THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1653 of 2006 Dated:17.02.2010 Between: Yujini Suresh @ Bayya, And others. …Appellant And State of A.P., Rep.by Public Prosecutor, High Court, Hyderabad. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1653 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) Yujini Krishnaiah (accused No.4), his two sons – Suresh and Subramanyam (accused Nos.1 and 3) and his son-in-law, Rama Mohan Reddy (accused No.2) eke out living as rag pickers. M.Suri Babu is also rag picker. Accused No.4 has two daughters. Elder one is married to accused No.2, and the younger one – Rajeswari, is unmarried. Suri Babu many times stocked Rajeswari and the lady rejected his love. He allegedly bore a grudge. On 25.02.2005, when Rajeswari was having lunch with her elder sister near a four-wheel cart (owned by P.W.4) Suri Babu allegedly inflicted injury on the face of his love. This led to bad blood between accused Nos.1 to 4 and Suri Babu. On 19.08.2005 between 11:00 am and 12 noon Suri Babu was murdered in a grave yard near Balaji Colony of Tirupati Town. The two gravediggers – Munaswamy and Basha, gave a complaint to the Police. The Inspector of Police - P.W.15, investigated Crime No.40 of 2005 under Section 302 read with Sections 34 and 109 of the Indian Penal Code, 1860 (IPC), against accused No.1 to 4. After investigating, the Investigating Officer – P.W.15, filed the charge sheet on the file of the Court of the III Additional Judicial Magistrate of First Class, Tirupati. He took cognisance of the offence under three provisions referred to hereinabove and passed a committal order. The case was then made over to the Court of the V Additional Sessions Judge, Tirupati. After conducting trial in which prosecution examined fifteen witnesses and marked eighteen documents and eighteen material objects, the learned Sessions Judge relying on the evidence of Munaswamy – P.W.1, and Basha – P.W.2, found accused Nos.1 to 3 guilty of the offence punishable under Section 302 read with Section 34 of IPC, but acquitted accused No.4 – Krishnaiah. Aggrieved by the judgment of the learned Sessions Judge in S.C.No.72 of 2006, dated 20.11.2006, accused Nos.1 to 3 filed the instant appeal. The case of the prosecution as disclosed in the charge sheet is as follows. Accused Nos.1 and 3 are brothers. Accused No.2 is their brother-in-law. All the accused eke out livelihood by collecting waste papers and old iron scrap and by selling the same at the shop of P.W.3. The deceased was also doing the same. About 9 months prior to the incident, the deceased Suri Babu fell in love with Rajeswari, the daughter of accused No.4. The deceased used to go to the house of the accused with an intention to marry Rajeswari, but she refused for the same. The deceased bore grudge against Rajeswari. On 25.02.2005 at 1:30 pm while Rajeswari and her elder sister were taking lunch near the four-wheel cart of P.W.4, the deceased came, picked up quarrel and inflicted injuries on her face with knife. In that connection, a case was registered and tried against the deceased and he was convicted and sentenced to undergo imprisonment for six months for the offence punishable under Section 324 IPC. After serving the sentence, the deceased was released from Central Prison, Nellore, in the month of August 2005. While so, on 19.08.2005 at 8:00 am, accused No.4 - Krishnaiah went to Balaji Colony burial ground and found the deceased sleeping on a tomb. He asked the deceased to quit the place or else he would be killed by accused Nos.1 to 3 and the same was informed to P.Ws.1 and 2 who are the watchmen of the burial ground and saying so he went away. After sometime accused Nos.1 to 3 entered into the burial ground and warned P.Ws.1 and 2 to go out from the burial ground. Accused No.3 caught hold the legs of deceased tightly. Accused No.1 hacked the deceased with billhook and caused bleeding injury. Accused No.2 stabbed with bitchuva knife on his body indiscriminately and caused bleeding injuries. Accused No.3 pushed the deceased from the tomb and accused No.1 picked up a boulder and threw the same on the face of the deceased resulting in the death of deceased. P.Ws.1 and 2 saw the incident, went to P.W.10 who is their mastry and informed the same. P.W.10 in turn advised P.Ws.1 and 2 to go to Police Station and report the matter to the Police, on which P.Ws.1 and 2 went to S.V.University Campus, Police Station, gave a report Ex.P1 to P.W.14, who reduced the statement of P.W.1 and registered the same as a case in Crime No.40 of 2005 on the file of the S.V.University Campus Police Station and issued First Information Report (FIR) i.e., Ex.P8 for the offence punishable under Section 302 IPC. P.W.15, who is the Inspector of Police took up investigation, visited the scene of offence conducted inquest over the dead body of the deceased in the presence of P.W.8 and L.W.12 and 13 under Ex.P5 inquest report, prepared Ex.P9 rough sketch, sent the dead body of the deceased for autopsy. P.W.11 conducted autopsy and opined that the deceased died due to wounds and issued Ex.P6 – post-mortem certificate. During the course of investigation, P.W.15 examined the witnesses recorded their statements. On 25.08.2005 at about 7:00 am P.W.15 apprehended accused Nos.1 to 4 and arrested them under the cover of mediatornama in the presence of P.Ws.9 and 13 and also recovered M.Os.14 to 18. After completion of investigation P.W.15 filed charge sheet against accused Nos.1 to 4 under Section 302 read with Sections 34 and 109 IPC before the Court of III Additional Judicial Magistrate of First Class, Tirupati. The learned Counsel for the appellants and learned Public Prosecutor made their submissions. They have also taken this Court through the entire oral and documentary evidence including the FIR – Ex.P8, the charge sheet and the post-mortem report – Ex.P6. The background of the case and the prosecution and defence throw up the only point for consideration whether the prosecution proved the necessary facts warranting the conviction of the appellants under Section 302 read with Section 34 IPC. It is no gainsaying to mention that FIR is an important document in criminal jurisprudence. It not only indicates the path on which the prosecution has to proceed, but also the case which ordinarily is required to be proved by the prosecution. It is altogether different thing that after issuing FIR under Section 154(1) of the Code of Criminal Procedure, 1973 (Cr.P.C), the Police may step on some other relevant aspects of the case, which is related to the crime. In such an event it is always open to the prosecution to place necessary investigative facts in the charge sheet filed before the Court under Section 173(2) of Cr.P.C. Nonetheless, if the case of the prosecution mainly rests on the witnesses to the crime and those eyewitnesses happen to be the persons who reported the crime to the Police the FIR assumes significance. Therefore, we would start appreciating the case of the prosecution by reading Ex.P8 – FIR, prepared on the basis of the report - Ex.P1 given by P.W.1 – Munaswamy, which reads as under. Our native place is Kekaluru Village, Thiruvannamalai Taluk and District, Tamilnadu. I came to Tirupati in the year 1981 and living by doing rickshaw pulling work. Since six years myself and one S.Basha arriving by doing cremation work at Balaji Colony Burial ground. Today i.e., 19.08.2005 at 6:00 am myself and S.Basha went to Burial ground and open the gate lock and went to the Tomb of M.Radhakrishna and lit the light and clean the premises and at about 9.00 A.M. myself and Basha left the burial ground and had Tiffin and again came back to burial ground at 11.00 A.M. and found blood stains on the Tomb of M.Radhakrishna. Immediately went there and saw a male person, aged 32-35 years was fell on the Eastern side of the said Tomb, on his head blood injuries which are hacked with knife and stone hit injuries and he was dead. Some unknown persons killed him by hacked with Knife and hit with big stone. One big stone with blood stains was fallen at the side of the head of the deceased. We enquired in the surrounding places about his name and residence and did not find out. Then we informed to our Mestri Raju. He told us to inform the same to the police station and we came here informed the things happened on your enquiry. On reading I heard and found correct. There are two important aspects, which cannot be ignored from the reading of FIR. P.Ws.1 and 2 according to them came to the graveyard at 6:00 am on 19.08.2005. They were there up to 9:00 am when they went out for breakfast. They came back again at 11:00 am. When they came back they found bloodstains on the tomb of one M.Radha Krishna. They also found the dead body of a male person with bleeding injuries and knife injuries on his head. They reported, “Some unknown persons killed the deceased with knife and stone.” They then informed the same to their mastry – Raju (P.W.10). The sequence of events in Ex.P8 must form benchmark to test the evidence of P.Ws.1 and 2 whom the prosecution relied on as eyewitnesses. Munaswamy (P.W.1) is indisputably a gravedigger. He deposed that his co-worker is P.W.2 – Basha. Both of them take care of the watch and ward duties of burial ground. They also attend to digging graves as and when called for. He deposed that deceased Suri Babu used to come to burial ground for picking up waste papers and sleep in the burial ground. He also deposed that all the accused also visit burial ground quite often. According to him on the fateful day at about 9:30 or 10:00 am Suri Babu was sleeping on a tomb. At that time accused Nos.1 to 3 entered the burial ground and asked P.Ws.1 and 2 to go out. Then in his own words, “they threatened us to go out from burial ground and so we came out from burial ground. After coming out from the burial ground the deceased Suri Babu was murdered with a knife by the accused 1 to 3. Prior to the said incident on the same day at about 7:00 am while Suri Babu was sleeping on a tomb accused No.4 came to burial ground and abused him..”. A careful reading of P.W.1’s version would at once lead to conclusion that he has actually not seen accused Nos.1 to 4 attacking Suri Babu. Further, many facts, which he did not reveal in his report to the Police on 19.08.2005 came into in his chief examination. There is a clear attempt to improve the version of P.W.1. Of course, he denied the suggestion that he did not witness the murder of Suri Babu. In view of the drastic deviation from his version in Ex.P8 and in his deposition as P.W.1, not only that he did not witness the actual incident, but also whatever he is deposing is a simple lie. Why he did so. Explanation is available in the evidence of P.W.2. P.W.2 admittedly is a co-worker with P.W.1. According to him on fateful day accused Nos.1 to 3 entered the burial ground at 10:00 am. They threatened him and P.W.1 to go out of the burial ground. Further P.W.2 says that accused Nos.1 to 3 were armed with knives. Therefore, they went out. After 5 minutes when they came back they saw Suri Babu was murdered and accused Nos.1 to 3 were going away from backside way. The statement in this regard made P.W.2 in the witness box is very important and may be extracted. …On the same day at about 10:00 am A.1 to A.3 entered into the burial ground from the dilapidated back wall of the burial ground. On coming A.1 to A.3 threatened me and P.W.1 to go out of the burial ground to save our lives. At that time A.1 to A.3 were armed with knives. So myself and P.W.1 went outside of the burial ground. After five minutes myself and P.W.1 went inside the burial ground and by that time the Suri Babu was murdered and that A.1 to A.3 were going away from backside way… P.W.2 also deposed that the Police did not record his statement on that day. But at 3:30 pm on the day Suri Babu was murdered Police tied the hands of P.Ws.1 and 2 and threatened to beat them. Therefore, the evidence of P.Ws.1 and 2 was induced by coercion. Before we deal with this aspect we may further analyse P.W.2. Apart from his deposition that his evidence was induced by Police threat, he introduced another element. Accused Nos.1 to 3 entered the burial ground with knives and left within five minutes and in between Suri Babu was murdered. Learned Public Prosecutor points out that this itself is sufficient to point the finger to the accused. We are, however, not able to accept the submission. P.W.1 does not speak of accused Nos.1 to 3 entering burial ground with any weapons, much less, knives. According to P.W.1, accused Nos.1 to 3 threatened P.Ws.1 and 2 to go out of the burial ground and again when they entered after some time they found the dead body. P.W.2 does not agree with P.W.1. He says within five minutes they returned to graveyard when they found dead body of Suri Babu. Therefore nothing in the statement of P.W.2 supports the case of the prosecution. Insofar as threat given to P.Ws.1 and 2, prosecution tried to explain by examining the Mandal Revenue Inspector – P.W.8, and P.W.12 (inquest witness). Their evidence appears to be artificial and an attempt to impeach the veracity of P.W.2. Having regard to the fact that P.W.2 was not subjected to any re-examination, we cannot give any importance to evidence of P.Ws.8 and 12. The entire case of prosecution indisputably rested on the evidence of P.Ws.1 and 2. There are many aspects and an attempt was not made to prove them. P.Ws.1 and 2 admittedly did not witness the incident and therefore it cannot be said that the charge is proved beyond reasonable doubt. Therefore, based on the evidence of P.Ws.1 and 2 it is not safe to convict accused Nos.1 to 3 appellants herein for the charges of murder. We accordingly set aside the impugned judgment, dated 20.11.2006, passed by the learned V Additional Sessions Judge, Tirupati, in S.C.No.72 of 2006, and acquit the appellants/accused Nos.1 to 3. In the result, the Criminal Appeal is allowed, and accused Nos.1 to 3 shall be set at liberty forthwith. _______________ (V.V.S.RAO, J) _____________________________ (SAMUDRALA GOVINDARAJULU, J) 17.02.2010 vs