SUDHA RENUKAIAH & ORS. versus STATE OF A. P.

13. Trial Court after noticing the evidence of PW.16 has made the following observation : "In fact, this evidence gives rise to many qoubts. First of all it is not possible to hold that the nature of injuries could be caused with sharp edged weapon like hunting sickle."

14. The Trial Court held that it is not possible to hold that the nature of injuries could be caused with sharp edged weapon like hunting sickle. This was one of the reasons for discarding the evidence of PW.5.

15. PW.5 himself came in the witness box and was examined. PW.5 has deposed about the injuries caused to him. In his statement PW.5 stated: ''Velivala Akkaiah (Al9) beat me on my right temporal bone D· with a knife. Botchu Vasu(All) beat with a stick on my right sticks. Valivala Akkaiah (A 19) caught hold of my hands and legs and thrown me. I lost consciousness. I regained consciousness in Hitch Hospital, Guntw: After that police examined me. ''

16. When PW.5 has stated that he was beaten by knife and stick on right temporal bone, the injuries found in his person have to be looked into in the light of the evidence given by him.

17. When, PW.5 himself has stated that he was attacked by 1:.nife and stick the injuries which were noticed by the Doctor were caused by knife and stick, since there is no inconsistency between the ornlar evidence of PW.5 and medical evidence of PW.16, the reason given by the Trial Court for discarding the evidence of PW.5 is incorrect.

18. The Trial Court further has observed that PW.23 had not takeri any endorsement from the Doctor to the effect that PW.5 was in fact in unconscious state of mind, when he visited Hospital on 10.10.2003 and found PW.5 unconscious. The Trial Court further observed that since PW.5 was unconscious for considerable period and regained consciousness nearly after more than 20 days, it was expected that the investigation agency to secure the presence of the Doctor while examining A this"' itness. The Trial Court made the following observation in paragraph 17: c "Even according lo prosecution, PW.5 was unconscious for considerable period and regained consciousness nearly after more than 20 days. Naturally. we will expect the investigation agency to secure the presence of the doctor while examining this witness. Jn the above circumstances, any amount df doubt .is created about the examination of this witness. Even at the sake of repetition it must be pointed out that the absence of evidence from the doctor PW.16 that PW.5 was brought to the hospital in unconscious state, the whole theory must be disbelieved. Which again will eliminate the evidence cf PW.5. Now we got the evidence of PW.I, 2, 4, 5 and 9."

19. The Trial Cou1i has drawn adverse inference against the evidence of PW.5 on the ground that no evidence was given by the Doctor, PW.16 about the unconscious state of PW.5, hence, the whole D theory must be disbelieved. PW.5 has stated that after being r.ttacked on the scene of occurrence he became unconscious and regained consciousness only at Hitech Hospital, Guntur.

20. PW.23, 10 in his statement has clearly stated that !le went after recording the evidence of PW. I, 2, 3, 4, 6 and 9 to the Government E Hospital, Guntur and found the injured Venkaiahanaidu, PW.5 in unconscious state, hence, could not record his statement. Following was stated by IO in his statement: "I visited GGH Guntur and found the injured S. Vcnkaiah Naidu (P. W. 5) in unconscious state: Hence, 1 could not record his statement. "

21. PW.5 appeared in the Court and in examination-in-chief question was put to him that whether he was unconscious at the time when he was admitted in Government Hospital, Guntur and when he regair.ed his conseiousness. PW.S, both in examination-in-chief and cross- G examination stated that he regained consciousness after 20 days and next day of regaining consciousness his statement was recorded.

22. Doctor, PW.16, who appeared before the Court and recorded his evidence was not even put any question as to whether when Venkaiahanaidu was admitted in Government Hospital, Guntur he was SUDHA RENUKAIAH & ORS. v. STATE OF A. P. [ASHOK BHUSHAN, J.] conscious or unconscious. The observation of the Trial Court that there being no evidence that PW.5 was unconscious and in the absence of evidence that PW.5 was brought to the Hospital in unconscious state, the whole theory is to be disbelieved, is wholly incorrect and perverse appreciation of evidence. There being evidence of PW.5 and 1PW.23 that he was unconscious when he was admitted in Government Hospital, Guntur and there is no co1lll«1ry evidence on the record, the view of the Trial Court that whole theory must be disbelieved is perverse and has rightly been reversed by the High Court.

23. It is also relevant to notice that observation has been made by the Trial Court that IO, PW.23 ought to have taken endorsement from the Doctor that PW.5 was in unconscious state of mind on l O. l 0.2003, although there is evidence that he was unconscious on l 0.10.2003 when he was admitted in the Hospital, the mere fact that certificate was not obtained by IO from the Doctor is inconsequential. Furthermore, it is well settled that even if 10 has committed any error and has aeen negligent in carrying out any investigation or in the investigation there is some omission and defect, it is the legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses. In C. Mu11iapptm amt others 11S. State of Tamil Nadu, (201 ()) 9 sec 567, following has been laid down in paragraph 55: "Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is re!iable or not a11d to what extent ii is reliable and as to whether such lapses affected the ol?iect of.finding oui the truth. "

24. The High Court has specifically considered the evidence of PW.5 in paragraphs 27 and 28 of the judgment. The High Cour': has rightly o!Jserved that the fact of sustaining injuries by this witne~s has not been denied or disputed nor it was suggested to him that he sustained those injuries at a different place in a different manner in the hands of some other assailants. The High Court observed that some lapses on behalf of the investigation in examining the Doctor of the Government Hospital, Guntur or at 1-litech Hospital cannot be taken as sole basis so as to doubt the case of the prosecution. When PW.5 was unconscious, A the delay in examination cannot be said to be fatal to the case of the prosecution. The High Court, thus, has correctly appreciated and relied on the evidence of PW.5 which we find fully in accordance with law.

25. The injured witness PW.5 having given specific role of the persons who caused injuries to deceased Nos. I and 2 which stands B corroborated with the medical evidence, ignoring the evidence of PW.5 an injured witness on the grounds as noted above by the Trial Court is clearly unsustainable and the High Coui1 rightly after considering all aspects of the matter has relied on the evidence of PW.5 for holding the accused guilty. c ,26. We now come to the reasons given by the Trial Court for discarding evidence of other eye-witnesses. With regard to PW. I, Trial Court says that he has admitted that in Ex.PI, the names of A 12toA19 were not mentioned although he stated that he gave the names of the accus>!d when Police examined him. The Trial Com1 observed that so called conspiracy and participation of Al2toA19 is clouded with doubt. D Even if, Al2 ~o Al 9 have been acquitted, their acquittal does not lead the Trial Court to discard the prosecution case as given in Ex.PI and supported by PW. I in his oral evidence. We are, thus, of the view that there is no reason to discard the evidence of PW. I who was an eye- witness. PW.21 is Sub-Inspector of Police who stated that he received E phone call at about 5 p.m. on l 0.10.2003 about the offence. He immediately rushed to the scene of offence and learnt that two injured persons were shifted to Ponnur Government Hospital and he also noticed there a Hero Honda Passion. After posting guard at the scene of offence, SI proceeded to Government Hospital, Ponnur where he came to know that Head Constable 690(PW.20) had already recorded the statement from the complainant. The statement of PW. I was recorded at 6 p.m. as was stated by PW.23, IO in his deposition. The information of offence having been received by Police within one hour and statements of witnesses were recorded by 6 p.m. in the presence of PW.I at the Hospital corroborates the prosecution case of occurrence at 4 p.m. and G shifting of injured to the Hospital immediately. The injured Siva Sankara Rao had died at Ponnur Hospital between 5.30 to 6 p.m., inquest report of which was ~!so prepared immediately. We are, thus, of the view that the Trial Court without any valid reason has discarded the evidence of PW. I and the High Court did not commit an error on placing reliance on PW. I who made statement and gave detail of entire incident in his SUDHA RENUKAIAH & ORS. v. STATE OF A. P. [ASHOK BHUSHAN, J.] statement and details of the accused and manner of carrying out the assault on both the deceased and injured witness. 27. With regard to PW.2, the Trial Court states that when PW.21, Sub-Inspector went on the scene of offence, he did not find PW.2 present on the scene whereas PW. I has informed that while taking the second deceased and PW.5 to Government Hospital, Ponnur, PW.2 was asked to present near the dead body of first deceased. The statement of PW.2 being recorded at Government Hospital, Ponnur his presence at Ponnour Hospital cannot be discarded. We are of the view that only due to the reason that he was not found at the place of occurrence when PW.21 visited the spot does not lead to the conclusion that his eye-witness account be discarded. 28. The Trial Court has observed that prosecution did not try to establish the fact that on l 0.10.2003, i.e., on the date of incident these witnesses and the deceased were required to be present before the Ponnur Court. The Trial Court fu1ther stated that presence of some witnesses at Ponnur Court was not necessary particularly Kalyani, PW.6 daughter of the first deceased. It has come in the evidence that all the persons who were returning from Ponnur Court, presence of few of them was not necessary at Ponnur Court. It has come in the evidence that second deceased and some other who were returning on IO. l 0.2003 were under the conditional bail and were to appear before the Court once in a week. The mere fact that some other persons were not required to be present in the Court also went along with those who were to go to the Court is neither unnatural nor uncommon. In the accused accompanying by the other members of the family while going to the Ponnur Court nothing is abnormal on the basis of which any adverse inference can be drawn by the Trial Court. 29. One of the submissions raised by the learned counsel for the appellants is that Doctor who appeared before the Court was not shown the weapon to give his opinion as to whether injuries could have caused with such weapon or not. Learned counsel for the appellants relied on the case in Kartarey and others vs. State of U.P., 1976 AIR SC G 76=(1976 (1) sec 172 para 26), wherein in paragraph 25 following has been stated: "25 …… … It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if [2017) 4 S.C.R. . A · available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice ….. " 30. In the present case Dr. N. Subba Rao, PW.17 appeared before B the Court who had conducted the postmortem ofTirupati Rao. Doctor in his statement has stated that the injuries could be caused with battle axes c:nd knives. PW.18 has conducted the postmortem of Siva Sankara Rao. PW.18 has stated that "injuries noted in my postmortem can be caused by axes, battle axes and knives". The eye-witnesses in their c eye-witness account have stated that accused used axe, knives and sticks while attacking on deceased Nos.I and 2. The injuries noted in the postmortem of deceased Nos. I and 2 are injuries which can be caused by axe, knives and sticks. Thus, there was no inconsistency with medical evidence and the ocular evidence. The death of both deceased Nos. I and 2 was homicidal in nature. A perusal of the statements of the PW.17 . D and 18, Doctors who conducted the postmortem as well as PW.16 who gave evidence on injuries of PW.5, indicates that they were not shown the weapons by which injuries were caused. It is useful to refer to the external injuries noted by PW.17 on the dead body ofTirupati Rao. In the statement of PW.17, he stated as follows: "On 11-10-2003 at about 3-1 p.m., I conducted postmortem on the dead body of a male body' by name Somarouthu Tirupathirao, first deceased. The external appearance regormortis passed of External injuries:- !. Cut injury of l lx2xl cm., in oblique direction over the left ear lobule extending towards temporal region and downwards towards neck. 2. Cut injury 12×4 cm., bone deep on left parity occipital region. Deep dissection shows linear fracture ofleft parital bone: 3. Cut injury of5x2 cm., scale deep on left front parital region. 4. Cut injury of l Ox5 cm., skin deep on left thigh: 5. Cut injury of20x2 cm., x2.5 cm., from dorsum of right forearm to the dorsum of hand. Deep dissection shows both radius and ulna fractured. SUDHA RENUKAIAH & ORS. v. STATE OF A. P. 47 l [ASHOK BHUSHAN, J.] 6. Cut injury 8×5 cm., skin deep over upper l/3'ct of upper arm. 7. Cut injury of8 cm., x 3×3 4 cm., encircling left shoulder deep dissection shows displacement head of humorous posterior. 8. Cut injury of 7 cm., x 2 x 2 cm., on the back of left shoulder region. 9. A crushed inury on left leg 22 x l 0 cm. bone deep. Deep di~section shows both tibia and fibula fractured. 10. A cut i1tjury of 8 cm. x 3 cm., bone deep in the middle of right thigh. Deep dissection shows of right femur fracture at middle. 11. Cut injury of l Ox2cm., skin deep on left inter scapular 3 re a C on left of back of chest. 12. Cut injury of I Ox2 cm., skin deep on back of chest below injury no. I I. 13. Cut injury of I Ox2 cm., skin deep on right side of back of D chest. 14. Stab injury of 6×2 cm., on right lumbar region and deep dissection shows a lacerated injury of2x l cm., over right kidney on superior lateral region. 15~ An abrasion injury 4 cm., size on back of right thigh." 31. Looking to the injuries as noticed by PW.17, it is clear that the cut injuries as noticed above could be by axe and knife as well as by battle axe as opined by the Doctor. The fact that weapon was not shown to the Doctor nor in the cross-examination attention of the Doctor was invited towards the weapon, is not of much consequence in the facts of F the present case where there was clear medical evidence that injuries could be caused by knife, axe and battle axe. It is not the contention before us that the injuries as noted by the Doctors in the postmortem of deceased Nos.I and 2 could not have been caused by knives and iixes. The submission has also been raised that it was put to the Doctor that injuries by battle axe could be half moon, Doctor himself admitted in his report that he has not reported depth of the injury, middle of the injury nor margins of the injuries have been noted. He has not describeci any injury as the half moon. Doctor himself has admitted that he has not described the shapes of the injuries, depth and middle of the injuries. [20 I 7] 4 S.C.R. A The above medical evidence does not lead to the conclusion that injuries as noticed by the Doctors could not have been caused by axe, knives and battle axe. The eye-witnesses, PW.1,2,3 and 5 have clearly mentioned about the weapons used by the accused which eye-witnesses accounts are in accordance with medical evidence. Thus, mere non-showing of c the weapons to the Doctors at the time of their depositions in the Court is inconsequential and in no manner weakens the prosecution case. Some· discrepancies referred by the Trial Court in the statements of eye- witnesses were inconsequential. The eye-witnesses after lapse of time cannot give picture perfect report of the injuries caused by each accused and the minor inconsistencies were inconsequential. It is useful to refer to the judgment of this Court in Cha11drappa and others vs. State of Karnataka, (2008) 11 SCC 328. In paragraphs l 7 and. 18 following was stated: "17. it has been contended by the learned counsel for the appellants that the discrepancies between the statements of the eyewitnesses inter se would go to show that they had not seen the incident and no reliance could thus be placed 011 their testimo1iy. It has been pointed out that their statements were discrepant as to the actual manner of assault and as to the injuries caused by each of the accused to the cfqceased and to PW 3, the injured eyewitness. We are of the opinion that in such matters it would be unreasonable to expect a witness to give a picture pe1fect report of the injuries caused by each accused to the deceas9d or the iniured more particularly where it has been proved on record that the injuries had been caused by several accused armed with different kinds of weapons_. 18. We also find that with !he passage of time the memory of an eyewitness tends to dim and it is perhaps difficult for a witness to recall events with precision. We hm•e gone through the record and find that the evidence had been recorded more than five years after the incident and if the memOJ:v had partly failed the eyewitnesses and if they had not been able to give an exact description of the injuries, it would not detract from the substratum of their evide1ice. It is however very significant that PW 2 is the sister of the four appellants, the deceased and PW 3 Devendrappa and in the dispute between the SUDHA RENUKAIAH & ORS. v. STATE OF A. P. [ASHOK BHUSHAN, J.] brothers she had continue.I to reside with her father Navilapa who was residing with the appellants, but she has nevertheless still supported the prosec, 1tion. We are of the opinion that in normal circumstances she would not have given evidence against the appellants but she has come forth as an eyewitness and supported the prosecution in all material particulars. " 32. Learned counsel for the appellants has also placed reliance on the judgment of this Court in Eknatlt Ganpat Alter and others vs. State of Maharasthra and others, (2010) 6 SCC 519. In support of the case it is mentioned that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. There cannot be any dispute to the above proposition laid down in paragraph 26 of the judgment which is quoted below: i "26. lt is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the courts are called upon to be very cautious and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to the participation of any of those who have been roped in, the court would be obliged E to .give the benefit of doubt to them. " 33. However, when there are eye-witnesses including injured witness who fully support the prosecution case and proved the roles of different accused, prosecution case cannot be negated only on the ground that it was a case of group rivalry. Group rivalry is double edged sword. 34. Learned counsel lastly contended that there are limitations in the appellate power while exercising it as against an order of acquittal. He has relied on the judgment of this Court in Dhanpal vs. State by Public Prosecutor, Madras, (2009) 10 SCC 401. In paragraphs 21, 22 39 and 41 following has been stated: "21. On proper evaluation of the Trial Court judgment, we hold that the view taken by the Trial Court was certainly a possible or a plausible view. It is a well-settled legal position that when the view which has been taken by the Trial Court is a possible view, then the acquittal cannot be set aside by merely c substituting its reasons by the High Court. In our considered view, the impugned judgment of the High Court is contrary to the settled legal position and deserves to be set aside. 22. The earliest case which dealt with the controversy in issue at length is of Shea Swarup v. King Emperor. In this case, the ambit, scope and the powers of the appellate court in dealing with an appeal against acquittal have been comprehensively dealt with by the Privy Council. Lord Russell wriling the judgment has observed as under: (IA at p. 404): " … the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. " The law succinctly crystallised i11 this case has been consistently followed in subsequent judgments by this Court. 39. The following principles emerge from the cases above: I. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the Trial Court. The Trial Court'.\· acquittal bolsters the presumption that he is innocent. 2. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidenc.e on record. It can review the Trial Courts conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the Trial Court. 3. The appellate court should always keep in mind that the Trial Court had the distinct advantage of watching the demeanour of the witnesses. The Trial Court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb SUDHA RENUKAIAH & ORS. v. STATE OF A. P. [ASHOK BHUSHAN, J.] the Trial Courts acquittal if it has "very substantial and A compelling reasons'·' for doing so. 5. If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction~the High Courts/appellate courts must rule in favour of the accused. 41. The settled legal p·osition as explained above is that if the B Trial Courts view is possible or plausilile, the High Court r should not substitute the same by its own possible view. In the facts and circumstances of this case, the High Court in the impugned judgment was not justified in interfering with the well-reasoned judgmenl and order of the Trial Court. c Consequently, this appeal filed by the appellant is allowed and disposed of and the impugned judgment of the High Court is set aside. " 35. In State of U.P vs. A11il Si11gll, (1988)( Supp). SCC 686, this Court has held that although when two views are reasonably possible, one indicating conviction and other acquittal, this Court will not interfere with the order of acquittal but Court shall never hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would have come to that conclusion, or ifthe acquittal is manifestly illegal or grossly unjust. In paragraph 14 of the judgment following has been stated: "14. The scope of appeals under Article 136 of the Constitution is undisputedly very much limited. This Court does not exercise its overriding powers under Article 136 to reweigh the evidence. The court does not disturb the co!1current finding of facts reached upon proper appreciation. Even if two views are reasonably possible, one indicating F conviction and otl-ier acquittal, this Court will not interfere with the order of acquittal (See: State of UP. v. Jashoda Nandan Gupta; State of A.P. v. P. Anjaneyulu.) Bui this Court will not hesitate to interfere if the acquittal is perverse in the sense that no reasonable person would have come to !hat conclusion, or if !he acquittal is manifestly illegal or grvssly unjust. " 36. Present is a case where the High Court exercised its appellate power under Section 3 86 Cr.P.C. In exercise of Appellate power under Section 3 86 Cr.P.C. the High Court has full power to reverse an order of H A acquittal and if the accused are found guilty they can be sentenced according to Jaw. 37. Present is a case where reasoning of the Trial Court in discarding the evidence of injured witness and other eye-witnesses have been found perverse. The High Court, thus, in our opinion did not B commit any error in reversing the order of acquittal and convicted the accused. From the eye-witnesses account, as noticed above anri for the reasons given by the High Court in its judgment, we are of the view that High Court is correct in setting aside the order of acquittal and convicting the accused. c 38. There is no merit in these appeals. Both the appeals are dismissed. Kalpana K. Tripathy Appeals dismissed.