HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.464 OF 2007 Dated:24-08-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Boya Balaraju & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.464 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State preferred this appeal aggrieved by the acquittal order passed against A.5 to A.7 in S.C.No.144 of 2002 on the file of IV Additional Sessions Judge, Kurnool, dated 21.1.2004. 2. In all seven persons were put on trial before the IV Additional Sessions Judge, Kurnool. As many as 9 charges were framed against the accused as under: Against A.1 to A.7 for the offence punishable under Section 148 of the IPC; Against A.1 to A.4 for the offence punishable under Section 302 of the IPC; Against A.5 to A.7 for the offence punishable under Section 302 read with 149 of the IPC; Against A.1, A.5, A.6 and A.7 for the offence punishable under Section 324 of the IPC; Against A.2 to A.4 for the offence punishable under Section 324 read with 149 of the IPC; Against A.1 and A.2 for the offence punishable under Section 324 of the IPC; Against A.3 to A.7 for the offence punishable under Section 324 read with 149 of the IPC; Against A.4 and A.5 for the offence punishable under Section 324 of the IPC; Against A.1 to A.3, A.6 and A.7 for the offence punishable under Section 324 read with 149 of the IPC. The learned Sessions Judge by the impugned judgment found A.1 to A.4 guilty for the offences punishable under Section 302 IPC only and sentenced them to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default to suffer simple imprisonment for one month and acquitted them of the other charges. However, A.5 to A.7-respondents herein were found not guilty for the offences under Sections 148, 302, 149, 324 and 324 r/w 149 IPC and were acquitted of the said charges. A.1 to A.4 preferred an appeal in Crl.A.No.413 of 2004 against their conviction and sentence and the said appeal has been dismissed by this Court by judgment, dated 17.7.2006 confirming the convictions and sentences recorded against them by the learned Sessions Judge. 3. The prosecution story as unfolded during the course of trial, in brief, is that one Uppari Venkateswarlu (hereinafter referred to as ‘the deceased’) is the own brother of P.Ws.1 and 2 and the second son of P.W.3, and that they are all residents of Indira Nagar, Yemmiganur, Kurnool District. The accused are also residing in the same village. A.1 to A.5 are the sons and A.7 is the daughter of A.6. P.W.1 and A.1 are masons and used to work together. About one year prior to the date of incident, both P.W.1 and A.2 quarreled with each other and since then they were not in talking terms. On 3.2.2001 at about 7.00 a.m., A.1 to A.5 threatened to kill P.W.1 on the allegation that P.W.1 dashed against their sister-A.7. On 3.2.2001 at about 8.45 a.m., A.1 to A.7 formed into an unlawful assembly armed with deadly weapons like sickles and also with sticks with the common object of murdering the deceased and P.W.1 and caused hurt to P.Ws.2 and 3 in the house of P.W.3. A.1 to A.4 dealt blows on the deceased, as a result of which, he fell on the ground. A.1 and A.5 dealt blows on the fingers of P.W.1 with the hunting sickle and A.5 dealt a blow on the head of P.W.1 with the blunt side of the hunting sickle and caused hurt. A.6 dealt a blow on the head of P.W.1 with Pattudu stick and caused hurt. A.7 beat P.W.1 on the right cheek with stick and caused hurt. A.4 and A.5 dealt blows on P.W.2 with the blunt side of the hunting sickles and caused hurt. Immediately, P.Ws.1 to 3 took the deceased to the police station and from there, to the Government Hospital, Yemmiganur, and that the duty doctor referred the deceased to the Government General Hospital, Kurnool for better treatment. On the same day, P.Ws.1 to 3 reached the Police Station and P.W.1 lodged a complaint at about 9.00 p.m. on the basis of which, P.W.12-Assistant Sub-Inspector of Police registered a case in Crime No.13 of 2001 under Sections 147, 148, 324, 307 r/w 149 IPC and issued Ex.P.1-FIR. The deceased succumbed to the injuries on 4.2.2001 in the Hospital at about 6.40 a.m. Upon receipt of death intimation of the deceased, Section of law was altered to Sections 147, 148, 324, 307, 302 r/w 149 IPC and Ex.P.23-altered FIR was issued. P.W.13-Inspector of Police, Yemmiganur at about 9.45 p.m. reached the Government Hospital and recorded the statements of P.Ws.1 to 3, and that he visited the scene of offence on 4.2.2001 at 0030 hours and recorded the statements of P.Ws.4 and 5. In the presence of P.W.7, he conducted the inquest over the dead body of the deceased. Ex.P.5 is the inquest report. He sent the dead body of the deceased for post-mortem examination. P.W.9-doctor conducted autopsy on the dead body of the deceased on 4.2.2001 and issued Ex.P.10-post-mortem examination report. After completion of investigation, P.W.11-Inspector of Police filed the charge sheet against the accused. 4. To bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15 and proved 30 documents under Exs.P.1 to P.30 and exhibited the case properties-M.Os.1 to 8. The accused were examined under Section 313 Cr.P.C. on the incriminating evidence appearing in the prosecution witnesses. They denied the same and marked the portion of 161 Cr.P.C. statement of P.W.1. 5. The learned Sessions Judge upon consideration of evidence on record convicted A.1 to A.4 as aforementioned but acquitted the respondents-A.5 to A.7 from the charges. Hence, the present appeal by the State. 6. Sri Prahlad Reddy, learned Additional Public Prosecutor contends that P.Ws.1 to 3, who are the injured witnesses specifically stated about the participation of the respondents-A.5 to A.7 in the commission of offence along with A.1 to A.4. Though the report-Ex.P.1 given by P.W.1 did not contain all the relevant material about the overt acts of A.5 to A.7, still once all the accused with the common intention attacked the deceased and in the process caused injuries to P.Ws.1 to 3, the respondents herein are also liable for punishment with the aid of Section 149 IPC for the offences with which they stood charged. Therefore, the lower Court fell in error in coming to the conclusion that Ex.P.1 do not contain the minure details about the overt acts of A.5 to A.7. The minor variations in the evidence of P.Ws.1 to 3 did not affect the main case of the prosecution and therefore, the same cannot be a ground for acquittal of the respondents. 7. Per contra, Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondents-A.5 to A.7 would contend that P.Ws.1 to 3 improved their version in the evidence, which is contradictory with each other. Since the investigating Officers-P.Ws.13 and 15 admitted about the omissions of P.Ws.1 to 3 when they are examined under Section 161 Cr.P.C., the learned Sessions Judge rightly acquitted them and therefore, the findings of the learned Sessions need no interference by this Court. 8. In view of the above submissions, the question that falls for consideration in this appeal is whether the prosecution is able to establish the participation of A.5 to A.7 in the commission of offence along with A.1 to A.4? 9. The Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 10. It is well settled that the Court can separate the grain from the chap while evaluating the evidence to know the truthfulness of the evidence. Merely because the witnesses happened to be injured witnesses, the Court cannot blindly accept their evidence for convicting the accused. P.W.1 who is the injured witness stated that while he was standing in the bazaar behind his house, A.1 to A.5 threatened him on the ground that he touched their sister- A.7. On the same day, at about 7.00 p.m. he along with his wife went to the house of his parents. While they were chitchatting in front of the house of his parents, at about 8.45 p.m., A.1 to A.7 came there armed with hunting sickles and sticks. A.1 to A.5 were armed with hunting sickles and A.6 and A.7 were armed with sticks. A.1 while scolding P.W.1 threatened him to kill on the ground that he touched his sister. When A.1 tried to hack P.W.1 by raising his hand with the hunting sickle, his elder brother Venkateswarlu-deceased came to his rescue. Then A.1 to A.4 each armed with hunting sickles, hacked the deceased on his head and on receiving the bleeding injuries, the deceased fell down. Then A.1 to A.5 came upon P.W.1 to hack. He raised his both hands to ward off the blows and in the process, he received bleeding injury on his right middle finger. Then A.5 with butt end of the sickle beat him on his head. A.6 beat him on his head with stick causing bleeding injury. A.7 beat him with a stick on his right cheek and on left shoulder. In the cross-examination, he stated that A.1 threatened to kill him from a distance of about 5 feet. When the accused came upon his house, he did not try to run away into the house but due to fear he moved backwards. The deceased was at a distance of about 3 or 4 feet from the accused when they threatened P.W.1. A.1 to A.4 hacked the deceased on the head while standing in front of him. A.1 to A.4 surrounded the deceased and hacked him on the head with respective sickles simultaneously. He admitted that he cannot say whose blow caused injury on his right hand middle finger. A.5 and A.6 while holding their respective weapons with both the hands beat him on his head with force. He did not mention in Ex.P.1 that A.7 with hunting sickle beat on the head of his father. Whereas, P.W.2 stated that when the deceased went to the rescue of P.W.1, A.1 to A.4 hacked the deceased on his head with hunting sickles. When his father intervened, A.1 and A.2 beat his father on the head with the butt end of the hunting sickles and caused bleeding injuries. When he intervened, A.4 with the butt end of hunting sickle tried to hack him. In the cross-examination, he admitted that A.1 to A.4 hacked the deceased with hunting sickles on the head and that when A.1 to A.4 made the assault, A.5 to A.7 were also present. He admitted that A.5 to A.7 did not choose to attack P.W.1. P.W.1 received bleeding injury on his right middle finger as a result of the blow dealt by A.1. He did not observe whether the blow dealt by A.5 caused injury on any part of the body of P.W.1. He stated before the police that A.7 beat P.W.1 with stick on right shoulder. P.W.3 stated that A.1 to A.4 hacked the deceased with hunting sickles on the head due to which, the deceased fell down with bleeding injuries. When P.W.1 tried to intervene, A.4 and A.5 tried to hack P.W.1 with hunting sickles and P.W.1 received injuries on the right palm when he raised his hands to ward off the blows. A.7 beat P.W.1 with stick on the right cheek and A.6 beat P.W.1 with stick on the head. He admitted that A.1 to A.4 surrounded the deceased and hacked on the head simultaneously. A.1 and A.5 alone tried to attack P.W.1 and P.W.1 received only one blow on the palm. The blow dealt by A.1 caused injury on the right palm of P.W.1. Whereas, P.W.4, the wife of the deceased stated that A.1 to A.4 surrounded the deceased and hacked with respective hunting sickles on the head. A.1 and A.5 went upon P.W.1 to attack and when P.W.1 raised his hand to ward off the blows, he received bleeding injury on right palm. A.7 beat P.W.1 with stick on the back. So, the evidence of P.Ws.1 to 4 is at variance about the participation of accused and their attacking P.W.1. As seen from the above evidence, P.W.1 stated that A.7 beat him with a stick on his right cheek and on left shoulder. Whereas, P.W.2 stated that A.7 beat P.W.1 with a stick on right shoulder. On the other hand, P.W.3 stated that A.7 beat P.W.1 with a stick on the right cheek. 11. The investigating officer-P.W.13 admitted in the cross-examination that P.W.1 did not state before him specifically that he received injury on the right middle finger to ward off blows aimed by A.1 and A.5, that P.W.1 did not state before him that A.7 beat him with a stick on left shoulder. P.W.2 did not state before him that A.7 beat P.W.1 on the left shoulder. P.W.3 did not state before him the nature of the weapon use to beat P.W.1 on the right cheek. Similarly, P.W.15 admitted that in Ex.P.1 P.W.1 stated that A.1 to A.4 beat him with hunting sickles. P.W.1 did not state in Ex.P.1 that A.5 beat him on his head with butt end of the hunting sickle. P.W.1 did not state in Ex.P.1 that A.7 beat him on right cheek and on left shoulder with stick. He admitted that with regard to attack on P.W.3, the name of A.7 was struck off and substituted the name of A.2 in Ex.P.1 and he stated that it was as per statements made by P.W.1. Thus, there are contradictions and variations in the evidence of P.Ws.1 to 4 with regard to the participation of A.5 to A.7 and overt acts attributed to them by the injured witnesses. As already observed, P.W.2 categorically admitted that when A.1 to A.4 were assaulting the deceased, A.5 to A.7 were also present, but it is not stated that they were armed with sticks or standing or guarding the scene of offence. He further admitted that A.5 to A.7 did not choose to attack P.W.1 when A.1 to A.4 attacked the deceased. He also admitted that he did not observe whether the blow dealt by A.5 caused injury on any part of the body of P.W.1, which is contrary to the evidence of P.W.1. A.6 is the mother of A.1 to A.5 and A.7 is their sister. Therefore, since A.1 to A.4 attached the deceased and P.Ws.1 to 3, it appears that A.5 to A.7 were roped in the crime as having participated in the commission of offence. As already observed, the evidence of P.W.1 has not been corroborated with the evidence of other witnesses in proving the participation of A.5 to A.7 in the commission of offence. Further A.1 to A.5 threatened P.W.1 for his touching their sister-A.7, if the same is motive, the assailant will not leave P.W.1 after hacking deceased. Therefore, the learned Sessions Judge on appreciation of the evidence of P.W.1 involving A.5 to A.7 in proper perspective rightly acquitted them from the charges with which they were put on trial. In the absence of any substantial and compelling reasons pointed out by the learned Public Prosecutor, we cannot come to a different conclusion than the one reached by the Court below. We see no merit in the appeal. 12. In the result, the appeal is dismissed. _______________ A. GOPAL REDDY. J _________________ K.C.BHANU.J AUGUST 24, 2010 Tsr.