Andhra Pradesh High Court - Amravati
Boya Rajesh, Kurnool Dt Anr., vs State Of Ap., Rep. Pp., on 8 January, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar, M.Ganga Rao
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. GANGA RAO
Criminal Appeal No. 470 of 2014
JUDGMENT:(Per Hon'ble The Acting Chief Justice C.Praveen Kumar)
1) Accused No. 1 and 2 in Sessions Case No. 90 of 2012 on the file of the II Additional Sessions Judge, Kurnool at Adoni, are the appellants herein. Originally, Accused No. 1 to 4 in the above Sessions case was tried on two Charges. The first Charge was against Accused No. 1 and Accused No. 4 for the offence punishable under Section 302 I.P.C.; while second Charge was under Section 302 read with Section 34 of IPC against Accused No. 2 and Accused No. 3. By its Judgment, dated 22.04.2014, while acquitting Accused No. 3 and 4, the learned Additional Sessions Judge, Adoni, convicted Accused No. 1 and 2 for the offence punishable under Section 302 r/w. 34 IPC and sentenced each of them to suffer imprisonment for life and also to pay a fine of Rs.1,000/- each. Challenging the same, the present appeal came to be filed by Accused No. 1 and Accused No. 2.
2) The substance of the Charge against the accused is that, on 05.10.2009 at about 9:00 hours, near Srinivasa Junction in Yemmiganur Town, caused death of Harijana Gopalam Prabhudas @ Prabhu [the 'deceased'] by hacking him with sickles. 2
3) The facts, as culled out, from the prosecution witnesses are as under:
i) PW1 is the Wife of the deceased, while PW3 and PW4 are Mother and younger Brother of the deceased. PW2 is closely related to the deceased and PW1. PW5 and PW6 were examined as eye witnesses to the incident. The deceased is said to be a Hamali by profession. PW1 knows the accused and other witnesses. It is said that, deceased was a close friend of Accused No. 1. The deceased was a trainer of Kattesamu and other martial arts.
ii) It is said that, about a week prior to the date of incident, there was a quarrel between Accused No. 1 and the deceased. The village elders intervened and pacified the matter.
Accused No. 1 used to call the deceased over phone and abuse him in filthy language. Sometime prior to the incident, the deceased took Accused No. 1 to a place near Z.P. High School and questioned him as to why he is moving with other persons. Accused No. 1 assured that he has no malice and that they have no plans to harm the deceased. Thereafter, the deceased returned home. However, Accused No. 1 went to the Police Station and lodged a report against the deceased, Sundar Raju and James. After the release of the deceased on bail, PW3 who is mother of the deceased intervened and pacified the dispute between Accused No. 1 and the deceased. This incident took place about four months prior to the date of incident.
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iii) On the date of the incident, at about 8.00 PM, Accused No. 1 called the deceased over mobile phone and asked him to come out as he intends to discuss some issue. There was some heated discussion over phone and thereafter the deceased left the house informing PW1 that he will come back after sometime. At about 5.00 PM, the deceased informed PW5 and PW6 that Accused No. 1 is challenging him and so he asked them to accompany him. As their request to keep the deceased away proved futile, they along with the deceased went on a motor cycle to Srinivasa Talkies Junction. It is said that, in their presence, Accused No. 1 and deceased quarreled and fought with each. PW5 and PW6 intervened and separated them. When they were taking the deceased back, Accused No. 1 is said to have hit the deceased with a reaper from the back side of the head. Thereafter, Accused no. 2 attacked the deceased with the hunting sickle on the neck area of the deceased from back side. On receiving blows, the deceased fell down on the ground with bleeding injuries. The accused tried to attack PW5 and PW6 but they ran away from the scene.
iv) At 9.00 PM, PW5 and PW6 went to the house of PW1 and informed about the incident. On receiving information about the incident [according to PW1 from an auto driver] that some unknown persons hit the deceased, herself along with PW4 and one Prakash Babu went to the place and found the deceased lying with head injury. Immediately, they shifted the deceased to Government Hospital, Yemmiganur. After giving a preliminary 4 treatment, the deceased was shifted to Government General Hospital, Kurnool, for better treatment. On the way to Kurnool, the deceased died. After the dead body was brought back to Government Hospital, Yemmiganur and while PW1 was in Government Hospital in Yemmiganur, the SI of Police came to hospital and recorded her statement. Ex.P1 is the said statement.
v) The evidence of PW11- the investigation officer is to the effect that, on 05.10.2009 at about 12.00 midnight, while he was in the Police Station, PW1 came to the Police Station and gave a statement [Ex.P1], basing on which, a case in Cr. No. 180/2009 came to be registered under Section 302 r/w. 34 IPC. Ex.P7 is the FIR. On the next day morning at about 6.00 AM, he went to Government Hospital, Yemmiganur and in the presence of PW8 and another, conducted inquest over the dead body. Ex.P3 is the inquest report. Thereafter, the dead body was sent to postmortem examination. PW10 - Civil Assistant Surgeon, Community Hospital, Yemmiganur, conducted autopsy over the dead body and issued Ex.P6 the postmortem certificate. According to him, the cause of death as due to shock and hemorrhage. Thereafter, PW11 visited the scene of offence and prepared a panchanama of the scene under Ex.P8. Further investigation in this case was taken over by PW12- the SI of Police, who after receipt of a copy of the FIR, examined PW1 to PW4 and recorded their statements. He verified the scene and examined PW5 and PW6. It is said that, on 01.11.2009, on credible information, he proceeded to Shilpa Estate and found the four accused in the case near Jogulamma 5 Temple. He took them into the custody and recorded their confession. However, no incriminating material came to be recovered. After obtaining all the documents, he filed charge- sheet, which was taken on file as P.R.C. No. 55 of 2009 on the file of the Judicial Magistrate of First Class, Yemmiganur.
vi) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. came to be furnished. Since the offence is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. On appearance of the accused, Charges as referred to earlier came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined PW1 to PW12 witnesses and got marked Exs.P1 to P8. Out of 12 witnesses examined by the prosecution, PW4 and PW7 did not support the prosecution case and they were treated hostile by the prosecution. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, however did not adduce any defence evidence except marking Ex.D1 to Ex.D9 contradictions and the portions in Section 161 Cr.P.C. statements of the witnesses.
vii) Relying upon the evidence of PW5 and PW6 coupled with the evidence of PW1, PW2 & PW3, the learned Sessions Judge while acquitting Accused No. 3 and 4, convicted Accused 6 No. 1 and 2 under Section 302 r/w. 34 I.P.C. Challenging the same, the present appeal came to be filed.
4) The learned Counsel appearing for the Appellants would contend that, there is absolutely no legal evidence to connect the accused with the crime. It is said that, even the Charge has been wrongly framed which by itself is sufficient to throw out the case. It is urged that the evidence of so called eye witnesses is a complete improvement from what they stated in their earlier statements. A reading of the evidence, as a whole, would indicate that none of them have seen the incident. It is his plea that, even the FIR which is given under Ex.P1 is a doubtful document, as its origin remains a mystery. When once the FIR is false, it is pleaded that entire fabric of the case collapses and the Appellant/Accused are entitled for the benefit of doubt.
5) On the other hand, the learned Public Prosecutor would contend that, the evidence of PW1 to PW3 is consistent with regard to motive. The other evidence with regard to the incident is spoken to by PW5 and PW6. It is his plea that, even though there is some discrepancy as to when and where the FIR came to be lodged, but, that by itself does not create any suspicion over the prosecution case. In other words, his argument is that the conviction and sentence imposed by the Trial Court requires no interference.
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6) The points that arise for consideration is, whether the prosecution was able to establish the guilty of the accused for the offence punishable under Section 302 read with 34 IPC?
7) Before going into the incident of attack, we would like to discuss about the motive for the accused to attack the deceased. It is said that, about four months prior to the incident, the deceased took Accused No. 1 to a place near Z.P. High School and questioned him as to why he is moving with other persons. Accused No. 1 assured the deceased not to worry about his acquaintance with other persons and that they have no plan to harm the deceased. Immediately, thereafter, Accused No. 1 lodged a report against the deceased and others which lead to his arrest. After his release on bail, there was a compromise pursuant to which PW3, who is mother, is said to have pacified the matter between Accused No. 1 and deceased. This was about four months prior to the incident. The evidence on record shows that after the said incident, the accused and deceased were friendly and close to each other. About a week prior to the date of the incident, the deceased called Accused No. 1 on phone and started abusing him in filthy language. From the evidence of PW1 it appears that, there was a quarrel between both of them. Even the evidence of other witnesses, namely, PW1, PW3 and PW4 disclose the same. But, however, their evidence is only based on the information said to have been furnished by PW1 and PW2.
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8) But, the evidence of PW11 -the investigation officer show that PW1 did not state before him that a week prior to the date of incident, Accused No. 1 and the deceased quarreled with each other and elders pacified the matter. Further, PW1 in her earlier statement recorded by police under Section 161 Cr.P.C. did not state that on the date of incident Accused No. 1 called deceased over phone and abused him in filthy language and there was some altercation over phone. Her earlier statement also does not disclose that after discussing all aspects with Accused No. 1, the deceased returned home [incident which took place a week prior to date of incident]. Similarly, PW3 in her evidence stated before PW11 -investigation officer that Accused No. 1 discontinued coming to her house to meet the deceased. She also did not state before him about the deceased questioning Accused No. 1 as to why he is moving close with others. PW3 also did not state before him about Accused No. 1 assuring the deceased that he need not be afraid of Accused No. 1 moving with others and that they have no plan to harm the deceased. Similarly, PW4 has also not stated before the investigation officer that Accused No. 1 used to visit their house now and then. PW4 has not stated before him that the deceased questioned Accused No. 1 as to why he is moving with the enemies of the deceased and as to why Accused No. 1 and other are planning to kill him, to which Accused No. 1 assured that no harm would be caused to the deceased and after taking assurance the deceased came home. It would be useful to extract 9 the relevant admission in the evidence of PW11, which are as under:
"It is true that P.W. 1 did not mention the name of A2 in her statement. It is true that P.W. 1 did not say before me that a week days before this incident A1 and my husband quarreled and elders have pacified the same. It is true that P.W. 1 did not state before me that on the date of incident A1 called my husband over phone and abused him in filthy language and that there was altercation over phone. It is true that P.W. 1 has not stated before me that she was informed by the eye witnesses that A1 and A2 and others have beat her husband. P.W.1 has stated before me as in Ex.D.1."
9) From the evidence of these witnesses, it is clear that their version with regard to the motive appears to be an improvement from what they stated earlier. Except the incident, which is said to have taken place about four months prior to the incident, which is spoken to by PW3 alone, the other incident said to have taken place a week prior, was not referred to by any of the witnesses in their earlier statements. Even the version of the witnesses with regard to Accused No. 1 abusing the deceased on telephone was not spoken to either by PW1, PW3 and PW4 in their earlier statements, leave alone the incident of abusing which took place a week earlier. Therefore, it cannot be said that the prosecution were able to prove beyond reasonable doubt the motive to kill the deceased.
10) Be that as it may, coming to the incident proper, the evidence of PW1 is to the effect that on the date of incident at about 8.00 PM, after receiving a phone call from Accused No. 1 the deceased left the house and at about 9.15 PM, a auto driver came 10 to the house and informed that somebody beat the deceased and he is lying on the road. This made them to go to the scene of offence and shifted the injured to the hospital. But, the evidence of PW5 and PW6 is totally contrary to the evidence of PW1 with regard to the deceased leaving the house and also the source of information about the incident. According to PW5, on the date of incident, he and Vali [PW6] were standing at Kalagotla road. At about 5.00 PM, the deceased came to them and informed that Accused No. 1 is challenging him and asked them to accompany him. Their advice proved futile. But, however, at his request, both of them went on a motor cycle to Srinivasa Talkies Junction. There, they saw Accused No. 1 and 2 at the place. In their presence, Accused No. 1 and deceased quarreled and fought with each other. PW5 and PW6 intervened and separated them. While they were taking the deceased with them, Accused No. 1 and 2 are said to have hit him. Accused No. 1 hit the deceased with a reaper from the backside on his head, while, Accused No. 2 attacked the deceased with hunting sickle on the neck area of the deceased from back side, as a result of which, the deceased fell down and immediately thereafter at about 9.00 PM they went and informed PW1 about the incident.
11) But the version of PW6, who was with PW5 is different. According to him, while he and PW5 were at Kalugotla road at about 8.45 PM, the deceased came and informed that Accused No. 1 and 2 were calling him and asked them to accompany him. All three of them went on motor cycle to a place nearby Srinivasa 11 Theatre. Suddenly, Accused No. 1 and deceased started quarrelling and both of them caught hold of each other's collar. PW5 and PW6 separated them. At that time, Accused No. 1 beat the deceased with a reaper on his head and Accused No. 2 hacked the deceased with a knife. Again, Accused No. 2 hacked the deceased with hunting sickle on the backside of the head, as a result of which, the deceased fell down. Being afraid of seeing the incident, they ran away and went to the house of the deceased and informed the incident to PW3. Thereafter, PW1, PW3 and PW4 went to the scene of offence.
12) If we analyze the evidence of these witnesses, it is clear that, the evidence of PW1 is to the effect that the deceased left the house at 8.00 PM after receiving a call from Accused No. 1. The evidence of PW5 is to the effect that he met the deceased at 5.00 PM only at Kalagotla road and thereafter he along with PW6 went to Srinivasa Talkies on a motor cycle. While, the evidence of PW6 is to the effect that the deceased met him at 8.45 PM and informed about Accused No. 1 and 2 calling him, as such, three of them went together.
13) After the incident, PW5 and PW6 came back to the house of the deceased and according to PW5, he informed about the incident to PW1 and the evidence PW6 is to the effect that he informed PW3. It is not a case where PW5 or PW6 are strangers to PW1. They are known to each other. If that is so, definitely, PW1 in her statement would have mentioned the names of persons who 12 informed about the incident. On the other hand, her version is that one auto driver came and informed that somebody beat the deceased. Therefore a doubt arises as to whether PW5 and PW6 witnessed the incident.
14) Further, it is also to be noted that, even the evidence of PW6 appears to be false for the reason that, his evidence is that, he went and informed about the incident to PW3, who is mother of the deceased and thereafter all of them went to the scene of offence. But the evidence of PW3 is to the effect that, on the date of incident, she went to another village to attend a function and the incident in question took place during the night of the same day. On the following morning she was informed by PW1 about the incident stating that Accused No. 1 called the deceased on telephone and asked him to come to Srinivasa Circle and when the deceased went, Accused No. 1 and 2 attacked him. From the above, it is evidence that the source of information which made PW1 to lodge the report is inconsistent and also the time when the deceased left the house. All the three witnesses are giving three different versions about this aspect.
15) It would be useful to refer to the evidence of these three witnesses, which is as under:
"PW.1 ........... On one day at about 8.00 PM the Accused No. 1 called my husband over mobile and called my husband to come out of the house and he had something to discuss with him. There was heated altercation over the mobile itself. After that my husband left the house informing me that he would come back after sometime. At about 9.15 PM an auto driver came to my house 13 and informed me that somebody beat my husband and he is lying on the road at some place".
"PW.5. ........ On the date of the incident, myself and Vali were standing at Kalatogla road at about 5.00 p.m. The deceased Prabhudas came to us at 5.00 p.m. and informed us that A-1 is challenging him so, deceased asked us to accompany him. We advised deceased Prabhudas not to challenge A-1. But at his request myself, Vali and Prabhudas went on a motor cycle to Srinivasa Talkies junction. We saw A-1 and A-2 at that place. In our presence, A-1 and Prabhudas quarreled and fought. Myself and Vali intervened and separated them. We were taking back Prabhudas with us. Meanwhile, A-1 hit Prabhudas with a reaper from the backside on his head. Immediately A-2 attacked the deceased with hunting sickle (Yerukala Kodavali) on the neck area of the deceased from back. The accused tried to attack on us also, therefore, we fled away from the scene. This incident took place at about 8.30 p.m. At about 9.00 P.M., we went to the house of the Prabudas and informed P.W.1 about the incident".
"PW.6 ............. Myself and James were at Kalugotla road at about 8.45 p.m., on 5-10-2009. At that time, Prabhudas came to us and informed that A-1 and A-
2 are calling him. So, deceased Prabhudas asked us to accompany him. Myself, PW5 and Prabhudas went by motor cycle to a place nearby Srinivasa Theatre. We found A-1 and A-2 at that place. Suddenly A-1 and Prabhudas started quarreling. They were infact fighting by catching hold the color of each other. Myself and James tried to separte Prabhudas and A-1. Meanwhile, A-1 beat Prabhudas with a reaper on his head. Accused No. 2 hacked deceased Prabhudas with a knife. Again the witness said that accused No. 2 hacked the deceased with hunting sickle on the backside of the head. Resultantly, Prabhudas sustained bleeding injury and fell down on the ground. We were afraid by seeing the incident and ran away. Then we went to the house of the deceased and informed about the incident to Smt. Yellamma (PW3). At that time, P.W.-1, P.W.-3, P.W.-4 and Prakash Babu were there."
"PW3 ........... " About 3 ½ years back on the date of the incident I went to another village to attend a function. During the night of the same day this incident had taken place. On the following morning I was informed by PW1 that at about 8.30 PM A1 called my son Prabhudas over phone and asked him to come down to Sreenivasa Circle. Accordingly my son Prabhudas went there. The accused No. 1 and 2 and other alleged attacked on him with stick and hunting sickle.14
16) Coming to the lodging of report, the evidence of PW1 is to the effect that, after the death of the deceased, they brought back the dead body to the Government Hospital, Yemmiganur and while she was there in the hospital, SI of Police came to the hospital and recorded her statement. Witness identified her signature over the statement and the statement is marked as Ex.P1. But the evidence of PW11 is to the effect that, on 05.10.2009 at about 12.00 midnight while he was in the Police Station, PW1 came to the Police Station and gave a statement [Ex.P1], basing on which, he registered a case in Cr. No. 180/2009 under Section 302 r/w.
34 IPC. Ex.P7 is the FIR. It would be apposite the extract the evidence of PW1 and PW11, which are as under:
"PW-1 ...... Then immediately myself, Sarala and Prakash Babu shifted my husband to the Government Hospital, Yemmiganur. After preliminary treatment he was shifted to Government General Hospital, Kurnool, for better treatment. While going towards Kurnnol on the way itself my husband died. Some eye witnesses informed me that my husband was beaten by A1, his paternal uncle Kunti Naganna (A2) and some other friends. Because my husband died on the way to Kurnool agains the dead body was brought back to Government Hospital, Yemmiganur. When I was there in Hospital, the SI, Yemmiganur came to the hospital and recorded my statement. Witness identified her signature over the statement. The statement is marked as Ex.P1".
"PW11- On 05.10.2009 at about 12.00 midnight while I was in the Station, Harijana Pushpa [P.W.1] came to the Police Station and gave a statement. I recorded the statement of PW.1. Basing on the statement given by P.W.1, I registered a case in Cr. No. 180/2009 under Section 302 r/w. 34 IPC and issued FIR. It is marked as Ex.P7".
17) From the evidence referred to above, it is clear that, there is any amount of doubt as to how the FIR came into existence. On the one hand, the evidence of PW1 is that, her statement was 15 recorded in hospital, while, the evidence of investigation officer [PW11] is to the effect that PW1 came to the police station and lodged the report [Ex.P1]. If really everything was fine as contended by the learned Public Prosecutor, there was no reason for the discrepancies pointed out.
18) Apart from that, it is also to be noted that the FIR which is placed on record as Ex.P1 would show that keeping the earlier disputes in the background Rajesh and his followers have killed the deceased by beating him with weapons on the head. But, reading of the contents as a whole does not indicate as to how Rajesh and his followers were responsible for the incident. As stated earlier, the auto driver who informed about the incident stated that somebody killed the deceased and his body was lying on the road. There is no reference to PW5 and PW6 as the persons who informed her about the incident. Things would have been different had at-least the names of the eye witnesses and others disclosing about the incident to PW1 was reflected in Ex.P1. In the absence of the same, an effort is now made to implicate the accused in the crime by adding the names. Further, during the inquest, the names of the assailants are not shown, thereby meaning that till then none were aware as to who the assailants were.
19) Coming to the incident proper, PW5 and PW6 were examined as eye witnesses to the incident. According to them, after reaching the Srinivasa Talkies, they saw Accused No. 1 and 2 at the scene. 16 In their presence Accused No. 1 and deceased quarreled and fought with each other. Seeing that, PW5 and PW6 intervened and separated them. While they were taking the deceased back, Accused No. 1 hit the deceased with a reaper form the backside on his head, while, Accused No. 2 attacked the deceased with hunting sickle on the neck area of the deceased from back side as a result of which the deceased fell down. It would be apposite to extract the relevant portion of PW5 cross-examination, which is as under:
".......... At the time when Prabhudas was beaten by A-1 with reaper he was facing towards west. Prabhudas was standing in my opposite direction. I was facing towards east. Vali was standing by the side of Prabhudas facing towards North. The place of offence is busy locality. But witness volunteers thatat the time of offence there were no other persons. Accused No. 2 was standing by our left side i.e., towards north side. After the first assault given by A1, A2 attacked on the deceased. A- 2 went to the back of dedceased and attacked on him. Accused No. 2 gave a blow holding the sickle straight and upright. It is not true to suggest that I idd not witness the incident. It is not true to suggest that A- 1 and A-2 did not attack on the deceased Prabhudas with reaper and hunting sickle. The deceased fell down on the ground and his head is facing towards west.
Srinivasa theatre is facing towards sought. There is nearly half acre of open land in front of the theatre. There are several bunks after eh said open area. There are shops lime soda shop, carpernter shop, cane juice stall. It is true that it is one of the busy centers of Yemmiganur town. It is true hat there are several shops on either sides of the raod upto Nagaladinne road. Opposite to the scene of offence also there are shops and hotels. It is true that normally there will be traffic police at some distance from the scene of offence nearby Srinivasa Talkies".
20) While the evidence of PW6 is to the effect that, when PW5 and PW6 tried to separate the deceased and Accused No.1, the Accused No. 1 beat the deceased with a reaper on his head and 17 Accused No. 2 hacked the deceased with a knife. However, he corrects himself stating that Accused No. 2 hacked on the backside of the head as a result of which the deceased fell down on the ground. This portion of the evidence PW5 and PW6 appears to be an improvement from what they have stated before the police during their investigation. PW11 in his evidence categorically states that, "PW5 stated before him that, he and PW6 separated Accused No. 1 and deceased. He did not state that while they were taking the deceased with them, Accused No. 1 beat on the head of the deceased from the backside with a reaper and Accused No. 2 hacked with hunting sickle on the neck area of deceased from back side". This version in the earlier statement is something different which is marked as Ex.D7 and Ex.D8. Similarly, the investigation officer admits that PW6 never stated before him in the earlier statement that while he [PW6] and PW5 were separating the accused and the deceased, Accused No. 1 beat the deceased with a reaper. His evidence also discloses that PW6 never stated before him that Accused No. 2 hacked the deceased with hunting sickle on the back side of the head. However, his version was something different which came to be marked as Ex.D9. It would be useful to extract the relevant admission in the evidence of PW11, which are as under:
"It is true that PW6 has not stated before me that himself and James separted the accused and Prabhudas when they were quarreling. It is true that PW6 has not stated before me that himself and PW5 were separating Prabhudas A1 beat with a reaper. It is true that PW6 has not state before me that A2 hacked the deceased with Yerukali Kodavali from the back side. It is true that PW6 has stated before me as in Ex.D9. It is 18 true that PW6 has not stated before me that on the date of incident a2 also made a phone call to the deceased".
21) From the evidence of investigation officer, it is evident that the witnesses examined as eye witnesses to the incident are not speaking truth. Their evidence, in our view, is only unreliable and cannot be made the basis to convict the accused. At this stage, it is to be noted that, their evidence is inconsistent with medical evidence as well. While the evidence of these witnesses is to the effect that two blows were given by Accused No.1 and 2 from behind on head and neck, the postmortem Doctor finds only one injury on the left back of ear to right side occipital bone near to right ear and a contusion over the left forearm. Therefore, the oral evidence of PW5 and PW6 is also found to be inconsistent with medical evidence. At this stage, it is very much relevant to know who these two witnesses and the deceased are.
22) PW12 - investigation officer in his evidence categorically states that, he summoned both P.W.5 and P.W. 6 to the Police Station and examined them. They are the close friends of the deceased Prabhudas. The evidence shows that, PW5 is involved in several criminal cases and that he does not whether any rowdy sheet was opened in the names of PW5 and PW6. He further states that, there were number of Excise Case, N.D.P.S. Act cases, Gaming Act cases against the deceased Prabhudas. He further states that, the deceased Prabhudas had become menace to the Society and a rowdy sheet was opened against him. 19
23) The evidence of PW12 further shows that he took up investigation within two days after the incident and as such, he could not collect any material at the scene to show that incident of this nature occurred at the scene. The evidence of PW3 and other witnesses show that there were number of enemies to the deceased.
24) Coming to the incident proper, PW5 and PW6 were examined as eye witnesses to the incident. PW1, PW2, PW3 and PW4 who are close associates of deceased were not examined as eye witnesses to the incident and they were only informed about the incident by PW4. Hence, their evidence may not be much relevance to discuss the incident in question.
25) At this stage, it is also to be noted here that, when PW5 and 6 are so close to each other, it is very strange to believe as to how they would have left the injured / deceased at the scene and returned to the house of PW1. Even assuming that, they have returned to the house of PW1 after the incident, definitely, they would have accompanied PW1 and others to the scene and take him to the hospital. Their conduct in going home and coming to the hospital on the next day is quite unnatural, which is another circumstance to disbelieve their presence along with other circumstances which we referred to earlier.
26) For the aforesaid reasons, we are of the opinion that the prosecution failed to establish the guilt of the accused no. 1 & 2 beyond all reasonable doubt.
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27) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused in the Judgment, dated 22.04.2014, in Sessions Case No. 90 of 2012, on the file of the II Additional Sessions Judge, Kurnool at Adoni, for the offence punishable under Section 302 read with Section 34 I.P.C., is set-aside and they are acquitted for the said offence. Consequently, the appellants/accused shall be set at liberty forthwith, if they are not required in any other case or crime.
28) Consequently, miscellaneous petitions, if any, pending shall stand closed.
________________________________ JUSTICE C. PRAVEEN KUMAR _______________________ JUSTICE M. GANGA RAO Date: 08.01.2020 SM.
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M. GANGA RAO Criminal Appeal No. 470 of 2014 Date: 08.01.2020 SM.