HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.167 of 2008 JUDGMENT:(Per Hon’ble Sri Justice R.Kantha Rao) This Criminal Appeal is filed against the judgment dated 25-09-2007, passed by the I Additional Sessions Judge, Mahabubnagar, in Sessions Case No.670 of 2006. The appellants 1 to 3 were tried by the learned Sessions Judge for the charge under Section 302 IPC, were found guilty, convicted for the said charge and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.200/- each, in default, to undergo simple imprisonment for six months. 2. The prosecution case, in brief, is as follows: P.W.1 is the Sarpanch of Edganapally village. He is the brother-in-law of the deceased viz., Yerupula Yadaiah who is a native of Kodgal village. On 06-09-2006, he was informed by the villagers of Yarampally village that his brother-in-law was beaten to death with sticks. On receiving the said information, he rushed to Yarampally and saw the dead body of his brother-in-law with injuries on the back. Thereafter, he went to Balanagar police station and gave Ex.P-1 report. Enquiries made by him revealed that two or three days prior to the incident, the deceased quarreled with his wife Balamani, he beat her and thereafter, Balamani went to the house of her father’s brother, at Hyderabad and stayed there. Subsequently, the deceased approached his mother-in-law and insisted upon her to reveal the whereabouts of his wife. As she did not respond, he beat her. A-2 and A-3 are paternal uncles of Balamani and A-1 is the son of A-3. A-3 went to Erronipally from his village along with A-1 and A-2 and came to the house of the deceased, and dragged the deceased from his hut, pushed him to the drainage channel and thereafter all of them beat the deceased with sticks indiscriminately. The deceased on receiving severe injuries died on the spot. Thereafter, a report was lodged by P.W.1 in Balanagar police station. The Sub Inspector of Police, Balanagar police station registered a case in Crime No.245 of 2006 under Section 302 IPC and commenced investigation. P.W.12, the Circle Inspector of Police, Shadnagar police station, took over investigation from the Sub Inspector of Police, conducted the remaining investigation and after completing investigation, filed the charge sheet against A-1 to A-3. 3. During the course of the trial, the prosecution, in order to establish the guilt of the accused for the offence punishable under Section 302 IPC, examined P.Ws.1 to 12 and marked Exs.P-1 to P-10. On behalf of the accused, Ex.D-1 was marked, but none was examined. 4. P.Ws.7, 10 and 11, who are the material witnesses of the prosecution, did not support the prosecution case and they were treated hostile. The learned trial Court mainly rested on the evidence of P.Ws.4 and 5 and P.W.12, and convicted the appellants for the offence under Section 302 IPC and sentenced them to undergo punishment as mentioned above. 5. The point for determination before us in the circumstances as to whether the learned trial Court was correct in relying on the evidence of P.Ws.4, 5 and P.W.12 to record conviction against the appellants. 6. Smt. Vasundhara, learned counsel for the appellants, contended that the evidence of P.Ws.4 and 5, who are said to be eye witnesses, according to the prosecution, is highly discrepant and inconsistent on material particulars, the trial Court ought to have rejected their evidence and acquitted the appellants for the offence under Section 302 IPC in stead of convicting them. 7. On the other hand, the learned Additional Public Prosecutor, appearing for the State, would submit that even though there are minor discrepancies in the evidence of P.Ws.4 and 5, learned trial Court is justified in ignoring the said discrepancies and convicting the appellants. The learned Additional Public Prosecutor, therefore, seeks to confirm the conviction and sentence recorded against the appellants. 8. P.W.9, the Deputy Civil Surgeon in Community Health Centre, Shadnagar, conducted autopsy on the body of the deceased on 07-09-2006, and noticed the following external injuries: 1. Bleeding from right ear. 2. Multiple contusions present on various diameters present over right side of the face. 3. Contusion 3 x 2 cm. Over left cheek eminence. 4. Laceration 5x5x5 cm. Over left eye brow. 5. Abrasion over the whole left shoulder and lert elbow. 6. Contusion 6x4 cm. over left fore arm. 7. Contusion 6x4 cm. over right posterior aspect of right elbow. 8. Contusion 6x4 cm. over right fore arm. 9. Contusion 8x1 cm. over right shoulder. 10. Contusion 2x1 cm. over right shoulder. 11. Multiple/verticle stick pattern contusions all over the posterior aspect of the chest abdomen, waist, sides of the chest and both buttocks. 12. Stick pattern contusions 15x1 cm. left side of the chest anterior aspect behind nipple. 13. Swelling of the neck with contusion 3x1 cm. over the chin. 14. Contusion 4x1 cm. over right anterior aspect of the chest below nipple to the lambar region. 15. Contusion 3x1 cm. over left knee. 16. Laceration 2x5x5 cm. over left shin. 17. Laceration 2x5x5 cm. over left shin. 18. Contusion of the left parital region of the scalp.” P.W.9 gave the opinion that the injuries are possible with sticks. According to him, the cause of the death was because of shock due to multiple injuries. 9. Apart from relying on the evidence of P.Ws.4 and 5 and other witnesses, the prosecution sought to establish recovery of sticks in pursuance of the disclosure statement made by the appellants in the presence of P.Ws.10 and 12. P.W.10, the mediator, whom the prosecution examined to prove the factum of recovery of sticks, did not support the prosecution case and he merely stated that at the instance of Sub Inspector of Police, he signed in the Panchanama, but no material was seized in his presence. 10. In the absence of evidence of any independent witness, it is quite unsafe to rely on the testimony of P.W.12, the investigating officer, as regards the factum of recovery of M.Os.1 to 3, sticks, allegedly recovered in pursuance of the disclosure statement made by the accused. Therefore, we consider that the prosecution failed to establish the factum of recovery of sticks. 11. The other witnesses being turned hostile, the only evidence remains to be considered is that of P.Ws.4 and 5, who are said to be the eye witnesses, according to the prosecution. 12. P.Ws.4 and 5 are brothers. P.W.4 stated in his deposition that the incident happened on the date of Vinayaka Chavithi immersion day. On that night, after completion of immersion ceremony, he was returning to his house from Kallepally, and found a group of persons in front of the houses of one Chary and Harichand of his village, and he proceeded there and found Yadaiah lying dead in front of his house. He further deposed that even while he was witnessing also, A-1 dealt two blows on the back of Yadaiah with a stick, by which time, Yadaiah already found dead. He told A-1 not to beat the person who already died and also warned him that he would have to face serious consequences. He further deposed that A-2 and A-3 were also present and he left the place of occurrence and went to his house. 13. On the other hand, P.W.5 stated in his deposition that at mid night, while he was at his house, he heard some shouts loudly and some people saying somebody was being beaten. He also heard hue and cry of some persons. Immediately he along with his brother Pedda Yadaiah (P.W.4) came out of the house and saw the deceased being beaten by A-1 to A-3 with sticks near the road. He further stated that A-1 to A-3 warned him and P.W4 not to go near the deceased and therefore, they did not interfere and returned back to their house. 14. Thus, the evidence of P.Ws.4 and 5 is highly discrepant on the material particulars and mutually inconsistent. As could be seen from the evidence of P.W.4, he did not go along with P.W.5 to the place of occurrence whereas P.W.5 says that both of them together started from the house and proceeded to the place of occurrence. Further, the evidence of P.W.4 indicates that by the time, he went to the place of occurrence, the deceased died and A-1 beat twice with a stick on the deceased and on seeing this, he told A-1 not to beat the deceased who was already dead. But P.W.5 stated in his evidence that by the time he and P.W.4 together went to the place of occurrence they saw A-1 to A-3 beating the deceased with sticks and the A-1 to A- 3 warned them not to interfere and they returned back to their house. 15. The evidence of P.Ws.4 and 5 does not inspire any confidence. Their evidence is totally inconsistent as to the manner of their proceeding to the place of occurrence and witnessing the incident. The above inconsistent evidence creates any amount of doubt as to whether P.W.4 and 5 witnessed the incident at all or whether they went to the place of occurrence just like the other villagers, who proceeded to the venue of occurrence after the deceased was beaten to death. Basing on this kind of evidence, in our view, it is quire unsafe to record a conviction for the charge of murder against A-1 to A-3. 16. The learned trial Court it seems has not properly scrutinized and evaluated the evidence and had fallen into error in convicting the appellants for the offence under Section 302 IPC basing on the evidence of P.Ws.4 and 5. 17. We are of the view that P.Ws.4 and 5, as is evident from their highly inconsistent evidence given by them before the trial Court, are not really present the place of occurrence at the time of incident and as could be seen from the evidence, the place of occurrence is at variance and it is not known whether the incident actually took place in front of the hut of the deceased or near culvert. For all thesle reasons, we set aside the conviction and sentence passed against the appellants by the learned trial Court. 18. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants (A-1 to A-3) for the offence punishable under Section 302 IPC, by the learned I Additional Sessions Judge, Mahabubnagar, in Sessons Case No.670 of 2006, dated 25-09-2007, are hereby set aside and they are acquitted of the said offence. They shall be set at liberty forthwith, if they are not required in any other crime. The fine amount, if any paid by the appellants (A-1 to A-3), shall be refunded. _______________________ A. GOPAL REDDY, J __________________ R. KANTHA RAO, J Date: 21-11-2011 KVR