THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRL.A.No.1848 of 2007 JUDGMENT: (per Hon’ble Sri Justice G.Krishna Mohan Reddy) This Appeal is directed against conviction and sentence imposed in Sessions Case No.120 of 2007 against the appellant vide judgment dated 27.07.2007 on the file of the Court of the III Additional Sessions Judge, (FTC-II), Khammam, in respect of the offence punishable under Section 302 IPC. The appellant is the accused and the respondent is the complainant in the Sessions case. For convenience sake, the parties will be referred to as arrayed in the Sessions Case. Before going into the merits of the case, it is necessary to note the prosecution version, in brief. The accused is the resident of Vegithota village, Chintoor Mandal, Khammam District. The defacto-complainant namely Sode Narayana, elder brother of late Sode Subbaiah (for short, the deceased) is also the resident of same village. On the night of 07.02.2006, the deceased along with other villagers, about 70 persons in total, went to forest for hunting. They killed wild goat and all of them divided the meat into shares for distribution among themselves. After necessary distribution, five persons namely Sariyam Buchaiah (P.W.6), Kota Mohan Rao, Sariyam Seetharamaiah, Thellam Muthaiah and Mosam Nagaiah (P.W.5) remained for distribution. The accused received four shares for distribution among those five persons and informed them that one share was missing, as it was taken away by the deceased Sode Subbaiah. On the pretext of getting back the 5th share of the wild goat meat, the accused took Sariyam Buchaiah (P.W.6), and Mosam Nagaiah (P.W.5) to the cattle shed of the deceased in the outskirts of the village. Then the accused asked PWs 5 and 6 to stand at some distance and then went into the cattle shed and questioned the deceased about the 5th share of the goat meat. Thereupon, the deceased and accused quarrelled, as a result of which the accused got provoked and picked up an axe found at the cattle shed and hacked the deceased to death with that axe, by reason of which the deceased died. Then, the accused fled away. When the accused was hacking the deceased, PWs 5 and 6 fled away from the scene of offence due to fear and then they informed the matter to the defacto- complainant at the thrashing floor of the defacto-complainant at 8.00 P.M. on the same day. Sometime thereafter, the defacto-complainant heard cries and immediately rushed to the shed of the deceased and found the dead body of the deceased with injuries on his face. Further, as it was late night, the village elders advised the defacto-complainant to protect the dead body. Therefore, only on 08.02.2006 at 1.30 P.M., the defacto- complainant went to the Police Station at Chintoor and presented a report, on the basis of which the Sub-Inspector of Police registered the case under Section 302 IPC and issued the F.I.R. The Circle Inspector, Chintoor, on receiving information, took up and conducted the investigation of the case. Further, he arrested the accused at 10.00 A.M. at Vegithota village in the presence of mediators and the accused gave a confession leading to the recovery of the axe under cover of panchnama. Further, the D.S.P., Bhadrachalam, took up investigation and conducted the remaining part of the investigation of the case. Further, the dead body was sent to the Government Tribunal Hospital, Chintoor, where the Medical Officer-PW.11 conducted post-mortem examination over the dead body and gave opinion that the death was caused due to cardio respiratory failure due to haemorrhage and shock due to multiple injuries received. Further, the Inspector of Police filed charge sheet after the completion of the investigation of the case. After observing necessary formalities, for the prosecution, PWs 1 to 14 were examined and Exs.P.1 to P.10 and M.O.s 1 to 3 were marked. For the defence, nobody was examined and no documents were marked. The plea of defence is of total denial of the charges and incriminating evidence adduced. The trial Court having found the accused guilty of committing the offence punishable under Section 302 IPC, sentenced him to suffer imprisonment for life and also to pay a fine of Rs.200/- and in default of paying it to suffer simple imprisonment for two months, against which the present appeal has been preferred. The learned counsel for the accused mainly attacks the judgment of the trial Court on the ground that the evidence of only PWs 5 and 6 is available to speak about the incident and significantly the prosecution claims that they along with the accused went to the cattle shed and stayed outside the cattle shed and the accused went inside the cattle shed and on hearing cries they ran away but they were not examined at the time of inquest over the dead body and further they were examined by the police about three months after the alleged incident about which there is no explanation and in fact, as elicited from the prosecution evidence, the Investigating Officer suspected their involvement in the murder of the deceased, and their conduct in not going to rescue the deceased and also running away from the scene of offence under the said circumstances is quite unnatural as there was no need for them to do so and there was a possibility of holding that they might have actually involved in killing the deceased and the accused is innocent of the alleged offence and in any case when there is some suspicion, benefit of doubt is to be given to the accused. He has not disputed the other aspects of the case. On the other hand, it is the contention of learned Public Prosecutor that much emphasis is to be given to the fact that as per the first information report statement, only on the basis of information given by PWs 5 and 6, the defacto-complainant (PW.1) gave the report to the police and it is also disclosed from the evidence of PW.10 an elder whose evidence is trustworthy and acceptable that on the next date of the incident PWs 5 and 6 came to his house at the outset and informed him that the accused assaulted the deceased and due to fear they ran away from the scene of offence and then P.W.10 conducted panchayat, which was attended by all the villagers including PWs 5 and 6, and on enquiry he came to know that the accused was absconding from the village. According to him the said circumstances prove the bonafides of PWs 5 and 6 and there is absolutely no reason to disbelieve them whereas the fact that the accused absconded after the incident proves his guilty mind and there is sufficient evidence to establish the charge against the accused and the trial Court properly examined the matter and arrived at correct conclusions and there is no reason to interfere with the judgment of the trial Court. The trial Court in fact elaborately discussed various aspects of the case including the scene of offence, inquest and post-mortem examination over the dead body apart from the question credibility of the evidence of PWs 5 and 6, on the basis of which came to conclusion that the accused committed the offence in question. Therefore, it is to be examined as to whether sufficient evidence was placed in order to establish the charge under Section 302 IPC against the accused and the judgment rendered by the trial Court is tenable in law. POINT: The evidence of PW.1 is to the effect that on the relevant date, PWs 5 and 6 came to him and informed about the murder of the deceased at the thrashing floor of the deceased and then he went to the spot and found the dead body of the deceased with injuries on his forehead, cheek and mouth, and on the next day, he gave report to the police as in Ex.P.1. PWs.2 and 3 wife and son of the deceased also deposed that on information they went and saw the dead body with injuries. It is also the evidence of PW.2 that there were disputes between the deceased and the accused prior to the incident. In her cross-examination, she deposed that the accused and deceased were quarrelling with each other at their field. But PW.3 denied that there were any disputes between them which falsifies the evidence of PW.2 in that context. The evidence of PWs 1 to 3 is hearsay in nature and is not sufficient to establish the charge against the accused. PW.5 and PW.6 deposed in accordance with the prosecution version about hunting the goat and sharing the meat and also what the accused represented in that behalf. Further, it is specifically deposed by PW.5 that after they and the accused approached the cattle shed of the deceased, himself and PW.6 stayed at a distance of about 50 yards from the victim and the accused, and the victim and the accused involved in a quarrel and then the accused beat the victim, due to which the victim fell down. He further deposed that he did not observe whether the accused was armed with any material object at that time. Immediately, he deposed that he could not see whether the accused assaulted the deceased with hand or by means of any material object. It is his further evidence that after the victim fell down, himself and P.W.6 ran away from that place due to fear and then approached PW.1 at his house and he came to know about the death of the deceased, on the next day. He also deposed about a Panchayat said to have been conducted by PW.10 and others in the matter. In his cross-examination, a suggestion was put to him that himself and PW.6 in fact involved in the murder of the deceased but they had thrown the blame against the accused, which he denied. It is admitted by him that both of them were taken to the police station in connection with the murder of the deceased. He also deposed by him that at the time of inquest over the dead body he was present. According to PW.6, further the accused kept him and PW.5 at a distance of 100 yards from the cattle shed of the deceased, when the incident occurred. He denied in his cross-examination that himself and PW.5 did not go to the cattle shed of the deceased on the date of incident. He also denied that he along with PW.5 involved in killing the deceased and had thrown the blame against the accused, and got foisted a false case against the accused, by managing the police. When there were no prior disputes between the accused and the deceased, and it is not the prosecution version that the deceased involved in taking the goat meat share of the accused, it appears somewhat unnatural that the accused actually involved in killing the deceased on that score. On the other hand, there was a possibility of PWs 5 and 6 doing so having grouse against the deceased on the ground that the deceased had taken away their share of the meat, about which the accused got nothing to do, whereas the circumstances of the case explain that the accused had taken them only for the purpose of collecting their share of meat from the deceased. It is necessary to consider what injuries the deceased received, so as to ascertain the actual complicity of the accused. It is the evidence of PW.11 Civil Assistant Surgeon, Government Hospital, Chintoor, that on 08.02.2006, he conducted autopsy over the dead body of the deceased from 4.00 PM to 5.00 PM and found the following external and internal injuries: 1. Abrasion of 10 x 2 cms on the right arm middle and lateral side of the deceased with blunt object. 2. Abrasion of 10 x 2 cms on the chest above the right nipple of the deceased. 3. Incised and depressed lacerated wound of 3 x 1 x 1 cms between the two eye brows and upper part of his nose and his skull was fractured. 4. Incised and lacerated wound of 4 x 1 x 1 cms on the upper part of his nose and frontal and nasal bridge and his nose was fractured and crushed. 5. Incised lacerated wound of 4 x 1 x 2 cms just on his left eye brow. 6. Incised deep lacerated wound of 3 x 1 x 2 cms just above his left orbit. 7. Incised deep lacerated wound of 4 x 1 x 1 cms just above his left eye brow and frontal bone 2 cms above his left eye lid towards his left temple. 8. Incised wound of 3 x 1 x 2 cms on his upper lip, cut and entered into his skull. 9. His frontal bone was fractured and crushed. 10. Bleeding was found from his right ear, nose and mouth. 11. Contusion on his right arm 10 x 4 cms. 12. Abrasion of 4 x 4 cms on his right thigh lateral. He further deposed that the cause of death was due to cardio respiratory failure by reason of haemorrhage and shock because of the multiple injuries received, and the approximate time of death is 20 hours prior to the post-mortem examination, and that the injuries mentioned above were antermortem in nature. Further he deposed that the injuries 3 to 9 were possible by means of a sharp edged weapon like M.O.3-axe and the injuries 1, 2 and 12 were possible by means of a stick portion or but end of an axe. Thus, the medical evidence amply establishes that it is a case of homicide. The innumerable injuries caused to the deceased, as enumerated above also clearly establish that the murder was caused with a pre-determined mind and with some vengeance. We are curious about the evidence of PWs 5 and 6 that they were kept at a distance of 50 to 100 yards from the cattle shed of the deceased and only the accused entered the cattle shed and as they heard cries or on seeing the accused beating the deceased, they ran away from that place due to fear. Admittedly, they participated in the hunting of the forest goat and they also claimed their shares of the goat meat along with others and on the ground that the share of the meat due to them was taken away by the deceased, they followed the accused as the accused informed them that he would collect the share from the accused. Under such circumstances, the natural conduct of PWs 5 and 6 would have been to approach the accused and the deceased and take necessary measures to prevent any untoward event or prevent the accused from continuously causing injuries to the deceased, even assuming that the story put-forth by the prosecution is true and correct. It is quite unnatural what is deposed by PW.5 that as the accused beat the deceased, by reason of which the deceased fell down, he and PW.6 ran away and even he did not observe as to whether the accused was in the possession of any material object and he also could not say whether the accused assaulted the deceased by means of hand or any material object. It is also unnatural what is deposed by PW.6 that as they heard the cries of the deceased, then himself and PW.5 ran away from the scene of offence due to fear. There was no need for them to be afraid of the accused, in view of their relationship with the accused and the deceased being the residents of the same village and also in view of the other reasons narrated above. Further, it is quite surprising that according to the Investigating Officer ie. PW.14 he examined PWs 5 and 6 only on 15.05.2006 ie. after three months 7 days of the incident. It is also significant to note here that according to PW.1, on the information given by PWs.5 and 6, he gave report to the police and further according to PW.10 elder PWs.1, 5 and 6 approached him on the next date of incident and then PWs 5 and 6 informed him about the incident and thereafter a caste panchayat was conducted, but it was not attended by the accused who was found to be absconding. There is no reason to disbelieve this evidence of PWs 2 and 10. It is material to consider as to whether the accused was absconding soonafter the incident, but that alone cannot be taken as the basis to come to the conclusion that the crime was actually committed by the accused. It is also important that as per the inquest report-Ex.P.4 coupled with the oral evidence adduced, the witnesses examined did not include PWs 5 and 6. If they happened to be eye-witnesses and they were also available at the time of inquest naturally the Investigating Officer could have called them and examined them at the time of inquest of the dead body. It is also to be very much considered that according to the Investigating Officer at the time of inquest over the dead body itself, he suspected the involvement of PWs 5 and 6 in the crime. These circumstances throw doubt about their complicity in the incident. In view of the unnatural conduct of PWs 5 and 6 in not taking necessary measures after hearing the cries from the cattle shed or after seeing that the accused attacked the deceased, there is lot of doubt against the veracity of their evidence. When the testimony of PW.2-the wife of the deceased that there were prior disputes between the accused and the deceased and they used to quarrel with each other at their field is disproved by the evidence of their son PW.3, I do not find any reason for the accused to kill the deceased. If there were any disputes between them, the Investigating Officer would have ascertained it having examined the witnesses concerned and specified in the charge sheet that the prior disputes between the accused and the deceased were a reason for committing the murder of the deceased. Even supposing that such disputes existed between the accused and the deceased, that circumstance also is not sufficient to hold that the accused actually involved in killing the deceased. For the reasons narrated above, no credibility can be attached to the evidence of PWs 5 and 6. Therefore, consequentially benefit of doubt is to be given to the accused and ultimately he is to be acquitted. The trial Court, having accepted the evidence of PWs 5 and 6 and holding that the other circumstances of the case corroborate with their evidence, found the accused guilty of the offence, which in our considered opinion, is not tenable. At the end, the conviction and sentence imposed against the accused are to be set aside. In the result, the appeal is allowed and the conviction and sentence imposed against the accused-Tellam Muthaiah, S/o Thammaiah, for the charge under Section 302 IPC, in the Sessions Case No.120 of 2007 on the file of the III Additional Sessions Judge (F.T.C.-II), Khammam, are set aside and the accused-Tellam Muthaiah is set free and he is to be released forthwith from the detention, unless he is required to be detained in any other case. ____________________ V.ESWARAIAH,J __________________________ G.KRISHNA MOHAN REDDY,J Dt. 22nd September, 2011 PNV