NALLABOTHU RAMULU @ SETHARAMAIAH Vs STATE OF A.P.
Bench: SUDHANSU JYOTI MUKHOPADHAYA,RANJANA PRAKASH DESAI
Case number: Crl.A. No.-001424-001424 / 2003
Diary number: 18880 / 2003
Advocates: JOHN MATHEW Vs
D. MAHESH BABU
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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
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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
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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.
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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
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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
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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.
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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
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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
1 (2007) 4 SCC 415
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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.”
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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
2 (2003) 1 SCC 204 3 (2004) 9 SCC 186
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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,
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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
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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
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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)
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New Delhi; April 22, 2014.
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