IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH AT HYDERABAD. Tuesday, December 21, 2010. Present: Hon’ble Sri Justice V. Eswaraiah And Hon’ble Sri Justice P. Swaroop Reddy Crl.A.No. 90 of 2008 Between: The State of AP represented by The Public Prosecutor, High Court, Hyderabad. ..Appellant And Khaza Raju ..Respondent VE & PSR, JJ. Crl.A.No. 90 of 2008 Judgment (Per P. Swaroop Reddy, J.) This appeal is filed by the State against the judgment of the learned V Additional Sessions Judge (Fast Track Court), West Godavari at Eluru. For the sake of convenience, the parties herein would be referred to as they are arrayed before the trial court. In this appeal, the sole accused was prosecuted for the offence under section 302 IPC for causing the deceased, Palli Ramesh, by attacking him with a stick. 2. The case of the prosecution is that - the deceased, Palli Ramesh and his wife Chandrakala are residing separately due to some disputes. The deceased was living with his concubine, Durga. He was a confectionary trader and the accused was working as an assistant under him. The accused used to demand the deceased money to meet his vices of drinking etc. On 1-11-2001, when the deceased went to Bazar along with his daughter, Prameela and when they reached Ambedkar statue, Eluru the accused came in opposite direction and demanded money from the deceased for alcohol. When the deceased stated that he has no money, the accused grew wild and started abusing the deceased. The accused picked up a stick and beat the deceased causing injury, on account of which the deceased fell down. When PW-2 raised cries, people gathered there and seeing the same, the accused by throwing the stick ran away. The deceased was shifted to the Hospital of PW-10, where he was given first aid. On 3-11-2001, PW-4, the sister of the deceased, noticed the deceased moving with a kerchief over his right ear and she asked her son PW-1 to enquire with the deceased as to what has happened. When PW-1 enquired, the deceased narrated the incident to him. Thereafter on 5.11.2001, as the deceased was found weak, PW-1 and others took him to the Government Hospital, Eluru, where police constable PW-7 received hospital intimation (Ex P-3) and recorded the statement (Ex P-1) of PW-1 and sent it to the Police Station. On receipt of Ex P-1, PW-8 registered it as a case in Cr.No.174 of 2001 under section 307 IPC. The deceased died on 7.11.2001 while undergoing treatment. Thus the deceased, who was beaten on 1-11-2001 died on 7-11-2001, seven days after the incident. Then the section of law was altered to one under section 302 IPC and after investigation charge sheet was laid against the accused under section 302 IPC. 3. The accused pleaded not guilty. 4. In support of its case, the prosecution examined PWs -1 to 12 and Ex P-1 to P-11, apart from MOs 1 to 3. Out of the witnesses examined on behalf of the prosecution PW-1 is the nephew of the deceased, He stated that on 3-11-2001 at about 4-00 or 5-00 PM, on the instructions of his mother, he asked the deceased, as to why he was keeping kerchief covering his right ear. On that the deceased told him that the accused beat him on 1.11.2001 at about 3.00 PM. The evidence of PW-2, the niece of the deceased, is that the deceased was looking after well and on 1-11-2001 at about 3.00 PM, when she was going with the deceased, the accused came in the opposite direction and asked the deceased for money for consumption of alcohol. On that the deceased replied that he has no money. Then the accused questioned him, picked up a stick from the road side and beat the deceased on the left ear and shoulder. The deceased fell down. When she raised hue and cry, people gathered there and on seeing that the accused ran away. She took the deceased home and got him examined by one RMP doctor. Subsequently, the deceased was admitted in the Government Hospital, Eluru where he died after five days. PW-3 who is supposed to be an eye witness turned hostile. PW-4, sister-in-law of the deceased spoke about the deceased suffering from injury. PW-5 is the Medical Officer that admitted the deceased into Government Hospital, Eluru on 5.11.2001. PW-6 is the Medical Officer that conducted autopsy on the dead body of the deceased, who found the following: External injuries: 1) a cut injury on the left upper pinna 45 x ½ “ in size muscle deep. 2) A contusion injury over the left shoulder 6 x 2 inches in size, irregular in shape with brownish black in colour. 3) Contusion injury over the left thigh 4 x 2 inches in size, irregular in shape, brownish black in colour. Internal examination: There was a linear fracture over the left side of the skull passing from the left side of the pinna towards left temporal occipital region. There was haemotama on the left side of the brain. The deceased died of shock hemorrhage as a result of injury to the vital organ – brain. PW-7 is the Head Constable. His evidence is that on 5.11.2001 at 2.30 PM he received hospital intimation; visited M.M.Ward and found the deceased in unconscious state. He recorded the statement (Ex P-1) of PW-1. The evidence of PW-8, the Assistant Sub Inspector of Police is that on receipt of Ex P-1 complaint from the Government Hospital, Eluru, he registered the case and visited the Government Hospital, Eluru at 6.00 PM and seized blood stained shirt from the person of the deceased. PW-9 is a mediator for recovery of blood stained shirt under Ex P-6. PW-10 is the doctor who initially treated the injured. PW-11 is the SI of Police. His evidence is that on 6.11.2001 after verifying the investigation, examined Palli Ramesh (the deceased) and recorded his statement. In his cross examination also he asserted that he has recorded the statement of the deceased on 6.11.2001. He further stated that he did not obtain any endorsement of the doctor on the statement recorded by him. PW- 12 is the Inspector of police that laid the charge sheet in this case. 5. Ex P-1 reveals that only on enquiry by PW-1, much later, he learnt about the manner in which the deceased received the injury. Prior to that there was no information as to how the deceased received the injury. PW-2, the daughter or niece, who claims to be the daughter, also claims to be an eye witness to the incident. But her name is not found in the FIR as an eye witness to the incident. In fact, in case she was present on 1.11.2001, when the deceased was attacked, there was no question of other family members not knowing about the cause of the injury, till on 3-11-2001 when PW-1, on the instructions of his mother enquired the deceased. As such the trial court has rightly disbelieved the evidence of PW-2 to be an eye witness to the incident. In case PW-2’s evidence is excluded from consideration, there is no material, except some material that could be treated as dying declaration of the deceased. PW-11, as already referred to, has emphatically stated that he has recorded the statement of the deceased, which he has asserted in his cross examination. But no such statement, which could have been treated as the dying declaration of the accused, is on record. The contention of the leaned counsel for the accused is that the same is suppressed, as obviously, it would go against the prosecution case. As contended by the learned counsel for the accused, adverse inference has to be drawn on account of the suppression of the above important document. 6. Then the only material remains is the statement of the deceased, allegedly made to PW-1, which would be in the shape of some oral dying declaration. But, when the authentic material i.e., the statement of the deceased recorded by PW-11 is suppressed, in the circumstances of the case, much weight cannot be given to the alleged oral declaration made by the deceased before PW-1. Thus, there is no material to prove the case against the accused beyond reasonable doubt. Therefore, the finding of the trial court cannot be held to be erroneous and there are no grounds to interfere with the judgment of the court below. 7. In the result the appeal is dismissed. _________________ V. ESWARAIAH, J. Dated: 21—12—2010. *BVS _______________________ P. SWAROOP REDDY, J.