HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1228 OF 2002 DATE: 26.08.2010 BETWEEN: Pinidipolu Srinivas and another .. Appellants/A2 and A3 And State of A.P Rep.by Public Prosecutor .. Respondent HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1228 OF 2002 JUDGMENT: This criminal appeal is directed against the judgment dated 17.10.2002 passed by the Principal Sessions Judge, Nalgonda in S.C.No.509 of 2001. In all, three accused including the appellants were tried for the charge under Section 302 IPC read with Section 34 IPC by the trial court. The trial Court having acquitted the first accused in toto, convicted the appellants/A2 and A3 for the offence punishable under Section 326 IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- each. The said order of conviction and sentence is the subject matter of challenge in the present appeal. I have heard Sri Y.Subash, learned counsel appearing for the appellants and the learned public prosecutor representing the State. Few important facts necessary for considering the present appeal are these: On 02.07.2001 at about 9.00 A.M, PW.1-Mantripragada Narsimha Rao, V.A.O of Bethavola Village presented a report in Chilkur Police Station stating that on 01.07.2001 at about 10 PM the dead body of Rudra Venkateshwarlu, hereinafter called as ‘the deceased’, was brought from Suryapet to the house of the mother of the deceased at Bethavola. Basing on the said report the police considering the death to be under suspicious circumstances, registered a case in Crime No.42 of 2001 under Section 174 Cr.P.C. PW.22-Mohd.Mahboob Ali Khan, Inspector of Police, Suryapet Circle investigated into the offence and filed charge sheet against A1 to A3. In the course of trial before the Principal Sessions Judge, Nalgonda, the prosecution in order establish the guilt of the appellants and A1, examined PWs.1 to 22, got marked Exs.P.1 to P.23 and MOs 1 to 3. On consideration of the entire evidence on record, the learned Sessions Judge totally exonerated the first accused for the charge under Section 302 IPC, but convicted the appellants/A2 and A3 for the offence punishable under Section 326 IPC and sentenced them to punishment as mentioned above. According to the prosecution, the deceased was having a Soda shop at Suryapet. A1 is the wife of the deceased and A2 and A3 are the brothers of A1. The deceased was habituated to vices i.e. drinking and womanizing and because of that he used to quarrel with A1. PWs.2 and 3 are the daughters of the deceased, who were said to be living with the deceased and they are direct witnesses to the occurrence. The prosecution story is that as usual there was a quarrel between A1 and the deceased as he came in drunken condition to the house and thereafter, when A1 sprinkled chilly powder in the eyes of the deceased, A2 and A3 said to have beat the deceased with pestle and crowbar indiscriminately, which was witnessed by PWs. 2 to 8. Subsequently the deceased was laid on a cot with injuries and treatment was provided through PW.9-RMP doctor. Subsequently, the deceased however died on the evening of 01.07.2001. On the same day itself the deceased was shifted to his native place, but PW.1 lodged the report with the police on 02.07.2001. Although, as many as six eyewitnesses were examined, except PW.4 nobody supported the prosecution version. PWs.2 and 3, who are his daughters also did not support the prosecution story. PWs.2 and 3 only stated that the deceased was habituated to drinking and womanizing and used to quarrel with their mother-A1. PW.14 who is no other than the mother of the deceased is not a direct witness to the occurrence and did not state anything against the appellants and A1. The learned trial Court recorded conviction against the appellants under Section 326 IPC entirely basing on the evidence of PW.4 and the evidence of PW.19 autopsy surgeon. Now the point for determination in this appeal is whether the learned trial Court is justified in recording the conviction totally resting on the evidence of PW.4 and PW.19-autopsy surgeon? PW.-19, the autopsy surgeon stated in his evidence that he conducted autopsy over the body of the deceased on 02.07.2001 and found the following injuries: 1. Laceration 2” x 1” x 1” on lower 1/2rd of right leg. 2. Laceration 3” x 2” x 1” on lower 1/3rd of left leg. 3. Laceration 2” x 1” x ½” on fore head. 4. Fracture of 2 and 3rd ribs on right side. 5. Haemotoma 4” x 5” on right side chest. 6. Haemotoma on right lung whole. 7. Haemotoma whole liver He opined that the deceased died due to the cardio respiratory arrest due to multiple injuries on body and internal injuries. The death according to him might have been caused within 36 to 48 hours prior to the postmortem examination. Ex.P.14 is the postmortem report. The injuries are possible by blunt object like pestle and crowbar. The evidence of PW.4-Nukula Sanskrutha Reddy discloses that on 30.06.2001 at about 7.00 AM she heard some galata from the house of the deceased, then she went there, found A2 armed with pestle and A3 armed with a crowbar beating the deceased and A1 sprinkled chilli powder in the eyes of the deceased. She also stated that she found some injuries on the legs of the deceased and the deceased laying on the cot and was unable to get up. According to her after she entered the house of the deceased, the other persons also came there and all of them told the accused not to further attack the deceased. On that, A2 brought PW.9-RMP doctor and PW.9 advised the accused to take the deceased to a better hospital. This witness also stated in her evidence that in the evening she came to know that the deceased died. Though PW.4 claims to be the actual witness to the incident, her version can be trusted in the light of the facts and circumstances of the case. PW.4 stated in her evidence that she is a social worker and she is the President of Chaitanya Swachanda Seva Samstha. If that is so, in normal course, she has to report the incident to the police atleast even after knowing that the deceased has expired in the evening. But she did not inform the police about the incident. She admitted in her evidence that there was a dispute with regard to the house between her husband and his brothers. She denied the suggestion that appellants and A1 supported her husband’s brothers. Contending that PW.4 is not a credible witness and no reliance can be placed on her evidence, the learned counsel appearing for the appellants relied upon the following decisions. PEDDIREDDY SUBBAREDDI AND OTHERS v STATE OF A.P.[1] wherein it was held that when there is delay of 15 hours in lodging the first information report and the eyewitness after witnessing occurrence not reporting to any of the villagers, their testimony clouded with strong suspicion and false implication of the accused not completely ruled out. MANGAMMA AVVA ALIAS NESE YESODAMMA AND OTHERS v STATE OF A.P[2] wherein it was held as follows: “Silence of sole eye witness in narrating incident to others at earliest opportunity and inordinate delay in volunteering her statement is suspicious. It is highly improbable that eye witness who was maid servant of accused would be allowed to sleep near scene of occurrence when murder was alleged to be preplanned. Artificial version of eye witness at belated stage itself shows that she was fixed up witness. It is unsafe to rest conviction on her sole evidence.” If we examine facts of the present case, in the light of the judgments relied upon by the learned counsel referred above, it requires to be noticed that even though PW.4 witnessed the incident on the day when it occurred i.e. 01.06.2001 and came to know in the evening that the deceased succumbed to the injuries in which she witnessed in the morning, she did not tell anybody. She being a social worker did not report the matter to the police. The first information report which was registered on 02.07.2001 also under Section 174 Cr.P.C. treating the death of the deceased as the one occurred under suspicious circumstances. If really, PW.4 witnessed the incident, it would have come to light about the accused participating in commission of the offence somehow or the other and it must have found place in the FIR itself. The investigating officer examined all the witnesses, according to the prosecution, 06.07.2001. Till such time, according to the prosecution, PW.4 was also not examined by the police. On 06.07.2001 only, the FIR was altered by adding Section 302 IPC. The observation of scene of offence was conducted by the investigating officer on 06.07.2001 and recovery of the weapons from the place of offence viz. MO2-pestle and MO3-crow bar, was made on the said date but curiously on 12.07.2001 a theory was introduced basing on the confession of the accused that the said weapons were seized from the house of the deceased. The panch witnesses viz. PWs.15 to 18 did not support the theory of the recovery of weapons i.e. MOs.1 to 3. Another important factor, which requires consideration is that according to the version of PW.4, A1 sprinkled chilly powder into the eyes of the deceased, but the postmortem examination does not reveal the presence of chilly power on any part of the deceased. If that is so, it is highly difficult to believe that PW.4 actually witnessed the incident. The learned trial Court basing on the same evidence acquitted A1 considering the fact that postmortem report does not support the version of PW.4 as to the participation of A1 but erroneously convicted the appellants i.e. A2 and A3 basing on the very same evidence of PW.4. Even if we believe for the argument sake that the appellants were present in the house of the deceased at relevant time, it is not possible to conclude that they caused injuries to the deceased because even PWs.2 and 3 who were the daughters of the deceased are not supporting the said theory. In my considered view, it is quite unsafe to record the conviction basing on the sole testimony of PW.4 which was erroneously done by the learned trial Court, and therefore, the conviction and sentence passed against the appellants are liable to be set aside in the present appeal. For the aforesaid reasons, the conviction and sentence passed against the appellants/A2 and A3 by the trial Court are set aside and the appellants are acquitted of the offence punishable under Section 326 IPC. The fine amount, if any, paid by the appellants shall be refunded to them. The appeal succeeds and is therefore, allowed. _______________ R.KANTHA RAO,J Date: 26.08.2010 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO CRL.A.NO.1228 OF 2002 DATE: 26.08.2010 [1] Air 1991 SC 1356 [2] 1995CRL.L.J2921