THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1230 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the I Additional Sessions Judge, Mahabubnagar in S.C.No.148 of 2000 on 30.06.2004. The appellants herein were prosecuted for the offences under Sections 147, 148, 302, 324 read with 149 IPC. The case of the prosecution in brief is that on 24.09.1999 the deceased Boddu Krishnaiah and P.W.3, P.W.5, P.W.6 and Ch.Ramulu went to Christianpalli for attending construction work, in the evening at 6.30 P.M., they left Christianpalli and went to the hotel of P.W.9 to take tea and while they were consuming tea, accused Nos.1 to 3 came there and falling in a manner of intoxication condition and accused No.1 touched the deceased Krishnaiah and tea which was being consumed by him fell on the ground, for which the deceased raised his objection and accused Nos.1 to 3 told him that they will arrange tea again and in that regard a quarrel took place between both groups. Md.Pasha and others intervened and separated them, when the deceased, P.W.3, P.W.5, P.W.6 and Ch.Ramulu are returning to Siddaipalli village, accused Nos.1 to 3 followed them and again picked up a quarrel on the way near transformer, P.W.13 intervened and sent them away. After reached Siddaipally village, accused Nos.1 to 3 went to the shop-cum-hotel of Sri K.Kumar and there again abused P.W.3 and others and at about 9.00 P.M., accused Nos.1 to 3 came along with other accused Nos.4 to 15 armed with sticks, iron rods and attacked the deceased when he was taking food along with his family members and beat him indiscriminately and took him near the house of P.W.11 and thrown the deceased there forcibly on the ground. The deceased was shifted to the Government hospital on the same day night at 10.00 P.M., where the doctors declared him as dead. The learned Sessions Judge has framed the charges under Sections 148, 324, 302 read with 149 IPC against all the accused. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 24 and got marked Exs.P.1 to P.24 and M.Os.1 to 8. No oral and documentary evidence was produced on behalf of the accused. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found accused Nos.5, 8, 12 to A.15 not guilty for the charges under Sections 148, 324 read with 149, 302 read with 149 IPC and accused Nos.1 to 4, 6, 7, 9 to 11 were found guilty for the charges under Sections 148, 304 Part- I read with 149, 324 read with 149 IPC; convicted and sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.100/- each in default simple imprisonment for 10 days for the offence under Section 304 part-I read with 149 IPC, and further convicted and sentenced to undergo rigorous imprisonment for 1 year for the offence under Section 324 read with 149 IPC, and further sentenced to undergo rigorous imprisonment for one year for the offence under Section 148 IPC. Aggrieved by the said conviction and sentence, the present appeal is filed by accused Nos.1 to 4, 6, 7 and 9 to 11. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charges under Section 148, 304 part-I read with 149, 324 read with 149 IPC against accused Nos. 1 to 4, 6, 7 and 9 to 11 beyond reasonable doubt? P O I N T: Learned counsel appearing for the appellants Sri C.Praveen Kumar has contended that the complainant P.W.3 has turned hostile to the prosecution and expressed his ignorance about the contents of Ex.P.1 complaint, on which the investigation has taken place and that the father, brother and mother of the deceased P.W.2, P.W.8 and P.W.7 also not supported the case of the prosecution and all the other witnesses and circumstantial witnesses also not supported the case of the prosecution, as such the prosecution has failed to establish the charges against the present appellants. Learned counsel for appellants has further pleaded that the decision relied upon by the learned Sessions Judge rendered in Pubi Satyanarayana @ Sathaiah v. State of A.P. reported in 1995 Crl.L.J. 1738 is not applicable to the present facts of the case as there is no independent evidence supporting the version of the prosecution to rely upon the evidence of P.Ws.1 and 2, who turned hostile in the cross-examination. Learned counsel for appellants has further pleaded that even though P.Ws.5 and 6, who are said to be the eyewitnesses to some extent supported the version of prosecution, but they only mentioned the names of accused Nos.2, 3 and 4, but their statement before the Court is an improvement than the statement given to the police. Therefore, their evidence cannot be relied upon. Learned counsel for appellants has further pleaded that as the panch witness for the scene of offence and recovery of material objects at the instance of accused Nos. 1 to 3 has turned hostile to the prosecution, the evidence of P.W.24 investigating officer cannot be relied upon in that regard. On behalf of the Public Prosecutor, it is argued that the evidence of P.Ws.1, 2, 5 and 6 has supported the version of the prosecution and the recovery of material objects at the instance of accused Nos.1 to 3 was also established from the evidence of investigating officer P.W.24 and the injuries sustained by P.Ws.1 and 4 was established from the medical evidence of P.W.20 and cause of death of deceased was also established from the evidence of P.W.21, as such the learned Sessions Judge has rightly came to the conclusion that the appellants have committed the said offences as alleged by the prosecution. The investigation was initiated by the police on the complaint given by P.W.3 to P.W.23, who registered the case in Crime No.102 of 1999 and took up investigation, but the complainant P.W.3 has expressed his ignorance about the occurrence of the incident and the cause of death of the deceased. According to him on the date of death of the deceased, police called him to the police station and obtained his signature on Ex.P.1 and released him on the next day and he do not know the contents of Ex.P.1. In Ex.P.1 it was mentioned that a quarrel took place at Amistapur between accused Nos.1 to 3 and the deceased, P.Ws.3,5, 6 and others at the time of taking tea by them and thereafter accused Nos.1 to 3 followed them to Siddaipally village and quarreled with them on the way and beat them. Thereafter, they went to thanda and brought number of persons from their thanda to Siddaipally about 9.00 P.M. and came to the house of deceased Boddu Krishnaiah armed with sticks and beat the deceased indiscriminately. When P.Ws.1 and 4 and one Chinna Venkataiah intervened, they were also beaten by the accused. Thereafter, the deceased was shifted to the hospital and on the way he died and he can identify some persons apart from the above said three persons and they are accused Nos.4, 5, 6, 7, 8, 9 and 10. P.Ws.1 and 2, who were accompanying the deceased and also injured has narrated the incident in their chief-examination, but they turned hostile in their cross-examination, which was done after lapse of time. The other eyewitnesses P.W.4, father of the deceased, P.W.7, mother of the deceased, P.W.8, brother of the deceased have completely turned hostile to the case of the prosecution and they expressed ignorance about the cause of death of the deceased. The other eyewitnesses P.Ws.10 and 11 and circumstantial witnesses P.W.9, P.W.12 and P.W.13 have turned hostile to the prosecution and not supported the version of the prosecution. The other remaining eyewitnesses are P.Ws.5 and 6. P.W.5 has stated that himself, deceased and P.W.3 and others went to coolie work at Christianpally on the date of incident, on their return, they gone to Amistapur and all of them taking tea in the hotel at Amisthapur. Accused Nos.1, 2 and 4 came there and they touched them, as a result of which tea glasses fallen down and the accused have stated that they would pay for the tea and threw some coins on the ground. They took the coins and handed over to accused Nos.1, 2 and 4 and told that they need not pay for their tea and a quarrel took place in that regard. The hotelier pacified them and send them away, they returned back to their village, accused Nos.1, 2 and 4 followed them to their village, on the same day in the evening at 8.00 P.M. on hearing commotion, he went to the shop of one Srinu and found the deceased and P.W.6 present there, he saw accused Nos.1, 2 and 4 quarrelling with the deceased, the village elders separated them and they are Chipuri Ramulu, Hanumanthu and some others. Thereafter, accused Nos.1, 2 and 4 gone back to their thanda and at about 9.00 P.M all the accused came to their village and attacked the deceased, at that time he was in the house and found the injured lying on the road near the house of Boya Narsamma. In the cross-examination, he admitted that he did not state to the police that the accused persons threw coins on the ground telling them to buy tea again and he also admitted that he did not tell the police that hotel owner came and rescued them. He also did not tell the police that accused Nos.1, 2 and 4 followed them to their village. He also did not tell the police that he saw the deceased at the shop of one Srinivas, where he also saw accused Nos.1, 2 and 4 and he do not know who beat the deceased at 9.00 P.M. Therefore, the presence of P.W.5 along with the deceased and P.Ws.1 and 2 at the time of the incident is doubtful as he did not speak about the incident occurred at Amistapur tea stall and also in their village, to the police at the time of his examination under Section 161 Cr.P.C. moreover he was not an eyewitness to the incident that took place at 9.00 P.M. at the house of deceased Boddu Krishnaiah. Therefore, his evidence cannot be relied to establish the incident alleged to have occurred at 9.00 P.M., in which the deceased sustained injuries and died subsequently and P.Ws.1, 2 and another have sustained injuries. The other witness P.W.6 has stated in chief-examination, he and others gone to Amistapur for the purpose of taking tea on their return to their village, accused Nos.1 and 2 came to the hotel in a drunken condition and pushed them, then the tea glasses have fallen down and on their questioning, accused Nos.1, 2 and 4 claimed that they would get their tea and a quarrel took place in between them in that regard. At about 8.00 P.M., he returned back from his fields and on coming to know about the commotion, he went to the spot and found the injured lying with injuries on the ground. The power was cut off at that time and there was no electricity when he reached the spot and they shifted the injured on a bullock cart to the Government Hospital, Mahabubnagar, where he succumbed to injuries. On his enquiry, villagers told that lambada people from thanda of their village came and attacked and beat the deceased. One Boya Pentamma P.W.11 has stated to him that accused Nos.1 and 2 brought other lambadi people to their village and attacked the deceased. Therefore, he was not present at the time of incident that took place at 9.00 P.M., near the house of deceased. As already discussed above, the other eyewitnesses and circumstantial witnesses have turned hostile to the prosecution and the evidence of P.Ws.5 and 6 cannot be relied upon as there are not eyewitnesses to the alleged incident that took place at 9.00 P.M. at the house of the deceased, in which the deceased has sustained grievous injures, subsequently died and P.Ws.1, 2 and others have sustained injuries. Thus, the remaining witnesses are P.Ws.1 and 2, who are the injured and eyewitnesses. P.W.1 stated that all the accused persons came and beaten the deceased Krishnaiah up to his house, when he interfered, accused persons beat him with sticks and iron rods. He sustained injuries on his head, temple, and elbows and on left leg and lost consciousness. He was also beaten on the right shoulder. He cannot give the specific overt acts, in view of the nature of the attack. He has identified the accused persons in the light of electric bulb fixed to the pole near to his house. After he fell down, he does not know who else were beaten. According to him one Kamalaiah, Kistaiah, and one Telaga person Hanmanthu saw the incident. But the said persons were not cited as witnesses for prosecution nor they were examined before the Court. Further more, P.W.1 has specifically stated in his chief-examination itself, that he do not know where the deceased was attacked and killed as he was unconscious due to injuries and he also further stated that he do not know why the deceased was attacked and beaten. He was examined in chief on 12.11.2002 and cross-examination was recorded as “Nil”. Subsequently, he was recalled and cross-examined on 18.09.2003. In the cross-examination he completely turned hostile to the prosecution and stated that he cannot identify the accused persons and he cannot say who beat him and he has stated that there is no power supply at the time of incident. The other witness P.W.2, who is the brother of the deceased and injured in the said incident has stated that he heard commotion near Kirana shop of one Kumar and he rushed there and came to know that the accused persons, elder brother of the deceased and 2 others by name Nagendar P.W.3, Masaiah P.W.5 and Thirumaliah P.W.6 and Ramulu have quarreled and he also came to know that the accused quarreled with the deceased right from Amistapur and continued till they come to their village. He went to the spot and tried to intervene and pacify the accused persons and sent them away and took the deceased back to their house. After some time, all of their family members started taking meals in front of their house and while they were eating all the accused rushed to their house armed with sticks, iron rods and cart pegs and beat the deceased. Accused Nos.1, 2, 3, 4, 6 and 11 specifically attacked and injured the deceased in front of their house on his legs, arms and also his chest. Then P.W.1 and China Venkataiah came and tried to interfere, the accused persons quarreled with them and beat them. When the accused persons lifted the deceased and were taking away, on the outskirts of their village P.W.11 asked them to leave the dead body, then the accused left the dead body and went away. The said witness was also examined on 12.11.2002 in chief and cross-examination recorded as “Nil”, but he was recalled on 21.11.2003 and cross-examined by the defence counsel. In the cross-examination, he completely turned hostile and stated that he was not present at the time of the incident and by the time he reached his house, his brother was found dead. He further stated that he gave evidence earlier at the instance of the police and he did not see the incident as stated by him earlier. As P.Ws.1 and 2 supported the case of the prosecution to some extent in their chief-examination, but turned hostile in their cross-examination done after lapse of time. The learned Sessions Judge has relied upon a decision rendered in “PUBI SATYANARAYANA @ SATHAIAH V. STATE OF A.P.” reported in 1995 Crl.L.J. 1738 and relied upon the chief-examination of P.Ws.1 and 2. In the above said decision the Division Bench of this Court has held that the evidence of hostile witnesses can be relied, when they were cross-examined after lapse of time and when there is independent evidence and medical evidence in support of the case of the prosecution. In the present case, even the relations of the deceased i.e. P.Ws.4, 7 and 8 have turned hostile to the prosecution and other eyewitnesses and circumstantial witnesses also completely turned hostile to the prosecution and the evidence of eyewitnesses P.Ws.5 and 6 cannot be relied upon as they were stated in their cross-examination that they were not present at the time of incident. Thus, there is no independent evidence to establish the case of the prosecution. Even if the evidence of P.Ws.1 and 2 was taken into consideration, P.W.1 has not specifically stated about the individual overt acts of the accused, but he only stated that all the accused attacked the deceased and also beat him. The other eyewitness P.W.2 stated that he was not present at the time of the incident. Thus, the only evidence available on record is the medical evidence of P.W.20 the Doctor, who has examined the injured P.Ws.1 and 4 and the Doctor P.W.21 who conducted autopsy over the dead body of the deceased. The medical evidence is supporting the version of the prosecution with regard to the injuries sustained by P.Ws.1, 4 and the deceased. The panch witness for the scene of offence, inquest and recovery of material objects at the instance of accused Nos.1 to 3 also turned hostile to the prosecution. The learned Sessions Judge has found accused Nos.1 to 4, 6, 7, 9 to 11 are responsible for the commission of the said offence. When the evidence of P.Ws.1 and 2 was not supported by other eyewitnesses P.Ws.5 and 6, it is not safe to rely upon the hostile evidence of P.Ws.1 and 2 to convict the accused. More over, there is no specific reliable evidence against accused Nos.1 to 4, 6, 7, 9 to 11 to establish the commission of the offence as alleged by the prosecution. Therefore, in view of the above observations, I hold that the prosecution has failed to establish that accused Nos.1 to 4, 6, 7, 9 to 11 have committed the offences under Sections 148, 304 Part-I read with 149, 324 read with 149 IPC beyond reasonable doubt and the accused Nos.1 to 4, 6, 7, 9 to 11 are entitled for benefit of doubt. In the result, the appeal is allowed. The conviction and sentence passed by the learned Sessions Judge, Mahabubnagar in S.C.No.148 of 2000 dated 30.06.2004 is set aside and the accused Nos.1 to 4, 6, 7, 9 to 11 are acquitted for the offences under Sections 148, 304-I read with 149, 324 read with 149 IPC. _______________________ P.DURGA PRASAD, J 29th July, 2011 KSP