THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1036 OF 2004 ORDER: This is an appeal directed against the conviction and sentence passed by the Assistant Sessions Judge, Gurazala in S.C.No.713 of 2003 on 02.06.2004. The appellants herein were accused Nos.1 to 5 and they were prosecuted for the offences under Sections 324 and 307 read with 34 IPC. The case of the prosecution is that P.W.3 lent an amount of Rs.10,000/- to accused No.1 for his business, but he did not return the same in spite of several requests made by P.W.1. On 07.09.2001 at about 10.30 P.M. when accused No.1 intercepted P.W.1 at Radha hotel centre, Erukala Colony, Piduguralla, P.W.3 asked for money. Then accused No.1 abused him in filthy language and took up quarrel. Thereafter, accused No.1 went to his house and all the accused armed with deadly weapons like hunting sickle, axe etc., attacked P.W.3. Accused No.1 axed P.W.3 in right abdomen, accused No.2 axed P.W.3 on left shoulder, accused No.5 axed P.W.3 on right shoulder, accused No.3 sickled P.W.3 on head, accused No.4 beat P.W.3 with hunting sickle on abdomen. The same was witnessed by P.Ws.1 to 6 and P.W.10. P.Ws.4 and 10 shifted the injured P.W.1 to the Police station, where P.W.11 has recorded his statement and registered the same as a case in Crime No.268 of 2001 under Sections 324 and 307 read with 34 IPC. Subsequently, Sub- Inspector of Police L.W.13 took up investigation and examined the witnesses, inspected the scene of offence in the presence of mediators and arrested accused Nos.1 and 2 and seized two axes under a cover of mahazar and filed the charge sheet. The learned Assistant Sessions Judge has framed the charge under Section 307 IPC against accused Nos.1 to 5 and charge under Section 324 read with 149 IPC against accused Nos.1 to 5. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined 11 witnesses i.e. P.Ws.1 to 11 and got marked Exs.P.1 to P.10 and M.Os.1 to 4. No oral and documentary evidence was produced on behalf of the accused. The learned Assistant Sessions Judge by taking into consideration of the oral evidence of P.Ws.3, 4 and 5, even though the prosecution has declared them as hostile and relying upon the decision rendered in “Pubi Satyanarayana @ Satteyya v. State of Andhra Pradesh reported in 1995 Crl.L.J 1738”, convicted accused Nos.1 to 5 for the offence under Section 307 IPC and sentenced them to undergo Rigorous imprisonment for a period of 5 years each and also to pay fine of Rs.1,000/- each in default simple imprisonment for a period of two months each. Aggrieved by the said conviction and sentence, the present appeal is filed by accused Nos.1 to 5. Now, the point that arises for consideration is: Whether the prosecution could able to establish the charge under Section 307 IPC against accused Nos.1 to 5 beyond reasonable doubt? P O I N T: According to the prosecution, P.W.3 lent an amount of Rs.10,000/- to accused No.1 for his business, but he did not repay same in spite of several requests made by P.W.3. On 07.09.2001 at about 10.30 P.M. when accused No.1 intercepted P.W.3 at Radha hotel Centre, Erukala Colony, Piduguralla, P.W.3 questioned him for the money, for which accused No.1 abused him in filthy language and left the place and came back along with other accused armed with deadly weapons and attacked P.W.3 with an intention to kill him. Even though, the prosecution has examined 11 witnesses all the eye witnesses P.Ws.1 to 6 and P.W.10 have completely turned hostile to the prosecution stating that they did not witness any incident. The mediator P.W.7 for the arrest of accused Nos.1 and 2 and recovery of M.Os.1 and 2 also turned hostile to the prosecution. P.W.9 mediator for the scene of observation report also turned hostile to the prosecution. The complainant and his wife and daughter i.e. P.Ws.3, 4 and 5 even though stated about the occurrence of the incident in detail and also about the specific overt acts of each of the accused as alleged by the prosecution in the chief –examination but turned hostile to the prosecution case in the cross-examination P.W.3 complainant/injured has gone to the extent of stating that when he was proceeding to his house from Radha hotel somebody attacked him and he did not witness as to who attacked him and he became unconscious while he went to the police station and he do not know the contents of Ex.P.3. P.W.4, his wife also narrated about the specific overt acts of each of the accused in the chief- examination, but in the cross-examination she stated that she was not present at the time of incident and she was in Dr. Anjireddy Hospital at Piduguralla. P.W.5, daughter of the complainant P.W.3, has specifically stated about the specific overt acts of the accused and causing injuries to P.W.3 in her chief-examination, but in the cross-examination, she has stated she was not present at her house and she was at S.C. Hostel, Guntur. P.W.3 also in his cross-examination has also stated about his wife undergoing treatment at Hanimireddy hospital, Piduguralla and his daughter P.W.5 studying in S.C. hostel, Guntur as on the date of the incident. Therefore, even the victim, his wife and his daughter have resailed from their earlier version with regard to accused attacking and causing injuries to P.W.3. Apart from the evidence of P.Ws.3 to 5, the other evidence available on record is P.W.8 Doctor, who has issued Ex.P.7 wound certificate and P.W.11 Investigating Officer, who has issued the F.I.R. and seized the blood stained clothes from P.W.3 and conducting the scene of offence Panchanama and arresting of accused Nos.1 and 2 and recovery of M.Os.1 and 2 at their instance, but his evidence with regard to the arresting of accused Nos.1 and 2 and recovery of M.Os.1 and 2 was not supported by mediator P.W.7. The learned Assistant Sessions Judge has relied upon the decision reported in 1995 Crl.L.J. 1738 and relied upon the evidence of P.Ws.3, 4 and 5 as stated by them in their chief- examination and also by relying on Ex.P.7 wound certificate found the accused guilty for the offence under Section 307 IPC. In the decision reported in 1995 Crl.L.J. 1738, the Division Bench of this Court has considered about relying upon the evidence of material witnesses turning hostile when they were cross-examined after long lapse of time. The Division Bench has observed that “it has been noticed by this Court that with a view to get the matter adjourned, either the advocate is not present and even if the advocate is present, he reports that there are no instructions from his client. It has also to be noticed in cases like this that when cross-examination is deferred and when it was done on a subsequent date, the subsequent version of the witnesses contradict with the earlier version.” It is further observed that “since the resiling attitude has been taken by the vital witnesses and the earlier version is consistent with the medical evidence and other evidence independent of hostile witnesses, we feel that the second version given by hostile witnesses after considerable time cannot be accepted. Further, the other witnesses have corroborated the earlier version given by the hostile witnesses” and thereby held that the learned Judge has rightly convicted the accused even though the cross-examination of P.Ws.1,2 and 4 had taken after quite sometime and correctly appreciated the evidence on facts and circumstances of the case and confirmed the conviction given by the learned Sessions Judge. In the above said decision apart from P.Ws.1, 2 and 4, who resiled from the earlier version, there are other independent witnesses and medical evidence supporting the earlier version of P.Ws.1, 2 and 4. But in the present case, all the independent witnesses, who are said to be eyewitnesses to the incident turned hostile to the prosecution and P.Ws.3, 4 and 5, who are the complainant, his wife and daughter have resiled from their earlier version stated by them against the accused and their version is not corroborated by any other independent witnesses. Therefore, the above said decision referred to by the learned Assistant Sessions Judge is not applicable to the facts of the present case. Therefore, it is not safe to rely upon the interested evidence of P.Ws.3, 4 and 5, who subsequently resiled from their earlier version. Thus, I hold that the prosecution has failed to establish the offence under Section 307 IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed by setting aside the conviction and sentence passed by the Assistant Sessions Judge, Gurazala in S.C.No.713 of 2003 dated 02.06.2004 and the accused are acquitted for the offence under Section 307 IPC. _______________________ P.DURGA PRASAD, J 27th July, 2011 KSP