THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE N. RAVISHANKAR CRIMINAL APPEAL Nos.222 & 1188 of 2008 COMMON JUDGMENT: (PER T HE HON’BLE SRI JUST ICE N. RAVISHANKAR) Appellants in Crl.A.No.222 of 2008 are accused Nos.4 and 5, and appellants in Crl.A.No.1188 of 2008 are accused Nos.1 and 2 in Sessions Case No.26 of 2006 on the ﬁle of the Court of III Additional District & Sessions Judge (Fast Track Court), Asifabad, Adilabad District (trial court). As they arise out of the same case, they are being disposed of by this common judgment. The aforesaid sessions case arose out of Cr.No.45 of 2004 of Police Station, Tallagurijala. 2. For convenience, appellants shall be referred to as accused. They along with A3 Sundilla Ravi were tried for oﬀences/ charges punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code, 1860 (for short IPC) for committing the murder of o n e Pendli Mallaiah alias Mallesh in an unlawful assembly and rioting with dangerous weapons. There is some defect in framing the charges. The trial court, however, after considering the evidence by its judgment dated 8.2.2008 acquitted A-3, but convicted the accused of the oﬀence punishable under Section 302 read with Section 34 IPC and sentenced each of them to life imprisonment and also to pay a ﬁne of Rs.2,000/- with default clause prison sentences. They ﬁled these appeals questioning that judgment. As these are appeals from convictions, the whole matter is at large before this court and hence the matter has to be considered in detail. 3. P.W.1 P.Rambai who is the de facto complainant is the mother while P.W.2 Shravan Kumar and P.W.3 Anil Kumar are the sons of the deceased. One Sarada is wife of the deceased and she deserted him for some time and lived with him for some time but on the date of the incident she is said to be living away from the deceased. P.W.1 was residing at Ravindra Nagar hamlet of Chinnabuda Village within the limits of Tallagurijala Police Station. A - 1 Rasabathula Sudhakar @ Shekar, A-2 Rasabathula Chandra Shekar @ Chandu and A-3 Sundilla Ravi are residents of Srirampur, A - 4 Rasabathula Ganesh @ Laddu is a resident of Bellampally and A-5 Dupam Gattaiah is a resident of Bopparam and he is the brother of Sarada who is the wife of the deceased. The above aspects are not in dispute. 4. It is stated in the charge sheet ﬁled by P.W.12 Mohd. Rajack Khan, the then Circle Inspector of Police, Bellampally, (having jurisdiction over Police Station, Tallagurijala) that some time prior to the incident A-1 was in jail and during his custody period the deceased took away the wife and children of A-1 and did not reveal their address to him and therefore A- 1 had a grudge against the deceased. It is further alleged that A-5 Dupam Gattaiah also had a grudge against the deceased as he harassed his wife Sarada and as she happens to be the sister of A-5. It is then stated that A-1 to A-5 are close associates and therefore at the instance of A-1 and A-5 all of them hatched a plan to kill the deceased and with that object on the night of 10.8.2004 at about 8.30 PM all of them armed with deadly weapons went to the house of P.W.1 where the deceased was staying and dragged him out and took him to a distance of about 20 feet away from P.W.1’s house to a bore well in the Bellampally road in that night and attacked him. It is further alleged that in that transaction A-4 and A-5 caught hold of the deceased while A-1 and A-2 inflicted stab wounds killing him on the spot. 5. It is the prosecution version that subsequently on the same night P.W.1 gave Ex.P.1 report in police station Tallagurijala and ultimately P.W.12 completed the investigation and ﬁled the charge sheet against A-1 to A-5 for the aforesaid oﬀences on the plea that his investigation disclosed that they are responsible for the murder of the deceased. It must be mentioned here itself that against the acquittal of A-3 the prosecution did not ﬁle any cross-appeal challenging the same. We are now concerned only with the appeals of A-1, A-2, A- 4 and A-5 from their convictions. 6. So far as the homicidal death of the deceased is concerned and the place where it occurred, Sri C.Padmanabha Reddy, the learned Senior Counsel appearing for the appellants did not raise any dispute. It may also be noted that the prosecution has examined P. W. 1 0 Dr.M.Neelakanteswar Rao, the then Civil Assistant Surgeon of the Government Area Hospital, Mancherial to prove about the injuries found on the body of the deceased and Ex.P.17 post mortem report and also Ex.P.18 report of the Forensic Science Laboratory and Ex.P.19 ﬁnal opinion given by P.W.10. The evidence of P.W.10 and the above documents show that the deceased died of hemorrhage due to multiple injuries and those injuries are enough in the ordinary course to cause his death. We therefore ﬁnd that the prosecution is able to establish the homicidal death of the deceased which is the ﬁrst requirement to be proved in a murder case. 7. The plea of the accused is that they are not responsible for the death of the deceased and they have been falsely implicated. S r i C.Padmanabha Reddy amplifying the above plea of accused pointed out that the evidence of P.Ws.1 to 3 who are examined as eye- witnesses would show that there are material discrepancies in their versions about the overt acts attributed to the accused and that they are also not consistent with regard to the motive for attack and therefore their evidence cannot be relied upon to sustain the charges. He pointed out the various circumstances which weigh against prosecution and argued that the trial court ignored the same and erroneously recorded convictions. On the other hand, the learned Additional Public Prosecutor pointed out that there is no ﬂaw in the evidence and the judgment of the trial court is a well considered one and there is no ground to interfere with it. We have now to see whether the evidence on record is enough to sustain convictions of the accused recorded by the trial court which is the second requirement for the prosecution to prove its case. 8. It may be noted that P.Ws.1 to 3 who are close relatives of the deceased have been examined as eye- witnesses and the case rests on their evidence. Regarding the occurrence of the incident, the version of P.Ws.1 to 3 is that on the night of 10.8.2004 at about 8.30 pm when the deceased after dinner was sleeping A.1 to A.5 entered the house of P.W.1 and asked her about the deceased and then dragged him out towards the bore well area on the Bellampally road which is about 20 feet away from the house of the P.W.1 and there A.1 to A.5 assaulted him. 9. It is the version of P.Ws.1 to 3 that they also followed them and saw the incident of assault. Regarding the overt acts, P.W.1 stated that A.2, A.3 and A.5 held the deceased and A.1 and A.4 stabbed him on his chest and right arm. P.W.2 stated that A.3 to A.5 held the deceased and A.1 and A.2 stabbed him while P.W.3 stated A.4 and A.5 held the deceased and A.1 to A.3 stabbed him. What should be noted is that all the three are consistent with regard to the overt acts attributed to A.1, but not with regard to other accused. The Public Prosecutor relied upon the said evidence to support the impugned judgment. It should however be noted that Ex.D.1 which is a relevant portion of Section 161 statement of P.W.1 made before the police is important. In Ex.D.1 statement which is spoken to by the investigating oﬃcer i.e., P.W.12, P.W.1 stated that when A.1 to A.5 entered her house and were intimidating P.W.1 she pleaded with them not to cause any harm to the deceased and tried to follow them, but at that juncture A.1 Rasabathula Sudhakar @ Shekar threatened her with a knife and at that threat she stated that she did not venture out of the house while A.1 to A.5 dragged out the deceased. This Ex.D.1 further shows that not only herself but also her grand son which means P.W.2 and P.W.3 also did not go out of the house. Her further version in Ex.D.1 is when they went out after accused left with the deceased, they found the deceased lying with stab wounds and the next version is that since A.1 to A.5 dragged him out they must have stabbed him. 10. The above Ex.D.1 statement of the P.W.1 before the police would show that P.W.1 did not go out of the house and see the alleged incident of assault and she came out with an improved version in trial that she saw the assault by accused. It should also be noted here that P.W.2 Sravan Kumar and P.W.3 P. Anil Kumar were aged 18 years and 15 years respectively when their evidence was recorded in January, 2007. Thus, on 10.8.2004 i.e., the date of the incident, they should have been aged around roughly 14 years and 12 years. Having regarding to their tender ages, it is improbable to believe that they would have ventured out of the house to follow the accused when their grand mother herself stated that they did not go out because of the threat of A.1. This raises a reasonable doubt about the prosecution case as contended by the learned counsel for the appellant that P.Ws.1 to 3 are eye-witnesses. 11. What is clear from Ex.D.1 is that the prosecution plea that P.Ws.1 to 3 were eye-witnesses becomes doubtful and the discrepancies found in the evidence of P.Ws.1 to 3 regarding overt acts to accused other than A.1 only strengthens the said doubt. It will be seen that P.Ws.1 to 3 spoke about the overt acts of A.1 consistently but this by itself cannot clear the above doubt created by Ex.D.1. There is no other evidence with regard to the actual assault showing the complicity of accused. The trial court ignored the above reasonable doubt created by Ex.D.1 and, in our opinion, committed an error in treating P.Ws.1 to 3 as eye-witnesses to the assault on the deceased. 12. That takes us to another circumstance which we have to mention and adjudicate. It should be noted that P.Ws.1 to 3 were however consistent in their evidence that on the night of the date of incident before the actual assault occurred accused i.e., A.1, A.2 A.4, A.5 and A.3 also who has been acquitted by the trial court came to their house and dragged out the deceased. The question now is whether that evidence of P.Ws.1 to 3 can be believed and if so whether accused can be fastened with the liability for the death of the deceased just on that ground holding that accused have to explain the death of the deceased going by the rule enacted in Section 106 of the Evidence Act, 1872, which says that when any fact is especially within the knowledge of a person, the burden proving of that fact lies upon him. In other words, the rule is if accused are found to have taken away the deceased and soon thereafter his dead body is found nearby the place from which the deceased has been taken then normally it is for the accused to explain what happened to the deceased and how he suﬀered injuries. When this rule of evidence was taken to the notice of Sri C. Padmanabha Reddy he pointed out that the evidence of P.Ws.1 to 3 cannot be believed even to show that accused came to the house of P.W.1 and took away the deceased and pointed out certain circumstances to support that contention. We will now examine the said contention. 13. The investigating oﬃcer in the charge sheet has come up with a two fold motive for accused to kill the deceased. The ﬁrst is that A.5 is the brother of Sarada who is the wife of the deceased and since the deceased harassed Sarada, A.5 developed a grudge towards the deceased and therefore joined with the other accused to kill him. The second is that earlier when A.1 was in jail the deceased took away the wife and children of A.1 and did not disclose their whereabouts to A.1 after his release and therefore, A.1 also developed a grudge to kill the deceased and consequently A.1 and A.5 planned with the other accused and killed the deceased. 14. So far as the motive for A.1 is concerned, the investigating oﬃcer did not gather any material to show as to who are the wife and children of A.1 and when the deceased took them away if that is true. P.W.1 did not speak of this motive at all. However, P.W.2 and P.W.3 stated that A.1 at the time of incident i.e. in the house of P.W.1 questioned the deceased in the ﬁrst instance about the whereabouts of his (A.1) wife and threatened him. They did not however speak the motive of A.5. What should be noted is that the investigating oﬃcer failed to place before the trial court material or evidence about the particulars of A.1’s wife and their children and to further show that the deceased took away A.1’s wife and kept her somewhere along with her children. In the absence of such evidence, the mere allegation that the deceased took away A.1’s wife cannot be accepted as proved. In view of the same it follows that the prosecution version that A.1 had a motive to kill the deceased cannot be upheld. The statements of P.Ws.2 and 3 that A.1 questioned the deceased about his wife in their evidence especially when P.W.1 did not speak of A.1’s motive has to be rejected as tutored as they were subsequently examined after P.W.1 who did not speak about the same. 15. Then turning to the motive of A.5, it may be noted that whatever may be quarrel between the deceased and his wife they lived together and were blessed with four children including P.Ws.2 and 3. It will be found from the version of P.W.3 that his mother herself eloped with somebody when the deceased and his mother were living at Godavarikhani. P.W.2 also stated that after his mother and the deceased went to Godavarikhani his mother left the house and went somewhere without informing them. What should be noted is that the evidence of P.W.2 and 3 does not show that the deceased harassed their mother. In such a situation, the version of the investigating oﬃcer that A.5 had an intention to kill the deceased cannot also be accepted and in any event it will be diﬃcult to accept it. This apart in the evidence, it is not made clear as to how A.5 would stand to gain for himself or it would be a gain for his sister Sarada if the deceased is killed. Thus, the prosecution cannot be said to have proved its case regarding the motive for A.1 and A.5. So far as A.2 and A.4 are concerned, no motive is attributed to them to kill the deceased. 16. P.W.1 in her evidence while speaking about the motive stated that the deceased’s wife Sarada telephoned her about 6 days prior to the incident and questioned her about the deceased and warned her that the deceased would be killed. She again in her cross- examination stated that Sarada telephoned on the same date on which the deceased came to her house i.e., on the date of the incident and threatened to kill the deceased. Her version regarding motive for Sarada and her brother A.5 to kill the deceased is not consistent and clear. It appears that P.W.1 in her anxiety to support the case only laid stress on Sarada’s motive to kill the deceased and she did not speak A.1’s motive at all. In our opinion, the evidence of P.Ws.1 to 3 regarding the motive for A.1 and A.5 to kill the deceased is not satisfactory at all. In such state of evidence regarding motives, the prosecution version that A.1, A.2, A.4 and A.5 went to the house of P.W.1 on the night of the incident also becomes doubtful. It may be noted that normally where the evidence relating to the occurrence is consistent, motive may not assume importance. However, in this case, the evidence of P.Ws.1 to 3 in view of Ex.D.1 statement shows that their version that they have seen the incident has become doubtful. In such a case, the version of P.Ws.1 to 3 that accused came to the house of P.Ws.1 to 3 and took away the deceased also becomes doubtful in view of the above state of weak evidence relating to the motive for A.1 and A.5 to kill him. 17. It may also be noted in this connection that P.Ws.1 to 3 have in chorus stated that after the incident all accused boarded an auto-rickshaw and left the scene. The investigating oﬃcer did not trace out this auto-rickshaw and its driver to prove that accused came in that auto-rickshaw or ﬂed away in it to show that accused did visit the house of the P.W.1 on the night of the date of the incident. All these circumstances would show that the prosecution version that accused visited the house of P.W.1 on the night of the date of the incident and took away the deceased must be rejected as not proved. If that is so, it follows that the question of fastening any liability on them for the death of the deceased on the ground that they took him away also does not arise. The learned Public Prosecutor relied upon the panchanamas relating to the recovery of knives from some of the appealing accused and the evidence of the investigating oﬃcer relating to the said recovery. It may be noted that this is not a case where some property such as a wrist watch or a gold chain or some other like property which was said to be on the person of the deceased at the time of the incident in question was recovered from accused. This apart, P.W.8 and P.W.9 panch witnesses for alleged recoveries did not support the prosecution case. In such a situation having regard to the doubtful ocular evidence about the motive and incident, the prosecution version regarding recoveries cannot also be relied upon. 18. The trial court did not consider the above aspects in the evidence and proceeded to convict accused and we are of the view that having regard to the above circumstances, the convictions cannot be sustained. 19. Accordingly, both the appeals are allowed and convictions and sentences recorded by the trial court are set aside. If appellants are in judicial custody they are ordered to be released forthwith, if not required in any other case. Their bail bonds are ordered to be cancelled after the expiry of time available for prosecution to pursue its remedy against this judgment. The trial court order regarding the disposal of the case properties which are all non valuables, is however, directed to be carried out after the expiry of the above time. _____________________ A. GOPAL REDDY, J ______________________ N. RAVISHANKAR, J 9th December 2011 CVRK/GK