THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1736 of 2009 Date: 16.12.2009 Between : The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. … Appellant And Boya Jakalacheruvu Srinivasulu, aged 26 years, s/o. Bojjanna, Bandageri, Peapully village, Boya Caste, Kurnool District and others. … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1736 of 2009 ORAL JUDGMENT: (per the Hon’ble Sri Justice D.S.R.Varma) Heard learned Public Prosecutor, appearing for the appellant- State, as well as the learned counsel appearing for the respondents- Accused Nos.1 to 6. 2. Appellant is the State and respondents are A.1 to A.6 in the Sessions Case. 3. This Criminal Appeal, by the State, under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 is directed against the judgment, dated 12.10.2006, in Sessions Case No.267 of 2005, passed by the I Additional District and Sessions Judge, Kurnool, acquitting A.1 to A.6 for the offences punishable under Sections 148 and 302 of Indian Penal Code (for brevity “I.P.C.”). 4. The case of the prosecution, in brief, is that on 13.1.2004 at about 8-00 p.m., the deceased-Obaiah, Chinna Balaiah and D.C. Venkataramudu beat A.1 and caused injuries to him for which a case in Crime No.4 of 2004 was registered. Since then A.1 bore grudge against the deceased and was waiting for an opportunity to take revenge against him. While so, on 14.6.2006 at about 8-30 p.m., the deceased took his son Mahesh along with his brother-in-law on a motor cycle to R.T.C. bus stand at Peapully. After getting his son and brother-in-law boarded in a bus and while he was returning to home on the motor cycle, the accused on coming to know about the deceased coming alone on a motor cycle, formed themselves into an unlawful assembly, armed with cart peg, sickles and knife with common object to kill him and when the deceased reached near the house of Chinna Peddu, all the accused chased the deceased and killed him. On hearing the cries of the deceased, P.Ws.1 and 3 came to the scene of offence and on seeing them, all the accused ran away. The deceased was taken to Praja Vydyasala, Peapully, in a rickshaw and as per the advise of the doctors, he was shifted to Government Hospital at Dhone, where he was declared dead. Basing on Ex.P-1 complaint given by P.W.1, wife of the deceased, a case in Crime No.81 of 2004 of Peapully Police Station was registered and took up investigation. After completion of investigation and necessary formalities, the police laid the charge sheet against the accused for the offences punishable under Sections 148 and 302 I.P.C. against all the accused. 5. When the charges framed were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 27 and got marked Exs.P-1 to P- 18, besides marking the material objects MOs.1 to 15. On behalf of the accused, none were examined except marking Exs.D-1 to D-6, relevant portions of Section 161 Cr.P.C. statements of P.Ws.2, 3, 4 and 12. 7. The Court below, having considered the entire material including the evidence, both oral and documentary, available on record, found all the accused not guilty of the offences with which they were charged and accordingly acquitted them of the said charges. Aggrieved by the same, the State has preferred the present criminal appeal. 8. We have perused the impugned judgment rendered by the Court below and carefully gone through the material and the evidence available on record. 9. Now, the point that arises for consideration, in this Criminal Appeal is whether the Court below has rightly appreciated the evidence on record before arriving at the conclusion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt? 10. P.Ws.1, 3, 11 and 12 were cited as eye witnesses. The Court below, after conducting a thorough scrutiny as to the veracity of the evidence of the said witnesses, arrived at the conclusion that their evidence cannot be believed. In order to arrive at the said conclusion, the Court below had cited several discrepancies touching upon the material aspects. 11. P.W.1, wife of the deceased, deposed that on the fateful day, the deceased left home at 8-30 p.m., to drop his son, P.W.5 and brother-in-law of the deceased were waiting at the bus stand to get them boarded in a bus, and since the deceased did not return home even after 9-30 p.m., P.W.1 went to the house of P.W.3, who was her mother, and informed that her husband did not return home and asked her to inform about the same to P.W.4, the brother-in-law of the deceased and ask him to go in search of her husband. Accordingly, she said to have informed about the same to P.W.4 and again came back P.W.1 and while both of them were going to the house of P.W.1 and reached the house of Komati Lakshmaiah, they heard the cries and noticed some persons throwing stones in a channel and among them A.1 was found armed with stick and others were found unarmed. It was admitted by P.Ws.1 and 3 that the distance between their houses was hardly about 50 yards and both their houses are visible from the house of another. But they specifically admitted that they cannot see from their houses what is happening near the house of Komati Lakshmaiah. In such a case, it was pointed out by the Court below that when the houses of P.Ws.1 and 3 could be visible from the house of another, it was not necessary for P.W.3 to accompany P.W.1 upto her house and hence the evidence of P.Ws.1 and 3 cannot be believed, inasmuch as they cannot see what was happening in front of the house of Komati Lakshmaiah. 12. Further, it was pointed out by the Court below that as per Exs.P-1 and D-1 to D-3, the deceased was attacked with sickles and knives. But, as per the evidence of P.Ws.1 and 3, the deceased was attacked by A.1 with stick and the other accused threw stone and ran away from the scene of offence without any weapon in their hands. Even in the narration of events, the Court below found that there is grave discrepancy between the evidence of P.Ws.1 and 3 regarding the weapons that were alleged in possession and used by A.1 in the commission of offence. 13. It was also noticed by the Court below that there is no mention about the presence of P.Ws.10, 11 and 12 in the complaint made by P.W.1 as well as in the evidence of P.Ws.1 and 3. Further, though the prosecution examined P.Ws.10, 11 and 12 as eye witnesses, they did not state about their presence any where in their evidence. 14. Similarly, according to the evidence of P.Ws.7, 8, 9 and 21, on hearing the sound of galata, they came out of their respective houses and noticed the deceased with injuries and after some time the inmates of the other houses came there and some time thereafter P.Ws.1 and 3 came there and took the injured with them. Therefore, this is another aspect, which establishes that P.Ws.1 and 3 were not present at the time of occurrence nor did they witness the commission of offence at the hands of the accused. On the contrary, they came near the scene of offence only after the commission of offence. Therefore, the evidence of P.Ws.1 and 3 that they witnessed the commission of offence at the hands of the accused was disbelieved by the Court below. 15. Of course, P.Ws.7 and 21 were treated as hostile. So far as the evidence of other witnesses i.e., P.Ws.8 and 9 is concerned, they did not support the case of the prosecution with regard to the aspect of the presence of each other at the scene of offence. 16. Coming to the evidence of P.W.11, who also claims that he witnessed the incident, deposed that he went to Kallur of Anantapur District on the alleged date of incident and while returning from Kallur, he got down the bus at Kalachatla cross road at Peapully and as there were no buses to go to his village Mandoddi, he wanted to sleep on that night in the house of the deceased and while going, he found A.1 to A.6 chasing the deceased and he noticed A.1 holding a stick and A.2 and A.3 were armed with sickles and A.4 was armed with knife etc. But he did not produce any bus ticket with regard to his going to Kallur on that particular day and about his travelling upto Peapully from Kallur. Further, according to P.W.11, while going towards the house of the deceased, he reached near the turning at the house of the deceased and by standing near the hayrick yard which was at a distance of 50 feet away from the scene of offence and also from the house of the deceased, he saw the incident. But, the Court below noticed from the rough sketch and the observation panchanama for the scene of offence, Exs.P.15 and P.6, respectively, and the evidence of P.W.26 investigating officer, there was no hayrick yard nearby the scene of offence and there was absolutely no chance for him to see the incident in the manner stated by him. 17. It was further pointed out by the Court below that the Police Station at Peapully was hardly within 400 yards from the scene of offence and P.W.11 being closely related to the deceased and though the other brother of the deceased was staying at Mandoddi, this witness did not inform about the incident to anybody till he was examined by the police on 16.6.2004 at his village Mandoddi. There are various other discrepancies, that have been considered, in detail, by the Court below basing on the evidence on record and eventually arrived at the conclusion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. 18. Therefore, the reasons assigned by the Court below, while arriving at the conclusion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt, in our considered view, are cogent and the evidence on record was well appreciated before arriving at such a conclusion. 19. For the foregoing, the criminal appeal fails and is liable to be dismissed as having no merits. 20. In the result, the criminal appeal is dismissed, at the stage of admission, confirming the judgment, dated 12.10.2006, in Sessions Case No.267 of 2005, passed by the Court below. _________________________ JUSTICE D.S.R.VARMA __________________________ JUSTICE R. KANTHA RAO 16.12.2009 Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1736 of 2009 16.12.2009 (Msr)