Full Judgment Text
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CASE NO.:
Appeal (crl.) 232-234 of 1997
PETITIONER:
Gorle S. Naidu
RESPONDENT:
State of A.P. and Ors.
DATE OF JUDGMENT: 15/12/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
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.
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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
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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
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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
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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
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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
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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.