HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1546 OF 2007 Dated:05-07-2011 BETWEEN: Shaik Vali …Appellant AND State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.1546 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) Appellant-A.1 and two others (A.2 and A.3) were tried for the offences under Sections 302, 302 r/w 34 I.P.C. respectively, in S.C.No.366 of 2007 on the file of IV Additional Sessions Judge (Fast Track Court), Tanuku for having committed the murder of Pampana Radha Krishna (hereinafter referred to as ‘deceased’) by stabbing him with butcher knife. By judgment dated 03.10.2007 the appellant-A.1 was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo simple imprisonment for one month. A.2 and A.3 were acquitted of the charges. Aggrieved by the said judgment, the appellant filed the present appeal. 2. The story of the prosecution as narrated during the course of trial is as under: On 01.11.2005 P.W.1 along with his friend-P.W.2 while going to Hotel situated in Peravali Junction for taking Pulkas and when he reached near Pilla Kaluva Bridge, heard cries and went to Pilla Kaluva Bridge and observed the accused disputing with the deceased. Meanwhile, A.1 stabbed the deceased with a knife on his stomach and went away from that place. Immediately, P.Ws.1 and 2 shifted the deceased on Hero Honda Motorcycle to Government Hospital, Tanuku, where the duty doctor after examination declared the deceased brought dead. Later, on the same day at 11.00 p.m. P.W.1 went to the police station and lodged Ex.P.1 report stating that on his enquiry, he came to know that prior to the incident on the same day at 8.00 p.m. while A.2 and A.3 were going to the house of A.3, one rocket fell on A.3 while performing Deepavali festival and in that connection, there was some altercation between the deceased and A.2 and A.3 and that the deceased beat A.2. Then A.2 and A.3 left the place and went to the house of A.1 and narrated the entire incident to him. Immediately, A.1 came to Pilla Kaluva Bridge with a knife, which was used for cutting goats and quarreled with the deceased and stabbed him with the knife. Basing on the complaint under Ex.P.1, P.W.19-Sub- Inspector of Police registered a case in Crime No.247 of 2005 under Section 302 r/w 34 IPC and issued the FIR under Ex.P.20. On receipt of information about registering the crime, the Circle Inspector of Police took up investigation, visited the Government Hospital and visited the scene of offence. On the next day i.e. on 02.11.2005, he visited and observed the scene of offence, drafted the rough sketch of scene of offence and drafted observation report. Ex.P.21 is the rough sketch. He examined P.Ws.5 to 10 and visited the Government Hospital and gave a requisition for conducting post-mortem examination. On the same day, on receipt of information about the accused, he proceeded to the house of A.1, arrested all the accused at the house of A.1 and recorded their confessional statement under Ex.P.16 and basing on said confessional statement, M.O.1-knife was seized in the presence of mediators and he remanded the accused to judicial custody. On completion of investigation and on receipt of all the relevant documents, he laid the charge sheet against the accused. On committal, two charges were framed and when the same were read over and explained to the accused in Telugu, they denied the same and claimed to be tried. 3. To bring home the guilt of the accused, prosecution examined P.Ws.1 to 20 and marked Exs.P.1 to P.23 besides M.Os.1 to 7. On behalf of defence, no oral evidence was adduced but Exs.D.1 to D.5 were marked. 4. The learned Sessions Judge after appreciation of oral and documentary evidence found the evidence of P.Ws.1 and 2 as trustworthy and held that their evidence has also been corroborated with the medical evidence and accordingly convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment as aforementioned. 5. Sri C.Padmanabha Reddy, learned senior counsel appearing for the appellant-A.1 contended that according to P.Ws.1 and 2 after receiving three stab injuries by the deceased, they made the deceased to sit in between them on a motorcycle and they shifted him to the hospital but there are no bloodstains on the clothes of P.Ws.1 and 2, which itself improblises about their witnessing the incident and shifting the deceased to the hospital. In Ex.P.1 it is stated that the appellant-A.1 came to the bridge with a knife which was used for cutting goats and stabbed the deceased and went away from that place, whereas, in evidence, P.W.1 stated that he observed a quarrel/altercation between the accused and deceased and in the meanwhile, appellant stabbed the deceased with a knife on stomach and intestines came out from the stomach and the deceased fell down on the ground. Whereas, the doctor-P.W.14 who conducted autopsy found three injuries and stated that there is a possibility that if any person sustained the three stab injuries and sat in between two persons on motorcycle, the intestines of the injured would come out. Further the blood was oozing from the wounds of the deceased and therefore, the clothes of P.Ws.1 and 2 would have been stained had they carried the deceased on the motorcycle. Therefore, P.Ws.1 and 2 are not eyewitnesses to the incident but they were planted by the prosecution. Both the witnesses have not stated about the three injuries caused on the deceased by the accused. If their evidence is eschewed from consideration, there is no other evidence to connect the appellant with the crime and therefore, the appellant is entitled for acquittal. 6. Learned Public Prosecutor on the other hand sought to sustain the conviction and sentence contending that P.Ws.1 and 2, who are residents of the same village are not in inimical to the appellant to implicate him in the commission of offence leaving aside the real culprit. 7. In view of the above submissions, the point that arises for consideration in this appeal is ‘whether P.Ws.1 and 2 are eyewitnesses to the incident and their evidence receives corroboration with the medical evidence to sustain the conviction’. 8. P.Ws.3 to 7 and 12 were declared hostile by the prosecution. The entire case of the prosecution rests upon the evidence of P.Ws.1 and 2, who are projected as eyewitnesses to the incident and also the medical evidence and recovery of material objects on the confession made by the appellant. P.W.1 in the first instance in Ex.P.1 stated that he came to know that prior to incident on falling a cracker (rocket) on the leg of A.3 on the occasion of Deepavali Festival, there was a quarrel between A.2 and the deceased and the deceased beat A.2. Then A.2 and A.3 left the place and went to the house of A.1 and informed him about the incident. On that A.1 with a knife used for cutting goats went to the Bridge and stabbed the deceased. Whereas, when he was examined in the Court, he deposed that at 9.00 p.m. on the Deepavali festival, he along with his friend-P.W.2 was taking tiffin in a hotel (Dhaba) and at that time, he observed quarrel/altercation between the deceased and accused and meanwhile, A.1 stabbed the deceased with a knife in the stomach and intestines came out from the stomach and the deceased fell down on the ground. On his enquiry with the persons gathered at the scene of offence, he came to know that prior to the incident there was a quarrel between deceased and A.3 and that the deceased beat A.2. He stated that at the time of incident A.2 and A.3 were present at the scene of offence. The knife which was used by A.1 was sharp object and it is having pidi. In the cross-examination he admitted that he did not mention in Ex.P.1 that the intestines came out of the deceased stomach. He shifted the deceased from the place of incident to the hospital on Hero Honda Motorcycle with the help of P.W.2 and that he drove the motorcycle. He went to the police station at 11.00 p.m. and he was examined by the police at that time. He admitted that there were no bloodstains on his clothes or on the clothes of P.W.2 while they were shifting the deceased from the place of incident to the Government Hospital, Tanuku on Hero Honda motorcycle. He signed on the admission register by the time of admission of the deceased in the hospital. While he was giving Ex.P.1 report, he saw M.O.1 at the police station and that he saw the accused in the police station on the date of incident in between 11.30 p.m. and 12.00 midnight. 9. The version of P.W.2 is that on 01.11.2005 at 9.00 p.m. while himself and P.W.1 were proceeding from the house of P.W.1 to Pulka center Dhaba, they observed a quarrel between the accused and the deceased near the wall belonging to one Rama Krishna, which is situated at the bridge of Pillakaluva. On seeing the quarrel they stopped and observed A.1 stabbing the deceased with a knife on his stomach. The deceased fell down on the road and intestines came from the stomach of the deceased. Himself and P.W.1 shifted the deceased to the Government Hospital. In the cross-examination, he admitted that himself and P.W.1 were examined by the police on the same day night. His clothes and the clothes of P.W.1 were not stained with blood while shifting the deceased on the motorcycle to the hospital. P.W.1 drove the vehicle. The deceased was placed on the motorcycle in between himself and P.W.1. P.W.8, father of the deceased deposed that on receipt of information about admission of the deceased in the hospital, he went to the hospital and came to know about the death of the deceased. He observed the dead body of the deceased and found three stab injuries on his stomach and intestines came out from the stomach of the deceased out of one injury. P.W.9 is the mother of the deceased who is not an eyewitness to the incident. P.W.10 is the brother of the deceased and he deposed in similar lines as that of P.W.8. P.W.12 was declared hostile. P.W.13 is the scribe of observation report-Ex.P.14. He has also signed on Ex.P.16- confessional statement of accused. P.W.14-doctor who conducted the post-mortem examination found a stab injury of 2” in length, spindle shaped and intestines were protruding out of the said wound. He issued Ex.P.18-post-mortem certificate stating that the deceased would appear to have died of shock and haemorrhage due to extensive injuries. He admitted in the cross-examination that in case of incised injury, the direction of injury is necessary to know it is a homicidal or suicidal. In case of stab injuries which are mentioned in the post-mortem certificate, generally blood would ooze from the wounds. There is a possibility that if any person having sustained the said three stab injuries sat in between two persons on motorcycle, the intestines of the injured would come out. But the M.O.1-knife was not put to the doctor to know whether the said injuries caused on the deceased are possible with M.O.1-knife. The investigating officer was examined as P.W.20. He deposed that during the inquest, he found three stab injuries on the dead body of the deceased. On the same day at about 4.00 p.m. on receipt of information about the accused, he along with his staff proceeded to the house of A.1 along with mediators-P.W.13 and another and arrested the accused at the house of A.1 and recorded their confessional statement under Ex.P.16. He admitted that P.W.1 did not state before him that on the date of incident P.Ws.1 and 2 were going to Orissa Dhaba, and that P.W.1 did not state before him that the incident was happened on the bridge of Pillakaluva. P.W.1 in his report-Ex.P.1 report did not mention about 3 stab injuries and intestines coming out from the injuries. P.Ws.1 and 2 were not examined by him immediately after giving Ex.P.1 report at the police station i.e. on 1.11.2005, but they were examined on the next day morning. In the F.S.L. report under Ex.P.23 no blood is detected on the butcher’s knife which is shown as item No.6. 10. From the above evidence, it is clear that P.Ws.1 and 2 have not stated about three injuries received by the deceased. In Ex.P.1 report the presence of A.2 and A.3 has not been mentioned but it is stated that the appellant-A.1 stabbed the deceased with butchers knife which is normally sharp at one edge. According to P.Ws.1 and 2, the deceased was taken to the Government Hospital from the scene of occurrence on Hero Honda motorcycle making him to sit in between P.Ws.1 and 2. When the deceased received three stab injuries and blood was oozing from those injuries, normally, the shirts of both P.Ws.1 and 2 would receive stains of blood of the deceased, but it is admitted that no such bloodstains were found on their clothes. The doctor-P.W.14, who conducted the post-mortem examination also admitted about oozing of blood from the wounds of deceased and he stated that there is a possibility of intestines coming out when the deceased was made to sit in between two persons on a motorcycle. Further the evidence of P.W.1 also destroys the case of the prosecution about the arrest of accused and seizure of weapon-M.O.1 etc. According to the prosecution, the accused was arrested on 02.11.2005 at 4.00 p.m. and M.O.1 was seized basing on their confessional statement. But P.W.1 categorically admitted that he saw M.O.1-knife and the accused in the police station on the date of incident itself in between 11.30 p.m. and 12.00 midnight, which itself clearly shows that by the time P.W.1 went to the police station, appellant was present in the police station along with M.O.1. Only after arrest of the accused, it appears, investigation was started by the police by receiving a complaint from P.W.1 under Ex.P.1 and a story has been created by projecting P.Ws.1 and 2 as eyewitnesses to the incident. In view of the same, it is highly unbelievable that P.Ws.1 and 2 shifted the deceased to the hospital from the place of occurrence. Further P.Ws.1 and 2 have not stated the number of injuries received by the deceased except P.W.1 mentioning in Ex.P.1 report that A.1 stabbed the deceased with the knife. Since the prosecution failed to explain the number of injuries received by the deceased from the evidence of P.Ws.1 and 2 whose ocular evidence has not been corroborated with the medical evidence, it is highly unsafe to convict the appellant solely basing on the evidence of P.Ws.1 and 2. Therefore, the learned Sessions Judge fell in error in convicting and sentencing the appellant-A.1 believing the evidence of P.Ws.1 and 2 as trustworthy. 11. In the result, the criminal appeal is allowed. The conviction and sentence recorded against the appellant-A.1 in S.C.No.366 of 2006 by the learned IV Additional Sessions Judge (Fast Track Court), Tanuku are set aside and he is set at liberty forthwith, if he is not required in any other case. Fine amount, if any, paid by the appellant shall be refunded to him. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J JULY 05, 2011 Tsr.