JUDGMENT
Ghulam Mohammed, J.
1. This Criminal Appeal has been filed by the State represented by the Public Prosecutor, High Court of A. P., Hyderabad, against judgment dated 24-3-1999 passed in S.C. No. 252 of 1997 by the Addl. Assistant Sessions Judge, Ananthapur, acquitting the accused-respon-dents herein.
2. The case of the prosecution, in brief, is that on 25-6-1996 in early morning, at a bore-well, an altercation took place between Boy a Maruthi and one Hanumanthu, who were working on looms under Parese Srinivasulu P.W. 1 and Ramana-A-3 respectively. Thereupon, Parese Srinivasulu who went to the bore well at that time chastised both Maruthi and Hanumanthu and took Maruthi along with him to his house. That on the same day around 6.00 a.m., A-l to A-7 formed into an unlawful assembly armed with sickles, daggers, ironrods with an intention to kill PW-1, went to the house of P.W. 1. That when the accused cried out the name of PW-1, he came out of his house, thereupon the accused picked up a quarrel with PW-1 for having chastised their boy Hanumanthu. That in the meanwhile, A-l hacked PW-1 on his right hand index finger, A-2 stabbed with PW-1 with a dagger on his nose, whereas A-5 bitten the upper lip of PW-1 resulting in bleeding injuries to PW-1. That when PW-2 who is the brother of PW-1 went to rescue PW-1, A-3 beat him with a sickle on his right hand middle finger and also dealt a blow on his back whereas A-4 hacked on his left elbow with a sickle. A-7 dealt a blow upon PW-2 with an iron rod on his right elbow. A-6 dealt a blow with an iron rod on the back of PW-2 and due to the said attack by the accused both PWs. 1 and 2 sustained bleeding injuries. That at the instance of Boya Maruthi, Chintha Venkata Dasu, Gorla Janardhana Reddy, Chintha Yerriswamy and Talari Sreeinvasulu (L. Ws. 3 to 7) P. Ws. 1 and 2 were rescued from the hands of the accused. Thereafter, on the report of PW-1, a case in Cr. No. 62 of 1996 for the offence punishable under Sections 147, 148, 324, 326, 307 read with 149, I.P.C. was registered at Bukkarayasamudram Police Station against the accused and investigated into. As per the doctor’s opinion PWs. 1 and 2 sustained both grievous and simple injuries. That on 1-7-1996 some of the accused were arrested and sent for remand. Thus, the investigation discloses that the accused by forming into an unlawful assembly with deadly weapons, with common intention to kill PW-1 attacked PWs. 1 and 2 with deadly weapons and caused simple and grievous injuries. Thus, they are liable for the offences punishable under Sections 147, 148, 324, 326, 307 read with 149, I.P.C.
3. The Additional Judicial First Class Magistrate, Anantapur has taken the case on file as PRC No. 122 of 1996 against A-l to A-7 for the offences punishable under Sections 147, 148, 324, 326, 307 read with 149, I.P.C. and after following the procedure as prescribed under Section 207 to 209, Cr.P.C. committed the case to the Court of Sessions, Ananthapur.
4. On appearance of A-l to A-7, charges were framed against the accused, read over and explained to them to which they pleaded not guilty and claimed to be tried.
5. In support of the case, the prosecution has examined PWs. 1 to 7 and got marked Exs. P-1 to P-9. After closure of the prosecution evidence, accused were examined under Section 313, Cr. P.C. The accused marked Exs. D-l to D-6.
6. The trial Court on analysis of the evidence on record came to the conclusion that both the prosecution and defence did not give the true version of the alleged incident to the Court, and, therefore by giving benefit of doubt, acquitted the accused.
7. Learned Addl. Public Prosecutor appearing for the appellant-State contended that the judgment of the learned Sessions Judge is against law, weight of evidence and probabilities of the case and that the Sessions Judge failed to appreciate the evidence of the injured victims who were examined as PWs. 1 and 2 and also other witnesses PWs. 4 and 5, whose presence ought not to have been doubted at the time of the occurrence.
8. It is further contended that the evidence of PWs. 1 and 2 corroborated with the evidence of PWs. 4 and 5 and also with the medical evidence of PW-3 doctor and the injury certificates Exs. P-2 and P-3. Learned Additional Public Prosecutor also contended that inasmuch as PWs. 1 to 2 received grievous injuries, whereas the accused received simple injuries, the accused have to be convicted for the offence punishable under Section 324, I.P.C. In support of her contentions, learned Additional Public Prosecutor relied on the decisions reported in Thummala Srinivasulu Reddy and Ors. v. State of A.P. 2005 (2) Andh LD (Cri) 872, Movin v. State of U.P. 2001 Cri LJ 2098 (All) and Triloki Nath and Ors. v. State of U.P. .
9. In Thummala Srinivasulu Reddy’s case (supra) it was held by the Division Bench of this Court that “Right of private defence” can extend to voluntarily causing death of a person and in such a case the accused must establish the circumstances which led to the apprehension that either death or grievous hurt would be caused to them, and while establishing that right the accused can go to the extent of causing death.
10. In Movin’s case (supra), the appellant therein said to have inflicted two knife blows in the abdomen of the victim and that the appellant attempted to give a third blow when the victim claimed to have caught hold of accused’s hands and in the process he sustained an injury in index finger. There was no evidence to prove that those two injuries were sufficient in the ordinary course of nature to cause death of the victim and no x-ray examination report was brought on record by the prosecution. In the absence of evidence brought on record regarding internal damage underneath injury, it was held by the Apex Court that it cannot be said to be grievous and therefore the conviction of the accused under Section 307, I.P.C. was altered to one under Section 324, I.P.C. In Trilokinath’s case (supra), it was inter alia held by the Apex Court that for the purpose of attracting Section 149 of the I.P.C., it is not necessary that there should be a pre-concert by way of a meeting of the persons of the unlawful assembly as to the common object. If common object is adopted by all the persons and shared by them, it would serve the purpose. There is no dispute with regard to the propositions laid down in those decisions.
11. Sri T. Pradyumnya Kumar Reddy, learned Counsel appearing on behalf of the accused-respondents, on the other hand, submitted that the prosecution failed to come out with true picture with regard to the alleged incident, therefore the accused were rightly acquitted by giving benefit of doubt. Learned Counsel further submitted that inasmuch as it is a fight against fight in which both the rival groups received injuries and that fact being suppressed by the prosecution, the acquittal is proper and no interference is warranted in this appeal. In support of his contentions, the learned Counsel relied on the following decisions:
12. Iswar Singh v. State of U.P. . Keshav v. State of Maharashtra , State of U.P. v. Samman Dass , State of Punjab v. Joginder Singh , and Muluwa v. State of M.P. .
13. The point that fall for consideration in this appeal is whether the judgment of acquittal recorded by the trial Court is sustainable in law?
14. To prove its case, the prosecution has examined as many as seven witnesses and among them the evidence of PWs. 1, 2, 4 and 5 is identical. P.W. 5 is the eye witness to the incident and PWs. 3 and 6 are the doctors. P.W. 7 is the investigating officer.
15. According to their evidence on the fateful date i.e. 25-6-1996 around 6.00 a.m. there was an altercation between Maruthi, a boy working under P. Ws. 1 and 2 and another boy by name Hanumanthu, a boy working under the accused near a bore well and at that time, PW-1 intervened and chastised both Maruthi and Hanumanthu and when PW-1 was returning along with PW-4 to his house, accused A-1 to A-7 armed with hunting sickles, iron rods, and daggers came to the house of PW-1 and called him by his name and when PW-1 came out of his house, A-l hacked his right palm with haunting sickle, A-2 stabbed on his nose with a dagger, A-5 bitten his upper lip. That when PW-2 tried to intervene, A-2 hacked on the left palm of PW-2 with haunting sickle, A-4 hacked on the left arm of PW-2 with haunting sickle, A-3 dealt a blow with sickle on the back of PW-2, A-7 dealt a blow with an iron rod on the right hand of PW-2, A-6 dealt a blow with an iron rod on the back of PW-2. That the accused attacked PWs. 1 and 2 with an intention to kill them and the incident was witnessed by PW-5 and others.
16. The injured victims in this case are PWs. 1 and 2. In the cross-examination of PW-1, no doubt he has stated what all was stated in the chief examination, but he has admitted that on the complaint of A-3 herein a criminal case was registered against himself, PW-2 and others on the allegation that they beat A-l to A-3 and A-7 on the same day, the day on which PWs. 1 and 2 were alleged to have been attacked by the accused.
17. In the light of the evidence of PWs.1 and 2, it is useful to refer to the evidence of PW-3 doctor, who is stated to have treated PWs. 1 and 2 to know the nature of injuries sustained by them. The doctor was examined as PW-3 and the wound certificates were marked as Exs. P-2 and P-3. PW-6 is another doctor through whom Exs. P-4 to P-8 x-rays of PWs. 1 and 2 were marked. However, PW 6 stated that he did not take the said x-ray covered under Exs. P. 4 to P. 8.
18. The evidence of PW-3 doctor is to the effect that he examined PWs 1 and 2 and issued wound certificates. He also stated that he examined A-l, A-3 and A-7 for the injuries sustained by them on the same date 25-6-1996 and Exs. D-l to D-3 disclose the injuries sustained by them. Both the doctors examined by the prosecution disowned to have taken the x-rays under Exs. P-4 to P-8 of the injuries sustained by PWs. 1 and 2 and though Exs. P-4 to P-8 are marked, they remained un-explained.
19. The evidence of PW-7, Investigating Officer is to the effect that on the relevant date, there was scuffle between two groups and he has registered two different criminal cases against both groups made by them against each other. The accused in this case are complainants in CC No. 1 of 1998 filed against the PWs. 1 and 2, arrayed as A-l and A-3. PW-7 categorically admitted that in Ex. P-1 it was not mentioned that the accused attacked PWs. 1 and 2 with haunting sickles and with an intention kill them and the other details as to the attack by A-6 and A-7 on PW-2 were not mentioned.
20. In the light of the evidence of P.W. 1 admitting to the effect that there was fight against fight on the same day between two groups in which the members belonging to two groups sustained injuries, as is evident from Exs. P-2 and P-3 and Exs. D-l to D-3 which are wound certificates in respect of P.Ws. 1 and 2 and accused A-1, A-3 and A-7, issued by P.W. 3 doctor in respect of the same incident happened on the same day, the trial Court came to the conclusion that the prosecution has not come out with the true version of the incident and the doctor who has taken the x-rays of P.Ws. 1 and 2 was not examined. A-l, A.3 and A.7 also sustained injuries in the same incident and they were treated by the same doctor P.W. 3 who treated P.Ws. 1 and 2 and issued wound certificates Exs. D.l to D.3 with respect to the injuries of A. 1, A.3 and A.7. Admittedly, the prosecution has failed to give any explanation for the said injuries sustained by the accused. Except P.W. 5 no other independent witness was examined by the prosecution to corroborate the statements of P.Ws. 1 and 2 who were accused in CC No. 1/1998. The trial Court which has the opportunity of observing the demeanor of the witnesses came to the conclusion that the prosecution failed to prove its case beyond reasonable doubt and therefore by giving benefit of doubt acquitted the accused.
21. In Keshav’s case 1971 Cri LJ 798 (supra) it was held by the Apex Court that High Court has no power to set aside acquittal in appeal without giving due weight to the reasons given by trial Court in rejecting prosecution evidence. The relevant portion of the judgment reads as under (para 8):
The evidence against the accused depends upon the oral testimony of the eyewitnesses, the recovery of the hammer alleged to be at the instance of accused 2 and the dying declaration said to have been made by the deceased to Kadam and to S.I. Suryavanshi. We have gone through this evidence and find that the High Court has not given due weight to the reasons given by the Additional Sessions Judge in rejecting that evidence. In appeals against acquittal while the powers of the High Court are no different from its powers in ordinary appeal against conviction, the High Court has to consider all the matters which weighed with the Trial Court and the reasons given by it for disbelieving the witnesses whose demeanor it had opportunity of observing. This Court had in Laxman Kalu v. State of Maharashtra :
We may say here that it is now the settled law that the powers of the High Court in an appeal against the acquittal are not different from the powers of the same Court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Session and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when he is put up for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court.
22. In Samman Dass’s case 1972 Cri LJ 487 (supra) accused therein aged about 19 years was convicted for murder of his wife by throttling and the High Court on appraisal of the evidence acquitted him from the offence under Section 302, IPC. The Supreme Court in appeal by special leave while convicting the accused for murder sentenced him to imprisonment for life due to lapse of three years from date of occurrence has held that:
In an appeal under Article 136 the Supreme Court does not normally reappraise the evidence and interfere with the decision of the High Court. Where, however the Supreme Court finds that grave injustice has been done by the High Court in interfering with the decision of the trial Court on grounds which are plainly untenable and the view taken by the High Court is clearly unreasonable on the evidence on record, the Court would not stay its hand….
The fact that the High Court, in a reference under Section 374 Criminal P.C. has to appraise the evidence for itself and has to arrive at its own independent conclusion would not prevent this Court from interfering with the order of the High Court if the High Court reverse the judgment of the trial Court on grounds which are manifestly fallacious and untenable.
There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind, especially when the accused has been acquitted by the Court below, secondly, if two views of the matter are possible, a view favourable to the accused should be taken thirdly, in case of acquittal by the trial Judge, the appellate Court should take into account the fact that the trial Judge had the advantage of looking at the demeanor of witnesses and fourthly, the accused is entitled to the benefit of reasonable doubt. It is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism.
23. In Joginder Singh’s 1973 Cri LJ 987 (supra) case it was held by the Apex Court as follows (para 9):
It is not disputed that the High Court, sitting as a Court of appeal, was entitled to reappraise the evidence. In fact, as Joginder Singh, the 1st respondent, had been sentenced to death and there was the Murder Reference, there was a duty on the part of the High Court to consider the evidence independently and come to its own conclusion. It can be stated safely that it is established that on May 22, 1970, Gurdip Singh was murdered on his field on which barseem was standing and that in the said incident his two brothers, P.Ws. 3 and 4, received injuries. Under these circumstances, normally the evidence of P.Ws. 3 and 4 must receive very careful consideration at the hands of the Court. It should be borne in mind that even according to the learned Additional Sessions Judge, these and oilier witnesses had a motive to falsely implicate the 7th accused. The fact that their evidence has been found to be false with regard to the participation of the 7th accused, is certainly a very important factor to be taken into account to consider as to how far their testimony regarding the others can be safely accepted. For that purpose, the High Court has tested their evidence along with the other evidence on record. Though they claimed to have gone away to the hospital to get themselves treated immediately after the occurrence, which is stated to have taken place between 7 and 8.00 p.m. on May 22, 1970, the records clearly show that they were for the first time treated by the doctor only at about 9.30 a.m. on the morning of the next day. They had no explanation to offer for this delay. Under those circumstances, the High Court was justified in holding that the incident must have happened very late in the night, when the other witnesses, who claimed to have seen the occurrence, would not have been there. There is also the circumstance that, though it is in evidence, there are other people living near about the place of occurrence. Not one of them has been examined by the prosecution. P.Ws. 5 and 6 have been found to be unworthy of credit by both the Courts.
24. In Muluwa’s case 1976 Cri LJ 717 (supra), it was held by the Apex Court that where two views on the evidence are reasonably possible, one taken by the trial Court and the other reached by the High Court, in the absence of any material irregularity, manifest error or illegality, the High Court in appeal against acquittal should not interfere with the order of acquittal, merely because it thinks that it would, sitting as a trial Court, have taken the other view of the evidence.
25. In view of the principles laid down by the Apex Court in the above referred judgments, and considering the circumstance that the trial Court considering the entire evidence on record and also by observing the demeanor of the witnesses came to the conclusion that the prosecution failed to prove the guilt of the accused beyond reasonable doubt, I do not see any merit in this appeal. The criminal appeal is accordingly dismissed.