THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 290/2007 Dt.6-7-2010 Marepally Narender Reddy and others ..Appellants/A-1 to A-7 V. The State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., at Hyderabad. ..Respondent/complainant The Court made the following: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No. 290/2007 JUDGMENT (per the Honourable Justice A.GOPAL REDDY) The appellants who figured as A-1 to A-7 were charge- sheeted for the offences punishable under Sections 147,148,363,302 r/w 149 and 109 IPC and were put to trial for the offences under Sections 1148, 364, 302 r/w 149, 302 r/w 109 IPC in SC No.548/2004 by the IV Additional Sessions Judge (Fast Tract Court), Mahabubnagar. The learned Sessions Judge found A-2 to A-7 guilty for the offences under Sections 148, 364, 302 r/w 149 IPC and A-1 for the offence under Section 109 IPC and convicted A-1 to A-7 for the offences punishable under Sections 148, 302 and 364 IPC and sentenced each of them to suffer imprisonment for life for the offence under Sec.302 IPC; six months rigorous imprisonment for the offence under Sec.148 IPC and one year rigorous imprisonment and also to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for a period of six months for the offence under Sec.364 IPC. All the sentences are directed to run concurrently. The substance of the charge against the accused is that on 9th March, 2004 at about 1 PM near Lala Hotel at Allapur village, all the accused formed themselves into unlawful assembly and in furtherance of their common object kidnapped one Marepally Srinivas Reddy (hereinafter referred to as “the deceased”) and on the instigation of A-1 caused his death beating him with sticks. The prosecution story, as unfolded during the trial, which led to the conviction of the appellant/accused, is as follows: A-1 to A-3 are brothers. A-4 is the tractor driver of A-1 to A-3. A-5 to A-6 are workers, working under A-1 to A-3. P.W.1 is the wife, P.Ws.2 and 3 are the brothers, P.Ws.14 and 15 are the sisters-in- law of the deceased. About 18 years prior to the date of the incident, at the instance of the accused, father of the deceased was killed. Thereafter, A-1 and his brother dig a well behind their house. On that, the deceased objected and on that issue, A-1 to A-3 beat him. Subsequently also, the accused quarrelled with the deceased and beat him on the pretext that their motor-bike was set fire by some unknown persons. One day prior to the date of the incident at about 8 PM, the deceased picked up a quarrel with A-1 to A-3 alleging that they sent his wife to her parents’ house. On that the deceased was beaten up by the accused. Then on the next day, A-3 informed his brothers that he was beaten by the deceased at Kosgi. Thereafter,A-1 to A-7 went in a jeep to Allapur. On 9-3-2004 at about 1 PM, P.W.4 saw the deceased at the tea stall of P.W.6 and talked to him. In the meanwhile, A-2 to A-4 and other accused came in a jeep and beat the deceased with sticks. When P.Ws.4 to 6 enquired them as to why they were beating, then A- 2 informed that the deceased killed his brother in Togapur village, in that connection they were beating him. Thereafter, all the accused took the deceased in their jeep. Then, at about 5 or 5-30 PM while P.Ws.2, 3, 14 and 15 standing in front of their house, saw A-1 to A-7 brought the deceased in their tractor and thrown the dead body at his house. Then, P.Ws.2, 3, 14 and 15 saw the deceased lying dead with injuries. Thereafter, P.W.1 lodged a report, which is marked as Ex.P-1. On 10-3-2004 at about 1-30 PM basing on the report lodged by P.W.1, P.W.12-the then Sub-Inspector of Police, Kosgi registered the same as a case in Cr.No. 29/2004 and issued FIR covered under Ex.P-22. Further investigation was taken over by P.W.13-the then Circle Inspector of Police, who immediately rushed to the house of the deceased and held scene of offence panchanama and further held inquest over the dead body of the deceased in the presence of P.W.10. Ex.P-19 is the inquest report. On 11-3-2004, on requisition, P.W.11-the then Medical Officer, Government Civil Hospital, held autopsy over the dead body of the deceased and opined that the cause of death was due to multiple injuries. Ex.P-21 is the postmortem report. During the course of investigation, P.W.13 was informed that P.Ws.4,5 and 6 were witnessed the occurrence. Subsequently, he recorded their statements. On 17-3-2004 P.W.13 arrested A-2,.A-4, A-5 and A-7 and in pursuance of their statements, the accused, P.W.13 and panch witnesses, namely, P.Ws.8 and 9 followed the accused to the scene of offence, where the deceased was beaten to death. P.W.13 prepared scene of offence panchanama and further prepared rough sketch of the scene covered under Ex.P-23. At their instance, sticks were recovered under Ex.P-29 panchanama. On 17-3-2004 and 22-6-2004 A-1 and A-3were arrested respectively. On 30- 3-2004 all the material objects were forwarded to Forensic Science Laboratory. After receiving the relevant documents and on completion of investigation, P.W.13 filed the charge sheet before the Judicial Magistrate of First Class, Kodangal. Learned Magistrate took the charge-sheet on file as PRC No.33/2004 and committed the case to the Sessions Division of Mahabubnagar District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.584/2004 and made over to the IV Additional Sessions Judge (Fast Track Court), Mahabubnagar for disposal according to law. The learned Sessions Judge on hearing the prosecution and the accused, framed four charges for the offences punishable under Sections 148, 364,302 r/w 149 and 302 r/w 109 IPC against the accused, read over and explained the same to the accused in Telugu, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences for which they stood charged, the prosecution examined 15 witnesses and proved 30 documents and exhibited 10 material objects. After closure of prosecution side evidence, the accused were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. On behalf of the defence, no oral evidence was adduced, but Exs.D-1 to D-6 were marked. The learned Sessions Judge after considering the evidence adduced by the prosecution, particularly the evidence of P.Ws.4,5 and 6, found A-2 to A-7 guilty for the offences under Sections 148, 364, 302 r/w 149 IPC and A-1 for the offence under Section 109 IPC and convicted A-1 to A-7 for the offences punishable under Sections 148, 302 and 364 IPC and sentenced each of them, as aforementioned. Challenging the conviction and sentences, A-1 to A-7 preferred the present appeal. Sri C. Padmanabha Reddy, learned Senior Counsel for the appellants/accused contended that the occurrence which has taken place according to the prosecution witnesses is at 1 PM on 9- 3-2004, whereas the dead body was found thrown at the house of the deceased at 5 PM on 9-3-2004 and report was submitted at 13-30 hours on 10-3-2004, thus there was a delay of more than 24 hours in lodging report. The evidence of eye-witnesses, namely, P.Ws. 4, 5 and 6, according to the prosecution, is contradictory to each other. According to P.W.4, A-2, A-3 and A-4 and the remaining other accused came there in a jeep and started beating the deceased with sticks. Whereas P.W.5 stated that except A-1 remaining other accused came in a jeep and started beating the deceased with sticks. Whereas P.W.6 stated that A-2 and A-3 and some others came in a jeep and started beating the deceased. P.W.4, who is an eye-witness, has not informed the incident either to the police or family members of the deceased. According to P.Ws.5 and 6, they went to the village Togapur on 10-3- 2004 at 9 AM and were in the village till 6-30 PM, but whereas P.W.13 stated that he has not seen P.Ws.5 and 6 at Togapur and he examined P.Ws.5 and 6 on the next day ie., at 11 AM on 11-3-2004. P.W.1 who is the wife of the deceased and who set the criminal law into motion is not an eye witness to the incident and her evidence is only hear-say. P.Ws.2 and 3 who are brothers of the deceased and their wives P.Ws.14 and 15 deposed that they went to the house of the deceased at 5 PM after the dead body was thrown at the house of the deceased but they have not informed the same to anybody till next day and it is impossible for them to see the dead body brought in the tractor since all the sides are covered. According to P.Ws.5 and 6, the place of occurrence is near the hotel of P.W.6 at Allapur, whereas as per Ex.P- 20-crime details form, the scene of offence is the house of the deceased, and as per Ex.P-23 the occurrence took place within the limits of Nacharam village. Therefore, the prosecution is not sure where the deceased was beaten by the accused and due to deliberations after P.W.1 visiting the village, all the accused have been implicated due to enmity between them and it is unsafe to convict the accused relying upon the evidence of P.Ws.4 to 6, whose evidence is contradictory to each other. On the other hand, the learned Public Prosecutor contended that P.Ws.4 to 6 are eye-witnesses to the incident and they categorically stated that they saw the accuse beating the deceased near the hotel of P.W.6. The evidence of P.Ws.4 to 6 is also supported by the evidence of P.W.11 and Ex.P-21-postmortem certificate, which discloses that the deceased died due to the injuries received by him. Since all the witnesses speak about A-2 to A-4 forcibly taking the deceased in a jeep and throwing the dead body at the house of the deceased after beating by all the accused, the conviction and sentences recorded against the accused do not call for any interference. In the light of the rival submissions, the point that arises for consideration in this appeal is: “Whether the prosecution has proved the guilt of the appellant/accused beyond reasonable doubt and whether the conviction and sentences imposed on the appellant/accused for the offences punishable under Sec. 148,302,364 IPC are liable to be set-aside or modified? P.W.1, who is the wife of the deceased, is not an eye witness to the incident. She deposed that she left the house of the deceased three days prior to the incident to Nagireddypalli to her parents’ house, where her children were studying. She further deposed that P.W.2 went to Nagireddypalli on 10-3-2004 at 8 AM and informed her that her husband was killed by the accused. Then, herself, her parents, P.W.2 engaged a jeep to go to Thogapur village and went there, where the dead body of her husband was lying in the hall. She along with P.W.2 went to the police station and lodged a complaint. A- 4 is the tractor driver of A-1 to A-3. A-5, A-6, A-7 are workers, working under A-1 to A-3. A-1 to A-3 are their agnates and sons of Chenna Reddy. Prior to her marriage, her father-in-law was killed by A-1 to A- 3. Four years prior to the death of her husband, A-4 and A-6 killed their cow. In that connection, a quarrel took place between their family and the accused family. One day before the death of her husband, he questioned A-1 as to why he instigated her to go to her parents’ house. A-1 to A-3 beat her husband at about 8 PM on the next day ie., 9th when A-3 was going to attend his job, her husband beat him in Kosgi. Thereafter, her husband went to Allapur village. When the deceased was taking tea near the hotel belonging to P.W.6, A-1 to A-7 went there and brought her husband to Naacharam village. They went to Allapur village and brought her husband in a jeep to the outskirts of Nacharam village., A-4 brought tractor from Togapur and shifted the dead body to their village and the accused thrown the dead body in their house premises. She stated in her cross-examination that since four years, her children have been studying at her parents’ house. P.W.2, who went to the village Nagireddipalli and brought P.W.1, deposed that on 8-3-2004 at 8 PM, A-1 to A-3 picked up a quarrel with her husband at his house when the deceased questioned the accused as to why they instigated P.W.1 to go to her parents’ house. A-1 to A-3 beat the deceased. On the next day morning at about 8 or 9 AM Jalandhar Reddy came to his house and informed his family members that the deceased beat him at Kosgi. Thereafter, A-1 to A-7 went to Allapur and came back along with the dead body of the deceased in a tractor and thrown the same in the house of the deceased. While the tractor was passing in front of their house, himself, his wife P.W.14, Laxmi, P.W.3 went near the dead body of the deceased. Due to fear of the accused, he could not inform the incident to the police immediately. On the next day morning, he went to Nagireddypalli village to inform the incident to P.W.1. In the cross- examination, he stated that he has stated before the police that on 9-3- 2004 at 8 AM A-3 came to his house and informed his brothers that the deceased beat him at Kosgi and when he enquired them about the incident they abused him. He volunteered that the Telaga people killed his father at the instigation of the accused and their father. He has not stated before the police that A-1 to A-7 went in an auto to Kosgi and from there to Allapur and beat his brother and they all brought the dead body to the village. He has stated before the police that the accused threatened them while they are trying to inform the incident to the police. He has not stated before the police that the accused went to Tellapur and beat his brother at Tellapur and brought him from Tellapur as in Ex.D-2. P.W.3 stated that at about 9-30 AM, A-3 came to his house and informed his brothers A-1 and A-2 that the deceased beat him at Kosgi. Thereafter, A-1 to A-7 left their house in the jeep. At around 5 to 5-30 PM, A-1 to A-7 brought the body of the deceased in the tractor belonging to A-1 to A-3 passing through their house. A-1 to A-3 are their agnates. He admitted that a person lying in the trolley cannot be visible to others. None of the villagers came to see the dead body. On the next day, on hearing the cries of P.W.1, they opened the door and went to see the dead body. He has not gone to the house of anybody in that night. P.W.4, who is an eye-witness to the incident, stated that on 9- 3-2004 at about 1 PM, when he was going to Tandoor village, observed the deceased at tea stall belonging to P.W.6. Then, he had a courteous talk with the deceased. When he was prepared to go from that place, A-3, A-2, A-4 and the remaining other accused present in the court hall came there in a jeep and started beating the deceased with sticks . He enquired A-2 as to why they are beating the deceased. At that time, P.Ws.5 and 6 were present. On his enquiry, A-4 informed him that the deceased killed his brother in Togapur village and in that connection they were beating the deceased. All the accused taken the deceased in their jeep. On the next day morning at 5 AM, Narsi Reddy informed him that the accused killed the deceased. Then himself, P.W.5, P.W.6 and some others went to Togapur and they reached there at 9 AM. Circle Inspector of Police recorded his statement. He stated in his cross-examination that while the accused beating the deceased, he fell down and received injuries on his head and legs. The accused might have beat the deceased 50 to 60 times. He volunteered that none were present at that time except himself, P.Ws.5 and 6. He has not informed Narsi Reddy about the incident and also not informed to the village Sarpunch and Village Secretary. He also not informed the police about the incident either at Tandur or Kosgi. He stated before the police that at 5 AM, Narsi Reddy informed him about the murder of the deceased by the accused. He also stated before the police that himself, P.Ws.5 and 6 went to Togapur village at 9 AM. By that time, SI of Police sat at the house of the accused and they were present in their house. S.I. of Police abused the brothers of the deceased that they only killed the deceased by not providing food. He told the Circle Inspector of Police that A-1 to A-4 are the accused and asked him why he has not taken action against them as they are available. He stated before the police that the A-1 to A-7 came to the village and beat the deceased and took him in a jeep. P.W.5 stated that he saw the deceased near the hotel of P.W.6 in their village Allapur. At that time, himself, P.W.4 were present in the hotel. When he was taking tea, all the accused except A-1 Narender Reddy came to that place in a jeep and started beating the deceased with sticks. The accused taken the deceased in a jeep and went away. On 10-3-2004, himself, P.W.4 and P.W.6 went to Togapur at 9 AM. Circle Inspector of Police, Kodangal examined and recorded his statement at his office. In the cross-examination, he admitted that he stated before the police that five or six persons came in a jeep and they beat the deceased with sticks and they took him in a jeep. He has not observed any blood stains on the ground where the deceased was beaten to death. P.W.6, who is the owner of the hotel, deposed that while he was preparing tea, P.W.5 came to his hotel and while drinking tea, P.W.4 was also came to that place. In the meanwhile, some persons came in a jeep and started beating the deceased. He identified A-2 and A-3 as they were present among the said persons. He also stated that he along with P.W.5 and P.W.4 went to Togapur at about 9 AM to see the dead body. His statement was recorded on the same day evening at Kodangal. In the cross-examination, he stated that at 6 PM police have recorded the statements of himself, P.W.4 and 5 at Kodangal. P.W.10, who is a witness to the inquest panchanama covered under Ex.P-19, deposed that while conducting inquest, the police seized the clothes of the deceased. In his presence, police conducted scene of offence panchanama and prepared rough sketch. P.W.11 is the then Medical Officer in Government Civil Hospital, Kodangal. He deposed that he conducted post-mortem examination at 9 AM on 11-3-2004 on the body of the deceased and found 15 ante mortem injuries. He issued post-mortem certificate covered under Ex.P-21 opining that the deceased died due to shock as a result of multiple injuries. He further deposed that the approximate time of death is about 36 to 48 hours prior to his post- mortem examination. P.W.12 is the then Sub-Inspector of Police, Kosgi. He deposed that on receiving a written complaint from P.W.1 on 10-3-2004 at 1-30 PM, he registered a case in Cr.No.29/2004 under Sections 147, 148, 363, 302 r/w 149 IPC and issued First Information Report covered under Ex.P-22. He sent information to P.W.13, and also sent FIR to the court. On registering the case, he proceeded to Togapur along with the complainant. On P.W.13 reaching Togapur, he handed over CD file to him. P.W.13 who commenced investigation on receiving Ex.P-22 from P.W.12 deposed that on receipt of FIR, he rushed to the village and by that time he reached the house of the deceased, P.W.12 and some other constables were present. He conducted scene of offence panchanama in the presence of P.W.10 and one Bandi Krishna Reddy. He drawn rough sketch. He held inquest over the dead body of the deceased in the presence of mediators ie., P.W.10 and one Bandi Krishna Reddy. He examined P.Ws.1, 2,3,4 and P.W.14 and 15 and recoded their statements. He came to know in the village that P.Ws.5 and 6 have witnessed the incident, but they were not available. While he was in the office at Kodangal, P.Ws.5 and 6 came and stated about the incident. He recorded their statements. On 17-3-2004, he along with his staff arrested A-2, A-4, A-5 and A-7. In the presence of P.W.8 and P.W.9, he recorded the confessional statements of the accused separately. In furtherance of the confessions made by the accused, he, panchas and staff followed the accused to the scene where the deceased was beaten to death in Nacharam village limits. He conducted another panchanama of scene of offence and drawn rough sketch. Ex.P-23 is the scene of offence panchanama conducted at Nacharam village. Exs.P-23 to P-30 are confession panchanamas of A-2, A-4 to A-7. Ex.P-29 is the scene of offence and recovery panchanama. He arrested A-1 on 17-3-2004. On 22-6- 2004, A-3 surrendered before the court. In the cross- examination, P.W.13 admitted that the investigation does not reveal that P.W.4, 5, and 6 have informed about the kidnapping of the deceased to his uncles Narsi Reddy and Hanmi Reddy at Allapur and P.Ws.1,2 ,3, 14 and 15. P.Ws.2, 3, 14 and 15 have not informed him through whom they came to know about the kidnapping of deceased at Allapur. He admitted that P.Ws.2, 3, 14 and 15 went to the house of the deceased at 6 PM and found the deceased dead. P.W.1 has stated before him that she was residing at Nagireddypalli village. He further admitted that P.Ws.2,3,14 and 15 have not stated before him, while they were standing in front of their house they saw the accused bringing the dead body of the deceased in their tractor, and P.Ws.2,3, 14 and 15 have not stated before him that the accused threatened them not to reveal the incident to the police or to the villagers when they were present at the house of the deceased. He has not seen P.Ws.5 and 6 at Togapur. On 11-3-2004, he examined P.Ws.5 and 6 at 11 AM in his office at Kodangal. P.Ws.4 to 6 have not stated before him that they were informed by Narsi Reddy and Hanmi Reddy that they received telephonic message from Thogapur that the deceased was killed by the accused. P.Ws.2,3,14 and 15 have not stated before him that A-3 came to Togapur village and shouted saying that the deceased beat him. P.W.4 was examined at the time of inquest between 3-30 PM and 6-30 PM on 10-3-2004. According P.W.4, the scene of offence is at Allapur. When P.W.13-Investigating officer visited Allapur to collect the evidence with regard to kidnap of the deceased, he came to know that P.Ws.5 and 6 witnessed the incident. After arresting the accused, in furtherance of the confession statements made by the accused, he along with panchas and staff followed the accused to the scene where the deceased was beaten to death in Nacharam village limits. He conducted another panchanama of scene of offence in the limits of Nacharam village and drawn rough sketch. Thus, according to P.W.13,the scene of offence is within the limits of Nacharam village. As per Ex.P-9, the scene of offence is at distance of 1 KM towards road side and