IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH AT HYDERABAD. Dated: December 22, 2010. Present: The Hon’ble Sri Justice V. Eswaraiah And Hon’ble Sri Justice P. Swaroop Reddy Crl.A.No. 89 of 2008 Between: The State of Andhra Pradesh Represented by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant And Jonnalagadda Suguna Rao ..Respondent VE & PSR, JJ. Crl.A.No. 89 of 2008 Judgment (Per P. Swaroop Reddy, J.) This appeal is filed against the judgment of the learned IV Additional Sessions Judge (FTC), Ongole in S.C.No. 68 of 2004. The State is the appellant herein. For the sake of convenience, the parties herein would be referred to as they are arrayed before the trial court. 2. The prosecution case is that the accused is the husband of the deceased, Jonnalagadda Rangamma. PW-1, Mondithoka Yakob is the brother and PW-2, M. Subbulu is the mother of the deceased. The accused got addicted to vices like drinking and gambling and used to quarrel with the deceased and the parents of the deceased used to pay money to the accused. Three months prior to the present incident, the accused made an attempt on the life of the deceased. On account of that PWs 1 and 2 brought the deceased to their residence on 8.9.2003. Later, the accused requested the parents of the deceased to send the deceased with him saying that he was suffering from kidney problem. PW-2 sent the deceased with the accused and both of them i.e., the accused and the deceased went to Bandlamudi village on 24.09.2003. On 24.9.2003, itself, at about 8.30 PM, PW-1 went to the house of the accused and heard loud sound and on entering the house he found the accused hacking the deceased on head and neck. On seeing PW-1, the accused left the scene of offence and the deceased died on the spot. Neighbours, J. Kotaiah (PW-4), J.China Nagaiah and K.Nityanandam (PW-5) visited the scene. PW-1 went home and informed PW-2 about the incident. They went to Police station on 25.9.2003 at about 5.00 AM and gave report Ex P-1. The Assistant Sub Inspector of Police (PW-9) registered Ex P-1, as Cr.No.90 of 2003 under section 302 IPC. The investigation was taken and later charge sheet was filed. 3. Charge under section 302 IPC was framed, read over and explained to the accused and the accused pleaded not guilty to the charge. 4. On behalf of the prosecution PWs 1 to 10 were marked and Ex P-1 to P-12 were marked, apart from MOs 1 to 6. 5. Out of these witnesses – PW-1 is the brother of the deceased, the alleged eye witness to the incident. He also spoke about the motive i.e., of the accused harassing the deceased continuously. PW-2 is the mother of the deceased, who also spoke about the motive and about other circumstances of her sending PW-1 to the residence of the accused, his coming back and informing about the incident. PW-3 is the brother-in-law of the accused, being the husband of the sister of the accused. He spoke about his learning about the death of the deceased. PW-4 is the uncle of the accused – being the younger brother of the father of the accused. This witness was declared hostile. PW-5 is a neighbour of the accused. He also turned hostile. PW-6 is the photographer that took photographs of the deceased and the scene. PW-7 is the Panchayat Secretary. He is a panch witness for seizure of certain case property and also for inquest. PW-8 is the Medical Officer that conducted autopsy over the dead body of the deceased. According to him, he found the following injuries on the person of the deceased. 1. A cut injury on the neck on right side two inches below the right ear, measuring three inches x 2 inches fracture of right temporal bone. 2. One cut injury on the right zeugmatic region measuring 3” x 2” x 21 ½ “and fracture of zeugmatic bone present on the right side. 3. One cut injury on the neck on right side four inches below the mandibular margin 4” x 2” x 2 ½”. According to him the cause of death was shock and hemorrhage due to multiple injuries. PW-9 is the Assistant Sub Inspector of Police that received the complaint (Ex P-1) from PW-1 and registered the case and PW-10 is the Investigating Officer. 4. After closure of the prosecution evidence when the accused was examined under section 313 Cr.P.C., with reference to the incriminating material appearing against him in the prosecution evidence, he denied the same. 5. On the basis of the material on record, the learned trial Judge found the accused not guilty of the offence with which he was charged and he was acquired, as there was no sufficient evidence against him. Aggrieved by the same the State filed the present appeal. 6. Now the point that arises for consideration is whether there are any grounds for allowing the appeal. 7. As referred to earlier, out of the ten witnesses examined on behalf of the prosecution, the evidence of PWs 1 and 2 alone is relevant to decide the question as to whether there is sufficient evidence for the offence under section 302 IPC, against the accused. 8. Now we shall consider the relevant material to see as to whether there is sufficient material to convict the accused. PW-1 in his chief examination with regard to the actual incident stated that ten days after the accused took away the deceased from the house of PW-2, his parents asked him to go to the house of the accused to see how his sister is being treated. He started from his village at 6.00 PM and reached the village of the accused in ten minutes. While he was nearing the house of the accused, he heard the cries of his sister and when he was about to enter the house of the accused, the accused threw away the axe, which is in his hands and ran away from that place. He chased the accused, but could not catch hold of him. Then he returned to the house of the accused and saw three injuries on the neck, two more injuries above the neck of the deceased and the deceased was lying dead. Then he returned to the village and informed his parents and they went to the house of the accused and from there they went to Police Station and lodged complaint, Ex P-1. He gave oral statement which was reduced into writing on which he signed. Ex P-1 is that statement. 9. As per Ex P-1, PW-1 went to the house of the accused on 24.9.2003 at about 8.30 PM and heard caries. When he entered the house, he found the accused hacking the deceased with an axe on her head and neck. On seeing him, the accused ran away by throwing away the axe there. He chased the accused, but could not catch him. He went home and brought neighbours and his parents by 4.00 AM next day. 10. The evidence of PW-2 is that on the third day of the accused taking the deceased, she sent her son PW-1 to find out as to how the deceased was being treated by the accused. PW-1 left at 5 0’clock in the evening to see the deceased and returned at 6.00 PM and told her that the accused killed the deceased with an axe by hacking on her neck. In the cross examination PW-2 has stated that one Lazarous, a relative of the accused informed them about the death of the deceased for the first time at 8.00PM. They reached at about 9.30 PM after taking all the villagers to the house of the accused. By the time they went there, police were already present there. They did not lodge any complaint with the police, at the time when the police were present at the scene. PW-1 in his cross examination stated that by 6.30PM he went to the house of the accused. According to PW-1, he started by 6.00 PM and reached the village of the accused at 6.15 PM and within ten minutes he started returning to the village and within five minutes he reached his village. 11. From the evidence of PW-1 it is clear that the village of the accused and the deceased are within a distance of ten minutes walk. There is no consistency in his evidence with regard to the time as to when he started from his village and reached the village of the accused. Some time he stated that he started at 6.00 PM and some times he stated at 8.00 or 8.30 PM. Both PWs 1 and 2 have stated that the police were present at the scene even by the time they went there. According to PW-2, one Lazarous informed her for the first time about the death of the deceased, whereas the prosecution case is that PW-1 informed her and other relatives. PW-1 in his cross examination stated that he does not know any person by name Lazarous. It is difficult to believe that PW-1 reached the house of the accused exactly at the time when the accused was attacking the deceased. Perhaps, as stated by PW- 2 in her cross examination, some one by name Lazarous might have informed about the death of the deceased and thereafter they went to the house of the accused. The FIR has come into existence after the police appeared at the scene as such it can not be relied on. 12. As per the inquest report (Ex P-6), the deceased was found lying on the cot in front of the house and not inside the house. Ex P-9 sketch of the scene of offence also shows that the dead body was lying in front of the house. Thus the story of PW-1 that by the time he reached the house of the accused, he heard sounds and by the time he entered the house, the accused was hacking the deceased inside the house is obviously a falsehood, as the offence has taken place in front of the house of the accused, but not inside the house of the accused and the deceased. 13. Thus PW-1 is not an eye witness to the incident and he is planted. The incident has taken place around 6.00 or 6.30 PM in front of the house of the accused and not by dead night. Immediately after the incident, some body must have seen the deceased lying there and might have informed PW-1 and 2 and then only they might have come. Thus when the presence of PW- 1 is ruled out, there is no other evidence to say that it was the accused that caused the death of the deceased. 14. In case the deceased died inside the house of the accused, the accused owed some explanation about the incident. It is not clear as to what happened to the five children of the deceased at the time of the incident. No body has spoken about them. PW-1 in his cross examination stated that he did not enquire as to where were the other three children of the deceased and there was only one girl present. He did not state as to where that one girl was present at the time of the incident i.e., at 6.00 PM. Further the ages of the children are not known; but when there were five children and the marriage has taken place about fifteen years back, obviously some children must have been around the age of 10 – 11 years and none of the children were examined to explain the circumstances under which the incident has taken place. 15. Thus, as found by the learned trial Judge, the prosecution case is full of inconsistencies and the evidence of the alleged eye witnesses is not at all acceptable. In the above circumstances, there are absolutely no grounds to interfere with the findings recorded by the trial court and the appeal is liable to be dismissed. 16. In the result the appeal is dismissed confirming the judgment of the learned IV Additional Sessions Judge (FTC), Ongole made in S.C.No. 68 of 2004. _________________ V. ESWARAIAH, J. Daed:22—12—2010. *BVS _______________________ P. SWAROOP REDDY, J.