APHC010107822009 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY, THE TWENTY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE T CRIMINAL APPEAL NO: Between: 1. THE STATE OF A.P., COURT OF A.P., HYDERABAD 1. SHAIK AKBAR BASHA, S/o Shaik Thummular Hussain Miah, Pagidyala Village, Pagidvala Mandal, Kurnool District Appeal under Section 372/374(2)/378(4) of Cr.P.C Court may be pleased to present this Memorandum of C against the judgment in S.C.No.235 of 2006 on the file of the Assistant Sessions Judge, Nandikotkur, dated 1 this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused(Respondents) for the offences with which they were charged. IA NO: 1 OF 2009(CRLAMP 655 OF 2009 Petition under Section 151 CPC in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 417 days in presenting an appeal against the order of acquittal of the accused/respondent in S.C.No.235 of 2006 on the fil Assistant Sessions Judge, Nandikotkur, dated 1.8.2006 Counsel for the Appellant: 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) TWENTY-FOURTH DAY OF OCTOBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 1417/2009 ., REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYDERABAD ...AP AND SHAIK AKBAR BASHA, S/o Shaik Thummular Hussain Miah, Pagidyala Village, Pagidvala Mandal, Kurnool District ...RESPODENT under Section 372/374(2)/378(4) of Cr.P.C., praying that the High Court may be pleased to present this Memorandum of Criminal Appeal ment in S.C.No.235 of 2006 on the file of the Assistant Sessions Judge, Nandikotkur, dated 1st day of August, 2006 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused(Respondents) for the offences with which they were IA NO: 1 OF 2009(CRLAMP 655 OF 2009 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 to condone the delay of 417 days in presenting an appeal against the order of acquittal of the accused/respondent in S.C.No.235 of 2006 on the fil Assistant Sessions Judge, Nandikotkur, dated 1.8.2006 ellant: IN THE HIGH COURT OF ANDHRA PRADESH [3369] FOURTH DAY OF OCTOBER MALLIKARJUNA RAO REP BY THE PUBLIC PROSECUTOR, HIGH ...APPELLANT SHAIK AKBAR BASHA, S/o Shaik Thummular Hussain Miah, Pagidyala ...RESPODENT praying that the High riminal Appeal ment in S.C.No.235 of 2006 on the file of the Assistant t, 2006 and prays that this Hon'ble Court may be pleased to set aside the order of acquittal and convict the accused(Respondents) for the offences with which they were in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 417 days in presenting an appeal against the order of acquittal of the accused/respondent in S.C.No.235 of 2006 on the file of the 2 1. PUBLIC PROSECUTOR (AP) Counsel for the Respondent: 1. S VENKATA SUBBA RAO The Court made the following JUDGMENT: 1. This appeal is preferred by the Appellant / State against the judgment of acquittal rendered by the Sessions Court in Sessions Case No.235 of 2006 on the file of Assistant Sessions Judge, Nandikotkur (for short, ‘the Sessions Court’) by its judgment dated 01.08.2006, acquitted the accused for the offences punishable under section 307 of Indian Penal Code, 1860 (for short, ‘IPC’). 2. Perused the impugned judgment of acquittal rendered by the Sessions Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 7, documents marked Exs.P.1 to P.7 and MO.1. 3. The facts in a nutshell, which give rise to the present appeal, are as follows: The accused and the complainant were engaged in the supply business at Pagidyala. As the complainant's business prospered more than that of the accused, the latter developed a grudge and planned to kill him. On 02.04.2005, with that intent, the accused gave a bottle containing pesticide poison to LW.2, instructing him to deliver it to LW.1 under the pretext that it was given by a doctor. Around 3:00 p.m., LW.2 handed over the bottle to LW.1, who, suspecting something unusual, questioned LW.2 and learned that it was given by the accused. The matter was placed before the village elders (LWs.3 to 5), who suspected the bottle contained poison. Based on the complaint lodged by LW.1, LW.9, the Sub-Inspector of Police registered a case. After investigation, examination of witnesses, and the seizure of the material object, it was sent to the FSL. The FSL report confirmed that the bottle contained phosphide, 3 a rodenticide poison. The accused was arrested on 26.09.2005 and remanded to judicial custody. 4. The Judicial Magistrate of First Class, Nandikotkur, vide orders in PRC No.29 of 2005, has committed the accused to the Court of Sessions, Kurnool, to take up the trial for the offences punishable under Section 307 of the IPC. 5. The learned Sessions Judge of Kurnool Division has taken up the case on file under Section 307 of the IPC against the accused and referred the case to the Court of the Assistant Sessions Judge, Nandikotkur, for disposal according to law. Subsequently, the case in Sessions Case No.235 of 2006 has been numbered. After hearing the Public Prosecutor and the defence counsel, the Sessions court framed a charge against the accused, punishable under Section 307 of IPC, which was read over and explained to him in Telugu, as required under sub-section (2) of section 228 of Cr.P.C. The accused did not plead guilty and claimed to be tried. 6. The learned Sessions Judge examined the accused as required under Section 313 of Cr.P.C., to enable him to consider the evidence that had been led on the part of the prosecution and also appeared against him. However, the accused denied the evidence adduced by the prosecution and reported no defence witnesses on his behalf. 7. After considering the available material on record, the learned Sessions Judge found the accused not guilty of the offences punishable under Section 307 of the IPC and acquitted him. 8. Sir K. Sandeep, learned Assistant Public Prosecutor for the State contends that the prosecution has established the necessary ingredients to constitute an offence punishable under Section 307 IPC against the accused; the learned Judge ought to have adequately considered the evidence of the defacto complainant and the eyewitnesses but instead relied on technicalities 4 and erred in acquitting the accused; the other reasons assigned by the learned Judge for the acquittal are also unsustainable. 9. On the other hand, the learned counsel appearing for the accused supported the findings and conclusions recorded by the Sessions Court. 10. I have heard learned counsel on either side and perused the material on record, including the oral and documentary evidence produced by the prosecution before the Sessions Court. 11. The point for determination is: Was the Sessions Court justified in acquitting the accused? P O I N T: 12. Before re-appreciation of the evidence on record, it is necessary here to mention the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. Shankar V. State of Karnataka 1, at paragraph 26 of the judgment, has held as follows: "26. It is settled legal proposition that in exceptional circumstances the appellate Court, under compelling circumstances, should reverse the judgment of acquittal of the Court below if the findings so recorded by the Court below are found to be perverse i.e. the conclusions of the Court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate Court must bear in mind the presumption of innocence of the accused and further that acquittal by the Court below bolsters the presumption of his innocence." 13. In State of Goa V. Sanjay Thakran & Anr.2, the Hon’ble Supreme Court, while considering the power of the appellate Court to interfere in an appeal against acquittal, after adverting to various earlier decisions on this point, has concluded as under: "16.....while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless 1 (2011) 6 SCC 279 2 (2007) 3 SCC 755 5 the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision 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 and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected with commission of the crime he is charged with.” 14. In Chandrappa and Others V. State of Karnataka3, while considering the similar issue, namely, appeal against acquittal and power of the appellate Court to re-appreciate, review or reconsider evidence and interfere with the order of acquittal, this Court, reiterated the principles laid down in the above decisions and further held that: "42.....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 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 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. 3 (2007) 4 SCC 415 6 (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." 15. It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court, is not warranted. However, the appeal is heard by an appellate court, being the final Court of fact. In that case, it is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power, and the appellate Court is free to arrive at its conclusion, keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to every person, and in criminal jurisprudence, every person is presumed innocent unless proven guilty by a competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate Court should not disturb the findings of acquittal. There is no limitation on the part of the appellate Court to review the evidence upon which the order of acquittal is found and to come to its conclusion. The appellate Court can also review the conclusion arrived at by the Sessions Court concerning both facts and law. While dealing with the appeal against acquittal preferred by the State, the appellate Court must marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. 16. With the above principles in mind, this Court analyze the reasoning and ultimate conclusion of the Sessions Court in interfering with the order of acquittal. 17. PW.1, P. Venkateswarlu, is the informant who lodged the report marked as Ex.P.1 with the police. From the record, it is evident that there is no serious dispute regarding the fact that PW.1 and the accused were running supply 7 shops. PW.1 deposed that in the fourth month of 2005, at about 3:00 or 3:30 p.m., while returning from the MDO office to his shop, PW.2, K. Chand Basha, handed him a bottle. On suspicion, PW.1 placed the said bottle before the village elders, whereupon PW.2 informed him that it had been given by the accused. Then, PW.1 approached the police station and lodged a report on the same day. 18. PW.1 testified that PW.2 gave him a medicine bottle supposedly from a doctor. Suspecting something wrong, PW.1 opened it, smelled poison, and questioned PW.2, who revealed that the accused had given it to him, intending to kill PW.1 by mixing rat poison in liquor due to prior disputes. PW.1 consulted village elders, who asked PW.2 to drink first; upon inquiry, PW.2 admitted it contained rat poison, which was given by the accused. The bottle was then given to the VAO, sealed, and handed to the police. PW.2 testified that the accused gave him the bottle to deliver to PW.1, who identified it as MO.1 19. According to Ex.P.1, the alleged offence occurred on 02.04.2005 at about 3:00 p.m. However, as per the endorsement made by the Investigating Officer, the complaint (Ex.P.1) was received at 8:00 p.m. on 03.04.2005. Thus, it is evident that the prosecution has presented inconsistent versions. According to the testimony of PW.1, he lodged the report marked as Ex.P.1 on the same day, i.e., on 02.04.2005. However, Ex.P.5 (FIR) indicates that the complaint was received on 03.04.2005. This discrepancy creates doubt about the actual date the report was given and whether Ex.P1 is the report actually given. Furthermore, Ex.P.1 does not contain any explanation for the delay in reporting the matter to the police. The Trial Court, taking note of this inconsistency, treated it as one of the grounds to doubt the veracity of the prosecution’s case. Considering this, the Trial Court observed that there was a considerable delay in reporting the matter to the police. PW.1, however, explained that he approached the police only after consulting the village elders. The Sessions Court further observed that, in view of the explanation 8 offered, the possibility of deliberation or false implication could not be ruled out. 20. In Apren Joseph @ Current Kunjukunju and others vs. State of Kerala4, the Hon'ble Supreme Court held that: "It is always better that the F.I.R. is rendered before there in time and opportunity to embellish or before the informant's memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably gives rise to suspicion which puts the Court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. Effect of delay in lodging the F.I.R., would always depend on the facts and circumstances of a given case." 21. In State of M.P. vs. Kriparan5, the Hon'ble Supreme Court held that: "Inordinate and unexplained delay in lodging the F.I.R. is fatal to the case of the prosecution particularly when the facts and circumstances of the case demonstrate such an inference". 22. According to the testimony of PW.1, MO.1 was handed over to the Village Administrative Officer (VAO), sealed in the presence of village elders, and subsequently taken to the police station, where Ex.P1 report was lodged. However, this version of events is inconsistent with the testimonies of PW.5, the Panchayat Secretary, and PW.6, the Investigating Officer. PW.5 stated that he was present in April 2005 when the Sub-Inspector seized MO.1 under Ex.P4 panchanama. PW.6, the Investigating Officer, deposed that on 04.04.2005 he visited PW.1’s shop and seized MO.1 under a mahazarnama in the presence of PW.5. In view of these inconsistencies, the Trial Court expressed doubt regarding the actual seizure of MO.1. While PWs.5 and 6 stated that MO.1 was seized from PW.1’s shop, PW.1 claimed to have handed it over to the VAO after sealing. As the prosecution failed to clarify when and how MO.1 came into the possession of the VAO, the Trial Court found the alleged seizure from PW.1 doubtful and concluded that the prosecution had not established from whom the Investigating Officer actually seized MO.1, 4 AIR 1973 SC 1 5 (2003) 12 SCC 675 9 whether it was seized by the VAO on 02.04.2005 or by the Sub-Inspector of Police in the presence of PW.5 on 04.04.2005. 23. Although the evidence of PWs.1 and 2 indicates that PW.2 informed PW.1 that the accused had given MO.1 to him with the intention of killing PW.1, this crucial fact finds no mention in Ex.P1. Considering this omission, the Trial Court rightly observed that there is a complete variation regarding the material facts between Ex.P1 and the oral evidence, rendering the prosecution’s version of events doubtful as to what exactly transpired. 24. Though PWs.3 and 4 did not support the prosecution's case, they stated that they accompanied PW.1 to the police station. The Trial Court observed, however, that their presence at the time of lodging the report is not mentioned in Ex.P1. It further noted that the prosecution had presented inconsistent versions regarding this aspect. Had PWs.3 and 4 actually been present with PW.1, their names would likely have been recorded in Ex.P1. The Trial Court therefore treated this omission as material, casting doubt on the prosecution's version of events. 25. In Shashidhar Purandhar Hegde V. State of Karnataka6, the Hon’ble Supreme Court held that: 12. The word “contradiction” is of a wide connotation which takes within its ambit all material omissions and under the circumstances of a case, a court can decide whether there is one such omission as to amount to contradiction. 26. It is well settled legal proposition that while appreciating the evidence, the Court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the trial. In S. Govidaraju vs. State of Karnataka7, the Hon’ble Supreme Court held that where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material 6 (2004) 12 SCC 492 7 MANU/SC/0839/2013 10 improvements before the Court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. 27. The Trial Court also observed a significant and unexplained delay in sending the material object to the Court. According to the prosecution, MO.1 was seized on 04.04.2005 but was sent to the Court only on 19.04.2005, resulting in a delay of 15 days in forwarding the material object to the Judicial Magistrate of First Class. The Sub-Inspector of Police offered no explanation for this delay. The Trial Court noted that, given the gravity of the allegations against the accused under Section 307 of the IPC, the Investigating Officer ought to have ensured that the material object was sent to the Court immediately. The failure to do so creates a possibility that the material object could have been tampered with or planted. 28. The Trial Court rightly observed that, although MO.1 contained phosphide and rodenticide, this evidence alone is insufficient to convict the accused under Section 307 of the IPC, particularly in light of the inconsistencies, omissions, and the delay in lodging the report and forwarding the material object to the Court. 29. It is a settled proposition of law that in a criminal trial, suspicion, however grave, cannot take the place of proof. The prosecution must prove its case and establish the charge by adducing convincing evidence to ward off any reasonable doubt about the accused's complicity. 30. The Sessions Court also noted inconsistencies in the prosecution's evidence regarding the exact time the complaint was reported to the police, casting further doubt on the reliability of the version presented. In light of these circumstances, and upon a comprehensive evaluation of the entire evidence, the Sessions Court rightly concluded that the prosecution had failed to prove the guilt of the accused for the offences under section 307 of IPC beyond a reasonable doubt. Consequently, the Sessions Court acquitted the accused of the said charges. 11 31. In a criminal case, the degree of proof is the standard that is required in civil proceedings, and if there is the slightest doubt in the mind of the Court regarding the involvement of the accused person, then the Court should not convict the accused person with such a doubt. Instead, it would be proper for the Court to pass a judgment of acquittal in favour of the accused. When Sessions Court after adequate appreciation of the evidence of witnesses passed a judgment of the acquittal, it would not be appropriate for the appellate Court to disturb the said judgment, unless the said judgment of acquittal is unreasonable, even if two views are possible, then also, the appellate Court should not disturb the said judgment, instead, the Court should upheld the view favoured the accused. 32. It is a cardinal principle of criminal jurisprudence that in an acquittal appeal, if another view is possible, then also the appellate Court cannot substitute its view by reversing the acquittal into a conviction unless the findings of the Sessions Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable. 33. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka8, the Hon'ble Supreme Court has observed the scope of section 378 of the Code as under: “Section 378 Cr.P.C. enables the State to prefer an appeal against an order of acquittal. Section 384 Cr.P.C., speaks of the powers that can be exercised by the Appellate Court. When the trial Court renders its decision by acquitting the accused, the presumption of innocence gathers strength before the Appellate Court. Consequently, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of the first instance has its advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it. Still, it is duty bound to satisfy itself whether the decision of the trial Court is both a possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty and the advantage of having seen the witnesses. 8 2021 (15) SCALE Pg. 184 12 34. So far as the main issue is concerned, that scope of acquittal appeal is well defined by now by series of decisions and the same is not to be repeated time and again, however, one of the recent decision in case of Harbeer Singh V. Sheeshpal9, the Hon’ble Supreme Court laid down that mere fact that another view could also have been possible that cannot be a ground to reverse the acquittal. The powers of High Court are wide enough to turtle the acquittal order, however, some parameters are well defined by series of decisions in which this Court is of the considered opinion that State has not made out any case which would permit this Court to exercise such wide powers. Neither any material irregularity is pointed out nor any perversity is reflecting on the contrary it is reflecting that there is an application of mind on the part of learned Judge as the entire material on record has been dealt with specifically and the principle of appreciation of evidence appears to have been rightly undertaken by the Court below and therefore when such eventuality is reflecting sitting in a jurisdiction dealing with an order of acquittal Court is of the opinion not to interfere with such exercise. The relevant observations of the aforesaid decision in paras:10 and 11 (Cri.L.J.) are reproduced herein after: "10. The above principle has been reiterated by this Court in a number of judicial decisions and the position of law that emerges from a comprehensive survey of these cases is that in an appeal under Article 136 of the Constitution of India, this Court will not interfere with the judgment of the High Court unless the same is clearly unreasonable or perverse or mainfestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record is not a ground for reversing an order of acquittal. 11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond a reasonable doubt lies with the prosecution, and it never shifts. Another golden thread that runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view that is favourable to the accused should be adopted. 9 (2017) CriLJ 169 13 35. Considering the aforesaid set of circumstances and in view of the conjoint reading of the conclusion arrived at in co-relation with the evidence on record, this Court is of the considered opinion that the prosecution makes out no case to establish a definite guilt of the respondent / accused. 36. It is a settled principle of law that if the Trial Court takes the view, it should not be reversed, even if another view is possible. The view taken by the Trial Court is a plausible one. Therefore, considering the facts and circumstances of the case, this Court is not inclined to reverse the Trial Court's finding. 37. The Sessions Court rightly reached its conclusion, providing sound and justifiable reasons. Therefore, the appellant’s request for interference lacks merit. A re-appreciation of the evidence reveals no misdirection or misinterpretation by the Sessions Court. Upon careful reconsideration, there is no flaw in the findings of fact by the Sessions Court. Therefore, the acquittal of the respondent/accused cannot be interfered with. Accordingly, the appeal against the acquittal is dismissed, and the judgment of acquittal is confirmed, and there is no reason to interfere with the judgment of the Sessions Court. Accordingly, the point is answered. 38. In view of the above and for the reasons stated above, the present Criminal Appeal No.1417 of 2009 fails and the same deserves to be dismissed and is dismissed, accordingly. The judgment and order of acquittal passed by the learned Assistant Sessions Judge, Nandikotkur, in Sessions Case No.235 of 2006, dated 01.08.2006, stands confirmed. Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed. _____________________________ JUSTICE T. MALLIKARJUNA RAO Date: 24.10.2025 SAK 14 THE HONOURABLE SRI JUSTICE T. MALLIKARJUNA RAO CRIMINAL APPEAL NO: 1417 of 2009 Date: 24.10.2025 SAK