THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.178, 291 and 324 OF 2007 Dt.29-6-2010 Crl.A.No.178/2007 1.Jakkireddy Nagi Reddy and another ..Appellants/A-5 and 6 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.Nos.178, 291 and 324 OF 2007 COMMON JUDGMENT (per the Honourable Justice A.GOPAL REDDY) Since all these three appeals are filed against one and the same judgment, they are being heard together and disposed of by this common judgment. Crl.A. No.178/2007 by A-5 and A-6; Crl.A.No.291/2007 by A-1, A-2 and A-4 and Crl.A.No.324/2007 by A-3 are filed against the same judgment dt. 19-1-2007 passed in SC No.476/2004 by the X Additional Sessions Judge (FTC) Guntur at Narasaraopet, whereunder the appellants-accused were convicted for the offence under Section 148 and 302 IPC and were sentenced each of them to suffer imprisonment for life and to pay a fine of Rs.5000/-, in default to suffer simple imprisonment for a period of six months for the offence under Sec. 302 IPC and also to suffer simple imprisonment for a period of one year for the offence under Sec. 148 IPC and to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for a period of three months. Both the sentences are directed to run concurrently. The case of the prosecution as emanated from the evidence is as follows: One Bareddy Peddireddy (hereinafter referred to as “the deceased”) was a resident of Remidicherla village, within the limits of Bandalamottu P.S., which is a part of Vinukonda. It is alleged that in the year 2002 Sriramanavami festival was organized by the deceased. On the sixteenth day Vasanthotsavam was performed. On that night, the deceased arranged a cinema programme. In order to disturb the gathering, A-1, A-2, and A-4 who are the residents of the same village, were alleged to have switched on the motor fixed to a bore well. The place in front of the screen got drenched with water and the spectators went away from that place. Then the deceased pulled out the switch and picked up a quarrel with A-1, A-2 and A-4. Elders of the village intervened and pacified both the groups. After about 10 days, A-3’s mother Audi Lakshmi and Polamma, who was examined as P.W.12, quarrelled with each other on a petty issue. The deceased and other villagers subsided the dispute. A-3’s mother felt insulted and went to her parents’ village, Kacharam three days later. A-3 went to Kacharam and met his mother. He returned to Remidicehrla on 16-5-2002 and gathered his friends. On 17-5-2002 at about 6 or 6-30 AM the deceased left the house informing him wife, P.W.1, that he would release the bulls for grazing, and attend calls of nature and return. While so, P.W.1 and her sister-in-law-P.W.2 (sister of the deceased) also left the house to bring she buffaloes to provide pre-milking diet. In between 7 and 7-30 AM, when the deceased was returning, P.Ws.1 and 2 noticed A-1 to A-6 attacking the deceased. A-1 is alleged to have hacked on the neck with an axe; A-2 on the throat with a hunting sickle; A-3 on the neck; A-4 cutting the throat with a knife and A-5 and A-6 beating on the right temple region. P.Ws.1 and 2 raised cries and the accused threatened them and went away. The deceased died on the spot. Later, P.W.1 got a report Ex.P-1 prepared and presented it in the Police Station. P.W.15-S.I.of Police received it at 11 AM and registered the same as a case in Cr.No.32/2002. FIR is marked as Ex.P-22. In Ex.P-1, P.W.1 named A-1 to A-4, one Somala Koti Reddy S/o Veera Reddy attributing overt acts to A-1 and A-2.Thre was no reference about A-5 and A-6. On receipt of Ex.P-22 at 12 noon, CI of Police-P.W.18 took up investigation. He observed the scene of occurrence in the presence of P.Ws.10 and 11 and seized a plastic tin and blood stained earth. Ex.P-39 is the scene observation report. He also prepared rough sketch covered under Ex.P-36. He conducted inquest in between 3 PM and 6 PM in the presence of P.Ws.10 and 11. Inquest report is Ex.P-37. After inquest, the dead body was sent for postmortem examination through P.W.7. P.W.13 conducted autopsy at 1o AM on 18-5-2002 over the dead body of the deceased. He noticed 4 injuries on the neck and one on the cheek. He opined that death was due to shock an hemorrhage. He also noticed 300 cc of semi- digested food and he stated that the deceased might have had his last meal one hour prior to his death. During investigation, P.W.18 referred to three persons as accused 5,6 and 7 on the basis of statements made by witnesses. But on 19-5-2002, he filed a memo covered under Ex.P-39 before the Magistrate at Vinukonda stating that the names of A-5, A-6 and A-7 as shown in the First Information Report and inquest were deleted and added Jakkireddy Nagi Reddy and Jakkireddy Lakshmi Reddy, the maternal uncles of A-3, as accused Nos. A-5 and A-6. He arrested A-1 to A-4 on 6-6-2002. On the basis of statements of A-1, A-2 and A-4, axe hunting sickle (M.O.4) and knife (M.O.5) were recovered from hayrick under a cover of panchanama Ex.P-20. At the instance of A-3, parts of bi-cycle (M.O.6), shirt, trousers (M.O.8) and axe (M.O.7) were seized under a cover of panchanama Ex. P-21. A-5 and A-6 surrendered before the Magistrate. After obtaining policy custody, P.W.18 recovered two hunting sickles from the field lying to the north of A-3’s field under a cover of panchanamaEx.P-40. After receiving relevant documents and on completion of investigation, a charge sheet came to be filed before the Judicial Magistrate of First Class, Vinukonda. Learned Magistrate took the charge-sheet on file as PRC No.31/2003 and committed the same to the Sessions Division of Guntur District holding that the case is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.476/2004 and made over the same to X Additional Sessions Judge (FTC), Guntur at Narasaraopet, for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused framed two charges under Sections 148 and 302 IPC, and read over and explained to the accused in Telugu. They pleaded not guilty and claimed to be tried. To substantiate the charges framed against the accused, the prosecution examined 18 witnesses and proved 43 documents and exhibited 12 material objects. P.Ws.6,7,9,10,11, and 12 did not support the prosecution and they were declare hostile. After closure of the evidence, the accused were examined under Section 313 Cr.P.C., They denied the prosecution evidence and represented that he does not have any evidence. But on behalf of the accused, Ex.D-1 was marked. The learned Sessions Judge accepting the motive part attributed by the prosecution against the accused and the evidence of P.Ws.1 and 2, found the accused guilty of the offences punishable under Secs.148 and 302 IPC and convicted them accordingly and sentenced them as aforementioned. On presenting the appeals, appellant-A-3 in Crl.A.No.324/2007 filed Crl.A.M.P.No.417/2007 praying the court to send him to Juvenile Home as he was below 16 years of age at the time of commission of offence. This court by order dt.31-7- 2007 directed the appellant be sent to Juvenile Home. Sri T.Bali Reddy, learned Senior Counsel appearing for the appellants/accused in all the appeals contends that when Ex.P-1 was given by P.W.1 at 11 AM on 17-5-2002, the same has been reached the Magistrate at 3-15 AM on 18-5-2002 and the prosecution miserably failed to explain the delay, which clearly establishes that the accused were implicated with due deliberations by ante timing FIR. He further contends that the three persons viz., A-5, A-6 and A-7 whose names were shown in FIR and inquest were deleted and A-5 and A-6 are added as accused without there being any evidence against them on a memo covered under Ex.P-39. The occurrence, as such, has not taken place in the morning as stated by P.Ws.1 and 2 in view of the evidence of P.W.13, who stated that the stomach of the deceased contained semi-digested food and he might have had his last meal one hour prior to his death and therefore case has been foisted against the appellants/accused. Though A-5 and A-6 were added basing on the statements of L.Ws.7 to 19, L.Ws.7,8, 9,10 who were examined as P.Ws.9,6,7 and 8 respectively did not support the case of the prosecution to implicate A-5 and A-6. P.W.1 who went along with her relatives to the police station and submitted Ex.P-1 report drafted by one Barreddy Venakteshwara Reddy that the accused nurtured grouse against her husband and committed the murder, admitted that her husband did not take any food prior to his death; after the death of her husband, she is seeing A-5 and A-6 only in the court hall and she has not mentioned the number of assailants in Ex.P-1, therefore, participation of all the accused as spoken to by P.W.1 is not proved. Whereas the evidence of P.W.2 is contrary to the evidence of P.W.1 as P.W.2 stated that they went to the police station at 3 or 4 PM, which falsifies about lodging of report at 11 AM. On the other hand, learned Public Prosecutor while sustaining the conviction contended that the evidence of P.W.5 clearly establishes the presence of P.Ws.1 and 2 at the time of incident and the evidence of P.Ws.1 and 2 who are said to be eye witnesses to the incident is reliable and trustworthy. In Ex.P-1, though P.W.1 has mentioned the names of A-1 to A-4 and some others, during the course of investigation, it came to light the participation of A-5 and A- 6, who are maternal uncles of A-3, in the commission of offence and therefore they were added as accused. Whenever there is a conflicting evidence between medical evidence and the evidence of eye-witnesses, credence can be given to the evidence of eye witnesses and their presence cannot be doubted. To buttress the above submissions, reliance is placed on the following judgments: 1. RAM BALI V. STATE OF U.P[1]; 2. AKHTAR V. STATE OF UTTARANCHAL[2] 3. SATBIR SINGH V. STATE OF U.P.[3] In the wake of the above submissions, the point that arises for consideration in these appeals is: “Whether the prosecution is able to prove the guilt of all the appellants/accused or some of the appellants/accused beyond reasonable doubt and whether the judgment of the trial court is liable to be set-aside or modified? P.W.1 who lodged a report covered under Ex.P-1 stated that on 17-5-2002 at 6 or 6-30 AM the deceased left the house stating that he will untie the oxen for grazing and after attending nature calls he will return back. Then, herself and Koteshwaramma (P.W.2) went to bring the she buffaloes for untying them for grazing. In between 7 to 7- 30 AM the deceased was returned. Then in the presence of herself and P.W.2, A-1 hacked on the neck of her husband with an axe; A-2 hacked the deceased with a hunting sickle on his throat; A-3 hacked the deceased on the neck; A-4 cut the throat of the deceased with a knife and A-3 again beat on the chin of the deceased and two unknown persons ie.,A-5 and A-6 who are in the court hall beat on the right temple region with some weapons. She also deposed that her husband organized Sriramanvavami festival of the year 2002. On 16th day, Vasanthotsavam was performed. On that night, a cinema programme was arranged. In order to disturb the spectators, the A-1,A- 2 and A-4 switched on the bore well motor and released the water at the place where the movie is screened, and the spectators went away for sometime. Then, the deceased removed the fuse connection of the bore well. At that time, the elders intervened, pacified and sent away both the groups. 10 days thereafter, Adi Lakshmi, mother of A-3, and Polamma quarrelled with each other, which was subsided by the villagers. But Adilakshmi feeling insult left to her parents’ house in Kacharam. One day prior to the murder of her husband, A-3 returned to Remedicherla. Due to the said dispute, they nurtured grouse against her husband and murdered on the next day morning. She admitted in the cross-examination that the deceased did not take anything prior to his death. She also admitted that after the death of her husband she again seen A-5 and A-6 in the court hall. She has not mentioned the number of assailants in Ex.P-1. P.W.2, who is the sister of the deceased, while supporting the version of P.W.1 stated that herself and P.W.1 were going to the field to release she buffaloes for grazing and saw the deceased was returning from the field with a tin in his hand. Then, A-1 to A-6 rose up from the hayrick and started attacking the deceased. A-1 hacked the deceased on his neck with an axe; A-2 hacked the throat of the deceased with hunting sickle; A-4 stabbed the deceased on his throat with a knife. When the deceased fell down on the ground, A-3 hacked him on his chin with an axe; and A-5 and A-6 beat on the right temple region of the deceased. She admitted that herself and several others went to the police station at 3 or 4 PM. In the cross-examination, she deposed that she first saw the deceased at a distance of 50 feet and stopped there with a view to go together with him. When he is coming to towards them in opposite direction, the accused emerged from the hayrick and attacked the deceased. The deceased has not seen the assailants till he received the first blow. He fell on the assailants as they surrounded him. For the first time, she informed about the incident to the police. The mother of P.W.2 is examined as P.W.3. She deposed about the celebrations of Sriramanavami festival and quarrel between the deceased and A-1, A-2 and A-4 about screening of film and release of bore well water. P.W.3 stated that 10 days after the said dispute, Polamma and Adilakshmamma had a dispute. Then, herself and the deceased advised both the parties not to quarrel. One day prior to the murder of the deceased, A-3, who is the son of Adi Lakshmamma, returned to Remedicherla, and after taking support of A- 1, A-2 and A-4, they committed the offence. On coming to know of the death of the deceased, he went to the scene of offence, where P.Ws.1 to 4 stated that A-1 to A-4 and two others murdered the deceased. P.W.4, who is a resident of Remidicherla, deposed that on coming to know about the murder of the deceased on 17-5-2002, he went and saw the dead body of the deceased at the scene of offence, where people were discussing about A-1 to A-4 are responsible for the murder of the deceased. He came to know that Adilakshmamma and Polamma quarrelled with each other and during that quarrel Polamma beat Adilakshmamma P.W.5 deposed that on the date of incident, on hearing the cries near the hayrick, he rushed thee and found the deceased lying in a pool of blood with bleeding injuries, where P.W.1 and 2 informed him that A-1 to A-4 murdered the deceased. He further deposed that he had seen about 5 or 6 persons running away but he could not identify hem. P.W.6, who is a signatory to the scene of observation panchanama; inquest report and seizure panchanama, did not support the case of the prosecution and was declared hostile. P.W.13 is the Medical Officer. He conducted autopsy over the dead body of the deceased and found the following external injuries: 1. Incised wound of 15 x 10 cms on front of the neck. 2. Incised wound of 10 x 5 cms on back of neck. 3. Incised wound of 10 x 3 cms on right side of neck. 4. Incised wound of 7 x 2 cms below No.1 wound. 5. Incised wound of 3 x ½ cm on the chin. On internal examination, he found hyoid bone was broken and stomach contained 300 cc of semi-digested food. He issued post- mortem certificate covered under Ex.P-18 opining that the cause of death was haemorrhage and shock due to multiple injuries. In the cross-examination, he deposed that the stomach contained semi- digested food and the deceased might have had his last meal one hour prior to his death. P.W.14, a Panchayat Secretary, speaks about arrest of A-1 to A-4. He further deposed that he cannot identify the four persons that were arrested by the police in his presence nor he can give their names. In his presence, confessional statements of each of the four persons apprehended were recorded. On their showing, M.Os.4 to 10 were seized from the house of A-3. In the cross-examination, he admitted that he is staying in Bollapalli, which is 18 KMs away from Vinukonda. He boarded the police jeep, in which P.W.10 was already there. They reached Remidicherla at 2 PM. He cannot say in which direction, the accused fled away. After apprehension of the accused, they disclosed their details and a constable drafted a panchanama. A joint statement of four accused persons was recorded. He has not seen where from the weapons were produced. P.W.15, the then Sub-Inspector of Police, Bandlamottu Police Station, deposed that he received Ex.P-1 from P.W.1 on 17-5-2002 at 11 AM and registered it as a case in Cr.No.32/2002. Ex.P-22 is the First Information Report. After registering the crime, a copy of Ex.P-22 was forwarded to C.I. of Police, Vinukonda, who investigated the case. He admitted in his cross-examination that at the time of registration of Ex.P-22 Bandlamottu Police Station is located in Vonukonda and it is in the premises where the court of Judicial Magistrate of First Class, Vinukonda is located. P.W.18 is the Circle Inspector of Police who investigated into the crime and filed charge sheet. In the cross-examination, he admitted that after conducting inquest on 17-5-2002, he examined some more witnesses on the same day, but he did not enter their names and examination in the general diary on 17-5-2002 as the general diary will be maintained by Sub-Inspector of Police. A-5 and A-6, who informed him that the hayrick belongs to P.W.9, are not the resident of Remedicherla and the hayrick was intact Names of five persons and others were mentioned as accused in the First Information Report. He did not probe as to how many more accused were present at the time of attack on the deceased. But during the course of investigation, it revealed that there were six accused. He eliminated three accused out of the seven names mentioned in the inquest as no case was made out against those three accused. From the above narrative evidence of the prosecution witnesses, the prosecution could able to establish that the deceased met with homicidal death on 17-5-2002 in between 6 and 7 AM on account of receiving the injuries on various parts of his body caused by the accused. Learned Senior Counsel was emphatic in his submission that the medical evidence destroys the case of the prosecution about the time of death. P.W.13, who conducted post-mortem examination, stated that the deceased might have had his last meal one hour prior to his death. Whereas P.W.1 stated that the deceased did not take anything prior to his death. In view the above evidence, the occurrence might have occurred in the mid-night and accused have been falsely implicated, which is evident from the fact of reaching FIR to the Magistrate, Narasaraopet at 3-15 AM on the next day of the incident. Thus, there is a delay of 15 hours from the time of lodging Ex.P-1 report till reaching it to the Magistrate. The prosecution has not been explained the delay in reaching FIR to the Magistrate. The Supreme Court in RAM BALI (1 supra) after referring to its earlier judgments in PATTIPATI VENKAIAH V. STATE OF A.P. (1985) 4 SCC 80) and NIHAL SINGH V. STATE OF PUNJAB (AIR 1965 SC 26) held as under: “Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the court has to consider the effect thereof. ….” (para 10) In AKHTAR (2 supra) the Supreme Court after referring to the following position of law laid down in SARDUL SINGH V. STATE OF PUNJAB (1993 SCC (Cri) 1092), which has been reiterated in VIRENDRA V. STATE OF U.P (2008) 16 SC 582) upheld the judgment of the High Court allowing the appeal filed by the State of Uttaranchal convicting the appellant for the various offences and sentencing them to imprisonment by setting aide the order of the trial court. “6. We see absolutely no reason to discredit the evidence of the three eyewitnesses whose presence cannot be doubted. Now coming to the semi- digested food, it cannot be ruled out that the old lady might not have eaten anything earlier. Merely because the illiterate witnesses stated that they took their meals immediately before the occurrence cannot by itself be a circumstance to discredit their evidence on the basis of medical evidence regarding the presence of semi-digested food. It is also clear from the textbooks on medical jurisprudence that the stomach contents cannot be determined with precision at the time of death. As rightly held by the High Court, the trial court grossly erred in basing its verdict mainly on the nebulous medical observation.” In SATBIR SINGH (3 supra), the Supreme Court held that the digestive process as is well known depends upon the nature of food; and evidence of prosecution witnesses must be considered upon taking a holistic view of the matter. Keeping in view the above position of law reiterated by the Supreme Court, we have to consider the evidence of P.W.13 and P.W.1. P.W.13, the Doctor who conducted post-mortem examination, opined that the deceased had his last meal one hour prior to his death. He is giving his opinion based upon the Modi’s Medical Jurisprudence, wherein it was stated at page 185 that so far as the food contents are concerned, they remain for long hours in the stomach and duration thereof depends upon various factors. The Supreme Court in MAIN PAL V. STATE OF HARYANANA[4], at para 11 of its judgment held as under: ‘11. … If the eyewitnesses’ version, even though of the relatives, is found to be truthful and credible after deep scrutiny the opinionative evidence of the doctor cannot wipe out the effect of eyewitnesses’ evidence. The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested, in the same manner as that of any other witness, keeping in view only the fact that he has some experience and training in the nature of the functions discharged by him.’ In view of the same, we reject the