THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.842 of 2004 Date: .02.2011 Between: Bantrothu Peraiah … Petitioner/ Complainant AND Namala Srinu and 6 others … Respondents/ 6 accused & State THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.842 of 2004 ORDER: The learned Additional Assistant Sessions Judge, Guntur acquitted all the six accused, who faced the trial in S.C.No.363 of 2001, through the impugned judgment dated 20.11.2004. Aggrieved by the same, PW.1, who laid Ex.P.1 complaint, preferred the revision. Neither side raised the question regarding the maintainability of the revision. Both sides advanced submissions regarding the merits of the case. 2. Charges for the offences under Section 307 of the Indian Penal Code (‘IPC’ for short) against A.1 and under Section 307 read with Section 149 IPC against A.2 to A.6 were framed. All the accused pleaded not guilty for the respective charges. The prosecution examined seven witnesses in all. Exs.P.1 to P.20 and MOs.1 to 9 were marked by the prosecution. The defence exhibited the statement of PW.2 under Section 161 of the Code of Criminal Procedure as Exs.D.1 and D.2. Considering the overall case, the learned trial Judge held that the prosecution failed to make out the guilt of the accused and accordingly recorded acquittal. 3. The case of the prosecution: a) The house of Peraiah, PW.1, who is the revision petitioner herein, is situate in a premises to the west of the school building at Rajagopalanagar, Pedda Kakani. PWs.2 and 3, who are the sons-in-law of PW.1, are also residing in the house of PW.1. b) A.1 and A.2 used to misbehave with the woman flock in a drunken condition and used to consume alcohol sitting on the terrace of the school building situate to the immediate east of the residential premises of PW.1. As PW.1 and others took exception to the conduct of A.1 and A.2, A.1 and A.2 climbed over the roof top of the school building at about 7 p.m. on 12.06.2000, consumed alcohol and urinated into the house of PW.1 (perhaps with a view to irritate PW.1). PW.1/PW.3 chastised A.1 and A.2 for their conduct. PW.1 went to the police station and informed police about the conduct of A.1 and A.2. c) As a retaliation, at about 12.30 a.m. on the intervening night of 12/13th June, 2000, A.1 to A.4 went to the house of PW.1 and attempted to kill PWs.1 and 2. A.1 fired at PW.2 initially and later at PW.1 with a firearm while A.3 and A.4 were guarding the house of PW.1 to prevent the intervention of outsiders. As PW.3 and others gathered on hearing the commotion, A.1 to A.4 ran away from the house of PW.1. d) Subsequently, PW.6 arrested A.1 and A.2 on 15.06.2000 and seized various material objects from A.1 and A.2. Upon the confessional statement of A.1 and A.2, PW.6 arrested A.5 and A.6. e) This is the broad story of the prosecution. 4. Sri N. Harinath, learned counsel for the revision petitioner/de facto complainant contended that police did not conduct the investigation properly so far as A.5 and A.6 are concerned, albeit MO.1, a country made pistol belonged to A.5 and A.6. He claimed that A.5 and A.6 belong to Communist Party of India (‘CPI’ for short) and that on account of political reasons the case was not properly investigated so far as A.5 and A.6 are concerned. The learned trial Judge recorded in the impugned judgment that the learned Additional Public Prosecutor conceded that the prosecution failed to make out a case against A.5 and A.6. 5. Sri K. Srikantha Reddy, learned counsel for A.5 and A.6 submitted that where no case is made out against A.5 and A.6, the question of alleging that police did not conduct the investigation properly so far as A.5 and A.6 are concerned is not sustainable. It may be noticed that there are as many as nine material objects, out of which, MO.1 is the pistol and MOs.2 to 6 are bullets. MO.8 is an empty bullet, whereas MO.9 is a box containing 12 bullets. MO.7 is a black coloured zip bag in which MOs.1, 8 and 9 were found. MO.1 and MOs.7 to 9 were seized by police from A.1 and A.2. None of the material objects were seized from A.5 and A.6. The only complicity of A.5 and A.6 is the alleged confession of A.1 and A.2. The confession of A.1 and A.2 has not even been proved. 6. It is the case of PW.6 as the Inspector of Police that he arrested A.1 and A.2 on 15.06.2000 in the presence of PW.4 and others and that A.1 and A.2 made a confessional statement at that time. Ex.P.2 is the mediators report at the time of arrest of A.1 and A.2 and seizure of MOs.1 and 7 to 9. As rightly submitted by Ms. K. Prasanna, learned counsel for A.2, Ex.P.2 is hit by Section 26 of the Evidence Act. Ex.P.3 is the mediator’s report for the arrest of A.5 and A.6. Nothing was seized from A.5 and A.6. Where Ex.P.2 became inadmissible, there is no evidence to link A.1 to A.4 with A.5 and A.6. I, therefore, wholly agree with the contention of the learned counsel for A.5 and A.6 that absolutely no case is made out against A.5 and A.6. The concession by the learned Additional Public Prosecutor in the trial Court that no case was made out against A.5 and A.6 is perfectly justified. There is no ground to reverse the finding of the learned trial Judge to find A.5 and A.6 guilty of the offence u/s.307 r/w Sec.149 IPC. The case of the prosecution is liable to be rejected so far as A.5 and A.6 are concerned. The learned trial Judge has correctly chosen to do so. 7. In the absence of A.5 and A.6, one of the interesting questions is whether a charge with the aid of Section 149 IPC is maintainable against A.2 to A.4. It is not the case of prosecution that A.1 to A.4 and some others committed the offence. It is the specific case of the prosecution that A.1 to A.4 went to the house of PW.1 at about the midnight on the intervening night of 12/13th June, 2000 and that while A.3 and A.4 guarded the house from outside, A.1 and A.2 went inside and perpetrated the crime. Where the offence was committed by four accused only, where there is no complicity of A.5 and A.6 and where it is not even established that MOs.1 to 6, 8 and 9 belonged to A.5 and A.6, the question of A.2 to A.4 becoming liable for the main offence with the aid of Section 149 IPC would not arise. The minimum required number of persons for the offence u/s.149 IPC is five, whereas it is A.1 to A.4 alone who allegedly committed the offence. However, the conviction of A.1 to A.4 or some of them for the offence u/s.307 IPC with the aid of Section 34 IPC is not ruled out, as even according to the prosecution case, while A.1 and A.2 entered the house, A.3 and A.4 guarded the house from outside. It needs to be examined whether the prosecution made out the case against the accused for the offence u/s.307 IPC and for the offence u/s.307 r/w 34 IPC. 8. Ex.P.6 is the rough sketch of the scene of offence. The school building where A.1 and A.2 used to sit and consume alcohol is shown to be situate to the immediate east of the house of PW.1. PW.3 claimed that on 12.06.2000 A.1 to A.4 went on to the roof top of the school building, consumed alcohol and urinated towards the house of PW.1 and that PW.1 consequently informed the police about the misconduct of A.1 to A.4. PW.1 also spoke similarly both PW.1 did not mention the name of A.3 and A.4. PW.2, however, referred to the names of A.1 to A.4 in his evidence. Curiously, the alleged report of PW.1 to police about the misconduct of A.1 to A.4 on 12.06.2000 has not seen the light of the day. If the claim of PWs.1 to 3 is true, the report of PW.1 to police must be available with the police. No one referred to the alleged report of PW.1 to police in this context. No reason is offered by PW.7 why the alleged report of PW.1 about the misbehaviour of A.1 and A.2 on 12.06.2000 was not placed before the Court. The very claim of PWs.1 to 3 about the incident on the evening of 12.06.2000, thus, is not supported by any documentary evidence. 9. In a criminal case, by and large, ocular evidence takes precedence or at least given the same weight, as the weightage given to documentary evidence. If PWs.1 to 3 have stated that on the evening of 12.06.2000, A.1 and A.2 had misconduct themselves from the roof top of the school building and left the evidence at that, the evidence of PWs.2 and 3 would not have been exposed to suspicion. PWs.2 and 3 further stated that PW.1 later went to the police station and informed the Sub-Inspector of Police about the incident. Very curiously, PW.1 did not state in his evidence that he went to the police station and reported about the unsocial activities of A.1 and A.2. As rightly submitted by the learned counsel for A.2, the evidence of PWs.1 to 3 thus is not agreeing regarding the motive for A.1 and A.2 to attack PWs.1 and 2 on the intervening night of 12/13th June, 2000. Added to it is the absence of the evidence of PW.6 regarding the alleged complaint by PW.1 on the evening of 12.06.2000 about the unholy behaviour of A.1 and A.2. All in all, the story of PWs.1 to 3 that A.1 and A.2 behaved in an obnoxiously and indecent manner on the evening of 12.06.2000 is not made out. 10. If A.1 and A.2 did not have any motive to attack, kill or humiliate PW.1, it is for them to explain why the attack had occurred at all. The accused, on the other hand, contended that A.1 had not been seen eye to eye with PW.6, that A.1 lodged a complaint against PW.6 in the Old Guntur Police Station and that the present case was foisted against the accused by way of retaliation by PW.6. As pointed out by the learned Public Prosecutor, this is a mere allegation by the accused which has not been admitted by the witnesses. Added to it, the accused had not produced the alleged complaint of A.1 to police against PW.6. No weightage need be attached to the defence set up by the accused as the motive for PW.6 to falsely implicate the accused. Assuming that the defence of the accused is true, the accused nevertheless shall have to explain why PW.6 falsely implicated A.2 to A.6 apart from implicating A.1. Again, there is no answer for this situation from the accused. It, therefore, can safely be held that the motive attributed by the defence for the false implication of the accused in the case is not made out. Be that as it may, it is, indeed, the prosecution which must prove this case and not the defence. 11. The case of the prosecution is that by the time A.1 and A.2 raided the house of PW.1 shortly after the midnight, PWs.1 and 2 were sleeping in the backyard of their house, which is to the north of the house of PWs.1 and 2. It may be recalled that PWs.2 and 3 are sons-in-law of PW.1. PW.2 is a regular resident in the house of PW.1, perhaps, as illtam son-in-law. PW.3, however, resides in a separate house in the same locality. The case of the prosecution is that PW.3 was not sleeping in the house of PW.1 and that on hearing the commotion, PW.3 reached to the scene of offence. 12. A reading of the evidence of PW.3 leaves an impression that by the time PW.3 reached the scene of offence, the incident had already perpetrated. The evidence of PW.3 is that A.1 pressed the neck of PW.1 with the foot of A.1 and questioned PW.1 that he reported the incident of the preceding evening to the police threatening PW.1 with a revolver. PW.1 raised alarm cautioning PW.2 and A.1, thereafter, fired against PW.2 twice. PW.2 then caught hold of A.1 and entered into a scuffle with A.1. In the ‘meanwhile’, PW.3 rushed to the scene of offence. In other words, it is the evidence of PW.3 that by the time he reached the scene of offence, A.1 threatening PW.1 and A.1 firing twice at PW.2 already concluded; PW.2 was struggling with A.1 by the time PW.3 went to the scene of offence. As rightly submitted by the learned counsel for A.2, A.5 and A.6, the evidence of PW.3 is not the evidence of direct witness for the offence proper. 13. It is the case of PW.1 that A.1, after pressing the neck of PW.1 with his foot pointed out a pistol at PW.1 and declared that there was no one to save PW.1 at that juncture. According to PW.1, he then raised alarm and that PW.2 arrived to the scene of offence. A.1 once again declared that there was no one to save PW.1 at that point of time. PW.3 did not speak about the alleged challenge of A.1 to PW.1. He merely claimed that A.2 trampled the neck of PW.1 with his foot and later fired two shots from the revolver at PW.2. I do not consider it significant as to the inconsistency between the evidence of PWs.1 and 3 regarding the weapon used by A.1. While PW.1 stated that A.1 used a pistol, PW.3 stated that A.1 used a revolver. Perhaps, PWs.1 and 3 did not know the distinction between the pistol and revolver. All said and done it is a small weapon firearm that was used by A.1 according to PWs.1 and 3. I, therefore, do not consider it to be a contradiction. The contradiction, however, is regarding the challenge of A.1 made to PW.1 and regarding the mode and manner of the incident according to PWs.1 and 3. 14. PW.2 claimed that he was sleeping on the same cot on which PW.1 was sleeping at the time of the incident. PW.2 did not speak about the alleged trampling the neck of PW.1 by A.1. His evidence, on the other hand, is that A.1 pointed out a pistol at the temple of PW.1 and questioned why PW.1 reported against A.1 and A.2 to police on the preceding date. Thus, PWs.1 to 3 did not agree as the minute circumstances in which the incident occurred. 15. PW.1 claimed that A.1 throttled his neck and threatened PW.1 with a pistol. PW.2 claimed that A.1 threatened PW.1 with a pistol but did not speak about the throttling the neck of PW.1 by A.1. PW.3, on the other hand, deposed as if he reached the scene of offence after completion of the incident. Thus, the evidence of PWs.1 to 3 is disjoint and does not corroborate each other regarding the material details. 16. It is the case of PW.1 that as PW.2 requested A.1 to leave the scene of offence, A.1 fired two shots at PW.2 from the pistol at PW.2 and that PW.2 luckily escaped from the two shots. PW.2, on the other hand, claimed that A.1 fired twice with a view to kill PW.2. The evidence of PW.2 reads as though A.1 attempted to kill PW.2, whereas the grouse of A.1, in fact, was against PW.1. PWs.2 and 3 deposed that PW.2 suffered a bruise in the scuffle with A.1. PW.3 candidly admitted that he did not know what happened prior to the alarm raised by PW.1. At any rate, the evidence of PW.3 is the evidence of a person who reached the scene of offence after the incident proper. Thus, even regarding the attack by A.1 against PW.2, there is no unanimity between PWs.1 to 3. 17. It is the further case of PW.1 that PW.1 noticed as many as five pillets on the floor after the attack and that the pillets, which are MOs.2 to 6 were handed over by PW.1 to police. Curiously, PW.2 deposed that out of MOs.2 to 6 one was not the pillet that was handed over by PW.1 to police. PW.3 spoke about the presence of pillets in his house. He, however, did not state that the pillets were handed over by PW.1 to police. Thus, there is no consistency between the evidence of PWs.1 to 3 regarding MOs.2 to 6 pillets. 18. PW.1 claimed that he got Ex.P.1 complaint scribed by a student whose name he did not know and that he presented Ex.P.1 to police at about 2 p.m. PW.2, on the other hand, deposed that he was not present when Ex.P.1 was scribed by a student. Indeed, PW.3 did not accompany PW.1 to police station. Therefore, it is not necessary for PW.3 to know who scribed Ex.P.1 or how Ex.P.1 was presented. PW.6 corroborated the evidence of PWs.1 and 2 that PW.1 came to the police station along with Ex.P.1 and MOs.2 to 6. As rightly submitted by the learned counsel for the petitioner, Exs.P.1 and P.5 FIR cannot be doubted, as PWs.1, 2 and 6 corroborated each other as the circumstances in which Ex.P.1 was lodged by PW.1 with the police. However, I have already pointed out various inconsistencies and contradictions between the evidence of PWs.1 to 3 relating to the incident proper. 19. Added to it, more or less, no witness amongst PWs.1 to 3 spoke about the complicity of A.2 in the commission of offence. Who is A.2? PWs.1 and 2 claimed that A.2 joined A.1 in consuming alcohol in the school building. Is A.2 a friend of A.1? What is the calling of A.2? Where does A.2 reside? These questions do not find any answer in the evidence let in by the prosecution. From the charge sheet, it can be culled out that while A.1 is a resident of Rajagopalanagar, Guntur town, in which locality the offence occurred, A.2 to A.4 do not belong to the locality of the scene of offence. Needless to speak about A.5 and A.6, who were described to be residents of Gurajala. 20. In this background, what is the interest of A.2 to A.4 to assist A.1 in trespassing into the house of PW.1 during night time with a view to cause harm or with a view to murder PW.1. It is the case of the prosecution that A.1 entered the house of PW.1 armed with firearm. The intention of A.1 obviously was to cause considerable harm to PW.1. Why did A.2 to A.4 nod their approval to the attack by A.1 by joining hands with him? There is no answer. It is not even whispered in the evidence that A.3 and A.4 are close friends or aids of A.1. From the allegation that A.1 and A.2 jointly consumed alcohol, it may, however, be assumed that A.1 and A.2 are friends. This assumption does not hold good, so far as A.3 and A.4 are concerned. Nevertheless the prosecution implicated A.1 to A.4 apart from A.5 and A.6 in the commission of offence. The very participation of A.1 is doubtful in view of various contradictions between the evidence of PWs.1 to 3. The active participation of A.2 to A.4 at that time in the commission of offence is totally not made out by PWs.1 to 3. Mere arrest of A.1 to A.4 by PW.6 does not prove the guilt of any of these accused. 21. As rightly submitted by the defence counsel, there is no evidence or allegation against A.3 and A.4 and perhaps against A.2 as well except that A.3 and A.4 stood outside the house of PW.1 guarding the same, whereas A.2 entered the house along with A.1. 22. It is the case of the prosecution that A.1 used a firearm. Charge sheet was not laid against A.1 for offences under the provisions of the Indian Arms Act and under the Explosive Substances Act. A.1 and A.2 allegedly trespassed into the house of PW.1 during night time with a view to cause harm to PW.2. The offence u/s.453 is lurking house trespass; offence u/s.451 IPC is house trespass with a view to commit an offence punishable with imprisonment. The accused were neither charge sheeted nor charged for any of these offences. The only charge is that A.1 attempted to commit murder punishable u/s.307 IPC, while A.2 to A.6 were guilty of offence u/s.307 r/w. 149 IPC. It would appear that the investigating agency itself had no faith in the case of the prosecution, lest, the prosecution should not have charge sheeted the accused for the offence u/s.307 IPC only. 23. In summation, I may point out that absolutely no case is made out by the prosecution against A.5 and A.6. Similarly, more or less, no case is made out against A.2 to A.4. The only case, if any, is against A.1. Various inconsistencies which attained the magnitude of contradictions in between the evidence of PWs.1 to 3 and the general story of the prosecution have already been brought out. In view of all these contradictions, A.1 shall be entitled to the benefit of doubt. Consequently, all the accused deserve to be acquitted of the respective offences with which they are charged. The learned Additional Assistant Sessions Judge, therefore, was perfectly justified in holding that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. There are no merits in this revision laid by PW.1 who is the de facto complainant. 24. The Criminal Revision Case is, accordingly, dismissed. _______________ K.G. SHANKAR, J Date: .02.2011 Isn