Subba Reddy Satti, J.

1. Questioning the judgment of acquittal passed by the learned III Additional Sessions Judge, Kurnool at Nandyal, in Sessions Case No.350 of 2013, dated 25.01.2018, the de facto complainant (P.W.1) filed the present Criminal Appeal.

2. Respondents 1 to 7/Accused 1 to 7 were tried by the learned Additional Sessions Judge under the following charges:

                  (i) The first charge was under Section 148 IPC against A-1 to A-7.

                  (ii) The second charge was under Section 302 IPC against A-1 to A-4.

                  (iii) The third charge was under Sec.302 r/w 149 IPC against A-5 to A-7

                  (iv) The last charge was under Sec.307 IPC against A-2 & A-5 to A-7.

3. The parties to this appeal are referred to as they were arrayed in Sessions Case No.350 of 2013, for the sake of convenience.

4. Gravamen of the charge is that on 14.10.2012 at about 10.30 p.m., near the fields on Pesaravai rastha, outskirts of Bojanam village, Bandi Atmakur Mandal, A-1 to A-7 with a common intention, formed themselves into an unlawful assembly with deadly weapons, such as axes and sticks, and committed the offence of rioting; caused death of B.Sivarami Reddy (hereinafter referred to as deceased No.1) and Mallu Rameswara Reddy (hereinafter referred to as deceased No.2); that A-1 to A-4 hacked the deceased Nos.1 and 2 with axes and caused bleeding injuries and committed homicide of deceased Nos.1 and 2; that A-5 to A-7 assisted A-1 to A-4 in committing the offence of homicide and in that process, they beat the deceased Nos.1 and 2 with sticks; further, A-2 also beat P.W.3 with stick portion of axe and caused injuries; A-5 to A-7 beat P.W.1 with sticks and caused injuries and thereby committed offences punishable under Section 148, 302, 302 r/w 149 and 307 IPC.

5. After completion of trial, the learned Additional Sessions Judge, having disbelieved the evidence of prosecution witnesses, acquitted the accused 1 to 7 of the aforesaid charges by judgment dated 25.01.2018 in S.C.No.350 of 2013. Aggrieved by the same, the present Criminal Appeal was filed.

6. The case of the prosecution, in brief, is that:

                  (i) All the accused, deceased Nos.1 and 2 and other material witnesses are residents of Bojanam village, Bandi Atmakur Mandal. Fourteen years prior to the incident, A-1 and his followers murdered one Addakula Subbarayudu, and they were claiming supremacy in the village. Six months prior to the incident, A-1 and his family members raised a dispute with the father of P.W.3, as the accused suspected that P.W.1 and his supporters were gaining supremacy in the village.

                  (ii) On 14.10.2012 at about 10.00 a.m., the deceased No.1 sowed jowar seeds in his land and requested the villagers not to take more water from the canal. P.W.1, along with P.Ws.2 to 5 and deceased Nos. 1 and 2, went to the agricultural fields at about 9.00 p.m. on 14.10.2012 and observed overflowing of water into the fields of deceased No.1. They went to the channel to check the water flow and observed that A-3 & A-5 to A-7 were standing near the channel. They questioned A-3, who in turn replied that he needed more water for his fields. P.Ws.2 to 4 removed the bund from the channel, and A-3 threatened them with dire consequences and left the place. P.Ws.1 to 6 and deceased Nos. 1 and 2 were standing near the south corner of the fields of deceased No.1. After half an hour, they observed two motorcycles coming there, which were parked at a distance of 20 feet. With the help of torchlights, they observed that A-1 to A-4 were armed with axes and A-5 to A-7 were armed with sticks. On seeing them, A-1 shouted and attacked on the head of the deceased No.2. A-1 to A-4 also hacked deceased No.2 with axes, and A-5 to A-7 beat with sticks. When the accused tried to catch hold of others, they ran away from that place due to fear. The accused chased the others till the fields of Swamy Das, where deceased No.1 fell and someone beat him, but P.W.1 did not observe who beat D1. After moving forward, P.W.1 turned back and observed A-1 to A-4 hacking deceased No.1 on his head, and A-5 to A-7 beat him with sticks. When P.W.1 tried to rescue deceased No.1, A-5 to A-7 beat him with sticks on his head. P.W.1 escaped from their clutches and went to the maize fields of D.Chinna Hussain and hid in the crop, which is 7 feet height. The accused searched for P.W.1 in the fields with torch lights; however could not trace him and left the place by uttering “Malla Dorukutadu Yekadiki Velthadu”. After 5 minutes, P.W.1 came out of the maize fields and found deceased No.1 had died. P.Ws.5, 6 and others came, and thereafter P.W.1 informed the incident to father of the deceased No.1.

                  (iii) P.Ws.2 and 4 to 6 shifted the deceased No.2 to the Government Hospital, Nandyal, where he succumbed to injuries. Meanwhile, all the villagers gathered at the scene of the offence. P.W.1 went home and gave a report to P.W.13 Sub Inspector of Police, who visited the scene of the offence. Ex.P1 is the report. Police sent P.W.1 to Government Hospital, Nandyal, for treatment at about 6.30 a.m.

                  (iv) P.W.13 on receipt of phone call from Bojanam village about galata at Burugumanu fields, rushed to the village along with other police. By that time, he reached the road of Pesaravai, and he observed villagers standing on the road, who led the police to the scene of the offence. He, along with his staff, observed deceased No.1 lying dead. Immediately, he informed the same to the Inspector of Police- P.W.14. None of the persons near the scene of the offence came forward to give a complaint. He came to know that P.W.1 received injuries in the galata. He, along with his staff, went to the house of P.W.1 at Bojanam village at about 2.00 a.m., and P.W.1 presented a written complaint. P.W.13 sent one constable to get the case registered through the Station House Officer, Bandi Atmakur Police Station. Head Constable received the complaint and registered a case in Crime No.112 of 2012 under Section 147, 148, 307, 302 r/w 149 IPC and issued express F.I.Rs to all the concerned. Ex.P15 is the F.I.R. P.W.13 took photographs at the scene of the offence. Exs.P12 and P13 are photographs.

                  (v) Thereafter, P.W.14 Inspector of Police went to Bojanam village at about 2.30 a.m. and went to the scene of the offence along with  P.W.1. He examined P.W.1 and recorded his statement. He instructed P.W.13 to send P.W.1 to the Government Hospital, who sent P.W.1 to the hospital along with a constable, along with a memo.

                  (vi) P.W.14 observed blood stains at the scene of the offence. He secured the presence of panchayatdars and conducted inquest over the dead body of deceased No.1. During the inquest, he examined P.Ws.2 to 5 and others and recorded their statements. Ex.P16 is the inquest report. P.W.14 observed one charging light near the head of deceased No.1.

                  He seized charging light-M.O.8 and also control earth and blood stain earth-M.Os.11 and 12. He also prepared a rough sketch-Ex.P23. Inquest was concluded at about 9.00 a.m., and the dead body was sent to the Government Hospital for autopsy. Thereafter, he went to Government Hospital, Nandyal and conducted the inquest over the dead body of deceased No.2 at the mortuary. Ex.P17 is the inquest report of deceased No.2. During the inquest, he examined P.W.6 and recorded his statement. After the completion of the inquest, he sent the dead body for the autopsy. After the completion of the inquest of deceased No.2, P.W.14 visited the scene of the offence and prepared Ex.P8 observation panchanama.

                  (vii) P.W.10 Civil Assistant Surgeon conducted autopsy over the dead body of deceased No.1 and issued Ex.P8 post mortem certificate. He opined that the cause of death was due to injury No.1, due to intracranial haemorrhage and injury to the brain. He also examined P.W.3 on 15.10.2012 at about 11.30 a.m. and found two small abrasions.

                  He issued a wound certificate-Ex.P9. He opined that the age of the injury is 12 to 24 hours prior to his examination.

                  (viii) P.W.11 Civil Assistant Surgeon conducted the autopsy over the dead body of deceased No.2 and issued Ex.P10 post mortem certificate. He opined that the cause of death was due to shock due to intracerebral haemorrhage.

                  (ix) P.W.12 Civil Assistant Surgeon, District Hospital, Nandyal, examined P.W.1 at about 7.00 a.m. on 15.10.2012 and issued Ex.P11 wound certificate. According to P.W.12, the age of the injury is 12 to 18 hours prior to his examination, and the injury is simple in nature.

                  (x) On 19.10.2012, on credible information, P.W.14 secured the panchayatdars and, along with P.W.13 and staff, proceeded to Lingapuram Crossroads and observed 7 persons coming from the opposite side. He identified A-1 and others and caught hold of them. A-1 confessed the commission of offence in the presence of panchayatdars. He recorded a confessional statement–Ex.P13, arrested A-1 to A-7, seized the vehicles-M.O.s.1 and 10 under the cover of Ex.P14. A-1 to A-7 led the police team to the fields, to the west of the KC canal, and brought four axes-M.O.s.1 to 4 and sticks-M.O. 5 to 7.

                  (ix) P.W.14 sent the blood-stained M.Os.1 to 4, control earth and blood-stained earth to the FSL for examination along with Ex.P19 requisition and Ex.P20 letter of advice. He received the RFSL report (Ex.P21). After the completion of the investigation, P.W.14 filed the charge sheet.

7. In support of its case, the prosecution examined P.Ws.1 to 14, marked Exs.P1 to P23 and exhibited M.Os.1 to 12. Exs.D1 to D15 were marked on behalf of the accused.

8. When the accused were examined under Section 313 Cr.P.C., they denied the incriminating evidence appearing against them.

9. Learned Additional Sessions Judge, on appreciation of both ocular and documentary evidence of the prosecution witnesses, found all the accused not guilty and acquitted the accused of all the aforementioned charges.

10. Heard Sri Posani Venkateswarlu, learned senior counsel assisted by Sri Penumaka Venkata Rao, learned counsel for the appellant, Sri T.Niranjan Reddy, learned senior counsel assisted by Sri B.S.Reddy, learned counsel for the accused 1 to 7, and Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State.

11. Learned senior counsel for the appellant, while vigorously opposing the judgment of the learned Sessions Judge, made the following submissions:

                  (i) P.Ws.1 and 2 are the injured witnesses; however, the learned Addl. Sessions Judge failed to appreciate their evidence in proper perspective.

                  (ii) P.Ws.1 to 6 are eye witnesses to the incident, and P.Ws.2 and 5 are witnesses to the inquest; however, their evidence was not properly appreciated.

                  (iii) The statement of deceased No.2 was not recorded by the outpost police as deposed by P.W. 12, Medical officer.

                  (iv) A counter case in Crime No.113 of 2012 of Bandi Atmakur Police Station was registered.

                  (v) The findings recorded by the learned Additional Sessions Judge are contrary to the evidence and relied upon the minor contradictions.

                  (vi) The evidence in toto needs to be considered to find the ring of truth.

                  (vii) The discrepancy in timing is only a minor contradiction. The latches on the part of the prosecution are not grounds for acquittal.

                  Thus, learned senior counsel would submit that the learned Addl Sessions Judge failed to consider the above aspects and prayed to allow the appeal and convict the accused 1 to 7.

12. On the other hand, Sri T.Niranjan Reddy, learned senior counsel, while supporting the judgment eloquently, would submit that the learned Sessions Judge recorded findings after considering ocular and documentary evidence available on record. The presumption of innocence in favour of the accused remains, until and unless proven guilty, and the presumption continues at all stages of the trial and finally culminates in a fact when the case ends in acquittal. The prosecution improved the case from stage to stage, and, infact, the genesis was suppressed. Ex.D14-accident register case sheet does not indicate the names of the accused, and eventually prayed to dismiss the appeal.

13. Sri Marri Venkata Ramana, learned Additional Public Prosecutor for the respondent-State, reiterated the contentions of learned senior counsel for the appellant.

14. We have carefully scrutinised the material available on record.

15. Before proceeding further, let this court, at the first instance, examine the scope of the appeal against acquittal, as per the judicial precedents rendered by the Apex Court.

16. The Hon‟ble Apex Court in Gopal Reddy Vs. State of Andhra Pradesh((1979) 1 SCC 355 : AIR 1979 SC 387), considered the jurisdiction of the High Court in an appeal filed under Sec 378 Cr.P.C. against an order of acquittal, after considering the relevant decisions on the point, observed as follows:

                  “9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for “substantial and compelling reasons‟ only and courts used to launch on a search to discover those “substantial and compelling reasons‟.

                  However, the “formulae‟ of “substantial and compelling reasons‟,

                  “good and sufficiently cogent reasons‟ and “strong reasons‟ and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] . In Sanwat Singh case [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor [(1933-34) 61 IA 398 : AIR 1934 PC 227 (2)] and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan [AIR 1961 SC 715 : (1961) 3 SCR 120 : (1961) 1 Cri LJ 766] this Court has consistently recognised the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case [AIR 1961 SC 715 : (1961)

                  3 SCR 120 : (1961) 1 Cri LJ 766] . Occasionally phrases like

                  “manifestly illegal‟, “grossly unjust‟, have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasise the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of A.P. [(1970) 3 SCC 474 : 1971 SCC (Cri) 80 : AIR 1971 SC 460] , Bhim Singh Rup Singh v. State of Maharashtra [(1974) 3 SCC 762 : 1974 SCC (Cri) 238 : AIR 1974 SC 286] ), it has been said that to the principles laid down in Sanwat Singh case [AIR 1961 SC 715 : (1961) 3 SCR 120

                  : (1961) 1 Cri LJ 766] may be added the further principle that “if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court‟. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.”

17. In Allarakha K. Mansuri Vs. State of Gujarat((2002) 3 SCC 57 : (2002) SCC (Cri) 519), by referring to earlier decisions, qua the appellate court‟s jurisdiction, the Hon‟ble Apex Court observed:

                  7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.”

18. In Harijana Thirupala Vs. Public Prosecutor, High Court of A.P((2002) 6 SCC 470 : 2002 SCC (Cri) 1370)., the Hon‟ble Apex Court considered the scope of appeal and observed, thus;

                  “12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.”

19. The Hon‟ble Apex Court again considered the entire case law vis- à-vis the scope of appeal, in an appeal filed against acquittal, in Chandrappra and others Vs. State of Karnataka((2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325) and summed up as follows:

                  “42. From the above decisions, in our considered view, 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 emphasise 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 a 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.

                  (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.”

20. The same principle was reiterated in Ramesh and another Vs. the State of Karnataka((2024) 9 SCC 169).

21. Thus, as seen from the authoritative expressions of the Hon‟ble Apex Court, though the appellate Court is empowered with powers to re- appreciate the evidence in appeals against acquittal, such power should be exercised with great care and caution. A judgment of acquittal strengthens the presumption of innocence. The appellate court shall also consider the double presumption in case of acquittal. The appellate Court should give weight to the trial court's acquittal judgment. The reversal is justified only if contrary evidence is proven.

22. In the case at hand, the judgment of the trial Court runs into 115 pages, wherein the evidence of all the witnesses has been extracted. The trial Court, after considering the ocular and documentary evidence, recorded the following findings and found the accused not guilty.

                  a. The presence of P.W.1 at the scene of the offence is very much doubtful, as also the FIR said to have been given by P.W.1.

                  b. The presence of P.W.2 to P.W.4 is also doubtful.

                  c. The prosecution failed to prove the motive for the accused to commit the offence.

                  d. Neither the injured nor the eye eyewitnesses could have witnessed the accused from a distance of 150 meters on the day following “Amavasya‟ (“dark moon Day‟).

                  e. There is a discrepancy regarding the time of the incident as projected by the prosecution.

                  f. As per the medical history (D14 and D15), the incident might have occurred at 9:00 pm on 14.10.2012.

                  g. The medical evidence adduced by the prosecution conflicts with the ocular evidence adduced by the witnesses.

                  h. According to the prosecution, P.Ws. 2, 4 and 6 shifted injured/deceased No.2 on their shoulders and their clothes were stained with blood. However, those clothes were not seized.

                  i. The statement recorded by the Police at the outpost was suppressed by the prosecution.

23. The main contention of the senior counsel appearing for the appellant, as noted supra, is that the Addl Session Judge did not properly appreciate the evidence adduced by the prosecution witnesses.

24. As seen from the material on record, the rivalry is between two groups in the village, and it is a faction rivalry. In such circumstances, the evidence should be scrutinised with great caution. There must be sufficient and compelling reasons for the appellate court to alter an order of acquittal to one of conviction. The Hon‟ble Apex Court analysed the issue of the appreciation of evidence in Balu Sudam Khalde Vs. State of Maharashtra((2023) 13 SCC 365) and observed as follows:

Appreciation of oral evidence

                  25. The appreciation of ocular evidence is a hard task. There is no fixed or strait jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:

                  “I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

                  II. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

                  III. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a  witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

                  IV. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

                  V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

                  VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

                  VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties, therefore cannot be expected to be attuned to absorb the details.

                  VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

                  IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

                  X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.

                  XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

                  XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.

                  XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.”

                  [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , Leela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222 : AIR 1999 SC 3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P., 1959 SCC OnLine SC 17 : AIR 1959 SC 1012] ]

25. In the case at hand, P.W.1 is a law graduate and not a layman. Two people died in a faction rivalry between two groups. According to the prosecution and evidence on record, the incident occurred in the fields related to the irrigation of the water.

26. Since the learned senior counsel advanced arguments concerning non appreciating the testimonies of eye witnesses and injured witnesses, let this court consider the said aspect. Some of the excerpts in the evidence of P.W.1 to P.W.6, which go to the root of the issue, are extracted here.

                  P.W.1

                  (i) So, we went to the channel to check the water-flow, wherein we have observed A-3 Ramakrishna Reddy, Ayyappa Goud A-7, Malliah A-6, and Venkatarami Reddy A-5, were standing near the channel. Then we questioned A-3, on that he replied that he need more water as his fields were situated at far away distance from the channel.

                  (ii) On seeing us, A-1 shouted by saying “VEYANDIRA KODUKULU DORIKARU” and hacked on the head of D-2 Rameswara Reddy then A-1 to A-4 hacked D-2 with axe and A-5 to A-7 beat with sticks and they tried to caught hold of us, due to fear we ran from that place. They chased us till the fields of Swamy Das where D1 fell down as someone beat him and I did not observe who beat him. After moving forward, I turned back and observed A-1 to A-4 hacking my brother D-1 (Sivarami Reddy) on the head, A-5 to 7 beat with sticks then I tried to rescue of D-1 on that A-5 to A-7 beat me with sticks on my head, somehow, I escaped from their clutches and went to the maize fields of D.Chinna Hussain and hidden myself in the maize crop which is 7 feet. After five minutes I came out from the maize crop and went to D-1 and found D-1 died.

                  (iii) P.Ws.2, 4 and 6 have shifted D-2 to Government Hospital, Nandyal, wherein he succumbed to stab injuries.

                  (iv) After coming to know about the incident, police came to the scene of offence, at that time I gave complaint. Ex.P1 is the complaint.

                  (v) Police sent me to Government Hospital, Nandyal for treatment at around 6.30 a.m.

                  (vi) After the incident either myself or villagers did not report to Bandi Atmakur Police. Immediately after receiving complaint, the police did not examine nor recorded their statements.

                  (vii) It is true on the date of offence it is first date of Amavasya (crescent moon) and the place of offence is completely in dark.(emphasis added)

                  (viii) I did not mention in Ex.P1 report that myself nor the persons who are along with me have observed the faces of A-1 to A-7 with the help of torch lights and charging lights. Likewise, I did not mention in Ex.P1 report the accused identified D-1 with the help of torchlight.

                  (ix) After I was shifted to the hospital for treatment, the doctor enquired about the cause of injuries and also the time of injury and I have informed the exact time as 9.00 p.m. that I have sustained injury.

                  (x) The distance between the place of incident and the place where we are standing will be more than 150 meters. It is true normally it is impossible to see anything at a distance of 150 meters in dark. (emphasis added).

                  (xi) It is true none of us tried to interfere nor tried to rescue D-2 or raised any cries. There is enmity between myself and accused and I am one of the important person in the group.

                  (xii) I have informed about the incident to my relatives through cell phone at about 10.45 p.m. (emphasis added)

                  (xiii) I am aware of the fact that after the incident it is the bounden duty to inform to police about the incident as both the deceased are my relatives. In the normal case, if any of our relative was murdered, immediately we will inform to police. It is true we never thought of lodging report to police. I gave complaint only after police reaching the place of incident.

                  (xiv) I have received printed F.I.R at the time of inquest at about 8.30 a.m. I have signed on printed F.I.R at about 8.30 a.m. at the time of inquest near the scene of offence.(emphasis added)

                  P.W.2:

                  The distance between the scene of offence and Pesaravai village is 2 KMs. … Whenever I felt heaviness of body, it was shifted to other two persons in turn. ….At the time of incident, clothes were completely blood stained. Likewise, the other persons clothes also blood stained. Police did not seize our clothes. …..We gave our clothes for Dhobi for washing. All three of us came to Bhojanam village from Government Hospital, Nandyal, changed our clothes and then went to scene of offence.

                  …..There is rivalry between the deceased and the accused group….. I was figured as one of the accused in one murder case of Subbarayudu @ Dudugadu….. After that incident, disputes took place between others and murders of D-1. But D-1 and P.W.3 were supporting the assailants and extending their help to them.

                  …… It is true the victims in the said murder case have grievance against D-1 and D-2. All those victims have lands near Burugu Maanu i.e. in and around the scene of offence.

                  P.W.3:

                  I sustained bleeding injury to my left knee. At the time I was

                  wearing lungi and the same was blood stained. Police did not seize my blood stained lungi. ….. What I am deposing in the Court is true and what I stated before the police is incorrect. (emphasis added)

                  P.W.4:

                  I carried D-2 on my shoulder from the scene of offence to

                  the Pesaravai village. ….. My clothes were blood stained, but the police seized my blood stained clothes. ……After P.W.1 and D-1 started running, A-1 to A-7 chased them and we also followed them till the fields of Swamydas and started watching the incident with the help of my torchlight. … I did not inform the doctors at Nandyal hospital about the incident. I did not inform the outpost police, who are present in the outpost station. ……Neither myself nor other persons attempted to run way even after seeing A-1 to A-7 armed with weapons, as we are all standing surrounding D-2. … I cannot say in which direction D-2 was facing. We shifted the dead body in Bolero vehicle. The seats of the vehicle were blood stained. L.W.5 drove the vehicle (L.W.5 was not examined).

                  P.W.5:

                  At the time of incident, I did not try to interfere and rescue D-1 and D-2. None of the accused attempted to attack me. I have no vision to right eye. Likewise, on the date of incident, the vision of right eye is also defective. I did not advice any of the persons, who are present there to inform about the incident to the family members of D-1 and D-2.

                  P.W.6:

                  I carried D-2 on shoulder to Pesaravai village. When I was in hospital, my wife brought clothes and I changed blood stained clothes. My wife came to the hospital at about 9.00 a.m. My wife threw away blood stained clothes into gutter in the hospital.

                  P.W.7:

                  P.W.7 deposed that there are number of factions in Pesaravai village.

27. It is a settled law that in criminal jurisprudence, while appreciating the evidence of a witness, the court must assess whether, read as a whole, it is truthful. In doing so, the court must keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truth. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. The court must filter the chaff from the grain and find out the truth.

28. A careful perusal of the testimony of the prosecution witnesses, extracted supra, demonstrates that it is parrot-like evidence. In fact, as per the case set out by the prosecution and the evidence of witnesses, the incident took place at about 10.30 p.m. However, in Exs.D14 and D- 15, it was mentioned that the incident took place at about 9.00 p.m. Time of occurrence is also crucial in these type of cases, especially in this case. In fact, the prosecution is not coming up with a genuine version.

29. It is pertinent to mention here that Ex P.8 post-mortem certificate relating to deceased No.1, the post-mortem was commenced at 12 noon on 15-10-2012. The time of death was mentioned as 24-36 hours prior to the time of post-mortem. Ex P.9 post-mortem certificate relating to deceased No.2, the post-mortem was commenced at 1-00 PM on 15-10- 2012. The time of death 12-18 hours prior to the post-mortem. Likewise, Ex P.11, wound certificate relating to P.W.1. He was examined at 7-00 AM on 15-10-2012, and the age of the wound is prior to 12-18 hours. If the deceased 1 and 2 and P.W.1 sustained injuries at the same time, the discrepancy in time mentioned in Exs P.9 to P.11, the prosecution should have explained. However, there is no explanation by the prosecution. Thus, the prosecution failed to explain the above discrepancies, which go to the root of the issue. That apart, the evidence of the prosecution witnesses, as extracted, does not inspire confidence in the court, since the evidence suffers from many infirmities.

30. According to P.W.1, the incident took place on the next day of Amavasya, and it was full of darkness, and they were there at a distance of 150 meters from the scene of the offence. He also deposed that he received F.I.R. on the next day at about 8.30 a.m. and he signed F.I.R. The Trial Court disbelieved the presence of P.W.1 at the time of the occurrence. In fact, a perusal of the entire evidence, we are also of the considered opinion that the testimony of material prosecution witnesses does not inspire confidence in the court to convict the respondents. When a total of seven people attacked, four with axes and three with sticks, witnesses watching the incident at a distance of 150 meters in darkness and some of the witnesses escaped without any hurt, creates any amount of doubt in the mind of the Court regarding the incident as well as the presence of the witnesses.

31. According to Modi’s Legal Medicine and Toxicology7, according to Tidy, the best-known person cannot be recognised in the clearest moonlight beyond a distance of 15½ m (17 yards). Colonel Bary, IMS, opined that at distances greater than 10.9 m (12 yards), the stature or outline of the figure alone is available as a means of identification. To define the features at an even shorter distance is practically impossible by moonlight.

32. Modi’s legal jurisprudence further establishes categorical principles that the recognition of known persons in the bright moonlight is 7 Twenty Third Edition, Editors K.Mathiharan and Amrit K.Patnaik page 335 not possible from a distance of fifty feet. Even making allowance for the increase in the distance in a tropical country like India, the distance of moonlight recognition cannot go from 12 yards or 17 yards to 45 yards or 52 yards.

33. In the case at hand, P.W.1 claims identification of the accused from 150 meters, approximately 492 feet or 164 yards. More critically, identification claimed to have been made on the next day of Amavasya, which is completely dark, is beyond one's comprehension. When the Court sifts through the grain from the chaff, the testimony of P.W.1 and other material prosecution witnesses in attributing the overt acts demonstrates that the witnesses attempted to implicate the opponents, taking advantage of an untoward incident.

34. In light of the jurisprudence extracted supra, it is physically and scientifically not possible that a person can be identified from a distance of 150 meters, in complete darkness. It represents the scientific method in the context of human vision perception. Therefore, identification of the accused by the witnesses at a distance of 150 meters cannot be relied upon, and it carries minimal probative value.

35. Regarding lodging of F.I.R., according to P.W.13-Sub Inspector of Police, Bandi Atmakur Police Station, while he was present in the police station at about 11.30 p.m., he received a phone call from Bhojanam village regarding a galata that took place in the Burugu Maanu fields of the village. He rushed to the village along with other police. By that time, he reached the Pesaravai village, he observed the villagers standing on the road, who led the police team to the scene of offence. Having observed D-1, he informed the same to Inspector of Police. None of the persons present near the scene of the offence came forward to give a report. He came to know that P.W.1 received injuries in the galata, and he went to the house of P.W.1 at about 2.00 a.m. P.W.1 presented a written complaint, and based on the said report, he sent PC-2638 to get the case registered, and accordingly, a case in Crime No.112 of 2012 was registered by the Head Constable. The distance between the station and the place of occurrence is 8 KM. According to P.W.1, as extracted supra, he received copy of F.I.R at about 8.30 a.m. on 15.10.2012. Thereafter, as seen from Ex.P15 F.I.R., it reached the learned Magistrate at about 9.00 a.m.

36. In Thulia Kali Vs. State of Tamil Nadu(AIR 1973 SC 501), the Hon‟ble Apex Court highlighted the importance of F.I.R. in a criminal case and held thus:

                  12. … … It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence.

                  ……. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.

37. In Meharaj Singh Vs. State of U.P.( (1994) 5 SCC 188), the Hon‟ble Apex Court held thus:

                  “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate.”

38. As indicated supra, a perusal of Ex.P1 would disclose that the complaint was received on 15.10.2012 at about 2.00 a.m. The complaint was endorsed to PC-2638, and the Head Constable registered a case in Crime No. 112 of 2012. The F.I.R reached the Magistrate at about 9.00 a.m. after P.W.1 received the F.I.R at about 8.30 a.m. The prosecution has not explained the delay in dispatching the F.I.R. to the learned Magistrate. In the absence of any proper explanation offered by the prosecution vis-à-vis the delay, it gives rise to a reasonable suspicion that the F.I.R. was anti-timed, leaving the scope of embellishment and false motive in preparing the report.

39. According to P.Ws.2, 4 and 6, they carried injured/Deceased-2, and their clothes were blood-stained. However, those clothes were not seized by the investigating officer. According to the prosecution witness, they were holding torch lights; however, no torch light was seized except the charging light, M.O. 8. P.W.12 medical officer, in his testimony, deposed that he had informed the police at the out-post police station in the compound of the hospital, and the out-post police recorded the statement of injured/deceased No.2. The said earliest statement of D-2, recorded by the out-post police, was suppressed by the prosecution. The contention of the learned counsel for the appellant that no such statement was recorded, we are not persuaded. Thus, the instances referred to supra, the prosecution has not come up with a true genesis. When the genesis and manner of the incident itself are doubtful, the benefit of doubt should always be in favour of the accused.

40. In Pankaj Vs. State of Rajasthan,( (2016) 16 SCC 192) the Hon‟ble Apex Court observed that when the genesis and manner of the incident itself are doubtful, conviction cannot be sustained.

                  “25. It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt.”

41. Similarly, in Bhagwan Sahai and another Vs. State of Rajasthan(AIR 2016 SC 2714) the Apex Court observed as follows:

                  “8. …. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. …”

42. Learned Additional Sessions Judge considered every aspect minutely and found the accused not guilty of all the charges. The reasons weighed by the learned Additional Sessions Judge, in our considered opinion, need not be upturned. In the absence of any perversity in the judgment of the learned Additional Sessions Judge, we do not find any merit in the criminal appeal, and it is liable to be dismissed.

43. In the result, the Criminal Appeal is hereby dismissed, confirming the judgment dated 25.01.2018 in Sessions Case No.350 of 2013 on the file of learned III Additional Sessions Judge, Kurnool at Nandyal.

                  Consequently, miscellaneous petitions, if any, pending shall stand closed.