HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1187 of 2007 DATED: 10.11.2011 BETWEEN: Laxman Singh . Appellant And State of A.P. Rep. by PP Respondent HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1187 of 2007 JUDGMENT: (Per RKR,J) This criminal appeal is filed against the judgment dated 05.07.2007 passed by the III Additional Sessions Judge, (Fast Track Court) at Medak in S.C.No.450 of 2005. 2. The appellant/sole accused was tried by the learned Additional Sessions Judge for the offences under Sections 302 and 324 IPC, was convicted for the said offences and was sentenced to undergo imprisonment for life and to pay fine of Rs.500/- for the offence under Section 302 IPC and he was further sentenced to undergo rigorous imprisonment for six months for the offence under Section 324 IPC. Challenging the said order of conviction and sentence the appellant preferred the present appeal. 3. I have heard Sri C.Praveen Kumar, learned counsel appearing for the appellant and the learned Public Prosecutor representing the State. 4. Briefly stated, the prosecution case is as follows: On 06.06.2005 at 10.00 PM PW.1 went to Medak Police Station and made an oral statement to the effect that he was working as a night watchman with one Ravinder Seth and was staying in the limits of CSI Compound, Medak, on 05.06.2005 in the evening hours, the deceased came from Nepal visited the appellant and handed over a chit sent by PW1’s wife. The deceased stayed with PW.1 and the appellant in the said quarters. 5. On 06.06.2005 PW.1, deceased and the appellant went to the toddy shop, consumed toddy and then took non-vegetarian food and went to the room of PW.1. PW1 slept in intoxication while the deceased and the appellant continued to consume liquor. Some altercation took place between the deceased and the appellant. The appellant took up a dagger which he possessed in connection with his profession and started stabbing the deceased. PW.1 woke up and saw the appellant attacking the deceased and intervened, the appellant also inflicted injuries on PW.1. PW.1 further stated to the Sub-Inspector of Police-PW11 that the appellant besides indiscriminately stabbing the deceased also beat him with granite, as a result of which, the deceased fell down and died of the injuries. 6. Basing on the statement of PW.1, PW.11-Sub Inspector of Police, Medak Town registered a case in Crime No.67 of 2005 under Sections 302 and 324 IPC. PW.12 –Inspector of Police investigated in to the offence and filed charge sheet against the appellant on completion of investigation. 7. Before the learned Magistrate, the prosecution in order to establish the guilt of the appellant, examined Pws.1 to 12 and marked Exs.P.1 to P.16 and MOs1 to 6. The appellant did not propose to examine any defence witness nor marked any documents on his behalf. Mainly resting on the evidence of PW.1, the learned trial Court convicted the appellant for the offences under Sections 302 and 324 IPC and sentenced him to punishment as mentioned above. 8. Now the point for determination in this appeal is whether the order of conviction and sentence passed by the learned Sessions Judge can be sustained? 9. Sri C.Praveen Kumar, learned counsel appearing for the appellant would submit that the entire case rested on the evidence of PW.1. Admittedly, the deceased consumed liquor along with the appellant and PW.1 and PW.1’s evidence being highly inconsistent and discrepant, ought not to have been relied upon by the learned trial Court. The learned counsel would further submit that there is any amount of inconsistency between the ocular version of PW.1 and the medical evidence and therefore, the appellant is entitled for benefit of doubt. 10. On the other hand, the leaned Public Prosecutor would submit that since the presence of PW.1 at the scene of offence is not in dispute, he being an injured witness, the learned trial Court rightly convicted the appellant and the conviction and sentence passed by the trial Court need no interference in this appeal. 11. In the first place, it is necessary to look into the report Ex.P-1 which is registered basing on the oral statement made by PW.1 to PW.11-the Sub Inspector of Police. Apart from the other things, PW.1 stated to PW.11 that at about 07.00 PM on the date of incident he heard some noise from the room and found the appellant and the deceased quarreling with each other. In the course of quarrel, the appellant took up the dagger (jambia) and stabbed and cut the deceased, who fell down and died on the spot. He specifically mentioned that he saw the appellant stabbing the deceased on throat, face, chest and shoulders. He further stated that when he intervened, the appellant even tried to kill him with the dagger and when he defended, he received injuries on the left hand and the right arm. If we see the evidence of PW.1 given in the Court, it creates any amount of doubt as to whether PW.1 in fact witnessed the actual incident. It is true that the evidence on record reveals that all the three consumed liquor on the date of incident, but on thorough examination of the evidence of PW.1 given before the Court we found that it does not reveal that he witnessed the actual incident, which leads to the death of the deceased. 12. The evidence of PW-1 before the Court discloses that all the three consumed liquor and thereafter PW.1 slept. While the deceased and the appellant were taking food, when some blood fell on his left hand, PW.1 woke up and found a knife in the hands of the appellant and one granite stone in another hand. When he tried to interfere while stabbing the appellant, he was also attacked by the appellant with knife causing injuries. His evidence before the trial Court reveals that he received injuries on the right wrist and on the left thumb, chest and right shoulder. In the cross-examination, however, PW.1 stated that at 04.00 PM he fell asleep and woke up at 07.00 PM and that he did not know what happened between 04.00PM and 07.00 PM as he was sleeping. He specifically admitted in the cross-examination that by the time he got up, the deceased was already on the ground. Thus, he gave three different versions viz. the statement to PW.11- the Sub Inspector of Police and basing on which, the first information report was lodged. In another version in the chief-examination, altogether, a different version in the cross examination to the effect that he did not see actual incident at all. In the cross-examination, he stated before the trial Court that apart from holding a knife, the appellant was also holding a granite stone in the other hand. But, this fact he did not state in the first information report. The injuries he received, which were spoken to in the chief-examination are at variance with those mentioned in the statement before PW.11. 13. Though the first information report is not a substantive piece of evidence, it can be used for contradicting the maker of it to test the veracity of the version. In the instant case, as already stated, the version given by PW.1 before the Court is at variance with the version which he first gave before PW.11, basing on which, the first information report was registered. Further, according to PW.4-the doctor, who examined PW-1 and issued injury certificate-Ex.P.3 he found only four simple injuries i.e. two abrasions and two lacerated wounds and the doctor admitted in his cross-examination that those injuries can be caused by fall. Since the appellant, the deceased and PW1 had drunk heavily, there is a possibility of quarrel between them. Since all the three were in a drunken state, unless highly convincing version is placed on record by PW.1, it is not safe to base the conviction basing on the sole testimony of PW.1, the injuries which he received as per his version before the trial Court those stated to PW.11 in his statement are not tallying with the injuries noted by PW-4, the doctor examined him and issued injury certificate. 14. PW.10 is the autopsy surgeon, noticed the following injuries on the body of the deceased: 1. Lacerations – 8-10 on left side temporal, parietal and left Jygomati regions of head. Each 9” x 3” x 2” all clubbed together. 2. Laceration on left check – 6” x 3” x 2” 3. 5-6 Lacerations on neck – cutting – trachie, major blood veseals on both sides – each – 5” x 3” x 3”. 4. Stab injury on left side shoulder – measuring 3” x 2” x 2” 5. 8-10 lacerations on abdomen each 4 ½ “ x ½” and ½”. According to PW.10, the death of the deceased was due to asphyxia and shock because of cut throat injuries. The injuries found on the body of the deceased by the autopsy surgeon are at variance with the injuries spoken to by PW.1, who is said to be an eyewitness. Further, admittedly the appellant, the deceased, as well as PW.1 indulged in heavy consumption of liquor. But, PW-10-doctor, who conducted postmortem examination over the deadbody of the deceased, did not notice any alcohol while conducting postmortem examination. According to PW.1, he saw the appellant armed with knife in one hand and granite stone in the other hand. But, the investigating officer did not seize the granite stone. There were no injuries found by the doctor, who conducted postmortem examination over the deadbody of the deceased as spoken to by PW.1, the eyewitness. 15. The prosecution sought to prove the case through PW.1, who according to the prosecution is a direct witness to the occurrence. In such a situation, unless the evidence of PW.1, who consumed liquor along with the deceased and the appellant is highly convincing, it is quite unsafe to base a conviction entirely resting on his evidence. The reason being no other person witnessed the incident and all and the three were in drunken condition. If PW.1 really witnessed the incident, he must be in a position to give a correct account of the incident without any inconsistencies on material aspects. As referred above, the evidence of PW.1 is full of material inconsistencies and discrepancies. In the cross-examination his evidence clearly indicates that he did not witness the incident and after he woke up from the sleep, he only saw the deceased lying on the ground. Therefore, in our view, the evidence of PW.1 is undependable and the learned trial Court had fallen into error in believing the evidence of PW.1 and recording the conviction against the appellant basing on his evidence. 16. The conviction and sentenced passed by the trial Court therefore, cannot be sustained and the appellant is entitled for benefit of doubt. 17. Consequently, for the reasons assigned by us hereinbefore, we set aside the conviction and sentence passed by the learned trial Court and acquit the appellant of the charges under Sections 302 and 324 IPC and allow the criminal appeal. The appellant who is undergoing jail sentence in connection with this case shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellant, shall be refunded to him. __________________ A. GOPAL REDDY, J ________________ R. KANTHA RAO, J Date: 10-11-2011 kvrm/ccm HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1187 of 2007 DATED: 10.11.2011