THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.215 of 2010 Date: 03.02.2010 Between : The State of A.P., rep.by the Public Prosecutor, High Court of A.P., Hyderabad. … Appellant. And Ammpalli Pedda Sivudu and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.215 of 2010 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor appearing for the appellant- State. 2. Appellant is the State and respondents are accused in the Sessions Case. 3. This Criminal Appeal, by the State, under Section 378 (3) and (1) of Cr.P.C., is directed against the judgment, dated 08.02.2005, in Sessions Case No.11 of 2003, passed by the Special Sessions Judge for Trial of Cases under S.Cs. and S.Ts. (P.O.A.) Act, Mahabubnagar, acquitting Accused Nos.1 to 27 for the offences punishable under Sections 147, 148, 323, 324, 302 read with 149 I.P.C., and Section 3 (i) (x) of S.Cs. and S.Ts. (POA) Act, 1989. 4. The case of the prosecution, in brief, is that on 27.7.2001 at about 12-00 mid night, the defacto complainant lodged a complaint with Peddakothapalli police stating that on the same day at about 2-00 hours, the accused, who are the residents of Kalwakole village, have forcibly taken his son, by name Namala Balaswamy from his house when he was sleeping in front of his house, and took him to the village chavidi, beat him severely. At that point of time, eight more persons also beat his son and eventually all of them took his son to burning haystack of P.W.5 Yashodamma and killed him there. At about 6-00 a.m., they tied the hands and legs of the deceased-Namala Balaswamy and threw him into the burning flames, that when he tried to rescue his son, the accused beat him with a stick on his head and other parts of the body. Basing on Ex.P-1 report, the S.I. of Police registered a case in Crime No.48 of 2001 under Sections 147, 148, 323, 324, 342, 307, 302 read with 149 I.P.C., and Section 3 (i) (x) of S.Cs. and S.Ts. (POA) Act, 1989 and took up investigation. After completion of investigation and necessary formalities, the police laid the charge sheet against Accused Nos.1 to 27 for the offences punishable under Sections 147, 148, 323, 324, 302 read with 149 I.P.C., and Section 3 (i) (x) of S.Cs. and S.Ts. (POA) Act, 1989. 5. When the charges were read over and explained to the accused, they pleaded not guilty and claim to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 20 and got marked Exs.P-1 to P-17, besides marking MOs.1 to 4 material objects. On behalf of the accused, none were examined, except marking Ex.D.1, marked portion of Section 161 Cr.P.C. statement of P.W.1. 7. The trial Court, having considered the entire material including the evidence, both oral and documentary, available on record, found all the accused not guilty of the offences with which they were charged and accordingly acquitted them of the said charges. Aggrieved by the same, the State has preferred the present criminal appeal. 8. Since A-5 and A-21 died, the case against them is abated. 9. The learned Public Prosecutor contended that the trial Court was in error in disbelieving the evidence of P.W.1 father of the deceased, who spoke about the commission of offence by the accused, on the ground there are material discrepancies and omission in his evidence. He also contended that though the ingredients to constitute the offences with which the accused were charged are made out by the prosecution, the trial Court found not guilty of the said offences and acquitted all the accused. Therefore, he prays to allow the appeal by setting aside the impugned judgment of the trial Court. 10. Now, the point that arises for consideration in this criminal appeal is whether the Court below was right in appreciating the evidence on record before arriving at a conclusion that the accused are not guilty of the offences with which they were charged? 11. It is to be seen that most of the witnesses examined by the prosecution, particularly P.Ws.4 to 11 and 14, turned hostile. Of course, P.W.16 doctor, who conducted the Postmortem examination on the dead body of the deceased, found some slab injury and also burn injuries. 12. Among the witnesses, who spoke about the commission of offence at the hands of the accused, P.W.1 father of the deceased is the only person, who gave Ex.P-1 report and was also cited as eye witness. In this back ground, the trial Court scrutinized the evidence of P.W.1 with elaboration and arrived at the conclusion that the facts putforth by P.W.1, both in Ex.P-1 report as well as before the Court, could not establish the guilt of the accused beyond all reasonable doubt. 13. It was pointed out by the trial Court that P.W.1 categorically deposed that his family i.e., his children are naxalites and that the deceased also was a naxalite. But, no where in Ex.P-1 report, it was mentioned that the accused beat the deceased at Panchayat office and also at haystack of P.W.5 Yashodamma. At this juncture itself, it is necessary to point out that P.W.5 was treated as hostile. Further, it was also pointed out by the trial Court that P.W.1 did not disclose the names of all the accused in Ex.P-1 report. It is settled law that at the earliest point of time i.e., at the time of giving first information report in the shape of Ex.P-1 itself, the names of all the accused shall have to be mentioned. In the instant case, all the accused belongs to the same village and in such an event, nothing prevented P.W.1 to make a mention about the names of all the accused, who were involved in the commission of offence. Failure on the part of P.W.1 in mentioning the names of all the accused in Ex.P-1 report and making allegations for the first time in the Court in his testimony would have to be viewed as an attempt to improve the case and the same amounts to material omission. 14. It is the further testimony of P.W.1 that nearly 400 to 500 villagers were gathered at the place where the deceased was beaten and eventually done to death by the accused. In such circumstances, the trial Court had categorically recorded a finding that it is highly impossible to identify particular persons in the gathering, particularly when P.W.1 could not point out about the specific overtacts before the police against any of the accused, nor could mention the names of all the accused in Ex.P-1 report. 15. Therefore, the testimony of P.W.1, which is crucial in this case, cannot be treated as trustworthy and the case of the prosecution is liable to be held as highly improbable, inasmuch as it is highly difficult for anybody to identify particular persons from a large gathering of nearly 400 to 500 villagers, who were present at the time of commission of offence, particularly in the absence of specific mention about the names of the perpetrators of offence in Ex.P-1 report. Therefore, the trial Court has rightly given the benefit of doubt to the accused. 16. The reasons assigned by the trial Court, while arriving at the conclusion that the prosecution failed to prove the guilt of the accused for the offences with which they were charged, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. We do not find any illegality or irrationality in the judgment rendered by the trial Court. 17. For the foregoing, we see no merits in the criminal appeal and the same is liable to be dismissed. 18. In the result, the criminal appeal is dismissed, at the stage of admission, confirming the judgment, dated 08.02.2005, in Sessions Case No.11 of 2003, passed by the trial Court. _________________________ JUSTICE D.S.R.VARMA ______________________________________ JUSTICE NOOTY RAMAMOHANA RAO 03.02.2010. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO CRIMINAL APPEAL No.215 of 2010 03.02.2010 (Msr)