THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal Nos.939, 1028 and 1221 of 2009 Date: 30.03.2010 Crl.A.No.939 of 2009 : Between : Epuru Subbareddy (A1) … Appellant And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent Crl.A.No.1028 of 2009 : Between : Pamula Chinna Seshaiah (A3) Pamula Bujjaiah (A4) Mocherla Venkata Ramanaiah (A5) … Appellants And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent Crl.A.No.1221 of 2009 : Between : Peyyala Venkataiah (A2) … Appellant. And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal Nos.939, 1028 and 1221 of 2009 COMMON JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) Since all the above appeals arise out of the same judgment rendered by the trial Court, with the consent of all the parties, they are heard together and being disposed of by this common judgment. 2. Heard Sri C.Padmanabha Reddy, learned Senior Counsel, representing Sri C.Praveen Kumar, learned counsel appearing for the appellant-Accused No.1; Sri K.Suresh Reddy, learned counsel appearing for the appellants-Accused Nos.3, 4 and 5, Sri T.V.L. Narasimha Rao, learned counsel appearing for the appellant- Accused No.2, as well as the learned Public Prosecutor appearing for the respondent-State. 3. Appellants are Accused Nos.1 to 5 in the Sessions Case. 4. Aggrieved by the judgment, dated 17.8.2009, in Sessions Case No.534 of 2003, passed by the I Additional District and Sessions Judge, Nellore, convicting Accused Nos.1 to 5 for the offence punishable under Section 148 of Indian Penal Code (for brevity “IPC”) and sentencing them to undergo Rigorous Imprisonment for one year and also to pay a fine of Rs.500/-, in default to undergo Simple Imprisonment for 15 days, and further convicting Accused Nos.1 to 5 for the offence punishable under Section 302 IPC and sentencing them to undergo Imprisonment for Life and also to pay a fine of Rs.500/-, Accused No.1 has preferred Criminal Appeal No.939 of 2009, Accused Nos.3 to 5 have preferred Criminal Appeal No.1028 of 2009, and Accused No.2 has preferred Criminal Appeal No.1221 of 2009. 5. The case of the prosecution, in brief, is that in the village of Gudluvaripalem, there are two rival parties. Accused No.1 and other accused belongs to Telugu Desam Party. While the deceased belongs to Congress Party. There was continuous enmity allegedly between the accused group and the deceased group, more particularly in connection with the construction of a Community Hall in the village. There was allegedly difference of opinion between the two groups. 6. While so, on the fateful day i.e., on 30.5.1997 at about 7- 00 a.m., when the deceased and P.Ws.1 and 2, who are wife and sister, respectively, of the deceased were going to work in the fields and when they reached Chakalaipalem, the appellants- Accused Nos.1 to 5 along with the other accused way laid and attacked the deceased with axe, spears, kattuva karralu, knives and sticks indiscriminately and flew away from the place of occurrence. 7. P.Ws.1 and 2 along with the villagers removed the injured from the place of occurrence in a tractor to the nearby Government Hospital, Nellore, where the doctor announced the death of the deceased. On 30.5.1997 at 12-30 p.m., P.W.1 lodged Ex.P-1 complaint to Venkatachala Sathram Police Station and P.W.10, the S.I. of Police registered the same as Crime No.55 of 1997 under Sections 147, 148, 324 and 302 read with 149 IPC. P.W.11 Inspector of Police, Nellore, received information about the murder and immediately proceeded to Gudluvaripalem village. He received the FIR from P.W.10 and took up investigation. He secured the presence of P.W.7 and prepared observation report Ex.P-3. He went to Government Hospital, Nellore and held inquest over the dead body of the deceased in the presence of P.W.7 and others. He also examined P.Ws.1 to 4 at the time of inquest. Thereafter the dead body was sent for postmortem examination. P.W.8 Deputy Civil Surgeon, Government Hospital, Nellore, conducted autopsy over the dead body of the deceased on 31.5.1997 and found 11 external injuries and issued Ex.P-4 postmortem certificate. He opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. P.W.12 examined P.W.2 and issued Ex.P-8 wound certificate. After completion of investigation and necessary formalities, P.W.13 filed charge sheet before the Court concerned. 8. When the charges under Sections 148, 302, 302 read with 149 IPC were framed, read over and explained to the accused A-1 to A-13, they pleaded not guilty and claim to be tried. 9. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 13 and got marked Exs.P-1 to P- 8, besides marking MOs.1 and 2 material objects. On behalf of the accused, D.Ws.1 and 2 were examined and Exs.D-1 to D-7, which are the marked portions of Section 161 Cr.P.C. statements of P.Ws.1, 2, 3 and 4, and Ex.D-8 relevant entry in the admission register maintained by MPP School, Chenaballipalem, were marked. 10. Accused No.13 died during the pendency of trial. Therefore, the case against Accused No.13 was abated. The learned Sessions Judge, having considered the entire material including the evidence, both oral and documentary, available on record, acquitted all the other accused i.e., Accused Nos.6 to 12 for the offences with which they were charged, and convicted and sentenced the appellants-Accused Nos.1 to 5 as stated above. Aggrieved by the same, the appellants-Accused Nos.1 to 5 have preferred the present criminal appeals. 11. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants vehemently contended that there is inordinate delay in lodging Ex.P-1 complaint. He also contended that P.Ws.1 and 2 cannot be termed as eye witnesses and their evidence is highly improbable and unbelievable. According to the learned Senior Counsel, while the incident took place at 7-00 a.m., on 30.5.1997, Ex.P-1 complaint was received by the police at 12- 30 p.m., on 30.5.1997 and it reaches the Court at 7-15 p.m. He further contended that it is the case of the prosecution that while P.Ws.1 and 2 travelled along with the deceased, they informed P.W.5 Head Constable regarding the incident and P.W.5 also accompanied the injured and the deceased to the hospital. The learned Senior Counsel further submitted that it is the evidence of P.W.10 S.I. of Police, V.Sathram Police Station, that on the report given by P.W.1 on 30.5.1997, by 10-30 a.m., the complaint was entered into General Diary of the said Police Station. Hence the present complaint his hit by Section 162 Cr.P.C., since on the basis of the information given by P.Ws.1 to 5 the law was set in motion and the investigation was started. He also contended that the evidence of P.W.5 that he was present during inquest from 3-00 p.m. to 6-00 p.m. on 30.5.1997 would suggest that the present complaint is lodged by P.W.1 after due deliberations and consultation with the other persons. Therefore, he sought to set aside the conviction and sentence recorded against the appellants-accused. 12. The learned Sessions Judge, while convicting the accused, relied on the evidence of P.Ws.1 and 2, who are the injured witnesses. The learned Sessions Judge while not accepting the evidence of P.W.3, who is a resident of the village and an eye witness to the incident, accepted the evidence of P.Ws.1 and 2, since they being the injured witnesses and identified the appellants-accused attributing some specific overtacts to them. 13. Even though P.Ws.1 and 2 were termed to be the injured witnesses, P.W.1 has stated all the names of the appellants- accused and other assailants before the trial Court. But, at the same time, she stated that she is not in a position to identify the persons who caused injuries to her. Though the evidence of P.W.1 is pointing towards some of the appellants-accused and other assailants, who were charged before the trial Court, for the injuries caused to the deceased, she is not in a position to state who are the persons who caused injuries to her, which clinchingly establishes the fact that she is not an eye witness to the occurrence. P.W.1 has stated the names, father name and the appellant as well as other assailants, but she stated that she could not identify the person who caused injuries to her. Further she has also not subjected her to medical examination. The same was posted to P.W.1 as well as P.W.5. In such a situation, this court is of the view that P.W.1 can be treated as an injured eyewitness. 14. Coming to the evidence of P.W.2, she has also deposed before the trial Court regarding the overtacts and the presence of the appellants-accused as well as other assailants, who were charged before the trial Court, but she also stated that she is not in a position to inform who are the persons caused injuries to her. 15. The evidence of P.W.12 doctor, who examined P.W.2 on 30.5.1997, and issued Ex.P-8 wound certificate is also not tallying with the evidence of P.W.2 as regards the injuries sustained by P.W.2. 16. To prove the presence of P.Ws.1 and 2, the prosecution has not taken sufficient efforts to recover the blood-stained clothes. Admittedly, it is the case of the prosecution that P.Ws.1 and 2 travelled along with the deceased, who sustained number of bleeding injuries and subsequently declared dead in the hospital. If it is the case of the prosecution that P.Ws.1 and 2 were present at the place of occurrence and witnessed the incident, it is the duty of the investigating officer to substantiate the same by way of recovering the blood-stained clothes. But, the same is lacking in this case. 17. As far as the contention raised by the learned Senior Counsel regarding the delay in lodging the complaint, this court perused the records as well as evidence adduced by the prosecution. It is well settled proposition that the delay is always not fatal. But at the same time, unexplained delay is certainly fatal to the prosecution. In the present case, admittedly the occurrence took place at 7.00 AM and further P.Ws.1 and 2 travelled along with the deceased in a tractor through the respondent-police station. The same was accepted and admitted by P.Ws.1, 2 and 5. More particularly, P.W.5 – Head Constable attached to the respondent-police station accompanied the witness along with the deceased to the same hospital and it is the further evidence of P.W.10 who categorically admitted, by 10.30 AM he received information and the same was entered in the general diary, but the case projected by the prosecution before the court that the complaint was lodged by P.W.1 by 12.30 PM. As rightly pointed out by the learned Senior Counsel, subsequent investigation after 10.30 AM anything recorded is amount to statement recorded under Section 162 of Cr.P.C. Hence the present complaint is hit by Section 162 of Cr.P.C. Further the said complaint registered by 12.30 PM also reached the court only by 7.30 PM. There is no explanation by the Investigating Agency before the court and further the evidence of P.W.5 is that he received copy of the FIR by 12.30 PM, further stated he was also present at the time of inquest from 3.00 PM to 6.00 PM. In view of the same this court is of the view that the delay in registering the case and delay in sending FIR to the concerned court certainly causes prejudice to the accused/appellant. Hence there is possibility of implication of the appellant herein in the present complaint. Hence this court is of the view that the earlier complaint suppressed by the prosecution. 18. In view of the above said lapses on the part of the prosecution, we are of the view that the prosecution has failed to establish the guilt of the appellants-Accused Nos.1 to 5 by placing proper evidence before the trial Court connecting the appellants- Accused Nos.1 to 5 with the commission of offence. Therefore, appellants-Accused Nos.1 to 5 are entitled for the benefit of doubt as claimed by the learned Senior Counsel. 19. In the result, the above criminal appeals are allowed by setting aside the impugned judgment, dated 17.08.2009, in Sessions Case No.534 of 2003, passed by the I Additional District and Sessions Judge, Nellore, and the appellants-Accused Nos.1 to 5 are acquitted of the offences 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 RAJA ELANGO 30.03.2010. Msr THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal Nos.939, 1028 and 1221 of 2009 30.03.2010 (Msr)