Andhra HC (Pre-Telangana)
The State Of A.P., Rep. By Its Public ... vs Bhuma Venkata Nagi Reddy And Eleven ... on 10 February, 2014
Bench: K.C.Bhanu, Anis
THE HONBLE SRI JUSTICE K.C.BHANU AND THE HONBLE SMT. JUSTICE ANIS
CRIMINAL APPEAL NO. 1555 OF 2008
10-02-2014
The State of A.P., rep. by its Public Prosecutor..Appellant
Bhuma Venkata Nagi Reddy and eleven others. Respondents
Counsel for the Appellants : The Addl. Public Prosecutor
Counsel for the Respondents: Sri P.Nagendra Reddy for
Respondent No.1
<Gist :
>Head Note:
? Cases referred:
1. (2004)4 S.C.C. 158
2. (2012)4 S.C.C. 79
3. AIR 1962 SC 439
4. AIR 1956 S.C. 217(1)
5. 2011(2) ALT (Crl.) 275 (SC)
6. AIR 1965 S.C. 202
THE HONBLE SRI JUSTICE K.C.BHANU
AND
THE HONBLE SMT. JUSTICE ANIS
CRIMINAL APPEAL No. 1555 OF 2008
JUDGMENT:(Per the Honble Smt. Justice Anis)
1. This Criminal Appeal, under Section 378(3) & (1) of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment dated 01.11.2004 in Sessions Case No.330 of 1993 on the file of the learned III Additional Sessions Judge, Kurnool at Nandyal, whereunder and whereby the respondents/A.1, A.2, A.4, A.6 to A.9, A.11 and A.12 were found not guilty of the offences punishable under Sections 302 r/w 149, 307 r/w 149, 324 r/w 149, 326 r/w 149 of the Indian Penal Code, 1860 (for short I.P.C.) and under Section 3 of Explosive Substances Act, 1908 (for short E.S. Act) and respondent/A.11 was found not guilty of the offence punishable under Section 27 of the Arms Act, 1959 and accordingly, they are acquitted of the same.
2. The case of the prosecution, in brief, is as follows:
There is severe faction and political rivalry between the family of A.1 and one Gangula Pratap Reddy, who is the cousin of de facto complainant by name Subhash Reddy (PW1) in the erstwhile Allagadda taluq. On 18.10.1982, the father of A.1 by name Bhuma Bali Reddy was murdered and in the said case, PW1 and others were figured as accused and it ended in acquittal. Hence, A.1 and his brothers bore grudge against PW1 and others, keeping the said grudge in mind, A.1 and his brother, Bhuma Bhaskar Reddy along with others attempted to kill PW1 while he was sleeping on a cot with his wife in his house at Yarragudidinne village. On the complaint given by PW1, a case in Crime No.17 of 1986 of Sirvel Police Station was registered against A.1 and his brother, Bhuma Bhaskar Reddy for the offence punishable under Section 307 I.P.C. and under Sections 3 and 5 of E.S. Act. While so, on 25.06.1988, PW1, PW2, PW14, PW15, PW16 and one Dande Rameswara Reddy (hereinafter referred to as the deceased) and others started at 9.00 a.m. from Yarragudidinne, went to Sirvel and got filed nominations by their supporters for the post of Sarpanch and at about 12 noon, they left Sirvel and reached Rudravaram by 1.00 p.m., and while they were returning from Sirvel, all the accused came opposite to them in a lorry and crossed them at 12.30 p.m. while proceeding towards Sirvel. It is the further case of prosecution that PW1, Prabhakara Reddy (PW2), Venkateswarlu (PW14), Pullaiah (PW15), Venkata Rami Reddy (PW16), the deceased and others after reaching Rudravaram, went to the house of G.Venkateswarlu, father of G.Ramesh (PW6), kept their vehicles and weapons in the house of PW6, secured the presence of Pola Gurumurthy (PW4), G.Ramesh (PW6), Lingam Sreenivasulu Setty (PW7), Dollu Maddilety (PW8), G.Venkteswarlu (father of PW6) and others and went to panchayat office, Rudravaram by walk and got filed nominations through their candidates i.e., PWs 4, 6, 7, 8 and others from 2.15 p.m. to 3.00 p.m. on the same day. It is the further case of prosecution that PWs 4, 6, 7, 8 and others left the panchayat office at about 3.00 p.m. to go to Ammavarishala to attend marriage function and proceeded to a distance of 150 to 200 yards, by that time, one lorry bearing No.AAQ 4744 came from Narsapuram side at 3.15 p.m. and stopped at a distance of 5 or 6 feet away from them. There were 15 to 20 persons in the lorry apart from the accused.
A.11 was armed with a gun and all the remaining accused were armed with bombs. At the first instance, A.1 hurled a bomb against PW2, which hit on his right shoulder and exploded and the splinters hit on the face, stomach, arm and legs of PW1. A.11 fired at the deceased, as a result of which the deceased fell down and died on the spot. All the other accused hurled bombs against the prosecution-party, as a result of which the prosecution-party i.e. PWs 1,2,3,5,14,15,16 and four others i.e., Byri Gangamma, Bhavanasi Ramanaiah, Alamuri Siva Reddy and Konkala Krishna Reddy (List Witnesses 5,6,8 and 9) received splinter injuries and the accused fled away in the same lorry. It is the further case of prosecution that immediately after the occurrence, PW2, PW15 and two other injured were taken to Yerragudidinne in a jeep and from there, all of them were taken to Nandyal by one Manohar Reddy and got them admitted in Government Hospital, Nandyal. It is the further case of prosecution that PW1, PW14, PW16 and others went to Rudravaram Police Station where PW1 lodged a complaint Ex.P.1 to I.D.Prabhakar, Sub-Inspector of Police at 3.30 p.m., basing on which the police registered a case in Crime No.28 of 1988 for the offences under Sections 147,148,324,326, 307,302 r/w 149 I.P.C., under Sections 3 and 5 of E.S. Act and under Sections 25(1B)(a) and 27 of Arms Act, 1959 against the accused and submitted Express First Information Report to all the concerned officers.
It is the further case of prosecution that the Inspector of Police (PW22) having come to know about the occurrence, reached the scene of occurrence which is situated near the bus stand of Rudravaram village by 4.30 p.m. on 25.06.1988, took up investigation, conducted inquest over the dead body of the deceased in the presence of inquest panchayatdars Bonthala Sreeramulu (PW10), Mandalur Narayana (PW11) and Kalangari Narasimhulu (PW17) under the cover of inquest mahazar (Ex.P.27), seized incriminating material from the scene of occurrence and sent the dead body of the deceased to Government Hospital, Nandyal for post-mortem examination, where Dr. K.Narayana conducted autopsy over the dead body of the deceased and also examined the injured persons, viz., PWs 1,2,3,5,14,15 and 16 and also one Byri Gangamma, Bhavanasi Ramanaiah, Alamuri Siva Reddy and Konala Krishna Reddy (List Witnesses 5,6,8 and 9) and issued wound certificates.
It is the further case of prosecution that PW2 gave statement under Ex.P.2 on 25.06.1988 at 7.00 p.m. while undergoing treatment in Government Hospital, Nandyal and the H.C.619 of II Town Police Station, Nandyal transferred the same to Rudravaram Police Station on the point of jurisdiction under the cover of Ex.P.49. It is the further case of prosecution that on 30.07.1988 at 10.45 a.m., the then Inspector of Police, Allagadda (PW22) arrested A.1, A.2, A.4, A.5, A.7 and A.8 at the house of A.1 and got them remanded to judicial custody. The Sub-Inspector of Police, Kurnool II Town Police Station (PW12) arrested A.11 on 12.07.1988 at Kurnool in the presence of M.Venkata Reddy, Head Constable (PW21), seized one rifle and some live and empty cartridges from the possession of A.11 under the cover of police proceedings Ex.P.6. It is further case of prosecution that the rifle which was seized from A.11 and the metallic fragments of bullet which were recovered from the dead body of the deceased by the Medical Officer, who conducted post-mortem examination, were sent to the Ballistic expert and the expert gave report under Ex.P.50 opining that the metallic fragments of the bullet, seized from the body of the deceased were not discharged from the rifle of A.11. It is the further case of prosecution that PW23, the then Inspector of Police, verified the investigation done by his predecessor-in-office - PW22 and after receiving all reports and after completion of investigation, he filed the charge sheet into the Court.
3. The trial Court framed the following Charges against the accused:
Firstly, that on 25-6-88 at about 3.15 P.M., near bus stand in Rudravaram village, you A1, A2, A4, A6 to A12 and Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you A11 armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10,A12, Erukala Nagadu, Mulla and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy and that you A1,A2,A4, A6 to A12, thereby committed the offence punishable u/s.302 r/w 149 IPC, and within my cognizance;
Secondly, that on 25-6-88 at about 3.15 P.M., near bus stand in Rudravaram village, you A1,A2,A4,A6 to A12, Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you A11 armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10 and A12 and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy, that you A1 hurled a country made bomb at Prabhakar Reddy in pursuance of your common object to kill him, that by your act, if you had caused the death of Prabhakar Reddy, you would have been guilty of murder, and that you A1,A2,A4,A6 to A12 thereby committed the offence u/s.307 IPC r/w.149 IPC, and within my cognizance;
Thirdly, that on 25-6-88 at about 3.15 P.M., near bus-stand in Rudravaram, you A1,A2,A4,A6 to A12, Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you A11 armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10,A12, Erukala Nagadu, Mulla and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy, that the bombs exploded causing injuries to Subhash Reddy, Venkateswarlu, T.Pullaiah, B.Ramanaiah, S.Venkatarami Reddy, B.Venkataiah, A.V.Siva Reddy, Mohd. Rafi and K.Krishna Reddy, and that you A1,A2,A4,A6 to A12 thereby committed the offence u/s.324 r/w.149 IPC, and within my cognizance;
Fourthly, that on 25-6-88 at about 3.15 P.M., near bus-stand in Rudravaram, you A1,A2,A4,A6 to A12, Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you all armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10,A12, Erukala Nagadu, Mulla and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy, that the bombs exploded and caused grievous injuries to Boya Gangamma, and that you A1,A2,A4,A6 to A12 thereby committed the offence u/s.326 r/w.149 IPC, and within my cognizance;
Fifthly, that on 25-6-88 at about 3.15 P.M., near bus stand, in Rudravaram village, you A1,A2,A4,A6 to A12, Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you all armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10,A12, Erukala Nagadu, Mulla and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy, and that you A11 thereby committed the offence u/s.27 of the Arms Act, and within my cognizance; and Sixthly, that on 25-6-88 at about 3.15 P.M., near bus-stand in Rudravaram village, you A1,A2,A4,A6 to A12, Erukala Nagadu, Mulla and twenty others formed into unlawful assembly armed with country made bombs, that you A11 armed with an unlicensed rifle, with the common object of killing Subhash Reddy and Prabhakar Reddy, that you A1,A2,A4,A6 to A10, A12, Erukala Nagadu, Mulla and others hurled country made bombs at them, that you A11 fired your rifle killing Rameswara Reddy, and that you A1,A2,A4,A6 to A10 and A12 thereby committed the offence u/s.3 of the Explosive Substances Act, and within my cognizance.
When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.
4. To substantiate its case, prosecution examined P.Ws. 1 to 24 and got marked Exs.P.1 to P.52, besides case properties M.Os.1 to 22.
5. After closure of prosecution side evidence, the accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstances found against them in the evidence of prosecution witnesses. The accused denied the same and on their behalf, examined DWs 1 to 6 and got marked Exs.D.1 to D.11.
6. Upon considering the evidence on record, the trial Court acquitted the accused of the respective charges framed against them. Aggrieved thereby, the present Criminal Appeal is preferred by the State.
7. During pendency of the appeal, case against A.3 to A.5, A.8 and A.10 was abated vide Court Order, dated 25.08.2008 in Crl.A(SR) No.5491 of 2005 since they died, likewise case against A.2 was abated since he died on 13.04.2013.
8. Now, the points that arise for determination are
1) Whether the death of the deceased is homicidal in nature?
2) Whether the prosecution is able to prove the guilt of the accused beyond all reasonable doubt? and 3) Whether the judgment of the trial Court is correct, legal and proper or not?
9. The learned Additional Public Prosecutor argued that the judgment of the trial Court is contrary to the evidence on record and that no valid and convincing reasons were given by the trial Court for rejecting the prosecution evidence i.e. the evidence of PWs 1, 2 and 14 to 16; that there is no delay in lodging Ex.P.1 report by PW1 before the police; that the evidence of PWs 1, 2 and 14 to 16 is consistent and corroborated in all aspects with the recitals in Ex.P.1 complaint; that the medical evidence supported the case of prosecution; that the deceased died due to gun shot injury; that the incident took place at 12 noon and all the accused belongs to opposite faction party; that the crime weapon i.e. gun, was seized from A.11 and the ballistic experts report supports the case of prosecution and that the learned trial judge ought to have seen that the alibi petition of A.11 was rightly rejected.
It is further argued that A.1 hurled a bomb against PW2, which hit on his right shoulder and exploded, as a result of which, PW2 sustained grievous injury; that A.11, who was in possession of fire arm, fired at the deceased which hit him and caused instantaneous death; that all the remaining accused, who were in possession of the bombs, hurled bombs against opposite party group and caused injuries to other witnesses; that the Sub-Inspector of Police and Head Constable, who reached the scene of offence on hearing the explosion of bombs, chased the accused, but they fled away in the lorry; that the post-mortem examination report conducted by the doctor clearly goes to show that the deceased died of gun shot injury and the wound certificates also clearly prove that PWs 1,2 and 14 to 16 sustained grievous injuries; that the evidence of PWs 1,2 and 14 to 16 regarding the manner of the incident and the injuries sustained by the other witnesses in the hands of accused, are corroborated with each other. He relied on two case-laws reported in Zahira Habibulla H.Sheikh and another Vs. State of Gujarat and others and Mano Dutt and another Vs. State of Uttar Pradesh and prayed the Court to convict the respondents/accused by setting aside the judgment of the trial Court.
10. On the other hand, the learned counsel for the respondents/accused argued that the injured persons PWs 3 to 7 did not support the case of prosecution and further according to them, the offence took place at 1.30 p.m., whereas the evidence of PWs 1, 2 and 14 to 16 shows that the alleged offence took place at 3.15 p.m. on 25.06.1988 and Ex.P.1 was sent to the Police Station by 3.30 p.m., which was registered by the police; that PW1 in his cross-examination admitted that he could complete writing complaint Ex.P.1 by 4.30 p.m., therefore question of registration of complaint by 3.30 p.m. by the police does not arise and if at all, the complaint was received by the police at 3.30 p.m., the same could have been reached to the Magistrate by 4.30 p.m. as the distance to the Court from the scene of offence is only about 17 Kms., but it was reached 7 to 8 hours after commission of the offence and the prosecution failed to explain the delay; that PWs 1 and 2 are seasoned factionists and number of criminal cases are pending against them; that though PWs 14 to 16 are injured witnesses, they are partisan witnesses and their evidence cannot be relied upon; that no independent witnesses were examined and the alleged independent witnesses PWs 3 to 8 did not support the case of prosecution and did not speak about the manner of incident happened at the scene of offence as described by PWs 1, 2 and 14 to 16; that admittedly, there are bunks, arrack shops, provisional shops and hotels, etc., near the scene of offence, and though the alleged incident took place at day broad light, still the prosecution failed to examine any independent witnesses from the said locality and this circumstance alone would go to show that the prosecution has not come with true facts of the case; that if really the bomb exploded on the right shoulder of PW2, his right shoulder would have been blown off into pieces and he would not have sustained only one grievous injury and three simple injuries, and therefore the prosecution story cannot be believed; that it is a definite case of the prosecution that A.11 standing on the body of the lorry fired at the deceased, thereby the deceased received gun shot injury and died, but if really A.11 fired at the deceased from the lorry, the track of gun-shot injury shall be towards downwards and not vice- versaand further as per the post-mortem examination report of Dr. Narayana, the track of the bullet is upwards - this unnatural circumstance alone falsifies the case of prosecution that A.11 fired at the deceased; that the Sub-Inspector of Police (PW12) seized the rifle from A.11 under the cover of panchanama and the said rifle and the metallic fragments seized from the dead body of the deceased were sent to Forensic Science Laboratory (F.S.L.) to prove that the bullet that pierced into the dead body of the deceased was fired from the rifle seized from A.11, but the report of the analyst clinchingly goes to show that the metallic fragments seized from the dead body of the deceased were not fired from the rifle seized from A.11 and therefore, the trial Court rightly acquitted the accused and prayed to dismiss the appeal.
11. Point No.1:
PWs 10, 11 and 17 are the inquest panchayatdars and they have not supported the case of prosecution. They are the residents of Rudravaram village. They categorically stated that they were not present at the time of inquest held over the dead body of the deceased on 25.06.1988 and they have not witnessed the inquest done by PW22 Investigating Officer.
12. The Inspector of Police, Rudravaram (PW22) stated in his evidence that on 25.06.1988 at about 4.30 p.m., he visited Rudravaram Police Station, obtained copy of express First Information Report from the Sub-Inspector of Police, took up investigation, visited the scene of offence situated at Rudravaram bus stand, found the dead body of the deceased in a pool of blood with injuries in the open space to the south of the house of Lingam Atchaiah at Rudravaram village near the bus stand and having collected the panchayatdars, he conducted inquest over the dead body of the deceased from 5.00 p.m. to 7.00 p.m. PW22 further stated that as per the inquest report Ex.P.27, inquest panchayatdars gave opinion that the deceased died due to injuries sustained by him in the hands of the accused by gun and bomb.
13. Ex.P.35 is the post-mortem certificate issued by Dr. A.Narayana, but he was not examined. PW24, who worked as Civil Assistant Surgeon at Government Hospital, Nandyal from 1983 to 2001, was examined and he stated that during the said period, he worked along with Dr. A.Narayana; that Dr. A.Narayana died in the year 1996 to his knowledge; that he can identify the signature and handwriting of Dr. A.Narayana being his colleague; that he was giving evidence as per the instructions of the Superintendent, Government Hospital, Nandyal to speak about the post-mortem certificate and wound certificates issued by Dr. A.Narayana; that Ex.P.35 was issued by Dr. A.Narayana and he could not read out the contents since they are not legible. At this stage, the learned Additional Public Prosecutor sought permission to cross-examine the witness as the contents of the above said documents are legible, and he was permitted to put questions. In the cross-examination, PW24 denied the suggestion that the writing in Ex.P.35 is legible and that he was purposefully avoiding to read out the contents of the said exhibits.
14. A perusal of the post-mortem certificate (Ex.P.35) shows that the following external injuries were found on the body of the deceased:
1. Contusions on the right side of the face at mortem emerance region 3 X 1 oblique.
2. Abrasions on the back of the right arm 3 X 2.
3. Gunshot injury on the right arm, on the aspect 1 X 1. Edges blocked Metal part removed from the wound.
4. Lacerated injury on the right back, at tatual end of the shoulder blade, irregular bleeding present. 2 X 1.
5. Oval injury, just below the injury No.4 present. X . Blacking of the edges present.
6. Two small lacerated injuries present just side of the injuries (4) and (5). X .
7. Lacerated injury on the right 2 X 1 edges blocked.
8. Punching injury on the left back near the midline 1 X 1 irregular.
9. Abrasions on the left lame region X .
10. Contusion front of the chest aware on the left whicker.
Deep dissections of the wounds (1) and (2) Blood clots present. No fraction of the bones. 3) Blood clots present, it seems are lacerated. Metallic found is removed from the concerned. (4) and (6) Blood clots present. No fracture of the bones. 5) Blood clots present, mouth lying tissues are lacerating 4th, 5th, 6th and 7th injuries are fractures. Parcesons bones are present in the penal cavity apparent. Lung is also lacerated. Blood with clots present in the vein plenel cavity. 7) Blood clots present, bleeding of edges and metallic found is removed from the injury no fracture of the bones. 8) Blood clots are present. There is one entry of the gunshot is translated upon wounds, forward, along the upper ploe of the left kidney, left lung is region, upper part of the head is region, Pin and scanned space near the sterums, injury and veins. Sloping below the skull in the superficial layers. Metallic panel (level) is removed from the superficial views below the skull, huge blood clots present on the superficial on as that panel in corresponding to the wound No.10. 9) Blood clots present. No fracture of the bones.
The doctor gave opinion that the deceased died due to shock and haemorrhage.
15. A perusal of the recitals in inquest report and post- mortem examination report coupled with the above oral and medical evidence, it is evident that the death of the deceased is a homicidal death.
16. Points 2 and 3:
While dealing with the order of acquittal, though the appellate Court has got full power to re-appreciate the evidence, but it will be slow in interfering with the same in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved and that presumption of innocence is further strengthened by an order of acquittal. Unless the findings are improper or illegal or incorrect, ordinarily this Court would not interfere with the same. On this aspect, it is pertinent to refer to a decision reported in Harbans Singh and another Vs. The State of Punjab , wherein it was held thus:
The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on compelling and substantial reasons and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal. The use of the words compelling reasons embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words compelling reasons. In later years the Court has often avoided emphasis on compelling reasons but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only question of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.
The Honble Supreme Court in a case of Aher Raja Khima Vs. State of Saurashtra , held as under:
It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong. Almer Singh V. State of Punjab, AIR 1953 SC 76 at pp. 77-78(A): and if the trial Court takes a reasonable view of the facts of the case, interference under S.417 is not justifiable unless there are really, strong reasons for reversing that view, Surajpal Singh V. State, AIR 1952 SC 52 at p.54(B).
The Honble Supreme Court in a case of Babu Vs. State of Kerala , held in para 15 as under:
Thus, the law on the issue can be summarized to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Courts acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided unless there are good reasons for interference.
17. PW22 is the Investigating Officer in this case. He visited the scene of offence on 25.06.1988 at 4.30 p.m., which is situated at Rudravaram bus stand and found the dead body of the deceased in a pool of blood with injuries in the open space to the south of the house of Lingam Atchaiah. He had also drawn the rough sketch of the scene of offence under Ex.P.28.
18. According to the case of prosecution, on 25.06.1988 A.11 killed the deceased by shooting with a gun. PWs 1, 2 and 14 to 16 stated their evidence in the same lines that A.11 attacked the deceased with a gun and due to the gun injuries, he died. There is no dispute that all the accused belonged to Telugu Desam party, whereas PWs 1, 2 and other prosecution witnesses belonged to Congress party and that the cases and counter cases were filed against both sides by the police.
19. The specific case of PW1 is that A.11 fired the gun from the body of lorry in standing position and he cannot say how many times A.11 fired his gun, but the deceased received gun shot from A.11 and died. It is further case of PW1 that except the deceased, none of them received gun shot injuries.
20. Now, it is appropriate to consider the post-mortem examination report of the deceased Ex.P.35. PW24 is the doctor who was examined to identify the signature of Dr. A.Narayana, who conducted the post-mortem examination over the dead body of the deceased. PW24 stated that Dr. A.Narayana died in the year 1996 and as per the instructions of his Superintendent, he was giving evidence, but he cannot read the contents of Ex.P.35 as they were not legible. At this stage, the learned Additional Public Prosecutor sought permission from the Court for cross-examination and the permission was given. In the cross-examination, PW24 denied that Ex.P.35 is legible and he was purposefully avoiding to read out the contents of the said exhibit.
21. The evidence of PW24 shows that he does not want to support the case of prosecution and on the other hand, in the cross-examination, he stated that the kidneys are placed below the lungs and the bullet that entered into the body which is discharged from fire arm, leaves a track. He further stated that if the bullet is entered into the kidneys and proceeded towards lung, the track is called upward track, in such a case the fire arm would have been used from beneath towards up and the metal portion of the bullet travels longer distance than that of the smoke that passed along with the bullet. He further stated that the formation of smoke and soot is called blackening and when the blackening is found on the wound, it suggests close range.
22. From a perusal of Ex.P.35, it is shown as under:
There is one entry of the gunshot is translated upon wounds, forward, along the upper ploe of the left kidney, left lung is region, upper part of the head is region, Pin and scanned space near the sterums, injury and veins. Sloping below the skull in the superficial layers. Metallic panel (level) is removed from the superficial views below the skull, huge blood clots present on the superficial on as that panel in corresponding to the wound No.10.
23. Further, the Sub-Inspector of Police, II Town Police Station, Kurnool (PW12) stated in his evidence that on 12.07.1998 at about 8.30 p.m., he along with his staff were moving in his jurisdiction and when they arrived at Sukhsagar cool drink shop at Gandhinagar, they noticed a person standing there with rifle in his hand and when they enquired, that person revealed his name as S.V.Mohan Reddy S./o.S.V.Subba Reddy of Allagadda (A.11) and when they further enquired about the rifle in his possession, he informed that the rifle belonged to him and he hold license for the weapon and he was possessing another license for D.B.B.L. gun; that when he checked the weapon, it is made at Czechoslovakia and on the rifle, 22378 number is inscripted; that when he checked up the hand bag of the said person, there were 11 D.B.B.L. cartridges and 6 rifle cartridges, one rifle cartridge was empty i.e. spent cartridge and three D.B.B.L. cartridges were empty out of 11; that he seized the rifle along with the cartridges of D.B.B.L. gun and bag under Ex.P.6 panchanama in the presence of panchayatdars and it was drafted by PW21; that he brought A.11 to the police station and registered a case in Crime No.276 of 1988 under Section 41(1)(a) of Cr.P.C. and issued First Information Report Ex.P.1 and that he sent the property to the concerned Court. In the cross-examination, PW12 stated that A.11 had shown the licenses possessed by him for rifle and D.B.B.L. gun and he deposited the D.B.B.L. gun in the police station earlier to 12.07.1988, but denied a suggestion that he did not arrest A.11 in Crime No.276 of 1988 and that he himself produced the weapon in the police station.
24. The investigating Officer PW22 stated in his evidence that on 05-07-1988 he gave a requisition to the Judicial Magistrate of First Class, Allagadda for sending the particles of fired bullet found in the dead body of the deceased, which were preserved by the Medical Officer after post-mortem examination; that Ex.P.32 is the requisition and Ex.P.33 is the letter of advice; that after receiving MO21 four pieces of metallic bullet parts, from Forensic Science Laboratory, on 12.08.1988, PW22 gave another requisition to the Judicial Magistrate of First Class, Allagadda to send a rifle and spent cartridge to the expert, which were seized by PW12 from A.11; that Ex.P.36 is the requisition and Ex.P.37 is the letter of advice; that the said rifle is the licensed rifle; that MO22 is the three cartridges having measurements of 6.5 X 57 mm.
25. As per Ex.P.50, the Joint Director of Forensic Science Laboratory has given opinion as under:
1. I have chemically examined the barrel washing of the rifle item 2, and detected traces of combustion products of smokeless gun powder.
Hence, it is opined that the rifle item 2 was fired previously. However, the date when it was last fired cannot be ascertained.
2. The rifle item 2 is in working condition.
3. The cartridge case item 3 could have been fired from the rifle item 2.
4. The base of the metal jacket in item 1 has a diameter of 0.815 mm, larger than the bore of the rifle, item 2 (6.3 mm). Also there are six grooves visible on the metal jacket, whereas the rifle item 2 has only four grooves in its bore. Hence, it is opined that the bullet fragments in item 1 were not discharged from the rifle item 2. They must have been discharged from any rifled weapon other than item 2, and having bore diameter 0.815 mm.
Thus, it is evident that the deceased died not with the gun shot fired by A.11 on 25.06.1988.
26. Before dwelling into the evidence let in by the prosecution, it is pertinent to refer to a decision reported in Masalti Vs. State of Uttar Pradesh , wherein it is held as under:
"There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witness. Often enough, where factions prevail in villages and members are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a particular type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence should be rejected because it is partisan cannot be accepted as correct."
27. According to prosecution, PWs 1, 2 and 14 to 16 supported its case and their evidence has corroborated with each other. Apart from the said witnesses, PWs 3 to 8 sustained injuries, but they did not support the case of prosecution. PW1 in his evidence stated that on 25.06.1988, he along with PWs 1 and 14 to 16 and others went to panchayat office in connection with filing nominations for the purpose of panchayat presidentship; that at about 3.00 p.m., nominations were filed and they were going to bus stand by walk, at that time all the accused came from Narsapuram side in a lorry and apart from the accused, 20 more persons were also there in the lorry; that A.11 was holding a gun and all other accused were having bombs in their hands; that A.1 hurled a bomb against PW2 and it hit the right shoulder of PW2 and exploded, due to which PW2 sustained grievous injuries and fell down due to the said injuries; that all other accused also hurled bombs against them; that A.11 fired at the deceased and the deceased fell down and died on the spot; that thereafter, the accused fled away from the scene of offence; that he reported the matter in Rudravaram Police Station; that Ex.P.1 is his statement recorded by the Sub- Inspector of Police and thereafter, he was sent to Government Hospital, Nandyal and that MOs 1 to 3 were seized in the Government Hospital, Nandyal from him.
28. In Ex.P.1, PW1 stated that the accused came in a lorry bearing registration No.AAQ 4744 and got down and as soon as they got down from the lorry, all of them together threw bombs on them and that A.11 had fired with the gun in his hands. PW22 received Ex.P.1 from PW1, registered the case in Crime No.28 of 1988 and issued First Information Report Ex.P.26.
29. PW2 is the cousin brother of PW1. He stated in his evidence that on 25.06.1988, himself, PW1, PW15, PW16, one Siva Reddy, K.Krishna Reddy, B.Ramanaiah and some others started from the village and went to Sirvel and got filed nominations for panchayat presidentship; that at about 12.00 noon, they started from Srivel and reached Rudravaram at 1.00 p.m.; that all the accused came opposite to them in a lorry between Rudravaram and Sirvel at about 12.30 p.m.; that they stopped at the house of Gangisetty Venkateswarlu in Rudravaram, from there, they went to the panchayat office by walk; that in between 2.15 and 2.50 p.m. they got filed five nominations with their candidates; that they started from the panchayat office at about 3.00 p.m. to go to Ammavarishala to attend a marriage by walk; that when they walked to a distance of 150 to 200 yards from the panchayat office, a lorry came from Allagadda side and stopped in front of them; that all the accused were present in the lorry and some other persons were also present in the lorry; that A.1 hurled a bomb against him and the same was hit on his right shoulder and exploded; that A.11 opened fire with his gun or rifle; that he received injury on his face, back, right shoulder and head with bomb explosion; that the deceased received gun shot wound; that all the other accused hurled bombs against them; that PW1, PW14, PW15 and PW16 and others received bomb injuries; that he also fell down after receiving bomb injury and within two seconds, he got up and saw the lorry going away with the accused and that they were taken to the Government Hospital, Nandyal and there, MOs 4 and 5 were seized by the police. In the cross-examination, PW2 admitted about recording of Ex.P.2 statement by the police.
30. PWs 3 to 8 did not support the case of prosecution. PW3 stated that he is a rice mill driver; that he does not know the accused; that about 10 years back at about 1.30 p.m., while he was going to purchase sugar, he found some persons gathered at a soda shop and he heard some sound; that he received injury on his right leg and police took him to the hospital.
31. PW4 stated that he knows the accused; that on 25.06.1988, he heard some bomb sound; that he found PWs 1 and 2 with bomb injuries; that he took PW2 to Yerragudidinne in a jeep, from there he took him to Government Hospital, Nandyal and from there PW2 was taken to Government General Hospital, Kurnool.
32. PW5 stated in his evidence that he was studying IX class about 11 years ago; that at about 1.30 p.m. while he was returning from school in Rudravaram near panchayat office, he heard a loud sound by the side of soda shop; that he received injury on his right thigh; that police took him to the police station and thereafter to the Government Hospital, Nandyal.
33. PW6 only identified A.1 and A.4 and he does not know the other accused. He stated in his evidence that he found PW2 with a bomb injury near panchayat office and he was taken PW2 to the hospital; that on the date of the incident, he noticed a lorry with a load of bamboo sticks at the time of bomb explosion and he did not notice any lorry with load of people.
34. PW7 also the resident of Rudravaram. He stated in his evidence that he knows A.1 and A.11 and he does not know the other accused; that he heard bomb explosion sound; that he heard that PWs 1 and 2 and another woman received bomb injuries at about 1.30 p.m.
35. PW8 is also the resident of Rudravaram. He stated in his evidence that he knows A.1 and A.11 and he does not know anything about this case.
36. PW14 is the resident of Ahobilam village, PW15 is the resident of Yerragudinne village and PW16 is the resident of Allagadda village. They stated in their evidence that on 25.06.1988, they along with PWs 1 and 2 and others went to Rudravaram village for filing nomination papers for the by-election of Rudravaram gram panchayat and after filing the nomination and while they were going towards the village bus stand, one lorry came from behind and they saw all the accused were present in the lorry; that A.1 hurled a bomb towards PW2 which was fell on back of his right side and exploded and caused injuries to PW2 and that PW11 fired with a gun and others hurled bombs, as a result they sustained injuries and the deceased received injuries with the gun shot and the registration number of lorry is AAQ 4744. Further, PW16 specifically stated that when they informed the incident to the police, the Sub-Inspector of Police namely Prabhakar and one Constable chased the lorry on a motorcycle and that the injured PW2 and others went towards Yerraguddidinne village in a jeep; that PW1, himself and some others went to the police station at Rudravaram and lodged a complaint and that the Sub-Inspector of Police shifted the injured persons in a lorry to the Government Hospital, Nandyal for treatment.
37. PW18 is the Junior Assistant in the office of District Collector at Kurnool. He stated in his evidence regarding the sanction given by the District Collector to prosecute A.11 for the offence punishable under Section 25(1)(a) of the Arms Act, 1959 and Ex.P.9 is the sanction order.
38. PW19 is the Sub-Inspector of Police, Allagadda Urban Police Station. He stated in his evidence that on 07.07.1988 when he was checking the vehicles at Allagadda, around 3.00 a.m. he found a lorry bearing registration No.AAQ 4744 coming from Nandyal side; that he recollected that the same lorry was involved in the commission of the Crime No.28 of 1988 of Rudravaram Police Station, then he stopped the lorry and handed over the lorry to the Inspector of Police, Allagadda for further investigation in this case along with special report and Ex.P.25 is the special report; that he sent a letter to the District Collector, Kurnool to accord permission to prosecute the accused for the offence punishable under Sections 3 and 5 of E.S. Act and Ex.P.8 is the said proceedings.
39. PW20 is the doctor, who treated PWs 1 and 2 and took the X-rays as per the requisition, stated in his evidence that Ex.P.12 is the seven X-rays and Ex.P.13 is the opinion; that he received another requisition on 30.06.1988 under Ex.P.14; that he took another three X-rays of the skull of PW2, which shows no abnormalities and Ex.P.15 is the three X-rays and Ex.P.16 is the opinion; that on the same day, he took two X-rays of skull of PW1, one is frontal and another is lateral and Ex.P.17 is the requisition, which shows abnormalities of radio opaque metallic foreign body in the soft tissues of frontal area and Ex.P.18 is the two X-rays; that he had taken another three X-rays under the same requisition i.e. Ex.P.17, which shows no abnormalities on other parts of the body of PW1 and those X-rays are marked as Ex.P.19 and Ex.P.20 is the opinion on Exs.P.18 and P.19 X-rays.
40. PW22 is the Investigating Officer. He stated in his evidence that he observed the scene of offence at the time of inquest and drew the rough sketch of the scene of offence; that from the scene of offence, he seized the remnants of explosion of bomb, which were found near the soda shop of Mala Kachanna; that he seized the bloodstained clothes of the deceased (M.Os. 6 to 9), bloodstained earth (M.O.10) and control earth (M.O.11) during inquest; that he also seized one pair of hawai chappals (M.O.12), thread pieces smelling sulphur (M.O.13), bloodstains (M.O.14) found where the injured Biri Rangamma was fallen on the ground and control earth (MO15) to M.O.14; that he sent the dead body of the deceased to the Government Hospital, Nandyal for post-mortem examination; that he visited the Government Hospital, Nandyal on 25.06.1988 at 8.00 p.m. and examined PWs 1,2,14 and 15 and recorded the statements of witnesses; that he gave a requisition to the Magistrate on 26.06.1988 and sent the case property to F.S.L. for analysis along with letter of advice; that on 30.06.1988, he arrested A.1, A.2, A.4, A.5, A.7 and A.8 at the house of A.1 and sent them for remand; that on 05.07.1988, he gave a requisition to the Judicial Magistrate of First Class, Allagadda for sending the particles of fired bullet found in the dead body of the deceased, which were preserved by the Medical Officer after post-mortem examination and Ex.P.32 is the requisition and Ex.P.33 is the letter of advice; that he gave Exs.P.32 and P.33 basing on the letter (Ex.P.34) that was addressed by the doctor to the Judicial Magistrate of First Class, Allagadda stating that a Constable should be deputed to take the metallic particles preserved by him from the wounds of the dead body and Ex.P.35 is the post-mortem certificate; that M.O.21 is the four pieces of metallic bullet parts received from F.S.L.; that on 07.07.1988, the Sub-Inspector of Police, Rudravaram arrested A.6, A.10 and A.12 at S.V. Picture Palace, Allagadda and sent them for remand; that on 08.07.1988, the Sub-Inspector of Police, Allagadda Urban Police Station (PW19) produced the lorry bearing registration No.AAQ 4744 along with its driver and cleaner; that he examined the driver and cleaner of the said lorry and recorded their statements; that on 12.08.1988, he gave requisition (Ex.P.36) to the Judicial Magistrate of First Class, Allagadda to send the rifle and spent cartridges which were seized by PW12 from A.11, to the expert and Ex.P.37 is the letter of advice; that later, he received the wound certificates of injured witnesses Exs.P.38 to P.48; that subsequently, he was transferred from Allagadda Circle, and he handed over the case file on 05.10.1988 to his successor.
41. PW23 was the Inspector of Police, Allagadda Circle. He stated in his evidence that on 15.01.1992, he took up investigation in this case and after receipt of F.S.L. reports, dated 13.10.1988 and 10.04.1990, he filed charge sheet into the Court.
42. PW24 is the doctor, who as per the instructions of Superintendent, Government Hospital, Nandyal, gave evidence regarding the post-mortem certificate and wound certificates issued by Dr. A.Narayana under Exs.P.35 and P.38 to P.48.
43. The prosecution mainly relied on the evidence of PWs 1, 2 and 14 to 16 to prove its case. The learned Public Prosecutor argued that the above witnesses sustained injuries in the hands of A.1 and A.11 and others and all of them are injured eyewitnesses and therefore, their evidence is trustworthy and corroborated with each other and relied on a decision reported in Mano Dutt and another Vs. State of Uttar Pradesh (2 supra), wherein the Honble Supreme Court made a reference to so many judgments and held in para 30 as under:
The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
The Honble Supreme Court in a case of Zahira Habibulla H.Sheikh and another Vs. State of Gujarat and others (1 supra), held as under:
If the lapse or omission is committed by the investigating agency or because of negligence, the prosecution evidence is required to be examined dehors such omissions, to find out whether the said evidence is reliable or not. The Court has to adopt an active and analytical role. The contaminated conduct of officials should not stand in the way of courts getting at the truth by having recourse to Sections 311, 391 CrPC, 1973 and Section 165 of the Evidence Act, 1872 at the appropriate and relevant stages and evaluating the entire evidence. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective and the designed mischief would be perpetuated with a premium to the offenders and justice would not only be denied to the complainant party but also made an ultimate casualty.
44. If the evidence of PWs 1,2 and 14 to 16 is concerned, they are injured eyewitnesses. Apart from the said witnesses, PWs 3 to 8 are also eyewitnesses and some of them are injured witnesses according to the prosecution, but they did not support the case of prosecution. Even PWs 3 to 8 did not describe the incident also and they stated only about hearing the loud sound and receiving of the injuries. As per the evidence of PW22 Investigating Officer, scene of offence is situated at Rudravaram bus stand in the open space to the south of the house of Lingam Atchaiah and around the scene of offence, there were residential houses, kirana shops, huts, soda stand, beedi bunk, etc.
45. In this case, the prosecution version is on 25.06.1988, when PWs 1, 2 and 14 to 16 and others went to panchayat office in connection with filing of nominations for panchayat presidentship post at 3.00 p.m. and when they were returning and going towards bus stand at Rudravaram, they noticed the accused coming in a lorry, stopped in front of them and attacked them with bombs, due to which they sustained injuries. After receiving injuries, immediately PW1 gave a complaint under Ex.P.1. PW2 also received injuries and he was taken to the hospital and there, he gave a statement under Ex.P.2 to the H.C.619.
46. Ex.P.1 was given at 3.30 p.m. at an earlier point of time by PW1 and his brother PW2 gave a statement at about 7.00 p.m. Ex.P.1 was registered as First Information Report under Ex.P.26 by the Sub-Inspector of Police by name Prabhakar Rao, who was not examined by the prosecution. It is in the evidence of PWs 1 and 2 that after hearing the sound of bombs, the Sub-Inspector of Police and Head Constable came to the spot and they chased the accused on a two wheeler and they went to some extent and unable to catch them, they returned back, but the prosecution has not examined both the said witnesses.
47. A perusal of Ex.P.1 complaint shows that all the accused came in a lorry bearing registration No.AAQ 4744, got down and A.11 fired with a gun and that all the accused threw the bombs, as a result PW1 and others sustained injuries. As per Ex.P.1, all the accused threw the bombs on PW1 and others and as per Ex.P.2, A.1 threw the bomb on PW2 and after receiving the said bomb injuries, PW2 was taken to the hospital. As per the wound certificate, PW2 sustained one grievous injury and three simple injuries.
48. Admittedly, PWs 1 and 2 are closely related and as per the evidence of PWs 1, 14, 15 and 16, they received only simple injuries. A perusal of recitals in Exs.P.1 and P.2, it is evident that PW1 not stated in Ex.P.1 that A.11 fired with his gun on the deceased and the deceased received the gun shot injury. Ex.P.1 is silent that A.11 is in possession of the gun and opened fire on the deceased on the date of the incident.
Admittedly, the accused party belonged to Telugu Desam party and PWs 1 and 2 and others belonged to Congress party. Prior to the incident, PWs 1 and 2 also got licensed rifles and double barrel guns and they obtained them for their defence and on the date of incident, they carried those weapons along with them. Further, PWs 1 and 2 admitted that whenever they go outside, they carried the same and on the date of the incident also, they carried those weapons, but strangely they kept the same at the house of one Gangisetty Venkateswarlu (List Witness No.12), who is the father of PW6, for the reasons best known to them. The said Gangisetty Venkateswarlu was not examined by the prosecution. Likewise, PWs 1 and 2 also stated that they kept the jeeps at the house of the said Gangisetty Venkateswarlu and they were coming by walk from panchayat office towards bus stand on the date of the incident.
49. Now, it has to be seen how far the witnesses are speaking truth regarding the injuries sustained by them. According to PW1, all the accused hurled the bombs at them and some exploded. PW2 stated that he cannot say how many bombs exploded and he also cannot say who hurled bombs against them. PW14 admitted that police registered the case against him in the year 1989 on the allegation that he was in possession of country made bombs. PW16 in his cross-examination stated that he cannot say how many bombs were hurled by each one of the accused and some of the bombs exploded on the persons and some of them exploded after falling on the ground and some might have fallen on them unexploded. If the evidence of Investigating Officer PW22 is taken into consideration, he found bloodstains underneath the dead body of the deceased and he did not find bloodstains at any other place.
50. The contention of the learned Public Prosecutor that the injuries received by PWs 1, 2 and 14 to 16 are due to the attack made by the accused and therefore, the accused are liable for punishment. On the other hand, the learned counsel for the respondents/accused opposing the manner of incident itself, contended that if really 10 to 20 bombs exploded as stated by the witnesses, PWs 1, 2 and 14 to 16 would not have received the simple injuries only, but it would cause severe injuries than what they received.
51. It is no doubt true that the bombs are used to cause extensive damage to the opponent parties. According to the prosecution, the accused used the bombs to attack PWs 1, 2 and 14 to 16. If really, the bombs were hurled and exploded, naturally, PWs 1 and 14 to 16 would not have received simple injuries and PW2 would not have received one grievous injury only. Further, if the scene of offence is taken into consideration, the Investigating Officer has not noticed any bomb remnants, except one particular place.
52. PW16 in the cross-examination admitted that he filed nomination papers as an independent candidate against A.1 and others for Nandyal parliamentary constituency, in which A.1 succeeded and he lost the elections. PW16 further admitted that he also contested against S.V.Nagi Reddy, who is the junior paternal uncle of A.1 in gram panchayat elections and later on, he withdrew from the contest, but he denied that he is politically opposed to A.1 and A.11. PW16 further admitted that he was co-respondent in a security case filed by the police in the Court of Sub-Divisional Magistrate at Nandyal and police opened rowdy sheet against him.
53. Further, the evidence of PWs 14 to 16 clearly established that they are the followers of PWs 1 and 2, who are inimical with the accused persons. PWs 14 and 15 admitted in their evidence that criminal cases are pending against them as they are in politics. PW16 stated that he cannot give the names of the persons who accompanied on the date of occurrence from Yerragudidinne village along with PWs 1, 2 and 15. Further, PW16 stated that he cannot give the registration numbers of three jeeps in which they traveled on the date of incident. Therefore, the evidence of PWs 14 to 16 shows that on the date of incident, their presence with PWs 1 and 2 is doubtful. The Investigating Officer in his cross-examination stated that in Ex.P.1, PW11 not stated about accompanying of PW15 with PWs 1 and 2 from Yerragudidine to Rudravaram, his presence at the time of occurrence and also about receiving the injuries.
54. The learned counsel for the respondents/accused argued that in faction cases like this, there is every possibility of causing delay in sending First Information Report to the Court for manipulating the record and as the deceased is no other than the cousin of PWs 1 and 2 and sitting M.L.A. of Allagadda and strong opponent of accused persons, influenced the police in sending First Information Report to the Magistrate with an abnormal delay. Admittedly, after the incident, the Sub-Inspector of Police by name Prabhakar reached the scene of offence along with a Constable on two-wheeler, chased the lorry to some distance and could not succeed in catching the culprits. Strangely, the said Sub-Inspector of Police was not examined by the prosecution, but the prosecution stated that he was no more. The Constable who accompanied the Sub-Inspector of Police was also not examined, for the reasons best known to the prosecution.
55. Further, the evidence of prosecution witnesses shows that they came from Yerragudidine village in three jeeps, therefore there is no difficulty in sending the First Information Report to the Court in time. PW1 gave Ex.P.1 at about 3.30 p.m., the time of offence is 3.00 p.m. to 3.15 p.m. and F.I.R. reached the Magistrate Court on the next day at 00.30 hours through P.C.1076 with a delay of 9 hours and the distance between the Court and the Police Station is 18 Kms. If really, Ex.P.1 is registered at about 3.30 p.m., there would not be any problem for the police in sending the same to he Court by 3.30 p.m. itself. Further, PW1 in his cross-examination admitted that he completed the drafting of Ex.P.1 by 3.30 p.m., therefore, Ex.P.1 reaching the Police Station at 3.30 p.m. is false and the prosecution has to explain how Ex.P.1 was registered at 3.30 p.m. by the Sub-Inspector of Police, Rudravaram. Therefore, the prosecution failed to explain the above discrepancy, which is fatal to the case of prosecution.
56. Further, as per the evidence of PW22 Investigating Officer, there is an endorsement in Ex.P.49, according to which the alleged incident took place while the de facto complainant and his followers were going for marriage to Rudravaram village, therefore, it further falsifies the case of prosecution that PW1 and his followers were returning from panchayat office.
57. The learned Public Prosecutor argued that the trial Court has not believed the plea of alibi taken by A.1 and A.11, but the learned counsel for the respondents/accused argued that the V Additional Sessions Judge, Nandyal disposed of C.C.No.1 of 1999 on 16.03.2006 accepting the plea of alibi of A.1 and acquitted him. Insofar as the contention of the learned counsel for the respondents is concerned, it is out of the record and nothing has been placed in writing, and therefore, it cannot be considered at this stage.
58. From a perusal of entire evidence on record, it is clear that the medical evidence is against the ocular evidence of PWs 1, 2 and 14 to 16 and also post-mortem examination report of the deceased. Further, the prosecution failed to explain the delay in registering the First Information Report and sending the same to the Court. Further, the presence of PW15 is also doubtful at the time of occurrence in view of the evidence of PW22. There is a discrepancy in Exs. P.1 and P.2 and also regarding the commission and the manner of the alleged offence by the accused. Therefore, the trial Court rightly acquitted all the accused by extending the benefit of doubt and the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Hence, the appeal is devoid of merit and is liable to be dismissed.
59. In the result, the Criminal Appeal is dismissed, confirming the judgment dated 01.11.2004, passed by the learned III Additional Sessions Judge, Kurnool at Nandyal, in S.C.No.330 of 1993.
60. Miscellaneous Petitions pending, if any, in this appeal shall stand closed.
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(K.C. BHANU, J)
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(ANIS, J) 10.02.2014