HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL. NO. 994 OF 2010 Dated:23-08-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Methri Saigonda & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL (Sr). NO.13880 OF 2008 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State preferred this appeal questioning the acquittal order, dated 2.11.2006 passed in S.C.No.102 of 2003 on the file of VII Additional Sessions Judge (Fast Track Court), Nizamabad at Bodhan acquitting the respondents-A.1 to A.4 for the offences punishable under Sections 302 and 324 r/w Section 34 I.P.C. 2. The accused and prosecution witnesses belong to Kopparva Village. A.1 and A.4 are brothers and A.2 and A.3 are sons of A.4. The deceased is the brother of P.W.1 and distant relative of accused. The deceased and accused, as per prosecution case, got lands adjacent to each other in outskirts of Kopparga village and there is enmity between the accused and the deceased in respect of lands. That on 21.9.2002 A.1 while ploughing his land ploughed the bund between his land and the land of younger brother of deceased namely, Aligolla Poshetty. Due to ploughing of bund, there was damage to chilly crop of P.W.1. There took place an altercation between P.W.1 and A.1. On 22.9.2002 at 5.00 a.m. the deceased went to his land to graze the cattle. Then A.1 to A.4 are alleged to have beaten the deceased, with prior disputes in their minds, on his head with ‘loha’ sticks and when P.W.1 intervened, the accused have beaten P.W.1 with sticks. The deceased was shifted to Government Hospital at Bodhan and therefrom he was shifted to Government Headquarters Hospital, Nizamabad. On 22.9.2002 at 8.00 a.m. P.W.1 gave a complaint with Bodhan Police Station alleging that A.1 to A.4 have beaten his brother-deceased with loha sticks and he sustained head injury and that he was also beaten with sticks. On the basis of the said complaint, a case in Crime No.266 of 2002 was registered for the offence under Section 324 r/w 34 I.P.C. While undergoing treatment, the deceased died at 11.30 a.m. on 22.9.2002 itself. P.W.6, the Inspector of Police, who registered the case, took up investigation. He sent P.W.1 to hospital for treatment. P.W.7 treated P.W.1 for his wounds and issued wound certificate-Ex.P.9. P.W.10 took over further investigation and after completion of investigation, he laid the charge sheet against the accused for the offences alleged. 3. To substantiate the case of the prosecution, P.Ws.1 to 10 were examined and Exs.P.1 to P.14 were marked besides material objects 1 to 8. On behalf of defence, D.W.1 was examined and Exs.D.1 to D.3 were marked. 4. The learned Sessions Judge after appreciation of oral and documentary evidence was of the opinion that the prosecution miserably failed to establish the enmity between the accused party and deceased party and that it has also failed to establish the scene of occurrence. After the deceased took the cattle at 5.00 a.m. for grazing, within 5 minutes P.W.1 going in the same direction without there being any lands of him at that place is suspicious and that his evidence in Ex.P.1 and statement in Section 161 Cr.P.C. is at variance. The learned Sessions Judge disbelieved the evidence of P.Ws.2 and 3 about their witnessing the incident, which fact has also not been spoken to in Ex.P.1. It was held that the incident proper has not happened in the manner as projected by the prosecution and that the recovery of M.Os.1 to 4 has also not been proved by the prosecution. The statements of mother and wife of the deceased stated to have been recorded by P.W.10 discloses that they are also witnesses to the incident, but the prosecution failed to examine them in the Court and thus, the prosecution miserably failed to bring home the guilt of the accused and accordingly acquitted all the accused from the charges with which they stood charged. 5. We have heard the learned Public Prosecutor and gone through the material on record. 6. The evidence of P.W.1 shows that the deceased had no lands nearer to the scene of occurrence and therefore, there is no necessity for him to go to the scene of occurrence that too at 5.00 a.m. According to P.W.1, one day prior to the incident, chilly crop standing in his lands was damaged due to ploughing of bund by A.1, existing between his lands and the lands of P.W.1. On the date of incident, at 9.00 a.m. P.W.6-investigating officer observed the scene of offence in the presence of P.W.4 and L.W.7 and prepared a report in Ex.P.2 and a sketch map in Ex.P.3. According to observation report-Ex.P.2, the land of the deceased is situated at a distance of 20 yards away from the scene of occurrence. There are no lands belonged to A.1 in any direction near the scene of occurrence. Further P.W.1 has also no land near the scene of occurrence. Therefore, as rightly observed by the learned Sessions Judge, the scene of occurrence is doubtful. Since it is the September month, it is fully rainy season and usually there would be dark at 5.00 a.m. Therefore, it cannot be believed that the deceased went out to graze the cattle at 5.00 a.m. Though the wife of the deceased was cited as L.W.4, the prosecution did not choose to examine her in the Court and her evidence was given up. P.W.7, the doctor who treated P.W.1 and issued Ex.P.9-wound certificate stated that the age of the injuries is 15 minutes prior to his examination, and whereas, according to P.W.1, at 8.00 a.m. on the date of incident, he reached Bodhan Police Station, presented Ex.P.1 report and the police examined him. In the cross-examination, he stated that within 5 or 10 minutes after the deceased left for the lands, he too went there and immediately 10 or 15 minutes after the incident, he came back to the house. Therefore, P.W.1 receiving the injuries at 5.00 a.m. in the alleged incident cannot be believed. In the cross-examination, P.W.2 admitted that the scene of occurrence is at a distance of one kilometer to the village, and whereas, P.W.10 stated that the scene of occurrence is at a distance of two or three kilometers from the village. If at all there is any dispute, it is only in between A.1 and the brother of deceased i.e. P.W.1. Had the P.W.1 really seen A.1 causing fatal injury to deceased, he would have mentioned the same in Ex.P.1 itself. As per Ex.P.1 report, there was only an altercation resulting in simple injuries and basing on that report, police registered a case for the offence under Section 324 r/w 34 I.P.C. After intimation of death of deceased, Ex.P.1 was not altered to Section 302 r/w 34 I.P.C. If at all P.W.1 witnessed the attack on the deceased, the same would have been mentioned in Ex.P.1 itself, but the said fact has not been stated in Ex.P.1. Further in Ex.P.1, registered at 8.00 a.m., P.W.1 did not state specifically that A.1 beat the deceased with loha stick. But, when P.W.7 examined P.W.1 soon after registration of Ex.P.1, P.W.1 stated that A.1 beat the deceased with loha stick. Further the non- examination of mother and wife of the deceased, who are said to be the eyewitnesses to the incident is also fatal to the case of the prosecution. The learned sessions Judge after elaborately discussing the said evidence, rightly came to the conclusion that the prosecution miserably failed to establish the guilt of the accused. 7. The Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 8. In the absence of any substantial and compelling reasons pointed out by the learned Public Prosecutor, we cannot come to a different conclusion than the one reached by the Court below. We see no merit in the appeal. 9. The appeal is accordingly dismissed. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J AUGUST 23, 2010 Tsr.