HONOURABLE SRI JUSTICE V.ESWARAIAH AND HONOURABLE SRI JUSTICE P.SWAROOP REDDY CRIMINAL APPEAL No.65 of 2008 Between: State of Andhra Pradesh, rep. By Public Prosecutor. …. Appellant and Gutha Sreenivasulu and 19 others …. Respondents This court made the following: HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE P. SWAROOP REDDY CRIMINAL APPEAL No.65 of 2008 JUDGMENT: (per the Hon’ble Sri Justice P.Swaroop Reddy) This is an appeal against the judgment of the learned Additional Sessions Judge, Hindupur in Sessions Case No.509 of 2004 and the State is the appellant. 2. Out of the 20 accused in the case, A4 died during the trial and the case against him abated. The case against A5, A6, A7, A10 and A11 was split up and the remaining accused faced trial. 3. The prosecution case is that one H.V.Chalapati Rao (hereinafter referred to as “the deceased”) was a landlord owning agricultural lands in an extent of Acs.100-00 at Nallaguntapalli village and the said land was being cultivated by some Harijans of Chinaganiapalli village for the past several years. A1 purchased land on his wife’s name and tried to evict the said Harijans, but they refused to vacate. A1 filed a civil suit through his wife vide O.S.No.333 of 1886 on the file of Junior Civil Judge, Kadiri. In that litigation, the deceased supported the cause of Harizans, ultimately the suit was dismissed. Since then A1 bore grudge against the deceased and was planning to kill the deceased. A2, A3, A8 & A9 are the sons of A1, A4 is resident of Allugundu village and the other accused are associates of A1. 4. On 16.06.2000 at about 08:30 PM, the accused formed themselves into an unlawful assembly with the common object of killing the deceased and they entered the house of the deceased armed with battle axes, hunting sickles and sticks etc. Some of them stood outside guarding the entry and some other accused entered the house of the deceased who was sleeping in the bed room. The accused entered the house attacked and killed the deceased. P.W.1 wife of the deceased was chit chatting with P.W.6 at the entrance of the house and they were not allowed to move. P.W.2 was watching T.V. in the hall of the house sitting along with his wife. He was attacked by some accused and he received injuries. After the incident, P.W.2 was shifted to Bagepalli hospital. Thereafter P.W.1 gave complaint to the police on the basis of which a case was registered and investigation was taken up. After completion of the investigation and on receiving all relevant documents, the Inspector of Police filed charge sheet. 5. After filing of the charge sheet, charges under sections 148, 450 and 302 r/w 149 IPC were famed against the accused and the accused pleaded not guilty and claimed to be tried. 6. On behalf of the prosecution, P.Ws.1 to 13 were examined and Exs.P1 to P8 were marked. After the evidence of the prosecution witnesses was closed, the incriminating substance in the evidence of these witnesses were put to the accused and they pleaded not guilty. On behalf except marking Ex.D1, no oral evidence was let in. 7. Of these witnesses P.W1, the wife of the deceased, is almost an eye witness to the incident. In her evidence, she states that she was sitting infront of the house along with P.W.6 and the accused entered the house and completed their work. P.W.2 is the injured eye witness to the incident being the son of the deceased who was watching T.V. along with his wife P.W.5 in the hall of the house and when he intervened some of the accused allegedly attacked him causing him injuries. P.W.3 is another son of the deceased who was working elsewhere and he was coming home while P.W.2 was being taken to the hospital in a jeep and he met them on the way and he accompanied P.W.2 to the hospital at Bagepalli. P.W.4 is a resident of the village and who is residing near the house of the deceased. According to him his house was locked from outside at the time of the incident and after the lock was opened, he came out and found the deceased dead and P.W.2 with injuries. He further stated that he took P.W.2 in his cart to the hospital and on the way he was shifted into a jeep. P.W.5 is the daughter-in-law of the deceased, being wife of P.W.2. According to her, three persons entered the house and into the room of the deceased and killed him. She stated that A1 to A3 were the said persons. P.W.6 is the sister of P.W.5. According to her, while herself and P.W.1 were chitchatting, three persons entered the house, one person was standing at the gate, two persons were at the main gate. They heard some noise from inside and when they tried to go inside, the persons standing there threatened them to stab and not to go inside. They were wearing masks and she cannot identify those persons. P.W.7 is a neighbour who heard the cries of the deceased. According to him, he took P.W.2 to the bullock cart. P.W.8, who is a neighbour of the deceased, deposed that he found the deceased dead and P.W.2 with injuries. He shifted P.W.2 on a bullock cart. He stated that he has not seen the victims who attacked on them and he was declared hostile. P.W.9 is an inquestdar. P.W.10 is a medical officer, who conducted autopsy over the dead body of the deceased. According to him the death of the deceased was homicidle. P.W.11 is another medical officer who treated P.W.2. P.W.12-Panchayat Secretary, who has attested some panchanama turned hostile, stating that he did not remember what he has signed. P.W.13 sub-inspector of police stated that he received the complaint given by Subbamma from the Circle Inspector of Police and registered the F.I.R. He did not state anything further about investigating the case. According to him the inspector of police has investigated the case. 8. Thus as the F.I.R. did not reveal the names of the assailants, who are admittedly known to the witnesses P.Ws.1 and 2; as there was delay in the F.I.R.; and the evidence of the eye witnesses could not be relied upon as there was no consistency, the learned trial Judge acquitted the accused. As against the same, the State preferred the present appeal. 9. Now the point for consideration is whether… “Whether the prosecution proved the guilt of the accused beyond all reasonable doubt?” 10. As already referred the names of the assailants are not found in the F.I.R. Admittedly, the assailants were known to P.W.1 wife of the deceased and P.W.2 injured eyewitness, who is no other than the son of the deceased. P.Ws.3, 4, 5 and 6 perhaps may not be knowing the names. P.Ws.1 and 2 definitely knew the names of the assailants. The complaint of P.W.1 the wife of the deceased is that, though she gave the names of the assailants, the Inspector of police did not mention their names in the F.I.R. It is not known whether this allegation is true or not, as by then perhaps the C.I. was not in the picture at least on record, as the F.I.R. was received by P.W.13-Sub- Inspector of Police and thereafter the Circle Inspector of police has taken up the investigation. Nodoubt the names of all the assailants need not be mentioned in the F.I.R., but when they are known to the eye witnesses who are none other than the wife and son of the deceased when their names are not mentioned in the F.I.R., that F.I.R. has to be looked with suspicion. Added to that the names of the assailants are not even found in the inquest report. No explanation is given for not mentioning the names of the assailants in the F.I.R. If there was collusion or negligence on the part of the investigating agency, the accused would naturally get benefit of the same. 11. Further more, there is no consistency between the evidence of P.Ws.1, 2, 5 and 6, with regard to the number of persons that have entered the house and persons that have actually participated in the offence. P.W.1 says that A1, A2, A3 and A5 entered inside the house armed with sticks and axes and hacked her husband, A9 was standing at them and threatened them not to enter the house. P.W.2 the son of the deceased says A1 was standing there, Chandra Sekhar-A2 and Jaganmohan-A3 were armed with sickles and axe attacked himself and his father. He did not speak about A5 and A9. May be he could not see A5 and A9 that were allegedly present outside the house where P.Ws.1 and 6 were present, but he did not refer to the presence of A5 about whom P.W.1 spoke. P.W.2 has also spoke about the presence of A4 about whom P.W.1 did not state. P.W.5, wife of P.W.2, stated that when she was watching T.V. along with P.W.2 they heard noise from her father-in-law’s room and that three persons entered the house and the room of her father-in-law and killed him. She did not mention the names of those persons. P.W.6 stated that three persons entered the house and according to him they were wearing masks about which the other witnesses did not speak. Further, as contended by the learned Public Prosecutor in ordinary circumstances, the discrepancies found in the evidence of P.Ws.1, 2, 5 and 6 could not have been taken seriously in case there was supporting evidence for the prosecution case and the prosecution case was otherwise acceptable. But in this case as already referred, the F.I.R. does not contain the names of the assailants though they are known to the complainant and the inquest report also does not contain the names of the assailants. It is not known at what stage these witnesses P.Ws.1, 2, 5 and 6 have spoken about the names of the assailants, it must have been only at the stage of recording of their statements when they were examined under Section 161 Cr.P.C. Further, the Inspector of Police was not examined at all. As such it is not on record as to when exactly statements of these witnesses under Section 161 Cr.P.C. were recorded to give atleast some credence to their version. In the absence of the details with regard to the names and participation of the assailants in the F.I.R. and in the inquest report, it is not at all a case that can be interfered by this court at this stage of appeal against acquittal. We see no merit in the appeal and the same is liable to be dismissed. 12. In the result, the Criminal Appeal is dismissed confirming the judgment of the trial court. ________________ V. ESWARAIAH, J _________________________ P. SWAROOP REDDY, J December 20, 2010 LMV