JUDGMENT (L.Narasimha Reddy) The appellant was tried by the Court of the learned I Additional District and Sessions Judge, Cuddapah, in Sessions Case No.185 of 2000, for the offence of murdering his younger brother, by name G. Siva Nagabushanam, in the intervening night of 15th/16th of January, 2000. The trial Court convicted the appellant of the said offence and imposed punishment of imprisonment for life, through its judgment dated 09-02-2001. Hence, this appeal. 2. The mother of the appellant, P.W.1, submitted a complaint, Ex.P-1, before the P.S. Pulivendula, stating that: She had three sons viz., Subbarayudu (P.W.2), Rama Subbarayudu, (appellant), Siva Nagabushanam (deceased) and a daughter, Ramasubbamma (not examined). The appellant studied I.T.I. and was employed in a private firm in Rangareddy District. Later he returned to Pulivendula, his native place, along with his wife, stating that the factory was closed. Subsequently, he became mentally unsound and was quarreling with the family members without doing any work. He was accorded treatment in Government mental hospital, Vizag and thereafter at Nimhans hospital, Bangalore. The deceased studied B.Ed., but was not employed. The accused was inimical towards the deceased and was quarreling with him frequently. At about 9 p.m. on 15-01-2000, P.W.2 went to the thrashing ground to watch the harvested crop. Rama Subbamma came to the house of P.Ws.1 and 2 on the occasion of festival. While P.W.1 and Rama Subbamma slept on the floor, the appellant slept on the table, adjacent to them on that day. The deceased slept on the pial in front of the house, to watch the cattle. P.W.1 woke-up at around 3 a.m. and found that the accused was not there, on the table in the house. She thought that he might have gone to attend the calls of nature. She found the deceased was sleeping on the pial and thereafter, she came inside the house and slept. Again at 4 a.m., she woke-up and drew the milk from the cattle, and left the milk at the hotel. When she came back, she found P.W.2, in the house. He stated that the milk is needed for themselves, on the eve of festival. He shifted the cattle outside and brought the milk can back, from the hotel. When P.W.1 tried to wake-up the deceased Nagabushanam, who was sleeping on the pial, at 5.30 a.m., he did not respond, and she felt some wetness. He stated that the milk is needed for themselves, on the eve of festival. He shifted the cattle outside and brought the milk can back, from the hotel. When P.W.1 tried to wake-up the deceased Nagabushanam, who was sleeping on the pial, at 5.30 a.m., he did not respond, and she felt some wetness. On a close examination, she found hacked injuries on his forehead, above the eye brows and that he was lying in a pool of blood. She stated that the appellant herein killed the deceased due to grouse and fled away. 3. The First Information Report (for short 'F.I.R.'), marked as Ex.P-6, was registered and investigation was taken up. Rough sketch of the scene of offence was prepared as Ex.P-7. Inquest of the dead body was conducted under Ex.P-4 and postmortem was certified through Ex.P-5. Subsequently, F.S.L. reports were secured as Exs.P-10 and P-11. 4. The prosecution alleged that the appellant killed the deceased with a spade, on account of his mental imbalance and family disputes. P.W.4 is said to have seen the appellant while hitting the deceased with the spade. The handle of spade as well as the blood stained clothes found at the scene of occurrence were sent to the F.S.L. Though it was certified that traces of blood were present on them, the blood group was not determined. The trial Court framed the charge. The appellant pleaded not guilty. After full trial, the appellant was held guilty and was sentenced accordingly. 5. Sri Pullagura Jayarao, learned counsel for the appellant, submits that the evidence of the so-called eyewitness, P.W.4, is totally unreliable, in view of the information elicited through him in the cross-examination. He contends that the mother and brother of the deceased and appellant, P.Ws.1 and 2, respectively, have presented a twisted and cooked up version against the appellant, in view of the family disputes. He submits that there are several contradictions in Ex.P-1 on the one hand, and in the oral evidence of P.Ws.1 and 2 on the other hand. Learned counsel submits that serious inconsistency is noticeable even as to the manner in which F.I.R. came to be registered. It is also his case that the trial Court had formed an opinion as to the mental condition of the appellant without any basis and any material on record. 6. Learned counsel submits that serious inconsistency is noticeable even as to the manner in which F.I.R. came to be registered. It is also his case that the trial Court had formed an opinion as to the mental condition of the appellant without any basis and any material on record. 6. The learned Additional Public Prosecutor, on the other hand, submits that none other than the mother and elder brother of the appellant have spoken to the events that led to the death of the deceased and that there is clinching evidence to prove the involvement of the appellant, in the crime. He submits that though some inconsistency is noticed as to the manner in which the information about death of the deceased was given to police, the fact, however, remains that Ex.P-1 constitutes the basis for registration of crime. He further contends that the evidence of P.W.4 is very clear, to prove the acts, attributed to the appellant. 7. This is one of the rare cases where a mother had to shoulder the heaviest possible task, viz., to accuse one of her sons, of committing the murder of another. No women, even in the worst of circumstances, would imagine that she would face such a delicate situation. Equally, same, the Court is also faced with an unenviable situation, of assessing the evidence of the mother in the context of holding one of her sons, guilty of killing another. 8. The prosecution examined P.Ws.1 to 3, mother, elder brother and maternal aunt, respectively, of the deceased, respectively, and the appellant. P.W.4 is said to be an eyewitness to the occurrence and P.Ws.5 and 6 are the witnesses to the arrest of the appellant on 30-01-2000. P.W.7 is a panch to the inquest and P.W.8 is the Doctor, who conducted the postmortem. He opined that the deceased died on account of shock and hemorrhage and injury to brain. In the cross- examination, it was elicited through him that the injuries mentioned in the postmortem certificate are not possible through the handle portion of a spade. P.W.9 is the Sub Inspector of police, who registered a case and P.W.10 is the Circle Inspector of police, who conducted the investigation. 9. The relation-ship of the accused, deceased and some of the witnesses has already been mentioned. There is some discrepancy as to the very manner in which the F.I.R., Ex.P-6, came to be registered. P.W.9 is the Sub Inspector of police, who registered a case and P.W.10 is the Circle Inspector of police, who conducted the investigation. 9. The relation-ship of the accused, deceased and some of the witnesses has already been mentioned. There is some discrepancy as to the very manner in which the F.I.R., Ex.P-6, came to be registered. Ex.P-1 is a complaint, submitted by P.W.1, at 8.30 a.m. on 16-01-2000. It furnishes a detailed account of the state of affairs in the family as well as incident of the murder of the deceased. In Ex.P-6, reference was made to Ex.P-1 as the basis. P.W.9, Sub Inspector of Police, who registered crime, has also stated that the crime was registered on the basis of Ex.P-1. From this, it emerges that the sole basis for the police to register case was Ex.P-1, submitted personally by P.W.1. However, in her chief-examination, P.W.1 stated as under: When I tried to wake the deceased, he did not wake-up. When I touched his head, my hands were stained with blood. By the time, I found him he was dead. Some time thereafter, my eldest son went to the police station and gave information about the death of the deceased. After his return to the house, we both went to the police station and I gave complaint to the police. I got prepared Ex.P-1 through a person who was present near the police station. 10. Similarly P.W.2 stated that he went to the police station soon-after noticing the incident, and there, the Sub Inspector of police refused to take cognizance of his complaint and insisted that his mother, P.W.1 must accompany him. He is said to have returned home and took P.W.1 along with him to the police station, and accordingly, Ex.P-1, was prepared and submitted, in the police station. 11. If P.W.2 had furnished the information to the police about the incident, a case ought to have been registered, and investigation should have been taken up, without awaiting any formal written complaint. It is not as if P.W.2 was an unknown or unrelated person. 11. If P.W.2 had furnished the information to the police about the incident, a case ought to have been registered, and investigation should have been taken up, without awaiting any formal written complaint. It is not as if P.W.2 was an unknown or unrelated person. Further, when the death was noticed at 5.30 a.m., early in the morning, and when the police station is within a distance of half kilometer, in the same town, the delay of three hours assumes significance, particularly, in view of the conflicting versions presented about the manner of giving intimation of the incident to the police. 12. A perusal of Ex.P-1 discloses that the appellant was said to be mentally unsound, so much so that he was subjected to treatment at the Government mental hospital, Vizag and thereafter, at Nimhans hospital, Bangalore. P.W.1 reiterated the same in her deposition. If this were to be true, the appellant deserved to be extended to the benefit of protection under Section 84 I.P.C. The trial Court has undertaken verification into the mental condition of the appellant in that regard. 13. The trial Court appears to have obtained a certificate from a hospital about the mental condition of the appellant. The Court formed an opinion that appellant was of sound mind, and on that account, denied the benefit of protection under Section 84 IPC. It is rather curious that neither the record, relating to the treatment of the appellant in the Government mental hospital, at Vizag or Nimhans at Bangalore, nor the certificate relied upon by the Court, were made part of the record. Such an important aspect was dealt with in a very callous and indifferent manner. Opinions in this regard were formed very liberally. 14. The case of the prosecution rested much upon the evidence of P.W.4. It is to be noted that P.W.1 did not witness the occurrence, by herself. Her daughter Rama Subbamma, who was said to be very much in the house, was not examined. P.W.2, admittedly was not sleeping in the house. Therefore, much depended on the evidence of P.W.4. 14. The case of the prosecution rested much upon the evidence of P.W.4. It is to be noted that P.W.1 did not witness the occurrence, by herself. Her daughter Rama Subbamma, who was said to be very much in the house, was not examined. P.W.2, admittedly was not sleeping in the house. Therefore, much depended on the evidence of P.W.4. In his chief examination, this witness stated that on the date of incident, he slept in front of the house, he woke-up, during night, to answer the nature calls, and when he was passing in front of the house of P.W.1, he found the appellant beating a person sleeping on the pial, with a spade. He further stated that he went nearer to the appellant, and when the latter, raised the spade, being afraid of attack, he ran away, reached the house of his sister. After some time, he is said to have been informed about the death of the deceased. 15. Three important aspects need to be noted with reference to the chief- examination of P.W.4. The first is that he did not mention the time at which he woke-up or saw the appellant attacking the deceased. The second is that he did not mention that he has shared whatever he has witnessed with anyone. It is noteworthy that he was examined by P.W.9, after the postmortem was conducted. The third is that the sister of P.W.4, whose house, he is said to have rushed, on account of fear of attack by the appellant, was not examined. 16. In the cross-examination, it was elicited through him that since it was peak of winter in January, people would not sleep outside the houses. Admittedly, P.W.4 was an old man of 60 years. It was also elicited through him that there existed a septic lavatory in his house. When there existed such a facility and when even according to him, people would not sleep outside the houses, during winter, it is next to impossibility that he went to a distant place at odd hours, to answer the nature call and in this process, noticed the occurrence. It is unnatural that people of the age of P.W.4, would walk long distances to answer nature calls at midnight, that too, in a developed town like Pulivendula. Many more contradictions were elicited through him. It is unnatural that people of the age of P.W.4, would walk long distances to answer nature calls at midnight, that too, in a developed town like Pulivendula. Many more contradictions were elicited through him. Important among them is that he did not hear the cries of any one at the time of alleged incident. If a person was attacked with a spade, resulting in death, the minimum expected reaction from the victim is loud cries, or moving away for protection. In relation to P.W.4, the following was elicited through P.W.9, the Sub Inspector of Police. "P.W.4 did not state before me that he slept on the date of incident at the outside of his house. P.W.4 did not state before me that on the date of incident he was in the house of his sister situated in Ankalammapet." Therefore, the presence of P.W.4, at the occurrence, is totally unnatural and this Court is convinced that he is a planted witness. 17. The medical evidence has its own importance in this case. The post-mortem conducted, vide Ex.P-5, on the deceased revealed the existence of the following injuries: 1) A vertical lacerated wound above the Rt. Eye brow measuring about 4 x 1cm x bone deep, fracture (cut) of the frontal bone. 2) A vertical lacerated wound on the Rt. parietal area measuring about 4x1 cm x bone deep, fracture of parietal bone Rt. 3) A transverse lacerated wound on Rt. temporal area measuring about 6 x 1 1/2 cm x bone deep fracture of the underlying bone" It was opined that the death was on account of injury to brain, shock and hemorrhage. Ex.P-5 was filed through the Doctor, PW-8. In his chief-examination, he opined that the injuries are possible by spade. The cross-examination of this witness reads as under: "All the three injuries are cut fractures. It is true that I found single fracture in all the three injuries. I did not find multiple fractures, during the time of P.M. examination. I have not mentioned injury to the underlying tissues. It is true that if a person is hit with the stick portion present near the ring portion of spade, there will be severe damage to the brain. The injuries mentioned in the P.M. Certificate are not possible by the stick portion of the ring portion of the spade". I have not mentioned injury to the underlying tissues. It is true that if a person is hit with the stick portion present near the ring portion of spade, there will be severe damage to the brain. The injuries mentioned in the P.M. Certificate are not possible by the stick portion of the ring portion of the spade". Though blood stains were noticed, it was mentioned in the Forensic Science Laboratory report, marked as Ex.P-11, that the group thereof could not be determined. 18. In Ex.P-1, PW-1 stated that due to fear of attack from the appellant, the deceased used to sleep in the house of his maternal aunt i.e. the sister of PW- 1, by name Chatta Pullamma. However, she was not examined. 19. Though we find it somewhat difficult to assume that P.W.1, the mother, would depose against her son, the facts and circumstances of this case are such that the family disputes cannot be ignored. Without placing anything on record about his mental condition, it was alleged that the appellant was picking up quarrels. Not a single person, either from the family or outside was examined to reveal the mental status or the conduct of the appellant. We are of view that it is not at all safe to convict the appellant on the basis of the incoherent and unnatural evidence, which is discussed above. 20. We accordingly, allow the appeal and set aside the conviction and sentence against the appellant. He shall be set at liberty, forthwith, unless needed in any other case.