THE HONOURABLE SRI JUSTICE K.SURENDER AND THE HONOURABLE SRI JUSTICE J. ANIL KUMAR CRIMINAL APPEAL No.1037 OF 2017 JUDGMENT: (per Hon’ble Sri Justice K.Surender)

1. The State is aggrieved by the judgment dated 19.05.2016 in S.C.No.224 of 2013, on the file of IX Additional District & Sessions Judge, Wanaparthy, acquitting the respondents /accused for the offence under Section 302 r/w. 34 of IPC.

2. Heard learned Additional Public Prosecutor for State and Sri K.Venkatesh Gupta, learned counsel for the respondents/accused.

3. P.W.1 is the sole eye witness in the case. According to him, he was living along with the deceased who is his brother- in-law and sister/P.W.3. P.W.1 went to the fields of the deceased at 6 p.m. one day prior to the incident. The next day morning around 6 a.m. while he was attending nature calls, he heard deceased shouting. He went there and saw A-1 attacking the deceased with an axe, A-3 beating him with a stick and A-2 holding the legs of the deceased. After assaulting the deceased, all the accused fled from the scene. The reasons for committing murder of the deceased was that A-1 to A-4 suspected that the deceased was having an illegal affair with the wife of A-1 for the past three years. Immediately P.W.1 called P.W.2 and informed about the incident and P.W.2 along with others came there in a tractor and took the deceased in the tractor to S.V.S.Hospital, Yenugonda. The Police went to the hospital and recorded P.W.1’s statement.

4. P.W.9 recorded the statement of P.W.1 in the hospital around 12:30 p.m. on 27.10.2011 and the same was registered as crime at 2:30 p.m.

5. On 29.10.2011, P.W.9 apprehended A-1 to A-3 and recorded their confession. At the instance of A-1, M.O.3/axe and M.O.4/stick were seized.

6. The deceased died on 30.10.2011 while undergoing treatment, as such, Section of law was altered to Section 302 r/w. 34 of IPC.

7. Learned Sessions Judge examined P.Ws.1 to 13 and marked Exs.P.1 to P.19 on behalf of the prosecution. M.Os.1 to 6 were also placed on record by the prosecution during the course of trial. The accused examined D.Ws.1 to 5 and marked Exs.D.1 to D.7 during the course of trial.

8. Learned Sessions Judge acquitted the accused on the following grounds:

i. There is a delay of nearly 6½ hours in lodging the complaint and 7 hours in complaint reaching the Court. The said delay of 13½ hours was not explained.

ii. P.W.1 is the only eye-witness and he stated that the dead body of the deceased was taken in the tractor. P.W.2 contradicted the said version stating that dead body was initially taken to the house of A-1 and from there the body was shifted to hospital in an Ambulance after one hour.

iii. P.W.8 admitted that there were two complaints made by P.W.1., one at Thimmajipet Police Station and another at Jadcherla Police Station. However, the present case was based on the complaint given in Thimmajipet Police Station and the fate of the complaint given at Jadcherla Police Station is not known.

iv. P.W.9 failed to explain regarding the complaint at Jadcheral Police Station and though he stated that he went to hospital and recorded the statements of witnesses, however, in the cross-examination, he admitted that he did not record statement of P.Ws.1 to

3 after FIR was registered, which was strange.

v. According to Ex.P.19/case sheet, it was informed to the Doctor/P.W.13 that some unknown persons assaulted the deceased, which is not explained by the prosecution.

9. Learned Public Prosecutor tried to impress upon the Court that the evidence of P.W.1 cannot be brushed aside only for the reason of there being 14 hours delay in complaint reaching the Court. In the cross examination, P.W.1 explained that he was hopping from one hospital to another, for which reason, he could not give complaint. Though P.W.1 was related to the deceased, that in itself cannot be made basis to disbelieve his evidence. Once the testimony of eye witness is convincing, there needs no corroboration. Only on the basis of version g