Dismissed

The Public Prosecutor, v. Bakki Mogaliah, (a 1)

Telangana HC17 Nov 2009CRLA/293/2005

Case brief

AI extract

What is this about?

The High Court dismissed the State's appeal against the acquittal of accused persons charged under IPC Sections 307 and 324. The court held that material discrepancies in prosecution testimony, inconsistencies regarding timelines and police procedure, and lack of medical corroboration for injuries failed to prove guilt beyond reasonable doubt, thus sustaining the trial court's finding. The appeal

What did the court decide?

The criminal appeal filed by the State against the acquittal of the accused was dismissed.

The Public Prosecutor, Vs Bakki Mogaliah, (a 1) — Murder and Culpable Homicide | Telangana HC (2009)

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THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD

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Criminal Appeal No.293 of 2005

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JUDGMENT:

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The acquittal of the accused in S.C.No.316 of 1999 on the file of the Assistant Sessions Judge, Sangareddy, by the Judgment, dated 29-08-2001, led the State to prefer the present appeal through the learned Public Prosecutor.

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The accused were prosecuted for the alleged offences punishable under Sections 307 and 324 read with 34 of the Indian Penal Code in Crime No.6 of 1999 of Indrakaran Police Station alleging that on 20-03-1999 at 10.00 AM, A1 to A5 armed with axes and other weapons went to the house of Chariyala Laxmaiah and attacked Chariyala Laxmaiah and Chariyala Hanumaiah with axes causing bleeding injuries. Apart from the said bleeding injuries caused to those persons by A1 and A2, A3 to A5 assaulted Chariyala Balaiah and Chariyala Lohith with sticks and caused injuries accusing Laxmaiah to be practising witchcraft.

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Laxmaiah gave a report, which was registered by H.C.742 of Indrakaran Police Station as Crime No.6 of 1999 at 6.00 PM on 20-03-1999 and after recording the statements of the witnesses, the injured were sent to Government Hospital, Sangareddy for treatment. No material evidence could be collected from the scene and the weapons could not be recovered. The accused surrendered before the Court and were released on bail and the Civil Assistant Surgeon, who treated the injured, opined the injuries to be grievous and simple respectively.

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After the appearance of the accused before the Court and

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after furnishing copies of the documents to them, the Magistrate committed the case to the Court of Session in P.R.C. No.33 of 1999 and the charges under Sections 307 and 324 read with 34 of the Indian Penal Code were framed, for which the accused pleaded not guilty. The prosecution examined P.Ws.1 to 11 and marked Exs.P1 to P6 during the course of trial and the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure. They did not produce any defence evidence.

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The fourth accused died during the pendency of the case and the case against him was recorded as abated.

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The trial Court rendered the impugned judgment referring to the oral and documentary evidence and opining that the prosecution was guilty of suppressing material facts. The trial Court noted the submissions made by the learned Additional Public Prosecutor and the learned defence counsel and observed about the close relationship between P.Ws.1, 3, 4 and 8, who are brothers and also the relationship of P.Ws.5 to 7 with them. The trial Court also noted that the only independent witness P.W.9 stated about P.Ws.1 and 3 to 5 beating the accused and his separating them, thus speaking adversely to the prosecution story. The trial Court further noted that the injuries disclosed during the examination by P.W.2 of the injured do not correspond to the alleged overt acts said to have been committed by the accused using axes and sticks. The trial Court further noted that apart from the absence of any cut or incise wounds on the injured, the alleged fracture said to have been sustained was not spoken to by P.W.5 himself. The trial Court further noted that the claim of P.W.3 about his little finger being broken was not corroborated by the medical evidence and the trial Court also noticed the

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discrepancies relating to the registration of the crime as per Ex.P1 report and the reference of the injured to the hospital for treatment with particular reference to their going straight to Sangareddy Police Station and not Indrakaran Police Station. Due to all these factors, the trial Court was of the opinion that the suppression of material facts by the prosecution entitled the accused to the benefit of reasonable doubt and consequently the trial Court acquitted the accused.

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The challenge to the said Judgment in this appeal is on the ground that minor discrepancies in the evidence of P.Ws.1 and 3 to 5, which was otherwise consistent and creditworthy could not have been the basis for an acquittal of the accused. The alleged suppression of the facts by the prosecution was also denied and the judgment of acquittal is therefore sought to be subjected to reversal.

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Sri K.Venkateswara Rao, learned counsel representing the learned Public Prosecutor for the appellant and Sri C.Praveen Kumar, learned counsel for the respondents/accused are heard at length.

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After the case against the fourth accused stood abated during the trial itself, the point for consideration in this appeal is whether the guilt of A1 to A3 and A5 for the alleged offences punishable under Sections 307 and 324 read with Section 34 of the Indian Penal Code was proved beyond reasonable doubt?

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P.Ws.1, 3, 4 and 8 are brothers and P.W.5 is the son of P.Ws.3 and 6. P.W.7 is the wife of P.W.1 and as such the evidence of P.W.1 and P.Ws.3 to 8 is necessarily tainted with interestedness and though every interested evidence is not false

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evidence, it is an accepted rule of prudence that independent corroboration for such evidence has to be sought for before accepting such evidence. Apart from the need for a close and careful scrutiny of such evidence, the delay in giving Ex.P1 report to the Police after the incident at 10 AM on 20-03-1999 also necessitated further care and caution before accepting the prosecution version in the absence of any satisfactory explanation for the delay. In addition to the same, it is also to be noted that P.W.10, who registered the First Information Report, clamed to have received Ex.P1 report at 6.00 PM on 20-03-1999, after which he referred the injured to the headquarters hospital Sangareddy for treatment. But, the medical officer, examined as P.W.2, claimed to have examined the injured from 5.20 PM to 5.45 PM. If Ex.P1 was presented to P.W.10 at the Police Station at Indrakaran at 6.00 PM, as claimed by P.W.10, it would have been a physical impossibility for P.W.2 to examine the injured referred to him by P.W.10 between 5.20 PM and 5.45 PM at Sangareddy.

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P.W.1 stated in his evidence that his relative Ramachandraiah took him to Sangareddy Police Station, where his statement was recorded and his signature was obtained and he did not go to Indrakaran Police Station, but Indrakaran Police themselves came to Sangareddy Headquartes Hospital at about 6.30 PM. He was specific that other injured and other witnesses also accompanied him to Sangareddy Police Station, while the Head Constable and Constables of Indrakaran Police Station enquired about the incident and recorded his statement and also obtained his signature at the Hospital. The version of P.W.1 thus runs quite contrary to the claims of P.W.10. P.W.1 also claimed that the Police conducted a scene of offence panchanama, which was not the claim of P.W.10 or any other investigating officer and

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it was specifically stated in the charge sheet that such a panchanama of the scene could not be conducted for the reasons stated therein. P.W.3 also stated about going to Sangareddy Police Station even by 3.00 PM or 3.30 PM and being referred to Hospital for treatment. He also stated about Ramachandraiah bringing them to the Police Station and Sangareddy Police recording their statements before sending them to Hospital. The Police did not seize the blood stained clothes from them according to PW.3, which omission in investigation also is inexplicable and P.W.4, on the contrary, while claiming like P.Ws.1 and 3 about going to Sangareddy Police Station where their statements were recorded and from there they were referred to Sangareddy Hospital, claimed that he gave his bloodstained clothes to the Police. No such bloodstained clothes were produced before the Court and if his claim that the scene of offence was stained with blood was true, the investigating Police should have taken steps to seize the bloodstained earth and controlled earth from the scene. P.W.5 claimed to have given a Report to Sanga Reddy Police even by 4.00 PM and he was claimed to have been examined at the Hospital by 6.00 PM. P.W.6 also spoke similarly and the claims of P.Ws.6 and 7 of receiving injuries and being referred to Hospital for treatment are not corroborated either by the investigating officers or by any medical evidence. P.W.8, contrary to others, claimed that even by 4.00 PM or 5.00 PM Indrakaran Police came to their Village and the only independent witness, examined as P.W.9, claimed on the contrary that the Police came to village on the next day. Thus, the version of the witnesses as to their going to Sangareddy Police Station direct and being referred to the Hospital at Sangareddy from there is totally inconsistent with the claims of P.W.10 about his being in Indrakaran Police Station

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when he received Ex.P1 from P.W.1 and his referring P.Ws.1 and 3 to 5 to the Hospital from there. These circumstances create genuine doubt about the acceptability of the prosecution version.

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Apart from the doubts so created on the credibility of the story, it is also seen from the evidence of P.W.1 himself that he had seen the accused 2, 4 and 5 in the Hospital who were already admitted by the time he went to the Hospital. P.W.1 also stated that they were in Hospital for about 3 days and he was speaking about a galata that took place for nearly 1 ½ hours during which time several people gathered there. He claimed that one, Chettukinda Mallaiah separated them, which person was not examined by the prosecution and the very galata for about 1 ½ hours and admission of three accused in the Hospital may indicate that it was probably a fight between two groups requiring determination as to who was the aggressor and who was the aggrieved, but the prosecution never made any reference to any of the accused being injured during the incident. P.W.3 conveniently claimed ignorance as to whether the accused gave a complaint even before they gave a report, though he tried to deny the accused being injured during the incident. P.W.4 denied the accused being injured, but P.W.5 again claimed ignorance about the accused being admitted in the Hospital with injuries or the accused giving a complaint about being beaten by them. P.W.6 also does not know whether the accused received injuries and P.W.7 was also similarly ignorant. Though any attack on the accused by them was denied by witnesses, P.W.8 while denying the accused being beaten, significantly stated that he did not see the accused beating P.Ws.1 and 3 to 5. P.W.9, who is the only independent witness, stated that he noticed P.Ws.1 and 3 to 5

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beating the accused with sticks and iron rods at the house of P.W.1 and he claimed to have separated them. He was unaware as to who beat P.Ws.1 and 3 to 5 and he was positive that P.Ws.1 and 3 to 5 and also the accused had injuries. It was clear from his evidence that the probability of the prosecution party itself being the aggressor is very much present and the failure of the prosecution to place before the Court the entire truth is selfevident from such evidence.

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P.W.1 claimed to have received injuries with an axe and sticks and he claimed P.W.3 also to have received an injury with an axe. He admitted that there were no prior disputes before this incident between them, which was suggestive of the absence of any motive for the accused to indulge in the offences. It is also stated about his clothes being stained with blood and earth being stained with blood at the scene, but he did not remember whether the Police seized the blood stained clothes. Apart from the improvements made in his version from Ex.P1 to his evidence, P.W.1 also admitted that none including the accused ever complained earlier about their practising witchcraft. P.W.3 also claimed to have suffered injuries with an axe and then with sticks and he claimed that his right hand’s little finger was broken, which did not find place in the medical evidence. P.W.4 also claimed to have suffered an axe injury on the head, but according to him, P.W.1 suffered injuries only with sticks. His claim of losing consciousness at the scene was not corroborated by any other witness and P.W.4 again stated about P.W.1 being injured with axe apart from sticks, while P.W.5 claimed to have been injured with sticks only and P.W.6 also claimed the use of axes against P.W.1, P.W.3 and P.W.5. The claim of P.W.6 that one, Laxmaiah also beat P.W.5 was not stated by others and she admitted that the accused also came to the Hospital for treatment. P.W.7 also

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claimed the use of axe against P.W.1 and she claimed about P.W.1 losing consciousness for about one hour, which was not specifically corroborated by others. While seizing of blood stained clothes by Police as claimed by P.W.7 was not corroborated by the investigating officers, P.W.8 did not even attempt to save the injured from the hands of the accused and he did not say with what weapons the injured were assaulted by the accused.

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These claims of the injured and the other interested witnesses cannot be considered to have found satisfactory corroboration from the medical evidence of P.W.2, who was positive that none of the injured had any cut or incise injuries. He opined the injuries of all the four injured to be possibly caused by a blunt weapon and it is not in evidence that it was only the blunt sides of the axes that touched the persons of the injured but not their sharp edges. P.W.2 was positive that use of sharp instruments like axes will cause incise wounds and the evidence of P.W.2 also thus creates a doubt as to whether the incident had occurred in the manner alleged by the prosecution.

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Though it is true that the very defence version suggested to prosecution witnesses may be indicative the happening of a scuffle between both the groups involving the use of weapons also, when the whole truth is not placed before the Court, it becomes impossible to determine as to who was the aggressor and who was the aggrieved. The evidence of the investigation officers as P.Ws.10 and 11 is no way helpful, as they did not attempt to explain and reconcile crime No.5 of 1999 registered at the behest of the accused against the prosecution party. Under such circumstances, the adversities arising out of the evidence against the credibility of the prosecution version cannot be considered minor and insignificant, as the various circumstances

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go to the root of the acceptability of the prosecution version. The trial Court cannot be considered to have gone wrong in concluding that the prosecution failed to prove the guilt of the accused. Therefore, appeal has to fail.

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In the result, the Criminal Appeal is dismissed.

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______________________ G.BHAVANI PRASAD, J.

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17^th November, 2009. skmr

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THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD

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Criminal Appeal No.293 of 2005

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Date 17-11-2009

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Between :

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The Public Prosecutor, High Court of A.P., Hyderabad .. Appellant And Bakki Mogaliah and 3 others .. Respondents

The Public Prosecutor, v. Bakki Mogaliah, (a 1)

Case brief

What is this about?

What did the court decide?

The Public Prosecutor, v. Bakki Mogaliah, (a 1)

Case brief

What is this about?

What did the court decide?

What the court decided

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