THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1755 of 2009 Date: 04.12.2009 Between : The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. … Appellant And Chemudugunta Babu @ Venkateswarlu, S/o. Ramaiah, aged 35 years, Harijana, Badrachalam village of Vidavaluru Mandal and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1755 of 2009 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor, appearing for the appellant- State as well as the learned counsel appearing for the respondents- Accused Nos.1 to 11. 2. Appellant is the State and respondents are Accused Nos.1 to 11 in the Sessions Case. 3. This Criminal Appeal, by the State, under Section 378 (3) and (1) of the Code of Criminal Procedure, 1973 (for brevity “Cr.P.C.”), is directed against the judgment, dated 29.3.2005, in Sessions Case No.218 of 2001, passed by the IV Additional Sessions Judge, Nellore, acquitting the accused for the offences punishable under Sections 148, 341, 427 and 302 read with 149 of Indian Penal Code (for brevity “I.P.C.”). 4. The case of the prosecution, in brief, is that there were some ill-feelings between the group of the accused and the group of the deceased-Nagabushanam at village Kancharapalem since 4 years. In that connection, on 23.6.2000 while the deceased and his brother P.W.4 were travelling in R.T.C. Bus bearing No.AP-9Z-8359 to give attendance at Vidavalur Police Station as per the orders passed by the Principal Sessions Judge, Nellore, in a conditional bail order, all the accused attacked and killed the deceased. Before killing the deceased, the accused made all the passengers, including the driver and the conductor travelling in the bus along with the deceased, got down from the bus leaving the deceased alone. Then all the accused killed the deceased with axes and knives indiscriminately resulting in his death. Basing on Ex.P.1 written report given by P.W.1, the V.A.O. of Mudivarthi on 23.6.2000, P.W.16, the Sub-Inspector of Police, Vidavaluru, registered a case in Crime No.42 of 2000 for the offences punishable under Sections 147, 148, 341, 342, 427 and 302 read with 149 I.P.C. and investigation was taken up by P.W.17 the then Inspector of Police, Kovur. After completion of investigation and necessary formalities, the police laid the charge sheet against all the accused for the offences punishable under Sections 147, 148, 341, 427 and 302 read with 149 I.P.C. 5. When the charges were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P- 16, besides marking material objects MOs.1 to 18. On behalf of the accused, D.W.1 the doctor who treated A.1 was examined and Exs.D-1 to D-4 were marked. 7. The Court below, having considered the entire material including the evidence, both oral and documentary, available on record, found the accused not guilty of the offences with which they were charged and accordingly acquitted them of the said charges. Aggrieved by the same, the State has preferred the present criminal appeal. 8. During the pendency of appeal, Accused No.9 died, therefore, the case against him was abated. 9. Now, the point that arises for consideration in this criminal appeal is whether the Court below is right in acquitting the accused for the offences with which they were charged? 10. It is the main case of the prosecution that P.W.4, brother of the deceased, who is said to be the only eye witness, stated that he was hiding in the bus at the last seat and had seen the attack by the accused against the deceased. The said version was not believed by the Court below for the reason that it is the definite case of the other witnesses, particularly P.Ws.2 and 3, who are the co- passengers along with the deceased and P.W.4, that only after all the other passengers got down from the bus, the accused attacked the deceased. When that is the specific version of P.Ws.2 and 3, the testimony of P.W.4 is to be tested on the other circumstances. Those circumstance are that he was hiding in the bus at the last seat at the time of attack by the accused against the deceased. 11. In this connection, it is to be seen that it is very easy for the accused, who were 11 in number, to identify P.W.4, if really he was hiding at the last seat of the bus. In other words, P.W.4 cannot be escaped from the eyes of the accused and there is no such possibility for him to escape from them. Even assuming that P.W.4 was hiding at the last seat, in normal course, he would not have clearly observed the attack by the accused against the deceased. Therefore, there is absolutely no chance for P.W.4 to watch the commission of offence by the accused against the deceased. Therefore, either way, the testimony of P.W.4 is not convincing. The other circumstances were also elaborately discussed by the Court below. Having regard to the untrustworthy testimony of P.W.4, who was cited as eye witness, the Court below rightly arrived at the conclusion that all the accused are entitled to be given the benefit of doubt. 12. Therefore, the reasons assigned by the Court below, while arriving at the conclusion that the accused are not guilty of the offences with which they were charged, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. 13. For the foregoing, the criminal appeal fails and is liable to be dismissed as having no merits. 14. In the result, the criminal appeal is dismissed, at the stage of admission, confirming the judgment, dated 29.3.2005, in Sessions Case No.218 of 2001, passed by the Court below. _________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE R. KANTHA RAO 04.12.2009 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1755 of 2009 04.12.2009 (Msr)