Md.Ankoos & Ors vs Pub.Pros.High Court Of A.P. Hyderabad

5. The prosecution examined twenty-two witnesses of which PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW- 9 were tendered as eye-witnesses.

6. The postmortem of the dead bodies was conducted on August 4, 2000. The postmortem of dead body of D-1 records that she died of burn injuries. The injuries sustained by her are recorded in the postmortem report thus : 7

"P.W. 3 is husband of the deceased Uppakanthamma. He has given time of the incident as 9.00 p.m. which is contrary to the time noticed in Ex. P.1 as 1.00 a.m. As per the evidence of P.W. 3, A.1, A.2, A.3, A.5, A.6, A.7, A.10 to A.13, A.34, A.37 and A.54 took his deceased wife forcibly from his house to the scene of incident. Though P.W. 2 has alleged in his chief-examination about his witnessing the fact of taking the deceased Uppakanthamma from her house, he did not give names of A-1, A.7, A.13, A.34 and A.37 and A.54. Though P.W. 3 alleged that A-9 beat his deceased wife with a stick on her head and she sustained bleeding injury and that A.71 sprinkled chilli powder on it. P.W. 2 did not whisper about it in his entire evidence. P.W. 2 has deposed that A.13, A.20 and A.65 15 brought kerosene drum from the house of A.19 and that A.10 sprinkled kerosene on the deceased persons but P.W. 3 has given the names of the accused persons noted above as to have brought the kerosene drum and that A.13 poured kerosene on the deceased. Though P.W. 3 has stated that A.17 supervised the whole affair, P.W. 2 did not state about it. These are material contradictions in the evidence of P.Ws. 2 and 3 going to very root of the case.........

26. In our view, as a result of aforenoticed error of law, judgment of the High Court is rendered unsustainable.

27. Another grave illegality vitiating the judgment of the High Court is conviction of the appellants under Section 302 read with Section 149 IPC even though appellants have been acquitted of the offence under Section 148 IPC.

(1966) 1 SCR 18 25

30. It is also pertinent to mention that the prosecution came out with the case that the accused committed house trespass by entering into houses of D-1 to D-5 and dragged them out with an intent to kill. Accordingly, all accused persons were charged under Section 448 IPC but all of them have been acquitted as prosecution failed to establish the said offence against them. This again dislodges the material aspect of the prosecution case. Be that as it may, the view of the Trial Court in passing the judgment of acquittal is a possible view and cannot be said to be palpably wrong on facts or based on erroneous view of law and, therefore, High Court was not justified in interfering with the judgment of acquittal. It is true that five persons were done to death in the dead of night in a ghastly manner and the whole incident is quite shocking but in the absence of cogent and reliable evidence against the appellants connecting them to crime, view of the Trial Court in passing the judgment of acquittal cannot be said to be unjustified.

31. In the result and for the reasons indicated above, the appeal deserves to be allowed and is allowed. The judgment of the High Court passed on October 4, 2007 is set aside. The appellants shall be released forthwith, if not required in any other case.

........................J (D.K. Jain) ........................J (R. M. Lodha) New Delhi November 6, 2009.