THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1362 OF 2004 ORDER: This appeal is directed against the conviction and sentence passed by the V Additional Sessions Judge, West Godavari at Eluru S.C.No.8 of 1999 on 18.06.2004. The appellant herein was prosecuted for the offence under Sections 458 and 302 IPC alleging that on 25.07.1997 at about 3.00 A.M. the accused entered into the verandah of the house of P.W.1 through the southern side gate with a tappers knife to commit theft of gold ornaments of the deceased Smt Annapurnamma and while the accused was removing the gold Nanthadu, the deceased woke up and caught hold of him and resisted him with her hands. The accused threatened the deceased with tappers knife and gave blows on her right hand and hacked her on the left side of the neck. On hearing the cries of the deceased Smt Annapurnamma, P.Ws.1 and 2 rushed to the spot and found the accused armed with tappers knife and pulling the Nanthadu from the hands of the deceased and causing injuries on the left side of the neck of the deceased. On the complaint of P.W.1, P.W.11 has registered the case and issued FIR in Crime No.28 of 1997 of T.Narasapuram Police Station and handover the investigation to the Inspector of Police, who visited the scene of offence and conducted the scene of offence Panchanama and got photographed the scene of offence and also conducted the inquest over the dead body of the deceased and seized the gold ornaments from the body of the deceased, who also seized the blood stained clothes of the deceased and got conducted postmortem on the dead body of the deceased and on 31.07.1997 arrested the accused and as per his confession recovered tappers knife and blood stained clothes of the accused in the presence of the mediators and remanded him to judicial custody. After completion of the investigation, he filed the charge sheet against the accused. The learned Sessions Judge has framed the charges under Sections 458 and 302 IPC against the accused and the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.14 and M.Os.1 to 16. The learned Sessions Judge by taking into consideration of the said oral and documentary evidence found the accused guilty for the offence under Section 458 IPC and convicted and sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.200/- in default to undergo simple imprisonment for a period of one month. He was also convicted for the offence under Section 304 Part II IPC and sentenced to undergo rigorous imprisonment for a period of 7 years and also to pay a fine of Rs.200/- in default to undergo simple imprisonment for one month. Aggrieved by the said conviction and sentence, the accused has filed the present appeal. Now, the point that arises for consideration is: Whether the prosecution could able to establish the offence under Sections 458 and 304 Part II IPC against the accused beyond reasonable doubt? P O I N T: Learned counsel for the appellant has pleaded that P.Ws.l and 2, who are the son and daughter-in-law of the deceased Smt Annapurnamma, who said to have come to the scene of offence and witnessed the incident, have stated that there was no power supply due to heavy rain at that time and by the time, they came to the deceased none were present except the deceased. As such the identity of the accused could not be established by the prosecution; and the accused is entitled for the benefit of doubt. Learned counsel for the appellant has further pleaded that P.W.3, who is the elder brother of P.W.1, who came to subsequent to arrival of P.Ws.1 and 2 has not stated about the occurrence of the incident, but according to him he has seen the accused ran away from the scene of offence with a knife. The independent witnesses P.Ws.4 and 5 have not supported the case of the prosecution. Learned counsel for the appellant has further pleaded that non examination of Investigating Officer in this case is fatal to the case of the prosecution. Learned Public Prosecutor, on the other hand, has pleaded that P.Ws.1 and 2 were not cross-examined immediately and they were cross-examined after long time, as such there is possibility of contradictions in their cross-examination and since they have specifically stated about their witnessing the accused hacking the deceased with knife, the minor discrepancies in their cross- examination cannot be fatal to the case of the prosecution. He further pleaded that P.W.3, elder brother of P.W.1 has also supported the version of P.Ws.1 and 2 with regard to accused committing the offence and the knife, which was used by the accused in the commission of offence, was seized at the instance of the accused from his house. Therefore, the prosecution could able to establish the charges under Sections 458 and 304 Part II IPC. According to prosecution, on 25.07.1997 at 3.00 A.M. while the deceased Smt Annapurnamma was sleeping in the Varandah of the house of P.W.1, the accused entered into the said house through the southern side gate armed with tappers knife with an intention to commit theft of gold ornaments and when he was trying to cut away the Gold Nanthadu, the deceased protested and caught hold of the same, then the accused threatened her with a tappers knife and gave blows on her right hand and hacked her on the left side of the neck. On hearing the cries of the deceased, P.Ws.1 to 3 came to the spot and on seeing them, the accused left the spot. P.W.1, who is the son of the deceased, in the chief- examination has stated that on 24.07.1997 he left to Jangareddigudem for purchasing of commodities for his business and returned to the house at 12.00 midnight, his mother served the supper and went for a sleep in the front Varandah. Thereafter, he looked after some accounts for an half hour and later went to sleep in the room. At about 2.30 A.M. , on that intervening night he head a hue and cry of his mother, he woke up and put on the light and opened the door way of his room. He noticed his mother was sitting on the cot and she is having suthram golusu in her left hand and pushing the accused and the accused hacked his mother with a knife and by the time, he came near his mother, the accused ran away, his wife also followed him. He further stated that his wife informed him that on the prior day evening the accused came to the shop and purchased commodities and also enquired about him. According to him, there were four bangles, one pair of ear studs and a nose stud on the body of his mother. When he went and secured the Doctor, and by the time of arrival of Doctor, his mother died. In the cross-examination, he admitted on the date of incident there was heavy rain and he also admitted that due to power failure it was dark. He also admitted that he has not seen the accused prior thereto and he is not having any enmity with the accused and the switches for the electrical lights are in the verandah. He further admitted by the time, he came to his mother, she is no more. He further admitted that by the time he came to his mother, none others were present except his mother. He also admitted that at the time he has not seen the accused. He also admitted that police informed him how to get the report drafted and accordingly he got drafted the report. P.W.2, wife of P.W.1, has stated that on hearing the cries of her mother-in-law, she followed her husband and noticed her mother-in-law was sitting on a cot and the accused hacking her mother-in-law on the left side of her neck with a Geethakathi. The accused removed the paradha in the varandah and went away towards the road. On hearing the cries, her brother-in-law came to the spot from the other direction of the house. In the cross-examination, she also admitted that there is a heavy rain at the time of the incident and there was no power supply and she further admitted that her husband opened the door and she followed her and noticed her mother-in-law died. By the time she went there, none others were present. They raised cries, on that her brother-in-law and his wife came there and she do not know how the incident was occurred. Therefore, both P.Ws.1 and 2, even though has stated about the witnessing of accused hacking on the left side of the neck of the deceased, have stated in their cross- examination that it was the dark night and as there was no power supply at the time of incident, they did not see how the incident has occurred and by the time, they came to the deceased, she was only present and none others were present there. Moreover, according to P.W.1 on the prior day evening the accused came to his shop and purchased commodities and enquired about him, but the said fact was not stated by P.W.2. The other witness P.W.3, elder brother of P.W.1 and elder son of the deceased, has also stated that on hearing the cries, he woke up and came to varandah, where his mother is sleeping, from the other side P.W.1 and his wife came there and he witnessed the accused running away from the varandah with a knife in his hands. He went near to her mother and noticed that she is in a pool of blood with an injury on her neck. In the cross-examination, he has stated that switches for the lights in the verandah are situated in the hall, but not in the varandah and there is no acquaintance between himself and the accused prior to the incident. He admitted by the time he went to the varandah near his mother none others were present except his brother, his wife and his injured mother. He further stated that when the accused running away, he called him and followed to some distance but could not apprehend him, but he has not stated this fact to the police. Therefore, as admitted by P.W.3, he has not witnessed the accused committing the offence by the time he came to the spot, P.Ws.1, 2 and his deceased mother were at the spot. The neighbours P.Ws.4 and 5 have only stated about their coming to the house of the P.W.1 and found the dead body of the deceased on the cot and did not state anything about the occurrence of the incident and about the involvement of the accused. The other witnesses examined by the prosecution are P.W.6 is the mediator for the scene of offence Panchanama and for the seizure of gold ornaments from the body of the deceased. P.W.7 is the V.A.O and he was the mediator for conducting of inquest over the dead body of the deceased. P.W.8 is the mediator for the arrest of the accused and recovery of knife used by him and his clothes at his instance. According to him, on 31.07.1997 at 8.00 A.M. near water tank of Racharyyla, noticed one person, then police apprehend the said person available there and when questioned him, he revealed his identity and he is the accused. He gave the particulars of the commission of the offence and he stated that he would show the weapon that was used by him in the commission of offence. In pursuance of the same, the accused led them to his house and went inside the house and brought the knife, a lungi and a shirt and the same was seized by the police. In the cross-examination, he admitted that M.O.14 knife appears to be new one and at present there are no blood stains on M.O.14. P.W.9 Photographer, he took photographs of the scene of offence. P.W.10 is the Doctor, who conducted autopsy over the dead body of the deceased and opined that the deceased might have been died of injury to vital blood vessels, that are supplying blood to brain, heamorage and shock. The evidence of P.Ws.4, 5, 6, 7, 9 and 10 establish the death of the deceased Smt Annapurnamma in her house on 25.07.1997 with injuries on her neck and their evidence will not point out the involvement of the accused in the commission of the offence. As discussed above, P.Ws.1 to 3 are only eyewitnesses to the incident and even though P.Ws.1 and 3 are the sons of the deceased and P.W.2 is the daughter-in-law of the deceased has changed their version in the cross-examination about their witnessing the accused at the spot and they have specifically stated that they have not seen the accused near the dead body of the deceased and by the time they have gone to the dead body of the deceased none others were present there and moreover P.Ws.1 and 2 have specifically admitted that there was no power supply at the time of the incident. Admittedly, none of the gold ornaments on the dead body of the deceased were lost. According to the prosecution, the motive for the commission of the offence is to commit the theft of gold ornaments from the body of the deceased. According to P.W.1, the accused came to their shop on the previous day and enquired about him and having come to know that he was absent in the village, the accused has attempted to commit the offence. But the said fact was not stated by P.W.2, who said to have informed the same to P.W.1. Therefore, even the motive for the accused to commit the offence was not established. With regard to arrest of the accused and recovery of weapon used by the accused in the commission of offence was only stated by the mediator P.W.8 and the Investigating Officer, who has conducted the investigation was not examined by the prosecution in support of the version of P.W.8. Even if M.O.14 seized at the instance of the accused, there is no material on record to connect the said weapon said to have been used by the accused in the commission of offence. Moreover P.W.8 admitted in the cross- examination that M.O.14 appears to be new and no blood marks were found on it. Even though, blood was found at the scene of offence and on the cloths belongs to the accused seized at this instance and also on the knife, the investigating officer has not taken any steps to send those articles for chemical examination to compare the blood group found on the articles belongs to same blood and is of human origin. Therefore, the prosecution has failed to connect the said weapon seized at the instance of the accused was used in the commission of offence by the accused. Therefore, as discussed above, there is a doubt with regard to identity of the accused as P.Ws.1 to 3 have given contradictory versions with regard to their seeing the accused at the scene of offence. Even though P.Ws.1 and 2 were cross-examined after long gap of time and as there is no supporting evidence to the version stated by them in their chief-examination, their evidence in the chief-examination cannot be relied upon. Moreover, the said witnesses P.Ws.1 and 2 were not declared as hostile to the prosecution. Moreover, as admitted by P.Ws.1 and 3 there are disputes between P.Ws.1 and 3, and P.W.2 and wife of P.W.3 with regard to the property and no partition has taken place in between them. In the above circumstances, it is not safe to rely upon the contradictory evidence of P.Ws.1,2 and 3 to convict the accused. Therefore, I hold that the accused is entitled to the benefit of doubt. Hence, the prosecution could not able to establish the charges under Sections 458 and 304 Part II IPC against the accused beyond reasonable doubt. In the result, the appeal is allowed. The conviction and sentence passed by the V Additional Sessions Judge, West Godavari at Eluru in S.C.No.8 of 1999 on 18.06.2004 is hereby set aside and the accused is accordingly acquitted for the offences under Sections 458 and 304 Part II IPC. _______________________ P.DURGA PRASAD, J 12th August, 2011 KSP