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2012 DIGILAW 1274 (AP)

Madisetti Venkata Rao v. State of A. P.

2012-12-21

N.V.RAMANA, P.DURGA PRASAD

body2012
JUDGMENT P. Durga Prasad, J. 1. This appeal is directed against the conviction and sentence passed in S.C. No. 185 of 2008 by the VI Additional Sessions Judge (Fast Track Court), East Godavari District at Rajahmundry on 29.12.2008. 2. The appellant herein is A-1 and he along with A-2 to A-4 were prosecuted for the offence under Section 302 read with Section 34 of IPC. 3. According to the prosecution, the deceased Medisetti Sreenivasu is son of A-1 through his first wife Medisetti Satyanarayanamma, P.W. 1. The marriage between A-1 and P.W.1 took place about 20 years back and they were blessed with two children i.e. Rayudu Durgavathi and the deceased. The marital relationship of A-1 and P.W. 1 was broken down and they are living separately. After separation, A-l married A-4 and begot A-2, A-3 and another daughter. P.W. 1 after separation from A-1 was living with her children at her parents place Sehapuram village and she did not marry again. She raised disputed before P.Ws. 6 and 7 for share in the property and also for maintenance. The elders advised A-1 to give some land in lumpsum and take customary divorce. A-1 did not comply with the solution suggested by the elders. Thereafter P.W. 1 filed a maintenance case against A-1 and the Court ordered for payment of the maintenance and as A-1 did not pay the amount, he was imprisoned for a period of one year. After release from the jail, the dispute was raised before the elders P.Ws. 6 and 7 and the elders advised A-1 to pay Rs. 20,000/- towards full and final settlement of the maintenance claim. Accordingly, A-1 paid the amount to P.W. 1. After sometime, P.W. 1 and her both children i.e. the deceased and P.W. 2 were demanding A-1 to give some share in the landed property owned by him. They also approached the elder P.W. 8, requested to convince the accused to give some landed property to them, but A-1 did not agree for the same. On 25.11.2007 at about 5.00 p.m. P.Ws. 1, 2 and the deceased accompanied by P.W. 3 went to the house of the accused and demanded him to give some share in the landed property owned by A-1 and A-1 got angry and there was a scuffle took place between deceased and A-1 to A-3. On 25.11.2007 at about 5.00 p.m. P.Ws. 1, 2 and the deceased accompanied by P.W. 3 went to the house of the accused and demanded him to give some share in the landed property owned by A-1 and A-1 got angry and there was a scuffle took place between deceased and A-1 to A-3. A-1 to A-3 fell him down and A-1 picked up a crowbar and stabbed the deceased on his chest, right shoulder, left side of the chest and also on the right thigh. A-2 and A-3 held the deceased with their hands and facilitated A-1 to inflict stab injuries with the crowbar. When P.Ws. 1 and 2 intervened to rescue the deceased, the crowbar in the hands of A-1 slipped down. Then A-1 picked up an iron pipe and dealt a blow on the back side of the head and caused a bleeding injury. A-1 also threatened P.Ws. 1 to 3 that he would hack all of them into pieces, if they, do not take the injured from that place. P.W. 3 ran away out of fear. P.Ws. l and 2 attempted to shift the injured but he collapsed on the way and died at a distance of 100 feet from the house of A-1. A-2 and A-3 also threatened P.Ws. 1 to3 with iron rods in their hands. A-4 did not word off A-1 to A-3 when they are attacking the deceased with their weapons. On the oral statement given by P.W. l, P.W. 11 has recorded her statement and registered the case in Criminal No. 100 of 2007 under Section 302 read with Section 34 of IPC. Thereafter the investigation was taken up by P.W. 12 and conducted the scene of offence panchanama in the presence of P.W. 5 and another and seized the crime weapons, blood stained earth and controlled earth from the scene of offence and got the scene of offence photographed by P.W. 10 and also drawn rough sketch of the scene of offence. Thereafter, P.W. 12 held inquest over the dead body of the deceased in the presence of P.W. 8 and another and he examined P.Ws. 1 to 8 and others. The doctor, P.W. 9, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to shock as a result of heamorrhage due to the injuries on the vital organs. 1 to 8 and others. The doctor, P.W. 9, who conducted autopsy over the dead body of the deceased, opined that the deceased died due to shock as a result of heamorrhage due to the injuries on the vital organs. P.W. 12 arrested A-1 on 30.11.2007 at 8.00 p.m. while he was at Durgamma temple on the flood bank in Kulla village and interrogated him in the presence of P.W. 5 and another and he confessed about the commission of the offence and he disclosed that he thrown away his blood stained clothes into Godavari river and he has shown two iron pipes used in the commission of the offence and they were seized under cover of panchanama. On the same day at 11.30 p.m., P.W.12 proceeded to Anjaneyaswamy temple on the river bund at Kotipalli village and arrested A-2 to A-4 and after completion of the investigation he filed the charge-sheet against the accused. 4. The Sessions Judge has framed the charge under Section 302 read with Section 34 of IPC against all the accused and all the accused pleaded not guilty for the said charge. 5. The prosecution in order to establish the said charge examined P.Ws. 1 to 12 got marked Exs. P-1 to P-18 and M.Os. 1 to 7. No oral evidence was produced but Exs. D-1 to D-6 were marked on behalf of the accused in defence. 6. Taking into consideration of said oral and documentary evidence, the Sessions Judge found A-1 guilty for the offence under Section 302 of IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/- in default to undergo simple imprisonment for seven days. A-2 to A-4 are found not guilty and they are acquitted. 7. Aggrieved by the said conviction and sentence, the present appeal is filed by A-1 therein. 8. Now the point that arises for consideration is whether the prosecution could establish the charge under Section 302 of IPC against the appellant/A-1 beyond reasonable doubt? POINT: 9. The counsel appearing for the appellant has pleaded that the investigating officer has suppressed the first complaint given by P.W. l and brought into existence Ex. P-1 to suit the case of the prosecution. She further pleaded that P.Ws. POINT: 9. The counsel appearing for the appellant has pleaded that the investigating officer has suppressed the first complaint given by P.W. l and brought into existence Ex. P-1 to suit the case of the prosecution. She further pleaded that P.Ws. 1 and 2 admitted that P.W. l became unconscious immediately after the incident and she regained consciousness on the next day as such the question of recording her statement by P.W. 5 and on that information, P.W. 5 lodging the complaint is doubtful. She further pleaded that no blood stains were recovered from the place where the deceased sustained injuries but they were collected only from the place where the dead body was lying. She further pleaded that the deceased was attacking A-1 to A-3 on earlier occasion and A-1 never agreed to give any share in the property in view of the settlement arrived at between A-1 and P.Ws. 1, 2 and the deceased, document was executed in that regard. She further pleaded that the evidence of P.Ws. 1 to 3 is inconsistent with regard to the commission of the offence as such A-1 is entitled to be acquitted. 10. The Additional Public Prosecutor, on the other hand, has pleaded that the evidence of P.Ws. 1 to 3 clearly establishes the occurrence of the incident and the accused causing injuries to the deceased and P.W. 5 has lodged the complaint on the information furnished by P.Ws. 1 and 2 immediately after the occurrence and there is no reliable evidence to show that there is settlement between A-1 and P.Ws. 1, 2 and the deceased and even if the said settlement is there, it is only with regard to maintenance and not with regard to share in the property and the oral evidence of P.Ws. 1 to 3 with regard to the sustaining injuries is corroborating with the medical evidence of P.W. 9 and supported the conviction and sentence passed by the trial Court. 11. 1 to 3 with regard to the sustaining injuries is corroborating with the medical evidence of P.W. 9 and supported the conviction and sentence passed by the trial Court. 11. According to the prosecution, the deceased is the son of P.W.1 and P.W. l is the first wife of A-1 and their martial life was broken down and they are living separately and P.W. 1 has demanded for maintenance and A-1 did not agree to pay maintenance to her in spite of the advice made by the elders, as such she filed a case before the Court and obtained order for maintenance as he did not pay the maintenance he underwent imprisonment for one year and after release from the jail, the matter was placed before the elders and as per the advice of the elders, the claim for maintenance was settled for Rs. 20,000/- and accordingly A-1 paid the said amount of Rs. 20,000/- to P.W. l and thereafter P.W. 2 and deceased were started demanding for share in the property of A-1 for which he refused to give any share and the matter was placed before the elders. In spite of the advice of the elders, A-1 did not agree to give any share in the property. On 25.11.2007 when P.Ws. 1 to 3 and deceased went to the house of the accused to demand share in the property, A-1 to A-33 attacked them and made the deceased to fell down and A-1 picked up a crowbar and stabbed the deceased on the chest, right shoulder and also on the right thigh and A-2 and A-3 caught hold of the deceased and facilitated A-1 to cause stab injury with the crowbar. When P.Ws. 1 and 2 tried to rescue the deceased, the crowbar in the hands of A-1 has fell down and he took up an iron rod and hit on the back side of the head of the deceased. When P.Ws. l and 2 tried to shift the deceased, he died at a distance of 100 feet from the scene of offence. 12. Thus, according to the prosecution, P.Ws. 1 to 3 went to the house of the accused on 25.11.2007 at 5.00 p.m. for demanding a share in the landed property owned by A-1. When P.Ws. l and 2 tried to shift the deceased, he died at a distance of 100 feet from the scene of offence. 12. Thus, according to the prosecution, P.Ws. 1 to 3 went to the house of the accused on 25.11.2007 at 5.00 p.m. for demanding a share in the landed property owned by A-1. Admittedly, prior to the said incident, there was a demand by P.W. 1 for maintenance and A-1 has refused to pay the maintenance and subsequently she filed a case and obtained an order and as he has failed to pay the said amount, he underwent imprisonment for one year and after release from the jail, the matter was settled at Rs. 20,000/- and A-1 has paid the said amount to P.W. 1. The said factum of settlement of issue of maintenance was admitted by P.W. l in the cross-examination. She denied about executing of document at the time of said settlement relinquishing all the rights in the property of A-1. 13. P.W. 2, who is the daughter of P.W. l, admitted about the demand of Rs. 20,000/- towards maintenance claim of P.W. 1 but she also denied that at the time of receiving Rs. 20,000/- they relinquished their rights in the immovable properties and accordingly executed a document. 14. P.Ws. 6 and 7 are said to be the mediators for the claim for maintenance. P.W. 6 has stated that P.W. 1 made a demand for maintenance from A-1 and the matter was placed before them and they advised to give Rs. 5,000/- to P.W. 1 and obtain divorce but A-1 and P.W. 1 did not turn up later. Subsequently, P.W. 1 filed a maintenance case against A-1. P.W. 7 has also stated about P.W. l filing a maintenance case and in that connection A-1 going to the jail for a period of one year and about seven or eight years prior to the occurrence he has participated in the settlement that was taken place between P.W. l and A-1 and A-1 paid Rs. 20,000/- for withdrawing the maintenance case. In the cross-examination he admitted that at the time of settlement a compromise was reduced into writing and Ex.D-5 is the compromise deed and he attested Ex.D-5. Ex.D-5 contains the signatures of P.W. 1, A-1 and the deceased. 20,000/- for withdrawing the maintenance case. In the cross-examination he admitted that at the time of settlement a compromise was reduced into writing and Ex.D-5 is the compromise deed and he attested Ex.D-5. Ex.D-5 contains the signatures of P.W. 1, A-1 and the deceased. By the time of settlement, P.W. 1 and the deceased agreed to relinquish their rights over the properties of A-1. 15. Therefore, from the above evidence, the prosecution could establish that the dispute with regard to the claim of maintenance of P.W. l against A-1 was settled for Rs. 20,000/- and even though P.W. 7 has stated that a document Ex.D-5 agreement was executed at the time of settlement relinquishing the rights in the properties of A-1 by P.W. 1 and the deceased, P.W. 1 has denied the same. 16. Therefore, there is a dispute between the deceased, P.W. 1 and the accused with regard to the share in the property and according to the prosecution, on 25.11.2007 P.Ws. 1, 2 and the deceased along with P.W. 3 went to the house of the accused for demanding a share in the property. 17. P.W. 1, the mother of the deceased and first wife of A-1, has stated that on 25.11.2007 at 5.00 p.m., herself, her deceased son, her daughter P.W. 2 and P.W. 3 went to Kulla village to the house of A-1. Herself and her daughter went to that village in an auto and her deceased and his friend came on motorcycle. By the time they reached the house of A-1, A-1 to A-4 were present in front of their house and A-2 to A-4 thrown herself and her son in front yard of their house and they woke up. A-2 and A-3 caught hold of both shoulders of deceased and then A-1 stabbed the deceased with crowbar on the right side chest, on right thigh and on the left shoulder of the deceased. When herself and her daughter tried to intervene, the said crowbar has slipped from the hands of A-1 the A-1 took out a big iron rod, hit on the head of the deceased and A-2 also hit with a small iron rod, A-3 by taking iron rod from the hands of A-1, hit on the head of the deceased. The deceased sustained bleeding injuries and fell down. The deceased sustained bleeding injuries and fell down. Then A-4 brought stick and hit her daughter and herself and A-1 asked her to take away her son, if they are present they will kill them. Hence herself and her daughter have taken away her son with injuries and while they were taking him near the house of Kota Bhaskara Rao, her son died. They reported the same to VRO of that village. On the next day police came to Kulla village where the dead body was kept and A-1's house is surrounded by a compound wall to a height of 3 feet and one cannot view what was happening in front of the house from outside the compound wall and witness again says it is visible to view from outside the compound wall what is happening in front yard of the house of A-1. She identified M.O. 1 as the pant and M.O.2 as shirt of the deceased. M.O.3 is the crowbar used by A-1 for stabbing the deceased. A-1 used M.O. 4 iron rod for beating the deceased and A-2 used M.O. 5 small iron rod for beating the deceased. In the cross-examination she admitted that they demanded the land, which is owned by the father of A-1. She admitted that her father-in-law settled Ac.1-20 cents of land in favour of A-2 and A-3 and again says her father-in-law did not settle the land. She admitted that once her son brought the paddy of that Ac.1-20 cents of land and A-1 has reported against the deceased on 17.4.2007. She denied the suggestion that five days prior to the marriage of A-2, the deceased threatened the accused to settle the matter, otherwise he will stop the marriage of A-2, as such A-1 reported the matter to police on 22.11.2007 against the deceased and as the deceased went to the house of A-1 and tried to attack on A-2 to A-4. She further admitted that the incident has taken place for ten minutes and after ten minutes of the incident, the VRO came to the scene, obtained her thumb impression after recording her statement and she further stated that she does not remember whether she signed or not as she lost conscious and she does not know whether the police came or not and she regained conscious on the next day at about 10.00 a.m. she was examined by the police, from there she went to Ramachandrapuram. The accused was taken into custody by the police. The accused were arrested on the next day of the occurrence. Blood oozed from the injuries of the deceased at the place of the occurrence and her clothes and the clothes of her daughter were stained with blood. Police did not seize their clothes. She sustained simple injuries but she did not take any treatment. She admitted that A-4 reported a crime against herself and her daughter about the theft of she-buffaloes and police arrested them and released on bail. 18. P.W. 2, who is the daughter of P.W. 1 and A-1 and the sister of the deceased, has also stated that on 25.11.2007, A-1 called the deceased to come to him and deceased stated to her that A-1 decided to give Ac.0-30 cents of land to them and on that deceased took P.W. 1, herself and P.W. 3 to the house of A-1 at about 5.00 p.m. By the time they reached the house of A-1, A-1 to A-4 were present near the grill i.e. front yard and P.W. 1 and deceased went into the house of A-1 and A-1 to A-4 pushed P.W. l and deceased, and deceased woke up and then A-2 and A-3 caught hold of the deceased both hands and the A-1 brought a crowbar and stabbed the deceased with crowbar on chest, right shoulder, left shoulder and on right thigh of the deceased. When herself and P.W. l tried to interfere, the crowbar slipped from the hands of A-1 and then he took a big iron rod from the scene of offence and hit on the deceased on the right side of the head. A-2 took the iron rod from the hands of A-1 and A-3 brought another iron rod and A-2 and A-3 beat with those iron rods on the right side of the head of the deceased. A-2 took the iron rod from the hands of A-1 and A-3 brought another iron rod and A-2 and A-3 beat with those iron rods on the right side of the head of the deceased. A-4 beat P.W. 1 and herself with the stick. Then A-1 brought knife and threatened them to kill if they stayed there, then they dragged her deceased brother while he was alive till the house of Kota Bhaskara Rao and there her deceased brother died. V.R.O. came there and recorded her statement. On the next day she was examined by the police. She also identified M.Os. 1 to 5. In the cross-examination she admitted that immediately after the occurrence, P.W. 1 lost conscious and she regained consciousness on the next day. At about 8.00 p.m. on the date of occurrence two constables came to the place where dead body of the deceased was kept. She admitted that immediately after the occurrence they informed the same to the VRO. Her signature was not obtained by the VRO and she orally informed the incident to VRO and on the next day at about 11.00 a.m. she was examined by the police at the house of A-1. Blood of the deceased fallen in front of the house of A-1 and the front yard is gravel floor. She denied the suggestion that prior to the marriage of A-2, they threatened them to settle the issue otherwise they will stop the marriage of A-2. She admitted that A-1 was in jail for one year for non-payment of maintenance. She admitted that A-1 was in jail for one year for non-payment of maintenance. She denied the suggestion that in the mediation they have received Rs. 20,000/- by relinquishing rights over immovable properties and she adds that they agreed to receive Rs. 20,000/- from A-1 besides share in immovable properties and accordingly document was executed. She denied that P.W. l and herself committed the theft of she-buffaloes of A-4 worth Rs. 60,000/- and A-4 reported against them and accordingly they were arrested and released them on bail. 19. Therefore, according to P.W. 1, they have gone to the house of A-1 on 25.11.2007 along with P.Ws. 2 and 3 and the deceased for demanding a share in the landed properties of A-1. 60,000/- and A-4 reported against them and accordingly they were arrested and released them on bail. 19. Therefore, according to P.W. 1, they have gone to the house of A-1 on 25.11.2007 along with P.Ws. 2 and 3 and the deceased for demanding a share in the landed properties of A-1. But according to P.W. 2, the deceased has informed that A-1 agreed to give Ac.0-30 cents of land and in that regard he asked them and took them to the house of A-1. 20. P.W. 3, who is the friend of the deceased, has also supported the version of P.W.2 with regard to A-1 promising to give a share in Ac.0-30 cents of land and according to him, the deceased requested him to accompany him as A-1 promised to execute a document in favour of the deceased. As such, he accompanied the deceased to the house of A-1. Therefore, the evidence of P.Ws. 1, 2 and 3 is contradictory with regard to the purpose of the visit of P.Ws. 1 to 3 and the deceased to the house of A-1 on 25.11.2007. Even though P.W. 1 has denied about the execution of the document at the time of settlement of maintenance amount of Rs. 20,000/- P.W.2 admitted the same but she denied about their relinquishing their right in the properties of A-1. 21. P.W. 7, who is the attestor of the said document Ex.D-5, has categorically stated about P.W. l, deceased and A-1 signing on the document Ex.D-5 agreeing to relinquish their share in the landed property of A-1. Ex.D-5 is a compromise deed dated 16.11.2002. In that they have settled their disputes for Rs. 20,000/- with regard to maintenance and it was also mentioned that there are no hereditary rights on each other from that day onwards and the said document was signed by A-1, P.W. 1 and the deceased. 22. The mediator, P.W. 8, who has held a mediation between P.W. 1, the deceased and A-1 with regard to the share in the property and they advised A-1 to give Ac.0-50 cents of land but A-1 refused to give the said land and they even advised to give Ac.0-30 cents of land as he is having Ac.1-20 cents of land, for which also A-1 and A-2 refused. 23. 23. Therefore, the question of A-1 agreeing to give Ac.0-30 cents of land and agreeing to execute a document in favour of the deceased as stated by P.Ws. 2 and 3 cannot be believed. As admitted by P.W. 1, earlier the deceased has taken away the paddy from Ac.1-20 cents of land owned by A-1 and A-1 has lodged a complaint against the deceased, subsequently also deceased attempted to attack on A-2 to A-4 and a complaint was lodged by them against the deceased and A-4 has lodged a complaint against P.Ws. 1 and 2 alleging committing the theft of she-buffaloes belongs to them. Therefore, there are disputes between P.Ws. 1, 2 and the deceased on one hand and A-1 to A-4 on the other hand. Therefore, their going to the house of A-1 on 25.11.2007 for receiving Ac.0-30 cents of land as stated by P.Ws. 2 and 3 cannot be believed and as already observed above that there is a contradiction with regard to the said aspect in the evidence of P.W. 1 on one hand and the evidence of P.Ws. 2 and 3 on the other hand. 24. With regard to the occurrence of the incident, P.Ws. 1 to 3 have specifically stated that A-2 and A-3 caught hold of the shoulders of the deceased and A-2 stabbed the deceased with a crowbar on the right side of the chest and right side thigh and also on the left shoulder and when P.Ws. 1 and 2 intervened, the crowbar in the hands of A-1 fell down and A-1 took out a big iron rod and hit on the head of the deceased and A-2 and A-3 also took out the iron rods and hit on the head of the deceased. But the said fact was not mentioned in Ex.P-1, the complaint, lodged by P.W. 5. Moreover, the investigating officer, P.W. 12 after the arrest of the accused, has recovered two iron road at his instance from his house but only one iron rod was sent to the FSL and the said iron rod does not contain any blood stains. 25. According to P.Ws. 1 and 2, after the occurrence of the incident, VRO came to the scene of offence and P.W. 1 narrated the incident to the VRO and he recorded the said statement and obtained her thumb impression. 25. According to P.Ws. 1 and 2, after the occurrence of the incident, VRO came to the scene of offence and P.W. 1 narrated the incident to the VRO and he recorded the said statement and obtained her thumb impression. But according to P.W. 5, the VRO, on 25.11.2007 at 6.00 p.m. when he was in the panchayat office, P.W. 1 and another came to the panchayat office and reported that A-1 and his sons murdered the deceased by stabbing him and he identified P.Ws. 1 and 2 as the persons reported to him and on receiving the information he prepared Ex.P-6 report and sent Ex.P-6 report through the village servant to the Pamarru police station and according to him, at 11.00 p.m. on that night, the Inspector of police reached Kulla village and he was examined by the Inspector. Ex.P-6, which is the complaint lodged by P.W. 5, shows that it is a statement of P.W. 1 recorded by him and finally it was mentioned that P.W. 1 requested to take action against A-1, his second wife and his two sons. Therefore, Ex.P-6 is a statement of P.W. 1 but her signature was not obtained therein. Whereas, P.W. 1 has stated that the VRO obtained her thumb impression on the said statement recorded by him. P.W. 5 in the cross-examination has admitted that even though P.W. 1 reported to him, he did not obtain her signature. He further admitted that in general they used to obtain the signature of the complainant on the report and he has to send the complaint along with his report. He further stated that as P.W. 1 was present there, he did not obtain the signature of P.W. 2. Therefore, P.W. 5 has categorically admitted that he used to obtain the signature on the statement recorded by him and send the same along with his report. In the present case, he has not obtained the signature or thumb impression of P.W. 1 and no reasons were stated for not obtaining the thumb impression or signature of P.W. 1. On the other hand, P.W. 1 has stated that the VRO came to the scene of offence within ten minutes and obtained her thumb impression after recording her statement and the said factum of P.W. 5 visiting the scene of offence was also confirmed by P.W. 2. On the other hand, P.W. 1 has stated that the VRO came to the scene of offence within ten minutes and obtained her thumb impression after recording her statement and the said factum of P.W. 5 visiting the scene of offence was also confirmed by P.W. 2. But P.W. 5 has not supported the same and according to him, P.Ws. 1 and 2 came to him when he was in the panchayat office. Moreover, P.W. 1 in her cross-examination has admitted that she lost consciousness and as such she does not know whether the police came to the village or not and according to her, she regained consciousness on the next day and the said fact was also confirmed by P.W. 2, who is her daughter, in the cross-examination and she has categorically stated that immediately after the occurrence, P.W. 1 lost consciousness and she regained consciousness on the next day. When P.W. 1 became unconscious immediately after the occurrence, her giving statement to P.W. 5 and his recording the said statement is doubtful. Moreover, even though Ex.P-6 is a statement of P.W. 1, P.W. 1's signature was not obtained by VRO. Moreover, the place of recording of the statement is also contrary to the evidence of P.Ws. 1 and 2. 26. Therefore, from the above circumstances, the contention of the appellant's counsel that the original complaint-statement recorded by P.W. 5 from P.W. 1 was suppressed and subsequently Ex.P-6 was brought into existence to suit the case of the prosecution has to be believed. 27. The investigating officer, P.W. 12, visited the scene of offence on the next day at 6.00 a.m. and conducted the scene of offence panchanama and drawn rough sketch in the presence of P.W. 5. In the cross-examination he admitted that he did not find any blood marks in between the scene of offence and the place where the deceased was taken at the first instance and to the place where the dead body was kept. He collected M.Os. 6 and 7 along with gravel stones. He has only collected blood stains from the scene of offence and not from the other places i.e. cement pole and the place where the dead body of the deceased was found. 28. He collected M.Os. 6 and 7 along with gravel stones. He has only collected blood stains from the scene of offence and not from the other places i.e. cement pole and the place where the dead body of the deceased was found. 28. P.W. 5 who is the mediator for the scene of offence admitted in the cross-examination that it is mentioned in Ex.P-7 observation report that blood stains were found at a distance of 32 feet from electric cement pole on the road and from there also blood stained earth and controlled earth were seized and he further stated that the controlled earth and blood stained earth were seized from the place where the dead body was lying. Therefore, with regard to the seizure of the blood stained and controlled earth from the scene of offence or from the place where the dead body was lying is contrary to the evidence of P.W. 12, the investigating officer, with that of the mediator, P.W. 5. Therefore, there is a discrepancy with regard to the recovery of M.Os. 6 and 7 from the scene of offence. 29. It is the specific case of the prosecution that when the deceased, P.Ws. 1 and 2 have gone to the house of A-1, A-1 to A-4 thrown them and the deceased fell down and A-1 took out a crowbar and stabbed the deceased on his chest, right shoulder, left side of the chest and also on the right thigh and, A-2 and A-3 held the deceased with hands and facilitated A-1 to inflict stab injuries with the crowbar. It is the evidence of P.Ws. l to 3 also that A-2 and A-3 caught hold of the hands of the deceased to back side and A-1 stabbed the deceased with a crowbar. It is also their case that when P.Ws. 1 and 2 tried to intervene, the crowbar in the hands of A-1 slipped down and A-1 picked up an iron pipe and dealt a blow on the back side of the head and caused bleeding injury and A-2 and A-3 also picked up an iron road and beat on the head of the deceased and A-3 took out the iron rod from the hands of A-1 and beat him on the head of the deceased. But the trial Court has acquitted A-2 and A-3 as the said alleged overt acts were not mentioned in the FIR, even though the evidence of P.Ws. 1 to 3 establishes the same. Moreover, the doctor, P.W. 9, who conducted autopsy over the dead body of the deceased in his cross-examination admitted that on the head of the deceased only one single injury is found and the head injury is exactly on the top of head towards right side. As per the evidence of P.Ws. 1 to 3, first A-1 took out an iron rod and hit on the head of the deceased, A-2 and A-3 beat on his head with iron rods but only one injury is found on the head of the deceased. Thus, it is doubtful as to who caused the said injury on the head of the deceased. In any case, the said head injury is not a fatal injury as per the evidence of P.W. 9. When the alleged overt acts attributed against A-2 and A-3 by which they facilitated A-1 to cause the injuries, is disbelieved and A-2 and A-3 are acquitted, A-1 is also entitled to the benefit of doubt. 30. In view of the above discussion, the prosecution has failed to establish the charge under Section 302 of IPC against A-1 and he is entitled to the benefit of doubt. Thus, the findings recorded by the trial Court in convicting A-1 are liable to be set aside. 31. In the result, the Criminal Appeal is allowed. The conviction and sentence passed in S.C. No. 185 of 2008 by the VI Additional Sessions Judge (Fast Track Court), East Godavari District at Rajahmundry on 29.12.2008, for the offence punishable under Section 302 of IPC against the appellant/A-1, is hereby set aside. The appellant/A-1 shall be set at liberty, if he is not required in any other case.