THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.434/2007 Date of Judgment: 17-8-2010 Between State of A.P. rep. by Public Prosecutor High Court of A.P., Hyderabad ..Appellant And 1. Chand Baig and others ..Respondents/A-1 to A-3 The Court made the following Common Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE K.C.BHANU Crl.A.434 of 2007 Judgment: (Per Hon’ble Sri Justice A.Gopal Reddy) The State preferred this appeal questioning the order of acquittal dt. 9-6-2005 passed by the III Additional Sessions Judge (Fast Track Court), Asifabad in S.C.No.478/2003. The respondents herein, who are A-1 to A-3 in SC No.478/2003, were put on trial for the offence punishable under Section 302 r/w 34 IPC. The substance of the charge is that on 14-5-2003 at 14-00 hours at Tirnadaz Talkies gate, Kagaznagar, A- 1 to A-3 in furtherance of their common intention caused the death of one Mohammed Younus (hereinafter referred to as “the deceased”). The prosecution case, in brief, is as follows: There were disputes between the family of P.W.5 and A-1 to A-3. P.W.5 is the father of the deceased. P.W.6 is the sister-in-law of the deceased. P.W.16 is the brother of P.W.6. Two days prior to the date of incident, when P.W.6 went on road in front of her house to bring water from a tractor-tanker, P.W.16 and his wife Fathima beat her. P.W.16 and his wife came to the house of P.W.5 and beat P.W.6 questioning as to why she had not gone to the house the father-in- law of P.W.16. A-1 to A-3 are the brothers of the wife of P.W.16. Due to the said family dispute, on 14-5-2003 at 6 PM when the deceased was going in front of Thirandaz Talkies in Kagaznagar, A-1 to A-3 chased the deceased and while A-3 caught hold of the deceased, A-1 who is armed with small knife stabbed the deceased on his right elbow, right thigh and A-2 stabbed him twice on right ribs with big knife ie., talwar. P.Ws.1 to 4 witnessed the incident. P.W.1 went and informed about the incident to P.Ws.5 and 6, who rushed to the scene of offence immediately and shifted the deceased to E.S.I. Hospital, Kagaznagar, where P.W.8-Civil Assistant Surgeon gave first aid to the patient and referred him to Mahatma Gandhi Memorial Hospital, Warangal for better treatment. On receiving telephonic message from P.W.8, P.W.18-Sub- Inspector of Police, Kagaznagar, rushed to the hospital and recorded the statement of the deceased covered under Ex.P-10. Basing on the said statement, P.W.14-Assistant Sub-Inspector of Police registered the same as in Cr.No.45/2003 and issued First Information Report covered under Ex.P-7. P.W.18 examined the deceased and recorded his statement under Sec. 161 Cr.P.C., He visited the scene of offence and conducted scene of offence panchanama and prepared rough sketch covered under Ex.P-2 in the presence of P.W.7 and one Babu Rao. During the course of investigation, P.W.18 examined and recorded the statements of P.Ws.2 to 6,8 and 16. On 16-5-2003, P.W.18 arrested A-1 to A-3. He secured the presence of P.W.9 and 10 and in their presence he interrogated A-1 to A-3. At the instance of A-1 to A-3, he recovered M.O.2-knife from A-1 and M.O.1-sword from A-2 under a cover of confession-cum-seizure panchanama covered under Ex.P- 3. On receiving telephonic message from Osmania General Hospital, Hyderabad on 17-5-2003 at 9 AM that the injured Mohd. Younus had succumbed to injuries, P.W.18 prepared a memo altering the section of law from Sec.307 IPC to Sec.302 r/w 34 IPC and issued alteration memo covered under Ex.P-11. On receiving death summary from Osmania General Hospital on 17-5-2003 at 10-30 AM, P.W.12 registered a case in Cr.No.499/2003 under Sec.174 Cr.P.C., and issued FIR covered under Ex.P-6. P.W.13 held inquest over the dead body of the deceased in the presence of P.W.11. Ex.P-4 is the inquest panchanama. On requisition from Station House Officer, Afzalgunj, P.W.15-Civil Assistant Surgeon, Forensic Medicine, Osmania Medical College, Hyderabad conducted autopsy over the dead body of the deceased and issued postmortem certificate covered under Ex.P-8 opining that the deceased died due to stab injuries. P.W.12 sent all the material objects to the Forensic Science Laboratory, Hyderabad. P.W.20, after completion of investigation and on receiving relevant reports, filed the charge sheet before the Judicial Magistrate of First Class, Sirpur. Learned Magistrate took the charge-sheet on file as PRC No.32/2003 and committed the case to the Sessions Division of Adilabad District as the offence is exclusively triable by Court of Sessions. The learned Sessions Judge took the case on file as SC No.478/2003 and made over to III Additional District & Sessions Judge (FTC), Asifabad for disposal according to law. The learned Sessions Judge on hearing the prosecution and A-1 to A-3, framed a single charge for the offence punishable under Section 302 r/w 34 IPC against A-1 to A-3, read over and explained the same to them in Telugu, for which they pleaded not guilty and claimed to be tried. To bring home the guilt of A-1 to A-3 for the offences for which they stood charged, the prosecution examined 20 witnesses and proved 12 documents and exhibited 4 material objects. After closure of prosecution side evidence, A-1 to A-3 were examined under Sec. 313 Cr.P.C., and they denied the incriminating material appearing against them in the evidence of prosecution witnesses, and represented that there is no evidence to be adduced on their behalf. The learned Sessions Judge on careful appreciation of the evidence, oral and documentary, concluded that Ex.P- 10, the so called dying declaration recorded by P.W.18 is not true and genuine in view of the contradictory evidence of the Doctor- P.W.8 and P.W.18; that P.Ws.1 to 4, who are projected as eye witnesses according to the prosecution, have not witnessed the incident; that P.W.1 is a chance witness, whereas the evidence of P.Ws.2 and 4 is contradictory with the evidence of P.W.3; that injuries said to have been inflicted according to the ocular evidence have not been corroborated with the medical evidence; that the joint confession made by A-1 to A-3, which led to the recovery of M.Os.1 and 2 cannot be relied upon and accordingly held that the prosecution failed to establish the guilt of A-1 to A-3 for the offence with which they stood charged and acquitted them. Challenging the judgment of acquittal, the State preferred the appeal. The Supreme Court in CHANDRAPPA v. STATE OF KARNATAKA[1] observed 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. In the above case, the Apex Court after referring to its various earlier judgments laid down five principles, which have to be bear in mind in 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 view of the above principles, we have to carefully scan the evidence whether the prosecution is able to bring home the guilt of A-1 to A-3 beyond reasonable doubt and the view taken by the trial court in passing the acquittal order was not possible on the evidence or perverse, unreasonable and relevant and convincing material have been unjustifiably eliminated in the process, it is a compelling reason for interference with the order of acquittal passed by the trial court. Criminal law was set into motion by P.W.18 on recording the statement of the deceased covered under Ex.P-10. It was forwarded through P.W.17 to P.W.14, who registered the same as in Cr.No.45/2003 under Section 307 r/w 34 IPC and issued FIR covered under Ex.P-7. On registering the case, he handed over CD file to P.W.18. P.W.18 deposed that on receiving telephonic message from ESI Hospital, Kagaznagar informing that one person by name Mohd. Younus was admitted into the hospital he rushed to the hospital. He found the injured under treatment. He recorded the statement from the injured covered under Ex.P-10. He obtained thumb mark of the injured on Ex.P-10. He visited the scene of offence, which is situated in front of Thirandhaz Talkies in Kagaznagar and drawn rough sketch in the presence of P.W.7 and one Babu Rao-L.W.12. He prepared scene of offence panchanama covered under Ex.P-2. In the hospital, he seized blood stained clothes, namely, ash colour full shirt-M.O.4 and black pant-M.O.3 under a cover of seizure panchanama covered under Ex.P-1. At the scene of offence, he examined P.Ws.1 to 4 and Shaik Nawab- L.W.6 and recorded their statements. He visited ESI Hospital, where he examined P.Ws.5,6,8,16 and Fathima Bee-L.W.9 and recorded their statements. On 16-5-2003 on reliable information, he apprehended A-1 to A-3 at J.S.N. Engineering College, Kagaznagar. In the presence of P.Ws.9 and 10, he interrogated A-1 to A-3. In pursuance of their confession statements, he recovered one small knife-M.O.2 from A-1 and sword-M.O.1 from A-2 under a cover of confession and seizure panchanama covered under Ex.P- 3. P.W.8, who is the Civil Assistant Surgeon, working in ESI, Hospital, Kagaznagar and who gave first laid to the deceased, stated that in April or May of 2003, Kagaznagar Police brought one injured patient to their hospital with multiple injuries on his abdomen, back, shoulders and thighs. He gave first aid to the patient and referred him to M.G.M.Hospital, Warangal. In the cross- examination, he stated that when the police asked him about the condition of the patient, he stated that his condition was serious. Police did not collect any certificate from their hospital about the first aid given to the patient. The patient was kept in causality ward of the hospital and oxygen was supplied to him. It was about 6 of 7 PM. When the patient was brought to the hospital, he was unconscious and some alcoholic smell was coming out but his condition was stable. The patient was unconscious at the time when he was taken from E.S.I. Hospital. So, from the evidence of P.W.8-Doctor, it is clear that when he was brought to the hospital he was unconscious and when he was taken out of the hospital, he was unconscious, how P.W.18 recorded the statement from the deceased is not known. Further, P.W.18 stated that while recording the statement from the deceased, P.W.8 was present. If really, P.W.18 records the statement from the deceased, he ought to have obtained an endorsement from the Doctor about the condition of the patient as to whether he is capable of giving statement or not. Admittedly, P.W.18 did not obtain any endorsement form P.W.18 about the condition of the deceased either before recording the statement or after recording. The trial court rightly dis-believed the version spoken to by P.W.18 about recording of the statement from the deceased and it has been brought into existence by P.W.18 to implicate A-1 to A-3 in the case. We do not see any infirmity in the finding recorded by the trial court about the genuineness of Ex.P-10. Then coming to the evidence of P.Ws.1 to 4. According to the prosecution, P.Ws.1 to 4 are said to be the eye-witnesses to the incident. According to P.W.1, the incident took place at about 6 PM at Thirandaz Talkies in Kagaznagar. At that time, he saw A-1 to A-3 chasing the deceased. A-1 was armed with knife and A-2 was armed with a talwar (sword). While A-3 holding the deceased, A-2 inflicted injuries on his waist with the Talwar and A-1 stabbed him with the knife on the right side of his right thigh. A-1 to A-3 attacked the deceased with an intention to kill him. There was a bleeding as a result of injuries caused to the deceased. P.W.1 has not stated for what purpose he was standing at the place of offence at the relevant time. In his evidence, P.W.2 stated that he saw A-1 to A-3 chasing the deceased at 6 PM arming with knives. While A-3 holding the deceased, A-1 and A-2 stabbed him on the right side of his stomach and on his right thigh. A-2 was armed with a small knife, and A-2 was armed with a big knife. P.W.3, in his evidence, stated that he was running a cool drinks shop and on the date of incident, the deceased came running to his shop and was shouting for help and went inside his shop and stood in a corner of the shop. A-1 to A-3 came to his shop and attacked the deceased with a big knife and small knife and inflicted injuries on his back, stomach and thigh. He was at some distance and saw only stabbing of the deceased. He further stated that since he could not see properly he could not say the other details of the incident. P.W.4 deposed that she saw A-1 to A-3 on the date of the incident and earlier to the incident, she had no acquaintance with them. She further deposed that she saw A-1 to A-3 chasing the deceased and the deceased came towards their shops. Then, A-2 armed with a Talwar inflicted injury on the right side of stomach of the deceased and A-3 caught hold of him and A-1 armed with knife inflicted injuries on his back. She further stated that the deceased wore red colour shirt on the date of incident. Admittedly, the shirt of the deceased seized by P.W.18 is ash colour shirt covered under M.O.4. If P.W.4 really witnessed the incident she could not have stated that the deceased wore red colour shirt. When P.W.1 has not explained as to why he went to the place of incident on that day, he can be treated as only a chance witness, therefore, the presence of P.W.1, at the relevant point of time, is doubtful Further, in the cross- examination, P.W.2 admitted that he did not state before the police about the injuries inflicted by A-1 and A-2 on the specific parts of the body. Whereas P.W.3 in his chief examination stated that after the deceased went inside one of his shop rooms they attacked him. If that is the case, P.Ws.1, 2 and 4 witnessing the incident in the open place does not arise. P.W.5, who is the father deceased, stated that when he was at his house, P.W.1 came and informed him that his son was stabbed with knife at Thirandaz talkies and he also informed him that A-1 to A-3 stabbed him. He also told him that A-1 and A-3 stabbed him with Talwar and Knife. P.Ws.1 to 4 categorically stated that incident happened at 6 PM. But the charge, as such framed against the A-1 to A-3, would show that A-1 to A-3 on 14-5-2003 at 14-00 hours at Thirandz talkies gate, Kagaznagar with the common intention caused the death of Md.Younus. The prosecution misled A-1 to A-3 in not properly framing the charge, thereby depriving their valuable right of defence. This fact has not been noticed by the trial court, but it disbelieved the evidence of P.Ws.1 to 4 holding that the incident has not happened in the manner as projected to by the prosecution. As per the evidence of P.W.3, it is inside the shop, whereas as per the evidence of P.Ws.1,2 and 4, it is in the open place, in front of the Tirandaz talkies. The ocular evidence of P.Ws.1 to 4 has not been corroborated with the medical evidence of P.W.15, who conducted postmortem examination over the dead body of the deceased found the injuries on abdomen, chest, shoulder, back, thigh and buttocks. Whereas P.Ws.1 to 4 stated that A-1 to A-3 caused injuries to the deceased on his right thigh and stomach. If really P.Ws.1 ,2 and 4 saw the incident, they would have definitely stated that on which parts, A-1 to A-3 caused injuries to the deceased. For the aforesaid reasons and conclusions reached by us, we do not see any compelling reasons to set aside the acquittal order passed against A-1 to A-3 and to convict A-1 to A-3. In the result, the Criminal Appeal is dismissed confirming the acquittal order passed by the trial court. ________________ A.GOPAL REDDY, J. ___________ K.C.BHANU,J. Dt.17-8-2010 kmr [1] (2007) 4 SCC 415