Partly allowed

Dasarajula Chakali Venkatswamy, (A1) v. The State of A.P.

Telangana HC27 Jul 2012CRLA/976/2008

Case brief

AI extract

What is this about?

In a criminal appeal regarding a murder and SC/ST atrocity case, the High Court acquitted A2 due to lack of corroboration for specific overt acts of beating in police statements, while confirming A1's conviction based on consistent eye witness testimony regarding the fatal injuries caused by a knife.

What did the court decide?

Conviction and sentence against A2 set aside and acquittal granted; conviction and sentence against A1 confirmed.

Dasarajula Chakali Venkatswamy, (A1) Vs The State of A.P. — Caste Atrocities | Telangana HC (2012)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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PRESENT : :

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND

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THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.976 of 2008

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Dated:27-07-2012

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Between:

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Dasarajula Chakali Venkataswamy and another

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….Appellants

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And

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The State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad.

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….Respondent

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The Court made the following:

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THE HON’BLE SRI JUSTICE N.V.RAMANA AND

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THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.976 of 2008

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JUDGMENT: (per the Hon’ble Sri Justice P.Durga Prasad)

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This appeal is directed against the conviction and sentence passed in S.C.No.91 of 2006 by the Special Sessions Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VII Additional Sessions Judge, Mahabubnagar on 21.06.2008.

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The appellants herein are A1 and A2 and they along with two others were prosecuted for the offences under Section 302 read with 34 of the Indian Penal Code, 1860 (for short “IPC”) and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Act”) and A3 and A4 were charged for the offence under Section 302 read with 109 of IPC.

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According to the prosecution, the deceased Mandapuram Krishnaiah is a member of Scheduled Caste hails from Chekkepally village of Pangal Mandal. A1 and A2 also belong to Chikkepally village and belong to B.C. community. A3 and A4 are Baindla by caste under S.C. community hails from Yedula village. On 05.06.2004, A1 and his cousins performed Yellamma Devara and Veera Nagamma Devara at Chekkepally village as per their custom. A3 and A4 were called for the said pooja. The deceased, Mandapuram Budda Balaiah and PW.5 were called for beating drums. On 05.06.2004 Mandapuram Budda Balaiah, Devamma and Mandapuram Bichamma drew the Yellamma Patam (Muggu) in front of the house of Harijan Chinna Kistaiah at the ‘Galla’. The deceased said to have drawn the Bethala Patam and on seeing A3 and A4 have instigated A1 and A2 that Bethala Patam meant for practicing sorcery and it may cause hazards to their families, as such on 06.06.2004 at 10.00 hours a panchayat was held at the Grampanchayat office in which the deceased was asked for having drawn the Bethala Patam (Muggu). In the mean time, A2, who became furious, caught hold of the shirt of the deceased and dragged him out of the Grampanchayat office and A1 pounced upon the deceased with a slaughtering knife and stabbed over the neck and other parts of the body. In the mean time, A2 pulled the deceased on the ground and beat with a stick on the sides of the body. A1 cut down the Kalla Pikkalu of the deceased with knife. Later A1 and A2 fled away from the scene of offence. Basing on the complaint given by PW.1, a case in Cr.No.66 of 2004 under Sections 302 read with 109 of IPC and Section 3(2)(v) of the Act was registered by PW.14. Thereafter PW.15 took up the investigation, examined the

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witnesses and held inquest over the dead body of the deceased and sent the dead body for post mortem examination and drafted the scene of offence panchanama and seized the blood stained earth, control earth and blood stained white colour shirt and white colour polyester pancha, white colour towel, white colour banion and blue colour half nikkar from the scene of offence and on 09.06.2004 arrested A1 and A2 at the residence of A1 at Wanaparthy and recorded their confessional statements in the presence of PWs.10 and 11 and in pursuance of the confession recorded the slaughtering knife used in the commission of the offence on 16.06.2004 and the remaining accused A3 and A4 were arrested and sent for judicial custody. He obtained the caste certificate of the accused. The doctor, PW.17, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to shock and heamorrhage due to injuries. The investigating officer after completion of investigation filed the charge sheet against the accused.

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The Sessions Judge has framed the charges under Sections 3(2)(v) of the Act and Section 302 read with 34 of IPC against A1 and A2; Section 302 read with 109 of IPC against A3 and A4 and all the accused pleaded not guilty for the said charges.

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The prosecution in order to establish the said charge examined P.Ws.1 to 17 and got marked Exs.P-1 to P-17 and MOs.1 and 2. No oral evidence was adduced in defence but Exs.D-1 to D-3 were marked on their behalf.

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Taking into consideration of said oral and documentary evidence, the Sessions Judge found A1 and A2 guilty for the charge under Section 3(2)(v) of the SCs & STs (POA) Act, and convicted and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment for a period of three months. A1 and A2 are also found guilty for the charge under Section 302 of IPC and convicted and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/- each in default to undergo rigorous imprisonment

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for a period of three months. A3 and A4 are found not guilty for the charge under Section 302 read with 109 of IPC.

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Aggrieved by the said conviction and sentence, the present appeal is filed.

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Now the point that arises for consideration is whether the prosecution could able to establish the charges under Section 3(2)(v) of the SCs & STs (POA) Act and Section 302 of IPC against A1 and A2 beyond reasonable doubt?

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POINT:

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The appellants’ counsel has pleaded that all the eye witnesses to the alleged incident have turned hostile and PWs.1, 2 and 5 are the interested witnesses and their evidence is contradictory to each other and as such their evidence cannot be relied upon. He further pleaded that even though specific overt acts attributed against A2 in the complaint by PW.1 but he has not stated the same in his evidence and PW.2 did not state before the police in his statement under Section 161 of Cr.P.C. about the specific overt acts attributed against A2 and as such A2 is entitled to be acquitted for the charge under Section 302 of IPC and as the evidence of PWs.1, 2 and 5 cannot be relied upon, A1 is also entitled to be acquitted for the charges framed against him.

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The Additional Public Prosecutor, on the other hand, has pleaded that the evidence of PWs.1, 2 and 5 is corroborating with each other with regard to the specific overt acts of A1 and A2 in causing injuries to the deceased and the deceased died due to the injuries as per the opinion of PW.17 and, therefore, the trial Court has rightly convicted the accused for the charges framed against them and the said finding does not warrant any interference by this Court in this appeal.

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According to the prosecution, the deceased, PW.5 and another Balaiah were called for beating drums by A1 at the pooja performed by

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him for the Yellamma Devara and Veera Nagamma Devara from 03.06.2004 to 05.06.2004. On 05.06.2004 Balaiah, Devamma and Bichamma had drawn Yellamma patam in front of the house of Harijan Chinna Kistaiah and the deceased drew a Bethala patam and on seeing it A3 and A4 instigated A1 and A2 stating that the Bethala Patam (Muggu) is meant for practicing sorcery and it may cause hazards to their families, as such on 06.06.2004 at about 10.00 hours a panchayat was held at the Grampanchayat office in which the deceased was asked for allowing the Betala patam and in the mean time A2, who became furious, caught hold of the shirt of the deceased and dragged him out of the Grampanchayat office and A1 pounced him with a slaughtering knife and hacked him on the neck and other parts of the body and A2 also beat the deceased with a stick on his body.

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PW.1 is the eye witness to the said incident and also the complainant, and according to him, three years back, there was a devara festival in the house of A1. A3 and A4 were also called for the said function. Three days the festival was performed in the house of A1 i.e. Thursday, Friday and Saturday. The deceased Balaiah was called by A1 in the function for beating drums. At the house of A3 on Saturday, Devamma and others had Muggu and deceased had drawn the photograph of bethaludu with Muggu and A3 and A4 have objected for drawing bethaludu stating that it amounts to sorcery and on that a panchayat was held in the village at the Grampanchayat office. He also attended the said panchayat and in the said panchayat A2 caught hold the shirt of the deceased and dragged him to the street before the Grampanchayat office and A1 hacked the deceased with a knife which is useful for cutting goats and the deceased fell down on the ground. A1 hacked the deceased with the same weapon on the cheek and chest and he also cut the pikkalu. Himself, Balaiah, Balaswamy, Ramulu and others witnessed the offence and the deceased died on the spot due to injuries caused by A1. In the cross-examination he admitted that he stated to police that muggu was put in front of the house of Chinna

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Kistaiah by Harijan Devamma, Bichamma and Budda Balaiah and in the cross-examination by A3 and A4, he admitted that if the villagers feel it proper to have bethaludu muggu at the place of galla where the function is going on the villagers may do it otherwise they do not do it and further admitted that bethaludu muggu should be compulsory at the time of Devara in the village.

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PW.2, who is said to be another eye witness to the incident, has supported PW.1 with regard to A1 performing Devara festival and calling the deceased and others for beating drums and the accused drawing a bethaludu muggu at that place and A1 objecting for the same and a panchayat in that regard was held in the Grampanchayat office on the next day and according to him, in the said panchayat A2 caught hold of the shirt of the collar of the deceased and dragged him from the office and A1 hacked the deceased with a knife and also caused injuries with the said knife on the hands and legs and soon after the deceased fell down with bleeding injuries. A2 picked up a stick and beat him on the chest. About 300 to 400 people were present at the Grampanchayat office at the time of conducting the panchayat. He denied the suggestion that he has not stated before the police that A2 beat the deceased on the chest with a stick when he fell down but the investigating officer PW.15 has stated that PW.2 did not state before him that A2 beat the deceased with a stick when he fell down. Therefore, the said statement is an omission in the statement given before the police and an improvement before the Court.

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The other eye witness, PW.5, also supported PWs.1 and 2 with regard to the deceased drawing bethaludu patam and in that regard a panchayat was held in the village on the next day at panchayat office and according to him, at 11.00 a.m. A2 caught hold of the shirt of the deceased and dragged him and A1 hacked on the neck with a knife. Soon after A1 hacked on the neck of the deceased, the deceased Krishnaiah fell down with bleeding injuries and he ran away from the scene due to fear. At the time of incident about 20 to 50 persons were

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present. Therefore, from the evidence of PWs.1, 2 and 5, it is established that a panchayat was held in the Grampanchayat office on 06.06.2004 with regard to the deceased drawing a bethaludu patam in the pooja performed by A1 in the village.

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According to PW.1, A2 dragged the deceased from the panchayat office and A1 hacked him with a knife used for cutting of goats and when the deceased fell down, A1 also cut the pikkalu of the deceased. But he did not state anything about the specific overt acts of A2 except dragging the deceased out of the panchayat office. PW.1 has given the complaint to the police, which is marked as Ex.P-1. In the said complaint, he has stated that A2 caught hold of the shirt collar of the deceased, who was sitting on a corner of the warandah of Grampanchayat office and was pulling to a distance and A1 stabbed with a knife, which is used to cut the bags, he sustained bleeding injury and fell down and inspite of that he did not stop causing injury, in the meantime A2 picked up a stick and beat the deceased. Even though PW.1 in Ex.P-1 stated the specific overt acts of A2 but did not state in his evidence. As already observed above, PW.2 has stated about the specific overt acts of A2 in beating the deceased. But according to Investigating Officer PW.15, PW.2 did not state the same in the statement under Section 161 of Cr.P.C. and it is an improvement made by him during the course of trial. As such the evidence of PW.2 with regard to A2 beating the deceased with a stick cannot be believed. PW.5, another eye witness, did not speak anything against A2. Therefore, there is no material on record to show that A2 has beaten the deceased except dragging the deceased from out of the panchayat office. Even with regard to dragging of the deceased from the panchayat office, the investigating officer PW.15 in his cross-examination has stated that PW.1 did not state before him that A2 dragged the deceased into the bazaar but he stated that A2 dragging the deceased and he further stated that PW.2 also did not state before him that A2 dragged the deceased from the office but stated A1 was dragging. Therefore, even the evidence of PWs.1 and 2 with regard to A1 dragging

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the deceased out of the panchayat office was not stated in their statements under Section 161 of Cr.P.C. Therefore, there is no material to establish that A2 has caused injuries to the deceased, which led to his death. Thus, the prosecution could not establish the charge framed against the accused.

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With regard to the charge against A1, PWs.1, 2 and 5 have specifically stated about the accused hacking on the deceased with a cutting knife on the neck and other parts of the body. According to the doctor, PW.17, who conducted autopsy over the dead body of the deceased, he found 10 injuries and out of them seven injuries are on the neck and other three injuries are on the right forearm, right leg and left leg and according to him, the deceased died due to shock and heamorrhage due to the injuries. Therefore, the medical evidence is also corroborating with the oral evidence of PWs.1, 2 and 5 with regard to A1 causing injuries to the deceased on the neck and other parts of the body and the deceased died due to said injuries. Hence, A1 is responsible for the death of the deceased.

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With regard to recovery of weapon, PW.15, the investigating officer, has stated that on 09.06.2004, he arrested A1 and A2 at Wanaparthy and interrogated them in the presence of PWs.10 and 11 and A1 confessed about the commission of the offence along with A2 and he produced a knife and seized it under cover of a panchanama in the presence of PWs.10 and 11. He also seized a shirt of A1 under the same panchanama. But PW.10 even though has stated that he was called to the house of A1 for conducting a panchanama in the evening hours found A1 and A2 in the custody of the police and police seized the clothes in their presence from A1 and A2 and except that nothing was seized from them. Thus, PW.10 has turned hostile to the prosecution and not supported the case of the prosecution with regard to recovery of weapon at the instance of A1.

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PW.11 has stated that his signatures were obtained in

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Wanaparthy police station and nothing was seized from the possession of A1 by the police in his presence. Therefore, PW.11 also turned hostile to the prosecution. Therefore, the prosecution has failed to establish the recovery of the weapon at the instance of the accused.

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When PWs.1, 2 and 5 eye witnesses have specifically stated about the specific overt acts of A1 in causing injuries to the deceased, the recovery of the weapon will lose its importance and it is not fatal to the case of the prosecution. Thus, the prosecution could able to establish that A1 caused the injuries to the deceased and he died due to the said injuries. There is no dispute that the deceased belongs to SC by caste and A1 is SC by caste. Thus, the prosecution could able to establish the charge under Section 3(2)(v) of the SCs & STs (POA) Act and Section 302 of IPC against A1 beyond reasonable doubt.

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In the result, the Criminal Appeal is partly allowed and the conviction and sentence passed against A2 in S.C.No.91 of 2006 by the Special Sessions Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VII Additional Sessions Judge, Mahabubnagar on 21.06.2008, is set aside and he is acquitted for the charges under Section 3(2)(v) of SCs & STs (POA) Act and Section 302 of IPC and he shall be set at liberty forthwith, if he is not required in any other case. The conviction and sentence passed against A1 for the offences under Section 3(2)(v) of SCs & STs (POA) Act and Section 302 of IPC, is hereby confirmed.

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__________________ JUSTICE N.V.RAMANA

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______________________ JUSTICE P. DURGA PRASAD Date:27-07-2012 MR

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THE HON’BLE SRI JUSTICE N.V.RAMANA

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AND

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THE HON’BLE SRI JUSTICE P. DURGA PRASAD

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CRIMINAL APPEAL No.976 of 2008

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Date:27-07-2012

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Dasarajula Chakali Venkatswamy, (A1) v. The State of A.P.

Case brief

What is this about?

What did the court decide?

Dasarajula Chakali Venkatswamy, (A1) v. The State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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