HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE NO.549 OF 2006 & CRIMINAL APPEAL NO.650 of 2007 COMMON JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) Crl.R.C.No.549 of 2006 is filed by the defacto complainant- P.W.1, while Crl.A.No.650 of 2007 is filed by the State, against the order of acquittal of the accused for the offences punishable under Sections 302 and 307 IPC, passed by the learned I Addl. Sessions Judge, Chittoor, in S.C.No.184 of 2003, by judgment, dated 29.08.2005. 2. Since both the Criminal Revision Case and the Criminal Appeal arise out of same judgment, they are being disposed of together by this common judgment. 3. Briefly, the case of the Prosecution is that the accused married the defacto complainant six years prior to the date of the offence i.e., 11.09.2002 and during their wedlock they begot a female child by name Indu (who is hereinafter referred to as ‘the deceased’). Prior to the offence, the accused used to beat the defacto complainant suspecting her fidelity and that the deceased was not born to P.W.1 through him and bore grudge against both P.W.1 and the deceased. i) While so, on 11.09.2002 at about 4.30 a.m. when the defacto complainant woke up and came outside the house for the purpose of sprinkling cow-dung water in front of the house and after that she came inside the house, the accused armed with an axe came behind her and caused injuries on her face uttering that he would not leave them and in pursuance of his intention to kill her as well as the deceased, he gave blows with the axe on the chest of the defacto complainant and caused injuries to her and the deceased. Then, the defacto complainant made hue and cry and on hearing the cries the neighbours came there. On seeing them the accused fled away from the scene of offence. On the advice of elders and with their assistance, the defacto complainant took the deceased to C.M.C. Hospital at Vellore for treatment where she succumbed to injuries caused by the accused. ii) On the same day i.e., 11.09.2002 at 9.00 p.m. the defacto complainant lodged Ex.P.1 complaint with Gudipala Police Station. On the strength of Ex.P.1 complaint, P.W.10, the S.I. of Police, Gudipala P.S. registered crime No.60 of 2002 against the accused and later sent the defacto complainant to the Government Hospital, Chittoor, for treatment. After completion of investigation and receiving the necessary reports, P.W.11, the Inspector of Police, Chittoor Rural P.S., laid charge sheet against the accused for the offences punishable under Sections 302 and 307 IPC. The plea of the accused was of total denial. 4. In order to prove the guilt of the accused, the prosecution examined P.Ws. 1 to 11 and got marked Exs.P.1 to P.11 and also M.Os.1 to 6. On behalf of defence, no documents were marked but D.W.1 was examined. 5. P.W.1 is the defacto complainant. P.Ws.2 to 4 are the neighbours and also heard the cries of P.W.1. P.W.5 is father of P.W.1. P.W.8 is the doctor who treated the accused as well as P.W.1. P.W.9, the Civil Assistant Surgeon, Medical College Hospital, Vellore, conducted post- mortem examination on the dead body of the deceased and issued Ex.P.6 post-mortem certificate. P.W.10 , the S.I. of Police, Gudipala P.S., registered Crime No.60 of 2002 and issued Ex.P.7 FIR to all the concerned. P.W.11, the Inspector of Police, Chittoor Rural P.S., is the Investigating Officer. 6. After hearing the arguments on both sides and on appreciation of both oral and documentary evidence, the learned Sessions Judge disbelieved the case of the prosecution and acquitted the accused of the charges levelled against him, by judgment, dated 29.08.2005. 7. Learned Public Prosecutor for the State contended that the evidence of P.W.1 is cogent in nature and believing her evidence, the learned Sessions Judge ought to have convicted the accused, even though there is a delay of 16 hours in lodging the complaint. Since the deceased was the daughter of P.W.1 and died in the hospital, P.W.1 might not be in a position to lodge the complaint immediately. Therefore, the delay does not cause any prejudice to the case of the prosecution and the learned Sessions Judge ought to have considered the delay as not fatal to the case of the prosecution. 8. Learned counsel appearing for the defacto complainant contended that the trial Court erred in discarding the evidence of P.W.1 on the ground that she is interested witness, though she is an eye witness to the incident and her evidence is reliable and cogent. He further contended that the trial Court unnecessarily made the evidence of P.W.8 the basis for giving a benefit of doubt to the accused with regard to his presence at the scene of offence totally overlooking the direct evidence of P.W.1. 9. Per contra, learned counsel appearing for the accused submitted that the evidence of P.W.1 before the Court do not inspire confidence of the Court for the reasons that there is a delay of 16 hours in lodging the complaint, that P.W.1 has not even informed the doctor in the hospital that the injuries suffered by the deceased were inflicted by the accused, and that P.W.1 informed the doctor that due to fall of an iron rod, the deceased sustained injury on her head. He further submitted that except P.W.1, no one informed the Court about the presence of the accused at the scene of offence. Hence, the trial Court is right in acquitting the accused and there are no grounds to interfere with the order of acquittal of the accused. 10. We have perused the entire evidence adduced by the prosecution. The prosecution mainly relied on the evidence of P.Ws.1 to 4. P.W.1 stated to the Medical Officer in C.M.C. Hospital that the deceased received injuries, as an iron rod fell on her head, while in Ex.P.1-report she stated that her husband hacked the deceased twice on her cheek and caused bleeding injuries. P.Ws. 2 and 4 deposed that by the time they came to the scene of offence, they did not find the accused. P.W.3 deposed before the Court that by the time she went to the place of incident, the deceased was in the hands of her mother P.W.1 and the accused was holding an axe in his hand and having left the axe there, he ran away from the place of occurrence and that she stated to the police that the accused killed her deceased-daughter and he was responsible for the death of the deceased. But contrary to it, P.W.2 deposed that on hearing the cries of P.W.1, himself and his wife P.W.3 came out and saw the deceased with bleeding injuries and he did not see the accused at the scene of offence and P.W.11, the Investigating Officer, categorically stated in cross-examination that in her 161 Cr.P.C. statement, P.W.3 did not state that the accused was holding an axe in his hand and on seeing them he left that place leaving the axe there. There is no evidence available on record to prove the presence of the accused at the time of incident, in support of the evidence of P.W.1 the defacto complainant and wife of the accused. 11. Further, there is no explanation by P.W.1 for the delay in lodging Ex.P.1-report with the police. The prosecution has also not taken any effort to inform the trial Court why an inordinate delay occurred in lodging the report. 12. Further, it is the case of the prosecution that the accused voluntarily confessed that he has murdered his daughter and caused injuries to the defacto complainant with an axe and after committing the offence he himself caused injuries on his abdomen with the said weapon with an intention to take away his life and thereafter he went to his sister’s house and on her advice, he admitted in the Government Hospital, Chittoor. Whereas, P.W.8, the doctor, who treated the accused, deposed in the Court that on 11.09.2002 at 11.30 p.m. he examined the accused and he did not find any injuries on him as per his medical record and the accused left the hospital on 12.09.2002 at 9.00 a.m. without any intimation and the accused was complained of pain in chest and abdomen. 13. It is the case of the defence that the accused was not in the place of occurrence as he went to his sister’s house and to that extent, they examined D.W.1 also. Even though D.W.1’s evidence does not substantiate the said fact, it is the duty of the prosecution to prove the presence of the accused at the place of occurrence. In the absence of any positive evidence to prove the presence of the accused at the place of occurrence and since there are material omissions and contradictions in the evidence of prosecution witnesses, we are of the view that no conviction be given to the accused for the offences punishable under Sections 302 and 307 IPC. 14. Further, the learned Sessions Judge elaborately considered all the aspects and rightly rejected the evidence of P.W.1 and accordingly acquitted the accused. It is also well settled position of law that when two views are possible on the basis of evidence adduced by the prosecution, one, which is in favour of the accused or more probable, can be taken into consideration and if the same is appreciated and the accused is acquitted of the offence, there is no need to interfere with the judgment of the trial Court. 15. In view the foregoing discussion, we are of the opinion that there is no need to interfere with the judgment of the trial Court and the said judgment does not suffer with any infirmity or perversity and there is no apparent error on the face of the record also. 16. Hence, the Criminal Revision Case and the Criminal Appeal fail and are accordingly dismissed. ____________________ A. GOPAL REDDY. J __________________ RAJA ELANGO, J 27th October, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE NO.549 OF 2006 & CRIMINAL APPEAL NO.650 of 2007 (Dismissed) 27th October, 2010 cbs HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE NO.549 OF 2006 & CRIMINAL APPEAL NO.650 of 2007 Dated:27-10-2010 Crl.R.C.No.549 of 2006: S. Pankaja … Petitioner/ Defacto complainant AND The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad and another … Respondents Crl.A.No.650 of 2007: The State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND S. Bayyareddigari Raghava Reddy …Respondent/ Accused THIS COURT MADE THE FOLLOWING: