presence at the scene of offence,=deceased took cool drink in his shop and, thereafter, the incident in question took place. If that is so, the post-mortem certificate issued by PW14 vide Ex.P7 should give an indication of the presence of some liquid in the stomach, but the said report is otherwise. Therefore, the inconsistencies in the evidence of PW1, PW2, PW6 and PW7 throw any amount of doubt with regard to their presence at the scene of offence, at the time of incident.;presence of street lights = Ex.P5 is the scene observation report, which was prepared by the investigating officer in the presence of PW13. This document does not show existence of street lights at the scene. Even PW13 and PW17 did not clearly say about the existence of street lights or electrical poles at the scene of offence, which create a doubt as to the presence of street lights and PW1 and PW2 witnessing the incident with the help of street lights.;recovery of M.O.1 = On one hand, PW1 and PW2 deposed that M.O.1 was taken away by the accused along with him after attacking the deceased, but some speak about recovery of M.O.1 at the scene pursuant to the arrest of the accused. In view of the above, the recovery of M.O.1 at the instance of A1, cannot be believed. Apart from that, there is no evidence that the blood found on M.O.1 is that of the deceased, leave alone matching of blood group.- The conviction and sentence recorded against the appellant/accused No. 1 in the Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012 on the file of the III Additional Sessions Judge, Guntur, for the offence punishable under Section 302 I.P.C., is set- aside and he is acquitted for the said offence
AP HIGH COURT AMARAVATHI
1
THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN
Criminal Appeal No. 392 of 2014
JUDGMENT: (Per Hon’ble Sri Justice C.Praveen Kumar)
Heard Sri. Chandra Sekhar Ilapakurti, learned Counsel
appearing for the Appellant and Sri. S. Dushyanth Reddy,
Additional Public Prosecutor, through Blue Jeans video
conferencing APP and with their consent, the appeal is disposed
of.
1) Accused No. 1 to 4 were charged for the offence punishable
under Sections 302 read with 34 of Indian Penal Code, 1860
[‘I.P.C.’] for causing the death of one Marri Veeranarayana
[‘Deceased’] on 08.06.2011 at about 12.30 a.m. By its
Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012,
the III Additional Sessions Judge, Guntur, while acquitting
Accused No. 3 and 4 for the offence punishable under Section
302 read with 34 I.P.C., convicted Accused No. 1 for the offence
punishable under Section 302 I.P.C., and sentenced him to
suffer imprisonment for life and to pay fine of Rs.1,000/-. The
case against Accused No. 2 was abated as he died on
18.06.2013.
2) The facts disclose as under:
a) PW1 is the father of the deceased, while PW2 is the
mother. PW8 is the wife of the deceased. There were
2
disputes between the deceased and A1 and A2 with regard
to accused playing songs loudly in their auto. A quarrel
ensued on 01.01.2011, in which the accused and the
deceased received injuries. Accordingly, the deceased was
admitted in N.R.I. Hospital, but, however, no case was filed
in respect of the said incident. Keeping in view the above
incident, it is said that the accused hatched a plan to do
away with the deceased. It is further stated that, in the
month of April, 2011, the deceased along with his friends
quarrelled with A4 at Surya Wines, Chinakakani, in which
A4 received injuries.
b) On 08.06.2011 at about 10.00 P.M., PW1 and PW2 came
to know that a quarrel was going on between A1, A2 and
the deceased at a wine shop. At about 11.30 P.M., PW1
and PW2 came on to the main road in search of their son
and waited near the Arch for half-an-hour. It is said that at
12.30 midnight, the deceased went to the cool drink shop
of PW7, consumed cool drink and left on his motorbike. At
that time, PW7 claims to have noticed an auto standing by
the side of his shop in which A1, A2 and A4 were present.
The said auto followed the deceased.
c) The deceased came on his motorcycle from the petrol bunk
side and after moving ahead near the crossing of NH5, an
auto came from Vijayawada side and dashed the
motorcycle on which the deceased was going to his village.
3
As a result of the impact, the deceased fell down on the
road. Thereafter, A1, A2 and another person came out of
the auto. A1 beat the deceased with a cement stone, while
A2 and another person held the hands and legs of the
deceased. A3 also got down from the auto along with A1
and A2. It is said that PW1 and PW2 went to the rescue of
their son, but the three accused threatened them. At that
time, one Thiruveedhula Naga Bhuyshanam [NE] and
Kuraganti Rambabu [PW6] came to the scene. Two more
persons, who are coming from Vijayawada side also came
there on hearing cries of PW1 and PW2. On seeing them,
A1 to A3 ran away by taking cement stone, leaving the
auto at the scene. PW1 and PW2 rushed towards their son,
who was lying on the road and within five minutes he died.
Thereafter, the relatives of PW1 and PW2 came there and
PW1 along with them went to the police station and lodged
a report with PW16 –Sub-Inspector of Police, who
registered a case in Crime No. 76 of 2011 for the offence
punishable under Section 302 read with 34 I.P.C. Ex.P11
is the First Information Report. Further investigation, in
this case, was taken up by PW17, who on receipt of the
F.I.R. at 3.00 A.M., visited Mangalagiri Rural Police
Station, obtained a copy of the First Information Report
and took up investigation.
4
d) PW17 along with PW16 proceeded to the scene of offence,
which is in-front of Raj Kamal Agro Model Farm at
Chinakakani Village. He noticed the dead body lying on the
divider. A motorcycle and an auto were present near the
dead body. PW17 examined PW1 and PW2 and recorded
their statements. After moving in and around Chinakakani
and Kaza villages to enquire about the culprits, he
returned back to the scene at 6.30 A.M. and in the
presence of PW13, inspected the scene of offence. During
observation, he seized blood stained earth and controlled
earth and the auto of accused. M.O. 2 to M.O. 5 are the
articles seized at the scene. Ex.P5 is the observation report
and Ex.P12 is the rough sketch of the scene. He also got
photographed the scene, which are placed on record as
Ex.P13. Thereafter, in the presence of PW13, he conducted
inquest over the dead body under Ex.P6. During inquest,
he examined PW8 and others and recorded their
statements, and also seized M.O.6 to M.O.8. Thereafter,
the dead body was sent for post-mortem examination.
e) PW14 - the Civil Assistant Surgeon, in Government
General Hospital, Mangalagiri, conducted autopsy over the
dead body and issued Ex.P7 post-mortem report. He
noticed about 11 injuries on the body of the deceased and
the skull was open. According to him, the cause of death
5
might have been due to head injury with contusion of
brain and large hemotoma.
f) PW17 who continued with the investigation arrested the
accused on 27.06.2011 in the presence of PW15 and
others. He interrogated the accused separately and
recorded their confessions. Basing on the confession made
by A1, they reached the compound of Raj Kamal Agro
Model Farms and a blood stained concrete stone is said to
have been discovered. M.O.1 is the cement stone. The
same was seized under Ex.P9 [Mahazar]. After collecting all
the necessary documents, a charge-sheet came to be filed,
which was taken on file as P.R.C. No. 33 of 2011 on the file
of Additional Judicial Magistrate of First Class,
Mangalagiri.
3) On appearance of the accused, copies of documents as
required under Section 207 Cr.P.C., came to be furnished. Since
the case is triable by Court of Sessions, the matter was
committed to the Sessions Court under Section 209 Cr.P.C.
Basing on the material available on record, charges as referred
to above came to be framed, read over and explained to the
accused, to which, the accused pleaded not guilty and claimed
to be tried.
4) In support of its case, the prosecution examined PW1 to
PW17 and got marked Ex.P1 to Ex.P13, beside marking MOs. 1
to 8. Out of 17 witnesses examined by the prosecution, PW3,
6
PW5 and PW9 did not support the prosecution case and they
were treated hostile by the prosecution. After completion of
prosecution evidence, the accused were examined under Section
313 Cr.P.C. with reference to the incriminating circumstances
appearing against them in the evidence of prosecution
witnesses, to which they denied, but, however, did not adduce
any evidence in support of their defence.
5) Relying upon the evidence of PW1 and PW2, coupled with
the enmity between the accused and the deceased, the learned
Sessions Judge convicted A1. Challenging the same, the present
appeal came to be filed.
6) Sri. Chandra Sekhar Ilapakurti, learned counsel appearing
for the appellant submits that there is any amount of doubt with
regard to PW1 and PW2 witnessing the incident. He further
submits that Ex.P1, which is said to have been lodged by PW1 is
bereft of details, which are now mentioned by PW1 while giving
evidence in court. Apart from that, when the quarrel was at the
wine shop, there was no necessity for PW1 and PW2 to stay at
the arch awaiting for the arrival of the deceased.
(ii) The learned counsel further submits that PW1 and
PW2 claims to have witnessed the incident under the
illumination of lights, but, the mediator report and scene of
offence does not anywhere indicate existence of any lights at the
scene. Since, the incident took place in the dead of night,
possibility of they identifying the appellant, even assuming to be
7
present, at the scene, is highly doubtful. He further submits that
the medical evidence is contrary to ocular evidence, and, as
such, there is any amount of doubt with regard to the timing of
the incident. Apart from that, the learned counsel would
contend that when the evidence of PW7 is to the effect that the
accused took cool drink at his shop at 12.30 midnight,
possibility of the incident happening prior to that time is
impossible, more so, having regard to the contents of the
stomach, as spoken to by the post-mortem doctor. Further, the
weapon, which is alleged to have been used, is a cement stone,
which could not have carried with them by the accused, leaving
the auto. Hence, the recovery of M.O.1 –cement stone at the
instance of the accused is doubtful, more so, when there is a
contra version from other prosecution witnesses.
7) The same is opposed by the learned Public Prosecutor
contending that the evidence of PW1 and PW2 who are the eye
witnesses to the incident cannot be disbelieved, merely because
Ex.P1 is silent on some aspects. In other words, his argument
appears to be that, the First Information Report is not a
encyclopaedia, which should contain all the details.
(ii) Coming to the presence of PW1 and PW2 and they
witnessing the incident, the learned Additional Public Prosecutor
would submit that they being known to the A1 and A2 even prior
to the incident, identifying them in the night cannot be said to
be improbable. The discrepancies, if any, pointed out with
8
regard to the timing of the incident are trivial in nature, which
do not warrant disbelieving the prosecution story. According to
him, the conviction and sentence imposed by the trial court
warrants no interference.
8) The point that arises for consideration is, whether the
prosecution was able to bring home the guilt of the accused
beyond reasonable doubt?
9) In order to appreciate the rival contentions, it is just and
proper to refer to the evidence of some of the prosecution
witnesses.
10) PW1 in his evidence-in-chief deposed that, on the date of
incident, at about 10.00 P.M., he came to know that A1 and A2
quarrelled with his son [deceased] at a wine shop. At about
11.30 P.M., PW1 and PW2 came on to the main road in search of
their son [deceased]; reached near an arch on the main road and
waited there for half-an-hour. At that time, their son [deceased]
came on a motorcycle from petrol bunk side and after the
crossing on NH5, an auto came from the opposite side and
dashed the motorcycle, as a result of which, the deceased fell
down on the road. Then, A1, A2 and another person got down
from the auto. A1 is said to have beat the deceased with a
cement stone [M.O.1], while A2 and another person caught hold
of the hands and legs of the deceased. According to the
prosecution, the incident took place because of earlier disputes
9
between both the groups, in which the deceased as well the
accused received injuries and were admitted in N.R.I. Hospital.
11) At this stage, it would be appropriate to refer to the crossexamination of PW1, which is as under:
“It is true in Ex.P1 name of A3 is not given. It is true I did not
give the name of A3 before police and also I have not given the
description of third person who came along with A1 and A2 in
auto in Ex.P1 and also to police. It is true I did not mention in
Ex.P1 that I can identify the 3rd person and no test of
identification parade is conducted in respect of 3rd person.
Ex.P1 was written by a constable.
It is true I have not mentioned in Ex.P1 that there are lights on
either side of the road and I saw the incident in a illumination
of lights and I have not stated same to police. It is true I have
not mentioned in Ex.P1 that immediately after the incident my
relatives came to the scene of offence and I went along with
them to the police station and I have not stated the same
before the police. I cannot give the number of auto and motor
cycle i.e., MO2 and 3. It is not true to suggest that the cement
stone which I stated is not MO1. It is true I have not mentioned
in Ex.P1 that I was standing along with LW2 and after 5
minutes I went to the place where my deceased son was lying
on the road margin. It is not true to suggest that I did not refer
the weapon of offence as cement stone in Ex.P1. It is true that I
did not mention the names of LW5 and LW6 and I did not state
the names of LW5 and 6 before the police. It is true I did not
mention the names of other witnesses in Ex.P1. It is true that I
did not state in Ex.P1 that I and LW2 reached near the Arch on
the main road and waited for half-an-hour. It is true I did not
mention in Ex.P1 report that deceased came on motor cycle
from the side of petrol bunk. It is not true to suggest that
specifically I did not state in Ex.P1 that the deceased was
coming from Guntur side and the auto is coming from
Vijayawada side.”
10
12) From the above admissions, it is very much clear that
Ex.P1 is silent on many crucial aspects. Not only with regard to
the name but also participation of one of the assailant;
witnessing the incident in the illumination of street lights; PW1
and PW2 proceeding near to the arch and waiting there for halfan-hour; and the deceased coming on a motorcycle from the
petrol bunk side.
13) PW2 is the mother of the deceased, whose evidence though
toes in line with the evidence of PW1, also states that she saw
the incident in the illumination of lights situated on either side
of the road. But in the cross-examination, she admits that, she
did not state to police that she saw the incident in the
illumination of lights and that she did not state to police that
she and PW1 went to the arch on the main road. It would be
appropriate to extract the relevant portion from the crossexamination of PW2.
“It is true I did not state to the Police that I and PW1 went near
the Arch on main road. It is true I did not state to the Police that
I saw the incident in illumination of lights.”
14) From the evidence of these two witnesses, it is very clear
that her version in examination-in-chief, namely, that on
receiving information about a quarrel between the accused and
deceased near wine shop, proceeded towards arch and waited
there for half-an-hour are missing not only in the First
Information Report given by PW1 but also in the earlier
statement recorded by the police during the course of
11
investigation. Therefore, the version of PW1 and PW2 that they
saw the incident while standing at the arch, has to be viewed
with suspicion.
15) The prosecution tried to rely on the evidence of PW4 to
show that PW1 and PW2 were present at the scene. A perusal of
the evidence of PW4 would show that on 08.06.2011 at about
12.30 A.M., while he was proceeding to Chinakakani from
Guntur, he found the deceased lying on the middle of the
highway and PW1 and PW2 present by deceased side. He also
observed a blood stained cement stone lying beside the
deceased, a motorbike and an auto at that place. A reading of
the evidence of PW4 shows as if M.O.1-cement stone alleged to
have been used by A1 was present by the side of the deceased,
which is contrary to the evidence of PW1, who in his evidence
deposed stating that A1 carried away M.O.1 cement stone along
with him. Further, his evidence does not indicate PW1 and PW2
being present at the time of attack.
16) PW6 is a resident of Kaza Village, who in his evidence
deposed that, he knows PW5 and about one and half year ago he
and PW5 went to Vijayawada on a motorcycle to purchase chill
seeds and stayed at Mangalagiri for about one and half hour.
When PW6 and PW5 reached the road near Chinakakani, they
heard cries. PW6 went there and saw A1 and A2 hitting the
deceased with a stone. He identifies A1 as Balaji and A4 as
Nagaraju [incorrect]. But, however, he moves closely to the place
12
where they are standing and identifies A1, A2 and third person
as A3. He in his evidence deposed that when he and PW5 tried
to rescue the deceased, A1 to A3 threatened them. He also
speaks about the presence of PW1 and PW2.
17) In the cross-examination, PW6 categorically admits that
108 ambulance came to the scene of offence to a call made by
somebody and the persons who came with the ambulance
declared the deceased dead. But, one fact that is to be noted
here is that, neither PW1 nor PW2 deposed about the coming of
ambulance to the scene. Further, PW6 admits that a panchayat
was held relating to a theft of a motor-pump, in which elders
made him to pay Rs.10,000/- to one Balineni Bhaskara Rao. He
further admits that the Sub-Inspector of Police examined him at
the scene of offence on the next day morning at 11.30 A.M.
18) The evidence of this witness has to be viewed with
suspicion; firstly, for the reason that the village panchayat found
him guilty of committing theft of a motor-pump and he was
asked to pay Rs.10,000/- to one Balineni Bhaskara Rao;
secondly, he claims to have gone to Vijayawada to purchase
chilli seeds and after reaching Mangalagiri, he and PW5 waited
for one and half hour and during that period PW6 claims to have
seen the incident. But, PW5 did not support the version of PW6
with regard to witnessing the incident. On the other hand, his
version is that by the time they reached Mangalagiri, they only
noticed the dead body of the deceased lying on the road.
13
19) One another fact, which requires to be noted here is that
the evidence of PW6 is silent with regard to the illumination of
lights on either side of the road. Being a stranger, he could have
identified the accused in the darkness, more so, in the court,
when no test identification parade was held. Therefore, PW6
cannot be said to be a wholly reliable witness, having regard to
the contents of Ex.P1 and the evidence of PW1 and PW2, which
we have referred to earlier.
20) Coming to the evidence of PW7, he in his evidence deposed
that, at about 12.30 midnight the deceased came to his cool
drink shop, consumed cool drink and left on his motorbike. He
claims to have seen an auto standing by the side of his shop
with A1, A2 and A4 in it, which followed the accused. After
sometime, he heard a big noise from the arch side and when he
went to the place, noticed PW1 and PW2 present and A1 hitting
the deceased with a stone while A2 was present with A1. He
claims to have gone to the rescue of the deceased, but A1
threatened to kill him also. After sometime, two people from
Kaza Village came to the scene who also tried to rescue the
deceased. However, on seeing the people gathered at the scene,
the accused ran away.
21) The evidence of PW7 assumes great significance as the
learned Public Prosecutor relied upon his evidence to
corroborate the version of PW1 and PW2. PW7 in his crossexamination admits that there was a faction in his village and
14
his father contested for the post of President of the village, lost
the election and settled in Chinakakani village. He further
admits that the arch where the incident took place is situated at
a distance of half a kilometre from the petrol bunk, which is
situated towards Guntur side. It would be appropriate to extract
the same, which is as under:
“My native place is Neerukoknda Village. It is a faction village.
My father contested as President of our village and he lost the
election. It is true, due to faction in our village I left the village
and settled at Chinakakani village. It is true the petrol bunk is
situated towards Guntur City side. It is true the Arch is
situated half kilometre from the petrol bunk.”
22) From the evidence of this witness [PW7], it is very much
clear that at 12.30 in the midnight, the deceased took a cool
drink and then left on a motorbike. He noticed an auto standing
by the side of his shop, wherein A1, A2 and A4 were present. He
excludes the presence of A4 while giving evidence whose
presence is not spoken to by PW1, PW2 and PW6. According to
him, after the deceased left his shop, he heard a big sound from
the arch side. This arch, according to him is situated at a
distance of half a kilometre from the petrol bunk. This portion of
evidence of PW7 has to be tested with the evidence of PW1, who
in his evidence deposed, that while he and PW2 were waiting
near the arch, the deceased came on a motorcycle from a petrol
bunk side. Though, PW7 did not mention the distance between
his cool drink shop and petrol bunk, but definitely his own
evidence show that his shop is situated towards the petrol bunk
15
and the arch is at a distance of half a kilometre from the petrol
bunk. That being so, PW7 could not have heard the sound of
auto dashing the deceased.
23) Apart from that, the evidence of PW1 and PW2 show that
the auto came from Vijayawada side towards Guntur and
dashed the motorcycle of the deceased, while the evidence of
PW7 is to the effect that after the deceased left, the auto which
was standing by the side of his shop, followed the motorcycle,
meaning thereby that the auto dashed the motorcycle from
behind, which is not the case of the prosecution. Therefore, the
version of PW7 is at total variance with the version of PW1 and
PW2. Further, the evidence of PW7 is to the effect that the
deceased took cool drink in his shop and, thereafter, the
incident in question took place. If that is so, the post-mortem
certificate issued by PW14 vide Ex.P7 should give an indication
of the presence of some liquid in the stomach, but the said
report is otherwise. Therefore, the inconsistencies in the
evidence of PW1, PW2, PW6 and PW7 throw any amount of
doubt with regard to their presence at the scene of offence, at
the time of incident.
24) Apart from the contradictions pointed out in the evidence
of PW1 and PW2 vis-à-vis Ex.P1 report, the argument of the
learned counsel for the appellant, as stated earlier is that these
two witnesses could not have witnessed the incident with the
help of street lights as there are no street lights at the scene.
16
Ex.P5 is the scene observation report, which was prepared by
the investigating officer in the presence of PW13. This document
does not show existence of street lights at the scene. Even PW13
and PW17 did not clearly say about the existence of street lights
or electrical poles at the scene of offence, which create a doubt
as to the presence of street lights and PW1 and PW2 witnessing
the incident with the help of street lights.
25) Insofar as recovery of M.O.1 is concerned, as stated earlier,
there are varying versions about the same. On one hand, PW1
and PW2 deposed that M.O.1 was taken away by the accused
along with him after attacking the deceased, but some speak
about recovery of M.O.1 at the scene pursuant to the arrest of
the accused. In view of the above, the recovery of M.O.1 at the
instance of A1, cannot be believed. Apart from that, there is no
evidence that the blood found on M.O.1 is that of the deceased,
leave alone matching of blood group.
26) For the aforesaid reasons, the Criminal Appeal is allowed.
The conviction and sentence recorded against the
appellant/accused No. 1 in the Judgment, dated 21.03.2014, in
Sessions Case No. 71 of 2012 on the file of the III Additional
Sessions Judge, Guntur, for the offence punishable under
Section 302 I.P.C., is set- aside and he is acquitted for the said
offence. Consequently, the appellant/accused No.1 shall be set
at liberty forthwith, if he is not required in any other case or
17
crime. The fine amount, if any, paid by the appellant shall be
refunded to him.
27) Consequently, miscellaneous petitions, if any, pending
shall stand closed.
_______________________________
JUSTICE C. PRAVEEN KUMAR
_______________________________
JUSTICE B. KRISHNA MOHAN
Date: 03/08/2021
S.M..
18
THE HON’BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON’BLE SRI JUSTICE B. KRISHNA MOHAN
Criminal Appeal No. 392 of 2014
(Per Hon’ble Sri Justice C.Praveen Kumar)
Date: 03/08/2021
S.M.
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