THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.340 of 2007 Date of Judgment: 26-07-2010 Between Manupati Venkata Kotaiah ..Appellant and The State of A.P. rep. By Public Prosecutor ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.No.340 of 2007 Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) 1. The appellant/sole accused, who tried and convicted for the offences under Sections 302 and 324 IPC by the X Additional Sessions Judge (Fast Track Court), Guntur at Narasaraopet and sentenced to imprisonment for life and rigorous imprisonment for two years and fine on two counts respectively by judgment dated 25-01-2007 in S.C.No.668 of 2005, filed this appeal challenging the conviction and sentence recorded against him. 2. The gravaman of the charge against the accused is that on 04-07-2005 at about 10.30 P.M., he committed the murder of Polisetty Koteswara Rao (hereinafter referred to as “the deceased”) in Rentachintala Village, Guntur District, thereby committed the offence punishable under Section 302 IPC and he also attempted to commit murder of Upputholla Babu Rao, thereby committed an offence punishable under Section 307 IPC. 3. The prosecution story, which led to the conviction of the accused, is as under: The accused was working as Home Guard in Gurajala Police Station and residing at Rentachintala. On 04-07-2005 at about 11 P.M., while he was returning to home in a trolley auto from Gurajala, he noticed one Babu Rao and Koteswara Rao (hereinafter referred to as “the deceased”) sitting near the sundry shop of one Sattaiah, where liquor was also served. When the accused questioned them as to why they were sitting there at that time and asked to go over to Police Station, an altercation took place between them. After that, the accused went away in the same trolley auto and returned after 15 minutes along with his mother. At that time, he was armed with an iron pipe. After seeing Babu Rao and the deceased, the mother of the deceased stated that they were good persons. However, the accused beat them indiscriminately causing injuries and left the place. Meanwhile, the relatives of the deceased came and took him to the hospital, where the doctors declared him as dead. On the next day, i.e. on 05-07-22005, Babu Rao went to the police station and gave a report—Ex.P1 to the Head Constable—P.W.10. Basing on the same, P.W.10 registered a case in Cr.No.66/2005 and issued Ex.P10—FIR to all the concerned. On receipt of FIR, the Inspector of Police—P.W.12 visited the scene of offence; prepared the scene of observation report covered under Ex.P15 in the presence of P.Ws.9 and 11; he also prepared rough sketch—Ex.P10; held inquest over the dead body of the deceased, Ex.P7 is the inquest report. During the inquest, he examined Babu Rao and P.Ws.1 to 5 and sent the dead body of the deceased for post mortem examination. The Woman Assistant Surgeon working in Government Hospital, Gurajala—P.W.8 examined Babu Rao, noticed three injuries and opined that they are simple in nature. She conducted autopsy over the dead body of the deceased and noticed nine injuries on the body. According to her, the death was due to shock and haemorrhage on account of head injury. On 12-07-2005, P.W.12 arrested the accused and recovered iron pipe—M.O.1 in the presence of P.Ws.9 and 11 under a cover of panchanama—Ex.P17. On 09-09-2005, the statement of Babu Rao was recorded by the Magistrate, Gurajala—P.W.13 covered under Ex.P30. 4. After completion of investigation, P.W.14, the successor of P.W.12, filed the charge sheet before the II Additional Munsif Magistrate, Gurazala. The learned Magistrate took the charge sheet on file as P.R.C.No.58 of 2005 and committed the case to the Sessions Division of Guntur District, since the offence is exclusively triable by the Court of Sessions. The learned Sessions Judge took the case on file as S.C.No.668 of 2005 and made over to the X Additional District and Sessions Judge (FTC), Narasaraopet for disposal according to law. The learned Sessions Judge on hearing the prosecution as well as the accused, framed two charges for the offences punishable under Sections 302 and 307 IPC, read over and explained to the accused in Telugu for which the accused pleaded not guilty claimed to be tried. 5. In support of its case, the prosecution examined P.Ws.1 to 14 and marked Exs.P1 to P32 besides case properties—M.Os.1 to 6. 6. When the appellant examined under Section 313 Cr.P.C. against the incriminating evidence, he reported no defence, but marked Ex.D1—portion of 161 Cr.P.C. statement of P.W.4. 7. The learned Sessions Judge by the impugned judgment, accepting the evidence of the prosecution, found the accused guilty for the offences punishable under Sections 302 and 324 IPC and accordingly sentenced him to imprisonment as aforementioned. 8. Sri T.Bali Reddy, learned senior counsel appearing for the appellant strenuously contended that the evidence of P.W.5 excludes the presence of P.Ws.1 to 4; therefore, no implicit reliance can be placed on the evidence of P.Ws.1 to 4, as they are related to the deceased. Out of whom, P.Ws.1 and 4 are sons, P.W.3 is the wife of the deceased, whereas P.W.2 who is the cousin of Babu Rao. The delay in lodging FIR has not been explained by the prosecution properly. P.W.8, who examined and recorded the statement of Babu Rao about receiving injuries at 11 P.M. alleged to be beaten by unknown persons by iron rod also testify that Babu Rao stated to her about receiving injuries. Section 164 Cr.P.C. statement recorded by the Magistrate covered under Ex.P30 cannot be taken as evidence. The prosecution after due deliberation, set up P.Ws.1 to 4 as eyewitnesses and it is unsafe to convict on the testimony of interested witnesses. Therefore, the conviction and sentence recorded against the accused is not sustainable. 9. On the other hand, learned Public Prosecutor would contend that merely because P.Ws.1 to 4 are related to the deceased and Babu Rao, their evidence cannot be discarded which clearly discloses how the incident has happened. The statement of Babu Rao under Ex.P30 is corroborated with the contents of Ex.P1; therefore, it can be used for corroboration or contradiction. The evidence of P.Ws.1 to 4, who are natural eyewitnesses, can be form basis for conviction, which has been corroborated with the medical evidence about the injuries sustained by the deceased. 10. In the light of the above submissions, the only point that arises for consideration in this appeal is: “Whether the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and the conviction and sentence recorded against the appellant is liable to set aside or modified?” 11. Babu Rao, who received the injuries, lodged a complaint but not available at the trial, as he committed suicide after filing the charge sheet. 12. The complaint allegations show that on the information given by his paternal uncle—Upputholla Srinivasa Rao that there is work available for them, Babu Rao came to Rentachintala for the work of polishing the slabs. Himself, his paternal uncle—Upputholla Srinivasa Rao, Polisetty Koteswara Rao (deceased) and his two sons— Nagaraju (P.W.1) and Prasad (P.W.4), his paternal uncle’s son— Pratap Kumar (P.W.2) and some others together formed into a troop and laying polish slabs. On 04-07-2005, during the night at 11.00 P.M., himself and the deceased were chatting by sitting at the shop of Yerukala Sattaiah situated in front of the newly construed church. Meanwhile, a trolley auto came and stopped in front of them. The accused get down from the said auto and asked them as “who are they” and “why they sat at that time”. For which they answered, “they are talking about the work which they have to do on the next day”. Then, he cried loudly asking them to come to the police station. For which, they asked, “what wrong they have committed for what reason they have to come to police station”. Then, he cried loudly and compelled them to come to police station. In the meanwhile, P.Ws.1 and 2 came there and asked the accused why they should come to the police station. Then the accused went away in the same auto and returned after minutes along with his mother armed with iron rod. On seeing them the mother of the accused stated that they are known and good persons. Without hearing her words, the accused beat Babu Rao on the left eye and behind the head forcibly. He also beat the deceased. In the meanwhile, P.Ws.1 and 2 tried to catch hold the accused, but he fled away with the rod. 13. P.W.1, who is said to be an eyewitness to the incident, corroborated about their coming to Rentachintala in search of work and assisting his deceased father in fixing napa stones. He deposed that on 04-07-2005 at 11 P.M., Babu Rao and the deceased were talking while sitting at Yerukula Sattaiah (not examined), the accused came in a trolley auto and asked Babu Rao and the deceased to accompany with him to Rentachintala P.S. On hearing the cries, himself and P.W.2 went there and asked as to why they should attend the police station, what is the offence committed by them. Then, the accused went away in the same auto stating that he will see their end afterwards. Within 15 minutes the accused holding an iron pipe along with his mother visited the place; after seeing them, his mother informed the accused that they are living in the same locality cordially and questioned why he is unnecessarily quarrelling. Without hearing her words, the accused beat Babu Rao on the left eyebrow with the iron rod. Babu Rao sustained bleeding injury; accused also beat on his head. When his father (deceased) interfered, the accused beat him also with the same rod on the left eyebrow and also on the head. When his father fell unconscious with bleeding injuries, himself and P.W.2 tried to catch the accused but he escaped. Then, himself, P.W.2 and Babu Rao took the deceased in a rickshaw to a private hospital belonging to Dr. Harsha, where the doctors declared him as dead. He went to the police station along with Babu Rao, where Babu Rao submitted a report. Babu Rao committed suicide two months back. He stated in the cross-examination that his deceased father is an accused in a murder case and some other criminal cases. The Village Administrative Officer of Rentachintala drafted Ex.P1—report. Harsha hospital is near to the bus stand of Rentachintala. He has not submitted any police report in this case so also any body from their family. M.O.1 is a water pipe, which is available in every house. 14. P.W.2 stated himself, P.W.1, Babu Rao, deceased and his father—Srinivasa Rao were talking about next day’s work in front of shop of Sattaiah on 04-07-2005; then the accused suspected that they have consumed liquor and asked them to come to police station. Then they asked why should they attend to police station when there is no wrong on their part, then the accused went away saying that he will return in short time; later the accused came along with his mother and beat Babu Rao with M.O.1—rod on his head. The accused also beat the deceased on the forehead and back of his head with M.O.1—rod. When they tried to catch, the accused fled away from the scene along with the weapon—M.O.1. Then they took the deceased to a private hospital in Rentachintala where the doctors declared him as dead. He admitted in the cross-examination that he has not gone to the police station immediately after the offence took place and not given any report, Babu Rao gave a report. Babu Rao was sitting with the support of a pial, which is near the scene, after receipt of the injuries. Babu Rao has bleeding on his body. He has not stated to the police that the accused was going away by twisting M.O.1—rod with his hand. 15. P.W.3 stated that when she heard cries at 11 P.M., she went to near the shop of Sattaiah and then she saw the accused beating her husband (deceased) with an iron rod like pipe on his left eyebrow and the accused also beat Babu Rao. The deceased was also beaten on the back of his head and also other parts of the body indiscriminately. When their people tried to catch, the accused went away. They took the deceased to the hospital of Dr.Harsha, where the doctors declared him as dead. She admitted that there are houses around the house of Sattaiah. Police examined her on the next day 11 or 12 hours. She also stated that all her relatives gave police report. 16. P.W.4 another son of the deceased stated that on 04-07- 2005 at 11 P.M., they heard some cries from the shop of Sattaiah; then himself, P.W.3—his mother came out to the shop and after enquiring P.Ws.1 and 2, the accused came there along with his mother; where the mother of the accused suggested not to quarrel with them, as they are known persons; then the accused beat Babu Rao on his right eye brow with M.O.1—rod, when they tried to catch, the accused escaped from the scene along with M.O.1. He admitted that the deceased is an accused in a murder case, which resulted out of family disputes. On the next day morning he submitted a report; volunteered he accompanied Babu Rao, who gave the report. Babu Rao slept in the house after receipt of injuries without taking any treatment. He admitted that he has not stated before the police about the presence of Srinivasa Rao on 04-07-2005 at 11 PM, as he has not present. 17. P.W.5 deposed that at 11 P.M., the deceased and Babu Rao were talking with each other on the road near the Church, which is near to the shop of Sattaiah; then the accused came there and questioned them as who are they and what are doing there. He came to know about the same, while he was in the house. After some time, he heard galata and rushed to the scene, where he was informed by Babu Rao that the accused beat the deceased on his head with an iron rod and Babu Rao also sustained injuries but able to talk; then they took the deceased to the hospital of Dr.Srihari, where he was pronounced as dead. He admitted in the cross-examination by the time he reaches the scene, the deceased was lying on the ground and Babu Rao was sitting. P.Ws.1 to 4 and himself together went to the scene of offence. 18. P.Ws.6 and 7 have not supported the case of the prosecution and declared hospital. Whereas P.W.8, who examined Babu Rao on 05-07-22005 at 12.10 P.M., found the following injuries: 1. A lacerated wound of 6 c.m. x 0.5 c.m. left side of forehead with ragged hedges just above the left eye with fresh bleeding. 2. A lacerated wound of 2 c.m. x 0.5 c.m. left side of upper part of the forehead nearly hair line. 3. Swelling on the upper eye lid present with congestion of left eye. She has stated that injuries 1 and 2 are simple in nature and caused by any blunt object. She examined Babu Rao at 0.10 hours, but by mistake it was mentioned as 12.10 P.M. in Ex.P4—wound certificate. She also conducted postmortem examination of the deceased and found the following injuries on the body of the deceased: External injures: 1. A lacerated wound of 4 c.m. x 1. c.m. with skin deep seen on the left side of forehead just above the left eye. 2. A contusion of 3 c.m. x 0.5 c.m. on left eye brow. 3. A lacerated wound of 6 c.m. x 2 c.m. on right side of back of scald with fracture of occipital area of skull 6.5. c.m. medial to right ear. 4. A lacerated wound of 4 c.m. x 1 c.m. x 3 c.m. deep with occipital bone fracture on the right side of scald 4 c.m. below the wound No.3. 5. A contusion of 2.5 c.m x c.m. seen on the left check. 6. A contusion of 4 c.m. x 2 c.m. scene on the left shoulder. 7. Two contusions of 3 c.m. x 0.5 c.m. seen on right cheek 3 c.m. apart. 8. A contusion of 6 c.m. x 2 c.m. seen on right shoulder. 9. A contusion of 4 c.m. x 0.5 c.m. seen on right side of neck just below the right ear. Internal injuries: Fracture skull present brain meninges congested and all other internal organs congested. The approximate time of death is 14 to 16 hours prior to her examination and opined that the cause of death is due to shock and hemorrhage due to head injury. Ex.P5 is the post mortem certificate. She admitted in the cross-examination that Babu Rao stated to her that he was beaten by unknown persons and the same was mentioned in Ex.P4 when she examined Babu Rao on 05-07-2005 at 12.10 P.M. 19. P.W.9 who is an inquest panch under Ex.P7 declared hostile and he is also a witness to Ex.P8—mediator’s report. He has not supported the seizure of weapon in his presence, but his signature was obtained on white paper. 20. P.W.10, who is the Head Constable of Rentachintala Police Station at the relevant point of time, deposed that on 05-07-2005 at 7 A.M. one Babu Rao came to the police station with injuries and gave Ex.P1—report. He registered a case in Cr.No.66 of 2005 and issued Ex.P10—FIR and submitted the same to the Court along with Ex.P1—report and sent injured Babu Rao to the Government Hospital, Gurazala and handed over the subsequent investigation to the Inspector of Police—P.W.12. He admitted that it takes half an hour for covering the distance between Rentachintala and the Court of Judicial Magistrate of First Class, Gurazala. He also admitted that on the advice of Wadderapalem people, Ex.P1 was prepared and the said fact was mentioned in Ex.P1. Gurazala police station is one furlong from the bus stand. 21. P.W.11 who is an eyewitness to the seizure of the weapon has not supported the case of the prosecution and he was declared hostile. 22. P.W.12, Inspector of Police, who took up investigation, deposed that on receipt of carbon coy of Ex.P10—FIR, he visited the scene of offence along with P.Ws.9 and 11, investigated the scene, prepared the scene of observation report—Ex.P15, seized blood stained tar earth—M.O.5, controlled earth—M.O.6 in the presence of mediators covered under Ex.P15; secured the presence of panchayatdars—P.Ws.9 and 11 and D.Sivaiah and also blood relatives of the deceased; held inquest over the dead body of the deceased covered under Ex.P7 from 10 A.M. to 1 P.M. During the inquest, he examined Babu Rao (L.W.1) P.Ws.1 to 5 and recorded their statements and also gave a requisition to the hospital through P.W.10 to know the actual cause of death of the deceased. He secured the presence of P.Ws.6 & 7 and recorded their statements. On reliable information on 12-07-2005, after securing the presence of mediators— P.Ws.9 and 11 reached Nadikudi Railway Station and arrested the accused at 3 P.M. and on accused making confession covered under Ex.P16, they led to the house of the accused in Rentachintala village, recovered the iron pipe from the heap of jammu and on examination he found blood stains on the iron pipe. He stated in the cross-examination by the time of registering the present case, the accused is working as Home Guard attached to Gurazala Police Station within his circle. While he was in Rentachintala Police Station, he received information that the accused was in Nadikudi Railway Station Plat Form No.1, which is busy plat form. The dates of examination of P.Ws.1 to 5 were not mentioned on their statements. 23. P.W.1 did not state to him that on 04-07-2005 at 11 P.M., Babu Rao and the deceased were talking by sitting at the shop of Sattaiah; P.W.1 did not state to him that he returned to the scene along with his mother—P.W.3; P.W.1 did not state that he could not get any idea about the action to be taken against the accused, as he was Home Guard; P.W.1 has not stated to him whether he was present by the side of Babu Rao when the report is submitted by Babu Rao. P.W.2 has not stated that the accused suspected the persons sitting at the shop of Sattaiah as they have consumed liquor and abused them and returned after 15 minutes and that the accused went away twisting his hand with iron rod and beat on the forehead of the deceased. P.W.3 has not stated to him that he came out of the house after hearing the cries and went to the shop of Sattaiah; she has not mentioned the other parts of the body on which the accused beat other than the head of the deceased. Similarly, P.W.4 did not state before him that he heard cries from the shop of Sattaiah but stated as in Ex.D1; P.W.4 did not state that accused beat Babu Rao on his right eyebrow with an iron rod like M.O.1 and also did not state that the accused beat the deceased on the back of his head. P.W.5 has not stated that he heard galata after 15 minutes and rushed to the spot. 24. P.W.13, who recorded 164 Cr.P.C. statements of Upputholla Babu Rao, who died later, admitted that in Ex.P30 statement it is mentioned while the deceased was sitting on the stone bench in front of Church at Rentachintala at about 11 P.M. on 04-07-2005 the incident occurred. Babu Rao has not stated the name of his friend, who received injuries along with him. 25. In Ex.P30, 164 Cr.P.C. statement, Babu Rao has stated that after the accused came along with his mother and while she was talking with them, the accused started to beat him and also his friend with iron rod. On hearing the cries, his relatives came there and tried to catch the Home Guard (accused) but failed. He along with two others took Koteswara Rao (deceased), who was in unconscious stage, to the Harsha Hospital, Rentachintala. In the hospital he stated total information about the offence, which was committed by the Home Guard (accused) to the Sub-Inspector or Police, Rentachintala. After discharge from the hospital, he went to the police station and explained the incident to the Inspector of Police and went home. 26. From the above narrative evidence, it is clear that P.W.5, who is not an eyewitness and who is a hearsay witness, stated that Babu Rao informed that accused beat the deceased with a rod on forehead and he (Babu Rao) also sustained injuries; then they took the deceased to the hospital. He admitted that by the time himself and P.W.3 reached the scene, the deceased was lying on the ground and Babu Rao was sitting; P.Ws.1 to 4 and himself together went to the scene of offence. 27. In the light of the above, we have to closely scrutinize the evidence of P.Ws.1 and 4, sons of the deceased, P.W.3, wife of the deceased and P.W.2, cousin of Babu Rao. 28. When Babu Rao received injury, he has not lodged any report to the police on the same day. Even according to the prosecution, Ex.P1—report was lodged on 05-07-2005 at 7 A.M. P.Ws.1 and 4, who are sons of the deceased, stated that the accused beat on the face of Babu Rao above the left eyebrow with the rod, when the deceased interfered, the accused beat him also with the same rod on his face on the left eyebrow and also on the head, which fact has not been stated by Babu Rao in Ex.P30; Babu Rao only stated that the accused beat him and his friend but not revealed the name of the deceased and also accused beating him with iron