THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1188 of 2007 JUDGEMENT: (Per Hon’ble Sri Justice Raja Elango) This appeal is filed under Section 374 (2) of the Code of Criminal Procedure, 1973, against the Judgment, dated 16.08.2007, passed in S.C.No.309 of 2006, on the file of the Court of the Principal Sessions Judge, Nalgonda, whereunder and whereby the appellants/A.1 to A.3 were found guilty of the offences under Sections 147, 148 and 302 r/w 149 I.P.C., and were convicted therefor and sentenced to undergo rigorous imprisonment for one year each for the offence under Section 148 I.P.C., however, no separate sentence was awarded for the offence under Section 147 I.P.C., and imprisonment for life and to pay a fine of Rs.1000/- each, in default, to suffer simple imprisonment for three months each for the offence under Section 302 r/w 149 I.P.C. Both the sentences were directed to run concurrently. A.4 and A.5 were acquitted of the said offences. The brief facts that are necessary for the disposal of this case are as follows: P.W.1-Gandikota Laxmaiah, who is the son of Narsaiah (hereinafter referred to as ‘the deceased’), lodged a report with the police of Narketpally on 09.06.2005 alleging that his father has land disputes with A.1 and in that connection several panchayats were held; that on 09.06.2005 at about 9.00 a.m., while he was going to his native place from Nakkalapally on a scooter and his father on a bicycle, A.1 to A.3, armed with axes, hacked his father and A.4 and A.5 were standing aside holding sticks; that on hearing the cries of his father, he went to the scene of occurrence and on seeing him all the accused fled away from the scene; that his father was grasping for breath and that with the help of Chandraiah and Yellaiah, he shifted his father to Kamineni Hospital in an auto and on the way to hospital his father died. Based on the said report, the Police of Narketpally registered a case in crime No.76 of 2005 for the offence under Section 302 r/w 34 I.P.C. After completion of investigation, the police have laid charge sheet against the accused for the offences under Sections 147, 148 and 302 r/w 149 I.P.C for having committed the murder of the deceased. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.8, besides case properties M.Os.1 to 7. Though none was examined on behalf of the accused, Exs.D.1 to D.4 were marked. P.W.1, who is the son of the deceased and who set the law into motion by way of lodging Ex.P.1-report, deposed with regard to the presence of the accused and the manner in which they attacked the deceased. P.W.2, who is also related to the deceased deposed that on hearing the incident through two girls, he reached the place of occurrence and saw the deceased and during the last breath of the deceased, he gave water to him. He further deposed that the deceased informed him that he was attacked by the accused. P.W.3, who is known to the accused as well as the deceased, deposed on the same lines of P.W.1 that A.1 to A.3 attacked the deceased and A.4 and A.5 were present in the place of occurrence. P.W.4, who is the wife of the deceased, is not an eyewitness to the occurrence. She deposed that her husband was attacked, as such she rushed to the scene of occurrence, where she found her husband with cut injuries on hand, fingers, arm and stomach and that he was grasping for life. P.W.5, who is an auto driver, deposed that he took the deceased in his auto from the place of occurrence to the hospital as per the request of P.W.6. He also deposed that the deceased succumbed to injuries on the way to hospital. P.W.6, who is native of the same village, deposed that he drafted the complaint. He also deposed that he is not having any personal knowledge about the occurrence. P.W.7 is the photographer. He speaks about taking of photographs of the deceased. P.W.8 is a witness to the observation mahajor-Ex.P.3. He deposed that the police have held inquest over the dead body of the deceased in their presence and he found injuries on the body of the deceased on head and face. P.W.9, who is a witness to the recovery of M.Os.1 to 3, deposed that he said M.Os were recovered on the basis of the confession given by A.1 to A.3. P.W.10 is the Civil Assistant Surgeon, who conducted post mortem over the body of the deceased. For better appreciation of the entire case, the evidence of the said witness regarding the injuries is reproduced hereunder: “1. One depressed fracture on left side of the frontal region 8 x 6” brain deep. 2. Chopped wound in the occipital region 8 x 2 cms. 3. Stabbed injury right side lambar region 3 x 2 x visral deep. 4. Laceration left forefinger 1 x ½. 5. Abrasion left side neck 4 x ½. 6. Abrasion left shoulder 2 x 1 cms. 7. Abrasion right forefinger ½ x ½. 8. Laceration over the right shoulder back side 2 x ½ x ½. 9. Laceration on the nasal bridge 1 x 1 cms.” P.W.11, who is working as an Inspector of Police, deposed about the registration of crime, investigation conducted by him, arrest of the accused, recovery of weapons and filing of charge sheet, after completion of investigation. On the basis of the evidence adduced by the prosecution through the above said witnesses, the learned Judge, while acquitting A.4 and A.5 convicted and sentenced A.1 to A.3 as stated supra. Challenging the conviction and sentence, A.1 to A.3 filed the present appeal. Heard the learned counsel for the appellants as well as the learned Public Prosecutor and perused the records. Admittedly, in the present case, P.Ws.1 and 3 claims to be the eyewitnesses. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants/A.1 to A.3 mainly contended that even though P.W.1 in his evidence deposed regarding the overt acts against the appellants, he has not stated the same either in the complaint or during the investigation by the Investigating Officer. On perusal of Ex.P.1 complaint, it is evident that P.W.1 stated in the said complaint that A.1 to A.3 were in possession of axes, but while deposing in the Court, he has specifically stated that A.1 and A.2 were armed with axes and A.3 was armed with a sickle and they hacked the deceased. But the same was not stated either in the complaint or before the Investigating Officer. The said evidence adduced by the witness is a material improvement from the earlier version. Further, in his evidence P.W.1 has specifically attributed overt acts to A.1 to A.3 that A.1 was armed with an axe and hacked on the right side of the neck of the deceased; A.2 was armed with an axe and hacked on the left side of the neck of the deceased and A.3 was armed with a sickle and hacked on the right side chest of the deceased. The said evidence is totally contrary to the medical evidence produced by the prosecution since P.W.10- the doctor, who examined the deceased specifically stated as follows: “It is true I have mentioned in Ex.P.8 that the death is due to head injury. It is true a laceration and abrasion caused with a blunt edged weapon and incised injury can be caused with sharp edged weapon and sickle is a sharp edged weapon. It is true that if a blow is caused on the neck with sharp edged weapon it can result in deep incised injury. I have not noticed any incised injury on the neck of the deceased. All the injuries Nos.1 and 2 are found on the head of the deceased.” Therefore, the evidence of P.W.10 totally shattered the evidence of P.W.1, and the presence of P.W.1 at the place of occurrence is highly doubtful. Further, P.W.6, who claims to have scribed the complaint, in his chief examination deposed that he went to the place of occurrence, on hearing the said occurrence, and he specifically stated “I gave phone to P.W.1 and advised the relatives of the injured to take him to hospital”, which clearly indicates the person, who drafted the complaint informed the Court that he intimated the said occurrence to P.W.1 through phone. Hence, it is clearly established that P.W.1 is not an eyewitness to the occurrence. P.W.3 admitted in the cross examination that even though he stated in the chief examination regarding the involvement of A.1 to A.3, he has not stated the same before the Investigating Officer. The improvement made by P.W.3, more particularly, in connection with the overt acts of the accused concerned is a material improvement, which certainly cause prejudice to the accused concerned. Further, Ex.P.1, which was lodged by P.W.1 in the police station, was also supported by the evidence of Investigating Officer, whereas, P.W.6 specifically stated that he only drafted the complaint, but he never visited the police station. Further, in the cross examination, P.W.4, who is the wife of the deceased, introduced another theory stating that the complaint was drafted by the Sub Inspector of Police as per her dictation. But, however, she admitted that “It is true that one Jagan Reddy wrote the complaint”. The evidence of P.Ws.4 and 6 in connection with the theory of lodging of complaints creates a doubt as to whether the complaint was actually lodged by the witness concerned at the time of occurrence or not. Further, the evidence adduced by the wife of the deceased clearly indicates that P.W.1 is not the person who lodged the complaint. The prosecution relied on the complaint lodged by P.W.1, who claims to be the eyewitness. Even though P.Ws.1 and 3 deposed with regard to the presence of A.4 and A.5 at the place of occurrence, the evidence adduced by the Investigating Officer with regard to the presence of A.4 and A.5 would show that at the time of occurrence, A.5 was not present at the place of occurrence and he was at the examination hall, which is at a distance of 140 K.Ms from the place of occurrence. When A.4 and A.5 are not present in the scene of occurrence, the evidence of P.Ws.1 and 3 that A.4 and A.5 were present at the scene of occurrence armed with sticks creates a doubt. In view of the same, in a case of serious nature, more particularly for the offence under Section 302 I.P.C., which is punishable with minimum imprisonment of life, we are of the view that it is highly unsafe to rely on the evidence of P.Ws.1 and 3 in convicting the appellants. Hence, the impugned order is liable to be set aside. Accordingly, the convictions and sentences recorded against the appellants/accused Nos.1 to 3 for the offences punishable under Sections 148 I.P.C and 302 r/w Section 149 I.P.C., in Sessions Case No.309 of 2006, dated 16.08.2007, by the Principal Sessions Judge, Nalgonda, are hereby set aside. The accused shall be set at liberty forthwith, if they are not required in any other case. The bail bonds of the accused shall stand cancelled. Fine amount, if paid, shall be refunded to them. In the result, the Criminal Appeal is allowed. _________________ A.GOPAL REDDY, J _________________ RAJA ELANGO, J Dt.20.04.2011 va