THE HONOURABLE SRI JUSTICE D.S.R.VARMA AND THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.1711 of 2007 ORAL JUDGMENT: (Per the Hon’ble Sri Justice D.S.R.Varma) Heard learned counsel appearing for the appellant- A-1 as well as learned Public Prosecutor appearing for the respondent-State. 2. This Criminal Appeal, filed under Section 374 (2) of the Code of Criminal Procedure, 1973, is directed against the judgment, dated 21.11.2007, passed by the III Additional District and Sessions Judge (Fast Track Court), Nellore, in Sessions Case No.266 of 2005, convicting A-1 of the offence punishable under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs.500/-, in default to undergo simple imprisonment for three months. 3. The case of the prosecution, in brief, is that P.W-1 is the father and P.W-12 is the wife of one Moulali (hereinafter referred to as “the deceased”); that they are residents of Thallur village; that one Mariyamma, who is a widow, had illegal intimacy with A-1; that the deceased, P.W-17 and others appear to have advised her to go to some other village and live there and she shall not move with A-1 in that village; that about six months prior to the death of the deceased, A-2 and one Avula John threatened the deceased and others with knives; that the deceased and others caught hold of A-2 and Avula John and handed over them to P.W-13, who is a village elder; that A-2 threatened the deceased and others with dire consequences; that, while so, on 08.06.2004, at about 2.30 pm., when the deceased and P.W-2 went to watch a movie, P.W-1 also went to watch the same movie; that P.W-1 sat in the lower class whereas the deceased and P.W-2 sat in the upper class; that, around 5 or 5.30 pm., A-2 and A-4 came there and called the deceased, and the deceased accompanied them; that P.W-1 entertained a doubt and went out of the cinema hall and found that A-1 was hacking the deceased on the head with an axe; that when the deceased started running, A-2 to A-4 chased and caught hold of him and A-1 hacked the deceased with an axe again; that when P.W-1 raised cries, A-2 threatened him with dire consequences and thereafter all the accused left the place; that P.W-1 almost without any loss of time gave a complaint to Bitragunta Police Station, basing on which Crime No.81 of 2004 was registered for the offences punishable under Sections 302 and 307 read with 34 IPC and that after completion of all the necessary formalities, charge sheet has been filed. 4. When charges under Sections 302, 307 and 506 IPC were framed against A-1, read over and explained to him in Telugu, he denied the offences and claimed to be tried. 5. In order to substantiate its case, the prosecution examined P.Ws.1 to 32 and got marked Exs.P-1 to P.43, besides the material object M.O-1, on its behalf. On behalf of defence, neither oral nor documentary evidence was marked. 6. The trial Court, having considered the entire material, including the evidence, both oral and documentary, available on record, recorded a finding that A-1 alone was responsible and that A-2 to A-4 were not responsible for the death of the deceased and accordingly convicted and sentenced A-1, as stated supra, and acquitted A-2 to A-4 with which they were charged. Aggrieved by the same, A-1 has preferred the present Criminal Appeal. 7. The only point that arises for consideration, in this Criminal Appeal, is as to whether the trial Court had appreciated the evidence on record in a right perspective before recording the order of acquittal insofar as A-2 to A- 4 and conviction of A-1 for the offence punishable under Section 302 IPC. 8. The only eyewitness to the said incident is P.W-1 and the conviction of A-1 was based on the evidence of P.W-1 alone and the facts put forth by him before the trial Court. Except the evidence of P.W-1 and P.W-16, the Doctor, no other piece of evidence is relevant for the purpose of examining this case. Hence, the other evidence on record is not being referred to. 9. P.W-1 stated to the effect that there were some earlier incidents due to which A-1, A-2 and A-4 were inimical to the deceased. The entire fulcrum of the case is that one Mariyamma, who is a widow, allegedly had illicit intimacy with A-1 and that the deceased and others advised her to leave the village and go somewhere else and live there. There is no much of evidence on record in this regard except the oral evidence of P.W-1. P.W-1 faintly stated about the illegal intimacy of A-1 with the said Mariyamma. 10. The trial Court, having considered all the aspects on record, arrived at a conclusion that there was no enmity between A-2 to A-4 with the deceased and therefore, the evidence of P.W-1 was not believed insofar as the involvement of A-2 to A-4 in the said offence. But, however, arrived at the conclusion that A-1 and the deceased were inimical to each other earlier, as stated by P.W-1. 11. In this regard, it is to be noted that P.W-1 in his evidence stated about the inimical terms not only between A-1 and the deceased but also between A-2 and the deceased specifically. In other words, the trial Court based the motive on the part of A-1 alone and segregated A-2 to A-4 as having no enmity with the deceased, which is not correct, at least, to the extent of A-2. 12. Even otherwise insofar as the facts narrated by P.W-1, the same are with regard to the same course of transaction, in such an event, as contemplated under Section 6 of the Indian Evidence Act, there cannot be any possibility to exclude A-2 to A-4 from convicting and base the order of conviction of A-1 alone. Having not believed the evidence of P.W-1, the punishment that is to be given to A-2 to A-4 also ought to have been given to A-1, inasmuch as, all the facts that have been narrated by P.W-1 had taken place in the same transaction. 13. Basically, the evidence of P.W-1 is not trustworthy, as expected, though he appears to be a natural witness. The act of P.W-1 in going to the same movie at the same time as that of the deceased, sitting in the lower class and watching what was going on in the upper class, which is above his head, is something appears to be not very natural. It is to be further seen that P.W-1 stated that he watched A-2 to A-4 entering into the cinema hall around 5 or 5.30 pm., and taking away the deceased out of the cinema hall. All this happened while the cinema was going on, and in which case, it is difficult to watch each and every person entering or going out of the cinema hall, particularly watching what was happening in the upper class, over his head and shoulders, by sitting in the lower class. The evidence of P.W-1 appears to be somewhat unnatural and therefore, the same cannot be treated as totally trustworthy. 14. Furthermore, in our considered view, the appreciation of the evidence on record by the trial Court was not on proper lines insofar as A-1 and as a result, we are of the view that the benefit of doubt that had been accorded to A-2 to A-4 also could have been accorded to A-1 as well, inasmuch as, all the events had taken place in the same course of transaction, as contemplated under Section 6 of the Indian Evidence Act. 15. For the aforementioned reasons, we are of the view that the impugned judgment insofar as A-1 has to be set aside. 16. In the result, the Criminal Appeal is allowed, setting aside the impugned judgment, dated 21.11.2007, in Sessions Case No.266 of 2005, passed by the III Additional District and Sessions Judge, (Fast Track Court), Nellore, in convicting Accused No.1 for the offence under Section 302 IPC, and accordingly, he is acquitted of the said offence and he shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellant-Accused No.1 shall be refunded to him. The bail bond, if any, shall stands cancelled. ______________________ JUSTICE D.S.R.VARMA _____________________________ 12th April 2010 JUSTICE B.CHANDRA KUMAR dr