APHC010056612009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3327] THURSDAY, THE TWENTY SIXTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE K SREENIVASA REDDY CRIMINAL APPEAL NO.1087 OF 2009 Between: State of AP., rep. by the Public Prosecutor. ...APPELLANT AND Talluru Subbaiah and Others ...RESPONDENTS Counsel for the Appellant: 1. PUBLIC PROSECUTOR (AP) Counsel for the Respondents: 1. D SANGEETHA REDDY The Court made the following Judgment: 2 THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL APPEAL No.1087 OF 2009 JUDGMENT: This Criminal Appeal has been preferred by the State against the judgment, dated 13.05.2005, passed in S.C.No.27 of 2002 by the learned Principal Assistant Sessions Judge, Nellore, whereby and whereunder A3, A8 to A10 and A12 to A14 were found not guilty of the offence under Section 147 IPC; A1, A2 and A4 to A6 were found not guilty of the offence under Section 148 IPC; A5 was found not guilty of the offence under Section 307 IPC; A1 and A2 were found not guilty of the offence under Section 326 IPC; A4 was found not guilty of the offence under Section 324 IPC: A6 was found not guilty of the offence under Section 324 IPC, A1 to A4, A6, A8 to A10 and A12 to A14 were found not guilty of the offence under Section 307 read with 149 IPC; A3 to A6, A8 to A10 and A12 to A14 were found not guilty of the offence under Section 326 read with 149 IPC and A1 to A3, A5, A8 to A10 and A12 to A14 were found not guilty of the offence under Section 324 read with 149 IPC and, accordingly, acquitted them of the said charges. 2. Case of the prosecution, briefly, is as follows. i) There is illegal intimacy between A6 and LW.2 – Uppu Audilakshmamma and due to which disputes arose between the two families and rioting took place between them six months prior to 3 24.10.1994. While so, on 24.10.1994, at about 6.00 a.m., all the accused formed themselves into an unlawful assembly armed with deadly weapons like axes, spheres, knives and iron rods, with intent to kill LW1- Uppu Venkata Subbaiah. In pursuance of their common object, all the accused went upon LW1, and A1 axed LW1 on his left leg, A2 axed on the left leg and caused grievous injuries. LW1 requested them not to kill. Then, A4 sphered LW1 on his right leg, A5 tried to hack him on the head; then LW1 raised his right hand and the knife hit on his palm and caused grievous injury. When LWs 2 and 3 went to the rescue of LW1, all the accused beat LW3 with hands and legs, A6 beat LW2 with iron rod on the right side of her forehead and caused simple injury. LWs.4 and 5 witnessed the incident. On seeing them, the accused left the scene of offence. LWs.6 and 7 shifted LWs.1 and 2 to the Government Headquarters Hospital, Nellore. ii) On receipt of hospital intimation, the Sub-Inspector of Police, Nellore Rural Police Station, proceeded to the Government Headquarters Hospital, Nellore, recorded the statement of LW1 and basing on the same, registered the same as a case in Crime No.165 of 1994 and submitted copies of FIR Ex.P7 to all concerned. PW.7 - the Civil Assistant Surgeon, Government Headquarters Hospital, Nellore, who examined PW.1 and LW.1, issued wound certificates Exs.P4 and P5. 4 After completion of investigation, the charge sheet was filed against the accused for the aforesaid offences. 3. Learned IV Additional Judicial Magistrate of First Class, Nellore took cognizance of the case against the accused for the offences punishable under Sections 147, 148, 324, 326, 307 read with 149 IPC and registered the case as PRC No.37 of 1996. As the offence punishable under Section 307 IPC is exclusively triable by the Court of Session, the learned Magistrate, after complying with the due procedure prescribed under law, committed the said PRC No.37 of 1996 to the Court of Session, Nellore. The said case was numbered as SC No.27 of 2002 and thereafter the same was made over to the Court of the Principal Assistant Sessions Judge, Nellore for disposal according to law. 4. Case against A7 was abated before committal on 20.05.1996 and case against A11 was split up and numbered as SC No.380 of 2004. 5. On appearance of the accused, charges under Sections 147, 148, 307, 326 and 324 read with 149 IPC were framed against A1 to A6, A8 to A10 and A12 to A14, contents of the charges were read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 6. In support of its case, the prosecution examined PWs.1 to 8 and got marked Exs.P1 to P8. 5 7. On behalf of the prosecution, A1 to A6, A8 to A10 and A12 to A14 were examined under Section 313 Cr.P.C., explaining the incriminating evidence found against them in the evidence of prosecution witnesses, for which they denied. 8. On behalf of the defence, DW1 was examined and Exs.D1 to D4 were marked. 9. The learned Assistant Sessions Judge, on appreciation of entire oral and documentary evidence on record, found the respondents/ accused not guilty of the charges levelled against them and, accordingly, acquitted them of the said charges, vide impugned judgment dated 13.05.2005. Challenging the said judgment, the State preferred the present Criminal Appeal. 10. Heard. Perused the material on record. 11. Learned Additional Public Prosecutor appearing on behalf of the State submits that the evidence of PWs.1 to 3 is consistent and their evidence cannot be rejected on the ground that they are related to the de facto complainant. He further submits that there is clinching evidence to convict the accused persons, the trial Court has not properly appreciated the evidence on record in right perspective and erred in acquitting the accused. 6 12. On the other hand, learned counsel for the respondents/accused submits that the prosecution miserably failed to mark the statement of LW.1 and to prove the contents therein, and that the evidence of PWs.1 and 2 is contradicting with each other and there is no cogent and clinching evidence to prove the guilt of the accused for the alleged offences. The learned Assistant Sessions Judge has rightly found the accused not guilty of the charges levelled against them and accordingly acquitted them of the said charges and there are no reasons to interfere with the same. 13. Now, the point that arises for determination is whether the prosecution is able to bring home the guilt of the accused of the charges levelled against them beyond reasonable doubt. 14. This is an appeal against an Order of acquittal. There is a presumption available under law that an accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because presumption available under law is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse 7 finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 15. On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. the State of Punjab1, wherein it was held as follows: (para 8) “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on „compelling and substantial reasons‟ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, „compelling reasons‟ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words „compelling reasons‟. In later years the Court has often avoided emphasis on „compelling reasons‟ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.” 16. In the case on hand, LW-1 - Uppu Venkata Subbaiah, who is the de facto complainant and injured, died. Hence, LW.2 – Uppu Audi 1 AIR 1962 SC 439 8 Lakshmamma, daughter-in-law of said Uppu Venkata Subbaiah, was examined as PW.1. PW.1 deposed that about 10 years back at about 06.00 AM, while she was attending to the domestic work, she heard cries of her father-in-law (LW.1) from the backyard, and then, herself and her co-sister PW.2 rushed to the backyard and noticed that her father-in-law was lying with injuries. She also noticed all the accused around her father-in-law armed with rods and axes and her father-in-law was requesting the accused not to kill and beat him. It is her further evidence that when she and PW.2 went to the rescue of their father-in-law, A6 beat her with an iron rod on the right side of her forehead, and A6, A5, A3 and A13 kicked her and PW.2, and on hearing the galata, her husband (PW.3) and neighbours came to the place of occurrence and shifted her father-in- law to hospital. She stated that she does not know as to why her father- in-law was beaten by the accused. 17. PW.2, co-sister of PW.1, deposed that about 10 years back at about 06.00 AM, their father-in-law (LW.1) went to attend calls of nature and at that time, she and PW.1 were in the house and when they heard cries of her father-in-law, they went to the backyard and noticed that their father-in-law was lying with injuries. A1, A12, A6, A13 and A3 were beating their father-in-law with iron rods and axes and other accused were armed with axes, and knives. A11 and A7 were also present there. When she and PW.1 went to the rescue of their father-in-law (LW.1), A6 9 beat PW.1 with an iron rod on the right side of her forehead and the accused beat her with hands and legs. PW.3, husband of PW.1, came to the scene of offence and shifted the injured and PW.1 to the Government Headquarters Hospital, for treatment. 18. PW.3 deposed that on the date of the offence, while he was in the bazaar, he noticed some people running towards the backyard of his house. On that, he also ran towards the backyard of his house and noticed his father (LW.1) lying with injuries. He also noticed all the accused coming out from the scene of offence armed with rods, axes and knives. PWs.1 and 2 were standing nearby his father. His father sustained injuries on both his legs. PW.1 sustained injury on her forehead. When he enquired his father about the injuries, he informed that the accused beat him. He shifted his father to the hospital. He does not know the reasons as to why the accused beat his father. 19. PWs.4 and 5 did not support the case of the prosecution and they were treated as hostile by the prosecution. 20. According to PW.1, by the time she noticed her father-in-law (LW.1) was lying on the ground with injuries, all the accused were around her father-in-law armed with rods and axes. According to PW.2, herself and PW.1 went to the backyard and noticed their father-in-law with injuries. She further stated that she noticed A1, A12, A6, A13 and A3 beating her father-in-law with rods and axes and the other accused armed with axes, 10 and knives. The evidence of PW.2 is contradicting with the evidence of PW.1 because PW.1 never stated that she noticed the accused beating her father-in-law (LW.1). If the evidence of PW.1 is correct, PW.1 also could have stated that she also witnessed those accused beating her father-in-law (LW.1), as deposed by PW.2. At first instance, PW.2 categorically stated that she noticed her father-in-law lying with injuries. This itself clearly indicates that by the time PWs.1 and 2 reached the scene of offence, their father-in-law (LW.1) had already sustained injuries and was lying on the ground. PW.2 has not deposed any individual overt acts. If PW.2 saw A1, A12, A6, A13 and A3 beating her father-in-law (LW.1), she could have stated the individual overt acts. Further more, except stating that the above accused beat her father-in-law (LW.1) with iron rods and axes, no specific overt-acts are attributed by P.W.2. Had she actually witnessed the incident, she ought to have stated specific overt acts. Therefore, the evidence of PW.2 is highly doubtful, and in the light of the contradictions in the evidence of P.Ws.1 and 2, no credence can be given to the evidence of P.W.2 to base a conviction. 21. Admittedly, PWs.1 to 3 are closely related to LW.1- Uppu Venkata Subbaiah. PWs.1 to 3 stated that LW.1- Uppu Venkata Subbaiah sustained injuries in the hands of the accused. According to PW.3, he shifted his father (LW.1) to the Government Headquarters Hospital for treatment. The then Police Constable of Nellore Rural Police Station was 11 examined as PW.8. According to him, on 24.10.1994, he accompanied the then Sub-Inspector of Police of Nellore Rural Police Station namely J.Rambabu to the Government Hospital, Nellore to assist the investigation in the present crime and the said Sub-Inspector of Police registered the crime and issued FIR. He identified the signature of the then Sub-Inspector of Police on the FIR Ex.P7, which was marked subject to objection, as the prosecution failed to examine the said Sub-Inspector of Police though he is alive and available to be examined on behalf of the prosecution. 22. It is the contention of the learned defence counsel that non- examination of L.W.12, the then Sub Inspector, is fatal to the case of prosecutio and Ex.A7 could not have been marked through PW.8. In the cross-examination, PW.8 fairly conceded that Ex.P7 FIR does not contain his signature. In the absence of his signature on Ex.P7, the evidence of PW.8, who is said to have assisted the then Sub-Inspector of Police during the course of investigation, is not sufficient. According to PW.8, the then Sub-Inspector of Police examined LW.1- Uppu Venkata Subbaiah, PW.1 and also two other independent witnesses. PW.8 in his cross-examination categorically stated that the in-charge Head Constable of the Out-post recorded the statement of LW.1- Uppu Venkata Subbaiah and obtained the signature of LW.1- Uppu Venkata Subbaiah on the statement. But, the said Head Constable was not examined by the 12 prosecution to prove the contents in the said statement. The prosecution also failed to examine LW.12, the then Sub-Inspector of Police. Therefore, the prosecution miserably failed to mark the statement of LW.1- Uppu Venkata Subbaiah and to prove the contents therein. Unless the statement of LW.1- Uppu Venkata Subbaiah is marked and proved, the contents therein with regard to the injuries sustained by PWs.1 and 2 in the hands of the accused, as stated by them, also could not be believed. No document is filed by the prosecution to prove that LW.12, the then Sub Inspector, went abroad and as to why the Head Constable who obtained the signature of LW.1- Uppu Venkata Subbaiah on the statement was not examined by the prosecution for the reasons best known to them. 23. According to PW.8, he also visited the scene of offence along with the then Sub-Inspector of Police, inspected the scene of offence in the presence of mediators and he drafted two panchanamas Exs.P3 and P8. He conceded that he never signed on any paper during the course of investigation to show that he assisted the Sub-Inspector of Police. Exs.P3 and P8 also do not contain his signatures to prove that he drafted the same. When there is no signature of PW.8 on Exs.P3 and P8, it cannot be said that PW.8 drafted the said documents and was present during the course of investigation and assisted LW.12, the then Sub- Inspector of Police. 13 24. According to PW.7 – the Civil Assistant Surgeon, Government Headquarters Hospital, Nellore, on 24.10.1994 at about 01.10 pm, he examined PW.1 and found one abrasion on the right side of her forehead. He also examined LW.1- Uppu Venkata Subbaiah on the same day at 09.10 am and found injury Nos.1 to 6. Injury Nos.1, 3 and 5 on LW.1- Uppu Venkata Subbaiah are grievous in nature and other injuries are simple in nature. He issued wound certificates Exs.P4 and P5. However, in the case on hand, there is no substantive evidence of injured LW.1- Uppu Venkata Subbaiah. 25. Further, DW.1, who was examined on behalf of the accused, was cited as LW.9 in the list of witnesses, but the prosecution failed to examine him on its behalf for the reasons best known to them. 26. Since the prosecution failed to mark the statement of LW.1 and to prove the contents therein and the evidence of PWs.1 and 2 is contradicting with each other, it can safely be inferred that there is no cogent and clinching evidence to prove the guilt of the accused for the offences alleged against them. In view of the aforesaid facts and circumstances of the case, this Court is of the opinion that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. The impugned judgment passed by the learned Assistant Sessions Judge is on correct lines and there are no compelling or substantial reasons to interfere with the Order of acquittal passed by the 14 trial Court. The Criminal Appeal is devoid of merit and the same is liable to be dismissed. 27. Accordingly, the Criminal Appeal is dismissed, confirming the Judgment dated 13.05.2005 passed in SC No.27 of 2002 by the learned Principal Assistant Sessions judge, Nellore. As a sequel thereto, the miscellaneous petitions, if any, pending in this Criminal Appeal, shall stand closed. _____________________________ JUSTICE K. SREENIVASA REDDY 26.06.2025 PKR/DRK 15 THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY 299 CRIMINAL APPEAL No.1087 OF 2009 Date: 26.06.2025 PKR/DRK