IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CRIMINAL APPEAL No.565 OF 2008 BETWEEN: Nukala Gurulingam S/o. Yelamanda and Others …. Appellants / Accused Nos.2 to 10 AND State of Andhra Pradesh, rep.by Public Prosecutor, High Court of A.P., Hyderabad. …. Respondent/complainant THE HON’BLE SRI JUSTICE D.S.R. VARMA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR CRIMINAL APPEAL No.565 OF 2008 JUDGMENT: (per the Hon’ble Sri Justice Sanjay Kumar) This appeal arises out of the judgment dated 09-04-2008 in Sessions Case No.58 of 2006 on the file of the Sessions Judge, Guntur. By the said judgment, the Sessions Court found all the accused Nos.1 to 10 (A-1 to A-10) guilty of the charges under Sections 148 and 302 read with 149 of the Indian Penal Code (for short ‘IPC’). A-1 having expired during the pendency of the case, the case stood abated against him. A-2 to A-10 were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for three (3) months each, in so far as the charge under Section 148 IPC is concerned. They were also sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for three (3) months, in so far as the charge under Section 302 read with Section 149 IPC is concerned. 2. A-2 to A-10 are in appeal. 3. The substance of the charge against the accused was that on 29-05-2004 at about 8-00 AM, in front of the Sundry shop of Kotha Narsimha Rao (PW-5) in Morjampadu Village, the accused formed themselves into an unlawful assembly and in furtherance of their common object caused the death of Maddu Sivaramaiah by attacking him with deadly weapons. (i) PW.2, Maddu Venkateswarlu, is the brother and PW-8, Maddu Saraswathi, is the wife of the deceased. The deceased and the accused were residents of Morjampadu. One group who were the supporters of the TDP was led by A-1 and the other group who were supporters of Congress-I was led by PW.3, Katteboyina Narasimha Rao. Panchayat elections were held in 2001 and with the support of the deceased, PW.3 contested for the Sarpanch post against A-1 and won the election. Therefore, the accused bore a grudge against the deceased. (ii) As per Ex.P-1 Report, on 29-05-2004 at about 7-30 AM, PWs.1 and 3 were near the shop of PW.5 and saw the deceased coming towards them. Then, the accused came there and A-1 caught hold of the neck of the deceased and stabbed him on his abdomen. A- 2 and A-3 poked him on his stomach, A-4 beat him on the right side of the chest, A-5 and A-9 stabbed him on his abdomen, A-6 to A-8 stabbed him on his back. Then A-10 picked up a boulder and threw it on the head of the deceased. After the incident, the deceased was shifted to the hospital at Piduguralla where he was declared dead. Then, PW.1 lodged the report (Ex.P-1) with the Police at Machavaram. On the same day at about 12-30 PM, on receiving Ex.P-1 report from PW.1, PW.13, the then Head Constable, Machavaram Police Station registered a case in Crime No.60 of 2004 and issued FIR (Ex.P-10). PW.14, the then Circle Inspector of Police, took up further investigation and visited the scene of the offence and prepared the observation report (Ex.P-6) in the presence of PWs.10 and 11. Ex.P-11 is the rough sketch of the scene of offence. Thereafter, he visited the Government Hospital, Gurazala and got the dead body photographed through PW.9 and held an inquest over the dead body in the presence of PWs.10 and 11, under Ex.P-7 (Inquest Report) and examined PWs.1 to 8 and recorded their statements. Then, PW.16, the then Medical Officer, on requisition, held an autopsy over the dead body of the deceased on the same day and opined that the cause of death was due to multiple injuries. He issued Ex.P-14 postmortem report. (iv) On 02-06-2004, PW.15, the Sub Inspector of Police, Machavaram, arrested A-1 to A-10 in the presence of PW.12 and in the course of their interrogation and in pursuance of their statements (Ex.P-8), they led the police to Ganneru Vagu of Govindapuram where A-1 brought a knife (MO.6) from the bushes, which was seized under Ex.P-9 Panchanama. After receiving the relevant documents and on completion of investigation, PW.14 filed the charge sheet. 4. In support of its case, the prosecution examined PWs.1 to 16 and got marked Exs.P-1 to P-14. On behalf of the accused, Exs.D-1 to D-6 were marked and no oral evidence was adduced. 5. PWs.5, 6 and 7 did not support the case of the prosecution and were declared hostile. 6. The Sessions Court having accepted the case of the prosecution, convicted the accused and sentenced them as aforesaid. 7. Sri C. Padmanabha Reddy, learned Senior Counsel appearing for the appellants / accused, raised two substantial grounds to attack the judgment of the Sessions Court. The learned senior counsel pointed out that the offence is alleged to have been committed in the morning hours on 29-05-2004 i.e. between 6-30 and 8-00 AM, whereas the first information report (Ex.P-1) was registered at Machavaram Police Station only at 12-30 PM. The FIR was dispatched to the Magistrate with further delay at about 5-30 PM on 29- 05-2004. The learned senior counsel contended that there was no explanation forthcoming to explain the delay in the registration and dispatch of the FIR and in such circumstances, the delay would be fatal to the prosecution’s case, as there was ample time for embellishment of the FIR. The learned senior counsel also pointed out that this Court would have to keep in mind that this was a faction clash between supporters of two political parties and therefore, the delay in lodging of the FIR would be fatal to the case of the prosecution. 8. Secondly, the learned senior counsel pointed out that the evidence of the eyewitnesses, i.e. PWs.1, 2 and 3 could not be believed in view of the discrepancies in their versions with regard to the sequence of events after the incident on the morning of 29-05- 2004. The learned senior counsel also pointed out that there was no consistency in the depositions of the eyewitnesses with regard to the overt acts attributed to the individual accused. He pointed out that PW.1, who lodged the FIR (Ex.P-1), did not attribute any overt acts to A-3, A-4, A-5 and A-9 while PW.2, the brother of the deceased, who claims to be an eyewitness, spoke of overt acts being committed by all the 10 accused. PW-3, another eyewitness, does not attribute any overt act to A-6, while PW-4, another eyewitness, speaks of involvement of all the 10 accused. The learned senior counsel pointed out that A-1 was himself murdered, after he was enlarged on bail in this case, and further pointed out that all the eyewitnesses (PWs.1 to 4) were arrayed as the accused in the said murder case. 9. The learned senior counsel placed reliance on another aspect for doubting the veracity of Ex.P-1. He pointed out that PW-1 stated in his evidence as follows: “…. We directly went to the hospital of Dr.Anji Reddy, Piduguralla. Even after Dr.Anji Reddy examined and pronounced the deceased dead we were in Piduguralla for more than 2 to 3 hours. We were in front of Piduguralla Police Station. The Ex.P-1 report was drafted in Machavaram police station by the police to my dictation. I did not present a report by writing it myself since I am an illiterate. Police told me that they have drafted it in accordance with my instructions alone. Between 1 and 2 p.m. we reached Machavaram Police station. Police came along with me to the scene of offence. From Machavaram Police Station we have taken the dead body of the deceased to Govt. Hospital, Gurazala, and reached that hospital between 3 and 4 p.m. In Piduguralla we met L.W.14 K. Venkateswarlu, MPP, Machavaram. When we met him Advocate Sri Reddy Sambasivarao was also present. We informed both of them as to what all (we sic) have done. As per my instructions, they have prepared a report to the police. I have handed over that report also to police of Machavaram while giving Ex.P-1 contents.” (emphasis added) 10. In the light of the above evidence, the learned senior counsel contended that it is very much possible that PW-1 obtained instructions as to how to go about the matter, from the leader LW.14 (PW-11) and the Advocate, Sri Reddy Sambasivarao. Further PW-1 also spoke of the fact that another report had been prepared by PW-11 (LW.14) and the Advocate, which he handed over to the Police at Machavaram Police Station. The learned senior counsel pointed out that this report, which is said to be handed over to the Machavaram police, did not see the light of the day and it is doubtful as to whether Ex.P-1 was prepared on the basis of the alleged statement made by PW-1 to the Machavaram police or it was prepared on the basis of this so called report prepared by PW-11 and the Advocate. 11. In the light of the above facts, it is the contention of Sri C. Padmanabha Reddy, learned senior counsel, that the FIR itself was fraught with suspicious circumstances and the presence of the accused at the scene of the offence, basing on such a report, could not be accepted by this Court. The learned counsel submitted that there was every possibility of the embellishment of the FIR and the implication of innocent persons, who were not actually present at the scene of the offence. The learned counsel contended that, keeping in mind the fact that this was a faction murder, the normal tendency of any member of the faction to which the deceased belonged, would be to implicate all possible enemies belonging to the rival faction. Therefore, the FIR (Ex.P-1) could not be viewed even as a corroborative piece of evidence and hence, was fatal to the prosecution’s case. The learned senior counsel placed reliance on the judgments of the Supreme Court i n RAJEEVAN AND ANOTHER v. STATE OF KERALA[1] and DILAWAR SINGH v. STATE OF DELHI[2] in support of his contentions. 12. A reading of the FIR (Ex.P-1) shows that PW.1 was very precise in the narration of the events alleged to have occurred on the morning of 29-05-2004, which resulted in the death of the deceased. The FIR is very detailed in its particulars, with regard to the names of the persons and the overt acts attributed to each of them. However, in his deposition, PW-1 did not implicate A-3, A-4, A-5 and A-9 by attributing any overt acts to them, though his version as per Ex.P-1 is different. This, by itself, would have been fatal, but taking into account the fact that there was a delay in the registration of the FIR, the matter assumes further significance. Admittedly, Ex.P-1 was registered with the Machavaram Police Station on 29-05-2004 only at 12-30 PM, whereas the incident is said to have occurred in the morning between 6-00 and 8-00 AM, as per the different versions of the prosecution witnesses. While PW-1 tried to explain this delay by stating that the deceased was taken to Piduguralla in the first instance where he was examined and pronounced dead and thereafter, they spent 2 to 3 hours at Piduguralla in front of the Police Station and then proceeded to Machavaram. PW-2 came forward with a different version, stating that they had taken the body of the deceased to Piduguralla by 9-30 AM and after he was examined and declared dead, they stayed at Piduguralla Police Station for about one hour. PW-3 gave another version altogether, stating that from Piduguralla hospital where the deceased was examined, they went directly to Machavaram and that they reached Machavaram Police Station around 11-00 or 11-30 AM. PW-10, an Inquest pancha, on the other hand, gave a completely different version, stating that the dead body was kept in front of the Piduguralla Police Station and from there, it was taken to Gurazala. 13. In the light of these inconsistent and contradictory versions, there is no reasonable explanation forthcoming as to why there was an inordinate delay in the registration of the FIR. Further, the evidence of PW.1, to the effect that consultations were held with a party leader and an Advocate, prior to registration of the FIR, gives rise to a strong possibility that fabrications were made as to who, belonging to the rival faction, should be implicated in the FIR. Such methods cannot be ruled out, especially in a faction murder. 14. To compound the matter, there appears to have been further delay in the dispatch of the FIR, inasmuch as the same was sent to the Magistrate only at 5-30 PM. In the light of these facts, the FIR (Ex.P-1) is not reliable. 15. In this regard, reference may be made to the judgment of the Supreme Court in Rajeevan’s case (1 supra), wherein the Supreme Court, while dealing with the delay in lodging of the FIR, reiterated what it had stated earlier in THULIA KALI v. STATE OF TAMIL NADU (1972) 3 SCC 393 : 1972 SCC (Cri) 543, extracted hereunder: “12: First Information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report of the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of he actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained.” Further, in DILAWAR SINGH’s case (2 supra), the Supreme Court held as follows: “8: In a criminal trial, one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version or the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. In Thulia Kali v. The State of Tamil Nadu (AIR 1973 SC 501), it was held that the delay in lodging the first information report quite often results in embellishment as a result of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, but also danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. In Ram Jag and others v. The State of U.P. (AIR 1974 SC 606) the position was explained that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay can be condoned if the witnesses have no motive for implicating the accused and /or when plausible explanation is offered for the same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or authenticity of the version of the prosecution.” 16. In the light of the aforesaid legal position, the delay in lodging the FIR in the present case, which is not explained, becomes fatal owing to the interested nature of the complainant and his consultations with others, including an advocate and a party leader, prior to lodging of the FIR. The FIR, therefore, necessarily has to be discarded. 17. The evidence of the eyewitnesses is equally inconsistent, even with regard to the overt acts attributed to the individual accused. Except for the allegations made against A-1 and A-10, there is no consistency in the thread of evidence put forth by the eyewitnesses. A- 1 has gone beyond the reach of this Court and his involvement in the offence need not concern us. However, in so far as A-10 is concerned, all the eyewitnesses spoke of the fact that he threw a boulder on the head of the deceased after the deceased fell down. However, the prosecution failed to produce the said boulder as a material object. In the absence of this substantive piece of evidence, no inference can be drawn against A-10 merely on the basis of the depositions of the eyewitnesses, who have already been found by this Court to be interested parties. Further, their evidence has not been consistent on all counts, thereby opening it to further doubt. 18. It is relevant to note that the prosecution marked a knife as MO No.6. Though it is the case of the prosecution that the said knife was recovered at the instance of A-1, the evidence of PW.12, a recovery pancha, casts a shadow of doubt. PW.12 sated in his evidence as follows: “I was present at the time of Machavaram police arresting the accused in this case. On 02-06-2004 at about 5 p.m. the CI of Police arrested the accused near the Rice Mill of Kothapalem. Totally 10 accused were arrested by the CI of Police and they led him to Ganneru Vagu and there handed over one knife to the CI of Police. One of the 10 accused handed over that knife to the CI of Police. M.O.6 is the knife, which was seized by the police on that day in my presence.” 19. The recovery pancha did not even name the accused who handed over the knife to the police authorities. He did not say as to which of the accused confessed to using the said knife in the commission of the offence. No other information was gathered nor is it on record that any other material, relevant to the commission of the offence, was recovered from or at the instance of any of the accused. 20. Another aspect is that there is no plausible explanation forthcoming from any of the witnesses, including the investigating officer, regarding the non-seizure of the boulder, which was allegedly used as the last weapon thrown on the head of the deceased. Since the said boulder was the last weapon used in the commission of the offence, as was spoken to by the prosecution witnesses, it must have been smeared with blood and should have been found at the scene of the offence. It is therefore rather inexplicable as to why the boulder was not recovered from the scene of the offence. 21. In the totality of the aforestated facts and circumstances, the prosecution has miserably failed in proving its case against the accused so as to sustain the charges levelled against them under Sections 148 and 302 read with 149 IPC. 22. In the result, the appeal is allowed and the impugned judgment dated 09-04-2008 in S.C. No.58 of 2006, passed by the Sessions Judge, Guntur, recording convictions and sentences against the appellants / accused Nos.2 to 10, is accordingly set aside. The appellants shall be set at liberty forthwith, if they are not required in any other case. The fine amount, if any, paid by them shall be refunded. ________________ D.S.R. VARMA, J ________________ SANJAY KUMAR, J September 17, 2009. KTL [1] (2003) 3 SCC 355 [2] AIR 2007 SC 3234.