THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE K.C. BHANU CRIMINAL APPEAL NO: 431 of 2007 JUDGMENT: (per Hon’ble Sri Justice K. C. Bhanu) 1. This appeal under Section 378 Cr.P.C is filed by the State against the judgment dated 6.04.2005 passed in S.C.No.218 of 2001 by the V Additional Sessions Judge (F.T.C.) West Godavari District at Eluru, whereunder and whereby all the three accused were found not guilty for the charges under Section 302 r/w 34 IPC, and accordingly, they were acquitted under Section 235(1) Cr.P.C. 2. The prosecution case is that PW.1 is the grandson, PW.4 is the wife and PW.5 is the co-brother of Kuchipudi Satyanarayana (hereinafter referred to as ‘the deceased’). The deceased was an agriculturist and his lands were situated adjacent to the land of the accused. There were disputes between the accused and the deceased with regard to boundaries. On the date of incident PW.1 and the deceased went to the fields. While the deceased was returning from the fields on his bicycle at about 10.00 a.m., near Chakala Cheruvu, A.1 hacked the deceased with a knife and A.2 was present by his side. On seeing the same, PW.1 ran away from the scene due to fear. Basing on Ex.P.15-report lodged by PW.8-Village Administrative Officer on 12.06.1998 along with the statement of LW.1 under Ex.P.17, PW.9-the then S.I of Police registered a case in Crime No.47 of 1998 and issued F.I.R. under Ex.P.16. PW.10 the then inspector took over further investigation. He visited the scene of offence and prepared observation report and rough sketch under Exs.P.11 and P.18. He held inquest over the dead body of the deceased under Ex.P.12, in the presence of PW.8. During the course of inquest, PW.10 examined and recorded the statements of PWs.4 & 5 and then forwarded the dead body to postmortem examination. On 12.06.1998, on requisition PW.6- the Deputy Civil Surgeon Government Hospital, Nidadvole, held autopsy over the dead body of the deceased and opined that the cause of death of the deceased was due to shock and Hemorrhage due to multiple incised injuries. On 17.06.1998, PW.10 arrested the accused and at the instance of A.1 his shirt, lungi and knife (Mos.9, 8 & 10) were recovered in the presence of PW.8 under Ex.P.14 Panchanama. On completion of investigation, and after receiving relevant documents PW.10 filed charge sheet. 3. The charges levelled against the accused are that A.1 and A.2 on 12.06.1998 at about 10 a.m., at Chikkala Village, in furtherance of their common intention, A.1 did commit murder by intentionally or knowingly causing the death of Kuchipudi Satyanarayana, by hacking him with a tapers knife on his left hand, due to which his left hand wrist part cut and separated from the hand, and when the deceased started running from the place by raising cries, A.2 raised cries encouraging A.1 “VESEYYARA CHUDAVADDU” and on that A.1 chased the deceased and hacked him with a tapers knife on his left side neck, left side face, head, left shoulder, left collar bone, left upper arm, right forearm and left side ribs near abdomen and thereby they committed an offence punishable under section 302 r/w 34 IPC. On the same day, same place and time A.3 abetted A.1 and A.2 in commission of offence of murder under Section 302 IPC which was committed in consequence of the abetment, and thereby committed an offence punishable under Section 109 IPC. 4. 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 the charges, the prosecution examined PWs.1 to 10 and got marked Exs.P.1 to P.19 besides the case properties MOs.1 to 11. 8. After the prosecution evidence is closed, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence has been adduced but Exs.D.1 and D.2 contradictions in Section 161 (3) Cr.P.C. statements of PWs.4 and 5 were marked. 9. The trial Court upon considering the evidence on record, found the accused not guilty holding that the prosecution miserably failed to establish the guilt of the accused beyond all reasonable doubt and accordingly acquitted them. Challenging the said order of acquittal, the State represented by the learned Public Prosecutor filed this appeal. 10. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt for the charges under Section 302 r/w 34 IPC against A.1 and A.2 and Section 302 r/w 109 IPC against A.3. 11. The learned Additional Public Prosecutor contended that the evidence of PW.1 is very clear that he was present at the time of incident, and that his evidence was clear that A.1 hacked the deceased with knife and that A.2 was also present at the time of incident; that if the evidence of PW.1 is taken into consideration, it is A.1, who caused fatal injuries to the deceased, and this aspect of the case has not been considered by the trial Court. Therefore, he prays to set aside the order of acquittal and convict the accused. 12. On the other hand, the learned Senior Counsel appearing for the accused contended that the presence of PW.1 at the relevant point of time of the incident is very much doubtful; that though he was present at the time of inquest, he was not shown as an eyewitness to the incident and that some other name was shown in the F.I.R as eyewitness; that as seen from the F.I.R. and inquest report, one Masiboyina Venkataratnam was shown as eyewitness, but he died; that, PW.1 was planted as an eyewitness to the incident, and that except the evidence of PW.1, there is no other evidence to show that the accused are the assailants of the deceased. Therefore, he prays to sustain the judgment of the trial Court. 13. PW.8, who is the inquest panchayatdar, was present at the time of conducting inquest over the dead body of the deceased and issuing Ex.P.12. The inquest mediators opined that the deceased died as a result of multiple injuries all over the body. 14. PW.6, the Doctor, who conducted autopsy over the dead body of the deceased, found the following injuries. 1. 3 x 1 x 1” depth x 1” width incised injury vertically over left side of the cheek from lower border of left eye ball to angle of the left side of the mouth. 2. 5” x 3” ½” depth incised injury obliquely from lower boarder of the left ear across posterior part of the ear cut and the temperol region to the 4” from the upper border of the left ear on the Tempera occipital region of scalp skin is hanging clotted blood present. 3. 6 x 4” x 1” depth incised injury obliquely from left mastoid regions to the cervical vertebral spine cut of left side of the C2 vertebral spinuous process and posterior surface of the neck muscles nerves exposed. 4” posterior to lower border of right ear, clotted blood present. 4. 4” x 1/1” x 1” depth incised injury on the left side of the occipital region of scalp 1” above the 3rd injury cross the 2nd injury at the left post auricular region, clotted blood present injury 5. 3” x ½” x ½” incised injury on the left side of the occipital region 1” above the 4th injury cross the 2nd injury clotted blood present. 6. 2” x 2” depth incised injury horizontally over the C8 vertebra of the spinal coloumn, clotted blood present. 7. 4” x 1” x 1” depth incised injury horizontally over the lower border of the left side of the neck 6” below the left ear to the left spinuous process of C* vertebral clotted blood present. 8. 6” x 3” x 2” incised injury, horizontally on the upper boarder of the left shoulder from tip of the left acromion to upper and medial boarder of the left scapula, red colour muscles and left scapula exposed. 9. 3” x ½” x ½” incised injury on the upper boarder of the left shoulder ½” above the 8th injury, clotted blood present. 10. 1 ½” x ½” x ½” incised injury, horizontally to the ½” below the lateral end the 8th injury, clotted blood present. 11. 5” x 3” x 2” incised injury around the left forearm 6” from lateral gricondife of the left Humesus encircle left humerus encircle left lateral surface postro medial surface of the Fore-arm rareasion exposed left. Radios bone cut at the injury, clotted blood present. 12. Completely cut of left fore arm 8” from the left cubital fossa, both radius & ulna cut, sharp edges clotted blood present. 13. 2 x 1” x ½” incised injury horizontally on the left fore arm 3” from the left cubital fossa, clotted blood present. 14. 1 ½” x ½” x 1” width incised injury obliqully on the anterior surface of the right fore-arm 3” from the left cubital fossa, clotted blood present. 15. 1” x ½” incised injury obliqully on the anterior surface of the right wrist horizontally on the radial side, clotted blood present. 16. 6” x 2” abdomen depth incised injury obliqually on the left lateral side of the abdomen from 7” below the left posterior auxiliary line to 6” above the left posterior superior iliac spine stomach part of intestine, mesently came out. The doctor opined that the cause of death of the deceased to the best of his knowledge was due to shock and Hemorrhage due to multiple incised injuries. He issued Ex.P.3-post mortem certificate. From the evidence of PW.6 and the recitals in Ex.P.3, it is evident that the deceased met with homicidal death. 15. Now it has to be seen whether the accused are the assailants of the deceased or not? 16. In dealing with the appeal against the order of acquittal, there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. The presumption of innocence is further strengthened by an order of acquittal. Ordinarily the appellate Court would not interfere with the order of acquittal unless there are compelling or substantial reasons, viz., inadmissible evidence is taken into consideration or admissible evidence has been over looked, or the findings are not based upon any admissible evidence, are some of the instances which come under the purview of substantial or compelling reasons. 17. The death of the deceased is not in dispute. Taking place of incident near Chakala Cheruvu, which is popularly called as Gurugoyyi, in the outskirts of Chikkala Village, is also not in dispute. PW.10-the Inspector of police got photographed the scene of occurrence by PW.7. Similarly PW.10 observed the scene of occurrence in the presence of PW.8 under Ex.P.11-scene of occurrence observation report. He also seized certain incriminating material found near the scene of occurrence. 18. PWs.2 and 3 did not support the case of the prosecution. The entire case rests upon the solitary testimony of PW.1, PW.4-is the wife of the deceased, and PW.5-is the co-brother of the deceased. Admittedly, they were not present at the time of the incident. They came to know about the incident, went to the scene of occurrence and saw the dead body of the deceased. When a case rests upon the solitary evidence, it must be unimpeachable, true and trust worthy. If the evidence of solitary witness is put in the category of wholly reliable, then there is no other difficulty in accepting the same to base conviction. 19. PW.1 was aged about 13 years as on the date of incident. Admittedly he was studying 5th class and seeking admission into 6th class in Chikkala M.P.U.P. School. He also admitted that he was present in the village when the police visited the village and conducted inquest. He admitted that he went to mango garden for plucking mangoes. The deceased was returning from the fields on his bicycle, whereas PW.1 came with the load of mangoes by walk. When he reached near the village i.e., Chakala Cheruvu at about 10 a.m., A.1 hacked his paternal grandfather with a knife. He admitted that at the time of incident, he was walking at a distance of 1/4 k.m., from the place of incident. If such is the case, it may not be possible for him to witness the incident. He appears to have been planted subsequently i.e., after the death of the deceased. 20. PW.8 is the in-charge Village Administrative Officer of Chikkala village at the relevant point of time. He deposed that on the date of incident one Masiboina Venkata Ratnam came and informed him about the accused attacking the deceased. Then he scribed Ex.P.15 report and presented the same to PW.9-the Sub-Inspector of Police Lakkavaram, who registered the same as a case in Crime NO.47/98, for the offence punishable under Section 302 r/w Section 34 IPC. 21. As a matter of fact, Masiboina Venkata Ratnam is shown as eyewitness when the police conducted inquest over the dead body of the deceased. Therefore, from the earliest version of incident as stated in Ex.P.15 coupled with the recitals in Ex.P.12, PW.1 was not shown as an eyewitness to the incident. Therefore, this witness being the grand-son of the deceased must have been submitted report subsequently. So the presence of PW.1 at the time of incident appears to be improbable and unnatural since schools would have reopened by June 1998, in all probability he must have present in the school. Even assuming for a moment that PW.1 was coming to the house after plucking mangoes by walk it is clear from his own admission that the place of occurrence and the place where he was coming is about 1/4 k.m. In such a case, there is no scope or possibility for this witness to see the incident. If really this witness had seen the incident as stated by him, he would have definitely informed to several persons, who happened to meet him on the way to the house. Admittedly, the occurrence took place in a residential locality. None of the residents of the locality was examined to speak about the incident. Therefore, in the circumstances, it is not safe to place an implicit reliance on the solitary testimony of PW.1 whose evidence cannot be put in the category of wholly reliable. The trial Court has not placed reliance on the evidence of PW.1 and ordered for acquittal of the accused. If the evidence of PW.1 is eschewed from consideration, there is absolutely no evidence to show that the accused committed the offence for which they were charged. There are absolutely no compelling or substantial reasons to interfere with the order of acquittal. The appeal is devoid of any merit and the same is liable to be dismissed. 22. Accordingly, the Criminal Appeal is dismissed. ____________________ (A.GOPAL REDDY, J.) _____________ (K.C. BHANU, J.) 10th August, 2010 Js.