CASE NO.: Appeal (crl.) 674 of 2002 PETITIONER: Devatha Venkataswamy @ Rangaiah RESPONDENT: Public Prosecutor, High Court of A.P. DATE OF JUDGMENT: 09/09/2003 BENCH: N.Santosh Hegde & B.P.Singh. JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
Thirty-five accused including the appellant herein
were charged for offences punishable under Sections 302,
147, 149 and 304 IPC for having committed the murder of
one Krishnaiah on 28.7.1988 at about 7 a.m. near the Ram
Mandir (Temple) at Palachuru village. The learned Sessions
Judge, Nellore Division, Nellore, by his judgment dated
18.5.1999 acquitted all the accused persons of the charges
framed against them holding that the prosecution had failed
to establish its case. In appeal the High Court of Judicature
Andhra Pradesh at Hyderabad by the impugned judgment
came to the conclusion that A-1 (since deceased) and A-2
(the appellant herein) were responsible for causing the death
of deceased. The High Court also held that A-3 was
responsible for causing injuries to PW-1. Since by then A-1
had died, the proceedings against him had abated, therefore,
the High Court convicted A-2 for an offence punishable
under Section 302 simpliciter and sentenced him to undergo
imprisonment for life while A-3 was convicted by the High
Court for an offence punishable under Section 324 IPC, the
said A-3 has not challenged his conviction and sentence, so
the present appeal before us is confined to A-2 only.
Brief facts necessary for the disposal of this appeal are
as follows :
It is stated that there were two sub-castes of Harijans
residing in Palachuru village, who had certain disputes inter
se between them. One such group consisting of 35 accused
was led by A-1 allegedly attacked the deceased on
28.7.1988 at about 7 a.m. near the Ram Mandir in the said
village. In the said attack, the deceased Krishnaiah was
seriously injured while PW-1 was also injured. The incident
in question was noticed by PWs. 1, 3, 4 and 7. While
PWs.5, 6 and 11 allegedly arrived at the scene soon after the
attack. The information in regard to this attack was received
by the Mandal Revenue Officer, PW-14 who conveyed the
said information to PW-21, the Sub-Inspector of Police,
Palachuru, who immediately visited the scene of the
incident and shifted the injured to the hospital at Gudur. In
view of the fact that the deceased was seriously injured he
was shifted to Madras Medical College Hospital at Madras.
PW-1 also arranged to record the statement of the said
deceased in the hospital which is marked as Ex. P-21. It is
stated that said Krishnaiah died on 3.8.1988, hence, Ext.P-
21 was treated as a dying declaration. After completion of
investigation, PW-21 filed a charge sheet against 35
accused persons including the appellant herein. The trial
court, as stated above, acquitted all the accused persons but
on appeal preferred by the State the High Court has
convicted the appellant herein for an offence punishable
under Section 302 IPC.
Ms. K. Sarda Devi, learned counsel appearing on
behalf of the appellant contended that the High Court
seriously erred in reversing the well-considered judgment of
acquittal of the trial court. She submitted that from a perusal
of the judgment of the High Court it can be seen that the
High Court has not properly discussed the findings of the
learned Sessions Judge nor has it given any acceptable
reason for disagreeing with the findings of the trial court.
She also contended that a perusal of the evidence of eye-
witnesses clearly shows that the said evidence cannot be
relied on for basing a conviction as held by the trial court.
Ms. T. Anamika, learned counsel appearing for the
State of Andhra Pradesh supported the judgment of the
High Court by contending that the evidence led by the
prosecution was consistent, and PW-1 being an injured eye-
witness, his evidence cannot be discarded. She also
submitted that the evidence of PW-1 is fully corroborated
by the other evidence led by the prosecution, hence, there is
no reason for this Court to interfere with the well
considered judgment of the High Court.
It is a well-settled principle in law that though the first
appellate court like the High Court in this case sits as a
court of appeal on facts also while considering an appeal
from the judgment of the trial court and in that process it
can re-appreciate the evidence on record to arrive at a just
conclusion, this Court in more than one case has held that
while so re-appreciating the evidence, the appellate court
should first analyse the findings of the trial court and then
for valid reasons to be recorded the appellate court can
reverse such finding of the trial court. The said decisions
also hold that the appellate court while sitting as a court of
appeal should not substitute the finding of the trial court
merely because another view is possible to be taken on the
same sets of facts. (See : Rajendra Prasad vs. State of Bihar
(1977 2 SCC 205), Harisingh M.Vasava vs. State of Gujarat
(2002 3 SCC 476) and Joseph vs. State of Kerala (2003 1
SCC 465).
Bearing in mind the above principles in law, we will
now consider whether the High Court is justified in this
case in interfering with the finding of the trial court which
had acquitted all the accused persons. A perusal of the
judgment of the High Court shows that it had discussed the
evidence led by the prosecution in a very casual manner.
For example, in regard to the evidence of PW-1, this is what
the High Court observed :
“As far as the attack on PW1 is
concerned, the deceased while giving
the first information Ex.P21 gave the
details of the offence. PW1 himself
attributed specific overt acts against
A3, A4, A6, A7 and A8 and whereas
PW10 has also attributed overt acts of
attacking PW1 to A2 and A3. It is
supported by the medical evidence.
But the injuries were simple in nature
and therefore they are ignored.”
We do not find from the above observation of the
High Court that it has taken into consideration the various
omissions and contradictions found in the evidence of PW-
1.
Having perused the evidence of PW-1 in its entirety as
also the medical evidence, we are not in a position to agree
with the High Court in regard to the acceptability of the
evidence of PW-1. First of all, it should be noticed that in
the above extracted portion of the judgment, the High Court
has observed that the evidence of PW-1 is supported by the
medical evidence but when we perused the evidence of the
doctor, PW-16 as also the injury memo and post mortem
report, we notice there is a direct conflict between the
evidence of PW-1 and the medical evidence. While PW-1 in
his evidence before the court stated that the appellant
pierced the forehead of the deceased Krishnaiah once. The
medical report shows that the injury caused to the forehead
of the deceased was by the use of a blunt weapon and that
too by repeated blows. Therefore, the High Court was
totally wrong in coming to the conclusion that the medical
evidence supported the oral evidence of PW-1. That apart,
the High Court failed to notice certain other material
omissions and contradictions in the evidence of PW-1. First
of all it should be noted that PW-1 on his own admission is
a person who has paralysed legs for the last 20 years and
was unable to move on his own. It is his case that when he
heard some “galata” he went from his house to the place of
incident which was about more than one furlong away from
his house. He did not state in his evidence who actually
helped him to go to the said place of incident. In the cross-
examination this witness has admitted that he had stated
before the police that due to old age he could not identify all
the culprits. He has also admitted in the cross examination
that when his statement under Section 161 was recorded he
did not state before the police that the appellant herein had
attacked him, but in his oral evidence before the court he
has made improvement in his evidence, while identifying
all the accused persons as also while stating the appellant
herein also attacked him. At this stage it is also relevant to
mention that in Ex.P-21 the dying declaration of the
deceased presence of none of these witnesses including that
of PW-1 is mentioned. The only person who is stated to be
a witness to the incident as per the dying declaration Ext.P-
21 is PW-12 who has not spoken anything about the attack
by the appellant herein either on the deceased or on PW-1.
It is on consideration of all these facts and also taking into
consideration the conflict between the evidence of PW-1
and medical evidence the trial court rejected the evidence of
PW-1. In our opinion, the High Court has not taken into
consideration these important facts while accepting the
evidence of PW-1. We are aware of the fact that PW-1 is an
injured witness and normally the presence of such a witness
at the time of incident can be inferred if the injuries are
suffered in the course of same incident. But in the instant
case, we are unable to place any reliance on the evidence of
PW-1 because on his own admission in the cross-
examination because of poor eye sight he was not able to
identify all the accused persons. That apart it has come in
the evidence that so far as this witness is concerned he was
actually attacked not at the place of occurrence, namely the
Ram Mandir where the deceased was attacked, but in front
of the house of one Yellampali Peda Polaiah which is at a
considerable distance from the Ram Mandir where the
deceased was attacked. Taking into consideration these
facts, we are of the opinion that the trial court was justified
in rejecting the evidence of PW-1.
The prosecution has then relied on the evidence of
PW-3 and PW-7 to establish the fact that it is the appellant
herein who pierced the forehead of the deceased with a
spear. We have already noticed the fact that the injury
attributed to this appellant to the forehead of the deceased
could not have been caused by a sharp edged or pointed
weapon like spear and it is on that basis among other facts
we have rejected the evidence of PW-1. For the very same
reason, we think it is not safe to place reliance on the
evidence of these two alleged eye witnesses. The evidence
of PW-4, as a matter of fact, does not support the
prosecution at all because according to him it is A-3 and not
A-2 who pierced the head of the deceased with a spear. So
far as other witnesses examined by the prosecution are
concerned, namely, PWs. 5, 6, 10 and 11, they are all
witnesses who arrived at the place of incident after the
attack was over, therefore, their evidence will not support
the prosecution case any further. Only other alleged eye-
witness PW-2 has not supported the prosecution case.
From the above discussion of the evidence led by the
prosecution in the case in hand, we are satisfied that the
High Court fell into an error in reversing the judgment of
the trial court. Therefore, this appeal succeeds and the same
is allowed. The judgment of the High Court is set aside, the
conviction and sentence imposed on the appellant are set
aside. The appellant shall be set at liberty forthwith, if not
required in any other case.