HON’BLE SRI JUSTICE A. GOPAL REDDY & HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.612 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice Raja Elango) State preferred the present appeal against the acquittal recorded by the learned Sessions Judge, West Godavari, Eluru, for the charges levelled against the respondents-accused for the offences under Sections 302 IPC and Section 302 r/w 109 IPC. 2. The brief facts of the case are as follows: One Bobbili Subbarao (for short, ‘the deceased’) was the senior paternal uncle of the 1st accused (A1) and there are disputes between A1 and the deceased on the ground that A1 sold away his half acre of land without the knowledge of the deceased and further disappointed the deceased from purchasing the said land. While so, the marriage of the son of the deceased was fixed on 18.5.2002 for which the deceased did not invite A1. On 17.5.2002 betrothal function was held and A1 visited the house of the deceased under the guise of beating drums and after the function, A1 picked up a quarrel with the deceased for not inviting him to the marriage of his son. During the course of exchange of heat words, A1 criminally intimated the deceased that he would see how the marriage would take place and A1 challenged that the deceased would not be alive by the time of the marriage. A1 uttered these words in the presence of P.W.1 and others. On the same day i.e., on 17.5.2002 during night A1 duly arming with a knife to do away the life of the deceased, proceeded to the house of the deceased and he was taking precautions to execute his plan. At about 1.00 a.m., the deceased came out from the house to answer calls of nature and taking advantage of this, A1 attacked with a knife and stabbed the deceased on the left side of abdomen and fled away. The deceased having remained in a pool of blood, raised cries as “Amma” and on hearing the cries, P.Ws. 1 to 3 rushed to the scene and saw A1 running away from the house. The deceased was shifted to the clinic of the 2nd accused, who has given first aid and on 19.5.2002 while undergoing treatment, the deceased died at 4.00 a.m., in the clinic of A2. 3. To substantiate the case, the prosecution examined P.W.1, who is the son of the deceased and who lodged Ex.P1 report on 19.5.2002. P.W.2 is the wife of the deceased and P.W.3 is the nephew of the deceased. P.W.4 is related to the same family. P.Ws.5 to 7 did not support the case of the prosecution. P.W.8 is the police constable; P.W.9 is the VDO-the mediator for scene of observation, inquest, arrest, confession and recovery of M.Os from A1. P.W.10 is the Sub-Inspector of Police, who on receipt of complaint from P.W.1 registered the case and issued FIR and P.W.11 is the investigating officer, who has done the investigation. P.W.12 is the doctor who conducted postmortem examination and issued Ex.P11-post mortem certificate. As per his report, he found the following injuries: “External Injuries: An elliptical shaped stabbed injury with clean out edges 1” x ½” size present. Vertically on the left side of the abdomen 3” lateral and 1” above to the umbilicus piercing the sub cutancous tissue, rectus sheath and rectus abdominis muscle and entering into the peritoneal covity piercing the mesentery of the ilcum with injury to the mesenteric vessels clotted blood present. About 2.5 liters of bolld present in the peritoneal cavity. Internal Examination: Head Scalp tissues intact. Vault of skull and base of skull- No fractures, meninges intact brain normal in size c/o pale Neck; Hyoid bone intact, other neck stractures-Normal Ab Thorax: Normal both Lungs: Normal in size C/s pale Heart: Normal in size c/s Chambers empty; Abdomen” P.W.12-Medical Officer opined that the deceased would appear to have died of shock and haemorrhage due to intraperitoneal bleeding due to the injury to the mesenteric vessels. 4. The learned Sessions Judge after appraisal of the evidence, acquitted the above respondents-accused. Aggrieved by the same, the State preferred the present appeal. 5. Perused the material available on record and also the evidence adduced before the Court below. 6. The evidence on record goes to show that the incident in question occurred on the intervening night of 17/18.5.2002 and the report was given by P.w.1 on 19.5.2002 i.e., after a lapse of two days, that too after the death of his father. In this regard, the prosecution has miserably failed to explain the reason as to why P.W.1 has failed to lodge a complaint immediately after the stabbing incident. At this juncture, it is relevant to go through the cross examination of P.w.1 wherein he stated that, “ It is true that his father while going to attend the calls of nature on account of his age he could not see properly and he sustained injury as a piece of iron sheet pierced him and thereby, he sustained injury, for which they applied the liquid of leaves i.e., pasuru and put bandage around his injury.” P.w.2, who is no other than the wife of the deceased admitted in her cross-examination that, “ I do not know what had happened when my husband went to attend calls of nature”. P.W.3 in his chief-examination stated that the occurrence of the offence in question was informed by the deceased. 7. The evidence of the above witnesses makes it clear that either P.w.2 or P.w.3 are not the direct eye witnesses to the occurrence and as such, their evidence is not helpful to the case of the prosecution. The evidence of P.w.1, falsifies the case of the prosecution that while the deceased was going to answer calls of nature, A1 stabbed him with a knife on his abdomen and the deceased fell down in a pool of blood and on hearing his cries, P.ws.1 to 3 came to him and saw A1 running away from that place. Apart from that, it strengthens the defence theory that A1 has not caused the injury and the death is due to injury sustained by the deceased due to fall on an iron sheet. 8. In view of the evidence of P.ws.1 to 3, it can be said that the entire investigation conducted by the investigation agency on mere surmises and conjectures as there were disputes between the accused and the deceased prior to the date of occurrence. 9. So far as respondent No.2 (A2) is concerned, the only allegation made against him is that he refused to give medicine to the deceased when the deceased was taken to the hospital. Apart from that, there is no even a prima facie material and evidence to show that A2 is an abettor for the commission of the offence under section 302 r/w 109 I.P.C. As already stated, it is the admission of P.w.1 in his cross examination that, “ It is true his father while going to attend the calls of nature on account of his age he could not see properly and he sustained injury as a piece of iron sheet pierced him and thereby, he sustained injury, for which they applied the liquid of leaves i.e., pasuru and put bandage around his injury,” When there is no material to connect even A1 for the offence in question, the question of abetment by A2, does not arise. 10. In view of the above discussion, this Court is of the view that there is no need to interfere with the judgment under appeal as the same is well reasoned one and it does not suffer from any infirmity or perversity and hence, the appeal is liable to be dismissed. Accordingly, this Criminal Appeal is dismissed. ______________________ Justice A. Gopal Reddy ____________________ Justice Raja Elango Date: 25.10.2010 Nn HON’BLE SRI JUSTICE A. GOPAL REDDY & HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.612 OF 2007 (Judgment delivered by the Hon’ble Sri Justice Raja Elango) 25.10.2010