THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.972 OF 2007 ORAL JUDGMENT: (per THE HON’BLE SRI JUSTICE R.KANTHA RAO) Heard Sri C.Padmanabha Reddy, the learned Senior Counsel, representing the learned counsel appearing for the appellants as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant Nos.1 and 2 are Accused Nos.1 and 5, respectively, in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 17.07.2007, passed by the III Additional District and Sessions Judge (Fast Track Court), Nellore, in Sessions Case No.262 of 2003, convicting the appellant No.1 (Accused No.1) for the offence under Section 302 I.P.C., and sentencing him to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months, and convicting the appellant No.2 (Accused No.5) for the offence under Section 323 I.P.C, and sentencing him to pay a fine of Rs.500/-, in default to suffer simple imprisonment for three months. 4. The facts of the case, in brief, are that, there was political rivalry between the group of accused and the group of P.W.1. At about 05.30 pm., on 28.12.1998, there was a quarrel between two groups and they started pelting stones against each other near Panchayat Office, Kondlapudi. While the quarrel was going on, one Yerogarla Venkaiah (hereinafter referred to as “the deceased”) was coming on a motorcycle, driven by P.W.1, at about 08.00 pm., and when they reached the house of A-3, all the accused surrounded him, A-1 hacked the deceased, with an axe on his head A-3 stabbed him on his right cheek, A-10 stabbed him with a spear on his right thigh, A-7 beat him with spear on his back and that the remaining accused stabbed and beat the deceased with spears, iron rods and sticks indiscriminately, as a result of which the deceased died on the spot. When P.W.2 tried to rescue the deceased, A-5 beat her with stick on her nose and P.Ws.1 to 7 have witnessed the incident. The statement of P.W.1, recorded in the village, was registered as a case in Crime No.237 of 1998 and after completion of all the formalities, police laid the charge sheet against A-1 to A-14. 5. In response to the charges framed under Sections 147, 148, 302, 302 read with section 149 and 323 I.P.C., the accused pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 14 and got marked Exs.P-1 to P- 14, in addition to Mos.1 to 20. On behalf of defence, no oral or documentary evidence was let in, but Exs.D-1 to D-7 were marked. 7. Now, the point that arises for consideration is – whether the conviction and sentence recorded by the trial Court against the appellants/A-1 and A-5 having acquitted the remaining accused on the same evidence can be sustained? 8. The learned Senior Counsel appearing for the appellants would submit that the evidence of P.W.2 is wholly unreliable in view of the fact that she gave a different version in C.C.No.22 of 1999, which was filed by the husband of P.W.2 on the allegation that on the instigation of A-1 and A-13 beat her husband, which indicates that her presence at the time of incident in the present case is almost improbable. The learned Senior Counsel would further submit that the evidence of P.W.5, who was a police constable, at the relevant point of time, on bandobast duty, in the village, also cannot be believed on account of the fact that all the accused in the present case were strangers to him and it was not possible for him to identify the accused and further as per his version he came to know about the identity of the accused basing on the information furnished by the people of the opposite group. 9. On the other hand, the learned Public Prosecutor would submit that since the evidence of P.Ws.2 and 5 with regard to the overt acts is corroborated by the medical evidence, i.e., the postmortem certificate (Ex.P-4) and the evidence of P.W.10, Autopsy Surgeon, the conviction against the appellants has to be upheld. 10. We have given our anxious consideration to the submissions made by the learned Senior Counsel as well as the learned Public Prosecutor. 11. Admittedly, there were two rival groups belonging to different political parties in the village and on the date of incident P.W.5 and two other police constables were deputed to the village because of some disturbance due to occurrence of some untoward incident in the village. There is also no dispute about the fact that prior to the alleged incident, there was pelting of stones between both the groups and it was continued upto such a long time and it was only subsided when the police opened fire at about 09.30 pm. The incident in question was supposed to have taken place, while the pelting of stones, was going on continuously. 12. From the evidence of P.W.10, the Autopsy Surgeon, as mentioned in Ex.P-4, postmortem certificate, he found the following injuries, on the body of the deceased; (1). 10 cm x 3 cm insized would above downwards on occipital bone (back side of the head), Multiple bone pieces and brain matter coming through the above said wound; (2). 4 cm x 3 cms insized wound on right middle of the thigh muscle deep; (3). 3 x 1 cm insized wouind bone deep below the right eye on outer canthus; (4). 2 x 2 cms size abrasion over right temporal region; (5). 8 x 5 cms x 0.5 cm to 1 cm size sickle type abrasion 5 Nos. present over the back. 13. The injury No.1 is attributed to A-1. It is pertinent to note that on the same evidence, the trial Court disbelieved the involvement of the remaining accused and acquitted them, but convicted the appellants without assigning any convincing reason as to how the it could separate the truth from the falsehood. 14. Since P.W.1, who is the informant, did not support the prosecution version and even the report Ex.P-9 alleged to have been given by him and the evidence of the remaining witnesses i.e., P.Ws.3, 4, 6 and 7 having been disbelieved by the trial Court, it has to be seen whether the conviction recorded by the trial Court, basing on the evidence of P.Ws.2 and 5, can be held to be proper? 15. The evidence of P.W.2 shows that her husband is the supporter of the group of the deceased. Therefore, she being a partisan witness, her evidence has to be scrutinized with great care and caution. Her evidence in the chief-examination discloses that at about 07.00 pm., on the date of incident, she went in search her husband Narsaiah after receiving information that he was beaten and at that time she noticed the appellants and the remaining accused present at the place of occurrence arming with axes, spears knives and sticks. According to her version, at the time P.W.1 and the deceased were coming to the village on a motorcycle from Nellore and on seeking them all the accused surrounded the deceased and A-3 stabbed the deceased with a knife on his right cheek, A-1 hacked with an axe on his head, resulting in bleeding injury and on receiving the said injuries the deceased and P.W.1 had fallen on the ground along with the motorcycle. Thereafter, A-10 stabbed the deceased with a spear on his right thigh and the other accused, who were present there, also beat the deceased. When she went to the rescue of the deceased, A-5 beat her with a stick on her nose, resulting in bleeding injury. 16. From the above admissions of P.W.2, in her cross- examination, it is made out that C.C.No.22 of 1999 came to be filed on the file of Special Mobile Court alleging that at about 07.00 pm., on the same day, A-13 beat the husband of P.W.2 on the instigation of A-1. In the said case, the husband of P.W.2 as well as P.W.2 were examined as witnesses. In the course of cross- examination, in the first instance, P.W.2 stated that on receiving information that her husband received injury at about 07.00 pm., she rushed to the scene of offence and found her husband with bleeding injury on the head and she tied the same with a towel and that she did not call her husband to follow her to their house and claims to have witnessed the incident in the present case while her husband was very much present without returning to the house and according to her, her husband was standing with injury while the present incident was going on. 17. In the further cross-examination, when she was confronted with her deposition in C.C.No.22 of 1999, P.W.2 stated that having come to know about the commotion in the village and pelting of stones by two rival groups, she went in search of her husband, found her husband lying on the road with head injury and thereafter she brought her husband to her house and her husband informed her that A-13, by name Khader Basha, beat him with iron pipe on his head at the instigation of A-1, which resulted in bleeding injury on the head. 18. In view of the diagonal opposition and conflicting versions of P.W.2, a serious doubt creates in the mind of this Court about the very presence of P.W.2 at the scene of offence when the actual incident in the present case said to have taken place. Therefore, the contention raised by the learned Senior Counsel appearing for the appellants that because there was pelting of stones in the village and during the course of which P.W.2 might have received a small injury on her nose and she being a person belonging to the faction of the deceased might have been introduced herself as an eyewitness to the present case is probablised. Therefore, we agree with the said contention raised by the learned Senior Counsel that it is quite unsafe to rely on the testimony of P.W.2 who is admittedly a partisan witness. 19. Further, from the evidence of P.W.5, who was a police constable on bandobust duty in the village, at the relevant point of time, what could be gathered is that at 08.00 pm., while he was on duty, he witnessed P.W.1 and the deceased coming on a motor cycle from Nellore to Kondlapudi village and thereafter the accused group stopped them and immediately he warned the accused group to leave the place but still they attacked the deceased. According to this witness, A-1 beat the deceased on the head of the deceased causing bleeding injury and the other 12 accused also beat the deceased with sticks and spears, causing injuries. 20. It is pertinent to note that this witness did not speak about the presence of P.W.2 at the scene of offence. Similarly, P.W.2 also did not speak about this witness interfering and warning the group of the accused not to attack the deceased, which indicates that the presence of these two witnesses seems to be doubtful at the relevant point of time. 21. Further, all the accused, including the appellants, are admittedly were strangers to P.W.5. The incident occurred in the year 1998 whereas P.W.5 gave evidence in the year 2006 that is almost eight (8) years after the occurrence. P.W.5 admitted that no test identification parade was conducted and he came to know about the identity of the accused only basing on the names furnished by the persons of opposite faction. 22. In view of the above conflicting versions about the presence of P.W.2 and P.W.5, the evidence of P.W.5 also creates a doubt in the mind of the Court inasmuch as no test identification parade of the appellants was conducted and hence his evidence cannot be relied upon. Further, this witness though admittedly present at the scene of offence from the beginning, spoke only about the overt acts attributed to A-1 but did not speak about the overt acts attributed to the remaining accused. This also creates a doubt in the mind of the Court as to the presence of this witness at the scene of offence at the relevant point of time. 23. Therefore, in our considered view, the trial Court, which rejected the testimony of these witnesses i.e., P.Ws.2 and 5, insofar as the other accused, ought not to have placed reliance to order conviction of the appellants (A-1 and A-5). Therefore, the conviction recorded by the trial Court against the appellants cannot be sustained in view of the fact that the trial Court did not assign any reason as to how it could separate the truth from falsehood to record conviction against these appellants only. In any event, the evidence of P.Ws.2 and 5 being totally inconsistent and highly discrepant, it is not known as to how the trial Court had based the same for convicting the appellants. Therefore, the conviction and sentence, passed by the trial Court, against the appellants are liable to be set aside. 24. In the result, the Criminal Appeal is allowed, setting aside the judgment, dated 17.07.2007, recording the conviction and sentence, passed by the III Additional District and Sessions Judge (Fast Track Court), Nellore, in Sessions Case No.262 of 2003, against the appellants and the appellant (Accused No.1), who is undergoing jail sentence, in connection with this case, shall be set at liberty forthwith, if he is not required in any other case. The appellant No.2 (Accused Nos.5) had already been released from jail after undergoing the sentence, awarded by the Court below. The fine amount, if any, paid by them shall be refunded to them. _____________________ JUSTICE D.S.R.VARMA ______________________ JUSTICE R.KANTHA RAO 04TH AUGUST 2009 LMV/KRK THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.972 OF 2007 (Judgment of the Division Bench delivered by THE HON’BLE SRI JUSTICE R.KANTHA RAO) 04TH AUGUST 2009