HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.552 OF 2007 Dated:07-10-2010 BETWEEN: Gummalla Nageswara Rao & Another …Appellants AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.552 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellants-A.1 and A.2 in S.C.No.51 of 2005 on the file of Court of VI Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry were put on trial on the charge of murder of Thiragareddy Chinna Rao. By judgment, dated 02.04.2007, the appellants-A.1 and A.2 were found guilty for the offence under Section 302 r/w 34 IPC and were sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- each, in default, to undergo rigorous imprisonment for three months. 2. The substance of the charge against the appellants-accused is that on 03.01.2004 at about 6.00 p.m. at Indira Society quarry at Yeleswaram Village, they committed the murder by intentionally causing the death of one Thiragareddy Chinna Rao (hereinafter referred to as ‘deceased’) by beating with black sharp edged quarry stone. 3. The case of the prosecution, in brief, is as follows: The accused and the deceased were residents of Yeleswaram Village. P.W.1 is the son of the deceased; P.W.5 is the wife of A.1; and P.W.3 is the relative of the deceased. The deceased was working as a lorry driver and P.W.2 was working as a cleaner of the said lorry. On the date of the incident i.e. on 03.01.2004, the deceased went to the quarry on duty with the lorry for loading quarry stones as usual at 8.00 a.m. On the said date, in the intervening night at about 2.00 a.m. P.W.2 went to the house of the deceased and informed that A.1 and A.2 killed the deceased in Indira Society quarry at abut 8.00 p.m. On receipt of the information from P.W.2, P.Ws.1, 3 and some others rushed to the scene of offence. As it was dark, they could not trace out the dead body of the deceased immediately and after some time with the help of torchlight they could trace out the dead body in the said quarry. They found the deceased in a pool of blood. About 10 year back, A.1 beat the deceased suspecting that the deceased got illicit intimacy with P.W.5. Thereafter the deceased reported the matter to the elders of the village- P.W.8 and P.W.4. On that, A.1 bore grudge against the deceased and on account of that A.1 and A.2 killed the deceased. P.Ws.10 and 11 came to P.W.1 and informed that A.1 proclaimed on the date of incident that he would break the head of the deceased like a watermelon at any cost. On the next day morning i.e. on 4.1.2004 at about 5.00 a.m., P.W.1 went to the police station and lodged a report under Ex.P.1, on the basis of which, P.W.15-Sub-Inspector of Police registered a case in Crime No.1 of 2004 under Section 302 IPC and issued Ex.P.28-F.I.R. P.W.16-Circle Inspector of Police, Jaggampeta reached the scene of offence at 7.30 a.m., observed the scene of offence, prepared the rough sketch of scene of offence under Ex.P.29. He seized the material objects from the scene of offence, held inquest over the dead body of the deceased in the presence of mediators. During the inquest, he examined P.Ws.1,2,7 and others. Ex.P.10 is the inquest report. Later, P.W.16 sent the dead body for post-mortem examination. P.W.14-Civil Assistant Surgeon, Community Health Centre, Prathipadu conducted autopsy over the dead body of the deceased and opined that the cause of death was due to haemorrhage due to shock caused by wound described under injury No.5. He issued Ex.P.27-post mortem certificate. On 7.1.2004 at 8.30 a.m. P.W.16 arrested A.1 at his house in the presence of P.W.12 and another. Basing on the confession of A.1, P.W.16 seized the while bloodstained shirt of A.1. On 12.1.2004 at 3.00 p.m., P.W.16 arrested A.2 at his residence in the presence of P.W.12 and another and recorded his confessional statement. After receipt of relevant reports and completion of investigation, P.W.16 laid the charge sheet against the accused. 4. When the charge was read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charge, the prosecution examined P.Ws.1 to 16 and got marked Exs.P.1 to P.32 besides the case properties-M.Os.1 and 2. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence, but marked portions in the 161 Cr.P.C. statements of P.W.9 and 7 as Ex.D.1 and D.2. 7. The Trial Court on appreciation of oral and documentary evidence on record and mainly relying on the evidence of P.W.9, who stated that he witnessed A.1 and A.2 beating the deceased with quarry stones and causing injuries to the extent of causing his death, which is also corroborated with the medical evidence, found the accused guilty for the offence under Section 302 r/w 34 IPC and accordingly sentenced them to imprisonment as aforementioned. 8. Smt. A.Gayathri Reddy, learned counsel representing the appellants- accused contended that P.W.9 is not an eyewitness to the occurrence and that he was projected as an eyewitness to the incident by the prosecution. P.W.9 stated that the incident had happened at 8.00 p.m., but he has not reported the incident to the police immediately, but he went to the police station on the next day morning along with P.Ws.6,7, L.W.15 and 16, where his statement was recorded and that he admitted that except to the quarry owner-L.W.19, he did not inform the said incident to anybody, which itself shows that he is not eyewitness to the incident. P.W.1 is hearsay witness as he was informed by P.W.2 about the incident. It is the evidence of P.W.9 that he went to the police station along with others at 8.00 a.m. and there his statement was recorded by P.W.15. But P.W.15 denied the presence of P.Ws.6,7,9 and L.Ws.15 and 16 at 8.00 a.m. in the police station, and therefore, P.W.9 is not a reliable witness. If the evidence of P.W.9 is eschewed from consideration, there is no other evidence to connect the accused with the commission of offence since P.Ws.2,4,5,8, and 11 were declared hostile by the prosecution as they have not supported its case. It is contended that the evidence of P.W.7 cannot be believed since he admitted in the cross-examination that on the basis of voice identification, he recognized A.1. In view of the above, the learned counsel prays this Court to set aside the convictions and sentences recorded by the learned Sessions Judge. 9. We have heard the learned Additional Public Prosecutor and gone through the entire evidence on record and the findings recorded by the lower Court. 10. The point that arises for consideration in this appeal is, whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt? 11. P.W.1 is the son of the deceased who set the criminal into motion by lodging Ex.P.1-report. Admittedly, he is not an eyewitness to the incident, but on the information passed on by P.W.2, he along with family members rushed to the scene of offence and traced out the dead body of the deceased in a pool of blood. With regard to the motive, he stated that ten years back, A.1 beat the deceased suspecting that he got illicit intimacy with his (A.1) wife and that when the said incident was informed to the village elders-P.W.8 and 4, the accused bore grudge against the deceased. He stated that P.Ws.10 and 11 came to him and informed that A.1 proclaimed on the date of incident that he would break the head of the deceased like a watermelon at any cost. P.W.2, who is eyewitness to the incident, deposed that he was working as cleaner to the lorry, to which, the deceased was driver. On the date of incident, the said lorry was engaged for the purpose of loading quarry stones at Indira Society quarry. The lorry was stationed in the quarry of Indira Society for the purpose of loading the quarry stones. At that time, he went outside the quarry for getting a rench. Meanwhile, he came to know that some dispute was going on near the stationed lorry in between the deceased and some other persons. On that, he rushed to the spot and found some dispute was going on at a distance from the lorry. He did not observe the persons among whom the said dispute was going on, except observing the involvement of the deceased in the said dispute. On observing the same, he rushed to the house of the deceased and informed them about the incident. He was declared hostile and was cross-examined by the Public Prosecutor. In the cross-examination, he stated that he does not know the accused and he also did not identify A.1 and A.2 in the Court hall. Therefore, his evidence is of no useful to the case of the prosecution. P.W.7, a coolie in quarry deposed that he got acquaintance with A.1 and A.2, but he does not know their respective names. On the date of incident, the deceased came to the quarry with his lorry for the purpose of loading quarry stones. After filling the truck upto 4 yards, they went to the deceased who slept in the cabin for the purpose of measuring the load. Then the deceased asked them to go away stating that he would come later. Some time thereafter, they heard the cries from the bushes situated at a distance about one furlong from the lorry. Then himself and other coolies rushed to the bushes and witnessed two persons beating of deceased with quarry stones. He could not notice them because of dark but he heard their voices. Then he asked them as to why they were beating the deceased, for which, they proclaimed that they would kill him too with quarry stones if he comes forward. This witness stated in the court that A.1 and A.2 came to his house on two occasions and threatened the inmates of the house with dire consequences stating that he (P.W.7) should not come to the Court for deposing his evidence. At that juncture, the learned Sessions Judge adopted an unusual procedure by calling A.1 and A.2 to know whether they went to the house of the witness-P.W.7 for the purpose of threatening and even though the defence counsel represented that he would advice A.1 and A.2 not to resort such course of action with regard to any other witness, the learned Sessions Judge directed the counsel for the defence to give such an undertaking in writing from A.1 and A.2 and also asked A.1 and A.2 to pay an amount of Rs.1,000/- to the witness as a fine by next day or else A.1 and A.2 would be sent to Central Jail and they will be in the custody of Central Jail till the completion of the trial. The same is recorded in the evidence. Such a practice is unknown to the criminal trial while recording the evidence. Be that as it may, P.W.7 in the cross-examination admitted that on the basis of voice identification, he recognized A.1. He also admitted that he did not state before the police that he recognized A.1 basing on his voice. He did not make any efforts to inform the incident to the family members of the deceased. He also admitted that he did not state before the police that he heard the voices of the accused and asked them why they were beating the deceased for which they proclaimed that they will kill him with quarry stones if he comes forward. 12. P.W.9 is a cooli in the quarry. He deposed that while he was loading the lorry with quarry stones, the deceased slept in the cabin. Some time thereafter, he heard the cries from a place at a distance of one furlong from the lorry. Then he rushed to that place and noticed the persons, sitting in the court hall (pointing out A.1 and A.2), were beating the deceased. On seeing him, A.1 and A.2 proclaimed that they would pelt stones against him if he comes forward. Then he rushed back and tried to contact police through a telephone situated nearby the quarry but he could not contact the police. Then he returned back to the scene of offence and found the deceased dead. In the cross-examination he admitted that he had no prior acquaintance with the deceased by the time of incident. On the next day morning, at about 8.00 a.m., himself and P.Ws.6,7, L.Ws.15 and 16 went to Yeleswaram Police Station and there, the Sub-Inspector recorded their respective statements, which fact has not been stated either by P.W.7 or by P.W.15. On the other hand, P.W.15-Sub-Inspector of police, who registered the crime at 5.30 a.m. on receipt of report under Ex.P.1, denied the suggestion that P.Ws.6,7,9, L.W.15 and 16 were present before him at about 8.00 a.m. on 4.1.2004 in the police station and he recorded their respective statements. Therefore, the evidence of P.W.9 is not trustworthy and cannot be relied upon. With regard to the medical evidence, P.W.14-doctor who conducted the post- mortem examination, found 15 external injuries on the dead body of the deceased and issued Ex.P.27 post-mortem certificate opining the cause of death due to haemorrhage and shock caused by wound described under injury No.5 i.e. ‘a penetrating lacerated wound filled with dried blood clot present, on left side of lower part of neck just above junction of medium 1/3rd and lateral 2/3 of left cavecal gaping in tissue is approximately conical in shape about 1 cm in depth and skin opening is about 1 cm x 1 cm in size. Wound directed anteroposteriorly with slight inclination toward mid line’. In the cross-examination he admitted that if injury No.5 is caused by any sharp edged stone there will be irregular and inverted edges, but he did not find any irregular or inverted edges in injury No.5. He further admitted that there will be bloodstains on the stone if it causes the injury like injury No.5, but he did not observe any bloodstains on the sharp edged stone shown to him. Thus the medical evidence is not supporting the case of the prosecution. Further the prosecution has also not established the motive for the accused for their proclaiming before P.Ws.10 and 11 in the morning on 3.1.2004 that they will break the head of the deceased like a watermelon at any cost. The other witnesses i.e. P.Ws.2,4,5,6,8,10 and 11 were declared hostile as they have not supported the case of the prosecution. Further P.W.2, who is projected as an eyewitness has not spoken about the presence of P.W.9 at the scene of offence and as already observed the evidence of P.W.7 cannot be relied upon since he admitted that he recognized the accused by their voices. There remains the only evidence of P.W.9. As already observed, the evidence of P.W.9 is wholly not reliable as his evidence has not been corroborated by the evidence of P.W.15 about his presence in the police station on 4.1.2004 at 8.00 a.m. In these circumstances, it is unsafe to rely upon the evidence of P.W.9 to convict the accused for the offence under Section 302 r/w 34 IPC and therefore, the convictions and sentences imposed on the accused by the learned Sessions Judge cannot be sustained. 13. In the result, the appeal is allowed. The convictions and sentences recorded against the appellants-accused 1 and 2 for the offence punishable under Section 302 r/w 34 IPC, by VI Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, vide judgment, dated 02-04-2007, in Sessions Case No.51 of 2005, are set aside and they are acquitted of the said charge. They shall be set at liberty forthwith if not required in any other crime. The fine amount, if any, paid by the appellants-accused 1 and 2 shall be refunded to them. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 07, 2010 Tsr.