Sec.302 I.P.C. = The evidence of PWs. is quite contrary to the medical evidence. = THE STATE OF A.P. VS KARUBA HANUMANTHAPPA & 4 OTHERS= Reported in http://hc.ap.nic.in/csis/MainInfo.=CRLA&mno=624&year=2013

Sec.302 I.P.C. =
  When oral evidence is quiet contrary to the  Medical evidence , the very presence of eye witnesses becomes doubtful and in such an event no reliance can be placed on their evidence for convicting the Accused - Hence the lower court rightly acquitted the accused =
JAIKARAN AND OTHERS V. STATE OF U.P.[2], wherein it is held in paragraph No.12:
“Great emphasis was led on the approximate time of injury. That in no way affects the credibility of PW2’s evidence. Though the evidence of PW1 does not specifically indicate the injury on PW2, that is but natural. Before a young person two murders were committed and it is quite natural to create a sense of shock and minor variations in his evidence do not affect his testimony which is otherwise credible. Unless the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. (See Solanki Chimanbhai Ukabhai v. State of Gujrat reported in (1983) 2 SCC 174). To similar effect is the decision in State of U.P. v. Krishna Gopal reported in (1988) 4 SCC 302.”

So in view of the above decision no reliance can be placed on the evidence of PWs.1 to 3.
The specific case of PWs.1 to 3 is that A1 beat the deceased with a stone on the chest and A2 fisted her. 
The evidence of PWs.1 to 3 is quite contradictory to the evidence of the Doctor because he did not find any external or internal injuries on the chest of the deceased. 
He found an injury on the right eye and 
another injury on the chin. 
But he found that base of the skull has been fractured. 
The Doctor has categorically stated that the fracture injury on the skull is an independent injury and it cannot be caused with any corresponding external injuries No.1 and 2. 
He has also stated that if a person falls on the ground facing upwards, fracture of the skull cannot be caused. 
The evidence of PWs.1 to 3 is that after A1 causing injury to the deceased, she fell down facing upwards on the ground. 
So, it means she would have sustained injury on the backside or on the occipital region of the head. 
No such injury was found on the occipital region. 
Therefore, PWs.1 to 3 must not have witnessed actual assault on the deceased and they are not the witnesses of truth. 
The evidence of PW6 would also go to show that A1 beat the deceased on the chest with a stone, and as a result she fell down and became unconscious. 
Herself and neighbouring couple took the deceased in an auto to the hospital. Similarly, PW7 deposed in the same lines. Further when PW7 and her husband took the deceased to the Government Hospital in auto-rickshaw, the Doctor declared the deceased as brought dead. 
Then the Doctor asked PW7 and others to go to the house of the deceased and inform to her relatives. 
Therefore, this evidence rules out the presence of PWs.1 to 3 at the time of the incident. 
The evidence of PWs.6 and 7 has been disbelieved by trial Court as their evidence is quite contrary to the medical evidence.

CRLA 624 / 2013

CRLASR 4700 / 2008
PETITIONERRESPONDENT
THE STATE OF A.P.  VSKARUBA HANUMANTHAPPA & 4 OTHERS
PET.ADV. : PUBLIC PROSECUTORRESP.ADV. : 
SUBJECT: U/s.302 I.P.C AcquittalDISTRICT:  ANANTAPUR

HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM

CRIMINAL APPEAL No.624 OF 2013


JUDGMENT:- (per Hon’ble Sri Justice K.C. Bhanu)

                                    
This Criminal Appeal, under section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C."), is directed by the State against the judgment, dated
15-09-2005, in Sessions Case No.187 of 2002 on the file of Additional Sessions Judge, Hindupur, whereunder and whereby, the accused were acquitted of the charges leveled against them.

2.      The brief facts that are necessary for the disposal of the present appeal may be stated as follows:
A1 to A5 are closely related to each other; that there was a dispute existing between the material prosecution witnesses and the deceased Kuruba Sanjeevamma with regard to the passage, and for that reason, they used to quarrel with each other; that the accused were allowing the other persons to pass through the passage excepting the family members of the deceased, and for that reason, a quarrel ensured between the deceased and the accused on 26-06-2001 at 8.00 a.m.  That A1 to A5 formed into an unlawful assembly armed with sticks and stones and attacked the deceased and her family members and beat them with sticks and stones and caused the injuries; that as a result, the deceased fell down and became un-conscious, and when the other prosecution witnesses tried to interfere, some of the accused beat them. Immediately the deceased was shifted to Government Hospital, Hindupur where the Medical Officer after examining the deceased, declared as brought dead; that PW1 lodged a report with the police and police registered a case in Crime No.82 of 2001 and investigated into. The Investigating Officer visited the scene of occurrence and observed the scene in the presence of mediators and also prepared a rough sketch of the scene of occurrence. He held inquest on the dead body of the deceased in the presence of mediators and seized the material objects from the dead body of the deceased and sent to Forensic Science Laboratory. Thereafter the dead body was subjected to post mortem examination. The Doctor who conducted autopsy on the dead body of the deceased opined that the deceased died as a result of head injury. Thereafter the accused was arrested and sent to remand.

3.      The charges leveled against the accused are under Section 148 IPC against A1 to A5; Section 302 IPC against A1 and A2; Section 302 r/w.149 IPC against A3 to A5; Section 324 IPC against A1, A2 and A5 and Section 324 r/w.149 IPC against A3 and A4. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried.
4.      To substantiate the charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-14 besides case properties M.Os.1 to 5.

5.      After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses.  They denied the same and reported no evidence either oral or documentary.

6.      The trial Court after considering the evidence on record acquitted the accused for the charges leveled against them. Challenging the same, the present appeal is preferred by the State.

7.      The points for determination are:
Whether the prosecution proved its case beyond all reasonable doubt with regard to the charges leveled against the accused and whether the judgment of the trial Court is correct, legal and proper or not?

8.      POINTS:-   There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though Appellate Court has got full power to reappreciate the evidence available on record, still it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt and that presumption of innocence is further strengthened by an order of acquittal.  Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal.  In view of the decision reported inSIDHARTHA VASHISHT @ MANU SHARMA VS. STATE (NCT OF DELHI)[1], the following principles have to be kept in mind by the Appellate Court while dealing with the appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court’s conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.


Keeping the above principles in mind, it is to be seen whether there are any compelling or substantial reasons to interfere with the judgment of the trial Court. 

9.      PW9 the inquest mediator, who was present at the time of inquest on the dead body of the deceased on 26-06-2001. The inquest mediators opined that the deceased died as a result of injuries sustained by her. Ex.P7 is the inquest panchanama. PW5 is the Doctor. He conducted autopsy on the dead body of the deceased and found following injuries:

1.     A contusion over the right eye and below the eye 3” x 2” black colour haemorrage in eye ball and
2.    Lacerated injury over the chin 2” x 1” clotted blood present, no external fracture of the skull, base of skull bone fractured, haematoma base of brain and fracture of right side of mandible and maxilla.

Ex.P2 is the post mortem examination report. He opined that the deceased died as a result of head injury. Therefore, from the evidence of PWs.5 and 9 and the recitals in Exs.P2 and P7, homicidal nature of the death of the deceased is established.


10.    PWs.1 to 3 and PWs.6 and 7 were examined to speak about the specific overt acts of the accused in causing injuries to the deceased. According to PW1, a quarrel ensured between A2 and his mother (deceased) on 25-06-2001 at 7.00 a.m. near water tap in respect of use of passage and that the elders have pacified the same; that on the next day at about 8.00 a.m. all the accused came to the house of the deceased and A2 beat the deceased with a stone underneath her right eye and A1 fisted the deceased on the chest, and as the deceased sustained head injury she fell down. A5 beat him with a stick on his left wrist and A5 also beat the deceased on her right hand; that thereafter they immediately shifted the deceased in an auto to the Government Hospital, Hindupur and the Doctor declared her as brought dead.

11.    PWs.2 to 4 who are closely related to the deceased, have testified almost similar to the statement given by PW1. Since they are closely related to the deceased, their evidence has to be evaluated so as to determine whether they were really present at the time of occurrence or not, or whether there is any ring of truth in their evidence so as to accept the same to infer that the accused are the assailants of the deceased. The incident had taken place in the early morning. So it is quite possible for them to be present at the house. But mere presence at the house would not be sufficient to draw inference that they had witnessed the incident. If their evidence is found to be acceptable and their evidence is in corroboration with the medical evidence, then their evidence can be accepted.

12.    In so far as causing injuries to the deceased is concerned, PW1 stated that A2 beat his mother on the right hand, A1 fisted her on the chest and as a result she fell down, and while falling down she sustained head injury on the backside. 
Similarly, PW2 stated that A1 beat her mother with a stone, A2 caught hold of her and A1 pushed her. 
Whereas PW3 stated that A1 beat her mother with a stone on the chest and A2 also beat on the same spot with a stone. 
PW4 is not an eye-witness to the incident. When he returned from the mills several persons gathered there then he came to know about the incident. Though it is alleged that all the accused were armed with sticks, none of them used the sticks in causing injuries to the deceased.

13.    The specific case of PWs.1 to 3 is that A1 beat the deceased with a stone on the chest and A2 fisted her. 
The evidence of PWs.1 to 3 is quite contradictory to the evidence of the Doctor because he did not find any external or internal injuries on the chest of the deceased. 
He found an injury on the right eye and 
another injury on the chin. 
But he found that base of the skull has been fractured. 
The Doctor has categorically stated that the fracture injury on the skull is an independent injury and it cannot be caused with any corresponding external injuries No.1 and 2. 
He has also stated that if a person falls on the ground facing upwards, fracture of the skull cannot be caused. 
The evidence of PWs.1 to 3 is that after A1 causing injury to the deceased, she fell down facing upwards on the ground. 
So, it means she would have sustained injury on the backside or on the occipital region of the head. 
No such injury was found on the occipital region. 
Therefore, PWs.1 to 3 must not have witnessed actual assault on the deceased and they are not the witnesses of truth. 
In view of the fact that the medical evidence completely rules out the possibility of taking place of the incident in the manner as testified by the prosecution witnesses, it is not desirable to place any reliance on the evidence of these witnesses in view of a decision reported in JAIKARAN AND OTHERS V. STATE OF U.P.[2], wherein it is held in paragraph No.12:
“Great emphasis was led on the approximate time of injury. That in no way affects the credibility of PW2’s evidence. Though the evidence of PW1 does not specifically indicate the injury on PW2, that is but natural. Before a young person two murders were committed and it is quite natural to create a sense of shock and minor variations in his evidence do not affect his testimony which is otherwise credible. Unless the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. (See Solanki Chimanbhai Ukabhai v. State of Gujrat reported in (1983) 2 SCC 174). To similar effect is the decision in State of U.P. v. Krishna Gopal reported in (1988) 4 SCC 302.”

So in view of the above decision no reliance can be placed on the evidence of PWs.1 to 3.

14.    The other evidence remains on record is the evidence of PW6 and 7. The evidence of PW6 would also go to show that A1 beat the deceased on the chest with a stone, and as a result she fell down and became unconscious. 
Herself and neighbouring couple took the deceased in an auto to the hospital. Similarly, PW7 deposed in the same lines. Further when PW7 and her husband took the deceased to the Government Hospital in auto-rickshaw, the Doctor declared the deceased as brought dead. 
Then the Doctor asked PW7 and others to go to the house of the deceased and inform to her relatives. 
Therefore, this evidence rules out the presence of PWs.1 to 3 at the time of the incident. 
The evidence of PWs.6 and 7 has been disbelieved by trial Court as their evidence is quite contrary to the medical evidence.

15.    Therefore, after elaborate consideration of the evidence on record the trial Court has rightly acquitted the accused and that the order of acquittal needs no interference as there are no compelling or substantial reasons and the appeal is devoid of merits.

16.    Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 15-09-2005, in Sessions Case No.187 of 2002 on the file of Additional Sessions Judge, Hindupur.

17.    Miscellaneous petitions, if any, pending in this appeal shall stand closed.

                     ______________________

JUSTICE K.C. BHANU


____________­­­_______________________

JUSTICE CHALLA KODANDA RAM

June 25, 2013
PN

 

 

HON'BLE SRI JUSTICE K.C. BHANU

AND
HON’BLE SRI JUSTICE CHALLA KODANDA RAM

































CRIMINAL APPEAL (SR) No.624 OF 2013




June 25, 2013

PN


[1] 2010 (6) SCC 1
[2] (2003) 12 SCC 655

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