Sec.302,324 and 304 Part II of IPC = When alleged eye witnesses and injured witness and recovery witness turned hostile - No conviction could be given solely basing on interested witness who not directly witnesses the incident and evidence of I.O.- Delay in registering FIR after commencing investigation lost it's sanctity - can not be considered as FIR = Munavath Redia State of Andhra Pradesh, rep., by its Public Prosecutor.= http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=6343

Sec.302,324 and 304  Part II of IPC = When alleged eye witnesses and injured witness and recovery witness turned hostile - No conviction could  be given solely basing on interested witness who not directly witnesses the incident and evidence of I.O.- Delay in registering FIR after commencing investigation lost it's sanctity - can not be considered as FIR = 

The appellant/sole accused in the sessions case was tried by the learned
Additional Sessions Judge for the charges under Sections 302 and 324 of IPC and
was ultimately convicted for the offence under Section 304 Part-II of IPC and was sentenced to undergo rigorous imprisonment for a period of six years. =
 whether PW-4, the wife of the deceased actually witnessed the occurrence and
whether it is safe to place reliance on the evidence of PW-10, the investigating
officer with regard to the recovery of weapon of offence in pursuance of the
confession said to have been made by the appellant to him when PW-7 did not support the prosecution version.

17.     As per the prosecution story, 
the incident took place at about 11.00 p.m.
on 11.04.19997. PW-4, the wife of the deceased stated in her evidence before the
trial Court that 
the police arrived at the village where the offence took place
at about 10.00 p.m. i.e. on the same night itself and 
they examined her at her
house after their arrival. 
 But, it is the prosecution version and also the
evidence of PW-1, the Assistant Secretary of Raikal Gram Panchayat that on the
next day of the incident, the police came to the village and 
thereafter, he
presented Ex.P-1 written report to the police.  
Therefore, in this case
obviously the investigation commenced long prior to lodging of Ex.P-1 by PW-1.

18.     If really the F.I.R. was not registered soon after the police received
information about the murder of the deceased after arriving at the village on
the same night itself, it certainly raises a serious doubt about the
truthfulness of the prosecution version.  
Before examining the authenticity of
the F.I.R. in the instant case, it is relevant to take note of the principles
laid down by the Apex Court on this aspect in the following decisions:
i) In MARUDANAL AUGUSI v. STATE OF KERALA1 
wherein the Apex Court held that the       
entire fabric of the prosecution case would collapse if the F.I.R. is held to be
fabricated or brought into existence long after the occurrence and any number of
witnesses could be added without there being anything to check the authenticity
of their evidence.

she did not specifically state in her chief examination that she
witnessed the actual occurrence.  
She only stated in the chief examination that
on account of the dispute regarding the cutting of neem tree belonging to the
appellant by the deceased, there occurred a quarrel between both of them at 4.00
p.m. where at the appellant stated that he would take away the life of the
deceased and subsequently the appellant killed the deceased by stabbing him with
knife.   
According to her version, after hearing the shouts she and PW-1 came
out and saw the deceased lying on the ground with intestines coming out of the
abdomen.  
There were also injuries on the hips and stomach of the deceased and
that subsequently, the appellant ran away along with his wife. 
 If we go through
the cross-examination of PW-4, she specifically admitted that by the time she
came out of the house, she found her husband lying on the ground with injuries
and PW-3 was by his side.  Thus, from a careful examination of the entire
evidence of PW-4, it is obvious that she never claimed to be a direct witness to
the occurrence. 
 However, the learned trial Court interpreted the evidence of
PW-4 as if she actually witnessed the entire incident.  

 As such, a careful analysis of the evidence of PW-4, the wife of the
deceased in the light of medical evidence forthcoming in this case clearly
indicates that she is not a direct witness to the occurrence but was wrongly
considered as an eyewitness by the learned trial Court. 
This being a case based
on direct evidence, when once it is held that PW-4 was not at all a direct
witness, it is not possible to base a conviction even if the testimony of PW-10,
the investigating officer is believed with regard to the recovery of weapon of
offence in pursuance of the disclosure statement made by the appellant. The
reason being the recovery evidence is only a subsidiary evidence and a
conviction cannot be rested solely on such evidence, in the absence of any other
incriminating evidence indicating involvement of the appellant in commission of
the offence.


 For the reasons stated hereinabove, the order of conviction and sentence
passed against the appellant by the trial Court is set aside and the appeals are
allowed.


THE HON'BLE SRI JUSTICE R.KANTHA RAO      
Criminal Appeal No.1144 of 2003 and Criminal Appeal No.1148 of 2003

26-02-2009

CRIMINAL APPEAL NO.1144 OF 2003    
Munavath Redia

State of Andhra Pradesh,
rep., by its Public Prosecutor.

Counsel for appellant: Mr. K.S.Mahender Reddy

Counsel for Respondent: Public Prosecutor

CRIMINAL APPEAL NO.1148 OF 2003    
Munavath Redia                  ....Appellant

Vs.

State of Andhra Pradesh,
rep., by its Public Prosecutor.

Counsel for appellant: Mr. P.Rana Praveer

Counsel for Respondent: Public Prosecutor

:JUDGMENT:

These two appeals are filed by different advocates against the judgment, dated
25.09.2003 in S.C.No.68 of 1998 rendered by the II Additional Sessions Judge
(Fast Track Court), at Mahboobabad.

2.      The appellant/sole accused in the sessions case was tried by the learned
Additional Sessions Judge for the charges under Sections 302 and 324 of IPC and
was ultimately convicted for the offence under Section 304 Part-II of IPC and was sentenced to undergo rigorous imprisonment for a period of six years.

3.      Challenging the said order of conviction and sentence, these two appeals
have been preferred.

4.      Since these two appeals are preferred against the one and the same
judgment passed by the learned Additional Sessions Judge in the said sessions
case, they are being disposed of by the following judgment.

5.      It was the case of the prosecution that
 the deceased,
the appellant,
PWs.2 and 5 (Munavath Thourya and Bhadru respectively) are natural brothers.
 PW-3(Munavath Rukali) is their mother and
PW-4 (Peekly) is the wife of the deceased.
In the afternoon of 11.04.1997 the deceased cut the branches of the neem tree
belonging to the appellant.
On the same day at about 11.00 p.m. when the
deceased came out of the house, 
the appellant picked up a quarrel with him on
the ground that he had cut the branches of the neem tree and in the course of the said quarrel, he stabbed the deceased with a knife on the abdomen as well as on the left thigh and caused his death.
PWs.2 to 5 witnessed the incident and
when PW-2 intervened at the time of the appellant inflicting stab injuries on the deceased, he also received injuries on his left hand and left forearm. 
 On
the next day at about
10.00 a.m. the police visited the place of occurrence situated in Thanda and
basing on a written report presented by PW-1 (V.B.R.Ranga Rao), the Assistant
Secretary of Raikal Gram Panchayat,  PW-9 (Laxmipathi), the Assistant Sub-
Inspector of Police, Pebbair Police Station registered the case in Crime No. 68
of 1998 for the offences under Sections 302 and
324 of IPC.  Part of the investigation was conducted by PW-9 and the remaining
investigation was conducted by PW-10 (Chennaiah), the Inspector of Police who
filed the charge sheet after completing the investigation.

6.      In the course of the trial before the learned Additional Sessions Judge,
the prosecution in order to establish the guilt of the appellant examined PWs.1
to 10, marked Exs.P-1 to P-14 and M.O.1 knife.
The learned Additional Sessions Judge at the conclusion of
the trial on hearing either side and upon considering the entire evidence on
record found the appellant guilty for the offence under Section 304 Part-II of
IPC, convicted him for the said offence and sentenced him to punishment as
mentioned above.

7.      PW-2, the injured eyewitness who is one of the brothers of the deceased
did not support the prosecution version and he deposed before the trial Court
that on the date of the incident he was suffering from fever, remained in the
house itself and he heard the shouts that thieves entered the village,
thereafter he came out of the house and saw the deceased lying on the ground.

PW-3, the mother of the deceased also did not support the prosecution version
and she stated in her evidence that the appellant and the deceased were living
amicably and she did not witness the incident. 
PW-5, another brother of the
deceased also did not support the prosecution story and according to him he did
not witness the incident at all.  
However, PW-4 the wife of the deceased who is
said to be another witness to the occurrence supported the prosecution story.
Mainly placing reliance on her evidence, the learned trial Court recorded conviction against the appellant as mentioned above. 
 PW-7 (M.Kishan), the
mediator who was present, according to the prosecution at the time of recovery
of M.O.1 knife in pursuance of the disclosure statement made by the appellant to
PW-10, the Inspector of Police, did not support the prosecution case and he
stated in his deposition that nothing transpired in his presence.
However, PW-
10, the investigating officer deposed before the trial Court that in pursuance
of the disclosure statement made by the appellant, he and the mediators were led
by the appellant to his house from where the appellant brought M.O.1 knife and
produced before him.

8.      The learned trial Court relying on the evidence of PW-4, the wife of the
deceased relating to the incident proper and on the evidence of PW-10, the
investigating officer relating to the recovery of the weapon of offence,
convicted the appellant and sentenced him to punishment as mentioned above. 

9.      Now the point for determination in these two appeals is
whether the order
of conviction and sentence passed by the learned trial Court can be sustained.

10.     At the hearing of the appeal, the learned counsel appearing for the
appellant would submit that
the trial Court grievously erred in arriving at the
conclusion that PW-4 is an eyewitness and also committed a mistake in 
considering the evidence of PW-10, the investigating officer in regard to the
recovery of weapon of offence as sufficient despite PW-7 the mediator not
supporting the said version and the order of conviction passed by the trial
Court resting on the evidence of the said two witnesses is unsustainable and is
liable to be set aside in these appeals.

11.     On the other hand, the learned Public Prosecutor appearing for the State
would submit that though PW-4, the wife of the deceased is an interested
witness, her evidence inspires confidence and the learned trial Court also
rightly placed reliance on the evidence of PW-10, the investigating officer in
relation to the recovery of weapon of offence in pursuance of the disclosure
statement made by the appellant and the finding arrived at by the trial Court
requires no interference in this appeal.

12.     PW-8 (Dr.N.Ramulu), the Autopsy Surgeon found the following ante mortem
injuries on the body of the deceased:
i) Stab wound present on the left side of thigh (femeral triangular) 11 x 4 cms
in size.
ii) Stab wound present on the left side of lower abdomen 6 x 4 cms in size.
iii) Incised wound present over the epigascistric region, 7 x 4 cms in size.
iv) Stab wound present on the midline of abdomen, 10 x 8 cms in size and
intestines came out.
v)  Laceration over the large intestines and perforation over the large
intestine present.
vi) Incised wound present on the right lobe of liver
4 x 4 cms in size.
vii)   Blood clots present in peritoneal cavity at about 400 to 500 drops.
viii) Perforation of stomach.
ix) Laceration of 4 x 2 cms over upper lobe of right lung.
x) Perforation of blood vessels of femoral triangle present on left side.

13.     In the opinion of PW-8, the doctor who conducted post mortem examination,
the above injuries are likely to cause death and the death of the deceased was
due to shock and haemorrhage which might have occurred 12 to 24 hours prior to
post mortem examination, as a result of the above mentioned injuries and the
injuries are possible by a weapon like M.O.1 knife.  Incorporating these
findings, he issued Ex.P-9 post mortem report.  Thus, from the evidence of PW-8,
the death of the deceased was undisputedly homicidal.

14.     PW-8 further deposed that on the same day, he examined PW-2 and found the   
following injuries:
i) Laceration over the left hand, 2 x 1 cms in size.
ii) Laceration left forearm, 6 x 4 cms in size.

In the opinion of PW-8, the injuries are simple in nature and might have been
caused by a blunt weapon. 
 Incorporating the said injuries and his opinion, he
issued Ex.P-10 injury certificate.

15.     The prosecution version is that while the appellant was stabbing the
deceased with M.O.1 knife, which is a sharp edged weapon, PW-2 interfered and in
that process he sustained the above injuries noticed by PW-8, the doctor who
examined him.  If really PW-2 interfered while the appellant was attacking the
deceased with a sharp edged weapon, he would not have received the kind of the
injuries noticed by PW-8, the doctor, which according to him were only possible
by a blunt object.  Therefore, it is very much in doubt as to whether really PW-
2 received injuries in the process of rescuing the deceased from being attacked
by the appellant with knife.  Further PW-2 himself stated in his evidence that
he did not witness the incident at all.
The learned trial Court also rightly
acquitted the appellant of the charge under Section 324 IPC for causing injuries
to PW-2 since PW-2 himself did not state about his witnessing the incident or
interfering while the deceased was being attacked by the appellant.  Thus, the
finding of the trial Court that it is not possible to hold the appellant guilty
for the offence under Section 324 IPC solely basing on the medical evidence is
wholly justified and no other view can be taken on this aspect.

16.     The crucial aspects, however, require determination in these appeals are
whether PW-4, the wife of the deceased actually witnessed the occurrence and
whether it is safe to place reliance on the evidence of PW-10, the investigating
officer with regard to the recovery of weapon of offence in pursuance of the
confession said to have been made by the appellant to him when PW-7 did not support the prosecution version.

17.     As per the prosecution story, 
the incident took place at about 11.00 p.m.
on 11.04.19997. PW-4, the wife of the deceased stated in her evidence before the
trial Court that 
the police arrived at the village where the offence took place
at about 10.00 p.m. i.e. on the same night itself and 
they examined her at her
house after their arrival. 
 But, it is the prosecution version and also the
evidence of PW-1, the Assistant Secretary of Raikal Gram Panchayat that on the
next day of the incident, the police came to the village and 
thereafter, he
presented Ex.P-1 written report to the police.  
Therefore, in this case
obviously the investigation commenced long prior to lodging of Ex.P-1 by PW-1.

18.     If really the F.I.R. was not registered soon after the police received
information about the murder of the deceased after arriving at the village on
the same night itself, it certainly raises a serious doubt about the
truthfulness of the prosecution version.  
Before examining the authenticity of
the F.I.R. in the instant case, it is relevant to take note of the principles
laid down by the Apex Court on this aspect in the following decisions:
i) In MARUDANAL AUGUSI v. STATE OF KERALA1
wherein the Apex Court held that the       
entire fabric of the prosecution case would collapse if the F.I.R. is held to be
fabricated or brought into existence long after the occurrence and any number of
witnesses could be added without there being anything to check the authenticity
of their evidence.
ii) In SEVI AND ANOTHER, KOODAKKAL KARIAN AND OTHERS v. STATE OF TAMIL NADU AND                 
ANOTHER2 in which case, it was alleged by the accused that the original F.I.R.
was suppressed by the police officer and it was substituted by another.  Despite
the said fact, the police officer failed to produce the F.I.R. and general diary
into the Court. In such a situation, the Apex Court held that an inference can
be drawn that original F.I.R. was suppressed on account of which the prosecution
case becomes suspicious.  
iii) In MOHAR SINGH ETC. v. STATE OF RAJASTHAN AND OTHERS ETC.3 in which the          
F.I.R. was taken down after the Inspector of Police visited the site and
witnesses were taken to the police station.  Having regard to these
circumstances, the Apex Court held that the F.I.R. is not reliable.
iv) In STATE OF ANDHRA PRADESH v. PUNATI RAMULUAND OTHERS4 in which case the             
investigating officer deliberately not recorded the F.I.R. after receipt of
information of cognizable offence.  The Apex Court held that registering the
complaint as F.I.R. after reaching the spot and after due deliberations,
consultations and discussion, the complaint could not be treated as F.I.R., but
it would be a statement made during the investigation and hit by Section 162
Cr.P.C.

19.     If we examine the facts of the case on hand and analyse the evidence of
the witnesses, there is positive evidence of PW-4, the wife of the deceased to
the effect that the police arrived at the village on the date of the offence at
10.00 p.m. and examined her at her house after their arrival.  If at all PW-4 is
an eyewitness to the occurrence, she would have stated about her witnessing the
incident to the police and basing on such information the police should have
registered the F.I.R.  But, curiously the prosecution version is that on the
next day of the incident, the police came to the village and after receiving a
written report from PW-1, the Assistant Secretary of Raikal Gram Panchayat who
is not a direct witness to the occurrence registered the F.I.R.  The said fact
is also testified by PW-1 in his evidence before the trial Court. From the
contradictory versions of PWs.1 and 4, it is therefore obvious that the
investigating officer deliberately abstained from recording the F.I.R. soon
after receipt of information regarding commission of the cognizable offence. The
situation, therefore, leads to a conclusion that the investigating officer when
he first visited the scene of offence on the night of incident was not in fact
aware as to who were the direct witnesses to the occurrence.
If really PW-4 and
the brothers of the deceased informed PW-9, the Assistant Sub-Inspector of
Police, Pembi Police Station, he would have registered the F.I.R. without any
amount of delay incorporating the names of PWs.2, 4 and others as eyewitnesses.
The inordinate delay in registering the F.I.R. in this case creates any amount
of doubt in the mind of the Court that the eyewitnesses were introduced only as
an afterthought.  The F.I.R. in this case thus looses it's authenticity and in
the strict sense it is only a statement made during the course of investigation
and is hit by Section 162 Cr.P.C.  Further, the manner in which the F.I.R. was
brought into existence raises any amount of suspicion about the introducing
eyewitnesses after due consultations and deliberations.

20.     More so, if we carefully examine the evidence of PW-4, the wife of the
deceased, she did not specifically state in her chief examination that she
witnessed the actual occurrence.
She only stated in the chief examination that
on account of the dispute regarding the cutting of neem tree belonging to the
appellant by the deceased, there occurred a quarrel between both of them at 4.00
p.m. where at the appellant stated that he would take away the life of the
deceased and subsequently the appellant killed the deceased by stabbing him with
knife.   
According to her version, after hearing the shouts she and PW-1 came
out and saw the deceased lying on the ground with intestines coming out of the
abdomen.  
There were also injuries on the hips and stomach of the deceased and
that subsequently, the appellant ran away along with his wife. 
 If we go through
the cross-examination of PW-4, she specifically admitted that by the time she
came out of the house, she found her husband lying on the ground with injuries
and PW-3 was by his side.  Thus, from a careful examination of the entire
evidence of PW-4, it is obvious that she never claimed to be a direct witness to
the occurrence. 
 However, the learned trial Court interpreted the evidence of
PW-4 as if she actually witnessed the entire incident.
A perusal of the
evidence of PW-8, the autopsy surgeon clearly indicates that out of 8 injuries,
one injury was on the thigh and the remaining 7 injuries were on the abdomen of
the deceased.  If really PW-4 was present at the time of actual occurrence and
witnessed the incident, she would have spoken to the fact of the appellant
stabbing the deceased indiscriminately with knife. But, she did not testify the
said fact.  She only stated that by the time she came out of the house, she
found her husband lying on the ground with injuries.

21.     As such, a careful analysis of the evidence of PW-4, the wife of the
deceased in the light of medical evidence forthcoming in this case clearly
indicates that she is not a direct witness to the occurrence but was wrongly
considered as an eyewitness by the learned trial Court.
This being a case based
on direct evidence, when once it is held that PW-4 was not at all a direct
witness, it is not possible to base a conviction even if the testimony of PW-10,
the investigating officer is believed with regard to the recovery of weapon of
offence in pursuance of the disclosure statement made by the appellant. The
reason being the recovery evidence is only a subsidiary evidence and a
conviction cannot be rested solely on such evidence, in the absence of any other
incriminating evidence indicating involvement of the appellant in commission of
the offence.

22.     As such in my considered view, the trial Court wrongly considered PW-4,
the wife of the deceased to be a direct witness to the occurrence and also
wrongly placed reliance on the evidence of PW-10, the investigating officer with
regard to recovery of weapon of offence despite the fact that PW-7, the mediator
who is an independent witness did not support the prosecution version on the
said aspect.
It would appear that the learned trial Court recorded a finding of
conviction against the appellant for the offence under Section 304 Part-II of
IPC on account of grave suspicion against the appellant, the conviction is based
on surmises and conjectures, but not on any legal evidence which is liable to be
set aside in this appeal.

23.     For the reasons stated hereinabove, the order of conviction and sentence
passed against the appellant by the trial Court is set aside and the appeals are
allowed.

?1 AIR 1980 SC 638
2 AIR 1981 SC 1230
3 AIR 1998 SC 2912
4 AIR 1993 SC 2644

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