THE HON'BLE SRI JUSTICE RAJA ELANGO CRL.A.No.338 of 2009 JUDGMENT:
This appeal is directed against the judgment of the learned II Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.338 of 2008 dated 23.03.2009, whereby the appellant- accused No.1 was convicted for an offence under Section 307 of I.P.C. and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.3,000/-, in default to suffer simple imprisonment for one month.
The case of the prosecution, in brief, is as follows:
A.1, A.2 and PW.2 are natural brothers. There were disputes between the families of A.1 and PW.2 since PW.2 was evading payment of interest on the handloan obtained from A.1. A meeting was arranged to sort out disputes. During the course of which, PW.1, the wife of A.1, picked up a quarrel with PW.2. A.1, on the instigation of A.2, stabbed PW.2 resulting severe bleeding injuries on his neck and stomach.
The prosecution, in order to prove its case against the accused, examined P.Ws.1 to 8 and got marked Exs.P.1 to P.7 and M.O.1. The trial Court, on appraisal of the entire evidence, both oral and documentary, held that the prosecution has proved the case against A.1 for the offence under Section 307 of IPC and accordingly convicted and sentenced the accused as stated supra. A.2 was found not guilty for the offence under Section 307 IPC and accordingly acquitted him for the said offence. Aggrieved by the said conviction and sentence, appellant – A.1 preferred the present appeal.
The contention of the learned Counsel for the appellant-
accused is that the scene of offence was not established by the prosecution. According to PW.2, the scene of offence was at the house of A.2; according to PW.1, the scene of offence is at the house of A.1; and the Investigating Officer deposed that the offence took place in front of community hall.
Heard the learned Additional Public Prosecutor appearing for the respondent – State.
The point for consideration is whether the prosecution made out a case against A.1.
It is to be noted that, in the present case, at 1.00 p.m. PW.2, accompanied by his wife, PW.1, PW.3 and PW.4 went to the house of A.1. A.1, on the instigation of A.2, stabbed PW.2 which was witnessed by PWs.1, 3 and 4. Immediately, PW.2, the injured, was shifted to Care Hospital where he underwent treatment. It is to be noted that, even though the occurrence, according to witnesses, took place at 1.00 p.m., the complaint was lodged at 5.30 p.m. The police station is at a distance of 2 k.m. from the scene of offence. The prosecution did not give explanation either in the complaint or in the first information report with regard to the delay in lodging the complaint. It is true that mere delay in lodging the complaint is not fatal to the case of prosecution but, at the same time, the unexplained delay is fatal to the case of prosecution. As per the evidence of eye- witnesses, the crime scene took place in the house of A.1 and in their presence. But, as per the evidence of PW.2, the offence took place at the house of A.2 whereas the investigating officer deposed that the crime scene took place in front of the community hall. PW.8, the investigating officer, deposed that he visited the crime scene in front of the community hall Chandranagar, Basheerbagh, Hyderabad which is opposite to the house of A.1 and prepared Ex.P.5, rough sketch of the scene of offence. The evidence of PWs.1 to 4 cannot, therefore, be believed. Further, when the complaint is lodged after four hours and when there is dispute regarding the place of occurrence, it is unbelievable to accept the case as projected by the prosecution. Even though it is deposed by PW.5, doctor, that the injuries are serious in nature, mere opinion of doctor that the injuries are serious and grievous itself is not enough to come to a conclusion that the injuries are serious or grievous in nature. The said injuries have to be explained as per the provisions of Penal Code. Nothing is there on record to show that an offence under Section 307 IPC is attracted. Hence, this Court is of the view that even though the witnesses deposed the presence of the accused and the manner in which the accused attacked, it is distinctly unbelievable in view of the evidence adduced by the prosecution. From the above facts and circumstances, I am of the opinion that the prosecution failed to prove the guilt of accused beyond all reasonable doubt and the accused is entitled to benefit of doubt and consequent acquittal.
In the result, the Criminal Appeal is allowed and the conviction and sentence passed against the appellant - accused is set aside. The appellant - accused is acquitted of the offences with which he stood charged. The fine, if paid, shall be refunded to him. His bail bonds are cancelled. Miscellaneous petitions pending, if any, shall stand disposed of.
RAJA ELANGO,J Date:25.06.2014 usd