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 12x4 cm., bone deep on left parity occipital region. Deep
dissection shows linear fracture of left parital bone.
Cut injury of 5x2 cm., scale deep on left front parital region.
Cut injury of 10x5 cm., skin deep on left thigh:
Cut injury of 20x2 cm., x2.5 cm., from dorsum of right forearm to the
dorsum of hand. Deep dissection shows both radius and ulna fractured.
Cut injury 8x5 cm., skin deep over upper 1/3rd of upper arm.
Cut injury of 8 cm., x 3x3 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 10x2 cm., skin deep on back of chest below injury
no.11.
Cut injury of 10x2 cm., skin deep on right side of back of chest.
Stab injury of 6x2 cm., on right lumbar region and deep dissection
shows a lacerated injury of 2x1 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.
