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Wednesday, April 23, 2014

Sections 147, 148, 324, 307, 302 read with Section 149 of the IPC - powers of appellant court --- not to disturb acquittal due to possibility of other view - Trial court acquitted the accused - High court reversed the judgement and convicted - Apex court held that Finally, we must note that the High Court has not stated why it felt that the trial court’s view was perverse. It has not stated what were the compelling reasons, which persuaded it to disturb the order of acquittal. As noted by this Court in several decisions if two reasonable views are possible, the appellate court shall not disturb the order of acquittal because it feels that some other view is possible. The reasonable view which reinforces the presumption of innocence of the accused must be preferred. In our opinion the trial court’s view was not perverse. It was taken after thorough marshalling of evidence. It was a reasonably possible view. The High Court erred in disturbing it. In the circumstances, the appeals are allowed. = Nallabothu Ramulu @ Seetharamaiah & Ors. … Appellants Vs. State of Andhra Pradesh … Respondents= 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41440

 Sections 147, 148, 324, 307, 302 read with Section 149 of the IPC  - powers of appellant court --- not to disturb acquittal  due to possibility of other view - Trial court acquitted the accused - High court reversed the judgement and convicted - Apex court held that Finally, we must note that the High Court has not stated why  it  felt that the trial court’s view was perverse.  It has not stated what  were  the compelling reasons, which persuaded it to disturb the  order  of  acquittal. As noted by this Court in several decisions  if  two  reasonable  views  are possible, the appellate court shall  not  disturb  the  order  of  acquittal because it feels that some other view  is  possible.   The  reasonable  view which reinforces the  presumption  of  innocence  of  the  accused  must  be preferred.  In our opinion the trial court’s view was not perverse.  It  was taken after thorough marshalling of evidence.  It was a reasonably  possible view.  The High Court erred in disturbing it.  In the circumstances, the appeals are allowed. =

The appellants were charged and tried by the IInd Additional  Sessions
Judge, Guntur in Sessions Case No.967 of 1994 inter alia for offences  under
Sections 147, 148, 324, 307, 302 read with Section 149 of the IPC.   Learned
Sessions Judge by judgment dated 11/2/2000 acquitted all the  accused.   The
State of Andhra Pradesh carried an appeal from the said order  to  the  High
Court  of  Andhra  Pradesh.   By  the  impugned  judgment  and  order  dated
24/07/2003, the High Court set aside the order of  acquittal  and  convicted
the appellants in Criminal Appeal No.1424 of 2003  viz.  A1-Nallabothu,  A3-
Rayidi Brahmaiah, A4-Rayidi Purnaiah, A11-Nallabothu  Sreenivasa  Rao,  A14-
Rayidi Kotiah, A15-Rayidi Veera Mallaiah,  A16-Mupalla  Ramaiah,  A21-Rayidi
Lingiah,  A23-Rayidi  Sreenivasarao,   A24-Duggineni   Peraiah,   A25-Mannem
Hanumantha Rao,  A27-Rayidi  Ramarao  and  A29-Rayidi  Venkateswarlu,  under
Section 302 of the Indian Penal Code (“the IPC”) and sentenced each  one  of
them to undergo rigorous imprisonment for life.  In addition,  Accused  No.3
and Accused No.4 were convicted under Section 324 of the IPC  and  sentenced
to undergo rigorous imprisonment for three years each.   Accused  No.25  was
convicted under Section 324 of the IPC and also under Section 324 read  with
Section 149 of the IPC and sentenced to undergo  rigorous  imprisonment  for
one year on each count.  The appellants in Criminal  Appeal  No.15  of  2004
viz.  A38-Chalamala  Veeraiah  and  A39-Chalamala  Subbarao  were,  however,
convicted under Section 324 read with Section 149 of the IPC  and  sentenced
to suffer rigorous imprisonment for one year each.  The appellants  in  both
the appeals were also convicted under Section 148 of the IPC  and  sentenced
to  undergo  rigorous  imprisonment  for  one  year  each.  The  substantive
sentences were ordered  to  run  concurrently.   Being  aggrieved  by  their
conviction and sentence, the appellants have approached  this  Court.    For
the sake of convenience, we shall refer to the accused and  the  prosecution
witnesses as per the numbers assigned to them by the trial court.=
        In Chandrappa &  Ors.
 v. State of Karnataka[1], this Court laid down the principles as under:


        “42.  From  the  above  decisions,  in  our  considered  view,  the
      following general principles regarding powers of the  appellate  court
      while dealing with an appeal against an order of acquittal emerge:


        (1) An appellate court has full power to review,  reappreciate  and
      reconsider the evidence upon which the order of acquittal is founded.


        (2) The Code  of  Criminal  Procedure,  1973  puts  no  limitation,
      restriction or condition on exercise of such power  and  an  appellate
      court on the evidence before it may reach its own conclusion, both  on
      questions of fact and of law.


        (3) Various  expressions,  such  as,  ‘substantial  and  compelling
      reasons’, ‘good and sufficient grounds’, ‘very strong  circumstances’,
      ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended  to
      curtail extensive powers of an appellate court in  an  appeal  against
      acquittal. Such phraseologies are more in the nature of ‘flourishes of
      language’ to  emphasise  the  reluctance  of  an  appellate  court  to
      interfere with acquittal than to curtail the power  of  the  court  to
      review the evidence and to come to its own conclusion.


        (4) An appellate court, however, must bear in mind that in case  of
      acquittal, there is double  presumption  in  favour  of  the  accused.
      Firstly, the presumption of innocence is available to  him  under  the
      fundamental principle of  criminal  jurisprudence  that  every  person
      shall be presumed to be innocent unless  he  is  proved  guilty  by  a
      competent court of law.  Secondly,  the  accused  having  secured  his
      acquittal, the presumption of his  innocence  is  further  reinforced,
      reaffirmed and strengthened by the trial court.


        (5) If two reasonable conclusions are possible on the basis of  the
      evidence on record, the appellate court should not disturb the finding
      of acquittal recorded by the trial court.”=


 Finally, we must note that the High Court has not stated why  it  felt
that the trial court’s view was perverse.  It has not stated what  were  the
compelling reasons, which persuaded it to disturb the  order  of  acquittal.
As noted by this Court in several decisions  if  two  reasonable  views  are
possible, the appellate court shall  not  disturb  the  order  of  acquittal
because it feels that some other view  is  possible.   The  reasonable  view
which reinforces the  presumption  of  innocence  of  the  accused  must  be
preferred.  In our opinion the trial court’s view was not perverse.  It  was
taken after thorough marshalling of evidence.  It was a reasonably  possible
view.  The High Court erred in disturbing it.





21.   In the circumstances, the appeals are allowed.  The impugned  judgment
and order is set aside.  The appellants in both the  appeals  are  acquitted
of all the charges.  They are on bail.  Their bail bonds stand discharged.
 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41440
SUDHANSU JYOTI MUKHOPADHAYA, RANJANA PRAKASH DESAI
                                                   NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1424 OF 2003

Nallabothu Ramulu @
Seetharamaiah & Ors.                    …                Appellants

                 Vs.

State of Andhra Pradesh                 …                Respondents

                                    WITH
                        CRIMINAL APPEAL NO.15 OF 2004

Chalamala Veeraiah & Anr.               …                 Appellants

            Vs.

State of Andhra Pradesh                 …                Respondents

                               J U D G M E N T


(SMT.) RANJANA PRAKASH DESAI, J.


1.    Both these appeals are  directed  against  judgment  and  order  dated
24/07/2003 passed by the High Court of Andhra  Pradesh  in  Criminal  Appeal
No.921 of 2000 and, hence,  they  are  being  disposed  of  by  this  common
judgment.

2.    The appellants were charged and tried by the IInd Additional  Sessions
Judge, Guntur in Sessions Case No.967 of 1994 inter alia for offences  under
Sections 147, 148, 324, 307, 302 read with Section 149 of the IPC.   Learned
Sessions Judge by judgment dated 11/2/2000 acquitted all the  accused.   The
State of Andhra Pradesh carried an appeal from the said order  to  the  High
Court  of  Andhra  Pradesh.   By  the  impugned  judgment  and  order  dated
24/07/2003, the High Court set aside the order of  acquittal  and  convicted
the appellants in Criminal Appeal No.1424 of 2003  viz.  A1-Nallabothu,  A3-
Rayidi Brahmaiah, A4-Rayidi Purnaiah, A11-Nallabothu  Sreenivasa  Rao,  A14-
Rayidi Kotiah, A15-Rayidi Veera Mallaiah,  A16-Mupalla  Ramaiah,  A21-Rayidi
Lingiah,  A23-Rayidi  Sreenivasarao,   A24-Duggineni   Peraiah,   A25-Mannem
Hanumantha Rao,  A27-Rayidi  Ramarao  and  A29-Rayidi  Venkateswarlu,  under
Section 302 of the Indian Penal Code (“the IPC”) and sentenced each  one  of
them to undergo rigorous imprisonment for life.  In addition,  Accused  No.3
and Accused No.4 were convicted under Section 324 of the IPC  and  sentenced
to undergo rigorous imprisonment for three years each.   Accused  No.25  was
convicted under Section 324 of the IPC and also under Section 324 read  with
Section 149 of the IPC and sentenced to undergo  rigorous  imprisonment  for
one year on each count.  The appellants in Criminal  Appeal  No.15  of  2004
viz.  A38-Chalamala  Veeraiah  and  A39-Chalamala  Subbarao  were,  however,
convicted under Section 324 read with Section 149 of the IPC  and  sentenced
to suffer rigorous imprisonment for one year each.  The appellants  in  both
the appeals were also convicted under Section 148 of the IPC  and  sentenced
to  undergo  rigorous  imprisonment  for  one  year  each.  The  substantive
sentences were ordered  to  run  concurrently.   Being  aggrieved  by  their
conviction and sentence, the appellants have approached  this  Court.    For
the sake of convenience, we shall refer to the accused and  the  prosecution
witnesses as per the numbers assigned to them by the trial court.


3.    Tondepi village is a  faction-ridden  village  within  the  limits  of
Muppala Police Station.  There were  two  groups  in  the  village,  against
whom, cases and  counter-cases  were  pending.   There  were  land  disputes
between A28-Rayidi Anjaiah and his father Rayidi Venkatappaiah.   One  group
was supporting A28-Rayidi Anjaiah and the other  group  was  supporting  his
father.

4.    On 16/3/1993, at about 1.30 p.m., some of the accused  abducted  PW-19
V. Seshagiri Rao and tried  to  kill  him.    However,  due  to  the  timely
intervention of the police, he was saved  and  admitted  in  the  Government
Hospital, Settenapalli.  In this connection, the police  registered  a  case
being Crime No.5 of 1993 for offences punishable under  Sections  147,  148,
323, 324, 364 and 307 read with Section 149 of the IPC against some  of  the
accused in this case.  As they were unsuccessful in their  attempt  to  kill
PW-19 V. Seshagiri Rao, they armed with iron rods, axes, spears, sticks  and
bombs waylaid in Dammalapadu Donka and formed themselves  into  an  unlawful
assembly  with  a  common  object  of  killing  the  persons  belonging   to
Nallabothu Venkaiah group.  After admitting PW-19 V. Seshagiri Rao,  in  the
Hospital at Sattenapally, Challa Singaiah and Rachankonda Chanchiah and  PW-
1 to PW-10 and some others were returning to their village in a  tractor  in
the  night  intervening  16/3/1993  and  17/3/1993.   The  accused  attacked
Singaiah and Chanchiah and PWs-1 to 16 when they reached Dammalapadu  Donka.
 Bombs were hurled.  Singaiah succumbed to the injuries at the  spot.   PW-1
to PW-10 and  Chanchiah,  who  sustained  injuries,  were  admitted  in  the
Government Hospital, Sattenapally.  Chanchiah succumbed to the  injuries  on
17/3/1993 while he was undergoing treatment.  The hospital authorities  sent
an intimation to the Additional Munsiff Magistrate, Sattenapally.   Pursuant
to the said information, the learned Magistrate went  to  the  hospital  and
recorded the statement of PW-1 R. Venkata Rao,  on  the  same  day,  in  the
presence of the Duty Medical Officer.  On receipt of the statement of  PW-1,
the Sub Inspector of Police, Sattenapally, registered  a  case  being  Crime
No.43 of 1993 for offences punishable under Sections 147, 148, 324, 307  and
302 read with Section 149 of the IPC and Sections 3 and 5 of  the  Explosive
Substances Act and transferred the case to Muppala  Police  Station,  within
whose jurisdiction the incident occurred.  On receipt of  the  copy  of  the
FIR, Muppala Police re-registered it as Crime No.6 of 1993 of  their  police
station.    PW-29,   the   Circle   Inspector,   Muppala,   conducted    the
investigation.  After completion of investigation, the accused  came  to  be
charged as aforesaid.   At the trial, the prosecution examined  as  many  as
31 witnesses.  The accused denied the prosecution case.  As earlier  stated,
the trial court rejected the prosecution case,  held  that  the  prosecution
has not proved its case beyond reasonable doubt and acquitted  the  accused.
The High Court reversed the order of acquittal and convicted the accused  as
aforesaid.  Hence, these appeals.

5.     We have heard learned senior counsel appearing  for  the  appellants.
Counsel submitted that the High Court  erred  in  disturbing  the  acquittal
order passed by the trial court.  Counsel submitted that the view  taken  by
the trial court was a reasonably possible  view.   It  was  not  a  perverse
view.  The High Court ought not to have set aside the acquittal  order  just
because it felt that some other view was also possible.   Counsel  submitted
that the High Court has not indicated in the impugned judgment  the  reasons
why it felt that the  trial  court’s  view  was  not  sustainable.   Counsel
submitted that the trial court has meticulously considered the  evidence  of
every witness, marshaled the facts correctly and held that  the  prosecution
has not  proved  its  case  beyond  reasonable  doubt.   It  is,  therefore,
necessary to set aside the impugned order  and  restore  the  trial  court’s
order.

6.    Mr. A.T.M. Rangaramanujam, learned senior counsel  for  the  State  of
Andhra Pradesh, on the other hand,  supported  the  impugned  judgment.   He
submitted that the trial court gave undue  importance  to  trivial  matters.
It wrongly disbelieved the evidence of injured eye-witnesses on  account  of
minor discrepancies.  The trial court’s judgment rested on  conjectures  and
surmises.  It was  a  perverse  judgment  and,  therefore,  the  High  Court
rightly set it aside.  No interference is,  therefore,  necessary  with  the
impugned order.  Counsel urged that the appeals be dismissed.

7.    The High Court reversed the order of acquittal  passed  by  the  trial
court.  The question is whether the High Court justified in doing that.   To
answer this question, it would be necessary to refresh our memory  and  have
a look at the principles laid down by this Court for guidance of  the  Court
dealing with an appeal against an order of acquittal.  In Chandrappa &  Ors.
 v. State of Karnataka[1], this Court laid down the principles as under:


        “42.  From  the  above  decisions,  in  our  considered  view,  the
      following general principles regarding powers of the  appellate  court
      while dealing with an appeal against an order of acquittal emerge:


        (1) An appellate court has full power to review,  reappreciate  and
      reconsider the evidence upon which the order of acquittal is founded.


        (2) The Code  of  Criminal  Procedure,  1973  puts  no  limitation,
      restriction or condition on exercise of such power  and  an  appellate
      court on the evidence before it may reach its own conclusion, both  on
      questions of fact and of law.


        (3) Various  expressions,  such  as,  ‘substantial  and  compelling
      reasons’, ‘good and sufficient grounds’, ‘very strong  circumstances’,
      ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended  to
      curtail extensive powers of an appellate court in  an  appeal  against
      acquittal. Such phraseologies are more in the nature of ‘flourishes of
      language’ to  emphasise  the  reluctance  of  an  appellate  court  to
      interfere with acquittal than to curtail the power  of  the  court  to
      review the evidence and to come to its own conclusion.


        (4) An appellate court, however, must bear in mind that in case  of
      acquittal, there is double  presumption  in  favour  of  the  accused.
      Firstly, the presumption of innocence is available to  him  under  the
      fundamental principle of  criminal  jurisprudence  that  every  person
      shall be presumed to be innocent unless  he  is  proved  guilty  by  a
      competent court of law.  Secondly,  the  accused  having  secured  his
      acquittal, the presumption of his  innocence  is  further  reinforced,
      reaffirmed and strengthened by the trial court.


        (5) If two reasonable conclusions are possible on the basis of  the
      evidence on record, the appellate court should not disturb the finding
      of acquittal recorded by the trial court.”

8.    In Dwarka Dass & Ors.  v.  State of Haryana[2],  this  Court  observed
as under:

      “2.   While there cannot be any denial of the factum  that  the  power
      and authority to appraise the evidence in an  appeal,  either  against
      acquittal or conviction stands out to be very comprehensive and  wide,
      but if two views are reasonably possible, on the  state  of  evidence:
      one supporting the acquittal and the other indicating conviction, then
      and  in  that  event,  the  High  Court  would  not  be  justified  in
      interfering with an order of acquittal, merely because it  feels  that
      it, sitting as a trial court, would have taken the other  view.  While
      reappreciating the evidence, the rule of prudence  requires  that  the
      High Court should give proper weight and consideration to the views of
      the trial Judge. But  if  the  judgment  of  the  Sessions  Judge  was
      absolutely  perverse,  legally  erroneous  and  based   on   a   wrong
      appreciation of the evidence, then it would be just and proper for the
      High Court to reverse the  judgment  of  acquittal,  recorded  by  the
      Sessions Judge, as otherwise, there  would  be  gross  miscarriage  of
      justice.”


9.    In Bihari Nath Goswami  v. Shiv Kumar  Singh  &  Ors.[3],  this  Court
observed as under:

      “8.   There is  no  embargo  on  the  appellate  court  reviewing  the
      evidence upon which an order of acquittal  is  based.  Generally,  the
      order  of  acquittal  shall  not  be  interfered  with   because   the
      presumption of innocence of the accused  is  further  strengthened  by
      acquittal.  The  golden  thread  which  runs  through   the   web   of
      administration of justice in criminal cases is that if two  views  are
      possible on the evidence adduced in the  case,  one  pointing  to  the
      guilt of the accused and the other to his innocence, the view which is
      favourable  to  the  accused  should   be   adopted.   The   paramount
      consideration of the court is to ensure that miscarriage of justice is
      prevented. A miscarriage of justice which may arise from acquittal  of
      the guilty is no less than from the conviction of an innocent.”

      Keeping the above principles in mind, we shall  approach  the  present
case.

10.   We shall examine the trial court’s view on each salient aspect of  the
case and see whether it was perverse, warranting High Court’s  interference.
 It must be borne in mind that the incident took place at dead of night  and
in an area which was away from town.  Admittedly, there  were  two  factions
in the village and the relations between the  two  factions  were  strained.
In an earlier incident, PW-19 was attacked by the  opposite  group.   Hence,
the possibility of witnesses trying to falsely implicate  persons  belonging
to the rival group cannot be ruled out.  Also important  is  the  fact  that
according to the  prosecution,  50  persons  were  involved  in  the  brutal
attack.  In a case of this nature, availability of light for  identification
of the accused would assume great importance.  The trial court  meticulously
scanned the evidence and opined that there was no sufficient  light  at  the
scene of offence to enable the witnesses to  identify  the  accused.   On  a
reading of evidence of witnesses and noticing some discrepancies, the  trial
court arrived at a finding that the story that the assault was witnessed  by
the witnesses in torch light or tractor  light  is  not  acceptable.   While
coming to this conclusion, the trial court further noted that  in  the  FIR,
in the observation report and in the inquest report, there is no mention  of
availability of light.

11.   The  High  Court  overturned  the  findings  of  the  trial  court  on
availability of light on the ground inter alia that witnesses were  deposing
5½ years after the incident and there are bound to be some discrepancies  in
their evidence.  The High Court also observed that at  night,  vehicles  are
not driven without lights.   The  High  Court  noted  that  the  prosecution
witnesses have stated that they knew the accused as  they  belonged  to  the
opposite group and, therefore, it was possible  for  them  to  identify  the
accused.  The High Court also noted that PW-1 was injured so  he  might  not
have mentioned  about  availability  of  light  in  Ex-P/1.   Moreover,  the
witnesses have not identified all the accused.  This  gives  credibility  to
their evidence.  The High Court also noted that four torches were  found  at
the scene of offence and, hence, there was sufficient light at the scene  of
offence.  We feel that the High Court was not right  in  setting  aside  the
trial court’s reasonable view on  availability  of  light.   The  fact  that
neither in the FIR nor in the observation report nor in the  inquest  report
there is mention of availability of light, is important.  By itself each  of
these circumstances may not be significant.  But, taken  with  other  facts,
they assume importance.

12.   The  trial  court  rightly  observed  that  assuming  the  prosecution
witnesses had torches in their hands, they would  not  switch  them  on  for
fear of being spotted and subjected to attack.  Besides,  according  to  the
prosecution, there were 50  accused.  Some  of  them  hurled  bombs  at  the
witnesses.  Therefore, the attack must  have  resulted  in  smoke  and  dust
rising in the air.  In such a situation, it would not be  possible  for  the
prosecution witnesses to identify the assailants out  of  50  persons,  who,
according to the prosecution, launched the attack.  In any  case,  it  would
not be possible for the witnesses to note what  role  each  accused  played.
The overt  acts  attributed  by  the  witnesses  to  the  accused  must  be,
therefore, taken with a pinch of salt.  All the accused were  not  known  to
the witnesses, because some witnesses stated that  they  would  be  able  to
identify them if they are shown to them.  But even assuming  they  knew  the
accused and there was some light at  the  scene  of  offence,  it  does  not
appear that it was sufficient  to  enable  the  witnesses  to  identify  the
accused  and  note  overt  act  of  each  of  them.   Possibility  of  wrong
identification cannot be ruled out.  The view taken by the  trial  court  on
this aspect is reasonably possible  view.   The  High  Court  was  wrong  in
disturbing it in an appeal against acquittal.

13.   According to the prosecution, after admitting  PW-19  at  Sattenapally
Government Hospital, PW-1  to  PW-16,  the  two  deceased  and  others  were
returning to Tondepi village.  At  that  time,  at  Dammalapadu  Donka,  the
incident occurred.  PW-1 is an important witness because he was  injured  in
the incident.  His dying declaration was recorded, which is at  Ex-P/1.   On
the basis of that dying declaration, Ex-P/26,  the  FIR  was  registered  at
P.S.  Sattenapally.   PW-1  stated  that  the  police  came  to   the   spot
immediately and within 15 minutes of their arrival,  they  were  shifted  to
Sattenapally Government Hospital.  He stated that PW-28 S.I.,  P.S.  Muppala
came there.  He also stated that there was a police camp at  Gram  Panchayat
Office of Tondepi village.  PW-28 S.I., P.S. Muppala  confirmed  that  there
was police camp at the Gram Panchayat Office.  He was  posted  on  bandobast
duty on account of the  incident  in  which  PW-19  was  injured.    He  had
recorded the statements of witnesses in the earlier case from 5.00  p.m.  to
8.00 p.m. on 16/3/1993.  Evidence of witnesses shows that they had  informed
the police about the incident in  question.   PW-2  an  injured  eye-witness
stated that he informed the police about the  incident,  but  his  statement
was not recorded.  PW-3 the Head Constable, who  had  accompanied  PW-19  to
the hospital on 16/3/1993 stated that PW-28 S.I.,  P.S.  Muppala  and  other
police staff came to the place of occurrence and injured were taken  to  the
village and then to the hospital within  an  hour.   He  stated  that  PW-28
S.I., P.S. Muppala did not record his statement.  PW-3 was attached to  P.S.
Muppala.  PW-28 S.I., P.S. Muppala should have recorded  his  statement  and
registered a case but he did  not  do  so.   PW-8  stated  that  S.I.,  P.S.
Muppala came to the spot but he did not record his statement.  PW-9 and  PW-
10 made similar statements.  PW-12 stated that he escaped from the scene  of
offence, went to the village and came back to the scene of offence with  the
villagers.  He stated that he informed the police about the  incident.   PW-
13 stated that he escaped from the scene of offence and  returned  with  the
police.  He stated that when he revealed the incident to  the  police,  they
recorded his statement.   PW-14  stated  that  he  had  informed  about  the
incident to the police but he does not know whether the police  had  reduced
his information into writing.   PW-15  stated  that  he  had  witnessed  the
occurrence for about three minutes.  He had informed the  police  about  the
incident but the police did not record his statement.

14.   PW-28 S.I., P.S. Muppala admitted that he shifted the injured  to  the
hospital and the injured informed him that the opposite group  had  attacked
them.  He stated that when he went to the village to get a tractor to  shift
the injured, he had informed his superiors about the incident on phone.   He
further stated that PW-29 Circle Inspector (IO) came to the village at  3.00
a.m. and he assisted him in the investigation at the spot.   Thereafter,  he
proceeded to the Police Station, Muppala and there, he received copy of  the
FIR from S.H.O., Sattenapally.  The evidence of  all  these  witnesses  read
with evidence of PW-28 S.I.,  P.S.  Muppala  show  that  the  witnesses  had
informed PW-28 about the incident and the fact that the opposite  party  had
attacked them.  While  statements  of  some  witnesses  were  not  recorded,
statements of some witnesses were recorded, but they were not produced.  PW-
28 S.I., P.S. Muppala ought to have registered  the  FIR  on  the  basis  of
statements of injured eye-witnesses.  PW-3  Head  Constable  was,  in  fact,
attached to the P.S.,  Muppala  and  was  working  under  him.   It  is  not
understood why his FIR  was  not  recorded.   The  omission  to  record  the
statement of any of the injured witnesses as FIR or to record statements  of
witnesses under Section 161 of the Cr.P.C. by PW-28 casts a shadow of  doubt
on the prosecution case.  There was no need  for  the  police  to  wait  for
recording of the statement of PW-1, treat  that  as  dying  declaration  and
then register the FIR on that basis.  While, according to  the  prosecution,
the incident took place at 1.00 a.m. on  17/3/1993,  PW-1’s  statement  [Ex-
P/1] was recorded at 3.15 a.m.  In the facts of this case,  not  registering
FIR on the basis of statement of injured witnesses at the spot  of  incident
and the delay in registering FIR give rise to a suspicion that  the  injured
witnesses were unable to name the accused on account of  darkness  and  that
the FIR was doctored in the form of dying  declaration  of  PW-1  which  was
subsequently converted into Ex-P/26.  This  reasoning  of  the  trial  court
appears to be correct and ought not to  have  been  disturbed  by  the  High
Court.

15.   Pertinently, the High Court also took note  of  the  fact  that  PW-28
S.I., P.S. Muppala did not record the  statements  of  witnesses.   But  the
High Court brushed aside this serious lacuna in a perfunctory  manner.   The
High Court noted that even though injured persons were present, PW-28  S.I.,
P.S. Muppala did not record their statements, he did not obtain any  written
complaint,  he  did  not  register  any  complaint  and  did  not  send  any
requisition for medical treatment.  The High Court further noted that  PW-28
S.I., P.S. Muppala did not make any enquiry with PW-2  and  PW-4  about  the
incident.  The High Court observed that PW-2 and PW-4 would have  given  the
earliest version  of  the  incident.   But,  surprisingly,  the  High  Court
explained away  PW-28  S.I.,  P.S.  Muppala’s  inaction  by  observing  that
probably, he might not have brought any papers  to  the  scene  of  offence.
The High Court observed that since the witnesses were injured,  PW-28  S.I.,
P.S. Muppala’s first duty was to shift  them  to  the  hospital.   The  High
Court then observed that PW-28 S.I., P.S. Muppala might be aware that  being
only Sub-Inspector, he could not have conducted investigation  of  a  murder
case and that he was perhaps expecting the Inspector of Police  to  take  up
investigation as he had informed him  on  phone.   The  High  Court  further
observed  that  at  best  not  recording  statements  of  witnesses  is   an
irregularity and cannot affect the veracity of prosecution case.  We are  of
the  opinion  that  the  High  Court  treated  this  gross  lacuna  in   the
prosecution case lightly.  In this case, where  relations  between  the  two
sides were strained, there was an earlier incident of attack and there  were
about 50 accused involved in the  incident,  the  earliest  version  of  the
prosecution case was most crucial but it was not noted down.

16.   The evidence of PW-29, the Circle Inspector,  P.S.  Muppala,  who  was
the Investigating Officer, would also throw some light on this  aspect.   It
is clear from his evidence that he received the information with  regard  to
the incident much prior to Ex-P/1.  He was  informed  by  PW-28  S.I.,  P.S.
Muppala about the several statements made by the witnesses.  He stated  that
he instructed PW-28 S.I., P.S. Muppala to send the  injured  witnesses  viz.
PW-11, PW-12 and PW-13 to Government  Hospital,  Sattenapally  and  then  he
examined PW-14, PW-15 and PW-16.  He admitted that he did not note down  the
information received about the occurrence anywhere.  He further stated  that
on the night intervening 16/3/1993 and 17/3/1993, he did not  visit  Tondepi
village at all and he did not ascertain from the police  picket  at  Tondepi
village as to whether any report was received by the police picket  on  that
night regarding the incident.  He stated that he did not  make  any  further
enquiry.  He stated that when he reached P.S. Muppala between 7.00 p.m.  and
8.00 p.m., the Sentry talked to him and told him  about  the  incident.   He
admitted that he did not give any instructions to  the  Sentry  to  register
the case on the basis of that information.  He admitted that after  visiting
the scene of offence where PW-28 S.I., P.S. Muppala  and  other  staff  were
present, he did not register the case  nor  did  he  ask  PW-28  S.I.,  P.S.
Muppala to register the case.  He further admitted  that  PW-28  S.I.,  P.S.
Muppala had informed him that the injured persons had told him  that  people
from  Rayudu group waylaid and attacked them with  country  made  bombs  and
they could identify them.  But, he did not register any FIR nor did  he  ask
PW-28 S.I., P.S. Muppala to register the FIR.  He tried to explain  this  by
stating that since the dying declaration was being recorded, he directed PW-
28 S.I., P.S. Muppala to  register  the  FIR  on  the  basis  of  the  dying
declaration.  He admitted that by the time he conducted the inquest  of  the
dead body of Singaiah at the place of offence, he had examined and  recorded
the statements of PW-1 to PW-11  and  after  the  inquest  he  recorded  the
statements of PW-12 to PW-16.  He admitted that the FIR was  not  registered
even at the time of examination of PW-1 to PW-6  by  him  in  the  hospital.
The evidence of this witness also shows that  though  the  earliest  version
was available, it was suppressed.  This makes the investigation of the  case
suspect.

17.    PW-21  is  the  doctor   attached   to   the   Government   Hospital,
Sattenapally.  He stated that he sent an intimation to the  Police  Station,
Sattenapally  in  respect  of  admission  of  PW-1,  PW-3  and  PW-4.    The
intimation is at Ex-P/20.  It bears the date 16/3/1993 but  does  not  state
the time.  It also bears the signature of PW-21.  PW-21 further stated  that
on 17/3/1993 at 3.05  a.m.,  he  sent  requisition  to  the  Magistrate  for
recording the dying declaration of PW-1.  It is at Ex-P/18.   Admittedly  on
this requisition, the date was originally put as 16/3/1993.  But, later  on,
‘6’ is overwritten as ‘7’.  Thus, Ex-P/20 and  Ex-P/18  create  doubt  about
the time and date of the incident. If PW-1, PW-3 and PW-4 were  admitted  in
the Government Hospital on 16/3/1993  then,  the  incident  could  not  have
happened at 1.00 a.m. on 17/3/1993. The explanation given by PW-21  that  he
changed the date from 16/3/1993 to 17/3/1993 as  it  crossed  midnight  does
not stand to reason.  It is pertinent to note that PW-21 did  not  send  any
intimation to the police in  respect  of  other  injured  witnesses.   PW-28
S.I., P.S. Muppala and PW-29 the Circle Inspector,  P.S.  Muppala  also  did
not send any requisition to the hospital with respect to the  other  injured
witnesses.  PW-27 S.I., P.S. Sattenapally stated that  he  received  Ex-P/20
i.e. intimation in respect of admission of PW-1, PW-3 and PW-4 bearing  date
‘16/3/1993’ and the signature  of  PW-21  at  10.30  p.m.   This  means  the
injured were in the hospital by the time  of  preparation  of  Ex-P/20  i.e.
before 12.00 midnight.  The trial  court’s  view  that  this  creates  doubt
about the prosecution’s claim that the incident happened  at  1.00  a.m.  on
17/3/1993 cannot be called perverse.  Moreover, if PW-1, PW-3 and PW-4  were
admitted in the hospital on 16/3/1993 much prior to midnight and  if  PW-1’s
dying declaration had to be recorded, requisition should have been  sent  to
the Magistrate by PW-21 immediately and  not  at  3.05  a.m.  on  17/3/1993.
Consequently, Ex-P/1 i.e. the dying declaration of  PW-1  recorded  at  3.15
a.m. on 17/3/1993 gives scope to criticism that after prolonged  discussion,
the  investigating  officer  through  PW-21  sent  the  requisition  to  the
Magistrate and the dying declaration was recorded after  much  deliberation.
Pertinently, PW-8 stated that some of their party leaders had  visited  them
in Sattenapalli hospital.  Besides, PW-19, who was  attacked  prior  to  the
incident in question, was already there in the hospital.   Therefore,  there
is basis for the criticism that there was deliberation before recording  the
dying declaration.  The High Court has referred to the evidence of  PW-4  to
the effect that no leaders from the party of the prosecution  witnesses  had
visited the hospital.  The High Court held that therefore, there can  be  no
tutoring.  It is difficult to accept this submission given  the  history  of
this incident.  PW-19 was attacked by the other group prior to the  incident
in question.  His presence in the hospital at the time of recording  of  PW-
1’s dying declaration and other statements itself is  sufficient  to  create
doubt about the credibility of the prosecution case.

18.   It is also pertinent to note that  while  PW-13,  the  Head  Constable
stated that the injured were first taken to the  village  and  then  to  the
hospital, PW-28 S.I., P.S. Muppala stated that  the  injured  were  directly
taken to the hospital.  If, as stated by PW-13 the  injured  witnesses  were
first taken to the village and then to the hospital,  then  it  is  possible
that after consultation with villagers they implicated  the  accused.   This
makes a dent in the prosecution story.

19.   There are certain other aspects which add up to the weaknesses of  the
prosecution case.  Ex-P/1 states that  Challa  Narasimha  Rao  went  to  the
hospital along with PW-1, but his name was not  in  the  charge-sheet  as  a
witness.  Ex-P/1 refers to Somapalli Kotaiah as an assailant  but  his  name
does not figure in the  charge-sheet  as  an  accused.   Ex-P/1,  which  was
recorded at 3.15 a.m. on 17/3/1993, states that two persons  were  murdered.
As per intimation  [Ex-P/19],  deceased-Chanchaiah  died  at  4.50  a.m.  on
17/3/1993.  It is not understood  how  it  is  stated  in  Ex-P/1  that  two
persons were dead.  PW-1 stated in his cross-examination  that  he  did  not
get down from the tractor at any stage. But in his  dying  declaration  [Ex-
P/1], he stated that he fell down in the bushes.  Moreover, in  the  inquest
report prepared by PW-29, the name of one Challa Koteshwar Rao is  shown  as
the person who first saw deceased-Singhaiah dead.   In  column  4,  name  of
Challa Koteshwar Rao is mentioned as the person who had last seen  deceased-
Singhaiah alive and that he was traveling in the tractor  along  with  other
witnesses.  However, PW-17 Cholla Mangammao, the wife of deceased  Singhaiah
stated that on that day, Challa Koteshwar Rao was in the  village.   Seizure
of weapons has been disbelieved by the trial  court  as  well  as  the  High
Court. It is also important to note that  PW-1  stated  in  Ex-P/1  that  30
people attacked them.  But names of only A1 to A12 and A15 figured  therein.
 Names of all the accused were not stated by  the  witnesses.   They  stated
that  they  would  be  able  to   identify   the   accused.    However,   no
identification parade was held. Therefore, it cannot be said with  certainty
which accused attacked whom.  Moreover, there  are  so  many  omissions  and
contradictions in the evidence of prosecution  witnesses,  that  the  entire
fabric of prosecution case appears to be ridden with  gaping  holes.   These
discrepancies have been meticulously noted by the  trial  court.   The  High
Court, however, holds that the witnesses were examined 5½  years  after  the
incident and, therefore, such discrepancies are natural.  It  is  true  that
due to passage of time, witnesses do deviate from  their  police  statements
as their memory fades to some extent.  Reasonable allowance can be made  for
such discrepancies.  But when such  discrepancies  make  the  foundation  of
prosecution case shaky, Court has to take  strict  note  thereof.   In  this
case, the trial court has meticulously located the discrepancies and  opined
that the witnesses have discredited themselves.  The High  Court  ought  not
to have overlooked this reasoning of the trial court.

20.   Finally, we must note that the High Court has not stated why  it  felt
that the trial court’s view was perverse.  It has not stated what  were  the
compelling reasons, which persuaded it to disturb the  order  of  acquittal.
As noted by this Court in several decisions  if  two  reasonable  views  are
possible, the appellate court shall  not  disturb  the  order  of  acquittal
because it feels that some other view  is  possible.   The  reasonable  view
which reinforces the  presumption  of  innocence  of  the  accused  must  be
preferred.  In our opinion the trial court’s view was not perverse.  It  was
taken after thorough marshalling of evidence.  It was a reasonably  possible
view.  The High Court erred in disturbing it.





21.   In the circumstances, the appeals are allowed.  The impugned  judgment
and order is set aside.  The appellants in both the  appeals  are  acquitted
of all the charges.  They are on bail.  Their bail bonds stand discharged.



                                                      …..……...…………………………..J.
                                               (Sudhansu Jyoti Mukhopadhaya)

                               .…………………………..J.
                           (Ranjana Prakash Desai)

New Delhi;
April 22, 2014.

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[1]    (2007) 4 SCC 415
[2]    (2003) 1 SCC 204
[3]    (2004) 9 SCC 186

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