THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.668 of 2007 Date: 06-4-2010 Between Baindla Narayana and 3 others … Appellants/Accused 1 to 4 and State of A.P., rep. by P.P., High Court of A.P., Hyderabad … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.668 of 2007 Judgment: (per Raja Elango, J.) Appeal arises out of the conviction and sentence imposed by the learned Principal Sessions Judge, Medak at Sangareddy, in Sessions Case No.364 of 2002 against the appellants/accused 1 to 4. They were sentenced to undergo imprisonment for life and to pay a fine of Rs.3,000/- each and in default, to undergo simple imprisonment for six months each for the offence under Section 302 of IPC. 2. The case of prosecution projected by the Investigating Agency is as follows: Accused No.1 and the deceased B.Basappa are brothers. P.W.4 is the wife of the deceased. About ten years prior to the date of the incident, accused No.1 and the deceased purchased land to an extent of Ac.5-00 jointly at Mandapur village. The deceased gave Rs.30,000/- towards his share for the purchase of said land and the land was registered in the name of accused No.1’s wife and further, accused No.1 did not give him yield from the said land. The deceased was also managing the affairs of Pochamma Temple and accused No.1 took the income of Rs.1,00,000/- received from the temple. On that the deceased was removed from managing the temple affairs and then accused No.1 took over the charge of the same. Subsequently, the deceased with his family left Borancha village and started living at Badalgoan village. Thus there were disputes between them. About one year later, the deceased contested as TDP candidate for MPTC member of Borancha village against one Anjaiah and was defeated and accused No.1 was the supporter of Congress party. As P.Ws.1 to 3, 5 and 6 supported the deceased, accused No.1 bore grudge against them. On the date of incident, P.Ws.1 to 3, 5 and 6 and the deceased went to Manoor Police Station for giving their attendance in connection with a criminal case filed against them for an offence under Section 307 of IPC on the allegation that they attacked accused No.1 to murder him. After giving attendance, P.W.3 left for Narayankhed and rest of them stayed in the police station. While P.W.3 was proceeding to Narayankhed in an auto, accused 1 to 4, 7, 9, 11 and 15 came in a jeep in opposite direction and chased him. When the auto reached old bus-stand, Narayankhed, P.W.3 got down from the auto and ran towards the police station and informed the same to the Sub Inspector of Police, Narayankhed. Then on the information given by P.W.3, the Sub Inspector of Police telephoned to the Sub Inspector of Police, Manoor Police Station and informed the same and that there was threat to the deceased, P.Ws.1, 2, 5 and 6. On that they stayed there till 2 p.m. Thereafter, they all proceeded in an auto, on the way when they reached near Pippiri village, accused No.1 and his followers chased them in a jeep near Jagannathapuram bus-stop, they over took the auto and stopped the jeep in front of the auto. Then they all got down from the auto and tried to escape, while running the deceased who was ahead among others fell down in a stream and P.Ws.1, 2, 5 and 6 crossed him ran ahead and P.Ws.5 and 6 hid themselves in the bushes and then P.W.5 saw accused No.1 and his followers accused 2, 4, 5, 7, 12 and others attacking the deceased. According to the evidence of P.W.6, first accused 5 and 7 came to the deceased, then accused No.1 armed with an axe hit on the head of the deceased, accused No.2 chopped on the neck, accused No.3 chopped with the axe on the back, accused No.4 chopped on the right leg with an axe. One Badagenu Vithal (not an accused) chopped on the left leg of Basappa. Thereafter, P.W.1 lodged a report marked as Ex.P-1. On 18-7-2001 at about 5 p.m., on the strength of the report given by P.W.1, P.W.11 the then Sub Inspector of Police, Narayankhed registered the same as case in Crime No.60 of 2001 and issued FIR, which is marked as Ex.P-12. Then P.W.11 carried out his investigation by examining P.Ws.1, 2, 3 and 5 and recorded their statements. He then visited the scene of offence and found the dead body lying in between the check dams facing the ground. He then prepared the rough sketch of the scene marked as Ex.P-13. Further investigation was taken over by P.w.12 the then C.I. of Police, who visited the scene of offence, examined P.W.4 and recorded her statement. On 19-7-2001 at 6.30 a.m., he got the scene photographed. He then held inquest over the dead body in the presence of P.W.7 under Ex.P-1 panchanama. During the course of inquest, he seized all the relevant material objects and then the dead body was sent for autopsy. On 19-7-2001 at 10.30 a.m., on receiving requisition, P.W.9 the then Civil Assistant Surgeon, Government Hospital, Narayankhed held autopsy over the dead body and opined that the cause of death was due to shock and haemorrhage. Ex.P-8 is the post-mortem report. On 26-7-2001 P.W.11 examined P.W.6 and recorded his statement. On 28-7-2001 on credible information he apprehended accused 1 to 4 and seized the jeep under Ex.P-7 panchanama. During the course of their investigation at their instance four axes were recovered in the presence of P.W.8. Exs.P-3 to P-6 are the panchanamas. Then the accused were sent for judicial remand. P.W.13 the then Circle Inspector of Police took over the charge and after receiving all the relevant documents filed the charge-sheet. 3. In support of its case, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P-13. The defence got marked Exs.D- 1 and D-2. 4. The learned Sessions Judge after due trial, evaluating the evidence adduced by the prosecution, relied upon the evidence of P.Ws.1, 2, 5 and 6 and also on the medical evidence, convicted the appellants herein, as stated above. 5. Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the appellants/accused 1 to 4 and the learned Public Prosecutor appearing for the respondent/State. 6. Admittedly, there was enmity between the groups of P.W.1 on one hand and the appellant/accused No.1 on the other, in connection with some land dispute. Originally, case was registered against 39 persons and after due investigation, charge-sheet was filed against 31 persons for the offences under Sections 147, 148, 149 and 302 of IPC. The Investigating Officer deleted the names of 8 persons since his investigation does not disclose any participation by the said 8 persons. 7. The points for consideration stated by the learned Senior Counsel Sri C.Padmanabha Reddy are as follows: (a) There is inordinate delay in lodging Ex.P-1 complaint by P.W.1, which reaches the court, 16 hours after the alleged incident; (b) Except P.W.6, there is no specific overt act attributed by the witnesses cited by the prosecution. (c) The evidence of P.W.6 also highly unbelievable since the same is recorded after a lapse of 8 days. 8. We have perused the evidence and the records before this court. Admittedly, the occurrence took place on 18-7-2001 at 2 p.m., and the complaint was lodged at 5 p.m. The concerned court is within the reach of five minutes from the police station. But the complaint reached the court on 19-7-2001 at 9 a.m. Hence there is inordinate delay in sending the complaint to the concerned court. Normally, delay is not fatal to the prosecution, but, at the same time, the unexplained delay certainly cause prejudice to the accused. In view of the same, we are of the opinion that the delay in the present case is necessarily fatal to the case of prosecution. 9. As far as the evidence of P.W.1 is concerned, he stated before the Investigating Officer in Ex.P-1 complaint and also in the statement recorded under Section 162 of Cr.P.C., named all the 31 persons who were charged for the said offence, but he has not deposed before the court about any specific overt acts to the appellants herein, except the bald allegation that under the leadership of accused No.1, the appellants herein along with the other persons chased the deceased Basappa. 10. The evidence of P.Ws.2 and 5 is also on the same lines as deposed by P.W.1. They have not implicated any of the appellants herein except accused No.1, that too it was stated by the said witnesses that under the leadership of appellant No.1, the other accused were formed into an unlawful assembly and chased the said Basappa. 11. The learned Sessions Judge relied on the evidence of P.W.6, who is the only eyewitness and who attributes specific overt acts to accused 1 to 4, the appellants herein. The evidence of P.W.6 is that he also accompanied P.Ws.1 to 5 after signing in Manoor Police Station and that he saw the appellants herein attacked the deceased with the weapons like axe and knife. 12. The learned Sessions Judge accepted the evidence adduced by P.W.6 and convicted the appellants, as stated above. But, in contrary, the learned Sessions Judge has not scrutinized the evidence of P.W.6 in a proper perspective. P.W.6 came to be an eyewitness to the occurrence that occurred on 18-7-2001 and he informed the police about the same only on 26-7-2001. Further, it is the case of P.W.6 in cross-examination that he has not stated the names of accused 2 to 31 before the Investigating Officer while he was examined under Section 162 of Cr.P.C. 13. The learned Public Prosecutor submitted that even though P.W.6 stated in the cross-examination that he has not stated the presence of accused 2 to 31, in fact, he has stated about the same before the Investigating Officer while he was examined under Section 162 of Cr.P.C. But, unfortunately, the learned Additional Public Prosecutor, who conducted the case before the Sessions Court, has not treated P.W.6 as hostile and he has not put any questions to the said witness to disprove the claim of P.W.6. Further, the Investigating Officer has also deposed before the court that he has not investigated the reason for delay by P.W.6 in approaching the Investigating Officer to depose regarding the incident. But, P.W.6 in his evidence clearly stated that he went to the police station on his own accord on 26-7-2001 and gave statement after 8 days since he afraid of the appellants herein. 14. In the above said background, this court is of the view that the evidence of P.W.6 cannot be merit acceptance and placing reliance on the evidence of P.W.6 is not safe to convict the appellants for an offence like Section 302 of IPC, which is punishable with minimum sentence of life imprisonment. 15. Further, the entire case of prosecution projected by the Investigating Agency that the witnesses and the deceased went to the police station of Manoor to comply the condition as per the orders of the court in connection with the offence registered against them. It is the further case of the prosecution that on 18-7-2001 when the above said witnesses were present, P.W.3 Gaddem Anji Reddy was chased by the appellants herein and the said Anji Reddy informed the same to Narayankhed Police and in turn Narayankhed Police informed Manoor Police to detain the witnesses P.Ws.1 to 6 expecting that the appellants herein may attack them, as stated by P.W.3 Anji Reddy. But, there is no explanation by the prosecution why, when there is some apprehension of attack over P.Ws.1 to 6, how Manoor Police allowed them to proceed to their native village, admittedly, when there is a complaint lodged by P.W.3 in connection with chasing by the appellants herein. In the absence of any complaint registered by Narayankhed Police in connection with the complaint lodged by P.W.3, this Court is of the view that since the occurrence took place by 4 p.m., in order to project that P.Ws.1 to 6 were present at the scene of occurrence, a false theory that P.W.3 was chased by the appellants herein was introduced by the Investigating Agency. In view of the fact that there is nothing to suggest that there was an incident prior to the occurrence on the particular date, this Court is of the view that the presence of the eyewitnesses as alleged by the prosecution is highly unbelievable and the present witnesses cannot be termed as eyewitnesses to the occurrence. 16. Hence, in view of the fact that P.Ws.1, 2 and 5 have not deposed regarding the overt acts to P.W.3, the evidence of P.W.6 is highly unbelievable and the presence of the said witnesses is also not properly explained by the prosecution, this Court is of the view that it is unsafe to convict the appellants on the basis of the available evidence before this Court. Further, this is a case wherein admittedly there was a long enmity between these two groups and further cases are also pending against P.Ws.1 to 6 for an attempt to murder over accused No.1 and further it is evident that there were clashes and fractions between the villages in that area. Hence, there is every possibility of implication of the appellants herein by the witnesses to wreak vengeance against the other group. It is also evident in this case that 39 persons were mentioned in the complaint and 31 persons were charged, but the witnesses deposed only against 4 persons, that too with some bald allegations, clearly shows that it is a false implication of appellants in this occurrence. 17. Hence, on the basis of above discussion, this court is of the view that the conviction and sentences imposed by the trial Court against the appellants/accused 1 to 4 are liable to be set aside and accordingly the conviction and the sentences are set aside and the appeal is hereby allowed. The bail bonds of the appellants shall stand cancelled. The fine amount, if any, paid shall be refunded to them. __________________ JUSTICE D.S.R.VARMA ___________________ JUSTICE RAJA ELANGO 06th April, 2010. Ak THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.668 of 2007 (Judgment of the Division Bench delivered by RE, J.) 06th April, 2010. (Ak)