THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.196 of 2009 Date: 22.04.2010 Between : Julakanti Madhava Reddy and others. … Appellants And The State of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.196 of 2009 ORAL JUDGMENT: (per the Hon’ble Sri Justice Raja Elango) Heard Sri T.Bali Reddy, learned Senior Counsel, representing Sri K.Suresh Reddy, learned counsel appearing for the appellants- accused as well as the learned Public Prosecutor appearing for the respondent-State. 2. Appellants are Accused Nos.1 to 12 in the Sessions Case. 3. This Criminal Appeal is directed against the judgment, dated 09.02.2009, in Sessions Case No.211 of 2008, passed by the IX Additional Sessions Judge (Fast Track Court), Guntur, convicting the appellants-Accused Nos.1 to 12 for the offences under Sections 148 and 302 read with 149 of Indian Penal Code (for brevity “IPC”) and sentencing them to undergo Rigorous Imprisonment for life each for the offence Section 302 IPC and also sentenced to undergo Rigorous Imprisonment for three years and also to pay a fine of Rs.1,000/- each, in default to suffer Simple Imprisonment for three months each for the offence under Section 148 IPC. 4. The case of the prosecution, in brief, is that Veldurthi in Guntur District, which is at a distance of 18 kms to Macherla, is a faction ridden village. One faction is affiliated to Telugu Desam Party and the other to Congress Party. There are cases and counter cases between them. 5. It is alleged by the prosecution that about 40 days prior to the incident, one J.Laxma Reddy was murdered and the deceased belongs to Telugu Desam Party. Accused in that case belongs to Congress Party and they were in jail. Nevertheless, it is said that the witnesses to the murder decided to leave the village due to fear of the accused therein. But, one Julakanti China Venkata Reddy, who is the deceased in this case, assured them that nothing would happen and they should give evidence in the murder case. Aggrieved by his conduct, the accused intended to eliminate him. This according to the prosecution is the motive. 6. While so, on 11.10.2007 at about 5-00 p.m., P.Ws.1 to 4 and the deceased left their village in a jeep for the purpose of buying a new motor bike and pesticide at Macherla. They reached Macherla at 5-45 p.m., went round the shops, but their purpose was not achieved. All of them went to Ambedkar Centre to hire a jeep or an auto. While P.Ws.1 to 4 were waiting near Balaji Kirana Shop, the deceased left them stating that he would buy sweets and bananas for them. Within 10 minutes i.e., about 7-15 p.m., they saw the deceased being chased by 12 accused with axes. Accused No.1 is alleged to have hacked on the left leg of the deceased. When the deceased fell down, all the accused surrounded and hacked on his legs with axes indiscriminately in front of a pesticides shop. They left the scene leaving 4 axes. Scene of occurrence being a business centre and also stand for jeeps and autos, number of persons witnessed the occurrence. P.Ws.1 to 4 went near the injured and found him lying unconscious. Immediately they shifted him to hospital where he was declared dead by the doctor. Thereafter P.Ws.1 and 2 went to Police Station, which is at a distance of ¼ km, 1.3 furlongs. P.W.1 borrowed a paper from the A.S.I. of Police and got a report written by P.W.2 to his dictation. P.W.1 himself wrote to some extent and tore. P.W.13 copied the report. It was then 8-30 p.m. The A.S.I. of Police-P.W.13 registered a case in Crime No.119 of 2007 under Sections 147, 148, 302 read with 149 IPC. He sent FIR along with the report to the Magistrate whose residence is at a short distance of 10 mts walk. The Magistrate received the FIR Ex.P-12 at 7- 30 a.m., on 12.10.2007 i.e., after 12 hours. 7. P.W.15, the C.I. of Police took up investigation, went to the scene of offence first and then to hospital. He went 3rd time at 5-30 a.m., and prepared observation report under Ex.P-6 in the presence of P.W.10 and another. He seized 4 axes. Later he held inquest before the same mediators between 7-00 a.m., and 9-30 a.m. Even before FIR reached the Magistrate, inquest was started. Ex.P-7 is the inquest report. Autopsy was conducted by P.W.14 between 9-30 a.m., and 11-30 a.m. He noticed 6 cut injuries on left leg and 2 cut injuries on right leg and issued Ex.P-13 Postmortem Examination Report. 8. During the course of investigation, P.W.15 arrested Accused Nos.1, 3 to 11 on 7.11.2007 and recovered 6 axes (MO-6) near Kothapalli Donka situated on the way from Macherla to Nagarjuna Sagar in the presence of P.W.11 Village Revenue Officer, Macherla. Exs.P-8 and P-9 are the discovery statements and recovery panchanama, respectively. On 26.11.2007 Accused Nos.2 and 12 surrendered before the Magistrate. On 10.12.2007, they were taken into police custody and got recovered 2 axes on the same highway on 11.12.2007 in the presence of P.W.12, who is treated as hostile. Exs.P-11 and P-15 are the panchanamas. Only 5 axes were sent to R.F.S.L. Out of them, 3 axes alone contained traces of human blood. Ex.P-8 is the R.F.S.L. report. After completion of investigation and necessary formalities, P.W.15 Circle Inspector of Police filed charge sheet against the accused for the offences under Sections 147, 148, 302 read with 149 IPC. 9. When the charges were read over and explained to the accused, they pleaded not guilty and claim to be tried. 10. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 15 and got marked Exs.P-1 to P- 18, besides marking MOs.1 to 11 material objects. On behalf of the accused, none were examined and no documents were marked. 11. The learned Sessions Judge, after evaluating the evidence adduced by the prosecution, placing reliance on the evidence of P.Ws.1 to 4 convicted and sentenced the accused for the offences under Sections 148 and 302 read with 149 IPC, as stated above. Aggrieved by the same, the appellants-Accused Nos.1 to 12 have preferred the present criminal appeal. 12. Learned Senior Counsel Sri T.Bali Reddy appearing for the appellants-accused assails the judgment of the trial Court on the following grounds: (a) Admittedly, the incident occurred at 7-15 p.m., and Ex.P-1 complaint was lodged by P.W.1 at 8-30 p.m., itself. But the same has reached the Court next day morning i.e., on 12.10.2007 at 7-30 a.m. Thus, there is an inordinate delay in sending the FIR to the Court. (b) P.Ws.1 to 4, who claim to be the eye witnesses, are interested witnesses, being closely related to the deceased. (c) Though, it is an admitted case of the prosecution that huge crowd present at the place of occurrence witnessed the incident, no independent witness was examined by the prosecution. (d) The allegations levelled against all the accused are vague and bald in nature. (e) Admittedly, it is a faction ridden village and there is every possibility of implicating the innocent persons. Therefore, the learned Senior Counsel appearing for the appellants- accused sought to set aside the impugned judgment of the learned Sessions Judge. 13. On the other hand, the learned Public Prosecutor sought to sustain the impugned judgment of the learned Sessions Judge. 14. We have perused the entire record and also the evidence adduced by the prosecution before the trial Court. 15. The only question that falls for consideration in this appeal is whether the trial Court was justified in convicting and sentencing the accused for the offences under Sections 148 and 302 read with 149 IPC? 16. Admittedly, there is a delay in sending the FIR to the Court. The delay in lodging the FIR is always not fatal to the prosecution. But, at the same time, an unexplained and inordinate delay necessarily causes prejudice to the accused and there is every possibility of implicating the innocent persons after due deliberations and discussions by the witnesses concerned. In this case, we are of the view that the delay caused in sending the FIR to the Magistrate after completion of inquest suggests the possibility of implicating the innocent persons. 17. Further, P.Ws.1 to 4, who are said to be the eye witnesses, did not allege any specific overtacts against the accused. All the witnesses in one voice deposed before the Court that Accused No.1 caused injury on the leg of the deceased with axe, and all other accused caused injuries with axes. But, the further evidence adduced by the prosecution reveals 8 injuries and all the injuries were only on the part of the leg of the deceased. 18. In view of the above, as rightly pointed out by the learned Senior Counsel, the allegations levelled against the accused are bald in nature due to the fact that P.Ws.1 to 4, who are said to be the eye witnesses, are not the real eye witnesses, who are present at the scene of occurrence. 19. Admittedly, the entire occurrence took place in the presence of huge crowd and the evidence adduced by the prosecution also clearly reveals that the same was witnessed by number of persons. But, the investigating agency has not chosen to examine any independent eye witness in the Court, which clearly establishes that if the evidence of independent eye witness examined in the Court certainly would be against the evidence adduced by P.Ws.1 to 4. This Court is of the view that in such a grave crime, placing reliance on the alleged eye witnesses, like P.Ws.1 to 4, who are interested witnesses, and further when their evidence is also not specific in nature except informing the Court that all the accused caused injuries to the deceased, is unsafe to convict the accused for the offence under Section 302 IPC. 20. Therefore, the reasoning assigned by the learned Sessions Judge in convicting and sentencing the accused for the above offences is not merit acceptance and the prosecution has not proved its case beyond all reasonable doubt. Hence the conviction and sentence imposed by the learned Sessions Judge is liable to be set aside and the appellants-Accused Nos.1 to 12 are entitled for the benefit of doubt. 21. In the result, the criminal appeal is allowed, setting aside the impugned judgment, dated 09.02.2009, in Sessions Case No.211 of 2008, passed by the IX Additional Sessions Judge (Fast Track Court), Guntur, and the appellants-Accused Nos.1 to 12 are acquitted of the offences with which they were charged and they shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the appellants-Accused Nos.1 to 12 shall be refunded to them. ________________________ JUSTICE D.S.R.VARMA _________________________ JUSTICE RAJA ELANGO 22.04.2010. Msr THE HON'BLE SRI JUSTICE D.S.R.VARMA AND THE HON'BLE SRI JUSTICE RAJA ELANGO Criminal Appeal No.196 of 2009 22.04.2010 (Msr)