APHC010162172016 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3547] WEDNESDAY,THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 676/2016 Between: 1. DURGASI SEETHA, VIZIANAGARAM, W/O. LATE SRI KRISHNA, AGED ABOUT 42 YEARS, R/O. UTTARAVALLI VILLAGE, MERAKA MUDIDAM MANDAL, VIZIANAGARAM DISTRICT. BEING WIFE OF THE DECEASED NO.1 AND LW.2. ...APELLANT AND 1. TALACHUTLAS RAJARATNAMNAIDU VIZIANAGARAM DIST 35 OTHRS, - 2. TALACHUTLA MOHANA RAO TIRUMALA, S/O. LATE SRI NARAYANA APPALANAIDU, AGE 49 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 3. TALACHUTLA VISWESWARA RAO, S/O.RAJARATHAMNAIDU, AGED ABOUT 34 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 4. TALACHUTLA HARIBABU HARI, S/O. RAJARATHNAMNAIDU, AGED ABOUT 32 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 5. TALACHUTLA SURYANARAYANA, S/O. LATE SRI NARAYANAPPALANAIDU, AGED AOBUT 58 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 6. VAVILAPALLI SURYANARAYANA, S/O. LATE RAMUNAIDU, AGED ABOUT 57 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 7. DAMERAL VENKATA SURYARAO DIED, - 8. BUDDARAJU RAMAKRISHNA RAJU VASU RAJU, S/O. LATE RAMABADRA RAJU, AGED ABOUT 72 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 9. GUJJALA RAMBABU RAMA RAO, S/O. GURUVULU, AGED ABOUT 30 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 10. GUIJALA GURUVULU, S/O. LATE YERAKAYYA, AGED ABOUT 65 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 11. MANDALA ADINARAYANA, S/O. LATE PARISINAIDU, AGED ABOUT 60 YEARS, RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 12. ALUBILLI ADINARAYANA, S/O. LATE APPALANAIDU, AGED ABOUT 35 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 13. MANDALA SADASIVUDUNAIDU, S/O. LATE ILLAYYA, AGED ABOUT 42 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 14. TALACHUTLA SRIHARI, S/O. VENKATARAO, AGED ABOUT 42 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 15. BOBBILI ATCHYUTARAO, S/O. GURAYYA, AGED ABOUT 35 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 16. MANDALA NARAYANARAO, S/O. JABARA RAMINAIDU, AGED ABOUT 35 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 17. MANDALA CHINNAMNAIDU, S/O. LATE LAXMUNAIDU, AGED ABOUT 45 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 18. VAVILAPALLI CHINA SEETHAYYA, S/O. LATE LAXMU, AGED ABOUT 68 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 19. KOLA GANDI, S/O. LATE RAMULU, AGE 50 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 20. DAMERA SATYANARAYANA, S/O. LATE SEETHAPPAYYA, AGED ABOUT 62 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 21. KOLA VENKATARAO, S/O. LATE NARASAYYA, AGED ABOUT 45 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 22. MANDALA SATISH, S/O. JABARA LAMINAIDU, AGED ABOUT 30 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 23. VAVILAPALLI SIMHACHALAM, S/O. CHINASEETHAYYA, AGED ABOUT 30 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 24. VAVILAPALLI SIMHACHALAM, S/O. PEDA SEETHAYYA, AGED ABOUT 35 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 25. MANDALA KANNAM NAIDU, S/O. SATYAM, AGED ABOUT 30 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 26. VAVILAPALLI APPAYYA, S/O. LATE BHIMAYYA, AGED ABOUT 38 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 27. VAVILAPALLI PYDITHALLI, S/O. CHINA SEETHAYYA, AGED ABOUT 25 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 28. GUJJALA APPARAO, S/O. JAGGAYYA, AGED ABOUT 35 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 29. DURGASI RAMU, S/O. ATCHAYYA, AGED ABOUT 32 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 30. KOLA DURGA RAO, S/O. RAMAYYA, AGED ABOUT 45 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 31. DURGASI SATYAM, S/O. LATE SURAYYA, AGED ABOUT 50 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 32. DURGASI VENKATA RAO RAMANA, S/O. SATYAM, AGED ABOUT 32 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 33. MANDALA PEDA GOWRU, S/O. LATE PAPINAIDU, AGED ABOUT 50 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 34. YENNU APPALANAIDU, S/O. LATE SANGAMNAIDU, AGED ABOUT 60 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 35. MANDALA SREENU, S/O. SEETAMNAIDU @ POTTI SEETANNA, AGED ABOUT 34 YEARS RESIDENTS OF UTTARAVALLI VILLAGE, MERAKAMUDIDAM MANDAL, VIZIANAGARAM DISTRICT 36. THE STATE OF A P, REP BY PUBLIC PROSECUTOR, HIGH COURT OF ANDHRA PRADESH, HYDERABAD ...RESPODENT(S): Appeal under Section 372/374(2)/378(4) of Cr.P.C praying that the High Court may be pleased to pleased to: i) allow the Criminal Appeal, by setting aside Judgment passed in S.C.No. 48 of 2002 dt. 29-1-2016 on the file of the I Additional Sessions Judge at Vizianagaram; ii) and to grant such other relief or releifs as IA NO: 1 OF 2016(CRLAMP 819 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to grant leave to the petitioner / appellant to file Criminal Appeal against the judgment passed in S.C.No.48/2002 on the file of the I Additional Sessions Judge at Vizianagaram pending disposal of the Criminal appeal and to pass IA NO: 2 OF 2016(CRLAMP 28836 OF 2016 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased Counsel for the Apellant: 1. TADDI NAGESWARA RAO Counsel for the Respodent(S): 1. T V SRI DEVI 2. PUBLIC PROSECUTOR (AP) The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI WEDNESDAY, THIS THE FIFTEENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE SPECIAL DIVISION BENCH PRESENT THE HONOURABLE SRI JUSTICE K SURESH REDDY and THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CRIMINAL APPEAL NO: 676 of 2016 JUDGMENT: (Per the Hon’ble Sri Justice Subba Reddy Satti) The wife of deceased No.1, P.W.3 filed the above appeal under Section 372 Cr.P.C., against judgment of acquittal in S.C.No.48 of 2002 dated 29.02.2016, passed by learned I Additional Sessions Judge, Vizianagaram. 2. Acting upon the complaint dated 30.09.2001 Ex.P1 made by P.W.2, the S.I. of Police, Budarayavalasa Police Station (since died not examined) registered Crime No.49 of 2001 against A1 to A35. Pending the Sessions Case, even before framing charges, A1 and A7 died and hence, the case against them was abated. Page 7 of 33 3. Accused Nos.2 to 6 and 8 to 35 were tried by the learned Additional Sessions Judge under the following charges: First charge was under Section 148 I.P.C. against A2 to A35; Second charge was under Section 148 read with 149 I.P.C. against A2 to A6, A8 to A35 along with A1 and A7; Third charge was under Section 452 read with 149 I.P.C. against A2 to A6, A8 to A35 along with A1 and A7; Fourth charge was under Section 427 read with 149 I.P.C. against A2, to A6, A8 to A35 along with A1 and A7 (since died); Fifth charge was under Section 302 read with 34 I.P.C. against A2 to A4 and A9; Sixth charge was under Section 302 I.P.C. against A9; Seventh charge was under Section 302 read with 34 I.P.C. against A29 and A31; Eight charge was under Section 324 I.P.C. against A18; Ninth charge was under Section 324 I.P.C. against A31 and A32; Tenth charge was under Section 324 I.P.C. against A9; Eleventh charge was under Section 324 I.P.C. against A7; Twelfth charge was under Section 324 I.P.C. against A27; Thirteenth charge was under Section 323 I.P.C. against A23; Fourteenth charge was under Section 324 I.P.C. against A6, A13 and A33. Fifteenth charge was under Section 324 I.P.C. against A15; Sixteenth charge was under Section 324 I.P.C. against A17 and A35; Seventeenth charge was under Section 324 I.P.C. against A12 and A22; Eighteenth charge was under Section 324 I.P.C. against A7, A8, A16 and A24; Nineteenth charge was under Section 341 I.P.C. against A20 and A21 and; The Twentieth charge was under Section 324 I.P.C. against A34. 4. Substance of the charge is that all the accused on 30.09.2001, at about 6:30 A.M., formed into an unlawful assembly with a common object to wreak vengeance against the group consisting of L.Ws.1 to 31, lead by Mandala Ramanamohana Rao and committed the offence of rioting, attacked Durgasi Krishna (hereinafter referred to as ‘deceased No.1’) and Duri Tavudu (hereinafter referred to as ‘deceased No.2’) and caused their death; caused injuries to P.Ws.3 and 7 to 15; and damaged the properties of P.Ws.16 to 20. 5. After completion of trial, the learned Additional Sessions Judge, by judgment dated 29.02.2016, acquitted all the accused, holding that the prosecution failed to prove the guilt of the accused in respect of the aforementioned charges. Aggrieved by the same, the wife of deceased No.1, examined as P.W.3, filed the above appeal. 6. The case of the prosecution, in brief, is that (i) On 30.09.2001, at about 7.30 AM to 8:00 AM, while deceased No.1 was talking with his brother, P.W.2 and his wife, P.W.3, on pial of their house, some people pelted stones at a time. P.W.2 rushed into his house, opposite the house of deceased No.1. Deceased No.1 and his wife tried to go into their house. A9 tried to poke deceased No.1 with a spear; however, deceased No.1 escaped from the blow. A2 to A4 caught hold of deceased No.1 and dragged him out. A1 poked deceased No.1 with a spear on his chest, due to which deceased No.1 fell on the ground and succumbed to injuries. When P.W.3 interfered, A9 beat her with the stick portion of the spear. P.W.1, who witnessed the incident, found all the accused armed with sticks, spears and knives. Thereafter, all the accused left the house of deceased No.1 by beating the available persons and proceeded towards the house of deceased No.2. After the accused left the place, P.W.2 and others attended to deceased No.1. (ii) On the same day, at about 8:00 AM, while deceased No.2 was returning from his fields and reached near the house of P.W.5, A29 and A31 beat deceased No.2 with stones and sticks, and A9 poked/stabbed deceased No.2 with a spear on the left side of abdomen, due to which, deceased No.2 fell on ground. P.Ws.22 and 23 lifted deceased No.2 to his house and later took him in a rickshaw of P.W.24 to Budarayavalasa Police Station. The Police took deceased No.2 to Cheepurupalli Government Hospital in a Police jeep. Subsequently, deceased No.2 was shifted to Government Hospital, Vizianagaram and thereafter to KGH, Visakhapatnam, where deceased No.2 succumbed to injuries at 8:40 PM, on 03.10.2001, while undergoing treatment. (iii) A9 and A18 beat P.W.3 and P.W.6, with a spear and a stick, due to which they received simple injuries. Exs.P49 and P50 are respective wound certificates. P.W.15 sustained simple injuries due to pelting of stones on him, and Ex.P60 is his wound certificate. A31 and A32 pelted stones on P.W.7, due to which he received simple injuries and Ex.P51 is the wound certificate. A29 beat P.W.8 with a stick, and he received simple injuries. Ex.P52 is the wound certificate. A7 beat P.W.9 with a stick, and Ex.P53 is his wound certificate. A23 beat P.W.10 with stones, and A27 pelted stones on him, due to which P.W.10 received simple injuries and Ex.P54 is the wound certificate. A6 beat P.W.11, with hands and Ex.P55 is his wound certificate. Due to the pelting of stones by A6, A13 and A33, P.W.12 received injuries, and Ex. 56 is his wound certificate. P.W.13 sustained injuries in the hands of A21 and A15, who hit him with their hands and pelted stones, respectively. Ex.P57 is his wound certificate. A17 and A35 pelted stones on P.W.14, due to which he received simple injuries. P.W.14 was also beaten by A7, A8, A16, A25 and A1 with sticks, stones and a spear. Ex.P59 is his wound certificate. (iv) During the attack, some of the accused trespassed into the house of P.Ws.16 and 20 and damaged their household articles. A5 and A10 damaged P.W.16’s household articles; A11 and A14 damaged the household articles of P.W.17; A18 and A24 damaged the household articles of P.W.18; A26 and A24 threw away the household articles (saman) of P.W.19 and took away the mirchi bag; and A28 damaged P.W.20’s household articles and took away 28 Kgs of rice bag. (v) Sub Inspector of Police, L.W.53, on receiving a phone call at 8.45 AM, proceeded to the village and brought the situation under control by posting a Police picket and guard. (vi) P.W.2 drafted a report through L.W.27 at his house and presented the report, Ex.P1, to S.I. of Police, L.W.53, who in turn, registered the same as Crime No. 49 of 2001 at about 10:30 AM on 30.09.2001 (Ex.P62), and sent copies of the F.I.R. to all the concerned. (vii) P.W.35, Inspector of Police, along with staff, reached the village at 11:45 AM and reached the scene of offence in front of the house of deceased No.1. He drafted scene observation report, Ex.P29 in the presence of P.W.25 and another, and seized M.Os.10, 11 and 12 i.e. the sticks, bungle tiles pieces and controlled earth. He also photographed the scene of offence with the help of a private photographer, P.W.21. Exs.P3 to P28 are photographs. P.W.35 conducted inquest over the dead body of deceased No.1 in the presence of panchayatdars. The Inquest report is marked as Ex.P31. During the inquest, P.W.35 examined and recorded statements of P.W.1 and other blood relatives of deceased No.1. He prepared a rough sketch of the scene of the offence, Ex.P63. He sent the body for postmortem examination. (viii) On 01.10.2001, P.W.28, Deputy Civil Surgeon, Community Health Centre, Aganampudi, conducted autopsy over the dead body of deceased No.1. She opined the cause of death was due to haemorrhage of shock due to injury to the vital organ, liver. The Postmortem report issued by P.W.28 is marked as Ex.P44. SECOND SCENE OF OFFENCE (ix) P.W.35, after receiving information about attack on deceased No.2, he along with mediators and staff, at 5:30 PM, on 30.09.2001, went to the second scene of offence, a vacant site situated in front of the tiled house of P.W.5, which is in the North-West direction of the first scene of offence. He examined P.Ws.4 and 5 and recorded their statements. He prepared Exs.P30 and P64, scene observation report and rough sketch of the second scene of offence. (x) Thereafter, he reached Government Hospital, Cheepurupalli at 8:00 PM and came to know that deceased No.2, P.Ws.15 and 14 were shifted to Headquarters Hospital, Vizianagaram for better treatment. He examined P.Ws.6 to 13 and another and recorded their statements. He also examined the photographer and recorded his statement. (xi) On 01.10.2001, at about 5:15 AM, P.W.35 went to Uttaravilli village and came to know that the houses of P.Ws.16 to 20 and L.W.16, Ramayya, were damaged and some articles were taken away by some of the accused. P.W.35 secured the presence of P.W.27 and another and visited the houses of P.Ws.14 and 16 to 20. He recorded statements of P.Ws.16 to 20 and got prepared scene observation reports Exs.P39 and 40, respectively. (xii) Thereafter, P.W.35 went to the well, where the original galata took place and prepared a scene observation report Ex.P41. Later, he went to the Government Headquarters Hospital, Vizianagaram, at about 3:30 PM, where P.Ws.14 and 15 were undergoing treatment. He seized the clothes of P.W.14 and prepared the occurrence report. Page 14 of 33 However, neither the mediators’ report nor the occurrence report was marked. (xiii) Thereafter, at 6:30 PM, P.W.35 went to K.G.H., Visakhapatnam, where deceased No.2 was undergoing treatment and recorded his statement. The said statement is not exhibited. On 02.10.2001, P.W.35 recorded the statements of P.Ws.7 and 24, who shifted deceased No.2 to the Police Station. (xiv) On 03.10.2001 at 12:15 PM, P.W.35, along with his staff, apprehended A1, A4, A6, A7, A12, A15 to A18, A21, A22, A25, A27, A32 and A35 at the mango shed of Pedda Reddi, near Venkateswara Cinema Hall of Merakamudidam village and recorded their confessional statements. The confessional statements of A1, A7 and A18 are marked as Exs.P32, P33 and P34. P.W.35 sent them to judicial remand. A1 led P.W.35 to Mangali Street of Uttaravilli Village at about 4:00 PM and produced a spear. P.W.35 prepared Ex.P35. A7 led P.W.35 and others to the tiled house and produced a stick, which was seized under mediators’ report Ex.P36. A18 led P.W.35 and others to his house and produced a stick which was seized under mediators’ report, Ex.P37. (xv) P.W.35, after receiving information about the death of deceased No.2 on 03.10.2001 at about 8:40 PM, secured the presence of P.W.26 and others on 04.10.2001, and went to KGH, Visakhapatnam. Page 15 of 33 He held inquest over the dead body of deceased No.2. Ex.P38 is the inquest report of deceased No.2. At the inquest, P.W.35 examined P.Ws.23 and others and recorded their statements. (xvi) On 30.09.2001 at about 8:20 PM, on receiving requisition, Ex.P46 from Causality Medical Officer, K.G.H. Visakhapatnam, P.W.31, for recording dying declaration of deceased No.2, P.W.30, learned IV Metropolitan Magistrate, Visakhapatnam, recorded dying declaration of deceased No.2, Ex.P47, in the operation theatre. As per Ex.P46, requisition, the time mentioned is 5:30 PM. The patient was prepared for surgery. Ex.P48 is the letter addressed by P.W.30 to the Judicial Magistrate of First Class, Cheepurupalli, transmitting the dying declaration of deceased No.2. (xvii) On 05.10.2001, P.W.29 conducted the postmortem over the dead body of deceased No.2 and issued Ex.P45 postmortem certificate. He opined the cause of death is due to “septic and toxic complications of peritonitis due to penetrating abdominal injury, associated with injury to the left lung. (xviii) P.W.32 Civil Assistant surgeon, Community Health Centre, Chipurapalli, issued wound certificates of PWs 3, 6 to 14 and 16. Wound certificates are marked as Exs.49 to 60, respectively. Page 16 of 33 (xix) P.W.35 also examined the Chief of the second unit surgery, K.G.H., Visakhapatnam. The case sheet and history sheet are marked as Exs.P61 and P62, respectively. (xx) On 05.10.2001, on receiving credible information, P.W.35, along with P.W.25 and another, reached Garbham village market yard junction shed and arrested A9, A13, A29, A31 and A33 and recorded their statements. The admissible portion of the confessional statement of A9 is marked as Ex.P42. A9 led the team to his house at Devara Street, Uttaravalli village and produced a spear, which was seized under Ex.P43, mediators’ report. He arrested A9, A13, A29, A31 and A33 and sent them for judicial remand on the same day. P.W.35 also arrested A5, A2, A10, A11, A14, A19, A20, A26, A28, A30 and A34 and sent them to judicial custody. (xxi) On 15.10.2001, A23 and A24 surrendered before P.W.35. He sent them to judicial remand. Later, P.W.35 sent the material objects to RFSL under a letter of advice, and the RFSL report is marked as Ex.P65. On 15.11.2001, A3 and A8 surrendered before P.W.35. After completing the investigation, P.W.35 filed a final report/charge sheet. 7. In support of its case, the prosecution examined P.Ws.1 to 35, marked Exs.P1 to P65 and exhibited M.Os.1 to 15. The contradictions were marked as Exs.D1 to D6. Page 17 of 33 8. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating material appearing against them. 9. The trial Court, after considering the ocular and documentary evidence, found A2 to A6 and A8 to A35 not guilty of the offences aforementioned and acquitted them under Section 235 (1) Cr.P.C. Aggrieved by the said judgment, the above appeal is filed by P.W.3, wife of deceased No.1. 10. Heard Sri Tadi Nageswara Rao, learned counsel for the appellant, Sri Upendra, learned counsel representing Smt. T.V. Sridevi, learned counsel for respondents/A3 to A5, A7, A9, A12, A14 and A30 and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the State. 11. Learned counsel for the appellant would contend that the prosecution proved the guilt of the accused beyond a reasonable doubt. He would contend that the trial Court failed to appreciate the evidence of P.Ws.1 to 3, 6, 10 and 11, direct witnesses to the offence committed causing death of deceased No.1 and the evidence of P.Ws.4, 5 and 12, direct witnesses, to the offence committed against deceased No.2. He would also submit that the trial Court failed to consider the dying declaration Ex.P47 recorded by the Magistrate, P.W.30. Page 18 of 33 12. Sri Upendra, learned counsel for the respondents, on the other hand, would contend that the trial Court considered every aspect and eventually found the accused ‘not guilty’. He would submit that P.Ws.1 to 3, 6, 10 and 11 and P.Ws.4, 5 and 12 are planted witnesses. He would submit that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt. He would further contend that the prosecution withheld the statement of the 2nd deceased, recorded in the Police Station and also the statements recorded by P.W.35. He would submit that deceased No.2 died in the hospital due to other medical complications. 13. We have carefully scrutinised the material available on record. 14. Before proceeding further, let this court examine the scope of the appeal against acquittal, as per the judicial precedents rendered by the Apex Court. 15. The Hon’ble Apex Court in Gopal Reddy Vs State of Andhra Pradesh1, considered the jurisdiction of the High Court in an appeal filed under Sec 378 Cr.P.C. against an order of acquittal, after considering the relevant decisions on the point, observed as follows: “9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for ‘substantial and 1 (1979) 1 SCC 355 : AIR 1979 SC 387 compelling reasons’ only and courts used to launch on a search to discover those ‘substantial and compelling reasons’. However, the ‘formulae’ of ‘substantial and compelling reasons’, ‘good and sufficiently cogent reasons’ and ‘strong reasons’ and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] . In Sanwat Singh case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] . Occasionally phrases like ‘manifestly illegal’, ‘grossly unjust’, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of A.P. [(1970) 3 SCC 474 : 1971 SCC (Cri) 80 : AIR 1971 SC 460] , Bhim Singh Rup Singh v. State of Maharashtra [(1974) 3 SCC 762 : 1974 SCC (Cri) 238 : AIR 1974 SC 286] ), it has been said that to the principles laid down in Sanwat Singh case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] may be added the further principle that ‘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’. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.” 16. In Allarakha K. Mansuri v. State of Gujarat 2, by referring to earlier decisions, qua the appellate court’s jurisdiction, the Hon’ble Apex Court observed: “7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a 2 (2002) 3 SCC 57 : (2002) SCC (Cri) 519 basis to urge that the High Court under all circumstances should not disturb such a finding.” 17. In Harijana Thirupala v. Public Prosecutor, High Court of A.P3., the Hon’ble Apex Court considered the scope of appeal and observed, thus; “12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.” 18. The Hon’ble Apex Court again considered the entire case law vis-à- vis the scope of appeal in an appeal filed against acquittal, in Chandrappra and others Vs State of Karnataka4 and summed up as follows: 3 [(2002) 6 SCC 470 : 2002 SCC (Cri) 1370] 4 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate 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 emphasise 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 a double presumption in favour of the accused. Firstly, the presumption of innocence is 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.” 19. The same principle was reiterated in Ramesh and another Vs the State of Karnataka5. 20. Thus, as seen from the authoritative expressions of the Hon’ble Apex Court, though the appellate Court is empowered with powers to re- appreciate the evidence in appeals against acquittal, such power should be exercised with great care and caution. A judgment of acquittal strengthens the presumption of innocence. The appellate court shall also consider the double presumption in case of acquittal. The appellate Court should give weight to the trial court's acquittal judgment. The reversal is justified only in case any contrary evidence is proved. 21. In the case at hand, as seen from the prosecution's case, and also the evidence available on record, a political rivalry exists between two groups in the village. The prosecution party was headed by Mandala Rama Mohanarao, L.W.42 and the accused party was headed by accused No.1, who was murdered pending S.C.No.48 of 2002. The groups belong to two different political parties, and cases have been pending between the two groups since 1979. 22. Deceased No.2 was figured as an accused in C.C.No.255 of 1999 and C.C.No.220 of 1994. It is also pertinent to mention here that pending S.C.No.48 of 2002 (against which the appeal is filed), accused No.1 was 5 (2024) 9 SCC 169 murdered, which was tried in S.C.No.112 of 2005 and most of the prosecution witnesses were figured as accused in S.C.No.112 of 2005. 23. At the hearing, learned counsel for the appellant submitted that the Sessions Court convicted the accused in S.C.No.112 of 2005 and said conviction was set aside in an appeal filed by them. 24. The present incident took place on 30.09.2001, at about 7:30 to 8:00 am. Before the said incident, as per the prosecution, an altercation took place at the well, situated at Ramalayam Street, between womenfolk of both the groups and thereupon the accused attacked the prosecution party. 25. As per the defence theory, the prosecution witnesses, including P.Ws.1, 2, 5 to 12, 14, 15, deceased No.2 and others, trespassed into the house of Bommarillu Sanyasi, father-in-law of accused No.9, at about 8:00 am, caused damage to the household articles and took away the motor engine. Said Sanyasi gave a report, and the same was registered as crime No.50 of 2001. Some of the witnesses in this case deposed that they were figured as accused in the said crime. The accused filed the said document during their examination under Section 313 Cr.P.C. 26. The main contention of learned counsel for the appellant is that P.Ws.1 to 3, P.Ws.6, 10 and 11 are eye witnesses to the murder of deceased No.1, committed by A1 and A4 to A9; and P.Ws.4, 5 and 12 are eye witnesses to the murder of deceased No.2, committed by A9, A29 and A31. His further contention is that P.Ws.3 and 6 to 15 are injured witnesses. However, the trial Court failed to consider the evidence from a proper perspective. 27. When there are fractions in the village and there exists rivalry between two groups and other criminal cases pending, the evidence of witnesses must be scrutinised carefully and cautiously. 28. In the case at hand, as per the prosecution, the murder of deceased No.1 took place at his house. However, the names of neighbouring residents of deceased No.1 were neither cited as witnesses nor were they examined by P.W.35, the investigating officer. 29. It is also an undisputed fact that there was heavy rain on the date of the incident. P.W.35, investigating officer, deposed that there was a cyclone on the previous day and on the date of the incident, there was heavy rain up to 9:30 am. P.W.3, wife of deceased No.1, also deposed that at the time of the offence, it was raining. According to the prosecution, the first incident took place when deceased No.1 was chatting with his wife, P.W.3 and his brother on the pial of the house and the same was disbelieved by the trial Court. Further in Ex.P1, nothing was stated about raining or chatting by deceased No.1 with his wife, P.W3. The report does not contain the names of prosecution witnesses about witnessing the accused committing the offence of killing deceased No.1. 30. Further, F.I.R. was registered at about 10:30 am. P.Ws 1, 3, 4 and 7 deposed that the Police came to the village at about 11:30 am and stayed up to 2:30 or 3:00 P.M. Whereas, P.W.2 deposed that after one hour of the incident, police came to the village i.e. even before the report was given by P.W.2, and P.W.5 deposed that the Police came to the village at 6:00 pm on that day. According to P.W.35, the investigating officer, after registering F.I.R., sent S.I. of Police to the village to control the law-and-order situation. He further deposed that the S.I. of Police, Budarayavalasa Police Station, received a phone call from the village about the incident at about 8:30 am, and the S.I. of Police went to the village at 8:45 am, and thereafter crime No.50 of 2001 was registered. 31. Thus, even before registering the crime in the present case, the S.I. of Police registered crime No.50 of 2001. The prosecution miserably failed to prove the genesis of the occurrence of the present crime. This aspect was also taken note of by the Trial Court. 32. It is pertinent to mention here that the presence of P.W.3, (wife of deceased No.1,) was not even stated by P.W.1 or P.W.2. The Police registered FIR on 30.09.2001, at 10:30 am and the same reached the jurisdictional magistrate on 01.10.2001 at 12:55 am, which is sufficient for deliberations and discussions particularly when there are traces of fraction rivalry. This aspect was also considered by the learned trial Court. 33. P.W.2, complainant deposed that after the first incident, he was with the body for half an hour and thereafter went to the house of T. Adinarayana, and got drafted Ex.P1. He further deposed that said Adinarayana used to work in the convent run by one Jagan Mohana Rao, leader of one political Party, the prosecution party. The brother of Jagan Mohana Rao is a Senior Advocate of the bar, and he was appointed as Additional Public Prosecutor on the date of the alleged incident. The Additional Public Prosecutor, for the best reasons known to him, has not examined the leader of the prosecution party, Mandala Rama Mohana Rao, L.W.42 and L.W.27, Adinaryana, who drafted Ex.P1. In fact, the trial Court also specifically observed that P.Ws.19 and 20, in their evidence, stated that M. Rama Mohana Rao brought them to the Court to give evidence. 34. Regarding the second occurrence, P.Ws.4, 5, and 12 deposed that the incident occurred from 8:00 am to 8:30 am. P.Ws.4 and 5 are family members of deceased No.2. According to their evidence, immediately after the incident, they moved the injured i.e. deceased No.2, in a rikshaw of P.W.24, to Budarayavalasa Police Station at 9:00 am and stayed there for half an hour. P.W.24, in his cross-examination, deposed that the Police recorded the statement of the injured and obtained his thumb impression. However, the prosecution failed to exhibit the said statement of the injured (deceased No.2). The first statement recorded from Deceased No.2 was not exhibited by the prosecution for the reasons best known. Thus, the prosecution withheld the first statement recorded by the police immediately after the incident. 35. In Tomaso Bruno and another Vs the State of U.P.6 the Hon’ble Apex Court considered the failure of the prosecution for not producing the best evidence, in that case, the prosecution failed to produce the CCTV footage, observed as follows: 27. As per Section 114 Illustration (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 Illustration (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of the Negotiable Instruments Act, where the court has no option but to draw a statutory presumption, under Section 114 of the Evidence Act, the court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114 Illustration (g) of the Evidence Act depends upon the nature of 6 (2015) 3 SCC (Cri) 54 : (2015) 7 SCC 178 fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party. 28. …….In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced. 36. Another instance, the trial Court pointed out, is regarding registration of F.I.R. According to P.W.24, he took the injured deceased No.2 to Budarayavalasa Police Station at 9:00 am, and the Police recorded the statement of the injured and obtained a thumb impression. Therefore, by 9:00 AM, the police are aware of the incident and could have registered F.I.R. However, registration of F.I.R. on the complaint made by P.W.2, drafted by L.W.27, creates any amount of doubt regarding the prosecution theory. 37. Regarding the second incident, as per the dying declaration of deceased No.2, the incident took place in front of the house of accused No.9. However, as per the prosecution, the scene of offence is in front of the house of P.W.5. As per the dying declaration of deceased No.2, accused No.9 stabbed him and two others beat him. However, their names were not known to him; whereas, as per the prosecution, the scene of offence is in front of the house of P.W.5. Thereby, the place of the scene of offence itself has been changed. In fact, on the same day, another crime was registered vide F.I.R.No.50 of 2001, regarding the incident at the house of the father-in-law of accused No.9, in which P.Ws.1, 2, 6 to 12, 14, 5 and deceased No.2 are figured as accused. The house of accused No.9 is on Devara Street. However, the alleged incident had taken place in Durgasi Street. Deceased No.2 was admitted to the hospital at 5:00 p.m. on 30.09.2001 and succumbed to injuries on 03.10.2001 at 8:40 am. P.W.29, Medical Officer, conducted a postmortem and opined that the deceased appeared to have died due to septic and toxic complications of peritonitis due to penetrating abdominal injury, associated with injury to the lung. The prosecution also failed to examine the medical officer of the Government headquarters hospital at Cheepurupalli, Vizianagaram, regarding the treatment of the injured (deceased No.2). 38. The other instance considered by the trial Court is regarding the veracity of the witnesses, as all the witnesses, even after fourteen or fifteen years of the incident, in one voice gave parrot evidence, by exaggerating their version. The witnesses are from rural and urban areas, and they are illiterate. All these instances were considered by the trial Court meticulously, and it concluded that the prosecution failed to prove the guilt of the accused beyond a reasonable doubt. 39. In A. Shankar v. State of Karnataka7, the Hon’ble Apex Court held as under: “22. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.” 40. In Lakshmi Singh v. State of Bihar8, the Hon’ble Apex Court held as under: “11. These are the only witnesses who have proved the participation of the five appellants in the assault. No independent witness has been examined by the prosecution to support the assault. In fact PW 1 Ramji Singh has admitted that when he reached the place of occurrence he found 6 to 7 persons of the village and yet none of them have been examined to corroborate the evidence of the interested or inimical 7 (2011) 6 SCC 279 8 (1976) 4 SCC 394 witnesses examined by the prosecution. Moreover the evidence of PWs 1 to 4 clearly shows that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gives an impression that they have given a parrot-like version acting under a conspiracy to depose to one set of facts and one set of facts only…..” (emphasis is mine) 41. In the case at hand, the trial Court recorded a finding that the witnesses were well tutored before giving evidence. In fact, we are of the considered view that the findings recorded by the trial court do not call for any interference. 42. Learned counsel for the appellant failed to overcome the findings recorded by the trial Court. When the trial Court considered these aspects very minutely, merely because a different view is possible, unless the findings recorded by the trial court suffer from perversity, the appellate Court will not normally interfere, given the ratio laid down in Chandrappa’s case, etc., referred to supra. 43. The photographer, examined as P.W.21, in his evidence, deposed that on the date of the incident, he took photos of the scene of offence at 7:00 pm or 7:30 pm, and he took photos of both deceased No.1 and deceased No.2 at the mortuary. Exs.P3 to P28 are photos. When deceased No.2 died three days after the incident, taking his photo on the date of the incident at the mortuary creates doubt in the case of the prosecution. 44. Though the injured witnesses are examined as P.Ws.3, 6 to 15, none of them spoke about the specific overtacts of the accused, and there is no further corroboration. 45. Given the discussion made supra, in our considered opinion, the trial Court considered every aspect very minutely and eventually found the accused not guilty of the offences. The Appellants failed to prove any perversity in the judgment. The judgment under appeal does not suffer from infirmity or illegality, warranting the interference of this Court while exercising the appellate jurisdiction. There are no merits in the appeal. 46. Accordingly, this criminal appeal is dismissed, confirming the judgment of acquittal in S.C.No.48 of 2002 dated 29.02.2016, passed by learned I Additional Sessions Judge, Vizianagaram. Consequently, miscellaneous petitions, if any, pending shall stand closed. ________________________ JUSTICE K.SURESH REDDY ___________________________ JUSTICE SUBBA REDDY SATTI Date : IKN