THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.613 of 2007 Dated : 25.10.2010 Between : State of A.P. …. Appellant-Complainant a n d M.Bakkaiah & others … Respondents THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.613 of 2007 JUDGMENT: (per The Hon’ble Sri Justice A.Gopal Reddy) State preferred the present Criminal Appeal under Section 378 (3) & (1) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) against the acquittal of respondents-accused in Sessions Case No.4 of 2004 by the II Additional Sessions Judge, Karimnagar, by judgment dated 03.03.2005, for the charges under Sections 148 and 302 read with 149 of Indian Penal code (for short ‘IPC’). 2) The Prosecution story, as unfolded during the course of trial, in brief, is as follows: The deceased Venkati married twice and also deserted them. He was under the suspicion that somebody was playing sorcery against him. While so, on 01.03.2003, the deceased while passing from the house of A.1 uttered abusive words in air alleging that somebody played sorcery against him. A.1 to A.5 having felt that the deceased was abusing them attributing sorcery, tied the deceased with rope and took him away. In the meanwhile, P.W.1, brother of the deceased, came and convinced the accused and a panchayath was also conducted on the next day in that regard wherein the deceased was found fault for the abuses made and was imposed fine. On 03.03.2003 at about 9.00 p.m. deceased went to the shop P.W.6 K.Nabhushanam and purchased cigarette and while he was smoking in front of the shop, A.1 dashed him with motor cycle, which was witnessed by PWs 2 and 3. P.W.2 went to the house of P.W.1 and informed the incident. Then all of them went to the place of offence and on the way they saw all the accused coming in their opposite direction. Later, P.W.1 lodged a report before the Police, on the basis of which crime was registered and after investigating into the crime, Police filed charge sheet, which was numbered as P.R.C. No.71 of 2003 by the Judicial Magistrate of First Class, Jagtial, 3) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charge under Sections 148 and 302 read with 149 IPC, in which, the accused denied the charges and claimed for trial. 4) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 12 and marked Exs.P.1 to P.17 apart from marking MOs 1 to 7. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. The accused did not choose to adduce any evidence on their behalf. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Session Judge acquitted the respondents-accused. Hence, the present appeal. 5) Heard the learned Public Prosecutor for the State and the learned counsel for the respondents. 6) The entire case of the Prosecution is based upon the evidence of PWs 2 and 3, who are said to be the eyewitnesses to the incident. Out of them, the evidence of P.W.3 is hearsay evidence to whom P.W.2 informed that A.1 dashed the deceased with motorcycle. 7) P.W.2 in her evidence stated that on the date of incident at 9.00 p.m. she saw the deceased near the shop of P.W.6 Nagabhushanam where the deceased was smoking cigarette. Herself and her daughter P.W.3 on hearing the cries of the deceased went to the shop of P.W.6 and took the deceased to the house where A.1 came and dashed the deceased with motorcycle. According to her, she saw A.1 alone. Then, she went to the house of P.W.1 and informed him as to what happened. When herself and P.W.1 were proceeding towards scene of offence, A.1 to A.5 came in their opposite direction and they found the deceased in a pool of blood. P.W.3 evidence is also corroborating to the evidence of P.W.2. 8) PWs 4 to 6 and 8 turned hostile and they have not supported the prosecution case. The medical evidence adduced by the Prosecution under Ex.P.8-Postmortem Examination Report issued by P.W.10 shows that the cause of death of the deceased was due to shock on account of head injuries. P.W.10 found the following external injuries on the body of the deceased: 1) Contusion 3” X 3” on the left parital area with clotted blood in both the ears. Base of the skull was found fractured and meninges were torned. 2) Subdural hemotoma was found 3) Contusion on the right side of the chest 3” X 3” 5th and 6th ribs (right side were fractured). 4) Abrasion on the right thigh 1” X 1”. 9) PWs 2 and 3 only stated that they saw A.1 dashing the deceased with motorcycle. But, they have not stated anything about the other accused throwing boulders on the deceased to connect them with the commission of offence. Further, the Prosecution also failed to prove any common object among the other accused to try them. In the absence of any evidence to the effect that due to the hit by A.1 with motorcycle the deceased died, the accused cannot be prosecuted for an offence punishable under Section 302 IPC. Since the Prosecution has miserably failed to establish the guilt of the accused, the Sessions Judge has rightly acquitted the accused and the impugned judgment does not call for any interference of this Court. 10) Hence, the Criminal Appeal is dismissed. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J Dated : 25.10.2010. sur