IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1754 OF 2007 Between: Badithela Balaraju and others … Appellants And State of A.P., rep. by Public Prosecutor, Hyderabad … Respondent This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1754 OF 2007 JUDGMENT: - (Per Hon’ble Sri Justice Raja Elango) The appellants/accused Nos.1, 3, 4 and 5 filed this criminal appeal questioning the conviction and sentence recorded against them by the III Additional Sessions Judge, Kurnool, vide judgment dated 15.11.2007, whereby they were convicted for the offences punishable under Section 302 of the Indian Penal Code, 1860 (for brief, “IPC”) and were sentenced to undergo imprisonment for life. 2. The prosecution story as unfolded during the course of trial is briefly stated as under:- The accused and one Anchula Ravibabu @ Bujji @ Ravi Kumar (hereinafter referred to as, “the deceased”) are the residents of Bytipeta street of Nandyal town of Kurnool District. A1 to A3, A7 and A8 are own brothers. A4 is the elder brother of A5. A6 and A9 are close friends of other accused. On 28.08.2006, the deceased, P.W.1 and P.W.5 went to attend calls of nature and while P.Ws.1 and 5 were returning at 11:30 PM, when they were proceeding on the road in front of the house of Mala Dasthagiri of Bytipeta, A1 to A9 who were way laid, formed themselves into unlawful assembly armed with hunting sickles and in prosecution of their common object to kill the deceased, surrounded him and that A1 to A9 shouted at the deceased as “Bujjiga Meru Maa Vodu Vadde Subbarayudunu Kodatharaa, Champandiraa Naa Kodukunu” and so saying they pounced against the deceased and hacked him with hunting sickles on his body indiscriminately. A1 to A9 inflicted as many as 18 injuries and also threatened P.Ws.1 and 5 to face dire consequences if anybody interfered with their life. Thereafter P.Ws.1 and 5 took the deceased to the Government Hospital, Nandyal for treatment. P.W.1 also presented report to the police under Ex.P1 on 30.08.2006 at 01:00 AM i.e., on 31.08.2006. A death intimation was also received by the Head Constable 1480, on 30.08.2006 at 00:15 hours and consequently the F.I.R. was registered by the Assistant Sub- Inspector of Police, P.W.9. After registration of the F.I.R., the Inspector of Police (P.W.11) took up investigation. During the course of investigation, P.W.11 conducted inquest over the dead body of the deceased; sent the dead body for post mortem examination; visited the scene of offence; prepared rough sketch and observation report; seized the material objects; arrested the accused and recorded their confessional statements and after completion of investigation, filed the charge sheet. 3. On committal, the learned Sessions Judge, framed charge under Sections 147, 148 and 302 IPC and when the same were read over to the accused in Telugu, they denied the same and claimed to be tried. 4. In support of its case, the prosecution got examined P.Ws.1 to 11 and got marked Ex.P1 to P16 and M.Os.1 to 17. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence produced against him. On behalf of the accused, D.W.1 was examined and Ex.D1 was marked. 5. The learned Sessions Judge on appreciation of the oral and documentary evidence found the accused guilty of the charge framed against him and sentenced him to imprisonment as aforementioned. 6. Heard both sides and perused the entire records. 7. The point that arises for consideration is: - “Whether the prosecution proved the guilt of all the accused beyond reasonable doubt?” P O I N T : - 8. According to the prosecution, P.W.1-brother of the deceased, who is an eye witness to the occurrence, deposed in his evidence that on the fateful day by 11:00 PM he along with his brother and P.W.5 went to answer the calls of nature in the graveyard and while they were returning, he saw the accused A1 to A9 armed with hunting sickles came in the opposite side and A1 questioned the deceased why he beat A5, while questioning all of them attacked the deceased with sickles and thereby he sustained injuries. Then he has taken his brother in an auto and admitted him in the hospital and that his brother presented a complaint in his own hand writing to the police under Ex.P1. 9. P.W.2, who is the mother of the deceased, deposed before the Court that on hearing the cries of the deceased she came out of the house and proceeded towards Anjaneya Swamy temple and there she saw all the accused armed with sickles proceeding towards Anjaneya Swamy temple. Admittedly she is not an eyewitness to the occurrence and also she has stated that she saw P.W.1 sitting in a place and weeping. P.W.3, who is also a resident of the same place, deposed that in the mid night while she woke up for giving water to her husband, she heard the cries and came to Madiga Sanjamma’s house. On hearing such cry, she stated as follows: ‘I found that there was a murder at Mala Dastagiri’s house. I also found A1, A3, A5, A4 and I do not know the names of the remaining persons. I saw the above persons with hunting sickles. They murdered a person. I saw the above accused with the help of burning lamp. The accused raising cries went towards Anjaneyaswamy temple. P.W.1 shifted the injured to the hospital.’ 10. P.Ws.4 and 5 turned hostile and did not support the case of the prosecution. P.W.6, who is working as a Village Revenue Officer, is a witness to the inquest and he signed in the inquest report and also he is witness to the recovery of blood stained clothes of the deceased under M.Os.1 to 5. He also signed Ex.P5 for the said seizure. P.W.7 turned hostile and did not support the case of the prosecution. 11. P.W.8, who is the head constable attached to the hospital, deposed that he was on duty in the government hospital. On 30.08.2006 he received M.L.C-cum-death intimation at 12.15 mid night under Ex.P11. He handed over Ex.P4 to the A.S.I., I town police station at about 01:00 AM. P.W.9, who is the Assistant Sub-Inspector of Police, I Town police station, Nandyal, deposed that on 29/30.08.2006 at 01:00 AM when he was incharge of the police station, he received the death intimation from the head constable P.W.8, which is marked as Ex.P4. At that time P.W.1 also came to the police station and presented a written complaint Ex.P1 and he registered it as crime No.96 of 2006 for an offence under Section 302 IPC. 13. P.W.10 who conducted autopsy over the dead body of the decreased deposed that on receipt of requisition from I Town P.S., he conducted post mortem examination on the dead body of the deceased and issued Ex.P12 post mortem certificate opining that the deceased might have died of shock and haemorrhage due to injuries to vital organs heart and brain and found the following injuries: 1. An incised wound 6” X 1” bone deep extending vertically on left side from chin to temporal region. Edges clear cut. Fracture maxilla present and blood clot present. 2. Clean incised wound 5” X 1” bone deep extending horizontally from the tragus of the right ear to the middle of he lower eyelid. Blood clot present. 3. Clean incised wound 2 ½“ X 1” bone deep. Horizontal in direction over the frontal region in the midline. 4. Clean incised wound 2” x 1” bone deep obliquely placed over the right frontal region. 5. Clean incised wound 5½” X ½” bone deep extending horizontally from parietal bone to the mastoid process of right ear. 6. Clean incised wound 2” X ½” bone deep oblique in direction over the left occipital region. 7. Clean incised wound 3½” X ½” bone deep extending horizontally over the vertex. 8. Clean incised wound 3½“ X ½” bone deep vertical in direction extending from right occipital region to the vertex. with fracture occipital bone exposing the brain. 9. Clean incised wound 2” X 1/2“ bone deep oblique in direction over the left occipital region. 10. Clean incised wound 2” X 1/2“ bone deep vertical in direction over the right occipital region. 11. Clean incised wound in direction 3” X 1“ muscle deep over and above the right scapula, spindle shaped with clear edges. 12. Clean incised wound 2” X 1“ bone deep, spindle shaped horizontal in direction over the spine in the interscapula region. 13. Clean incised wound 3” X 1” bone deep oblique in direction spindle shaped over the right loin. 14. Incised wound spindle shaped 3” X 1” muscle deep vertical in direction on left side of spine. 15. Clean incised wound 3” X 1” bone deep over the right chest above the nipple oblique in direction. 16. Clean incised wound oval in shape 5” X 3” muscle deep extending horizontally from left deltoid to the lateral and of left clavicle. 17. Chapped wound below the left elbow bone deep involving the elbow join with fracture radius and upper 1/3 ulna. 18. Clean incised wound 51/2” X 21/2” bone deep over the lateral aspect of right thigh extending from greater trochanger to the middle of the thigh. 13. P.W.11 who is working as a Inspector and who took up the investigation on the basis of the first information report registered by the A.S.I., deposed about conducting of inquest over the dead body; sending the dead body for post mortem examination; examination of witnesses; recording the statements; and after obtaining the post mortem report and the F.S.L. Report filed the charge sheet. 14. On behalf of the appellants, D.W.1 is examined, who is a Civil Assistant Surgeon, Nandyal hospital deposed that he examined the deceased and recorded in the hospital that the deceased was attacked by unknown persons on 29.08.2006 at 11:30 PM near his house. He further deposed that the said Pradeep Raju stated the contents in Ex.D1 and sent the death intimation Ex.P4. 15. Learned sessions Judge disbelieved the evidence of P.W.1, who claims to be the eyewitness to the occurrence. P.W.2 is not an eyewitness to the occurrence. Hence, the learned sessions Judge has not taken into account the evidence of P.W.2. But the learned Sessions Judge placed reliance on the evidence of P.W.3 and convicted the accused. On proper appreciation of the evidence of P.W.3, we could understand that she is not an eyewitness to the occurrence. She reached the place after the commission of the offence. Even assuming for a moment that she is an eye witness to the occurrence, she stated before the court that she know the names of A1, A3, A4 and A5 i.e., the appellants herein, but she has not stated any specific overt act to the accused persons. Further she has not explained before the court as to how she know the accused persons; what is the relationship; and the nature of the work of the accused. In a case where witness identifies the persons as persons involved in the crime, it is the primary duty of the prosecution to establish the knowledge regarding the persons those who participated in the crime. Without informing anything about the accused persons, simply informing in the court that I know the accused and their names, that itself cannot be taken into account. If such a practice is encouraged in each and every case, there is every possibility of introducing some persons and identifying the persons in the court as accused and stating that they are the persons who committed the murder. A perusal of the evidence of P.W.3 also, there is nothing to suggest that she was an eyewitness to the occurrence concerned. In the absence of any evidence to connect the accused with the crime, the learned sessions Judge simply relying on the evidence of P.W.3, who has not stated anything regarding the act of the accused and she has not connected the accused with the crime and simply relied on the said evidence and convicted the accused. Hence, we are of the view that the conviction and judgment recorded by the learned sessions Judge is liable to be set aside. 16. In the result, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellants by the III Additional Sessions Judge, Kurnool at Nandyal, in Sessions Case No.58 of 2007 on 15.11.2007 for the offences punishable under Section 302 of the Indian Penal Code is hereby set aside and the appellants/A1, A3, A4 and A5 are acquitted for the said offence. Appellants be set at liberty forthwith, if they are not required in any other case. The fine amount paid by the appellants, if any, shall be returned to them. _____________________ A. GOPAL REDDY, J __________________ RAJA ELANGO, J July 27, 2011 lmv HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1754 OF 2007 27.07.2011 lmv