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2016 Supreme(AP) 169
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
C.V. Nagarjuna Reddy, M.S.K. Jaiswal, JJ.
Bheemgonda & Others - Appellants
Versus
State of Andhra Pradesh, represented by Public Prosecutor - Respondent
Criminal Appeal No. 787 of 2010
Decided On : 16-03-2016
For the Appellants : C. Vasundhara Reddy for Palle Sriharinath
For the Respondent: Public Prosecutor (AP)
Headnote:
Criminal Law – Criminal Trial – Indian penal Code, 1860 – Sections 302, 324 r/w 149 and 148 – Offence of Murder – Appeal against the conviction – Accused including appellants belonged to Congress Party deceased belonged to Telugu Desam Party and there were longstanding political factions between both these groups – All accused bore grudge against deceased as he gave evidence against appellant No.1/accused No.1 in a murder case of one Mangali Bheemaiah, who died more than a decade back and further suspected deceased of causing death of one Usha Prakash – Near Ambedkar statue of Chapta(K) Village, deceased, PWs.1, 4, 5, 6, 9 and 14 and others were chitchatting – At that time, all accused, after attending funeral function of one Prakash, while returning, on their way at Ambedkar statue, picked up quarrel with deceased and others, saying that they would file a case against deceased in connection with death of Usha Prakash and so saying, they have attacked said prosecution witnesses – Accused Nos.1, 2, 7, 17, 20, 22, 24, 29 and others beat P.W.1 by pelting stones and also with axe, as a result of which, latter received bleeding injuries over his head and back – Accused No.1 beat P.W.3 on her head – Accused Nos.10 and 22 beat P.W.4 with sticks, as a result of which, latter received fracture on his right leg below knee. Accused No.3 beat P.W.6 with stone on his forehead, due to which, latter received bleeding injury – Held, ordinarily, every omission in prosecution case is fatal – But, in a case of this nature, where Ex.P-1 - report was prepared, admittedly after confabulations, with a delay of more than three hours, these omissions assume significance and give rise to a serious suspicion whether the attack on the deceased has taken place, in the manner, in which it was projected by prosecution – Applying ratio of judgment of Supreme Court in Punati Ramulu (supra), it follows that Ex.P-1 cannot be treated as an F.I.R., that investigation made by Police based on such report becomes tainted, that accused cannot be convicted based on such tainted investigation, more so, when more than one witness had admitted that discussions and deliberations had taken place before Ex.P-1 was drafted and that whole prosecution theory is untrustworthy as is evident from fact that there are many material contradictions and omissions in case as projected by it – In these facts and circumstances of case, we are of opinion that due to failure of the investigation agency to conduct proper investigation, commencing from time of registration of F.I.R. and various omissions and contradictions in its case, it is not safe to convict accused – Aforementioned reasons, conviction and sentence recorded against all appellants/accused Nos.1, 2, 3, 10, 17, 20, 22, 24 and 29 in judgment, in S.C. No. 66 of 2006 on file of learned II Additional District and Sessions Judge, (Fast Track Court), Sangareddy, for respective offences punishable under Section 324 I.P.C. read with Section 149 I.P.C., Section 148 I.P.C. and Section 302 I.P.C. read with Section 149 I.P.C. are set aside – All appellants/accused Nos.1, 2, 3, 10, 17, 20, 22, 24 and 29 are set at liberty and they shall be released forthwith, if they are not yet released and unless they are required in connection with any other offence – Fine amount, if any, paid by appellants/accused Nos.1, 2, 3, 10, 17, 20, 22, 24 and 29 shall be returned to them forthwith – Appeal is allowed. (Paras 16, 17 and 18)
C.V. Nagarjuna Reddy, J.
1. Accused Nos.1, 2, 3, 10, 17, 20, 22, 24 and 29 in Sessions Case No.66 of 2006, on the file of learned II Additional District and Sessions Judge (Fast Tract Court), Sangareddy, filed this appeal against the judgment, dated 17.06.2010, whereby the learned Sessions Judge convicted appellant No.1/accused No.1 for the offences punishable under Section 302 I.P.C. read with Section 149 I.P.C. and Section 148 I.P.C. and sentencing him to suffer imprisonment for life and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default, to suffer simple imprisonment (S.I.) for six months and also convicted appellant Nos. 2 to 9/accused Nos.2, 3, 10, 17, 20, 22, 24 and 29 respectively for the offences punishable under Section 324 I.P.C. read with Section 149 I.P.C. and Section 148 I.P.C. and sentencing them to suffer rigorous imprisonment (R.I.) for two years each and also to pay a fine of Rs.500/- (Rupees five hundred only) each, in default, to suffer S.I. for three months each.
2. The case of the prosecution, in brief, is that all the accused including the appellants belonged to Congress Party and one Babu (hereinafter referred to as ‘the deceased’) belonged to Telugu Desam Party and there were longstanding political factions between both these groups. All the accused bore grudge against the deceased as he gave evidence against appellant No.1/accused No.1 in a murder case of one Mangali Bheemaiah, who died more than a decade back and further suspected the deceased of causing the death of one Usha Prakash.
On 23.05.2004, at around 6.00 p.m., near Ambedkar statue of Chapta(K) Village, the deceased, PWs.1, 4, 5, 6, 9 and 14 and others were chitchatting. At that time, all the accused, after attending the funeral function of one Prakash, while returning, on their way at Ambedkar statue, picked up quarrel with the deceased and others, saying that they would file a case against the deceased in connection with the death of Usha Prakash and so saying, they have attacked the said prosecution witnesses. Accused Nos.1, 2, 7, 17, 20, 22, 24, 29 and others beat P.W.1 by pelting stones and also with axe, as a result of which, the latter received bleeding injuries over his head and back. Accused No.1 beat P.W.3 on her head. Accused Nos.10 and 22 beat P.W.4 with sticks, as a result of which, the latter received fracture on his right leg below the knee. Accused No.3 beat P.W.6 with stone on his forehead, due to which, the latter received bleeding injury. Accused No.7 caught hold of the deceased and accused No.1 beat him with stone over his head, as a result of which, the deceased fell down with severe bleeding injuries. Immediately after the incident, P.W.10 informed the incident to Kangti Police, by making a phone call.
On receiving the information, P.W.20, the then Sub-Inspector of Police, Kangti Police Station, rushed to the scene and found the deceased and nine others with injuries. He immediately shifted the injured to Narayanakhed Government Hospital, wherein they were examined at around 9.15 p.m. by P.W.19, the then Civil Assistant Surgeon, who issued Exs.P-9 to P-15 - wound certificates of P.Ws.1, 3 to 7 and 9 respectively. On the same day of occurrence, at about 10.00 p.m., on receiving Ex.P-1 report at the Police Station from P.W.1, he (P.W.20) registered the same as crime No.27 of 2004 and issued Ex.P-19 – First Information Report (F.I.R.). On the next day of occurrence, at around 6.00 a.m., he visited the scene of offence, secured the presence of P.Ws. 2 and 3 and recorded their statements. That at about 7.30 a.m., he conducted the scene of offence panchanama in the presence of P.W.16 and seized M.Os.1 to 5, i.e., stone and sticks under the cover of Ex.P-6 - panchanama. He prepared Ex.P-7 - rough sketch of the scene, and thereafter, he proceeded to the Government Hospital, Narayanakhed and recorded the statements of P.Ws.4 to 10. At about 10.00 a.m., he held inquest over the dead body of the deceased in th
