IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1130 OF 2000 Between: Manam Kondaiah ..... Petitioner AND Nakka Hazarathaiah & 25 others ..... Accused/Respondents The Court made the following: ORDER: The Criminal Revision Case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 21.06.2000, in Sessions Case No.154 of 1994, on the file of the learned I Additional Sessions Judge, Nellore, whereunder and whereby, Accused Nos.1 to 8, 10 to 25 were found not guilty of the offence punishable under Section 148 of the Indian Penal Code, 1860 (for short, “I.P.C.”); Accused Nos.1, 2, 4, 6 and 7 were found not guilty of the offence punishable under Section 302 I.P.C.; and Accused Nos.3, 5, 8 and 10 to 25 were found not guilty of the offence punishable under Section 302 read with 149 I.P.C. 2. Brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: All the accused and Manam Seshaiah (hereinafter referred to as “deceased”) are residents of Veguru Village, within the limits of Kovur Police Station. On 29.01.1992 at about 8.00 a.m., all the accused formed themselves into an unlawful assembly armed with deadly weapons like axes, rods and sticks with a common object of killing the deceased, certainly met the deceased near the tea bunk of one Mastanaiah and surrounded him while he was going along with P.Ws.1 and 2, who are also the residents of the same village. The accused, having the object of killing the deceased, chased him and then, all of them shouted that the deceased should be killed and so saying, Accused No.7 beat the deceased with a stick, Accused No.1 dealt a blow with an axe below the left knee of the deceased, Accused Nos.2 and 6 beat with iron rods on both the hands of the deceased, Accused No.4 beat with iron rod on the head of the deceased and the other accused also beat the deceased indiscriminately. As a result, the deceased received injuries and fell unconscious. Thereafter, the accused left the place. The incident was witnessed by P.Ws.1 to 7. Immediately, the deceased was taken to the hospital at Kovur for necessary medical treatment. Thereafter, the deceased was taken to the Police Station at Kovur and at about 11.30 a.m., on the same day, the deceased regained consciousness and gave a statement about the incident to P.W.16-Head Constable of Kovur Police Station. P.W.16 registered a case in Crime No.12 of 1992 and investigated into. Then, the deceased was referred to the Head Quarters Hospital, Nellore, for necessary treatment. But, on that day, the deceased was succumbed to injuries. Later, on necessary information, P.W.16 went to the Government Hospital, Nellore, and recorded the statement of P.W.15-Constable about the matter and on that basis, the Sections of law were altered to Sections 147, 148, 302 read with 149 I.P.C. Later, further investigation was done by P.W.18-the Inspector of Police, Kovur Police Station. During the course of investigation, P.W.18 conducted inquest on the dead body of the deceased in the Government Hospital, Nellore, in the presence of P.W.12, Thanneru Sivanarayana and Yenamala Audiseshaiah and opined that the deceased died due to injuries sustained by him and he also seized the blood stained clothes of the deceased and preserved for chemical examination. Thereafter, the dead body was subjected to Post-Mortem examination. P.W.14, doctor who conducted Post-Mortem examination on the dead body of the deceased, opined that the deceased died as a result of injuries sustained by him. After completion of the investigation, P.W.18 filed the charge sheet against Accused Nos.1, 2, 4, 6 and 7 for the offences punishable under Sections 148 and 302 I.P.C. and against other accused for the offences punishable under Sections 148 and 302 read with 149 I.P.C. 3. When the charges under Sections 148 and 302 I.P.C. against Accused Nos.1, 2, 4, 6 and 7 and against other accused under Sections 148 and 302 read with 149 I.P.C. were framed, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 19 and got marked Exs.P1 to P12 besides case properties M.Os.1 to 5. 5. After closure of the 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. They denied the same. On behalf of the accused, D.Ws.1 and 2 were examined and Exs.D1 to D12 were marked. 6. The trial Court, upon appreciation of evidence on record, came to the conclusion that the prosecution failed to prove its case beyond all reasonable doubt and accordingly acquitted the accused. Challenging the same, the present Criminal Revision Case is filed. 7. Now the point for determination is whether the judgment of the trial Court is correct, legal and proper? 8. The learned counsel appearing for the petitioner contended that P.Ws.1 to 7 were the eye witnesses to the incident; that it is very clear that Accused Nos.1, 2, 4, 6 and 7 actually participated in the commission of offence and caused injuries to the deceased resulting his death; that whereas, the other accused surrounded the deceased with a common object to eliminate the deceased; that Ex.P9-statement of the deceased, which was recorded by P.W.16, is very clear that the accused are the assailants of the deceased; that there is no other reason to disbelieve the contents in Ex.P9; that simply because it is recorded by P.W.16, who is a Head Constable, it does not mean that it should not be accepted, and hence, he prays to set aside the order of acquittal. 9. The case against Accused Nos.2, 6 to 8, 14, 15 and 21 is dismissed for default, as the process has not been taken. 10. The revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be illegal or incorrect or improper, normally this Court would not interfere with the same. This Court exercising the powers under Section 397 and 401 Cr.P.C. cannot sit over as if in an appeal so as to reappreciate the evidence and come to a different conclusion than the one reached by the trial Court. 11. There cannot be any dispute that the accused is presumed to be innocent, unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons to interfere with the judgment, normally this Court would not interfere with the same. 12. The death of the deceased is not in dispute. P.W.14, who conducted Post-Mortem examination on the dead body of the deceased, clearly opined that the deceased died as a result of injuries sustained by him. Ex.P8-Post-Mortem Certificate, dated 30.01.1992, given by P.W.14, would clearly go to show the nature of injuries sustained by the deceased. Therefore, the homicidal death of the deceased is established beyond all reasonable doubt. 13. The case rests upon the evidence of P.Ws.2, 5, 6 and 8 and Ex.P9-Statement of the deceased, dated 29.01.1992, recorded by P.W.16. 14. The evidence of P.W.6, who was a coolie, would clearly go to show that none of the other witnesses were present at the scene of occurrence. P.W.11 gives an altogether different version regarding the incident which disproves the evidence testified by P.Ws.2, 5, 6, 8 and 9. P.Ws.2, 5 and 9 stated in Sessions Case No.385 of 1994, on the file of the learned Assistant Sessions Judge, Kovur, that the incident had occurred in the village of Kovur village. Therefore, their evidence that they witnessed the incident is totally unbelievable. 15. Coming to the evidence of P.W.2, the earlier statement as in Ex.D2 would clearly go to show that due to fear, he ran towards Harijanwada and returned to the village after two hours. If that is to be accepted, it is clear that he did not see the incident which had taken place. There is no scope or possibility for him to witness the incident. Therefore, the trial Court rightly believed his evidence. 16. Similarly, the evidence of P.W.5 would go to show that as per Ex.D4, there was no scope or possibility for witnessing the incident that the accused allegedly attacked the deceased. 17. Coming to the evidence of P.W.8, her statement in Court is improvement because she did not state what was deposed by her when she was examined under Section 161 Cr.P.C. by the police. Therefore, the trial Court has not placed any reliance on the evidence of P.W.8. 18. Coming to the evidence of P.W.9, the statement of this witness which is the deposition in Sessions Case No.385 of 1994, on the file of the learned Assistant Sessions Judge, Kovur, would clearly go to show that while he was returning to Harijanwada, he came to know that the deceased was murdered. That shows he was not an eye witness to the incident. Whereas, P.W.11 has given altogether a different version regarding the incident, whose evidence would go to show that about 25 to 30 persons in each group participated in the rioting. His evidence would clearly go to show that the incident of killing the deceased would have taken place in a different manner at about 7.00 a.m. or 8.00 a.m. Therefore, the trial Court found him that he purposefully suppressed certain real facts and developed a new story for the reasons best known to him, and hence, the trial Court has not given any reliance on the evidence of this witness. 19. The only evidence which remains on record is the statement of the deceased which was recorded by P.W.16, under Ex.P9, dated 29.01.1992, which comes within the four corners within the sub-sections of the Indian Evidence Act, 1872. A statement made by a person, either written or verbal, as to the cause of the death or any one of the circumstances resulting in his death in case in which the death of that person comes in question is admissible in evidence under Section 31 (2) of the Indian Evidence Act, 1872. If the dying declaration is found to be true, trustworthy and reliable and not an outcome of tutoring or prompting by any of the relatives of the deceased, then certainly, it can be a sole basis for convicting the accused. 20. On this aspect, it is pertinent to refer to a decision reported in Khushal Rao v. State of Bombay[1], wherein it is held thus: “Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.” Bearing the above principles in mind, it is to be seen whether the statement of deceased is true, trustworthy and reliable. 21. Ex.P9-the statement of the deceased, dated 29.01.1992, was recorded by P.W.16-the Head Constable at about 11.30 a.m. It is an admitted fact that the Mandal Revenue Office, Police Station and the Principal District Munsif Court and Subordinate Judge’s Court are situated in the same compound. The Munsif Magistrate Court is situated at a distance of 20 yards from Police Station. P.W.16 did not take any steps to get the statement of the deceased recorded by the Presiding Officer of the Court by taking him into the Court. No doubt, the rejection of the statement of the deceased mechanically recorded by the police officials is not warranted, but at the same time, it has to be seen whether there was a scope or possibility for the deceased to give a statement. 22. The earliest version of the incident would go to show that the deceased lost his consciousness and within 5 or 10 minutes thereafter, the police arrived to the scene of occurrence. P.W.13-the Medical Officer did not made any endorsement on Ex.P7-Wound Certificate, dated 29.01.1992, that the patient was conscious. Therefore, there is no scope or possibility for P.W.16 to record the statement from the deceased in view of the fact that he lost his consciousness. P.W.16-the Head Constable was directed to register a case. He must have obtained the thumb impression of the deceased on the statement and later, it was utilized for the purpose of this case. Therefore, in such circumstances, the trial Court rightly rejected the contents in Ex.P9. The findings of fact arrived at by the trial Court is on proper appreciation of evidence on record. The said appreciation of evidence on record is not shown to be perverse or contrary to law. None of the finding is shown to be illegal or incorrect or improper. In the absence of any such perverse finding, the powers under Sections 397 and 401 Cr.P.C. cannot be exercised. Hence, the Criminal Revision Petition is devoid of merit and is liable to be dismissed. 23. Accordingly, the Criminal Revision Case is dismissed confirming the judgment, dated 21.06.2000, in Sessions Case No.154 of 1994, on the file of the learned I Additional Sessions Judge, Nellore. _____________ (K.C.BHANU, J) Date: 24th November, 2009. KL [1] A.I.R. 1958 S.C. 22