Andhra Pradesh High Court - Amravati

The State Of A.P. vs Neelishikari Anwar Singh Another on 28 July, 2021

Bench: C.Praveen Kumar, B Krishna Mohan

       THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

                                    AND

       THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                 Criminal Appeal No. 54 of 2014

JUDGMENT:     (Per Hon'ble Sri Justice C.Praveen Kumar)


1)   In-spite of service of notice on respondents, none appear on

their behalf. Heard Sri. S. Dushyanth Reddy, learned Additional

Public Prosecutor, through Blue Jeans video conferencing APP

and with his consent, the appeal is disposed of.

2) Assailing the Judgment, dated 31.05.2011, passed in

Sessions Case No. 212 of 2009 on the file of the Principal Sessions

Judge, Kurnool, wherein, A1 and A2 were tried for an offence

punishable under Section 302 I.P.C. and acquitted, the present

Criminal Appeal is filed by the State.

3) A1 and A2, who are the son and father, came to know about

the illegal intimacy of the deceased with PW3, who is the sister of

A2. About four days prior to the incident, both the accused went

to the house of PW1 [father of the deceased] and warned him to

have control over his son.

4) On 22.01.2008, PW1, his wife [not examined] and the

deceased slept in their house. While so, in the early hours around

3.00 A.M., PW1 noticed the deceased [son] and his cycle missing

from the house. On suspicion, PW1 along with PW2 and others

went to the house of PW3. They noticed PW3 with injuries and on

enquiry, PW3 informed them that while the deceased was with

PW3, A1 and A2 noticed it, beat PW3 and took away the deceased

into the nearby bushes. Then PW1, PW2 and his wife went in

search of the deceased. On the way, PW4 met them on the road

and while talking with him, heard some cries from nearby bushes.

PW1 and PW2 claimed to have gone there and noticed A1 beating

the deceased with the pestle, while A2 catching hold of the hands

of the deceased. When PW1 and PW2 raised cries, A1 and A2 fled

away leaving the deceased. PW1, PW2, PW4 and others found the

deceased with several head injuries. At about 10.00 A.M., PW1

lodged an oral report, which was reduced into writing and the

same came to be registered as a case in Crime No. 8 of 2008.

Ex.P11 is the First Information Report.

5) PW12 - the Sub-Inspector of Police, on receipt of a copy of

Ex.P11 from PW10, took up investigation. He proceeded to the

scene of offence, which is situated at the outskirts of

Neelishikaripeta, Nandikotkur, and in the presence of PW11

conducted inquest over the dead body. Ex.P12 is the Inquest

Report. During inquest, he examined PW1 to PW5 and PW9. He

also got prepared a rough sketch of the scene, which is placed on

record as Ex.P13. At the time of inquest, he seized M.O.1 to

M.O.5, M.O.8 and M.O.9. After completing the inquest

proceedings, the dead body was sent for postmortem examination.

6) PW8 the Medical Officer at Government Hospital,

Nandikotkur, conducted autopsy over the dead body of the

deceased and issued Ex.P9 - post-mortem examination report.

7) On 31.01.2008 at about 8.30 A.M., on reliable information,

PW12 picked up PW6, PW7 and along with other staff reached

Brahmamgari Mutt. On seeing the police, two persons tried to

escape. The police apprehended the said persons, who disclosed

their identity. In the presence of PW6 and PW7, he interrogated

the said persons separately and both of them confessed about the

commission of the offence. Pursuant to the confession made,

blood stained clothes of A1 and A2 were discovered near Jammi

Chettu. Further, the confession of the accused, lead them to

discovery of an axe and pestle. A panchanama to that effect came

to be prepared, which is marked as Ex.P19. M.O.6, M.O.10,

M.O.11, M.O.12 and M.O.13 are the material objects produced by

the accused, pursuant to their confession, which were seized

under Ex.P20. After collecting all the necessary documents and

the R.F.S.L., report, a charge-sheet came to be filed, which was

taken on file as P.R.C. No. 21 of 2008 on the file of the Judicial

Magistrate of First Class, Nandikotkur.

8) On appearance of the accused, copies of all documents as

required under Section 207 Cr.P.C. came to be furnished. Since

the offence is triable by a Court of Sessions, the same was

committed to the Court of Sessions under Section 209 Cr.P.C. On

appearance of the accused, charge as referred to earlier came to

be framed, read over and explained to the accused, to which they

pleaded not guilty and claimed to be tried.

9) In support of its case, the prosecution examined PW1 to

PW12 witnesses and got marked Exs.P1 to P24 beside marking

M.O.1 to M.O.13. Out of 12 witnesses examined by the

prosecution, PW3, PW4, PW5, PW6, PW7 and PW9 did not support

the prosecution case and they were treated hostile by the

prosecution. After completion 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 prosecution witnesses, to which they denied, however

did not adduce any defence evidence.

10) Disbelieving the evidence of PW1 and PW2, the learned

Sessions Judge acquitted the accused. Challenging the same, the

present appeal came to be filed by the State.

11) Sri. S. Dushyanth Reddy, learned Additional Public

Prosecutor, would contend that learned Sessions Judge erred in

acquitting the accused for the offence punishable under Section

302 I.P.C., when the evidence on record clinchingly establish the

involvement of the accused in the crime. According to him, PW1

and PW2 are the eye witnesses to the incident and there is no

justification to disbelieve their presence at the scene. He submits

that, though, PW3 did not support the prosecution case, the fact

that PW1 and PW2 went and saw the incident, cannot be doubted.

He further submits that the First Information Report was given

immediately, which reached the Magistrate at the earliest point of

time.

12) In-spite of service of notice on the respondents, there is no

representation on their behalf.

13) The point that arises for consideration is, whether the

prosecution was able to establish the guilt of the accused beyond

reasonable doubt?

14) A perusal of the material placed before the court would show

that the entire case revolves around the evidence of PW1 and PW2.

PW1 is the father and PW2 is the brother of the deceased.

According to them, the deceased was having illegal contacts with

PW3, who is the sister of A2. After coming to know about the

same, they scolded the deceased, who promised to discontinue his

contacts with PW3. Once or twice PW3 came to the house of PW1

and asked the deceased to come, failing which she threatened him

with consequences. Later, A1 and A2 approached PW1 and on one

occasion threatened to kill the deceased if he does not stop his

illegal contacts with PW3. Though PW1 informed the deceased

about the same, he did not heed to his words.

15) On 22.01.2008, after having dinner, PW1, his wife and PW2

slept in their house. At about 3.00 A.M., PW1 woke up and

noticed his son [deceased] and bicycle missing from the house. On

suspicion, he along with his wife and PW2 went to the house of

PW3 and found PW3 with injuries. When enquired, PW3 replied

stating that A1 and A2 beat the deceased with a pestle and took

the deceased away. At that point of time, one Raj Kumar, after

parking his lorry in a petrol bunk came in opposite direction to

PW1. While they were talking on the road, they heard some cries

from the back side of Nandikotkur Court. They noticed A1 beating

the deceased with a pestle while A2 caught hold of the deceased.

On seeing the same, PW1, PW2 and others raised cries, pursuant

to which, the accused ran away, leaving the deceased.

16) PW1 was cross-examined in length, wherein he admits that

the distance between their house and the house of Lakshmi [PW3]

is about one kilometer and that Lakshmi [PW3] was living alone

with her children. He further admits that, earlier to the date of

incident, there was a jatra, and as such, suspected the deceased

going to the house of PW3, when he was not found in their house

in early hours. It was further elicited in the cross-examination

that, PW3 was found with bleeding injuries, but she was talking.

According to PW1, A1 and A2 saw PW3 and deceased together in

his house and, as such, they beat him with a pestle. He further

admits that, there are 10 to 15 houses in between the house of

PW3 and the place where the deceased was beaten. The area

where the house of PW3 and the place where the deceased was

beaten is Neelishikari Colony and there are more than 60

Neelishikari families in that area. He further admits that some of

the Neelishikari people saw the dead body.

17) From the evidence of this witness, it shows that the distance

between their house and the house of PW3 is about one kilometer.

If the distance between the house of PW1 and PW3 is about one

kilometer and in the absence of any material to show as to how

they went to the house of PW3, it is strange to believe that the

accused would be beating the deceased till the arrival of PW1 and

PW2 at the said place. Be that as it may, PW3 who is said to have

informed PW1 about A1 and A2 taking the deceased did not

support the prosecution case. Further, it is difficult to believe that

A1 and A2 would have assaulted PW3 causing bleeding injuries.

Even assuming it to be so, there is no evidence to show as to the

time when PW3 was assaulted, and when the deceased was taken

away by A1 and A2 from the company of PW3.

18) The evidence of PW2, who is the son of PW1 and brother of

the deceased, toes in line with the evidence of PW1 on all material

aspects. Hence, it may not be necessary to refer to the evidence of

PW2.

19) Therefore, from the evidence available on record, more

particularly the evidence of PW1, the deceased was missing from

the house by 3.00 A.M. The distance between the house of PW1

and PW3 is about one kilometer, which should have taken some

time for PW1 to travel a distance of one kilometer. Neither PW1

nor PW2 in their evidence deposed as to how they went to the

house of PW3. According to PW1, on a suspicion that deceased

must have gone to the house of PW3, went to the said house. He

does not say as to how and in what manner they went to the

house of PW3. Assuming it to be by way of walk, it must have

taken considerable time to cover a distance of one kilometer.

Though, PW3 is said to have informed to PW1 and PW2 about the

assaults but she did not support the prosecution case and was

treated hostile by the prosecution. Therefore, there is no evidence

as to when A1 and A2 took the deceased with them, whether it

was immediately prior to the arrival of PW1 or PW2 or sometime

prior to receiving the said information.

20) PW1 and PW2 claim to have gone in search of the deceased

and on the way they met a third person with whom they discussed

the issue. At that time, they heard some sound and when they

went behind the bushes, noticed A1 assaulting the deceased,

while A2 caught hold of the hands of the deceased. This version,

in our view, appears to be highly suspicious for the reason that,

A1 and A2 would not have been beating the deceased till the

arrival of PW1 and PW2 or till PW1 and PW2 heard the sound. If

that was so, there should have been number of injuries on the

body, which is not so. Probably for this reason, there was a delay

of nearly six hours in lodging the report. As observed by the

learned Sessions Judge, PW3 would have been the best person to

speak about the incident in question, but she did not support the

prosecution case.

21) Further, PW4 who came into contact with PW1 and PW2

while searching the deceased, did not support the prosecution

case. On the other hand, his version is that, he came to know

about the incident at about 10.00 A.M., when he visited the Union

Office.

22) At this stage, it would be appropriate to refer to the evidence

of PW10 -the investigating officer who registered the case.

According to him, an oral statement was made at 10.00 A.M., and

the same was reduced into writing by him. He further admits that,

though, in Ex.P1, PW1 stated that he woke up by 3.00 A.M., but

there were corrections in the copy of the First Information Report

supplied to the accused. According to him, initially it was drafted

at 4.00 clock and thereafter it was altered to 3.00 clock. In the

First Information Report, there is no reference to PW4 or any other

person meeting PW1 and PW2 while they were searching the

deceased.

23) In Chaman Lal v. The State Of Himachal Pradesh1, the

Hon'ble Supreme Court held as under:-

9.1 In the case of Babu v. State of Kerala2, this Court had reiterated the principles to be followed in an appeal against acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing

AIR 2021 SC 46 ; 2020 (13 ) SCALE 539

(2010) 9 SCC 189)

with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v.

Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010) 2 SCC 445)".

16. In Ghurey Lal v. State of U.P.3, this Court reiterated the said view, observing that, the appellate court while dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.

(2008) 10 SCC 450

In State of Rajasthan v. Naresh4, the Hon'ble Court again examined the earlier judgments of this Court and laid down that:

(SCC p. 374, para 20) "20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused."

24) Further, the Hon'ble Supreme Court in State of Rajasthan

v. Raja Ram5, held as under:

"7. There is no embargo on the appellate court reviewing the evidence upon which an order of 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. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re- appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. {See Bhagwan Singh v. State of M.P.}6. The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of

(2009) 9 SCC 368

(2003) 8 SCC 180

(2002) 4 SCC 85

Maharashtra7, Ramesh Babulal Doshi v. State of Gujarat8, and Jaswant Singh v. State of Haryana9."

25) In view of the inconsistencies and contradictions in the

evidence of the two witnesses vis-à-vis the medical evidence and

the material alterations in the First Information Report, we hold

that the Court below was right in acquitting the accused which

warrants no interference by this court.

26) Accordingly, the Appeal is dismissed confirming the

Judgment dated 31.05.2011 in S.C. No. 212 of 2009 on the file of

the Principal Sessions Judge at Kurnool.

27) Consequently, miscellaneous petitions, if any, pending shall

stand closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR

_______________________________ JUSTICE B. KRISHNA MOHAN Date: 28.07.2021 SM...