THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.339 of 2007 Date: 31.12.2009 Between : Narsing Krishna Reddy (A-1), S/o. late Rami Reddy, aged 30 years, R/o. Narasapuram village, Veldurthy Mandal and 3 others. … Appellants and State of A.P., through Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.339 of 2007 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard Sri C. Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the appellants, as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellants are Accused Nos.1 to 4 in the Sessions Case before the Court below. 3. This criminal appeal is directed against the judgment, dated 19.02.2007, in Sessions Case No.192 of 2006, passed by the IV Additional Sessions Judge, Kurnool, convicting the A.1 to A.4 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (for brevity “IPC”) and sentencing to suffer Rigorous Imprisonment for life and to pay a fine of Rs.1,000/- each, in default to suffer Simple Imprisonment for one month each. 4. The case of the prosecution, in brief, is that on 3.9.2005 at about 7-45 p.m., near the Chouti Vanka, at a distance of about ½ k.m. towards north from the village Rathanapalli, A.2 and A.4 attacked the deceased Boyina Narayana Reddy with sticks and when the deceased fell down, A.1 and A.3 picked up stones and all of them inflicted injuries to the deceased on his face and head with sticks and stones and caused his death. 5. P.W.1 Boyina Krishna Reddy and the deceased Narayana Reddy are brothers and residents of Rathanapalli village. On 3.9.2005 the deceased, his wife P.W.2 and his brother P.W.1 went to their fields and returned to their house in the evening. At about 7-00 p.m., A.1 went to their house and asked P.W.1 to take him to Narsapuram on his motor cycle. P.W.1 told A.1 that he cannot come as he has no work in Narsapuram. Then A.1 requested P.W.1 atleast to send his brother i.e., the deceased along with him to drop him at Narsapuram on his motor cycle. So P.W.1 sent the deceased along with A.1. On the same day at about 8-30 p.m., P.W.3 an auto driver went to the house of P.W.1 and informed his family members that the deceased was lying with bleeding injuries near Choutivanka and his motor cycle was also lying near the Vanka. Immediately, P.W.1 and his brother-in-law P.W.4 went to the scene of offence in the auto of P.W.3 and found the dead body of the deceased in the ditch. They brought out the dead body and found bleeding cut injuries on the dead body. Thereafter P.W.1 went Veldurthy Police Station and gave Ex.P.1 report at 11-00 p.m. P.W.15 Inspector of Police on receipt of phone call from A.S.I., Veldurthy, reached the police station at 1-30 a.m. He received the express FIR and took up investigation. On the morning of 4-9-2005, P.W.15 held inquest over the dead body in the presence of P.W.12 and P.W.14 from 7-00 a.m. During the inquest, he recorded the statements of P.Ws.1 to 5. P.W.15 noticed a light wheat coloured turkey towel (MO.1) near the dead body. He deputed A.S.I., Veldurthy to the village for getting one of the dhobis to identify the towel (MO.1). He brought P.W.6, a dhobi, who identified the turkey towel as belonging to A.2. Thereafter he went to the village and examined P.Ws.7, 9 and 10. On 5.9.2005, P.W.15 secured the presence of P.Ws.8, 11 and 12 and recorded their statements. On 18.9.2005 P.W.15 received information about the absconding of the accused. He arrested them near a temple. A.2 and A.4 were holding sticks and they were seized. 6. P.W.14, Professor of Forensic Medicine, Kurnool Medical College, conducted autopsy over the dead body on 4.9.2005 at 2-40 p.m., and issued the postmortem certificate Ex.P.5. According to the doctor, the deceased died due to multiple injuries. After completion of investigation and necessary formalities, the police laid the charge sheet against A.1 to A.4 for the offence under Section 302 IPC. 7. When the charge was framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 8. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P-9, besides marking material objects MOs.1 to 10. On behalf of the accused, none were examined and no documents were marked. 9. The Court below, after considering the entire material including the evidence, both oral and documentary, available on record, found all the accused guilty of the offence under Section 302 read with Section 34 IPC and accordingly convicted and sentenced them as stated above. Aggrieved by the same, A.1 to A.4 preferred the present criminal appeal. 10. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the accused contended that the entire case of the prosecution rests upon the evidence of P.Ws.7, 8 and 10, who are the eye witnesses, and erred in relying upon the evidence of P.Ws.7and 8, who were highly interested witnesses. He also contended that the other witnesses i.e., P.Ws.1 to 4 were examined only to establish the fact that the deceased was last seen in the company of A.1. 11. On the other hand, the learned Public Prosecutor appearing for the respondent-State sought to sustain the judgment of the Court below on all aspects and prays to dismiss the appeal. 12. Now, the point that arises for consideration, in this criminal appeal is whether the Court below has rightly appreciated the evidence of P.Ws.7, 8 and 10 in order to record the order of conviction and sentence for the offence under Section 302 read with Section 34 IPC against the appellants/A.1 to A.4? 13. It is the specific case of the prosecution that A.1 approached P.W.1 first to take him to Narasapuram on his motor cycle, but P.W.1 refused to take him on the ground that he has no work at Narasapuram. Therefore, A.1 requested P.W.1 atleast to send his brother, who is the deceased, along with him to drop at Narasapuram. When that is the case of the prosecution, it is to be seen that A.1 is the only person who approached P.W.1 and insisted for the company of P.W.1 and on refusal by P.W.1, as a second choice A.1 asked for the company of the deceased, who is the brother of P.W.1, to take him to Narasapuram on his motor cycle. Therefore, what is obvious is that, firstly; the deceased was never the target of A.1 and, secondly, all the other accused were not seen together in the company of A.1 nor they were in the company of A.1 when a request was made to P.W.1 atleast to send the deceased along with A.1. 14. It is further significant to note that when the prosecution has been relying on the evidence of the eye witnesses i.e., P.Ws.7, 8 and 10, the theory of ‘last seen together’ fades into irrelevancy. Therefore, the case of the prosecution has to be tested on the anvil of the oral testimony of P.Ws.7, 8 and 10. 15. P.W.7, who is a resident of Rathanapalli village, deposed that on the date of incident, in the evening, while she along with his son and P.W.8 was coming in an auto from Veldurthy it became dark and when they reached near the Rathanapalli village, at the outskirts of the village, they saw all the accused were beating the deceased with sticks and stones and eventually the deceased died. She further stated that she could see the incident in the light of the auto. 16. At this juncture, it is to be remembered that the incident had taken place in the dark and was seen in the light of the auto, particularly when four persons were perpetrating the offence. It is rather difficult for any person to watch in the light of the auto to see the entire incident and identify all the persons, who committed the offence. Even assuming that P.W.7 had seen the commission of offence at the hands of the accused, in normal course, the same should have been informed to the villagers immediately. But, nothing had happened in this case. P.W.7 stated that out of fear she did not disclose to anybody about the incident. After coming back to the village, she went to the borewell to fetch water, she went outside the house to attend the calls of nature, she went to the market to buy vegetables and also met several persons of the village at the borewell. What is significant to be noted is in all those places when this witness came across several persons, she did not reveal about the commission of offence to anybody. 17. It is to be further seen that the police had recorded her statement only after three days. In this regard, in fact, the Court below had pointed out that there is no source for the police to approach P.W.7. In such a case, it is hard to believe that P.W.7 was really present at the time of commission of offence. 18. P.W.8, who is also a resident of the village, spoke almost in the same terms as was spoken to by P.W.7, but only deviated on small aspects. While P.W.7 stated that she witnessed the incident in the light of the auto, this witness stated that he had seen the commission of offence in the light of the auto and also in the light of electric light glowing near the place of occurrence, that too at the outskirts of the village. Coming to the conduct of this witness, the credibility that was attached to P.W.7, the same can be attached to this witness also for the reason that on all the material aspects, the evidence of this evidence is the same as that of P.W.7. 19. P.W.8 further stated that he was a farm servant of P.W.1 as on the date of incident and prior to that he worked as Tractor driver of the deceased. This fact makes it clear that he has reasonable proximity with the deceased as well as P.W.1, who is the brother of the deceased. Therefore, in normal course, it is to be reasonably expected that he owes some sense of responsibility to the deceased and P.W.1, and despite that he did not behave as an ordinary prudent person and, on the contrary, he was attending his normal and routine duties till the police approached him and recorded his statement. Even in this case also it is not known as to how the police could approach him and examine. In other words, what prompted the police to examine this witness is not known. 20. From the above, what appears is, there is consistency in the evidence of P.Ws.7 and 8. But, we are of the considered view that the consistency in the testimony of the witnesses is not sufficient in all cases. Trustworthiness and probabilities also would play a vital role while assessing the situation and drudging out the truth. As already pointed out, the conduct on the part of P.Ws.7 and 8, who were cited as eye witnesses and whose evidence was heavily relied upon by the prosecution, is not probable and hard to believe. 21. Further more, from the evidence of P.W.10, the son of P.W.7, who was also cited as an eye witness, turned hostile and nothing could be elicited from this witness in favour of the prosecution. 22. Therefore, the only option left for this Court is either to believe or disbelieve the testimony of P.Ws.7 and 8. For the reasons assigned by us in the above paragraphs, we feel that the evidence of P.Ws.7 and 8 is beyond the scope of probability and the same is unreliable. In view of the said circumstances, we cannot arrive at a definite conclusion that the accused alone are responsible for the death of the deceased. The conduct on the part of P.Ws.7 and 8 throw any amount of doubt in the mind of this Court and as a consequence thereof the accused are entitled for the benefit of doubt. 23. The evidence of the other witnesses does not really throw any light on the facts of the case nor their evidence is capable of changing the views and conclusions of this Court. 24. In the result, the criminal appeal is allowed setting aside the impugned judgment, dated 19.02.2007, in S.C.No.192 of 2006, passed by the IV Additional Sessions Judge, Kurnool, and the appellants-A.1 to A.4 are acquitted of the offence with which they were charged and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants shall be refunded to them. _________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE R. KANTHA RAO 31.12.2009 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.339 of 2007 31.12.2009 (Msr)