Skip to content


In Re: K. Appalaswamy and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1957CriLJ1227
AppellantIn Re: K. Appalaswamy and ors.
Excerpt:
.....it causes much prejudice to the accused and the accused cannot be said to have had a fair trial and that would vitiate the trial of a case. in my opinion the statements were recorded by the head constable during his investigation on the 10th but they were not made available to the accused for reasons best known to the officer concerned, and i need not speculate upon it..........at about 10 a.m. and handed it over to him. the officer entrusted it in his presence to the head constable for necessary action. the head constable did not start that day and so he remained at kasibugga that day. both of them went to the village the next morning. the head constable seized the paddy crop stacked in the 3rd accused's field, and examined a number of witnesses. on the 16th the sub-inspector came to the village and continued the investigation.3. the eye-witnesses to the occurrence are p. ws. 3 to 7 and 11. they all stated that while accused 1, 2 and 5 to 7 along with some coolies were cutting the crop, accused 3 and 4 were standing on the bond and encouraging them to do it. p.ws 3, 4 and 11 are brothers, p. ws. 3 and 4 being the tenants. p. ws. 5, 6 and 7 are owners of.....
Judgment:

Chandra Reddy, J.

1. These appeals are filed by accused 1 to 3 separately. They have been convicted by the Sessions Judge of Visakhapatnam under Section 395, Indian Penal Code and sentenced to two years' rigorous imprisonment and a fine of Rs. 100 each. Accused 1, i. e., the appellant In Criminal Appeal No. 97 of 1955, has also been convicted under Section 323, Indian Penal Code and directed to suffer rigorous imprisonment for four months. Seven persons were tried by the Sessions Judge on these two counts but the Sessions Judge thought that no case was made out against accused 4 to 7 and acquitted them.

2. The short facts of the prosecution case are these; P. W. 1, belonging to Eantwvada of Tekkali taluk, Visakhapatnam, District purchased six acres of land in another village Bantukothuru from one Karimi Kurmayyaswami in 1951, After cultivating it for two years, he leased it out to 1953 to P. Ws. 3 and 4 under Exhibit P-10, the terms of which are not quite pertinent here. The tenants raised paddy crop on the land. While the crop wag ready for harvesting, accused 1 to 7 trespassed upon the land, cut the crop and stacked it in the field of accused 3, the village munsif of the place.

They also caused injuries to P. W. 3 who tried to prevent them from removing the crop. P. W. 11, a brother of P. Ws. 3 and 4, was deputed to carry this information to P. W. 1, the lessor, whose village was 16 miles away from the scene of occurrence. On the way P. W. 11 found P. W. 1 near a coffee hotel between 4 and 5 P. M. and communicated to him the happenings of the day. Thereupon they both came to Bantukothuru, After enquiring P. Ws. 3 and 4 these two Persons went to the police station at Kasibugga within whose limits Bantukothuru lay, by midnight P. W. 1, wrote a report, Exhibit P-12 and took it early morning to the Sub-Inspector's house but he refused to receive it there.

So he went to the police station at about 10 A.M. and handed it over to him. The officer entrusted it in his presence to the Head Constable for necessary action. The Head Constable did not start that day and so he remained at Kasibugga that day. Both of them went to the village the next morning. The Head Constable seized the paddy crop stacked in the 3rd accused's field, and examined a number of witnesses. On the 16th the Sub-Inspector came to the village and continued the investigation.

3. The eye-witnesses to the occurrence are P. Ws. 3 to 7 and 11. They all stated that while accused 1, 2 and 5 to 7 along with some coolies were cutting the crop, accused 3 and 4 were standing on the bond and encouraging them to do it. P.Ws 3, 4 and 11 are brothers, P. Ws. 3 and 4 being the tenants. P. Ws. 5, 6 and 7 are owners of lands in the neighbourhood. They were all agreed that accused 1, 2 and 5 to 7 took active part in the commission of the offence of dacoity. It is not necessary to refer to their evidence in any detail in the view I take of the irregularities in the case.

4. The plea of all the accused was one of denial.

5. The Sessions Judge found only the three appellants guilty of the offence with which they were charged.

6. Mr. Venkatesam canvassed the correctness of the conviction on various grounds. It was argued by him that the Sessions Judge should have rejected the whole prosecution case having regard to the fact that there was inordinate delay in giving the complaint; and that though P. W. 1 is alleged to have gone to Kasibugga by about 11 or 12 in the night, the complaint was given only at about 2 P. m and the interval must have been made use of by P. W. 1 to implicate all his enemies, especially the 3rd accused, between whom and P. W. 1 there was litigation, criminal and civil. There is considerable force in this contention.

7. Another point urged by Mr. Venkatesam is that having acquitted accused 4 to 7 the Sessions Judge ought not to have found accused 1 to 3 guilty of the offence under Section 395, Indian Penal Code, as the essence of that offence is the presence of five or more persons. It is argued by the learned Counsel that in the complaint, Exhibit P-12. it was only stated that accused 1 to 7 cut and carried away the crops. The charge-sheet also recites that the seven persons mentioned therein committed the offence ascribed to them. Even in the charge it is not stated that seven accused and some other persons took part in the crime. If the Sessions Judge did not accept the prosecution case that accused 4 to 7 also took part in the offence, the only course open to him was to have acquitted the appellants also of the offence under Section 395, Indian Penal Code, continued the learned Counsel.

I am impressed with this argument. It is true that in the Sessions Court the prosecution witnesses stated, that apart from these accused there were a number of persons cutting the crops but this is belied by Exhibit P-12 the charge-sheet, and even the charge and by the admission made by the investigating officer. Nor does the Sessions Judge say that there were seven people who were engaged in removing the crop but the identity of persons other than the appellant has not been satisfactorily established. The learned Judge proceeded on the assumption that accused 1 and 2 along with coolies jointly acted and had the crop cut and removed it dishonestly, and while doing so, they caused hurt to P. W. 3. He over-looked that the story that there were persons other than accused 1 to 7 in the field was introduced for the first time in the Sessions Court. So the conviction under Section 395, Indian Penal Code, has to be quashed,

8. But I need not consider what offence the accused would be guilty of in view of the fact that the non-compliance with the provisions of Section 162 has caused serious prejudice to the accused in the defence of their case and has entitled them to an acquittal. The circumstances giving rise to this are these : P. W. 14 had on his own showing first made rough notes of the statements made by the witnesses whom he examined, and fair-copied them. In this respect he is corroborated by P. W. 1, P. W. 5 and P. W 15. Yet copies of them were not made available to the accused. When asked for them, the accused were told that both the notes as well as the fair statement recorded by the Head Constable were not available as they were torn by him.

Thus the accused were denied the opportunity of testing the truth or otherwise of the statements of the witnesses with reference to their earlier statement. It is now well established that the right which the accused has to obtain copies of the statements recorded by the police officers during the investigation of an offence is a very valuable right and if the copies thereof are not made available to the accused, it causes much prejudice to the accused and the accused cannot be said to have had a fair trial and that would vitiate the trial of a case. See Purushottsm v. State of Kutch : AIR1954SC700 (A), following the decision in Kotayya v. King Emperor ILR 1948 Mad 1 : AIR 1947 PC 67 (B). Curiously enough the learned Sessions Judge concluded that the Head Constable did not investigate or record any statement, under Section 162, Criminal Procedure Code, and therefore, there was no question of the accused, getting copies of the statements and their being prejudiced by not granting them. This conclusion of the learned Judge is opposed to the evidence on record.

On the prosecution evidence there could be no denying the fact that the Head Constable did go to the village, did seize the stacks of paddy and in fact, put accused 4 in possession of the heap, gave him a receipt and examined a number of witnesses on the 10th. It follows the Sessions Judge was in error in thinking that there were no statements under Section 162 recorded by the Head Constable. He remarked that if there were such statements and they were not made available to the accused, it would vitiate the trial. In my opinion the statements were recorded by the Head Constable during his investigation on the 10th but they were not made available to the accused for reasons best known to the officer concerned, and I need not speculate upon it now. Suffice it to say that an irresistible inference of prejudice to the accused arises in this case and this has entitled them to an acquittal as no useful purpose will be served by remanding it.

9. In the circumstances, the appeals are allowed and the convictions and sentences are set aside. Their bail bonds will be cancelled.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //