Judgment:
1. This appeal is directed against the convictions recorded and sentences imposed against accused Nos. 1, 2, 4, and 5 by the Court of Session, Srikakulam in Sessions Case No. 27 of 1990. Totally, there were 8 accused; but, as accused Nos. 6 and 8 were minors, their case was separated. Accused Nos. 3 and 7 were acquitted of all the charges. The accused were prosecuted for the offences punishable under Section 148, (A1 to A5 and A7), 302(A1 & A7), 302 read with 149(A2 to A5), 324, (A1, A2, A3 and A5), 323(A2 and A7) and 326 (A1) of Indian Penal Code. A1 was convicted for the offences under Sections 304, Part II, 326 and 324 of IPC, and was sentenced to undergo rigorous imprisonment for 3 years, 2 years and 6 months respectively. A2 was convicted under Section 324, IPC, and was sentenced to suffer rigorous imprisonment for 6 months. A4 and A5 were also convicted under Section 324, IPC and were sentenced to undergo 6 months rigorous imprisonment each. The said accused A1, A2, A4 and A5 are the appellants herein.
2. The accused party and prosecution party are closely related. A2 and PW1 are real brothers and they reside in the thatched sheds adjoining each other. A7 is the wife of A2, while A1, A3, A4 and A6 are their sons and A8 is their daughter. The deceased, PWs. 2 and 3 are there sons of PW1, while PW4 is the daughter of PW2 and PW5 is the wife of the latter. PWs. 6 to 8 are the neighbours, while PW9, is an inquest and panch witness. PW 10 is the Doctor. While PW11 is the Police Constable, PW12 is the Sub-Inspector. PW13 is the Inspector of Police, who investigated into the case and filed the charge sheet.
3. The case of the prosecution is that not only the prosecution and accused party are residing in the huts adjoining each other, but their lands also adjoin each other. The land of the accused party intervene between the land of the deceased party and one Mr. Jogi Panthulu, an Advocate. As sufficient water did not strike in the land of the deceased party, the latter had contacted with Mr. Jogi Panthulu for supply of water from the well situated in his field, which has to pass through the land of the accused party. It is alleged that, on 29-5-1989 at about 6.00 A.M., when PW1 went to the field, he found that the water supply was disrupted on account of cutting of the pipe carrying the water to his field from the well of Jogi Panthulu. He did not make accusation against any body and he returned back. At a little later, his daughter-in-law i.e. PW5 went to the field and on finding that the pipe was cut off, she abused the persons who were responsible for that without naming anybody and that A2 and A7 took exception to that and that while A7 and her daughter (A8) caught hold of her tuft hair, A2 beat ber. She went and complained to the deceased and other prosecution witnesses. It is further alleged that the accused party came to the place in front of the house of PW1 and attacked them with rice pounder and sticks and injured them and that on account of the same, the deceased viz., Balli Apto died while others received injuries. PWs. 1 to 8 are claimed as eye-witnesses. It is needless to mention that PWs. 1 to 5 are from the same family and are interested witnesses. PWs. 6 to 8 are projected as independent witnesses, who are said to have witnessed the occurrence, but, PW6 turned hostile. In Ex. P1, which was lodged on 29-5-1989 by PW1 to PW12, the overt acts of the accused were not mentioned. The names of the witnesses were also not mentioned. Even the place of offence is not mentioned. The theory set up by the prosecution that firstly PW1 went and having found that the pipe was cut off, he abused the persons without naming them and thereafter PW5 went and that she was beaten and she has complained about the same to him and others is not at all stated. The role attributed to A7 and her daugher A8 that they squeezed the testicles of the deceased resulting in his death is conspicuously absent in Ex. P1. Another significant factor is the absence of mention of rice pounder being handled by any of the accused. As this is a fight between the close relatives i.e. the deceased party forming one faction and the accused another and as PWs. 1 to 5 belonging to prosecution party, their evidence cannot be believed without any corroboration and more particularly when they say that the other indenpendent witnesses were present. Further, as compared to the recitals of Ex. P1, PWs. 1 to 5 improved in their version a lot leading to their discredence. Their evidence is riddled with material omissions and contradictions. PW6 did not support the case of the prosecution and as such he is of no assistant to its case. Coming to PW7, as already stated, his name was not mentioned in Ex. P1 (FIR). Further, it is elicited from PW7 that his mother is the elder sister of PW1's wife. He did not support the version of PWs. 1 to 5 on material particulars excepting stating like parrot with regard to the alleged injuries inflicted by the accused party on the deceased party. His evidence does not inspire confidence and rightly his witnessing the occurrence was ruled out by the lower Court. In fact, he has admitted that he was not at all examined by the police and coupled with the factor his name was not mentioned in Ex. P1, is sufficient to hold that he was not present at the scene of occurrence, apart from other reasons. The same reasoning is applicable to PW8 also. The only minor difference being that he is not a relative, but the way he spoke and that too, falsely, shows that he is interested in the prosecution and he has been set up as a witness. The lower Court also disbelieved the presence of PW8 and rightly so. One very significant factor is that PWs. 1 to 8 are not examined on the day of occurrence and in fact, PWs. 1 to 5 did not state anything to the police on the day of the occurrence excepting lodging Ex. P. 1. The statements of PWs 1 to 5 are recorded on the 4th day of the occurrence of the incident while that of PWs. 6 to 8 on the 5th day of the occurrence. There is absolutely no explanation for such delayed examination of the prosecution witnesses, when they were readily available on 29-5-1989.
4. But, even then, violence on the person of prosecution witnesses viz., the deceased PWs. 1 to 4 cannot be ruled out, in spite of the fact that it is unsafe to rely upon the interested testimony of PWs. 1 to 5. The reason is that the Doctor, PW 10 has testified with regard to the above injuries and proved by Ex. P6 (wound certificate relating to the deceased), Ex. P7 (Post-mortem certificate) and Ex. P8 (wound certificate relating to PW1), Ex. P9 (Wound certificate relating to PW2), Ex. P10 (wound certificate relating to PW3) and Ex. P11 (wound certificate relating to PW4). But the Doctor's certification cannot pinpoint a particular accused. But, if this is the only evidence, if not under the specific charges, the appellants may be liable for conviction as the members of unlawful assembly with a common object.
5. While Crime No. 30/89 was registered by Pathapatnam Police Station from which the present proceedings sprang, Crime No. 31/89 was registered by the same police station on the complaint lodged by A2 against the deceased PW2, PW3, PW4, PW5 and 6 others for the offences under sections 147, 148, 448, 324 and 323 of Indian Penal Code. The accusation in the said complaint was that the above persons had on 29-5-1989, having entered their house, abused them alleging that they were responsible for stopping water to their fields by cutting of the borewell pipe, beat them with sticks and other weapons and that they were injured. The fact that such a crime was reported and that the same was registered is admitted by PW12. PW10, the doctor, had admitted in his cross examination that on the same day i.e. 29-5-1989, he had examined A2, A4 and A7 and found the following injuries on their person :
A2 :-
(1) Abrasion 4 c.m. x 1/2 c.m. on the right side of the neck.
(2) Abrasion 5 c.m. x 1/2 c.m. over right shoulder. Moist clots were present over both the injuries.
(3) Contusion 3 cm. width medial side of right elbow. Red in colour.
Injuries 1 and 2 might have been caused by sharp weapon and No. 3 by a blunt weapon four hours before his examination. Ex. D17 is the wound certificate issued by him.
A-4
(1) Laceration 4 x 1/2 c.m. x 1/2 c.m. over right parietal region. Fresh clots were present.
The above injury might have been caused with a blunt weapon about 4 or 5 hours prior to the examination.
Ex. D18 is the wound certificate issued by him.
A-7
(1) Contusion 1 c.m. diametre on the left side of the occipital region.
(2) Contusion 2 c.m. diametre over left deltoid region.
(3) Contusion 2 c.m. diametre on the back of the left elbow.
(4) Contusion 2 c.m. diametre on the lateral side of the left wrist.
(5) Contusion 3 c.m. diametre on the lateral side of the left neck.
All are red in colour. The above injuries might have been caused with a blunt weapon about 4 hours prior to the examination. Ex. D 19 is the wound certificate issued by the Doctor.
The Exhibits have been proved through PW 10 and he testifies that he examined A2, A4, A7 on requisition by police on 29-5-1989 between 11 and 11.30 A.M. But, strangely, while no action has been taken against the accused in Crime No. 31/89 i.e. the deceased party in the instant case, on the report of A2, action was only taken against accused on the complaint of PW1. No efforts were made by the police to record the statements of the accused in the present case.
6. The further fallacy in the case of the prosecution is that PWs. 1 to 5 did not state anything about the injuries sustained by the above accused and it was incumbent upon them to speak truth revealing all the facts stating that not only that they have received injuries at the hands of the accused, but also to explain as to how and why the accused party also received injuries. PWs. 12 and 13 had, in fact, suppressed the real genesis of the case of the prosecution in active collusion with PWs. 1 to 5. Otherwise, there was no reason for them not to state the true facts. It is a different case if the prosecution comes with the true version of the genesis of the incident and makes an accusation against the accused that the latter were the aggressors and that in high-handed fashion and with brute force, they had inflicted injuries on the deceased party and that the deceased party exercised their self-defence. But, that is not the plea of the prosection at all. The prosecution has deliberately suppressed the very genesis of the incident and has not explained the injuries on the accused. It has to be borne in mind that in cases of this nature, it is necessary for the prosecution to state the true story of the genesis of the occurrence, as it is necessary to decide as to who was the aggressor when both the parties had received injuries. If the prosecution fails to do so, then as an inevitable corollary, the benefit of doubt has got to be given to the accused entitling their acquittal. This very important aspect was ignored by the Sessions Court, in spite of its finding that true genesis of the story of the prosecution was not stated. It is apt to extract the finding of the Sessions Court in this regard :
'Thus, even if both sides are silent regarding the manner of attack on the opposite side, it is very much clear that each side attacked the other on account of some grudge and is not coming forward with the correct version of the incident .....
From the manner in which both sides have received injuries, it is clear that both sides were armed .....'
7. In view of what is stated supra, I set aside the convictions recorded against the appellants herein and the sentences imposed against them and they are set at liberty. Their bail-bonds stand cancelled.
8. The Criminal Appeal is allowed accordingly.
9. Appeal allowed.