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CASE NO.: Appeal (crl.)  232-234 of 1997

PETITIONER: Gorle S. Naidu                                           

RESPONDENT: State of A.P. and Ors.                                   

DATE OF JUDGMENT: 15/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

WITH

CRIMINAL APPEAL NOS.           OF 2003 (Arising out of SLP (Crl.) NOS. 3088-90/1997)

ARIJIT PASAYAT,J

       Leave granted in SLP(Crl.)Nos. 3088-90/97.

       These six appeals are interlinked and relate to a Division Bench  judgment of the Andhra Pradesh High Court whereby the respondents were  acquitted. Criminal Appeal Nos. 232-234/1997 is by Gorle Suryanarayana  Naidu (PW-4), the father of the Kurmi Naidu who along with Meesala  Jogulu  (both of them hereinafter referred to as ’deceased No.1 and  deceased No.2’ by their respective names) lost lives on 10.4.1991  purportedly on the basis of assaults made by respondents-accused  persons.  

       In all 39 persons faced trial on the accusations of being  responsible for the death of aforesaid two persons. It is to be noted  that the trial Court acquitted Gorle Ramarao (A-5), Gorle Laxmanarao (A- 6), Gorle Satyam (A-12), Meesala Narayanarao (A-14), Gorle Asirinaidu  Kasavayya (A-15), Relli Ramachandra (A-19), Gorle Ramaswamy, Gorle  Chinnarao, Gorle Ramamurthy O Dihbadu, Gorle Satyam, Gorle  Surappalanaidu, Gorle Papinaidus, Gorle Haribabu, Gorle Venunaidu (A-23  to A-30 respectively), Datti Appayya (A-32), Gorle Sreeramulu, Relli  Sanyasapudu, Gorle Sanasappadu, Pisini Satyam, Gorle Bodinaidu, Buri  Papudu (A-34 to A-39 respectively). Gorle Raminaidu (A-16) and Potnuru  Raminaidu (A-22) were convicted for offence punishable under Section 341  of the Indian Penal Code, 1860 (for short the ’IPC’) and sentenced to  undergo rigorous imprisonment for one year with a fine of Rs.500/-.  Meesala Chandramouli (A-3), Gorle Ramaswamy (A-4), Gorle Harinarayana  (A-7), Muntha Prasadarao (A-9), Pyla Venkatasuri (A-10), Gorle  Sanyasappadu (A-11), Gorle Ramakrishna (A-13), Gorle Raminaidu (A-16),  Muntha Banoji (A-17), Relli Paoinaidu (A-18), Muntha Pardhasaradh (A- 20), Gorle Ramana (A-21) and Potnuru Raminaidu (A-22) were convicted for  offence punishable under Section 324 IPC and sentenced to undergo RI for  two years and also to pay a fine of Rs.500/-each. Gorle Asirinaidu (A- 1), Gorle Vasudevarao (A-2) and Gorle Mohanarao (A-8) were convicted for  the offence punishable under Section 302 IPC and each was sentenced to  undergo imprisonment for life. The sentences of imprisonment imposed on  A-16 and A-22 were directed to run concurrently.

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       Three appeals were filed before the Andhra Pradesh High Court, two  by the convicted accused persons, and one by the State against acquittal  of the accused persons as noted above.  

       Sans unnecessary details the prosecution version as unfolded  during trial is as follows:

       The deceased persons Kurmi Naidu and Meesala Jogulu were residents  of Patharlapalle village. The deceased Kurmi Naidu was the second son of  the first wife of Gorle Suryanarayana Naidu (PW-4). Kurmi Naidu was a  student of Bachelor of Engineering at the relevant time. There was a  fire accident in their village i.e. Patharlapalle wherein more than four  hundred houses were burnt. The Government and the insurance company  sanctioned Rs.500/- and Rs.1,000/- respectively to owner of each of the  houses which was burnt. A group of persons headed by Hari Babu (A-29)  started saying that they had got sanctioned the amount and asked the  recipients to pay Rs.100/- each. The persons, who did not pay the amount  so demanded came and complained to PW-4. On that score a group rivalry  started. One group was headed by A-29 and the other group by PW-4. In  the year 1989, G. Ramarao (A-5) started ’Indira Priyadarsini Yuvajana  Sangam’. The said Sangam started collecting Rs.50/- from each of the  members. Whenever any village refused to join the Sangam, the members of  that Sangam used to damage their agricultural implements like carts  etc., and also the crops. The said Sangam entertained a grouse against  PW-4 thinking that he was causing obstruction to their activities. About  one year prior to the death of the deceased (on 10.4.1991) all the  accused and some others attacked the house of PW-4 by hurling bombs. As  there was no safety in the village, and  threat to his life, PW-4  started living in the house which is situated in his land at  Nakkalacheruvu. Three months prior to the present incident the deceased  Kurmi Naidu came down to Patharlapalle from Madras. All the household  supply cards which were taken away by the group of A-29 in his village  were kept in the house of A-15. So some residents of Patharlapalle sent  a petition to the Mandal Revenue Officer who came to the house of A-15  (Gorle A. Kasavayya) and seized 375 cards.  This led to further grouse  against PW-4 as he was considered responsible for such seizure of the  household supply cards. Thereafter, all the accused decided to do away  the life of PW-4. Gorle Ramarao (A-5) is the President of Yuvajana  Sangam. Some of the accused and other villagers are members of the  Sangam. On 23.12.1990 PW-5 accompanied the deceased to Visakhapatnam. On  return from Visakkhapatnam, at Ranasthalam one Komati Satyam informed  the deceased and PW-5 that Haribabu and his group were lying in wait for  Kurmi Naidu on the road leading to Patharlapalle, and thereafter they  changed their route and proceeded to Nakkalacheruvu via Theppalavalasa.   Due to fear of the Sangam headed by A-5 some persons joined in that  Sangam. A-5 asked the members to commit thefts of coconuts or carts.  Some amounts were collected in the name of Yuvajana Sangam and spent  away by A-5 for consumption of alcohol. The members of the Sangam used  to beat the followers of PW-4 and also took away household supply cards  from their houses and kept them with A-15.  

       Three weeks prior to the death of deceased when PW-4 was present  in his house, he heard A-2, A-3, A-9, A-10, A-17 and A-37 and some  others were talking in the Sangam, and it was decided to do away with  the life of PW-4 and his son (deceased Kurmi Naidu). One day prior to  death of deceased, when PW-9 went to the bank at 12 noon, he found A-1,  A-2, A-3, A-5, A-10, A-18, A-19, A-26 and A-37 and some others and at  that time A-37 was telling others that Kurmi Naidu had gone to  Srikakulam and while returning to the village he should be done to death  near Haribabu’s garden, which was suitable for the purpose. One day  prior to the death of deceased, G. Ramana (PW-10) was proceeding to the  village at about 11 p.m. and when he peeped through beneath the eves of  cattle shed of P. Ramamurthy (PW-2) he found all the accused persons. He  heard telling A-29 to other accused that the deceased Kurmi Naidu and  his father were coming in their way and therefore they have to be

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killed. He found liquor bottles with glasses. On the next day PW-10  informed PW-4 all that he had heard. But PW-4 did not heed to his words.  On the date of occurrence at about 2 p.m. while he was returning from  his land, he saw A-3 armed with crowbar like spear, A-1 armed with  wooden plank and the remaining accused persons armed with stout sticks  proceeding towards Kosta side from Peddagudibadi.

       On the date of occurrence i.e. 10.4.1991 at about 9 p.m. PW-1 left  for Srikakulam, where he collected some amount from  S.M. Pyarijan (PW- 17) and after purchasing a dhoti he came to Kasta junction. At that time  both the deceased (Kurmi Naidu and Jogulu) were coming on a motorcycle.  When PW-1 made a request to them for a lift, they agreed and all three  were proceeding towards Patharlapalle village on the motorcycle.  Similarly, V. Sreeramulu (PW-2) was returning to Surampeta village after  handing over the cycle which which he had hired from P. Jagannadham (PW- 18) at Kosta junction. D. Ankamma (PW-3) after collecting cashew nuts  and mangoes was on way to her house at Patharlapalle in the afternoon.  When deceased 1 and 2 reached about one kilometer after Derasam near the  mango grove of A-29, A-1 armed with a wooden plank beat deceased (Kurmi  Naidu) on his head. Thereafter, the motorcycle proceeded further to a  distance of 50 yards and at that place there is a culvert. At that time  A-4, A-12 and A-25 placed a cart across the road. Therefore, the  deceased persons and PW-1 stopped the motorcycle. A-5 and A-6 beat  deceased (Kurmi Naidu) with stout sticks on the head.  When the deceased  (Jogulu) guestioned the accused about such highhandedness, A-2 beat him  with a stout stick on his head and as a result of such assaults,  deceased Jogulu fell down. Thereafter A-4, A-7, A-9, A-10, A-11, A-13,  A-26 beat deceased Kurmi Naidu indiscriminately. When deceased Kurmi  Naidu fell down, A-3 poked on his throat with a spear. Then A-1, A-4, A- 7 and A-9 tied the deceased Kurmi Naidu with a rope and carried him  towards eastern side. A-23, A-24, A-27 and A-28 tied deceased Jogulu  with a rope and also carried him towards eastern side. When some of the  accused were saying that PW-1 should not be allowed to live and thought  of throwing him into a well, he ran towards eastern side. But fell down  at Lankalacheruvu tank bund. Then some of the accused beat him and tied  him in the cattle shed. At about 7 p.m., some of the accused came there  and untied him and threatened him that he should not reveal the incident  to anybody and if he revealed the same, he would be killed. Thereafter  PW-1 went to his house and informed about the incident to his elder  brother Silla Arjuna.  

       The Sub Inspector of Police, Jagannadharajapuram N. Rama Rao (PW- 24) received a phone message about the kidnapping of Kurmi Naidu on  10.4.1991 at about 5.30 p.m. Then he immediately proceeded to  Patharalapalle and he was told by the police personnel present in the  picket that persons were talking about kidnap of deceased Kurmi Naidu.  At about 9 p.m., the Inspector of Police namely, Kamalanadha Rao came to  Pathalapalle. Then they received a vague information that PW-1 who is  resident of Sillapeta had sustained injuries. Thereafter, the Sub- Inspector and the Inspector of Police proceeded to Silapeta and found  PW-1 with injuries. On the basis of PW-1’s narration, PW-24 scribed a  report. Then the Sub-Inspector went to the police station and registered  a case. He sent the original first information report to the Court. When  the Inspector of Police tried to send PW-1 to the hospital, he refused.  Then PW-25 examined PW-1 and recorded his statement and seized M.Os. 6  to 8 in the presence of mediators under mediator’s report. Then the  Inspector of Police, the Sub-Inspector and other police personnel formed  a special party and combed the area in search of the dead bodies of the  deceased in the nearby thrashing floors. On 11.4.1991, early morning at  about 5.45 a.m. they noticed two dead bodies in the mango grove of A-25,  and the motorcycle was also found nearby.  Thereafter they noticed the  place of occurrence which is at a distance of about one furlong from the  place where two dead bodies were found.                           On the basis of information lodged, investigation was done and on

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completion thereof charge sheet was filed for the alleged commission of  offences punishable under Sections 147, 148, 201, 307, 323, 326, 341,  342, 397, 302 read with Section 149 and Section 120B and 109 IPC. During  trial, Gorle Lottayyagari Satyam (A-31) died and case against Muntha  Pentadu @ Barrodu (A-33) was separated as he had absconded. PW-4 who is  the father of deceased Kurmi Naidu was stated to be the intended target.  Reliance was placed by the trial Court on the evidence of PWs 1, 2 and 3  to conclude that accusations against some have been established, though  against others it was not credible and therefore benefit of doubt was  extended to them. The High Court by the impugned judgment found that the  prosecution version was full of holes, did not appear credible and the  so-called eyewitnesses’ evidence does not inspire confidence. The  evidence of PW-1 was held to be unreliable, as the same appeared to be  the outcome of careful planning and deliberation. Though he claimed to  have sustained several serious injuries, he did not go to the hospital  for treatment for nearly three days. He did not indicate the names of  all the assailants who allegedly had beaten him. According to him, after  the incident, he went to his house and told his brother that person of  Peddagudibadi and Thatigudibedi had beaten him and the deceased. Though  he knew the names of the accused persons prior to giving the  information, he did not name them specifically. There was delay in  lodging the report and no explanation was offered for it. There was also  considerable delay in sending the FIR to the Court. There was no reason  as to why PW-4 did not lodge the report to the police though the police  outpost was situated just in front of his house, if he was really  informed by PW-1 and PW-3 as claimed by them. It was noticed that the  prosecution version was also incredible in the sense that if the accused  persons who were 39 in number had the motive of killing PW-4, they could  have done so in the village instead of going to the mango grove of A-29  and waiting for coming of deceased Kurmi Naidu and then attack him  without any motive for doing so. Neither of the deceased was their  target, and they did not have any motive for killing them. In a faction- ridden village when two rival groups were craving for the blood of each  other, the prosecution version lacks credibility and is full of  inconsistencies. The trial Court was of the view that entire evidence  was not to be discarded, and even taking note of the improvements,  discrepancies, the evidence was sufficient for conviction of some of the  accused persons. Accordingly, as noted earlier, some of the accused were  convicted and others were acquitted. Judgment of the trial Court was  assailed by the convicted accused questioning their conviction and by  State challenging the acquittals. By a common judgment, three appeals  (two by the accused and one by the State) were disposed of. The High  Court noticed that there was considerable delay in lodging the  complaint, recording statement of the witnesses and there was no cogent  material for statements. The correct yardstick to be applied for  evaluation of evidence was not done by the trial Court and vague  conclusions were arrived at. The trial Court failed to notice that the  prosecution tried to improve its case from stage to stage and from one  witness to another. That being so, the prosecution version collapsed on  account of incredibility in it. Consequentially, the High Court felt  that the accused persons were entitled to acquittal and accordingly  directed. The State’s appeal was consequentially dismissed.   

       In the present appeals, learned counsel for PW-4, father of  deceased No.1 and the State contended that the approach of the High  Court is fallacious. Considering the large number of accused persons,  minor discrepancies in evidence should not have found favour with the  High Court to direct acquittal. It was submitted that PW-1 was afraid  apprehending danger to his own life after seeing the manner in which the  accused persons assaulted and killed two innocent persons. Merely  because he did not go for medical examination immediately, though asked  by the police, that cannot be a ground sufficient to discard his  credible evidence. Merely because PWs 1, 2 and 3 were in some way  related with the accused persons, that cannot be a ground for discarding  their evidence. PW-1 was an injured person and, therefore, his evidence

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should have been acted upon, as he has sufficiently explained his  presence at the spot and has also indicated why he happened to be at the  spot of occurrence. Similarly, the non-lodging of information for long  cannot be a suspicious circumstance when one considers the mental  condition of PW-4 the father. He immediately went out to search for the  dead bodies, and was told on the next day morning about finding of the  dead bodies. Thereafter, the information was lodged around 11.30 a.m.

       It was further submitted that the High Court did not analyse the  evidence in detail and in a cryptic manner accepted the submissions of  the accused persons and directed acquittal.          Learned counsel for the accused on the other hand submitted that  the High Court has analysed the evidence after considering the findings  recorded by the trial Court.  It has highlighted as to how the  prosecution version does not inspire confidence. It is to be noted that  originally there were 39 persons. A-31 died during trial and so far as  A-33 is concerned the trial was separated. The trial Court acquitted 21  persons on the same evidence and convicted 16. The evidence is so full  of contradictions, that the benefit extended to 21 acquitted persons  should have also been applied logically to the persons who were  convicted by the trial Court, and the High Court corrected the legal  infirmities which the trial Court did not notice and came to the right  conclusion about innocence of the accused persons.  In any event, it was  pointed out that PW-1 does not speak of any attack on the deceased by A- 2. According to him deceased Jogulu (D-2) has received a single blow  which caused his death and the same was inflicted by A-10 who was  acquitted by the trial Court. PW-1 categorically involved A-10 as the  assailant of D-2. Though PWs 2 and 3 named A-2 as the assailant, that  itself improbabilises the prosecution version. Only one blow was held to  be a fatal blow and it could not have been inflicted by A-2 and A-10  separately. As there is inconsistency as regards who is the assailant of  D-2, the benefit of doubt was clearly available and the High Court has  held this to be a factor for acquitting A-2. The evidence of PW-2 and  PW-3 show that during investigation they did not name the accused  persons categorically. In a vague way, it was stated that supporters of  A-7 had hit the deceased. To a similar effect was the evidence of PWs 1  and 3. PWs 2 and 3 have also accepted about non-mentioning specifically  names of the accused persons to be the assailants. So far as PW-3 is  concerned, she stated before the Magistrate in her statement recorded  under Section 164 of the Code of Criminal Procedure, 1973 (for short the  ’Code’) that the occurrence took place at 10.00 a.m.  This is at great  variance with the prosecution version as unfolded during trial.  Additionally, she was not available for a period of 3 days and her  statement was not recorded. No explanation was offered for her absence.  Accordingly, it was submitted that the High Court’s judgment does not  suffer from any infirmity to warrant interference at our hands.  

       Though mere acquittal of large number of co-accused persons does  not per se entitle others to acquittal, the Court has a duty in such  cases to separate the grain from the chaff. If after sieving the untruth  or unacceptable portion of the evidence residue is sufficient to prove  the guilt of the accused, there is no legal bar in convicting a person  on the evidence which has been primarily disbelieved vis-‘-vis others.  But where they are so inseparable that any attempt to separate them  would destroy the substratum on which the prosecution version is  founded, then the Court would be within its legal limits to discard the  evidence in toto. In the aforesaid background, the evidence of PWs 1, 2  and 3 who are stated to be eyewitnesses is to be analysed. The High  Court has doubted the truthfulness of the PW-1 who claimed that he did  not get medically examined being afraid of the accused persons. That is  clearly unacceptable. He claimed to have stated before the police  officers about the incident and on the basis of that the first  information report was recorded. Thereafter, there was no reason for him  to be apprehensive as claimed not to go for medical treatment. If really  he was so terrified it is not understood as to how after two days the

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fear vanished and he went for treatment. The conduct of PW-4, the father  of deceased No.1 is equally shrouded in mystery. Though the Police post  was just in front of his house, he did not choose to inform the police  and the FIR was lodged after considerable length of time. Though in all  case delay in lodging the FIR does not attract suspicion, yet on the  facts of a particular case the same is certainly a factor to be  considered. In the case at hand, in the absence of any plausible  explanation for the delay, it certainly was a suspicious circumstance  making the prosecution version vulnerable. In this case the occurrence  allegedly took place at about 4.00 p.m. on 10.4.1991, FIR was lodged at  about 11.30 p.m. and reached Court at about 10.00 a.m. on 11.4.1991.   The delay, considering the fact that there was police outpost just in  front of PW4’s house and Court was  at a very short distance, has not  been explained. Additionally, as rightly submitted by learned counsel  for the accused-respondents, A-2 was not indicated to be the author of  the assaults so far as deceased Jogulu is concerned There is clear  contradictions between the version of PW-1 on the one hand and PWs 2 and  3 on the other as regards the assailants of deceased No.2 (Jogulu). The  evidence of PW-3 who claimed to have informed PW-4 is equally baffling.  She has accepted before the Magistrate in her statement recorded under  Section 164 of the Code that the occurrence took place at 10.00 a.m. One  more thing which needs to be noticed to cast doubt on the evidence of  PW-1 is that he claimed to have received the money from PW-17, at about  2.00 p.m. and then to have returned. Thereafter he had left for  returning home. On the contrary PW-17 states that money was paid at  11.00 a.m. That itself throws doubt regarding the possibility of his  presence at the alleged time of occurrence. Several other factors which  throw considerable light on vulnerability of the prosecution version are  the alleged search by PW-4 and others for the dead bodies. According to  the prosecution version, the dead bodies were found 15 to 20 yard from  the culvert near which the alleged occurrence took place. It is highly  improbable that when PW-4 went for searching the dead bodies on  allegedly getting information about the assaults, they could not trace  the bodies. The plea that he could not lodge the FIR and had to wait for  searching by police which purportedly got the dead bodies early in the  morning is equally implausible. Even if that is accepted for the sake of  argument it is absolutely not explained in any manner why the FIR could  not be registered immediately thereafter and several hours had to pass  by. Though the FIR is not supposed to an encyclopedia of the factors  concerning the crime, yet there must be some definite information vis-‘- vis the crime. That does not appear to be the case at hand. Similarly,  PWs-2 and 3 accepted that they did not specifically name any accused  person during investigation, and only said that followers of A-7 were  the assailants. That is not sufficient when definite names were stated  in Court. This is not an elaboration of a statement already made, and on  the contrary is a vital omission. Certain other factors, which otherwise  would not have been of much relevance, have assumed importance in the  present case. If PW-1 had stated before the police, the details as  contained in the FIR, there was really no necessity of calling a dog  squad on 11.4.1991.  This to a great extent shows that the police were  not sure who the assailants were. Admittedly, dog squad was taken to the  place of occurrence at about 1.00 p.m. on 11.4.1991, and dogs were taken  to various houses in the village to know about the assailants.  PW-24’s  statement that dogs are taken when assailants are not known is very  significant. It cannot be said that view taken by the High Court is not  a possible view.  

The respective stands need careful consideration.  There is no  embargo on the appellate Court reviewing the evidence upon which an  order of 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

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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. In a case  where admissible evidence is ignored, a duty is cast upon the appellate  Court to re-appreciate the evidence where the accused has been  acquitted, for the purpose of ascertaining as to whether any of the  accused really committed any offence or not. [See Bhagwan Singh and Ors.  v. State of Madhya Pradesh (2002 (2) Supreme 567). The principle to be  followed by appellate Court considering the appeal against the judgment  of acquittal is to interfere only when there are compelling and  substantial reasons for doing so.  If the impugned judgment is clearly  unreasonable and relevant and convincing materials have been  unjustifiably eliminated in the process, it is a compelling reason for  interference. These aspects were highlighted by this Court in Shivaji  Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973  SC 2622),  Ramesh Babulal Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant  Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v.  State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab v.  Karnail Singh (2003 (5) Supreme 508 and State of Punjab v. Pohla Singh  and Anr. (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and Anr. (JT  2003 (9) SC 17).  

That being so, it would not be appropriate in the circumstances of  the case to interfere with the elaborately discussed and well-reasoned  judgment of the High Court. The appeals fail and are dismissed.