THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.638 of 2002 JUDGMENT: 1. A.4 in Sessions Case No.396 of 1999 on the file of the III Additional Sessions Judge, Nalgonda, filed this Criminal Appeal, under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’), aggrieved by the judgment dated 06.12.2001, whereunder and whereby he was convicted of the offence under Section 304 I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for there months; and further convicted of the offence under Section 324 I.P.C. and sentenced to undergo rigorous imprisonment for a period of one year. 2. Originally, police laid the charge sheet against five accused A.1 to A.5, and the same was taken on file as Sessions Case No.396 of 1999. Subsequently, the case against A.3 was separated and renumbered as Sessions Case No.265 of 2001, and common judgment was delivered in both the cases. 3. The brief facts that are necessary for disposal of this Criminal Appeal may be stated as follows: The deceased Kamsani Rajamma @ Rajeshwari is younger sister of P.W.1. A.5 is an auto driver and A.1 to A.4 are his friends. On the evening of 15.7.1998, all the accused gathered at the house of A.1 and consumed whisky and beer and proceeded to Bollepally village in the auto of A.5 and went to the hut of deceased where they found four ladies sitting in front of the hut at 9.00 PM. When the accused asked the deceased for sexual intercourse, she refused. Even after threats by A.1 to A.5 at the point of knives, the deceased did not accept therefor. Then, A.5 caught hold of the deceased and when she resisted, A.1 caused stab injury on the stomach of the deceased. Meanwhile, P.W.3, who is sister-in-law of the deceased, came to the rescue of the deceased and resisted the accused. Then, A.4 caught hold P.W.3 and A.2 and A.3 stabbed on the buttocks of P.W.3 with knives. At that time, male family members P.Ws. 1 and 2 were inside the house and P.Ws.4 and 5, who are neighbourers, and P.W.6-mother of the deceased, came to the scene of occurrence after hearing the galata. On seeing them, the accused fled away from the scene of offence. The deceased and the injured (P.W.3) were shifted to Bhongir hospital and thereafter P.W.1 lodged written complaint. P.W.3 was treated in the Government Hospital, Bhongir and the deceased was referred to Gandhi Hospital, Secunderabad where she died while undergoing treatment. On receipt of written report from P.W.1, police registered the case for the offences under Sections 307 and 324 read with 34 I.P.C. and recorded the statements of witnesses. After death of the deceased, the section of law was altered to Section 302 I.P.C. from 307 I.P.C. Police conducted inquest on the dead body of the deceased and thereafter the dead body was sent for post- mortem examination. The Doctor, who conducted post mortem examination, opined that the deceased died due to complication (haemorrhage) of stab injuries. After completion of investigation, police laid the charge sheet. 4. The trial court framed the following charges against A.1 to A.5: “Firstly, That you on 15.7.1998 at 21.00 hours at Bollepally village did commit murder by intentionally or knowingly causing the death of Kamsani Rajamma @ Rajeswari by stabbing her with knife and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. Secondly, That you on 15.7.1998 at 21.00 hours at Bollepally village voluntarily caused hurt to Kamsani Kalyani when she tried to rescue Rajamma, you A.4 of you caught hold of her and you A.2 and A.3 stabbed her on her butte with knives and Kamsani Kalyani received simple injuries and that you thereby committed an offence punishable under Section 324 R/W 34 of the Indian Penal Code and within my cognizance.” When the charges were read over and explained to the accused in telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate its case, the prosecution examined P.Ws. 1 to 20 and got marked Exs.P1 to P23, besides case properties M.Os. 1 to 4. On behalf of the accused, no oral evidence was adduced, but Ex.D1 was marked. 6. Accepting the evidence of P.Ws. 1 to 3, the trial court, vide impugned judgment, found the appellant/A.4 guilty of the offences punishable under Sections 304 and 324 I.P.C., accordingly convicted and sentenced him as stated supra, while acquitting the other accused. Challenging the same, the present appeal is preferred by him. 7. Now, the point for determination is whether the prosecution established its case against the appellant/A.4 for the offences punishable under Sections 304 and 324 I.P.C. beyond reasonable doubt and whether the judgment of the trial court is correct, legal and proper ? 8. The learned counsel for the appellant contended that the earliest version of the prosecution is that all the accused stabbed the deceased and that no specific overt- act is attributed against the appellant/A.4 in causing the injuries; that the evidence of all the witnesses is clearly an improvement made during the course of trial and such improvement cannot be brushed aside lightly; that there is no other evidence to show that the appellant/A.4 alone stabbed the deceased and caused injuries to P.W.2; that no recoveries were effected from the possession of the appellant/A.4, and so the appellant/A.4 is entitled for benefit of doubt as extended to the other accused. Hence, he prayed to set aside the convictions and sentences. 9. On the other hand, the learned counsel representing the Public Prosecutor contended that the evidence of P.Ws. 1 to 3 is very clear that it is the appellant/A.4 alone who stabbed the deceased with knife on abdomen; that the cause of death of the deceased was due to complication of injuries; that there is no other reason for P.Ws. 1 to 3 to foist a false case against the appellant; that, the case of the appellant stands on different footing than the other accused; that basing on the evidence on record, the trial Court rightly found the appellant/A.4 guilty by the trial Court and convicted and sentenced him, and there are no grounds to interfere with the same. Hence, she prayed to dismiss the Criminal Appeal. 10. P.W.16 is the investigating officer, who conducted inquest on the dead body of the deceased in the Mortuary of Gandhi Hospital, in the presence of P.W.14 and others. P.W.14 did not support the case of prosecution, except identifying his signature on the inquest report. As seen from Ex.P9-inquest report, the inquest mediators opined that the deceased died due to stab injuries. 11. P.W.18 is the Doctor, who conducted autopsy on the dead body of the deceased on 19.7.1998 at 3.00 PM and found the following injuries. 1. A paraumbilical vertical sutured wound over the left side of the abdomen 20 cms with 16 sutures; 2. A stab wound over the left side of the chest 2 cms below and lateral to the nipple- 2 x 1 cm spindle shaped, sharp margins and angles entered the pleural cavity; 3. Fracture sternum in the middle; 4. Multiple contusions over the anterior wall of the heart; 5. Sutured wounds in the stomach and diaphram with 600 ml of blood in peritorial cavity. The Doctor opined that the cause of death to the best of her knowledge was due to complication (Haemorrhage) of stab injuries. Ex.P15 is the post mortem report and Ex.P16 is the cause of death mentioned in Ex.P15. The cause of death of the deceased as spoken to by P.W.18 and the recital in Ex.P16, remained unchallenged. Therefore, from the above, the prosecution proved its case beyond reasonable doubt with regard to homicidal nature of death of the deceased. Now, it has to be seen whether the appellant is the assailant of the deceased or not. 12. The trial court placed reliance on the evidence of P.Ws. 1 to 3, who said to be eye-witnesses present at the time of the incident. The incident is alleged to have taken place during night time at 9.00 PM. Admittedly, the appellant is stranger to the prosecution witnesses. Admittedly, none of the witnesses gave descriptive particulars of any one of the assailants of the deceased. Still, no test identification parade is conducted so as to test the memory of the witnesses with regard to the participation of any one of the accused who were arrested during the course of investigation. 13. P.W.1 is the elder sister of the deceased. She set the criminal law into motion by lodging Ex.P1-complaint and Ex.P13 is the F.I.R.. It is well settled that F.I.R is an important document where the earliest version of the prosecution case is narrated, which can be compared with what the maker testifies in the court. In the earliest report, no specific overt-acts are attributed against any one of the accused. Only an omnibus accusation is leveled against all the accused stating that one Bhaskar and his friends and 3 other persons came to her house in fully drunken state and at the point of knife threatened the deceased to agree for sexual intercourse, and when she refused, the said persons stabbed on the stomach of the deceased. Name of the appellant has not been specifically mentioned in the F.I.R. as one of the assailants of the deceased. Similarly, there is no evidence let in by the prosecution to show that the appellant was the friend of said Bhaskar. P.Ws. 1 to 3 testified before the court for the first time that the appellant alone stabbed on the abdomen of the deceased with knife. But, they did not state the same when they were examined by police during the course of investigation, under Section 161(3) Cr.P.C., because the investigating officer, who is examined as P.W.19, specifically admitted that except the confessional statement of A.5, no specific overt-acts are attributed against A.4 in the statements of witnesses. There cannot be any dispute that the confession given to a police officer by A.5 is not admissible under law. From the admission made by the investigating officer, it can safely be held that the evidence of P.Ws. 1 to 3 with regard to A.4 stabbing the deceased, is clearly an improvement made during the course of trial. Such an improvement cannot be brushed aside lightly because it will affect the main substratum of the prosecution case. When the earliest version of the prosecution would clearly indicate that one Bhaskar and his friends stabbed the deceased when the latter refused to agree for sexual intercourse, the evidence of P.Ws. 1 to 3 that A.4 alone stabbed the deceased, cannot be accepted. The other accused were admittedly given a benefit of doubt. When the case of prosecution is that all the accused stabbed the deceased as well as P.W.3, having given a benefit of doubt to other accused, the same should have been extended to the appellant/A.4 also. Even assuming for a moment that the evidence of P.Ws. 1 to 3 is to be accepted that the appellant was the assailant of the deceased, that statement is an omission and that omission will go to the root of the prosecution case. 14. Further more, when the incident is alleged to have taken place during night time, it is not known how these witnesses identified appellant/A.4 alone because none of the witnesses gave any descriptive particulars of the assailants when they were examined by police. Ex.P5-rough sketch does not indicate about illumination of light or existence of any street light or availability of electricity connection to the house of the deceased. It is not the case of prosecution that the witnesses identified the assailants because of any striking features or any specific identification marks. Therefore, the trial court ought to have rejected the evidence of P.Ws. 1 to 3 and ought to have given the benefit of doubt to the appellant/A.4 also in view of the fact that it is unbelievable to identify the assailants of the deceased three years after the incident. If the evidence of P.Ws. 1 to 3 is to be disbelieved, there is no other evidence to show that the appellant was the assailant of the deceased. No weapon of offence has been seized at the instance of the appellant/A.4, though M.Os. 1 to 3-knives were seized at the instance of the other accused. When witnesses made improvements in their evidence, it is not safe to place an implicit reliance on their evidence to base a conviction. Therefore, the appellant/A.4 is entitled for benefit of doubt, and the convictions and sentenced recorded by the trial Court against the appellant/A.4 are liable to be set aside. 15. The Criminal Appeal is, accordingly, allowed, setting aside the convictions and sentences recorded against the appellant/A.4 in judgment dated 06.12.2001 in Session Case No.396 of 1999 on the file of the III Additional Sessions Judge, Nalgonda, and the appellant/A.4 is found not guilty of the offences punishable under Sections 304 and 324 I.P.C. and accordingly he is acquitted. The bail bonds of the appellant/A4 shall stand cancelled and the fine amount, if any, paid by him shall be refunded to him. ------------------- K.C.Bhanu, J. 05.10.009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.638 of 2002 DATED: 05.10.2009 Mohd. Zaheer, s/o. Chote Miyam …Appellant And State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.638 of 2002 DATED: 05.10.2009