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In the Court of Additional Assistant Sessions Judge,
Machilipatnam
Present: Smt. K ARUNA Addl.Asst.Sessions Judge, Machilipatnam
Monday, this the 12th day of June, 2023
SC No.11/2023
Between The State represented by the SubInspector of Police, Bantumilli police Station
….... Complainant
And
1. Miriyala Eliababu @ Eliya Babu @ Nani, S/o.Durgarao, aged about 26 years, resident of Rajeevgandhi market, Bantumilli Village and Mandal, Krishna District (A1)
2. Katta Suri Babu @ Suresh, S/o.Syamalarao, aged about 25 years, resident of Rajeevgandhi market, Bantumilli Village and Mandal, Krishna District (A5)
3. Katta Naga Babu, S/o.Syamalarao, aged about 28 years, resident of Rajeevgandhi market, Bantumilli Village and Mandal, Krishna District (A7)
4. Katta Chinna, S/o.Venkateswararao, aged about 19 years, resident of Rajeevgandhi market, Bantumilli Village and Mandal, Krishna District (A10)
...... Accused
This case is coming before me for final hearing in the presence of Sri.A Murali Krishna, Additional Public Prosecutor on behalf of the Prosecution and Sri.PV Venkateswara Rao, Advocate for the accused and upon considering the material available on record and having stood over till this day for consideration, this court delivered the following
J U D G E M E N T
1.The Sub Inspector of Police, Bantumilli Police Station filed a charge sheet against the A1, A5, A7 and A10 in 2
Cr.No.79/2020 for the offence punishable under Sections 307, 324, 323, 290, 506 r/w 34 of IPC.
2. The averments of the Charge sheet in brief as follows
LW.1 Tamtam Shankar is the resident of Rajivgandhi market. LW.3/ Tamtam Ratna Kumari is the wife of LW.1, LW.2/
Devaraboina Premraju is the younger brother of LW.2. They are living by selling the articles to the villagers on installment basis moving house to house. On 05.03.2020 the LW.1 had performed maturity function of his daughter namely Swarna Latha at his house and
LW.1 has not invited the wives of A1 and A5 to the said function. On that keeping in the mind and waiting for an opportunity and on 06.03.2020 at evening hours, LW.3 questioned LW.2 for why LW.2 had not presented anything to her daughter in the said maturity function and abusing him. On hearing the same the wives of A1 and
A2 came and picked up quarrel with LW.3 with an impression that
LW.2 and 3 abused them. On that the wives of A1 and A2 abused the
LW.3 and beat her indiscriminately. To that connection both the parties went to Bantumilli police and filed cases against each other and returned back to their house, but at about 7pm on 06.03.2020
LW.1 asking one Boddu Rangamma who is relative of accused why she had given false statement against the wife of LW.1 in the police station. In the meantime A1, A5, A7 and A10 came there and attacked LW.1 with deadly weapons like as axe, iron rod, broken beer bottle and stick with a view to kill LW.1. further in the said incident 3
A1 hacked LW.1 with an axe on left side of his neck and caused bleeding injury, A5 beat LW.1 with iron rod on his head and caused bleeding injury, A7 pocked LW.1 with broken beer bottle on the left side of his stomach, A10 beat LW.1 with stick on his head and caused bleeding injury on head and backside of LW.1. Further all the accused abused LW.1 in filthy language by threatening him with dire consequences to kill him and they would not allow the LW.1 to live there. When LW.2 Devaraboyina Premraj went to rescue of LW.1 on that A1 hacked LW.2 with an axe on his right shoulder, A1, A5, A7 and A10 only attacked LW.1 and no other persons came and attacked LW.1. The entire incident was witnessed by LW.3 to 10 and they rescued LW.1 and 2 from the hands of accused. Then after LW.3 and others took the injured persons LW.1 and 2 to Government hospital, Machilipatnam in a car for treatment.
b). On receipt of the hospital intimation LW.15/ ASI of outpost police station of Government hospital had recorded the statement of LW.1 as report and forwarded the same to LW.16. then after received the hospital intimation and statement of LW.1 then the
LW.16 registered a case in Cr.No.79/2020 under Sections 324, 323, 290, 506 r/w 34 IPC and took up investigation and collected ample of evidence by examining the L.Ws.1 to L.W.10, visited the scene of offence place and got prepared rough sketch and scene observation report in the presence of LW.11 and 12 and seized the crime weapons of MO.1 to 3 at scene of offence place. On 19.03.2020 4
LW.17 arrested the accused and sent them for judicial custody.
Moreover basing on the statement of witnesses as that A1 hacked and beat the LW.1 on his vital parts as such Section 307 was added with the existing Sections. After received the wound certificates and completion of investigation, L.W.17 filed the charge sheet. Hence the charge sheet.
3. The Judicial IClass Magistrate, Bantumilli had took up the cognizance for the offences punishable under Sections 307, 324, 323, 290, 506 r/w 34 I.P.C against A1, A5, A7 and A10. The offence alleged against the accused under Section 307 of IPC being exclusively triable by the Court of Sessions. The case was numbered as PRC 5/2022. After appearance of accused and after complying with the statutory procedure like distribution of copies of documents etc., the case was committed to the court of Sessions. The
Honourable District and Sessions Judge, Machilipatnam, Krishna
District took the case on file, numbered it and made over to this court for trial and disposal in accordance with law. Thus this court took up the case for trial.
4. After appearance of accused charges were framed for the offences punishable under Sections 307, 324, 323, 290, 506 r/w 34 IPC against the accused and read over to the accused, and having understood, the accused pleaded not guilty and claimed to be tried.
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5.During the course of trial, the prosecution had examined LWs.1 to 3, 6 to 9, 12, 13 to 17 as P.Ws. 1 to 13 and got marked Exs.P1 to Ex.P9 and MO.1 to 5. The learned APP had given up the evidence of LWs.4 and 5, 10 and that a memo filed along with death certificate of LW.11 as died. After closure of the prosecution side evidence, the accused were examined under Section 313 Cr.P.C, having understood the incriminating evidence deposed by prosecution witnesses and that the accused reported no defence evidence and Ex.D1 to D9 were marked on behalf of the accused through the cross examination of prosecution witnesses.
6. Heard from the prosecution and defence counsels.
7. Now the point for consideration is
“Whether the A1, A5, A7 and A10 armed with
deadly weapons and attacked the LW.1 and 2 with
an intention to kill the LW.1 and caused
voluntarily hurt to L.W1, LW.2 and simple hurt to
LW.3 by abusing them in vulgar language and
threatened to kill the LW.1 with dire consequences
in furtherance of common intention, if so, whether
the prosecution has successfully in establishing
the guilt of the accused for the offence punishable
under Sections 307, 324, 323, 290, 506 r/w 34 of
IPC, beyond all reasonable doubt”?
Point
8. In order to prove its case, the prosecution has examined
PWs.1 to 13 and got marked Ex.P1 to Ex.P9 and MO.1 to 5. Apart from that, PW.1 is the injured person who is husband of PW.3 and 6 brother in law of PW.2. PW.2 is also the injured person who is younger brother of PW.3. PW.3 is the wife of PW.1. PWs.4 to 7 are said to have been eye witnesses of the alleged incident. PW.8 and 9 are the mediators who acted as mediators at the time of drafting the scene observation report and alleged seizure , arrest made by PW.12 and 13. PW.10 is the ASI of outpost police station, Government hospital, Machilipatnam who received the hospital intimation and recorded the Ex.P1 statement of report of PW.1. PW.11 is the medical officer who issued wound certificates of PW.1 and 2. PW.12 is the
Investigating officer who registered the case and issued FIR and took up investigation. PW.13 is the investigating officer who arrested the accused and took up part of investigation, filed the charge sheet
before the court. In so far as exhibits concerned, Ex.P1 is the
statement of report of PW.1, Ex.P2 is the scene observation report,
Ex.P3 is the signature of PW.9 on mediators report, Ex.P4 is the hospital intimation, Ex.P5 is the wound certificate of PW.1, Ex.P6 is the wound certificate of PW.2, Ex.P7 is the original First Information
Report, Ex.P8 is the rough sketch, Ex.P9 is the mediators report dt.19.03.2020. Moreover in regarding to material objects, MO.1 is the blood stain white colour cut buniyan, MO.2 is the broken beer bottle pieces, MO.3 is axe, MO.4 is ceiling fan iron rod, MO.5 is stick.
Ex.D1 to D5 are contradictory statements of PW.1, PW.2, PW.4 to 6.
Ex.D6 is the endorsement of PW.11 on the statement of report of accused person in FIR No.99/2020 of Bantumilli police station.
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Ex.D7 is the certified copy of FIR in Cr.No.99/2020 of Bantumilli police station, Ex.D8 is the certified copy of statement of A5 as report in Cr.No.99/2020, Ex.D9 is the certified copy of FIR in
Cr.No.16/2020 along with statement of report.
9. The case of the prosecution and learned APP argued that the PW.1 and 3 are using to sell aluminum household articles on installment basis by moving one house to another house in the villages and that the accused are also doing same business. In that connection there are some disputes cropped between them. Further on 05.03.2020 the PW.1 and 3 were performed their daughter’s maturity function without inviting the wives of the accused and that on 06.03.2020 at evening time when the PW.3 questioning her younger brother PW.2 as why he has not presented anything to their daughter and abused the PW.2. On that the wives of A1 and A2 heard the same with an impression that L.W2 and L.W3 were abused them and taking advantage of the same and waiting for an opportunity, they picked up quarrel with the PW.3 by abusing her in vulgar language and beat her indiscriminately. On that both the parties lodged report to police against each other. Then after on 06.03.2020 at evening hours while the PW.1 asking one Rangamma for giving false information to the police against the PW.3. In the meanwhile the accused came there armed with deadly weapons and attacked the PW.1. In the said incident, the A1 hacked the PW.1 with an axe on his left side of neck caused bleeding injury. A5 beat the 8
PW.1 with ceiling fan iron rod on his head and A7 pocked the PW.1 with broken beer bottle on left side of the stomach there by caused bleeding injury and A10 beat the PW.1 with stick on his head and back side. Then on seeing the incident, PW.2 came there to rescue the PW.1 from the hands of accused. On that A1 hacked the PW.2 with an axe on his left side of shoulder then after the PW.3 shifted the PW.1 and 2 to Government hospital, Machilipatnam for treatment. Then on receipt of the Ex.P4 hospital intimation, the
PW.10 went to Government hospital and recorded Ex.P1 statement of report of PW.1 and forwarded the same to Bantumilli police station on point of jurisdiction. Then after receipt of Ex.P1, the PW.12 registered the case and issued Ex.P7 FIR and visited the scene of offence place by examined PW.3 to 7, LW.4 and 5 and also prepared
Ex.P2 scene observation report and seized the MO.1 to 3 at scene of offence place. Further the learned APP argued that the evidence of
PW.3 to 7 are equally corroborated with the evidence of PW.1 and 2 on all material aspects and the evidence of PW.8 and 9 also corroborated with the evidence of PW.12 in regarding to visited the scene of offence place and prepared Ex.P2 scene observation report and seized the MO.1 to 5 and arrested the accused in their presence by PW.13 and that the evidence of PW.11 is also equally corroborated with the evidence of PW.1 and 2 in regarding that the P.W1 and P.W2 received the injuries due to attacked the accused. So there is no inconsistency in the evidence of PW.1 to 13 on all material aspects as 9 such the prosecution has established the guilt of the accused for the charged offences as such the accused are liable to be punished in accordance with law.
10.On the other hand the learned counsel for the accused argued that initially the case was registered by police against A1 to
A10 then after the police has deleted the names of some of the accused and shown the A1, A5, A7 and A10 as accused in the charge sheet as it is the version of the prosecution that basing on the statements of the prosecution witnesses the investigating officer came to conclusion that the PW.1 has unnecessarily involved the remaining accused though they have not participated the alleged incident as such the investigating officer has deleted the names of the remaining accused only by showing the A1, A5, A7 and A10 are assailants of the alleged crime who made attack against PW.1 by deadly weapons. So if such is the case of the prosecution, the version of PW.1 to 7 cannot be reliable as they can speak false evidence against the accused persons keeping in mind of pending the counter cases against them. Further the learned counsel for the accused argued that as per the evidence of PW.13 in the cross examination that on 07.03.2020 itself the PW.12 added section of law under
Section 307 IPC with the existing sections and Ex.P7 FIR was sent to the court on 08.03.2020 it relating to the offences punishable under
Sections 324, 323, 290, 506 r/w 34 IPC and that it is clear 10 admission of PW.13 in the cross examination that prior to reach the
Ex.P7 FIR to the court the said Section 307 was added with the existing sections. So if such is the version of PW.13 is to be taken into consideration that Section 307 IPC was added prior to sending the Ex.P7 to the court, certainly the said Section 307 must be noted in Ex.P7 FIR. But Ex.P7 FIR does not disclose the said Section 307
IPC. So itself creates an inference over the case of prosecution.
Further the learned counsel for the accused argued that the wife of
A1 and A1 lodged report against one Nakka Siva, PW.5 to 7 to
Bantumilli police, on that a crime was registered and which was numbered as CC No.341/2020 pending before Judicial First Class
Magistrate, Bantumilli. Further that A5 lodged report against PW.1 to
3 and their men to Bantumilli police, thereupon a case in
Cr.No.99/2020 was registered against PW.1 to 3 and their men. So that the PW.1 to 7 are none other than the accused in
Cr.No.99/2020 and CC No.341/2020 as such they can speak false evidence to support the case of PW.1 and that the oral testimonies of
PW.2 to 7 goes to show in same lines of evidence of PW.1 and that there are so many contradictions and discrepancies fallen in the evidence of PW.1 to to7 in regard to specific overt acts attributed by each individual accused against the PW.1 to 3. Moreover the evidence of PW.1 to 7 are not corroborated with each other in regarding to overt acts of accused towards PW.1 to 3.
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11. The learned counsel for the accused further argued that if the PW.1 and 2 got admitted in the Government hospital as inpatient or out patient, it should be noted the numbers of outpatient or inpatient in Ex.P4 hospital intimation, Ex.P5 and P6 wound certificates of PW.1 and 2. But Ex.P4 to P6 have not disclosed anything about the inpatient number or outpatient number of PW.1 and 2. So it creates suspicious about the injuries noted in Ex.P5 and P6 has been received by P.W1 and P.w2. In addition to that the learned counsel for the accused argued that if A5, A7 and A10 attacked the PW.1 by beating with the alleged deadly weapons, certainly the PW.1 would have received either contusion, abrasion, laceration or cut injury and that even the PW.1 must have complained the pains over his body. But no such type of injuries found in Ex.P5 wound certificate on the body of PW.1 and that whatever the injuries said to have been received by PW.1 in the hands of A5, A7 and A10 it was not found in Ex.P5 wound certificate, so the version of PW.1 goes to show as an exaggerate version.
Further it is the case of prosecution that A1 hacked the PW.2 with an axe on his both shoulders. If such is the case, certainly the PW.2 could have received either laceration or cut injuries over his both shoulders. But Ex.P6 wound certificate of PW.2 goes to show an abrasion injury on left shoulder of PW.2 and that the PW.11 medical officer categorically admitted in cross examination that the said abrasion injury may be possible to cause with self infection by nails.
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So it can be said that whatever the alleged injury noted in Ex.P6 may be possible to cause by self infection of PW.2 and that the oral testimonies of PW.1 and 2 are not corroborating with the ocular evidence. The learned counsel for the accused argued that according to PW.1 and Ex.P1 that the accused 1 to 10 came there with deadly weapons and attacked the PW.1 as mob. But whereas the investigation of PW.12 and 13 goes to show that except A1, A5, A7 and A10 none other accused person were participated and attacked the PW.1 and 2, on that the PW.12 deleted the names of remaining accused persons who were shown in Ex.P7 FIR. But whereas PW.1,
PW.2, PW.4 to 6 denied to state before the police that the remaining accused were not participated in the alleged offence and attacked the
PW.1 with deadly weapons as such the said contradictory statements of PW.1, 2, 4 to 6 were marked as Ex.D1 to D5. So the version of
PW.1, 2, 4 to 6 are quite contrary to version of PW.12 in regarding to participation of the remaining accused in the alleged crime.
12.Further the learned counsel for the accused argued that whatever the names of the persons shown in Ex.P8 rough sketch as neighbors of the scene of offence place, those persons were not shown as witnesses in the charge sheet and examine them as witnesses to prove the case of prosecution and that the names of
PW.2 to 7 were not shown in Ex.P8 rough sketch as inhabitants of the scene of offence locality. So it can be said that the PW.2 to 7 are 13 interest witnesses as being relatives of the PW.1 as such they can speak false evidence against the accused persons. In addition to that the alleged scene of offence occurred at the house of Devaraboina
Durga Rao and that Ex.P2 scene observation report was drafted on the dictation of Devaraboina DurgaRao, but he was not shown as witness in the charge sheet though he is materiel witness of the prosecution case as such the reasons best known to the prosecution for not showing and examine the material witnesses who are shown in Ex.P8 rough sketch. So in the absence of non showing and examine the material witnesses, it is fatal to the prosecution case.
Further the doctor PW.11 who said to have been rendered treatment to PW.1 and 2, he was also endorsed on the statement of report of A5 on the same date of alleged incident and that the PW.10 also admitted that he recorded the statement of A5 on the same date of alleged offence, which proved under Ex.D7 and D8. But the PW.1 to 7 denied the said fact, so itself established about the conduct and attitude of the PW.1 to 7 and that whatever the statement of A5 recorded by the police the said statement was registered as case in
Cr.No.99/2020, but the police did not file the charge sheet before the court as well as it was not returned as mistake of law or mistake of fact and that it is still pending before the Bantumilli police. So itself also shows about the attitude of the Bantumilli police for not filing the charge sheet before the court. Further one Nakka Siva who is the husband of PW.5, he is follower of sitting MLA of Pedana 14 constituency being YSRCP leader and due to influence of the said
Nakka Siva, the police registered the false case against the A1, A5,
A7 and A10 without occurrence of alleged incident and whatever the material objects said to have been produced before the court which are implicated for the purpose of the case. So having considering all these facts and circumstances the prosecution has miserably failed to prove the guilt of the accused as such the accused are entitled to be acquittal.
13.Upon perusing submission of both counsels and material available on record it is held that the initial burden lies upon the prosecution to prove the material fact that the A1, A5, A7 and A10 attacked the PW.1 by deadly weapons with an intention and knowledge of causing death of PW.1 by their acts. Before going to discuss the said relevant issue the prosecution has to prove the relevant fact pertaining to the reason and motive behind the occurrence of the alleged incident dt.632020. In order to substantiate the said relevant fact the oral testimony of PW.1 injured person and informant goes to show that he is doing aluminum business by selling the same on installment basis as well as his neighbors A1, A5, A7 and A10 are also doing same business and that when the PW.1 used to sell the said articles at low price, on that the ladies of the accused namely Katta Premkumari Miriyala Rani questioned the PW.1 why he used to sell the said articles at low price than them and gave warning to PW.1. Further according to the 15 version of PW.1 that the reason behind the occurrence of the incident dt.06.03.2020 that the PW.1 did not invite the accused family to his daughter’s maturity function, on that the accused bore grudge against him. So according to the version of PW.1 that the reason behind the occurrence of the incident dt.06.03.2020 that the PW.1 had not invited the family of the accused to the maturity function of daughter’s of PW.1 as well as the PW.1 used to sell the aluminum articles at low price than the accused persons. But whereas the contents of Ex.P1 and evidence of PW.10ASI who recorded the Ex.P1 statement of report of PW.1, it goes to show in the cross examination of PW.10 that PW.1 did not state in Ex.P1 statement of report that the PW.1 used to sell the aluminum articles on installment basis and that the ladies of the accused persons namely Katta Premkumari,
Miriyala Rani questioned the PW1 for selling the said articles at low price and gave warning to PW.1 as well as the evidence of PW.12 goes to show in the cross examination that the PW.1 did not state in 161
Cr.P.C and Ex.P1 statement of report that the PW.1 used to sell aluminum articles at low price on that one Katta Premkumari,
Miriyala Rani questioned the PW1 for selling the said articles at low price than the accused persons and gave warning to PW.1. So the said material aspect is kept silent in the Ex.P1 statement of report and the evidence of P.W1 is quite contrary to the evidence of PW.10 and 12 as such it can be said that it is nothing but subsequent improvement in the evidence of PW.1 and material omission to earlier 16 statement of PW.1.
14. In addition to that it is also the version of PW.1 that the accused family was not invited to daughter’s maturity function of
PW.1 by the PW.1, on that the accused family bore grudge against the family of PW.1. To that in pursuance of contents of Ex.P1 statement of report it does not disclose that the family of the accused bore grudge against the family of the P.W1 for the reason that the family of the PW.1 has not invited the accused family to maturity function of PW.1’s daughter. But the contents of Ex.P1 statement of report goes to show that on 05.03.2020 at evening time while the
PW.3 questioning her younger brother PW.2 for not presenting anything to her daughter in maturity function, on that the wives of the accused namely Katta Premkumari and Miriyala Rani are under impression that they were abusing them on that the said Katta Prem
Kumari and Miriyala Rani went there and questioned the PW.3 why she has been abusing them and they abused the PW.3 in the vulgar language and beat her, on that both the parties went to Bantumilli police station and submitted report against each other. So the version of P.W1 is quite contrary to the contents of E.xP1 in regarding to reason behind the occurrence of alleged incident dt 6.3.2020.
15.Moreover according to the contents of Ex.P1 that prior to occurrence of the incident dt 06.03.2020 that there was 17 incident occurred between the PW.3 and wives of accused namely
Katta Premkumari and Miriyala Rani on 05.03.2020, as well as according to the contents of Ex.P1 statement of report that the said
Prem Kumari and Miriyala Rani abused the PW.3 and beat her. But whereas the contents of the charged sheet that the alleged incident occurred on 6.3.2020, however it may be typographical mistake as instead of typing the date of incident as 5.3.2020 it was typed as 6.3.3030, in addition to that whereas the evidence of PW.1 goes to show in chief examination that on hearing the discussion between the PW.2 and 3 the said Miriyala Rani and Katta Prem Kumari caught hold the tuft of his wife PW.3 and made fell down her and beat PW.3 with hands. So according to the version of PW.1 that the said Miriyala Rani and Katta Premkumari were also caught hold the tuft of PW.3 and made fell down her. But in pursuance of oral testimony of PW.3 it does not disclose that the said Katta Prem
Kumari and Miriyala Rani caught hold her tuft and made fell down her as to the evidence of PW.3 goes to show that while the PW.3 questioning the PW.2 for not presenting anything to her daughter in maturity function, on that the said Katta Premkumari and Miriyala
Rani came there and questioned the PW.3 by abusing the PW.3 and beat her in view of keeping in the mind of business affairs. So the evidence of PW.3 is kept silent that the Katta Prem Kumari and
Miriyala Rani caught hold the tuft of PW.3 and made fell down her.
Thus the version of PW.1 is not supported to the version of PW.3 on 18 that regard.
16.In addition to that on going through the cross examination of PW.10, he categorically admitted that PW.1 did not state in Ex.P1 statement of report that the said Katta Premkumari and Miriyala Rani went there and questioned the wife of PW.1 and both of them caught hold the tuft of hair of the PW.3 and made fell down her and beat her with hands. In addition to that as seen the cross examination of PW.12, he categorically stated that the PW.1 did not state in 161 Cr.P.C statement that while the PW.2 and 3 were discussing in the meanwhile Miriyala Rani and Katta Premkumari came there and caught hold the tuft of hair of PW.3 and made fell down her, beat her with hands. So the version of PW.1 is quite contrary to the version of PW.10 and 12 to that regard. As such it can be said that it is nothing but subsequent improvement in the evidence of PW.1 in regarding to that aspect. So there is an inconsistency and discrepancy in regarding to reason behind occurrence of alleged incident dt.05.03.2020.
17.Moreover according to the version of PW.1 that the alleged incident occurred on 06.03.2020 at 7am and in pursuance of
Ex.P1 statement of report that the alleged incident occurred on 06.03.2020 at 7pm as well as Ex.P7 FIR vehemently goes to show that the alleged incident occurred on 06.03.2020 at 7pm, so there is no discrepancy in regarding to date and time of occurrence of the alleged incident. Further the prosecution has alleged that both the 19 parties lodged report to police against each other on 5.3.2020 for occurrence of the alleged incident on 5.3.2020, keeping in view of the same the accused made a plan to cause the death of P.W1, thus the alleged incident dt 5.3.2020 leads to motive behind the occurrence of the alleged incident dt 6.3.2020.
18. On that it is held that the prosecution has to prove that the accused persons are attempted to commit the murder of the
P.W1 with an intention or knowledge that their acts causes to death of the P.W1. In order to substantiate the said material fact that what all the evidence of PW.1 goes to show that on 06.03.2020 at 7pm A1 came and abused the P.W.1 in vulgar language and hacked the PW.1 on left side of neck with an axe thereby the PW.1 received bleeding injury, in the meantime A5 came armed with fan iron pipe and beat the PW.1 on his right side of temporal region of head and A7 has broken the beer bottle and pocked the PW.1 on his left side of stomach. In the meantime the PW.3and 2 intervened to rescue the
PW.1 from the hands of the accused, on that A1 hacked the PW.2 on his both shoulders with axe, then A10 caught hold the tuft of PW.2 and dragged her on the road and torn her nighty and beat the PW.1 and 3 with stick for that the PW.1 received injury on his occipital region of head and backside. So according to the version of PW.1 that
A1, A5, A7 and A10 beat the PW.1 with deadly weapons as one by one, but they were not attacked the PW.1 as mob. At this juncture in pursuance of contents of Ex.P1 statement of report that on 20 06.03.2020 at about 7pm the PW.1 was talking with one Rangamma at his house as to the said Rangamma gave false statement to the police against PW.3. in the meanwhile A1, A5 and wife of A1 namely
Miriyala Rani and wife of A5 namely Naga, A7 and his wife Katta
Premkumari, A10 and his wife Naga Durga and sons of Katta
Venkateswara Rao namely Nancharaiah and Chinna came there as mob and attacked the PW.1 and abused the PW.1 in vulgar language and that A1 was uttering words as to kill PW.1. So according to contents of Ex.P1 statement of report that A1 to A10 came as mob and attacked the P.W1. Thus the version of P.W1 in his oral testimony is quite contrary to his earlier version in Ex.P1 statement of report.
19.Moreover in corroborating to the evidence of PW.1, as seen the oral testimony of P.W.2 it goes to show that one Rangamma is residing opposite to their house and the said Rangamma is the relative of Katta Prem Kumari and Miriyala Rani and when police came and enquire about the incident dt.05.03.2020, on that the said
Rangamma stated to police as no such incident occurred on the day of 05.03.2020, for that the Pw.1 questioned the said Rangamma, in the mean while the accused came and attacked the P.W1. It is also the oral testimony of PW.5 and 7 that on 06.03.2020 at about 7pm
PW.1 went to the house of Rangamma and questioned her why she stating lie about his wife in the meantime A1, A5, A7 and A10 came there and attacked the PW.1. so according to the contents of Ex.P1 21 and the version of PW.2, 5 and 7 that while the PW.1 was questioning the said Rangamma about the said Rangamma stated false statement to the police against the wife of PW.1 for the occurrence of alleged incident dt 5.3.2020, in the mean time the alleged incident dt.06.03.2020 took place. Thus it can be said that the alleged incident took place before the said Rangamma, so the said Rangamma is very crucial witness to prove the case of prosecution being direct witness of the alleged incident dt 6.3.2020, but neither the PW.12 nor PW.13 shown the said Rangamma as witness in the charge sheet. Thus the reasons best known to the prosecution for non showing the said Rangamma as material witness to prove the case of prosecution. In the absence of non showing or examine the said material witness, it is fatal to the prosecution case.
20.Further as per the oral testimony of P.W2 that the said Rangamma is residing in opposite to their house and it is also the evidence of P.W5 and 7 that the P.W1 went to the house of said
Rangamma and questioning her for stating false statement against the wife of P.W1. So it implies that the P.W1 got knowledge about the house of said Rangamma, but whereas the P.W1 categorically stated in his cross examination that he did not know where the house of the said Rangamma is situated, so it implies that the P.W1 is suppressing to say the house of Rangamma though he got knowledge about the house of Rangamma as to P.W2 is own brother in law of
P.W1 and his house is situated opposite to the house of said 22
Rangamma as spoken by P.W2, in that situation, certainly the P.W1 must have knowledge about where the house of Rangamma is situated, but it shows that the P.W1 is intentionally speaking false evidence and that the evidence of P.W1 is quite contrary to the evidence of P.W2, P.W5 and P.W7
21. Now it is duty of the prosecution to prove the specific overt acts attributed by each individual accused against PW.1 to 3 as it is the case of PW.1 that A1 hacked him with an axe on his left side of neck thereby he received severe bleeding injury, but whereas the contents of E.xP1 goes to show that while A1 trying to hack the
PW.1 with axe then the PW.1 kept aside on that the sharp edge of axe touched at left side of neck of PW.1. thereby PW.1 received bleeding injury, so the version of P.W1 is quite contrary to his earlier statement in Ex.P1.
22.In addition to that it is the evidence of PW.2 that A1,
A5, A7 and A10 came there as mob and A1 hacked the PW.1 on his left side of neck with axe by uttering words in vulgar language. But it is not the evidence of PW.1 that A1, A5, A7 and A10 came there as mob and that it is also the version of PW.1, PW.2 and PW.5 that when A1 only came to the scene of offence place, directly A1 hacked the PW.1 with an axe on his left side of neck, but whereas the contents of Ex.P1 goes to show that while A1 was trying to hack the
PW.1 on that the PW.1 kept aside as such the edge of the axe was touched at left side of neck thereby the PW.1 received bleeding 23 injury. Further it is also the oral testimonies of P.W3, P.W.4, P.W6 goes to show that while A1 was trying to hack the PW.1 on his head, on that the PW.1 kept aside as such the edge of the axe was touched at left side of neck thereby the PW.1 received bleeding injury. So there is inconsistency in the evidence of PW.1 to P.W7 with the contents stated in Ex.P1 statement of report with regard to specific overt acts of A1 towards PW.1.
23.In addition to that as seen the cross examination of
PW.12 investigation officer, he categorically stated that the PW.1,
PW.5 did not state in 161 Cr.P.C statement on 06.03.2020 at 7pm A1 came and abused in vulgar language and hacked the PW.1 on his left side of neck with axe and thereby PW.1 received bleeding injury and in the meantime A5 came there armed with ceiling fan iron pipe and beat the PW.1 on his right side of temporal region, so the version of
PW.1, PW.5 are quite contrary to the version of PW.12.
24.Further on verification of MO.3 axe its blade appears very sharp, if A1 directly hacked the PW.1 with MO.3 axe on his left side of neck of carotid pulse, certainly it causes an endanger to the life of PW.1 and that the blood must be oozing from the said carotid pulse as the said carotid pulse is very important to every human being as to it is connecting to the brain for supplying the blood from heart to brain and that there can be chance of death of PW.1 by sustaining the said type of alleged injury. Further MO.3 axe appears to be new one, its Sharpe blade length is 7.3 Cm, so if the A1 24 hacked the P.W1 with the alleged MO.3 axe, certainly he would have received such blade length of injury. But the PW.11 medical officer noted in Ex.P5 wound certificate of PW.1 that PW.1 received a laceration of 8x4x2 cm over left side neck of carotid palpadle, it means that the PW.11 got measured the such injury by using tape or scale to note down the correct size of injury in E.xP5. But whereas the cross examination of the PW.11 goes to show that he has measured the said injury by using his hand as he did not use any scale or tape. So how the PW.11 can measure such injury by using hand and how he can come to conclusion to note down the correct size of injury by using his hand as to the correct measurement or size of alleged injury of PW.1 will not come out by measuring the injury with hand, so it can be said that whatever the size of injury mentioned in Ex.P5 wound certificate is not at correct as to the MO.3 axe of Sharpe blade is length about 7.3 and how the P.W1 can receive laceration injury of size of 8x4x2 cm, it creates suspicion.
Moreover if the PW.1 has received any laceration injury as noted in
Ex.P5 certainly the blood was oozing from the said injury till the time of rendering treatment to PW.1 by the medical officer. On that it is the evidence of PW.11 medical officer in the cross examination that he has not mentioned in Ex.P5 in regarding to the injury noted therein whether it is fresh or oozing blood from the wound. Further it is also not mentioned in Ex.P5 that the said injury might have been caused by blunt or sharp object. So in the absence of the said 25 material fact in E.xP5 how the PW.11 can say that the PW.1 received the injury noted in Ex.P5 by sharp or blunt object without mentioning the same in Ex.P5. As such there is no veracity over the evidence of P.W11.
25.Moreover it is the case of PW.1 that he was admitted as inpatient in Government hospital, Machilipatnam and got treatment for one month. On the other hand it is the case of the accused that if the PW.1 got treatment for one month as inpatient in the Government hospital, Machilipatnam, certainly the inpatient number of PW.1 should be mentioned in Ex.P4 hospital intimation and Ex.P5 wound certificate, but which are kept silent. So the version of the PW.1 cannot be reliable as he got treatment from the
Government hospital, Machilipatnam for one month as inpatient. At this juncture in pursuance of Ex.P4 hospital intimation and Ex.P5 wound certificate of PW.1, it does not disclose about either outpatient(OP) number or inpatient(IP) number of PW.1 to take admission in Government hospital, Machilipatnam for treatment. In addition to that PW.11 medical officer categorically stated in cross examination that in general the patient takes admission in hospital by allotting either inpatient number or outpatient number, then after bed will be allotted to the said patient for treatment. Further admitted that the patient would not be allowed for admission in the hospital without having inpatient number. Further PW.11 categorically admitted that Ex.P5 does not disclose inpatient or 26 outpatient number of PW.1 and that there is no information in Ex.P5 pertaining to that the PW.1 was admitted in hospital from which period to which period. So this portion of evidence proves that there is no material evidence to show that the PW.1 was admitted as inpatient in Government hospital, Machilipatnam and got treatment for one month to the lacerated injury sustained on the left side of neck as mentioned in Ex.P5. Thus the version of PW.1 cannot be reliable that he got treatment for one month in Government hospital,
Machilipatnam.
26.Further it is the case of PW.1 that after A1 hacked
PW.1 with an axe on left side of neck, in the meantime A5 came there armed with fan iron pipe and beat him on his right side of temporal region of head, but as per the contents of Ex.P1 statement that A5 beat PW.1 with an iron rod on his head thereby the PW.1 received bleeding injury. So it is kept silent in Ex.P1 about the nature of rod that the A5 beat the PW.1 with ceiling fan iron rod. In addition to that the evidence of PW.2 and 3 goes to show in the same lines of evidence of PW.1 in regarding to specific overt act of A5 towards
PW.1. Further according to the evidence of PW.1 that he received bleeding injury on his right side of temporal region but it is the evidence of PW.2 and 3 that PW.1 received injury on his head due to beaten by A5 with ceiling fan iron rod, but whereas the evidence of
PW.4 goes to show that A5 beat PW.1 with ceiling fan iron rod on his parietal region. It is also the evidence of PW.5 that A5 beat the PW.1 27 with ceiling fan iron rod on the neck of PW.1 thereby A5 received bleeding injury. It is also the evidence of PW.6 that A5 beat PW.1 with ceiling fan rod on his head on that PW.1 received severe bleeding injury. Further it is also the evidence of PW.7, that A5 beat
PW.1 with ceiling fan rod on the head of PW.1. So there is an inconsistency in the evidence of PW.1 to 7 due to specific overt act of
A5 towards PW.1 and there is no corroboration with each other, however if the PW.1 received severe bleeding injury on his head due to beaten by A5 as spoken by P.W1 to 7. Certainly such injury should be found by PW.11 and it would be noted in Ex.P5 wound certificate. But whereas Ex.P5 wound certificate is kept silent in regarding to such injury received by PW.1 and that the evidence of
PW.11 goes to show in the cross examination that except the injury on the left side of neck of PW.1 he did not find any such type of injuries on the body of PW.1 as such it was not noted in Ex.P5. So the evidence of PW.11 is quite contrary to the evidence of PW.1 to 7 pertaining to that the PW.1 had received bleeding injury either on temporal region or parietal region of head due to beaten by A5.
27.In addition to that the PW.12 investigating officer categorically stated in his cross examination that the PW.1 did not state in his 161 Cr.P.C statement that on 06.03.2020 at about 7pm
A1 came and abused in vulgar language and hacked PW.1 on his left side of neck with axe thereby PW.1 received bleeding injury in the meantime A5 came there armed with ceiling fan iron pipe and beat 28
PW.1 on his right side of temporal region. It is also the evidence of
PW.12 in the cross examination that PW.5 did not state in 161
Cr.P.C statement that A1 hacked the PW.1 with axe on his left side of the neck, A5 beat the PW.1 with ceiling fan iron rod on his head and
PW.6 and 7 did not state in their 161 Cr.P.C statement that A5 beat
PW.1 with ceiling fan iron rod on his head on that the PW.1 received bleeding injury. So the version of PW.1, 5 to 7 are also quite contrary to the evidence of PW.12. Further if A5 beat PW.1 with either iron rod or ceiling fan iron rod on the head of PW.1, certainly the PW.1 could have received either abrasion, contusion or lacerated injury on his head. But as per Ex.P5 wound certificate that there is no such type of injury on the head of PW.1 as such the version of PW.1 to 7 cannot be reliable.
28.Moreover it is also the case of P.W1 that after A5 beat
PW.1 with an iron rod then after A7 picked up broken beer bottle and pocked the PW.1 on his left side of the stomach on that he received bleeding injury. But whereas the contents of Ex.P1 statement of report goes to show that A7 was trying to pock the PW.1 with piece of glass bottle then PW.1 kept aside for that the said piece of glass bottle was scratched on the left side of stomach of PW.1 thereby the
PW.1 received bleeding injury. So the version of PW.1 is not corroborating with the contents of Ex.P1 on that aspect. In addition to that as per the version of PW.1 that he received bleeding injury on his left side of stomach due to A7 pocked with broken beer bottle.
29
But whereas the oral testimony of PW.2 goes to show that A7 pocked
PW.1 with broken beer bottle on the right side of stomach. So there is inconsistency of the evidence of PW.1 and 2 in regarding to on which side of stomach the PW.1 received injury due to pocked by A7.
Further the evidence of PW.4 to 6 goes to show on the same lines of evidence of PW.1 in regarding to specific overt act of A7 towards
PW.1. But it is also the evidence of PW.6 that PW.1 received severe bleeding injury on his left side of stomach due to pocked by A5 with broken piece of beer bottle. It is also the evidence of PW.7 that A7 stabbed the PW.1 with broken beer bottle on left side of stomach which result the PW.1 received bleeding injury. So if the version of
PW.1 to 7 are to be taken into consideration that the A7 pocked the
P.W1 with broken beer bottle on his stomach, certainly the PW.1 could have received either cut, laceration or bleeding injury on his stomach and the blood will be oozing from the said injury and that it should be evident in Ex.P5 wound certificate. But whereas Ex.P5 wound certificate is kept silent in regarding to any such type of injury received by PW.1 and that the evidence of PW.11 medical officer goes to show in the cross examination that except the injury on the left side of neck of PW.1 he did not find any such type of injury on the body of PW.1 as such it was not noted in Ex.P5. So the evidence of PW.11 is quite contrary to the evidence of PW.1 to 7 pertaining to that the PW.1 had received bleeding injury on his stomach due to pocked or stabbed by the A7 with piece of broken 30 beer bottle.
29. In addition to that the PW.12 investigating officer categorically stated in his cross examination that the PW.4 and 5 did not state in their 161 Cr.P.C statement that A7 pocked the PW.1 with broken beer bottle on his left side of the stomach. Further it is also the evidence of PW.12 in the cross examination that PW.6 did not state in 161 Cr.P.C that there was broken piece of beer bottle at the incident place then the A7 picked up the said broken piece of beer bottle and pocked the PW.1 on his left side of stomach on that the
PW.1 received severe bleeding injury. So the version of PW.4 to 6 are quite contrary to the version of PW.12. Further the version of PW.1 to 7 are not corroborating with the evidence of PW.11 medical officer as such the evidence of PW.1 to 7 cannot be reliable.
30.Moreover it is the version of PW.1 in his oral testimony that when the A7 pocked the PW.1 with broken beer bottle, in the meantime his wife (PW.3) and his younger brother in law (PW.2) intervened to rescue the P.W.1 from the hands of the accused.
On that A1 hacked the PW.2 with an axe on his both shoulders and
A10 caught hold the tuft of PW.3 and dragged her on the road and torn her nighty and also beat the PW.1 and PW.3 with stick. For that the PW.1 received injury on his occipital region of head and backside.
So according to the version of PW.1 that he also received injury on his occipital region and backside due to beaten by A10 with stick.
But whereas the entire contents of Ex.P1 is kept silent pertaining to 31 the specific overt act of A10 towards PW.1 and it is no where stated in Ex.P1 as to it is the statement of PW.1 in Ex.P1 statement of report that the remaining accused persons abused the PW.1 and beat him indiscriminately with hands and legs. So the version of PW.1 in his oral testimony is quite contrary to the contents of Ex.P1 statement and that it is nothing but subsequent improvement in the evidence of PW.1 for specific overt acts of A10 and material omission to the earlier statement of PW.1 in Ex.P1.
31.In addition to that it is the evidence of PW.2 that A10 beat PW.1 with stick on his back side. Further it is the evidence of
PW.3 that A10 beat the PW.1 with stick on all over body indiscriminately and it is also the evidence of PW.4 that A10 beat
PW.1 with stick indiscriminately. As seen the evidence of PW.5 that
A10 beat the PW.1 with a stick on his head and all over body indiscriminately and it is also the evidence of PW.6 that A10 beat
PW.1 with stick on his back side indiscriminately. It is the evidence of PW.7 that A10 beat PW.1 on his back side with stick. So the evidence of PW.1 to 7 are not corroborating with each other in regarding to specific overt act of A10 towards PW.1. Further if really
A10 beat PW.1 with MO.5 stick, certainly the PW.1 would have received an abrasion, contusion or lacerated injury over his body, or his occipital region and even the PW.1 must have complained pains on his body. but whereas Ex.P5 wound certificate is kept silent in regarding to whatever the injury said to have been received by PW.1 32 as spoken by P.W1 to 7 and that the evidence of PW.11 clearly shows that the PW.1 did not state before him that he received injuries on his occipital and stomach as well as he did not identify any injuries on occipital or stomach and he did not find and noted any injuries on the back side of PW.1 as well as the PW.1 did not complain any pains on his back side or all over his body. So the evidence of PW.1 to 7 are not corroborating with the evidence of PW.11 medical officer and
Ex.P5 wound certificate, as such the version of PW.1 to 7 are not trustworthy.
32.In addition to that as seen the cross examination of
PW.12, he categorically admitted that PW.1 did not state in his 161
Cr.P.C statement that A10 beat him and his wife with stick, thereby the PW.1 received injuries on his occipital region and backside.
Further the PW.4 did not state in 161 Cr.P.C statement that A10 beat the PW.1 with stick on his head and body and it is also the evidence of PW.12 that PW.5 did not state in his 161 Cr.P.C statement that A10 beat the PW.1 with a stick on his head and all over body indiscriminately and due to the said injury, the PW.1 fell down in unconscious. Further the PW.6 and 7 did not state in 161
Cr.P.C statement that A10 beat PW.1 with a stick on his back side indiscriminately. Thus the version of PW.12 is quite contrary to the version of PW.1 to 7 and that the evidence of P.W1 to 7 are not corroborated with each other in regarding to specific overt act of A10 towards PW.1.
33
33.In addition to that it is the version of PW.1 that after
A7 pocked the PW.1 with broken beer bottle, in the meanwhile PW.2 and 3 came there to rescue the PW.1 from the hands of accused. On that A1 hacked the PW.2 with an axe on his both shoulders, after that A10 beat the PW.1 with the alleged stick. So according to the version of PW.1 that after A1 hacked the PW.2 with an axe then A10 beat PW.1 with the alleged stick. But whereas the evidence of PW.2 to 7 goes to show that after A7 pocked the PW.1 with the alleged broken beer bottle piece then A10 beat the PW.1 with the alleged stick, after that A1 hacked the PW.2 with the alleged MO.3 axe on his both shoulders. So the version of PW.1 to 7 are not corroborated with each other with regard to serious of acts of accused persons. Further it is the version of PW.1 that A1 hacked the PW.2 with an axe on his both shoulders, but whereas the contents of Ex.P1 statement of report goes to show that while A1 attacking the PW.2 with an axe on that the said axe was scratching on the left side shoulder of PW.2 thereby the PW.2 received bleeding injury. So the version of PW.1 is quite contrary to the contents of E.xP1 statement of report.
34.In addition to that it is the evidence of PW.2 that when A10 beat the PW.1 with a stick then the PW.2 intervened to rescue the PW.1 from the hands of the accused for that A1 hacked the PW.2 with an axe on his both shoulders, then after they engaged the neighbor car and went to Government hospital for treatment. It is 34 also the evidence of PW.3 that after A10 beat PW.1 with stick then the PW.3 and PW.2 intervened to rescue the PW.1, then A1 hacked the PW.2 with axe on his both shoulders. It is also the evidence of
PW.4 that when A10 beat PW.3 with stick on her back and body in the meanwhile PW.2 intervened and that A1 hacked the PW.2 with axe on his both shoulders. Further it is the evidence of PW.5 that when the PW.1 fell down due to the injuries, in the meantime the
PW.2 and 3 came there and intervened to rescue PW.1 from the hands of accused, on that A1 hacked the PW.2 with an axe on his left side shoulder. Further it is the evidence of PW.6 that while A1 hacking the PW.1 with an axe in the meantime PW.2 intervened to rescue the PW.1 then A1 hacked PW.2 with an axe on both shoulders of PW.2 and that it is the evidence of PW.7 that after PW.1 received injury on his back side due to beaten by PW.10 and while all the accused abusing the PW.1 in vulgar language, in the meantime the
PW.2 intervened to rescue the PW.1 then A1 hacked PW.2 with axe on his both upper arms. So there is inconsistency in the evidence of
PW.1 to 7 to that regard and that the 161 Cr.P.C statements of PW.2 to 7 goes to show that while the A1 attacking the PW.2 with an axe then the said axe edge was scratched to the right shoulder of PW.2, thereby the PW.2 received bleeding injury. So the version of PW.2 to 7 are quite contrary to their earlier statement and it is nothing but subsequent improvement in the evidence of PW.2 to 7.
35.Further if A1 directly hacked the PW.2 with an axe on 35 his both shoulders as spoken by PW.1 to 7, certainly the PW.2 would have received a laceration or cut injury on his both shoulders and that blood will be oozing from the said injuries. But whereas evidence of PW.11 medical officer and Ex.P6 wound certificate goes to show that the PW.11 found an abrasion over left shoulder of PW.2 and that the PW.11 categorically stated that the said abrasion injury may be possible to cause by self infection. Thus the evidence of PW.11 is quite contrary to the evidence of PW.1 to 7 and whatever the bleeding injuries said to have been received by PW.2 on his both shoulders, it was not found by the PW.11 on both shoulders of PW.2. In addition to that as seen the contents of charge sheet that P.W2 received injury on his right shoulder, it is contrary to the evidence of P.W11 and
Ex.P6 wound certificate. So there is conflict between ocular and medical evidence.
36.On the other hand the learned counsel for the accused argued that it is the case of P.W2 that he got treatment from the Government hospital, Machilipatnam for one month as inpatient, so if the PW.2 got treatment as inpatient for one month in the
Government hospital, Machilipatnam as spoken by PW.2 in his cross examination it should be mentioned the said inpatient number of
PW.2 on Ex.P6.
37.At this juncture in pursuance of Ex.P4 hospital intimation and Ex.P6 wound certificate of PW.2 does not disclose about either OP number or inpatient number of PW.2 to take 36 admission in Government hospital, Machilipatnam for treatment. In addition to that PW.11 medical officer categorically stated in cross examination that if patient takes admission in hospital after allotting either inpatient number or outpatient number then after bed will be allotted to the said patient for treatment, further admitted that the patient will not be allowed for admission in the hospital without taking inpatient number. Further PW.11 categorically admitted that
Ex.P6 does not disclose inpatient or outpatient number of PW.2 and that there is no information in Ex.P6 whether the PW.2 took the treatment as inpatient or outpatient and he did not know that the injured persons of E.xP5 and P6 are treated as outpatient. Further it is also the evidence of PW.11 that he has not found any injuries on the hands of PW.2. In addition to that it is also the stray admission of P.W13 investigating officer in the cross examination that it was not noted about the inpatient or outpatient number of injured persons on Ex.P5 and P6 wound certificates. So the version of PW.2 cannot be believable that he got admitted in the Government hospital and took treatment for a period of one month as inpatient and it can be suggested by the learned defence counsel that the injury noted in
Ex.P6 is self infected injury by PW.2 with nails. Having perusing the aforesaid evidence it can be said that the prosecution has failed to establish that the A1 hacked the P.W2 with an axe and caused voluntarily hurt on both the shoulders of P.W2.
38.In addition to that it is also the evidence of PW.1 that 37 when A7 pocked him, in the meantime PW.2 and PW.3 intervened on that A10 caught hold the tuft of hair of PW.3 and dragged her on the road and torn her nighty and also beat the PW.1 and PW.3 with a stick. But whereas the contents of Ex.P1 and 161 Cr.P.C statement of PW.1 did not disclose the said material fact as such the said evidence of PW.1 is nothing but subsequent improvement in his oral testimony and material omission to his earlier statement. Further if the A10 caused such act towards PW.3, for that the PW.3 is the correct person to say the acts of A10 towards her. On that as seen the evidence of PW.3 it is kept silent that the A10 caught hold hair of her tuft and dragged her on the road, torn her nighty, but it is the evidence of PW.3 that A10 beat her but she did not state before the police. So the evidence of PW.3 is not supporting to the version of
PW.1 about the acts of A10 towards PW.3.
39.Moreover as seen the oral testimonies of PW.2, PW.5 to 7 were also kept silent about the such act of A10 towards PW.3 as such the evidence of PW.2, 5 to 7 are also not supporting to the version of PW.1 as well as it is also the version of PW.12 that PW.1 did not state in his 161 Cr.P.C statement that A10 caught hold the tuft of PW.3 and dragged her on the road and torn her nighty and also beat PW.1 and PW.3 with stick. So the version of PW.12 is also quite contrary to the version of PW.1. Further according to the version of PW.4 that A10 beat the PW.3 with stick on her back and body, but it is not the case of PW.3 that A10 beat her with stick on 38 her back and body. So the version of PW.4 is not corroborating to the version of PW.3. Further that PW.12 categorically admitted in his cross examination that PW.4 did not state in his 161 Cr.P.C statement that A10 beat PW.3 with a stick on her back and body. So the version of PW.12 is quite contrary to the version of PW.4 as such the version of PW.4 is not believable.
40.Further there is no material evidence placed before the court to show that the accused caused simple hurt to P.W3. In addition to that the ocular evidence is conflict with the medical evidence in regard to injuries received by P.W1 to 3. so when there is conflict between ocular and medical evidence the accused cannot be convicted on such evidence and benefit of doubt should be given to the accused, to that context it is rely upon the decision reported in AIR
1981 SC 1578 Mohar Singh and other etc Vs State of Punjab
wherein para No.6, it was observed by the Hon'ble High court that when there is glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the accused on such evidence.
41.Further it is also rely upon the decisions reported in
State of U.P Vs Hari 2009 (13) SCC 542 and Bhajan Singh @
Harbhajan Singh and others Vs State of Haryana 2011 (7) SCC
421. Wherein the Hon’ble Supreme court has observed that so far as the question of inconsistency between medical evidence and ocular evidence is concerned, the law is well settled that, unless the oral 39 evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value visàvis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.
42.So having considering the aforesaid discussion it can be said that the prosecution has failed to establish the specific overt acts attributed by each individual accused against the PW.1 to 3 and that the prosecution has also failed to prove the injuries received by PW.1 to 3.
43.On the other hand the learned counsel for the accused argued that according to the prosecution story that the alleged incident took place at the residential house of Devaraboina
Durga Rao who is none other than the father of PW.2, PW.3, PW.5 and father in law of PW.1. so the said Devaraboina Durga Rao is very crucial witness to prove the case of the prosecution though the said
Devaraboina Durga Rao was present at the time of drafting the Ex.P2 scene observation report as to it was drafted on the dictation of the 40 said Devaraboina Durga Rao as spoken by the PW.8 in his cross examination. But the prosecution did not show or examine the said
Devaraboina Durga Rao as witness in the charge sheet. At this juncture as seen the cross examination of PW.1 he categorically admitted that Devaraboina Durga Rao is his father in law who is having church in Rajivgandhi market colony as the said Durgarao is being pastor to the said church, his father in law church is situated at the distance of 10yards to the house of PW.1 and 3 and that A5 house is situated at the distance of 100yards to the residential house of the said Devaraboina Durga Rao, but he did not know that Boddu
Rangamma house is situated opposite to the house of said
Devaraboina Durga Rao. But in contra to that it is the evidence of
P.W3 that the said Boddu Rangamma house is situated by intervening one house to the residential house of father of P.W3 namely Deveraboina Durgarao, so it implies that the said Boddu
Rangamma house is situated after one house to church of
Devaraboina Durga Rao and that afore said portion of evidence also proves that the said Devaraboina Durga Rao is the father in law of
PW.1 and father of PW.2, 3 and 5.
44.In addition to that as seen the cross examination of
PW.2, he categorically stated that one Deveraboina Durga Rao is his father and Devaraboina Narayana is elder brother of his brother
Durga Rao and PW.5 (LW6) is also daughter of the said Devaraboina
Durga Rao and sister of PW.2. It is also the evidence of PW.3 that the 41 incident occurred opposite to church in the lane of Rajivgandhi market and there is only one house by intervening to their house and her father’s residential house. Further it is the evidence of PW.5 she categorically stated in cross examination that she is own sister of
PW.2 and 3 and daughter of Devaraboina Durga Rao and that the scene of offence place is situated at the house of Devaraboina Durga
Rao it is opposite to the church and that there are two houses by intervening to the house of PW.1 and church.
45.Moreover it is the evidence of PW.8 VRO of Bantumilli his evidence goes to show that on 07.03.2020 at 12noon the ASI of police, Bantumilli called him to come to Rajivgandhi market colony on that they went to police station then after the said ASI of police took them to the said scene of offence place in police jeep. The scene of offence place is situated at in front of house of Deveraboina Durga
Rao. Wherein cross examination the PW.8 categorically stated that
VRO drafted the Ex.P2 scene observation report on the dictation of
Devaraboina Durga Rao and that when the PW.8 was at scene of offence place by the time police examined the surrounding neighbors of scene of offence place and also examined the said Devaraboina
Durga Rao and that the church of Durga Rao is situated at the distance of 3feet to the scene of offence place. So this portion of evidence coupled with Ex.P8 rough sketch which proves that the scene of offence placed is situated at the house of Devaraboina Durga
Rao and that the evidence of PW.8 clearly shows that Ex.P2 scene 42 observation report was drafted on the dictation of the said
Devaraboina Durga Rao by VRO (L.W11) and that the police was also examined the said Devaraboina Durga Rao in his presence. But it is the evidence of PW.12 in his cross examination that at the time of visiting the scene of offence place, Devaraboina Durga Rao was not present. So the evidence of PW.8 and 12 are not corroborating with each other with regard to the presence of Devaraboina Durga Rao at the time of drafting the Ex.P2 scene observation report.
46.Moreover as per the prosecution case the alleged offence occurred at the house of Devaraboina Durga Rao who is very crucial witness to prove the case of prosecution. But whereas the list of prosecution witnesses does not disclose the name of Devaraboina
Durga Rao and that the prosecution has failed to examine the said
Devaraboina Durga Rao as witness to prove the case of prosecution.
So the reasons best known to the prosecution for not showing the said crucial witness namely Devaraboina Durga Rao. So in the absence of non examination of material witness it is fatal to the prosecution case and creates an inference over the case of the prosecution.
47.In addition to that according to the case of the prosecution that the scene of offence place is situated at in front of the house of Daveraboina Durgarao. On that as seen the oral testimony of..W8 that the scene of offence place is situated at in front of the house of Devarboina Durgarao. During the cross examination 43 the PW.8 categorically stated that the house of the said Deveraboina
Durgarao is situated at the distance of 3 feet to his church. Further the house of P.W1 is situated at the distance of 10 meters to the scene of offence place, but whereas the evidence of P.W3 who is daughter of the said Deveraboina Durgarao goes to show in her cross examination that their house is situated by intervening one house to the house of Deverboina Durgarao, further the incident occurred in opposite to church of RajeevGandhi Market colony and she has no idea about the distance between their residential house to the said church. So this portion of evidence goes to show that as per the version of P.W3 that the alleged incident occurred in opposite to church, but whereas the case of P.W8 that the alleged incident occurred in front of the residential house of Deverboina Durgarao. It is also the evidence of P.W4 in the cross examination that the house of P.W1 is situated by intervening four houses to the church and the residential house of Deveraboina Durgara is situated at in opposite to church. It is also the evidence of P.W5 in the cross examination that the scene of offence place is situated at residential house it is opposite to church of her father namely Deveraboina Durgarao. On the other hand it is the evidence of P.W6 in his cross examination that the house of P.W1 is situated by intervening two houses to the scene of offence place. In contra to that it is the evidence of P.W12 in the cross examination that the house of P.W1 is abutting to the church of Deveraboina Durgarao and the church is situated behind 44 the house of Deveraboina Durgarao. So there is inconsistency in the evidence of prosecution witnesses in regard to scene of offence place and where the house of P.W1 is situated.
48.On the other hand the learned counsel for the accused argued that PW.2 is the own brother in law of PW.1 who is none other than the younger brother of PW.3 and 5, LW.4 is the husband of elder sister of PW.1, LW.5 is own younger brother of
PW.1. Further that PW.5 (LW.6) is the wife of one Nakka Siva and the PW.6 (LW.7) is the brother of the said Nakka Siva. PW.7 (LW.8) is the wife of PW.6. So all these witnesses are the relatives of PW.1 and 3 and interest witnesses. Moreover their houses are not situated near to the scene of offence place as if their houses are situated near to the scene of offence place either the PW.12 or PW.13 must have shown their names in Ex.P8 rough sketch. But Ex.P8 rough sketch does not disclose their names, so it presumes that the houses of
PW.4 to 7 are not situated near to the scene of offence place and that whatever the names of neighbors at scene of offence place were shown in Ex.P8, those persons were not shown as witnesses in the charge sheet and examine them to prove the case of prosecution.
49.Further it is fact that PW.1 is the 2nd accused, PW.3 is the 1st accused and PW.2 is the 3rd accused, one Tamtam Ramesh,
Mathi Bharathi, Ramulu and Timothy are shown as A4 to A7 in
Cr.No.99/2020 which was registered basing on the report given by
A5. Further it is fact that on 13.01.2020 the wife of A1 namely 45
Miriyala Rani lodged report against the husband of PW.5 namely
Nakka Siva and PW.5 to 7, for that a case was registered in
Cr.No.16/2020 under Sections 447, 323, 290, 506 r/w 34 IPC which proved under Ex.D9 and the said case was numbered as CC
No.341/2020 which is pending before Bantumilli Judicial First Class
Magistrate Court, in the said CC the PW.1 hear in deposed as
witness as PW.3, so that the PW.1 to 3, 5 to 7 are the accused in the aforesaid crimes as such they can suppress the genesis of the occurrence of the alleged incident by deposing false evidence against the accused as such the evidence of PW.1 to 3, 5 to 7 cannot be considered unless and until their evidence should be corroboration with the material witnesses of the neighbors who witnessed the alleged incident, but the prosecution has failed to examine the persons who are shown in Ex.P8 rough sketch. Further if LW.4 to 9 are present at the time of occurrence of the alleged incident, certainly the PW.1 could have said their names in the Ex.P1 statement but, the entire Ex.P1 statement is kept silent. So it can presume that the
PW.4 to 9 are shown as witnesses though they were not witnessed the incident. Further A1, A5, A7, A10 are implicated in the present case for the reason that A1 and A5 filed the cases against PW.1 to 3, 5 to 7 and that police registered the false case against the accused by the influence of husband of PW.5 as he is follower of sitting MLA,
Pedana constituency.
50.At this juncture as seen the cross examination of 46
PW.1 he categorically stated that PW.2 is his brother in law who is younger brother of PW.3 and PW.5 and that LW.5 is the younger brother who is resident of Kaikaluru and that LW.4 is resident of
Kaikaluru. So it implies that LW.4 and 5 are not residing at scene of offence locality. Further it is the stray admission of PW.1 in the cross examination that he did not invite LW.4 and 5 to his daughter’s maturity function and that LW.5 was not present along with the
PW.1 on 06.03.2020. Thus this portion of evidence clearly shows that on the date of alleged incident on 06.03.2020 the LW.4 and 5 were not at scene of offence locality, as such the presence of LW.4 and 5 is highly doubtful at scene of offence place at the time of occurrence of the alleged incident. Further it is the evidence of PW.1 that after received injuries he fell down then the neighbors ie., LW.4,
LW.5, PW.4 to 7 were gathered and on seeing them, the accused escaped from there, so according to the version of PW.1 that LW.4,
LW.5, PW.4 to 7 are neighbors of the scene of offence place and who witnessed the occurrence of the alleged incident. So if LW.4, LW.5 and PW.4 to 7 are witnessed the alleged incident, certainly the PW.1 must have stated the said fact in his statement of Ex.P1. But whereas the entire statement of Ex.P1 is kept silent about the presence of LW.4, LW.5 and PW.4 to 7 at the time of occurrence of the alleged incident and witnessed the alleged incident. But wherein cross examination the PW.1 denied the suggestion that he did not state in 161 Cr.P.C and Ex.P1 statement of report about the presence 47 of LW.4, 5, PW.4 to 7 and witnessed the incident. On the other hand as seen the cross examination of PW.12, he categorically stated that the PW.1 did not state in 161 Cr.P.C statement that after received the injuries, PW.1 fell down then the neighbors LW.4, 5, PW.4 to 7 were gathered and on seeing them, the accused escaped from there.
So the version of PW.1 is quite contrary to the version of PW.2 about the presence of LW.4, 5, PW.4 to 7 at the time of occurrence of incident.
51.Further it is the evidence of PW.1 in the cross examination that he denied the suggestion that the PW.1 and Nakka
Siva are cobrothers. Further it is the evidence of PW.1 that PW.5 is his own sister in law who is wife of Nakka Siva, if such is the case, certainly the PW.1 would have relationship with said Nakka Siva as cobrothers, but the PW.1 denied the said fact. So itself shows the demeanor of the PW.1. Further it is also the evidence of PW.1 in the cross examination that he has no relationship with PW.6 and he did not know that PW.6 is the younger brother of the said Nakka Siva and he did not know about PW.7 who is the wife of PW.6. But whereas the evidence of PW.2 in the cross examination goes to show that the said Nakka Siva is the husband of PW.5 and the PW.5 is own sister of PW.2 and 3 as well as sister in law of PW.1. PW.6 is the brother of Nakka Siva and that PW.7 is the wife of PW.6. So this portion of evidence proves that the PW.1 to 3, PW.5 to 7 are interrelated each other on relation, but the version of PW.1 that he 48 has no relationship with the PW.6 and PW.7 such version of PW.1 is not trustworthy and it goes to that the PW.1 has intentionally speaking false evidence in regard to the relationship with the PW.5 to 7.
52.In addition to that it is also the evidence of PW.3 who is own sister of PW.2 and PW.5, she deposed in the cross examination that she did not know Nakka Siva who is her relative, so itself shows that the PW.3 is also speaking false evidence to disclose the relationship with the Nakka Siva. In addition to that PW.5 who is own sister of PW.2 and PW.3, she categorically stated in her cross examination that PW.2 is her younger brother, PW.3 is her sister and one Nakka Siva is her husband, PW.6 is the brother of her husband,
PW.7 is the wife of PW.6, so itself proves that the PW.1 to 3 and PW.5 to 7 are relatives and it can be said that they are interest witnesses.
53.Further it is the evidence of PW.3 in the cross examination that the house of PW.6 (LW.7) is situated by intervening three houses to the house of PW.1 and 3 and that the house of
Nakka Siva and PW.6 are situated side by side. It is also the evidence of PW.1 in the cross examination that he did not know where the house of A1, A5, A7 and A10 are situated, but it is the evidence of
PW.4 that the house of A1 is situated by intervening six houses to the scene of offence place as the scene of offence place is situated opposite to the church of Durga Rao and the house of PW.1 is situated by intervening four houses to the said church. Further the 49 house of A5 is situated by intervening three houses to the scene of offence place, A7 house is situated by intervening five houses to the scene of offence place and A10 house is situated by intervening two houses to the scene of offence place. Further as seen the cross examination of PW.5, she categorically stated that their house is by intervening two houses to the A5 house and that there are three houses by intervening to the house of A1 and PW.6 as her house is abutting to the house of A7. Moreover it is the evidence of PW.1 in his chief examination that A1, A5, A7, A10 are their neighbors, so that the PW.1 got much knowledge about the houses of A1, A5, A7 and A10. But he is falsified that he did not know where the houses of the accused are situated and that the version of PW.1 in his chief examination contrary to the version in his cross examination and evidence of PW.4 and 5 in regarding to where the houses of accused are situated.
54.Further it is the evidence of PW.5 in the cross examination that her house is situated by intervening four houses to her house. So if the aforesaid evidence of PW.3 to 6 have been taken into consideration being neighbors of the scene of offence place, certainly their names should be shown as neighbors in Ex.P8 rough sketch by PW.12 or PW.13. But in pursuance of E.xP8 that the names of PW.4 to 7 were not found in Ex.P8 rough sketch as neighbors of the scene of offence place. Further it is the stray admission of PW.12 in the cross examination that the PW.4 to 7 and 50
LW.10 were not shown in Ex.P8 rough sketch as they are not neighbors to the scene of offence place. Further the PW.12 categorically admitted in the cross examination that he has not examined the persons who were shown in Ex.P5 rough sketch and that that PW.6 did not state in 161 Cr.P.C statement that his house is situated by intervening to three houses to the house of PW.1. So admittedly the prosecution has failed to examine the neighbors of the scene of offence place who were shown in Ex.P8 rough sketch.
Further there is no material evidence placed before the court to show that the houses of PW.4 to 7 are situated near to the scene of offence place. So in the absence of material evidence, it can rely on the oral testimony of P.W12 investigating officer as such there is no veracity on the oral testimonies of P.W 4 to 7 that they are the neighbors of the scene of offence place and witnessed the alleged incident.
55.On the other hand the learned counsel for the accused argued that the prosecution has failed to show or examine the Boddu Rangamma, Devaraboina Durgarao and the persons who were shown in Ex.P8 rough sketch, as such there is possibility of the prosecution not bringing on record real genesis of incident it cannot be ruled out, to that context the learned counsel for the accused rely upon the decision reported in AIR 2022 SC 1247 Khema alias
Khem Chnadra etc Vs State of Uttar Pradesh. Wherein the Hon’ble
Supreme court held in para No 29 that there are serious discrepancies and inconsistencies with regard to time of the injuries 51 sustained and time at which he was medically examined and that the medical officer has changed his stance on several occasions, his testimony in totally contrary to that of injured persons. As such the
Hon’ble apex court held that it will not be safe to base the conviction
on the sole testimony of injured though he is an injured witness, the corroboration sought by the prosecution with regard to alleged recoveries of the weapons used in the crime is also not free from doubt. Neither the station dairy entry with regard to telephonic intimation given by Vijaya sigh at 9.05 am has been brought on record nor has Vijaya Singh been examined, though independent witnesses were available, the prosecution has failed to examine them, so that it is clear finding that that it is the case wherein the appellant are entitled for benefit of doubt.
56.At this juncture it is held that in the present case also the evidence of P.W1 to 3 injured persons are not corroborated with the P.W11 medical officer for injuries sustained by them and that the prosecution has failed to examine the persons who were shown in E.xP8 rough sketch, Deveraboina Durgarao and Boddu
Rangamma, though they are the material witnesses who witnessed the alleged incident, further there are serious of inconsistencies and discrepancies in the evidence of P.W1 to 13 in regard to specific overt acts attributed by each individual accused towards P.W1 to 3 and also the injuries sustained the P.W1 and P.W2, thus there is possibility of the prosecution not bringing on record of real genesis of 52 the incident, A1, A5, A7 and A10 cannot be convicted by invoke decision stated supra.
57. Further it is an admitted fact that on 11.03.2020 the
PW.12 registered the Ex.D7 FIR in Cr.No.99/2020 basing on the
Ex.D8 statement of report given by A5 on 06.03.2020 which was recorded by PW.10 as spoken in their cross examination. Further it is the stray admission of PW.12 in their cross examination that as per Ex.D7 FIR, PW.3 is the 1st accused, PW.1 is the 2nd accused,
PW.2 is the 3rd accused, one Tamtam Ramesh brother of PW.1, Mathi
Bharathi, Ramulu and Timothy are shown as A4 to A7 in the said crime No.99/2020. But whereas the P.W1 to 4 denied in their cross examination about the registration of the crime No.99/2020 against the PW.1 to 3 and others, thus their version is contrary to the version of PW.12. In addition to that it is the stray admission of
PW.12 in the cross examination that on 13.01.2020 that one
Miriyala Rani wife of A1 lodged report against Nakka Siva, PW.5 to 7 on that a crime was registered as Cr.No.16/2020 under Sections 447, 323, 290, 506 r/w 34 IPC, the said FIR and report of the said
Miriyala Rani were marked as Ex.D9 and that the said crime
No.16/20 was numbered as CC No.341/2020 which is pending
before the Judicial First Class Magistrate of Bantumilli and it is also
the stray admission of PW.12 in the cross examination that the
PW.1 in the present case was deposed as evidence as PW.3 therein.
But the same was denied by PW.1 to 3 in their cross examination, so 53 the version of PW.1 to 3 are quite contrary to the version of PW.12, further the P.W5 to 7 were admitted in their cross examination about they are accused persons in the aforesaid crimes, it proves that the
P.W1 to 3 deposed false evidence in regard to registration of the afore said crimes against them and that having considering the Ex.D7 to
D9, it is an admitted fact that PW.1 to 3, 5 to 7 and one Nakka Siva who is the husband of PW.5 are accused in the aforesaid crimes, so they can speak false evidence against the accused as suggested by the learned counsel for the accused. Further the PW.2 to 7 are interrelated to PW.1 so they can speak evidence at the instance of
PW.1 to support the case of PW.1 by suppressing genesis of the occurrence of alleged incident. In addition to that the wife of A1
Miriyala Rani and wife of A5 Katta Premkumari are the own sisters who are the daughters of senior paternal uncle of PW.2, 3 and 5 as admitted by PW.2, 3 and 5 in their cross examination and that A5 and A7 are own brothers, A10 is the brothers son of A5 and A7 as such the accused persons are also related to PW.1 to 3, 5 to 7.
58.In addition to that it is the case of the prosecution and the contents of Ex.P1 statement of report goes to show that all the accused ie., A1 to A10 abused the PW.1 in vulgar language and beat the PW.1 indiscriminately with hands and legs. But whereas the investigation of PW.12 revealed that as per the statements of PW.1 to 7 that the remaining accused persons ie., A2 to A4, A6, A8 and A9 were not participated in the alleged commission of offence as such 54 the PW.12 has deleted the names of A2 to A4, A6, A8 and A9 from the crime record by issuance of notice to P.W1. The said fact was also disclosed in 161 Cr.P.C statements of PW.1, PW.2, PW.4 to 6, but whereas in their cross examination they denied the said fact to state
before the police in their 161 Cr.P.C statement, so their statements
are contrary to their earlier statement in 161 Cr.P.C statement as such the said contradictory statements of PW.1, PW.2, PW.4 to 6 are marked as Ex.D1 to D5. Further when the PW.1, PW.2, PW.4 to 6 denied their earlier statement in regarding to that the participation of remaining accused A2 to A4, A8 and A9 in the commission of alleged offence, it is duty of the prosecution to take steps for adding the remaining accused in the case but the prosecution did not take any steps and that it is also the evidence of PW.12 in the cross examination that as the PW.1, PW.2, PW.4 to 6 as stated as Ex.D1 to
D5 as such he deleted the names of A2, A3, A4 to A6, A8 and A9, thus the version of PW.12 is contrary to the version of PWs.1, PW.2,
PW.4 to 6 in regarding to the participation of remaining accused in the commission of alleged offence. Further when the prosecution is kept silent for taking steps to add the remaining accused, then it gives an inference on the evidence of P.W1, P.W2, P.W4 to 7 and it can rely upon the evidence of P.W12 to that regard.
59.In addition to that it is the evidence of PW.12
Investigating officer that after received the Ex.P1 statement of report and Ex.P4 hospital intimation on 07.03.2020 he registered the case 55 in Cr.No.79/2020 under Sections 324, 323, 290, 506 r/w 34 IPC and issued Ex.P7 FIR and on the same day he visited the Government hospital and recorded the statements of PW.1 to 3 at there then after he went to scene of offence place along with VROs and prepared
Ex.P8 rough sketch and also examined scene of offence place, where he found dried blood stains on the road of scene of offence place and that there were beer bottle pieces at the distance of one and half feet to the scene of offence place and he seized the broken beer bottle pieces in the presence of mediators by drafted Ex.P2 scene observation report. Further he also secured PW.4 to 7 and LW.10 and recorded their statements. So according to the version of PW.12 that initially he registered the case under Sections 324, 323, 290, 506 r/w 34 IPC. But whereas the evidence of PW.12 and 13 does not disclose on what basis of material evidence Section 307 IPC was added with the existing sections and that there is no material evidence placed before the court to that regard.
60.In addition to that it is the evidence of PW.13 in the cross examination that on 07.03.2020 the PW.12 added section of law under section 307 IPC with the existing sections and that Ex.P7
FIR was sent to the court on 08.03.2020, it is also stray admission of
PW.13 in the cross examination that as per Ex.P7 FIR only Sections 324, 323, 290, 506 r/w 34 IPC was registered and it is also the stray admission of PW.13 that prior to reach the Ex.P7 FIR, the said
Section 307 was added with the existing section, so this portion of 56 evidence proves that prior to Ex.P7 FIR reached to the court the alleged Section 307 IPC was added if such is the case, it is the duty of the PW.12 to send the alteration FIR by adding Section 307 IPC along with memo to the court, but on verification of the entire record there is no such alteration FIR filed by either PW.12 or PW.13 before the court and no such FIR was marked through the PW.12 and 13.
Further it is also the stray admission of PW.13 that Ex.P5 and P6 wound certificates were not disclosed anything that the injured persons were received injuries on their vital parts as to Ex.P5 and P6 wound certificates that the medical officer opined that the said injuries were simple in nature. Further it is also stray admission of
PW.13 that it was mentioned in page no.2 of the charge sheet that the injured person received injuries on their vital parts as such
Section 307 IPC was added but it is not at correct. So this portion of evidence of PW.13 goes to show that as there is no offence under section 307 I.P.C made out against the accused person but the said
Section 307 IPC was added unnecessarily in the charge sheet without having any ingredients under Section 307 IPC in the alleged commission of offence.
61.Further according to the version of PW.12 that he visited the scene of offence place along with VROs and seized the broken beer bottle pieces at scene of offence place. On the other hand the learned counsel for the accused argued that there is dump yard of scrap from the house of PW.1 in the scene of offence place as 57 such the said pieces of broken beer bottles always be available in the said dump yard and the PW.12 collected the said broken beer bottle pieces at dump yard in order to show as material object of this case except that, A7 never pocked the PW.1 with the said broken beer bottle pieces. At this juncture as seen the evidence of PW.8 who is the mediator and VRO of Bantumilli village is stated that when ASI (PW.12) called him to come to Rajivgandhi market colony, on that he went to police station then after ASI took them to the scene of offence place in police jeep and on the request of PW.12, he examined the scene of offence place and found blood stain on the earth of the road in front of the house of Devaraboina Durga Rao and ASI of police seized broken beer bottle at scene of offence place in their presence and PW.8 and LW.11 signed on the affixed slip of material object and also signed on Ex.P2 scene observation report, so according to the version of PW.8 that PW.12 seized the broken beer bottle but whereas the evidence of PW.12 goes to show that he seized the pieces of broken beer bottle and that whereas the oral testimonies of PW.1 to 7 goes to show that the A7 pocked the PW.1 with broken beer bottle. In addition to that Ex.P1 statement of PW.1 goes to show that while A7 pocked the PW.1 with piece of glass bottle on that the PW.1 kept aside and that the said piece of glass bottle, it scratched to the
PW.1 on his left side of stomach, so there is inconsistency in the evidence of PW.8 and 12 in regarding to seizure of MO.2 broken pieces of beer bottle. Further it is stray admission of PW.8 and PW.12 58 that there is scrap items dump yard in between the house of PW.1 and scene of offence place, so there is scope of that the said scraped pieces of beer bottles may be available on the road of the said dump yard and that how the PW.12 can ascertain that the said MO.2 pieces of beer bottle was used by the A7 to cause injury to PW.1 as there is no material evidence to show that MO.2 pieces of beer bottle was used by the A7 to cause the injury to PW.1. Further there is no such injury found on the left side stomach of PW.1 as stated by
PW.11, so that it can be said that whatever the MO.2 pieces of beer bottle are no way relating to the alleged commission of offence.
62.Moreover it is also the evidence of PW.13 that on 19.03.2020 at about 10.30am he has received credible information from the accused persons then he secured the mediators and proceeded to Rajivgandhi market colony, Bantumilli, there he found accused persons at the house of A1, and on seeing the police party, they tried to escape on that he caught hold them and enquired the accused persons in the presence of mediators, they revealed their names and confessed the commission of offence then all the four accused persons ie., A1, A5, A7 and A10 handed over weapons which were used by them in the commission of offence, then the PW.13 seized the material objects in the presence of mediators and arrested the accused and drafted the Ex.P9 mediators report. But whereas the evidence of PW.13 does not disclose that what are the material objects seized by the PW.13 from the possession of A1, A5, A7 and 59
A10 and that the entire contents of charge sheet is also kept silent in regard to that on the date of alleged arrest of A1, A5, A7 and A10, the
P.W13 was also seized the some material objects under the cover of mediators report. More over it is the case of PW.1 and 2 that they were handed over the white cut baniyan of PW.1 to PW.12 and PW.2 handed over his white colour striped shirt to PW.12 as well as it is also the evidence of PW.12 that he seized the broken beer bottle pieces under Ex.P2 scene observation report. But the prosecution has failed to produce the white colour stripe shirt of PW.2 which was alleged to be seized from PW.2 at the time of recording his statement by PW.12.
63.Moreover the learned counsel for the accused argued that either the P.W12 and P.W13 have not chose to send the M.O1 while colour cut buniyan of P.W1 to the RFSL for determination of blood stains thereon belonged to human blood or animal blood. At this juncture in pursuance of cross examination of P.W12, he categorically stated that he had not drafted any separate seizure nama at the time of seizing the blood stained cut baniyan of P.W1 and white colour shirt of P.W2 and he did not send the same to RFSL for determination of blood stains belonged to human blood or animal blood, further it is an admitted fact that the P.W12 did not collect dried blood stained earth at scene of offence place. So there is no evidence placed before this court to show that M.O1 blood stained whit cut banian belonged to the P.W1. On the other hand the learned 60 counsel for the accused rely upon the decision reported in 1989
Supp (2) SCC 21 Surinder singh Vs State of Punjab wherein the
Hon’ble supreme court held that the blood stains found on the knife
allegedly used for the commission of the offence were established to be human blood, but the Hon’ble supreme court rejected the prosecution theory on the ground that those blood stains on the knife were not shown to be of the same group as the blood of the deceased.
64.Further the learned counsel for the accused rely upon the decision reported in 1987 (3) SCC 480 Kansa Behera Vs State of Orissa. Wherein the Hon’ble Supreme court held that the recovery of a shirt or a dhoti with blood stains which according to the serologist’s report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased.
In the evidence of the investigating officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood, few small bloodstains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the bloodstains with the deceased. That evidence is absent and in view of the matter an inference would be drawn to the case of the prosecution.
65. In addition to that PW.9 who acted as mediator at 61 the time of drafting Ex.P9 mediators report, his some part of evidence goes to show in the same lines of evidence of PW.13 and that it is also the evidence of PW.13 that after PW.13 arrested the A1, A5, A7 and A10 then A1 showed the weapons to the SI of police on that the
SI of police seized the weapons from the bushes behind the house of
A1 and SI of police seized MO.3 axe, MO.4 ceiling fan iron rod, MO.5 bamboo stick in his presence and LW.11 as the LW.11 drafted the
Ex.P9 mediators report. So according to the version of PW.9 that
MO.3 to 5 were seized in the bushes behind the house of A1 but whereas the evidence of PW.13 goes to show that as the A1, A5, A7 and A10 are handed over the said material objects on that he seized the same from the possession of the said accused. Further it is also the evidence of PW.2 to 5 that there are no bushes behind the house of A1 as the house of A1 and the house of PW.1 are situated in residential locality, so there is inconsistency in the evidence of PW.9 and 13 in regarding to seizure of alleged MO.3 to 5 under Ex.P9 mediators report.
66.Further it is contention of the learned counsel for the accused that Bantumilli police station is situated within the distance of 2 Km to the scene of offence place and there is government hospital at Malleswaram village, it is abutting to Rajeev Gandhi
Market colony and private hospitals are also available at Bantumilli, further the government hospital of Machilipatnam is situated at distance of 40 Kilometers and one can go to Machilipatnam from the 62 scene of offence place by crossing the Bantumilli police station, but the P.W1 and P.W2 did not try to give report to Bantumilli police station, so itself creates an inference over the case of the prosecution as the police registered the false case against the accused persons with the influence of sitting MLA Pedana constituency as the husband of P.W5 namely Nakka Siva is the follower of the said MLA being YSRCP member and that on the same date of 6.3.2020 the
P.W10 also recorded the statement of A5 and P.W12 registered the case and issued FIR against the P.W1 to 3 and five others which is also marked as Ex.D8, but the police has not filed any charge sheet in the said crime till on this day due to influence of the said Nakka
Siva. On this aspect it is fact that there is government hospital at
Malleswaram village and one can reach to the Government Hospital
Machilipatnam by crossing Bantumilli police station as spoken by the prosecution witnesses in their cross examination, so who prevented the P.W1 to give report to Bantumilli police station as they went to government hospital Machilipatnam by crossing the
Bantumilli police station. Itself also creates an inference over the case of the prosecution.
67.Further it is an admitted fact that basing on the statement of A5 the P.W12 registered the case and issued Ex.D8 FIR against P.W1 to 3 and five others. On that it is the contention of the accused that when the prosecution case suffers from several 63 contradictions and infirmities, no specific assertion could be proved regarding the role and involvement of the accused persons, further certain actions of the complainant injured persons themselves are dubious, for instance admitting themselves in a Government hospital
Machilipatnam without proper cause, on that ground the accused cannot be convicted, on that the learned counsel for the accused rely upon the decision reported in Bannareddy and others Vs State of
Karnataka and others 2018 (5) SCC 790.
68.Further the learned counsel for the accused also rely upon the decision reported in Raghnath Rama Krishna and others
Vs State of Haryana and another, where in the Hon’ble Supreme court held that when both the parties made free fight as mob, so it is quite probable that the complainant party sustained injuries accidentally while being involved in a mob fight, so that the nature of injuries sustained by the complainant party would clearly suggest that such injuries could only be caused in a melee wherein mob of number of persons gathered at the place as projected by the defence, such injuries sustained by the complainant party could not be attributed to the accused in the circumstances of the alleged incident.
69.Further the learned counsel for the accused argued that whatever the confession statements of A1, A5, A7 and A10 recorded by P.W13 under Ex.P9, there is evidential value attached to 64 the said statement as it is hit by Section 25 of Indian Evidence Act.
On that it is an admitted fact as the P.W13 categorically stated that he recorded the confession statement of A1, A5, A7 and A10 under
Ex.P9 mediators report at the time of alleged arrest of the accused persons made by P.W13, so obviously it is hit by Section 25 of Indian
Evidence Act and no evidential value attached to the statement under Ex.P9 report.
70.On the other hand the learned counsel for the accused argued that when there are notable discrepancies between evidence of P.Ws.1 to 7, its raising serious doubts with regard to truth or accuracy of their evidence as such order of conviction of accused is not sustainable, to that context the learned counsel for the accused rely upon the decision reported in 2020 (2) ALD (crl) SC page 1 Chhota Ahirwar Vs State of Madhya Pradesh wherein the
Hon’ble Supreme court held that when there are some notable
discrepancies between the evidence of the complainant and P.W4 therein raises serious doubts with regard to the truth or accuracy of their evidence particularly in view of the enmity and preexisting family disputes between the parties, so the conviction imposed by the lower court is not sustainable and the same is set aside.
71.Further the learned counsel for the accused also rely upon the decision reported in 2018 (2) ALT (crl) 233 (SC)
Bhaskararao and others Vs State of Maharastra where in the
Hon’ble Supreme court held that taking note of the shortcomings and
65 discrepancies in the prosecution case coupled with the improvements and contradictions in the statements of prosecution witnesses, it cannot be said that the accused persons had really formed into an unlawful assembly and carried out an assault on the deceased that too with a view to kill him, so as to attract the provisions of criminal law. In the facts and circumstances of the case, it is abundantly clear that the guilt of the accused persons was not proved beyond all reasonable doubt.
72.So having considering the evidence of prosecution witnesses it can be said that there are serious discrepancies and contradictions between the evidence of P.W1 to P.W13 in regarding to all material aspects for occurrence of alleged incident and received the injuries by the P.W1 to P.W3, further the prosecution has failed to prove any common, premeditated or prearranged intention of the accused to attack against the P.W1, as to it can be seen from Section 307 of I.P.C that whoever does any act with the intention or knowledge, that such act would cause the death of any person, he would be guilty of murder.
73.In addition it is the observed by the Hon’ble supreme court in the case of VASUDEV Vs STATE OF M.P., 2022 SCC
OnLine SC 118, AIR Online 2022 SC 80, wherein the Hon’ble apex court pointed out the grave error committed by trial court and High court in convicting the appellant for the charge under Section 307/34 IPC read with Section 27 of Arms Act and allowed the appeal 66 reaffirming the essential ingredients of Section 307 IPC and observed that the prosecution is required to prove its case beyond reasonable doubt and conviction cannot be based merely on the basis of presumption to rule out the presence of accused.
74.On that it is held and It is fact that the P.W1 to 7 deposed different version in their oral testimonies before the court, their oral testimonies were not corroborated with their earlier statements, if a witness gives evidence in court a version of the incident which is materially different from their previous statement made to police, it is an error to brush the contradiction or omission amounts to contradiction aside as being unimportant. A material contradiction merits careful consideration in determining whether witness is truthful and reliance can be placed on their evidence.
Therefore, the court holds that the P.W1 to 7 has not come to the court with clean hands. Distorted version has come into evidence thereby destroying the entire prosecution case.
75.Further it is settled law that when there are serious material contradictions fallen in the oral testimonies of P.W1 to P.W7 in regard to specific overt acts of individual accused towards of P.W1 to P.W3 and witnessed the incident and such serious material contradiction cannot be overlooked, it should be considered and give benefit of doubt to the accused case, when the prosecution has failed to establish guilt of the accused beyond all reasonable doubt, so on the ground the accused persons cannot be convicted by invoke the 67 decisions submitted by learned counsel for the accused in
Bannareddy and Others Vs State of Karnataka & Others 2018(5)
SCC 790 and AIR 2022 SC 1247 Khema alias Khem Chnadra etc
Vs State of Uttar Pradesh.
76.So considering all these circumstances, it is not safe to place an implicit reliance on the evidence of P.W1 to P.W.7, admittedly they are inter related each other on relationship and also accused persons in Cr. No 99/2020 and 16/2020, so their evidence cannot be put into the category of wholly reliable. Then, in such circumstance their evidence requires corroboration. But there is no other evidence to show that the occurrence had taken place in the manner as projected by the prosecution. P.W12 and P.W13 did not examine any independent witnesses who were shown in the Ex.P8 rough sketch as to the alleged commission of offence occurred at the residential house of Deveraboina Durgarao who is none other than the father in law of P.W1 and father of P.W2, P.W3 and P.W5, further it is the case of the prosecution that the alleged incident occurred while the P.W1 questioning one Boddu Rangamma, in the mean time the accused persons came there and alleged to be attacked the P.W1 to P.W3, but the prosecution has failed show and examine the said material witnesses namely Devaraboina Durgarao and Boddu
Rangamma. It is not as if the other independent witnesses did not witness the incident. Similarly, it is not the case of the P.W12 that at the time of conducting investigation no independent witness has 68 come forward to speak about the incident. On the other hand the learned APP argued that the oral testimonies of the P.W4 eye witnesses cannot be thrown out on the ground of alleged inconsistency, but in this case no independent witness of eye witnesses were cited and examined by P.W.12, so the version of learned APP contrary to the witnesses examined by the prosecution.
77.Further, it a perfunctory investigation has been conducted by the investigating officer P.W.12 and P.W13 as they have not conducted the investigation in accordance with law. They have not taken any effective steps to conduct the investigation in correct lines. So in view of the perfunctory investigation of P.W12 and
P.W13 that P.W1 to P.W.7 suppressed the genesis of the occurrence as being accused persons in Cr.No.99/2020 and 16/2020 and that they did not state the specific over acts of the accused towards P.W1 to P.W3 in their earliest statement, In these circumstances when the evidence of P.W1 to P.W7 are suffering with many infirmities, discrepancies, contradiction no evidentiary value can be attached to their testimonies as their evidence thoroughly shaken during the cross examination. So that the crucial elicitations made by the defense counsel goes deeper to the route of the prosecution case and created doubt over the evidence of P.W1 to P.W7.
78.In the light of above discussion this court has no hesitation to arrive at conclusion as the prosecution failed to establish that accused made an attempt to kill the P.W1 by deadly 69 weapons, also caused voluntarily hurt to P.W1, P.W2 and simple hurt to P.W3 and accused also abused them in vulgar language by threatening them with dire consequences in furtherance of common intention beyond all reasonable doubt. For the reasons stated supra the A1, A5, A7 and A10 are entitled for benefit of doubt. Accordingly,
I answered this point against the prosecution.
79.In the result, the court found that the A1, A5, A7 and
A10 are not guilty for the offences punishable under Sections 307, 324, 323, 290, 506 r/w 34 of IPC, as such accused are acquitted under Section 235(1) of Cr.P.C, the bail bonds executed by the accused shall remain in force for a period of six months as per
Section 437A of Cr.P.C., MO.1 blood stained white colour cut baniyan, MO.2 pieces of broken beer bottle, MO.3 axe, MO.4 ceiling fan iron rod and MO.5 stick are ordered to be destroyed after expiry of appeal time.
Directly typed by stenographer to my dictation on computer, corrected and pronounced by me in the Open Court, this the 12th day of June, 2023.
Sd/ K ARUNA
Additional Assistant Sessions Judge,
Machilipatnam.
APPENDIX OF EVIDENCE
Witnesses examined for prosecution PW.1: T.Shankar PW.2: D.Prema Raju PW.3: T.Ratna Kumari PW.4: S.Naga Raju PW.5: N.Dina Kumari PW.6: N.Seshu PW.7: N.Yesumani PW.8: C.Kumar 70
PW.9: B.Nagaraju PW.10: K.Venkateswara Rao PW.11: T.Harish PW.12: Z.Baig PW.13: M.T.Rama Krishna
Witnesses examined for accused None
Documents marked for prosecution Ex.P1: Statement of report of PW.1 Ex.P2: Scene observation report Ex.P3: Signature of PW.9 on mediators report Ex.P4: Hospital intimation Ex.P5: Wound certificate of PW.1 Ex.P6: Wound certificate of PW.2 Ex.P7: Original First Information Report Ex.P8: Rough sketch Ex.P9: Mediators report dt.19.03.2020
Documents marked for accused Ex.D1: Underline portion of 161 Cr.P.C statement of LW.1 Ex.D2: Underline portion of 161 Cr.P.C statement of PW.2 Ex.D3: Underline portion of 161 Cr.P.C statement of PW.5 Ex.D4: Underline portion of 161 Cr.P.C statement of PW.4 Ex.D5: Underline portion of 161 Cr.P.C statement of PW.6 Ex.D6: Endorsement of doctor on the statement in FIR 99/2020 of Bantumilli Ex.D7: Certified copy of FIR No.99/2020 of Bantumilli police station Ex.D8: Certified copy of statement of A5 in FIR No.99/2020 Ex.D9: Certified copy of FIR No.16/2020 along with statement of report
Material objects marked for prosecution MO.1: Blood stain white colour cut buniyan MO.2: Broken beer bottle pieces MO.3: Axe MO.4: Ceiling fan iron rod MO.5: Stick.
Sd/ K ARUNA
AASJ, MTM.