IN THE COURT OF SESSIONS: METROPOLITAN
DIVISION: VIJAYAWADA .
IN THE COURT OF THE VIII ADDL.DISTRICT.& SESSIONS JUDGE,
(FAST TRACK COURT) VIJAYAWADA.
Present: Smt.J.Sri Lakshmi B.Sc.,M.A.,B.L., VIII Addl.Dist & Sessions Judge, (FTC) Vijayawada.
Wednesday, the 20th day of February, 2013.
SESSIONS CASE NO.102 /2012.
(P.R.C.No.61/2011 on the file of I Metropolitan Magistrate’s Court, Vijayawada ) 1.Nameofthe State: Rep. by. Sub-Inspector of complainantPolice, Penamaluru P.S. Vijayawada. …….Complainant 2.Name of the Accused:1. BantumilliAppala Naidu, S/o.Raminayudu,22years, Turpukapu, Ganguru, Penamaluru Mandal.
2.BantumilliRamiNaidu, S/o.Narasimha,50years, Turpukapu, Kanuru, Penamaluru Mandal. 3.Syed Karimullah, S/o.Syed Isaac, 33years,Muslim,Kanuru Panchayat, Penamaluru Mandal. 4.Shaik Masthan, S/o.Akbar, 33 years, Sanath Nagar, Penamaluru.
3. Section of Law:Charge U/S.302 r/w.34 IPC 4.Plea of the accused: NOT GUILTY.
5. Finding of the court:NOT GUILTY.
6. Sentence or order:In the result, the accused 1 to 4 are found not guilty U/s.235 (1) Cr.P.c. for the offence punishable U/s.302 r/w.34 IPC and they are set at liberty. Their bail bonds shall stand cancelled. The MOs.1 to 9 shall be destroyed after expiry of appeal period.
This Sessions Case is coming on for hearing before me on this day i.e., 12-02-2013 in the presence of Addl. Public Prosecutor, Vijayawada, and of Sri.Karnati Rama Mohana Rao, Sri.S.M. Vali, and Sri.Md. Khaliullah, Advocates for Accused 1 to 4 and upon consideration of the material on record, and the matter having stood over till this day for consideration, the court delivered the following:
J U D G M E N T
1.Station House Officer, Penamaluru P.S. Vijayawada city laid the charge sheet against accused 1 to 4 before I Metropolitan Magistrate in
Crime No.19/2010 for the offence punishable U/S.302 r/w.34 IPC.
2.The material allegations in the charge sheet are that one Moka
Venkateswara Rao @ Raju is the deceased in this case in the hands of the accused. The deceased is the native of Nalli village of Nagayalanka
Mandal. About 10 years back the deceased came down to Vijayawada and working as Carpenter in the lorry body building shed in Autonagar,
Vijayawada. He is residing in D.No.16-32-32, Siddique Nagar, within the limits of Penamaluru P.S. The deceased went to his native place Naali and also in laws village Penumudi on 13.1.10 in view of Sankranthi festival. On 17.1.10 evening at 5 p.m. the deceased returned home at Siddique Nagar, he went to bazaar purchased vegetables, rice and handover to his wife. At about 5.30 p.m. the deceased left the house saying that he would come in short time. At about 7 p.m. the deceased went to DNR wines to consume liquor i.e., near mobile cart of Chicken pakodi in front of DNR wines shop
Rekula Mosque road, Sanath Nagar, UC tea centre. At that time the accused were also present for consuming liquor, there was tussle and scuffle occurred when they were in drunken state following scuffle and altercation. The deceased beat A2 Ramulu on the head with stone and caused injury. All the accused pounced on the deceased. A3 and A4 caught hold of the accused and A1 broken the cool drink bottle and stabbed with it on the throat of the deceased indiscriminately. The deceased sustained heavy bleeding injury on the throat and died instantaneously. Later the accused absconded. Basing on the report of Yedukondalu, the inspector of police, Penamaluru P.S. registered the case as FIR in crime No.19/10 and investigated into. The inspector of police visited the scene, inspected the scene and prepared rough sketch of the scene, got observation report of the scene drafted by the mediators, got photographed the scene and also video graphed the scene by clues team, he held inquest over the dead body of the deceased in the presence of panchayatdars at the Government hospital, Vijayawada and sent the body to the Government hospital for postmortem,to know the cause of the death of the deceased. The inspector of police collected material evidence, he arrested the accused 1 to 3 on 18.1.10 in the presence of mediators and got their confession recorded by the mediators in pursuance of the confession of the accused, the inspector of police recovered cloths of the accused containing the blood of the deceased from the house of A2 under the cover of mahazar. A4 arrested on 16.4.10. Dr.G.Sivarami Reddy, Professor, Siddhartha Medical College,
Vijayawada conducted autopsy over the dead body of the deceased, he preserved material objects from the deceased for analysis. Accordingly the same were forwarded under the letter of advice for analysis and the CE’s reports are received. The accused are liable for punishment U/s.302 r/w.34
IPC for the offences of committing murder on the life of the deceased with their common intention.Hence, the charge.
3.The learned Magistrate has committed the case U/s.209 Cr.P.C. to the court of Metropolitan Sessions Judge, Vijayawada as per the orders in
P.R.C.61/2011.
4.Hon’ble Metropolitan Sessions Judge has made over the case to this court for proceeding further.
5.On appearance of the accused before this court, they were examined
U/s.228 (2) Cr.P.C. framing the charge for the offence punishable U/s.302 r/w.34 IPC, read over the contents and explained in Telugu, the Accused 1 to 4 pleaded not guilty and claimed to be tried.
6.In order to establish the case, the prosecution has examined PWs1 to 12 and got marked Exs.P1 to P16 and MOs.1 to 9 on its behalf.
7.After closure of the prosecution evidence, the examination U/s 313
Cr.P.C. was commenced on 05.02.13 for the incriminating circumstances appearing against them in the evidence of prosecution witness, they denied the same and no witnesses examined nor marked any documents on behalf of accused.
8.Heard arguments on both sides. Perused the material available on record.
9.Now the point for determination is that:
Whether the prosecution has established the guilt of the accused for the offence punishable U/s.302 r/w.34 IPC beyond all reasonable doubt?
P O I N T:
10.The PW1 who is the ward member, PW2 is the father of the deceased, PW3 is the wife of the deceased, PW4 is the cashier, who worked in DNR wines as eye witness to the alleged offence, PW5 is the
RMP doctor, who examined the injured i.e., the A2, PW6 is Head constable of clues team, PW7 is the VRO of Kanuru, who was present at the time of observing the scene, PW8 is another VRO-4, Kanuru, he was present at the time of inquest and also at the time of observing the scene, PW9
Dr.G.Sivarami Reddy, who conducted the autopsy over the dead body of the deceased, PW10 is the inspector of police, who investigated the matter, PW11 is the constable who was present at the time of observing the scene and photographed the scene, PW12 is the Dr.S.Vijendra Babu, who is a Casuality Medical Officer, Government hospital, Vijayawada examined the injured/accused and issued wound certificates.
11.The prosecution has examined the defacto complainant PW1 by name Sykam Yedukondalu, he has deposed before the court that on 17.1.10 at about 7 p.m. he went to UC tea stall, there he found opposite to
DNR wines many people are gathered with a curiosity what happened there, he went near the public and found that one person by name Moka
Raju laying on the ground in a pool of blood, his face is down towards the earth, he had also found one lady weeping near the dead body of the deceased, he enquired near by one person by name Prasad who is selling the fish near the wine shop on a mobile cart, then he informed him that all the accused i.e., Servicing Ramulu and his son Appalanaidu, one
Karimullah and Masthan as well as the deceased Moka Raju altercated with each other and in the said altercation Appalanaidu broken one glass bottle and with that broken glass bottle cut the throat of deceased, on hearing the same then immediately he telephoned to CI of Police, Penamaluru P.S.
about the incident, later the police came to the scene and asked him to come to the police station to given report to the police, then he went to police station and given a report to the police Ex.P1.
12.PW2 Moka Nageswara Rao, who is no other than the father of the deceased and the said Nageswara Rao who was present at Repalli in devotional meeting, he received telephone call at 7.30 p.m. from one Yesu
Babu informing him that four persons killed his son and he also not went to the scene of offence with a fear and informing the same to him.
Immediately he along with his wife came to Vijayawada from Repalli directly by informing to his relatives about the murder of his son and he found the dead body of the deceased with injuries, the dead body was removed from the scene by the police to the Government hospital,
Vijayawada, on the next day after the postmortem the inquest held over the dead body of the deceased and police examined him and recorded his statement. The PW2 identified the dead body is his son.
13.PW3 Moka Mani who is no other than the wife of deceased, she has categorically deposed that herself and her husband went to Penumudi for pongal festival on 17.1.10, herself and her husband returned to
Vijayawada at 5 p.m. after keeping the luggage in the house and he went to the market by bringing rice, vegetables, milk packet, again he returned back to the house along with the above said saman, immediately he had a cup of tea and left the house at 6 p.m. by saying that he will bring fried fish from the bazaar and asked her to prepare food, her husband did not return back as he said, but one unknown boy came on cycle to her house and informed her that her husband and some other people are altercating with each other near bar and her husband having bleeding injuries on his person, immediately she rushed to the scene of offence, all the four accused were present at the scene and crying loudly as Champeyandira, champeyandira. Out of four persons two persons were caught hold of the hands of the deceased and one person caught hold of the tuft of hair of her husband as her husband is having a long curling hair and one person cut the throat of her husband with a broken glass bottle. The public who gathered at the scene did not come forward to rescue her husband, but they are witnessing the offence. Somebody informed to PW1 Yedukondalu who is her relative rushed to the scene by then all the accused left the scene.
14.PW4 Dasari Nageswara Rao, cashier who worked in DNR wines at the time of alleged offence and the accused purchased liquor in their bar and they have taken a cool drink bottle from a pan shop near by DNR wines. All the accused and the deceased consumed the liquor and all of them altercated with each other near the fish fry mobile cart and he had seen the same through the glass from his cash counter. The father and son attacked the deceased. The said Nooka Raju fell down on the ground, he telephoned to the police and also 108 ambulance. The police came to the spot at 15 or 20 minutes, by then the deceased died.
15.PW5 B.Shareif, RMP doctor who gave first aid to the injured
Ramnaidu and the A2 is identified by PW5 as he accompanied to his hospital by A3 and A4.
16.PW6 T.Ramesh Babu, Head constable in clues team he has photographed the scene as Ex.P2, 10 positive photos and Ex.P3 are the corresponding negatives, Ex.P4 is the CD corresponding to the photos,
MO1 is the bloodstained broken glass pieces having letters as Leher are marked.
17.PW7 N.Vijay Kumar, VRO of Kanuru, he present at the time of observing the scene and the dead body also laying in pool of blood on the ground opposite to DNR wines in Sanath Nagar, Ex.P5 is the scene observation report and he can identify the glass pieces shown to him as identified, MO1 are the same glass pieces seized from the scene.
18.PW8, Ch.Srinivasa Rao, is another VRO who was also present at the time of observing the scene by the police at Sanathnagar colony, he found the deceased laying in a pool of blood and the police also conduct inquest over the dead body of the deceased on 18.1.10 and he was present at the time of inquest and also this witness accompanied the police on 18.1.10 to
Gosala centre, there they found A1 and A2 and on their confession the mediators report was drafted and in pursuance of the confession made by them, they lead them to their house at Durga apartments and from there they seized the material objects i.e., cloths. But this witness has not identified the cloths nor identified the accused as he confused and deposed that as A1 and A2 as Appalanaidu and Ramnaidu, later he has shown A2 and A3 and again he has shown A1 and A2. The marked portion of Exs.P6 and P7 are confession statements marked about the arrest and seizure of the property of A2 on the same day. The police also arrested another person i.e., A3 under the cover of Ex.P8.
19.PW9 Dr.G.Sivaramireddy, he has conducted the autopsy over the dead body of the deceased and found three laceration wounds in the throat on the right side neck, blood clots are present. The other organs are pale and no abnormalities, he received opinion from chemical analyst that he was of the opinion the cause of death due to cut throat injuries and its complications. The approximate time of death about 18 hours prior to postmortem examination. The postmortem concluded at 2 p.m. on 18.1.10 and commenced at 1 p.m. Ex.P9 is the postmortem report, Ex.P10 is the final opinion issued by him. The above said injury caused with broken glass bottle.
20.PW11 L.Lakshmana Rao, he is working in clues team as constable, he videographed the scene and handover the CD to the police.
21.PW12 is Dr. S.Vijendra Babu, who is working as CMO, Government
General hospital, he examined A1 by name Appalanaidu and found black scap forming abrasion lateral to right eye 1 cm. diameter and issued wound certificate Ex.P15 on the same day, he also examined A2 Ramnaidu and he found sutured wound vertical middle of frontal scalp and he was of the opinion that the injury is fresh and simple in nature, issued Ex.P16 wound certificate.
22.Apart from all these witnesses the investigating officer PW10 by name V.Vijaya Rao examined before the court, he has deposed that the
PW1 came to the police station and presented a report, then he registered the same as a case in Cr.No.19/10 U/s.302 r/w.34 IPC and issued FIR
Ex.P11. After issuing FIR he took up investigation and visited the scene, there he secured the presence of witnesses and also drafted the scene observation report as well as the seizure of broken cool drink glass pieces and collected control earth and bloodstain earth with the assistance of clues team, later he sent the dead body to the mortuary of Government hospital, Vijayawada on 18.01.10, he conducted inquest over the dead body of the deceased in the presence of panchayatdars PW7 and 8 and also got drafted Ex.D6 inquest report and there he secured the presence of
PWs2, 3 and 4 others and recorded the statements in his part-II CD. After completion of P.M. examination the cloths of the deceased also seized by him, those cloths are marked as MOs.2 to 5 and he secured the presence of PW4 and another and recorded the statements in his part-II CD, on 18.1.09 he arrested A1 and A2 and also A3 and seized the bloodstained cloths from A1 and A2 under the cover of Ex.P7, those cloths are marked as MOs.6 to 9 respectively. A3 was also arrested on the same day under the cover of Ex.P8 before sending them to judicial custody A1 and A2 were sent to the Government General hospital for medical examination; from there they were sent to judicial custody along with remand report. He secured the presence of PW5 and 6 and two others on 22.1.12 and recorded the statements in his part-II CD. Ex.P13 is the letter of advice,
Ex.P14 is the RFSL report received by him as the visera collected and material objects sent to RFSL on 8.2.10 through letter of advice. On 16.4.10 during the course of investigation the PW10 arrested A4 at his house and send him for judicial custody along with remand report. After completion of investigation he filed the charge sheet against the accused as lapse of 90 days. He filed the charge sheet against the accused without collecting the final report Ex.P10 and also RFSL report Ex.P14, later they were submitted before the court and his successor after return of the property from RFSL, he submitted the property to the court.
23.The prosecution has examined as many as 12 witnesses before the court and out of 12 witnesses, the PW2 is no other than the father of the deceased and he is not witnessed the incident only he came to know about the incident through somebody when he was at Repalle by attending the devotional meeting immediately after receipt of the information he came to Vijayawada to the scene of offence and found the dead body of the deceased at the scene, later he came to know about the offence how it was took place.
24.The other witness by name Moka Mani, who is no other than the wife of deceased, she has categorically stated before the police in her statement at the first instance that she came to know her husband was laying in a pool of blood at the scene, but she deposed before this court by changing her version that she is the eye witness for the incident and how it is occurred in the hands of 4 persons, she did not identified the 4 persons who were present in the court hall as she deposed that only out of 4 persons two persons were caught hold of the hands of the deceased and one person caught hold of the tuft of her husband and one person cut the throat of her husband with a broken glass bottle. The evidence of PW2 is of full of contradictions as she did not depose that as in Exs.D2 to D5 before the police.
25.The cross-examination of PW3 reveals that she did not observe from where the glass bottle brought by the accused as she was in tension mood, she did not observe the same. The witness has categorically deposed that the PW1 Yedukondalu who is her relative rushed to the scene by then all the accused left the scene. The said Yedukondalu examined the injured and found that he was dead.
26.The PW1 who is no other than the ward member of the said locality, he categorically deposed that he do not know whether his report discloses the motive for the murder and the presence of eye witnesses. His report
Ex.P1 discloses that the 4 accused person names are mentioned in the report but he did not know what exactly happened there as he did not witnessed the offence as one Prasad who was present at the time of the alleged incident as informed the said incident to the PW1, but unfortunately the said Prasad, who cited as LW2, the only witness who witnessed the alleged offence has not been examined before the court.
More over the PW3 who deposed before the court that PW1 is her relative but where as PW1 has deposed that he know the deceased is the caste person of him but he is not having any relation with them.
27.With regard to Ex.P1, the report given by PW1 is also doubtful, that the Ex.P1 is registered on 17.1.10 at 9 p.m. where as the PW1 in his cross- examination categorically deposed that he went to the police station at 9 p.m. to give report at about 10 p.m. he signed on the report as the writer of the station drafted his report on his dictation and obtained his signature.
The name of the scribe is not mentioned in Ex.P1. More over why the PW1 has not disclosed that Moka Raju, the deceased is a relative of him, where as PW3 has deposed that PW1 is their relative. The presence of the wife of deceased also not disclosed in Ex.P1 but the PW1 did not know when Moka
Raju wife came to the scene but she was present by the time, he went to the scene. The PW1 as per his evidence he went to the scene at 7 p.m. to take tea by then there are several persons are gathered at opposite to
DNR wines and out of curiosity he went nearer to the scene and found that the deceased laying in a pool of blood. So, the prosecution has not produced any eye witness before this court as PW1 did not witnessed the incident. The PW2 is only identified the deceased as his son and in his evidence the material contradictions Ex.D1 marked. The PW3 though she is not an eye witness to the offence she has categorically deposed that about the offence as if she saw the alleged offence, which was committed infront of her. But in the cross-examination of PW3 the contradictions which are marked as Exs.D2 to D5 are very much material to cut the root of the prosecution case.
28.The PW4 is the only person who alleged to have been witnessed the incident. In the cross-examination of PW4 has several discrepancies are arise as the cool drink bottle which was used by the accused is brought from the pan shop as purchased the cool drink bottle by the accused but he did not witnessed who purchased the cool drink bottle. The pan shop owner has not been examined by the prosecution and even in the rough sketch of the scene, which was marked as Ex.P12 did not discloses there is a pan shop near by the scene of offence nor near DNR wines. The cross- examination of PW4 reveals that the deceased was well built personality.
In the cross-examination by the counsel for A4, the PW4 has categorically deposed that he is witnessed the incident from the glass from his counter with the customers who are present near the cash counter also went outside after hearing the galata. So he can able to see what is happened but he cannot specifically say about the incident as many people gathered.
There is a contradictory version stated by PW4 in witnessing the alleged offence and more over the PW4 has further deposed in the cross that he is not come to the scene by leaving the cash counter. So what all he stated as he witnessed the alleged offence only from the cash counter situated in the bar. He further deposed that he telephoned to the police and also 108 ambulance where as PW1 has deposed that till he arrived to the scene nobody called the police and he called the police on his telephone and also 108 ambulance. The evidence of PW4 is much doubtful as the evidence which he deposed before this court is not a trustworthy evidence. As the
DNR wines having shutters and doors, there is only one entry to the shop along with him 2 other persons are also working in the said DNR wines at that time and 4 or 5 persons are standing near the cash counter at the time of incident around the DNR wines there is a compound wall having two doors, iron gate and the distance between the shop and compound wall gate and more over there is a compound wall which is height of 4 to 5 feet. In those circumstances this witness witnessing the alleged offence is highly not probable. Therefore his evidence should be scrutinized carefully with regard to the alleged offence. The prosecution has failed to produce the direct eye witness for the incident i.e., LW2 Prasad Rao for the reasons best known to them by simply filing a memo stating that whereabouts of him are not known to the prosecution. The witness who was cited in the charge sheet his caste was shown as Vysya community. Is it possible that a Vysya community person running a fried fish mobile cart is the question.
29.PW5 his evidence is not much helpful to the case of the prosecution and except saying that the injured Ramnaidu was brought by two persons and he gave first aid to the Ramnaidu for his bleeding injury and advising him to go to general hospital for treatment. This fact is also not deposed by PW5 before the police as he deposed in the cross-examination as the police did not asked him and he did not state that he advised the
Ramnaidu to go to general hospital for treatment. The Ramnaidu and two other persons were only first time attended the clinic of PW5, prior to that the person is not having acquaintance with them and more over these persons were not got identified through PW5 in test identification nor the prosecution did not conduct the test identification parade to identify the
A2, who has attended before him for his bleeding injury on the fore head.
30.PW6 evidence shows that he got photographed the scene and at length the witness was cross-examined about the laying of the street lights at the scene etc. facts which are elicited in favour of defence.
31.PW7, the VRO who was examined by the prosecution as a mediator at the time of observing the scene and in the cross-examination it is elicited in Ex.P5 the posterior of the deceased as mentioned in the report as “Gontu bagana lotuga rendu tegina gayalu unnavi” but the inquest report Ex.D6 reveals in Col.No.7 that there are three deep injuries as well as Ex.P9 the PM certificate also discloses that there are 3 injuries in the throat.
32.The PW8 who was present at the time of inquest and also observing the scene of offence he has categorically deposed that about the arrest of the accused and seizure of the cloths from the accused but he did not identified the cloths which were produced before this court as they were allegedly seized under the cover of Ex.P7.
The medical officer in his cross-examination has categorically deposed that there is only his oral evidence to show that the injuries caused to the deceased mostly possible with broken glass and more over the Ex.P9 discloses that the injuries can be caused by force by poking into throat.
33.The evidence of PW9 reveals that he has not mentioned in PM report about the irregular edges. It is also admitted by him in the cross- examination that laceration irregular and the antimortem external injuries are lacerated injuries and it is true the edges of the injuries might be irregular but the said fact is absence in Ex.P9 report.
34.The PW12 who is a medical officer examined the A1 and A2, he has issued the wound certificates Ex.P15 and P16 only on 3.12.12 and the medical officer also did not produce the accident register to show the cause that how the accused sustained the injuries. The injuries are also not measured by the doctor, the sutured wound may be cut injury or lacerated injury as the medical officer did not enquire who sutured the injury and how this injury sustained by him except mentioning in the certificate as assault. This evidence of medical officer is also not supporting the case of the prosecution and more over the prosecution has failed to establish why they have obtained the wound certificates only on 3.12.12 as the alleged offence and treatment given to the accused by medical officer on 19.1.10.
The prosecution has no explanation for the production of Ex.P15 and P16 by obtaining certificates on 3.12.12 from the medical officer.
35.The investigation of PW10 also reveals that the remand report which he submit before the court and in part-I CD that the deceased received injury on his throat and as well as in abdomen. It is clearly shows that how the investigation has done by the investigating officer. The part-I CD also discloses the same fact but there is no injury for the deceased on his abdomen except the three injuries in the throat. The opinion of the inquest panchayatdars also opined that A1 poked the deceased with broken cool drink bottle but not opined about other accused and more over inquest report in Col.No.7 it is clearly mentioned there are three deep cut injuries on the throat of the deceased. There is only poking by A1 into the throat of the deceased how the three injuries are sustained by the deceased is also unanswerable question. The investigating officer has deposed that the weapon used by A1 was thrown into drainage canal and it was not traced.
But where as Ex.P2 photo discloses that the drain was covered with stones with gaps. The investigating officer also failed to seize the broken glass which used for the commission of offence by the accused. The investigating officer has failed to explain why the A4 was arrested on 16.4.10 after a lapse of two months and there is no panchanama at the time of the arrest of A4. No mediators were present at the time of arrest of A4 except saying that he was arrested at his house on 16.4.10, nothing is disclosed in the charge sheet about the offences alleged against A4 and the arrest of the A4.
36.The learned Addl.P.P. has relied on several decisions with regard to the common intention of the accused, 1992 Lawpad SC 295 Jogindersingh, appellants vs. State of Haryana, respondents, 1953 Lawpad SC 27
Dilipsingh, appellant vs. State of Punjab, respondents, AIR 1976 SC 2027,
AIR 1981 SC 1021, the above three decisions are relied by the Addl.P.P.
about the common intention of the accused but there is no proof for common intention of the accused to murder the deceased and more over the later decision for motive, there is no motive for the alleged offence.
There is no iota of evidence on record to show that is there any motive for the alleged offence committed by the accused and therefore those decisions are not applicable to the present case on hand.
37.The learned counsel for the accused has at length argued about the charges framed against the accused as U/s.302 r/w.34 IPC.
38.According to the Sec.464 Cr.P.C. no finding, sentence or order by a court of competent jurisdiction shall be deemed in valid merely on the ground that no charge was framed or on the ground of no error, omission or irregularity in the charge including in misjoinder of charges, unless in the opinion of the court a failure of justice has infact been occasioned thereby. Thus if in framing the charge against the accused there was some technical defect, or error no benefit arises to the accused unless due to the defect error, in framing charge, in substantial injustice has been caused to the accused or accused has been prejudiced in getting justice. In the present case the charge is framed U/s.302 r/w.34 IPC and as I have already stated failed to establish the common intention of the accused and in my opinion there is no irregular or technicality in framing of the charge against the accused. The learned counsel for defence has also relied on a decision reported in 1988 (1) Crimes 343 Bhogaram, appellant vs. State of Punjab, respondent, the another decision reported in 1978 Crl.L.J. 238 Namdeo
Doulat Dayaguda and another, appellant vs. State of Maharastra, respondents. This decision was relied by the defence counsel with regard to the appreciation of evidence and also recovery of cloths with human blood from accused etc. facts. The another decision reported in 1975
Crl.L.J.1454. This also relied on the omission of a very serious nature which cannot be ignored by the court while exercising the worth of evidence produced at the trial, though the facts of the present case on hand are defers the principles laid down in the above decisions are applicable to the present case on hand.
39.The prosecution has failed to establish the guilt of the accused beyond reasonable doubt as shows that for the reasons unknown the police invariably commits lapses in not complying with the relevant provisions of law maticuously in every case when such lapses occur in a particular case the court is to be on guard to examine the ocular evidence, with more care in order to determine whether such ocular evidence is fully reliable and can be given credence despite such lapses on the part of the investigating agency. Where the ocular evidence is of a shaky nature and a lingering doubt comes to mind about such eye witness where, eye witness having not actual witnessed the occurrence these lapses committed by the investigating officer assume significance and the benefit of doubt has to be given in such a case to the accused.
40.The burden is on the prosecution to prove the guilt of the accused in a criminal case it is for the prosecution to affirmatively and satisfactorily established the guilt of an accused and it is not for him to prove his innocence because the presumption is that he is innocent until the contrary is clearly established, the burden of proof that the accused is guilty, is always on the prosecution. The evidence of a single witness can prove the case of the prosecution, but here no witness deposed including
PW4 in a right perspective manner in favour of the prosecution. The well known maxim that evidence has to be weighed and not counted has been given statutory placement in Sec.134 of Indian Evidence Act which provide as under. No beyond proof witness shall in any case require for proof in fact. Here the prosecution has failed to examine the material witness, who is an independent eye witness Prasada Rao LW2 and the witness who were produced before this court are not direct eye witnesses for the incident, though produced PW4 his evidence is shaky and not in favour of prosecution. In those circumstances, I am of the opinion that the prosecution has miserably failed to establish the guilt of the accused beyond reasonable doubt for the offences punishable U/s.302 r/w.34 IPC.
41.In the result, the accused 1 to 4 are found not guilty U/s.235 (1)
Cr.P.C. for the offence punishable U/s.302 r/w.34 IPC and they are set at liberty. Their bail bonds shall stand cancelled. The MOs.1 to 9 shall be destroyed after expiry of appeal period.
Dictated to the Personal Assistant, typed by him, corrected and
pronounced by me in the open court, this the 20th day of February, 2013.
VIII Addl. District & Sessions Judge,
(F.T.C) VIJAYAWADA.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For prosecution:For Defence:
PW1: Sykam Yedukondalu.NIL PW2: Moka Nageswara Rao. PW3: Moka Mani. PW4: Dasari Nageswara Rao. PW5: B.Shareif. PW6: T.Ramesh Babu. PW7: M.Vijaya Kumar. PW8: Ch.Srinivasa Rao. PW9: Dr.G.Sivaramireddy. PW10:V.Vijaya Rao. PW11:L.Lakshmana Rao. PW12:Vijendra Babu.
DOCUMENTS EXHIBITED FOR PROSECUTION
Ex.P1 Report given by PW1. Ex.P2Ten positive photos. Ex.P3Ten corresponding negatives. Ex.P4CD correspondence. Ex.P5Observation report. Ex.P6Mediators report. Ex.P7Mediators report. Ex.P8Mediators report. Ex.P9P.M. certificate. Ex.P10Final opinion. Ex.P11FIR. Ex.P12Rough sketch. Ex.P13Letter of advice. Ex.P14RFSL report. Ex.P15Wound certificate of B.Appalanaidu. Ex.P16Wound certificate.
Ex.D1Naligayam………...kalusukunnanu161 Cr.P.C. statement of PW2. Ex.D2Veerabarthanu………..vellipoyinadu161 Cr.P.C. statement of PW3. Ex.D3Emijarigindi……..….cheppinadu 161 Cr.P.C. statement of PW3. Ex.D4Nenu vatchesariki………icchinanu 161 Cr.P.C. statement of PW3. Ex.D5Patakakshalu emilevu------161 Cr.P.C. statement of PW3. Ex.D6Inquest report.
MOs. Marked
MO1Broken glass pieces. MOs2 to Full hands shirt, white full hands baniyan, 5maroon colour underwear, thick blue colour jeans pant. MOs6 to One cement colour shirt, bloodstained T- 9shirt and blue colour jean pant.
VIII Addl. District & Sessions Judge,
(F.T.C) VIJAYAWADA.
TABULAR FORM TO BE APPENDED TO THE JUDGMENT AS PER RULE
71 OF CRIMINAL RULES OF PRACTICE
Sessions Case No:102/2012 of VIII Addl. District & Sessions
Judge, (Fast Track Court), Vijayawada.
1. P.R.C.No: 61/2011 of I M.M. Court Vijayawada
2. Sessions Case No. : 102/2012. 3.Name and description of the : State: S.I. of Police, Complainant. Penamaluru P.S.
4. Name and description of : 1. Bantumilli Appala Naidu, the Accused:S/o.Raminayudu, 22 years, Turpukapu,Ganguru, Penamaluru Mandal.
2. Bantumilli Rami Naidu, S/o.Narasimha,50years, Turpukapu, Kanuru, Penamaluru Mandal. 3.Syed Karimullah, S/o.Syed Isaac, 33 years, Muslim, Kanuru Panchayat, Penamaluru Mandal. 4.Shaik Masthan, S/o.Akbar, 33 years,SanathNagar, Penamaluru.
5. Date of:
a) Offence: 17.01.2010.
b) Complaint: 17.01.2010.
c) Apprehension : 19.01.2010&16.04.2010. of the accused
d) Commencement : 20.12.2012. of trial
e) Closure of trial : 29.01.2013.
f) Sentence or order: 20.02.2013.
RESULT: - In the result, the accused 1 to 4 are found not guilty U/s.235 (1) Cr.P.c. for the offence punishable U/s.302 r/w.34 IPC and they are set at liberty. Their bail bonds shall stand cancelled. The MOs.1 to 9 shall be destroyed after expiry of appeal period. EXPLANATION FOR DELAY : This Sessions Case was taken on file on 07.04.2012 at the Metropolitan Sessions Court, Vijayawada and made over to this court. Charges were framed against the accused on 19.07.12. Trial Schedule was issued to be commenced from 20.12.12 and closed on 29.01.2013. PWs1 to 12 and Exs.P1 to P16 and Exs.D1 to D6 and MOs.1 to 9 are marked. Prosecution evidence is closed. The examination under 313 Cr.P.C. was commenced on 05.02.2013 and Judgment is pronounced on 20.02.2013. Hence, the delay.
VIII Addl. District & Sessions Judge,
VIJAYAWADA.
Copy submitted to:- The Registrar Judicial, High Court of A.P.,
HYDERABAD.
13.12.12
Police present. Accused present. Judgment pronounced (V.S). In the result, the accused is found not guilty of the offence U/s.307 IPC and he is acquitted U/s.235 (1) Cr.P.C. His bail bonds shall stand cancelled. He is set at liberty. The MOs.1 to 4 shall be destroyed after expiry of appeal period.
VIII ADSJ.