THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.226 of 2003 JUDGMENT: This appeal is filed by A.1 to A.5 and A.7 in Sessions Case No.303 of 1999 on the file of the Court of the I Additional Sessions Judge at Nalgonda against the judgment dated 07.02.2003, wherein A.1 to A.5 and A.7 were convicted for the offences under sections 148, 324 and 307 r/w 149 IPC and were sentenced to undergo for one year rigorous imprisonment, one year rigorous imprisonment and three years rigorous imprisonment and to pay fine of Rs.200/- each in default to undergo simple imprisonment for one month for the offences respectively mentioned above for which they were convicted. In all, 26 accused were tried by the learned Additional Sessions Judge for the charges under Sections 147, 148, 307, 324 r/w 149 IPC. To prove the said charges, the prosecution examined 14 witnesses and marked 33 documents. Among the witnesses, PW.1 is the informant and PWs 3 and 4, are injured eye-witnesses. The learned trial Court on a consideration of the entire evidence on record, convicted the appellants and sentenced them to punishment as mentioned above. But acquitted the remaining accused of all the charges levelled against them. I have heard Smt.C.Vasundhara Reddy, learned counsel appearing for the appellants and Smt Aruna, learned counsel representing the Public Prosecutor for the State. The learned counsel for the appellants would submit that the incident took place according to the prosecution at about 6.00 AM and it was reported in the Police Station at 9.00 AM, which is situated at a distance of 30 KMs, but the FIR reached the Magistrate at 3.00 PM on the next day. The delay in FIR reaching the Magistrate leads to any amount of doubt and as to the veracity of the prosecution story and there is every possibility for implicating innocent persons, and admittedly there was rivalry between both the groups. The learned counsel would further submit that the medical evidence is also not consistent with the evidence of the direct witnesses and, therefore, the entire version has to be disbelieved. On the other hand, the learned counsel representing the Public Prosecutor would contend that the trial Court after thoroughly analyzing the evidence, placed reliance on the testimony of PWs 1, 3 and 4 and recorded a conviction, which cannot be assailed in this appeal. In the first instance, it requires to be noticed that there is rivalry between both the groups owing to a land dispute between PW.1 and A.1 and on account of enmity between the parties, their evidence has to be scrutinized with great care and caution. In Ex.P.1 report lodged by PW.1, he mentioned the names of 26 persons and also referred more persons as the accused who attacked him while he was coming from his cattle shed to his house. The allegations in Ex.P.1 report discloses that all the accused and some other persons armed with sticks and axes attacked PW.1 with a view to kill him. Except making an omni bus allegation in Ex.P.1 report, PW.1 did not mention any specific overt acts or even a single overt act committed by any of the accused. It is also mentioned in Ex.P.1 that when PWs 1, 4 and 5 intervened, the assailants also beat them and caused injuries. But no details have been furnished. It is true that each and every detail need not be mentioned in the F.I.R. Omission to mention material facts within the knowledge of the informant assumes significance and such material omissions would be relevant for the purpose of testing the veracity of the prosecution story. PW.9 Doctor, who examined PWs.1, 4 and 5 issued wound certificates. The wound certificates were marked as Exs.P.6 to P.8 respectively. PW.9 noticed the following injuries on the person of PW.1. 1) A compound fracture of right tibia 2” x 2” x 2” 2) A compound fracture of left tibia 3” x 2” x 2”. Both injuries are grievous in nature caused by blunt weapon and age of the injuries is 1 to 3 hours. The patient was referred to OGH, Hyderabad, for better treatment on the same day. On the same day at 9.00 A.M. P.W.9 also examined PW.5 and found the following injuries: 1) A contusion 2” x ½” x ¼” over the right side of the back 2) A contusion 1” x ½” x ¼” over the right forearm. Both injuries are simple in nature caused by blunt weapon and the age of the injuries is 1 to 6 hours prior to his examination. On the same day he also examined PW.4 at 9.30 A.M. and found the following injuries: 1) Contusion over the left thigh 2” x 1” x 1” caused by blunt weapon simple in nature and the age of the injury is 1 to 6 hours. 2) An abrasion 1” x ½” over the right forearm caused by blunt. Both injuries are simple in nature caused by blunt weapon and the age of the injuries is 1 to 6 hours prior to his examination. According to PW.1, A.1 to A.4 and A.7 beat on his both legs with sticks causing fractures. One Chinna Koti Reddy, son of Venkat Ram Reddy axed on his forehead, causing bleeding injury. A.5 and A.14 beat on his forehead with sticks and caused bleeding injuries. Whereas, PW.4, who was a maid servant in the house of P.W.1 stated in her evidence that all the accused beat PW.1 with axe, spears and sticks on his legs, hands and head and when she and PW.5 intervened, she was beaten by A.2 and A.3 with sticks and PW.5 was beaten by A.3 with stick. The evidence of PW.5, another witness, resident of the same village is that he saw while A.2, A.3, A.7 and A.14 beat PW.1 with sticks and he also stated that all the accused participated in the commission of offence. When he questioned, A.3 beat him with stick on the right fore-arm. He further stated that when PW.4 intervened, she was also beaten by the accused. If actually, the attack was made against PWs.1, 4 and 5 in the manner as spoken to by them, more severe injuries would have been caused to PW.1. The evidence indicates that the weapons like axe, spears were used. No injury, which was supposed to have been caused by a sharp edged weapon was noticed by PW.9 on the person of PW.1. Further the injuries noticed by PW.9 on the person of PWs 1, 4 and 5 also do not correspond to the overt acts spoken to by PWs 1, 4 and 5. Another important fact, which requires to be mentioned here is, PW.1 stated in his deposition before the trial Court that PW.6 (his daughter) sent the report to the Police Station and thereafter the A.S.I. of Police visited his house when he was present. Curiously, in the cross-examination he stated that when A.S.I. of Police reached his house at 9.00 A.M. he gave another report to A.S.I. and again he says that he did not actually remember whether he gave it to the A.S.I. of Police or not. PW.1 also stated in the cross-examination that he does not know as to who drafted Ex.P.1. He also admitted that the name of PW.6 who is his daughter is not mentioned in Ex.P.1 report and about her arrival to the place of occurrence. He also admitted that he does not know as to who drafted Ex.P.1 report. Thus, the prosecution has not come forward with a specific theory as to how in fact the criminal law was set into motion in the present case. In view of the rivalry between the prosecution party and the accused, unless the testimonies are convincing and free from infirmities, it is not safe to base a conviction on the evidence of PWs 1, 4 and 5. As already stated although PW.1 stated 25 names of accused persons and also stated some more persons having participated in the attack along with the 25 accused persons who were named in the FIR did not specify any specific overt act committed by any of the accused. The medical evidence does not corroborate oral evidence suggesting that the incident might not have taken place in the manner as spoken to by the direct witnesses. There is inordinate delay of FIR reaching the Court. How the FIR reached the Police Station is at variance. PW.11 who registered the case specifically stated that while he was in the Police Station on 17.1.1993, he received a written report from PW.1, basing on which, he registered Ex.P.9 FIR. On a reappraisal of the entire evidence on record, I am of the view that the evidence forth coming in the present case consists of material inconsistencies, improbabilities and does not inspire confidence of this Court. In view of the enmity between both the parties, it is quite unsafe to rely on the testimony of PWs 1, 4 and 5 to base a conviction against A.1 to A.5 and A.7 who are the appellants in the present appeal. But the learned trial Court without properly appreciating the evidence on record recorded a conviction against them and the approach adopted by the learned trial Court seems to be mechanical and the conclusion reached by it is erroneous. In view of the aforementioned reasoning, the order of conviction passed by the learned trial Court against the appellants is set aside. The fine amount, if any paid by them shall be refunded. The Criminal Appeal is allowed accordingly. _________________ R.KANTHA RAO,J 27TH August, 2010 PNV