HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL Nos.119,168 and 1043 OF 2008 Dated:17-11-2011 CRIMINAL APPEAL No.119 OF 2008 BETWEEN: Nagella Ankalu @ Ramulu …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent CRIMINAL APPEAL No.168 OF 2008 BETWEEN: Madasu Srinu and others …Appellants AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent CRIMINAL APPEAL No.1043 OF 2008 BETWEEN: Kesaboina Sivaiah …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL Nos.119,168 and 1043 OF 2008 COMMON JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Crl.A.No.119 of 2008 is ﬁled by A.4 and Crl.A.No.168 of 2008 is ﬁled by A.1 to A.3. However, A.3 again separately ﬁled Crl.A.No.1043 of 2008. They preferred all these appeals against the very same judgment of II Additional Sessions Judge, Guntur in S.C.No.508 of 2006 dated 7.9.2007 convicting all the accused for the oﬀence under Section 302 read with 34 IPC and sentencing them to undergo imprisonment for life and to pay a ﬁne of Rs.1,000/- each, in default, to suﬀer simple imprisonment for one year for causing the death of Devarapu Venkateswarlu (hereinafter referred to as ‘deceased’) on 27.6.2006 at about 9.00 p.m. near Pilleru Vagu by forcibly robbing cash of Rs.500/-. Since all the appeals are arising out of the same judgment, they are heard together and being disposed of by this common judgment. 2. The story of the prosecution as narrated during the course of trial is as under: All the accused are residents of Choutapapayapalem Village and the deceased was resident of Konanki Village. All the material prosecution witnesses are also residents of Konanki Village. P.W.1 is the wife of the deceased. The deceased used to work in Panchayat Oﬃce as an electrician and he used to attend private works also. On the date of oﬀence i.e. on 27.6.2006 the deceased left the house by 8.00 a.m. informing P.W.1 that he was going to Piduguralla to purchase some material for his day-to-day work. Later the deceased returned to home at about 8.30 p.m. with bleeding injuries. On enquiry by P.W.1, deceased informed her that four unknown culprits attacked him at Pilleru bridge and caused injuries with sticks and that they took away wrist watch, phone book and cash of Rs.500/- from him. The deceased sustained injuries on his chest, left side of the neck and on forehead. Then P.W.1 along with others took the deceased to the hospital at Piduguralla. The doctor at Piduguralla gave treatment to the deceased. On that night the deceased stayed at his house. On the next day morning, the deceased complained of pain on his chest. Then the family members took the deceased to the same hospital. While undergoing treatment, the deceased succumbed to injuries. Then P.W.1 went to Piduguralla Police Station and presented Ex.P.1 report with the police. P.W.9-Sub-Inspector of Police received Ex.P.1 report on 28.7.2006 at 12.00 noon and registered a case in Crime No.141 of 2006 under Section 302 read with 34 IPC and issued F.I.R.-Ex.P.8. P.W.10-Circle Inspector of Police took up further investigation, proceeded to the scene of oﬀence, prepared rough sketch of scene of oﬀence under Ex.P.9, prepared scene of observation report under Ex.P.3 before the presence of P.Ws.4 and 5, then he returned to the hospital and conducted inquest over the dead body of the deceased. Ex.P.2 is the inquest report. Then he sent the dead body of the deceased for post- mortem examination. P.W.8-Civil Assistant Surgeon, Government Hospital, Gurazala conducted autopsy over the dead body of the deceased on 29.7.2006 at 8.00 a.m. and opined that the cause of death of the deceased was due to shock and internal heamorrhage into mediastinum on right side of neck due to rupture of inner costal vessels because of blunt injury to chest leading to cardio respiratory arrest. Ex.P.6 is the post-mortem report issued by him. P.W.10 arrested the accused on 8.10.2006 in the presence of P.Ws.6 and 7, he recorded the confessional statements of accused, seized phone book of the deceased from the possession of A.1, which is marked as M.O.3, recovered the wrist watch from the house of A.3, which is marked as M.O.4. After completion of investigation, P.W.10 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charges, read over and explained to the accused in Telugu and the accused denied the charges and claimed to be tried. 3. To substantiate the case of the prosecution, P.Ws.1 to 10 were examined and Exs.P.1 to P.12 were marked besides material objects 1 to 6. On behalf of defence, no oral or documentary evidence was accused. 4. The learned Sessions Judge after evaluating the oral and documentary evidence particularly believing the evidence of P.W.2, who is projected as an eyewitness to the occurrence held that the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt and accordingly convicted and sentenced the accused as aforementioned. 5. We have heard the learned counsel for the appellants as well as learned Public Prosecutor, who have taken us through the entire evidence and the ﬁndings of the learned Sessions Judge. 6. P.W.1 is the wife of the deceased who set the criminal law into motion by lodging Ex.P.1 report stating that on the date of oﬀence, the deceased left the house at 8.00 a.m. informing that he is going to Piduguralla to purchase some material of his day-to- day work. Normally, he used to return home by 8.00 p.m. On that day, he returned home at 8.30 p.m. with bleeding injuries. On her enquiry, he informed that four unknown culprits attacked him near Pilleru Bridge and caused injuries with sticks. He further informed that the culprits took away his wrist watch, phone book and cash of Rs.500/-. Then herself, her son, her father-in-law and her brother-in-law took the deceased to the hospital of Dr.Anjireddy at Piduguralla, who gave treatment to the injuries and asked them to take the deceased back to their house. They stayed in their house on that night. On the next day morning, the deceased complained of pain on his chest. Then she took the deceased to the same hospital and while undergoing treatment under Dr.Anjireddy, the deceased succumbed to injuries. Immediately, she went to police station and gave Ex.P.1 report to the police. Three months after the death of the deceased, police took her to Piduguralla Police Station, showed her the watch and phone book and she identiﬁed them as that of the deceased. In the cross-examination she deposed that one person scribed Ex.P.1 report, but she did not remember him. 7. P.W.2, who is projected as an eyewitness to the occurrence, deposed that he was working as a clerk in Siva Chemicals, Piduguralla and one Dasari Venkata Ramana was also a cooli in the ﬁrm. He know the deceased as he is native of the same village and he also know all the accused. On 27.7.2006 himself and Dasari Venkata Ramana started at Piduguralla by 8.30 p.m. on a motorcycle belonging to their company. He was driving the motorcycle at that time. There is a small bridge at a distance of half furlong from their village, which is locally known as Pilleru Vagu bridge. There is a turning near the said bridge. When himself and said Dasari Venkataramana reached near the said turning, at about 9.00 p.m., they noticed A.1 to A.4 standing near the bridge armed with sticks. They proceeded further by crossing the accused. when they were about to cross the bridge, they heard cries from back side. He stopped the vehicle and turned back. Then he found the accused and he heard the cries and sounds of beating. The accused were beating the deceased. Then they went to their house. Within ten minutes, he came to bus-stand and there number of people gathered. He found the deceased there with injuries. The deceased was taken to hospital at Piduguralla on that night by his family members. But in the cross-examination, he admitted that he did not see when the accused beat the deceased. Police examined him only on 31.7.2006. Except four accused, he did not see any other person at the time of occurrence. He stated to the police that after hearing the cries, he went to his house, came to bus-stand within 10 minutes and found gathering of the people there and that he found the deceased there with bleeding injuries. It was dark night. P.W.3 was examined to show that the deceased borrowed Rs.500/- from him for purchase of electrical goods. He is not an eye- witness to the incident. P.W.4 is the panch witness for the seizure of M.O.5-four sticks and M.O.6-jute thread and he is also witness to the inquest report. P.W.5 is another witness to the scene of oﬀence panchanama along with P.W.4 and for seizure of M.Os.5 and 6. P.W.s6 and 7 were witnesses to the confessional statements made by the accused and for alleged recovery of M.Os.3 and 4, but as they have not supported the case of the prosecution, they were declared hostile. P.W.8 is the doctor, who conducted post- mortem examination over the dead body of the deceased. He found the following external injuries: (i) A contusion of 4 cm x 3 cm present on the right side of forehead with fracture of frontal bone, (ii) Two contusions of 12 cms x 3 cm present on the right side of the chest with 2 cms gap in between the two contusions, (iii) An abrasion of 3 cms x 2 cms present on right knee joint. He issued Ex.P.8 post-mortem certiﬁcate with his opinion that the cause of death was due to shock and internal heamorrhage into mediastinum on right side of neck due to rupture of inter costal vessels, because of blunt injury to chest leading to cardio respiratory arrest. P.W.9 is the person who registered the crime on the basis of Ex.P.1 report. P.W.10 is the investigating oﬃcer. He deposed that on 28.7.2006 on receipt of information about registration of case, he took up investigation, proceeded to the scene of oﬀence, prepared rough sketch of scene of oﬀence, prepared scene of oﬀence observation report in the presence of mediators, seized the material objects, conducted inquest over the dead body of the deceased in the hospital, recorded the statements of witnesses and on 8.10.2006 he arrested all the accused in the presence of P.Ws.6 and 7. He recorded the confessional statements of accused and seized phone book of the deceased from the possession of A.1 and also recovered M.O.4-wrist watch of deceased from the possession of A.3. 8. In Ex.P.1 report, P.W.1 stated that on 28.7.2006 when the deceased again complained of pain in his chest, she took him to the hospital of Dr.Anjireddy at Piduguralla and while undergoing treatment, the deceased died. Doctor informed her that the deceased died due to heart attack. PW.2, who is prime witness in this case, deposed that after witnessing the incident and reaching home, within ten minutes, he went to bus-stand and found number of people gathered there, where he also found the deceased with injuries. But he has not informed to anybody about the accused attacking the deceased near the bridge or his identifying A.1 to A.4. Further he has not disclosed the names of accused as stated by him in the chief-examination. He also admitted that he has not informed the police about the incident and for the ﬁrst time, he informed the same to the police when he was examined only on 31.7.2006 i.e. four days after the occurrence. P.W.10-investigating oﬃcer also failed to explain as to why the prime witness-P.W.2 was not examined immediately after the incident, if he really witnessed the incident. The Apex Court in State of Orissa v. Brahmanda Nanda (AIR 1976 SC 2488) held that in a murder case, where the entire prosecution case depended on the evidence of a person claiming to be eyewitness and this witness did not disclose the name of the assailant for a day and half after the incident and the explanation oﬀered for non-disclosure was not believable, such non-disclosure was a serious inﬁrmity which destroy the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. In view of the same, no credence can be given to the testimony of P.W.2 about his witnessing the occurrence. Further as seen from his evidence all the accused were armed with sticks waylaid with a view to rob the passersby and were waiting on the turning at Pilleru Vagu bridge at 9.00 p.m. and after they crossed bridge they heard cries from backside. Whereas P.W.1 stated that the deceased returned to the house with bleeding injuries at 8.30 p.m. Admittedly, P.W.2 along with Dasari Venkataramana passed from the same way immediately prior to the deceased, but they were not attacked and the accused chosen only the deceased for the attack. Therefore, the entire case set up by the prosecution appears to be untrustworthy and P.W.2 is a planted witness to strengthen the case of the prosecution. If the evidence of P.W.2 is eschewed from consideration, there is no other evidence to connect the accused with the commission of oﬀence. There remains the alleged recovery of M.Os.3 and 4 from the possession of A.1 and A.3 respectively. The so-called recoveries of M.Os.3 and 4 from the possession of A.1 and A.3 are also not supported by the witnesses-P.Ws.6 and 7, who have categorically stated that they have put their signatures on Exs.P.6 and 7 in the police station. Therefore, the alleged recovery of M.Os.3 and 4 from the possession of A.1 and A.3 is also doubtful. In view of the same, the evidence of P.W.2 which is suﬀering with discrepancies, alone is not sufficient to convict the accused with the capital punishment under Section 302 IPC. The learned Sessions Judge fell in error in accepting the evidence of P.W.2 to base conviction. Therefore, we are inclined to set aside the convictions and sentences imposed on the appellants-accused. 9. In the result, all the Criminal Appeals are allowed and the convictions and sentences imposed on the appellants-A.1 to A.4 by II Additional Sessions Judge, Guntur in S.C.No.508 of 2006, dated 11.9.2007 are hereby set aside. The appellants are found not guilty of the charges with which they stood charged and they are acquitted of the same. They shall be set at liberty forthwith, if not required in any other crime. The ﬁne amount, if any, paid by the appellants, shall be refunded. _______________ A. GOPAL REDDY. J _________________ R.KANTHA RAO, J NOVEMBER 17, 2011 Tsr.