1. The six appellants were tried by the Sessions Judge of Kurnool on three charges:
(1) for an offence under Section 148, I. P. C. against all the appellants;
(2) for an offence under Section 302, I. P. C. against the first accused only, for having caused the death of one Pedda Venkatanna;
(3) for an offence under Section 302 read with Section 149, I. P. C., against accused 2 to 6.
2. All of them have been found guilty under Section 148, I. P. C. for which they were sentenced to two years rigorous imprisonment each. The first accused was found guilty under Section 302, I. P. C. and sentenced to transportation for life. The other accused were acquitted of the offence under Section 302 read with Section 149. I. P. C. but convicted under Section 324 read with Section 149, I. P. C. and they were each sentenced to two years' rigorous imprisonment. The sentences were made to run concurrently.
3. This occurrence is said to have taken place on 16-6-1950, sometime between 5 and 6 p.m. On that day there was a panchayat in the village to settle a dispute between one Rosi- gadu of Yadaralla and his wife who belonged to the village of Allugundu, where the occurrence took place. The panchayat consisted of P W. 1, P. W. 2, the Six appellants and three other persons from the neighbouring hamlet of Mallepalle. After the panchayat was over, they were sitting in the pial when P. W. 3, the father of the deceased, returned from the fields taking the cattle to the shed. It appears one of the bulls trod on Ellammal, the wife of the fourth accused in the case and so she abuses P. W. 3. P. W. 3 retorted. The fourth accused who was sitting on the pial took up the cause of his wife and it js said that he kicked P, W 3 and P. W. 3 fell down. Then P. W. 1 who was there went to his rescue and thereupon the other accused who were there took the cart poles and started beating the prosecution party. It may be mentioned here that the first accused has married a sister of the fourth accused; accused 1 to 3 are brothers; the fifth accused is the paternal aunt's son of accused 1 to 3; and the sixth accused is said to be a friend of accused 1 to 5.
According to the evidence now given in court, the fifth accused is said to have beaten P. W. 1 on his neck with a cart pole. The first accused raised the cart pole to beat him on his head but when he put forth his hands the blow fell on the hands. Accused 2 and 3 are said to have beaten him on his back with cart poles and the fourth accused beat him on the head with a cart pole. The first accused is said to have further beaten P. W. 3 also on his hand. When P. W. 2, the younger brother of P. W. 1 came to lift P. W. 3 the eldest brother. the sixth accused is said to have beaten him with a cart pole. While this beating was in progress the deceased who is the Son of P. W. 3 came running and asked the accused why they are beating the old people. Thereupon the accused are said to have shouted out that they were waiting only for him; and the first accused is said to have beaten the deceased on his right temple with a cart pole. He fell down. All the accused are said to then (have?) beaten him. The persons there shouted that he was dead and therefore the accused are said to have run away from the scene.
4. After the accused left, P. W. 1, finding that his brother's son had become unconscious went to the village Munsif and gave a statement which is Ex. P. 1 in the case. That contains substantially the present version of the prosecution, except that he did not mention that accused 2 to 6 also beat the deceased with sticks. The village Munsif came to the scene and finding the deceased in a precarious condition put him in a cart and sent the other three brothers P. Ws. 1 to 3 also who were injured in another cart to the police station at Veldurthi which is said to be between 6 and 8 miles from Allugundu. On the way Pedda Venkatanna (deceased) died. They reached the police station at about 9 p.m. that evening and gave the report sent by the village Munsif. The Head Constable who was in the station took a statement from the persons who brought the body of the deceased (who died on the way), registered a case and left Velurthi at 10-30 p.m. According to his evidence he searched for the accused and they were not to be found in their houses. He came back and held the inquest between 7 and 9 a.m. on the I7th of June. He then sent the body to the hospital at Dhone for post mortem examination.
5. Before he left the station at 10-30 p.m. Ellamma, the wife of the fourth accused, came accompanied by D. W. 1, Gajji Venkatanna, who is an uncle of accused 1 to 3 and he gave a report at the police station at about 10 p.m. That has been marked as Ex. D. 10. She had three injuries; one of her teeth had fallen down, according to her, as a result of the injury; of the two other injuries one was on the top of the right side of the head and the other on the chest below the collar bone. She was unable to speak and, therefore, D. W. 1 who accompanied her gave the statement, Ex. D. 10. In this he States that on the 16th June at about 4 p.m. there was a quarrel between D. W. 2, the injured person, and some other persons and that in the course of that quarrel Pedda Venkatanna (deceased) beat her on the head with a bamboo stick; and P. W. 2 and another man Bujjanna beat her with a stick on the right cheek with a stick on the chest. It is stated in this that on account of her injuries in the lower jaw and the falling out of the teeth she was having considerable pain and therefore she could not speak and so D. W. 1 was narrating what happened. It is also very significantly stated that although there were seven persons present when this woman was beaten none will speak to the occurrence. Next day she was also sent to the doctor at Dhone for medical certificates.
6. The next day, on 17th June, P. W. 4 the doctor at Dhone held the post mortem on the body of Pedda Venkatanna and found three injuries On him: (1) a transverse pinkish black contusion 8" by 4" on the left shoulder-blade; (2) oblique pinkish black contusion on the left side of the back; upper part of contusion merging with No. (1) injury; (3) this is the important injury viz., a diffused pinkish black contusion 4 1/2" in diameter over the right side of the head above the right ear extending downwards to right cheek prominence. The doctor found there was transverse fracture of right and left parietal bones and black clots of blood were present along the course of fracture between the bones and the dura-mater. The brain matter was congested and according to the opinion of the doctor, Pedda Venkatanna died of coma due to compression of the brain on account of fracture of the skull due to external injury No. 3.
7. On P. W. 1 the doctor found about seven injuries all of which were simple and minor injuries. On P. W. 2 he found one injury and on P. W. 3 he similarly found only one injury. The injuries on P. Ws. 2 and 3 according to the doctor might have been caused by stone throw. As regards the injury on the deceased he says that injury No. 3 which is really the serious one might have been caused by a big smooth stone being thrown at that part of the body. He also examined Madamma who was given her a certificate for her injury which unfortunately has not been filed in this case. But we find an extract of the medical certificate in the police diary of the police officer who had to read it from that diary. The injuries she received were, a diffused pinkish transverse contusion 3 1/2" x 2" along the lower portion of the right lower jaw. The doctor first thought that her right jaw bone was fractured but later on after sending for X-ray, he stated that there was no fracture. The second injury was a wound with irregular margin 1" x 1/4" x 1" on the top of right side of the head; the third was a diffused light pinkish contusion 4" x 4" on the right side of chest below right collar bone. The police referred the complaint given by D. WS. 1 and 2 (Ex. D. 10) as un-detectable and filed the case only against the appellants.
8. The defence of the accused is one of denial, stating that they were not at the scene at the time of the occurrence.
9. It is clear from the evidence of P. Ws. 1 and 5 that there was considerable amount of stone throwing by the accused. P W. 1 says in cross-examination that
"accused threw stones on my son, the deceas ed Pedda Venkatigadu. There was a ruined wall close by ..... The accused pulled out stones from that wall and hurled them."
Similarly P. W. 5 says in cross-examination that the accused threw stones at Pedda Venkatanna; and P. W. 11 stated in Ex. D. 14 an extract from this deposition in the committing Magistrate's court that "in the disturbance there was a throw of stones and poles. There was promiscuous pelting of stones and poles." P. W. 2 told the police that accused 1 threw a stick on the head of the deceased and the blow struck the deceased on his right temple and he fell down unconscious. But he denies having said so in his present evidence.
10. It is clear therefore from the evidence that the injuries on the deceased were caused either as a result of throwing the pole by the first accused or as a result of his throwing a stone at him. It is very significant that the third injury on the deceased and the first injury on D. W. 2 should more or less have been of the Same nature, both of them being of pinkish colour. The injury on the deceased was 4 1/2" in diameter whereas the injury on D. W. 2 was in the jaw 3" x 2". As already stated, the injury No. 3 on the deceased might have been caused by a big smooth stone being thrown at that part of the body. Similarly, all the injuries on D. W. 2 suggest that they are more likely to have been caused by stones hurled at her. Neither side would "admit the injuries on the other side. In fact there is no explanation on the side of the prosecution for the injuries caused to D. W. 2. The defence in Ex. D. 10 has not stated anything about the injuries on the prosecution witnesses. It seems to us that in the course of the quarrel, there was throwing of stones by both sides and one of the stones hit the right temple of the deceased resulting unfortunately in his death. Similarly, the injuries on the person of D. W. 2 were caused by stones thrown by the prosecution party. There was undoubtedly a confused fight in which both sides indulged in stone throwing against each other. In the circumstances it is difficult to fasten the liability on the first accused for the injury on the deceased. But, there can be no doubt that the appellants are guilty of rioting punishable under Section 147, I. P. C. We therefore convict the appellants of the offence under Section 147, I. P. C. and acquit them of other charges. For the offence under Section 147, the sentence is reduced to the period undergone.
11. A question of procedure has been raised. in this case and that is that the prosecution itself should have placed all the materials relating to the injuries on the person of D. W. 2 and filed Ex. D. 10 as an exhibit on the prosecution side. The case of the prosecution with regard to the injuries on D. W. 2 and Ex. D. 10 Seems to be from the arguments of the Public Prosecutor, in the lower court, that these injuries were self-inflicted and Ex. D. 10 was given to provide a defence for the accused. We do not find from the evidence any suggestion to support the above arguments of the Public Prosecutor in the lower court. The Investigation Officer if he had taken a little more trouble and investigated the case properly, would have found from the similarity of the injuries on the deceased and D. W. 2 and from a consultation with the doctor, that these injuries were more likely to have been caused by the stones than by sticks, in which case he would have realised that the injuries on D. W. 2 were caused at the same time and in the same occurrence in which the deceased was injured by stone. There would then be no charge sheet for murder but only for rioting and perhaps for culpable homicide not amounting to murder, even it the view was taken that the injury on the deceased was caused by A. 1 exceeding his right of defence to D. W. 2. We have remarked on more than one occasion that the police do not really investigate the case but merely content themselves with the evidence of witnesses readily provided by the complainant party.
12. 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 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 also and place before the court a definite case which they ask it to accept. We must deprecate the prosecution in such cases accepting, in toto 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. If in the present case, Ex. D. 10 was in the opinion of the investigating police a false complaint laid for defence purposes and the injuries on D. W. 2 self-inflicted, the prosecution should none the less have filed Ex. D. 10 and D. W. 2's medical certificate asking the court to reject them. The fact that a complaint Ex. D. 10 was filed, that it was treated as false or undetectable and that D. W. 2 did have injuries on his person are relevant facts which the prosecution itself should have placed before the court in the first instance instead of waiting for the defence to disclose them.