HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.732 OF 2009 DATED: 18.12.2009 BETWEEN: Syed Yahiah .. Appellant And State of A.P. Rep. By its 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.NO.732 OF 2009 JUDGMENT: (Per RKR,J) The appellant Syed Yahiah is accused No.2 in Sessions Case No.88 of 2006 on the file of the Court of the I Additional Metropolitan Sessions Judge, Hyderabad. 2. The appellant along with the first accused was tried by the learned Metropolitan Sessions Judge Hyderabad for the charge under Section 302 read with Section 34 of IPC and was convicted along with A1 for the said charge and was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-. 3. Earlier A1 filed Criminal Appeal No.1704 of 2006 assailing the conviction and sentence passed against him which was disposed of by us on 24.06.2009 and considering the material on record, we set aside the conviction against A1. 4. Now this appeal is preferred by the appellant herein who is A2 in the same case. 5. We have heard the learned counsel appearing for the appellant-A2 and the learned Public Prosecutor representing the State. 6. The prosecution case in brief is like this: PW.1-M.A.Qader, is a resident of Nehrunagar Colony, Madannapet, Hyderabad on 13.09.1999 at about 10.30 PM while he was conversing with his friends Harshad and Ghouse (LWs4 and 3) near the water tap in Nehrunagar, he heard the cries of his brother-in-law, the deceased Mohammed Rasheed Arfaat as ‘bachao bachao’, whereupon he and his friends ran towards Raheem kirana stores and found the appellant and A1 attacking and stabbing the deceased with swords, and at their intervention, the appellant and A1 threatened them by showing swords and left the place of occurrence after inflicting injuries on the deceased. 7. After the deceased fell down with severe bleeding injuries, PW.1 shifted him to Madannapet Police Station at about 22.45 hours on 13.09.1999. In view of serious condition of the deceased, he was referred to Osmania General Hospital where the duty doctor declared him dead. PW.15 – Inspector of Police proceeded to the Hospital and recorded the statement of PW.1 and on the strength of the said statement, he registered a case in Crime No.76 of 1999 and issued FIR. After completing investigation, he filed charge sheet against the appellant-A2 and A1. 8. The motive for commission of offence according to the prosecution is said to be that the incident occurred at mid-night on 12.09.1999, wherein the deceased slapped A1 twice or thrice and keeping this in mind, the appellant-A2 and A1 killed the deceased. PW.7- the doctor who conducted postmortem examination over the body of the deceased opined that the deceased died because of multiple stab and cut injuries on the head. 9. The prosecution in order to establish the guilt of the appellant-A2 and A1 before the learned I Additional Metropolitan Sessions Judge, examined PWs.1 to 15, marked Exs.P.1 to P.16 and MOs 1 to 11. On behalf of the appellant, Exs.D-1 to D-9 were marked. 10. The learned trial Court upon considering the entire material on record, convicted the appellant-A2 for the offence under Section 302 read with Section 34 of IPC and sentenced him to punishment as mentioned above. 11. The point for consideration in this appeal is: Whether the order of conviction and sentence passed by the trial Court against the appellant-A2 can be sustained? 12. The entire prosecution case rested on the evidence of PW.1- M.A.Qadeer and PW.2-Kum. Ishrath Fatima Begum, who are said to be the eye witnesses. PW.1 who is no other than the brother- in-law of the deceased stated in his evidence before the trial Court that on 13.09.1999 at 10.30 PM while he was conversing with his friends Arshad and Ghouse (LWs.4 and 3) near water tap at Nehrunagar, he heard the cries of his brother-in-law shouting as ‘bachao bachao’. He heard the cries of the deceased from the distance of 400 to 500 yards. According to PW.1, A1-Syed Afzal and another person were attacking the deceased with Talwars in front of the Kirana Stores. It is also his version that he and his friends tried to rescue the deceased, but the appellant-A2 and A1 tried to attack them also and on that, they ran up to some distance from the place of occurrence and the deceased fell unconscious near the wall of Maqbool’s house with injuries and thereafter, the appellant-A2 and A1 ran away. Here, it may be noticed that PW.1 did not mention the name of the appellant-A2, and referred him in his evidence as the friend of A1. 13. PW.2 is also a related witness. The deceased is no other than the mother’s younger sister’s brother of PW.2. PW.2 claims to have witnessed the incident while standing in front of the door of her house at 10.30 PM after having dinner. Her evidence is that she first saw the deceased coming towards their house, thereafter she saw the appellant and A1 coming on a scooter from the rear side of the deceased, A1 attacked the deceased on the head with Talwar and thereafter A1 and his friend (appellant) stabbed the deceased. She further deposed that she raised cries loudly on seeing the incident and thereafter the appellant and A1 left the place after making some galata. So many people gathered at the place of occurrence and they found the deceased lying with injuries in front of Raheem Kirana Stores in unconscious state. 14. From the evidence of PW.1, it can be understood that he and his friends rushed to the place of occurrence only on hearing the cries of the deceased from a distance of 400 to 500 yards. According to PW.1, the deceased fell down unconscious near the wall of Maqbool house, whereas PW.2 stated that she saw the deceased ultimately fell down unconscious in front of the Raheem Kirana Stores. Ex.P.10 rough sketch indicates that the deceased was found lying with injuries by the side of the compound wall of Maqbool’s house. According to the evidence of PW.1, the attack commenced at Raheem Kirana Stores, he saw the appellant and A1 hacking the deceased at the said kirana Stores and ultimately the deceased ran towards Maqbool’s house and thereafter fell down there and became unconscious with bleeding injuries near Maqbool’s house. If that is so, there must be bloodstains from Raheem Kirana Stores up to Maqbool’s house, but curiously PW.15 did not speak about the existence of any such bloodstains nor mentioned in Ex.P.10 rough sketch prepared by him. According to PW.1, he was at a distance of 400 to 500 yards when he heard the cries of the deceased. PW.8, the Autopsy Surgeon noticed as many as 24 injuries on the body of the deceased. Either PW.1 or PW.2, who claims to have witnessed the incident from the beginning from a distance of 1500 yards did not state as to how the attack was commenced and in which manner. Both these witnesses failed to narrate the incident and the manner in which the offence was perpetrated. Since the incident took place at 10.30 PM, though, there were street lights, it is very difficult for PW.1 or PW.2, who are close relatives of the deceased to witness the incident from a distance of 400 to 500 yards or 1500 yards respectively. Further the incident admittedly took place at 10.30 PM and it is almost impossible for PW.1 or PW.2 to witness the incident from such a distance. Though, PWs.1, 2 and 3 stated about the disputes between the deceased and the first accused relating to real estate business, their evidence in so far as motive part is concerned, has no relevancy against the appellant-A2 since nothing was stated against him except that he is a friend of A1. However, as the case is based on the evidence of PWs.1 and 2, who are eyewitnesses, the role of motive is not much significant. 15. Another piece of evidence on which the prosecution tried to rely upon is the recovery of MOs1 and 2, the weapons in pursuance of the alleged disclosure statement made by A1 before PW.15 – investigating officer in the presence of PWs.7 and 12, who are the mediators, PW.12 did not support the prosecution on this aspect, whereas PW.7 supported the prosecution version to some extent. According to PW.15-the investigating officer, recovery of MOs1 and 2 were made in pursuance of disclosure statement made by the appellant-A2 and A1 from the house bearing No.17-1-182/8/A, Nehrunagar from which PW.15 seized swords, which are marked as MOs1 and 2 from the sun shade of the house which is an open place. But, as could be seen from the evidence of PW.7, the said recovery was made only basing on the confessional statement of A1 and A1 led the investigating officer and mediators to the house and showed talwar which is lying in the said house. However, this witness in his cross-examination deposed that PW.15 told him about the incident and showed him the weapon stating that it was recovered from A1. Thus, the version of PW.7 in the cross-examination demolished the entire theory of prosecution relating to recovery of MOs1 and 2 in pursuance of the alleged disclosure statement made by the appellant and A1. In any event, since the alleged recovery was made basing on the confession of A1, it has no relevance against the appellant, who is A2. Therefore, the recovery evidence in this case is also totally unconvincing and no relevance can be placed on the said evidence. 16. Considering all these aspects, we have already extended the benefit of doubt to A1 by our judgment in Criminal Appeal No. 1704 of 2006. As regards A2, except stating that he is friend of A1, no motive is attributed to him to commit the grave offence against the deceased. No test identification parade was conducted to identify A1 and the appellant herein during the course of investigation. Therefore, the prosecution is not at all satisfactorily proved the participation of appellant-A2 and he is entitled for benefit of doubt. 17. For the foregoing reasons, the conviction and sentence passed by the trial Court against the appellant-A2 is liable to be set aside and accordingly, the same is set aside. The appellant- A2, who is now undergoing jail sentence in connection with this case, shall be set at liberty forthwith, if he is not required in any other case. The fine amount, if any paid by the appellant-A2, shall be refunded to him. The appeal, therefore, succeeds and the same is allowed. _________________ D.S.R.VARMA,J ___________________ R.KANTHA RAO,J Dated: 18.12.2009 Kvrm/msr