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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1502     OF     2008    

    BASAVENI RAVI & ANR. APPELLANTS VERSUS

    STATE OF ANDHRA PRADESH       RESPONDENT

O     R     D     E     R   

1. Basaveni Ravi (A-5) and Marri Rajkumar (A-8)  are the appellants. They are aggrieved by the  judgment and order passed by the High Court in  Criminal Appeal No.883 of 2005, dated 24.12.2007,  whereby and where under the High Court has  confirmed the judgment and order passed by the Ld.  Sessions Judge in Sessions Case No.200 of 2001,  dated 29.04.2005.

2. The circle Inspector of Police, Mandamarri had  filed charge sheet against 9 accused in all before  the Trial Court for the offence under Sections 148  and 302 read with Section 149 of the Indian Penal  Code, 1860(“IPC”  for short) for having assaulted

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and killed the deceased Kumara Swamy, S/o.Gajji  Komuramma (P.W.1).

3. Before the trial court the prosecution had  examined in all 23 witnesses, including P.W.1, who  is the sole eye-witness of the entire incident. In  her evidence before the Trial Court, she has  categorically admitted that A-9 was not present on  the date of the incident.  The Trial Court, taking  into consideration the evidence of the prosecution  witnesses,(P.W.1 and P.W.2) has acquitted A-1 and  A-3 apart from A-9, on the ground that both the  aforementioned witnesses had not identified the  presence of A-1 and A-3. However, it has convicted  A-2 and A-4 to A-8 for the offence noted earlier.  This conviction was primarily based on the evidence  of P.W.1, who is said to be the eye-witness of the  entire incident.

4. Accused A-2, A-4 to A-8  who were convicted by  the Trial Court had approached the High Court by  filing an appeal under Section 374 (2) of the Code  of Criminal Procedure Code, 1973.

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5. The High Court after re-appreciating the entire  evidence on record, including the evidence of the  sole eye witness P.W.1, has thought it fit to  acquit A-2, A-4, A-6 and A-7, however, confirmed  the conviction and sentence of A-5 and A-8 for the  offence under Section 302 read with Section 34 of  the IPC.  

6. The accused A-5 and A-8, aggrieved by the order  passed by the High Court, are before us in this  appeal.  

7. Before proceeding further, we note that the  State has not preferred any appeals against the  order of acquittal of A-1, A-2, A-3, A-4, A-6 and  A-7.  Be that as it may.

8. We have heard Shri D. Ramakrishna Reddy,  learned counsel appearing for the appellants and  Shri Amit Nain, learned counsel appearing for the  respondent-State.  

9. We have carefully perused the conclusion  reached by the Trial Court and the High Court for  acquitting all the accused persons except A-5 and

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A-8. The least that we can say is, we are surprised  by the judgment and order passed by the Trial Court  as well as by the High Court.  We say so for the  reason that, having acquitted all the other accused  persons on the same piece of evidence available on  record,  could not have convicted A-5 and A-8,  though they were charged under Section 302 read  with Section 34 of the IPC.

10. In view of the above, we are of the opinion  that the benefit of doubt should also be extended  to A-5 and A-8 as well. Accordingly, while  allowing this appeal, we set aside the conviction  and sentence of A-5 and A-8.  We direct the release  of the appellants forthwith, if they are not  required in any other case.

Ordered accordingly.        

.......................J. (H.L. DATTU)

.......................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI; SEPTEMBER 27, 2012