Allowed

D.Gattaiah at Satish, Kadapa Dt., v. the State of Telangana, Rep Pp.

Andhra Pradesh HC13 Aug 2020CRLA/1099/2015

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for murder. The High Court held that the sole eyewitness was not reliable due to inconsistencies regarding his presence and observations. The prosecution failed to prove guilt beyond reasonable doubt, leading to the acquittal of all five accused.

What did the court decide?

Conviction and sentence for offences under Sections 302, 149 and 201 IPC were set aside; appellants acquitted and set at liberty forthwith.

D.Gattaiah at Satish, Kadapa Dt., Vs the State of… — Cheque Dishonour | Andhra Pradesh HC (2020)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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AND

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HON’BLE SRI JUSTICE B.KRISHNA MOHAN

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Criminal Appeal No.1255 of 2012

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ORDER : ( Per Hon’ble Sri Justice C.Praveen Kumar)

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Originally, appellants, who are A1 to A5, were tried for the offences punishable under Sections 302, 149 and 201 I.P.C. for causing the death of one, Kotcherla Gopi on 19.11.2010 at Nellipudi by beating him with stems of drumstick tree, stones, hands and legs and thereafter, caused disappearance of the evidence. By its judgment dated 21.9.2012, the learned Principal Sessions Judge, East Godavari District, convicted all the five accused and sentenced each one of them to suffer imprisonment for life and to pay fine of Rs.500/- each, in default, to suffer Simple Imprisonment for one month for the offence punishable under Section 302 I.P.C.; convicted and sentenced each one of them to undergo Simple Imprisonment for a period of three years and to pay fine of Rs.100/- each, in default, to suffer Simple Imprisonment for one week for the offence punishable under Section 201 I.P.C.; and convicted and sentenced each one of them to

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undergo Simple Imprisonment for one month for the offence punishable under Section 149 I.P.C.

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The facts as culled out from the evidence of the prosecution witnesses are as under :

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A1 is the maternal uncle of P.W.3, while P.W.2 is the wife of the deceased. The deceased was a Carpenter by profession and used to work in Dasakayalapalli and surrounding villages by name Jambupatnam and Korukonda. It is said that the deceased used to go out for work and return back after 2 or 3 days. The deceased is said to have developed illegal contact with one Nagu, who is a resident of Jambupatnam and the said issue was placed before the maternal uncle of P.W.2.

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P.W.3 was examined as an eyewitness to the incident. According to him, about a year prior to giving evidence, he saw the deceased alive at Nellipudi centre when he went to his in-laws house. The deceased is said to have enquired P.W.3 about the availability of arrack. Later, P.W.3 parked the vehicle at the house of one Babu Rao (not examined) and then went to his in-laws’ house i.e., Yedila Saraswathi (not examined). It is said that P.W.3 also went to the arrack shop after parking the vehicle, consumed arrack and returned back to the house of Babu Rao. The deceased

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also came back to the house of A1, which is away to the house of A2, intervened by three houses. Later, P.W.3 claims to have gone to the house of one Jashuva, which was situated behind the house of A1. While the deceased and wife of A1 were discussing, A1 came to the house, by which time, A2, A3 and A4 were at the house of A1. At that time, A1 and the deceased quarreled. In the quarrel, A1 beat the deceased with hands, while the deceased abused A1 in filthy language. Later, the deceased was taken to the canal holding the filt of his shirt by A1 to A4. P.W.3 claims to have followed them to canal, where he noticed A1 beating the deceased with a stick on his shoulder and A2, A3 and A4 beating the deceased with drumstick tree stem and stones. Later, the accused removed clothes of the deceased, made him drown in the canal water. A1 to A4 are said to have threatened P.W.3 with dire consequences, if he discloses the incident to others. Immediately thereafter, he left the scene, went to the house of Saraswathi. He did not disclose the said fact to anybody due to fear of the accused.

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On 20.11.2012, when P.W.8 went to the ground near the canal of Nellipudi, he noticed the dead body of the deceased in the canal. Immediately, he rushed to the

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house of P.W.1, the V.R.O., and informed the said fact. On receiving the said information, P.W.1, along with P.W.8, went to Nellipudi canal and found dead body of the male person without clothes in the water of canal with injuries on both the shoulders. Pursuant thereto, both of them went to Gangavaram Police Station and lodged a report with P.W.11, the S.I. of Police. Ex.P1 is the said report. Basing on which a case in crime No.64 of 2010 came to be registered under Sections 302 and 201 I.P.C. Information about the registration of a crime was intimated to the C.I. of Police and copies of the F.I.R. were dispatched to concerned immediately. Ex.P11 is said to be the original of F.I.R. On the instructions of C.I. of Police, P.W.11, along with the staff, proceeded to the scene of offence to guard the same. Later, C.I. of Police came to Gangavaram Police Station, received copy of the F.I.R. and examined P.W.1. (It is to be noted here that the said C.I. of Police is not examined.) Photographs of the scene were also taken. Ex.P12 is the bunch of photos. C.I. of Police preserved a bottle of the water taken from the stream and seized the clothes suspected to be that of the deceased and also stones and drumstick branches, which were marked as M.Os.1 to 4. Ex.P13 is the rough sketch of the scene. Thereafter, he conducted inquest over the dead body in the presence of

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P.W.1 and others. Ex.P3 is the inquest report. The inquestdars opined that the death was due to injuries caused by blunt or heavy object. After completing the inquest proceedings, the body of the deceased was sent to postmortem examination. P.W.10, Civil Assistant Surgeon, Government Hospital, Addatheegala, conducted autopsy over the dead body on 21.11.2010 and issued Ex.P9 postmortem certificate. According to him, the injuries on the dead body are possible with M.Os.3 and 4 and the injuries were held to be sufficient in the ordinary course of nature to cause the death of the deceased.

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Since the body remained unidentified, the C.I. of Police gave Look Out Notice as well as radio message in the Police grid to obtain truth about the identity of the deceased. He also gave publicity by contacting local newspaper reporters. On 21.11.2010, the relatives of the deceased, namely, P.W.2 and others came to Gangavaram Police Station, contacted P.W.11 and identified the clothes of the deceased. Later, P.W.2 and others were taken to Primary Health Centre, Addatheegala, where they identified the body as that of the deceased.

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On 01.12.2010, on receipt of credible information about the accused, the C.I. of Police along with mediators

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P.W.1 and others rushed to the bus stop in Kamarajupeta Village and apprehended A1. Pursuant to the information given by A1, they went to the house of A2 and arrested A3 and A4 and recorded their confessional statements, as well as the statement of P.W.3. On 02.12.2010, on receipt of information, P.W.11, along with the staff, rushed to Korukonda Village, arrested A5 and sent all the accused for remand. It is said that on 23.12.2010, C.I. of Police filed a requisition before the Chief Judicial Magistrate, Rajahmundry for recording Section 164 Cr.P.C. statement of P.W.3 and accordingly, the same was recorded vide Ex.P4 on 31.12.2010.

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After collecting all the necessary documents, P.W.11 filed charge-sheet, which was taken on file as P.R.C. No.10 of 2011 on the file of the Judicial Magistrate of I Class, Rampachodavaram. On appearance of the accused, all the documents as required under Section 207 Cr.P.C. were furnished and later on it was committed to the Court of sessions under Section 209 Cr.P.C. On appearance of the accused, charges under Section 302, 149 and 201 I.P.C. came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.

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In support of its case, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P15. Out of 11 witnesses examined by the prosecution, P.Ws.4 to 6 and 9 did not support the prosecution case and were decaled hostile. After completing the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied and got examined D.Ws.1 to 3 in support of their plea.

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Believing the evidence of P.W.3, who was examined as eyewitness to the incident, the learned Sessions Judge convicted the accused as stated above. Challenging the same, the present appeal came to be filed.

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The learned counsel appearing for the appellants would contend that there is absolutely no legal evidence to connect the accused with the crime. According to her, the conduct of P.W.3, who was examined as eyewitness to the incident, appears to be highly unnatural. It is urged that his own evidence would show that there is no chance of he seeing the incident. On the other hand, they are indications to show that he never went to the house of Jashuva and even if he has gone there, he could not have

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witnessed the quarrel, which took place inside the house of A1, leave alone the incident near the canal. According to the counsel, the evidence of P.W.8 creates suspicion over the evidence of P.W.3, as his evidence would show that the house of Jashuva is away from the house of A1 and it is intervened by three houses. It is further pleaded that the evidence of P.W.7 also creates any amount of doubt with regard to the version given by P.W.3. Apart from all, it is urged that the evidence of Investigating Officer itself indicate that P.W.3 is set up as eyewitness to the incident for the reason that if really P.W.3 was in the Police Station on 20.11.2010 and if he has seen the incident, there was no necessity for the Police to visit Nellipudi Village on 22.11.2010 along with photograph of the deceased to elicit information regarding the movement in the village prior to his death. Having regard to the circumstances and failure on the part of the prosecution to examine Saraswathi, it is urged that the accused are entitled for the benefit of doubt.

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The same is opposed by the learned Public Prosecutor contending that the evidence of P.W.3 cannot be brushed aside due to minor inconsistencies in his evidence and that his evidence in all respects corroborates the medical evidence. Taking advantage of the answer given by the

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accused to a question in Section 313 Cr.P.C., it is urged that the presence of P.W.3 in the village and he visiting the house of Saraswathi, sleeping in the house of Saraswathi and leaving the house on the next day stands established. Having regard to the above, learned Public Prosecutor would contend that prosecution has proved its case beyond reasonable doubt and as such, the conviction and sentence imposed by the trial court requires no interference.

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The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt?

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It is to be noted here that the trial court convicted the accused mainly on the evidence of P.W.3. Before dealing with the evidence of P.W.3 it is to be noted that, out of 11 witnesses examined by the prosecution, P.Ws.4 to 6 and 9 did not support the prosecution case and they were treated hostile by the prosecution. P.W.8 was the Village Servant who noticed the dead body of the deceased in the canal on 20.11.2010 and informed about the same to V.R.O., who was examined as P.W.1. P.W.1, the V.R.O., set the law into motion by lodging the report with the Police. Apart from that, he acted as panch witness for all the police

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proceedings, including scene of offence panchanama, rough sketch, inquest and also arrest and seizure of the accused.

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P.W.2 is the wife of the deceased. She only deposed about the deceased leaving the house wearing blue colour shirt with checks on 18.11.2010. According to her, on 20.11.2010, herself along with paternal uncles went to the Police Station, where she identified the clothes of the deceased and later the body of the deceased at Primary Health Centre, Addatheegala. According to her, she claims to have informed the Police that her husband developed illicit contact with Nagu (A5) and that her men might have killed her husband. In the cross-examination it has been elicited that, herself and her husband are affectionate with each other and there were no disputes between them. However, she admits that whenever there is a problem, she used to inform the same to her maternal grand mother. She also admits that she does not know personally about the illicit contact between her husband and Nagu. Therefore, nothing turns out from the evidence of these two witnesses. As stated earlier, P.Ws.4 to 6 and 9 did not support the prosecution case and they were treated hostile by the prosecution.

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Coming to the evidence of P.W.7, he, in his evidence, deposed that, P.W.3 is the nephew of Saraswathi and that, himself and Saraswathi are living jointly. P.W.3 used to occasionally visit the house of Saraswathi. According to him, on 19.11.2010, P.W.3 slept in the house of Saraswathi during the night and in the morning of 20.11.2010, he left the house of Saraswathi. He admits that, P.W.3 did not disclose anything about the incident that took place near the canal. In the cross-examination of P.W.7, it has been elicited that there were disputes between P.W.3 and his wife and on 18.11.2010, the parents and brother of P.W.3 visited Nellipudi Village and left the Village on the same day night after settling the dispute. It was further elicited that, on 19.11.2010, A2 also accompanied P.W.3 and visited the house of Saraswathi and that, P.W.3 was in a drunken condition at that time, while A2 was in a normal condition. He admits that, P.W.3 and A2 slept in the house of Saraswathi up to 8.00 PM. It was further elicited that, after dinner, P.W.3 and A2 slept in the house of Saraswathi during night of 19.11.2010.

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Before dealing with the evidence of Investigating Officer and the admissions elicited in his evidence, we shall

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first deal with the evidence of P.W.3, who is the sole witness to speak about the incident.

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The question is, whether P.W.3 can be treated as wholly reliable evidence in the absence of any corroboration to his evidence?

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P.W.3 is a resident of Kamarajupeta and while in-laws’ place is Nellipudi. According to him, he knows all the accused. A2 is his senior paternal uncle, while A1 is his maternal uncle. His evidence in chief is to the effect that he noticed the deceased while he was alive at Nellipudi centre when he went to his in-laws’ house. The deceased enquired him about the availability of arrack and he informed him about the availability of arrack in the next street. Later, he parked the vehicle at the house of one Babu Rao and went to his in-laws’ house i.e., Saraswthi on the same vehicle. From there, he went to the place where arrack was available. By which time, the deceased was there. He consumed arrack and returned to the house of Babu Rao. It is said that the deceased also came to the house of A1, which is separated from the house of A2 by three houses. Later, P.W.3 claims to have gone to the house of one Jashuva (not examined) whose house is said to have been situated behind the house of A1. While the

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deceased and wife of A1 were discussing, A1 came there; by which time, A2 to A4 were at the house. There was a quarrel between A1 and the deceased. In the said quarrel, A1 beat the deceased with hands, while the deceased also abused A1 in filthy language. Later, the deceased was taken to the canal by A1 to A4, where A1 is said to have beat the deceased with stick on his shoulder and A2 to A4 beat the deceased with drumstick tree stem and stones. Later, they removed the clothes of the deceased and drowned the deceased in the canal water. He claims to have witnessed the entire incident from a distance. Seeing the P.W.3, A1 to A4 are said to have threatened P.W.3 with dire consequences, if he discloses the incident to others. Thereafter, P.W.3 claims to have gone to the house of Saraswathi, without disclosing this incident to anybody and on the next day, left the house of Saraswathi. He claims to have disclosed about the incident to the Police after two days when he was examined. This is the evidence-in-chief of P.W.3.

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In the cross-examination, P.W.3 admits that he was produced in the court for giving evidence from Central Jail on P.T. warrant. According to him, there were disputes between himself and his wife and the same was placed

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before the elders for obtaining customary divorce. According to him, A2 and his parents settled the matter and prepared a customary divorce deed. The house of Babu Rao - A2, and the house of A1 are intervened by three houses in the same route. To a suggestion that the house of A1 and the house of Babu Rao are intervened by three streets was denied by him. The canal where incident took place was at a distance of half a kilometer to the house of Jashuva, from where he witnessed the alleged incident. It will be useful to extract the relevant admission, which is as under :

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“The canal is at a distance of half kilometer to the house of Chirla Jashuva from where I witnessed the alleged incident.”

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To a suggestion that he is deposing false as the accused did not support the dispute between himself and his wife was denied. He admits that he is in judicial custody in connection with a criminal case filed against him for committing an offence of attempt to murder of a boy. He is under trial prisoner in the said case since last 72 days. According to him, between the house of Jashuva and the house of A1, there is a fencing. The distance between the house of Jashuva and the fencing is 10 feet.

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According to him, he witnessed the first incident that took place in the house of A1 by peeping through the window of the house of Jashuva. About two days after the incident, Police claim to have examined him; by then, he was at Nellipudi. On 18.11.2010, himself, A2 and his senior paternal uncle came to Nellipudi Village to settle the dispute between himself and his wife and parents returned to Kamarajupeta, while his brother went to Prathipadu. He claims to have left the vehicle at the house of Babu Rao, while returning to Kamarajupeta. He went back to Nellipudi on 19.11.2010 to shift his vehicle and reached Nellipudi at 12.00 AM. After taking the vehicle from the house of A2, P.W.3 claims to have gone to the house of Saraswathi and slept there till 8.00 PM. He slept in the house of Saraswathi even after 8.00 PM and woke up on the next day morning at 8.00 AM and returned to Kamarajupeta and reached Kamarajupeta at 9.00 AM on 20.11.2020. Again, on 20.11.2010, he went to Nellipudi at 1.00 PM; by which time, police officials were at Nellipudi and he was taken to Gangavaram Police Station. He was at Police Station, Gangavaram from 2.00 PM on 20.11.2010 and that he gave a statement to the Police about the murder of Gopi at 3.00 PM. According to him, the Constable and Sub-Inspector of Police alone were present

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at the time of recording the statement. He admits that he was detained in the Police Station during the night of 20.11.2010. Enquiries came to be made about two wheeler. It will be very much useful to extract this relevant portion in the evidence of P.W.3, which is as under :

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“On 18.11.2010 my parents, Baburao and my senior paternal uncle came to Nellipudi Village for settling the dispute between myself and my wife. After settling the dispute between myself and my wife, myself, my parents returned to Kamarajupeta and my brother went to Prathipadu. I left my vehicle at the house of Baburao while returning to Kamarajupeta along with my parents. I went to Nellipudi on 19.11.2010 to shift my vehicle and I reached Nellipudi at about 12.00 noon. After taking my vehicle from the house of A2, I went to the house of L.W.13 Saraswathi and slept there till 8.00 PM. I slept in the house of L.W.13 Saraswathi even after 8.00 PM. I woke up at 8.00 AM on the next day and returned to Kamarajupeta riding the same vehicle. I reached Kamarajupeta on 9.00 AM on 20.11.2010. Again I went to Nellipudi at 1.00 PM. By the time I reached Nellipudi Police officials were at Nellipudi and I was taken to Gangavaram Police Station from Nellipudi. I was at the Police Station Gangavaram by 2.00 PM on 20.11.2020. I gave statement to the police about the murder of Gopi. I gave statement to Sub Inspector of Police at about 3.00 P.M. Sub-Inspector of Police recorded my statement. The total time taken for statement is one hour. Constables and Sub-Inspector of Police alone were present at the time of recording my statement. I was confined in the Police Station during night of 20.11.2010. Police enquired me about details of two wheeler motorcycle and I informed that the vehicle belongs to my friend Giri, but did

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not enquire about the C-book of the vehicle. The police allowed me to leave the police station retaining the vehicle with them as I did not disclose the details of registration of the vehicle.”

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From the answers elicited in the cross-examination of P.W.3, who is the sole witness in this case, it is evident that there was a panchayat in Nellipudi Village with regard to disputes between himself and his wife. After the panchayat, he, along with his parents, left to Kamarajupeta. On the next day i.e., on 19.11.2010, he came back to Nellipudi village to shift his vehicle and reached the said village at 12.00 noon. After taking his vehicle from the house of A2, he went to the house of Saraswathi and slept there till 8.00 PM. His own admissions show that even after 8.00 PM, he slept in the house of Saraswathi and woke up at 8.00 AM on the next day and returned to Kamarajupeta, riding the same vehicle. Thereafter, on 20.11.2010, he came back to Nellipudi Village; by which time, Police were there, who took him to the Police Station, where he claims to have given a statement to the Police about the incident. He was also confined in the Police Station on the night of 20.11.2010.

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At this stage, two things are required to be noticed. First, the evidence of P.W.7, who stays in the house of

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Saraswathi, shows that on 19.11.2010, P.W.3 slept in the house of Saraswathi during night time and on the morning of 20.11.2010, he left the house. Further, he did not disclose about the incident that took place. Further, in the cross-examination of P.W.7, it has been elicited that on 19.11.2010, P.W.3 and A2 slept in the residence of Saraswathi up to 8.00 PM and after dinner, P.W.3 and A2 slept in the house of Saraswathi during night of 19.11.2010. Therefore, answers, elicited in the crossexamination of P.W.3 and in the cross-examination of P.W.7, no where indicate deceased going to the house of Jashuva. Further, the evidence in chief of P.W.3 is silent with regard to the time and date as to when he went to the house of Jashuva, from where he claims to have witnessed the incident.

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It is also to be noted here that, P.W.3 claims to have gone to the house of Jashuva and witnessed the incident/incidents through the window of the house of Jashuva, as the house of Jashuva is situated behind the house of A1. Firstly, if the house is situated behind the house of A1, it will be difficult to witness from the house as to what happened in the house of A1. Apart from that, the evidence of P.W.8, the Village Servant, shows that the

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house of Jashuva and the house of A1 were intervened by three streets. It will be useful to extract the relevant portion of the evidence of P.W.8, which is as under :

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“The house of Chirla Jashuva and the house of A1 intervened by three streets.”

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The admission of P.W.8, makes it very clear that P.W.3 could not have seen what happened in the house of A1, as three streets intervened the houses of Jashuva and A1.

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At this stage, learned Public Prosecutor would contend that there appears to be some mistake in the recording of the evidence, as suggestion given to P.W.3 that the house of Jashuva and house of A1 are separated by three streets was denied by him. But, no such clarification came to be elicited by the learned Public Prosecutor to the answers given by P.W.8. In fact, the case of the accused is that, the house of Jashuva and the house of A1 are separated by three streets, which fact, though denied by P.W.3, came to be elicited through P.W.8, the Village Servant of Nellipudi village. Even the rough sketch of the scene of offence, which is placed on record as Ex.P13, does not anywhere show the house of Jashuva.

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Coming to the evidence of Investigating Officer, one crucial circumstance which we intend to point out is that, on 22.11.2010, C.I. of Police, visited Nellipudi Village along with photograph of the deceased, to elicit information regarding the movement of deceased in the village prior to his death. He claims to have secured the presence of P.Ws.4 to 6 and recorded their statements. Basing on the evidence, he surprised the house of the accused and they were not available. It will be useful to extract the relevant portion in his evidence, which is as under :

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“On 22.11.2010 C.I. of Police again visited Nellipudi Village along with the photographs of the deceased to elicit information regarding the movement in the village prior to his death. Then he secured the presence of witnesses P.W.4-M.Bullabbayi, and M.Abdulu-P.W.5, Kommu Appa Rao-P.W.6 and L.W.10-Dorayya and recorded their statements. Basing on the evidence he surprised the house of accused and they were not available.”

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From the evidence of P.W.11, which is referred to above, it appears that till 22.11.2010, even Police were not aware as to who the accused were and they came to know about the accused only after examining P.Ws.4, 5 and 6. But, as stated by us earlier, the evidence of P.W.3 itself show that he was taken to Gangavaram Police Station on 20.11.2010 itself, where he gave statement to the Police

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about the murder of the deceased. Further, he was confined in the Police Station during the night of 20.11.2010. That being so, the question of C.I. of Police not knowing who the culprits are and going around the village on 22.11.2010 to find out who the accused are and movements of the deceased appears to be quite strange. Therefore, a doubt arises as to whether really P.W.3 has witnessed the incident and whether he has disclosed about the incident to the Police. When P.W.1 was with the Police and gave a statement, there is no necessity for the C.I. of Police to enquire about culprits on 22.11.2010. Further, P.W.11 admitted in the cross-examination that he has not noticed and had no knowledge about the movement of the deceased in Nellipudi Village prior to the offence. The relevant admission is as under :

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“I have not noticed and knowledge that the deceased was moved in Nellipudi village prior to the offence.”

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Further, the evidence of P.W.11 would clearly show that P.W.3 did not state in his earlier statement recorded by the Police that, A1 beat the deceased with stick as stated in the evidence. He failed to mention before C.I. of Police that he saw the deceased at Nellipudi Centre when he went to his in-laws’ house. He did not mention about parking

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the vehicle at the residence of A2 and then going to his inlaws’ house. He also failed to mention in his earlier statement about the three houses intervening the house of A1 and the house of Babu Rao. Likewise, he did not state that, he went to the house of Jashuva, which is said to have been situated near to the house of A1. He also failed to mention about the Police calling him when he was in Nellipudi and taking him to Gangavaram Police Station and also about giving statement by 2.00 PM on 20.11.2010. In fact, in the earlier statement he failed to mention that he witnessed the first incident that took place in the house of A1 by peeping through the window of the house of Jashuva.

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In so far as the second incident is concerned, namely, about beating the deceased and drowning him in the canal water, P.W.3 in his cross-examination claims to have seen the incident from the house of Jashuva, which is at a distance of half a kilometre to the house of Jashuva. From the answers elicited in the evidence of Investigating Officer, it is very much clear that, P.W.3 did not mention crucial facts, namely, he seeing the deceased at Nellipudi centre, parking his vehicle at the house of A2, going to the house of Jashuva, which is said to be situated near the house of A1, witnessing the first incident in the house of A1 by peeping

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through the window and also about police recording his statement. Therefore, his version in Court that he saw the incident of A1 beating the deceased in his house in the presence of A2 to A4 and also A1 to A4 taking the deceased towards the canal appears to be doubtful. Even if it is believed, the question of he witnessing the incident from a distance appears to be suspicious, as his own evidence show that he has witnessed the incident from the house of Jashuva, which is at a distance of half a kilometre from the canal, which is practically impossible.

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Apart from that, the evidence of P.W.3 indicate that he never went to the house of Jashuva, nor did he proceeded towards the canal to witness the incident. The crossexamination, which we have extracted, would reveal that he reached Nellipudi at 12.00 noon on 19.11.2010, went to the house of Saraswathi and slept there till 8.00 PM and even after 8.00 PM, he slept along with A2 in the house of Saraswathi, got up on the next day morning at 8.00 AM and then left to Nellipudi Village. The evidence of P.W.7 does not anywhere indicate about the deceased leaving the house of Saraswathi; going to the house of Jashuva and returning late in the night. On the other hand, the admissions in the evidence of P.W.3, coupled with the

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evidence of P.W.7, show that both P.W.3 and A2 slept in the house of Saraswathi up to 8.00 PM and after dinner, P.W.3 and A2 again slept in the house of Saraswathi during night of 19.11.2010. Hence, there arises any amount of doubt as to when P.W.3 went out, saw the first incident from the house of Jashuva and then the incident near the canal, which was at a distance of half a kilometer from the house of Jashuva. As held by us earlier, if really P.W.3 has witnessed to the incident and when the statement is said to have been recorded by the Police on the evening of 20.11.2010, there was no necessity for the C.I. of Police to find out the identity of the accused on 22.11.2010 and he coming to know about the assailants after examining P.Ws.4 to 6, who did not support the prosecution case. Hence, we hold that P.W.3 cannot be treated as wholly reliable witness and that conviction of the accused cannot be based on the evidence of such witness, whose evidence is not only inconsistent with the evidence of other witnesses, but his own conduct throws suspicion as to he witnessing the incident, even believing that he was at Nellipudi Village on that night.

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For the aforesaid reasons, we are of the opinion that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt.

¶87

In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellants – accused, for the offences punishable under Sections 302, 149 and 201 of I.P.C. in Sessions Case No.567 of 2011 on the file of the Principal Sessions Judge, Rajahmundry, East Godavari District, by judgment dated 21.9.2012, are set aside. The appellants – accused are acquitted and they shall be set at liberty forthwith, if they are not required in any other case.

¶88

Consequently, miscellaneous petitions, if any, pending shall stand closed.

¶89

______________________________ JUSTICE C.PRAVEEN KUMAR

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______________________________ JUSTICE B.KRISHNA MOHAN

¶91

Date : 13.08.2020 skmr

D.Gattaiah at Satish, Kadapa Dt., v. the State of Telangana, Rep Pp.

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D.Gattaiah at Satish, Kadapa Dt., v. the State of Telangana, Rep Pp.

Case brief

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What the court decided

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