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2023 DIGILAW 72 (AP)

State Of A. P. , rep by PP. v. Bontha Rahelu

2023-01-06

B.V.L.N.CHAKRAVARTHI, C.PRAVEEN KUMAR

body2023
JUDGMENT : (C. Praveen Kumar, J.) 1. The present Criminal Appeal and the Criminal Revision Case are filed assailing the judgment, dated 03.06.2008, in Sessions Case No.684 of 2005 on the file of the learned I Additional Sessions Judge, Guntur. 2. Originally, A-1 was tried for the offence punishable under Section 302 I.P.C. and A-2 to A-13 were tried for the offence punishable under Section 302 read with 34 I.P.C. for causing the death of one Bontha Abraham (hereinafter, referred to as “the deceased”) on 18.07.2005 at about 7.00 p.m. near four road junction, Audi Andhra Colony, Chilakaluripet. 3. Vide judgment, dated 03.06.2008, the learned Sessions Judge acquitted all the accused. Challenging the same, the State preferred Criminal Appeal No.401 of 2013 and the father of the deceased filed Criminal Revision Case No.1310 of 2008. 4. The facts, as disclosed in the evidence of the prosecution witnesses, show that all the accused and the prosecution witnesses are residents of Audi Andhra Colony, Chilakaluripet. The deceased is the son of P.W.1. He was running a provisions shop in their colony. The distance between the house of P.W.1 and the kirana shop was about 100 feet and there are four houses in between the said house and the kirana shop. It is said that A-1 and A-2 purchased provisions from the shop of the deceased on credit basis. Whenever the deceased used to ask for money, A-1 and A-2 used to pick up a quarrel with him. About two years prior to the incident, on one day, at about 6.00 or 7.00 p.m., A-1 and A-5 went to the house of A-4. At that time, wife of P.W.1 (P.W.5) asked A-1 for repayment of the amount due to the deceased. They picked up a quarrel with the wife of P.W.1 also, which was informed to P.W.1 and the deceased, who were at their provisions shop. Then, the deceased went and questioned A-4 about the quarrel with his mother. At that point of time, all the accused threw chilly powder on the face of the deceased. Then, A-1 is said to have beat the deceased on his head with a chutney pestle as a result of which, the deceased sustained bleeding injury on his head and fell on the ground. Hearing the galata, other witnesses rushed to that place. The accused threw chilly powder on them also. Then, A-1 is said to have beat the deceased on his head with a chutney pestle as a result of which, the deceased sustained bleeding injury on his head and fell on the ground. Hearing the galata, other witnesses rushed to that place. The accused threw chilly powder on them also. The injured was taken to Government Hospital, Chilakaluripet and after giving first aid in the Government Hospital, he was advised to be taken to Government General Hospital, Guntur for better treatment. The Doctor in the hospital advised for a surgery to be conducted on the head of the deceased and as such, an operation was performed. The deceased/injured is said to have survived for two days and later, died. Law was set into motion at the instance of P.W.11, who was working as Sub Inspector of Police, Chilakaluripet. On 18.07.2005, at about 10.30 p.m., he received information from the Government General Hospital, Chilakaluripet vide Ex.P-7. Immediately, he proceeded to the hospital and found the injured in Casuality Department. He claims to have recorded the statement of the injured, obtained his thumb impression, read out the contents in Telugu and basing on the said statement, which is placed on record as Ex.P-8, registered a case in Crime No.175 of 2005 for the offence punishable under Section 324 read with 34 I.P.C. against all the accused. Ex.P-9 is the original F.I.R. He examined P.Ws.1 to 5 and recorded their statements. On the next day morning, at 7.45 a.m., he along with mediators, proceeded to the scene of offence and prepared a panchanama of the scene, which is placed on record as Ex.P-1. He also got prepared Ex.P-10 – rough sketch of the scene. At the scene, he examined P.Ws.6, 7 and others and recorded their statements. On 20.07.2005, while P.W.11 was in the police station, received intimation about the death of the deceased from the Government General Hospital, Guntur under Ex.P-5. Immediately, he altered the section of law from Section 324 read with 34 I.P.C. to 302 read with 34 I.P.C. and issued Ex.P-11 – altered F.I.R. P.W.12 took up investigation from P.W.11 and on receipt of a copy of the altered F.I.R., proceeded to Government General Hospital, Guntur and held inquest over the dead body of the deceased. Ex.P-2 is the Inquest Report. Ex.P-2 is the Inquest Report. The inquestdars opined that the death of the deceased was due to head injury caused by A-1 and due to throwing of chilly powder over the face of the deceased by A-2 to A-13. After completing the inquest proceedings, he sent the body for post mortem examination. P.W.9 conducted autopsy over the dead body of the deceased and issued Ex.P-3 – Post Mortem Certificate. According to him, the death was due to injury on the head. P.W.12, who continued with the investigation, arrested A-1 to A-13 on 24.07.2005. After collecting all the necessary documents, a charge sheet came to be filed, which was taken on file as P.R.C.No.34 of 2005 on the file of the learned Judicial First Class Magistrate, Chilakaluripet. 5. On appearance of the accused, copies of the documents, as required under Section 207 Cr.P.C., were supplied to them. As the case is triable by a Court of Sessions, the same was committed to the Court of Sessions under Section 209 Cr.P.C. Accordingly, the same was made over to the Court of the learned I Additional Sessions Judge, Guntur for trial and disposal in accordance with law. 6. Basing on the material available on record, charges, as referred to earlier, came to be framed, read over and explained to the accused in Telugu to which, they pleaded not guilty and claimed to be tried. 7. To substantiate its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P-1 to P-11 and M.O.1. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of the prosecution witnesses to which they denied. No oral or documentary evidence was adduced on behalf of the accused. Disbelieving the statement of the deceased recorded by P.W.11 under Ex.P-8 and in view of the admission of P.Ws.1 to 5 that they came to the scene of offence after the incident was over, the learned Sessions Judge acquitted the accused. Challenging the same, the present appeal and the revision case came to be filed. During the pendency of these cases, A-2 and A-12 died. As such, the case against them was dismissed as abated on 26.03.2013. 8. Challenging the same, the present appeal and the revision case came to be filed. During the pendency of these cases, A-2 and A-12 died. As such, the case against them was dismissed as abated on 26.03.2013. 8. Sri Sricharan Telaprolu, learned counsel for the revision petitioner, mainly submits that the reasoning given by the learned Sessions Judge in acquitting the accused do not stand the test of legal scrutiny. According to the learned counsel, the evidence of five eye witnesses could not have been disbelieved by a single sentence stating that they came to the scene of offence after the incident was over. According to him, if the evidence is read as full, it would clearly indicate that they have witnessed the incident in question. Insofar as the dying declaration is concerned, he would contend that the dying declaration need not refer to the names of all the accused. In the dying declaration recorded by P.W.11, which was made the basis for registering the F.I.R., he would contend that it is not necessary to mention the names of all the accused but when the substance of the incident in question is mentioned, the trial Court could not have rejected the same. In other words, his argument appears to be that merely because there was no endorsement of the Doctor and no requisition was sent to the Magistrate for recording the dying declaration, does not, in all circumstances, make a dying declaration suspicious and hence, pleads that the judgment under challenge warrants interference of this Court. 9. Sri Soora Venkata Sainath, learned Special Assistant Public Prosecutor, toes in line with the argument of the learned counsel for the revision petitioner. 10. On the other hand, Sri Sreekanth Reddy Ambati, learned counsel for the respondents/accused, would submit that the reasoning given by the learned Sessions Judge warrants no interference. According to him, the learned Sessions Judge gave cogent and convincing reasons for disbelieving the evidence of P.Ws.1 to 5 and as such, the same requires no interference of this Court. 11. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. against A-1 and 302 read with 34 I.P.C. against A-3 to A-11 and A-13 beyond all reasonable doubt?” 12. 11. The point that arises for consideration is:- “Whether the prosecution has proved the guilt of the accused for the offence punishable under Section 302 I.P.C. against A-1 and 302 read with 34 I.P.C. against A-3 to A-11 and A-13 beyond all reasonable doubt?” 12. POINT:- It is to be noted here that the appeal and revision are against acquittal filed by the State and the father of the deceased respectively. The scope of interference in an appeal against acquittal was dealt with by the Hon'ble Supreme Court in Jaswant Singh v. State of Haryana, AIR 2000 SC 1833 , wherein the Apex Court observed as under:- “21. The principle to be followed by appellate courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (see Shivaji Sahabrao Bobade v. State of Maharashtra MANU/SC/0167/1973 : 1973CriLJ1783. The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat MANU/SC/0504/1996 : 1996CriLJ2867 : While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.” 13. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.” 13. In Ghurey Lal vs State Of U.P, Criminal Appeal No.155 Of 2006, while referring to the case of Sheo Swarup v. King Empero, (1934) 36 Bomlr 1185, the Hon’ble Apex Court discussed the ambit and scope of the powers of the appellate Court in dealing with an appeal against acquittal and observed as under: (at p. 230): "..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 crystallized in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and reevaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally illfounded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse. 46. This Court again in the case of Surajpal Singh & Others v. State, AIR 1952 SC 52 , has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. 46. This Court again in the case of Surajpal Singh & Others v. State, AIR 1952 SC 52 , has spelt out the powers of the High Court. The Court has also cautioned the Appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial court. The Court observed as under: "It is well established that in an appeal under S. 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." 47. This Court reiterated the principles and observed that presumption of innocence of accused is reinforced by an order of the acquittal. The appellate court could have interfered only for very substantial and compelling reasons. 48. In Tulsiram Kanu v. The State, AIR 1954 SC 1 , this Court explicated that the appellate court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present. In this case, the Court used a different phrase to describe the approach of an appellate court against an order of acquittal. There, the Sessions Court expressed that there was clearly reasonable doubt in respect of the guilt of the accused on the evidence put before it. Kania, C.J., observed that it required good and sufficiently cogent reasons to overcome such reasonable doubt before the appellate court came to a different conclusion. 49. In the same year, this Court had an occasion to deal with Madan Mohan Singh v. State of Uttar Pradesh, AIR 1954 SC 637 , wherein it said that the High Court had not kept the rules and principles of administration of criminal justice clearly before it and that therefore the judgment was vitiated by non-advertence to and mis-appreciation of various material facts transpiring in evidence. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision. 50. The same principle has been followed in Atley v. State of U.P., AIR 1955 SC 807 , (at pp. The High Court failed to give due weight and consideration to the findings upon which the trial court based its decision. 50. The same principle has been followed in Atley v. State of U.P., AIR 1955 SC 807 , (at pp. 809-10 para 5), wherein the Court said: "It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal." 51. The question was again raised prominently in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 . Bose, J. expressing the majority view observed (at p.220): "It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab, AIR 1953 SC 76 , (at pp.77-78); and if the trial Court takes a reasonable view of the facts of the case, interference under S. 417 is not justifiable unless there are really strong reasons for reversing that view. Surajpal Singh v. State, AIR 1952 SC 52 , at 54." 52. In Balbir Singh v. State of Punjab, AIR 1957 SC 216 , this Court again had an occasion to examine the same proposition of law. Surajpal Singh v. State, AIR 1952 SC 52 , at 54." 52. In Balbir Singh v. State of Punjab, AIR 1957 SC 216 , this Court again had an occasion to examine the same proposition of law. The Court (at page 222) observed as under: "It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge." Keeping in view the principle laid down in the judgments referred to above, we shall proceed to deal with the matter. 14. As seen from the record, the prosecution is mainly relying upon Ex.P-8 and the evidence of P.Ws.1, 3 and 5 to 7, who were examined as eye witnesses to the incident. Insofar as Ex.P-8 is concerned, this statement was recorded by P.W.11 pursuant to a requisition received from the hospital intimating admission of the injured under Ex.P-7. In the said statement, the deceased stated that when he questioned A-1 for having picked up a quarrel with his mother when she questioned for not paying the dues to the deceased, A-1 picked up a pestle and beat him on his head while others threw chilly powder in his eyes. Thereafter, his mother, P.Ws.6, 7 and others came there and shifted the injured to Chilakaluripet Hospital. This statement, which was recorded by P.W.11 on the date of incident, itself does not speak about the presence of P.Ws.2 to 4. First of all, the reason for disbelieving the said dying declaration is if really P.Ws.2 to 4 were eye witnesses to the incident and came to the scene of offence immediately after the incident, the deceased could not have failed to mention their presence in the dying declaration. First of all, the reason for disbelieving the said dying declaration is if really P.Ws.2 to 4 were eye witnesses to the incident and came to the scene of offence immediately after the incident, the deceased could not have failed to mention their presence in the dying declaration. Assuming for the sake of argument that he might not have noticed the presence of P.Ws.2 to 4, this dying declaration does not contain the endorsement of the Doctor, who was present and sent intimation to the police. In fact, the intimation sent under Ex.P-7 does not say that recording of a dying declaration is necessary. The Doctor, who sent Ex.P-7 intimation, was neither cited nor examined as a witness. Things would have been different had an endorsement of the Doctor was taken on the said statement. In the absence of the same, doubt arises as to really whether the deceased was in a position to make the statement. 15. With regard to the capacity of the deceased to make the statement, it is to be noted here that even as per the prosecution case, the deceased received a blow on his head as a result of which, he fell down. None of the witnesses who were present and claim to have carried the deceased to the hospital, speak about the deceased being conscious while he was being taken to the hospital. If really the deceased was conscious and if the situation warrants recording of a dying declaration, the Doctor, who has sent intimation to the Magistrate at the earliest point of time, would have recorded the dying declaration, which was not done in the instant case. That gives an indication that the deceased was not conscious by then. May be for that reason, Ex.P-7 does not recommend for recording of dying declaration. Hence, the reasoning given by the learned Sessions Judge in rejecting the dying declaration cannot be faulted with. 16. Coming to the oral evidence, the prosecution mainly relies upon the oral evidence of P.Ws.1, 3, 5 and 7, who were examined as direct witnesses to the incident. Hence, the reasoning given by the learned Sessions Judge in rejecting the dying declaration cannot be faulted with. 16. Coming to the oral evidence, the prosecution mainly relies upon the oral evidence of P.Ws.1, 3, 5 and 7, who were examined as direct witnesses to the incident. P.W.1, though in chief, speaks about the incident in question, but in the cross examination, admits that by the time he went to the scene of offence, the deceased was already on the ground and about 50 - 60 persons gathered around the deceased, which clearly indicate that he was not an eye witness to the incident. 17. Similarly, P.W.2, who also claims to have seen the incident, categorically admits in his cross examination that by the time he reached the scene, the deceased was on the ground with number of people around him. One another circumstance which requires to be noted here is that P.W.2 also claims to have given a report to the police which has not seen the light of the day. 18. Coming to the evidence of P.W.3, she also claims to be a direct witness to the incident. In her cross examination, she admits that by the time she went to the scene of offence, the deceased was down on the ground with persons numbering about 50 standing around the deceased. She also admits that one cannot see what happened at the house of A-4 from her house. Hence, projecting P.W.3 as an eye witness to the incident also, in our view, is not established by any reliable evidence. 19. Coming to the evidence of P.W.5, she is none other than the mother of the deceased. She speaks about a quarrel being picked up with A-1 when she questioned about the money due to the deceased. Her evidence shows that after the said incident, A-1 picked up a quarrel with her which she narrated to the deceased. Thereafter, the deceased proceeded towards the house of A-1 and herself, P.Ws.1 to 3, 6 and 7 followed him. This version, which is now spoken to by P.W.5, is not the case of the prosecution nor is the version of P.Ws.1 to 5 or the version as set out in Ex.P-8. A new story is being introduced by P.W.5 indicating as if all these people followed the deceased and watched the incident. This version, which is now spoken to by P.W.5, is not the case of the prosecution nor is the version of P.Ws.1 to 5 or the version as set out in Ex.P-8. A new story is being introduced by P.W.5 indicating as if all these people followed the deceased and watched the incident. Since the version set out by P.W.5 is at variance with the prosecution case, it may not be safe for us to believe the evidence of P.W.5, to fix culpability of the accused in commission of the offence. 20. Insofar as the evidence of P.Ws.6 and 7 is concerned, their evidence again toes in line with that of P.Ws.1 to 4, who have stated about deceased being on the ground by the time they went there and about 30 people surrounding the deceased. Under those circumstances, it is difficult to believe that P.Ws.1 to 5 have really witnessed the incident. On the other hand, the admissions that are elicited in their evidence would show that all of them came to the scene of offence after the incident and by the time they reached the scene, the deceased was on the ground. 21. At this stage, learned Special Assistant Public Prosecutor and the learned counsel for the revision petitioner would contend that there is sufficient motive for the accused to attack the prosecution witnesses. It may be true that there was some enmity between both the parties with regard to accused not paying the amount due to the deceased. Motive, however strong, in our view, cannot partake the character of conclusive proof. 22. Having regard to the above findings, we see no grounds to interfere with the impugned judgment and the appeal as well as the revision case are liable to be dismissed. 23. Accordingly, both the Criminal Appeal and the Criminal Revision Case are dismissed confirming the judgment, dated 03.06.2008, passed in Sessions Case No.684 of 2005 on the file of the learned I Additional Sessions Judge, Guntur. Miscellaneous petitions pending, if any, in these cases shall stand closed.