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2008 DIGILAW 37 (AP)

G. Chinna Boji v. State of Andhara Pradesh

2008-01-23

B.PRAKASH RAO, L.NARASIMHA REDDY

body2008
L. NARASIMHA REDDY, J :- The appellants 1 and 2 herein were charged with the offence under Section 302 of the Indian Penal Code (IPC) and the third appellant was charged for the offence under Section 302 read with Section 114 IPC and all of them, in turn, were charged for committing the same offence with common intention i.e., committing murder of one Joga Kannaiah at 08.00 p.m., on 19.2.2000 at the bus stop of Ramavaram Village of Kothagudem District. In Sessions Case No.5 of 2002, the Court of the V Additional District and Sessions Judge (FTC), Khammam at Kothagudem convicted the appellants for the offence under Section 302 read with Section 34 IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs.l,000/- each, in default, to suffer simple imprisonment for three months. Hence, the appeal. 2. The prosecution against the appellants was set at motion with the submission of a complaint in Ex.P.1 by P.W.1-wife of the deceased. She stated that she received information from P.W.3 to the effect that he was informed by P.WA that when Kannaiah was returning from the neighbouring village on a bicycle, the appellants herein attacked him with a knife and sticks and on receiving the first blow, Kannaiah left the bicycle and started running. It was alleged that he was chased by the appellants and at a distance of 100 yards from the place where he left the cycle, he was attacked with sticks and he fell down. P.W.1 is said to have gone to the scene of offence and noticed that her husband died of the injuries. She referred to' some family disputes, as the motive for the appellants to commit the murder of her husband. 3. P.W.10-the Sub-Inspector of Police, Julurpad took up the investigation, conducted inquest and caused the postmortem through P.W.11. The inquest report and the post-mortem certificate were marked as Exs.P.2 and P.7 respectively. Charges under the relevant provisions were framed. The appellants pleaded not guilty. The trial Court held that the appellants committed murder of the deceased and imposed the sentences, as indicated above. 4. Sri C. Pratap Reddy, learned Counsel for the appellants, submits that there is a serious discrepancy in the evidence of the so called eye-witnesses namely P.Ws.4, 5 and 6 and that the contents of EX.P.1 are at variance with the evidence of the said witnesses. 4. Sri C. Pratap Reddy, learned Counsel for the appellants, submits that there is a serious discrepancy in the evidence of the so called eye-witnesses namely P.Ws.4, 5 and 6 and that the contents of EX.P.1 are at variance with the evidence of the said witnesses. He submits that the version presented by P.W.1 is not supported by the evidence of other witnesses. Learned Counsel further points out that the particulars of the offence mentioned in the FIR marked as Ex.P.6 are different from those stated by P.W.10, the Investigating Officer, in his evidence. He further contends that there is unexplained delay of 5 hours, between the occurrence and submission of Ex.P.1. Placing reliance upon the judgment of the Supreme Court in State of U.P. v. Bhagwan and others, 1997 (2) ALD (Crl.) 415 (SC) = 1997 (3) Crimes 232 (SC), he submits that the conviction and sentence against the appellants cannot be sustained in law or on facts. 5. Learned Additional Public Prosecutor submits that the evidence of the eyewitnesses is consistent except for minor discrepancies and that the same cannot constitute the basis to interfere with the well considered judgment of the trial Court. He further submits that having regard to the distance between the police station and the place of occurrence and in view of the absence of transport facilities, it cannot be said that there was undue delay in filing the complaint. 6. The prosecution examined P.Ws.1 to 11 and filed Exs.P.1 to P.9. P.W.1 is the wife and P.W.2 is the sister, respectively, of the deceased. Information about the incident is said to have been passed on to P.W.1 by P.W.3. P.Ws.4 and 5 are the spouses and they are said to have witnessed the occurrence. P.W.6 is another eyewitness. P.W.7 is the witness to the inquest panchanama. P.Ws.8 and 9 are the witnesses to the arrest and confession of the appellants, and they were declared hostile. P.W.I0 is the Sub-Inspector of Police and P.W.11 is the Doctor, who conducted autopsy on the dead body of the deceased. P.W.12-the Circle Inspector, who conducted part investigation, arrested the appellants and seized the material objects. 7. One of the points urged on behalf of the appellants is that there was unexplained delay of 5 hours between the time of occurrence and registration of the FIR. P.W.12-the Circle Inspector, who conducted part investigation, arrested the appellants and seized the material objects. 7. One of the points urged on behalf of the appellants is that there was unexplained delay of 5 hours between the time of occurrence and registration of the FIR. It is a matter on record that the incident occurred at 08.00 a.m., and that the information was received at police station at 01.00 p.m., on the same day. The incident took place at an interior place and the distance between the place of occurrence and the police station is about 20 Kms. P.W.1 is naturally grief sticken and she cannot be expected to move to the police station immediately. Further no questions were put to the Investigating Officer, P.W.12 or P.W.1 in their cross-examination, about the delay. Therefore, we are not satisfied that there was any unexplained delay in registration of the FIR. 8. P.W.1, who submitted the complaint, is not an eye-witness and her source of information is P.W.3. It was mentioned in EX.P.1 itself that P.W.3 received the information about the incident from P.W.4. When we examine the deposition of P.W.3, it becomes clear that the source of information for him about the incident is P.W.6 and another person by name Padma. He did not make any mention about P.W.4. 9. The chief-examination of P.W.3 is very brief and it reads as under: "I am resident of Ramavaram Village. I know the deceased Kanniah and accused. On 19.2.2000 at about 8 a.m I was informed by Uke Lalamma and Sarlanka Padma that the accused were beating the deceased. I went and informed the same to L.W.1. I did not observe anything. While I was returning from agri. operations and about to enter on the road, these two people informed me about the incident., Without observing anything, I went and reported the matter to P.W.1. I was examined by the police." From this, it becomes clear that he informed P.W.I alone and his source of information is P.W.6 and Padma. For the reasons best known to it, the prosecution did not examine Padma as a witness. 10. P.W.2 stated that she was also informed by P.W.3 about the incident and that herself and P.W.1 went to see the dead body of the deceased. It is her further case that herself and P.W.1 got Ex.P.1 drafted by P.W.7. For the reasons best known to it, the prosecution did not examine Padma as a witness. 10. P.W.2 stated that she was also informed by P.W.3 about the incident and that herself and P.W.1 went to see the dead body of the deceased. It is her further case that herself and P.W.1 got Ex.P.1 drafted by P.W.7. However, neither P.W.1 nor P.W.3 made any reference to P.W.2 or any other witness. Ex.P.1 is also silent about the participation or accompanying of P.W.2 with P.W.1. 11. Notwithstanding the discrepancies referred to above, if the evidence of P.Ws.4, 5 and 6 is consistent and reliable, the conviction against the appellants can certainly be maintained. P.Ws.4 and 5 are spouses. P.W.4 stated that himself and his wife have witnessed the incident but they do not 1mow the reason for commission of the offence. His deposition in chief is very brief and reads as under: "I am resident of Ramavara Village. I know the deceased Kannaiah and accused. At about 5 years back in the night time all the accused stabbed the deceased. Myself and my wife witnessed the occurrence. I was examined by the police. I do not know the reason for the commission of offence. M.R.O. also examined me." 12. According to this witness, the incident took place during the night time. His wife P.W.5, on the other hand states that the incident took place in the morning time. She supplemented the particulars of the incident to certain extent. According to her, the first appellant stabbed the deceased with a 1mife on the left shoulder and right cheek, and on receiving the same, the deceased fell down and soon thereafter, accused Nos.2 and 3 beat the deceased with sticks. The evidence of other witnesses suggests that the distance between the cycle and the place at which the deceased fell down is 4 to 5 yards. If that is true, the theory of chasing becomes doubtful. She further stated that when herself and others tried to interfere, the appellants threatened them. She spoke about the presence of P.W.6 and one Padma, at the bore well. 13. P.W.6 stated that herself and Padma were at the bore well and they saw the first appellant stabbing the deceased on the left shoulder with a knife. She further stated that when herself and others tried to interfere, the appellants threatened them. She spoke about the presence of P.W.6 and one Padma, at the bore well. 13. P.W.6 stated that herself and Padma were at the bore well and they saw the first appellant stabbing the deceased on the left shoulder with a knife. The deceased is said to have fallen down and soon thereafter the appellants 2 and 3 said to have beat him with sticks on the head and right cheek. Her evidence suggests that the entire incident occurred at one and the same place. In the cross-examination, she stated that the distance between the borewell and the place of occurrence is 15 yards. 14. The scene of offence was inspected by P.W.10-the Sub-Inspector of Police. In the cross-examination, he furnished the details thereof. According to him, the cycle, on which the deceased was travelling, had fallen down at a place and the dead body was found at a distance of 100 yards from the cycle. He further stated that the distance between the place at which the dead body was lying and the bore well is 200 yards and the distance between the bore well and the place where the cycle was lying is 300 yards. If one goes by the particulars furnished by P.W.10, the version presented by P.Ws.4, 5 and 6 becomes somewhat untenable in the context of the place of occurrence. The clear contradiction between the evidence of P.Ws.4 and 5 about the timing of occurrence has already been pointed out. P.W.6,was admittedly at the bore well, which is at a distance of 300 yards from the place where the deceased was said to have been attacked first. It is just impossible for any person standing at a distance of 300 yards, to observe what is taking place at the other end, much less to identify the persons at that place. 15. In State of U.P.'s case (supra), the Supreme Court discussed the similar aspect and held that if it is improbable for the witnesses to notice the occurrence at a distance, conviction cannot be based on the evidence of such a witness. 15. In State of U.P.'s case (supra), the Supreme Court discussed the similar aspect and held that if it is improbable for the witnesses to notice the occurrence at a distance, conviction cannot be based on the evidence of such a witness. Another discrepancy is that P.Ws.5 and 6 have stated that the entire attack has taken place almost at the same place, whereas in Ex.P.10, it was mentioned that on receiving the first blow, the deceased left the cycle and ran upto a distance of about 100 yards, and there, he was attacked by the appellants 2 and 3. This accords the particulars furnished by P.W.10 in his cross-examination. 16. Substantial information was elicited in the cross-examination of P.WA to the effect that the deceased was associated with extremist groups and that himself and certain others were accused of extortion of amounts from the local ryots and that K.D. sheets were opened in the police station against them. Differences between the extremist groups and the local area were also pointed out. 17. When there are so many discrepancies in the evidence of the so-called eye-witnesses on material aspects and when there exist several missing links, it is not at all safe to convict the appellants herein. Further, the motive attributed to them is so remote that hardly one can think of commission of offence of this magnitude, on that account. 18. Therefore, the criminal appeal is allowed, setting aside the conviction and sentence recorded against appellants 1 to 3-accused Nos. 1 to 3 by the V Additional District and Sessions Judge (FTC), Khammam of Kothagudem in S.C. No.5 of 2002, dated 25.10.2005. They shall be released forthwith, unless they are needed in any other case.