THE HON’BLE SRI JUSTICE K.C.BHANU AND THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL NO.880 OF 2007 JUDGMENT: {Per the Hon’ble Sri Justice K.C.Bhanu} 1. The State preferred the present appeal challenging the order of acquittal dated 31.03.2005 in Sessions Case No.12 of 2005 on the file of the IX Additional District & Sessions Judge (Fast Track Court), Visakhapatnam. 2. The facts of the case are as under. The accused Simhadri is the resident of Sikayabanda village and the deceased Vanumu Bengala Dora was the resident of Kitumala village. There were disputes between the deceased and the villagers of Sikayabanda Village as well as the accused over the ownership of Jeelugu tree. The deceased used to enjoy the yield of the Jeelugu tree. The villagers raised dispute about the Jeelugu tree before P.W.6, which was not settled. On 27.09.2004 morning at 8.30 hrs, the deceased along with P.W.4 went to Munasabhbanda Village for consuming toddy and found P.Ws.3, 5 and 9. By that time the deceased engaged P.W.5 for tapping toddy from the disputed tree. At about 11 am, while P.W.5 was tapping the toddy on tree, quarrel took place in between Gammeli Raja Rao (L.W.9) and deceased and the deceased beat Raja Rao with stick. On seeing the beating, P.W.3 left that place fearing that the deceased would beat him. In the mean while accused came there and enquired P.W.3 about the affliction mood of G.Raja Rao. Then P.W.3 informed about the accused beating G.Raja Rao. Then an altercation took place between the accused and the deceased. In that affray, the deceased grew wild and they pushed each other. On seeing the quarrel, G.Raja Rao went away out of fear. Later, the accused violently hit on the head of deceased with a stone and the deceased fell down. The accused picked up sharp edged stone and stabbed the deceased on his head indiscriminately, as a result, the deceased died on the spot. P.Ws.4 and 5 are the eye witnesses to the attack on the deceased and they left the place out of fear. The accused, due to fear, removed the wearing apparels of deceased, i.e., shirt and towel and concealed them in a bush. On 28.09.2005, on receipt of information, at 8 am, P.Ws.1, 6 and Bhagya Lakshmi went to Police Station and gave a report to P.W.12. A case is registered basing on Ex.P1 report. P.W.13 took up investigation and visited scene of occurrence, observed the scene and seized MOs.1 to 4. He also drew Ex.P13-rough sketch. The Doctor (P.W.11), who conducted post-mortem examination on the dead body of the deceased, opined that the deceased died due to haemorrhage and shock due to injury to great vessels of neck and injury to brain and fractures of skull bone. The accused surrendered before P.W.13 and P.W.13 recorded his confessional statement in the presence of P.Ws.2 and 10. After completion of investigation, P.W.13 filed charge sheet against the accused, as he committed the offence punishable under Section 302 of the Indian Penal Code, 1860 {“IPC” for brevity}. 3. The accused was committed to the Court of Sessions and the learned Sessions Judge, after appearance of the accused, framed the following charge. That you, on or about 27th day of September, 2004 at about 11.00 hrs, at a Jeelugu tree situated at the outskirts of Seekayabanda Village which lies in the limits of Chintapalli P.S., did commit murder by intentionally (or knowingly) causing the death of one Vanumu Bangaludora, S/o. (L) Narayanadora by hitting with a stone on the head of the deceased and again beat and stabbed with sharp edged stone on his face and head in the backdrop of a dispute regarding ownership of Jeelugu tree that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. 4. During the course of trial, P.Ws.1 to 14 were examined and Exs.P1 to P15 and MOs 1 to 8 were marked on behalf of the prosecution. No oral evidence was adduced but Exs.D1 to D6 were marked on behalf of the accused. The trial Court, after considering the evidence on record, came to the conclusion that the evidence of P.W.4 is found to be not acceptable and that P.W.5 did not witness the incident and accordingly, he was acquitted. Challenging the same, the present appeal is filed. 5. Now, the point for determination is whether the prosecution has proved its case beyond reasonable doubt against the accused for the charge under Section 302 IPC. 6. As the accused has no counsel to defend himself, Smt. Naseeb Afshan, learned counsel, is appointed as State Legal Brief. 7. Learned counsel representing the learned Public Prosecutor contended that the evidence of P.Ws.4 and 5 is very clear that it is the accused, who caused injuries to the deceased and there is no other reason for P.Ws.4 and 5 to speak false and that there was motive for the accused to commit the murder as there is a dispute existing between the accused and the deceased with regard to Jeelugu tree and that the doctor, who conducted autopsy, has categorically stated that the death of the deceased is homicidal in nature and further, the brother of the accused also saw the accused at the scene of occurrence and the trial Court has not properly appreciated the evidence on record in right perspective and hence, he prays to set aside the acquittal order. 8. On the other hand, Smt. Naseeb Afshan, State Brief, counsel appearing for the accused stated that the presence of P.W.4 is very doubtful and as the villagers were suspecting that P.W.4 was the assailant of the deceased, he left the village and if really the accused is the assailant, P.W.4, who is having a scooter would have taken him to the hospital or at any rate he would have given treatment and he would have informed about the incident to the relatives or to the villagers and without informing to anybody, he left the village, which suggests that P.W.4 was the assailant of the deceased and that though P.W.5 was present at the time of the incident, he categorically admitted that he did not witness the accused beating the deceased with a stone and therefore, if the evidence of P.W.4 is eschewed from consideration, there is no other evidence to show that the accused committed murder of the deceased and that there is no motive for the accused to commit the murder of the deceased. Therefore, she prays to dismiss the appeal. 9. This being an appeal against the order of acquittal, we are conscious of the fact that in dealing with such appeal, there must be compelling or substantial reasons to interfere with the order of acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Court of appeal is required to take into consideration the reasons given by the trial Court in basing the judgment of acquittal, very carefully and if such reasons are consistent with evidence, as a matter of prudence, the Court of appeal should not interfere with the order of acquittal, by re-appreciating the evidence and taking some other view. If the reasons given by the trial Court are contrary to the weight of evidence-the Court of appeal would be justified in discarding the same in exercise of its appellate jurisdiction. The paramount consideration of the Court is to prevent miscarriage of justice. 10. The doctor, who conducted autopsy, found the following injuries. (1) A confusion over the left front temporal region in 2” diameter with irregular margins. (2) A lacerated injury over the left side of the chin 1” x ½” x ½” irregular margins. (3) Two lacerated injuries over the left side of the neck. Both injuries are 1” x 1” x ½” width irregular margins. (4) A lacerated injury over the left lateral side of the right eye width 1 ½” x 1” x ½” inch with sharp margins. (5) A lacerated injury over the right cheek 2” x ½” x ½” with irregular margins. (6) A lacerated injury over the back side of the neck and lower part of the occipital region 4” x 1” x ½” with irregular margins. (7) A cut injury and rupture over the right ear. He opined that the cause of death was due to skull bone fractures. Except proving that the death of the deceased was due to homicidal death, the prosecution could not establish that it is the accused alone and no one else caused injuries to the deceased. 11. P.Ws.1 and 2, who are the relatives of the deceased, were not admittedly present at the time of the incident. P.W.1 stated that he came to know about the death of the deceased through P.W.4 at about 5 pm, but that appears to be false in view of the fact that in the First Information Report, he did not state that P.W.4 informed him about the incident. Further, P.W.4 has not given any explanation as to why he did not go to the house of P.W.1 to inform the incident immediately after the incident, though the incident took place at about 11 am. Admittedly, P.W.4 was having a scooter. Immediately after the incident, P.W.4 left the village and started residing at Narsipatnam and no explanation is forthcoming as to why he has shifted his practice to Narsipatnam. The entire case rests upon the solitary testimony of P.W.4, because though P.W.5 was present at the time of the incident and he was on the top of Palmyra tree tapping the toddy, and on his own showing, he did not witness the incident. Therefore, when the case rests upon the solitary testimony, it must be true, reliable and trustworthy. When the evidence of P.W.4 is put in the category of wholly reliable, then there is no difficulty in accepting his evidence and the conviction can be maintained even without any corroboration. 12. It is not in dispute that P.W.4 is an R.M.P. doctor practising at Kitumala Village of Chintapalli Mandal by the date of the incident. Admittedly, he was having a scooter. According to P.W.4, the deceased and himself went to Munasabhabanda at about 8.30 am and consumed ‘Jeelugu kallu’. Thereafter, they had gone to Sikayabanda village. According to the prosecution, the incident has taken place at that place at about 11 am. The conduct and behaviour of P.W.4 after the incident is very unnatural. He did not try to stop the accused while he was beating the deceased nor give any treatment to the deceased, he being a Registered Medical Practitioner nor tried to take the deceased to the hospital at Narsipatnam. If really the accused was the assailant, P.W.4 would have gone to the house of the deceased and informed about the incident to the inmates and relatives of the deceased. There is no other reason for him to leave the village. He did not go to Police Station to report about incident. He was not examined by the police immediately after the incident. He was examined on 01.11.2004 i.e., nearly one month after the incident. No explanation or reason was forthcoming on behalf of the prosecution as to why he was not examined immediately. The silence on the part of P.W.4 in not informing the incident to anybody including the police gives rise to suspicion that whether he was really present at the time of the incident or not. The case of the accused is that the deceased was having affair with the kept mistress of P.W.4 and therefore, it is P.W.4, who attacked the deceased and caused injuries resulting his death and to exculpate himself from the case, P.W.4 falsely implicated the accused as the assailant of the deceased. That possibility cannot be ruled out because of the long silence on the part of P.W.4 in not informing to anybody. Therefore, the evidence of P.W.4 cannot be put in the category of wholly reliable. In such a case, his evidence requires corroboration, with regard to the material particulars of the case. 13. The evidence of P.Ws.3 and 5 would go to show that the accused was present at the time of the incident, but they did not specifically state that the accused had caused injuries to the deceased. Mere presence of accused at the time of incident does not lead to draw an inference that the accused is the assailant of deceased 14. There must be some motive for the accused to commit murder of the deceased. No doubt, motive is not an integral part of the crime but at the same time, it is an aid and assessment of criminality. P.W.1 has categorically stated that his father was not having any toddy trees in the village of the accused and that in respect of those toddy trees, there were no disputes existing between the deceased and the villagers of the accused. Therefore, when the deceased was not having any trees in the village of Sikayabanda, the deceased and P.W.4 going to that place for the purpose of consuming ‘Jeelugu Kallu’ does not arise. 15. Though Gammeli Raja Rao (List of Witnesses No.9), who is native of Sikayabanda village and who was present, according to prosecution, at the time of the incident, was cited as a witness to speak about his presence at the scene of occurrence and witnessing the accused beating the deceased, but he was given up without there being any explanation from the prosecution. Therefore, the prosecution purposefully and wantonly withheld an important witness whose presence at the scene of occurrence is quite probable and natural and an adverse inference can be drawn under Section 114 (g) of the Evidence Act in this regard. If it is drawn, the presumption is that the prosecution withheld a witness with a view to suppress the evidence. 16. It is stated in the First Information Report that a doctor informed the wife of the deceased, Vanuma Bangaramma, but she was not examined to speak what was the nature of information given to her and the name of the assailant of the deceased. 17. Therefore, for the aforesaid reasons, the trial Court has not placed any reliance on the evidence of P.W.4 so as to base conviction after recording the reasons for not placing reliance on such evidence. The trial Court rightly acquitted the accused. As there are no compelling and substantial reasons, we are unable to interfere with the judgment dated 31.03.2005 in S.C.No.12 of 2005 on the file of the IX Additional District & Sessions Judge (Fast Track Court), Visakhapatnam. 18. The appeal is devoid of merits and is, accordingly, dismissed. ____________ (K.C.BHANU, J) ______________________ (N.R.L.NAGESWARA RAO, J) 29th December 2010 RRB