THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1446 of 2007 Date: 06.08.2009 Between : AkkalaThathabbai Naidh and another. … Appellant And State of A.P., rep.by Public Prosecutor, High Court, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1446 of 2007 JUDGMENT : (per the Hon’ble Sri Justice R.Kantha Rao) Heard Sri C.Padmanabha Reddy, learned Senior Counsel representing Sri C.Praveen Kumar, learned counsel appearing for the appellants and the learned Public Prosecutor, appearing for the respondent-State. 2. Appellants are Accused Nos.1 and 2 in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 17.10.2007, in SC.ST.SC. No.49 of 2005, passed by the I Additional Sessions Judge-cum-Special Sessions Judge for Trial of Cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act, 1989, East Godavari District, Rajahmundry, whereby and whereunder appellants-A.1 and A.2 were convicted for the offence punishable under Section 302 of Indian Penal Code (for brevity “I.P.C.,”) and each of them was sentenced to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, in default to suffer Simple Imprisonment for a period of three months. 4. In all, four accused persons A.1 to A.4 were put up for trial before the learned Sessions Judge for the charges (1) under Section 302 I.P.C. against A.1; (2) under Section 302 read with Section 34 I.P.C. against A.2; (3) under Section 302 I.P.C. read with Section 34 I.P.C. read with Section 109 I.P.C. against A.3 and A.4; (4) under Section 3 (1)(x) of S.Cs. and S.Ts. (Prevention of Atrocities) Act against A.1 and A.2; and (5) under Section 3 (2)(v) of S.Cs. and S.Ts. (Prevention of Atrocities) Act against A.1 and A.2. 5. The learned Additional Sessions Judge acquitted A.3 and A.4 of all the charges and acquitted the appellants-A.1 and A.2 for the charges under Section 3 (1)(x) of S.Cs. and S.Ts. (Prevention of Atrocities) Act and also for the charge under Section 3 (2)(v) of S.Cs. and S.Ts. (Prevention of Atrocities) Act. However, convicted A.1 and A.2 for the offence under Section 302 I.P.C. and sentenced them as stated supra. 6. The case of the prosecution, in a nutshell, is as follows: P.W.1 is the father and P.W.2 is the brother of the deceased. The deceased, A.3 and A.4 belong to Madiga caste. A.1 and A.2 belong to Kapu community. About two years prior to the date of the incident, A.1 developed extra-marital relationship with A.3 and often used to visit A.3. On that the caste elders convened a meeting and informed the father of A.3 i.e., A.4, A.2 the brother of A.1 and to Sarpanch. It is said that they replied that there is nothing wrong of their caste men visiting the other caste women. On 14.4.2004 at about 8-00 p.m., the deceased, his elder brother and Vangalapudi Raju and some other boys sat at the Dandora Chapta. A.1 came there on his cycle and abused the deceased and others who were present there touching their caste and further for not standing up when he came there, who belong to Kapu community. Then P.W.1 who was also present there requested A.1 with folded hands to leave the boys. Then A.1 stated that the Dandora Dimma was constructed in his site and he will get it demolished by night and will see the persons sitting will be set on fire, so saying he went to the house of A.3 which is at a distance of 10 or 20 yards and telephoned to some one. Thereafter three persons came there, then A.1 along with them removed the pendal sticks and the pendal fell down. They all beat the boys and deceased who were present and they were injured. A.1 further threatened them that he will hack the sons of P.W.1. The said incident was reported to the Sarpanch and to the police. Three days thereafter P.W.1 visited Police Station for not taking any action on the report given by him and A.S.I. of Police informed him to contact the S.D.P.O. 7. On 20.4.2004 at about 2-00 p.m., the deceased and P.W.2 started on a cycle, the deceased was riding and P.W.2 was sitting on pillion seat. At about 3-00 p.m., when they reached the culvert, and when they entered the road leading to Amalapuram-Challapalli, they noticed A.1 and A.2 standing by the side of the road near shops. When they reached nearby A.1 hacked the deceased with a curved knife on his right wrist and when he further tried to hack on left hand, P.W.2 who got down from the cycle and ran back to a distance of ten yards. The deceased on receiving injuries fell down from the cycle and ran to a distance of five yards towards coconut tope. A.1 and A.2 chased him and hacked him with knives on his chest, neck etc., and then fled away on their motor bike. Then P.W.2 took his cycle, went back to his house and informed the same to his parents. On that information, they all visited the scene of offence at about 6-00 p.m. Thereafter a report was lodged in Amalapuram Taluk Police Station. 8. On 21.4.2004 in the early hours at about 4-30 p.m., on receiving Ex.P.1 report from P.W.1, P.W.6 the Head Constable registered a case in Crime No.49 of 2004 and issued F.I.R. Which is marked as Ex.P.8. He then informed the same to his superior officers and on their instructions he visited the scene of offence. On receiving information about the registering the F.I.R., P.W.7, the then Additional Superintendent of Police, took up investigation, visited the scene of offence, held panchanama and prepared rough sketch of the scene in the presence of P.W.4 which are marked as Exs.P.2 and P.16, respectively. He then dispatched the dead body to Area Hospital, Amalapuram and on 21.4.2004 from 8-00 a.m., to 11.00 a.m., he held inquest over the dead body in the presence of P.W.4 which is marked as Ex.P.3 and then forwarded it for postmortem examination. 9. On 21.4.2004 on requisition P.W.5 C.A.S., Amalapuram held autopsy over the dead body and opined that the cause of death was due to acute respiratory arrest and haemorrhagic shock. Ex.P.7 is the postmortem report. 10. On 4.5.2004, A.1 and A.2 surrendered before the Court. Then P.W.7 took custody of A.1 and A.2 from 7.5.2004 to 10.5.2004. During the course of interrogation, at the instance of A.1, a curved knife (MO.8) and blood stained clothes (Mos.11 and 12) were recovered from his house and at the instance of A.2 a knife (MO.7) and blood stained clothes MOs.13 and 14 were recovered under Exs.P.4 and P.5 panchanama. Thereafter they were produced before the Court. On 27.5.2004 he sent the material objects to R.F.S.L. Ex.P.19 is the F.S.L. report. After receiving the relevant reports and on completion of investigation P.W.7 filed the charge sheet. 11. The prosecution in order to establish the guilt of the accused examined P.Ws.1 to 7 and marked Exs.P-1 to P-19, besides marking material objects MOs.1 to 14. On behalf of the defence, D.W.1, a staff nurse was examined and marked Exs.D.1 to D.9. 12. On consideration of the entire evidence on record, the learned trial Court convicted and sentenced the appellants A.1 and A.2 for the offence punishable under Section 302 I.P.C., as stated supra and acquitted A.1 to A.4 for the remaining charges. Assailing the said judgment the present criminal appeal by the appellants-A.1 and A.2. 13. P.W.1 is the father of the deceased. He lodged Ex.P.1 report with the police on the information conveyed by his son P.W.2, who was aged about 12 years as on the date of incident. P.W.2 is the only eye-witness according to the prosecution. P.W.3 is a witness, who belongs to the group of P.W.1 and he spoke about the illicit intimacy between A.1 and A.3 and the Sarpanch and other elders of the village used to state that they will speak about the illicit intimacy. 14. P.W.4 is the Panchayat Secretary, who is a panch witness in this case. According to him, he was present at he time of observation of the scene of offence by the police, at the inquest and also claims to be present when P.W.7-the Sub Divisional Police Officer, Ramachandrapuram, recovered Mos.6, 9 and 10. He also spoke about the disclosure statement made by A.1 and A.2, pursuance of which recoveries were made, the admissible portions of the said statements are marked as Exs.P.4 and P.5, respectively. 15. P.W.5 is the autopsy Surgeon, who found 15 ante- mortem injuries on the body of the deceased. He opined that the cause of death was due to acute respiratory arrest and Hemorrhagic shock on account of injuries to vital structures of neck like trachea and major vessels of neck. He issued Ex.P.7 postmortem report. 16. P.W.6 is the Head Constable of Amalapuram Taluk Police Station, who basing on the report lodged by P.W.1, registered a case in Crime No.49 of 2004 under Section 302 read with 34 I.P.C., Section 3 (1)(x) of SCs.STs. (POA) Act and issued Ex.P.8 F.I.R.. 17. P.W.7 is the Sub-Divisional Police Officer, Ramachandrapuram, who is the investigating officer in this case. 18. Though there is a reference about the disputes between the group leaders of the appellants and the people of Madiga Dandora, the investigation in this case was confined only to the incident in which the deceased was done to death. However, the evidence of material witnesses in the prosecution, namely P.Ws.1 to 3, indicates that there was rivalry between both the groups and as a consequence thereof some incidents took place prior to the incident. 19. P.W.2 is the eye-witness according to the prosecution and the learned trial Court rested the conviction of A.1 and A.2 mainly on the evidence of P.W.2 and also on the evidence of recovery of weapons as well as blood stained earth, control earth and a pair of Hawai chappals made by P.W.7 the investigating officer in the presence of P.W.4 and others in pursuance of confessions allegedly made by A.1 and A.2. P.W.4 and P.W.7, however, deposed as to the said recovery in their evidence before the trial Court. 20. P.W.2 stated in his evidence that on 20.4.2004 while he and his deceased brother were proceeding on a cycle during afternoon to know the results of the examination appeared by him in Gurukula Patasala at Peruru and when they reached Samanasa village at about 3-00 p.m., and reached the culvert, and while crossing the culvert they entered into a road leading to Amalapuram-Challapalli, they noticed a motor cycle parked by the side of the road near shops. He noticed A.1 and A.2 stood by the side of said parked motor cycle and when he and the deceased, who was peddling the cycle, reached them A.1 hacked the deceased with a curved knife on his right wrist and when he tried to hack on the left hand of the deceased, P.W.2 who got down from the cycle and ran back in the same direction to a distance of 10 yards. 21. He further deposed that the deceased on receiving injuries fell down from the cycle and ran to a distance of 5 yards towards coconut tope. A.1 and A.2 chased him and in that coconut tope they hacked the deceased with knives on his chest, on his neck and other parts of the body and thereafter they flew away on the motorcycle towards Amalapuram. He further stated in his evidence that he proceeded to the house on the cycle, there he fell down and became unconscious. One hour thereafter he regained consciousness and thereafter when his father (P.W.1) enquired him, he narrated the incident. Thereafter his parents and the village elders came to the place of occurrence and saw the dead body of the deceased and on seeing the dead body of the deceased, P.W.1 his father fell down and became unconscious. In the early hours i.e., after sun rise the police examined him at Area Hospital, Amalapuram, when he visited the hospital. 22. It is mainly basing on the above evidence of P.W.2, the trial Court recorded the conviction for the offence punishable under Section 302 I.P.C. against both the appellants/A.1 and A.2 23. Sri C.Padmanabha Reddy, learned Senior Counsel appearing for the appellants would submit that the incident according to the prosecution occurred at 3-00 p.m., on 20.4.2004, whereas the report was lodged at 4-30 a.m., on 21.4.2004 in the Police Station which is situated at a distance of 4 kms, the version in Ex.P.1 report lodged P.W.1 which is based on the version of P.W.2 is at variance on material aspects with the version of P.W.2 before the trial Court, more particularly with regard to the participation of A.2 in the commission of offence, admittedly, as per the version of the material witnesses of the prosecution, there were deliberations among the people of prosecution party and the trial Court erred in recording conviction basing on the evidence of P.W.2 and, therefore, the conviction and sentence are liable to be set aside. 24. On the other hand, the learned Public Prosecutor appearing for the respondent-State would contend that despite the fact that participation of A.2 in the commission of offence being doubtful, having regard to the facts and circumstances of the case, the evidence of P.W.2 is consistent insofar as A.1 and, therefore, the conviction of A.1 has to be upheld. 25. We have given our anxious consideration to the submissions made by the learned Senior Counsel appearing for the appellants as well as the learned Public Prosecutor appearing for the respondent-State. 26. Admittedly, there is a delay of 13 ½ hours in lodging the F.I.R. in the Police Station situated at a distance of 4 kms from the place of occurrence. In some cases, a few hours delay becomes fatal to the case of the prosecution where the delay is not properly explained, whereas in some cases the delay of some days also may not be fatal. It all depends upon the facts and circumstances of each case. 27. Before appreciating the fact whether the delay can be said to be fatal to the prosecution or not, it has to be kept in mind that whether on account of delay there was any possibility for the prosecution to introduce a false and distorted version. In any event, whenever there is a delay, the Court has to scrutinize the evidence of eye witnesses with great care and circumspection. 28. Reliance is placed by the learned Senior Counsel appearing for the appellants in RAM KUMAR v. STATE OF M.P.[1] wherein it is held as under: “No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case it had been made by the father of the murdered boy to whom all the important facts of he occurrence, so far as they were known upto 9.15 p.m. on 23.3.1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.” 29. It is contended by the learned Senior Counsel that non- mentioning the name of A.2 in Ex.P.1 report lodged by P.W.1, who is no other than the father of P.W.2, and also the participation of A.2 in the commission of offence are very important factors in testing the veracity of the evidence of P.W.2-eye witness, who in his evidence has categorically spoken to the fact of A.1 and A.2 hacking the deceased with knives. 30. Apparently, the delay in lodging Ex.P.1 report has not properly been explained by the prosecution and the said fact obligates the Court to scrutinize the evidence of P.W.2-eye witness with great care and caution, we therefore, would examine the evidence of P.W.2 carefully and decide its veracity in the light of the contents of Ex.P.1 report lodged by his father and the other surrounding circumstances. 31. P.W.2 is a child witness, aged about 12 years on the date of incident. He belongs to opposite group and he is the brother of the deceased and son of P.W.1. As such, we cannot lose sight of the fact that P.W.2 is not only a child witness, but also an interested as well as partisan witness susceptible for tutoring. Thus, his evidence has to be scrutinized with much more care and caution. 32. It is true that merely because the evidence of P.W.2 is not acceptable against A.2, it is not a ground to discard his testimony, if it is convincing and reliable insofar as A.1 is concerned. However, the main aspect to be considered is, if the evidence of P.W.2 is tested on the probability factor, whether a positive and definite finding can be reached as to the presence of P.W.2 at the scene of offence at the relevant point of time? 33. From the evidence of P.W.1 as well as the investigating officer P.W.7, there is no manner of doubt whatsoever as to the fact that Ex.P.1 report was lodged by P.W.1 after due deliberations with the people of Madiga Dandora. P.W.1 has specifically stated the said fact in his deposition also. Therefore, there is a positive version of the prosecution witnesses to the effect that F.I.R. was lodged after consultations and discussions with the caste group of P.W.1. 34. Further, the conspicuous absence of mentioning the name of A.2 and referring to the assailants as A.1 and another person, and the act of hacking with knife was only attributed to A.1 in Ex.P.1 report, Ex.P.1 report thus creates any amount of doubt as to whether P.W.2, really was present at the time of incident or not? If he witnessed the incident in the manner as is stated in his evidence before the trial Court, he would have furnished the names of A.1 and A.2 to his father-P.W.1 and there is absolutely no possibility for P.W.1 to omit the name of A.2 in Ex.P.1 report. 35. Furthermore, in the police statements as well as in the evidence before the Court, P.W.2 stated the names of A.1 and A.2 as the persons who attacked and hacked the deceased with knives. 36. As regards the recovery of weapons as well as blood stained earth, control earth and a pair of Hawai cheppals made by P.W.7 the investigating officer in the presence of P.W.4 and others on the confessional statement of A.2, though both the witnesses testified the said fact, we are unable to place reliance on the said aspect for the simple reason that as per Ex.P.1 report, A.2 did not participate in the commission of offence and the recovery of blood stained cloths and knife from his possession basing on his confession is quite unconvincing. In any event, the recovery of the material objects is only subsidiary and when no reliance can be placed on the evidence of sole eye witness, the evidence of recovery, even if believed, is of no consequence. 37. For all the above stated reasons, we are of the considered view that the presence of P.W.2 at the relevant point of time of the commission of offence is very much doubtful and it is quite unsafe to base a conviction mainly on his evidence, since he is a child witness, aged about 12 years. Further, he is interested as well as inimical to the appellants in view of the rivalry between the groups of his father and the appellants. Therefore, the trial Court ought to have given the benefit of doubt to both the appellants which they are entitled to and consequently the conviction and sentence recorded by the trial Court against the appellants is liable to be set aside. 38. In the result, the Criminal Appeal is allowed, setting aside the judgment of conviction and sentence, dated 17.10.2007, in SC.ST.SC. No.49 of 2005, passed by the I Additional Sessions Judge-cum-Special Sessions Judge for Trial of Cases under the S.Cs. and S.Ts. (Prevention of Atrocities) Act, 1989, East Godavari District, Rajahmundry, against appellants-A.1 and A.2, for the offence punishable under Section 302 I.P.C., and they are acquitted of the said offence. 39. The appellants-A.1 and A.2 shall be released forthwith, if not required in any other case. The amount of fine paid, if any, shall be refunded to them. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE R.KANTHA RAO 06.08.2009. Msr THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.1446 of 2007 06.08.2009 (Msr) [1] AIR 1975 SC 1026