(Prayer: Appeal under Sections 372/374(2)/378(4) of Cr.P.C., praying that the High Court may be pleased to entertain this Criminal Appeal against the acquittal in S.C. No. 66 of 2006 of the Hon’ble Assistant Sessions Judge’s Court at Narasapuram, dated 03.08.2007, and to set aside the order of acquittal and convict the accused (respondents) for the offences with which they were charged.

IA NO: 1 OF 2008 (CRLAMP 1710 OF 2008)

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 250 days in presenting the appeal against the order of acquittal of the accused-respondents in S.C. No. 66 of 2006 on the file of the Assistant Sessions Judge, Narasapuram, West Godavari District.)

Oral Judgment:

1. The appeal is preferred by the State challenging the Judgment dated 03.08.2007 delivered in S.C.No.66 of 2006 on the file of the Assistant Sessions Judge, West Godavari at Narsapuram.

2. The Assistant Sessions Judge found the respondents/A1 to A6 not guilty for the offence under Section 307 of IPC and, accordingly, acquitted them.

3. For the sake of convenience, the parties hereinafter are referred to as they were arraigned before the learned Sessions Court.

CASE OF THE PROSECUTION:

4. The case of the prosecution is that Potti Margadarshi (PW-1), while returning to his home on 24.09.2002 at about 5.15 p.m., after visiting Smt. Konala Lakshmamma, who was suffering from ill health, was accompanied by Potti Krupa Samson (PW-2). Both of them were passing through the house of the accused/A1 and, noticing PW-1, the accused/A1 to A6, armed with deadly weapons like knives and an iron rod, attacked PW-1 with an intention to kill him. The accused/A3 sprinkled chilli powder in the eyes of PW-1 and hacked him on the left side of his back with a knife. The accused/A1 hacked PW-1 with a knife on the chest and also on the belly. A5 and A6, armed with knives, hacked PW-1 on the left hand. The accused/A4, armed with an iron rod, beat PW-1 on the head. Thereby, all the accused/A1 to A6 attempted to murder PW-1 and caused bleeding injuries.

5. PW-1 was shifted to the Government Hospital at Narasapuram. The mother of PW-1 went to Mogalturu Police Station and presented a report to the Sub-Inspector of Police (PW-11) at about 8.00 p.m. He recorded the same as Ex. P8—FIR and conducted the investigation.

6. During the course of investigation, PW-11 examined PWs-2, 3 and others. He visited the scene of the offence on 25.09.2002 and prepared Ex.P1—Observation Report in the presence of mediators. He also prepared Ex.P9—Rough Sketch of the scene of the offence. He examined PW-7 and two others at the scene of the offence.

7. On 26.09.2002, he examined PWs-4, 5 and 6 and recorded their statements. On 06.10.2002, he examined PW-1 and recorded his statement. On 23.10.2002, on receipt of information, he visited Nakkavaripeta along with mediators. He arrested A3 and, based on her statement, seized a knife and MO-5. On 19.05.2003, he received the wound certificate issued by the Doctor (PW-10). After conclusion of the investigation, he laid the police report (charge-sheet) before the Jurisdictional Magistrate. It was registered as PRC No. 10 of 2005. The Magistrate committed the case under Section 209 Cr.P.C. to the Sessions Division, West Godavari. It was registered as S.C. No. 66 of 2006 and made over to the Court of the Assistant Sessions Judge at Narasapuram for trial in accordance with law.

8. The Assistant Sessions Judge charged the accused/A1 to A6 for the offence under Section 307 IPC. The accused/A1 to A6 denied the charge and claimed to be tried.

EVIDENCE FOR THE PROSECUTION:

9. The prosecution, to substantiate the charge, examined PWs-1 to 12 respectively and got marked Exs.P1 to P10 and MOs-1 to 5. Apart from these, Exs.D1 & D2 were also marked during the cross-examination of above prosecution witnesses.

10. The accused/A1 to A6 were examined under Section 313 Cr.P.C. regarding the incriminating circumstances appearing against them from the evidence for the prosecution. They denied the same as not true and correct. No oral evidence was adduced for the defence.

FINDING OF THE SESSIONS COURT:

11. The Assistant Sessions Judge, on consideration of the above evidence, found the accused/A1 to A6 not guilty for the offence under Section 307 IPC, and accordingly, acquitted them. Hence, the present appeal is preferred by the State.

12. Heard Sri C.Panini Somayaji, learned Additional Public Prosecutor representing the State/appellant, Sri Jakkamsetti Ravindra, learned counsel for the respondents/A1 to A6, and Sri G.Vijaya Saradhi, learned Senior Member of the Bar appearing as Amicus Curiae.

13. In the light of above circumstances, the point that would arise for consideration in this Criminal Appeal is as under:

                  “Whether the judgment of the trial Court is not sustainable”?

SUBMISSIONS ON BEHALF OF THE STATE:

14. Learned Additional Public Prosecutor would argue that the evidence of injured witness, i.e., PW-1 established the overt acts committed by the accused/A1 to A6. The evidence of PWs-3 and 4, the eyewitnesses, corroborated the testimony of PW-1 about the manner in which the incident occurred and the overt acts committed by the accused. The evidence of doctor established that the injuries suffered by the victim were grievous in nature and were caused by deadly weapons like knives and an iron rod.

15. Therefore, the testimony of victim, corroborated by the eyewitnesses and medical evidence, proved the charge, but the trial Court did not appreciate the evidence in proper perspective. The finding of the trial Court is based on surmises and presumptions, which are not based on evidence. Therefore, it led to travesty of justice. Therefore, this is a fit case to interfere by this Court to set aside the judgment of the trial Court regarding acquittal. SUBMISSIONS ON BEHALF OF THE RESPONDENTS/ACCUSED

16. Sri G. Vijaya Saradhi, learned Amicus Curiae, would argue that the evidence of the victim would show that he disowned the report presented by his mother, stating that she did not present any such report to the police. Her signature was obtained on a blank paper and it was filled up by the police according to their whims and fancies. PW-1 went to the extent of stating that the police case does not disclose the true facts and that he filed a private case. Therefore, PW-1 attempted to say that the police case is not based on true facts. He deposed a different version; the overt acts deposed by him are different from the case of the prosecution. The eyewitnesses also, in their testimony, deposed different overt acts. The defence proved that the overt acts deposed by PW-1 or the eyewitnesses are omissions as contemplated under Section 162 Cr.P.C., amounting to material contradictions. Therefore, the evidence on record in the form of PWs-1, 3 and 4 has been impeached as per Section 155(3) of the Indian Evidence Act, as their former statements are inconsistent with their evidence before the Court.

17. In that view of the matter, the trial Court opined that the credit of the said witnesses was impeached. Hence, did not believe their testimony and concluded that the prosecution failed to prove the charge beyond reasonable doubt.

18. In that view of the matter, the view taken by the trial Court is also possible based on the evidence on record, the appellate Court shall not disturb the opinion of the trial Court, in the light of judgment of the Hon’ble Apex Court in the case of N.Vijay Kumar Vs. State of Tamilnadu((2021) 3 Supreme Court Cases 687.).

19. Learned counsel for the accused adopted the same.

20. PW-1 is the injured witness in the case. During his chief examination, he deposed certain overt acts to connect the respondents/accused with the charge for the offence under Section 307 IPC.

21. The question is whether such overt acts were stated before the police during the course of investigation. PW-1, in his cross-examination, admitted that he did not state those overt acts before the police. In fact, he deposed that the police did not record his statement either at Mogalturu Police Station or at Narasapuram Hospital. According to him, the police recorded his statement after 10 days of the incident, i.e., on 07.10.2002, after he was discharged from Swathantra Hospital at Rajamahendravaram. The Investigating Officer deposed that he visited the said hospital after two (02) weeks and examined PW-1 therein.

22. The evidence of PWs-3, 4 and other witnesses would disclose that, soon after the incident, PW-1, accompanied by eyewitnesses and relatives, visited Mogalturu Police Station. At that time, PW-1 was conscious and coherent to make a statement. In fact, he was conscious till he was admitted in Swathantra Hospital at Rajamahendravaram, as per the evidence on record. The Investigating Officer would say that the mother of PW-1 came to the Police Station at about 8.00 p.m. on that day and presented a report. However, the evidence of PW-1 shows that his mother did not give any such report. The evidence of the Investigating Officer shows that PW-1 or the eyewitnesses did not come to the Police Station soon after the incident.

23. All these facts and circumstances would create a reasonable doubt as to what had happened soon after the incident, i.e., whether PW-1 and others went to the Police Station soon after the incident or whether PW-1 was shifted to the hospital. If he had come to the Police Station soon after the incident, why did the police not record the statement of PW-1 and register a case immediately? Why did the police wait till 8.00 p.m. to register the case and later register it as if the mother of PW-1 had presented a report?

24. All these circumstances would show that after the incident, deliberations and discussions took place among PW-1, eyewitnesses and family members. Later, police registered the case at 8:00 p.m., as if the mother of PW-1 had presented the report.

25. These circumstances would create a reasonable doubt that, based on deliberations and discussions, the FIR came into existence; yet PW-1 was not satisfied and filed a private case later, for the best reasons known to him.

26. The evidence of PW-1, PW-3 and PW-5 would establish that the overt acts attributed against the accused in their testimony were not stated earlier in their statements recorded by the police. They did not state those overt acts during their statements recorded by the police. The defence successfully proved that the overt acts stated by PW-1, PW-3 and PW-4 are omissions amounting to material contradictions as laid down under Section 162 Cr.P.C. rightly submitted by the learned Amicus Curiae. Therefore, no credit can be attached to such statements, as they are improved statements made before the Court below.

27. Section 155 of the Indian Evidence Act, 1872 deals with impeachment of the credit of a witness. It states that the credit of a witness may be impeached in three ways by the adverse party or, with the consent of the Court, by the party who calls him.

                  1. by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;

                  2. by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence;

                  3. by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.

28. Section 145 of the Indian Evidence Act, 1872 deals with cross- examination as to previous statement in writing.

                  “It says that a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved.”

29. In the case on hand as mentioned above, the defence successfully confronted PWs-1, 3 and 4 with their previous statements made in writing by the Investigating Officer (PW-11) during the course of investigation. It is established that the said witnesses did not depose or did not state the overt acts, which they deposed before the Court, in their previous statements. They deposed a new version before the Court below. Hence, it is an omission amounting to contradiction as laid down under Section 162 Cr.P.C.

30. In the light of the foregoing circumstances, the trial Court did not believe the testimony of PWs-1, 3 and 5 and extended the benefit of doubt. On consideration of the evidence on record discussed above and other material, this Court is of the considered opinion that the view taken by the trial Court is a possible view. Therefore, in an appeal against acquittal, the appellate Court shall not interfere with the opinion of the trial Court if the view expressed by the trial Court is a possible view, based on the evidence.

CONCLUSION:

31. In those circumstances, the order of acquittal recorded by the trial Court is sustainable and does not require any interference by this Court. Therefore, the appeal is liable to be dismissed.

RESULT:

32. In the result, the Criminal Appeal is dismissed. The assistance rendered by Sri G. Vijaya Saradhi, learned Amicus Curiae, merits appreciation and is accordingly placed on record. This judgment be certified to the trial Court, as per Section 405 of Cr.P.C.

As a sequel, miscellaneous applications pending, if any, shall stand closed.