HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NOs.294 and 489 OF 2008 DATED: 15.09.2009 CRL.A.NO.294 OF 2008 BETWEEN: Vangala Sreenivasa Reddy and others .. Appellants/A1 to 4 And The State of A.P. Rep.by the Public Prosecutor High Court of A.P., Hyderabad. .. Respondent CRL.A.NO.489 OF 2009 BETWEEN: Vangala Rambhupal Reddy .. Appellant/A5 And The State of A.P. Rep.by the Public Prosecutor High Court of A.P., Hyderabad. .. Respondent HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NOs.294 and 489 OF 2008 JUDGMENT: (Per RKR,J) Since both the appeals arises out of the same judgment and filed by two different sets of accused, they are disposed of jointly with the consent of both sides. 2. Heard Sri C. Padmanabha Reddy, learned senior counsel appearing for the appellants/accused 1 to 4 in Crl.A.No.294 of 2008 and Sri Jalagam Ravi Kumar, learned counsel appearing for the appellant/accused No.5 in Crl.A.No.489 of 2008 and leaned Public Prosecutor for the State. 3. The learned III Additional Sessions Judge, Nandyal, Kurnool Sessions Division, convicted the appellants for the offences punishable under Sections 148 and 302 IPC and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs.100/- each, in default to suffer simple imprisonment for a period of one week for the offence punishable under Section 302 IPC and further sentenced each of them to undergo simple imprisonment for a period of one month for the offence punishable under Section 148 IPC. Both the substantive sentences were directed to run concurrently. A6 to A9 were found not guilty for the offences with which they were charged and accordingly they were acquitted. 4. Assailing the said order of conviction and sentence, the appellants preferred the present appeals. 5. Briefly stated, the prosecution case is like this: The appellants are residents of Manchalakatta Village of Gadivemula Mandal of Kurnool District, and the deceased Chinna Gundam Anki Reddy and the material witnesses for the prosecution also belong to the same Village. A1 to A5 are close relatives. There was political rivalry between A1 and the deceased. On 05.06.2005 at about 7.30 P.M. A1 to A9 assembled in the thrashing floor of A1 in Manchalakatta Village and A3 started conversing with A1, A2, A4 to A9 to pass information about the movements of the deceased from the village, the same was witnessed by PW.6 – Bidugu Munaiah and V.Venkateshwara Reddy – LW7. On 08.06.2005 PW-1, Anil Kumar Reddy came from Talamudipi Village to Manchalakatta village and stayed in the house of the deceased – Chinna Gundam Anki Reddy in order to collect lease amounts from the farmers. On 9.6.2005 at about 9 AM, the deceased and PW-7 – Mulla Mahaboob Basha inone motor cycle and PW-1 and PW-2 – Meghanatha Reddy in another motor cycle left Manchalakatta Village to Nandyal in order to see the dead body of one Telugu Sivaiah of Manchalakatta Village who had committed suicide by consuming pesticide poison and whose body was kept at Government Hospital, Nandyal. The deceased was driving the suzuki motor cycle bearing AP 21 D8106 while PW-7 sat in the rear seat. On 9.6.2005 at 10 AM the deceased and PW-7 in the motor cycle went ahead of the motor cycle of PWs.1and 2 leaving them at a distance of 200 feet after crossing Gadigarevula village. In the outskirts of Gadigarevula Village on the road, A1 to A4 in the contessa car bearing No.AP9 U 6355, A5 on Yamaha motor cycle came from Gadivemula crossed the motor cycle and hit on the back of the motor cycle driven by the deceased with the car. As a result of which the deceased and PW-7 fell down, A1 to A.4 got down from the contessa car while A5, who came in the motorcycle joined them. On seeing the accused, the deceased got up and tried to escape, A1 beat the deceased with an iron rod, A2 dealt blows on the deceased with knife, A3 to A.5 surrounded the deceased and threatened PWs.1 and 2 not to come near to the deceased or else, they would be met with the same fate of the deceased, A3, A4 and A5 brought hunting sickles, kept in the contesa car took one each and hacked the deceased and the deceased fell down in a pool of blood with bleeding injuries. The deceased was struggling for life and PW.7 also fell down. A1 to A.5 threatened PW-7 not to disclose the incident to any body or else. A1 to A5 fled away from the scene of offence. PWs1, 2, 4 & 5 witnessed the incident. PWs.1 to 3 who found the injured PW-7 on the road in unconscious state while the deceased with number of injuries was still breathing, shifted them to the Government Hospital, Nandyal. But, the deceased succumbed to injuries. On 9.6.2005 at 12.00 hours PW.1 presented a written report to PW-19, the SI of Police of Gaddivemula Police Station, who went to the Government Hospital Nandyal. On the strength of the said report, PW-19 registered a case in Crime No.40 of 2005 for the offences under Sections 147, 148, 307, 302 read with 149 IPC and issued express FIR and investigated into. PW.20 – Inspector of Police, Nandyal I-Town Circle initially conducted investigation on 09.06.2005 and it was taken over by PW.21 the Inspector of Police, Panyam circle on the same day. PW21 visited the scene of offence, prepared observation panchanama, seized the material objects under a cover of panchanama in the presence of mediators PW-12 and another, interrogated A-1 to A-5 and recorded their confessional statements and after completing investigation, he filed the charge sheet. 6. The prosecution in order to prove the guilt of the appellants examined PWs.1 to 21, marked Exs.P.1 to P.24 and MOs 1 to 17 before the trial Court. On behalf of the appellants DWs1 to 12 were examined, Exs.D1 to D57 and Exs.X1 to X.23 were marked. 7. The learned senior counsel contended that the delay in FIR reaching the Magistrate clearly indicates that there is also delay in registering the FIR and in view of the fact that the prosecution party and the accused belong to different rival groups in a fraction ridden village, it is quite unsafe to convict the appellants relying on the evidence of PWs.1, 2, 4 and 5, who are interested and partisan witnesses. He would further contend that the version at the earliest point of time which is contained in Ex.P.1 – report lodged by PW.1 has been improved from stage to stage and the appellants have been falsely roped in the grave charge only due to political faction, and therefore, the conviction and sentence are liable to be set aside and the appellants are to be acquitted. 8. On the other hand, the learned Public Prosecutor for State would submit that since PWs.1, 2, 4 and 5 have spoken to their witnessing the incident, even though they are partisan witnesses, their evidence cannot be brushed aside and the conviction and sentence passed against them by the trial Court being proper, needs no interference in this appeal. 9. We have perused the depositions of the witnesses, judgment of the trial Court and all other material papers available on record and thoroughly considered the submissions made by both the counsel. 10. Basing on the rival contentions, the following points would arise for consideration before us in this appeal. 1. Whether any reliance can be placed on the evidence of the eyewitnesses viz. PWs.1, 2, 4 and 5 having regard to the facts and circumstances of the case and the nature of their evidence? 2. Whether the oral evidence comes into conflict with medical evidence thereby rendering testimony of the eyewitnesses undependable? 3. Whether the investigation conducted in the present case is perfunctory and whether it vitiates the entire case of the prosecution? 4. Whether the delay in FIR reaching the magistrate leads to an inference that there was also delay in lodging the same and if there was delay in lodging the FIR, whether it is fatal to the case of the prosecution. POINT No.1: 11. Indisputably there are two political factions in Manchalakatta Village. The prosecution party belongs to one political party, and the appellants belong to the other. In the first place, we would like to refer to the material averments contained in Ex.P.1 report lodged by PW.1 with PW.19 - S.I. of Police of Gadivemuola Police Station. In Ex.P.1, PW.1 stated as follows: “On 9.6.2005 morning at about 9 O’ clock his uncle Anki Reddy and Mulla Mahaboob Basha on one motor cycle and PW.1 and Meghanadha Reddy on another motor cycle have started to Nandyal to see the dead body of Telugu Sivaiah (not the deceased in the present case) of the said village in the Government Hospital at Nandyal. At about 10 O’ clock they crossed Gadivarevula and proceeded to some distance, he and Meghanadha Reddy were 200 feet behind the motor cycle on which the deceased Anki Reddy was proceeding. At that point of time, his uncle Anki Reddy was going in front of them, one white colour contessa car crossed them and went further. Soon after that Manchalakatta Bhupal Reddy on a Yamaha motor cycle crossed them. The contessa car, which was proceeding in front of them dashed the motor cycle on which his uncle Anki Reddy and Mehboob Basha were proceeding. On that both of them fell down. Immediately, the car was also stopped and then Vangala Sreenivasa Reddy, Vangala Muralidhara Reddy, Vangala Venkateswara Reddy, Vangala Chandramohan Reddy got down from the said car. On seeing them, the deceased started raising from the ground, Srinivasa Reddy was beating him with the iron rod and Muralidhar Reddy hacking with knife and the remaining persons surrounded them and watching to avoid any body’s interference. Venkata Reddy directed them to go away and threatened them to kill otherwise. Thereafter all of them (prosecution party) went back and stayed 15 minutes near Gadigarevula pial and went near to their uncle Anki Reddy and found him in last breathing and Mahaboob Basha fell unconscious.” 12. In Ex.P.1, though the presence of A.3 to A5 is mentioned, it is only restricted to their watching to avoid anybody’s interference in the attack. PW.1 also did not state in Ex.P.1 that A3 to A.5 were armed with any weapons. Further more, in the 161 Cr.P.C. statements also, the eyewitnesses viz PWs.1, 2, 4 and 5 did not state about A3 to A5 hacking the deceased with hunting sickles. This material omission is a serious infirmity in the prosecution case which renders the testimony of the eyewitnesses unreliable. 13. Surprisingly, PW.7 who was said to have followed the deceased as a pillion rider did not support the prosecution version. He was said to have sustained injuries according to the prosecution. Being an eyewitness, according to the prosecution, PW-7 did not support the prosecution version. However, merely because a witness did not support the prosecution version, the testimony of the said witnesses, who was declared hostile by the prosecution, cannot be said to be false. It may also be on some occasions true. However, in the facts and circumstances of the present case, we do not take in to consideration the evidence of PW.7 on either way. 14. PW.15, the doctor, who conducted the postmortem over the body of the deceased, noticed the following injuries: External injuries: 1. Two incised injuries of sizes 18 x 2 cms x brain deep 15 x 2 cms x brain deep with 1 cm gap in between the two injuries are present extending from 1” back to the left ear towards area 2” from right ear horizontally placed. 2. Vertically placed incised wound of 9 cm x 1 cm x bone deep in between two parietal bones extending onto occipital bone upper end merging with injury No.1. 3. An obliquely placed incised would of 4 x 1 cm x bone deep elliptical in shape with clear cut edges and tapering ends. 4. An incised wound elliptical shape size 5 cm x 1 cm x muscle deep tapering ends and clear cut edges present below the naps of the neck obliquely placed. 5. 5. An incised wound elliptical shaped size 5 x 2 cm x muscle deep, with clear cut edges and tapering ends placed on the upper part of right shoulder. 6. An incised wound of 7.5 cm x 4 cm x muscle deep elliptical shaped with clear cut edges and tapering ends placed on right shoulder below and lateral to above mentioned injury. 7. An elliptical shaped incised wound of 5 cm x 1 cm x skin deep present on the dorsum of left had above the knuckles of 2nd and 3rd finger edges are clear cut with tapering ends. 8. An incised wound of 7 cm x 1 cm muscle deep, elliptical shaped present on the ulna side of left hand on palmer aspect with clear cut edges and tapering ends. 9. An incised wound elliptical shaped size 2 cm x 1 cm x skin deep on neck on left side with clear cut edges and tapering ends. 10. An incised wound elliptical shaped, size 6 cm x 2 cm x bone deep present over the upper part of the right scapula with clear cut edges and tapering ends. A contusion mark red in colour semicircular shape present on the right tapering and at size 4 cm length. 11. An incised wound elliptical shaped size 4 cm x 1 cm x 1 cm placed on the back of right shoulder with clear cut edges and tapering ends with red contusion mark of semicircular shape length 4 cm from the right tapering end. 12. An incised wound elliptical shape of 3 cm x 1 cm x 1 cm placed on area medial to left scapula with tapering ends and clear out edges with red contusion of semicircular shape about 6 cms length from the medial tapering end towards right side. 13. An incised wound of elliptical shape of size ½ x ½ cm skin deep present lateral to above mentioned injury with clear cut edges and tapering ends with red contusion of 8 cms length from medial tapering end towards right side. INTERNAL EXAMINATION: Head: on opening the injury No.1 bone between the two injuries is mutilated, depressed fracture in to wound. Some bone fragments are missing exposing the brain matter on deep dissection, brain is lacerated. On opening injury No.2: fissure fracture of occipital bone present. Chest: on opening injury No.10 right scapula bone is fractured. Neck: Neck structures are normal. Rib cage is normal lungs: normal, Heart: chambers are empty. Abdomen: stomach: partially digested food materials about 300 cc present. Wall is normal. Liver:normal appearance c/s pale. Kidneys:Normal appearance. C/s slightly pale. Spleen: Normal, Incestines: Distended with gas. Bladder and bowel are empty. Long bones normal. Time of death: 6 to 12 hours prior to P.M. examination. The deceased would appears to have died of shock and haemorrhage due to injury to vital organ i.e. brain probably due to sharp edged weapon. 15. As per the version in the first information report, the first accused beat the deceased with an iron rod on the head, whereas the second accused hacked with knife. No other overt acts against the deceased have been attributed to remaining accused. However, in the evidence PWs.1, 2, 4 and 5 apart from stating that A1 beat the deceased with iron rod and A2 stabbed the deceased with knife also stated that A3 to A5 hacked the deceased with hunting sickles. Though the first information report is not a substantive piece of evidence, it is a vital document to know about the investigation and it is very much useful to find out the earliest version basing on which the investigation commenced. The entire evidence of the eyewitnesses is contra and distinct to the averments made by PW.1 in the first information report. There was no injury, which was supposed to have been caused with an iron rod repeatedly on the head of the deceased. Further, the evidence of the eyewitnesses before the court comes into conflict with the version in the first information report and is also at variance with the police statements made by the said witnesses. Therefore, we have no manner of doubt whatsoever on the aspect that the medical evidence comes into conflict with the oral evidence, more particularly, as there was no injury, which was supposed to have been caused on the head of the deceased with an iron rod. This leads to an inference that either the eyewitnesses were not present at the place of occurrence or that they are not giving correct version about the incident. 16. Under these circumstances, we feel that it is not safe to rely on the testimony of the eyewitnesses, who are interested and partisan. POINT No.2: 17. In the instant case, the first information report was registered by PW.19 – S.I. of police basing on the written report of PW.1. PW.20 conducted the investigation and recorded the statements of some witnesses, thereafter it is the version of the prosecution that PW.21, who was the Inspector of Police took over the investigation from PW.20. Curiously in this case, the defence came forward with the version that on 9.6.2008 at 5.00 PM, PW.21 was in Athithi Hotel at Hyderabad on official duty and he claimed TA and DA also for his visit to Hyderabad. On 10.06.2005 he reached Nandyal at 5 PM and therefore his taking over investigation from PW.20 on 9.6.2005 is absolutely false and the entire investigation is tainted for that reason. The prosecution examined DW5, who is the Administrative Officer in the District Police Office and DW.6 who is the receptionist of Athithi residency, Hyderabad to prove the said fact. PW.21 stated in his evidence in the cross examination as follows:- “On 09.06.2005 first time I received the information in the crime at about 4.30 PM when I was at my office in Panyam. I received the information through my cell phone bearing No.9440795534. I received a call to the above phone from O.S.D.Nandyal. O.S.D. told me over phone that a murder took place in the limits of Gadivemula P.S. and it was investigated by PW.20. I was on other duty on that day, therefore, the O.S.D directed me to go to Government Area Hospital, Nandyal and to take up the investigation from PW.20. On that day I was on other duty, I was investigating in Cr.No.32 of 2005 of Panyam P.S. U/Section 302 IPC. I was in my office from 4.10 P.M. before receiving the information. I went to Hyderabad to investigate into Cr.No.32 of 2005. I left for Hyderabad at 3 A.M. on 9.6.2005 to investigate into Cr.No.32 of 2005. I reached Hyderabad approximately at 8. A.M. Again I started from Hyderabad at 11 P.M. for Panyam. I reached Panyam from Hyderabad. Thereafter, I came to Nandyal. No information was received from the SHO Gadivemula before I had a talk with OSD and left for Nandyal. I went to Hyderabad with my constables but no other person accompanied. In Cr.No.32 of 2005 no charge sheet was filed nor did I arrest the accused in that case. I do not remember whether I stayed in a Hotel byname Athithi Residence near Ramakrishna theatre, Abids. I do not remember whether I have claimed any T.A. on 9.6.2005 as I went to Hyderabad. The witness perused a certified copy of the T.A. Bill and deposed that he does not remember whether he submitted such a bill. I cannot say whether the T.A. bill contains my signature or not. I cannot say the letter showed to me was issued by the office of the Superintendent of Police, Kurnool. I do not remember whether I had drawn the T.A. claim from sub treasury. Normally T.A. claims will be submitted to the office of S.P. of Kurnool. I do not know the procedure after the approval of the T.A. Bill. I do not know how to get a T.A. Bill and to encash for approval from the office of the S.P.” 18. In the further cross examination of PW.21, the carbon copy of the TA bill signed by him and presented to the Superintendent of Police was marked as Ex.X.7. In the first instance the witness stated that Ex.X.7 does not contain his signature. But thereafter, he admitted that his signature is on the second page of Ex.X.7, his office staff prepared Ex.X.7 and that by oversight he signed in Ex.X.7. He also admitted that he cannot deny the genuineness of the contents of Ex.X.7. He stated that he does not remember whether he withdrew the amount under the TA Bill Ex.X.7 and added that if at all he received any amount under Ex.X.7, he was ready to remit the same on verification. He further admitted the fact that there was no provision provided in the first page of the TA bill for the signature of the claimant. Thus, from the answers given by him in the cross examination, it can be safely concluded that Ex.X.7 TA bill was presented by him and he withdrew the TA amount under the said bill. 19. He further deposed in the cross examination that he does not remember whether he stayed in the Athithi Hotel on 9.10.06.2005. According to the defence, he occupied Room Nos.107 and 207 in Athithi hotel, Hyderabad and paid the rent vide receipt No.602 dated 10.06.2005. A lawyer’s notice dated 04.04.2007 was sent to him. When a photostat copy of the bill dated 10.06.2005 was said to have been issued to him by the Management of Athithi residence shown to PW.21, he stated that, unless he peruse the original, he cannot say whether the Xerox copy contains his signature or not. The Xerox copy of the said bill is marked as Ex.D.48. PW.21 curiously stated that he did not remember whether he stayed in the Athithi hotel or not. 20. DW5, at the relevant time who was working as Administrative Officer, District Police Office, Kurnool stated in his deposition that PW.21, the Inspector of Police submitted the TA bill in the month of June, 2005 which is Ex.X.7. As seen from Ex.X.7 on 9.6.2005, PW.21 started from Panyam at 4 AM to go to Hyderabad and on the same day he reached Hyderabad at 10.30 AM. He started from Hyderabad on 10.06.2005 at 10 AM and reached Nandyal at 5.00 PM. The relevant entry in Ex.X.7 is marked as Ex.X.19. 21. DW.6 is a receptionist in Athithi Hotel in Hyderabad. He stated in his deposition that as seen from bill No.602, dated 10.06.2005 Rooms were in the occupation of one V.Jayachandrudu, who was the CI of Police, Kurnool. He further stated that the CI of Police (PW.21) stayed in one room for one day. He occupied rooms at 10.00 PM on 9.6.2005 and vacated at 10.00 AM on 10.06.2005. He also stated that PW.21 booked room Nos.107 and 207 in his name, out of two rooms, room No.107 was occupied by PW.21 and his wife and another room No.207 was occupied by the driver and constable. He also stated that PW.21 signed in Ex.X.20 when he vacated both the rooms and he mentioned the date as 10.06.2005. He paid Rs.900/- towards rent and luxury tax of Rs.42/-. This witness stated that he knew PW.21, who was regular to their hotel and Ex.X.20 also contains the signature of DW.6. 22. Both the witnesses supported the defence theory on this aspect and by examining these witnesses and also from the Vartha newspaper in which the material objects were parcelled etc. The same said to have been provided by PW.1 and the M.Os reached the Magistrate on 5.7.2005, This shows that there is a gap of about 25 days. It has not been properly explained. 23. Another important aspect is the material collected by PW.21 that has been wrapped in the newspaper and sealed for