Allowed

Jagarapu CHINNODU(A-1), Visakapatnam and 9 Otrs., v. the State of Ap., Rep Pp.

Andhra Pradesh HC4 Jan 2023CRLA/99/2016

Case brief

AI extract

What is this about?

In an appeal against conviction for murder and other offences, the High Court held that the case rested solely on the testimony of the deceased's wife. Finding her conduct suspicious and noting discrepancies with medical evidence, the Court concluded she was not a reliable witness. Consequently, the conviction was unsustainable, and the criminal appeal was allowed, setting aside the trial court ju

What did the court decide?

The judgment dated 13.01.2016 convicting A-1 to A-10 is set aside. Appellants to be released forthwith if not detained in other crimes.

Jagarapu CHINNODU(A-1), Visakapatnam and 9 Otrs., Vs… — Cheque Dishonour | Andhra Pradesh HC (2023)

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THE HONOURABLE SRI JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

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CRIMINAL APPEAL No.99 of 2016

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

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Accused No.1 to 10 in Sessions Case No.135 of 2008 (wrongly mentioned as Sessions Case No.138 of 2008) on the file of the learned VII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam are the appellants herein. They were tried for the offences punishable under Sections 302, 452 and 324 read with 34 I.P.C.

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Vide judgment, dated 13.01.2016, A-1 and A-2 were sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for three months each for the offence punishable under Section 449 I.P.C.; A-1 to A-10 were sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for three months each for the offence punishable under Section 302 I.P.C. read with 34 I.P.C.; and A-7 and A-8 were sentenced to undergo rigorous imprisonment for six months each for the offence punishable under Section 324 I.P.C. The substantive

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sentences imposed on A-1, A-2, A-7 and A-8 were directed to run concurrently.

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The substance of the charge levelled against the accused is that on 07.11.2007, at about 22.00 hours, at Nainammapalem Village, A-1 and A-2 committed trespass into the house of one Karu Sreeramulu (hereinafter, referred to as “the deceased”) to commit murder; that all the accused, with a common intention to commit the murder of the deceased, beat the deceased with sticks and stones indiscriminately resulting in his death on the spot and that A-7 and A-8 beat Karu Satyavathi, who is the wife of the deceased, with sticks, as she obstructed the accused from killing her husband.

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The case of the prosecution, in brief, is as under:

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P.W.1 is the wife of the deceased while P.W.2 is the sister-in-law of P.W.1 and P.W.3 is the son of P.W.1 and the deceased. P.W.4 is the Village Thalayari. Few days prior to the incident, the son of A-1 fell sick. The accused suspected that the deceased might have done witchcraft. Hence, about 15 days prior to the incident, all the accused i.e., A-1 to A-10 came to the house of P.W.1 and the deceased and threatened the deceased stating that they would remove his teeth and kill him

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suspecting that he is doing witchcraft on the son of A-1. They also pelted lemons on their house. A week thereafter, the accused again came to the house of the deceased and P.W.1 and threatened the deceased in the same manner. It is said that on the fateful day i.e., on 07.11.2007, at about 10.00 p.m., while P.W.1 and her daughter slept on one cot, the deceased and his son slept on another cot on the verandah. At that time, the lights in their house were on and even there was lighting from outside the house. P.W.1 claims to have noticed A-1 and A-2 dragging the deceased from the verandah forcibly and A-3 sprinkling chilly powder on the face including eyes. At that point of time, A-9 beat the deceased on his head with a stone while A-10 beat the deceased on his nose with ‘Dadikarra’, which is a stick used for fencing. It is also said that A-1 beat the deceased on his hands and stomach with stick. A-3 to A-5 beat the deceased with stones. On seeing the same, P.W.1 and her children intervened to save the deceased from the hands of the accused. Then, A-7 and A-8 pulled them and beat P.W.1 with sticks. After killing the deceased, all the accused ran away. It is said that after the incident, P.W.1 fell unconscious and gained consciousness on the next day morning and informed about the incident to their Village Thalayari, who was

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examined as P.W.4. The Village Thalayari approached the Village Revenue Officer and narrated the incident. On 08.11.2007, at about 3.30 p.m., P.W.8 – Sub-Inspector of Police, Yelamanchili Rural Police Station, who is In charge of Atchutapuram Police Station, received information from P.W.4 about the incident. He informed the Inspector of Police, Narsipatnam Circle and left the police station. At the scene of offence, he noticed the dead body of the deceased. He asked P.W.1 as to whether she can give a report. She informed that she cannot give any report but she will give an oral statement. P.W.8 claims to have recorded the statement, which was reduced into writing. Ex.P-1 is the report given by P.W.1 and Ex.P-2 is the 161 Cr.P.C. statement of P.W.4. He posted a Constable to guard the dead body and left the scene of offence. Basing on Ex.P-1, he registered a case in Crime No.120 of 2007 for the offences punishable under Sections 302, 452 and 324 read with 34 I.P.C. Ex.P-11 is the F.I.R. Thereafter, he dispatched Exs.P-1 and P-11 to the learned Magistrate Court through a Constable. Further investigation in this case was taken up by P.W.9.

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On receiving a copy of the F.I.R., P.W.9 proceeded to the scene of offence located at Nainammapalem Village and found

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the dead body lying near a coconut tree, at a distance of 10 feet from the house of the deceased. In the presence of P.W.6 and one K. Satyanarayana, he prepared an observation report of the scene, which is placed on record as Ex.P-4. He then drew a rough sketch at the scene, which is marked as Ex.P-12. During the scene observation, he seized M.O.1 – three sticks, M.Os.2 and 3 – two stones and also blood stained earth and controlled earth under M.Os.6 and 7. None of the witnesses were available to be examined. Hence, he got the body shifted to Yelamanchili Government Hospital. On the way, he secured the presence of P.Ws.1 and 2 and others, examined them and recorded their statements in the hospital. He also conducted inquest over the dead body of the deceased in the presence of P.W.6 and others. Ex.P-5 is the Inquest Report. Thereafter, he sent the body for post mortem examination.

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P.W.5, who was working as Civil Assistant Surgeon, Yelamanchili, conducted autopsy over the dead body of the deceased on 09.11.2007 and issued Ex.P-3 – Post Mortem Certificate. The Doctor noticed about 11 external injuries on the body of the deceased and also observed injury No.12 i.e., Grade 3 of upper and lower incisors and lower canines with laceration of gums. Blood clots present on both sides. He then

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handed over the investigation to P.W.10 – Circle Inspector of Police, Yelamanchili Circle.

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On 17.11.2007, P.W.10 took up investigation, visited the scene of offence, secured the presence of P.Ws.3 and 4 and others and recorded their statements. On 19.11.2007, he proceeded to R.T.C. Complex, Yelamanchili at 12.00 noon and arrested A-1 to A-10 in the presence of P.W.8. His evidence shows that pursuant to a request made, on 25.11.2007, he visited Visakha Educational Defence Academy situated at NAD Junction, Visakhapatnam and examined one Logisa Shankar and recorded his statement. This part of investigation was done to examine the plea of alibi taken by A-9 and A-10. After collecting the necessary material from NAD, he submitted the entire case to the Superintendent of Police, Visakhapatnam and also addressed a letter requesting him to accord permission to delete the names of A-9 and A-10 from the charge sheet and accordingly, the Superintendent of Police gave permission on 12.03.2008 for deleting the names of A-9 and A-10 from the array of accused. After completing the entire investigation, a charge sheet came to filed (deleting A-9 and A-10), which was taken on file as P.R.C.No.17 of 2008 on the file of the learned Additional Judicial First Class Magistrate, Yelamanchili.

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On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the offences are triable by a Court of Sessions, the case was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned VII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam for trial and disposal in accordance with law.

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Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried.

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To substantiate its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-15 and M.Os.1 to 7. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. D.W.1 was examined on behalf of the accused and Exs.D-1 to D-9 were got marked on their behalf.

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Believing the evidence of P.Ws.1 and 3, which according to the learned Sessions Judge, gets corroboration from the

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medical evidence, convicted all the ten accused for the offences referred to earlier. Challenging the same, the present appeal came to be filed by the accused.

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Before proceeding further, it is to be noted here that the police, after investigation, filed charge sheet only against A-1 to A-8 but during the course of trial, after examination of P.W.1, an application under Section 319(1) Cr.P.C. came to be filed to include A-9 and A-10, and the same was allowed. Challenging the same, a revision was filed before this Court questioning the order passed but the same was rejected. As such, charges were again framed against the ten accused.

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Sri T. Nagarjuna Reddy, learned counsel for the appellants/A-1 to A-10, mainly submits that there is absolutely no legal evidence available on record to convict the accused. According to him, if really P.W.1 was present in the house and had witnessed the incident, as claimed by her, her conduct would have been different. He submits that in the said village, number of relatives of P.W.1, who are present, in fact came to her house on the next day morning, but she never disclosed about the incident to anyone of them and only on the next day evening i.e., on 08.11.2007, when the police came, she gave an

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oral report, which was reduced into writing, and thereafter, the F.I.R. came to be registered at 05.00 p.m. and the said F.I.R. was received by the Court at 11:50 p.m. In view of the above, learned counsel would contend that if really P.W.1 was present in the house and had witnessed the incident, there would not have been so much delay in lodging the report, more so, her conduct would have been different. Learned counsel further submits that even in the belated report, there is no reference to the presence of P.W.3, who is now projected as an eye witness to the incident. According to him, the name of P.W.3 also does not figure in the Inquest Report and he was examined for the first time on 17.11.2007 i.e., nearly after ten days after the incident. Hence, he would submit that P.W.3 has been set up by the prosecution to fortify their case.

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Coming to the medical evidence, learned counsel would contend that the medical evidence does not corroborate the evidence of eye witnesses in material aspects. According to him, A-9 and A-10 were attributed with specific overt acts of causing injuries on the head, which was said to be the cause of death of the deceased, but strangely, there are no injuries on the head of the deceased, which could have been caused by stone. On the other hand, the Doctor, in his evidence in chief, states that

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injuries were caused with a weapon like M.O.1 – sticks. Having regard to the above, learned counsel would contend that in a case of this nature, which rests on the solitary testimony of P.W.1, corroboration in some form should be there to support the evidence of P.W.1, which is lacking.

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Apart from that, learned counsel took us through the evidence of Investigating Officers to show as to how the prosecution witnesses have improved their case from stage to stage and failed to mention certain crucial facts in their earlier statements. In view of all the above circumstances, learned counsel would submit that it is a fit case where benefit of doubt has to be extended to the accused.

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On the other hand, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, opposed the same contending that P.W.1 is an injured eye witness and her presence at the scene cannot be doubted. He further submits that injury found on the body of P.W.1 cannot be said to be self inflicted injury and it is nobody’s case that the injury found on P.W.1 is a self inflicted injury. That being so, the argument of

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the learned counsel for the accused that the presence of P.W.1 is doubtful cannot be accepted. In support of his plea, he relied

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upon a judgment of the Hon’ble Supreme Court in Kuriya and

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another vs. State of Rajasthan¹ in support of his plea.

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Learned Special Assistant Public Prosecutor further submits that the discrepancy which has been pointed out between the ocular evidence ad the medical evidence does not go to the root of the matter and the discrepancies, if any, in the medical evidence cannot be looked into since it is only an opinion evidence.

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Insofar as the evidence of P.W.3 is concerned, learned counsel would contend that merely because the name of P.W.3 was not mentioned in the F.I.R. or the Inquest Report, the same cannot be excluded from consideration if the said evidence inspires confidence in the Court. Learned counsel further submits that nothing is suggested to P.Ws.1 and 3 to show as to whether they are speaking falsehood. In fact, according to him, there is no enmity between the family of P.W.1 and the accused to speak falsehood. In view of the above, learned Special Assistant Public Prosecutor would contend that the conviction and sentence imposed by the trial Court requires no interference.

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1 (2012) 10 Supreme Court Cases 433

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16. The point that arises for consideration is:-

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“Whether the prosecution has proved the guilt of the accused for the offences alleged against them beyond all reasonable doubt?”

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17. POINT :-

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It is also to be noted here that out of ten accused, A-3, A-4, A-6, A-7 and A-8 were released by the Government in terms of G.O.Ms.No.131 Home (parole – HRC) Department, dated 05.11.2020 by granting special remission to female prisoners. Be that as it may be, learned counsel would contend that though they were released on bail, but the case on hand has to be adjudicated basing on the evidence available on record.

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It is not in dispute that the entire case rests on the solitary testimony of P.W.1. It is now to be seen as to whether P.W.1 can be called as a sterling witness. In the case of Kuriya

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and another vs. State of Rajasthan² , the Hon’ble Apex Court

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held at para No.24 as under:-

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“……. “Sterling worth” is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanour of the witnesses, if any, noticed by the Court. Linguistically, “Sterling worth” means “thoroughly excellent” or “of great value”. This term, in the context of

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2 (2012) 10 Supreme Court Cases 433

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criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood…”

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It is well established principle of law that the evidence of a solitary witness can also be relied upon if it is wholly reliable. In Kunju @ Balachandran vs State Of Tamil Nadu³ , the Apex Court, at para No.9, held as under:-

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“9. Vadivelu Thevar case (AIR 1957 SC 614) supra was referred to with approval in the case of Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). This Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short “the Evidence Act”). But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.”

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3 (2003) 11 SCC 367

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From the judgments referred to above, it is clear that when the case rests on a solitary testimony of a witness, it has to be seen whether the said witness is a truthful witness or a wholly reliable witness.

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As stated earlier, in the instant case, the prosecution has mainly relied upon the evidence of P.W.1, who, according to the prosecution, was an injured witness. Normally, when the case rests on the testimony of an injured eye witness, it is presumed that the presence of the witness at the scene is fixed and to disbelieve such witness, the onus is on the accused to prove that the injuries sustained by the witness are either self inflicted or sustained in some other incident or long before the incident in question. Keeping these circumstances in the background, we will now proceed to deal with the case on hand.

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P.W.1, in her evidence, deposed that about a few days prior to the death of the deceased, the son of A-1 fell sick and the accused suspected the deceased responsible for the same as he might have done witchcraft. About 15 days prior to the date of incident, all the ten accused came to her house and threatened the deceased stating that they will remove his teeth and kill him. A week prior to the incident also, all the ten

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accused again came and threatened the deceased in the same manner and pelted lemons on the roof of their house. On the fateful day, at about 10.00 p.m., while P.W.1 and her daughter slept on one cot and the deceased and his son on another cot in the verandah of their house, P.W.1 woke up on hearing some noise and she noticed A-1 and A-2 dragging the deceased from the verandah forcibly. A-3 sprinkled chilly powder on the face of the deceased including on the eyes while A-9 beat the deceased on his head with a stone and A-10 beat the deceased on his nose with ‘Dadikarra’, which is a stick used for fencing. Her evidence also shows that A-1 beat the deceased on his hands and stomach with a stick while A-3 to A-5 beat the deceased with stones. When P.W.1 and her children intervened, A-7 and A-8 pulled them and beat P.W.1 with sticks. This, in substance, is the incident which took place on the night of 07.11.2007.

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23. The question is:-

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“Whether P.W.1 is a truthful witness or whether her evidence can be believed to convict the ten accused?”

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P.W.1 was subjected to lengthy cross examination to show

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that she is not speaking the truth. In the cross examination, it was elicited that the sister and brother of P.W.1 were residing in

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their village and apart from that, number of people known to her were living in the village. It was further elicited in the cross examination of P.W.1 that number of villagers came to the scene of offence and witnessed the incident. It would be appropriate to extract the same, which is as under:-

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“I know our village Sarpanch Kondrapu Satyanarayana by then. On the same night I know that the deceased died as he was beaten to death. On the next day of the incident all our neighbours came to know that the deceased died. My sister and brother who are residing in our village came to our house on the next day morning and enquired me as to how the deceased died. While the attack was going on the neighbours came near to the scene of offence but I cannot say their names. Karu Ramunaidu, Karu Demudu, Jagarapu Ramunaidu and Lekkala Kothaih did not come to the scene of offence at that time. It is true I have stated earlier in my chief examination conducted on 29-12-2008 that the above named persons and others witnessed the incident. Witnessing the incident by the above named persons is true and correct.”

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The above admission is relevant to show the conduct of P.W.1. If really P.W.1 was there in the house at that time and if really she had seen her husband being beaten to death in the manner narrated above, what would be the normal conduct of P.W.1? The normal human conduct would be to inform the close family members in one form or the other about the incident in question and then, take their help at the earliest point of time in setting

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the law into motion. The incident took place at about 10.00 p.m. in the night and the F.I.R. was lodged by P.W.1 on the next day evening at 4.30 p.m., which lead to issuing a F.I.R. at 5.00 p.m. on 08.11.2007. In other words, the incident was at 10.00 p.m. on 07.11.2007 and a report was given when the police visited the scene at 4.30 p.m. and then, F.I.R. came to be registered at 5.00 p.m. which reached the Court around mid night. Though the endorsement made by the learned Magistrate on the F.I.R. show that it was received at 11.55 p.m. on 08.11.2007, it appears to be incorrect as no F.I.R. was registered by then.

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In the cross examination, P.W.1 further admits that on the next day, she made a phone call to her sister-in-law and informed about the death of the deceased which means that facility to call others on phone was available with P.W.1. If that was so, there is no justification for her to keep quiet till next day evening without informing anybody and give a statement only after the arrival of the police to the scene, which conduct, in our view, appears to be quite unnatural.

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At this stage, Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, would contend that having regard

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to the manner in which the incident took place, one cannot expect a lady to go to the police station in the middle of the night and lodge a report.

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We agree with the view expressed by the learned Special Assistant Public Prosecutor but here is a case where the incident happened at 10.00 p.m. on 07.11.2007 and for the entire day on 08.11.2007, no steps were taken to set the law into motion, more so, when her sister and brother live in the very same village and who came to her house on the next day morning and enquired as to how the deceased died.

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Apart from that, the admissions in the evidence of P.W.1 show that on the next day morning, she sent her son to the Sarpanch of the village, who then reached the scene of offence. Her evidence also indicate that the house of Village Thalayari namely Sanyasi Rao is situated at a distance of two miles from their house. For reasons best known, the prosecution did not examine the Sarpanch to whom the message was sent, and the Village Thalayari, who was examined as P.W.4 did not support the prosecution case and he was declared hostile.

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However, the defence examined the said Sarpanch as D.W.1. He, in his evidence, deposed that P.W.1 is the third wife

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of the deceased and since a year prior to the incident, the relationship between the deceased and P.W.1 was not cordial as she complained to him twice about being beaten by the deceased. He also speaks about a panchayat being held wherein he advised the deceased to look after P.W.1 well. Thereafter, she made a complaint against the deceased in Atchutapuram Police Station. According to him, since a year prior to the incident, P.W.1 was living along with her children separately in her parents’ house. He further states that he came to know about the incident on the next day at 12.00 noon and on the said day evening, he visited the scene of offence and thereafter, he was present when inquest was conducted. He further states that by the date of incident, A-9 and A-10 were studying and residing in a hostel at Visakhapatnam.

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D.W.1 was cross examined by the learned Public Prosecutor. The cross examination done was with regard to the manner in which he was elected as Sarpanch from Nainammapalem Village besides other village elders from other villages. In fact, it was elicited that on two occasions, P.W.1 complained to him about the incident but however, states that he cannot exactly give the dates when she gave oral complaints. On the other hand, he is said to have advised P.W.1 to approach

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the police. It was further elicited that he had no personal knowledge that P.W.1 was not residing in the village since a year prior to the death of the deceased. To a suggestion that he is deposing falsely only to help the accused at the instance of village elders, who nominated him as a Sarpanch, was denied by him. From the evidence of this witness, it is clear that all was not well between P.W.1 and the deceased and on couple of occasions, she gave a complaint against the deceased to D.W.1. but the issue is whether she was living along with the deceased on the date of incident.

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Few other circumstances which are required to be noted to test the veracity of P.W.1 are firstly, injuries on P.W.1 and secondly, her version with regard to overt acts attributed to the accused.

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Insofar as injuries on P.W.1 are concerned, P.W.5 is the Doctor, who examined P.W.1 and issued Wound Certificate – Ex.P-13 dated 28.01.2008. He noticed three external injuries on the body of P.W.1 which were simple in nature. They are as under:-

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“1) A contusion 8 cm x 4 cm present on right forearm, swelling present; 2) complaining of pain over right leg at its

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middle; 3) complaining of pain over back of the chest. I am of the opinion that above injuries are simple in nature. Injury no.1 can be caused by blunt object like sticks under MO1 shown to me. Injury nos.2 and 3 referred to above are possible if any force is used or with blunt object but not sticks. Injury no.2 is not possible to be caused with MO1 sticks shown to me.”

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The Doctor opined that injury No.1 can be caused by blunt object like sticks (M.O.1) and injury Nos.2 and 3 are possible if any force is used or a blunt object but not with sticks. According to him, injury No.2 is not possible with M.O.1 sticks. This piece of evidence, if tested with the version of P.W.1, creates some doubt. P.W.1, in her evidence in chief, speaks about A-7 and A-8 beating her with sticks but the Doctor in categorical term state that injury No.2 is not possible with a stick. In the cross examination, P.W.1 gives a go-bye to what she has stated in the chief and admits that A-7 and A-8 beat her with hands and fisted her on the chest. Probably, taking into consideration the report of the Doctor, the version appears to have been changed. Further, the Doctor (P.W.5), in his cross examination, categorically states that he did not mention the age of the injuries in Ex.P-13 Wound Certificate. That being so and having regard to the facts stated earlier, a doubt arises as to whether she was present at the time of incident.

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One another circumstance which also requires to be discussed is the overt acts attributed by P.W.1 to the accused. The version of P.W.1 shows that A-1 and A-2 dragged the deceased from the verandah while A-3 sprinkled chilly powder on the face including eyes, A-9 beat the deceased on his head with a stone and A-10 on the nose with a stick. Strangely, these injuries do not get corroboration from the medical evidence. The Doctor nowhere speaks about the existence of any chilly powder in the eyes of the deceased. Even assuming that the chilly powder might have got dried or being cleaned before post mortem, there is no injury on the nose of the deceased, which was attributed to A-10. Further, as per the medical evidence, the injury on head was said to have been caused by A-9 with a stone but the Doctor categorically states that the injury which was on the head is possible only with a stick.

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One another circumstance to doubt the veracity of P.W.1 is with regard to involvement of A-9 and A-10 in the commission of the offence. P.W.10 – Investigating Officer, in his cross examination, states that he verified the Attendance Register of Visakhapatnam Defence Academy which shows that A-9 and

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A-10 were present at the Academy in Visakhapatnam on the date of offence and taking coaching. He is said to have seized the record. His investigation with regard to absence of A-9 and A-10 was verified by the Additional Superintendent of Police, Visakhapatnam at the instance of Superintendent of Police, Visakhapatnam. Only after obtaining the permission of Superintendent of Police, he is said to have deleted them from the charge sheet. But in view of the evidence of P.W.1 that A-9 and A-10 participated in the attack, they were subsequently, added as accused under Section 319 Cr.P.C. but the Investigating Officer is very categorical in his evidence that these two accused were never present in their village on the date of incident and on the other hand, they were in the Defence Academy undergoing training. The said circumstance also, in our view, throws doubt as to whether P.W.1 is really speaking the truth.

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Though the learned Special Assistant Public Prosecutor tried to contend that these are all minor contradictions which do not go to the root of the matter but when the entire case rests on the solitary witness of P.W.1, we feel that to test the veracity of a witness, corroboration from medical evidence is required to be taken and when tested with that evidence, we

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noticed the above infirmities, which doubt the presence of P.W.1 at the scene.

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Having regard to the above, in the facts and circumstances of the case, we feel that it may not be safe to base a conviction relying on the evidence of P.W.1 alone. Hence, we hold that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt for the offences punishable under Sections 449, 302 and 324 read with 34 I.P.C., and as such, the judgment of the trial Court impugned herein is liable to be set aside.

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In the result, the conviction and sentence recorded by the learned VII Additional District and Sessions Judge (Fast Track Court), Visakhapatnam vide judgment, dated 13.01.2016, in Sessions Case No.135 of 2008 (wrongly mentioned as Sessions Case No.138 of 2008) against the appellants/A-1 to A-10 for the offences punishable under Sections 449, 302 and 324 read with 34 I.P.C. are set aside. The appellants/A-1 to A-10 shall be released forthwith if they are not required to be detained in any other crime. Fine amount, if any, paid by the appellants/A-1 to A-10 shall be refunded to them.

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