* HON’BLE SRI JUSTICE D.S.R.VARMA AND *HON’BLE SRI JUSTICE R.KANTHA RAO + CRL.A.NO.1355 OF 2008 % Date: 03-09-2009 Between: # Marella Chalama Reddy and others .. Appellants and $ The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad., … Respondent ! Counsel for appellant: Sri C.Praveen Kumar ^ Counsel for respondent: Public Prosecutor < GIST: >HEAD NOTE: ? Cases referred: 1 2003(3) SCC 355 HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1355 OF 2008 BETWEEN: Marella Chalama Reddy and others .. Appellants And State of A.P. Rep.by Public Prosecutor, High Court, Hyderabad. .. Respondent HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1355 OF 2008 JUDGMENT: (Per RKR,J) 1. This appeal is directed against the Judgment dated 22.10.2008 in S.C.No.321 of 2004 on the file of the X Additional Sessions Judge, (Fast Track Court) Narasaraopet in Sessions Division, Guntur. 2. The learned Additional Sessions Judge convicted the appellants for the offences punishable under Sections 143, 302 read with 149 IPC and sentenced each of them to undergo rigorous imprisonment for a period of three months for the offence punishable under Section 143 IPC and further sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/- for the offence punishable under Section 302 read with Section 149 IPC. 3. Assailing the said order of conviction and sentence, the appellants preferred the present appeal. 4. Briefly stated, the prosecution case is like this: The appellants are residents of Marellavaripalem Village whereas deceased 1 and 2 and the material witnesses for the prosecution belong to Kammavaripalem Village in Guntur District. The village Marellavaripalem is dominated by Reddy community, whereas the village of Kammavaripalem is dominated by Kamma community. Both the villages constitute one and the same Grampanchayat. The villages were also faction ridden. In the elections to the Grampanchayat held in the year 2001, A1 and the first deceased contested for the post of Sarpanch and ultimately D1 had won the election against A1 with a margin of 40 votes. After the results of the election were declared, the rivalry between both the groups became intensified. A1 filed a petition questioning the election of D1 as Sarpanch of the Grampanchayat attributing some malpractices, for which D1 allegedly had resorted to. 5. While so, on 17.04.2003 at 4.00 PM D1, D2, PWs.1 and 2 went to Marellavaripalem village in a tractor bearing No.AP7V 8286 belonging to D2 to the house of PW6, collected the rice bags relating to the public distribution system and were returning to their village in the said tractor. D2 was driving the tractor and D1 was sitting on the Mudguard while PWs.1 and 2 were sitting on the rice bags. All the appellants formed themselves into unlawful assembly by arming with axes, knives and bombs and way laid at the eucalyptus garden belonging to Bhavanam Peda Yogi Reddy with a common object to kill D1 and D2. At about 6.30 PM, they obstructed the tractor at eucalyptus garden and surrounded the tractor. A1 hacked on the head and chin of D2 with an axe. A2 hacked on the head of D1 with an axe. D1 alighted from the tractor and tried to escape, but A3 stabbed him with a knife on the face. PWs.1 and 2, who witnessed the incident got down from the tractor and started running away to the village in order to escape from the appellants. A8 and A11 chased them up to a distance, but they were unable to catch hold of them. A4 to A6 hurled bombs to guard the scene of offence with a view to prevent any sort of interference and also to create terror. Out of the three bombs, one bomb hurled by A4 exploded. 6. PWs1 and 2, who reached the Village, informed the incident to the villagers and thereafter returned back to the scene of offence along with the villagers and found both the deceased dead in a pool of blood. Subsequently, on a report lodged by PW.1 before PW.15, the Sub Inspector of Police at Inavolu Police Station, a case in Crime No.19 of 2003 came to be registered under Sections 143, 147, 148, 342, 307, 302 read with 149 or 34 IPC and Sections 3 and 5 of the Explosive Substance Act against the appellants. The Inspector of Police, Vinukonda Circle investigated into the offence and after completing the investigation filed charge sheet. 7. The prosecution in order to prove the guilt of the appellants examined PWs.1 to 15, marked Exs.P.1 to P.37 and MOs 1 to 26 before the trial Court. 8. PW.1 is the brother of D2, whereas PW2 is the brother of D1. The other material witnesses for the prosecution are also closely related to the deceased as well as PWs.1 and 2. The entire case rested on the evidence of the two eye witnesses i.e. PWs.1 and 2. 9. The learned trial court relying on the evidence of PWs.1 and 2 and the other material available on record, convicted and sentenced the appellants to punishment as mentioned above. The said order of conviction and sentence is the subject matter of challenge in this appeal. 10. We have heard Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants and the learned Public Prosecutor appearing for the State. 11. The learned Senior Counsel appearing for the appellants would submit that there is inordinate delay in lodging the first information report and also it’s reaching the Magistrate, the oral evidence of PWs.1 and 2 is inconsistent with the medical evidence and the trial Court ought to have rejected the testimony of PWs.1 and 2 and acquitted the appellants. 12. On the other hand, the learned Public Prosecutor would submit that the evidence of PWs.1 and 2 though that of interested witnesses being trustworthy, was rightly relied upon by the trial Court and there are no valid grounds to interfere with the conviction and sentence passed by the trial Court against the appellants. 13. We have perused the depositions of the witnesses, the material papers available on record, judgment of the trial Court and thoroughly reappraised the evidence with reference to the rival contentions. 14. Now the point for consideration in this appeal is whether the conviction and sentence passed by the trial Court against the appellants can be sustained? 15. There is no dispute about the fact that the prosecution party belongs to one political group, whereas the appellants represent the other political group. There is also no denial of the fact that both the villages which constituted a single Grampanchayat are faction ridden and there was bitter enmity between both the groups, more particularly after the elections of the Grampanchayat held in the year 2001, wherein D1 had won the election against the first appellant by a margin of 40 votes. Further admittedly, the material witnesses for the prosecution are closely related to the deceased. PWs.2 and 4 are the brothers and PW.3 is the wife of D1. PW.1 is the brother and PW.5 is the wife of D2. 16. Though, PWs.1 and 2 have spoken about the alleged attack by the appellants against the deceased, their version before the Court is at variance with the contents of the first information report lodged by PW.1 and also consists of inconsistencies and discrepancies on vital aspects. 17. The contents of Ex.P.1 report lodged by PW1 in regard to the overt acts and other material facts are the following: “Marella Chalama Reddy hacked D2 (Gangineni Hanumanth Rao) with an axe on the head and immediately hacked him with axe on the throat. At the same time, Nagi Reddy hacked D1 (Madarametla Subbaiah), who was sitting by the side of D2 with an axe on the neck and head. At that time, PWs.1 and 2 were sitting on the rice bags in the tractor. Thereafter, all the accused were beating the deceased indiscriminately with the weapons in their hands. PWs.1 and 2 being afraid started running away, some of the accused chased them, but they were unable to catch PWs.1 and 2. PWs.1 and 2 went into the village and informed the incident to the villagers immediately. Thereafter, PWs.1 and 2 along with the villagers returned back to the place of occurrence and found deceased 1 and 2 lying dead in a pool of blood.” 18. The incident occurred at 6.30 PM on 17.04.2003. PW.1 lodged Ex.P.1 – report with the police at 3.00 AM on 18.04.2003 which is situated at 18 km from the place of occurrence. The first information report reached the Magistrate at 10.40 AM on 18.04.2003 in the Court and admittedly, the police station where the FIR was lodged and the Court of the Magistrate are in the same campus. Thus, there is inordinate delay in lodging the first information report and also the first information report reaching the Magistrate. 19. It is true that merely because there is some delay in lodging the first information report and there is further delay in the first information report reaching the Magistrate, it is not proper for the Court to arrive at a conclusion that the delay becomes fatal to the case of the prosecution. The delay of whatever duration it might be, if properly explained, cannot be said to be fatal to the case of the prosecution. Further the delay in lodging the first information report only obligates the Court to scrutinize the testimony of witnesses with great care and circumspection. Much more thorough scrutiny of the evidence is required when the witnesses are interested and partisan. Further the first information report need not contain all the details since it’s main object is to set the Criminal Law into motion. However, in certain circumstances omission to mention some material facts may cast cloud of suspicion on the prosecution story. The issue, therefore, has to be examined in the back drop of the events occurred in the instant case. In any event, we are conscious while reappraising the evidence, of the fact that since PWs.1 and 2 on whose evidence the entire case of the prosecution is based being no other than the brothers of deceased 1 and 2, their version has to be scrutinized with utmost care and caution. 20. We would in the first place like to refer to the evidence of PW15 – autopsy Surgeon and his findings in Exs.P.16 and P.17 – postmortem reports relating to D1 and D2. PW.15 found the following injuries on the body of the first deceased – Subbaiah which are ante mortem in nature: 1. A laceration of 15 cm x 3 cm x bone deep on the occipital Region of the Head. Reddish black in colour, edges are regular. 2. A laceration of 4 cm x 1 cm x bone deep on the right frontal Region of the head. Reddish black in colour, edges are regular. 3. Fracture of the skull bone on the occipital Region of the head. 4. Fracture of the skull bone on the right frontal region of the head. Similarly, he found the following ante-mortem injuries on the body of the second deceased – Hanumantha Rao. 1. A laceration of 12 cm x 2 cm x bone deep on the left parietal region of the head. Reddish black in colour, edges are regular. 2. A laceration of 5 cm x 1 cm x bone deep on the chin. Reddish in colour.Edges are regular. 3. Fracture of the skull bone on the left parietal region. 4. Fracture of the mandible at the chin region. The opinion about the cause of death of the deceased according to PW.15 is haemorrhage and shock due to multiple injuries. 21. Then, we will proceed to make a note of the overt acts spoken to by PWs1 and 2. PW.1 stated in his evidence before the trial Court that A1 hacked D2 on the back of the head with axe and subsequently on the neck with the same weapon. A2 hacked D1 with axe on the back of his head while D1 was sitting on the mudguard of the tractor. A3 stabbed D1 on his right forehead with a knife. A4 and A12 hacked D1 on his head with axe. A4 and A6 attacked D2 with axe and stick respectively. Thereafter, he (PW.1), PW.2 got down from the tractor and started running away due to fear. A8, A11, A7 and A15 chased them. After PWs1 and 2 ran up to certain distance they heard the sound of explosion of bomb. 22. PW.2 stated in his evidence before the trial Court as follows: A1 hacked D2 on his head with axe and later on the throat with the same axe. A4 and A6 attacked D2 with axe and stick respectively. A2 hacked D1 on his head with axe, while D1 was sitting on the mudguard of the tractor. When D1 was trying to escape A3 hacked D1 and stabbed D1 with a knife on his head. A12 hacked D1 on his head with an axe. When PWs.1 and 2 were running away A7, A8, A11 and A15 chased them. Subsequently, they heard sound of explosion of the bomb. 23. From the above, we noticed that in the first information report PW.1 got mentioned only about the overt acts committed by A1 and A2 against D1 and D2 and thereafter got mentioned therein that the remaining accused were also beating D1 and D2 with the weapons in their hands and out of fear they started running away. He did not state the names of the persons, who chased them while they were running away. But subsequently, both the witnesses spoke about some other overt acts committed by some of the appellants. PW1 admitted in the cross examination that he did not mention in Ex.P.1 – report that on 17.04.2003 at 4 PM, he, PW2, D1 and D2 went to the house of PW.6 situated at Marellavaripalem village. He also admitted that he did not mention in Ex.P.1 – report that the offence took place when the tractor reached the land of Bhavanam Pedayogi Reddy of Reddypalem Village. PW.1 stated in the cross examination that because of the grief he could not get all the minute details like A1 hacked on the back side of the head of D2 with an axe, D1 got down from the tractor and was trying to escape, then A3 stabbed D1 on his right forehead with knife that D1 fell down when D1 was hacked by A1 on his head and A4 and A6 attacked D2 with axe and stick respectively. He, PW.2 got down from the tractor and started running away. Thereafter A7, A8, A11 and A15 chased them and that they heard explosion of bomb after running up to certain distance. 24. A perusal of Ex.P.1- report discloses that it does not contain the date on which it was presented to the police, though it contains the endorsement of the Sub Inspector of Police with time and date of receiving the report. 25. PW1 did not state in his police statement that A1 hacked D2 on the back of his head with an axe and later on the neck, and A2 hacked D1 with axe on the back side of the head while D1 was sitting on the mudguard and D1 got down from the tractor and was trying to escape and at that time A3 stabbed D1 on his right forehead with knife and D1 fell down and A12 axed D1 on his head with an axe and A4 and A6 attacked D2 with an axe and stick respectively and thereafter A1, A11, A7 and A15 chased him and PW.2. 26. Like wise, PW.2 did not state in his police statement that A3 stabbed D1 with knife. A1 hacked D1 on his head with an axe and A7 and A15 chased them while they were trying to escape and A4 and A6 attacked D2 with an axe and stick respectively. 27. The above mentioned omissions in our view are very much material and caste any amount of doubt on the veracity of the prosecution version. 28. We further noticed that the ocular version in this case is in conflict with the medical evidence. 29. PW-8 – the doctor, who conducted postmortem examination over the bodies of deceased 1 and 2 stated in the cross examination that lacerated injuries would be caused with blunt object, there is no injury at all on the neck of D1, there is no stab injury on the face of D1, and that cut injury would be with a sharp object and that he did not find any cut injury on D1. He also further stated in the cross examination that there was no injury on the neck of D2 and there were no hack or cut injuries on the head of D2. 30. Thus, the evidence of PWs.1 and 2, who are eye witnesses is quite contrary to the medical evidence which is based on the injuries found by PW.8 – autopsy Surgeon over the bodies of both the deceased. No doubt when there is any inconsistency between the oral evidence and medical evidence, the oral evidence would normally prevail. But when medical evidence rules out, the possibility of the happening of the incident in the manner spoken to by the eye witnesses, the Court has to necessarily arrive at an opinion that the eye witnesses are not giving correct version about the incident and ultimately it leads to the conclusion that the witnesses were not in fact present at the place of occurrence and they did not witness the incident at all. The present case falls in the second category. 31. Before parting with the judgment, we would like to refer to the decision in RAJEEVAN AND ANOTHER v. STATE OF KERALA[1], wherein the Supreme Court held while dealing with almost identical facts to that of the case on hand that the delay of 12 hours in lodging the first information report and the further delay in forwarding the first information report to the magistrate for which there was no satisfactory explanation by the prosecution, the delay adversely affects the prosecution case. 32. In the instant case, admittedly (according to PWs.1 and 2) PWs1 and 2 escaped from the accused after the attack on D1 and D2 and came running to their village which is at a distance of 3 kms, thereafter they informed the incident to the villagers and returned back to the place of occurrence along with villagers and found the dead bodies lying in a pool of blood. Since D1 happened to be Sarpanch of the village, who won the election against A1 there were number of people belonging to his group, some of whom rushed to the place of occurrence soon after receiving the information. It could not have been much difficult for any one of them to inform the incident to the police. But admittedly, no such attempt has been made either by PWs.1 and 2 or by any of the villagers. Further, the police station is at a distance of 18 km from the place of occurrence for which there is bus facility. One can reach the police station at least within 20 minutes by boarding any vehicle. Even if it is considered, PW.1 was under grief on account of the death of the deceased, the delay of eight and half hours is not understandable and has also not been properly explained by the prosecution. Further the delay of FIR reaching the Magistrate by 10.40 AM on 18.04.2003, more particularly when the court, residence of Magistrate and the police station are in the same Compound has also not been properly explained. Here it would be proper for us to mention about the conduct of the witnesses, who are related to D1 and D2. 33. PW.1 stated in the cross examination that he does not know whether D1 is an accused in the murder case of his father. PW2 also stated in the cross examination that he does not know whether D1 is an accused in the murder case of Brahmanaidu, who is the father of PW.1. PW.1 admitted in the cross examination that one Gangineni Venkamma is the wife of his uncle, but he does not know that she is the first informant in the murder case of his father in Crime No.49 of 1979. It is also the evidence of PW.1 in the cross examination that several persons (whose names were spoken to in the cross examination) were originally residents of their village, but now all the said persons migrated to Nuzendla from their village. But PW.1 did not admit the suggestion that because, they were unable to resist the atrocities of D1 and D2 migrated to some other village leaving their native place. 34. On this aspect, PW.2 also gave evidence to the same effect. From the above referred evidence of PWs.1 and 2 it is obvious that they have no respect for truth. Their evidence further probabalises the defence theory that there were several persons who were inimical to D1 and D2 in and around their village. According to the evidence of PWs.1 and 2 soon after witnessing the attack on D1 and D2, they ran into the village and informed the same to the villagers. The version that PWs 1 and 2 went along with D1 and D2 in the tractor for the purpose of bringing the rice relating to public distribution system itself appears to be quite unconvincing and the presence of PWs.1 and 2, who are no other than the brothers of D1 and D2 respectively cannot be considered to be normal at relevant time at the scene of offence. Their evidence relating to the overt acts comes into conflict with medical evidence, which also renders their presence at the scene of offence at the relevant point of time very much doubtful. In view of their close relationship with the deceased and they being admittedly partisan witnesses their evidence being inconsistent and discrepant on material particulars coupled with the delay of lodging the first information report and its reaching the Magistrate, we are of the considered view that it is quite unsafe to rely on the testimony to convict the appellants. The defence version that only after coming to know about the existence of the dead bodies on the road, PW.1 after due deliberations and consultations with the people of their faction falsely implicated the appellants is also quite possible. Therefore, the learned trial Court ought not to have placed reliance on the evidence of PWs.1 and 2, the conviction recorded by the trial Court according to us is not proper and hence, the appellants are entitled for benefit of doubt. 35. For what all stated herein above, we set aside the conviction and sentence passed by the trial Court against the appellants and acquit the appellants for the offences under Sections 143, 302 read with 149 IPC. We direct the release of the appellants, who are undergoing jail sentence in connection with this case, forthwith, if they are not required in any other case. 36. The Criminal appeal is allowed accordingly. _________________ D.S.R.VARMA,J ___________________ R.KANTHA RAO,J Dated: 03.09.2009 Note: L.R. Copy to be marked. B/O KVRM HON’BLE SRI JUSTICE D.S.R.VARMA AND HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1355 OF 2008 (Per RKR,J) DATED: 03.09.2009 [1] 2003(3) SCC 355