THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1612 OF 2004 ORDER: This appeal at the instance of the State is directed against the acquittal of the accused in S.C.No.62 of 1999 by the Assistant Sessions Judge, Darsi on 22.08.2002. The respondents herein were prosecuted for the offences under Sections 147, 148, 324, 307, 326 read with 109 and read with 149 IPC alleging that the accused and one Polamreddi Veera Nagireddy and Buchepalli Kotireddy and their followers are belongs to rival political groups in the village Boddikurapadu and ill-feelings exists between the two groups and they were waiting for an opportunity to take revenge against the other. One day prior to 24.10.1997 Polamreddi Veera Nagireddy beat one Ammati Venkateswarlu, who belongs to the group of the accused for a silly cause. Having learnt about the same, the accused group grew wild. On 24.10.1997 at about 9.00 A.M when Polamreddi Veera Nagireddy was found going on the motorcycle of Buchepalli Kotireddy at the bus stand centre of the village, all the accused formed into an unlawful assembly armed with deadly weapons like axes, iron rods and pestles with a view to kill Polamreddi Veera Nagirddy, pounced upon him and beat him indiscriminately and caused multiple bleeding injuries. When Buchepalli Kotireddy intervened to rescue him, the accused beat him and caused injuries. Accused Nos.9 and 10 instigated the accused Nos.1 to 8 to kill Polamreddi Veera Nagireddy. Polamreddi Venkateswarlu, Shaik Madar Saheb and Gangavarapu Venkata Subbaiah have witnessed the occurrence. Polamreddi Veera Nagireddy and Buchepalli Kotireddy were shifted to Government Hospital, Darsi. On receipt of hospital intimation, the Head Constable No.1166 of Darsi Police Station visited the hospital and recorded the statement of Polamreddi Veera Nagireddy and sent the same to the Station House Officer, Thallur police station on the point of jurisdiction. On 24.10.1997 at 5.00 P.M. the Head Constable No.338 of Thallur Police Station has registered the FIR in crime No.39 of 1997 under Sections 147, 148, 324, 307 read with 149 IPC. The Sub-Inspector of Police, Thallur Police Station has investigated the case. This is a counter case to the crime No.38 of 1997 under Section 324 read with 34 IPC of Thallur Police Station. As per the wound certificate, Polamreddi Veera Nagireddy sustained grievous injuries and other simple injuries. As per the wound certificate, Buchepalli Kotireddy sustained injuries of simple in nature. After completion of the investigation, charge sheet was filed against the accused. Before commencing the trial, accused Nos.2 and 8 were died and the case against them was abated. The learned Assistant Sessions Judge has framed the charges under Sections 147, 148, 307 read with 149, 326 read with 149, 324 read with 149 were framed against the accused Nos.1, 3 to 7 and 9 to 11, and subsequently additional charges were framed under Sections 326 and 324 IPC against accused No.1, under Section 324 IPC against accused Nos.3 to 7 and 11, under Section 307 read with 149 IPC against accused No.1, 3 to 7 and accused No.11 and under Section 307 read with 109 IPC against accused Nos. 9 and 10. They pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 13 and got marked Exs.P.1 to P.12 and M.Os.1 to 3. On behalf of the accused, no oral evidence was adduced, but Ex.D.1 was marked. The learned Assistant Sessions Judge by taking into consideration of the said oral and documentary evidence found all the accused not guilty for the above said charges and thereby acquitted the accused. Aggrieved by the said acquittal, the State has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the above said charges against the accused beyond reasonable doubt? P O I N T: The Additional Public Prosecutor has pleaded that the evidence of P.Ws.1 to 3 is sufficient to establish the charges framed against the accused and the evidence of P.Ws.1 to 2 is supported by the evidence of P.W.3 independent witness and no prejudice was caused to the accused by trying the counter case separately, thereby the accused are liable for punishment for the above said charges. The Assistant Sessions Judge mainly basing on the following observations recorded the acquittal of the accused. i) There is a delay in sending the FIR to the Court and it is a fatal to the case of the prosecution. ii) The evidence of P.Ws.1 and 2, who are partisan witnesses, is not corroborated by any other independent witnesses. iii) The injuries sustained by accused No.1 were not explained by the prosecution. iv) Prejudice was caused to the accused by trying the counter case filed against P.Ws.1 to 3 separately. v) When the case of the prosecution is that all the 11 accused attacked P.W.1, his specifying individual overt acts creates a doubt with regard to the occurrence of the incident. The FIR was registered by P.W.10 on 24.10.1997 at 5.00 P.M., but as per the endorsement made on the said FIR, it was received by the Court on 25.10.1997 at 11.10 A.M. P.W.10 has admitted that the distance between the Thallur village and Darsi village is about 25 Kms and no explanation was forthcoming with regard to the delay in sending the FIR to the Court at Darsi. Moreover, the investigating officer was present at the scene of offence even before issuing the FIR in this case in connection with the investigation of the counter case in crime No.38 of 1997. When the present case is a counter case to the crime No.38 of 1997 and there is a delay of 17 hours in sending the FIR to the Court creates a doubt with regard to registering of the crime at the time mentioned in the FIR and there is every possibility of registering the said crime after due consultations. Therefore, the delay in sending the FIR to the Court is fatal to the case of the prosecution. According to the prosecution, P.Ws.1 and 2 are the injured persons, P.Ws.3 to 5 are the independent eyewitnesses to the incident. The evidence of P.W.1 is supported by the evidence of P.Ws.2 and 3, but whereas the independent witnesses P.Ws.4 and 5 have not corroborated the evidence of P.Ws.1 and 2. According to the prosecution when P.Ws.1 and 2 were going on the motorcycle near the bus stand of the Boddikukrapadu village, all the accused pounced upon P.W.1 and beat him indiscriminately and when P.W.2 intervened to rescue P.W.1, all the accused beat him also, but whereas P.W.1 categorically stated about the individual overt acts of the accused and weapons used by them and also specified the part of his body, on which they beat him. Moreover, P.Ws.1 to 3 have admitted that they all the three are the accused in counter case, in which the accused No.1 was the injured person and they have also admitted that they all the three and others are the accused in a murder case where accused No.2 was murdered subsequent to the commission of offence in this case. Therefore, as rightly observed by the learned Assistant Sessions Judge that P.Ws.1 to 3 are partisan witnesses and it is not safe to rely upon the evidence of partisan witnesses without corroboration. As already observed above, the evidence of P.Ws.1 to 3 was not corroborated by the independent witnesses P.Ws.4 and 5, therefore, it is not safe to rely upon the evidence of P.Ws.1 to 3 to record conviction. Moreover, as already observed above, P.W.1 has categorically stated about the individual overt acts, weapons used and also specified the parts on his body, on which the accused beat him. When the accused have pounced upon him as a group, it is not possible for him to specify the individual overt acts of the accused persons and also the weapons used by them. Therefore, the learned Assistant Sessions Judge has rightly doubted the veracity of the evidence of P.Ws.1 to 3 by relying upon a decision rendered in “Baldeo Singh v. State of Bihar (AIR 1972 Supreme Court 464)”. Admittedly this case is a counter case to the case in crime No.38 of 1997 and the present alleged incident has taken place as a counter blast for the incident occurred in crime No.38 of 1997. Moreover, both the incidents have taken place between two rival groups in the village. The case in crime No.38 of 1997 was tried by the Judicial First Class Magistrate, Darsi and the accused (P.Ws.1 to 3) were acquitted therein. In a decision rendered in “Sudheer v. State of Madhya Pradesh (2001 (2) ALT (Criminal) 79 (Supreme Court)”, the Apex Court has observed that the practical reasons for adopting a procedure that such cross cases shall be tried by the same Court, can be summarized thus (1) it staves off the danger of an accused being convicted before his whole case is before the Court, (2) it deters conflicting judgments being delivered upon similar facts, and (3) in reality the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident. Therefore, in view of the above said decision of the Apex Court, both the cases and counter cases are to be tried by one and the same Court. But in the present case, counter case to this case was tried by the Magistrate and the accused therein, who are P.Ws.1 to 3 were acquitted. In the said alleged counter-case, accused No.1 herein was sustained injuries and the same was admitted by P.Ws.1 to 3, but the prosecution could not explain the injuries sustained by him. Moreover, it is not the case of the prosecution that the accused herein are the aggressors. Even though the prosecution could able to establish the injuries sustained by P.Ws.1 and 2 from the evidence of P.W.9, but in view of the above findings recorded by the learned Assistant Sessions Judge, he has justified in recording the acquittal of the accused and the said finding does not warrant any interference by this Court in this appeal. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 18th November, 2011 Ksp