, therefore, feel it appropriate to set aside the conviction of A3 under Sections 302 and 148 IPC; but to uphold the conviction of that person, for the offence punishable u/s 307 IPC. However, we reduce the sentence to be the one of rigorous imprisonment for five years and retain the fine imposed by the trial Court.

In the result, the Criminal Appeal is allowed in part. The conviction and sentence ordered in S.C. No. 297 of 2008 on the file of the VI Additional District & Sessions Judge, Medak at Siddipet, dated 12.06.2009, against the appellant-accused No. 3 for the offences punishable under Sections 302 and 148 IPC, are set aside and the conviction recorded against the appellant - accused No. 3 for the offence punishable u/s 307 IPC is upheld. However, the sentence imposed against the appellant-accused No. 3 for the offence punishable u/s 307 IPC is reduced to rigorous imprisonment for five (5) years and the fine imposed by the trial Court is sustained.