HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO.1849 OF 2007 Dated:02-11-2011 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Shaik Moulali & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE R. KANTHA RAO CRIMINAL APPEAL NO.1849 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State, represented by Public Prosecutor, preferred this appeal questioning the acquittal order, dated 22.08.2005 passed in S.C.No.374 of 2004 on the file of Principal Sessions Judge, Kurnool acquitting the respondents-accused 1 to 4 of the charges punishable under Section 302 IPC against A.1 to A.3 and 302 read with Section 34 IPC against A.1 to A.4. 2. The story of the prosecution as narrated during the course of trial is as under: Ghanta Rajesh (herein after referred to as ‘deceased’) and all the accused are residents of Khadakpura Street, Kurnool Town. All the accused are related to each other. On 6.4.2004, at about 11.00 p.m., the deceased went to the house of Noor Ahmed-P.W.6, who happened to be a neighbour of the accused and the deceased demanded P.W.6 to repay loan amount of Rs.3,000/- advanced by his father-P.W.7. P.W.6 did not pay the amount to the deceased, for which, the deceased picked up a quarrel with P.W.6, his wife and daughter. Then Shaik Khatoon Bi-P.W.4, neighbour of P.W.6 intervened and warned the deceased for his highhandedness. On that deceased retorted and stabbed P.W.4 with a knife and caused injuries to her. On seeing that, A.1, who happened to be the son of P.W.4 and the remaining accused, who were present there, grew wild and having developed common intention to do away the life of the deceased attacked the deceased. A.1 stabbed with a knife on the stomach, on the chest and on back of the deceased while A.2 and A.3 caught hold of deceased, as a result of which, intestines of the deceased protruded outside. The de facto complainant-P.W.5-brother of the deceased went to the house of P.W.6 as the deceased did not return and witnessed the occurrence. On receipt of information, P.W.1-Head Constable, III Town Kurnool Police Station came to the scene of offence and saw the deceased, P.Ws.5 and 6 at the scene of offence. The incident was also witnessed by P.Ws.2 to 4. Thereafter, P.W.5 went to I Town Police Station and presented Ex.P.4-complaint to P.W.12-Inspector of Police at 4.10 a.m., on early hours of 7.4.2004, on the basis of which, P.W.12 registered a case and issued FIR, visited the scene of offence, conducted scene of offence observation panchanama, held inquest over the dead body of the deceased, seized the material objects and sent the dead body of the deceased for post-mortem examination. P.W.11-doctor conducted post-mortem examination over the dead body of the deceased and issued Ex.P.10-post-mortem report and opined that the cause of death of the deceased was due to evisceration caused by multiple stab injuries. The accused were arrested on 27.5.2004 by the investigating officer-P.W.12. After completion of investigation and on receipt of relevant reports, P.W.12 laid the charge sheet against the accused. On committal, the learned Sessions Judge framed the charges, read over and explained to the accused in Telugu and the accused denied the charges and claimed to be tried. 3. To substantiate the case of the prosecution, P.Ws.1 to 12 were examined and Exs.P.1 to P.15 were marked besides material objects 1 to 4. On behalf of defence, no oral or documentary evidence was accused. 4. The learned Sessions Judge after evaluating the oral and documentary evidence found that there is a delay in lodging the report and sending the FIR to the Court and that the timings were adjusted to suit the prosecution version and that it is not safe to rely upon the evidence of P.W.1-Head Constable and P.Ws.5 and 6-alleged eyewitnesses to the incident and that the presence of P.Ws.5 and 6 at the scene of offence at the relevant point of time is doubtful and that they appear to have been planted, and that the prosecution miserably failed to bring home the guilt of the accused beyond all reasonable doubt and therefore, all the accused are entitled to acquittal by extending benefit of doubt, and accordingly, acquitted all the accused of the charges with which they were charged. 5. Learned Additional Public Prosecutor contends that the evidence of eyewitnesses-P.Ws.5 and 6 is cogent and convincing about their presence at the time of occurrence, which is also corroborated with the evidence of P.W.7, who sent P.W.5 to the house of P.W.6 in search of the deceased. Further the presence of P.Ws.5 and 6 at the scene of offence at the relevant point of time is also supported with the evidence of P.W.1-Head Constable who visited the scene of offence immediately after the incident and with the help of P.Ws.5 and 6, he shifted the deceased to the hospital. Therefore, the learned Sessions Judge ought not to have disbelieved the evidence of P.Ws.5 and 6 and ought not to have acquitted the accused by extending the benefit of doubt. 6. On the other hand, Sri C.Padmanabha Reddy, learned senior counsel appearing for the accused-respondents sought to sustain the impugned judgment contending that both the alleged eyewitnesses- P.Ws.5 and 6 are planted witnesses, that when P.W.1 reached the scene of offence, he found 10 to 15 other persons, which fact has not been deposed by P.W.6 in his evidence. The evidence of P.W.6 shows that the accused pushed him unto the ground and in the process he received injuries, but the prosecution miserably failed to establish the injuries received by P.W.6 nor he was sent to the hospital nor any medical evidence has been produced to substantiate the said fact. In view of the discrepancies in the evidence of P.Ws.5 and 6, the learned Sessions Judge rightly recorded a finding that P.Ws.5 and 6 are planted witnesses and therefore, the impugned judgment needs no interference by this Court. 7. The Supreme Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415] observed that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further in dealing with the appeal against the order of acquittal, it must be shown by the prosecution that there are compelling and substantial reasons to interfere with the same. Therefore, now it is to be seen whether there are any compelling and substantial reasons to interfere with the acquittal order passed by the lower Court. 8. To prove the guilt of the accused, prosecution examined as many as 12 witnesses and out of them, P.Ws.2,3,4,9 and 10 have not supported the case of the prosecution and they were declared hostile by the prosecution. There remains the evidence of P.Ws.1-Head Constable, P.Ws.5 and 6, alleged eyewitnesses to the incident and the investigation officer-P.W.12. P.W.5 is the brother of the deceased and P.W.6 is the person who borrowed a sum of Rs.6,000/- from P.W.7, the father of the deceased. P.W.8 is the mediator to the inquest report and P.W.11 is the doctor, who conducted post-mortem examination over the dead body of the deceased. P.W.1 deposed that at about 12.30 midnight on 6.4.2004 he received information from the control room, Kurnool stating that there was a galata at Khadapura, and immediately he left the office along with his staff to the said place. When he reached the house of P.W.6, he found the deceased struggling for life having received injuries and his intestines protruded outside. He also found P.W.5 and P.W.6 at the scene of offence. He found some injuries on P.W.6. Immediately he took the deceased and P.W.5 to the Government General Hospital, Kurnool and got the deceased admitted there at 2.00 a.m. He did not examine anybody in connection with the incident. He admitted in the cross-examination that he did not see P.W.5 and P.W.6 before the said incident and that he did not find any other local people in that locality at the said point of time. Whereas, P.W.5, the alleged eyewitness to the incident and brother of the deceased, deposed that on 6.4.2004 at about 11.30 p.m. the deceased left for the house of P.W.6 to demand him to repay the balance amount of Rs.3,000/-. At about 12.00 midnight as the deceased could not return after sufficient time, he went to Khadakpura, where he found 10 to 15 persons near the house of P.W.6. He found A.3 and A.2 catching hold of deceased and A.1 stabbing on the left of the stomach of deceased. On seeing the incident, he ran towards the scene of offence in order to save the deceased, but he was caught hold of by A.4. The deceased got himself removed from the clutches of accused and while he was running away, A.1 to A.3 chased the deceased and again A.1 stabbed on the stomach, chest and back of the deceased while A.2 and A.3 caught hold of the deceased. Meanwhile, police came to the spot and on seeing them, all the accused ran away from the scene of offence. Due to the injuries, the intestines of the deceased protruded outside. Police, himself and P.W.6 shifted the deceased into the police jeep. The deceased was taken to Government General Hospital, Kurnool at about 1.30 a.m. on 7.4.2004 and the deceased succumbed to the injuries at about 2.00 a.m. on the same day. At about 3.00 a.m. on the same day, he gave Ex.P.4 report to the police in the hospital itself and he himself wrote the report. In his report, the presence of P.W.6 is not noted. 8. P.W.6 deposed that on 6.4.2004 at about 11.00 p.m. deceased came to his house and demanded to pay the amount of Rs.3,000/- due to his father. He replied that he was not having the amount immediately and that he would talk to his parents later on. But the deceased insisted upon payment of amount and he made a galata at the house. Then he took the deceased outside the house. The deceased was in a drunken state and he was abusing P.W.6 for not paying the amount. A.1, Khatoon Bee-P.W.4 and A.3, who reside opposite to his house were present in front of his house. P.W.4 came and questioned the deceased as to why he was coming to the area in drunken condition and making galata and disturbing the neighbours during night times and she also abused the deceased in filthy language. Then the deceased picked up a small knife and threatened P.W.4 with dire consequences in mocking way, but unfortunately it caused injury on her left forearm. Then she raised cries stating that the deceased stabbed her. On hearing her cries, A.2, who resides in the first floor of the same building and A.4, who resides by the side of the house of the accused 1 and 3 came to the spot and enquired as to what was happened and when he (P.W.6) tried to convince them, they did not hear him. At that time P.W.1 and P.W.5 came to the spot. Then A.2 and A.3 caught hold of the deceased tightly and A.1 stabbed with a knife on the right side of the stomach of deceased. Then the deceased tried and moved forward to escape from the clutches of A.1 and A.3 and the deceased covered a distance of 10 feet escaping from their clutches. Again A.2 and A.3 caught hold of the deceased and A.1 again stabbed with a knife on the chest and back of the deceased. Before stabbing the deceased, A.4 pushed P.W.6 on the ground saying that he too responsible for the situation and in the process, he fell down and received injuries on his right knee. The deceased fell down having received injuries and all the accused ran away from the spot. Then the police came there in a jeep. Then himself and others shifted the body of the deceased into the jeep and admitted in the Government General Hospital, Kurnool for treatment. In the cross- examination, he admitted that he did not state to the police that when himself and deceased came out of the house, A.1, A.3 and P.W.4 were found in front of his house. He did not state to the police that P.W.4 abused the deceased in filthy language. He did not state to the police that the deceased picked out a knife and threatened P.W.4 with dire consequences in a mocking way. He did not state to the police that when the deceased caused injury to P.W.4, all the accused, who were residing in the up-stair portion of the building, came to the spot on hearing the cries of P.W.4. P.W.7, father of the deceased speaks about lending money to P.W.6 and he is not an eyewitness to the occurrence. P.W.11, doctor who conducted post-mortem examination, found as many as four stab injuries and two abrasions as mentioned in Ex.P.10-post-mortem report. According to him, the cause of death was due to shock due to evisceration caused by multiple stab injuries. 9. P.W.12-Investigating officer deposed that on receipt of information about the incident, he rushed to the Government Hospital, Kurnool, secured the presence of P.W.5 and basing on his report, he registered the case under Section 302 read with 34 IPC, took up investigation, recorded the statements of witnesses, proceeded to the scene of offence, seized the bloodstained earth, control earth under a cover of panchanama, prepared rough sketch of scene of offence under Ex.P.12, examined P.Ws.2,3 and 4 and recorded their statements. He conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination. He issued Ex.P.11-F.I.R., wherein time of dispatching was not mentioned under column No.15. He met the de facto complainant-P.W.5 in the hospital at about 4.00 or 4.10 a.m. on 7.4.2004 and after obtaining his report on a white paper, he went to Police Station and registered the case. In the cross-examination he admitted that P.W.5 did not state to him specifically that he had acquaintance with the accused prior to the incident. P.W.6 did not state to him that when himself and deceased came out of the house, A.1, A.3 and P.W.4 were found in front of their house. P.W.6 did not state to him that deceased picked up a small knife. P.W.6 also did not state to him that ‘P.W.4 abused the deceased in filthy language, deceased picked up a small knife, threatened P.W.4 with dire consequences in a mocking way, and before stabbing the deceased, A.4 pushed him on the ground saying that he was responsible for the situation as a result of which, he fell down and received injuries on his right knee’. P.W.7 did not state to him that his wife sent the deceased to collect Rs.3,000/- from P.W.6. 10. From the evidence as extracted above, the prosecution could only establish that the deceased met with homicidal death. But it failed to establish that it is none other than the accused, who caused the death of the deceased. P.W.1 in his chief-examination stated that he found P.Ws.5 and 6 at the scene of offence when he went there and he took the injured (deceased) and P.W.5 to the hospital. But in Ex.P.4-complaint, what is narrated by P.W.5 is that when he reached the scene of offence, he found P.W.6 and ten to fifteen others and P.W.6 also tried to rescue his brother-deceased and therefore, some other persons, who were present there beat him, pushed him and prevented him from rescuing the deceased. Whereas P.W.6 stated that before stabbing the deceased, A.4 pushed him onto the ground stating that he was also responsible for the situation and therefore, he fell down and received injuries on his right knee. Further Ex.P.4 report given by P.W.5 was received by the police at 4.30 a.m. in the police station. But according to P.W.5, at about 3.00 a.m. he gave the report to one policeman in the hospital and he himself wrote the report. In the said report he mentioned the details of the incident stating that when he went to the house of P.W.6 at 12.30 p.m., all the accused surrounded the deceased and were quarreling with him. Among them, A.1 was having knife in his hand. While A.2 and A.3 caught hold of hands of the deceased, A.1 stabbed the deceased with the knife on the right side of ribs. When he interfered, A.4 caught hold him. The deceased, after escaping from them, ran towards Mandi Bazar and after going to some distance, A.1 to A.3 caught hold him by chasing him and among them, A.1 stabbed on the stomach, chest (left side) and on the back of the deceased. Intestines of the deceased came outside. Meanwhile, police came to the scene of offence and shifted the deceased to the hospital. Whereas the evidence of P.W.6, as stated above, does not support the said version. Further P.W.5 did not state to the police what is found in his chief-examination that he had acquaintance with the accused prior to the incidence and P.W.6 also did not state to the police what is found in his chief-examination that when himself and deceased came out of the house, A.1, A.3 and P.W.4 were found infront of the house and P.W.4 abused the deceased in filthy language and the deceased picked out a small knife and threatened her with dire consequences in a mocking way and that A.4 pushed him (P.W.6) unto the ground stating that he was responsible for the situation, as a result of which, he fell down and received injuries on his right knee. But, there is no evidence on record to show that P.W.6 was sent to hospital nor any medical evidence such as wound certificate was produced. According to P.W.5, he gave report to police at 3.00 a.m. but according to P.W.12- investigating officer, report was given at 4.00 a.m. and he registered the case at 4.10 a.m. There is an endorsement on the first information report by the concerned Magistrate, Kurnool to the effect that he received the same at 11.00 a.m. on 07.04.2004, whereas the information about the incident was given in the police station at 4.30 a.m. Thus there is a delay of five and half hours in sending the F.I.R. to the court, which has not been properly explained by the prosecution. Therefore, this Court is of the view that the evidence of P.Ws.1, 5 and 6, whose evidence is suffering with discrepancies, cannot be believed and placing reliance on their evidence it is not safe to convict the accused that too for the offence under Section 302 IPC, which is punishable with capital punishment. Hence this Court is of the view that the prosecution miserably failed in its attempt to connect the accused with the commission of the offence. It is well settled proposition of law that in an appeal against acquittal, unless there is any apparent error or perversity, there is no need to interfere with the acquittal order when the learned trial judge, from the possibility of two views, has taken the view, which is in favour of the accused. Further in the absence of any substantial and compelling reasons pointed out by the learned Public Prosecutor, we cannot come to a different conclusion than the one reached by the Court below. We see no merit in the appeal. 11. The appeal is accordingly dismissed. _______________ A. GOPAL REDDY. J _________________ R.KANTHA RAO, J NOVEMBER 02, 2011 Tsr.