Whether it is FIR or sec.161 statement and it's effects ? = Delay in F.I.R. - change of scene of offence - two versions - earlier one was suppressed not brought before the court - after consultations FIR was drafted - Reliability of eye witnesses was totally influenced and so not reliable = = Thummala Lovaraju The State of A.P., rep.by Public Prosecutor, High Court of A.P. Hyderabad = published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=6396

Whether it is FIR  or sec.161 statement and it's effects ? =
Section 154 Cr.P.C. mandates that every information relating to the
commission of a cognizable offence if given orally to an Officer In charge of
Police Station, shall be reduced to writing by him or under his direction and
when it is given in writing, the substance thereof shall be entered in a book to
be kept by such Officer in such form as the State Government may prescribe in
this behalf.
 Prompt first information eliminates the chances of embellishment and false
implication of accused persons.  It diminishes the chances of tutoring the
informant.  Prompt first information gives assurance of the correctness of the
prosecution version.  When the first information report is not issued at the
earliest point of time and the Police Officer after visiting the scene of
offence and after making some investigation registers a case certainly it causes
delay and ultimately it may result in disbelieving the version of the witnesses,
whose evidence is otherwise reliable.  The delay may defeat the justice.  The
deliberate delay may result in burying the truth.  Where in a case FIR is not
issued on the information furnished by an eyewitness.  The spontaneity is lost
and if the FIR is issued after 5 or 6 hours on the ground of ascertaining the
fact, the informant may not be able to explain the delay and his version may be
viewed with suspicious eye.  Therefore the Section 154 Cr.P.C. mandates the
necessity of registering the case as soon as the information of a cognizable
offence is furnished.  The spontaneous version gives an assurance that it may be
true.  If the first information report is an outcome of investigation, the same
cannot be treated as FIR and it always create a reasonable doubt about the
prosecution version.
From the evidence on record, it is clear that the FIR was not at all prepared at
the time alleged by the prosecution i.e. at about 1.30 a.m.  In deed, in the
instant case, the FIR was not the basis for the investigation as it should be.
From the above discussion and from the facts and circumstances, the only
conclusion that can be drawn is that Ex:P.2 was prepared after the police
started investigation and therefore, Ex:P.2 is hit by Section 162 Cr.P.C.=
Delay in F.I.R. - change of scene of offence - two versions - earlier one was suppressed not brought before the court - after consultations FIR was drafted  - Reliability of eye witnesses was totally influenced and so not reliable =

 The earliest version of the case without any embellishment and
improvements should be placed before the court, which inspires confidence of the
court.  Since the earliest version is suppressed in this case, the only
conclusion that can be drawn is that after due deliberations, the FIR was
brought into existence to suite the case of the prosecution.  It has to be seen
that the police waited till the arrival of Pw.6 who is the President of the
Sangham.  The evidence of Pw.6 reveals that he did not give any report to the
police but went to Pw.7 who contested for the post of Chairman of Tadepalligudem
Municipality and who is running a Bar and got Ex:P.2 drafted through Pw.7.  Thus
it is clear that only after consulting Pw.6 and Pw.7, Ex:P.2 was brought into
existence. Therefore, it is clear that there no spontaneous report in this case.
When the FIR is brought into existence after due consultations, it gives scope
for naming the interested persons as eyewitnesses and may also give scope for
implicating innocent persons in a criminal case. In this case, Pw.1 is the
injured witness and  Pws 3 and 4  are the eyewitnesses, who witnessed the
incident.  Their evidence which may otherwise inspire confidence and which
appears to be trustworthy, has to be looked suspiciously, in view of the above-
mentioned lacunae in the prosecution case.  Admittedly, the name of one Valli
Sreenu was shown as an eyewitness but subsequently it was struck off.  This
supports the allegation of defence counsel that the names of witnesses were
chosen and mentioned in Ex:P.2 who were obliged to prosecution 
        The second important circumstance against the prosecution is that
according to the prosecution, the incident occurred near Satyanarayana Swamy 
Temple, Tadepalligudem.  Vijaya Talkies is not shown in the rough sketch
prepared by the police.  Therefore, it is not clear as to what is the distance
between Vijaya Talkies and Satyanarayana Swamy Temple.  Pw.3 admitted that he   
was selling fruits near Vijaya Talkies soon before coming to the scene of
offence, which is near Satyanarayana Swamy Temple.  This means, Vijaya Talkies  
Centre is at some other place.
It is settled law that even if two views are possible on analyzing the
evidence, the version favorable to the accused should be adopted. In the case
between Shingara Singh vs. State of Haryana (2004 Crl.L.J. 828), the Hon'ble
Supreme Court observed as follows: "Where two views are reasonably possible on 
the basis of the evidence on record, the one that favors the accused must be
accepted". 
The learned Sessions Judge had not considered the above facts and 
circumstances and erred in convicting the accused.
In view of above discussion, we are of the view that it is not safe to convict
the accused basing on the evidence of Pws 1,3 and 4.  Therefore, the judgment of
the lower court has to be aside.
        In the result, the appeal is allowed setting aside the conviction and
sentence passed by the lower court against the appellant.  The appellant shall
be set at liberty forthwith if he is not required to be detained in any other
case.

THE HON'BLE SRI JUSTICE A.GOPAL REDDY AND THE HON'BLE SRI JUSTICE B.CHANDRA                
Criminal Appeal No.1252 of 2006

13-3-2009

Thummala Lovaraju

The State of A.P., rep.by
Public Prosecutor, High Court of A.P. Hyderabad

Counsel for appellant:  Sri Yallabandi Ramatirtha.

Counsel for respondent:  Additional Public Prosecutor.

:JUDGEMENT (Per BCK,J)  

        This appeal has been filed by the sole appellant challenging the Judgment
dt. 31.3.2006 in S.C.No.59 of 2001 passed by the 1st Additional District &
Sessions Judge, West Godavari at Eluru.  The appellant was convicted for the
offences punishable under Section 302 and 324 IPC and sentenced to suffer
rigorous imprisonment for life and also to pay a fine of Rs. 500/-, in default
of payment of fine to suffer simple imprisonment for three months, for the
offence under Section 302 IPC and further sentenced him to suffer rigorous
imprisonment for three months for the offence under Section 324 IPC and it was
also ordered that the sentences awarded under both counts shall run
concurrently.
        The appellant will be referred as to 'the accused' for the sake of
convenience.
        The specific charge against the accused is that on 14.4.2000 at about
11.30 p.m. he committed the murder of Pechetti Appa Rao (hereinafter referred to
as 'the deceased'), in front of the shop of one Paradesi Krishna (Pw.5) situated
in Satyanarayana Swamy Temple Complex, Tadepalligudem town by stabbing the    
deceased on left side below chest and also inflicting several cut injuries on
the face of the deceased with a knife used for cutting water melons.  The 2nd
charge against the accused is that at the same time when Peravali Ravi (Pw.1)
intervened and came to the rescue of the deceased, the accused voluntarily
caused hurt to him with the same knife.
        As seen from the evidence let in, the prosecution case in brief is as
follows:  The accused Thummala Lovaraju was the Vice-President of Tadepalligudem
Town Chillra Pandla Varthaka Sangham (hereinafter referred to as 'Sangham'),
Patyala Bhaskara Rao (Pw.6) is the President of the said Sangham, Boddu Saibaba
(Pw.7) is the Vice-Chairman of Tadepalligudem Municipality, Petchetti Venkata
Lakshmi (Pw.8) is the wife of the deceased.
 Vepadi @ Yapadi Manikyam (Pw.2) is a fruit vendor and he was paying Re.1/- to
the said Sangham towards membership fee.  As there was no much fruit business at
Tadepalligudem in the month of January, 2000, he left Tadepalligudem and did
business in another village and thereafter he again started doing fruit business
at Tadepalligudem from April, 2000, on his push cart.  In the 1st week of April,
2000, the accused, who was the Vice-President of the Sangham, asked Pw.2 to pay
the arrears of subscription to the Sangham or else not to do fruit business in
the Town and thereupon Pw.2 replied that number of persons, who committed
default in paying the subscription to Sangham, were doing business and those
persons should also be asked to stop their business and that the said matter can
be decided in Sangham.  Then Pw.2 informed the deceased about the demand of the
accused and the deceased stated that he would enquire with the accused.  On
14.4.2000 at about 11.30 p.m. while Pw.1, Pw.2 and the deceased were talking
together near the shop of the accused at Satyanarayana Swamy Temple,
Tadepalligudem, the deceased questioned the accused as to why he asked Pw.2 not  
to do business in the town and then accused replied that since Pw.2 did not pay
the subscription amount payable to the Sangham for three months, he asked him
not to do fruit business,  thereupon, the deceased told the accused that there
were number of other fruit vendors, who were doing business without paying the
arrears of subscription to the Sangham and therefore Pw.2 should be allowed to
continue his business.  Then an altercation took place between the deceased and
the accused and the accused caught hold the color of the deceased and pulled
him.  Then Pw.1 intervened and separated the accused and the deceased and
intended to take away the deceased from that place.  In the meanwhile, the
accused picked up a knife from the push-cart belonging to Pw.5 and stabbed the
deceased in his left chest near the nipple and also hacked on the head and face
of the deceased with the same knife.  Then Pw.1 intervened by raising his left
hand and the accused caused cut injury on the dorsum of left palm of Pw.1. Pw.1
raised cries that the accused was killing the deceased.  On hearing the cries of
Pw.1, Pws 3,4  and one Nalla Appa Rao (Lw.5) who were on the other side of the
road at that time, came running and found the deceased lying unconscious and
the accused keeping the knife on the carriage and leaving towards Modern Caf.
Thereafter Pw.1, Pw.3, Pw.4 and Nalla Appa Rao took the deceased in an auto to
the Government hospital, Tadepalligudem for treatment, but the doctor declared
that the deceased was brought dead to the hospital.  The President of the
Sangham Patyala Bhaskar Rao (Pw.6) came to the Government hospital,  
Tadepalligudem and then proceeded to the police station and lodged report in
Ex:P.2.
        The SI of police, Tadepalligudem M.R.L.S.S. Murthy (Pw.13) who was in the
police station on the intervening night of 14/15.4.2000 at about 1.30 a.m.
received the report from Pw.6 and registered a case in Cr.No. 81 of 2000 and
issued FIR Ex:P.12 to the J.F.C.M. Tadepalligudem, who received it at 7.30 a.m.
on 15.4.2000.  However, in the meanwhile the Head Constable 1184 who was on
night duty received death intimation from the Government hospital,
Tadepalligudem  and also hospital intimation about the admission of Pw.1 in the
hospital.  After registering the case and after receiving hospital intimation,
Pw.13 proceededto the Hospital.  V.Vijayakumar (Pw.14), the Inspector of police,
Tanuku who was also the incharge Inspector of Tadepalligudem circle, received a
copy of express FIR on 15.4.2000 at 2.30 a.m. and then he reached Tadepalligudem
by 6 a.m.  He secured the presence of Pw.10 and other mediator and observed the
scene of offence, situated opposite to Ramu Sweet Home Kharkahana located in
Stayanarayana Swamy Temple Complex, prepared observation report of the scene of
offence in the presence of Pw.10 and other mediator in Ex:P.5.  He also seized
blood stained earth M.O.5 and control earth M.O.6, two rubber chappals, one
Hawai Chappal (M.O.3), two blood stained gunny bags (M.O.4) and one Titan Quartz
watch (M.O.2), got photographed the scene of offence by Pw.9.  Exs:P.3 and P.4
are the photographs of the scene offence. He prepared rough sketch of the scene
of offence in Ex:P.13 and also secured the presence of Irlapati Vinod Kumar
(Pw.10) and Bazavada Rambabu  and conducted inquest over the dead body of the
deceased in the presence of above mediators.  Ex:P.6 is the inquest report.
Then the dead body of the deceased was sent for post mortem examination.  During
course of inquest, Pw.14 also examined and recorded the statements of Pws 1,3,
4, 6.  Then he also recorded the statements of Pw.5, Pw.7 and Pw.9 on the same
day and handed over the remaining investigation to the regular Inspector of
police.
        Pw.11 Dr.M.Padma who was the Civil Assistant Surgeon conducted post mortem  
examination over the dead body of the deceased and found eight external injuries
on the person of the deceased.  She opined that the cause of the death of the
deceased was due to shock and hemorrhage due to the injury to the heart by a
sharp edged weapon and that the deceased appears to have died about 12 to 24
hours prior to post mortem examination.  She also deposed that the injuries
found on the deceased are possible with M.O.1 knife.
        On 19.4.2000,  Pw.15 on reliable information arrested the accused at 4.30
p.m. and recorded the confessional statement of the accused in the presence of
Goparaju Subba Rao (Pw.10) and another mediator. In pursuance the confession,
the accused led the police and mediators to by-pass road and brought out M.O.1
the knife from the dried water weeds and a panchanama in Ex:P.8 was prepared.
The accused also led Pw.15 and the mediators to his house at Sanamvari street
and produced blood stained biscuit colour shirt with, 'Ramu Tailors' mark and
the same was seized under Ex:P.9.  The material objects were sent to FSL and Ex:
P.14 is the FSL report. After completing investigation, Pw.15 laid charge sheet
against the accused for the offences under Sections 302 and 324 IPC.
        Charges under Sections 302 and 324 IPC were framed against the accused,
read over and explained to him in Telugu and he denied the same and claimed to
be tried.
        In order to prove its case, the prosecution examined Pws 1 to 15 and got
marked Exs:P.1 to P.16 and M.Os 1 to 7.  No witnesses were examined on behalf of
the accused but Ex:D.1 was marked in the 161 Cr.P.C. statement of Pw.1.
        The learned Additional Sessions Judge, West Godavri at Eluru found the
accused guilty of the offences under Sections 302 and 324 IPC and convicted and
sentenced him, as indicated above.
        The learned Counsel for the accused Smt.Shesharajyam submitted detailed
arguments as follows:  The accused has been falsely implicated in this case.
Pw.6 who lodged Ex:P.2 report failed to mention as to who informed him about the
incident.  The alleged eyewitnesses did not give any report to the police.
Though the police enquired and obtained their statements, FIR was not issued on
the basis of such statements and thus the earliest version in this case has been
suppressed.  Ex:P.2 cannot be treated as FIR since it was recorded during the
course of investigation.  The case of the prosecution is that Ex:P.2 was
presented to the SI of police on 15.4.2000 at about 1.30 a.m. whereas Pw.6
deposed that he went to the police station at about 5.30 a.m. and presented
Ex:P.2 report.  Pw.6 is not the scribe of Ex:P.2 and he got it prepared Ex:P.2
by Saibaba (Pw.7). Admittedly the Head Constable received hospital intimations
about the death of the deceased and also about the injuries sustained by Pw.1
much before Ex:P.2 was presented to the police and those hospital intimations
have been deliberately suppressed and the prosecution suppressed the genesis of
the incident. The learned Counsel for the accused vehemently argued that Pws 1,3
and 4 are planted witnesses and their presence at the scene of offence is
doubtful.  Pws 1,3 and 4 are residing at a distance of 1/4th kilometer from the
scene of offence and they are chance witnesses.  Her next submission is that the
scene of offence has been shifted in this case.  The learned Counsel for the
accused argued that Pw.6 admitted that the scene of offence is at Vijaya Talkies
and that the hospital intimation also shows that the scene of offence is at
Vijaya Talkies and that the prosecution has conveniently shifted the scene
offence near to Satyanarayana Swamy Temple to suite its case.  She further
contended that Pw.1 did not sustain the injuries in the incident as claimed by
him but he sustained injuries at some other place in some other incident.  She
further contended that according to the doctor who conducted post mortem
examination, the injury No.1 had clean cut edges and to cause such injuries, the
weapon must have sharp edges on either side and that the M.O.1 is sharp on one
side and blunt on other and its tip is also broken and therefore the injury No.1
sustained by the deceased is not possible with the weapon like M.O.1 and some
other weapon was used in the commission of the crime.  The learned Counsel for
the accused further contended that the evidence of Pws 1,3 and 4 is not
trustworthy since their evidence is contradictory to the medical evidence. She
also argued that according to Pw.6, Pw.1 informed him about the incident at
about 3 a.m. that some galata was taking place at Vijaya Talkies centre and this
shows that no incident occured near Satyanarayana Swamy Temple as stated by Pws  
1, 3 and 4 and that one Kongalla @ Nalla Appa Rao, who was cited as an eye
witness has not been examined by the prosecution.  It is also argued that by 10
or 10.30 p.m. all the business would be closed and the presence of pushcart
vendors i.e. Pws 1,3 and 4 at the scene of offence at about 11.45 p.m. is
doubtful.  It is also argued that even before the accused was arrested, the
Inspector of police visited the house of the accused, but he did not find any
incriminating material in his house and therefore the subsequent recovery of
blood stained shirt, from the house of the accused becomes doubtful.
        The learned Counsel for the accused further submitted that as Pws 1,3 and
4 are supporters of Pw.6, they have concocted a story and implicated the accused
in this case.  She further argued that the prosecution has not come out with
true version and therefore the accused should be given benefit of doubt.  It is
also contended that the name of Valli Sreenu is struck off in Ex:P.2 and this
itself shows that after deliberations and consultations, Ex:P.2 was prepared
citing the names of alleged eye witnesses who are amenable to the prosecution.
        On the other hand, the learned Public Prosecutor argued that Pw.1 is the
injured witness and that he along with Pws 3 and 4 brought the deceased to the
hospital immediately after the incident and their version cannot be disbelieved.
He further argued that the push cart vendors would continue to do their business
till midnight and therefore the presence of Pws 1,3 and 4 at the scene of
offence cannot be doubted.  It is also argued that from the beginning the
prosecution case is that the scene of offence is near Satyanarayana Swamy Temple
and therefore the question of shifting of scene of offence does not arise.  It
is also contended that the police registered the case at about 1.30 a.m. and it
shows that the FIR was lodged without any delay with all the details and that
merely because that there are some minor contradictions, the prosecution case
should not be thrown out.  It is also submitted that the doctor categorically
deposed that the injuries are possible with M.O.1 and that M.O.1 was recovered
at the instance of the accused in the presence of mediators which contains human
blood as per the report of FSL and the prosecution has proved its case beyond
all reasonable doubt.
        The point that arises for consideration is whether the prosecution has
established its case beyond all reasonable doubt?      
        According to Pw.1 that on the date of offence at about 11.30 p.m. he was
near Satyanarayana Swamy Temple talking with the deceased and the accused and  
nobody was present there and that altercation took place between the accused and
the deceased with regard to the issue of allowing Pw.2 to do business and during
that altercation, the accused caught of the color of the deceased and that he
intervened and separated them. 
 Pw.1 further deposed that the accused took out a
knife from the watermelon cart of Pw.5 and stabbed the deceased on the chest
near nipple and hacked him on the head and face and that when he intervened by
raising in left hand, the accused cut on the dorsum of his left palm near his
left thumb with the same knife and when he raised cries that the accused was
killing the deceased, Pw.3 and Pw.4 and Nalla Appa Rao, who were on the other
side of the road came there running.
He further deposed that the accused left
the place on his cycle keeping the knife on the carriage of his cycle and went
towards Modern Caf,
 then he along with Pws 2,3, 4 and one Nalla Appa Rao 
shifted the deceased in a rickshaw to the Government hospital, Tadepalligudem
and that he was also treated for the injury sustained by him.  
He further
deposed that Pw.6 came to the hospital and he informed him about the incident
and thereupon Pw.6 went to the police station and gave a report to the police.
He admitted that his house is at a distance of 1/2 KM from the scene of offence.
        Pw.2 Repadi Manikyam is a fruit vendor. He has not witnessed the incident.
However he speaks about the motive. 
 He stated that he stopped doing business on
pushcart in Tadepalligudem about three months pror to March, 2000 and that in
the last week of March, he started doing business and that the accused demanded 
that (Pw.2) should not do fruit business in Tadepalligudem unless he pays the
subscription to their Sangham.
 It is also his case that then he informed the
deceased.  He further deposed that about 10.30 p.m. on 14.4.2000 he along with
Pw.1, deceased and one Chakrapani were talking near Satyanarayana Swamy Temple    
and that in the meanwhile one Yejji Venkateshwar Rao came thereand then the
deceased asked him to go along with the said Yejji Venkateshr Rao and
accordingly he went to his house along with the Yejji Venkateshwar Rao.  He
further deposed that at about 1.00 a.m. in the mid night when he was at his
house, Pw.3 came to his house and informed about the incident and then he went
to the hospital and by the time he went to the hospital, the deceased died.
Pw.3  Rowthu Somaraju is also a fruit vendor.  According to him, on the date of
incident at about 11.45 p.m. he along with Pw.4 and  Nalla Appa Rao were talking
on the road opposite to Satyanarayana Swamy Temple and that the deceased, Pw.1  
and the accused were talking on the road, in front of the shop of the accused by
the side of Satyanarayana Swamy Temple.  He further deposed that there was an
heated altercation between the accused and the deceased with regard to payment
of subscription by Pw.2 and that Pw.1 separated the accused and the deceased,
but the accused had taken a knife from the watermelon shop of P.Krishana (Pw.5)
and stabbed the deceased with the said knife on his left chest and hacked the
deceased on his head and face and when Pw.1 intervened, the accused slashed Pw.1  
with the same knife and caused injury on the left thumb of Pw.1 and that the
accused kept the said knife M.O.1 on the carriage of his cycle and left the
place towards Modern Caf hotel.  He further deposed that himself, Pw.4 and
Nalla Appa Rao shifted the deceased in a rickshaw to the Government hospital,
Tadepalligudem.  He also stated that the doctor on examining the deceased
declared as brought dead.
Pw.4 Bonda Sreenivasrao also deposed that he is also a fruit vendor and that on
the date of incident at about 11.45 p.m. he along with Pw.3 and Nalla Appa Rao
were talking near Satyanarayana Swamy Temple, at that time, the deceased and
Pw.1 were talking near the shop of the accused at the Temple with regard to
subscription amount payable by Pw.2 to their union.  He further deposed that
during conversation, there was heated altercation between the accused and the
deceased and that they pushed one another and then Pw.1 intervened and separated
them, but the accused picked up a knife, from the push cart placed nearby a
fruit shop and stabbed the deceased on his left chest and hacked him on the face
of the deceased.  He further stated that when Pw.1 intervened, the accused
caused cut injury with the same knife on his left thumb.  He further deposed
that Pw.1 raised cries that the accused was killing the deceased and thereupon
he along with  Pw.3 and Nalla Appa Rao ran to the place and by that time, the
deceased fell down on the ground in unconscious state and that the accused went
away on his cycle by keeping the knife on the carriage of his cycle towards
Modern Caf.  It is also his case that then they shifted the deceased to the
Government hospital where the doctor after examining the deceased declared that
the deceased was brought dead.  He identified the knife as M.O.1.
Pw.5 Paradesi Krishna is not an eye witness.  However he deposed that on the
next day morning at about 7.30 a.m. he did not find the knife which was used for
cutting watermelons on his cart and that he identified the knife as M.O.1.
Pw.6 Patyala Bhaskararao is the President of the fruit vendors association
during the relevant period.  According to him, on the date of incident while he
was sleeping in his house at about 3 a.m. Pw.1 came to his house and informed
him that some quarrel was taking place among the members of their association
near Vijaya Talkies Centre.  He further deposed then he went to the house of
Boddu Saibaba (Pw.7) and he along with Pw.7 went to Vijaya Talkies Centre and
there they came to know through Pw.3 that the deceased was shifted to the
hospital and then they went to the Government hospital and that the doctor
informed them that the deceased died and by that time it was 5 a.m.  Then he
along with Pw.7 went to the police station and on the information furnished by
Pw.1 got prepared the report in Ex:P.1 by Pw.7 and presented the same to the
police.
Pw.7 Boddu Saibaba deposed that on the date of incident at about 11 p.m. while
he was at his house Pw.6 came to his house and informed that the deceased was
stabbed by somebody and that he was taken to the hospital, then he along with
Pw.6 went to the hospital on his motor cycle and that Pw.1 was present in the
hospital and by that time they enquired the persons gathered at the hospital as
to what happened and then prepared the report as per the information furnished
by Pw.1and at the request of Pw.6 he drafted the report Ex:P.2.
Pw.8 Pechetti Venkatalakshmi is the wife of the deceased who deposed that after
coming to know of the incident, she went to the hospital and saw the dead body
of the deceased in the hospital.
Pw.9 Vujjina Pardhasaradhi is the photographer who as per the instructions from
the Inspector of Police had taken the photographs of the scene of offence and
the dead body of the deceased.
Pw.10 Goparaju Subbarao the V.A.O. of Tadepalligudem was present when the  
Investigating Officer observed the scene offence at Satyanarayana Swamy Temple
along with one Vinod Kumar and Manohar and that he signed the observation report
prepared at the scene of offence.  He is also a witness at the time of inquest
held over the dead body of the deceased in the hospital.  He is also a witness
at the time of arrest of the accused.  He deposed that the accused made a
confessional statement and lead them to Eluru Canal and picked up M.O.1 and the
police recovered the same.  He has also deposed that the accused lead them to
his house and produced M.O.2 blood stained shirt.
Pw.11 Dr.M.Padma is the doctor who conducted post mortem examination over the  
dead body of the deceased and found the following injuries:
1. An elliptical shaped stab injury on the left side of the chest 2x1x4 inches
depth.
2. An incised wound 1 1/2 inch x 1/2 inch over the scalp.
3. An incised wound 3 x 1 inches on the scalp.
4. An incised wound over left cheek 3 x 1/2 inch.
5. An incised wound 3 x 1 inches on the left side of the angle of the mouth.
6. An incised wound 4 1/2 x 1/8 inches over right cheek.
7. An incised wound 1 1/2 x 1/8 inches on the right side lower jaw.
8. An incised wound 2 x 1/4 in behind the right ear.
She opined that the cause of the death of the deceased was due to shock and
hemorrhage due to the injury to the heart by a sharp edged weapon and that the
injuries are possible with M.O.1 knife.  Ex: P.10 is the Postmortem Certificate.
Thus the evidence of Pw.11 proves that the death of the deceased is homicidal
death.
Pw.12 P.T.K.Devika Rani is another doctor who examined Pw.1 at 1.10 a.m. on
15.4.2000 and found one incised wound 1 1/2 x 1/2 1/4 inch on the left thumb of
Pw.1 and he opined that the said injury found on Pw.1 could be caused by
M.O.1.Thus, the evidence of Pw.12 also proves that Pw.1 sustained injury on the
intervening night of 14/15th April, 2000.
The stand of the accused is that he is innocent and that he is unjustly
implicated in this case.  It was suggested to Pws 1,3 and 4 that there was
bitter enmity between them and the accused. 
Now we have to see
whether the evidence of Pw.1,3 and 4 who claims to have 
witnessed the incident is reliable and 
whether the prosecution has suppressed
the earliest version as argued by the learned Counsel for the accused and
whether the scene of offence has been shifted and 
whether the injuries on the
deceased are possible with M.O.1 knife and 
whether the grain can be separated from the chaff.  
A reading of above evidence prima facie gives an impression
that the evidence of Pws 1,3 and 4 can be accepted.  But a close scrutiny of
entire evidence creates a reasonable doubt about their version and genesis of the prosecution case.
 In the instant case, Pw.1 admitted in his cross-examination that by the time
they shifted the deceased to the Government hospital, Tadepalligudem, it was midnight and the police came to the hospital by 12.45 hours.  
The prosecution
case is that Pw.6 presented Ex:P.2 report at about 1.30 a.m. on the intervening night of 14/15.4.2000 and that the Head Constable 1184 received hospital intimation by 1.30 a.m. 
Ex:P.2 original FIR was received by the J.F.C.M. Tadepalligudem at 7.30 a.m. 
Admittedly, the hospital intimation is not exhibited
by the prosecution though the same is available with the postmortem certificate
in the file.
 Now it has to be seen
whether Ex:P.2 was presented at the police
station by 1.30 a.m. on that day or whether it was brought into existence during the course of investigation.  
The evidence on record shows that it was brought
into existence during the course of investigation therefore it cannot be treated
as FIR.  
According to Pw.6, on the intervening night of 14/15.4.2000 while he
was sleeping in his house,  Pw.1 came to his house and informed him that some 
quarrel was talking among the members their association near Vijaya Talkies
Centre and then he along Pw.1 went to Boddu Saibaba (Pw.7) and they all went to
Vijaya Talkies Centre where they had learnt that the deceased was shifted to the
hospital through Pw.3, then they reached the hospital and it was 5 a.m. by then.
He further stated that he along with Pw.7 went to police station Tadepalligudem
and there he got prepared the report Ex:P.2 through Pw.7 and presented it to the
police.
The specific version of Pw.6 is that Ex:P.2 was got drafted at the
police station at 5.30 a.m.
He admitted in his cross-examination that Pw.7
Saibaba contested to the post of Chairman of Tadepalligudem Municipality and
that he is running a Bar at Tadepalligudem.
Pw.6 further stated that he used to
inform the affairs of the association to Pw.7 and therefore he, himself and Pw.1
went to the house of Pw.7 and informed about the quarrel that took place between
the members of their association during that night.
In his cross-examination
Pw.6 admitted that they came to the Center at about 3 or 3.30 a.m.
The specific
case of Pw.6 is that Ex:P.2 report was lodged at 5.30 a.m.  Thus the above admission of Pw.6 goes to show that no report was drafted till 5.30 a.m.
        Pw.1 admitted that the police came to the hospital at about mid night and
even the case of the prosecution is that the police received the hospital intimation at about 1.30 a.m. 
 It has to be seen that the distance between the
scene of offence and the Government hospital is 1/2 KMs and the distance between
Government hospital and police station is 1/4 KMs.  Pw.3 also admitted that
while he was in the hospital, police came there at about 1 a.m. and that he was
in the hospital till 1.30 a.m.  
Pw.1 further admitted that after the police came
to the hospital i.e. at about 12.45 p.m. he was enquired and his statement was reduced into writing but his signature was not obtained on it.  
It is surprising
to note that when the injured Pw.1 was very much available in the hospital and
when the SI of police enquired with him and recorded his statement FIR was not
issued on the basis of the said statement of injured eyewitness. It is not known what prevented the police from registering a case basing on the statement of Pw.1.
It has to be seen that Pws 3 and 4 who are said to be the eyewitnesses
were also available in the hospital but the police did not take a report either
from Pw.3 or from Pw.4.  
Pw.4 categorically admitted in his cross-examination
that he himself and Pws 1 and 3 and Nalla Appa Rao stated to the police, in the
hospital, as to what had happened.  
Thus the specific information about the
occurrence had been furnished by the injured eyewitness and other eyewitnesses
but no FIR was issued.
        In case between Ramesh Babu Rao Devaskar vs. State of Maharastra [2008 (2)  
ALT  (Cri) 1] the Hon'ble Supreme Court held as follows:
"First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence.  The reason for
insisting of lodging of First Information Report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eye-witnesses.  Where the   
parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of First Information Report always considered to be vital."

        Lodging of FIR is very important step, which sets the investigating agency
into motion for prosecuting the persons responsible for the commission of an
offence.
 In the case between B.Subba Rao vs. Public Prosecutor, High Court of
A.P.2 and in the case between Hazari Lal vs. The State (Delhi Admn.,)3, the
Supreme Court held as under: 
"Where the original FIR has been suppressed and in its place some document has  been substituted and the original diary was not produced in the court, the entire prosecution case becomes suspicious". 
In the case of State of A.P. Vs. Punati Ramulu 1 the Hon'ble Supreme Court held
as under:
"When the Investigating Officer has deliberately failed to record the FIR on
receipt of information regarding commission of a cognizable offence and had
prepared FIR after reaching the spot after due deliberations, consultations ad
discussions, the conclusion becomes inescapable that the investigation is
tainted and it would, therefore, be unsafe to rely upon such tainted
investigation, as one would not know where the police officer would have
stooped to fabricate the evidence and create false clues."
        Section 154 Cr.P.C. mandates that every information relating to the
commission of a cognizable offence if given orally to an Officer In charge of
Police Station, shall be reduced to writing by him or under his direction and
when it is given in writing, the substance thereof shall be entered in a book to
be kept by such Officer in such form as the State Government may prescribe in
this behalf.
 Prompt first information eliminates the chances of embellishment and false
implication of accused persons.  It diminishes the chances of tutoring the
informant.  Prompt first information gives assurance of the correctness of the
prosecution version.  When the first information report is not issued at the
earliest point of time and the Police Officer after visiting the scene of
offence and after making some investigation registers a case certainly it causes
delay and ultimately it may result in disbelieving the version of the witnesses,
whose evidence is otherwise reliable.  The delay may defeat the justice.  The
deliberate delay may result in burying the truth.  Where in a case FIR is not
issued on the information furnished by an eyewitness.  The spontaneity is lost
and if the FIR is issued after 5 or 6 hours on the ground of ascertaining the
fact, the informant may not be able to explain the delay and his version may be
viewed with suspicious eye.  Therefore the Section 154 Cr.P.C. mandates the
necessity of registering the case as soon as the information of a cognizable
offence is furnished.  The spontaneous version gives an assurance that it may be
true.  If the first information report is an outcome of investigation, the same
cannot be treated as FIR and it always create a reasonable doubt about the
prosecution version.
From the evidence on record, it is clear that the FIR was not at all prepared at
the time alleged by the prosecution i.e. at about 1.30 a.m. 
 In deed, in the
instant case, the FIR was not the basis for the investigation as it should be.
From the above discussion and from the facts and circumstances, the only
conclusion that can be drawn is that Ex:P.2 was prepared after the police
started investigation and therefore, Ex:P.2 is hit by Section 162 Cr.P.C.
        The earliest version of the case without any embellishment and
improvements should be placed before the court, which inspires confidence of the
court.  Since the earliest version is suppressed in this case, the only
conclusion that can be drawn is that after due deliberations, the FIR was
brought into existence to suite the case of the prosecution.  It has to be seen
that the police waited till the arrival of Pw.6 who is the President of the
Sangham.  The evidence of Pw.6 reveals that he did not give any report to the
police but went to Pw.7 who contested for the post of Chairman of Tadepalligudem
Municipality and who is running a Bar and got Ex:P.2 drafted through Pw.7.  Thus
it is clear that only after consulting Pw.6 and Pw.7, Ex:P.2 was brought into
existence. Therefore, it is clear that there no spontaneous report in this case.
When the FIR is brought into existence after due consultations, it gives scope
for naming the interested persons as eyewitnesses and may also give scope for
implicating innocent persons in a criminal case. In this case, Pw.1 is the
injured witness and  Pws 3 and 4  are the eyewitnesses, who witnessed the
incident.  Their evidence which may otherwise inspire confidence and which
appears to be trustworthy, has to be looked suspiciously, in view of the above-
mentioned lacunae in the prosecution case.  Admittedly, the name of one Valli
Sreenu was shown as an eyewitness but subsequently it was struck off.  This
supports the allegation of defence counsel that the names of witnesses were
chosen and mentioned in Ex:P.2 who were obliged to prosecution 
        The second important circumstance against the prosecution is that
according to the prosecution, the incident occurred near Satyanarayana Swamy 
Temple, Tadepalligudem.  Vijaya Talkies is not shown in the rough sketch
prepared by the police.  Therefore, it is not clear as to what is the distance
between Vijaya Talkies and Satyanarayana Swamy Temple.  Pw.3 admitted that he   
was selling fruits near Vijaya Talkies soon before coming to the scene of
offence, which is near Satyanarayana Swamy Temple.  This means, Vijaya Talkies  
Centre is at some other place.  According to Pw.6, Pw.1 came to his house at
about 3 a.m. and informed that some quarrel was taking place among the members
of their association and asked him to come to Vijaya Talkies centre where the
quarrel had taken place and then he along with Pw.1 went to the house of Pw.7
woke him up and they all went to Vijaya Talkies centre.  His further evidence is
that Pw.3 informed about the incident and also told that the deceased was
shifted to the hospital and by the time they went to the hospital, the deceased
died.  The above statement of Pw.6 creates a doubt as to whether the scene of
offence has been shifted from Vijaya Talkies Center to the place near to
Satyanarayana Swamy Temple.  In case of shifting of scene of offence, the
prosecution case has to be thrown out, the same being highly doubtful.
The next important circumstance in this case appears to be the nature of
injuries received by the deceased and the description of M.O.1.  Pw.1 admitted
that M.O.1 has sharp edge on one side and the other side is blunt and its tip is
broken.
        In the above circumstances, the evidence of Pw.11 the doctor who conducted
postmortem assumes importance.  She admitted that the sharp edged weapon can  
only cause clean-cut edges and that injury No.1 had clean-cut edges.  She
further admitted that for causing injury No.1 the tip of the weapon need not be
sharp but the said weapon should have sharp edges on either side.  The doctor
admitted that only one side of M.O.1 is sharp. This circumstance also creates a
doubt as to whether the injuries on the deceased were caused with M.O.1 and
whether the prosecution is coming with true genesis of the case.
The learned Counsel for the accused vehemently argued that even in the hospital
intimation, it is mentioned that the scene of offence is at Vijaya Talkies and
that the deceased was taken to the hospital by one Govind Rao and not by Pws 1,3
or 4.  It is also her submission that the hospital intimation contained the
particulars as to 'brought by whom', 'the place of incident', 'whether caused by
a known or unknown offender'.  Admittedly, the hospital intimation is not marked
in this case and this circumstance also creates a doubt with regard to the
genesis of the case.
        In the hospital intimation, normally the above-mentioned particulars would
be mentioned.  There appears to be some force in the submission of the learned
Counsel for the accused that since either the name of Pw.1 or the names of Pws 3
and 4 are not shown as the persons who brought the deceased to the hospital, the
hospital intimation appears to have been suppressed.  Similarly the place where
the incident seems to have occurred is shown as something different in the
hospital intimation. A perusal of the hospital intimation shows that the name of
one Govind Rao is shown as the person who had brought the deceased to the
hospital and the scene of offence is shown as at Vijaya Takies. In the
circumstances, the hospital intimations appear to be vital documents and the
contention of the learned Counsel for the accused cannot be brushed aside.  It
has to be seen that according to Pw.1 he along with others had taken the
deceased in a rickshaw to the hospital.  The head of the deceased was supported
by him.  The deceased had sustained cut injury on his face.  Pw.1 himself had a
cut injury.  In the circumstances, his clothes must have been stained with
blood, because he had taken the deceased to the hospital which is at a distance
of 1/4th KM from the scene of offence.
        Admittedly, Pws 1,3 and 4 did not give any report to the police.
Admittedly no FIR was issued on the basis of the statements given by Pws 1,3 and
4.  According to Pw.5, he had witnessed the occurrence, but Ex:P.1 shows that he
stated before the police that he is an eye witness to the occurrence.  Thus, the
allegation that only selected persons have been chosen as eyewitnesses lends
support from the above-referred circumstances.  Admittedly, Pw.1 is residing 1/2
KMs from the scene of offence and Pws 3 and 4 are residing at a distance of
1/4th KMs from the scene offence.  The alleged incident took place at about
11.30 p.m.  Normally, the presence of the witnesses at the scene of offence at
the relevant time appears to be doubtful. There is another circumstance,
according to Pw.14, he had seized chappals of the accused from the scene of
offence.  No efforts were made to connect the accused with those chappals.
        There are other contradictions in this case. According to Pw.1, Pw.6
himself came to the hospital and he informed Pw.6 about the occurrence but
according to Pw.6, Pw.1 came to his house at 3 a.m. (early morning) and informed
him about the incident.  According to Pws, 1,3 and 4, the incident occurred near
Satyanarayana Swamy Temple but according to Pw.6, Pw.1 informed him that the  
incident occurred at Vijaya Talkies and then he along with Pw.7 went to Vijaya
Talkies where Pw.3 informed them that the deceased was shifted to the Government
hospital, Tadepalligudem.  According to Pw.6, himself and Pw.1 went to the house
of Pw.7 but according to Pw.1 and Pw.7, Pw.1 did not accompany Pw.6 to the house
of Pw.7 and informed about the incident.  According to Pw.6, he was informed
about the incident at about 3 a.m. that some galata was taking place at Vijaya
Talkies Centre, whereas Pw.7 says that Pw.6 came to his house at about 11 p.m.
and informed about the incident and then himself and Pw.6 went to the hospital
where Pw.1 was present and he enquired Pw.1 as to what had happened.  Thus, it
appears that there are material contradictions in the evidence of prosecution
witnesses with regard to their movements immediately after the incident.  As far
as recovery of M.O.1 is concerned, Pw.10 the mediator himself admitted that the
place where from M.O.1 was taken out is visible from the main road.  Pws 3 and 4
admitted that M.O.1 was shown to them by the police in the police station. Pw.10
admitted that wooden portion of M.O.1 is new one.  According to Pw.5 he was
using M.O.1 since two years prior to the date of incident.   According to Pw.14
the Investigating Officer that he visited the house of the accused on 15.4.2000
and noticed no incriminating material in the house of the accused.  However,
Pw.15 another Investigating Officer says that on 19.4.2000 the accused led them
to his house and produced blood stained shirt M.O.7.  According to Pw.10, the
blood stained shirt was hanging to a hanger in the house of the accused.  It
appears to be unnatural and improbable to say that the accused would keep the
blood stained shirt to a hanger even after four days after the date of offence,
though the police visited his house three days before the seizure of M.O.7 from
his house.  The G.D. entry, which the police should have made after receipt of
hospital intimation, is also not produced before the court.  All these
circumstances create a reasonable doubt and benefit of doubt should go to the
accused.
It is settled law that even if two views are possible on analyzing the
evidence, the version favorable to the accused should be adopted. In the case
between Shingara Singh vs. State of Haryana (2004 Crl.L.J. 828), the Hon'ble
Supreme Court observed as follows: "Where two views are reasonably possible on 
the basis of the evidence on record, the one that favors the accused must be
accepted". 
The learned Sessions Judge had not considered the above facts and 
circumstances and erred in convicting the accused.
In view of above discussion, we are of the view that it is not safe to convict
the accused basing on the evidence of Pws 1,3 and 4.  Therefore, the judgment of
the lower court has to be aside.
        In the result, the appeal is allowed setting aside the conviction and
sentence passed by the lower court against the appellant.  The appellant shall
be set at liberty forthwith if he is not required to be detained in any other
case.

?1 1993 Cri.L.J. 3440


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