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2004 DIGILAW 1045 (AP)

Raghavaendram Pai v. State Of A. P.

2004-09-21

P.S.NARAYANA

body2004
( 1 ) HEARD Sri K. Anoop Kumar, learned counsel representing the appellant and the learned Additional Public Prosecutor Sri Md. Osman Saheed. This appeal is filed by the sole accused as against the judgment in S. C. No. 346 of 1997 on the file of the Metropolitan Sessions Judge, Hyderabad, holding the appellant guilty of an offence punishable under Section 307 I. P. C. and sentencing him to undergo rigorous imprisonment for period of two years. ( 2 ) LEARNED counsel submitted that though the investigating officer says that the scene of offence is a busy locality, except the interesting testimony of P. Ws. 1 and 2 no other witness had been examined and absolutely there is no motive attributed while the accused had perpetrated the alleged crime as against the injured. The learned counsel also had drawn the attention of this Court to several discrepancies in between the evidence of P. Ws. 1 and 2 and also the medical evidence and would submit that there is possibility of these injuries being sustained by a fall from the scooter cannot be ruled out and hence, the appellant had been falsely implicated in the present case. ( 3 ) PER contra, learned Additional Public Prosecutor would contend that the evidence of P. Ws. 1 and 2 would be more than sufficient coupled with evidence of doctor and in view of the fact that the guilt had been well established by the prosecution, the conviction and sentence imposed are well justified. ( 4 ) THE case of the prosecution is that the grand mother of Abhay Naik, the injured in this case, stays in the house situate opposite to Old M. L. A. Quarters, A-Gate, and that on 11-01-1996, Abhay Naik went to his grand mothers house in the morning along with his brother Rakesh Naik, and played kites over the terrace and at about 6. 00 p. m. , while they were returning to their house, situate in Kutbiguda and when they reached the main road, opposite M. L. A. Quarters, Gate-1 near the pan shop the accused, who is residing in one of the flats in the Canara Bank Quarters, approached them and started teasing them by using foul language and when Abhay Naik questioned the accused, the accused started pushing them and when Abhay Naik resisted him, the accused took out a knife from his pocket and stabbed him on the left side of his shoulder, back and below the left ear, and when Rakesh Naik interfered, the accused again stabbed him on the back side of his head and threatened them that he would kill both of them and would see their end. ( 5 ) THE case was taken on file by the learned XVII Metropolitan Magistrate, Hyderabad and the same was committed to the Court of session and the learned Sessions Judge recorded the evidence of P. Ws. 1 to 9 and marked Exs. P. 1 to P. 6. P. W. 7 had deposed that he did not witness any stabbing incident and that he did not see the accused and that he was not examined by the police of Narayanaguda and this witness was declared as hostile witness and that he also deposed in cross examination that it is not true to say that he stated to police as in Ex. P. 6. ( 6 ) IT is no doubt true that the evidence of P. Ws. 1 and 2 is available on record and except the competition in flying the kites, no other motive appears for perpetration of the crime. It is also the case of the prosecution that several independent witnesses were available at the place of occurrence and even as per the evidence of p. Ws. 1 and 2, the alleged incident was witnessed by 50 to 100 persons and the incident occurred in a busy area full of coconut vendors and other fruit vendors also. It is pertinent to note that none of them had been examined except P. Ws. 1 and 2. 1 and 2, the alleged incident was witnessed by 50 to 100 persons and the incident occurred in a busy area full of coconut vendors and other fruit vendors also. It is pertinent to note that none of them had been examined except P. Ws. 1 and 2. ( 7 ) P. W. 1 deposed that he is a student doing B. Com Final year and a resident of Kutbiguda and Rakesh Naik is his elder brother and that the accused is known to him as the accused has been residing since his birth near his Grandmothers house whose House Number is 3-5-703, opposite Old MLA Quarters, Narayanaguda, Hyderabad and whenever he used to visit his grandmothers house, he used to often see him. He further deposed that on 11-01-1996 around 6. 00 p. m. , he visited his grandmothers house along with his brother Rakesh Naik to fly kites and around 6. 30 or 7. 00 p. m. , they stopped flying kites and wanted to go back to their house and on the main road near Canara Bank, the accused accosted them and started using foul language against their sisters and then P. W. 1 questioned the accused and then the accused started pushing them, took a knife and stabbed him on the left backside of his shoulder and again he stabbed him below the left ear and also on the back of his head and when his brother rakesh Naik tried to catch him, the accused ran away towards Basheerbagh side and there were bleeding injuries. This witness was cross-examined at length. This witness deposed that he had no acquaintance with any of the family members of the accused and at around 7. 00 p. m. they left the house on a scooter and that he was a pillion rider and that P. W. 2 was driving the vehicle. He further deposed that he told the police all the facts that for about 45 minutes flying the kites and 15 minutes talking with their grand mother and then going on the scooter and that he had not mentioned to the police that they came down at about 6. 45 P. M. , and talked with their grandmother for about 15 minutes and then left on a scooter as a pillion rider. 45 P. M. , and talked with their grandmother for about 15 minutes and then left on a scooter as a pillion rider. This witness also deposed that the accused threatened him that he would kill and he further deposed that he had not stated in particular that the accused used foul language against his sisters, but the foul language was used. The incident occurred opposite to Canara Bank near the pan shop and there are fruit vendors and pan shops opposite to Canara Bank and that the incident occurred around 7. 00 p. m. and at the time of incident, there are 50 to 100 persons at the place of incident. The further deposed that he had not mentioned that so many people gathered at the place of incident, but he had stated that near pan shop at the gate of Old MLA Quarters, the incident had taken place and that the knife may be about 6 to 7 inches and that he does not know which type of knife it is and that he was sitting on the scooter while the accused stabbed him and that he did not state to the police that the accused stabbed him when he was sitting on the scooter and that he does not know whether any persons watched the incident except his brother and that no third person also interfered and that the accused was not having any vehicle and after stabbing him, the accused ran away towards Basheerbagh and that he was not aware that Narayanaguda Police Station is nearby and he did not come to the police station immediately. The other suggestions, no doubt, were denied. ( 8 ) P. W. 2 deposed that on 11-01-1996, this witness along with P. W. 1 visited grand mother and that they were flying kites since 6. 00 p. m. and after flying kites for about 45 minutes, they came down to go to their house around 7. The other suggestions, no doubt, were denied. ( 8 ) P. W. 2 deposed that on 11-01-1996, this witness along with P. W. 1 visited grand mother and that they were flying kites since 6. 00 p. m. and after flying kites for about 45 minutes, they came down to go to their house around 7. 00 p. m. , they left the house and that he was riding the scooter and P. W. 1 was a pillion rider and that the accused stopped them near first gate of Old MLA Quarters and started using foul language and on questioning the same, he stabbed P. W. 1 behind his left shoulder, below the left ear and back of the head and that he got down the scooter and tried to catch the accused, but he got down the scooter and tried to catch the accused, but the accused ran away towards Basheerbagh. This witness was cross examined at length. This witness deposed that if one has to go to Kutbiguda, one has to take left turn, but as they had to purchase medicines to their grandmother from a nearby medical shop, they had to turn right and cross the road and that he had no prescription, but remember the medicines used their grandmother and that he did not tell the police that they were going to get medicines to their grandmother and deposed that he had not specifically mentioned that he used to telephone to his uncles house. The other suggestions, no doubt, were denied. This witness also deposed that he does not know how many person witnessed the incident and after the first stab, P. W. 1 got down from the scooter and fell down and afterwards he put the scooter on stand and tried to catch the accused, but he ran away and that the knife is about 10 inches. ( 9 ) IT is needless to say that from the material available on records, the knife was not seized. P. W. 3 was declared as hostile witness and deposed that he had not witnessed any incident of accused stabbing anyone around 7. 00 p. m. , and no doubt, the suggestions put to him by the prosecution were denied. ( 9 ) IT is needless to say that from the material available on records, the knife was not seized. P. W. 3 was declared as hostile witness and deposed that he had not witnessed any incident of accused stabbing anyone around 7. 00 p. m. , and no doubt, the suggestions put to him by the prosecution were denied. ( 10 ) P. W. 4 deposed that on 11-01-1996, he examined P. W. 1 and found fracture of metacarpal bone of right hand and treated him and advised follow up treatment and that injury is grievous in nature. Ex. P. 3 is the opinion based on his report. The said injury can be caused by a knife, but this injury is also possible by a fall on rough surface of a stone and it was a blunt injury and not a cut injury and that there was no cut injury on the finger and that it would have been caused by a blunt weapon and that he was not concerned with other injuries. ( 11 ) P. W. 5 deposed that on 11-01-1996, he received telephonic message from Osmania General Hospital at 10. 00 p. m. that P. W. 1 was admitted in the hospital with injuries and then he proceeded to the hospital and recorded his statement marked as Ex. P. 1 and then he returned to the police station and on basis of Ex. P. 1, a case in Crime No. 9 of 1996 was registered under Section 307 I. P. C and issued FIR Ex. P. 4 and took up further investigation. He further deposed that he recorded the statements of P. Ws. 1 and 2 in cross examination, this witness deposed that P. Ws. 1 and 2 did not state before him that the accused used to harass their sisters and that he does not know there was enmity between P. Ws. 1 and 2 and accused on that account. ( 12 ) P. W. 6 deposed about the injuries and also deposed about the preliminary treatment and that X-rays were taken and that the case was referred to D. S. O. for further treatment. Ex. P. 5 is the wound certificate issued by him. 1 and 2 and accused on that account. ( 12 ) P. W. 6 deposed about the injuries and also deposed about the preliminary treatment and that X-rays were taken and that the case was referred to D. S. O. for further treatment. Ex. P. 5 is the wound certificate issued by him. In cross examination, this witness deposed that he had referred this case to P. W. 4 and he agrees with the opinion of P. W. 4 and that these injuries, except injury No. 2, can be caused by a fall from the scooter and that by examining injury No. 2, he opined that it is a stab injury and that the injured gave the description of weapon used. P. W. 7 as already referred supra was declared as hostile witness. ( 13 ) THIS witness deposed that on 11-01-1996 at about 7 p. m. he was in the bank and that he did not witness any stabbing incident and he did not see the accused. This witness deposed that it is not true to say that he stated before the police as in Ex. P. 6 and the suggestion put to him that since the accused is the son of his colleague he was deposing falsely was denied. ( 14 ) P. W. 8 is the Sub-Inspector of Police, who deposed that after completing the investigation and on receipt of the medical certificate, he filed charge sheet. P. W. 9 is the other investigating Officer, who deposed about details of investigation and that on his transfer his successor filed charge sheet after receiving medical certificate. This is the evidence available on record. ( 15 ) THIS knife, which is said to have been used in perpetration of crime, had not been seized by the police. Apart from this aspect of the matter, the evidence of P. Ws. 1 and 2 alone is available on record. The other witnesses alleged to have witnessed the incident had been declared hostile. Even as per the version of the prosecution, the scene of offence is a busy locality and several persons could have witnessed the incident. Except the interested testimony of P. Ws. 1 and 2, no other evidence is forthcoming. The other witness referred to supra had been declared hostile. Even as per the version of the prosecution, the scene of offence is a busy locality and several persons could have witnessed the incident. Except the interested testimony of P. Ws. 1 and 2, no other evidence is forthcoming. The other witness referred to supra had been declared hostile. No doubt, when direct evidence is available, motive may not be so relevant, but, however, the aspect of harassing their sisters, all that had not been deposed before the police and these are material omissions, which are put to these witnesses. On overall appreciation of the evidence available on record, the testimony of P. Ws. 1 and 2 on certain particulars appear to be inconsistent and also the material omissions which had been elicited in the cross examination of these witness, also would throw some suspicion over the incident and how it could have happened. The possibility of these injuries except one injury being caused by a fall from the scooter also cannot be ruled out from the medical evidence. Taking into consideration, the non-seizure of the weapon and also be discrepancy in the evidence of P. Ws. 1 and 2 and further the alleged eye witnesses being declared hostile and though it is a busy locality, non-examination of any other independent witness and also the possibility of all the injuries except one, being caused even by a fall from the scooter as per the medical evidence, this Court is of the considered opinion that the appellant/accused is entitled to benefit of doubt and the findings recorded by the learned Judge cannot be sustained and accordingly the are hereby set aside. The conviction and sentence is hereby set aside. The Criminal Appeal is allowed. The bail bonds shall stand cancelled.