HON'BLE SRI JUSTICE K. LAKSHMAN
AND
HON'BLE SMT. JUSTICE P. SREE SUDHA
CRIMINAL APPEAL No.485 OF 2013
JUDGMENT: (Per Hon'ble Sri Justice K. Lakshman)
The State filed the present Criminal Appeal challenging the
judgment dated 07.11.2008 passed by learned VI Additional Sessions
Judge (Fast Track Court), Nizamabad at Kamareddy, in Sessions Case
No.320 of 2004 acquitting accused Nos.1 to 3 for the offences
punishable under Sections - 302 and 324 read with 34 of the Indian
Penal Code, 1860 (IPC).
2. Respondent Nos.1 to 3 herein are accused Nos.1 to 3 in the
aforesaid S.C. No.320 of 2004. For the sake of convenience, the parties are hereinafter referred as they arraigned in S.C. No.320 of 2004.
3. The case of the prosecution is as under:
i) PW.3 - Erukala Chinna Pochaiah is the younger brother's son of the deceased - Kavadi @ Erukala Pedda Thammaiah. The accused are the residents of Almajipoor Village and so also the deceased. 2
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ii) The accused are having inimical terms with PW.3 and the deceased regarding water tap.
iii) On 29.10.2003, the Water Users Association Elections were held where the deceased and PW.3 supported one Mr. Pasham Ram Reddy of the same village who was defeated in the said elections. Therefore, the deceased while leaving the election counting place i.e., Junior College, Yellareddy abused the accused persons stating that on account of not casting of votes by the accused family, the said Pasham Ram Reddy was defeated. Then, the accused became angry and they tried to attack the deceased. But, due to the intervention of the mob, who were present there, the issue was subsided.
iv) On 30.10.2003 at about 7.00 A.M., while PW.2 was drawing water from the water tap at the aforesaid Village, accused No.1 went there and abused her in filthy language and obstructed her from drawing water and thrown her water pot away. Due to which, heated arguments between accused No.1 and PW.2. On seeing the situation, the deceased, who is the brother-in-law of PW.2, rushed there and rescued her from accused No.1, but some galata took place between them. On seeing the galata, accused Nos.2 and 3, who are the brothers of accused No.1 came there armed with sticks, while 3 KL,J & PSS,J Crl.A. No.485 of 2013 accused No.1 brought a rice pounder from the house and accused Nos.1 to 3 beat the deceased with rice pounder and sticks and caused head injury.
v) On seeing the said situation, PWs.1 and 3 came to rescue the deceased, but accused Nos.2 and 3 beat them and caused injuries. The said incident was witnessed by PWs.2, 4, 5 & LWs.4, 6, 7 and 9, the injured - PWs.1 and 3 and also the deceased. The injured and the deceased were shifted to Government Hospital, Yellareddy immediately on 30.10.2003, whereas PW.10 - Dr. Yadagiri treated PWs.1 and 3. The deceased was shifted to Gandhi Hospital, Secunderabad, where he died on 31.10.2003 at about 5.30 a.m. while undergoing treatment. Thus, accused Nos.1 to 3 have committed the aforesaid offences.
vi) On receipt of the complaint lodged by PW.3 on 30.10.2003 at 8.00 A.M., the Police of Yellareddy registered a case in Crime No.85 of 2003 under Section - 324 IPC and invested into the matter.
vii) During the course of investigation, on receipt of information about the death of the deceased, the police altered the section of law from 324 IPC to Sections - 302 and 324 IPC. 4
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4. On completion of investigation, the police laid a charge sheet against the accused for the offences punishable under Sections - 302 and 324 read with 34 IPC and, thereafter, the case was committed to the Court of Sessions which was taken on file vide S.C. No.320 of 2004 for the said offence.
5. The trial Court framed the charges under Sections - 302 and 324 read with 34 IPC against the accused. The accused denied the charge and pleaded not guilty and prayed for trial. Thus, the accused was put on trial.
6. During trial, the prosecution has examined as many as 13 witnesses viz., PWs.1 to 13 and marked Exs.P1 to P17 documents and MOs.1 and 2 were exhibited. No oral evidence was let in on behalf of the accused, however, Exs.D1 to D10 were marked.
7. After completion of trial and on appreciation of evidence, both oral and documentary, the trial Court found the accused not guilty of the aforesaid charges framed against them and accordingly acquitted them of the aforesaid charges.
8. Feeling aggrieved by the said acquittal, the State preferred the present appeal.
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9. Heard Mr.T.V. Ramana Rao, learned Additional Public Prosecutor appearing on behalf of the Appellant - State and Mr. Akkam Eshwar, learned counsel for respondents - accused Nos.1 to 3.
10. Learned Additional Public Prosecutor would contend that the learned Sessions Judge erred considering the evidence of PWs.1 to 5 properly, who clearly deposed about the accused beating the deceased and out of the injuries caused to the deceased by the accused only the deceased died while undergoing treatment. There is ample evidence to show the involvement of accused in commission of the aforesaid offences. Minor contradictions and inconsistencies would not tilt the case of prosecution. Without considering the said aspects, the learned Sessions Judge acquitted the accused and, therefore, the judgment is liable to be set aside by convicting the accused.
11. On the other hand, learned counsel for respondents - accused Nos.1 to 3 would submit that there is no sufficient evidence to connect the accused with the alleged offences. There are discrepancies and inconsistencies in the evidence of prosecution witnesses, more particularly PWs.1 to 5. The learned Sessions Judge after considering the entire evidence, both oral and documentary, acquitted the accused of the aforesaid offences. There is no error in it. 6
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12. In view of the aforesaid rival submissions, the only issue that falls for consideration by this Court is:
Whether the findings of the trial Court acquitting the accused for the offences under Sections - 302 and 324 read with 34 are sustainable, both on facts and in law?
13. Now, it is apt to refer to the evidence of witnesses so as to come to a conclusion whether the trial Court was right in acquitting the accused or not?
14. According to the prosecution, LWs.4 to 9 were eye- witnesses out of them, LW.5 and LW.8 were examined as PWs.4 and 5, whereas, LW.1 is the complainant who was examined as PW.3. LWs.1 and 2 examined as PWs.3 and 1 respectively were injured in the quarrel took place among them, the deceased and the accused. The prosecution did not examine the remaining eye-witnesses i.e., LWs.4, 6, 7 and 9. So, now we have to examine the evidence of PWs.4 and 5, who were eye-witnesses to the incident with regard to the galata took place among the accused persons, the deceased and PWs.1 to 3 and out of such galata, the deceased received the injuries which led to the death of the deceased.
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15. PW.4 is the resident of same village of accused and the deceased. PW.1 is his son, while PWs.2 and 3 are their relatives and the deceased was his elder brother. Accused Nos.1 to 3 are also the sons of his junior paternal uncle. On 30.10.2003 at about 7.00 A.M., PW.2 went to the tap to collect the water and then accused No.1 picked up quarrel and removed her water pot from the tap. Then, the deceased questioned accused No.1 for removal of water pot on which accused No.1 picked up quarrel with the deceased and beat him with a rice pounder on his head. When PW.1 and 3 intervened, accused Nos.2 and 3 beat them with sticks and at that time; he was reaching the place of incident. The deceased fell down on receiving the pestle blow on head. PWs.1 and 3 have also received injuries on their heads. About 50 to 60 persons were present and had witnessed the incident. On seeking the villagers, accused Nos.1 to 3 fled away from the place of offence. PW.5, PW.6 and LWs.12 and 14 were also present and witnessed the offence. The deceased was taken to hospital at Yellareddy on a tractor and from there he was taken to Gandhi Hospital by himself, the wife of the deceased, his son and daughter. On the next day, the deceased died while undergoing treatment. PW.5 also deposed on the very same lines.
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16. Referring to the evidence of PWs. 1 to 4 which goes to show that there was political rivalry between the families of PWs.1 to 3 and the families of accused persons and also referring to the evidence of PWs.1 to 3, the trial Court observed that they consistently stated that after the incident, the deceased was taken to Government Hospital, Yellareddy and from there to Gandhi Hospital, Secunderabad. If really, the deceased was beaten with a pestle on his head as stated by PWs.1 to 3, definitely he must have received bleeding injury. PW.1 in his cross-examination stated that when the deceased was beaten, there was bleeding injury and so his clothes became blood stained and further bleeding fell on ground. The Investigating Officer did not seize either the blood stained clothes of the deceased or any blood stained earth from the place of the alleged offence. Apart from that, PW.11 - Investigating Officer in his evidence did not at all deposed that on 30.10.2003 at 8.00 a.m., PWs.1 to 3 brought the deceased to the police station or that he sent the deceased to Government Hospital for medical treatment, whereas PW.10 - the doctor deposed that on 30.10.2003 he referred the deceased to Gandhi Hospital, Secunderabad, for specialized treatment. The trial Court also observed that it is common knowledge that a 9 KL,J & PSS,J Crl.A. No.485 of 2013 patient is referred to a big hospital if his/her condition is serious because of grave injuries sustained by him/her. The evidence of PW.10 does not at all show that he found any injuries on the body of the deceased so as to say that it was necessary to send him to a big hospital. If really, PW.10 examined the deceased who referred him to Gandhi Hospital, Secunderabad, he could have issued medical certificate just as he issued Exs.P7 and P8 wound certificates to PWs.1 and 3 after finding injuries on them. In Ex.P16 - Photostat copy of case sheet, it is simply mentioned that the deceased was referred to Gandhi Hospital and it does not show the signature of PW.10. No reasons were mentioned as to why it became necessary to refer the deceased to Gandhi Hospital. Thus, it is doubtful that the deceased was taken to Govt. Hospital and PW.10 examined the deceased and referred to Gandhi Hospital, Secunderabad.
17. The trial Court also referred in its judgment that Ex.P17 - PME report shows that anti-mortem injury found on the dead body of the deceased was abrasion over the vertex measuring 6 x 3 cm with underlying fracture of the vault. If a blow is given with a pestle on head, it is improbable that a mere abrasion would be caused. Thus, it also creates a suspicion in the case of the prosecution. 10
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18. According to the prosecution, PWs.1 and 1 and 3 were received injuries in the quarrel picked up among them and the accused persons. PW.10 deposed that on 30.10.2003 at 8.30 P.M. on requisition from the Police of Yellareddy, he examined Pw.3 and found the injuries i) A lacerated injury over the forehead measuring 2 x ¼"; ii) A contusion over the right forearm measuring 5 x 2" and that he issued Ex.P7 injury certificate. He further deposed that he also examined PW.1 and found the injuries as i) A lacerated injury over the vertex of the head measuring 2 x 1/4" and ii) A contusion over the lateral accept of the right wrist measuring 2 x 1" and he issued Ex.P8 injury certificate. He further deposed that the injuries are three hours old.
19. During cross-examination, PW.10 admitted that he did not mention the age of the injuries sustained by PW.3. According to the prosecution, PWs.1 and 3 received injuries at the same time. So, the age of the injuries of PW.3 also must be three hours old. If that opinion of the doctor is taken into account since he examined the injured witnesses at 8.30 p.m., in all probability, the alleged incident must have taken place at 5.30 p.m. on that day. Thus, the opinion 11 KL,J & PSS,J Crl.A. No.485 of 2013 expressed by PW.10 would also improbabilize the version of PWs.1 to 3 about the time at which the alleged incident took place.
20. Referring to the contents of Ex.P9 - FIR, the complaint was lodged at 8.00 a.m. on 30.10.2003, whereas PW.1 in his cross- examination deposed that the time taken for the incident was one hour and that the police station in Yellareddy is at a distance of 12 kms. from his village Almajipoor and that it took one hour for taking the deceased on tractor from the village to Yellareddy, the trial Court observed that in view of the said version, PWs.1 to 3 along with the deceased must reached the police station only by 9.00 a.m. and not earlier to that.
21. PW.11 - Investigating Officer deposed that on 30.10.2003 on the complaint given by accused No.2, he registered a case in Crime No.86 of 2003 against PWs.1, 3 and the deceased at 8.30 a.m. on that day and that he referred both accused Nos.1 and 3 to Government Hospital for medical treatment without arresting them. He also admits that when he conducted panchanama in respect of the above crime vide Ex.D4, accused No.2 was present. There is no explanation from PW.11 as to why he did not arrest accused Nos.1 and 2 even though a case had already been registered against them at 8.00 A.M. on the 12 KL,J & PSS,J Crl.A. No.485 of 2013 complaint given by PW.3. The absence of any explanation creates a doubt whether FIR under Ex.P9 was registered by then or not. That is why, it was rightly suggested to him that he did not register the FIR till 2.00 p.m. on that day and it was thereafter only he registered the case by ante timing. In addition to it, there is delay of more than 24 hours in sending FIR to the Magistrate concerned. PW.11 in his cross-examination admits that the endorsement on Ex.P9 FIR shows that it was received by the Magistrate at 11.00 A.M. on 31.10.2003 and the trial Court relied on the decision Kalu v. State of U.P. 1, wherein the Apex Court held that FIR in a criminal case, more particularly in murder case, is a vital and valuable piece of evidence and any delay in lodging the FIR often results in embellishment which is a creature of an afterthought and that if there is delay in sending FIR to the local Magistrate, inference is that FIR was not lodged at the time it is stated to have been registered unless there is satisfactory explanation for the delay.
22. That apart, in Ex.D2 - charge sheet, PWs.1, 3 and the deceased allegedly beat the accused persons causing injuries to them at 8.30 A.M. on the same day. So, time gap between the incident of 1 . 1995 Crl.L.J. 457 (SC) 13 KL,J & PSS,J Crl.A. No.485 of 2013 the present case and the incident of the counter case by the accused persons is only half an hour. Significantly, Ex.P11 - sketch in this case and Ex.D5 sketch in the counter case would show that the place of offence is one and the same. Exs.D6 to D8 would certificates of accused persons show that there were two simple injuries on accused No.1, four simple injuries on accused No.2 and one simple injury on accused No.3.
23. It is also referred by the trial Court that according to PW.11, on 30.10.2003 he visited the place of offence and conducted panchanama of scene under Ex.P10 and prepared rough sketch of it under Ex.P11 in the presence of PWs.6 and 7. Whereas, PW.6 deposed that on 30.10.2003 at 4.00 p.m. when himself and Pullela Sailoo were standing in front of the house of Mr. Ram Reddy, Sub- Inspector came and prepared panchanama of the scene and obtained their signatures by putting them in fear. Whereas, PW.7 deposed that when both himself and PW.6 were standing in front of the house of the said Ram Reddy, police called them to Erukalagudem and they were taken to a public tap and the police conducted panchanama of the scene and drew rough sketch. So, the evidence of PW.6 is quite 14 KL,J & PSS,J Crl.A. No.485 of 2013 inconsistent with the evidence of PW.7 as PW.6 never stated that the panchanama was conducted at the public tap in Erukalagudem.
24. Another inconsistency pointed out by the trial Court is that on Ex.P10 panchanama and Ex.P11 sketch, crime number is mentioned as 85 of 2003 registered for the offences punishable under Sections - 302 and 324 IPC. According to PW.11, on 31.10.2003 at 7.30 A.M., PW.3 came to the police station and gave Ex.P12 complaint informing about the death of the deceased and on the basis of the same, he altered the section of law to 302 and 324 IPC and issued Ex.P13 alteration memo. By virtue of the same, it is clear that the case under Sections - 302 and 324 IPC was registered by issuing alteration memo only on 31.10.2003. If really, the panchanama was conducted and rough sketch was drawn on 30.10.2003, the offence under Section - 302 IPC could not have been mentioned while mentioning the crime number on the panchanama and the sketch.
25. PW.11 in his cross-examination admitted that by mistake it was so mentioned, which is palpably false. The fact that the crime number on the panchanama and the sketch is mentioned as 302 and 324 IPC would inferentially show that it was only on 31.10.2003 they 15 KL,J & PSS,J Crl.A. No.485 of 2013 were prepared, and consequently, it has to be concluded that on 30.10.2003, PW.11 did not at all visit the scene of offence and did not prepare the panchanama and the sketch in the presence of witnesses. Therefore, the evidence of PWs.6, 7 and 11 that on 30.10.2003 at 4.30 p.m. the panchanama was conducted for the scene of offence and rough sketch was drawn as shown in Exs.P10 and P11 is false.
26. The trial Court also observed that there is no proof as to the cause of death of the deceased. The reason assigned by it is that the doctor, who conducted postmortem examination, was not examined. According to the prosecution, Dr.T. Vikas Vijay, Assistant Professor of Gandhi Medical College, Secunderabad, conducted autopsy over the dead body of the deceased, but prosecution examined PW.13, Mr. B. Karunakar, Assistant Professor of the same College, as the said Dr.Vikas Vijay went abroad. PW.13 did not assist Dr. Vikas Vijay in conducting PME and he did not identify the signature of the doctor, who issued PME report. Ex.P17-PME report, the following injuries were found:
"Abrasion over the vertex measuring 6 x 3 cm with underlying fracture of the vault of skull with fracture line extending to occipital bone and middle cranial Fossa with Sub dural 16 KL,J & PSS,J Crl.A. No.485 of 2013 Hematonma on the left Parieto-temporal region of brain measuring 15 x 8 cm."
The cause of death was on account of head injury. Ex.P16 case sheet does not show that when the deceased was taken to Government Hospital, Yellareddy, there was injury on his body. Contra to it, Ex.P17 shows antemortem injury. As mentioned above, probability would not suggest that an abrasion would be caused when a blow is given with a pestle. In view of inconsistency between the evidence of PWs.16 and 17 and the improbability, the examination of doctor, who actually conducted PME was indispensable, not only to prove the contents of the report but also to enable the accused to cross-examine him in the light of the defence taken by them. Since the doctor was not examined, the cause of the death mentioned in the report is not proved.
27. Further, in the FIR, it is not mentioned that PW.4 is the younger brother of the deceased. If really he was present when the accused attacked the deceased, he would have intervened. That apart, in the FIR, it is not mentioned that he witnessed the alleged incident. Further, PWs.1 to 3 did not at all say that PW.4 was present at the 17 KL,J & PSS,J Crl.A. No.485 of 2013 time of alleged incident. Thus, it is very doubtful that he was present at the time of alleged occurrence.
28. PW.5 denied having stated before the police as in Ex.D1 that Samaiah and Chinna Muthaiah beat Pedda Muthaiah with sticks and Pedda Muthaiah fell down on receiving injury. The version before the police is quite contra to his statement before the Court. Therefore, Ex.D1 shows serious contradiction in his evidence affecting the credibility of his version before the Court. Moreover, in cross-examination, he categorically says that Ram Reddy is his father- in-law. The said Ram Reddy is one of the contestants in Water Users Association elections whom PWs.1 to 3 and the deceased supported.
29. Referring to the above said inconsistencies and contradictions in the evidence of prosecution evidence, both oral and documentary, the trial Court came to the conclusion that the testimonies of PWs.1 and 3, who are injured witnesses and the evidence of PW.2 - eye witness cannot safely be relied upon, because FIR is doubtful and further the medical evidence on record is not consistent and cogent. Further, the testimonies of PWs.4 and 5 are found to be not credible. Thus, on a careful scrutiny of testimony of 18 KL,J & PSS,J Crl.A. No.485 of 2013 PWs.1 to 5, the trial Court found that their version is not natural but artificial and it does not inspire confidence to accept the same and thereby disbelieved their evidence.
30. As far as recovery of material objects is concerned, the trial Court observed that in pursuance of the confession made by accused No.1, PW.12 - Investigating Officer recovered MO.1 - pestle under cover of Ex.P14 - portion of confession-cum- recovery panchanama and also recovered MO.2 - stick in pursuance of confession made by accused No.2 under cover of Ex.P15 portion of his confession - cum- recovery panchanama. PW.9 deposed that the police called him to the house of Erukala People, where there is a public tap and the police called accused persons to that place. At the instance of police, he enquired with accused persons and they confessed about the offence and that accused No.1 brought MO.1 rice pounder from his house and the same was seized by the police. Thereafter, the police arrested the accused and took them away.
31. As per Section - 27 of the Indian Evidence Act, any informative statement given by the accused while in custody of the police showing the discovery of a fact is admissible in evidence. 19
KL,J & PSS,J Crl.A. No.485 of 2013 Since PW.12 is a police officer, his testimony cannot be safely relied upon, unless it is corroborated by independent witness. Though prosecution examined PW.9, his evidence does not show corroboration to the testimony of PW.12 with regard to recovery of MOs.1 and 2. Further, PW.9 did not speak about recovery of MO.2 stick as stated by PW.12. Thus, the prosecution also failed to prove the alleged confession leading to recovery of MOs.1 and 2.
32. The trial Court after analyzing the entire evidence on record both oral and documentary came to the conclusion that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt and accordingly acquitted them for the aforesaid offences.
33. In Khema alias Khem Chandra Etc. v. State of Uttar Pradesh 2 relied upon by learned counsel for the respondents - accused, the Hon'ble Supreme Court considering that the trial court as and the High Court have failed to take into consideration the vital discrepancies and inconsistencies in the evidence of the prosecution witnesses and that though independent witnesses were available, the prosecution has failed to examine them, held that the appellants are entitled for benefit of doubt.
2. AIR 2022 SC 3765 20 KL,J & PSS,J Crl.A. No.485 of 2013
34. In Amar Singh v. State (NCT of Delhi) 3 relied upon by learned counsel for the accused, the Apex Court held that conduct of eye witness either at the time of incident or immediately thereafter is not natural and does not inspire confidence which makes his presence on the spot extremely doubtful and that prosecution miserably failed to prove the alleged offences beyond doubt by adducing cogent and trustworthy evidence, the accused are entitled for benefit of doubt.
35. In Jafarudheen v. State of Kerala 4, the Apex Court held as under:
"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused 3 . AIR 2020 SC 4894 4 . 2022 SCC Online SC 495 21 KL,J & PSS,J Crl.A. No.485 of 2013 has to be disturbed only by thorough scrutiny on the accepted legal parameters."
36. The Apex Court reiterated the aforesaid principle in Ravi Sharma v. State (Government of N.C.T. of Delhi) 5.
37. In Harbans Singh v. State of Punjab 6, the Apex Court held as under:
" In many cases, especially the earlier ones, the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an appeal court should not interfere with an order of acquittal. (Vide Suraj Pal Singh v. State [1952 SCR 194]; Ajmer Singh v. State of Punjab [(1952) 2 SCC 709 : 1953 SCR 418]; Puran v. State of Punjab [(1952) 2 SCC 454 : AIR (1953) SC 459] ). The use of the words "compelling reasons"
embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words "compelling reasons". In later years the Court has often avoided emphasis on "compelling reasons" but nonetheless adhered 5 . (2022) 8 SCC 536 6 . AIR 1962 SC 439 22 KL,J & PSS,J Crl.A. No.485 of 2013 to the view expressed earlier that before interfering in appeal with an order of acquittal a court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (Vide Chinta v. State of Madhya Pradesh, Criminal Appeal No. 178 of 1959); Ashrafkha Haibatkha Pathan v. State of Bombay, Criminal Appeal No. 38 of 1960).
9. It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the court did not in any way try to curtail the power bestowed on appellate courts under Section 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the fact that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the court was anxious to impress on the appellant courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of 23 KL,J & PSS,J Crl.A. No.485 of 2013 this Court on "compelling reasons". But, on close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the Rule that in deciding appeals against acquittal the court of appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
38. In Champaben Govindbhai v. Popatbhai Manilal 7, the Apex Court held as under:
"12. It is well settled that in an appeal against acquittal the appellate court does not reverse the finding of acquittal if the court while granting acquittal has taken a reasonable or a possible view on the evidence and materials on record. Law is 7 . (2009) 13 SCC 662 24 KL,J & PSS,J Crl.A. No.485 of 2013 equally well settled that if the view taken by the court granting acquittal is perverse or shocks the conscience of the higher court, the finding of acquittal can be reversed.
13. In the instant case, the High Court as the first appellate court has a duty to consider in detail the material on record and also should appreciate the evidence very carefully before affirming the order of acquittal given by the trial court.
14. The counsel for the respondents referred to the decision of this Court in Chandrappa v. State of Karnataka [(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] to put forward the argument that an appellate court must bear in mind that in case of acquittal, there is a 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 been acquitted, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5. In this connection we may refer to the principles summarised in para 42 at SCC p. 432 of the judgment in Chandrappa case and they are extracted:
25
KL,J & PSS,J Crl.A. No.485 of 2013 "42. ... (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further 26 KL,J & PSS,J Crl.A. No.485 of 2013 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."
Also, if two reasonable views are possible on the basis of the evidence on record and one favourable to the accused has been taken by the trial court it ought not to be disturbed by the appellate court (para 44)."
39. In the light of the above said legal position, coming to the facts of the case on hand, as discussed above, on analyzing the entire evidence, the trial Court held that though there was political rivalry between the families of the deceased and the accused persons, on the date when the alleged incident occurred, there is absolutely no evidence that the respondents - accused persons were having pre- meeting of mind, premeditation and pre-plan for committing murder of the deceased and in furtherance of the common intention the accused persons caused injuries with the help of MOs.1 and 2. Thus, ingredients of Sections - 302 and 324 IPC are not made out from the evidence brought on record. The said findings of the trial Court are on consideration of the entire evidence, both oral and documentary. The 27 KL,J & PSS,J Crl.A. No.485 of 2013 same are supported by sound reasons. Whereas, learned Additional Public Prosecutor failed to make out a ground to interfere with the said well founded judgment and findings of the trial Court.
40. In the light of the aforesaid discussion and principle laid down in the aforesaid decisions, we do not find any reasons to interfere with the judgment of the trial Court and, therefore, the present appeal fails and is liable to be dismissed.
41. The present Criminal Appeal is accordingly dismissed confirming the judgment dated 07.11.2008 passed by learned VI Additional Sessions Judge (Fast Track Court), Nizamabad at Kamareddy, in Sessions Case No.320 of 2004 acquitting accused Nos.1 to 3 for the offences punishable under Sections - 302 and 324 read with 34 of the Indian Penal Code, 1860 (IPC).
As a sequel, the miscellaneous applications, if any, pending in the appeal shall stand closed.
_________________ K. LAKSHMAN, J _________________ P. SREE SUDHA, J 31st October, 2023 Mgr