1. The appeal and the two revisions periam to tha judgment o the Additional Sessions Judge, Visakhapatnam, in Sessions Ca3e No. 17 of 1966, by which he convicted A 1 under Section 304, Part II, Penal Code for causing the death of the Pallela Satyanarayana of Kunchangi on 16-2.1966 and A-2 and A3 under Section 20, Penal Code foe causing hurt to the said Pallela Satyasarayana in the course of tha same transition. A.2 and A-3 are farther convicted under Section 328, Penal Code for voluntarily causing hurt to the deceased's brother, Pallela Ammannadora by hitting him with sticks in the course of the same transaction. A 1 was sentenced to rigorous imprisonment for 5 years and A-2 and A-3 were sentenced to rigorous imprisonment for six months on each of the counts, the sentences to run concurrently.
2. The occurrence took place at about 7.30 P. M. on 16-2-1963 near the 'Kammara Sala' (the village smith) in Kunchangi village. The deceased and the injured were brothers and residents of the village. The three accused are brothers belonging to the same village. They belong to the same community. Bat it is the prosecution case that there was ill-will between the families of the accused and the deceased. The deceased was the Director of the Co-operative Bank for 5 years and was a respectable member of the village. A-l was trying to de-feat the deceased and get elected as the Director of the Bank. That caused friction. It is paid that every Saturday there was a Bhajan in Rama Kovila, and that at the end of the Bhajan, the deceased and his brother used to distribute 'Prastdam' amongst the persons who attended. The accused festival the deceased and his brother getting popular in the community that way. On one occasion when the deceased was making an appeal for contributions for performing the festival of Vighnswara in the village, the accused insulted him and prevented him from addressing the people. Some time later, A-l and A-2 picked up a quarrel with P. W. 2, the deceased's brother, who rebuked him for driving a bullock-tact very fast at a place where children were playing, off and on there were such bickerings.
3. On 16-2-1966 at about 7-80 P.M. the deceased, and the three accused and P. W. 5 were Bitting Dear the 'Kammara Sala' the village smith. There were some big stones in front of 'Kammara Sala' and these persons were seated on those stones. From the rough sketch, Ex. P. 14, it is seen that the 'Kammara Sala is in the main street which runs from east to west and the stones are indicated close to the 'Kammara Sala.' At that time P. W. 2, the deceased's brother, went there to enquire whether he could get some coolies for cutting and delivering sugarcane at the Thummapala Sugar Factory. The deceased also enquired P. W. 5 if coolies were available. Accused 2 interfered which P. W. 2 resented. Then A-2 and A-3 got up suddenly and pushed P. W. 2 whereupon the deceased intervened. At that stage, A-L caught the deceased and pushed him-Sand immediately thereafter up-rooted casurina sticks from the fencing nearby and attacked the deceased. A-l hit on his head felling him down. A-l hit the fallen man again on his side. A.2 and A-3 also hit him, and P. W. 2 rushed towards the deceased. A 2 and A 3 hit him with sticks. At that stage, Kanni Babu (P. W. 3) rebuked the accused and they left the place. The occurrence was witnessed by p. Ws. 2, 3, 4, 5 and 6. The deceased died on the spot P. W. 2 recovered and went home and informed his mother (P. W. 8) and his paternal uncle (P. W. 1). P. W. 1 came to the scene of occurrence and fetched the Village Munsif at Ronganivaripalem (P. W. 10) about two miles from Kunchangi.
4. P. W. 10 obtained a report of the occurrence from P. W. 1 (Ex. P.1) and sent the report with his crime reports at 11 P. M. that night to the Police Station at Kasimkota and the Magistrate at Anakapally. The crime reports were received at the Police Station at 4-10 A.M. on 17-2-1966 by the Sub Inspector of Police, Kasimkota P. W. 13). He registered a crime for an offence of murder and proceed, ed for investigation, reaching the scene of occurrence at 7-30 A. M. The Inspector of Police Anakapally (P. W. 14) took up investigation. He held an inquest from 8 A.M. to 11 A.M. and examined witnesses, P. Ws. 1 to 6 and others. Ex. P.7 is the inquest report. He seized the blood stained earth from the scene of occurrence. He then despatched the body for post-mortem. He made enquiries of the accused who were not available in the village. He also sent P. W. 2 for examination of his injuries.
5. The post-mortem was conducted by P. W. 7, the Assistant Surgeon of Anakapilli Government Hospital commencing at 3 P. M. on 17-2.1966. He has spoken to the following external injuries on the body:
(1) A lacerated wound 7 x 2 cms. over the right side of the frontal region, 9 cms. above the right eye brow. Bone was exposed.
(2) An abrasion 8 cms. x 2 cms., 3 cms. above the left eye brow.
(3) A contusion 7 cms. x 5 cms. just in front of the left ear.
(4) A contusion 8 cms. x 5 cms. over the right side of the chest in the mix-auxiliary line. 10 cms. to the right of the right nipple.
All the injuries were ante-mortem. The internal injuries were: There were fractures of the right 4th, 5th and 6th ribs in the midaxillary line. The fractured outer end of the right 6th rib punctured the lower lobs of the right lung anteriorly and it was measuring 3 1/2 cms. x 1 cm. The depth of the wound was 2 1/2 cms. There waa 8 ozs. blood in the right pleural cavity. There was haemofoma over the right side chest, under external injury No. 4. There was extravasation of blood over the right side of the frontal bone measuring 8 cms. x 4 cms, under external injury No. 1. There was extravasation of blood over' the left side of the frontal bone measuring 4 cms. x 2 cms. under external injury No. 2. There was a linear fracture on the right side of the frontal bone 4 cms. long corresponding to external injury No. 1. The internal organs were pale on account of haemorrhage. The deceased must have died of shock and haemorrhage due to multiple injuries. The fatal injuries were the lung injury and the fracture of the skull. The external injuries could have been caused by a blunt object like a stick. Death must have occurred about 18 hours before the commencement of the post-mortem examination The deceased could ha e lived not more than: 15 minutes after the internal lung injury Ex. P. 2 is the postmortem certificate that he issued.
6. P. W. 7 has also spoken to the injuries on P. W. 2.
(1) A lacerated wound over the mid frontal region.
(2) A lacerated wound above the left eyebrow.
(3) An abrasion below the left eye.
(4) A contusion on the right arm middle 1. 1/3 posteriorly 6 cms, x 2 cms.
(5) An abrasion over the dorsum of the right band.
(6) A reddish contusion 8 cms below the angle of the left scapula.
(7) A reddish contusion 2 cms. x 1/2 cm. over the right scapula.
All the above injuries could have been caused with a blunt object like a stick. They must have been caused 18 hours prior to his examination which commenced at 1-20 p.m. on 17.2.1966. The injuries were simple. Ex. P.3 is the wound certificate that he issued.
7. The accused were arrested by the Investigating officer at their cattle shed in their sugarcane field near the village at about 12 noon on 18.2.1966. The Investigating Officer did not find any scratches or marks of violence or injuries on the person of any of the accused.
8. The earth seized from the place of occurrence was found to be stained with human blood.
9. After the close of the investigation, a charge sheet was laid against the accused on 4-3-1966.
10. The accused were tried for offences under Section 302 read with Section 34, I.P.C. Separate harges were framed against A-2 and A-3 for an offence under Section 324, I.P.C. for causing hurt to P. W. 2.
11. At the trial, the prosecution examined the eye-witnesses, P. Ws. 2 to 6, P, W. 1 who gave the occurrence report, the Village Munsif P. W. 10, the Medical Officer P. W. 7, the mother of the deceased and the injured P. W. 8, the Investigating officer P. W. 14 and others.
12. The accused denied that they had beaten the deceased and P. W. 2 as stated by the prosecution witnesses and pleaded that the case was foisted. A-l stated that the deceased and P. W 2 used to wander in the streets drunk and attack people and that as he was saying that it was wrong, they foisted the case on him He denied the incidents of ill. will of which evidence was given by the prosecution. They examined defence witnesses. D. W. 1 (A-2) gave a version thus:
On Wednesday, i.e., the day when the deceased died, after the lamp lighting time. I went into the street. Darmisetty Kanni Babu was selling arrack in his house. I went to his house lying in the said street. Pallela Lakshmi Narayana, P. W. 2, Pallela Ponayya were drinking ariack. P. W. 5 was supplying the arrack to them. Darmisetty Kanni Babu was collecting money. I gave one rupee note to the said D. Kanni Babu after drinking 2 glass tumblers of arrack. I asked him to return the balance of 10 annas. He said that he would return after some time as there was no change. I went to Gaviramma tank to answer calls of nature saying that I would come again to receive the balance. I returned and demanded him to pay 10 annas. He questioned as to whom I gave the money and how he can get any balance. He also took oath with the lamp that money was not given to him. P. W. 2 who was there said that I gave one rupee to D. Kanni Babu. Then the deceased come there. Seeing the verbal altercation between us, the deceased went away. P. W. 2 advised me to take away the pot of arrack. There were 5 or 6 persons besides up, who had come for drinking. I left the place taking the pot of arrack, to my cattla hed near the tank. I do not know what had happened afterwards.' He denied that they had insulted the deceased at the Granapathi Utsavam when he was making an appeal. About the cart incident', he said that P. W. 2 stopped his cart in a dranken state. He denied having beaten the deceased and P. W. 2 with casuarinas sticks.
13. D. W. 2 said that the deceased and P. W. 2 did not distribute 'Praaadam' and that the accused never raised any objection. D. Ws. 5, 4 and 5 said that the deceased and P. W. 2 were drunkards and that they used to move about in the streets abusing and creating scenes.
14. The Sessions Judge accepted the prosecution case, rejected the defence case and convicted and sentenced the accused as stated above.
15. At first I will consider the evidence relating to the first charge under Section 302 read with Section 34, I.P.C.; it is established beyond doubt that Pallela Satyanarayana succumbed to the injuries which were caused to him with sticks. The eye witnesses to the occurrences are the deceased's brother. P. W. 2 who was himself beaten and P. Ws. 3, 4, 5 end 6. The report of the occurrence (Ex. p-1) was given on that night itself by P. W. 1 on the information given by an eye-witness, P. W. 6. The Investigating Officer was on the scene the next morning and he examined all the eye-witnesses and others. The discrepancies noted do not affect the facts of the occurrence as stated by those witnesses The witnesses' evidence of the injuries caused to the deceased is corroborated by the injuries themselves which were spoken to by the Medical Officer.
16. The learned Counsel has criticised the prosecution testimony of the occurrence as artificial because it was a dark night. Even so, the witnesses have known the accused and had seen them from close quarters hitting the deceased and his brother, P. W. 2 and they rebuked them also as to why they were beating people who were already dead. This was not a hit and run affair. The eye-witnesses were present on the scene for same time. It cannot be said that there was any mistake as to the identity of the accused or that the witnesses could not have seen them beating the deceased and P. W. 2.
17. The learned Counsel also commented that the prosecution bad given evidence of some petty incidents which could at best reflect only a flimsy motive. He would therefore contend that the occurrence could not be a sequel to such petty incidents.
18. There were definitely some incidents which reflected ill will. It is said also that A-I was trying to become a Director of the Bank, which place the deceased had occupied. This cannot be discarded as merely trivial. There might have been more substantial reasons. However, it would not discredit the credible and acceptable evidence of the attack on the deceased and P. W. 2.
19. It was also commented that the other residents of the locality excepting P. W. 3 had not witnessed the occurrence. The evidence of the Investigating Officer, P. W. 14, is that he had examined those who resided in the locality and that excepting P. W. 8 no other person, among those residents of 20 houses examined by him, gave information. In the said circumstances, it is not possible to draw and adverse inference that others who had seen, were withheld by the prosecution.
20 The learned Counsel has next commented that P. Ws. 8 to 6 are all related and their testimony cannot be considered independent. It is seen that; nothing has been elicited against these witnesses that they were either hostile to the accused or were actuated by any private grudges. It has been observed by the Supreme Court in Dalip Singh v. State of Punjab AIR 1953 SC 864 thus.
A witness is normally to be considered independent unless he springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to which to implicate him falsely. Ordinarily a close relation would be the last to screen a real culprit and falsely implicate an innocent person.
21. P. W. 2 is the injured brother of the deceased whose presence cannot be doubted. The other witnesses have convincingly explained their presence. P.W. 5 was there from the very beginning. P. Ws. 3 and 4 proceeded there on hearing the disturbance, P. W. 6, a resident of Kunohangi, happened to be proceeding that way. The testimony of these witneses is not subject to any infirmities and so could be safely relied on.
22. As against this version, it was suggested to the witnesses, which they denied, that 20 or 30 drunkards gathered which resulted in some sort of skirmish and in that the deceased might have received injuries. The evidence of the 2nd accused as D. W. 1 gives no positive case as to how the deceased was beaten to death and how P.W. 2 received injuries.
23. The other evidence of the defence is about the general behaviour of the deceased and P. W. 2 which furnishes no positive counter version to the occurrence.
24. Thus, the comments addressed to me about the prosecution version have no substance. On a careful appraisal of the accused's version and the defence evidence, I find that no counter version has 'been presented, but that a mere possibility was suggested that the deceased and P. W. 2 might have been injured in a drunken brawl, which suggestion was denied by the witnesses. I agree with the learned Sessions Judge that the evidence of the eye-witnesses P. Ws. 2 to 6, could be accepted as true.
25. The next question is as to the offence made out on the facts proved. The learned Sessions Judge ruled out a common intention to cause the death of the deceased. The Additional Public Prosecutor is said to have conceded that the circumstances did not warrant attribution of such an intention to the accused. The Sessions Judge therefore held the three accused liable for their individual acts. In so doing, the Sessions Judge found A-l guilty under Section 304' second part, I.P.C. and A-2 and A-3 under Section 323 I.P.C.
26. The said finding of the learned Sessions Judge is impugned by the learned Counsel for the accused, as also by the learned Counsel for the complainant who has filed Criminal R.C. 594 of 1966.
27. The learned Counsel Sri Rama Rao argued that A-l could be guilty of no more than causing grievous hurt, whereas it is contendel in Cr. R, C. 594 of 1966 that the acquittal of A-l of an offence under Section 302 1. P.C. is unsound in law.
28. The facts established beyond doubt are that A-l inflicted two fatal injuries with a casurina stick. But, there is no evidence of the size of (he stick wielded by A-l. Nor for that matter is there evidence of the sizes of the sticks wielded by A-2 and A-3. The fatal injuries were the fracture of the skill and the lung injury.
29. Considering that the external injuries were on vital parts and that they resulted in fatal injuries, I am not impressed by the argument of the learned Counsel that no more than grievous hurt was intended. The Sessions Judge inferred from the facts and circumstances that A-l could have known only that he was likely by his act to cause death.
30. Sri P.C. Reddy for the petitioner i. e, the brother of the deceased, P. W. 2, urged that this is a case which could attract the third clause of Section 300,1. P.C. i.e., the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. He argued that although the Medical Officer, P. W. 7, has not stated in his evidence that the injuries inflicted referring to the fatal injuries were sufficient in the ordinary course of nature to cause death, it was open to the Court to look to the injuries themselves and come to that conclusion. For the proposition that the Court could come to that conclusion on an appraisal of the nature of the injuries and the circumstances, he relied on Brij Bhukhan v. State of Uttar Pradesh : 1957CriLJ591 , 477.
31. Beyond question, the Court can scrutinise the evidence and infer an intention or knowledge requisite for a particular offence. But it is equally well settled that the Courts acting in revision under Section 439, cr. P.C. are also curtailed in the exercise of their powers. The Courts revisional powers are limited and that limitation is made clear in two decisions of the Supreme Court: Chinnaswamy Reddy v. State of Andhra Pradesh : 3SCR412 and Fakir Chand v. Komal Prasad (1964) 2 Cri LJ 74 (SC), The latter decision discountenanced the High Court re-appreciating the evidence.
32. Having regard to these pronouncements, the High Court cannot possibly re-appreciate the evidence to see if A-l can be attributed an intention or knowledge requisite for the graver offence.
33. Sri P.C. Raddy invited my attention to a judgment of this Court in Cr. R.C. 246 of 1958 dated 4-2-1959 (A P) which was affirmed by the Supreme Court in Cri. A. No. 251 of I960, the judgment in which was delivered on 20-11-1961(SC). The judgment of the Supreme Court upheld the order of this High Court in setting aside an acquittal in revision on grounds which were set out in the judgment thus-
The High Court held that (1) in the judgment of the learned Sessions Judge there were certain mis-statements of facts; (2) that inadmissible evidence had been used and unwarranted assumptions had been made;(3) that the right of private defence was neither pleaded nor was it sustainable on the evidence in the case; (4) that in considering the evidence of the witnesses the learned Judge had merely set out what he thought were discrepancies but gave no finding in regard to the evidence of the witnesses or the effect of the discrepancies on the reliability of their evidence and the learned Sessions Judge had not clearly stated whether he accepted the testimony of the witnesses who had been injured or not; (5) that the learned Sessions Judge relied upon the statements made in the First Information Report and at the inquest without those statements being put to the witnesses and (6) that the discussion of the evidence of the witnesses was highly artificial.
34. The grounds themselves were such as would warrant an interference with an order of acquittal in revision. I do not think that such matters exist in the present case. I do not therefore consider that this is a fit case for interference in revision setting aside an acquittal under Section 302, I.P.C. and ordering a retrial.
35. It is also established by the evidence of the eye-witnesses who have spoken to the attack on the deceased that A-2 and A.3 had caused him simple injuries.
36. The same eye-witnesses (P. Ws. 3, 4, 5 and 6) have spoken to the attack on P. W. 2, further to the evidence given by P. W. 2 himself.
37. Crl. R.C. 595 of 1966 is preferred for enhancement of the sentences. The question of enhancement of the sentences has been discussed by the Supreme Court in Bed Raj v. State of Uttar Pradesh AIR 1955 SC 778. The observations of the Supreme Court pertinent in this context are these:
There should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate.
An offence under Section 304, Second part, I.P.C. is punishable with imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. The trial Court hag imposed a sentence of 5 years which cannot be viewed as manifestly inadequate.
38. The conviction of A-l and the sentence passed on him are therefore affirmed. The convictions of A-2 and A-3 and the sentences passed on them are also affirmed.
39. In the result, the appeal fails and is dismissed. The two revisions also fail and are dismissed.