JUDGMENT (Per Hon’ble Sri Justice C.Praveen Kumar) Heard Sri. Chandra Sekhar Ilapakurti, learned Counsel appearing for the Appellant and Sri. S. Dushyanth Reddy, Additional Public Prosecutor, through Blue Jeans video conferencing APP and with their consent, the appeal is disposed of. 1. Accused No. 1 to 4 were charged for the offence punishable under Sections 302 read with 34 of Indian Penal Code, 1860 [‘I.P.C.’] for causing the death of one Marri Veeranarayana [‘Deceased’] on 08.06.2011 at about 12.30 a.m. By its Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012, the III Additional Sessions Judge, Guntur, while acquitting Accused No. 3 and 4 for the offence punishable under Section 302 read with 34 I.P.C., convicted Accused No. 1 for the offence punishable under Section 302 I.P.C., and sentenced him to suffer imprisonment for life and to pay fine of Rs.1,000/-. The case against Accused No. 2 was abated as he died on 18.06.2013. 2. The facts disclose as under: a) PW1 is the father of the deceased, while PW2 is the mother. PW8 is the wife of the deceased. There were disputes between the deceased and A1 and A2 with regard to accused playing songs loudly in their auto. A quarrel ensued on 01.01.2011, in which the accused and the deceased received injuries. Accordingly, the deceased was admitted in N.R.I. Hospital, but, however, no case was filed in respect of the said incident. Keeping in view the above incident, it is said that the accused hatched a plan to do away with the deceased. It is further stated that, in the month of April, 2011, the deceased along with his friends quarrelled with A4 at Surya Wines, Chinakakani, in which A4 received injuries. b) On 08.06.2011 at about 10.00 P.M., PW1 and PW2 came to know that a quarrel was going on between A1, A2 and the deceased at a wine shop. At about 11.30 P.M., PW1 and PW2 came on to the main road in search of their son and waited near the Arch for half-an-hour. It is said that at 12.30 midnight, the deceased went to the cool drink shop of PW7, consumed cool drink and left on his motorbike. At that time, PW7 claims to have noticed an auto standing by the side of his shop in which A1, A2 and A4 were present. The said auto followed the deceased. It is said that at 12.30 midnight, the deceased went to the cool drink shop of PW7, consumed cool drink and left on his motorbike. At that time, PW7 claims to have noticed an auto standing by the side of his shop in which A1, A2 and A4 were present. The said auto followed the deceased. c) The deceased came on his motorcycle from the petrol bunk side and after moving ahead near the crossing of NH5, an auto came from Vijayawada side and dashed the motorcycle on which the deceased was going to his village. As a result of the impact, the deceased fell down on the road. Thereafter, A1, A2 and another person came out of the auto. A1 beat the deceased with a cement stone, while A2 and another person held the hands and legs of the deceased. A3 also got down from the auto along with A1 and A2. It is said that PW1 and PW2 went to the rescue of their son, but the three accused threatened them. At that time, one Thiruveedhula Naga Bhuyshanam [NE] and Kuraganti Rambabu [PW6] came to the scene. Two more persons, who are coming from Vijayawada side also came there on hearing cries of PW1 and PW2. On seeing them, A1 to A3 ran away by taking cement stone, leaving the auto at the scene. PW1 and PW2 rushed towards their son, who was lying on the road and within five minutes he died. Thereafter, the relatives of PW1 and PW2 came there and PW1 along with them went to the police station and lodged a report with PW16 -Sub-Inspector of Police, who registered a case in Crime No. 76 of 2011 for the offence punishable under Section 302 read with 34 I.P.C. Ex.P11 is the First Information Report. Further investigation, in this case, was taken up by PW17, who on receipt of the F.I.R. at 3.00 A.M., visited Mangalagiri Rural Police Station, obtained a copy of the First Information Report and took up investigation. d) PW17 along with PW16 proceeded to the scene of offence, which is in-front of Raj Kamal Agro Model Farm at Chinakakani Village. He noticed the dead body lying on the divider. A motorcycle and an auto were present near the dead body. PW17 examined PW1 and PW2 and recorded their statements. d) PW17 along with PW16 proceeded to the scene of offence, which is in-front of Raj Kamal Agro Model Farm at Chinakakani Village. He noticed the dead body lying on the divider. A motorcycle and an auto were present near the dead body. PW17 examined PW1 and PW2 and recorded their statements. After moving in and around Chinakakani and Kaza villages to enquire about the culprits, he returned back to the scene at 6.30 A.M. and in the presence of PW13, inspected the scene of offence. During observation, he seized blood stained earth and controlled earth and the auto of accused. M.O. 2 to M.O. 5 are the articles seized at the scene. Ex.P5 is the observation report and Ex.P12 is the rough sketch of the scene. He also got photographed the scene, which are placed on record as Ex.P13. Thereafter, in the presence of PW13, he conducted inquest over the dead body under Ex.P6. During inquest, he examined PW8 and others and recorded their statements, and also seized M.O.6 to M.O.8. Thereafter, the dead body was sent for post-mortem examination. e) PW14 - the Civil Assistant Surgeon, in Government General Hospital, Mangalagiri, conducted autopsy over the dead body and issued Ex.P7 post-mortem report. He noticed about 11 injuries on the body of the deceased and the skull was open. According to him, the cause of death might have been due to head injury with contusion of brain and large hemotoma. f) PW17 who continued with the investigation arrested the accused on 27.06.2011 in the presence of PW15 and others. He interrogated the accused separately and recorded their confessions. Basing on the confession made by A1, they reached the compound of Raj Kamal Agro Model Farms and a blood stained concrete stone is said to have been discovered. M.O.1 is the cement stone. The same was seized under Ex.P9 [Mahazar]. After collecting all the necessary documents, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 33 of 2011 on the file of Additional Judicial Magistrate of First Class, Mangalagiri. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. The same was seized under Ex.P9 [Mahazar]. After collecting all the necessary documents, a charge-sheet came to be filed, which was taken on file as P.R.C. No. 33 of 2011 on the file of Additional Judicial Magistrate of First Class, Mangalagiri. 3. On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the matter was committed to the Sessions Court under Section 209 Cr.P.C. Basing on the material available on record, charges as referred to above came to be framed, read over and explained to the accused, to which, the accused pleaded not guilty and claimed to be tried. 4. In support of its case, the prosecution examined PW1 to PW17 and got marked Ex.P1 to Ex.P13, beside marking MOs. 1 to 8. Out of 17 witnesses examined by the prosecution, PW3, PW5 and PW9 did not support the prosecution case and they were treated hostile by the prosecution. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but, however, did not adduce any evidence in support of their defence. 5. Relying upon the evidence of PW1 and PW2, coupled with the enmity between the accused and the deceased, the learned Sessions Judge convicted A1. Challenging the same, the present appeal came to be filed. 6. Sri. Chandra Sekhar Ilapakurti, learned counsel appearing for the appellant submits that there is any amount of doubt with regard to PW1 and PW2 witnessing the incident. He further submits that Ex.P1, which is said to have been lodged by PW1 is bereft of details, which are now mentioned by PW1 while giving evidence in court. Apart from that, when the quarrel was at the wine shop, there was no necessity for PW1 and PW2 to stay at the arch awaiting for the arrival of the deceased. (ii) The learned counsel further submits that PW1 and PW2 claims to have witnessed the incident under the illumination of lights, but, the mediator report and scene of offence does not anywhere indicate existence of any lights at the scene. Since, the incident took place in the dead of night, possibility of they identifying the appellant, even assuming to be present, at the scene, is highly doubtful. Since, the incident took place in the dead of night, possibility of they identifying the appellant, even assuming to be present, at the scene, is highly doubtful. He further submits that the medical evidence is contrary to ocular evidence, and, as such, there is any amount of doubt with regard to the timing of the incident. Apart from that, the learned counsel would contend that when the evidence of PW7 is to the effect that the accused took cool drink at his shop at 12.30 midnight, possibility of the incident happening prior to that time is impossible, more so, having regard to the contents of the stomach, as spoken to by the post-mortem doctor. Further, the weapon, which is alleged to have been used, is a cement stone, which could not have carried with them by the accused, leaving the auto. Hence, the recovery of M.O.1 -cement stone at the instance of the accused is doubtful, more so, when there is a contra version from other prosecution witnesses. 7. The same is opposed by the learned Public Prosecutor contending that the evidence of PW1 and PW2 who are the eye witnesses to the incident cannot be disbelieved, merely because Ex.P1 is silent on some aspects. In other words, his argument appears to be that, the First Information Report is not a encyclopaedia, which should contain all the details. (ii) Coming to the presence of PW1 and PW2 and they witnessing the incident, the learned Additional Public Prosecutor would submit that they being known to the A1 and A2 even prior to the incident, identifying them in the night cannot be said to be improbable. The discrepancies, if any, pointed out with regard to the timing of the incident are trivial in nature, which do not warrant disbelieving the prosecution story. According to him, the conviction and sentence imposed by the trial court warrants no interference. 8. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt? 9. In order to appreciate the rival contentions, it is just and proper to refer to the evidence of some of the prosecution witnesses. 10. PW1 in his evidence-in-chief deposed that, on the date of incident, at about 10.00 P.M., he came to know that A1 and A2 quarrelled with his son [deceased] at a wine shop. 9. In order to appreciate the rival contentions, it is just and proper to refer to the evidence of some of the prosecution witnesses. 10. PW1 in his evidence-in-chief deposed that, on the date of incident, at about 10.00 P.M., he came to know that A1 and A2 quarrelled with his son [deceased] at a wine shop. At about 11.30 P.M., PW1 and PW2 came on to the main road in search of their son [deceased]; reached near an arch on the main road and waited there for half-an-hour. At that time, their son [deceased] came on a motorcycle from petrol bunk side and after the crossing on NH5, an auto came from the opposite side and dashed the motorcycle, as a result of which, the deceased fell down on the road. Then, A1, A2 and another person got down from the auto. A1 is said to have beat the deceased with a cement stone [M.O.1], while A2 and another person caught hold of the hands and legs of the deceased. According to the prosecution, the incident took place because of earlier disputes between both the groups, in which the deceased as well the accused received injuries and were admitted in N.R.I. Hospital. 11. At this stage, it would be appropriate to refer to the crossexamination of PW1, which is as under: “It is true in Ex.P1 name of A3 is not given. It is true I did not give the name of A3 before police and also I have not given the description of third person who came along with A1 and A2 in auto in Ex.P1 and also to police. It is true I did not mention in Ex.P1 that I can identify the 3rd person and no test of identification parade is conducted in respect of 3rd person. Ex.P1 was written by a constable. It is true I have not mentioned in Ex.P1 that there are lights on either side of the road and I saw the incident in a illumination of lights and I have not stated same to police. It is true I have not mentioned in Ex.P1 that immediately after the incident my relatives came to the scene of offence and I went along with them to the police station and I have not stated the same before the police. I cannot give the number of auto and motor cycle i.e., MO2 and 3. It is true I have not mentioned in Ex.P1 that immediately after the incident my relatives came to the scene of offence and I went along with them to the police station and I have not stated the same before the police. I cannot give the number of auto and motor cycle i.e., MO2 and 3. It is not true to suggest that the cement stone which I stated is not MO1. It is true I have not mentioned in Ex.P1 that I was standing along with LW2 and after 5 minutes I went to the place where my deceased son was lying on the road margin. It is not true to suggest that I did not refer the weapon of offence as cement stone in Ex.P1. It is true that I did not mention the names of LW5 and LW6 and I did not state the names of LW5 and 6 before the police. It is true I did not mention the names of other witnesses in Ex.P1. It is true that I did not state in Ex.P1 that I and LW2 reached near the Arch on the main road and waited for half-an-hour. It is true I did not mention in Ex.P1 report that deceased came on motor cycle from the side of petrol bunk. It is not true to suggest that specifically I did not state in Ex.P1 that the deceased was coming from Guntur side and the auto is coming from Vijayawada side.” 12. From the above admissions, it is very much clear that Ex.P1 is silent on many crucial aspects. Not only with regard to the name but also participation of one of the assailant; witnessing the incident in the illumination of street lights; PW1 and PW2 proceeding near to the arch and waiting there for half- an-hour; and the deceased coming on a motorcycle from the petrol bunk side. 13. PW2 is the mother of the deceased, whose evidence though toes in line with the evidence of PW1, also states that she saw the incident in the illumination of lights situated on either side of the road. But in the cross-examination, she admits that, she did not state to police that she saw the incident in the illumination of lights and that she did not state to police that she and PW1 went to the arch on the main road. But in the cross-examination, she admits that, she did not state to police that she saw the incident in the illumination of lights and that she did not state to police that she and PW1 went to the arch on the main road. It would be appropriate to extract the relevant portion from the cross- examination of PW2. “It is true I did not state to the Police that I and PW1 went near the Arch on main road. It is true I did not state to the Police that I saw the incident in illumination of lights.” 14. From the evidence of these two witnesses, it is very clear that her version in examination-in-chief, namely, that on receiving information about a quarrel between the accused and deceased near wine shop, proceeded towards arch and waited there for half-an-hour are missing not only in the First Information Report given by PW1 but also in the earlier statement recorded by the police during the course of investigation. Therefore, the version of PW1 and PW2 that they saw the incident while standing at the arch, has to be viewed with suspicion. 15. The prosecution tried to rely on the evidence of PW4 to show that PW1 and PW2 were present at the scene. A perusal of the evidence of PW4 would show that on 08.06.2011 at about 12.30 A.M., while he was proceeding to Chinakakani from Guntur, he found the deceased lying on the middle of the highway and PW1 and PW2 present by deceased side. He also observed a blood stained cement stone lying beside the deceased, a motorbike and an auto at that place. A reading of the evidence of PW4 shows as if M.O.1-cement stone alleged to have been used by A1 was present by the side of the deceased, which is contrary to the evidence of PW1, who in his evidence deposed stating that A1 carried away M.O.1 cement stone along with him. Further, his evidence does not indicate PW1 and PW2 being present at the time of attack. 16. PW6 is a resident of Kaza Village, who in his evidence deposed that, he knows PW5 and about one and half year ago he and PW5 went to Vijayawada on a motorcycle to purchase chill seeds and stayed at Mangalagiri for about one and half hour. When PW6 and PW5 reached the road near Chinakakani, they heard cries. 16. PW6 is a resident of Kaza Village, who in his evidence deposed that, he knows PW5 and about one and half year ago he and PW5 went to Vijayawada on a motorcycle to purchase chill seeds and stayed at Mangalagiri for about one and half hour. When PW6 and PW5 reached the road near Chinakakani, they heard cries. PW6 went there and saw A1 and A2 hitting the deceased with a stone. He identifies A1 as Balaji and A4 as Nagaraju [incorrect]. But, however, he moves closely to the place where they are standing and identifies A1, A2 and third person as A3. He in his evidence deposed that when he and PW5 tried to rescue the deceased, A1 to A3 threatened them. He also speaks about the presence of PW1 and PW2. 17. In the cross-examination, PW6 categorically admits that 108 ambulance came to the scene of offence to a call made by somebody and the persons who came with the ambulance declared the deceased dead. But, one fact that is to be noted here is that, neither PW1 nor PW2 deposed about the coming of ambulance to the scene. Further, PW6 admits that a panchayat was held relating to a theft of a motor-pump, in which elders made him to pay Rs.10,000/- to one Balineni Bhaskara Rao. He further admits that the Sub-Inspector of Police examined him at the scene of offence on the next day morning at 11.30 A.M. 18. The evidence of this witness has to be viewed with suspicion; firstly, for the reason that the village panchayat found him guilty of committing theft of a motor-pump and he was asked to pay Rs.10,000/- to one Balineni Bhaskara Rao; secondly, he claims to have gone to Vijayawada to purchase chilli seeds and after reaching Mangalagiri, he and PW5 waited for one and half hour and during that period PW6 claims to have seen the incident. But, PW5 did not support the version of PW6 with regard to witnessing the incident. On the other hand, his version is that by the time they reached Mangalagiri, they only noticed the dead body of the deceased lying on the road. 19. One another fact, which requires to be noted here is that the evidence of PW6 is silent with regard to the illumination of lights on either side of the road. On the other hand, his version is that by the time they reached Mangalagiri, they only noticed the dead body of the deceased lying on the road. 19. One another fact, which requires to be noted here is that the evidence of PW6 is silent with regard to the illumination of lights on either side of the road. Being a stranger, he could have identified the accused in the darkness, more so, in the court, when no test identification parade was held. Therefore, PW6 cannot be said to be a wholly reliable witness, having regard to the contents of Ex.P1 and the evidence of PW1 and PW2, which we have referred to earlier. 20. Coming to the evidence of PW7, he in his evidence deposed that, at about 12.30 midnight the deceased came to his cool drink shop, consumed cool drink and left on his motorbike. He claims to have seen an auto standing by the side of his shop with A1, A2 and A4 in it, which followed the accused. After sometime, he heard a big noise from the arch side and when he went to the place, noticed PW1 and PW2 present and A1 hitting the deceased with a stone while A2 was present with A1. He claims to have gone to the rescue of the deceased, but A1 threatened to kill him also. After sometime, two people from Kaza Village came to the scene who also tried to rescue the deceased. However, on seeing the people gathered at the scene, the accused ran away. 21. The evidence of PW7 assumes great significance as the learned Public Prosecutor relied upon his evidence to corroborate the version of PW1 and PW2. PW7 in his cross- examination admits that there was a faction in his village and his father contested for the post of President of the village, lost the election and settled in Chinakakani village. He further admits that the arch where the incident took place is situated at a distance of half a kilometre from the petrol bunk, which is situated towards Guntur side. It would be appropriate to extract the same, which is as under: “My native place is Neerukoknda Village. It is a faction village. My father contested as President of our village and he lost the election. It is true, due to faction in our village I left the village and settled at Chinakakani village. It would be appropriate to extract the same, which is as under: “My native place is Neerukoknda Village. It is a faction village. My father contested as President of our village and he lost the election. It is true, due to faction in our village I left the village and settled at Chinakakani village. It is true the petrol bunk is situated towards Guntur City side. It is true the Arch is situated half kilometre from the petrol bunk.” 22. From the evidence of this witness [PW7], it is very much clear that at 12.30 in the midnight, the deceased took a cool drink and then left on a motorbike. He noticed an auto standing by the side of his shop, wherein A1, A2 and A4 were present. He excludes the presence of A4 while giving evidence whose presence is not spoken to by PW1, PW2 and PW6. According to him, after the deceased left his shop, he heard a big sound from the arch side. This arch, according to him is situated at a distance of half a kilometre from the petrol bunk. This portion of evidence of PW7 has to be tested with the evidence of PW1, who in his evidence deposed, that while he and PW2 were waiting near the arch, the deceased came on a motorcycle from a petrol bunk side. Though, PW7 did not mention the distance between his cool drink shop and petrol bunk, but definitely his own evidence show that his shop is situated towards the petrol bunk and the arch is at a distance of half a kilometre from the petrol bunk. That being so, PW7 could not have heard the sound of auto dashing the deceased. 23. Apart from that, the evidence of PW1 and PW2 show that the auto came from Vijayawada side towards Guntur and dashed the motorcycle of the deceased, while the evidence of PW7 is to the effect that after the deceased left, the auto which was standing by the side of his shop, followed the motorcycle, meaning thereby that the auto dashed the motorcycle from behind, which is not the case of the prosecution. Therefore, the version of PW7 is at total variance with the version of PW1 and PW2. Further, the evidence of PW7 is to the effect that the deceased took cool drink in his shop and, thereafter, the incident in question took place. Therefore, the version of PW7 is at total variance with the version of PW1 and PW2. Further, the evidence of PW7 is to the effect that the deceased took cool drink in his shop and, thereafter, the incident in question took place. If that is so, the post-mortem certificate issued by PW14 vide Ex.P7 should give an indication of the presence of some liquid in the stomach, but the said report is otherwise. Therefore, the inconsistencies in the evidence of PW1, PW2, PW6 and PW7 throw any amount of doubt with regard to their presence at the scene of offence, at the time of incident. 24. Apart from the contradictions pointed out in the evidence of PW1 and PW2 vis-à-vis Ex.P1 report, the argument of the learned counsel for the appellant, as stated earlier is that these two witnesses could not have witnessed the incident with the help of street lights as there are no street lights at the scene. Ex.P5 is the scene observation report, which was prepared by the investigating officer in the presence of PW13. This document does not show existence of street lights at the scene. Even PW13 and PW17 did not clearly say about the existence of street lights or electrical poles at the scene of offence, which create a doubt as to the presence of street lights and PW1 and PW2 witnessing the incident with the help of street lights. 25. Insofar as recovery of M.O.1 is concerned, as stated earlier, there are varying versions about the same. On one hand, PW1 and PW2 deposed that M.O.1 was taken away by the accused along with him after attacking the deceased, but some speak about recovery of M.O.1 at the scene pursuant to the arrest of the accused. In view of the above, the recovery of M.O.1 at the instance of A1, cannot be believed. Apart from that, there is no evidence that the blood found on M.O.1 is that of the deceased, leave alone matching of blood group. 26. For the aforesaid reasons, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused No. 1 in the Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012 on the file of the III Additional Sessions Judge, Guntur, for the offence punishable under Section 302 I.P.C., is set- aside and he is acquitted for the said offence. For the aforesaid reasons, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant/accused No. 1 in the Judgment, dated 21.03.2014, in Sessions Case No. 71 of 2012 on the file of the III Additional Sessions Judge, Guntur, for the offence punishable under Section 302 I.P.C., is set- aside and he is acquitted for the said offence. Consequently, the appellant/accused No.1 shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the appellant shall be refunded to him. 27 Consequently, miscellaneous petitions, if any, pending shall stand closed.