Andhra Pradesh High Court - Amravati
Kovvada Appalanaidu, Viziananagaram ... vs State Of A.P., Rep. By P.P.,Hyd on 10 November, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.KRISHNA MOHAN
Criminal Appeal No.240 of 2015
JUDGMENT :(Per Hon'ble Sri Justice C.Praveen Kumar)
1. A-1 to A-4 in S.C.No.86 of 2012 on the file of I Additional Sessions Judge, Vizianagaram, are the appellants herein. They were tried for the offences punishable under Sections 449, 427 and 302 read with Section 34 I.P.C. Vide judgment dated 18.02.2015, the learned Sessions Judge convicted the accused under all the three counts and sentenced each one of them to suffer Simple Imprisonment for a period of three years and to pay fine of Rs.1,000/- each for the offence punishable under Section 449 I.P.C.; sentenced each one of them to pay fine of Rs.1,000/- each for the offence punishable under Section 427 I.P.C.; and further they were sentenced to suffer imprisonment for life and to pay fine of Rs.3,000/- each for the offence punishable under Section 302 read with Section 34 I.P.C. The substantive sentences were directed to run concurrently.
2. The substance of the charge against the accused is that on 15.1.2012 at Maruvada Kothavalasa Village, the accused trespassed into the house of the deceased, broke open the 2 doors, chased the deceased and thereafter attacked him with crowbars and iron rods causing instantaneous death.
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under :
P.W.1 is the mother of the deceased. P.W.2 is the son and P.W.3 is the sister of P.W.1. P.W.9 is wife of the deceased and daughter of A1. A2 is brother of A1. A3 is brother's son of A1 and A2. A4 is son of A1 i.e., brother-in-law of the deceased. The deceased married P.W.9 about 13 years back which was a love marriage. The said marriage was against the will of A1 to A4, as such all the accused used to threaten the deceased with dire consequences and also used to beat him. However, out of wedlock, the deceased and P.W.9 were blessed with two daughters. About 7 months prior to death of the deceased, A1 to A4 beat the deceased with stout sticks on his head and shoulder in their village. A report was given to the Police, but, however, the case ended in an acquittal. About 7 months later i.e., on the date of incident, the deceased complained to P.W.1 that his grass heap was destroyed and he was murmuring about the same for himself. At that point of time, the residents of the said village, who are shown as L.Ws.5 to 8 and 11 came there and one of them questioned the deceased, on that, the deceased told them that he is not saying anything against any one and went inside. The said persons also left that place. 3
On the same day at 3.00 PM, A1 to A4 came to the house of the deceased along with iron rods and stout sticks. P.W.1, who was standing near the house, claimed to have seen them. On seeing them, the deceased went inside the house and bolted the door from inside. A1 to A4 forcibly broke open the door and went inside. According to the prosecution, the deceased escaped from the back side of the house, but, however, the accused 1 to 4 chased him up to the agricultural field of P.W.8, which is situated on the back side of the house. P.W.1 is said to have followed them and requested them to leave her son, but, to no avail. A1 is said to have beat the deceased with crowbar on left eye and also on left hand; A4 beat the deceased with iron rod on his right shoulder and on his right knee; A2 beat the deceased with a stout stick on his back side; and A3 beat the deceased with a stout stick on his back side and also on the legs. According to P.W.1, the same was witnessed by P.Ws.2, 3 and another. Thereafter, the accused left the scene. P.W.1, who is an illiterate, went to the house of P.W.10 at 9.00 PM and informed him about the incident and requested him to scribe the report. P.W.10 scribed the report to the dictation of P.W.1, on which P.W.1 is said to have affixed her thumb impression.
Later, i.e., on the intervening night of 15/16-1-2012 P.W.1 went to the Police Station along with P.W.10 and presented the report before P.W.14, basing on which, a case in crime No.5 of 2012 came to be registered under Section 302 read with Section 4 34 I.P.C. Ex.P14 is the original F.I.R. Further investigation in this case was taken up by P.W.15, the Inspector of Police, Vizianagaram. According to him, on receipt of a copy of the F.I.R., he reached the scene of offence located at Maruvada Kothavalasa Village and posted a Constable to guard the scene of offence and the dead body. P.W.12 was summoned to take photographs of the scene. He prepared a panchanama of the scene in the presence of P.W.11 and the same is placed on record as Ex.P6. He also got drawn a rough sketch of the scene, which is marked as Ex.P15. Under the cover of Ex.P6 - scene observation report, he has seized M.Os.1 to 3. Thereafter, he conducted inquest over the dead body of the deceased in the presence of P.W.11. Ex.P7 is the inquest report. During the inquest, he examined P.Ws.1 to 6 and others. He then sent the body for postmortem examination. P.W.13, the Civil Assistant Surgeon, Government Hospital, Vajrapu Kothuru, conducted autopsy over the dead body on 16.1.2012 and issued Ex.P13 -
Postmortem Certificate. According to him, the death of the deceased was due to hemorrhagic shock due to internal bleeding in the abdomen caused by lacerated injury on vital organs (heart and lungs). He further stated that lacerated injuries are possible with sharp objects like crowbar and knife. On 17.1.2012 at 0.05 AM, P.W.15, on receipt of credible information about the accused, secured the presence of P.W.11 and along with staff and mediators, proceeded to Gajapathinagaram and noticed four persons moving under 5 suspicious circumstances at Maruvada junction. On suspicion, they were apprehended and questioned about their identity. They disclosed their names and identity and also confessed about their involvement in the offence. Pursuant to the confession made, A1 and A4 lead the Police party to their house. A1 & A4 produced M.Os.4 & 5 from their houses, which were seized under the mediators report. A2 lead them to his house situated in the same street and produced M.O.6, while A3 lead them to his house, situated on the eastern side in the same street and at his instance discovered M.O.7, which was seized under a mediators report. Exs.P8 to P11 are mediators report.
4. After collecting all the necessary documents, P.W.15 filed the charge-sheet, which was taken on file as P.R.C. No.5 of 2012 on the file of the Judicial Magistrate of I Class, Gajapathinagaram. On appearance of the accused, copies of all the documents as required under Section 207 Cr.P.C. were furnished and since the case is triable by a Sessions Court, the same was committed to the Court of sessions under Section 209 Cr.P.C. On appearance of the accused, charges under Sections 449, 427 and 302 read with Section 34 I.P.C. came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
5. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P17, besides marking of M.Os.1 to
10. Out of 15 witnesses examined by the prosecution, P.Ws.4 6 to 9 did not support the prosecution case and were decaled hostile. After completing the 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, no defence evidence was adduced, except marking Ex.D1 - copy of gift settlement deed, dated 13.2.2012.
6. Relying upon the evidence of P.Ws.1 to 3, coupled with the evidence of P.W.10 and the evidence of the Postmortem Doctor - P.W.13, the trial court convicted the accused. Challenging the same, the present appeal came to be filed.
7. Sri G.Vijaya Saradhi, learned counsel for appellants, would contend that the prosecution is not coming forward with true version of the case and they have suppressed the earlier report given. He further pleads that there is any amount of doubt with regard to the involvement of A1 to A4 for the reason that at 2.00 PM they took P.W.7 to the Hospital and as such, they coming back and attacking the deceased at 3.00 PM is highly improbable. He would further contend that the First Information Report as well as 161 Cr.P.C. statement of P.W.1 are silent with regard to the overt acts of each of the accused and for the first time in the Court P.W.1 attributed specific role to each of the accused. According to him, though P.W.3 was projected as eyewitness, but her own evidence show that she came to the scene of offence much later and as such her 7 evidence is of no use. In so far as the evidence of P.W.2 is concerned, he would contend that, if really he has witnessed the incident, he would have informed about the incident to the Police or to others as he was having a cell phone. He keeping quiet till 1.00 PM on the next day throws doubt about his presence at the time of offence, more so, when his name is not mentioned in the F.I.R. Coming to the evidence of P.W.1, learned counsel would contend that her evidence is an improvement from what she has stated in earlier statement and as such, she is set up to suit the prosecution case. Having regard to the above and when the medical evidence does not corroborate the oral evidence in all aspects, the counsel pleads that case of the prosecution has to be viewed with suspicion.
8. The same is opposed by the learned Public Prosecutor contending that the evidence of P.Ws.1 and 2, who are the natural witnesses, cannot be doubted. According to him, immediately after the incident, P.W.1 took the help of P.W.10 in preparing the report and thereafter proceeded to the Police Station at 9.00 PM in the night and lodged the report. Further, the evidence of P.W.1 gets corroboration from the evidence of P.W.2 in all material aspects and the same requires no suspicion. He would also submit that the evidence of P.W.4 shows that at about 3.00 PM he noticed A1 to A4 armed with crowbars and iron rods moving towards the house of the deceased and later on heard cries from the house of P.Ws.1 8 and 2. Therefore, the learned Public Prosecutor would submit that not only the evidence of P.Ws.1 and 2, but also the evidence of P.W.4 (hostile witness) shows that all these accused armed with crowbars and iron rods proceeded to the house of the deceased, broke open the door, chased the deceased and attacked him. Hence, pleads that conviction and sentence imposed by the trial court warrants no interference.
9. The point that arises for consideration is whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
10. In so far as the issue as to whether it is a case of homicidal death, P.W.13 is the Doctor who conducted postmortem examination over the dead body of the deceased and noticed 17 external injuries on the body of the deceased. According to him, the deceased died due to hemorrhage shock due to internal bleeding in the abdomen caused by lacerated injury to vital organs (heart and lungs). This evidence of Postmortem Doctor and his Report, which is placed on record as Ex.P13, coupled with the inquest report - Ex.P7, establish that it was a case of homicide.
11. The question now is whether the accused are responsible for the death of the deceased?
12. In order to appreciate the same, it will be necessary to refer to the contents of the F.I.R. and the oral evidence of P.Ws.1 9 to 4. Ex.P1 is a report given by P.W.1. She got it scribed through P.W.10 and thereafter both of them went to the Police Station and lodged the report.
13. As stated earlier, P.W.1 set the law into motion by getting the report drafted through P.W.10 and presented the same before the Police. In the said report P.W.1 categorically stated that, on 15.1.2012 her son was abusing himself stating that somebody destroyed the hay. It was stated that when he was beaten with a stick, he came home. At about 3.00 PM, while P.W.1 and the deceased were at home, A1 to A4 holding crowbars came on to the house. On seeing them, the deceased came inside the house and closed the doors and thereafter all the four persons broke open the doors and threw the articles in pell-mell. Then, the deceased escaped from the backside of the house and ran up to the fields of P.W.8. The accused chased him and beat him with sticks and crowbars. P.W.1 claims to have witnessed the said incident.
14. From the above, two things which emerge out are (1) no specific overt acts are attributed to any of the accused; and (2) the name of P.W.2 does not figure in the F.I.R.
15. Coming to the oral evidence of P.W.1, she, in her evidence, deposed that the deceased used to reside adjacent to the house of P.W.2 and the houses of accused are situated near the house of P.W.2. The marriage of P.W.9 and the deceased took place 10 about 13 years back and out of the wedlock, they were blessed with two daughters. However, the marriage was to the dislike of A1 to A4, who are father-in-law and brothers of the deceased. About seven months prior to the present incident, A1 to A4 beat the deceased with stout sticks on his head and shoulders in their village. On the morning of fateful day, the deceased was murmuring himself about the damage caused to his grass heap. On hearing the same, some persons, who are shown as L.Ws.5 to 8 and L.W.11 came there and questioned the deceased as to why he was abusing them, but the deceased informed them that he is not scolding them and so saying went inside the house. At about 3.00 PM, A1 to A4 came to the house of the deceased, armed with crowbars, iron rods and stout sticks. P.W.1, who was standing near the house, saw the deceased going inside the house and bolting the door from inside. Thereafter, all the four accused broke open the door and went inside. When the accused entered the house, the deceased escaped from the back door and ran towards the agricultural land of P.W.8. The accused chased the deceased. P.W.1, who followed them, requested them to leave her son, but they did not heed to her request. A1 is said to have beat the deceased with crow bar on the left eye and also on the left hand. A4 beat the deceased with iron rod on his right shoulder and on his right knee, while A2 beat the deceased with a stout stick on his back side and A3 beat the deceased with a stout stick on his back side and also on the legs. The same was witnessed by P.W.2, P.W.3 and one 11 Sanyasappadu. After observing that the deceased died, A1 to A4 left the place along with weapons. Thereafter, law was set into motion by lodging the report.
16. In the cross-examination of P.W.1 it has been elicited that on the date of incident, L.Ws.5 to 9 and L.W.11 were playing cards. The deceased did not join them as he went to Dasari Veedhi. The deceased is said to have scolded the above persons about the gambling, but, however, P.W.7 chastised the deceased. On that, an altercation took place, in which the deceased beat P.W.7 with stick. This was at about 1.30 or 2.00 PM. She denied the suggestion that, after the incident, these four accused shifted P.W.7 to Hospital in their auto for treatment. To a suggestion that she has not stated before the Police as stated in Ex.P1, was denied by her. She also denied the suggestion that she has not stated before the Police that A1, A2 and A3 were armed with crowbars and iron rods. It has been elicited by the learned Public Prosecutor, in further chief, that A1 beat the deceased with M.O.4, A4 beat the deceased with M.O.5, A2 beat the deceased with M.O.6 and A3 beat the deceased with M.O.7.
17. P.W.2 is the son of P.W.1, who claims to have seen the incident. His evidence is on the same lines as that of P.W.1 in all aspects. In the cross-examination of P.W.2 it has been elicited that on that date of incident, the deceased scolded L.Ws.5 to 9 and 11 when they were found gambling and when 12 P.W.7 retaliated, an altercation took place in which the deceased beat P.W.7 with stick on his head and left hand. It was also elicited in the cross-examination that immediately after the death of the deceased, his father executed a gift settlement deed in his favour, as the property was an ancestral property. However, he also pleads ignorance as to when P.W.7 was shifted to the Hospital and also as to whether Police have recorded 161 Cr.P.C. statement of P.W.7. He admits having a cell phone, but have not called Bondapalli Police Station, nor informed about the incident to others. It has been elicited that himself and his deceased brother stay separately.
18. P.W.3 was also projected as an eyewitness to the incident. Though she speaks on the same lines as that of P.Ws.1 and 2 with regard to the earlier incidents, but her evidence is again silent with regard to the role played by each of the accused, except stating that all the four accused chased and thereafter attacked the deceased. She also claims to have followed them, when they ran behind the deceased up to the land of P.W.8, but, however, in the cross-examination she admits that after coming to know about the death of Appalaraju (deceased) they rushed to the house of P.W.1. The relevant portion is as under :
"After coming to know the death of Appalaraju we rushed to the house of P.W.1."
19. From the admission of P.W.3 a doubt arises as to whether really she was present at the time when these accused broke 13 open the door, chased the deceased and attacked him. Therefore, the argument of the learned Public Prosecutor that the evidence of P.W.3 supports the case of the prosecution cannot be accepted.
20. Though P.W.4 was declared hostile, but, he, in his evidence, deposed that at about 3.00 PM he noticed A1 to A4 armed with crowbars, iron rods proceeding towards the house of the deceased and due to fear, he stayed on the road. After some time, he heard hue and cries from the house of deceased. Though in the cross-examination by the counsel for the accused, he admits all the suggestions given, but these admissions, in our view, may not carry much weight having regard to the fact that he was declared hostile, as he went back on his earlier statement. In fact, he admits that in the earlier statement before the Police he spoke about the part played by each one of the accused in attacking the deceased. Therefore, the evidence of this witness, in our view, may not be of much value to the accused, except to the extent it corroborates the case of the prosecution.
21. As observed by us earlier, P.Ws.4 to 9, who were alleged to have been playing cards and P.W.7, who was said to have had a quarrel with the deceased, did not support the prosecution case and were declared hostile by the prosecution. In order to test the evidence of P.Ws.1 to 4 (P.W.4 though turned hostile), we intend to refer to the evidence of the Doctor - P.W.13, who 14 conducted postmortem examination over the dead body of the deceased, and external and internal injuries noted by him are as under :
"On the same day, I have examined and found the following external and internal injuries :
1. Eyes and mouth open,
2. Fracture in the right hand wrist,
3. Fracture in the right hand elbow,
4. Laceration of the right elbow region 2x1 CM size,
5. Abrasion of the right side of the axillary region 2x1 cm size,
6. Abrasion of the right knee joint 2x3 cm size,
7. Laceration of the right leg tibia 1/3rd 2x1 cm size,
8. Fracture in right leg ankle and swelling,
9. Left hand index finger fracture,
10. laceration of the right wrist 1x1 cm size,
11. Abrasion of the left leg tight 1/3rd 6x5 cm size
12. Abrasion of the left leg tibia and fibula 1/3rd 5x2 cm size,
13. Laceration of the left zygo matter bone upper and near eye brow 3x2 cm size,
14. Laceration of the left hand elbow 2x2 cm size,
15. Abrasion of the left axillary region 5x3 cm size,
16. Laceration of the left side axillary region 2x3 size
17. Abrasion of the left side spine lumbal region 2x1 cm size,
18. Rigor mortis present.
19. Anti mortem post mortem injuries in nature.
On postmortem examination (Internal Injuries) :-
1. Hyoid bone intact,
2. Sternum normal,
3. Left side ribs fracture, 2nd, 3rd and 4th
4. Left lung lacerated right lung normal,
5. two liters blood in the abdomen,
6. Heart lacerated,
7. Spleen, kidney, liver normal and cut section congested,
8. Stomach empty, intestines gas present,
9. Genital organ intact,
10. Urinary bladder empty,
11. Brain and meninges bleeding present in the cut section 200 ml,
12. Post mortem injuries in nature.
Cause of death :- Haemorhhage shock due to internal bleeding in the abdomen caused by lacerate injury of vital organs (heart, lungs). Time of death around 24 hours from the time of P.M. examination."
22. In order to test as to whether P.W.3 is an eyewitness to the incident, as observed by us earlier, P.W.3, though in the evidence in chief, deposed on the same lines as that of P.Ws.1 and 2 with regard to the earlier incident and also about the participation of four accused (without specifying any specific 15 overt-act to each one of them), but, however, in the cross- examination admits that after coming to know about the death of the deceased, she, along with others, rushed to the house of P.W.1. Therefore, there arises any amount of doubt as to whether really P.W.3 has witnessed the incident.
23. Coming to the evidence of P.W.2, he is none other than son of P.W.1 and brother of the deceased, who was staying next door. His evidence is to the effect that he was standing outside the house and noticed all the accused armed with weapons, entering the house of the deceased by breaking open the door and thereafter claims to have seen the actual participation of the accused in the attack. He also speaks about the incident which happened on the afternoon of that day where the deceased beat P.W.7 and the accused took the injured to the hospital at 2.00 PM.
24. It is to be noted here sometime after the incident P.W.1 went to P.W.10, got the report scribed and then at 1.00 AM (mid-night) went to the Police Station and lodged the report. Firstly, in the said report there is no reference to P.W.2 as having been present at the time of the incident. If really P.W.2, who is son of P.W.1, was present and has seen the incident along with P.W.1, definitely she would not have failed to mention his name in the first report. Having alleged to have seen the incident, P.W.2, if present, would have been the first person to call the Police, when on his own showing he was 16 having a cell phone with him. On the other hand, P.W.1, who is mother of P.W.2, goes to P.W.10, gets a report scribed and thereafter in the mid-night at 1.00 AM lodges a report. This circumstance, in our view, throw some suspicion for the reason that if really P.W.2 was present at the scene and witnessed the incident, he himself either would have informed the Police by making a phone call or would have gone to the Police Station to lodge the report, instead of troubling his mother. His evidence does not anywhere indicate as to what he was doing after his mother left to get the report scribed. The normal human conduct would have been either to inform the police on phone or go to the Police Station and give a report or at least go out and inform the elders. Therefore, the two circumstances, namely, non-mentioning of the name of P.W.2 in the First Report and also he not informing the Police or any other elder in the village, though he was having cell phone, creates any amount of doubt about his presence at the scene at the time of the incident. If the evidence of P.Ws.2 and 3 are excluded from the consideration, there remains the evidence of P.W.1
25. A reading of the evidence of P.W.1 vis-à-vis Ex.P1 would reveal that, as per Ex.P1, when the deceased and P.W.1 were in the house, the accused entered the house armed with weapons by breaking open the doors, threw the articles in the house in pell mell and assaulted the deceased. The deceased escaped from the back side of the house and ran up to the fields of P.W.8 17 where he was attacked by the accused. While giving evidence in the court, P.W.1 categorically deposed that she was standing outside the house when the accused came there armed with weapons, broke opened the doors and entered the house. Thereafter, the deceased left the house from the back door and at the fields of P.W.8, he was attacked. P.W.1 claims to have followed the accused, requested them to leave the deceased, but there was no change in their attitude, which is not the version in F.I.R.
26. Further, as stated by us earlier, in the First Information Report, no specific overt acts are attributed to any of the accused. Even in Section 161 Cr.P.C. statement recorded by the Police, no specific overt acts were attributed to the accused, leave alone mentioning about the presence of P.Ws.2 and 3 at the place. In fact, P.W.1, in her Section 161 Cr.P.C. statement did not state about the presence of other witnesses. Her statement is also silent about weapons with which the accused were armed. However, while giving evidence in Court, P.W.1 states that accused were armed with crowbars and sticks. It will be useful to extract the relevant portion of the cross- examination of P.W.15, which is as under :
"It is true that P.W.1 did not state about the specific overt acts of the accused. Likewise, she did not mention about the presence of P.Ws.2, 3 and L.W.4 at the place of offence. Even in her 161 Cr.P.C. statement, P.W.1 did not state about the presence of the above witnesses. P.W.1 did not state specifically mentioning about the weapons armed by each of the accused." 18
27. From the above it appears that P.W.1 has neither in the First Report or while she was examined by the Police under Section 161 Cr.P.C. stated any specific overt acts against the accused. In fact, she did not also mention about the weapons with which they are armed when her statement was recorded under Section 161 Cr.P.C. But, however, while giving evidence in the court she attributes overt acts to each of the accused. The overt acts are as under :
"A1 beat the deceased with crowbar on the left eye and also on the left hand. A4 beat the deceased with iron rod on his right shoulder and on his right knee. A2 beat the deceased with a stout stick on his back side. A3 beat the deceased with a stout stick on his back side and also on the legs."
28. Having regard to the fact that the case rests on the solitary testimony of P.W.1, whose evidence is with some embellishments, it is now to be tested whether she is speaking the truth. The motive for the commission of the offence was that the deceased married the daughter of A1 much to the dislike of accused and keeping that in mind, the accused have attacked the deceased. But, it is to be noted that the marriage between the deceased and P.W.9, who is daughter of A1, took place about 13 years back and out of wedlock they have blessed with two children. In fact, there is no evidence on record to show that A1, at any point of time, developed grouse against the deceased with regard to the marriage. Even there is no evidence on record to show that the accused had quarreled with the 19 deceased with regard to P.W.9 marrying the deceased. A minor incident is said to have occurred a day prior to the incident when the cattle of the accused was scared away by the deceased and then an altercation took place between the deceased and the father of the accused. Therefore, the motive, as suggested by the prosecution, for the incident in question, is a stale one. Things would have been different had there were any quarrels between the two families over the marriage. Even P.W.9 in her evidence never spoke about existence of any quarrel between the two families. In fact, she was treated hostile.
29. The evidence of P.W.9 and evidence of other witnesses show that there was a quarrel on the date of incident at 1.00 PM, when deceased beat P.W.7 on head, as his grass heap was destroyed. The accused shifted P.W.7 to Government hospital for treatment. From the evidence of P.W.9, though turned hostile, and the answers elicited from the cross-examination of the witnesses, it appears that in the afternoon of 15.1.2012 there was a quarrel between P.W.7 and the deceased, in which the deceased assaulted P.W.7 with stick. Later, P.W.7 was taken to the hospital by the accused. Keeping these circumstances in the background it is now to be tested whether the evidence of P.W.1 can be made the sole basis to convict the accused. It is no doubt true that if the evidence of P.W.1 is found to be truthful and if she is wholly reliable evidence, the same can be relied upon without any corroboration. It is also 20 well established principle of law that the oral evidence always prevails over medical evidence, if the oral evidence is found to be reliable.
30. In the instant case, as observed by us earlier, the entire case now rests on the evidence of P.W.1, who is none other than the mother of the deceased.
31. It is now stands established that the incident took place at about 3.00 PM. P.W.1 does not make any effort to ask her son P.W.2 or P.W.3, who is younger sister and neighbour, or one Sanyasappadu, who was alleged to have been present at the scene, to help her in lodging the report. She goes to the house of P.W.10 at 9.00 PM and informs about the incident and requested him to scribe the report. This version of P.W.1, namely, informing P.W.10 about the incident and requesting him to scribe the report is required to be viewed with some suspicion, for the reason, that P.W.10 in his evidence states that on 15.1.2012 he came to know through his villagers that there was a galata between the deceased and A1 to A4 in the fields of P.W.8. He felt that it was a routine galata and did not give much importance to the same. At around 4.00 PM, he came to know that the deceased died due to beating by A1 to A4 with crowbars and iron rods. He claims to have gone to the agricultural fields of P.W.8 and saw the dead body and after seeing the dead body, he returns back to his house. That being the position, P.W.1, who claims to have been present at the 21 body after the incident or was present at the scene of offence, would have immediately requested P.W.10 to scribe the report and help her in lodging the same.
32. In fact, the evidence of P.W.10 does not anywhere refer to the presence of any of the family members near the dead body. He claims to have gone to the agricultural field on coming to know about the incident, saw the dead body and returned back to his house. His conduct also appears to be abnormal, more so when he has got acquaintance with the family of the deceased. Further, if really P.W.1 wanted to get a report lodged through P.W.10 or for that matter there was no one to help her in getting the report prepared, she could have availed the help of P.W.10 when he visited the spot. For reasons best known, the same was not done. Long thereafter i.e., at about 9.00 PM in the night, P.W.1 claims to have gone to the house of P.W.10 and informed him about the manner in which the incident took place and also requested him to scribe the report. But, P.W.10, in his evidence, deposed that P.W.1 came to his house by weeping and requested him to draft a report as no one in the village has come forward to scribe the report. In so far as the version that "no one came forward to scribe the report in the village", is absent in the evidence of P.W.1. Therefore, there arises some suspicion as to the circumstances under which the first information report was brought into existence. 22
33. Further, at about 1.00 AM in the night P.W.10 claims to have taken P.W.1 on his bike, to the Police Station and lodged a report. This report is said to have reached the Magistrate at 10.30 AM. At this stage, one other circumstance which assume lot of importance is that in the cross-examination of P.W.10, it has been elicited that on the following day at about 7.00 AM Police called him to the scene of offence and asked him to scribe another report with the same contents. There was no necessity to scribe another report with same contents, when at 1.00 AM a report was already lodged before Bondapalli Police Station and the same was acknowledged by P.W.14 and in fact he claims to have registered a crime by then. If really crime was registered at 1.00 AM, as deposed by P.W.14, there was no necessity for the investigating agency to request P.W.10 to draft another report at 7.00 AM in the morning. Probably, this admission makes it clear that everything was in a fluid condition by then and the report given at 1.00 AM was never registered as crime by the Police. That is why there was abnormal delay in the report reaching the Magistrate. If really the F.I.R. was given at 1.00 AM and it was registered as crime at 1.00 AM itself, it is strange as to why the Police sought for another report from P.W.10 and also as to why the said report reached the Court at 10.30 AM on 16.1.2012, when the distance between the Police Station and the Court is 1 K.M. The relevant admission in the evidence of P.W.10 with regard to the request made by the Police Officer for another report is as under :
23
"It is true that on the next day at about 7.00 AM Police called me to the scene of offence and asked me to scribe another report with the same contents."
34. Apart from the above, the solitary testimony of P.W.1 is also required to be tested with the medical evidence. As observed by us earlier, there were number of external injuries on the body of the deceased and most of the injuries were fractures on right hand wrist, right hand elbow and right leg ankle & abrasions on the right side of the axillary region, right knee joint, left leg tight, left leg tibia, left axillary region and left side spine lumbal region. The cause of death was due to injuries to vital organs like heart and lungs. P.W.1 in her evidence deposed about the overt acts. According to her, A1 bet with a crowbar on left eye and also left hand; A4 bet with iron rod on the right shoulder and right knee; A2 bet with stout stick on back side; and A3 bet with stout stick on back side and also on the legs. None of the overt acts attributed to A1 to A4 were on vital parts of the body, namely, either on the head or on the chest or on the rib region. Under those circumstances, it is strange as to how so many injuries were found on the body of the deceased and further the death was due to lacerated injury on vital organs. Therefore, though the oral evidence at times prevails over the medical evidence, which is only an opinion evidence, but, in the given set of circumstances, when the evidence of P.W.1 is clouded with some suspicion, to get corroboration to her evidence, we were forced to seek the aid of 24 medical evidence to test the veracity of her evidence, but found that the medical evidence does not go in line with the oral evidence of P.W.1. For all the reasons aforementioned, the evidence of P.W.1 has to be viewed with some suspicion.
35. Hence, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.
36. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants - accused, for the offences punishable under Sections 449, 427 and 302 read with Section 34 I.P.C. in Sessions Case No.86 of 2012 on the file of the I Additional Sessions Judge, Vizianagaram, by judgment dated 18.2.2015, are set aside. The appellants - accused are acquitted and they shall be set at liberty forthwith, if they are not required in any other case. Fine amount paid, if any, shall be refunded to appellants - accused.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ______________________________ JUSTICE B.KRISHNA MOHAN Date : 10-11-2020 skmr