IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRTIEETH DAY OF APRIL TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.A.Nos.216 & 1446 of 2004 & Crl.R.C.No.1038 of 2004 Crl.A.No.216 of 2004 Between:- G.C.Krishna Mandadi …Appellant A n d M.S.Varadarajulu and others …Respondents Crl.A.No.1446 of 2004 The Public Prosecutor, High Court of A.P., Hyderabad. …Appellant A n d M.S.Varadarajulu and others …Respondents A N D Crl.R.C.No.1038 of 2004 G.C.Krishna Mandadi …Appellant A n d M.S.Varadarajulu and others …Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Crl.A.Nos.216 & 1446 of 2004 & Crl.R.C.No.1038 of 2004 COMMON JUDGMENT: These two appeals and revision case arise out of the same judgment dated 30-09-2003 in Crl.A.No.2 of 2003, on the file of the I-Additional District and Sessions Judge, Chittoor, wherein respondents 1 to 6 herein i.e., A-1 to A-6 were found not guilty of the offences under Sections 341, 324 IPC and A-5 was found not guilty of the offence under Section 326 IPC and were acquitted thereof by setting aside the conviction and sentence recorded in the judgment dated 27-12-2002 in C.C.No.138 of 1998, on the file of the IV-Additional Judicial Magistrate of the First Class, Chittoor, whereunder A-1 to A-7 were sentenced to undergo simple imprisonment for three months each and pay a fine of Rs.300/- each for the offence under Section 324 IPC and they were sentenced to pay fine of Rs.200/- each for the offence under Section 341 IPC and A-5 was further sentenced to undergo simple imprisonment for six months and pay a fine of Rs.200/- for the offence under Section 326 IPC. 2. Crl.A.No.1446 of 2004 is filed by the State and Crl.A.No.216 of 2004 is filed by the de facto complainant, who also filed Crl.R.C.No.1038 of 2004, besides the appeal. As the three matters arise out of the same judgment and against the same parties, they are heard together and are being disposed of by this common judgment. 3. Arguments of the learned Additional Public Prosecutor representing the appellant-State and arguments of the learned counsel for the de facto complainant and the accused are heard. Perused the record. 4. The case of the prosecution, in brief, is as follows:- There are civil disputes between the complainant-P.W.1 and fathers of A-1 and A-4 and also between the complainant and A-2 and A-3 regarding lands and house sites. There were also disputes between the complainant and A-7 in connection with panchayat sarpanch elections. The complainant was successful in all the litigations and also in the election. A- 5 and A-6 are close associates of A-3. All the accused bore grudge against the complainant and were waiting for an opportunity to wreak vengeance against him. About ten days prior to the date of incident, disputes arose between the complainant and A-3 regarding ownership of green manure trees. On 27-01-1998, at about 02-00 p.m., when the complainant was not in the village there was a quarrel between his son Mahendra-P.W.2 and A-3. After his returning home, his daughter Padma informed him about the quarrel. The complainant who is resident of Dwarakanagarm village went to Agaramangalm village where the green manure trees are situate and sought mediation by village elders. One Krishna Mandadi, a village elder declined to mediate. At about 08-00 p.m., the complainant approached another village elder P.W.3 Kamaiah Boyadu. While both of them were proceeding to their village along with P.W.5 Perumal, all the accused who were armed with sticks, waylaid them near electrical transformer in the outskirts of Agaramangalam B.C. colony and assaulted them. A-1 beat the complainant with a stick on the head and caused bleeding injury. A-3 beat him with a stick on the back of his head and caused bleeding injury. A-7 beat him with a stick on the left shoulder and caused contusion. A-5 beat him with a stick on the left wrist and hand and caused contusions. A- 4 and A-6 beat him with sticks on the left leg and caused contusion. On hearing his cries, Kamaiah Boyadu-P.W.3 approached him and all the accused fled away. P.W.4 came with a tractor and took the complainant to hospital. Meanwhile, P.W.2 also came there and got him admitted in Government Hospital, Chittoor. On a complaint statement given by P.W.1, the police registered a case in Cr.No.41 of 1998. The complainant went to CMC Hospital, Vellore on 30-01-1998 for better treatment and on their advice, he got himself admitted in Government Hospital, Chittoor for treatment of fracture injury and accordingly he was re-admitted in the hospital on 30-01- 1998 and was discharged on 18-02-1998. After completion of investigation, charge sheet was filed. 5. The learned IV Additional Judicial Magistrate of the First Class, Chittoor has taken cognizance of the offence in C.C.No.138 of 1998. The private complaint filed by the de facto complainant in C.C.No.23 of 2001 was also clubbed with C.C.No.138 of 1998. 6. A-1 to A-7 appeared before the Court and pleaded not guilty to the charges framed under Section 341, 324 and A-5 pleaded not guilty to the charge framed under Section 326 IPC and A-1 to A-4 and A-6 and A-7 pleaded not guilty to the charge framed under Section 326 read with Section 149 IPC. 7. In support of their case, the prosecution examined P.Ws.1 to 12 and marked Exs.P-1 to P-7 and M.Os.1 to 3. 8. The accused were examined under Section 313 Cr.P.C explaining the incriminating circumstances appearing against them in the evidence. No defence evidence was adduced on behalf of the accused. 9. On a consideration of the evidence available on record, the learned Magistrate found A-1 to A-7 guilty of the offences under Sections 324 and 341 IPC and also found A-5 guilty of the offence under Section 326 IPC and imposed the sentence as stated above. Aggrieved by the conviction and sentence, A-1 to A-6 preferred Crl.A.No.2 of 2003 before the Sessions Court, Chittoor. A-7 filed a separate appeal Crl.A.No.11 of 2003 and subsequently entered into compromise with P.W.1 the de facto complainant and settled the dispute before the Lok Adalath and consequently A-7 was acquitted under Section 320(8) Cr.P.C. 10. Learned Additional Public Prosecutor for the State and the learned counsel for the de facto complainant would contend that the lower appellate Court was not justified in doubting the veracity of the prosecution witnesses or in holding that there was delay in lodging the complaint. He would further contend that the lower appellate Court erred in finding that there was previous enmity between the complainant and the accused, without there being any evidence in that regard. He would further contend that the complainant was not involved in any of those previous cases. 11. The learned counsel for the accused, on the other hand, would seek to justify the judgment of acquittal passed by the lower appellate Court and contend that the offence having allegedly taken place during night time in darkness, the testimony of P.W.1 regarding specific overt acts of the accused cannot be believed as it was not possible for anyone to make a graphic description of the details of the attack when seven persons are said to have attacked the complainant. He would further contend that though all the seven accused are said to have caused injuries by means of weapons, the medical evidence shows only four injuries and there is no explanation in that regard. He would further contend that the incident is said to have taken place at 08-30 p.m on 27-01-1998, whereas the F.I.R-Ex.P-7 was registered at 11-30 p.m., and received by the Magistrate on 28-01-1998 at 01-20 p.m and the delay of more than 13 hours in despatch of the F.I.R is not duly explained and it gives rise to any amount of doubt over the possibility of false implication on account of previous enmity. He would further contend that P.Ws.2 to 7 are the followers of P.W.1 and figured as witnesses in all the cases of P.W.1 and hence their testimony cannot be relied upon. He would further contend that the order of acquittal passed by the lower appellate Court after reappraisal of evidence on record does not call for any interference. 12. Even in the charge sheet filed by the police, it is stated that there are previous longstanding disputes between the complainant-P.W.1 on the one hand and the accused on the other regarding their properties and also in connection with election of Sarpanch of the village. The trial Court also observed that admittedly there are disputes between the two since long time and number of cases were filed against one another. The lower appellate Court on re-appraisal of the evidence on record held that admittedly several cases were filed by the parties against one another, both civil and criminal and certified copies of the various judgments in various cases were also filed. 13. A perusal of the judgment of the lower appellate Court would show that at the time of arguments the accused filed certified copies of the judgments in various criminal cases along with a petition under Section 391 Cr.P.C to receive them as additional evidence in order to prove the longstanding disputes between the parties and the learned Additional Public Prosecutor stated no objection for receiving those documents and accordingly they were received as additional evidence. 14. The fact remains that admittedly there were disputes between P.W.1 and his people on the one hand and the accused on the other and several cases were filed against one another. It is also not disputed that P.W.1 was not a party in all the cases but his kith and kin were parties. The filing of several civil and criminal cases against one another is certainly indicative of the long pending disputes and differences between the two groups. 15. In the light of such enmity prevailing between the two groups, it is well settled that the testimony of the prosecution witnesses who claim to be eyewitnesses needs to be scrutinized with care and caution. The learned counsel for the complainant-P.W.1 contended that when there is direct eyewitness account to prove the assault, the motive pales into insignificance. The said proposition holds good when the direct evidence is found to be acceptable and reliable. While assessing the level of acceptability of the direct evidence, the previous existing enmity between the witnesses and accused is certainly a relevant factor to be kept in mind, as there is every possibility of the witnesses not being independent and on the other hand taking sides. The lower appellate Court had, therefore, adopted a correct approach in assessing the veracity of P.Ws.1 to 7 in the backdrop of the animosity and inimical terms they had with the accused. 16. Even according to the prosecution, on account of longstanding disputes and enmity only, the accused formed into unlawful assembly and waylaid P.W.1 on the night of 27-01-1998 and assaulted him in order to wreak vengeance against him. The incident is said to have taken place at 08-30 p.m., in the outskirts of the village. There is nothing in evidence to show the existence of any light at the scene of occurrence. 17. P.W.1 was said to be going along with P.Ws.3 and 5 when the assault took place. Besides the injured P.W.1, the prosecution relies upon P.Ws.3, 5, 6 and 7 who are said to be the eyewitness. P.W.2, who is the son of P.W.1, was admittedly not present at the time of occurrence and on hearing the cries, he rushed to the scene of offence. P.W.4 is also not an eyewitness to the occurrence and according to him he was going through the fields carrying jaggery baskets and on hearing the cries, he rushed to the scene of offence. According to P.W.1, he was beat by all the seven accused and he attributed specific overt acts to each one of them. He further deposed that all the seven accused beat him indiscriminately. If that is so, P.W.1 must have sustained injuries all over the person and the injuries would definitely exceed seven in number, but the medical evidence of P.W.9, the doctor, who examined him, coupled with Ex.P-4 injury certificate, would show that only four injuries were found on the person of P.W.1. The testimony of P.W.1 does not, therefore, accord with the medical evidence on record, as only four injuries were found on the person of P.W.1. His testimony attributing specific overt acts to everyone of the accused and further holding that he was beat by all of them indiscriminately, cannot be accepted as truthful. It is also highly improbable as to how P.W.1 could give out a graphic description of the attack on him and attribute specific overt acts to everyone of the accused with reference to the weapon and the location of the blow on his person dealt by each one of them, when the attack took place in darkness and all of a sudden without there being any altercation or exchange of words preceding the attack. According to P.W.1, at the time of the incident no one was present, whereas P.Ws.3, 5, 6 and 7 stated that about 20-30 persons gathered there. Admittedly, P.Ws.3, 5 6 and 7 are the followers of P.W.1 and they are also involved in the disputes with the accused. No independent witness who is totally disinterested in either of the parties figures as an eyewitness. Simply because P.Ws.3, 5, 6 and 7 also spoke in support of P.W.1, the same need not be taken as a corroboration, as they are both interested in P.W.1 and inimically disposed towards the accused on account of previous disputes. 18. The learned counsel for the complainant would contend that the lower appellate Court has observed that P.W.7 as a whole supported the prosecution case on material aspects but still discarded his evidence in view of the long standing enmity. Supporting the case of prosecution is one thing and veracity of the witnesses and acceptability of their evidence is quite another. Simply because the witnesses support the case of prosecution by deposing in a parrot like manner, the same need not always gain acceptability, especially when the evidence on record shows that there has been long standing enmity between the witnesses and the accused. The lower appellate Court has noted that P.Ws.1 to 7 are closely connected to each other and they figured as witnesses in the other cases filed by or against them as well supporting each other. In the absence of any testimony of independent eyewitness, the lower appellate Court has rightly held that no reliance can be placed on the testimony of P.Ws.1, 3, 5 to 7. 19. The learned counsel for the appellant relied on a decision in KRISHNA PILLAI SREE KUMAR V. STATE OF KERALA[1] wherein the Apex Court held as under: “The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the mater or pertain to insignificant aspects thereof. In the former case the defence may be justified in seeking advantage of the incongruities obtaining in the evidence in the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases.” The principle laid down in the above decision regarding the manner of appreciation of evidence cannot be disputed. However, the present one is not a case where the evidence is sought to be thrown out by giving undue importance to minor discrepancies, which do occur in almost every criminal case. The present case is one where the testimony of the alleged eyewitnesses is found to be unreliable owing to the nature of the attack during night time when it would be difficult for anyone to keenly observe the various overt acts attributed to everyone of the attacker in a case of sudden attack by a group of persons. Such evidence of the eyewitnesses does not inspire confidence in view of their interestedness in P.W.1 and animosity against the accused. 20. The learned counsel for the appellant relied on another decision in HARI OBULA REDDY V. THE STATE OF A.P.[2] wherein it was held that interested evidence is not necessarily unreliable evidence There cannot be any dispute regarding broad principles laid down in the above decision in the matter of appreciation of evidence of an interested witnesses. A careful scrutiny of the testimony of P.Ws.3, 5 to 7 would show that they are inconsistent with that of P.W.1, apart from they being interested witnesses. It is not merely on the ground of interestedness that the testimony of P.Ws.3, 5 to 7 is sought to be discarded but also on the ground that their testimony does not withstand the scrutiny required of in the circumstances and is found to be neither intrinsically reliable nor inherently probable. 21. The learned counsel for the accused would contend that there has been unexplained delay in lodging the F.I.R and sending the same to the nearest Magistrate and the said aspect assumes significance in view of the serious animosity between the parties giving any amount of scope for false implication. The incident is said to have taken place on 27-01-1998 at 08-30 p.m. The wound certificate-Ex.P-4 states that the injured P.W.1 was examined at 08-30 p.m. Admittedly, the incident took place in the outskirts of B.C. colony of Agaramangalam village and the injured was taken to Government Hospital, Chittoor which is 18 kms away. It is not explained as to how P.W.1 came to be examined by the doctor at the same time at which the incident is said to have taken place. It is also not disputed that G.D.Nellore Police Station is on the way from the scene of offence to the hospital and the injured had to necessarily pass through the said police station on the way to hospital. Admittedly, P.W.1 did not give any complaint at the police station while proceeding towards the hospital. It is not as though P.W.1 sustained such major or life threatening injuries so as to be rushed to the hospital for immediate attention. He sustained only simple injuries and a fracture injury on the wrist. It is not to suggest that the report of the police has to be necessarily given before proceeding to the hospital and in a given case, the injured may be justified in rushing to the hospital seeking medical aid. But, in the present case the failure of P.W.1 to stop at the police station which is on the way and report the matter to the police throws doubts over his version regarding the complicity of the accused and the overt acts attributed to them, especially in the light of previous enmity. The F.I.R was registered late in the night at 11.30 p.m after the Sub-Inspector recorded the complaint statement of P.W.1 at the hospital and it reached the Magistrate on the next day at 01-20 p.m. Thus, there was time gap of three hours between the time of occurrence and giving the complaint and delay of 13 hours between registration of the F.I.R and its reaching the Magistrate. Though the time gap looks short, it assumes significance in the background of the existing enmity between the two groups and also the fact that P.W.1 failed to give a report to the police though he passed through the police station and there is no explanation for not sending the F.I.R to the Magistrate, who is locally available, immediately after registration. The learned counsel for the appellant would rely on a decision in SARWAN SINGH V. STATE OF PUNJAB[3] wherein it was held that delay in despatch of the first information report is not a circumstance which can throw out the prosecution case in its entirety. In the above case, it was found that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R. In the present case, no such explanation is forthcoming. It is not as though the delay in despatch of the F.I.R would invariably lead to rejection of the prosecution case. The impact of such delay varies from case to case, depending upon the facts and circumstances of a given case. Even otherwise, assuming for a moment that the delay in sending the F.I.R to the Magistrate is not of much consequence, the failure of P.W.1 to give a complaint at the earliest point of time at the police station by which he has passed, runs contra to the natural course of human conduct. 22. The learned counsel for the accused invites attention of this Court to a decision in RABINDRA MAHTO v. STATE OF JHARKHAND[4] wherein the Apex Court held that mere delay in lodging FIR and further delay in sending the same to Magistrate concerned would not always be fatal to the prosecution case, but such delay is a material circumstance to be taken into consideration while appreciating evidence on record and having regard to reliable evidence led by prosecution, delay in forwarding FIR to Magistrate would not dislodge the prosecution case. The principle laid down in the above decision cannot be disputed. In the present case, there is no such reliable evidence let in by the prosecution so as to ignore the said delay altogether and hence the delay assumes significance in the present case while appreciating the evidence on record. 23. It is well settled that an order of acquittal cannot be easily interfered with unless there are strong and compelling reasons to do so. I n C.ANTONY V. K.G.RAGHAVAN NAIR[5], the Apex Court held as follows:- “Sitting as an appellate court against a judgment of acquittal passed by the trial court, there was an obligation on the part of the High Court to come to a definite conclusion that the findings of the trial court were either perverse or contrary to the material on record because the High Court could not have substituted its finding merely because another contrary opinion was possible based on the material on record. Moreover, while hearing an appeal against an order of acquittal, the High Court must express its reasons in the judgment for holding the acquittal to be not justified. If two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial Court.” 24. In AYODHYA SINGH V. STATE OF BIHAR AND OTHERS[6], the Apex Court held as under: “It is well settled that if on the same evidence two views are reasonably possible, where the Court below takes a view in favour of the accused, the Appellate Court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.” 25. In STATE OF GOA VS. SANJAY THAKRAN[7], the Apex Court held as follows: “While exercising the powers in an appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality land the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decisions is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view, which would upset the judgment, delivered by the Court below. However, the appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has committed a manifest error of law land ignored the material evidence on record. A duty is cast upon the appellate court, in such circumstances, to re- appreciate the evidence to arrive at a just decision on the basis of material placed on record to fine out whether any