Gamini
Bala Koteswara Rao & Ors. Vs. State of A.P. Thr.Secretary [2009] INSC 1459
(19 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.
634-635 OF 2008 GAMINI BALA KOTESWARA RAO & ORS. .. APPELLANT(S) vs.
O R D E R
This
appeal by way of special leave arises out of the following facts:
On 6th
March, 1995 Mandal elections were to be held in village Gadiparthivaripalem.
Two of the candidates contesting the election were the deceased Soodidela
Satyanarayana Reddy and Mandap Venkateswarlu, one of the accused (A.6).
At about
7.00 a.m. the deceased was standing along with PW.1 his nephew, Soodidela
Bapireddy, in front of the polling station, when all the accused, 20 in number,
armed with lethal weapons such as axes, knives, sticks and stones attacked him.
A.1 Kotesswara caught hold of the deceased by his hair and gave two blows with
a stone on his forehead and also stabbed him with a knife on his chest, A.2
Hanumantha Rao and A.3 Krishniah who were both armed with axes caused injuries
on the back of the head of the deceased whereafter A.1 again stabbed the
deceased on his shoulder.
-2- On
receipt of the injuries the deceased fell to the ground.
The
accident was witnessed by Pw.1 and in addition by PW.5- Pambha Soubhagyamma, a
vegetable hawker. PW.1 raised an alarm whereupon PW.6 and PW.7, Soodidela
Subbamma and Soodidela Vijaylakshmi, rushed and found that the victim was
bleeding from serious injuries. They attempted to move him towards his house
but he passed away after a short while. The other accused A.4 to A.20
thereafter hurled stones on the witnesses including PW.1 and PW.5 causing one
simple injury with a stone on the back of PW.1. PW.12 and PW.16 an ASI and Head
constable, who were on polling duty in the village, also rushed to the spot and
saw the accused throwing stones at the opposite party. PW.12 too identified the
accused at that stage. Certain other witnesses later rushed to the place and
found the deceased and PW.1 lying there with injuries. Information was also
sent to PW.22 the Sub-Inspector of Police, Chimakurthy, who rushed to the
village and recorded the PW.1's statement and the First Information Report was
registered on its basis at the police station at about 11.30 a.m. PW.23 the
Inspector of Police, Ongole, Rural Circle, thereafter took up the investigation
and visited the scene of occurrence and, amongst other items, seized the stone
allegedly used by A.1 in the attack on the deceased. He also dispatched the
dead body for its post-mortem examination. The post-mortem -3- revealed the
presence of eight injuries on the dead body.
Several
other doctors (PWs. 14,15 &19) also treated PW.1 and PWs. 2 to 4 and gave
them wound certificates for the injuries they had allegedly suffered. On the
completion of the investigation all the accused were charged under Sec.148 of
the IPC, A1 to A3 were charged under Sec.302 of the IPC and the others under
Sec.302 read with 149 IPC and under Sec.324 of the IPC. They all pleaded not
guilty and were brought to trial.
The
prosecution, in support of its case, placed reliance on several witnesses but
we are at this stage concerned primarily with the evidence of PW.1 and PW.5 the
two eye witnesses. On completion of the prosecution evidence the statements of
the accused were recorded under Sec.313 of the Cr.P.C. They pleaded false
implication.
Some
documents in evidence were also tendered by the accused.
The trial
Court in its judgment dated 5/9/2003 held that PW.1 the nephew of the deceased
was an interested witness, whereas PW.5 happened to be present at the place of
incident by chance as she belonged to another village and was a vegetable
hawker by profession. The Court observed that in this view of the matter it was
essential that some corroboration be sought on account of the very nature of
the evidence of these two witnesses. The Court -4- then went into the medical
evidence and found that the same did not support the ocular evidence inasmuch
the injuries found on the dead body did not correspond to the injuries referred
to by the eye witnesses as the number of injuries sustained by the deceased
were eight in number as per the post mortem certificate Ext. P.2, but the
evidence of PW.1 and PW.5 referred to only five injuries caused by the three
accused i.e. A.1 to A.3. The Court accordingly concluded that the genesis of
the incident had been suppressed and that apparent inconsistencies had occurred
in the eye witnesses account vis-a-vis the medical evidence and as these
omissions/inconsistencies went to the root of the matter the evidence of these
two witnesses could not be accepted. The Court further found that the evidence
with regard to the accused other than A.1 to A.3 was even more unacceptable
and, having held as above, acquitted all the accused. The State thereupon took
the matter to the High court in appeal. The High Court held that the eye
witnesses account of PW.1 and PW.5 fully corresponded with the medical
evidence; that the presence of the two witnesses had been fully explained and
that the so called improvements and inconsistencies referred to by the trial
Judge in the course of its lengthy judgment, were innocuous and did not go to
the root of the matter and could, therefore, be ignored and having held so (and
calling the judgment of the trial Court qua A.1 to A.3 as perverse) -5- partly
allowed the appeal and convicted them but confirmed the judgment of the trial
Court with respect to the other accused. A.1 to A.3 are before us by way of
special leave.
Mr.
L.N.Rao, the learned senior counsel for the three appellants has first and
foremost pointed out that the High Court was dealing with the matter as an
appeal against acquittal and in the light of the settled position in law if two
views on the evidence were possible the view taken by the High court in favour
of an accused, should not have been disturbed and that interference with a
finding of fact save in exceptional cases was not justified. The learned
counsel has placed reliance on (Ram Chander and Others vs. State of Haryana)
1983 (3) SCC 335, (State of Rajasthan vs. Raja Ram) 2003 (8) SCC page 180, (Jai
Singh and Others vs. State of Karnataka) 2007 (10) SCC 788 . On facts Mr. Rao
has urged that the observations of the trial Court that PW.1 was an interested
witness and PW.5 a chance witness called for no interference more particularly
as no corroborating evidence had come on record. He has further highlighted
that the medical evidence was completely at variance with the ocular evidence
and in that eventuality the accused were entitled to claim the benefit of doubt
in their favour.
The
learned State counsel has, however, supported the judgment of the High Court
and has pointed out that the High Court had dubbed the judgment of the trial
Court as -6- perverse and had for adequate reasons and a minute re- appraisal
of the evidence reversed the findings thereof.
It has
also been pointed out that the observation of the trial Court that there was
substantial differences between the statements given to the police and the
evidence given in Court vis-a-vis PW.1 and PW.5 was not correct as PW.1 who was
the author of the FIR had specifically mentioned that PW.5 had been present at
the time of incident and even in his statement under Sec. 161 Cr.P.C. this fact
had been noted.
We have
considered the arguments advanced and heard the matter at great length. It is
true, as contended by Mr. Rao, that interference in an appeal against an
acquittal recorded by the trial Court should be rare and in exceptional
circumstances. It is, however, well settled by now that it is open to the High
Court to re-appraise the evidence and conclusions drawn by the trial Court but
only in a case when the judgment of the trial Court is stated to be perverse.
The word `perverse' in terms as understood in law has been defined to mean
"against the weight of evidence". We have to see accordingly as to
whether the judgment of the trial Court which has been found perverse by the
High Court was in fact so. We have gone through the evidence of PW.1 and PW.5
very carefully with the help of the learned counsel. PW.1 stated that he had
come to the -7- place of incident as his uncle, the deceased, was a candidate
in the election. His presence is therefore absolutely natural. PW.5 stated that
she was vegetable vendor and had come to the site in order to sell her wares.
Mr. Rao,
has, however, sought to demolish her testimony by observing that she had
started from her house at about 7.00 a.m. (as stated by her) and had reached
the murder site after selling vegetables to several people and realising this
difficulty she had changed the time to 6.00 a.m. to suit the circumstance that
the murder too had committed at 7.00 a.m. We are of the opinion that
inconsistency can be ignored as the witnesses belonged to a deprived section of
society and her statement was being recorded after 8 years of the incident. It
also cannot be ignored that PW.5 was hawking vegetables and it would,
therefore, have been logical for her to have chosen the polling site for a
visit as that would have ensured a crowd, and a crowd would have meant good
business. Mr. Rao has also pointed out that PW.5 belonged to the Congress party
which was the party of the deceased as well whereas the appellants belonged to
the Telugu Desan Party and as such she could not be said to be an impartial
witness. The matter has been extensively dealt with by the High court and we
believe that had there been any motive to implicate any body on the basis of
party affiliations, the main role in the entire incident -8- would have been
ascribed to A.6 who was the rival candidate. On the contrary A.6 has been given
a very minor role in the entire incident and this was one of factors that had
let to his acquittal by the trial Court and the confirmation of that order by
the High Court as well.
Great
emphasis has been laid by Mr. Rao in the apparent discordance between the
medical and the ocular evidence. We reproduce herein the injuries found on the
dead body:
"1.
Incised injury 2" x 1/2" on lower border of left color bone,
extending downwards, backwards obliquely in the mid clavicular bone, through II
inter costal space into the upper to be of left lung, margins clean cut spindle
shaped,. cut section showed congestion of tissues injury in the lungs (L) is
1"
x
1/2" size.
2.
Incised injury 2" x 1/2" on left infrascapular area at the level of
4" thoracic vertebra 3" away from midline extending obliquely down
wards medically entered the plura cavity through 4th inter costal space.
2 3 3.
Incised injury 2" x 1/2" on front of lower third of left upper arm.
Muscle deep.
2 4.
Lacerated injury 2" x 1" on the left temple, muscle deep.
-9- 2 5.
Contusion 2" x 1" on right temple.
3 4 6.
Incised injury 2" x 1/2" on left half of occipital area 2" away
from left ear.
2 7.
Incised injury 2" x 1/2" on left half of occipital area 1" below
and medial to injury No.6 margins clean cut, spindle shaped, scalp deep.
3 4 8.
Incised injury 2" x 1/2" two in number on left shoulder pronounce.
Muscle deep margins clean cut, on cut section congestion of tissues
present."
A perusal
of the injuries would reveal that injury No.1 has been caused by A.1, Injury
No.2 either by A.2 or A.3, Injury No.3 by A.1, Injury Nos.4 and 5 by A.1 with a
stone and there are three or four additional injuries (on which emphasis has
been laid by Mr. Rao) as they remain unexplained. Even assuming, however, that
three injuries out of eight are unexplained, this one circumstance alone would
not destroy the flow of the other evidence.It is clear that the incident had
happened in the course of the Mandal Parishad Elections with several people
being involved and a large group of spectators being present at the spot. In
this scenario we feel that it would have been well nigh impossible for any
witness to have given a mathematical or precise description of all the injuries
that had been caused and that too in a melee. The fact -10- remains that the
injuries found on the dead body correspond fully with the weapons that had been
used. As a matter of fact injury Nos.4 and 5 which appeared to be inflicted
with a stone allegedly in the hands of A.1 clearly prove the veracity of the
story as it would have been inconceivable for a witness to have imagined that a
stone, (a very unusual weapon for a pre-planned attack) would be used as A.1
was also armed with a knife which he used after the injury had been caused with
a stone. We are thus of the opinion that the medical evidence does not in any
way contradict the ocular evidence.
We have
also gone through the so called improvements/inconsistencies in the statements
given by PW.1 and PW.5 to the police vis-a-vis their statements in court. It
must be emphasized that the incident happened in the year 1995 whereas the
evidence was recorded after about 8 years. Some discrepancies are, therefore,
bound to occur. The question to be noted is as to whether the discrepancies or
improvements are such which go to the root of the matter and affect veracity of
the prosecution's story. We are of the opinion that the evidence herein does
not fall within this slippery category. It is clear from the FIR recorded by
PW.1 and his statement in Court that PW.5 had been present at the time of the
incident. The other discrepancies that have been pointed out are to no -11-
avail keeping in view the over all picture. We are, therefore, of the opinion
that the High Court was fully justified in interfering in the matter and was
well within its jurisdiction to do so, even in the light of the judgments cited
by Mr. Rao. The appeals are, accordingly, dismissed.
.................J. (HARJIT SINGH BEDI)
.................J. (B.S. CHAUHAN)
New Delhi,
August 19, 2009.
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