CRLA/339/2007 of Narsing Krishna Reddy,(A-1) Vs State of A.P., on 31 December 2009

THE HON’BLE SRI JUSTICE D.S.R.VARMAANDTHE HON’BLE SRI JUSTICE R.KANTHA RAO

CRIMINAL APPEAL No.339 of 2007

Date: 31.12.2009

Between :

Narsing Krishna Reddy (A-1),S/o. late Rami Reddy, aged 30 years,R/o. Narasapuram village,Veldurthy Mandal and 3 others.

… Appellants

and

State of A.P., through Public Prosecutor,High Court of A.P., Hyderabad.

… Respondent

THE HON’BLE SRI JUSTICE D.S.R.VARMAAND

THE HON’BLE SRI JUSTICE R.KANTHA RAO

ORAL JUDGMENT:(per the Hon’ble Sri Justice D.S.R.Varma)

Heard Sri C. Padmanabha Reddy, learned Senior Counsel,representing Sri C.Praveen Kumar, learned counsel appearing for theappellants, as well as the learned Public Prosecutor, appearing for therespondent-State.

2. Appellants are Accused Nos.1 to 4 in the Sessions Case before the Court below.

3. This criminal appeal is directed against the judgment, dated19.02.2007, in Sessions Case No.192 of 2006, passed by the IVAdditional Sessions Judge, Kurnool, convicting the A.1 to A.4 for theoffence punishable under Section 302 read with Section 34 of IndianPenal Code (for brevity “IPC”) and sentencing to suffer RigorousImprisonment for life and to pay a fine of Rs.1,000/- each, in default tosuffer Simple Imprisonment for one month each.

4. The case of the prosecution, in brief, is that on 3.9.2005 at about7-45 p.m., near the Chouti Vanka, at a distance of about ½ k.m. towardsnorth from the village Rathanapalli, A.2 and A.4 attacked the deceasedBoyina Narayana Reddy with sticks and when the deceased fell down,A.1 and A.3 picked up stones and all of them inflicted injuries to thedeceased on his face and head with sticks and stones and caused hisdeath.

5. P.W.1 Boyina Krishna Reddy and the deceased NarayanaReddy are brothers and residents of Rathanapalli village. On 3.9.2005the deceased, his wife P.W.2 and his brother P.W.1 went to their fieldsand returned to their house in the evening. At about 7-00 p.m., A.1 went totheir house and asked P.W.1 to take him to Narsapuram on his motorcycle. P.W.1 told A.1 that he cannot come as he has no work inNarsapuram. Then A.1 requested P.W.1 atleast to send his brother i.e.,the deceased along with him to drop him at Narsapuram on his motorcycle. So P.W.1 sent the deceased along with A.1. On the same day atabout 8-30 p.m., P.W.3 an auto driver went to the house of P.W.1 andinformed his family members that the deceased was lying with bleedinginjuries near Choutivanka and his motor cycle was also lying near theVanka. Immediately, P.W.1 and his brother-in-law P.W.4 went to thescene of offence in the auto of P.W.3 and found the dead body of the deceased in the ditch. They brought out the dead body and foundbleeding cut injuries on the dead body. Thereafter P.W.1 went VeldurthyPolice Station and gave Ex.P.1 report at 11-00 p.m. P.W.15 Inspector ofPolice on receipt of phone call from A.S.I., Veldurthy, reached the policestation at 1-30 a.m. He received the express FIR and took upinvestigation. On the morning of 4-9-2005, P.W.15 held inquest over the dead body in the presence ofP.W.12 and P.W.14 from 7-00 a.m. During the inquest, he recorded thestatements of P.Ws.1 to 5. P.W.15 noticed a light wheat coloured turkeytowel (MO.1) near the dead body. He deputed A.S.I., Veldurthy to thevillage for getting one of the dhobis to identify the towel (MO.1). Hebrought P.W.6, a dhobi, who identified the turkey towel as belonging toA.2. Thereafter he went to the village and examined P.Ws.7, 9 and 10. On5.9.2005, P.W.15 secured the presence of P.Ws.8, 11 and 12 andrecorded their statements. On 18.9.2005 P.W.15 received informationabout the absconding of the accused. He arrested them near a temple.A.2 and A.4 were holding sticks and they were seized.

6. P.W.14, Professor of Forensic Medicine, Kurnool MedicalCollege, conducted autopsy over the dead body on 4.9.2005 at 2-40p.m., and issued the postmortem certificate Ex.P.5. According to thedoctor, the deceased died due to multiple injuries. After completion ofinvestigation and necessary formalities, the police laid the charge sheetagainst A.1 to A.4 for the offence under Section 302 IPC.

7. When the charge was framed, read over and explained to theaccused, they pleaded not guilty and claimed to be tried.

8. In order to bring home the guilt of the accused, the prosecutionexamined P.Ws.1 to 15 and got marked Exs.P-1 to P-9, besides markingmaterial objects MOs.1 to 10. On behalf of the accused, none wereexamined and no documents were marked.

9. The Court below, after considering the entire material includingthe evidence, both oral and documentary, available on record, found allthe accused guilty of the offence under Section 302 read with Section 34IPC and accordingly convicted and sentenced them as stated above.Aggrieved by the same, A.1 to A.4 preferred the present criminal appeal.

10. Sri C.Padmanabha Reddy, learned Senior Counsel appearingfor the accused contended that the entire case of the prosecution restsupon the evidence of P.Ws.7, 8 and 10, who are the eye witnesses, anderred in relying upon the evidence of P.Ws.7and 8, who were highlyinterested witnesses. He also contended that the other witnesses i.e.,P.Ws.1 to 4 were examined only to establish the fact that the deceasedwas last seen in the company of A.1.

11. On the other hand, the learned Public Prosecutor appearing forthe respondent-State sought to sustain the judgment of the Court belowon all aspects and prays to dismiss the appeal.

12. Now, the point that arises for consideration, in this criminalappeal is whether the Court below has rightly appreciated the evidenceof P.Ws.7, 8 and 10 in order to record the order of conviction andsentence for the offence under Section 302 read with Section 34 IPCagainst the appellants/A.1 to A.4?

13. It is the specific case of the prosecution that A.1 approachedP.W.1 first to take him to Narasapuram on his motor cycle, but P.W.1refused to take him on the ground that he has no work at Narasapuram.Therefore, A.1 requested P.W.1 atleast to send his brother, who is thedeceased, along with him to drop at Narasapuram. When that is the caseof the prosecution, it is to be seen that A.1 is the only person whoapproached P.W.1 and insisted for the company of P.W.1 and on refusalby P.W.1, as a second choice A.1 asked for the company of thedeceased, who is the brother of P.W.1, to take him to Narasapuram on his motor cycle. Therefore, what is obvious is that, firstly; the deceased wasnever the target of A.1 and, secondly, all the other accused were not seentogether in the company of A.1 nor they were in the company of A.1 whena request was made to P.W.1 atleast to send the deceased along withA.1.

14. It is further significant to note that when the prosecution hasbeen relying on the evidence of the eye witnesses i.e., P.Ws.7, 8 and 10,the theory of ‘last seen together’ fades into irrelevancy. Therefore, thecase of the prosecution has to be tested on the anvil of the oral testimonyof P.Ws.7, 8 and 10.

15. P.W.7, who is a resident of Rathanapalli village, deposed thaton the date of incident, in the evening, while she along with his son andP.W.8 was coming in an auto from Veldurthy it became dark and whenthey reached near the Rathanapalli village, at the outskirts of the village,they saw all the accused were beating the deceased with sticks andstones and eventually the deceased died. She further stated that shecould see the incident in the light of the auto.

16. At this juncture, it is to be remembered that the incident hadtaken place in the dark and was seen in the light of the auto, particularlywhen four persons were perpetrating the offence. It is rather difficult forany person to watch in the light of the auto to see the entire incident andidentify all the persons, who committed the offence. Even assuming thatP.W.7 had seen the commission of offence at the hands of the accused,in normal course, the same should have been informed to the villagersimmediately. But, nothing had happened in this case. P.W.7 stated thatout of fear she did not disclose to anybody about the incident. Aftercoming back to the village, she went to the borewell to fetch water, shewent outside the house to attend the calls of nature, she went to themarket to buy vegetables and also met several persons of the village atthe borewell. What is significant to be noted is in all those places when this witness came across several persons, she did not reveal about thecommission of offence to anybody.

17. It is to be further seen that the police had recorded her statementonly after three days. In this regard, in fact, the Court below had pointedout that there is no source for the police to approach P.W.7. In such acase, it is hard to believe that P.W.7 was really present at the time ofcommission of offence.

18. P.W.8, who is also a resident of the village, spoke almost in thesame terms as was spoken to by P.W.7, but only deviated on smallaspects. While P.W.7 stated that she witnessed the incident in the light ofthe auto, this witness stated that he had seen the commission of offencein the light of the auto and also in the light of electric light glowing nearthe place of occurrence, that too at the outskirts of the village. Coming tothe conduct of this witness, the credibility that was attached to P.W.7, thesame can be attached to this witness also for the reason that on all thematerial aspects, the evidence of this evidence is the same as that ofP.W.7.

19. P.W.8 further stated that he was a farm servant of P.W.1 as onthe date of incident and prior to that he worked as Tractor driver of thedeceased. This fact makes it clear that he has reasonable proximity withthe deceased as well as P.W.1, who is the brother of the deceased.Therefore, in normal course, it is to be reasonably expected that he owessome sense of responsibility to the deceased and P.W.1, and despite thathe did not behave as an ordinary prudent person and, on the contrary, hewas attending his normal and routine duties till the police approachedhim and recorded his statement. Even in this case also it is not known asto how the police could approach him and examine. In other words, whatprompted the police to examine this witness is not known.

20. From the above, what appears is, there is consistency in theevidence of P.Ws.7 and 8. But, we are of the considered view that the

consistency in the testimony of the witnesses is not sufficient in all cases.Trustworthiness and probabilities also would play a vital role whileassessing the situation and drudging out the truth. As already pointed out,the conduct on the part of P.Ws.7 and 8, who were cited as eye witnessesand whose evidence was heavily relied upon by the prosecution, is notprobable and hard to believe.

21. Further more, from the evidence of P.W.10, the son of P.W.7,who was also cited as an eye witness, turned hostile and nothing couldbe elicited from this witness in favour of the prosecution.

22. Therefore, the only option left for this Court is either to believe ordisbelieve the testimony of P.Ws.7 and 8. For the reasons assigned by usin the above paragraphs, we feel that the evidence of P.Ws.7 and 8 isbeyond the scope of probability and the same is unreliable. In view of thesaid circumstances, we cannot arrive at a definite conclusion that theaccused alone are responsible for the death of the deceased. Theconduct on the part of P.Ws.7 and 8 throw any amount of doubt in themind of this Court and as a consequence thereof the accused are entitledfor the benefit of doubt.

23. The evidence of the other witnesses does not really throw anylight on the facts of the case nor their evidence is capable of changing theviews and conclusions of this Court.

24. In the result, the criminal appeal is allowed setting aside theimpugned judgment, dated 19.02.2007, in S.C.No.192 of 2006, passed by the IV Additional Sessions Judge, Kurnool, and the appellants-A.1 toA.4 are acquitted of the offence with which they were charged and theyshall be set at liberty, forthwith, if not required in any other case. The fineamount, if any, paid by the appellants shall be refunded to them.

_________________________

JUSTICE D.S.R.VARMA

__________________________

JUSTICE R. KANTHA RAO

31.12.2009Msr

THE HON’BLE SRI JUSTICE D.S.R.VARMA

ANDTHE HON’BLE SRI JUSTICE R.KANTHA RAO

31.12.2009(Msr)