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PETITIONER: IRLAPATI SUBBAYYA

       Vs.

RESPONDENT: THE PUBLIC PROSECUTOR, ANDHRA PRADESH

DATE OF JUDGMENT14/03/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1974 AIR  836            1974 SCR  (3) 602  1974 SCC  (4) 293

ACT: Supreme    Court   (Enlargement   of   Criminal    Appellate Jurisdiction)  Act 1970--Appeal against  acquittal--Duty  of the High Court while interfering with the acquittal.

HEADNOTE: The  appellant  was charged for  offences  punishable  under sections  302, 325 and 323 read with sec. 34 of  the  I.P.C. along  with three others.  The Sessions Court acquitted  the appellant.   The  High  Court set aside  the  acquittal  and convicted  the  appellant upon the, plea of,  the  appellant that  the  High  Court  had erred  in  its  appreciation  of ,evidence.   The  Court went through the entire  record  for itself  as the appellant had approached the Court under  the Criminal Jurisdiction newly created. Allowing the appeal, HELD  : (1) That, the conviction by the High Court  was  not based  on  complete  cr comprehensive  appreciation  of  all features   of  the  case,  which,  taken  together  cast   a reasonable  doubt  on the prosecution  version.   There  was considerable  uncertainty  about the time and the  place  at which  the  incident  took  place.   The  evidence  of   the witnesses  that  there was considerable  bleeding  from  the injury  of the deceased was inconsistent with total  absence of blood at the place of occurrence.  The prosecution  tried to  prove that there were 3 blows struck on the head of  the deceased,  but  this  was  not  supported  by  the   medical evidence. [606C; B] (II) Held  further that the High Court failed to attach  due weight  to  the assessment of evidence by  the  trial  court which had the additional advantage of seeing the  ,witnesses depose in the witness box. [606D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION’: Criminal Appeal No. 229 of 1970. From  the judgment and order dated the 29th September,  1970 of  the Andhra Pradesh High Court at Hyderabad  in  Criminal Appeal No. 891 of 1969. K.   T. Harindranath and G. S. Rama Rao, for the appellant.

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P.   Ram Reddy and P. P. Rao, for the respondent. The Judgement of the Court was delivered by BEG   J.-The   appellant  was  charged,   with   his   three brothers-in-law,  Bayyarapu Butchiah,  Bayyarapu  Chandriah, and Bayyarapu Kotayya for offences punishable under  Section 302, 325, and 323 Indian Penal Irlapati Ramayya and  causing grievous hurt to Ankayya, P.W. 2, and simple injury to China Veerayya,  P.W. 1, at about 4.30 p.m., on 15-6-69, in  front of  house  of Vipparla Peda Veerayya  in  Village  Vipparla. District  Guntur in the State of Andhra Pradesh.  They  were tried and acquitted by the learned Sessions’ Judge of Guntur who  attached considerable importance to the supposed  delay in  lodging  the  First Information Report  of  the  alleged occurrence  at  10.30  p.m. on 15-6-69  at  Police  Station, Sattonapalli, 13 miles away from the scene of the  incident. The prosecution had a sufficiently good explanation for  the supposed  delay inasmuch as the wife and other relations  of the  deceased  were  busy trying  to  get  adequate  medical attention  for  the deceased before thinking of  making  the F.I.R. The High Court had, on an 603 appeal  to it, considered this and other questions  involved in the case and convicted and sentenced the appellant  under Section   302  to  life  imprisonment  and   awarded   other appropriate  sentences under Sections 325 and 323 I.P.C.  to him.   The  High  Court had convicted the  three  other  co- accused  under  Sections  323 and 324 I.P.C.  only  and  had sentenced them to a fine of Rs. 150/- only, and, in  default of  payment Of fine, to three months rigorous  imprisonment, Consequently, the appellant, had his right to appeal to this Court  against the reversal of the order of  his  acquittal. The  co-accused  not being in  that  advantageous  position, could not obtain any special leave to appeal. As  this is an appeal, in exercise of a newly created  right of  appeal to this Court, we have examined the  evidence  on record.   The points raised on behalf of the  appellant,  on this evidence, are mentioned below. Firstly, it is pointed out that P.W.1, P.W. 2, P. W. 3,  and P.W.  4, as well as P.W. 10, and P.W. 11, are  relations  of the deceased, highly interested in securing the  convictions of  the appellant on account of partisanship.  It was  urged that  P.W.  5 and P.W. 6, were wrongly  treated  as  alleged "independent witnesses" by the High Court.  It was suggested to the prosecution witnesses, in the course of their  cross- examination,  that the real occurrence took place  elsewhere and  consisted of long drawn out stone pelting by two  sides during  the  day  in the course of  which  both  sides  were injured.   In support of this version, reliance  was  placed upon  several  tell-tale, or, at  least,  highly  suspicious circumstances  which  were not adequately explained  by  the prosecution.  Secondly, no blood was found anywhere near the Neem  tree in front of the house of P.W. 3,  Peda  Verrayya, where the occurrence is said to have taken place.   Thirdly, it was established, from the statement of the  investigating officer,  that  the trunk of the Neem tree under  which  the alleged  occurrence took place was about 5 to 6 ft. high  so that no lathis could be lifted and brought down to beat  the injured  without obstruction by branches as was admitted  by Lakshmayya.   P.W. 4, and China Veerayya, P.W. 1.  Fourthly, the site plan showed quite a number of stones lying at  some distance from the scene of occurrence.  Fifthly, a number of independent  witnesses, apart from the ones  examined,  (who are   all  characterised  by  the  appellant’s  Counsel   as "partisan  witnesses",)  were said to be available  but  not examined.   Although  this  was admitted as a  fact  in  the

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Committing Magistrate’s Court by P.W. 1, a new version  was, it  was submitted, given at the trial.  Sixthly, there  were injuries  upon  the  appellant’s body  which  had  not  been explained  by  the prosecution version  although  a  belated attempt had been made by Lakshmayya, P.W. 4, at the trial to explain  these injuries by alleging that the four  injuries, all  on the head of the appellant, which, according  to  the Doctor, could be caused by stone throwing also, were  caused by  P. W. 4. This new version was, it was urged,  incredible in view of the prosecution case of the aggressiveness of the accused  and youthfulness of P. W. 4, aged 22, who  admitted that  he had run away as he was afraid of being beaten  ’and was chased.  It was pointed out that his attempt to  explain the  injuries  on  the head of  the  appellant  was  neither consistent with the earliest prosecution version nor with 604 statements  of  other prosecution witnesses  where  no  such incident  is mentioned.  It was, therefore,  submitted  that this belated attempt was not an explanation at all but  only an  indication  of falsehood and fabrication  In  the  case. Seventhly,   we  were  taken  through  the   statements   of prosecution  witnesses, P. W. 1, P.W. 2, P. W. 3, P.  W.  4, P.W.  5, P.W. 6, as to the time of the occurrence which  was variously  stated by them to have taken place  at  different times  between  noon  and  just  before  sunset.   This  was certainly  a  most  unusual variation  which  could  not  be explained  by mere inability of villagers to give the  exact time,  The villagers had described the time by reference  to "baras"  before sunset and the colour of the sun  which  was described  as  red  by one witness so that  it  was  nearing sunset.  according  to him, at the time of  the  occurrence. This  feature of the evidence was more consistent with  some long drawn out occurrence such as stone throwing or with the fact that all the alleged witnesses could not be there.   In any  case, they could not be there at the same time.   Their versions,  therefore,  appear highly  suspicious.   Eightly, there  were variations in the statements of witnesses  about the  time  and  place at which China Veerayya,  P.W.  I  and Ankayya,  P. W. 2, were said to have been beaten.   Sayamma, P.  W. 10, for example had stated that Ankayya, P. W. 2  was beaten at a distance of 10 to 15 yds. from the house of Peda ’Veerayya, P.W. 3 at the junction of North South streets and East  West  street.  Sub-Inspector Perayya, P.W.  22  stated that this junction was about 60 to 70 yds. from the house of Peda Veerayya.  Venkamma, P.W. 12 had stated that the  place where Ankayya, P.W. 2 fell was at a distance of only 1 or  2 yds.  from the house of Peda Veerayya, P.W. 3. According  to the  appellant’s  Counsel,  the  cumulative  effect  of  the features  mentioned  above and of even  minor  discrepancies which would, in a different context-. be quite  unimportant, was  to indicate that the witnesses had not really  seen  or described  the occurrence as it took place but were  putting forward a substantially incorrect version. In reply, some attempt has been made to explain the  absence of  blood from the scene of occurrence by pointing out  that China  Veerayya, P.W. 1 had stated that the deceased  had  a head gear.  I, that was so, the extent of the injury on the, head was really difficult to reconcile with the post  mortem report which described the injuries of Ramayya, deceased  as follows;               "1. Lacerated injury scalp 8 cm x I cm. placed               over   internal  parietal  area  in   anterior               posterior direction.  Cephalo hematoma present               extending over left parietal, occipital, right               parietal and temporal areas.

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             2.    Contusion  of  size 8 cm x  5  cm.  over               outer and upper part of left fore arm.               3.    Three   small   superficial    abrasions               anterially below right knee joint".               The Doctor had also stated               "On   dissection  of  injury  No.   1   showed               extensive   aphalo  hematoma  involving   left               parietal, occipatal and right parietal               605               and   temporal  areas   comminuted   depressed               fracture  of vault of scalp involving  frontal               bone  5 cm. in anterior  posterior  direction.               Part  of the left perietal bone  detached  and               broken into three pieces and lying loose  over               brain,  fissured fracture extending upto  left               temporal bone.  Right parietal bone  fractured               transversely upto three centimetres, occipital               bone  fractured  and fissure  fracture  placed               obliquely  towards  right for  3  cms.   Brain               membrances    found   contused    showed    no               lacerations". It  was  urged  that  a "hematoma"  does  not  produce  much bleeding.   We do not think that the injuries  alleged  have been inflicted on the head with sticks are of such a  nature that they would not produce considerable bleeding. in  fact, the  Doctor  said  that the scalp was  covered  with  blood. Therefore, the attempt to explain the mysterious absence  of any  blood  from the alleged place of occurrence  is  rather feeble. We  also  find  that the account given  by  the  prosecution witness  does not fit in with the medical evidence  inasmuch as  not  only  was the appellant said to  have  beaten  the. deceased  with a stick on his head but another  accused  was said  to. have poked him on the chest with his  stick  first and then beaten him on his left hand, still another  accused was  alleged  to  have  given a blow with  a  stick  on  the forehead  of the .deceased, and the fourth accused was  said to  have  struck the deceased on the left side of  the  head just above the ear.  The three injuries indicated  aboveshow that no blow was’ struck on the forehead of the deceased  at all.   The   superficial abrasions below the knee  could  be very well due to the falling.  Thus, there were really  only two  injuries on the head.  It may be that the first  injury was due to more than one blow on the head.  The Doctor  was, however, not questioned on this aspect.  There were, in  any case,  certainly  not  four  injuries on  the  body  of  the deceased. The  Doctor who performed the post mortem had said that  the injury  which caused the death could be due to striking  the deceased’s  head with a blunt object like a stick  but  that "it is also possible that injury No. I could be caused by "a stone of 3" or even more".  The Doctor admitted that  injury on-the  knee could be caused by a fall on a  rough  surface. He found the scalp was so profusely covered with blood  that he  could not completely examine the injury.  Thus  bleeding appears to have been considerable.  Hence, absence of  blood from the alleged place of occurrence appears to US to carry. a significance which the High Court ignored. We  may also mention that the nature of the incident set  up by  the  prosecution itself shows that there was  a  dispute over  the  possession and construction of a  house  for  the repairs of which about 400 stones had been collected.  On an occasion  prior to the actual occurrence, the appellant  was said  to have been obstructed from carrying stones.  it  was alleged that he had, for this reason, beaten Sayamma and her

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mother  who were said to have obstructed him.   A  constable was said to have come to the village at about noon oft 606 the  day of occurrence to investigate, aid, thereafter,  the incident  is  alleged  to have taken  place.   The  incident alleged by the prosecution certainly did not occur while the constable was still there. There is considerable uncertainty about the time as, well as the  place at which the incident took  place.   Furthermore, the injuries on the appellant had not been explained.  Apart from  the  features  mentioned already,  we  find  that  the village Munsif, who was available for a complaint about  the incident was not informed.  This suggests that the party  of the prosecution witnesses had something, like stone throwing by  them, to hide.  The deceased was also not taken  to  the nearest dispensary to get his wounds dressed. We  are,  therefore, not satisfied that the High  Court  had rightly?  interfered with the order of acquittal  passed  by the Trial Court.  The view of the High Court is not based on a complete or comprehensive appreciation of all the features of the case which taken together, cast a reasonable doubt on the prosecution version. It is well established that, in  an appeal    against  acquittal, the appellate Court  ought  to attachdue  weight to the assessment of evidence  by  the Trial Court which has had the additional advantage of seeing the witnesses depose in the witness box. We,   therefore,  allow  this  appeal  and  set  aside   the conviction  and sentence of the appellant who shall  be  set free forthwith unless wanted in some other connection . S. B. W.                        Appeal allowed. 607