B.B.Pedda Maddilety A1, Kurnool 5 ... vs State Of Ap., Rep. Pp. Hyd., on 6 August, 2020

[Cites 33, Cited by 0]

Andhra Pradesh High Court - Amravati

B.B.Pedda Maddilety A1, Kurnool 5 ... vs State Of Ap., Rep. Pp. Hyd., on 6 August, 2020

Author: C.Praveen Kumar

Bench: C.Praveen Kumar, R Raghunandan Rao

                                         1



       THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                       AND
      THE HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                   Criminal Appeal No. 450 of 2014


JUDGMENT:

(Per Hon'ble Sri Justice C.Praveen Kumar)

1) A1, A5, A6, A9, A10 and A11 are the Appellants herein. Originally, these six [06] accused along with six [06] more were tried on seven [07] charges.

Sl.   Charge        Against              Finding                   Sentence

 1    Sec. 148,       A1 to     (a) A1, A5, A6, A9, A10 Simple
      302, 302        A12           & A11 are found imprisonment               for
      r/w. 149                      guilty   for     the two years.
      IPC                           offence punishable
                                    under Section 148
                                    IPC;
                                (b) A1, A6, & A9 are          Imprisonment     for
                                    found guilty for the      life and pay fine of
                                    offence punishable        Rs.1,000/- each, in
                                    under Section 302         default to undergo
                                    IPC;                      SI for one year.

                                (c) A5, A10 & A11 are         Imprisonment     for
                                    found guilty for the      life and pay fine of
                                    offence punishable        Rs.1,000/- each, in
                                    under Section 302         default to undergo
                                    r/w. 149 IPC.             SI for one year.

 2    Sec. 324         A5       Guilty for the offence Simple
      IPC                       punishable       under imprisonment            for
                                Section 324 IPC for two years.
                                causing hurt to PW5.

 3    Sec. 324 A1 to A4, A1, A6, A9, A10 & A11 Simple
      r/w. 149  A6 to    are found guilty for the imprisonment                 for
      IPC        A12     offence     punishable two years.
                         under Section 324 r/w.
                         149 IPC for causing
                         hurt to PW5.

 4    Sec. 324         A1       Guilty for the offence Simple
      IPC                       punishable       under imprisonment            for
                                Section 324 IPC for two years.
                                causing hurt to PW6.
                                    2



 5     Sec. 324    A2 to    A5, A6, A9, A10 & A11 Simple
       r/w. 149    A12      are found guilty for the imprisonment   for
       IPC                  offence     punishable two years.
                            under Section 324 r/w.
                            149 IPC for causing
                            hurt to PW6.

 6     Sec. 506   A1 & A5   Guilty for the offence Simple
       IPC                  punishable       under imprisonment     for
                            Section 506 IPC.       one year.

 7     Sec. 506 A2 to A4, A6, A9, A10 & A11 are Simple
       r/w. 149  A6 to    found guilty for the imprisonment         for
       IPC        A12     offence     punishable one year.
                          under Section 506 r/w.
                          149 IPC.

All the sentences were directed to run concurrently.

2) The gravamen of the charges against the accused is that, on 11.05.2008 at about 1.00 PM, all the accused found themselves into an unlawful assembly and in pursuance of common object of that assembly, caused the death of one Telugu Ranganna ['deceased'] near Gokulapadu village. Further, A3 is said to have caused hurt to PW5 by means of dagger, while, A1 is said to have caused injuries to A6. Apart from that, all the accused threatened PW1, PW3 and PW5 with dire consequences.

3) The facts, as culled out, from the evidence of prosecution witnesses are as under:

i) All the accused and the material witnesses are residents of Gokulapadu village, Krishnagiri mandal, Kurnool district.

A1 and A2 are brothers. A10 is the son of A9. A9 is the son of A2. A3, A4 and A12 are brothers and A6, A7 and A8 are brothers inter se.

ii) PW3 is the elder brother of PW1. All the material witnesses know the accused as they are residents of the same village. The father of PW1 and PW3, by name, Telugu Ranganna, was murdered about two years back. His father had two wives. The mother of PW1 is the first wife and his second wife is one Thirupalamma who has two sons through the father of PW1 who resides at Veldurthy.

iii) The elder brother of PW1, by name, Pedda Venkateswarlu, contested for the post of Sarpanch of Gokulapadu village in the year 2006. He was supported by the Congress Party. One Moulali stood as a rival to the brother of PW1, supported by A1 and others who belong to Telugu Desam Party. The brother of PW1 was elected as Sarpanch and since then enmity developed between A1 and the brother of PW1. It is said that, the father and brother of PW1 who took up many developmental works in the village were gaining popularity. While so, one day, in the year 2007 when the third brother of PW1 was at Ramalayam, A1 came and beat him questioning the activities taken up by the brother and father of PW1. A report about the same was said to have been lodged.

iv) On 11.05.2008, the deceased along with his two sons, namely, PW1 and PW3 left their house to go to a weekly market at Veldurthy. All three of them went to the auto 4 stand of the village at about 12.40 PM and found PW5, one Yella Reddy and Vadla Lakshmaiah at the auto stand. All of them boarded the auto of one Harijana Bandari Ramudu [PW11] to go to Veldurthy. The deceased sat on the left side of the auto driver, while others were in the back seat. After crossing a kilometre from their village, and when the auto was reaching Cheruvu Vanka, one Boya China Hanumanthu [A6] came across the auto armed with a hunting sickle in his left hand and a dagger in his right hand followed by A1 to A5 and A7 to A12. It is said that, A1 and A5 came to that side of the auto where the deceased was sitting and dragged him out of the auto by holding his shirt. Seeing the same, the driver of the auto escaped from the scene. The deceased was made to fell on the ground and thereafter A6 is said to have stabbed the deceased with the dragger on the stomach. It is also said that, A1 dragged the deceased and stabbed him over the stomach stating that he was responsible for getting good name in the village and bad name to the accused. So saying, he exhorted other accused to attack the deceased. Then, A2, A3, A4, A7 and A10 stabbed the deceased with sickles in stomach. It is said that, intestines of the deceased came out with profuse bleeding. A8 stabbed the deceased with a dagger over his face causing injury on left side of the cheek extending towards back of the ear. The 5 deceased struggled for sometime and later collapsed. At that time, A6 took the hunting sickle into his right hand and hacked the deceased on back side of the neck. A11 made an attempt to stab the deceased and when he raised his hand to ward off the blow, it landed over the thumb and index finger. A9 is said to have stabbed the deceased over his forehead with dagger, while, A12 caused an injury in the same place with dagger. It is said that, PW1 and others saw the incident by hiding on the other side of the auto. At that time, PW6 who was present in the nearby fields and PW7 who was coming on a motorcycle, rushed to the spot and raised cries. PW1 who is elder brother of PW3 and PW5 also rushed to the spot where the deceased was lying. A1 and other came against them threatening to kill by showing the daggers. It is said that, A5 attacked PW5 with a dagger causing an injury over left side of neck and also an injury with a dagger on his right hand. A1 is said to have caused an injury with a dagger on the nose of PW6 stating "ee nakoduku ikkade unnadu podachandira". Being afraid of the same, all the witnesses ran towards their village while accused ran towards Togarichedu village.

v) The evidence on record also shows that, when PW1 and others were running towards their village, PW1 fell down 6 and received injury over his hands and legs. After reaching the village, PW1 took the motorcycle of his brother-PW3 and proceeded towards police station. On the way, he met the Village Revenue Officer [PW9] and took him to the police station for preparing the report as he is an illiterate. To the dictation of PW1, PW9 is said to have scribed the report, which was handed over to PW18- Sub-Inspector of Police. Ex.P1 is the report. Basing on the same, a case in Cr. No. 37 of 2008 of Krishnagiri P.S., came to be registered for the offences punishable under Sections 147, 148, 302 read with 149 IPC. Ex.P16 is the FIR.

vi) On receiving information about the incident through PW18, the Circle Inspector of Police, Dhone Circle [PW19] rushed to the scene of offence at 2.30 PM and collected Ex.P16 from PW18. In the presence of PW14 and others, he conducted inquest over the dead body of the deceased from 3.15 PM to 5.15 PM. Ex.P9 is the inquest report. During inquest, he seized blood stained earth and control earth, which are placed on record as M.O.13 and M.O.14. He also got prepared a rough sketch of the scene, which is marked as Ex.P17. After completing the inquest proceedings, the dead body was sent for post-mortem examination.

vii) On receipt of requisition from Inspector of Police, Dhone Circle, PW16 - the Civil Assistant Surgeon at Community Health Centre, Dhone, conducted autopsy over the dead body and issued Ex.P11 the post-mortem certificate. He noticed seven [07] external injuries over the body. According to him, the cause of death was due to shock and hemorrhage due to multiple grievous injuries and the time of death was less then six hours prior to commencement of post-mortem examination.

viii) PW19 - Inspector of Police continued with the investigation and seized six empty liquor bottles and six disposable glasses under the culvert near the scene of offence in the presence of PW14 under Ex.P18. Six bottles were marked as M.O.15 and six glasses as M.O.16. On the same day, he proceeded to the village and recorded the statements of PW4. On the next day, PW19 went to Gokulapadu village at 7.30 AM and recorded the statements of PW5 to PW7. He sent PW1, PW3, PW5 & PW6 to the Government Hospital, Dhone, as they sustained injuries.

ix) PW17 who was working as Civil Assistant Surgeon, Community Health Centre, Dhone, examined PW1, PW3, PW5 and PW6 and issued Ex.P12, Ex.P13, Ex.P14 & Ex.P15 wound certificates respectively.

x) PW19 sent the blood stained earth, control earth and blood stained clothes of the deceased to RFSL under Letter of Request under Ex.P19.

xi) On 23.05.2008 while PW19 was at Krishnagiri P.S., received information about the presence of the accused at the cross-roads of Kodumur, Gokulapadu. He reached the said place along with staff and in the presence of PW9, arrested A1, A5, A6, A9, A10 & A11 and recorded the statements of the accused under Ex.P21. It is said that, accused lead them towards south-west of Gokulapadu village and after travelling a distance of 1½ kilometre from Gokulapadu, A1, A5, A6, A9, A10 & A11 showed daggers of various sizes, which were seized from the bushes in the presence of PW9 under Ex.P22 panchanama. Later, he arrested the other accused and remanded them to custody. After completing the investigation and collecting all the documents, he filed a charge-sheet, which was taken on file as P.R.C. No. 60 of 2009 on the file of the Judicial Magistrate of First Class, Dhone.

xii) On appearance of the accused, copies of the documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Special Court under Section 209 Cr.P.C. Basing on the material available on record, 9 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.

xiii) In support of its case, the prosecution examined PW1 to PW19 and got marked Ex.P1 to Ex.P25, beside marking MOs. 1 to 16. 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 but however did not adduce any oral evidence in support of their plea, except marking Ex.D1 to Ex.D31 to show the existence of disputes between them in the village and because of the said disputes, the accused were falsely implicated in the case.

xiv) Appreciating the evidence available on record, more particularly, the evidence of injured eye witnesses, coupled with the medical evidence, the learned Sessions Judge convicted the appellants herein, while acquitting other accused. Challenging the same, the present appeal came to be filed.

4) Sri. Papu Nageswara Rao, learned counsel representing Sri. K. Raghuveer, would contend that, this being a faction case, the evidence have to be weighed with great care and caution. According to him, having disbelieved the case of the prosecution 10 insofar as A2, A3, A4, A7, A8 & A12, though, specific role is attributed to them in the FIR and also by PW1, the trial Court should have rejected the evidence of the witnesses even so-far as the other accused are concerned. In other words, he pleads that, the case being false in respect of some, has to be declared as false in respect of others also, more so, having regard to the circumstances and the facts in issue. He would further submit that, Ex.D23 to Ex.D30 would establish that this is a faction case and that being so, the delay in lodging the report and the report reaching the court, coupled with the over-writings made in the report has to be taken seriously. According to him, this circumstance by itself is sufficient to throw suspicion over the prosecution case. He would further contend that, when the evidence of the witnesses is to the effect that number of accused stabbed the deceased in the stomach and when the medical evidence disproves the same, the entire case has to be viewed with suspicion.

5) He would also submit that, if really PW5 and PW6 received injuries in the course of same transaction, no explanation is forthcoming as to why they were not sent to doctor immediately. Sending them to the doctor on the next day morning, coupled with over-writings in the FIR by the Magistrate show that these injuries were not sustained at the time of the incident. The learned Counsel would further comment that, the presence of 11 PW1 appears to be unnatural, for the reason that, if really he was present at the scene and watched the incident, he will not left his father alone and go to the village. According to him, a reading of the evidence of PW1 does not anywhere show that he came back to see as to whether his father was alive or dead, even after the accused left the scene. According to him, this could not have been the normal human conduct. He would further plead that, even in the report, there is no reference to the injuries sustained by the witnesses. Further, all the witnesses are the supporters of one C. Narayana Reddy, who is inimical towards the accused. Hence, he would contend that, a false case has been foisted against the accused.

6) The same is seriously disputed by Sri. Dushyanth Reddy, the learned Additional Public Prosecutor stating that doctrine of "falsus in uno, falsus in omnibus", does not apply to Indian law. He referred to the judgments of the Supreme Court in support of his plea. He would further submit that, the trial court has separated the grain from the chaff and found the appellants responsible for the incident.

7) Referring to the evidence of the investigation officer, he would contend that, these witnesses in their oral statements have categorically stated about the injury sustained by the witnesses in the hands of the accused. Relying upon the judgment of the Supreme Court reported in 2017 (1) ALD (Crl.) 12 SC 511, he would contend that, mistakes if any committed by the investigation officer cannot be taken advantage of and no benefit can be extended to the accused on that score, more so, when there are injured eye witnesses to the incident.

8) Insofar as the discrepancy with regard to the medical evidence and oral evidence is concerned, he would contend that, the medical evidence being only opinion evidence, much weight need to be given to the oral evidence. Though, there are no bleeding injuries on the body of the witnesses, but, usage of phrase cannot be found fault with, since, these witnesses who are illiterate villagers normally use the phrase "raktha gayam"

for any cut injury. Hence, he would contend that, using of the phrase 'bleeding injury' does not demolish the version of the witnesses and the nature of injury sustained.

9) Insofar as the behaviour of PW1 is concerned, he would contend that, immediately after the attack, he went towards his father along with PW5 and PW6 and when the accused started attacking the witnesses, he along with others ran towards the village, during which time, he fell down and sustained bruises.

Thereafter, he took the motorcycle of PW6 in the village and proceeded to police station for lodging of report. According to him, this cannot be treated as an abnormal circumstance and that there is nothing abnormal in the behaviour of PW1. 13

10) He also submits that, the over-writings on the endorsement made by the Magistrate on the copy of FIR cannot be found fault with, since, the accused never doubted the date and time mentioned therein and no cross-examination was done on the said aspect. Having regard to the above, he would submit that, the finding of the trial court warrants no interference.

11) The points that arise for consideration are:

i) Whether the FIR came to be lodged after due deliberations and confabulations?

ii) Whether the evidence of the eye witnesses and the evidence of two injured eye witnesses can be accepted?

iii) Whether the prosecution was able to prove the guilt of accused beyond reasonable doubt?

iv) Whether the learned Sessions Judge having acquitted six of the accused against whom specific role has been attributed right from Ex.P1, was right in convicting the other six accused?

12) One of the main ground urged by the learned counsel for the Appellant is that, since, some of the accused against whom specific overt acts have been attributed in the first information report and also in the evidence, were acquitted, the same benefit has to be extended to the Appellants as well, in view of the legal maxim falsus in uno, falsus in omnibus. He relied upon a judgment of a Division Bench of the Andhra Pradesh High Court 14 reported in 1956 Crl. L.J. 198 that is, between In re Basireddy Venkata Reddy and others.

13) However, this issue came up for consideration before the Apex Court on number of occasions. In Balka Singh & others v. State of Punjab1, the Apex Court observed as under:-

"It is true that, as laid down by this Court in Zwinglee Ariel v. State of Madhya Pradesh2, and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply."

14) In Ugar Ahir & Ors. v. State of Bihar3, the Court held that, "the maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. The court held that, hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, 1 AIR 1975 SC 1962 2 AIR 1954 SC 15 3 AIR 1965 SC 277 15 therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

15) In Jakki @ Selvaraj & Anr. v. State4, the court held that, "the maxim falsus in uno, falsus in omnibus has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The court held that, all that it amounts to is, that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called `a mandatory rule of evidence'."

16) In Kulwinder Singh v. State of Punjab5 it has been held that the said maxim falsus in uno, falsus in omnibus (false in one false in all) does not apply in criminal cases in India, as a witness may be partly truthful and partly false in the evidence he gives to the Court.

17) In Prem Singh & Ors. v. State of Haryana6, the Apex Court clearly held as under:-

(2007) 9 SCC 589 5 (2007) 10 SCC 455 6 (2009) 14 SCC 494 16 "It is now a well-settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India."

18) Similar such view came to be expressed by the Apex Court in Ranjit Singh & Ors v. State of Madhya Pradesh7 holding that, the said legal maxim is not applicable in India and the court has to assess to what extent the deposition of a witness can be relied upon. It was further held that, the court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded.

19) From the judgments referred to above, it is very clear that, the concept of 'false in one thing, is false in everything', has no application to criminal cases in India; the court has to assess the evidence and separate falsehood from truth. Merely, because some of the accused were acquitted does not by itself lead to an inference that the evidence against other accused should also be disbelieved? It all depends on facts and circumstances of each case.

Reg: Existence of faction in the village.

20) Before going into other aspects of the matter, it is to be noted that, there exists a faction in T.Gokulapadu village. Just 7 AIR 2011 SC 255 17 prior to the incident, the son of the deceased was elected as Sarpanch against one Moulali, who was supported by A1. Since then, the accused is said to have developed a grudge against the deceased. Apart from that, the defense documents, which are marked vide Ex.D7 to Ex.D9, Ex.D15 and Ex.D16, Ex.D21 to Ex.D28 show that witnesses herein were arrayed as accused in number of criminal cases initiated by the accused and vice versa. Further, it has come on record that the prosecution party was lead by one Narayana Reddy, who is none other than the brother of PW9, who scribed the FIR.

21) Further, PW4 was an accused along with Cherukuripati Narayana Reddy and his brother Pradeep Kumar Reddy in the kidnapping case of Nakkala Naganna; and his brother Golla Ramudu was also an accused along with Cherukuripati Narayana Reddy and Pradeep Kumar Reddy in the double murder case of Kuruva Lakshmanan and Kuruva Chinna Beesanna of Cherukulapadu, who belongs to the party of the accused. Similarly, PW1 in his own evidence admits that, he along with PW6 and his younger brother Telugu Venkateswarlu and two others are accused in Crime No. 310/2008 of IV Town P.S., Kurnool. He further admits that, he along with PW3, PW5, PW8 and others were accused in C.C. No. 319 of 2009 on the file of J.F.C.M., Dhone, for the offences punishable under Sections 323, 324, 326 & 327 IPC.

22) PW5 who was examined as an injured eye witness to the incident admits in his cross-examination that, he was an accused in a murder case of one Boya Tirupalu s/o. Yerranna. He further admits that, A1, A5, A9, A10 and A11 are close relatives of deceased Tirupalu and other accused in this case are also relatives of Tirupalu. He further admits that, about five cases were filed by the accused against him and his brother Sreenivasa Reddy, PW1, PW3 and LW9. His father Narayana Reddy was an accused along with BoyaKoppala Yellapapa for killing T. Linga Reddy, which was of-course a very old incident. Further, Ex.D21 is a copy of the report given by him to the police, while Ex.D22 is the charge-sheet filed with reference to Ex.D21, and Ex.D23 is the evidence given by him before the J.F.C.M., Dhone with reference to Ex.D21.

23) Similarly, PW6 who is also examined as an injured eye witness states in his cross-examination that, he does not know whether his son is also an accused along with PW1 in the case relating to IV Town Police Station.

24) Insofar as PW9, who is said to have scribed the report, it is clear that he was an accused along with PW4 and Narayana Reddy in kidnapping case of Nakkala Naganna; apart from being an accused in the double murder case along with Narayana Reddy.

25) From the evidence of these witnesses, coupled with defense documents referred to above, it is evident that, there was a faction in the said village between two groups since pretty long time and number of cases came to be registered against either party.

26) It is a common knowledge that in cases arising out of acute factions, as a rule, persons unconnected with either faction do not dare or care to come forward as witnesses lest they should incur the wrath of the other party. At the same time we are conscious of the fact that in such cases, especially in cases coming from the Districts of Rayalaseema, there is an incurable tendency in witnesses to rope in the innocent along with the guilty, not so much out of personal animosity but in the hope of furthering the interests of the faction. To guard against the danger of condemning innocent persons on perjured testimony, it is imperative that evidence should be scrutinised with more than ordinary care and, in particular, sweeping statements and wholesale implications should be received with the utmost caution. In Re: Poreddi Venkata Reddy And ... v Unknown8.

27) In Tara Singh And Others v The State Of Punjab9, the Hon'ble Apex Court observed that, 'in in cases arising out of 8 AIR 1961 AP 23, 1961 CriLJ 42 9 1991 supp (1) SCC 536 20 acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. The court observed that, these are all matters for appreciation and much depends on the facts and circumstances of each case. It was a case where there was an inordinate and unexplained delay in FIR reaching the Magistrate. But, the court believed the presence of the eye witness at the scene of offence as they consistently deposed about the presence and participation of the appellant in inflicting the injuries on the neck of the deceased with a kirpan. There are no material contradictions or omissions which in any manner throw a doubt on their veracity and their version corroborated with the medical evidence. However, by way of abundant caution, the finding of the high court in giving benefit of doubt to other three accused as the allegation against them were omnibus in nature was accepted.

28) Keeping in view the law laid down by the Apex Court with regard to the appreciation of evidence in dealing with the cases arising out faction, the background in which the incident is said to have occurred, we shall now examine the documentary as well as oral evidence adduced by the prosecution. It would be useful to refer to the FIR, inquest and the oral evidence of injured eye witnesses, medical officer and the evidence of the Investigation Officer.

I. Regarding FIR and Inquest

29) The FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any used, and also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which would be a creature of afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in to the introduction of a coloured version or exaggerated story. In order to ascertain whether the FIR was lodged at the time it was alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special 22 report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate.

30) The second external check, equally important, is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. Mehraj Singh vs State Of U.P10.

31) Keeping in view the observations made by the Apex Court in the judgments referred to above, it can safely said that, in a case arising out of acute faction and where there are disputes between the groups in the village, it has to be seen, whether the 10 1994 SCC (5) 188 23 prosecution has properly explained the two checks referred to above i.e., whether any proper explanation was given for the delay in the FIR reaching the court and, whether the report was lodged as mentioned therein.

32) The first information report was lodged by PW1, who was examined as eye witness, at 1.45 PM on 11.5.2008. The english translation of the FIR [as furnished by the Registry], is as under:-

Report of Telugu Mallesu S/o. Meeta Meedi Telugu Ranganna, T.Gokula padu village, Krishnagiri mandal to the esteemed Sub- Inspector of Police of Krishnagiri Police Station. Sir, My brother Telugu Venkateswarlu, contested on behalf of Congress party in the last president elections of our village and won on Pinjari Moulali who was supported by our village Bogam Boya people. Since then there are disputes between our family and Bogam Boya families. Today i.e., on 11.5.2008 afternoon at about 12.40 hours, I accompanied to my father Mittameedi Telugu Ranganna, aged 68 years to go to Veldurthy Sandy and boarded an auto bearing no. AP21-V-4407. Bogollu villagers Purshotham Reddy S/o. Narayna Reddy, Vadla Lakshmaiah S/o. Vadla Pedda Veeraiah, Ponnakanti Yella Reddy S/o. Ponnakanti Lingareddy and my brother Nagaraju, we all were boarded in the said auto. The said auto started from our village at about 12.50 hours, after crossing one kilometre stone, reached near Cheruvu Vanka bridge, Boya Bogam Pedda Maddilety, s/o. Yerra Ampanna, age 48 years, (2) Boya Bogam Chinna Maddileti, S/o.Yerra Ampanna, age 45 years, (3) Boya Bogam Peddaiah s/o. Bogam Busanna, age 38 years, (4) Boya Bogam Ramajaneyulu, s/o. Bogam Busanna, age 30 yers, (5) Boya Hanumana, s/o.Boya Gopal , age 30 years, (6) Boya Bogam Chinna Anumanthu, s/o. Chinna Nagulu, age 32 years, (7) Boya Bogam Chandra, S/o. 24 China Nagulu, age 28 years, (8) Boya Bogam Pedda Anumanthu, S/o. Chinna Nagulu, aged 30 years, (9) Boya Bogam Naganna, s/o. Bogam Chinna Maddilety, age 30 years, (10) Boya Bogam Lakshmanna s/o. Pedda Maddilety, age 21 years, (11) Boya Kondapuram Maddilety, s/o. Nayudu, age 25 years, (12)Boya Bogam Ramanjaneyulu, S/o. Busanna, age 26 years, all are of our village armed with daggers, and Anumanthu S/o. Chinna Nagulu age 32 years armed with hunting sickle out of dagger in another hand, came across the auto and got stopped. On seeing them, the auto Driver Harijana Ramudu ran away from there by leaving the auto. All of them came by seeing towards my father saying that "this fellow is doing over, along with him, his son Sarpanch Venkateswarlu were doing good works in our village, and there is no respect to our Bogam Boya people in the village. If kill this fellow, his son, and his supporters should fear and dragged my father from the auto, my father fell down on the ground. Boya Anumanthu stabbed with a dagger on my father's stomach. Immediately Boya Pedda Maddilety, Chinna Maddilety, Peddaiah, Ramanjaneyulu, Boya Chandra all were stabbed with their respective daggers on my father's stomach. Intestines of my father were come out. Pedda Annumanthu stabbed on left side ear of my father and caused blood injury. Due to not tolerate of that blows, my father was fallen prone position. Then Chinna Anumanthu hacked on the back side of head of my father with hunting sickle. The son-in-law of Pedda Maddilety tried to stab on my father's head, my father kept his right hand to defend, and my father sustained bleeding injury in between his index finger and thumb. Naganna in his hand's dagger, stabbed on the left side forehead of my father. My father sustained bleeding injury. Ramanjaneyulu armed with dagger in his hand and stabbed on the left side forehead of my father and caused another big wound. My father died due to that blows. At the time of incident, I along with Bogolu Purushotham Reddy, Vadla Lakshmaiah, Yella Reddy and Nagaraju who were in the auto witnessed and also Boya Maddilety s/o. Maddilety age 48 years and one Balija Anand s/o. Shankaraiha, age 35 years who were cutting the firewood in the Cheruvu Vanka and a person who was coming from Veldurthy side on a motorcycle were witnessed the incident. After that they all ran away towards Togarchedu by raising cries 25 that they killed Ranganna. While I am going to Krishnagiri Police Station to give complaint, Thogarchedu V.R.O. Viswanathareddy was coming on the way, I called him and went to Krishnagiri Police Station and gave a report. Hence, I request to take suitable action against above 12 accused.

Yours faithfully, Sd/- Mallesh Received on 11/05/2008 at 13.45 hours.

As per the contents of the complaint, I registered a case in Cr. No.37/2008 u/s. 147, 148, 302 r/w. 149 IPC of Krishnagiri P.S., and issued express FIR and took up investigation.

Sd/-

S.I. of Police, Krishnagiri P.S. 11.05.2008.

33) (A) The circumstances as to why the FIR has to be viewed with suspicion. Before looking into the contents of the FIR, it would be useful to place on record the attestation made by the Magistrate on the FIR [Ex.P16], which is as under:-

(i) The material on record shows that, FIR was lodged by PW1 at 1.45 PM at Krishnagiri Police Station before PW18, the Sub-

Inspector of Police, basing on which he registered a case in Crime No. 37/2008 of Krishnagiri Police Station. He immediately dispatched copies of the FIR to all concerned and original copy 26 of the FIR was sent to the Magistrate, as the crime was registered for a grave offence. Ex.P16 is the FIR. According to PW18, the distance between the Krishnagiri Police Station and the place where the court and the residence of the Magistrate is located is about 25 kilometers, and the distance between the scene of offence to the village is 01 kilometer and from the village i.e., place of residence of PW1, PW3 and others to the Krishnagiri Police Station is about 20 kilometers.

(ii) The FIR was said to have been received by the Magistrate through a Police Constable. But, strangely, the number or the name of the Constable who brought the FIR was not recorded on the endorsement. Further, a reading of the endorsement made by the Magistrate on the FIR shows number of over-writings and corrections. It is very clear to a naked eye that, initially an endorsement was made showing as if the FIR was received at 11.00 AM on 12.05.2008 i.e., on the next day. After making such endorsement, the learned Magistrate put his initial and the date underneath the initial was mentioned as "12.05.2008". Subsequently, over-writings came to be made altering the time from 11.00 AM to 11.00 PM and the date from 12.05.2008 to 11.05.2008. However, the date below the initial of the Magistrate was not changed. It remained as "12.05.2008". If really the FIR was received at 11.00 PM on 11.05.2008, the question of mentioning the date below the initial of the Magistrate as 27 12.05.2008 would not arise. Further, when alterations are made with regard to the date and time of receipt of the FIR, a duty is cast upon the prosecution to explain the same, either by summoning the Magistrate who made the endorsement or by examining the concerned clerk of the court, to show as to how and what circumstance the alterations came to be made. No effort was made by the prosecution to explain the same.

(iii) The learned Public Prosecutor tried to get over the situation by saying that the same may not be fatal to the case, as suggestions were not put to the investigation officer and no dispute was raised about the same before the trial court. He referred to para 20 of the judgment of the Supreme Court in Anjan Dasgupta v. State of West Bengal & Ors11 in support of his plea, which reads as under:-

"Para 20. The I.O. after receipt of the information of an offence by R.T. message had arrived at the scene on 17.40 hours, which clearly proves the prompt commencement of the investigation. FIR was dispatched on 22nd June, 2000 which has also been accepted by trial court. When no questions were put to I.O. in his cross-examination regarding the delay in dispatch, at the time of hearing, the accused cannot make capital of the said delay in forwarding the FIR. This Court in Rabindra Mahto and Another v. State of Jharkhand 2006 (10) SCC 432 has held that in every case from the mere delay in sending the FIR to the Magistrate, the 11 (2017) 11 SCC 222 28 Court would not conclude that the FIR has been recorded much later in time than shown. It is only extraordinary and unexplained delay, which may raise doubts regarding the authenticity of the FIR".

(iv) From the judgment, referred to above, it is clear that the issue before the Hon'ble court was with regard to delay in dispatch of FIR. Dealing with the same, the court held that, in the facts of the case, when no suggestions were given to the I.O. in his cross-examination regarding the delay in dispatch, the accused would not make capital of the said delay.

(v) The Public Prosecutor also placed reliance on Rabindra Mahto and Another v. State of Jharkhand12 to show that, mere delay in sending the FIR to the Magistrate does not lead to an interference that FIR has been recorded much later in time than shown, unless the delay is extraordinary and unexplained.

(vi) But, here is a case, where the issue is not with regard to delay in dispatch of the FIR, but, relates to alterations on the endorsement made by the Magistrate, with regard to date and time of the receipt of the FIR. As observed by us earlier, the prosecution failed to explain the over-writings on the said endorsement. Further, a reading of the evidence of the investigation officer would show that, suggestions were given to 12 2006 (10) SCC 432 29 the investigation officer with regard to time as to when the FIR reached the court.

(vii) This being a faction case and having regard to the embellishments/over-writings being made to the endorsement made by the Magistrate, with regard to the time and date of receipt of FIR, a doubt arises as to whether really the FIR was lodged at the time mentioned in the document i.e. 1.45 PM. If really, it was lodged at 1.45 PM, it would not have taken such a long time to reach the Magistrate court. Even assuming for the sake of argument that, it reached the Magistrate on 11.00 PM on 11th itself, still there is abnormal delay, as the version of the investigation officer is to the effect that the FIR was dispatched to the concerned court immediately. When the distance between the police station and Dhone, where the court is located is only 25 kilometres and all the facilities to go there are available, definitely this delay, in our view must have given the prosecution time to prepare the report after due confabulations leading to anti-timing it. However, it is to be remembered that, the original endorsement on the FIR shows the receipt of FIR at 11.00 AM on 12.05.2008.

(viii) As held by the Hon'ble Apex Court in Mehraj Singh vs State Of U.P [supra], if the report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, more so, in the 30 absence of any explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate.

(ix) In Marudanal Augusti Vs. State of Kerala13, the Hon'ble Supreme Court has emphasized the importance of forwarding the FIR to the Magistrate and held, at para-24, as under:

"The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with the earliest dispatch which intention is implicit with the use of the word forthwith occurring in Section 157 CrPC, which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation".

(x) The decision in Marudanal Augusti (supra) was referred to and relied upon by the Supreme Court in Rajeevan Vs. State of Kerala14.

34) (B) One other circumstance in support of the above finding, namely, that the FIR was anti-timed and prepared at the behest of rival group, is the inquest report.

(1980) 4 SCC 425 14 AIR 2003 SC 1813 31

35) It is no doubt true that, the inquest report cannot be a substantive piece of evidence, and that is often used to know the cause of death, but, in cases of this nature, more particularly, in faction cases, it can be used to test the veracity of the incident and the evidence of interested witnesses. The Hon'ble Supreme Court in Kuldip Singh vs. State of Punjab15 held that as under, "...... No doubt, the contents of the inquest report cannot be treated as evidence but they can be looked into to test the veracity of incident".

36) A perusal of the inquest report would show, as if the proceedings commenced on 11.05.2008 at 3.00 PM and completed by 5.15 PM. PW14 who was examined as an inquest panch deposed that, inquest proceeding commenced at about 3.15 PM and were completed by 5.30 to 6.00 PM. It is his version that, police examined PW1 to PW3 and one Ponnakal Yella Reddy at the time of inquest, and it was opined that, the deceased died due to injuries on head. The inquest report and the evidence of PW14 show that, only PW1 to PW3 alone were examined as eye witness to the incident. Column XV of the inquest report, which contains the gist of the statement of the eye witnesses, does not anywhere indicate about the presence or attack on PW5, PW6 and PW7, who are now projected as injured eye witnesses to the incident. It only speaks about PW1 and 15 1992 CriLJ 3592 32 PW3 trying to interfere when all the 12 accused attacked the deceased with daggers and deadly weapons. It also shows that, on the fateful day, at 12.50 PM, it was only the deceased, PW1 and PW2 boarded the auto to go to Veldurthy. In Column 1(B) of the inquest report, PW1 to PW3 and one Yella Reddy [not examined] were shown as eye witnesses to the incident. It is to be noted here that, according to prosecution, the FIR was lodged at 1.45 PM on 11.05.2008, in which the presence of PW1 to PW3, PW5, PW6 and PW7 was mentioned [but silent on the attack of PW5 & PW6]. If really the FIR was given at 1.45 PM as claimed by PW1 and the inquest later at 3.15 P.M., he could not have missed mentioning the presence of PW5 to PW7 at the time of inquest. [As stated earlier FIR referred to presence of PW5 to PW7]. Therefore, from the above, it is clear that, till 5.30 or 6.00 PM, nobody was aware about the presence of PW5, PW6 and PW7 at the scene and they sustaining injuries in the hands of the accused. It is not as if PW1 and PW3 [PW2 hostile] were not aware or have not seen the attack on PW5 and PW6 by the accused. That being so, failure to mention the presence and attack on PW5 and PW6 by the accused assume lot of significance and the entire case has to be viewed with some suspicion.

37) Further, the record shows that, Ex.P9 inquest report was received by the court at Dhone through PC-1185 at 5.30 A.M., on 12.05.2008 i.e. much prior to the FIR being received by the Magistrate, as the original endorsement on the FIR was to the effect that, it was received by the Magistrate at 11.00 A.M., on 12.05.2008. Probably, for this reason, corrections came to be made on the endorsement in Ex.P16, to suit the prosecution case. These two circumstances show how the case was sought to be improved from stage-to-stage.

(C) The third circumstance which throws any amount of doubt with regard to the report given by PW1, is the admissions made by the investigation officer [PW19] in his evidence, wherein, he admitted that, PW5, PW6, PW7, PW8 and PW11 stated before him that, PW1 has falsely implicated A2, A3, A4, A7, A8 and A12 in this case. That being the position, a doubt arises whether the version of PW1 and the version of his brother [PW3] with regard to participation of 12 accused in the crime can be accepted. We will discuss the evidence of PW5, PW6, PW7 and others a little later.

38) When the very initiation of a prosecution case and the contents there are tainted, making it a doubtful document, it stands established that there is every possibility of FIR being brought into existence after due deliberation, anti-timing it to suit their case. In the absence of any explanation by the 34 prosecution to the over-writings, coupled with the version of PW19, the argument of the learned counsel for the appellant that the incident happened in a different circumstance and at a different time and that the FIR came to be lodged anti-timing it after due deliberations and confabulations cannot be brushed aside.

II.       Oral Evidence


39)       Coming to the oral evidence adduced by the prosecution,

we intend to categorize the witnesses into three [03] categories. PW1 and PW3 [sons of the deceased] as eye witnesses to the incident; PW5 and PW6 as injured eye witnesses to the incident; and PW4, PW8 and PW13 being the other set of witnesses. As held earlier, all the witnesses are interested and connected with the group of the prosecution party, apart from involving in criminal cases.

40) In Hari Obula Reddy And Ors. vs The State Of Andhra Pradesh16, the Hon'ble Supreme Court observed that, 'interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of 16 (1981) 3 SCC 675 35 interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case'. 36

41) Keeping the principle laid down, we proceed to analyze the evidence of PW1 to PW3.

Analysis of the evidence of PW1 to PW3

42) PW1 in his evidence-in-chief deposed about his brother winning the election against one Moulali supported by A1 and also about the incident, which took place on the fateful day, i.e., 11.05.2008, on which day, he along with his father, PW5, one Yella Reddy and Pedda Laxmaiah boarded the auto of PW11 to go to Veldurthy. At about 1.00 PM, A6 came across the auto, armed with hunting sickle in his left hand and dagger in his right hand, followed by A1 to A5 and A7 to A12. A1 and A5 are said to have dragged the deceased out of the auto holding his shirt [not mentioned in the FIR or inquest]. Seeing the same, the auto driver escaped leaving the auto. Thereafter, A6 stabbed the deceased with dagger over the stomach. A1 also dragged the deceased and stabbed on the stomach, saying that the deceased was responsible for getting good name to his people and bad name to them in the village. He instigated other accused to attack the deceased. Then, A2, A3, A4, A7 and A10 stabbed the deceased with daggers in the stomach [role of A10 not mentioned in FIR and inquest]. A8 [acquitted] attempted to stab the deceased with dagger over his face, but, caused injury on the left side of the cheek extending towards back touching the ear. Deceased struggled and fell down facing the ground. Later, A6 37 took a hunting sickle into his right hand and hacked the deceased on the back side of the neck, while A11 made an attempt to stab the deceased. When he raised his hand, the blow landed on his hand causing injury to the thumb and index finger. When the deceased turned facing up, A9 and A12 stabbed the deceased with a dagger on his face [A12 acquitted]. The incident is said to have been witnessed by standing on the other side of the auto.

43) PW6 who was present in the nearby the fields cutting trees and PW7 who was coming on the motorcycle, rushed to the spot and raised cries. PW3 and PW5 went towards the deceased. At that time, A1 and others came towards them threatening with dire consequences. A5 is said to have beat PW5 with his dagger causing a cut injury over left neck and also on the right hand of PW5. Being afraid of the situation, PW1 and all others ran running towards village. On the way, PW1 and PW3 fell down and sustained minor injuries on the body. From the village, PW1 took the motorcycle of his brother and proceeded to the police station to give a report. On the way, he picked up V.R.O., [PW9] who scribed the report to the dictation of PW1. Thereafter, PW1 lodged the same before the police at 1.45 PM.

44) In the cross-examination, it has been elicited that, A1 stabbed the deceased with his left hand, as his right hand was unwell. It was further elicited that, A9 and A12 stabbed the 38 deceased on the same place and the injury caused by A12 is severe [A12 acquitted]. To a suggestion that, it was mentioned in Ex.P1 that at the time of occurrence, himself, PW5 and another person were sitting in the auto and saw the incident was denied by him. He adds that, he stated everything in tension and he does not know about the same. He further denies the suggestion that he failed to mention in Ex.P1 that himself, PW3, PW5 went near the deceased and were threatened by A1 and other accused by showing daggers and A5 causing injury on left neck. It was further elicited that, PW5 did not sustain bleeding injury. He also denied the suggestion that he failed to mention in Ex.P1 that being afraid of the situation, all of them ran towards the village and in the process, fell down on the ground sustaining abrasions. It was also elicited that, none of them kept a watch over the body of the deceased, who is none other than his father. He admits that, himself and PW3 went to their house, while PW5 and others got disbursed. He also admits that, he did not inform about the incident in the village. The cross-examination also shows existence of disputes in the village, wherein, a case was registered against himself [PW1], son of PW6, his younger brother and two others in Crime No. 310/2018 of IV town P.S., Kurnool. He also admits that, along with him PW3, PW5, one Bogolu Sreenivasa Reddy, who is brother of PW5, PW8 were acquitted in C.C. No. 319, 323, 324, 326, 327/2009 on the file of J.M.F.C., Dhone.

45) It was further elicited from his cross-examination that, neither he nor PW3 nor PW5 were sent to the hospital on the same day. It would be useful to extract the relevant portion, which reads as under:-

"I or Nagaraju and Purushotham Reddy were not sent to the Hospital on the same day".

46) In-fact, it was suggested to PW1 that, at the instance of one Narayana Reddy, he is speaking false and that they themselves caused injury for the purpose of planting as witnesses to the incident and that some unknown persons caused death of the deceased even prior to 12.00 noon. After coming to know the death of the deceased, this case has been foisted in consultation with Narayana Reddy and Viswanatha Reddy. In-fact, it was also admitted by PW1 that, he stated the names of the accused without mentioning the surnames and other details to Viswanatha Reddy [PW9] and Viswanatha Reddy added the surnames, father names and ages of the accused.

47) At this stage, it would be useful to refer to the evidence of PW9, who in his evidence deposed that, on 11.05.2008, he was informed by PW1 over telephone at about 1.20 PM that, his father was killed. He went to Krishnagiri police station and scribed the report given to the police under Ex.P1. However, this witness was treated hostile, when he deposed about arrest and recovery made from the accused. In the cross-examination he 40 admits that, when he received phone call from PW1, he was in Thogarachedu village and from there he went to Krishnagiri police station. He also admits that, except stating that his father was murdered, PW1 did not give any particulars to him on telephone. He also admits that, Siva Reddy is the father of Cherukulapati Narayana Reddy and he is related to Narayna Reddy.

48) This version of PW9 runs contra to the evidence of PW1 with regard to the meeting PW9 while he was on his way to police station and he requesting him to scribe the report.

49) From the evidence of PW1, what emerges out is, that the deceased along with others boarded an auto at 12.45 PM on 11.05.2008 and after travelling a distance of 01 kilometre, the incident in question took place. PW1 and others escaped from the accused and returned to the village. Then, PW1 took the motorcycle of his brother, got prepared a report, travelled a distance of nearly 20 kilometres to the police station and lodged a report by 1.45 PM, which means that, within one hour of the incident, PW1 came running to the village, took the bike of his brother, got prepared a report through PW9 and after travelling a distance of more than 25 kilometres lodged the report. Further, his own evidence shows that, though he did not furnish the surnames and father names of the accused, PW9 who is the brother of Narayana Reddy and close supporter of prosecution 41 party added the surnames and father names, while preparing the FIR. It is not the case of the prosecution that, there was no other person in the village with the same names as that of the accused. On the other hand, out of 12 accused, two of them have same names, which clearly indicate that these names are common in the village. Further, PW1 did not refer to the attack on PW6, even while giving evidence in the court and he attributed specific overt acts to some of the accused who were said to be falsely implicated even as per the evidence of prosecution case, which came to be elicited through the evidence of the I.O.

50) PW2 who was examined as eye witness to the incident did not support prosecution case and he was treated hostile by the prosecution.

51) PW3 is the brother of PW1. His evidence toes in line with the evidence of PW1 with regard to the attack by all the 12 accused and also attack on PW5 by A5. One fact which requires to be noted here is that, neither PW1 nor PW3 speak about the attack on PW6. They only speak about the attack on PW5 by A5, which we will discuss while considering the evidence of PW5. His evidence is a parrot like version as that of PW1.

52) PW3 was also cross-examined at length, wherein he admits that, A1 is unwell with his right hand and that seven persons stabbed the deceased on stomach with daggers. He admits that, 42 he did not state before the police about A8 stabbing on the left hand with dagger. According to him, after the attack, himself along with PW1 and PW5 intervened to rescue the deceased. He further admits that, PW5 did not sustain any bleeding injury, though, he was attacked with dagger and that he suffered only a scratch injury on the left side of the neck and right hand. It would be useful to extract the relevant portion, which reads as under:-

"Purushotham Reddy [PW5] did not sustain any bleeding injuries though he was attacked with dagger".

53) He further admits that the accused did not attack him and PW1 while they were in the auto and while getting down from the auto and running towards their village and also after the fall. It is his case that, they reached the village within 15 to 20 minutes after the attack [contrary to what PW1 stated]. If this is accepted, the FIR could not have been lodged by 1.45 P.M. The relevant portion of which is as under:-

"We reached our village after the incident within 15 to 20 minutes".

54) PW3 further deposed that, after PW1 proceeded to the police station, he came back to the scene of offence along with three others by 2.30 PM. By that time, nobody was present near the body of the deceased. It is his case that, PW1 also reached 43 the scene of offence at 2.40 PM after giving report. He in his evidence deposed about the cases between both the groups. However, denies the suggestion that, some unknown persons caused death of the deceased even before 12.00 noon and after coming to know about the same, they in consultation with Narayana Reddy and Viswanatha Reddy foisted the false case against the accused. His evidence further shows that, his father was an accused in the murder case of one Ramana Reddy and he does not know about other cases and particulars. According to him, after the election in the year 2006, enmity developed between their family and A1's family.

55) From the evidence of PW3, it is clear that he claims to have been present at the scene and witnessed the incident along with PW1. When the version of other prosecution witnesses, coupled with that of the investigation officer is to the effect that, PW1 falsely implicated six of the accused, we feel that, it may not be safe to rely on the evidence of PW3, who is none other than the son of deceased and a partisan witness, having enmity with the group of the accused. His version, as stated by us earlier, is parrot like to that of PW1, whose evidence as stated by us, has to be viewed with suspicion, for many a reasons. It is not a case where the grain has to be separated from the chaff, but the entire case is clouded with suspicion.

56) One circumstance which requires consideration at this stage is that, if really PW1 and PW3 were present at the scene and when the accused have enmity against them, definitely, the accused would not have left these two persons without even making an attempt to attack them.

57) Yet another circumstance to doubt their veracity is, PW1 and PW3 deposed about seeing the incident by standing behind the auto, which they boarded at their village. The version of PW1 and PW3 is to the effect that, the auto driver ran away from the scene after leaving the auto. PW11 is the auto driver, who was examined to speak about the incident, but, he did not support the prosecution case. But, the evidence of PW1 and PW3 is to the effect that, they witnessed the incident by standing behind the auto. But, this circumstance is falsified through Ex.D5 which is the portion of earlier statement of PW5; Ex.D12 a portion of the earlier statement made before the police by PW6, wherein, it has been stated that the auto driver left the scene along with the auto. It would be useful to extract the relevant portions, which are as under:-

"Ex.D5 - Auto driver Ramudu ran away along with auto towards Veldurtjhy side".

"Ex.D12 - Auto driver Ramudu ran away along with auto".

58) These omission came to be elicited through PW18 the investigation officer. Therefore, the version of PW1 and PW3 that they have witnessed the attack on their father by standing on the other side of the auto is false. Even the scene of offence panchanama, which is placed on record as Ex.P17 does not show the presence of the auto. Therefore, this circumstance also creates a doubt as to whether really PW1 and PW3 and other witnesses were present at the scene and witnessed the incident from behind the auto, as claimed by them.

59) Evidence of PW5 and PW6: Before dealing with the evidence of PW5 and PW6, it would be useful to refer to the law relating to the conduct of the witness.

60) In Rana Pratap Vs. State of Harayana17, the Supreme Court at paragraph 6 held that:

"Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. Therefore, in the said case, the court found fault with the High Court in rejecting the evidence on the ground that he did not react in a particular manner". 17

AIR 1983 SC 680 46

61) Lahu Kamalakar Patil Vs. State of Maharashtra18, was a case, where the witness was frightened and hid himself behind the pipes throughout the night and left for home the next morning. But his conduct in not informing his wife or any family member, leaving for Pune and not telling anyone, defies normal human behaviour. He has also not stated anywhere that he was so scared that even after he reached home, he did not go to the police station which was hardly at any distance from his house. In paragraph 26 of the judgment, the court held as under:-

"From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing of variations, then his testimony becomes questionable and is likely to be discarded". 18

2013(1)ALD(Cri)841 47

62) In Gopal Singh v. State of Madhya Pradesh19, the Hon'ble Supreme Court did not agree with the view of the High Court in accepting the testimony of an eye witness as his conduct was unnatural. In paragraph 10 of the judgment, it was observed as under:-

"para 10 - We also find that the High Court has accepted the statement of Feran Singh PW5 as the eye witness of the incident ignoring the fact that his behaviour was unnatural as he claimed to have rushed to the village but had still not conveyed the information about the incident to his parents and others present there and had chosen to disappear for a couple of hours on the specious and unacceptable plea that he feared for his own safety".

63) From the judgments of the Hon'ble Apex Court, it is very clear that, if the conduct of the witnesses is unnatural, not in accord with acceptable human behaviour, his testimony becomes questionable and is likely to be discarded.

64) Keeping these circumstances in the background, we shall now proceed to appreciate the evidence of PW5 and PW6.

65) Coming to the evidence of PW5 and PW6, it is already observed by us that, both of them belong to the group of one Narayana Reddy and were involved in criminal cases. In-fact, PW5 admits his involvement in the murder case of one Boya Tirupalu. Similarly, the son of PW6 is said to have been involved 19 (2010)6 SCC 407 48 in one criminal case. Be that as it may, it is the version of PW5 that, on 11.05.2008 at 12.45 noon, himself, PW2 and one Yella Reddy were at the auto stand to go to Veldurthy. At that time, the deceased, PW1 and PW3 came to the auto stand to go to Veldurthy. All of them boarded the auto of PW11 to go to sandy at Veldurthy. When they reached the culvert, all the accused armed with daggers came on to the road. A1 and A5 dragged the deceased from the auto holding his shirt collar and pulled him down. It is his version that, the auto driver left the auto and ran towards Veldurthy [different version in earlier statement]. On the instigation of A1 [the words of instigation vary from witness-to- witness], A6 stabbed the deceased with a dagger on the stomach and A1 also stabbed him on the stomach. Thereafter, A2, A3, A4, A7 and A10 stabbed the deceased with daggers in the stomach. When the deceased fell down, A8 stabbed the deceased with dagger on his left ear causing bleeding injury. Due to the above said injuries, the deceased turned his face towards the sky, then, A6 hacked the deceased with the hunting sickle on the back side of the head, causing bleeding injury. Thereafter, A11 stabbed the deceased with a dagger, but, the same was warded off by the deceased, which lead to an injury between the thumb and index finger. A9 and A12 stabbed the deceased on the forehead causing bleeding injuries. It is his version that, himself, PW1 and PW3 tried to rescue the deceased, then, A1 and A5 threatened that they will also kill if they interfere. A5 is 49 said to have attacked PW5 with a dagger causing an injury on the left side of neck. When he proceeded further, A5 stabbed on his right hand. Being afraid of the accused, all of them ran towards the village. PW5 was also subjected to lengthy cross- examination.

66) In the cross-examination, PW5 admits that, he cannot say how many times A1 and A6 stabbed the deceased so also, A2, A3, A4, A7 and A10. He denies the suggestion that, he did not state before the police that, A2, A3, A4, A7, A8, A10 and A12 were present and stabbed the deceased, and that A8 stabbed the deceased on the left ear only once. He further admits that, he did not state before the police that A5 stabbed on the left ear of the deceased, which is marked as Ex.D3. According to him, A6 hacked the deceased on the back side of his head only once, while A9 and A12 stabbed on the forehead of the deceased at one place. He admits that, he did not state before the police that, A10 stabbed the deceased on his forehead as contained in Ex.D4. He admits that, he witnessed the incident by standing on the other side of the auto. He admits that, he did not sustain bleeding injuries when he was stabbed by the accused and did not get any blood stained over his clothes. However, to a suggestion that, he did not state before the police that he suffered bleeding injuries was denied as contained in Ex.D6. He admits that, they reached the village by 1.20 PM and thereafter, 50 he went to his house, which is about 30 houses away from the houses of deceased. He admits that, while going to his house, he did not inform to Talary or Village Secretary. He also admits that, he did not approach RMP doctor in the village or Veldurthy for taking treatment to the injuries sustained. He further admits that, being afraid of the accused, he could not go out of the house and that he was examined on the next day by the police near the temple. Till he was examined by the police, he did not reveal the incident to anybody except the inmates of his house. He states that, he did not state before the police that, he had knowledge that he witnessed PW2, PW3 and Yella Reddy stating against A1 to A12, which is marked as Ex.D8. He further states that, he did not state before the police that because of political rivalry, A2, A3, A4, A7, A8 and A12 were falsely implicated in this case, as contained in Ex.D9.

67) PW19, the investigation officer, in his evidence deposed that, PW5 did not state before him that A1 to A12 emerged from Vanka and came on road to the place of occurrence. He further admits that, PW5 did not state before him the presence of A2, A3, A4, A7 and A10 and their participation; A8 stabbing on the left ear, and A12 on the forehead of the deceased. He states that, PW5 stated to him as in Ex.D3 to Ex.D9.

68) From the evidence of this witnesses, two things are very clear. Though, he says that PW1 has falsely implicated A2, A3, A4, A7, A8 and A12, but, still, he in his evidence deposed about their presence and participation. When, A2 to A4, A7,A8 & A12 were not present at the scene, there was no necessity for him to depose in court about their presence and participation with regard to attack on the deceased. Further, he being an interested witness, would not have kept quiet after reaching the village. His own evidence show that, he reached the village at 1.20 P.M., went home and stayed in the house till the arrival of the police next day. Being a member of a faction in the village and an accused in murder case of one Boya Tirupalu, he would not have kept quiet in his house without informing anybody about the incident. His conduct, in our view, appears to be unnatural, more so, when none of them threatened him with dire consequences, if he informs others about the incident. Being an injured person and a member of rival faction, he would have taken every opportunity to inform about the incident. It appears that, he was made to speak in line with PW1 at the behest of their leader Narayana Reddy, which is clear, when he deposed about the six accused knowing fully well they were not present at the scene.

69) At this stage, the learned Public Prosecutor would contend that, this witness being injured witness stands on a higher pedestrian than the ordinary witness. But, as observed by us earlier, in the earlier documents, namely, inquest, which was said to have been prepared between 3.15 PM and 5.30 to 6.00P.M., there was no reference to the presence of PW5 at the scene and in the FIR given, no attack on him was mentioned. Further, he never got himself treated for the injuries sustained, when his version is to the effect that, the accused have caused bleeding injury.

70) On the other hand, the evidence of PW17 the doctor who treated PW5 would show that, there was a superficial cut injury over the left side of the neck; and there was swelling on extensor aspect of right forearm along with a bruise. If really PW5 was attacked with a dagger causing bleeding injury, as deposed by him, definitely, the injury could have been more severe than what has been noticed by the doctor. Definitely, these injuries must have been sustained by PW5 in a different circumstance, as the doctor in his report failed to mention the age of the injuries. There was no bleeding. Insofar as second injury is concerned, the doctor in his report stated that, the said injury is possible when a person tries to avert the blow of a dagger. But, that is not the version of PW5. According to him, he was stabbed by A5 on his right hand.

71) Having regard to the circumstances stated earlier, it appears that, the injuries on PW5 could be either self-implicated or could have been caused under different circumstance, as the [1] age of the injuries are not mentioned by the doctor; [2]injuries are superficial in nature, and [3] there is no stab injury, though, PW5 claim that he was stabbed on the right hand. It is to be noted here that, even PW5 failed to depose about injury being caused to PW6. Apart from all these things, as observed by us earlier, when he himself stated before the police that, PW1 has falsely implicated six accused, he again goes on to depose about the presence and participation of those six accused, which itself establishes that he is not a reliable witness and the he is not speaking the truth.

72) Coming to the evidence of PW6. He toes in line, in all respects, with the evidence of PW1, PW3 and PW5. In the cross- examination, PW6 admits that, he did not state before the police about A5 stabbing the deceased on his left ear as contained in Ex.D10. He did not state before the police about A10 stabbing the deceased on his forehead as contained in Ex.D11, and also about the auto driver leaving the place by leaving the auto. However, he denies to have stated that the auto driver left the place by taking the auto as in Ex.D12. According to him, at about 3.00 or 4.00 PM, he reached his house and did not approach any doctor for treatment. He denies to have stated 54 before the police that due to political rivalry in the village, A2, A3, A4, A7 A8 and A12 are falsely implicated as contained in Ex.D16. His evidence also shows that, he along with PW5 went to Dhone hospital on the next day for examination. His evidence also shows that, he did not inform anybody about the incident till next day. His evidence also has to be viewed with suspicion, for the reason that, though, before the investigating agency he stated that PW1 has falsely implicated six accused vide Ex.D16, but, he attributes specific role to them while giving evidence in court.

73) It is also to be noted here that, neither PW1 nor PW3 nor PW5 deposed about injury being caused to PW6 by the accused. Further, it is the version of all the witnesses that, all of them together ran to the village. That being so, when PW1, PW3 and PW5 could reach the village within 15 to 20 minutes after the incident, it is strange as to how PW6 who ran along with others reached the very same village at 3.00 or 4.00 P.M., in the evening. In-fact, the evidence of PW3 shows that, he did not state in his earlier statement about the presence of PW6 near the scene of offence. Further, the conduct of PW6, in our view, also appears to be unnatural, for the reason that, he being closely associated with the prosecution party failed to report about the incident to others in the village. It is his version that, he reached his house at 3.00 or 4.00 P.M., and did not make 55 any effort to get himself treated for the injury sustained by him. Though, PW6 in his earlier statement before the police speaks about false implication of A2, A3, A4, A7, A8 and A12, strangely, while giving evidence in court, again speaks about their presence and participation in the commission of offence, which is again an indicative of the fact that he his not speaking the truth.

74) PW17 the doctor who treated PW6 finds a small superficial lacerated injury on the bridge of nose measuring 0.05 x 0.05 centimetres in size, which is simple in nature. Definitely, this injury could not have been of this nature, having regard to the manner in which he was attacked. Though, PW1, PW3 and PW5 do not speak about any injury being caused to PW6 by the accused, PW6 introduces a version while giving evidence in the court, which is to the effect that, A1 caused an injury with a dagger on his nose, saying "ee nakoduku ikkade unnadu podachandira". Then, he claims to have gone to his village. If really PW6 was attacked with dagger by A1, on his nose, the injury could have been a grievous one but not a small superficial lacerated injury on the bridge of the nose. The doctor who issued wound certificate under Ex.P15, does not say the age of the injury, except, saying that, it is a simple injury. Apart from that, as held by us earlier, the name of PW6 never figured as being present at the scene in the inquest report, and there is no 56 reference to he being attacked by the accused in any of the earliest document, leave alone the evidence of PW1, PW3 and PW5. On the other hand, his earliest version before the police, which came to be marked through the investigation officer as Ex.D14, was to the effect that, A1 caused bleeding injury with a dagger on his noise, which is falsified on medical evidence. Having regard to his conduct after the incident, coupled with the findings referred to the above, we hold that PW5 and PW6 were not present at the scene of offence and have been setup by the prosecution as injured witnesses to the incident.

75) Coming to the next set of witnesses, namely, PW4, PW7, PW8, PW10, PW11 and PW13, it is to be noted that, out of these witnesses, PW7, PW10 and PW11 did not support prosecution and were treated hostile by the prosecution.

76) PW4 in his evidence deposed that, on the date of incident at 11.15 AM, A1, A5 and A6 engaged his auto to go to Gokulapadu on a fare of Rs.115/- and that the accused were carrying liquor bottles and plastic glasses. It is his version that, during the journey, he heard the conversion of A1, A5 and A6 against the deceased, stating that the deceased is showing highhandedness in the village and that his end has to be seen today. According to him, he dropped them at venka bridge at their request and came back to Veldurthy.

77) In the cross-examination, he admits that, he informed the CI of Police, for the first time, the conversation which he heard between A1, A5 and A6. He further admits that, he did not state before the police that he came to know about the incident at 4.00 PM when he was at bus stand to the effect that A1, A5 and A6 along with others caused the death of the deceased. But, however, a reading of the cross-examination of this witness shows that he is also an interested witness. He was involved in a case of outraging the modesty of a woman and thereafter, he threatened her mother-in-law who tried to interfere. He further admits that, a case was lodged against him and others when he prevented K.E. Prabhajkar, M.L.A., of TDP party canvassing in the village. It was further elicited that, he was an accused along with one Narayana Reddy and his brother Pradeep Kumar Reddy [PW9] in the kidnapping case of Nakkala Naganna. In any event, he was not an eye witness to the incident, as he only speaks about the dropping the three accused near the vanka.

78) PW8 only speaks about A1 to A12 consuming alcohol underneath the culvert and he being threatened by them to leave the place. He also admits in his cross-examination that, A1 herein was an accused in the murder case of his father which ended in an acquittal. He admits that, after the death of the deceased, a case was lodged against him along with PW1, PW3, PW5 and others on an allegation of trespass into the houses of 58 the accused and causing damage to the property. This witness in his earlier statement before the police, vide Ex.D18, stated that PW1 falsely implicated six accused. He further admits that, till Tuesday morning he did not inform about the incident to anybody. Though, he is not an eye witness to the actual incident, but, he witnessing A1 to A12 underneath the culvert with sickle and daggers appears to be suspicious, for the reason that, his conduct in keeping quiet and not informing anybody till he was examined by the police appears to be quiet unnatural. In any event, nothing turns around his version as he never deposed about the incident proper.

79) PW13 was examined as an eye witness to the incident. He in his evidence deposed that, he knows PW1 to PW12 and A1 to A12 who were residents of his village. His version in-chief is on the same lines as that of the other witnesses, but, only difference is that, he claims to have witnessed the incident by standing behind the tree. In the cross-examination, it was elicited that, he was examined by the police 15 days after the incident and till such time, he never informed anybody about the incident. The same is as under:-

"I was examined by the police after 15 days of the incident. Till that time, I never informed the incident to anybody".

80) From the answers elicited above, we hold that, his conduct was unnatural. Being an eye witness to the incident and being the brother of PW8, who had enmity against A1, as A1 was an accused in the murder case of his father, he would not have kept quiet without informing the police or any village elder about the incident, for a period of 15 days. It is not his case that, he was either threatened by the accused not to inform others about the incident nor was his case that he was afraid of the accused. That being so, we feel that no credence can be given to this belated version, which came forward 15 days after the incident. For all the reasons aforesaid mentioned, we hold that the evidence of PW1, PW3, PW5, PW6 and PW13 as eye witnesses to the incident cannot be believed.

81) One another fact, which also assumes lot of importance, is that, PW1, PW3 and other witnesses have categorically deposed that A1 pulled the deceased and beat him with dagger, but as admitted by PW1 and PW3, A1 has an invalid right hand and it is nobody's case that, he had dragged the deceased with left hand while holding a dagger. It is difficult to believe the act of A1 in dragging the accused from the auto along with A5 by holding his shirt and then hacking him with a dagger on the stomach.

82) Further, it is the consistent version, right from FIR till the evidence of PW3 that, A6, A1 and A2 to A4, A6, A7 and A10 stabbed the deceased with daggers on the stomach, as a result 60 of which, the intestines came out with profuse bleeding. But, strangely, there were only two injuries in the abdomen region, as per the medical certificate, thereby, falsifying the oral evidence. When six of the accused were acquitted basing on the statements of prosecution witness that PW1 has falsely implicated them, there is no guarantee that these witnesses are speaking the truth insofar as the other accused, more so, having regard to the anti-timing of FIR; FIR reaching the court at a very belated stage; alterations and over-writings on the endorsement made by the Magistrate on the FIR and the inquest report reaching the court prior to FIR.

83) The shortcomings in the evidence of these witnesses, as noted above, lead to a serious doubt as to whether really the incident took place at the time and place pleaded by the prosecution. On the analysis, made above, we have no hesitation to hold that prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

84) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellants/accused in the Judgment, dated 07.03.2014 in Sessions Case No. 105 of 2010 on the file of the Special Judge for Trail of Cases under Scheduled Castes & Scheduled Tribes (Protection of Atrocities) Act-cum-VI Additional Sessions Judge, Kurnool, for the offence punishable under Sections 148, 302, 61 302, r/w. 149; 324, 324 r/w. 149; 506 & 506 r/w. 149 I.P.C., are set aside and they are acquitted for the said offences. Consequently, the appellants/accused shall be set at liberty forthwith, if they are not required in any other case or crime.

85) Consequently, miscellaneous petitions, if any, pending shall stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR __________________________________ JUSTICE R. RAGHUNANDAN RAO Date: 06/08/2020 Note: Mark LR Copy.

B/o.

SM.

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO Criminal Appeal No. 450 of 2014 (Per Hon'ble Sri Justice C.Praveen Kumar) SM Dt. 06.08.2020.

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