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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: GOWTHU RANGHUNAYAKULU AND ORS.

DATE OF JUDGMENT19/11/1986

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1987 AIR   40            1987 SCR  (1) 327  1986 SCC  (4) 764        JT 1986   909  1986 SCALE  (2)839

ACT:     Criminal  procedure Code, 1973--Section 354--High  Court Judgment  acquitting  all accused--Evidence  of  prosecution witness  who were eyewitnesses to a gruesome murder--Not  at all considered and marshalled-Points for decision not formu- lated--Judgment set aside--Case remanded to High Court.

HEADNOTE:     The  ten  accused  persons forming  themselves  into  an unlawful assembly in the house of A-1 and arming  themselves with  spears,  sticks and crow-bars  attacked  the  deceased while  he  was returning from the canal  carrying  water  in ’Kavadi’.  As  a  result of the injuries  sustained  by  the deceased he died. All the ten accused were charged under  s. 147 I.P.C. accused A-1, A4, A5 and A-6, who were armed  with deadly  weapons  were also charged under s. 148  I.P.C.  and accused  A-1 to A-I0 were further charged under s. 302  read with s. 149 I.P.C.     The  trial Court acquitted A-4, A-9 and A-I0 of all  the charges levelled against them. Accused A-1 to A-3 and A-5 to A-8 were convicted u/s. 147 I.P.C. and sentenced to  undergo rigorous imprisonment for one year. Accused A-I, A-5 and A-6 were  convicted  u/s. 148 I.P.C. and  sentenced  to  undergo rigorous  imprisonment for two years. Accused A-1, A-2,  A-5 and  A-6 were convicted u/s 302 read with s. 149 I.P.C.  and sentenced  to  death.  Accused A-3, A-7 and  A-8  were  also convicted u/s. 302 read with s. 149 I.P.C. but sentenced  to undergo imprisonment for life.     The High Court allowed the appeals flied by the convict- ed accused and acquitted all of them of the charges levelled against them and rejected the reference. Allowing the appeal of the State to this Court,      HELD: 1. The judgment passed by the High Court  acquit- ting all the accused is not a proper judgment in  accordance with the provisions of s. 354 of the Code of Criminal Proce- dure  1973. The learned Judge has not at all considered  and marshalled  the evidence of witnesses examined on behalf  of the prosecution particularly the evidence of PWs. 1, 3, 4, 6 and 7 who were eye witnesses to the gruesome murder  commit- ted in the morning at about 7.30 a.m. 328

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The  names of all the seven accused appeared in  the  F.I.R. [330 C]     2.  The  learned Judge approached the  case  from  wrong angle and without properly formulating the points for  deci- sions  and  without any proper appraisal  of  the  evidences adduced by the prosecution to prove the guilt of the accused persons  and also without adverting to the reasoning of  the Sessions  Judge, has perfunctorily come to the finding  that the  prosecution has failed to prove beyond doubt  the  case against  the  accused even though  there  are  eye-witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurrence. [330 E]     3.  The judgment of the High Court is set aside and  the case  is remitted back to the High Court for deciding it  in accordance with law on a proper appraisal and marshalling of the evidence on record as early as possible. [330 F-G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  12 of 1978     From  the  Judgment  and Order dated  19.4.1976  of  the Andhra Pradesh High Court in Referred Trial No. 2 of 1976. K. Ram Kumar for the Appellant. G. Narasimhulu and S.K. Mehta for the Respondents. The Judgment of the Court was delivered by     B.C. RAY, J. This appeal by special leave is against the judgment and order dated 19.4.1976 made by the High Court of Andhra  Pradesh  in  the Referred Trial No. 2  of  1976  and Criminal Appeal Nos. 159, 168 and 169 of 1976 acquitting all the  7 accused who were convicted and sentenced by the  Ses- sions Court, West Godawari Division at Eluru, Andhra Pradesh in Sessions Case No. 71 of 1975.     The prosecution case in short is that on 23rd July, 1974 at 7.30 a.m. the accused persons forming themselves into  an unlawful assembly in the house of the 1st accused and arming themselves  with spears, sticks and crow-bars  attacked  the deceased  while  he was returning from  the  canal  carrying water  in  what is locally known as "Kavadi". When  the  de- ceased  reached  the house of the 1st accused, all  the  ten accused  came  from behind and the 2nd accused gave  a  blow with  a stick on the back of the head of the deceased  as  a consequence of which he fell down on his back. Then the  1st accused  speared the deceased on his face and legs, the  5th accused  poked the deceased on his right wrist with a  crow- bar and the 6th accused speared the deceased on his legs and hands. The 329 rest  of  the accused then beated the deceased  with  sticks indiscriminately. The deceased cried "Bobu". This was  heard by  his wife (P.W.5) from her house which is situated  about 150 yards. She immediately ran to the scene of occurence and saw accused 1 to 8 and two others entering into the house of the 1st accused. P.W. 5 then sent intimation to her  brother P.W.  2  who  was working as labourer  in  a  sugar  factory through  P.W.  8.  P.W. 2 and others took  the  deceased  to Bhimadole  Police  Station in a cart which is about  4  kms. away from their house and lodged the F.I.R., Ex. P-1 wherein all the names of accused Nos. A1 to A4 and A6 to A8 as  well as  the  nature of injuries inflicted on the person  of  the deceased  were  mentioned. This FIR was registered  at  9.30 a.m. and a case u/s 326 I.P.C. was registered. Subsequently, the  deceased was found dead on examination by  the  Doctor, P.W.  12 at the Government Hospital, Elurn. The  F.I.R.  was then  altered to one u/s 302 I.P.C. The Inspector of  Police

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made  inquest  of the dead body and the inquest  report  has been  marked as Ex. P5. All the 10 accused were charged  u/s 147 I.P.C. The accused Al, A4, A5 and A6 who were armed with deadly weapons were also charged u/s 148 I.P.C. and  accused A1 to A10 were charged u/s 302 read with section 149  I.P.C. They were all committed to the Court of Sessions.     The Sessions Judge after considering the entire evidence and also heating the counsel for the prosecution as well  as the  defence found that accused A 1 to A3 and A5 to A8  were guilty  of the offence u/s 147 I.P.C. and also u/s 302  read with section 149 I.P.C. A1, A5 and A6 were also held  guilty u/s  148  I.P.C.  The accused A4, A9 and  A10  were  however acquitted of the offence u/s 147 I.P.C. Accused A4 was  also not found guilty of offence u/s 148 I.P.C. The accused A  1, A5  and A6 who were convicted u/s 302 read with section  149 I.P.C. were sentenced to death and they were directed to  he hanged by their necks till their death subject to  confirma- tion by the High Court. A3, A7 and A8 were convicted u/s 302 read  with  section 149 I.P.C. and they  were  sentenced  to undergo  imprisonment for life. A2, was also  convicted  u/s 302  read  with section 149 I.P.C. and he was  sentenced  to death   and  directed  to  be  hanged  by  his   neck   till death.subject to confirmation by the High Court. The accused A1 to A3 and A5 to A8 who were convicted u/s 147 I.P.C. were sentenced to undergo rigorous imprisonment for one year. A1, A5  and A6 were convicted u/s 148 I.P.C. and they were  sen- tenced to rigorous imprisonment for two years. All the above sentences were to run concurrently.     Against this judgment and order 3 criminal-appeals being Criminal  Appeal Nos. 159/1976, 168/1976 and  169/1976  were filed. These criminal appeals along with R.T. No. 2 of  1976 were  heard by the High Court of Andhra  Pradesh,  Hyderabad and  the  learned  Judge by his order dated  5th  May,  1976 acquitted all the accused of both the charges of rioting and murder levelled 330 against  them  and set aside the convictions  and  sentences allowing all the appeals and rejecting the reference.     It is against this judgment and order the instant appeal on  special leave was filed before this court by the  State. This  court  granted special leave to appeal  by  its  order dated 11.1.1978 and also ordered issue of bailable  warrants against each of the accused persons in the sum of  Rs.10,000 with  one surety to the satisfaction of Additional  Sessions Judge, Eluru.     We  have heard the learned counsel for both the  parties and  we are constrained to hold that the judgment passed  by the  High Court acquitting all the accused is not  a  proper judgment in accordance with the provisions of Section 354 of the  Code of Criminal Procedure 1973. The learned Judge  has not at all considered and marshalled the evidences  examined on  behalf of the prosecution particularly the evidences  of PWs 1, 3, 4, 6 and 7 who were eye witnesses to the  gruesome murder committed in the morning at about 7.30 a.m. The names of  all the 7 accused appeared in the F.I.R. lodged by  PW-2 in the Police Station at 9.30 a.m., Ex. PI and Ex. P.23  and P.24  dated 23.7.1974. The learned Judge did  not  formulate properly  the  points for decision and did not  marshal  the evidences on record and did not come to specific finding  on each  of the points for determination by recording  specific reasons for arriving at the decision. It is really  unfortu- nate  that the learned Judge approached the case from  wrong angle and without properly formulating the points for  deci- sion  and  without  any proper appraisal  of  the  evidences adduced by the prosecution to prove the guilt of the accused

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persons and also without adverting to the reasonings of  the Sessions  Judge, has perfunctorily come to the finding  that the  prosecution has failed to prove beyond doubt  the  case against  the  accused even though  there  are  eye-witnesses P.Ws. 1, 3, 4, 6 and 7 to the occurence.     In  our  considered  opinion, this judgment  is  not  in accordance  with the mandatory requirements as laid down  in Section 354 of the Code of Criminal Procedure. We therefore, set aside the judgment and order of acquittal passed by  the High Court of Andhra Pradesh and remit the ease back to  the High Court, Andhra Pradesh for deciding the case in  accord- ance  with law on a proper appraisal and marshalling of  the evidences  on  record  as early as possible.  The  order  of interim  stay is vacated and bail bonds are  cancelled.  The records be sent to the High Court forthwith. The High  Court will  be  free to consider whether the accused will  be  en- larged on bail. A.P.J. 331