Page 1 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1424 OF 2003

Nallabothu Ramulu @

Seetharamaiah & Ors. …

Appellants

Vs.

State of Andhra Pradesh …

Respondents

WITH

CRIMINAL APPEAL NO.15 OF 2004

Chalamala Veeraiah & Anr. …

Appellants

Vs.

State of Andhra Pradesh …

Respondents

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1.Both these appeals are directed against judgment and

order dated 24/07/2003 passed by the High Court of Andhra

Page 2 Pradesh in Criminal Appeal No.921 of 2000 and, hence, they

are being disposed of by this common judgment.

2.The appellants were charged and tried by the IInd

Additional Sessions Judge, Guntur in Sessions Case No.967 of

1994 inter alia for offences under Sections 147, 148, 324,

307, 302 read with Section 149 of the IPC. Learned Sessions

Judge by judgment dated 11/2/2000 acquitted all the

accused. The State of Andhra Pradesh carried an appeal

from the said order to the High Court of Andhra Pradesh. By

the impugned judgment and order dated 24/07/2003, the

High Court set aside the order of acquittal and convicted the

appellants in Criminal Appeal No.1424 of 2003 viz. A1-

Nallabothu, A3-Rayidi Brahmaiah, A4-Rayidi Purnaiah, A11-

Nallabothu Sreenivasa Rao, A14-Rayidi Kotiah, A15-Rayidi

Veera Mallaiah, A16-Mupalla Ramaiah, A21-Rayidi Lingiah,

A23-Rayidi Sreenivasarao, A24-Duggineni Peraiah, A25-

Mannem Hanumantha Rao, A27-Rayidi Ramarao and A29-

Rayidi Venkateswarlu, under Section 302 of the Indian Penal

Code (“the IPC”) and sentenced each one of them to

2

Page 3 undergo rigorous imprisonment for life. In addition, Accused

No.3 and Accused No.4 were convicted under Section 324 of

the IPC and sentenced to undergo rigorous imprisonment for

three years each. Accused No.25 was convicted under

Section 324 of the IPC and also under Section 324 read with

Section 149 of the IPC and sentenced to undergo rigorous

imprisonment for one year on each count. The appellants in

Criminal Appeal No.15 of 2004 viz. A38-Chalamala Veeraiah

and A39-Chalamala Subbarao were, however, convicted

under Section 324 read with Section 149 of the IPC and

sentenced to suffer rigorous imprisonment for one year

each. The appellants in both the appeals were also

convicted under Section 148 of the IPC and sentenced to

undergo rigorous imprisonment for one year each. The

substantive sentences were ordered to run concurrently.

Being aggrieved by their conviction and sentence, the

appellants have approached this Court. For the sake of

convenience, we shall refer to the accused and the

prosecution witnesses as per the numbers assigned to them

by the trial court.

3

Page 4 3.Tondepi village is a faction-ridden village within the

limits of Muppala Police Station. There were two groups in

the village, against whom, cases and counter-cases were

pending. There were land disputes between A28-Rayidi

Anjaiah and his father Rayidi Venkatappaiah. One group was

supporting A28-Rayidi Anjaiah and the other group was

supporting his father.

4.On 16/3/1993, at about 1.30 p.m., some of the accused

abducted PW-19 V. Seshagiri Rao and tried to kill him.

However, due to the timely intervention of the police, he was

saved and admitted in the Government Hospital,

Settenapalli. In this connection, the police registered a case

being Crime No.5 of 1993 for offences punishable under

Sections 147, 148, 323, 324, 364 and 307 read with Section

149 of the IPC against some of the accused in this case. As

they were unsuccessful in their attempt to kill PW-19 V.

Seshagiri Rao, they armed with iron rods, axes, spears,

sticks and bombs waylaid in Dammalapadu Donka and

4

Page 5 formed themselves into an unlawful assembly with a

common object of killing the persons belonging to

Nallabothu Venkaiah group. After admitting PW-19 V.

Seshagiri Rao, in the Hospital at Sattenapally, Challa

Singaiah and Rachankonda Chanchiah and PW-1 to PW-10

and some others were returning to their village in a tractor in

the night intervening 16/3/1993 and 17/3/1993. The

accused attacked Singaiah and Chanchiah and PWs-1 to 16

when they reached Dammalapadu Donka. Bombs were

hurled. Singaiah succumbed to the injuries at the spot. PW-

1 to PW-10 and Chanchiah, who sustained injuries, were

admitted in the Government Hospital, Sattenapally.

Chanchiah succumbed to the injuries on 17/3/1993 while he

was undergoing treatment. The hospital authorities sent an

intimation to the Additional Munsiff Magistrate, Sattenapally.

Pursuant to the said information, the learned Magistrate

went to the hospital and recorded the statement of PW-1 R.

Venkata Rao, on the same day, in the presence of the Duty

Medical Officer. On receipt of the statement of PW-1, the

Sub Inspector of Police, Sattenapally, registered a case being

5

Page 6 Crime No.43 of 1993 for offences punishable under Sections

147, 148, 324, 307 and 302 read with Section 149 of the IPC

and Sections 3 and 5 of the Explosive Substances Act and

transferred the case to Muppala Police Station, within whose

jurisdiction the incident occurred. On receipt of the copy of

the FIR, Muppala Police re-registered it as Crime No.6 of

1993 of their police station. PW-29, the Circle Inspector,

Muppala, conducted the investigation. After completion of

investigation, the accused came to be charged as aforesaid.

At the trial, the prosecution examined as many as 31

witnesses. The accused denied the prosecution case. As

earlier stated, the trial court rejected the prosecution case,

held that the prosecution has not proved its case beyond

reasonable doubt and acquitted the accused. The High

Court reversed the order of acquittal and convicted the

accused as aforesaid. Hence, these appeals.

5. We have heard learned senior counsel appearing for

the appellants. Counsel submitted that the High Court erred

in disturbing the acquittal order passed by the trial court.

6

Page 7 Counsel submitted that the view taken by the trial court was

a reasonably possible view. It was not a perverse view. The

High Court ought not to have set aside the acquittal order

just because it felt that some other view was also possible.

Counsel submitted that the High Court has not indicated in

the impugned judgment the reasons why it felt that the trial

court’s view was not sustainable. Counsel submitted that

the trial court has meticulously considered the evidence of

every witness, marshaled the facts correctly and held that

the prosecution has not proved its case beyond reasonable

doubt. It is, therefore, necessary to set aside the impugned

order and restore the trial court’s order.

6.Mr. A.T.M. Rangaramanujam, learned senior counsel for

the State of Andhra Pradesh, on the other hand, supported

the impugned judgment. He submitted that the trial court

gave undue importance to trivial matters. It wrongly

disbelieved the evidence of injured eye-witnesses on

account of minor discrepancies. The trial court’s judgment

rested on conjectures and surmises. It was a perverse

7

Page 8 judgment and, therefore, the High Court rightly set it aside.

No interference is, therefore, necessary with the impugned

order. Counsel urged that the appeals be dismissed.

7.The High Court reversed the order of acquittal passed

by the trial court. The question is whether the High Court

justified in doing that. To answer this question, it would be

necessary to refresh our memory and have a look at the

principles laid down by this Court for guidance of the Court

dealing with an appeal against an order of acquittal. In

Chandrappa & Ors. v. State of Karnataka

1

, this Court

laid down the principles as under:

“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,

reappreciate 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

1

(2007) 4 SCC 415

8

Page 9 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.”

9

Page 10 8.In Dwarka Dass & Ors. v. State of Haryana

2

, this

Court observed as under:

“2. While there cannot be any denial of the

factum that the power and authority to appraise

the evidence in an appeal, either against acquittal

or conviction stands out to be very comprehensive

and wide, but if two views are reasonably possible,

on the state of evidence: one supporting the

acquittal and the other indicating conviction, then

and in that event, the High Court would not be

justified in interfering with an order of acquittal,

merely because it feels that it, sitting as a trial

court, would have taken the other view. While

reappreciating the evidence, the rule of prudence

requires that the High Court should give proper

weight and consideration to the views of the trial

Judge. But if the judgment of the Sessions Judge

was absolutely perverse, legally erroneous and

based on a wrong appreciation of the evidence,

then it would be just and proper for the High Court

to reverse the judgment of acquittal, recorded by

the Sessions Judge, as otherwise, there would be

gross miscarriage of justice.”

9.In Bihari Nath Goswami v. Shiv Kumar Singh &

Ors.

3

, this Court observed as under:

“8. There is no embargo on the appellate court

reviewing the evidence upon which an order of

2

(2003) 1 SCC 204

3

(2004) 9 SCC 186

10

Page 11 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 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.”

Keeping the above principles in mind, we shall

approach the present case.

10.We shall examine the trial court’s view on each salient

aspect of the case and see whether it was perverse,

warranting High Court’s interference. It must be borne in

mind that the incident took place at dead of night and in an

area which was away from town. Admittedly, there were two

factions in the village and the relations between the two

factions were strained. In an earlier incident, PW-19 was

attacked by the opposite group. Hence, the possibility of

11

Page 12 witnesses trying to falsely implicate persons belonging to the

rival group cannot be ruled out. Also important is the fact

that according to the prosecution, 50 persons were involved

in the brutal attack. In a case of this nature, availability of

light for identification of the accused would assume great

importance. The trial court meticulously scanned the

evidence and opined that there was no sufficient light at the

scene of offence to enable the witnesses to identify the

accused. On a reading of evidence of witnesses and noticing

some discrepancies, the trial court arrived at a finding that

the story that the assault was witnessed by the witnesses in

torch light or tractor light is not acceptable. While coming to

this conclusion, the trial court further noted that in the FIR,

in the observation report and in the inquest report, there is

no mention of availability of light.

11.The High Court overturned the findings of the trial court

on availability of light on the ground inter alia that witnesses

were deposing 5½ years after the incident and there are

bound to be some discrepancies in their evidence. The High

12

Page 13 Court also observed that at night, vehicles are not driven

without lights. The High Court noted that the prosecution

witnesses have stated that they knew the accused as they

belonged to the opposite group and, therefore, it was

possible for them to identify the accused. The High Court

also noted that PW-1 was injured so he might not have

mentioned about availability of light in Ex-P/1. Moreover, the

witnesses have not identified all the accused. This gives

credibility to their evidence. The High Court also noted that

four torches were found at the scene of offence and, hence,

there was sufficient light at the scene of offence. We feel

that the High Court was not right in setting aside the trial

court’s reasonable view on availability of light. The fact that

neither in the FIR nor in the observation report nor in the

inquest report there is mention of availability of light, is

important. By itself each of these circumstances may not be

significant. But, taken with other facts, they assume

importance.

13

Page 14 12.The trial court rightly observed that assuming the

prosecution witnesses had torches in their hands, they would

not switch them on for fear of being spotted and subjected

to attack. Besides, according to the prosecution, there were

50 accused. Some of them hurled bombs at the witnesses.

Therefore, the attack must have resulted in smoke and dust

rising in the air. In such a situation, it would not be possible

for the prosecution witnesses to identify the assailants out of

50 persons, who, according to the prosecution, launched the

attack. In any case, it would not be possible for the

witnesses to note what role each accused played. The overt

acts attributed by the witnesses to the accused must be,

therefore, taken with a pinch of salt. All the accused were

not known to the witnesses, because some witnesses stated

that they would be able to identify them if they are shown to

them. But even assuming they knew the accused and there

was some light at the scene of offence, it does not appear

that it was sufficient to enable the witnesses to identify the

accused and note overt act of each of them. Possibility of

wrong identification cannot be ruled out. The view taken by

14

Page 15 the trial court on this aspect is reasonably possible view.

The High Court was wrong in disturbing it in an appeal

against acquittal.

13.According to the prosecution, after admitting PW-19 at

Sattenapally Government Hospital, PW-1 to PW-16, the two

deceased and others were returning to Tondepi village. At

that time, at Dammalapadu Donka, the incident occurred.

PW-1 is an important witness because he was injured in the

incident. His dying declaration was recorded, which is at Ex-

P/1. On the basis of that dying declaration, Ex-P/26, the FIR

was registered at P.S. Sattenapally. PW-1 stated that the

police came to the spot immediately and within 15 minutes

of their arrival, they were shifted to Sattenapally

Government Hospital. He stated that PW-28 S.I., P.S.

Muppala came there. He also stated that there was a police

camp at Gram Panchayat Office of Tondepi village. PW-28

S.I., P.S. Muppala confirmed that there was police camp at

the Gram Panchayat Office. He was posted on bandobast

duty on account of the incident in which PW-19 was injured.

15

Page 16 He had recorded the statements of witnesses in the earlier

case from 5.00 p.m. to 8.00 p.m. on 16/3/1993. Evidence of

witnesses shows that they had informed the police about the

incident in question. PW-2 an injured eye-witness stated

that he informed the police about the incident, but his

statement was not recorded. PW-3 the Head Constable, who

had accompanied PW-19 to the hospital on 16/3/1993 stated

that PW-28 S.I., P.S. Muppala and other police staff came to

the place of occurrence and injured were taken to the village

and then to the hospital within an hour. He stated that PW-

28 S.I., P.S. Muppala did not record his statement. PW-3 was

attached to P.S. Muppala. PW-28 S.I., P.S. Muppala should

have recorded his statement and registered a case but he

did not do so. PW-8 stated that S.I., P.S. Muppala came to

the spot but he did not record his statement. PW-9 and PW-

10 made similar statements. PW-12 stated that he escaped

from the scene of offence, went to the village and came back

to the scene of offence with the villagers. He stated that he

informed the police about the incident. PW-13 stated that he

escaped from the scene of offence and returned with the

16

Page 17 police. He stated that when he revealed the incident to the

police, they recorded his statement. PW-14 stated that he

had informed about the incident to the police but he does

not know whether the police had reduced his information

into writing. PW-15 stated that he had witnessed the

occurrence for about three minutes. He had informed the

police about the incident but the police did not record his

statement.

14.PW-28 S.I., P.S. Muppala admitted that he shifted the

injured to the hospital and the injured informed him that the

opposite group had attacked them. He stated that when he

went to the village to get a tractor to shift the injured, he

had informed his superiors about the incident on phone. He

further stated that PW-29 Circle Inspector (IO) came to the

village at 3.00 a.m. and he assisted him in the investigation

at the spot. Thereafter, he proceeded to the Police Station,

Muppala and there, he received copy of the FIR from S.H.O.,

Sattenapally. The evidence of all these witnesses read with

evidence of PW-28 S.I., P.S. Muppala show that the witnesses

17

Page 18 had informed PW-28 about the incident and the fact that the

opposite party had attacked them. While statements of

some witnesses were not recorded, statements of some

witnesses were recorded, but they were not produced. PW-

28 S.I., P.S. Muppala ought to have registered the FIR on the

basis of statements of injured eye-witnesses. PW-3 Head

Constable was, in fact, attached to the P.S., Muppala and

was working under him. It is not understood why his FIR was

not recorded. The omission to record the statement of any

of the injured witnesses as FIR or to record statements of

witnesses under Section 161 of the Cr.P.C. by PW-28 casts a

shadow of doubt on the prosecution case. There was no

need for the police to wait for recording of the statement of

PW-1, treat that as dying declaration and then register the

FIR on that basis. While, according to the prosecution, the

incident took place at 1.00 a.m. on 17/3/1993, PW-1’s

statement [Ex-P/1] was recorded at 3.15 a.m. In the facts of

this case, not registering FIR on the basis of statement of

injured witnesses at the spot of incident and the delay in

registering FIR give rise to a suspicion that the injured

18

Page 19 witnesses were unable to name the accused on account of

darkness and that the FIR was doctored in the form of dying

declaration of PW-1 which was subsequently converted into

Ex-P/26. This reasoning of the trial court appears to be

correct and ought not to have been disturbed by the High

Court.

15.Pertinently, the High Court also took note of the fact

that PW-28 S.I., P.S. Muppala did not record the statements

of witnesses. But the High Court brushed aside this serious

lacuna in a perfunctory manner. The High Court noted that

even though injured persons were present, PW-28 S.I., P.S.

Muppala did not record their statements, he did not obtain

any written complaint, he did not register any complaint and

did not send any requisition for medical treatment. The High

Court further noted that PW-28 S.I., P.S. Muppala did not

make any enquiry with PW-2 and PW-4 about the incident.

The High Court observed that PW-2 and PW-4 would have

given the earliest version of the incident. But, surprisingly,

the High Court explained away PW-28 S.I., P.S. Muppala’s

19

Page 20 inaction by observing that probably, he might not have

brought any papers to the scene of offence. The High Court

observed that since the witnesses were injured, PW-28 S.I.,

P.S. Muppala’s first duty was to shift them to the hospital.

The High Court then observed that PW-28 S.I., P.S. Muppala

might be aware that being only Sub-Inspector, he could not

have conducted investigation of a murder case and that he

was perhaps expecting the Inspector of Police to take up

investigation as he had informed him on phone. The High

Court further observed that at best not recording statements

of witnesses is an irregularity and cannot affect the veracity

of prosecution case. We are of the opinion that the High

Court treated this gross lacuna in the prosecution case

lightly. In this case, where relations between the two sides

were strained, there was an earlier incident of attack and

there were about 50 accused involved in the incident, the

earliest version of the prosecution case was most crucial but

it was not noted down.

20

Page 21 16.The evidence of PW-29, the Circle Inspector, P.S.

Muppala, who was the Investigating Officer, would also throw

some light on this aspect. It is clear from his evidence that

he received the information with regard to the incident much

prior to Ex-P/1. He was informed by PW-28 S.I., P.S. Muppala

about the several statements made by the witnesses. He

stated that he instructed PW-28 S.I., P.S. Muppala to send

the injured witnesses viz. PW-11, PW-12 and PW-13 to

Government Hospital, Sattenapally and then he examined

PW-14, PW-15 and PW-16. He admitted that he did not note

down the information received about the occurrence

anywhere. He further stated that on the night intervening

16/3/1993 and 17/3/1993, he did not visit Tondepi village at

all and he did not ascertain from the police picket at Tondepi

village as to whether any report was received by the police

picket on that night regarding the incident. He stated that

he did not make any further enquiry. He stated that when

he reached P.S. Muppala between 7.00 p.m. and 8.00 p.m.,

the Sentry talked to him and told him about the incident. He

admitted that he did not give any instructions to the Sentry

21

Page 22 to register the case on the basis of that information. He

admitted that after visiting the scene of offence where PW-

28 S.I., P.S. Muppala and other staff were present, he did not

register the case nor did he ask PW-28 S.I., P.S. Muppala to

register the case. He further admitted that PW-28 S.I., P.S.

Muppala had informed him that the injured persons had told

him that people from Rayudu group waylaid and attacked

them with country made bombs and they could identify

them. But, he did not register any FIR nor did he ask PW-28

S.I., P.S. Muppala to register the FIR. He tried to explain this

by stating that since the dying declaration was being

recorded, he directed PW-28 S.I., P.S. Muppala to register the

FIR on the basis of the dying declaration. He admitted that

by the time he conducted the inquest of the dead body of

Singaiah at the place of offence, he had examined and

recorded the statements of PW-1 to PW-11 and after the

inquest he recorded the statements of PW-12 to PW-16. He

admitted that the FIR was not registered even at the time of

examination of PW-1 to PW-6 by him in the hospital. The

evidence of this witness also shows that though the earliest

22

Page 23 version was available, it was suppressed. This makes the

investigation of the case suspect.

17.PW-21 is the doctor attached to the Government

Hospital, Sattenapally. He stated that he sent an intimation

to the Police Station, Sattenapally in respect of admission of

PW-1, PW-3 and PW-4. The intimation is at Ex-P/20. It bears

the date 16/3/1993 but does not state the time. It also bears

the signature of PW-21. PW-21 further stated that on

17/3/1993 at 3.05 a.m., he sent requisition to the Magistrate

for recording the dying declaration of PW-1. It is at Ex-P/18.

Admittedly on this requisition, the date was originally put as

16/3/1993. But, later on, ‘6’ is overwritten as ‘7’. Thus, Ex-

P/20 and Ex-P/18 create doubt about the time and date of

the incident. If PW-1, PW-3 and PW-4 were admitted in the

Government Hospital on 16/3/1993 then, the incident could

not have happened at 1.00 a.m. on 17/3/1993. The

explanation given by PW-21 that he changed the date from

16/3/1993 to 17/3/1993 as it crossed midnight does not

stand to reason. It is pertinent to note that PW-21 did not

23

Page 24 send any intimation to the police in respect of other injured

witnesses. PW-28 S.I., P.S. Muppala and PW-29 the Circle

Inspector, P.S. Muppala also did not send any requisition to

the hospital with respect to the other injured witnesses. PW-

27 S.I., P.S. Sattenapally stated that he received Ex-P/20 i.e.

intimation in respect of admission of PW-1, PW-3 and PW-4

bearing date ‘16/3/1993’ and the signature of PW-21 at

10.30 p.m. This means the injured were in the hospital by

the time of preparation of Ex-P/20 i.e. before 12.00 midnight.

The trial court’s view that this creates doubt about the

prosecution’s claim that the incident happened at 1.00 a.m.

on 17/3/1993 cannot be called perverse. Moreover, if PW-1,

PW-3 and PW-4 were admitted in the hospital on 16/3/1993

much prior to midnight and if PW-1’s dying declaration had

to be recorded, requisition should have been sent to the

Magistrate by PW-21 immediately and not at 3.05 a.m. on

17/3/1993. Consequently, Ex-P/1 i.e. the dying declaration

of PW-1 recorded at 3.15 a.m. on 17/3/1993 gives scope to

criticism that after prolonged discussion, the investigating

officer through PW-21 sent the requisition to the Magistrate

24

Page 25 and the dying declaration was recorded after much

deliberation. Pertinently, PW-8 stated that some of their

party leaders had visited them in Sattenapalli hospital.

Besides, PW-19, who was attacked prior to the incident in

question, was already there in the hospital. Therefore, there

is basis for the criticism that there was deliberation before

recording the dying declaration. The High Court has referred

to the evidence of PW-4 to the effect that no leaders from

the party of the prosecution witnesses had visited the

hospital. The High Court held that therefore, there can be no

tutoring. It is difficult to accept this submission given the

history of this incident. PW-19 was attacked by the other

group prior to the incident in question. His presence in the

hospital at the time of recording of PW-1’s dying declaration

and other statements itself is sufficient to create doubt

about the credibility of the prosecution case.

18.It is also pertinent to note that while PW-13, the Head

Constable stated that the injured were first taken to the

village and then to the hospital, PW-28 S.I., P.S. Muppala

25

Page 26 stated that the injured were directly taken to the hospital. If,

as stated by PW-13 the injured witnesses were first taken to

the village and then to the hospital, then it is possible that

after consultation with villagers they implicated the accused.

This makes a dent in the prosecution story.

19.There are certain other aspects which add up to the

weaknesses of the prosecution case. Ex-P/1 states that

Challa Narasimha Rao went to the hospital along with PW-1,

but his name was not in the charge-sheet as a witness. Ex-

P/1 refers to Somapalli Kotaiah as an assailant but his name

does not figure in the charge-sheet as an accused. Ex-P/1,

which was recorded at 3.15 a.m. on 17/3/1993, states that

two persons were murdered. As per intimation [Ex-P/19],

deceased-Chanchaiah died at 4.50 a.m. on 17/3/1993. It is

not understood how it is stated in Ex-P/1 that two persons

were dead. PW-1 stated in his cross-examination that he did

not get down from the tractor at any stage. But in his dying

declaration [Ex-P/1], he stated that he fell down in the

bushes. Moreover, in the inquest report prepared by PW-29,

26

Page 27 the name of one Challa Koteshwar Rao is shown as the

person who first saw deceased-Singhaiah dead. In column 4,

name of Challa Koteshwar Rao is mentioned as the person

who had last seen deceased-Singhaiah alive and that he was

traveling in the tractor along with other witnesses. However,

PW-17 Cholla Mangammao, the wife of deceased Singhaiah

stated that on that day, Challa Koteshwar Rao was in the

village. Seizure of weapons has been disbelieved by the trial

court as well as the High Court. It is also important to note

that PW-1 stated in Ex-P/1 that 30 people attacked them.

But names of only A1 to A12 and A15 figured therein.

Names of all the accused were not stated by the witnesses.

They stated that they would be able to identify the accused.

However, no identification parade was held. Therefore, it

cannot be said with certainty which accused attacked whom.

Moreover, there are so many omissions and contradictions in

the evidence of prosecution witnesses, that the entire fabric

of prosecution case appears to be ridden with gaping holes.

These discrepancies have been meticulously noted by the

trial court. The High Court, however, holds that the

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Page 28 witnesses were examined 5½ years after the incident and,

therefore, such discrepancies are natural. It is true that due

to passage of time, witnesses do deviate from their police

statements as their memory fades to some extent.

Reasonable allowance can be made for such discrepancies.

But when such discrepancies make the foundation of

prosecution case shaky, Court has to take strict note thereof.

In this case, the trial court has meticulously located the

discrepancies and opined that the witnesses have

discredited themselves. The High Court ought not to have

overlooked this reasoning of the trial court.

20.Finally, we must note that the High Court has not stated

why it felt that the trial court’s view was perverse. It has not

stated what were the compelling reasons, which persuaded

it to disturb the order of acquittal. As noted by this Court in

several decisions if two reasonable views are possible, the

appellate court shall not disturb the order of acquittal

because it feels that some other view is possible. The

reasonable view which reinforces the presumption of

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Page 29 innocence of the accused must be preferred. In our opinion

the trial court’s view was not perverse. It was taken after

thorough marshalling of evidence. It was a reasonably

possible view. The High Court erred in disturbing it.

21.In the circumstances, the appeals are allowed. The

impugned judgment and order is set aside. The appellants

in both the appeals are acquitted of all the charges. They

are on bail. Their bail bonds stand discharged.

…..……...…………………………..J.

(Sudhansu Jyoti Mukhopadhaya)

.…………………………..J.

(Ranjana Prakash

Desai)

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Page 30 New Delhi;

April 22, 2014.

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