THE HONOURABLE SRI JUSTICE K.SURENDER

AND

THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

CRIMINAL APPEAL No.1641 of 2018

JUDGMENT: (Per Hon’ble Sri Justice K.Surender)

This Criminal Appeal is filed by the appellant/accused,

aggrieved by the judgment dated 07.03.2018, in S.C.No.199 of 2015, on the file of the Principal Sessions Judge, Adilabad, whereby the appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code,

1860 (for short ‘IPC’).

2. Heard Mr.Nazeer Khan, learned counsel for the appellant, Sri Arun Kumar Dodla, learned Additional Public Prosecutor and Sri M.Vivekananda Reddy, learned Assistant

Public Prosecutor for respondent-State.

3. The case of the prosecution is that on 17.01.2015, in the early morning between 06.30 A.M. to 07.00 A.M., the appellant allegedly attacked Sri Muchineni Chinnulu (hereinafter referred to as ‘the deceased’), with an axe. According to the eye-witness, the appellant attacked the deceased with an axe, severing the head from the body. A

written complaint was filed by PW.1 with the police at 08.00 A.M. on 17.01.2025. In the said complaint, it is narrated that his brother/PW.3 and other villagers informed that the appellant attacked his father with an axe on the suspicion that the deceased was practicing sorcery and that the father of the appellant, namely Bheemaiah, died on account of the deceased practicing sorcery.

4. PW.12, who was working as Sub-Inspector of Police, received a complaint on 17.01.2015 at 08.00 A.M. He registered the FIR and sent the copies of the same to the concerned Magistrate.

5. PW.13 took up the investigation from PW.12, and he took PW.7/photographer along with him to the scene of offence, where he found the dead body of the deceased in a pool of blood. The scene of offence was situated on the road which connects Kattakindigudem and Gandigopalpur Village, where PW.13 conducted the scene of offence panchanama and one bamboo stick, a white towel with blood stains, and control earth were seized. With the help of PW.7, Exs.P.2 to P.9 photographs were taken and Ex.P.10 is the CD on which photographs were copied.

6. The Investigating Officer filed a charge sheet on the basis of the evidence collected during investigation. Having framed the charge under Section 302 of IPC, the learned Sessions Judge examined the witnesses produced by the prosecution. The reliance was placed on the evidence of PWs.2, 3, 4, and 5, who were the eye-witnesses to the incident. On the basis of the eye-witness account, the learned Sessions Judge convicted the appellant.

7. Learned counsel for the appellant would submit that though the prosecution has projected PWs.2, 3, 4, and 5 as eye-witnesses to the incident, however, their names were not mentioned in the complaint filed by PW.1. Further, all the eye-witnesses have given different versions, contradicting one another. In the background of such contradictions, the version putforth by the witnesses cannot be believed. Learned counsel further submits that the prosecution has not examined LW.8, one Tirupathi, who had scribed the complaint/Ex.P1.

8. The main contention of the learned counsel for the appellant is that PW.7, who is a photographer, took the photographs of the appellant on the date of the incident, which is on 17.01.2015, however, the arrest of the appellant was shown on 21.01.2015 by the Investigating Officer. The said infirmity in the prosecution’s case goes to the root of the case, and false implication is apparent.

9. Learned counsel relied on the judgment of this Court in the case of P.Gangadhar v. State of Andhra Pradesh, 2006 (1) ALD (Crl.) 493 (AP) wherein it was held that any fact deposed by witness during trial, if not mentioned in the FIR or in the statements recorded under Section 161 Cr.P.C., amounts to an improvement and cannot be considered.

10. Learned counsel further relied on the judgment of the Hon’ble Supreme Court in the case of State of Haryana v. Mohd. Yunus, 2024 (1) ALD (Crl.) 196 (SC), wherein it was h