THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE R.KANTHA RAO Crl.A.No.186 of 2008 Date of Judgment: 23-11-2011 Between: 1. Muddam Pochaiah and others. ..Appellants and State of A.P. rep. by P.P., High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.186 of 2008 Oral Judgment: (Per Hon’ble Sri Justice R.Kantha Rao) 1. We have heard Sri C.Praveen Kumar, learned counsel appearing for the appellants/A2 to A4 and the learned Public Prosecutor appearing for the State. The case of the prosecution is as follows: 2. P.W.1 is the wife, P.W.2 is the son, P.Ws.3 to 5 are the daughters, P.W.6 is the brother, P.W 8 is the sister-in-law of the deceased and P.W.7 is an independent witness. A-1 is the son-in-law of the elder brother of the deceased. A-1 developed illicit intimacy with one Bicham Kanakavva and was ill treating his wife. On the said issue, the deceased chastised A-1 and slapped him. On that A-1 bore grudge against the deceased. One month later i.e., on the date of the incident whileP.Ws.1 to 7 were sleeping on the floor in the cattle shed and the deceased was sleeping on the cot, in the mid night A-1 along with A-2 to A-4 entered the cattle shed and A-1 axed on the face and then A-2 to A-4 axed the deceased. P.Ws.1 to 7 witnessed the same. On the next day morning, P.W.1 lodged a report Ex.P-1. On 31-3-2000 at about 1 PM on receiving Ex.P-1 from P.W.1, P.W.15, the then Sub-Inspector of Police registered a case in Cr.No.19/2000 and issued FIR Ex.P-8. He visited the scene of offence and held inquest over the dead body in the presence ofP.Ws.9 and 10. Inquest report is Ex.P-2. He forwarded the dead body for postmortem examination. 3. On 1-4-2000 on requisition, P.W.13-Civil Assistant Surgeon, Government Area Hospital, Kamareddy held autopsy over the dead body of the deceased and opined that the cause of death was due to hemorrhagic shock due to chopped injury on the face. Ex.P-6 is the postmortem report. 4. On 1-4-2000, P.W.14, the then Inspector of Police, took over further investigation. He visited the scene of offence and prepared an observation report under Ex.P-3 in the presence of P.W.9. On 20-4- 2000, he apprehended A-2 and A-3 and at their instance,P.W.14 recovered two sticks in the presence ofP.Ws.11 and 12 under cover of panchanamas-Exs.P-4 and 5 respectively and on 3-5-2000 he further apprehended A-4 and sent him for remand. He forwarded the material objects to RFSL. After receiving relevant documents and on completing investigation, P.W.14 filed charge sheet. 5. To bring home the guilt of the accused for the offence for which he stood charged, the prosecution examined 15 witnesses and marked 8 documents. 6. After closure of prosecution evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no oral evidence was adduced, but Ex.D-1 was marked. 7. The prosecution, in this case, examined eight eyewitnesses —P.Ws.1 to 8 to prove the charge under Section 302 IPC against the appellants. Among the eyewitnesses, P.Ws.1 to 6 and 8 are close relatives of the deceased and P.W.7 is said to be an independent witness. Apart from the said oral evidence the prosecution sought to establish recovery of two sticks basing on the disclosure statement of A2 and A3. The Investigating Officer also claims to have recovered axe but axe was not produced before the Court, and the sticks which were said to be recovered were also not produced before the Court. The factum of recovery of axe can be noticed from the deposition of P.W.14—Inspector of Police, one of the investigating officers, who stated before the Court that on his requisition the clothes of the deceased and that of A1 were sent to Forensic Science Laboratory along with one axe that was recovered by Sub-Inspector of Police, but no evidence was adduced by the prosecution about the factum of recovery of axe. Obviously, it was not recovered pursuant to the disclosure statement of any of the accused. 8. According to the prosecution, two sticks were recovered in pursuance of the disclosure statement made by A2 and A3 by P.W.14 —Inspector of Police in the presence of P.W.11 and another mediator. The prosecution examined P.W.11, but P.W.11 did not support the prosecution story on the factum of recovery. Therefore, the only evidence available on the factum of recovery of two sticks is the evidence of P.W.14 one of the Investigating Officers. 9. P.W.13 is the autopsy surgeon. Her evidence discloses that on 01-04-2000 on a requisition from Lingampet police, she conducted postmortem examination on the body of the deceased in the Government Hospital, Yellareddy and found the following external injuries on the dead body: 1. Chopped wound on the face extending from left side of the face to the nose obliquely measuring about 6 x 3 x 2 cms. 2. Fracture of the upper jaw. 3. Lacerated wound on the right side of the neck measuring about 4x2x2 cms. 4. Lacerated would at the Jular botch measuring about 3x2x2 cms. 10. According to P.W.13, cause of death of the deceased was due to hemorrhage and shock due to chopped blunt injury on the face. In the cross—examination she admitted that all the injuries are similar in character and are possible by stick. She also specifically admitted that the injuries are not possible by an ordinary stick. 11. It is basing on the above evidence, the learned trial Court arrived at the conclusion that the prosecution could be able to establish the guilt of the appellants for the charge under Section 302 IPC simplicitor, convicted for the said charge and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/- each. In default of it, to suffer simple imprisonment for three months each. 12. Now, the point for determination before us is: as to whether the learned trial court is justified in believing the evidence of eyewitnesses and the remaining witnesses, which is referred above, to reach the conclusion that the prosecution could be able to prove the guilt of the accused beyond all reasonable doubt. 13. Sri C.Praveen Kumar, learned counsel appearing for the appellants pointed out certain inconsistencies in the prosecution story as well as evidence of the prosecution witnesses. They are that: admittedly, after the murder of the deceased in the present case the villagers killed the first accused even prior to lodging of the FIR by P.W.1. But FIR does not contain the name of the first accused. According to the prosecution, he is the main perpetrator of the crime. Further, according to the learned counsel, none of the injuries found on the body of the deceased, as per the version of the autopsy surgeon are caused by sticks, but the prosecution sought to establish that some accused beat the deceased with axes. Learned counsel would also further submit that the prosecution did not furnish any reason as to why all the family members of the deceased, viz., P.Ws.1 to 6 and 8 slept in a hut along with the deceased. The Investigating Officer has not prepared any sketch plan of the scene of offence, which is vital and very important to know as to whether the hut would accommodate seven eyewitnesses and the deceased. For these and other grounds learned counsel submits that it is a case where the accused are entitled for acquittal but the learned trial court recorded conviction and, therefore, he seeks to set aside the conviction and sentence passed against the appellants. Learned counsel also submits that there is inordinate delay in lodging FIR which was not property explained by the prosecution. 14. On the other hand, learned Public Prosecutor would submit that as many as eight witnesses were examined by the prosecution, though seven out of them are close relatives, their testimony could not be discarded due to minor inconsistencies and thus he supports the conviction and sentence passed by the trial court. 15. We have thoroughly scrutinized the evidence of the witnesses and perused the judgment of the learned trial court in the light of the submissions made by the learned counsel appearing for the appellants as well as learned Public Prosecutor appearing for the State. 16. It is true that the FIR need not contain all the details and also the names of all the accused. At the same time omission to mention important facts cannot be ignored. Non-mentioning the names of all the accused, which ought to have been mentioned, creates any doubt as to veracity of the prosecution case. In the instant case, the name of the accused who caused the fatal injury due to which deceased died was not mentioned. A1 being close relative it is difficult to believe that P.W.1 would not refer the name of A1 in the FIR, despite the fact that he was murdered by the villagers subsequently after the murder of the deceased. If really P.W.1 witnessed the incident, he ought to have mentioned in the FIR about participation of the first accused in the offence; omission of this important fact is certainly fatal to the case of the prosecution. 17. The eye-witnesses though generally spoke about their witnessing the incident, if we analyze their evidence it seems that subsequent to the attack they saw the deceased in a pool of blood. Further, P.W.7 was sleeping in a neighbouring hut and it is not possible for him to directly witness the incident. Obviously, as it appears from the prosecution case that first accused was killed by the villagers on the ground that he committed the murder of the deceased. If really the murder of the deceased was committed by A1 to A4, the villagers also would have attacked A2 to A4 i.e. appellants herein. 18. Learned counsel appearing for the appellants contends that in fact the appellants—A2 to A4 have nothing to do with the offence, but they were falsely implicated in the case on the ground that they are the friends of A1. Non-mentioning of name of A1 in the FIR coupled with the fact of villagers not attacking A2 to A4 probablises the version of learned counsel appearing for the appellants that the appellants were fixed in this case as an after thought. 19. Further, it is well settled proposition of law that if the account furnished by the eye-witnesses is reliable and truthful, even if the evidence is inconsistent with the medical evidence, the same can be accepted notwithstanding any minor inconsistencies inb their version with the medical evidence. But in a situation where medical evidence rules out the possibility of happening of incident in a manner spoken to by eye-witnesses certainly eye-witnesses account becomes suspect. 20. In the instant case, all the eye-witnesses have stated in one voice that appellants as well as A1 attacked the deceased with sticks and they also hacked the deceased with axe. Injury No.1 which was found on the face and extending to the nose of the deceased by the autopsy surgeon on the body of the deceased can be said to be caused by an axe. The remaining injuries are not possible if the deceased was hacked by the assailants with axes. The prosecution came forward with a theory at subsequent stage of the investigation that the accused attacked the deceased with the weapon of axe as well as sticks. Further, the medical evidence clearly rules out possibility of injuries by an ordinary stick. Therefore, in this case, medical evidence clearly rules out happening of the incident as spoken to by the eye-witnesses examined by the prosecution. 21. For all these reasons, we are of the considered view that P.Ws.1 to 8 did not witness the actual occurrence. They only saw the dead body of the deceased after the assailants left the place of incident. The entire evidence of the eye-witnesses does not stand to legal scrutiny, since it is full of material inconsistencies and discrepancies. Non-furnishing the reason as to why all the family members of the deceased slept in the cattle shed without sleeping in the hut is fatal to the prosecution case. 22. In view of the above, we are of the considered view that the learned trial court ought to have disbelieved the evidence of eye- witnesses in this case, as they appear to be planted for the purpose of this case. The learned trial court without properly scrutinizing the evidence of the eye-witnesses convicted and sentenced the appellants as aforementioned. 23. For the reasons stated hereinabove, we are inclined to set aside the conviction and sentence passed against the appellants/A-2 to A-4 by the learned trial court. Consequently, the conviction and sentence passed against the appellants/A-2 to A-4 by the trial court for the charge under Sec.302 IPC simplicitor is set-aside and they are acquitted of the said charge. The appellats/A-2 to A-4 shall be set at liberty forthwith, if they are not required in any other case. 24. The Criminal Appeal is accordingly allowed. __________________ A. GOPAL REDDY, J _______________ R.KANTHA RAO, J Date: 23.11.2011 Murthy/Kmr