THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.712 OF 2007 ORAL JUDGMENT: (per the Hon’ble Sri Justice R.Kantha Rao) Heard Sri C.Padmanabha Reddy, the learned Senior Counsel, representing the learned counsel appearing for the appellants, as well as the learned Public Prosecutor, appearing for the respondent-State. 2. Appellant Nos.1 to 5 are Accused Nos.1 to 5, respectively, in the Sessions Case No.245 of 2006. 3. This Criminal Appeal is directed against the judgment, dated 15.06.2007, passed by the V Additional District and Sessions Judge (III Fast Track Court), Nalgonda at Miryalaguda, in Sessions Case No.245 of 2006, convicting and sentencing the appellants/A-1 to A-4 to undergo imprisonment for life, for the offence under Section 302 of the Indian Penal Code (for brevity, “I.P.C.”) and also to pay a fine of Rs.5,000/- each, in default, they shall undergo simple imprisonment for one year. A-1 is also sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default, he shall undergo simple imprisonment of one year, for the offence under Section 307 of I.P.C. A-5 is also sentenced to undergo imprisonment for life for the offence under Section 302 r/w 149 of I.P.C., and also to pay a fine of Rs.5,000/-, in default, she shall undergo simple imprisonment for one year. A-1 to A-5 are further sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-, in default, they shall undergo simple imprisonment three months, for the offence under Section 148 I.P.C. A-1 is further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-, in default, he shall undergo simple imprisonment of one month for the offence under Section 427 of I.P.C. 4. The facts of the case, in nutshell, are that, there were some land disputes between the accused and P.W.1- the de facto complainant with regard to passing of pipelines from their fields. On 25.08.2005 at about 10 or 11 a.m. the deceased – Hari Prasad Reddy along with P.Ws.1 to 5 went to their citrus garden for Vanabhojanam. At about 4.00 p.m., A-1 went there in a tractor bearing No.AP.04-78808, drove the tractor against P.Ws.1 and 2, with an intention to put an end to their lives, which resulted in severe bleeding injuries to their legs. He also tried to drive the tractor against the remaining persons, then they started running in different directions duly making cries. On seeing the same, P.W.5 pelted stones on A-1 and, on hearing the cries, P.Ws.6 and 7 rushed to the scene. On seeing them A-1 fled away. When P.Ws.6, 7 and the deceased went to fetch an auto to shift the injured to the hospital, the accused, who were on wait, suddenly pounced upon the deceased and A-1 armed with a knife gave a blow on the back of the head, A-2 axed on right hand below the shoulders, A-3 axed on the buttocks, A-4 beat him indiscriminately with a stick and A-5 instigated. On seeing the said incident of attack, P.Ws.6 and 7 rushed to P.W.1 and informed him about the same and then shifted all the injured to the hospital. At the hospital, the deceased succumbed to injuries at about 8.00 pm., Thereafter, P.W.1 went to Peddavoora Police Station and lodged a report. On 25.08.2005 at about 21.00 hours on the basis of the said report – Ex.P1, P.W.13, the Sub Inspector of Police, Peddavoora Police Station, registered a case in Cr.No.65 of 2005 and issued F.I.R. - Ex.P.12, examined P.W.1, recorded his statement and referred him to Government Kamala Nehru Hospital. P.W.16, the Circle Inspector of Police, took up investigation, visited the hospital and recorded the statements of P.Ws.1 to 6. On 26.08.2005, P.W.16 also visited the scene of offence, prepared an observation report and rough sketch of the scene, held inquest over the dead body at the hospital in the presence of P.W.10 and prepared an inquest report Ex.P.8. On 26.08.2005, on requisition, P.W.12, the Civil Assistant Surgeon, held autopsy over the dead body of the deceased and opined that the cause of death was due to hemorrhage and shock due to injuries to the vital organs of the brain and issued postmortem report – Ex.P11. On 25.08.2005, P.W.15, the Civil Assistant Surgeon, examined P.Ws.1 and 2 and issued wound certificates – Exs.P13 and P14, respectively. P.W.2 was later referred to O.G.H. and on 08.10.2005 he underwent surgery laprotamy by P.W.14. On 03.09.2005, P.W.16 arrested A-1 to A-5 and recovered M.Os.1 to 5, in pursuance of the statements made by A-1 to A-4, in the presence of P.W.11, under Exs.P.8 to P10 panchanamas. Then sent the material objects to R.F.S.L. P.W.17, the Circle Inspector of police, took up further investigation and after completion of the same, he laid charge sheet. 5. When the charges under Sections 302, 307, 427, 148 and 302 r/w 149 I.P.C., were framed, read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 6. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 17 and got marked Exs.P-1 to P- 15, in addition to Mos.1 to 8, on its behalf. On behalf of accused, no oral or documentary evidence was let in, but marked Exs.D-1 to D-8. Exs.C-1 and C-2 also were marked with consent. 7. Now, the point that arises for consideration is – whether the conviction and sentence recorded by the trial Court against the appellants/A-1 to A-5 can be sustained? 8. The learned Senior Counsel appearing for the appellants would contend that in view of the fact that all the material witnesses for the prosecution being interested and admittedly there was enmity between both the parties, it is quite unsafe to rely on the testimony and that there is inordinate delay in lodging the First Information Report as well as reaching the same to the Court and according to the learned Senior counsel the trial court ought to have acquitted the appellants for all the charges. 9. On the other hand, the learned public prosecutor would contend that there is no hard and fast rule that conviction cannot be based on the testimony of either interested or enimical witnesses. The trial court rightly placed reliance on the evidence of P.Ws.1 to 6 and the delay in lodging the first information report or delay in reaching the first information report to the Court is of no consequence and hence the order of conviction and sentence recorded by the trial court needs no interference. 10. In the first place, indisputably the material witnesses for the prosecution namely P.Ws.1 to 5 are closely related among themselves and also enimical to the accused. P.W.1 is the father of the deceased, P.W.2 is the elder brother of the deceased, P.W.3 is the mother of the deceased, P.W.4 is the sister-in-law of the deceased and P.W.5 is the brother-in-law of the deceased. P.Ws.6 and 7 also belong to the same group of P.W.1 in the village. It is also not in dispute that there was enmity between the appellants and the accused on account of a land dispute and the dispute relating to pipeline, which was laid through the land of P.W.1 to the land of appellants, and a civil suit was also pending before the civil Court to that effect. Further, the appellants are also closely related to each other and it is also born out from the record that the accused as well as the appellants belong to two rival groups in the village. Therefore, while appreciating the evidence of P.Ws.1 to 6, in this case, their testimony has to be subjected to strict scrutiny and it has to be examined with great care and circumspection. According to the prosecution story, there are two incidents in this case. The first incident took place in the land of P.W.1, during the course of which, A-1 drove his tractor against P.W.2 and subsequently against P.W.1 causing some injuries on their person. This incident was supposed to have been taken place at about 4 pm., on 25.08.2005, whereas the second incident took place near the tunnel of M.S. Left canal whereat A-1 to A-5 way laid and attacked Hari Prasad Reddy, (the deceased in this case) with deadly weapons, caused severe injuries on various parts of the body, which ultimately resulted in his death. The attack on the deceased was supposed to have taken place at 4.30 pm., on the same day. According to the prosecution, P.Ws.1 to 5 witnessed the first incident and among them P.Ws.1 and 2 are the injured witnesses whereas P.Ws.6 and 7 and L.Ws.8 and 10 witnessed the second incident. To prove the second incident, the prosecution examined P.Ws.6 and 7. The first and foremost among the contentions urged by the learned Senior Counsel appearing for the appellants is that due to the delay in lodging the first information report as well as its reaching the Court, the prosecution introduced a false and developed version and, therefore, the entire version of the material witnesses for the prosecution has to be disbelieved on this score alone. The learned Senior Counsel invited our attention to Ex.P1 report lodged by P.W.1, which, in brief, is as follows: - “Since long time prior to the date of incident, there were disputes between both parties and on 25.08.2005, P.Ws.1 to 5 and the deceased went to their Citrus garden for Vanabhojana. While they were chitchatting at about 4 p.m., the first appellant, whose land was situated nearby, had driven a tractor and attempted on the lives of P.Ws.1 to 5 and the deceased, but they escaped. He also dashed the Hero Honda splendor motorcycle with the tractor. On account of the first appellant driving the tractor against the prosecution witnesses, they received injuries they were not in a position to move. Thereupon, the deceased, P.Ws. 6 and 7 an L.Ws.8 and 10 came there and rushed to bring an auto to lift the injured to the hospital. While, the said persons were proceeding to fetch the auto, the appellants who laid in wait along with some other persons attacked the deceased with spears, knives and axes. The deceased died on receiving the said injuries. Thereafter the assailants being afraid fled away from the place of occurrence. But the remaining persons who were proceeding with the deceased i.e., P.Ws.6 and 7 and L.Ws.8 and 10 being afraid of the incident returned back and informed P.W.1 and others about the murder of the deceased. As such, in Ex.P1, P.W1 stated that action shall be taken against the appellants and some others who murdered the deceased.” As we have already noticed hereinabove, the appellants are closely related to each other. As per the contents of Ex.P1 report, lodged by P.W.1, apart from the appellants some other persons also participated in the attack. The investigating officer filed charge sheet only against the appellants, without assigning any convincing reason as to why the remaining persons were omitted from being charge sheeted. Even now, it is not known as to who are the said remaining persons, apart from the appellants participated in the attack. The learned Senior Counsel, in support of his contention that there is every scope for the prosecution party to introduce a false and developed version on account of the delay in lodging the first information report, which is further forfeited by inordinate delay in first information report reaching the court of the Magistrate, relied upon the following decisions: 1. R.K.Pane v. State of M.P.[1] 2. Rajeevan v. State of Kerala[2] In R.K.Pane’s case (1 supra) the Supreme Court held as follows: “No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.” In Rajeevan’s case (2 supra), the Supreme Court held that when there is delay of 12 hours in lodging first information report and also further delay in dispatch of F.I.R. to the Magistrate and in view of the evidence of eye witnesses being inconsistent with regard to the material particulars, the possibility that the incident might have happened in some other manner could not be ruled out. There was also possibility of subsequent implication of appellants as a result of an afterthought. When the prosecution failed to explain the delay in lodging the F.I.R., as well as forwarding the same to the Magistrate, in a compulsory manner, the delay adversely effect the prosecution. Thus, it may not always be necessary for the informant to give all the details regarding the commission of offence, including the names of the accused as well as the witnesses. But, omission of important facts in the first information report, in a given case, if the delay is not properly explained might lead to the conclusion that on account of the delay in lodging the first information report, a coloured and distorted version has been introduced or the names of some persons were falsely mentioned as accused in the commission of offence. It all depends upon the facts and circumstances of each case and, more particularly, when the witnesses are either related or enmical, there is every possibility for introducing a false or developed version as an after thought. Insofar as the first incident is concerned, the evidence of P.Ws.1 to 5 is consistent on the aspect that while they and the deceased were in the Bathevia garden, A-1 came driving the tractor and dashed the legs of P.W.1 in the first instance and thereafter dashed P.W.2. In consequence thereof, the tractor ran over the legs of P.W.1 and ran over the abdomen and left leg of P.W.2. The evidence of P.W.15, the Doctor, who examined P.Ws.1 and 2 and issued injury certificates Exs.P13 and P14, respectively, discloses that the injuries on P.W.1 are simple in nature and the injuries on P.W.2 are grievous in nature. The learned Senior Counsel appearing for the appellants would contend that it is the evidence of eye witnesses, including the injured, that as a result of A-1 driving the tractor against P.Ws.1 and 2, the tractor ran over their bodies and if at all that is correct, P.W.1 receiving only a simple injury that to a scratch on the body is unbelievable and, therefore, the version of eyewitnesses has to be doubted on this aspect. We are unable to accept the contention of the learned Senior Counsel for the reason that the evidence of P.Ws.1 to 5 insofar as it relates to A-1 driving the tractor against P.Ws.1 and 2 is consistent on material particulars, their presence at the time of the incident at Bathevia garden can be said to be normal and, therefore, it is not possible for us to discord their testimony merely because there is some exaggeration. Therefore, in our view, the trial Court rightly held that the prosecution proved the charge under Section 307 I.P.C., against the appellants for attempting on the lives of P.Ws.1 and 2 and accordingly, we affirm the said finding. As regards the second incident, it is the prosecution version that after finding P.W.1 with injuries in the Bathevia garden, P.Ws.6 and 7 and L.Ws.8 and 10 and the deceased rushed to fetch an auto to remove the injured to the hospital and while they were on wait, the deceased was attacked by the appellants with knives, spears and axes. P.W.1 lodged the first information report, basing on the information furnished by P.Ws.6 and 7, L.Ws.8 and 10, eyewitnesses to the attack on the deceased. But, the report does not contain the specific overt acts committed by the appellants, as pointed out above. Though the F.I.R., reads that the murder was committed by the appellants as well as some other persons, the names of the persons other than the appellants were not mentioned in the F.I.R., and there was no proper explanation from the prosecution as to why the remaining persons were omitted in the charge sheet and only the appellants were charge sheeted for the offence alleged. P.W.12, the Doctor, who conducted postmortem examination on the body of the deceased, found external injuries, which are anti mortem in nature. In the opinion of the Doctor, the cause of death is due to Hemorrhage and shock due to injury to the Vital organs of the brain (Head injury). P.W.1 stated in his examination-in-chief that the incident of the death of the deceased spread in the village, some of the villagers came to his Bathevia garden and told him about the shifting of the deceased who was with injuries from the tunnel of NSP Canal in auto to the Government hospital, Nagarjunasagar, and further stated that those persons also took him and P.W.2 in another auto to the very same hospital. He further deposed that while he was undergoing treatment in the hospital, he came to know that the deceased succumbed to the injuries at about 7 pm. It is his evidence that he left the Government Kamala Nehru Hospital at about 8.30 pm., in an auto to the police station, Peddavoora, and lodged a report, which is Ex.P1. The version of P.W.1, on this aspect, goes contra to the contents of Ex.P1 report, which are to the effect that after the appellants and some others attacked the deceased with spears, knives and axes, and thereby the deceased died on the spot and the eyewitnesses, who were proceeding along with the deceased, came back and informed the same to P.W.1. In our view, this is a serious lapse in the prosecution version, which will go to the root of the matter, which improbablises the presence of the alleged eyewitnesses at the place of occurrence where the deceased was supposed to have been attacked by the appellants and others. P.W.1 stated in the cross-examination that P.Ws.6 and 7 accompanied him in the auto to the police station that he did not mention the said fact in Ex.P1 report. He also stated in the cross- examination that though P.Ws.6 and 7 were present in the police station at the time of lodging the report, the Sub-inspector of police did not examine them to record their statements. He also admitted in the cross-examination that A-4 filed a suit for injunction against him and, in the said case, temporary injunction was granted and the suit was pending trial as on the date of incident. Similarly there are so many inconsistencies and discrepancies in the evidence of P.Ws.3 to 5 and also P.Ws.6 and 7. P.W.3 stated in the evidence that P.Ws.1 and 2 as well as the deceased were shifted in one and the same auto to the hospital, which is not at all the version of the prosecution. In view of what all stated in the foregoing paragraphs, the presence of P.Ws.6 and 7, at the place of occurrence, where the deceased was allegedly attacked is very much in doubt. Therefore, we accede to the contention urged by the learned Senior Counsel that there was lot of scope for introducing a false and concocted version on account of the delay in lodging the first information report, which is further fortified by the inordinate delay in reaching the F.I.R., to the Court of the Magistrate. The decisions referred above, relied upon by the learned senior Counsel, appearing for the appellants, are very much applicable to the facts of the present case and accordingly we have no hesitation in holding that the facts and circumstances of the present case that on account of the delay in lodging the F.I.R., and in view of the material inconsistencies and discrepancies in the evidence of P.Ws.1 to 7 and noticing the admitted fact that the witnesses, P.Ws.5 and 6, are closely related to each other and P.Ws.6 and 7 not being independent eyewitnesses and since admittedly there were two rival groups in the village and also considering the fact that there was rivalry between the prosecution party and the appellants which arose on account of the land dispute, it is quite unsafe to rely on the evidence of P.Ws.6 and 7 insofar as the second incident in which the deceased was supposed to have been attacked with deadly weapons. Therefore, the appellants are entitled for benefit of doubt for the alleged charge under Section 302 r/w 149 I.P.C., for causing the murder of the deceased in pursuance of their common object. The trial court ought to have acquitted the appellants on the said charge. The conviction and sentence passed by the trial court against the appellants being unsustainable, are set aside in this appeal. Insofar as the charge under Section 307 I.P.C., against the first appellant is concerned, we confirm the conviction recorded by the trial court against A-1. However, the evidence of eyewitnesses is inconsistent on the aspect that the tractor actually run over the bodies of P.Ws.1 and 2 and the medical evidence does not show that the tractor actually had run over the bodies of P.Ws.1 and 2 in which event much more grievous injuries would have been caused to P.Ws.1 and 2. We are of the view that the sentence passed by the trial court against A-1 is severe and requires to be reduced in this appeal. A-1 has been in jail from the date of judgment, which is more than two years. To meet the requirements of justice, we are of the considered view that the sentence can be reduced to the period which had already been undergone by A-1 and accordingly, the same was reduced in this appeal to the period already undergone. In the result, the Criminal Appeal is party allowed and the conviction passed by the trial court, in Sessions Case No.245 of 2006, against A-1 for the offence under Section 307 I.P.C., is confirmed, however, the sentence against him, for the said offence, is reduced to the period already undergone by him. The conviction and sentence against A-1 to A-4 for the offence under Section 302 I.P.C.; against A-5 for the offence under Section 302 r/w 149 of I.P.C.; against A-1 to A-5 for the offence under Section 148 of I.P.C.; against A-1 for the offence under section 427 of I.P.C., are set aside. The fine amount, if any, paid by the appellants shall be refunded to them forthwith. _____________________ JUSTICE D.S.R.VARMA ______________________ JUSTICE R.KANTHA RAO 18TH AUGUST 2009 LMV THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO CRIMINAL APPEAL No.712 OF 2007 (Judgment of the Division Bench delivered by THE HON’BLE SRI JUSTICE R.KANTHA RAO) 04TH AUGUST 2009 [1] 1975 Crl.L.J.870 [2] (2003) 3 SCC 355