THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.389 OF 2002 DATED 23rd NOVEMBER, 2010. BETWEEN : P.Venkanna & others .. Appellants-A.1 to A.3 and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.389 OF 2002 JUDGMENT: This Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the appellants-A.1 to A.3 challenging the sentence and conviction imposed in Sessions Case No.475 of 2000 dated 21.03.2002 by the II Additional Sessions Judge, Nalgonda, wherein the learned Sessions Judge acquitted the appellants for the offence punishable under Section 302 read with 34 of Indian Penal Code (for short ‘IPC’). However, he convicted the appellants under Section 235 (2) Cr.P.C. for the offence punishable under Section 304 Part II read with 34 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.2000/- each, in default, to suffer simple imprisonment for four months each. Allegations against the accused, in brief, are that: A.1 suspecting that the deceased had illegal intimacy with his wife, bore grudge against him and hatched a plan along with A.2 and A.3 to do away the life of the deceased. In pursuance of the same, on 27.03.2000 at about 10 p.m. A.1 to A.3 went to the house of one Narsamma where deceased was present and took the deceased to the house of A.1 and beat him with hands. A.1 to A.3 also beat L.W.2- Naresh, son of the deceased, when he interfered. In the mean while, L.W.3-Bhagyamma and other locality people reached the spot, witnessed the incident and they sent the deceased to hospital for treatment in an auto rickshaw. But, in the meanwhile at Kundala Bazar, the deceased fell down due to injuries. From there, again L.W.2 and others shifted the injured to Government Hospital, Miryalaguda, for treatment. From there the deceased was shifted to the private clinic of Dr.J.Raju. When the L.W.2 was trying to shift the deceased to Hyderabad for better treatment, the deceased died. Basing on the complaint of the wife of the deceased, Police registered a case in crime No.67 of 2000 and after completion of entire investigation, they filed charge sheet against the accused for the offence punishable under Section 302 IPC and the same was taken cognizance by the learned Judicial Magistrate of First Class, Miryalaguda, in P.R.C.No.42 of 2000. On committal, the learned Sessions Judge framed a charge under Section 302 read with 34 IPC against the accused, who denied the charge, pleaded not guilty and claimed for trial. In order to prove its case, Prosecution got examined PWs 1 to 10 and marked Exs.P.1 to P.11. After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C., in which they denied the incriminating evidence put to them available in the evidence of prosecution witnesses. Though the accused did not adduce any oral evidence, they got marked Exs.D.1 and D.2. After carefully going through the oral and documentary adduced by both the parties, the learned Sessions Judge rendered the impugned judgment as stated above. This Court perused the entire material on record and also heard the arguments of both sides. P.W.1-wife of the deceased deposed before the Court regarding the threat by the appellants while her husband was away from the house and also that she set the law in motion on the basis of the information given by her son. She also deposed regarding her witnessing the injured and regarding admission of the deceased in Sathya Sai Hospital. P.W.2, son of P.W.1 and deceased, claims to be an eye witness to the incident. He deposed that on the basis of the information given by P.W.1, he went to the house of A.1 and he witnessed A.1 to A.3 causing injuries to the deceased with hands and legs. He also stated that when he intervened and questioned, A.1 and A.2 also kicked him in his stomach. Further, he deposed that he also accompanied the injured deceased along with P.W.1 to the hospital. P.W.3 is the neighbour of A.1 to A.3 and deposed that A.1 to A.3 caused injuries on the deceased. He further deposed that when he reached the place, P.W.2 was not in the scene of occurrence. P.W.4 deposed that he know the deceased as well as the accused. He also stated that he witnessed A.1 and A.3 taking the deceased forcibly nearby the house of Laxmi. When he intervened, the accused also pushed him. P.W.5 is the mediator who signed in the scene observation panchanama. P.W.6 witnessed the inquest and he opined that the deceased died due to the injuries caused on the body. P.W.7, Civil Assistant Surgeon and a private medical practitioner, deposed that on 28.03.2000 between 8 and 9 hours, the deceased was brought to his private clinic by his relatives and he was not in a position either to speak or walk and he has also examined him for the internal problem inside the abdomen of the deceased and advised the relatives to take the deceased to Osmania General Hospital. P.W.8 is the doctor who conducted post-mortem over the dead body of the deceased. He found the following antimortem injuries: 1) Abrasion on the (L) shoulder 2) Abrasion on the (L) upper arm 3) Abrasion on lateral canthus of (L) eye (Kanatha) He opined the cause of death is due to cordio respiratory arrest due to blunt injury on the abdomen. P.W.9 is the SI of Police, who received complaint under Ex.P.1 on 28.03.2000 from P.W.1 and registered a case in Crime No.67/2000 for an offence punishable under Sections 342, 324 read with 34 IPC against the appellants herein. Ex.P.10 is the FIR. He also recorded the statement of P.W.1 on the same day. According to him, on 29.03.2000 he received information that the injured died in the hospital. He also recorded the statement of P.W.1 and sent Ex.P.11 memo for alteration of section of law to one under Section 302 IPC. P.W.10 is the Circle Inspector of Police, who received the case file from P.W.9 for further investigation. He examined the other witnesses, conducted investigation and also obtained post-mortem certificate. He also deposed that he did not find any visible injuries on the dead body of the deceased. After completion of investigation, he filed the charge sheet. Admittedly, P.W.1-wife of the deceased is not an eye witness to the occurrence. She lodged complaint on the basis of the information given by P.W.2. In the said complaint, she has stated that the deceased was taken from her house whereas she deposed before the Court that the deceased was taken from the house of P.W.4. To such incident also, P.W.1 is not an eye witness. As rightly pointed out even though the deceased was admitted in the hospital on 27.03.2000 by 9.00 p.m., the complaint was given on 28.03.2000 and further there is no reason given by the Prosecution or by P.W.1 for delay in lodging the complaint. As far as the evidence of P.W.2 is concerned, who claims to be the eye witness to the occurrence, he deposed that he sustained injury. But, he has not chosen to prefer any complaint, which is against the natural human tendency, and he has also not informed the incident to the neighbours. He just simply informed the incident to his mother. There is no explanation by P.W.2 as to why he has not lodged any complaint. Further according to the evidence of PWs 1 and 2, they found the injured at a place, which is not the place where occurrence took place as alleged by P.W.2. The evidence of P.W.2 is highly improbable and also it does not inspire confidence of this Court. The further evidence relied on by the learned Sessions Judge is the evidence of P.W.3, who also claims to be an eye witness to the incident. Contradicting the prosecution case, he deposed that he has not seen P.W.2 at the place of occurrence. P.W.3 has also not informed regarding the incident either to Police or to the relatives of the deceased. P.W.3 seems to be a planted witness by the Prosecution. Further, the medical evidence is also totally contradictory. It is the evidence of the Doctor that the injury sustained in the abdomen of the deceased was caused by a blunt weapon, which resulted in cardiac respiratory arrest. But, it is the case of the prosecution that A.1 to A.3 caused injuries to the deceased with hands. Further, P.W.4 informed that the deceased was taken by A.1 to A.3 from her house. But, she has not identified A.2 and A.3 in the Court. Apart from the above, the Prosecution has not come forward with any specific motive for commission of offence. In view of the same, the present conviction and sentence imposed by the learned Sessions Judge for an offence punishable under Section 304 Part II is liable to be set aside and the same is accordingly set aside. Therefore, the Criminal Appeal is allowed. The conviction and sentence passed by the learned II Additional Sessions Judge, Nalgonda, in S.C.No.475 of 2000 is hereby set aside and the appellants-accused are acquitted of the offence levelled against them. ________________________ JUSTICE RAJA ELANGO Dated : 23.11.2010 sur