THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CRIMINAL APPEAL No. 277 of 2008 J U D G M E N T: The acquittal of both the accused in respect of an offence punishable under Section 307 read with Section 34 of the Indian Penal Code in S.C.No. 48 of 2005 on the file of the Assistant Sessions Judge, Ramachandrapuram by the judgment dated 23.06.2006 led the State represented by the Public Prosecutor to prefer this appeal. The Sub-Inspector of Police, Mandapet Rural Police Station filed the charge sheet in Crime No. 49 of 2004 alleging that on 04.07.2004, Arjun, nephew of the 1st accused and U. Durga Prasad quarrelled and fought with each other while playing with other children. On the children informing them, Smt. U. Ananta Lakshmi, mother of Durga Prasad and the grand mother of Arjun quarrelled with each other, in which the 1st accused interfered and beat Smt. Ananta Lakshmi. On knowing the same, Sri U. Satyanarayana, husband of Smt. Ananta Lakshmi rushed home and the 1st accused and his father, the 2nd accused attacked Satyanarayana. In the fight between the two groups, both the accused hacked Satyanarayana with a knife and an axe intending to kill him and causing bleeding injuries on the left side of the stomach and left upper arm. When Sri Gosangi Satyanarayana attempted to rescue Satyanarayana, both the accused attacked him also and he sustained a bleeding injury when he was hacked with a knife on the head. Sri U. Satyanarayana and Sri Gosangi Satyanarayana were admitted in Government Hospital, Mandapet and on the statement of Sri U. Satyanarayana recorded by the Sub- Inspector of Police at the hospital, the crime was registered and investigated into. A scene of offence observation panchnama was drafted before mediators and both the accused were arrested on 15.07.2004. On their confession, the knife and the axe were seized before mediators under a panchnama. The Medical Officer, Government Hospital, Mandapet opined the injuries of the injured to be simple, caused by sharp objects. Hence, the charge. On the Judicial Magistrate of I Class, Alamur taking cognizance of the offences in P.R.C.No. 15 of 2004, copies of the documents were furnished to both the accused when they entered appearance. On committal to the Court of Session, the case was made over to the trial Court and to a charge under Section 307 read with Section 34 of the Indian Penal Code, both the accused pleaded not guilty. The prosecution examined P.Ws.1 to 9 and marked Exs.P1 to P8 and M.Os.1 and 2 during trial and both the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure. The accused claimed that the 1st accused separated the quarrelling children and that they were attacked by the opposite party at their house with an axe and a knife and the 2nd accused was hacked and was injured. They claimed that they were admitted in Government Hospital, Kakinada. Exs. D1 and D2 were marked on behalf of the defence and no other defence evidence was produced. The trial Court rendered the impugned judgment referring to the factual background and the rival contentions and observed that other independent witnesses available were not examined though some of them were cited. The accused also admittedly received injuries which is the subject of C.C.No. 179 of 2004 on the file of the Judicial Magistrate of I Class, Alamur and both the cases ought to have been tried in the same Court to enable determination of who were the aggressors and who were the aggrieved. The trial Court also noted that there were no visible marks of evidence at the scene of offence when the Investigating Officer visited the scene and the material discrepancies about the existence of street lights made the trial Court assume the evidence of P.Ws.1, 2 and 4 to be false. The measurements of M.Os. 1 and 2 noted by the mediators were not tallying with M.Os. 1 and 2. The trial Court further observed that P.W.4 was stated to have received a bleeding injury on being beaten with a stick, but the same was not complained and P.W.4 did not take any treatment. It was also noted that the First Information Report referred to a “Kattipeeta” being used for injuring P.W.1, but not a “kathi” as sought to be developed in evidence. It was further observed that the time of the incident was also spoken discrepantly and the presence of the accused is not in dispute, but the accused claimed that they were the aggrieved and not the aggressors. In the absence of the counter case before the same Court, the trial Court opined that it was not possible to decide who were the aggressors and who were the aggrieved and consequently, it extended the benefit of reasonable doubt to both the accused and acquitted them. In appeal, the State contends that all the necessary ingredients to constitute the offence punishable under Section 307 read with 34 of the Indian Penal Code were made out by the prosecution evidence and the truthful evidence of the injured witnesses corroborated by the medical evidence ought to have been accepted. The State therefore, desired the acquittal to be converted into a conviction. Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor/the appellant and Sri Y.V. Srinivasan, learned counsel for both the respondents are heard. The point for consideration is whether the guilt of both the respondents for an offence punishable under Section 307 read with Section 34 of the Indian Penal Code has been proved beyond reasonable doubt? The earliest version in Ex.P1 – First Information Report/ the statement of P.W.1 itself showed that an incident between the children which happened on 04.07.2004 morning led to the altercation near the residence of P.W.1. Though Ex.P1 did not refer to any overt acts against the accused by P.W.1 or his men, the very manner in which the incident was described indicated the possibility of both sides indulging in a fight in consequence to the incident in the morning. The First Information Report said to have been registered at 11.20 pm., on 04.07.2004 reached the learned Magistrate only after about 11 hours and the chance for consultation, deliberation and improvement in the version is very much present. Ex.D1, portion of the statement of P.W.1 recorded by the Sub- Inspector mentioned the weapon of offence as a “katti” and not a “katti peeta”, while Ex.D2, portion of the same statement mentioned the weapons of offence as a “katti” and “goddali”. However, Ex.P1 was specific that the 1st accused used a “katti peeta” for attacking P.W.1 and though it was alleged that on the left hand there was a cut injury with a knife, it was not specified as to who out of Accused Nos. 1 and 2 used such a weapon of offence. The wound certificates of the injured are Exs.P2 and P3. While Ex.P2 mentions the injuries to have been alleged to be caused during an attack with an axe and a knife, Ex.P3 was silent about the manner in which the injuries were caused. The nature of the injuries were opined by the medical officer to be simple and none of the injuries referred to in Exs.P2 and P3 are such as could have been sufficient or likely to cause the death of any person in the ordinary and natural course of human events to presume any intention to kill in causing such injuries. The examination of the scene of offence under Ex.P5 panchnama by the next morning at 08.00 a.m. before independent mediators did not disclose any physical features of the possibility of an incident as alleged by the prosecution. Ex.P6 mediatornama for the recovery of M.Os. 1 and 2 after 11 days after the incident is as though both the weapons of offence were kept intact under a papaya tree behind the house of the accused for 11 days so as to be readily recoverable by the Investigating Officer before the mediators. The recovery is anything but natural and the accused denied any such recovery. Smt. U. Satyavathi, Smt. A. Suryakantham and Sri A. Appa Rao, independent witnesses cited to corroborate the prosecution version, were given up as similar witnesses among the family members of P.W.1 were already examined, forgetting for a moment that the evidence of the family members of P.W.1 was tainted with interestedness and though every interested evidence is not false evidence, it is an accepted rule of prudence to look for satisfactory independent corroboration for such interested witnesses before acceptance. P.W.1 attempted to describe the incident as an attack by the accused without any reason and he claimed to have not observed the weapons used, but again stated that he can identify the weapons, if they were shown. He stated, at the first instance, that both the accused fled away on a scooter and again tried to claim that accused fled away on a cycle and received injuries due to a fall from the cycle. While he denied referring to a “katti peeta” in his statement, Ex.P1, he denied stating to the police that the accused fled away with the arms. He conveniently claimed ignorance as to whether the 2nd accused was also admitted in hospital at Kakinada on being referred by the local hospital even before he went to the hospital. P.W.2, the father-in-law of P.W.1 and injured claimed to have interfered when P.W.1 was being injured and he was speaking about sending for P.W.1 after the incident in the afternoon and if so, P.W.1 not reacting at all also could not have been natural. P.W.2 admittedly did not see the overt acts of the accused against P.W.1. He also conveniently claimed ignorance about the injuries to and treatment of the 2nd accused. P.W.3 is the son of P.W.1 whose dispute with Arjun led to the entire sequence of events, according to the prosecution and he claimed P.W.2 to be sleeping when P.W.1 was injured and he did not state about the intervention by P.W.2 to be the reason for his being injured by the 2nd accused. He again tried to claim that P.W.2 was just lying on the bed and not sleeping and P.W.3 did not remember whether he stated about any physical assault on him and his mother P.W.4. He also does not know whether the bloodstained clothes of P.Ws.1 and 2 were seized by the police and no such bloodstained clothes were seized or produced. P.W.4 is the mother of P.W.3 and wife of P.W.1, who claimed about the attack by the 1st accused on her and P.W.3 and she also tried to claim that the 2nd accused fell from a cycle and foisted a false case. She was not specific about the 1st accused being on the cycle or being injured. She admitted that the 2nd accused was in the hospital even by the time they went to the hospital and she did not even remember on which hand P.W.1 received any injury or on which shoulder. Her claim that the police saw the blood stained clothes was not followed by seizure of any such clothes and the evidence of P.Ws.1 to 4 as already stated was tainted with interestedness. P.W.6 a child witness and independent witness denied any knowledge about the incident proper, though he was speaking about the dispute between P.W.3 and Arjun and the 1st accused poking P.W.3 with a stick and beating P.W.4. P.W.7 only stated about his separating the accused on one side and P.W.1 and his two sons on the other and apart from being closely related to P.W.1, he was attracted to the scene only on hearing the cries of P.W.1 and did not witness the incident itself. As already stated, no other independent witness was examined and whosoever was cited was given up. The Medical Officer as P.W.5 stated that M.O.2 is only a sickle and not a knife and M.O.1 was not sharp. The allegations of the prosecution about the weapons used and the weapons produced, thus, do not tally and the doctor never stated about the likelihood or sufficiency of such injuries to lead to the death of P.W.1 or P.W.2. P.W.8 the mediator for Exs.P5 and P6 panchnamas, admitted the discrepancy between the measurements of the weapons as stated in Ex.P.6 and as physically found before the Court. He also admitted that M.O.2 is a kammara kathi used for cutting tree branches and not a knife as is ordinarily understood. P.W.9, the Investigating Officer could not say as to when the 2nd accused was admitted in the hospital and admitted that Ex.P1 stated the 1st accused to have hacked P.W.1 with a katti peeta. He asserted that P.W.1 stated to have told as in Exs.D1 and D2 and he also admitted about the pendency of C.C.No. 179 of 2004 and the discrepancies about the presence or absence of the street lights at the relevant time. Though P.Ws.1 to 4 have broadly spoken in support of the prosecution version, their interestedness, the absence of any corroboration from the independent witnesses and various other circumstances referred to above may not exclude the possibility of extending the benefit of reasonable doubt to the accused. The trial Court had the benefit of observing the demeanour of the witnesses and considered it appropriate not to accept their version at face value. Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor, of course, brought to the notice of this Court that in C.C.No. 179 of 2004, the accused were acquitted on merits and the said acquittal has become final showing that the prosecution party were not the aggressors. However, the evidence in this case, as discussed above, may not be sufficient to conclude that the 1st accused or the 2nd accused caused the injuries attributed to their overt acts over the persons of P.Ws.1 and 2 respectively. The discrepancies about the weapons of offence are material and in any view the intention to kill P.W.1 or P.W.2 can never be deduced from the evidence of P.W.1. The absence of any treatment to P.W.4 or any complaint about her injuries in spite of her allegedly receiving a bleeding injury with a stick is also material and it is quite probable that though there might have been an incident involving both the parties, the prosecution was not coming up with the whole truth regarding the manner in which the incident had happened. Under the circumstances, the acquittal of both the accused by the trial Court cannot be interfered with as such an interference can only be on very strong and positive grounds. Therefore, the Criminal Appeal is dismissed. -------------------------------- (G. BHAVANI PRASAD, J) 29th December 2011 ksld