Devatha
Venkataswamy @ Rangaiah Vs. Public Prosecutor, High Court of A.P [2003] Insc
438 (9 September 2003)
N.Santosh
Hegde & B.P.Singh. 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.
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