THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1627 of 2007 Dated : 18.07.2011 Between : The State of A.P. …. Appellant-State a n d S.Yerukala Krishna & others … Accused THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1627 of 2007 JUDGMENT: (per The Hon’ble Sri Justice A.Gopal Reddy) State preferred the present Criminal Appeal under Section 378 (3) & (1) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) challenging the judgment dated 16.02.2006 rendered in Sessions Case No.438 of 2004 by the I Additional District & Sessions Judge, Kurnool, whereby and whereunder the learned trial Judge acquitted the accused under Section 235 (1) Cr.P.C. for the offence punishable under Sections 148 and 302 read with 149 of Indian Penal Code (for short ‘IPC’) against A.1 to A.5 and under Section 109 read with 302 IPC against A.6. 2) The case of the Prosecution, in brief, is that on 23.07.2003 at about 1930 hours due to political and caste rivalry A.1 to A.5 at the instigation of A.6 formed themselves into an unlawful assembly, armed with yerukala sickles with a common object to attack and kill the de facto complainant and his brother Robert and in pursuance of their common object while said Robert was engaged in a discussion with his wife by sitting at a culvert situated near A.B.M. Church of Konetammapalli village, A.1 to A.5 went to him, surrounded him and while A.1 hacked on the face of said Robert with sickle, A.2 to A.5 hacked him indiscriminately all over the face and mouth and thereby caused severe bleeding injuries to his person. When the de facto complainant and other rushed to the scene, A.1 to A.5 fled away. 3) On receipt of complaint from the de facto complainant, Police registered a case in crime No.33/2003 for the offence punishable under Sections 147, 148, 302 and 109 read with 149 IPC, issued FIR. After completion of entire investigation, Police filed charge sheet against A.1 to A.6 for the offence punishable under Sections 148 and 302 read with 149 IPC against A.1 to A.5 and section 109 read with 302 IPC against A.6, which was numbered as P.R.C. No.10 of 2004 by the Judicial Magistrate of First Class, Nandikotkur. 4) On committal, the learned Sessions Judge examined the accused under Section 228 of the Code of Criminal Procedure and framed charges under Sections 148 and 302 read with 149 IPC against A.1 to A.5 and Sections 109 read with 302 IPC against A.6, in which, the accused denied the charges and claimed for trial. 5) In order to prove the guilt of the accused, Prosecution examined PWs 1 to 12 and marked Exs.P.1 to P.14 apart from marking MOs 1 to 6. After closure of Prosecution evidence, accused were examined under Section 313 Cr.P.C. in which they denied the incriminating evidence put to them available in the evidence of Prosecution witnesses. The accused did not choose to adduce any oral or documentary evidence on their behalf. After hearing the arguments on both sides and on appreciation of oral and documentary evidence, the learned Sessions Judge rendered the impugned judgment as stated above. 6) Heard the learned Public Prosecutor for the State and the learned counsel for the respondents. 7) PWs 1 to 3 and 5 to 8 turned hostile and did not support the prosecution case. PW.4 is the doctor who conducted post-mortem examination over the dead body of the deceased. P.W.9 is the mother of the deceased, who is projected by the Prosecution as an eye witness to the occurrence. Her evidence is that on the date of occurrence at 7.00 p.m. when the deceased and his wife i.e. P.W.1 were speaking with each other at Culvert near Church, A.1 to A.5 armed with hunting sickles went there and A.1 hacked the deceased indiscriminately on his face and head. Further A.2 to A.5 also hacked the deceased indiscriminately. She also deposed that A.1 to A.5 also thrown P.W.1 aside when she tried to intervene. But it is also her evidence that being afraid of the incident, she did not go to the scene. 8) In cross examination, P.W.9 admitted that A.6 did not come to the scene of incident and he was at his house only, but he brought the other accused in a jeep and paid money to them to kill the deceased. P.W.9 further stated that since 20 years prior to the occurrence, A.6 and his family members are residing in Kurnool. Her evidence in cross examination further goes to show that she stated against A.6 to the Police as she got suspicion against him as there is a political rivalry between him and the deceased. She also stated that a rowdy sheet has been opened against the deceased and P.W.7 at the instance of A.6, which itself shows that there is a rivalry between the family of the deceased and A.6. When A.6 is not residing in the village, his bringing the other accused to do away the life of the deceased is not believable. 9) Though P.W.7, the brother of the deceased, stated during cross-examination by APP that on 23.07.2003 at about 7.30 p.m. while the deceased and P.W.1 were sitting on a culvert near the church, A.1 to A.5 armed with hunting sickles hacked the deceased and thrown away P.W.1 when tried to intervene, but in cross examination by defence, he stated that one Nageswar Reddy, Sarpanch, instructed to draft the report as he belongs to Congress Party and the accused belongs to Telugu Desam Party. This part of evidence itself shows that the above case has been foisted against the accused. P.W.1 has categorically stated that except herself and the deceased, nobody were present, it was raining hard at the time of the incident, about 40 to 50 people covered themselves, dragged away the deceased and when she interfered she was thrown aside and the deceased was taken by them, by the time when she got up, she saw the dead body of the deceased near the culvert, which itself shows that P.W.1 has not specifically seen the incident. 10) Since there is no cogent evidence on record connecting the accused with the commission of crime as discussed above, the learned trial Judge has rightly acquitted the accused and there is no need to interfere with the present judgment of acquittal passed by the learned Sessions Judge. Therefore, the present appeal has to fail. 11) Accordingly, the Criminal Appeal is dismissed confirming the judgment dated 16.02.2006 passed in Sessions Case No.438 of 2004 by the I Additional District & Sessions Judge, Kurnool. ____________________ A.GOPAL REDDY, J __________________ RAJA ELANGO, J 18th July, 2011 sur