Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION/

CRIMINAL APPEAL NO.1116 OF 2011

Chinnam Kameswara Rao & Ors. …Appellants

Versus

State of A.P. Rep. by Home Secretary …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This appeal under Section 2(a) of the Supreme Court

(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 assails a

judgment and order dated 8

th

February, 2011 passed by the High

Court of Andhra Pradesh at Hyderabad, whereby the High Court has

partly allowed the acquittal appeal filed by the State and while

reversing the judgment and order passed by the trial Court convicted

the appellants for offences punishable under Section 302 read with

Section 34 of the IPC and sentenced them to undergo imprisonment

for life besides levying a fine of Rs.1,000/- each. In default of

payment of fine the appellants have been sentenced to undergo

simple imprisonment for a period of one month each. The appellants

have been further convicted for an offence punishable under Section

324 read with Section 34 of the IPC and sentenced to undergo simple

Page 2 imprisonment for three months each with the direction that the

sentences shall run concurrently.

2. Briefly stated the prosecution case is that on 27

th

April, 2003,

at around 7.00 p.m., the appellants along with one Papisetti Praveen

who was arrayed as accused no.4 stopped the deceased-Bezawada

Srinivasa Rao and PW.1-Alapati Seshadri while the latter were on

their way home at Bethavolu Park Centre - the place of occurrence.

An altercation between the accused persons on the one hand and the

deceased and PW-1 on the other had according to the prosecution

taken place on the previous day i.e. on 26

th

April, 2003, while the

deceased and PW.1 were bringing some palmyrah nuts from the

fields. PW-3-Sonti Koteswara Rao, a shopkeeper who runs a pan shop

in the vicinity, claimed to be a witness to that incident and had

intervened and pacified the parties which passed off without any

physical harm to either side except that according to the prosecution

appellant no.1-Chinnam Kameswara Rao had threatened the

deceased with dire consequences. With the above incident in the

background on 27

th

April, 2003, the accused persons allegedly

confronted the deceased and PW-1-Alapati Seshadri, armed with

stout casuarina sticks except accused no.4 who was unarmed. An

altercation followed between the two sides as a sequel to the incident

of the previous day in the course whereof appellant no.1-Chinnam

Page 3 Kameswara Rao is alleged to have struck a blow on the head of the

deceased. When PW-1-Alapati Seshadri intervened, the remaining

two appellants came down upon him and gave stick blows on his head

also. The injured, as also Alapati Seshadri-PW-1 fell to the ground,

whereupon A-4 is alleged to have kicked and given fist blows to the

deceased while A-1 to A-3 continued to indiscriminately hit both of

them with their sticks which caused bleeding injuries to both the

injured. Taking both of them as dead, the appellants are alleged to

have run away from the spot towards the house of appellant no.1.

Sonti Srinivasa Rao S/o Nageswara Rao (PW-2), Sonti Koteswara Rao

(PW-3), Sonti Srinivasa Rao, S/o Veeraiah (PW-4) and M.V. Gopala

Krishna Murthy (PW-6) are alleged to have witnessed the incident.

PW-2-Sonti Srinivasa Rao with the help of one P. Vasudeva Rao

shifted both the injured to the Government Hospital, Gudivada for

treatment who informed the Gudivada Town I Police Station about

the arrival of the injured in the hospital whereupon PW-9-B. Jaya

Raju, ASI, reached the hospital and recorded the statement of the

deceased, marked Exhibit P-6. A case under Section 324 read with

34 IPC was on the basis of that statement registered and the injured

shifted to the University General Hospital, Vijaywada for further

treatment. Around 2.50 a.m. on 28

th

April, 2003, the deceased

succumbed to his injuries in the hospital at Vijayawada whereupon

Page 4 the Investigating Officer altered the offence from Section 324 read

with Section 34 IPC to Section 302 read with Section 34 IPC.

3. After completion of investigation that included the arrest of

the accused persons, post mortem of the dead body of the deceased,

seizure of the weapons of offence, the police filed a charge sheet

against the appellants for offences punishable under Sections 302

and 307 IPC while A-4 was charged under Sections 302 and 307 read

with Section 34 IPC.

4. At the trial the prosecution examined as many as 13 witnesses

including PWs.2, 3, 4 and 6, said to be eye witnesses to the incident.

The accused did not lead any evidence in their defence. The trial

Court all the same came to the conclusion that the prosecution had

not been able to establish the charge framed against the accused

persons and accordingly acquitted them.

5. Aggrieved by the judgment and order of the acquittal recorded

by the trial Court the State filed Criminal Appeal No.1055 of 2007

before the High Court of Andhra Pradesh at Hyderabad which appeal

was allowed in part reversing the acquittal of the appellants and

convicting them for offences punishable under Section 302 read with

Section 34 IPC and Section 324 read with Section 34 of the IPC. The

acquittal of accused No.4 was, however, affirmed by the High Court.

The appellants were consequently sentenced to undergo

Page 5 imprisonment for life apart from imprisonment for a period of three

months under Section 324 IPC as already noticed above. The

sentences were directed to run concurrently. The present appeal

assails the correctness of the above judgment and order.

6. Appearing for the appellants Mr. M.S. Ganesh, learned senior

counsel, made a three-fold submission. Firstly, he contended that the

High Court was in error in embarking upon a fresh appraisal of the

evidence adduced by the prosecution at the trial and interfering with

the order of acquittal passed by the trial Court just because in the

opinion of the High Court a second view was equally reasonable in the

facts and circumstances of the case. He urged that acquittal of the

accused persons reinforced their innocence and except in compelling

circumstances where the acquittal is seen to have resulted in

miscarriage of justice or where appreciation of evidence is perverse or

manifestly unsatisfactory, the High Court should not have converted

the acquittal into a conviction.

7. Secondly, he contended that the High Court could not have

convicted the appellants for offences punishable under Sections 302

and 307 both read with Section 34 IPC when the charges framed

against the appellants were only for offences punishable under

Sections 302 and 307 of the IPC. It was also contended that accused

No.4, since acquitted by the Courts below, alone was charged with

Page 6 Section 302 read with Section 34 IPC. The High Court was not,

therefore, justified in convicting the appellants for the offence of

murder or attempt to murder with the help of Section 34 of the Code.

The absence of a charge under Section 34 had, according to the

learned counsel, resulted in prejudice and miscarriage of justice to

the appellants.

8. Thirdly, it was contended that on a true and proper

appreciation of the evidence adduced at the trial there was no real

basis for the High Court to hold that the appellants had the common

intention to commit the murder of the deceased. In the absence of

any evidence to support the allegation that the appellants had a

common intention to kill the deceased, their conviction for the offence

of murder punishable under Section 302 IPC was not justified. At any

rate, the evidence did not support the charge of murder which could

be appropriately converted to culpable homicide not amounting to

murder punishable under Section 304 Part I or II of the IPC.

9. We propose to deal with the submissions ad seriatim.

10. The powers of Appellate Court are stipulated in Section 386 of

the Code of Criminal Procedure, 1973. A bare reading of the said

provision leaves no manner of doubt that in an appeal against an

order of acquittal the Appellate Court may reverse such order and

direct that further inquiry be made or that the accused be re-tried, as

Page 7 the case may be or impose a sentence upon him according to law.

Similarly in the case of appeal from a conviction the Appellate Court

has the power to reverse the findings recorded by the trial Court and

discharge the accused or pass an order for his re-trial etc.

11. The plenitude of the power available to the Appellate Court

notwithstanding recent pronouncements of this Court has evolved a

rule of prudence according to which the Appellate Court must bear in

mind that in the case of acquittal the innocence of the accused is

doubly assured by his acquittal. Consequently, if two reasonable

conclusions are possible on the basis of the evidence on record the

Appellate Court should not disturb the findings of the acquittal

recorded in favour of the accused. A long line of decisions rendered

by this Court have recognised that while deciding acquittal appeal the

power of the Appellate Court is in no way circumscribed by any

limitation and that power is exercisable by the Appellate Court to

comprehensively review the entire evidence. The decisions of this

Court in Dhanna etc. v. State of Madhya Pradesh (1996) 10

SCC 79 and Kallu @ Masih & Ors. v. State of Madhya Pradesh

(2006) 10 SCC 313 aptly summarise the legal position. A recent

decision of this Court in Murugesan & Ors. v. State 2012 (10)

SCALE 378 is a timely reminder of the principles that were succinctly

enunciated in an earlier decision of this Court in Chandrappa & Ors.

Page 8 v. State of Karnataka (2007) 4 SCC 415 , in the following words:

“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:

(1) An appellate court has full power to review, re-appreciate

and reconsider the evidence upon which the order of acquittal

is founded.

(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.

(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 emphasise 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.

(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 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.

(5) If two reasonable conclusions are possible on the basis of

the evidence on record, the appellate court should not disturb

the finding of acquittal recorded by the trial court.”

(emphasis supplied)

12. What, therefore, needs to be examined in the light of the

settled legal position is whether the view taken by the trial Court

acquitting the accused was a reasonably possible view. If the answer

is in the negative nothing prevents the Appellate Court from

Page 9 reversing the view taken by the trial Court and holding the accused

guilty. On the contrary, if the view is not a reasonably possible view

the Appellate Court is duty bound to interfere and prevent

miscarriage of justice by suitably passing the order by punishing the

offender. We have in that view no hesitation in rejecting the

contention that just because the trial Court had recorded an acquittal

in favour of the appellants the Appellate Court had any limitation on

its power to reverse such an acquittal. Whether or not the view was

reasonably possible will be seen by us a little later when we take up

the merits of the contention urged by the appellant regarding

involvement of the accused persons in the commission of the crime.

13. That brings us to the question whether absence of a charge

under Section 34 of the IPC would by itself operate as an impediment

in the Appellate Court recording a conviction with the help of that

provision. The decision of this Court provide a complete answer to

that contention to which we may immediately refer. In Krishna

Govind Patil v. State of Maharashtra AIR 1963 SC 1413 the trial

Court had acquitted all the accused persons while the High Court

convicted them under Section 302 read with Section 34 IPC. This

Court held that the High Court could convict the accused under

Section 34 even if the named accused were acquitted provided the

High Court held that there were other unnamed accused persons who

Page 10 were involved in the commission of the offence. The following

passage from the said decision is, in this regard, apposite:

“It is well settled that common intention within the meaning

of the section implied a pre-arranged plan and the criminal act

was done pursuant to the pre-arranged plan. The said plan

may also develop on the spot during the course of the

commission of the offence; but the crucial circumstance is

that the said plan must precede the act constituting the

offence. If that be so, before a court can convict a person

under s. 302, read with s. 34, of the Indian Penal Code, it

should come to a definite conclusion that the said person had

a prior concert with one or more other persons, named or

unnamed, for committing the said offence. A few illustrations

will bring out the impact of s. 34 on different situations.

(1) A, B, C and D are charged under s. 302, read with s. 34,

of the Indian Penal Code, for committing the murder of E. The

evidence is directed to establish that the said four persons

have taken part in the murder.

(2) A, B, C and D and unnamed others are charged under the

said sections. But evidence is adduced to prove that the said

persons, along with others, named or unnamed, participated

jointly in the commission of that offence.

(3) A, B, C and D are charged under the said sections. But the

evidence is directed to prove that A, B, C and D, along with 3

others, have jointly committed the offence.

xxx xxx xxx

But what is the position if the Court acquits 3 of the 4 accused

either because it rejects the prosecution evidence or because

it gives the benefit of doubt to the said accused? Can it hold,

in the absence of a charge as well as evidence, that though

the three accused are acquitted, some other unidentified

persons acted conjointly along with one of the named

persons? If the Court could do so, it would be making out a

new case for the prosecution: it would be deciding contrary to

the evidence adduced in the case. A Court cannot obviously

make out a case for the prosecution which is not disclosed

either in the charge or in regard to which there is no basis in

the evidence. There must be some foundation in the evidence

that persons other than those named have taken part in the

commission of the offence and if there is such a basis the case

will be covered by the third illustration.”

(underlined for emphasis)

14. The legal position was reviewed by a two-Judge Bench of this

Page 11 Court in Darbara Singh v. State of Punjab 2012 (8) SCALE 649 .

In that case also charges were framed against two of the accused

persons under Section 302 IPC whereas against the third accused the

charge framed was under Section 302 read with Section 34 IPC. The

trial Court had acquitted the third accused but convicted the first two

accused much in the same manner as is the position in the present

case. The contention before this Court was that in the absence of a

charge under Section 34 no conviction could be recorded against the

appellants under Section 302 especially when the injury inflicted by

one of the accused persons was not held to be sufficient in the

ordinary course of nature to cause death. Repelling the contention

this Court observed:

“12. It has further been submitted on behalf of the Appellant

that, as the appellant was never charged under

Section 302 r/w Section 34 Indian Penal Code, unless it is

established that the injury caused by the Appellant on the

head of the deceased, was sufficient to cause death, the

Appellant ought not to have been convicted under

Section 302 Indian Penal Code simplicitor. The submission so

advanced is not worth consideration for the simple reason that

the Learned Counsel for the Appellant has been unable to

show what prejudice, if any, has been caused to the

Appellant, even if such charge has not been framed against

him. He was always fully aware of all the facts and he had, in

fact, gone alongwith Kashmir Singh and Hira Singh with an

intention to kill the deceased. Both of them have undoubtedly

inflicted injuries on the deceased Mukhtiar Singh. The

Appellant has further been found guilty of causing grievous

injury on the head of the deceased being a vital part of the

body. Therefore, in the light of the facts and circumstances of

the said case, the submission so advanced does not merit

acceptance.

xxx xxx xxx

14. The defect in framing of the charges must be so serious

Page 12 that it cannot be covered under Sections 464/465 Code of

Criminal Procedure., which provide that, an order of sentence

or conviction shall not be deemed to be invalid only on the

ground that no charge was framed, or that there was some

irregularity or omission or misjoinder of charges, unless the

court comes to the conclusion that there was also, as a

consequence, a failure of justice. In determining whether

any error, omission or irregularity in framing the relevant

charges, has led to a failure of justice, the court must have

regard to whether an objection could have been raised at an

earlier stage, during the proceedings or not. While judging the

question of prejudice or guilt, the court must bear in mind

that every accused has a right to a fair trial, where he is

aware of what he is being tried for and where the facts sought

to be established against him, are explained to him fairly and

clearly, and further, where he is given a full and fair chance to

defend himself against the said charge(s).

15. The 'failure of justice' is an extremely pliable or facile

expression, which can be made to fit into any situation in any

case. The court must endeavour to find the truth. There would

be 'failure of justice'; not only by unjust conviction, but also

by acquittal of the guilty, as a result of unjust failure to

produce requisite evidence. of course, the rights of the

accused have to be kept in mind and also safeguarded, but

they should not be over emphasized to the extent of

forgetting that the victims also have rights. It has to be shown

that the accused has suffered some disability or detriment in

respect of the protections available to him under Indian

Criminal Jurisprudence. 'Prejudice', is incapable of being

interpreted in its generic sense and applied to criminal

jurisprudence. The plea of prejudice has to be in relation to

investigation or trial, and not with respect to matters falling

outside their scope. Once the accused is able to show that

there has been serious prejudice caused to him, with respect

to either of these aspects, and that the same has defeated the

rights available to him under jurisprudence, then the accused

can seek benefit under the orders of the Court.”

15. In Gurpreet Singh v. State of Punjab (2005) 12 SCC

615, this Court held that no prejudice could be claimed by the

accused merely because charge was framed under Section 302 IPC

simpliciter and not with the help of Section 34 IPC. The Court found

that the eye witnesses had been cross-examined at length from all

possible angles and from suggestions that were put to them to the

Page 13 eye witnesses, the Court was fully satisfied that there was no manner

of prejudice caused. What, therefore, needs to be examined is

whether any prejudice was caused to the accused persons on account

of absence of charge under Section 34 of the IPC. Mere omission of

Section 34 from the charge sheet does not ipso facto or ipso jure lead

to any inference or presumption of prejudice having been caused to

the accused in cases where the conviction is recorded with the help of

that provision. It is only if the accused persons plead and

satisfactorily demonstrate that prejudice had indeed resulted from

the omission of a charge under Section 34 of the IPC that any such

omission may assume importance. We do not see any such prejudice

having been caused in the present case. In fairness to Mr. Ganesh

we must mention that although he had strenuously argued the legal

proposition dealt with by us above when it came to demonstrating a

prejudice on account of absence of charge under Section 34 he was

unable to do so. The absence of charge under Section 34 of the IPC

did not, therefore, affect the legality of the conviction recorded by the

High Court.

16. That brings us to third and the only other submission urged by

Mr. Ganesh to the effect that there was no evidence to show common

intention on the part of the appellants to commit the murder of the

deceased. We regret our inability to accept that submission. The

Page 14 evidence on record sufficiently proves that the appellants had

confronted the deceased and PW-1 Alapati Seshadri on the previous

date which was defused with the interference of PW-3 Sonti

Koteswara Rao, a shopkeeper in the vicinity who was, however,

witness to the threat extended by the appellants to the deceased of

dire consequences. There is evidence to show that on the date of

occurrence the appellants were lying in wait near the Reading Room

for the deceased. No sooner they saw him approaching the place

where they were waiting that they went behind the Reading Room to

fetch the stout sticks that they appear to have hidden from public

view only to mount a surprise attack on the deceased. This implies

that the appellants had made preparations for the commission of the

offence and the incident was premeditated as a sequel to the

confrontation that the two parties had on the previous date. The last

and by no means the least important circumstance is the nature of

the injuries inflicted upon the deceased on the vital part of the body

resulting in fracture of the skull, sufficient in the ordinary course to

cause death. The evidence on record suggests that all the three

accused persons belaboured the deceased and continued their assault

and aggression even when the deceased had fallen to the ground on

account of the head injuries sustained by him. The appellants fled

from the place of occurrence only when they felt that the deceased

Page 15 was dead. All these circumstances leave no manner of doubt that the

appellants shared the common intention to kill the deceased and that

they had acted under a premeditated plan. It is well settled that the

common intention may develop during the course of the commission

of the offence but the fact that the incident in instant case had a

history behind it and that the appellants had not only threatened the

deceased previously but were lying in wait for his arrival at the place

of occurrence clearly showed that the commission of the offence was

preconcerted.

17. The High Court, therefore, committed no error in holding the

appellants guilty especially when the statement of PW-1 Alapati

Seshadri who was also injured in the incident was found to be

credible. The depositions of PW-1 Alapati Seshadri, PW-2 Sonti

Srinivasa Rao S/o Nageswara Rao, PW-3 Sonti Koteswara Rao, PW-4

Sonti Srinivasa Rao S/o Veeraiah, PW-6 M.V. Gopala Krishna Murthy

all supported the prosecution version that the deceased was

assaulted by the appellants resulting in grievous injuries to him that

culminated in his death. The trial Court had obviously fallen in error in

rejecting the testimony of these witnesses on minor contradictions

which was not sufficient to shatter their credibility. The acquittal

recorded by the trial Court was not thus a reasonably possible view in

the matter which the High Court was entitled to reverse while hearing

Page 16 the appeal.

18. In the result this appeal fails and is hereby dismissed.

……………………………………….……….…..…J.

(T.S. Thakur)

………………………… ..…………………..…..…J.

(Gyan Sudha Misra)

New Delhi

January 10, 2013