REPORTABLE                IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

     CRIMINAL APPEAL NOS. 634-635   OF 2008

GAMINI BALA KOTESWARA RAO & ORS. ..  APPELLANT(S)

vs.

STATE OF A.P. THR. SECRETARY ..  RESPONDENT(S)

O R D E R

This appeal by way of special leave arises out of  

the following facts:

On 6th March, 1995 Mandal elections were to be held  

in  village  Gadiparthivaripalem.  Two  of  the  candidates  

contesting  the  election  were   the  deceased  Soodidela  

Satyanarayana Reddy and Mandap Venkateswarlu, one of the  

accused (A.6).  

At about 7.00 a.m. the deceased was standing along

with PW.1 his nephew, Soodidela Bapireddy, in front of the  

polling station, when all the accused, 20 in number,  armed  

with lethal weapons such as axes, knives, sticks and stones  

attacked him.  A.1 Kotesswara caught hold of the deceased  

by his hair and gave two blows with a stone on his forehead  

and  also  stabbed  him  with  a  knife  on  his  chest,   A.2  

Hanumantha Rao and A.3 Krishniah who were both armed with  

axes  caused  injuries  on  the  back  of  the  head  of  the  

deceased whereafter A.1 again stabbed the deceased on his  

shoulder.   

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On receipt of the injuries the deceased fell to the ground.

The accident was witnessed by Pw.1 and in addition by PW.5-

Pambha Soubhagyamma, a vegetable hawker.   PW.1 raised an  

alarm  whereupon  PW.6  and  PW.7,  Soodidela  Subbamma  and  

Soodidela Vijaylakshmi,  rushed and found that  the victim  

was  bleeding from serious injuries.  They attempted to  

move him towards his house but he passed away after a short  

while.  The other accused A.4 to A.20 thereafter hurled  

stones on the witnesses including PW.1 and PW.5 causing one  

simple injury  with a stone on the back of PW.1.   PW.12  

and PW.16 an ASI and Head constable, who were on polling  

duty in the village, also rushed to the spot and saw the  

accused throwing stones at the opposite party.  PW.12 too  

identified  the  accused  at  that  stage.   Certain  other  

witnesses later rushed to the place and found the deceased  

and PW.1 lying there with injuries.  Information was also  

sent to PW.22 the Sub-Inspector of Police, Chimakurthy, who

rushed to the village and recorded the PW.1's statement and  

the First Information Report was registered on its basis at  

the police station at about 11.30 a.m.  PW.23 the Inspector  

of Police, Ongole, Rural Circle, thereafter took up the  

investigation  and  visited  the  scene  of  occurrence  and,  

amongst other items, seized the stone allegedly used by A.1  

in the attack on the deceased.  He also dispatched the dead  

body for its post-mortem examination. The post-mortem  

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revealed the presence of eight  injuries on the dead body.  

Several  other doctors (PWs. 14,15&19)  also treated PW.1  

and  PWs. 2 to 4 and gave them wound certificates for the

injuries they had allegedly suffered. On the completion of  

the  investigation  all  the  accused  were  charged  under  

Sec.148 of the IPC, A1 to A3 were charged under Sec.302 of  

the IPC and the others under Sec.302 read with 149 IPC and  

under Sec.324 of the IPC.  They all pleaded not guilty and  

were brought to trial.

The  prosecution,  in  support  of  its  case,  placed  

reliance on several witnesses but  we are at this stage  

concerned primarily with the evidence of PW.1 and PW.5 the  

two  eye  witnesses.   On  completion  of  the  prosecution  

evidence the statements of the accused were recorded under  

Sec.313  of  the  Cr.P.C.  They  pleaded  false  implication.  

Some  documents  in  evidence  were  also  tendered  by  the  

accused.

The trial Court in its judgment dated 5/9/2003 held  

that  PW.1  the  nephew  of  the  deceased  was  an  interested

witness, whereas PW.5 happened to be present at the place  

of incident by chance as she belonged to another village  

and  was  a  vegetable  hawker  by  profession.  The  Court  

observed that in this view of the matter it was essential  

that some corroboration be sought on account of the very  

nature of the evidence of these two witnesses.  The Court  

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then went into the medical evidence and found that the same  

did not support the ocular evidence inasmuch the injuries  

found on the dead body did not correspond to the injuries  

referred to by the eye witnesses as the number of injuries  

sustained by the deceased were eight in number as per the

post mortem certificate Ext. P.2, but the evidence of PW.1  

and PW.5 referred to only five injuries caused by the three  

accused i.e. A.1 to A.3.  The Court accordingly concluded  

that  the genesis of the incident had been suppressed and  

that  apparent  inconsistencies  had  occurred  in  the  eye  

witnesses  account  vis-a-vis  the  medical  evidence  and  as  

these  omissions/inconsistencies  went  to  the  root  of  the  

matter the evidence of these two witnesses could not be  

accepted.  The Court further found that the evidence with  

regard to the accused other than A.1 to A.3 was even more  

unacceptable and, having held as above, acquitted all the  

accused. The State thereupon took the matter to the  

High court in appeal.  The High Court held that the eye  

witnesses account of PW.1 and PW.5 fully corresponded with  

the  medical  evidence;  that  the  presence  of  the  two  

witnesses had been fully explained and that the so called

improvements and inconsistencies referred to by the trial  

Judge in the course of its lengthy judgment, were innocuous  

and  did  not  go  to  the  root  of  the  matter  and  could,  

therefore, be ignored and having held so (and calling the  

judgment of the trial Court qua A.1 to A.3 as  perverse)  

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partly allowed the appeal and convicted them but confirmed  

the judgment of the trial Court with respect to the other  

accused.  A.1 to A.3 are before us by way of special leave.

Mr.  L.N.Rao,  the  learned  senior  counsel  for  the  

three appellants has first and foremost pointed out that  

the High Court was dealing with the matter as an appeal  

against acquittal and in the light of the settled position

in law if two views on the evidence were possible the view  

taken by the High court in favour of an accused,  should  

not  have  been  disturbed  and  that  interference  with  a  

finding  of  fact  save  in  exceptional  cases  was  not  

justified. The learned counsel has placed reliance on (Ram  

Chander and Others vs. State of Haryana) 1983 (3) SCC 335,  

(State of Rajasthan vs. Raja Ram) 2003 (8) SCC page 180,  

(Jai Singh and Others vs. State of Karnataka) 2007 (10) SCC  

788 .  On facts Mr. Rao has urged that the observations of  

the trial Court that PW.1 was an interested witness and  

PW.5  a  chance  witness  called  for  no  interference  more  

particularly  as  no  corroborating  evidence  had  come  on  

record.  He  has  further  highlighted  that  the  medical  

evidence  was  completely  at  variance  with  the  ocular  

evidence and in that eventuality the accused were entitled  

to claim the benefit of doubt in their favour.

The learned State counsel has, however, supported  

the judgment of the High Court and has pointed out that the  

High Court had dubbed the judgment of the trial Court as  

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perverse and had for adequate reasons and a  minute re-

appraisal of the evidence reversed the findings thereof.  

It has also been pointed out that the observation of the  

trial Court that there was substantial differences between  

the statements given to the police and the evidence given  

in Court vis-a-vis PW.1 and PW.5 was not correct as PW.1  

who was the author of the FIR had specifically mentioned  

that PW.5 had been present at the time of incident and even  

in his statement under Sec. 161 Cr.P.C. this fact had been

noted.

We have considered the arguments advanced and heard  

the matter at great length. It is true, as contended by Mr.  

Rao, that interference in an appeal against an acquittal  

recorded  by  the  trial  Court  should  be  rare  and   in  

exceptional circumstances. It is, however, well settled by  

now that it is open to the High Court to re-appraise the  

evidence and conclusions drawn by the trial Court but only  

in a case when the judgment of the trial Court is stated  

to be perverse.  The word `perverse' in terms as understood  

in law has been defined to mean “against the weight of  

evidence”. We have to see accordingly as to whether the  

judgment of the trial Court which has been found perverse  

by the High Court was in fact  so.  We have gone through  

the evidence of PW.1 and PW.5 very carefully with the help  

of the learned counsel. PW.1 stated that he had come to the

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place  of  incident  as  his  uncle,   the  deceased,  was  a  

candidate  in  the  election.  His  presence  is  therefore  

absolutely natural.  PW.5 stated that she was vegetable  

vendor and had come to the site in order to sell her wares.  

Mr. Rao, has, however, sought to demolish her testimony by  

observing that she had started from her house at about 7.00  

a.m. (as stated by her)  and had reached the murder site  

after selling vegetables to several people  and realising  

this difficulty she had changed the time to 6.00 a.m. to  

suit the circumstance that the murder too had committed at  

7.00 a.m. We are of the opinion that inconsistency can be

ignored as the witnesses belonged to a deprived section of  

society and her statement was being recorded after 8 years  

of the incident. It also cannot be ignored that PW.5 was  

hawking  vegetables  and  it  would,  therefore,  have  been  

logical for her to have chosen the polling site for a visit  

as that would have ensured a crowd, and a crowd would have  

meant good business. Mr. Rao has also pointed out that PW.5  

belonged to the Congress party which was the party of the  

deceased as well whereas the appellants belonged to the  

Telugu Desan Party  and as such she could not be said to be  

an  impartial  witness.   The  matter  has  been  extensively  

dealt with by the High court and we believe that had there  

been any motive to implicate  any body on the basis of  

party affiliations, the main role in the entire incident

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would  have  been  ascribed  to  A.6  who  was  the  rival  

candidate.  On the contrary  A.6 has been given a very  

minor role  in the entire incident and this was one of  

factors that had let to his acquittal by the trial Court  

and the confirmation of that order by the High Court as  

well.

Great  emphasis  has  been  laid  by  Mr.  Rao  in  the  

apparent  discordance  between  the  medical  and  the  ocular  

evidence.  We reproduce herein the injuries found on the  

dead body:

“1. Incised injury 2” x 1/2” on lower border of left  

color bone, extending downwards, backwards obliquely  

in the mid clavicular bone, through II inter costal

space into the upper to be of left lung, margins  

clean  cut  spindle  shaped,.  cut  section  showed  

congestion of tissues injury in the lungs (L) is 1”  

x 1/2” size.

2. Incised injury 2” x 1/2” on left infrascapular  

area at the level of 4” thoracic vertebra 3” away  

from  midline  extending  obliquely  down  wards  

medically entered the plura cavity through 4th inter  

costal space.

2

3 3.  Incised injury 2” x 1/2” on front of lower  

third of left upper arm. Muscle deep.

2 4.  Lacerated injury 2” x 1” on the left temple,  

muscle deep.

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2 5.  Contusion 2” x 1” on right temple.

3

4 6.  Incised injury 2” x 1/2” on left half of  

occipital area 2” away from left ear.

2 7.  Incised injury 2” x 1/2” on left half of  

occipital area 1” below and medial to injury  

No.6 margins clean cut, spindle shaped, scalp  

deep.

3

4 8.  Incised injury 2” x 1/2” two in number on  

left  shoulder  pronounce.   Muscle  deep  margins  

clean cut, on cut section congestion of tissues  

present.”

A perusal of the injuries would reveal that injury  

No.1 has been caused by A.1, Injury No.2 either by A.2 or  

A.3, Injury No.3 by A.1, Injury Nos.4 and 5 by A.1 with a  

stone and there are three or four additional injuries (on

which emphasis has been laid by Mr. Rao) as they remain  

unexplained. Even assuming, however, that three injuries  

out of eight are unexplained, this one circumstance alone  

would not destroy the  flow of  the other evidence.It  is  

clear that the incident had happened in the course of the  

Mandal  Parishad  Elections  with  several  people  being  

involved and a large group of spectators being present at  

the spot. In this scenario we feel that it would have been  

well  nigh  impossible  for  any  witness  to  have  given  a  

mathematical  or  precise  description  of  all  the  injuries  

that had been caused and that too in a melee.  The fact  

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remains that the injuries found on the dead body correspond

fully with the weapons that had been used.  As a matter of  

fact injury Nos.4 and 5 which appeared to be inflicted with  

a stone allegedly in the hands of A.1 clearly prove the  

veracity of the story as it would have been inconceivable  

for  a  witness  to  have  imagined  that  a  stone,  (a  very  

unusual weapon for a pre-planned attack) would be used  as  

A.1 was also armed with a knife which he used after the  

injury had been caused with a stone. We  are  thus  of  the  

opinion  that  the  medical  evidence  does  not  in  any  way  

contradict the ocular evidence.

We  have  also  gone  through  the  so  called  

improvements/inconsistencies  in  the  statements  given  by  

PW.1 and PW.5 to the police vis-a-vis their statements in  

court.  It must be emphasized that the incident happened in  

the year 1995 whereas the evidence was recorded after about  

8  years.   Some  discrepancies  are,  therefore,  bound  to

occur.  The  question  to  be  noted  is  as  to  whether  the  

discrepancies or improvements are such which go to the root  

of the matter and  affect veracity of the prosecution's  

story.  We are of the opinion that the evidence herein does  

not fall within this slippery category. It is clear from  

the FIR recorded by PW.1 and his statement in Court that  

PW.5 had been present at the time of the incident.  The  

other discrepancies that have been pointed out are to no  

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avail  keeping  in  view  the  over  all  picture.   We  are,  

therefore, of the opinion that the High Court was fully

justified in interfering  in the matter and was well within  

its  jurisdiction  to  do  so,  even  in  the  light  of  the  

judgments cited by Mr. Rao.  The appeals are, accordingly,  

dismissed.

                     .................J.          (HARJIT SINGH BEDI)

.................J.                                      (B.S. CHAUHAN) New Delhi, August 19, 2009.