Andhra Pradesh High Court - Amravati
Lingolu Chittibabu Bujji vs The State Of A.P. Rep., By Its Pp on 3 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, J. Uma Devi
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE MS JUSTICE J.UMA DEVI
Criminal Appeal No.859 of 2013
JUDGMENT :(Per the Hon'ble Sri Justice C.Praveen Kumar)
1. A2 is the appellant herein. Originally, A1 and A2 were tried for an offence punishable under Section 302 I.P.C. or in the alternative for an offence punishable under Section 302 read with Section 34 I.P.C. While A3 was tried only for an offence punishable under Section 201 I.P.C.
2. The gravamen of the charge against the accused is that on 14th July, 2007 at about 6.30 PM on the punt at Sakhinetipalli ferry, A1 and A2 caused the death of one, Rudraraju Suryanarayanaraju @ Mastaru by hacking him with knives. Thereafter, A3 along with A1 and A2 caused disappearance of evidence by burning the clothes of the 1st accused. Pending trial, the case against A1, who is the father of A2, was separated. By its judgment dated 24th July, 2013, the learned I Additional District & Sessions Judge at Rajahmundry, acquitted A3, but, however, convicted A2 under Section 302 I.P.C. and sentenced him to undergo imprisonment for life.
2
3. The facts, as culled out from the evidence of the prosecution witnesses, are as under :
A2 is the son of A1, while A3 is the son of the younger brother of A1. The deceased is the maternal uncle of P.W.1 and P.W.9 - Rudraraju Sivaramakrishna Raju, who is working as an Inspector of Police, is the younger brother of the deceased. The deceased is said to have purchased Ac.1.00 of land in a court auction in the year 2004 from A1 and took delivery of the property through Court. Since then, disputes arose between them over the said land. It is said that accused Nos.1 and 2 were causing obstruction to the deceased in cultivating the land purchased through court action. It is said that a report was given against A1 and A2 about six months prior to the incident and a theft case was also filed against the accused. It is said that the Court also granted police aid to the deceased. P.W.1, who is very closely related to the deceased, was a native of Narsapuram and was eking out his livelihood through agriculture. The deceased, apart from doing agriculture, was working as a Teacher. On the date of incident, P.W.1 was coming to Sakhinetipalli lanka from Narsapuram in a punt. When the punt reached the banks of Sakhinetipalli side, he noticed the deceased holding his scooter on the bank. When the punt came to the bank and stopped, the deceased came running on to the punt uttering 3 "champestunnaru baboy". It is said that A1 and A2 came behind him holding knives and hacked the deceased, after he came on to punt. A2 is said to have hacked on the head with a knife and thereafter both the accused hacked on the chest and other parts of the body. Thereafter, A1 threw his knife on the bank and left the place. The 2nd accused also left the scene along with the knife. About 50 or 60 passengers, who were on the punt at the time of the accident, ran helter and skelter on seeing the incident. This incident is said to have taken place on 14.7.2007 at 6.40 PM. After the incident, P.W.1, who saw the incident and being a close relative of the deceased is said to have gone to the house of parents-in-law of the deceased at Sakhinetipalli lanka and informed about the incident. On hearing the news, mother-in-law of the deceased collapsed and died. Thereafter, P.W.1 and other family members informed their relatives about the incident and after all the relatives gathered at the house, P.W.1 and his uncle by name, Suryanarayana Raju (P.W.6) went to the Police Station and lodged a report with P.W.22 - S.I. of Police, basing on which a case in crime No.43 of 2007 came to be registered under Section 302 read with Section 34 I.P.C. Ex.P38 is the F.I.R. C.I. of Police took up further investigation in the matter. On the very same day at 7.30 PM, P.W.25 - Inspector of Police, on receipt of information from P.W.22 and also about his visit to the scene, proceeded 4 towards scene by 9.00 PM and instructed P.W.22 to post a guard at the scene. On the next day at about 6.30 AM he secured P.W.16 and in his presence prepared an observation report under Ex.P23 and also a rough sketch of the scene under Ex.P45. He also got photographed the scene of offence through P.W.14 under Exs.P7 to P14. During the course of investigation of the scene, he seized M.Os.4 to 9, one Nokia Cell Phone, grey coloured spectacles' cover, four one rupee coins, one white coloured fancy hat. On the same day at 8 AM he conducted inquest over the dead body in the presence of P.W.16. During inquest, he examined P.Ws.1 to 10 and recorded their statements. Ex.P24 is the inquest report. Thereafter, he sent the body for post-mortem examination. P.W.20 - Civil Assistant Surgeon, Area Hospital, Razole, conducted autopsy over the dead body and issued Ex.P32 - post-mortem report. According to him, the cause of death was due to injuries 1, 2 and 5, which are sufficient to cause death in the ordinary course of nature.
4. On 2.8.2007, P.W.19 - Additional Junior Civil Judge, Sompeta, conducted test identification parade in the sub- jail.
5. P.W.25, who continued with the investigation, recorded statements of the witnesses and on 26.7.2007, on receipt of credible information, proceeded to Dindi check 5 post along with P.W.16 and found A1 and A2 coming from chinchinada side. When they tried to escape, he apprehended and interrogated them in the presence of the mediators. Pursuant to the confession made, he recovered M.O.2 from the dickey of the scooter - M.O.3 under Ex.P25. After collecting all the necessary documents, he filed charge-sheet, which was taken on file as PRC No.25 of 2007, on the file of the Judicial First Class Magistrate, Razole. On appearance of the accused, copies of the documents as required under Section 207 Cr.P.C. were furnished. Since the offence is triable by Court of Sessions, the same was committed under Section 209 Cr.P.C. On appearance, charges as referred earlier were framed, read over and explained to the accused, who denied the same.
6. In support of its case, the prosecution examined P.Ws.1 to 25 and got marked Exs.P1 to P47. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witness to which they denied. The accused examined D.Ws.1 and 2 and got marked Exs.D1 to D10. Relying upon the evidence of the eye-witnesses, coupled with the motive established by the prosecution, the learned Sessions Judge, while acquitting A3 of the offence punishable under Section 201 I.P.C., convicted A2 under 6 Section 302 I.P.C. and sentenced him to suffer imprisonment for life. Challenging the same, the present appeal is filed.
7. Sri K.Chidambaram, learned counsel appearing for the appellant, would contend that there are number of circumstances to indicate that P.W.1 was not an eyewitness to the incident. According to him, his conduct in not giving report to the Police immediately and as the medical evidence is inconsistent with his oral testimony, pleads that he cannot be treated as a reliable witness. Insofar as evidence of P.Ws.2 and 3 are concerned, according to him, they are set up witnesses and they are made to speak in the manner in which the prosecution wanted. According to him, the abnormal delay in lodging the report and the report reaching the court has been used by the family members to implicate the accused, having regard to dispute and cases over the land. He further pleads that no independent witness was examined by the prosecution, more particularly, the shops owners having shops near the punt. He further pleads that the entire case of the prosecution and the manner in which the evidence is to be adduced is the handy work of P.W.9 - Police Inspector (L.W.14), who is the brother of the deceased. According to him, there is evidence on record to show that there he was the brain behind lodging the report and also the manner in which the 7 witnesses have to give their evidence. He further pleads that this report given at 11 PM is hit by Section 162 Cr.P.C., as the Police received information by 7.30 PM itself and proceeded to the scene. If really the incident occurred in the manner narrated by the prosecution, the police who must have examined the shop owners and the persons on the punt/operators of the punt, would have disclosed the manner in which the incident took place, but, the evidence of the Investigating Officer is silent on these aspects. Acording to him, their version must have been different because of which no crime was registered till the report was lodged at 11.00 PM. Hence, submits that there is any amount of doubt as to the manner in which the incident took place and the persons involved in the incident.
8. On the other hand, learned Public Prosecutor would contend that the presence of P.W.1 on the punt being natural, there is no justification to disbelieve his version. According to him, P.W.1 went to the house of the in-laws of the deceased to inform about the incident, but, in view of the sudden collapse and death of the mother-in-law of the deceased, family members were more worried about the health of the old lady instead of proceeding to the police station in lodging the report. This conduct of P.W.1 giving the report at 11.00 PM is natural, which warrants no suspicion. Apart from that he would also contend that even 8 if the evidence of P.W.1 goes, still there remains the evidence of P.Ws.2 to 4, whose evidence remain unimpeached. He further pleads that there is absolutely no delay in lodging the report and as such, the findings of the trial court warrants no interference.
9. The point that arises for consideration is, Whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?
10. In order to appreciate rival contentions, it would be necessary to refer to the evidence of the witnesses. Insofar as motive for the commission of the offence is concerned, the prosecution tried to rely upon not only the evidence of P.W.1, but also on the evidence of P.Ws.23 and 24, who worked as Head Constable and Inspector of Police during the year 2006 and 2007. P.W.23 in his evidence states that on 26.12.2006 i.e., long prior to the date of incident, the deceased came to the police station and informed that he was not allowed to cultivate the land by A1 and A2, which was purchased by him through court auction. He requested police aid as he obtained injunction orders from the Court. P.W.23 is said to have informed about the same to C.I., Razole. On instructions, police aid was provided to the deceased. On the same day at 1.00 PM P.W.23 along with other police constables went to the disputed area/property, where A1 and A2 and wife of A1 questioned them as to why 9 they came there and when they were informed that they came there pursuant to an order of the Court, the accused threatened them with dire consequences. According to them, the same was entered in the General Diary. It is said that on 14.7.2007 i.e., the date of incident at about 9 AM, A.S.I. of Police directed P.W.23 to go to the property area along with other police constables. On seeing them, A1 and A2 started running away from the fields of the deceased. It is said that they were there in the bandobast duty till 6 PM and that he does not remember whether he made a General Diary entry to that effect. P.W.23 was cross-examined at length. In the cross-examination he admits that there will be a passport prepared and handed over to the person to go on outside duty. There would be a roaster maintained in the Police Station showing the duties entrusted to the concerned police personnel attached to the Police Station. He further admits that he does not remember whether he was issued with a passport on 14.7.2007 while going to bandobast duty. He further admits that he does not know whether the deceased or the accused have other properties than the disputed property. He admits that though accused were in the fields of the deceased, no crop was cut and they went there only to prevent galata. He admits that the deceased himself cut the guava tree in the field with the help of coolies on that day.
10
11. P.W.24 is the Inspector of Police who in his evidence deposed about registering a case in crime No.97 of 2006 under Section 379 I.P.C. in respect of an incident which took place on 30.11.2006 and also a case in crime No.8 of 2007 in respect of an incident on 6.2.2007 for the offences punishable under Sections 447, 379, 506 read with Section 34 I.P.C. Basing on the evidence of these two witnesses, the prosecution tried to contend that there was sufficient motive for the accused to do away the deceased. But, as seen from the record, the two witnesses referred to incidents which took place on 30.11.2006 and 6.2.2007 i.e., long prior to the incident in question.
12. P.W.23 was made to speak about he going to the land of the deceased on the date of incident at 9.00 AM and also noticing accused 1 and 2 in the land of the deceased, but, however, he fairly admits in the cross that there is no evidence to show that he went there on that day. The passport, which shall be issued to the person to go on outside duty, was not issued in favour of P.W.23 for going on bandobast duty on that day. In fact, he admits that he does not remember about issuance of the same. Apart from that, if really accused 1 and 2 were there in the land, definitely they would have caused some damage to the standing crop in the land of the deceased, but, P.W.23 admits that the crop was not cut in the paddy field of the 11 deceased. Therefore, the motive set up by prosecution, in our view, cannot be said to be a proximate one.
13. Be that as it may, motive loses significance where there is evidence available on record with regard to the incident proper.
14. P.Ws.1 to 4 and 6 were examined as eyewitnesses to the incident. P.W.1 in his evidence in chief deposed that on the date of incident at about 6.30 PM when the punt in which he travelled from Narsapuram to Sakhinetipalli reached the banks of Sakhinetipalli lanka, the deceased by uttering the words "champestunnaru baboy" ran on to the punt, followed by A1 and A2. According to him, A2 hacked on the head with knife and thereafter, both accused hacked on the chest and other parts of the body. His evidence further discloses that about 50 to 60 passengers, who were travelling in the punt, ran helter and skelter after the incident. He further admits that it is a busy area having shops all around. Being afraid of the incident, he went to the house of the in-laws of the deceased and informed about the incident. On hearing the death news, mother-in-law of the deceased is said to have collapsed and died. He along with sons of the brothers-in-law of the deceased informed the relatives and after their arrival went to the Police Station at 11 PM and lodged a report.
12
15. He was cross-examined very exhaustively by the counsel appearing for the accused. In the cross- examination he admits that the deceased is his maternal uncle and P.W.9 is younger brother of the deceased. He further admits that at the time of incident, P.W.9 was working as DSP in the Police Department at Visakhapatnam. He further admits that P.W.9 came to the court and is present in the court premises. According to him on the date of the incident at about 7.00 or 8.00 PM he informed about the incident to P.W.9 and thereafter the son of P.W.9 and son of the deceased came at 12.00 or 1.00 AM on the intervening night. His evidence also discloses that the transport of passengers across the Godavari river will be made on punt. However, to a suggestion that there was no need for him to go Sakhinetipalli lanka in the evening was denied by him, but, however, he failed to give reason for going to Sakhinetipalli lanka by crossing river Godavari in the punt at 6.30 PM. He further admits in the cross- examination that the police did not examine him or Suryanarayana Raju after lodging the report under Ex.P1. He further admits that in-laws of the deceased are having lands in Sakhinetipalli lanka and the deceased is having brothers-in-law who are Suryanarayana Raju and Rangaraju. He further admits that he did not mention in Ex.P1 about the deceased holding a scooter at the river bed. He further admits that while he was getting down from the 13 punt, the deceased was climbing the punt and saw the deceased after getting down from punt at a distance of 10 to 20 feet. According to him, the actual incident took place between 6.30 PM and 6.45 PM. He further admits that he went and informed to the mother-in-law of the deceased at 7.30 or 8.00 PM and he came to the scene of offence after giving a report to the police. He further admits that he did not visit the scene of offence before presenting Ex.P1 report to the police and that he stayed with the mother-in-law of the deceased till he presented Ex.P1. His evidence also discloses that he did not raise any cries after the incident, though there were several shopkeepers at the time of incident. According to him, the first blow hacked on the deceased was from behind by A2, pursuant to which the deceased fell down. All other suggestions given with regard to incident, implication of the accused etc., were denied by him.
16. As stated earlier, the learned Public Prosecutor tried to contend that P.W.1 is a truthful and reliable witness and his presence cannot be doubted on the punt.
17. A reading of the evidence of P.W.1 clearly indicates that the incident in question took place at 6.30 or 6.45 PM, wherein A2 is said to have hacked the deceased first on the back side of the head and after the deceased fell down, A1 and A2 hacked the deceased on the chest. It is his case 14 that there were about 50 to 60 passengers on the punt. He further admits that he did not raise any cries after seeing the incident. His evidence also shows that the deceased is his maternal uncle and P.W.9 - DSP of Police is brother of the deceased and he claims to have contacted him at 7.00 or 8.00 PM after going to the house of in-laws of the deceased. He further admits that on receiving the news of the incident, the mother-in-law of the deceased collapsed and died.
18. Insofar as the death of the mother-in-law is concerned, the evidence of P.W.1 is inconsistent. While in chief he deposed that the mother-in-law died immediately upon receipt of news from him, which according to him, was at 7.00 PM or 8.00 PM, but in the cross-examination, he admits that he was with the mother-in-law of the deceased till he presented the report. It would be useful to extract the same which is as under :
"I went and informed to the mother-in-law of the deceased at about 7.30 or 8.00 PM. I came to the scene of offence after giving report to the police. I did not visit the scene of offence before presenting Ex.P1 report to the police and I stayed with the mother-in-law of the deceased till I presented Ex.P1. I gave report at about 10.30 PM."
But, the evidence of the Investigating Officer would show that P.W.1 did not state before him that, on hearing the death news of the deceased, mother-in-law of the deceased 15 collapsed and died; the relevant portion of the same is as under :
"P.W.1 did not state before me that on hearing the death news of the deceased, his mother-in-law Saraswathamma collapsed and died. P.W.1 did not state the specific overt acts that A1 and A2 hacked the deceased on chest, head and other parts of the body."
Therefore, the reason urged by the learned Public Prosecutor for the delay in lodging the report viz., the death of mother-in-law, has no basis. In fact, it is not even the case of P.W.1 that there was delay in lodging the report because of death of mother-in-law of the deceased. On the other hand, his case is that after all the relatives gathered at the house, he and the son of the deceased went to the Police Station and lodged a report, hence delay.
19. As seen from the evidence of the Investigating Officer, P.W.1 claims to have lodged a report at 11.00 PM and in the report, which was given at 11.00 PM, no specific overt acts were attributed to any of the accused. On the other hand, it is stated that on the date of incident at about 6.30 PM while he was getting down the ferry boat, A1 and his son A2 holding curve knives hacked his maternal uncle indiscriminately who was on ferry boat and proclaimed that whoever comes to the land will be hacked as such. It is to be noted here that this belated First Information Report does not reveal the manner in which the incident took 16 place. However, P.W.1 while giving evidence deposed that the deceased came running to the punt followed by accused and thereafter A2 hacked first on the back of the head and then both the accused on the chest. This aspect of A1 and A2 chasing the deceased and the deceased raising cries were not referred to in the First Information Report. It is to be noted here that this F.I.R. was given not an eyewitness to the incident, but by a person who is a close relative of the deceased and that too nearly six hours after the incident.
20. It is also to be noted here that the conduct of P.W.1 and also the family members of the deceased is very unnatural. When the incident took place at 6.30 PM at Sakhinetipalli Lanka village and when P.W.1, though claims to have seen the incident, never raised any cries nor does make any effort to go and see the deceased after the incident. According to him, he saw the incident, went to the house of in-laws and informed about the incident. No prudent person, more particularly, being a close relative of the deceased, would have resorted to such a behaviour. At least, he would have made some effort there with the help of shop owners or others to see as to whether the deceased was alive or dead or stay there and inform the family members of the deceased, either by telephone or send a message through others. It is not as if this Sakhinetipalli Lanka is a big place, but it is a small hamlet in that area. 17 Further, after informing the in-laws of the deceased about the incident, strangely none of them reacted in the manner in which they should have. Nowhere in the evidence it has come on record that the family members of the deceased viz., the brothers-in-law or others rushed to the scene of offence to find out as to what happened to the deceased; every body kept quiet and stayed in their house, which, again, is a quite improbable and unbelievable. Apart from that, P.W.1 claims to have informed P.W.9 about the incident at 8.00 PM, no effort was made either to go to the scene of offence or lodge a report in the Police Station. After all the relatives assembled at the house, a report is said to have been lodged at 11.00 PM making omnibus allegations against both the accused. This conduct of P.W.1, in our view, is quiet unnatural. Not only the conduct of P.W.1, but also the conduct of the family members of the deceased, who did not bother to go to the scene of offence even after receiving information from P.W.1. It is not as if that there was no one in the house. All the family members gathered after receiving the news, but, none made any effort to go to the punt to see the body or at least take the body to any Hospital etc.,
21. At this stage we intend to refer to the medical evidence, since the evidence of P.W.1 is to the effect that A2 gave a blow on the back of the head with knife and after he 18 fell down, both the accused stabbed on the chest with knives. P.W.20 is the Doctor who conducted post-mortem examination over the body. In the cross-examination he admits as under :
"There should be an injury on the back side of the head if a person gives a blow from behind on his head. There are no injuries found on the parictal region (back side) of the head of the deceased. Mode Medical Jurisprudence and Toxicology by Dr.K.S.Narayana Reddy is the authority."
From the admission of the Doctor it is evidence that there was no injury on the back of the head. If really A2 hacked on the head of the deceased or on the backside of the head of the deceased, definitely there would have been a grievous injury, but the evidence of the Doctor show that there were no injuries on the back side of the head of the deceased.
Further, P.W.25 in his cross-examination stated as under :
"P.W.1 did not state before me in 161 Cr.P.C. statement about his whereabouts from 7.00 PM to 11.30 PM. P.W.1 did not reveal in his 161 statement as to why he was crossing the ferry in the evening time on the date of incident. So also P.W.6."
All these circumstances make the evidence of P.W.1 doubtful and as such, he cannot be treated as a reliable witness.
22. Coming to the evidence of P.Ws.2 and 3, the learned Public Prosecutor, during the course of the arguments 19 urged that even if the evidence of P.W.1 goes, still there remains the evidence of P.Ws.2 to 4, who were working on the punt. P.W.2 in his evidence states that he was a worker on punt at Narasapuram ferry. According to him, Pappula Bujji - P.W.3 is a driver of the punt, while Koppadi Krupanandam - P.W.4 is the Navigator. According to him, on that day at 6.30 PM or 6.45 PM, the punt came on to the bank of Sakhinetipalli side. He unfastened the ramp and tied the rope of the punt to the peg on the bank. While the passengers were getting down the punt, one person came on to the punt uttering words "kapadandi, kapadandi". He deposed that he knows him, but he does not know his name. Two persons chased him from behind. According to him, the 2nd person, who chased the deceased, is present in the Court. He further says that two persons who chased the deceased hacked him to death on the punt. According to him, they were frightened and left the place and returned to the punt on the next day morning after 9.00 AM. He further states that by the time of incident there was light and it was not dark. In the cross-examination he admits that he was not working on the punt. According to him, P.W.9 and the then C.I. of Police, Razole brought him to Amalapuram two days in advance and took him to an Advocate and trained him to give evidence. It will be useful to extract the relevant portion in the cross-examination of P.W.2, which is as under :
20
"I am not working on punt. L.W.14 and the then C.I. of Police, Razole brought him to Amalapuram two days in advance. The said two persons took me to an advocate and trained me to give evidence."
He further states in his cross-examination that the Police took him to Sub-Jail, Razole, one month after the incident and he gave statement before the Magistrate at the time of the Identification Parade. His cross-examination further indicates that three days prior to giving evidence, the Police of Sakhinetipalli took him to the Police Station. He admits that he did not go to the Police Station yesterday, but stayed back in Rajahmundry. However, to a suggestion that he was tutored by P.W.9 was denied by him.
23. This evidence of P.W.2, in our view, creates any amount of doubt as to whether he is speaking the truth. His evidence in chief shows that he knows the deceased, but, he does not know his name. Further, in the cross- examination he categorically admits that L.W.14 (P.W.9) and the C.I. of Police, Razole, brought him to Amalapuram from Narsapuram two days in advance and took him to an Advocate, where he was trained as to how to give evidence. This circumstance itself is sufficient to show that he is a set up witness. He cannot be called a reliable witness. The version of P.W.2 also indicates the involvement of P.W.9 (L.W.14) in moulding the case, fixing the accused in the commission of the offence. Otherwise, there was no reason 21 for the Police or P.W.9 (L.W.14) to take P.W.2 to an Advocate and train him to give evidence. If really he has witnessed the incident, he would have deposed the incident in the manner he has seen it.
24. According to P.W.19 - Additional Junior Civil Judge, Sompeta, who conducted test identification parade, two out of seven stated before him that they would identify the culprits; they are, P.W.6 and one, Nadimpalli Suryanarayana Raju, therefore, the evidence of Magistrate, who conducted test identification parade would show that P.W.2 who was subjected to identifying the accused did not mention before the Magistrate about he identifying the accused.
25. Coming to the evidence of P.W.3, he in his evidence, deposed that he was working as driver of the punt. According to him, the ferry came to Sakhinetipalli at 6.45 PM. When the passengers were getting down the punt, two persons chased the deceased from behind holding knives. A2, who was in the Court hall, was one of them. According to him, both assailants hacked the deceased on the punt and the deceased died on the spot. After hacking the deceased, assailants left the place and proceeded towards the road leading to Sakhinetipalli. P.W.3 also claims to have fled the punt, returned on the next day morning. In the cross-examination he admits that himself, P.W.2 and 22 P.W.4 were trained by one Advocate by staying in his house at Amalapuram. All of them were brought in jeep to the Court at Amalapuram to give evidence. It will be useful to extract this part of evidence of P.W.3, which is as under :
"It is true that myself, P.Ws.2 and 4 came along with L.W.14 from Narasapur to the office of the C.I. at Razole, 2 days prior to giving evidence at Amalapuram. The then C.I. of police, Razole came along with us to Amalapuram. It is true that myself, P.Ws.2 and 4 were trained by one Advocate by staying in his house at Amalapuram. We were all brought in a jeep to the court at Amalapuram to give evidence."
His evidence also disclose that they were accompanied by (P.W.9) from Narsapur to the Office of C.I. at Razole two days prior to giving evidence at Amalapuram. Therefore, his evidence also has to be viewed with suspicion. If really he was an independent witness and witnessed the incident, there was no necessity for P.W.9 (L.W.14) and the C.I. of Police to bring him to Amalapuram, make him stay in the house of an Advocate and train him by an Advocate as to how to give evidence in the case. This circumstance itself is sufficient to throw doubt on the veracity of the evidence of P.W.3. It is also to be noted here that P.W.3 was also subjected to identification parade. While the evidence of P.W.1 clearly indicates that there was sufficient light to witness the incident, P.W.3 admits that it was dark and he cannot identify the assailants. It will be useful to refer to the same, which is as under :
23
"It is true that I stated before the Magistrate that I could not identify the culprits due to darkness. L.W.14 had shown A-2 to me at Amalapuram and I got identified him in the court."
Therefore, neither the evidence of P.W.3 with regard to the incident proper and he identifying A2 in the court can be accepted.
26. Similarly, P.W.4, who is the Navigator on the punt, though claims to have seen the incident, but the evidence of P.Ws.2 and 3 clearly indicates that he was also taken to Advocate and was trained to give evidence in the court. Therefore, we feel that his evidence also has to be viewed with suspicion. Further, all the three witnesses viz., P.Ws.2,3 and 4 never say that A2 gave blow first, as a result of which deceased died and that both accused hacked the deceased on the chest. The evidence of all these three witnesses is parrot like version stating that both accused attacked the deceased without reference to the place of attack and also the portion of the body where the accused attacked which is again contra to the evidence of P.W.1.
27. The only other evidence which remains to be considered is the evidence of P.W.6. He claims to be a resident of Mogalturu of West Godavari District and working as a Supervisor in BSNL, Mogalturu since 2000. According to him, he knows the deceased, but he does not know A1 to A3 prior to the occurrence. According to him, on 14.7.2007 24 between 6.30 PM and 6.45 PM, he came to Sakhinetipalli Ferry point to cross the river and was waiting for the punt. When the punt reached the bank, he heard cries of the people who were getting down from the punt and also noticed two persons going away on a chetak scooter in perturbed state of mind. The scooter was a cement colour scooter bearing No.1018. One person was wearing a lungi and another a T-shirt. The pillion rider of the scooter was holding a knife. He went to the punt and saw the body lying on the punt facing towards sky. On the next day morning he was informed that the deceased was Teacher working in the school. He further deposed that he can identify the person standing in the dock as A2, who was having knife and was as a pillion rider. He further states that three months later he was called to the sub-jail, Razole or Amalapuram and in the presence of Magistrate, he identified the accused in the Test Identification Parade. A2 is the person whom he claims to have identified as assailant. In the cross-examination he admits that he cannot identify which of the M.Os. held by A2. He admits that he came to Sakhinetipalli at about 4.00 PM from his place by crossing the river. He further admits that he came to Sakhinetipalli on a scooter belonging to his friend and that he does not remember the number of the scooter in which he came. He further admits that on that day he went to Malikipuram at 3.30 PM, which is at a distance of 30 25 KMs from Sakhinetipalli. He further admits that though he intends to cross Godavari river in the ferry, he did not purchase ticket for crossing the same, but asked his cousin by one Suryanarayana Raju to purchase the ticket. He further admits that he met L.W.14 (P.W.9) in the court, but, however, to a suggestion that he was planted by L.W.14 (P.W.9) was denied by him. According to him by the time he reached the punt at 6.40 PM, people were running away and he alone went towards punt. Though P.W.6 says that he saw the wearing apparels of two accused and the weapons held by them, but in the earlier statement before the Investigating Officer he failed to mention the same. It will be useful to extract the same, which is as under :
"P.W.6 did not state before me that he saw one person wearing Lungi and another T-shirt. The descriptive particulars of the accused were not spoken by P.W.6. He did not state before me that he alone went to the Panti and saw the deceased and others present did not attempt to go to panti. P.W.6 did not state before me that the name of A1 and A2 was informed by the people present there.
I examined P.W.6 at about 9.00 AM on 15.7.2007 during the course of inquest in a hut situated opposite to the panti, not at the dead body."
28. From the evidence of this witness it is very clear that he never saw the incident of accused attacking the deceased. According to him, he saw two persons viz., one person wearing lungi, another person wearing T-shirt on scooter bearing No.1018. He does not even say that the 26 knife which A2 was holding was stained with the blood. Further, as observed by us earlier this fact of he witnessing the accused going on a scooter wearing the dress viz., lungi and T-shirt was not spoken to by him in his earlier statement. As stated by us earlier, he never spoke about the manner in which the incident took place. When the passengers in the punt, who are about 50 and 60 in number, were running raising cries and when he was proceeding towards the punt to see as to what has happened, definitely he could not have observed the vehicle number of the accused, more so when the statement of P.W.3 before the Magistrate was to the effect that it was dark by then. Therefore, this witness, in our view, cannot be treated as an eyewitness to the incident and his evidence cannot be relied upon to base a conviction.
29. Though P.W.6 claims to have identified the accused in the test identification parade held, but, his own evidence shows that he never seen the incident of attacking the deceased, but, he claims to have seen both the accused going away in the scooter armed with weapon. Definitely, he could not have seen their faces clearly when the accused as pillion rider, was going away from him. Further, the evidence of P.W.3 clearly indicate that it was dark by then. Therefore, he seeing them in the darkness and later identifying them three months thereafter in the court 27 appears to be doubtful. As seen from the evidence, three months after he was examined by the Police, he was called by the police for identifying the accused in sub-jail, Razole or Amalapuram in the presence of Magistrate wherein he identified A2. Strangely, he does not exactly say the place where he identified accused. He is not sure whether it was in Sub-Jail, Razole or Amalapuram.
30. Further, none of the persons who are present at the scene, more particularly owners of the shop were examined by the prosecution. Reasons are not forthcoming as to why they were not examined. Even the evidence of the persons who were examined as eyewitnesses to the incident does not inspire confidence. Hence, their evidence, in our view, more particularly the evidence of P.Ws.1,2,3,4 and 6 cannot be believed to base a conviction against A2.
31. At this stage, it is to be noticed that P.W.22 - Sub- Inspector of Police received information about the incident at 7.30 PM. He made General Diary entry of the information as per the instruction of C.I. of Police. By.8.30 PM he proceeded to Sakhinetipalli and found the dead body of the deceased on punt with injuries. On instructions, he deputed one H.C. and asked him to enquire about the accused and go to the Police Station. Though he went to the scene of offence at 8.30 PM on telephonic information, he did not examine anybody to know as to how the incident 28 occurred and the persons responsible for the incident. His evidence is silent on this aspect. Further, he did not make any effort to find out as to who those two culprits are. Simply he came back to the Police Station by posting a guard at the scene. Subsequently, at 11.00 PM a report is said to have been given which reached the Magistrate with a further delay.
32. From the above it is evident that even prior to lodging of the report, there was vague information to the Police pursuant to which P.W.22 proceeded to the scene of offence, but, however, did not collect any material to find out as to how the incident happened, leave alone the names of the assailants. However, he tried to overcome the situation by stating that no body gave statement during his stay at the scene of offence. It is very strange as to how he can keep quiet without examining the owner of the punt or the persons who operate the punt as they could not have left the punt and go away. Definitely the persons who run the punt viz., Driver, Operator and the Navigator cannot leave the punt at ferry and leave the place. Since they were projected as eyewitnesses to the incident, definitely they would have been the best persons to be examined immediately. Though he claims to have gone to the scene of offence at 8.00 PM, he never made any effort to examine, more particularly P.Ws.2 and 3. Therefore, the argument of 29 the learned counsel for the appellant that the subsequent report given by P.W.1 at 11.00 PM is hit by Section 162 Cr.P.C. cannot be brushed aside.
33. P.W.5 did not support the case of prosecution and he was turned hostile by the prosecution. P.W.9 is none other than the brother of the deceased who was working as Deputy Superintendent of Police at the relevant point of time. Though he was not an eyewitness to the incident, he was examined to speak about the disputes and the relationship between the deceased and P.W.1. To a suggestion that he was instrumental for fabricating the case was denied by him. He further admits that he never influenced any of the Police Officers to give police protection to the deceased. To a suggestion that he was present in the Court and that he accompanied C.I. along with witnesses to the house of the advocate was denied by him. His evidence with regard to the incident proper may not be of much relevance, but, definitely the evidence of other witnesses show that he played a crucial role in taking the witnesses to the house of advocate for tutoring. P.Ws.11 and 12 did not support prosecution and were treated hostile. P.W.10 only deposed about receiving information from his relatives at 8.00 or 8.30 PM about the death of his father, pursuant to which he came to the said village. P.W.14 is the photographer who took photographs of the scene of offence, 30 while P.W.15, who is Junior Assistant, Sakhinetipalli Panchayat, speaks about handing over of mahazar report to him by Amin, which he displayed in the notice board of the panchayat. All other witnesses are official witnesses.
34. Having regard to the conduct of P.W.1, which does not inspire confidence for many a reason, which we have discussed above and since evidence of P.Ws.2 and 3 is outcome of tutoring by the C.I. of Police along with P.W.9 (L.W.14) in the office of an advocate two days prior to giving evidence, their conduct in not informing anybody nor taking any steps when the body was on punt throws doubt about they witnessing the incident. There was delay in lodging the report; none of the family members, who were alleged to have been informed about the incident, proceeded to the scene of offence to see the deceased and none of them took any steps to inform the police at least over phone.
35. For all the reasons stated above and in the absence of any motive for the accused to attack the deceased, we feel that the benefit of doubt can be extended to the accused.
36. Accordingly, the Criminal Appeal is allowed setting aside the conviction and sentence recorded against the appellant herein for the offence punishable under Sections 302 IPC by the I Additional District and Sessions Judge, East Godavari District at Rajahmundry in S.C.No.8 of 2008. 31 Consequently, the appellant/accused No.2 shall be set at liberty forthwith, if not required in connection with any other case.
Miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR _______________________ JUSTICE J.UMA DEVI Date : 03.01.2020 skmr