THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1619 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the II Additional Sessions Judge, Warangal in S.C.No.97 of 2003 on 22.07.2004. The appellants herein, who are accused Nos.1 and 2 were prosecuted for the offences under Sections 302, 307 and 323 IPC alleging that on 15.10.2002 at 8.30 P.M, P.W.2 and deceased Mamidala Srinu went to the Kirana shop of the accused to purchase Amber Ghutka and at the same time three unknown persons gave Rs.10/- to accused No.2 and took one Amber and two Ashiki Ghutkas. Thereafter, P.W.2 and deceased gave Rs.5/- and took two Amber ghutkas from accused No.3. Then one of the three persons, who purchased earlier ghutkas started quarreling with accused No.2 on the ground that, accused No.2 had not given him Amber ghutka and challenged that if accused No.2 shows the same with him, he will give Rs.200/-, if not accused No.2 has to give him Rs.200/-. At that time, accused No.1 asked accused No.2 switched the lights and check the same. But accused No.1 gave them Amber ghutaka without checking them. When P.W.2 asked as to why he gave the ghutaka to them without checking, in that regard, a quarrel took place between accused No.2, deceased and P.W.2 and exchange of hot words, meantime accused No.1 interfered and quarreled with P.W.2 and deceased and beat them with hands. Later, accused No.2 went inside of the house and picked up a knife with an intention to kill P.W.2 and deceased and pierced with it in the stomach of P.W.2, seeing it the deceased interfered to rescue P.W.2, accused No.2 stabbed the deceased on his stomach resulting the deceased fell down on the ground with bleeding injuries. Thereafter, P.W.2 left the scene and informed the parents of the deceased and they rushed to scene of offence and shifted the deceased to Government Hospital, Parkal in a jeep, where the doctor examined him and declared dead. Thereafter, P.W.1 gone to the police station and lodged a complaint, which was registered as a case in Crime No.167 of 2002 and issued the FIR. The investigating officer has visited the scene of offence and conducted the scene of offence Panchanama and held inquest over the dead body of the deceased. On 24.10.2002 at 10.00 hours accused Nos.1 and 2 surrendered before the Investigating Officer and in pursuance of their confession recovered the knife used in the commission of offence from the house of accused at the instance of accused No.2. After completion of investigation, police filed the charge sheet against the accused. The learned Sessions Judge has framed the charges under Sections 302 and 307 IPC against accused No.2 and under Section 323 IPC against accused No.1. Both the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 12 and got marked Exs.P.1 to P.20 and M.Os.1 to 5. No oral and documentary evidence was adduced on behalf of the accused. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused No.1 guilty for the offence under Section 323 IPC convicted and sentenced to undergo simple imprisonment for a period of one month and to fine of Rs.500/- in default to suffer simple imprisonment for 7 days. Accused No.2 was convicted for the offence under Section 304-II IPC and sentenced to undergo rigorous imprisonment for a period of 4 years and also to pay fine of Rs.1,000/- in default to suffer simple imprisonment for 2 months. Accused No.2 was further convicted for the offence under Section 324 IPC and sentenced to undergo simple imprisonment for 1 year. Aggrieved by the said conviction and sentence, the present appeal is filed by the accused therein. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Sections 323 IPC against accused No.1 and under Sections 304 Part-II and 324 IPC against accused No.2 beyond reasonable doubt? P O I N T: The appellants’ counsel has pleaded that the only evidence available on record with regard to the incident is only P.W.2 and the motive attributed to the accused for attacking P.W.2 and deceased was not established by the prosecution. Moreover, on the same day, a quarrel took place between P.W.2, deceased and one Sambaiah and the dead body of the deceased was found lying after the incident in the lane leading to the house of Sambaiah, therefore there is every possibility of offence should have been committed by Sambaiah. The deceased got lent an amount of Rs.16,000/- as a loan from one Raji Reddy, but in spite of demands made by Raja Reddy and deceased; P.W.2 has not paid the amount. Therefore, P.W.2 has got animosity with the deceased in connection with the demand of said amount. Therefore, the allegations made against the accused are not proved beyond reasonable doubt. The learned Additional Public Prosecutor on the other hand has pleaded that the evidence of P.W.2, who is injured along with the deceased, supported by the evidence of Doctor, P.W.9 clearly establishes the commission of offence by the accused. Therefore, the lower Court has rightly convicted the accused. According to the prosecution on 15.10.2002 P.W.2 and deceased gone to the Kirana shop of the accused to purchase Amber Ghutka and at the same time three unknown persons gave Rs.10/- to accused No.2 and took one Amber and two Ashiki Ghutkas. Thereafter, P.W.2 and deceased gave Rs.5/- and took two Amber ghutkas from accused No.2. Then one of the three persons, who purchased earlier ghutkas started quarreling with accused No.2 on the ground that, accused No.2 had not given him Amber ghutka. At that time, accused No.1 asked accused No.2 check the same. But accused No.1 gave them Amber ghutaka without checking them. When P.W.2 asked as to why he gave the ghutaka to them without checking, in that regard, a quarrel took place between accused No.2, deceased and P.W.2 and exchange of hot words, meantime accused No.1 interfered and quarreled with P.W.2 and deceased and beat them with hands. Later, accused No.2 went inside of the house and picked up a knife with an intention to kill P.W.2 and deceased and pierced it in the stomach of P.W.2, seeing it the deceased interfered to rescue P.W.2, accused No.2 stabbed the deceased on his stomach resulting the deceased fell down on the ground with bleeding injuries. Subsequently, when he was shifted to hospital, he was declared as dead. P.W.1, who is the father of the deceased, stated that on 15.10.2002 on a Dasara Festival day himself and his son (deceased) were sleeping in their house, at about 8.30 P.M., P.W.2 asked the deceased to come out to go to the shop to purchase Ambar Gutka, in spite of his objecting the same, he took the deceased. After 15 minutes, P.W.2 again came and informed that accused Nos.1 and 2 killed his son. Immediately, himself and his wife went and saw the deceased lying by the side of the house of accused with bleeding injuries. With assistance of one K.Kumar, he shifted the deceased to Government Hospital, Parkal in a jeep, where he was declared as dead. They brought the dead body in the same jeep to the police station and lodged a complaint with the police, which is Ex.P.1. Therefore, P.W.1 is not an eyewitness to the incident and he was informed by P.W.2 that the deceased was stabbed by the accused. P.W.2, who accompanied the deceased, has stated that on 15.10.2002 on the Dasara Day at about 8.30 P.M. he came out of his house and found the deceased standing in front of his house and both of them went to the shop of accused No.1 to purchase of Gutka. The said shop was being run by accused No.2 while accused No.1 is working as RTC conductor. When they reached the shop they found an altercation of heated words between accused No.1 on one side and three unknown persons on other side. The said altercation was going on with regard to purchase of gutka. Accused No.2 advised accused No.1 to switch on electric light and verify the stock of Ambar Gutka. After some time the said three persons challenged accused No.2 and as such accused No.2 gave one packet Ambar Gutka to them and they went away. Accused No.1 asked him and the deceased as to why they supported the said three persons. Thereafter, accused Nos.1 and 2 attacked them and beat him. At that time, accused Nos.1 and 2 were in a drunken condition. Accused No.2 beat the deceased and as such he fell down. Accused No.1 beat him. Thereafter accused No.2 went inside his house, brought one knife and stabbed the deceased on his stomach. Then accused No.1 caught hold of the hands and asked accused No.2 to stab him also. Accused No.2 stabbed him on the left side of his stomach with same knife. He received bleeding injury. He tried to lift the deceased but he could not lift him. Thereafter, he went and informed about the incident to his brother and family members of the deceased. His brother took him to the police station. Therefore, according to him when the deceased was standing in front his house, he took him to the shop of accused No.2 for purchase of Gutka, but according to P.W.1, P.W.2 came to their house while the deceased and himself were sleeping and asked him to accompany him to the shop of accused for purchase of Gutka, in spite of his resistance, he took him out of his house. With regard to the quarrel that took place between some unknown persons and accused Nos.2 and 1, there is no material on record to establish the said fact except the evidence of P.W.2. It is not the case of P.W.2 that they supported the said unknown persons in the quarrel took place between them and the accused; as such they attacked on them. Therefore, the alleged motive for the accused to attack on them is their supporting the unknown persons in the said quarrel was not established by the prosecution. P.W.2 admitted that there is no enmity between him and accused No.1 and the deceased never informed him about the enmity between him and the accused. Therefore, from the above admissions, it is evident that there was no previous enmity between P.W.2, deceased and accused. He denied that he did not state before the police that when they reached the shop of accused, they found an altercation between accused Nos.1 and 2 on one side and three other persons on the other side and he did not state that accused No.1 asked him and deceased as to why they supported the said three persons and thereafter, accused Nos.1 and 2 attacked them. He also denied that he did not state before police that accused No.2 beat the deceased, as such he fell down and that accused No.1 beat him and that he fisted accused No.1 twice and that accused No.1 caught hold of his hands and asked accused No.2 to stab him also and that he tried to lift the deceased, but he could not lift him. But the investigating officer, P.W.8 who has recorded the statement of P.W.2, has admitted in the cross-examination that P.W.2 did not state before him that when he reached the shop of accused, he found an altercation between accused Nos.1 and 2 on one side and three other persons on the other side. He also did not state before him that accused No.1 asked him and deceased as to why they were supporting the three persons and that at that time accused Nos.1 and 2 were in drunken condition and accused No.2 beat the deceased, as such he fell down, and that accused No.1 beat P.W.2 and that P.W.2 fisted accused No.1 twice. He also did not state before him that accused No.1 caught hold of his hand and asked accused No.2 to stab him. P.W.2 also did not state before him that he tried to lift the deceased but could not do so. Therefore, the said facts stated by P.W.2 with regard to accused No.2 stabbing him was not stated by him before the police. According to P.W.2, he was stabbed on the left side of the stomach and he received bleeding injuries. P.W.9, Doctor who examined P.W.2 has stated that he found one stab injury on left groin. According to him, at that time P.W.2 and his relatives were in a hurry to take him to M.G.M. hospital, Warangal. They asked him to refer P.W.2 to M.G.M. hospital, Warangal. They also damaged furniture of the hospital and window panel for quick treatment. By the time P.W.2 was brought to the hospital, he had first aid from a private doctor. Immediately, he referred P.W.2 to M.G.M hospital, Warangal. Ex.P.14 is the certificate issued by him, basing on the report received from M.G.M. hospital, Warangal. As per the said report there was no damage to the lungs and intestine of P.W.2. P.W.9 admitted in his cross-examination that the injury mentioned in Ex.P.14 was superficial injury and the said injury is simple in nature. Therefore, P.W.2 sustained only superficial simple injury and not bleeding injury as stated by him. Moreover, according to P.W.9 prior to his examination he was already treated by a private doctor, but whereas P.W.2 denied about his getting treatment by private Doctor. Moreover, according to P.W.2 after the incident, himself and his brother gone to the police station within 15 minutes of the incident and the sub- inspector of police recorded his statement, at that time his brother and the deceased’s mother and sister were present in the police station. According to P.W.8, sub-inspector of police, who has issued the F.I.R has only stated that on 15.10.2002 at 10.00 P.M., he received complaint Ex.P.1 from P.W.1 and registered the case in Crime No.157 and 2002 and issued the FIR. Thereafter, he recorded the statement of P.Ws.1 and 2 and referred P.W.2 to Government hospital, Parkal for treatment. The incident has taken place at 8.30 P.M. and Ex.P.1 was given at 10.00 P.M. According to P.W.2, within 15 minutes of the incident, he has gone to the police station along with his brother, but the said fact was not admitted by P.W.8, who has issued the FIR. He denied about his recording the statement of P.W.2 prior to issuing the FIR. P.W.1 has not stated about P.W.2 accompanying them to the police station for lodging the complaint. P.W.2 admitted that the deceased got lent him Rs.16,000/- as a loan from one Raji Reddy. But according to him, he returned back the said loan amount and denied that himself and deceased quarreled with each other with regard to the refund of said amount, whereas P.W.1, father of the deceased stated at the time of incident P.W.2 was still due the said amount to Raji Reddy and further stated that P.W.2 paid the said amount 10 days after the said incident. Therefore, as on the date of incident the amount got lent by the deceased through Raji Reddy to P.W.2 was not repaid by him. P.W.2 also admitted that on the date of incident, during day time, he and deceased moved together and had a drink and quarreled with one Sambaiah and thereafter the deceased went to his house and he went to his house and slept. According to P.W.1 one Sambaiah is residing on the back side of house of accused No.1 and a quarrel took place between Sambaiah and on one side and Naresh and deceased on other side. They beat each other. His wife went and brought back the deceased. Again the said Naresh came on the night of the incident and took away his deceased son. Therefore, as on the date of incident in the day time a quarrel took place between the deceased, P.W.2 and Sambaih. Admittedly, no complaint was given to the police with regard to the said incident by any one of them. Therefore, in the above circumstances, it is not safe to rely upon the sole testimony of P.W.2. P.W.3, who is the neighbour of the P.W.1, only shifted the deceased to the hospital in his jeep. According to him, P.W.2 came and informed him about accused Nos.1 and 2 stabbed the deceased. But the said fact as admitted by him was not stated to the police. Moreover, it is not the case of P.W.2 that he has gone and informed P.W.3 about the incident. According to Investigating Officer, P.W.12 that accused Nos.1 and 2 surrendered before him and confessed about the commission of offence and he recorded the same in the presence of P.Ws.5 and 6 and at the instance of accused No.2, he recovered the knife from his house. P.Ws.5 and 6 turned hostile to the prosecution and not supported the case of the prosecution with regard to arrest of accused and recovery of M.O.1 at the instance of accused No.2 from his house. According to P.W.1 the village sarpanch and other elders settled the matter, in which accused No.1 and his elder son executed a document promising to give their house to him as they had no money. The said settlement took place on the next day evening of the incident. Since then he has been residing in the said house. So far the registration of the said house was not affected in his favour. Accused Nos.1 and 2 are residing in another house by the side of Bus stand Parkal. Ex.P.2 is the agreement dated 16.10.2002 executed by accused No.1 and his elder son in favour of P.W.1. Ex.P.2 was executed in the presence of village elders. The said document was executed to do justice to the minor children of deceased as he is no money, he did not register the same in his favour. Therefore, on the next day of the incident, Ex.P.2 was got registered in favour of P.W.1 by the accused. Ex.P.2 agreement of sale said to have been executed by accused No.1 and his elder son in favour of deceased’s daughters Priyadarsini and Priyanka represented by their guardian Rajitha. As per the said document, they agreed to sell the said house for Rs.5,00,000/- and received Rs.4,50,000/- on that day and after receipt of Rs.50,000/- they ready to execute the registered sale deed in their favour. As admitted by P.W.1 no money was paid by him under Ex.P.2. In the cross-examination he admitted that accused Nos.1 and 2 were taken to the police station and Ex.P.2 was drafted in the police station. When Ex.P.2 was drafted in the police station on the next day of incident, the question of surrender accused Nos.1 and 2 before the police on 24.10.2002 does not arise. Therefore, the recovery of M.O.1 at their instance is also doubtful. The recovery of M.O.1 was not established by the prosecution as P.Ws.5 and 6 mediators turned hostile to the prosecution. Therefore, in view of the above, it is not safe to rely upon the sole testimony of P.W.2 to convict the accused and the accused are entitled to the benefit of doubt. In the result, the appeal is allowed. The conviction and sentence passed by the learned II Additional Sessions Judge, Warangal in S.C.No.97 of 2003 dated 22.07.2004 is hereby set aside and the accused Nos.1 and 2 are acquitted for the offences under Sections 323, 304 Part-II and 324 IPC. _______________________ P.DURGA PRASAD, J 25th November, 2011 Ksp