THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.486 of 2007 Date of Judgment: 28-09-2010 Between: Tambi Srinu @ Srinivasulu, S/o.Mastan, aged 34 years, Chemban Reddy, Reddypalem And two others ..Appellants and State of A.P. rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE RAJA ELANGO Crl.A.No.486 of 2007 Oral Judgment: (Per Honourable Sri Justice A. Gopal Reddy) 1. Appellants - Accused 1 to 3, who faced the trial in S.C.No.152 of 2006 before the VII Additional District and Sessions Judge, Prakasam Division, Ongole for the charge of murder of Koduri Yanadi Reddy on 30.04.2003 at 8.30 a.m. for the offence punishable under Section 302 r/w 34 of Indian Penal Code (for short ‘IPC’) have convicted for the said offence under Section 235(2) Cr.P.C. and sentenced to suffer imprisonment of life and to pay a fine of Rs.1000/- each, in default to suffer simple imprisonment for one month each, by judgment dated 10.11.2006 filed this appeal against the conviction and sentence recorded against them. 2. The case of the prosecution is that A.1 and A.2 are brothers, A.3 is uncle of A.1 and A.2, who are residents of Reddypalem village of Kothapatnam Mandal. Deceased, P.W.1 wife of the deceased and P.W.3 brother of the deceased were also of the same village. About three years prior to the date of incident, when A-1 tried to rape P.W.1, she lodged a complaint against him and on which, a crime was registered and the same was compromised in the presence of village elders. From that date, accused bore grudge against the family of the deceased. While so, on 30.04.2003 between 8.00 and 8.30 a.m., P.W.1 served food to her husband and after taking his meals, the deceased husband went behind the house nearer to the house of Vengaiah(who was not examined). Near the house of Vengaiah, where A.3 was talking with Koduri Venkateswarlu(P.W.6) at that time, A.1 along with other accused came there. At that time, A.1 armed with an axe and chased the deceased and the deceased ran from that place to rescue himself from the hands of the accused. While running, the deceased fell down near the well situated on the southern side of the house of Koduri Ramanadam, then all the accused came upon him and A.3 caught hold of the legs of the deceased, A.1 and A.2 inflicted injuries with an axe and sickle like knife on his shoulders and also on his head. Due to the injuries, the deceased died on the spot. P.W.1 and her son P.W.2, who witnessed the incident, cried aloud. Then P.W.3, elder brother of the deceased, and neighbours came over to the place of incident and witnessed the incident. On seeing P.Ws.1 to 3 and the neighbours, the accused ran away from there. P.W.1 K.Swathi, went to the police station of Kothapatnam and presented Ex.P1 complaint. The SI of police, Kothapatnam (P.W.13) registered the complaint as a case in Crime No.25 of 2003 for the offence punishable under Section 302 r/w 34 IPC and issued FIR (Ex.P.22). P.W.14 the Inspector of Police, Ongole Town on receipt of information, jumped into action, visited the scene of offence, observed the scene of offence under Ex.P13 and conducted inquest (Ex.P14) in the presence of P.W.8 and L.W.10 mediators and also drafted a sketch Ex.P25. Later, P.W.14 held inquest over the dead body in the presence of P.W.8 and others and prepared Ex.P14 inquest report. 3. Thereafter, P.W.14 examined P.Ws.1 to 6 and others and recorded their statements and after conclusion of the inquest, the dead body was sent to the Government Hospital, Ongole for post-mortem examination. P.W.12, the doctor working at District Hospital, Ongole conducted autopsy over the dead body of the deceased at 4.30 p.m. on the same day and issued Ex.P21 post-mortem certificate stating that approximate time of death is 24 hours prior to the post-mortem examination and the cause of the death is due to multiple anti-mortem injuries. During the course of investigation, P.W.14 arrested the accused on 09.05.2003 and on interrogation, recorded the confession of A-3 under Ex.P26. On 12.05.2003, A.1 and A.2 surrendered before the Court. After receipt of relevant reports and completion of investigation filed charge sheet against all the accused, which was numbered as P.R.C.57 of 2003 by the III Additional Munsif Magistrate, Ongole. 4. On committal, a charge under Section 302 read with 34 IPC has been framed against all the accused and the same has been read over and explained to them in Telugu, which they denied. 5. Prosecution in order to substantiate its case, examined P.Ws.1 to 14 and marked Exs.P1 to P27 and M.Os.1 to 4. The learned Sessions Judge found that the evidence of P.Ws.1 to 13 who are eyewitnesses to the incident and all the villagers expressed during the course of inquest as recorded in Col.No.15 categorically establishes the case of the prosecution and the prosecution is able to establish the guilt of the accused, and convicted the accused for the offence as afore mentioned. 6. Smt.A. Gayathri Reddy, learned counsel for the appellant, would contend that the incident has not happened as protested by the prosecution, which is evident from the evidence of P.W.1 and also Ex.P1 report. According to P.W.1’s evidence, the deceased was served with food and he had food at 8.30 a.m. and within few minutes thereafter A.1 and A.2 attacked the deceased. Whereas, P.W.12, the doctor who conducted autopsy over the dead body at 4.30 p.m. on the same day has opined that approximate time of the death of deceased was about 24 hours prior to the examination. Further, the post-mortem report under Ex.P21 and evidence of P.W.12 also discloses that the intestine empty and also the stomach is empty. If the deceased had died at 8.30 a.m. after the incident happened, the food particles will be present in the stomach and the post-mortem, which was conducted within 8 to 9 hours also discloses that the food has taken by the deceased 24 hours prior to the post-mortem examination. Therefore, the incident has not happened in the manner as described by the prosecution. To substantiate her argument, strong reliance has been placed on the judgment of the Hon’ble Supreme Court in MOTI v. STATE OF U.P.[1] and also judgment of this Court in SARAGULA BAPIRAJU AND OTHERS v. STATE OF A.P.[2] Further, she contends that P.Ws.4, 5, 6, 9 and 10 turned hostile including panch witnesses for seizure of M.Os.1 and 2. Therefore, prosecution failed to establish the seizure of M.Os.1 and 2 on the confession made by the accused and the same cannot be said to be the evidence put against the accused and the confession and recovery of M.Os.1 and 2 cannot be used against the accused since the death has occurred some where in the mid night and only after seeing the dead body, the case has been foisted due to enmity against the accused, who are entitled for acquittal. 7. Rebutting the above contentions, learned Public Prosecutor submits that P.Ws.1 to 3 are the natural eyewitnesses to the incident, who are none other than the wife, son and elder brother of the deceased, who are residing in the same house and incident has taken place near the house they have and the same was witnessed by them. The medical evidence of the doctor P.W.12 only probablises the date and time of the death cannot be an accurate. Therefore, the conviction and sentence recorded against them not required any interference. 8. In the case on hand, P.W.1 is the wife of the deceased, who lodged a complaint stating that on 30.04.2002, the deceased husband was murdered at about 8.30 a.m. and she gave food to her deceased husband at 8.00 or 8.30 a.m. and after taking meals, the deceased went near the house of Vengaiah(A.3) and the deceased was talking with Koduri Venkateswarlu(P.W.6) and at about 8.30 a.m., all the accused came there and chased the deceased husband, A.1 was armed with axe, A.2 armed with knife and deceased came near the well situated on the southern side of the deceased’s house, at that place deceased fell down as thorny bushes were hit to the legs of the deceased. A.3 caught hold of the legs of the deceased, A.1 hacked the deceased with axe on his neck, shoulders and also on head, A-2 also hit the deceased with a knife on the shoulders, neck and head and due to the said injuries, he died on the spot. She and her children witnessed the incident and cried aloud. Her brother-in-law P.W.3 and neighbours came there, on seeing them accused ran away. She lodged a complaint and police examined her. Accused killed her husband having bore grudge with the incident happened about three years prior to the date of incident, for which complaint was lodged, crime was registered and accused was sent to Court, which was later compromised with the intervention of elders. In her cross-examination, it is observed that she alone went to the police station and lodged a complaint and she might have been reached the police station at 9.00 a.m., i.e., half an hour after the incident. Ex.P1 might have written by the police on her dictation and she do not know what was written in Ex.P1, but after complaint, the contents were read over to her and she affixed her thumb impression. 9. P.W.2 also corroborated the evidence of P.W.1 in all respects stating that the deceased had meals at 8.30 a.m. and went near the house of A.3 and then all the accused came there, A.3 caught hold of the legs of the deceased, A.1 beat with an axe, A.2 with a knife, both hacked on the shoulders, neck, back and head of the deceased. P.W.3 the elder brother of the deceased, who resides in a portion of the house, also stated that she stayed in the house along with the deceased brother at 8.30 a.m. while he stood in front of the house, accused chased the deceased and he fell down nearby the southern side of the house, A.1 caught hold of the deceased, A.1 holding axe and A.2 holding knife attacked the deceased. M.Os.1 and 2 are the same, which were used by A.1 and A.2. Then he raised cries. He deposed in the cross-examination that when he raised cries, he did not venture to go near to the deceased due to the fear of the accused and accused ran away. 10. P.Ws.4 to 6, who were declared as hostile by the prosecution, not supported the case of the prosecution. P.W.7 is the photographer, who took the photos. Exs.P5 to P12 are photos with nagatives. P.W.8 is the witness to the inquest report and also to the scene observation report. P.W.9 is a witness, who arrested A.1 to A.3. He identified his signature on Ex.P15 the arrest mediatornama of A.3 dated 09.05.2003, and on Exs.P16 and P17 the arrest mediatornamas of A-1 and A-2 dated 21.05.2003. P.W.10 is a witness to the seizure of M.Os.1 and 2 on the confession made by A.1 and A.2 under Exs.P19 and P20. P.W.12 is the doctor, who conducted post-mortem examination of the deceased, and he found the following anti mortem injuries over the dead body of the deceased: 1. An incised injury behind right ear 2” across the neck measuring 6” length 3” width bone deep on explory the injury fracture of Certbra at the level of C4 and C5. 2. Incised wound on the right shoulder size 5” X 2” on exploring the injury fracture of right shoulder bone. 3. Incised wound on the left shoulder 3” X 2” muscle deep. 4. Incised wound on the right side of the back 4” X ½” X skin deep. 5. Incised wound right side back below injury No.4. size 6 X 1” skin deep. 6. Incised wound on the left temporal region sixe 6” X 2 fracture temporal bone left ear cut into two pieces. 7. Incised wound on occipital area 6” X 2” X bone deep and he stated that approximate time of the death of the deceased was about 24 hours prior to his examination and Ex.P21 is the post-mortem certificate issued by him and in the cross-examination, he also stated that he has mentioned in post-mortem report Ex.P21 that intestine is empty and also stomach is empty. Abdomen is a headline. If any body took food, it will take time of three hours to go to rectum last part of large intestine depending upon the person’s health, it will take 4 to 6 hours to go to the last end and injuries are caused due to M.Os.1 and 2. P.W.13 is the Inspector of Police, who registered the crime and forwarded the FIR Ex.P22 to the Magistrate. 11. If we go by the medical evidence of the doctor P.W.12, he categorically deposed that the approximate time of death was about 24 hours prior to his examination and his evidence also clearly establishes that the stomach and intestine of the deceased were empty. But, according to the evidence of P.Ws.1 and 2, deceased took food at 8.30 a.m. and soon thereafter, he was attacked by A-1 and A-2. There is no dispute that the post-mortem examination was started at 4.40 p.m. on the same day, i.e. within eight hours after the incident. The deceased died instantaneously after taking the food. The doctor found that there are no indigested food particles in the abdomen. Therefore, if we carefully weigh the evidence of P.Ws.1 and 2, though we may not agree with the learned counsel for the petitioner that they are interested witnesses, but their evidence had not been corroborated with the medical evidence. Therefore, their presence and witnessing the incident is doubtful and the time of the death is doubtful. Further, there was enmity between A-1 and P.W.1, since A-1 tried to rape the wife of the deceased three years prior to the present incident for which a crime has been registered, which ended in compromise with the interference of elders and thereafter, there is no dispute between the parties for constituting an ambition for A-2 and A-3 participating in the crime along with A.1 to do away and kill the deceased. The Supreme Court and also this Court under the above referred judgments held that the medical evidence cannot be just said as ‘no consequence’ when the prosecution story rests upon the evidence that soon after the consumption of food, the murder has taken place and the medical evidence has not been corroborated with the evidence of prosecution witnesses about the deceased consuming food and it is obligatory of the prosecution to clarify the discrepancy between the medical evidence and the oral evidence and if the same has not been clarified, the prosecution evidence about the incident creates a doubt in the mind of the Court. 12. Since the evidence of P.Ws.1 and 2, who categorically asserted that they were in the house at 8.00 and 8.30 a.m. and after the deceased had his meals, went out of the house, within short time thereafter the deceased was hacked and died. But the said version has not been corroborated with the medical evidence as the stomach and intestine of the deceased were found to be empty during the post-mortem examination. Apart from the same, the doctor deposed that the death was 24 hours prior to his examination, which was done within 9 hours of the incident. Therefore, the prosecution suppressed the genesis of the incident, which might have happened in the mid night after he had last meals on the previous night only after witnessing the dead body in the morning hours, the case has been foisted against all the accused due to the incident that has taken place three years prior to the incident. Therefore, we are not constrained to convict the accused on the uncorroborated evidence of P.Ws.1 to 3. 13. In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants (A1 to A3 ) for the offence punishable under Section 302 read with 34 IPC in S.C.No. 152 of 2006, dated 10.11.2006 by the VII Additional District & Sessions Judge, Ongole, are set aside and they are acquitted of the said offence. Consequently, the appellants-Accused 1 to 3 are set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by the appellants/accused shall be refunded to them. _________________ A.GOPAL REDDY, J. _______________ RAJA ELANGO, J. 28-09-2010 Rns [1] 2003(1) ALT Crl 337(SC) [2] 2002(2) ALT (Crl.)3(DB)(AP)