THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL APPEAL No.216 of 2008 JUDGMENT (Per the Hon’ble Sri Justice A. Gopal Reddy): The State represented by Public Prosecutor filed this appeal against the judgment dated 10.10.2006 passed by the Principal Sessions Judge, East Godavari District, Rajahmundry in S.C.No.340 of 2005, whereby and whereunder, the respondent/accused, who was tried for the offence under Section 302 I.P.C for causing the death of Dwarapureddi Rambabu @ Ramu (hereinafter referred to as ‘the deceased’) was found not guilty of the said offence and accordingly he was acquitted of the said offence. 2. The case of the prosecution, in nutshell, is as under: The accused is the younger brother of D.W.1’s husband. The mother of the deceased and D.W.1’s mother-in-law are co-sisters. Padma is D.W.1’s husband’s elder brother’s daughter-in-law. All the parties and witnesses are closely related to each other. On 07.02.2004, after taking dinner, P.W.3 went to neighbouring house of Dwarapureddi Ramesh (D.W.2), who is working under him in his leased land and woke up his wife Padma, who was sleeping in her house lonely, during temporary absence of D.W.2. When Padma became afraid of P.W.3 and raised alarm, the neighbours and relations rushed there along with the accused, who is junior uncle of D.W.2, and then Padma narrated the incident to them. On that they picked up quarrel with P.W.3 and admonished him. Subsequently, the ladies gathered there went to the shop of P.W.2 and reported the matter to him. Then P.W.2 came to the spot and admonished his brothers - P.W.3 and Ramu for indulging in disputes. P.W.2 apologized on behalf of his brothers, subsided the issue temporarily and postponed the matter to be settled before elders on the next day and went away. The accused bore grudge against the brothers of P.W.2, collected a spear and was waiting at P.W.3’s house to attack them whenever they come out. On the same day at about 10.45 p.m, when P.W.3 and the deceased came out of the house, the accused raised a dispute with P.W.3. When the deceased intervened and tried to rescue his brother- P.W.3, the accused attacked the deceased with the spear and when the deceased was running, the accused chased him and stabbed him on chest, back and left hand in from of Bangaram’s house, as a result of which, the deceased died on the spot. The accused ran away from the scene with crime weapon. P.W.2 went to the office of P.W.1, Panchayat Secretary in Tamarada Gram Panchayat and informed about the incident to him. Then P.W.1 went to the house of Dwarapureddi Nallabbayi @ Ramulu and found the dead body of the deceased. Thereafter, P.W.1 went to Kirlampudi Police Station and gave Ex.P.1 report. Based on the said report, P.W.10-Sub Inspector of Police registered a case in Crime No.8 of 2004 for the offence under Section 302 I.P.C and issued Ex.P.20- F.I.R. P.W.11-Circle Inspector of Police, on receiving telephonic instructions from P.W.10, rushed to the village, examined the scene where the dead body was found, in the presence of mediators, prepared Ex.P.21-rough sketch of scene of offence, got photographed the scene of offence, seized M.Os.1 to 7, conducted inquest over the dead body of the deceased and thereafter, sent the dead body for post mortem examination. P.W.9-the doctor, who conducted autopsy over the dead body of the deceased, issued Ex.P.19 - Post Mortem Certificate opining that the cause of death was due to incised cut injuries of vital organs inducing haemorrhage and shock. After completion of investigation and on receipt of relevant reports, P.W.11 filed charge sheet. 3 . On committal, the learned Sessions Judge framed a charge against the accused for the offence under Section 302 I.P.C. When the same was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.23, apart from marking M.Os.1 to 9. On behalf of the accused, D.Ws.1 and 2 were examined and Exs.D.1 and D.2 were marked. 5. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., with regard to the incriminating material made against him by the prosecution, which he denied. 6. The learned Sessions Judge, on appreciation of the oral and documentary evidence, found the accused not guilty of the offence under Section 302 I.P.C and accordingly acquitted him. Hence, this appeal by the State. 7. Heard the learned Additional Public Prosecutor, who has taken us through the impugned judgment and the entire material available on record. 8 . P.W.1, who is working as Panchayat Secretary in Tamarada Gram Panchayat, and who set the criminal law into motion by lodging Ex.P.1-report, is not an eyewitness to the incident. He also acted as mediator for the scene of observation report, seizure of material objects and the inquest conducted on the dead body of the deceased. 9. P.W.2, who is the elder brother of the deceased, is also not an eyewitness to the incident. He deposed that the deceased was living with his daughter-P.W.4 at Tamarada, as his wife was living separately since two years prior to his death due to disputes, at Veeravaram; that on 07.02.2004 at about 10.00 p.m., while he was at his shop, Rajeswari, Ramanamma (D.W.1), Surayamma and Ramayamma came to him and informed that P.W.3 woke up Padma and in that connection an altercation was going on; that he went to the house of P.W.3 and separated both the parties promising to raise a dispute in the presence of elders on the next morning; that he kept P.W.3, the deceased, P.W.5 and P.W.6 in a room in P.W.3’s house, closed the doors and again went to his shop; that thereafter, he heard some commotion and then he came out and saw the accused rushing with a spear M.O.8 near the house of Uddagiri Nageswara Rao and that when he was going towards the house of P.W.3, P.W.4 rushed towards him by saying that the accused killer her father with a spear. In the cross examination, he testified that by the time he rushed to the scene of offence, the deceased was dead and therefore, he did not try to take the deceased to any doctor. 10. P.W.3, who is the younger brother of the deceased deposed that D.W.2 used to attend agricultural coolie work in his lands; that on the night of 07.02.2004, he asked D.W.2 to wait at house for the purpose of switching on water motor in the land; that at about 9.00 p.m, he went to the house of D.W.2 and woke up one person, who was sleeping outside, but it was not D.W.2 and it was his wife Padmavathi; that when she raised cries, Surayamma, Suryakantham Ramanamma, Rajeswari and others gathered there and the accused and the deceased also came there; when they were altercating with each other, P.W.2 came there and promising to see that the dispute will be raised before the elders in the morning kept him, his wife (P.W.5), his daughter (P.W.6) and the deceased in a room inside his house and closed the door; that when his daughter (P.W.6) wanted to go for urinal, P.W.4, who is the daughter of the deceased, came and opened the door; that along with P.W.6, himself and the deceased also came out; that the accused was armed with a weapon and standing at the house of Ramesh, which is opposite to P.W.3’s house separated by cement road; when the accused was rushing towards them, he ran into the house and the deceased ran towards the house of Bangaram; that the accused stabbed the deceased with spear on chest, back and left upper arm; that at the time of incident, he was near that place and P.Ws.4 to 6 were at his house and that after stabbing the deceased, the accused ran away. In his cross-examination, he admitted that for the first time, he narrated the offence to the police only on the next day. This witness added that about less than half-an-hour of P.W.2 keeping them in the room, the offence took place. 11. P.W.4, who is the daughter of the deceased, was declared hostile. 12. P.W.5, who is the wife of P.W.3, deposed that on the date of incident at about 9.00 p.m, after hearing cries about her husband waking up the wife of D.W.2, she came out of her house; that Suramma, Ramanamma, Rajeswari and Ramayamma came there and the deceased also came there; that the ladies, who gathered there went to P.W.2 and brought him there; that P.W.2 separated both the parties and promised to raise the dispute before the elders in the next morning; that P.W.2 kept herself, P.W.3, P.W.6 and the deceased in a room of their house and locked the door from one side and bolted the door from outside on the other side; that about half-an-hour thereafter, at about 10.00 p.m, when P.W.6 wanted to go for urinals, they called P.W.4 and she opened the door; that when P.W.6 was passing urine, P.W.3 and the deceased came out of the house; that when the accused rushed towards them along with a spear, the deceased ran towards Banagarm’s house while P.W.3 was standing at their house and that the accused went from behind the deceased and stabbed him with spear on his chest, back and on left upper arm. 13. P.W.6, who is the daughter of P.Ws.3 and 5, deposed in similar lines to that of P.Ws.3 and 5. 14. In Ex.P.4 - statement of P.W.2 recorded under Section 164 Cr.P.C by the Magistrate, P.W.2 did not state with regard to his keeping the deceased, P.W.5 and P.W.6 also in the room of P.W.3’s house and closing the doors from outside and made a significant omission. Further, in the said statement P.W.2 stated that the accused and the deceased went away to their respective houses after he subsided the altercation, which clearly falsifies the case of the prosecution with regard to the deceased also being kept inside the house of P.W.3 along with P.Ws.3, 5 and 6. 15. That apart, in his cross-examination, P.W.3 admitted that the police filed a criminal case against him for outraging the modesty of the said Padma in Peddapuram Court and that himself and his wife were also figured as accused persons in another criminal case filed by the police alleging that they were selling arrack. In his cross examination, P.W.3 deposed that he does not know whether D.W.1 received any injuries in the same incident relating to Padma, whereas D.W.1 in her cross examination deposed that she received injuries to her hand at about 11.00 p.m and the police took her to Government General Hospital, Prathipadu on the next day. Further, it is elicited in the cross examination of P.W.3 that he did not state to the police about P.W.2 keeping him, his wife and his daughter also inside the room along with the deceased and about opening of the door by P.W.4. In the cross examination of P.W.5 also it was elicited that she did not state to the police about herself and P.W.6 also being kept inside the room and about locking of the house on one side of the house. 16. Admittedly, when the deceased and P.W.3 came out of the house, the accused, who was waiting for the opportunity, would naturally attack P.W.3 since he tried to outrage the modesty of Padma, but not the deceased because he has no enmity or grouse against the deceased. 17. The evidence of D.W.2 shows that the accused is his junior paternal uncle; that on the night of the offence, he was sleeping in Rama Temple after consuming alcohol; that at about 11.00 p.m, when he went to his house for taking food, his wife complained to him that P.W.3 attempted to commit rape on her; that thereupon he took a knife and came out of his house and his father Subba Rao came behind him with another knife; that the deceased snatched the knife from his hand and hacked the hand of D.W.1; that the deceased also attempted to hack him and thereupon, his father killed the deceased with knife and that the accused was not there at the place of offence. 18. P.W.9, the doctor, who conducted post mortem examination over the dead body of the deceased, issued Ex.P.19 Post Mortem Certificate opining that the cause of death to the best of his knowledge was incised cut injuries of vital organs inducing haemorrhage and shock. However, in the cross examination, he stated that injury No.1 is not a stab wound, whereas injury No.2 is a stab wound; that if M.O.8 is thrust into body to the depth of 5 inches, as width of M.O.8 is 2 inches, injury No.2 must be 2 inches, and therefore, injury No.2 may not be possible with M.O.8 and that after the weapon went into depth of 5 inches, the skin, tissue and muscle may not have elasticity to cover the difference of 2 inches and 1½ inch. He admitted that injury Nos.4 to 7 are not stab wounds and they are individual injuries and that they cannot be caused by a single stroke. 19. The evidence of P.Ws.3, 5 and 6, who deposed about their witnessing the stab injuries on the deceased, has not been corroborated by the medical evidence. In view of the same, after carefully scrutinising the entire evidence, the learned Session Judge held that the prosecution has not placed true facts before the Court and that the evidence of P.Ws.2, 3,5 and 6 cannot be believed and the prosecution miserably failed to bring home the guilt of the accused. 20. In the circumstances, the learned Sessions Judge rightly acquitted the accused and there are no compelling reasons to come to a different conclusion than the one reached by the learned Sessions Judge and the appeal is liable to be dismissed. 21. In the result, the Criminal Appeal is dismissed. ___________________ A.GOPAL REDDY, J ___________________ N. RAVI SHANKAR, J Date: 30.11.2011 va