Andhra Pradesh High Court - Amravati
D.Naga Gopal Reddy, Kurnool Dt., vs The State Of Ap., Rep Pp., on 31 January, 2025
Author: K.Suresh Reddy
Bench: K.Suresh Reddy
THE HON'BLE SRI JUSTICE K.SURESH REDDY
AND
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL APPEAL Nos.383 of 2017, 505 of 2017 &
806 of 2017
COMMON JUDGMENT:
(per the Hon'ble Sri Justice K.Sreenivasa Reddy) These Criminal Appeals are preferred against the judgment dated 09.03.2017 in Sessions Case No.379 of 2014 on the file of the IV Additional District Judge, Kurnool.
2. Originally, a case in crime No.56 of 2013 of Dhone Rural Police Station was registered against A.1 to A.13. Police, after completion of investigation, deleted names of A.2 to A.4 and A.6, and filed charge sheet against the other accused viz. A.1, A.5, A.7 to A.13. The learned Sessions Judge framed charges for the offences - punishable under Sections 148 read with 149; 302 read with 149; 307 read with 149 and 427 read with 149 of the Indian Penal Code, 1860 (for short, 'IPC') against A.1, A.5, A.7 to A.13. After full-fledged trial, vide the 2 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 impugned judgment, the learned Sessions Judge found A.5, A.7, A.8, A.9, A.11, A.12 and A.13 not guilty of the offences punishable under Sections 302 read with 149 IPC; 307 read with 149 IPC and 148 read with 149 IPC and found A.1, A.5, A.7 to A.13 not guilty of the offence punishable under Section 427 read with 149 IPC, and accordingly, acquitted them of the respective charges.
3. The learned Sessions Judge found A.1 and A.10 guilty of the offences punishable under Sections 302 read with 149 IPC, 148 read with 149 IPC and 326 read with 149 IPC and accordingly convicted them of the said offences. The learned Sessions Judge sentenced A.1 to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for a period of six months, for the offence under Section 302 read with 149 IPC; to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for a period of three months, for the 3 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 offence under Section 326 read with 149 IPC, and to undergo simple imprisonment for a period of two years for the offence under Section 148 read with 149 IPC.
The learned Sessions Judge sentenced A.10 to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for a period of six months, for the offence under Section 302 read with 149 IPC; to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for a period of three months, for the offence under Section 326 read with 149 IPC, and to undergo rigorous imprisonment for a period of two years for the offence under Section 148 read with 149 IPC. All the sentences were directed to run concurrently.
4. Challenging the conviction and sentence, A.10 preferred Criminal Appeal No.383 of 2017 and A.1 preferred Criminal Appeal No.505 of 2017 before this Court. Challenging the acquittal of A.5, A.7 to A.9 and 4 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 A.11 to A.13, P.W.4 preferred the Criminal Appeal No.806 of 2017.
5. Substance of charge against the accused is that on 14.04.2013 at about 10.00 PM, near in the outskirts of Yerraguntla village after crossing Dhone, at water-pipes causeway near culvert on Yerraguntla village-Dhone road, all the accused formed themselves into unlawful assembly and caused death of Mallu Sreenivasa Reddy (deceased), and in the course of same transaction, the accused attempted to commit murder of P.W.4.
6. Case of the prosecution is as follows:
(a) P.W.4 is father of Mallu Sreenivasa Reddy (deceased). Marriage of the deceased was formed with L.W.5-Sujatha about 14 years prior to the incident.
P.W.1 is co-brother of the deceased. P.W.3 is sister of the deceased. She was married in the year 1998 to one Sivasankar Reddy, son of Chinna Subba Reddy of Chinna Malkapuram village, Dhone mandal. In the year 5 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 2002, her husband and her father-in-law died, leaving Sudheendranatha Reddy, brother-in-law of the deceased, who is of unsound mind, and sister-in-law of the deceased by name Bhavani, who is deaf and dumb by birth. In the year 2004, in the panchayat at the behest of the deceased and A.6, partition of the properties was effected between P.W.3, Sudheendra Reddy and the said Bhavani, and equal shares were distributed among them. Ever since the partition, mother-in-law of P.W.3 Thirupalamma and A.6 did not extend their assistance in doing mining business of P.W.3. In the year 2005, the deceased, P.Ws. 1 and 2 came and stayed with P.W.3 and extended their assistance in mining business of P.W.3. In the year 2006, A.1, with an evil intention of grabbing properties of P.W.3, married sister-in-law of P.W.3 Bhavani, who is deaf and dumb. A.1 also performed marriage of his sister Malleswari with Sudheendra Reddy, who is brother-in-law of the deceased. A.1 used to pick up quarrel with P.W.3 frequently to have shares for him, Sudheendra Reddy 6 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 and Bhavani, and A.6 used to support A.1. Cases were lodged against each other by P.W.3 and A.1, and ill- feelings developed in the mind of the other accused in this regard and they were waiting for an opportunity to do away with the life of the deceased. A.9 sought assistance of A.13, who is driver of Scorpio vehicle of the deceased to inform movements of the deceased, promising to pay Rs.1.00 lakh after accomplish-ment of the task and Rs.10,000/- was paid as advance.
(b) On 14.04.2013 at about 5.00 PM, the deceased, P.Ws.1, 2 and 4, A.13-Driver went to Kurnool by a new unregistered Scorpio vehicle to discuss about a criminal case with Advocate. After completion of the work, they were returning to their village by the same vehicle. A.13 was driving the vehicle and the deceased was sitting beside the driver, while P.Ws.1, 2 and 4 were sitting in middle seat of the vehicle behind the deceased. By 10.00 PM, they reached outskirts of Yerraguntla village after crossing Dhone, to go to Chinna Malkapuram village, and when the vehicle was at water-pipes causeway near 7 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 culvert on Yerraguntla village-Dhone road, an Ash colour Innova vehicle bearing registration No.AP21X 2346 came in opposite direction to their vehicle and it was kept opposite to the Scorpio vehicle of the deceased. On that, A.13 stopped the vehicle. In the focus of head lights of the Scorpio vehicle, P.Ws.1, 2 and 4 saw A.1, A.5, A.9, A.8, A.10, A.11, A.12, A.7, A.2, A.3 and A.4. At the instigation of A.6, they got down from their vehicle, formed themselves into an unlawful assembly armed with hunting sickles, knives and iron pipes, and in prosecution of their common object to kill the deceased, came to attack the deceased and others. Being afraid of the accused, P.Ws.1 and 2 opened the door of the Scorpio vehicle and ran towards thorny trees on the road side. P.Ws.1 and 2 saw the deceased, P.W.4 and the driver in the vehicle. The accused surrounded the Scorpio vehicle and tried to open the door of the vehicle, but as the doors were on central lock, they could not open the door. A.1 broke left side second window glass with hunting sickle and shouted 'Champandiraa ee na 8 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 kodukulanu maa asthulu vaariki kavalanta okkarni kudaa vadalakandi'. The deceased, by opening the door of the vehicle, tried to run towards Chinna Malkapuram side. A.1 hacked on the back of the head of the deceased with hunting sickle. A.9 sprinkled chilly powder on the eye of the deceased. A.1, A.5, A.9, A.12 and A.11 hacked the deceased with hunting sickles indiscriminately. On that, the deceased fell down with bleeding injuries. In the mean while, P.W.4 opened the door and pushed aside A.10 who was standing in front of the door of the vehicle, and when A.10 tried to hack P.W.4 with hunting sickle and A.8 tried to sprinkle chilly powder on the face of P.W.4, he leaned towards frontwards. Then, A.10 hacked on the back of head of P.W.4 and caused injury. A.7 beat P.W.4 with an iron pipe. A.10, A.8 and A.7 hacked him with hunting sickles and beat him. P.W.4 sustained injuries on head, left hand, nose, left side of chin, right thumb and chest. A.1 uttered with other accused 'veedu chachinadule' and threw the deceased besides culvert on road side and all the accused left in 9 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Innova vehicle towards Dhone. P.Ws.1 and 2 saw the entire episode from road side thorny bushes and observed A.13, who was in Scorpio vehicle, walking away by getting down from the vehicle after witnessing the attack.
(c) P.Ws.1 and 2 found that P.W.4 was groaning with injuries and rang up 108 Ambulance to shift the deceased and P.W.4 to hospital. The deceased succumbed to the injuries on the spot. P.W.4 was first shifted to Community Health Centre, Dhone and from there to Gowri Gopal Hospital, Kurnool.
(d) Basing on a report lodged by P.W.1 on 14.04.2023 at 23.50 hours, Sub Inspector of Police, Dhone Rural police station registered a case in crime No.56 of 2013 for the offences punishable under Sections 147, 148, 307, 302 read with 149 IPC and submitted copies of FIR to all concerned. On 15.4.2013 at 7.00 hours, inquest was held over the dead body of the deceased. Certain material objects were also seized. On 10 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 14.04.2013 at 8.00 PM, A.9 and A.12 purchased 1 kg chilli powder from the kirana shop of L.W.7-Papi Reddy.
(e) The Medical Officer, Community Health Centre, Dhone-P.W.7, who conducted autopsy over the dead body of the deceased, opined that cause of death of the deceased is hemorrhage and shock and due to multiple trauma and time of death is 12 to 18 hours prior to postmortem examination. P.W.8-Medical Officer, who treated P.W.4, opined that the injuries sustained by P.W.4 are grievous in nature.
(f) During the course of investigation, police arrested A.1, A.5, A.7 to A.13 and pursuant to their confession, seized the crime vehicle and crime weapons. As it came to light during investigation that role of A.2 to A.4 and A.6 was not established, in association with other accused, the investigating officer deleted them from the array of the accused, and filed charge sheet as against the other accused.
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KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017
7. In support of the case of prosecution, P.Ws.1 to 10 were examined and Exs.P1 to P15 were got marked, besides case properties M.Os.1 to 11. After completion of prosecution side evidence, the accused were examined under Section 313 CrPC to explain the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same. On behalf of defence, D.Ws.1 and 2 were adduced and Exs.D1 to D14 were got marked. Ex.C1-General Diary dated 3.5.2013 of Krishnagiri police station was marked as Court document. After appreciating the evidence on record, the learned Sessions Judge convicted and sentenced the appellants/A.1 and A.10, while acquitting the other accused, as stated supra. Challenging the same, the present Criminal Appeals are preferred.
8. Heard Sri R.Basant, learned senior counsel appearing for Sri Varun Byreddy, learned counsel for the appellant/A.10 in Criminal Appeal No.383 of 2017; Sri 12 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 P.Veera Reddy, learned senior counsel appearing for Smt. Sodum Anvesha, the learned counsel for the appellant/ A.1 in Criminal Appeal No.505 of 2017; Sri B.Adinarayana Rao, learned senior counsel appearing for Sri P.Rajesh Babu, learned counsel for the appellant/P.W.4 in Criminal Appeal No.806 of 2017; Sri Marri Venkata Ramana, learned Additional Public Prosecutor appearing for the respondent-State.
9. Learned senior counsel Sri R.Basant, appearing for Sri Varun Byreddy, learned counsel for the appellant/A.10 in Criminal Appeal No.383 of 2017 submitted that entire case of prosecution rests on the solitary testimony of P.W.4, who is an interested witnesses, being none other than father of P.W.3 and the deceased; that P.Ws.1 and 2, who are alleged eye- witnesses to the incident, did not support the case of prosecution and they were treated as hostile. The learned senior counsel further submitted that right from the beginning, case of the defence is that P.W.4, the alleged injured witness, was not at all present at the time 13 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 of scene of occurrence at the relevant point of time of the incident, and that he is planted by P.W.3 in order to see to it that the accused are convicted, and that his name has been shown in the First Information Report, after due deliberations and confabulations. According to the learned senior counsel, the First Information Report itself is shrouded with doubt and hence much credence cannot be given to such information.
The learned senior counsel further contended that P.Ws.1 and 3 together went to police station and lodged the report against A.1 to A.6 only, but during the course of investigation, the investigating agency implicated A.7 to A.13 at a belated stage and deleted names of A.2 to A.4 and A.6. According to the learned senior counsel, the incident did not take place as suggested by the prosecution and the aforesaid case has been cooked up only to see to it that the accused are convicted. Hence, it is prayed to set aside the conviction and sentence recorded by the learned Sessions Judge against the appellant/A.10.
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KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017
10. Learned senior counsel Sri P.Veera Reddy, appearing for Smt. Sodum Anvesha, learned counsel for appellant/A.1, while reiterating the submissions made by the learned senior counsel Sri R.Basant, submitted that motive is a double edged weapon. He submits that in view of property disputes and in order to settle scores, P.W.3 projected the case in such a way that the P.W.4 was present at the scene of offence at the relevant point of time of the incident, after due deliberations and with the help of the investigating agency. The learned senior counsel has taken the Court to the evidence of P.Ws.3 and 4 and submitted that the accused were implicated in the case at the instance of P.W.3. The learned senior counsel submitted that there is any amount of ambiguity with regard to the Doctor examining P.W.4. He further emphasized that the Doctor, who examined P.W.4, in Gowri Gopal Hospital, Kurnool was on night duty in Government General Hospital, Kurnool. According to the learned senior counsel, P.W.8-Doctor stated that he was 15 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 doing night duty in Government General Hospital. He further submitted that there is no post of Consultant Medical Officer in Gowri Gopal Hospital, Kurnool. The learned counsel further submitted that blood stained clothes of P.W.4 were not seized and P.Ws.4 and 8 are planted witnesses. According to the learned senior counsel, P.W.4 cannot be placed in the category of 'a wholly reliable witness', and in the absence of any corroboration, it is not safe to place an implicit reliance on the solitary testimony of P.W.4 to convict the accused. Hence, it is prayed to set aside the conviction and sentence recorded by the learned Sessions Judge against the appellant/A.1.
11. On the other hand, learned Additional Public Prosecutor Sri Marri Venkata Ramana appearing for State contended that the investigation conducted by the officers is fair enough. According to him, the investigating agency, after conducting investigation, deleted names of A.2 to A.4 and A.6 in the charge sheet. He further emphasized that according to P.W.4, A.1, A.5, 16 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 A.6, A.7, A.18 and A.10 were at the scene of offence and attacked the deceased when P.W.4 was sitting in the vehicle, and specific overt-acts were attributed to A.10 by P.W.4. It is his submission that the evidence of P.W.4 is consistent and reliable, and his presence at the relevant point of time of the incident is natural and probable, and the medical evidence supports the ocular testimony of P.W.4 that he is an injured witness, and the learned Sessions Judge rightly appreciated the evidence on record.
12. Learned senior counsel Sri B.Adinarayana Rao, appearing for Sri P.Rajesh Babu, learned counsel for appellant in Criminal Appeal No.806 of 2017 strenuously contended that the deceased is brother of P.W.3. P.Ws.1 and 2 are also related to P.W.3. The deceased went to Chinna Malkapuram village from Nandyal only to assist P.W.3 in her business activities. The alleged incident is said to have taken place at 10.00 PM and the First Information Report came to be registered at 11.50 PM, and the same reached the 17 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Magistrate concerned at 6.40 AM on the next day morning. There is absolutely no delay in lodging the report in the police station so as to say that the First Information Report was brought into existence after due deliberations.
The learned senior counsel emphasized that according to the prosecution case, 108 Ambulance went and picked up P.W.4 and took him to the Community Health Centre, Dhone, and in connection with that, the learned senior counsel stated that there is no necessity to produce records pertaining to 108 Ambulance. The learned senior counsel submitted that P.W.4 regained consciousness in the evening hours of the next day i.e.15.4.2013, and merely because the investigating agency could not examine P.W.4 on the said date, would not in any way prejudice the accused or tilt the case of prosecution. The learned senior counsel further submitted that merely because the papers pertaining medical records of P.W.4 have not been seized by the investigating agency or some lacunae in the investigation, 18 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 would not in any way go to the root of the case so as to usurp the case of prosecution. The learned senior counsel submitted that P.W.4 is an injured witness and Ex.P8-wound certificates substantiates the same, and being father of the deceased, it is natural that he follows the deceased to meet the advocate in Kurnool, and hence, his presence cannot be doubted at the time of the incident, and hence, it can be inferred that the alleged incident took place as suggested by the prosecution. The learned Sessions Judge rightly convicted and sentenced the appellants and there are no grounds to interfere with the same.
13. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the accused for the respective charges levelled against them beyond all reasonable doubt?
14. P.Ws.1 and 2 were projected as eye witnesses to the incident. P.Ws.1 and 2 are related to the deceased. P.W.1 is co-brother of the deceased. The deceased is son of senior paternal uncle of P.W.2. 19
KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Coming to evidence, P.Ws.1 and 2 did not support the prosecution case and resiled from their earlier version. They were treated hostile by the prosecution. Though they were cross-examined, nothing has been elicited in their testimony to connect the accused with the offences alleged.
15. Entire case rests on the solitary testimony of P.W.4. P.W.4 is none other than father of the deceased. When a case rests upon the solitary testimony of a witness, it must be unimpeachable, true and trustworthy, and his presence at the relevant point of time of the incident must be established. If the evidence of P.W.1 is put in the category of wholly reliable, then there is no legal bar to base a conviction solely on the testimony of P.W.1. On this aspect, it is pertinent to refer to a decision reported in Vadivelu Thevar v. the State of Madras1, wherein it was held thus:
"Generally speaking oral testimony in this context may be classified into these categories, namely:
(i) Wholly reliable
(ii) Wholly unreliable
1
AIR 1957 SC 614
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CrlA No.383 of 2017, 505 of 2017 & 806 of 2017
(iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion.
It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial." It is also pertinent to refer to a decision in Mahendra Singh and others v. State of Madhya Pradesh2, wherein, while reiterating the aforesaid principle laid down in Vadivelu Thevar's case (1 supra), it is held thus:
(paragraph 13).
"13. It could thus be seen that this Court has found that witnesses are of three types viz. (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. When the witness is "wholly reliable", the court should not have any difficulty inasmuch as conviction or acquittal could be based on the testimony of such single witness.2
(2022) 7 SCC 157 21 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Equally, if the court finds that the witness is "wholly unreliable", there would be no difficulty inasmuch as neither conviction nor acquittal can be based on the testimony of such witness. It is only in the third category of witnesses that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
16. In the case on hand, right from the beginning, case of the defence is that P.W.4 is a planted witness and his evidence is wholly unreliable. If the testimony of a solitary witness is found to be wholly reliable, there is no legal impediment to base a conviction on the strength of the said witness. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact.
17. P.W.4 is father of the deceased. P.W.3 is daughter of P.W.4. It is his evidence that he knows all the accused in this case. In the year 1998, marriage of his daughter P.W.3 was performed with one Siva Sankar Reddy, son of Chinna Subba Reddy of Chinna 22 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Malkapuram. In the year 2002, her husband and father- in-law died. Thereafter, her mother-in-law divided the family properties, wherein P.W.3 got one share. Brother of her husband Surendra Reddy and his sister Naga Bhavani got one share each. In order to manage the mining business, P.W.3 sought assistance of the deceased, and accordingly, the deceased went to her village and was assisting. P.Ws.1 and 2, who are co-brother of the deceased and son of younger brother of P.W.4 respectively, also went to Chinna Malkapuram to assist P.W.3. A.1 married Naga Bhavani, who is sister of husband of P.W.3 Siva Sankar Reddy, and performed marriage of his sister Malleswari with Surendra Reddy, who is mentally ill, to grab their properties. A.1 was managing properties of his wife and also of Surendra Reddy.
In the year 2008, P.W.3 got mining lease in respect of Ac.30.00 cents, which stood in the name of her husband, transferred in her name and obtained permission for iron ore. Though A.1 claimed share in the mining lease to said Naga Bhavani and Surendra Reddy, P.W.3 and the deceased did not agree therefor. On that, A.1 bore grudge 23 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 against them. He also got false criminal cases filed against P.W.3, the deceased, P.W.2 and others. As one case was posted to 15.4.2013 in Kurnool court, himself, the deceased, P.Ws.1 and 2 went to Kurnool by Scorpio vehicle driven by A.13, to consult their counsel. He did not go to advocate due to ankle pain and was sitting in the vehicle. At that time, A.13-driver talked with some people many times over phone, and some times, A.13 was telling about their starting. After the deceased, P.Ws.1 and 2 came back, they started back to their village between 8.30 PM and 9.00 PM. The deceased was sitting beside the seat of the driver in the vehicle. P.W.4 was sitting exactly on the rear seat. P.W.1 was sitting beside P.W.4 and P.W.2 was sitting beside P.W.1. The vehicle reached Erraguntla after crossing Dhone town and when they reached water pipe line point, a grey colour Innova vehicle came in opposite direction and was stopped across road. On that, A.13 applied brakes and stopped their vehicle. Some people, who were armed with hunting sickles, knives and pipes, got down from the said vehicle. On seeing them, P.Ws.1 and 2 opened the door of their vehicle and ran away. 24
KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 P.W.4 identified the said persons as A.1, A.5, A.9, A.11, A.12, A.7, A.8 and A.10. The said persons surrounded their vehicle and tried to open vehicle doors, but they could not open the doors. A.1 broke left side door glass of the vehicle and instigated to kill them saying as to how dare to take his properties. On that, the deceased opened the door, got down from the vehicle and tried to run towards Chinna Malkapuram. Then, A.1 hacked the deceased on his head with hunting sickle. Inspite of the blow, the deceased tried to proceed towards Chinna Malkapuram. On that, A.9 sprinkled chilly powder into his eyes by coming from opposite direction. Immediately others beat the deceased with hunting sickles and knives, and on that the deceased fell on ground. On seeing that, P.W.4 tried to open the door of his side, but A.10 stood against the door. However, P.W.4 pushed the door and tried to escape from that place. Then, A.10 hacked P.W.4 with a hunting sickle on his head; A.8 sprinkled chilly powder. But, P.W.4 bowed his head and proceeded further. On that, A.7 beat P.W.4 on his waist and legs with iron pipes. A.10 and A.8 attacked P.W.4 and beat him with hunting sickles and 25 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 knives. On that, nose and left hand of P.W.4 were cut, and he got reeling sensation. He observed A.13, driver of the vehicle, leaving that place along with A.1 and others. He does not know what happened thereafter.
P.W.4 further deposed that he regained consciousness in the evening hours of Monday i.e.15.4.2013. On the next day, police came and enquired him.
18. The accused, the material prosecution witnesses and the deceased are related to each other. There were disputes among them in connection with properties that fell to their respective shares. In connection with that, civil suits have been filed. By virtue of the suits that have been filed against each other, it would go to show that they were at logger heads against each other. In such circumstances, motive aspect would become a double edged weapon and the same has to be scrutinized.
19. On a perusal of entire evidence on record, it is evident that P.W.1 is the person who went along with 26 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 P.W.3 to police station to lodge the report. It is pertinent to mention here that P.W.1 is the person who lodged the report to police. P.W.1 did not support the case of prosecution and was treated hostile. In cross- examination by defence, P.W.1 deposed that he does not know contents of Ex.P1 or its correctness, and only on the narration of P.W.3, he wrote the report, and it was reduced into writing by him at Dhone Urban police station in the presence of P.W.10-Inspector of Police. In such circumstances, the First Information Report lodged by P.W.1 would be hit by Section 157 of the Indian Evidence Act, 1872 and much importance cannot be attached to it and the same cannot be used as an independent evidence in support of any other evidence.
20. This Court perused the evidence of P.W.4 carefully. According to P.W.4, on the date of the incident, he went to Kurnool along with the deceased, P.Ws.1 and 2 and A.13 by Scorpio vehicle to consult their advocate Sri B.Nagalakshmi Reddy. P.W.4 did not go to meet the counsel and he was sitting in the vehicle 27 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 and waiting for the deceased and P.Ws.1 and 2. At that relevant point of time, he observed A.13 speaking with some other people over phone many times. P.W.4 further stated that due to ankle pain, he did not go along with the deceased and P.Ws.1 and 2, to meet their counsel as the office of the counsel is in upstairs.
In cross-examination, P.W.4 stated that he retired from service and after retirement, his life style is taking food, watching telephone and sleeping and nothing else. P.W.4 is aged about 68 years. In such circumstances, there is any amount of ambiguity as to why P.W.4 accompanied the deceased and P.Ws.1 and 2 to Kurnool, only to meet the counsel.
21. Case of the prosecution is that after the incident, 108 Ambulance came to the scene of occurrence and took P.W.4 to the Community Health Center, Dhone. There is absolutely no material placed on record to show that 108 Ambulance went to the scene of occurrence and shifted P.W.4. It is pertinent to mention here that if really P.W.4 was treated in 28 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Community Health Center, Dhone, it is essential that the investigating agency has to produce medical records pertaining to treatment of P.W.4 in the Community Health Center, Dhone. On a perusal of the record, this Court found that there is absolutely no such record seized by the investigating agency. The prosecution is silent as to why the investigating agency did not seize the records pertaining to the Ambulance and the medical records pertaining to P.W.4 at the Community Health Center, Dhone. If really P.W.4 was treated at the Community Health Centre, Dhone, obviously there would have been some medical record to show that he was treated in the hospital. Non-seizure or non-production of the said records would raises one's eye brow and creates any amount of suspicion as to presence of P.W.4 at the relevant point of time of the incident.
22. It is stated that after treatment that has been given to P.W.4 in the Community Health Centre, Dhone, he was taken to Gowri Gopal Hospital, Kurnool, and he reached the said Hospital at 2.40 AM on 15.4.2013. 29
KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 P.W.8, who worked as Casualty Medical Officer-cum- Civil Assistant Surgeon, Government General Hospital, Kurnool, treated P.W.4 and issued Ex.P8-wound certificate. This Court perused Ex.P8-would certificate, which was issued in the name of 'Gowri Gopal Intensive Care Unit Private Limited'. There is any amount of ambiguity whether P.W.4 was treated in Gowri Gopal Hospital or Gowri Gopal Intensive Care Unit Private Limited. The prosecution has not come out with explanation as to whether Gowri Gopal Intensive Care Unit Private Limited is a part of Gowri Gopal Hospital or not. The said wound certificate Ex.P8 is shrouded with doubt whether Gowri Gopal Intensive Care Unit Private Limited and Gowri Gopal Hospital is one and the same. That apart, Ex.P8 does not contain the date on which it was issued.
23. Further more, P.W.4 stated that he was in Hyderabad Hospital as inpatient for about 10 days. There is no connection as to what P.W.4 stated and to the case of prosecution as to whether P.W.4 was treated 30 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 either in Gowri Gopal Intensive Care Unit Private Limited or Gowri Gopal Hospital or the Hospital at Hyderabad. According to the learned senior counsel Sri B.Adinarayana Rao, much importance need not be given to the said argument for the reason that there is wound certificate Ex.P8 issued by P.W.8 and P.W.4 was taken to Gowri Gopal Hospital, Kurnool at 2.40 AM. However, there is so much variance from one statement to the other and the case of the prosecution.
24. There is a presumption under law that the accused is presumed to be innocent unless contrary is proved. It is settled proposition that Indian Courts rely upon the principle that prosecution has to prove its case beyond reasonable doubt. From the beginning, defence is disputing presence of P.W.4 at the relevant point of time of the incident stating that he is a planted witness. Therefore, burden heavily lies on the prosecution to establish his presence by producing the connecting links. In case of any ambiguity on the part of the 31 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 prosecution, it give rise to a doubt whether the incident had taken place as suggested by the prosecution. In the case on hand, in the absence of any explanation on the part of the prosecution, there is so much variance as to whether P.W.4 took treatment in Gowri Gopal Hospital, Kurnool since Ex.P8-wound certificate stands in the name of Gowri Gopal Intensive Care Unit Private Limited, or in the Hospital in Hyderabad as stated by P.W.4 that he took treatment as inpatient for 10 days in a Hospital at Hyderabad.
25. Learned senior counsel Sri R.Basant emphasized that if really P.W.4 had taken treatment in Community Health Center, Dhone, there is no reason why P.W.4 was taken to a private hospital i.e. Gowri Gopal Hospital, Kurnool instead of the Government General Hospital, Kurnool. There is absolutely no explanation by the prosecution as to why P.W.4 was taken to a private hospital i.e. Gowri Gopal Hospital, Kurnool, as per the prosecution version. 32
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26. A perusal of the evidence on record goes to show P.W.8 was working as Casualty Medical Officer- cum-Civil Assistant Surgeon, Government General Hospital, Kurnool. But, the evidence of P.W.8 goes to show that he also worked as Consultant Medical Officer, Gowri Gopal Hospital, Kurnool at the time of issuance of Ex.P8-wound certificate. P.W.8 further admitted that it is true there is no post of Consultant Medical Officer in Gowri Gopal Hospital, Kurnool. If really there is no post of Consultant Medical Officer in Gowri Gopal Hospital, Kurnool, there is any amount of doubt as to how P.W.8 issued Ex.P8-wound certificate in respect of P.W.4. It is also pertinent to note that P.W.8 stated in cross- examination that he was on night shift duty on 15.4.2013 in Government General Hospital, Kurnool, and the night duty hours are from 8.00 PM of the day to 8.00 AM on the following day. He also stated that it is also true that he was on night shift duties prior to 15.4.2013 in Government General Hospital, Kurnool. 33
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27. Learned senior counsel Sri B.Adinarayana Rao contended that no doubt, P.W.8 was on night duty in Government General Hospital from 8.00 PM on 15.4.2013 to 8.00 AM on 16.4.2013; it is clear from the record that P.W.4 was admitted in Gowri Gopal Hospital, Kurnool on 14.04.2013 at 2.40 AM; by virtue of the same, it can be safely inferred that on 13.4.2013, P.W.8 was on night duty in Gowry Gopal Hospital and he discharged his duties during that night till 8.00 AM on 14.4.2013. This Court perused the record and concurs with the contention of the learned senior counsel that P.W.8 was on night duty from 8.00 PM on 15.4.2013 to 8.00 AM on 16.4.2013 in Government General Hospital, Kurnool, meaning thereby that he was on night duty on 14.4.2013 night to 15.4.2013 and thereafter he was on night duty and discharged his duty as Casualty Medical Officer-cum-Civil Assistant Surgeon, Government General Hospital, Kurnool from 8.00 PM on 15.4.2013 to 8.00 AM on 16.4.2013. There is absolutely no cross- examination to that extent. This Court concurs with the 34 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 submission of the learned senior counsel that the Doctor has discharged his duty on 14.4.2013 to 15.4.2013 in Government General Hospital, Kurnool. There is absolutely no record to show that the Doctor, who was performing his duties as Casualty Medical Officer-cum- Civil Assistant Surgeon, Government General Hospital, Kurnool was working as a Duty Doctor in night in Gowri Gopal Hospital, Kurnool. To corroborate the version of the prosecution, it is essential that the prosecution ought to have collected material to the said extent, in a case of this nature where the defence was emphasizing right from the beginning that P.W.4 was not at all present at the scene of offence and he was only planted in order to suit the prosecution case.
28. According to the learned senior counsel Sri R.Basant, if really P.W.4 was treated in Gowri Gopal Hospital, Kurnool, there is no reason why the investigating agency has not seized the case sheet. According to him, by virtue of the same, it can be inferred that Ex.P8-wound certificate was brought into 35 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 existence by the prosecution in order to see that the accused are convicted. Learned senior counsel Sri B.Adinarayana Rao appearing for appellant in Criminal Appeal No.806 of 2017 submitted that P.W.8 stated that he did not give intimation to police nor sent any requisition for recording dying declaration. It is his submission that admittedly the case sheet has not been seized by the investigating agency and the same is a lacuna on the part of the investigation and non-seizure of the case sheet, by itself, would not in any way affect the case of the prosecution. On this aspect, the learned senior counsel relied on a decision in Ambika Prasad and another v. State (Delhi Administration)3, wherein it is held thus: (paragraphs 8 to 10).
"Firstly, we would deal with the contention of the learned counsel for the accused that non- examination of the investigating officer has adversely affected their defence. In our view, non- examination of investigating officer in the present case has no bearing on appreciation of the evidence of injured eye-witnesses. The learned Sessions 3 (2000) 2 SCC 646 36 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Judge after analysing the evidence of SI Kulwant Rai (PW31), Inspector Suraj Bhan (PW20) observed that they resiled from their earlier recorded statements and wanted to help accused Ram Chander. The High Court has also observed that reason for non-
appearance of investigating officer is not far to seek and obviously he was trying to help the accused. The High Court further stated that prosecution case cannot be allowed to suffer at the hands of the investigating officer or agencies and investigating officer cannot be permitted to hold the prosecution to ransom by his deliberate acts. Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP {(1995) 5 SCC 518} observed that in a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer. Similarly, in Ram Bihari Yadav v. State of Bihar {(1998) 4 SCC 517 para 13} this Court observed:-
"In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this 37 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice."
Further in Paras Yadav and others v. State of Bihar {(1999) 2 SCC 126} this Court held:-
"It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not."
Further, it is to be borne in mind that criminal trial is meant for doing justice to the accused, victim and the society so that law and order is maintained. Hence, as observed by this court in State of UP v. Anil Singh, (AIR 1988 SC 1998) it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform. Hence, we would only state that it is unfortunate state of affair that police officers resiled from their own statements and deposed something contrary before the court. Equally, it is unfortunate that investigating officer has not stepped into the witness box without any justifiable ground. But this conduct of the investigating officer or other hostile 38 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 witnesses cannot be a ground for discarding the evidence of PW5 and PW7 whose presence on the spot is established beyond reasonable doubt. They have suffered injuries and their evidence is corroborated by medical evidence. It is also in conformity with what has been stated in the FIR. In any case, investigating officer is not at all material witness for the purpose of establishing whether accused or the complainant party was the aggressor. Not only that, accused have examined the defence witnesses for establishing their say. Hence, non-examination of the investigating officer cannot be a ground for holding that injured witnesses should not be believed."
29. The precedent relied on, by the learned senior counsel Sri B.Adinarayana Rao in Ambika Prasad and another v. State (Delhi Administration) case (3 supra) would not be applicable to the facts and circumstances of the present case for the reason that it is a case where the accused were apprehended on the spot i.e. at the instant. Further, there is evidence of P.Ws.5 and 7 whose presence on the spot was established beyond reasonable doubt. They suffered injuries and their evidence is corroborated by the medical evidence. In the 39 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 present case on hand, there were disputes between both the parties and they were at logger heads. In such a scenario, the prosecution has to be established beyond reasonable doubt. No doubt, it is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. When it is stated that motive is a double edged weapon, the evidence of the sole eye witness has to be scrutinized meticulously. In the case on hand, medical evidence does not corroborate, and when the defence is seriously disputing presence of P.W.4 at the time of the incident and contending that he is a planted witness, non-seizure of medical record with regard to admission, discharge and the medication provided to P.W.4 is fatal. In view of the said reasons, the aforesaid decision would not be applicable to the present facts and circumstances of the case. 40
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30. The learned senior counsel Sri B.Adinarayana Rao also relied on a decision in Dhanaj Singh alias Shera & others v. State of Punjab4, wherein it is held thus:
(paragraph 5) "5. In the case of a defective investigation, the court has to be circumspect in evaluating the evidence.
But, 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. (see Karnel Singh v. State of M.P. (1995) 5 SCC 518) Placing reliance on the aforesaid decision, the learned senior counsel submitted that in case where there is defective investigation, the Court has to circumspect in evaluating the evidence. There is no dispute with regard to the proposition of law laid down in the aforesaid decision to the extent that it would not be right in acquitting a person solely on account of defect, and to do so, would tantamount to playing with the hands of the investigating officer. It has to be 4 (2004) 3 SCC 654 41 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 ascertained as to what is the defect done by the investigating agency and whether those defects would go to the root of the case in order to help the defence. There might be defects, which would not go to the root of the case so as to convert the conviction into acquittal. In the present case on hand, the defects done by the investigating agency are so apparent coupled with the medical evidence in not corroborating the sole testimony of P.W.4, which would go to the root of the case.
31. It is pertinent to note here that except Ex.P8- wound certificate issued by P.W.8, which contains no date, in support of the case of the prosecution that P.W.4 was initially admitted in Community Health Center, Dhone and thereafter he was shifted to Gowri Gopal Hospital, Kurnool, like case sheet, etc., which would disclose admission and discharge summary; the medication that has been given to P.W.4, etc. Case sheet is one of the important documents which goes to show that the person who was admitted in hospital was treated by the Doctors in the said Hospital. 42
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32. Having perused the entire evidence on record, this Court comes to the conclusion that case sheet is one of the essential documents, because the details as to when the injured witness P.W.4 was admitted in hospital and when he was discharged, what is the treatment that has been given to P.W.4, etc. would be mentioned in the case sheet. According to P.W.8, no reference of the C.T. scan, if any, taken is made in Ex.P8 though it is stated that cerebral bleed was found. He also admitted that there is no reference of X-ray while mentioning the fractures. Non-seizure of the case sheet would certainly fatal to the case of the prosecution and it raises any amount of doubt as to whether the incident is said to have taken place as deposed by the prosecution.
33. Learned senior counsel Sri R.Basant emphasized that according to the Doctor P.W.8, lacerated wounds were found on the body of P.W.4. When the same was confronted with P.W.8 in his cross- examination, P.W.8 categorically stated that the lacerations can be caused only with a blunt object as per 43 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 the medical jurisprudence of Dr.Narayana Reddy and he also opined that lacerations would be caused only with blunt object. If really lacerations can be caused with blunt objects, the case of the prosecution is that P.W.4 was attacked with hunting sickles and knifes. In such circumstances, there would not be any lacerated wounds on the body of P.W.4. This aspect further adds strength to the case of defence.
34. This Court further observed that in Ex.P8- wound certificate issued by P.W.8, the date of issuance of the said certificate is not mentioned. Colour of the injuries or age of the injuries is not mentioned in Ex.P8. Size of the injuries is also not mentioned in Ex.P8. All these aspects would go to show that Ex.P8-wound certificate issued by P.W.8 was brought into existence after due deliberations and confabulations and an implicit reliance cannot be placed on the said document to establish that P.W.4 was treated in Gowri Gopal Hospital, Kurnool. Further, there is no material 44 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 available on record to establish that P.W.4 was treated in a hospital in Hyderabad.
35. Further more, there is absolutely no evidence on record to show as to who accompanied P.W.4 to the hospital. When an incident of this nature is said to have taken place, it is essential that some persons would have accompanied the injured to the hospital. There is absolutely no name mentioned as to who accompanied P.W.1 to the hospital. Apart from the same, on receiving information about the incident, P.W.3, daughter of P.W.4, being a female member, the normal conduct would be to immediately enquire about the injured and the deceased or go to the place where P.W.4 was present. Instead, P.W.3 preferred to go to police station along with P.W.1, but not to the place where her father was sent to hospital to attend medical needs of her injured father. Admittedly, P.W.3 did not lodge the police report. There is absolutely no explanation as to why P.W.3 went to police station. Though she is not the informant, she only accompanied P.W.1 to police station. When P.W.1 went 45 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 to police station to give a report, in normal circumstance, any daughter would prefer to go to the place where her father was lying with injuries to attend his medical needs. But, surprisingly, P.W.3 preferred to go to police station, which would throw any amount of doubt about the prosecution case. As discussed supra, the prosecution case is silent as to who accompanied P.W.4 to the hospitals.
36. It is the submission of learned senior counsel Sri R.Basant that blood stained clothes of P.W.4 were not seized by the investigating agency, and non-seizure of the blood stained clothes, in the circumstances of the case, is fatal to the case of prosecution. On this aspect, it is pertinent to refer to a decision in Rajni Kumar v. Suresh Kumar Malhotra5, wherein it is held thus:
"Failure on the part of the investigating agency to recover any such bloodstained clothes from PWs 4 and 5 creates serious doubts in our minds as to the presence of these witnesses at the time of the incident in question. Even the sudden arrival of PW 5, when no other independent villager was available at the time of 5 AIR 2003 SC 1326 46 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 the incident, is too much of a coincidence to accept, given the background of the omissions and discrepancies pointed out by us hereinabove in the prosecution case."
In view of the fact that there are certain glaring suspicious circumstances creating serious doubts in our mind as to actual presence of P.W.4 at the time of the incident. If really P.W.4 was present at the place of the incident and he is an injured witness, as stated by the prosecution, then his clothes would have been stained with blood. These are the essential elements on the part of the investigating agency to conduct, in order to prove the case of prosecution. Failure on the part of the investigating agency to recover such blood stained clothes of P.W.4, in the facts and circumstances of the present case, would create any amount of doubt in the mind of the Court with regard to his presence at the relevant point of time of the incident.
37. In the case on hand, according to P.W.4, he regained consciousness in the evening hours of Monday 47 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 15.4.2013, and on the next day i.e. Tuesday, police came and enquired him. According to the case of prosecution, P.W.4 is the material witness. When the investigating officer came to know that P.W.4 regained consciousness on 15.4.2013, there is no reason as to why the investigating officer examined P.W.4 only on 16.4.2013. According to P.W.10, during his cross-examination, he categorically admitted that he alone went to the I.C.U. in Gowri Gopal Hospital, Kurnool to examine P.W.4. He further stated that there is no endorsement of the Doctor as to the condition of P.W.4. He admitted that the police would mention the place of recording the statement on the top of Section 161 CrPC statement. He further stated that it is true that there is no mention of place of recording the statement as Kurnool or Gowri Gopal Hospital, in Section 161 CrPC statement of P.W.4. Further, the statement does not disclose that P.W.4 was in Gowri Gopal Hospital at the time of giving his statement.
48
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38. It the contention of the learned senior counsel Sri R.Basant that there is any amount of ambiguity whether P.W.4 was examined by P.W.10 on 16.4.2013. It is his submission that the appellant/A.10 was arrested on 03.05.2013, but in his remand report, it is not mentioned about examination of P.W.4 on 16.4.2013. It is his further submission that P.W.10-investigating officer admitted in his cross-examination that he did not mention names of A.9 to A.13 in Part-I Case Diary dated 16.4.2013 and dthat the date of the last Case Diary was not mentioned in Part-I Case Diary dated 03.05.2013. The learned senior counsel placed on record a copy of the Order dated 22.09.2017 passed by a Division Bench of the Combined High Court in Crl.M.P.No.1793 of 2017 in Criminal Appeal No.383 of 2017, whereby the appellant/A.10 was granted bail by this Court pending disposal of the Criminal Appeal. In the said Order, the Division Bench observed as under:
"Significantly, the remand report signed on 03.05.2013 produced by Sri R.Basant, learned 49 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 senior counsel, sets out the enclosures at the end as under:
"ENCLOSURES: Part-I C.D., Dt. 15.04.13, Original Arrest Panchanama, Dtd. 03.05.2013 at 07.00 hrs., Original Seizure Panchanama, dtd. 03.05.2013 at 12.30 hrs., Arrest CD, Dtd. 03.5.13, Arrest forms of the accused and notices u/s 50 (ii) CrPC notices are herewith submitted for favour of kind perusal."
However, in the very same remand report signed on 03.05.2013 produced by the learned Public Prosecutor, the enclosures read differently:
"ENCLOSURES: Part-I C.Ds., Dt. 15.04.2013, 16.04.2013, Original Arrest Panchanama, Dtd. 03.05.2013 at 07.00 hrs., Original Seizure Panchanama, dtd. 03.05.2013 at 12.30 hrs., Arrest CD, Dtd. 03.5.13, Arrest forms of the accused and notices u/s 50 (ii) CrPC notice are herewith submitted for favour of kind perusal."
The original record summoned from the Sessions Court does not contain the remand report signed on 03.05.2013 which was actually submitted to the Court for verification at this stage."50
KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Therefore, there is variation in the remand report with regard to the dates as mentioned in Part-I CDs. P.W.10 admitted that the statement of P.W.4 was sent to the Court along with the charge sheet only on 10.07.2013. The aforesaid discrepancy further strengthens the case of the defence that there is strong possibility of manipulation by police during investigation. P.W.10 admits that he did not seize blood stained clothes of P.W.4. P.W.10 also admitted that he did not seize the Scorpio vehicle. In the facts and circumstances of the case, these lacunae on the part of the investigating agency in conducting the investigation viz. in not collecting the case sheet and not making any kind of endorsement on the statement of P.W.4, non-seizure of the blood stained clothes of P.W.4, non-seizure of Scorpio vehicle, would certainly go to the root of the case. Therefore, this Court is of the opinion that entire investigation conducted by the investigating agency is perfunctory in nature.
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39. According to the evidence of P.W.1, he came to know about the death of the deceased through A.13 that the deceased died at Yerraguntla village. Then, he along with P.W.2 rushed to the place by motor cycle and they were told by A.13 that when he was coming along with the deceased in Scorpio vehicle, some unknown persons stopped them and tried to kidnap the deceased, and then A.13 escaped from that place and came to them. He also stated that at the place of the offence, they found the deceased died and they did not see any other person at the place of the incident. Going by the statement of A.13, except himself and the deceased, none was present at that point of time. Subsequently, the prosecution appears to have cooked up the story in such a way that P.Ws.1, 2 and 4 were accompanying the deceased and A.13.
40. According to the learned senior counsel Sri R.Basant, the deceased has a chequered history. Marriage of the deceased was performed with one Sujitha in the year 1995. A case was registered against the 52 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 deceased for kidnapping one Sulochana, who is daughter of one Basi Reddy, brother of Chinna Subba Reddy, father-in-law of P.W.3 and the said case ended in acquittal. According to P.W.3, the said Sulochana went on her accord with the deceased, but not against her will. Relying upon the same, the learned senior counsel submits that because of the aforesaid chequered history of the deceased, unknown persons waylaid the deceased and attacked him.
41. On 03.05.2013, P.W.10 at about 6.00 AM, on information, P.W.10, along with other officials and mediators, surrounded the vehicle in which A.1, A.5, A.7, A.8, A.9, A.10, A.11, A.12 and A.13 were travelling, and on interrogation, they are alleged to have confessional statements, and pursuant to the same, the accused showed the weapons to the investigating officer and the same were seized by the investigating officer i.e. hunting sickles - six in number (M.O.9), one small knife (M.O.10) and one iron pipe (M.O.11). In connection with the said 53 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 seizure, the learned senior counsel Sri R.Basant relied on a decision in Subramanya v. State of Karnataka,6 wherein it is held thus: (paragraph 86) "86. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama, the High Court was not justified in placing reliance upon the circumstance of discovery of weapons."
Section 27 of the Indian Evidence Act, 1872 is an exception to Sections 25 and 26 of the Act. Any statement, which is admissible under Section 27 of the Act, which is the information leading to discovery. In order words, the exact information given by the accused while in custody, which led to recovery of articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that the information given ought to have been recorded and proved, and if not so recorded, the exact information must be adduced through evidence. The basic idea 6 (2023) 11 SCC 255 54 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 embedded in Section 27 of the Act is the doctrine of confirmation by subsequent events.
42. In the case on hand, the panch witness for recovery of material objects did not support the prosecution case and turned hostile. As rightly argued by the learned senior counsel Sri R.Basant that without proving the contents of the panchanama and the investigating officer not putting the same in the exact words, would through any amount of doubt with regard to recovery of M.Os.9, 10 and 11.
43. Learned senior counsel Sri B.Adinarayana Rao submitted that there is no delay in lodging a report in police station and the FIR reaching the Magistrate concerned and it cannot be said that the First Information Report was brought into existence after due deliberations. On the contrary, both the learned senior counsel appearing on behalf of the appellants/accused submitted that the FIR was brought into existence at a belated stage after due deliberations; there is delay in the FIR reaching the Magistrate Court. They further 55 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 submitted that in order to strengthen their case, P.W.4 was projected as an injured witness. The incident is said to have taken place at 9.00 PM and a report was given in police station at 10.40 PM. The distance between the place of the incident and the police station is 6 KM and the report reached the Magistrate Court on the next day at 6.40 AM. This Court is of the opinion that though there is some delay in the FIR reaching the Magistrate Court, the said delay is not so significant that it would go to the root of the case.
44. To sum up, the entire prosecution case rests on the testimony of sole injured eye-witness P.W.4. It is quite evident that P.W.4 was aged about 67 years and a retired employee. He, in his evidence, categorically stated that after retirement, his life style is taking food, watching telephone and sleeping and nothing else. Having stated so, there is any amount of ambiguity whether P.W.4 travelled along with the deceased to the office of the Advocate in Kurnool in connection with a criminal case of the deceased on the fateful day. He 56 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 further stated that he underwent eye operation at Vasan Eye Care in the month of January, 2013. After the incident, according to P.W.4, he became unconscious. The prosecution states that 108 Ambulance took the injured witness P.W.4 to the Community Health Center, Dhone and Doctor examined P.W.4 in the Community Health Center, Dhone. But, the medical records of the Community Health Center, Dhone where P.W.4 was initially admitted, were not seized by the investigating agency. So also, the Doctor, who examined P.W.4 initially in Community Health Center, Dhone is also not examined. Non-seizure of any records pertaining to 108 Ambulance and medical records of Community Health Center, Dhone would through any amount of doubt with regard to the case of prosecution. Apart from the same, having got the treatment in Community Health Center, Dhone, P.W.4 was taken to Gowri Gopal Hospital, Kurnool. It is not known as to why P.W.4 was not shifted to the Government General Hospital, Kurnool, but he was taken to a private hospital viz. Gowri Gopal 57 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Hospital, Kurnool. It is not known who accompanied P.W.4 to the Gowri Gopal Hospital, Kurnool. There is absolutely no evidence with regard to the said aspect. It is not known as to when P.W.4 was admitted in Gowri Gopal Hospital and when he was discharged from the said hospital. It is not known whether any medication or any x-ray, etc. were taken on P.W.4, which are essential elements to show that P.W.4 was injured witness. In the absence of any such document to show that P.W.4 is an injured witness, relying upon Ex.P8- wound certificate alone would not be sufficient to say that P.W.4 is a truthful witness, particularly when there are admittedly property disputes prevailing between the groups. It is not known whether the injuries suffered by P.W.4 would make a person unconscious. According to P.W.4, he regained consciousness in the evening hours of 15.4.2013. Further more, P.W.4 stated that he was in Hyderabad Hospital as inpatient for about 10 days. No medical record in that connection has been seized by the investigating agency. There is also no reason as to why 58 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 the investigating agency has not recorded statement of P.W.4 on 15.4.2013. The investigating agency has taken its own time to examine the crucial witness P.W.4 on 16.4.2013. There is also any amount of ambiguity whether the investigating agency examined P.w.4 on 16.4.2013 or not, for the reason that by insertion of '16.4.2013' in the remand report, there is any amount of doubt whether P.W.4 was examined on 16.4.2013. On a perusal of the entire evidence on record goes to show that the prosecution has built up the story in order to suit their case and help P.W.3 in the case. It is obfuscate to rely on the evidence of P.W.4 to come to a conclusion that the evidence of P.W.4 is reliable, which suffers from number of conjectures and infirmities. Except the evidence of P.W.4, there is absolutely no other evidence to connect the appellants/A.1 and A.10 to the crime. Therefore, it would be travesty of justice of justice to place an implicit reliance on the solitary testimony of P.W.4 to base a conviction, more so when the evidence of P.W.4 is wholly unreliable. The learned 59 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Sessions Judge did not consider these aspects in right perspective and erred in convicting and sentencing the appellants/A.1 and A.10, having rightly acquitted the other accused. Hence, the conviction and sentence recorded against appellants/A.1 and A.10 are liable to be set aside.
45. In the result, the conviction and sentence recorded against the appellants/A.1 and A.10 in the judgment dated 09.03.2017 in Sessions Case No.379 of 2014 on the file of the IV Additional District Judge, Kurnool are set aside. The appellants/A.1 and A.10 are found not guilty of the charges leveled against them and they are accordingly acquitted of the said charges, and they are set at liberty. Fine amounts, if any, paid by them shall be refunded to them.
46. Accordingly, Criminal Appeal Nos. 383 of 2017 and 505 of 2017 are allowed. Criminal Appeal No.806 of 2017 is dismissed.
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KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 Miscellaneous petitions pending, if any, in the Criminal Appeals shall stand closed.
_____________________________ JUSTICE K. SURESH REDDY __________________________________ JUSTICE K. SREENIVASA REDDY 31.1.2025 DRK 61 KSRJ & SRKJ CrlA No.383 of 2017, 505 of 2017 & 806 of 2017 THE HON'BLE SRI JUSTICE K.SURESH REDDY AND THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY COMMON JUDGMENT IN CRIMINAL APPEAL Nos.383 of 2017, 505 of 2017 & 806 of 2017 31.1.2025 DRK