LexMALEMPATI PATIABI NARENDRA ETC versus GHATIAMANENI MARUTHI PRASAD AND ORS. ETC.
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A MALEMPATI PATIABI NARENDRA ETC. * - v. GHATIAMANENI MARUTHI PRASAD AND ORS. ETC. APRIL 27, 2000 ..,. B [K.T. THOMAS AND D.P. MOHAPATRA, JJ.] Penal Code, 1860 : Section 302 read with Section 149-Murder-Testimony of witnesses- c Conviction and sentence-On appeal, Held, pmsecution has failed to estab- Lish the guilt of the accused-On re-appreciation of evidence, testimony of prosecution witnesses not found reliable-Conviction and sentence, set aside. Sections 302134, 3021149 and 326-Murder by inflicting grievous inju- ries-Conviction under S. 326-Validity of-Held, assailants cannot escape ..... D fmm conviction under S. 302 atleast with the help of Section 34 if not with Section 149-High Cowt committed serious error by convicting the accused only under S. 326. Constitution of India, 1950 : Article 136-Concurrent findings regard- ing appreciation of evid.ence-Inte1ference with-Held, n01mally not called t .,.. E for-Howeve1; in a case where the conviction is to be alteredfmm one under .... S. 326 to that under S. 302 and consequent enhancement of sentence it would be necessmy to re-apprise the evidence in the interest of justice-Penal Code, 1860-Ss. 302134 and 326. Appellant-accused along with four others was prosecuted for an F offence under Section 302 read with Section 149 of the Penal Code. The prosecution case was that 'S' while proceeding towards his daughter's ...... house around 11 P.M. was attacked by accused persons with axe, knife etc. etc. 'S' succumbed to his injuries on the spot. PW-1, son of the deceased lodged a complaint against the accused persons including A-4. - G However, the Investigating Officer found that A-4 was in jail when the incident occurred. Consequently, A-4 was arraigned as an accused for hatching criminal conspiracy to murder the deceased. On appreciation of evidence, Trial Court convicted and sentenced the accused persons. How- ,. ever, on appeal, High Court while convicting A-1 and A-3 only for the offence under S. 326 IPC acquitted the remaining accused persons. Hence H the present appeals. 720 ' + M.P. NARENDRA ETC. v. G.M. PRASAD AND ORS. ETC. 721 -..... .... Disposing of the appeals, the Court A HELD : 1.1. Prosecution has failed to establish that the accused were the assa:Iants who attacked the deceased. On reappreciation of evidence the testimony of PWs was not found reliable. Thus, on the ground of reasonable doubt the comiction and sentence passed against A· 1 and A-3 is set aside. [728-B] B 1.2. PW-1 in his first written complaint stated that he saw A-4 who is the father of A-1 to &-3 participating in the occurrence and a specific role (inflicting axe bloWs on the deceased) has also been ascribed to that accused. But when PW-1 gave evidence in Court, he adopted a dubious c strategy by saying that A-4 was not present at the scene of occurrence but he was a person having striking resemblance to A-4 giving axe blows a,_n the deceased. Further, if PW-1 was present when the occurrence took ,Jr place, it does not stand to reason why he was completely spared by the assailants. It is difficult to believe thatif PW-1 was present, a young man of 33 like him could not have done even a bit to go to the rescue of his father D and if he had done so, he would have sustained injuries, atleast some minor -1 injuries. But the fact is that PW-1 did not sustain even a scratch on his person. If PW-1 waited to rush to his dying father till the assailants sfopped attacking him even then it is difl'foult to conceive that atleast the clothes of PW-1 could not have been smeared with some blood, if not E copious blood. But nobody has noticed even a drop of blood on his clothes. Thus, there is complete dearth of satisfactory explanation for relying on the testimony of PW-1. [725-C; 726-C-D] 1.3. PW-2 and PW-3 also said in their examination-in-chief that an assailant resembling A-4 had participated in the occurrence by hacking F _,. the deceased with an axe on the head. However, when PW-2 was asked how he was present in the village on that day when his grand-mother had passed away on the previous evening, he put forward an excuse that he was informed about the death of his grand-mother only on the next morning. It is difficult to believe that PW-2 was unaware of the serious condition of his G grand-mother particularly because his parents who were living with him, had already gone away to see the old lady in her death
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