Paragraph numbers below are the court’s original numbering, recovered from the source text.
3. The accused persons pleaded not guilty to the charges levelled against them and their defence was that they had been falsely implicated as they belonged to the group rival to that of P.W. 1 and the deceased.
4. In support of their respective cases, the prosecution examined C twelve witnesses and the defence four.
5. That Nagufu met with his death owing to a murderous assault stands conclusively proved by the testimonies of the Investigating Officer (P.W. 12), who held inquest upon his dead body and Dr. M. Ranganadha Babu (P.W. 11), who performed the autopsy and found as many as 27 D injuries of different nature and dimensions spread all over the body of the deceased. He opined that the deceased died of shock and heammorhage caused by injuries to spinal cord, neck vessels and fracture. Indeed this part of the prosecution case was not seriously challenged by the defence.
6. The crucial question that now falls for our determination is whether the prosecution has succeeded in conclusively proving that the appellant committed the murder. To prove this part of its case the prosecu- tion relied solely upon the ocular version of P.W. 1. Both the learned Courts below found the evidence of P.W. 1 trustworthy and as, according to P:W. 1, the appellant had inflicted the blows on the neck of Nagulu, recorded their respective findings against the appellant.
7. Ordinarily, this Court while exercising its jurisdiction under Article 136 of the Constitution of India does not disturb concurrent findings of fact and, for that matter, reappreciates and reassesses the evidence unless it is G of the opinion that the approach of the learned Courts below in arriving at such findings has resulted in grave miscarriage of justice. To put it differently, if this Court notices that concurrent finding of fact has been recorded by the trial Court and the appellate Court on the testimony of a witness, ignoring or overlooking other evidence and attending facts and circumstances which have an important bearing on the credibility of such H A a witness, it becomes the duty of this Court to reappraise the evidence, and interfere with such finding if the interest of justice so requires. Judged in the above context the instant case, in our opinion, calls for such inter- ference.
8. Coming first to the FIR that P.W. 1 lodged, we find that therein he not only the names of aU the fifteen persons who, according to him, committed rioting and the murder, but also the names of their respective fathers. In his testimony, however, P.W. 1 only named and identified seven of them, including A-1 to to A-4 and A-13, as the miscreants. Further when in his cross examination, P.W. 1 was asked as to whether he knew the C names of the fathers of all the accused persons and whether he had given their names in the FIR, he stated that he knew the fathers' names of half of the accused persons and that he did not remember if he had given the names of the fathers of the accused persons in the report he lodged with the police. From the failure of P.W. 1 to name and identify eight of the D accused persons during trial and his admission in cross examination that he knew the fathers' names of some of the accused persons, the only reasonable conclusion that can be drawn is that he furnished those names in the FIR at the instance of some other person, and that person can only be Venkataramaya, the leader of their faction, for P.W. 1 admitted that he (Venkataramaya) wrote down the FIR.
Obviously, to rope in members of their rival group to which the accused persons belonged that a garbled versi.on rdating to the murder of Nagulu was furnished to the police through the FIR. In arriving: at the above conclusion we have drawn support from the fact that instead of going directly to the Police Station after informing the parents of the deceased, P.W. 1, admittedly, went to the leader of his group to get the report, which he was to lodge at the Police Station, drafted. From the impugned judgment we, however, find that the High Court did not consider this aspect of the matter from a proper perspective event though the High Court's attention was specifically drawn to it. Indeed, the comment the High Court made in this regard is that P.W. 1 might have forgotten the names of all the accused persons as G he was testifying in Court two years after the incident. The other comment is that the mere fact that he gave the names of fifteen accused persons in the FIR but did not depose about all of them, could n6t be a circumstance to indicate that the report is the manipulation of their leader.
Apart from the fact that the High Court did not deal with the question as to how H father's names of all the accused persons found place in the FIR, we find NA YUDU SRIHARI v. STATE (M.K. MUKHERJEE, J.) that the above co.mments of the High Court are based on wrong reading A of the evidence of P.\Y. 1 who in his deposition had earlier testified that he knew all the accused persons and that he could identify them.
9. From the evidence of P.W. 1 we further notice that A-1 had come at or about 2~00 A.M. to call Naguin to go along with him for doing some B earth work and on being so asked, Naguin left with A-1. We find it difficult to accept the above version of P.W. 1 for, admittedly, A-1 was a member of the faction rival to the deceased and, therefore, it was unlikely that Naguin would immediately respond to the request of A-1 and accompany him for doing the earth work, and that too at that unearthly hour. Obvious- ly, to meet such a contention, if raised, it was stated by P.W.1 that though c A-1 belonged to his rival group, still he continued to be his friend and this statement of P.W. 1 found favour with both the learned Courts below. The learned Courts below, however failed to consider the other relevant evidence on record that only few months prior to the incident, the deceased had been arraigned for the murder of a member of the group to which A-1 D and A-13 belonged.and that this group was waiting for an opportunity to kill Naguin." Considered in the background of such enmity,· P.W.l's claim that the deceased still continued to be a friend of Al was clearly a tall one. Rather, it appears to us that a call at such unearthly hour by A-1 would have certainly put Naguin on guard and he would not have ventured to accompany him. We, therefore, feel hesitant to accept the evidence of P.W. E 1 that the deceased left his house on the request of Al. Resultantly, P.W.l's further evidence that as he was present in the house then, he also accom- panied them to go to his own village becomes also suspicious.
10. The claim of P.W. 1 that he was in the house of Naguin on the F fateful night, that he accompanied him and that he witnessed the incident, is also belied by the evidence of his parents who were examined as DW-1 and DW-2, both of whom asserted that in the night in question he (P.W. 1) was in his house in village Sangameswaram and that of DW-3, who testified about his presence in her (D.W.5's) shop at village Sangames- G waram on the following morning, when, according to P.W. 1, he was in village Nali. The Trial Court discarded the evidence of the above three defence witnesses solely on the ground that they were partisan witnesses. If the evidence of a witness was to be discarded – without 4iscussing it – solely on the ground that he was a partisan witness, the trial Court ought not to have then relied upon the evidence of P.W. 1 who was also a partisan H and interested witness, as he belonged to the group rival to that of the accused persons. So far as the criticism of the High Court in this regard is considered, we find that it did not at all consider the evidence of DW-3; and rejected the evidence of DW-1 and DW-2 merely on the ground that as P.W. 1 was living in a separate house, their evidence was highly artificial c and, therefore, no reliance could be placed on it. The High Court, however, did not spell out the reasons which prompted it to make such an observa- tion, On the contrary in the absence of any cogent and convincing reason as to why they would falsely controvert the assertions of their own son that he was in the house of Nagulu in the night in question, we are unable to reject their testimonies. It is of course true that both the witnesses testified that P.W. l was having a separate house but their evidence proves that they were living in adjacent houses.
11. The other reason which prompts us to discard the evidence of P.W. 1 as improbable is that if really he was present when the murder took place, he would not have been spared by the accused persons and were D fifteen in number and were armed with deadly weapons, more so when he was a member of the rival group. Unfortunately, all these aspects were not considered by the learned Courts below from a proper perspective.
12. For the foregoing discussion we are unable to uphold the convic- tion of the appellant under Section 302 IPC for the murder of Nagulu. We, therefore, allow this appeal, set aside the impugned judgment and acquit the appellant. The appellant, who is in jail, be released forthwith unless wanted in connection with any other case. S.K. Appeal allowed.