HON’BLE SRI JUSTICE K.C.BHANU AND HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRIMINAL APPEAL No.887 of 2007 JUDGMENT: (per Hon’ble Sri Justice N.R.L.Nageswara Rao) The State represented by the Public Prosecutor is the appellant herein aggrieved by the acquittal of the accused in S.C.No.22 of 2003 on the file of the III Additional Sessions Judge, Fast Track Court, Kadapa. About eight accused were prosecuted for the offences under Sections 147, 148, 326, 302 read with Section 149 IPC and Sections 3 and 5 of the Explosive Substances Act, 1908. All the accused were the residents of Bidinamcherla Village of Simhadripuram Mandal and there were factions in the village and all the accused are interrelated. The deceased- Bhumireddy Chinna Chennappagari Chandrasekhar Reddy was the brother-in- law of PW.1. There were longstanding political differences between the accused and the deceased during the assembly elections and parliamentary elections. Some cases have also preceded prior to the date of incident i.e. 27.10.2000. According to the prosecution, due to the above rivalry, the accused watched the movements of the deceased and were waiting for an opportunity to take revenge. On 27.10.2000 at about 8.30 P.M. when the deceased and PW.1 were sitting on a pial in front of their house after taking food, PW.2 went to talk to the deceased and all three of them went to the cement road and while they were talking in between the houses of Adinarayanareddy and Narayanareddy under the electric pole and streetlight and, at that time, all the accused came as members of unlawful assembly and attacked the deceased. A.8 is said to have carried some bombs with him during the course of attack. When PW.1 interfered, A.8 is said to have beaten him with a stick on his left forearm causing fracture. The incident is said to have been witnessed by PWs.1 and 2 because of the availability of the streetlight and on hearing the cries, some neighbours also gathered. Thereafter, the deceased died due to the injuries. Initially, a telephonic information was given to the police and, subsequently, complaint-Ex.P.1 was given by PW.1, which was registered as a case in Crime No.40 of 2000 and investigated into. During the course of investigation, the statements of the witnesses were recorded, panchanama of the scene was conducted and inquest was held over the dead body of the deceased and it was sent to the post-mortem examination. The accused were arrested and their confession statements were recorded. The investigation revealed that the accused were guilty of the offences punishable under Sections 147, 148, 326, 302 read with 149 IPC and Sections 3 and 5 of the Explosive Substances Act. The case was taken on file as PRC by the Judicial First Class Magistrate, Pulivendla and was committed to the Court of Sessions. After appearance of the accused before the learned Sessions Judge, charges under Sections 148 IPC against A.1 to A.8, 302 IPC against A.1 to A.5 and A.7, 326 IPC against A.8, 302 read with 149 IPC against A.6 and A.8, 326 read with 149 IPC against A.1 to A.7, 302 read with 114 IPC against A.1, Sections 3 and 5 of the Explosive Substances Act against A.8 were framed, read over and explained to the accused and they pleaded not guilty. On behalf of the prosecution, PWs.1 to 13 were examined and Exs.P.1 to P.17 were marked and M.Os.1 to 6 and contradictions Exs.D.1 to D.5 were marked on behalf of DW.1. After the evidence of the prosecution is over, the accused were examined under Section 313 Cr.P.C. While maintaining the plea of innocence, the accused examined DW.1, the photographer, who had taken the photos at the scene of offence. After considering the evidence on record, the learned Sessions Judge found that the prosecution evidence of PWs.1 and 2 witnessing the incident is not believable and, accordingly, acquitted the accused. Aggrieved by the said acquittal, the present appeal is filed. The points that arise for consideration are: 1. Whether the judgment of the learned Sessions Judge in recording acquittal against all the accused is due to non-appreciation of the evidence and due to any perverse reasoning and ignoring the material evidence on record? 2. Whether the acquittal recorded by the lower Court calls for any interference? Heard the learned Public Prosecutor and Sri C.Padmanabha Reddy, learned Senior Counsel for the accused. Before taking into consideration the contentions of the learned Public Prosecutor, we should guard ourselves of the limitations of this Court in considering the interference in cases of acquittal recorded by the lower Court. Learned Counsel for the accused relied on a decision in Babu v. State of Kerala[1], whereunder reiterating the earlier decision of law, the Supreme Court has stated that the appellate Court should not ordinarily set aside the judgment of acquittal and, in exceptional cases, where there are compelling circumstances and the judgment is found to be perverse, then the Court can interfere. It also added that, in cases, where two views are possible, the one beneficial to the accused has been given, the appellate Court cannot take a different view and deny the benefit of doubt to the accused. The facts that the Bidinamcherla Village was a faction Village and that there were differences between the accused and the deceased politically and also due to the preceding elections are not in dispute. The prosecution entirely relies upon the evidence of PWs.1 and 2. It is true that PW.1 is the nearest relative of the deceased and PW.2 is also said to be close to them. That by itself is not a ground to discard, if otherwise it is acceptable. As can be seen from Ex.P.1, the specific case of the complainant-PW.1 is that at about 8.30 P.M., he along with the deceased took food and they sat together at that time. PW.2, a relation, came to them and all three of them went to the cement road which was in front of their house and were talking below the streetlight and, at that time, the accused are said to have come and attacked the deceased. Sri C.Padmanabha Reddy, learned Senior Counsel for the accused, contends that the very manner of attack and the scene of offence pleaded by the prosecution is not believable. As rightly contended by the learned counsel for the accused, Ex.P.17, the rough sketch, prepared by the Investigating Officer at the scene of offence does not show that either the house of PW.1 or the house of the deceased were in front of the streetlight. On the other hand, the streetlight was on the other side of the road and neither opposite to the house of the deceased nor PW.1 as claimed by him. In fact, the complaint-Ex.P.1 clearly goes to show that PW.1 and the deceased were sitting in the house of PW.1. But, later, during the evidence, he has corrected himself by saying that he was staying in the house of the deceased who was no other than his brother-in-law. Probably, this may be an improvement to overcome the deficiency in the prosecution case. Therefore, the scene of offence as deposed by PW.1 is not tallying with the physical features noted in Ex.P.17. Since there was no light opposite to the house of the deceased and there was no house of PW.1 where he was said to be sitting, the very presence of PWs.1 and 2 along with the deceased is under cloud. Learned Sessions Judge found that the theory of identifying the accused persons and attacking the deceased was only by virtue of the presence of a streetlight near the scene of offence, but the evidence on record discloses that there was no supply of electricity to the streetlights since long time and that day being an amavasya with pitch darkness, there was no possibility of identifying the accused. In fact, in the absence of a streetlight at the scene of offence, it is very difficult for anybody to identify the deceased and the attack on him. When once the evidence on the side of the prosecution conclusively shows without any doubt that there was no lighting to the streets, then the theory of PW.1 going about near the streetlight and sitting there was also an improbability. Further more, it is to be noted that the incident was said to have occurred in front of the house of Putluru Adinarayana Reddy, who is said to be an advocate, but, the said witness was not examined by the prosecution to know about the truthfulness or otherwise of the prosecution case. It is expected that, by the time when the incident is said to have taken place, at about 8.30 P.M., the people will be in the houses in villages and their absence cannot be presumed. So also, by hurling of a bomb, the house of Obulakkagari Kesavareddy is said to have been damaged. But the prosecution has not examined the said Obulakkagari Kesavareddy to show that a bomb was thrown on his house and, consequently, his house was damaged on the night of the incident as deposed by PW.1. Therefore, all the circumstances, throws any amount of doubt about the veracity of the version given by PWs.1 and 2. Added to that, PW.1 is said to have given complaint at the police station on 27.10.2000 at about 11.30 P.M. It is the positive evidence of PW.12 that PW.1 came to the police station at that time and he sent PW.1 for medical examination. Therefore, PW.1 must have been sent to the medical examination as per the evidence of PW.12 immediately on 27.10.2000. But, a perusal of Ex.P.3-wound certificate of PW.1 shows that he was examined on 28.10.2000 at about 10.00 A.M. and the column in Ex.P.3 is silent about the crime in which he was sent for medical examination by the police. All the circumstances throw any amount of doubt whether really PW.1 was present and received the injuries. Therefore, for all the above reasons, there are no acceptable or any reasonable grounds to come to a conclusion that the finding of acquittal recorded by the learned Sessions Judge is perverse or there is no proper appreciation of the evidence. We are in agreement with the learned counsel for the accused that the evidence of PWs.1 and 2 has been rightly rejected by the lower Court. Therefore, there are no merits in the appeal. Accordingly, the Criminal Appeal is dismissed. K.C.BHANU,J N.R.L.NAGESWARA RAO,J Date:29.12.2010 usd [1] 2010(3) SCC (Cri) 1179