IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) This the 2nd day of December, Two Thousand and Eleven PRESENT HON'BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL No.226 and 472 of 2008 Between: Seelam Srirama Murthy and others … Appelants And The State of A.P., rep. by its Public Prosecutor … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON'BLE SRI JUSTICE N.RAVI SHANKAR CRIMINAL APPEAL No.226 and 472 of 2008 COMMON JUDGMENT: (per the Hon’ble Sri Justice A.Gopal Reddy) Appellants/A1 to A5 were put on trial for the offences punishable under Sections 148 and 302 IPC for causing the death of Kadiyala Vishnu, S/o.Nageswara Rao, resident of Reddy colony, Tadikalapudi (hereinafter referred to as ”the deceased”) with common intention at 10:50 PM on 06.03.2003 at the house of A1 situated near SS-I electrical transformer adjacent to Tadikalapudi, in Sessions Case No.28 of 2004 on the file of II Additional Sessions Judge, West Godavari, Eluru. The learned Sessions judge convicted A1 to A5 for the offence under Section 148 IPC and sentenced them to undergo Simple Imprisonment for a period of two months each and to pay a fine of Rs.100/- each; A1 to A4 for the offence under Section 302 IPC and sentenced them to undergo Life imprisonment and to pay a fine of Rs.100/- each, in default Simple Imprisonment for one month; and A5 for the offence under Section 302 r/w 149 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.100/- in default simple imprisonment for one month. Challenging the said conviction and sentence, Accused Nos.1 to 5 filed Criminal Appeal No.226 of 2008 and Accused No.4 filed Criminal Appeal No.472 of 2008. 2. The prosecution story as unfolded during the course of trial, is briefly stated as follows:- A1 to A4, P.Ws.1 to 4 and the deceased were close relatives and residents of same village. A2 and A3 are sons of A1. A4 is son- in-law of A1, A5 is staying in the house of A1 and is running a repairing shop. The deceased is the cousin of P.Ws.1 and 2. There were prior disputes between the deceased and the accused with regard to boundary of land. On 06.03.2003 afternoon there was a feast at Sivalayam where the food was served to the villagers. P.Ws.1 and 2 and the deceased sat in a row to have meals where A1 to A3 were serving the food and there ensued some galata. P.W.1 questioned A1 to serve curries. Then A1 to A3 threatened him and the deceased with dire consequences and uttered that they will kill the deceased and P.W.1 on that day itself. While so, at 10:30 PM on the same day P.W.1 and the deceased went to Sivalayam for witnessing the cinema, which was exhibited in front of Sivalayam. After witnessing the cinema for about 20 minutes the deceased informed that he is getting sleep. On that P.W.1 and the deceased started back to their houses. While they were proceeding, A1 to A5 were found waiting at the house of A1 in Tadi Kollapur village. On seeing P.W.1 and the deceased they came across and stopped them. They uttered that nobody would come to their rescue even if they kill them. So saying A3 beat the deceased with an iron rod on the back side of his head. On receiving the said injury, the deceased fell down. A2 beat the deceased with an iron pipe on his legs. A1 and A4 beat the deceased with sticks on his body and poked him with the sticks then A1 to A5 dragged the deceased into the varandah of A1’s house. On hearing the cries P.Ws.2, 7, 8 and 10 came there and witnessed the incident. Thereafter P.W.1 went to the house of P.W.12 and informed the incident and got drafted a report through P.W.12 and from there P.Ws.1 to 3 took the deceased in a jeep to Tadikalapudi police station. On presenting the Ex.P1 report P.W.17-Sub-Inspector of Police registered the crime for the offence under Section 307 r/w 34 IPC and forwarded the F.I.R. under Ex.P18 to all the concerned and took up investigation. During the course of investigation, P.W.17 recorded the statement of P.W.1; visited the scene of offence; examined the witnesses; prepared scene of observation report under Ex.P17 and rough sketch under Ex.P19; got photographed the scene of offence; on receipt of altered F.I.R., he altered the section of law to Section 302 IPC and issued Ex.P21 altered F.I.R; visited the Government hospital; conducted inquest over the dead body of the deceased in the presence of mediators; prepared inquest report; sent the dead body for post mortem examination; arrested the accused and remanded the accused to judicial custody. P.W.18-Inspector of Police, Chintalapudi took up further investigation. During the course of investigation, P.W.18 secured some of the witnesses and examined them and recorded their statements. After receiving all the relevant documents, he filed the charge sheet. 3. In order to prove the case of the prosecution, P.Ws.1 to 18 were examined and Exs.P1 to P28 were marked. On closer of the evidence, the accused was examined under Section 313 Cr.P.C. on the incriminating evidence adduced by the prosecution, for which the accused denied the same and not opted to examine any witness on his behalf, but marked Exs.D1 to D3. 4. Learned sessions Judge on appreciation of the oral and documentary evidence accepted the evidence adduced by the prosecution as trustworthy and that the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and accordingly convicted and sentenced them as aforementioned. 5 . Sri Challa Srinivasa Reddy, learned counsel for the appellants contends that P.Ws.1, 3 and 7, who are projected as eyewitnesses, are planted by the prosecution and their evidence suffers from contradictions. The deceased is the cousin of P.Ws.1 and 2 and hence they are interested witnesses. P.W.3 is the wife of the deceased. Though P.W.7 is an independent witness according to the prosecution, he improved his version in the court, which he has not stated at the earliest point of time and the omissions which have been elicited from the evidence of the investigating officer-P.W.17, itself shows that all the four witnesses are not eye witnesses to the incident. The proseuciton failed to establish the place of offence and it was shifted from the road to the Varandah of A1’s house. P.Ws.6, 8, 9 and 10 are witnesses reached the spot aftermath of the incident, whereas P.Ws.4 and 5 were examined to prove the wordly quarrel between accused and P.Ws.1 and 2 and the deceased at Sivalayam in the afternoon. Among them P.Ws.4 to 6, 8, 9, 10 and 11 were declared as hostile witnesses. Prosecution failed to establish the motive for the accused to kill the deceased. According to the Sarpanch. P.W.12, he drafted Ex.P12 on the next day morning in police station, whereas according to P.W.1, Ex.P1 was drafted on the same night and it was presented by P.W.1 in the police station. The said F.I.R. reached the Magistrate at 03:00 PM on the next day, which is 10 Kms. away, itself shows that the crime was registered by the police on the next day. Therefore, the appellants are entitled for acquittal. 6. Per contra, learned Public Prosecutor sustained the conviction and sentence recorded by the lower court contending that P.Ws.1, 2 and 7 are eye witnesses to the incident and their evidence is consistent with regard to the overtacts attributed against the deceased. Merely because P.Ws.1 and 2 are related to the deceased, their evidence cannot be discarded. Added to the same, the evidence of P.W.7, who is an independent eyewitness, corroborated their evidence and their evidence also claims corroboration with the medical evidence about the injuries sustained by the deceased. Hence, the judgment of the lower court needs no interference. 7. Now the point for consideration is:- Whether the prosecution established the guilt of the accused beyond reasonable doubt? P O I N T:- 8. P.Ws.1, 2, 3 and 7 in this case are projected as eye witnesses to the incident. All the witnesses categorically stated that A3 beat the deceased on the back of the head; A2 beat the deceased on the legs; A1 and A4 with sticks on the deceased; and when the deceased fell down, all the accused dragged the deceased from the road to the varandah of A1 and laid on pial, where A1 and A4 kicked the deceased on legs. 9. P.W.1, brother of the deceased, stated that A2 and A3 are the sons of A1; A4 is the son-in-law of A1; A5 is residing in the house of A1, who is his maternal uncle. On 06.03.2003 at 12:00 noon a galata took place between him and A1 to A3 as he questioned the high handed activity of A1 in asking to serve less curries at the time of lunch. A1 to A3 threatened him and the deceased with dire consequences uttering that they will kill them on the said date itself and get relieved the hurdles they are facing since a long time. At that time Ramba Govardhanarao-P.W.4, Gunakala Naga Muneeswararao- P.W.5 and Kopparthi Nagaraju @ Boppam-P.W.14 were present and witnessed the high handed behaviour of A1 to A3. On the same day at about 10:30 PM himself and the deceased went to Sivalayam for witnessing the cinema exhibited in front of Sivalayam. After witnessing for about 20 minutes, the deceased informed that he is getting sleep. On that himself and the deceased started back to their house. While they were proceeding accused Nos.1 to 5 were found waiting at the house of A1 situated in Tadikalapudi village and they came across and stopped them. They uttered that nobody will come to their rescue even if they kill them there itself. So saying A3 beat the deceased with an iron rod on the back side of the head. On receiving the said injury the deceased fell down. A2 beat the deceased with an iron pipe on his legs. A1 and A4 beat the deceased with sticks on his body and poked him with the sticks. Then A1 to A5 dragged the deceased into the varandah of A1’s house. On hearing the cries, P.Ws.2, 7, 10 and 8 came there and witnessed the incident. From there, himself, P.Ws.2, 3, wife of the deceased took the deceased in a jeep to Tadikalapudi police station and gave a report under Ex.P1 to the police. 10. P.W.2, another brother of the deceased, also deposed in similar lines to that of P.W.1 that himself, P.W.1 and the deceased went to Sivalayam for community lunch, where A2 and A3 were serving the curries to the person in the said lunch hosted at Sivalayam. A1 instructed his sons i.e., A2 and A3 not to serve so much curries to them. On that P.W.1 asked A1 that how can he consume the food without necessary curries. Thereby on the said night at 09:00 PM he went to Sivalayam to witness the cinema. Sometime later, P.W.1 and the deceased came there. 15 minutes thereafter he verified for his brothers, but they were not seen there. On enquiry with the persons present there, he came to know about their departure. On suspicion he got up and proceeded towards the house of A1. On reaching near to the house of A1, he heard the cries at the house of A1. He rushed towards the house of A1 and found A3 causing an injury to the deceased with an iron rod. The deceased fell down on receiving the said injury. On that A2 beat him with an iron pipe on his legs. A1 and A4 poked the deceased with cashew nut sticks. As A1 to A4 were holding the weapons, he did not try to rescue the deceased from their clutches. A1 to A4 with the help of A5 took the dceased into the premises of the house of A1. A1 and A2 caused injuries to the deceased with M.Os.3 and 4. A3 caused injury to the deceased with M.O.1 iron rod. A2 caused injury to the deceased with M.O.2 pipe. In the cross-examination he stated that A5 is residing as a tenant in the house of A1 and attending to the manufacturing of iron almyrahs. He did not state to the police that A1, A3, A4 and A5 dragged the deceased into the premises of A1’s house. In his presence, P.W.1 did not got prepared any report on the night of the incident. 11. P.W.3, the wife of the deceased, deposed that on somebody coming and informing that the galata is going on in front of the house of A1 on the night, while she was in his house, she went and found her husband lying on the pial of the varandah of A1’s house with injuries. A1, A4 and the wife of A1 were found kicking her husband with their legs. When she questioned A5 for kicking her husband with legs, for which he stated that he need not reply. In the cross-examination she admitted that she did not state to the police about coming to know the afternoon incident through her husband. She did not state to the police about her witnessing A1, A4 and the wife of A1 kicking the deceased with legs on the date of incident. She did not state to the police at the time of recording her 161 Cr.P.C. statement that A5 also kicked the deceased with legs. 12. P.W.4, though was declared hostile deposed in the cross-examination that P.W.1 demanded A3 to serve curry at the community lunch arranged at Sivalayam. He did not state to the police that on 06.03.2003 A2 and A3 threatened the deceased and P.W.1 at the community lunch arranged at Sivalayam that they would kill them on the said night itself. P.Ws.4, 5, 6, 9, 10 and 14 turned hostile and did not support the case of the prosecution. 13. P.W.7, who is another eye witness projected by the prosecution deposed that on 06.03.2003 at about 09:30 PM the incident took place at the house of A1. On the said date, while he was proceeding to colony from his house to bring his daughter on hearing the cries from the house of A1, he stopped there and found the deceased, P.Ws.1 and 2 proceeding by the side of the house of A1. At that juncture A1 stopped the deceased and stated that nobody will come to his rescue if he killed there itself. On that A3 caused an injury on the head of the deceased with iron rod; A2 beat on the legs of the deceased with an iron pipe; A1 and A4 beat the deceased with sticks; then A1 to A5 dragged the deceased into the varandah of the house of A1 and beat him there also. In the cross-examination he admitted that he did not state to the police that P.Ws.1 and 2 came to the scene of offence only after the accused took the deceased into the varandah of A1’s house and did not state to the police as in Ex.D1. In Ex.D1 it is stated that ‘Dragged into the house premises of Srirama Murthy(A1) in the meanwhile, Ramakrishna (P.W.1), Trimurthulu (P.W.2) all gathered.‘ 14. P.W.8, who was declared hostile, deposed that while he was returning from Sivalayam after witnessing the cinema, he heard the cries from the house of A1, he went there and found the deceased lying on the road and found P.W.1 and 7 at the said place. P.W.12, the Sarpanch, who drafted Ex.P1 and who was declared hostile, deposed that the hand writing on Ex.P1 is that of him. On 07.03.2003 to the dictation of P.W.1, he drafted Ex.P1 in Tadikalapudi police station and on 09.03.2003 at the directions of the S.I. of police, he drafted the mediatornama. Exs.P9 and P10 are the scene of observation report and the inquest report respectively. Nothing was elicited in his cross-examination to prove the case of the prosecution. 15. P.W.13, the Doctor, who conducted the post mortem examination deposed that he issued Ex.P12 post mortem certificate stating that the deceased died due to shock and haemorrhage due to head injury about 10 hours prior to his post mortem examination. He stated that the head injury referred in Ex.P12 might have been caused with blunt object like iron rod. In the cross-examination, she stated that no injury either external or internal are found over the dead body of the deceased indicating poking or beating with sticks. The external injury No.1 is possible by falling on the road. The injury No.2 is possible if the deceased while falling comes into contract with a heavy object like stone. No injuries are found on the dead body of the deceased indicating of beating with sticks M.Os.3 and 4. 16. P.W.15, is one of the panch witnesses to the scene of observation report under Ex.P9 and inquest report under Ex.P10. P.W.16, is another panch witness to the inquest report Ex.P10 and for the seizure of M.Os.1 to 4 under confessional statements. 17. P.W.17, the Investigating Officer, who registered the crime, deposed that P.W.1 came to the police station along with P.Ws.2, 3 and the injured in a jeep and presented a report at 11:30 PM, on which basis he registered a crime for the offence under Section 307 r/w 34 IPC and after the intimation of the death, he altered the section of law. He admitted in the cross-examination that P.W.1 did not state before him at the time of recording 161 Cr.P.C. statement that A1 threatened him and the deceased at the community lunch, that he will kill them on the said date itself and relieve from the hurdle they are facing since a long time. P.W.1 also did not state that he noticed the accused waiting on 06.03.2003 at the house of A1 after 10:30 PM, while proceeding in front of the house of A1 and that A1 and A5 also uttered that nobody will come to their rescue if they are killed there itself. He also did not state that they informed the incident to the Sarpancha-P.W.12 and got drafted Ex.P1 report and he has not stated in the 161 Cr.P.C. statement and he presented the report on the night of 06.03.2003 itself. His investigation reveals that P.W.3, wife of the deceased came to the scene of offence after completion of the alleged incident. She is not an eye witness to the incident. According to her version, she came to the scene of offence while A1 to A5 were dragging the deceased into the verandah of A1. She did not state in her 161 Cr.P.C. statement that the injuries were caused either by the accused or by the wife of A1 to the deceased in the verandah. Nowhere in her 161 Cr.P.C. statement she referred the name of A5. So also she did not state that A5 also helped A1 to A4 while dragging the deceased into the varandah. P.W.3 stated in her 161 Cr.P.C. statement that she came to the scene of offence on coming to know that the accused beat the deceased and dragged into the verandah of the house of A1. At the time of examination of the scene of offence, he noticed blood stains on tar road i.e.., first scene of offence, but he has not collected either the blood stained pieces of tar road or control pieces of tar road. He did not find any blood stains in the second scene of offence i.e., verandah of the house of A1. He admitted that P.W.3 stated in her 161 Cr.P.C. statement that P.Ws.1 and 2 came to the alleged scene of offence along with others after her arrival to the scene of offence and on seeing them A1 to A4 fled away from the scene of offence. He further deposed that P.W.7 did not state in his 161 Cr.P.C. statement that the incident took place on 06.03.2003 at 09:30 PM, while he was proceeding to colony from his house to bring his daughter and that he saw P.Ws.1 to 3 proceeding by the side of the house of A1. P.W.7 did not state before him that the accused also beat the deceased in the varandah of A1’s house and also threatened him and others if comes to the rescue of the deceased. He further deposed that the house of A1 is a terraced house. P.W.17 did not mention the number of rooms either in the scene of observation report or in the sketch prepared by him. No varandah is shown to the house of A1 in Ex.P19 sketch. 18. From the evidence adduced by the prosecution, there is a discrepancy with regard to the scene of offence. According to the investigation officer-P.W.17, he found the blood stains on the tar road, which is the first scene of offence, but he did not find any blood stains in the second scene of offence i.e., verandah of the house of A1. Ex.P19, sketch prepared by P.W.17, also does not disclose any varandah in front of the house of A1, which is the alleged scene of offence where the deceased was dragged and laid on pial and was attacked with legs. The evidence also discloses that P.W.3 first visited the scene of offence and found A1, A4 and the wife of A1 kicking the deceased with legs. P.W.3 has not stated about the participation of A1 in the said offence. P.W.2 stated that he got drafted the report through P.W.12 on the night itself and was presented on the same night. P.Ws.1, 2 and 3 all the three attributed overt acts of A3, A2, A1 and A4, whereas the evidence of P.W.7 destroys the whole case of the prosecution. He stated that on hearing the cries from the house of A1 he stopped there and noticed P.Ws.1 and 2 proceeding by the side of the house of A1. Whereas P.W.2 stated that 15 minutes thereafter he verified for his brothers, but they were not there. On suspicion he proceeded to the house of A1 and on reaching the house of A1, he heard the cries at his house and rushed towards the house of A1 and found A1 causing the injury. He has not stated that himself and P.W.1 accompanied the deceased as stated by P.W.7. P.W.7 further stated about A1 stabbing the deceased and causing injury. But in the Ex.D1 statement, he has stated that the deceased was dragged into the house premises of A1 in the meanwhile P.Ws.1 and 2 all gathered. P.W.7 further stated that A1 to A5 dragged the deceased into the varandah of house of A1, then P.Ws.1 and 2 brought the jeep P.W.3 also came along with P.Ws.1 and 2 and took the deceased to the Sarpanch and from there to the police station. The evidence of P.W.7 is not believable as there are discrepancies in his evidence with regard to the place of occurrence and it is not corroborated with any other evidence. If we compare the evidence of these eyewitnesses, it is noticed that their evidence is just like a parrot telling about what is taught. Even the omissions and contradictions and improvements are identical, the claim of these eyewitnesses is totally unbelievable when they testified that they had gone to the place of occurrence. 19. The Supreme Court in Syed Ibrahim v. State of A.P.[1] in para 10 considering the power of the Court to separate grain from the choff and truth from the falsehood by referring to the various judgments rendered on the subject earlier, and the ratio laid down in Ugar Ahir and others v. State of Bihar[2] held that where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up and in the process of separation an absolutely new case has to be reconstructed by