THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1758 OF 2006 05.03.2010 Between: Anamaneni Nageswar Rao … Appellant/Accused AND State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1758 OF 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The appellant is the sole accused in Sessions Case No.158 of 2006 on the file of the Court of the I Additional District and Sessions Judge, Chittoor by Judgment dated 18.12.2006. The said Court convicted the appellant (the accused) under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-. The challenge in this appeal is to the conviction and sentence by the Sessions Court. The accused is a resident of Modalapalli village of Thavanampalli Mandal in Chittoor District. The deceased Giri Babu and P.W.1 Vidyasagar are sons of P.W.4, Kodanda Naidu constituting joint family. They are residents of Sankranthipalle village of Bangarupalem Mandal. There were rumours in both the villages that the wife of the accused and the deceased are having illicit intimacy. On 03.02.2006, at about 3.00 p.m., the deceased went to mango garden near Vaddivanicheruvu. He did not return as expected. P.W.1 and P.W.4 started searching at 8.00 p.m., and on their way to mango garden, they were informed by P.W.2 and P.W.3, that they saw deceased and the accused together going to mango garden. Father and brother of deceased continued the search with torchlight. Soon thereafter, they found Giri Babu lying in a pool of blood with head injuries. They returned to their house at 9.30 p.m., informed the wife of the deceased Sudershana Devi. L.W.5 arranged some villagers to stay near the dead body and P.W.1 went to P.S., Bangarupalem, and gave a report Ex.P.1 at 5.00 a.m. Sub Inspector of Police (L.W.15) registered the cognizable offence and sent F.I.R Ex.P.7 to all concerned. Inspector of Police (P.W.11) took up investigation. He conducted Inquest between 8.00 a.m., and 10.30 a.m., on 04.02.2006 near the scene of offence and recorded statements in the presence of five witnesses and Panchayatdars (L.Ws.9 to 11). On 05.02.2006 at 5.30 p.m., P.W.11 arrested the accused near Doraswamy Dhaba Hotel near Balijapalli on Palamaner-Bangarupalem road and recorded his confessional statement, based on which he recovered clothes the accused wore at the time of commission of offence. During the investigation, it was revealed that P.W.5 and P.W.6 are eye witnesses and they saw the accused picking up the stone beating the deceased with the same twice or thrice. They also alleged that when they went to the rescue of the deceased, the accused threatened to kill them if the information is revealed by anybody. After completing investigation, P.W.11 filed charge sheet, on the file of the Court of the IV Additional Judicial Magistrate of First Class, Chittoor. He took cognizance of the offence under Section 302 IPC and after conducting enquiry in P.R.C.No.5 of 2006 committed the case to the Court of Sessions, Chittoor, which was made over to the Court of I Additional Sessions Judge, Chittoor. The prosecution examined as many as eleven witnesses, marked Exs.P.1 to P.10 and M.Os.1 to 14 to support their case. D.W.1 was examined and Exs.D.1 and D.2 were marked for the accused. On considering the evidence on record, the Court believed the witnesses who gave circumstantial evidence P.W.1 to P.W.4 and eye witnesses P.W.5 and P.W.6 and came to the conclusion that the prosecution case is proved and accordingly convicted and imposed the sentence as noticed hereinabove. Learned senior counsel for the accused submits that when P.W.1 and P.W.4 allegedly found dead body of the deceased at about 8.30 p.m., Ex.P.1 report was given to P.S., Bangarupalem at 5.00 a.m. The delay in registering F.I.R., is fatal to the case of the prosecution. According to learned counsel, an inference can be drawn from this that the case is concocted and the prosecution implicated the accused. He would then urge that the circumstantial witnesses P.W.1 to P.W.4, gave different versions and therefore, no advantage can be derived from their evidence. It is his contention that P.W.5 or P.W.6 are planted witnesses for the reason that Ex.P.1 does not mention the presence of these alleged eye witnesses and they were not present during the inquest and were examined after the inquest. According to learned senior counsel, the case of the prosecution is wholly improbable and the evidence is suspicious. The Public Prosecutor relies on the evidence of P.W.9 in whose presence, P.W.11 arrested the accused, recorded confessional statement, Ex.P.4 and seized the clothes the accused wore, M.Os.6 and 7, at the time of commission of offence. He also relies on Ex.P.10, F.S.L. Report to contend that the very seizure of blood stained clothes from the house of the accused would show his involvement in the offence. P.W.5 and P.W.6, according to learned counsel, are truthful witnesses, that the very presence at the time of commission of offence cannot be doubted and that their non-examination during inquest itself cannot be a ground for rejecting their evidence. P.W.1 to P.W.4 are circumstantial witnesses. Their evidence need to be appreciated in juxta position with each others evidence. Again P.W.1 and P.W.2 have to be read together. P.W.4 is father of the deceased Giri Babu. He is a rich landlord of Sankranthipalle. He deposed that on 03.02.2006 when Giri Babu did not return from mango garden at 7.00 or 8.00 p.m., he took P.W.1 and went to mango garden. They met with P.W.2 and P.W.3 at a distance of half kilometer from Vaddivanicheruvu garden. Those two informed that they saw the accused and deceased going together into the mango garden and they also saw the accused returning from the garden running with fear. He further deposed that after they got information from P.W.2 and P.W.3, they went to mango garden and searched with the help of torchlight and found Giri Babu lying on the floor with head injuries. The people from Harijanwada came there and he stayed there at the dead body and sent P.W.1 to bring his daughter in law and his wife. Both of them came to dead body at 12 or 1 p.m., and then he sent P.W.1 at 4.00 a.m., to police station. In his cross-examination, he asserted that his son (deceased) helped many people in the village and that he was not having any illicit intimacy with any lady in the village nor misbehaved with any woman. It was suggested to him that there were disputes between P.W.1 and wife of the deceased with regard to the sharing the amount which P.W.1 got as commission from Engineering Colleges for procuring candidates for engineering admission. It was also suggested to him that P.W.1 and Giri Babu are not having good relations and therefore, the wife of the deceased left the house and stayed at her parent’s house for a period of three months due to property disputes. He denied the suggestion that the accused was implicated in the case. The evidence of P.W.4 is fully supported by P.W.1, who is younger son of P.W.4. He also deposed that when the deceased did not return home even by 8.00 p.m., he started with P.W.4 and on the way came across P.W.2 and P.W.3 that both of them informed that they saw deceased and accused going together towards mango garden by walking and also saw the accused alone returning in a hurried manner. In view of this, P.W.1 and P.W.4 pursued their search and found the deceased in the pool of blood with the injuries on head. Having found that he was dead, they went to the village and informed the relatives. As it was dark, they went to the police station on the next day and lodged complaint. He also gave the particulars of the land the family owns – Acs.14.00 of mango garden at Diguvamodalapalli, Acs.12.00 of mango garden at Vaddivanicheruvu, and Acs.5.00 of mango garden at Sankranthipalle. He also spoke about motor vehicles the family owns – Hyundai Accent car, tractor and motor cycle; and the land line telephone and cell phones. He was also cross-examined the alleged disputes between the deceased and P.W.1, and his sister in law and himself. But, the main deposition that he and P.W.4 left in search of deceased at 8.00 p.m., and that they met P.W.2 and P.W.3 on the way to mango garden when they informed about seeing the deceased and the accused together going to mango garden, remains intact. As seen from both the cross-examinations, every attempt was made to extract information regarding the alleged disputes between the brothers, between the sister in law and P.W.1, and the facility and wherewithal the family has which could have been used to inform the police immediately after finding the dead body of the deceased. P.W.2 is resident of Gundlakattamanchi. He is agriculturist and is also electrician in Andhra Pradesh State Road Transport Corporation at Peleru depot. He knows P.W.1, P.W.4 and the deceased. He deposed that on 03.02.2006, he and P.W.3 went to mango garden as P.W.2 at a distance of one-and-a-half furlong from the scene of offence on a two wheeler (Bajaj Motorcycle) at about 5.00 p.m. They parked the vehicle and went to a nearby village Katrabanda to inquire about availability of coolies. The villagers asked P.W.2 and P.W.3 to come at 7.00 p.m. They came back to their motor cycle. They saw the deceased and accused going towards the mango garden of the deceased. They left the place and went to the mango garden of P.W.2 for one hour. Thereafter they saw the accused going alone and waited upto 7.00 p.m. and went to Vaddivanicheruvu village at a distance of one kilometer from mango garden for securing workers. They were not available. Therefore, they returned to Katrabanda village for workers and informing the workers available there to come for next day work, he returned to Katrabanda and proceeded towards Vaddivanicheruvu. On the way, they met P.W.1 and P.W.4 coming by car. On being stopped and enquired about the deceased, he and P.W.3 informed that they saw the deceased and accused going at 5.00 p.m. Then he returned to his native place Gundlakattamanchi. On being questioned by the Court, he deposed that there are no disputes between the deceased and his brother. The effort of the defendants to shake his evidence in his cross-examination proved futile. P.W.3 is also native of Gundlakattamanchi. He knows P.W.1, P.W.4 and P.W.2. He supports P.W.2 in all respects. He deposed that he and P.W.2 went on a motor cycle to find out whether coolies are available at Katrabanda, parked the motor cycle near the garden of the deceased, and while returning the garden they saw the deceased and accused going to the garden, and after some time when they returned to garden, they saw the accused going away in hurried manner. On the way back, they informed about this to P.W.1 and P.W.4 coming in a car. From the evidence of P.W.1 and P.W.4, it is but natural that when the deceased who had gone to mango garden at Vaddivanicheruvu at 3.00 p.m., did not return even by 7 or 8 p.m., P.W.1 and P.W.4 ventured out in search of Giri Babu in a car. P.W.2 and P.W.3 who had gone to Katrabanda in search of coolies are consistent in their version that when they were coming to the vehicle of P.W.2 at 5.00 p.m., and returned to the garden of P.W.2 as they were asked to come by 7.00 p.m. At that time, they saw the deceased and accused moving towards the garden of the deceased. After an hour they saw the accused going alone in a hurried manner. Except that P.W.1 and P.W.4 are interested witnesses, there is nothing to discard the circumstantial evidence given by P.W.1 to P.W.4. P.W.1 and P.W.4 deposed having received information from P.W.2 and P.W.3, the persons who gave information to father and son, also admit as P.W.2 and P.W.3 that they saw P.W.1 and P.W.4 coming in a car towards Vaddivanicheruvu garden and inquiring whereabouts of the deceased. Before considering the evidence of P.W.5 and P.W.6, it would be appropriate to deal with the effect of delay in lodging the report, Ex.P.1, based on which, Ex.P.7, F.I.R., was registered by Sub Inspector of P.S., Bangarupalem (L.W.15). According to P.W.1 on their way to mango garden, they left to their house at 8.00 p.m., in search of the deceased. On the way (half kilometer from the garden as per P.W.4), they met P.W.2 and P.W.3. On coming to know that the deceased and the accused were moving together at about 5.00 p.m., they started the search with torchlights. They found the dead body at 9.00 p.m. Ex.P.1, report, was given at 5.00 a.m., on the next day to P.S., Bangarupalem, which is at the distance of 15 kilometers from the scene of offence. Thus, there is a delay of eight hours in lodging report by P.W.1. Every delayed F.I.R. is not fatal to the prosecution nor the criminal charge can be thrown out on the ground that there is delay in registering F.I.R. In every cognizible case, ordinarily the police get to know only after receiving report by victim or victim’s family member. There is no dispute that the Sub Inspector of Police registered crime No.17 of 2006, issued F.I.R., and reported to P.W.11, who commenced investigation at 8.00 a.m., on 04.02.2006. Therefore, there is not much delay in commencing investigation after receiving the information regarding cognizable offence. In such cases, the delay on the part of the members of victim’s family in lodging F.I.R., has to be viewed keeping in view all circumstances and a straight jacket formula cannot be applied. Whether the delay in lodging report is properly explained? Whether such explanation for delay is reasonable in the facts of the case and whether there was any attempt by the police or non-police personnel to implicate the accused in the crime? These are some of the questions which need to be addressed when delay occurs in registering F.I.R. The family of P.W.4 is reasonably rich. They have mango gardens, motor vehicles both two wheelers and four wheelers, phones and cell phones and we can even assume that they have man power to attend agricultural and non-agricultural chores. Whey then there was a delay? Why not P.W.1 and P.W.4 informed the police on their cell phone or why not they could send one of their farm servants or one of their friends to police station at a distance of 15 kilometers. These are some of the doubts raised by the defence while cross-examining P.W.1 and P.W.4. The answer and explanation for the delay comes from P.W.4. He deposed that he is staying at the dead body along with other people, that he sent his son to bring his wife and the wife of the deceased, that they came at 12 or 1.00 p.m., and thereafter at 4.00 a.m., he sent P.W.1 to police station. When a son is killed in the background of rumours that the deceased had illicit intimacy with the wife of somebody, one cannot expect P.W.4 to immediately think of police. The marriage of the deceased was performed two years prior to the incident and naturally any father would just think of the son he lost, the effect of such death on the mother and newly married wife of the deceased. That is the reason why P.W.4 sent P.W.1 to fetch mother and wife of the deceased. Indisputably the distance between Vaddivanicheruvu garden and the house of the P.W.4 is five kilometers. Therefore, P.W.1 to walk up his car, go to his house, reveal the tragedy to the ladies in the house and bring them, it would certainly take sometime. Immediately, after getting them to the scene of offence, we cannot expect P.W.1 and P.W.4 to act quickly for lodging a police report. It is the reason why ultimately at 4.00 a.m., P.W.4 dispatched P.W.1 for giving police report. The explanation offered by P.W.4, in the facts and circumstances of the case, is plausible and probable. There are no suspicious improbabilities therein. The version of P.W.4 as noticed supra is also supported by P.W.1. One cannot ignore the fact that the search by P.W.1 and P.W.4 for Giri Babu commenced at about 8.00 p.m., and at the time they located him at 9.00 p.m., when he was dead. From then onwards, till 5.00 a.m., the family had to endure the dark side of the life in the dark of the night. Therefore, lodging of F.I.R., with delay is not fatal to the case of the prosecution. Indeed, as can be seen from the evidence of two eye witnesses, the defence does not seriously dispute the accused and deceased going together in the company of each other and also does not dispute some sort of altercation that ensued in serious consequences. P.W.5 is resident of Gundlakattamanchi. He knows P.W.1 to P.W.4. He also knows P.W.6, who is a medical Doctor. For one year prior to the incident, P.W.5 was taking treatment with P.W.6 from stomach ache. When the Doctor requested to find agricultural land for purchase by his mother in law, he approached Giri Babu, who asked P.W.5 to bring the Doctor on 03.02.2006. On being informed about the same, P.W.6 came to P.W.5 at 4.20 p.m. Both of them went to the house of the deceased at Sankranthipalle. Having come to know that the deceased had gone to Vaddivanicheruvu garden, P.W.5 and P.W.6 went to the garden and parked their motor cycle. P.W.5 deposed as follows. “There I saw the accused and deceased Giri Babu were at a far distance. While I tried to call him the accused had threw a boulder on the head of the deceased Giri Babu and again he lifted the stone and hit twice on the head of the deceased. Then we ran towards them asking why he was hitting with stone. The accused stated that we will also face the same situation and threatened us not to inform anybody. Then I returned from the fields. Since the incident happened before our eyes we did not inform to anybody due to fear of accused and his threats. On the next day at about 8.00 a.m., I went and saw the deceased. Police examined me and recorded my statement where the dead body was lying.” In his cross-examination by the defence counsel, he deposed that the accused and deceased were at a distance of 40 to 50 feet from the place they were moving. In the cross-examination, he also deposed as follows. “I cannot say the distance from which the accused hit the deceased with stone on the head of deceased. After the deceased received a blow on his back side of his head with stone, he fell down. Then the accused hit the deceased on his head. After giving the first blow the accused was holding the stone with his hand and after hitting the deceased for first time again he hit the deceased for second time i.e., two blows.” Further P.W.5 stated that the incident took place at about 5.00 p.m., or 5.30 p.m. On the next day, he went to the scene of offence at 9.00 a.m. On his way to his field, he saw the deceased. He also found P.W.6 at 12 noon and he narrated the incident to the Inspector. He also stated that he did not inform his wife, neighbours, any villagers about the incident and on information that the police came to the scene, he went to see the place without any fear. P.W.6 supports and corroborates P.W.5. He states that on 03.02.2006 at 4.00 p.m., he went to the house of P.W.5. Both of them went to Sankranthipalle at 4.30 p.m. Having come to know that the deceased had gone to Vaddivanicheruvu garden, they went to the garden at 5.00 p.m. There he and P.W.5 saw the deceased and the accused going in front of them and suddenly, the accused took a stone and hit Giri Babu on the head, he later fell down on the ground. Again the accused hit the deceased with the same stone on the back side twice. P.W.5 and P.W.6 ran towards the accused and Giri Babu, and tried to know the reason for such hitting. The accused threatened that both of them would face the same consequences if they reveal to anybody. At that time, the deceased was having the stone in his hands. Therefore, they got scared and they did not approach the accused. P.W.6 then dropped P.W.5 and went to his place. He did not inform anybody. On the next day, he voluntarily went to the scene of offence at 10.15 a.m., and saw P.W.5. Police came there with their dogs. He also stated that though it is his duty to inform the police, he did not do so due to fear of the accused remembering the threats given to him. P.W.5 and P.W.6 mutually corroborate each other. Their presence at the place and the possibility of both of them watching the accused and Giri Babu is highly probable because as per the evidence of P.W.2 and P.W.3, the deceased and accused were seen going towards the garden of deceased Giri Babu and as per the evidence of P.W.5 and P.W.6, they saw the accused hitting the deceased with the stone inside Vaddivanicheruvu garden. As per Ex.P.8 (rough sketch of scene of offence) and in the evidence of P.W.1, the garden of the accused is abutting the garden of the deceased family on the western side. When P.W.5 and P.W.6 went to meet Giri Babu as requested by him it is but natural P.W.5 and P.W.6 went there on the evening of 03.02.2006. Their presence therefore, is not suspicious as argued by learned senior counsel. The improbabilities or incongruity pointed out by learned senior counsel are to be rejected as unsustainable. It is pointed out that there was no mention of presence of P.W.5 and P.W.6 in Ex.P.1 report given by P.W.1. As already discussed above, the crime occurred between 5.00 p.m., and 8.00 p.m., it was detected by P.W.1 and P.W.4 at about 9.00 p.m., and the report was given at 5.00 a.m., on the next day. By the time P.W.2 and P.W.3 informed P.W.1 and P.W.4 nobody was aware as to what happened to Giri Babu. The torchlight search by P.W.1 and P.W.4 resulted in finding the dead body of the deceased. At that time, it is impossible for P.W.1 to mention the presence of P.W.5 and P.W.6. Further, in Ex.P.1, which was drafted by one of the relatives of P.W.1, it was mentioned that on suspicion that his wife had illegal intimacy, the accused brutally killed Giri Babu. If the presence of P.W.5 and P.W.6 had been mentioned in Ex.P.1, report, it would have been highly improbable and pigment of imagination. Insofar as the delay in giving Ex.P.1 is concerned, we have adverted to the same aspect earlier and it is not necessary to repeat the same. The delay has been properly explained by P.W.1 and P.W.4, and therefore, the accused cannot derive any support from the same. Another incongruity pointed out by the accused is the fact that P.W.5 and P.W.6 themselves going to the scene of offence on 04.02.2006, at about 10.15 a.m., or thereafter. When a person is found hitting by another person with a stone twice or thrice in somebody’s presence, it is but natural that curiosity compels those persons to know what happened. When P.W.5 came to know that police came with a dog squad, he was brave enough to go to the scene of offence while P.W.11 was conducting inquest. Similarly, P.W.6 is a medical Doctor who genuinely felt that it is the duty to know as to what happened to the person hit by