THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1757 of 2006 Dated:25.02.2010 Between: Konduru Venkateswarlu, And others. …Appellants And State of Andhra Pradesh, Rep.by its Public Prosecutor. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.1757 of 2006 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) This appeal is against conviction and sentence imposed by the Court of the III Additional Sessions Judge (Fast Track Court-II), Khammam, by accused Nos.1 to 3. Be it noted, accused Nos.1 and 2 are brothers of accused No.3. They were indicted for a charge punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC), for the murder of one Kammampati Venkateswarlu @ Bodaiah, who is none other than the husband of Pullamma. Their plea is one of denial. After trial the learned Sessions Judge who conducted trial believed the prosecution case that accused Nos.1 to 3 have a common intention to cause death of Bodaiah and that in prosecution of such common intention, all of them attacked with sticks causing fatal injuries resulting in death of deceased. Accordingly, while convicting, the learned Sessions Judge imposed imprisonment for life. In this appeal after giving our anxious consideration on perusal of the entire record available, we are convinced that the prosecution failed to prove its case against accused No.3. However, for the reasons in the judgment to follow we confirm the conviction and sentence against accused Nos.1 and 2. The case of the prosecution is as follows. Accused No.3 and Bodaiah were married fifteen years prior to the date of crime. The deceased was resident of Mulakalapalli and accused Nos.1 and 2 were residents of Kamalapuram. Be it noted Kamalapuram, Mulakalapalli, Madaram and Mookamamidi had formed one cluster for the purpose of Panchayat/revenue administration. Be it also noted that accused No.3 who was residing at Mulakalapalli was staying with accused Nos.1 and 2 at the relevant time. It is further case of the prosecution that at about 8:30 or 9:00 pm on 02.03.2005 the deceased Bodaiah beat his wife. Accused No.3 fell unconscious. Accused Nos.1 to 3 beat the deceased due to which he died. The incident was witnessed by P.Ws.3 and 4, who are neighbours of accused Nos.1 and 2. P.W.3 went to the house of accused, found the dead body and informed the same to the Village Secretary of the group of Villages at 7:00 am on 03.03.2005. The Village Secretary (P.W.1) gave report – Ex.P1 to P.W.12, who registered First Information Report (FIR) in Crime No.17 of 2005 under Section 302 read with Section 34 of IPC. After registering the same, being Ex.P.18, he sent the information to all concerned. P.W.12 visited the scene of offence, prepared scene of observation Ex.P.13, sketch Ex.P14 and seized material objects – M.Os.3 to 5. On the same day P.W.12 held inquest over the dead body under Ex.P12 – inquest report. The post mortem was conducted by P.W.11 at Government Hospital, Paloncha, and gave PME report – Ex.P17. In his report - Ex.P17 he enumerated the following injuries. i) Dried clotted blood from the nose; ii) Bleeding from mouth; iii) Bleeding from right ear; iv) Fracture cervical spinal card blunt object; v) Fracture lower jaw at angle blunt object and right maxilla; vi) Fracture to sternal bone, middle 1/3rd blunt object; vii) Fracture left ribs starting from 3 to 7 with ruptured lung; viii) Contusion mark right coastal margin with rupture liver inside; ix) Multiple contusion marks, (4-6) measuring about 10X2 cms over back and x) Multiple contusion over both right and left thighs. He opined that the death is due to cardio-respiratory arrest due to poly trauma and Neurogenic shock. P.W.13 took up further investigation on 18.03.2005 and after completing the investigation filed charge sheet. The Court of Additional Judicial First Class Magistrate, Kothagudem, after conducting enquiry in P.R.C.No.88 of 2005 committed the case to Sessions Judge, Khammam, who made over the case to II Additional Sessions Judge. After that the learned trial Judge framed two charges, which read as under. Charge No.1:- That A1 and A2 of you, on or about 02.03.2005 evening at Kamalapuram committed murder by intentionally causing the death of Khammampati Venkateswarlu @ Bodaiah by beating him with sticks on his head, back and chest and thereby committed an offence punishable U/s.302 I.P.C. and within my cognizance. Charge No.2:- That A3 of you, in the same transaction at the same time and place, as mentioned in Charge No.1, along with A1 and A2 committed a criminal Act namely instigated and abetted A1 and A2 in furtherance of the common intention of all of you to do away the life of Kammampati Venkateswarlu @ Bodaiah and thereby committed an offence punishable U/s.302 R/w.34 I.P.C. and within my cognizance. The prosecution examined thirteen witnesses and marked Exs.P1 to P19 and M.Os.1 to 5. The learned Sessions Judge after considering the same disbelieved the version of the defence that the presence of accused No.3 is not proved and that there was a sudden provocation for accused Nos.1 and 2 due to the injuries inflicted by the deceased on accused No.3 (sister of accused Nos.1 and 2), and therefore, the offence of murder is not made out. Accordingly, as noticed supra, the accused were convicted and sentenced under Section 302 read with Section 34 of IPC. We have heard the learned Senior Counsel and the learned Public Prosecutor, who reiterated their position before us as it was before the Court of Sessions. We have been invited to the evidence of P.Ws.1 to 5 and 11 and Ex.P1 – report, given by P.W.1. The death of Bodaiah occurred on 03.03.2005 at 9:30 am. Therefore, there is a delay of about 12 hours in giving the report and registration of First Information Report (FIR) – Ex.P18. Secondly, in Ex.P1 it was stated by P.W.1 that P.W.6 informed him that accused Nos.1 and 2 beat the deceased when the deceased beat accused No.3 who fell unconscious. However, after investigation the prosecution also alleged that accused Nos.1 to 3 beat the deceased. The omission to mention this at the earliest point of time at the time of giving Ex.P1 and registration of FIR – Ex.P18, is pointed out by the learned Senior Counsel as evidence of implicating accused No.3 in the offence. Whether Ex.P1 and contents thereof are relevant and admissible, and if so to what extent? Such a question was considered i n Ram Kumar Pande v The State of Madhya Pradesh[1]. While reiterating that FIR can be used only to corroborate or contradict maker of it, the Supreme Court observed as under. No doubt, an F.I.R. is a previous statement, which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23.3.1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In this case P.W.1 gave report, which is not entirely based on his knowledge. As we presently mention P.W.6 informed him in the morning on 03.03.2005, then he went and saw the dead body of Bodaiah and from there he went to P.W.12. Therefore, the contents of his report that P.W.6 informed about the deceased beating accused No.3, and thereafter, accused Nos.1 and 2 attacking the deceased are certainly not relevant and such a statement was not exactly made by P.W.1 himself. His information was based on the information given to him by P.W.6. In any event, from the evidence of P.W.1 it is clear that no effort was made by the defence in this direction. P.W.1 deposed only to an extent of being informed by P.W.6, going to the scene of crime, making some enquires and then lodging Ex.P1 – report. We may, however, hasten to add that the piece of information contained in Ex.P1 cannot be totally discarded having regard to the gravamen of charge against accused No.3. Indisputably, it is the case of the prosecution that the deceased beat accused No.3. She fell down unconscious. This resulted in a wrist fight between accused Nos.1 and 2 and the deceased, which took a violent turn on the fateful night. From this we may draw two alternate inferences. First, when the alleged incident occurred, accused No.3 was unconscious at the scene of offence or as is now contended by the learned Senior Counsel, presence of accused No.3 when accused Nos.1 and 2 were allegedly beating the deceased is itself doubtful. P.Ws.3 and 4 are eyewitnesses. We have perused their evidence and closely scrutinized the same. Except on the question of presence of accused No.3 at the scene of offence the evidence of P.Ws.3 and 4 insofar as they speak about accused Nos.1 and 2 beating the deceased with sticks is consistent and having regard to the fact that both of them were examined after lapse of about a year and half the minor variations can be ignored. Further the house of P.W.3 is situated at a distance of four yards from the house of accused Nos.1 and 2, whereas the house of P.W.3 is in between the house of accused Nos.1 and 2 and the house of P.W.4. Of course the prosecution did not explain properly as to why P.W.3 and P.W.4 kept silent from the night of 02.03.2005 till 8:00 am on 03.03.2005. This itself does not falsify the prosecution case that P.Ws.3 and 4 saw when the deceased was being attacked. P.W.4 does not even refer to presence of accused No.3, whereas P.W.3 deposed that when accused Nos.1 and 2 were beating the deceased accused No.3 was standing by the side of her husband. Either way we are convinced that on the basis of the evidence on record accused No.3 cannot be indicted for the offence as charged. The prosecution theory of common intention among accused Nos.1 to 3 to commit criminal act does not exist especially when the presence of accused No.3 at the scene of offence or the involvement of accused No.3 is doubtful. Insofar as the overt acts attributed to accused Nos.1 and 2 who used M.Os.1 and 2 to beat the deceased is concerned, the case is supported by P.Ws.3 and 4 as well as medical evidence. As noticed supra except to the extent we have pointed out there is nothing to impeach P.Ws.3 and 4, nor any effort was made by the defence to disbelieve the version of both the witnesses. As noticed supra, injuries (i) to (iv) can be usually caused by severe blows to the head and injuries (v) to (ix) on the other parts of the body are serious enough to cause trauma. Accused Nos.1 and 2 went to beat the unarmed and helpless son-in-law of the family and these do not support any theory of grave and sudden provocation. There are no compelling reasons nor any doubt is created to exonerate accused Nos.1 and 2. Accordingly for the above reasons, we set aside the conviction and sentence imposed on accused No.3. We acquit accused No.3, and direct her release forthwith. The Criminal Appeal of accused Nos.1 and 2 is dismissed confirming the conviction and sentence imposed on them by the learned III Additional Sessions Judge (Fast Track Court – II), Khammam, in S.C.No.7 of 2006, dated 30.10.2006. The Criminal Appeal is accordingly partly allowed acquitting accused No.3 only. _______________ (V.V.S.RAO, J) _____________________________ (SAMUDRALA GOVINDARAJULU, J) 25.02.2010 vs [1] 1975 Crl.L.J 870 = AIR 1975 SC 1026