1. This Criminal Appeal has been filed by the State, aggrieved by the Judgment dated 04.12.2017 passed by the learned Special Sessions Judge-cum-VII Additional District and Sessions Judge at Mahabubnagar, in Spl.S.C.No.109 of 2014, whereby the learned Sessions Judge acquitted the respondents/accused of the offences punishable under Sections 120-B, 307 read with Section 34 of the IPC, Section 27 of Indian Arms Act, 1959, and Section 3(2)(v) of SCs/STs (POA) Act, 1989.
02. The case of the prosecution, in brief, is that on 21.01.2013, at about 15:30 hours, the de facto complainant, who belongs to the Lambada caste, a Scheduled Tribe community, lodged a complaint stating that, on the same day, at about 11:00 a.m., he, along with his uncle (PW.2), the victim in the present case, had gone to Wanaparthy on a Hero Honda motorcycle for personal work at SBH, Wanaparthy. After leaving PW.2 at the bank, the de facto complainant proceeded elsewhere, while PW.2 left for Ankaipally Thanda via Jagathpally and Peddamandadi villages. At about 2:00 p.m., when the de facto complainant telephoned PW.2, he informed that some unknown persons had shot him with a gun, intending to kill him, near a brick kiln situated within the limits of Jagathpally village. PW.2 further informed him that he had sustained a bullet injury on his back and that blood was oozing from the wound. Upon receiving the said information, the de facto complainant, along with PW.9, rushed to the spot and found PW.2 lying on the road. Immediately thereafter, PW.2 was shifted to the Area Hospital, Wanaparthy, for treatment.
03. Heard Mr. M.Vivekananda Reddy, learned Assistant Public Prosecutor appearing for the appellant/State and Mr. Subba Rao Vadrevu, learned counsel for the respondents/accused and perused the material on record.
04. Learned Assistant Public Prosecutor submitted that the learned Sessions Judge, without properly appreciating the oral and documentary evidence adduced by the prosecution, erroneously acquitted the respondents/accused. He contended that the prosecution had proved the guilt of the respondents/accused beyond all reasonable doubt. He further submitted that the finding of the learned trial Court is erroneous, as the incident took place in broad daylight and PW.2 had clearly stated that he could identify the two persons who chased him on a motorcycle and opened fire at him with a pistol. Nothing was elicited in the cross-examination of PW.2 to discredit his testimony or to show that he was speaking falsehood. Further, being an injured witness, there was no reason for PW.2 to implicate innocent persons, and his evidence is truthful, believable and trustworthy. The learned trial Court, however, failed to appreciate the evidence of the injured witness in its proper perspective and erroneously acquitted the accused. He further contended that the finding of the learned trial Court that PW.2 identified the accused about nine months after the incident cannot be sustained, as the incident did not occur in a crowded place and PW.2 had sufficient opportunity to observe the assailants from close quarters and, therefore, to identify them. As such, his evidence ought to have been given due consideration. The learned Assistant Public Prosecutor further contended that the learned Sessions Judge, without properly appreciating the ingredients of the aforesaid offences and the evidence available on record, erroneously passed the impugned Judgment acquitting the respondents/accused, contrary to the settled principles of law. Therefore, he prayed that the impugned Judgment be set aside and that the respondents/accused be convicted for the offences alleged against them.
05.1. On the other hand, the learned counsel for the respondents-accused vehemently contended that the learned Sessions Judge, after considering the oral and documentary evidence on record and after hearing the parties, rightly acquitted the respondents-accused for the alleged offences and given specific findings. He further submitted that the prosecution has failed to prove the alleged offences against the respondents-accused beyond reasonable doubt.
05.2. It is further contended that the respondents/accused have been falsely implicated in the case, allegedly at the behest of absconding accused No.3. The delay of about seven months in apprehending accused No.2, coupled with the fact that accused No.3 was shown as the prime culprit and main conspirator in the charge sheet, while reserving liberty to file a further charge sheet against him at a later point of time, though he was working in the Armed Forces, creates serious doubts about the genesis of the prosecution case. Further, the prosecution filed the charge sheet only against accused Nos.1 and 2, leaving the alleged prime culprit without being apprehended, and there was also no recovery of the firearm allegedly used by accused No.1 in firing at PW.2 with an intention to kill him in furtherance of the alleged conspiracy between absconding accused No.3 and accused No.1. These circumstances create serious doubts about the prosecution case. It is further contended that PWs.4 and 5 are planted witnesses, introduced only with a view to implicate accused Nos.1 and 2, more particularly accused No.1, in the present case. He further contended that, though the prosecution case rests on circumstantial evidence, the prosecution failed to establish the circumstances relied upon by it so as to bring home the guilt of accused Nos.1 and 2. Therefore, it is a fit case to extend the benefit of doubt to accused Nos.1 and 2.
06. Having considered the rival submissions advanced by the learned counsel for the respective parties and upon perusal of the impugned Judgment passed by the learned Sessions Judge, it is evident that, on behalf of the prosecution, PWs.1 to 14 were examined and Exs.P1 to P21 and M.Os.1 and 2 were marked. On behalf of the respondents/accused, Exs.D1 to D7 were marked. Upon a comprehensive appreciation of the oral and documentary evidence available on record, the learned Sessions Judge rightly arrived at the conclusion that the prosecution had miserably failed to establish the guilt of the respondents/accused beyond all reasonable doubt.
07. The learned Sessions Judge has assigned cogent, convincing and well-reasoned reasons in Paragraph Nos.43 to 51 of the impugned Judgment. It was rightly observed that, in order to establish the alleged offences punishable under Sections 120-B, 307 read with Section 34 of the IPC, Section 27 of the Indian Arms Act, 1959, and Section 3(2)(v) of the SCs/STs (POA) Act, 1989, the prosecution was required to establish the essential ingredients of each of the said offences by adducing legally admissible and cogent evidence. However, the prosecution failed to place such evidence on record.
08. The learned Sessions Judge further rightly observed that the mere presence of accused Nos.1 and 2 at Green Park Residency on the night of 20.01.2013, by itself, cannot lead to the inference that they were the very same persons who travelled on a motorcycle and allegedly fired at PW.2 on the afternoon of 21.01.2013 while following him on a motorcycle. There is no direct or reliable circumstantial evidence connecting the respondents/accused with the alleged firing incident. Significantly, no incriminating material was seized from accused Nos.1 and 2. Insofar as accused No.2 is concerned, the only material allegedly seized pursuant to his apprehension was the motorcycle said to have been used by him for following PW.2 on the date of occurrence with an intention to kill him with a firearm. Even such seizure was pursuant to the alleged confession said to have been made by accused No.2 after his apprehension.
09. Another significant circumstance which creates serious doubt regarding the prosecution case is that none of the witnesses examined by the prosecution, in their statements recorded by the Investigating Officers, furnished the registration number of the motorcycle allegedly used by the culprits. This assumes greater significance as PW.2, the victim, was allegedly the person who had seen the culprits proceeding on a motorcycle immediately after the firing. Nevertheless, even PW.2 did not furnish the registration number or any other particulars sufficient to establish that the motorcycle allegedly seized from accused No.2 was the same motorcycle used in the commission of the offence.
10. Further, there is no reliable evidence on record to establish that accused Nos.1 and 2 were seen following PW.2 on a motorcycle at or around the relevant time. The witnesses examined by the prosecution are, in substance, circumstantial witnesses who came to know about the occurrence only after the event, through PW.2. None of them had witnessed accused Nos.1 and 2 either possessing or using a firearm or targeting PW.2. Thus, their evidence does not establish any nexus between the respondents/accused and the alleged commission of the offence.
11. Most importantly, the firearm allegedly used for firing at PW.2 was not seized during the course of investigation. The nonrecovery of the alleged weapon of offence, particularly in the circumstances of the present case, assumes considerable significance. The prosecution having failed to recover or otherwise establish the weapon allegedly used in the commission of the offence, the said circumstance constitutes a serious lacuna in the prosecution case and goes to the root of the matter. When the aforesaid circumstances are considered cumulatively, the chain of circumstances relied upon by the prosecution is incomplete and does not unerringly point towards the guilt of accused Nos.1 and 2. Therefore, the view taken by the learned Sessions Judge that the prosecution failed to establish the guilt of the respondents/accused beyond all reasonable doubt is a possible, plausible and wellsupported view, warranting no interference in the present appeal.
12. In cases of acquittal, the Hon’ble Supreme Court in Ravi Sharma v. State (Government of NCT of Delhi) and another ((2022) 8 Supreme Court Cases 536), held that while dealing with an appeal against acquittal, the appellant Court has to consider whether the trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal.
13. In Ghurey Lal v. State of Uttar Pradesh ((2008) 10 Supreme Court Cases 450) the Hon’ble Supreme Court after referring to several Judgments regarding the settled principles of law and the powers of appellate Court in reversing the order of acquittal, held at para 70, as follows:
“70. In the light of the above, the High Court and other appellate Courts should follow the well-settled principles crystallized by number of Judgments if it is going to overrule or otherwise disturb the trial court’s acquittal.”
1. The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.
A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when:
i) The trial court’s conclusion with regard to the facts is palpably wrong:
ii) The trial court’s decision was based on an erroneous view of law;
iii) The trial court’s judgment is likely to result in “grave miscarriage of justice”;
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court’s judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The appellate court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached one that leads to acquittal, the other to conviction the High Courts/appellate courts must rule in favour of the accused.”
14. For the foregoing reasons as well as the principles laid down by the Hon’ble Apex Court in the Judgments cited supra, the learned Sessions Judge has rightly acquitted the respondents/accused for the offences punishable under Sections 120-B, 307 r/w 34 IPC, Section 27 of Indian Arms Act, 1959 and Section 3(2)(v) of SCs/STs (POA) Act, 1989. Hence, this Court does not find any grounds to interfere with the well reasoned Judgment of the learned Sessions Judge.
15. Accordingly, the Criminal Appeal is dismissed. There shall be no order as to costs.
As a sequel, miscellaneous Petitions, pending if any, shall stand closed.
