BILAL NAZKI, J. ( 1 ) 28 persons were tried in Sessions Case No. 140 of 2003 by the II Additional Sessions Judge, rajahmundry. They were tried for the offences under Sections 148, 452, 427, 506, 302 and 302 read with 149 of I. P. C. A-1, a-4 to A-28 were found not guilty and were acquitted of all the charges. A-2 and a-3 have been found guilty and convicted for the offence under Section 302 of I. P. C. and have been sentenced to suffer imprisonment for life. They are also fined rs. 1,000/-, in default, they have to suffer imprisonment for three months. ( 2 ) THE allegations on the basis of which the charge-sheet was filed, were that in the intervening night of 1/2. 10. 2002 at about 1 o' clock, the accused, in furtherance of their common object, formed themselves into an unlawful assembly, committed house trespass into the house of Vadlapati Nariyya and committed mischief and caused his death at R. B. Patnam Village. They also committed the offence of criminal intimidation by threatening PWs. 1 to 5. On the basis of these allegations, charges were framed against the accused, who pleaded not guilty and claimed to be tried. ( 3 ) PROSECUTION examined 11 witnesses and exhibited documents. The defence did not led any oral evidence, but marked Ex. D-1. ( 4 ) THE prosecution tried to establish the case mainly through the testimony of pws. 1 to 5, who were cited as eye-witnesses. But according to the learned senior Counsel appearing for the appellants, the trial Court has also not believed the testimony of PWs. 3 to 5 and the trial court only believed the testimony of PWs. 1 and 2. In these circumstances, it becomes imperative to go to the evidence of PWs. 1 and 2 in the first instance. ( 5 ) PW-1 is the wife of the deceased. She stated that her husband was President of the Fisherman Co-operative Society of the tank called 'ragamma Cheruvu'. The society was known as 'venkateswara Co-operative Fisherman Society', locally known as 'ragamma Cheruvu Society'. She knew all the accused, who belong to her village. As President, her husband used to rear fish and sell the same. Her husband died about 14 months before. She has three children. Fishermen Society got divided into two groups. The society was known as 'venkateswara Co-operative Fisherman Society', locally known as 'ragamma Cheruvu Society'. She knew all the accused, who belong to her village. As President, her husband used to rear fish and sell the same. Her husband died about 14 months before. She has three children. Fishermen Society got divided into two groups. One group was led by her husband and the other group was led by A-1 and other accused. A-10 was the member of the Society and was an associate of A-1. The accused party had prevented her husband from fishing in the tank. They had also gone to Peddapuram Court and also to the High Court. They obtained a stay from the High Court, which was got vacated by her husband. The accused party had filed another writ petition and her husband contested the matter in the High Court and won the case. On the intervening night of tuesday/wednesday about 14 months before, she and her two sons and the deceased were sleeping in the house. At about 1 a. m. , A-2 to A-28 came to her house. A-2, a-3, A-4, A-6, A-8, A-14, A-18, A-19 and a-26 trespassed into the house. The remaining accused remained outside the house. They proclaimed that A-1 instigated them to attach her husband. A-2 beat the deceased with a stick on his head, A-3 beat the deceased with a rod on his left leg, A-4 beat the deceased with a stick, A-19 beat the deceased with wooden handle of the axe, A-12 beat the deceased with a stick, a-14 beat the deceased with a stick. All the accused were armed with sticks. The witness and her sons Vadlapti Venkata ramana and Vadlapati Poornachandra rao and LW-3 Vadlapati Lakshmi witnessed the attack on the deceased. The accused attacked her husband due to the disputes with regard to the 'rangamma cheruvu' fishing rights. The deceased died in their house. They shifted the deceased to government Hospital, Peddapuram. The doctor stated that the deceased had died before reaching to hospital. She gave report to the Police. Ex. P-1 was the report given by her to the Police. Police visited the scene of offence and prepared observation report. She was also present during the inquest held at Government Hospital, Peddapuram. She and her other relations were present at the time of inquest. She gave report to the Police. Ex. P-1 was the report given by her to the Police. Police visited the scene of offence and prepared observation report. She was also present during the inquest held at Government Hospital, Peddapuram. She and her other relations were present at the time of inquest. She could identify the weapons used by the accused in commission of the offence. M. O. 1 was the iron rod, m. Os. 2 to 5 were sticks and M. O. 6 was the wooden latch. ( 6 ) IN her cross-examination, she stated that her husband sustained grievous injuries during the incident. Immediately they tried to shift him to the hospital. They took the deceased on a doubt bullock cart to the hospital. She, LW-6 Vadlapati Raghavulu and LW-5 Vadlapati Poornachandra Rao accompanied the deceased to the hospital. Poornachandra Rao is a literate person. He was 17 years old. They reached the hospital at 3 a. m. Doctor was not available in the hospital. They telephoned to the doctor who came within half an hour. The doctor, on seeing the deceased, declared him dead. In fact, the deceased had died at the house itself. Doctor sent intimation to the Police on the same night. On the same night, she narrated the incident to the Police. They recorded her statement and read out the same to herself and obtained her thumb impression on her statement. On that night, her son did not go to the Police Station. Police also recorded the statement of her son on the same night. She did not know which Constable wrote the report. She handed over the report in the Police Station. Ex. P-1 was written by S. I. or by some other Police official. The distance between her village and the Government Hospital, peddapuram was 4 kilometers. Police Station was at a distance of one furlong from the government Hospital, Peddapuram. On the same night Police did not come to the hospital. LW-6 Vadlapati Veera Raghavulu did not make any statement before the Police on that night that he witnessed the occurrence. The distance between her village and the Government Hospital, peddapuram was 4 kilometers. Police Station was at a distance of one furlong from the government Hospital, Peddapuram. On the same night Police did not come to the hospital. LW-6 Vadlapati Veera Raghavulu did not make any statement before the Police on that night that he witnessed the occurrence. ( 7 ) IN response to the cross-examination by Counsel for A-2 to A-28, she stated that she did not know whether there had been any occurrence between her party men and the opposing party at 'ragamma Cheruvu' between 9 p. m. and 10 p. m. , but she accepted that in an incident in that night, some persons from her party had beat Kukkala Veerabhadra Rao of accused party and a criminal case was pending. She also denied the suggestion that a-2 to A-4 had taken the injured to the peddapuram Government Hospital and from there to Government General Hospital, kakinada along with the Police. She also denied the suggestion that A-2 to A-4 were not in the village on the day of occurrence and they were at Government Hospital, kakinada. ( 8 ) COMING to the testimony of this witness, the learned Senior Counsel submits that the witness had stated that once they reached the hospital, the doctor had sent intimation to the Police on the same night. This intimation, as a matter of fact, was the first Information Report, but was suppressed. According to the learned Counsel, she also stated that on the same night, she narrated the incident to the Police and Police recorded her statement, read out the same to her and obtained her thumb impression. This appears to be second report, which is also suppressed, because, this statement, according to the witness, was made to the police in the hospital itself. Then comes the third report, which is Ex. P-1, which according to the witness, was given by her in the police Station. The learned Counsel submits that the incident had occurred, according to the prosecution, at 1 o' clock in the night and there is no evidence that there was any light in which 28 persons could be recognized and identified by the witness. She vividly stated as to who were the accused who entered her house and who were the accused who remained outside the house. She vividly stated as to who were the accused who entered her house and who were the accused who remained outside the house. It was not physically possible to give such a vivid account of the occurrence. Obviously, because of the rivalry of two groups, all the persons belonging to other group have been arrayed as accused. It is further stated by the learned Senior Counsel that the name of pw-2 who is shown as a witness i. e. Vadlapati Venkata Ramana was not even mentioned by PW-1 in Ex. P-1. ( 9 ) COMING to the testimony of PW-2, he stated that deceased was his father, pw-1 is his mother, LW-5 is his younger brother and LW-3 is his paternal aunt. He knew all the accused. His father was president of 'venkateswara Fisherman Co-operative Society'. There were two groups in the Society. His father was leader of one of the groups and A-10 was the leader of another group. The offence took place on the night of 1/2. 10. 2002. When they were sleeping in the house, at about 12 midnight, a-2 to A-4, A-6, A-8, A-12, A-16 and a-18 entered into their house while A-1 was standing outside and instigating them. They dragged the deceased from the house to the pial outside the house. A-3 beat the deceased with an iron rod on his thigh, A-2 beat with the deceased with a stick on his head, A-12 beat the deceased with kavadi badda, A-8 beat the deceased with a stick on the head, A-4 beat the deceased with a stick and A-6 beat the deceased with a stick. The witness, PW-1, his younger brother Poornachandra Rao and LW-3 lakshmi witnessed the incident. The deceased died while taking to the Government hospital. The accused attacked the deceased due to the disputes in the Society. Police came to the village at about 9 a. m. PW-1 gave report to the Police. Police examined him and recorded his statement. His two legs are effected with polio and he cannot move without the assistance of anybody. ( 10 ) IN his cross-examination, he stated that on the date of incident, the deceased was sleeping in Kottu gadi. He denied that at the time of occurrence they were sleeping in the house and they did not witness the incident. Before telling to Police, he did not inform any one about the incident. ( 10 ) IN his cross-examination, he stated that on the date of incident, the deceased was sleeping in Kottu gadi. He denied that at the time of occurrence they were sleeping in the house and they did not witness the incident. Before telling to Police, he did not inform any one about the incident. His mother and brother were also examined by the police along with him. In his presence, PW-1 prepared the report and handed over it to the Police. He was examined by the Police at his house in the village. Police obtained thumb impression of PW-1 on her statement. LW-3 Lakshmi and LW-6 Veera Raghavulu were also examined at the same time. ( 11 ) NOW again, the learned Counsel for appellants submits that according to this witness, another version comes that Police came to the village at 9 am, after the occurrence and report was given by PW-1 to the Police at the house. He himself was not named as a witness in the report given by PW-1, and on his own showing, he was a Polio-ridden person and both his legs had been effected and he could not even move without the assistance of anybody, therefore, it is highly impossible that he came out of the house, saw all 28 persons and identified them. ( 12 ) ABOUT the testimony of PWs-3 to 5, the trial Court did not believe that PWs. 3 to 5 were present on the spot when the occurrence took place. For this, reasons were given in Paragraphs 32 and 33 of the judgment of the trial Court and we are in agreement with the finding of the trial Court that the presence of PWs. 3 to 5 at the place of occurrence at the time of occurrence is doubtful. ( 13 ) PW6 was a Fisheries Development officer, who spoke about elections to the society. PW-7 is a Photographer who took photographs of the deceased. PW-8 is a panchayat Secretary. He accompanied the police to the house of deceased and in his presence, Police inspected the scene of offence and seized M. O. 6 wooden latch, blood stained cloth, blood stained cement floor piece and ordinary cement floor piece without blood stains. M. O. 7 was the blood stained cloth. On the same day, he was also present when the inquest was held over the dead body. M. O. 7 was the blood stained cloth. On the same day, he was also present when the inquest was held over the dead body. ( 14 ) PW-9 was the Medical Officer who conducted the post-mortem on 2-10-2002 at 4. 15 p. m. He found the following injuries on the body of the deceased-"external Injuries :-1. Lacerated injury of scalp vertically placed in midline near frontal region 6 cms x 2 x bone deep. 7" from left ear and 9" from right ear. 2. Lacerated injury left parietal region 5 cms x 2 cms x bone deep. 9 cms from left ear lobule. 3. Lacerated injury posterior aspect of skull. 2 cms x 1 cm x bone deep in mid line of occipital region, 8 cms from hair line. 4. Lacerated injury posterior aspect of skull 2 x 1 cms x bone deep. Just above injury no. 3 in mid line. 5. Contusion left thigh 13 x 2 cms more like with stick impression with redness. 6. Lacerated injury posterior aspect of left hand 2 in number one below the other measuring x cms. 5" from left elbow. 7. Minor abrasion right lower abdominal wall 12 x 2 cms. Internal Examination : scalp : Diffuse collection of blood over skull relating to injuries Nos. 1, 2, 3 and 4 (external injuries) with margins merging with each other. Fracture skull : Obliquely placed extending from left frontal bone crossing the sagital suture extending to right parietal bone. Lenier fracture temporal bone on right side with depressed fracture segment. Lenier fracture left temporal bone with depressed fracture segment. Multiple haemotomas present diffusely on both cerebral cortices and frontal, parietal, occipital and temporal regions of about 150 cc clotted blood present. 50 cc of clotted blood present at the base of the skull. Hyoid and neck structures are intact. Chest wall and ribs are intact. Both lungs are congested. Heart pale. Chambers are empty. Liver, pancreas and spleen are pale. Stomach distended with 100 ml of semi-digested food particles. Intestines extended with gases. Right kidney ruptured. Left kidney intact and pale. Spinal column is intact. Urinary Bladder is empty. External genetalia are intact. " his opinion was that death had been caused due to injuries to vital organs i. e. brain, skull and kidneys. Liver, pancreas and spleen are pale. Stomach distended with 100 ml of semi-digested food particles. Intestines extended with gases. Right kidney ruptured. Left kidney intact and pale. Spinal column is intact. Urinary Bladder is empty. External genetalia are intact. " his opinion was that death had been caused due to injuries to vital organs i. e. brain, skull and kidneys. ( 15 ) PW-10 is the Sub-Inspector of police, who stated that on 2-10-2002 at 8 am, he received intimation from the Government hospital, Peddapuram. Immediately he proceeded to Government Hospital, peddapuram. PW-1 presented a written report before him, which is marked as Ex. P-1. He returned to the Police Station and registered ex. P-1 as a case in Crime No. 200 of 2002 and submitted copies of F. I. R to all concerned officers and the original F. I. R. to the j. F. C. M. , Peddapuram. Ex. P-36 was the f. I. R. PW-11 Inspector of Police took up the investigation. ( 16 ) AGAIN, this witness had spoken about receiving of intimation from the government Hospital, Peddapuram at 8 a. m. This intimation was not produced and was suppressed. He stated that PW-1 presented written report at Government Hospital, whereas PW-1 submitted that written report was given on the next day at the village. In his cross-examination, he stated that he had not sent death intimation of the deceased to the Court. Even in F. I. R. Ex. P-36, he had not mentioned that he had received an intimation at 8 a. m. , from the hospital. It may also be noted that even in Ex. P-1, the sub-Inspector of Police had stated, "received this report on 2-10-2002 at 9 am and registered the same as a case in Cr. No. 200/2002". ( 17 ) PW 11 is Inspector of Police, who stated that on 2-10-2002 at about 9. 15 a. m. , he received phone message about the registration of Crime No. 200 of 2002. Then he rushed to Peddapuram Police Station, took up copy of F. I. R. , perused the same and visited the scene of offence. Thereafter, he made the investigation. In his cross-examination he stated that he did not know whether on the same night the wife of the deceased came to the Police Station and her statement was recorded or not. Thereafter, he made the investigation. In his cross-examination he stated that he did not know whether on the same night the wife of the deceased came to the Police Station and her statement was recorded or not. He did not know whether her statement was suppressed and Ex. P-1 came into existence. ( 18 ) IN the light of this evidence, it is highly improbable that PW-2 was present at the scene of occurrence. Even if he had been present at the scene of occurrence, it is highly improbable that he had witnessed all the accused persons committing the offence, as he was physically handicapped and even could not move without the assistance another person. PW-1's evidence cannot be believed for the reasons that she did not mention the name of PW-2, who was her own son, as an eye-witness in the first Information Report. It is doubtful whether she made a statement before the police at the hospital or Police Station or at her house on the next day morning. The intimation given by the hospital to the Police at 8 am. , was also not produced. ( 19 ) IN this view of the matter, the appeal is allowed. The conviction and sentence imposed against the appellants is set aside. They shall be released forthwith, if not required in any other case. They are entitled to refund of fine amount paid, if any.