THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1535 of 2007 Date of Judgment: 14-07-2011 Between: The State of A.P. rep. by public prosecutor, High Court of A.P., Hyderabad. ..Petitioner and Velpula Lachaiah @ Laxman ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.1535 of 2007 Oral Judgment: (Per Hon’ble Sri Justice Raja Elango) 1. This appeal is filed by the State through Public Prosecutor against the order of the III Additional Sessions Judge (FTC), Asifabad in S.C.No.258 of 2005, dated 29-08-2006 acquitting the accused of the charge. 2. The case of the prosecution as unfolded during the course of trial may, briefly, be stated as under: The marriage between the accused and Vemula Mamtha Rajeshwari (hereafter referred to as “the deceased) took place eight years prior to the incident. During their wedlock they blessed with one son and daughter. For about three years they lived happily. Thereafter, suspecting the fidelity of the deceased the accused started harassing her. Unable to bear the torture in the hands of the accused, deceased along with her two children went to her parents’ house at Kankur village. Three months thereafter the accused took the elders and went to the parents of the deceased. The elders advised the accused not to ill-treat the deceased and convinced the mother of the deceased—P.W.2. The accused assured the parents of the deceased that he would not ill treat her. Believing the words of the accused, the parents of the deceased sent her to the marital home. On the intervening night of 17/18-08-2004 accused got up to answer the calls of nature; he saw the deceased with one Shankar in compromising position. On seeing the accused, the said Shankar ran away; then the accused strangulated the deceased with saree—M.O.7, cut the deceased with vegetable cutter—M.O.2 and hit her head with cement brick—M.O.1. The son of the accused and deceased—P.W.5 woke up and witnessed the incident. Immediately P.W.5 went to the house of P.W.7 and informed him about the incident. Then P.Ws.7, 6, 10 and 11 rushed to the house of the accused and saw the deceased lying dead. They detained the accused by suspecting that he might have killed the deceased. Then P.W.6 went to the village where the parents of the deceased live and informed them about the incident. On coming to know of the same, P.W.1—brother, P.W.2—mother and P.W.3—sister in law came to the house of the accused and saw the deceased lying dead in front of the house. On receipt of telephonic message that the accused killed the deceased, P.W.21—Sub-Inspector of Police rushed to the place of incident, where P.W.1—brother of the deceased presented compliant—Ex.P1; made endorsement and sent the same to the police station. Basing on the said compliant P.W.20, Assistant Sub-Inspector of Police registered a case in Cr.No.119/2004 under Section 302 IPC and issued Ex.P15—FIR. P.W.22—Circle Inspector of Police, who took further investigation visited the scene of offence; examined the witnesses and recorded their statements; held inquest over the dead body of the deceased; sent the dead body for post- mortem examination. The doctor—P.W.18 who conducted post mortem examination over the dead body of the deceased opined that the cause of death is compression of neck due to strangulation. On 04-09-2004, the accused surrendered before P.W.22 and accused was interrogated in the presence of P.Ws.13 and 19 where the accused confessed to have committed the offence. Basing on the confessional statement of the accused, M.O.7—saree with which the accused strangulated the deceased was recovered. After completion of investigation and after receipt of relevant documents, he laid the charge sheet. 3. To bring home the guilt of the accused the prosecution examined as many as 22 witnesses, got marked 16 documents— Exs.P1 to P16 and exhibited M.Os.1 to 7. On behalf of defence portion of 161 Cr.P.C. statement of P.W.11 was marked as Ex.D1. 4. P.Ws.8, 9 and 17 did not support the case of the prosecution and declared hostile. The plea of the accused is of total denial. 5. P.W.1 is the person who sets the criminal law into motion. He lodged the compliant before the police on the basis of information received by him, in which he stated that on the fateful day the appellant/accused caused the death of the deceased by strangulation with saree. P.W.2 is the mother of the deceased. She was silent about the incident. P.W.3 who is also not an eye witness to the occurrence stated that on receiving information, he reached the place of occurrence where he saw the dead body of the deceased; the neighbours informed that the accused caused the death of the deceased by causing injuries and thereafter strangulated the dead body with saree. P.W.4 who also deposed on the same lines is not an eye witness. On receiving information he went to the house of the accused where he witnessed the dead body of the deceased. 6. P.W.5 is the eye witness. According to prosecution, he is aged 5 years on the date of examination. At the time of occurrence, the said witness was aged about 3 years 10 months. The learned Sessions Judge after putting some preliminary questions satisfied that the boy is capable of answering the questions and examined him. In his examination the said witness stated that the appellant/accused killed the deceased and hanged with the help of saree. He also informed that he told the entire incident to the neighbours. 7. P.W.6 is the person who also reached the place of occurrence and saw the dead body of the deceased and also the accused. According to the said witness, he along with others caught hold the accused and tide in the place of occurrence. P.W.7 also deposed on the same lines that he reached the place of occurrence, saw the deceased and accused, caught hold the accused and tide him on the date of incident i.e. 18-08-2004. 8. P.Ws.8 and 9 who are neighbours of the accused have not supported the case of the prosecution and declared hostile. 9. P.W.10 who is not an eye witness to the incident also stated that he learnt through others that the accused killed the deceased by cutting her neck with vegetable cutter—M.O.2. 10. P.W.11 is not an eye witness to the incident also stated that he is a resident of Ponnaram village; on receipt of information he went to the house of the accused and saw the dead body of the deceased in the place of occurrence. 11. P.W.12 is a private photographer who took photographs of the dead body of the deceased. 12. P.W.13 is the Sarpanch of the village, who stated that he is the panch witness to the inquest report—Ex.P9 and also witness to the recovery of vegetable cutter—M.O.2, blood stained earth—M.O.3, control earth—M.O.4, blood stained white colour petti coat—M.O.5 and maroon colour blouse—M.O.6. He also gave his opinion in the inquest report that death was caused by the accused/appellant. 13. P.W.14 is the videographer and on the request of CI he went to the place videographed the entire place. 14. P.W.15 is related to the accused. He also stated that he went to the place of occurrence on information given by the accused that he killed the deceased. Further, he stated that they detained the accused and tide him in the house. 15. P.W.16 is the resident of Ponnaram village. He stated that in his presence the police held inquest and he also signed in the inquest panchanama. 16. P.W.17 a member of Gram Panchayat stated that on the call of S.I. of Police, he went to the police station where the accused was interrogated by the police officials. There the accused stated that he received injuries to left eye and also forehead when he was caught hold by the basti people; and the accused also stated that suspecting the character of the deceased he killed her. This witness has not stated on what date he went to the police station. 17. P.W.18 is the Civil Assistant Surgeon who conducted autopsy over the dead body of the deceased found the following injuries. 1. Legature marks 1/2 inch in width present around neck in the middle. Reddish black in colour. Two marks of legature present on left side. Subjacent tissues are haemorrhaged. Haematomas present on upper part of neck. Hyoid bone fractured on both sides and fracture ends are bent inwards, thyroid cartilage fractures into many pieces. 2. Lacerated wound 5 inches in length over right temporal area subaporenutice haemorrhage present on both temporal areas and fantail areas right temporal bone fractured. He opined that cause of death was compression of neck due to strangulation. Ex.P12 is the post-mortem examination report. 18. P.W19 who is the resident of Ramakrishnapur village stated that he is a Registered Medical Practitioner and police have recorded the confessional statement of the accused and the same is marked as Ex.P13. According to him, accused is responsible for commission of the offence. 19. P.W.20 is the Assistant Sub-Inspector of Police, Ramakrishnapur Police Station; on requisition made by Sub-Inspector of Police—P.W.22, he registered a case in Cr.No.119 of 2004 under Section 302 IPC and issued Ex.P15—FIR. 20. P.W.21 is the Sub-Inspector of Police. On receipt of telephonic information that the accused killed the deceased he informed the same to the superior officers; rushed to the place of occurrence; where he received the compliant—Ex.P1; he made an endorsement on the complaint and sent it to the police station for registering the case. Accordingly, P.W.20 registered the case and sent back to him; P.W.22—CI of police came to the place of occurrence; then he handed over the case file to him. 21. P.W.22, Circle Inspector of police stated that on receipt of information from P.W.21—SI of police, he went to the place of occurrence; recorded the evidence of witnesses; collected material objects and sent them to FSL; conducted inquest over the dead body of the deceased. According to him, accused was surrendered before him on 04-09-2004; immediately he secured the presence of P.Ws.17 and 19 and recorded the confessional statement of the accused in the presence of said witness and after completion of investigation he filed the charge sheet. 22. On the basis of above said evidence adduced by the prosecution, the learned sessions judge disbelieved the evidence of P.W.5, who is an eye witness, and also disbelieved the case of the prosecution and acquitted the accused. Against which the State preferred the present appeal. 23. Learned Public Prosecutor contended that P.W.5 is an eye witness to the incident; therefore, the lower court should have believed the evidence of the said witness and convicted the accused and the judgment of the trial court is liable to set aside. 24. Learned counsel for the respondent/accused submitted that entire evidence of the prosecution is inconsistent and there are discrepancies particularly arrest of the accused. 25. As observed by the learned Sessions Judge, P.W.5 is aged about 5 years at the time of examination before the Court whose age is 3 ½ years at the time of occurrence. Even assuming that a child is able to give evidence before the Court regarding the occurrence of offence, the police are duty bound to verify whether it is proper for a child of 3½ years witnessing the incident that too on the date of offence there is no electricity in the particular point of time. Further, this witness also admits that he was in maternal grand mother’s house ever since the date of occurrence. Apart from the same, there are discrepancies with regard to presence of the accused in the place of occurrence. 26. According to the evidence of P.Ws.6 and 7, the accused was caught red handedly in the place of occurrence and tide; whereas as per the evidence of Investigating Officer—P.W.22, the accused surrendered before him in the police station on 04-09-2004. If the version of Investigating Officer is taken into consideration, the version of P.Ws.6 and 7 that the accused was present in the scene of offence cannot be appreciated. Further, even according to the evidence of P.W.15, the Sarpanch of the village was also present at the time of his visiting the place of occurrence, where he saw the accused and he tide the accused suspecting that he is responsible for commission of the offence. Whereas the Sarpanch—P.W.13 has not stated regarding the presence of the accused in the place of occurrence. 27. From the evidence adduced by the prosecution, more particularly, the evidence of Investigating Officer—P.W.22 that the accused surrendered on 04-09-2004 totally falsifies the evidence of other witness that they saw the accused at the place of occurrence. 28. Taking into consideration the said discrepancies the learned Sessions Judge acquitted the accused extending benefit of doubt. It is settled proposition of law that when appeal against acquittal is filed, if two views are possible, one view is given in favour of the accused, there is no necessity for the appellate court to interfere with the judgment of the trial court. Hence, we are not inclined to interfere with the judgment and order passed by the learned Sessions Judge. 29. The Criminal Appeal is accordingly dismissed. _________________ A.GOPAL REDDY, J. _____________ RAJA ELANGO,J. 14-07-2011 Murthy