THE HON’BLE SRI JUJSTICE K.C. BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.A.NO.1052 OF 2007 JUDGMENT (Per NRLN,J) The State has preferred this appeal against the acquittal of the accused in Sessions Case No.440 of 2000 on the file of the Court of VI Additional Sessions Judge,(FTC), Machilipatnam whereby and whereunder the accused persons were tried for the offence under Section 302 read with 34 of the Indian Penal Code,1860 ( for short “IPC”). A-1 is the brother-in-law and A-2 is the son of the deceased- Gunnam Ram Babu. The scene of offence is situated in front of the house of the house of PW.6 at Nandigama. The brief facts of prosecution case are as under :- The deceased is also a native of Nandigama. He maintained one kept-mistress by name Y.Mangamma D/o Nageswara Rao of Mudinepalli and sister of A-1 and mother of A-2 and he led marital life with her for a period of 20 years and blessed with A-2. He had suspicion over the fidelity of his kept-mistress, due to which ill-feelings developed in between the deceased and kept-mistress. During the month of January, the deceased purchased a land of an extent of Ac.3.00 and an agreement was written in favour of A-2. Later, the deceased changed his opinion and got registered the same land in his favour. Due to which, A-2 and his mother quarrelled with the deceased. 25 days prior to the commission of this offence, both A-2 and his mother left their house and reached the house of A-1 at Mudinepalli. They made pressures on the deceased and also threatened him with dire consequences that they will see his end if the deceased did not transfer the title deed of the land in favour of A-2. As the deceased did not change his opinion in transferring the title in favour A-2, both A-1 and A-2 decided to kill the deceased and chalked out a plan and accordingly both reached Nandigama on 02-06-2006 to the house where the deceased is sleeping on a cot in the vasara situated in Vuyyuruvari Street of Nandigama. At first instance, both A-1 and A-2 woke up the deceased and all of them came out from the Vasara and a wordly altercation took place in between accused and deceased. At this juncture, A-2 caught hold of the deceased tightly and A-1 stabbed with a “Geeta Kathi” on the right side of the neck of the deceased, resulting the instantaneous death of the deceased. On hearing the cries, PWs.1 and 3 came to the scene and noticed the accused and later accused left the scene along with the weapon. PW.1 has informed the incident to PW.8 who in turn prepared a report and presented the same to the police who registered it as a case in Cr.No.63 of 2000 under Section 302 read with 34 IPC and investigated into. During the course of investigation, the statement of witnesses was recorded; inquest was held over the dead body of the deceased and panchanama of the scene of offence was conducted. The dead body was sent for Post-mortem examination. During the course of investigation, the police custody of the accused was taken and their confessional statement was recorded and in pursuance of the confession, the weapon used in the commission of the offence was seized. The accused were charged for an offence under Section 302 read with 34 IPC. The case was taken on file as PRC 31 of 2000 by the Judicial First Class Magistrate, Machilipatnam and committed the same to the court of Sessions. Later, it was made over to the VI Additional Sessions Judge, (FTC), Machilipatnam. After the appearance of the accused, a charge under Section 302 read with 34 IPC was framed, read over and explained to the accused. The accused pleaded not guilty. On behalf of the prosecution, PWs.1 to 11 were examined and marked Exs.P-1 to P-14 and Mos.1 to 8. After the evidence of prosecution is over, the accused were examined under Section 313 Cr.P.C and no defence side evidence is adduced but Exs.D-1 to D-10 contradictions were marked in the cross examination of PWs.1 to 3. After considering the evidence on record, the learned Sessions Judge acquitted the accused. Challenging the acquittal the present appeal is filed by State. Heard Sri T.Pradyumna Kumar Reddy, the learned counsel for the accused and the learned Public Prosecutor. The points that arise for consideration are:- (1) Whether the prosecution has proved that the accused have committed the murder of the deceased? (2) Whether the learned Sessions Judge did not properly consider the evidence and acquittal recorded by him is not proper and legal? (3) Whether the prosecution proved its case against the accused beyond all reasonable doubt for the offence under Section 302 read with 34 IPC? POINTS:- In support of the case of the prosecution, PW.1 who is the brother of the deceased, PW.2-mother, PW.3-sister of the deceased were examined and their evidence goes to show the relationship between the deceased and accused. Their evidence also discloses the property purchased by the deceased and consequential request for transferring the same in favour of A-2 and the refusal by the deceased and consequential demand from A-1 and A-2 and the threat given to him. Their evidence also goes to show that on the date of incident i.e., on 02- 06-2000 at 3 P.M the accused came to the house of one Jaya Rama Rao where the deceased was there and the accused questioned the deceased about the non-transfer of the land and they committed the murder of the deceased. Their evidence shows that A-2 caught hold of the deceased and A-1 inflicted the injuries on the deceased causing his death. In cross examination of PWs.2 and 3, it was elicited that they are resident of Gudiwada and PW.2 claims to have visited the village “a few days earlier” whereas PW.3 claims that she came only a day prior to the date of incident for collection of Maktha. The evidence of PW.1 further goes to show that he has gone and informed the PW.8 about the incident. PW.8 in turn claims to have made some enquiries and sent a report to the police which was registered as a FIR and investigated into. PW.4 is said to be a neighbour of PWs.5 and 6 and she claims that she was in the village on the day and she was declared as a hostile. So also PW.5 in whose house the incident is said to have occurred when the deceased came there did not support the case of the prosecution and he stated that deceased never came to his house and died in the street. He was declared as hostile by the prosecution. PW.6 is also neighbour at the scene of offence incident and he also spoke that the deceased died in the street in front of the house of PW.5. He did not support the case of the prosecution case and he was also declared as hostile. PW.7 is also examined as an eye witness to the incident, did not support the case of the prosecution and was declared as hostile. The evidence of PW.8 as already stated is that PW.1 came to him and gave the information and he claims to have made some enquiries and sent the Ex.P-5 report. The police came on the next day and conducted the panchanama and scene and also seized Mos.1 to 8. The inquest was also held over the dead body of the deceased. He also spoke that on 20-06-2000 the accused gave voluntary confessional statements in his presence and in pursuance of the confession Mo.1 was seized. During the cross examination he stated that “PW.1 stated to him that on hearing galata between the accused and deceased he went to the house of Jaya Rama Rao and PW.1 did not state to him that PW.2 and 3 accompanying him to the scene and witnessed the incident”. He also did not notice any blood marks on the wall of the house of Jaya Rama Rao. The evidence of PW.9 is about the receipt of the complaint from PW.8 and registering it as in FIR Ex.P-10 and sending it to the concerned officer. The evidence of PW.10 is about examining the deceased and finding the injuries and issuing the P.M certificate under Ex.P-11 and also about the cause of death. The evidence of PW.11 is about the investigation done by him in this case. The learned Sessions Judge did not believe the evidence of PW.1 to 3 as an eye witnesses and also did not believe the recovery of MO.1 and therefore acquitted the accused. Questioning the same, the learned Public Prosecutor contends that PWs.1 to 3 are the close relatives and the relationship between the deceased and A-2 is not seriously disputed and on the date of incident, because of the disputes with regard to property, the accused came and attacked the deceased during day time and the lower court erred in rejecting the evidence of PWs.1 to 3. On the other hand, the learned counsel representing the accused contends that the reasons given by the learned Sessions Judge are reasonable in rejecting the evidence of PWs.1 to 3 and there is no perversity in appreciation of evidence or application of law and when such is the case a reasonable benefit of doubt is extended to the accused, this court cannot interfere with such a finding unless and until compelling and strong reasons in the evidence is available to come to a different conclusion. We are in agreement with the counsel for the respondents that in case of the acquittal, the appellate court cannot easily interfere with the finding of the lower court, if reasons are given which are plausible and we are also aware of the fact that even two views are possible, one extending the benefit of doubt to the accused and another probablising the guilt on circumstances, when the lower court has exercised the discretion in extending the benefit of doubt by discarding the evidence of eye witnesses, it is not permissible for this court to easily disturb the finding. Therefore, in view of the above circumstances, we have to consider whether the evidence of PWs.1 to 3 is reliable and if the presentation of the case by the prosecution is truly made or tainted with any implications or developments. The fact that the deceased was having illicit intimacy with the mother of A-2 is not seriously disputed during the cross examination but however the dispute is with regard to the property, which is said to have been purchased by the deceased in his name after he has deserted the mother of A-2. If really A-2 is interested in getting back the property, he being illegitimate son can have the recourse to the course of law and claim the property. There is absolutely no need for him to go and pick up a quarrel with the deceased for conveying the property. Evidently, no notice was given prior to the incident by A-2 or his mother claiming share in the properties of the deceased. Therefore in view of the above circumstances, the immediate cause or provocation for causing the incident by the accused appears to be too remote. The question before the court is whether the lower court was right in rejecting the evidence of PWs.1 to 3 being not eye witnesses to the incident. Evidently, PW.1 is resident of Nandigama whereas PWs.2 and 3 are residing at different villages. The reasons given by PW.3 for coming to the village a day prior to the incident appears to be un-natural since she is said to have come down to collect the Maktha. During June month the payment of maktha will not generally arise since by then the agricultural season will be over and the crops would also be cut and it will be a fresh season for agricultural activities. The evidence of PW.3 is also therefore very much doubtful about her presence on the date of incident in the house of the deceased. Evidently, if A-1 and A-2 intended to question the deceased they would have gone to his house and questioned him. The scene of offence is on the street and opposite to the house of PWs.5 and 6. According to the case of the prosecution, the deceased is said to have gone to the house of PW.5, which fact is not supported by the evidence of PW.5. The reason for the deceased going to the house of PW.5 is also not mentioned. If the scene of incident is opposite to the house of PW.5, then naturally PWs.2 and 3 even if they were present in the village, must be staying in the house of the deceased and from scene distance is not disclosed in the scene of offence sketch or in the evidence. Added to that the information given by PW.1 to PW.8 does not disclose that he has also informed the presence of PWs.2 and 3 at the scene of offence and accompanying him to the scene. As rightly contended by the learned counsel for the respondents, the complaint given by PW.8 on the next day morning and if the information was really given by PW.1, it would have been naturally reduced into writing by PW.8 with all the facts, then he would have forwarded his own report along with the statement of PW.1. But seriously though PW.8 claims to have gone to the scene and made inquiries he did not record the statement of PW.1 when he came and gave the information about the incident but he took the signatures of PW.1 on Ex.P-5. If really, the witnesses PWs.2 and 3 were to be present in the village, this fact would not have been missed the mention by PW.1, when that is so it would have found place in Ex.P-5. Therefore, the learned Sessions Judge on consideration of the material expressed a serious doubt about the presence of PWs.2 and 3 on the date of the incident and coming to the scene at the time of incident. Sofar as the evidence of PW.1 is concerned, his statement in cross examination and also the contradictions clearly goes to show that he has gone to the scene after hearing the cries and evidently after the incident. There are absolutely no supporting circumstances to corroborate his evidence. The question of his witnessing, A-2 catching hold of the deceased and A-1 stabbing him on the street appears to be improbable. If once the presence of PWs.2 and 3 is disbelieved and the evidence of PW.1 is tainted with not speaking the truth, then this court has no option to accept the reasons given by the learned Sessions Judge that PWs.1 to 3 are not speaking truth. This court is also conscious about the fact that none of the neighbouring witnesses have supported the prosecution case. Therefore, in view of the above circumstances a well reasoned acquittal recorded by the learned Sessions Judge does not call for any interference. We do not find any reasons to interfere with the judgment of the lower court. Thus the appeal is liable to be dismissed. In the result, the Criminal Appeal is dismissed. ____________ K.C.BHANU,J ____________________ N.R.L.NAGESWARA RAO,J 20-01-2011 TSNR