(Prayer: Appeal under Section 378(1) & (3) of Cr.P.C praying that the High Court may be pleased to present this Memorandum of Criminal Appeal against the Judgment in S.C.No.74/2005 on the file of the Assistant Sessions Judge, Nuzvid, dt.13.10.2008 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 charged.

IA NO: 1 OF 2009(CRLAMP 2218 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 (191) days in presenting the appeal against the order of acquittal of the accused / respondent in S.C.No.74/2005 on the file of the Assistant Sessions Judge, Nuzvid, dated 13.10.2008)

1. This appeal, under section 378(1) and (3) of Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C’) is preferred by the Appellant / State against the judgment of acquittal rendered by the learned Assistant Sessions Judge, Nuzvid (for short, ‘the trial Court’) in Sessions Case No.74 of 2005 by its judgment dated 13.10.2008 acquitted the accused for the offence punishable under section 341 of Indian Penal Code, 1860 (for short, ‘IPC’) against A.1 to A.3, under Section 326 of IPC against A.3 and under Section 307 of IPC against A.1 and under Section 326 and 307 r/w 34 IPC against A.2.

2. Perused the impugned judgment of acquittal rendered by the Trial Court, which is challenged under this appeal. It consisted of evidence of PWs.1 to 8 and documents Exs.P.1 to P.7 and M.Os.1 to 4 were marked. On behalf of the accused, no oral or documentary evidence was adduced.

3. The facts in a nutshell, which give rise to the present appeal, are as follows:

                  P.W. 1, Pinapati Veladri, an active member of the Congress Party and the proprietor of a Fair Price Shop in Vavilala Village, was the subject of a rumour alleging that he had developed an illicit intimacy with the wife of A.1. Aggrieved by this rumoured relationship, the accused are said to have nurtured a grudge against P.W.1 and awaited an opportunity to eliminate him. On the night of 22.05.2003, P.W.1 attended the marriage function of the son of P.W.6, Chalasani Basavayya, at the latter’s residence, accompanied by P.W.2, Madugula Pedda Krishna, and P.W.3, Pinapati Jakarayya. After the dinner, at about 11:30 p.m., while they were returning home and reached near the house of A.1, A.1 to A.3 suddenly attacked P.W.1, armed with sickles, dragged him into the premises of A.1’s house, and wrongfully restrained him. A.2 allegedly held P.W.1 by folding his hands behind his back; A.3 inflicted a cut on the nose of P.W.1 with a sickle; A.1 cut his right ear and also struck his left shoulder. A.1 further attempted to sever the neck of P.W.1, resulting in a minor cut to his left ear. P.Ws.2 and 3 witnessed the incident. L.W.4 Appa Rao, L.W.5 Narasaiah, and P.W.4 Tati Butchayya were aware of the rumours concerning P.W.1 and A.1’s wife, and they subsequently learnt of the occurrence. P.W.1 thereafter lodged a complaint, marked as Ex.P1, upon which the Police registered a case, conducted an investigation, and subsequently filed the Charge Sheet.

4. The learned Judicial First Class Magistrate, Tiruvur, has taken on file as P.R.C. No.18 of 2003 under Sections 307, 326, 341 r/w 34 IPC against the accused. On appearance, furnished the copies of the documents to the accused under Section 207 Cr.P.C., and committed to the Session Court. The trial Court framed the charges for the offence punishable under Section 341 of IPC against A.1 to A.3, under Section 326 of IPC against A.3 and under Section 307 of IPC against A.1 and under Section 326 and 307 r/w 34 IPC against A.2, read over and explained to the accused. They pleaded not guilty and claimed a trial.

5. The Trial Court examined the accused as required under Section 313 Cr.P.C., to enable it to consider the evidence led on behalf of the prosecution and against them. But the accused denied the evidence adduced by the prosecution. After the conclusion of arguments and upon perusal of the material, the trial Court found the accused not guilty and acquitted them.

6. The learned Assistant Public Prosecutor for the Appellant / State contends that the trial court erred in failing to appreciate that the essential ingredients of the offence under Sections 341, 326, 307, 326, 307 r/w.34 of IPC were made out. He further contends that the learned trial Court erred in disbelieving the evidence of prosecution witness, which is cogent and reliable and the Trial Court's disregard of prosecution evidence renders the acquittal unsustainable.

7. None appeared on behalf of the Respondents/Accused despite being afforded sufficient opportunities to prosecute the appeal.

8. I have heard learned Assistant Public Prosecutor and carefully perused the material available on record, including the oral and documentary evidence produced by the prosecution before the Trial Court.

9. The point for determination is:

                  Was the Assistant Sessions Court justified in acquitting the accused?

P O I N T:

10. 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 ((2011) 6 SCC 279) , 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."

11. In State of Goa V. Sanjay Thakran & Anr.( (2007) 3 SCC 755), the Hon’ble Supreme Court while considering the power of 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 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 characterised 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.”

12. With the above principles in mind, this court analyse the reasoning and ultimate conclusion of the Assistant Sessions Court in interfering with the order of acquittal.

13. PW.1, the victim and de facto complainant, lodged the report marked as Ex.P1 with the police. The Trial Court observed that although PW.1 is the author of Ex.P1, he had surprisingly altered his version during trial with respect to the scene of offence, the weapons allegedly used by the accused, and other material facts stated in Ex.P1. This inconsistency was one of the primary reasons for the Trial Court to disbelieve the prosecution’s case. To assess the correctness of the Trial Court’s conclusion, this Court has examined the evidence of PW.1 in comparison with the contents of Ex.P1. According to his testimony, A.1 to A.3 surrounded him and took him to the house of A.1, while  PW.3 was at a distance of about 30 feet. PW.1 further stated that A.1 to A.3 also brought PW.2 into A.1’s house, and at that time, they were armed with weapons. PW.1 further testified that these weapons (MOs.3 and 4) were lying on the floor when he was taken inside the house. However, the contents of Ex.P1 reveal a different version. In the report, PW.1 stated that on 20.05.2003, after PWs.1 to 3 attended a marriage function at the house of PW.6 and were returning at about 11:30 p.m., PW.3 was walking slightly ahead of PWs.1 and 2 when the accused suddenly surrounded them with sharp-edged sickles typically used for cutting palmyrah leaves. The Trial Court, upon comparing PW.1’s testimony with Ex.P1, correctly noted the inconsistency: while Ex.P1 states that A.1 to A.3 were armed with sickles and attacked near the house of A.1, PW.1 testified at trial that the attack occurred inside A.1’s house and that the weapons (MOs.3 and 4) were lying on the floor at that time.

14. Another inconsistency pointed out in the evidence of PW.1 relates to his narration of the incident. PW.1 testified that all the family members were residing in the same house, and that when A.1 was taken inside, the wife and children of A.1 came out of the house, after which A.1 bolted the doors from within. However, Ex.P1 states that the alleged incident occurred outside the house of A.1, whereas PW.1’s testimony shows the incident took place inside the house of A.1. PW.1 testified that he lost consciousness in the house of A.1 and regained it only at the Government Hospital, Tiruvur. The Trial Court correctly noted that, according to PW.1’s earlier version, he had been taken by PWs.2 and 3 to the Tiruvur Police Station, where he furnished the report marked as Ex.P1, and where the police seized his blood-stained shirt and banian, marked as MOs.1 and 2. The Trial Court pointed out that, based on PW.1's version, he allegedly lost consciousness immediately after the incident, and he regained consciousness only at the Government Hospital. The Trial Court also observed that if PW.1 had lost consciousness inside A.1’s house during the incident and regained consciousness only at the Tiruvur Hospital, it is unclear how he could have dictated the contents of Ex.P1 to the scribe and handed it over to the Tiruvur Police before being referred to the hospital for treatment. The Trial Court therefore observed that the lodging of Ex.P1 before PW.1 regaining consciousness appears wholly improbable and just far away from the truth.

15. Another discrepancy highlighted by the Trial Court pertains to the contents of Ex.P1, wherein it is stated that A.1 belongs to a rival group that bore a grudge against PW.1 and was allegedly waiting for an opportunity to take his life. Ex.P1 further recites that PW.1 had been working with the Congress Party for the past two years, assisting needy villagers, and that A.1 belonged to an opposing faction. However, in his testimony before the Court, PW.1 stated that he had no enmity with A.1, that they had never quarrelled at any point, and that neither had contested for any panchayat post against the other. PW.1 also clarified that he had never applied for a fair price shop dealership in competition with A.1. In light of these contradictions between the statements recorded in Ex.P1 and the evidence given in Court, the Trial Court rightly concluded that A.1 harboured no grudge against PW.1.

16. Another discrepancy pointed out by the Trial Court in the evidence relates to the use of weapons. According to Ex.P1, A.1 and A.3 used their sickles during the commission of the offence, and it is specifically stated that they used different sickles. However, in his oral testimony, PW.1 stated that A.3 first cut his nose with his sickle, after which A.1 took the same sickle from A.3 and used it to cut his right ear and inflict other injuries. Relying on this testimony, the Trial Court observed that, as per PW.1’s version in Court, a single weapon was used by both A.1 and A.3 to cause the injuries, which directly contradicts the contents of Ex.P1. Considering these inconsistencies, the Trial Court concluded that PW.1 modified and developed his case beyond what was recorded in Ex.P1, including aspects relating to the place of occurrence and the nature of the weapon used. The Trial Court further remarked that PW.1, perhaps out of over-anxiety, may have embellished his testimony in the hope that such improvements would help ensure the accused were convicted. The Trial Court also noted that no prudent person would give conflicting accounts regarding the place of occurrence if the incident had genuinely taken place, as there would be no possibility of forgetting such a crucial detail.

17. The Trial Court was not inclined to place reliance on the evidence of PW.2, who is a worker under PW.1. The Trial Court also noted that, according to PW.1, he and PW.3 are related by blood. PW.3 stated that the entire incident occurred in the front yard of A.1’s house and that when he and PW.2 attempted to enter the front yard, the accused prevented them from doing so. The evidence of PWs.1 to 3 further indicates that approximately 20 persons had gathered at the scene upon hearing the cries of PW.3. However, none of these witnesses were able to identify or name any of the persons who had gathered. PW.1 also stated that other residential houses surround A.1's house, and that those who gathered were the residents of the neighbouring houses, with whom he had no enmity.

18. The Trial Court was also not inclined to accept the evidence of PW.4, as the facts stated by him did not find support in the testimony of PWs.1 to 3. According to PW.4, about five years before the date of his testimony, PW.1 had come to his house requesting drinking water, and upon providing it, PW.4 noticed that PW.1’s shirt was soaked with blood. PW.4 further stated that he then went to PW.1’s house, brought PW.1’s father, and that the father took PW.1 home. However, the evidence of PWs.1 to 3 indicates a different sequence of events, namely, that immediately after the alleged incident, they went to the police station to lodge Ex.P1 complaint, and subsequently, PW.1 was referred to the Tiruvur Government Hospital for treatment. The Trial Court noted that if the version of PW.4 were accurate, PW.1’s father, who allegedly took PW.1 home, would reasonably have been cited as a witness. While observing that PWs.4 and 6 were independent witnesses, and therefore their testimony would ordinarily carry weight as they were not interested in either the prosecution or the defence, the Trial Court found that neither PW.4 nor PW.6 had stated what exactly had happened during the incident or described with clarity the injuries allegedly sustained by PW.1.

19. The prosecution examined PW.5 (Akula Kondayya), the former Secretary of the village panchayat, who stated that he inspected the scene of the offence along with the S.I. of Police. He deposed that the police seized blood-stained earth and control earth under the cover of the observation report marked as Ex.P2. The prosecution further alleged that the S.I. of Police proceeded to Mamillacheruvu katta, where he noticed A.1 strolling suspiciously. Upon enquiry, A.1 disclosed his identity and stated that PW.1 had assaulted his wife on two or three earlier occasions, which had been reported to him by her, and that he bore a grudge against PW.1 and had inflicted injuries on him with a sickle.

20. The prosecution relied on the alleged confession statement made by A.1. Although PW.5 was cited as a witness to both the confession and the seizure of weapons allegedly made in his presence, his testimony did not support the prosecution's case. While PW.5 initially supported the prosecution with respect to the seizure of the sickle pursuant to A.1's alleged confession, during cross-examination, he stated that, apart from the collection of blood- stained earth and control earth, nothing else occurred in his presence. This admission indicates that MOs.3 and 4 were not seized by PW.7 in the presence of PW.5. Furthermore, the Trial Court was not inclined to rely on the evidence of PW.5, as he admitted that memos had been issued to him on two occasions for failure to collect arrears of revenue amounting to Rs.20 lakhs from the villagers, and that ACB officials had raided him and a case had been registered against him, resulting in his suspension from the post of Secretary. These circumstances cast doubt on the credibility and reliability of his testimony.

21. The Trial Court also noted discrepancies in the testimony of PW.5, leading it to doubt his evidence regarding the seizure of MOs.3 and 4. The Trial Court observed that PW.5 failed to specify the exact location from which these material objects were allegedly seized from A.1. Moreover, as already mentioned, PW.1 stated that only one sickle was used by A.1 and A.3 to inflict injuries on him, making the seizure of MOs.3 and 4 appear to be a later development. The Trial Court further pointed out that the testimonies of PWs.2 and 3 do not support the prosecution's case or corroborate the version given by PW.1.

22. As already noted, PW.1 testified that the scene of offence was inside the house of A.1. However, according to the evidence of PWs.2 and 3, the alleged incident occurred in the front yard of A.1’s house. In contrast, the Investigating Officer prepared Ex.P6, a rough sketch indicating that the offence took place in the middle of the Tiruvur–Utkur road. The contents of Ex.P6 are therefore inconsistent with the version given by PW.1 and do not support the account of PWs.2 and 3 either.

23. The Trial Court pointed out that according to the evidence of PWs.2 and 3, PW.1 had consumed liquor on the date of the incident. PW.6 (Chalasani Basavayya) had hosted a marriage dinner for his younger son at his house on the same day, providing an occasion for PW.1 to consume alcohol. The defence too asserted that PW.1 had taken liquor on the fateful day and had fallen on the stones, causing the injuries. The Trial Court also noted that PW.3 testified that he was unaware whether PW.1, after consuming liquor at certain functions, would fall on the road. The Trial Court noted that there was a real possibility that the injuries sustained by PW.1 could have resulted from a fall onto sharp-edged stones, a possibility that was also admitted by the doctor who treated him (PW.8, Dr. M. Revathi).

24. This Court views that the major contradictions regarding the scene of the offence and the inconsistent versions about the weapons allegedly used by A.1 and A.3 cast serious doubt on the genuineness of the prosecution's case. After considering the entire evidence of the material witnesses, this Court views that the prosecution had failed to establish the guilt of the accused beyond a reasonable doubt, as rightly concluded by the Trial Court.

25. 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. Rather, it would be proper for the Court to pass a judgment of acquittal in favour of the accused. When Trial Court after proper 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.

26. 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 Trial Court are perverse, contrary to the material on record, palpably wrong, manifestly erroneous or demonstrably unsustainable.

27. In Mohan @ Srinivas @ Seena @ Tailor Seena V. State of Karnataka(2021 (15) SCALE Pg. 184), 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.

28. 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. Sheeshpal((2017) CriLJ 169), 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.

29. 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 respondents / accused.

30. 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.

31. The Trial 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 Trial Court. Upon careful reconsideration, there is no flaw in the findings of fact by the Trial Court. Therefore, the acquittal of the respondents/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 Trial Court. Accordingly, the point is answered.

32. In view of the above and for the reasons stated above, the present Criminal Appeal No.1797 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, Nuzvid, in Sessions Case No.74 of 2005, dated 13.10.2008, stands confirmed.

Interim orders, if any, granted earlier shall stand vacated, and all pending miscellaneous petitions, if any, shall stand closed.