HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.537 OF 2007 Dated:06-10-2010 BETWEEN: State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Appellant AND Gadhe Subba Rao & Another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.537 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice A.Gopal Reddy) State, represented by Public Prosecutor, preferred this appeal questioning the acquittal order, dated 28.10.2003 passed in S.C.No.579 of 1999 on the file of VII Additional Sessions Judge, Guntur acquitting the respondents-A.1 and A.2 of the charges punishable under Section 302 and 302 r/w 34 I.P.C. 2. The story of the prosecution as narrated during the course of trial is as under: The accused and P.Ws1 to 5 are all residents of Tummala Village. P.W.1 is the elder brother and P.Ws.4 and 5 are the parents of Garikapati Sreerama Murthy (hereinafter referred to as ‘deceased’). The family of the deceased is having prawn ponds at Kattava village located 1 k.m. from their village Tummala. On 26.2.1999 at about 2.00 p.m., when one Chintala Hanumantha Rao was proceeding towards Mrutyumjayapalem via Kattava, the deceased asked him for lift upto his prawn tanks, for which, said Hanumantha Rao informed him that there was no petrol in his scooter. Then both of them went to the house of A.1, the deceased went into the house of A.1 and asked him for petrol, for which, A.1 replied that no petrol was available. After informing the same, said Hanumantha Rao went and asked A.1 to give two litres of petrol. After receiving the money, A.1 gave petrol to Hanumantha Rao. On seeing that, the deceased felt insulted and questioned A.1 as to why he did not provide petrol for him. There was exchange of words between the accused and deceased and the deceased abused A.1 in filthy language and went away. On the same day, at about 5.00 p.m., again some quarrel took place between the deceased and A.1 over the same issue at the house of the deceased. P.Ws.1,4 and 5 witnessed the quarrel, subsided the matter and sent A.1 away. While leaving the place, A.1 threatened the deceased with dire consequences. On 27.2.1999, P.W.1 and the deceased went to the house of one Matchaiah to help him in construction of house i.e. slab work. While they were attending the said work, A.2 came there, called the deceased stating that A.1 is calling him. Immediately, the deceased followed A.2. On the way, A.2 asked the deceased that they could have some liquor before they go to the house of A.1. The deceased being alcoholic obliged A.2 and followed him. Out of suspicion, P.W.1 followed the deceased. As soon as the deceased entered into the varandah of the house of A.1, A.2 caught hold of him, A.1 hacked him with a knife on his left side of the neck, as a result of which, the deceased fell down and died on the spot. When P.W.1 tried to interfere, the accused threatened him with dire consequences. Immediately, P.W.1 ran away towards the village, informed the same to the elders and came back to the house of A.1 and found the dead body in the open land of A.1 in a pool of blood. Immediately, he lodged Ex.P.1 complaint with the Sub-Inspector of Police-L.W.16, Chodayapalem Police Station, on the basis of which, a case in Crime No.8 of 1999 was registered for the offence under Section 302 IPC and Ex.P.8-F.I.R. was issued. P.W.11-Inspector of Police took up investigation on 28.2.1999, proceeded to the scene of offence, observed the scene of offence, prepared rough sketch-Ex.P.14, conducted inquest over the dead body of the deceased. Ex.P.4 is the inquest report. During the inquest, he recorded the statements of P.Ws.7,8 and 9 and seized the material objects and referred the dead body for post-mortem examination. On 28.2.1999 at 3.15 p.m., P.W.10- Civil Assistant Surgeon, community health center, Repalle conducted autopsy over the dead body of the deceased and issued Ex.P.7 post- mortem certificate and opined that the deceased died due to shock and heamorrhage due to multiple injuries and injuries to vital parts on neck. On 11.3.1999, P.W.11 arrested the accused. After completion of investigation and on receipt of relevant reports, he laid the charge sheet against the accused. 3. To substantiate the case of the prosecution, P.Ws.1 to 11 were examined and Exs.P.1 to P.14 were marked besides material objects 1 to 5. On behalf of defence, no oral evidence was adduced, but a relevant portion of Section 161 Cr.P.C. statement of P.W.1 was marked as Ex.D.1. 4. The learned Sessions Judge after appreciation of oral and documentary evidence was of the opinion that the prosecution miserably failed to prove the guilt of A.1 for the offence under Section 302 IPC and the guilt of A.2 for the offence under Section 302 r/w 34 IPC beyond all reasonable doubt, and accordingly, acquitted them of the charges. 5. We have heard the learned Public Prosecutor who has taken us through the entire evidence on record and also the findings recorded by the lower Court. 6. 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. 7. P.W.1, who is no other than the elder brother of the deceased set the criminal into motion by lodging Ex.P.1 report on 28.2.1999 at 2.00 a.m. He deposed that on 27.2.1999 at about 9.00 a.m. when the deceased asked A.1 for purchase of petrol, A.1 said that there was no petrol, but later, he sold petrol to one Chintala Hanumantha Rao. On that, the deceased abused A.1 in filthy language for not selling petrol to him. On the next day at about 10.00 a.m. A.1 came to his house and questioned the deceased as to why he abused him in filthy language yesterday. On that, the deceased beat A.1. They separated both of them and sent A.1 away. On that day, at about 2.00 p.m., himself, the deceased and P.W.2 went to the work for construction of slab of Repalle Machaiah in the village. Just before completing the slab work, A.2 came there and took the deceased along with him saying that A.1 wanted to give a party to him to get the dispute settled in a compromise manner. Immediately, after A.2 took the deceased along with him, he (P.W.1) followed them upon the instructions of P.W.2. When the deceased reached the house of A.1 at 7.00 p.m. and was going to the varandah, A.2 caught hold of him and then A.1 hacked with a knife on the left side neck of deceased. Immediately, when he went there, A.1 warned him that he would also receive the same fate. The deceased immediately fell down and died on the spot. Then he came back by running into the village and informed the same to his parents-P.Ws.4 and 5 and again he went to the dead body of the deceased. He found pool of blood in the varandah of A.1’s house, but the dead body was not found there. The dead body was found in the black gram crop at a distance of 15 yards from the house of A.1. On that night itself, he went to Choudayapalem police Station at about 2.00 a.m. and gave Ex.P.1 report to the police. P.W.2 turned hostile and has not supported the version of P.W.1 about his advising P.W.1 to follow the deceased when A.2 took the deceased to the house of A.1. P.W.11 is the investigating officer. He deposed that the Sub-Inspector of Police, Repalle Police Station who was also incharge of Choudayapalem Police Station, upon receipt of Ex.P.1 at 2.00 a.m. on 28.2.1999 registered a case in Crime No.8 of 1999 and issued Ex.P.8-F.I.R. and informed him about the registration the case. Immediately, he reached Choudayapalem Police Station at 3.00 a.m. on the same day and took up investigation. On the same day, at 4.00 a.m., he visited Kattava village, secured the presence of P.Ws.1 to 7 and examined and recorded their statements. At 7.00 a.m. on the same day, in the presence of mediators- P.Ws.7 and 8, he observed the scene of offence, which is located in Kattava village in the varandah of the house of A.1, which is a thatched house. He prepared observation report and seized the bloodstained earth from the varandah of the house of A.1. He located the dead body of the deceased in the field of A.1. He seized bloodstained earth, control earth and also seized other material objects. He prepared observation report under Ex.P.9, got the scene of offence photographed through L.W.10, conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination. P.W.6, who is said to have observed the pool of blood in the varandah of the house of A.1, turned hostile and has not supported the case of prosecution. Similarly, P.W.7- village administrative officer, who is witness to the inquest, has not supported the case of the prosecution as he deposed that he had not observed anything in the house of A.1. P.W.8, who signed Ex.P.4-inquest report turned hostile. P.W.9, who is a witness to the inquest, has also not supported the case of the prosecution and seizure of M.O.1-knife. 8. The doctor who conducted autopsy, observed the following external injuries on the dead body of the deceased: 1. An incised cut injury of 6” x 1 ½” x cervical vertebra deep over left side of neck starting from below the left ear extending to the underlying structures i.e. muscles, vessels, nerves and fracturing C3 vertebra with blood clots in the surrounding area. 2. A contusion of 2” x ½” over fore head on left side near hair line red in colour. 3. A contusion of 3” x 1 ½” back of left shoulder red in colour. 4. A contusion of 3” x 2” over interior angle of back of right scapula. The doctor issued Ex.P.7-post mortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to multiple injuries and injuries to vital parts of neck. According to the prosecution, P.W.1 is an eyewitness to the incident, who stated that he followed the deceased apprehending danger when the deceased was called by A.2 and saw A.1 hacking the deceased with the knife. But the post-mortem examination report and the evidence of P.W.10 shows that there are three contusions over left side forehead, back of left shoulder and interior angle of back of right scapula over the body of the deceased. Had P.W.1 witnessed the incident, he would have stated as to how the deceased received the contusions all over the body. But he never stated about the contusions. Further M.O.1-knife does not contain any bloodstains as per Ex.P.13-RFSL report. Thus his evidence is not supported by the medical evidence. Further as already observed, his evidence is also not supported with the evidence of P.W.2. Therefore, his witnessing the incident is doubtful. Furthermore, according to P.W.1, he himself drafted Ex.P.1 report, but in the cross-examination, to the question posed by the court whether he can write the contents of the document of Ex.P.1 report, if dictated by the Court, he answered that he cannot write the same and he does not know the English letters. Therefore, his filing the report under Ex.P.1 with his own handwriting is also doubtful. There is a delay of 48 hours in dispatching the F.I.R. to the Court, which has also not been properly explained by the prosecution. Under these circumstances, if the evidence of P.W.1 is eschewed from consideration, there is no other evidence to connect the accused with the commission of offence. The lower Court after considering the entire evidence in proper perspective rightly found that the prosecution miserably failed to bring home the guilt of the accused. 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. 9. The appeal is accordingly dismissed. _______________ A. GOPAL REDDY. J _________________ RAJA ELANGO, J OCTOBER 06, 2010 Tsr.