THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.129 of 2008 Dated:- 19th January, 2011 Between:- The State of A.P., rep by the Public Prosecutor, High Court of A.P. …Appellant AND Boya Gattanna and others …Respondent THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL APPEAL No.129 of 2008 JUDGMENT:- (Per Hon’ble Sri Justice B.Chandra Kumar) The State preferred this appeal challenging the judgment dated 30.11.2005 passed in S.C.No.167 of 2004 by the III Additional District & Sessions Judge, (FTC), Gadwal, whereby and whereunder, the respondents 1 to 5 herein were found not guilty for the offences punishable under Sections 147, 148, 302 r/w 149 IPC and accordingly acquitted. Respondents 1 to 5 shall be hereinafter referred to as accused 1 to 5 respectively. 2. The brief facts of the case are as follows:- The deceased – Boya Gaddanna and the accused 1 to 5 are residents of Thummalacheruvu village, Ghattu Mandal, Mahbubnagar District. The lands of the deceased and the accused are adjacent to one another. There were disputes between them. It is alleged that on 22.11.2002 at about 11:30 A.M., while the deceased was proceeding towards his fields, all the accused attacked him with sticks and knifes. Boya Govindamma – the daughter-in-law of the deceased was examined as P.W.2, and P.Ws.2 to 5 are alleged to have witnessed the occurrence. According to P.W.2, she raised huge cries. On hearing her cries, her husband Boya Buddanna, who was examined as P.W.1 rushed to the scene of offence. Seeing him, all the accused ran away. The deceased sustained severe injuries on his shoulder, head, leg and hand and he was immediately shifted to the Government Hospital, Gadwal. However, while undergoing treatment, the deceased died at about 03:00 P.M. Then, P.W.1 proceeded to the police station and lodged a written complaint basing on which, the police registered a case in Crime No.75 of 2002 under Sections 302 r/w 34 IPC. P.W.14 - the then Inspector of police visited the scene of offence and observed the scene of offence in the presence of mediators. Then he held inquest over the dead body of the deceased and examined the material witnesses. Then the dead body of the deceased was sent for postmortem examination. After conducting postmortem examination and completing investigation, the police laid charge sheet against the accused. 3. When the charges under Sections 147, 148, 302 r/w 149 IPC were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P.1 to P.14 and M.Os.1 to 9. None were examined on behalf of the accused, but Ex.D.1 – Date of white paper, Ex.D.2 – S/o. and W/o. on White paper, Ex.D.3 – Portion of 161 Cr.P.C. statement of P.W.2 and Ex.D.4 – Portion of 161 Cr.P.C. statement of P.W.5 were marked. 5. Learned III Additional District & Sessions Judge, (Fast Track Court), Gadwal, on appreciation of entire evidence on record, came to the conclusion that the prosecution failed to prove its case beyond reasonable doubt and accordingly acquitted all the accused. Challenging the said acquittal, the State preferred this appeal. 6. Sri D.Vinod Kumar, leaned Additional Public Prosecutor representing the State has submitted that there is no proper appreciation of evidence and the learned Sessions Judge did not consider the evidence of P.Ws.2 and 5. He has further submitted that P.W.2 is the natural witness to the incident and that she is none other than the daughter-in-law of the deceased and that she was present at the scene of offence at the time of incident and that she raised cries on seeing the incident and that her presence at the scene of offence cannot be doubted. It is also his submission that P.W.5 – Boya Hanumanthu had also witnessed the incident while he was on his way to the fields of P.W.3 and that there is nothing to disbelieve the testimony of P.W.5. It is also his submission that the learned Sessions Judge treated the case as if it is a case of circumstantial evidence and, therefore, the total approach of the learned Sessions Judge in treating the case is incorrect. It is also his submission that the evidence of P.Ws.1 and 2 speaks about the motive and the disputes between the accused and the deceased. It is also his submission that the prosecution witnesses specifically deposed with regard to the overtacts of accused No.2 and his evidence is corroborating with the medical evidence on record. In support of his contention that merely because a witness is related to the deceased, his evidence cannot be discarded, he has relied upon the judgments in case between State of U.P. Vs. Samman Dass[1] and Kunduu Vinaya Reddy @ Fatima Mareddy Vs. State of A.P.[2]. 7. Per contra, Smt. C.Vasundhara Reddy, learned counsel representing Sri C.Praveen Kumar, learned counsel for the accused, has submitted that though the prosecution cited P.Ws.2 and 5 as eye- witnesses to the incident, but in fact, they are not the eye- witnesses to the incident and they were falsely introduced as eye-witnesses. It is also her submission that P.W.2 did not state any specific overtacts against any one of the accused. It is also her submission that according to P.W.2, she was dragged by the second accused at the scene of offence but admittedly she did not sustain any injury on her legs and she was not treated by any doctor. It is also her submission that according to P.W.2, lunch box carried by her and chappals of the deceased were lying at the scene of offence when she left the scene of offence, but nothing was found at the scene of offence by the Investigating Officer when he observed the scene of offence. It is also her submission that a reading of evidence of P.W.5 reveals that by the time he went to the scene of offence, the accused had already fallen on the ground and he had specifically deposed that he did not notice as to who beat the deceased while he was standing and thus, a meticulous scrutiny of the evidence reveals that even P.W.5 had not witnessed the occurrence. It is also her submission that the medical evidence on record shows that only sticks which were not rough and thorny were used in the offence, but the material objects seized were rough and thorny and thus, the entire prosecution evidence is suspicious. Lastly she argued that the evidence on record does not inspire confidence and that it is not safe to convict the accused basing on such evidence. 8. The only point that arises for consideration in this appeal is whether the evidence adduced by the prosecution inspires confidence or not. 9. We have carefully considered the rival contentions and the entire evidence on record. There cannot be any dispute with regard to the propositions laid down by the Apex Court in case between State of U.P. (1 supra) and Kunduru Vinaya Reddy @ Fatima Mareddy (2 supra) which holds that merely because a witness is related to the deceased, his evidence cannot be discarded. The evidence must be cogent, convincing and reliable. It must inspire confidence and the version of the prosecution witnesses should be consistent. Where, in a case, it appears that a true case is not presented by the prosecution and the whole prosecution story appears to be improbable, then the accused cannot be convicted. In the instant case, P.Ws.2 to 5 are claiming to be eye- witnesses to the incident and admittedly, P.Ws.3 and 4 have turned hostile, therefore, we have to examine the evidence of of P.Ws.2 and 5 carefully. 10. P.W.2 – Boya Govindamma is none other than the daughter-in-law of the deceased. She deposed that on the date of incident, at about 10:30 A.M., she started from her house with lunch box to take lunch to her husband and to her father-in-law (the deceased). While she was proceeding, she had noticed the accused attacking her father-in-law near the fields of P.W.3 – Boya Pappu Govindu. She further deposed that she noticed the accused attacking her father-in-law with sticks and that when she tried to intervene, she was dragged towards hayrick by the accused Nos.2 and 5. It is also her specific case that the accused No.2 hacked her father-in-law with a knife and that the lunch box which she was carrying and also the chappals of her father-in- law fell down at the scene of offence and the earth at scene of offence was stained with blood. During the cross-examination, she has admitted that she cannot state the overtacts exactly against each accused. 11. The evidence of P.W.14 – the Inspector of Police and the Investigating Officer, who visited the scene of offence, creates a doubt about the presence of P.W.2 at the scene of offence. P.W.14 had categorically deposed that he had not noticed either food or any vessels containing food at the scene of offence and that he did not notice any chappal at the scene of offence. He further deposed that no blood was found nearby the scene of offence. When no blood was found by the Investigating Officer at the scene of offence, the evidence of P.W.2 that the deceased sustained blood injuries creates doubt as to the exact place of occurrence and the probability of shifting in the scene of offence also cannot be overruled. Thus, the evidence of Investigating Officer falsifies the evidence of P.W.2 and since her evidence is not inspiring confidence, the same cannot be relied upon to convict the accused. 12. Coming to the evidence of P.W.5 – Boya Hanumanthu, he deposed that he witnessed the incident and that all the accused beat the deceased with sticks and that the second accused hacked the deceased with knife. But admittedly, during his cross-examination, he had specifically deposed that he cannot say the overtacts of each accused exactly and that by the time he reached the scene of offence, the deceased fell down and that he did not notice as to who beat the deceased while he was standing. Thus, the evidence of this witness also is not inspiring confidence. 13. Admittedly, the evidence of P.W.12 – Dr.Sundaridevi, the doctor who conducted postmortem examination reveals that injuries 3 to 5 in the postmortem report could be caused by a stone hit and injuries 1, 6, 7 and 9 are simple contusions not accompanied by any abrasion or laceration. She had also categorically deposed that injuries 1, 6, 7 and 9 could be caused by a smooth stick but not by thorny, rough stick having irregular surface and injury No.11 could be caused by any pointed instrument. As pointed out by the learned counsel for the accused, the panchanama of the seized sticks reveals that the sticks were rough and one of it was irregular and thorny bush stick. Thus the ocular evidence is contradicting the medical evidence. 14. As stated above, except the evidence of P.Ws.2 and 5, there is no other evidence connecting the accused with the crime and no useful purpose would be served by discussing the other evidence in detail. 15. Thus, we hold that the learned III Additional District and Sessions Judge was right in finding the accused 1 to 5 not guilty for the offences punishable under Sections 147, 148, 302 r/w 149 IPC and acquitting them under Section 235(1) Cr.P.C. The appeal is devoid of merit and is liable to be dismissed. 16. In the result, the Criminal Appeal is dismissed confirming the judgment dated 01.12.2005 passed in S.C.No.250 of 2005 by the Principal Sessions Judge, Kurnool. _________________________ JUSTICE V.ESWARAIAH _______________________________ JUSTICE B.CHANDRA KUMAR 19th January, 2011 Bvv [1] AIR 1972 SC 677 [2] 2006 (1) ALD (Cri) 125 A.P.