The State of A.P. Vs Karri Rami Reddy

Heard Sri C.P.Somayaji, learned Additional Public Prosecutor appearing for the appellant/State and Sri K.Satyanandam, learned counsel representing Sri T.V.Jaggi Reddy, learned counsel for the respondent/Accused.

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The appeal is preferred by theState challenging the judgment dated 31.05.2007 delivered in S.C.329 of 2005 on the file of the learned Assistant Sessions Judge, East Godavari at Kothepeta.

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The respondent herein is the Accused before the learned Assistant Sessions Court.

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The trial Court found the respondent/accused not guilty for the charge U/secs.448 and 307 IPC. Accordingly, acquitted the accused U/s.235(1) Cr.P.C. Therefore, the appeal came to be preferred by the State.

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For the sake of convenience, the parties hereinafter referred to as they were arraigned before the learned Assistant Sessions Court.

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CASE OF THE PROSECUTION:

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The case of the prosecution is that on 06.04.2005 at about 07.00 p.m.

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P.W-2 was alone present in the house. She heard calling bell ringing. She

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opened the door. Accused standing at the door beat her o head. She ran into house. Accused followed her. Again, beat her on head four times with a rod (M.O-1). Blood oozed from the injuries. Accused ran away. She made a phone call to her husband (P.W-1) intimating that she was beaten. Later she fell unconscious. P.W-1 immediately went to the house and found P.W-2 in unconscious condition. Immediately with the help of sons and father-in-law, shifted P.W-2 to the hospital of Dr.Jaya Sree in Ravulapalem. Later, P.W-1 along with P.W-3 and others went to police station. P.W-1 presented Ex.P-1 report to SI of Police. SI of Police registered the same as a case in Cr.No.24/2005 for the offence U/secs.448, 324 IPC at 08.00 p.m. vide Ex.P-10 FIR.

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SI of Police visited Dr.Jaya Sree Hospital at Ravulapalem. P.W-2 was not in a position to make statement. He recorded statement of P.W-1 at Dr.Jaya Sree Hospital. Later, on 07.04.2005, he visited GSL Hospital at Rajanagaram, examined P.W-2 and recorded her statement in the presence of the doctor. He also examined P.W-3, P.W-6 and others and recorded their statements. He visited the house of P.W-1, collected mediators, observed the scene of offence under the cover of Ex.P-6 report, prepared a rough sketch under Ex.P-11. P.W-7 photographed the scene of offence at the request of P.W-10. Investigation Officer also examined P.W-7 and others at the scene of offence, recorded their statements. Basing on the investigation, took steps to alter the section of law from 324 IPC to 307 IPC. Accordingly, he filed memo before the Court.

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On 16.04.2005, on information, he proceeded to the Junior College Road, secured mediators. He arrested the accused and recorded his statement under Ex.P-7. Basing on the statement of accused, he recovered M.O-1 iron pipe at the irrigation canal in front of the house of P.W-1. He seized M.O-1 under the cover of Ex.P-8. Later, he received Ex.P-9 wound certificate issued by P.W-9, doctor, who examined P.W-2 at GSL Hospital. After conclusion of investigation, laid charge sheet before the Court.

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The case was taken on file as PRC 39/2005 by the learned Magistrate. It was committed to the Court of Sessions, East Godavari Division at Rajahmundry. It was made over to the Assistant Sessions Judge, East Godavari at Kothapeta vide S.C.No.329/2005.

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The learned Assistant Sessions Judge charged the accused for the offence U/secs.448 and 307 IPC. The accused pleaded not guilty and claims to be tried.

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EVIDENCE FOR THE PROSECUTION :

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During trial, the prosecution examined PWs 1 to 10. During their evidence, filed Exs.P-1 to P-12 documents, apart from M.O-1 iron rod.

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The accused was examined U/s.313 Cr.P.C.regarding the incriminating circumstances appearing against him from the evidence of the prosecution.The

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accused denied all those circumstances as false.No defence evidence was placed for the accused.

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FINDING OF THE SESSIONS COURT :

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The learned Assistant Sessions Judge, on consideration of the above evidence, found the accused not guilty for the above charges. Accordingly, acquitted the accused. Hence, the appeal came to be preferred by the State, challenging the judgment of the Assistant Sessions Judge on various grounds.

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SUBMISSIONS ON BEHALF OF THE APPELLANT/STATE :

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The learned Additional Public Prosecutor vehemently argued that the learned trial Court committed grave error on facts and came to an erroneous opinion that the prosecution failed to prove the charge. He would submit that the said finding of the trial Court is not based on evidence. The trial Court basing on surmises came to such an opinion. He would further submit that the evidence of the injured witness/P.W-2 is alone sufficient to establish the case of the prosecution, in the light of section 134 of the Indian Evidence Act, even if other evidence is ignored. He would further submit that P.W-2 categorically deposed that on 06.04.2005 at about 07.00 p.m. the accused came to the house, rang the calling bell. She opened the door. Immediately, accused beat her on the head with rod. She ran into the house to escape from the accused, but the accused followed her into the house. Again, beat her on the head several times and ran away. Thereafter, P.W-2 immediately inspite of bleeding from the injuries, could

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able to call her husband (P.W-1) over phone and intimated him about the incident. Immediately, P.W-1 came to the house.

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P.W-1 evidence would corroborate the testimony of P.W-2 on all aspects. P.W-1 immediately shifted P.W-2 to nearby hospital i.e., Dr.Jaya Sree Hospital at Ravulapalem for first aid. After first aid, she was shifted to GSL Hospital, Rajanagaram, for better management. P.W-1 went to police station and presented Ex.P-1 report. P.W-2 regained consciousness only in the hospital at later point in time. Therefore, P.W-1 could not know the name of the assailant and presented EX.P-1 as unknown person beat P.W-2. Later, P.W-2 regained consciousness and disclosed the name of the accused to all including the Investigation Officer.

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The evidence of the Investigation Officer would disclose that basing on the evidence of P.W-1, P.W-6 and others, suspected the accused involvement in the commission of offence and arrested him in the presence of mediators near junior college, as mentioned in the arrest report, and basing on his confession, which disclosed a fact about the availability of M.O-1, seized the same in the presence of mediators. Therefore, all the circumstances unerringly, beyond reasonable doubt would establish that the accused alone was responsible for the offence and motive was also proved by the prosecution. But, the learned trial Court failed to consider the above aspects. On the other hand, basing on certain surmises and conjectures, came to an opinion that the prosecution failed to prove the

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identity of the offender beyond reasonable doubt. Therefore, the finding of the trial Court led to travesty of justice. It is a fit case to interfere to set aside the judgment of the trial Court and convict the accused.

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SUBMISSIONS ON BEHALF OF THE RESPONDENT/ACCUSED :

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The learned counsel for respondent/accused would argue that undisputedly, the evidence on record would disclose that the name of the accused did not come into picture till registration of FIR. Until then it is the case of the prosecution that unknown person beat P.W-2. Later, after deliberations, the accused was implicated in the case, fabricating story of motive through P.W-6. The evidence of P.W-9, doctor would disclose that by the time P.W 2

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was conscious when admitted in GSL Hospital at Rajanagaram, she was coherent and in a fit state of mind to make statement. The doctor questioned her about the injuries sustained by her. She made statement to the doctor that unknown person beat her. The statement under Ex.P-9 recorded by the doctor would show that she made the statement at 08.00 p.m. on 06.04.2005.

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P.W-2 in the cross-examination admitted that she regained consciousness at Dr.Jaya Sree Hospital. She informed her sons that accused beat her. She further deposed that she informed her husband (P.W-1) also about the same when she spoke to him over phone. But, surprisingly, P.W-1 says that P.W-2 fell unconscious and she regained consciousness only on the next day, and therefore, he could not know the name of the accused at the time of Ex.P-1

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report presented to police, and therefore, he mentioned in Ex.P-1 report that unknown person beat P.W-2. The story relating to motive is also introduced at a later point in time for the reasons best known to P.W-1 through P.W-6, who is the driver of P.W-1, stating that some days prior to the incident, accused intimated P.W-6 that he will beat P.Ws-1 and 2 as they are responsible for cancellation of the marriage of his brother. P.W-6 evidence would disclose that he intimated the P.W-1 immediately. But P.W-1 deposed that he did not take any action at that point in time on the accused. If really P.W-6 intimated P.W-1 about the statement made by the accused, P.W-1 will not remain silent without intimating the police.

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All the above circumstances would disclose that the name of the accused pressed into service subsequent to registration of FIR, for the reasons best known to the Investigation Officer and P.W-1.Therefore, they made P.W-2 tospeak the name of the accused, and accordingly, P.W-2 also identified the accused as assailant in the case. In those circumstances, the learned trial Court came to an opinion that the evidence of P.W-2 is not inspiring confidence and there is every likelihood of bringing the accused into picture at a later stage, for the reasons known to P.W-1 and the Investigation Officer. It creates a doubt over

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the credibility of the case of the prosecution. Therefore, it is not safe to rely on the evidence of P.W-2 to conclude that accused beat her. Accordingly, found him not guilty.

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He would further submit that the view expressed by the trial Court is also possible in the facts and circumstances of the case submitted above. When two views are possible from the evidence placed before the Court, the view taken by the trial Court, shall not be disturbed by the Appellate Court, unless the view taken by the trial Court is perverse, not based on evidence or material evidence is ignored.

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In the light of law relating to appeals against acquittal, there are no grounds to interfere with the judgment of the trial Court, in the case on hand. Hence, appeal may be dismissed.

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In light of the above rival contentions, the point that would arise for consideration in this Criminal Appeal is as under:

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“Whether there are grounds to interfere with the judgment of the

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learned Assistant Sessions Court?”

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POINT : The scope of interference in an appeal against acquittal was dealt with by the Hon‟ble Supreme Court in N.Vijay Kumar case, Hon‟ble Apex Court atpara Nos.20 to 23 observed, as under:

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“ 20. Mainly it is contended by Shri Nagamuthu, learnedSenior Counsel appearing for the appellant that the view taken by the trial court is a “possible view”, having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for

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acquittal. Under Section 378 Cr.P.C., no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this court in the Judgment in Chandrappa Vs. Stateof Karnataka¹ has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal. Para 42 of the Judgment which is relevant reads as under: (SCC p.432)

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc., are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the 1 (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325.

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presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basisof the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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21. Further in the judgment in Murugesan² relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said Judgment, distinction from that of „possible view‟ to „erroneous view‟ or „wrong view‟ is explained. In clear terms, this Court has held that if the view taken by the trial court is a „possible view‟, the High Court not to reverse the acquittal to that of the conviction.

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22. The relevant paragraphs in this regard where meaning and implication of „possible view‟ distinguishing from „erroneous view‟ and „wrong view‟ is discussed are paras 32 to 35 of the judgment, which read as under: ( Murugesan case, SCC pp.392-97)

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“32. In the above facts can it be said that the view taken by the trial court is not a possible view? If the answer is in the affirmative, the jurisdiction of the High Court to interfere with the acquittal of the appellant-accused, on

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2 Murugesan v. State (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69.

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the principles of law referred to earlier, ought not to have been exercised. In other words, the reversal to earlier, ought not to have been exercised. In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasized that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression „possible view‟ is conscious and not without good reasons. The said expression is in contradistinction to expressions such as „erroneous view‟ or „wrong view‟ which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.

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33. The expressions “erroneous”, “wrong” and “possible”are defined in Oxford English Dictionary in the following terms:

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„erroneous. – wrong; incorrect.

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Wrong. – (1) not correct or true, mistaken.

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(2) unjust, dishonest, or immoral.

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Possible. – (1) capable of existing, happening, or being achieved.

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(2) that may exist or happen, but that is not certain or probable.

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34. It will be necessary for us to emphasize that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside thearena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority

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perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.

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35. A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefore,relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power under Section 378 Cr.P.C., was not called for.”

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23. Further, in Hakeem Khan v. State of M.P.³ this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the Judgment reads as under: (SCC pp. 722- 23)

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3 (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653.

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“9. Having heard the learned counsel for the parties, we are of the view that the trial court‟s judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e., under Section 302 read with Section 149 of the Penal Code. Themost important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m., to 7.00 p.m., of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent

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may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court‟s ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place.”

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Keeping in view of the principles laid down in the decisions referred to above, I shall proceed to deal with the present appeal.

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The case of the prosecution is already mentioned above that on 06.04.2005 at about 07.00 p.m. P.W-2 was alone in the house. Accused came to the house of P.W-2. He ranged the calling bell. P.W-2 opened the door. Immediately, he beat P.W-2 on the head with an iron rod. P.W-2 ran into the house. Accused followed her. Again, beat her many times on the head, causing grievous injuries and ran away. P.W-2 suffered bleeding injuries. She called P.W-1 i.e., her husband over phone and intimated him that she was beaten by somebody. P.W-1 immediately rushed to the home, shifted her to the nearby hospital i.e., Dr.Jaya Sree Hospital. P.W-2 was unconscious at that time. P.W-1 immediately went to the police station and presented Ex.P-1 report, intimating that unknown person beat P.W-2 on the head at home. P.W-10 registered the same as Ex.P-10 FIR and took-up investigation. He went to Dr.Jaya Sree Hospital. P.W-2 is unconscious and not in a position to make statement. Therefore, he recorded statement of P.W-1 at the hospital.

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On 07.04.2005, he again visited hospital at Rajanagaram i.e., GSL Hospital and examined and recorded statement of P.W-2. Later, examined some other witnesses. He visited scene of offence, conducted observation proceedings. Later, basing on the material revealed in the investigation, arrested the accused and seized M.O-1 basing on his confession.

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ANALYSIS :

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The evidence of P.W-2 and the evidence of doctor i.e., P.W-9, P.W-1, P.W-3 would establish that P.W-2 was at home on 06.04.2005 at about 07.00 p.m. she was beaten on the head, resulting bleeding injuries.The evidence of P.Ws-1 and 2, if read together would disclose that P.W-2 made a phone call to P.W-1 about the incident.Immediately, P.W-1 came to home. Here, the evidence of P.W-1 is that his wife i.e., P.W-2 did not inform him the name of the assailant

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when she made the phone call. By the time, he went to home, she was unconscious. Hence, he shifted her to Dr.Jaya Sree Hospital for treatment and from there, he went to police station and presented Ex.P-1 report. Ex.P-1 also does not disclose the name of the offender/assailant. P.W-2 evidence would disclose that during examination of police, she disclosed the name of the accused/offender. But, in the cross-examination, she admitted that she regained consciousness while she was at Dr.Jaya Sree‟s Hospital. She informed her sons about the name of the accused. Further, she made a statement that she informed her husband about the name of the accused that she made a call soon after the incident. It would create a doubt about the credibility of the case of the prosecution regarding fixing the accused as offender in the case. If really P.W-2 intimated her husband about the name of the accused when she made the call

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and if she intimated her sons in the hospital in their village, why the name of the accused is not mentioned in Ex.P-1 report presented by P.W-1 to the police.

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P.W-1 intends to say that P.W-2 is in unconscious state, and she did not disclose

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the name of the accused. But, P.W-2 categorically deposed that she disclosed the name of the accused P.W-1 when she made the phone call.

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P.W-9 is the doctor, examined P.W-2 at GSL Hospital, Rajanagaram. His evidence would disclose that he questioned P.W-2 as to how she suffered injuries. She made a statement that unknown person beat her. According to P.W-9, she was admitted in GSL Hospital at about 08.00 p.m. on 06.04.2005.

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Ex.P-1 was also presented to the police at the same time. P.W-9 admitted that P.W-2 was conscious, coherent and fit to make statement, when he examined her at about 08-00 p.m. in the hospital. So, all these circumstances would create a doubt that P.W-2, P.W-1 and her family members do not know who beat P.W-2. Therefore, when she made a call to P.W-1, she intimated him that unknown person beat her. For this reason, P.W-1 presented Ex. P-1 report stating that unknown person beat P.W-2. But, later, it appears some deliberations took place between P.W-1 and the Investigation Officer. Then the story of accused beating P.W-2 came into existence. Accordingly, the statement of P.W-2 was recorded on the next day i.e., on 07.04.2005 mentioning the name of the accused.

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To support the theory of involvement of accused, it appears P.W-6 was brought into picture to make a statement that earlier the accused stated to him that he will beat P.Ws-1 and 2, as they are responsible for cancellation of the

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marriage of his brother. His evidence would disclose that the marriage of brother of accused was solemnized long prior to the incident with another girl. P.W-6 deposed that he intimated P.W-1 about the statement made by accused to him that he will beat P.Ws-1 and 2. If really it is true, P.W-1 will take care of his wife

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and other family members or report the matter to the police that accused is intimidating his family members to kill them. This story would find place in Ex.P-1 expressing doubt over the accused as the suspect. Surprisingly, it is not found place in Ex.P-1 for the reasons best known to P.W-1 or in his statement made to police on 06.04.2005. It shows that this theory was introduced at a later point in time, only to say that the accused has a motive to beat P.W-2.

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Therefore, all the above circumstances coming out from the evidence on record would create a doubt about the veracity of the testimony of P.Ws-1 to 3, P.W-6 regarding fixing the accused as offender in the case. Thereby creates a reasonable doubt about the story of the prosecution that accused beat P.W-2. The evidence would establish that P.W-2 beaten by some person. But the evidence on record is not inspiring confidence in the mind of the Court to believe that accused beat the P.W-2.

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The above facts would establish that, the view expressed by the learned trial Court is also possible from the evidence placed before theCourt, as rightly argued by the learned counsel for the accused. It shall not be disturbed.

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