IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE SIXTEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOs : 810, 844 and 1020 of 2004 CRIMINAL APPEAL No.810 of 2004 Between: Jaggavarapu Chennakesava Reddy (A-1) . .Appellant/Accused And State of Andhra Pradesh, rep. By Public Prosecutor. .. Respondent/Complainant CRIMINAL APPEAL No.844 of 2004 Between: Eruva Bhanu Prakash @ Bhanu and 3 others(A-2, A-4 to A-6) . .Appellants/Accused And State of Andhra Pradesh, rep. By Public Prosecutor. .. Respondent/Complainant CRIMINAL APPEAL No.1020 of 2004 Between: Bommula Aravalarao @ Chanti (A-3) . .Appellant/Accused And State of Andhra Pradesh, rep. By Public Prosecutor. .. Respondent/Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOs : 810, 844 and 1020 of 2004 COMMON JUDGMENT: Criminal Appeal Nos.810, 844 and 1020 of 2004 are filed under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) against the judgment dated 27.03.2004 in Sessions Case No.452 of 2001 on the file of the Additional Assistant Sessions Judge, Eluru. The appellant in Criminal Appeal No.810 of 2004 is A.1; the appellants in Criminal Appeal No.844 of 2004 are A.2, A-4 to A-6 respectively; and the appellant in Criminal Appeal No.1020 of 2004 is A-3, in the Sessions Case. 2) By the judgment under challenge, the learned Assistant Sessions Judge convicted A-1 and A-3 to A-6 of the offence punishable under Section 148 of Indian Penal Code (for short, ‘I.P.C’) and sentenced to undergo rigorous imprisonment each for one year and to pay a fine of Rs.500/- each in default to suffer simple imprisonment for one month; convicted A.1 and A.3 to A.6 of the offence punishable under Section 307 of I.P.C. and sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.1,000/- each in default to suffer simple imprisonment for one month; convicted A.2 of the offence punishable under Section 307 read with 149 of I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for one month. 3) The case of the prosecution in brief is as follows: P.W-4 served as Chairman of Agricultural Market Committee, Chintalapudi and also President of Primary Agricultural Co-op Society, Yerrampalli. P.W-4 was also elected Chairman of Market Committee, Chintalapudi a month prior to the date of incident. P.W-4 and A-1 are residents of Yerrampalli. A-7 is resident of Pragadavaram village. A-8 and A-9 are his followers. A-7’s reputation in public was getting eroded because of active participation of P.W-4 in public. Therefore, relationship between A-7 and P.W-4 was strained. There was a dispute between A-3’s father and one B.Anjayya in respect of purchase of Ac.7-00 of agricultural land. P.W-4 resolved the dispute stating that Ac.7-00 should go to B.Anjayya. Therefore, A-3’s father developed a grouse against P.W-4. P.W-4 also acted as a mediator in respect of partition of property between A-1 and his brother. In respect of a tractor P.W-4 advised them to share the tractor equally. A-1 did not agree for the same. Then, brother of A-1, forcibly took the said tractor from A-1. Both of them gave reports against each other in Chintalapudi P.S. A-1 was arrested but not his brother by P.W-12 the S.I. of police. A-1 filed W.P. No.10719 of 2006 before the Honourable High Court against P.W-4, P.W-12 and Prabhakar Reddy for release of the tractor and trailor. The Honourable High Court passed an order of release of tractor and trailor. As the tractor was not released, A-1 filed contempt case in the High Court against P.W-12. According to P.W-1, who is examined as an eye-witness to the incident, on 17.07.1997 at 9.30 P.M, P.W-1 was coming on a scooter from Chintalapudi and was proceeding to his village. P.W-1 is said to have seen P.W-4 ahead of him, proceeding on a motor cycle. P.W-1 was at a distance of 100 yards and saw him with light of his scooter. To reach him P.W-1 raised speed of his scooter. Meanwhile one Ambassador car, black in colour, over took P.W-1 and dashed against the bike of P.W-4. P.W-4 fell down from his bike. P.W-1 noticed A-1, A-3 and 3 others i.e., A-4 to A-6 armed with knives getting down from the car. It is said that car driver went ahead and reversed the car. A-1 instigated the other accused to kill P.W-4. A-1 stabbed on the throat of P.W-4 with a knife. The other accused also attacked P.W-4. Thinking that P.W-4 is dead all the accused went away. P.W-1 went near to P.W-4 and called him, but P.W-4 was groaning. P.W-1 went to the village, informed P.W-2 and 3. They went in a tractor driven by P.W-3 to the scene. They moved P.W-4 into the tractor and took him upto Fathimapuram junction. There they stopped a white Ambassador Car and P.Ws-1 and 3 shifted P.W-4 into that car and shifted him to Government Hospital, Chintalapudi. The doctor gave first aid and asked them to shift P.W-4 to Government Hospital, Eluru as his condition was serious. Thereafter P.W-1 went to P.S and lodged a report on 17.07.1997 at 11 P.M. Ex.P-1 is the statement of P.W-1 recorded by P.W-12. On the basis of Ex.P-1, P.W-12 registered a case in Crime No.75 of 1997 under Section 307 read with 34 of Indian Penal Code. Ex.P-14 is the first information report. On 17.07.1997 at 11.50 P.M P.W-7 the Civil Assistant Surgeon, Government Hospital, Eluru, examined P.W-4 and issued Ex.P-3. Thereafter P.W-4 was taken to Nagarjuna Hospital, Vijayawada on 18.07.1997. P.W-8 the Consultant General Surgeon examined P.W-4 on 18.07.1997 at 4.00 A.M and treated him as inpatient from 18.07.1997 to 15.08.1997 and again on 04.09.1997. Ex.P-4 is the wound certificate. P.W-12 the Sub Inspector of Police after registering the crime, examined P.Ws-1 to 3 and on 18.07.1997 proceeded to the scene of offence along with P.W-11. He prepared a panchanama of the scene in the presence of P.W-11 which is marked as Ex.P-8. He seized Mos 7 to 9 at the scene. He also prepared a rough sketch of the scene marked as Ex.P-15. He got the photographs of the scene taken by P.W-9. P.W-12 proceeded to Nagarjuna Hospital, where P.W-4 was taking treatment and seized the clothes M.Os 5 and 6. P.W-13 the Inspector of Police proceeded to hospital on 23.07.1997 examined P.W-4 and recorded the statement. On 24.07.1997, P.W-13 arrested A-1 in the presence of P.W-11. On 28.08.1997 on receipt of information, P.W-13 along with staff, proceeded to Machilipatnam, seized the crime vehicle and also arrested A-2. Thereafter A-2 led them to the house of A-3 where he was arrested. P.W-13 arrested A-4 to A-7. Pursuant to the statement of A-7, a bag containing two knives M.Os-3 and 4 were recovered. After completion of investigation the charge sheet is laid. 4) The trial Court after considering the material on record framed the charges, which read as follows: FIRSTLY: that on the 16th day of June, 1997 at 8-45 P.M. on Errampalli road after proceeding from Velagalapalli village, A-1 to A-9 agreed to do an illegal act, i.e., to end the life of Jaggavarapu Muthareddy which was done in pursuance of the agreement and thereby committed an offence punishable under Section 120-B of I.P.C. and within my cognizance; SECONDLY: that A-1 to A-6 of you on the same date, time and place as mentioned in charge No.1 supra, were members of an unlawful assembly, and in prosecution of the common object of such assembly viz., to end the life of Jaggavarapu Muthareddy, committed the offence of rioting, and thereby committed an offence punishable under Section 147 of I.P.C and within my cognizance; THIRDLY: that A-1 to A-6 of you on the same date, time and place as mentioned in charge No.1 supra, were members of an unlawful assembly and did, in prosecution of the common object of such assembly viz., to end the life of Jaggavarapu Muthareddy, committed the offence of rioting and at that time were armed with deadly weapons to wit, knives and thereby committed an offence punishable under Section 148 of I.P.C and within my cognizance; FOURTHLY: that A-1 and A-3 to A-6 on the same date, time and place as mentioned in charge No.1, did an act, inflicted injuries over the person of Jaggavarapu Muthareddy as a result Muthareddy sustained as many as 15 bleeding injuries including the injuries over vital parts sufficient to cause death in ordinary course of nature with such intention or knowledge and under such circumstances, that if by that act you had caused the death of Jaggavarapu Muthareddy, you have been guilty or murder and that you caused hurt to the said Muthareddy by the said act and thereby committed an offence punishable under Section 307 of I.P.C and within the cognizance of the Court of Session; and LASTLY: that A-2 and A-7 to A-9 of you on the same date, time and place as mentioned in charge A-1 supra, in prosecution of your common object, did an act by A-1 and A-3 to A-6 with such intention or knowledge and under such circumstances that if by that act you had caused the death of J.Muthareddy, you would have been guilty of murder and thereby committed an offence punishable under section 307 read with 149 of I.P.C and within the cognizance of the Court of Session. 5. The above charges were read over and explained to the accused, for which they denied the same. 6. To substantiate its case, prosecution examined P.Ws 1 to 13 and got marked Exs.P-1 to P-19. 7. After the evidence of prosecution was completed, the accused were examined under Section 313 of Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, for which accused denied the same. 8. The trial Court after considering the evidence on record, found the accused guilty of the charges and accordingly, they were convicted and sentenced as mentioned above while acquitting A-1 to A9 of the offence under Sections 147 and 120-B of I.P.C; A-7 to A-9 of the offences under Sections 148 and 307 read with 149 of I.P.C and A-2 of the offence under Section 148 of I.P.C. Challenging the same, present appeals are filed. 9. Now, the point that arises for determination is, whether the prosecution proved its case beyond reasonable doubt for the charges leveled against appellants-accused Nos.1 to 6, for which they were charge? 10. The learned senior counsel Sri C.Padmanabha Reddy appearing for the appellants contended that the evidence of P.Ws 1 to 4 is highly discrepant and mutually contradictory; that the Sub Inspector of Police, who registered a case has bitter enmity against A-1; that in the earliest version Ex.P-1, names of A-2 to A- 6 have not been mentioned as the assailants of P.W-4; that A-4 to A-6 are totally strangers to P.W-4 and no descriptive particulars of A-4 to A-6 are mentioned in the earlier statements recorded by the police; that the identification of accused by P.W-4 for the first time in the Court after a lapse of Six years is totally unbelievable and valueless; that neither P.W-1 nor P.W-4 speaks about the presence of A-2 or A-3; that P.W-1 and P.W-4 though knew about the name of A-3, but his name has not been referred or figured as accused in the earlier statements; that there is no evidence to show that A-2 shared the common object with the other accused so as to make an attempt to commit murder of P.W-4 and that he prays to set aside the convictions and sentences recorded against the appellants. 11. On the other hand the counsel representing the Public Prosecutor contended that P.W-4 has no grouse or enmity against the appellants so as to implicate them falsely; that he is an injured witness and he has no other reason to implicate them falsely; that though there was enmity between P.W-12 and A-1, P.Ws 1 to 4 would not have accommodated P.W-12 in implicating A-1 falsely; that as the physical features of A-4 to A-6 were imprinted in the mind of P.Ws 1 and 4, the possibility of recollecting the physical features of A-4 to A-6 and identify them at a later point of time cannot be ruled out; that the evidence of P.Ws 5 and 6 would go to show that A-2 also participated in the commission of offence and there is no other reason for them to speak false; that after elaborate evidence on consideration of the evidence on record, the trial Court rightly found the appellants guilty and accordingly convicted and sentenced them and there are no grounds to interfere with the same. P.W-7 examined P.W-4, who is the injured witness, on 17.07.1997 and found the following injuries. 1. A red transversed incised wound with clean cut edges 4” x 1” x muscle deep; on the left cheek; 2. A red incised wound clean cut into 1/4th” x skin deep; below the left ear; 3. A irregular incised wound 4x1”xmuscle deep on the lower lip; 4. A incised wound 5”x2”xskin deep on the chin; 5. A incised wound 3”x1”x depth not probed at left upper abdomen; 6. A red incised wound 3” x 1” x muscle deep on the left shoulder; 7. A red incised wound 2” x ½” on the back of the right index finger; at the distal interphalangean joint; bone exposed and fractured; 8. A incised injury of 1” x ¼” x bone deep at the proximal interphalangeanl join of right middle finger; 9. A red incised wound of 4” x 1” x bone deep, oblique, with outer end towards front on the back of left wrist, cutting the dorsal tendons; 10. A red incised wound 1 ½” x 1” x muscle deep on the back of the right side of the neck; 11. A red incised injury 3” x ½” x muscle deep on the left side of the center of the neck, transverse; 12. A red incised wound on the adam apple over trachea 2” x ¼” x depth not probed; 13. 4 incised wounds red in colour on the left buttock x” x 1” x muscle deep, celittical in size. 14. A red incised wound on the left shoulder of blade region, oblique placed 2” x 1” x muscle deep. 15. 2 abrasions red in colour on the back of the right elbow 1” x 1”. 12. Later, P.W-4 was shifted to Nagarjuna Hospital, where he was examined by P.W-8. He deposed that P.W-4 was found with several multiple injuries and all the wounds were sutured; that besides himself, two other doctors treated P.W-4 as inpatient from 18.07.1997 to 15.08.1997. They gave wound certificate and found the following injuries. 1. Sutured 6 cm., lacerated wound over left cheek; 2. Sutured 5 cm., lacerated wound below the lower lip; 3. Sutured 9 cm., lacerated wound across the neck anteriorly; 4. Sutured 6 cm., lacerated wound over left lower ribs anteriorly; 5. Sutured 3 cm., laceration wound dorsal surface of right index finger causing fracture of middle phalanx and mallentt deformity; 6. sutured 8 cm., laceration wound over dorsal surface of left wrist causing division of extense or tendense of fingers of left hand; 7. Sutured 3 laceration wound each meas ring 4 cms over glutial cleft and glutiel region. 8. Left haeomthorax; 9. Perforation of tranverse colon causing feecal peritonitis of abdomen; 10. 3 broken incisor teeth from lower jaw. P.W-8 opined that injuries 1, 2, 5, 6, 8, 9 and 10 are grievous in nature. 13. It is elicited from the evidence of P.W-8 that he got mentioned in Ex.P-4 that P.W-4 was stabbed by some unknown persons and none of the doctors tried to record the statement of P.W-4. So, from the evidence of P.W-8, it is established beyond doubt that P.W-4 sustained as many as 10 injuries, out of which 7 injuries are grievous in nature. 14. P.W-4 was the Chairman of the Agricultural Market Committee, Chintalapudi. He knew A-1, A-3, A-7, A-8 and A-9 with their names. Admittedly, he had no personal disputes or ill feelings with A-1. He acted as one of the mediators along with 2 others and settled the dispute between A-1 and his brothers in respect of partition of the properties. When he along with other elders advised to share the tractor equally, A-1 did not agree for the same. Thereupon, the younger brother of A-1 Prabhakar Reddy forcibly took away the said tractor. In that connection A-1 and his brothers gave reports against each other. P.W-4 admitted that A-1 filed a writ petition against P.W-4 and the police stating that they high handedly took away the tractor. P.W-4 stated in his evidence that on the date of offence, when he was proceeding on his motor cycle towards his village, a car came from his rear side and hit him, as a result of which, he fell down on the left side road margin and motor cycle also fell down; then, A-1, A-3 to A-6 got down from the car, A-1 instigated the other accused to kill him; that when he pleaded not to kill him, all the accused started stabbing with knives. The specific allegation is that A-1 stabbed on the left side throat and on the left side of the chest; A-3 stabbed him with knife on lower lip, as a result of which he lost his teeth; A-3 also hacked him on his left wrist and other accused stabbed him on the other parts of his body, and as a result of stab on his stomach, his intestine was damaged. Admittedly there was no light at the place of incident. P.W- 4 identified the accused with the help of lighting of head light focus of the motor cycle. Thereafter, he was shifted to Government Hospital, Chintalapudi and he lost his consciousness and as his condition was serious, he was taken to Nagarjuna Hospital, Vijayawada. He had taken treatment as in-patient for about 20 days on second time his intestines were operated and at that time he was in the hospital for 40 days. 15. The incident took place in between Velagalapalli and Yerrampalli during night time. There are no lights fixed to the electricity poles on the road. Though P.W-4 stated that he identified the accused with the help of moon light, the said fact has not been stated when he was examined by the police. Similarly, he did not state to the police that head light of the scooter was burning and he fell down. He did not state before the police that A-1 instigated the accused to kill or that A-1 stabbed him with a knife on his stomach or on his throat. Admittedly, he did not reveal the incident to anybody because he is not in a position to speak. He also admitted that he never saw A-4 to A-6 prior to the offence. He did not give descriptive particulars of A-4 to A-6 to the police. He did not state that A-3 stabbed him with knife on his lower lip and left hand wrist. He did not state about the presence of A-3 on the date of incident or about his stabbing. P.W-1 seems to have seen the accused 4 to 6 for the first time on the date of incident when they attacked P.W-4. The incident alleged to have taken place on 17.07.1997, whereas this witness was examined in the Court on 19.11.2003 i.e., more than six years after the incident. The specific case of A-4 to A-6 is that they never participated in the commission of offence and P.W-1 does not know A-4 to A-6 prior to the incident. The question is whether the identification of A-4 to A-6 by P.W-4 for the first time in the Court after lapse of six years is probable and believable. 16. Identification parade will be held during the course of investigation by the police for the purpose of testing the memory of witnesses with regard to the assailants who are not known to the witnesses prior to the incident. When admittedly the accused are not known to the witnesses prior to the incident and the witnesses had an opportunity to see the assailants for a while, that too in the night time, it is expected from the prosecution to show how the witness could be in a position to identify the assailants who are not known to the witnesses prior to the incident. If there are any striking physical features, which imprinted in the mind of the prosecution witnesses, then it is not difficult for prosecution witnesses to identify them even after a lapse of long time. It is not such a case, where A-4 to A-6 were having some striking physical features, which enabled the witnesses to identify them after lapse of long time. P.W-4 has not given any explanation as to how he could be in a position to identify them for the first time in the Court. Admittedly, no test identification parade was conducted after the arrest of A-4 to A-6. So, the learned senior counsel Sri C.Padmanabha Reddy appearing for the appellants 4 to 6 rightly contended that it may not be possible for P.W-4 to identify A-4 to A-6 for the first time in the Court after lapse of 6 years from the date of incident. Therefore, no reliance can be placed about the identification of P.W-4 with regard to the presence and participation of A-4 to A-6. 17. The evidence of P.W-4 with regard to the specific overt acts against A-3 is concerned, he stated that A-3 hacked him on the left wrist, he stabbed him with a knife on the lower lip, as a result of which, P.W-4 knew his teeth. He knew A-3 as a resident of his village. But, the presence and participation with specific overt acts attributed to A-3, have not been stated to the police when he was examined. When an omission amounting to material contradiction goes to the root of the prosecution case, it cannot be brushed aside lightly or insignificant. An important omission merits consideration. When P.W-4 admittedly knew A-3 and if really A-3 participated in the commission of offence, he would have stated his presence and participation in the commission of offence before the police. 18. The other evidence available on record is the evidence of P.W-1, who set that the criminal law into motion by lodging the first information report. The first information report is a valuable piece of evidence, which shows about the earliest version of the prosecution case. No doubt, it is not a substantive evidence so as to convict the accused, but, at the same time, the earliest version as recorded in the first information report can be compared with what is later told in the Court by the first informant. The recitals in the first information report can be used to corroborate the evidence of the maker. P.W-1, who is the maker of first information report, did not state about the presence of A-3 in the first information report. So also, the presence of other accused except A-1, has not been specifically mentioned in Ex.P-1. Similarly when the police examined him, he did not speak about the presence of A-3 as one who participated in the commission of offence or about the overt acts. Therefore, there is absolutely no evidence to show that A-3 participated in the commission of offence and caused some injuries. 19. Coming to the evidence of P.W-5 and 6, who speak about the presence of A-2. P.W-5 stated that at the time of incident, one black colour ambassador car came and stationed at Anjaneyaswamy temple, facing towards Eluru road; that some persons opened bonnet of the car. He did not speak about the presence of A-2 or other accused specifically. P.W-6 is resident of Velagalapalli village and he is the only witness who speaks about the presence of A-2