THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1224 of 2005 & CRIMINAL REVISION CASE No.454 of 2006 -10-2014 CRIMINAL APPEAL No.1224 of 2005 BETWEEN:
The Public Prosecutor, High Court of A.P., Hyderabad.
AND 1. Bandari Sairam Goud and others.
AND …..Appellant …..Respondents CRIMINAL REVISION CASE No.454 of 2006 BETWEEN:
B. Narsimha Goud …..Appellant AND 1. Bandari Sairam Goud and others.
…..Respondents THIS COURT MADE THE FOLLOWING ORDER:
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1224 of 2005 & CRIMINAL REVISION CASE No.454 of 2006 COMMON JUDGMENT:
1. The present appeal and the revision are arising out of the one and the same judgment and therefore, they are heard together and being disposed of by this common judgment.
2. Crl.A.No.1224 of 2005 is filed by the State challenging the judgment of the VII Additional District & Sessions Jude (Fast Track Court), Nizamabad in Crl.A.No.40 of 2001 dated 24.11.2003 whereby the learned Judge set aside the conviction and sentence imposed on accused Nos.1 to 7 by the Assistant Sessions Judge at Bodhan in S.C.No.289 of 1999, vide judgment dated 11.5.2001 for the offences under Sections 147, 148 and 307 IPC, and acquitted them for the said charges. Crl.R.C.No.454 of 2006 is filed by the de facto complainant-P.W.1 challenging the above judgment in Crl.A.No.40 of 2001.
3. The brief facts of the case as projected by the prosecution before the trial court are as under:
P.W.1 is the son of P.W.3. P.W.2 is the brother of P.W.3. On 29.9.1998, P.W.3 along with other toddy caste persons participated in an auction held at Neelakanteshwara temple for “Kallu Mamulu” and became highest bidder. On that, A.1 went to Yellareddy village on Suzuki motorcycle and brought his brothers-in-law, who are A.3 to A.5 and his friends and made them to wait outside the temple. After 4.30 p.m., A.3 to A.5 together attacked P.W.2 with knives and stabbed him. On seeing it, P.W.3 intervened and then A.1 and A.2 beat P.W.3 with rods on his head. When P.W.4 intervened, A.6 & A.7 beat him with punches. When P.Ws.5 to 7 and others gathered at the scene, the accused fled away. On the complaint lodged by P.W.1 on the same day under Ex.P.1, a case was registered and after due investigation, charge sheet was laid against all the accused.
4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 11 and got marked Exs.P.1 to P.13 and M.Os.1 to 6. On behalf of defence, no oral or documentary evidence was adduced.
5. The trial Court on appreciation of evidence brought on record more particularly, on the basis of the evidence of P.Ws.2 to 4, who are the injured persons, convicted the accused for the offences under Sections 147, 148 and 307 IPC and sentenced them as follows:
1) A1 to A7 were convicted and sentenced to undergo rigorous imprisonment for one year each for the offence under Section 147 IPC.
2) Further, they were convicted and sentenced to undergo rigorous imprisonment for one year and six months each for the offence under Section 148 IPC;
3) The accused were also convicted and sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs.1,000/- each, in default, to undergo simple imprisonment for three months each for the offence under Section 307 IPC.
On appeal preferred by the accused, the lower appellate Court set aside the conviction and sentence imposed by the trial Court for the above offences and acquitted the accused. The lower appellate Court observed that the evidence of P.W.1, P.Ws.5 to 7-the alleged eyewitnesses, and the injured persons i.e. P.Ws.2 to 4 does not inspire confidence inasmuch as their evidence is inconsistent on material aspects and that they did not specifically state as to the nature of the weapons, as to the particulars of the accused, who armed with such weapons and as to the specific overt acts of the accused as well as the nature of injuries inflicted by the accused and that the evidence of P.Ws.2 to 4 and 5 to 7 is not supported by medical evidence.
6. Now, the point for consideration is whether the prosecution was able to bring home the guilt of the accused beyond all reasonable doubt and whether the lower appellate Court was right in acquitting the accused of the charges.
7. The learned Additional Public Prosecutor contended that the lower appellate Court erred in reversing the judgment of the trial Court since the evidence of injured persons i.e. P.Ws.2 to 4 establishes the case of the prosecution and further the lower appellate Court did not appreciate the fact that the medical evidence is corroborated with the evidence of P.Ws.2 to 4 and that the evidence of eyewitnesses to the occurrence i.e. P.Ws.5 to 7 is in complete corroboration with the evidence of injured persons- P.Ws.2 to 4.
8. The learned Counsel appearing on behalf of the revision petitioner- de facto complainant contended that the trial Court has rightly convicted the respondents-accused 1 to 7 with cogent reasons, but the lower appellate Court, without there being any contrary evidence, set aside the said findings of the trial Court. Further the lower Court is not justified in acquitting the accused when there is cogent evidence of the injured persons coupled with medical evidence.
9. On the other hand, the learned Counsel appearing on behalf of accused-respondents contended that the evidence of P.W.1 is inconsistent with the contents of complaint given by him in Ex.P.1 and therefore, the entire case of prosecution throws a doubt as to the occurrence. Further the medical evidence is contrary to the evidence adduced by the prosecution and therefore, the lower appellate Court rightly took the same into consideration and acquitted the accused by extending benefit of doubt.
10. This Court heard the arguments and perused the material available on record. Before going into the merits of the case, it is relevant to examine the evidence of the prosecution witnesses.
11. P.W.1-B. Narasimha Goud deposed as follows:
On 29.9.1998 at about 2.30 p.m., there was a meeting for toddy auction at Neelakanteshwar temple, Yellareddy. His father has became successful bidder in the auction for Rs.1,20,000/-. In the middle of the auction, A1 went away to his village on Suzuki bike and brought all the accused and made them to sit outside the temple. The accused came with knives and rods. A1 came again and sat in the auction. Meanwhile, A3 beat his uncle (L.W.2) with hands and stabbed him with a knife. A4 and A5 stabbed L.W.2 with knives. On seeing it, his father (L.W.3) went there and then, A1 and A2 beat L.W.3 with rods on his back and head. Meanwhile, L.W.4 went there and then, A6 and A7 beat him with punch on the left side of his eye and also other parts of the body. All the three persons received bleeding injuries. The accused threatened the elders of the meeting that they would beat them, if any interfere. Then, the accused went away. P.W.1 went to the police station and gave a complaint.
12. P.W.2-B. Laxma Goud deposed as follows:
P.W.1 is his elder brother’s son. On the date of incident, there was a meeting at Neelakanteswara temple for auction of toddy. His brother summoned him to come. Then, he came there and sat outside the temple while meeting was going on. His brother asked him about money. He stated to him that he brought the money. Meanwhile, A1 came out from the temple and went Yellareddy on a motor cycle and returned after ten minutes. In the meantime, A3 to A5 came and fell on him and beat him with punches as they armed with punches. They beat him on his face, mouth and on his back, and his tooth was also broken in the incident. Meanwhile, LW.3 came there and A1 beat him with iron rod on his head.
L.W.4 came there and A6 and A7 beat him with punches on his left eye and on his head and back etc. Meanwhile elders viz., Raja Goud and Ashok Goud came there and the accused threatened them that they would kill them, if they interfere.
13. P.W.3-B. Nagaratnam Goud deposed as follows:
P.W.1 is his son. P.W.2 is his younger brother. He knew all the accused. On the date of incident, they gathered at Neelakanteshwara temple for toddy auction. In the said auction, he and the accused participated upto Rs.1,20,000/- and then, the auction was stopped by A1. A1 went to the village and he came after half an hour. Then, they started auction. Meanwhile, they heard some galata outside the temple. He rushed there and found A2 to A5 beating P.W.2 with punches and also rods and when he went to rescue, A1 beat him with rod on his head. A2 beat him with stone on his back. L.W.4-Pandari Goud came there. Then, A6 and A7 beat him with hands and rods. At that time, Ashok Goud and Raja Patel intervened. Then, the accused threatened them that they would kill them if they interfere.
14. P.W.4-B. Pandari Goud deposed as follows:
He knew P.Ws.1 to 3 and the accused persons. On the date of incident, he went to the meeting of toddy auction held at Neelakanteshwar temple in Yellareddy. After some time, A1 went to the village and brought the other accused. P.W.1 bid the auction for a sum of Rs.1,20,000/-. After some time, Eshwar Goud and his brothers attacked P.W.2, A3 and A4 beat P.W.2 with hands and A5 stabbed P.W.2 with knife on his back. Meanwhile, P.W.3 intervened. Then, A1 beat P.W.3 with iron rod on his head and on back and A2 beat P.W.3 with hands. When he intervened, A6 and A7 beat him on his left side eye with punches. Meanwhile, Raja Patel and Ashok Goud came there. Then, the accused threatened them that they would kill them, if they interfere.
15. P.W.5- turned hostile. P.W.6-K. Ashok Goud deposed as follows:
He knew P.Ws.1 to 5. On the date of incident, there was a meeting held at Neelakanteshwara temple in between the society members for toddy auction. The auction was conducted for some time. A1 stopped the action for some time and went outside and brought the other accused. They attacked P.W.2, who sat outside the temple. On knowing of it, P.W.3 came out and then, the accused attacked him. The accused also attacked P.W.4. A1 beat P.W.3. A3, A4 and A5 beat P.W.2 with stones. A1 and A2 beat P.W.3 with stones and hands. All the accused beat P.W.4. The accused threatened him (P.W.6).
16. P.W.7 turned hostile. P.W.8 is a witness to Ex.P3 scene and seizure panchanama. P.W.9 is the witness to Ex.P4 seizure panchanama of blood clothes.
17. P.W.10 examined P.W.2 and found the following injuries:
1) Lacerated wound on left temporal region about ½ x ½ x ¼ cms.,
2) Lacerated wound on the back of chest on both right and left side approximately ½ x ½ x ¼ cms., in size;
3) Pain and tenderness on low back;
4) Pain and tenderness over right side chest;
5) Abrasion on the right knee about 3 x ½ cms., in size;
6) Lacerated wound on the upper limb about 3 x 2 x 1 cm., in size;
7) Broken tooth of upper central incisor.
All the above injuries were simple in nature and might have caused by blunt object. The 7th injury was grievous in nature.
18. P.W.10 examined P.W.3 at about 5.30 p.m., and found the following injuries:
1. Punctured on the left side of the face was about ½ x ½ x ¼ cms., in size;
2. Punctured wound on the bridge of the nose was about ½ x ½ x ¼ cms., in size;
3. Abrasion on the right side chest was about 3 x 2 cms., in size;
4. Lacerated wound on the right leg was about ½ x ¼ x ¼ cms., in size;
5. Lacerated wound on the right side of the face ¼ x ¼ x ¼ cms., in size;
6. Pain and tenderness on the back of chest.
All the above injuries were simple in nature and might have caused by a blunt object.
19. P.W.10 also examined P.W.4 and found the following injuries:
1. Lacerated wound on the outer canthus of the left eye was about 1 x ½ x ¼ cms., in size;
2. Swelling and contused on upper eye lid on the left side;
3. Lacerated wound on occiput was about 2 x ½ x ¼ cms., in size;
4. Pain and tenderness on both hands.
All the above injuries were simple in nature.
20. P.W.11 is the police official.
21. On appreciation of the above evidence, the trial Court convicted the accused for the offences under Sections 147, 148 and 307 IPC.
REASONS FOR CONVICTION BY THE TRIAL COURT:
1) From the evidence on record, it is apparent that while the auction was going on A1 intentionally stopped the auction and went outside and brought the other accused and asked them to sit outside and again, A1 entered into the temple and in the meanwhile, the galata started outside and the accused beat P.W.2 and on hearing of it, P.Ws.3 & 4 went outside and all the accused beat P.Ws.2 to 4 and when the other witnesses intervened, the accused threatened them to kill.
2) It is nothing but A1’s intention and his supporters to kill P.Ws.2 to 4 or otherwise to attack them or whatever may be, they waited and gathered and formed into an unlawful assembly with an intention either to kill or to beat P.Ws.2 to 4. From this, it is apparent that there is a motive for the accused to commit the offence.
3) The injuries received by P.Ws.2 to 4 establish the case of the prosecution.
22. Aggrieved by the said conviction and sentence, the accused preferred an appeal before the lower Appellate Court and on re- appreciation of the evidence, the lower appellate Court acquitted the accused.
REASONS FOR ACQUITTAL BY THE LOWER APPELLATE COURT:
1) The evidence of P.W.1 to 7 does not inspire confidence inasmuch as their evidence is inconsistent on material aspects i.e., as to the specific overt acts of the accused and as to nature of the weapons armed by each of the accused.
2) The evidence of P.Ws.1 to 7 has also not been corroborated by the medical evidence.
3) Further, injured witnesses viz., P.Ws.2 to 4 did not depose that the accused attacked them with an intention to kill them;
4) The medical evidence does not show any fatal injuries on any vital part;
23. CONCLUSION BY THIS COURT:
P.W.1 is the person who set the law into motion by lodging Ex.P.1 complaint. He is alleged to have witnessed the occurrence. Though in the chief-examination, he deposed that he is an eyewitness, in the cross-
examination, he himself admitted that the incident took place outside the compound wall of Neela Kanteswara Temple and that he was inside the compound wall of temple. Therefore, he cannot be said to be a direct eye witness to the occurrence. Further, in Ex.P.1-complaint, P.W.1 stated that A.3 to A.5 armed with knives, stabbed P.W.2 and A.1 & A.2 beat P.W.3 with iron rods on his head while A.6 & A.7 beat P.W.4 with punches whereas in his evidence as P.W.1, he deposed that A.3 beat P.W.2 with hands. In view of the self-contradictions, it is not safe to attach much credence to his testimony.
24. P.W.2 in his chief-examination testified that A.3 to A.5 beat him with punches on his face, mouth and back and his tooth was also broken whereas neither in Ex.P.1 complaint nor in the evidence of P.W.1, it is alleged that A.3 to A.5 beat P.W.2 with punches. Further this version of
P.W.2 is also not corroborated by the other injured and eyewitnesses.
P.W.4 deposed that A.3 and A.4 beat P.W.2 with hands whereas P.W.3 deposed that A.2 to A.5 beat P.W.2 with punches and also rods. P.W.4 deposed that A.1 beat P.W.3 with iron rod and A.2 beat P.W.3 with hands whereas P.W.3 deposed that A1 beat him with rod and A2 beat him with stone on his back. Apart from that, P.W.3 testified that A.1 beat him with an iron rod on his head whereas, the medical evidence of P.W.10 coupled with Ex.P.7 wound certificate, does not show such an injury on the head of P.W.3. Regarding the lacerated injury received by P.W.4, P.W.10- medical officer deposed that these injuries are possible by blunt object whereas these injuries are alleged to have been caused by punches. In view of the self-contradictions and the inconsistences with that of the medical evidence, it is not safe to rely upon the evidence of P.Ws.1 to 4.
25. Now, coming to the evidence of P.Ws.5 and 7, they did not support the case of the prosecution and thereby, they were turned hostile.
26. On a careful analysis of the evidence and findings of both the Courts below, this Court is of the view that the findings of the lower appellate Court are based on sound footing and cogent reasons.
27. Further, it is settled proposition that the jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitations that no interference is to be made with the order of acquittal unless the approach made by the Court below to the consideration of the evidence in the case is vitiated by some manifest illegality, or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse.
28. Apart from that, the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case i.e., one pointing out the guilt of the accused and the other pointing out his innocence, the latter view which is favourable to the accused should be adopted.
29. In the instant case, on a careful analysis of the entire evidence and findings of the both Courts below, this Court feels that the lower appellate Court has rightly come to the conclusion that the prosecution could not be able to bring home the guilt of the accused beyond all reasonable doubt for the offence under Sections 147, 148 and 307 IPC, and acquitted the accused.
30. In view of the foregoing discussion on all factual and legal aspects, this Court is not inclined to interfere with the judgment impugned in this appeal as well as the revision case and hence, both the cases are liable to be dismissed.
31. Accordingly, the Criminal Appeal and Crl.R.C. are dismissed. Consequently, the miscellaneous petitions pending, if any, shall stand dismissed.
Justice Raja Elango Dated: 18.10.2014 Nn.
THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.1224 of 2005 & CRIMINAL REVISION CASE No.454 of 2006 18.10.2014 Nn.