IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1726 OF 2006 DATE:22.02.2010 Between: Neelagiri Venkata Rao (A-2) …… Appellants/Accused No.2 And: The State of AP, rep. by its PP …..Respondent. HON’BLE SRI JUSTICE V.V.S. RAO AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1726 OF 2006 JUDGMENT: (per Hon’ble Sri Justice Samudrala Govindarajulu) The appellant/2nd accused (A-2) questions judgment dated 05.09.2005 of the II Additional Sessions Judge, Guntur in Sessions Case No.791 of 2001 by which he was convicted under Section 120B(1) IPC and was sentenced to life imprisonment and fine of Rs.500/-; and was convicted under Section 302 IPC and sentenced to life imprisonment and fine of Rs.500/-. A-1 who was facing charge for offence punishable under Section 120(B)(1) IPC died when the matter was pending in the lower court. A-1, A-2 and the deceased Alapati Nageswara Rao were workers in Sangam Dairy, Vadlamudi. Due to differences between A-1 and the deceased in chit fund transactions, it is alleged that A-1 and A-2 conspired and A-1 instigated A-2 who attacked the deceased with M.O.4 knife near transformer of Sangam Diary quarters at Vadlamudi and that after inflicting injuries, A-2 left his chapels M.O-2 there, went towards A-1 and both of them ran away. During trial in the lower court, 12 witnesses were examined for the prosecution and 10 documents and 7 material objects were marked. Plea of A-2 is one of the total denial. P.W.1 is wife of the deceased. On information furnished to her about the offence, she rushed to the spot and thereafter she gave Ex.P.1 report to P.W.11 who is the then Sub Inspector of Police, Chedrolu. He registered Ex.P-1 on 20.06.1999 at 1.30 p.m as case in Crime No.72 of 1999 under Section 302/34 IPC and issued Ex.P-7 F.I.R. P.W-12 Inspector of Police, Tenali Rural Circle took up investigation in this case. He conducted inquest on dead body of the deceased on the same day under cover of Ex.P-3 inquest report. He prepared Ex.P-8 rough sketch of scene of the offence. He sent dead body of the deceased to District Hospital, Tenali where autopsy was conducted by P.W.7 on the dead body on 21.06.1999. P.W.7 gave Ex.P-4 post-mortem report giving list of the following ante-mortem injuries found on the dead body:- 1. Stab injury size of 1” x ½” x 2/ ½ below the right nipple. 2. Stab injury of 1½ x ½” x 4” front of chest lateral to the left side of the sternum. Elliptical in shape, oblique in direction. 3. Stab injury of 1½ x ¾” x 3” on the side of injury no.2. Elliptical in shape, oblique indirection. 4. A transverse elliptical stab injury of 1 ½” x ½” x 1” over the front of the chest on the left side 2” from the middle of sternum. 5. Elliptical oblique, stab injury of 1 ½” x ½” x 1” below injury No.4. 6. Elliptical stab injury of 1 ½” x ¾” x ¾” over the hypochandrial region. 7. An elliptical vertical stab injury of 1 x 1 x 1” on the left side of the abdomen. 8. An elliptical stab injury of 1” x ½” x ½” over the back of right shoulder. 9. An elliptical stab injury just lateral to the spinal card 1 ½” x 1” x ¼”. 10. Vertical incised wound 1” x ½” x1/2” over the middle of spinal column below the injury No.9. 11. Stab injury 1” x ¼” x ½” over the back of neck of the right side transverse in direction. All the above injuries are ante-mortem in nature. In Ex.P-4 post-mortem certificate, he opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries about 24 hours prior to autopsy. In cross examination, P.W7 deposed that all the injuries are not elliptical in shape and that elliptical injuries can be caused by double edged cutting weapon and that single edged weapon causes wedge shaped injuries and that as there are elliptical and non-elliptical injuries, the deceased in all probability might have been attacked with two different kinds of weapons. He says that he did not describe shape of injury No.1 and that if injury No.1 is also elliptical in shape, he would have mentioned the same in his certificate. But, surprisingly after arrest of A-2, the Investigating Officer P.W.12 seized M.O.4 knife at the instance of the accused under cover of Ex.P-6 seizure panchanama on 26.06.1999, in pursuance of the alleged statement of the accused covered by Ex.P-5 mediatornama. In Ex.A-6 seizure panchanama, MO-4 is described to the effect that blade of the said knife is having pointed tip with width of one and half inch at its bottom and one inch width at its end and that it is having sharpens on one side only. Thus, MO.4 seized by the Investigating Officer at the instance of A-2 was to a single edged weapon and not double edged weapon. Injury Nos. 2 to 9 of Ex.P-4 certificate could not have been caused with M.O.4. There is no possibility of M.O.4 causing those elliptical stab wounds. Therefore, it is contended by the appellant’s counsel that there is no possibility of all the injuries found on body of the deceased being caused by a single person with a single weapon and that there is possibility of all the injuries on the deceased being caused by more than one person with more than one weapon. At this stage, Ex.P-1 report given by P-1 to the police becomes more relevant. In Ex.P-1, it was stated that Devarapalli Narayana and Devarapalli Narendra (P.W-4) informed her about the offence and that on advise of A-1, both A-2 and Shaik. Mastan Valli together intentionally chased her husband in pursuance of a plan hatched by all of them and killed her husband stabbing with knives in front of transformer. In Ex.P-1, P.W.1 further requested the police to take immediate action against A-2 and Shaik. Mastan Valli who killed her husband and also against A-1 who advised them. In Ex.P-3 inquest also, the inquest panchayatdars opined in column No.XV that for death of the deceased Alapati Nageswara Rao, A-2, Shaik. Mastan Valli, A-1 and some other un-known persons were responsible. Thus, during inquest, web of prosecution is enlarged to include some more unknown persons than A-2, Shaik. Mastan Valli and A-1. Basing on Exs.P-1 and P-3 and also medical evidence indicated above, it is contended by the appellant’s counsel that there were plurality of persons who attacked the deceased and who caused his death with plurality of weapons. P.W.10 stated that as no evidence was forthcoming against Shk. Mastanavalli, he was not included as an accused person in this case. But, the prosecution failed to explain statement of P.W1 contained in Ex.P-1, opinion of panchayatdars contained in Ex.P-3 inquest report and medical evidence which throw light to the effect that there was more than one person who attacked the deceased. There is only one eye witness who was examined by the prosecution as P.W.2. He is working as ‘Mutta collie’ in Sangam Diary. The offence took place on 20.06.1999 at about 11.00 or 11.30 a.m. it is evidence of P.W.2 that when he was going at that time towards Sangam Diary side from quarters, the deceased was coming towards him to come towards quarters side and that when the deceased was passing at that point, A-1 raised voice calling A-2 saying that he should stab the deceased with knife; and that immediately A-2 stabbed the deceased with knife on backside and on backside of neck and also chest portion of the deceased and that after receipt of injuries, the deceased raised cries and fell down in pool of blood and died on the spot. The fact that the deceased was Secretary of T.N.T.U.C union in Sangam Diary has no relevance in this case. Evidence on record shows that there were differences between the deceased and A-1 with regard to private chits run by the deceased. There was no enmity or motive for A-2 as against the deceased directly. It is not as if A-2 is a hired killer. When there is direct evidence of offence, motive may not play an important role. It has to be seen as to whether evidence of P.W.2 can be believed or not. P.W.2 in cross examination admits that he and the deceased belong to same caste and that he is also one of the members in T.N.T.U.C union affiliated to Telugu Desam Party. P.W.2 deposed that out of fear, he did not go near in order to prevent the attack. He admits that there are rival unions in Sangam Diary. The sole alleged eye witness P.W.2 did not report the incident to anybody much less to the police and did not inform the same to any family members of the deceased much less to P.W.1 who is wife of the deceased. When P.W.12 conducted inquest at 3.30 p.m on the same day at scene of the offence. P.W.2 did not come forward to narrate the incident to the investigating officer in the presence of panchayatdars. No doubt, examination of all eye witnesses at the inquest is a condition precedent for believing their evidence. But, failure to examine an eye witness during inquest though he belongs to a place near scene of the offence, improbablises his version of witnessing the offence. If really P.W.2 witnessed the offence, he would not have been missed from being examined during inquest. Instead, P.W.12 deposed that he examined P.W.2 on the same day at Sangam Diary after inquest when he was looking for witnesses around the scene. Failure to figure as one of or the sole eye witness during inquest, is a strong circumstances which knocks at bottom of P.W.2’s evidence. P.W.3 is another worker in Sangam Diary. He says that at about 11.30 a.m when he was coming from quarters towards Sangam Diary side, he heard cries from near the transformer and that thereafter he went towards transformer side and by then A-1 and A-2 were coming in front of him in running mood and ran away and that he saw the deceased in pool of blood. In cross examination, he deposed that there were four persons near the place at that time including P.W.2 and one Satyanarayana and others. Satyanarayana and others were not examined. He says that two minutes after he heard cries, he happened to see A-1 and A-2 running opposite to him. This witness P.W.3 was also not examined during inquest. P.W.5 deposed that at about 11.30 a.m he heard cries from electrical transformer and that P.W.4 and P.W.2 were at some distance from electrical transformer and that when he enquired then, they told him that A-1 and A-2 are responsible for the same and that the deceased was killed by A-2 who stabbed with knife. He, P.W.2 and P.W.4 went to scene of the offence and saw dead body of the deceased. P.W.4 did not state that he saw the incident. He only says that when other employees in Sangam Diary were going, he also went and saw dead body of the deceased. Thus, there is no reliable evidence on behalf of the prosecution to show that it was A-2 only who killed the deceased. Evidence of P.W.2 cannot be believed as his presence is highly doubtful at the scene at the time of offence. Apart from un- reliability of P.W.2 who is the alleged sole eye witness examined by the prosecution, there is medical evidence which falsifies causing of fatal injuries on the deceased with M.O.4 knife which is stated to have been seized by the investigating officer at the instance of the accused after his arrest. In our opinion, the lower court did not consider and did not assess evidence of prosecution in the right direction and landed in erroneous conclusion. Therefore, we have no hesitation to hold that the prosecution could not establish complicity of A-2 in this case. In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower court against the appellant/A-2 and acquitting him. _______________ V.V.S.RAO, J. ____________________________________ SAMUDRALA GOVINDARAJULU, J. 22.02.2010 Gk. HON’BLE SRI JUSTICE V.V.S. RAO & HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.1726 OF 2006 DATE:22.02.2010 Gk