HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.456 OF 2007 Dated:23-08-2010 BETWEEN: Dundi Appaiah & Others …Appellants AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.456 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) A.1 to A.6 in S.C.No.362 of 2006 on the file of VI Additional Sessions Judge (Fast Track Court-III), Warangal at Mahabubabad, filed the present appeal challenging their convictions for the offences punishable under Sections 148, 302 r/w 149 I.P.C. and sentence of rigorous imprisonment for two years each and to pay a fine of Rs.500/- each, in default, to undergo simple imprisonment for six months each for the offence under Section 148 I.P.C. and to undergo imprisonment for life and to pay a fine of Rs.10,000/- each, in default, to undergo simple imprisonment for one year each for the offence punishable under Section 302 read with 149 I.P.C., recorded in the judgment dated 15.3.2007. 2. The brief facts that are necessary for disposal of the appeal may be stated as follows: P.W.1 and P.W.7 are sons; P.W.2 is the brother; and P.W.8 is the wife of one Dundi Veeraswamy (hereinafter referred to as ‘the deceased’). P.W.9 is the wife of P.W.2 and sister-in-law of the deceased. The deceased, the accused and the material prosecution witnesses were living in Nidhanapuram Village. The deceased was the leader of their community. A.1 to A.5 are the agnates of the deceased and they were not in good terms with the family of the deceased. The accused were always differing with the judgments given by the deceased in caste disputes and in their fishermen society affairs. The deceased, in the capacity of caste elder did not support the attitude of A.1 giving the divorce to his wife and illicit relations of A.1 with one Guniganti Susheela. About 1 ½ years back, A.1 quarreled with P.W.5 and thereafter P.W.5 was moving with the deceased. Thus the accused bore grudge against the deceased. On 12.10.2004 at about 7.00 p.m. A.1 and A.6 picked up a quarrel with P.W.5 who furnished a separate list of persons entitled for the drought rice scheme before Revenue authority and were about to attack P.W.1. In the meanwhile, the deceased came there and admonished A.1, A.6 and others not to quarrel in the night and if there were any disputes, they could be settled on the next day upon which, A.1 and A.6 threatened to kill the deceased and P.W.5 for their disputed role in the affairs of the village people. P.W.2, P.W.7 and others having learnt about the quarrel, went there and took away the deceased to his house. On 13.10.2004 at about 7.00 p.m., the day of Bathukama Festival, while the deceased was sitting under the pandal which was erected in front of his house, A.1 to A.8 and one Dundi China Veeraswamy came there, gagged the mouth of the deceased with clothes and took him along with them. Upon seeing the same, P.W.1 tried to stop them. A.1 and A.2 who are armed with axes chased P.W.1 and P.W.1 ran to the house of P.W.2 and informed the same to him. Then P.Ws.1 and 2 ran towards the place where the deceased was being taken. At the scene of occurrence they observed A.1 and A.2 axing the deceased near the public drinking water tap situated near the house of A.2. A.3 to A.6 and Dundi China Veeraswamy were guarding the scene of occurrence with sticks in their hands. After axing the deceased, A.1 to A.6 and Dundi Veeraswamy ran away from the scene of occurrence. P.Ws.1 and 2 tried to catch the accused but could not do so. On hearing the cries, P.Ws.8 and 9 came to the scene of occurrence and found the deceased in a pool of blood. P.W.2 prepared a written report through P.W.7. P.W.2 along with P.W.1 went to the police station and gave the report-Ex.P.1 to the police. Basing on Ex.P.1, P.W.17-Sub- Inspector of Police registered a case in Crime No.96 of 2004 for the offences under Sections 147, 148, 302 r/w 149 IPC and issued F.I.R.- Ex.P.7. On 14.10.2004, P.W.18-Circle Inspector of Police, who took up the investigation, visited the scene of occurrence, prepared the scene of observation report, drew the rough sketch and seized the bloodstained earth (M.O.1), controlled earth (M.O.2) and M.Os.3 to 9 in the presence of P.Ws.11 and 15. P.W.18 got photographed the scene of occurrence through P.W.14 and recorded statements of P.Ws.2 to 10. On the same day, P.W.18 held inquest over the dead body of the deceased in the presence of P.W.11 and P.W.15. Ex.P.8 is the inquest report. On 14.10.2004 at about 2.00 p.m., P.W.16-Civil Surgeon conducted autopsy over the dead body of the deceased and opined that the cause of death was due to cardio respiratory failure due to multiple injuries with haemorrhage and shock. Ex.P.6 is the post-mortem report. On 4.11.2004 P.W.18 arrested A.2 to A.6 and at the instance of A.2, P.W.18 recovered an axe (M.O.10) in the presence of P.Ws.12 and 13. Thereafter the material objects were sent to Regional Forensic Science Laboratory. Ex.P.12 is the R.F.S.L. report. After completion of investigation and collecting the required documents, one C.Raji Reddy, Circle Inspector of Police, who took up the further investigation, filed the charge sheet and his signature was identified by P.W.18. 3. The charges levelled against the appellants-accused are as under: “Firstly: That you/A.1 to A.6 on or about 13th day of October, 2004 at about 19.00 hours at Nidhanapuram Village of Narsimhulapet Mandal were a member of an unlawful assembly and in prosecution of common object of the said assembly viz., to murder Dundi Veeraswamy (deceased) due to family disputes; and that you/A.1 to A.6 thereby committed an offence punishable U/s.147 of IPC and within the cognizance of Court of Sessions. Secondly: That you/A.1 to A.6 on the date, time and place as mentioned in the first charge supra, were a member of an unlawful assembly and did in prosecution of common object of that assembly viz., to murder Dundi Veeraswamy (deceased), committed the offence or rioting and at that time armed with deadly weapons like axes to commit the murder of Dundi Veeraswamy (Deceased) and that you thereby committed an offence punishable U/s. 148 of the Indian Penal Code and within the cognizance of the Court of Sessions. Lastly: That you/A.1 to A.6 on the date, time and place as mentioned in the first charge supra, were a member of an unlawful assembly in prosecution of common object of which namely to murder Dundi Veeraswamy (Deceased) and you/A.1 to A.6 axed him to death, which offence you/A.1 to A.6 knew to be likely to be committed in prosecution of the common object of the said assembly and you/A.1 to A.6 are thereby U/s.149 of IPC guilty of causing the said offence of murder punishable U/s.302 of the Indian Penal Code and within the cognizance of Court of Sessions.” 4. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 18 and got marked Exs.P.1 to P.12 besides case properties M.Os.1 to 10. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence. Ex.D.1, whch is relevant portion of statement of P.W.7 under Section 161 Cr.P.C. was marked on behalf of defence. 7. The Trial Court upon accepting the evidence of P.Ws.1 and 2, who are said to be eyewitnesses present at the time of incident found the accused guilty and accordingly convicted and sentenced them. Challenging the same, the present appeal is filed. 8. The point that arises for determination is whether the prosecution proved its case beyond all reasonable doubt for the offences with which the accused were charged? 9. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellants-accused contended that except the interested testimony of P.Ws.1 and 2, there is no other evidence to show that the accused are the assailants of the deceased, that the other independent witnesses who were shown to be present at the time of incident did not support the case of the prosecution; that it is highly improbable to believe that all the accused took the deceased from his house to the scene of occurrence and allegedly beat him; that in the First Information Report, names of 10 persons, including the names of the accused, were shown as the persons who allegedly attacked the deceased, that it is stated in the F.I.R. that all the accused along with another person, who died, attacked the deceased with axes, that the occurrence took place at about 7.00 p.m. during night time of Amavasya day, and therefore, there was no scope or possibility for the witnesses to identify the assailants of the deceased, that earlier information given by P.W.3, which can be the basis for the First Information Report, with a view to press into service Ex.P.1 after due deliberations, has been suppressed, that the medical evidence is inconsistent with the ocular testimony; that the First Information Report was brought into existence with distorted version and that is the reason why, it reached the Court with abnormal delay, and there were circumstances in the prosecution evidence which would suggest that totally a false case is foisted against the accused and therefore, he prays to set aside the convictions and sentences recorded by the trial Court. 10. On the other hand, the learned Additional Public Prosecutor vehemently contended that the presence of P.W.1 at the time of incident is quite natural and probable and all the accused took the deceased from his house to the scene of occurrence and attacked him with axes, that the F.I.R. need not contain minute details of the incident and that the testimony of witnesses in the Court is the substantive evidence, and there is no other reason for P.Ws.1 and 2 to foist a false case against the accused, that simply because the other witnesses turned hostile, it does not mean the evidence of P.Ws.1 and 2 has to be disbelieved; that if the evidence of P.Ws.1 and 2 is found to be acceptable and trustworthy, there is no bar for convicting the accused basing on the said evidence; that there is no inconsistency between the ocular and medical evidence inasmuch as the doctor has stated that the injuries on the body of the deceased could be possible by hacking with a weapon like axe; that in view of the fact that all the accused are residents of same village of P.Ws.1 and 2 and as the villagers would naturally be accustomed to the darkness, they could be in a position to identify the known assailants and therefore, there is nothing unusual for P.Ws.1 and 2 to identify the assailants of the deceased during night time and that the trial Court after elaborate consideration of evidence on record, rightly found them guilty and that there are no grounds to interfere with the same. 11. P.W.18 is the Inspector of Police, who after coming to know about the registration of case by P.W.17, went to the scene of occurrence and held inquest on the dead body of the deceased. The inquest mediators opined that the deceased died as a result of multiple injuries. 12. P.W.16 is the doctor who conducted autopsy on the dead body of the deceased and found the following injuries on the dead body of the deceased: “1. Laceration 3 x 1 inches on left cheek caused by sharp weapon 2. Laceration 5 x 2 inches on occipital region. 3. Laceration 1 x ½ inche on right cheek. 4. Laceration 1 ½ x ½ inch on left knee joint. 5. Laceration 1 ½ x ½ inch on the lower 1/3rd of the left leg. 6. Laceration 1 x ½ inch on the right palm.” He opined that the deceased would appear to have died of cardio respiratory failure due to multiple injuries with haemorrhage and shock approximately 16 to 20 hours prior to his post-mortem examination. He issued Ex.P.6 port-mortem report. He admitted that by a sharp edged weapon like axe, an incised wound can be caused. But the witness added that by an axe, lacerated injuries can also be caused. When a specific question viz. as per Modi’s Medical Jurisprudence, that when the stroke of the axe falls on bony parts, lacerations would be caused; the answer given by the doctor is that not only on the bony parts but also on the other parts/areas, lacerations would be caused when the stroke of the axe falls on it. Lacerated wound is a lear or split produced by blows from blunt objects. The edges of such wounds are torn, jagged, irregular and contused. Occasionally, wounds produced by a blunt weapon may look like incised wounds when inflicted on tense structures covering the bones such as scalp, eye brow, iliac crest, skin etc. Of-course, when there is no muscle in between the skin and the bone, a blunt weapon would not cause cut injury. Therefore, the doctor has to note down the nature of injuries namely, whether the edges are smooth or irregular or contused. In a case of beating with a blunt object, ordinarily the edges would be irregular or jagged. Whereas, in a case where a sharp edged weapon is used, the edges of the injury would be clean cut or smooth. Therefore, the nature of injuries has not been properly described by the doctor whether they are clean cuts or margins are smooth or irregular. But still he says that when an axe is used, lacerations are caused not only on the bony parts of the body but also other areas, which is quite contradictory to the Modi’s Medical Jurisprudence. There must be a basis for the doctor to speak about the nature of injuries caused. A duty lies upon the post-mortem doctor to note down the correct nature of the injuries. As per Ex.P.6 post-mortem report, there is no such descriptive particulars with regard to the nature of injuries sustained by the deceased. The nature of injuries sustained are; two injuries on the cheeks; one injury on the right palm; other injury on the lower 1/3d of the left leg; and another injury on occipital bone. The evidence of P.Ws.1 and 2 would clearly go to show that it is A.1 and A.2 who hacked the deceased with axes and the other accused were guarding the scene of offence. It is not the case of the prosecution that A.3 to A.6 beat the deceased with sticks though they were armed with sticks. Simply because the doctor has stated that injuries can be caused by a sharp edged weapon, that does not mean that it has to be accepted as a gospel truth in the absence of any reasons given by the doctor. No such reason is given for causing lacerations with a weapon like axe. 13. The motive for the offence is that the deceased used to settle the disputes among the villagers by holding panchayats and that A.1 and A.4 entertained grouse because the deceased was only acting as a caste elder for the last several years and that P.W.1 and the deceased made one Dundi Ramaswamy to contest as Vice-President against A.4 and A.4 lost in the elections and therefore, accused entertained a grouse against the deceased. It is the further case of prosecution that in one panchayat, elders imposed a penalty of Rs.8,000/- on A.1 and the deceased was one of the elders in the said panchayat. When admittedly, the deceased was acting as one of the village elders for the last several years, that could not be the immediate motive for accused to entertain a grouse or to eliminate the deceased. Though several caste elders are there, the names of other caste elders are not spoken to by P.Ws.1 and 2. If really, a fine was imposed against A.1, certainly he would have entertained grouse against all the caste elders. It is not such a case. So, the motive as spoken to by P.Ws.1 and 2 may not be the motive for the incident. Simply because, motive has not been established, it does not mean the accused are entitled for acquittal. The absence of motive or non-proof of motive may not be a ground to discredit the testimony of eyewitnesses provided the evidence of eyewitnesses is true and trustworthy. 14. The case rests upon the evidence of P.Ws.1 and 2. The other witnesses P.Ws.3,4,5,6, 10 to 13 and 15 did not support the case of the prosecution. They have given a complete go by to their earlier version recorded by the police during the course of investigation under Section 161 (3) Cr.P.C. Except marking their statements recorded by the police, nothing has been elicited in their evidence to connect the accused with the crime. Some of the witnesses who were declared hostile by the prosecution are said to be the eyewitnesses and immediate neighbourers residing near the scene of occurrence. Therefore, the entire case rests upon the evidence of P.Ws.1 and 2, who are none other than the son and brother of the deceased respectively. They jointly gave Ex.P.1 report to the police duly signing. 15. According to P.W.1, he was present in the house on 13.10.2004 at 7.00 p.m. His father (deceased) was sitting under the pandal which was erected in front of their house at Nidanapuram Village of Narsimhulapet Mandal, Warangal District. After taking bath, he was coming out from the house. At that time, all the accused and one Dundi China Veeraswamy came to the pandal in front of his house and they gagged the mouth of deceased with clothes and took him along with them. When he interfered and tried to stop, both A.1 and A.2 chased him with axes. He ran towards the house of the younger brother of the deceased (P.W.2) and informed the same to P.W.2. Then both of them followed in the direction in which the deceased was taken by the accused. When they reached the scene of occurrence i.e. Muttarasiwada near public tap in the village, they saw A.1 and A.2 axing the deceased while A.3 to A.6 and Dundi China Veeraswamy were guarding the scene of occurrence with sticks in their hands. Thereafter, they ran away from the scene of occurrence. Though P.W.2 tried to catch hold of the accused, it is of no avail. Thereafter they scribed a report and gave it to the police. 16. It is not in dispute that when P.W.1 was proceeding to the house of P.W.2, the houses of Dorepally Bixam, Kattagudi Nagaiah, Poojari Somaiah, Dundi Somaiah, Chirra Mallaiah, Puligujja Sugunamma and Dundi Pentaiah are situated on the way. Similarly, the house of Poojari China Bixam is located very near to the public tap. Admittedly, the distance between the house of P.W.1 and the scene of occurrence is more than 200 yards. After the incident, P.Ws.1 and 2 chased all the accused for some distance and the same is improbable as they were not armed with weapons. Several residential houses are in existence on either side of the road on the way to the scene of occurrence and thereby the villagers could have an occasion to see the accused and the deceased when the deceased was being taken forcibly with gagging of clothe in his mouth. If really, the accused are the assailants, there is no reason for them to take the deceased to outskirts of village nearly for 200 to 300 yards. If really, the accused had any grouse against the deceased, they would have attacked the deceased in the house itself. They would not have been invited their presence along with the deceased to the villagers. 17. The incident is alleged to have taken place at about 7.00 p.m. on 13.10.2004, which is an Amavasya day. That means, there would be a total darkness by 7.00 p.m. In such a case, it may not be possible for the witnesses to identify even the known assailants, when they were seeing the incident at a distance of 20 to 30 feet. It is not the case of P.Ws.1 and 2 that they have identified the assailants of the deceased with illumination of any light or streetlight or that any electric bulb was burning nearby the incident. If really these two persons i.e. P.Ws.1 and 2 followed the deceased to the scene of occurrence, they would not have kept quiet. They would have raised hue and cry drawing the attention of several villagers who are residing in the houses on either side of the road. Because the incident took place in the evening time, naturally all the villagers would be present in their respective houses. In view of the fact that some Batukamma Festival was being performed in the village on the fateful day, some villagers including the women folk might have gone to the place of festival, but some villagers would be present in the houses. When the deceased being taken forcibly by the accused, they did not raise any cries. Therefore, the conduct and behaviour of P.Ws.1 and 2 give rise to a suspicion whether they really witnessed the incident. No-doubt, when presence of a relative of the victim is found to be acceptable and convincing, there is no legal bar for basing a conviction basing on their testimony. When P.Ws.1 and 2 are put in the category of wholly reliable, then there would be no difficult in accepting their testimony. 18. P.Ws.1 and 2 gave a joint report Ex.P.1. According to this report, 7 named persons kidnapped the deceased and they were axing him and after seeing P.Ws.1 and 2, all the persons ran away. At that time, they saw (1) Poojari Janardhan; (2) Poojari Venkanna; and (3) Chirra Yakanna also, running away by holding axes. So, almost 10 persons were named as accused in the F.I.R. The police did not file any charge sheet against the said three persons, who were allegedly carrying the axes while P.Ws.1 and 2 were present at the time of incident. In the report, both P.Ws.1 and 2 stated that all the persons were axing the deceased with weapons. Whereas, when they came into the witness box they stated that it is A.1 and A.2 who axed the deceased with axes and A.3 to A.6 were guarding the scene of occurrence, which is quite contradictory to the contents in F.I.R. 19. No-doubt, the F.I.R. is not encyclopedia to contain all the minute details as contended by the learned Public Prosecutor, but at the same time, if really, these two witnesses are eyewitnesses to the incident, they would have given full description of the nature of injuries caused by A.1 and A.2. It is not that difficult to name only A.1 and A.2 as the persons who caused injuries to the deceased with axes, in the F.I.R. Therefore, it creates any amount of doubt with regard to the presence of P.Ws. 1 and 2 at the scene of occurrence at the relevant point of time of the incident. 20. The case was registered at 9.00 p.m. on 13.10.2004. Whereas, the F.I.R. reached to the Court at about 2.25 p.m. on 14.10.2004. The distance between the Court and the police station is about 20 k.ms. which can be covered within half-an-hour or one hour by bus or a motor vehicle. P.W.17 has to give an explanation for not sending the express F.I.R. to the Court within a reasonable time. On the other hand, the evidence of P.W.17 would go to show that immediately after registration