HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2268 OF 2004 Dated 18-03-2011 Between: Bezawada Nagendrarao @ Musalaiah and another ……..Appellants And: State of A.P., rep. by PP., High Court of A.P. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2268 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the I Additional Sessions Judge, Krishna at Machilipatnam in S.C No.181 of 2002 dated 13.10.2004. The appellants herein were prosecuted for the offence under Section 302 read with 34 IPC. The case of the prosecution is that the deceased Kaila Venkata Sree Hari Raju, Bantumilli is a land lord and having illicit intimacy with A.3 long back and now he discarded her and further, he developed illicit intimacy with A.2 who is the wife of A.1. When the same was known by A.1, ill- feelings cropped up in between A.1 and A.2. Three days prior to the commission of offence, A.1 beat A.2 on the same issue and from the last three days i.e., since 28.2.2002, A.1 beat A.2 now and then and finally A.1 and A.2 came to a conclusion and hatched up a plan to do away the life of the deceased. A.3 who is also bearing grudge against the deceased joined hands with the A.1 and A.2. A.4 also having grudge against the deceased for the prevailing land disputes in between the deceased and the maternal uncle of A.4. Due to which, he also joined hands with the accused. As such, all the accused conspired at the house of A.1 and on 3.3.2002, at the house of A.1 all the accused are waiting to kill the deceased while he is returning from his fields. Accordingly, on 3.3.2002, at about 4.00 p.m., while the deceased coming from his fields to his house on his motor cycle and when the deceased reached the scene of offence, A.2 and A.4 all of a sudden came from the house of A.1 which is situated opposite to the cattle shed of the deceased and A.2 sprinkled chilly powder into the eyes of the deceased. A.3 hacked him with a knife and caused bleeding injury on the rear side of the head. A.1 also hacked him with a knife and caused bleeding injuries on the body of the deceased indiscriminately. A.4 stopped the motor cycle of the deceased by putting the Thungala banda across the motor cycle of the deceased and as a result of which, the deceased fell in the near by drainage canal from his motor cycle. A.2 and A.3 kicked him with legs and pressed him for not coming out from the drain. A.3 squeezed the testicles of the accused. After confirming the death of the deceased, the accused escaped from the scene of offence and while escaping, A.1 and A.2 secreted the knives which were used by them in the commission of offence on the upstairs of their building. A.4 escaped from the scene of offence along with Thungalala banda and reached his house through the Malleswaram Canal and threw away the Crime weapon Thungala banda and later reached his house. After the commission of offence, all the accused took the shelter in the house of A.4 in the night of 3.3.2002. The learned Sessions Judge has framed the charges under Section 302 IPC against A.1 to A.3 and under Section 302 read with 34 IPC against A.4 and the all the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges, examined 14 witnesses on their behalf and got marked Exs.P.1 to P.11 and M.Os.1 to 11. In defence, D.W.1 was examined on behalf of the accused and got marked Exs.D.1 to D.4. The learned Sessions Judge by taking into consideration of both oral and documentary evidence found A-1 and A.3 guilty for the office under Section 302 Part-I and convicted and sentenced to undergo rigorous imprisonment for a period of 9 years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for a period of 3 months each. A.2 and A.4 were found not guilty and they were acquitted. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Section 302 Part-I against the appellants who are A.1 and A.3 beyond reasonable doubt? The learned counsel for the appellants has pleaded that the motive for commission of the offence as per the FIR is the political rivalry but whereas in the charge sheet, it was mentioned that the deceased having illicit-intimacy with A.3 initially and later discarded and developed illicit-intimacy with A.2 and the same is contrary to each other. The next contention of the learned counsel for the appellants is that the complaint was given by P.W.1 in her own hand writing but the same was suppressed by the investigating agency and brought Ex.P.1 into picture said to have been scribed by un-known person and whereas P.W.3 has stated on the same day of the incident at 7.00 p.m itself the police have come to the spot and recorded the statement of the witnesses. Therefore, even prior to lodging of complaint Ex.P.1, the investigation was already started. Therefore, the said complaint Ex.P.1 is not the original complaint given by the complainant and she has given the complaint at the spot itself and the same was suppressed by the investigating agency for the reasons best known to them. The next contentions of the learned counsel for the appellants are that the alleged eye witnesses P.Ws.2, 3, 4 and 5 are related to the deceased and they are only interested witnesses and without any corroboration by the evidence of independent witnesses, their evidence cannot be relied upon. On behalf of the Public Prosecutor, it is argued that P.Ws.2 to 5 are eye witnesses who were present at the time of incident as they were returning from their field at the time of incident they are the only probable witnesses for incident and they have categorically stated about the overt acts of the accused and simply because they are related to the deceased, their evidence cannot be discarded. According to the prosecution, P.Ws.2 to 5 are the eye witnesses to the incident and P.W.3 has come to the scene of offence and informed P.W.1 about the same and then she rushed to the spot and seen the dead body of her husband and gone to the police station and lodged the complaint. According to P.W.1, on the date of incident while she was attended to her work at 5.00 p.m, P.W.3 came and informed her that her husband was killed by A.1 to A.4 when he was coming from the fields on motor cycle and when the deceased reached the scene of offence, A.2 and A.4 all of a sudden came from the house of A.1 which is situated opposite to the cattle shed of the deceased and A.2 sprinkled chilly powder into the eyes of the deceased. A.3 hacked him with a knife and caused bleeding injury on the rear side of the head. A.1 also hacked him with knife and also caused bleeding injuries on the person of the deceased indiscriminately. A.4 stopped the motor cycle of the deceased by putting the Thungala banda across the motor cycle of the deceased and as a result of which, the deceased fell in the near by drainage canal from his motor cycle. A.2 and A.3 kicked him with legs and pressed him for not coming out from the drain. A.3 squeezed the testicles of the accused and A.2 pressed the neck of the deceased and consequently, her husband died and all the accused escaped from the scene of offence. According to her, Ex.P.1 is the complaint given by her. In her chief-examination, she has not stated anything against the accused for the motive to commit the offence. In the cross- examination, she has stated that the P.W.3 K. Vijaya Lakshmi came to her house one hour after the incident. She went to the scene of occurrence within five minutes after P.W.3 informed her about the occurrence and at about 8.00 p.m, the police came to the scene of occurrence and Ex.P.1 was drafted by her and it is in her hand writing. Except, Ex.P.1 report, she did not give any other report. Again she has stated that Ex.P.1 is not in her hand writing and she did not go to the police station, Bantumilli on that day. She admitted that Ex.P.1 does not contain the recital that her husband was coming from the field on his motor cycle and there is no mention that the scene of occurrence is situated by the side of her cattle shed and it does not contain that A.2 sprinkled chilly powder in the eyes of her husband and A.3 hacked her husband with knives and A.4 kept Thunagala Banda across the motor cycle and she also admitted that she has not specifically mentioned that A.2 and A.3 pressed the deceased in the canal by not allowing him to come out from the said canal and she admitted that she has mentioned A.2 squeezed the testicles of her husband and consequently her husband died. In Ex.P.1, it was mentioned that on 3.3.2002 evening at 4.00 p.m when her husband returning from fields and when reached near their site situated near the burial ground A-1 to A-4 formed a group and with a common intention attacked her husband and pushed into aside in drainage canal and distressed him with legs and murdered him and he died due to respiration to breath. P.Ws.2 to 5 were present at the scene of offence and informed her about the murder her husband and according to her, her husband was murdered due to political rivalry. According to P.W.13, A.S.I who has registered the Crime No.18 of 2002 has stated that on 3.3.2002 at about 8.00 p.m, he received a report/Ex.P.1 from P.W.1 and then he registered the Crime No.18 of 2002 With regard to lodging of the complaint, Ex.P.1, P.W.1 has stated that initially she has given in her own hand writing, but on seeing the Ex.P.1 she has stated that it was not in her hand writing and she does not know who drafted the Ex.P.1 complaint, but she subscribed her signature. As already mentioned above, the said complaint does not contain the specific overt acts of the accused. P.W.1 also admitted the same. But according to P.W.1 immediately after coming to know about the incident she came to the spot. P.Ws.2 to 5 who informed about the incident to P.W.1 with the specific overt acts of the accused and the same was stated in her chief examination and thus she came to know about the specific overt acts prior to the lodging of the complaint Ex.P.1. But the same was not mentioned in Ex.P.1 and thus it creates a doubt about the specific overt acts spoken by the P.W.1 and other witnesses. According to the prosecution, P.Ws.2 to 5 are the eye witnesses to the incident and according to them they were coming from their fields along with their cattle and when they reached near the burial ground, the deceased overtook on his motor cycle and they were coming beyond him and when they reached gate of A.1’s house, A.2 stopped and sprinkled chilly powder on his eyes and A.1 and A.3 hacked the deceased indiscriminately with the knives on his head, neck and hands. A.4 stopped the motor cycle of the deceased by putting Thunagala Banda across the motor cycle of the deceased and all the accused pushed him from his motor cycle on the ground and hacked him and pushed into the drainage canal and thereafter A.2 squeezed the testicles of the deceased. All of them admitted that they are related to the deceased and P.W.2 is the uncle. P.W.3 is the wife of P.W.2 and P.W.4 is the son of P.Ws.2 and 3. P.W.5 is residing in the cattle shed of the deceased along with her husband. But as admitted by them none of them has tried to rescue the deceased from the hands of the accused. The learned counsel for the appellants has stated that when eye witnesses said to have been related to the deceased have not made any attempt to rescue the deceased from the hands of the accused, it is doubtful about their presence at the time of offence and in support of his contention, he relied upon a decision rendered in State of Punjab v. Sucha Singh and others[1] wherein the Apex Court has held: “Eye-witness, father of the deceased did not try to rescue his son who sustained as many as 24 injuries, conduct makes his presence doubtful.” In the present case, P.Ws.2, 3 and 4 were closely related to the deceased but they have not made any attempt to rescue the deceased and it is not their case that when they tried to rescue the accused they threatened them. Therefore, in view of the above, it is doubtful about their presence at the time of offence. P.W.5 is residing in the cattle shed of the deceased and according to her on the date of occurrence at 4.00 p.m she was waiting near the gate of the cattle shed of the deceased and witnessed the incident and she also narrated the overt acts of the accused as stated by P.Ws.2 to 4. In the cross-examination, she has stated that the deceased has sustained eight injuries, they are on his neck, head, shoulders, right thigh, on his waist, on his back and on his chest. She has seen all these injuries on the dead body of the deceased after the accused left but she has not seen who inflicted those injuries as she was in confused state. Therefore, P.W.5 herself has admitted that she has not seen who has inflected the injuries on the deceased. More over her presence is also doubtful at the time of incidence as she stated that P.W.1 came within one minute after the incident to the spot which is not the case of the P.W.1 or P.Ws.2 to 5. P.W.2 has stated that the entire incident of attacking the deceased Venkataraju took place about ten minutes. During the said ten minutes none of them tried to intervene and rescue the deceased Venkataraju. They raised cries during the said ten minutes. There are several residential houses around the scene of offence. None among the neighbour hood near the scene of offence came on hearing their cries. P.W.3 who is the wife of P.W.2 does not speak about the raising of the cries at the time of incident. P.W.4 is the son of P.Ws.2 and 3 has stated that when they tried to rescue the deceased, the accused threatened them by showing knife and he admitted that he did not state before the police that they tried to rescue the deceased and he also admitted in the cross-examination that he do not remember whether he stated before the police that A.2 and A.3 hacked the deceased on his neck and A.1 hacked with a knife on his hands and he could not say about any other witnesses apart from them. Therefore, according to P.W.2, the incident has taken place in between the residential houses and none of them come to the scene of offence even though he raised cries. In view of the above said evidence of P.W.2, the appellant’s counsel has pleaded that the non presence of the any neighbours at the time of incident shows a doubt about the occurrence of the incident itself. With regard to recording of statement, P.W.3 has stated that the police came to the scene of offence at 7.00 p.m and examined her and she has narrated the incident and likewise, they also examined P.Ws.2 and 3 and recorded their statement and P.W.5 was also present at that time when the police recorded her statement. Therefore, according to P.W.3, their statement was recorded even prior to lodging of Ex.P.1 complaint. According to the prosecution, P.W.6 has seen the accused leaving from the spot after the incident and P.W.7 has stated that he is having a mechanical shed near the place of incident and at the time of incidence he was working in the shed and he heard the cries and then he came to the gate of his shed and noticed that the A.1 to A.3 going on the road and they were armed with knives and he has gone to the spot and found the dead body of the deceased. In the cross-examination, he has stated that half an hour after the first hearing cries, he heard again cries not to kill his cousin brother (deceased). He does not know the names of A.2 and A.3. None of the neighbours of the locality were seen at the time of his visit to the scene. Therefore, P.W.6 is not an eye witness to the incident but he only came after half an hour of hearing the cries but according to P.Ws.2 to 5, the incident took place for only 10 minutes. Therefore, the evidence of P.W.6 cannot be relied upon. P.W.7 is the mother of the deceased she has not witnessed the incident. P.W.8 has come to the spot and noticed the dead body of the deceased and P.W.9 is the photographer who has taken photos to the scene of offence and dead body of the deceased. P.W.10 is the Panchayat Secretary and according to him, he scribed the scene of observation report on 4.3.2002 and seized M.Os.1 to 7 and also seized the M.O.8 is the blood stained control earth and M.O.9 is blood stained earth. He was present when the police held the inquest over the dead body of the deceased. According to the investigating officer P.W.14 at the time of scene of observation Panchanama he seized M.Os 1 to 9 and he was present when the inquest was held over the dead body of the deceased and the same was drafted by P.W.10. With regard to the injuries sustained by the deceased, Doctor P.W.11 who has conducted autopsy over the dead body of the deceased has found 6 injuries i.e., 1. A lacerated wound of 3”x1” bone deep over right side of occipital region, blood clot present. 2. Two incised wounds of 2” long x 1/8” width over the back of neck, muscle deep. 3. Diffuse swelling of right shoulder with two linear incised wounds of 1” length, skin deep. 4. Diffuse swelling of left shoulder. 5. Incised wound of 2”x1/4” over upper 1/3rd of right fore-arm muscle deep, dark red colour. 6. Abrasion of 3”x3” over right knee cap, dark red. According to him, the said injuries are ante mortem in nature. In the cross-examination, he admitted that before commencement of the postmortem, he was furnished with a copy of the inquest report. He has gone through the injuries mentioned in the inquest report. He has to verify whether the injuries mentioned in inquest report were found on the dead body of the deceased or not. As per Ex.P.4 inquest report, the mediators have found eight injuries. The injuries are not tallying the injuries mentioned in postmortem report. More over according to P.W.11, he did not find any injuries on the genital organs and they were intact. Therefore, the injuries found at the time of inquest were not tallying with the injuries found at the time of postmortem by the doctor. Therefore, the medical evidence is not supporting the version of the prosecution with regard to the nature of injuries sustained by the deceased. It is a specific case of all the witnesses that A.3 squeezed the testicles of the deceased but no injuries are found by the doctor who conducted the postmortem on the testicles. According to the Doctor who conducted the postmortem, the cause of death due to obstruction of the air passage but not due to the injuries sustained by him. In the complaint Ex.P.1 also it was mentioned that the deceased died due to respiration of breathing. Therefore, P.W.1 herself in her complaint has stated that the death was due to respiratory problem and not due to the injuries caused by the accused. Therefore, from the above evidence, it is evident that the said complaint was got prepared subsequently after coming to know about the cause of death of the deceased. According to the prosecution, on 4.3.2002, P.W.14 who is the Investigating Officer has arrested the accused and in pursuance of their confession seized M.Os.10 and 11 P.W.14 has received the information that the accused are moving in Malleswaram village and on that himself and his staff and mediators proceeded to Malleswaram village and found A.2 to A.4 were standing in the bus shelter for boarding a bus and immediately, he arrested them and got recorded their confessional statements at the bus-shelter from one after another. In pursuance of their confessional statements given by the A.2 to A.4 they went to the house of A.1 and seized two knives under the cover of Ex.P.7 drafted by P.W.12 and another at the instance of A.2 and A.3. P.W.12 is the mediator for the arrest and seizure of M.Os.10 and 11 has also supported the version of the investigating officer with regard to seizure of M.Os.10 and 11 at the instance of A.2 and A.3 from the house of A.1. Thus, the prosecution could able to establish the recovery of M.Os.10 and 11 at the instance of A.2 and A.3 from the house of A.1. With regard to Thungala Banda said to have been used by A.4, P.W.1 has stated that the said Thungala Banda fell into the drainage canal and P.W.2 has stated that she do not know what happened to the said Thungala Banda and P.W.14 who is the Investigating Officer has not spoken anything about the Thungala Banda said to have been used by A.4. But according to the charge sheet, A.4 has taken away the said Thungala Banda and thrown it away in the river. But no evidence was adduced in that regard and the same was also not recovered by the Investigating agency. Mere recovery of M.Os.10 and 11 at the instance of A.2 and A.3 in the house of A.1 cannot be said that they have used the said weapon for commission of the offence. As none of the witnesses said to have been present at the time of incident have identified M.Os.10 and 11 as the weapon used by A.1 and A.3. With regard to motive for commission of offence, as already observed above that in Ex.P.1 complaint, the P.W.1 has stated that the motive for commission of the offence is political rivalry but whereas the P.Ws.2 to 5 said to be the eye witnesses have stated that the incident has taken place due to illicit-intimacy developed by the deceased with A.2 and A.3. Except P.Ws.2 and 3 stating that the illicit-intimacy of the deceased with the A.2 and A.3, no specific instances were brought on record. On the other hand, the Investigating Officer P.W.14 in his cross-examination has stated that as per his record of investigation dated 3.3.2002, there is no information that there was any sexual enmity between the accused and the deceased. In the chief-examination, he also did not speak any thing about the motive for commission of the offence. Therefore, the prosecution has failed to establish the motive for commission of the offence. The next point raised by the learned counsel for the appellants is that when A.1 and A.4 are acquitted who are the said to be involved in the same incident, the other accused A.1 and A.3 are not liable to be convicted for the offence under Section 304 Part-I IPC. The learned Sessions Judge has believed the evidence of P.Ws.1 and 4 but without giving any specific reasons found the A.2 and