THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 410 of 2009 Date:08.02.2010 Between: Suda Ankamma Rao and four others …Appellants And The State of A.P. represented by S.H.O.,Ponnur Rural Police Station, Guntur …Respondent THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 410 of 2009 JUDGMENT: (Per Hon'ble Sri Justice R.Kantha Rao,J) This appeal is directed against the judgment, dated 18.03.2009 in S.C.No.411 of 2004 passed by the V Additional Sessions Judge (Fast Track Court), Guntur whereby and whereunder the appellants-accused Nos.3, 4, 6, 7, and 8 were convicted for the offence under Section 302 read with 149 of Indian Penal Code (for brevity “IPC”) and were sentenced to undergo imprisonment for life and to pay fine of Rs.500/-. They however, were also convicted for the offence under Section 148 of IPC and were sentenced to undergo rigorous imprisonment for two years. Both the substantive sentences were directed to run concurrently. 2. In all (8) accused were put up for trial before the learned Additional Sessions Judge. But, before the commencement of the trial, A-1, A-2, and A-5 were allegedly murdered by prosecution party and the case against them was abated. Against the surviving accused who are the appellants herein, charges under Sections 148, 302 r/w 34 of IPC and 302 r/w 149 of IPC were framed and they were tried for the said charges. Ultimately, at the conclusion of the trial, the learned trial Court convicted and sentenced the appellants for punishment as mentioned above. Being aggrieved, the appellants preferred the present appeal. 3. Briefly stated, the prosecution case is as follows: There was longstanding enmity between the prosecution party and the accused. Several incidents involving criminal offences between both the parties who represent two political parties occurred and the cases were also filed by the police in respect of the said offences. On 28.08.2002 the police officers held ‘Maithri Sadassu’ in Vellaluru village, in the course of which, the accused group reported about raising of cattle shed by LW-5 (Samarouthu Lakshmi Narasimha Rao) on the tank bund in Vellaluru village. Whereas the prosecution party complained about A-3 and another encroaching the site belonging to Roads and Buildings department raising thatched house and transacting liquor business from there. The situation, thus, led to quarrel between both the groups. PW- 13, the Sub-Inspector of Police who was present, instructed both the groups to remove the structures. In view of the said incident, the accused party developed grouse against the deceased and his brother and to exhibit their supremacy in the village, they decided to do away with the deceased and his brother and hatched up a plan to achieve the said object. 4. On 07.02.2003 while the deceased was returning along with PWs.1 and 3 after spraying pesticide to the black-gram crop in the land which the deceased obtained on lease from PW-7 for cultivation. The accused formed themselves into unlawful assembly, arming with deadly weapons like axes and spears, waylaid near harijanawada Donka on the outskirts of Vellalur village, attacked the deceased and caused injuries with deadly weapons in their hands in prosecution of their common object to kill him. The deceased fell down with severe bleedings injuries. Thereafter, thinking that the deceased died, the accused fled away from that place. PWs.1 to 4 witnessed the incident, and out of fear, they rushed to the village and informed the incident to Samarouthu Lakshminarasimha Rao (LW-5), PWs.5, 6 and some other villagers and they found the deceased lying with injuries in the black-gram field of Pakanati Ramarao. On being questioned, the deceased narrated the incident to Samarouthu Lakshminarasimha Rao (LW-5). The deceased was brought to his house and from there to Government Hospital, Ponnur where the Medical Officer examined him and declared him dead. He sent the death intimation to the Station House Officer, Rural Police Station, Ponnur. PW-3 also went to the police station and presented a written report to PW-12, the Sub-Inspector of Police and on the strength of the said report, he registered a case in Crime No.8 of 2003 of Ponnur Police Station. PW-14, the Inspector of Police investigated into the offence and after completing investigation, he filed charge sheet. 5. The prosecution in order to prove the guilt of the accused before the trial Court, examined PWs.1 to 14, marked Exs.P-1 to P-11 and M.Os.1 to 13. Accused did not propose to examine any defence witness, but they marked Exs.D-1 to D-3. The learned trial Court, on appraisal of the entire evidence on record, held that the appellants were guilty of offences punishable under Sections 148, 302 r/w 149 of IPC, convicted them for the said offences and sentenced them to undergo punishment as indicated above. 6. We have heard Sri M.N.Narasimha Reddy, learned counsel appearing for the appellants and the learned Public Prosecutor representing the State. 7. Among the witnesses, PW-1 is the daughter of the deceased, PW-3 is the son of the deceased. According to the prosecution, both these witnesses were coming along with the deceased after spraying pesticide to the black-gram crop at the time when the incident took place. PW-2 is the brother’s wife of the deceased. PW-4 is the sister of the deceased. Thus, all the eyewitnesses to the occurrence are closely related to the deceased. In view of the faction between both the families, they are also inimical to the accused. PW-2 claims to have witnessed the incident while working in their blackgram field. Similarly, PW-4 also claims to have witnessed the incident while working in the nearby field. 8. PWs.1 and 3 stated in their depositions before the trial Court that when they and the deceased reached the land of Rachapudi Sambasiva Rao, all the accused came out from the land with spears and axes and on seeing the accused, the deceased started running away, the accused chased him up to a distance of 100 yards, caught hold of him, A-1 hacked him with axe on his head, A-2 speared on left side of the waist, A-1 again beat him with axe on the left side of the head, A-3, A-5, A-7 and A-8 on his back, A-4 and A-6 hacked him with axes indiscriminately on the legs and hands, due to which he fell down. 9. PW-2 stated in her deposition that while she was working in the black-gram field, he heard some cries from the field of Bollemunta Rama Rao. She saw the deceased running and the accused chasing him, the accused hacked the deceased with axes and speared him and went away. She also found PWs.1 and 3 running and thereafter, she went to her house. PW-4 also deposed before the trial Court that while she was working in her field, she saw the deceased running towards eastern side and when he reached the land of P.Rama Rao, all the accused surrounded him and due to fear, she ran away towards her house and she also found PWs.1 and 3 going ahead of her. Both the witnesses also stated that after going to the village, they informed their people and again came back to the place of occurrence where they found the deceased lying dead. Dr.P.Samuel (LW-17) is the doctor who conducted post mortem examination on the body of the deceased and the prosecution due to his non-availability, examined PW-10, his colleague and marked Ex.P-7 post mortem report through him. Dr.P.Samuel (LW-17) mentioned the following injuries in Ex.P-7 post mortem report issued by him: 1) A lacerated injury of 6 cm x 1 cm and bony deep with black margins over the left parietal region of the head. 2) A lacerated with black margins injury of 6 cm x 1 cm x 1 cm below the left temporal region of the head. 3) A lacerated injury of 6 cm x 2 cm into muscle deep over the back of upper 1/3rd of left forearm. 4) A lacerated injury of 2 cm x 2 cm into muscle deep over the back of middle of the left forearm. 5) A lacerated with black margins injury of 4 cm x 1 cm into muscle deep over the front of middle 1/3rd of left lower leg. 6) A stab injury with clean cut margins of 6 cm x 2 cm deep into the pelvic cavity of the left back of the abdomen at the level of renal angle. 7) An oblique incised injuries one below the other 5 in numbers with clean cu margins near the spinal column measuring 4 cm x 2 cm muscle deep below the injury No.6 over the back of the abdomen. 10. PW-7 (G.Durga Sivarama Prasad) from whom according to the prosecution the deceased obtained the land on lease for cultivation, did not support the prosecution version. PW-8 (Dokiparthi Bhavana Rushi) is the mediator present at the inquest as well as at the time when the police observing the scene of offence. PW-9 (Kundeti Nagesha) is another mediator. According to the prosecution the weapons of offence viz. M.Os.6 to 13 containing blood stains were seized in pursuance of the disclosure statement made by the appellants. This witness supported the prosecution version. 11. The Learned trial Court recorded a conviction taking into consideration the evidence of PWs.1 to 4 in their examination-in-chief and adopted the reasoning that merely because the witnesses are interested, their testimony cannot be rejected. There is no dispute about the principle that the evidence of interested witnesses can be accepted to convict the accused without corroboration from independent source. But, the crucial question is whether the evidence taken as a whole, inspires confidence of the Court and the presence of the witnesses at the place of occurrence at relevant time as stated by them is natural and whether the entire situation reveals that there was such possibility for their witnessing the incident as claimed by them. Therefore, the veracity of the witnesses has to be decided basing on the probability factor irrespective of the fact whether the witnesses are interested or independent. However, when the witnesses are closely related among themselves and are also inimically disposed towards the accused, their testimony has to be examined with great care and circumspection. If the evidence in spite of thorough scrutiny inspires the confidence of the Court, there is no legal impediment to record a conviction basing on the testimony of the interested witnesses. 12. As admitted by PW-3 in the cross-examination all the accused persons are either the sons of Suda Venkatappayya or his grandsons. There is a faction between the prosecution party and the accused and several incidents involving the charges of murder took place and cases were also filed by the police. PW-3 who lodged the F.I.R. admitted in his cross-examination that he gave report against all the accused in this case and ten others with regard to the murder of Thirupathi Rao (LW-6) and Sivasankararao and he gave evidence in that case and the case ended in acquittal. He also admitted in the cross- examination that he is an accused in the murder cases of A-1 and A-5 and one Bachu Srinivas. The said case ended in conviction and the appeal is pending. PW-3 at the time of his giving evidence was in jail in connection with the said cases, as per his own version. He also admitted in the cross-examination that LWs.5 and 7 in the present case were also accused in the murder case of A-1, A-5 and Bachu Srinivas and they are also in jail. PW-3, the main witness who is no other than the son of the deceased, thus, is an informant in another murder case and also figured as accused in some other murder cases whereas the deceased belong to the party of the accused. In view of the long standing enmity between both the families, the evidence of PW-3 as well as the other alleged eyewitnesses viz. PWs.1, 2 and 4 has to be subjected to severe scrutiny. 13. The defence theory is that PWs.1 to 4 actually were not present at the place where the offence was committed and only after knowing about the existence of the dead body of his father, PW-1 lodged a report with the police. He gave the names of the accused due to enmity between both the families. There is no dispute about the fact that the incident did not occur in the land of the deceased or PW-3. The prosecution story is that the deceased obtained a piece of land from PW- 7 on lease and raised black-gram crop in the said land and while returning from the land after spraying pesticide, the incident took place. However, PW-3 stated in his police statement that he took the land at Thotapalem village on lease and raised the black-gram crop on his own and the said statement is marked as Ex.D-1. He also admitted in the cross-examination that they do not have any agricultural implements for cultivation. Therefore, it is not understandable as to why they obtained the land on lease from PW-7 and also it creates a doubt, whether, in fact, they cultivated the said land as tenants. 14. PW-3 further admitted in the cross-examination that insecticide is sprayed with power sprayers for which purpose the water has to be filled up from out of a container. Curiously, he stated that they did not take the buckets, pots or power sprayer with them. 15. It is his evidence that he first informed the incident to the Sub-Inspector of Police and the Sub-Inspector of Police asked him to give a written report and then he got drafted through somebody and presented it before the Sub-Inspector of Police. He also admitted in the cross-examination that the scribe of the report did not read over the contents to him. PW-3 studied up to 10th class and he himself can write the report, but it is not explained as to why he got drafted through some other person. PW-3 stated in the cross-examination that he does not know the name of the scribe or his identity. The said scribe was not examined by the police. Thus, it creates a doubt about the authenticity of the F.I.R. allegedly lodged by PW-3. 16. Another important factor which requires consideration is that PW-3 was also examined as witness at the time of inquest along with PW-1 and others. Therefore, the contents of the inquest report must be based on the version of the eyewitnesses at the inquest. Though the basic purpose of the inquest report is to know the cause of death, the recitals made in the inquest report basing on the version of the eyewitnesses cannot be totally ignored. When such particulars mentioned in the inquest report vary from the basic version of the prosecution story, more particularly, with regard to the actual persons participated in the attack, the said fact cannot be totally overlooked. In column No.11 of the inquest report, it is specifically mentioned that due to previous grudges, all the accused (A-1 to A-8) and some other villagers of Vellaluru village arming with spears waylaid in the jute field of Bollimuntha Rama Rao and they at once came out of the field at about 1730 hours, attacked the deceased. Therefore, the inquest report which is based on the account of the eyewitnesses is specific on the aspect that apart from the accused, some other villagers of Vellalur participated in the attack. Absolutely the investigating officer did not offer any explanation as to why he omitted the other persons from being charge sheeted. This creates any amount of doubt, more particularly, in view of the fact that the accused are none other than the sons and grandsons of Suda Venkatappayya, they only attacked the deceased and some other persons also participated in the attack and why the reference of other persons of Vellalur village arming with spears is not found in Ex.P-1 report allegedly lodged by PW-3. This leads to uncertainty regarding the core issue as to who in fact participated in the attack and also whether the inquest report is in earlier point of time or the F.I.R. Thus, mentioning about the participation of some more persons in the column No.11 of the inquest report cannot be slightly overlooked and it is a crucial aspect in testing the veracity of the eyewitnesses in this case. 17. As per the prosecution version, there is no document evidencing the lease between the deceased and PW-7. PW-7 did not support the prosecution version and according to him, he did not lease out the land to the deceased or PW-3. The prosecution did not examine any neighbouring land owners to prove that the family of the deceased was cultivating the land of PW-7 on lease at the time of the incident. The version of PW-3 which is referred above also creates any amount of doubt whether he or the deceased cultivating the land of PW-7 on lease as tenants. His evidence also does not create any confidence in regard to the fact that actually on the date of the incident, he, PW-1 and the deceased went to the field for spraying pesticide. Absolutely, there is no investigation on the aspect as to whether pesticide was actually sprayed in the said land belonging to PW-7. The police did not seize any implements used for spraying pesticide. Further, according to prosecution, the deceased on being questioned by LW-5 (Somarouthu Lakshminarasimha Rao) informed him about the attack made on him. What all stated to LW-5 (Somarouthu Lakshminarasimha Rao) by the deceased after the death of the deceased is admissible regarding the cause of death of the deceased. But, the prosecution did not choose to examine LW-5. Moreover, PW-3 admitted in his cross-examination that he did not state before the police that the deceased stated the details of the incident to LW-5 (Somarouthu Lakshminarasimha Rao). 18. Another important aspect which has to be noticed is that admittedly PWs.2 and 4 were not at all present at the actual place of the occurrence along with the deceased, and PWs.1 and 3. They claimed to have witnessed the incident by working in their own fields situate nearby and they witnessed the incident from a distance. According to them, they saw the accused leaving the place of occurrence after the deceased fell down with injuries and PWs.1 and 3 also proceeding towards the village. Since the accused, and PWs.1 and 3 left the place of occurrence, the natural course of conduct of PWs.2 and 4 would be to go and see the condition of the deceased. But curiously, they stated that they did not go near the place where the deceased was lying with injuries, in spite of their close relationship with the deceased and they also proceeded towards the village. The conduct of PWs.2 and 4, therefore, can be said to be unusual and it renders assurance to the defence version that the eyewitnesses in this case are planted by the prosecution, even though they were not in fact present at the place of occurrence. 19. The attack was allegedly with axes and spears. But injuries 1 to 5 found on the person of the deceased are lacerated injuries. These injuries as rightly contended by the learned counsel appearing for the appellants, cannot be caused either with axe or spear. As per the version of the eyewitnesses PWs.1 and 3 those injuries were caused with axes. If the injuries were caused with axes, they must be incised or cut injuries. Thus, the medical evidence also comes into conflict with oral evidence and the prosecution without assigning any convincing reasons, did not examine LW-17 who conducted post mortem examination to explain the nature of the injuries found on the body of the deceased, but, only marked the post mortem report issued by LW-17 (Dr.B.Samuel) through PW-10 who is his colleague. This also can be considered as a lapse on the part of the prosecution to explain the injuries found on the body of the deceased with reference to the weapons with which the deceased was allegedly attacked. 20. Yet, another important fact which cannot be overlooked while appreciating the evidence or eyewitnesses is that PW-3 is an accused in several murder cases where the deceased belong to the opposite group. The main target of accused in the present case, therefore, naturally would be PW-3, but not the deceased. In any event, when PW-3 was also present along with the deceased, it is quite unusual that the accused persons would leave PW-3 without attacking him, even though very much vulnerable for the attack. This feature of the prosecution story casts any amount of doubt as to the presence of PW-3 at the place of occurrence at relevant point of time. 21. For the reasons aforementioned, in our considered view, it is quite unsafe to place reliance on the testimony of PWs.1 to 4 to base a conviction. The possibility of PWs.1 to 4 being planted by the prosecution for the purpose of the present case, as eyewitnesses, cannot be ruled out. The evidence of PWs.1 to 4 for the reasons stated hereinbefore does not inspire confidence and the learned trial Court ought not to have placed reliance on their evidence to base a conviction. The conviction is therefore liable to be set aside in this appeal. 22. In the result, the criminal appeal is allowed setting aside the conviction and sentence recorded against the appellants-Accused Nos.3, 4, 6, 7 and 8 through the impugned judgment, dated 18.03.2009 in Sessions Case No.411 of 2004, passed by the V Additional District and Sessions Judge (F.T.C.), Guntur and the appellant-Accused Nos.3, 4, 6, 7 and 8 are acquitted of the offences with which they were charged and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. ____________ D.S.R.VARMA,J _______________ Date:08.02.2010. R. KANTHA RAO, J CCM/msr THE HON’BLE MR JUSTICE D.S.R. VARMA AND THE HON’BLE MR JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO. 410 of 2009 (Per Hon’ble Sri Justice R. Kantha Rao, J) Date:08.02.2010