THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.351 of 2007 Between Korri Venkanna Babu @ Venkanna … Appellant and State of Andhra Pradesh, Rep. by Public Prosecutor, High Court … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE R.KANTHA RAO Criminal Appeal No.351 of 2007 Oral Judgment: (per D.S.R.Varma, J.) Heard Smt. Naseeb Afshan, learned Counsel appearing for the appellant-sole accused and the learned Public Prosecutor appearing for the respondent-State. 2. This criminal appeal is directed against the judgment dated 09-01-2007 in Sessions Case No.225 of 2006 passed by the Principal Sessions Judge, West Godavari at Eluru in convicting the accused for the offence under Section 302 of IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine o Rs.500/-, in default to suffer simple imprisonment for six months. 3. The case of prosecution, in brief, is that -- the accused is the son of one Korri Mukkayya alias Tammaiah, son of Mutyalu, aged 43 years, resident of Jagannadhapuram village, Jeelugumilli Mandal (hereinafter referred to as ‘the deceased’). The accused was addicted to vices and used to spend away all his earnings. On 24-01- 2006 at about 10 p.m., when the deceased was sleeping in the house, the accused came in late night and he was reprimanded by the deceased, due to that the accused grew wild, picked up an axe and hacked the deceased twice resulting in his death. Seeing the said incident, the mother and sister of the accused (P.Ws.2 and 3) raised cries and then P.Ws.4 to 6 came to the scene of offence and saw the deceased dead. Then the accused was allegedly tied to a tree and was beaten. Then the Police was informed and investigation was pressed into service. The other legal formalities have been complied with before charge-sheet was filed. 4. The accused pleaded not guilty for the charge under Section 302 of IPC framed against him before the trial Court. 5. The prosecution, in order to substantiate its case, examined P.Ws.1 to 14 and marked Exs.P-1 to P-20 and also M.Os.1 to 4. No oral or documentary evidence was adduced on behalf of the defence. 6. The trial Court after taking into consideration the material available on record, recorded the order of conviction against the accused and sentenced him to the punishment, as stated above. 7. Aggrieved by the said judgment of conviction and sentence, the accused has preferred the present appeal. 8. The point that falls for consideration in this appeal is -- whether the trial Court had appreciated the evidence on record properly or not ? 9. Point:- P.Ws.2, 3 and 8, who are the mother, sister and a neighbour of the accused, are cited as eyewitnesses to the incident, whereas P.Ws.4 to 7 are cited as circumstantial witnesses. 10. Hence, first it is necessary for us to examine the evidence of the eyewitnesses. 11. In this context, it is to be noted that P.Ws.2 and 3, who are the material witnesses having allegedly seen the offence being committed by the accused, had turned hostile. Their testimony could not be shattered by the cross-examination in any manner. Therefore, their evidence is of no worth for any purpose. 12. Therefore, we have to necessarily rely on the other facets of the evidence on record i.e., P.Ws.8 and 4 to 6. P.W.8 stated that when he was sleeping in his house at about 10 p.m., he heard the cries of P.Ws.2 and 3 from their house. Then he woke up and came out of the house and had seen the accused hacking the deceased and running away from the house. Thereafter, according to him, P.Ws.4 and 5 caught hold of the accused and tied him to a tree. 13. But, in the cross-examination, he had categorically admitted that in his statement recorded by the Police under Section 161 Cr.P.C., he did not state that his house is situate adjacent to the house of the deceased and further that at about 9.30 or 10 p.m., while he was sleeping he heard the cries of P.Ws.2 and 3 and woke up and came out of the house. He also denied the statement that he informed the Police that he saw the accused running away from the scene of offence and then P.Ws.3 and 4 caught hold of the accused. 14. Therefore, in the cross-examination of P.W.8 what appears is that there is omission on all the vital aspects. What he did not state before the Police in his statement recorded under Section 161 Cr.P.C., have been stated for the first time in the Court. Obviously these are all the embellishments, which cannot be relied on, inasmuch as such embellishments or omissions relate to the vital aspects. 15. P.W.4 deposed that he saw P.Ws.2 and 3 were weeping in the house and he also saw the body of the deceased and they informed him that the accused had hacked the deceased with an axe. Then himself, P.Ws.5, 6 and 8 caught hold of the accused and tied him to a tree in front of the house of accused. Then they telephoned to police station and informed the incident. Next day morning at 6 a.m., the Police came and took the accused to the police station. The Police visited the scene of place and observed the same and an observation report was also got written by the Village Assistant. He further deposed that the deceased used to scold the accused that he was not attending the coolie work regularly prior to that incident. The Police had recovered the clothes and M.O.1 axe at the scene of place. 16. The evidence of P.Ws.5 and 6 also goes on the same lines as was stated by P.W.4. 17. What is further to be noticed is -- the Investigating Officer P.W.14 had categorically deposed that P.W.4 did not state in Section 161 Cr.P.C., statement that P.Ws.2 and 3 had informed him that the accused hacked the deceased with the axe and further that P.W.4 did not state the name of P.W.8 and specifically did not state that the accused was tied to the tree. P.W.14 further deposed that P.W.4 did not inform him that he telephoned to the police station about the offence and further that, P.W.4 also did not state before him that on the next day morning at 6 a.m., the accused was handed over to the Police. 18. In the light of the evidence of the Investigating Officer P.W.14, the evidence of P.W.4 is to be seriously doubted. As already noticed, there are any number of improvements and omissions on material aspects. 19. It is to be further seen from the evidence of P.Ws.4 to 6 that they were present at the scene of offence only after the commission of the offence, that is P.W.4 in his testimony had stated that -- “… … … I saw P.W.2 and her daughter P.W.3 were weeping in the house and I also saw the deadbody of the deceased and they informed me that this accused has hacked the deceased with an axe. … … …” 20. Therefore, when they are not eyewitnesses to the commission of the offence, it is highly improbable for them to give all these particulars. The only piece of evidence that can be taken into consideration from their testimony is only to the limited extent of their immediate presence after the commission of the offence alleged at the hands of the accused. 21. Now, coming to the evidence of P.W.8, the trial Court itself did not accept the said evidence, inasmuch as the same is full of contradictions and not capable of inspire any confidence of the Court in order to arrive at the conclusion that the accused alone is the responsible person for the commission of the offence. 22. It is to be seen that P.W.8 also claims to be an eyewitness but there are so many omissions and conflicting versions as already pointed out by the trial Court and we do not have any reason to add any more reasons than the reasons already assigned by the trial Court. 23. Therefore, for the aforementioned reasons, we are of the view that the trial Court was in serious error in appreciating the evidence on record and the evidence that is available on record is totally either not trustworthy or does not support the case of prosecution, particularly the evidence of P.Ws.2, 3 and 8, who are allegedly the eyewitnesses. In view of the said facts, the findings recorded by the trial Court are liable to be set aside, inasmuch as the evidence on record was not properly appreciated. Accordingly, the conviction and sentence recorded by the trial Court against the accused are also liable to be set aside. 24. In the result, the appeal is allowed and the impugned judgment of conviction and sentence, dated 09-01-2007, in Sessions Case No.225 of 2006, passed by the Principal Sessions Judge, West Godavari at Eluru, is set aside and consequently, the appellant-sole accused is acquitted and he shall be set at liberty forthwith, if not required in any other case. The fine amount, if any, paid by the appellant shall be refunded to him. __________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE R.KANTHA RAO 16th November, 2009. Ak