Gorle
S. Naidu Vs. State of A.P. & Ors [2003] Insc 641 (15 December 2003)
Doraiswamy
Raju & Arijit Pasayat.
WITH CRIMINAL
APPEAL NOS. OF 2003 (Arising out of SLP (Crl.) NOS. 3088-90/1997) ARIJIT
PASAYAT,J Leave granted in SLP(Crl.)Nos. 3088-90/97.
These
six appeals are interlinked and relate to a Division Bench judgment of the
Andhra Pradesh High Court whereby the respondents were acquitted. Criminal
Appeal Nos. 232-234/1997 is by Gorle Suryanarayana Naidu (PW-4), the father of
the Kurmi Naidu who along with Meesala Jogulu (both of them hereinafter
referred to as 'deceased No.1 and deceased No.2' by their respective names)
lost lives on 10.4.1991 purportedly on the basis of assaults made by
respondents-accused persons.
In all
39 persons faced trial on the accusations of being responsible for the death of
aforesaid two persons. It is to be noted that the trial Court acquitted Gorle Ramarao
(A-5), Gorle Laxmanarao (A- 6), Gorle Satyam (A-12), Meesala Narayanarao
(A-14), Gorle Asirinaidu Kasavayya (A-15), Relli Ramachandra (A-19), Gorle Ramaswamy,
Gorle Chinnarao, Gorle Ramamurthy O Dihbadu, Gorle Satyam, Gorle Surappalanaidu,
Gorle Papinaidus, Gorle Haribabu, Gorle Venunaidu (A-23 to A-30 respectively), Datti
Appayya (A-32), Gorle Sreeramulu, Relli Sanyasapudu, Gorle Sanasappadu, Pisini Satyam,
Gorle Bodinaidu, Buri Papudu (A-34 to A-39 respectively). Gorle Raminaidu
(A-16) and Potnuru Raminaidu (A-22) were convicted for offence punishable under
Section 341 of the Indian Penal Code, 1860 (for short the 'IPC') and sentenced
to undergo rigorous imprisonment for one year with a fine of Rs.500/-.
Meesala
Chandramouli (A-3), Gorle Ramaswamy (A-4), Gorle Harinarayana (A-7), Muntha Prasadarao
(A-9), Pyla Venkatasuri (A-10), Gorle Sanyasappadu (A-11), Gorle Ramakrishna (A-13),
Gorle Raminaidu (A-16), Muntha Banoji (A-17), Relli Paoinaidu (A-18), Muntha Pardhasaradh
(A- 20), Gorle Ramana (A-21) and Potnuru Raminaidu (A-22) were convicted for
offence punishable under Section 324 IPC and sentenced to undergo RI for two
years and also to pay a fine of Rs.500/-each. Gorle Asirinaidu (A- 1), Gorle Vasudevarao
(A-2) and Gorle Mohanarao (A-8) were convicted for the offence punishable under
Section 302 IPC and each was sentenced to undergo imprisonment for life. The
sentences of imprisonment imposed on A-16 and A-22 were directed to run
concurrently.
Three
appeals were filed before the Andhra Pradesh High Court, two by the convicted
accused persons, and one by the State against acquittal of the accused persons
as noted above.
Sans unnecessary
details the prosecution version as unfolded during trial is as follows:
The
deceased persons Kurmi Naidu and Meesala Jogulu were residents of Patharlapalle
village. The deceased Kurmi Naidu was the second son of the first wife of Gorle
Suryanarayana Naidu (PW-4). Kurmi Naidu was a student of Bachelor of
Engineering at the relevant time. There was a fire accident in their village
i.e. Patharlapalle wherein more than four hundred houses were burnt. The
Government and the insurance company sanctioned Rs.500/- and Rs.1,000/-
respectively to owner of each of the houses which was burnt. A group of persons
headed by Hari Babu (A-29) started saying that they had got sanctioned the
amount and asked the recipients to pay Rs.100/- each. The persons, who did not
pay the amount so demanded came and complained to PW-4. On that score a group
rivalry started. One group was headed by A-29 and the other group by PW-4. In
the year 1989, G. Ramarao (A-5) started 'Indira Priyadarsini Yuvajana Sangam'.
The said Sangam started collecting Rs.50/- from each of the members. Whenever
any village refused to join the Sangam, the members of that Sangam used to
damage their agricultural implements like carts etc., and also the crops. The
said Sangam entertained a grouse against PW-4 thinking that he was causing
obstruction to their activities. About one year prior to the death of the
deceased (on 10.4.1991) all the accused and some others attacked the house of
PW-4 by hurling bombs. As there was no safety in the village, and threat to his
life, PW-4 started living in the house which is situated in his land at Nakkalacheruvu.
Three months prior to the present incident the deceased Kurmi Naidu came down
to Patharlapalle from Madras. All the household supply cards
which were taken away by the group of A-29 in his village were kept in the
house of A-15. So some residents of Patharlapalle sent a petition to the Mandal
Revenue Officer who came to the house of A-15 (Gorle A. Kasavayya) and seized
375 cards. This led to further grouse against PW-4 as he was considered
responsible for such seizure of the household supply cards. Thereafter, all the
accused decided to do away the life of PW-4. Gorle Ramarao (A-5) is the
President of Yuvajana Sangam. Some of the accused and other villagers are members
of the Sangam. On 23.12.1990 PW-5 accompanied the deceased to Visakhapatnam. On return from Visakkhapatnam, at Ranasthalam
one Komati Satyam informed the deceased and PW-5 that Haribabu and his group
were lying in wait for Kurmi Naidu on the road leading to Patharlapalle, and
thereafter they changed their route and proceeded to Nakkalacheruvu via Theppalavalasa.
Due to
fear of the Sangam headed by A-5 some persons joined in that Sangam. A-5 asked
the members to commit thefts of coconuts or carts.
Some
amounts were collected in the name of Yuvajana Sangam and spent away by A-5 for
consumption of alcohol. The members of the Sangam used to beat the followers of
PW-4 and also took away household supply cards from their houses and kept them
with A-15.
Three
weeks prior to the death of deceased when PW-4 was present in his house, he
heard A-2, A-3, A-9, A-10, A-17 and A-37 and some others were talking in the Sangam,
and it was decided to do away with the life of PW-4 and his son (deceased Kurmi
Naidu). One day prior to death of deceased, when PW-9 went to the bank at 12
noon, he found A-1, A-2, A-3, A-5, A-10, A-18, A-19, A-26 and A-37 and some
others and at that time A-37 was telling others that Kurmi Naidu had gone to Srikakulam
and while returning to the village he should be done to death near Haribabu's
garden, which was suitable for the purpose. One day prior to the death of
deceased, G. Ramana (PW-10) was proceeding to the village at about 11 p.m. and when he peeped through beneath the eves of
cattle shed of P. Ramamurthy (PW-2) he found all the accused persons. He heard
telling A-29 to other accused that the deceased Kurmi Naidu and his father were
coming in their way and therefore they have to be killed. He found liquor
bottles with glasses. On the next day PW-10 informed PW-4 all that he had
heard. But PW-4 did not heed to his words.
On the
date of occurrence at about 2 p.m. while he
was returning from his land, he saw A-3 armed with crowbar like spear, A-1
armed with wooden plank and the remaining accused persons armed with stout
sticks proceeding towards Kosta side from Peddagudibadi.
On the
date of occurrence i.e. 10.4.1991 at about 9 p.m. PW-1 left for Srikakulam, where he collected some amount from S.M. Pyarijan
(PW- 17) and after purchasing a dhoti he came to Kasta junction. At that time
both the deceased (Kurmi Naidu and Jogulu) were coming on a motorcycle.
When
PW-1 made a request to them for a lift, they agreed and all three were
proceeding towards Patharlapalle village on the motorcycle.
Similarly,
V. Sreeramulu (PW-2) was returning to Surampeta village after handing over the
cycle which which he had hired from P. Jagannadham (PW- 18) at Kosta junction.
D. Ankamma (PW-3) after collecting cashew nuts and mangoes was on way to her
house at Patharlapalle in the afternoon.
When
deceased 1 and 2 reached about one kilometer after Derasam near the mango grove
of A-29, A-1 armed with a wooden plank beat deceased (Kurmi Naidu) on his head.
Thereafter, the motorcycle proceeded further to a distance of 50 yards and at
that place there is a culvert. At that time A-4, A-12 and A-25 placed a cart
across the road. Therefore, the deceased persons and PW-1 stopped the
motorcycle. A-5 and A-6 beat deceased (Kurmi Naidu) with stout sticks on the
head. When the deceased (Jogulu) guestioned the accused about such
highhandedness, A-2 beat him with a stout stick on his head and as a result of
such assaults, deceased Jogulu fell down. Thereafter A-4, A-7, A-9, A-10, A-11,
A-13, A-26 beat deceased Kurmi Naidu indiscriminately. When deceased Kurmi Naidu
fell down, A-3 poked on his throat with a spear. Then A-1, A-4, A- 7 and A-9
tied the deceased Kurmi Naidu with a rope and carried him towards eastern side.
A-23, A-24, A-27 and A-28 tied deceased Jogulu with a rope and also carried him
towards eastern side. When some of the accused were saying that PW-1 should not
be allowed to live and thought of throwing him into a well, he ran towards
eastern side. But fell down at Lankalacheruvu tank bund. Then some of the
accused beat him and tied him in the cattle shed. At about 7 p.m., some of the accused came there and untied him and
threatened him that he should not reveal the incident to anybody and if he
revealed the same, he would be killed. Thereafter PW-1 went to his house and
informed about the incident to his elder brother Silla Arjuna.
The
Sub Inspector of Police, Jagannadharajapuram N. Rama Rao (PW- 24) received a
phone message about the kidnapping of Kurmi Naidu on 10.4.1991 at about 5.30 p.m. Then he immediately proceeded to Patharalapalle and
he was told by the police personnel present in the picket that persons were
talking about kidnap of deceased Kurmi Naidu.
At
about 9 p.m., the Inspector of Police namely, Kamalanadha
Rao came to Pathalapalle. Then they received a vague information that PW-1 who
is resident of Sillapeta had sustained injuries. Thereafter, the Sub- Inspector
and the Inspector of Police proceeded to Silapeta and found PW-1 with injuries.
On the basis of PW-1's narration, PW-24 scribed a report. Then the Sub-Inspector
went to the police station and registered a case. He sent the original first
information report to the Court. When the Inspector of Police tried to send
PW-1 to the hospital, he refused.
Then
PW-25 examined PW-1 and recorded his statement and seized M.Os. 6 to 8 in the
presence of mediators under mediator's report. Then the Inspector of Police,
the Sub-Inspector and other police personnel formed a special party and combed
the area in search of the dead bodies of the deceased in the nearby thrashing
floors. On 11.4.1991, early morning at about 5.45 a.m. they noticed two dead bodies in the mango grove of A-25,
and the motorcycle was also found nearby. Thereafter they noticed the place of
occurrence which is at a distance of about one furlong from the place where two
dead bodies were found.
On the
basis of information lodged, investigation was done and on completion thereof
charge sheet was filed for the alleged commission of offences punishable under
Sections 147, 148, 201, 307, 323, 326, 341, 342, 397, 302 read with Section 149
and Section 120B and 109 IPC. During trial, Gorle Lottayyagari Satyam (A-31)
died and case against Muntha Pentadu @ Barrodu (A-33) was separated as he had
absconded. PW-4 who is the father of deceased Kurmi Naidu was stated to be the
intended target.
Reliance
was placed by the trial Court on the evidence of PWs 1, 2 and 3 to conclude
that accusations against some have been established, though against others it
was not credible and therefore benefit of doubt was extended to them. The High
Court by the impugned judgment found that the prosecution version was full of
holes, did not appear credible and the so-called eyewitnesses' evidence does
not inspire confidence. The evidence of PW-1 was held to be unreliable, as the
same appeared to be the outcome of careful planning and deliberation. Though he
claimed to have sustained several serious injuries, he did not go to the
hospital for treatment for nearly three days. He did not indicate the names of
all the assailants who allegedly had beaten him. According to him, after the
incident, he went to his house and told his brother that person of Peddagudibadi
and Thatigudibedi had beaten him and the deceased. Though he knew the names of
the accused persons prior to giving the information, he did not name them
specifically. There was delay in lodging the report and no explanation was
offered for it. There was also considerable delay in sending the FIR to the
Court. There was no reason as to why PW-4 did not lodge the report to the
police though the police outpost was situated just in front of his house, if he
was really informed by PW-1 and PW-3 as claimed by them. It was noticed that
the prosecution version was also incredible in the sense that if the accused
persons who were 39 in number had the motive of killing PW-4, they could have
done so in the village instead of going to the mango grove of A-29 and waiting
for coming of deceased Kurmi Naidu and then attack him without any motive for
doing so. Neither of the deceased was their target, and they did not have any
motive for killing them. In a faction- ridden village when two rival groups
were craving for the blood of each other, the prosecution version lacks
credibility and is full of inconsistencies. The trial Court was of the view
that entire evidence was not to be discarded, and even taking note of the
improvements, discrepancies, the evidence was sufficient for conviction of some
of the accused persons. Accordingly, as noted earlier, some of the accused were
convicted and others were acquitted. Judgment of the trial Court was assailed
by the convicted accused questioning their conviction and by State challenging
the acquittals. By a common judgment, three appeals (two by the accused and one
by the State) were disposed of. The High Court noticed that there was
considerable delay in lodging the complaint, recording statement of the
witnesses and there was no cogent material for statements. The correct
yardstick to be applied for evaluation of evidence was not done by the trial
Court and vague conclusions were arrived at. The trial Court failed to notice
that the prosecution tried to improve its case from stage to stage and from one
witness to another. That being so, the prosecution version collapsed on account
of incredibility in it. Consequentially, the High Court felt that the accused
persons were entitled to acquittal and accordingly directed. The State's appeal
was consequentially dismissed.
In the
present appeals, learned counsel for PW-4, father of deceased No.1 and the
State contended that the approach of the High Court is fallacious. Considering
the large number of accused persons, minor discrepancies in evidence should not
have found favour with the High Court to direct acquittal. It was submitted
that PW-1 was afraid apprehending danger to his own life after seeing the
manner in which the accused persons assaulted and killed two innocent persons.
Merely because he did not go for medical examination immediately, though asked
by the police, that cannot be a ground sufficient to discard his credible
evidence. Merely because PWs 1, 2 and 3 were in some way related with the
accused persons, that cannot be a ground for discarding their evidence. PW-1
was an injured person and, therefore, his evidence should have been acted upon,
as he has sufficiently explained his presence at the spot and has also
indicated why he happened to be at the spot of occurrence. Similarly, the
non-lodging of information for long cannot be a suspicious circumstance when
one considers the mental condition of PW-4 the father. He immediately went out
to search for the dead bodies, and was told on the next day morning about
finding of the dead bodies. Thereafter, the information was lodged around 11.30
a.m.
It was
further submitted that the High Court did not analyse the evidence in detail
and in a cryptic manner accepted the submissions of the accused persons and
directed acquittal.
Learned
counsel for the accused on the other hand submitted that the High Court has analysed
the evidence after considering the findings recorded by the trial Court. It has
highlighted as to how the prosecution version does not inspire confidence. It
is to be noted that originally there were 39 persons. A-31 died during trial
and so far as A-33 is concerned the trial was separated. The trial Court
acquitted 21 persons on the same evidence and convicted 16. The evidence is so
full of contradictions, that the benefit extended to 21 acquitted persons
should have also been applied logically to the persons who were convicted by
the trial Court, and the High Court corrected the legal infirmities which the
trial Court did not notice and came to the right conclusion about innocence of
the accused persons. In any event, it was pointed out that PW-1 does not speak
of any attack on the deceased by A- 2. According to him deceased Jogulu (D-2)
has received a single blow which caused his death and the same was inflicted by
A-10 who was acquitted by the trial Court. PW-1 categorically involved A-10 as
the assailant of D-2. Though PWs 2 and 3 named A-2 as the assailant, that
itself improbabilises the prosecution version. Only one blow was held to be a
fatal blow and it could not have been inflicted by A-2 and A-10 separately. As
there is inconsistency as regards who is the assailant of D-2, the benefit of
doubt was clearly available and the High Court has held this to be a factor for
acquitting A-2. The evidence of PW-2 and PW-3 show that during investigation
they did not name the accused persons categorically. In a vague way, it was
stated that supporters of A-7 had hit the deceased. To a similar effect was the
evidence of PWs 1 and 3. PWs 2 and 3 have also accepted about non-mentioning
specifically names of the accused persons to be the assailants. So far as PW-3
is concerned, she stated before the Magistrate in her statement recorded under
Section 164 of the Code of Criminal Procedure, 1973 (for short the 'Code') that
the occurrence took place at 10.00 a.m. This
is at great variance with the prosecution version as unfolded during trial.
Additionally,
she was not available for a period of 3 days and her statement was not
recorded. No explanation was offered for her absence.
Accordingly,
it was submitted that the High Court's judgment does not suffer from any
infirmity to warrant interference at our hands.
Though
mere acquittal of large number of co-accused persons does not per se entitle
others to acquittal, the Court has a duty in such cases to separate the grain
from the chaff. If after sieving the untruth or unacceptable portion of the
evidence residue is sufficient to prove the guilt of the accused, there is no
legal bar in convicting a person on the evidence which has been primarily
disbelieved vis-`-vis others.
But
where they are so inseparable that any attempt to separate them would destroy
the substratum on which the prosecution version is founded, then the Court
would be within its legal limits to discard the evidence in toto. In the
aforesaid background, the evidence of PWs 1, 2 and 3 who are stated to be
eyewitnesses is to be analysed. The High Court has doubted the truthfulness of
the PW-1 who claimed that he did not get medically examined being afraid of the
accused persons. That is clearly unacceptable. He claimed to have stated before
the police officers about the incident and on the basis of that the first
information report was recorded. Thereafter, there was no reason for him to be
apprehensive as claimed not to go for medical treatment. If really he was so
terrified it is not understood as to how after two days the fear vanished and
he went for treatment. The conduct of PW-4, the father of deceased No.1 is
equally shrouded in mystery. Though the Police post was just in front of his
house, he did not choose to inform the police and the FIR was lodged after
considerable length of time. Though in all case delay in lodging the FIR does
not attract suspicion, yet on the facts of a particular case the same is
certainly a factor to be considered. In the case at hand, in the absence of any
plausible explanation for the delay, it certainly was a suspicious circumstance
making the prosecution version vulnerable. In this case the occurrence
allegedly took place at about 4.00 p.m. on 10.4.1991,
FIR was lodged at about 11.30
p.m. and reached Court
at about 10.00 a.m. on 11.4.1991.
The
delay, considering the fact that there was police outpost just in front of
PW4's house and Court was at a very short distance, has not been explained.
Additionally, as rightly submitted by learned counsel for the
accused-respondents, A-2 was not indicated to be the author of the assaults so
far as deceased Jogulu is concerned There is clear contradictions between the
version of PW-1 on the one hand and PWs 2 and 3 on the other as regards the
assailants of deceased No.2 (Jogulu). The evidence of PW-3 who claimed to have
informed PW-4 is equally baffling.
She
has accepted before the Magistrate in her statement recorded under Section 164
of the Code that the occurrence took place at 10.00 a.m. One more thing which
needs to be noticed to cast doubt on the evidence of PW-1 is that he claimed to
have received the money from PW-17, at about 2.00 p.m. and then to have
returned. Thereafter he had left for returning home. On the contrary PW-17
states that money was paid at 11.00 a.m. That itself throws doubt regarding the
possibility of his presence at the alleged time of occurrence. Several other
factors which throw considerable light on vulnerability of the prosecution
version are the alleged search by PW-4 and others for the dead bodies.
According to the prosecution version, the dead bodies were found 15 to 20 yard
from the culvert near which the alleged occurrence took place. It is highly
improbable that when PW-4 went for searching the dead bodies on allegedly
getting information about the assaults, they could not trace the bodies. The
plea that he could not lodge the FIR and had to wait for searching by police which
purportedly got the dead bodies early in the morning is equally implausible.
Even if that is accepted for the sake of argument it is absolutely not
explained in any manner why the FIR could not be registered immediately
thereafter and several hours had to pass by. Though the FIR is not supposed to
an encyclopedia of the factors concerning the crime, yet there must be some
definite information vis-`- vis the crime. That does not appear to be the case
at hand. Similarly, PWs-2 and 3 accepted that they did not specifically name
any accused person during investigation, and only said that followers of A-7
were the assailants. That is not sufficient when definite names were stated in
Court. This is not an elaboration of a statement already made, and on the
contrary is a vital omission. Certain other factors, which otherwise would not
have been of much relevance, have assumed importance in the present case. If
PW-1 had stated before the police, the details as contained in the FIR, there
was really no necessity of calling a dog squad on 11.4.1991. This to a great
extent shows that the police were not sure who the assailants were. Admittedly,
dog squad was taken to the place of occurrence at about 1.00 p.m. on 11.4.1991,
and dogs were taken to various houses in the village to know about the
assailants. PW-24's statement that dogs are taken when assailants are not known
is very significant. It cannot be said that view taken by the High Court is not
a possible view.
The
respective stands need careful consideration. There is no embargo on the
appellate Court reviewing the evidence upon which an order of acquittal is
based. Generally, the order of acquittal shall not be interfered with because
the presumption of innocence of the accused is further strengthened by
acquittal. The golden thread which runs through the web of administration of
justice in criminal cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to
his innocence, the view which is favourable to the accused should be adopted.
The paramount consideration of the Court is to ensure that miscarriage of
justice is prevented. A miscarriage of justice which may arise from acquittal
of the guilty is no less than from the conviction of an innocent. In a case
where admissible evidence is ignored, a duty is cast upon the appellate Court
to re-appreciate the evidence where the accused has been acquitted, for the
purpose of ascertaining as to whether any of the accused really committed any
offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme 567). The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable and relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for interference. These
aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.
State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi
v. State of Gujarat (1996 (4) Supreme 167), Jaswant
Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
Jha v.State of Bihar and Ors. (2003 (7) Supreme 152),
State of Punjab v.Karnail Singh (2003 (5) Supreme
508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)
Supreme 17) and Suchand Pal v. Phani Pal and Anr. (JT 2003 (9) SC 17).
That
being so, it would not be appropriate in the circumstances of the case to
interfere with the elaborately discussed and well-reasoned judgment of the High
Court. The appeals fail and are dismissed.
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