THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1670 of 2005 Date: 23.11.2011 Between: M. Venkateswar Reddy and another … Petitioners AND The State of A.P. rep.by P.P. High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1670 of 2005 ORDER: The petitioners are the accused in S.C.No.37 of 2002 on the file of the Assistant Sessions Judge, Markapur. Both of them were charged for the offence under Section 307 of the Indian Penal Code (IPC, for short). A.1 was further charged for the offence u/s.201 IPC. The trial Court convicted both the accused for the offence u/s.307 IPC. A.1 was acquitted for the offence u/s.201 IPC. Each of the accused was sentenced to rigorous imprisonment for a period of three years for the offence u/s.307 IPC and also fine of ` 500/- with appropriate default sentence. The accused, who are unsuccessful in their appeal before the VI Additional Sessions Judge, Markapur, preferred the revision assailing the judgment. 2. The allegations of the prosecution are: a) The accused and PW.1 are residents of B. Cherlopally village. PW.2 is the wife of PW.1. b) PW.1 owned Ac.4.00 cents of land in B. Cherlopally village at the relevant time. By May 2001, he raised cotton in his land. The accused owned Ac.3.00 cents of land in the same village. Their lands abut the land of PW.1. The accused also raised cotton in their lands. c) PW.1 and A.1 jointly dug a bore well in the lands of PW.1. Both of them spent monies for the bore well. PW.1 and A.1 have an understanding that PW.1 should draw water continuously for nine days and that A.1 should draw water continuously for six days thereafter. PW.1 and A.1 had been following the rotation continuously. d) On 28.05.2001, PW.1 was to draw water according to the rotation. At about 1 p.m., A.1 and A.2 approached PW.1 at his house and requested PW.1 to permit A.1 to draw water for two days for his crop. PW.1 declined to concede to his request, as the crop of PW.1 was also getting dried for want of water. A.1 and A.2 went away threatening PW.1. e) PW.1 later went to his fields along with his wife-PW.2 and was watering his crop. At about 4.30 p.m., A.1 and A.2 reached the fields of PW.1. A.1 accosted PW.1 for drawing water for the fields of PW.1. A.1 and A.2 declared that they would do away with the life of PW.1. A.2 thereafter caught hold of PW.1. A.1 picked up a knife from his waist and stabbed PW.1 on his head, on the left side of cheek, on the left collarbone and on the left thumb. PWs.3 and 4 witnessed the same and rushed to the rescue of PW.1. The accused then took to heels. f) A.1 concealed the knife (MO.1) with which he attacked PW.1 in the dung pit near his house to cause disappearance of the evidence of the offence. PW.1 was subsequently taken to the hospital and was treated by PW.7. There were as many as nine injuries on the person of PW.1, out of which two injuries were found to be grievous in nature. g) This is the prosecution story. 3. As already pointed out, A.1 and A.2 were charged for the offence u/s.307 IPC while A.1 was charged for the offence u/s.201 IPC. Both the accused were convicted for the offence u/s.307 IPC. Sri K. Mohan Rami Reddy, learned counsel for the accused contended that there is no evidence whatsoever to establish the commission of the offence by the accused and that the conviction of the accused for the offence u/s.307 IPC is bad. In the alternative, he contended that the intention to commit murder has not been established and that the evidence would at best establish a case u/s.324 IPC. On the other hand, Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor contended that PWs.1 and 2 established the case beyond reasonable doubt and that medical evidence corroborated the evidence of PW.1. 4. The learned counsel for the accused contended that in the complaint under Ex.P.1, the presence of PW.2 at the time of the commission of the offence has not been recorded and that the evidence of PWs.1 and 2 regarding the presence of PW.2 at the time of the commission of the offence cannot be accepted. Indeed, in Ex.P.1 complaint, there is no reference to the presence of PW.2. As rightly submitted by the learned counsel for the Additional Public Prosecutor, FIR is not an omnibus document. Meticulous details need not be incorporated in the FIR. At the same time, if any material fact is not mentioned in the FIR, evidence regarding such a material fact deserves to be doubted. It may be noticed that the case of PWs.1 and 2 is that PW.2 who was present in the fields at the time of the commission of the offence witnessed the same from a distance of about 10 feet and that she took PW.1 to the Markapur Police Station having accompanied by their son. While so, in the FIR, it was merely stated that PW.1 went to the Police Station “along with his people” and reported the crime through Ex.P.1. PW.1 did not even state in the complaint that PW.2 accompanied him to the Police Station let alone pointing out that PW.2 witnessed the commission of the offence. 5. The learned counsel for the Additional Public Prosecutor contended that the absence of referring to the presence of PW.2 in Ex.P.1 is not fatal, as it is not necessary to refer to the presence of the person, who witnessed the incident when PW.1 lodged the complaint. Indeed, her contention is correct. At the same time, it may be noticed that in Ex.P.1, PW.1 referred to the presence of PWs.3 and 4 as witnessing the incident. Where PW.1 could refer to the names of PWs.3 and 4 as witnesses, what prevented PW.1 from mentioning the name of his wife as witnessing the incident is for PW.1 to explain. I consider that the absence of reference to PW.2 as one of the eyewitnesses to the incident in Ex.P.1 complaint rules out the presence of PW.2 at the time of the commission of the offence, in view of this reference to the names of PWs.3 and 4 as witnesses to the incident in Ex.P.1. Thus, the very evidence of PW.2 becomes suspicious and should be construed to be an after thought to strengthen the case of PW.1. This fact shall be borne in mind while assessing the evidence of the witnesses. 6. PWs.3 and 4 are said to be eyewitnesses for the incident. They allegedly saw A.1 catching hold of PW.1 and A.1 attacking PW.1 with the knife. PWs.3 and 4 however did not support the prosecution story. They were considered hostile. The learned trial Judge permitted the Additional Public Prosecutor to put leading questions to PWs.3 and 4. PWs.3 and 4 reiterated their stand that they did not know anything about the commission of the offence. Thus, PWs.3 and 4 whose names are referred to in Ex.P.1 and whose presence was sworn to by PWs.1 and 2 denied their presence, whereas PW.2 speaks about her presence while her name did not figure in the complaint. 7. The learned counsel for the accused also contended that the medical evidence did not agree with the case of the prosecution and that the accused would be entitled to benefit of doubt on account of disagreement between Ex.P.6-wound certificate approved by PW.7 medical officer and the evidence of PWs.1 and 2. PW.1 contended that A.1 stabbed him with a knife on a) his head, b) the left side of his cheek, c) the left collarbone and d) the left thumb. PW.2 deposed that A.1 attacked PW.1 with a knife. She deposed that PW.1 sustained bleeding injuries on the a) left side of the head of PW.1, b) left thumb, c) left collarbone and d) left cheek. Barring for the seat of the injury on the head, PWs.1 and 2 agree regarding the attack on the left thumb, left collarbone and left cheek of PW.1. Even in respect of the head, while PW.1 deposed that the accused caused an injury on the head, PW.2 merely zeroed down the same to the left part of the head. The evidence of PWs.1 and 2, therefore, agree and corroborate each other with reference to the medical evidence. 8. Ex.P.6-wound certificate discloses as many as nine injuries. As already pointed out, PW.7 medical officer opined that injury Nos.7 and 9 were grievous in nature. Injury No.1 is incised wound spread from the left ear to the left side of the mouth. Injury No.2 is an incised wound on the left frontal region. Injury No.3 is on the left side of the parital region. There was only one hit on the head by A.1 according to PWs.1 & 2. However, more than one injury is found on the face including injuries 1 to 3, 7 and 9. No explanation is forthcoming why the head sustained so many injuries if there was only one hit on the left side of the head. Curiously, PW.7 certified that injuries 1 and 2 are possible with a knife, perhaps, because they were incised wounds. PW.7 did not suggest the possible weapon with which other injuries were caused. Be that as it may, the preliminary point is that PW.7 found as many as nine injuries upon the person of PW.1 while PWs.1 and 2 speak about only four overt acts. Thus, there is no agreement between PWs.1 and 2 on the one side and the medical evidence through PW.7 and Ex.P.6 on the other side. When read with Ex.P.1 and the evidence of PWs.1 and 2, this inconsistency of the medical evidence becomes a material discrepancy. 9. Inter alia, it is the case of the prosecution that A.1 took police party to his house and produced MO.1 knife as the knife used by him in attacking PW.1. Ex.P.5 is the report of the mediators. It was scribed by PW.5. PW.6 who was one of the witnesses for the alleged recovery of MO.1 attested Ex.P.5. Both of them did not support the prosecution case. They claimed that PW.8, Sub-Inspector of Police produced MO.1 and told them that A.1 had produced MO.1 before PW.8. Thus, PWs.5 and 6 were not witnesses for the recovery of MO.1. The trial Court was justified in acquitting A.1 for the offence u/s.201 IPC. 10. However, in respect of the offence u/s.307 IPC, where PW.1 did not speak about the presence of PW.2 at the time of the commission of the offence in Ex.P.1, for the reasons already set out, I consider that the evidence of PW.2 cannot be accepted. PWs.3 and 4, who are eyewitnesses, did not support the prosecution case. The solitary evidence of PW.1 remains for the commission of the offence. His evidence regarding the overt acts and the injuries did not agree with the medical evidence. I, therefore, consider that in the overall circumstances, it would not be justified to convict the accused on the basis of the evidence of PWs.1 and 2. The trial Court and the appellate Court erred in appreciating the evidence of PWs.1 and 2 and unjustly concluded that the prosecution brought home the guilt of the accused beyond reasonable doubt. For the reasons set out, the prosecution failed to establish the guilt of the accused for the offence u/s.307 IPC beyond reasonable doubt. The judgment of the appellate Court is erroneous and is liable to be set aside. 11. Accordingly, the Criminal Revision Case is allowed. Both the accused are found not guilty of the offence u/s.307 IPC and are acquitted of the same. Their bail bonds stand discharged. _________________ K.G. SHANKAR, J Date: 23.11.2011 Isn