The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the Trial Court. The Trial Court’s acquittal bolsters the presumption that he is innocent.The appellate court should always keep in mind that the Trial Court had the distinct advantage of watching the demeanour of the witnesses. The Trial Court is in a better position to evaluate the credibility of the witnesses.The appellate court may only overrule or otherwise disturb the Trial Court’s acquittal if it has “very substantial and compelling reasons” for doing so. If two reasonable or possible views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.119-120 OF 2014

SUDHA RENUKAIAH & ORS.                 …. APPELLANTS

VERSUS

STATE OF A.P.                          …. RESPONDENT

J U D G M E N T

ASHOK BHUSHAN, J.

1.    These appeals have been filed against  judgment  dated  09.07.2013  of

High Court of Andhra Pradesh, allowing the Criminal Appeal No. 340  of  2009

and Criminal Revision Case No. 643 of 2008.Criminal Appeal was filed by  the

State  of  A.P.  and  Criminal  Revision  was  filed  by  Somarowthu   Laxmi

Samrajyam, wife of Siva Sankara  Rao  deceased.  The  High  Court  vide  its

judgment has set aside the order of the Trial Court acquitting  the  accused

and has convicted the accused under Section 302 read with Section  149  IPC.

The accused aggrieved by the judgment of High Court,  convicting  them  have

come up in these appeals.

2.    The prosecution case briefly stated is:

All the accused and the de facto complainants are permanent  residents

of Vellaluru village. Two factions, one of the accused party and another  of

complainant party had been attacking each other and several  criminal  cases

had been registered against both the factions.  One  Satyanarana,  belonging

to the complainant party was killed on  07.02.2003,  for  which  a  case  in

Crime No. 08 of 2003 of Ponnur Rural Police Station was registered  for  the

offences punishable under Sections 147, 148  and  302  read  with  149  IPC.

While so, another case in Cr. No. 35 of 2003 of Ponnur Town Police  Station,

was registered for the offences punishable under Sections 147, 148  and  302

read with 149 IPC against Somarowthu  Tirupathirao(hereinafter  referred  as

deceased No. 1),  Somarowthu  Siva  Sankara  Rao  (hereinafter  referred  as

deceased No. 2) and others who were alleged to have killed one  Sooda  China

Veeraiah and in connection with the said case, the above named two  deceased

and others were arrested and remanded to judicial custody.  The  Court  gave

conditional bail to them to the effect that they should  remain  at  Bapatla

only and shall report daily before the Bapatla  Police  Station,  and  shall

also appear before the Ponnur Court once in a week. In connection  with  the

above case, on 10.10.2013 the deceased No. 1 and No. 2, along  with  PWs.  1

to 6 and PW.9, went to Ponnur on three two-wheelers to attend the Court  and

after attending the Court, they were returning back in the  evening  and  on

receipt of the said information, all the accused except  A.2,  A.4  to  A.6,

A.11, A.13 and A.18 conspired together  and  as  A.18  was  having  a  lorry

bearing No. ADM 8373, all  of  them  collected  deadly  weapons  like  axes,

knives, rods and sticks, went in the  lorry  of  A.18  and  dashed  the  two

wheeler in which both the  deceased  and  PW.5  were  travelling.  Both  the

deceased fell down from two wheeler. Thereafter, the accused  attacked  them

indiscriminately and killed them and also inflicted  injuries  on  PW.5  and

they all ran away from the scene of offence in the  same  lorry  along  with

the weapons. Deceased No. 1 died on the spot and other injured were  shifted

to the Hospital. The others, who were  following  the  two  wheeler  of  the

deceased witnessed the incident  and  reported  the  matter  to  police  and

shifted the second deceased to Ponnur Hospital, where  the  Doctor  declared

him dead and other injured (P.W.5)  was  referred  to  Government  Hospital,

Guntur. On intimation, the police went and recorded the statement  of  PW.1.

PW.20 the Head Constable, Bapatla Town P.S., handed over the file  to  PW.21

who registered a case in Crime No.57 of 2013  for  the  offences  punishable

under Sections 147, 148, 307, 302 read with 149  IPC.  After  completion  of

investigation, PW.23 laid the charge sheet.

3.    The incident took place at 04:00 PM. Deceased-1, Tirupati Rao died  on

spot, whereas Siva Sankara Rao, Deceased-2 and S. Venkaiahnaidu (PW.5)  were

immediately taken to Govt. Hospital, Ponnur at which Hospital  Siva  Sankara

died  between  05:30  PM  to  06:00   PM.   Venkaiahnaidu(PW.5),   who   was

unconscious, on advice of Doctors was shifted  to  Govt.  Hospital,  Guntur.

The Police came at Govt. Hospital, Ponnur and  recorded  the  statement   of

Sivarama Krishnaiah (PW. 1) at 06:00PM, on the  basis  of  which  statement,

the FIR was registered, as Criminal Case No. 57 of 2003 under  Section  147,

148 and 302 read with 149 of IPC.

4.    PW.23, Investigating Officer(hereinafter referred to as ‘IO’) took  up

the investigation on  10.10.2003  itself.  After  visiting  Govt.  Hospital,

Guntur, IO  found  Venkaiahnaidu   unconscious.  He  could  not  record  the

statement of PW.5. PW.5 on  14.10.2003  was  shifted  to  Hi-tech  Hospital,

Guntur where he regained  consciousness  after  20  days.  IO  recorded  the

statement of PW.5 on 04.11.2010 at Hi-tech Hospital.  The  IO  also  visited

the place of incident, seized various articles, prepared the sketch map  and

also got the  spot  photographs.  After  conducting  the  investigation,  IO

submitted the charge sheet  against  19  accused,  out  of  which  A.18  had

already died on 14.12.2003. All the accused were put on  trial.  Prosecution

before the Trial Court examined PW.1 to PW.23, marked exhibit  P.1  to  P.25

and also marked M.O.1 to 16. PW.1 to PW.6 and PW.9 are the eye-witnesses  of

the incident. PW.7 and PW.8 are the wives of first and second deceased,  who

after knowing about the incident rushed to the scene of offence.  PW.10  was

examined to show that on the date of incident,  she  had  seen  the  accused

making preparation in a lorry in front of his house. PW.16 is a  doctor  who

treated the injured at Govt. Hospital, Guntur.  Doctors  who  conducted  the

postmortem of two dead bodies  were  also  examined,  as  PW.17  and  PW.18.

P.W.23  is  Investigating  Officer  who  conducted  the  investigation.  The

accused did not lead any evidence. During pendency of the  trial  A.1,  A.9,

A.11 and A.18 having died, trial abated against such accused.

5.    The Trial Court vide  its  judgment  dated  24.12.2007  acquitted  the

accused. Trial Court after referring to evidence of  eye-witnesses  came  to

the conclusion that there  were  contradictions  and  omissions.  The  Trial

Court observed that medical evidence does not support any injury  by  battle

axe. After referring to the injuries of P.W.5 and  medical  evidence,  Trial

Court observed that it is not possible to hold  that  injuries  were  caused

with sharp edge weapon like hunting sickle. Trial Court  held  that  accused

are entitled to benefit of doubt and acquittal. Aggrieved  by  the  judgment

of Trial Court, State filed an appeal being Criminal Appeal No.340 of  2009.

Somarowthu Laxmi Samarajaya  wife  of  Siva  Sanakara  Rao  deceased,  filed

Criminal Revision No.  643  of  2008.  Both  Criminal  Appeal  and  Criminal

Revision were heard together and have been allowed by the  High  Court.  A.1

to A.3, A.5 to A.7 and A.11 were found guilty under Section  302  read  with

149 IPC  and  they  have  been  convicted  and  sentenced  to  undergo  life

imprisonment and to pay a fine of Rs.500/- each. Acquittal of  A.12  to  A.9

have been affirmed. These appeals have been filed by  A.2,  A.3,  A.5,  A.6,

A.7 and A.11 (A-1, being dead).

6.    We have heard Shri A.T.M. Ranga Ramanujam  and Shri Sidharath  Luthra,

learned senior  counsel  for  the  appellants.  Ms.  Prerna  Singh,  learned

counsel has appeared on behalf of the State.

7.    Learned counsel for the appellants in support of the appeal  contended

that the order of acquittal by the Trial Court was based on appreciation  of

evidence on record which order of acquittal required no interference by  the

High Court. It is contended that even if two views are possible,  the  order

of Trial Court acquitting the accused  need  no  interference  by  Appellate

Court. The medical evidence  which  was  led  by  the  prosecution  did  not

support the ocular evidence led  by  so  called  eye-witnesses.  Hence,  the

Trial Court  rightly  disbelieved  the  prosecution  case.  The  High  Court

wrongly put the burden on the  accused  to  prove  that  deceased  and  eye-

witnesses were not required to attend the Court whereas burden lies  on  the

prosecution to prove that  the  deceased  and  all  the  eye-witnesses  were

required  to  attend  the  Ponnur  Court  from  where  they  claimed  to  be

returning.  There  being  long  standing  enmity  between  the  accused  and

complainant party, the accused have been roped in. When Doctors came  before

the Court for recording their evidence, the weapons which were  seized  were

not shown to them, so  as  to  form  an  opinion  whether  injuries  on  the

deceased and injured witness could have been caused by such  weapons,  which

prejudicially affect the prosecution case.

8.    Learned counsel for the State  refuting  the  submissions  of  learned

counsel for  the  appellants  contends  that  the  High  Court  has  rightly

reversed the order of acquittal. It is contended that eye-witnesses  account

given by the eye-witnesses  was  worthy  of  reliance  and  Trial  Court  on

account of insufficient reasons discarded such evidence. The  injured  PW.5,

Venkaiahanaidu, eye-witness had fully proved the incident and   specifically

proved the roles of accused which evidence ought not to have been  discarded

by the Trial Court. It is submitted that the High Court  has  correctly  re-

appreciated the evidence and  has  given  cogent  reasons  for  finding  the

evidence trustworthy and believable. The account of injuries  as  proved  by

eye-witnesses  was  fully  corroborated  with  the  medical  evidence.   The

evidence of eye-witnesses who were accompanying the  deceased  Nos.1  and  2

could not have been discarded as  interested  witnesses  whereas  they  were

family members who were accompanying the deceased  on  the  motor-cycle  and

others on two-wheeler which eye-witnesses  could  prove  the  incident.  The

judgment of conviction by the High Court is based  on  correct  appreciation

of evidence and the accused having been found guilty,  the  appeals  deserve

to be dismissed.

9.    Learned counsel for the appellants  has  placed  reliance  on  several

judgments of this Court which  shall be referred to  while  considering  the

submissions of the parties.

10.   As noted above, PW.1 to PW.6 and PW.9 are  all  eye-witnesses  of  the

incident. PW.5, Venkaiahanaidu is an injured witness who was  travelling  on

the Hero Honda motor-cycle driven by  Tirupati  Rao,  his  father  (deceased

No.1). The Trial Court   after  commenting  on  the  evidence  of  the  eye-

witnesses had proceeded to discard the evidence by giving some  reasons.  We

have carefully looked  into  the  order  of  the  Trial  Court  as  well  as

depositions of eye-witnesses and adverted to the reasons given by the  Trial

Court for not believing the evidence. We shall refer to  the  reasons  given

by the Trial Court for discarding eye-witnesses one by one.  We  first  take

up the deposition of the injured witness-PW.5 and the reasons given  by  the

Trial Court to discard his evidence.

11.   As noted above, PW.5, aged about 12 & ½  years on the day of  incident

was sitting on Hero Honda motor bike driven by  his  father,  Tirupati  Rao,

deceased No.1, Siva Sankara Rao deceased No. 2,  was  also  sitting  on  the

same motor  bike.  PW.5,  Venkaiahanaidu  in  his  eye-witness  account  has

deposed that he, his father and Siva Sankara Rao were on  Hero  Honda  motor

bike returning to Baptala, PW.1- Sivarama Krishnaiah, PW.3, Murali  Krishna,

were coming on scooter whereas Veerahaviah, PW.4, Venkatalakshmi  Narasimha,

PW.2 and  PW.9, Venkateswara Rao were coming on TVS  moped.  They  left  for

about 3 or 3.40 p.m. and  at about 4 p.m. when they  reached  the  scene  of

offence, Tirupati Rao, his father observed that a lorry driven by accused A-

3 was coming from opposite direction, his father turned the  vehicle  to  go

back. At that time the lorry hit their motorcycle, they all fell  down.  All

the accused were in the lorry with knives and  axes.  His  father  and  Siva

Sankara Rao were attacked by the accused with axes  and  knives.  A-19  beat

PW.5 on his right temporal bone with knife whereas Botchu Vasu –  A-11  beat

with stick on his right side.  He stated that he  lost  consciousness  which

he regained at Hitech  Hospital,  Guntur.  It  has  come  on  evidence  that

immediately after occurrence both  Shiva  Shankar  Rao  and  Venkaiah  Naidu

were taken to Government Hospital, Ponnur. Shiva Shankar  Rao  died  between

5.30 to 6 p.m. at Government Hospital, Ponnur and Venkaiahanaidu,  PW.5  was

shifted to Government Hospital, Guntur where he was examined  at  6.15  p.m.

by Dr. Vinayvardhan, PW.16, who in his evidence has clearly proved  that  on

10.10.2003 at 6.15 p.m. he examined injured  Venkaiahanaidu  accompanied  by

Murali Krishna, PW.3 and injuries were found in  his  body.  PW.23,  IO  had

taken the investigation in the evening on  10.10.2003  itself  and  recorded

statement of PWs.1, 2, 3, 4, 6 and 9 on the same day. He also  on  the  same

day came to know that injured, PW.5  was  shifted  to  Government  Hospital,

Guntur where he went and found  PW.5 unconscious, hence, statement  of  PW.5

could not be recorded on that day.

12.   Now, let us come to the judgment of the Trial Court and advert to  the

reasons given by the Trial Court for discarding the evidence of injured eye-

witness. In paragraph 15 of the judgment,  Trial  Court  has  observed  that

PW.23 in his statement has stated that when he went to Government  Hospital,

Ponnur, PW.5 was absent and he was shifted to  Government  Hospital,  Guntur

as  his  condition  was  critical.  The  Trial  Court  has   observed   that

unfortunately “the Doctor at Government Hospital, Ponnur  was  not  examined

and there is no record to show that PW.5 was also taken  to  the  Government

Hospital, Ponnur along with the  second  deceased”.  The  above  observation

that no Doctor from Government Hospital, Ponnour was examined nor  there  is

any record to show that PW.5 was taken to Government  Hospital,  Ponnur  has

no  significance  since  Venkaiahanaidu,  PW.5  was  shifted  to  Government

Hospital, Guntur where he was examined at 6.15 p.m. on the  same  day  which

was proved by the Doctor. PW.16. PW.1 and PW.3, both had stated  that  after

the incident both the injured  Siva  Sankara  Rao  and  Venkaiahanaidu  were

taken to the Government Hospital, Ponnur and after 5.30  p.m.  Siva  Sankara

Rao died and Venkaiahanaidu was asked to be taken  to  Government  Hospital,

Guntur. Non-examination of Doctor to  prove  that  injured  PW.5  was  first

taken to Government Hospital, Ponnur  was  inconsequential  and  immaterial,

when there is no dispute  that   injured  was  admitted  in  the  Government

Hospital, Guntur and was examined by the Doctor at 6.15  p.m.  on  the  same

day. In paragraph 16 Trial Court has referred to evidence of  PW.16,  Doctor

who examined PW.5 on 10.10.2003 at 6.15 p.m. The evidence of  Doctor,  PW.16

extracted by the Trial Court in paragraph 16 of the judgment that PW.16  who

was working as CMO in the Government Hospital, Guntur  has  stated  that  on

10.10.2003 at 6.15 p.m. he  examined  Venkaiahanaidu,  PW.5  accompanied  by

Murali Krishna, PW.3, the Doctor was also noted that PW.5  was  injured  and

said to be beaten  with  Veta  Kodavali  (hunting  sickle).   The  following

injuries were noticed by the Doctor:

“1.   Diffused swelling 10 x 10 cm on right occipital  partial  region  with

one centimeter laceration-bleeding.

2.    Graze abrasion on left hand and fore  arm  10  x  5  cm  size  red  in

colour.

X-Ray skull reveals no bone injury  X-ray  left  hand  with   wrist  reveals

fracture noted in the  lower end of radius. Ward opinion with I.P.  No.49385

head injury patient absconded on 14.10.2003.

I am of opinion basing on the X-ray and ward  opinion  the  injury  No.2  is

grievous in nature; No.1 is simple in nature might have been caused  due  to

blunt  and  rough  objects  and  aged  about  1  to  6  hours  prior  to  my

examination. Ex.P13 is the wound certificate issued by me.”

13.   Trial Court  after  noticing  the  evidence  of  PW.16  has  made  the

following observation :

“In fact, this evidence gives rise to many doubts. First of all  it  is  not

possible to hold that the nature of injuries  could  be  caused  with  sharp

edged weapon like hunting sickle.”

14.   The Trial Court held that it is not possible to hold that  the  nature

of injuries could be caused with sharp edged  weapon  like  hunting  sickle.

This was one of the reasons for discarding the evidence of PW.5.

15.   PW.5 himself came in the  witness  box  and  was  examined.  PW.5  has

deposed about the injuries caused to him. In his statement PW.5 stated:

“Velivala Akkaiah (A19) beat me on my right  temporal  bone  with  a  knife.

Botchu Vasu(A11) beat with a stick on  my  right  sticks.  Valivala  Akkaiah

(A19) caught hold of my hands and legs and thrown me. I lost  consciousness.

I regained consciousness in Hitch Hospital, Guntur.

After that police examined me.”

16.   When PW.5 has stated that he was beaten by knife and  stick  on  right

temporal bone, the injuries found in his person have to be  looked  into  in

the light of the evidence given by him.

17.   When, PW.5 himself has stated that he was attacked by knife and  stick

the injuries which were noticed by the  Doctor  were  caused  by  knife  and

stick, since there is no inconsistency between the ocular evidence  of  PW.5

and medical evidence of PW.16, the reason  given  by  the  Trial  Court  for

discarding the evidence of PW.5 is incorrect.

18.   The Trial Court further has observed that  PW.23  had  not  taken  any

endorsement from the  Doctor  to  the  effect  that  PW.5  was  in  fact  in

unconscious state of mind, when he visited Hospital on 10.10.2003 and  found

PW.5 unconscious. The Trial Court  further  observed  that  since  PW.5  was

unconscious for considerable period and regained consciousness nearly  after

more than 20 days, it was expected that the investigation agency  to  secure

the presence of the Doctor while examining this  witness.  The  Trial  Court

made the following observation in paragraph 17:

“Even according to  prosecution,   PW.5  was  unconscious  for  considerable

period  and  regained  consciousness  nearly  after  more  than   20   days.

Naturally, we will expect the investigation agency to  secure  the  presence

of the doctor while examining this witness. In the above circumstances,  any

amount of doubt is created about the examination of this  witness.  Even  at

the sake of repetition it must be pointed out that the absence  of  evidence

from the doctor PW.16 that PW.5 was brought to the hospital  in  unconscious

state, the whole theory must be disbelieved. Which again will eliminate  the

evidence of PW.5. Now we got the evidence of PW.1, 2, 4, 5 and 9.”

19.   The Trial Court has drawn adverse inference against  the  evidence  of

PW.5 on the ground that no evidence was given by  the  Doctor,  PW.16  about

the unconscious state of PW.5, hence, the whole theory must be  disbelieved.

PW.5 has stated that after being attacked on  the  scene  of  occurrence  he

became unconscious and  regained  consciousness  only  at  Hitech  Hospital,

Guntur.

20.   PW.23, IO in his statement has  clearly  stated  that  he  went  after

recording the evidence of  PW.1,  2,  3,  4,  6  and  9  to  the  Government

Hospital, Guntur and found the injured Venkaiahanaidu, PW.5  in  unconscious

state, hence, could not record his statement. Following was stated by IO  in

his statement:

“I visited GGH Guntur and found the injured S.  Venkaiah  Naidu  (P.W.5)  in

unconscious state; Hence, I could not record his statement.”

21.   PW.5 appeared in the Court and in  examination-in-chief  question  was

put to him that whether he was unconscious at the time when he was  admitted

in Government Hospital, Guntur  and  when  he  regained  his  consciousness.

PW.5, both in examination-in-chief  and  cross-examination  stated  that  he

regained  consciousness  after  20  days   and   next   day   of   regaining

consciousness his statement was recorded.

22.   Doctor,  PW.16,  who  appeared  before  the  Court  and  recorded  his

evidence was not even put any question as  to  whether  when  Venkaiahanaidu

was  admitted  in  Government  Hospital,  Guntur   he   was   conscious   or

unconscious. The observation   of  the  Trial  Court  that  there  being  no

evidence that PW.5 was unconscious and in the absence of evidence that  PW.5

was brought to the Hospital in unconscious state, the whole theory is to  be

disbelieved, is wholly incorrect and  perverse  appreciation  of  evidence.

There being evidence of PW.5 and PW.23 that he was unconscious when  he  was

admitted in Government Hospital, Guntur and there is  no  contrary  evidence

on the record, the view of  the  Trial  Court  that  whole  theory  must  be

disbelieved is perverse and has rightly been reversed by the High Court.

23.   It is also relevant to notice that observation has been  made  by  the

Trial Court that IO, PW.23 ought to have been  taken  endorsement  from  the

Doctor that PW.5 was in unconscious state of mind  on  10.10.2003,  although

there is evidence  that  he  was  unconscious  on  10.10.2003  when  he  was

admitted in the Hospital, the mere fact that certificate  was  not  obtained

by IO from the Doctor is inconsequential. Furthermore, it is   well  settled

that even if IO has committed any error and has been negligent  in  carrying

out any investigation  or in the investigation there is  some  omission  and

defect, it is the legal obligation on the part of the Court to  examine  the

prosecution evidence de hors such lapses. In C.  Muniappan  and  others  vs.

State of Tamil Nadu, (2010) 9 SCC 567,  following  has  been  laid  down  in

paragraph 55:

“Where there has been negligence on the part of the investigating agency  or

omissions, etc. which resulted in defective investigation, there is a  legal

obligation on the part of the court  to  examine  the  prosecution  evidence

dehors such lapses, carefully, to find out  whether  the  said  evidence  is

reliable or not and to what extent it is reliable and  as  to  whether  such

lapses affected the object of finding out the truth.”

24.   The High Court has specifically considered the  evidence  of  PW.5  in

paragraphs 27 and 28 of the judgment. The High Court  has  rightly  observed

that the fact of sustaining injuries by this witness has not been denied  or

disputed nor it was suggested to him that he sustained those injuries  at  a

different  place  in  a  different  manner  in  the  hands  of  some   other

assailants.  The High Court observed that  some  lapses  on  behalf  of  the

investigation in examining the Doctor of the Government Hospital, Guntur  or

at Hitech Hospital cannot be taken as sole basis so as to doubt the case  of

the prosecution.  When  PW.5  was  unconscious,  the  delay  in  examination

cannot be said to be fatal to the case of the prosecution. The  High  Court,

thus, has correctly appreciated and relied on the evidence of PW.5 which  we

find fully in accordance with law.

25.   The injured witness PW.5 having given specific  role  of  the  persons

who caused injuries to  deceased Nos.1 and 2 which stands corroborated  with

the medical evidence, ignoring the evidence of PW.5 an  injured  witness  on

the grounds as noted above by the Trial Court is clearly  unsustainable  and

the High Court rightly after considering  all  aspects  of  the  matter  has

relied on the evidence of PW.5 for holding the accused guilty.

26.   We now come to the reasons given by the  Trial  Court  for  discarding

evidence of other eye-witnesses. With regard to PW.1, Trial Court says  that

he has admitted that in Ex.P1, the names of A12 to A19  were  not  mentioned

although he stated that he  gave  the  names  of  the  accused  when  Police

examined him. The  Trial  Court  observed  that  so  called  conspiracy  and

participation of  A12 to A19 is clouded with  doubt. Even  if,  A12  to  A19

have been acquitted, their acquittal  does  not  lead  the  Trial  Court  to

discard the prosecution case as given in Ex.P1 and supported by PW.1 in  his

oral evidence. We are, thus, of the view that there is no reason to  discard

the evidence of PW.1 who was  an  eye-witness.  PW.21  is  Sub-Inspector  of

Police who stated that he received phone call at about 5 p.m. on  10.10.2003

about the offence. He immediately rushed to the scene of offence and  learnt

that two injured persons were shifted to Ponnur Government Hospital  and  he

also noticed there a Hero Honda Passion. After posting guard  at  the  scene

of offence, SI proceeded to Government Hospital, Ponnur  where  he  came  to

know that Head Constable 690(PW.20) had already recorded the statement  from

the complainant. The statement of PW.1 was recorded at 6 p.m. as was  stated

by PW.23, IO in his deposition.  The  information  of  offence  having  been

received by  Police  within  one  hour  and  statements  of  witnesses  were

recorded by 6 p.m. in the presence of PW.1 at the Hospital corroborates  the

prosecution case of occurrence at 4 p.m. and  shifting  of  injured  to  the

Hospital immediately. The injured  Siva  Sankara  Rao  had  died  at  Ponnur

Hospital between 5.30 to 6 p.m., inquest report of  which was also  prepared

immediately. We are, thus, of the view that  the  Trial  Court  without  any

valid reason has discarded the evidence of PW.1 and the High Court  did  not

commit an error on placing reliance on PW.1  who  made  statement  and  gave

detail of entire incident in his statement and details of  the  accused  and

manner of carrying  out  the  assault  on  both  the  deceased  and  injured

witness.

27.   With regard to PW.2, the Trial Court  states  that  when  PW.21,  Sub-

Inspector went on the scene of offence, he did not find PW.2 present on  the

scene whereas PW.1 has informed that while taking the  second  deceased  and

PW.5 to Government Hospital, Ponnur, PW.2 was  asked  to  present  near  the

dead body of first  deceased.  The  statement  of  PW.2  being  recorded  at

Government Hospital, Ponnur his  presence  at  Ponnour  Hospital  cannot  be

discarded. We are of the view that only due to the reason that  he  was  not

found at the place of occurrence when PW.21 visited the spot does  not  lead

to the conclusion that his eye-witness account be discarded.

28.   The  Trial  Court  has  observed  that  prosecution  did  not  try  to

establish the fact that on 10.10.2003, i.e., on the date of  incident  these

witnesses and the deceased were required to be  present  before  the  Ponnur

Court. The Trial Court further stated that presence  of  some  witnesses  at

Ponnur Court was not necessary particularly Kalyani, PW.6  daughter  of  the

first deceased. It has come in the evidence that all the  persons  who  were

returning from Ponnur Court, presence of few of them was  not  necessary  at

Ponnur Court. It has come in the evidence  that  second  deceased  and  some

other who were returning on 10.10.2003 were under the conditional  bail  and

were to appear before the Court once in a week.  The  mere  fact  that  some

other persons were not required to be present in the Court also  went  along

with those who were to go to the Court is neither  unnatural  nor  uncommon.

In the accused accompanying by the other members of the family  while  going

to the Ponnur Court nothing is abnormal on the basis of  which  any  adverse

inference can be drawn by the Trial Court.

29.   One  of  the  submissions  raised  by  the  learned  counsel  for  the

appellants is that Doctor who appeared before the Court was  not  shown  the

weapon to give his opinion as to whether injuries  could  have  caused  with

such weapon or not. Learned counsel for the appellants relied  on  the  case

in Kartarey and others vs. State of U.P., 1976 AIR SC 76=(1976 (1)  SCC  172

para 26), wherein in paragraph 25 following has been stated:

“25………It is the duty of the prosecution, and no less of the  Court,  to  see

that the alleged weapon of the  offence,  if  available,  is  shown  to  the

medical witness and his opinion invited as to whether  all  or  any  of  the

injuries on the victim could be caused with that weapon. Failure  to  do  so

may, sometimes, cause aberration in the course of justice…..”

30.   In the present case Dr. N. Subba Rao, PW.17 appeared before the  Court

who had conducted the postmortem of Tirupati Rao. Doctor  in  his  statement

has stated that the injuries could be caused with battle  axes  and  knives.

PW.18 has conducted the postmortem of Siva Sankara  Rao.  PW.18  has  stated

that “injuries noted in my postmortem can be caused  by  axes,  battle  axes

and knives”.  The eye-witnesses in their  eye-witness  account  have  stated

that accused used axe, knives and sticks while attacking on  deceased  Nos.1

and 2.  The injuries noted in the postmortem of deceased  Nos.1  and  2  are

injuries which can be caused by axe, knives and sticks. Thus, there  was  no

inconsistency with medical evidence and the ocular evidence.  The  death  of

both deceased Nos.1 and  2  was  homicidal  in  nature.  A  perusal  of  the

statements of the PW.17 and 18, Doctors  who  conducted  the  postmortem  as

well as PW.16 who gave evidence on injuries of  PW.5,  indicates  that  they

were not shown the weapons by which injuries were caused. It  is  useful  to

refer to the external injuries noted by PW.17 on the dead body  of  Tirupati

Rao. In the statement of PW.17, he stated as follows:

“On 11-10-2003 at about 3-1 p.m., I conducted postmortem on  the  dead

body of a male body by name Somarouthu  Tirupathirao,  first  deceased.  The

external appearance regormortis passed of External injuries:-

Cut injury of 11x2x1 cm., in oblique direction  over  the  left  ear  lobule

extending towards temporal region and downwards towards neck.

Cut injury 12×4 cm.,  bone  deep  on  left  parity  occipital  region.  Deep

dissection shows linear fracture of left parital bone.

Cut injury of 5×2 cm., scale deep on left front parital region.

Cut injury of 10×5 cm., skin deep on left thigh:

Cut injury of 20×2 cm., x2.5 cm.,  from  dorsum  of  right  forearm  to  the

dorsum of hand. Deep dissection shows both radius and ulna fractured.

Cut injury 8×5 cm., skin deep over upper 1/3rd of upper arm.

Cut injury of 8 cm., x 3×3 4 cm., encircling left shoulder  deep  dissection

shows displacement head of humorous posterior.

Cut injury of 7 cm., x 2 x 2 cm., on the back of left shoulder region.

A crushed inury on left leg 22 x 10 cm. bone  deep.  Deep  dissection  shows

both tibia and fibula fractured.

A cut injury of 8 cm.  x  3  cm.,     bone  deep  in  the  middle  of  right

thigh. Deep dissection shows of   right femur fracture at middle.

Cut injury of 10x2cm., skin       deep on left inter scapular       area  on

left of back of chest.

Cut injury of 10×2 cm., skin      deep on back of  chest  below       injury

no.11.

Cut injury of 10×2 cm., skin      deep on right side of back of    chest.

Stab injury of 6×2 cm., on  right  lumbar  region  and  deep      dissection

shows a lacerated      injury of 2×1 cm., over right    kidney  on  superior

lateral     region.

An abrasion injury 4 cm., size    on back of right thigh.”

31.   Looking to the injuries as noticed by PW.17, it is clear that the  cut

injuries as noticed above could be by axe and knife as  well  as  by  battle

axe as opined by the Doctor. The fact that  weapon  was  not  shown  to  the

Doctor nor in the cross-examination attention  of  the  Doctor  was  invited

towards the weapon, is not of much consequence in the facts of  the  present

case where there was clear medical evidence that injuries  could  be  caused

by knife, axe and battle axe. It is not the contention before  us  that  the

injuries as noted by the Doctors in the postmortem of deceased Nos.1  and  2

could not have been caused by knives and axes. The submission has also  been

raised that it was put to the Doctor that injuries by battle  axe  could  be

half moon, Doctor himself admitted in his report that he  has  not  reported

depth of the injury, middle of the injury nor margins of the  injuries  have

been noted. He has not  described  any  injury  as  the  half  moon.  Doctor

himself has admitted that he has not described the shapes of  the  injuries,

depth and middle of the injuries. The above medical evidence does  not  lead

to the conclusion that injuries as noticed by the  Doctors  could  not  have

been caused by axe, knives and battle axe. The eye-witnesses,  PW.1,2,3  and

5 have clearly mentioned about the weapons used by the  accused  which  eye-

witnesses accounts  are in accordance with medical evidence. Thus, mere non-

showing of the weapons to the Doctors at the time of  their  depositions  in

the Court is inconsequential and in no manner weakens the prosecution  case.

Some discrepancies referred by the Trial Court in  the  statements  of  eye-

witnesses were  inconsequential.  The  eye-witnesses  after  lapse  of  time

cannot give picture perfect report of the injuries caused  by  each  accused

and the minor inconsistencies were inconsequential. It is  useful  to  refer

to the judgment of  this  Court  in  Chandrappa  and  others  vs.  State  of

Karnataka, (2008) 11 SCC 328. In paragraphs 17 and 18 following was stated:

“17. It has been contended by the learned counsel for  the  appellants  that

the discrepancies between the statements of the eyewitnesses inter se  would

go to show that they had not seen the incident and no  reliance  could  thus

be placed on their testimony. It has been pointed out that their  statements

were discrepant as to the actual manner of assault and as  to  the  injuries

caused by each of the accused to the deceased  and  to  PW  3,  the  injured

eyewitness. We are  of  the  opinion  that  in  such  matters  it  would  be

unreasonable to expect a witness to give a picture  perfect  report  of  the

injuries caused by  each  accused  to  the  deceased  or  the  injured  more

particularly where it has been proved on record that the injuries  had  been

caused by several accused armed with different kinds of weapons.

18. We also find that with the passage of time the memory of  an  eyewitness

tends to dim and it is perhaps difficult for  a  witness  to  recall  events

with precision. We have gone through the record and find that  the  evidence

had been recorded more than five years after the incident and if the  memory

had partly failed the eyewitnesses and if they had not been able to give  an

exact description of the injuries, it would not detract from the  substratum

of their evidence. It is however very significant that PW 2  is  the  sister

of the four appellants, the  deceased  and  PW  3  Devendrappa  and  in  the

dispute between the brothers she had continued to  reside  with  her  father

Navilapa who was residing with the  appellants,  but  she  has  nevertheless

still supported the prosecution. We  are  of  the  opinion  that  in  normal

circumstances she would not have given evidence against the  appellants  but

she has come forth as an eyewitness and supported  the  prosecution  in  all

material particulars.”

32.   Learned counsel for the appellants has also  placed  reliance  on  the

judgment of  this Court in Eknath  Ganpat  Aher  and  others  vs.  State  of

Maharasthra and others, (2010) 6 SCC 519.  In support  of  the  case  it  is

mentioned that in the case of group  rivalries  and  enmities,  there  is  a

general  tendency  to  rope  in  as  many  persons  as  possible  as  having

participated in the assault. There  cannot  be  any  dispute  to  the  above

proposition laid down in paragraph  26  of  the  judgment  which  is  quoted

below:

“26. It is an accepted proposition that in the case of group  rivalries  and

enmities, there is a  general  tendency  to  rope  in  as  many  persons  as

possible as having participated in the  assault.  In  such  situations,  the

courts are called upon to be very cautious and sift the evidence with  care.

Where after a close scrutiny of the evidence, a reasonable doubt  arises  in

the mind of the court with regard to the participation of any of  those  who

have been roped in, the court would be obliged to give the benefit of  doubt

to them.”

33.   However, when there are eye-witnesses including  injured  witness  who

fully support the  prosecution  case  and  proved  the  roles  of  different

accused,  prosecution case cannot be negated only on the ground that it  was

a case of group rivalry. Group rivalry is double edged sword.

34.   Learned counsel lastly contended that there  are  limitations  in  the

appellate power while exercising it as against an  order  of  acquittal.  He

has relied on the judgment of this Court in  Dhanpal  vs.  State  by  Public

Prosecutor, Madras, (2009) 10 SCC 401.  In  paragraphs  21,  22  39  and  41

following has been stated:

“21. On proper evaluation of the Trial Court  judgment,  we  hold  that  the

view taken by the Trial Court was certainly a possible or a plausible  view.

It is a well-settled legal position that when the view which has been  taken

by the Trial Court is a possible view, then  the  acquittal  cannot  be  set

aside by  merely  substituting  its  reasons  by  the  High  Court.  In  our

considered view, the impugned judgment of the High Court is contrary to  the

settled legal position and deserves to be set aside.

22. The earliest case which dealt with the controversy in  issue  at  length

is of Sheo Swarup v. King Emperor. In this case, the ambit,  scope  and  the

powers of the appellate court in dealing with an  appeal  against  acquittal

have been comprehensively dealt with by  the  Privy  Council.  Lord  Russell

writing the judgment has observed as under: (IA at p. 404):

“…  the  High  Court  should  and  will  always  give  proper   weight   and

consideration to such matters as (1) the views of the trial Judge as to  the

credibility of the witnesses; (2) the presumption of innocence in favour  of

the accused, a presumption certainly not weakened by the fact  that  he  has

been acquitted at his trial; (3) the right of the accused to the benefit  of

any doubt; and (4) the slowness  of  an  appellate  court  in  disturbing  a

finding of fact arrived at by a Judge who had the advantage  of  seeing  the

witnesses.”

The law succinctly crystallised in this case has been consistently  followed

in subsequent judgments by this Court.

39. The following principles emerge from the cases above:

1. The accused is presumed to be innocent until proven guilty.  The  accused

possessed this presumption when he was before the  Trial  Court.  The  Trial

Court’s acquittal bolsters the presumption that he is innocent.

2. The power of reviewing evidence is  wide  and  the  appellate  court  can

reappreciate the entire evidence on record. It can review the Trial  Court’s

conclusion with respect to both facts and law, but the appellate court  must

give due weight and consideration to the decision of the Trial Court.

3. The appellate court should always keep in mind that the Trial  Court  had

the distinct advantage of watching  the  demeanour  of  the  witnesses.  The

Trial Court is in a better position  to  evaluate  the  credibility  of  the

witnesses.

4. The appellate court may only overrule  or  otherwise  disturb  the  Trial

Court’s acquittal if it has “very substantial and  compelling  reasons”  for

doing so.

5. If two reasonable or possible views can  be  reached—one  that  leads  to

acquittal, the other to conviction—the  High  Courts/appellate  courts  must

rule in favour of the accused.

41. The settled legal position as explained  above  is  that  if  the  Trial

Court’s view is possible or plausible, the High Court should not  substitute

the same by its own possible view. In the facts and  circumstances  of  this

case, the  High  Court  in  the  impugned  judgment  was  not  justified  in

interfering with the well-reasoned judgment and order of  the  Trial  Court.

Consequently, this appeal filed by the appellant is allowed and disposed  of

and the impugned judgment of the High Court is set aside.”

35.   In State of U.P vs. Anil Singh, (1988)( Supp).  SCC  686,  this  Court

has  held  that  although  when  two  views  are  reasonably  possible,  one

indicating conviction and other acquittal, this  Court  will  not  interfere

with the order of acquittal but Court shall never hesitate to  interfere  if

the acquittal is perverse in the sense that no reasonable person would  have

come to that conclusion, or  if  the  acquittal  is  manifestly  illegal  or

grossly unjust. In paragraph 14 of the judgment following has been stated:

“14. The  scope  of  appeals  under  Article  136  of  the  Constitution  is

undisputedly very much limited. This Court does not exercise its  overriding

powers under Article 136  to  reweigh  the  evidence.  The  court  does  not

disturb the concurrent finding of facts reached  upon  proper  appreciation.

Even if two views are reasonably possible,  one  indicating  conviction  and

other acquittal, this Court will not interfere with the order  of  acquittal

(See:  State  of  U.P.  v.  Jashoda  Nandan  Gupta;  State  of  A.P.  v.  P.

Anjaneyulu.) But this Court will not hesitate to interfere if the  acquittal

is perverse in the sense that no reasonable person would have come  to  that

conclusion, or if the acquittal is manifestly illegal or grossly unjust.”

36.   Present is a case where the High Court exercised its  appellate  power

under Section 386 Cr.P.C. In exercise of Appellate power under  Section  386

Cr.P.C. the High Court has full power to reverse an order of  acquittal  and

if the accused are found guilty they can be sentenced according to law.

37.    Present  is  a  case   where   reasoning   of  the  Trial   Court  in

discarding  the  evidence of  injured   witness   and  other   eye-witnesses

have  been found perverse. The High Court, thus,  in  our  opinion  did  not

commit any error in reversing the  order  of  acquittal  and  convicted  the

accused. From the eye-witnesses  account,  as  noticed  above  and  for  the

reasons given by the  High Court in its judgment,

we are of the view that High Court is correct in setting aside the order  of

acquittal and convicting the accused.

38.   There is no merit in these appeals. Both the appeals are dismissed.

…………………J.

( A. K. SIKRI )

…………………J.

( ASHOK BHUSHAN )

New Delhi,

April 13, 2017.

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