IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE K.G.SHANKAR CRIMINAL APPEAL No.672 of 2007 Between: State of A.P.rep.by the Public Prosecutor, High Court of A.P., Hyderabad .....APPELLANT/PETITIONER AND Palipini Apparao .....RESPONDENT/ACCUSED The Court made the following: THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL APPEAL No.672 of 2007 JUDGMENT: (per Hon’ble Sri Justice K.G.Shankar) The present appeal is filed against the judgment and order of acquittal of the sole accused for the offence punishable under Section 302 of the Indian Penal Code (“IPC” for short) passed by the learned VIII Additional District & Sessions Judge (Fast Track Court), Visakhapatnam in Sessions Case No.24/2003, dated 08.12.2003. 2. The case of the prosecution is that PW 6-the wife of the accused had illicit intimacy with the deceased-Appala Raju and that the accused wanted to take revenge against his wife as well as the deceased. It is the further case of the prosecution that the accused administered threats to the deceased on 16.08.2002 and that on the intervening night of 16/17.08.2002, the accused went to the house of PW 1 where the deceased who was the brother of PW 1 was sleeping along with PW 1 and administered fatal blows to the deceased. About 15 hours thereafter the deceased breathed his last. This is the gist of the prosecution case. 3. The basic evidence is the eyewitness account of PWs 1 to 3. PW 1 is one of the brothers of the deceased. PWs 2 and 3 are the parents of the deceased. I may refer to PW 6. PW 6 is the wife of the accused. The case of the prosecution is that it is PW 6 who had illicit intimacy with the deceased. Indeed, PW 6 denied her illicit intimacy with the deceased. 4. PWs 1 and 2 also do not directly speak about the intimacy between PW 6 and the deceased. They merely deposed that they have suspicion about the illicit intimacy between the deceased and PW 6. In the cross- examination PWs 2 and 3 and also PW 6 were very categorical in admitting that there was no illicit intimacy between the deceased and PW 6. Thus, the motive for the commission of the offence is ruled out. 5. However, whether motive is proved or otherwise, if there is direct evidence, the accused nevertheless can be convicted for the offence punishable under Sec.302 IPC. 6. It is only PWs 1 to 3 who are the direct witnesses for the incident proper. PWs 4 and 5 who heard about the attack on the deceased rushed to the scene of offence some time after the attack. It is nobody’s case that there is any eyewitness apart from PWs 1 to 3. 7. So far as PWs 1 to 3 are concerned, there is more than one curiosity. Their claim is that they heard the alarm of the deceased, woke up and found the accused running away after throwing M.O.1-iron rod with which he caused the injury. They did not state that they saw the accused hitting the deceased with the iron road. In a sense PWs 1 to 3 themselves are not direct witnesses as they woke up only on hearing the alarm of the deceased. 8. While so, the curiosity is that there are as many as 13 injuries upon the person of the deceased and most of them are on the scull of the deceased. In other words it would appear that the deceased was beaten not once, but a number of times by the culprit who caused injuries to the deceased. If the deceased had received injuries as alleged by PWs 1 to 3, the moment the deceased received the first injury, he would have raised alarm, and PWs 1 to 3 would have witnessed the subsequent attack. However, it is not so. After the culprit administered the blows, PWs 1 to 3 woke up and noticed the incident. 9. Thus, the medical evidence does not probablise the case of PWs 1 to 3 that PWs 1 to 3 woke up when the deceased was attacked by the accused. 10. As already pointed out, there are more than one reason to disbelieve the evidence of PWs 1 to 3. PW 1 and the deceased slept on the same cot on which the deceased was at the time of the attack on him. It was dead of night when the deceased was attacked. Nevertheless, PW 1 did not receive even a single injury, minor or major. It improbablise the case of PW 1. More curiosity is that PW 1 did not sustain even a bloodstain while the cot on which the deceased was at the time of the attack was drenched in blood. It shows great doubt as to whether PW 1 was on the same cot with the deceased when the deceased was attacked. 11. So far as PWs 2 and 3 are concerned, they are in great confusion as to where they were at the time of the attack. Their evidence is not consistent. At one stage, they state that they were sleeping in the verandah; at another stage, they deposed that they were sleeping inside the house. It is equally improbable for PWs 2 and 3 to witness the incident as much as PW 1 in view of the number of injuries upon the person of the deceased. It is highly improbable for PWs 2 and 3 to wake up on hearing the alleged alarm that the deceased had raised. 12. The learned trial Judge pointed out that there were no independent witnesses. It is not as though the deceased and PW 1 were in isolated house at the time of the incident. PW 1’s house was in a cluster of houses as can be seen from Ex.P13 rough sketch of the scene of offence. Other neighbours’ houses were nearby and around the scene of offence. Neighbours were also allegedly sleeping outside their houses. However, none of the neighbour came forward to speak about the incident. Consequently, the trial Court was correct in pointing out that there were no independent witnesses for the incident proper. 13. There is another infirmity regarding the very identification of the accused by PWs 1 to 3. PWs 1 to 3 claimed that there were street lamps while they deposed as witnesses. In their pre-trial statements to police, they did not speak that there were street lamps. Added to it, Ex.P13 rough sketch of the scene of offence did not show the existence of any street lamps. When the offence occurred at midnight, there must be some explanation as to how PWs 1 to 3 could identify the culprit. No explanation is forthcoming from the prosecution as to how PWs 1 to 3 could identify the accused. 14. There was delay in lodging the First Information Report (“FIR” for short) as well as in the FIR reaching the Court. While the incident occurred at about 12 midnight, the FIR was lodged as late as at 9.30 a.m. long after the deceased was admitted in the hospital. Further, while the FIR was lodged at 9.30 a.m. it reached the Court as late as at 5 p.m. In a grave offence like murder, this sort of delay in the FIR reaching the Court needs to be explained by the prosecution. The Investigating Officer and PW 16 who registered the FIR failed to explain the delay in submitting the FIR to the learned Additional Judicial First Class Magistrate, Anakapalle. 15. Thus, there are any amount of infirmities in the evidence of the eyewitnesses as well as in lodging the complaint with the police and the complaint reaching the Court. In such circumstances, we are afraid that it is not a fit case to reappraise the evidence to convict the accused. The prosecution thoroughly and completely failed in establishing the guilt of the accused, much less beyond all reasonable doubt. We therefore see no merits in this appeal. This Criminal Appeal is accordingly dismissed. ________________ V.ESWARAIAH,J ________________ K.G.SHANKAR,J Dated: 15.11.2010 Dsr