THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE K.C. BHANU CRIMINAL APPEAL NO: 430 of 2007 JUDGMENT: (per Hon’ble Sri Justice A. Gopal Reddy) The State of A.P. represented by Public Prosecutor preferred this appeal against the judgment dated 11.11.2003 passed by the I Additional Sessions Judge, Nellore, in S.C.No.276 of 1999 whereby the accused Nos.1 to 6 were acquitted from the charges framed against them under Sections 148, 302 r/w 109 IPC. The substance of the charge against the accused is that on 09.02.1998 at about 6 p.m., while Chintala Manohar (hereinafter referred to as ‘the deceased’) reached Nakkala Kaluva bund, near the fields of Lingareddy Venureddy, all the accused formed themselves into an unlawful assembly armed with deadly weapons like axes, sickles etc., with a common object to kill the deceased, and attacked on him. When the deceased tried to escape, all the accused chased and beat him indiscriminately, and caused multiple injuries to his vital organs, as a result, the deceased died on the spot. The prosecution story as unfolded during the course of trial is as under. A.1 to A.6 are the residents of Gudlurivaripalem and they are inter related. The deceased and PWs.1 and 2 are also residents of the same village. There were long standing disputes between PWs.1, 2, the deceased and the accused. With respect to “Sreeramanavami Utti Utsavam”, one Mannu Ramaiah, the younger brother of A.1 to A.3, was murdered and in that connection a case was registered against PWs.1 and 2, and the deceased. Then they left Gudlurivaripalem and settled at Padamati Naguladoruvu. About three months prior to the date of incident, the accused attacked PWs.1 and 2 with deadly weapons like sticks and knives at Gudlurivaripalem, but however they managed to escape. On 09.02.1998, PWs.1, 2 and the deceased went to Punjulurupadu village, purchased dry hay from PW.4 and got the hay loaded in the cart of PW.4. At about 5 p.m., the deceased left Punjulurupadu to Naguladoruvu for collecting green grass. At 6 p.m., PWs.1 and 2 left Punjulurupadu directing PW.4 to cart the hay to their village through Nadiguntapalem. When PWs.1 and 2 crossed Nakkala Kaluva area, they found the deceased proceeding 20 to 30 yards ahead of them carrying a bundle of green grass on his head and PWs.3 and 5 were also proceeding in front of PWs.1 and 2, but behind the deceased. While so, all the accused suddenly came out from the bushes and pounced upon the deceased. When the deceased threw away the grass bundle and ran into the fields situated on the eastern side of the Nakkala Kaluva Bund, all the accused chased him and bet him indiscriminately all over the body with deadly weapons. On receiving multiple injuries to his vital parts the deceased died on the spot. On seeing the injured deceased, A.1 declared him as dead. On seeing PWs.1 and 2 the accused decided to attack them, but however, they managed to escape, by running towards the village. They went to the house of the deceased and informed about the incident to PW.7, who is the wife of the deceased, and his father and mother. Then they went to the scene of occurrence carrying torch and lantern, and found the corpse of the deceased with injuries. At 10.30 p.m., they went to Mittapalem, met PW.12 and narrated him about the incident, and on his suggestion they went to police station and lodged Ex.P.1 complaint. Basing on the report, PW.13-Head constable registered a case against the accused in Crime No.5/1998 for the offences punishable under Sections 147, 148, 302 r/w 149 IPC and issued Ex.P.8-F.I.R. PW.15-the Inspector of Police took up investigation. He held inquest over the dead body of the deceased at 8. a.m. on 10.02.1998 in the presence of PWs.8 and 9 under Exs.P.3 and P.3(a)-Inquest reports, examined PWs.1, 2, 3, 5 & 7, and sent the dead body through PW.14 for postmortem examination. PW.11 conducted autopsy over the dead body of the deceased and issued Ex.P.7-P.M. report opining that the cause of death is shock due to multiple injuries to vital organs. PW.15- the C.I. of Police arrested the accused on 17.02.1998. On the confessional statement made by the accused, MOs.1 to 6 were recovered under Ex.P.4 confessional panchanama and Ex.P.5-seizure panchanama. Since A.1 sustained injury on his left hand index finger, he was sent to Primary Health Centre Muthukur for examination. PW.10-Doctor examined A.1 and found healed cut injury on the upper part of his left hand index finger, 1” in length, and issued Ex.P.6 wound certificate opining that the injury is simple in nature. After completion of investigation, and after receiving all the relevant reports, PW.15 filed charge sheet. The plea of the accused was one of total denial. To substantiate its case, the prosecution examined PWs.1 to 15 and marked Exs.P.1 to P.10 besides the case properties MOs.1 to 23. On behalf of the accused contradiction portions in 161 Cr.P.C. statement of the witnesses were marked as Exs.D.1 to D.11. The learned Sessions Judge, on appreciation of oral and documentary evidence, observed that PWs.1 and 2 are not the eyewitnesses to the occurrence and their evidence cannot be relied upon to prove the accused attacking the deceased. Further they failed to mention as to which accused dealt blows to the deceased. PW.6, to whom PWs.1 and 2 informed about the incident that the deceased was beaten, turned hostile. The evidence of PWs.3 and 5 do not support the evidence of PWs.1 and 2. In the absence of any report given by PWs.1 and 2 about the earlier incident, the prosecution failed to prove the motivation on the part of the accused. The evidence of PW.9 also discloses that except MOs.1 to 6 no other material objects were seized by PW.15, which falsifies the evidence of PW.15 to the effect that MOs.12 to 23 wearing apparels were seized from the accused. Observing so, the learned Sessions Judge acquitted the accused of all the charges. Sri Prahlada Reddy, learned Additional Public Prosecutor contends that PWs.1 and 2, who are the eyewitnesses to the incident, spoke about the attack made by the accused on the deceased. Merely because small discrepancies are there, their evidence cannot be brushed aside. The earlier statement of PW.1 recorded by the police itself is sufficient to prove the entire case. As per Ex.P.7, as many as 12 external injuries were found on the dead body of the deceased, and MOs.1 to 6 were recovered on the confessional statement of the accused. Further, the evidence of PW.7 also corroborated the evidence of PWs.1 and 2. Therefore, the learned trial Court is not justified in acquitting the accused merely on the ground that PWs.1, 2, 3, 5 and 12 were shown as accused in other cases. Sri M. Venkata Narayana, learned counsel for the accused while sustaining the acquittal order, contended that PWs.1 and 2 do not speak about PWs.3 and 5, and their evidence is contrary to the evidence of PWs.3 and 5. As per Exs.D.1 and D.3, the distance between PWs.1 and 2 and the deceased was shown as 200 yards on the bund and the same is in zigzag condition. Further there were bushes on either side of the bund. When PW.1 himself admitted that he cannot witness beyond 20 to 30 yards, it is impossible for him to witness the incident, which has taken place at a distance of 200 yards away from there. In Ex.P.1-report it is not stated that the information of attack was passed on to the parents of the deceased. As per the prosecution evidence the deceased was beaten with sticks and iron rods, but however, no injuries as such were found on the dead body of the deceased, inflicted with sticks and iron rods. PWs.1, 2, 3 & 5 are the followers of PW.4, and therefore, at the instance of PW.4 the accused have been falsely implicated in a case of this nature. In view of the above rival contentions, the points that arise for consideration are whether the prosecution is able to bring home the guilt of the accused beyond all reasonable doubt; and whether the prosecution is able to establish strong and compelling circumstances to reverse the order of acquittal to convict the accused for the offences with which they stood charged. PW.1, who was projected as the eyewitness stated that there was a fighting between the two groups in connection with Sreeramanavami Utti Utsavam and one Mannaru Ramaiah was killed, and a case was registered in connection with his murder against PW.1 and his elder brother, namely, Mungara Ragaiah (PW.2), the deceased, Mungara Sreenivasulu, Mungara Seshaiah and Chinkala Obaiah, the father of the deceased. Afraid of the accused group party, they left the village and settled at Padamati Naguladoruvu village. Mannaru Ramaiah was the younger brother of A.1 to A.3. Three months before the death of the deceased, himself and PW.2 went to Gudlurivaripalem for purchasing dry hay for fodder. Then A.1 to A.3, A.5 and A.6 came upon them armed with sticks and knives, and therefore, they ran away. On the date of incident, himself, PW.2 and the deceased went to Punjulurupadu village for purchasing dry hay. After purchasing dry have they loaded the hay on the cart belonging to PW.4 and the deceased left for Padamati Naguladoruvu village at about 5 p.m. stating that on the way he would collect green grass. One hour later, they proceeded from Punjulurupadu village to go to Padamati Naguladoruvu village by cross-way. When they crossed Nakkala Kaluva area, they found the deceased walking ahead of them keeping the green grass bundle on his head and they were proceeding on Nakkala Kaluva Bund at a distance of 20 to 30 yards. PWs.3 and 4 were proceeding in front of them and behind the deceased. Then all the accused came there armed with axes, knives and sticks from the bushes on the eastern side and on seeing them, the deceased threw the bundle and tried to escape. Meanwhile, the accused surrounded him and dealt blows on him with the weapons. Then A.1 declared the deceased died and on seeing PWs.1 and 2, A.1 uttered that “they should be attacked and killed (valla pani kooda choodandiraa). Then himself and PW.2 escaped from the place. He does not know whether PWs.1, 3, 5 are the followers of PW.12, and they belonged to Telugu Desam Party and the accused belonged to Congress party. He further admitted that himself, PW.2, father of the deceased, and PW.7 are happened to be accused 1 to 3 respectively in the earlier case for killing the younger brother of A.1 to A.3, which took place on 15.04.1993. One person, who was present in the police station drafted Ex.P.1 underneath the light on the police station building, but he does not know, who scribed Ex.P.1. At the time of drafting Ex.P.1 he stated that accused hacked the deceased with axes, knives and beat with sticks. The distance between the scene of offence and the police station was about 8 k.ms., and it was not mentioned in Ex.P.1 that the deceased was going at a distance of 20 to 30 yards from them. He could see the accused attacking the deceased from a distance of 20 to 30 yards only. PW.2 while supporting the evidence of PW.1 stated that about three months prior to the death of the deceased himself and PW.1 went to Gudlurivaripalem village where all the accused came upon them armed with sticks and knives and they ran away. About three years back on one day, himself his brother and the deceased went to Punjulurupadu village for purchasing dry hay and after purchasing hay from PW.4, the deceased left the place asking them to load the hay on the cart stating that he would collect green grass on the way. When himself and PW.1 were proceeding on Nakkala Kaluva Bund, the accused came there from the bushes. Then they found the deceased at a distance of 20 to 25 yards behind them. All the accused surrounded the deceased armed with knives, “katti karralu” and axes dealt blows on him, and uttered that the deceased died, and they should kill PW.1. Then he and PW.1 ran away from the scene of occurrence. PW.3 stated that the deceased was coming behind them carrying a bundle of green grass at a distance of two baras. Then the accused surrounded the deceased. Afraid of the situation they ran away. PW.4, who is related to PWs.1, 2 and the deceased, stated that on the date of incident, PWs.1, 2 and the deceased came to him and they wanted hay. Then he asked them to collect hay from hayrick yard. Till 3.30 p.m. on that day they prepared hay bundles. Then the deceased left the place stating that on the way he would collect green grass. By 5 p.m., PWs.1 and 2 completed the work of loading hay on his cart. PW.5 stated that himself and PW.3 were proceeding on Nakkala Kaluva Bund and the deceased was coming behind them. Then five persons came and detained the deceased and by raising cries they beat the deceased. When questioned by the Court he stated that they saw five culprits coming on the bund behind them. PW.6, did not support the case of prosecution and was declared hostile. He stated that PW.1 had not stated to him who beat the deceased. Then himself, PWs.1 and 2 Eswaraiah, Venkata Seshaiah and many others went to the field belonging to one Rama Subbareddy and found the dead body of the deceased with injuries. PW.7 is the wife of the deceased to whom PW.1 informed about the incident. PW.11-the Doctor, who conducted postmortem examination over the dead body of the deceased, found 12 incised injuries on the dead body of the deceased, and issued Ex.P.7-P.M. report opining that because of formation of rigor mortis all over the body, the death would have occurred 24 to 36 hours prior to the postmortem examination. The postmortem examination was conducted at 4 p.m. on 10.02.1998. PW.13 is the Head Constable at the relevant point of time. He stated that he registered the crime, but the report was not written in the police station premises. PW.15 is the Inspector of Police, who investigated into the crime. In his cross-examination he deposed that as per his investigation, after PWs.1 and 2 informed that the accused hacked the deceased, Pedipina Eswaraiah and Pedipina Venkata Seshaiah went to the scene of offence along with others with torch lights and found the dead body of the deceased. As seen from the evidence of PWs.1 and 2, the deceased was proceeding about 20 to 30 yards ahead of them and PWs.3 and 4 were proceeding in front of them but behind the deceased. But as per the evidence of PWs.3 and 5 the deceased was coming behind them, but not in front of them as stated by PW.1. The evidence of the Doctor shows that the death of the deceased occurred 24 to 36 hours prior to the incident, whereas the evidence of prosecution shows that the deceased was beaten at 6. p.m. on 9.02.1998 and the postmortem was conducted at 4 p.m. on the next day i.e., within 22 hours after the incident. PW.1 admitted that the distance between them and the deceased was 20 to 30 yards, but Exs.D.2 and D.3 show that the distance between the deceased and PWs.1 and 2 was about 200 yards. When PWs.1 and 2 admitted that they cannot see beyond 20 to 30 yards, it is impossible for them to witness the incident where it was surrounded by bushes on either side of the bund precisely as stated by them. Further as per the evidence of PW.1 the deceased was beaten with sticks and iron rods, but no such injuries were found on the deceased inflicted with sticks and iron rods as per the postmortem report. PWs.1 and 2 after reporting the matter to PW.7, the wife of the deceased, went to PW.12, who was their leader, and at his suggestion the complaint has been lodged in the police station at 1 a.m. The prosecution is also failed to establish the alleged motive on the part of the accused that PWs.1, 2, 3, 5, the deceased and another were accused and were facing trial for murder of younger brother of A.1 to A.3. As per the evidence of PWs.1 and 2, when they went to Gudlurivaripalem for purchasing dry hay, A.1 to A.3, A.5 and A.6 came upon them armed with sticks and axes, but no such complaint was lodged by them against the accused to substantiate that the accused developed grudge against them and trying to attack them, which they did previously, as stated by them. In the absence of any complaint and motive on the part of the accused, it is unsafe to believe the entire evidence of PWs.1, 2, 3 and 5 about their presence at the time of occurrence. The Supreme Court in Chandrappa v. State of Karnataka[1] after referring to its various earlier judgments, laid down five principles, which have to be bear in mind in an appeal against acquittal, which reads thus: (1) An appellate Court has full power to review, re-appreciate 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 emphasize 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 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 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. In the instant case, there are no substantial or compelling reasons to come to a conclusion that it is the accused, who committed murder of the deceased. In the absence of any substantial and compelling reasons pointed out by the prosecution that no other view is possible except the guilt of the accused, it is unsafe to rely upon the evidence of interested witnesses i.e., PWs.1 and 2, to hold that the accused are guilty of the charges framed against them for reversing the acquittal order. Accordingly, the Criminal Appeal is dismissed. ____________________ (A.GOPAL REDDY, J.) _____________ (K.C. BHANU, J.) 10th August, 2010 Js. [1] (2007) 4 SCC 415