Gamini Bala Koteswara Rao & Ors vs State Of A.P. Thr.Secretary

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 -7-

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 -8-

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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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.