HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.68 OF 2007 Dated:15-06-2010 BETWEEN: Narapogu Venkati & Another. …Appellants AND State of A.P., Rep. by Public Prosecutor, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO.68 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice K.C.Bhanu) A.1 and A.2 in S.C.No.24 of 2006 on the file of III Additional Sessions Judge (Fast Track Court-II), Khammam, filed the present appeal challenging their conviction under Section 302 of Indian Penal Code, 1860 (for short ‘I.P.C.’) and sentence of imprisonment for life and to pay a fine of Rs.200/- each, in default, to suffer simple imprisonment for 30 days, each. 2. The case of the prosecution is that P.W.1 is the father, P.Ws.2 and 3 are the uncle and aunt of Narapogu Venkateswarlu (hereinafter referred as ‘deceased’). About 9 months prior to the incident, P.W.1 over-leaf A.1 to A.5 discussing that P.W.1 has done something against the daughter of A.1. On the date of incident i.e. on 11.12.2004 at about 6.30 p.m., the deceased went to Pendal near the buddy shop of P.W.5. In the meanwhile, A.1 also came there and asked the deceased to go away from that place. Then the deceased replied that the place where he stood does not belong to him. On that a wording altercation took place between them. Then A.1 beat the deceased with hands, as a result, he fell down on the ground. In the meanwhile, A.1 also called A.2 to A.5. On that, A.2 to A.5 also rushed to the scene of occurrence and beat the deceased with hands. Then P.Ws.2, 3 and 4 also came there, intervened and tried to rescue the deceased. Thereafter, while the deceased was proceeding towards his house, A.1 to A.5 chased him and near the Anganvadibavi, A.1 caught hold of deceased and stabbed him with a knife and when he fell down, A.2 also took out a knife and stabbed him. Thereafter, P.Ws.1 to 5, who were all witnessed the incident, shifted the deceased in the auto of P.W.6 to the hospital, wherein he was declared dead. Thereafter, P.W.1 lodged a report which is marked as Ex.P.1, on 11.12.2004 at about 10.00 p.m. On receipt of Ex.P.1 report from P.W.1, P.W.11, the Sub-Inspector of Police registered the same as a case in Crime No.100 of 2004 and issued First Information Report, which is marked as Ex.P.14. Then P.W.14, the then Circle Inspector of Police took over the investigation, visited the scene of offence on 12.12.2004, prepared an observation report of the scene and further held inquest over the dead body of the deceased in the presence of P.W.8 which are marked as Exs.P.9 and P.10, respectively. He further got the scene of occurrence photographed through P.W.7 and then forwarded the dead body for post-mortem examination. On receipt of requisition, P.W.12-Civil Assistant Surgeon of District Headquarters Hospital, Khammam, held autopsy over the dead body of the deceased and opined that the cause of death was due to injury to lungs and issued the Post-mortem report, marked as Ex.P.15. On 15.12.2004, A.2 to A.5 were arrested and at the instance of A.2, a knife (M.O.1) was recovered in the presence of P.W.9 under Ex.P.11 panchanama. On 21.12.2004, A.1 surrendered before the Court and on 27.12.2004 with the permission of Court, police custody of A.1 was taken and at his instance, a knife was recovered in the presence of P.W.10 under Ex.P.13 panchanama. Further investigation was taken over by P.W.13, the then Circle Inspector of Police, who got the Section 164 Cr.P.C. statements of P.Ws.1 to 4 recorded and forwarded the material objects to P.F.S.L. Ex.P.21 is the F.S.L. report. After receiving the relevant documents and on completion of investigation, charge sheet was filed. 3. The charges levelled against the appellants-A.1 and A.2 and other accused are as under: “FIRSTLY: That you A.1 and A.2 on or about 11.4.2004 at about 6.00 p.m. at Vandanam Village along with 3 others were members of an unlawful assembly and did in prosecution of the common object of that assembly namely in doing away the life of Narapogu Venkateswarlu, S/o.Venkata Ramulu of Vandanam Village, committed the offence of rioting and at that time were armed with deadly weapons to wit knives and thereby committed an offence punishable u/s.148 of Indian Penal Code and within my cognizance. SECONDLY: That you A.3 to A.5 in the same transaction at the same time and place as mentioned in charge No.1 were members of an unlawful assembly along with A.1 and A.2 in prosecution of the common object of that assembly namely, in doing away the life of Narapogu Venkateswarlu, S/o.Venkateswarlu of Vandanam Village, committed the offence of rioting and thereby committed an offence punishable u/s.147 of Indian Penal Code and within my cognizance. THIRDLY: That You A.1 and A.2 in the same transaction, at the same time and place as mentioned in charge No.1, committed murder intentionally causing the death of Narapogu Venkateswarlu, S/o.Venkata Ramulu of Vandanam Village, by stabbing him with knives in furtherance of common object of the unlawful assembly of you and A.3 to A.5 and thereby committed an offence punishable u/s.302 Indian Penal Code and within my cognizance. FOURTHLY: That you A.3 to A.5 along with A.1 and A.2 in the same transaction at the same time and place, as mentioned in charge No.1 were members of an unlawful assembly in prosecution of the common object of which namely to do away the life of Narapogu Venkateswarlu, A.1 and A.2 who were members of the said assembly caused the offence of murder which offence you knew to be likely to be committed in prosecution of the common object of the said assembly and you are thereby committed an offence u/s.149 I.P.C. guilty of causing the said murder, an offence punishable u/s.302 I.P.C. and without my cognizance.” 4. When the charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.21 besides the case properties-M.Os.1 to 7. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. When the accused were called upon to adduce evidence, they did not let in any evidence, but during the course of evidence of prosecution witnesses, Exs.D.1 to D.3 were marked. 7. The Trial Court upon consideration of evidence on record, placed reliance on the evidence of P.Ws.2 to 5, who are said to be eyewitnesses to the incident and found them guilty for the offence punishable under Section 302 I.P.C. and accordingly they were convicted and sentenced as above. Insofar as A.3 to A.5 are concerned, they were found not guilty of the charges under Section 147 and Section 302 r/w Section 149 I.P.C. and accordingly they were acquitted. Similarly, A.1 and A.2 were acquitted for the charge under Section 148 I.P.C. Challenging the conviction and sentence, the present appeal is filed by A.1 and A.2. 8. The learned senior counsel Sri C.Padmanabha Reddy appearing for the appellants contended that P.W.1 is not an eyewitness to the incident as seen from the F.I.R., that F.I.R. does not disclose the presence of P.Ws.2 to 5 as eyewitnesses to the incident, that P.Ws.2 to 5 are close relatives and friends of P.W.1 and they were planted witnesses in view of bitter political rivalry and these four witnesses were set up by the prosecution, that though the scene of occurrence is surrounded by residential houses, none of the independent witness was examined to speak about the incident, that there is absolutely no motive for the accused to commit the murder of the deceased, that Ex.P.1 does not disclose about A.1 and A.2 causing injuries to the deceased, that in view of the location of the houses of P.Ws.2 to 5, their evidence appear to be suspicious, that both the appellants were found guilty for the offence punishable under Section 302 I.P.C. simplicitor though the doctor did not specifically state which injury on the lungs is fatal or sufficient to cause the death of the deceased in the ordinary course of nature, that therefore, in the absence of any such evidence, benefit of doubt should be given to the appellants and hence he prays to set aside the conviction and sentence recorded against the appellants. 9. On the other hand, the learned Public Prosecutor contended that the presence of P.Ws.2 to 4 is quite probable and natural in view of the fact that their houses are located very close to the scene of occurrence, that similarly, the killi shop of P.W.5 is very close to the scene of occurrence and that the first instance took place very near to the houses of P.Ws.2 to 4 and thereafter, all the accused chased the deceased and ultimately, at Anganwadibavi, A.1 and A.2 stabbed the deceased with knives as a result of which, he died and that there is no other reason for P.Ws.2 to 5 to foist a false case of this nature against the appellants, that at the instance of A.2, M.O.1-knife was seized as it contained human blood of ‘B’ group, that the said knife was used in the commission of offence since the cloths of the deceased on analysis also would reveal the same human ‘B’ group of blood, and that the trial Court upon the proper appreciation of evidence on record, rightly found the appellants guilty for the charge under Section 302 I.P.C. and that there are no other grounds to interfere with the well reasoned judgment. 10. P.W.10 is one of the inquest mediators who were present when P.W.14 conducted inquest on the dead body of the deceased on 12.12.2004. The inquest mediators opined that the deceased died as a result of stab injuries. The apparent cause of the death of the deceased as spoken to by P.W.10 is not specifically denied or disputed. Even the accused did not deny or dispute about the death of the deceased as a result of sustaining two injuries on both the lungs. 11. P.W.12 is the doctor who conducted autopsy on the dead body of the deceased on 12.12.2004 between 3.00 and 5.00 p.m. found the following ante-mortem external injuries: “1. Abrassion 1 x ¼” on the anterior aspect of left leg, caused by blunt weapon, which is ante-mortem in nature. 2. Abrassions 3 in number, measuring about ½ x ½ cms. Size, just below injury No.1, caused by blunt weapon, which was ante-mortem in nature. 3. Stab injury 1 x 1 x 3”, which was situated on the medial side of right lower scapula, which was caused by sharp weapon, which was ante-mortem in nature. 4. Stab injury 1 x 1 x 2” size which was transversely situated on left side of back, at the level of T9 to T10, caused by sharp weapon, which was ante-mortem in nature.” He also found two internal injuries. He opined that the cause of death of the deceased to the best of his knowledge was due to shock due to injury to the vital organs i.e. lungs. Ex.P.15 is the post-mortem certificate issued by him. Nothing has been elicited to discredit the testimony of P.W.12 and the recitals in Ex.P.15. The medical evidence leaves no room to doubt that the deceased died as a result of stab injuries on both the lungs. Therefore, from the evidence on record, the homicidal nature of the death of the deceased is established beyond all reasonable doubt. 12. The motive for the incident as alleged by the prosecution is that about 9 months prior to the death of the deceased, P.W.1 over heard from the house of A.1 to A.5 that he (deceased) has done something against the daughter of A.1. That cannot be the motive for the incident. Even if the entire prosecution story is to be accepted, there is no immediate motive for the accused to do away with the life of the deceased. But the absence of motive or non-proof of motive by itself is not a ground to disbelieve the evidence of prosecution. Motive is not integral part of the crime. It is only an aid and assessment of the criminality. Simply because prosecution failed to establish the motive, that does not mean the accused are entitled for acquittal. If the prosecution story is otherwise truthful and trustworthy and acceptable, then there is no legal bar for basing conviction even in the absence of motive. 13. Coming to the actual incident, though P.Ws.1 to 5 were projected as eyewitnesses to the incident, P.W.1 on his own showing is not an eyewitness to the incident. Even P.W.1 who set the criminal law into motion by giving Ex.P.1 does not reveal that he was an eyewitness to the incident. Further, the evidence of P.Ws.2 to 5 would clearly go to show that P.W.1 came to the scene of occurrence after the deceased had fallen to the ground. It is the case of the prosecution that after receipt of two stab injuries, the deceased fell down on the ground. Therefore, the evidence of eyewitnesses P.Ws.2 to 5 has to be appreciated, as P.W.1 is shown to be an eyewitness to the incident. 14. P.W.2 is no other than the brother of P.W.1. P.W.3 is no other than the wife of P.W.2. P.W.4 is the wife of brother of P.W.1. P.W.5 is a childhood friend of deceased. From the evidence, it shows that the witnesses appear to be interested in the success of the case of the prosecution, but law is well settled that mere interestedness by itself is not a ground to disbelieve the evidence of prosecution witnesses, if their evidence is otherwise truthful, trustworthy and reliable. The evidence of P.Ws.2 to 5 is consistent with regard to A.1 and A.2 causing two stab injuries to the lungs of the deceased with knives. Their evidence is also clear that in the first instance, all the accused beat the deceased with hands at the center of the village where a pendal was raised to perform the Seetharamaswamy Kalyanam. That was the first place of occurrence where the appellants along with three other accused allegedly beat the deceased. On the advice of some of the prosecution witnesses, the deceased was running towards his house to save his life. When the deceased came near Anganwadibavi, A.1 and A.2 caused two stab injuries with their respective knives on the deceased. The distance between the first place of offence and the place where actually the deceased was stabbed by A.1 and A.2 near Anganwadibavi is about 50 to 60 yards. In such a case, P.Ws.2 to 4, who are closely related and P.W.5 who is a close friend of the deceased had every reason to follow the accused and see what had happened near the place of occurrence. 15. The place of occurrence is not in dispute because P.W.14 observed the scene of occurrence and prepared Ex.P.8 along with rough sketch under Ex.P.9. Even with regard to taking place of incident as spoken to by the prosecution witnesses, the accused did not deny or dispute about the scene of occurrence. In Ex.P.8, the house of P.Ws.2 and 3 and the killi shop of P.W.5 were shown. Therefore, from their evidence coupled with the recitals in Ex.P.8, it is established that their presence may be quite probable and convincing. Because they were present at the time of incident, they could be in a position to see how the incident had taken place. The incident is alleged to have taken place after 6.30 p.m. on 11.12.2004. The evidence of P.Ws.2,3 and 4 would clearly go to show that they live by cooli work. Their evidence would further disclose that they return to their respective houses at about 6.30 p.m. It is not unusual or unnatural for coolies to return to their houses after attending the cooli work at about 6.00 or 6.30 p.m. Therefore, the presence of P.Ws.2 to 4 at the relevant point of time is established. Similarly, the presence of P.W.5 in his killi shop is quite natural and probable. Therefore, if anything happened near to their place, it is quite possible for them to see the incident. The evidence of P.Ws.2 to 5 would clearly go to show that after hearing some commotion at the center of the village i.e. near Pendal raised for performing Seetharamaswamy Kalyanam, all these witnesses rushed to the place. At that time they found all the accused beating the deceased with hands. Then some among these witnesses advised the deceased to go away to save his life and some of the witnesses also requested the accused not to do any harm to the deceased. Therefore, in such circumstance, the deceased was running towards his house, but when he reached near Anganwadibavi, A.1 and A.2 caught hold of him and stabbed with their respective knives as a result of which, the deceased fell down. Immediately, the deceased was taken in the auto of P.W.6 to Kinnera Hospital, Khammam, where he was declared as dead. According to P.W.1, he took the dead body of the deceased in the same auto and kept it at his house and he went to the police station and lodged Ex.P.1 report with P.W.11 who registered a case. P.W.11 informed about the registration of case to P.W.14 at 10.00 p.m. on 11.12.2004. The surname of all the accused and the surname of the witnesses are one and the same. So, it can be inferred that they are closely related. Though it is suggested that there is political enmity between Communist Party of India (C.P.I.) and Communist Party of India (Marxist) (C.P.I.(M)), but it is not shown that the accused are the main and important leaders of one party so that the prosecution witnesses can implicate them falsely. In view of the fact that the incident has taken place during dusk time, there is every possibility for the eyewitnesses to identify the assailants of the deceased. There is no motive or reason for P.Ws.2 to 5 to foist a false case of this nature against the accused leaving the real assailants. In the entire cross-examination, nothing has been elicited that these witnesses were in bitter inimical terms with A.1 and A.2. Therefore, in the absence of any evidence, it cannot be said that due to bitter political rivalry between two groups, a false case is foisted against the appellants. When the presence of P.Ws.2 to 5 at the scene of occurrence is quite natural and probable and there is a scope for them to witness the incident, they would not have implicated the accused falsely leaving the real assailants. 16. The prosecution is also relying upon another circumstance with regard to arrest of A.2 and seizure of M.O.1 in pursuance of his disclosure statement under Ex.P.11. As seen from the evidence of P.Ws.9 and 14, A.2 was arrested and in pursuance of his disclosure statement, M.O.1-knife was seized under Ex.P.2 mahazar report. M.O.1 was sent to Forensic Science Laboratory for analysis. As seen from Ex.P.21 report, it contained human ‘B’ group of blood. The clothes of the deceased during inquest were seized and they were sent to F.S.L. and those clothes of the deceased also contained ‘B’ group human blood. Therefore, it is established beyond doubt that M.O.1 was the weapon used in the commission of offence. The seizure of M.O.1 at the instance of A.2 is an incriminating circumstance against A.2 because A.2 was the person who produced M.O.1 from the bushes situated near the tankbund. Therefore, the concealing of the weapon-M.O.1 by A.2 is exclusively within his knowledge. Thus, this circumstance also would clearly go to show that A.2 is one of the assailants of the deceased. Police sought for custody of A.1 from concerned Magistrate, he made a disclosure statement as in Ex.P.13, but there is no seizure in pursuance of the disclosure statement. Hence, the recitals in Ex.P.13 cannot come under the purview of Section 27 of Indian Evidence Act, 1872. 17. The contention of learned senior counsel for the appellants with regard to the evidence of P.W.1 in not witnessing the incident appears to be correct because as seen from the earliest report-Ex.P.1, it does not disclose that he is an eyewitness to the incident. Though he stated in his evidence as if he was an eyewitness to the incident, his presence was eliminated as eyewitness to the incident by P.Ws.2 to 5. Therefore, the trial Court rightly has not placed any reliance upon the evidence of P.W.1. Even if the evidence of P.W.1 is to be taken as an improvement made during the trial of the case, still there is unimpeachable evidence of P.Ws.2 to 5, which would clearly go to show that the appellants are the assailants of the deceased. It is one of the contentions raised by the learned senior counsel appearing for the appellants that the improvements or omissions elicited in the evidence of P.Ws.2 to 5 would disclose that they are not reliable witnesses. During the course of evidence, certain omissions have been elicited from the evidence of P.Ws.2 to 5. Those omissions can be stated as follows. P.W.2 did not state that the accused were beating the victim under the Pendal and that he came to the rescue of the victim. Similarly, he did not give any descriptive particulars of the knife. P.W.3 stated to the investigating officer that she returned home at about 6.30 p.m. after attending the cooli work, but she did not state to the Investigating Officer that she returned home at 6.00 p.m. Similarly, she did not state before the police that A.3 to A.5 were armed with sticks or that accused were chasing the deceased at the house of Narapogu Krishna. Similarly, P.W.4 did not state before the police that A.3 to A.5 instigated A.1 and A.2. Similarly, P.W.5 did not state that he would identify the knife. So, the above omissions/ improvements made by the witnesses are innocuous. If an improvement/omission goes to the root of the prosecution case, then it merits consideration. If the omissions or exaggerations or improvements made by the witnesses would not go to the root of the prosecution case, then much importance can be given to such omissions or exaggerations or improvements. Human memory is not a videograph to re-produce the sequence of events as it is. Due to lapse of time, some minor omissions/ improvements would bound to occur even in the case of a truthful witness who was made to depose about the incident after lapse of a long time. So, undue importance cannot be given to these minor omissions/exaggerations which are minor in nature. 18. It is one of the contentions of the learned senior counsel that none of the independent witness was examined though the incident had taken place in a busy residential locality. No-doubt, some residential houses were shown in Ex.P.8, but the non-examination of independent witness by itself is not a ground to discredit the prosecution witnesses unless it is shown that the non-examination of independent witness is fatal to the case of prosecution. The accused should have questioned the investigating officer as to the presence of any independent witnesses near the scene of occurrence or about his non- examination of independent witnesses. So, in these circumstances, it cannot be said that the prosecution deliberately withheld the independent witnesses or the police deliberately not examined any independent witnesses. Ordinarily, the relatives of the deceased are the best witnesses to come forward and say about the incident if really they were present. In a case of this nature, strangers or any independent witnesses may not come forward to speak about the incident especially it was a case of dispute between two