HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.98 OF 2008 Dt.22.12.2010 Between: State of A.P., rep. by the Public Prosecutor ..Appellant And Mallipudi Veerendrakumar @ Veerendra and others ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE P.SWAROOP REDDY CRL.A.NO.98 OF 2008 JUDGMENT: (Per Sri Justice P.Swaroop Reddy) This appeal is filed by the State against the acquittal of the accused in S.C ST SC No.3 of 2001 on the file of the Special Sessions Court for Trial of Cases under S.C and S.T (POA) Act, 1989 (I Additional Sessions Court), East Godavari at Rajahmundry, dated 23.12.2005. Before the trial court, 12 accused were charge sheeted for the offence punishable under Section 302 read with Section 34 IPC. The trial court convicted A-1 for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/- and A-2 for the offence under Section 324 IPC and the sentence against him was restricted to pre-trial custody and acquitted the other accused. Aggrieved by the same, the present appeal is filed by the State i.e., questioning the total acquittal of accused Nos.3 to 12 and acquittal of A-2 for the offence under Section 302 IPC. The case of the prosecution is that the deceased Bondada Sadhu Sunder Singh @ Singh was a resident of Ambedkar colony, S.Atchuthapuram of Kakinada. He was a dalit. As per the charge sheet, he developed bad friendship with others and spent the days as a rowdy in the locality and there was a rowdy sheet on him in II Town Police Station, Kakinada. A-1 to A-12 were the residents of Kakinada and A-1 and A-2 are brothers. The others were their companions. The deceased and the accused were friends and used to move together sometime before the incident. The accused were not from Scheduled Caste and considering themselves to be upper caste. A-1 and A-2 were trying on one side and the deceased on the other, to prevail over each other for the acts of their vandalism. While so, prior to the date of offence on 3.12.1996 at 1.00 p.m., when A-1 was taking tea at Veerabhadra Coffee Hotel in Kamma Butchamma Centre, the deceased came there and addressed A-1 saying ‘orey siva ilarra’. A-1 retarded angrily saying ‘when you called why I should come, you are younger; you have to come, when I called’. On that the deceased and A-1 entered into a verbal altercation in the hotel itself. The hotel owner P.W.5 admonished both of them and sent them out. A-1 felt humiliated as the deceased addressed him as ‘orey’ and decided to kill the deceased. He took the help of other accused. On 7.12.1996 at 8.00 p.m., when the deceased along with P.W.2 was taking tea at Veerabhadra Coffee Hotel, all the accused came there, A-3 to A-12 stood outside the hotel while A-1 and A-2 went into the restaurant and dragged the deceased out to the road and all the accused scolded the deceased and insulted him pointing out his caste. A-2 first beat the deceased with a stick on the head causing a bleeding injury on account of which, the deceased fell on the road and P.W.2 and another tried to interfere and stop the accused. A- 1 threatened them with a dagger. A-3 to A-12 prevented them from interfering and instigated A-1 and A-2 to kill the deceased. A-2 held the deceased by his shirt collar, lifted him up and stabbed the deceased for about four times in quick succession on the left side of chest etc. The deceased fell on the ground in a pool of blood and died instantaneously. All the accused escaped from the place of offence after the collapse of the deceased. On complaint, a case in Cr.No.203 of 1996 under Section 302 read with Section 34 IPC and under Section 3(2)(ii) of S.Cs. & S.Ts. (Prevention of Atrocities) Act was registered and after investigation charge sheet was filed. All the accused pleaded not guilty. On behalf of the prosecution, P.Ws.1 to 14 were examined, Exs.P-1 to 26 and M.Os.1 to 9 were marked. On behalf of the defence, portions of statements recorded under Section 161 Cr.P.C., from P.Ws.2, 3 and 4 were marked as Exs.D-1 to D-3. Basing on the material available on record, the learned Special Sessions Judge convicted A-1 for the offence under Section 302 and sentenced to undergo imprisonment for life and convicted A-2 for the offence under Section 324 IPC while acquitting the other accused. It is brought to our notice by the learned senior counsel appearing for the respondents/accused that A-1 and A-2, who were convicted by the trial court, filed Criminal Appeal No.22 of 2006 and this Court by judgment dated 29.1.2008 acquitted them by allowing the appeal filed by them. Learned senior counsel contends that on account of acquittal of the two convicted accused, now nothing remains in this appeal filed by the State in view of the finding given by this Court in Crl.A.No.22 of 2006, dated 29.1.2008 and as such this appeal is liable to be dismissed. As seen from the record, the trial court relied on the evidence of P.W.2 alone and disbelieved the evidence of other witnesses and the presence of A-3 to A-12 was not there in the first information report and accordingly acquitted them. As seen from para 26 of the judgment of the trial court, the trial court observed that the evidence of P.W.2 inspires confidence as it is corroborated from the documentary evidence that three more eye witnesses viz., P.Ws.1, 5 and 6 have turned hostile, but the evidence of P.W.5 that on 3.12.1996 at about 1.00 p.m., the deceased and A-1 altercated and it was he who asked them not to quarrel in his hotel and leave the hotel and that on 7.12.1996 at about 8.00 p.m., while the deceased and P.W.2 were having a cup of tea in his hotel, ten culprits took away the deceased from the hotel to Kanuga tree in front of his hotel where a quarrel took place and he saw the deceased lying on the road and P.W.2, P.W.1 and Anand shifted the deceased to the hospital and later he learnt that the deceased died by the time he was taken to the hospital, could be relied upon. The trial Judge further observed that likewise the evidence of P.W.1 that after coming to know about the attack of the deceased by somebody, he rushed to the scene of offence by about 8.30 p.m., and joined P.W.2 and others taking the deceased to Government General Hospital, Kakinada, where the Doctors declared him dead and the evidence of P.W.6 that on 7.12.1996 at about 8.00 p.m., while the deceased and P.W.2 were having a cup of tea in the hotel of P.W.5, A-1 and others dragged the deceased out of the hotel, fought with each other, A-1 beat the deceased with a stick and threatened P.W.2 and Anand, when they tried to rescue the deceased who fell down and shifted over to the hospital by P.Ws.1 and 2 could be relied in view of the decision of this Court in Middolla Harijan Thimmaiah @ Thimmappa v. State of A.P.[1] wherein it was held that the evidence of the prosecution witness, who turned hostile, need not totally be rejected, but it can be accepted to the extent his version is dependable. This Court in Crl.A.No.22 of 2006, dated 29.1.2008, held that the evidence of P.W.2 also cannot be relied upon as several contradistinctions were extracted from P.W.2 and he was said to be a close associate of the deceased. As such, it is not at all safe to convict the appellants on the basis of the evidence of such a solitary witness. No appeal is filed by the State against the judgment in Crl.A.No.22 of 2006, dated 29.1.2008, and it has become final. Thus, with regard to the accused that were convicted by the trial Court, this Court in Crl.A.No.22 of 2006 held that the case against them is not held to be proved. There are no compelling circumstance to differ with the view expressed by this Court in Crl.A.No.22 of 2006, dated 29.1.2008, which has become final, we see no grounds to entertain this appeal. The criminal appeal is accordingly dismissed. ________________ V.ESWARAIAH, J. _____________________ P.SWAROOP REDDY, J. 22.12.2010 kpr [1] 2005 (1) ALD Crl.519