Dr. Arijit Pasayat, J.— The challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court partly allowing the appeal filed by the State and setting aside the acquittal so far as the present appellant is concerned while upholding the acquittal in respect of rest of the accused persons. A-1 to A-9 were tried for the offences under Sections 120-B, 148, 149, 324, 307 and 302 of the Penal Code, 1860 (in short “IPC”) for having caused the death of one Abbai Reddy and injuries to Yedukondalu (PW 1) and Mohammed Basha (PW 2).
2. The trial court acquitted all the accused on 12-7-1999. The State preferred appeal before the High Court. The appeal was allowed in respect of A-1 alone and he was convicted for the offence under Section 302 IPC and sentenced to suffer imprisonment for life. The appeal in respect of A-2 to A-9 was dismissed. Challenging the same, criminal appeal has been preferred by A-1.
3. The prosecution version in a nutshell is as follows:
On 4-11-1993 at about 7.00 p.m Abbai Reddy (hereinafter referred to as “the deceased”) and Yedukondalu (PW 1) came in the car driven by PW 2 Basha. While coming to the turning near to the house of the deceased, the accused persons A-1 to A-8 stopped the car and broke the front glass of the car. Then they broke open the doors of the car. All the accused persons attacked the deceased Abbai Reddy with knives. Some accused attacked PW 1 also. PW 1 and PW 2 managed to escape after receiving injuries. PWs 3 to 6 are the close relatives of the deceased Abbai Reddy and on hearing the cries came out of the house and saw these accused running away from the scene after attacking the deceased.
4. PW 1 made a telephonic call to PW 22, SI of Police and informed about the incident. PW 22 after giving information to higher official came to the scene of the offence along with PW 15, the professional photographer. He took photographs of the victim deceased, car and the scene of the offence. Then the deceased and PW 1 were taken to the hospital. There the doctor (not examined) declared Abbai Reddy dead. PW 1 was examined by PW 16, doctor on 4-11-1993 at 9.00 p.m PW 16 doctor issued Ext. P-53, wound certificate. Thereafter, PW 22 SI of Police obtained the statement, Ext. P-1 from PW 1 at 9.30 p.m and registered the case at about 10.00 p.m under Section 302 IPC and other offences.
5. PW 23, the Inspector of Police took up the investigation and conducted the inquest on 5-11-1993. PW 17 conducted autopsy and issued post-mortem certificate, Ext. P-54. PW 23 Inspector of Police continued the investigation and arrested the accused. During the course of investigation identification parade was conducted by PW 19, Magistrate; PW 1 identified A-1, A-2 and A-4. PW 2 identified A-4 alone. After completing the investigation, PW 23 filed the charge-sheet.
6. PWs 1 to 23 were examined on behalf of the prosecution, Exts. P-1 to P-94 marked. DW 1 was examined on behalf of the accused. Exts. D-1 to D-4 were marked. A-1 is the son of A-9, A-2 is the clerk under A-9, A-3 to A-5 are close friends of A-1, A-6 to A-8 are friends of A-2, A-9 is A-1's father.
7. There was a quarry business rivalry between A-9 on the one hand and deceased Abbai Reddy on the other hand. The land belonging to one Haribabu was put to sale. Both A-9 as well as the deceased were trying to purchase the same, and ultimately deceased Abbai Reddy purchased the land at higher price. Due to this there used to be frequent quarrels between A-9 and the deceased.
8. PW 1 Yedukondalu is the business partner of the deceased. PW 2 Basha is the driver. PW 3 is the elder brother, PW 4 is the friend, PW 5 is the brother-in-law and PW 6 is the wife of the deceased Abbai Reddy.
9. The trial court disbelieved the case of the prosecution and acquitted all the accused. However, the High Court in the appeal filed by the State set aside the order of acquittal in respect of A-1 and convicted him for the offence under Section 302 IPC and confirmed the acquittal in respect of the other accused.
10. It is relevant to take note of the grounds on which the High Court sustained acquittal of A-2 to A-9. According to the prosecution the occurrence had taken place near to the house of the deceased from where PWs 3 to 6 had witnessed the occurrence. The evidence of PWs 3 to 6 is not reliable because PWs 3 to 6 could not have seen the occurrence from the deceased's house as the scene of offence has been purposely shifted from the actual scene of offence to a place near to the market yard, from the place near to the house of the deceased in order to plant PWs 3 to 6 as eyewitnesses. The evidence of PW 15 photographer who had photographed the actual scene of the offence would show that the scene of the offence is a place opposite to the market yard which is far away from the house of the deceased.
11. Now the reasons which weighted with the High Court to set aside acquittal of A-1 need to be noted. Since PW 1 has given the name of A-1 in Ext. P-1 FIR and he is an injured witness, his evidence alone is believed to convict A-1 for Section 302 IPC.
12. Learned counsel for the appellant submitted that the High Court disbelieved the evidence of PWs 3 to 6 mainly on the basis of the evidence of PW 15. If the finding given by the High Court in the light of the evidence of PW 15 photographer that PWs 3 to 6 is unreliable, would falsify the entire prosecution case. As such PW 1 also cannot be believed.
13. The specific findings of the High Court are as follows:
(1) The exact scene of offence is in front of the market yard which is far away from the house of the deceased and not the place near to the house of the deceased.
(2) PW 15 has taken the photograph of the dead body inside the car. So the deceased must have been attacked and murdered inside the car itself.
(3) Scene of the offence is purposely shifted from the market yard to a place near to the house of the deceased in order to plant PWs 3 to 6, relatives of the deceased as eyewitnesses. Since the scene of the offence is a different place, PW 3 to PW 6 could not have seen the occurrence. So they are unreliable.
14. The special leave petition filed against the acquittal of A-2 to A-9 by the State has been dismissed on 16-9-2002. So this finding has become final. As such the finding of the High Court as well as evidence of PW 15 photographer on the basis of which the said finding was given would completely falsify the case of the prosecution. So PW 1 also cannot be believed. To this effect, the following finding has been given by the trial court:
“PW 15, Gathula Syamalarao, photographer and his evidence shows that on 4-11-1993 he took photos in connection with the death of deceased Abbai Reddy at Korukonda Road. In his chief-examination he stated the exact place is opposite to market yard and it was done in the evening time. He took Exts. P-17 to 34 photos and Exts. P-35 to 52 are its negatives. He further says that he took the photos of the dead body of the deceased and the car. In the cross-examination he says that he took more than 20 photos of the crime and also stated the police have shifted the position of the dead body of the deceased so as to suit better appreciation. But the photograph was taken while the dead body was inside the car.”
15. Learned counsel for the respondent supported the judgment of the High Court.
16. Analysis of the evidence in the background of the conclusions of the High Court would reveal the following aspects. According to PW 1 both in the FIR and evidence, the car was stopped near to the house of the deceased and then car glasses were broken and both the deceased and PW 1 were attacked inside the car and thereafter the deceased was dragged out of the car, again attacked and pushed on the ground. If PW 15's evidence to the effect that scene of the offence is different and dead body was found inside the car is accepted, the evidence of PW 1 to the effect that the occurrence took place near to the deceased's house and the deceased was dragged out of the car and again attacked and he fell down on the ground and thereafter the deceased was taken to hospital is false. As a matter of fact PW 5 and PW 6 who are eyewitness to the occurrence had stated that Abbai Reddy died on the spot. Similarly PW 15 would state he had taken photographs of the dead body.
17. Coming to the evidence of PW 1 in Ext. P-1, he had stated that when the car was reaching the house of the deceased, A-1 was following the car in the scooter, but in evidence he had stated that A-1 was standing there at Ramakrishna Mission and A-1 and others stopped the car. Though in Ext. P-1, PW 1 stated that all the eight accused attacked the deceased, in evidence PW 1 had given special role to A-1 stating that A-1 first attacked the deceased and 5 other accused thereafter attacked the deceased. According to PW 15, PW 5 and PW 6, Abbai Reddy died on the spot. In Ext. P-1 there is no reference about the death of the deceased.
18. In evidence PW 1 and PW 22 would state that the deceased was taken to the hospital for treatment. This is false especially as PW 1 gave telephonic information about the murder of Abbai Reddy. PW 1 in his evidence stated that he had given all the names of the accused in Ext. P-1, complaint. This is not correct because he had mentioned only A-1 and 8 others. PW 22 also stated that PW 1 did not give all the names.
19. PW 1 did not choose to give the statement immediately when PW 22 reached the scene. PW 22 also did not care to take the statement from PW 1. Even though PW 22 came to the scene at 8.00 p.m along with the photographer, the complaint was registered at only 10.00 p.m after shifting the deceased from the scene of the offence. The reason appears to be that at that time the police was not able to fix the identity of the person who had attacked. That is the reason why no names have been given in Ext. P-1 except A-1. PW 1 gave telephonic information stating that the deceased was murdered. PW 22 confirms the information. But PW 1 says he has not given any such information.
20. There are various other infirmities. There is no reason as to why the damaged car was not seized. PW 23 admits that in spite of instruction to SI of Police the same was not seized. PW 23 Inspector of Police admits that bloodstain found in the car was not scrapped and sent to the chemical experts. No reason is given for the same. Though it is claimed that the bloodstained earth and sample has been taken from the new scene of offence, Ext. P-94 shows it did not contain blood, it was soil and ash.
21. If the deceased was lying unconsciously, there is no reason as to why the photographer was asked to take photographs. There is no reason as to why PW 22 did not get the complaint from PW 1 before taking the deceased to the hospital. PW 1 identified A-1, A-2 and A-4 in the identification parade before PW 19 Magistrate, but PW 2 identified only A-4.
22. The inevitable conclusion is that the appeal deserves to be allowed which we direct. The bail bonds executed to give effect to the order of bail passed by this Court on 29-11-2001 shall stand discharged.