sec.324 ,307 r/w sec.149 and sec. 302 I.P.C. = case and counter case not tried by one court - non-certainty about who killed the deceased when deceased himself was found guilty of sec.324 of I.P.C. in counter case - change in place of occurrence - conviction is not safe - sessions court orders are set aside - Appeal was allowed = Golla Sankaraiah (A1), S/o.Kalappa and eight others. The State of Andhra Pradesh, rep.by Public Prosecutor, High Court of A.P., Hyderabad. = http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=5389

sec.324 ,307 r/w sec.149 and sec. 302 I.P.C. = case and counter case not tried by one court - non-certainty about who killed the deceased when deceased himself was found guilty of sec.324 of I.P.C. in counter case - change in place of occurrence - conviction is not safe - sessions court orders are set aside - Appeal was allowed =

CASE AND COUNTER CASE SHOULD BE DEALT BY ONE JUDGE = 
 The desirability of deciding the case and counter case by one and the same Court
was emphasized by the Supreme Court in its judgment in Sudhir v. State of M.P.1.
The following observation of the Supreme Court underlines the importance of the
case and the counter case being tried together.
        "It is a salutary practice, when two criminal cases relate to the same
incident, they are tried and disposed of by the same Court by pronouncing
judgments on the same day.  Such two different versions of the same incident
resulting in two criminal cases are compendiously called "case and counter case"
by some High Courts as "cross cases" by some other High Courts.  Way back in  
nineteen hundred and twenties a Division Bench of Madras High Court (Waller and
Cornish, JJ.) made a suggestion (In Re Goriparthi Krishtamma2) that "a case and
counter case arising out of the same affair should always, if practicable, be
tried by the same Court; and each party would represent themselves as having
been the innocent victims of the aggression of the other." =
WHO KILLED THE DECEASED IS DOUBTFUL - SECENE OF OFFENCE ALSO CHANGED - CASE AND COUNTER CASE GAVE DIFFERENT FINDINGS =
In C.C.No.271 of 1998, the
Court of the Judicial First Class Magistrate, Sullurpet, P.Ws.1, 2 and the
deceased herein figured as accused, and A1 herein as the complainant.  
Specific
finding was recorded to the effect that P.W.1 herein is guilty of the offence
punishable under Section 324 IPC for inflicting injuries on A1 herein.  In
relation to the same incident, the Sessions Court proceeded with the trial in
S.C.No.113 of 2000 and recorded exactly the opposite findings.
In this regard, our discussion
needs to be focused on two different aspects namely, the one in relation to the
offence punishable under Section 302 IPC and the other in relation to those
under Sections 148 and 324 IPC.  
Taking the second thing first, it may be noted
that when admittedly, it was a free for all fight between two groups, as is evident from the information elicited through P.W.11, there was no basis for invoking Section 148 IPC at all.  
Reference in this context can be made to the
judgments in Puran v. State of Rajasthan3 and State of Haryana v. Chandvir and
others4.  
While the first charge is exclusively for the offence punishable under
Section 148 IPC, the second one is for the offence under Section 307 read with
149 IPC. 
 To that extent, both the charges become untenable.  
Now it remains to
be seen as to how far the prosecution has proved the third charge in relation to
Section 302 IPC.
        There is serious dispute as to the very place of occurrence.  
While P.W.1
stated that the entire occurrence took in the house of A13, 
the evidence on
record, including that of P.W.11, coupled with the scene of offence panchanama
marked as Ex.P18 discloses that the dead body was found almost in front of the
house of the deceased.  
A clear finding was recorded in Ex.D4 that the entire
quarrel took place in front of the house of the deceased in this case. 
 Further,
a serious discrepancy exists as to who attacked the deceased.  The evidence of
P.W.1 is wavering.  
In addition to that, the deceased himself was accused of
attacking A1, and but for the fact that he died, he would have been open to the
Court of Judicial First Class Magistrate, Sullurpet to decide about his
involvement also.  
Another important aspect to be noted is that it was alleged
that accused Nos.6, 7 and 11 dealt blows on the deceased with iron rods whereas,
the post mortem report disclosed only two serious injuries.  Under these
circumstances, it cannot be said that the prosecution has proved its case that
the deceased was murdered by accused Nos.6, 7 and 11.   

For the foregoing reasons, the Criminal Appeal is allowed.  The conviction
and sentence recorded in S.C.No.113 of 2000 on the file of the I Additional
Sessions Judge, Nellore, dated 17.02.2006, against the appellants-Golla
Sankaraiah (A1) S/o.Kalappa, Golla Penchalaiah (A2) S/o.Kalappa, Golla Ravi
(A4), S/o.Kalappa, Karnati Ravi (A5) S/o.Venkatamuni, Nalliboina Raghavaiah
(A6), S/o.Veeraswami, Nalliboina Hari (A7) S/o.Raghavaiah, Golla Chandraiah (A8)
S/o.Polaiah, Golla Polaiah A(9) S/o.Nallaiah, Golla Subrahmanyam (A11)
S/o.Bathaiah, are set aside.  They shall be released forthwith, unless their
presence is required in any other case.


THE HON'BLE SRI JUSTICE B.PRAKASH RAO And *THE HON'BLE SRI JUSTICE L.NARASIMHA                
Criminal Appeal No.281 of 2006

21-02-2008

Golla Sankaraiah (A1), S/o.Kalappa and eight others.

The State of Andhra Pradesh, rep.by Public Prosecutor, High Court of A.P.,
Hyderabad.

COUNSEL FOR THE APPELLANTS: Sri C.Praveen Kumar.        

COUNSEL FOR RESPONDENT: Public Prosecutor.      

:JUDGMENT: (Per the Hon'ble Mr Justice L.Narasimha Reddy)  

        A1 to A13 were tried by the Court of the I Additional Sessions Judge,
Nellore, in Sessions Case No.113 of 2000 on several charges.  The case against
A3 and A10 abated on account of their death, during the pendency of the case.

First charge was against accused Nos.1, 2, 4 to 13 for the offence punishable
under Section 148 of the Indian Penal Code (IPC).  
Accused Nos.1, 2, 4 to 9 and
11 were found guilty of the said charge and they were sentenced to rigorous
imprisonment for one year.  Accused Nos.12 and 13 were acquitted of that charge.

Second charge was against accused Nos.1, 2, 4 to 13 for the offence punishable
under Section 307 read with 149 IPC for attempting to cause the death of P.W.1.
In the same charge, accused Nos.2 to 5, 7, 8, 11 and 12 were accused of causing
hurt to P.W.2.  
The trial Court found the said accused guilty of the offence
punishable under Section 324 IPC and imposed sentence of rigorous imprisonment  
for one year.  
The third and grave charge was against accused Nos.7, 8 and 11
for the offence punishable under Section 302 IPC.  
They were alleged to have
caused the death of Golla Subbaramaiah-the deceased.  
The trial Court convicted
and sentenced them to undergo imprisonment for life and to pay fine of
Rs.1,000/- each, in default, to suffer rigorous imprisonment for three months.
The sentences were directed to run concurrently.  
The appellants herein, who
figured as accused Nos.1, 2, 4 to 9 and 11, filed this appeal against the
judgment of the trial Court dated 17.02.2006.
        P.Ws.1 and 2 and the deceased are brothers.  P.W.3 is their nephew.
Accused Nos.1 to 4 are brothers.  There existed some disputes between the two
parties as regards access to the agricultural fields and residential houses.
Representations were submitted to the revenue authorities in this regard and
suggestions were said to have been given to the parties in the matter of
exercising their rights.
        On 11.06.1998, P.W.1 is said to have demanded A13 to pay Rs.10,000/-,
which was due to him.  The latter is said to have asked the former to come to
his house on the next day to collect the same.  P.W.1 is said to have called A13
at 9.30 a.m. on 12.06.1998.  Accused Nos.1 to 4 and 6 to 9 were said to have
come out of the house armed with weapons and when A1 tried to attack P.W.1, he
tried to ward-off and in the process, received blood injury in the lower lip.
Accused Nos.2, 3, 6 and 10 are said to have beaten him on the head with rods.
On hearing the cries of P.W.1, his brothers P.W.2 and the deceased are said to
have rushed to the scene.  Then, A8 is said to have given a blow with an iron
rod on the head of the deceased and when he fell down, accused Nos.6, 7 and 11
dealt further blows.  Accused Nos.7 and 11 are said to have attacked P.W.2 and
caused injuries on the right shoulder and head.  Accused Nos.6 and 12 are said
to have pelted stones against P.Ws.1, 2 and the deceased.  All of them were
shifted to the Government Hospital at Naidupet.
The police reached the scene of occurrence at about 11 a.m. on that day on
receiving information through V.H.F. set.  The complaint about the incident was
submitted by P.W.1 to the S.I. of Police, Pellakur.  F.I.R. was registered in
crime No.29 of 1998 on the basis of the same.  The injured persons were treated
in the hospital.
The deceased died three days after the incident, while
undergoing treatment.  
The provision in the F.I.R. was altered on account of the
death of the deceased.  Inquest and post mortem on the dead body were conducted  
and further investigation was taken up.  
Charges as mentioned above were framed.
All the accused pleaded not guilty.  The trial Court rendered its judgment,
finding that the various accused are guilty of different offences, and imposed
corresponding sentences.
        Sri C.Padmanabha Reddy, learned Senior Counsel, submits that
 admittedly an
altercation has taken place between the party of the deceased on the one hand,
and that of accused Nos.1 to 4 on the other hand, on 12.06.1998, and
even a case
and a counter case in the form of crime Nos.28 and 29 of 1998 were registered by
the police.
He submits that the prosecution did not render proper assistance to the trial Court inasmuch as no steps were taken to get both the cases tried together. 
 According to the learned Senior Counsel, a serious inconsistency came
into existence in the form of the judgment rendered by the Judicial First Class
Magistrate, Sullurpet in C.C.No.271 of 1998 dated 16.09.2002 marked as Ex.D4,
virtually, belying the charges in the initial case.
According to him, the
victims in one case were treated as accused in the other, on the same set of
facts.
It is pointed out that the deceased in this case figured as A2, in
C.C.No.271 of 1998.
He submits that it is just impossible to reconcile these
conflicting versions presented by the prosecution.
 It is also urged that the
evidence of P.Ws.1 and 2 is totally untrustworthy, in view of the fact that he
feigned total ignorance about the incident that gave rise to C.C.No.271 of 1998.
He contend, that the facts mentioned in Ex.P1 are totally at variance with the
evidence on record and even the investigating officers have admitted that there
are some inconsistencies.
Learned Senior Counsel further urges that in a case
of a free for all fight, the question of invoking Sections 148, 149 or 34 IPC
does not arise.
        Learned Additional Public Prosecutor, on the other hand, submits that the
mere fact that two different cases came to be registered in relation to the same
incident does not by itself render the judgment of the trial Court in this case
untenable, in any way.  He submits that while the charge in C.C.No.271 of 1998
is the one under Section 324 IPC, the charges in S.C.No.113 of 2000 ranges from
Sections 324 to 302 IPC.
        It has already been pointed out that P.Ws.1 and 2 are the brothers and
P.W.3 is the nephew of the deceased.  P.W.4 is the Panchayat Secretary in whose
presence certain arrangement was said to have been made between the parties, by
the revenue officials.  He stated that himself and the Sub Inspector of Police,
Pellakur, went to the place and came to know about the disputes between both the
parties about a path way and money.  He is a witness to the scene of offence
panchanama, marked as Ex.P3.  In cross examination of this witness, it was
elicited that the date on Ex.P3 was altered from 16.06.1998 to 12.06.1998.
P.W.5 is the doctor, who conducted post mortem of the deceased and the post
mortem certificate was marked as Ex.P9.  He noticed fourteen injuries on the
body of the deceased and opined that the death was due to injury No.1.  P.W.6 is
the Head Constable, who received intimation about the death of the deceased and
P.W.7 is the constable, who received the dead body and later, handed over the
same to the blood relations of the deceased.  P.W.8 is the Civil Assistant
Surgeon in the Area Hospital, who treated P.Ws.1 and 2 and issued wound
certificates-Exs.P11 and P12.  The Causality Medical Officer of Sri Venkateswara
Institute of Medical Sciences, Tirupati was examined as P.W.9.  The Sub
Inspector of Police, who received the information about the incident, was
examined as P.W.10.  P.W.11 is the Inspector of Police, who conducted
investigation.
        From the submissions made by the learned Additional Public Prosecutor, we
are of the view that the following questions arise for consideration.
1. Whether the same incident gave rise to a case, and counter case and if so, whether the procedure adopted by the prosecution has resulted in any anomalous situation.
2. Whether the evidence on record is sufficient to sustain the conviction against the appellants herein.
The police swung into action in relation to this case on receiving information
through the V.H.F. set.  The clear facts about the tussle or quarrel between the
parties were not known from the information.  P.W.1 submitted a complaint-Ex.P1,
stating that there existed some disputes between his family and that of A1,
leading to submissions of representations to the revenue authorities.  He
alleged that on 11.06.1998, he requested A13 to return the amount due to him and
thereupon, he was asked to come on the next day.  He further stated that when he
went to the house of A13 on the next day, he was attacked by several accused and
on hearing his cries; his brothers, P.W.2 and the deceased have come to his
rescue.  The accused are said to have attacked P.W.1 and his brothers.  Shorn of
further details, this is the summary of the complaint submitted by P.W.1.
Ex.P1 does not contain the time at which it was received by the police.
A close
scrutiny of the evidence of P.W.1 discloses that he was not certain about the
time of the occurrence or as to when he has submitted Ex.P1 to the police.  When
specific questions were put to him as to his involvement in a case registered at
the instance of A1, he pretended total ignorance.
In the complaint, apart from the names of A1 to A9 and A13, names of four women
were also mentioned.  In his cross examination, P.W.1 stated as under.
"I did not give the names of three ladies at the time of recording my report
(Ex.P1).  I do not know at whose instance, the names of Penchalamma, Ramanamma     
and Karnati Kondamma recorded in Ex.P1.  The three women mentioned above are the   
wives of accused Nos.1, 6 and 13 respectively."

He has also stated that he does not know whether he has mentioned the name of 
A13 in Ex.P1.  Some of inconsistency about the alleged involvement of accused
Nos.6, 7 and 11 was also elicited.  
It was suggested to him that Ex.P1 was
prepared during night at Tirupati after prolonged discussions.
The record discloses that a serious incident of quarrel between two parties has
taken place in the village at 9.30 a.m. on 12.06.1998.  A1 herein submitted a
complaint to the police, stating that he was attacked by P.Ws.1 to 3 and the
deceased in this case.  F.I.R was registered for the offence under Section 324
IPC in crime No.28 of 1998 in the same Police Station.  Sometime thereafter,
Ex.P1 herein was submitted and on the basis of the same, crime No.29 of 1998 was
registered.  While crime No.28 of 1998 gave rise to C.C.No.271 of 1998 on the
file of the Judicial First Class Magistrate, Sullurpet, crime No.29 of 1998
resulted in S.C.No.113 of 2000 on the file of the I Additional Sessions Judge,
Nellore.  Though P.W.1 pleaded ignorance about his figuring as accused in
C.C.No.271 of 1998, the judgment rendered in that case marked as Ex.D4 clearly
discloses that he did not speak truth.
Further, certain important information
was elicited through P.W.11, the Investigating Officer.
 It is relevant to
extract the same.
"Crime Nos.28 and 29 of 1998 of Pellakur P.S. are cases and counters.  
The
present case relates to crime No.29 of 1998.  
A1 herein is complainant in crime
No.28 of 1998.  
Case and counter case means regarding one incident two reports
are given with two different versions.  
The accused in 28 of 1998 are witnesses
in crime No.29 of 1998 (S.C.No.113 of 2000) and the accused in crime No.28 of
1998 are witnesses in crime No.29 of 1998.  
The incident in both the cases had
taken place on 12.06.1998 at the same place and time. 
 If the investigation
officer comes to a conclusion, it is a free fight between both the parties, then
in a case and a counter case both the parties will be charge sheeted."

From this, it becomes clear that the same incident gave rise to crime Nos.28 and
29 of 1998 of Pellakur Police Station.
The inescapable conclusion is that both
of them constitute a case and counter case.
The desirability of deciding the case and counter case by one and the same Court
was emphasized by the Supreme Court in its judgment in Sudhir v. State of M.P.1.
The following observation of the Supreme Court underlines the importance of the
case and the counter case being tried together.
        "It is a salutary practice, when two criminal cases relate to the same
incident, they are tried and disposed of by the same Court by pronouncing
judgments on the same day.  Such two different versions of the same incident
resulting in two criminal cases are compendiously called "case and counter case"
by some High Courts as "cross cases" by some other High Courts.  Way back in  
nineteen hundred and twenties a Division Bench of Madras High Court (Waller and
Cornish, JJ.) made a suggestion (In Re Goriparthi Krishtamma2) that "a case and
counter case arising out of the same affair should always, if practicable, be
tried by the same Court; and each party would represent themselves as having
been the innocent victims of the aggression of the other."

        The principle underlying such a requirement is not difficult to discern.
It needs to be noted that when a case and a counter case are filed in relation
to an incident, same individuals answer the description of victims in one case,
and of accused, in another case.  Whatever be the permissibility of the same
individual playing the role of a plaintiff and defendant in the suits filed in
relation to the same subject matter, almost irreconcilable situations emerge
when they figure as victims and culprits, in relation to one and the same
incident, in two different cases.
The necessity to try such cases together is so imminent that any lapse in this
regard is likely to give rise to disastrous results.  In C.C.No.271 of 1998, the
Court of the Judicial First Class Magistrate, Sullurpet, P.Ws.1, 2 and the
deceased herein figured as accused, and A1 herein as the complainant.  
Specific
finding was recorded to the effect that P.W.1 herein is guilty of the offence
punishable under Section 324 IPC for inflicting injuries on A1 herein.  In
relation to the same incident, the Sessions Court proceeded with the trial in
S.C.No.113 of 2000 and recorded exactly the opposite findings.
A serious lapse
has taken place on the part of the prosecution, if not, the Courts referred to
above, in not ensuring that both the cases are tried together.
We find
ourselves in a precarious condition on the one hand, we cannot ignore the
findings recorded in Ex.D4 in this case i.e., judgment in C.C.No.271 of 1998,
and on the other hand, cannot put a seal of approval on the findings recorded by
the Court of Sessions in S.C.No.113 of 2000.
Inasmuch as the judgment in
C.C.No.271 of 1998 has become final, there is no way, we can ignore the findings
therein whereas the findings in S.C.No.113 of 2000, are at large.
        Now comes the second question.
 Notwithstanding the typical situation
referred to above, there must not be any difficulty in sustaining conviction if
the evidence on record in this case warrants it.  
In this regard, our discussion
needs to be focused on two different aspects namely, the one in relation to the
offence punishable under Section 302 IPC and the other in relation to those
under Sections 148 and 324 IPC.  
Taking the second thing first, it may be noted
that when admittedly, it was a free for all fight between two groups, as is evident from the information elicited through P.W.11, there was no basis for invoking Section 148 IPC at all.  
Reference in this context can be made to the
judgments in Puran v. State of Rajasthan3 and State of Haryana v. Chandvir and
others4.
While the first charge is exclusively for the offence punishable under
Section 148 IPC, the second one is for the offence under Section 307 read with
149 IPC. 
 To that extent, both the charges become untenable.  
Now it remains to
be seen as to how far the prosecution has proved the third charge in relation to
Section 302 IPC.
        There is serious dispute as to the very place of occurrence.
While P.W.1
stated that the entire occurrence took in the house of A13, the evidence on
record, including that of P.W.11, coupled with the scene of offence panchanama
marked as Ex.P18 discloses that the dead body was found almost in front of the
house of the deceased. 
 A clear finding was recorded in Ex.D4 that the entire
quarrel took place in front of the house of the deceased in this case. 
 Further,
a serious discrepancy exists as to who attacked the deceased.  The evidence of
P.W.1 is wavering.  
In addition to that, the deceased himself was accused of
attacking A1, and but for the fact that he died, he would have been open to the
Court of Judicial First Class Magistrate, Sullurpet to decide about his
involvement also.  
Another important aspect to be noted is that it was alleged
that accused Nos.6, 7 and 11 dealt blows on the deceased with iron rods whereas,
the post mortem report disclosed only two serious injuries.  Under these
circumstances, it cannot be said that the prosecution has proved its case that
the deceased was murdered by accused Nos.6, 7 and 11.   
        For the foregoing reasons, the Criminal Appeal is allowed.  The conviction
and sentence recorded in S.C.No.113 of 2000 on the file of the I Additional
Sessions Judge, Nellore, dated 17.02.2006, against the appellants-Golla
Sankaraiah (A1) S/o.Kalappa, Golla Penchalaiah (A2) S/o.Kalappa, Golla Ravi
(A4), S/o.Kalappa, Karnati Ravi (A5) S/o.Venkatamuni, Nalliboina Raghavaiah
(A6), S/o.Veeraswami, Nalliboina Hari (A7) S/o.Raghavaiah, Golla Chandraiah (A8)
S/o.Polaiah, Golla Polaiah A(9) S/o.Nallaiah, Golla Subrahmanyam (A11)
S/o.Bathaiah, are set aside.  They shall be released forthwith, unless their
presence is required in any other case.

?1 2001 (2) ALT (Crl.) 79 (SC)
2 1929 Madras Weekly Notes 881  
3 AIR 1976 SC 912
4 1996 SCC (Crl.) 728


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